                                                                              FILED
                             NOT FOR PUBLICATION                              MAY 28 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


AUCTION BLOCK COMPANY and                        No. 14-72609
HARBOR LEASING, LLC,

              Petitioners,
                                                 MEMORANDUM*
 v.

FEDERAL MARITIME COMMISSION
and UNITED STATES OF AMERICA,

              Respondents,

CITY OF HOMER,

              Respondent-Intervenor.


                     On Petition for Review of an Order of the
                         Federal Maritime Commission

                       Argued and Submitted May 14, 2015
                               Anchorage, Alaska

Before: CANBY, BYBEE, and WATFORD, Circuit Judges.

      The Federal Maritime Commission correctly dismissed petitioners’

complaint for lack of jurisdiction. The parties agree that the Commission had


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                            Page 2 of 4
jurisdiction only if the City of Homer qualifies as a “marine terminal operator”

under the Shipping Act of 1984, 46 U.S.C. § 40101 et seq.1 The Act defines

“marine terminal operator” as “a person engaged in the United States in the

business of providing . . . terminal facilities in connection with a common carrier.”

Id. § 40102(14). “Common carrier,” in turn, is defined as a person transporting

passengers or cargo through the use of “a vessel operating on the high seas . . .

between a port in the United States and a port in a foreign country.” Id.

§ 40102(6).

      The City of Homer provides terminal facilities to common carriers at the

Deep Water Dock and the Pioneer Dock. But petitioners’ complaint arises out of a

dispute involving the City’s Fish Dock. The Commission determined that the City

is not a “marine terminal operator” with respect to the Fish Dock because, while

the City provides terminal facilities there, it does not do so “in connection with a

common carrier.” Id. § 40102(14).



      1
         Petitioners argue that the Commission dismissed this case for lack of
personal jurisdiction, rather than subject matter jurisdiction, and that the City
waived the issue below. We reject that argument. Whether the Commission has
the statutory authority to adjudicate this dispute is plainly a matter of subject
matter jurisdiction, and therefore the issue cannot be waived. See Transpacific
Westbound Rate Agreement v. Fed. Maritime Comm’n, 951 F.2d 950, 957 (9th Cir.
1991); New Orleans S.S. Ass’n v. Plaquemines Port, Harbor & Terminal Dist., 23
S.R.R. 1363, 1371 (FMC 1986).
                                                                              Page 3 of 4
      We find no error in the Commission’s determination. Petitioners have

conceded that they are not common carriers, and they have produced no evidence

that any other common carriers call at the Fish Dock. The only question, then, is

whether the Commission permissibly interpreted the definition of “marine terminal

operator” as calling for a facility-specific analysis.

      We conclude that the Commission’s interpretation is entitled to deference

under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984). The Shipping Act is silent on the question posed here—whether, in

interpreting the definition of “marine terminal operator,” the Commission should

consider all facilities operated by the defendant or just the facilities at issue in the

dispute. The agency reasonably chose the latter interpretation. Premising

jurisdiction on all facilities operated by a defendant would potentially create absurd

results inconsistent with the purposes of the Shipping Act. Congress intended the

Shipping Act to limit abusive behavior by steamship lines given the limited

antitrust immunity such lines receive under the Act. The Commission’s regulatory

authority therefore covers common carriers and those marine terminal operators

whose facilities are necessary for common carriers to conduct their business. The

Commission reasonably concluded that it makes little sense to bring into its

regulatory ambit all facilities operated by an entity merely because a single one of
                                                                           Page 4 of 4
them is connected to international marine transportation. Adopting a contrary

interpretation would compel the Commission to decide cases entirely unrelated to

the carriage of cargo by sea—involving, for example, an inland railyard or

warehouse owned by the defendant—so long as the defendant provided terminal

facilities to common carriers at another location. The facility-specific

interpretation adopted by the Commission reasonably limits its jurisdiction to those

cases with a connection to international shipping.

      Petitioners contend that the Commission committed various evidentiary

errors in the course of rendering its decision. Any such errors are harmless, as

none of the excluded or included evidence suggests that the Fish Dock services

common carriers. We deny petitioners’ motion to compel the Commission to file

the complete agency record before this court. Any unfiled documents to which

petitioners make reference, if indeed any remain unfiled, have no bearing on

whether common carriers call at the Fish Dock.

      Finally, the Commission did not err in granting the City’s motion to strike

and motion for sanctions. The Commission’s rulings were reasonably premised on

petitioners’ misconduct in discovery.

      PETITION DENIED.
