WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, and Plaintiffs' Emergency Rule 37 and Rule 26(b) Motion or in the Alternative Plaintiffs' Motion for a Continuance (ECF No. 207).
On May 4, 2007, Plaintiffs
On June 5, 2008, the United States filed a Motion to Dismiss for lack of subject matter jurisdiction on the ground that the United States had not waived sovereign immunity. (ECF No. 31). Defendant asserted that the PVA is the sole waiver of sovereign immunity with respect to Plaintiffs' action; that the PYA is subject to the same discretionary function exception to the limited waiver of sovereign immunity included in the SSA; and that the law of the case established that discretionary function exception is a bar to the waiver of sovereign immunity in this case.
On September 19, 2008, this Court dismissed the First Amended Complaint for lack of subject matter jurisdiction. (ECF No. 57). The Court concluded that the Alien Tort Act, the Convention on the Law of the Sea, the ICCPR, and the Manta Agreement were not valid bases for subject matter jurisdiction. Id. at 9-12. The Court concluded "that the SAA is not a valid basis for subject matter jurisdiction because the discretionary function exception to the United States' waiver of sovereign immunity under the SAA applies, retaining the sovereign immunity of the United States under the SAA." (ECF No. 57 at 7). The Court concluded "that the PVA is not a valid basis for subject matter jurisdiction because Plaintiffs have not demonstrated reciprocity, which is a jurisdictional prerequisite to the wavier of sovereign immunity under the PVA." Id. at 9.
On October 22, 2008, Plaintiffs filed a notice of appeal from the order dismissing the First Amended Complaint for lack of subject matter jurisdiction. (ECF No. 59). On April 21, 2011, the Court of Appeals for the Ninth Circuit issued an order affirming in part, vacating in part, and remanding. The Court of Appeals affirmed this Court's Order that the Alien Tort Statute, the Convention on the Law of the Sea, the ICCPR, and the bilateral treaty concerning the use of an Air Force base at Manta, Ecuador did not waive sovereign immunity. Tobar v. U.S., 639 F.3d 1191 (2011) ("Tobar I"). The Court of Appeals concluded that the Military Claims Act did not waive sovereign immunity. Id. at 1196. With regards to the PYA, the Court of Appeals stated, "if a claim falls within the scope of the PYA, the plaintiff must meet the reciprocity requirement of the PVA, regardless of the type of claim the plaintiff asserts — PVA, SAA, or FTCA." Id. at 1197. The Court of Appeals stated that the PYA contains the following reciprocity requirement: "A national of a foreign country may sue under the PVA only if the government of that foreign country would permit a United States national to bring the same suit in its courts." Id. at 1196. The Court of Appeals stated,
Id. at 1200. The Court of Appeals remanded the case.
On March 13, 2012, this Court issued an order requiring" the parties to fully brief the issue of whether the discretionary function exception applies to the Public Vessels Act and would require dismissal of this action independent of any ruling as to reciprocity." Id. at 5. On June 13, 2012, this Court issued an order holding,
(ECF No. 100 at 11).
On July 12, 2012, Plaintiffs filed a notice of appeal from that Order. On September 25, 2013, the Court of Appeals for the Ninth Circuit issued an order affirming in part, vacating in part, and remanding. Tobar v. U.S., 731 F.3d 938 (2013) ("Tobar II"). As to the issue of reciprocity, the Court of Appeals held,
Id. at 949. With regards to the discretionary function exception of the PVA, the Court of Appeals stated,
Id. at 946-48 (footnotes omitted). The Court of Appeals remanded the case concluding,
Id. at 949.
The Court set a bench trial in this matter for October 14, 2015. On September 24, 2015, Plaintiffs filed an Emergency Rule 37 and Rule 26(b) Motion or in the Alternative Plaintiffs' Motion for a Continuance. (ECF No. 207). Plaintiffs explained that on September 16, 2015 Plaintiffs "obtained a written agreement . . . between the governments of the United States and Ecuador which heretofore has not been produced by Defendant." (ECF No. 212 at 3). Plaintiffs attached a document titled "OPERATIONAL PROCEDURES FOR BOARDING AND INSPECTING VESSELS SUSPECTED OF ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES AND OF SMUGGLING MIGRANTS BY SEA" signed by Admiral Eduardo Navas Nájera and Rear Admiral Wayne Justice on August 20, 2006 ("the 2006 Agreement").
On October 8, 2015, the Court granted Plaintiffs' motion in part and denied it in part. (ECF No. 216). The Court ordered that the trial go forward as scheduled, on October 14, 2015, "as to all issues of liability as to all Plaintiffs." Id. at 2. The Court stated that, in the event that the Court found liability, "the Court will consider whether additional discovery and further hearing will be required in order to determine the proper award of damages." Id.
On October 14-16, 2015, the Court held the bench trial (ECF No. 219, 220, 221). On October 30, 2015, the Court ordered the parties to appear on December 11, 2015 for an evidentiary hearing "with all necessary witnesses and exhibits" "to determine whether Defendant failed to comply with discovery obligations under Rule 26 and whether any additional undisclosed agreements existed prior to the 2006 Agreement" (ECF No. 228). On December 11, 2015, the Court held an evidentiary hearing. (ECF No. 232).
On January 8, 2016, Plaintiffs filed supplemental briefing in support of their emergency motion (ECF No. 236) and briefing regarding liability (ECF No. 237). On February 18, 2016, Defendant filed responses. (ECF Nos. 238, 239). On February 26, 2016, Plaintiffs filed replies. (ECF Nos. 240, 241).
On March 18, 2016, the Court held closing arguments on the liability. (ECF No. 243).
An Unclassified For Official Use Only document ("FOUO"), admitted at trial as Plaintiffs' Exhibit 9
A Department of Homeland Security information report, admitted as Plaintiffs' Exhibit 10, states that on October 4, 2005, a United States Coast Guard Law Enforcement Detachment ("LEDET") embarked on the McCLUSKY boarded the JOSE ANTONIO. The report states that the LEDET "located and tested white powdery substance secreted in net floats, using narcotics identification kit, which tested positive for a controlled substance." Id. The report states that the LEDET "discovered two half kilo-sized bricks of contraband hidden/secreted inside the net floats, which tested positive twice using the Becton Narcotics Identification Test Kit, for a controlled substance." Id. The FOUO states that after conducting an extensive pier-side search of the JOSE ANTONIO, the officers and crew of the McCLUSKY discovered approximately 5,300 pounds of cocaine valued at $169 million dollars on the JOSE ANTONIO. (Ex. 9).
On October 5, 2005, the McCLUSKY approached the JOSTIN, which was no longer located near the JOSE ANTONIO. The Case Log states that the JOSTIN was "sighted 3X with no fishing" and had multiple fuel containers onboard. (Ex. 15). The Case Log states that the JOSTIN was towing five "pangas" (smaller boats), each with "whip antennas." Id. When the McCLUSKY contacted the JOSTIN by radio, the JOSTIN stated that the master of the ship's name was "Washington Luca Franco." (Ex. I, Tr. 294:3-5 (Bertheau)). The Situational Report states that the JOSTIN told the McCLUSKY that it was carrying approximately 5,000 pounds of dorado fish and shark onboard, which was "not consistent with [the] stated length of voyage." (Ex. 4A). Lieutenant Commander Torrey Bertheau, the deployable team leader for the LEDET, testified that based on the pangas in tow, "the amount offish on board, and how long they had been underway . . . and the location and the flag of the vessel," he recommended that the Coast Guard "attempt to conduct a boarding on" the JOSTIN. (Tr. 295:14-25).
Based on Bertheau's recommendation to conduct a boarding of the JOSTIN, Lieutenant Commander Lawrence K. Ellis, U.S. Coast Guard Attaché, wrote to Rear Admiral Eduardo Navas Nájera asking for permission to board the JOSTIN. This letter, dated October 5, 2005, admitted as Plaintiffs' Exhibit 2, contained the following language ("the 2005 Agreement"):
(Ex. 2). The Case Log indicates that the Ecuadorian government granted the McCLUSKY permission to board and search the JOSTIN. (Ex. 15 at 2). In her deposition, admitted as Plaintiffs' Exhibit 28, Plaintiff Rosa Zambrano Lucas, one of the boat owners, testified that she gave permission for the boarding of the JOSTIN prior to the Coast Guard barding the ship. (Ex. 28, 28: 16-30:12).
On October 6, 2005, the LEDET from the McCLUSKY, lead by Lieutenant Commander Bertheau, boarded the JOSTIN. Once onboard, Plaintiff Joffre Cedeno told the LEDET that he was the captain of the vessel,
A Drug Enforcement Administration ("DEA") report ("DEA Report") created by DEA Agent Gerard Dauphinais, admitted as Plaintiffs' Exhibit 8, states that Cedeno did not know the type of engine nor the horsepower used to power the JOSTIN. (Ex. 8 at 2). The DEA Report states that Cedeno told the LEDET that the JOSTIN was a fishing vessel and that it had been out at sea for approximately 20 days. Id. The DEA Report states that Cedeno stated that his crew used a machete to behead its catch prior to taking it to the cooler below deck. Id. Upon inspection of the fish hold, the LEDET observed that there were approximately half the amount offish that Cedeno had stated, all of the fish were intact, the machete was dulled and rusted, and there was not enough ice to keep the fish cold. (Exs. 4A, 8, 15).
During a limited search of the JOSTIN at sea, the LEDET conducted a non-intrusive inspection of a fuel tank using a boroscope. The Situational Report states that after inserting the scope approximately six to eight inches into the fuel, the scope's view and movement were blocked by a bright blue obstruction. (Ex. 4A at 2). The DEA Report states that based on the prior intelligence and the discovery of the extra fuel tanks, the LEDET determined that the JOSTIN warranted a thorough anti-narcotics inspection. (Ex. 8). The DEA Report states that the LEDET concluded that for safety reasons, a 100% space accountability inspection of the JOSTIN could not be done at sea and could only be done at a pier-side location. Id.
A letter dated October 6, 2005, admitted as Plaintiffs' Exhibit 3, states that Lieutenant Commander Lawrence K. Ellis requested permission from Rear Admiral Eduardo Navas Nájera to escort the JOSTIN together with the JOSE ANTONIO to Puerto Bolivar. (Ex. 3). Plaintiffs' witness, Ecuadorian Naval Captain Carlos Rivera testified that the procedure "was that the US vessel would escort the suspicious vessel to a certain point where an Ecuadorian Coast Guard would be in charge and escort it to the dock." (Tr. 109:8-11). An Ecuadorian Chain of Custody Transfer document signed by Rear Admiral Eduardo Navas Najera and Captain Bolivar Sanchez Soñudo, admitted as Defendant's Exhibit O, suggests that the Coast Guard deliver the JOSTIN and the JOSE ANTONIO to a rendezvous location about 20 nautical miles off Puerto Bolivar. (Ex. O at 2).
Lieutenant Bertheau testified at trial that on October 13, 2005 the JOSTIN and its crew members were transferred to Captain Erik Benitez, of the Ecuadorian police, and that he saw Captain Benitez sign the transfer document, DD Form 1149. (Tr 306). The transfer document, DD Form 1149, admitted as Defendant's Exhibit A, signed by Captain Benitez indicates that the JOSTIN and the crew of the JOSTIN were transferred to the Ecuadorian police on October 13, 2005. (Ex. A). The Case Log also states,
(Ex. 15 at 5). At trial, Plaintiffs' witness, DEA Agent Dauphinais, testified that he boarded the JOSTIN on October 13, 2005 and that he was the only DEA agent onboard. (Tr 263). DEA Agent Dauphinais testified that he did not conduct a search of the JOSTIN or the crew on behalf of the DEA. (Tr. 262: 14-20; 264: 8-13). DEA Agent Dauphinais testified that there was no point in time that the DEA took custody of the vessel. (Tr 263: 18-22). DEA Agent Dauphinais testified that if anyone had custody of the vessel or the crew, it would have been some agency of the Ecuadorian government. Id. at 263: 23-25.
The DEA report states,
(Ex. 8 at 3). The DEA Report states that during the search, the Ecuadorian National Police inspected Cedeno's cellular telephone. Id. at 4. Although outgoing messages could not be read, there were two incoming messages that "were particularly interesting." Id. In one of them, the sender wrote, "Please tell him that they do not have anything to worry about." Id. A second incoming message received shortly thereafter stated, "Good, you worked fast." Id. The Situational Report states,
Id.
Lieutenant Commander Torrey Bertheau testified that his boarding team did not cause any physical damage to the JOSTIN prior to transferring the JOSTIN to Captain Eric Benitez of the Ecuadorian police. Id. at 307:4-11. DEA Agent Dauphinais testified that he did not see any damage done to the JOSTIN, and that he did not cause any damage to the JOSTIN. (Tr. 256, 262-63). A naval message dated October 24, 2005, Plaintiffs' Exhibit 7 which was admitted at trial, states that on or about October 15, 2005, the JOSTIN was released and sailed out under her own power.
On December 11, 2015, the Court held an evidentiary hearing "to determine whether Defendant failed to comply with discovery obligations under Rule 26 and whether any additional undisclosed agreements existed prior to the 2006 Agreement." (ECF No. 228). The Court had ordered the parties to appear "with all necessary witnesses and exhibits." Id.
At the hearing, the 2006 Agreement, a document titled "OPERATIONAL PROCEDURES FOR BOARDING AND INSPECTING VESSELS SUSPECTED OF ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES AND OF SMUGGLING MIGRANTS BY SEA" signed by Admiral Eduardo Navas Nájera and Rear Admiral Wayne Justice, previously admitted at trial as Plaintiffs' Exhibit 33, was admitted into evidence. (Ex. 33; ECF No. 230-Tr. 379:1-21). The 2006 Agreement was signed by both parties on August 30, 2006, more than ten months after the boarding of the JOSTIN on October 5, 2005. (Ex. 33). Plaintiff did not produce any other witnesses or documents.
Defendant called Brad Kieserman who testified that he had worked in the Coast Guard Office of Maritime and International Law from 2000-2001. (ECF No. 242 at 7:17-21). Kieserman then worked as the legal advisor to the chief of law enforcement from 2001 until "probably 2004 or 5." Id. Kieserman testified that after that he "became the person in charge of the office." Id. Kieserman testified that the office where he worked beginning in 2001 "ran the national level program for maritime law enforcement interdiction operations generally and drug interdiction specifically." Id. at 8:5-7. Kieserman testified that he became "chief of operational law" in 2005 or 2006. Id. at 8:9-16. Kieserman testified that while he worked at that office, he had three basic roles,
Id. at 9:2-9. Kieserman testified that he was "personally aware of the arrangements and agreements between the United States and Ecuador on maritime interdiction matters, and there were no agreements in place bilaterally or arrangements bilaterally during August of 2005 or any time previous to that." Id. at 13:10-18. Kieserman testified that he drafted the 2005 Agreement, admitted at trial as Plaintiffs' Exhibit 2, as an ad hoc agreement for use in multiple boardings that the United States requested the Ecuadorian authorities to authorize. Id. at 18:2-22. Kieserman testified that he was "not aware of any other forms or documents that were used to — to negotiate any portion of the Jostin boarding other than this [2005] letter, and there were no forms in effect at that time that were being used between the Ecuadorian Navy and the Coast Guard." Id. at 19:13-17.
When asked about the revision date, "REV: 07/09/2006," at the top right comer of the 2006 Agreement, Kieserman testified that the United States "began the use of forms with Columbia in the early 2000s, as a way of expediting this process." Id. at 23:20-28. Kieserman further testified that the 2006 Agreement used with Ecuador was an "evolution" of the same forms used in other countries. Id. at 23: 14-24: 16. Kieserman testified that until the 2006 Agreement was signed by Admiral Navas, "those forms could not be used." Id. at 26: 19-27:4. Kieserman testified that the 2006 Agreement "was the first opportunity I had to inform my team and the US interagency that the operational procedures with Ecuador and all of its form processes were in effect, and in fact, we used them about 15 minutes after the document was signed because we found a vessel at sea and began using them immediately on August 30th." Id. at 26:3-8.
Based on the evidence presented at the evidentiary hearing, the Court finds that the 2006 Agreement went into effect after it was signed by Admiral Eduardo Navas Nájera and Rear Admiral Wayne Justice on August 30, 2006. The Court finds that there were no prior versions of the 2006 Agreements in effect with Ecuador prior to August 30, 2006. The Court finds that the only agreement in effect when the JOSTIN was boarded on October 5, 2005 was the 2005 Agreement, which was the letter signed by Lieutenant Commander Ellis that was addressed to Rear Admiral Navas. (Ex. 2). Plaintiffs' emergency motion for additional discovery is denied.
The United States, as a sovereign, is immune from suit. United States v. Mitchell, 445 U.S. 535, 538 (1980). A federal district court only has subject matter jurisdiction over a suit against the United States when sovereign immunity has been waived. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 435 (1989). The Public Vessels Act ("PVA") waives sovereign immunity for suits for "damages caused by a public vessel of the United States," 46 U.S.C. § 31102(a)(1), with the following reciprocity requirement,
46 U.S.C. § 31111. In Tobar II, the Court of Appeals found that "[t]he government's waiver of sovereign immunity is not barred by the reciprocity requirement" in the PVA. 731 F.3d at 949. The Court of Appeals also found that "[t]he government's wavier of sovereign immunity also is not barred by the discretionary function
The 2005 Agreement is a letter between a United States Coast Guard officer, Lieutenant Commander Lawrence K. Ellis, US. Coast Guard Attaché, and the Ecuadorian Government official, Rear Admiral Eduardo Navas Nájera. The 2005 Agreement is not an agreement between the United States and Plaintiffs. Assuming that the US. Coast Guard or an individual member of the U.S. Coast Guard had the requisite authority necessary to formally bind the United States, creating a judicially enforceable private right of action cognizable in federal courts
The Complaint alleges that Plaintiffs "filed a claim for injuries with the United States Navy and Coast Guard" and that the government took no action on that claim within six months, "tantamount to denial of the claim." (ECF No. 28 at 5). A letter from G.D. Owen, Chief, Claims and Litigation Branch of the United States Department of Homeland Security, dated September 1, 2006, admitted at trial as Defendant's Exhibit Q., states,
A letter from Plaintiffs' counsel to G.D. Owen, dated October 5, 2006, admitted as Defendant's Exhibit states,
At trial, Defendant's witness Lieutenant Commander Torrey Bertheau credibly testified that he helped execute the custodial transfer of the JOSTIN from the Coast Guard to the Ecuadorian authorities on October 13, 2005. Bertheau credibly testified that in preparation for the transfer of custody he completed the Transfer Form, met in person with Captain Eric Benitez of the Ecuadorian police, and witnessed Captain Benitez sign the Transfer Form. Plaintiffs' witness DEA Agent Gerard Dauphinais credibly testified that there was no point in time that the DEA took custody of the JOSTIN and that he never conducted a search of the JOSTIN. Both Bertheau and Dauphinais credibly testified that they did not cause or see any damage to the boat Dauphinais also testified that he did not see the Ecuadorian National Police do any physical damage to the vessel while she was at sea or at the pier in Puerto Bolivar. A naval message dated October 24, 2005, Plaintiffs' Exhibit 7, stated that on or about October 15, 2005, the JOSTIN was released and sailed out under her own power. The Court concludes that on October 13, 2005, the custody of the JOSTIN was transferred from the Coast Guard to the Ecuadorian National Police. The Court concludes that Plaintiffs did not establish by a preponderance of the evidence that the JOSTIN sustained any damages or losses while it was in the custody of the Coast Guard.
The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) defines "illicit traffic" as committing any of the offenses listed in Article 3 of the Convention. 28 I.L.M. 493, 499 (1989). Article 3 offenses include any action engaging in the possession, manufacture, distribution, transit, import, export or trade in prohibited substances, as well as any activity "aiding, abetting, facilitating and counseling the commission of any of the offences established in accordance with this article." Id. at 501.
At trial, sufficient evidence was presented, primarily through the admission of Plaintiffs' exhibits, regarding the JOSTIN's involvement in illicit actions. The JOSTIN was seen located along the JOSE ANTONIO in waters not known for finishing and outside of Ecuador's Exclusive Economic Zone. The Coast Guard discovered cocaine on the JOSE ANTONIO before the Coast Guard boarded the JOSTIN, and after a pier-side search, the JOSE ANTONIO was found to have 5,300 pounds of cocaine onboard. The JOSTIN wrongly reporting to the McCLUSKY that Washington Luca Franco was the captain of the vessel. The JOSTIN had an amount of fish on the boat that was inconsistent with the stated length of the voyage and the amount initially reported by the JOSTIN to the McCLUSKY. There was insufficient ice in the cooler on the JOSTIN to keep the fish cold. The fish were intact and the machete, which was supposed to behead the fish, was rusted and dulled. The ship captain, Cedeno, and the vessel engineer were unfamiliar with how many fuel tanks were located onboard the JOSTIN. There were two fuel tanks present on the ship that were not on the ships schematics and, initially, not reported by Cedeno or the vessel engineer. There were five pangas with long range radio antennas attached to the JOSTIN. Upon a pier-side search, suspicious text message correspondence was located on Cedeno's cellular phone. There was subsequent information alleging that the JOSTIN had successfully delivered approximately 1.5 tons of cocaine at sea prior to being boarded by the Coast Guard. The Court concludes that Plaintiffs did not establish by a preponderance of the evidence that the JOSTIN and its crew were not involved in illicit actions. In addition, the evidence strongly infers that the JOSTIN and its crew were involved in illicit actions.
IT IS HEREBY ORDERED that Plaintiffs' Emergency Rule 37 and Rule 26(b) Motion or in the Alternative Plaintiffs' Motion for a Continuance is denied.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in favor of Defendant and against Plaintiffs as to all claims in the Complaint.
(ECF No. 242 at 30:24-31:7).
