Santa Fe Discount Cruise Parking , Inc ., D/ B / Aez Cruise Parking v. Federal Maritime Commission and United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2018 Decided May 11, 2018
No. 17-1089
S ANTA FE D ISCOUNT C RUISE P ARKING , INC ., D/ B / A EZ C RUISE
P ARKING AND S YLVIA R OBLEDO, D/ B / A 81ST DOLPHIN
P ARKING ,
P ETITIONERS
v.
FEDERAL M ARITIME C OMMISSION AND UNITED S TATES OF
AMERICA,
R ESPONDENTS
BOARD OF TRUSTEES OF THE GALVESTON W HARVES AND
GALVESTON P ORT FACILITIES C ORPORATION ,
INTERVENORS
On Petition for Review of an Order
of the Federal Maritime Commission
Gerald A. Morrissey III argued the cause and filed the
briefs for petitioners.
William H. Shakely, Deputy General Counsel, Federal
Maritime Commission, argued the cause for respondents.
With him on the brief were James J. Fredricks and Robert J.
Wiggers, Attorneys, U.S. Department of Justice, Tyler J. Wood,

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General Counsel, Federal Maritime Commission, and Daniel
S. Lee, Attorney-Advisor.
Anthony P. Brown argued the cause for intervenor. With
him on the brief were David E. Cowen, Amanda D. Wright, and
Jocelyn A. Holland.
Before: KAVANAUGH and M ILLETT, Circuit Judges, and
S ENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH .
KAVANAUGH , Circuit Judge: This is not a complicated
case. The Galveston Port charges commercial passenger
vehicles such as taxis, limos, and shuttle buses for access to the
Port’s parking terminal. Petitioners operate shuttle buses.
The Port charged Petitioners’ shuttle buses more than the Port
charged taxis and limos. Petitioners challenge that differential
treatment.
Under the Shipping Act, a marine terminal operator such
as the Galveston Port may not “give any undue or unreasonable
preference or advantage or impose any undue or unreasonable
prejudice or disadvantage with respect to any person.” 46
U.S.C. § 41106(2). A disadvantaged party may bring a
Section 41106(2) rate-discrimination complaint against the
marine terminal operator before the Federal Maritime
Commission. In adjudicating those complaints, the
Commission applies a multi-part test that is not challenged by
the parties here. To make out a Section 41106(2) claim, the
complaining party must establish that the complainant and
another party are similarly situated or in a competitive
relationship; that the parties are accorded different treatment by
the respondent marine terminal operator; and that the
differential treatment injures the complaining party. If the

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complaining party makes that showing, the respondent marine
terminal operator has the burden of justifying the differential
treatment based on legitimate transportation factors. See
Ceres Marine Terminal, Inc. v. Maryland Port Administration,
27 S.R.R. 1251 (FMC 1997).
Here, Petitioners contend that they met their burden of
showing that they were similarly situated to or in a competitive
relationship with taxis and limos; that they were accorded
different treatment; and that the differential treatment injured
Petitioners. Petitioners argue that the burden is therefore on
the Galveston Port to justify the differential treatment based on
legitimate transportation factors.
The Federal Maritime Commission accepted that
Petitioners’ shuttle buses were treated differently than taxis and
limos. But the Commission then strangely concluded that
Petitioners were not injured by being charged more. The
Commission’s conclusion is not sustainable. Petitioners were
plainly injured when they were charged more than the other
commercial passenger vehicles. To be sure, under the statute
and the Ceres test, the Galveston Port may be able to show that
the differential treatment of Petitioners’ shuttle buses is
justified by legitimate transportation factors. But the
Commission never reached that step of the analysis. On
remand, the Commission may consider the Port’s argument to
that effect.
We grant the petition, vacate the order of the Federal
Maritime Commission, and remand for further proceedings
consistent with this opinion.
So ordered.

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