Cassidy v. Chertoff

Decision Date29 November 2006
Docket NumberDocket No. 05-1835-cv.
Citation471 F.3d 67
PartiesMichael CASSIDY, Robert J. Cabin, Plaintiffs-Appellants, v. Michael CHERTOFF, Secretary, United States Department of Homeland Security, in his official capacity, Thomas H. Collins, Admiral, Commandant, United States Coast Guard, in his official capacity, Glenn Wiltshire, Captain, United States Coast Guard Federal Maritime Security Coordinator, New York Captain-of-the-Port Zone, in his official capacity, Lake Champlain Transportation Company, Inc., in its capacity as agent of the United States Government, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

William A. Nelson, Cooperating Attorney, American Civil Liberties Union of Vermont, Middlebury, VT, for Plaintiffs-Appellants.

Douglas N. Letter, Appellate Litigation Counsel, Civil Division, Department of Justice, Washington D.C., and Michael Brow, Sylvester & Maley, Inc., Burlington, VT (Peter D. Keisler, Assistant Attorney General, Washington, D.C.; David V. Kirby, United States Attorney for the District of Vermont; Carol L. Shea, Assistant United States Attorney, Burlington, VT on the brief), for Defendants-Appellees.

Before WINTER, POOLER, and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Plaintiffs-appellants Michael Cassidy and Robert J. Cabin appeal from a judgment of the United States District Court for the District of Vermont (Murtha, J.) granting defendants-appellants Michael Chertoff, Thomas H. Collins, Glenn Wiltshire, and Lake Champlain Transportation Company's ("LCT") motion to dismiss the plaintiffs' claim that LCT's practice of searching the carry-on baggage of randomly selected passengers and inspecting randomly selected vehicles, including their trunks, pursuant to the Maritime Transportation Security Act of 2002 ("MTSA"), 46 U.S.C. §§ 70101-70119 (2006), violated plaintiffs' Fourth Amendment rights. For the reasons that follow, we reject plaintiffs' contention that the searches at issue in this case violated their Fourth Amendment rights and affirm the judgment of the district court.

BACKGROUND

In the wake of the September 11, 2001 terrorist attacks, Congress enacted the MTSA to detect and deter a potential "transportation security incident," which Congress defined as a "security incident resulting in a significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area." 46 U.S.C. § 70101(6). Because the resolution of this appeal depends, in significant part, on the MTSA and the regulations enacted pursuant to it, we begin by discussing the statutory background in some detail.

The MTSA contains a set of nationwide directives for increasing both vessel and port security. First, it requires the Secretary of the Department of Homeland Security ("DHS") to "conduct an assessment of vessel types ... on or adjacent to the waters subject to the jurisdiction of the United States to identify those vessel types . . . that pose a high risk of being involved in a transportation security incident." Id. § 70102(a). Based on the information gathered in this initial assessment, the Secretary must then "conduct a detailed vulnerability assessment of . . . [such] vessels" to identify, inter alia, possible threats to critical assets and infrastructure as well as existing weaknesses in passenger and cargo security protection systems. Id. § 70102(b). After these vulnerability assessments have been made, the MTSA requires the owners and operators of vessels "that the Secretary believes may be involved in a transportation security incident" to prepare a security plan "for deterring a transportation incident to the maximum extent practicable." Id. § 70103(c)(1)-(2).

The Coast Guard conducted the initial nationwide vulnerability assessment on behalf of the Secretary. See Implementation of National Maritime Security Initiatives, 68 Fed.Reg. 39,240, 39,243 (July 1, 2003) (to be codified at 33 C.F.R. pts. 101, 102, 103 et al., 46 C.F.R. pts. 2, 31, 71, et al.). This assessment was aimed at "determin[ing] risks associated with specific threat scenarios against various classes of targets within the Marine Transportation System." Id. at 39,244. In order to determine the susceptibility of various segments of the commercial maritime community to terrorist attack, Coast Guard analysts considered, inter alia, the likelihood that a particular type of vessel would be a terrorist target or would be used as a weapon itself; the plausibility of terrorists actually carrying out various hypothetical attack scenarios; the risk associated with a given attack against a given target; and the likelihood and consequences of various attack scenarios. Id. at 39,244-45; see also id. at 39,243-50 (describing the methods of assessment employed by the Coast Guard in making the determinations required by the MTSA).

Based on this assessment, the Coast Guard determined that certain maritime vessels, including those that weigh more than 100 gross register tons or are licensed to carry more than 150 passengers "are at a high risk of a transportation security incident." Id. at 39,246; see also 33 C.F.R. § 104.105(a) (codifying the Coast Guard's above determination). Under the MTSA implementing regulations, vessels that fall into the high-risk category are required to adopt certain security measures to "[d]eter the unauthorized introduction of dangerous substances and devices, including any device intended to damage or destroy persons, vessels, facilities, or ports." 33 C.F.R. § 104.265(a)(1). To determine what security measures are required for such high-risk vessels, a vessel owner must prepare a Vessel Security Assessment ("VSA"), which is "an analysis that examines and evaluates the vessel and its operations taking into account possible threats, vulnerabilities, consequences, and existing protective measures, procedures and operations," id. § 101.105, by collecting specified background information and carrying out an onsite survey of the vessel to check existing protective measures, procedures, and operations for a variety of factors. Id. § 104.305(a)-(b). When complete, the VSA is used by the vehicle's owner or operator to devise a Vessel Security Plan ("VSP"), which is a "plan developed to ensure the application of security measures designed to protect the vessel and the facility that the vessel is servicing or interacting with." Id. § 101.105. The VSP must be submitted to the Coast Guard for review and approval. Id. § 104.410. Owners of a vessel operating under a VSP must "[s]creen persons, baggage (including carry-on items), personal effects, and vehicles for dangerous substances and devices at the rate specified in the approved Vessel Security Plan." Id. § 104.265(e)(1). Owners must also "[c]heck the identification of any person seeking to board the vessel." Id. § 104.265(e)(3).

Owners and operators of high-risk vessels are permitted a certain measure of flexibility within this general framework. They may opt out of "identification checks and passenger screening requirements." Id. § 104.292(b). In place of these search requirements, vessel owners "may ensure security measures are implemented that include":

(1) Searching selected areas prior to embarking passengers and prior to sailing; and

(2) Implementing one or more of the following:

(i) Performing routine security patrols;

(ii) Providing additional closed-circuit television to monitor passenger areas; or

(iii) Securing all non-passenger areas.

Id. In fact, a vessel owner or operator may, with the express permission of the Coast Guard, opt out of any regulatory requirement contained in a VSP so long as the Coast Guard has determined that "the waiver will not reduce the overall security of the vessel." Id. § 104.130 (stating that the owner or operator of a high-risk vessel is permitted to "apply for a waiver of any requirement . . . that the owner or operator considers unnecessary in light of the nature or operating conditions of the vessel"). The regulations also permit owners and operators to propose an "equivalent" to any of the security measures required by a VSP. Id. § 104.135. Finally, instead of implementing a VSP, a vessel owner or operator may fulfill the requirements of the MTSA by implementing an Alternative Security Program ("ASP"). Id. § 104.140(c). An ASP is "a third-party or industry organization developed standard that the [Coast Guard] Commandant has determined provides an equivalent level of security to that established by" the agency's regulations. Id. § 101.105. Vessel owners and operators who adopt an ASP must still develop and make available for Coast Guard inspection a vessel-specific security assessment report. Id. §§ 101. 120(b)(4), 104.120. To date, the Coast Guard has approved a number of ASPs through publication in the Code of Federal Regulations, see 33 C.F.R. § 101.125, including the program that LCT adopted, which was devised by the Passenger Vessel Association. See id. § 101.125(c).

The parties agree that an ASP is a classified document, subject to the same "sensitive security information" designation that applies to a VSP. See id. § 104.400(c) (stating that VSPs are subject to protection as "sensitive security information"). Because the ASP designed by the Passenger Vessel Association is classified and has not been entered into evidence, we will assume, for the purpose of reviewing the district court's decision to grant defendants' motion to dismiss, that the searches alleged by the plaintiffs are either required or permitted by LCT's security program.

Plaintiffs Michael Cassidy and Robert J. Cabin, both residents of Vermont, are commuters who ride LCT ferries and were subject to random searches pursuant to the ferry company's ASP. They traveled to their jobs in New York via the LCT ferry between Grand Isle, Vermont and...

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