Law

The Coast Guard administrative law judge whose harsh financial ruling against a former fisherman put the accused out of business, then was overturned through a Cabinet-level apology with reparations of $400,000, has removed himself from overseeing the follow-up to the case.

Judge Parlen J. McKenna has defended his handling of the case against Larry Yacubian, who was a New Bedford scalloper and political activist in 2005 when the case was tried, and asserted Thursday in his motion recusing himself from presiding over the legal fees' assignment that he had no legal reason to do so.

The National Oceanic and Atmospheric Administration and its National Marine Fisheries Service have used the Coast Guard administrative law judge system to hear cases the agencies have brought against fishermen and fishery-related businesses.

The administrative judge's actions in and outside the courtroom were chastised in May by a special judicial master retained by federal Commerce Secretary Gary Locke, who called in retired federal magistrate Charles B. Swartwood III to examine the most egregious cases of justice miscarried against the fishing community. The additional probe came in the aftermath of a two-year investigation by the Commerce Department Inspector General Todd Zinser.

Read the complete story from The Gloucester Times.

 

 

 

 

 

BOSTON (Saving Seafood) July 28, 2011 —  Judge Parlen McKenna has granted a motion for recusal in the case of former New Bedford Scalloper Larry Yacubian.  Saving Seafood first reported on July 8, that two Coast Guard administrative law judges were been reassigned to adjudicate additional legal requests in controversial NOAA enforcement cases.  The cases, involving former New Bedford scalloper Larry Yacubian and the Gloucester Seafood Display Auction, were among the cases in which an independent special master found the defendants' rights so severely trampled that they received apologies for the wrongdoing from Secretary Gary Locke and NOAA administrator Jane Lubchenco as well as reimbursement of the judge's imposed fines.  

In a May 17, 2011 decision memorandum , Secretary Locke "directed NOAA to terminate the Coast Guard Administrative Law Judge contract" for adjudication of fisheries cases.  On July 11, after learning that the same judges who were critcized by the special master had been re-assigned to the Yacubian and Gloucester Auction cases, Congressmen Barney Frank and John Tierney asked Secretary Locke to make it his "highest priority to arrange for an alternative adjudication forum".

In his order, Judge McKenna wrote:

"Appearance of bias is the incorrect standard to use in disqualification of an administrative law judge because administrative law judges work for the agency whose action they review and an "appearance of impropriety" standard would require recusal in every case. … No justifiable basis exists for Applicants and their counsel to claim actual bias or prejudgment in this case despite their efforts to raise issues that have nothing to do with resolving Applicants' EAJA claim.

Nevertheless, in order to ensure that Applicants receive consideration of their EAJA claim without unnecessary distractions and to uphold the integrity of the United States Coast Guard's Administrative Law Judge Program from further baseless attacks, I will recuse myself from these proceedings.

ORDER

WHEREFORE: IT IS HEREBY ORDERED that Applicants' Motion for Recusal is GRANTED and I will have no further involvement in considering or ruling upon Applicants' EAJA claim.

Done and dated this 29th day of July, 2011 at Alameda, CA.

HON. PARLEN L. MCKENNA
Administrative Law Judge United States Coast Guard"

 

 

 

 

 

A former fisherman, awarded $400,000 in reparations from NOAA for a miscarriage of justice that cost him his boat and business but brought a fierce rebuttal from the trial judge, said Monday said that in the course of the rebuttal the judge might have libeled him.

But his lawyer is going further, saying that the entire group of Coast Guard administrative law judges who heard cases brought against fishermen and fishing industry businesses by the National Oceanic Administration was guilty of "collusion.''

Lafreniere said, based on documents released under the Freedom of Information Act, that all the Coast Guard administrative law judges were guilty of "collusion" with McKenna.

Lafreniere said a trove of redacted, exchanged internal emails between McKenna and other Coast Guard administrative law judges commenting on the claimed failings and falsehoods McKenna found in the Swartwood report also showed improper "collusion" and so, "no respondant that has appeared before Special Master Swartwood can receive a fair and impartial hearing" from any Coast Guard administrative law judge.

Read the complete story from The Gloucester Times.

Read the emails from Judge Devine.

Read the emails from Judge Brudzinski.

 

 

 

 

BOSTON (AP) — Fishing industry advocates who filled a Boston courtroom in March, hoping to persuade a federal judge to strike down new rules that set catch limits, got a blunt message from an opposing lawyer: If they really want change, they're in the wrong building, he said.

"They need to take that up with Congress," Department of Justice lawyer James Maysonett told U.S. District Judge Rya Zobel.

Last month, Zobel ruled against the industry, leaving it with little choice but to follow Maysonett's advice and try to change fishery law though legislation in Washington.

It won't come easy. Amending the Magnuson-Stevens Act will be a massive undertaking with uncertain prospects. Fishermen have recent legislative wins and backing from high-profile Massachusetts lawmakers Rep. Barney Frank and Sens. John Kerry and Scott Brown. But that political pull is diluted by a legislative process that requires support from lawmakers from inland states where the fishing industry has little influence.

Read the complete story by The AP at My San Antonio.

 

 

 

 

 

 

Oceana, the largest international advocacy group working solely to protect the world’s oceans, today released a new report outlining violations of sea turtle protection regulations in the Gulf of Mexico Shrimp Fishery. Specifically, the data shows that illegal fishing in the Gulf is killing thousands of threatened and endangered sea turtles, far more than had originally been estimated and approved by the U.S. government under the Endangered Species Act (ESA).

Oceana’s report documents violations of the fishery to use Turtle Excluder Devices (TEDs), which allow sea turtles to escape instead of drowning in the nets. It also provides a sea turtle mortality estimate for Gulf bottom otter trawls, taking into account the documented illegal activity. Gulf bottom otter trawls alone are killing at least 4,874 loggerhead and 108 leatherback sea turtles, which is significantly higher than the ESA authorized catch limit for these species for the entire shrimp fishery.

In a letter today to the National Marine Fisheries Service (NMFS), Oceana notified the government that it will sue unless immediate action is taken to remedy these violations and protect sea turtles.

 

Read the complete press release from Oceana

 

 

 

 

 

GLOUCESTER – July 17, 2011 — It's been two months since U.S. Commerce Secretary Gary Locke ordered NOAA officials in May to "terminate" the Coast Guard Administrative Law Judge System, cited by a special judicial master for its handling of cases involving heavy fines against the fishing industry.

But the National Oceanic and Atmospheric Administration has been unwilling or unable to say when the use of the service will end, or provide details about the contract.

And the administrative law system is still being assigned to and hearing "new cases," according to NOAA spokeswoman Monica Allen.

Last week, however, NOAA officials failed to provide a copy of the Administrative law judge contract or respond to Times queries about the specific duration of the contract and when it would be terminated.

The auction settled the case before ALJ Walter J. Brudzinski before it came to trial, but Brudzinski had placed a gag order on the auction defense team barring it from discussing or releasing a mass of internal NOAA documents about the case as it was being organized.

Now, Brudzinski is reassigned to hear the auction's case for reimbursement of legal fees.
Special Master Charles B. Swartwood III had determined that despite an enormous output in time and energy including an illegal forced entry to the building and improper pressure on fishermen to "rat out" the business, the government had produced no evidence of any illegal activities at the auction, the main platform for the sale of seafood from the Gulf of Maine and Georges Bank.

Also, Administrative Law Judge Parlen McKenna, who was the trial judge for the NOAA case against Yacubian for fishing in closed areas, was alleged by Swartwood to have been involved in the appearance of a conflict of interest by consorting with Yacubian's prosecutors while involved in adjudicating the matter.

McKenna has rebutted the allegations in a lengthy legal document appended to an unrelated case.
The decision by NOAA to continue using the Coast Guard administrative judicial system in the face of Locke's May order to terminate the practice has antagonized further much of the fishing community, which long has objected to the mistreatment much of which was documented by the Commerce Department inspector general in 2010.

"From my perspective," said Paul Muniz of Burns and Levenson, which has represented the Gloucester auction in its NOAA cases, "this latest pronouncement is emblematic of the agency's continued arrogance and disdain for the industry and also says something about the sincerity of the agency's apology."

"It shows no good faith," New Bedford Mayor Scott Lang said in response to the SavingSeafood report.

 

 Read the complete story from The Gloucester Times

 

 

 

 

Suing to regain extensive legal fees, two victims of miscarried federal fisheries justice — the Gloucester Seafood Display Auction and former New Bedford scalloper Larry Yacubian — found their cases assigned to the same judges who presided over prosecutions that shamed NOAA and brought Cabinet-level apologies and reparations.

The assignment of the claims for legal fees to the original judges from the Coast Guard's administrative law judge system was first reported Friday on the news website Saving Seafood in a report by freelance journalist Christian Bourge.

The auction expenses case was assigned to Administrative Law Judge Walter J. Brudzinski; the Yacubian case was assigned to ALJ Parlen L. McKenna.

Both judges played controversial roles in cases that were derided and picked apart by a special investigative master working for Commerce Secretary Gary Locke.

The rematching of judges with the victims to determine legal fees was widely condemned Monday by defenders of the two businesses. Congressmen John Tierney and Barney Frank also described the decision as inexplicable in a letter to U.S. Commerce Secretary Gary Locke.

Read the complete story from The Gloucester Times.

 

 

 

 

 

Losers in U.S. District Court, the fishing industry plaintiffs challenging the federal government's alleged "back door" catch share regimen for the New England groundfishery Friday agreed to file notice that they will challenge the judge's opinion in the U.S. Court of Appeals, while also seeking an inspector general's investigation of the National Oceanic and Atmospheric Administration's rule-making process.

Congressman John Tierney's office said Friday the fisheries' congressional coalition will likely back the request for the IG's investigation.

"I talked to the congressman, and he is working with his colleagues — both House and Senate — to draft a letter seeking review or investigation of NOAA's processes," said Tierney's spokeswoman, Kathryn Prael.

Read the complete story from The Gloucester Times.

 

 

 

 

 

NEW BEDFORD — Lawyers for New Bedford and Gloucester will scour for appeal material after a recent federal court decision against the two cities in their case against fisheries management rules imposed by the Commerce Department last year.

Mayor Scott W. Lang said about 30 stakeholders in the case, including representatives of members of Congress, took part in a one-hour conference call Friday afternoon.

They decided, Lang said, to pursue not only a possible appeal but several other angles. "We're going to continue on all fronts, the courts, the inspector general, Congress, and perhaps we'll look toward the GAO (Government Accountability Office) regarding the whole issue of funding and how they use their funds" (at NOAA), Lang said.

"We're going to continue to grind it away," he said. The plaintiffs have 60 days from June 30 to appeal the decision, which held in favor of NOAA fisheries regulators on every count. The cities were stifled in their attempt by Judge Rya Zobel's decision not to allow sworn testimony and instead rely exclusively on NOAA's official record of its decisions to impose catch shares and sector management in the Northeast fishery.

Read the complete story from The South Coast Today.

 

 

 

 

 

by Christian Bourge
Special to Saving Seafood

WASHINGTON (Saving Seafood) July 8, 2011 — In a surprising move that runs counter to a Secretarial directive, two Coast Guard administrative law judges have been reassigned to adjudicate additional legal requests in controversial NOAA enforcement cases.  The cases, involving former New Bedford scalloper Larry Yacubian and the Gloucester Seafood Display Auction, were among the cases in which an independent special master found the defendants’ rights so severely trampled that they received apologies for the wrongdoing from Secretary Gary Locke and NOAA administrator Jane Lubchenco as well as reimbursement of the judge’s imposed fines.

These moves come despite a directive last May from Secretary Locke for NOAA to terminate its contract with the Coast Guard’s administrative law judge (ALJ) office, which provides arbitration judges to oversee agency regulatory enforcement efforts, “in order to reset NOAA’s relationship with the regulated community.” Locke’s decision was based on Special Master Judge Charles Swartwood III’s review of 31 NOAA enforcement cases. The resulting 236-page redacted report detailed 13 separate cases of wrongdoing on the part of the agency and some ALJs involved. Judge Swartwood is currently conducting a review of 77 additional cases.

According to documents obtained by Saving Seafood, Coast Guard Administrative Law Judge Parlen L. McKenna was reassigned on June 27 by Coast Guard Chief ALJ Joseph N. Ingolia to oversee efforts to recover attorney’s fees and other expenses incurred by Captain Yacubian during his lengthy defense against NOAA’s charges of overfishing in closed waters.

As Saving Seafood reported last month, in May, Judge McKenna issued a highly unusual order in an unrelated case in which he defended himself against Swartwood’s charges of wrongdoing in the Yacubian matter. Judge McKenna furthered his self-defense in a June 30 order in the Yacubian case that notes his reassignment comes as a result of federal regulations requiring the same adjudicating officer in the original case to oversee expense recovery efforts.

As part of their effort to recover expenses, Captain Yacubian’s attorneys have filed for further discovery in the case, asking for a non-redacted copy of Judge Swartwood’s report including an e-mail withheld by Commerce that Judge Swartwood describes as, “credible evidence that money was NOAA’s motivating objective in this (Yacubian) case.”

In his investigation, Judge Swartwood found the appearance and possibility of a conflict of interest between McKenna and the regulatory enforcement lawyers in NOAA Fisheries’ Gloucester office, who were scheduled to travel together to a conference in Kuala Lumpur, Malaysia at the time Judge McKenna issued a ruling which Judge Swartwood found ignored the 2004 reversal findings of a higher U.S. District Court judge in 2005 and reinstated penalties against Yacubian.

Numerous Freedom of Information Act (FOIA) requests have yielded documents suggesting, but not quite confirming, that the trip was paid for using the Asset Forfeiture Fund. That fund was comprised of money from fines and seizures from fishermen including the $430,000 fine levied against Captain Yacubian. In addition, on page 20 of his unusual May order defending his Kuala Lumpur trip and participation in the conference, Judge McKenna referenced in a footnote that the Magnuson-Stevens Act at 16 U.S.C. §1861(e)(1)(C) provides that fines, penalties, and forfeitures of property for violations of the Act may be used for "any expenses directly related to investigations and civil or criminal enforcement proceedings, including any necessary expenses for equipment, training, travel, witnesses, and contracting services directly related to such investigations or proceedings", without actually confirming the Asset Forfeiture Fund as the source of funds for the trip.

Another FOIA request, answered on June 30, provided additional background on the Kuala Lumpur conference and also revealed that Judge McKenna and Mr. George Jordan of Chief Administrative Law Judge Joseph Ingolia’s staff asked that their flights be upgraded to business class.  Michelle Kuruc of NOAA’s Office of General Counsel denied the request.

In a separate high profile case of agency enforcement mismanagement, ALJ Walter J. Brudzinski was reassigned by the Coast Guard’s ALJ office on June 28 to adjudicate efforts by the Gloucester Seafood Display Auction, to recover attorney’s fees and expenses. Judge Swartwood found that despite a herculean effort over many years, NOAA’s actions amounted to "selective enforcement” and found “no credible evidence that the Gloucester Seafood Display Auction was willfully violating fisheries regulations."

Of potential concern to the Gloucester Auction — as well as congressional and fishing interests intent on bringing information about overzealous and suspect enforcement — is Brudzinski’s February 2010 ruling aimed at keeping at least some information gleaned in the case from becoming public. According to documents in the case obtained by Saving Seafood, Brudzinski issued a Feb 2010 gag order as part of a discovery ruling regarding total landing and attendant values of competing New England fishing companies by requiring, “any information provided through discover in this case shall be used solely for hearing purposes and may not be released by the parties.”

While Brudzinski’s order appears statutorily correct in terms of the legal limits on the public release of proprietary information, the document shows NOAA litigators failed to keep such information from being obtained when it was important to their defense. The fact that existing federal law limits the public disclosure of key information in such a prominent and controversial case is potentially further fuel for New England fishing industry and congressional efforts to demand increased transparency of NOAA’s enforcement efforts.

Despite Judge Swartwood’s report and Secretary Locke’s directive to end Coast Guard ALJ oversight of NOAA enforcement lawsuits, Captain Yacubian and the Gloucester Auction continue to be forced to appear before the same judiciary for which Secretary Locke and NOAA Administrator Lubchenco apologized.

Re-Assignment of Yacubian case to Judge McKenna

Briefing and Scheduling order from Judge McKenna on Discovery request in the Yacubian case

Re-Assignment of Gloucester Auction case to Judge Brudzinski

Documents released via FOIA about the Kuala Lumpur conference and referencing Judge McKenna's request to fly business class

Background

Watch excerpt from "Dan Rather Reports" on NOAA Fisheries Enforcement

Watch CBS Evening News with Katie Couric" on NOAA Fisheries

Watch and Read Testimony from Senate Hearing with Chairman Thomas Carper and Ranking Member Scott Brown on NOAA's use of the Asset Forfeiture Fund

Listen to Captain Larry Yacubian and the Gloucester Auction's Larry Ciulla on WBSM / Saving Seafood Radio