Velez-Amador v. United States Coast Guard

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RICARDO VELEZ AMADOR Plaintiff, v. UNITED STATES COAST GUARD, et al. Defendants

CIVIL No. 20-1724 (GLS)

United States District Court, D. Puerto Rico

March 28, 2023

OPINION AND ORDER

GISELLE LOPEZ SOLER, United States Magistrate Judge

This is an action to review a decision made by the United States Coast Guard (“USCG”) assessing a $1,000 penalty against Ricardo Velez-Amador (“Velez-Amador”) for the negligent operation of a vessel under 46 U.S.C. § 2302(a). Pending before the Court is the USGC's motion for summary judgment and Velez-Amador's cross motion for summary judgment. Docket Nos. 20 and 25. Because the USCG's determinations were based on substantial evidence in the record, the USCG's motion for summary judgment at Docket No. 20 is GRANTED and Velez-Amador's cross-motion for summary judgment is DENIED.

I. Uncontested Facts

Having reviewed the submissions by both sides and the documentary evidence in the record, the Court finds that the following facts are not in dispute, including those that establish this Court's jurisdiction to adjudicate this matter.

1. On July 25, 2017, the ANDREA GABRIELA, with 11 passengers on board, departed a boathouse in Lajas, Puerto Rico and sailed in the direction of the Bioluminescent Bay at La Parguera in Lajas. Docket No. 1 at ¶ 11; Defendants' Statement of Uncontested Facts (“DSUF”) No. 5; Plaintiff's Statement of Uncontested Facts (“PSUF”) No. 2.

2. The captain of the ANDREA GABRIELA was Ricardo Velez Amador. Docket No. 1 at ¶ 12.

3. The night was dark and there was no moon. Docket No. 1 at ¶ 13; DSUF No. 6; PSUF No. 8.

4. The ANDREA GABRIELA was running at a speed of approximately 10-11 knots per hour. Docket No. 1 at ¶ 15.

5. Velez-Amador was aware of other traffic in the area including that boats turn off their navigational lights in the Bioluminescent Bay to better observe the bioluminescence. DSUF No. 6; PSUF No. 25.

6. The ANDREA GABRIELLA collided against another vessel, the M/V LA NENA II. Docket No. 1 at ¶¶ 16-17.

7. The incident and collision between LA NENA II and the ANDREA GABRIELA occurred suddenly and unexpectedly. PSUF No. 26.

8. The USCG issued a Notice of Violation to Velez-Amador on December 4, 2017. Docket No. 26-3.

9. On March 6, 2018, the USCG Hearing Officer notified Velez-Amador a Preliminary Assessment Letter. Docket No. 26-3.

10. On May 8, 2018, the USCG Hearing Officer notified Velez-Amador a Final Assessment Letter, assessing a civil penalty of $1,000. Docket No. 21-21.

11. Velez-Amador requested a hearing, which was scheduled to be held on December 6, 2018. Velez-Amador was notified of the hearing through counsel. Docket No. 21-11.

12. On December 18, 2018, the USCG Hearing Officer reopened the case, set aside the Final Assessment Letter and made a final determination on the matter. The USCG Hearing Officer concluded that on the date at issue Velez-Amador was traveling too fast for the prevailing circumstances, did not maintain a proper look out, and failed to properly assess the risk of collision in violation of Rules 5, 6, and 7 of the International Regulations for Preventing Collisions at Sea (“COLREGS”). The USCG Hearing Officer found the charge proved and assessed a $1,000 civil penalty. Docket No. 21-11.

13. Requests to reopen by Velez-Amador were denied on February 5, 2019, and on March 19, 2019. Docket Nos. 25-12, 25-13.

14. On November 16, 2020, the USCG Commandant affirmed the decision of the Hearing Officer, including the imposition of the $1,000 civil penalty. Docket No. 21-1.

II. Standard of Review

Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is warranted when the moving party demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). However, “in cases involving review of agency action under the APA, the traditional Rule 56 standard does not apply due to the limited role of a court in reviewing the administrative record.” Bennett v. Murphy, 166 F.Supp.3d 128, 139 (D.Mass. 2016). “The function of the district court on motion for summary judgment in a case involving judicial review of final agency action under the Administrative Procedure Act is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” 10A CHARLES A. RIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2725 (4^th ed. 2022).

A court may only set aside an administrative action if it was arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence. 5 U.S.C. § 706(2) (A)-(E). The United States Supreme Court has described the “APA court/agency substantial evidence standard as requiring a court to ask whether a reasonable mind might accept a particular evidentiary record as adequate to support a conclusion. Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (quotations and citations omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Green Mountain Realty Corp. v. Leonard, 688 F.3d 40, 50 (1^st Cir. 2012) (quoting Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 58 (1^st Cir. 2001)). When there are two possible conclusions that can be drawn from the evidence, the reviewing court must defer to the administrative agency. Id.

III. Discussion

The Hearing Officer held that Velez-Amador was liable for the negligent operation of the vessel ANDREA GABRIELA pursuant to 46 U.S.C. § 2302(a). Section 2302(a) of title 46 establishes that “[a] person operating a vessel in a negligent manner or interfering with the safe operation of a vessel, so as to endanger the life, limb, or property of a person is liable to the United States Government for a civil penalty of not more than $5,000 in the case of a recreational vessel, or $25,000 in the case of any other vessel.” 46 U.S.C. § 2302(a). The Hearing Officer determined that Velez-Amador violated Rules 5, 6, and 7 of COLREGS. COLREGS is “a code of international rules of the road for maritime traffic throughout the world.” Juno SRL v. S/V Endeavour, 58 F.3d 1, 4 (1^st Cir. 1995). The Hearing Officer assessed a penalty of $1,000. See 33 C.F.R. § 1.07-65.

On appeal, the USGC Commandant determined that the Hearing Officer's decision was supported by substantial evidence and was not arbitrary or capricious. Docket No. 1-3 at 5.

Velez-Amador seeks judicial review and argues that the Hearing Officer's decision was not based on substantial evidence in the record and was arbitrary and capricious. Docket No. 25 at 10. Velez-Amador's challenges to the USCG's decision are anchored on the following: (1) Velez-Amador was not granted a hearing, (2) there was insufficient evidence to conclude that the LA NENA II had its navigation lights on, (3) there was insufficient evidence to conclude that Velez-Amador failed to maintain a proper lookout, and (4) there was insufficient evidence to conclude that the ANDREA GABRIELA was traveling at an unsafe speed. Having examined the entire record before the Court, the Court is convinced that no such errors occurred. The decision of the USCG Hearing Officer and on appeal is premised on substantial evidence in the record and there is no need to disturb the imposition of the $1,000 penalty against Velez-Amador.

1. Velez-Amador was afforded a hearing.

Velez-Amador argues that his due process rights were violated when he was denied a hearing. Docket No. 25 at 4-5. However, Velez-Amador waived his right to a hearing. On March 6, 2018, the Hearing Officer notified Velez-Amador the Preliminary Assessment Letter, in which he informed that Velez-Amador was subject to a $1,000 civil penalty and that a final decision would be made after Velez-Amador had an opportunity to respond. Docket No. 21-20. Velez-Amador was informed that he could submit evidence in lieu of a hearing or request a hearing in writing. Id. The letter expressly stated that failure to request a hearing within 30 days would result in a waiver of his right to a hearing. Id. On May 8, 2018, the Hearing Officer notified Velez-Amador his Final Assessment Letter, noting that he had failed to respond to the Preliminary Assessment Letter. Docket No. 21-21. It was not until May 22, 2018 (more than two months after the Preliminary Assessment Letter) that Velez-Amador requested a hearing for the first time. Docket No. 21-11. On December 6, 2018, the Hearing Officer convened a hearing at the request of Velez-Amador's attorney. Neither Velez-Amador nor his attorney appeared at the hearing. The Hearing Officer did not reschedule a new hearing but informed Velez-Amador that he could submit new evidence by December 17, 2018. See 33 C.F.R. § 1.07-25. The Hearing Officer considered the evidence submitted by Velez-Amador and made his final decision on December 18, 2018. Docket No. 21-11. Thereafter, the Hearing Officer denied Velez-Amador's request to reopen the matter by stating that “after thoroughly reviewing the information you provided, I find no reason to conduct yet another hearing because you have not provided any new evidence or raised any issues that would convince me to change my decision dated December 17, 2018.” Docket No. 2512. On appeal before the Commandant of the USCG, Velez-Amador did not raise the due process argument now before the Court. Docket No. 21-1.

Velez-Amador was afforded an opportunity for a hearing and failed to appear. He was also afforded an opportunity to present additional evidence, which was considered and rejected by the Hearing Officer. 33 C.F.R. § 1.07-25(a) (allows a party to present written evidence and arguments in lieu of a hearing). No more was required. Velez-Amador waived his right to a hearing when ...