1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-28-1994

Dia Navigation Company, Ltd v. Pomeroy, et al.

Precedential or Non-Precedential:

Docket 93-5538

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Recommended Citation

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 93-5538 

 

DIA NAVIGATION COMPANY, LIMITED 

 

 Appellant 

v. 

JAMES POMEROY, DISTRICT DIRECTOR IMMIGRATION 

AND NATURALIZATION SERVICE; CHRIS SALE, 

COMMISSIONER IMMIGRATION AND NATURALIZATION SERVICE; 

JANET RENO, ATTORNEY GENERAL DEPARTMENT OF JUSTICE 

 

 

On Appeal From the United States District Court 

For the District of New Jersey 

(D.C. Civil Action No. 93-cv-01366) 

 

Argued: March 24, 1994 

 Before: HUTCHINSON, ROTH and ROSENN, Circuit Judges

(Opinion Filed June 28, 1994) 

 

Stephen H. Vengrow, Esquire 

Joseph F. DeMay, Jr., Esquire (Argued) 

Cichanowicz, Callan & Keane 

21 West Street, 26th Floor 

New York, NY 10006-2908 

 Attorney for Appellant 

Faith S. Hochberg 

United States Attorney 
2 

James B. Clark, III, 

Assistant United States Attorney 

970 Broad Street, Room 502 

Newark, NJ 07102 

Frank W. Hunger 

Assistant Attorney General 

Mark C. Walters 

Assistant Director 

Alexander H. Shapiro, Esquire (Argued) 

Office of Immigration Litigation 

U.S. Department of Justice 

Ben Franklin Station 

P.O. Box 878 

Washington, D.C 20044 

 Attorneys for Appellees 

 

 

OPINION OF THE COURT 

 

ROTH, Circuit Judge: 

 In this case, we are asked to examine the Immigration 

and Naturalization Service's ("INS") policy of placing upon 

common carriers the burden of detaining stowaways who have 

applied for asylum in the United States. In brief, we conclude 

that the provisions of the Immigration and Naturalization Act 

("INA") lack the requisite clarity which would justify the policy 

as it presently has been established. In light of the statutory 

ambiguity and of the characteristics of the INS policy, we 

believe that the policy constitutes a legislative rule which 

could only have been promulgated pursuant to the notice and 

comment provisions of the Administrative Procedure Act ("APA"). 

For this reason, we conclude that the District Court improperly 
3 

dismissed the appellant's complaint under Fed.R.Civ.P. 12(b)(6). 

We further find that the district court improperly denied 

appellant's motion for summary judgment insofar as it sought a 

judgment declaring that the INS policy on detention of stowaways 

who have applied for asylum is invalid for failure to comply with 

the notice and comment procedures of the APA. We do find, 

however, that the district court properly dismissed appellant's 

other claims, including its claim for reimbursement of the 

expenses it incurred in detaining the stowaways involved in this 

case.1 We will, therefore, reverse in part and affirm in part 

the order of the district court and we will remand this case to 

the district court to enter judgment in favor of appellant 

consistent with this opinion. 

I. 

 Appellant Dia Navigation Company, Ltd., ("Dia") is a 

Cyprus corporation which owns the M/V European Senator 

("Senator"), an ocean carrier which transports commercial cargo 

between the United States and Europe. On February 13, 1993, four 

Romanian stowaways were found aboard the Senator while it was en 

route from Le Havre, France, to the Port of Newark, New Jersey. 

The stowaways were presented to and interviewed by an INS 

inspection officer upon arrival in Newark on February 21, 1992. 

None of the four Romanians had proper identification for entry 

into the United States. The INS officer verified that they were 

 

1Because the stowaways involved in this case have now either been 

deported or granted asylum, we do not reach appellant's claim for 

injunctive relief. 
4 

in fact stowaways, which meant that they were subject to 

deportation without an exclusion hearing. However, each of the 

stowaways requested political asylum. 

 Under existing INS policy, the carrier on which a 

stowaway arrives must pay the expenses of detaining him for as 

long as it takes the INS to process his asylum claim. 

Accordingly, the INS officer presented the ship's master with a 

Form I-259 "Notice to Detain, Deport, Remove or Present Aliens." 

The form provided that "[p]ursuant to the provisions of the 

Immigration and Nationality Act, and the Regulations issued by 

the Attorney General thereunder," App. at 25, the aliens were to 

be detained on board the ship. A notation on the form read: 

"CARRIER IS RESPONSIBLE FOR THE DETENTION[,] TRANSPORTATION AND 

WELFARE OF THE ALIEN UNTIL OTHERWISE INSTRUCTED BY USINS." Id. 

The form was presumably accompanied by some indication by the 

officer that Dia could detain the stowaways off the ship pending 

the processing of their asylum claims. 

 Dia complied with INS's orders, housing the stowaways 

in two rooms at the Staten Island Holiday Inn and hiring armed 

guards to maintain one guard per stowaway around the clock.2

During the detention, one of the detainees began a hunger strike 

and threatened to commit suicide. To prevent this, the guards 

placed him in a separate room and put him in leg irons. Faced 

 

2According to Dia, if it had refused to assume the detention 

costs, the Senator would have been prevented from entry into or 

departure from the Port of Newark. 
5 

with this situation, Dia requested that INS assume custody of 

this detainee; INS refused to do so. 

 Furthermore, because INS would not convene a hearing on 

the asylum claims until it had received completed asylum 

applications, Dia had to hire a Romanian interpreter to help with 

preparation of the forms and to assist at the asylum hearings. 

Ultimately two of the stowaways' asylum requests were granted; 

the other stowaways were flown back to Romania at Dia's expense.3 

In the end, the Romanians were detained for a total of 54 days. 

Dia claims to have incurred $127,580 in detention-related 

expenses. 

 At this point we pause to note that the processing of 

asylum applications often takes a considerable amount of time. 

Indeed, the proceedings in this case appear to have been 

relatively speedy. Dia cites a General Accounting Office report 

which indicates that in the period from 1986 to 1989 the average 

amount of time required to process an asylum application ranged 

from 5.8 months in San Francisco to 31.2 months in Chicago. 

General Accounting Office, Report to Congress: Immigration 

Management 49 (1991). Moreover, our attention has been directed 

to no set standards, in the form of regulations or otherwise, 

concerning the conditions under which such aliens are detained. 

Instead, INS apparently claims the discretion to order whatever 

measures and impose whatever conditions of detention it deems 

appropriate. In a hearing before the district court, counsel for 

 

3Dia does not contest having been required to pay the return 

travel expenses of the deported stowaways. 
6 

INS claimed that INS could require carriers to detain stowaways 

for any period of time, without limitation. App. at 131-34, 136-

38. In response to this assertion, the district court judge 

inquired: "You can have [an INS officer] who has a bad day and 

says, I want two guards on this guy 24 hours a day, I want him 

put in the Plaza, I want him given gourmet meals, and you're 

telling me that th[e] vessel owner can't say a thing about that, 

right?" Counsel for the INS simply responded, "Yes." App. at 

165. 

 On March 30, 1993, Dia filed suit under 28 U.S.C. §2201 

seeking 1) a declaratory judgment that the INS policy requiring 

an ocean carrier to both detain stowaways who have applied for 

political asylum and be responsible for those stowaways' 

attendant detention costs and expenses was unlawful and void and 

2) an injunction to prohibit the INS from enforcing or attempting 

to enforce the policy. Dia contended that the INS violated the 

INA, including the User Fee provisions, the APA, and the INS's 

own regulations. Dia further claimed a right under the APA and 

the Tucker Act to reimbursement of the expenses it had incurred 

in detaining the aliens as well as for its related expenses. 

 Defendants filed their answer to the complaint on May 

14, 1993. On May 28, 1993, the government filed a motion to 

dismiss under Fed.R.Civ.P. 12(b)(6), and Dia filed a motion for 

summary judgment. On August 11, 1993, the district court granted 

the government's motion, construing it as a motion for summary 

judgment, and dismissed the complaint. This appeal followed. 
7 

 Dia advances a number of arguments on appeal. It 

contends first that the INA by its terms requires the INS to bear 

the costs of detaining stowaways who apply for asylum and that 

this court need not defer to the INS's interpretation of the 

statute. Dia next asserts that the INS policy violates the INS's 

own regulations and that the INS's action in this case was 

arbitrary and capricious. Dia's final attack on the INS policy, 

and the one with which we agree, is that the policy should have 

been promulgated pursuant to notice and comment rulemaking. Dia 

also argues that the district court improperly dismissed its 

claims for monetary relief. 

II. 

 The district court had jurisdiction over this case 

pursuant to 5 U.S.C. § 702, 8 U.S.C. § 1329, and 28 U.S.C. §1331. 

We have jurisdiction over Dia's timely appeal of the final 

decision of the district court pursuant to 28 U.S.C. § 1291. Our 

decision not to consider Dia's claim for injunctive relief, see 

supra note 1, does not render this appeal moot. We must consider 

the relevant statutory provisions and their interpretation by INS 

in addressing Dia's claims for monetary relief. See 13A Charles 

A. Wright et al., Federal Practice and Procedure § 3533.8 at 378 

(1984). Moreover, to the extent that the claims for damages may 

not support the depth of our analysis, we believe that this case 

is among those "capable of repetition, yet evading review." In 

such cases a finding of mootness is avoided by a determination 

that the complaining party may reasonably expect to be subject to 

the challenged activity in the future and that the challenged 
8 

activity is by its nature so short in duration that its validity 

could not be fully adjudicated prior to its cessation or 

termination. See Reich v. Local 30, Int'l Brotherhood of 

Teamsters, 6 F.3d 978, 984 (3d Cir. 1993). See also United 

States v. Simone, 14 F.3d 833, 836-37 (3d Cir. 1994); Clark v. 

Brewer, 776 F.2d 226, 229 (8th Cir. 1985); Finberg v. Sullivan, 

634 F.2d 50, 55 (3d Cir. 1980) (in banc). Both factors are 

present here. The international nature of Dia's business makes 

it quite possible that it will be confronted with the problem of 

stowaways in the future. And the amount of time required to 

process asylum applications, while lengthy, is typically less 

than would be necessary to adjudicate the validity of the INS 

policy. Cf. ITT Rayonier v. United States, 651 F.2d 343, 346 

(5th Cir. Unit B July 1981) ("We would be most reluctant to 

permit a federal agency to so arrange its timetables that the 

scope of its authority would continue to elude judicial 

scrutiny."). 

 Because this case concerns the district court's grant 

of summary judgment, we have plenary review. E.g., Erie 

Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d 

Cir. 1988). 

III. 

 Under the INA, all aliens arriving in the United States 

are subject to examination and inspection by an INS inspector 

whose duty it is to determine whether they are permitted to enter 

the country. See 8 U.S.C. §§ 1224-25; 8 C.F.R. § 235.3. If an 

alien does not appear to be someone clearly entitled to enter--
9 

that is, if the INS inspector suspects that the alien is an 

"excludable" alien--he is subject to an exclusion hearing to 

determine whether he is eligible to remain. "Excludable" aliens 

are defined in 8 U.S.C. § 1182(a). Stowaways are expressly 

included in the category of "excludable" aliens. 8 U.S.C. 

§1182(a)(6)(D). 

 In addition to being excludable aliens, stowaways are 

generally viewed as a disfavored category. E.g., Yiu Sing Chun 

v. Sava, 708 F.2d 869, 875 n.21 (2d Cir. 1983). One consequence 

of this is that, in contrast to other excludable aliens, 

stowaways are automatically subject to deportation and have no 

right to a hearing to determine their status. The INA provides: 

The provisions of section 1225 of this title 

for detention of aliens for examination 

before special inquiry officers and the right 

of appeal provided for in section 1226 of 

this title shall not apply to aliens who 

arrive as stowaways and no such alien shall 

be permitted to land in the United States, 

except temporarily for medical treatment, or 

pursuant to such regulations as the Attorney 

General may prescribe for the ultimate 

departure or removal or deportation of such 

alien from the United States. 

8 U.S.C. § 1323(d). Under this provision stowaways who do not 

seek political asylum are subject to immediate deportation, and 

under 8 U.S.C. § 1227(a)(1) the carriers on whose vessel or plane 

they arrived are responsible for returning them to the place from 

whence they came, as well as for the costs of any detention for 

the period between the issuance of the deportation/exclusion 

order and the actual departure of the stowaways. 
10 

 This case presents us with the question of whether and 

to what extent INS may place on carriers the additional burden of 

detaining and maintaining asylum-seeking stowaways during the 

period in which their asylum applications are pending. The 

statutory scheme by its express terms only contemplates placing 

on carriers the cost of detaining stowaways who are subject to 

immediate deportation. Asylum seekers cannot, however, be 

deported pending a decision on their asylum application, 8 U.S.C. 

§ 1105a. A fortiori an asylum-seeking stowaway is not subject to 

"immediate deportation" while the asylum application is under 

consideration. Yet the INS has taken the position that it has 

the authority to parole stowaways who have applied for asylum 

into the custody of carriers, 8 C.F.R. § 253.1(f)(3), and that 

carriers may be held liable for the costs of detention and 

related services during this period. See Legal Opinion of INS 

Acting General Counsel (January 11, 1991). Moreover, as noted 

above, INS apparently reserves the right to impose whatever 

conditions on detention it deems appropriate. Of these three 

rules, only the first, 8 C.F.R. § 253.1(f)(3), was adopted 

pursuant to the notice and comment provisions of the APA. 

 Prior to 1986, INS made carriers responsible for the 

detention of all excludable aliens, arriving on their planes or 

vessels, as well as for related costs. See 8 C.F.R. §§ 233.1, 

235.3 (1986). In imposing this requirement, INS relied on the 

provisions of 8 U.S.C. § 1223. That section provided in part: 

Whenever a temporary removal of aliens is 

made under this section, the vessels or 

aircraft or transportation lines which 
11 

brought them, and the masters, commanding 

officers, owners, agents, and consignees of 

the vessel, aircraft, or transportation line 

upon which they arrived shall pay all 

expenses of such removal to a designated 

place for examination and inspection or other 

place of detention and all expenses arising 

during subsequent detention, pending a 

decision on the aliens' eligibility to enter 

the United States and until they are either 

allowed to land or returned to the care of 

the transportation line or to the vessel or 

aircraft which brought them. 

8 U.S.C. § 1223 (repealed Oct. 18, 1986, 100 Stat. 1783-56). 

 Congress began to express concern about this state of 

affairs as early as 1985. In that year the House Appropriations 

Committee noted its apprehension 

about the policy of the Immigration and 

Naturalization Service which requires 

scheduled passenger airlines to assume 

custody and financial responsibility for 

aliens who arrive by plane in the United 

States without proper documentation. The 

Committee understands that in the absence of 

Government detention facilities, air carriers 

must detain such aliens in custody and in all 

cases pay for their food and shelter. The 

Committee believes this policy raises 

significant questions about the equity and 

legal propriety of requiring private entities 

to assume the financial burdens of 

maintaining and, at times, exercising 

physical custody over excluded aliens for 

extended periods of time. Specifically, the 

Committee is concerned about the possible 

ramifications of detention of aliens by 

airline personnel or their agents who are 

not, of course, law enforcement officials. 

H.R. Rep. No. 197, 99th Cong., 1st Sess., at 38 (1985). 

Accordingly, the Committee requested that the INS Commissioner 

submit a report concerning the policy, which was to include a 

discussion of 
12 

the effect of a change in policy which would 

require the Immigration and Naturalization 

Service to assume all custodial 

responsibility when the transporting air 

carrier has demonstrated a good faith effort 

to detect inadmissibility prior to boarding. 

Id. 

 The Committee reiterated these concerns the following 

year. It expressed 

strong support for a change in policy which 

would require the INS to assume, in all 

cases, all custodial responsibility and 

financial responsibility when the 

transporting air carriers have demonstrated a 

good faith effort to detect inadmissibility 

prior to boarding the aircraft. 

H.R. Rep. No. 669, 99th Cong., 2d Sess., at 35 (1986). 

 In 1986, Congress repealed § 1223 and enacted the User 

Fee Statute. Consistent with the congressional concerns outlined 

above, one of the new statute's primary functions was to reverse 

the existing rule, requiring carriers to bear the expenses of 

detaining aliens pending hearings on their immigration status. 

The Conference Report, accompanying the bill, described the 

relevant provision as follows: 

Provides language proposed by the Senate 

which would release scheduled passenger 

airlines and vessels from the responsibility 

to assume custody or financial responsibility 

for aliens who arrive by plane or commercial 

vessel in the U.S. without proper 

documentation. The House bill contained no 

provision on this matter. 

H.R. Rep. No. 1005, 99th Cong., 2d Sess., at 421 (1986). The 

statute created a User Fee Account, financed by a five dollar 

surcharge on the tickets of international passengers and by civil 

fines collected by INS. The money from the account is to be used 
13 

to refund the Attorney General "for expenses incurred by the 

Attorney General in ... providing detention and deportation 

services for excludable aliens arriving on commercial aircraft 

and vessels." 8 U.S.C. § 1356(h)(2)(A)(v) (emphasis added). 

Neither the statute nor its legislative history suggest any 

distinctions between the various categories of "excludable" 

aliens for purposes of this reallocation of the burdens of 

detention. 

 As noted above, INS has promulgated a rule, pursuant to 

notice and comment, in which, despite the User Fee Statute, it 

has interpreted the INA to authorize it, as one option, to parole 

stowaways who have requested asylum into the custody of the 

carrier. "Pending adjudication of the application by the Asylum 

Officer, the applicant may be detained by the [INS], or paroled 

into the custody of the ship's agent or otherwise paroled in 

accordance with § 212.5 of this chapter ... ." 8 C.F.R. 

§253.1(f)(3). As the following discussion of the statute will 

reveal, this is a permissible reading of the INA to which we must 

defer under the doctrine of Chevron, U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 

L.Ed.2d 694 (1984). Thus we are concerned here only with the 

question of responsibility for the costs of detention and its 

incidents4 and the related issue of the lack of any standards 

governing detention by carriers. 

 

4The question of who bears responsibility for the costs of 

detention is distinct from the question of who is responsible for 

taking custody of stowaways. For example, on at least two 

occasions INS has taken stowaways into its custody without 
14 

 Dia argues that, under the User Fee Statute, INS is 

required to pay for the detention expenses of stowaways who 

request asylum. It relies primarily on the fact that stowaways 

are expressly defined as "excludable" aliens in § 1182(a)(6)(D), 

as well as the User Fee Statute's unqualified reference to the 

Attorney General's bearing the costs of detention of excludable 

aliens. In support of this reading it points to the similarly 

unqualified language of the legislative history, which also 

suggests that Congress did not intend to distinguish between 

stowaways and other excludable aliens in shifting the costs of 

detention to INS. Dia acknowledges that stowaways who do not 

request asylum are subject to immediate deportation under 

§1323(d) and that under § 1227(a)(1) carriers are responsible for 

the costs of their deportation (including detention incident to 

deportation) but contends that because those that seek asylum are 

entitled to a hearing on that request INS should pay detention 

costs while the hearing is pending. 

 The government argues, and the district court found, 

that § 1323(d) makes stowaways a de facto class of "excluded" 

aliens. Although there is no explicit statutory basis for this 

categorization, the district court began its analysis by 

observing that stowaways are subject to immediate deportation 

with no hearing. It then looked to the language of § 1227(a)(1), 

which provides that "[a]ny alien ... arriving in the United 

 

relieving carriers from liability for the expense of doing so. 

See Legal Opinion of INS Acting General Counsel at 2 n.1, 6 

(January 11, 1991). And in this case Dia argues that INS should 

reimburse it for the costs incurred in detaining the stowaways. 
15 

States who is excluded under this chapter, shall be immediately 

deported ... unless the Attorney General, in an individual case, 

in his discretion, concludes that immediate deportation is not 

practicable or proper." From this analysis, the district court 

understood "excluded" as "a de facto category of aliens termed 

'excluded' aliens, meaning those aliens defined as excludable 

pursuant to 8 U.S.C. § 1182(1) and subject to immediate exclusion 

and deportation." Dia Navigation Co., Ltd. v. Reno, 831 F.Supp 

360, 367 (D.N.J. 1993). Under the district court's reading of 

the statute, once it is conclusively determined that a particular 

alien is a stowaway, because stowaways are not entitled to an 

exclusion hearing, the stowaway becomes a member of a class of 

"excludable" aliens and is therefore "excluded," having become 

subject to immediate exclusion and deportation. Id. If asylum 

is not granted, "the stowaway is again able to be deported." Id.

at 371. 

 Aliens who apply for asylum, however, cannot be 

deported until their applications have been processed and denied. 

8 U.S.C. § 1105a. The district court concluded that asylumseeking stowaways still fell within the reach of § 1227(a)(1) 

because of that section's provision relating to aliens whose 

deportation has been stayed at the discretion of the Attorney 

General. Under that reading of the statute, in an instance when 

the Attorney General exercises her discretion and determines that 

"immediate deportation is not practicable or proper": 

[t]he cost of the maintenance including 

detention expenses and expenses incident to 

detention of any such alien while he is being 
16 

detained shall be borne by the owner or 

owners of the vessel or aircraft on which he 

arrived ... . 

8 U.S.C. § 1227(a)(1). 

 Dia's response to this interpretation is that the 

deportation of stowaways who apply for asylum cannot be 

characterized as having been stayed at the discretion of the 

Attorney General. Instead, 8 U.S.C. § 1105a requires that 

deportation be stayed for all asylum applicants. Dia's reading 

seems correct, and it reveals a fundamental tension in the 

statutory framework. Sections 1227(a)(1) and 1323(d) require 

that stowaways be deported immediately unless the Attorney 

General in the exercise of her discretion determines otherwise, 

and § 1227(a)(1) places the burden of deportation, and any 

detention incident to deportation, on the carrier. Section 

1105a, however, provides that asylum applicants may not be 

deported until their applications have been processed, and this 

is not a matter of discretion. The statute nowhere addresses the 

question presented here -- the status of an asylum applicant, 

otherwise excluded, pending the processing of the asylum 

application. 

 Presumably the logic of the INS's position is that 

carriers are responsible for the detention of aliens once they 

become "excluded" without regard to what might happen after that 

point. However, this attempt to reconcile these statutes suffers 

from several flaws. As noted above, the language of § 1227(a)(1) 

seems to contemplate placing stowaways in the custody of carriers 

only for the short period between the issuance of their 
17 

deportation orders and their immediate deportation; its 

provisions do not encompass situations other than those in which 

deportation is to be "immediate" or more specifically the 

detention of stowaways who apply for asylum. The INS's reading 

of the statute also creates tension with INS regulations. 

Specifically, 8 C.F.R. § 253.1(f)(3) indicates that a stowaway 

"shall not be excluded or deported before a decision is rendered 

by the Asylum Officer on his asylum application." Furthermore, 

the backdrop for the present statutory scheme is the repeal of 

§1223, which clearly did place the burden of paying for detention 

on carriers, and a legislative history strongly evincing 

congressional desire to place responsibility for detention on 

INS. Yet INS relies on § 1227(a)(1), the "immediate deportation" 

provisions, as authority for placing the financial burden of 

detention in asylum-seeking stowaway cases on the carrier. See

Legal Opinion of INS Acting General Counsel (January 11, 1991). 

 Turning from the statutory language to the regulations 

we find a similar lack of clear answers. In response to the User 

Fee Act, INS adopted, pursuant to notice and comment, a rule that 

"addresses the change from carrier responsibility to INS 

responsibility for the custody and detention of excludable 

aliens." 53 Fed. Reg. 1791 (1988) (proposed rule). See also 54 

Fed. Reg. 100 (1989) (final rule) (characterizing the rule with 

substantially the same language). Aside from reiterating what 

the statutes make clear--that "[c]arriers become liable for 

detention and transportation expenses immediately upon the 

issuance of a deportation/exclusion order," 54 Fed. Reg. at 100--
18 

the rule does not address the situation with which we are 

currently faced. Indeed, in response to commenters' concerns 

about detention conditions INS noted that the rule "does not 

address details of specific alien detention conditions. The 

conditions under which aliens are held would be a matter for 

other proceedings." Id. at 101.5

 Dia points to a number of other regulatory provisions 

in support of its contention that the INS policy in this case 

contravenes INS regulations. Dia directs our attention to 8 

C.F.R. §§ 235.3(e) and 237, both of which indicate that 

"excluded" aliens are to be delivered to the appropriate carrier, 

which becomes responsible for the costs of detention from that 

point.6 In stating that rule, however, the regulation, like 8 

U.S.C. § 1227(a)(1), does not provide an answer to the question 

 

5The rule did set forth minimum criteria for INS detention at 

non-INS facilities. Id.; 8 C.F.R. § 235.3(f). As counsel 

agreed, however, those criteria do not apply to detention by 

carriers. 

6Section 235.3(e) states: 

[If i]n the opinion of the examining 

immigration officer, it is not practical to 

resolve a question of admissibility at the 

time of arrival of an alien passenger on a 

vessel or aircraft, the officer shall execute 

a Form I-259C to notify the agent, master, or 

commanding officer of the vessel or aircraft, 

if applicable, that the alien passenger may 

be excludable from the United States and in 

the event the alien is formally ordered 

excluded and deported, the carrier will be 

responsible for detention and transportation 

expenses to the last foreign port of 

embarkation as provided in § 237.5 of this 

chapter. 

8 C.F.R. § 235.3(e). 
19 

of whether carriers are responsible for the costs of detention 

pending the processing of an asylum application. 

 Dia further argues that under 8 C.F.R. § 235.3(d) the 

INS is responsible for the cost of detaining all aliens, except 

"Transit Without Visa" passengers. The relevant provisions are 

as follows: 

(b) Aliens with no documentation or false 

documentation. Any alien who appears to the 

inspecting officer to be inadmissible, and 

who arrives without documents ... or who 

arrives with documentation which appears on 

its face to be false, altered, or to relate 

to another person, or who arrives at a place 

other than a designated port of entry, shall 

be detained in accordance with section 235(b) 

[8 U.S.C. § 1225(b)] of the Act. ... 

(c) Aliens with documents. Any alien who 

appears to the inspecting officer to be 

inadmissible, but who does not fall within 

paragraph (b) of this section, may be 

detained, paroled, or paroled for deferred 

inspection by the inspecting officer. ... 

(d) Service custody. The Service will assume 

custody of any alien subject to detention 

under § 235.3 (b) or (c) of this section, 

except in the case of an alien who is 

presented as a Transit Without Visa (TWOV) 

passenger. 

8 C.F.R. § 235.3. 

 Dia points out that this section divides aliens into 

only two categories--those with documents and those without--and 

argues that stowaways clearly will be either one or the other. 

Thus, because the reference in subsection (d) is to "any alien," 

Dia contends that INS is violating its own regulations by not 

taking custody of stowaways who seek asylum. 
20 

 The government's response to this argument is that the 

statutory provision the rule implements concerns only the 

detention of those aliens "who may not appear to the examining 

immigration officer at the port of arrival to be clearly and 

beyond a doubt entitled to land [and] shall be detained for 

further inquiry to be conducted by a special inquiry officer." 8 

U.S.C. § 1225(b). In contrast to such aliens, stowaways are 

clearly not entitled to land. 8 U.S.C. § 1323(d). As such, they 

are not within the ambit of § 1225(b) or 8 C.F.R. § 235.3(b), and 

thus 8 C.F.R. § 235.3(d) does not apply. In addition, we note 

that the regulation by its terms concerns only responsibility for 

the custody of aliens. As we have explained above, the question 

of custody is distinct from that of financial responsibility and 

is already addressed by the regulations. 

 The inescapable conclusion of our analysis is that no 

clear answer emerges from the statutes and regulations. Congress 

clearly wished to shift the bulk of financial responsibility for 

detention to INS, but neither the statute nor the legislative 

history provide an indication of whether it wished to shift that 

burden with respect to stowaways who apply for asylum. The 

question, quite simply, was not answered. Similarly, the 

regulations evince no consideration of the issue except to the 

extent that INS has reserved the right to force carriers to take 

custody of such aliens. Moreover, neither the statutes nor the 

regulations address the conditions in which aliens are to be 

detained. Indeed, the INS at oral argument before us conceded 

that, even though the INS considers § 1227(a)(1) to make more 
21 

sense when read the government's way, i.e., holding the carrier 

responsible for detention, there's no need to read it that way. 

In light then of the statutory and regulatory language and of the 

INS's concession, we must determine whether INS's position 

regarding carrier responsibility was legitimately adopted. 

III. 

 The APA defines "rule" broadly to include: 

the whole or a part of an agency statement of 

general or particular applicability and 

future effect designed to implement, 

interpret, or prescribe law or policy or 

describing the organization, procedure, or 

practice requirements of an agency and 

includes the approval or prescription for the 

future of rates, wages, corporate or 

financial structures or reorganizations 

thereof, prices, facilities, appliances, 

services or allowances therefor or of 

valuations, costs, or accounting, or 

practices bearing on any of the foregoing. 

5 U.S.C. § 551(4). In light of this broad definition we think it 

plain that the INS policies at issue in this case constitute 

rules for purposes of the APA. 

 Under the APA, 

[g]eneral notice of proposed rulemaking shall 

be published in the Federal Register, unless 

persons subject thereto are named and either 

personally served or otherwise have actual 

notice thereof in accordance with the law. 

... Except when notice or hearing is 

required by statute, this subsection does not 

apply-- 

 (A) to interpretative 

rules, general statements of 

policy, or rules of agency 

organization, procedure, or 

practice ... . 

5 U.S.C. § 553(b). When an agency is required to give notice, it 

must then consider the comments of interested parties upon the 
22 

proposed rule, 5 U.S.C. § 553(c), and publish the final rule 

within thirty days of its effective date. 5 U.S.C. § 553(d). 

 The distinction between "substantive" or "legislative" 

rules and "interpretive" or "interpretative" rules has proven to 

be one incapable of being drawn with much analytical precision. 

Indeed, courts customarily begin recitations of the law on the 

subject with remarks such as the distinction is "fuzzy," National 

Family Planning and Reproductive Health Ass'n v. Sullivan, 979 

F.2d 227, 231 (D.C. Cir. 1992); "'enshrouded in considerable 

smog,'" La Casa Del Convaleciente v. Sullivan, 965 F.2d 1175, 

1177 (1st Cir. 1992) (quoting General Motors Corp. v. 

Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984)); or "'far from 

crystal clear.'" Metropolitan Sch. Dist. v. Davila, 969 F.2d 

485, 489 (7th Cir. 1992) (quoting Chemical Waste Management, Inc. 

v. EPA, 869 F.2d 1526, 1534 (D.C. Cir. 1989)), cert. denied, 113 

S.Ct. 1360, 122 L.Ed.2d 740 (1993). And the cases live up to 

this billing, setting forth tests that are often circular and 

usually somewhat Delphic. Nevertheless, certain principles 

emerge, and, while we are not able to capture their essence any 

more succinctly than our predecessors, we believe their 

application in this case is clear. 

 Our most recent statement of the law on this question 

appeared in FLRA v. Department of the Navy, 966 F.2d 747 (3d Cir. 

1992)(in banc). The critical difference between legislative and 

interpretative rules, we noted, is that the former "have the 

force and effect of law" while the latter do not. Id. at 762 

n.14. Stated differently, legislative rules have "substantive 
23 

legal effect," while interpretative rules typically involve 

construction or clarification of a statute or regulation. Id. 

See also Bailey v. Sullivan, 885 F.2d 52, 62 (3d Cir. 1989); 

United States v. Walter Dunlap & Sons, Inc., 800 F.2d 1232, 1238 

(3d Cir. 1986). "If a rule creates rights, assigns duties, or 

imposes obligations, the basic tenor of which is not already 

outlined in the law itself, then it is substantive." La Casa Del 

Convaleciente, 965 F.2d at 1178. Put yet another way, 

what distinguishes interpretative from 

legislative rules is the legal base upon 

which the rule rests. If the rule is based 

on specific statutory provisions, and its 

validity stands or falls on the correctness 

of the agency's interpretation of those 

provisions, it is an interpretative rule. If, 

however, the rule is based on an agency's 

power to exercise its judgment as to how best 

to implement a general statutory mandate, the 

rule is likely a legislative one. 

United Technologies Corp. v. EPA, 821 F.2d 714, 719-20 (D.C. Cir. 

1987). 

 Of course as applied to many rules, such statements are 

apt to amount to conclusions about the rule rather than 

principled bases on which to categorize them. Thus courts have 

inquired into the agency's perception of the rule. This inquiry 

concerns first the agency's characterization of the rule as 

legislative or interpretative. See, e.g., Davila, 969 F.2d at 

489; United Technologies, 821 F.2d at 718; Levesque v. Block, 723 

F.2d 175, 182 (1st Cir. 1983); Cerro Metal Prods. v. Marshall, 

620 F.2d 964, 981 (3d Cir. 1980). The more basic determination, 

however, involves whether "'if by its action the agency intends 

to create new law, rights or duties.'" United Technologies, 821 
24 

F.2d at 718 (quoting General Motors Corp. v. Ruckelshaus, 742 

F.2d 1561, 1565 (D.C. Cir. 1984) (en banc), cert. denied, 471 

U.S. 1074 (1985)). See also Daughters of Miriam Center for the 

Aged v. Mathews, 590 F.2d 1250, 1255 n.9 (3d Cir. 1978). Courts 

have also looked more broadly to "the impact that a given rule 

has on those to whom the rule applies." Ohio Dep't of Human 

Servs. v. HHS, 862 F.2d 1228, 1233 (6th Cir. 1988). While the 

substantial impact of a rule is relevant to its classification, 

however, such an impact will not, without more, compel a finding 

that a rule is legislative. Davila, 969 F.2d at 493; La Casa Del 

Convaleciente, 965 F.2d at 1178. 

 Recognizing that even consideration of all these 

factors will not always lead to a clear determination, we noted 

in FLRA v. Department of the Navy that it is often helpful to 

analyze a rule with an eye to the policies animating the APA's 

notice and comment requirement. FLRA v. Navy, 966 F.2d at 762 

n.14 (citing Batterton v. Marshall, 648 F.2d 694, 705 (D.C. Cir. 

1980)). As the D.C. Circuit noted in Batterton: "Analysis that 

improves upon semantic play must focus on the underlying purposes 

of the procedural requirements at issue. The essential purpose 

of according § 553 notice and comment opportunities is to 

reintroduce public participation and fairness to affected parties 

after governmental authority has been delegated to 

unrepresentative agencies." 648 F.2d at 703. See also Morton v. 

Ruiz, 415 U.S. 199, 232, 94 S.Ct. 1055, 1073 (1974) ("The 

Administrative Procedure Act was adopted to provide, inter alia, 

that administrative policies affecting individual rights and 
25 

obligations be promulgated pursuant to certain stated procedures 

so as to avoid the inherently arbitrary nature of unpublished ad 

hoc determinations."). 

 Consideration of these factors in the context of this 

case leads us to the conclusion that the INS rules here are 

legislative in nature. As our analysis in the preceding section 

reveals, the statute simply does not set out a standard 

concerning liability for the costs of detention in cases such as 

this. Any attempt to divine an answer leads only to the 

conclusion that there is tension if not outright inconsistency 

within the INA to the extent that it can be read as addressing 

the question. Moreover, there is no suggestion that the statute 

speaks at all to the conditions of detention. Yet, in the face 

of what is at best statutory ambiguity, INS has adopted rules 

holding carriers liable for unlimited costs of detention and 

imposing custody with no guidelines, or subject only to standards 

as determined by an INS officer on the scene. This is no less a 

legislative decision than would be the adoption of a detailed 

code concerning the limits and conditions of detention. 

 Our conclusion squares with those of other courts 

confronted with agency implementation of statutes that do not 

address the agency action at issue. "In the present case, 

'interpretation' could only go so far as to spot the dilemma 

posed by the statutory inconsistency, while legislative-type 

action was required to carry the agency the rest of the way ... 

." Citizens to Save Spencer County v. EPA, 600 F.2d 844, 879 

(D.C. Cir. 1979). See also National Family Planning, 979 F.2d at 
26 

237 (noting that filling in gaps and resolving inconsistencies in 

statutory scheme involves legislative rulemaking); Chamber of 

Commerce v. OSHA, 636 F.2d 464, 469 (D.C. Cir. 1980) ("It is 

clear to us that the [agency] has attempted through this 

regulation to supplement the [statute], not simply to construe 

it, and therefore the regulation must be treated as a legislative 

rule."). The INS has stretched the limits of the INA, without 

the benefit of input from the affected parties, and now contends 

that these parties are without power to challenge its actions. 

This plainly amounts to legislative rulemaking. 

 Our conviction is only strengthened when we consider 

the impact of the INS's rules. In this case Dia was forced to 

spend a considerable sum of money detaining the four stowaways 

under armed guard in a commercial hotel for 54 days--a period 

which appears to be considerably shorter than is normally needed 

to process asylum applications. Dia also had to assist the 

stowaways in the preparation of their applications, which 

included hiring an interpreter. Perhaps most significantly, Dia 

was forced to deal with a suicidal stowaway on a hunger strike, 

with the resulting use of leg irons. This was certainly a lessthan-ideal situation for both Dia and the stowaway, and perhaps 

for the other guests at the Holiday Inn, but the INS refused to 

assume custody. Episodes such as this appear to be what 

motivated Congress to enact the User Fee Statute and require the 

INS to take custody of aliens. 

 In sum, we hold that, if the INS wishes to impose on 

private carriers the costs of detaining stowaways who have 
27 

applied for asylum, it must do so pursuant to the notice and 

comment requirements of the APA. Moreover, because the decision 

to impose custody and/or the costs of detention on carriers 

necessarily involves some decision as to the extent and 

conditions of these obligations, the INS must adopt its rules, 

governing these issues and setting forth how questions concerning 

the extent and conditions of detention will be answered, pursuant 

to notice and comment. 

 Because the INS has not conformed with the requirements 

of the APA in establishing its policy on the costs and conditions 

of detention of asylum-seeking stowaways pending a decision on 

the asylum application, the district court erred in failing to 

grant that portion of Dia's motion for a declaratory judgment to 

that effect. 

IV. 

 We now turn briefly to Dia's claims for reimbursement 

of its expenses in detaining the stowaways. Dia argues that it 

is entitled to reimbursement under the APA and under the Tucker 

Act. We believe the district court correctly concluded that Dia 

may not recover its expenses under either of these statutes. 

 A. The APA

 Dia first claims that it is entitled to reimbursement 

under § 702 of the APA. That section provides in part: 

 A person suffering legal wrong because 

of agency action, or adversely affected or 

aggrieved by agency action within the meaning 

of a relevant statute, is entitled to 

judicial review thereof. An action in a 

court of the United States seeking relief 

other than money damages and stating a claim 
28 

that an agency or an officer or employee 

thereof acted or failed to act in an official 

capacity or under color of legal authority 

shall not be dismissed nor relief therein be 

denied on the ground that it is against the 

United States or that the United States is an 

indispensable party. 

5 U.S.C. § 702 (emphasis added). The district court found that 

the relief Dia seeks qualifies as money damages for purposes of 

this section, Dia, 831 F.Supp. at 378-80, and that as a result 

recovery is barred by the doctrine of sovereign immunity. Id. 

The government urges us to adopt this analysis. 

 In Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 

2722, 101 L.Ed.2d 749 (1988), the Supreme Court noted that "[t]he 

fact that a judicial remedy may require one party to pay money to 

another is not a sufficient reason to characterize the relief as 

'money damages.'" Id. at 893, 108 S.Ct. at 2732. In Bowen the 

state of Massachusetts sued the Secretary of Health and Human 

Services to enforce a provision of the Medicaid Act which 

required payment of certain amounts to the state for Medicaid 

services. The Court noted that Massachusetts' suit 

is not a suit seeking money in compensation

for the damage sustained by the failure of 

the Federal Government to pay as mandated; 

rather, it is a suit seeking to enforce the 

statutory mandate itself, which happens to be 

one for the payment of money. The fact that 

the mandate is one for the payment of money 

must not be confused with the question 

whether such payment, in these circumstances, 

is a payment of money as damages or as 

specific relief. 

Id. at 900-01, 108 S.Ct. at 2735. The Court concluded that 

"since the [district court's] orders are for specific relief 

(they undo the Secretary's refusal to reimburse the State) rather 
29 

than for money damages (they do not provide relief that 

substitutes for that which ought to have been done) they are 

within the District Court's jurisdiction under § 702's waiver of 

sovereign immunity." Id. at 910, 108 S.Ct. at 2740. 

 Following the Supreme Court's lead, this court has 

similarly determined that a monetary award can in some instances 

constitute equitable relief rather than money damages for 

purposes of § 702. See Zellous v. Broadhead Assocs., 906 F.2d 94 

(3d Cir. 1990). Other courts have reached the same conclusion. 

See, e.g., Esch v. Yeutter, 876 F.2d 976, 984 (D.C.Cir. 1989); 

Beverly Hospital v. Bowen, 872 F.2d 483, 487 (D.C.Cir. 1989). As 

the district court concluded, "all of these cases have concerned 

some form of statutory entitlement to monetary relief." Dia, 831 

F.Supp. at 378. The crucial distinction involves whether a 

claimant "'is seeking funds to which a statute allegedly entitles 

it, rather than money for the losses ... suffered by virtue of'" 

the agency's failure to do that which it was required to do. 

Bowen, 487 U.S. at 901, 108 S.Ct. at 2735 (quoting Maryland Dept. 

of Human Resources v. Department of Health and Human Services, 

763 F.2d 1441, 1446 (D.C.Cir. 1985)). 

 In this case the reimbursement Dia seeks falls squarely 

within the category of "money damages" as prior case law has 

defined that term. The INA simply does not speak to the question 

of responsibility for the costs of detention of stowaways who 

apply for asylum. Thus there is no statutory entitlement to 

these funds. Instead, Congress has explicitly given the INS the 

authority to promulgate regulations as it deems necessary in 
30 

implementing the INA. 8 U.S.C. § 1103. The entitlement to these 

costs, then, must originate from INS rather than from a court 

that lacks the requisite expertise and information to craft an 

appropriate standard. Indeed, were we to fashion a rule out of 

Congress' silence simply because Dia has alleged a statutory 

entitlement we would not only be usurping the role of the agency 

but also inviting parties to use § 702 to circumvent 

administrative agencies in favor of the courts. We cannot allow 

the identity of the decisionmaker to be determined by crafty 

lawyering. Cf. Bowen, 487 U.S. at 915-16, 108 S.Ct. at 2743 

(Scalia, J., dissenting). 

 As we view this case, the wrong that Dia has suffered 

is not the denial of money to which the INA entitles it, but 

rather the INS' failure to follow the appropriate procedures in 

implementing the INA. An award of money in these circumstances 

could only be characterized as a substitute for what ought to 

have been done, and therefore would constitute money damages. As 

such, Dia's claim is barred by the doctrine of sovereign 

immunity. 

 B. The Tucker Act

 The district court dismissed Dia's Tucker Act claim on 

the ground that it lacks substantive merit. Dia, 831 F.Supp. at 

380 n.40. We conclude that the district court correctly 

dismissed this claim, though we do not reach the merits of the 

claim because we hold that the district court lacked jurisdiction 

over it. 

 As our prior cases make clear: 
31 

Under the Tucker Act, the United States 

Claims Court and district courts share 

original jurisdiction over non-tort monetary 

claims against the United States not 

exceeding $10,000. 28 U.S.C. § 1346(a)(2) 

(sometimes referred to as the "Little Tucker 

Act"). Original jurisdiction over such 

claims seeking more than $10,000 vests 

exclusively in the Claims Court. 28 U.S.C. 

§1491 (the so-called "Big Tucker Act"). 

Chabal v. Reagan, 822 F.2d 349, 353 (3d Cir. 1987). See also

United States v. Hohri, 482 U.S. 64, 67 n.1, 107 S.Ct. 2246, 2249 

n.1, 96 L.Ed.2d 51 (1987); Livera v. First Nat'l State Bank of 

N.J., 879 F.2d 1186, 1195 (3d Cir.), cert. denied sub nom. Livera 

v. Small Business Admin., 493 U.S. 937, 110 S.Ct. 332, 107 

L.Ed.2d 322 (1989); Hahn v. United States, 757 F.2d 581, 585-86 

(3d Cir. 1985). 

 Dia asserts that the Claims Court's exclusive 

jurisdiction is overridden by the Supplemental Jurisdiction Act. 

28 U.S.C. § 1367. We reject this argument in light of the Tucker 

Act's explicit jurisdictional bar. See Pershing Div. of 

Donaldson, Lufkin & Jenrette Secs. Corp. v. United States, --F.3d 

---, 1994 WL 153956, *1-2 (7th Cir. 1994). Dia has alleged 

damages amounting to $127,580, far in excess of the maximum claim 

over which the district court could exercise its jurisdiction. 

The district court therefore properly dismissed this claim. 

V. 

 For the foregoing reasons, we will reverse the district 

court's order, dismissing Dia's complaint, and we will remand 

this case to the district court to award a declaratory judgment 

in favor of Dia on its claim that the INS policy on the costs and 
32 

conditions of detention of asylum-seeking stowaways is invalid 

for failure to comply with the notice and comment procedures of 

the APA. We will affirm the order of the district court insofar 

as it dismissed Dia's other claims, including its claim for 

monetary relief.