WASHINGTON – July 11, 2011 – On Friday, Saving Seafood reported that two Coast Guard administrative law judges who were criticized by Special Master Charles Swartwood for their handling of the Yacubian and Gloucester Auction cases were reassigned to hear additional legal requests associated with those cases.
Last month, the defendants in those cases received apologies from Commerce Secretary Gary Locke and NOAA administrator Jane Lubchenco as well as reimbursement of the judges' imposed fines.
The reassignment of the same judges to these cases happened despite a directive last May from Secretary Locke instructing NOAA to terminate its contract with the Coast Guard's administrative law judge (ALJ) office, which provided arbitration judges to oversee agency regulatory enforcement efforts. The agency has not yet complied with the Secretary's directive.
Today, Congressmen Barney Frank and John Tierney discussed this situation with Commerce Department General Counsel Cameron Kerry, who explained that the Secretary has "no authority over how the Coast Guard proceeds" in these cases.
Following that conversation the Congressmen wrote to Secretary Locke asking that he make it his highest priority to promptly execute his decision to replace the Coast Guard ALJ system.
The text of the letter from the Congressmen follows:
Dear Mr. Secretary:
As we have discussed by phone with Cameron Kerry, the Coast Guard Office of Administrative Law Judges has inexplicably assigned cases involving scalloper Larry Yacubian and the Gloucester Seafood Display Auction to two judges who have previously heard aspects of cases involving these same individuals, despite the fact that legitimate criticisms have been leveled at the judges' actions. The case of Mr. Yacubian is particularly troubling, since the Special Master that your department appointed was quite critical of Judge McKenna and his actions in this case, yet the Coast Guard has assigned Mr. Yacubian's case to that very same judge. And in the case of the Auction, the judge had issued a court order restricting public information that we found contrary to the best interest of the public's right to know, and also represents a requirement that a litigant return to a forum in which he was not treated fairly.
We understand from our conversation with Mr. Kerry that you have no authority over how the Coast Guard proceeds in this case, but we know that you agree that this clearly underlines the correctness of the decision you made to remove fishing enforcement cases from the purview from the purview of the Coast Guard ALJ system.
We welcomed that order in May, and we believe that this recent decision underlines the importance of its being promptly executed. Therefore, we write to urge you to make it your highest priority to arrange for an alternative adjudication forum because your decision to remove these cases from the Coast Guard ALG system has now been shown to be even more important than it was when it was made and widely hailed.
Rep. Barney Frank
Rep. John Tierney