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July 21, 2009

Federal judge backs auction

NOAA can't carry out shutdown of fish seller with court case pending

By Richard Gaines

BOSTON — A federal judge yesterday barred the federal fisheries law enforcement agency from imposing a shutdown penalty against the Gloucester Seafood Display Auction before final adjudication of the allegation in U.S. District Court.

National Oceanic and Atmospheric Administration law enforcement had announced the intended 10-day shutdown in June and trumpeted the action as if it were a fait accompli, based on the NOAA chief administrator's upholding of the agency's own finding through its civil administrative legal system.

The ruling leaves the auction, the linchpin business for the Gloucester and Gulf of Maine fishing industries, free to remain open in the foreseeable future, but does nothing to affect three different allegations which together could force the business to shut down for close to six months down the line.

In granting the auction's request for an injunction to halt a government move against the business, U.S. District Judge Douglas Woodlock caustically explored the problem of NOAA's desiring to impose penalties that precede judgment.

He concluded that "justice is done with the proper procedures are carried out," and that so long as a defendant appeals into the court system, a "final" ruling by an administrator cannot be final.

At one point near the end of the 75-minute hearing — while defining the public interest as insuring "a fair adjudication of the penalties" - Woodlock suggested that less than that is tantamount to "Gestapo justice."

Allegations of violations of the Magnuson Act that governs the nation's fisheries are dealt with in a civil administrative law system within NOAA, with trials adjudicated by Coast Guard judges. Only rarely — as the auction has done here — do accused parties fight cases into the actual U.S. District Court system.

To his challenge, the attorney for NOAA said the imposition of immediate sanctions against the auction was required because of "timing" and "perception."

"Timing? Not quite so," Woodlock answered. "Getting the job done free of any review is not surely a goal to be supported. Why (should it be) that the agency gets its way even if it isn't justified?"

At the same time, Woodlock ruled that, when and if the auction is found finally by the courts to have committed a "substantial fishery violation" that triggers an agreed-upon probation clause in a 2003 settlement of charges, the business would be required to submit to both penalties — 10 days which had been suspended, and 20 more for the triggering violation.

Woodlock did not set a date for the next hearing but filings are required within 45 days.

His announced ruling was long and complicated, settling the clash over an immediate shutdown, and setting the stage for a showdown hearing in a interlocked set of three cases dating from an initial allegation in 2000 and ranging into 2009, when the counsel's office of NOAA issued a 59-count Notice of Violation and Assessment or NOVA against the auction and as many as 24 boats that sell their catches through the auction.

Attorneys for both sides declined immediate comment after the hearing and judge's order.

The auction had gone to federal court to stop NOAA from imposing the agency's planned 10-day shutdown, sprung on the auction on June 19 through an orchestrated media campaign using the Boston Globe, which echoed claims by Andrew Cohen, the special agent in charge of investigations in the New England and Middle Atlantic regions, that the auction was being shut down for violating a probation agreement.

Even before the announcement effort to close the auction, the underlying case, cited as the probation violation, had been appealed into the federal system and Woodlock's courtroom.

In the meantime, as the final adjudication of the claimed probation agreement remains to be resolved, the judge, despite a half hour of questioning of NOAA's attorney, said he could not imagine how the government reached the position that it was justified in punishing the auction while the case was on appeal.

U.S. Attorney Anthony Geidt argued that the auction signed a settlement agreement that had the inviolability of a contract — and that it contained an agreement that a final administrative ruling, made in April by Jane Lubchenco just days after her confirmation as NOAA's chief administrator, was the final word on the matter.

When the judge noted that such a theory gave NOAA the right to punish defendants before a determination of whether they had committed a violation, Geidt, representing NOAA, argued in effect that "a contract is a contract" and its terms are irrelevant.

"Even if a court finds that (an administrative decision) is arbitrary and capricious?" the judge asked.

Yes, Geidt said.

But he also conceded that in a "tie" — a "jump ball" with a judge — "you win."

Discounted as unimportant to his ruling was what the judge described as a "press war" that has erupted from the chronic sparring between the auction and the federal fisheries law enforcement teams based in Gloucester.

The judge had demanded affidavits from all federal officials and employees who played a part in the orchestration of the June 19 effort to force the auction to close for 10 days, the penalty agreed to in the 2004 probation settlement.

The judge also put off a decision to allow Attorney General Martha Coakley to become an amicus participant in the case. She had visited the auction in the spring and recently her office had submitted a brief in support.

He wondered whether her representatives were present to be a "friend of the court or a friend of a party?"

He also was harshly critical of the legal writing of the 2004 agreement that both sides cited as justifying their conflicting views of what was meant — especially a 200-word paragraph that attempted to write a formula for the probation.

"It reads as if it were translated from Pennsylvania Dutch," the judge said.

The court clash came during a nationwide investigation into allegations of vindictive and excessive enforcement actions by the Department of Commerce Inspector General Todd Zinser, which was sought by the Massachusetts and other congressional delegations and state lawmakers responding to the latest NOAA allegations pressed against the auction in February.

Richard Gaines can be reached at rgaines@gloucestertimes.com

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Federal judge backs auction
by By Richard Gaines , , Tue Jul 21, 2009, 12:05 AM EDT
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