by Christian Bourge
Special to Saving Seafood
WASHINGTON (Saving Seafood) June 19, 2011 — In a move that fishing industry legal interests said is seemingly unprecedented and raises broader questions about National Oceanic and Atmospheric Administration (NOAA) enforcement efforts, a U.S. Coast Guard Administrative Law Judge central to recent special investigation findings of improper NOAA action against New England fishermen has made a strongly worded, legally unusual, and unsolicited defense against charges of possible misconduct.
Coast Guard Administrative Law Judge (ALJ) Parlen L. McKenna argues in his unusual response to Special Master Judge Charles Swartwood III’s review of a now infamous case involving NOAA charges of overfishing in closed waters by former New Bedford, Massachusetts scallop fisherman Lawrence Yacubian, that statements made as part of the finding are “not supported by the facts or the law and constitute a reckless disregard for the truth.” This defense came in the form of an order for attorneys in an unrelated, still pending case McKenna’s overseeing to respond as to whether he should recuse himself in that matter based on his detailed response to the charges levied.
Two of the individuals whose cases were examined by Special Master Charles Swartwood III, and in which Special Master Swartwood found serious improper actions will testify on Monday at a special Senate Field Hearing at Fanueuil Hall in Boston. The Senate Financial Management subcommittee will examine the question: "How is NOAA managing funds to protect the domestic fishing industry"? The subcommittee is chaired by Senator Thomas Carper of Delaware. Senator Scott Brown of Massachusetts is the Ranking Member. Video of the hearing will be viewable on the subcommittee's website at 10 a.m.
Judge McKenna claims that Swartwood’s interpretation of the Yacubian case in the report released by the Commerce Department last month has resulted in “significant and lasting damage” to the Administrative Judiciary and the entire Coast Guard's adjudicative programs. He further calls the report “troubling because it impugns” his reputation and “creates an appearance of bias.”
Neither McKenna nor the counsels for the firms involved in the underlying case, Seattle, Washington-based Peter Pan Seafoods, Inc. and the Seven Seas Fishing Company, responded to requests to comment on the matter. But lawyers who specialize in NOAA enforcement issues and have previously represented defendants before McKenna described this order as more than out of the ordinary.
They said that in enforcement cases, and judicial matters in general, a judge typically only asks counsel about the possibility of a recusal when an attorney raises the issue. None of the counsels in the underlying case had raised the Swartwood report making McKenna’s ostensible motivation self-defense rather than traditional legal procedure.
When asked to review the order for her thoughts Yacubian’s New Bedford-based attorney, Pamela Lafreniere, expressed surprise at McKenna’s action as well as to the general tone and manner of his defense. She said it best compares to that heard in a church sermon.
“I’m used to getting my sermons when I am sitting in the pew of my church,” Lafreniere told Saving Seafood. “I’m not used to getting my sermons delivered from an ALJ sua sponte (of one’s own will) in an order where no request was made. In spite of this sermon, which is what it is, [the handling of NOAA cases] needs to be looked into deeper. It is not just about this [Yacubian case], it is about the entire [NOAA enforcement] program that was reviewed.”
Specifically, McKenna compared Swartwood’s “one-sided report” in his detailed 34-page order to a judge issuing an ex parte (one-sided) Initial Decision and Order without allowing input from the one party in a case.
“Indeed, most troubling of all is that Judge Swartwood only obtained information from litigants/persons with a vested interest in the outcome of the administrative hearings he reviewed,” wrote McKenna. “Specifically, he did not interview, or request interviews, with anyone at the Department of Homeland Security, the United States Coast Guard, the Coast Guard's Office of the Chief Administrative Law Judge, anyone in the Coast Guard's ALJ Program, or the undersigned concerning the outrageous allegations he leveled.”
McKenna also claims that he “complied with all federal government ethical requirements” and the American Bar Association’s code of Judicial conduct when handling the Yacubian case, although he provides no proof.
Stephen Ouellette, a Gloucester, Massachusetts lawyer who specializes in fishing industry law, agreed with Lafreniere about the peculiarity of McKenna’s defensive order, particularly since Commerce Secretary Locke recently decided that Coast Guard ALJ’s will stop overseeing NOAA enforcement cases.
“I’ve never quite seen a judge go out and essentially make a case in defense of himself without responding to something,” said Ouellette. “He’s not supposed to really just get up and make a statement. Normally you would expect him to come up and say this issue had been raised by the parties (involved in the case) and if so (say) ‘I will make a ruling’. He’s saying, ‘I’m going to make a ruling in a vacuum.’ Judges are not supposed to render decisions unless an issue is before you.”
Judge McKenna’s actions under fire
Swartwood’s report led to last month’s apology from Commerce Secretary Locke and NOAA administrator Jane Lubchenco to those found wronged, including Yacubian. In total, Swartwood found 13 separate miscarriages of justice in his NOAA investigation, including multiple actions on the part of NOAA as well as McKenna that led to Yacubian losing his fishing vessel, business and his home after NOAA “extracted” $430,000 in “oppressive” fines for over fishing charges that went to the agency’s Asset Forfeiture Fund. An agency Inspector General found in a separate 2010 enforcement review that over $100 million went into that fund over a four and a half year period in which enforcement agents and litigators purchased more vehicles than officials in the office and traveled on the funds.
In reviewing the Yacubian case record Swartwood found the appearance and possibility of a conflict of interest between McKenna and the regulatory enforcement counsels in NOAA’s Gloucester office. He charges that McKenna failed to disclose plans made prior to his receiving the Yacubian case on remand from a higher court for him to travel to a fishing conference in Kuala Lumpur, Malaysia with the Yacubian’s prosecutor Charles Juliand and fellow NOAA prosecutor Mitch McDonald. The trip occurred after the Yacubian case was settled and was paid for with Asset Forfeiture Fund dollars.
For his part, McKenna provides a detailed chronological outline of the planning for that trip, noting that he did not receive notice that Juliand and McDonald would be attending the Malaysian conference until after Yacubian settled his case with NOAA enforcement. He also writes that he was not even sure he would be attending the conference until after the Yacubian case was on his docket. In addition, McKenna writes that he did not attend the conference with the NOAA prosecutors, although they flew on the same flight.
Swartwood also found that McKenna intentionally flouted the 2004 reversal findings of a higher U.S. District Court judge in 2005 by reinstating the penalties of the first ALJ who oversaw the Yacubian case. After U.S. District Judge Nathaniel Gorton vacated the penalties sought by NOAA prosecutor Juliand and imposed by the original ALJ on appeal as “arbitrary and capricious”, McKenna disregarded Judge Gorton’s order by applying the exact same penalty in his secondary review.
In his defensive order, McKenna takes issue with a host of issues in Swartwood’s findings in the case, calling the characterization of his reinstating of penalties reversed by the higher federal circuit court “false” because he was bound by the original NOAA enforcement findings and fees sought against Yacubian.
Lafreniere said she accepts McKenna’s explanation of the Malaysian trip timeline.
“I don’t have any animus toward [McKenna] personally,” said Lafreniere. “I think he is just defending himself. I take him at his word that that is how the events unfolded.”
Nevertheless, she argued that several of McKenna’s responses to Swartwood’s findings about his handling the case are incorrect. Most important in her mind is McKenna’s argument that he was bound by NOAA’s recommendations in the Yacubian case.
She noted that the NOAA penalty orders he claims to have been bound to enforce were, legally speaking, no longer applicable to the case. Both the government and Yacubian agreed in the very first ALJ hearing that NOAA’s original enforcement orders and penalty findings were not an issue because the judge would assess penalties. Lafreniere added that Swartwood’s findings are at least partially based in the fact that McKenna reinstated those NOAA enforcement documents that the record showed were non-biding and served as some of the basis for the higher court’s remand of the case for a completely new review.
“The parties had mutually agreed that the [first] judge would assess penalties,” said Lafreniere. “When I say he’s inaccurate, he (McKenna) argues he is bound by agency findings but not if there is no (applicable) notice of violation.”
The Special Master’s report is not the first time McKenna has run into problems as an administrative law judge. In burnishing his legal experience in the order, he cites his role as International Chief Counsel of the Civil Aeronautics Board, Vice President and General Counsel of an Airline Holding Company, and Senior Trial Counsel for AT&T prior to becoming a judge twenty-five years ago. He also notes his past roles Conference Chair and Secretary of the Judicial Division of the American Bar Association, Conference Chair of the ABA’s Ethics and Judicial Committee as well as his former role as an appointed member of the Administrative Conference of the United States.
Nevertheless, McKenna did not reference his rocky three year tenure as the Chief ALJ for the Department of the Interior which ended with his unsuccessful suit through the US Merit System Protection Board claiming whistleblower status after his position was eliminated in a restructuring.
Interior’s associate solicitor at the time, Lisa Farringer, dismissed McKenna as a “disgruntled employee” in a 1991 letter to ABA Journal magazine after they wrote of his allegations. According to a follow up 1992 article, McKenna claimed he was fired because he testified in favor of judges he supervised at a complaint hearing and petitioned Congress in order to “insulate [his office] from political intrigue”.
But the judge in his whistleblower claim case, Edward J. Reidy, found that while McKenna’s supervisors “bore some hostility” toward him and “had an aversion to him as a person and were jealous of his independent status as an AJL” the restructuring that resulted in his job loss was part of a legal effort to streamline Interior’s ALJ division.
Unusual defense points to broader NOAA enforcement issues
Coast Guard administrative law judges have been under fire for quite some time, especially from litigants about their actions in cases. McKenna obliquely refers to such complaints in the last section of his order in a discussion based around the fact that the 1976 Magnuson-Stevens Fishery Conservation Act is supposed to balance domestic, commercial, and recreational fishing with “conserving fishing resources endangered by overfishing.”
Lafreniere and other attorneys who deal with ALJ’s across the federal sphere and consulted for this article said there have long been concerns about an unbalanced ALJ process. The fact that ALJ’s are charged with applying the law but work for federal agencies – in some cases the very agencies seeking to impose regulatory fines on individuals and companies in the cases they review – has long fueled concerns about conflicts of interest.
For his part, McKenna appears to recognize the inherent conflicts between ALJ’s enforcing the law and being limited by the very codes they are supposed to enforce. He notes in his order that the law overseeing NOAA enforcement, regulations, and agency precedent are based on “presumptions disfavoring the fishermen.” He adds that, “16 U.S.C. § 1860(e)(1) provides “a presumption that all fish found on board a vessel deemed to be committing a violation of the [Magnuson-Stevens] Act will be presumed to have been taken in violation of the Act.”
Lafreniere argues that when McKenna lays out his augments about his handling of the case and the incorrect blame they receive regarding the role of ALJ’s in the NOAA enforcement process; he demonstrates a propensity toward not fully distinguishing between himself and the agency whose cases he’s charged with overseeing.
“When you have instances like this where an ALJ continues to lump the ALJ and agency together as the same unit, there is a fundamental problem,” said Lafreniere.
Ouellette acknowledged that many ALJ’s have long argued, like McKenna in his order, that their hands are tied by the law when it comes to determining the outcome of NOAA regulatory cases. Nevertheless, he added that he has seen McKenna disregard that logic in favor of the facts presented in an individual case even though ALJ’s overall tend to generally avoid such efforts.
He also noted McKenna’s propensity to defend himself in the face of concerns about the ALJ role in the NOAA enforcement. Citing one case he had before him, Ouellette detailed how McKenna pulled out the NOAA Inspector General’s 2010 enforcement reviewreport and made a statement on the record that the Coast Guard ALJ’s had been absolved of allegations of bias.
“[McKenna] has in the past gone to great pains to point out his impartiality from the investigation into the Coast Guard ALJ process, although you have to look at each individual case to see if they are given a fair shake,” said Ouellette. “Unfortunately, administration law cases tend to be fairly one-sided.”
In the end, Lafreniere argued that the issues surrounding the handling of the Yacubian case represent broader problems in how the federal government handles fishery regulatory enforcement matters. She argued that Secretary Locke made his recent decision to apologize based on the totality of cases reviewed by Swartwood and his finding that fair and impartial hearings were not given to all facing enforcement action.
“It is not my intention to single out any particular ALJ,” she said. “It’s the entire ALJ program that resulted in all of these [Swartwood] findings. What would have been appropriate, and we would not be at this place, is if the ALJ programs in total had given fair and impartial hearings to all of the fisherman. This isn’t about one man, it isn’t about one judge. It is about the entire program. This about NOAA.”
Read the "Order to show cause following release of Special Master Swartwood's Report"