Bryan v. United States, Civil Action No. 2010-0066

CourtUnited States District Courts. 3th Circuit. District of the Virgin Islands
Writing for the CourtLewis, Chief Judge
PartiesCARLYLE BRYAN, JULIE BEBERMAN, and CHARLES FRANCIS, Plaintiffs, v. UNITED STATES OF AMERICA, and CUSTOMS AND BORDER PROTECTION OFFICERS JOHN MAZUR, JAMIE DEMARAIS, OBED TORRES, GREGORY DeFELICE, ORLANDO BAEZ, TIMOTHY OGG, ANDRES VAZQUEZ, JOEL OSORIO, and JUAN GRACIA, OF THE DEPARTMENT OF HOMELAND SECURITY, BUREAU OF CUSTOMS AND BORDER PROTECTION, Defendants.
Decision Date28 February 2017
Docket NumberCivil Action No. 2010-0066

CARLYLE BRYAN, JULIE BEBERMAN, and CHARLES FRANCIS, Plaintiffs,
v.
UNITED STATES OF AMERICA, and CUSTOMS AND
BORDER PROTECTION OFFICERS JOHN MAZUR,
JAMIE DEMARAIS, OBED TORRES,
GREGORY DeFELICE, ORLANDO BAEZ, TIMOTHY OGG,
ANDRES VAZQUEZ, JOEL OSORIO, and JUAN GRACIA,
OF THE DEPARTMENT OF HOMELAND SECURITY, BUREAU OF
CUSTOMS AND BORDER PROTECTION, Defendants.

Civil Action No. 2010-0066

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

February 28, 2017


David M. Nissman, Esq.,
St. Croix, U.S.V.I.
For Plaintiffs

Joycelyn Hewlett, Esq.,
St. Thomas, U.S.V.I.
For Defendants

MEMORANDUM OPINION

Lewis, Chief Judge

THIS MATTER comes before the Court on the Motion to Dismiss First Amended Complaint (Dkt. No. 50) and the Motion for Summary Judgment (Dkt. No. 94) filed by Defendants United States of America and ten officers of the Department of Homeland Security's Bureau of Customs and Border Protection ("CBP") (collectively "Defendants" or "United States"). Plaintiffs

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opposed both motions (Dkt. Nos. 56 and 104), and Defendants filed Replies in support of both motions. (Dkt. Nos. 58, 111).

As discussed further below, with one exception—a statute of limitations argument—the issues raised by Defendants in the Motion to Dismiss are included in the Motion for Summary Judgment with, of course, more factual development in the Motion for Summary Judgment. In view of this similarity and the Court's ruling on Defendants' qualified immunity argument, which renders the statute of limitations argument moot, the Court will deny the Motion to Dismiss as moot and address all of the issues in the context of the Motion for Summary Judgment.1

For the reasons that follow, the Court will grant Defendants' Motion for Summary Judgment. It will dismiss Count Four, brought against the individual CBP Officers pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics, 403 U.S. 388 (1971), on the ground of qualified immunity.2 Further, the Court will dismiss Counts One, Two, and Three, brought against the United States pursuant to the Federal Tort Claims Act ("FTCA"), on the ground that the discretionary function exception divests the Court of jurisdiction over these causes of action.3

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I. BACKGROUND FACTS AND PROCEDURAL HISTORY

Carlyle Bryan ("Bryan"), Julie Beberman ("Beberman"), and Charles Francis ("Francis") (collectively "Plaintiffs") are United States citizens who are residents of St. Croix, U.S. Virgin Islands. (Dkt. No. 38, ¶ 3). In December 2007, Beberman booked two cabins on the cruise ship M/V Adventure of the Seas ("M/V AOS"), owned by Royal Caribbean Cruises, Ltd.—one cabin for herself and her boyfriend Bryan, and the other for Francis. Id. ¶¶ 5, 6. She had invited Francis as a bonus for his performance as an independent contractor for Oil Genie, a business she owned. (Dkt. No. 168-1 at 10). The cruise began on August 31, 2008 in San Juan, Puerto Rico, stopped at several foreign ports, returned to the United States through St. Thomas, U.S. Virgin Islands, and ended back in San Juan on September 7, 2008. (Dkt. No. 97-13 at 2).

A. Customs Inspection at the San Juan Airport

Plaintiffs flew from St. Croix to San Juan on August 31, 2008. Upon their arrival at the San Juan Airport, they passed through a border inspection checkpoint where they were asked the purpose of their visit and where they worked on St. Croix. (Dkt. No. 38, ¶¶ 7-9). Francis recalled that he was not nervous when he went through Customs, and had no problem answering the CBP officer's questions, except for the inquiry concerning his occupation. Francis explained that the question was "hard to answer" because the mobile oil change business for which he worked involved driving to a customer's location and performing an oil change there. Because no one had asked him the question before, he stated that it took him "a little longer to answer[.]" (Dkt. No. 108-7 at 6).

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The CBP officers conducted a secondary inspection of Francis. One officer found a silver canister in Francis' bag and asked what it contained. Francis responded that it was his shaving powder, and that the officer should open it slowly. Id. at 4. The officer popped the cover off the canister and powder flew out across the room, covering the inspection area and the CBP officers, and causing them to sneeze and cough. Plaintiffs found the situation humorous but the CBP officers did not. (Dkt. No. 167-6, ¶¶ 9, 11). The officers found no contraband in Francis' luggage. Id. ¶ 12.

Defendant Orlando Baez ("Baez"), a CBP officer at the San Juan airport, did not recall the search and the shaving powder incident. However, he knew that he was involved in the secondary inspection of Francis because, on September 1, 2008, he authored an entry in the TECS system4 concerning that inspection. (Dkt. No. 167-3 at 5, 7). The entry stated that: Francis had arrived at the San Juan airport from St. Croix; Francis was "disoriented and nervous[s]" and it took him some time to answer a question about his profession; a bag exam was conducted with negative results; Francis would be aboard the M/V AOS until September 7, 2008; and Francis was traveling with Bryan and Beberman. (Dkt. No. 97-6 at 20). Baez stated. "what I wrote is what I saw. I saw this person that was acting, you know, disoriented and nervous. And that's what I wrote." (Dkt. No. 107-8 at 4; Dkt. No. 167-6, ¶ 13). Between August 31, 2008 and September 5, 2008, Plaintiffs traveled to Barbados, St. Lucia, Antigua, and St. Maarten on the cruise. (Dkt. No. 97-13 at 2).

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B. Creation of the "Lookouts"

Defendant CBP officer Timothy Ogg ("Ogg") worked in the Seaport Rover Team's Passenger Analytical Unit ("PAU") in San Juan. His desk was located next to Defendant Baez's desk. (Dkt. No. 167-6, ¶ 14). Ogg reviewed passenger lists for cruise ships arriving each week in San Juan and searched law enforcement databases to ascertain if any passengers' names appeared on those databases. If so, he would determine whether any of the passengers should be targeted for border inspection. (Dkt. No. 170-1 at 5, 7; Dkt. No. 167-5, ¶ 15). Ogg began his review of the M/V AOS manifold at the beginning of the week and concluded his analysis by Thursday or Friday, September 4 or 5, 2008. (Dkt. No. 170-1 at 27). He knew that the M/V AOS traveled to high-risk narcotics trafficking countries prior to docking in St. Thomas and San Juan, and that the CBP had seized narcotics from crew members and passengers numerous times in the past. Id. at 24. He also knew that Bryan, Francis, and Beberman were traveling together. (Dkt. No. 167-3 at 18, 20).

Ogg testified that, in conjunction with checking the M/V AOS manifold of the ship's 3000-plus passengers, he reviewed a TECS report on Bryan dated April 30, 2000, written by Immigration & Customs Enforcement ("ICE") Agent Hillary Hodge. That report contained subsequent remarks dated May 17, 2000, stating: "Subject is associates [sic] with suspected drug smugglers within the US Virgin Islands. Subject is also suspected of smuggling narcotics within the Virgin Islands. If encountered, conduct 100% exam. . ." (Dkt. No. 97-6 at 4; Dkt. No. 167-3 at 14). Ogg stated that he knew Agent Hodge very well, regarded him as an "excellent worker," and that "if he put something in the system, I want to take a look at it." (Dkt. No. 170-1 at 8). Ogg also viewed a St. Croix PAU lookout entry from June 2, 2004 stating that Bryan would be arriving by airplane from St. Maarten. The 2004 entry referred to the 2000 St. Thomas TECS record indicating that Bryan was a "suspect in USVI drug smuggling," and asked agents reading the report to "[p]lease

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document co-travelers, employment and reason for travel[.]" (Dkt. No. 108-18 at 67; Dkt. No. 167-6, ¶ 25).5

In addition, Ogg found two records of interest in the TECS system concerning Charles Francis. The first record, dated February 23, 2006, stated in the "Status" section: "Subject of current interest," and in the "Remarks" section: "Subject of DEA indictment. If encountered, please notify [a particular special agent via a particular telephone number]. Additionally, make copies of all itinerary information and identification documents." (Dkt. No. 97-6 at 22). Ogg also viewed a record entered on March 2, 2006 which stated in the Status section, "Previous suspect, closed case" and in the "Remarks" section, "Subject of DEA indictment. If encountered, please notify [a particular special agent]." (Dkt. No. 97-6 at 21; Dkt. No. 167-6, ¶ 22).

At some point on September 5, 2008, Ogg made the following "Customs one day lookout" entry into the TECS system regarding Bryan:

Passenger arriving on board M/V Adventure of the Seas. Arriving to STT [St. Thomas] on 09/06/08 and San Juan 09/07/08. Subject linked to drug smuggling organization in STT. Traveling with Francis Charles and Beberman Julie. 100% exam cabins 8330/8332.

(Dkt. No. 97-6 at 2). The start date of the lookout was September 5, 2008 and the end date was September 8, 2008. Id. Ogg placed the same "Customs one day lookout" on Beberman, changing only the names of the people with whom she was traveling. (Dkt. No. 97-6 at 11).

Ogg's "Customs one day lookout" entry concerning Francis contained a slightly different text:

Arrived on Seaboarn [sic] flight from STT to board M/V Adventure OTS. Passenger under investigation for drug smuggling. Traveling with Bryan Carlyle and Julie Beberman. 100% examination recommended[.] Consider all methods of concealment.

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(Dkt. No. 97-6 at 18). Ogg stated that he did not see or rely upon the secondary inspection remarks about Francis made by Officer Baez on September 1 when he created the lookouts. (Dkt. No. 170-1 at 11; Dkt. No. 167-6, ¶ 16).

When asked at his deposition why he generated these lookouts, Ogg responded that, while the TECS record concerning Bryan was old, the entry concerning Francis was not. He explained that if one case, by itself, was old and there were no convictions, he could have made a...

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