Angelex Ltd. v. United States , 123 F. Supp. 3d 66 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANGELEX LTD., :
:
Plaintiff, : Civil Action No.: 15-0056 (RC)
:
v. : Re Document No.: 6
:
UNITED STATES OF AMERICA, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS
Plaintiff Angelex Ltd. (“Angelex”), the owner of the foreign-flagged M/V ANTONIS G.
PAPPADAKIS (the “Pappadakis”), filed his action against Defendant the United States of
America (the “Government”) under 33 U.S.C. § 1904(h) seeking compensation for losses and
damages that Angelex incurred as a result of what it alleges was an unreasonable detention and
delay of the Pappadakis by the Government from April to September 2013 during the
Government’s investigation and criminal prosecution of Angelex, the operator of the Pappadakis,
and the Chief Engineer of the Pappadakis relating to the unlawful disposal of oily bilge waste at
sea. See Complaint, ECF No. 3. 1
This is not the first action that Angelex has filed against the Government in connection
with the detention and delay of the Pappadakis. While the Pappadakis was detained in 2013,
1
The Complaint, though styled as the “Original Complaint,” is an amended version of the
complaint that was originally filed. See Original Complaint, ECF No. 1. The Complaint,
however, references exhibits that were only provided with the originally filed version. The Court
treats the amended version as the operative complaint in this action and treats it as incorporating
the exhibits to the originally filed complaint, as the Government appears to have done in its
motion to dismiss. The Court’s treatment does not change the outcome of its analysis.
Angelex filed an emergency petition in the Eastern District of Virginia seeking a court order
fixing terms of surety for release of the Pappadakis. See Angelex Ltd. v. United States, No. 2:13-
cv-237, 2013 WL 1934490 (E.D. Va. May 8, 2013) (“Angelex I”). Though the district court in
that action ordered the Government to release the Pappadakis upon the filing of a penal bond
with certain conditions specified by the court, the Fourth Circuit stayed the order and, on appeal,
reversed the decision and remanded the petition for dismissal for lack of subject matter
jurisdiction. See Angelex Ltd. v. United States, 723 F.3d 500 (4th Cir. 2013) (“Angelex II”).
Following the Fourth Circuit’s decision and the Government’s eventual release of the
Pappadakis in September 2013 after the conclusion of the criminal trial, Angelex filed this action
for compensation. The Government has filed a motion to dismiss the Complaint under Rule
12(b)(6) of the Federal Rules of Civil Procedure, arguing that Angelex’s claim as to the terms of
the Pappadakis’s detention and surety is barred under the doctrine of res judicata and that
Angelex has not pleaded a plausible claim as to the withdrawal of the Pappadakis’s departure
clearance. See Def.’s Mot. Dismiss, ECF No. 6. For the reasons explained below, the Court will
grant the Government’s motion in part and deny the motion in part.
I. BACKGROUND
Angelex is a foreign corporation with a registered office address in Malta. See Compl. ¶
1. The Pappadakis, an ocean-going bulk carrier registered in Malta, is Angelex’s sole fee-
earning asset. See id. ¶¶ 1, 6, 8. At all relevant times, Kassian Maritime Navigation Agency,
Ltd. (“Kassian”), a foreign corporation operating in Greece, managed the Pappadakis pursuant to
a contractual agreement with Angelex. See id. ¶¶ 9–10. Though Kassian managed the
Pappadakis, Angelex, through employment contracts, was the employer of its crew members.
See id. ¶ 7.
2
On or about April 14, 2013, the Pappadakis arrived at the Norfolk Southern terminal
within the Port of Virginia to load a cargo of coal. See id. ¶ 13. On April 15, 2013, U.S. Coast
Guard officers conducted a routine inspection onboard the Pappadakis. See id. ¶ 14. After the
inspection, a member of the Pappadakis crew passed a note to Coast Guard personnel alleging
that the Pappadakis had a so-called “magic pipe,” meaning a temporary modification of the
Pappadakis’s systems intended to bypass the ship’s pollution prevention equipment, known as an
Oil Water Separator. See id. ¶ 15. This tip led the Coast Guard to conduct an expanded
investigation concerning the Pappadakis’s compliance with the Act to Prevent Pollution from
Ships (“APPS”), 33 U.S.C. §§ 1901, et seq. See id. ¶ 19.
A. The Legal Framework
Congress enacted APPS in order to implement two related marine environmental treaties
to which the United States is a party, jointly referred to as “MARPOL”: (1) the 1973
International Convention for the Prevention of Pollution from Ships; and (2) the Protocol of 1978
Relating to the International Convention for the Prevention of Pollution from Ships. See United
States v. Jho, 534 F.3d 398, 401 (5th Cir. 2008). MARPOL is aimed at preventing discharges of
oily waste at sea, and, accordingly, it places limitations on how ocean-going vessels may dispose
of waste. Regulations promulgated under APPS, consistent with MARPOL, require that, in
order to monitor pollution from oil discharges, vessels over a certain tonnage must maintain an
Oil Record Book. See 33 C.F.R. § 151.25. The Oil Record Book must contain, among other
things, an accurate record of discharges of bilge water, sludge, and oily mixtures. See 33 C.F.R.
§ 151.25(d). The Oil Record Book must also be readily available for inspection at all reasonable
times. See 33 C.F.R. § 151.25(i). Under APPS, it is a felony for any person to knowingly
violate MARPOL, APPS, or regulations promulgated under APPS. See 33 U.S.C. § 1908(a).
3
APPS also provides for civil penalties for any violation, whether knowing or not. See 33 U.S.C.
§ 1908(b). In addition, any ship operating in violation of MARPOL, APPS, or APPS regulations
is liable in rem for any criminal fine imposed under Section 1908(a) or civil penalty assessed
under Section 1908(b). See 33 U.S.C. § 1908(d). The Coast Guard has authority to board
vessels and inspect them for compliance with MARPOL, APPS, and APPS regulations. See 14
U.S.C. § 89(a); 33 C.F.R. § 151.23(a). The Coast Guard’s inspection authority includes the
ability to examine the Oil Record Book kept by the vessel. See 33 C.F.R. § 151.23(c).
Importantly, APPS provides that “if reasonable cause exists to believe that the ship, its
owner, operator, or person in charge may be subject to a fine or civil penalty” under Section
1908, then the Secretary of Homeland Security 2 may refuse or revoke the ship’s departure
clearance. 33 U.S.C. § 1908(e). Without the clearance, a foreign vessel may not depart a United
States port. See 46 U.S.C. § 60105(b). A ship’s clearance may be granted or reinstated “upon
the filing of a bond or other surety satisfactory to the Secretary” of Homeland Security. 33
U.S.C. § 1908(e). The Secretary of Homeland Security has delegated authority to detain or deny
entry to ships to the Coast Guard. See 33 C.F.R. § 151.07. U.S. Customs and Border Protection
(“CBP”) is responsible for refusing, revoking, and granting a ship’s departure clearance upon the
request of the Coast Guard. See 19 C.F.R. § 4.66c(a). Regulations provide that if the Coast
Guard requests that CBP refuse or revoke the clearance for the reasons stated in Section 1908(e),
then CBP must do so. See id. The regulation also states that “[c]learance or a permit to proceed
2
As other courts have noted, while the text of the statute speaks in terms of the Secretary
of the Treasury refusing or revoking a ship’s departure clearance upon the request of the
Secretary of Homeland Security, Congress reassigned responsibility for issuing departure
clearances to the Secretary of Homeland Security without updating the language of Section
1908(e). See Monarch Shipping Co. v. United States, Civ. No. 13-80661, 2013 WL 5741836 at
*5 n.4 (S.D. Fla. Aug. 15, 2013).
4
may be granted when [CBP] is informed that a bond or other security satisfactory to the Coast
Guard has been filed.” Id.Most relevant to this case, APPS also provides that “[a] ship unreasonably detained or
delayed by the Secretary [of Homeland Security] acting under the authority of this chapter is
entitled to compensation for any loss or damage suffered thereby.” 33 U.S.C. § 1904(h). A
separate section of the statute, titled “Legal Actions,” specifically provides for causes of action
under APPS with certain limitations. See 33 U.S.C. § 1910. Section 1910(a) provides four
grounds for any person having an adversely affected interest to bring an action: (1) against “any
person alleged to be in violation of the provisions” of APPS or its regulations; (2) against the
Secretary of Homeland Security “where there is alleged a failure of the Secretary to perform any
act or duty under this chapter which is not discretionary with the Secretary”; (3) against the
Administrator of the Environmental Protection Agency “where there is alleged a failure of the
Administrator to perform any act or duty under this chapter which is not discretionary”; and (4)
against the Secretary of the Treasury where there is an alleged failure of the Secretary to take
action under Section 1908(e). 33 U.S.C. § 1910(a). The Section also requires that the plaintiff
must give notice, in writing and under oath, to “the alleged violator, the Secretary concerned or
the Administrator, and the Attorney General” of the plaintiff’s claim more than 60 days before
commencing an action under Section 1910(a). 33 U.S.C. § 1910(b)(1).
B. Initial Withdrawal of Departure Clearance and Surety Demands
The Coast Guard’s investigation of the Pappadakis began soon after it received the tip
from one of the Pappadakis’s crewmembers. In the days that immediately followed, Coast
Guard officers and agents took control of the Pappadakis, performed inspections, and conducted
several rounds of interviews of crewmembers. See Compl. ¶¶ 19–24. The Coast Guard
5
completed its onboard investigation on April 19, 2013. See id. ¶ 24. The same day, the Coast
Guard’s Captain of the Port for the Hampton Roads Sector sent a letter to Angelex and Kassian
informing them that the Coast Guard had collected evidence “establishing reasonable grounds to
believe” that the Pappadakis had violated MARPOL and APPS. Letter (Apr. 19, 2013), Compl.
Ex. 2 at 13, ECF No. 1-1. 3 The letter also stated that, pursuant to 33 U.S.C. § 1908(e), the Coast
Guard had requested that CBP withhold the Customs departure clearance required for the
Pappadakis to depart the port. See id. The letter stated that, pursuant to APPS, “[w]hen adequate
surety has been provided to this office, we will notify CBP and request they grant departure
clearance” for the Pappadakis. Id.Discussions between Angelex and the Coast Guard concerning the terms of a surety that
would be satisfactory to the Coast Guard began soon thereafter. During these discussions, the
Coast Guard made a number of demands that Angelex alleges were unreasonable and unrelated
to ensuring the payment of a potential fine or penalty. See Compl. ¶¶ 30–31. The Coast Guard
demanded, for example, that Angelex and Kassian jointly and severally post a bond in the
amount of $3 million. See id. ¶ 38. The Coast Guard also demanded that Angelex agree to
several non-monetary conditions, including expressly waiving all jurisdictional defenses, paying
the salaries and expenses for several crewmembers to remain in the Eastern District of Virginia,
stipulating to the authenticity of all documents and items seized from the Pappadakis, and
assisting the Government in effecting service on foreign citizens not located in the United States.
See id. ¶¶ 33 n.8. Angelex alleges that the demands were “grossly disproportionate and wholly
3
Angelex filed all of the exhibits to its original complaint, which, as discussed, supra, the
Court treats as incorporated into Angelex’s amended complaint, as one attachment. See ECF No.
1-1. The Court’s page citations to exhibits to the Complaint are to the page numbers of that
attachment, rather than the page numbers of the individual exhibits.
6
unreasonable.” Id. ¶ 39. The Coast Guard refused to negotiate on the amount of the bond and
rebuffed Angelex’s counter-offers. See id. ¶ 40.
C. Litigation in the Fourth Circuit
Unwilling or unable to meet the Coast Guard’s demands, and with the Pappadakis unable
to leave the port, Angelex filed an “Emergency Petition” against the Government, the Coast
Guard, and CBP in the District Court for the Eastern District of Virginia on April 25, 2013
seeking a court order “set[ting] an appropriate bond for the reinstatement of the [Pappadakis’s]
departure clearance.” Id. ¶ 42. See also Angelex I at *3. After Angelex filed the emergency
petition and before the district court held a hearing, the Coast Guard lowered its monetary
demand for the bond to $2.5 million but maintained its other, non-monetary demands. See
Compl. ¶ 43. Angelex counter-proposed a bond of $1.5 million but was rebuffed. See id. ¶ 44.
District Judge Robert Doumar of the Eastern District of Virginia held a hearing on
Angelex’s emergency petition on May 6, 2013. See id. ¶ 48; Angelex I at *3. During the
hearing, the court recessed for a period in order to permit the parties to negotiate further. See
Compl. ¶ 50; Angelex I at *3. Though during the recess the party representatives reached an
agreement in principle for a bond of $1.5 million, plus certain non-monetary conditions, subject
to approval from Coast Guard headquarters, when the court reconvened, the Government
informed the court that Coast Guard headquarters had rejected the settlement and refused to
accept less than the $2.5 million bond it had previously offered. See Compl. ¶ 50; Angelex I at
*3. At the hearing, the Government took the position that the Coast Guard could set any bond
amount that it wanted. See Compl. ¶ 49; Compl. Ex. 5 at 22. Judge Doumar disagreed and, after
first finding that the court had subject matter jurisdiction to hear Angelex’s emergency petition
under both the Administrative Procedure Act (“APA”) and the court’s admiralty jurisdiction,
7
held that the Coast Guard abused its discretion in demanding a bond of $2.5 million and the
imposition of non-monetary conditions. See Angelex I at *9. In reaching his holding, Judge
Doumar stated that the Coast Guard’s position and approach was “simply repugnant to the
Constitution” and stated that “[i]n more than thirty years on the bench, this Court can recall
seeing no greater disregard for due process, nor any more egregious abdication of the reasonable
exercise of discretion.” Id. The court then entered an order setting a bond of $1.5 million with
several specific non-monetary conditions. See Angelex II at 504–05. The Government requested
that the district court temporarily stay its order and simultaneously filed a notice of appeal and
requested a stay from the Fourth Circuit. See id. at 505. The district court denied the stay
motion, but the Fourth Circuit granted it and implemented an expedited briefing schedule. See
id.
In its brief on appeal to the Fourth Circuit, the Government argued, in part, that the APA
did not permit judicial review of the Coast Guard’s surety demands, because APPS commits the
determination of whether and under what conditions a vessel may be granted permission to leave
a United States port to agency discretion. See Pet.’s Br., Pl.’s Opp. Mot. Dismiss Ex. 3 at 4–7,
ECF No. 8-3. As support, the Government argued:
Congress in APPS authorized an after-the-fact remedy for obtaining
compensation from the government, further suggesting that it did
not intend Coast Guard offers of surety to be judicially reviewable.
Under 33 U.S.C. § 1904(h), “[a] ship unreasonably detained or
delayed by the Secretary acting under the authority of this Act [sic]
is entitled to compensation for any loss or damage suffered thereby.”
Congress thus did not leave vessel owners without recourse against
unreasonable denials of clearance. But rather than providing for
judicial review of surety negotiations, it authorized an independent
damages action, separate from the enforcement proceedings against
the vessel.
Id. at 7. The Government made a similar argument to the Fourth Circuit at oral argument held on
June 25, 2013. See Pl.’s Opp. Mot. Dismiss. at 17–18, ECF No. 8 (citing Pl.’s Opp. Ex. 2).
8
The Fourth Circuit reversed the district court’s decision in its entirety on July 22, 2013,
holding that the district court lacked subject matter jurisdiction to hear Angelex’s emergency
petition. See Angelex II at 502. The Fourth Circuit held that, under the APA’s provision that
agency actions committed to agency discretion by law are not subject to judicial review, the
Coast Guard’s position on the terms for the Pappadakis’s release was unreviewable. See id. at
506–09. Most relevant to this action, the court agreed with the Government’s argument on
appeal that Section 1904(h) of APPS provided a remedy for vessel owners such as Angelex
against unreasonable denials of clearance:
Finally, APPS contains a built-in safeguard to governmental abuses,
which further convinces us that Angelex’s Petition is out of place
and time. In addition to the criminal and civil penalties that APPS
authorizes the United States to seek, APPS provides for
compensation for loss or damage as a result of unreasonable
detention by the Coast Guard. Section 1904(h) provides, “A ship
unreasonably detained or delayed by the Secretary acting under the
authority of this chapter is entitled to compensation for any loss or
damage suffered thereby.” 33 U.S.C. § 1904(h). This provision is,
as the government asserts, an “after-the-fact damages remedy
against the United States for unreasonable detention or delay.”
Appellant’s Br. 37. This safeguard gives Appellees a remedy,
distinct from the unauthorized injunctive relief they now seek.
Angelex II at 508–09. Accordingly, the court held, “the district court thereby did not possess
subject matter jurisdiction under the APA.” Id. at 509. After concluding that admiralty
jurisdiction was inapplicable, the court remanded to the district court for dismissal pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure. See id. at 509–10.
D. Criminal Trial and Release of the Pappadakis
The Government’s investigation concerning the Pappadakis’s compliance with MARPOL
and APPS continued during the litigation of Angelex’s emergency petition, and, prior to the
Fourth Circuit’s decision, a grand jury in the Eastern District of Virginia returned an indictment
against Angelex, Kassian, and Lambros Katsipis, the Pappadakis’s Chief Engineer, charging
9
them with conspiracy, falsification of records, failure to maintain an accurate Oil Record Book,
and obstruction of justice. See Indictment, Def.’s Mot. Dismiss Ex. 1, ECF No. 6-2. A jury trial
was conducted from August 30, 2013 to September 13, 2013. See United States v. Kassian
Maritime Navigation Agency, Ltd., et al., Crim. No. 2:13-cr-70 (E.D. Va.) (“Crim”), ECF Nos.
80–89 (Minute Entries). On September 13, 2013, Angelex and Kassian were both acquitted of
all charges. See Crim. ECF No. 91 (Kassian acquittal); Crim. ECF No. 92 (Angelex acquittal).
Mr. Katsipis was convicted on all counts, except conspiracy. See Judgment, Def.’s Mot. Dismiss
Ex. 2, ECF No. 6-3.
Angelex did not meet the Coast Guard’s surety demands, and the Coast Guard and CBP
continued to withhold the Pappadakis’s departure clearance until after the conclusion of the
criminal trial. See Compl. ¶¶ 60–63. On September 16, 2013, the Coast Guard confirmed to
Angelex that the Pappadakis’s departure clearance had been reinstated and that the Pappadakis
was permitted to depart. See id. ¶ 63. The Pappadakis was not put back into sea until October 3,
2013. See id. ¶ 64.
E. Angelex’s Present Claim for Compensation
In a letter dated May 1, 2014 and addressed to the Attorney General, the Secretary of
Homeland Security, and the Commandant of the Coast Guard, Angelex provided written notice
of its claim for compensation under Section 1904(h) for what it alleged was the unreasonable
detention and delay of the Pappadakis. See Notice Letter, Compl. Ex. 1 at 2–11. Angelex
alleged that, as a result of the Coast Guard’s unreasonable detention of the Pappadakis from
April 15, 2013 to September 16, 2013, Angelex incurred “damages, losses, and costs in an
amount estimated to be no less than USD 3,608,375.62” and attached a spreadsheet setting forth
its calculation of damages. Id. At the request of the Coast Guard Office of Claims and
10
Litigation, Angelex provided a supplemental letter on July 21, 2014, providing further detail
regarding its claim. See Letter (July 21, 2014), Compl. Ex. 6 at 24–27. In this letter, Angelex
calculated that its total claim for compensation, exclusive of interest, costs, and fees in pursuing
the matter, was no less than $4,179,907.44. See id.In a letter dated September 19, 2014, the Coast Guard Office of Claims and Litigation
denied Angelex’s claim for compensation and stated that its decision was the “final agency
action” on the claim. Compl. ¶ 72; Letter (Sept. 19, 2014), Def.’s Mot. Dismiss Ex. 4, ECF No.
6-5. The Coast Guard’s letter noted that Angelex’s letter was “the first § 1904(h) claim
presented to the Coast Guard.” Letter (Sept. 19, 2014), Def.’s Mot. Dismiss Ex. 4 at 1. In this
letter, the Coast Guard took the position that, pursuant to Section 1908(e), there was reasonable
cause sufficient to revoke the Pappadakis’s departure clearance in April 2013. See id. at 3–5.
With respect to the terms of surety, the Coast Guard first stated that “there is some question as to
whether § 1904(h) covers such a claim as opposed to being limited to claim for an unreasonable
detention” and that “there does not appear to be a right to release from detention.” Id. at 5–6.
The Coast Guard then explained its position that, nevertheless, the terms of surety it had
demanded were reasonable. See id. 6–7.
On January 14, 2015, Angelex commenced the present action in this Court, stating that
the action is authorized by 33 U.S.C. § 1904(h). 4 See Compl. at 2. Without filing an Answer to
4
It is unclear whether Angelex brings its action pursuant to 33 U.S.C. § 1910, which
authorizes actions against the Secretary of Homeland Security, the Administrator of the EPA, the
Secretary of the Treasury, and “any person,” or whether it is asserting that Section 1904(h)
independently confers a right of action against the United States. Though the Complaint makes
no direct mention of the four grounds for a cause of action provided by Section 1910(a) and
names the United States as the defendant, it states that Angelex’s May 1, 2014 notice letter was
sent in satisfaction of Section 1910(b)’s conditions for commencing an action under Section
1910(a) and that venue in this Court is proper under Section 1910(c)(4). See Compl. ¶¶ 4–5.
The Government does not argue that Angelex’s claim falls outside of the grounds authorized by
11
the Complaint, the Government moved to dismiss the Complaint in its entirety under Rule
12(b)(6) of the Federal Rules of Civil Procedure for failing to state a claim upon which relief can
be granted. See Mot. Dismiss.
II. ANALYSIS
The Government presents two related arguments in support of its motion to dismiss the
Complaint in its entirety. First, the Government argues that, under the doctrine of res judicata,
the Fourth Circuit’s decision in Angelex II precludes Angelex’s claim here with respect to the
terms of surety that the Coast Guard imposed. See Def.’s Mem. Supp. Mot. Dismiss at 14–16,
ECF No. 6-1. Second, the Government argues that, assuming the preclusive effect of the Fourth
Circuit’s decision, the only remaining aspect of Angelex’s claim concerns whether the Coast
Guard’s request that CBP withdraw the Pappadakis’s departure clearance on April 19, 2013 was
reasonable and Angelex has failed to state a facially plausible claim that it was not. See id. at
16–23. The Court first discusses the legal standard for considering a motion to dismiss and then
addresses each of the Government’s arguments in turn.
A. Legal Standard
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim” in order to give the defendant fair notice of the claim and the grounds
upon which it rests. Fed. R. Civ. P. 8(a)(2). Accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate
likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.
Section 1910(a) or that Section 1904(h) does not confer a right of action separate from Section
1910(a). Nor does it argue that Angelex’s notice letter failed to meet the requirements of Section
1910(b), which, among other things, requires the notice to be made under oath. The Court will
not address these issues on its own.
12
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes
that the complaint’s factual allegations are true and construes them liberally in the plaintiff’s
favor. See, e.g., United States v. Philip Morris Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).
“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007) (internal quotation omitted).
Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). This means that a
plaintiff’s factual allegations “must be enough to raise a right to relief above the speculative level
on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,” are therefore insufficient to
withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff’s legal
conclusions as true, see id., nor must a court presume the veracity of the legal conclusions that
are couched as factual allegations. See Twombly, 550 U.S. at 555.
B. Res Judicata
The Government argues that the Fourth Circuit’s decision in Angelex II precludes
Angelex’s claim here with respect to the terms of surety that the Coast Guard imposed as a
prerequisite to granting the Pappadakis departure clearance under Section 1908(e) of APPS. 5
5
Relatedly, the Government also challenges the Complaint’s legal conclusion that Judge
Doumar’s opinion in Angelex I that the Coast Guard’s surety demands constituted an “egregious
abdication of the reasonable exercise of discretion” is the “law of the case.” Compl. ¶ 66
(quoting Angelex I at *9). The Court need not reach this legal issue on the Government’s motion
to dismiss, because the Complaint does not rest solely on this legal conclusion but rather alleges,
13
The Government’s argument is somewhat muddled, referring to two distinct, yet similar, types of
preclusion that are collectively referred to as res judicata. It is therefore necessary to provide an
overview of the doctrine of res judicata.
In modern parlance, “[t]he doctrine of res judicata ‘usually is parsed into claim
preclusion and issue preclusion.’” NextWave Personal Comm’s Inc. v. FCC, 254 F.3d 130, 143
(D.C. Cir. 2001) (quoting I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 946
(D.C. Cir. 1983)). See also Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (“The preclusive effect
of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred
to as ‘res judicata.’”); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 4402 (2d ed. 2015) (discussing the evolution of the terminology of res
judicata). Under claim preclusion, which was traditionally considered synonymous with the
term res judicata, “a final judgment forecloses ‘successive litigation of the very same claim,
whether or not relitigation of the claim raises the same issues as the earlier suit.’” Taylor, 553
U.S. at 892 (quoting New Hampshire v. Maine, 532 U.S. 742, 748 (2001)). By contrast, issue
preclusion, which was traditionally considered distinct from the term res judicata and
alternatively referred to as “collateral estoppel,” “bars ‘successive litigation of an issue of fact or
law actually litigated and resolved in a valid court determination essential to the prior judgment,’
even if the issue recurs in the context of a different claim.” Id. (quoting New Hampshire, 532
U.S. at 748–49).
separate from the opinion in Angelex I, that the Coast Guard’s surety demands were
unreasonable. Nevertheless, the Court observes that Angelex’s legal argument is highly dubious,
as the Fourth Circuit held that the district court lacked subject matter jurisdiction to hear
Angelex’s emergency petition and reversed the decision in its entirety. See Angelex II at 510.
14
It is not entirely clear whether the Government’s argument concerns claim preclusion or
issue preclusion. In its memorandum in support of its motion, the Government refers to both
“the same issue” and “claim preclusion” and cites the standard for a finding of claim preclusion.
See Def.’s Mem. Supp. at 14–15. In its reply to Angelex’s opposition to the motion, however,
the Government abandons its usage of the term “claim preclusion,” instead using the term “issue
preclusion, also referred to as collateral estoppel” and citing the standard for a finding of issue
preclusion. Def.’s Reply at 6–7, ECF No. 9. “[I]t is a well-settled prudential doctrine that courts
generally will not entertain new arguments first raised in a reply brief.” Aleutian Pribilof Islands
Ass'n, Inc. v. Kempthorne, 537 F. Supp. 2d 1, 12 n.5 (D.D.C. 2008) (citing Herbert v. Nat’l
Academy of Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992)). In this case, the Court generously
interprets the Government as arguing that both claim preclusion and issue preclusion foreclose
Angelex’s claim with respect to the terms of surety the Coast Guard imposed. 6
1. Claim Preclusion
A subsequent lawsuit will be barred under claim preclusion “if there has been prior
litigation (1) involving the same claims or cause of action, (2) between the same parties or their
privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent
jurisdiction.” Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006). “[A] party invoking
claim preclusion has the burden of establishing its elements.” Athridge v. Aetna Cas. & Sur. Co.,
351 F.3d 1166, 1171 (D.C. Cir. 2003) (citing Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 158 (3d
Cir. 2001)).
6
The Court observes that Angelex appears to have made the same interpretation in its
opposition to the Government’s motion to dismiss. See, e.g., Pl.’s Opp. at 11 (discussing the
distinction between the “[t]he claims and issues” at issue before the Fourth Circuit and at issue
here).
15
An analysis of the first element is dispositive of the Government’s argument, because the
Government has failed to establish that Angelex’s Complaint involves the same claim as the
prior litigation in the Fourth Circuit. Angelex’s prior claim was an emergency petition brought
under the APA and admiralty jurisdiction that sought a court order “set[ting] an appropriate bond
for the reinstatement of the [Pappadakis’s] departure clearance.” Compl. ¶ 42. See also Angelex
I at *3. Here, by contrast, Angelex is seeking compensation as an after-the-fact remedy for the
Pappadakis’s allegedly unreasonable detention or delay pursuant to Section 1904(h) without
reference to the APA or admiralty jurisdiction. Angelex did not seek compensation or otherwise
invoke Section 1904(h) in its prior litigation. In the prior litigation, in fact, the Fourth Circuit
explicitly discussed a potential claim under Section 1904(h) as distinct from the case before it.
See Angelex II at 509 (stating that Section 1904(h) “gives Appellees a remedy, distinct from the
unauthorized injunctive relief they now seek”).
That Angelex’s current claim arises out of largely the same facts that were at issue in the
prior litigation does not change the Court’s analysis, because the current claim could not have
been brought during the prior litigation. As the Fourth Circuit stated, quoting the Government’s
argument, Section 1904(h) provides an “after-the-fact damages remedy.” Angelex II at 509.
Angelex could not have pursued a claim under Section 1904(h) in the prior litigation, which took
place during the Government’s detention of the Pappadakis. See Angelex II at 508 (stating that
Angelex’s emergency petition was “out of place and time”). Moreover, Angelex’s current claim
encompasses the Government’s conduct following the Fourth Circuit’s decision on July 22,
2013, specifically, the Government’s continued detention of the Pappadakis until the conclusion
of the criminal trial in September 2013. See, e.g., Compl. ¶ 70(G) (alleging that the detention
and delay was unreasonable because it “continued to detain the Vessel to pursue charges for
16
criminal vicarious liability in spite of clear and incontrovertible evidence that there was [sic] no
good faith facts or basis to pursue a vicarious liability prosecution”); id. ¶ 70(H) (alleging that
the detention and delay was unreasonable because the Government “had evidence that all alleged
acts were purposefully concealed from Angelex (and Kassian)”); id. ¶ 70(I) (alleging that the
detention and delay was unreasonable because the Government “refused to reconsider the
prosecution and evidence when it became clear that there was no evidence that a criminal
conviction for vicarious liability could be attained”).
Moreover, even if Angelex’s current claim could somehow be construed as involving the
same claim as the prior action, the Fourth Circuit’s decision that the district court lacked subject
matter jurisdiction to hear the claim would not have a preclusive effect under claim preclusion,
which applies only to decisions made “on the merits.” “The basic rule that dismissal for lack of
subject-matter jurisdiction does not preclude a second action on the same claim is well settled.” 7
18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure
§ 4436 (2d ed. 2015). See also Fed. R. Civ. P. 41(b) (providing that a dismissal for lack of
jurisdiction does not operate as an adjudication on the merits).
7
The preclusive effect of a dismissal for lack of subject matter jurisdiction is different with
respect to issue preclusion. See GAF Corp. v. United States, 818 F.2d 901, 912–13 (D.C. Cir.
1987) (“It is ordinarily the case that a judgment dismissing an action for lack of jurisdiction will
have no preclusive effect on the cause of action originally raised. . . . The judgment ordering
dismissal will, however, have preclusive effect as to matters actually adjudicated; it will, for
example, preclude relitigation of the precise issue of jurisdiction that led to the initial
dismissal.”); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice
and Procedure § 4436 (2d ed. 2015) (“Dismissals for want of justiciability are controlled by the
same principles as apply to want of subject-matter jurisdiction. The decision should preclude
relitigation of the very issue of justiciability actually determined, but does not preclude a second
action on the same claim if the justiciability problem can be overcome.”).
17
2. Issue Preclusion
With respect to issue preclusion, “[t]he standards for establishing the preclusive effect of
a prior holding are: First, the same issue now being raised must have been contested by the
parties and submitted for judicial determination in the prior case. Second, the issue must have
been actually and necessarily determined by a court of competent jurisdiction in that prior case.”
Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992). Like claim
preclusion, the party seeking to invoke issue preclusion bears the burden of establishing its
elements. See Lans v. Adduci Mastriani & Schaumberg L.L.P., 786 F. Supp. 2d 240, 303
(D.D.C. 2011). The Government has failed to establish that the issue raised by Angelex’s
Complaint with respect to the terms of surety imposed by the Coast Guard is identical to the
issue that was previously litigated by the parties and decided by the Fourth Circuit.
As a preliminary matter, it is somewhat difficult for the Court to identify the precise issue
that the Government argues is precluded. In the introductory section of its memorandum in
support of its motion, the Government argues that the Fourth Circuit held in Angelex II that “the
terms of vessel detention . . . . were committed to agency discretion by law” and that holding is
preclusive. Def.’s Mem. Supp. at 2. See also Def.’s Reply at 6 (“Inasmuch as the Fourth Circuit
has found the matter to be committed to agency discretion by law, that question is not on the
table.”). In the argument section of its memorandum, however, the Government argues more
broadly that “the question of what surety conditions the United States could impose before
agreeing to release the vessel has already been resolved.” Def.’s Mem. Supp. at 15. The Court
understands the Government to argue that the issue of whether the terms of a vessel’s detention
and release are committed to agency discretion by law and therefore unreviewable by a court in
any context is precluded.
18
The Fourth Circuit’s decision on this issue, however, specifically concerned whether the
district court had subject matter jurisdiction to hear the emergency petition under the APA,
which is not at issue here. The Fourth Circuit’s analysis of the issue was in the context of the
APA’s exceptions to judicial review of agency actions when “statutes preclude judicial review”
or when “agency action is committed to agency discretion by law.” Angelex II at 506 (quoting 5
U.S.C. § 701(a)(2)). The Fourth Circuit held that the district court lacked subject matter
jurisdiction under the APA to review the Coast Guard’s position during the negotiations between
the Coast Guard and Angelex of the terms of surety. See id. at 509 (“For these reasons, the Coast
Guard’s decisions regarding bond conditions with regard to the Pappadakis are unreviewable,
and the district court thereby did not possess subject matter jurisdiction under the APA.”). The
Fourth Circuit did not foreclose any sort of judicial review outside of that context. On the
contrary, immediately preceding its holding, the court explicitly left open the possibility of
judicial review through Section 1904(h) of APPS, which it characterized, quoting the
Government’s brief on appeal, as “an ‘after-the-fact damages remedy against the United States’ .
. . . distinct from the unauthorized injunctive relief [Angelex] now seek[s].” Angelex II at 509.
Angelex’s Complaint does not seek review of the Coast Guard’s decisions under the APA;
rather, Angelex’s Complaint purports to bring a claim directly under Section 1904(h) of APPS
and separate from the APA. The parties have never litigated the issue potentially presented by
this case as to whether a ship owner injured by allegedly unreasonable demands by the Coast
Guard on surety terms may bring an action under Section 1904(h) to recover compensation. 8
8
The Court observes that the Government does not argue that the Court should hold on its
own that Angelex may not bring an action directly under Section 1904(h) to recover
compensation for the Coast Guard’s allegedly unreasonable demands on the terms of surety. The
Court will not address this issue absent any argument by the Government and therefore does not
consider Angelex’s arguments in opposition to the Government’s motion that its cause of action
19
C. Reasonableness of Departure Clearance Withdrawal
The Government states that, assuming the preclusive effect of the Fourth Circuit’s
decision with respect to the terms of surety demanded by the Coast Guard as a condition of
releasing the Pappadakis, the only remaining aspect of Angelex’s claim concerns whether the
Coast Guard’s decision to request that CBP withdraw the Pappadakis’s departure clearance on
April 19, 2013 was reasonable and argues that Angelex has failed to state a facially plausible
claim that the Coast Guard did not. See Def.’s Mem. Supp. at 16–23.
Before assessing the sufficiency of Angelex’s Complaint, the Court must first address the
Government’s premise that if Angelex has failed to state a claim with respect to the withdrawal
of the Pappadakis’s departure clearance, then the Complaint should be dismissed in its entirety.
This premise is incorrect for two reasons. First, regardless of whether the Complaint has stated a
claim with respect to the withdrawal of the departure clearance, Angelex’s claim with respect to
the terms of surety demanded by the Coast Guard remains, given the Court’s holding, supra, that
the Fourth Circuit’s decision has no preclusive effect on this litigation. Second, Angelex’s claim
concerns more than the reasonableness of the initial withdrawal of the Pappadakis’s departure
clearance in April 2013 and the terms of surety demanded by the Coast Guard. Rather,
Angelex’s claim encompasses the Coast Guard’s continued detention of the Pappadakis from
April to September 2013, which the Complaint alleges was unreasonable in light of the evidence
and the circumstances. See, e.g., Compl. ¶ 70; Pl.’s Opp. at 12–13 (“Plaintiff’s complaint
specifically details the numerous unreasonable actions by the Coast Guard and government
is authorized by Section 1904(h) and ripe for determination by this Court, see Pl.’s Opp. at 7–10,
and that the Government is judicially estopped from now arguing that Angelex is not entitled to
pursue its claim because it “changed its position with respect to the availability of relief” under
Section 1904(h). Id. at 19–21.
20
amounting to unreasonable detention and delay of the Vessel, not just during the initial week of
the Coast Guard investigation in April 2013, but throughout the next five (5) months . . . .”). The
Government’s argument does not concern the remainder of these allegations, and the
Government does not argue that, as a matter of law, claims for compensation brought under
Section 1904(h) must be limited to the reasonableness of the initial withdrawal of a vessel’s
departure clearance.
The Court now turns to the issue of whether Angelex has stated a facially plausible claim
as to whether the Coast Guard’s decision to request that CBP withdraw the Pappadakis’s
departure clearance on April 19, 2013 was unreasonable under Section 1904(h) of APPS. The
Coast Guard’s relevant statutory authority derives from Section 1908(e) of APPS. Under Section
1908(e) and its regulations, the Coast Guard has the authority to refuse or revoke a ship’s
departure clearance “if reasonable cause exists to believe that the ship, its owner, operator, or
person in charge may be subject to a fine or civil penalty” under Section 1908. See 33 U.S.C. §
1908(e). The Government argues that the Coast Guard had reasonable cause to believe that the
Pappadakis, Angelex, Kassian, and the Pappadakis’s Chief Engineer were in violation of APPS
and therefore reasonably requested that CBP withdraw the Pappadakis’s departure clearance.
See Def.’s Mem. Supp. at 16–23. Angelex’s arguments in opposition are limited. It argues that
“[t]he government improperly equates ‘reasonableness’ of the delay and detention of the Vessel,
with the right of the government to investigate, pursue, and prosecute individuals and companies
for alleged criminal misconduct.” Pl.’s Opp. at 12. Angelex misses the point of the
Government’s argument, which is grounded in the text of Section 1908(e)’s grant of authority to
withdraw a ship’s departure clearance if there is reasonable cause. Though Angelex does not
flesh out its argument, Angelex appears to be arguing that the Coast Guard could correctly
21
determine that there is reasonable cause to believe that a vessel is in violation of MARPOL or
APPS and may be subject to a criminal fine or civil penalty and request that CBP withdraw the
vessel’s departure clearance as authorized by Section 1908(e) and yet still be unreasonable in
doing so under Section 1904(h). 9 Angelex provides no basis for such a tortured reading of
Section 1904(h), which, like Section 1908(e), speaks in terms of reasonableness. Nor does
Angelex offer the Court with any alternative standard for determining whether withdrawal of a
departure clearance is reasonable. The Court finds that whether the Coast Guard had reasonable
cause under Section 1908(e) is at the heart of whether the withdrawal of the Pappadakis’s
departure clearance was reasonable under Section 1904(h).
APPS does not provide a definition for “reasonable cause” for purposes of Section
1908(e). The Government argues that the term “reasonable cause” is often used interchangeably
with “reasonable suspicion” and that, in the analogous criminal context, “[r]easonable suspicion
exists when a law enforcement officer can point to ‘specific and articulable facts,’ which,
considered together with rational inferences from those facts, suggest that criminal activity ‘may
be afoot.’” Def.’s Mem. Supp. at 20–21 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). See
also Monarch Shipping Co. v. United States, Civ. No. 13-80661, 2013 WL 5741836, at *9 (S.D.
Fla. Aug. 15, 2013) (discussing, in dictum, application of a similar definition for purposes of
Section 1908(e)). The Coast Guard also appears to have considered the meaning of the term
outside the criminal context under the National Labor Relations Act. See Letter (Sept. 19, 2014),
9
Angelex’s contention may also be read as related to its only other argument in opposition
that whether the Coast Guard had reasonable cause “does not address the crux of Plaintiff’s
claim in this matter.” Pl.’s Opp. at 13–14. As discussed, supra, the Court agrees that Angelex’s
claim encompasses the Coast Guard’s continued detention of the Pappadakis from April to
September 2013 and that, therefore, the entire Complaint is not subject to dismissal solely on this
ground. The issue is, however, determinative of whether Angelex can maintain its claim with
respect to the Coast Guard’s initial withdrawal of the departure clearance.
22
Def.’s Mot. Dismiss Ex. 4, at 4 (discussing Pye v. Teamsters Local Union No. 122, 61 F.3d 1013(1st Cir. 1995)). Angelex, in its attempt to dodge the issue of reasonable cause entirely, does not
offer any standard or contest the Government’s standards.
The Court need not define here the precise contours of reasonable cause under Section
1908(e), because Angelex fails to allege in its Complaint that the Coast Guard lacked reasonable
cause—under any standard—to believe that the Pappadakis might be subject to a fine or civil
penalty for violating MARPOL or APPS. Angelex repeatedly alleges facts in its Complaint
suggesting that the Coast Guard lacked reasonable cause to believe that Angelex or Kassian were
in violation of MARPOL or APPS. See, e.g., Compl. ¶ 26 (alleging that all interviewed crew
members confirmed to the Coast Guard that, among other things, “the alleged bad acts” were
purposely hidden from Angelex, Kassian, and the Pappadakis’s Captain and not done in the
course of their employment); id. ¶ 28 (alleging that the Coast Guard requested withdrawal of the
Pappadakis’s departure clearance “[n]otwithstanding the clear absence of any evidence to
vicariously implicate Plaintiff for criminal liability”); id. ¶ 60 n.12 (alleging that the “detention
of the Vessel was unreasonable as the prosecution of Angelex was destined to fail since the
government could not meet the standard for criminal vicarious liability”). The Coast Guard,
however, did not need reasonable cause to believe that Angelex or Kassian were in violation of
MARPOL or APPS in order to initially detain the Pappadakis, because the statute specifically
provides that the Coast Guard may do so if it has reasonable cause to believe that the vessel itself
may be subject to a criminal fine or a civil penalty. 10 See 33 U.S.C. § 1908(e) (“[I]f reasonable
cause exists to believe that the ship . . . may be subject to a fine or civil penalty . . . .”). The
10
The Government nevertheless argues that the Coast Guard had reasonable cause to
believe that both Angelex and Kassian were vicariously liable. See Def.’s Mem. Supp. at 17–19.
The Court need not reach this issue.
23
statute provides that “[a] ship operated in violation” of MARPOL, APPS, or APPS regulations is
liable in rem for any criminal fine imposed under Section 1908(a) or any civil penalty assessed
under Section 1908(b), which, in turn, provide for liability for any person violating MARPOL,
APPS, or APPS regulations. 33 U.S.C. § 1908.
Here, the Coast Guard’s stated reason for requesting that CBP withdraw the Pappadakis’s
departure clearance was that the Coast Guard had collected evidence “establishing reasonable
grounds to believe” that the Pappadakis violated MARPOL and APPS. Letter (Apr. 19, 2013).
Yet the Complaint is devoid of any allegation that the Coast Guard lacked reasonable cause to
believe that the Pappadakis was operating in violation of MARPOL or APPS and might be
subject to a criminal fine or civil penalty, regardless of whether Angelex or Kassian were aware
of or vicariously liable for the violation. On the contrary, the Complaint actually alleges facts
supporting the Coast Guard’s finding of reasonable cause to believe that the Pappadakis was in
violation and might be subject to a criminal fine or civil penalty. See Compl. ¶ 15 (alleging that
the Coast Guard received a tip from a crew member informing them that the Pappadakis’s
equipment had been modified to bypass the ship’s pollution prevention equipment). Moreover,
while the Complaint references and quotes from the Coast Guard’s letter responding to its
demand for compensation, it does not make any allegations concerning the Coast Guard’s
statements in the letter that, among other things: the whistleblowing crew member provided the
Coast Guard with photographs of the modification and led investigators to it; four other crew
members confirmed to the Coast Guard “that the crew had bypassed the oily water separator and
discharged oily bilge water into the ocean at the direction of the Chief Engineer, Lambros
Katsipis”; crew members were unable to get the oily water separator to work; and the Coast
24
Guard’s examination of the Oil Record Book revealed discrepancies and incorrect entries. 11
Letter (Sept. 19, 2014), Def.’s Mot. Dismiss Ex. 4, at 2–3. Even in its opposition to the
Government’s motion to dismiss, Angelex ignores entirely the issue of whether the Coast Guard
had reasonable cause to believe that the Pappadakis was in violation of MARPOL or APPS and
might be subject to a criminal fine or civil penalty when it requested that CBP withdraw its
departure clearance. 12
The Complaint fails to allege sufficient facts that, if true, state a plausible claim that the
Coast Guard’s request that CBP withdraw the Pappadakis’s departure clearance was
unreasonable. Thus, the Complaint must be dismissed as to the withdrawal of the departure
clearance on April 19, 2013. 13
11
Although a court generally cannot consider matters beyond the pleadings at the motion to
dismiss stage, it may consider “documents attached as exhibits or incorporated by reference in
the complaint, or documents upon which the plaintiff’s complaint necessarily relies even if the
document is produced not by the plaintiff in the complaint but by the defendant in a motion to
dismiss.” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011)
(internal citations and quotations omitted).
12
The Government also argues that the Coast Guard had reasonable cause to believe that
Lambros Katsipis, the Chief Engineer of the Pappadakis, might be subject to a criminal fine or
civil penalty and that Mr. Katsipis was a “person in charge” under Section 1908(e). See Def.’s
Mem. Supp. at 16–17. The Complaint fails to allege that the Coast Guard lacked reasonable
cause to believe that Mr. Katsipis might be subject to a criminal fine or civil penalty. The Court
need not determine whether a vessel’s Chief Engineer is, by law, a “person in charge” under
Section 1908(e), because Angelex offers no response to the Government’s argument that Mr.
Katsipis was a person in charge in its opposition to the motion to dismiss.
13
In its opposition to the Government’s motion to dismiss, Angelex requests leave to
amend the Complaint “in the event this Court finds Plaintiff’s Complaint insufficient in any
way.” Pl.’s Opp. at 14–15. The Court is unable to consider Angelex’s request, given that it was
made prior to the resolution of the Government’s motion to dismiss. Moreover, Local Civil Rule
7(i) requires a party seeking leave to file an amended pleading to provide the Court with “an
original of the proposed pleading as amended.” D.D.C. Civ. R. 7(i). Angelex may file a formal
motion seeking leave to amend its Complaint pursuant to Rule 15 of the Federal Rules of Civil
Procedure and Local Civil Rule 7(i) in light of this ruling.
25
D. Angelex’s Request for Attorney’s Fees
Finally, Angelex requests that the Court award it attorney’s fees for needing to respond to
what it argues is a “frivolous motion to dismiss.” Pl.’s Opp. at 16–19. Rule 11 of the Federal
Rules of Civil Procedure, which Angelex does not reference, provides for the imposition of
sanctions against a party who makes a frivolous argument in violation of the Rule’s certification
requirements. See Fed. R. Civ. P. 11. Given that the Court grants the Government’s motion in
part, the Court finds that the Government’s motion was not frivolous and that the imposition of
sanctions would be inappropriate.
III. CONCLUSION
For the foregoing reasons, the Court will grant in part and deny in part the Government’s
Motion to Dismiss (ECF No. 6). An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: August 24, 2015 RUDOLPH CONTRERAS
United States District Judge
26