Yacubian v. United States

United States Court of Appeals
For the First Circuit

No. 13-1947

LAWRENCE M. YACUBIAN,

Plaintiff, Appellant,

v.

UNITED STATES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch, Chief Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.

Jonathan H. Lasken, with whom Paul T. Muniz, Zachary Gates,
Burns & Levinson LLP, and Hunton & Williams LLP, were on brief, for
appellant.
Christine J. Wichers, Assistant United States Attorney, with
whom Anton P. Giedt, Assistant United States Attorney, and Carmen
M. Ortiz, United States Attorney, were on brief, for appellee.

April 30, 2014

*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 LYNCH, Chief Judge. Lawrence M. Yacubian, a former

scallop fisherman, filed suit in July 2012 alleging his prior

prosecution by the National Oceanic and Atmospheric Administration

("NOAA") constituted malicious prosecution and abuse of process

under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),

2671-2680. He did so after official reports stated that there had

been abuses by NOAA.

The 2012 suit arises out of Yacubian's prosecution in

2000 by the enforcement arm of NOAA. The Administrative Law Judge

("ALJ") sustained all charges against Yacubian. On judicial review

of the ALJ's decision in 2004, the district court sustained

findings of liability on two charges of fishing in a prohibited

area, vacated a false statement charge against him, and remanded

for adjustment of penalties. Lobsters, Inc. v. Evans, 346 F. Supp.

2d 340 (D. Mass. 2004). On remand, Yacubian reached a settlement

with the government.

The district court, in this later FTCA case, dismissed

both of Yacubian's claims on two independent grounds, see Yacubian

v. United States, 952 F. Supp. 2d 334 (D. Mass. 2013), and Yacubian

now appeals.

The waiver of immunity under the FTCA for the causes of

action Yacubian has chosen to pursue is itself limited in scope.

As a matter of federal statute and case law, there can be no FTCA

recovery for the actions of the prosecutors who bring such

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enforcement actions but only for the actions of investigative or

law enforcement officers who have committed the wrongful acts

specified. See 28 U.S.C. § 2680(h); cf. Limone v. United States,

579 F.3d 79, 88 (1st Cir. 2009).

We agree with the district court that Yacubian has failed

to state a claim that any law enforcement officer in any way

wrongfully induced a malicious prosecution or acted to abuse

process. We affirm the district court on those limited grounds.

We need not get into thorny limitations period and accrual issues

regarding the timing of Yacubian's claims.

I.

On an appeal from a grant of a motion to dismiss, we

recite the facts as alleged in Yacubian's complaint, Ocasio-

Hernández v. Fortuño-Burset, 640 F.3d 1, 4 (1st Cir. 2011), and as

not contradicted by the official documents attached to his

complaint, Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 229 n.1

(1st Cir. 2013). Yacubian appended to his complaint other

documents, including the Offense Investigation Report from when

NOAA officials first boarded his vessel and the 2011 Special Master

Report concerning NOAA enforcement actions. He also references the

record in the prior proceedings in this case. We consider all of

these documents as well. See Trans-Spec Truck Serv., Inc. v.

Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008) ("Exhibits

attached to the complaint are properly considered part of the

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pleading 'for all purposes,' including Rule 12(b)(6)." (quoting

Fed. R. Civ. P. 10(c))).

A. Background and Initial NOAA Proceedings

Lawrence M. Yacubian took his fishing vessel F/V

Independence on a scalloping trip on December 4, 1998. Coast Guard

Officers Timothy Brown and Chris Mooradian, aboard the USCGC

Wrangell at the time, observed via radar that the Independence had

entered a "Closed Area" where fishing was prohibited. After

concluding, based on its "courses and speeds," as tracked on

Boatracs, a satellite-based monitoring system, that the

Independence appeared to be "engaged in fishing inside the closed

area," Officer Brown led a boarding of the vessel.

During the boarding, Officer Brown informed Yacubian that

the team was "onboard to ensure that he and the vessel were in

compliance with all applicable federal laws and regulations."

Brown did not tell Yacubian at the time that the Independence had

been plotted inside of the Closed Area.

Officer Brown spoke with Yacubian about his navigational

practices and his vessel's equipment, which included a Boatracs

unit, as required by applicable fisheries regulations. Lobsters,

Inc., 346 F. Supp. 2d at 341-42. Officer Brown asked Yacubian if

he had been having trouble with the Boatracs equipment on board,

and Yacubian responded that he was not aware of any problems. The

two "visually confirmed" that the status of the Boatracs system was

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"good." Officer Brown's report of the boarding noted that Yacubian

and his crew were "as cooperative as could be expected" throughout.

Officer Brown also asked Yacubian how many scallops he

had on board, both on deck and in the ship's hold. After making

clear that he had no way of knowing the exact amount, Yacubian

provided an estimate. Officer Brown also made an estimate, and it

was higher than Yacubian's. Officer Brown's write-up of the

boarding noted the discrepancies between his estimate and

Yacubian's but did not indicate that he suspected Yacubian of

intentionally making a false statement as to these estimates.

On June 14, 2000, NOAA Enforcement Attorney (EA) Charles

Juliand issued Yacubian a Notice of Violation and Assessment (NOVA)

and a Notice of Permit Sanctions (NOPS). The NOVA included two

counts for fishing in a restricted area (the "prohibited fishing"

counts) and one count of making a false statement to an officer

about the estimated number of scallops on board. The NOPS, which

was issued with the NOVA, revoked Yacubian's vessel and operating

permits but did not take effect until all agency action on the

matter became final. See 15 C.F.R. § 904.273(c) ("If a party files

a timely petition for discretionary [agency] review, . . . the

effectiveness of the initial decision is stayed . . . until the

initial decision becomes final . . . ."). Yacubian has pled in his

complaint that negotiation of a settlement is typical in this type

of case, but that in this instance, "EA Juliand was

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uncharacteristically unwilling to negotiate a settlement."

Yacubian admittedly had prior violations on his record.

Yacubian had an evidentiary hearing before an ALJ, Edwin

M. Bladen, on the NOVA/NOPS from about June 19 through June 22,

2001. The government was represented by EA Juliand and EA Mitch

MacDonald.

The government introduced data from the Boatracs system

to support the two prohibited fishing charges. Indeed, Yacubian's

case was the first one in which Boatracs data was used as the

entire basis for such a charge. His defense was to challenge the

reliability of the Boatracs system. To this end, Yacubian's

attorney contacted a Massachusetts Environmental Police (MEP)

officer, Lieutenant Peter Hanlon, to obtain evidence as to the

inaccuracy of Boatracs, and then to testify voluntarily on

Yacubian's behalf.

At some point well before the ALJ hearing, Lt. Hanlon was

informed that his superiors were displeased with his decision to

testify for Yacubian's defense. The complaint alleges his

superiors applied pressure to Lt. Hanlon not to testify. This

caused him to ask to be excused from testifying. He did not orally

testify.

Special Agent in Charge at NOAA (SAC) Andy Cohen was one

of several enforcement officers who was "involved in the

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investigation and prosecution" of Yacubian.1 The complaint alleges

that it was SAC Cohen whose actions caused Lt. Hanlon's superiors

to put pressure on Lt. Hanlon to ask to be excused from testifying.

Specifically, Yacubian alleges, again on information and belief,

that SAC Cohen called Lt. Hanlon's superiors at the MEP to express

displeasure at Lt. Hanlon's initial decision to testify on

Yacubian's behalf.2

We describe below the Special Master's report, appended

to the Complaint, as to the incident with SAC Cohen. According to

that report, Lt. Hanlon did provide a written report to Yacubian's

counsel in support of Yacubian's position, and that report was

1
In addition to Enforcement Attorneys Juliand and MacDonald,
Officers Brown and Mooradian, and Special Agent in Charge Cohen,
Yacubian states that Special Agent Louis Jachimcyzk of NOAA
Fisheries Office for Law Enforcement was also "involved in the
investigation and prosecution." Special Agent Jachimcyzk is only
mentioned again in the complaint to note his comments in a NOAA
press release about Yacubian's case: he said that satellite-based
Boatracs information "had never been used, on its own, to prove a
closed-area case." Yacubian makes no allegations that SA
Jachimcyzk engaged in wrongdoing, or that Mooradian or Brown did.
2
Yacubian supports this allegation with a reference to the
hearing testimony. At the June 19 ALJ hearing, Yacubian's counsel
stated:
I was advised by Lieutenant Hanlon that he had been --
how shall I say this? I want to be very cautious of the
way that I say this. His commander, Captain O'Donnell,
called him and advised him that she had received phone
calls from [National Marine Fisheries Service]
enforcement and that it was pursuant to his employment he
now -- now a subpoena was necessary.
Up until that point, I had no idea -- I was
understanding that he was going to come voluntarily. He
then advised me that he had been called, that he was
instructed that a subpoena had to issue.

-7-
submitted by the defense as part of the official record before the

ALJ. Yacubian maintains that he was harmed because the ALJ never

heard Lt. Hanlon's oral testimony.

On December 5, 2001, ALJ Bladen issued an Initial

Decision that sustained the NOVA/NOPS on both counts and imposed

fines and sanctions as proposed by NOAA. The fines totaled

$250,000, including a $110,000 civil penalty for each of the two

prohibited fishing counts and a $30,000 civil penalty for the false

statement charge. Yacubian sought discretionary review within

NOAA, which was denied on July 2, 2003. According to Yacubian,

this denial constituted a final agency action and triggered the

revocation of Yacubian's permits at that time. Lobsters, Inc., 346

F. Supp. 2d at 342-43; see 15 C.F.R. § 904.273(c).

B. 2003 Appeal to the District Court and Post-Remand ALJ
Proceeding

On August 1, 2003, Yacubian filed suit in federal

district court under the Administrative Procedure Act, 5 U.S.C.

§ 702, challenging the ALJ's decision on the NOVA/NOPS. He did not

ask to stay the revocation of his permit pending judicial review.

While that case was pending, Yacubian tried to sell the

Independence to finance his ongoing legal expenses; however, the

complaint in this case alleges that on three separate occasions, EA

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Juliand blocked the sale of the vessel by refusing to agree to

allow Yacubian to sell his vessel permit along with the boat.3

The parties filed cross-motions for summary judgment in

the district court based on the administrative record. On November

29, 2004, the district court (Gorton, J.) (1) sustained the finding

of liability as to the two prohibited fishing counts; (2) vacated

the finding of liability as to the false statement (about scallops

caught) charge,4 ruling that as a matter of law no false statement

could be based on the expression of Yacubian's estimation of how

many scallops were on board; (3) vacated the civil penalties and

permit sanctions assessed against Yacubian because the penalties

were calculated incorrectly and were too high in light of the

court's rulings;5 and (4) remanded the case to NOAA "for de novo

3
EA Juliand later explained to the Special Master
investigating this series of events that he blocked the sales
attempts because one of the proposed buyers of the vessel was a
former employee of Yacubian's, and because EA Juliand feared that
Yacubian would simply become a silent partner in the ongoing
fishing venture. He also stated that he denied these sales offers
because he believed that Yacubian did not have a "rightful claim"
to sell the Independence along with its permits. When Yacubian
eventually entered a settlement agreement with NOAA, EA Juliand
allowed the sale of the boat to a buyer whom he had blocked from
purchasing the boat earlier.
4
The false statement charge was not based on statements
about the two prohibited fishing counts.
5
Adjustments were required because the false statement count
was reversed and because the court excluded certain past violations
from Yacubian's violation history in light of the agency's five-
year look back policy and ruled that the agency abused its
discretion in failing to provide any reasoned explanation for its
departure from its established policy. Lobsters, Inc., 346 F.

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reconsideration of civil penalties and permit sanctions."

Lobsters, Inc., 346 F. Supp. 2d at 349 (emphasis added). The court

further ordered that "NOAA is directed to assess an appropriate

penalty . . . based on [the] violations of Count I and II and, when

considering [Yacubian's] history of prior offenses, should

recognize only two prior offenses . . . or, in the alternative,

should explain its departure from the Agency's five year 'look

back' policy." Id.

On remand, on or around May 5, 2005, the agency filed a

motion for an expedited hearing to reconsider the penalties and

permit sanctions.6 Yacubian opposed the motion, arguing that Judge

Gorton's order mandated an entirely new agency proceeding. On June

15, 2005, a new ALJ granted NOAA's motion for an expedited hearing,

reasoning that "the original NOVA and NOPS dated June 14, 2000

satisfied the due process requirements embodied in the

[Administrative Procedure Act]. On remand, the original NOVA and

NOPS still govern unless agency counsel seeks an amendment." The

new ALJ made clear that only the penalties as to the prohibited

Supp. 2d at 347-48.
6
Before the motion for an expedited hearing was filed with
the agency, Yacubian filed a Motion for Order in Aid on Enforcement
of the Judgment in the district court, and the government opposed
it. The focus of these opposing motions was the a dispute over
whether the agency was required to reinstate Yacubian's fishing
permits while his case was pending before the agency on remand.
The underlying liability for the prohibited fishing charges was not
contested, nor was the fact that the false statement charge had
been vacated entirely.

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fishing counts were at issue because the false statement charge had

been vacated entirely.7

Around June 24, 2005, before any further proceedings,

Yacubian signed a settlement agreement with NOAA. Under the

agreement, which Yacubian asserts was coercive and excessive, he

agreed to (1) pay a $430,000 civil penalty; (2) forfeit $25,972 in

profits from fish seized from the Independence in December 1998;

and (3) permanently forfeit his commercial fishing permits and

privileges. The agreement also made explicit that the transfer to

Amber Nicole, Inc. was contingent upon Yacubian signing the

settlement agreement. The civil penalties imposed by the

settlement were substantially higher than the initial $250,000 fine

imposed by the NOVA. Yacubian maintains that EA Juliand's

continued efforts to block his sale of the Independence ultimately

coerced him into assenting to this settlement.

C. The 2010 OIG Reports, 2011 Special Master Report, and
2013 Secretary's Memorandum

In 2010, the Office of the Inspector General (OIG)

completed an investigation of alleged improprieties in NOAA's

fisheries enforcement programs and issued several reports on its

findings. The OIG audited NOAA's Asset Forfeiture Fund (AFF), the

fund into which Yacubian's fines were paid. The OIG's audit

7
Yacubian pled that the ALJ "reinstated the false statement
charge vacated by Judge Gorton." The ALJ's opinion belies this
assertion and we do not credit it.

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report, released on July 1, 2010, found mismanagement in the

expenditure and use of AFF funds. OIG concluded that the AFF was

improperly used to finance the purchase of various luxury vessels

and trips around the world that were generally unrelated to NOAA

enforcement proceedings.

The OIG final report, issued on September 23, 2010, found

that NOAA assessed excessive fines in order to force settlements in

several cases. Yacubian's case and the matter of Lt. Hanlon being

pressured not to testify were two of many that were identified for

further review by a Special Master.

The Special Master issued his report in April 2011.

Yacubian appended a portion of the report to his complaint in this

case. In the report on Lt. Hanlon's case, the Special Master found

that SAC Cohen had talked to Lt. Hanlon's superiors, and after the

superiors learned Lt. Hanlon had been subpoenaed to testify, they

told him that he could not go to court while he was on state duty,

nor could he use his cruiser to get there.8 The report found that

Lt. Hanlon asked Yacubian's counsel to excuse him from appearing in

court as a result of pressure from his superiors and others.

Ultimately, the report concluded that Lt. Hanlon "was not

prevented from testifying by SAC Cohen," but SAC Cohen's actions

8
The report also found that in the months before the ALJ
hearing, SAC Cohen asked another Special Agent how to "initiate
paperwork" to remove Lt. Hanlon from the agency's list of deputized
state officers.

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were "sufficient to put enough pressure" on Lt. Hanlon to "request

that he be excused from testifying." The report labeled SAC

Cohen's conduct as "inappropriate."

As to the prosecution against Yacubian, the Master found

that "money was NOAA's motivating objective in this case," and that

"EA Juliand had no right to extract an oppressive penalty for the

sale of the permits because EA Juliand and others at NOAA

completely ignored the plain meaning of Judge Gorton's decision."

The Master found that the assessed penalties were excessive, and

that NOAA had improperly coerced the settlement. The Special

Master recommended that Yacubian be reimbursed $330,000.

On May 17, 2011, Gary Locke, then Secretary of Commerce,

issued a "Secretarial Decision Memorandum" which followed up on the

Special Master Report. Secretary Locke categorized his view of the

various NOAA actions as follows:

In light of this systemic failing [described
in the Master's Report], I find after legal
review that none of the conduct described in
the report undertaken by any individual NOAA
lawyer or law enforcement officer warrants
disciplinary action against any employee
mentioned in [the Special Master's] report.
At bottom, these problems were not the product
of individual bad acts, but rather the result
of conduct enabled and even encouraged by the
management and enforcement culture in place at
the time.

As to Yacubian's case specifically, Secretary Locke directed NOAA

to remit $400,000 to Yacubian. The affirmance of Yacubian's

liability for the two prohibited fishing counts was not mentioned

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in the Secretary's Memorandum or in the Master's Report, nor was

the permanent forfeiture of Yacubian's operating permits as part of

the settlement agreement.

D. This Case

On January 19, 2012, Yacubian, relying on the Special

Master's Report, filed FTCA administrative claims with the

Department of Commerce and the Coast Guard. After the Coast Guard

denied his claim,9 Yacubian filed a complaint in the district court

on July 30, 2012. He alleged that NOAA engaged in abuse of process

and malicious prosecution in initiating the 2000 NOVA/NOPS and in

negotiating the 2005 settlement agreement.

On October 11, 2012, the United States filed a motion to

dismiss the case for lack of subject matter jurisdiction and for

failure to state a claim. On July 8, 2013, the district court

(Tauro, J.) granted the motion on two independent grounds. It held

that Yacubian's claims accrued, at the very latest, by June 27,

2005, when he signed the settlement agreement, and that his FTCA

claims were time-barred as a result. Yacubian, 952 F. Supp. 2d at

339-40. The district court also made an alternative and

independent holding, dismissing both the malicious prosecution and

abuse of process counts pursuant to Federal Rule of Civil Procedure

9
The Department of Commerce had indicated that it intended
to deny his FTCA claim but had not yet officially done so. Because
the six-month period for administrative consideration of the claim
lapsed on July 19, 2012, Yacubian's claim was deemed denied under
28 U.S.C. § 2675(a) as of that date.

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12(b)(6). Id. at 340-42. It relied on the intentional torts

exception to the FTCA, under which the United States is immune from

prosecution for malicious prosecution and abuse of process claims

unless these torts are committed by an "investigative or law

enforcement officer." 28 U.S.C. § 2680(h). The district court

found that the NOAA Enforcement Attorneys, who brought and pursued

the prosecution and obtained the settlement, were not

"investigative or law enforcement officers" within the meaning of

the statute, and that Yacubian's complaint failed to state a claim

for malicious prosecution or abuse of process as to SAC Cohen, who

is a law enforcement officer. Yacubian, 952 F. Supp. 2d at 341-42.

This appeal followed. We deal only with the second holding.

II.

We review a district court's dismissal under Rule

12(b)(6) de novo, construing the facts of the complaint in the

light most favorable to the plaintiff. Ocasio-Hernández v.

Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2011). We indulge in all

reasonable inferences in Yacubian's favor. McCloskey v. Mueller,

446 F.3d 262, 266 (1st Cir. 2006). However, "[i]t is a well-

settled rule that when a written instrument contradicts allegations

in the complaint to which it is attached, the exhibit trumps the

allegations." Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 229

n.1 (1st Cir. 2013) (quoting Clorox Co. P.R. v. Proctor & Gamble

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Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000)) (internal

quotation marks omitted).

To survive a motion to dismiss, Yacubian's complaint

"must state a plausible, not a merely conceivable, case for

relief." Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d

25, 29 (1st Cir. 2010). This threshold requires that the factual

allegations support the "reasonable inference that the defendant is

liable for the misconduct alleged." Haley v. City of Boston, 657

F.3d 39, 46 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)) (internal quotation mark omitted).

The FTCA gives jurisdiction over tort claims only "if a

private person[] would be liable to the claimant in accordance with

the law of the place where the act or omission occurred." 28

U.S.C. § 1346(b)(1). The FTCA is a limited waiver of the federal

government's sovereign immunity, McCloskey, 446 F.3d at 266, and,

as with all such waivers, it must be "construed strictly in favor

of the federal government." Bolduc v. United States, 402 F.3d 50,

56 (1st Cir. 2005) (quoting United States v. Horn, 29 F.3d 754, 762

(1st Cir. 1994)) (internal quotation marks omitted).

The FTCA permits suits against the government for torts

"caused by the . . . wrongful act[s] . . . of any employee of the

Government while acting within the scope of his office or

employment." 28 U.S.C. § 1346(b)(1). This waiver is limited

further for the torts of malicious prosecution and abuse of

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process. As to these two torts, suits are permitted to proceed

only with respect to actions by "investigative or law enforcement

officers." Id. § 2680(h). It is undisputed here that the actions

of federal prosecutors are outside the ambit of § 2680(h) and are

accordingly immune from this type of suit under the FTCA. See,

e.g., Limone v. United States, 579 F.3d 79, 88-89 (1st Cir. 2009);

Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994) ("[T]he

FTCA does not authorize suits for intentional torts based upon the

actions of Government prosecutors . . . .").

Yacubian does not dispute the government's assertion that

the actions of Enforcement Attorneys Juliand and MacDonald, who

brought the charges and were the prosecutors in the ALJ

proceedings, are, like those of other federal prosecutors, immune

in this context. That leaves only whether the complaint and

appended documents plausibly allege that SAC Cohen himself

wrongfully engaged in malicious prosecution or abuse of process.

We agree with the district court that they do not.10

To discern the elements of a claim under the FTCA, we

look to the law of the place where the alleged wrongful act

10
On appeal, Yacubian does not mount a serious argument that
he should be allowed to amend his complaint if we affirm the
district court on a Rule 12(b)(6) theory and so we do not consider
that option. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived.").

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occurred. See González-Rucci v. U.S. I.N.S., 539 F.3d 66, 69 (1st

Cir. 2008).

A. Malicious Prosecution

Under Massachusetts law, there are three elements of a

malicious prosecution claim. A plaintiff must establish that he

was damaged because (1) the defendant commenced an original action

without probable cause, (2) with malice, and (3) that the original

action terminated in his favor. Chervin v. Travelers Ins. Co., 858

N.E.2d 746, 753 (Mass. 2006).

The two prohibited fishing charges cannot possibly form

the basis of Yacubian's malicious prosecution claim because the

findings of liability mean that those aspects of the proceedings

did not terminate in his favor. The underlying liability as to

those counts was affirmed. Lobsters, Inc., 346 F. Supp. 2d at 349.

This leaves only a claim for malicious prosecution based

on the initiation of the false statement charge.11 We address

whether the allegations against SAC Cohen plausibly state a claim

as to that matter.

As to the first element, there is no allegation at all

that SAC Cohen in any way initiated the prosecution of any charge,

11
We do not need to reach the argument by the United States
that there was no termination of any part of the enforcement
proceedings which was in Yacubian's favor. The government says the
claims were settled, and that the Secretarial Decision Memorandum
did not terminate or invalidate the 2000 NOVA/NOPS or vacate the
operative terms of the Settlement Agreement, including the
relinquishment of permits and forfeiture of profits.

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much less the false statement charge. The only specific allegation

of SAC Cohen's involvement related to activities after the charges

were brought.12 In particular, the only wrongdoing alleged is SAC

Cohen inducing Lt. Hanlon's superiors into pressuring Lt. Hanlon

not to testify as to the prohibited fishing charges.13 But Lt.

Hanlon had no knowledge relevant to the false statement charge and

was not a witness as to that charge. As the district court noted,

the Complaint does not allege "that any of the investigative or law

enforcement officers named in the Complaint induced or caused EA

Juliand to issue the 2000 NOVA/NOPS. Nor does plaintiff allege that

any of the officers exercised control or influence over EA

Juliand's decisions in prosecuting the case." Yacubian, 952 F.

12
Yacubian's "continuation of a prosecution" theory fails for
a number of reasons, including that there plainly was at least
probable cause for the prohibited fishing charges and because
merely taking steps to strengthen a case does not make agents
"continuers" of a prosecution. Limone, 579 F.3d at 91.
13
Even accepting the proposition that SAC Cohen acted
improperly in this regard, that does not aid Yacubian's case.
Limone, 579 F.3d at 90 (even where record leaves no doubt federal
agents acted deplorably, that does not mean they can be said to
have instituted wrongful prosecution).
To the extent Yacubian suggests an inference can be drawn that
this action after the charges were brought suggests that SAC Cohen
somehow maliciously induced the initial prosecution or service of
the complaint, the inference is neither reasonable nor plausible.
See Bernard, 25 F.3d at 104 (holding that actions by agent after
prosecution is brought cannot support claim of malicious
prosecution in bringing the charges).
To the extent Yacubian suggests SAC Cohen applied pressure by
protesting Lt. Hanlon's testimony absent a subpoena, such a protest
would be unremarkable. There is nothing inherently illegitimate or
malicious in the federal government's request for a subpoena to
minimize the likelihood of giving a false impression.

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Supp. 2d at 342 (footnote omitted). Without such allegations, the

complaint cannot state a claim for malicious prosecution.

The complaint must permit the "reasonable inference" that

SAC Cohen in some sense caused the bringing of the NOAA false

statement charges, and it requires "more than a sheer possibility"

that he acted unlawfully. Iqbal, 556 U.S. at 678. The bare

allegation that SAC Cohen was "involved" in the investigation of

Yacubian's case simply does not permit any plausible inference that

he, and not the Enforcement Attorneys, was responsible in any way

for the institution or maintenance of the prosecution.14 See

Limone, 579 F.3d at 89. He was obviously not present at the time

the false statements were made. Indeed there is no assertion that

SAC Cohen had any knowledge pertinent to the false statement

charge. That dooms Yacubian's malicious prosecution claim.

14
The Special Master's report on two other matters, unrelated
to Yacubian's case, noted that SAC Cohen was involved in and caused
process (in those cases, an Administrative Inspection Warrant) to
issue. The Master made no express conclusions as to SAC Cohen's
actions in those other cases. Yacubian urges us to infer from
these other two cases that SAC Cohen "supplied and further
influenced the prosecution with respect to all of the charges" in
this case. That is not a plausible inference. The special Master
made no such findings as to SAC Cohen in Yacubian's case. First,
the Special Master did not make any conclusions that SAC Cohen
acted improperly in those other two cases. Second, there are no
allegations in the complaint to support the link Yacubian suggests,
and SAC Cohen's actions in two unrelated cases are not germane to
the events here.

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B. Abuse of Process

Under Massachusetts law, an abuse of process claim

requires a plaintiff to show that "process" was used for an

ulterior or illegitimate purpose and resulted in damages. Vittands

v. Sudduth, 730 N.E.2d 325, 332 (Mass. App. Ct. 2000). We begin

and end here with the first requirement: the use of "process."

That term "means causing papers to be issued by a court to bring a

party or property within its jurisdiction." Id. at 332 n.9

(quoting Silvia v. Bldg. Inspector of W. Bridgewater, 621 N.E.2d

686, 687 n.4 (Mass. App. Ct. 1993)) (internal quotation mark

omitted). One can "use process" under Massachusetts law by

providing information that causes process to be used improperly.

See Gutierrez v. Mass. Bay Transp. Auth., 772 N.E.2d 552, 563-64

(Mass. 2002) (holding that where plaintiffs presented evidence that

officers falsified arrest reports which provided the basis for

criminal complaints, a jury could conclude those officers "caused

papers to issue" by a court). The parties agree that the only

"process" at issue in this case is the original NOVA/NOPS.

As we have said, Yacubian does not plausibly allege that

SAC Cohen had any involvement in EA Juliand's initial decision to

file the NOVA/NOPS and serve it on Yacubian. Under Iqbal, that is

insufficient.

Yacubian, on appeal, urges us to infer from his complaint

that SAC Cohen "used process" in "supplying the basis for the

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Enforcement Attorneys to secure the NOVA/NOPS with an ulterior

purpose." His complaint does not so plead, and we have no need to

discuss this further.

III.

The judgment of the district court is affirmed.

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