Detroit International Bridge v. Government of Canada ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2017 Decided November 21, 2017
Reissued March 6, 2018
No. 16-5270
DETROIT INTERNATIONAL BRIDGE COMPANY, A MICHIGAN
CORPORATION AND CANADIAN TRANSIT COMPANY, A
CANADIAN SPECIAL ACT CORPORATION,
APPELLANTS
v.
GOVERNMENT OF CANADA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00476)
Hamish Hume argued the cause and filed the briefs for
appellants.
Robert J. Lundman, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
were Jeffrey H. Wood, Acting Assistant Attorney General, and
J. David Gunter II, Trial Attorney. Matt Littleton, Trial
Attorney, entered an appearance.
Joshua O. Booth, Assistant Attorney General, Office of the
Attorney General for the State of Michigan, was on the brief
2
for amicus curiae Michigan Governor Richard D. Snyder in
support of defendants-appellees.
Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and SENTELLE, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The Ambassador Bridge is the
only bridge spanning the Detroit River between Detroit,
Michigan and Windsor, Canada. It has been in operation since
1929 and is currently owned and operated by the Canadian
Transit Company, which is wholly owned by the Detroit
International Bridge Company (collectively “the Company”).
The Company decided to build a new span (“the Twin Span”)
in order to allow maintenance of the aging structure of the old
span. This appeal involves the Company’s effort to have
declared invalid a Crossing Agreement entered into in 2012 by
Michigan State officials and the Government of Canada to
build another bridge, within two miles of the Ambassador
Bridge. The Company appeals the dismissal of four counts of
its complaint and the grant of summary judgment on one count,
raising statutory challenges and one constitutional objection.
For the following reasons, we conclude none of the challenges
are persuasive and, accordingly, we affirm.
I.
The 1909 Treaty Between the United States and Great
Britain Relating to Boundary Waters Between the United
States and Canada required authorization by “special
agreement” prior to the construction of any bridge over the
boundary waters between Canada and the United States. 36
Stat. 2448 (signed Jan. 11, 1909). In 1921, Congress
authorized the Company’s predecessor to build the
3
Ambassador Bridge over the Detroit River. See Act of Mar. 4,
1921, 41 Stat. 1439. In 1972, Congress enacted a general
statute, the International Bridge Act (“IBA”), authorizing the
construction of international bridges subject to certain
conditions. 33 U.S.C. § 535 et seq.
More than fifteen years ago, the Company decided to build
a Twin Span in order to allow for maintenance of the
Ambassador Bridge to be done without disrupting bridge traffic
across the Detroit River. In 2012, acting pursuant to the IBA,
the Governor of Michigan along with the Michigan Department
of Transportation and the Michigan Strategic Fund entered into
a Crossing Agreement with the Canadian Government to build
another bridge within two miles of the Ambassador Bridge.
The Secretary of State approved the Crossing Agreement
pursuant to Section 3 of the IBA, and issued a Presidential
Permit under Section 4 of the IBA pursuant to Executive Order
No. 11,423, 33 Fed. Reg. 11,741 (Aug. 16, 1968), amended by
Executive Order No. 13,337, 69 Fed. Reg. 25,299 (Apr. 30,
2004). Upon considering agency and public comments and
environmental documentation, the Secretary concluded that the
approval and the permit “would serve the national interest
because the [bridge] would advance the United States’ foreign
policy interest in its bilateral relationship with Canada;”
facilitate cross-border traffic, trade, and commerce; create jobs;
and advance “national defense priorities.” New International
Bridge Record of Decision 1, 3 (Mar. 26, 2013) (“ROD”).
The Company has challenged the lawfulness of the
Crossing Agreement in state and federal court. A state court
recently rejected the challenge to the State officials’ authority
to execute the Agreement. Michigan Dep’t of Transp. v.
Riverview-Trenton R.R. Co., et. al., No. 17-000536-CC (Mich.
Ct. App. Oct. 11, 2017).
4
Prior to that, in 2013, the Company filed in the United
States District Court for the District of Columbia a nine-count
complaint based on the non-delegation doctrine and various
statutory objections.1 The district court dismissed seven counts
for failure to state a claim upon which relief can be granted,
four of which are at issue in this appeal. Detroit Int’l Bridge
Co. v. Gov’t of Canada, 133 F. Supp. 3d 70, 109 (D.D.C. 2015).
The district court denied the Company’s motion for
reconsideration of several dismissed counts. Detroit Int’l
Bridge Co. v. Gov’t of Canada, 189 F. Supp. 3d 85, 110
1
Count 1 alleged Congress unconstitutionally delegated
Compact Clause authority to the Secretary of State without an
intelligible principle in Section 3 of the IBA. Compl. ¶ 292. Counts
2 and 3 sought declarative and injunctive relief to prohibit Executive
officials from supporting and approving the new government bridge,
alleging this approval violated the Company’s statutory and
contractual franchise rights to maintain and operate the Ambassador
Bridge and the Twin Span. Id. ¶¶ 299, 305, 312-13, 321-24. Count
4 alleged the Coast Guard unlawfully denied or delayed approval of
the Company’s application for a permit to build the Twin Span. Id.
¶¶ 326, 327-30. Count 5 alleged a taking and appropriation of the
Company’s private property in violation of the Takings Clause and
Due Process Clause of the Fifth Amendment, U.S. CONST. amend.
V. Id. ¶¶ 335, 338-39. Count 6 alleged the State Department’s
issuance of a Presidential Permit for the new governmental bridge
was arbitrary and capricious in violation of the Administrative
Procedure Act (“APA”). Id. ¶ 341. Count 7 alleged the Secretary of
State’s approval of the Crossing Agreement violated the APA
because the Agreement was invalid under Michigan law. Id. ¶ 357.
Count 8 sought to enjoin all federal defendants from implementing
or relying upon permits and approvals of the Crossing Agreement,
because the approvals were unlawful and exceeded the defendants’
authority. Id. ¶¶ 364, 368-89. Count 9 alleged the federal defendants
had discriminated against the Company in favor of the government
bridge in violation of the Equal Protection Clause of the Fifth
Amendment, U.S. CONST. amend. V. Id. ¶¶ 371-73.
 5
(D.D.C. 2016). Another count was dismissed as moot pursuant
to a mandate from this court. Detroit Int’l Bridge Co. v. Gov’t
of Canada, No. CV 10-476, 2016 WL 8377074, at *1 (D.D.C.
Apr. 7, 2016). The district court granted summary judgment
on the remaining count, which the Company appeals, ruling
that the claim could not proceed because the State of Michigan
was an indispensable party, see FED. R. CIV. P. 19, and,
alternatively, that the claim failed on the merits. Detroit Int’l
Bridge Co. v. Gov’t of Canada, 192 F. Supp. 3d 54, 66, 70-71
(D.D.C. 2016).
II.
On appeal, the Company contends that the approval by the
Secretary of State of the Crossing Agreement was contrary to
Michigan law, and was therefore not an authorized approval
under Section 3 of the IBA, and was, in any event, arbitrary and
capricious. It also contends that the Company was entitled to
declaratory and injunctive relief in order to prevent executive
agencies from supporting and approving the new bridge
pursuant to Section 3 and thereby blocking the Twin Span
contrary to the will of Congress. Additionally, the Company
contends that Congress unconstitutionally delegated its
authority under the Compact Clause, U.S. CONST., art. I, § 10,
cl. 3, in Section 3 of the IBA. Finally, the Company contends
the district court not only had jurisdiction to review the
Secretary’s issuance of the Presidential Permit under Section 4
of the IBA, but also failed to recognize there was law to apply.
Our review of the dismissals of four counts and summary
judgment on a fifth count is de novo. Baylor v. Mitchell
Rubenstein & Assocs., P.C., 857 F.3d 939, 944 (D.C. Cir.
2017); Coleman v. Duke, 867 F.3d 204, 209 (D.C. Cir. 2017).
6
The IBA provides, in pertinent part:
The consent of Congress is hereby granted to the
construction, maintenance, and operation of any
bridge and approaches thereto, which will connect the
United States with any foreign country (hereinafter in
this subchapter referred to as an “international
bridge”) and to the collection of tolls for its use, so far
as the United States has jurisdiction. Such consent
shall be subject to (1) the approval of the proper
authorities in the foreign country concerned; (2) [not
at issue here]; and (3) [] the provisions of this
subchapter.
33 U.S.C. § 535.
A.
Section 3 provides Congressional consent for states to
enter into international bridge agreements with Canada or
Mexico and requires the Secretary of State’s approval of the
agreements. 33 U.S.C. § 535a.2 The Company, viewing
2
Section 3 of the IBA provides:
The consent of Congress is hereby granted for a State or a
subdivision or instrumentality thereof to enter into
agreements —
(1) with the Government of Canada, a Canadian Province, or
a subdivision or instrumentality of either, in the case of a
bridge connecting the United States and Canada, or
(2) with the Government of Mexico, a Mexican State, or a
subdivision or instrumentality of either, in the case of a
bridge connecting the United States and Mexico, for the
construction, operation, and maintenance of such bridge in
accordance with the applicable provisions of this subchapter.
7
Section 3 to authorize approval of only valid agreements, raises
three challenges to the Secretary’s approval of the Crossing
Agreement.
1. Regarding summary judgment on Count 7, the
Company contends that the Secretary failed to inquire
adequately into Michigan law, and to the extent an inquiry was
made the Secretary’s action was arbitrary and capricious. In
particular, the Company points to state law that it maintains
prohibited the State officials from executing the Crossing
Agreement, and specifically maintains that the Urban
Cooperation Act, 2011 Mich. Pub. Acts 63 § 384(1), and 2012
Mich. Pub. Acts 236 § 402(1) did not authorize the Governor,
the Michigan Department of Transportation, or the Michigan
Strategic Fund to execute the 2012 Crossing Agreement.
Neither the plain text of Section 3 nor other provisions of
the IBA appear to require the Secretary to inquire into state law.
See 33 U.S.C. §§ 535-535i. Instead, as the Secretary explained
in responding to comments on the Crossing Agreement, the
Secretary’s function is to assess the effects the Crossing
Agreement would have on the foreign policy of the United
States. Resp. to Cmts., ROD, App. A at 4. But even assuming
a state-law inquiry was required, the IBA does not require this
court to review the state-law question de novo. Instead, the
question for this court would be whether the Secretary made a
“clear error of judgment.” Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(quoting Bowman Transp. Inc. v. Arkansas-Best Freight
System, Inc., 419 U.S. 281, 285 (1974)). Finding no such error,
The effectiveness of such agreement shall be conditioned on
its approval by the Secretary of State.
33 U.S.C. § 535a.
8
we conclude the district court properly granted summary
judgment on Count 7 of the complaint.
The Secretary invited the Governor to explain whether
Michigan State officials had legal authority to execute the
Crossing Agreement, and received a letter from a Counsel to
the Governor attaching a letter from a Deputy State Attorney
General. Both letters represented that the Governor, the
Michigan Department of Transportation, and the Michigan
Strategic Fund did not require legislative approval to enter into
the Crossing Agreement, and that the Crossing Agreement was
valid under Michigan state law, including the Urban
Cooperation Act. The Secretary relied on these letters in
responding to public comments and that response was attached
to the Record of Decision. See Resp. to Cmts., ROD, App. A.
The Company objects that the letters contain only conclusory
statements and states that the Secretary should have relied
instead on letters from State legislators casting doubt on the
authority of the Michigan officials to enter the Crossing
Agreement. These objections do not, for purposes of Section
3, diminish the adequacy of the Secretary’s inquiry or the
correctness of the legal advice received, much less show that
the Secretary was arbitrary and capricious in relying on the
legal advice from the Office of the State Attorney General and
Counsel to the Governor. The Secretary explained that the
Michigan Attorney General “speaks authoritatively on
Michigan law[,]” Resp. to Cmts., ROD, App. A at 4, and the
Company does not show that relying on that legal advice was a
clear error in judgment.
Notably, this is not a case in which the Michigan Supreme
Court had spoken on the state-law question to the contrary or
where there was evidence that the Crossing Agreement was
facially invalid. Indeed, a court has confirmed the officials’
authority. See Michigan Dep’t of Transp, No. 17-000536-CC.
9
Additionally, the Company fails to show that the Crossing
Agreement is plainly invalid under Michigan law. For
instance, the Company maintains that the Crossing Agreement
violates the Urban Cooperation Act of 1967, which provides
that Michigan agencies can exercise only powers they share in
common with other agencies or possess independently, Mich.
Comp. Laws Ann. § 124.504, by authorizing the Michigan
Department of Transportation and Strategic Fund to “‘design,
construct, finance, operate and maintain’” and collect tolls
from an international bridge when the departments do not
possess these powers jointly or separately, Applt’s Br. 30
(quoting Crossing Agreement § II(a)); Crossing Agreement,
§ X. Those powers were granted to the Crossing Authority,
which is a Canadian entity not subject to the Urban
Cooperation Act’s requirement for Michigan agencies.
Crossing Agreement §§ II(a), V, X.
Additionally, two Michigan statutes referenced by the
Company as prohibiting execution of the Crossing Agreement
— 2011 Mich. Pub. Acts 63 § 384(1) and 2012 Mich. Pub. Acts
236 § 402(1) — involve appropriations for the Michigan
Department of Transportation and Strategic Fund and the
Company fails to show how they alter the authorization
provided by the Urban Cooperation Act. Moreover, Michigan
State legislative records indicate the legislature’s concern was
that Michigan not bear the costs of the new bridge, see 2013
Mich. Pub. Acts 59 § 384; 2014 Mich. Pub. Acts 252 §§ 384-
85; 2015 Mich. Pub. Acts 84 §§ 384-85, and the Crossing
Agreement calls for Canada to bear the costs of construction
and maintenance, see Crossing Agreement §§ V(1), X(6),
X(11), thus addressing the legislature’s concern.
Because the Secretary did not clearly err in approving the
Crossing Agreement, the district court properly granted federal
appellees summary judgment on Count 7. This court, however,
10
need not decide whether the district court’s basis for granting
summary judgment — that the State of Michigan was an
indispensable party under Federal Rule of Civil Procedure 19
— was correct. The Company may, of course, pursue its
challenge to the Crossing Agreement in state court.
2. On the dismissal of Counts 2 and 3, the Company
contends approval of the Crossing Agreement was unlawful
because it contradicted federal laws supporting the Twin Span
project by making it “economically impossible” for the
Company to build the Twin Span. Applt’s Br. 60. The
Company points to its undisputed right to “maintain[] and
operate” the Ambassador Bridge, Act of Mar. 4, 1921, 41 Stat.
1439, which it points out Congress has reaffirmed on several
occasions, Applt’s Br. 59 (citing Act of Apr. 17, 1924, 43 Stat.
103; Act of Mar. 3, 1925, 43 Stat. 1128; Act of May 13, 1926,
44 Stat. 535). The Company emphasizes that the 1972 Report
of the House Committee on Foreign Affairs states that the IBA
legislation “should not be construed to adversely affect the
rights of those operating bridges previously authorized by the
Congress to repair, replace, or enlarge existing bridges,” H.R.
REP. NO. 92-1303 at 3-4 (Aug. 3, 1972), understanding this to
mean that its “perpetual right to operate the Ambassador
Bridge includes the right to build the Twin Span,” Applt’s Br.
59. The Company also emphasizes that between 1998 and
2008, Congress appropriated “hundreds of millions of dollars
for the Ambassador Bridge Gateway Project.” Id. at 60; see
Third Am. Compl. ¶ 132. The Report of the House Committee
on Appropriations explained that the Project was to
“accommodate . . . and protect plans . . . [for] a second span of
the Ambassador Bridge.” H.R. REP. NO. 107-722 at 101
(2002); see Third Am. Compl. ¶ 143. The Company draws the
conclusion that these congressional actions necessarily
evidence support for the profitable operation of the
Ambassador Bridge, otherwise there would be no reason to
11
expend federal funds. See Applt’s Br. 60-61. Approving the
new bridge, the Company maintains, makes it economically
impossible to build the Twin Span and thereby thwarts the will
of Congress. Id.
Approval of the Crossing Agreement does not violate any
rights Congress conferred on the Company and its predecessors
in ownership of the Ambassador Bridge by the 1921 Act and
subsequent appropriation acts for the Twin Span. The district
court therefore properly dismissed Counts 2 and 3 of the
complaint seeking declaratory and injunctive relief. Although
Congress has authorized the private maintenance and operation
of the Ambassador Bridge and funded aspects of the Twin Span
project from federal funds, its enactments do not vest in the
Company public rights beyond those that Congress specified.
In Charles River Bridge v. Warren Bridge, 36 U.S. 420, 421
(1837), the Supreme Court rejected the notion of implied public
rights. In that case, a private company filed suit to prevent the
construction of a second bridge over the Charles River because,
it maintained, the second bridge impermissibly “destroy[ed]
the value” of its bridge. Id. at 422. The Court affirmed denial
of the requested injunction, reasoning that in authorizing the
company to operate its bridge, the Massachusetts legislature
had not specified a right to exclusivity and “[i]n grants by the
public, nothing passes by implication.” Id. at 421-423, 553
(citing Jackson v. Lamphire, 28 U.S. 280, 287 (1830)).
The Company, too, seeks the benefit of an implied right.
But it has pointed to nothing to show that Congress intended
the Ambassador Bridge to be perpetually profitable for its
owners. Contra Applt’s Br. 61. Failing to find an explicit
statement in statutory text, the Company turns to legislative
history. Even assuming such history could support a claim to
an exclusive franchise, the Company overreads that history.
For instance, the 1972 House Committee Report stated that the
12
IBA should not “adversely affect” bridge owners’ rights to
“repair, replace, or enlarge existing bridges,” H.R. REP. NO. 92-
1303 at 3-4 (Aug. 3, 1972), but neither implies an exclusive
right to span the Detroit River nor mentions any right to
maintain and operate the Ambassador Bridge profitably.
Similarly, the 2002 House Committee Report stated that the
funds appropriated by Congress should be used to “protect
plans” for the Twin Span, not to protect profitable operation of
the Ambassador Bridge, much less to do so in perpetuity. H.R.
REP. NO. 107-722 at 101 (2002). Even if Congress could be
deemed to have assumed its actions would help to ensure
maintenance of a viable river crossing, the Company has not
shown Congress granted it an express right to operate the
Ambassador Bridge profitably, and such a right cannot be
implied from the statutory text or legislative history.
3. The Company challenges the dismissal of its non-
delegation claim, Count 1, regarding the delegation in Section
3 of the IBA to the Secretary of State, on the ground that
Congress provided no intelligible principle to apply. In its
view, the delegation was unconstitutional because the statute
itself did not provide an intelligible principle to guide the
exercise of the Secretary’s discretion. See Applt’s Br. 42. But,
as the government suggests, this is inconsistent with Supreme
Court instruction and this court’s precedent; that is, the
intelligible principle here derives from the narrow context of
the IBA on international bridges and agreements with foreign
nations, combined with the delegation of authority to the
Secretary of State. See Appellee’s Br. 21-23.
The Supreme Court has instructed that “the degree of
agency discretion that is acceptable varies according to the
scope of the power congressionally conferred.” Whitman v.
Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001). “Congress —
in giving the Executive authority over matters of foreign affairs
13
— must of necessity paint with a brush broader than that it
customarily wields in domestic areas.” Zemel v. Rusk, 381 U.S.
1, 17 (1965). The Company relies on the statement in
Whitman, 531 U.S. at 472, that Congress must “lay down by
legislative act an intelligible principle.” (internal quotation
marks and citation omitted). But the Supreme Court has
explained that the delegation “need not be tested in isolation”
and “derive[s] much meaningful content from the purpose of
the Act, its factual background and the statutory context in
which [it] appear[s].” Am. Power & Light Co. v. SEC, 329 U.S.
90, 104 (1946).
Applying these principles, this court has held that a
delegation authorizing the Secretary of the Interior, who has a
trust obligation with respect to Indians, see Match-E-Be-Nash-
She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S.
209, 211 (2012), “‘to acquire real property for the [Pokagon
Indian] Band,’” TOMAC v. Norton, 433 F.3d 852, 866 (D.C.
Cir. 2006) (quoting 25 U.S.C. § 1300j-5), was not
unconstitutional because it was “cabined by ‘intelligible
principles’ delineating both the area in and the purpose for
which the land should be purchased,” id. at 867. Here too, the
Secretary’s authority is limited by an “area” — navigable
waters between the U.S. and Canada or Mexico — and a
“purpose” — the construction of international bridges. Thus,
the intelligible principle is that in view of the Secretary’s
mission relating to foreign affairs, see Zemel, 381 U.S. at 17,
the Secretary will review international bridge agreements for
their potential impact on United States foreign policy, see
TOMAC, 433 F.3d at 866-67.
The Company’s reliance on Panama Refining Co. v. Ryan,
293 U.S. 388 (1935), is misplaced. In that case, the Supreme
Court held a delegation was unconstitutional because the
statute delegated to the President “unlimited authority” to
14
prohibit interstate and foreign commerce of petroleum and
petroleum products, and the statute or its context “contain[ed]
nothing as to the circumstances or conditions” in which the
power should be exercised. Id. at 415-17. Here, the IBA
supplies the narrow circumstance of international bridge
agreements with Canada and Mexico. See 33 U.S.C. § 535a,
supra note 2.
B.
Under IBA Section 4, no international bridge may be
constructed without Presidential approval. 33 U.S.C. § 535b.3
By Executive Order in 1968, as amended in 2004, the President
authorized the Secretary of State to issue permits approving
bridges under Section 4 unless there is disagreement among
consulted agencies, in which event the matter is returned to the
President “for consideration and a final decision.” Exec. Order
13,337, 69 Fed. Reg. 25,299, § 1(g)-(i). Challenging the
dismissal of Count 6, the Company acknowledges that
Presidential action is not subject to judicial review under the
Administrative Procedure Act (“APA”), 5 U.S.C. § 704.
3
Section 4 provides:
No bridge may be constructed, maintained, and
operated as provided in section 535 of this title unless the
President has given his approval thereto. In the course of
determining whether to grant such approval, the President
shall secure the advice and recommendations of (1) the
United States section of the International Boundary and
Water Commission, United States and Mexico, in the case
of a bridge connecting the United States and Mexico, and
(2) the heads of such departments and agencies of the
Federal Government as he deems appropriate to determine
the necessity for such bridge.
33 U.S.C. § 535b.
15
Applt’s Br. 51-52 (citing Franklin v. Massachusetts, 505 U.S.
788, 800-01 (1992)). Rather, it maintains that the issuance of
a Presidential Permit by the Secretary of State is final agency
action, regardless of whether this authority was delegated by
the President, and thus it is reviewable pursuant to the APA.
But even if the Presidential Permit issuance were agency
action, it is unreviewable under the APA because it is
“committed to agency discretion by law,” 5 U.S.C. § 701(a)(2).
The 1968 Executive Order on Presidential Permits stated
that “the proper conduct of the foreign relations of the United
States requires that executive permission be obtained for the
construction and maintenance at the borders of the United
States of facilities connecting the United States with a foreign
country.” Exec. Order 11,423, 33 Fed. Reg. 11,741, pmble.
(emphasis added). The 2004 Executive Order affirmed that the
Secretary should issue a Presidential Permit if doing so “would
serve the national interest.” Exec. Order 13,337, 69 Fed. Reg.
25,299, § 1(g); see Exec. Order 11,423, 33 Fed. Reg. 11,741,
§ 1(d). In the foreign affairs arena, the court lacks a standard
to review the agency action. As the court explained in Dist.
No. 1, Pac. Coast Dist., Marine Engineers’ Beneficial Ass’n v.
Marine Admin., et al., 215 F.3d 37, 42 (D.C. Cir. 2000),
generally “judgments on questions of foreign policy and
national interest . . . are not subjects fit for judicial
involvement.” “By long-standing tradition, courts have been
wary of second-guessing executive branch decision[s]
involving complicated foreign policy matters.” Legal
Assistance for Vietnamese Asylum Seekers v. Dep’t of State,
Bureau of Consular Affairs, 104 F.3d 1349, 1353 (D.C. Cir.
1997).
The Company offers no persuasive argument for adopting
a different approach with respect to issuance of the Section 4
Presidential Permit here. Its reliance on Dickson v. Sec’y of
16
Def., 68 F.3d 1396 (D.C. Cir. 1995), and Marshall Cnty. Health
Care Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993), is
misplaced. The issue in those cases arose in the context of
military discharge classifications and Medicare
reimbursement, respectively. By contrast, the context
surrounding issuance of a Section 4 Presidential Permit under
the IBA involves a determination rife with executive discretion
in an area that the U.S. Constitution principally vests in the
political branches. See e.g., Schneider v. Kissinger, 412 F.3d
190, 194 (D.C. Cir. 2005). Because the challenged issuance is
not subject to judicial review, the court need not decide
whether the issuance is presidential action under Franklin, 505
U.S. 788.
Accordingly, we affirm the judgment of the district court
dismissing Counts 1, 2, 3, and 6, and granting summary
judgment on Count 7.