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Duckworth v. United States

April 15, 2010

GREGORY N. DUCKWORTH, F/V REAPER, INC., AND F/V TWISTER, INC., PLAINTIFFS,
v.
THE UNITED STATES OF AMERICA, ACTING BY AND THROUGH GARY LOCKE, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE, THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, AND THE NATIONAL MARINE FISHERIES SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiffs Gregory N. Duckworth, F/V Reaper, Inc., and F/V Twister, Inc. (collectively, "Plaintiffs") bring this action against Defendants Gary Locke, in his official capacity as the Secretary of the United States Department of Commerce, the National Oceanic and Atmospheric Administration ("NOAA"), and the National Marine Fisheries Service ("NMFS")*fn1 (collectively, "Defendants") seeking to appeal a final decision of the Secretary regarding Notices of Violation and Assessment ("NOVAs") and Notices of Permit Sanction ("NOPSs") issued to Plaintiffs for alleged violations of the Magnuson-Stevens Fisher Conservation and Management Act ("Magnuson-Stevens Act" or "MSA"), 16 U.S.C. §§ 1801-82. An administrative law judge held a hearing on the matter and issued an initial decision and order affirming the violations, which was modified in a final decision by the NOAA Administrator acting on behalf of the Secretary. Presently pending before the Court are the parties' cross-motions for summary judgment. In addition, Plaintiffs have recently filed a [28] Motion for a Temporary Restraining Order and Preliminary Injunction Seeking to Stay Judicial Decision-Making and to Stay Enforcement Proceedings pending further investigation into Defendants' alleged misconduct.*fn2 For the reasons explained below, the Court shall GRANT Defendants' [24] Motion for Summary Judgment, DENY Plaintiffs' [22] Motion for Summary Judgment, and DENY Plaintiffs' [28] Motion for a Temporary Restraining Order and Preliminary Injunction.

I. BACKGROUND

Plaintiff Gregory Duckworth is a commercial fisherman who lives in Rhode Island. At the time of the events giving rise to the alleged violations at issue here, Duckworth was the sole owner of the fishing vessels Reaper and Twister, which he managed through wholly-owned corporations F/V Reaper, Inc., and F/V Twister, Inc., respectively. On August 2, 2007, NOAA issued Notices of Violation and Assessment and Notices of Permit Sanction against Plaintiffs alleging nine violations of the Magnuson-Stevens Act, eight of which are the subject of this appeal.*fn3 The first of the eight counts at issue pertains to a claim that Duckworth and F/V Twister, Inc. made a false statement in connection with a fishing permit application in violation of 50 C.F.R. § 648.14 (the "False Statement Case"). The remaining seven counts pertain to allegations that Duckworth and F/V Reaper, Inc. unlawfully fished for lobster by leaving lobster traps at sea after their fishing permits were suspended due to a prior federal fisheries violation (the "Lobster Traps Case").

Plaintiffs requested an administrative hearing on the alleged violations, and a three-day hearing was commenced in Boston, Massachusetts, on May 6, 2008. See Admin. Record ("AR") Ex. 58 (Initial Decision and Order) at 3. During the hearing, Defendants presented testimony from eleven witnesses and introduced forty-nine exhibits; Plaintiffs offered testimony from four witnesses and introduced seventeen exhibits into evidence. See id. at 3-4. The case was heard by Administrative Law Judge ("ALJ") Michael Devine, who issued an Initial Decision and Order on October 6, 2008, finding that NOAA had established by a preponderance of reliable and credible evidence that Plaintiffs had violated federal fisheries laws and regulations by submitting a false statement in a permit application and by fishing for lobsters without a valid permit. See id. at 4. On November 24, 2009, the NOAA Administrator issued an order affirming the violations but modifying the ALJ's initial decision regarding the sanctions and penalties imposed. See AR Ex. 79 (Final Decision). The final decision of the agency is to impose a $50,000 fine for both the False Statement Case and the Lobster Traps Case and to suspend Plaintiffs' operating and vessel permits for a period of 48 months. See id.

The facts surrounding Plaintiffs' alleged violations are largely undisputed. The facts described below are derived from the evidence presented at the administrative hearing, the administrative record, and the parties' submissions to this Court.

A. The False Statement Case

Defendants issued a NOVA and NOPS against Plaintiffs Duckworth and F/V Twister, Inc. for making a false statement in the process of applying for a permit by submitting an altered "Certificate of Documentation" for the Twister. The deadline for Duckworth to renew his 2005 fishing permits for the Twister was May 1, 2006. Defs.' Stmt.*fn4 ¶ 1. In order to renew his fishing permits, Duckworth was required to submit, inter alia, a "current copy of the vessel's current USCG [U.S. Coast Guard] documentation." See 50 C.F.R. § 648.4(c)(2)(i) (2006).*fn5 A new Certificate of Documentation ("CD") had recently been issued for the Twister, but Duckworth had not yet received a physical copy of the new CD from the Coast Guard's National Vessel Documentation Center. Defs.' Stmt. ¶ 3. Apparently anxious about missing the approaching deadline, Duckworth went ahead and submitted his application package on April 24, 2006. Id. ¶ 4. Because he did not have the new CD for the Twister, Duckworth altered an electronic copy of an old CD for the Twister to include the current information and submitted the altered CD with his permit application. Id. ¶ 5. Specifically, Duckworth modified the CD to identify the correct corporate owner, change the spelling of a street name, and change the date of issuance and expiration date to reflect the information for the new CD. Pls.' Stmt. ¶ 10. Duckworth obtained the current information by telephone from the National Vessel Documentation Center.

See AR Ex. 81 (Admin. Hr'g Tr.) at 257. Duckworth testified at the hearing that he submitted a cover letter along with his application describing the altered CD as a "simulated sample draft" of the new documentation. Defs.' Stmt. ¶ 5; AR Ex. 85-H (Resp. Hr'g Ex. H). One version of this cover letter was introduced into evidence at the hearing as Respondent's Exhibit H. The document is unsigned and bears a date stamp reading "RECEIVED BY . . . PERMITS" with the date April 24, 2006, in the middle. See AR Ex. 85-H.

Defendants received Duckworth's permit application on April 24, 2006. Defs.' Stmt. ¶ 6. At the hearing, Ms. Pamela Thames, who initially reviewed Duckworth's application, and her supervisor, Mr. Ethan Hawes, both testified that when the permit office receives an application, it is immediately date-stamped, stapled together, placed in a processing bin, and remains intact (i.e., never separated) throughout the entire review process. Id. Ms. Thames and Mr. Hawes also testified that if an application is incomplete, the permit office makes a copy for its files, and then returns the original package in its entirety to the applicant. Id. Both Ms. Thames and Mr. Hawes testified that they did not see any cover letter in Duckworth's application package and stated that if such a letter existed, they would have kept a copy of it for their records pursuant to standard office procedure. Id. ¶ 7. Upon examining Duckworth's application, Ms. Thames noticed several oddities with the CD that was enclosed, such as an unusual font type and size and the processing initials "RAJ," which were the same initials included on a previous CD submitted for the Twister. See AR Ex. 81 (Admin. Hr'g Tr.) at 195-96, 205-06, 301-05. Ms. Thames brought the application to the attention of Mr. Hawes, and they called the Coast Guard to inquire about the CD and when it was issued. See id. at 194-98. The Coast Guard informed them that no such document with processing initials "RAJ" and an expiration date of April 30, 2007, existed. Id. at 198.

Because Duckworth's application was incomplete, the NMFS permit office returned the entire package to him. Defs.' Stmt. ¶ 8. The permit office included a cover letter indicating that the CD did not appear to be a copy of the current documentation for the Twister. See AR Ex. 84-25 (4/27/2006 Letter from Northeast Permit Operations to Duckworth). At the hearing, Duckworth testified that he was not sure if his explanatory cover letter regarding the altered CD was returned to him with the rest of his application. See AR Ex. 81 (Admin. Hr'g Tr.) at 271. Duckworth telephoned Mr. Hawes a few days after receiving the returned application and informed him that he had received the new CD from the Coast Guard. Id. Duckworth then resubmitted his initial application with the new CD, which was received in the mail by the permit office and date-stamped on May 1, 2006, the deadline for submitting a renewal application. Defs.' Stmt. ¶ 8; 50 C.F.R. § 648.4(a)(1)(i)(B). NMFS deemed him to be in compliance and processed his permit application.

On May 11, 2006, Special Agents Todd Nickerson and Sean Eusebio from NOAA went to speak to Duckworth about his permit application. Defs.' Stmt. ¶ 9. The agents explained to Duckworth that the CD he originally submitted looked suspicious and asked him why the altered certificate was submitted. Id. Duckworth first replied that his stepdaughter was playing with the scanner and may have accidentally changed certain fields on the certificate. Id. ¶ 10. Duckworth further claimed he was not aware of the change and he did not know how the form was submitted with his initial application package. Id. Upon further questioning, Duckworth changed his explanation to state that while changes were made on a scanner by his stepdaughter, the changes were made at his direction. Id. ¶ 11. Duckworth also testified at the hearing that he sent a copy of the explanatory cover letter he submitted with his initial application to Agent Nickerson after their conversation. Id. ¶ 12; AR Ex. 85-I. A copy of this forwarded letter was introduced into evidence at the hearing as Respondent's Exhibit I. The document is unsigned, bears no date stamp, and contains a footer indicating that it was sent to Agent Nickerson by certified mail on August 3, 2006. See AR Ex. 85-I.

B. The Lobster Traps Case

In 2004, in an earlier enforcement case by Defendants, Duckworth was found liable for unlawfully catching and possessing monkfish in federal waters and was assessed a monetary penalty of $50,000. Defs.' Stmt. ¶ 14. Duckworth was required to pay the civil penalty on or before August 1, 2006. Id. Duckworth was on notice that if the fine was not paid in full (or a mutually acceptable settlement reached) by August 1, 2006, his operator and vessel permits would be sanctioned and he would not be permitted to fish for federally regulated species. Defs.' Stmt. ¶ 15. Duckworth was unable to reach a settlement or pay his fine by the August 1, 2006, deadline, and the permit sanctions became effective on that date, leaving Duckworth and Plaintiff F/V Reaper, Inc. without valid permits. Id. ¶¶ 17-18, 20.

In late July, before the permits were sanctioned, Duckworth set approximately 800 lobster traps in the Exclusive Economic Zone ("EEZ").*fn6 Defs.' Stmt. ¶ 16. Under federal fisheries regulations, all vessels fishing for American lobsters in the EEZ must hold a valid permit. Id. ¶ 19. On August 7, 2006, Special Agents Troy Audyatis and Kevin Flanagan went to collect Duckworth's fishing and operator permits, but he told them that he was too busy and would not talk to them. Defs.' Stmt. ¶ 22. Later that day, the agents learned from an informant that Duckworth was still fishing in the EEZ. Id. ¶ 23. At the hearing, Duckworth testified that he mailed Defendants a letter on August 7, 2006, giving Defendants notice that he had left 800 lobster traps deployed in the EEZ. Id. ¶ 21. A copy of this letter was introduced into evidence as Respondent's Exhibit M. See AR Ex. 85-M. The letter was not addressed to any particular individual or specific department or office, but rather to "NMFS."Id.

Between August 9, 2006, and August 24, 2006, the agents investigated further and conducted operations to locate, haul, and seize Duckworth's fixed gear deployed in the EEZ. Defs.' Stmt. ¶ 24. During this time, Defendants recovered 268 lobster traps with identification tags belonging to Duckworth. Id. Some of the recovered lobster traps were freshly baited and other traps contained approximately 270 live lobsters which were removed and returned to sea. Id. On August 22, 2006, the agents were finally able to meet with Duckworth and collect his vessel and operator permits. Id. ¶ 25. On October 2, 2006, the agents returned to Duckworth's home, informed him that they had received information that he had been fishing in the EEZ, and asked for his trap tags to account for his equipment. Id. ¶ 26. Duckworth then told the agents that he had 800 lobster traps deployed in the EEZ and further indicated that his brother, Eddy Duckworth, had conducted "buoy checks" on his gear to ensure that the traps were still set and in their present location. Id. The agents told Duckworth that Defendants had recently hauled and seized 268 of his traps and asked Duckworth to explain the presence of fresh bait. Id. Duckworth grew angry and demanded that the agents leave his property. Id.

On October 5, 2006, Special Agent Audyatis called Duckworth and again requested that he produce his lobster trap tags and inquired as to the location of the lobster traps. Defs.' Stmt. ¶ 27. On October 12, 2006, Duckworth drove to Agent Audyatis's office and delivered the trap tags. Id. ¶ 28. Duckworth agreed to help Defendants locate the lobster trap gear in the EEZ. Id. ¶ 29. On October 19, 2006, Defendants recovered several strings of lobster gear in the EEZ with the help of Duckworth. Id. ¶ 30. On November 6, 2006, an additional string of traps was recovered. Id. ¶ 31. Defendants recovered approximately 462 of the 800 lobster traps owned by Duckworth. Id. ¶ 32.

By November 15, 2006, Duckworth had paid the remainder of his $50,000 fine (with interest) and was legally permitted to resume fishing in the EEZ. See AR Ex. 81 (Admin. Hr'g Tr.) at 367-68, 406, 408.

C. The ALJ's Decision

Following a three-day hearing and extensive briefing from the parties, the ALJ issued an Initial Decision and Order with findings of fact and conclusions of law. The ALJ found that, given the numerous discrepancies found in Duckworth's testimony at the hearing, his statements regarding the explanatory cover letter allegedly sent with his permit application were not credible. See AR Ex. 58 (Initial Decision and Order) at 21. Specifically, the ALJ found that Duckworth's testimony that there were two versions of the cover letter, one with and one without a date stamp from the permits office, was not credible. See id. The ALJ also discredited Duckworth's testimony concerning the forwarding of the explanatory cover letter to Special Agent Nickerson because it was allegedly sent on August 3, 2006, several months after their initial conversation. See Defs.' Stmt. ¶ 13. Moreover, the ALJ deemed the testimony of the permit office personnel regarding their handling of Duckworth's application and their office procedures to be credible. See AR Ex. 58 (Initial Decision and Order) at 21. The ALJ found that Duckworth had intentionally forged a document with his permit application, and the law required him to submit an authentic copy of the current Certificate of Documentation. See id. at 20. Accordingly, the ALJ concluded that NOAA established by a preponderance of the evidence that Duckworth and F/V Twister, Inc. submitted a false statement when they included an altered document in a permit application in violation of 50 C.F.R. §§ 648.14(a)(3), 648.4(c)(2)(i), and 648.14(a)(79).

The ALJ also deemed Duckworth's testimony regarding the August 7, 2006, letter informing Defendants of the lobster traps at sea to be not credible. See AR Ex. 58 (Initial Decision and Order) at 21. The ALJ noted that Duckworth had multiple direct contacts with NMFS agents and never asserted the existence of such a letter. See id. Moreover, the evidence produced by Duckworth at the hearing showed only that he had mailed some type of document to Defendants' general address on August 7, 2006. See id. at 39. An NMFS official testified that his office received several trip reports from Duckworth on August 7, 2006, but he did not recall ever seeing a copy of the alleged letter, which as a matter of policy, would have been forwarded to him for review. See id. The ALJ heard testimony regarding NOAA's document intake procedures, which he deemed credible. See id. at 39-40. The ALJ concluded that Duckworth's testimony that he mailed NMFS a letter regarding his 800 lobster traps on August 7, 2006, was not credible. Id. at 40. The ALJ further concluded that the manner in which Duckworth attempted to send it would render any such letter insufficient to constitute proper notice of the existence of traps in light of Duckworth's more direct involvement with enforcement agents and the NOAA General Counsel's Office during this time period. See id.at 40. Accordingly, the ALJ found that NOAA had established by a preponderance of the evidence that Duckworth and F/V Reaper, Inc. unlawfully fished for lobster by leaving their traps in the EEZ without a valid permit in violation of 50 C.F.R. §§ 697.4(a), 697.5(a), and 697.7(c)(1)(xxvi).

The ALJ weighed the factors to be considered in deciding an appropriate penalty under the MSA and its regulations. See AR Ex. 58 (Initial Decision and Order) at 40-44. For the False Statement Case, the ALJ found the sanctions proposed by Defendants-a civil penalty of $130,000 and a revocation of operator and vessel permits for Duckworth and F/V Twister, Inc.-to be appropriate. Id. at 41. The ALJ deemed deliberate forgery of documentation to be a serious matter that undermined federal fisheries regulations and that harsh sanctions were necessary to deter unlawful conduct. Id. at 41-42. The ALJ also found Defendants' proposed sanctions for the Lobster Traps Case-a $910,000 civil penalty against Duckworth and F/V Reaper, Inc. and a revocation of operator and vessel permits-to be appropriate. Id. at 42. The ALJ found that Duckworth's conduct was deliberate and that Duckworth had a history of prior offenses that justified a severe sanction. Id. at 42-43. The ALJ also rejected Plaintiffs' argument that the sanctions should be reduced due to an inability to pay, finding that Duckworth had sold his fishing vessels to family members at substantial discounts, suggesting he was trying to shield his assets. Id. at 43-44.

D. Final Agency Decision

Plaintiffs submitted a discretionary petition to the NOAA Administrator seeking review of the ALJ's decision. See AR Ex. 59 (Petition for Reconsideration). On April 1, 2009, the NOAA Administrator issued an Order granting in part and denying in part Plaintiffs' petition for review, asking the parties to address whether the fines and permit sanctions imposed by the ALJ ...


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