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Gregory N. Duckworth, F/V Reaper, Inc., and F/V Twister, Inc v. the United States of America

September 6, 2011

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") brought 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 and Notices of Permit Sanction issued to Plaintiffs for alleged violations of the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act" or "MSA"), 16 U.S.C. §§ 1801-82. On April 15, 2010, the Court granted Defendants' motion for summary judgment. Plaintiffs appealed, and the Court of Appeals affirmed the Court's judgment on April 21, 2011. Presently pending before the Court is Plaintiffs' [35] Motions Pursuant to Rules 60(b) and 62.1(a) Pleads for Relief from a Judgment and Order [sic], which was filed during the pendency of the appeal. Now that the Court of Appeals has issued the mandate, Plaintiffs' request for relief is not barred by a pending appeal, and therefore there is no need for an indicative ruling pursuant to Rule 62.1. Accordingly, the Court shall consider Plaintiffs' motion pursuant to Rule 60(b).

Plaintiffs contend that the Court should set aside its prior judgment based on evidence published by the Department of Commerce Office of Inspector General ("OIG") in a final report issued on September 23, 2010 regarding NOAA's fisheries enforcement programs and operations. However, for the reasons explained below, the Court finds that the OIG's final report does not provide a valid basis for the Court to set aside its judgment. Accordingly, the Court shall DENY Plaintiffs' Rule 60(b) motion.

I. BACKGROUND

Most of the facts relevant to Plaintiffs' present motion were laid out by the Court in its summary judgment opinion. See Duckworth v. United States ex rel. Locke,705 F. Supp. 2d 30, 34-39 (D.D.C. 2010). The Court assumes familiarity with that opinion here. For background purposes, the Court shall briefly recite the facts most relevant to the pending motion.

A. Factual Background

Plaintiff Gregory Duckworth ("Duckworth") is a commercial fisherman who lives in Rhode Island. At the time of the events giving rise to the alleged violations at issue, 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 ("NOVAs") and Notices of Permit Sanction ("NOPSs") against Plaintiffs alleging nine violations of the Magnuson-Stevens Act, eight of which were the subject of this appeal. The first of the eight counts at issue pertained 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 pertained 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. 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. 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. The ALJ weighed the factors to be considered in deciding an appropriate penalty under the MSA and its regulations, and he ultimately adopted 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. for the False Statement Case and a civil penalty of $910,000 and a revocation of operator and vessel permits for Duckworth and F/V Reaper, Inc. for the Lobster Traps Case.

Plaintiffs submitted a discretionary petition to the NOAA Administrator seeking review of the ALJ's decision. On November 24, 2009, NOAA Administrator Jane Lubchenco issued an order affirming the violations but modifying the ALJ's initial decision regarding the sanctions and penalties imposed. After considering Plaintiffs' ability to pay and the magnitude of the offenses, the Administrator reduced the monetary penalty to $50,000 for the False Statement Case and $50,000 for the Lobster Traps Case. The Administrator also reduced the permit revocations imposed by the ALJ to permit suspensions for a period of 48 months. The Administrator's ruling constituted the final agency action.

B. Procedural Background

This Court reviewed the Administrator's decision to determine whether it was supported by substantial evidence pursuant to 16 U.S.C. § 1858(b). The Court held that the ALJ's determination that Plaintiffs made a false statement and fished for lobster without a permit in violation of MSA regulations was supported by substantial evidence. See 705 F. Supp. 2d at 42-48. The Court also held that the penalties imposed by the Administrator were not excessive or in violation of the MSA, its regulations, or the Eighth Amendment to the United States Constitution. Id. at 48-50. The Court noted that the fines imposed were well within the range allowed by the Magnuson-Stevens Act, which allows civil penalties up to $130,000 for each violation. Id. at 48. The Court also noted that both the ALJ and the Administrator had enumerated reasons why the record supported a substantial fine, viz., that Duckworth intentionally forged official U.S. Coast Guard documentation for the purpose of obtaining a permit renewal, intentionally tried to circumvent the law by deploying lobster gear while permit sanctions were in effect, and had a record of prior offenses that demonstrated a "cavalier attitude toward the agency's regulations and enforcement processes." Id. at 49. The Court held that neither the ALJ nor the Administrator were required by law to follow NOAA's Penalty Schedule in determining appropriate sanctions. Id. The Court also held that a report published by the OIG in January 2010 reviewing NOAA's enforcement of fisheries regulations did not contain any evidence relevant to Plaintiffs' case and should be disregarded as extra-record evidence. The Court agreed with the Administrator's and the ALJ's assessment of penalties and sanctions, finding that a $100,000 fine was not arbitrary and capricious or grossly disproportionate to the gravity of the offenses. Id.

The Court of Appeals affirmed this Court's decision in an unpublished opinion. See 418 F. App'x 2 (D.C. Cir. 2011). The Court of Appeals rejected Plaintiffs' claims that the fines and permit sanctions were arbitrary and capricious or unlawfully excessive. The Court of Appeals noted that each decision maker made findings based on statutory factors and that the sanctions were reasonable in light of Plaintiffs' prior history of violations, their culpability, and their ability to pay. The Court of Appeals also held that this Court did not abuse its discretion in failing to supplement the record with the OIG report, as it was issued two months after the Administrator's final decision and did not address specific cases. The Court of Appeals also rejected Plaintiffs' constitutional challenges to the sanctions.

C. The OIG Reports

Plaintiffs' Rule 60(b) motion focuses primarily on a report issued by the OIG on September 23, 2010 entitled "Final Report--Review of NOAA Fisheries Enforcement Programs and Operations." See Pls.' Ex. P-3 (Report No. OIG-19887-2). This report presents the results of the OIG's examination of 27 specific complaints raised by fishermen alleging unfair treatment and overzealous enforcement by NOAA's Office for Law Enforcement ("OLE") and Office of General Counsel for Enforcement Litigation ("GCEL"). See id. at 2. The report was a follow-up to the OIG's January 21, 2010 report, which the Court declined to consider as part of the record during its summary judgment ruling. In the January 21, 2010 report, the OIG reviewed how OLE and GCEL conducted enforcement operations between June and December 2009. See Pls.' Ex. P-2 (Report No. OIG-19887) at 1. The OIG found that individual enforcement attorneys had significant discretion and only minimal guidance, and the OIG recommended that NOAA strengthen its policy guidance, procedures, and internal controls to address a common industry perception that its civil penalty ...


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