Yacubian v. United States
952 F. Supp. 2d 334
D. Mass.2013Background
- Yacubian, a scallop fisherman and owner of the F/V Independence, was issued a NOVA and NOPS by NOAA Enforcement Attorney (EA) Charles Juliand in 2000 assessing large fines and revoking permits; plaintiff requested an administrative hearing.
- An ALJ initially imposed the NOVA/NOPS; on appeal the district court vacated the false-statement liability and found the penalties excessive, remanding for reconsideration of penalties.
- On remand NOAA reinstated the NOVA/NOPS; EA Juliand allegedly blocked three attempts by Yacubian to sell his vessel and pressured him into a settlement in 2005 with penalties larger than prior assessments and NOAA’s penalty schedule.
- Several years later the OIG investigated NOAA prosecutions and Special Master Swartwood (2011) found NOAA coerced settlements, identified Yacubian’s case, and reported improper conduct and improper pressure on a witness.
- Yacubian presented FTCA claims for malicious prosecution and abuse of process in 2012; the Coast Guard and Department of Commerce denied/failed to timely respond, and Yacubian sued the United States in July 2012.
- The government moved to dismiss under Rule 12(b)(1) and 12(b)(6); the court allowed the motion, holding claims time‑barred and alternatively failing to plead that any investigative or law‑enforcement officer instituted proceedings or used process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual / Statute of limitations | Claims did not accrue until Special Master report (Apr 2011) revealed malice and abuse; therefore filing in 2012 was timely | Claims accrued no later than the 2005 settlement; plaintiff knew injury and government’s role then; 2‑year FTCA filing rule bars suit | Claims accrued by June 27, 2005; plaintiff’s 2012 administrative presentation was untimely; discovery rule does not save the claim; dismissed as time‑barred |
| Discovery rule scope | Accrual requires knowledge of all elements (including malice); Special Master report supplied missing element | Accrual requires knowledge of injury and causal connection; plaintiff had sufficient facts pre‑2011 to infer malice/ulterior purpose | Even under plaintiff’s broader test, plaintiff had sufficient facts pre‑2005 to infer malice/ulterior purpose; discovery rule does not extend accrual beyond 2005 |
| Intentional‑torts exception re: NOAA EAs (Juliand, MacDonald) | EAs’ conduct can form basis for FTCA malicious prosecution/abuse claims | EAs are prosecutors not "investigative or law enforcement officers" under 28 U.S.C. § 2680(h); thus intentional‑torts exception bars FTCA liability for their conduct | EAs lacked authority to search, seize, or arrest; prosecutors do not qualify as investigative or law‑enforcement officers; claims based on Juliand/MacDonald dismissed under § 2680(h) |
| Institution/use of process by investigative officers (Brown, Mooradian, SAC Cohen, others) | Named officers were "involved" and pressured witnesses, thereby instituting or using process | Plaintiff failed to allege any investigative or law‑enforcement officer actually instituted proceedings, induced the EA to issue NOVA/NOPS, or caused court papers to issue | Plaintiff did not plausibly allege that any investigative or law‑enforcement officer instituted proceedings or used process; alternate ground for dismissal |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (court must accept well‑pleaded facts and draw reasonable inferences)
- Limone v. United States, 579 F.3d 79 (elements of malicious prosecution and continuance theory)
- Donahue v. United States, 634 F.3d 615 (FTCA accrual and discovery‑rule guidance)
- Correllas v. Viveiros, 410 Mass. 314 (Massachusetts law on malicious prosecution elements)
- Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387 (Massachusetts abuse of process definition)