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August 11, 1993

JANET RENO, Attorney General; CHRIS SALE, Acting Commissioner, Immigration and Naturalization Service; JAMES POMEROY, District Director, Immigration and Naturalization Service, Defendants.

The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 Currently before the court is the motion of plaintiff Dia Navigation Co., Ltd. ("Dia Navigation") for summary judgment, pursuant to Fed. R. Civ. P. 56, and the cross-motion of defendants Janet Reno, Attorney General (the "Attorney General"), Chris Sale, Acting Commissioner of the Immigration and Naturalization Service (the "INS"), and James Pomeroy, District Director of the INS (collectively, the "Government"), to dismiss the complaint (the "Complaint"), filed 30 March 1993, for failure to state a claim for which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). *fn1"

 For the reasons that follow, the cross-motion of the Government to dismiss the Complaint is construed as a motion for summary judgment and is granted; the motion of Dia Navigation for summary judgment is denied.


 Dia Navigation, a Cyprus corporation, is the owner of the M/V European Senator (the "Senator"), which is a time-chartered ocean liner transporting commercial cargo between various ports in Europe and ports on the East Coast of the United States. Dia 12G Statement, P 1; Complaint, PP 5, 8. One of the United States ports used by the Senator is the Port of Newark, New Jersey ("Port Newark"). Dia 12G Statement, P 1.

 On 13 February 1993, while at sea, four Romanian stowaways (the "Stowaways") were discovered aboard the Senator. *fn2" Complaint, P 10. The stowaways lacked proper documentation to enter the United States and, accordingly, were secured upon the Senator. Id. On 21 February 1992, upon arrival of the Senator at Port Newark, the Stowaways were presented to an INS inspector (the "INS Inspector"). Dia 12G Statement, P 2; Complaint, P 10. At that point, all four Stowaways requested political asylum from the INS Inspector. Dia 12G Statement, P 3; Complaint, P 10.

 Upon determination by the INS Inspector that a legitimate political asylum question was raised by the Stowaways, the charterer of the Senator, Senator Linie GmbH & Co. KG (the "Charterer"), was presented with a Form I-259 ("Form I-259") by the INS Inspector. *fn3" Dia 12G Statement, P 3; see also Complaint, Ex. A (copy of Form I-259). Pursuant to Form I-259, Dia Navigation was required to detain and pay for the Stowaways throughout the political asylum process. Dia 12G Statement, P 4 Form I-259 directed:

Pursuant to the provisions of the Immigration and Nationality Act [(the "INA")], and the Regulations issued by the Attorney General thereunder, you are directed to -- Detain [the stowaways] on board. . . . CARRIER IS RESPONSIBLE FOR THE DETENTION, TRANSPORTATION AND WELFARE OF THE ALIENS UNTIL OTHERWISE INSTRUCTED BY US INS.

 In accordance with Form I-259, Dia Navigation paid for hotel rooms, three security guards to continually watch over the Stowaways, *fn4" a translator and such accessorial detention costs as medicine, food and the like. Dia 12G Statement, P 4; Complaint, P 12. The responsibility of Dia Navigation for the Stowaways lasted for fifty-four days, until the asylum claims of the Stowaways were resolved and two of the Stowaways were deported. Complaint, P 12 & Ex. B (chronology of political asylum process for Stowaways). The total cost to Dia Navigation for detention of the Stowaways was $ 127,580.00. Dia 12G Statement, P 5; see also Complaint, Ex. C (copies of paid invoices).

 According to Dia Navigation, the INS policy is such that, had Dia Navigation refused to assume the detention costs of the Stowaways, the Senator would have been prevented from entry into or departure out of Port Newark. Dia 12G Statement, P 6; Complaint, P 13; Nixon Aff., P 4. Dia Navigation now seeks a declaratory judgment that the INS policy requiring ocean carriers to (1) detain stowaways who have applied for political asylum and (2) be responsible for the detention costs and expenses for those stowaways is unlawful and void. Complaint, P 1. Specifically, Dia Navigation seeks a judgment declaring:

(1) The Immigration User Fee Statute requires the INS to pay (from the User Fee Account] for the detention of stowaways who have applied for political asylum;
(2) The INS policy that requires ocean carriers to detain stowaways who have applied for political asylum is unlawful and void;
(3) The INS policy that requires ocean carriers to pay the detention expenses of stowaways who have applied for political asylum exceeds the statutory authority of the INS and thereby violates the Administrative Procedure Act [(the "APA"), 5 U.S.C. § 551 et seq.];
(4) The INS policy that requires ocean carriers to detain stowaways who have applied for political asylum is arbitrary and capricious in violation of the APA;
(5) The INS policy that requires ocean carriers to detain and pay for the detention of stowaways who have applied for political asylum is invalid for failure to comply with the notice and comment procedures of the APA;
(6) Defendants are liable to [Dia Navigation] for all expenses that defendants unlawfully caused [Dia Navigation] to incur for the detention of stowaways.

 Notice of Motion, filed 11 June 1993, at 1-2; see also Complaint, P 51. Dia Navigation also seeks reimbursement for the costs it was required to expend on the Stowaways in this case. Id.


 A. Motion of Government to Dismiss the Complaint

 1. Construing 12(b)(6) Motion as a Motion for Summary Judgment

 Trial courts enjoy substantial procedural flexibility in handling Rule 12(b) motions. Berardi v. Swanson Mem. Lodge No. 48 of Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir. 1990) (citing Land v. Dollar, 330 U.S. 731, 735 n.4, 91 L. Ed. 1209, 67 S. Ct. 1009 (1947)). Specifically, Fed. R. Civ. P. 12(b) provides:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and the parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

  Id.; see also Jones v. Automobile Ins. Co., 917 F.2d 1528, 1531-32 (11th Cir. 1990) ("it is within judge's discretion to decide whether to consider matters outside of pleadings that are presented to the court"); Allison on Behalf of General Motors Corp. v. General Motors Corp., 604 F. Supp. 1106, 1119 (D.Del.) (same), aff'd, 782 F.2d 1026 (3d Cir. 1985).

 In this case, Dia Navigation has presented arguments and materials outside of the Complaint which, for the sake of completeness, must be considered in interpreting the INA and in reviewing the INS policy of requiring carriers to bear the detention costs for stowaways claiming political asylum. Accordingly, the motion to dismiss is treated as a motion for summary judgment. *fn5"

 2. Standard of Summary Judgment Review

 To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The present task is to determine whether disputed issues of fact exist, but a district court may not resolve factual disputes in a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Desvi, Inc. v. Continental Ins. Co., 968 F.2d 307, 308 (3d Cir. 1992) ("threshold inquiry is whether there are 'genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party'") (citations omitted); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992) ("We apply the test . . . (1) Is there no genuine issue of material fact and (2) is one party entitled to judgment as a matter of law?") (quotations omitted); Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991) ("summary judgment is inappropriate when a conflict of a material fact is present in the record"); Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991) (summary judgment may not be granted "if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed").

 All evidence submitted must be viewed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Williams v. New Castle County, 970 F.2d 1260, 1264 (3d Cir. 1992); Boyle v. Governor's Veterans Outreach & Assistance Center, 925 F.2d 71, 75 (3d Cir. 1991); Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990); Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989). "Any 'unexplained gaps' in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment." Ingersoll-Rand Fin. Corp. v. Anderson, 921 F.2d 497, 502 (3d Cir. 1990) (quoting O'Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir. 1989)).

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial."

 Matsushita, 475 U.S. at 586-87 (emphasis in original, citations and footnotes omitted). In other words, the inquiry involves determining "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990) (quoting Anderson, 477 U.S. at 251-52), cert. denied sub nom., Roselle v. Brown, 115 L. Ed. 2d 997, 111 S. Ct. 2827 (1991); see also Gray, 957 F.2d at 1078 ("there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party").

 The Supreme Court elaborated on the summary judgment standard in Anderson: "If the evidence [submitted by a party opposing summary judgment] is merely colorable, or is not significantly probative, summary judgment may be granted." 477 U.S. at 249-50 (citations omitted). The Supreme Court went on to note in Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986): "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose." Id. at 323-24 (footnote omitted); see also Carlson v. Arnot-Ogden Memorial Hosp., 918 F.2d 411, 413 (3d Cir. 1990) ("nonmoving party must adduce more than a mere scintilla of evidence in its favor"); Maguire v. Hughes Aircraft Corp., 912 F.2d 67, 72 (3d Cir. 1990) (non-moving party may not rest upon mere allegations); Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (neither unsupported allegations in pleadings and memoranda of law nor conclusory allegations in affidavits will establish genuine issue of material fact); Aronow Roofing Co. v. Gilbane Building Co., 902 F.2d 1127, 1128 (3d Cir. 1990) ("summary judgment will be granted where the non-moving party fails to 'establish the existence' of an element essential to the case").

 The dispute between the parties in the present case rests primarily upon conflicting interpretations of the INA and upon the resulting INS policy with regard to stowaways. Because the parties essentially agree on the facts relevant to this dispute, the case is a particularly appropriate candidate for summary judgment analysis. Continental Ins. Co. v. Bodie, 682 F.2d 436, 439 (3d Cir. 1982); United States v. 294 Various Gambling Devices, 718 F. Supp. 1236, 1242 (W.D.Pa. 1989); see also Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.) ("summary judgment proper where facts are undisputed"), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985); Peterson v. Lehigh Valley Dist. Council, etc., 676 F.2d 81, 84 (3d Cir. 1982) ("summary judgment is a useful procedure when there is no dispute about critical facts and it serves to eliminate expense and delay of unnecessary trials"); Crain v. Board of Police Comm'rs of Metro. Police Dep't, 920 F.2d 1402, 1405-06 (8th Cir. 1990) (when "unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate").

 3. The INA Statutory Scheme

 The INA provides that all aliens arriving in the United States are subject to examination and inspection by an INS inspector to determine whether they are permitted to enter the country. See 8 U.S.C. §§ 1224-25; 8 C.F.R. § 235.3. If, upon preliminary inspection, the INS inspector finds that an alien falls into an "excludable" category, the alien is generally subject to an exclusion hearing before a special inquiry officer, i.e. an immigration judge, who determines his or her immigration status. *fn6" See 8 U.S.C. §§ 1225-26.

 Section 212(a) of the INA, 8 U.S.C. § 1182(a), describes the categories of aliens considered to be "excludable" aliens. See id.; see also Graham v. Immigration and Naturalization Serv., No. 92-3610, 998 F.2d 194, 1993 U.S. App. LEXIS 17172, *3 (3d Cir. 12 July 1993). An alien is considered excludable, inter alia, if he or she lacks proper documentation, suffers from a communicable disease, has committed certain crimes, may be a security threat, may become a public charge or may be an illegal entrant or immigration violator. See id., § 1182(a)(1)-(6). With regard to this final category, Section 212(a)(6)(D), 8 U.S.C. § 1182(a)(6)(D), specifically provides that "any alien who is a stowaway is excludable." *fn7" Id. (emphasis added).

 Although stowaways are excludable aliens, stowaways are considered to be a "disfavored" category of aliens. *fn8" See Yiu Sing Chun v. Sava, 708 F.2d 869, 875 n.21 (2d Cir. 1983); Fang-Sui Yau v. Gustafson, 623 F. Supp. 1515, 1519, 1523 (C.D.Cal. 1985); Medina, 589 F. Supp. 1028, 1036. For this reason, Section 273(d) of the INA, 8 U.S.C. § 1323(d), provides that, once an alien is determined by the INS inspector to be a stowaway, the stowaway -- unlike other classes of excludable aliens -- has no right to an exclusion hearing by a special inquiry officer or to an appeal to the Attorney General. ...

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