Jeong Seon Han v. Lynch

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JEONG SEON HAN, )
)
Petitioner, )
)
v. ) No. 16–cv0601 (KBJ)
)
LORETTA E. LYNCH, Attorney )
General of the United States, et al., )
)
Respondents. )
)
MEMORANDUM OPINION
Petitioner Jeong Seon Han is a Korean national who, until recently, was actively
employed as an engineer aboard a U.S.-flagged commercial fishing vessel. Han has
filed a petition for habeas corpus in this Court in which he complains that he has been
“effectively detained by the United States pending a U.S. Coast Guard investigation
into purported violations” of federal and international environmental law. (Pet. for
Habeas Corpus (“Pet.”), ECF No. 1, at 1; see also Decl. of Jeong Seon Han (“Han
Decl.”), Attach. A to Pet., ECF No. 1-1, at 2.) 1 Han contends that he has been stripped
of his liberty as a condition of an agreement that the United States and the vessel owner
executed (hereinafter referred to as the “Security Agreement”), which required the
vessel owner to “request” that certain crew members, including Han, surrender their
passports and remain within the jurisdiction of the District of Columbia pending further
investigation into suspected violations of law. (See Pet. at 1; Agreement on Security
1
Page-number citations to documents the parties have filed refer to the page numbers that the Court’s
electronic filing system assigns.
(“Sec. Agreement”), Ex. 4 to Pet., ECF No. 1-5, at 9.) Han’s habeas petition implores
this Court to order Respondents U.S. Attorney General Loretta Lynch and Paul Zukunft
(the Commandant of the U.S. Coast Guard) to release Han from his “constructive”
detention in the District of Columbia (Pet. at 3), and to “[o]rder [Han] . . . free to
return to his home in Korea” (id. at 12). However, at present, Han is no longer detained
in the District of Columbia. Han’s status has changed because, shortly after Han filed
the instant habeas petition, the U.S. government initiated serial criminal proceedings
against him—first in the District of Columbia, and thereafter in the District of Hawaii.
Han is now located in Hawaii, where a district court order restricts his freedom of
movement to the island of Oahu.
Before this Court at present is the Respondents’ Motion to Dismiss Han’s habeas
petition, which was filed following the initiation of the criminal proceedings, and which
presents a suggestion of mootness. (See Defs.’ Mot. to Dismiss (“Resp’ts’ Mot.”), ECF
No. 9, at 1112.) For the reasons explained below, this Court concludes that Han’s
habeas petition is now moot with respect to his pre-indictment detention in the District
of Columbia, and to the extent that Han’s petition can be construed to seek relief from
his current detention in Hawaii, this Court lacks jurisdiction over Han’s claim, as
district courts may only grant writs of habeas corpus “within their respective
jurisdictions.” 28 U.S.C. § 2241(a). Accordingly, the Respondents’ Motion to Dismiss
the instant habeas petition will be GRANTED.
A separate order consistent with this Memorandum Opinion shall follow.
2
I. BACKGROUND
A. Facts
On June 30, 2015, the Pacific Breeze, a U.S.-flagged purse seine fishing vessel,
arrived in Pago Pago, American Samoa to unload its catch before undergoing routine
maintenance. (See Pet. at 5.) 2 Petitioner Han had been working aboard the Pacific
Breeze as an engineer. (See id.) On July 7, 2015, United States Coast Guard personnel
boarded the Pacific Breeze while the vessel was docked in Pago Pago in order to
conduct a scheduled, annual inspection “to determine if any illegal discharges of
machinery space bilge water or other oil y waste had occurred, in violation of the
MARPOL Protocol, an international treaty implemented in the United States by the Act
to Prevent Pollution from Ships (‘APPS’).” (Resp’ts’ Mot. at 4.) 3 During the course of
this inspection, which lasted “several days and eventually involved criminal
investigators from the Coast Guard Investigative Service,” Han was not permitted to
leave the vessel. (Pet. at 56.)
The Coast Guard’s inspection revealed several “deficiencies” and other
“conditions . . . believed to be indicative of criminal violation[s] of [the] APPS[.]”
2
A purse seine vessel is a particular type of commercial fishing boat. It “employ[s] a purse seine net,
which is a specific kind of fishing net that is described as a floated and weighted encircling net that is
closed by means of a drawstring threaded thr ough rings attached to the bottom[.] Purse seine nets are
over half a mile long[.]” Pacific Ranger, LLC v. Pritzker, No. 15-cv-509, 2016 WL 5676276, at *4
(D.D.C. Sept. 30, 2016) (second alteration in original) (internal quotation marks and citation omit ted).
3
“The United States is part of an international regime called the International Convention for the
Prevention of Pollution from Ships,” United States v. Han, No. 16-cr-71, 2016 WL 4132203, at *1
(D.D.C. Aug. 3, 2016), which “is commonly known as ‘M ARPOL’ or the ‘MARPOL Protocol[,]’”
Watervale Marine Co. v. U.S. Dep’t of Homeland Sec. (“Watervale I”), 55 F. Supp. 3d 124, 128 (D.D.C.
2014). “Among other things, MARPOL prohibits vessels from discharging oily wastewater into the sea
unless it is first processed through filtration equipment, and requires that such discharges be recorded
in an oil record book that is available for inspection u pon entry into port.” Han, 2016 WL 4132203, at
*1. The APPS, which was enacted to implement MARPOL, “makes it a crime for any person to
knowingly violate MARPOL[.]” Id.
3
(Resp’ts’ Mot. at 5.) As a result of these findings, the Coast Guard detained the Pacific
Breeze for further investigation. (See Pet. at 6.) The Pacific Breeze was finally
released on September 3, 2015, after the owner of the vess el—Pacific Breeze Fisheries,
LLC—executed a Security Agreement that the Coast Guard drafted. (See id. at 7;
Pet’r’s Opp’n to Resp’ts’ Mot. (“Pet’r’s Opp’n”), ECF No. 10, at 6.) Under the terms
of this Security Agreement, the Pacific Breeze was permitted to depart American Samoa
in exchange for the vessel owner’s promise to ensure that certain crew members,
including Han, “remained within [] the jurisdiction of the U.S. District Cour t of the
District of Columbia” (Pet. at 8 (alteration in original) (internal quotation marks and
citation omitted); see also id. at 7) “during the pendency of the investigation and any
possible resulting trial” (Resp’ts’ Mot. at 5). 4
In accordance with the Security Agreement, Pacific Breeze Fisheries, LLC
transported Han and certain other crew members to Virginia on October 25, 2015. (See
Pet. at 8.) Thereafter, “[f]or nearly nine months,” Han was “housed in an apartment in
McLean, Virginia, awaiting a determination by the U.S. Department of Justice
4
This form of quid pro quo—namely, the execution of a security a greement in exchange for the release
of a detained vessel—is a common practice in the context of suspected APPS violations . See, e.g.,
Watervale Marine Co. v. U.S. Dep’t of Homeland Sec. (“Watervale II”), 807 F.3d 325, 328 (D.C. Cir.
2015) (“[T]he vessels were eventually released, but not until appellants had both posted a bond and
executed a ‘Security Agreement.’” (emphasis in original)); In re Mercator Lines Ltd., Misc. No. 11-
00024, 2011 WL 10637454, at *2 (S.D. Ala. Oct. 25, 2011) (“Pursuant to the terms of this [Agreeme nt
on Security], the Coast Guard released the vessel in exchange for the posting of $500,0000.00 surety
bonds[.]”). Such agreements, which frequently require vessel owners to ensure that certain crew
members remain within a specified jurisdiction, see Watervale I, 55 F. Supp. 3d at 131, are designed to
permit the government to further investigate potential violations of the law and then “later prosecute its
case if merited[,]” Watervale II, 807 F.3d at 328; see also id. at 331 (“Accordingly, we must assume
that holding the ships and crew until a civil or criminal proceeding was completed was reasonable.”);
Watervale I, 55 F. Supp. 3d at 148 (“[T]he Coast Guard’s argument here is that the challenged security
agreements are ‘essential’ to its investigation and prosecution of suspected MARPOL violations[.]”);
Giuseppe Bottiglieri Shipping Co. v. United States , 843 F. Supp. 2d 1241, 1244 (S.D. Ala. 2012)
(acknowledging security agreement “provisions for the eight crew members whose presence in Mobile
[Alabama] the Coast Guard requires as its APPS investigation proceeds”).
4
regarding whether it would pursue any criminal actions.” (Id.) Han filed a petition for
habeas corpus with this Court on April 1, 2016, alleging that he was being effectively
detained within the District of Columbia “without any process for nearly nine months”
pending a Coast Guard investigation into purported violations of the APPS. (Id. at 4;
see also id. at 1, 2.)
Han’s troubles did not end there. Just four days after Han submitted his habeas
petition, the U.S. government filed a criminal complaint against Han in the U.S. District
Court for the District of Columbia, charging him with violating the APPS (see Resp’ts’
Mot. at 7; Decl. of Candi Meyers (“Meyers Decl.”), Attach. to Resp’ts’ Mot., ECF No.
9-1, at 8), and on April 26, 2016, a federal grand jury indicted Han of three APPS
violations (see Resp’ts’ Mot. at 7). The district judge presiding over Han’s criminal
matter ultimately dismissed the April 26 th indictment without prejudice for improper
venue, but held its order in abeyance for ten days in order to give the government time
to file the appropriate charging documents in the District of Hawaii, where the court
concluded that venue was proper. See United States v. Han, No. 16-cr-71, 2016 WL
4132203, at *13 (D.D.C. Aug. 3, 2016) (Chutkan, J.).
Then, on August 10, 2016, the government indicted Han of the same charges in
the District of Hawaii. (See Resp’ts’ Suppl. Mem. in Supp. of Resp’ts’ Mot. (“Resp’ts’
Suppl. Mem.”), ECF No. 14, at 1; Pet’r’s Resp. to Ct.’s Min. Order (“Pet’r’s Suppl.
Mem.”), ECF No. 13, at 2; District of Hawaii Criminal Docket for case No. 16-cr-512
(“Hawaii Criminal Docket”), Ex. 1 to Pet’r’s Suppl. Mem., ECF No. 13 -1, at 3.)
Following the return of the indictment in Hawaii, counsel for both parties coordinated
Han’s transport from the District of Columbia to Hawaii. (See Resp’ts’ Reply to Pet’r’s
5
Suppl. Mem. (“Resp’ts’ Suppl. Reply”), ECF No. 16, at 3; Oct. 5, 2016 Letter from
Kenneth Nelson (“Nelson Letter”), Ex. A to Resp’ts’ Suppl. Reply, ECF No. 16-1, at 1;
Email exchange between Kenneth Nelson and Stephen Darmody (“Transport emails”),
Ex. 2 to Pet’r’s Suppl. Mem., ECF No. 13-2, at 24.) 5 On August 24, 2016, the District
Court for the District of Hawaii issued an order imposing certain conditions of release
on Han, including conditions that required Han to surrender his passport and remain on
the island of Oahu. (See Hawaii Conditions of Release, Ex. 2 to Resp’ts’ Suppl. Mem.,
ECF No. 14-2, at 12.)
Thus, notwithstanding the fact that Han originally sought relief for his ongoing
detention in the District of Columbia “pending a U.S. Coast Guard investigation into
purported violations of the [APPS]” (Pet. at 1), Han is presently located in the District
of Hawaii, where he faces criminal charges for violating the APPS, and where a court
order restricts his freedom of movement. Consequently, Han has effectively
experienced not one, but two, distinct detentions: (1) Han’s pre-indictment detention in
the District of Columbia pursuant to the Security Agreement, and (2) Han’s current
detention in Hawaii based on an indictment and a court order imposing conditions of
release.
B. Respondents’ Motion to Dismiss
The pending Motion to Dismiss Han’s habeas petition, which Respondents filed
in this Court on May 20, 2016 (after Han’s initial indictment but prior to his indictment
5
In order to avoid having Han transported to Hawaii in the custody of the U.S. Marshals, counsel for
both sides arranged a non-custodial method of transportation. (See Nelson Letter at 1; Transport emails
at 24.) Specifically, “the Security Agreement was used . . . as a mechanism to have [Han’s] employer
pay for his flight.” (Resp’ts’ Suppl. Reply at 3.)
6
in, and transport to, Hawaii), primarily addresses the pre-indictment period of
detention. Respondents argue that it was Han’s employer who required him to remain
in the District of Columbia pursuant to the Security Agreement, and thus, that “Han has
not been detained by the United States, effectively or otherwise.” (Resp’ts’ Mot. at 3.)
Respondents further maintain that, in any event, Han is not being held in violation of
his Fifth Amendment rights because a federal grand jury has returned an indictment
against him. (See id.; see also id. at 1011 (characterizing Han’s lack of illegal
detention by the United States as a problem of standing and mootness) .) In response,
Han argues that he is “in custody under or by color of the authority of the United
States” because the government directed and enforced his detention. (Pet’r’s Opp’n at
15 (emphasis in original).) Han also emphasizes that, because his detention continues
notwithstanding the subsequent indictment, his petition is not moot, and in the
alternative, he insists that his case falls within the capable of repetition yet evading
review exception to mootness. (See id. at 1520.)
On September 9, 2016, after Han was moved to Hawaii, this Court ordered the
parties to submit supplemental briefs addressing the extent to which Han’s relocation
impacted the instant matter. (See Min. Order of Sept. 9, 2016.) In its response, the
government again questioned this Court’s jurisdiction on mootness grounds, and
suggested that the Court transfer Han’s case to the District of Hawaii pursuant to 28
U.S.C. § 1404(a) in the event it concludes that the case is not moot . (See Resp’ts’
Suppl. Mem. at 15; Resp’ts’ Suppl. Reply at 1, 4.) In response, Han reiterated that his
case was not moot and that, in any event, his claim fell within the exception to
mootness for actions capable of repetition yet evading review. ( See Pet’r’s Suppl.
7
Mem. at 23; Pet’r’s Resp. to Resp’ts’ Suppl. Mem. (“Pet’r’s Suppl. Reply”), ECF No.
15, at 34.)
Respondents’ motion to dismiss Han’s habeas petition is now ripe for this
Court’s review. (See generally Resp’ts’ Mot.; Pet’r’s Opp’n; Resp’ts’ Reply to Pet’r’s
Opp’n (“Resp’ts’ Reply”), ECF No. 11.)
II. LEGAL STANDARD
The doctrines of standing, mootness, and ripeness are “[t]hree inter-related”
doctrines of justiciability that determine the “constitutional boundaries” of a court’s
jurisdiction. See Worth v. Jackson, 451 F.3d 854, 855, 857 (D.C. Cir. 2006); see also
Safari Club Int’l v. Jewell, No. 15-5170, slip op. at 5 (D.C. Cir. Dec. 6, 2016) (“To
determine whether we and the district court have Article III jurisdiction, we must
decide whether [Plaintiff] has standing and whether its claims are moot.”); Mine
Reclamation Corp. v. FERC, 30 F.3d 1519, 1522 (D.C. Cir. 1994) (“[M]ootness goes to
the jurisdiction of this court.”). Consequently, although “there is a significant
difference between determining whether a federal court has ‘jurisdiction of the subject
matter’ and determining whether a cause over which a court has subject matter
jurisdiction is ‘justiciable[,]’” Powell v. McCormack, 395 U.S. 486, 512 (1969), “[a]
motion to dismiss for mootness is properly brought under Federal Rule of Civil
Procedure 12(b)(1).” Friends of Animals v. Salazar, 670 F. Supp. 2d 7, 11 (D.D.C.
2009); see also Abu Ali v. Gonzales, 387 F. Supp. 2d 16, 17 (D.D.C. 2005) (explaining
that Rule 12(b)(1) imposes on the court an “affirmative oblig ation to ensure that it is
acting within the scope of its jurisdictional authority, which includes the obligation to
consider the possibility of mootness” (internal quotation marks and citations omitted)) ;
8
see, e.g., Fraternal Order of Police, D.C. v. Rubin, 134 F. Supp. 2d 39, 44 (D.D.C.
2001) (granting 12(b)(1) motion to dismiss on mootness grounds).
When ruling on a Rule 12(b)(1) motion, the court must “treat the complaint’s
factual allegations as true” and afford the plaintiff “the benefit of all inferences that can
be derived from the facts alleged.” Delta Air Lines, Inc. v. Export–Import Bank of U.S.,
85 F. Supp. 3d 250, 259 (D.D.C. 2015) (internal quotation marks and citation omitted).
However, those factual allegations receive “closer scrutiny” than they would in the Rule
12(b)(6) context. Id. (internal quotation marks and citation omitted). Moreover, unlike
a Rule 12(b)(6) motion, a court may look to documents outside of the complaint in
order to evaluate whether or not it has jurisdiction to entertain a claim. See Jerome
Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
A plaintiff always bears the ultimate burden of showing, by a preponderance of
the evidence, that the court has jurisdiction over his claims, see Delta Air Lines, 85 F.
Supp. 3d at 259; Muhammad v. FDIC, 751 F. Supp. 2d 114, 118 (D.D.C. 2010);
however, where mootness is at issue, “[t]he initial ‘heavy burden’ of establishing
mootness lies with the party asserting a case is moot, but the opposing party bears the
burden of showing an exception applies[.]” Honeywell Int’l v. Nuclear Regulatory
Comm’n, 628 F3d 568, 576 (D.C. Cir. 2010) (citations omitted). If the court determines
that a claim is moot because it no longer presents a live controversy, the court lacks
jurisdiction to entertain the claim, and must dismiss it. See Fed. R. Civ. P. 12(b)(1),
12(h)(3). In other words, “mootness, however it may have come about, simply deprives
[the court] of [its] power to act[.]” Spencer v. Kemna, 523 U.S. 1, 18 (1998).
9
III. ANALYSIS
In the instant case, there is no dispute that Han is no longer being detained in the
location he originally complained of (the District of Columbia) by virtue of the
mechanism he originally complained of (the Security Agreement). Instead, Han is
currently being held in Hawaii due to a criminal indictment and a court order that
imposes various conditions of release. Thus, even assuming, arguendo, that Han has
met all of the substantive requirements necessary to obtain habeas relief with respect to
either (1) his pre-indictment detention in the District of Columbia pursuant to the
Security Agreement, or (2) his current detention in Hawaii, this Court lacks jurisdiction
over Han’s habeas claims, as explained below. 6
A. Han’s Habeas Claim Regarding His Pre-Indictment Detention Is Moot
Because That Detention Has Ended, And The Capable Of Repetition
Yet Evading Review Exception To Mootness Does Not Apply
“The mootness doctrine, deriving from Article III, limits federal courts to
deciding actual, ongoing controversies.” Am. Bar Ass’n v. FTC, 636 F.3d 641, 645
(D.C. Cir. 2011); see also Abu Ali, 387 F. Supp. 2d at 18 (“Mootness is not merely a
reflection of practical considerations, it is a constitutional imperative, derived from the
enumerated powers that Article III bestows upon the federal judiciary.”). A case
6
Given the text of the applicable habeas statutes, it is not entirely clear that Han has even raised a
cognizable habeas claim with respect to either detention period. See 28 U.S.C. § 2241(c) (“The writ of
habeas corpus shall not extend to a prisoner unless —(1) He is in custody under or by color of the
authority of the United States . . . or . . . (3) He is in custody in violation of the Constitution or laws or
treaties of the United States[.]”); id. § 2242 (“Application for a writ of habeas corpus shall . . . allege
the facts concerning the applicant’s commitment or detention, the name of the person who has custody
over him and by virtue of what claim or authority, if known .”). However, this Court must address its
own jurisdiction prior to evaluating this claim on the merits. Cf. Safari Club Int’l v. Jewell, No. 15-
5170, slip op. at 5 (D.C. Cir. Dec. 6, 2016) (“The parties devote the bulk of their briefing to finality
and exhaustion, but this puts the cart b efore the horse, for we must begin with our jurisdiction.”). And
for the reasons explained below, this Court concl udes that it lacks jurisdiction over Han ’s habeas
claims because, first, Han’s pre-indictment detention has ended and no longer presents a live
controversy, and second, Han’s current detention in Hawaii exceeds the bounds of this Court’s
territorial jurisdiction.
10
becomes moot either “when the issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome.” Cty. of Los Angeles v. Davis, 440 U.S. 625,
631 (1979) (internal quotation marks and citation omitted). Put another way, “[e]ven
where a case once posed a live controversy when filed, the [mootness] doctrine requires
the Court to refrain from deciding it if events have so transpired that the decision w ill
neither presently affect the parties’ rights nor have a more -than-speculative chance of
affecting them in the future.” True the Vote, Inc. v. IRS, 831 F.3d 551, 558 (D.C. Cir.
2016) (alterations in original) (internal quotation marks and citations omi tted); see also
13B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3533
(3d ed. 2008) (“The central question . . . is constant—whether decision of a once living
dispute continues to be justified by a sufficient prospect that the d ecision will have an
impact on the parties.”).
One frequently raised (but narrow) exception to mootness occurs in a
circumstance in which the challenged action is one that is “capable of repetition, yet
evading review[.]” Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 632 (D.C.
Cir. 2002). However, as explained below, the instant case presents no such
circumstance. Even assuming that Han’s pre-indictment detention may have posed a
live controversy at the time when Han filed his habeas petition, subsequent
developments have ensured that a court decision regarding that pre-indictment detention
period will “neither presently affect the parties’ rights nor have a more -than-speculative
chance of affecting them in the future.” True the Vote, 831 F.3d at 558 (internal
quotation marks and citations omitted). Thus, Han’s habeas claims with respect to the
pre-indictment period of detention are moot.
11
1. Han’s Pre-Indictment Detention No Longer Presents A Live Issue
Han’s habeas petition alleges that he “has been effectively detained by the
United States pending a U.S. Coast Guard investigation into purported violations of the
[APPS].” (Pet. at 1.) As relevant here, the language of section 2241 of Title 28 of the
U.S. Code establishes that a valid habeas petition must make a plausible claim that the
petitioner “is in custody in violation of the Constitution or laws o r treaties of the United
States[,]” or “is in custody under or by color of the authority of the United States[.]”
28 U.S.C. §§ 2241(c)(1), (c)(3); see also Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004)
(“[L]ongstanding practice confirms that in habeas challenges to present physical
confinement—‘core challenges’—the default rule is that the proper respondent is the
warden of the facility where the prisoner is being held.” (citations omitted)). Moreover,
it is clear beyond cavil that a habeas petition becomes moot when the detention that the
petitioner is challenging is over. See United States ex rel. Lynn v. Downer, 322 U.S.
756, 756 (1944) (“Petition for writ of certiorari to the Circuit Court of Appeals for the
Second Circuit denied on the grounds that the case is moot, it appearing that petitioner
no longer is in respondent’s custody.” (citations omitted)); Rimi v. Obama, 60 F. Supp.
3d 52, 58 (D.D.C. 2014) (“[Petitioner] is neither in custody nor able to demonstrate any
cognizable collateral consequence of his prior detention at Guant ánamo, and therefore
his habeas claim remains moot.”).
This Court finds that any habeas claim that arises out of Han’s detention in the
District of Columbia under the terms of the challenged Security Agreement no longer
presents a live controversy that this Court has the power to review , because the pre-
indictment period of detention that is the target of his pending habeas petition has
12
unquestionably come to an end notwithstanding the fact that Han has not yet been
released to return to Korea. In other words, it is clear to this Court that Han is no
longer compelled to remain “within the jurisdiction of the U.S. District Court of the
District of Columbia” by virtue of the Security Agreement (Sec. Agreement at 6);
instead, he is presently restricted to the island of Oahu pursuant to a criminal
indictment and an order from the District Court for the District of Hawaii (see Hawaii
Conditions of Release at 13).
To understand why Han’s period of pre-indictment detention pursuant to the
Security Agreement is over, consider the well-established function of security
agreements in the suspected APPS-violation context. As noted above, the Coast Guard
regularly enters into standard security agreements with vessel owners in order to
facilitate the U.S. government’s investigation into suspected APPS violations. See
Watervale I, 55 F. Supp. 3d at 14849; see also supra n.4. At the conclusion of the
Coast Guard’s APPS investigation, the agency either files criminal charges, or it does
not. See Watervale II, 807 F.3d at 328; see also Angelex Ltd v. United States, 723 F.3d
500, 50304 (4th Cir. 2013); United States v. Abrogar, 459 F.3d 430, 433 (3d Cir.
2006). Consequently, with respect to the person who is the target of the APPS inquiry,
the security agreement is designed to provide for the detention of individuals up until
the point that a criminal indictment is filed; once the grand jury returns an indictment, it
is the adversarial criminal process (rather than any pre-indictment agreement between
the vessel owner and the government) that provides the means to effectuate any further
detention.
Thus, in this Court’s view, Han’s period of detention pursuant to the Security
13
Agreement ended the moment that the U.S. government indicted him. And Han has not
pointed to any provision in the challenged Security Agreement that requires his restraint
after the criminal proceedings have concluded; he only makes the bald contention that
“if the indictment is dismissed, . . . the Security Agreement will still be in place and
Mr[.] Han’s liberty will still be in the hands of ICE [and] the Coast Guard [.]” (Pet’r’s
Opp’n at 17 (internal citation omitted).) This means that a Court order addressing the
validity of Han’s pre-indictment detention pursuant to the challenged Security
Agreement would have no bearing on Han’s present rights. See True the Vote, 831 F.3d
at 558. And, therefore, Han’s habeas petition presents no more of a live controversy
than a habeas petition filed by someone who has already been unconditionally released.
See Qassim v. Bush, 466 F.3d 1073, 107476, 1078 (D.C. Cir. 2006) (granting motion
to dismiss where former Guantánamo Bay detainees had been released to Albania,
rendering appeal moot); De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990)
(district court properly denied habeas petition where petitioner had been released from
custody and was not under court supervision).
2. The Capable Of Repetition Yet Evading Review Exception To
Mootness Does Not Apply Because There Is No Reasonable
Expectation That Han Will Again Be Subjected To The Same Harm
In an effort to avoid this mootness conclusion, Han maintains that his
circumstances fit into the narrow exception to mootness for actions that are capable of
repetition yet evading review. (See Pet’r’s Opp’n at 18 (“[T]he Coast Guard’s practice
of ensuring the indefinite detention of sailors pursuant to security agreements evades
review because unless it is stopped, the government will again . . . recharacterize the
terms of the detention from one imposed by the Security Agreement to one imposed by
14
court order with the goal of avoiding judicial review of its actions altogether.”) .) As
explained below, this Court disagrees, because it finds that Han’s pre-indictment
detention does not satisfy the capable-of-repetition requirement for this exception.
“[T]he capable-of-repetition doctrine applies only in exceptional situations,
where the following two circumstances [are] simultaneously present: (1) the challenged
action [is] in its duration too short to be full y litigated prior to cessation or expiration,
and (2) there [is] a reasonable expectation that the same complaining party [will] be
subject to the same action again.” Spencer, 523 U.S. at 17 (alterations in original)
(internal quotation marks and citations omitted). 7 “Under the capable of repetition
prong, there must be [1] a ‘reasonable expectation [2] that the same complaining party
would [3] be subjected to the same action again.’” Pharmachemie, 276 F.3d at 633
(emphases in original) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). And
the “same action” requirement “generally refer[s] to particular agency policies,
regulations, guidelines, or recurrent identical agency actions.” Ralls Corp. v. Comm. on
Foreign Inv. in the U.S., 758 F.3d 296, 324 (D.C. Cir. 2014) (alteration in original)
(internal quotation marks and citation omitted).
Notably, when a court determines whether the same action will recur, the critical
inquiry is not “whether the precise historical facts that spawned the plaintiff’s claims
are likely to recur,” but rather “whether the legal wrong complained of by the plaintiff
is reasonably likely to recur.” Del Monte Fresh Produce Co. v. United States, 570 F.3d
316, 324 (D.C. Cir. 2009) (emphasis added). Thus, as a general matter, the capable of
7
As the name of the exception suggests, the first requirement is commonly referred to as the “evades
review” requirement, while the second is ofte n termed the “capable of repetition” requirement. See
Pharmachemie, 276 F.3d at 633.
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repetition prong involves a determination of whether there is a “reasonable expectation”
that the “same party” will again be subjected to the challenged legal wrong, which is an
inquiry that requires the court to assess the degree of probability of recurrence. See
13C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3533.8.1
(3d ed. 2008). Importantly, “[t]here is no set probability number that separates a
sufficient prospect of repetition from an insufficient prospect [,]” id.; “[i]t is enough . . .
that the litigant faces some likelihood of becoming involved in the same controversy in
the future.” Doe v. Sullivan, 938 F.2d 1370, 1379 (D.C. Cir. 1991) (internal quotation
marks and citations omitted)); see also Ralls, 758 F.3d at 324 (“In other words, a
controversy need only be capable of repetition, not more probable than not.” (emphasis
in original) (emphasis added; internal quotation marks and citation omitted)). But, “a
speculative possibility is not a basis for retaining jurisdiction over a moot case.” In re
Operation of the Mo. River Sys. Litig., 421 F.3d 618, 63132 (8th Cir. 2005) (internal
quotation marks and citation omitted); see also Columbian Rope Co. v. West, 142 F.3d
1313, 1317 (D.C. Cir. 1998) (rejecting exception to mootness where possibility of
recurrence was “too speculative”).
Here, Han objects to “the Coast Guard’s practice of trading the release of ships
for the liberty of sailors” (Pet’r’s Opp’n at 19), and “of detaining sailors indefinitely”
pending further investigation into suspected violations of law (id. at 16), pursuant to
security agreements that are executed with vessel owners. But even if “the Coast
Guard’s practice of trading the release of ships for the liberty of sailors is an
established and enduring one” (id. at 19), and therefore reasonably capable of
recurrence writ large, Han has not established a reasonable expectation that he will
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again be unlawfully detained by virtue of such an agreement. Han generally maintains
that serving as a sailor “is his livelihood and trade[,]” and that once he is released and
returned to sea “he would [again] be subject to the same kind of security agreement—
and the indefinite detention devoid of due process that it engenders[.]” (Id. at 20.) But
he fails to acknowledge that the security agreements he seeks to challenge arise from
the U.S. government’s suspicion of criminal wrongdoing, and he does not explain why
there is “some likelihood” that the Coast Guard will once again suspect the ship he is
working on of violations of the APPS, and that the agency will consider him to be a
target or material witness with respect to that suspected violation, such that he will
again be subjected to the Coast Guard’s allegedly unlawful detention practices.
Sullivan, 938 F.2d at 1379.
To be sure, there is some tension in the D.C. Circuit’s pronouncements regarding
the capable-of-repetition doctrine, and in particular, the likelihood of recurrence as to
the same complaining party. Compare Ralls, 758 F.3d at 325 (“[T]here is some
likelihood that [Plaintiff] will again acquire easements to project sites near security-
sensitive Government property and/or airspace given [Plaintiff’s] intention to continue
its practice of pursuing windfarm projects throughout the United States[,]” and “there is
some likelihood that [the committee] will again respond similarly in the future”
(internal quotation marks and citation omitted)), with Columbian Rope, 142 F.3d at 317(“There is no reasonable expectation that [Plaintiff] will” again be forced to compete
against an ineligible rival bidder for “contacts based on the same military specification”
because the possibility that “the government will again seek to purchase more rope
assemblies for helicopter airlift operations under the same specifications ” is “too
17
speculative”). However, in this Court’s view, the purportedly criminal character of
Han’s conduct distinguishes this case from any prior pronouncement by the D.C. Circuit
suggesting that a plaintiff may satisfy the capable of repetition exception by alleging an
intention to act similarly in the future. See, e.g., Ralls, 758 F.3d at 32425. In the
instant case, there is an added layer of uncertainty because, even accepting Han’s
contention that he plans to resume work as a sailor upon his release from the Hawaii
court order as true (see Pet’r’s Opp’n at 20), this Court is “‘unwilling to assume that
[Han] will repeat the type of misconduct that would once again place him . . . at risk
of’” another detention pending investigation into APPS violations. McBryde v. Comm.
to Review Circuit Council Conduct, 264 F.3d 52, 56 (D.C. Cir. 2001) (quoting Honig v.
Doe, 484 U.S. 305, 320 (1988)); see also Los Angeles v. Lyons, 461 U.S. 95, 105106,
108 (1983) (finding no threat that party seeking injunction barring police use of
chokeholds would be stopped again for traffic violation or other offense, or would resist
arrest if stopped); Murphy v. Hunt, 455 U.S. 478, 484 (1982) (finding no reason to
believe that party challenging denial of pre-trial bail “will once again be in a position to
demand bail”).
What is more, “[i]n estimating the likelihood of an event’s occurring in the
future, a natural starting point is how often it has occurred in the past.” Sullivan, 938
F.2d at 137677 (internal quotation marks omitted). Despite Han’s emphasis on the
Coast Guard’s broader practice of detaining sailors pursuant to security agreements (see
Pet’r’s Opp’n at 19), there is no evidence that Han himself has ever before been
detained pursuant to one such agreement. Han acknowledges that he has been “working
as the chief engineer onboard commercial vessels since approximately 1989” (Han
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Decl. at 2); yet, throughout a career spanning over 25 years, there is no evidence that
Han has ever previously been subjected to a comparable detention. Cf. Del Monte, 570
F.3d at 324, 325 (concluding that plaintiff’s injury was capable of repetition whe re
plaintiff engaged in “an ongoing commercial enterprise . . . that require[d] one -year
licenses” and offered evidence that the licensing agency had failed to conform to
mandated procedures “on five separate occasions in the past”).
This Court also rejects Han’s unsupported contention that his detention pursuant
to the Security Agreement is “capable of repetition” because the Respondents “used the
security agreement to . . . transport [Han] to Hawaii” after his criminal indictment in
the District of Columbia was dismissed for improper venue. (Pet’r’s Suppl. Reply at 2.)
The record clearly demonstrates that, after the indictment was returned in Hawaii, “Han
agreed to fly to Hawaii to respond to the criminal summons issued there[,]” a nd counsel
for both parties conferred regarding the best method of transporting Han to Hawaii.
(Resp’ts’ Suppl. Reply at 3 (emphasis added); see also Nelson Letter at 1; Transport
emails at 14.) Because the parties were motivated by a common desire to avoid
having Han transported in custody, counsel agreed to rely upon the Security Agreement
“as a mechanism to have [Han’s] employer pay for his flight.” (Resp’ts’ Suppl. Reply
at 3; see also id. at 23 (“[T]he Security Agreement was used . . . as the mechanism to
transport him to Hawaii instead of the government issuing a bench warrant for Han and
arresting him and then transporting him in custody with U.S. Marshals.”); Nelson Letter
at 1.) Thus, it is simply not the case that the Security Agreement was improperly
wielded as means of detaining Han during his transport to Hawaii in a manner that
supports any inference that “his custody [is] capable of repetition[,]” as Han seeks to
19
argue here. (Pet’r’s Suppl. Reply at 2.)
Ultimately, the likelihood that Han will be “involved in the same controversy in
the future[,]” see Sullivan, 938 F.2d at 1379 (internal quotation marks and citation
omitted), rests on a series of events, each of which is highly speculative: (1) that Han
will be employed on another vessel that Coast Guard investigators detain for suspected
violations of law; (2) that during the course of the Coast Guard’s investigation, the
inspectors will uncover evidence that somehow implicates Han in the suspected
violations; and (3) that the Coast Guard will agree with the vessel owners to condition
the vessel’s release on Han remaining within the United States pending further
investigation. This is not only “too speculative an interest upon which to base Article
III jurisdiction[,]” Columbian Rope, 142 F.3d at 1317 (citation omitted), it is also at
odds with the courts’ general “unwilling[ness] to assume that the party seeking relief
will repeat the type of misconduct that would once again place him or her at risk of
injury[,]” McBryde, 264 F.3d at 56 (internal quotation marks and citation omitted)).
Therefore, this Court concludes that there is no reasonable expectation that Han
will again by subjected to the same harm, which means that this case does not fall
within the capable of repetition yet evading review exception to mootness.
B. To The Extent That Han Seeks Relief From His Current Detention In
Hawaii Pursuant To A Court Order, This Court Lacks Jurisdiction
Over Han’s Claim
Han’s habeas petition does not fare any better if it is construed as a chal lenge to
his current detention on the island of Oahu, rather than a (now moot) challenge to his
pre-indictment detention, because this Court cannot issue a writ of habeas corpus to
remedy Han’s current detention. A federal court can only issue a writ of habeas corpus
20
if (1) the petitioner is physically confined within the court’s territorial jurisdiction, and
(2) the court has personal jurisdiction over the petitioner’s immediate custodian. See
Padilla, 542 U.S. at 444, 447. This means that, as a general matter, courts may grant
habeas relief only “within their respective jurisdictions.” 28 U.S.C. § 2241(a); see also
Stokes v. U.S. Parole Com’n, 374 F.3d 1235, 1239 (D.C. Cir. 2004) (“[I]n habeas cases
involving present physical confinement, jurisdiction lies only in one district: the district
of confinement.” (internal quotation marks and citation omitted)). Additionally,
“[b]ecause [a] writ of habeas corpus does not act upon the prisoner who seeks relief, but
upon the person who holds him in . . . custody, a court may issue the writ only if it has
jurisdiction over that person.” Id. at 123839 (second alteration in original) (internal
quotation marks and citations omitted). These two principles “[t]ogether . . . compose a
simple rule that has been consistently applied in the lower courts[:] . . . Whenever a
§ 2241 habeas petitioner seeks to challenge his present physical custody within the
United States, he should name his warden as respondent and file the petition in the
district of confinement.” Padilla, 542 U.S. at 447 (citation omitted); see also id. (“By
definition, the immediate custodian and the prisoner reside in the same district.”).
This Court lacks jurisdiction over any habeas claim that Han intends to make
regarding his current detention for the very simple reason that Han is not confined
within this Court’s territorial jurisdiction. That is, even if one assumes that Han is “in
custody” within the meaning of section 2241(c), and that Respondents Lynch and
Zukunft are Han’s custodians, Han cannot overcome the fact that his current detention
is taking place nearly 5,000 miles outside this Court’s territorial jurisdiction. See id. at
443 (explaining that the jurisdictional limitations on the Great Writ were designed “to
21
avert the inconvenient [and] potentially embarrassing possibility that every judge
anywhere [could] issue the Great Writ on behalf of applicants far distantly removed
from the courts whereon they sat” (alterations in original) (internal quotation marks and
citations omitted)). Furthermore, because the record establishes that Han was not
transferred between jurisdictions, the Supreme Court’s holding in Ex Parte Endo, 323
U.S. 283 (1944) is not implicated. See id. at 30506 (explaining that transfer of a
prisoner between districts does not automatically strip jurisdiction from a district court
that properly had habeas jurisdiction when the petition was filed). 8
In sum, any habeas claim Han may have brought in this Court regarding his
current detention cannot be entertained, because this Court lacks jurisdiction over Han’s
petition with respect to his current detention in Hawaii . See, e.g., Kahn v. Obama, No.
08-1101, 2016 WL 6238498, at *3 (D.D.C. Oct. 25, 2016) (granting motion to dismiss
habeas petition based on lack of jurisdiction); Harris v. United States, 148 F. Supp. 3d
1, 2 (D.D.C. 2015) (“[T]his Court has no jurisdiction over [ the habeas] petition, and
will dismiss this case[.]”); Rimi, 60 F. Supp. 3d at 57, 60 (granting motion to dismiss
habeas petition after concluding “[c]ourt lack[ed] subject matter jurisdiction over th[e]
moot petition”).
IV. CONCLUSION
Han’s petition is moot with respect to his pre-indictment detention in the District
of Columbia pursuant to the Security Agreement, and to the extent that Han seeks relief
from his current constructive detention in Hawaii, this Court lacks jurisdiction to afford
8
As this Court concluded above, this case does not involve a single detention period with an
intervening transfer; rather, Han experienced a period of pre-indictment detention in the District of
Columbia, followed by a second and separate detention once the government filed a criminal indictment
in Hawaii.
22
Han habeas relief. Accordingly, as set forth in the order accompanying this
Memorandum Opinion, the Respondents’ Motion to Dismiss Han’s habeas petition will
be GRANTED.
DATE: December 12, 2016 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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