Hornof v. United States

107 F.4th 46

Jaroslav HORNOF, a resident and citizen of the Czech Republic;Damir Kordic, a resident and citizen of Croatia; Lukas Zak,a resident and citizen of the Slovak Republic, Plaintiffs, Appellants, v. UNITED STATES; United States Department of Justice; United States Coast Guard;United States Department of Homeland Security; Shane N. Waller,a former employee of the United States Department of Justice; John D. Cashman,an employee of the United States Department of Justice; Richard Udel, an employee of the United StatesDepartment of Justice; Michael A. Fazio, Commander, First Coast GuardDistrict of the United States Coast Guard; Michael Baroody, Captainand Commanding Officer, United States Coast Guard, Sector Northern New England;Jon D. Lavallee, Lieutenant, First Coast Guard District Legal Office;Mark Root, Special Agent, United States Coast Guard Investigative Service;Christy Doyle, a citizen of Maine employed by the United States Customsand Border Protection; Shannon True, a citizen of Maine employedby the United States Customs and Border Protection, Defendants, Appellees,Keith Fleming, Port Director, Custom and Border Protection, South Portland, Maine, Defendant.

No. 23-1761

United States Court of Appeals, First Circuit

July 15, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Jon D. Levy, U.S. District Judge]

Edward S. MacColl, with whom Marshall J. Tinkle, and Thompson, Bull, Bass & MacColl, LLC, P.A., were on brief, for appellants.

Anne Murphy, Attorney, Appellate Staff, Civil Division, United States Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Darcie N. McElwee, United States Attorney, and Charles W. Scarborough, Attorney, Appellate Staff, were on brief, for appellees.

Before Kayatta, Howard, and Gelpí, Circuit Judges.

GELPÍ, Circuit Judge.

Jaroslav Hornof ("Hornof"), Damir Kordic ("Kordic"), and Lukas Zak ("Zak") (collectively, "Plaintiffs") were crewmembers aboard the MARGUERITA, a vessel that was allegedly unlawfully disposing of bilge water and improperly keeping records. The MARGUERITA was held in-port in Maine, and Plaintiffs were ordered to remain in the United States as potential material witnesses to the wrongdoing. Plaintiffs were later permitted to leave the United States, returned for trial, and were awarded for their contributions to conviction. As a result of their detention and parole order to remain in the United States, Plaintiffs filed suit under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act ("FTCA"), against the United States, the United States Department of Justice ("DOJ"), the United States Coast Guard ("Coast Guard"), the United States Department of Homeland Security ("DHS"), and nine Government Officials in their individual capacities (collectively, "Government" or "Defendants").¹ The district court dismissed the Bivens claim and entered summary judgment for Defendants on the FTCA claims. Plaintiffs timely appealed, arguing that the district court erred in the dismissal and entry of summary judgment. We disagree and affirm.

I. Background

A. Statutory Background

The United States is a party to the 1973 International Convention for the Prevention of Pollution from Ships and the Protocol of 1978, which combined are referred to as MARPOL, short for marine pollution. United States v. Vastardis, 19 F.4th 573, 577 (3d Cir. 2021); United States v. MST Mineralien Schiffarht Spedition Und Transport GmbH, No. 2:17-cr-117, 2018 WL 522764, at *2 (D. Me. Jan. 22, 2018); International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 1340 U.N.T.S. 184; Protocol of 1978, Feb. 17, 1978, 1340 U.N.T.S. 61. The objective of MARPOL is to "achieve the complete elimination of international pollution of the marine environment by oil and other harmful substances." Protocol of 1978, supra, 1340 U.N.T.S. at 128. The United States enforces MARPOL through federal statute, APPS, criminalizing violations of MARPOL. MST, 2018 WL 522764, at *2; Vastardis, 19 F.4th at 577. Whistleblowers are incentivized to report APPS and MARPOL violations because 33 U.S.C. § 1908(a) specifically states that, "[i]n the discretion of the [c]ourt, an amount equal to not more than 1/2 of such fine may be paid to the person giving information leading to conviction." In addition, APPS authorizes the Coast Guard² to "prescribe any necessary or desired regulations to carry out the provisions of . . . MARPOL." 33 U.S.C. § 1903(c)(1); see also 33 C.F.R. § 151.01.

One federal regulation at issue is 33 C.F.R. § 151.25, the "Oil Record Book" regulation. The regulation states that a "ship of 400 gross tons and above . . . shall maintain an Oil Record Book" kept "readily available for inspection at all reasonable times." 33 C.F.R. § 151.25(a), (i). Entries must be made in the Oil Record Book whenever there is "[d]ischarge overboard or disposal otherwise of bilge water that has accumulated in machinery spaces." 33 C.F.R. § 151.25(d)(4). The entries must be "fully recorded without delay" and "signed by the person or persons in charge of the operations" and "the master or other person having charge of the ship." 33 C.F.R. § 151.25(h). APPS only applies to foreign-flagged ships "in the navigable waters of the United States, or while at a port or terminal under the jurisdiction of the United States." 33 C.F.R. § 151.09(a)(5); see also 33 U.S.C. § 1902(a)(2). Flag states, meaning the country or countries where the ships are registered, are responsible for enforcement of MARPOL violations that occur in international waters. United States v. Ionia Mgmt. S.A., 555 F.3d 303, 308 (2d Cir. 2009) (discussing law of the flag doctrine).

Furthermore, 8 C.F.R. § 252.1, titled "Examination of crewmen," requires detention of "[a]ll persons employed in any capacity on board any vessel or aircraft arriving in the United States . . . by the master or agent of such vessel or aircraft until admitted or otherwise permitted to land by an officer of the Service." 8 C.F.R. § 252.1(a). Federal regulation 8 C.F.R. § 212.5, titled "Parole of aliens into the United States," outlines when and how noncitizens can be paroled. 8 C.F.R. § 212.5(a), (c)-(d).

B. Facts

The following facts are undisputed unless noted otherwise. In 2017, Plaintiffs were working aboard the MARGUERITA, registered in the Republic of Liberia, the crew of which were not United States citizens nor residents.³ The MARGUERITA was owned by Reederei MS "Marguerita" GmbH & Co., and operated by MST Mineralien Schiffahrt Spedition und Transport, GmbH (collectively "MST").⁴ Hornof noticed that the MARGUERITA's pollution-control system had been altered, allowing unfiltered, dirty bilge water to flow directly into the ocean. He realized that the Chief Engineer of the MARGUERITA was making false entries into the Oil Record Book. Hornof documented his discovery through pictures, videos, and notes, confronting the Chief Engineer about the activity. The Chief Engineer ignored Hornof's concerns, and when Hornof reported the issue to the MARGUERITA's Captain, the Captain told Hornof that the Chief Engineer reported that everything was being conducted and documented correctly. Hornof then reported his concerns to an MST superintendent.

MST was already on probation in the United States for committing environmental crimes and was required to report any wrongdoing on its vessels. MST informed United States officials of the alleged wrongdoing and reported that the MARGUERITA would be audited by a third party when it arrived in Brazil. The audit confirmed Hornof's account. MST informed the Coast Guard of the allegations and audit as a "Voluntary Disclosure," providing that the situation was "fully, accurately and contemporaneously memorialize[d]" in the vessel's Oil Record Book.

The MARGUERITA arrived in Portland, Maine on July 7, 2017, where United States Customs and Border Protection ("CBP") officials boarded the vessel and granted Plaintiffs temporary landing privileges.⁵ The Coast Guard also boarded the MARGUERITA to conduct a Port State Control Inspection and found that one or more Oil Record Book entries were inaccurate or missing, thereby concluding that a detailed and thorough "MARPOL examination" was needed. Later that day, additional Coast Guard members boarded the vessel and began the MARPOL examination which included speaking with the crewmembers about the bilge water concerns.⁶ While speaking with Coast Guard officials, "Hornof recounted his discovery of the bilge water discharge system, played the video he had taken of the pumps and hoses used in the discharge operation, and showed officials the equipment used to bypass the [pollution-control system]."

After the MARPOL examination, the Coast Guard requested that the MARGUERITA and its crew be placed on customs hold pursuant to 33 U.S.C. § 1908(e), as the Coast Guard had determined it had probable cause to believe that unlawful violations occurred, identifying material witnesses. On July 8, 2017, the vessel's departure clearance was denied and Plaintiffs' conditional landing permits were revoked and replaced with new Form I-95s denying their permission to land temporarily. CBP gave the MARGUERITA's shipping agent a Form I-259 ("Notice to Detain, Remove, or Present Alien"), requiring detention of the crew aboard the vessel, and the witnesses identified were designated as "mala fide."

Plaintiffs remained on board the MARGUERITA from July 8 to July 16, 2017. On July 12, Government officials and MST received the auditor's report and referred the matter to the DOJ for criminal prosecution. The Coast Guard's investigation concluded on July 15. On July 14, the Coast Guard and MST negotiated an Agreement on Security ("Agreement") pursuant to 33 U.S.C. § 1908(e) requiring MST to request the crewmembers who were identified as potential witnesses to surrender their...