John Van Salisbury, Personally and Trading As F/v Major Expense v. United States of America

*Honorable A. Wallace Tashima, Senior Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 09-1586
JOHN VAN SALISBURY,
PERSONALLY AND TRADING AS
F/V MAJOR EXPENSE
v.
UNITED STATES OF AMERICA;
SECRETARY, UNITED STATES
DEPARTMENT OF COMMERCE / NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA)
JOHN VAN SALISBURY,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-07-cv-04881)
District Judge: Honorable Eduardo C. Robreno
Submitted Under Third Circuit LAR 34.1(a)
February 10, 2010
Before: SLOVITER, ROTH, and TASHIMA, Circuit Judges*
(Filed: March 8, 2010)

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We have jurisdiction over this appeal pursuant to 281
U.S.C. § 1291.
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OPINION
SLOVITER, Circuit Judge.
John Van Salisbury appeals a $152,500 penalty assessed by the United States
Department of Commerce, National Oceanic and Atmospheric Administration
(“NOAA”), for civil violations of the Magnuson-Stevens Fishery Conservation and
Management Act (“Magnuson-Stevens Act”), 16 U.S.C. §§ 1801-1882. The District
Court affirmed the assessment on cross motions for summary judgment. Van Salisbury
claims the assessment was excessive and disproportionate to the wrongdoing, in violation
of the Eighth Amendment Excessive Fines Clause. We will affirm.1
I.
Because we write primarily for the parties, our recitation of the facts is brief. Van
Salisbury, a licensed New Jersey lobsterman, owns and operates the commercial fishing
vessel Major Expense. In August 2004, after numerous complaints that Van Salisbury
tampered with, damaged, and stole lobsters and fishing gear owned by other lobstermen,
NOAA special agents opened an investigation and planned a sting operation; they placed
40 uniquely marked lobsters in traps adjacent to Van Salisbury’s. A search of the Major
Expense revealed five uniquely marked lobsters in Van Salisbury’s catch.

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Van Salisbury frames his argument as one of due process,2
but relies on Eighth Amendment jurisprudence, which is
applicable.
Van Salisbury also makes a conclusory allegation that the
District Court denied due process by granting summary judgment
without a hearing. This allegation is unaccompanied by argument
and is otherwise without merit. See, e.g., AD/SAT v. Associated
Press, 181 F.3d 216, 226 (2d Cir. 1999) (“a district court’s decision
whether to permit oral argument [on motions for summary
judgment] rests within its discretion”).
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NOAA brought an administrative action against Van Salisbury under the
Magnuson-Stevens Act for penalties and sanctions. Following a two-day hearing, a
NOAA administrative law judge determined that Van Salisbury violated 16 U.S.C. §§
1857(1)(K)(i) (prohibiting removal of and damage to protected fishing gear) and
1857(1)(K)(ii) (prohibiting theft of fish from protected fishing gear). The administrative
law judge assessed a civil penalty of $152,500. Van Salisbury brought an action in the
District Court under 16 U.S.C. § 1858(b) for judicial review; the District Court affirmed
the assessment on cross motions for summary judgment.
The sole issue on appeal is whether the assessment was excessive in violation of
the Eighth Amendment to the United States Constitution.2
II.
“Our review of a district court’s grant of summary judgment in favor of an
administrative agency is de novo.” Allegheny Def. Project, Inc. v. United States Forest
Serv., 423 F.3d 215, 229 (3d Cir. 2005). An agency’s determination will not be reversed

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unless it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A).
The Eighth Amendment to the United States Constitution provides, “Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. CONST. amend. VIII. A monetary assessment imposed as
punishment is a “fine” within the meaning of the Excessive Fines Clause. See, e.g.,
United States v. Bajakajian, 524 U.S. 321, 327-34 (1998) (punitive forfeiture subject to
Excessive Fines Clause scrutiny). Fines, like punitive forfeitures, are unconstitutionally
excessive if “grossly disproportional to the gravity of a defendant’s offense.” Id. at 334.
An evaluation of proportionality must take into account legislative “judgments about the
appropriate punishment for an offense . . . .” Id. at 336.
Van Salisbury violated the Magnuson-Stevens Act twice; each violation was
punishable in August 2004, when the violations occurred, by a civil penalty of $120,000.
16 U.S.C. § 1858(a); Civil Monetary Penalties; Adjustment for Inflation, 65 Fed. Reg.
65260 (2000) (codified at 15 C.F.R. § 6.4). The administrative law judge assessed a
penalty of $152,500 for both violations, a substantial amount but well below the statutory
maximum. Applying Bajakajian, the administrative law judge considered that Van
Salisbury’s “acts were not accidental or unintentional” and that his prior citation for
removing lobster traps rendered him “acutely aware of the proscriptions concerning
fishing gear and lobsters.” Supp. App. at 19. In assessing the gravity of Van Salisbury’s

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offenses, the administrative law judge considered other factors, including economic harm
to other lobstermen and documented potential for violent conflicts at sea. We conclude
the civil penalty was not excessive; the agency’s assessment was proper.
III.
For the reasons stated above, we will affirm the District Court’s ruling.
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