LYNCH, Chief Judge.
Lawrence M. Yacubian, a former scallop fisherman, filed suit in July 2012 alleging his prior prosecution by the National Oceanic and Atmospheric Administration ("NOAA") constituted malicious prosecution and abuse of process under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. He did so after official reports stated that there had been abuses by NOAA.
The 2012 suit arises out of Yacubian's prosecution in 2000 by the enforcement arm of NOAA. The Administrative Law Judge ("ALJ") sustained all charges against Yacubian. On judicial review of the ALJ's decision in 2004, the district court sustained findings of liability on two charges of fishing in a prohibited area, vacated a false statement charge against him, and remanded for adjustment of penalties. Lobsters, Inc. v. Evans, 346 F.Supp.2d 340 (D.Mass.2004). On remand, Yacubian reached a settlement with the government.
The district court, in this later FTCA case, dismissed both of Yacubian's claims on two independent grounds, see Yacubian v. United States, 952 F.Supp.2d 334 (D.Mass.2013), and Yacubian now appeals.
The waiver of immunity under the FTCA for the causes of action Yacubian has chosen to pursue is itself limited in scope. As a matter of federal statute and case law, there can be no FTCA recovery for the actions of the prosecutors who bring such enforcement actions but only for the actions of investigative or law enforcement officers who have committed the wrongful acts specified. See 28 U.S.C. § 2680(h); cf. Limone v. United States, 579 F.3d 79, 88 (1st Cir.2009).
We agree with the district court that Yacubian has failed to state a claim that any law enforcement officer in any way wrongfully induced a malicious prosecution or acted to abuse process. We affirm the district court on those limited grounds. We need not get into thorny limitations period and accrual issues regarding the timing of Yacubian's claims.
On an appeal from a grant of a motion to dismiss, we recite the facts as alleged in Yacubian's complaint, Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 4 (1st Cir. 2011), and as not contradicted by the official documents attached to his complaint, Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 229 n. 1 (1st Cir.2013). Yacubian appended to his complaint other documents, including the Offense Investigation Report from when NOAA officials first boarded his vessel and the 2011 Special Master Report concerning NOAA enforcement actions. He also references the record in the prior proceedings in this case. We consider all of these documents as well. See Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir.2008) ("Exhibits attached to the complaint are properly considered part of the pleading `for all purposes,' including Rule 12(b)(6)." (quoting Fed.R.Civ.P. 10(c))).
Lawrence M. Yacubian took his fishing vessel F/V Independence on a scalloping trip on December 4, 1998. Coast Guard
During the boarding, Officer Brown informed Yacubian that the team was "onboard to ensure that he and the vessel were in compliance with all applicable federal laws and regulations." Brown did not tell Yacubian at the time that the Independence had been plotted inside of the Closed Area.
Officer Brown spoke with Yacubian about his navigational practices and his vessel's equipment, which included a Boatracs unit, as required by applicable fisheries regulations. Lobsters, Inc., 346 F.Supp.2d at 341-42. Officer Brown asked Yacubian if he had been having trouble with the Boatracs equipment on board, and Yacubian responded that he was not aware of any problems. The two "visually confirmed" that the status of the Boatracs system was "good." Officer Brown's report of the boarding noted that Yacubian and his crew were "as cooperative as could be expected" throughout.
Officer Brown also asked Yacubian how many scallops he had on board, both on deck and in the ship's hold. After making clear that he had no way of knowing the exact amount, Yacubian provided an estimate. Officer Brown also made an estimate, and it was higher than Yacubian's. Officer Brown's write-up of the boarding noted the discrepancies between his estimate and Yacubian's but did not indicate that he suspected Yacubian of intentionally making a false statement as to these estimates.
On June 14, 2000, NOAA Enforcement Attorney (EA) Charles Juliand issued Yacubian a Notice of Violation and Assessment (NOVA) and a Notice of Permit Sanctions (NOPS). The NOVA included two counts for fishing in a restricted area (the "prohibited fishing" counts) and one count of making a false statement to an officer about the estimated number of scallops on board. The NOPS, which was issued with the NOVA, revoked Yacubian's vessel and operating permits but did not take effect until all agency action on the matter became final. See 15 C.F.R. § 904.273(c) ("If a party files a timely petition for discretionary [agency] review, ... the effectiveness of the initial decision is stayed ... until the initial decision becomes final...."). Yacubian has pled in his complaint that negotiation of a settlement is typical in this type of case, but that in this instance, "EA Juliand was uncharacteristically unwilling to negotiate a settlement." Yacubian admittedly had prior violations on his record.
Yacubian had an evidentiary hearing before an ALJ, Edwin M. Bladen, on the NOVA/NOPS from about June 19 through June 22, 2001. The government was represented by EA Juliand and EA Mitch MacDonald.
The government introduced data from the Boatracs system to support the two prohibited fishing charges. Indeed, Yacubian's case was the first one in which Boatracs data was used as the entire basis for such a charge. His defense was to challenge the reliability of the Boatracs system. To this end, Yacubian's attorney contacted a Massachusetts Environmental Police (MEP) officer, Lieutenant Peter Hanlon, to obtain evidence as to the inaccuracy of Boatracs, and then to testify voluntarily on Yacubian's behalf.
Special Agent in Charge at NOAA (SAC) Andy Cohen was one of several enforcement officers who was "involved in the investigation and prosecution" of Yacubian.
We describe below the Special Master's report, appended to the Complaint, as to the incident with SAC Cohen. According to that report, Lt. Hanlon did provide a written report to Yacubian's counsel in support of Yacubian's position, and that report was submitted by the defense as part of the official record before the ALJ. Yacubian maintains that he was harmed because the ALJ never heard Lt. Hanlon's oral testimony.
On December 5, 2001, ALJ Bladen issued an Initial Decision that sustained the NOVA/NOPS on both counts and imposed fines and sanctions as proposed by NOAA. The fines totaled $250,000, including a $110,000 civil penalty for each of the two prohibited fishing counts and a $30,000 civil penalty for the false statement charge. Yacubian sought discretionary review within NOAA, which was denied on July 2, 2003. According to Yacubian, this denial constituted a final agency action and triggered the revocation of Yacubian's permits at that time. Lobsters, Inc., 346 F.Supp.2d at 342-43; see 15 C.F.R. § 904.273(c).
On August 1, 2003, Yacubian filed suit in federal district court under the Administrative Procedure Act, 5 U.S.C. § 702, challenging the ALJ's decision on the NOVA/NOPS. He did not ask to stay the revocation of his permit pending judicial review. While that case was pending, Yacubian tried to sell the Independence to finance his ongoing legal expenses; however, the complaint in this case alleges that
The parties filed cross-motions for summary judgment in the district court based on the administrative record. On November 29, 2004, the district court (Gorton, J.) (1) sustained the finding of liability as to the two prohibited fishing counts; (2) vacated the finding of liability as to the false statement (about scallops caught) charge,
On remand, on or around May 5, 2005, the agency filed a motion for an expedited hearing to reconsider the penalties and permit sanctions.
In 2010, the Office of the Inspector General (OIG) completed an investigation of alleged improprieties in NOAA's fisheries enforcement programs and issued several reports on its findings. The OIG audited NOAA's Asset Forfeiture Fund (AFF), the fund into which Yacubian's fines were paid. The OIG's audit report, released on July 1, 2010, found mismanagement in the expenditure and use of AFF funds. OIG concluded that the AFF was improperly used to finance the purchase of various luxury vessels and trips around the world that were generally unrelated to NOAA enforcement proceedings.
The OIG final report, issued on September 23, 2010, found that NOAA assessed excessive fines in order to force settlements in several cases. Yacubian's case and the matter of Lt. Hanlon being pressured not to testify were two of many that were identified for further review by a Special Master.
The Special Master issued his report in April 2011. Yacubian appended a portion of the report to his complaint in this case. In the report on Lt. Hanlon's case, the Special Master found that SAC Cohen had talked to Lt. Hanlon's superiors, and after the superiors learned Lt. Hanlon had been subpoenaed to testify, they told him that he could not go to court while he was on state duty, nor could he use his cruiser to get there.
Ultimately, the report concluded that Lt. Hanlon "was not prevented from testifying by SAC Cohen," but SAC Cohen's actions were "sufficient to put enough pressure" on Lt. Hanlon to "request that he be excused from testifying." The report labeled SAC Cohen's conduct as "inappropriate."
As to the prosecution against Yacubian, the Master found that "money was NOAA's motivating objective in this case," and that "EA Juliand had no right to extract an oppressive penalty for the sale of the permits because EA Juliand and others at NOAA completely ignored the plain meaning of Judge Gorton's decision." The Master found that the assessed penalties were excessive, and that NOAA had improperly coerced the settlement. The Special Master recommended that Yacubian be reimbursed $330,000.
On May 17, 2011, Gary Locke, then Secretary of Commerce, issued a "Secretarial Decision Memorandum" which followed up
As to Yacubian's case specifically, Secretary Locke directed NOAA to remit $400,000 to Yacubian. The affirmance of Yacubian's liability for the two prohibited fishing counts was not mentioned in the Secretary's Memorandum or in the Master's Report, nor was the permanent forfeiture of Yacubian's operating permits as part of the settlement agreement.
On January 19, 2012, Yacubian, relying on the Special Master's Report, filed FTCA administrative claims with the Department of Commerce and the Coast Guard. After the Coast Guard denied his claim,
On October 11, 2012, the United States filed a motion to dismiss the case for lack of subject matter jurisdiction and for failure to state a claim. On July 8, 2013, the district court (Tauro, J.) granted the motion on two independent grounds. It held that Yacubian's claims accrued, at the very latest, by June 27, 2005, when he signed the settlement agreement, and that his FTCA claims were time-barred as a result. Yacubian, 952 F.Supp.2d at 339-40. The district court also made an alternative and independent holding, dismissing both the malicious prosecution and abuse of process counts pursuant to Federal Rule of Civil Procedure 12(b)(6). Id. at 340-42. It relied on the intentional torts exception to the FTCA, under which the United States is immune from prosecution for malicious prosecution and abuse of process claims unless these torts are committed by an "investigative or law enforcement officer." 28 U.S.C. § 2680(h). The district court found that the NOAA Enforcement Attorneys, who brought and pursued the prosecution and obtained the settlement, were not "investigative or law enforcement officers" within the meaning of the statute, and that Yacubian's complaint failed to state a claim for malicious prosecution or abuse of process as to SAC Cohen, who is a law enforcement officer. Yacubian, 952 F.Supp.2d at 341-42. This appeal followed. We deal only with the second holding.
We review a district court's dismissal under Rule 12(b)(6) de novo, construing the facts of the complaint in the light most favorable to the plaintiff. Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st Cir.2011). We indulge in all reasonable inferences in Yacubian's favor. McCloskey v. Mueller, 446 F.3d 262, 266
To survive a motion to dismiss, Yacubian's complaint "must state a plausible, not a merely conceivable, case for relief." Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir.2010). This threshold requires that the factual allegations support the "reasonable inference that the defendant is liable for the misconduct alleged." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir.2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (internal quotation mark omitted).
The FTCA gives jurisdiction over tort claims only "if a private person[] would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). The FTCA is a limited waiver of the federal government's sovereign immunity, McCloskey, 446 F.3d at 266, and, as with all such waivers, it must be "construed strictly in favor of the federal government." Bolduc v. United States, 402 F.3d 50, 56 (1st Cir.2005) (quoting United States v. Horn, 29 F.3d 754, 762 (1st Cir.1994)) (internal quotation marks omitted).
The FTCA permits suits against the government for torts "caused by the... wrongful act[s] ... of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). This waiver is limited further for the torts of malicious prosecution and abuse of process. As to these two torts, suits are permitted to proceed only with respect to actions by "investigative or law enforcement officers." Id. § 2680(h). It is undisputed here that the actions of federal prosecutors are outside the ambit of § 2680(h) and are accordingly immune from this type of suit under the FTCA. See, e.g., Limone v. United States, 579 F.3d 79, 88-89 (1st Cir.2009); Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994) ("[T]he FTCA does not authorize suits for intentional torts based upon the actions of Government prosecutors....").
Yacubian does not dispute the government's assertion that the actions of Enforcement Attorneys Juliand and MacDonald, who brought the charges and were the prosecutors in the ALJ proceedings, are, like those of other federal prosecutors, immune in this context. That leaves only whether the complaint and appended documents plausibly allege that SAC Cohen himself wrongfully engaged in malicious prosecution or abuse of process. We agree with the district court that they do not.
To discern the elements of a claim under the FTCA, we look to the law of the place where the alleged wrongful act occurred. See González-Rucci v. U.S. I.N.S., 539 F.3d 66, 69 (1st Cir.2008).
Under Massachusetts law, there are three elements of a malicious prosecution
The two prohibited fishing charges cannot possibly form the basis of Yacubian's malicious prosecution claim because the findings of liability mean that those aspects of the proceedings did not terminate in his favor. The underlying liability as to those counts was affirmed. Lobsters, Inc., 346 F.Supp.2d at 349.
This leaves only a claim for malicious prosecution based on the initiation of the false statement charge.
As to the first element, there is no allegation at all that SAC Cohen in any way initiated the prosecution of any charge, much less the false statement charge. The only specific allegation of SAC Cohen's involvement related to activities after the charges were brought.
The complaint must permit the "reasonable inference" that SAC Cohen in some sense caused the bringing of the NOAA false statement charges, and it requires "more than a sheer possibility" that he acted unlawfully. Iqbal, 556 U.S. at 678,
Under Massachusetts law, an abuse of process claim requires a plaintiff to show that "process" was used for an ulterior or illegitimate purpose and resulted in damages. Vittands v. Sudduth, 49 Mass.App.Ct. 401, 730 N.E.2d 325, 332 (2000). We begin and end here with the first requirement: the use of "process." That term "means causing papers to be issued by a court to bring a party or property within its jurisdiction." Id. at 332 n. 9 (quoting Silvia v. Bldg. Inspector of W. Bridgewater, 35 Mass.App.Ct. 451, 621 N.E.2d 686, 687 n. 4 (1993)) (internal quotation mark omitted). One can "use process" under Massachusetts law by providing information that causes process to be used improperly. See Gutierrez v. Mass. Bay Transp. Auth., 437 Mass. 396, 772 N.E.2d 552, 563-64 (2002) (holding that where plaintiffs presented evidence that officers falsified arrest reports which provided the basis for criminal complaints, a jury could conclude those officers "caused papers to issue" by a court). The parties agree that the only "process" at issue in this case is the original NOVA/NOPS.
As we have said, Yacubian does not plausibly allege that SAC Cohen had any involvement in EA Juliand's initial decision to file the NOVA/NOPS and serve it on Yacubian. Under Iqbal, that is insufficient.
Yacubian, on appeal, urges us to infer from his complaint that SAC Cohen "used process" in "supplying the basis for the Enforcement Attorneys to secure the NOVA/NOPS with an ulterior purpose." His complaint does not so plead, and we have no need to discuss this further.
The judgment of the district court is affirmed.
Up until that point, I had no idea — I was understanding that he was going to come voluntarily. He then advised me that he had been called, that he was instructed that a subpoena had to issue.
To the extent Yacubian suggests an inference can be drawn that this action after the charges were brought suggests that SAC Cohen somehow maliciously induced the initial prosecution or service of the complaint, the inference is neither reasonable nor plausible. See Bernard, 25 F.3d at 104 (holding that actions by agent after prosecution is brought cannot support claim of malicious prosecution in bringing the charges).
To the extent Yacubian suggests SAC Cohen applied pressure by protesting Lt. Hanlon's testimony absent a subpoena, such a protest would be unremarkable. There is nothing inherently illegitimate or malicious in the federal government's request for a subpoena to minimize the likelihood of giving a false impression.
