Appeal from the United States District Court for the Central
District of California James M. Ideman, District Judge, Presiding
Argued and Submitted October 6, 1994--Pasadena, California
Filed October 18, 1995
Amended March 12, 1996
Before: Dorothy W. Nelson, William A. Norris,
and Danny J. Boggs, , Circuit Judges.
Opinion by Judge Boggs
John F. Daly, Frank W. Hunger, Nora Manella and Michael Jay
Dpt. of Justice, Washington, D.C.; Barnet Resnick and
Catherine T. Fair, White,
Clinebell & Resnick, Newport Beach, California, for the
cross appellees. Roger N. Golden, Beverly Hills, California,
for the plaintiff
appellee cross appellant.
On October 18, 1995, this court issued its
opinion in this case.
Both parties filed petitions for rehearing. The petition for
rehearing by Lake
Mohave Boat Owners Association is denied. In response
to the petition by the Defendants-Appellants, the panel has
made revisions to its original opinion,
and herewith enters the attached amended opinion.
BOGGS, Circuit Judge.
The National Park Service (NPS) and Seven Resorts,
Inc. (SRI) appeal from the district court's grant of summary
judgment in favor of the Lake Mohave Boat Owners Association
(LMBOA). The district court held that NPS violated the Freedom
of Information Act (FOIA), 5 U.S.C. S 552, because NPS did not
publish in the Federal Register its rate-setting guidelines
for marinas that operate in national parks. The district court
also found that NPS violated LMBOA's due process rights by not
providing it with notice and an opportunity to comment on rate
changes. The court voided the rate increase for the Lake Mohave
Resort marina, operated by SRI, and awarded restitution jointly
against both NPS and SRI for $258,093. The court also eventually
granted declaratory and injunctive relief requiring publication
of the guidelines and forbidding rate increases without notice
and opportunity for comment. NPS and SRI appeal these rulings.
LMBOA cross-appeals the district court's finding that it is
not entitled to damages because the government had not waived
We hold that LMBOA lacked standing to bring a claim for restitution
on behalf of its members. We also hold that NPS did not violate
federal law when it failed to publish in the Federal Register
the guidelines manual it used to set marina rates. Furthermore,
constitutional due process guarantees do not require NPS to
conduct a hearing before changing marina rental rates. We reverse
and remand to the district court, to determine the issue not
ruled on below of whether NPS acted arbitrarily and capriciously,
in violation of its rent-setting regulations, in approving the
rent increase. 1
LMBOA is a non-profit association of boat
owners, each of whom pays monthly rent for boat slips at SRI's
Lake Mohave Resort concession. Under its concession contract
with NPS, SRI must obtain approval of its boat slip rental rates
from NPS. NPS approved the first rent increase at issue in this
case in January 1988, raising the rental rate from $4.00 to
$5.50 per foot, based on length of boat or length of slip, whichever
was greater. This increase was allegedly based upon a study
of rates at comparable marinas.
Initially, LMBOA contended that the marinas that NPS used to
justify the increase were not comparable to the Lake Mohave
marina, and that NPS had not followed 16 U.S.C. S 20b(c)2 or
the NPS procedures set forth in chapter 18 of
NPS-48.3 LMBOA claims that rates at truly comparable marinas
are $3.31 to $3.83 per foot, based on its own comparability
study conducted in May 1988. NPS conducted another comparability
study in October 1988, and in March 1989 announced that comparable
fees were between $4.00 and $4.50 per foot.
LMBOA asked for a rate rollback, which NPS refused in July 1989.
NPS then conducted a more extensive comparability study, which
included data from Lake Shasta, a marina on federal land. That
study yielded a "comparable " rate of $5.46. LMBOA
asserts that the method used by NPS to cover the per-slip rental
rates at Lake Shasta to per-foot rental rates as used at Lake
Mohave inflated the "comparable" rental rate. LMBOA
claims that the NPS incorrectly assumed that the per-slip rate
at Lake Shasta was for the use of 15-foot boats, because the
boats generally in use at Lake Shasta are much larger than at
Lake Mohave. LMBOA contends that the Lake Shasta marina was
inappropriate for comparison purposes because it is located
on federal land.
LMBOA filed suit in March 1990 on behalf of its members. It
attacked both the procedures NPS followed in adopting its guidelines,
and the methods used to calculate the Lake Mohave rent increases.
LMBOA argued that any rent increase required notice and a hearing
under the Administrative Procedure Act (APA), 5 U.S.C. S 553,
and under the due process guarantees of the Fifth Amendment.
LMBOA also claimed that the Freedom of Information Act public
information requirements, 5 U.S.C. S 552, required NPS to publish
NPS-48 in the Federal Register. Also, LMBOA claimed that calculations
in the NPS comparability study were flawed. LMBOA sought restitution
of excess rents paid and an injunction to prevent SRI from collecting
the rent increase. LMBOA also sought a declaratory judgment
that NPS approved rent increases in violation of the APA, performed
an inaccurate comparability study to justify the increase, and
must promulgate regulations to establish the appropriate method
to cover per-slip rates to per-foot rates. LMBOA sought aggregate
damages exceeding $100,000 plus interest.
Both parties moved for summary judgment. NPS argued that the
comparability requirement was imposed by statute, 16 U.S.C.
S 20b, and that the management policies used to manage concessions
and contained in NPS-48 were developed after seeking public
comment through a published notice in the Federal Register.
41 Fed. Reg. 37622 (1976) (announcing annual review of management
policies). The standard language in concession contracts such
as the Lake Mohave contract has been published in the Federal
Register . 46 Fed. Reg. 14460, 14465 (1981) (publication of
changes to standard NPS concession contract). Because NPS-48
contained information that had either been published in the
Federal Register via these documents, or was available to the
public on request, NPS argued that S 552 did not require publication
of NPS-48 in the Federal Register.
The district court granted LMBOA's motion for summary judgment,
and held that S 552 required NPS to publish NPS-48 in the Federal
Register. The court also found that the procedural due process
guarantees of the Fifth Amendment required NPS to adopt procedures
to allow affected parties an opportunity to be heard when NPS
sets rates, and that NPS did not have such procedures in place.
The district court declared the rate increases void, enjoined
NPS from collecting the increase, and granted LMBOA restitution
and damages. The district court later amended this judgment
to reflect the second NPS rate increase effective February 1991,
and the court limited LMBOA's recovery to restitution because
the government had not waived sovereign immunity. The court
did not include injunctive or declaratory relief in this amended
judgment. After a motion by the plaintiffs and opposition from
the government, on December 29, 1993 (after this appeal had
been filed), the district court entered an order granting injunctive
and declaratory relief as well, nunc pro tunc as of April 22,
1993 (see docket entry 179, not included in Excerpts of Record).
This order declared that NPS had violated FOIA by raising rents
without publishing NPS-48 and enjoined NPS from raising rents
without providing notice and opportunity for comment and without
publishing Chapter 48 in the Federal Register.
The court did not rule on LMBOA's claim that NPS's application
of its comparability rules violated applicable rent setting
regulations. The court awarded LMBOA attorney's fees of $34,782
under the Equal Access to Justice Act, finding that NPS's position
was not substantially justified.
LMBOA argues as a preliminary matter that
the district court's jurisdiction over this case was based in
part on 28 U.S.C. S 1346 (the Little Tucker Act), and therefore
proper appellate jurisdiction lies exclusively with the Federal
Circuit. 28 U.S.C. S 1295 (exclusive Federal Circuit jurisdiction
includes "appeal of a final decision of a district court
. . . if the jurisdiction of that court was based, in whole
or in part, on section 1346 . . . ."); United States v.
Hohri, 482 U.S. 64 (1987). LMBOA argues that its members' due
process rights have been violated by the federal government
and each member has suffered damages of less than $10,000. Thus,
LMBOA claims this action meets the requirements of the Little
Tucker Act, and an appeal can be brought only in the Federal
LMBOA's argument runs counter to well-established case law.
The Little Tucker Act, 28 U.S.C. S 1346, provides district courts
with concurrent jurisdiction with the United States Court of
Federal Claims for claims of under $10,000 for which, with minor
exceptions, jurisdiction is available under the Tucker Act,
28 U.S.C. S 1491.4 To determine whether the Federal Circuit
has exclusive jurisdiction of this claim on appeal under the
Little Tucker Act, we must determine whether this claim falls
within Tucker Act jurisdiction.
To determine Tucker Act jurisdiction, "one must always
ask . . . whether the . . . legislation which the claimant cites
can fairly be interpreted as mandating compensation by the Federal
Government for the damage sustained." Bowen v. Massachusetts,
487 U.S. 879 , 907 n.42 (1988) (quoting Eastport S.S. Corp.
v. United States, 372 F.2d 1002, 1009 (1967)); see also North
Star Alaska v. United States, 9 F.3d 1430 (9th Cir. 1993) (en
banc), cert. denied, 114 S. Ct. 2706 (1994). The Court in Bowen
discussed the Back Pay Act, and statutes that provided compensation
to prisoners of war, as examples of laws that trigger Tucker
Act jurisdiction. Bowen, 487 U.S. at 907 (citing United States
v. Testan , 424 U.S. 392, 405 (1976) (Back Pay Act); Bell v.
United States, 366 U.S. 393, 398 (1961) (prisoner of war compensation)).
The Tucker Act also confers jurisdiction over claims "concerned
solely with rights created within the contractual relationship
. . . founded . . . upon [a] . . . contract with the United
States." North Star Alaska v. United States, 14 F.3d 36,
37 (9th Cir.), cert. denied, 114 S. Ct. 2706 (1994); North Side
Lumber Co. v. Block, 753 F.2d 1482, 1486 (9th Cir.), cert. denied,
474 U.S. 931 (1985).
The facts of this case cannot support Tucker Act jurisdiction.
LMBOA does not have a contract with the United States. Nor does
any statute require that the United States pay monetary damages
to LMBOA if marina rental rates rise in violation of APA procedural
requirements or LMBOA's procedural due process rights. 5 LMBOA
cannot rely on its prayer for equitable or declaratory relief
to invoke the Little Tucker Act, because the Tucker Act does
not provide equitable or declaratory relief except in very limited
situations, see 28 U.S.C. S 1491(a)(2) and (3), not present
in this case. Without a valid basis for Little Tucker Act jurisdiction,
LMBOA cannot successfully argue that the Federal Circuit has
exclusive jurisdiction on appeal. See Sharp v. Weinberger ,
798 F.2d 1521, 1522 (D.C. Cir. 1986).
We also must address whether LMBOA has standing
to assert a violation of the APA and FOIA against NPS and SRI.
A regulated entity normally has standing to sue an agency to
claim that the agency implemented regulations in violation of
See, e.g., Nguyen v. United States, 824 F.2d 697 (9th Cir. 1987)
(store owner challenged disqualification from food stamp program
based on Agriculture Department's reliance on unpublished regulations
in violation of FOIA); MadaLuna v. Fitzpatrick, 813 F.2d 1006
(9th Cir. 1987) (alien claimed INS relied on unpublished operating
instructions in violation of APA). However,
the aggrieved party need not be a member of the regulated community
to have standing to sue for a violation of a publication requirement.
Standing requires that a party demonstrate actual injury as
a result of the challenged executive action, and that the party
be within the "zone of interests" the statute is intended
to protect. See Air Courier Conf. v. American Postal Workers
Union, 498 U.S. 517 (1991); Sierra Club v. Morton, 405 U.S.
727, 738 (1972);
Association of Data Processing Service Orgs. v. Camp , 397 U.S.
150, 153 (1970); Yesler Terrace Community Council v. Cisneros,
37 F.3d 442, 445-46 (9th Cir. 1994); North Shore Gas Co. v.
EPA, 930 F.2d 1239, 1243 (7th Cir. 1991) (citing Lujan v. National
Wildlife Fed'n, 497 U.S. 871, 883 -84 (1990)). LMBOA can easily
demonstrate actual injury from the increase in rental rates.
However, whether LMBOA is within the zone of interests protected
by the statute requires a closer look.
We find that LMBOA, an organization whose members rent slips
at NPS-approved rates from a National Park concessioner, makes
a claim that is within the zone of interests protected by the
underlying statute, here 16 U.S.C.S 20b. Section 20b(c) instructs
NPS to evaluate "the reasonableness of a concessioner's
rates and charges to the public." 16 U.S.C. S 20b(c). Section
20b's legislative history demonstrates that it was designed
to encourage private businesses to provide services in national
parks, to better serve the public.
The Government now depends heavily, and must continue to depend
heavily, on private entrepreneurs to provide visitors to the
national park system with necessary facilities and services.
. . . Particularly in the case of the larger parks at which
visitors expect to stay overnight, an increased strain is being
put on accommodations and other facilities for services to visitors.
. . . [V]isitors expect the sort of accommodations and services
that only private capital can be expected to finance. . . .
Enactment of H.R. 2091 will help to overcome these financing
difficulties . . . ."
S. Rep. No. 765, 89th Cong., 1st Sess., reprinted in 1965 U.S.C.C.A.N.
3489, 3490-91 (Report on Concession Policy Act, H.R.2091). The
Concession Policy Act was an effort to codify practices followed
by NPS since 1950. Id. at 3489. Those policies were adopted
in reaction to the drastic disruption in park concessions during
World War II. An advisory group appointed by the Secretary of
the Interior recommended in 1948 that concessioners be granted
certain benefits, but that concessioners must also agree to
deliver their services at rates "as reasonable as possible,
consistent with the costs of furnishing the services."
Letter from Stewart L. Udall to Hon. Wayne N. Aspinall, reprinted
in 1965 U.S.C.C.A.N. 3489, 3497. Furthermore, the Senate Committee
on Interior and Insular Affairs noted that it had: considerable
concern over the apparent trend in national parks to provide
facilities that only the wealthy can afford. In this connection,
[the Committee] strongly recommends that the National Park Service
in the implementation of its concession policies require that
concessioners provide all types of facilities at prices the
ordinary and middle class user can afford as well as catering
to the wealthy.
Id. at 3494.
Accordingly, in S 20b(c) Congress has instructed NPS to set reasonable
rates by comparing the concessioner's rates to rates charges by
comparable businesses. By doing so, NPS would allow the concessioner
a fair return, without allowing excessive profits. Both the language
of the statute and legislative history indicate that Congress
intended to protect both concessioners and their customers through
However, we caution that this determination that LMBOA is within
the "zone of interests" of S 20b does not decide the
issue of whether the statute creates a property interest subject
to the protection of the Due Process Clause in favor of LMBOA.
"[T]he zone of interests test is `not meant to be particularly
demanding.' " Central Ariz. Water Conservation Dist. v. EPA,
990 F.2d 1531, 1538 (9th Cir.) (quoting National Wildlife Fed'n
v. Burford, 871 F.2d 849, 852 (9th Cir. 1989)), cert. denied,
114 S.Ct. 94 (1993). The test to determine whether a statute creates
a property interest is much more demanding. See Board of Regents
v. Roth, 408 U.S. 564 (1972); Fidelity Fin. Corp. v. Federal Home
Loan Bank, 792 F.2d 1432, 1436 (9th Cir. 1986) (property interest
created if rule gives party "legitimate claim of entitlement
" to benefit), cert. denied, 479 U.S. 1064 .
Although LMBOA, as an association of customers of concessions,
is within the "zone of interests " of S 20b, it sued
on behalf of its members, seeking in part restitution of the rate
increase paid by its members. No individual users are plaintiffs
in this suit. We hold that LMBOA has standing to sue only for
prospective relief on behalf of its members.
The three-part test for representational standing was stated in
Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333
(1976). [A]n association has standing to bring suit on behalf
of its members when: (a) its members would otherwise have standing
to sue in their own right; (b) the interests it seeks to protect
are germane to the organization's purpose; and (c) neither the
claim asserted nor the relief requested requires the participation
of individual members in the lawsuit.
Id. at 343 (citing Warth v. Seldin 442 U.S 490, 511, 515 (1974));
see also Pennell v. City of San Jose , 485 U.S. 1 , 7 & n.3
We find that, while LMBOA's members would have standing to sue
in their own right, and LMBOA's organizational purpose encompasses
an interest in slip rental rates, LMBOA's pursuit of restitution
of rental fees to members fails the third part of the Hunt test.
As explained in Warth: [T]he damages claims are not common to
the entire membership, nor shared by all in equal degree. To the
contrary, whatever injury may have been suf fered is peculiar
to the individual member concerned, and both the fact and extent
of injury would require individualized proof. Thus, to obtain
relief in damages, each member . . . who claims injury as a result
of respondents' practices must be a party to the suit . . . .
422 U.S. at 515 -16; see also Associated General Contractors,
Inc. v. Coalition for Economic Equity, 950 F.2d 1401, 1408 (1991),
cert. denied, 112 S. Ct. 1670 (1992). Here, each LMBOA member's
amount of restitution may differ, since each member paid a per
foot fee based on length of slip or length of boat, whichever
was greater. Boat size, slip size, and amount of use will be different
for each member. Awarding restitution to LMBOA on behalf of its
members would require individualized proof. Therefore, LMBOA lacks
standing to bring a claim for this remedy on behalf of its members.
We now turn to the appeal on the merits by NPS, in which it contends
that it did not violate FOIA by failing to publish NPS-48 and
did not violate the due process rights of LMBOA members by failing
to provide notice and an opportunity to be heard before raising
their marina rates.
NPS and SRI appealed the district court's
holding that NPS's failure to publish NPS-48 in the Federal
Register violated FOIA's publication requirements, 5 U.S.C.S
552. The district court's legal conclusion that NPS-48 is a
generally applicable rule, regulation or procedure that must
be published in the Federal Register, and its subsequent grant
of summary judgment are both subject to de novo review. Nguyen
v. United States, 824 F.2d 697, 699 (9th Cir. 1987).
FOIA imposes upon the federal government certain obligations
to make material available to the public. Organizational descriptions,
rules of procedure, and substantive rules and policy statements
of general applicability are governed by S 552(a)(1), which
requires that the government publish these materials in the
Federal Register. Final agency opinions and orders, interpretations,
policy statements not covered by S 552(a)(1), and administrative
staff manuals are governed by S 552(a)(2), which requires that
the government make these materials available for public inspection
and copying. All other agency records (apart from those exempt
under S 552(b), concerning, e.g., national security, personnel
matters, and trade secrets) are to be made available to any
party who requests and reasonably describes the material.
"[A]n individual may not raise an FOIA claim based on an
agency's failure to publish a rule or regulation, unless he
makes an `initial showing' that `he was adversely affected by
the lack of publication . . . .' "Mada-Luna v. Fitzpatrick,
813 F.2d 1006, 1018 (9th Cir. 1987). As a threshold matter,
LMBOA has not demonstrated that it was "adversely affected"
by the lack of publication, and so cannot state a claim under
S 552. Nguyen, 824 F.2d at 700; Mada-Luna, 813 F.2d at 1018
(quoting Zaharakis v. Heckler, 744 F.2d 711, 714 (9th Cir. 1984)).
We consider three major factors to determine whether NPS's failure
to publish NPS-48 adversely affected LMBOA's substantive rights.
First, we examine whether NPS-48 changes existing rules, policies
or practices. Second, we consider whether NPS-48 deviated from
the plain meaning of the statute.
Third, we determine whether NPS-48 is binding and narrowly limits
administrative discretion. Nguyen, 824 F.2d at 701. On the record
before us, it appears that NPS did not change its governing
rules and then apply new rules without warning in NPS-48.
We also find that NPS-48 does not deviate from the plain meaning
of 16 U.S.C. 20b, because the comparability standard is included
in that statute, nor does NPS-48 narrowly limit administrative
discretion by providing "interpretation[s that] will be
conclusive in the agency's ultimate decision." Nguyen,
824 F.2d at 701. Therefore, LMBOA was not adversely affected
by any failure to publish NPS-48.
However, even if LMBOA could demonstrate that NPS's failure
to publish NPS-48 adversely affected its substantive rights,
find that NPS-48 is an agency staff manual governed by S 552
(a)(2), rather than a statement of substantive rules or policy
governed by S 552(a)(1). Accordingly, NPS is not required to
publish NPS-48 in the Federal Register, under the exemption
provided in S 552(a)(2)(C) .
NPS has complied with the requirements of FOIA by making NPS-48
available to the public. See Capuano v. NTSB, 843 F.2d 56, 58
(1st Cir. 1988) (FAA enforcement manual need not be published),
Donovan v. Wollaston
Alloys, Inc., 695 F. 2d 1, 9-10 (1st Cir. 1982) (OSHA inspection
program need not be published); Jordan v. Department of Justice,
591 F.2d 753, 760 (D.C. Cir. 1978) (documents discussing use
of prosecutorial discretion are not administrative staff manuals),
overruled in part on other grounds, Crooker v. BATF, 670 F.2d
1051 (D.C. Cir. 1981) (en banc).
NPS appeals the district court's ruling that
NPS violated LMBOA members' due process rights by not providing
notice and a meaningful opportunity to be heard when it raised
marina rates. NPS argues that no constitutionally protected
liberty or property interest is implicated in this case, as
required under Board of Regents v. Roth, 408 U.S. 564 , 57677
(1972); see also Baumann v. Arizona Dept. of Corrections, 754
F.2d 841, 843 (9th cir. 1985). Whether such an interest is present
is an issue of law this court reviews de novo. Baumann, 754
F.2d at 843.
NPS argues that LMBOA members have no property right in continued
low marina rates, because LMBOA has not shown a contractual
or statutory basis for such an interest. Cf. San Bernardino
Physicians, Servs. Medical Group, Inc. v. County of San Bernardino,
825 F.2d 1404, 1407-10 (9th Cir. 1987) (contracts); Fidelity
Fin. Corp. v. Federal Home Loan Bank, 792 F.2d 1432, 1436 (9th
Cir. 1986), cert. denied, 479 U.S. 1064 (1987); Baumann, 754
F.2d at 844-45.
LMBOA in response asserts that the statutes cover a benefit
on the public at large, and LMBOA members are a subset of that
public. LMBOA notes that 16 U.S.C. S 460n-3(a) requires that
the "Lake Mead National Recreation Area shall be administered
by the Secretary of the Interior for general purposes of public
recreation, benefit and use." LMBOA claims that this benefit
is protected by procedural due process guarantees.
However, to maintain a due process claim, LMBOA must show that
existing rules and regulations give its members a legitimate
claim of entitlement to low marina rents. See Fidelity Fin.
Corp., 792 F.2d at 1436. We hold that general statutory language
indicating a governmental purpose to provide parks for the public
does not meet this requirement. We also hold that the requirement
in S 20b that rates be "reasonable" does not give
LMBOA a statutory entitlement to low marina rates.
Not only is there no constitutional basis for requiring notice
and comment, but the APA does not require notice and comment
under these facts. 5 U.S.C. S 553 ("General notice of proposed
rule making shall be published . . .[e]xcept . . . this subsection
does not apply . . . to interpretive rules, general statements
of policy, or rules of agency organization . . . ."); Lincoln
v. Vigil, 113 S. Ct. 2024, 2034 (1993); see also Mada-Luna,
813 F.2d at 1012.
In Mada-Luna, this court found that INS operating instructions
fell within the "general statements of policy" exception
to the APA's notice and comment provisions provided in S 553(b)(A)
andS 553(d)(2). Ibid. This court drew the distinction between
directives that guide agency personnel in the exercise of discretionary
authority, and those that establish a "binding norm."
Id. at 1015. NPS-48 guides personnel in their application of
the comparability requirements of 16 U.S.C. S 20b, and therefore
fits within the "general statement of policy" exception.
Thus, NPS is not required to comply with the APA's notice and
comment provisions before applying NPS-48.
In addition, appellant SRI argues that this
court lacks jurisdiction over it. SRI notes that the district
court's bases for finding for LMBOA included the APA, FOIA,
and 16 U.S.C. S 20b. The APA and FOIA apply only to the actions
of an authority of the government of the United States, City
of Rohnert Park v. Harris, 601 F.2d 1040 (9th Cir. 1979), cert.
denied, 445 U.S. 961 (1980), and 16 U.S.C. S 20b does not provide
for a private right of action. Glacier Park Foundation v. Watt,
663 F.2d 882, 884-85 (9th Cir. 1981).
However, LMBOA is not requesting a remedy based upon any alleged
violation of these federal statutes by SRI. Rather, LMBOA's
claim against SRI is that SRI illegally collected and retained
excess rent in violation of state law. This claim arises out
of the same common nucleus of operative fact as its claim against
NPS. Since the federal courts have federal question jurisdiction
over the NPS claim, we have supplemental jurisdiction over the
SRI claim. 28 U.S.C. S 1367. Furthermore, SRI is properly joined
as a defendant because SRI profited from an alleged unlawful
rental rate increase. In SRI's absence, the court could not
fashion complete relief. Joinder is therefore proper under Fed.
R. Civ. P. 19. In addition, our exercise of this jurisdiction
is desirable to further judicial economy.
So, while SRI might be able to raise its reliance on NPS's decisions
as a defense to LMBOA's claim, it is within the jurisdiction
of the district court, and this court, to consider claims related
to SRI in this case. See Donaldson v. United States Department
of Labor, 930 F.2d 339, 345 n.10 (4th Cir. 1991) (employer's
reliance on agency's erroneous legal ruling is a defense); Goodman
v. McDonnell Douglas Corp., 606 F.2d 800, 807(8th Cir. 1979)
(veterans may sue employer for violation of Veteran's Reemployment
Right Act when employer relied on Labor Department endorsement
of employment practices), cert. denied, 446 U.S. 913 (1980);
Atlantic Richfield Co. v. Federal Energy Admin., No. C-771209-CBR,
1978 WL 926 (N.D. Cal. Feb. 15, 1978) (oil company may seek
restitution of government-ordered payments made to service station
lessee under invalid regulation). Since LMBOA may pursue its
unruled-upon claim on remand against NPS for violating its rent-setting
regulations, we find that, if LMBOA were to state a proper claim
that includes SRI, the court would have jurisdiction over SRI.
We hold LMBOA lacked standing to bring its
claim for restitution on behalf of its membership. We also hold
that NPS did not violate FOIA's publication requirements or
APA's notice and comment provisions in relying upon NPS-48 to
approve SRI's proposed rate increases. Accordingly, we vacate
the district court's judgment and remand with instructions to
dismiss those claims. Since the district court did not rule
on the issue of whether NPS acted arbitrarily and capriciously
in setting marina rates, we remand for consideration of that
REVERSED and REMANDED.
[ Footnote * ] The Honorable
Danny J. Boggs, United States Circuit Judge, United States Court
of Appeals for the Sixth Circuit, sitting by designation.
[ Footnote 1 ] Because we hold that LMBOA is not entitled to
damages for a violation of FOIA or due process, we need not
address LMBOA's cross-appeal regarding sovereign immunity. 2
16 U.S.C. S 20b(c) reads as follows: The reasonableness of a
concessioner's rates and charges to the public shall, unless
otherwise provided in the contract, be judged primarily by comparison
with those current for facilities and services of comparable
character under similar conditions, with due consideration for
length of season, provision for peakloads, average percentage
of occupancy, accessibility, availability and costs of labor
and materials, type of patronage, and other factors deemed significant
by the Secretary.
[ Footnote 3 ] NPS-48 is a 900-page concession management manual
containing detailed instructions for how to judge comparability.
Only chapter 18 of NPS-48 contains guidelines that address the
issues raised by this case.
[ Footnote 4 ] Congress provided decentralized
jurisdiction for these relatively small claims to give claimants
the ability to "bring suits in the districts where they
and their witnesses reside without subjecting them to the expense
and annoyance of litigating in Washington." United States
v. Hohri, 482 U.S. 64 , 66 n.1 (1987) (quoting United States
v. King , 119 F. Supp. 398,403 (D. Ala. 1954), cited in 14 Charles
A. Wright et al., Federal Practice and Procedure S 3657 at 284-88
(2d ed. 1985)).
[ Footnote 5 ] Moreover, as we have said,
"the Claims Court itself repeatedly has refused jurisdiction
over any fifth amendment due process claim, reasoning that the
due process clause . . . does not mandate compensation by the
United States." Marshall Leasing, Inc. v. United States,
893 F.2d 1096, 1101 (9th Cir. 1990).