Wilmina Shipping AS v. U.S. Dep't of Homeland Sec.
| Decision Date | 02 December 2014 |
| Docket Number | Civil Action No. 11–2184 ABJ |
| Citation | 75 F.Supp.3d 163 |
| Parties | Wilmina Shipping AS, et al., Plaintiffs, v. United States Department of Homeland Security, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
William Bruce Pasfield, Alston & Bird LLP, Washington, DC, Brian T. McCarthy, Law Office of Brian Thomas Mccarthy, PLLC, Melville, NY, George K. Kontakis, Michael G. Chalos, K & L Gates LLP, New York, NY, for Plaintiffs.
Michael Anthony DiLauro, U.S. Department of Justice, Washington, DC, for Defendants.
In this action, plaintiffs Wilmina Shipping AS and Wilhelmsen Marine Services AS have challenged an order issued by the U.S. Coast Guard on May 21, 2010. Plaintiffs own and operate a Norwegian-flagged oceangoing tank vessel, the M/T Wilmina. The Coast Guard issued the order in question after inspecting the ship when it was docked in Corpus Christi, Texas. Based on the inspections, witness statements, and evidence collected from the Wilmina, the agency concluded that the ship's pollution control devices were inoperable or disarmed and that the ship had failed to comply with its own Safety Management System. It issued an order revoking the ship's Certificate of Compliance and ordered that the ship could not reenter U.S. waters for three years or until after plaintiffs had developed and implemented an acceptable Environmental Compliance Plan (“ECP”) and had passed one year of satisfactory audits.
Plaintiffs sued, asserting that the agency did not have the statutory authority to issue the order and claiming due process violations. Compl. [Dkt. # 1]. They asked the Court to declare that the Coast Guard violated the Administrative Procedure Act (“APA”), the Port and Waterways Safety Act (“PWSA”), and the U.S. Constitution. Id. ¶¶ 145–58 and Prayer for Relief.
The Court bifurcated the proceedings in this case, directing the parties to brief the legal issues of the agency's authority and due process claims first. After receiving briefs and hearing oral argument on these issues,1 the Court ruled that the Coast Guard did have the statutory authority to order plaintiffs to develop and implement an environmental compliance plan that was acceptable to the Coast Guard and to require a year of satisfactory audits before permitting the ship to reenter U.S. waters, but that it did not have the authority to simply ban the ship from U.S. waters for three years. Wilmina Shipping AS v. DHS, 934 F.Supp.2d 1 (D.D.C.2013). The Court also held that plaintiffs' due process rights were not violated. Id.
Following that decision, defendants filed a motion for summary judgment on the merits, asserting that the Coast Guard's order was supported by the administrative record. Defs.' Mot. for Summ. J. on the Merits ( ) and Mem. in Supp. ( ) [Dkt. # 38] at 1, citing 5 U.S.C. § 706(2). Plaintiffs filed a cross-motion for summary judgment, presenting three arguments: (1) that the order is not severable, so the Court's finding that one part of the order was invalid makes the entire order invalid; (2) that the agency violated its own policies and procedures in issuing the order; and (3) that the evidence in the administrative record did not support the order. Pls.' Opp. and Cross–Mot. for Summ. J. [Dkt. ## 39, 40] ( ).
Upon consideration of the parties' arguments, the Court holds that the Coast Guard's order is severable, that the agency did not violate its policies and procedures in issuing the order, and that the evidence in the administrative record supports the order. Accordingly, the Court will grant defendants' motion for summary judgment and deny plaintiffs' cross-motion for summary judgment.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is only “material” if it is capable of affecting the outcome of the litigation. Id. at 248, 106 S.Ct. 2505 ; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987). In assessing a party's motion, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.’ ” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).
Under the Administrative Procedure Act, a court must “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A) ; in excess of statutory authority, § 706(2)(C) ; or “without observance of procedure required by law.” § 706(2)(D). But the scope of review is narrow. See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). An agency's decision is presumed to be valid, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), and a court must not “substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. at 43, 103 S.Ct. 2856. A court must be satisfied, though, that the agency has examined the relevant data and articulated a satisfactory explanation for its action, “including a rational connection between the facts found and the choice made.” Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C.Cir.2006) (citations omitted) (internal quotation marks omitted). The party challenging the agency action bears the burden of proof. Abington Crest Nursing & Rehab. Ctr. v. Sebelius, 575 F.3d 717, 722 (D.C.Cir.2009).
Because many of the facts in this case were sets forth in the Court's earlier ruling, Wilmina Shipping AS v. DHS, 934 F.Supp.2d at 3–5, the Court will only recount the facts relevant to the parties' current motions.
On May 3, 2010, the day before the Wilmina was scheduled to arrive at the Port of Corpus Christi, the Coast Guard received a phone call from Robert Pabillar, a former crew member of the Wilmina. Pabillar told the Coast Guard that he had evidence that the crew was bypassing the ship's pollution control equipment and discharging oily bilge waste into the ocean. See Eckard Statement, Administrative Record (“AR”)2 15–17; Simser Statement, AR 18–20; Toepfer Statement, AR 21–26.
The next day, May 4, 2010, the Wilmina arrived at the port, and the Coast Guard boarded the ship to conduct its routine Port State Control Inspection. Port State Control Report of Inspection, AR 3–4. The agency issued a Certificate of Compliance (“COC”), certifying that the vessel had “been examined and found to be in compliance with all applicable U.S. and international marine safety and environmental protection standards.” Certificate of Compliance, AR 5–6. The COC stated that:
Id., AR 6.
During that inspection, Pabillar gave one of Coast Guard officers a flash drive with photos and video, which the inspectors viewed after returning to their office. Simser Statement, AR 18. According to a report from Coast Guard officer Chris Eckard:
The video clearly showed a[n] engine room where a bypass hose (magic pipe) was attached to an overboard discharge valve. The bonnet had been taken out of the valve and that is where the bypass hose had been attached with a flange made for this purpose. The bonnet and stem could be seen laying on the deck near the valve. A dark oil-like substance could be seen seeping out of the connection. The video also showed the entire length of the hose and it connected to the ship[']s piping underneath the deck plates. There was also a video showing the hiding location of the bypass hose. At this point it was determined that a MARPOL violation most likely had occurred and the decision was made to perform an expanded MARPOL inspection on the ship.
Eckard Statement, AR 15–17; AVI files, AR 766–68. As a result, the Coast Guard reboarded the ship later that same day to perform a second, expanded inspection. See AR 27.
At the expanded inspection, the Coast Guard interviewed Pabillar and other crew members, viewed the ship's pollution control and other systems, and collected samples and evidence from the ship. See Eckard Statement, AR 15–16; Simser Statement, AR 19. Pabillar, who had been terminated for cause from the...
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