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
Background
Watch excerpt from "Dan Rather Reports" on NOAA Fisheries Enforcement
Watch CBS Evening News with Katie Couric" on NOAA Fisheries