* Circuit Judge of the 2nd Circuit Court of Appeals, sitting by

designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-40610

WILLIAM J. BARAN, ET AL.,

Plaintiffs-Appellees,

v.

PORT OF BEAUMONT NAVIGATION DISTRICT

OF JEFFERSON COUNTY TEXAS, ET AL.,

Defendants-Appellants,

and

STATE OF TEXAS,

Intervenor-Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Texas

(June 21, 1995)

Before VAN GRAAFEILAND, * JOLLY and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Defendants-Appellants, the public Ports of Beaumont, Port

Arthur, and Orange ("Ports"), and Intervenor-Appellant the State of

Texas ("State"), (collectively "Appellants"), appeal a district2

court order granting summary judgment in favor of PlaintiffsAppellees the Sabine Pilots Association ("Pilots"), declaring that

the second sentence of Article 8267(C)(5) of the Texas Revised

Civil Statutes violates the Due Process Clause.

The Pilots filed suit against the Ports in federal district

court, complaining that Art. 8267(C)(5) violates both the Due

Process and Equal Protection clauses of the United States

Constitution. The second sentence of that article, which is

contained in the statutory framework for author izing and fixing

pilotage rates for the Sabine-Neches Waterway ("Waterway"),

essentially grants the Ports the power to veto the pilotage rates

for the Waterway as set by the Texas State Pilot Commission for the

Sabine Bar, Pass and Tributaries (the "Co mmission"). The Pilots

claim that this "veto provision" permits the Ports to veto the

pilotage rates at their own rate-approval proceedings after

opposing the proposed increases at the Commission hearings, thereby

denying the Pilots the right to a fair and impartial tribunal in

which to present their rate increase proposals. The Pilots also

i nsist that the authority of the Ports to veto any pilotage rate

increase effectively establishes a dual pilotage rate-making system

between the public and private ports in the Waterway, in violation

of the Equal Protection Clause. The private ports are not parties

to this appeal.

Concluding that the district court erred as a matter of law

in granting summary judgment in favor of the Pilots on th e due

process issue, we reverse and vacate that summary judgment and1 See T EX

. R EV

. C IV

. S TAT

. art. 8267(C)(1),(2),(3),(4), a n d

(6)(a) (West 1994). The commission is directed to consider the

effect that its decision to grant, deny, or modify rates will have

on the ports an d citizens living within the commission's

jurisdiction. T E X

. R EV

. C IV

. S TAT

. art. 8267(C)(6)(a) (West 1994).

2 T EX . R EV . C IV . S TAT . art. 8267(C)(5) (West 1994).

3 render summary judgment in favor of Appellants.

I

FACTS AND PROCEEDINGS

All ships entering and leaving Texas ports must hire pilots to

navigate the passages of the state's coas tal waterways between

those ports and t he Gulf of Mexico. Each waterway in Texas is

under the autho rity of its own pilot commission, which has

jurisdiction over all facets of pilotage on the waterway in

question, including the author ity to set the fee schedule for

pilots that navigate the passages into the waterway for the ships

that enter and leave the waterway's ports. Any party interested in

changing the pilotage rates for a waterway (pilots, consignees,

owners, or ports) may submit a written application to the cognizant

commission requesting a change in the fee schedule. To approve any

rate changes, however, that commission must act in compliance with

the statutory procedures, which require notice and hearings on the

proposal, and must consider the effect of new rates on all

legitimately interested parties. 1 Additionally, pursuant to

Article 8267(C)(5), "no increase of rates to either the public

ports

. . . shall ever be set, establ ished or granted unless the

[boards of the ports] so affected shall approve the same." 23 T EX . W ATER C ODE A NN . § 62.102 (West 1988).

4 T EXAS W ATER C ODE A NN . § 62.101 (West 1988).

4 The Ports are navigation districts created pursuant t o the

Texas constitution and acts of the state legislature. The Ports

operate in accordance with Chapters 60-62 of the Texas Water Code,

and are defined as "governmental agen cies and bodies politic and

corporate with the powers of government and with the authority to

exercise the rights, privileges, and functions which are essential

to the accomplishment of those purposes." 3 Generally, navigation

districts are given substantial powers over the improvement,

preservation, and conservation of inland and co astal waters and

other purposes incidental to the navigation of those waters. 4

In September 1992, the Pilots filed an application requesting

a pilotage rate increase with the Commission. In accordance with

the prescribed procedures, the Commission held public hearings on

the Pilots' p roposal. Representatives of the Ports attended the

Commission hearin gs as parties legitimately interested in - and

opposed to

- the proposed rate increase. Only the Port of

Beaumont, however, presented testimony at the hearing; and although

that port's " evidence" was deemed to be time-barred by the

Commission, Beaumont's materials were included in the reports

submitted by the West Gulf Maritime Association, anot her group

opposing the increase. The data from the Port of Beaumont

suppo rted the Ports' concern that the increased rates proposed

were too high and would adversely affect the Ports' competitive

positions.5

Despite strong opposition to the proposed rate increases, the

Commission approved the new rates, which went into effect at all

private ports on the Waterway in November 1992. The rate increases

did not go into effect at the Ports, however, as Art. 8267(C)(5)

establishes that no rate increase affecting public ports can ever

be set, established, or granted unless approved by th e ports

affected. In an effort to obtain such approval, the Pilots

presented their proposal to the Ports, which thereafter denied the

rate increases in their own proceedings.

After bringing suit against the Ports in federal court, the

Pilots filed a motion for a summary judgment declaring that the

veto permitted by Art. 8267(C)(5) violated the Due Process and

Equal Protection clauses. Important to this appeal is the Pilots'

claim that th e second sentence of Art. 8276(C)(5) permits an

"interested party" to adjudicate and veto pilotage rate

applications, thereby denying the Pilots' their right to a fair

hearing before an impartial tribunal.

The district court granted the Pilots' motion for summary

judgment, declaring that the veto sente nce does violate the Due

Process Claus e. In reaching this holding, the court determined

that the Ports have a pecuniary interest in the fl ow of vessels

through their ports that is affected by the pilot rates. As such,

the court determined that the Ports' interest, when combined with

the their veto power, denies the Pilots their right to a fair and

impartial tribunal. The court then proceeded to "sever" the second

s entence from Art. 8267(C)(5), declaring that the balance of the5 Walker v. Sears, Roebuck & Co.

, 853 F.2d 355, 358 (5th Cir.

1988).

6 Celotex Corp. v. Catrett , 477 U.S. 317, 323-25 (1986).

7 Walker , 853 F.2d at 358.

6 sta tute remained operable. Nevertheless, the court declined to

enforce the Commission-approved rate increase at the Ports, leaving

the "individua l ports with the state court recourse provided by

section 62.078 of the Texas Water Code." The court also declined

to address the Pilots' equal protection claim. The Ports timely

filed this appeal.

II

DISCUSSION

A. S TANDARD OF R EVIEW

We review a grant of summary judgment using the same standards

that gui de the district court. 5 Summary judgment is appropriate

when no issue of material fact exists and the movant is entitled to

judgment as a matter of law. 6 Q uestions of law are reviewed de

novo. 7

B. T HRESHOLD I SSUE : A BSTENTION

Appellant s argue on appeal that the district court erred in

not abstaining from exercising its jurisdiction in what Appellants

describe as an "on-going" state law dispute. If we were to

determine that abstention is appropriate in this instance, we would

not need to review the merits of the district court's grant of

summary judgment. Thus we first focus our attention on abstention.

The Por ts raised abstention as an affirmative defense in a8 The re the Appellants merely observed that notions of

federalism require the confinement of federal court intervention in

state judicial processes.

7 somewhat cursory manner in their answer to the Pilots' complaint.

In that answer the Ports asserted that abstention was appropriate

because the dispute against them was not a constitutional dispute,

arguing instead that the dispute was a local rate-making dispute

over pilotage fees. The Ports also argued that, as the statute was

fairly susceptible of an interpretation that would av oid the

constitutional ch allenge, the district court should abstain from

reaching the constitutional question until the Texas state courts

had had an opportunity to render a definitive interpretation of the

veto provision. The Ports' final argument in favor of abstention

by the district court was that the case presents complex and

significant issues of local policy that have been committed to the

State legislative and executive branches.

The State too urged the district court to abstain from

exercising its jurisdiction in this case. In its response to the

Pilots' motion for summary judgment the State observed that "when

the validity of a state statute or regulatory action is challenged

in federal court by plaintiffs who have not first asserted their

c omplaints in state court, the federal court should abstain from

deciding the constitutionality of the statute pending review by a

state tribunal." Even though the issue of abstention was raised

once more in Appellants' post-hearing brief, 8 we note that the

Ports did not rea ssert their abstention defense in responding to

the Pilots' motion for summary judg ment; neither did Appellants9 See

, e.g.

, Portis v. First Nat'l Bank of New Albany, Miss.

,

34 F.3d 325 (5th Cir. 1994) (noting that issue is presented to

trial court when party has raised it in pleadings or pretrial

order or if issue has been tried by consent of parties).

1 0 See

, e.g.

, American Bank and Trust Co. of Opelousas v. Dent

, 982 F.2d 917, 922 ( 5th Cir. 1993) (concluding that even if all

preconditions for abstention are present in case, decision to

abstain generally involves some exercise of discretion by district

court).

11 982 F.2d 917 (5th Cir. 1993).

8 argue the issue of abstention at the summary judgment hearing.

Although the notion of abstenti on was presented to the

district court, 9 it did not address the issue in its opinion. As

the decision whether to abstain is generally one in volving some

exercise of discretion by the district court, our first inclination

would be to reman d to the district court for it to resolve the

abstention question before proceeding with the merits. 10

In American Bank and Trust Company of Opelousas v. Dent

, 11 we

reviewed a district court order granting the defendant-appellee's

motion to dismiss based on the Eleventh Amendment. In his motion

to dismiss, the defendant urged the court in the alternative to

dismiss the case against him under any one of three abstention

doctrines: Younger

, Burford

, or Pullman

. As the court granted the

motion to dismiss based on the Eleventh Amendment, it did not

address the abste ntion issue. On appeal the defendant-appellee

asked us to consider alternatively the abstention doctrines and to

affirm the dismissal on that basis. After concluding that the

district court erred in dismissing the case, we turned to the

alternative abstention arguments. We observed that the decision to12 Id . at 921-22.

13 40 F.3d 698 (5th Cir. 1994).

1 4 Id

. at 705 (quoting Vaughn v. Mobil Oil Exploration and

Producing Southeast, Inc. , 891 F.2d 1195, 1198 (5th Cir. 1990)).

9 abstain is generally one involving some discretion of the district

court, and concluded that, as the propri ety of abstention under

Burford or Pullman was not absolutely clear on the record, it was

advisable to remand the issue to the district court. 12

But our review of abstention in the instant context convinces

us that it would be inappropriate for the district court to abstain

from exercising its jurisdiction in this case. Moreover,

Appellants ' own cursory treatment of abstention persuades us to

forego remand of this meritless issue to the district court if for

no other reason than that resolving the abstention issue is

generally within the discretion of that court. In N ational

Association of Government Employees v. City Public Service Board of

San Antonio, Tex.

, 13 we reiterated that, as a "trial court will not

rule on claims

- buried in pleadings

- that go unpressed before the

court," appellants' failure to urge their claims before the court

may be construed as an intent to abandon those claims. 14 Although

this maxim pertains to a determination whether a judgment is final

for the purposes of appeal, we are satisfied that it supports our

conclusion that we need not remand a meritless issue to the

district court, particularly when the party urging that issue on

appeal failed to develop and argue it fully in that court.

We discuss briefly the three abst ention doctrines here1 5 Louisiana Debating and Literary Ass'n v. City of New Orleans

,

42 F.3d 1483, 1491 (5th Cir. 1995).

16 401 U.S. 37 (1971).

1 7 Louisiana Debating and Literary Ass'n

, 42 F.3d at 1489; Word

of Faith World Outreach Center Church, Inc. v. Morales

, 986 F.2d

962, 966 (5th Cir. 1993), cert. denied , 114 S.Ct. 82 (1993).

1 8 Louisiana Debating an d Literary Ass'n , 42 F.3d at 1490.

19 Id

.

10 implicated by the Appellants in their pleadings, illustrating why

abstention

- which is general ly the exception, not the rule - is

not appropriate in this dispute. 15

1. Younger Abstention

Abstention under Younger v. Harris 1 6 is appropriate when

federal court jurisdiction would interfere with pending criminal,

civil, or administrative state proceedings. 17 For Younger

abstention to apply, the pending state proceedings must be ongoing

and judicial in nature. 1 8 When no state proceedings are pending,

a federal action does not interfere with state processes, and the

policies on which the Younger abstention doctrine is premised are

unavailing. 19

Clearly when, as here, no state judicial proceedings are

pending, ab stention under Y ounger is unavailable. Appellants'

attempt to classify this dispute as a local rate-making controversy

does not satisfy the standard for Younger abstention. Even though

the rate-making dispute could possibly be classified as ongoing, it

is not judicial in nature. In fact, the only state proceedings

that could trigger abstention under Younger would be an action20 319 U.S. 315 (1943).

2 1 St. Paul Ins. Co. v. Trejo

, 39 F.3d 585, 588 (5th Cir. 1994)

(quoting New Orleans Public Serv., Inc. v. Council of City of New

Orleans , 491 U.S. 350, 361 (1989)).

11 brought in state court by the Ports, challenging the Commission's

approval of the pilotage rates, or some state court action brought

by the Pilots challenging the Ports' rejection of the Commissionapproved rate increase. As neither party has initiated any such

state court action, there are pending no ongoing state judicial

proceedings to suggest that the district court should have

abstained from exercising its jurisdiction in this case.

2. Burford Abstention

We have previously described abstention under Burford v. Sun

Oil Co.

, 20 as follows:

"[w]here timely and adequate state-court review is

available, a federal court sitting in equity must decline

to interfer e with the proceedings or orders of state

administrative agencies: (1) when there are 'difficult

questio ns of state law bearing on policy problems of

substantial public import whose importance transcends the

result in the case then at bar'; or (2) where the

'exercise of federal review of the question in a case and

in similar cases would be disruptive of state efforts to

establish a coherent policy with respect to a matter of

substantial public concern.'" 21

The underlying lawsuit in Burford challenged a highly technical and

complicated regulatory scheme that affected the state's entire oil

and gas conservation system. In an effort to address this complex

scheme, the state had created a compr ehensive centralized system

for judic ial review of orders affecting the scheme. In light of

these circumstances, the Court in Burford determined that federal

court abstention was proper to protect the state's administrative22 Burford , 319 U.S. at 332.

23 St. Paul Ins. Co. , 39 F.3d at 589.

12 process from undue federal influence. 22 Although B urford abstention

is concerned with protecting complex state administrative processes

from undue federal interference, abstention is not mandated merely

because an administrative process exists, or even " in all cases

where there is a 'potential for conflict.'" 23

In challenging Art. 8267(C)(5), the Pilots attack the very

fact that the Ports have the power to veto pilotage rate increases,

arguing that any veto power vested in the Ports is

unconsti tutional. The Pilots do not claim that the Ports

misapplied their lawful authority or that they failed to consider

or balance properly the relevant factors in vetoing the pilotage

rates. Neither do the Pilots contend that the individuals who

compri se the Ports had any disqualifying personal interest that

would give ri se to conflicts of interest in establishing the

pilotage rates for the Ports. Rather, the Pilots argue that, as

the Ports are inherently biased, the provision in Art. 8276(c)(5)

that grants t he Ports a veto over the pilotage rates for the

individual ports violates due process. As the Pilots present a

facial challenge to the statute - disputing the constitutionality

of the Ports' authority to act at all

- reaching the merits of this

challenge will not intrude into any particular state administrative

process or administrative order. Thus, the policy concerns of

Burford are not implicated and abstention under that doctrine would2 4 See New Orleans Pub. Serv., Inc. v. Counc il of City of New

Orleans , 491 U.S. 350, 363 (1989) (observing that federal court's

inquiry into administrative agency's rate-making authority was

limited to four corners of order denying rate increase and did not

unduly intrude into processes or policy of state government).

25 312 U.S. 496 (1941).

2 6 Louisiana Debating and Literary Ass'n

, 42 F.3d a t 1491

(citing Hawaii Hous. Auth. v. Midkiff , 467 U.S. 229, 236 (1984)).

2 7 Id

. at 1492 (quoting Harman v. Forssenius

, 380 U.S. 528, 534-

35 (1965)).

13 be inappropriate. 24

3. Pullman Abstention

Appellants suggest that a third basis for abstention is found

in Railroad Commission of Texas v. Pullman Company

. 25 Under this

abstention doctrine a federal court should abstain from exercising

its jurisdiction when difficult and unsettled questions of s tate

law must be resolved before a substantial federal question can be

decided. 26 Generally, P ullman abstention is appropriate only when

there is an issue of uncertain state law that is "'fairly subject

t o an interpretation [by a state court] which will render

unnecessary or substantially modify the federal constitutional

question.'" 27

For a federal court adjudication to be stayed under Pullman

,

more than an ambiguity in state law and a likelihood of avoiding a

constitutional ruling is required. Rather, the district court must

assess the totality of the circumstances presented by a particular

case, considering the rights at stake and the costs of delay2 8 Duncan v. Poythress

, 657 F.2d 691, 697 (5th Cir. 1981), cert.

dismissed , 459 U.S. 1012 (1982).

2 9 See

, e.g.

, Louisiana Debating and Literary Ass'n

, 42 F.3d at

1491 and n.10 (affirming district court's decision declining to

abstain, noting that one of the bases on which court declined

abstention was fact that neither party had demonstrat ed that

chapter of city code was ambiguous); Word of Faith World Outreach

Center , 986 F.2d at 967 (observing that Pullman abstention is not

proper unless state law in issue is fairly susceptible of an interp retation that might avoid or modify the federal

constitutional question).

14 pending state court adjudication. 28 Even though a district court

must assess the totality of circumstances before deciding whether

to abstain, the decision to abstain under Pullman turns on the

existence of an ambiguous state law. In situations such as the one

we consider today, in which there is no question of ambiguous state

law

- the interpretation of which will substantially modify or

eliminate the constitutional question

- for a federal court to

abstain from exercising jurisdiction over the case would clearly be

inappropriate. 29

Appellants suggest that Article 8267(C)(5) is fairly

susceptible of a reading that would avoid the constitutional issue,

yet they offer no credibl e argument or interpretation of that

statute to support their abstention argument. We read the plain

language of Article 8267(C)(5) to mean unambiguously that there can

be no increase of pilotage rates at the Ports unl ess the Ports

approve the increased rates. Even though it might be less than

pellucid whether the statute intended to grant the Ports the power

to veto the rates set by the Commission, or to permit a system of

dual pilotage rates as between the public and private ports to3 0 See

, e.g.

, Burns v. Watler

, 931 F.2d 140, 147 (1st Cir. 1991)

(observing that, despite cases in which appellate court recognized

that distri ct court was better positioned to perform abstention

analysis, simplic ity of factual situation before appellate court

and potential prejudice to parties for further delay advised court

to perform evaluation itself). Cf. Snap-On Tools Corp. v. Mason

, 18

F.3d 1261, 1267 n.7 (5 th Cir. 1994) (reviewing district court's

dismissal of case on abstention grounds; noting that when

abstention is clearly unwarranted, rather than remand case back to

district court to consider substa ntive merits, appellate court

should consider merits of case and move litigation along).

15 exist, resolving these ambiguities does not modify or eliminate the

constitutional questions presented: Whether the veto violates due

process, or the dual rate system violates equal protection, or

both. We conclude, therefore, that, as the state statute under

review is not fairly subject to an interpretation that will render

unnecessary or substantially modify the federal constitutional

questions raised by the Pilots, abst ention under P ullman is not

appropriate.

It follows, then, that as abstention under any of the above

d octrines would not be appropriate in this dispute, the distr ict

court did not err in exercising its properly invoked jurisdiction.

Thus, in the interest of judicial economy, and in an effort to move

this litigation forward expeditiously, we proceed to consider the

merits of this dispute. 30

C. S UMMARY J UDGMENT B ASED ON D UE P ROCESS

Appellants challenge the district court's gra nt of summary

judgment in favor of the Pilots. Specifically, Appellants contend

that the court erred in concluding that the Ports have such a

pecuniary interest in the flow of vessels to and from their ports

that giving the Ports a final "veto" over the pilotage rates3 1 See T EX

. R EV

. C IV

. S TAT

. art. 8267(c)(4) (West 1994) (mandating

that all parties that have demonstrated a leg itimate interest in

rate application shall have right to speak, present evidence, and

cross examine (to extent possible) at Commission hearings).

3 2 The Ports do argue, however, that as they were denied the

opportunity to present evidence at the Commission hearing, they

were not actually an interested party in the hearings. Arguably,

a ccording to Pilots' definition of "interested party," only the

Port of Beaumont could qualify as an interested party, as it was

the only Port that testified at the Commission hearing.

16 deprives the Pilots of their due process right to a hearing before

a fair and impartial tribunal.

At the outset we note that the Pilots state repeatedly that

they are not challenging the quality or quantity of the Ports'

procedure for approving pilotage rate increases. We note further

that despite the fact that the Pilots' due process claim rests only

on the Ports' status as "interested parties," the Pilots do not

define "interest" with any part icularity. Rather, they allege

simply and conclusionally that because the Ports are legitimately

interested parties which opposed the proposal for a pilotage rate

increase at the Commission hearing, the Ports cannot constitute a

fair and impartial tribunal before which the Pilots must present

the same prop osal at the subsequent port proceedings. 3 1 Implicit

in this argument is the contention that the Ports are biased by

virtue of their having prejudged the facts of the rate-making issue

prior to adjudicating that same issue at their own proceedings.

The Ports do not dispute that (1) they have an interest in the

economic viab ility of their respective ports, or (2) their

r epresentatives attended the Commission hearings and opposed the

proposed rate increases. 32 These undisputed facts relating to the3 3 Withrow v. Larkin

, 42 1 U.S. 35, 46-47 (1975) (citing I n re

Murchison

, 349 U.S. 133, 136 (1955)); Gibson v. Berryhill

, 411 U.S.

564, 579 (1973).

17 Ports' "interest" apparently persuaded the district court to grant

summary judgment in favor of the Pilots. But, the district court

went beyond that simple conclusion, labeling the Ports' interest as

"pecuniary," and observing that the Ports' had a "pecuniary

interest in the flow of vessels through their ports which is

affected by the rates for pilot fees." In light of this perception

the district court concluded that, by granting the Ports a final

veto over the applications requesting an increase in pilotage

rates, the subject sentence of the statute deprived the Pilots of

their right to a fair and impartial tribunal. As we are satisfied

that the district court erred as a matter of law in reaching this

conclusion, we analyze the Ports' "interest" in light of the

relevant due process caselaw and distinguish it from the only two

categories of bias under which the Pilots' due process claim and

the district court's ruling could fall: (1) Actual bias or

probability of actual bias stemming from a pecuniary interest; or

(2) irrevocably closed minds as the result of prejudging the issue.

1. Actual Bias

A fair trial before a fair and impartial tribunal, whether a

court or administrative agency, is a basic requirement of due

process. 3 3 "Not only is a biased decisionmaker constitutionally

unacceptable, but 'our system of law has always e ndeavored to34 Withrow , 421 U.S. at 47.

3 5 Aetna Life Ins. Co.

, 475 U.S. a t 825-26; W ithrow

, 421 U.S.

at 47; Tumey

, 273 U.S. at 523; United States v. Couch

, 896 F.2d 78,

81 (5th Cir. 1990).

3 6 Couch

, 896 F.2d at 81 (quoting Aetna Life Ins. Co.

, 475 U.S.

at 822); Brown v. Vance

, 637 F.2d 272, 278 (5th Cir. 1981) (citing

Tumey v. State of Ohio , 273 U.S. 510, 532 (1927)).

37 See Aetna Life Ins. Co. v. Lavoie

, 475 U.S. 813, 826 (1986)

(holding that state supreme court justice's failure to recuse

himself from case in which he had direct stake in outcome of case

violated due process; holding that, while rem aining justices may

have had slight pecuniary interest in case, interest could not be

classified as dir ect, personal, substantial, and pecuniary, thus

participation of remaining justices did not violate due process);

Gibson v. Berryhill

, 411 U.S. 564, 578-79 (1973) (affirming

district court's holdi ng that substantial pecuniary interest of

administrative adjudicators was sufficient to disqualify them from

a djudicating state law complaints against competitors); War d v.

V illage of Monroeville, Ohio

, 409 U.S. 57, 59-61 (1972) (hold ing

that mayor's dual responsibilities for village finances - derived

18 prevent even the probability of unfairness.'" 34 In an effort to

prevent "even the probability of unfairness," cou rts have

i dentified situations in which the probability of actual bias on

the part of the judge or decisionmake r is too high to be

constitutionally tolerable. Such situations include circumstances

in which the adjudicator has a direct

, personal

, substantial , and

pecuniary int erest in the outcome of the case or in which the

adjudicator has been the target of personal abuse or criticism from

the party before him, 35 or "situation[s]

. . . which would offer

a possible temptation to the average

. . . judge to

. . . lead him

not to hold the balance nice, clear and true." 36 These identified

situations, as applied to due process claims, represent the

standa rd for reviewing allegations of bias against j udicial and

quasi-judicial decision-makers. 37in part from fines levied by m ayor's court - and presiding over

mayor's court violated due process rights of defendants appearing

before mayor's court); In re Murchison , 349 U.S. 133, 139 (1955)

(holding that judge who functioned as grand jury and judge for same

defendants violated due process by virtue of fact that judge was

not wholly disinterested in conviction or acquittal of ac cused);

Tumey v. State of Ohio

, 273 U.S. 510, 523 (1927) (observing that it

violates due process to subject defendant to judgment of court in

which judge has direct, personal, substanti al, and pecuniary

interest in reaching a conclusion against defendant).

3 8 See

, e.g.

, Concrete Pipe and Products of Cal., Inc. v.

Construction Laborers P ension Trust for S. Cal. , 113 S.Ct. 2264,

2277 (1993) (observing that rigid requirements for of ficials

performing judicial or quasi-judicial functions are not applicable

to those acting in prose cutorial or enforcement-like capacity);

Marshall v. Jerrico, Inc. , 446 U.S. 238, 243 (1980) (concluding

that strict requirements of neutrality under Tumey and Ward are not

applicable to administrative determinations made by government

administrator, whose functions resemble those of pros ecutor more

closely than those of judge).

39 446 U.S. 238 (1980).

40 Id. at 247.

19 The Supreme Court has determined, however, that the s trict

requirements of neutrality imposed on these types o f decisionmakers are not applicable to situations involving n onjudicial

decision-makers. 38 In M arshall v. Jerrico, Inc.

, 39 the Supreme Court

determi ned that a federal administrator, who, despite the

enforcement aspects of his position, performed no judicial or

quasi-judicial function, heard no witnesses, and ruled on no

disputed factual or legal questions in carrying out his enforcement

tasks. The Court concluded that the administrator functioned in a

capacity more akin to that of a prosecutor or civil plaintiff than

a judge. 4 0 In light of the noted distinctions between the

administrator's functions and those of a judge, the Court held that

the rigid due process requirements imposed on individuals41 Id. at 248.

42 Id. at 249.

43 Schweiker v. McClure , 456 U.S. 188, 196 (1982).

20 performing judicial or quasi-judicial functions are not applicable

to individuals acting in a prosecutorial or plaintiff-like

capacity. 41 Thus, according to the Supreme Court, an administrator

who functions in a prosecutorial or plaintiff-like capacity is not

held to t he strict requirements of impartiality imposed on those

whose functions are essentially judicial in nature. This is not to

say that ther e are no due process limits on those who perform

prosecutorial or plaintiff-like functions: As public officials,

these individuals still must "serve the public interest" and not be

"motivated by improper factors" or otherwise act "contrary to

law." 42

Clearly the Ports are more akin to administrative prosecutors

than t o those who perform judicial or quasi-judicial functions.

The Ports function as policymakers who are authorized by state law

to establish the rates for pilotage into and out of the individual

ports. In establishing the pilotage rates, the Ports hear no

witnesses (in a judicial sense) and issue no findings or rulings on

factual or legal questions. Thus, under M arshall

, to avoid

judicial scrutiny of their individual port hearings, the Ports need

only act according to their public interests, within the confines

of the law and untainted by any substantial personal interest.

The bur den of establishing a disqualifying interest on the

part of the Ports is on the Pilots. 43 In this instance, a "port"4 4 See Couch

, 896 F.2d 78, 81 (5th Cir. 1990) (citing Aetna Life

Ins. Co. , 475 U.S. at 822)).

21 is a navigational district, an entity whose identity is inseparable

from the individuals who comprise the district. Thus, in

challenging the Ports' role as "adjudicator" over pilotage rates,

the Pilots of necessity challenge those individuals who are the

Ports. It is therefore the "interest" of those individuals that

determines the "interest" of the Ports. And, unless those n atural

persons have a di squalifying interest, t here is no disqualifying

interest on the part of the artificial or juridical person they

comprise, i.e., the Ports.

As noted above, the Pilots challenge the Ports' status as

"interested parties" but do not allege with particularity any

"disq ualifying interest." The Pilots offer no evidence that the

Ports were not acting according to their public interest in vetoing

the pilotage rate proposal. And our de novo review of the record

reveals nothing to suggest that the Ports qua Ports cannot hold the

balance between the role of a decisionmaker on behalf of the public

a nd the ports on the one hand and the Pilots' request for rate

increases on the other. 44 We assume, in such balancing, that the

Ports, through their individual members, recognize that shipping is

the lifeblood of the ports; that the Pilots are indispensable to

ship traffic; and that the pilotage rates are of vital importance

to the Pilots. Likewise, we assume that the Ports are aware that

pilotage rates that are too low will result in a dearth of pilots,

whereas rates that are too high will make the Ports noncompetitive.45 As we conclude that the Pilots' failed to allege a

constitutional violation based on a disqualifying interest, we need

not discuss the district court's specific conclusion that the

pecuniary interest of the Ports in the flow of vessels through

their ports rendered unconstitutional the Ports' power to veto the

pilotage rates. We do note, however, that, despite the fact that a financial or personal interest could in some circumstances render

an administrator's authority unconstitutional, the Ports' economic

interest in their respective ports is too remote to violate the

constraints applicable to the financial or pe rsonal interests of

officials charged with prosecutorial or plaintiff-like functions.

See

, e.g.

, Marshall v. Jerrico, Inc. , 446 U.S. 238, 250-51 (1980)

(declining to define with precision what limits there may be on a

financial or personal interest of one who performs pr osecutorial

function, concluding that disqualifying interest alleged was too

remote to impose bias); Hortonville Joint Sch. Dist. No. 1 v.

Hortonville Educ. Ass'n , 426 U.S. 482, 491-92 (1976) (concluding

that board members did not have kind of personal or financial stake

in challenged decision that might create a conflict).

22 We surmise that in an effort to reconcile these two extremes, the

Ports do in fact hold the balance on behalf of the public, seeking

a happy medium in which both the ports and the Pilots can co-exist

and function.

We observe that the Pilots do not contend on appeal that the

Ports violated Texas law or that the Ports' d ecision to veto the

rate increase was motivated by any substantial personal interest.

And, as we noted above, our de novo review of the rec ord reveals

nothing to suggest that there would have been any support for such

allegations had they been presented. We conclude, therefore, that

the Pilots have failed to state any constitutional due process

violation based on a " disqualifying interest" of the Ports.

Accordingly, we hold that the district court erred as a matter of

law in gran ting summary judgment in favor of the Pilots on the

basis of the Ports' interest. 45

2. Irrevocably Closed Minds46 Withrow , 421 U.S. at 47.

4 7 Id. ; United States v. Batson

, 782 F.2d 1307, 1313 (5th Cir.

1986), cert. denied , 477 U.S. 906 (1986).

4 8 Bakalis v. Golembeski

, 35 F.3d 318, 326 (7th Cir. 1994)

(emphasis added).

23 We also conclude that the Pilots' implicit allegation that the

Ports' "minds" were irrevocably closed t o the proposed pilotage

r ates by having prejudged the facts of the rate-making "dispute"

prior to adjudicating that same "dispute" at their own proceedings

is without me rit. The contention that a tribunal is

unconstitutionally biased because it has prejudged the facts of a

particular disput e carries a more difficult burden of persuasion

than a claim based on actual bias. 46 Allegations of bias based on

the prejudgment of the facts or outcome of a dispute generally stem

from the fact that an administrative body or hearing officer has

dual roles of investigating and adjud icating disputes and

compl aints. In situations in which this type of bias is raised,

the honesty and integrity of those serving as adjudicators is

presumed. 47 In addition, "there is a presumption that those making

decisions affecting the public are doi ng so in the p ublic

interest ." 48 Thus, a party challenging this presumption of honesty

must convince the court that "under a realistic appraisal of

psychological tendencies and human weakness, conferring

investigative and adjudicative powers on the same individuals poses

such a risk of actual bias or prejudgment that the practice must be

forbidden if the guarantee of due process is to be adequately49 Withrow , 421 U.S. at 47.

5 0 See Bakalis

, 35 F.3d at 326; Patrick v. Mil ler , 953 F.2d

1240, 1245 (10th Cir. 1992).

5 1 See

, e.g.

, DCP Farms v. Yeutter , 957 F.2d 1183, 1188 (5th

Cir. 1992) (noting that even though appearance of bias was present,

standards governing administrative proceedings are more relaxed

than those controlling judicial proceedings: "[a]n administrative

decision will be overturned only when the hearing officers' mind is

irrevocably closed or the re was actual bias"), c ert. denied

, 113

S.Ct. 406 (1992); Batson

, 782 F.2d at 1315 (concluding that

appellant presented no evidence indicating that hearing officer's

mind was irrevocably closed or from which to infer bias).

24 implemented." 49

Although courts have observed that an administrative body that

has prejudged the facts or the outcome of a dispute cannot render

a decision that comport s with due process, 5 0 we have held that we

will not infer bias when no evidence is presented to indicate that

a hearing officer's mind was irrevocably clos ed. 5 1 Here, we are

satisfied that, even in light of the fact that the Ports attended

the Commissio n hearing, presumably in firm opposition to the

pilotage rate increase, there still is nothing in the summary

judgment record of this case to suggest that, at the subsequent

port proceedings, the Ports' minds were irrevocably closed

regarding the rate increase.

Indeed, the record supports just the opposite determination,

that the Ports' minds were not irrevocably closed. The summary

judgment evidence reflects that the Ports permitted the Pilots to

present testimony and evidence in support of their proposal,

including an opportunity for questions and answers. In addition,

rather than veto the rate increase "on the spot"

- as one might5 2 See

, e.g.

, Dell v. Board of Educ., TP High School Dist. 113

,

32 F.3d 1053, 1067 (7th Cir. 1994) (relying on Roland

, infra ;

concluding that plaintiff-appellant failed to rebut presumption

that administrative decisionmaker had acted in a fair and impartial

manner by failing to allege a factual basis revealing bias or prejudice); Roland M. v. Concord School Comm.

, 910 F.2d 983, 997-98

(1st Cir. 1990) (concluding that record was barren of any credible

suggest ion that hearing officer had prejudged facts when party

raising claim of bias was permitted to present evidence, examine

witnesses, argue, and object, where objection s were considered

fully and when rejected were explained), cert. denied

, 499 U.S. 912

(1991).

25 expect from those whose minds are irrevocably closed

- the Ports

assigned to board members or members of the ports' staffs the task

of studying the proposed rate increase, and instructe d these

individuals and committees to address the issues relating to the

increase and to report back at the next meeting. On at least one

occasion a representative of the Pi lots met separately with a

representative of the Ports to di scuss the Pilots' proposal.

Clearly, this evidence supports our determination that there is no

credible suggestion that the Ports had irreversibly prejudged the

facts to the extent that their minds were permanently closed to the

issue of the rate increase or that the Ports' administrative

procedures posed an unacceptable risk of bias. 52

III

CONCLUSION

Appellants assert on appeal that the district court erred in

failing t o abstain from exercising its jurisdiction in this

dispute. As we determine that abstention is not appropriate in

this case, we do not remand this issue to the district court to

consider abstention, but instead hold that the district court did26

not err in exercising its properly invoked jurisdiction.

We hold further that the Pilots have failed to allege a due

process violation to support their challenge to Art. 8267(c)(5).

We are satisfied that there is no disqualifying interest affecting

the judgment of the Ports regarding the pilotage rates. We are

equally satisfied that there is nothing to suggest that the Ports

had so prejudged the pilotage rate issue to the extent that they

were impermissibly biased. We hold, therefore, that the district

court erred as matter of law in concluding that the Ports'

"interest," in combin ation with the statutory veto permitted by

Article 8267(C)(5), violates due process, and therefore erred in

striking the "veto" provision in that statute as unconstitutional.

Accordingly, we reverse and vacate the district court's order

granting summ ary judgment in favor of the Pilots, and render

summary judgment in favor of Appellants, dismissing the Pilots'

action in this case.

REVERSED, VACATED, and RENDERED.