UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BIMINI SUPERFAST OPERATIONS LLC, et
al,
Plaintiffs,
v.
Civil Action No. 13-1885 (CKK)
THOMAS WINKOWSKI, Acting
Commissioner of U.S. Customs and Border
Protection, et al
Defendants.
MEMORANDUM OPINION
(January 10, 2014)
Plaintiffs Bimini Superfast Operations LLC, Bimini Superfast Limited, and Bimini
Superfast Charter Limited (“Plaintiffs”) have filed suit against Defendant Thomas Winkowski in
his official capacity as Acting Commissioner of the United States Customs and Border
Protection agency and U.S. Customs and Border Protection (“Defendants” or “CBP”),
challenging under the Administrative Procedures Act (“APA”) CBP’s November 2013 decision
prohibiting Plaintiffs from operating their evening “cruise to nowhere” with crewmembers who
hold a D-1 nonimmigrant visa. Presently before the Court is Plaintiffs’ [13] Motion for a
Preliminary Injunction and Defendants’ [18] Motion to Dismiss or, in the alternative, for
Summary Judgment. Upon consideration of the pleadings1, the relevant legal authorities, and the
1
Pl.’s Mot. for Prelim. Inj., ECF No. [13]; Def.’s Opp’n. to Pl.’s Mot. for Prelim. Inj. and
Def.’s Mot. to Dismiss or for Summ. J., ECF No. [18] (“Def.’s Mot.”); Def.’s Stmt. of Material
Facts Not in Dispute, ECF No. [18-4] (“Def.’s Stmt.”); Pl.’s Reply to Opp’n to Mot. for Prelim.
Inj. and Pl.’s Opp’n to Def.’s Mot. to Dismiss, ECF No. [20] (“Pl.’s Opp’n.”); Def.’s.Reply to
Opp’n to Mot. to Dismiss or for Summ. J., ECF No. [25] (Def.’s Reply); Def.’s Supp. Response
1
record as a whole, the Court finds that CBP’s November 2013 determination was a final agency
action, but not an action that violated notice and comment rulemaking procedures under the APA
nor an agency action that was arbitrary, capricious, or contrary to the law. Accordingly,
Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment is DENIED on the
basis that CBP’s November 2013 determination was a final agency action, but GRANTED in
that, on the merits, the November 2013 determination did not violate APA notice and comment
procedures nor was it arbitrary, capricious, or contrary to the law. In light of this decision on the
merits, Plaintiffs’ Motion for a Preliminary Injunction is DENIED AS MOOT. The Court shall
not address Plaintiffs’ Motion for Preliminary Injunction in its Memorandum Opinion, but only
the Defendants’ Motion to Dismiss or, in the alternative, for Summary Judgment.
I. BACKGROUND
As a preliminary matter, the Court notes that it shall cite to Defendants’ Statement of
Material Facts not in Dispute, ECF No. [18-4], as these facts were conceded by Plaintiffs.2
Although Plaintiffs included a footnote in their Opposition to Defendants’ Motion to Dismiss or,
in the alternative, for Summary Judgment stating that these facts “are very much in dispute,” see
Pl.’s Opp’n, at 5 n. 9, this gesture is insufficient to actually dispute the facts. Plaintiffs were
required to respond to Defendants’ Statement of Material Facts not in Genuine Dispute as set
forth in the rules of the U.S. District Court for the District of Columbia. Plaintiffs did not do so.
See LCvR 7(h)(1) & (2) (“An opposition to such a motion [for summary judgment] shall be
accompanied by a separate concise statement of genuine issues setting forth all material facts as
to Order of Court, ECF No. [26]; Pl.’s Supp. Response to Order of Court, ECF No. [27];
Administrative Record, ECF No. [29].
2
When a document is part of the administrative record, ECF No. [29], the Court will also
cite to the administrative record (“AR”).
2
to which it is contended there exists a genuine issue necessary to be litigated, which shall include
references to the parts of the record relied on to support the statement.”). In any event, the facts
presented in Defendants’ Statement of Material Facts not in Dispute and relied upon by the Court
are either not actually disputed by Plaintiffs or are supported by exhibits provided by both parties
along with their pleadings.
A. Factual Background
In 2013, Plaintiffs began a high-speed cruise business using a vessel called “Resorts
World Bimini Superfast” that operated out of the Port of Miami. See Def.’s Stmt. ¶ 1. Between
July 20, 2013, and September 15, 2013, Plaintiffs operated two daily cruises between Miami and
Bimini where passengers would disembark at the foreign port of Bimini in the Bahamas. Id. ¶ 3,
6. On August 23, 2013, a representative of Plaintiffs emailed CBP asking whether it could
“confirm (in writing if possible) that if we [Plaintiffs] go for the closed loop cruise to Bimini,
without any movement of passengers off or on the ship, an ID will be enough for CBP and they
will not process the passengers?” Id. ¶ 8; AR 31. CBP responded that this itinerary was a
“cruise to nowhere,” meaning a cruise that departs a U.S. port of entry, enters international
waters without touching a foreign place, and returns to the same U.S. port of entry with no
passengers or crew boarding or departing the vessel, and that this type of cruise would not
require CBP processing of passengers. Id. ¶ 9; AR 30-31. Subsequently, on or around
September 21, 2013, Plaintiffs began operating “cruises to nowhere” that departed Miami in the
evening, sailed out into international waters, and returned to the port of Miami in the early
morning hours. Id. ¶ 10. Plaintiffs used the same crewmembers to operate the day cruises to
Bimini and the evening “cruises to nowhere.” Compl. ¶ 70.
On October 23, 2013, Plaintiffs approached the Port Everglades Seaport in Ft.
Lauderdale, Florida to inquire about beginning a “cruise to nowhere” that would begin and end at
3
that port. Def.’s Stmt. ¶ 11. Plaintiffs subsequently informed CBP that they sought to operate a
“cruise to nowhere” out of Fort Lauderdale and had been operating the Miami cruise with
crewmembers holding D-1 visas. Id. ¶ 12. Shortly thereafter, CBP officials requested a meeting
to explain to Plaintiffs that if they wished to continue operating “cruises to nowhere,” they must
employ persons legally authorized to work in the United States since such cruises did not touch a
foreign port making the voyage entirely domestic and rendering it ineligible to be crewed by
individuals with D-1 visas. Id. ¶ 13. CBP officials met with Plaintiffs on October 28, 2013, and
communicated this information to Plaintiffs in person. Id. ¶ 14.
B. Procedural History
On October 30, Bill Olejasz, CBP Port Director of the Port of Miami, sent Plaintiffs a
letter indicating that the crewmembers on Plaintiffs’ evening “cruise to nowhere” who possessed
D-1 visas were not in compliance with Immigration and Nationality Act (“INA”) Section
101(a)(15)(D)(i), which defines a nonimmigrant alien as:
An alien crewman serving in good faith as such in a capacity required for normal
operation and service on board a vessel . . . who intends to land temporarily and
solely in the pursuit of his calling as a crewman and to depart from the United
States with the vessel or aircraft on which he arrived or some other vessel or
aircraft.
Compl., Ex. B; AR 13-14 (October 30, 2013 CBP letter) (emphasis added). The October 2013
letter explained that crewmembers on Plaintiffs’ “cruise to nowhere” fail to satisfy the
“departure” element of INA § 101(a)(15)(D)(i) because, pursuant to a 1955 Board of
Immigration Appeals (“BIA”) opinion, “one does not depart the United States until one has been
admitted into a foreign country or enters foreign territory without inspection.” Id. As the
crewmembers on the evening excursions “will not depart the United States and do not land
temporarily and solely in pursuit of their calling as a crewmen [sic],” the crewmembers were not
in compliance with the D-1 visa requirements. Id. The letter noted that “the CBP has
4
consistently determined that crewmembers who possess D-1 visas are not eligible to work aboard
vessels operating as a cruise to nowhere.” Id. The letter concluded that “in order to operate a
cruise to nowhere, the alien crewmembers must be replaced with U.S. citizens and/or lawful
permanent residents in order to continue to operate lawfully.” Id. The CBP granted Plaintiffs a
“grace period” until November 3, 2012, “to comply with these requirements” and indicated the
contact information of the Miami Director of Field Operations, Vernon Foret, in the event
Plaintiffs “wish[ed] to appeal this decision.” Id.
On November 4, 2013, Plaintiffs sent a letter of appeal to Mr. Foret, which included five
pages of legal argument as to why Plaintiffs’ “cruise to nowhere” was operating in compliance
with United States law. See Compl. Ex. C; AR 15-19 (November 4, 2013 Plaintiffs’ Appeal
Letter). Plaintiffs essentially made two arguments. First, Plaintiffs argued that CBP agency
decisions have long held that “cruises to nowhere” are not coastwise trade subject to coastwise
laws and thus do not “trigger any U.S. citizen crewing requirement.” Id. at 3; AR 17. Second,
Plaintiffs argued that the D-1 crewmembers are in compliance with the requirements of the INA
because the crewmembers “do intend and in fact depart daily [on the cruise to Bimini], enter a
foreign port, and enter the U.S. temporarily and solely for the purpose of performing their duties
on board the vessel.” Id. at 4-5; AR 18-19.
Miami Director of Field Operations Vernon Foret denied Plaintiffs’ appeal in a letter
dated November 7, 2013 (“November 2013 determination”). See Compl. Ex. E; AR 22-23
(November 7, 2013 CBP Letter). In his letter, Mr. Foret explained that Plaintiffs’ evening
“cruise to nowhere” is a “separate, revenue-generating cruise, with its own manifest of paying
passengers. . . . It is a distinct voyage of a type that consistently has been denied permission to
operate in the Miami Field Office area of responsibility without United States Citizen (USC) or
5
Lawful Permanent Resident (LPR) crewmen.” Id. at 1; AR 22. Mr. Foret conceded that “cruises
to nowhere” are not considered coastwise trade and that, therefore, requirements imposed by the
coastwise laws [which include certain immigration requirements] are not applicable. Id.
However, Mr. Foret stated that “immigration laws are indeed relevant and applicable to cruises
to nowhere.” Id. Mr. Foret noted that while Plaintiffs’ “D-1 crewmen depart the United States
foreign each day on the international cruise and are in compliance to operate as crewmen
involved in international cruises to and from the Bahamas . . . the D-1 crewman visa status does
not allow for these crewmen to operate a separate, revenue-generating cruise to nowhere
excursion” and reiterated the reasons set forth in the October 2013 CBP letter. Id. at 2; AR 23.
In addition, Mr. Foret noted that the applicable regulations, specifically, 8 C.F.R. § 214.2(d)(1),
stated that “[a]n alien in this status [D-1 crewman] may be employed only in a crewman capacity
on the vessel or aircraft of arrival, or on a vessel or aircraft of the same transportation company,
and may not be employed in connection with domestic flights or movements of a vessel.” Id.
Mr. Foret explained “that the cruise to nowhere is a domestic movement of its vessel” and that
Plaintiffs’ “crewmen are working in the United States, not as crewmen but as employees of a
vessel providing entertainment within the United States.” Id. Mr. Foret found that Plaintiffs’
own position that their evening “cruise to nowhere” did not need to comply with manifest and
inspections requirements as the vessel and crew were not arriving in the United States because
the vessel did not depart the United States supported CBP’s position. Id. Mr. Foret concluded:
For these reasons [Plaintiffs’] cruise to nowhere voyages contravene the INA, and
these operations must cease until such time as USC or LPR employees are
retained to operate those voyages. This office will grant [Plaintiffs] a grace
period until November 28, 2013, to comply with these requirements.
Id.
6
On November 22, 2013, Plaintiffs requested and were granted a meeting with senior CBP
officials in Washington, D.C. Compl. ¶ 11; Def.’s Stmt. ¶ 22. At the meeting, the CBP officials
reiterated to Plaintiffs the position that federal law prevented individuals lacking authorization to
work in the United States from operating “cruises to nowhere.” Compl. ¶ 11; Def.’s Stmt. ¶ 23.
One day before the end of the grace period, Plaintiffs filed suit in this Court against CBP
seeking injunctive and declaratory relief under the Administrative Procedures Act (“APA”). In
their Complaint, Plaintiffs alleged that CBP’s “newfound position [interpreting INA Section
101(a)(15)(D)(1) and 8 C.F.R. § 214.2(d)(1)] is arbitrary, capricious, and contrary to law” and
was issued without an opportunity for notice or comment in violation of the APA. Compl. ¶ 43-
44, 76. On December 13, 2013, Plaintiffs filed a Motion for Preliminary Injunction to Preserve
the Status Quo Pending Judicial Review and requested that the Court stay the effectiveness of the
November 2013 CBP determination pending the outcome of the underlying suit. See Preliminary
Injunction, ECF No. [13]. On December 20, 2013, in addition to filing their opposition to
Plaintiffs’ Motion for a Preliminary Injunction, Defendants filed a Motion to Dismiss or, in the
Alternative, for Summary Judgment. See Defendants’ Motion, ECF No. [18]. The original
briefing schedule established by the parties and the Court contemplated a decision from the
Court by January 6, 2014. However, additional briefing was required from the parties on a
discrete issue. In addition, it came to the Court’s attention that the Defendant-Government had
not filed the administrative record. The Court received the administrative record on January 7,
2014. See Administrative Record, ECF No. [29]. On January 10, 2014, the Court issued an
Order and Memorandum Opinion explaining the proper scope of the administrative record and
approving the record submitted by Defendants on January 7, 2014. See Jan. 10, 2014 Order &
Mem. Op., ECF Nos. [34], [35]. Accordingly, this matter is now ripe for review.
7
II. DISCUSSION
Defendants move the Court to dismiss Plaintiffs’ case or, in the alternative, grant
summary judgment in Defendants’ favor on two bases. First, Defendants argue that CBP’s
November 2013 decision did not constitute “final agency action” and thus the Court is without
subject matter jurisdiction to hear Plaintiffs’ claims or, alternatively, must dismiss Plaintiff’s
case for failure to state a claim under the APA. Second, Defendants argue that Plaintiffs’
complaint cannot survive because it is predicated on the assumption that U.S. immigration
officials have allowed “cruises to nowhere” to be operated with foreign crewmembers holding
only D-1 visas for over 20 years, when in fact CBP has consistently stated the opposite. The
Court addresses each basis for Defendants’ Motion in turn.
A. Final Agency Action
Under the APA, only “[a]gency action made reviewable by statute and final agency
action for which there is no adequate remedy in a court” is subject to judicial review. 5 U.S.C. §
704. In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme Court held that two conditions must
be satisfied for a plaintiff to make the threshold showing of final agency action:
First, the action must mark the “consummation” of the agency’s decision making
process – it must not be of a merely tentative or interlocutory nature. And second,
the action must be one by which “rights or obligations have been determined,” or
from which “legal consequences will flow.”
Id. at 177-78. In evaluating the finality of a pre-enforcement agency decision, such as the one
presently at issue, courts in the D.C. Circuit often evaluate three additional factors set forth in
Ciba-Geigy Corp. v. U.S. E.P.A., 801 F.2d 430 (D.C. Cir. 1986) as a complement to the Bennett
analysis. See CSI Aviation Services, Inc. v. U.S. Dept. of Transp., 637 F.3d 408, 411 (D.C. Cir.
2011). These factors are: (1) whether the agency has “taken a ‘definitive’ legal position
concerning its statutory authority”; (2) whether “the case presented ‘a purely legal’ question of
8
‘statutory interpretation’”; and (3) whether “the agency’s letter imposed an immediate and
significant practical burden on [Plaintiff].” Id. at 412 (quoting Ciba-Geigy, 801 F.2d at 435-37).
Defendants argue that CBP’s November 2013 determination satisfies none of these conditions.
There is little question that the November 2013 determination met the second Bennett
condition in so far as it “determined” “rights or obligations” of the Plaintiffs. Based on the
specific facts of Plaintiffs’ case, the letter clearly made a legal determination that Plaintiffs’
“cruise to nowhere voyages contravene the INA” and ordered that “these operations must cease
until such time as USC or LPR employees are retained to operate those voyages.” Compl. Ex. E,
at 2; AR 22-23 (emphasis added). The letter also gave a grace period for Plaintiffs to come into
compliance with this legal order strongly implying that the agency would bring an enforcement
action. In Sackett v. E.P.A., 132 S.Ct. 1367 (2012), the Supreme Court recently found an agency
decision to “determine” “legal obligations” in a similar set of circumstances. In Sackett, the
E.P.A. had sent plaintiffs a pre-enforcement compliance order stating that plaintiffs had violated
the Clean Water Act by discharging fill material on their property and directing plaintiffs to
“immediately [] undertake activities to restore [their property] in accordance with a Restoration
Work Plan” and to “provide and/or obtain access to the Site . . . to EPA employees. . . .” Id. at
1371. The Court found the E.P.A. order determined legal obligations because “by reason of the
order,” plaintiffs were required to “restore” their property and give the E.P.A access to their
property even though the E.P.A. had not taken steps to actually enforce the order.3 Id. See also
3
Defendants attempt to distinguish this case from Sackett on the basis that penalties do
not immediately flow from the November 2013 letter. In Sackett, the Court noted that the
E.P.A’s compliance order had legal consequences because the order itself exposed Plaintiffs to
double penalties in a future enforcement proceeding, among other things. Sackett, 132 S.Ct. at
1371-2. While this fact was relevant to the Court’s analysis, it was not dispositive, which is
consistent with the language found in Bennett: the agency action must be one by which “rights or
9
CSI Aviation Services, 637 F.3d at 412 (finding Department of Transportation letter to Plaintiff
“imposed an immediate and significant burden” on plaintiff on the basis that it informed plaintiff
that it had been acting as an unauthorized indirect air carrier in violation of the Federal Aviation
Act, “warned” Plaintiff to “cease and desist from any further activity that would result in it
engaging in indirect air transportation,” and gave Plaintiff a 180-day grace period to comply); cf.
Holistic Candlers and Consumers Ass’n v. Food & Drug Admin., 664 F.3d 940, 944 (D.C. Cir.
2012) (agency letter did not determine legal obligations where agency letter “requested” that
plaintiffs take prompt voluntary action, which, if not promptly taken, “may” lead to enforcement
actions). Accordingly, the Court finds the November 2013 determination satisfies the second
Bennett prong.
It is a far closer question, however, as to whether the November 2013 letter marked the
“consummation” of the CBP’s decision making process. Defendants argue that the November
2013 letter cannot constitute a final agency action because “even if the letters contemplated
enforcement actions, CBP has not initiated any such enforcement actions, which would be
initiated by a Notice of Intention to Fine [pursuant to 8 C.F.R. § 280.1] (which could be
challenged before the BIA), or discretionary determinations by CBP officers regarding the
issuance of conditional landing permits.” Def.’s Mot. at 14. While the facts of this case do not
allow for a clear cut answer on this issue, the Court is persuaded that the Ciba-Geigy factors
weigh in favor of treating the letter as a final agency action and granting judicial review.
Although Defendants attempt to convince the Court of their position with a lengthy
discussion of the several different types of enforcement actions the agency could bring and the
obligations have been determined,” or from which “legal consequences flow.” Bennett, 520 U.S.
at 177-78 (emphasis added).
10
further administrative review attached to certain of those actions, the Court still finds that CBP
has “taken a ‘definitive’ legal position concerning its statutory authority” that is not subject to
“further agency consideration or modification.” Ciba-Geigy, 801 F.2d at 436-37. Here, upon
learning of Plaintiffs’ activities, CBP contacted Plaintiffs at the end of October 2013 to inform
them that they were unlawfully operating the “cruise to nowhere” with crewmembers holding
only D-1 visas. The CBP then sent a formal letter to Plaintiffs outlining the agency’s legal
position, giving Plaintiffs a three-day grace period in which to comply with the law, and
indicating how Plaintiffs could “appeal this decision” to a higher official within CBP in Miami.
In response, Plaintiffs sent a five-page appeal letter with legal argument to the Miami Director of
Field Operations who denied the appeal in a November 2013 letter and in no uncertain terms
reiterated at length CBP’s position that Plaintiffs had violated the law and were continuing to do
so. The November 2013 letter further ordered Plaintiffs to “cease” operations until they were in
compliance with immigration law and gave Plaintiffs a twenty-one-day grace period in which to
comply. Plaintiffs then met with senior CBP officials in Washington, D.C. who confirmed the
agency’s position. These facts are similar to the facts on which the Court of Appeals for the
D.C. Circuit relied in the case of CSI Aviation Services when the appellate court found that the
Department of Transportation (“DOT”) had issued a “definitive” statement of the agency’s legal
position. CSI Aviation Services, 637 F.3d at 412 (quoting Ciba-Geigy, 801 F.2d at 437). In CSI
Aviation Services, the DOT sent CSI a letter indicating that it had been acting as an unauthorized
indirect air carrier in violation of the Federal Aviation Act. Id. at 410. The agency “warned”
CSI to “cease and desist” from any further activity that would result in engaging in indirect air
transportation” and gave CSI a grace period to bring their activities into compliance with the law.
Id. CSI submitted a petition to DOT for an exemption from the certification requirement and
11
presented legal arguments as to why DOT’s interpretation of the law was misguided. Id. DOT
granted CSI a temporary exemption, but indicated in the exemption order that DOT retained the
same legal view. Id. at 411. CSI then filed suit in district court prior to the expiration of the
temporary exemption. Id. In finding DOT to have taken a final action, the appellate court relied
upon the fact that DOT had issued a “definitive” statement when it “declared in no uncertain
terms” that CSI had violated the law in its initial warning letter and reiterated that position after
CSI protested and presented its legal argument as to why DOT was misinterpreting the law. Id.
at 412. The appellate court found that the warning letter and exemption order “gave no
indication that [the agency’s legal position] was subject to further agency consideration or
possible modification.” Id.
Likewise here, CBP’s November 2013 letter did not simply make a “preliminary
determination” that Plaintiffs conduct was unlawful, see Reliable Automatic Sprinkler Co., Inc.
v. Consumer Product Safety Commission, 324 F.3d 726, 730 (D.C. Cir. 2003), or suggest that
further information and agency deliberation was required before the agency could definitively
determine the conduct was unlawful, see Holistic Candlers, 664 F.3d at 944. Instead, CBP, in its
communications with Plaintiffs, repeatedly stated “in no uncertain terms” that Plaintiffs’ conduct
violated federal immigration laws. CSI Aviation Services,637 F.3d at 412. See also City of
Dania Beach v. FAA, 485 F.3d 1181, 1188 (D.C. Cir. 2007) (finding an agency letter to
constitute final agency action where “[n]othing in the letter indicate[d] that the [agency’s]
statements and conclusions [were] tentative, open to further consideration, or conditional on
future agency action.”). Accordingly, as the Court of Appeals did in CSI Aviation Services Inc.,
this Court finds that CBP has given a “definitive” legal position. Ciba-Geigy, 801 F.2d at 437.
12
Defendants argue, however, that CBP’s position is subject to further agency
consideration because Plaintiffs “have administrative remedies and an administrative appeal
process available to them.” Def.’s Reply at 7 (emphasis added). Specifically, Defendants cite to
8 C.F.R. § 280.12, which states that within thirty days of receiving a Notice of Intention to Fine,
any person upon whom such a notice has been served “may file” a “written defense setting forth
the reasons why a fine should not be imposed,” and § 1280.1(b), giving the Board of
Immigration Appeals “appellate authority to review DHS decisions involving fines.” However,
the facts relevant to CBP’s position are undisputed and thus CBP’s position represents a “purely
legal” question of “statutory interpretation”—the second Ciba-Geigy factor to consider. Thus,
even if Plaintiffs “may” file a written defense after receiving a Notice of Intention to Fine, “in
the absence of disputed facts that would bear on the statutory question, there [is] no benefit in
waiting for the agency to develop a record for granting judicial review.” CSI Aviation Services,
637 F.3d at 411; cf. Reliable Automatic Sprinkler, 324 F.3d at 734 (finding no final agency
action in part because the question whether the statutory term ‘consumer product’ included
plaintiff’s sprinkler heads, and thus gave the Commission statutory authority to regulate plaintiff,
was not a purely legal one, since the application of the statutory term to the sprinkler heads
would “clearly involve the resolution of factual issues and the creation of a record”).
Furthermore, in this case, any review or appeal under these regulations would presumably
focus on the grounds for imposing a specific fine, not the legal question at issue here. Cf.
Reliable Automatic Sprinkler, 324 F.3d at 733 (“a hearing before the Commission will not be an
idle gesture, because the agency has made it clear that the interpretation of “consumer product”
with respect to sprinkler heads remains to be determined.”). Indeed, the further agency action
available here is distinct from the type of agency action that courts have found to preclude a
13
finding that the agency decision making process has been “consummated.” For example, in
Holistic Candlers, the Court of Appeals for the D.C. Circuit found the FDA’s letter was not a
final agency action because the agency “may only ban devices after going through a formal
process that it has not undertaken here.” 664 F.3d at 945. Likewise, in Reliable Automatic
Sprinkler, the Court of Appeals found no final agency action where the Consumer Product Safety
Commission issued a preliminary determination that plaintiff’s sprinklers violated the law, but
was required by statute to bring a formal, on-the-record adjudicative administrative proceeding
before it could make any legally binding determination. 324 F.3d at 731-32. Importantly, even
though plaintiff in that case sought a declaratory judgment that the Commission was acting
outside its jurisdiction—a largely legal question—the appellate court found that the Commission
had “not as yet made a record determination that it has jurisdiction over [plaintiff’s] sprinkler
heads,” which it could only do by filing an administrative complaint. Id. at 730. In these cases,
further agency procedures were required before the agency could even make a definitive decision
about the legality of the plaintiffs’ actions. Here, CBP’s declarations of Plaintiffs unlawfulness
are not conditioned on further agency action. Having definitively declared the illegality of
Plaintiffs’ activities, any further agency action—if Plaintiff chooses to engage in it—comes at
the enforcement stage. There is no indication that any such enforcement process would change
CBP’s legal position or require that an agency record be developed given the purely legal nature
of CBP’s position.
Defendants also argue that “other enforcement options are available under the statute,”
such as “simply ordering the crew to be detained on board or removed [under 8 U.S.C. §§ 1282,
1284(a)(2)] without ever issuing any penalties” and thus Plaintiffs do not necessarily face any
imminent penalties from CBP’s November 2013 letter. Def.’s Reply at 7. As an initial matter,
14
the Court fails to see how 8 U.S.C. § 1284(a)(2) and § 1282(b) do not penalize the employer
since both provisions require an employer to detain an employee on board and the latter requires
the master or commanding officer of the vessel on which the illegal crewman arrived to, in
addition, “remove[] [the crewman] from the United States at the expense of the transportation
line which brought him to the United States” and bear “the expenses of his detention” until
removed. Furthermore, if Defendants choose to take this enforcement action against Plaintiffs, it
is unclear to the Court, and the Defendants have not indicated, what administrative review, if
any, would occur before the CBP took that action. In any event, as described above, the CBP has
definitively stated its statutory authority for determining that Plaintiffs are employing illegal
crewman, and that position is based on undisputed facts and a statutory interpretation which will
not be aided by any further administrative deliberations.4
The Supreme Court in Bennett “highlight[ed] the importance of avoiding disruption of
the administrative decisionmaking process, but it d[id] not foreclose all pre-enforcement
challenges.” CSI Aviation Services, 637 F.3d at 411. Where, as here, CBP has taken an action
which imposes a clear legal obligation on Plaintiffs to cease their operations until their
4
Defendants also argue that Plaintiffs fail to state a claim under the APA because the APA
only allows review of final agency action “for which there is no adequate remedy in a court.” 5
U.S.C. § 704. However, in making their argument, Defendants only argue that there are other
administrative remedies available to Plaintiffs, apparently forgetting that the statutory language
only speaks of “adequate remed[ies] in a court.” The Supreme Court has affirmed that the
analysis of “adequate remedies” is limited to remedies in a court. See Bowen v. Massachusetts,
487 U.S. 879, 903 (1988) (explaining that “[w]hen Congress enacted the APA to provide a
general authorization for review of agency action in the district courts, it did not intend that
general grant of jurisdiction to duplicate the previously established special statutory procedures
relating to specific agencies,” such as statutes setting out that “Federal Trade Commission and
National Labor Relations Board orders were directly reviewable in the regional courts of appeals,
and Interstate Commerce Commission orders were subject to review in specially constituted
three-judge district courts.”); see also Sackett, 132 S.Ct. at 1372 (finding that there was “no other
adequate remedy in a court” because plaintiffs did not have alternative routes to “judicial
review,” specifically they could not initiate a civil action in court under the Clean Water Act).
Accordingly, Defendants’ argument on this point is unavailing.
15
crewmembers are in compliance with federal immigration law, and expressed a definitive
position that presents a legal question of statutory interpretation that is not conditioned on or
subject to modification by further agency action, the Court is assured that it can treat this pre-
enforcement agency action as final without disruption of the administrative decisionmaking
process.5
B. Merits of CBP’s November 2013 Determination
The Court now turns to Defendants’ Motion to Dismiss or, in the Alternative, for
Summary Judgment on the merits of Plaintiffs’ underlying complaint. Although styled in the
alternative as a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6),
both parties rely on materials, notably affidavits, that are outside the scope of the pleadings.
Federal Rule of Civil Procedure 12(d) requires a motion to dismiss under Rule 12(b)(6) to be
treated as a motion for summary judgment, “if matters outside the pleadings are presented to, and
5
Defendants argue that the Court should dismiss Plaintiffs’ action under either Fed. R. Civ. P
12(b)(6), for failure to state a claim under the APA, which requires final agency action in order
for a plaintiff to have a cause of action, or under Fed. R. Civ. P. 12(b)(1), because some panels in
this Circuit have held that the issue of whether an agency action is final under the APA is
jurisdictional. Indeed, from the 1980s to 2005, the Court of Appeals for the D.C. Circuit
repeatedly held that the APA's reviewability provisions were jurisdictional notwithstanding a
footnote in a Supreme Court opinion, Air Courier Conference v. Am. Postal Workers Union, 498
U.S. 517, 523 n. 3 (1991), observing that the judicial review provisions of the APA are not
jurisdictional. See, e.g., Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588, 594 (D.C. Cir.
2001). However, since 2006, and the Court of Appeals’ decisions in Center for Auto Safety v.
NHTSA, 452 F.3d 798, 805 (D.C. Cir. 2006), and Trudeau v. FTC, 456 F.3d 178 (D.C. Cir.
2006), panels have held with increasing confidence that whether an agency action is final under
the APA is not a jurisdictional question. See, e.g., Vietnam Veterans of America v. Shinseki, 599
F.3d 654, 661 (D.C. Cir. 2010) (“We think the proposition that the review provisions of the APA
are not jurisdictional is now firmly established.”). In any event, this distinction is irrelevant
because the Court finds CBP’s November 2013 determination was a final agency action and
grants Defendants’ Motion on their alternative basis—that CBP’s interpretation of federal
immigration law did not violate notice and comment requirements and is not arbitrary and
capricious.
16
not excluded by the court.” Plaintiffs do not contend that there are any facts in material dispute
and do not contest that Defendants’ Motion should not be treated as a motion for summary
judgment. Accordingly, the Court shall treat Defendants’ Motion solely as one for summary
judgment.
1. Legal Standard
Plaintiff’s Complaint challenges the CBP’s November 2013 determination as violating
notice and comment procedures and as being “arbitrary, capricious, and contrary to the law.”
Compl. ¶ 43-44, 76.
a. Review of Agency Determinations under the APA
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment
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.” However, “when a party seeks review of agency action
under the APA [before a district court], the district judge sits as an appellate tribunal. The ‘entire
case’ on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083
(D.C. Cir. 2001). Accordingly, “the standard set forth in Rule 56 does not apply because of the
limited role of a court in reviewing the administrative record . . . Summary judgment is [ ] the
mechanism for deciding whether as a matter of law the agency action is supported by the
administrative record and is otherwise consistent with the APA standard of review.” Southeast
Conference v. Vilsack, 684 F.Supp.2d 135, 142 (D.D.C. 2010).
A reviewing court can set aside agency action if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right,” or “without observance of procedure
required by law.” 5 U.S.C. §§ 706(2)(A), (C), (D). An agency's decision may be arbitrary or
17
capricious if any of the following apply: (i) its explanation runs counter to the evidence before
the agency or is so implausible that it could not be ascribed to a difference of view or the product
of agency expertise; (ii) the agency entirely failed to consider an important aspect of the problem
or issue; (iii) the agency relied on factors which Congress did not intend the agency to consider;
or (iv) the decision otherwise constitutes a clear error of judgment. Motor Vehicle Mfrs. Ass'n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); accord Jicarilla Apache
Nation v. U.S. Dep't of Interior, 613 F.3d 1112, 1118 (D.C. Cir. 2010).
In addition, “[a]s a general matter, an agency's interpretation of the statute which that
agency administers is entitled to Chevron deference.” Fox v. Clinton, 684 F.3d 67, 75 (D.C. Cir.
2012) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984)). In the
first step of the Chevron analysis, the Court reviews the statute de novo to determine whether or
not the statute is ambiguous. Id. at 842–43. If the statute is ambiguous, the Court then must
defer to the agency's interpretation of the statute unless it is “manifestly contrary to the statute.”
Id. at 844. Thus, the inquiry for the Court under the second step of Chevron is whether the
agency's interpretation of Congress' instructions is reasonable. The Court's inquiry under the
second step of Chevron “overlaps with [the Court's] inquiry under the arbitrary and capricious
standard.” Am. Fed'n of Gov't Employees, AFL–CIO, Local 446 v. Nicholson, 475 F.3d 341,
345–46 (D.C. Cir. 2007). “Whether a statute is unreasonably interpreted is close analytically to
the issue whether [sic] an agency's actions under a statute are unreasonable.” Gen. Instrument
Corp. v. Fed. Commc'ns Comm'n, 213 F.3d 724, 732 (D.C. Cir. 2000).
Plaintiff, as 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) (citing City of
Olmsted Falls v. Fed. Aviation Admin., 292 F.3d 261, 271 (D.C. Cir. 2002)). In assessing the
18
merits of Plaintiff's challenge, the Court begins with the presumption that the agency’s actions
were valid. Grid Radio v. Fed. Commc'ns Comm'n, 278 F.3d 1314, 1322 (D.C. Cir. 2002). So
long as the agency decision has some rational basis, the Court is bound to uphold it. Hosp. of
Univ. of Penn. v. Sebelius, 634 F.Supp.2d 9, 13 (D.D.C. 2009) (citing Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).
b. Notice and Comment Rulemaking Requirements
Notice and comment rulemaking procedures are required under the APA when
substantive rules are promulgated, modified, or revoked. American Tort Reform Ass’m v. OSHA,
--- F.3d ---, 2013 WL 6818711, *6 (D.C. Cir. 2013) (citing 5 U.S.C. § 553) (emphasis added).
The APA defines a “rule” as “an agency statement of general or particular applicability and
future effect designed to implement, interpret, or prescribe law or policy or describing the
organization, procedure, or practice requirements of an agency and includes . . . practices bearing
on any of the foregoing.” 5 U.S.C. § 551(4). Substantive or legislative rules are those that
“grant rights, impose obligations, or produce other significant effects on private interests,”
Batterton v. Marshall, 648 F.2d 694, 701–02 (D.C. Cir. 1980) (citations omitted), or which
“effect a change in existing law or policy,” Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir. 1984)
(quotations omitted). Interpretative rules, general statements of policy, and rules of agency
organization, procedure, or practice, however, are expressly excluded from the APA’s notice and
comment requirements for rulemaking. See 5 U.S.C. § 553(b).
2. Discussion
Plaintiffs argue that in determining Plaintiffs’ “cruise to nowhere” could not be manned
by foreign crewmembers holding only D-1 visas, CBP reversed its “longstanding administrative
interpretation and practice” under the Passenger Vessel Services Act (“PVSA”) and the INA,
19
permitting the operation of cruises to nowhere using foreign crews. Compl. ¶¶ 2-5; Pl.’s Opp’n.
at 20. Plaintiffs allege that CBP’s decision to reverse its prior interpretation in the November
2013 letter violated notice and comment rulemaking requirements and was arbitrary, capricious,
and contrary to the law. Compl. ¶ ¶ 43-44, 76. As evidence that CBP’s November 2013
determination represented a modification of CBP’s “longstanding interpretation and practice”
regarding “cruises to nowhere,” Plaintiffs point to (1) United States Customs rulings interpreting
the PVSA, and (2) CBP general practices and specific assurances suggesting that Plaintiffs could
operate their “cruise to nowhere” with a foreign crew. Defendants respond that the November
2013 determination “simply refined the contours of an already existing legal norm set forth in the
[INA], [Immigration and Naturalization Service] General Counsel Opinions from 1989 and
1991, BIA precedent from 1955, and the agency’s regulations,” which have consistently required
that all “cruises to nowhere” abide by federal immigration law. Def.’s Mot. at 22, 27. The Court
begins by considering the evidence presented by Plaintiffs before turning to Defendants’
evidence and determining whether CBP’s November 2013 determination violated notice and
comment requirements or was arbitrary, capricious, or contrary to the law.
a. CBP Interpretations of Coastwise Laws
In arguing that CBP’s “longstanding position” has been to permit “cruises to nowhere”
manned by foreign crewmembers, Plaintiffs rely primarily on United States Customs rulings
holding that “cruises to nowhere” are “not considered coastwise trade” and thus non-coastwise
qualified vessels are permitted to operate such cruises. Defendants concede in their November
2013 determination that “cruises to nowhere” are not considered coastwise trade and “therefore,
requirements imposed by coastwise laws are not applicable.” Compl. Ex. E; AR 22-23
(November 7, 2013 CBP Letter), at 1. However, this concession and these specific U.S.
Customs rulings are inapposite. The rulings on which Plaintiffs rely only answer the specific
20
question of whether a “foreign-flagged vessel” can operate a “cruise to nowhere” in light of the
PVSA’s prohibition of foreign vessels in coastwise trade. None of the rulings mention, much
less opine, on the question of foreign crewmembers and their authorization to work on such
cruises. See HQ 111490 (Feb. 27, 1991); HQ 112216 (May 20, 1992); HQ 113846 (May 5,
1997); HQ HO55001 (March 20, 2009). Plaintiffs concede as much in their pleadings: “it is
certainly true that the CBP prior rulings . . . do not opine specifically on the issue of D-1
crewmembers.” Pl.’s Opp’n. at 28. Nevertheless, Plaintiffs argue that since the rulings “all
concern non-coastwise qualified [i.e. foreign] vessels, which are commonly understood to have a
crew that is primarily if not exclusively foreign” the rulings should be read as allowing foreign-
crewed vessels to conduct “cruises to nowhere.” Id.; see also id. at 20 (“In each of these
[rulings], CBP knew or should have known that the crews of those vessels were likely also
foreign, without mentioning the latter fact.”). In essence, Plaintiffs argue that in repeatedly
ruling pursuant to the coastwise statute that foreign-flagged vessels could operate “cruises to
nowhere” CBP was actually “definitively” determining that foreign-crewed vessels could operate
“cruises to nowhere” pursuant to all applicable laws.
The Court finds that Plaintiffs’ argument, which is based on an alleged “common
understanding,” is grossly insufficient to show that CBP has had a “longstanding” policy of
allowing “cruises to nowhere” to be operated by foreign crews.6 At most, one could infer from
6
To further support their reasoning, Plaintiffs point to remarks made by Congressman
Gerry Studds in relation to a bill introduced in the 103rd Congress that Plaintiffs claim was
“designed to amend the PVSA to bring cruises to nowhere within the definition of coastwise
trade.”
[U]nder an unusual interpretation by the Customs Service, if a vessel leaves a
U.S. port, sails beyond the 3-mile territorial sea, and returns to the original port,
then it can be foreign-flag, built in a subsidized foreign shipyard, owned by
foreign citizens, and manned by low wage foreign personnel.
21
the U.S. Customs rulings that by interpreting “cruises to nowhere” as non-coastwise trade, CBP
has interpreted such cruises as being exempt from all coastwise trade laws including the
coastwise laws that impose citizenship requirements on certain vessels. However, even if
Plaintiffs can argue that the CBP has long held that “cruises to nowhere” are exempt from the
citizenship requirements of coastwise trade laws, this does not mean that such cruises are exempt
from federal immigration laws. The Court finds nothing in the U.S. Customs rulings that can be
read as exempting “cruises to nowhere” from federal immigration laws. Moreover, Defendants
present strong evidence that the CBP (and formerly the INS) has in fact long interpreted federal
immigration laws to apply to “cruises to nowhere” and their crewmembers. See, e.g., M/V
Southern Elegance, 1 Imm. & Natural. Serv. & Dep’t of Justice Legal Op. § 91-4 (Jan. 11, 1991)
(“Employment of aliens on board the Southern Elegance to conduct “cruises to nowhere” must
be done in compliance with the immigration laws of the United States.”). As Plaintiffs cannot
even point to a U.S. Customs ruling stating that “cruises to nowhere” can be manned by foreign
crew, much less a ruling opining that federal immigration laws do not apply to “cruises to
nowhere,” Plaintiffs cannot argue that CBP’s November 2013 determination applying federal
immigration law to Plaintiffs’ “cruise to nowhere” represents a “significant revision” to the
139 Cong. Rec. H 10-391 (Nov. 20, 1993). Plaintiffs also point to similar remarks made by
Congressman Jack Fields. See Pl.’s Opp’n. at 2 n. 4. The Court does not find these citations
persuasive. These remarks occurred in the context of legislation that Congress considered but
failed to enact. Furthermore, CBP is not bound by the opinions of a member of Congress on a
statute; nor is the opinion of a Member of Congress authoritative as to the agency’s position. See
United States v. Southwestern Cable Co., 392 U.S. 157, 170 (1994) (“[T]he views of one
Congress as to the construction of a statute adopted many years before by another Congress have
very little, if any, significance.”). Moreover, the Congressmen’s statements dealt with an
interpretation of the PVSA and do not address any application of federal immigration law to
“cruises to nowhere.”
22
CBP’s prior interpretation of “cruises to nowhere” that requires notice and comment procedures.
Cf. Alaska Professional Hunters Ass’n, Inc. v. F.A.A., 177 F.3d 1030 (D.C. Cir. 1999) (holding
notice and comment procedures were required when FAA sent “Notice to Operators” that guide
pilots were required to abide by FAA regulations applicable to commercial air operations when
FAA had previously and consistently advised guide pilots that they were not governed by
regulations dealing with commercial pilots).
b. CBP Representations and Practice
As part of their argument that CBP’s November 2013 letter represented a significant
change in CBP’s policy regarding foreign crewmen on “cruises to nowhere,” Plaintiffs also
suggest that throughout the business planning process, Plaintiffs “relied on CBP’s approval and
acquiescence in structuring . . . its operations” to include “cruises to nowhere” manned by
foreign crewmembers. Pl.’s Opp’n. at 6. Plaintiffs further state that “it is also common
knowledge in the industry that CBP has for many years permitted non-coastwise vessels to
operate cruises to nowhere with crews consisting of D-1 visa holders.” Lopez Affidavit, ECF
No. [22], at ¶ 10. Essentially, Plaintiffs appear to be arguing that, in light of these assurances
and practices, CBP cannot now enforce a contrary policy without complying with notice and
comment procedures. The Supreme Court has repeatedly rejected such arguments admonishing
for many years that “equitable estoppel will not lie against the Government as it lies against
private litigants.” OPM v. Richmond, 496 U.S. 414, 419 (1990) (citing cases). “[A]lthough the
Court has declined to hold that there are no circumstances in which estoppel may run against the
government, it has made clear that the bar for succeeding on such a claim is high.” Millard
Refrigerated Services, Inc. v. Secretary of Labor, 718 F.3d 892, 897-98 (D.C. Cir. 2013) (citing
Richmond, 496 U.S. at 421-23); see also Richmond, 496 U.S. at 421-22 (noting that the Court's
opinions have “mention[ed] the possibility, in the course of rejecting estoppel arguments, that
23
some type of ‘affirmative misconduct’ might give rise to estoppel against the Government.”).
Plaintiffs cannot reach this high bar because they offer no evidence that they requested prior
permission to use a crew comprised of crewmembers holding D-1 visas—or even mentioned the
status of the crew—and that CBP approved or acquiesced to that crew status. At most, the
correspondence included in the administrative record shows Plaintiffs asked CBP officials about
the agency’s need to inspect the passengers on a “cruise to nowhere,” for which CBP confirmed
there was no need. AR 30-32; Def.’s Stmt. ¶ 8. However, CBP’s confirmation in no way
addresses the vessel’s crew and is not inconsistent with the agency’s position that D-1 crewmen
cannot be employed upon a “cruise to nowhere.” Plaintiffs also submitted with their pleadings
an affidavit from Bimini SuperFast Operations Director of Security Jose Lopez in which he
contends that “[t]here is no question that CBP knew that our crew was foreign because the CBP
regularly conducted (and continues to conduct) inspections of the vessel and its crew where the
crew must disembark and be interviewed prior to returning to the vessel.” Lopez Affidavit, at ¶
14. However, Mr. Lopez’s suggestion that CBP knowingly acquiesced to Plaintiffs’ employing
foreign crewmembers on their “cruises to nowhere” is based on pure speculation and
supposition.
The same is true of Mr. Lopez’s assertion that it is “common knowledge in the industry
that CBP has for many years permitted non-coastwise vessels to operate cruises to nowhere with
crews consisting of D-1 visa holders.” Id. ¶ 10. Neither Mr. Lopez nor Plaintiffs offer any
support for what ultimately remains a bald assertion by Mr. Lopez. In his affidavit, Senior Vice
President of Bimini SuperFast Operations Gregory Karan states that he was general manager of
another cruise vessel that operated “cruises to nowhere” manned by all foreign crew with D-1
visas. Karan Supp. Affidavit, at ¶ 2. However, Mr. Karan’s assertion is also no more than a bald
24
assertion based in part on hearsay and for which he offers no support. Furthermore, Mr. Karan’s
affidavit offers no indication that his previous cruise line’s activities came to the attention of the
CBP. In light of the fact that the Court has before it opinions where the INS did not allow D-1
crewmen to operate “cruises to nowhere” when such operations came to the agency’s attention,
the Court finds Mr. Karan’s assertion unpersuasive in establishing CBP policy or practice.
Moreover, “unless Congress has indicated otherwise,” agencies charged with enforcing the law
retain discretion not to prosecute every violation that comes to their attention. Millard
Refrigerated Services, 718 F.3d at 898 (quoting Heckler v. Chaney, 470 U.S. 821, 838 (1985)).
Accordingly, having presented no evidence that could give rise to estoppel against the
government or otherwise establish a definitive practice by CBP, Plaintiffs have failed to show
that the CBP’s November 2013 letter significantly revised its legal interpretation and thus
required an opportunity for notice and comment.
c. Interpretation of INA
As Plaintiffs’ arguments are unavailing that CBP’s November 2013 determination
represents an abrupt departure from the CBP’s prior interpretations of the coastwise laws or from
CBP’s prior immigration enforcement activities, Plaintiffs’ only remaining argument is that the
November 2013 determination is a significant modification of CBP’s interpretation of the INA.
In its November 2013 determination, CBP notes that it has “consistently taken the position that
applicable [immigration] law allows for the operation of a cruise to nowhere from a United
States port only when the crew consists of USC and/or LPR crewmen.” AR 22. CBP
acknowledges that Plaintiffs’ crewmembers are in compliance to operate as D-1 crewmen on the
daily cruise to Bimini, but not the “cruise to nowhere” which “is a separate, revenue-generating
cruise, with its own manifest of paying passengers.” Id. at 22-23. CBP explains that the
25
crewmen on this “distinct voyage” fail to satisfy the requirements of INA § 101(a)(15)(D)(i)—
which they must satisfy in order to be bona fide D-1 visa holders—because “the crewmen do not
depart the United States and do not land temporarily and solely in pursuit of their calling as
crewmen on this specific excursion.” Id. at 23. The CBP further notes that 8 C.F.R. §
214.2(d)(1) does not permit an alien in D-1 status “to be employed in connection with domestic
flights or movements of a vessel or aircraft.” Id.
To support their argument that this position has consistently been applied, Defendants
point to three INS General Counsel opinions holding that D-1 crewmen cannot operate “cruises
to nowhere” because they do not “depart” from the United States. See AR 1-12 (Mistral II, 1
Imm. & Natural. Serv. & Dep’t of Justice Legal Op. § 89-49 (June 21, 1989); M/V Southern
Elegance, 1 Imm. & Natural. Serv. & Dep’t of Justice Legal Op. § 91-4 (Jan. 11, 1991); M/V
Merchant Victor, Genco Op. No. 94-26, 1994 WL 1753130 (June 6, 1994)). Plaintiffs concede
that these opinions all support the proposition that “foreign crewmembers cannot rely on cruises
to nowhere alone to qualify for D-1 status.”7 Pl.’s Opp’n. at 25. Consequently, the Court fails to
see how the CBP’s November 2013 determination that a distinct “cruise to nowhere” cannot be
operated by crewmen in D-1 status represents a significant “modification” to CBP’s longstanding
position regarding “cruises to nowhere” operated by foreign crewmembers. Plaintiffs further
argue that CBP’s reliance on 8 C.F.R. § 214.2(d)(1)’s prohibition of D-1 status crewmen
operating the “domestic movements” of a vessel is clearly a modification of CBP’s longstanding
position that “cruises to nowhere” are not coastwise trade. But, here again, Plaintiffs confuse
7
Technically, Plaintiffs only concede that the M/V Southern Elegance and Mistral II
opinions support this proposition. However, Plaintiffs acknowledge that the M/V Merchant
Victor opinion held that a vessel was allowed to operate with D-1 crewmen because it sailed to a
foreign port. Plaintiffs only dismiss the opinion because it is based on the “narrow and esoteric
ground that ports in the Virgin Islands may be treated as foreign ports under particularized
circumstances.” See Pl.’s Opp’n. at 23.
26
CBP’s interpretations of coastwise laws with the agency’s interpretation of distinct immigration
laws which have their own distinct purposes. Accordingly, the Court finds that Plaintiffs have
failed to present evidence that CBP has done anything but consistently interpret and apply the
immigration statutes within its authority. The Court holds that CBP did not violate the APA’s
notice and comment rulemaking requirements in issuing its November 2013 determination. See
Alaska Professional Hunters Ass’n, 177 F.3d at 1034 (“When an agency has given its regulation
a definitive interpretation, and later significantly revises that interpretation, the agency has in
effect amended its rule, something it may not accomplish without notice and comment.”
(emphasis added)); Shalala v. Guernsey Memorial Hosp., 115 S.Ct. 1232, 1239 (1995)
(explaining that APA rulemaking is required where an interpretation “adopt[s] a new position
inconsistent with . . . existing regulations.”).
Furthermore, based on the agency record, the Court finds that CBP’s November 2013
determination was not arbitrary, capricious, or contrary to the law. Again, it is important to note
that Plaintiffs do not dispute the CBP’s interpretation of INA 101(a)(15)(D)(i) as not permitting
D-1 visa crewmen to operate “cruises to nowhere” because they do not “depart” the United
States as required by the statute. See Pl.’s Opp’n. at 25. Likewise, Defendants do not dispute
that Plaintiff’s crewmen properly hold D-1 visas for the daily cruise to Bimini because they
actually depart the United States to a foreign port. See Pl.’s Ex. E (November 7, 2013, CPP
letter). Plaintiffs argue, however, that because the crewmen operating the evening “cruises to
nowhere” depart “virtually every single day” for the foreign port of Bimini they are in
compliance with the D-1 visa’s requirement that the crewmen “intend to land temporarily” and
“depart from the United States.” Pl.’s Opp’n. at 25. Essentially, Plaintiffs try to broaden the
interpretation of the statutory term “depart” by attaching the separate “cruise to nowhere”
27
operation onto the daily cruise to Bimini. Plaintiffs, however, offer no legal support for this
analysis of their “cruise to nowhere.” Plaintiffs only argue that unlike the “cruise to nowhere”
crew in M/V Southern Elegance who could not show they intended to remain in the United States
only temporarily because they lived in apartments on shore and only departed to a foreign port
once a month solely for the purpose of complying with the D-1 visa requirements, the crewmen
on Plaintiffs’ vessel live onboard and genuinely intend to engage in foreign commerce by
conducting daily cruises to Bimini. Pl.’s Opp’n. at 26. However, the M/V Southern Elegance
opinion in no way affirmatively states that if crewmembers on a distinct “cruise to nowhere”
voyage also operate a separate, legitimate daily foreign cruise they will be considered to be
properly operating the “cruise to nowhere” on a D-1 visa. Indeed, this interpretation would
appear to be contrary to 8 C.F.R. § 214.2(d)(1), which states that an alien who qualifies for INA
section 101(a)(15)(D)(i) “may be employed only in a crewman capacity on the vessel or aircraft
of arrival, or on a vessel or aircraft of the same transportation company, and may not be
employed in connection with domestic flights or movements of a vessel or aircraft.”
Nevertheless, even if the statute is ambiguous, under Chevron, the Court must defer to the
agency interpretation unless it is “manifestly contrary to the statute.” Chevron, 467 U.S. at 844.
Here, CBP’s view is not “manifestly contrary” to the provision of the statute at issue as the
provision, which focuses on a crewman’s intent to “land temporarily” and “depart,” in no way
precludes an interpretation of the landing and departure as applying to each distinct voyage of
the vessel. Moreover, Plaintiffs’ interpretation would effectively allow alien crewmen to work in
the United States without proper authorization so long as the vessel they operated occasionally
departed on a legitimate foreign cruise, effectively skirting immigration employment laws.
Accordingly, in light of the deference the Court must give the agency’s interpretation, Plaintiffs’
28
failure to point to any legal authority affirmatively supporting their analysis, and U.S. Custom’s
consistent opinions holding that crewmembers are not in compliance with their D-1 visa status
when they operate “cruises to nowhere,” the Court has no difficulty concluding that CBP’s
November 2013 determination was not arbitrary, capricious, or contrary to law.
III. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss or, in the Alternative, for
Summary Judgment is DENIED in that CBP’s November 2013 determination was a final agency
action, but GRANTED on the basis that the November 2013 determination did not violate notice
and comment rulemaking procedures and was not arbitrary, capricious, or contrary to the law.
Accordingly, Plaintiffs’ Motion for a Preliminary Injunction is DENIED AS MOOT. An
appropriate Order accompanies this Memorandum Opinion.
____/s/________________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
29