Hornof v. United States

107 F.4th 46

• Court: Court of Appeals for the First Circuit
• Decided: July 15, 2024
• Docket: 23-1761
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1761

JAROSLAV HORNOF, a resident and citizen of the Czech Republic; DAMIR KORDIC, a resident and citizen of Croatia; LUKAS ZAK, a resident and citizen of the Slovak Republic,

Plaintiffs, Appellants,

v.

UNITED STATES; UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES COAST GUARD; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; SHANE N. WALLER, a former employee of the United States Department of Justice; JOHN D. CASHMAN, an employee of the United States Department of Justice; RICHARD UDEL, an employee of the United States Department of Justice; MICHAEL A. FAZIO, Commander, First Coast Guard District of the United States Coast Guard; MICHAEL BAROODY, Captain and Commanding Officer, United States Coast Guard, Sector Northern New England; JON D. LAVALLEE, Lieutenant, First Coast Guard District Legal Office; MARK ROOT, Special Agent, United States Coast Guard Investigative Service; CHRISTY DOYLE, a citizen of Maine employed by the United States Customs and Border Protection; SHANNON TRUE, a citizen of Maine employed by the United States Customs and Border Protection,

Defendants, Appellees,

KEITH FLEMING, Port Director, Custom and Border Protection, South Portland, Maine,

Defendant.

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

[Hon. Jon D. Levy, U.S. District Judge] Before

Kayatta, Howard, and Gelpí, Circuit Judges.

Edward S. MacColl, with whom Marshall J. Tinkle, and Thompson, Bull, Bass & MacColl, LLC, P.A., were on brief, for appellants.

Anne Murphy, Attorney, Appellate Staff, Civil Division, United States Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Darcie N. McElwee, United States Attorney, and Charles W. Scarborough, Attorney, Appellate Staff, were on brief, for appellees.

July 15, 2024 GELPÍ, Circuit Judge. Jaroslav Hornof ("Hornof"), Damir

Kordic ("Kordic"), and Lukas Zak ("Zak") (collectively,

"Plaintiffs") were crewmembers aboard the MARGUERITA, a vessel

that was allegedly unlawfully disposing of bilge water and

improperly keeping records. The MARGUERITA was held in-port in

Maine, and Plaintiffs were ordered to remain in the United States

as potential material witnesses to the wrongdoing. Plaintiffs

were later permitted to leave the United States, returned for

trial, and were awarded for their contributions to conviction. As

a result of their detention and parole order to remain in the

United States, Plaintiffs filed suit under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

and the Federal Tort Claims Act ("FTCA"), against the United

States, the United States Department of Justice ("DOJ"), the United

States Coast Guard ("Coast Guard"), the United States Department

of Homeland Security ("DHS"), and nine Government Officials in

their individual capacities (collectively, "Government" or

"Defendants").1 The district court dismissed the Bivens claim and

Plaintiffs' Bivens claim was for alleged violations of their 1

Fourth, Fifth, Sixth, and Thirteenth Amendment rights. The FTCA claims included false imprisonment, false arrest, abuse of process, and intentional infliction of emotional distress. In addition, but not at issue on appeal, Plaintiffs brought claims against the individual Defendants under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and claims against the Defendants collectively under the Act to Prevent Pollution from Ships, Pub. L. 96-478, 94 Stat. 2297 (1980) (codified as amended at 33 U.S.C. §§ 1901-1915) ("APPS") for compensation for

- 3 - entered summary judgment for Defendants on the FTCA claims.

Plaintiffs timely appealed, arguing that the district court erred

in the dismissal and entry of summary judgment. We disagree and

affirm.

I. Background

A. Statutory Background

The United States is a party to the 1973 International

Convention for the Prevention of Pollution from Ships and the

Protocol of 1978, which combined are referred to as MARPOL, short

for marine pollution. United States v. Vastardis, 19 F.4th 573,

577 (3d Cir. 2021); United States v. MST Mineralien Schiffarht

Spedition Und Transport GmbH, No. 2:17-cr-117, 2018 WL 522764, at

*2 (D. Me. Jan. 22, 2018); International Convention for the

Prevention of Pollution from Ships, Nov. 2, 1973, 1340 U.N.T.S.

184; Protocol of 1978, Feb. 17, 1978, 1340 U.N.T.S. 61. The

objective of MARPOL is to "achieve the complete elimination of

international pollution of the marine environment by oil and other

harmful substances." Protocol of 1978, supra, 1340 U.N.T.S. at

128. The United States enforces MARPOL through federal statute,

APPS, criminalizing violations of MARPOL. MST, 2018 WL 522764, at

*2; Vastardis, 19 F.4th at 577. Whistleblowers are incentivized

unreasonable detainment, declaratory and injunctive relief, and claims under the federal criminal statutes against peonage, involuntary servitude, and human trafficking.

- 4 - to report APPS and MARPOL violations because 33 U.S.C. § 1908(a)

specifically states that, "[i]n the discretion of the [c]ourt, an

amount equal to not more than 1/2 of such fine may be paid to the

person giving information leading to conviction." In addition,

APPS authorizes the Coast Guard2 to "prescribe any necessary or

desired regulations to carry out the provisions of . . . MARPOL."

33 U.S.C. § 1903(c)(1); see also 33 C.F.R. § 151.01.

One federal regulation at issue is 33 C.F.R. § 151.25,

the "Oil Record Book" regulation. The regulation states that a

"ship of 400 gross tons and above . . . shall maintain an Oil

Record Book" kept "readily available for inspection at all

reasonable times." 33 C.F.R. § 151.25(a), (i). Entries must be

made in the Oil Record Book whenever there is "[d]ischarge

overboard or disposal otherwise of bilge water that has accumulated

in machinery spaces." 33 C.F.R. § 151.25(d)(4). The entries must

be "fully recorded without delay" and "signed by the person or

persons in charge of the operations" and "the master or other

person having charge of the ship." 33 C.F.R. § 151.25(h). APPS

only applies to foreign-flagged ships "in the navigable waters of

the United States, or while at a port or terminal under the

jurisdiction of the United States." 33 C.F.R. § 151.09(a)(5); see

Section 1903(c)(1) gives "[t]he Secretary" the authority to 2

carry out the provisions of MARPOL. 33 U.S.C. § 1903(c)(1). "The Secretary" is defined as "the Secretary of the department in which the Coast Guard is operating." 33 U.S.C. § 1901(a)(11).

- 5 - also 33 U.S.C. § 1902(a)(2). Flag states, meaning the country or

countries where the ships are registered, are responsible for

enforcement of MARPOL violations that occur in international

waters. United States v. Ionia Mgmt. S.A., 555 F.3d 303, 308 (2d

Cir. 2009) (discussing law of the flag doctrine).

Furthermore, 8 C.F.R. § 252.1, titled "Examination of

crewmen," requires detention of "[a]ll persons employed in any

capacity on board any vessel or aircraft arriving in the United

States . . . by the master or agent of such vessel or aircraft

until admitted or otherwise permitted to land by an officer of the

Service." 8 C.F.R. § 252.1(a). Federal regulation 8 C.F.R.

§ 212.5, titled "Parole of aliens into the United States," outlines

when and how noncitizens can be paroled. 8 C.F.R. § 212.5(a),

(c)-(d).

B. Facts

The following facts are undisputed unless noted

otherwise. In 2017, Plaintiffs were working aboard the MARGUERITA,

registered in the Republic of Liberia, the crew of which were not

United States citizens nor residents.3 The MARGUERITA was owned

by Reederei MS "Marguerita" GmbH & Co., and operated by MST

Mineralien Schiffahrt Spedition und Transport, GmbH (collectively

3 Hornof is a citizen of the Czech Republic, Kordic is a citizen of Croatia, and Zak is a citizen of the Slovak Republic.

- 6 - "MST").4 Hornof noticed that the MARGUERITA's pollution-control

system had been altered, allowing unfiltered, dirty bilge water to

flow directly into the ocean. He realized that the Chief Engineer

of the MARGUERITA was making false entries into the Oil Record

Book. Hornof documented his discovery through pictures, videos,

and notes, confronting the Chief Engineer about the activity. The

Chief Engineer ignored Hornof's concerns, and when Hornof reported

the issue to the MARGUERITA's Captain, the Captain told Hornof

that the Chief Engineer reported that everything was being

conducted and documented correctly. Hornof then reported his

concerns to an MST superintendent.

MST was already on probation in the United States for

committing environmental crimes and was required to report any

wrongdoing on its vessels. MST informed United States officials

of the alleged wrongdoing and reported that the MARGUERITA would

be audited by a third party when it arrived in Brazil. The audit

confirmed Hornof's account. MST informed the Coast Guard of the

allegations and audit as a "Voluntary Disclosure," providing that

the situation was "fully, accurately and contemporaneously

memorialize[d]" in the vessel's Oil Record Book.

4 "MST" refers to both the owner and operator of the MARGUERITA as the two entities' relationship to one another is irrelevant to the appeal.

- 7 - The MARGUERITA arrived in Portland, Maine on July 7,

2017, where United States Customs and Border Protection ("CBP")

officials boarded the vessel and granted Plaintiffs temporary

landing privileges.5 The Coast Guard also boarded the MARGUERITA

to conduct a Port State Control Inspection and found that one or

more Oil Record Book entries were inaccurate or missing, thereby

concluding that a detailed and thorough "MARPOL examination" was

needed. Later that day, additional Coast Guard members boarded

the vessel and began the MARPOL examination which included speaking

with the crewmembers about the bilge water concerns.6 While

speaking with Coast Guard officials, "Hornof recounted his

discovery of the bilge water discharge system, played the video he

had taken of the pumps and hoses used in the discharge operation,

and showed officials the equipment used to bypass the

[pollution-control system]."

5 Hornof and Kordic were awarded D-1 conditional landing permits issued under 8 U.S.C. § 1282(a)(1), permitting them to go onshore temporarily while waiting for their vessel to depart, and Zak was awarded a D-2 conditional landing permit also issued under 8 U.S.C. § 1282(a)(2), permitting him to land temporarily in the United States and depart on his flight back home as his contract with MST had expired. 6 The parties dispute the number of Coast Guard officials who

boarded the MARGUERITA and the manner in which the officials interacted with the crewmembers. However, the number of officials is irrelevant to the issues on appeal. As to the interactions, while Plaintiffs claim that they were "interrogated," the Government claims that the officials conducted "interviews." Viewing the record in the light most favorable to Plaintiffs and drawing reasonable inferences in their favor, we accept their account of the interactions.

- 8 - After the MARPOL examination, the Coast Guard requested

that the MARGUERITA and its crew be placed on customs hold pursuant

to 33 U.S.C. § 1908(e), as the Coast Guard had determined it had

probable cause to believe that unlawful violations occurred,

identifying material witnesses. On July 8, 2017, the vessel's

departure clearance was denied and Plaintiffs' conditional landing

permits were revoked and replaced with new Form I-95s denying their

permission to land temporarily. CBP gave the MARGUERITA's shipping

agent a Form I-259 ("Notice to Detain, Remove, or Present Alien"),

requiring detention of the crew aboard the vessel, and the

witnesses identified were designated as "mala fide."

Plaintiffs remained on board the MARGUERITA from July 8

to July 16, 2017. On July 12, Government officials and MST

received the auditor's report and referred the matter to the DOJ

for criminal prosecution. The Coast Guard's investigation

concluded on July 15. On July 14, the Coast Guard and MST

negotiated an Agreement on Security ("Agreement") pursuant to 33

U.S.C. § 1908(e) requiring MST to request the crewmembers who were

identified as potential witnesses to surrender their passports,

disembark, and remain in Maine during the investigation. MST was

required to notify the Government if a passport was requested and

wait up to 72 hours before complying with the request. Plaintiffs

were not parties, and did not consent, to the Agreement. On the

same day as the Agreement, Zak filed a petition for habeas corpus

- 9 - to request that he be allowed to return home, which was followed

by the Government's obtaining of a material witness arrest warrant

three days later.

On July 16, Plaintiffs were granted temporary parole

while their Significant Public Benefit Parole applications,

submitted by the Coast Guard Investigative Service ("CGIS"), were

pending. Once paroled by CBP, Plaintiffs' passports changed hands

at CBP's request as a condition of Plaintiffs' release from the

vessel from MST to the Coast Guard. The material witness arrest

warrants included a requirement that Plaintiffs surrender their

passports to the Coast Guard. Per the Agreement, Plaintiffs were

lodged in a hotel in Maine, checked on once a day, and given a

meal allowance, healthcare coverage, and wages. On July 30,

Hornof's mother-in-law died, resulting in his counsel requesting

permission on August 3 to allow Hornof to leave the United States

by October 1. Hornof requested his passport, and the Government

obtained an arrest warrant for him as a material witness on

August 9, followed by Kordic's arrest warrant as a material witness

on August 21 after his passport request on August 9. On August 22,

Hornof and Kordic testified before a grand jury, resulting in the

indictment of MST.

That same day, Plaintiffs challenged the validity of the

material witness arrest warrants, claiming that the affidavits

prepared by CGIS Special Agent Mark Root ("Special Agent Root")

- 10 - contained misleading and false information, requesting Plaintiffs

be deposed pursuant to Federal Rule of Criminal Procedure 15(a)(2).

Special Agent Root had drafted and signed the affidavits for each

of Plaintiffs, with the affidavits including mostly identical

information except for differences regarding the specific role of

each Plaintiff and the information they provided in their

interviews. A Magistrate Judge determined that Plaintiffs had

been detained under the material witness statute, 18 U.S.C. § 3144,

and ordered they be deposed within 30 days and permitted to leave

the United States thereafter. Plaintiffs were deposed on

September 11 and 12, 2017 and subpoenaed to testify at MST's trial.

Plaintiffs' motion to quash the subpoenas was denied. On

September 14, Plaintiffs left the United States.

MST was criminally prosecuted for APPS violations and

obstruction of justice. MST, 2018 WL 522764, at *1. Plaintiffs

returned to the United States to testify at trial on May 7, 2018,

and learned that MST was negotiating a plea agreement that did not

include criminal liability under APPS, therefore leaving

Plaintiffs with no hope of a whistleblower award. They moved to

be heard in connection with the plea and to be rewarded as

whistleblowers under APPS. The district court suggested that

Hornof's actions should be rewarded as it acknowledged the risks

he took. The plea agreement was revised and MST pled guilty to

two counts, one regarding the failure to maintain the Oil Record

- 11 - Book and one for obstruction of justice. The district court

allocated half of the $500,000 monetary penalty for the APPS

violation to Plaintiffs: $225,000 to Hornof, and $12,500 each to

Kordic and Zak.

C. Procedural History

In May 2019, Plaintiffs filed a civil action against the

United States, the DOJ, the DHS, the Coast Guard, and nine

individual employees who worked on the investigation.7 Plaintiffs

asserted claims against Defendants under the FTCA, APPS, and

federal statutes against peonage, involuntary servitude, and human

trafficking, seeking declaratory and injunctive relief, damages,

and attorneys' fees. Plaintiffs asserted claims against the

individual Defendants under Bivens and RICO.8 Defendants filed

two motions to dismiss: one on behalf of all Defendants arguing

sovereign immunity, a lack of subject matter jurisdiction, and

failure to state a claim under Federal Rule of Civil Procedure

12(b)(6) ("Rule 12(b)(6)"), and one on behalf of the individual

7 The individual defendants are three federal prosecutors, four Coast Guard officials, and two CBP officials. 8 We discuss only the claims at issue on appeal: the FTCA

claims for false arrest, false imprisonment, abuse of process, and intentional infliction of emotional distress and the Bivens claim.

- 12 - Defendants under Rule 12(b)(6). The district court granted the

joint motion in part and the individual Defendants' motion in full.

Plaintiffs' FTCA claims for false imprisonment and false

arrest, abuse of process, and intentional infliction of emotional

distress were permitted to proceed, and the other claims in the

amended complaint, along with the Bivens claim, were dismissed.

The district court concluded that the Bivens remedy was unavailable

because Plaintiffs' claims presented a "new context" under Bivens

and that special factors counseled hesitation, including both

challenging the implementation of a general policy and the presence

of alternative remedies.

Defendants filed a motion for summary judgment and the

district court entered judgment in their favor.9 As for the false

arrest and imprisonment claims, the district court determined that

Defendants had the authority to revoke the land permits and remand

Plaintiffs to the vessel, and that Plaintiffs did not show that,

in any event, the revocations caused them to be unlawfully

confined. Next, the district court concluded that the record could

not support a finding that the revocation of the permits resulted

9Before entering judgment, the district court ordered the parties to address two new issues: (1) whether 8 U.S.C. § 1252(a)(2)(B)(ii) barred judicial review of the decisions to revoke the D-1 and D-2 shore passes and remand Plaintiffs to the vessel, and (2) whether the revocation of the shore passes was an immigration enforcement-related action that has no analogous private person liability, therefore not actionable under the FTCA.

- 13 - in unlawful confinement or that Plaintiffs' detention on the vessel

was unauthorized. The district court determined that Plaintiffs

had not provided a trial-worthy issue of whether the nine-day

confinement on the vessel differed from their initial detention at

the port and that a reasonable jury could not find that their

detention was unauthorized. The duration of the detention was

also found not to be unreasonable under the Fourth Amendment. The

district court then concluded that Defendants were authorized to

apply for Significant Public Benefit Parole for Plaintiffs, that

the delay in issuing the warrants for potential material witnesses

was de minimis as to Hornof, and that Kordic remained lawfully

detained in the United States. The district court determined that

once Plaintiffs requested their passports, the public benefit of

Plaintiffs' parole had not yet been fulfilled and thus the denial

to return their passports was authorized. The district court

concluded that the record satisfied both the materiality and

impracticability prong of the material witness warrants, therefore

Plaintiffs were not falsely imprisoned after receiving the

warrants.

As for the abuse of process claim, the district court

concluded that the record could not support that the affidavits

were submitted for an improper or collateral purpose, therefore

the claim failed. As for the intentional infliction of emotional

distress claim, the district court concluded that because

- 14 - Plaintiffs could not establish material elements for their false

arrest, false imprisonment, or abuse of process claims, their

intentional infliction of emotional distress claim could not

survive. Even if one of the other claims was viable, the record

did not support that Defendants' behavior was "extreme and

outrageous" exceeding "all possible bounds of decency." This

timely appeal followed.

II. Discussion

Plaintiffs' main argument is that they did not commit a

United States crime, so they could not have been detained.

Plaintiffs further claim that the district court erred in

(1) ruling that Plaintiffs could not establish false arrest or

false imprisonment under the FTCA and had not raised material facts

to reasonably find that the government officials had exceeded their

lawful authority, (2) determining that Plaintiffs could not

establish abuse of process under the FTCA, (3) determining that

Plaintiffs could not establish intentional infliction of emotional

distress under the FTCA, and (4) dismissing the Bivens claim. We

address these arguments seriatim.

A. Summary Judgment for FTCA Claims

1. Standard of Review

We review a challenge to an order of summary judgment de

novo. See López-Hernández v. Terumo P.R. LLC, 64 F.4th 22, 28

(1st Cir. 2023) (citing Murray v. Kindred Nursing Ctrs. W. LLC,

- 15 - 789 F.3d 20, 25 (1st Cir. 2015)). We view the record "in the light

most favorable to the nonmovant and draw[] all reasonable

inferences in that party's favor." Id. (citing Murray, 789 F.3d

at 25). Summary judgment shall be granted "if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(a). A genuine dispute "is one on which the evidence would

enable a reasonable jury to find the fact in favor of either

party." Perez v. Lorraine Enters., Inc., 769 F.3d 23, 29 (1st

Cir. 2014) (citing Vasapolli v. Rostoff, 39 F.3d 27, 32 (1st Cir.

1994)). "A 'material' fact is one that is relevant in the sense

that it has the capacity to change the outcome of the jury's

determination." Id. (citing Borges ex rel. S.M.B.W. v.

Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). However, "we need

not credit 'conclusory allegations, improbable inferences, and

unsupported speculation.'" Dixon-Tribou v. McDonough, 86 F.4th

453, 458 (1st Cir. 2023) (quoting Lahens v. AT&T Mobility P.R.,

Inc., 28 F.4th 325, 333 (1st Cir. 2022)).

2. FTCA

"The FTCA provides 'a limited congressional waiver of

the sovereign immunity of the United States for tortious acts and

omissions committed by federal employees acting within the scope

of their employment.'" Soto-Cintrón ex rel A.S.M. v. United

States, 901 F.3d 29, 33 (1st Cir. 2018) (quoting Díaz-Nieves v.

- 16 - United States, 858 F.3d 678, 683 (1st Cir. 2017)). The FTCA

"expressly allows actions for claims of 'assault, battery, false

imprisonment, false arrest, abuse of process, or malicious

prosecution.'"10 Solis-Alarcón v. United States, 662 F.3d 577, 583

(1st Cir. 2011) (quoting 28 U.S.C. § 2680(h)). "We look to local

law to determine" government liability. Soto-Cintrón, 901 F.3d at

33. And here, that means that "we must extract the substantive

rules of decision from [Maine] law." Id. (quoting Calderón-Ortega

v. United States, 753 F.3d 250, 252 (1st Cir. 2014)).

a. False Arrest and False Imprisonment

Under Maine law, both false arrest and false

imprisonment require that the plaintiff was confined. See Steeves

v. City of Rockland, 600 F. Supp. 2d 143, 184 (D. Me. 2009)

(citation omitted); Smith v. Heritage Salmon, Inc., 180 F. Supp.

2d 208, 220 (D. Me. 2002). To prevail, "the authority upon which

[the plaintiff] is confined must be unlawful." Santoni v. Potter,

10The discretionary function exception under the FTCA, a common exception to the waiver of sovereign immunity, "bars liability for claims 'based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.'" Evans v. United States, 876 F.3d 375, 380 (1st Cir. 2017) (quoting 28 U.S.C. § 2680(a)). We need not consider this exception as Plaintiffs' claims are rooted in the violation of the Fourth Amendment, and "[i]t is elementary that the discretionary function exception does not . . . shield conduct that transgresses the Constitution." Limone v. United States, 579 F.3d 79, 101 (1st Cir. 2009). In addition, the claims fail as a matter of law on other grounds.

- 17 - 369 F.3d 594, 603 (1st Cir. 2004) (quoting Nadeau v. State, 395

A.2d 107, 116 (Me. 1978)).

As an initial matter, Plaintiffs argue that Defendants

were not authorized to hold Plaintiffs as witnesses to a crime

because no crime was committed.

Plaintiffs first attempt to discredit the Government's

reliance on APPS and its accompanying regulations to detain and

prosecute them by arguing that its interpretation is invalid when

viewed in the context of the wider legislative scheme. Plaintiffs

contend that although the Coast Guard's regulation makes reference

to a ships' duty to "maintain" an Oil Record Book, MARPOL makes

clear that "maintain" just means "keep on board." Further,

Plaintiffs argue that the duty to inspect a vessel's Oil Record

Book "affords no right to take any further action against the

foreign vessel other than to report it to the flag state."

Therefore, Plaintiffs posit that it is untenable to think that the

United States cannot prosecute ship owners for failing to properly

record their high-seas violations, but can prosecute the ship for

arriving to the United States with an Oil Record Book that has

failed to properly record the event.

Next, Plaintiffs insist that the Oil Record Book

regulations are derived from the Oil Pollution Act of 1961,11 which

11 Pub. L. No. 87-167, 75 Stat. 402.

- 18 - required every United States-flagged ship to carry an Oil Record

Book. Plaintiffs note that there were no penalties for

foreign-flagged ships that did not carry Oil Record Books,

therefore the current Coast Guard regulation should not apply to

Oil Record Book entries made on foreign vessels with respect to

high-seas violations. Further, they argue that an improper entry

made on the high seas cannot be a continuing offense when entering

the United States.12

Plaintiffs next attempt to make a textual argument

stating that 33 C.F.R. § 151.25(a) and (j)13 do not require a vessel

12 For support, Plaintiffs refer to a 2000 General Accounting Office ("GAO") report. This argument rests on speculation that the Coast Guard was misleading the GAO as to why the Coast Guard essentially ceased to refer foreign-flagged ships cases to their flag state when the Oil Record Book regulations were put into place and were prosecuting more cases in the United States. Plaintiffs claim that the Coast Guard and the DOJ "disregarded" recommendations to increase referrals to foreign flag states, and the Coast Guard instead changed the meaning of the Oil Record Book regulation. This argument is speculative and unpersuasive. Because, as we later explain, APPS unambiguously allows the Coast Guard to prosecute foreign vessels for maintaining inaccurate Oil Record Books, we see no relevance in the Coast Guard's historical enforcement of APPS. 13 Section 151.25(a) states:

[E]ach oil tanker of 150 gross tons and above, ship of 400 gross tons and above other than an oil tanker, and manned fixed or floating drilling rig or other platform shall maintain an Oil Record Book Part I (Machinery Space Operations). An oil tanker of 150 gross tons and above or a non oil tanker that carries 200 cubic meters or more of oil in bulk, shall also maintain an Oil Record Book Part II (Cargo/Ballast Operations).

- 19 - to maintain an Oil Record Book that is "complete" and "accurate,"

and the terms are not subsumed within "maintain." Further,

Plaintiffs argue that "maintain" and "keep" are used

interchangeably in the Coast Guard regulation, with § 151.25(a)

specifying the types of vessels that are required to maintain an

Oil Record Book, and § 151.25(j) stating that the master or other

person in charge is required to "keep" an Oil Record Book and

"shall be responsible for the maintenance of such record," thereby

the terms must have the same meaning. 33 C.F.R. § 151.25(a), (j).

Plaintiffs contend that the person in charge of record-keeping is

responsible for preservation, not accuracy.

Other circuits faced with this same question, whether

the improper maintenance of an Oil Record Book in violation of 33

C.F.R. § 151.25 is a valid crime, have answered the question in

the affirmative. See Vastardis, 19 F.4th at 583; Ionia, 555 F.3d

at 308; United States v. Jho, 534 F.3d 398, 404 (5th Cir. 2008).

We find no reason to come to a different conclusion.

The Fifth Circuit in Jho stated that "ignoring the duty

to maintain [an Oil Record Book] puts the [Coast Guard] regulation

at odds with MARPOL and Congress' clear intent under the APPS to

prevent pollution at sea according to MARPOL." Jho, 534 F.3d at

33 C.F.R. § 151.25(a). Section 151.25(j) states "[t]he master or other person having charge of a ship required to keep an Oil Record Book shall be responsible for the maintenance of such record." 33 C.F.R. § 151.25(j).

- 20 - 403. If no maintenance were required of Oil Record Books within

United States waters, foreign-flagged vessels could falsify all

their information before entering United States waters or ports.

Id. This would significantly hinder the Coast Guard's ability to

inspect ships for wrongdoing and permit polluters to harm the

environment. Id. Accordingly, we agree with the Fifth Circuit

and cannot conclude that Congress intended to "frustrate the

government's ability to enforce MARPOL[]" when imposing

limitations on APPS's application to foreign-flagged vessels. Id.

The requirement to "maintain" the Oil Record Book "impos[es] a

duty upon a foreign-flagged vessel to ensure that its oil record

book is accurate (or at least not knowingly inaccurate) upon

entering the ports of navigable waters of the United States." Id.

The Second Circuit in Ionia delved deeper into the plain

text of the Coast Guard regulation. Ionia, 555 F.3d at 309.

"Maintain" means to "keep in an existing state (as of repair,

efficiency, or validity)." Maintain, Merriam-Webster Online

Dictionary, https://www.merriam-webster.com/dictionary/maintain

[https://perma.cc/MPM6-KSKN] (last visited May 24, 2024). "In the

context of a regulation imposing record-keeping requirements, the

duty to 'maintain' plainly means a duty to maintain a reasonably

complete and accurate record." Ionia, 555 F.3d at 309. It is

thus unreasonable to conclude that the Coast Guard regulation

- 21 - requires only the preservation of the Oil Record Book in its

existing state without accuracy. Id.

Finally, the Third Circuit in Vastardis relied on its

decision in United States v. Abrogar, 459 F.3d 430 (3d Cir. 2006),

to further support that 33 C.F.R. § 151.25 is a valid regulation

based on its plain reading. Vastardis, 19 F.4th at 584 (citing

Abrogar, 459 F.3rd at 435). In Abrogar, later reiterated by

Vastardis, the court determined that the failure to maintain an

Oil Record Book offense was satisfied even though the conduct which

had been recorded occurred on the high seas. Vastardis, 19 F.4th

at 584. This is because the crime committed pertained to the Oil

Record Book not being properly maintained while in a United States

port, not the conduct on the high seas. Id.

Further, the Third Circuit emphasized that the Coast

Guard regulation does not "flout the division of authority set

forth in MARPOL and [APPS]." Id. Flag states are permitted to

prosecute misconduct no matter where it occurs, whereas port states

have concurrent jurisdiction to prosecute conduct in their own

ports. Id.; International Convention for the Prevention of

Pollution from Ships, supra, Art. 4(1)-(2), 1340 U.N.T.S. at 185;

id. Art. 6(2), 1340 U.N.T.S. at 187. "Port states also play a key

role in detecting (if not prosecuting) such misconduct."

Vastardis, 19 F.4th at 584. In order for a port state to refer

violations on the high seas to flag states, a vessel must maintain

- 22 - accurate Oil Record Books to be reviewed by port officials like

the Coast Guard. Id. Vastardis noted that without this

prohibition, vessels could have two Oil Record Books: one accurate

for flag-state inspection and one false for port-state inspection,

diminishing the importance of the record book to begin with. Id.

at 585.

We follow these analyses and conclude that 33 C.F.R.

§ 151.25 is indeed a valid regulation under the jurisdiction of

the United States based on its text, and does not circumvent MARPOL

or APPS, but instead ensures both are upheld, furthering the

objectives prescribed. To hold otherwise would flout

international law and defeat the purpose of MARPOL and APPS -- to

permit member states to report violations and foster a spirit of

international accountability. Our analysis and conclusion dispose

of many of Plaintiffs' arguments, and the rest remain

unpersuasive.14 Therefore, the requirement for ships to "maintain"

an Oil Record Book under 33 C.F.R. § 151.25 is valid, and based on

the facts, was properly pursued by the United States Government.

14Plaintiffs also rely on the major-questions doctrine in support of their narrower interpretation of APPS, reasoning that Congress would not have delegated to the Coast Guard the ability to alter "both Congressionally-established national policy and international policy." But the major-questions doctrine merely dictates the level of deference a court should extend to an agency's interpretation of a statute. And here, we need not extend any deference to the Government's preferred reading of APPS; the statute speaks clearly.

- 23 - Having established that 33 C.F.R. § 151.25 is valid, we

conclude that Plaintiffs' arguments for false arrest and false

imprisonment are unpersuasive. Plaintiffs argue that the primary

issue is whether the officials had the legal authority to confine

the crewmembers and whether Plaintiffs' detentions were reasonable

under the Fourth Amendment. Plaintiffs refer to four distinct

periods in question: (1) false arrest from the unlawful revocation

of the permits, (2) false imprisonment on the vessel resulting

from the revocation of the permits and implementation of the

Agreement from July 8 to July 16, 2017, (3) false imprisonment on

United States soil from July 16 until August 21 when all of

Plaintiffs' arrest warrants were issued, and (4) false

imprisonment within the United States based on the material witness

warrants supported by "false and misleading affidavits."

i. Revocation of Permits and Detention from July 8 to July 16

To begin, we can easily dismiss Plaintiffs' argument

that CBP falsely arrested and imprisoned them by revoking their

landing permits because nothing in the record supports a conclusion

that the revocation resulted in confinement, as per Maine law.

True, when the CBP revoked the landing permits, Plaintiffs were

prohibited from disembarking. But that alone is not a confinement.

See Restatement (Second) of Torts § 36, cmt. b, illus. 8 (Am. Law.

Inst. 1965) ("A wrongfully prevents B from entering the United

States. A has not confined B, although B, in a sense, may be said

- 24 - to be confined within the rest of the habitable world."). The

crew was confined to the ship because the Coast Guard ordered the

ship to stay in the port; had that order not been in place, the

ship could have departed. Thus, the act of revoking the permits

cannot serve as a basis for the FTCA claim.

Nor can the ensuing nine-day shipboard detention.

Outside of one conclusory sentence in their opening brief,

Plaintiffs fail to argue on appeal that the Coast Guard lacked

statutory authorization to hold the ship in Portland. We

accordingly consider that argument waived. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Further, we disagree

with Plaintiffs' arguments that the confinement was

unconstitutional, lacking due process under the Fifth Amendment,

or interfering with Plaintiffs' Fourth Amendment privacy and

security rights. The Supreme Court has held that a noncitizen

"seeking initial admission to the United States requests a

privilege and has no constitutional rights regarding his

application, for the power to admit or exclude [noncitizens] is a

sovereign prerogative." Landon v. Plasencia, 459 U.S. 21, 32

(1982). Specifically related to the Fourth Amendment claims, as

stated by the district court, "it was not arbitrary or unreasonable

for immigration officials, once informed that the Coast Guard had

probable cause to believe that violations of federal law had

occurred and that the crewmembers would be critical witnesses in

- 25 - the investigation, to revoke the conditional landing permits," and

detain Plaintiffs on the vessel. We must balance the alleged

intrusion on Plaintiffs' Fourth Amendment protections against the

Government's interests and the importance of said interests to

justify said intrusion. Scott v. Harris, 550 U.S. 372, 383 (2007).

Even assuming there was such an intrusion, the Government's

interest in conducting a criminal investigation and preserving

material noncitizen witnesses outweighs it. Therefore, there is

no genuine issue of material fact as to unlawful confinement on

the vessel.

ii. Detention from July 16 to August 21

Plaintiffs argue that because they did not consent to

the Agreement, they therefore did not consent to their parole and

its conditions, resulting in them being "forced ashore." However,

there is nothing in the record to support the contention that the

Plaintiffs were "forced ashore." For example, the Agreement

expressly limited MST's obligations to "request[ing]" that

Plaintiffs and other potential witnesses surrender their passports

to MST while the ship remained in port, and that those crewmembers

disembark and remain in Maine during the investigation. So, even

if Plaintiffs were misinformed about the Agreement, the fault, if

any, would seemingly lie with MST rather than the Government.

Meanwhile, Plaintiffs point to no reliable evidence suggesting

government wrongdoing. Alternatively, the record supports the

- 26 - finding that there was an ongoing criminal investigation with

probable cause of a federal violation and indications that

Plaintiffs were material witnesses. In addition, the record

supports a finding that reasonable conditions of parole were

imposed to achieve the objective of the investigation. Therefore,

the record cannot support a finding that the parole was

unjustified. No reasonable jury could find that the Agreement

"forced" the Plaintiffs ashore, therefore the jury could not find,

based on the evidence presented, that the Government lacked

justification to submit the Plaintiffs to Significant Public

Benefit Parole. Because the Plaintiffs do not otherwise challenge

the lawfulness of the parole, they cannot show that the parole

resulted in false imprisonment or arrest.

iii. Continued Detention after Arrest Warrants

Plaintiffs claim that the Government was not authorized

to arrest Plaintiffs because the warrants were secured by

misleading affidavits. Under 18 U.S.C. § 3144, prosecutors may

ask a judge to "order the arrest of" material witnesses and "treat

[them] in accordance with" the detention provisions of the criminal

code. Live testimony of material witnesses is preferred to Rule

15 depositions. United States v. Mann, 590 F.2d 361, 366 (1st

Cir. 1978); Fed. R. Crim. P. 15. To secure material witnesses,

warrants must be issued. There are two parts to determine whether

a warrant was properly issued. "If it appears from an affidavit

- 27 - filed by a party that the testimony of a person is material in a

criminal proceeding," the materiality prong, "and if it is shown

that it may become impracticable to secure the presence of the

person by subpoena," the impracticability prong, the person may be

arrested. 18 U.S.C. § 3144. Plaintiffs claim that because there

was no violation of APPS, the materiality prong of the analysis

was not satisfied. We have, however, already determined that there

was a valid violation of APPS under investigation at the time of

the arrest warrants, therefore the materiality prong was

satisfied.

We now turn to the impracticability analysis.

Plaintiffs next claim that Special Agent Root noted in his

affidavits that Plaintiffs lived overseas, but "deliberately

omitted numerous material facts casting doubt on the need for

[Plaintiffs'] detention." The allegedly omitted facts include

that Plaintiffs were cooperative and agreed to testify, Hornof had

appeared to testify prior to his arrest warrant, Kordic had agreed

to testify one day after Special Agent Root's request for his

arrest, APPS' witnesses have a strong incentive to testify due to

the potential award, the United States had treaties requiring

cooperation with subpoenas with some of Plaintiffs' home

countries, the Government had held Plaintiffs in its custody,

Plaintiffs' passports were being held, Plaintiffs were being

- 28 - monitored by the Government, and that Plaintiffs had petitioned

the court for the return of their passports.

"A Fourth Amendment violation may be established if [it

can be shown] that officers acted in reckless disregard, with a

'high degree of awareness [that] [the statements'] probable

falsity'" were used to support an arrest warrant. Forest v.

Pawtucket Police Dep't, 377 F.3d 52, 58 (1st Cir. 2004) (third

alteration in original) (citation omitted). In addition, "the

intentional or reckless omission of material exculpatory facts

from information presented to a magistrate may also amount to a

Fourth Amendment violation." Burke v. Town of Walpole, 405 F.3d

66, 81 (1st Cir. 2005); United States v. Awadallah, 349 F.3d 42,

64 (2d Cir. 2003). "Reckless disregard for the truth in the

submission of a warrant application may be established where an

officer 'in fact entertained serious doubts as to the truth of the

allegations' or where 'circumstances evinc[ed] obvious reasons to

doubt the veracity of the allegations' in the application." Burke,

405 F.3d at 81 (alteration in original) (quoting United States v.

Ranney, 298 F.3d 74, 78 (1st Cir. 2002)). "[R]ecklessness may be

inferred where the omitted information was critical to the probable

cause determination." Id. at 81-82 (quoting Golino v. New Haven,

950 F.2d 864, 871 (2d Cir. 1991)). The omissions or

misrepresentations must be "material to the probable cause

determination." Id. at 82. To determine if the omissions or

- 29 - misrepresentations were material, "we excise the offending

inaccuracies and insert the facts recklessly omitted, and then

determine whether or not the 'corrected' warrant affidavit would

establish probable cause." Id. (quoting Wilson v. Russo, 212 F.3d

781, 789 (3d Cir. 2000)).

There exists no genuine issue of material fact to even

suggest that Special Agent Root intentionally misrepresented or

omitted facts while drafting the affidavits. The same goes for

any alleged recklessness by Special Agent Root. The allegedly

omitted facts would not have altered or undermined the Magistrate

Judge's finding of probable cause. See Burke, 405 F.3d at 82.

Each Plaintiff is from a foreign country, outside the reach of

United States subpoena power. Even if some of Plaintiffs' home

countries have treaties with the United States requiring them to

cooperate in criminal investigations, their foreign citizenship,

coupled with their requests to obtain their passports and return

to their countries, would have further supported the Magistrate

Judge's probable cause determination if included in the warrant

applications. Plaintiffs did not provide any information or point

to provisions in the treaties that would require them to return to

testify if subpoenaed. Plaintiffs' willingness to testify would

not have undermined the Magistrate Judge's probable cause

determination because as foreign citizens, they could later decide

to refuse to return to the United States to testify.

- 30 - Plaintiffs' argument that their parole conditions and

passport confiscations undermine the Magistrate Judge's decision

also falls flat. The Magistrate Judge was keenly aware that

Plaintiffs were not in possession of their passports when making

the probable cause determination because the applications stated

that there were no prohibitions to them leaving "once [each

crewmember] regains possession of his passport." This bolsters,

not hinders, the probable cause determination.

Plaintiffs' assurances to testify and their alleged

incentive to testify through the APPS award similarly leaves the

probable cause determination unaltered if such were added to the

warrant applications. In nearly identical circumstances, it has

been insufficient to rely on witnesses' promises to testify because

once they are beyond the jurisdiction of the United States, the

impracticability of securing their testimony is too great. See In

re M/V Joanna, No. 21-mc-592, 2021 WL 2514687, at *11 (E.D. La.

June 18, 2021). Even with the alleged incentive to return for the

APPS reward, it is not enough. It is not clear that Special Agent

Root had knowledge of this incentive or that the facts suggest

that Plaintiffs would have been incentivized to return. Therefore,

under the circumstances presented, the combination of information

provided in the arrest warrant applications -- Plaintiffs' foreign

citizenship, their documented requests to obtain their passports,

their requests to terminate parole, their lack of connection to

- 31 - the United States, and their expressed desires to leave -- was

sufficient for an impracticability finding. Plaintiffs' alleged

additional facts are insufficient to change the analysis.

Accordingly, the false arrest and false imprisonment claims fail

as well.

b. Abuse of Process

The FTCA permits claims for abuse of process arising

from "acts or omissions of" federal "investigative or law

enforcement officers." 28 U.S.C. § 2680(h). "Elements necessary

to sustain such an action include (1) a use of the process in a

manner not proper in the regular conduct of the proceedings and

(2) the existence of an ulterior motive." Nadeau, 395 A.2d at

117. "Abuse of process may be demonstrated 'if a Plaintiff can

show an improper use of process for an immediate purpose other

than that for which it was designed and intended.'" OfficeMax

Inc. v. Sousa, 773 F. Supp. 2d 190, 240 (D. Me. 2011) (quoting

Grace v. Yarnall, 346 F. Supp. 2d 222, 224 (D. Me. 2004)).

Plaintiffs claim that Special Agent Root used fraudulent

affidavits to secure arrest warrants against them. In addition,

Plaintiffs claim that the paperwork for revocation of Plaintiffs'

landing permits "using the fiction that they were not bona fide

crewmen," and using the parole process "solely for the purpose of

detaining on U.S. soil crewmembers who had no desire to be there,"

could be found by a jury as abuses of process. However, the only

- 32 - conclusion to be drawn from the record is that Special Agent Root

and the other investigative officials had secured the arrest

warrants, revoked the visas, and detained Plaintiffs in order to

advance the Government's criminal investigation and ensure that

Plaintiffs remained in the United States to participate in the

proceedings against MST. Even in the light most favorable to

Plaintiffs, there is no factual support in the record that Special

Agent Root or any other official took action for a different,

improper reason -- nor did Plaintiffs identify any support here or

below. Therefore, the district court was correct in concluding

that Plaintiffs could not establish their abuse of process claim.

c. Intentional Infliction of Emotional Distress

We also agree with the district court that the Government

was entitled to summary judgment on the intentional infliction of

emotional distress claim. Under Maine law,

[t]he four elements of a claim for intentional infliction of emotional distress are that "(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from her conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, utterly intolerable in a civilized community; (3) the actions of the defendant caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the

- 33 - plaintiff was so severe that no reasonable person could be expected to endure it."

Argereow v. Wesberg, 195 A.3d 1210, 1219 (Me. 2018) (quoting Curtis

v. Porter, 784 A.2d 18, 22-23 (Me. 2001)). "The determination of

whether the facts alleged are sufficient to establish that the

defendant's conduct is 'so extreme and outrageous to permit

recovery' is a question of law for the court to decide." Id.

(quoting Champagne v. Mid-Maine Med. Ctr., 711 A.2d 842, 847 (Me.

1998)). To prove extreme and outrageous conduct, a plaintiff must

allege that the defendant did more than merely break the law. See

Bratton v. McDonough, 91 A.3d 1050, 1058 (Me. 2014).

Plaintiffs do allege extreme and outrageous conduct;

they accuse the Government of knowingly acting with no legal

authority, thereby of "unconscionably treat[ing] Plaintiffs as

human collateral or chattel." But Plaintiffs supply no evidence

supporting that allegation. As we have explained, the record does

not indicate that the government officials acted unlawfully and

thus certainly cannot support a conclusion that they knew they

were acting unlawfully. Cf. Limone, 579 F.3d at 97-99 (holding

that FBI agents acted extremely and outrageously by not disclosing

exculpatory evidence to state authorities, continuing to advocate

that the authorities arrest the plaintiff, and then "stonewalling"

- 34 - the plaintiff's post-conviction attacks by refusing to investigate

the officer that lied about the plaintiff's guilt).

B. Dismissal of Bivens Claim

"[W]e review the grant of a motion to dismiss de novo,

accepting well-pled facts as true and drawing all inferences in

favor of the non-moving party." Rivera-Rosario v. LSREF2 Island

Holdings, Ltd., 79 F.4th 1, 4 (1st Cir. 2023) (alteration in

original) (quoting Triangle Cayman Asset Co. v. LG & AC, Corp., 52

F.4th 24, 32 (1st Cir. 2022)). "The sole inquiry under Rule

12(b)(6) is whether, construing the well-pleaded facts of the

complaint in the light most favorable to the plaintiffs, the

complaint states a claim for which relief can be granted."

Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2011)

(citing Fed. R. Civ. Pro. 12(b)(6)). We therefore must determine

whether Plaintiffs' complaint provided a viable claim under

Bivens.

2. Bivens Claim

"A Bivens claim is an implied cause of action for civil

damages against federal officials . . . equivalent to the

statutory cause of action against state officials" for

Constitutional violations. Pagán-González v. Moreno, 919 F.3d

582, 586 n.1 (1st Cir. 2019). Bivens claims have been permitted

by the Supreme Court in three situations: (1) in Bivens, 403 U.S.

- 35 - 388, itself, where a man asserted a Fourth Amendment claim against

police officers for handcuffing him in his home without a warrant,

(2) in Davis v. Passman, 442 U.S. 228 (1979), where a congressional

administrative assistant brought a claim under the Fifth Amendment

after she was fired based on her sex, and (3) in Carlson v. Green,

446 U.S. 14 (1980), where an incarcerated person's estate brought

a claim against a prison official under the Eighth Amendment for

failure to provide medical care. See Ziglar v. Abbasi, 582 U.S.

120, 130-31 (2017).

"[E]xpanding the Bivens remedy is now a 'disfavored'

judicial activity." Id. at 135 (quoting Ashcroft v. Iqbal, 556

U.S. 662, 675 (2009)). Because it is generally the role of

Congress, not the courts, to supply a damages remedy, we must

proceed with caution in recognizing implied causes of action in

"new context[s]." Id. at 135-36 (quoting Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 68 (2001)). The context is new "[i]f the

case is different in a meaningful way from previous Bivens cases."

Id. at 139. A case may meaningfully differ if "it implicates a

different constitutional right; if judicial precedents provide a

less meaningful guide for official conduct; . . . if there are

potential special factors that were not considered in previous

Bivens cases," or if there is a "new category of defendants." Id.

at 135, 148. In addition, "the rank of the officers involved,"

and "the risk of disruptive intrusion by the Judiciary into the

- 36 - functioning of other branches" are also taken into consideration

in determining whether the case presents a new context. Id. at

140. If the case is not meaningfully different, Bivens relief is

available. Quinones-Pimentel v. Cannon, 85 F.4th 63, 70 (1st Cir.

2023).

If the case raises a "new context" then "a Bivens remedy

will not be available if there are special factors counselling

hesitation in the absence of affirmative action by Congress."

Ziglar, 582 U.S. at 136 (internal quotation marks and citation

omitted). When conducting a special-factors analysis, it is

important to note that "a Bivens action is not 'a proper vehicle

for altering an entity's policy.'" Id. at 140 (quoting Malesko,

534 U.S. at 74). A Bivens claim is also not a proper avenue for

challenging the "formulation and implementation of a general

policy." Id. at 141. "The necessary inference [when considering

whether special factors counsel hesitation] is that the inquiry

must concentrate on whether the Judiciary is well suited, absent

congressional action or instruction, to consider and weigh the

costs and benefits of allowing a damages action to proceed." Id.

at 136. Courts should analyze "whether there [are] alternative

remedies available." Id. at 149. A special factor counselling

hesitation "must cause a court to hesitate before answering that

question in the affirmative." Id. at 136. If special factors are

- 37 - present, "relief is unavailable." Quinones-Pimentel, 85 F.4th at

70.

a. New Context

Plaintiffs argue that this case does not meaningfully

differ from Bivens, and therefore does not present a new context,

because it is sufficiently comparable to Bivens itself.

Specifically, Plaintiffs contend that, like in Bivens, they too

were arrested by federal law enforcement officials and detained

for months without probable cause. Plaintiffs further argue that

the fact that they were non-resident seamen, and the fact that the

arrest took place on a vessel rather than an apartment, do not

meaningfully differentiate this case from Bivens because

non-residents have the right to bring Bivens claims and the vessel

was effectively Plaintiffs' home for an extended time. In

addition, Plaintiffs argue that it is not a meaningful distinction

that the enforcement officers involved here were members of the

Coast Guard and CBP because they were not enforcing immigration or

national security laws. Lastly, Plaintiffs assert that

recognition of their Bivens claim would not intrude upon another

branch of government because the claim turns on the knowledge and

actions of federal law enforcement officers.

After careful review of the record, we conclude that the

district court properly found that Plaintiffs' Bivens claim

presented a new context. To begin, the plaintiff in Bivens was a

- 38 - United States citizen who challenged a warrantless arrest in his

home pursuant to a narcotics investigation. Here, Plaintiffs are

non-resident seamen challenging their detention on board a foreign

vessel and the events surrounding the detention, providing a

meaningful difference. In addition, Bivens was solely predicated

on a Fourth Amendment claim whereas here, Plaintiffs raise Fourth,

Fifth, Sixth, and Thirteenth Amendment claims. Further, members

of the Coast Guard are generally not subject to Bivens claims.

See Ziglar, 582 U.S. at 137 (citing Chappell v. Wallace, 462 U.S.

296, 302 (1983)) (discussing the viability of Bivens claims

involving the armed forces). The remaining individual defendants

are three prosecutors, which have not been recognized as proper

defendants under Bivens, see Quinones-Pimentel, 85 F.4th at 72

(collecting cases that conclude prosecutors are a new category of

defendants), and two CBP Officials, which could implicate

immigration and national security concerns, see Egbert v. Boule,

596 U.S. 482, 496 (2022) (determining that a court is not competent

"to authorize a damages action . . . against Border Patrol agents

generally").15 "[E]ven a modest extension is still an extension."

Ziglar, 582 U.S. at 147. These characteristics present a

15Plaintiffs argue that this case does not involve immigration policies or national security. However, as discussed below, Plaintiffs do challenge the Agreement put into effect, thereby challenging the Coast Guard's policies, implicating national security concerns, and challenge CBP officials' actions, implicating immigration concerns.

- 39 - meaningful difference, therefore resulting in a new context under

b. Special Factors

Plaintiffs argue that they did not have sufficient

alternative remedies through habeas corpus relief or their motions

for modification of their conditions of release. They claim that

Defendants "used unlawful processes and false and misleading

statements" to prevent Plaintiffs from obtaining an effective

remedy. As to habeas corpus, Plaintiffs claim that Defendants

"avoided communications from the court to forestall a hearing or

conference." They further allege they were deprived of their

assistance of counsel when they were paroled into the United

States. Plaintiffs, however, concede that the court did allow

them to give deposition testimony and leave the country after they

had sought modifications to their conditions of release. Lastly,

Plaintiffs argue that there are no other "special factors" that

counsel hesitation. They claim that "[t]here is no reason to

believe that Congress opposes allowing the victims of such abuse

to directly sue [federal law enforcement officers] when the false

arrest violated the Constitution."

We conclude, however, that there were sufficient

alternative remedies available, and there are other special

factors counseling hesitation. To begin, "the existence of an

alternative remedy . . . gives us sufficient reason to take a

- 40 - beat." Quinones-Pimentel, 85 F.4th at 74. Here, Plaintiffs had

moved the district court for habeas corpus relief, for return of

their passports, and for release after their depositions were

taken. In addition, Plaintiffs received monetary rewards from the

Government for providing evidence in the criminal case. CBP's

grievance process has been recognized as an alternative remedy in

damages claims against CBP officials. Egbert, 596 U.S. at 498

("[W]e have no warrant to doubt that the consideration of Boule's

grievance against Agent Egbert secured adequate deterrence and

afforded Boule an alternative remedy."). "[R]emedies such

as . . . writs of habeas corpus . . . are sufficient to foreclose

Bivens relief and qualify as alternative remedies."

Quinones-Pimentel, 85 F.4th at 74.

Moreover, Plaintiffs' challenge of the Coast Guard's

policy of executing security agreements that require seamen to

remain in the United States presents a special factor. A Bivens

challenge is not the proper avenue for altering an entity's

policies. See Ziglar, 582 U.S. at 140. Plaintiffs also note that

the Liberian government "protested [the United States]

government's actions in detaining the ship." When governments

disagree, however, "[i]t is not our task to arbitrate between

them." Hernandez v. Mesa, 589 U.S. 93, 105-06 (2020). It is

therefore Congress's role "to 'weigh the costs and benefits of

allowing a damages action to proceed'" in this kind of situation,

- 41 - not ours. Quinones-Pimentel, 85 F.4th at 70 (quoting Egbert, 596

U.S. at 492). Due to these factors and the alternative remedies

available to Plaintiffs, the district court did not err in

dismissing the Bivens claim.

III. Conclusion

For the reasons stated, the district court's orders

granting summary judgment and dismissal are

Affirmed.

- 42 -