DUCKWORTH et al v. THE UNITED STATES OF AMERICA et al

Filing 42

MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on September 6, 2011. (lcckk1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GREGORY N. DUCKWORTH, F/V
REAPER, INC., and F/V TWISTER, INC.,
Plaintiffs,
v.
THE UNITED STATES OF AMERICA,
acting by and through GARY LOCKE, in his
official capacity as Secretary of the United
States Department of Commerce, THE
NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, and
THE NATIONAL MARINE FISHERIES
SERVICE,

Civil Action No. 09–1387 (CKK)

Defendants.

MEMORANDUM OPINION
(September 6, 2011)
Plaintiffs Gregory N. Duckworth, F/V Reaper, Inc., and F/V Twister, Inc. (collectively,
“Plaintiffs”) brought this action against Defendants Gary Locke, in his official capacity as the
Secretary of the United States Department of Commerce, the National Oceanic and Atmospheric
Administration (“NOAA”), and the National Marine Fisheries Service (“NMFS”)1 (collectively,
“Defendants”) seeking to appeal a final decision of the Secretary regarding Notices of Violation
and Assessment and Notices of Permit Sanction issued to Plaintiffs for alleged violations of the
Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens Act” or
“MSA”), 16 U.S.C. §§ 1801-82. On April 15, 2010, the Court granted Defendants’ motion for
1

The National Marine Fisheries Service is administratively part of the National Oceanic
and Atmospheric and Administration, which is housed within the U.S. Department of
Commerce. The Court shall generally use the term “agency” to refer to any of these entities.

summary judgment. Plaintiffs appealed, and the Court of Appeals affirmed the Court’s judgment
on April 21, 2011. Presently pending before the Court is Plaintiffs’ [35] Motions Pursuant to
Rules 60(b) and 62.1(a) Pleads for Relief from a Judgment and Order [sic], which was filed
during the pendency of the appeal. Now that the Court of Appeals has issued the mandate,
Plaintiffs’ request for relief is not barred by a pending appeal, and therefore there is no need for
an indicative ruling pursuant to Rule 62.1. Accordingly, the Court shall consider Plaintiffs’
motion pursuant to Rule 60(b).
Plaintiffs contend that the Court should set aside its prior judgment based on evidence
published by the Department of Commerce Office of Inspector General (“OIG”) in a final report
issued on September 23, 2010 regarding NOAA’s fisheries enforcement programs and
operations. However, for the reasons explained below, the Court finds that the OIG’s final report
does not provide a valid basis for the Court to set aside its judgment. Accordingly, the Court
shall DENY Plaintiffs’ Rule 60(b) motion.
I. BACKGROUND
Most of the facts relevant to Plaintiffs’ present motion were laid out by the Court in its
summary judgment opinion. See Duckworth v. United States ex rel. Locke, 705 F. Supp. 2d 30,
34-39 (D.D.C. 2010). The Court assumes familiarity with that opinion here. For background
purposes, the Court shall briefly recite the facts most relevant to the pending motion.
A.

Factual Background

Plaintiff Gregory Duckworth (“Duckworth”) is a commercial fisherman who lives in
Rhode Island. At the time of the events giving rise to the alleged violations at issue, Duckworth
was the sole owner of the fishing vessels Reaper and Twister, which he managed through wholly2

owned corporations F/V Reaper, Inc., and F/V Twister, Inc., respectively. On August 2, 2007,
NOAA issued Notices of Violation and Assessment (“NOVAs”) and Notices of Permit Sanction
(“NOPSs”) against Plaintiffs alleging nine violations of the Magnuson-Stevens Act, eight of
which were the subject of this appeal. The first of the eight counts at issue pertained to a claim
that Duckworth and F/V Twister, Inc. made a false statement in connection with a fishing permit
application in violation of 50 C.F.R. § 648.14 (the “False Statement Case”). The remaining
seven counts pertained to allegations that Duckworth and F/V Reaper, Inc. unlawfully fished for
lobster by leaving lobster traps at sea after their fishing permits were suspended due to a prior
federal fisheries violation (the “Lobster Traps Case”).
Plaintiffs requested an administrative hearing on the alleged violations, and a three-day
hearing was commenced in Boston, Massachusetts, on May 6, 2008. During the hearing,
Defendants presented testimony from eleven witnesses and introduced forty-nine exhibits;
Plaintiffs offered testimony from four witnesses and introduced seventeen exhibits into evidence.
The case was heard by Administrative Law Judge (“ALJ”) Michael Devine, who issued an Initial
Decision and Order on October 6, 2008, finding that NOAA had established by a preponderance
of reliable and credible evidence that Plaintiffs had violated federal fisheries laws and regulations
by submitting a false statement in a permit application and by fishing for lobsters without a valid
permit. The ALJ weighed the factors to be considered in deciding an appropriate penalty under
the MSA and its regulations, and he ultimately adopted the sanctions proposed by Defendants:
a civil penalty of $130,000 and a revocation of operator and vessel permits for Duckworth and
F/V Twister, Inc. for the False Statement Case and a civil penalty of $910,000 and a revocation
of operator and vessel permits for Duckworth and F/V Reaper, Inc. for the Lobster Traps Case.
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Plaintiffs submitted a discretionary petition to the NOAA Administrator seeking review
of the ALJ’s decision. On November 24, 2009, NOAA Administrator Jane Lubchenco issued an
order affirming the violations but modifying the ALJ’s initial decision regarding the sanctions
and penalties imposed. After considering Plaintiffs’ ability to pay and the magnitude of the
offenses, the Administrator reduced the monetary penalty to $50,000 for the False Statement
Case and $50,000 for the Lobster Traps Case. The Administrator also reduced the permit
revocations imposed by the ALJ to permit suspensions for a period of 48 months. The
Administrator’s ruling constituted the final agency action.
B.

Procedural Background

This Court reviewed the Administrator’s decision to determine whether it was supported
by substantial evidence pursuant to 16 U.S.C. § 1858(b). The Court held that the ALJ’s
determination that Plaintiffs made a false statement and fished for lobster without a permit in
violation of MSA regulations was supported by substantial evidence. See 705 F. Supp. 2d at 4248. The Court also held that the penalties imposed by the Administrator were not excessive or in
violation of the MSA, its regulations, or the Eighth Amendment to the United States
Constitution. Id. at 48-50. The Court noted that the fines imposed were well within the range
allowed by the Magnuson-Stevens Act, which allows civil penalties up to $130,000 for each
violation. Id. at 48. The Court also noted that both the ALJ and the Administrator had
enumerated reasons why the record supported a substantial fine, viz., that Duckworth
intentionally forged official U.S. Coast Guard documentation for the purpose of obtaining a
permit renewal, intentionally tried to circumvent the law by deploying lobster gear while permit
sanctions were in effect, and had a record of prior offenses that demonstrated a “cavalier attitude
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toward the agency’s regulations and enforcement processes.” Id. at 49. The Court held that
neither the ALJ nor the Administrator were required by law to follow NOAA’s Penalty Schedule
in determining appropriate sanctions. Id. The Court also held that a report published by the OIG
in January 2010 reviewing NOAA’s enforcement of fisheries regulations did not contain any
evidence relevant to Plaintiffs’ case and should be disregarded as extra-record evidence. The
Court agreed with the Administrator’s and the ALJ’s assessment of penalties and sanctions,
finding that a $100,000 fine was not arbitrary and capricious or grossly disproportionate to the
gravity of the offenses. Id.
The Court of Appeals affirmed this Court’s decision in an unpublished opinion. See 418
F. App’x 2 (D.C. Cir. 2011). The Court of Appeals rejected Plaintiffs’ claims that the fines and
permit sanctions were arbitrary and capricious or unlawfully excessive. The Court of Appeals
noted that each decision maker made findings based on statutory factors and that the sanctions
were reasonable in light of Plaintiffs’ prior history of violations, their culpability, and their ability
to pay. The Court of Appeals also held that this Court did not abuse its discretion in failing to
supplement the record with the OIG report, as it was issued two months after the Administrator’s
final decision and did not address specific cases. The Court of Appeals also rejected Plaintiffs’
constitutional challenges to the sanctions.
C.

The OIG Reports

Plaintiffs’ Rule 60(b) motion focuses primarily on a report issued by the OIG on
September 23, 2010 entitled “Final Report–Review of NOAA Fisheries Enforcement Programs
and Operations.” See Pls.’ Ex. P-3 (Report No. OIG-19887-2). This report presents the results
of the OIG’s examination of 27 specific complaints raised by fishermen alleging unfair treatment
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and overzealous enforcement by NOAA’s Office for Law Enforcement (“OLE”) and Office of
General Counsel for Enforcement Litigation (“GCEL”). See id. at 2. The report was a follow-up
to the OIG’s January 21, 2010 report, which the Court declined to consider as part of the record
during its summary judgment ruling. In the January 21, 2010 report, the OIG reviewed how OLE
and GCEL conducted enforcement operations between June and December 2009. See Pls.’ Ex.
P-2 (Report No. OIG-19887) at 1. The OIG found that individual enforcement attorneys had
significant discretion and only minimal guidance, and the OIG recommended that NOAA
strengthen its policy guidance, procedures, and internal controls to address a common industry
perception that its civil penalty assessment process is arbitrary and unfair. See id. at 3. The OIG
also noted that initial fine assessments in the Northeast Region (where Plaintiffs were
sanctioned) were substantially higher than in other regions, fostering an appearance that the
assessments were arbitrary. Id. at 13.
In its September 2010 report, the OIG reviewed 27 complaints raised by fishermen during
its initial investigation. See Pls.’ Ex. P-3 at 3. Twenty-six of the complaints were from
fishermen in the Northeast Region, and all of the complaints reviewed concerned enforcement
under the Magnuson-Stevens Act. Id. Plaintiffs’ cases were not among the 27 complaints
reviewed by the OIG as part of this report. Based on its review, the OIG concluded that the fine
assessments and the number of charged violations in the Northeast Region appeared to be
excessive and intended to force respondents into settlement. Id. at 6. The OIG criticized one
senior enforcement attorney in the Northeast Region whose statements “foster[ed] a perception of
predisposition against certain fishermen and their counsel.” Id. at 7. This included an alleged
statement by the attorney referring to NOAA ALJs as “my judges.” Id. at 8. The OIG noted that
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“[s]uch written remarks, actions, and predispositions from a federal government attorney
empowered with virtually unchecked prosecutorial discretion constitute a series lack of judgment
and conduct unbecoming a federal government attorney charged with enforcing the law.” Id. at
9. The OIG identified 19 complaints as appropriate for further review and recommended that
NOAA establish an independent process to provide equitable relief in past enforcement cases
where appropriate; make appropriate changes to its regulations, policies, procedures, and
practices; and/or timely address and remedy employee performance or conduct matters. Id. at 11.
In response to the OIG’s September 2010 report, NOAA appointed a Special Master and
charged him with reviewing the 19 complaints that were identified by the OIG as appropriate for
further review as well as 104 additional complaints referenced by the OIG in its report.2 See Pls.’
Ex. P-4 (Mem. from Jane Lubchenco to OIG (Nov. 22, 2010)) at 2-3. According to Defendants,
the Secretary has decided that the Special Master will not review any complaint related to an
enforcement case that has been adjudicated in federal court.3 NOAA also changed its penalty
schedule so as to place the burden of justifying a particular civil penalty or sanction on NOAA
rather than on the respondent in cases presented to ALJs. See id. NOAA also reassigned several
personnel who were in GCEL’s Northeast Region office, including Charles Juliand, the attorney
who issued the NOVAs and NOPSs to Plaintiffs. See id. at 4. Plaintiffs contend that Mr. Juliand

2

The OIG spoke to 131 complainants in the course of its investigation. See Pl.’s Ex. P-3
at 3. Defendants concede that Duckworth was one of those complainants. See Defs.’ Opp’n at 7.
However, Duckworth’s complaint was not one of the 27 that was examined by the OIG in its
September 2010 report.
3

Plaintiffs contend that the Special Master is reviewing some cases that have been
adjudicated by a federal court. The Court finds that the scope of the Special Master’s review is
not material to the present motion; therefore, the Court need not resolve the parties’ dispute about
this issue.
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is the senior enforcement attorney referenced in the OIG’s September 2010 report. Plaintiffs
point to evidence that Mr. Juliand’s average penalty assessment for a NOVA was substantially
higher than the other enforcement attorneys in the Northeast Region. See Pls.’ Ex. 11 at 3.
Plaintiffs also cite to letters from members of Congress that indicate Mr. Juliand was removed as
a result of the OIG reports. See Pls.’ Ex. P-6 (10/27/10 Letter from Sens. Scott Brown and John
Kerry and Reps. Barney Frank and William Delahunt to Sec’y Gary Locke); Pls.’ Ex. P-12
(10/29/10 Letter from Sen. Olympia Snowe to Sec’y Gary Locke). Duckworth submitted an
affidavit to a Congressional oversight committee regarding what he perceived to be unfair
treatment from Mr. Juliand. See Pls.’ Ex. P-9.
Plaintiffs also refer to an OIG report that is not in the record pertaining to the alleged
destruction of documents at OLE. See Pls.’ Mem. at 9. Plaintiffs contend that Dale Jones was
removed as head of law enforcement for shredding documents and for his knowledge of others
shredding documents. Id. The exhibit Plaintiffs rely on to support this contention do suggest
that there was an OIG report relating to document shredding and that over 140 files may have
been destroyed, but that the OIG made no findings regarding the impacts on individual cases.
See Pls.’ Ex. P-8 at 8. Defendants assert that Dale Jones never had any supervisory responsibility
for Mr. Juliand or any other GCEL attorney. Defendants also assert that the document
destruction incident occurred in November 2009, well after Plaintiffs’ enforcement action was
completed by the agency. Plaintiffs do not dispute these assertions in their reply brief.
II. LEGAL STANDARD
Plaintiffs ask the Court for relief pursuant to Federal Rule of Civil Procedure 60(b). Rule
60(b) provides as follows:
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On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Plaintiffs argue that relief is warranted based on subsections (2), (3), (5),
and (6).
“[M]otions for relief under Rule 60(b) are not to be granted unless the movant can
demonstrate a meritorious claim or defense.” Lepkowski v. U.S. Dep’t of Treasury, 804 F.2d
1310, 1314 (D.C. Cir. 1986). In order to receive relief from a judgment under Rule 60(b)(2), the
movant must demonstrate that: (1) the newly discovered evidence is of facts that existed at the
time of trial or other dispositive proceeding; (2) the party seeking relief was justifiably ignorant
of the evidence despite due diligence; (3) the evidence is admissible and is of such importance
that it probably would have changed the outcome; and (4) the evidence is not merely cumulative
or impeaching. Epps v. Howes, 573 F. Supp. 2d 180, 185 (D.D.C. 2008) (citing Lightfoot v.
District of Columbia, 555 F. Supp. 2d 61, 66-67 (D.D.C. 2008)). “In order to prevail on a
motion under Rule 60(b)(3), [the movant] must show actual prejudice, that is, he must
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demonstrate that [the opposing party’s] conduct prevented him from presenting his case fully and
fairly.” Munoz v. Bd. of Trs. of Univ. of D.C., 730 F. Supp. 2d 62, 70 (D.D.C. 2010) (citation
omitted). To warrant relief under Rule 60(b)(5), a party must demonstrate that “‘a significant
change either in factual conditions or in law’ renders continued enforcement ‘detrimental to the
public interest.’” Horne v. Flores, 129 S. Ct. 2579, 2593 (2009) (quoting Rufo v. Inmates of
Suffolk County Jail, 502 U.S. 367, 384 (1992)). Motions under Rule 60(b)(6) should not be
granted unless the movant can show “extraordinary circumstances” justifying reopening of a final
judgment. Salazar ex rel. Salazar v. District of Columbia, 633 F.3d 1110, 1116 (D.C. Cir. 2011).
III. DISCUSSION
Plaintiffs contend that this Court should set aside its prior judgment because the final
report released by the OIG in September 2010 demonstrates that the enforcement attorney who
issued the NOVAs and NOPSs to Plaintiffs engaged in prosecutorial misconduct that
fundamentally tainted Plaintiffs’ enforcement action. However, the Court is not persuaded by
Plaintiffs’ argument, for at least two reasons. First, the September 2010 OIG report does not
contain any new evidence specifically relating to Plaintiffs’ enforcement action. Second, even
assuming that the enforcement attorney engaged in some form of misconduct, the ALJ
independently concluded that Plaintiffs had violated MSA regulations and the NOAA
Administrator did not adopt the penalties recommended by the enforcement attorney. Therefore,
the September 2010 OIG report does not call into question this Court’s finding that the final
agency action was supported by substantial evidence. See 16 U.S.C. § 1858 (“The findings and
order of the Secretary shall be set aside . . . if they are not found to be supported by substantial
evidence . . . .”).
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A.

The OIG Report Does Not Contain Evidence Specific to Plaintiffs’ Action

Plaintiffs contend that the OIG’s September 2010 report constitutes new evidence of
prosecutorial misconduct by the NOAA enforcement attorney who issued the NOVAs and
NOPSs at issue in this action. As an initial matter, the Court notes that the OIG report does not
identify the attorney whom it singled out for criticism, and Plaintiffs have failed to conclusively
demonstrate that it was in fact Mr. Juliand. However, even assuming arguendo that the OIG
report was criticizing certain actions taken by Mr. Juliand in the course of his enforcement duties,
the OIG report does not demonstrate any prosecutorial misconduct or bad faith that was taken
with respect to Plaintiffs’ enforcement action. Plaintiffs’ case was not among the 27 that was
reviewed by the OIG in its September 2010 report, and Plaintiffs have not identified any specific
evidence in the report that pertains to Plaintiffs’ case.
Plaintiffs rely heavily on Berger v. United States, 295 U.S. 78 (1935), where the Court
held that persistent misconduct by the prosecuting attorney during trial was prejudicial to the
defendant and required a new trial. As the Court explained, the prosecutor in Berger:
was guilty of misstating the facts in his cross-examination of witnesses; of putting
into the mouths of such witnesses things which they had not said; of suggesting by
his questions that statements had been made to him personally out of court, in respect
of which no proof was offered; of pretending to understand that a witness had said
something which he had not said and persistently cross-examining the witness upon
that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with
witnesses; and, in general, of conducting himself in a thoroughly indecorous and
improper manner.
295 U.S. at 84. Plaintiffs have not alleged that the enforcement attorney engaged in misconduct
during the course of the hearing before the ALJ. Rather, they argue that the enforcement attorney
abused his prosecutorial discretion by charging the offenses and recommending the maximum

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penalties in an effort to coerce a settlement. This Court is unaware of any authority requiring that
a judgment be set aside based on a enforcement attorney’s decision to exercise his discretion to
charge the most severe penalties permitted by law. Furthermore, Plaintiffs raised the issue of
excessive penalties in their motion for summary judgment, see Pls.’ Mot. for Summ. J. at 18-19,
30-37, and this Court addressed this issue thoroughly in its prior opinion, which was affirmed by
the Court of Appeals. The OIG reports do not add any new material evidence to Plaintiffs’
argument that the penalties imposed were excessive. Therefore, the OIG reports do not provide a
basis for the Court to grant relief under Rule 60(b).
The Court also finds that Plaintiffs have failed to provide the Court with any new
evidence regarding the destruction of documents relevant to their enforcement action that
warrants reconsideration of the Court’s prior judgment. Although the OIG apparently found that
there were some instances in which documents relating to enforcement actions were destroyed,
there is no evidence that this actually occurred with respect to Plaintiffs’ actions. Accordingly,
this is not a basis for granting relief under Rule 60(b).
B.

The Enforcement Attorney’s Recommended Penalties Were Not Adopted

Even if Plaintiffs could establish that the enforcement attorney’s recommended penalties
were excessive, that fact is irrelevant in this case because the agency ultimately did not adopt
those recommended penalties. Although the ALJ did adopt the penalties recommended by the
enforcement attorney,4 the NOAA Administrator independently reviewed the record and reduced
the penalties imposed by the ALJ. It is the NOAA Administrator’s decision—not the ALJ’s or

4

Under regulations in effect at the time, the ALJ was required to explain any departure
from the penalty recommended by the enforcement attorney.
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the enforcement attorney’s—that constitutes the agency’s final decision and that is subject to
judicial review. See 16 U.S.C. § 1858(b); 15 C.F.R. § 904.273(k). The NOAA Administrator
does not owe any deference to the ALJ’s findings or to the penalties recommended by the
enforcement attorney. See 15 C.F.R. § 904.273(b) (“The Administrator may elect to issue an
order to review the initial decision without petition and may affirm, reverse, modify or remand
the Judge’s initial decision.”); Kevin P. McDonald, 1995 WL 1311380, at n.8 (NOAA Oct. 23,
1995) (“If appealed to the Administrator for review, the ALJ’s determinations are not entitled to
any special deference from the agency, which is free to independently weigh the evidence and
draw its own conclusions.”). In this case, the record clearly demonstrates that the Administrator
made an independent decision on Plaintiffs’ appeal and imposed the penalties and sanctions she
deemed appropriate based on a variety of factors. Plaintiffs have not demonstrated that the
Administrator’s decision was unfairly influenced by any alleged bias or misconduct on the part of
the enforcement attorney.
Both this Court and the Court of Appeals have rejected Plaintiffs’ objections to the
NOAA Administrator’s assessment of penalties and sanctions. Plaintiffs have failed to present
this Court with any new evidence that undermines these rulings.
IV. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiffs have not presented the Court
with any new evidence that is of such importance that it probably would have changed the
outcome of the Court’s summary judgment ruling. The Court also finds that Plaintiffs have not
demonstrated any prejudice from the alleged misconduct of the enforcement attorney because
they had a full opportunity to present their case to the ALJ and appeal his decision to the NOAA
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Administrator. Plaintiffs have not provided the Court with any evidence demonstrating that
continuing to apply the Court’s judgment is inequitable, and the Court finds no other basis for
awarding relief under Rule 60(b). Accordingly, the Court shall DENY Plaintiffs’ Rule 60(b)
motion. An appropriate Order accompanies this Memorandum Opinion.

Date: September 6, 2011
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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