                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-1610


ANGELEX LTD., as owner of the M/V Antonis G. Pappadakis,
and the M/V Antonis G. Pappadakis in rem,

                  Petitioner - Appellee,

           v.

UNITED STATES OF AMERICA; UNITED STATES COAST GUARD; UNITED
STATES CUSTOMS AND BORDER PROTECTION AGENCY,

                  Respondents – Appellants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.   Robert G. Doumar, Senior
District Judge. (2:13-cv-00237-RGD)


Argued:   June 25, 2013                       Decided:   July 22, 2013


Before KING, FLOYD, and THACKER, Circuit Judges.


Reversed and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge King and Judge Floyd joined.


ARGUED:    Douglas Neal Letter, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellants.      George Michael
Chalos, CHALOS & CO, P.C., Oyster Bay, New York, for Appellee.
ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria,
Virginia, Stuart F. Delery, Acting Assistant Attorney General,
Matthew M. Collette, Anne Murphy, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellants.
THACKER, Circuit Judge:

                The United States of America, the United States Coast

Guard,      and      the   United       States       Customs    and    Border    Protection

Agency (collectively, “Respondents” or the “government”) appeal

the district court’s order, which, upon an emergency petition

filed in the Eastern District of Virginia, (1) altered the terms

of    a   bond       the   Coast    Guard      had    fixed     for    the    release   of   a

detained ship that was under investigation; and (2) restricted

the types of penalties the government could seek for the ship’s

potential         violations       of     certain       ocean    pollution       prevention

statutes.         As explained below, this matter was not subject to

review in the district court because the Coast Guard’s actions

were committed to agency discretion by law.                             As a result, the

district court lacked jurisdiction to consider the petition and

we, therefore, reverse and remand for dismissal under Federal

Rule of Civil Procedure 12(b)(1).

                                                 I.

                                                 A.

                We    begin   with      the     international         and    domestic   legal

landscape         underlying       this       matter.      The    United      States    is   a

signatory to MARPOL, which is a multi-national treaty aimed at

“achiev[ing] the complete elimination of international pollution

of the marine environment by oil and other harmful substances

and       the     minimization           of     accidental        discharge       of    such

                                                 2
substances[.]” 1       Protocol of 1978 Relating to the International

Convention for the Prevention of Pollution from Ships, Feb. 17,

1978, 1340 U.N.T.S. 61, 128.                 MARPOL requires member States to

prohibit violations of the treaty through domestic laws, and to

provide penalties “adequate in severity to discourage violations

of [MARPOL].”       Id. at 186.

            In     fulfilling     its    obligations          pursuant   to     MARPOL,

Congress     enacted       the   Act    to       Prevent    Pollution    from    Ships

(“APPS”).     See 33 U.S.C. §§ 1901-15.                    According to APPS, “the

Secretary    shall     administer       and      enforce”     MARPOL,    as    well   as

statutes     and    regulations        designed       to     preserve    the    marine

environment.       Id. § 1903(a).        The term “Secretary” is defined as

“the Secretary of the department in which the Coast Guard is

operating.”        Id. § 1901(a)(11).            At all times relevant to this

appeal,     the    Coast     Guard     operated       under    the   Department       of

Homeland Security (“DHS”).

            The regulations attendant to APPS require, in relevant

part, that certain oil-carrying ships must “maintain” an Oil

Record Book (“ORB”), and




     1
       The term “MARPOL” refers to two international conventions:
the 1973 International Convention for the Prevention of
Pollution from Ships, and the Protocol of 1978 Relating to the
International Convention for the Prevention of Pollution from
Ships.



                                             3
       [e]ntries shall be made in the [ORB] . . . whenever
       any of the following machinery space operations take
       place on any ship to which this section applies -- (1)
       Ballasting or cleaning of fuel oil tanks; (2)
       Discharge of ballast containing an oily mixture or
       cleaning water from fuel oil tanks; (3) Disposal of
       oil residue; and (4) Discharge overboard or disposal
       otherwise of bilge water that has accumulated in
       machinery spaces.

33 C.F.R. § 151.25(a), (d); see also United States v. Ionia

Mgmt. S.A., 555 F.3d 303, 309 (2d Cir. 2009) (holding that “the

APPS’s    requirement   that   subject       ships      ‘maintain’    an    ORB,   33

C.F.R. § 151.25, mandates that these ships ensure that their

ORBs are accurate (or at least not knowingly inaccurate) upon

entering the ports or navigable waters of the United States”);

United States v. Jho, 534 F.3d 398, 403 (5th Cir. 2008) (“[W]e

read the requirement that an oil record book be ‘maintained’ as

imposing a duty upon a foreign-flagged vessel to ensure that its

oil    record   book    is   accurate       (or    at    least   not       knowingly

inaccurate) upon entering the ports of navigable waters of the

United States.”).       A person who knowingly violates APPS or its

attendant regulations commits a Class D felony.                   See 33 U.S.C.

§ 1908(a).

                                    B.

            There are two Petitioners in this appeal:                  the Antonis

G.    Pappadakis   (“Pappadakis”   or       “the   vessel”),     an    ocean-going

bulk cargo carrier, which was built in 1995 and registered in

Malta; and Angelex Ltd. (“Angelex”), a company that purchased

                                        4
the vessel on March 9, 2007.                    The vessel is Angelex’s sole

income-earning asset.             Angelex contracted with a third party,

Kassian Maritime Navigation Agency, Ltd. (“Kassian”), a Greek

company,      to    serve    as   the    vessel’s      operator.      Kassian     also

operates several other cargo ships and is not a petitioner in

this appeal. 2

              The events giving rise to this action began on April

14, 2013.          On that day, the Pappadakis arrived at the Norfolk

Southern Terminal in Norfolk, Virginia, and loaded a cargo of

coal for delivery to a customer in Brazil.                        The next day, on

April 15, 2013, Coast Guard inspectors conducted a routine Port

State Control inspection of the Pappadakis.                       While Coast Guard

personnel were aboard the vessel, a crewmember passed a note to

one of the inspectors, which stated that the vessel’s oily water

separator      had    been    bypassed     and   oily     bilge    water    had   been

discharged         overboard.      The     letter      also   alleged      that   this

discharge was not reported in the ORB.                  Upon further inspection,

the   Coast    Guard     discovered      that    the    Pappadakis’s       oily   water



      2
       Kassian was previously prosecuted in                   2007 for violating
APPS in materially identical circumstances                    to those presented
here.   Kassian pleaded guilty, paid a fine                   of $1 million, and
received a sentence of 30 months probation.                     See United States
v. Kassian Maritime Navigation Agency, No.                     3:07-cr-0048 (M.D.
Fla. Aug. 17, 2007), ECF No. 133.




                                           5
separator was inoperable, the vessel had likely been discharging

bilge water overboard, and the ORB was incomplete or falsified,

in contravention of MARPOL and APPS.

                 The    Coast    Guard    referred      its   findings     to   the

Department       of    Justice   for     possible    prosecution.        It     also

informed     Angelex     that    the     Pappadakis’s    clearance    to      depart

Norfolk    had    been    withheld,      and   negotiations    for   a   security

agreement between the Coast Guard and counsel for Angelex began. 3

             After a few days, the negotiations stalled with the

Coast Guard requiring the posting of a $2.5 million bond, a

number     of    non-monetary     obligations       intended    to   ensure      the

availability and cooperation of the crewmembers and officials,

and consent to the United States’s continued jurisdiction over

the matter.       Unable to further negotiate with the Coast Guard,

and claiming to be losing money by the day, Angelex and the

     3
         APPS provides, as codified as 33 U.S.C. § 1908(e),

     If any ship subject to the MARPOL Protocol . . . or
     this chapter, its owner, operator, or person in charge
     is liable for a fine or civil penalty under this
     section, or if reasonable cause exists to believe that
     the ship, its owner, operator, or person in charge may
     be subject to a fine or civil penalty under this
     section, the Secretary of the Treasury, upon the
     request of the Secretary [of the DHS], shall refuse or
     revoke [departure] clearance . . . . Clearance may be
     granted upon the filing of a bond or other surety
     satisfactory to the Secretary.

33 U.S.C. § 1908(e) (emphasis supplied).



                                           6
Pappadakis (in rem) then filed an emergency petition on April

25, 2013, in the Eastern District of Virginia, seeking immediate

release of the Pappadakis or imposition of an appropriate bond

(the “Petition”). 4

             Specifically, the Petition asked the court “to fix an

amount of security for release of the [Pappadakis]” because (1)

the     Coast   Guard       was   not     authorized      and     was     wrongfully

withholding clearance; (2) the vessel was improperly detained;

(3) the amount of surety bond being demanded was “unjustified as

a matter of fact, law, equity and good conscience and beyond the

Coast     Guard’s     authority”;       (4)    such     actions    were     “causing

serious, irreparable harm” to Angelex and the vessel; and (5)

the   government      was    improperly       making    Angelex   “act[]     as   the

government’s        proxy    in   detaining      [the     crewmembers]      for   an

indefinite      and    unlimited        amount    of    time,     without     lawful

authority and in violation of their rights to due process of

law.”     J.A. 7.




      4
       The Petition, entitled “Emergency Petition and Motion for
Release of the Motor Vessel ‘Antonis G. Pappadakis,’ or
alternatively, to Fix an Appropriate Bond Amount for the
Immediate Release of the Vessel and to Protect the Rights,
Liberties and Freedoms of the Vessel’s Crew,” is found at J.A.
6-33.   (Citations to the “J.A.” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)



                                          7
                                               C.

                 The district court held a hearing on the Petition on

May 6, 2013.             It recessed court and encouraged the parties to

come up with an agreeable bond determination.                        The parties met

for several hours and ultimately reached an agreement of $1.5

million bond and other agreed conditions, subject to approval

from       the        Coast    Guard        Headquarters     in    Washington,        D.C.

(“Headquarters”).              But when the court reconvened, the government

attorney         advised      that    the     settlement     had   been    rejected    by

Headquarters.               According to the district court, that attorney

also advised that pursuant to guidance from Headquarters, the

Coast Guard “firmly refuses to accept less than the $2.5 million

bond it had previously offered.”                    J.A. 629. 5

                 On May 8, 2013, the district court filed a memorandum

opinion,          explaining          that     it      possessed     subject      matter

jurisdiction based on the Administrative Procedure Act, 5 U.S.C.

§§ 551, et seq. (the “APA”), and federal question jurisdiction,

28   U.S.C.       §    1331;    or,    in    the    alternative,   in     rem   admiralty

jurisdiction, 28 U.S.C. § 1333.                       It then determined that the

government            had     acted    unconstitutionally          and     outside    its


       5
       At oral argument, there was dispute amongst the parties as
to whether or not negotiations continued beyond the Coast
Guard’s take it or leave it offer of a $2.5 million bond.
Regardless, this debate does not alter our analysis.



                                                8
statutory authority by demanding excessive bond for clearance

and by insisting that any security agreement include certain

non-monetary conditions.   See Angelex Ltd. v. United States,

2:13-cv-00237 (E.D. Va. May 8, 2013), ECF No. 21 (J.A. 624-39).

In a contemporaneous four-page order, the district court set

forth new bond conditions.     Specifically, the order directed

Angelex to post a surety bond in the sum of $1.5 million.     The

order specified that the government could initiate either civil

or criminal proceedings, but not both, and established other

bond conditions, including the following:

     [T]he owner will maintain in the Eastern District of
     Virginia, at the owner’s cost and expense, [six named
     officers and] crew members of said vessel for no
     greater than one month, and said crew members shall be
     functionally detained under material witness status so
     that their deposition may be taken. . . .

     [T]he owner will return, at its cost and expense,
     Gerasimos Patsalias, Master of said vessel, for either
     the civil or criminal proceedings (only one or the
     other) brought against Petitioners under [APPS]. . . .

     [T]he owner agrees to provide Lt. Elizabeth Oliveira,
     of the United States Coast Guard, with the name,
     address and telephone number of the hotel or other
     place where each of said ship’s officers and crew
     members may be located when housed pursuant to the
     conditions of said bond in the Eastern District of
     Virginia.

     Upon the posting of . . . the said bond all parties to
     this action shall take all actions necessary to
     immediately release said vessel from arrest and allow
     it to proceed from this port and issue any and all
     permits that may be necessary to allow it to proceed
     out of this port in its trade.


                                9
Id., ECF No. 20 at 2-3 (J.A. 621-22).

               On   May   9,   2013,      the    government   requested   that    the

district court temporarily stay the order, simultaneously filing

a notice of appeal and requesting a stay from this court.                         The

district court denied the stay motion on May 10, 2013.                           That

same day, this court granted a stay that was extended, on May

16, 2013, to encompass the pendency of this appeal.                   Thereafter,

we implemented an expedited briefing schedule and heard argument

at the Greenbrier County Courthouse in Lewisburg, West Virginia,

on June 25, 2013. 6

               Because the district court’s order enjoined the United

States    to    comply    with      the   conditions    set   forth   therein,    we

possess jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).                           In

addition, insofar as the order constitutes the final decision of

the   district      court,     we    possess      jurisdiction   pursuant   to    28

U.S.C. § 1291.




      6
       On May 22, 2013, the grand jury in the Eastern District of
Virginia indicted Angelex, Kassian, and the vessel’s chief
engineer, Lambros Katsipis, on multiple charges, including
conspiracy to illegally discharge oily water into the sea,
presentation of a falsified ORB, and obstruction of justice.
See United States v. Kassian Maritime Navigation Agency, Inc.,
No. 2:13-cr-00070 (E.D. Va. May 22, 2013), ECF No. 12.



                                            10
                                            II.

               In this appeal, the government challenges the subject

matter   jurisdiction         of   the     district   court,      an   issue    that    we

review de novo.            See Dixon v. Coburg Dairy, Inc., 369 F.3d 811,

815 (4th Cir. 2003) (en banc).

                                           III.

               The   district      court    asserted       jurisdiction     over   this

matter    under      the    APA    and   pursuant     to    the   court’s      admiralty

jurisdiction.         For the following reasons, neither provides the

court with the power to review the Coast Guard’s actions in this

case.

                                            A.

                                         The APA

                                            1.

               “Reviewability is a threshold jurisdictional question

that must be determined before the merits of the case may be

reached.”       Sierra Club v. Larson, 882 F.2d 128, 130 (4th Cir.

1989). The APA “is not a jurisdiction-conferring statute.”                             Lee

v. U.S. Citizenship and Immigration Servs., 592 F.3d 612, 619

(4th    Cir.    2010)      (internal     quotation     marks      omitted).       “[T]he

jurisdictional source for an action under the APA is the federal

question statute,” and the APA’s judicial provisions provide “a

limited cause of action for parties adversely affected by agency

action.”       Id. (citations and internal quotation marks omitted).

                                            11
Because “reviewability is a threshold jurisdictional question,”

however, we must examine reviewability through the lens of the

APA to determine whether the district court properly exercised

its jurisdiction.            Larson, 882 F.2d at 130.

                  The APA requires a reviewing court to “hold unlawful

and set aside agency action, findings, and conclusions found to

be   .       .   .   arbitrary,    capricious,       an   abuse    of    discretion,     or

otherwise not in accordance with law[.]”                     5 U.S.C. § 706(2)(A).

The APA further provides, “[a]gency action made reviewable by

statute and final agency action for which there is no other

adequate remedy in a court are subject to judicial review.”                             Id.

§ 704. 7         Of significance here, the APA provides two exceptions to

judicial         review     of   agency   actions:        when     “statutes     preclude

judicial review,” or when “agency action is committed to agency

discretion by law.”                Id. § 701(a)(2).          The government argues

that both exceptions apply here, and in any event, there is no

“final agency action” of the Coast Guard.

                  Because    the   action     that    occurred      in    this   case    is

explicitly           committed     to   the   discretion      of    the    Coast   Guard




         7
       “Agency action” is defined as “the whole or part of an
agency rule, order, license, sanction, relief, or the equivalent
or denial thereof, or failure to act[.]”    5 U.S.C. § 551(13);
see also id. § 701(b)(2).



                                              12
pursuant to APPS, we conclude that this matter was unreviewable,

and thus, the district court lacked subject matter jurisdiction.

                                                   a.

            The idea that courts cannot review actions committed

to agency discretion by law was at the forefront of two seminal

Supreme    Court      cases:        Citizens            to    Preserve      Overton    Park    v.

Volpe, 401 U.S. 402 (1971), and Heckler v. Chaney, 470 U.S. 821

(1985).      Volpe explained that § 701(a)(2) “is a very narrow

exception”      and     “applicable               in     those     rare     instances     where

statutes are drawn in such broad terms that in a given case

there is no law to apply.”                        Volpe, 401 U.S. at 410.               Heckler

further elucidated, however, that “even where Congress has not

affirmatively precluded review, review is not to be had if the

statute    is   drawn       so    that       a     court      would   have    no   meaningful

standard     against        which       to        judge      the   agency’s     exercise      of

discretion” and “no judicially manageable standards . . . for

judging     how       and        when        an        agency      should     exercise        its

discretion[.]”        470 U.S. at 830.

            Our resolution of this matter is further informed by

Speed Mining v. Federal Mine Safety & Health Review Commission,

528 F.3d 310 (4th Cir. 2008).                          Speed Mining, an owner-operator

of a coal mine in West Virginia, petitioned for review of a

decision     from     the        Federal          Mine       Safety   and     Health     Review

Commission, which upheld citations for a crane hoist accident

                                                   13
that were issued by the Secretary of Labor.                   Speed Mining argued

that,     because       the   accident        was      caused     by       independent

contractors,      the    Secretary’s     decision       to    cite     Speed      Mining

itself was an abuse of discretion.             See id. at 311.

            This court held,

     It is settled law in this and other circuits that the
     Secretary possesses the discretionary authority to
     cite owner-operators . . . for safety violations
     committed by independent contractors. Moreover, there
     are no manageable standards in the Mine [Safety and
     Health] Act that enable us to review the Secretary’s
     discretionary exercise of her enforcement authority.

Speed Mining, 528 F.3d at 311.                As a result, “the Secretary’s

discretionary      decision   to   cite       [Speed    Mining]      for    the    crane

hoist accident is ‘committed to agency discretion by law,’ and

therefore   unreviewable.”         Id.    at    317.         Additionally,        “[t]he

discretionary decision as to which operator to cite for a Mine

Act violation rests on a ‘complicated balancing of a number of

factors     which       are   peculiarly            within’      the       Secretary’s

expertise[.]”       Id. at 318.

                                         b.

            The    circumstances    in    this      case     substantially        mirror

those described by the Supreme Court in Heckler and our court in

Speed Mining.       By its Petition, Angelex asserts that the Coast

Guard   acted     “arbitrarily,    capriciously,           and   unreasonably”       in

detaining the Pappadakis, setting a bond which Angelex cannot

post, and demanding a security agreement with terms that are not

                                         14
authorized by the operative statute, 33 U.S.C. § 1908(e).                         J.A.

7.     But § 1908(e) grants the Coast Guard broad discretion to

deny bond altogether, and it can dictate the terms of any bond

that it may accept.               See Giuseppe Bottiglieri Shipping Co. v.

United       States,   843   F.    Supp.    2d   1241,    1248   (S.D.   Ala.    2012)

(“Congress did not require the Coast Guard to accept a bond or

other surety in any case,” or “grant an absolute right to a

vessel owner to obtain departure clearance[.]”).

               Furthermore,        the    language    of    § 1908(e)     does     not

provide any “judicially manageable standards” by which to review

the Coast Guard’s actions.               Heckler, 470 U.S. at 830.        There are

no specific guidelines as to when clearance should or should not

be granted in APPS, and Congress did not “outline (even in the

broadest brushstrokes) the parameters for what form or amount a

bond or other surety should take.”                 Giuseppe, 843 F. Supp. 2d at

1248.     The reasonableness of the Coast Guard’s decision cannot

be determined pro forma in a vacuum, but only in the context of

the standards intended by Congress.                      As a result, this is a

situation where the statute at issue is “‘drawn in such broad

terms that . . . there is no law to apply.’”                     Heckler, 470 U.S.

at 830 (quoting Volpe, 401 U.S. at 410); see also Larson, 882

F.2d    at    132-33   (holding      that   federal      court   could   not    review

Federal Highway Administration’s (FHWA) decision not to enforce

certain       provisions     of    the   Highway     Beautification      Act    (HBA),

                                            15
explaining, “[t]he relevant question here is whether the HBA

provides     standards         for     ascertaining          when       the      FHWA     should

recommend that formal enforcement proceedings be commenced or

when   the    Secretary        is     required        to    make    a     determination         of

compliance     or    non-compliance            or     to    institute       an    enforcement

action.      As to these points, the statute is silent.                              Therefore,

there is no law to apply and appellant has failed to overcome

the presumption of unreviewability.”).

                                               2.

             Despite         these    bars     to     review,       the    district         court

nonetheless       decided      it     possessed        jurisdiction         to    review       the

Coast Guard’s bond determination because, even when Congress has

committed a specific decision to an agency’s discretion by law,

“the federal courts retain jurisdiction to review discretionary

agency    actions       for    abuse      of   discretion.”             J.A.     633      (citing

Elecs. of N.C., Inc. v. Se. Power Admin., 774 F.2d 1262, 1267

(4th Cir. 1985); Littell v. Morton, 445 F.2d 1207, 1211 (4th

Cir. 1971)).        But, as the government points out, to adopt this

argument     would      be    to     “eliminate       Section       701(a)(2)         from     the

statute,     by   providing          ‘abuse      of   discretion’          review       for    all

discretionary agency decisions, regardless of whether Congress

has    committed        them       exclusively         to     the       agency       or     not.”

Appellant’s       Br.    40.         In    fact,      Heckler       rejected         this     very

argument,     explaining        that      even      though    the    APA      sets     forth    an

                                               16
“abuse of discretion” review of agency action in 5 U.S.C. § 706,

the   §    701(a)(2)      exception      for       actions    committed      to   agency

discretion      still     applies   to    “a      separate    class    of    cases,”   as

here, in which a statute “is drawn so that a court would have no

meaningful standard against which to judge the agency’s exercise

of discretion.”         Heckler, 470 U.S. at 830.

               Angelex     asserts,      “the      very     purpose    for    Angelex’s

pursuit of judicial intervention -- and a significant basis for

the District Court’s decision -- was the Coast Guard’s actions

beyond its statutory authority and its violation of Angelex’s

constitutional due process rights.”                  Appellees’ Br. 33.           Angelex

contends that because it raises the “indisputable existence of

specific    statutory       construction          issues,    various    violations     of

its due process rights, and other constitutional concerns as a

result     of    the     Coast   Guard’s       overreaching      of    its    statutory

authority,” there are clearly “manageable standard[s]” to apply

here.     Id. at 36.

               We are cognizant of this court’s declaration,

      [E]ven where action is committed to absolute agency
      discretion by law, courts have assumed the power to
      review allegations that an agency exceeded its legal
      authority, acted unconstitutionally, or failed to
      follow its own regulations, but they may not review
      agency action where the challenge is only to the
      decision itself.

Elecs.    of    N.C.,     774    F.2d   at    1267    (internal       quotation    marks

omitted).              Nonetheless,          we     disagree      with       Appellees’

                                             17
characterization of the Petition as an attack on the statutory

authority       or    constitutionality          of    the     Coast      Guard’s      actions.

First,       Appellees    cannot      with   a    straight         face    argue     that    the

Coast Guard has acted outside the bounds of § 1908(e).                                  Indeed,

those bounds are quite limitless.                     The Coast Guard may demand a

low    bond,     a    high    bond,     or   may       refuse       to     grant     clearance

altogether.          See 33 U.S.C. § 1908(e) (“Clearance may be granted

upon the filing of a bond or other surety satisfactory to the

Secretary.” (emphases added)); see also 46 U.S.C. § 60105(b)

(“[A] vessel that is not a vessel of the United States shall

obtain clearance from the Secretary before proceeding from a

port     of    place     in    the     United         States.”          (emphasis      added)).

Further, once the Coast Guard makes its clearance determination,

the    “Secretary        of   the     Treasury,         upon       the     request      of   the

Secretary       [of    the    DHS],    shall      refuse       or       revoke     [departure]

clearance[.]”         Id.     In other words, if the Coast Guard requests

that clearance be refused or revoked, it is mandatory that such

action occur.          In this case, the Coast Guard requested that the

Customs and Border Protection (“CBP”) withhold the Pappadakis’s

departure clearance, and the “Customs hold was approved by CBP

on April 19, 2013.”              J.A. 68.             This action is specifically

permitted in the text of § 1908(e).

               Likewise,      Angelex’s      attempt         at     turning      this    matter

into     a    constitutional         challenge         does       not    make    the     matter

                                             18
reviewable and thus, vest the district court with jurisdiction.

Specifically, Angelex asserts that the government violated its

due    process     rights    by    indefinitely       detaining    the   Pappadakis.

This     attempt       at   bypassing     the   reviewability        exception   in

§ 701(a)(2) falls flat.             As Appellants observed, Angelex’s case

is “nothing more than a direct review of the specific conditions

sought    by     the    Coast     Guard   in    order     to   allow     departure,”

Appellant’s Rep. Br. 8, and we “may not review agency action

where the challenge is only to the decision itself,”                      Elecs. of

N.C., 774 F.2d at 1267.               Furthermore, we reiterate that the

Coast Guard’s actions are specifically endorsed by the text of

§ 1908(e).       The release of the vessel upon the filing of a bond

or other surety is permissive, not mandatory, and is contingent

only upon conditions “satisfactory to the Secretary.”                     33 U.S.C.

§ 1908(e).       In short, the Coast Guard’s stringent conformity to

§ 1908(e) simply does not give rise to a reviewable claim.

                                          3.

            Finally,        APPS     contains     a     built-in     safeguard   to

governmental abuses, which further convinces us that Angelex’s

Petition is out of place and time.                In addition to the criminal

and civil penalties that APPS authorizes the United States to

seek, APPS provides for compensation for loss or damage as a

result of unreasonable detention by the Coast Guard.                         Section

1904(h) provides, “A ship unreasonably detained or delayed by

                                          19
the   Secretary        acting    under       the    authority         of    this   chapter      is

entitled     to    compensation          for       any    loss       or     damage       suffered

thereby.”         33   U.S.C.        § 1904(h).          This    provision         is,    as   the

government     asserts,         an    “after-the-fact           damages      remedy       against

the   United       States       for     unreasonable            detention          or     delay.”

Appellant’s Br. 37.              This safeguard gives Appellees a remedy,

distinct from the unauthorized injunctive relief they now seek.

            For        these     reasons,          the    Coast        Guard’s          decisions

regarding    bond       conditions       with       regard      to    the    Pappadakis        are

unreviewable, and the district court thereby did not possess

subject matter jurisdiction under the APA.

                                               B.

                                Admiralty Jurisdiction

            Judicial review of the Coast Guard’s decision on bond

and withholding of clearance is likewise unavailable to Angelex

under the district court’s in rem admiralty jurisdiction.                                      The

district court determined that the withholding of the Pappadakis

for an indefinite period of time, subject to unattainable bond

conditions “is tantamount to an arrest of the ship.”                                    J.A. 634.

Likening    such       an   arrest      to    a     “proper     maritime       arrest,”        the

district court asserted that the arrest of the vessel in rem

falls within its admiralty jurisdiction.                        Id.

            Pursuant to 28 U.S.C. § 1333(1), district courts have

jurisdiction over “[a]ny civil case of admiralty or maritime

                                               20
jurisdiction[.]”       Pursuant     to    the   Supplemental        Admiralty   and

Maritime Claims Rule E, such admiralty jurisdiction “applies to

actions   in   personam    with    process      of    maritime    attachment    and

garnishment,    actions     in    rem,    and    petitory,       possessory,    and

partition actions . . . .”               Fed. R. Civ. P. Adm. Rule E(1)

(emphasis added).      An “in rem suit against a vessel is . . .

distinctively an admiralty proceeding, and is hence within the

exclusive province of the federal courts.”                 Am. Dredging Co. v.

Miller, 510 U.S. 443, 446-47 (1994).

           Appellees      unreasonably        stretch    the   law   to   classify

this matter as an in rem action.              The Coast Guard’s withholding

of the Pappadakis’s departure clearance is not tantamount to an

attachment pursuant to a civil action, such as a maritime lien. 8

See California v. Deep Sea Research, Inc., 523 U.S. 491, 501

(1998)    (observing      that     maritime          jurisdiction     encompasses

“maritime causes of action begun and carried on as proceedings

in rem, that is, where a vessel or thing is itself treated as

the offender and made the defendant by name or description in

order to enforce a lien” (internal quotation marks omitted)).

The Coast Guard is properly withholding the departure clearance

     8
       “A maritime lien is a special property right in a ship
given to a creditor by law as security for a debt or claim,” and
it attaches “the moment the debt arises.” Dresdner Bank AG v.
M/V Olympia Voyager, 465 F.3d 1267, 1272 (11th Cir. 2006)
(internal quotation marks and alterations omitted).



                                         21
pursuant to its authority under § 1908(e), and not pursuant to

any rule governing admiralty actions in rem.

            Appellees also stretch the facts.         They first cite to

the Agreement, claiming that the demands therein “insist[] upon

. . . hav[ing] the surety bond stand in place of the Vessel for

the     potential   criminal   fine    or   civil     penalty   imposed.”

Appellees’ Br. 43.       There is simply no support for this; in

fact, the Agreement itself states, “[i]n consideration of the

Surety Bonds, the United States agrees not to cause the arrest

of the Vessel, nor the arrest, seizure or attachment or any

other vessel owned, operated, managed or chartered by the Owner

or Operator for the Alleged Violations[.]”          J.A. 185.

            Appellees then liken the Coast Guard’s withholding of

clearance to a “functional arrest” that was done in order to

“provide the government with the ability to obtain financial

security for a potential fine or penalty.”             Appellees’ Br. 43

n.29.     In so arguing, Appellees once again twist the facts such

that what is actually discretionary action on the part of the

Coast Guard under APPS is now considered an offense to the ship

itself.    Further, the Coast Guard’s own regulations provide,

      statutes authorizing the Coast Guard to request denial
      or revocation of CBP clearance are not dependent on,
      limited in scope by, or equivalent to, the laws and
      procedures applicable to the assertion of an in rem
      claim against the vessel.    Therefore, applying rules
      and practices developed with regard to asserting in


                                  22
     rem claims against vessels under              admiralty   law   is
     inappropriate and not required.

69 Fed. Reg. 40400-01, 40401 (Jul. 2, 2004).              In short, try as

they might to make it so, Appellees’ argument on this point

simply does not fit either the law or the facts.

                                    IV.

            Pursuant to the foregoing, we reverse and remand for

dismissal    of    the   Petition    for    lack     of    subject    matter

jurisdiction,     pursuant   to   Federal   Rule     of   Civil   Procedure

12(b)(1).

                                                    REVERSED AND REMANDED




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