Vu v. Meese

• Decision Date: 08 January 1991
• Docket Number: Civ. A. No. 89-2003.
• Citation: 755 F. Supp. 1375
• Parties: Tricia VU, et al. v. Edwin MEESE, III, et al.
• Court: U.S. District Court — Eastern District of Louisiana

755 F. Supp. 1375

Tricia VU, et al. v. Edwin MEESE, III, et al.

Civ. A. No. 89-2003.

United States District Court, E.D. Louisiana.

January 8, 1991.

COPYRIGHT MATERIAL OMITTED

Paul J. Galuszka, New Orleans, La., Pat A. Sheehan, Biloxi, Miss., for plaintiffs.

Constantine D. Georges, U.S. Attorney's Office, New Orleans, La., Philip Francis Cossich, Jr., Pivach, Cossich & Pivach, Belle Chasse, La., Dennis P. Couvillion, Daniel Rault Martiny, Lee, Martiny & Caracci, Metairie, La., Steven Franklin Griffith, Sr., Destrehan, La., Warren Horn, Adams & Reese, Warren M. Schultz, Jr., M. Richard Schroeder Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for defendants.

WICKER, District Judge.

This is a lawsuit for damages arising out of vessel seizures which occurred as a result of the following events.

The U.S. Coast Guard boarded two commercial fishing vessels owned by plaintiffs Lan Huong Thi Nguyen and Tricia Vu, which were allegedly moored in an unsafe manner in Tiger Pass, Plaquemines Parish, Louisiana. Once on board the vessels, the Coastguardsmen allegedly saw a small amount of marijuana in plain view, which prompted a complete search of both vessels and the discovery of an additional small amount of marijuana. The two vessels were seized. Through administrative proceedings, the owners paid a civil fine of about $2000 for each of the two vessels and the vessels were returned.¹ Before the vessels were released, plaintiffs executed (1) Hold Harmless and Indemnification Agreements stating that they would not sue the USA because of the vessel seizures and (2) disposition forms stating that the vessels were in the same condition as when they were seized.

In this civil suit, the plaintiffs challenge the seizure of the vessels and claim that the vessels were damaged during the seizure. The individual USA defendants² and the United States of America filed a motion to dismiss plaintiffs' claims. Defendants Rocky Dominic (a St. Charles Parish Sheriff's Deputy) and Johnny Marino (Sheriff for St. Charles Parish) also move to dismiss plaintiffs' complaint. Both motions were submitted to the Court on briefs without oral argument.

After considering the record, the briefs of counsel, and the applicable law, and for the reasons which follow, the Court GRANTS IN PART AND DENIES IN PART the motion of the USA defendants. The Court DENIES the motion to dismiss brought by defendants Dominic and Marino.

MOTION TO DISMISS BROUGHT BY THE USA DEFENDANTS

The Court will consider separately each of the several grounds advanced for granting this motion to dismiss.

The individual USA defendants Meese, Thornburgh, Von Raab, Elkins, Fox, Hood, Cavallo and Currey contend that there is no personal jurisdiction over them because they are sued solely in their personal capacities, do not reside in Louisiana and do not have any personal contacts with the state.

Louisiana's Long Arm Statute, La.R.S. 13:3201 reaches to the full extent of the due process clause of the Fourteenth Amendment. Quasha v. Shale Development Corporation, 667 F.2d 483 (5th Cir. 1982) A "court's assertion of personal jurisdiction satisfies the Due Process Clause if it does not violate `traditional notions of fair play and substantial justice.'" Burnham v. Superior Court of California, ___ U.S. ___, 110 S.Ct. 2105, 2110, 109 L.Ed.2d 631 (1990). In Burnham, while deciding that California courts had personal jurisdiction over a New Jersey defendant, who was served in California, the U.S. Supreme Court reviewed earlier decisions and particularly International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), with the following comments.

The validity of assertion of jurisdiction over a nonconsenting defendant who is not present in the forum depends upon whether `the quality and nature of his activity' in relation to the forum, renders such jurisdiction consistent with `traditional notions of fair play and substantial justice' (citations omitted) Id. 110 S.Ct. at 2114. "Litigation-related `minimum contacts' may take the place of physical presence as the basis for jurisdiction" Id. citing International Shoe.

Defendants Meese, Thornburgh, Von Raab, Elkins and Fox, are clearly not Louisiana residents. Notwithstanding, plaintiffs contend that this Court has personal jurisdiction over federal government officials who enforce the federal laws and policies on a nationwide basis and that Meese, Thornburgh, Von Raab, Elkins and Fox enforced a federal policy known as Zero Tolerance.³ The cases cited by the plaintiffs in support of that proposition are not from this Circuit and are otherwise inapposite. Green v. Carlson, 581 F.2d 669 (7th Cir.1978), was a lawsuit filed by the mother of a federal prisoner who died in jail allegedly as the result of intentional maltreatment following an asthma attack. The appellate court briefly addressed the question of personal jurisdiction, concluding that service of process was proper on the Director of the Federal Bureau of Prisons and the Assistant Surgeon General of the United States and that "both defendants had contacts with Indiana sufficient to permit use of state procedures for effecting service on non-resident parties and to meet the requirements of due process." Id. at 676. Driver v. Helms, 577 F.2d 147 (1st Cir.1978), was overruled in Stafford v. Briggs, 444 U.S. 527, 100 S.Ct. 774, 63 L.Ed.2d 1 (1980). In reversing the Driver court's reliance on the nationwide service of process in 28 U.S.C. § 1391(e) to establish personal jurisdiction over government officials sued in their individual capacities, the U.S. Supreme Court restricted the application of 28 U.S.C. § 1391(e) to instances where governmental officials were sued in their official capacity.

Therefore, the fact that federal government officials enforce federal laws and policies on a nationwide basis is not sufficient in and of itself to maintain personal jurisdiction in a lawsuit which seeks money damages against those same governmental officials in their individual capacities. The governmental officials must have the requisite minimum contacts with the forum state for personal jurisdiction to exist. In this case, the Court finds that Meese, Thornburgh, Von Raab, Elkins and Fox do not have the requisite minimum contacts with the state of Louisiana. Accordingly, the Court GRANTS the motion to dismiss of those defendants.

As to the remaining USA defendants, the USA admits in its answer that Mish, Ruiz, Grimes, Wilson and Ladner are residents of Louisiana. Plaintiffs allege in their complaint that Coast Guardsmen Hood, Cavallo, and Curry either lived in Louisiana or performed many of their duties in Louisiana at the time of the incident. Those allegations are taken as true in a motion to dismiss. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Accordingly, the motion to dismiss those remaining USA defendants IS DENIED.

MOTION OF USA DEFENDANTS TO DISMISS COUNT ONE

Plaintiffs allege in Count One that the seizure of their vessels was illegal on the ground that the Zero Tolerance policy under which U.S. Customs acted was itself illegal because it was not submitted for public notice and comments under the rulemaking provisions of the Administrative Procedures Act (APA), 5 U.S.C. § 553.

After careful review, the Court finds that the Zero Tolerance Policy is not a "legislative-type" rule to which the APA and its requirements for notice and comment apply. "General statements of policy are rules directed primarily at the staff of an agency describing how it will conduct agency discretionary functions, while other rules are directed primarily to the public in an effort to impose obligations on them." Noel v. Chapman, 508 F.2d 1023, 1030 (2nd Cir.) cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975), quoting 23 Admin.L. Rev. 101, 155 (1970-1971).

The statutory authority for seizure of the vessels appears in 19 U.S.C. § 1595a(a) which provides in pertinent part:

Every vessel, ... used in to aid in, or to facilitate ... the importation, bringing in ... or subsequent transportation of any article which is being or has been introduced, or attempted to be introduced, into the United States contrary to law ... may be seized and forfeited....

Zero Tolerance Policy did not create a new law but only provided for strict uniform enforcement of existing drug and forfeiture laws. Accord USA v. One 1974 Volkswagen Van, #C88-1025R (W.D. Wash., 1988). In One 1974 Volkswagen Van, a van was seized because a single handrolled marijuana cigarette and rolling papers were found in its sink. One of the grounds for challenging the forfeiture in that case was that the government's policy of zero tolerance violated the notice and comment requirements of the APA, 5 U.S.C. §§ 551 et seq. The district court found that

The Zero Tolerance policy established stricter enforcement of existing laws; it did not create additional obligations or make substantive changes in the law.... What has changed is not the content or administration of the forfeiture provisions, but rather the government's enforcement of the laws prohibiting the possession or importation of illegal drugs. New policies governing the prosecution of criminal statutes are classic examples of interpretative rules, which are outside the scope of APA. Id. at 4-5.

Brown Express, Inc. v. USA et al, 607 F.2d 695 (5th Cir.1979), on which the plaintiffs rely is distinguishable. At issue in Brown was a "Notice of Elimination of Notification Procedure in the Processing of Emergency Temporary Authority Applications for motor or water carriers to provide transportation to an area without such transportation." The Fifth Circuit stated that

When a proposed regulation of general applicability has a substantial impact on the regulated industry, or an important class of the members or the products of that industry, notice and opportunity for comment should first be provided....

Id. at 702.

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