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Bimini Superfast Operations LLC v. Winkowski

United States District Court, District Circuit

January 10, 2014

BIMINI SUPERFAST OPERATIONS LLC, et al, Plaintiffs,
v.
THOMAS WINKOWSKI, Acting Commissioner of U.S. Customs and B Protection, Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY United States District Judge

Plaintiffs Bimini Superfast Operations LLC, Bimini Superfast Limited, and Bimini Superfast Charter Limited (“Plaintiffs”) have filed suit against Defendant Thomas Winkowski in his official capacity as Acting Commissioner of the United States Customs and Border Protection agency and U.S. Customs and Border Protection (“Defendants” or “CBP”), challenging under the Administrative Procedures Act (“APA”) CBP’s November 2013 decision prohibiting Plaintiffs from operating their evening “cruise to nowhere” with crewmembers who hold a D-1 nonimmigrant visa. Presently before the Court is Plaintiffs’ [13] Motion for a Preliminary Injunction and Defendants’ [18] Motion to Dismiss or, in the alternative, for Summary Judgment. Upon consideration of the pleadings[1], the relevant legal authorities, and the record as a whole, the Court finds that CBP’s November 2013 determination was a final agency action, but not an action that violated notice and comment rulemaking procedures under the APA nor an agency action that was arbitrary, capricious, or contrary to the law. Accordingly, Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment is DENIED on the basis that CBP’s November 2013 determination was a final agency action, but GRANTED in that, on the merits, the November 2013 determination did not violate APA notice and comment procedures nor was it arbitrary, capricious, or contrary to the law. In light of this decision on the merits, Plaintiffs’ Motion for a Preliminary Injunction is DENIED AS MOOT. The Court shall not address Plaintiffs’ Motion for Preliminary Injunction in its Memorandum Opinion, but only the Defendants’ Motion to Dismiss or, in the alternative, for Summary Judgment.

I. BACKGROUND

As a preliminary matter, the Court notes that it shall cite to Defendants’ Statement of Material Facts not in Dispute, ECF No. [18-4], as these facts were conceded by Plaintiffs.[2]Although Plaintiffs included a footnote in their Opposition to Defendants’ Motion to Dismiss or, in the alternative, for Summary Judgment stating that these facts “are very much in dispute, ” see Pl.’s Opp’n, at 5 n. 9, this gesture is insufficient to actually dispute the facts. Plaintiffs were required to respond to Defendants’ Statement of Material Facts not in Genuine Dispute as set forth in the rules of the U.S. District Court for the District of Columbia. Plaintiffs did not do so. See LCvR 7(h)(1) & (2) (“An opposition to such a motion [for summary judgment] shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement.”). In any event, the facts presented in Defendants’ Statement of Material Facts not in Dispute and relied upon by the Court are either not actually disputed by Plaintiffs or are supported by exhibits provided by both parties along with their pleadings.

A. Factual Background

In 2013, Plaintiffs began a high-speed cruise business using a vessel called “Resorts World Bimini Superfast” that operated out of the Port of Miami. See Def.’s Stmt. ¶ 1. Between July 20, 2013, and September 15, 2013, Plaintiffs operated two daily cruises between Miami and Bimini where passengers would disembark at the foreign port of Bimini in the Bahamas. Id. ¶ 3, 6. On August 23, 2013, a representative of Plaintiffs emailed CBP asking whether it could “confirm (in writing if possible) that if we [Plaintiffs] go for the closed loop cruise to Bimini, without any movement of passengers off or on the ship, an ID will be enough for CBP and they will not process the passengers?” Id. ¶ 8; AR 31. CBP responded that this itinerary was a “cruise to nowhere, ” meaning a cruise that departs a U.S. port of entry, enters international waters without touching a foreign place, and returns to the same U.S. port of entry with no passengers or crew boarding or departing the vessel, and that this type of cruise would not require CBP processing of passengers. Id. ¶ 9; AR 30-31. Subsequently, on or around September 21, 2013, Plaintiffs began operating “cruises to nowhere” that departed Miami in the evening, sailed out into international waters, and returned to the port of Miami in the early morning hours. Id. ¶ 10. Plaintiffs used the same crewmembers to operate the day cruises to Bimini and the evening “cruises to nowhere.” Compl. ¶ 70.

On October 23, 2013, Plaintiffs approached the Port Everglades Seaport in Ft. Lauderdale, Florida to inquire about beginning a “cruise to nowhere” that would begin and end at that port. Def.’s Stmt. ¶ 11. Plaintiffs subsequently informed CBP that they sought to operate a “cruise to nowhere” out of Fort Lauderdale and had been operating the Miami cruise with crewmembers holding D-1 visas. Id. ¶ 12. Shortly thereafter, CBP officials requested a meeting to explain to Plaintiffs that if they wished to continue operating “cruises to nowhere, ” they must employ persons legally authorized to work in the United States since such cruises did not touch a foreign port making the voyage entirely domestic and rendering it ineligible to be crewed by individuals with D-1 visas. Id. ¶ 13. CBP officials met with Plaintiffs on October 28, 2013, and communicated this information to Plaintiffs in person. Id. ¶ 14.

B. Procedural History

On October 30, Bill Olejasz, CBP Port Director of the Port of Miami, sent Plaintiffs a letter indicating that the crewmembers on Plaintiffs’ evening “cruise to nowhere” who possessed D-1 visas were not in compliance with Immigration and Nationality Act (“INA”) Section 101(a)(15)(D)(i), which defines a nonimmigrant alien as:

An alien crewman serving in good faith as such in a capacity required for normal operation and service on board a vessel . . . who intends to land temporarily and solely in the pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft.

Compl., Ex. B; AR 13-14 (October 30, 2013 CBP letter) (emphasis added). The October 2013 letter explained that crewmembers on Plaintiffs’ “cruise to nowhere” fail to satisfy the “departure” element of INA § 101(a)(15)(D)(i) because, pursuant to a 1955 Board of Immigration Appeals (“BIA”) opinion, “one does not depart the United States until one has been admitted into a foreign country or enters foreign territory without inspection.” Id. As the crewmembers on the evening excursions “will not depart the United States and do not land temporarily and solely in pursuit of their calling as a crewmen [sic], ” the crewmembers were not in compliance with the D-1 visa requirements. Id. The letter noted that “the CBP has consistently determined that crewmembers who possess D-1 visas are not eligible to work aboard vessels operating as a cruise to nowhere.” Id. The letter concluded that “in order to operate a cruise to nowhere, the alien crewmembers must be replaced with U.S. citizens and/or lawful permanent residents in order to continue to operate lawfully.” Id. The CBP granted Plaintiffs a “grace period” until November 3, 2012, “to comply with these requirements” and indicated the contact information of the Miami Director of Field Operations, Vernon Foret, in the event Plaintiffs “wish[ed] to appeal this decision.” Id.

On November 4, 2013, Plaintiffs sent a letter of appeal to Mr. Foret, which included five pages of legal argument as to why Plaintiffs’ “cruise to nowhere” was operating in compliance with United States law. See Compl. Ex. C; AR 15-19 (November 4, 2013 Plaintiffs’ Appeal Letter). Plaintiffs essentially made two arguments. First, Plaintiffs argued that CBP agency decisions have long held that “cruises to nowhere” are not coastwise trade subject to coastwise laws and thus do not “trigger any U.S. citizen crewing requirement.” Id. at 3; AR 17. Second, Plaintiffs argued that the D-1 crewmembers are in compliance with the requirements of the INA because the crewmembers “do intend and in fact depart daily [on the cruise to Bimini], enter a foreign port, and enter the U.S. temporarily and solely for the purpose of performing their duties on board the vessel.” Id. at 4-5; AR 18-19.

Miami Director of Field Operations Vernon Foret denied Plaintiffs’ appeal in a letter dated November 7, 2013 (“November 2013 determination”). See Compl. Ex. E; AR 22-23 (November 7, 2013 CBP Letter). In his letter, Mr. Foret explained that Plaintiffs’ evening “cruise to nowhere” is a “separate, revenue-generating cruise, with its own manifest of paying passengers. . . . It is a distinct voyage of a type that consistently has been denied permission to operate in the Miami Field Office area of responsibility without United States Citizen (USC) or Lawful Permanent Resident (LPR) crewmen.” Id. at 1; AR 22. Mr. Foret conceded that “cruises to nowhere” are not considered coastwise trade and that, therefore, requirements imposed by the coastwise laws [which include certain immigration requirements] are not applicable. Id.

However, Mr. Foret stated that “immigration laws are indeed relevant and applicable to cruises to nowhere.” Id. Mr. Foret noted that while Plaintiffs’ “D-1 crewmen depart the United States foreign each day on the international cruise and are in compliance to operate as crewmen involved in international cruises to and from the Bahamas . . . the D-1 crewman visa status does not allow for these crewmen to operate a separate, revenue-generating cruise to nowhere excursion” and reiterated the reasons set forth in the October 2013 CBP letter. Id. at 2; AR 23.

In addition, Mr. Foret noted that the applicable regulations, specifically, 8 C.F.R. § 214.2(d)(1), stated that “[a]n alien in this status [D-1 crewman] may be employed only in a crewman capacity on the vessel or aircraft of arrival, or on a vessel or aircraft of the same transportation company, and may not be employed in connection with domestic flights or movements of a vessel.” Id.

Mr. Foret explained “that the cruise to nowhere is a domestic movement of its vessel” and that Plaintiffs’ “crewmen are working in the United States, not as crewmen but as employees of a vessel providing entertainment within the United States.” Id. Mr. Foret found that Plaintiffs’ own position that their evening “cruise to nowhere” did not need to comply with manifest and inspections requirements as the vessel and crew were not arriving in the United States because the vessel did not depart the United States supported CBP’s position. Id. Mr. Foret concluded:

For these reasons [Plaintiffs’] cruise to nowhere voyages contravene the INA, and these operations must cease until such time as USC or LPR employees are retained to operate those voyages. This office will grant [Plaintiffs] a grace ...

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