United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 11, 2023 Decided August 15, 2023

No. 21-1137

MATSON NAVIGATION COMPANY, INC.,

PETITIONER

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION;

MARITIME ADMINISTRATION,

RESPONDENTS

APL MARITIME, LTD. ET AL.,

INTERVENORS

Consolidated with 22-1150, 22-5212, 22-5224

On Petitions for Review of Orders of the U.S. Department of 

Transportation and On Appeals from the United States 

District Court for the District of Columbia

(No. 1:21-cv-01606)

(No. 1:22-cv-01975)

Lucas C. Townsend argued the cause for 

petitioner/appellant. With him on the briefs were Rachel S. 

Brass, Joshua M. Wesneski, and Amalia E. Reiss.
2

Casen B. Ross, Attorney, U.S. Department of Justice, 

argued the cause for respondents/appellees. With him on the 

brief were Brian M. Boynton, Principal Deputy Assistant 

Attorney General, Charles W. Scarborough, Attorney, John E. 

Putnam, General Counsel, U.S. Department of Transportation, 

Paul M. Geier, Assistant General Counsel for Litigation and 

Enforcement, Joy K. Park, Senior Trial Attorney, and Joseph 

O. Click, Trial Attorney, Maritime Administration.

Brian T. Burgess argued the cause for intervenors in 

support of respondents. With him on the brief was Gerard J. 

Cedrone.

Before: WILKINS, RAO and PAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: This case begins and ends with 

jurisdiction, which we lack under the Hobbs Act. The United 

States Maritime Administration (“MARAD”) approved a 

shipping company’s request to replace two vessels operating in 

the Pacific trade within the Maritime Security Program. 

Matson Navigation Co., a competitor in the Pacific, petitions 

for review of the replacements. As a source of jurisdiction, 

Matson points to the Hobbs Act, under which we have original 

jurisdiction over some acts of MARAD. But we have Hobbs 

Act jurisdiction only when a “party aggrieved” files a timely 

petition for review.

Matson was not a “party” to the replacement proceedings

for either vessel, and we therefore deny the petitions for direct 

review. We also reverse two orders of the district court, 

consolidated with these petitions, that held jurisdiction over

Matson’s claims under the Administrative Procedure Act 

(“APA”) was exclusive in the court of appeals. Because we 
3

lack jurisdiction under the Hobbs Act, Matson’s APA claims 

were appropriately brought to the district court in the first 

instance, and we remand for further proceedings.

I.

A.

Matson is an American shipping company that has been 

providing freight carrier services in the Pacific since 1882.

Matson’s vessels carry cargo from the West Coast of the United 

States to ports in Asia, Hawaii, Guam, and the Northern 

Mariana Islands, to name a few. One of Matson’s competitors 

in the region is APL, a shipping company organized in 

Delaware and owned by a French corporation.

APL participates in the Maritime Security Program 

(“MSP”). The MSP provides annual payments to the owners of 

vessels that are made available for use “by the United States 

for national defense or military purposes in time of war or 

national emergency.” 46 U.S.C. § 53102(b)(4)(A); see also id.

§ 53107. The purpose of the MSP is to “maintain a United 

States presence in international commercial shipping” that can 

be activated in a crisis. Id. § 53102(a). MARAD, an agency 

within the Department of Transportation, oversees the MSP by 

determining vessel eligibility, entering into operating 

agreements, and approving “replacement” vessels for the MSP

fleet. Id. §§ 53102, 53103, 53105(f); see also 46 C.F.R. 

§ 296.1.

MSP vessels must trade exclusively in foreign commerce 

with one important exception. Vessels approved before 20181

1 Congress tightened the requirements for MSP vessels engaging in 

domestic trade in the National Defense Authorization Act for 2018. 

Pub. L. No. 115-91, § 3503, 131 Stat. 1283, 1911 (2017). Except a
4

and “replacement” vessels may trade in “mixed” foreign and 

domestic trade with designated islands in the Pacific.2See 46 

U.S.C. § 53105(a)(1)(A) (explaining MSP vessels must trade 

“exclusively in the foreign commerce or ... in mixed foreign 

commerce and domestic trade allowed under a registry 

endorsement”); id. § 53105(a)(2) (“[I]n the case of a vessel, 

other than a replacement vessel ..., first covered by an 

operating agreement after ... 2018, the vessel shall not be 

operated in the transportation of cargo between points in the 

United States and its territories either directly or via a foreign 

port.”). Because new vessels participating in the MSP cannot 

engage in trade with domestic islands in the Pacific, it is 

valuable for a new vessel to be approved as a “replacement.”

MARAD, in conjunction with the Secretary of Defense, 

may approve the replacement of a vessel with another vessel 

eligible to be included in the MSP fleet. Id. § 53105(f). To be 

eligible for participation in the MSP, a vessel must be owned 

and operated by United States citizens as defined by section 

50501. Id. § 53102(c)(1); see also id. § 50501 (defining entities 

“deemed citizens of the United States”). The vessel must be 

“self-propelled” and suitable for “national defense” purposes. 

carveout for replacements, only vessels approved before the Act may 

engage in “mixed” domestic and foreign trade. See 46 U.S.C. 

§ 53105(a).

2

In the United States, domestic shipping is heavily regulated. For 

example, under the Jones Act, a vessel may not engage in the 

transportation of merchandise “between points in the United States 

to which the coastwise laws apply” unless several requirements are 

met. 46 U.S.C. § 55102(b). And the vessel must be “wholly owned 

by citizens of the United States,” id. § 55102(b)(1), and “built in the 

United States,” id. § 12112(a)(2)(A).
5

Id. § 53102(b)(3)–(4). And the vessel must provide 

“transportation in foreign commerce.” Id. § 53102(b)(2).

Replacement approvals are handled informally between 

MARAD and the MSP contractor. Neither the statute nor the 

regulations provide for intervention by third parties in these 

proceedings. See 46 C.F.R. § 296.30; 46 U.S.C. § 53105(f).

B.

This case involves two replacement vessels. APL 

requested approval of the HERODOTE as a replacement for 

the GUAM, a vessel operating in the Pacific.

3 MARAD 

approved the replacement in 2021, and the HERODOTE began 

carrying cargo originating in the United States to Saipan. The 

agency does not ordinarily provide public notice that an MSP 

contractor has applied to replace one vessel with another, and 

so Matson was unaware of the proceedings. When it learned of 

the approval, Matson asked MARAD to provide the 

administrative record so Matson could contest the approval. 

MARAD refused.

Matson filed an APA challenge against MARAD in 

district court pursuant to 28 U.S.C. § 1331, arguing that 

approval of the HERODOTE was arbitrary, capricious, and 

contrary to law. At the same time, Matson also filed a petition 

for direct review in our court pursuant to the Hobbs Act. The 

district court dismissed the APA challenge, holding the Hobbs 

3 Matson previously contested the 2015 approval of the GUAM as a 

replacement vessel. Matson’s challenge reached our court, and we 

dismissed for lack of jurisdiction under the Hobbs Act because 

Matson’s petition was untimely. Matson Navigation Co. v. DOT, 895 

F.3d 799, 801, 804 (D.C. Cir. 2018).
6

Act vested exclusive jurisdiction in the court of appeals, and 

Matson appealed.

In June 2022, MARAD approved the DAKAR to replace 

another APL vessel operating in the Pacific, the AGATE. 

Because of litigation involving the SAIPAN, an earlier 

replacement for the AGATE,4 MARAD informed Matson that 

APL was seeking to replace the SAIPAN with an unnamed 

vessel. MARAD initially provided no details to Matson about 

the replacement vessel, but invited Matson to submit 

comments. In its comments, Matson argued that MARAD had 

violated the Due Process Clause, the APA, and various 

regulations by not turning over more information about the 

replacement proceedings. Matson also maintained the new ship 

was an ineligible replacement under the MSP because it 

engaged in domestic trade and because the SAIPAN had been 

operating unlawfully. In total, Matson submitted 24 pages of 

comments and 38 exhibits. Matson also requested to intervene 

and fully participate in the proceedings.

In its order approving the DAKAR as a replacement 

vessel, MARAD responded to Matson’s comments but rejected 

the request to intervene and fully participate. Matson filed suit

again under the APA, in the district court pursuant to 28 U.S.C. 

§ 1331 and in our court pursuant to the Hobbs Act. Matson 

4 Matson also contested approval of the SAIPAN as a replacement 

vessel in 2016. We dismissed Matson’s challenge to the SAIPAN for 

lack of jurisdiction under the Hobbs Act because MARAD’s order 

did not invoke section 50501. Matson Navigation, 895 F.3d at 805. 

The district court vacated approval of the SAIPAN and remanded the 

issue to MARAD. Matson Navigation Co. v. DOT, 471 F. Supp. 3d 

60, 62–63 (D.D.C. 2020). APL eventually stopped seeking approval 

for the SAIPAN because its age made it ineligible for the MSP. See

46 U.S.C. § 53102(b)(3). The parties dispute whether the DAKAR is 

replacing the AGATE or the SAIPAN.
7

moved for a preliminary injunction, but the district court denied

Matson’s motion, holding the Hobbs Act granted the court of 

appeals exclusive jurisdiction. Matson filed an interlocutory 

appeal. We granted the parties’ request to consolidate the four 

dockets regarding the DAKAR and HERODOTE: the two 

Hobbs Act petitions filed in this court, the interlocutory appeal 

from the denial of a preliminary injunction, and the appeal from 

a dismissal for lack of jurisdiction.

II.

Matson petitions for direct review under the Hobbs Act, 

which provides a “party aggrieved by [a] final [agency] order 

may, within 60 days after its entry, file a petition to review the 

order in the court of appeals wherein venue lies.” Id. § 2344. 

The Hobbs Act enumerates covered agency actions, which 

include “all rules, regulations, or final orders of ... the 

Secretary of Transportation issued pursuant to section 50501.”

Id. § 2342(3). “Implementation of the [MSP] has been 

delegated by the Secretary of Transportation to [MARAD].” 46 

C.F.R. § 296.1. Matson claims MARAD’s approvals of the 

HERODOTE and the DAKAR were issued pursuant to section 

50501, which defines “[e]ntities deemed citizens of the United 

States,” one of the eligibility criteria for participation in the 

MSP. 46 U.S.C. § 50501; see also id. § 53102(c). We do not 

reach the merits of Matson’s claim because Matson was not a 

“party aggrieved” by APL’s replacement proceedings, and we 

lack jurisdiction under the Hobbs Act.

To determine whether a petitioner is a “party aggrieved” 

under the Hobbs Act, we apply “two successive steps.” Water 

Transp. Ass’n v. ICC, 819 F.2d 1189, 1192 (D.C. Cir. 1987).

First, a petitioner is “aggrieved” when the traditional analysis 

for Article III standing is satisfied—namely the petitioner “has 

suffered an injury in fact traceable to the [agency’s] ruling and 
8

redressable by a decision” of our court. Id. at 1193. Second, we 

consider whether the petitioner was a “part[y] to the underlying 

agency proceedings.” ACA Int’l v. FCC, 885 F.3d 687, 711 

(D.C. Cir. 2018). We “must read ‘party’ as referring to a party 

before the agency, not a party to the judicial proceeding.”

Simmons v. ICC, 716 F.2d 40, 43 (D.C. Cir. 1983). This reflects 

the “special judicial review provisions of the Hobbs Act,” in 

which Congress specified a petitioner must be a “party 

aggrieved,” rather than a “person aggrieved” as in the APA’s 

judicial review provision enacted just four years earlier. Id. 

(emphasis added). Giving “meaning to that apparently 

intentional variation,” a petitioner must acquire “party” status 

before the agency in order to invoke jurisdiction under the 

Hobbs Act. Id.

The prerequisites to being a “party” will depend in part on 

the nature of the agency proceedings because the Hobbs Act 

provides for review of a variety of agency actions, including

“rules, regulations, [and] final orders.” See 28 U.S.C. 

§ 2342(3). We have said the level of participation necessary to 

be a “party” depends on the formality of the proceedings. Ohio 

Nuclear-Free Network v. NRC, 53 F.4th 236, 239 (D.C. Cir. 

2022); see also Simmons, 716 F.2d at 43 (explaining that when

agency proceedings are not “structured” so “at least some 

persons may acquire party status,” there are “other means to 

assure, where appropriate,” that an “order will be directly 

appealable” under the Hobbs Act). When intervention before 

the agency is required, review “will be denied to those who did 

not seek—or who sought but were denied—leave to intervene.” 

Ohio Nuclear-Free Network, 53 F.4th at 239 (cleaned up). In

informal proceedings, however, a petitioner may be considered 

a “party” after making a “full presentation of views” before the 

agency. Water Transp. Ass’n, 819 F.2d at 1193. “[D]e minimis 

participation is insufficient.” S. Pac. Transp. Co. v. ICC, 69 

F.3d 583, 587 (D.C. Cir. 1995) (cleaned up).
9

Even assuming that MARAD’s orders approving the 

HERODOTE and the DAKAR were issued pursuant to section 

50501 and that Matson was “aggrieved” as a competitor to 

APL’s replacement vessels, Matson was not a “party” to the 

MARAD proceedings and therefore we lack jurisdiction over 

Matson’s Hobbs Act petitions.

A.

We first consider MARAD’s order approving the 

HERODOTE as a replacement vessel under the MSP. 

“MARAD has always handled MSP participant requests for 

approval of a replacement vessel as informal matters between 

MARAD, in consultation with the [Department of Defense], 

and the MSP participant.” Email from Joseph O. Click, Lead 

Attorney, Maritime Support Programs, to Mark A. Perry & 

Brian Burgess, Attorneys for Matson Navigation Co. (Sept. 1, 

2021). MSP contractors send a request for approval to the 

Maritime Administrator. There is no formal mechanism for

third parties to submit comments or intervene. Matson admits 

it did not participate, in any way, in the 2021 MARAD 

proceedings about whether the HERODOTE should be 

approved as a replacement vessel. Matson did not seek to 

intervene and did not otherwise present its views to the agency.

In fact, Matson complains it was unaware the replacement 

proceedings were happening at all. After learning of the 

HERODOTE’s approval, Matson requested the administrative 

record, but MARAD refused.

Because it was in the dark about the proceedings, Matson 

made no presentation of its views to the agency, much less the 

full presentation necessary to being a “party aggrieved.” We 

therefore lack jurisdiction over Matson’s Hobbs Act petition 

challenging MARAD’s 2021 approval of the HERODOTE as 

a replacement vessel.
10

B.

With respect to the approval of the DAKAR as a 

replacement vessel, Matson managed some participation in the 

MARAD proceedings. In 2021, APL requested approval to 

replace the AGATE. Because Matson had successfully sued 

MARAD in district court for approving the SAIPAN as a

replacement for the AGATE in 2016, and the court had 

“requested that MARAD keep Matson apprised of 

developments,” the agency informed Matson about the 

replacement application. See Email from Joseph O. Click to 

Mark A. Perry & Brian Burgess. Although MARAD declined

to provide Matson with detailed information about the 

replacement, because of “the unique circumstances” of the 

long-running lawsuit against MARAD over the AGATE, the 

agency invited Matson to “submit any comments with respect 

to the vessel application” within two weeks. Id. This was 

unusual for what is normally a bilateral process between the 

MSP contractor and the agency.

Matson submitted 24 pages of comments and 38 exhibits 

to MARAD. Matson maintained that the agency had violated 

the Due Process Clause, the APA, and MARAD’s regulations 

by not allowing Matson to participate fully. Additionally, 

Matson argued, on the merits, that the new ship was ineligible

under the MSP because it engaged in domestic trade and was 

ineligible as a replacement because the vessel being replaced 

had been operating unlawfully. Finally, Matson asked to 

“intervene” and “fully participate” in the proceedings. 

MARAD allowed APL to submit a response.

MARAD approved the DAKAR in May 2022, responding

to Matson’s comments and APL’s response, but rejecting

Matson’s attempts to “intervene” and “fully participate” in the 

proceedings. MARAD stated that for “informal adjudications” 
11

like the replacement proceedings, only “minimal procedural 

requirements” are necessary. According to MARAD, it had

“provided Matson with a significant opportunity to appear 

before the agency and present its views,” but allowing third 

parties to intervene would “convert the MSP vessel 

replacement process into an adversarial proceeding” and “only 

disrupt[] what has heretofore been an informal process that has 

operated smoothly and relatively expeditiously.” Although 

MARAD rejected Matson’s request to participate more fully, 

the agency responded to and rejected several of Matson’s 

comments on the merits.5

Matson’s limited participation in the DAKAR’s approval 

did not make Matson a “party” to the agency proceedings for 

the purposes of the Hobbs Act. First, MARAD refused to turn 

the replacement approval process into a formal proceeding. 

Although MARAD permitted Matson to submit limited 

comments, the agency explicitly rejected Matson’s request to 

intervene. And we have held that a petitioner is not a party 

when intervention is sought but denied. Ohio Nuclear-Free 

Network, 53 F.4th at 239. Intervention is the process by which 

a non-party becomes a party to a proceeding. See generally

Broidy Cap. Mgmt. LLC v. Muzin, 61 F.4th 984, 990 (D.C. Cir. 

2023) (“Parties to the record include the original parties and 

those who have become parties by intervention.”) (cleaned up). 

Ordinarily, an individual denied intervention “is not a party.” 

Defs. of Wildlife v. Perciasepe, 714 F.3d 1317, 1328 (D.C. Cir. 

2013) (cleaned up). Matson never became a “party” under the 

Hobbs Act because its request to intervene was denied. Ohio 

Nuclear-Free Network, 53 F.4th at 239. In fact, Matson 

5 MARAD disagreed with Matson’s claims that the DAKAR’s trade 

with Saipan rendered it ineligible under the MSP, that the DAKAR 

could not replace the AGATE because the AGATE was ineligible, 

that the DAKAR violated MARAD’s “heel-to-toe” policy for 

replacement, and that the DAKAR was not commercially viable.
12

acknowledges that “MARAD refused to allow Matson to 

intervene and fully participate in the DAKAR proceedings.” 

Reply Br. 5. Matson may separately claim MARAD’s denial of 

intervention was unlawful, but it has not done so in the petition 

before this court.

Second, Matson did not make a “full presentation of 

views” before MARAD. In its comments, Matson argued the 

agency had acted unlawfully by denying the opportunity to 

“fully participate.” Matson pointed out that it did not have the 

requisite information to present all its views, including “timely 

copies of any submissions, applications, correspondence, or 

other communications” to the agency. In addition, Matson was 

not provided with the “how, when[,] and why” of APL’s 

decision to operate the DAKAR, or even the technical 

specifications of the vessel like “size, type, and age.” In no way 

was the 2022 replacement proceeding an “adversarial” one.

Rather, it was an administrative application process between 

APL and MARAD. Matson played a limited outside role and 

submitted comments within the narrow scope permitted by 

MARAD. Because Matson did not, and was not allowed to, 

fully present its views in the DAKAR proceedings, Matson was 

not a “party” within the meaning of the Hobbs Act. 

While we have held that less formal participation may 

sometimes be sufficient for “party” status, those cases are 

distinguishable from the facts here. For example, in Water 

Transportation Association, the agency “did not call for formal 

intervention” and instead “solicited general protests.” 819 F.2d 

at 1193. “Given the informality of th[e] proceeding,” we found 

the petitioner participated fully by submitting a protest and

therefore had “party status.” Id. There, the petitioner had full 

access to information about the proceedings, and so was able 

to present a full protest to the agency’s action. Id.; see also ACA 

Int’l, 885 F.3d at 711 (finding the petitioner had achieved party 
13

status by commenting on another’s request for a declaratory 

ruling from the agency because the petitioner had “expressed 

support” for the request and “address[ed] certain additional 

issues,” similar to the process of “submitting comments ... in 

the context of a rulemaking”) (cleaned up).

By contrast, Matson tried to participate fully and was 

prevented from doing so. The agency action here was not a 

rulemaking in which a person could participate by submitting 

comments; nor did the agency provide information about the 

proceedings and allow third parties to make a general protest.

As MARAD has explained, replacement proceedings under 

section 53105(f) have always been informal and bilateral, 

between the MSP Contractor and the agency, without 

adversarial participation or public comments. There is no 

process for intervention and no specific procedures the agency 

must follow. See 46 C.F.R. § 296.30 (explaining simply that 

the vessel owner can seek replacement). Here, Matson was able 

to make limited comments, with limited information about the 

proceeding, as a matter of administrative grace. Matson’s 

participation was so limited, it argued the proceedings violated 

the APA and the Constitution. Accordingly, Matson was not a 

“party” before MARAD under the Hobbs Act and we lack 

jurisdiction to review Matson’s petitions for review.

III.

Our lack of jurisdiction under the Hobbs Act also 

dispenses with Matson’s two appeals from the district court. In 

Matson’s challenges to the DAKAR and HERODOTE 

proceedings under the APA, the district court held that the 

court of appeals had exclusive jurisdiction under the Hobbs 

Act. Because this was error, we reverse and remand both cases 

to the district court to consider the merits of Matson’s claims.
14

* * *

Whether a case begins in district court or is eligible for 

direct review in our court is a policy decision that is for 

“Congress rather than us to determine.” Simmons, 716 F.2d at 

43. The important thing is clarity. As Matson’s counsel stated 

at oral argument, the company is just “trying to get review.” 

Because sending limited comments based on limited 

information to an informal agency proceeding does not confer 

“party” status under the Hobbs Act, that review starts in the 

district court.

We therefore dismiss the two petitions for review under 

the Hobbs Act; we reverse the district court’s denial of a 

preliminary injunction in the challenge to the 2022 approval

order; and we reverse the dismissal of the 2021 approval order. 

We remand to the district court for further proceedings 

consistent with this opinion.

So ordered.