 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT




Argued September 21, 2015           Decided December 15, 2015

                         No. 14-1044

                    ADEBISI ADENARIWO,
                       PETITIONER

                               v.

  FEDERAL MARITIME COMMISSION AND UNITED STATES OF
                     AMERICA,
                    RESPONDENTS



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



     Daniel A. Bushell argued the cause and filed the briefs for
petitioner.

    Tyler J. Wood, Deputy General Counsel, Federal
Maritime Commission, argued the cause for respondents.
With him on the brief were William J. Baer, Assistant
Attorney General, U.S. Department of Justice, Robert J.
Wiggers, Attorney, and Lauren M. Engel, and William H.
Shakely, Attorney Advisors, Federal Maritime Commission.
                              2
   Before: HENDERSON, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.

   Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

     SENTELLE, Senior Circuit Judge: Petitioner Adebisi
Adenariwo petitions for review of two Federal Maritime
Commission decisions relating to the loss of concrete
masonry equipment shipped from the United States to Nigeria
in two separate shipping containers. Transportation of the
equipment was organized and carried out by BDP
International (BDP) and Zim Integrated Shipping, Ltd. (Zim).
Adenariwo filed with the Commission two identical
complaints against Zim and BDP, alleging that they had
engaged in unreasonable practices when handling the
equipment, in violation of Section 10(d)(1) of the Shipping
Act of 1984, 46 U.S.C. § 41102(c). The Commission
dismissed Adenariwo’s claims as to the equipment in the first
container, but awarded Adenariwo reduced reparations for the
loss of the equipment in the second container. Because we
conclude that Adenariwo’s petition for review of the
Commission’s decision relating to the first container was
untimely under the Hobbs Act, 28 U.S.C. §§ 2342(3)(B),
2344, we dismiss the portions of his petition relating to that
container for lack of jurisdiction. Because we conclude that
the Commission improperly reduced Adenariwo’s award for
the loss of the equipment in the second container, we vacate
the decision relating to that container and remand for award of
the full amount supported by the record without mitigation
and permitted under 46 C.F.R. § 502.301(b).
                               3
                     I. BACKGROUND

A. Facts

     Adenariwo is the owner and principal of MacBride
Nigeria, Ltd. (MacBride), a producer of concrete masonry
products in Lagos, Nigeria. In 2008, MacBride purchased
equipment from Nethamer Ltd., a U.S.-based company. BDP,
a licensed freight forwarder, arranged for the transportation of
the equipment from the U.S. to Nigeria by Zim, a vessel-
operating common carrier. Zim shipped the equipment to
Nigeria in two containers. The first shipment (Container 1)
arrived in Nigeria on or around April 17, 2008, but because of
errors in the bill of lading, not the fault of MacBride, it was
not released to MacBride and demurrage fees began to accrue.
The second container (Container 2) arrived one month later,
but LANSAL, Zim’s agent, refused to release it until
MacBride paid the outstanding demurrage fees for Container
1. As a result, demurrage fees began to accrue on Container 2
as well. Ultimately, Nigerian Customs officials seized both
containers and the equipment was auctioned off.

B. Administrative and Federal Court Proceedings

     On May 3, 2011, Adenariwo filed two separate but
identical complaints—Informal Docket Nos. 1920(I) and
1921(I)—against BDP and Zim for informal adjudication
under subpart S of the Commission’s Rules of Practice and
Procedure. See 46 C.F.R. §§ 502.301-305. The complaints
allege that BDP and Zim violated Section 10(d)(1) of the
Shipping Act of 1984, 46 U.S.C. § 41102(c), by engaging in
unreasonable practices when handling the concrete masonry
equipment. While Adenariwo alleges that he suffered a loss
of $240,606 per container, he chose to pursue his claims
through the informal adjudication process, which is limited to
                              4
claims of $50,000 or less. See 46 C.F.R. § 502.301(b). Thus,
Adenariwo sought a total of $100,000 or $50,000 per
container.

    Pursuant to the Commission’s Rules, a settlement officer
was appointed to handle both informal dockets. On May 26,
2011, for purposes of clarity, the settlement officer deemed
Informal Docket No. 1920(I) to seek reparations for Container
1 and Informal Docket No. 1921(I) to seek reparations for
Container 2. The settlement officer also ordered that the
dockets be consolidated, but stated that the consolidation
would not affect Adenariwo’s requested relief.

     On April 18, 2012, the settlement officer issued a
decision and order dismissing the claim relating to Container
1 for failure to timely file the complaint within the Shipping
Act’s three year statute of limitations, see 46 U.S.C.
§ 41301(a), and ordering Adenariwo to obtain a valid
assignment from MacBride of the Container 2 claim in
Informal Docket No. 1921(I). Adenariwo timely filed a
petition for reconsideration of the settlement officer’s
decision to dismiss Informal Docket No. 1920(I), which the
settlement officer denied. In another decision issued that
same day, the settlement officer also determined that
(1) MacBride had assigned its claims to Adenariwo and (2)
Zim had violated Section 10(d)(1) of the Shipping Act by
refusing to release Container 2 because of the unpaid
demurrage fees from Container 1. See Adebisi A. Adenariwo
v. BDP Int’l, Zim Integrated Shipping, Ltd. and Its Agent
(LANSAL) et al., Informal Dkt. No. 1921(I), at 8-11 (F.M.C.
Mar. 7, 2013). The settlement officer awarded Adenariwo
reparations in the amount of $18,308.94 for the loss of the
equipment in Container 2, but denied Adenariwo the
remainder of his requested relief finding that he could have
mitigated his losses by paying the demurrage fees on the two
                              5
containers, thereby securing the release of the equipment in
Container 2. Id. at 11-16.

     Pursuant to the Commission’s rules governing informal
adjudications, the Commission has discretionary authority to
review a settlement officer’s decision. See 46 C.F.R.
§ 502.304(g). On March 22, 2013, the Commission declined
to review the settlement officer’s decision not to reconsider
the dismissal of Informal Docket No. 1920(I), stating that the
decision was “administratively final.” On April 10, 2013, the
Commission determined that it would review the settlement
officer’s decision relating to Informal Docket No. 1921(I).
On August 2, 2013, Adenariwo filed a complaint with the
U.S. District Court for the District of Columbia seeking
review of the Commission’s decisions in Informal Docket
Nos. 1920(I) and 1921(I). The district court dismissed the
case, finding that it lacked subject-matter jurisdiction and
observing that the settlement officer’s decision regarding
Informal Docket No. 1921(I) was not ripe for review because
it was still under the Commission’s consideration. See
MacBride Nig. Ltd. (Adebisi Adenariwo) v. FMC, Civ. No.
13-1201, 2013 WL 6175823 (D.D.C. Nov. 26, 2013). On
February 20, 2014, the Commission issued an order affirming
the settlement officer’s decision in Informal Docket No.
1921(I). See Adebisi Adenariwo v. BDP Int’l, Zim Integrated
Shipping, Ltd. and Its Agent (LANSAL) et al., Informal Dkt.
No. 1921(I) (F.M.C. Feb. 20, 2014). Adenariwo filed his
petition for review of the Commission’s decisions with this
Court on March 21, 2014.

                      II. ANALYSIS

      Before this Court, Adenariwo contends that the
settlement officer abused her discretion in dismissing his
Container 1 claim on statute of limitation grounds and
                              6
improperly applied mitigation principles when she calculated
Adenariwo’s reparations award for the loss of the equipment
in Container 2. The Commission asserts that this Court lacks
jurisdiction to hear Adenariwo’s challenge to the dismissal of
his Container 1 claim and that if this Court has jurisdiction,
the settlement officer properly dismissed the Container 1
claim because it was barred by the Shipping Act’s three year
statute of limitations. As to the award of damages, the
Commission argues that the settlement officer properly
applied principles of mitigation in reducing Adenariwo’s
award.

A. Jurisdiction

     Our jurisdiction over this matter derives from 28 U.S.C.
§ 2342(3)(B). That statute provides that courts of appeals
have jurisdiction to review “all rules, regulations, or final
orders, of . . . the Federal Maritime Commission issued
pursuant to [listed statutes].” (emphasis added). Under the
Commission’s regulations, a settlement officer’s decision is
considered a final order, “unless, within thirty [] days from
the date of service of the decision, the Commission exercises
its discretionary right to review the decision.” 46 C.F.R.
§ 502.304(g). Petitions for review of final agency action must
be filed within 60 days after the entry of the order under
review. See 28 U.S.C. § 2344.

     Whether an administrative decision is final is determined
not “by the administrative agency’s characterization of its
action, but rather by a realistic assessment of the nature and
effect of the order sought to be reviewed.” Fidelity
Television, Inc. v. FCC, 502 F.2d 443, 448 (D.C. Cir. 1974).
“[T]he relevant considerations in determining finality are
whether the process of administrative decisionmaking has
reached a stage where judicial review will not disrupt the
                               7
orderly process of adjudication and whether rights or
obligations have been determined or legal consequences will
flow from the agency action.” Blue Ridge Envtl. Def. League
v. Nuclear Regulatory Comm’n, 668 F.3d 747, 753 (D.C. Cir.
2012) (quoting Port of Bos. Marine Terminal Ass’n v.
Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970));
see also Bennett v. Spear, 520 U.S. 154, 177-78 (1997)
(addressing the requirement of finality under the
Administrative Procedure Act, 5 U.S.C. § 704, and explaining
that to be “final” an action “must mark the ‘consummation’ of
the agency’s decisionmaking process” and “be one by which
‘rights or obligations had been determined,’ or from which
‘legal consequences will flow’”). An agency order is final for
purposes of 28 U.S.C. § 2342 “if it imposes an obligation,
denies a right, or fixes some legal relationship, usually at the
consummation of an administrative process.” Natural Res.
Def. Council, Inc. v. U.S. Nuclear Regulatory Comm’n, 680
F.2d 810, 815 (D.C. Cir. 1982) (internal quotation marks and
citation omitted).

     The Commission argues that the settlement officer’s
decision to dismiss Informal Docket No. 1920(I) became final
on March 22, 2013—the day the Commission issued its notice
declining to review that decision—and, therefore, this Court
does not have jurisdiction because Adenariwo waited more
than a year to file his petition for review. Although the
dockets were initially consolidated, the Commission contends
that they were later severed. When the Commission declined
review of the settlement officer’s decision to reconsider the
dismissal of Informal Docket No. 1920(I), the settlement
officer’s decision became final and the clock started ticking.

     Adenariwo argues that the settlement officer’s decision to
dismiss Informal Docket No. 1920(I) did not become final
until February 20, 2014—the day the Commission affirmed
                              8
the settlement officer’s decision relating to Informal Docket
No. 1921(I). Because he filed his petition for review on
March 21, 2014, less than 60 days later, this Court has
jurisdiction to review the portions of the petition addressing
Container 1. According to Adenariwo, his Container 1 and
Container 2 claims were “one controversy,” Pet.’s Reply Br.
at 13, and, therefore, the clock did not start ticking on his
Container 1 claim until his Container 2 claim had also been
resolved. Because we agree with the Commission that the
settlement officer’s decision to dismiss Informal Docket No.
1920(I) became final on March 22, 2013, we must dismiss the
portion of the petition relating to Container 1.

     When the settlement officer received two identical
complaints, she probably could have dismissed one of them
thereby limiting Adenariwo to a possible recovery of $50,000.
Instead, the settlement officer treated the two containers as
two separate claims and assigned one container to each
informal docket. By doing so, the settlement officer allowed
Adenariwo to seek a total of $100,000 in reparations. She
also consolidated Informal Docket Nos. 1920(I) and 1921(I)
in order to move the claims forward more efficiently. On
April 18, 2012, in a single decision, the settlement officer
dismissed Informal Docket No. 1920(I) and requested more
information about the claim in Informal Docket No. 1921(I).
This was the last time the two claims were addressed together.

     On March 7, 2013, the settlement officer issued two
separate decisions, one denying Adenariwo’s petition for
reconsideration of her decision to dismiss Informal Docket
No. 1920(I) and one awarding him reparations in Informal
Docket No. 1921(I). In doing so, the settlement officer
effectively severed the two cases. This is evident from the
manner in which the cases proceeded. The Commission
addressed whether it would exercise its discretionary right to
                               9
review the settlement officer’s decisions separately. The
Commission released a notice that it would not review the
decision in Informal Docket No. 1920(I) on March 22, 2013.
It released a separate notice that it would review the decision
in Informal Docket No. 1921(I) on April 10, 2013.

     The Commission’s March 22, 2013 notice not to review
was the “consummation” of the informal adjudication process
for Informal Docket No. 1920(I). See Natural Res. Def.
Council, Inc., 680 F.2d at 815. At that point, the settlement
officer’s decision to dismiss Informal Docket No. 1920(I)
became final pursuant to the regulations governing informal
adjudications, see 46 C.F.R. § 502.304(g), and neither the
Commission nor the settlement officer could take further
action. The Commission’s decision not to review determined,
for administrative purposes, the rights and obligations of
Adenariwo and Zim vis-à-vis the equipment in Container 1.
See Blue Ridge, 668 F.3d at 753. Adenariwo’s only recourse
was to challenge the Commission’s decision in a federal court
of appeals within 60 days of the Commission’s notice
declining to exercise its right to review. Because Adenariwo
did not file his petition for review within that time period, we
lack jurisdiction to review the portion of his petition relating
to Container 1 and Informal Docket No. 1920(I).
Accordingly, the petition is dismissed as to Docket 1920(I).

B. Mitigation of Damages – Informal Docket No. 1921(I)

     It is undisputed that this Court has jurisdiction over the
claims related to the second container and adjudicated in
Informal Docket No. 1921(I). As to that docket number,
petitioner alleges that the settlement officer, as affirmed by
the Commission, erred in reducing the award in this docket
number for failure to mitigate damages. Failure to mitigate
damages is an affirmative defense, on which the party
                             10
opposing the award of damages bears the burden of proof.
See Tri County Indus., Inc. v. District of Columbia, 200 F.3d
836, 840 (D.C. Cir. 2000); Lennon v. U.S. Theatre Corp., 920
F.2d 996, 1000 (D.C. Cir. 1990). Mitigation requires a party
to take reasonable steps after it has been injured to prevent
further damage from occurring. See 1 D. Dobbs, Law of
Remedies § 3.9, at 380-81 (2d ed. 1993). Adenariwo
contends that the Commission “applied a legally untenable
interpretation of mitigation of damages principles” when it
affirmed the settlement officer’s reduction of Adenariwo’s
award for the loss of the equipment in Container 2. Pet.’s Br.
at 18. We agree.

     In her March 7, 2013 decision, the settlement officer
found that it was not only unreasonable but also unlawful for
Zim to condition the release of Container 2 on payment of the
demurrage fees for Container 1. However, in calculating the
damages that Zim owed Adenariwo for the loss of the
equipment in Container 2, the settlement officer concluded
that, once it became clear that Zim was not going to release
Container 2 without receiving payment for the demurrage fees
on both containers, it would have been reasonable for
Adenariwo to mitigate his damages by paying those fees. The
settlement officer found that, as of August 21, 2008, it was
apparent that Container 2 would not be released without
payment of the demurrage fees. At that time, the demurrage
fees totaled $13,192.94. Accordingly, the settlement officer
awarded Adenariwo reparations in the amount of $18,308.94
plus interest, consisting of the $13,192.94 he could have paid
to secure release of Container 2, and $5,116.00 for a refund
on the contract because Zim failed to secure delivery of the
goods.

    The settlement officer’s decision leads to absurd and
unjust results. Under the settlement officer’s reasoning, a
                               11
wrongdoer, such as Zim, can set unlawful conditions for the
release of an injured party’s property and have the damages it
owes the injured party reduced if the injured party cannot or
does not meet those unlawful conditions. The settlement
officer and the Commission would have this Court punish
Adenariwo for not doing the very thing the law says he should
not have to do. The Commission conceded at oral argument
that it had not identified any case in which a court endorsed
such a view of mitigation. See Oral Arg. Recording 12:12–
12:49.

     Mitigation does not allow a wrongdoer to shift the cost of
its malfeasance to the injured party. See Shea-S&M Ball v.
Massman-Kiewit-Early, 606 F.2d 1245, 1249-50 (D.C. Cir.
1979) (plaintiff was not required to mitigate damages by
constructing a dike when the defendant had breached its
contractual duties by failing to control water overflow and
could just have easily built a dike itself); see also Welke v.
City of Davenport, 309 N.W.2d 450, 453 (Iowa 1981)
(rejecting contention that a plaintiff’s damages could be
reduced when a tortfeasor illegally seized chattels and
plaintiff did not try to reclaim the chattels by paying a fee and
storage charge). Instead, classic examples of mitigation—
e.g., procuring a substitute, repairing harm that would
otherwise cause consequential losses—involve the injured
party taking beneficial steps to prevent further damages. See
1 D. Dobbs, Law of Remedies § 3.9, at 381 (observing that
mitigation generally applies to consequential damages and
citing common forms of mitigating damages); Shea-S&M
Ball, 606 F.2d at 1249 (“[T]he law does not permit an injured
party to stand idly by, accumulating damages, when certain
obvious, reasonable steps, if taken, would [] greatly reduce[]
the damages . . . .”).
                              12
     Moreover, we have held that mitigation of damages is
inapplicable when the defendant has acted unlawfully and has
the primary responsibility and an equal opportunity to
perform an act that it knows will avoid damages. See Shea-
S&M Ball, 606 F.2d at 1249, supra; see also 1 D. Dobbs, Law
of Remedies § 3.9, at 384 (“If, after he has committed a tort or
breached a contract, the defendant had an equal and
continuing opportunity to minimize damages he has caused,
and at a cost no greater than would be required of the
plaintiff, the grounds for reducing [the defendant’s] liability
seem doubtful.”). Here, Zim had an equal, if not greater,
opportunity to prevent the equipment in Container 2 from
being auctioned off and it had the primary responsibility of
doing so. It is also fair to assume that, as a vessel-operating
common carrier, Zim knew the potential consequences of its
refusal to release Container 2.

     We conclude that mitigation is inapplicable to the facts of
this case and therefore Adenariwo should be awarded the full
amount supported by the evidence, without mitigation. We
therefore remand the petition for the entry of an award by the
Commission in favor of petitioner in the full amount of his
unmitigated damages, together with such interest and costs as
may be legally appropriate.

                     III. CONCLUSION

     We dismiss the portions of the petition relating to
Container 1 (Informal Docket No. 1920(I)) for lack of
jurisdiction. We vacate the Commission’s February 20, 2014
decision relating to Container 2 (Informal Docket No.
1921(I)) insofar as the award ordered mitigation of damages.
We remand the Commission’s order for further proceedings
consistent with this opinion.
                                                 So ordered.
