U.S. v. Menendez, s. 93-3709
| Decision Date | 12 April 1995 |
| Docket Number | 93-3710 and 94-30059,Nos. 93-3709,s. 93-3709 |
| Citation | 48 F.3d 1401 |
| Parties | , 32 Fed.R.Serv.3d 301, 25 Envtl. L. Rep. 20,938 UNITED STATES of America, Plaintiff-Appellee, v. Wade E. MENENDEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Raymond E. PLAISANCE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Tony Dung VAN NGUYEN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bernard J. Bagert, Jr., Bagert & Trinchard, New Orleans, LA, for appellant.
Peter A. Appel, Robert L. Klarquist, Dept. of Justice, Chrishaus P. Perry, Justice Dept., Trial Atty., Washington, DC, Joan E. Chauvin, Asst. U.S. Atty., Robert J. Boitmann, U.S. Atty., New Orleans, LA, for appellee.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before POLITZ, Chief Judge, GARWOOD and BENAVIDES, Circuit Judges.
These consolidated appeals arise from suits by the United States under 16 U.S.C. Sec. 1540 to collect civil penalties assessed by the National Oceanic and Atmospheric Administration (NOAA) against Tony Dung Van Nguyen (Nguyen), Wade Menendez (Menendez), and Raymond Plaisance (Plaisance) for the knowing and unlawful failure to use a qualified turtle excluder device (TED) while shrimping in violation of the Endangered Species Act of 1973, 16 U.S.C. Sec. 1531 et seq. (ESA) and the applicable regulations, 50 C.F.R. Secs. 227.72(e)(2)(i)(B)(4), 227.72(e)(6)(i). The district court granted summary judgment in favor of the government in each case. We reverse and remand.
Congress enacted the ESA in 1973 "to provide for the conservation, protection, restoration, and propagation of species of fish, wildlife, and plants facing extinction." S.Rep. No. 307, 93th Cong. (1973), U.S.Code Cong. & Admin.News 1973, p. 979. To achieve this goal, the Secretary of Commerce is charged with determining the endangered or threatened status of certain species. Once a species is designated as endangered, the ESA makes it unlawful for any person to "violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by ... this chapter." 16 U.S.C. Sec. 1538(a)(1).
On June 29, 1987, NOAA, an agency charged with the ESA's enforcement, promulgated regulations to protect endangered and threatened sea turtles. Under one such regulation, shrimp trawlers in excess of twenty-five feet trawling in offshore waters from North Carolina to Texas must use approved TEDs during certain times of the year. 50 C.F.R. Sec. 227.72(e). This Court has upheld the validity of these TED regulations. Louisiana ex rel. Guste v. Verity, 853 F.2d 322 (5th Cir.1988). The ESA imposes civil and criminal penalties for violations of these regulations. If a person is found to have knowingly violated any regulation under the ESA, he may be assessed a civil penalty of not more than $12,000 for each violation. 16 U.S.C. Sec. 1540. A party charged with violating the ESA and its regulations may argue that the assessed penalty should be reduced because of his inability to pay. 15 C.F.R. Sec. 904.108. However, the regulations provide that a party challenging the assessed penalty "has the burden of proving such inability by providing verifiable, complete, and accurate financial information to NOAA." Id.
NOAA has also promulgated extensive regulations governing the administrative proceedings for challenging alleged violations of the ESA and the assessment of civil penalties under the Act. 15 C.F.R. Secs. 904.100 et seq. Under these regulations, NOAA commences the administrative proceedings for assessing a civil penalty by serving the charged party a Notice of Violation and Assessment (NOVA), which includes a concise statement of the facts claimed to underlie the alleged violation, a reference to the statutory or regulatory violation alleged, the findings and conclusions on which NOAA bases the assessment, the amount of the civil penalty assessed, and the party's rights upon receipt of the NOVA. 15 C.F.R. Sec. 904.101. After receiving the NOVA, a party may accept the penalty, seek to have it amended, request a hearing, request an extension of time to respond, or take no action. 15 C.F.R. Sec. 904.102(a). If a party charged takes no action, the NOVA becomes the final decision of NOAA thirty days after service. 15 C.F.R. Sec. 904.104. If a party requests a hearing, the case is assigned to an Administrative Law Judge (ALJ), who is to preside over the proceedings and render a written decision. 15 C.F.R. Secs. 904.204, 904.271. The ALJ may "[r]equire a party or witness at any time during the proceeding to state his or her position concerning any issue or his or her theory in support of such position." 15 C.F.R. Sec. 904.204(j). "[I]f the entire record shows" that "there is no genuine issue as to any material fact ... [and] ... the moving party is entitled to summary decision as a matter of law," 15 C.F.R. Sec. 904.210, the ALJ has the power to grant summary decision, either on motion of any party or on his own motion. The ALJ also has the power to dismiss a case for failure to prosecute or defend. 15 C.F.R. Sec. 904.212.
The NOAA regulations provide two avenues of possible appeal for a party to challenge an adverse decision rendered by the ALJ. First, unless the order of the ALJ specifically provides otherwise, a party may file a petition for reconsideration with the ALJ within twenty days of service of the decision. 15 C.F.R. Sec. 904.272. Alternatively, a party may file a petition for discretionary review with the Administrator of NOAA within thirty days of service of the challenged ALJ decision (the Administrator may also decide to review the ALJ decision "upon his or her own initiative"). 15 C.F.R. Sec. 904.273. "Review by the Administrator ... is discretionary and is not a matter of right" and "[t]he Administrator need not give reasons for declining review." Id. If the Administrator "declines to exercise discretionary review," the decision of the ALJ becomes final. 15 C.F.R. Sec. 904.273(g). If no petition for discretionary review is filed, and the Administrator does not "issue[ ] an order to review upon his/her own initiative," the decision of the ALJ becomes final thirty days after service. 15 C.F.R. Sec. 904.271(d). If a timely petition for discretionary review is filed, or the Administrator orders review upon his or her own motion, "the effectiveness of the initial [the ALJ] decision is stayed until further order of the Administrator." 15 C.F.R. Sec. 904.273(b). If the Administrator grants review, then the Administrator's ultimate decision "becomes the final administrative decision on the date it is served, unless otherwise provided in the decision." Id. Sec. 904.273(i).
On January 31, 1990, NOAA issued Nguyen a NOVA assessing an $8,000 penalty for the knowing and unlawful failure to use a TED while shrimping aboard the F/V MISS ELIZABETH in the Gulf of Mexico on September 18, 1989. 1 Nguyen's case was assigned to ALJ Hugh Dolan. Considerable disagreement exists concerning what happened at the administrative level. Nguyen asserts that he requested a hearing through his representative, Tee John Mialjevich (Mialjevich), and that he heard nothing more about his case until he received notice of NOAA's final decision against him. Nguyen emphasizes that he is an immigrant struggling with language problems. By contrast, the government asserts that Nguyen participated in the administrative proceedings through a representative.
The district court recounted the following summary of the administrative proceedings. After Nguyen requested a hearing through Mialjevich, NOAA scheduled a telephone conference to determine whether there were any factual disputes between the parties. During this March 2, 1990, telephone conference, the ALJ determined that there were no factual disputes. Nguyen subsequently confirmed this by filing a Preliminary Position on Issues and Procedures (PPIP) in which he stated that there were no factual or legal issues in dispute. The ALJ determined that the lack of any factual dispute obviated the need for an evidentiary hearing. On April 16, 1990, the ALJ granted NOAA's motion to hear the case on the written submissions and directed Nguyen to make written submissions by May 4, 1990, and NOAA to reply by May 16, 1990. Nguyen submitted affidavits seeking to establish his inability to pay the assessed penalty.
In his June 19, 1990, decision, the ALJ reiterated that Nguyen had stipulated to the facts presented by NOAA and thus held that the only issue to be determined was Nguyen's financial ability to pay the assessed penalty, an issue on which he bore the burden of proof. The June 19, 1990, decision listed Nguyen's representative as Robert J. McManus (McManus), an attorney with Webster & Sheffield in Washington, D.C. 2 The ALJ noted that Nguyen had submitted financial statements and other affidavits and documentation of the harsh effects of the regulations requiring the use of TEDs. The ALJ determined that Nguyen's submissions concerning the burdensome qualities of the TED regulations were "inapplicable to these proceedings because ... [s]uch debate as to the legality and effectiveness of the TEDs regulations is not proper here and has been decided by the appropriate forum." The ALJ, however, did consider the financial statements submitted by Nguyen and, after reviewing them, ultimately determined that he had the financial ability to pay the fine. Accordingly, the ALJ found Nguyen liable and assessed the penalty recommended by NOAA. In his decision, the ALJ stated that any petition for review should be filed within thirty days with the Administrator of NOAA.
Nguyen filed a timely petition seeking discretionary review of the ALJ's determination. On February 13, 1991, the Deputy...
To continue reading
Request your trial
-
United States v. Backlund
...choose to delay judicial review of adverse agency action until the government acts to enforce the decision. See United States v. Menendez, 48 F.3d 1401, 1410–14 (5th Cir.1995) (permitting an APA challenge to the predicate agency decision in a civil suit to collect a penalty assessed in an a......
-
Offiiong v. Holder
...12 U.S.C. § 1708, 24 C.F.R. § 25.8. Darby v. Cisneros, 509 U.S. 137, 154, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993); United States v. Menendez, 48 F.3d 1401, 1411 (5th Cir.1995). 12. The California district court opined that “where an administrative appeal is available, a party need not pursue......
-
Valerio v. Limon
...Plan , 628 F.3d 705, 710–11 (5th Cir. 2010) (same); Sharkey v. Quarantillo , 541 F.3d 75 (2d Cir. 2008) (same); United States v. Menendez , 48 F.3d 1401, 1410–11 (5th Cir. 1995) (same); AAA Bonding Agency Inc. v. U.S. Dep't of Homeland Sec. , 447 F. App'x 603, 612 (5th Cir. 2011) (unpublish......
-
United States v. Backlund
...choose to delay judicial review of adverse agency action until the government acts to enforce the decision. See United States v. Menendez, 48 F.3d 1401, 1410–14 (5th Cir.1995) (permitting an APA challenge to the predicate agency decision in a civil suit to collect a penalty assessed in an a......
-
CHAPTER 5 EXHAUSTION OF ADMINISTRATIVE REMEDIES — NEW DIMENSIONS SINCE DARBY
...exhaustion, satisfying section 704). [30] 30. 53 F.3d 1466 (8 Cir. 1995). [31] 169 F.3d 21 (D.C. Cir. 1999). [32] Id. at 27. [33] 33. 48 F.3d 1401 (5 Cir. 1995). [34] See id. at 1410-1411. [35] Id. [36] Darby v. Cisneros, 509 U.S. at 145. [37] Stone v. INS, 514 U.S. 386, 392 (1995). [38] Id......