By Richard Gaines
Staff Writer
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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.
The continued use of the Coast Guard administrative law judge system by NOAA seems to violate a May 17 order by Commerce Secretary Gary Locke, who announced an end of the use of the Coast Guard system by the National Oceanic and Atmospheric Administration.
"I have directed NOAA to terminate the Coast Guard Administrative Law Judge contract in order to reset NOAA's relationship with the regulated community," Locke wrote in his Secretarial Decision Memorandum. That document explained the rationales for repaying fines in 13 New England cases brought to light by Inspector General Todd Zinser, and examined in detail by Special Judicial Master Charles B. Swartwood III.
Each of the defendants in those cases — including the Ciulla family's Gloucester auction and Yacubian, who lost the family farm in his attenuated cases and who now resides in Florida — were also issued apologies.
"From my perspective," said Paul Muniz of Burns & Levenson, which has represented the Gloucester auction against NOAA, "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," said New Bedford Mayor Scott Lang. "It doesn't seem in tune with their claims."
"Ignoring the directive by the secretary to end ALJ oversight over these cases shows NOAA to be a rogue agency," said Gloucester Mayor Carolyn Kirk. "Reassigning the same judges is a slap in the face to the Secretary, and calls into question the very trustworthiness of NOAA officials."
Yacubian's lawyer, Pamela Lafreniere, declined comment.
According to Swartwood's finding, the auction was the subject of "selective enforcement by NOAA, there was little, if any credible evidence" that the auction was "engaged in any pattern of intentional, illegal behavior."
NOAA agents spent more than a year trying and failing to prove the auction was operating a blackmarket while running an open, self-reporting public auction.
This spring, Locke decided on a combination of forgiveness and reparation of just over $100,000 in fines arising from a March 2010 settlement of the three cases the agency had brought against the auction.
Still, a month after the apology and reparations were announced from Gloucester by NOAA Administrator Jane Lubchenco together with Locke via a telephone hookup, Lubchenco disappointed and surprised the industry by insisting that the auction close for 15 days based on the settlement agreement, which explicitly insulated the auction from liability and which Locke did not alter.
Based on documents it had obtained, Saving Seafood reported that Administrative Law Judge Parlen L. McKenna was reassigned on June 27 by Coast Guard Chief Judge Joseph N. Ingolia "to oversee efforts to recover legal fees and other expenses incurred by Capt. Yucabian during his lengthy defense against NOAA's charges of overfishing in closed waters."
The assignment was especially questionable because of Swartwood's finding of the appearance and possibility of a conflict of interest between McKenna and the enforcement lawyers in the case, who were scheduled to travel together to a conference in Kuala Lumpur, Malaysia, at the time the judge issued his ruling. Swartwood found that McKenna's ruling ignored a federal judge's decision to vacate the penalties imposed; in the face of the federal judge's decision, McKenna reinstated the original penalties.
According to Bourge's reporting on Saving Seafood:
"Numerous Freedom of Information Act requests have yielded documents suggesting, but not quite confirming, that the (Kuala Lampur) 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 ... 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," Bourge wrote, provided additional background on the Kuala Lumpur conference and revealed that Judge McKenna and. 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 the General Council denied the request," Bourge wrote.
Last month, Saving Seafood reported at length on McKenna's highly unusual order in an unrelated case. There, he defended himself against Swartwood's charges of wrongdoing in the Yacubian case.
The Swartwood report on the Yacubian case concludes that there was "credible evidence that money was NOAA's motivating objective in this case."
In the report, the thought comes behind a redacted paragraph that Lafreniere has sought to obtain under the FOIA.
Brudzinski's adjudication of the last of the auction cases, brought in February 2009 and settled a year later as part of the overall final settlement, has been controversial because of his unwillingness to allow the release of documents ordered delivered to the auction lawyers as part of discovery.
The letter to Locke by Reps. Tierney and Frank quotes Commerce Department Chief Counsel Cameron Kerry — brother of U.S. Sen. John Kerry — as concluding that the Secretary is powerless to influence how the Coast Guard ALJ system makes its decisions.
Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.
