'MEMORANDUM OPINION -
Granting Dependant’s Renewed Motion for Summary Judgment; .. Denying Plaintiff’s Cross-motion for Summary Judgment; Denying as Moot Defen. dant’s Motion To Strike .
I. INTRODUCTION
In April 2013, the United States Coast Guard (“Coast Guard”)' performed a routine inspection aboard' a foreign-flagged shipping vessel named the MW ANTONIS G. PAPPADAKIS, which revealed potential criminal violations stemming from the unlawful disposal of oily bilge waste. Criminal • charges were subsequently filed against the vessel’s owner, its International Safety Management manager, and its Chief Engineer. While these charges were pending, the Coast Guard refused to reinstate a clearance that would allow the ship to return to sea unless a bond in the amount of $2.5 million dollars was posted and the parties agreed to certain other nonmonetary conditions. However, these demands were never met. Ultimately, both the owner and the International Safety Management manager were acquitted of the charges and 'the ship’s departure clearance was finally granted in September 2013.
In the present action, Plaintiff Angelex Ltd. (“Angelex”), the owner of the ship, has filed suit against Defendant the United States of America (the “Government”) under 33 U.S.C. § 1904(h), seeking compensation for losses incurred as a result of the nearly five-month delay of the vessel. In short, Angelex contends that the Coast Guard’s acts and omissions, including its demand for a $2.5 million bond and other nonmonetary conditions, resulted in .the unreasonable delay of the vessel, thus entitling Angelex to compensation. Pending now before, the Court are the parties’ cross-motions for summary judgment. See Def.’s Renewed Mot. Summ. J. (“Def.’s Renewed Mot.’’), ECF No. 38; PL’s Cross-Mot. Summ. J. (“Pl.’s Cross-Mot.”), ECF No. 40. For the reasons stated below, the Court finds that the Government is entitled to summary judgment on all claims.
II. BACKGROUND
Angelex is a foreign corporation registered in Malta and is the owner, of the foreign-flagged vessel known as the M/V ANTONIS G. PAPPADAKIS (the “Pappar dakis” or the “Vessel”). Def.’s Statement Material Facts (“Def.’s SMF”) ¶¶ 1, 3, ECF No. 22-2; Pl.’s Resp. SMF at 1. At all times relevant to the current action, Kassian Maritime Navigation Agency, Ltd. (“Kassian”), a Greek company, contracted with Angelex to serve as the International Safety Management manager (“ISM manager”) aboard the Pappadakis. Def.’s Resp; SMF ¶ 3. On April 14, 2013, the Pappadak-is was on a long-term time charter to United Bulk Carriers International when it arrived at the Norfolk Southern terminal at the Port of Norfolk to load a shipment of coal. Def.’s SMF .¶ 5; Pl.’s Resp. SMF at 1; Def.’s Resp. SMF ¶ 4. The next day, officers from the United States Coast Guard (“Coast Guard”) conducted a routine Port State Control inspection onboard the ship. Def.’s SMF ¶ 15; Pl.’s Resp; SMF at 1. During the inspection, a member of the crew provided- Coast Guard inspectors with a note and photographic evidence of a so-called “magic pipe,” which was designed;to bypass certain- environmental safety features aboard the ship. Def.’s SMF ¶¶ 16, 18; Pl.’s Resp. SMF at 1. Specifically, this temporary modification was intended to bypass the ship’s oily water separator such that oily bilge waste that accumulated aboard the Vessel would be pumped directly overboard without first having contaminants removed. Def.’s SMF ¶¶ 16, 18; Pl.’s Resp. SMF at 1. Given this information, the Coast Guard decided to conduct a wider investigation into the Vessel’s compliance with the Act ,to Prevent Pollution from Ships '(“APPS”). Def.’s SMF ¶ 20; Pl.’s Resp. SMF at 1.
A. The Act to Prevent Pollution from Ships
The APPS is a federal statute that implements an international maritime treaty called the International Convention for the Prevention of Pollution from Ships, commonly known as “MARPOL.” MARPOL aims “to achieve the complete elimination of intentional pollution of the marine environment by oil and other , harmful substances-- and the minimization of, accidental discharge of such substances.” See Wilmina Shipping AS v. U.S. Dep’t of Homeland Sec. (Wilmina Shipping II),
In 1980, the United States enacted the APPS to implement MARPOL. The “APPS authorizes the Secretary [of the United States Department of Homeland Security (‘DHS’)] to administer and enforce MARPOL and to issue regulations to implement the treaty’s requirements.” Id. at 7 (citing 33 U.S.C. § 1903(a), (c)(1); 33 C.F.R. § 151.01 (2014); see also Watervale Marine Co. v. U.S. Dep’t of Homeland Sec.,
Under the APPS, as well as certain other statutes, the Coast Guard is authorized to board and inspect vessels that are docked at U.S. ports to detect potential violations of the APPS, MARPOL, and other environmental laws. 33 C.F.R. § 151.23(a); see also 14 U.S.C. § 89 (authorizing Coast Guard officers to board and inspect ships at ports). Before departing a U.S. port, foreign-flagged ships must obtain a departure clearance from U.S. Customs and Border Protection (“CBP”). 46 U.S.C. § 60105(b). However, under 33 U.S.C. § 1908(e), if there is “reasonable cause” to suspect that “a ship, its owner, operator, or person in charge” may be subject to a fine or civil penalty under the APPS and the Coast Guard has requested that the departure clearance be withheld, CBP is obliged to withhold or revoke the clearance. See 33 U.S.C. § 1908(e); Watervale Marine Co.,
B. Withdrawal of the Pappadakis’s Departure Clearance
The expanded investigation of. the Pap-padakis revealed that the Vessel’s oil record book contained no entries recording the direct discharge of oily bilge water overboard without being processed through the oily water separator. Defi’s SMF ¶ 21; Pl.’s Resp. SMF at 1. Yet, inspectors discovered that the ship’s oily water separator was not even operable. Def.’s SMF ¶ 22-23; Pl.’s Resp. SMF at 1. Coast Guard officials continued to inspect the Pappadakis and interview crewmem-bers in the days that followed. Defi’s SMF ¶ 25; PL’s Resp. SMF at 1.
On April 19, 2013, the Coast Guard completed its onboard investigation and no further investigation was ever conducted after that point. Defi’s' SMF ¶ 63; PL’s Resp. SMF at 1; Def.’s Resp. SMF ¶ 16. That evening, in light of its findings, the Coast Guard sent a letter to Angelex and Kassian informing them that the Coast Guard had collected evidence “establishing reasonable grounds to believe” that the Pappadakis had violated MARPOL and APPS. Def.’s SMF ¶ 64; PL’s Resp. SMF at 1. Accordingly, the Coast Guard requested that CBP withhold the Pappadak-is’s departure clearance, but did not provide any information reasoning or factual predicate supporting its recommendation. Defi’s SMF ¶ 64; PL’s Resp. SMF at 1; Def.’s Resp. SMF ¶¶ 5, 7. Upon the Coast Guard’s request, and without conducting its own investigation, CBP withdrew the Pappadakis’s departure clearance. Def.’s Resp. SMF ¶5-6. However, the Coast Guard informed Angelex that it would request the departure clearance be reinstate ed “[w]hen adequate surety” was provided. Defi’s SMF ¶ 64; PL’s Resp. SMF at 1.
Soon thereafter, Angelex and the Coast Guard began discussing the "terms and conditions necessary to reinstate the Vessel’s departure clearance. Def.’s SMF ¶ 65; PL’s Resp. SMF at 1. The Coast Guard sought both the posting of a monetary bond and the execution of a “Security Agreement” that imposed various non-financial conditions. Under the Security Agreement both Angelex and Kassian would be required to take the following actions:
• pay wages, housing and transportation costs, along with a per diem, for those crew members deemed material witnesses that remained in the jurisdiction and facilitate their travel for court appearances; "
• maintain the employment of the crew members that remained in the jurisdiction;
• encourage crew members to cooperate with investigators and refrain from taking disciplinary or other adverse actions against crew members who cooperate;
• hold the crew members’ passports for safekeeping and notify the government if any crew member requested the return of his passport;
• arrange for repatriation of -crew members once they left the- United ' States; ,
• stipulate to the authenticity of documents and items seized from the vessel;3
• assist the Government in effecting service of process on crew members located outside the United States;
• waive objections to both in person-am jurisdiction over themselves and waive in rem jurisdiction over the vessel; and
• authorize counsel to accept service of legal, papers and enter an appearance in federal district court.
See Def.’s SMF ¶ 66; Pl.’s Resp. SMF at 1; Def.’s Mot., Ex. 7, ECF No. 22-8.
The parties, however, did attempt to negotiate. According to Angelex, neither it nor Kassian could afford the bond amount that thé Coast Guard was demanding and Angelex attempted to persuade the Coast Guard of this. See First Am. Compl. ¶¶ 41, 60, ECF No. 20; PL’s Cross-Mot., Exs. 3-4, ECF No. 40-5; see also Pi’s Cross-Mot. at 7, ECF No. 40; Pl.’s Reply at 6, ECF No.‘48. Additionally, Angelex represented to the Coast Guard that the Pappa-dakis was encumbered with a mortgage that exceeded the value of the Vessel, See PL’s Cross-Mot., Exs. 3-4; As a résult of these factors, the negotiations between the parties appear to have largely centered on the bond amount. See Def.’s Supplemental Statement Material Facts (“Def.’s Supplemental SMF”) ¶¶ 149-157, ECF No. 38-2; PL’s Resp. SMF at 1; PL’s Cross-Mot., Exs. 3-4. Initially, the Coast Guard demanded a bond in the amount of $3 million. Def.’s Supplemental SMF ¶ 150; PL’s Resp. SMF at L Angelex counter-offered with a $174,000 bond and later increased its offer to $500,000 and then $775,000. Def.’s Supplemental SMF ¶¶ 150, 152-53; PL’s Resp. SMF at 1. The Coast Guard, on the .other hand, was only ever willing to reduce the bond -amount to $2.5 million. Def.’s Supplemental SMF ¶ 154; PL’s Resp. SMF at 1. The Coast Guard insisted that unless Angelex and Kassian jointly and severally posted a $2.5 million bond, the Vessel was to remain in the district as security for potential criminal fines or penalties. Angelex would not agree and therefore the parties were at an impasse. Def.’s SMF ¶ 73; PL’s Resp. SMF at 1. As a result, the Coast Guard continued to withhold the ship’s departure clearance.
C, Litigation in the Fourth Circuit
Unwilling or unable to meet the Coast Guard’s demands, and with the Pappadákis unable to leave port, Angelex filed an emergency petition in the District Court for the Eastern District of Virginia seeking the reinstatement of the Pappadakis’s departure clearance. See Angelex Ltd. v. United States, No. 13-237,
Because the parties failed to reach an agreement, Judge Doumar was forced to rule on Angelex’s emergency petition. After first finding that the court had subject matter jurisdiction to hear Angelex’s emergency petition under both the Administrative Procedure Act (“APA”) and the court’s admiralty jurisdiction, Judge Dou-mar ruled that the Coast Guard had abused its discretion in demanding a bond of $2.5 million and imposing other non-monetary conditions. Id. at *9. The court then entered an order setting a bond of $1.5 million with several specific nonmone-tary conditions. See id. at *10. The Government requested that the district court temporarily stay its order and simultaneously filed a notice of appeal requesting a stay from the U.S. Court of Appeals for the Fourth Circuit. See Angelex Ltd. v. United States,
On appeal, the Government argued that the matter should be dismissed because the district court lacked- subject-matter jurisdiction. See id. But in its- briefing, the Government suggested that the Coast Guard’s decisions were not entirely unre-viewable; Pl.’s Opp’n Mot. Dismiss, Ex. 3 at 4-7, ECF No. 8-3. Indeed, it emphasized that “Congress ... authorized an after-the-fact remedy for obtaining compensation from the government.” Pl.’s Opp’n Mot. Dismiss, Ex. 3 at 7. Specifically, it noted that” [ujnder 33 U.S.C. § 1904(h), ‘[a] ship unreasonably detained or delayed by the Secretary acting under the authority of this Act [sic] is entitled to compensation for any loss or -damage suffered thereby.’” PL’s Opp’n Mot..Dismiss, Ex. 3 at 7. Thus, according to the Government, “Congress' [ ] did- not leave vessel owners without recourse .against- unreasonable denials -of clearance” because it “authorized an independent damages action, separate from the enforcement proceedings against the vessel.” PL’s Opp’n' Mot. Dismiss, Ex. 3 at 7.
The Fourth Circuit agreed-that the district court lacked subject matter jurisdiction and reversed the district court’s decision. See Angelex II, at 502,. The' Fourth Circuit held that the Coast Guard’s position on the terms for the Pappadakis’s release was unreviewable under the APA because the APA did not permit review of agency actions that' are committed to agency discretion by law. See id. at 506-09; It also agreed with the Government’s argument that § 1904(h) of the APPS provided a remedy for vessel owners such as Ange-lex against unreasonable denials of clearance:
Finally,. APPS contains a built-in safeguard to .governmental abuses, which. further convinces us that Angelex’s Petition is out of place and time. In addition to the criminal and civil penalties that APPS authorizes the United States to seek, APPS provides for compensation for loss or damage as a result of unreasonable detention by the Coast Guard. Section 1904(h) ... is, ■ as the government asserts, an “after-the-fact damages remedy against the United States for unreasonable detention or delay.” Appellant’s Br. 37. This safeguard gives Ap-pellees a remedy, distinct from the unauthorized injunctive relief they now seek.
Id. at 508-09. Accordingly, the court held that “the district court thereby did not possess subject matter jurisdiction under the APA.” Id. at 509. After also concluding that admiralty jurisdiction was inapplicable, the court remanded the case to the district court for dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. See id. at 509-10.
D.Criminal Trial and Release of the Pappadakis
On May 23, 2013, a grand jury for the Eastern District of Virginia returned an eight-count indictment against Angelex, Kassian, and the Vessel’s Chief Engineer. See Def.’s SMF ¶68; PL’s Resp. at,l. Among other charges, the indictment included three violations of the APPS. See Def.’s SMF ¶ 68; Pl.’s Resp. SMF at 1. Specifically, three counts of failing to maintain an accurate oil record book. Def.’s SMF ¶ 68; PL’s Resp. SMF at 1. A two-week criminal trial then began in August 2013, Def.’s SMF ¶.69; PL’s Resp. SMF at 1. Meanwhile, the Coast Guard and CBP continued to withhold the Pap-padakis’s departure clearance. Def.’s SMF ¶ 73; PL’s Resp. SMF at 1. Ultimately, Angelex and Kassian were acquitted, while the Chief Engineer was convicted on all charges except conspiracy. Def.’s SMF ¶¶ 71-72; PL’s Resp. SMF at 1. On September 17, 2013, four days after the conclusion of the trial, the Coast Guard advised Angelex and Kassian that the Pappadakis’s departure clearance had been reinstated and that the Vessel was permitted to depart. Def.’s SMF 1173; PL’s Resp. SMF at 1; Def.’s Resp. SMF ¶31. In total, the Coast Guard withheld the Pappadakis’s departure clearance for nearly 5 months. See Def.’s SMF ¶¶ 64, 73; PL’s Resp. SMF at 1; Def.’s Resp. SMF ¶¶ 5-6, 31.
E.Present Action
On January 14, 2015, Angelex commenced the present action pursuant to 33 U.S.C. § 1904(h). See Compl. at 2, ECF No. 1; see also First Am. Compl. ¶ 87. The Government subsequently filed a motion to dismiss the Complaint in its entirety under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failing to state a claim upon which relief can be granted. Def.’s Mot. Dismiss, ECF No. 6. In ruling on that motion, the Court held that Angelex failed “to allege sufficient facts that, if true, state a plausible claim that the Coast Guard’s request that CBP withdraw the Pappadakis’s departure clearance was unreasonable.” Angelex Ltd. v. United States,
In October 2015, Angelex filed its First Amended Complaint. See First Am. Compl. The Government subsequently filed, along with its Answer, a Motion for Summary Judgment seeking to resolve the remainder of Angelex’s claim. Def.’s Mot. Summ. J. (“Def.’s Mot”), ECF No. 22. The Court denied the Government’s Motion for Summary Judgment without prejudice subject to renewal following' the close of discovery. See Minute Order (Nov. 25, 2015). Now that discovery has closed, the Government has renewed its Motion for Summary Judgment and Angelex has filed its own Cross-Motion for Summary Judgment.
III. LEGAL STANDARD
A court may grant summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed, R. Civ. P. 56(a). A “material” fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc.,
The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett,
IV. ANALYSIS
Very few facts are in dispute between the parties and .those that are in dispute are immaterial to resolving this case. An-gelex has been clear that, at this point in the proceedings, it-is “not seeking review of the Coast Guard’s exercise of its discretion to withdraw the Vessel’s departure clearance in the first instance,” but instead “seeking damages arising from the unreasonable delay of [the Vessel].” Pl.’s Reply at 3-4. Because the parties generally agree upon the circumstances of that delay, the central dispute between the parties is not a factual one, but a legal one. Specifically, what constitutes an “unreasonable” delay under 33 U.S.C. § 1904(h) and whether the Government’s continued withholding of the Pappdakis’s departure clearance resulted in such a delay. Based upon the undisputed record, the Court concludes that the Coast Guard’s actions did not result in an unreasonable delay of the Pappadakis.
A. Ships “Unreasonably” Delayed Under 33 U.S.C. § 1904(h)
This case presents a matter of first impression; what constitutes an “unreaso-nabl[e]” delay for purposes of 33 U.S.C. § 1904(h)? Despite squarely posing this novel issue, the ■ parties spend- very little effort assisting the Court in answering the question. Indeed, the parties spend most of their briefing arguing that the Government’s actions were reasonable or unreasonable without much explanation of how reasonableness should be judged within the context of the statute. ■
For its part, Angelex simply asserts that the Court should look to the plain meaning of -the word “unreasonable,” which it defines as “not governed by or acting according to reason; exceeding the bounds of reason or moderation.” Pl.’s, Reply at 5 (quoting Merriam-Webster), While it is certainly beyond argument that - words found in statutes should be interpreted using their ordinary, contemporary, common meaning, Perrin v. United States,
The Government, on the other hand, offers workable frameworks, but they too miss the mark. The Government argues that it should enjoy, one of two presumptions. First, the Government argues that the Coast Guard’s continued withholding of a departure clearance should be considered presumptively reasonable whenever there was.“reasonable cause” to withdraw the departure clearance in the first instance. See Def.’s Reply at 9-11. Moreover, according to the Government, this presumption should win the day “[ajbsent some fundamental change in the complexion of the evidence that led to- a finding of reasonable cause.”
The Court finds this argument flawed in several respects. First, this interpretation is unfaithful to the text of § 1904(h). Section 1904(h) clearly authorizes compensation for both unreasonable detentions and unreasonable delays. Yet the Government argues that the inquiry of unreasonable detentions should essentially subsume the inquiry.of unreasonable delays. In effect, only unreasonable detentions would ever be compensable, rendering the words “and delays” in the statutory text meaningless and without effect. Such a result is intolerable when other reasonable interpretations are' available; Indeed, basic cannons of statutory interpretation counsel that “statute[s] should be construed so that effect is given to all [of their] provisions, so that no part will be inoperative or superfluous, void hr insignificant ...." Hibbs v. Winn,
The Government’s presumption is myopically focused on the sufficiency of evidence underpinning a civil or criminal action and fails to take into account any other circumstances attendant with ■ the continued delay of a ship. The Government’s proposed presumption would conveniently exclude consideration of any bond amount or any other condition demanded by the Coast Guard in connection with the reinstatement of a departure clearance-issues that are now central to Angelex’s claim. In essence, the Government asks the Court to accept a presumption that would effectively foreclose judicial review of those conditions altogether.
The foreclosure of such review is both disfavored by case law and unsupported by the statutory scheme established by Congress. To start, it is worth noting that the D.C. Circuit, although it has never directly addressed the standard of review under § 1904(h), has expressed a skeptical view of the argument that the Coast Guard’s discretion under the APPS is unreviewable. See Watervale Marine Co. v. U.S. Dep’t of Homeland Sec.,
Here, Congress did not clearly prohibit judicial’ review. To the contrary, it explicitly propounded an unqualified requirement that any “detention or delay” of a vessel pursuant to the APPS not be “unreasonable]”' and made compensable any damages or injuries an unreasonable detention or delay might cause. See 33 U.S.C. § 1904(h). And even though Congress granted DHS and the Coast Guard with substantial discretion in. fashioning the conditions upon which a vessel’s departure clearance might be reinstated, it did not specifically exclude review of that power for purposes of suit brought pursuant to § 1904(h). See generally id. at §§ 1904(h), 1908(e). Nor did Congress more generally exclude review of claims based upon the exercise of discretion, see generally id. at §§ 1904(h), 1908(e), as Congress did. for the citizen suit provisions of APPS and has done for other statutes.
Moreover, MARPOL and the legislative history of the APPS further confirm that Congress did not intend the Coast Guard to police itself on matters such as this. Under Article 4 of MARPOL, whenever a violation occurs, one possible course of action for a signatory to the convention is to “cause proceedings to be taken in accordance with its law.” MARPOL Art. 4(2). However, MARPOL also requires that “[a]ll possible efforts should be made to avoid a ship being unduly detained or delayed.” Id. at Art. 7(1). Thus, “[wjhen a ship is unduly detained or delayed under article[ ] 4..., it shall be entitled to compensation for any loss or damage suffered.” Id. at Art. 7(2). When Congress enacted APPS, Congress made clear that it was adopting this framework. Indeed, the statute provides that “[a]ny action taken under [APPS] shall be taken in accordance with international law.” 33 U.S.C. § 1912. Furthermore, according to a congressional report, § 1904(h) was intended, “consistent with the requirements of international law[,] to prevent unilateral arbitrary actions and to provide some measure of control over potential abuse.” H.R. Rep. 96-1224, at 16 (1980), reprinted in 1980 U.S.C.C.A.N. 4849, 4863. Applying a presumption that would effectively foreclose judicial review of the bond and other non-financial conditions requested by the Coast Guard in connection with civil or criminal proceedings would therefore thwart Congress’s intent by affording no “measure of control over potential abuse” subsequent to the initial withdrawal of a departure clearance. Consequently, the Court rejects the Government’s invitation to espouse such a presumption.
The Government also argues for a different presumption. The Government emphasizes that “Congress has authorized DHS to negotiate terms ‘satisfactory to the Secretary* ” under § 1908. Def.’s Mot. at 38. It argues that, as a result, the “terms the agency proposed as satisfactory are reasonable as a matter of law” and should only be considered rebutted “with evidence to show that the proposed departure conditions are so inconsistent with the agency’s mission of implementing APPS that the Secretary should not have found them satisfactory.” Def.’s Mot. at 38. To be sure, Congress gave DHS and the Coast Guard wide discretion in setting the conditions for reinstating a vessel’s departure clearance, and that feature is significant in assessing the proper standard for review. But the Government goes too far when it suggests that any conditions can be reasonable so long as they do not generally depart from “the agency’s mission of implementing APPS.” The exercise of the Coast Guard’s power under § 1908 should most certainly comport with its mission to enforce the APPS, as opposed to other laws and* regulations. But requiring only an intention to somehow further enforcement. of the APPS in an abstract sense would divorce the power that Congress vested in the Coast Guard under § 1908 from the specific purpose for which Congress contemplated that power would be used. Thus, the Court finds the Government’s second argument to be wanting.
In contrast to the parties’ flawed proposals, the Court is convinced that reasonableness under § 1904 is properly understood as imposing an obligation on the Government to balance its own specific and legitimate enforcement interests with the interests of the vessel’s other stakeholders. This approach is far from novel. Indeed, in other contexts, courts routinely interpret statutory, regulatory, and constitutional commands for “reasonableness” as requiring a balance of relevant interests. See e.g., Scott v. Harris,
Therefore, in order to assess the reasonableness of the Coast Guard’s actions pursuant to § 1908(e), the Court must first discern the specific and legitimate governmental interest or interests involved. Section 1908(e), requires that a vessel’s departure clearance be withheld whenever there is “reasonable cause” to believe that the vessel violated the APPS .and then only authorizes clearance be granted upon the filing of a “bond or other surety satisfactory to the Secretary.” See 33 U.S.C. § 1908(e). The natural implication of this structure is that the bond and other conditions set by the Coast Guard are meant to secure whatever interest the Government originally had in denying the ship a departure clearance. That is, this regime ensures that the Government will be no worse off when it allows a vessel to sail because, by obtaining a bond and agreement with other terms and conditions, it has secured the same benefits that it otherwise would have enjoyed’,' According to a congressional report, the Government’s interest in withdrawing a vessel’s departure clearance is to “assure payment of any fine or civil penalties that might be incurred upon completion of criminal proceedings' or civil penalty actions.” H.R. Rep. 96-1224, at 17 (1980). This of course makes sense in the context of APPS because APPS makes any ship that violated the Act “liable in rem for any [criminal] fine ... or civil penalty” that might be assessed in connection with its violations. 33 U.S.C. § 1908(d). Thus, the Government naturally has an interest in withholding a departure clearance of a vessel through any civil or criminal proceedings so that it might later prosecute the vessel in rem and secure payment for any fines or penalties that were previously assessed. This interest, in turn, informs the Court’s understanding of the specific, legitimate governmental interests at issue when the Coast Guard imposes monetary and non-monetary terms and conditions for the reinstatement of a departure clearance under § 1908(e). That is, those terms and conditions are imposed to continue ensuring that fines or penalties assessed in future legal proceedings will be paid, even in the absence of the vessel.
That interest, however, must be balanced against those with an interest in the use and enjoyment of the vessel. Thus, when the Coast Guard’s exercise of power under § 1908(e) delays a vessel, the reasonableness of that delay should be assessed by inquiring whether the government’s actions exceeded its interest in “assuring payment of any fine or civil penalties that might be incurred upon completion of criminal proceedings or civil penalty actions.” H.R. Rep. 96-1224, at 17 (1980). Under circumstances where the Coast Guard’s demands exceed that interest, any resulting delay is necessarily unreasonable.
In weighing the governmental and private interests, however, the Court must be mindful of the significant discretion that Congress expressly vested in the Secretary to fashion the terms and conditions upon which a vessel’s departure clearance might be reinstated. See 33 U.S.C. § 1908(h); Watervale Marine Co.,
B. Pappadakis’s Ability to Satisfy Future Fines and Penalties
Although Angelex no longer contends that the Pappadakis was unreasonably detained in the first instance, it argues that the continued withholding, of the Vessel’s departure clearance was unreasonable because, in actuality, the Vessel provided no assurance that any fines or penalties would be satisfied. According to Angelex, the Vessel “was encumbered with a preferred ship mortgage” that exceeded the value of the ship and would allegedly “prime any potential judgment which could have been obtained by the government.” Pl.’s Cross-Mot. at 30-32. Given that, as Angelex contends, the Vessel did not in fact assure payment of fines and penalties in the future, the Coast Guard’s failure to consider this alleged fact resulted in an unreasonable delay of the Pappadakis. See Pl.’s Cross-Mot. at 32.
This argument, however, has little support either in the record or in the law. To start, the record before the Court contains only two documents evidencing a lien on the Pappadakis — both of which are emails from Angelex’s counsel to Coast Guard officials. See PL’s Cross-Mot., Exs. 3-4. Those documents simply provide counsel’s unsupported assertions that the Vessel, “is encumbered with $10.95 million in mortgage indebtedness.” Pl.’s Cross-Mot., Ex. 4; see also Pl.’s Cross-Mot., Ex. 3 (“[T]he vessel has an estimated market value of USD 6.5 million and operates with a mortgage indebtedness of nearly twice such amount.”). Because counsel’s statements amount to nothing more than unqualified hearsay, they do not establish the existence of any encumbrance. Greer v. Paulson,
C. The Government’s Decision to Refer Criminal Charges Against Angelex and Kassian
The bulk of the parties’ arguments are aimed at the Coast Guard’s conditions for reinstating the Pappadakis’s departure clearance. Broadly speaking, Angelex’s arguments fall into two categories: arguments relating to the financial terms of the bond and arguments relating to the nonfi-nancial terms of the Security Agreement. Before reaching these arguments, however, the Court must first address Angelex’s arguments concerning the Government’s decision to refer charges against Angelex and Kassian for APPS violations. As already discussed, the monetary and non-monetary terms are intended to ensure that the Government can collect fines and penalties that might be assessed in civil or criminal proceedings — in this case, a criminal proceeding against Angelex and Kas-sian. As such, both the bond amount and the nonfinancial conditions were predicated on the Government’s initial decision to refer Angelex and Kassian for criminal APPS charges. Thus, the Court must first consider Angelex’s challenge to this decision.
Angelex raises two points concerning the Government’s decision to refer charges against Angelex and Kassian for criminal APPS violations. First, it argues that the decision was unreasonable because Kas-sian could have no’criminal liability under the APPS. See Pl.’s Cross-Mot. at 27-29. Specifically, Angelex urges that there was no jurisdiction over Kassian because, contrary to the Government’s assertions, it was not the “operator” of the vessel and thus was not responsible for its actions when it arrived at the -port in Norfolk.
The reasonableness or unreasonableness of referring charges against An-gelex and Kassian is, in actuality, a question of whether probable cause existed. Indeed, probable cause is “competent evidence which induces a reasonable ground for the inference that the charges may be well founded.” Wilson v. Anderson,
In civil cases involving a factually disputed question of probable cause, the presence or absence of probable cause is ordinarily an issue left to the flnder-of-fact. See Davis v. Giles,
In this case, a grand jury returned an indictment in May 2013 charging both Kassian and Angelex with three violations of the APPS. See Def.’s SMF ¶ 68; Pl.’s Resp. SMF at 1; Def.’s Mot., Ex. 1. Contrary to Angelex’s arguments, the indictment specifically states that the Pappadak-is was “operated by Defendant [Kassian],” meaning it was subject to criminal liability for violations of the APPS. Def.’s Mot., Ex. 1 at § A.1, Moreover, it asserted that the Chief Engineer, “[a]t all times ... acted within the scope of his employment and agency on-behalf of, and for the intended benefit, at least in part, of Defendants [Kassian] and [Angelex],” Def.’s Mot., Ex. 1 at § C.l, thereby providing a basis for their vicarious liability. Thus, the grand jury indictment gives rise to a rebuttable presumption of probable cause. In the face of this presumption, it becomes Angelex’s burden to demonstrate that the indictment was procured through “fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith.” Moore,
Even if the grand jury -indictment were not dispositive of these issues, the Government’s referral decisions were reasonable. First, the Coast -Guard had sufficient evidence to reasonably believe that Kassian was the “operator” of the, Pappadakis.
The Coast Guard was also reasonable in' believing that the Chief Engineer had acted within the scope of his employment when he violated APPS. As noted above, Angelex advances two arguments. First, Angelex argues that there was no evidence that the Chief Engineer intended to benefit 'Angelex or Kassian. See PL’s Cross-Mot. at 18. It is true that' ⅛ agent’s acts will not be imputed to the principal in a criminal case unless the agent acts with the intent to' benefit the principal.” United States v. Sun-Diamond Growers of Cal.,
Angelex also points out however that the Coast Guardas investigation revealed that the Chief Engineer sought to conceal his conduct. See Pl.’s Cross-Mot, at 18. Indeed, the criminal investigator’s notes do reveal that some crewmembers claimed that the Chief Engineer instructed them not to mention the magic pipe either to the Coast Guard or even to the Captain of the Vessel. See Def.’s Mot., Ex. 12. Nevertheless, the Chief Engineer’s concealment of criminal conduct, even concealment from Angelex or Kassian, does not necessarily lead to the conclusion that the conduct was not meant to benefit them nor does it otherwise absolve them of potential criminal liability. As the D.C. Circuit has previously explained, “[w]here there is adequate evidence for imputation (as here), the only thing that keeps deceived corporations from being indicted for the acts of their employee-deceivers is not some fixed rule of law or logic but simply the sound exercise of prosecutorial discretion.” Sun-Diamond Growers of Cal.,
Based on the foregoing, the Court finds that thé Government’s decision to refer criminal charge against both" Angelex and Kassian with APPS violations was reasonable under the circumstances.
D. Financial Terms of the Bond
The Court now turns to the parties’ arguments over the financial bond that the Coast Guard requested. As a matter of first impression, the Court is persuaded that any bond amount up to and including the maximum fines and penalties that a criminal defendant could potentially face for APPS violations is reasonable as a matter of. law. “[T]he financial terms of a bond referred to in [the APPS] cover the ultimate liability of a ship owner [or operator], which can be determined only after a legal proceeding.” Watervale Marine Co. v. U.S. Dept. of Homeland Sec.,
In this case, the Coast Guard’s demand of a $2.5 million bond was reasonable. Angelex and Kassian were each charged with three criminal violations of APPS based on three calls to port in the United States while knowingly having failed to maintain an accurate oil record book. See Def.’s SMF ¶ 68; Pl.’s Resp. SMF at 1; Def.’s Mot., Ex. 1 (Counts 5-7). Each of those charges carried a potential fine of up to $500,000. See 18 U.S.C. § 3571(c); United States v. Seher,
Angelex argues that the bond amount set by the Coast Guard was unreasonable because, in setting the amount, the Coast Guard failed to consider several supposedly relevant factors. Specifically, Angelex contends the Coast Guard failed to consider: (1) “how a sentence might be imposed or charges might be grouped,” see PL’s Cross-Mot. at 21, (2) other recent surety demands in APPS cases, see Pl.’s Cross-Mot. at 21-22, (3) the ability of Angelex or Kassian to post the monetary bond,
But these arguments do not so much suggest that the Coast Guard’s monetary bond demand was unreasonable as much as they suggest that the amount was not the most reasonable or that the Coast Guard did not arrive at its bond amount in the most reasonable way. But this is not what is required. Congress vested the Secretary with broad discretion in this area and only mandated that the Coast Guard act reasonably. See 33 U.S.C. §§ 1904(h), 1908(e). This fact is significant. It suggests that a Court reviewing the Coast Guard’s determination should do so deferentially and should only question it when the Coast Guard sets a bond amount that itself falls outside the ambit of reasonable alternatives. Cf. Mach Mining, LLC v. EEOC, — U.S. -,
E. Terms and Conditions of the Security Agreement
.Statutorily, the Coast Guard may require certain non-financial conditions in addition to any bond amount that it might demand, In Watervale Marine Co. v. U.S. Department of Homeland Security,
In Watervale Marine Co., the non-financial conditions at issue were very similar to the conditions at issue in this case. Compare id. at 328 with Def.’s SMF ¶ 66; Pl.’s Resp. SMF at 1; Def.’s Mot., Ex. 7; see also Def.’s Renewed Mot., Ex. 42. However, in that case, the “appellants [had] not asserted that the nonfinancial conditions [were] unreasonable” and thus the court did not examine them for purposes of § 1904(h). Id. at 330-31. In the absence of a challenge, the Court “asswme[d] that holding the ships and crew until a civil or criminal proceeding was completed was reasonable.” Id. at 331 (emphasis added). Having assumed that the greater power to hold the ship until trial was reasonable, it reasoned that the lesser power, to condition the reinstatement of the departure clearance, must also be reasonable. See id. Although the conditions in this case might be similar to those in Watervale Marine Co., the Court cannot employ the same set of assumptions because, unlike the plaintiffs in that case, Angelex has specifically challenged the reasonableness of the nonfi-nancial conditions.
Nevertheless, the Court need not definitively decide the. reasonableness or unreasonableness of these conditions to resolve the current motions. While the reasonableness of the Coast Guard’s conditions is certainly relevant to the inquiry under § 1904(h), both parties ignore the fact that § 1904(h) only provides a remedy for unreasonable detentions or delays. See 33 U.S.C. § 1904(h). Thus, demand for unreasonable terms and conditions alone is not enough. Rather, § 1904(h) grants relief only if those unreasonable terms and conditions resulted in a delay. Here, even if the Court were to assume that some or all of the terms that .the Coast Guard demanded were unreasonable, there is no evidence that any of them were the cause of the Pappadakis’s delay. For example, even though Angelex argues that essentially all of the terms were unreasonable, there is no evidence that either Angelex or Kassian ever categorically refused any particular terms or even any combination of terms. Instead, the record suggests that any delay suffered by the Pappadakis resulted not from the nonfinancial conditions, but from the bond amount, which this Court has already found to be reasonable. Indeed, Angelex itself argues that the bond .amount set by the Coast Guard was beyond Angelex’s and Kassian’s financial mfeans. First Am. Compl. ¶ 41 (“The quantum demanded was also well in excess of Angelex’s financial ability to pay ,...”); First Am.-Compl. ¶50 (“Kassian’s finan-cials also clearly evinced its inability to meet the security quantum demanded .... ”). Moreover, the record suggests that the parties’ negotiations ‘focused heavily, if not entirely, on the bond amount rather than on the non-financial terms. See Def.’s Supplemental SMF ¶¶ 149-157; PL’s Resp. SMF at 1. In fact, Angelex admits that, during the initial litigation before Judge Doumar, Angelex and Kassian agreed that they would accept all of the non-financial conditions 'if the Coast Guard would be willing to lower the bond amount' to just $1.5 million. See PL’s Cross-Mot. at 25 (“During the May 6, 2013 hearing before District Judge Doumar, the parties reached a negotiated agreement, wherein Angelex (and Kassian) would agree to the non-financial terms and other conditions sought in exchange for the Coast Guard accepting a surety bond in the amount of USD 1,500,000.”); First Am. Compl. ¶¶ 56-58; Answer First Am. Compl. ¶ 58. This, of course, is entirely inconsistent with any notion that the non-financial terms of the Security Agreement were responsible for the Pappadakis’s delay. Consequently, the Government is entitled to summary judgment on this issue because the record admits of no causal link between the Security Agreement’s non-financial terms and the delay of the Pappadakis.
F. The Role of Customs and Border Protection
Finally, Plaintiff argues that CBP’s “failure to investigate the facts, circumstance, and /or basis for the continued delay to the [Pappadakis] and/or the Court Guard’s failure to provide any factual basis for the delay and demands at any time the Vessel was in the Port of Norfolk on CBP’s orders, was unreasonable.” Pl.’s Cross-Mot. at 16. But Angelex points to no statute, regulation, or other authority that requires CBP to conduct its own investigation or requires the Coast Guard to communicate its factual basis for its recommendation to CBP. See Pl.’s Cross-Mot. at 15-16. Indeed, any independent investigation conducted by CBP or any relay of factual support by the Coast Guard would be, at best, a pointless and superfluous exercise.
Angelex’s argument seems to rely on the faulty premise that CBP had some independent authority to issue or reinstate the Pappadakis’s departure clearance if, for some reason, it disagreed with the Coast Guard’s recommendation. APPS, however, makes clear that CBP has no such authority. Section 1908 provides that “if reasonable cause exists to believe that the ship, its owner, operator, or person in charge may be subject to a fine or civil penalty under this section,” that CBP, “upon request of [the Coast Guard] ... shall refuse or revoke [ ] clearance .... ” 33 U.S.C. § 1908(e) (emphasis added); Watervale Marine Co.,
V. CONCLUSION
For the foregoing reasons, the Court GRANTS the Government’s Renewed Motion for Summary Judgment (ECF No. 38); DENIES Angelex’s Cross-Motion for Summary Judgment (ECF No. 40); and DENIES AS MOOT the Government’s Motion to Strike (ECF No. 42). An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Notes
. Unless otherwise noted, this section recounts only facts that the parties do not dispute or facts substantiated by the record. See generally Pl.'s Resp. Def.’s Statement Material Facts ("Pl.’s Resp. SMF”) at 1-2, ECF No. 40-3 (admitting that certain facts and evidence supporting factual assertions are undisputed); Def.’s Resp. Pl.’s Statement Material Facts ("Def.’s Resp. SMF”), ECF No. 46-2 (admitting certain factual contentions); Answer First Am. Compl., ECF No. 21 (admitting certain factual contentions).
, Originally, APPS made each criminal violation subject to a fine of “not more than $50,000” for each violation. Act to Prevent Pollution from Ships, Pub. L. No. 96-478, § 9, 94 Stat. 2297 (1980). Congress later passed the Oil Pollution Act of 1990, which, among other things, "strengthened] penalties under a number of [] marine transportation safety laws, including penalties for ... the Act to Prevent Pollution from Ships .... ” H.R. Conf. Rep. No. 101-653 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 883.
. The Security Agreement provided, however, that Angelex and Kassian were not waiving any objections "they may have to the relevance or admissibility of the documents ..., or to the manner in which they were seized and removed, or to any other matter concerning the documents or things except their authenticity at the time of their seizure." Def.'s Mot., Ex. 7.
. Also pending before the Court is the Government’s Motion to Strike a declaration filed by Angelex’s attorney in support of its Cross-Motion for Summary Judgment. See Def.’s Motion Strike Decl. George M. Chalos, ECF No. 42. The declaration in question supports Angelex’s contention that, in order to post the Coast Guard’s bond, it would have been required to give a surety company cash representing the full amount of the bond to serve as collateral. See Declaration Attorney Goerge M. Chalos, ECF No. 40-2. Because the Court finds this fact to be immaterial to the Court’s analysis, the Court will deny the Government's Motion to Strike as moot. Even if the issue were material, however, the Court would have accepted the substitute affidavit proffered by Angelex.
. In making this argument, the' Government apparently relies on this Court's prior statement that “whether the Coast Guard had reasonable cause under Section 1908(e) is at the heart of whether the withdrawal of the Pappadakis’s departure clearance was reasonable under Section 1904(h).” Def.’s Reply at 10 (quoting Angelex v. United States,
. The Government concedes that “a section 1904 action such as this does not need to satisfy the. citizen-suit provisions set forth in section 1910,” Def.’s' Mot. at 13, and the Court has no reason to doubt this assertion.
. The Government argues that, ''[t]o the extent that the decision to prosecute underpins the decision to withhold the [Pappadakis's] departure clearance, judicial review is precluded,” Def.’s Renewed Mot. at 7. In so arguing, the Government relies on several cases that stand for the proposition that decisions to prosecute criminal matters constitute "discretionary functions” and therefore cannot be challenged in a suit against the Government under the Federal Tort Claims Act ("FTCA”). See Def.’s Renewed Mot. at 8-9. The "FTCA waives the sovereign immunity of the United States from suits for negligent or wrongful acts of government employees subject to certain exceptions” written into the statute. Moore v. Valder,
. The argument seems to be that, if Kassian was not the operator of the Vessel, it .would not have sufficient minimum contacts with the United States for the Court to assert personal jurisdiction over it.
. Angelex is quick, to point out that both it and Kassian were acquitted of all criminal charges. See PL’s Cross-Mot. at 18. An acquittal alone, however, does not necessarily demonstrate that the Government’s decision to refer charges was unreasonable. Whether, at the end of the day, the evidence presented at trial was insufficient to prove guilt beyond a reasonable doubt does not necessarily answer the question of whether the pursuit of criminal charges was, in the first instance, reasonable or unreasonable. Indeed, the mere fact that the Government might later be unsuccessful at trial should not alone — retrospectively — render unreasonable its earlier decisions to pursue charges against both Angelex and Kassian and to predicate its conditions of the bond and surety on the prospéct of obtaining criminal fines from those two defendants. This is apparently a notion that the Plaintiff agrees with. See Pl.’s Reply at 4 ("[T]he result of the underlying case has little, if any, bearing on whether the continued detention of the Vessel was reasonable ....”). But that is not to say that the acquittal is of no import. In fact, in cases where a conviction is achieved, a plaintiff seeldng recovery under § 1904(h) may be precluded from doing so if the basis for recovery, asserted by the plaintiff would impugn a lawful conviction. See Heck v. Humphrey,
. .In fact, Angelex admitted this to be the case during discovery in this matter. In its interrogatories, the Government asked who constituted the "operator” of the Pappadakis, which it defined consistent with the APPA, as anyone "who is responsible for the operation, . manning, victualing, and supplying of the vessel.” Def.’s Renewed Mot. at Ex. 32. Angelex responded that "[t]he ISM Manager, Kassian Maritime Navigation Agency Ltd., would be the 'Operator' under the definition set forth in the Act to Prevent Pollution from Ships.” Def.’s Renewed Mot. at Ex. 32,
. Under U.S. regulations, foreign-flagged vessels, such as the Pappadakis, are required to submit a Notice of Arrival to the U.S. Coast Guard 96 hours prior to the vessel’s arrival in a U.S port. See 33 C.F.R. §§ 160.205-.212. The notice must include the name-of the vessel’s registered owner and operator, 33 C.F.R. §§ 160.206(a)(1)(h), (vi), where "operator” is defined as "any person including but not limited to, an owner, a charterer, or any other contractor who conducts, or is responsible for, the operation of a vessel,” id. at § 160.202.
. Unlike many other crimes, the U.S. Sentencing Commission has not promulgated sentencing guidelines governing the setting of fines for violations of APPS. Instead, the U.S. Sentencing Guidelines simply instruct courts to determine an appropriate fine amount by applying the provisions of 18 U.S.C. §§ 3553 and 3572. See U.S. Sentencing Guidelines Manual § 8C2.10 (2016). Those statutes, in turn, require courts to consider , a litany of subjective factors, including for example, the “nature and circumstances of the offense”, the, “history and characteristics of the defendant”,, the size of a given defendant organization, "whether the defendant can pass on to consumers or other persons the expense of the fine,” and measures taken by an organization to discipline employees responsible for the offense. 18 U.S.C. §§ 3553(a), 3572(a).
. Angelex argues that the bond amount "exceeded the maximum fine which could have been imposed upon the Vessel in rem, even if the alleged acts were proven in a criminal trial.” Pl.'s Reply at 6. Angelex is mistaken. Section 1908(d) makes any "ship operated in violation of the MARPOL Protocol, Annex IV to the Antarctic Protocol, the [APPS], or the regulations thereunder ... liable in rem for any fine imposed under subsection (a).” 33 U.S.C. § 1908(d) (emphasis added). Subsection (a), in turn, makes it a felony for any "person” to violate those treaties, statutes, and regulations. See 33 U.S.C. § 1908(a). Thus, § 1908 clearly authorized the government to collect any criminal fines that might have been assessed against the owner, Ange-lex, and the alleged operator, Kassian, through an in rem proceeding against the Pappadakis. Indeed, this understanding is further confirmed by § 1908(e)’s requirement that the departure clearance be withheld anytime there is "reasonable cause" to believe that "the owner, the operator, or person in charge may be subject to a fine or civil penalty.” 33 U.S.C. § 1908(e) (emphasis added).
. On this point, it is worth noting that Ange-lex has provided very little evidence demonstrating that it was actually unable to pay the bond amount set by the Coast Guard. The logical mooring for Angelex's argument is that, if the Coast Guard had considered Ange-lex's and Kassian’s ability or inability to post the bond, it would have, or at least should have, resulted in some lower bond amount. That is to say that the consideration of Ange-lex’s and Kassian’s financial status would have necessarily yielded some different result. Thus, the argument is premised on the notion that Angelex and Kassian were, in fact, unable to post the bond. But the record evidence supporting that assertion is decidedly sparse. Indeed, the only evidence identified by Ange-lex are two emails from its counsel to the Coast Guard which assert that Angelex is "in a dire financial condition” and that Kassian "owns no significant assets” and "makes no significant net annual profit.” See PL’s Cross-Mot., Exs. 3-4. Although these emails also purport to attach Angelex’s financial statements, see Pl.’s Cross-Mot., Exs. 3-4, no such statements or any other financial information actually appears in the record. Thus, the only record evidence supporting Angelex’s claim that it could not pay the bond amount are the hearsay statements of counsel. As discussed above, these hearsay statements mean nothing on a motion for summary judgment. See Greer,
Moreover, even if Angelex's claims that neither it nor Kassian could pay were true, assessing these claims would appear to be an exceptionally difficult task for the Coast Guard to accomplish. Indeed this would require the Coast Guard to assess the financial soundness of foreign. entities that the Coast Guard claims are "often intentionally-opaque, privately-held overseas companies.” Def.’s Reply at 14. Such a task may be nigh impossible given that the Coast Guard has no discovery tools to compel the production of relevant information and this analysis would have to be performed under very tight time constraints.
This case illustrates precisely the challenges that the Coast Guard faces in this regard. According to the Coast Guard, both Kassian and Angelex are private companies and very little public information is available about them. Def.'s Renewed Mot. at 22. While Ange-lex did supposedly provide some financial information about itself to the Coast Guard, the Coast Guard claims (and Angelex does not dispute) that Angelex did not provide information concerning the financial wherewithal of its parent organizations to which capital could be effectively channeled. Def.'s Renewed Mot. at 22. Even Angelex’s own finances raised questions. In fact, during negotiations between the Coast Guard and Angelex concerning the bond amount, Angelex’s free cash reserves allegedly grew from $174,000 to $770,000 in the course of only two days. Pl.'s Resp. SMF ¶ 150-151; PL’s Cross-Mot., Exs 3-4. Later, Angelex claimed that it may have the ability to provide a bond in the amount of $1.5 million. PL's Resp. SMF ¶ 155. All of these matters raise questions that would have to be answered in order to assess Angelex’s financial situation, but it is hard to understand how the Coast Guard could reasonably accomplish this under the relevant time constraints and without means of verifying Ange-lex’s financial claims.
. In addition to its arguments about the factors the Coast Guard failed to consider, An-gelex also argues that the Coast Guard unreasonably delayed the Pappadalds when it refused the tentative agreement between An-gelex and Coast Guard counsel in May 2013 to reduce the bond amount to $1.5 million. See Pl.'s Cross-Mot. at 25-26. But counsel’s willingness to accept a lower amount, whether it is ultimately approved or not, does not carry with it the necessary implication that the $2.5 million bond was unreasonable. The statutory framework does not require that the Coast Guard's lawyers be satisfied, rather it requires the posting of a bond or other surety “satisfactory to, the Secretary.” 33 U.S.C. § 1908(e). Thus, this argument lacks merit.