Great Lakes Pilots & the Administrative-Remand Rule

In American Great Lakes Ports Association v. Schultz, the D.C. Circuit held that an order remanding a dispute to an agency was final and appealable. Administrative remands are normally not final. But sometimes they are. American Great Lakes illustrates one exception to the general rule that applies when when, despite the remand, the dispute is effectively over in the district court and the agency. The dispute in American Great Lakes was over, and no further proceedings before the agency were ordered or likely. The D.C. Circuit accordingly held that it had appellate jurisdiction.

The Litigation Over Great Lakes Pilot Rates

American Great Lakes involved a challenge to the rates for pilots registered to navigate on the Great Lakes. A federal law requires that ships engaged in foreign trade on the Great Lakes use a registered pilot. The Coast Guard sets rates for these pilots annually. After the 2016 rates were issued, a group of shippers challenged them in the District Court for the District of Columbia. The shippers argued that the Coast Guard used flawed methods in setting the rates. Although the district court rejected most of the shippers’ challenges, it held that the administrative record did not support two aspects of the rate-setting method.

The district court did not vacate the 2016 rates. The Coast Guard’s errors were substantial. But vacating those rates, the district court concluded, was not prudent. It was unclear whether the rates paid could be refunded. And if they could, those refunds would be too disruptive. The district court accordingly remanded the dispute to the Coast Guard to “evaluate and justify an appropriate adjustment to benchmark compensation for its ratemaking methodology going forward.”

The shippers then appealed to the D.C. Circuit.

The Administrative-Remand Rule

As a general rule, district court decisions remanding disputes to an agency are not final or appealable. Remands normally mean more remains to be done in the agency. An immediate appeal from a remand would likely require staying these administrative proceedings. An immediate appeal could also lead to piecemeal review. The court of appeals might hear a case twice—once after the administrative remand and again after any further administrative proceedings. Delaying review, in contrast, would consolidate all issues (from both the earlier agency action and the later agency action) into one appeal. So parties generally have to wait until after the proceedings on remand before taking an appeal.

But that’s not always the case, and exceptions to the general rule exist. One exception applies when the lack of an immediate appeal might leave a party without any chance for appellate review. This happens most frequently when the government tries to appeal. For example, a district court might hold that an agency applied the wrong legal standard and remand with instructions for that agency to apply a different legal standard. If, on remand, the agency applies that new legal standard and finds for the party who was challenging the agency’s actions, the government generally will not be able to appeal; agencies normally cannot appeal their own decisions. So the remand risks making the district court’s holding on the proper legal standard unreviewable by a court of appeals. Faced with this sort of situation, the courts of appeals have concluded that the government can immediately appeal the district court’s order.

The Administrative Remand in American Great Lakes

American Great Lakes illustrates another exception to the general rule against appealing administrative remands. Unlike the government, private parties generally are not precluded from appealing an unfavorable administrative decision on remand. But courts have allowed private parties to immediately appeal when the dispute is effectively over. And the dispute in American Great Lakes was effectively over. The remand did “not instruct the Coast Guard to reopen the 2016 rate review and conduct further proceedings.” So the remand effectively ended the litigation, as there was nothing left to do back before the agency. With the dispute effectively over in both the agency and the district court, the D.C. Circuit held that it had jurisdiction over the appeal.

On the merits, the D.C. Circuit affirmed the district court’s decision to remand without vacating the 2016 rates.

For more on the administrative-remand rule, see pages 386–93 of my article Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction.

American Great Lakes Ports Association v. Schultz, 2020 WL 3240903 (D.C. Cir. June 16, 2020), available at the D.C. Circuit and Westlaw.