Appeal from an order of the United States District Court for the Eastern District of New York (Joseph M. McLaughlin, Judge) dismissing a complaint requesting declaratory relief against the United States Coast Guard and other federal agencies under a variety of theories, including, inter alia, claims under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1982), for failing properly to administer the statutes and rules relating to crews and working conditions on certain United States vessels as well as the statutes and rules relating to certain licensing examinations. Judgment affirmed on the grounds that appellant's complaint is not justiciable.
Oakes, Van Graafeiland, and Winter, Circuit Judges.
This appeal is from dismissal of an unwieldy 52-page, 202-paragraph complaint asserting 37 causes of action and containing 22 prayers for declaratory relief. A union of seamen aboard United States merchant vessels brought this action against the United States Coast Guard and other agencies and officials seeking declaratory relief directed to the manner in which the responsible agencies administer the laws relating to manning of vessels and working conditions on United States flag and merchant vessels, as well as to certain licensing examination procedures. The complaint is an omnibus attack on how the Coast Guard administers a rather considerable body of maritime law, and review by the courts is principally sought under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (1982). The United States District Court for the Eastern District of New York, Joseph M. McLaughlin, Judge, dismissed the complaint on a series of grounds, holding that the union had no standing in that there was no expression of congressional intent to allow seamen to enforce the statutes; that the doctrine of primary jurisdiction bars the court from considering the issues at this time; that the defense of sovereign immunity deprives the court of jurisdiction in this matter; and that the complaint raises issues that are not yet ripe for judicial review and should thus be dismissed for want of jurisdiction. We affirm.
Seafarers International Union of North America, AFL-CIO (Seafarers), is an international labor union with in excess of 40,000 members who are unlicensed merchant seamen, most of whom work and sail aboard vessels (including tugs and barges) registered in the United States. This suit was brought against the Secretary of Transportation, the Coast Guard, the Commandant of the Coast Guard, the Secretary of Labor, the Secretary of Health, Education and Welfare, and the Surgeon General of the United States, seeking a declaration of rights in reference to the Coast Guard's administration of manning, licensing and working condition provisions of the relevant statutes. Seafarers seeks not only declaratory relief but also an order compelling the defendants to enforce applicable statutes, regulations and policies, and to promulgate regulations in accordance with applicable statutes and federal policies. It is difficult to summarize the various claims made in the complaint. They can be categorized, however, by the various parts of the regulatory scheme the union claims the Coast Guard is failing to enforce.
Manning Regulations. The Coast Guard's enforcement of manning regulations is challenged in a variety of ways. Seafarers claims that some unspecified vessels sail without dividing their crews into three watches as required by 46 U.S.C. § 673 (1976).*fn1 It is further alleged that some unspecified vessels sail with seamen who have been hired to work alternately in the engine room and the deck as opposed to in one or the other, and that on some unspecified vessels officers and seamen are required to work unreasonable amounts of overtime, both also in violation of that section. Seafarers further complains that Coast Guard enforcement of 46 U.S.C. § 673*fn2 is in general improperly restricted to only those positions explicitly listed in section 673, some of which are now technologically obsolete with the advent of diesel power plants as opposed to steam engines. Seafarers alleges that section 673 should therefore be implemented in the relevant regulations to include new positions not explicitly referred to in the statute so as to effectuate Congress' intent in promulgating the statute in light of recent technological developments.*fn3
The complaint further seeks to have the three watch provision of section 673 applied to persons in the position of "deck maintenance utility" because Seafarers believes persons in that position should be deemed "sailors" within 46 C.F.R. § 157.10-65, supra note 2. Seafarers also alleges that some unspecified tugs and barges on voyages of less than 600 miles divide their crew into less than two watches in violation of the same provisions of section 673. And another cause of action alleges that certain officers subordinate to the Coast Guard Commandant do not observe the three watch system provisions of section 673 in fixing complements of officers and crews for vessels subject to the manning provisions of 46 U.S.C. § 222 (1976),*fn4 as required by 46 C.F.R. § 157.20-5 (1983).*fn5
In a further attack on the Coast Guard's manning regulations, Seafarers asserts that section 222, supra note 4, which requires the Coast Guard to certify that each vessel has the proper complement of officers and crew necessary for safe navigation, impliedly requires the Coast Guard to consider collective bargaining in determining vessel workforce levels. It is alleged that the relevant regulation, 46 C.F.R. § 157.15-1 (1983),*fn6 does not accommodate collective bargaining in violation of the statute.
A number of the causes of action allege that the Coast Guard is allowing some vessels to avoid the manning requirements through improper classifications -- by treating tug-barge combinations as a single vessel, for examinple.*fn7 Still other claims assert that the Coast Guard is allowing seamen to sail without proper certification, in violation of 46 U.S.C. § 672 (1976). More generally and finally, there are various catch-all manning complaints; representative of these causes of actions is one which states that certain types of vessels which carry passengers or freight for hire, and hence are subject to the provisions of 46 U.S.C. § 404 (1976),*fn8 do not comply with the manning requirements of that statute, and have not been inspected by the Coast Guard as required.
Licensing Regulations. A number of Seafarers' causes of action allege that the Coast Guard has failed to carry out its duties under 46 U.S.C. §§ 228-229 (1976)*fn9 to assure that qualified persons may advance through the ranks to become deck officers and engineers. Seafarers alleges that the Coast Guard instead uses examinations which favor persons who have graduated from accredited maritime schools over the unschooled experienced applicants.In particular, the examination given for the positions of deck officer, mate, and engineer as set forth in 46 C.F.R. §§ 10.05-45(a), 10.10-4(a), 10.15-31 (1983),*fn10 are challenged as too theoretical and therefore discriminatory against those Seafarers' members who have more practical work experience.
Working Conditions. Safety and working conditions on merchant vessels are challenged in several causes of action. Noise levels for engine machinery subject to Coast Guard inspection under 46 U.S.C. § 392 (1976) are claimed to be too high on some unspecified vessels. Other unnamed vessels are alleged to be too unhealthy to work aboard because of excessive noise levels, offensive odors and fumes, unsafe equipment and inadequate ventilation. Some unspecified vessels are said not to provide medicine chests in violation of 46 U.S.C. § 666 (1976) or adequate lifesaving apparatus in violation of 46 U.S.C. § 481 (1976).It is also claimed that certain unnamed vessels are permitted to operate in violation of 46 U.S.C. § 660a (1976), and 46 C.F.R. § 32.40-5 (1983), which regulate health, lighting, ventilation and sanitary conditions on board certain vessels.
It will thus be seen that the complaint alleges that there were unspecified instances of statutory violations on board "some" unnamed vessels or "some or all" unnamed vessels subject to Coast Guard regulation. The complaint then asserts that Seafarers had somehow requested the Coast Guard to enforce the law according to its statutory interpretations, but that the Coast Guard has neglected to do so either by failing to enforce statutes or regulations or by failing to promulgate rules to enforce statutes.
For some causes of action exhaustion of administrative remedies is pleaded in the most general of terms, by stating, for example, that "[p]laintiff has requested the Commandant and the Coast Guard to enforce the provisions . . . but the defendants have failed to do so." For other causes of action exhaustion is not pleaded at all. Apparently neither Seafarers nor any of its members have made use of enforcement actions provided under the Coast Guard regulations, discussed infra, to challenge specific violations on specific ...