Medvid By Jeziersky v. New Orleans Police Dept., Civ. A. No. 85-5065.

• Decision Date: 06 November 1985
• Docket Number: Civ. A. No. 85-5065.
• Citation: 621 F. Supp. 503
• Parties: Myroslaw Wasylowycz MEDVID by His Next Friends, Paraska Medvid JEZIERSKY (Aunt), Maria Filipovic (Cousin), and Anne Kent (Cousin) v. NEW ORLEANS POLICE DEPARTMENT; Warren G. Woodfork, Jr., Chief, New Orleans Police Department; New Orleans Harbor Police; United States Border Patrol; Jesse Tabor, Commander, U.S. Border Patrol; U.S. Immigration and Naturalization Service; David H. Lambert, Director District 28, U.S. Immigration and Naturalization Service; Universal Shipping Agencies, Inc.; Tim Maloz; Michael Slad; Port Ship Service, Inc.; Raymond Gutherie; Seaman A; Seaman B; Seaman C; Seaman D; Seaman E; Seaman F; Seaman G; "Boris Doe", Master, SS Marshal Konev; U.S. Customs Service; J. Robert Grimes, Regional Commissioner, Region 5, U.S. Customs Service; Rear Adm. Clyde T. Lusk, Jr., District Commander, 8th District, U.S. Coast Guard; Captain Lindak, Captain of the Port of New Orleans, U.S. Coast Guard, Bd. of Commissioners of the Port of New Orleans.
• Court: U.S. District Court — Eastern District of Louisiana

621 F. Supp. 503

Myroslaw Wasylowycz MEDVID by His Next Friends, Paraska Medvid JEZIERSKY (Aunt), Maria Filipovic (Cousin), and Anne Kent (Cousin) v. NEW ORLEANS POLICE DEPARTMENT; Warren G. Woodfork, Jr., Chief, New Orleans Police Department; New Orleans Harbor Police; United States Border Patrol; Jesse Tabor, Commander, U.S. Border Patrol; U.S. Immigration and Naturalization Service; David H. Lambert, Director District 28, U.S. Immigration and Naturalization Service; Universal Shipping Agencies, Inc.; Tim Maloz; Michael Slad; Port Ship Service, Inc.; Raymond Gutherie; Seaman A; Seaman B; Seaman C; Seaman D; Seaman E; Seaman F; Seaman G; "Boris Doe", Master, SS Marshal Konev; U.S. Customs Service; J. Robert Grimes, Regional Commissioner, Region 5, U.S. Customs Service; Rear Adm. Clyde T. Lusk, Jr., District Commander, 8th District, U.S. Coast Guard; Captain Lindak, Captain of the Port of New Orleans, U.S. Coast Guard, Bd. of Commissioners of the Port of New Orleans.

Civ. A. No. 85-5065.

United States District Court, E.D. Louisiana.

November 6, 1985.

Julian E. Kulas, Chicago, Ill., Henry Mark Holzer, Brooklyn, N.Y., Michael S. Wolf, Baton Rouge, La., for plaintiffs.

William Baity, U.S. Atty., Daniel Lindhardt, U.S. Atty., New Orleans, La., for defendants.

ORDER AND REASONS

FELDMAN, District Judge.

Before the Court is an application for a temporary restraining order on behalf of the now-celebrated drama involving the Ukrainian seaman, Myroslaw Medvid, by his next friends. It was heard on November 6, 1985. The temporary restraining order asks this Court to order the defendants, various local and national governmental agencies among others, to prevent the removal of seaman Medvid from the jurisdiction of this Court and to deliver him to the custody of his attorneys (who are represented to be those same attorneys appearing on behalf of the next friends). The plaintiff is principally claiming violations of the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102 (1980) and the procedures thereunder. See 8 U.S.C. 1158; 8 C.F.R. 208.

The Court assumes the plaintiffs have standing under Rule 17(c) of the Federal Rules of Civil Procedure.

The events surrounding this now well-known international incident began the evening of October 24, 1985 near Belle Chasse, Louisiana in the Mississippi River. Seaman Medvid was assigned to a Russian merchant vessel, the SS Marshal Konev. At approximately 8:00 p.m. that evening he apparently left his ship, swam a quarter mile from ship to shore, and encountered Wayne Wyman and his uncle, Joseph Wyman, both residents of Belle Chasse, Louisiana. He indicated to them, in his own language, that he was Ukrainian and wanted to go to the New Orleans Police. According to the Wymans, he was soaking wet and appeared to be extremely nervous. He was carrying some personal possessions in a brown jar. The Wymans thought the man wished to defect, although they weren't sure of his intentions, and Wayne Wyman took him to a New Orleans police station in the French Quarter. Apparently, at approximately 10:30 p.m. Medvid was interviewed by the New Orleans Harbor Police, who contacted the Immigration and Naturalization Service. The INS secured the services of an interpreter in New York, Irene Padoch, who spoke to Medvid in his native Ukrainian tongue for approximately thirty minutes while an INS officer listened and indicated to Mrs. Padoch the questions which she should ask Medvid. According to Mrs. Padoch, Medvid indicated on two occasions during that conversation that he wished to remain in the United States. For reasons which are unclear, an agency of the Federal Government, either the INS or the Border Patrol, summarily issued an order directing that Medvid be returned to his vessel and the Border Patrol contacted the vessel's American agent, Universal Shipping Agencies, and told the agent to return the seaman to his ship. At approximately 2:30 a.m. on October 25, 1985 Medvid was returned to his ship. Upon his return, Medvid again jumped into the water and tried to leave the ship and reach the shore. He was forcibly returned to the ship by members of the ship's crew and the ship's American agent.

At this point in the story it seems undisputed that Medvid had indicated to Mrs. Padoch that he wished to remain in the United States and, therefore, the reasons for the order that he be returned to the vessel are unclear. What is clear, however, is that immediately after his second attempt to leave the ship, the State Department got involved. According to the testimony of William M. Woessner, Acting Assistant Secretary of State for European and Canadian Affairs before the Senate Judiciary Committee on November 5, 1985, the State Department entered the picture at approximately 3:40 p.m. on October 25, 1985. According to the testimony of Secretary Woessner, a copy of which is in evidence, the State Department immediately requested the Coast Guard and Treasury Department to prevent the departure of the ship from the area of the Port of New Orleans and immediately dispatched a Russian-speaking Foreign Service Officer and an Assistant Legal Adviser to the scene. State Department representatives arrived at the vessel at approximately 10:30 p.m. the night of October 25th and, according to Secretary Woessner, from then on the United States had a team of at least six officials aboard the Soviet vessel at all times until seaman Medvid was transferred to the U.S. Coast Guard Cutter Salvia, on October 28th. The United States team included representatives from the State Department, INS, the Treasury Department, and a U.S. Navy doctor. The testimony of Commissioner Alan C. Nelson, Commissioner of INS, also appearing before the Senate Judiciary Committee on November 5, 1985, indicates that members of the National Security Council and the Departments of Transportation, Treasury, State, and Justice in Washington were also in constant contact with the U.S. on-site team and, finally, senior INS managers and the Commissioner himself worked with personnel on the scene in order to determine whether Mr. Medvid desired political asylum. From the evening of October 26th, two days prior to being taken to the Coast Guard vessel, the State Department had an interpreter on the scene to insure that communications with seaman Medvid were guaranteed. The interpreter was of Ukrainian heritage and was fluent in both Russian and Ukrainian and was able to communicate with seaman Medvid. (Plaintiffs dispute this but their disbelief is at best speculative.) Medvid received a physical examination on October 26th and was found to be in good condition, not sedated or under the influence of drugs. During that first examination he told the State Department representatives that he wished to return to the Soviet Union. Medvid was clearly and unhesitatingly told from the start that he would not be made to return to the Soviet Union, he would not be imprisoned here, and he could remain in the United States. The United States team, in diplomatic discussions with the Soviets, made it clear that Medvid would have to be interviewed in a non-threatening environment under United States control. Those discussions resulted in Medvid being transferred on October 28th to the Coast Guard vessel. He was given an opportunity to rest and relax on the vessel but declined and proceeded to still a second interview. Throughout this, and other interviews, a medical team, an interpreter, Soviet officials and a Soviet doctor and ship personnel were present. Soviets were present to insure that the United States would have similar access to Americans in the Soviet Union, but the meeting was structured so that there was no intimidation of seaman Medvid. When Medvid became ill, perhaps because of the rough waters of Hurricane Juan, perhaps from personal upset, the interview was interrupted and it was resumed after approximately one-half hour when a U.S. doctor indicated that there was no medical impediment to continuing the interview and Medvid wanted to continue. It is clear that throughout all of these interviews and medical examinations on the Coast Guard vessel, Medvid was told and assured that he was not under arrest, that he was free to remain in the United States, and that he would not have to return to the Soviet Union against his will. This Court does not doubt that the story Medvid told the interviewers on the Coast Guard vessel about falling overboard while making some electrical repairs was probably untrue, and Medvid probably did desire initially to defect as he told Mrs. Padoch; the evidence of the events of October 24th and October 25th would clearly seem to indicate that, especially when one recalls his second attempt to leave the ship after he had been summarily returned. But there is no doubt that the State Department authorities decided after intense safeguards were established, that Medvid had changed his mind, and his interviewers were confronted with that situation. In order to give him additional time to think about his decision, he was removed from the Coast Guard vessel and taken to a military facility on shore to rest and reconsider his wishes. He was removed from the Coast Guard vessel at 11:15 p.m. on October 28th and was transferred to a nearby Naval facility. Again, contrary to plaintiffs' claims, it was medically determined that he was not under the influence of drugs. After being housed overnight and in U.S. custody, and after having had an evening of relaxation, rest, and television, the conversations with the State Department representatives and others of the U.S. team continued the next morning. Medvid continued to assert his desire to return to the Soviet Union. Throughout at least four interviews, two on the Coast Guard vessel and two at the Naval facility, and after extensive periods of rest and informal recreation, Medvid persisted in stating his desire to return to the Soviet Union. Throughout this period of time he was under...