Duckworth v. The U.S.A.

• Citation: 705 F.Supp.2d 30
• Decision Date: 15 April 2010
• Docket Number: Civil Action No. 09-1387 (CKK).
• Parties: 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.
• Court: U.S. District Court — District of Columbia

705 F.Supp.2d 30

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.

Civil Action No. 09-1387 (CKK).

United States District Court,

District of Columbia.

April 15, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David B. Lamb, Washington, DC, Patrick Francis Flanigan, Law Office of Patrick Flanigan, Swarthmore, PA, for Plaintiffs.

Rickey Doyle Turner, Jr., U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

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”) ¹ (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. ² 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.³ 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.⁴ ¶ 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).⁵ 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...