Diehl v. Franklin

• Citation: 826 F. Supp. 874
• Decision Date: 15 July 1993
• Docket Number: Civ. No. 92-4084 (GEB).
• Parties: Roy R. DIEHL, Plaintiff, v. Barbara H. FRANKLIN, Secretary of Commerce, Defendant.
• Court: U.S. District Court — District of New Jersey

826 F. Supp. 874

Roy R. DIEHL, Plaintiff, v. Barbara H. FRANKLIN, Secretary of Commerce, Defendant.

Civ. No. 92-4084 (GEB).

United States District Court, D. New Jersey.

July 15, 1993.

Ronald E. Reisner, Tucci and Reisner, West Long Branch, NJ, David E. Frolla, Brand & Lowell, Washington, DC (argued), for plaintiff Roy Diehl.

Michael Chertoff, U.S. Atty., D. N.J., Irene Dowdy, Asst. U.S. Atty., Patricia Kraniotis, NOAA Office of Gen. Counsel, Silver Spring, MD (argued), for defendant Secretary of Commerce.

MEMORANDUM AND ORDER

GARRETT E. BROWN, Jr., District Judge.

This is an action under 16 U.S.C. § 1858(b) for review of a $10,000 civil penalty imposed on plaintiff Roy R. Diehl. The National Oceanic and Atmospheric Administration ("NOAA" or "the agency"), a federal agency within the Department of Commerce responsible for enforcing the Magnuson Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1882 ("the Act"), imposed the penalty on the grounds that plaintiff interfered with a lawful investigation under the Act in violation of 16 U.S.C. § 1857(1)(A) and 50 C.F.R. § 625.7(b)(4). Plaintiff challenges both the finding of liability and the amount of the penalty. Defendant has counter-claimed for payment of the penalty.

Two motions are now before the Court: defendant's motion for summary judgment dismissing the complaint and granting the counterclaim, and plaintiff's cross-motion to dismiss the counterclaim. Having heard oral argument, for the reasons set forth below the Court will grant defendant's motion in part and grant plaintiff's. Further, having reviewed the entire record, the briefs submitted, and the arguments of counsel, the Court concludes that plaintiff may be penalized for interfering with an investigation under the Act, but that the amount of the penalty must be reconsidered in light of the factors Congress set forth in the Act.

BACKGROUND

Shortly after midnight on May 22, 1989, three members of the United States Coast Guard ("USCG") stood on the beach outside of the USCG station in Sandy Hook, New Jersey. They noticed a vessel offshore, running without lights and making sweeps back and forth. They contacted a USCG boat by radio and guided it to the vessel's location. The USCG boat arrived and identified the fishing vessel MISS JEAN with two persons aboard, plaintiff Roy Diehl, the owner and master, and his mate, Edward Vance. They ordered plaintiff to proceed to the Sandy Hook USCG station for a routine law enforcement boarding and inspection. Plaintiff complied with the order. See Tr. 8/30/90, at 13-21, 64-68, 114-17, 170, 179-81 (Ex. 41).¹

At the station, USCG Officer Norton ordered plaintiff and Vance off the F/V MISS JEAN and explained that he and two other USCG members, Griffin and Pechacek, were going to board the vessel for a routine inspection. Plaintiff was permitted to return to the vessel and be present during the initial inspection. Id. 41-42, 129. Coming aboard, the USCG members noticed a pile of fish on the deck. After the routine inspection,² the USCG Sandy Hook headquarters contacted the New Jersey Division of Fish, Game and Wildlife. At approximately 3:30 a.m., Todd Eisenhuth, a state conservation officer with authority to enforce the Act, arrived at the scene. When he arrived, the USCG members told him that plaintiff had been running without lights and that they suspected him of fishing illegally. They asked Eisenhuth to inspect plaintiff's catch for compliance with both state and federal law. Id. 143, 147.

Eisenhuth boarded the F/V MISS JEAN, where plaintiff and his mate were waiting. At the time, plaintiff was carrying on in a belligerent manner toward the USCG members, who were standing on the dock a short distance away. Id. 144. Eisenhuth testified that plaintiff subjected the USCG members to "a series of foul language" in a "loud tone of voice." Id. 148. Plaintiff's commentary went on throughout the time Eisenhuth was on the vessel. Id. 150. USCG member Pechacek testified as to the nature of comments made during the night: "There were comments, snide comments, rude comments towards myself, towards my boarding team members made throughout the night. Rude comments, threats to kick our asses, and then take us to have a beer. The threat I'm going to kill you, the threat that we don't — we don't know what they're — what we're doing. The threat I should walk down the boat and get a shotgun and blow off a couple of rounds and then maybe you'll shit your pants." Id. 103.

Plaintiff directed the death threat to USCG member Jeff Norton. Five months earlier, in January 1989, Norton had been involved in a USCG boarding of the F/V MISS JEAN at sea, as a result of which, plaintiff alleges, his vessel was damaged. Although there is some dispute about exactly when during the evening plaintiff made the threat and whether it was provoked in any way,³ there is no dispute that he made it. Norton testified that plaintiff said, "You mother fucker, I will kill you and you will never get a chance to do another boarding on my vessel. I don't care if I have to go to jail for 15 years, I'm going to kill you." Id. 26. Eisenhuth and Pechacek testified that they heard plaintiff make the threat. Id. 71, 144-45, 150. In addition, Richard Livingston, an agent with the National Marine Fisheries Service, testified that a week after the incident plaintiff admitted that he had threatened Norton. Id. 157, 159. Mark Chicketano, an agent with the New Jersey Division of Fish, Game, and Wildlife, testified that approximately three months after the incident plaintiff likewise admitted that during the inspection he had become angry and threatened to kill Norton. Id. 163-64.

Persons present during the inspection later testified to the effect of plaintiff's conduct. Eisenhuth testified that he had been bending over measuring fish when plaintiff made the threat, and as a result he "put the fish board down and stood up and observed Mr. Vance and Mr. Diehl, anticipating perhaps, something more was going to happen." Id. 151. He further testified:

Based on past boardings and other experience in inspecting sportsmen and commercial fishermen, this situation was not a normal situation in that there were — Mr. Diehl continued to carry on throughout my inspection, this is for a period of time, not just a short period of time and it was cause enough for me to stop my inspection, watch Mr. Diehl just to see if anything else was going to happen.

That's normally not the case on fisheries inspections. Normally the captains and the mates, whatever stand by while you measure fish, and there is normally not that much hostility and if there is, it usually stops rather quickly.

Id. 152-53. Pechacek testified as follows:

Plaintiff's threat automatically raises the tensions, it automatically raises the amount of — I really don't know what word to put it in, it's a — it makes everybody nervous and it makes things start going really rough. And it's not what you need, it, it can go calm or it can go completely out of control. And that's not what you want to happen.

Id. 74. In Griffin's words,

After the threats were made toward Petty Officer Norton, it kind of gave a more stressed attitude towards the boarding. He raised the stress level of all the individuals involved in the boarding to the point where we were more worried about Mr. Diehl doing something violent toward the boarding party and we had to pertain more to that than finishing up the boarding. It took longer to finish up the boarding because of that.

Id. 123-23A.

After plaintiff's outburst, several USCG members came to the scene, and a superior ordered Norton to leave the area. Id. 29, 175, 196. Eisenhuth took ten or fifteen more minutes to complete his inspection. Id. 152. When Eisenhuth was finished, Pechacek signed a USCG Form 4100 Report of Boarding (Ex. 49) and gave it to plaintiff. Id. 72. Plaintiff and Vance then left the dock in the F/V MISS JEAN.

On May 24, 1989, an agent from NOAA completed an Enforcement Action Report concerning the event, indicating that plaintiff had "intimidated and interfered with an authorized officer in the conduct of a lawful fisheries inspection." (Ex. 43) On September 7, 1989, a NOAA enforcement attorney issued a Notice of Violation and Assessment (NOVA) charging plaintiff with violating section 307(1)(A) of the Act, 16 U.S.C. § 1857(1)(A), and an implementing regulation, 50 C.F.R. § 625.7(b)(4), which makes it unlawful to "interfere with, obstruct, delay or prevent by any means the lawful investigation or search in the process of enforcing 50 C.F.R. part 625." The NOVA indicated that NOAA would assess a $10,000 penalty. (Ex. 2)

Consistent with the NOVA, on September 18, 1989, plaintiff requested an administrative hearing. (Ex. 3) By Notice and Order dated October 6, 1989, plaintiff and the agency were directed to submit a "preliminary position on issues and procedures" ("PPIP") in accordance with 15 C.F.R. § 904.240(a). (Ex. 5) Plaintiff's counsel submitted his PPIP on November 2, 1989, indicating inter alia, under the heading "opposition to penalty," the following:

Based upon the fact that Respondent denies any violation of the Act as set forth in the NOVA, Respondent does not direct himself to the issue of penalty at this time. However, Respondent reserves the right to be heard pursuant to 15 CFR 904.108.

Ex. 6. The agency also submitted a PPIP, indicating that it believed the $10,000 penalty reasonably reflected the gravity, nature, and circumstances of the alleged violation. The agency also stated:

The Respondent has not asserted that he is unable to pay the civil penalty assessed in the NOVA, and has made no showing regarding his ability to pay as required by the Ability to Pay regulations at 15 CFR 904.108.

Ex. 7.

On August 30, 1990, an administrative law judge (ALJ) conducted a hearing in Wall, New Jersey. The substance of the testimony given at the hearing is set forth above. The parties received...