TREVOR N. McFADDEN, U.S.D.J.
In 2015, Global Tropical Imports and Exports (Global) imported three-horned chameleons, black-throated monitors, spiny-tailed lizards, and other reptiles from Tanzania. Federal regulations require valid permits to import these reptiles. One of Globals permits was invalid, so the U.S. Department of the Interior (the Department) directed the company to pay a $ 15,000 penalty. Global now challenges that fine. Because the Court finds that the decision to fine Global complied with applicable laws, it will grant the Defendants summary judgment.
I.
A.
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is a multilateral treaty that seeks to protect plants and animals at risk of extinction. See 27 U.S.T. 1087 (1973). The United States is a party to the treaty, and Congress has incorporated it into domestic law through the Endangered Species Act (the ESA). See 16 U.S.C. § 1538(c)(1). The ESA makes it unlawful for any person subject to the jurisdiction of the United States to engage in any trade in any specimens contrary to the provisions of the Convention. 16 U.S.C. § 1538(c).
The ESA also authorizes the imposition of fines for violating its provisions or related regulations:
Any person who knowingly violates, and any person engaged in business as an importer or exporter of fish, wildlife, or plants who violates, any provision of this chapter, or ... any regulation issued in order to implement [subsections of the ESA] may be assessed a civil penalty by the Secretary of not more than $ 25,000 for each violation.
16 U.S.C. § 1540(a)(1). Based on this provision and 16 U.S.C. § 1538(c), the Department may impose a fine for CITES violations.
The treaty categorizes species into three appendices. Appendix I covers plants and animals threatened with extinction. CITES Art. II, 27 U.S.T. at 1092. Appendix II includes species that may soon become threatened with extinction absent strict regulations. Id. Appendix III covers species that member nations identify as requiring protection from exploitation. Id. The reptiles Global imported are Appendix II animals. J.A. at 258, ECF No. 24-1.
The import of any Appendix II species require[s] the prior presentation of either an export permit or a re-export certificate. CITES Art. IV, 27 U.S.T. at 1096. See also 50 C.F.R. § 23.20(e) (incorporating the same requirement). An export permit is valid only when it contains ... [t]he applicants signature if the CITES document includes a place for it. 50 C.F.R. § 23.23(c). See also CITES Art. VI, 27 U.S.T. at 1098 (An export permit shall contain the information specified in the model set forth in Appendix IV); CITES
App. IV, 27 U.S.T. at 1144 (model export permit requiring the signature of the applicant for the permit).
B.
In 2015, Global imported nearly 200 reptiles from Majoka Venom Supply (Majoka). J.A. at 257-58; 301. The U.S. Fish and Wildlife Service, an agency within the Department, declined to clear the shipment of reptiles when it arrived at the airport because one of the permits (# 28981) was not signed by the exporter, as required by 50 C.F.R. [§] 23.23(c). J.A. at 258. The agency found that, because of this missing signature, Global had imported the reptiles with an invalid permit and in violation of CITES. Id. It noted that the missing signature violated 50 C.F.R. § 23.23(c) (requiring an applicants signature where a CITES document has a place for it) and 16 U.S.C. § 1538(c)(1) (making it unlawful to violate the treaty). Id.
Based on this violation, the agency issued a Notice of Assessment, fining Global $ 15,000. J.A. at 228. The agency explained that [c]ommercial respondents, such as [Global], are held to a strict liability standard under the ESA. Therefore, whether [Global] knew of or intended to violate the ESA and CITES are immaterial. J.A. at 226. It added that Global has extensive experience in this area, and that the firm should therefore know that it is its responsibility to know the law and properly oversee its import. J.A. at 229. Global should also be well-versed in the CITES and the ESA, the agency reasoned, by way of its numerous (49) prior violations. Id. These prior violations showed not only culpability but a refusal to abide by serious, longstanding wildlife laws. Id.
Global appealed this decision to the Departments Office of Hearings and Appeals. See J.A. at 182. The company noted that it does not dispute there is a missing applicant signature on CITES permit 28981. J.A. at 187. Instead, it argued that Majoka was the applicant, and that the agency had found Global liable for Majokas mistake by relying impermissibly on a vicarious liability theory. Id.
An Administrative Law Judge (ALJ) rejected this argument. He found that the ESA makes it quite clear that a commercial violator is held to a strict liability standard for any and all violations, notwithstanding their source (in this case Majoka). J.A. at 46. He also found that Globals violation is made clear by another controlling regulation. Id. This regulation, 50 C.F.R. § 13.50, states that any person holding a permit under this subchapter B assumes all liability and responsibility for the conduct of any activity conducted under the authority of such permit. The ALJ noted that [i]t is Global that holds the permit. Thus, it is clear that under this regulation, Global assumes all liability for the invalid permit and for the failure of the exporter to properly sign the subject permit. J.A. at 47.
Global appealed again. The Departments Ad Hoc Board of Appeals upheld the ALJs decision. See J.A. at 7. It found that the ALJs legal conclusion is evident in the applicable statute and regulations. J.A. at 6. And it rejected Globals vicarious liability argument, finding instead that the applicable laws imposed strict liability on Global for the invalid permit. Id.
Exhausting its administrative remedies, Global filed this suit against the Departments Secretary and the U.S. Fish and Wildlife Service. The company argues that as the importer it cannot be held liable for the exporters error. Am. Compl. 4, ECF No. 5. Because there is no vicarious liability under the [applicable] statute [or] regulation, it contends, the Departments decision to impose a fine violated the Administrative Procedure Act (APA) and Globals substantive due process right and privilege. Id. at 4-6.
The Department maintains that the imposition of a fine was proper. Defs. Cross-Mot. for Summ. J. (Defs. Cross-Mot.) at 1, ECF No. 18. It argues that the ESA imposes strict liability on commercial importers and exporters that violate CITES, that Global is a commercial importer, and that it presented an invalid permit with its shipment of CITES-protected species. Id. Both parties have moved for summary judgment.
II.
Courts must hold unlawful and set aside agency action, findings, and conclusions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2). Courts must also set aside final agency actions that are contrary to a constitutional right, in excess of statutory jurisdiction, or unsupported by substantial evidence. Id.
The scope of this review is narrow and a court is not to substitute its judgment for that of the agency. Motor Vehicle Mfrs. Assn v. State Farm Mutual Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Rather, it must determine whether the agency examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made. Id. (quoting Burlington Truck Lines v. United States , 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ). An agencys decision is arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id.
As the party challenging an agencys action as arbitrary and capricious, Global bears the burden of proof. Lomak Petroleum, Inc. v. Fed. Energy Reg. Commn , 206 F.3d 1193, 1198 (D.C. Cir. 2000). The arbitrary and capricious review standard is a [h]ighly deferential one that presumes the validity of agency action. Hagelin v. Fed. Election Commn , 411 F.3d 237, 242 (D.C. Cir. 2005). It is not enough for the agency decision to be incorrect; so long as it has some rational basis, the court is bound to uphold the decision. New Life Evangelistic Ctr. v. Sebelius , 753 F.Supp.2d 103, 113 (D.D.C. 2010).
In their application to the requirement of factual support[,] the substantial evidence test and the arbitrary or capricious test are one and the same. Butte County v. Hogen , 613 F.3d 190, 194 (D.C. Cir. 2010). So an agency decision may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view. Morall v. DEA , 412 F.3d 165, 176 (D.C. Cir. 2005) (citation omitted). Courts may reverse an agency action only when the record is so compelling that no reasonable factfinder could fail to find the contrary. Orion Reserves Ltd. Pship v. Salazar , 553 F.3d 697, 704 (D.C. Cir. 2009).
Summary judgment "serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and [is] otherwise consistent with the APA
standard of review." Alston v. Lew , 950 F.Supp.2d 140, 143 (D.D.C. 2013).
III.
This case turns on a single question: does the law impose strict liability on Global for its failure to present a valid permit for the lizards and chameleons it imported? Unfortunately for Global, the answer-yes-is hidden in plain sight.
Consider again the ESA. The Courts inquiry begins with the statutory text and ends there as well if the text is unambiguous. BedRoc Ltd., LLC v. United States , 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004). The ESA states that [a]ny person who knowingly violates , and any person engaged in business as an importer or exporter of fish, wildlife, or plants who violates , any provision of this chapter ... may be assessed a civil penalty. 16 U.S.C. § 1540(a)(1) (emphasis added). By its plain terms, the ESA authorizes fines for two types of transgressors: (1) anyone who knowingly violates the law, and (2) commercial importers and exporters who violate the law, regardless of their intent. So while others may slither out of liability for violations due to ignorance or inadvertence, commercial importers and exporters may not.
Global concedes that it is a commercial importer. See, e.g. , Pl.s Mot. for Summ. J. (Pl.s Mot.) at 4, ECF No. 17-2 (Globals legal position is that being the importer, at arms length in the business transaction ...); Pl.s Opp. to Defs. Cross-Mot. (Pl.s Opp.) at 2, ECF No. 21 (There is no dispute that Global is the importer and Majoka is the exporter; significantly, these are two (2) distinct business entities.). So if the firm violated the ESA, it was strictly liable for the violation, and the Departments decision to impose a fine was appropriate.
By failing to present a valid permit, Global did violate the ESA. Once more, the plain terms of the applicable laws are instructive. The ESA makes a violation of a CITES provision a violation of federal law. 16 U.S.C. § 1538(c). CITES mandates that importing an Appendix II animal require[s] the prior presentation of an export permit. CITES Art. IV, 27 U.S.T. at 1096 ; 50 C.F.R. § 23.20(e). A permit is valid only when it contains ... [t]he applicants signature if the CITES document includes a place for it. 50 C.F.R. § 23.23(c). And any person holding a permit under this subchapter B assumes all liability and responsibility for the conduct of any activity conducted under the authority of such permit. 50 C.F.R. § 13.50.
Global does not argue that Permit # 28981 was valid. See, e.g. , Pl.s Mot. at 4 (admitting that one (1) CITES form [was] unsigned). When it tried to import the reptiles without a valid permit, the company violated the law. And because Global was strictly liable for this violation, the Departments decision to impose a fine was permissible.
Globals arguments to the contrary fail to tip the scales in its favor. Common to each of these contentions is Globals mistaken belief that the Department held the company liable for Majokas failure to sign the permit. It did not. Rather, the Department found that Global violated the law when it presented an invalid permit while seeking to import reptiles.
The company asserts, for example, that it was not the party responsible to sign the CITES form and was not responsible for reviewing or approving the exporting from Tanzania. Pl.s Mot. at 4. True, Majoka was supposed to sign the permit and failed to do so. See J.A. at 239. But, per the unambiguous dictates of 50 C.F.R. § 13.50, Global bore the ultimate responsibility of ensuring that it presented a valid permit for importing the reptiles.
Globals claims are analogous to an argument heard and rejected in traffic courts across the country. In many states, speeding is a strict liability offense. See, e.g. , State v. Brown , 107 Wis.2d 44, 318 N.W.2d 370 (1982) ; People v. Caddy , 189 Colo. 353, 540 P.2d 1089 (1975). When caught speeding, drivers often blame unintended acceleration caused by their cruise control devices, suggesting that the law should not hold them responsible for a design flaw by the car manufacturer. See, e.g. , State v. Baker, 1 Kan.App.2d 568, 571 P.2d 65 (1977) ; State v. Packin , 107 N.J.Super. 93, 257 A.2d 120 (N.J. Super. Ct. App. Div. 1969). But as one court observed, a driver who entrusts his car to the control of an automatic device is driving the vehicle and is no less responsible for its operation if the device fails to perform a function which under the law he is required to perform. Packin , 257 A.2d at 121.
As the importer, Global was driving the business transaction. And it was strictly liable for any resulting legal violations. Because it sought to import animals covered by CITES into the United States, the company was required by law to present a valid permit. See 50 C.F.R. § 23.20(e). That it was Majokas action that rendered the permit invalid is irrelevant. Global was no less responsible for the permit than if the company had itself made an error on the form. See 50 C.F.R. § 13.50.
Global also argues that the Department inappropriately relied on a vicarious liability theory to hold the company liable for Majokas actions. Pl.s Mot. at 6. Not so. As Global notes, vicarious liability is liability that a supervisory party bears for actionable conduct of a subordinate or associate because of the relationship between the two parties. Pl.s Opp. at 5 (quoting Blacks Law Dictionary 927 (7th ed. 1999) ). Vicarious liability rules ordinarily require a principal-agent or employer-employee relationship. See Meyer v. Holley , 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003).
The Department did not find or even allege such a relationship. Nor did it suggest that Global was vicariously liable for another partys violation of the applicable laws. For instance, the Notice of Assessment states that [c]ommercial respondents, such as Respondent, are held to a strict liability standard under the ESA.... Therefore, Respondent is liable. J.A. 226 (emphasis added). Similarly, the ALJ noted that it is Global that holds the permit and [c]onsequently, by regulatory imputation, the violator for this failure is not Majorca [sic]; rather, the legal violator is Global. J.A. 47. In other words, because it held the export permit, Global became strictly liable for the ensuing violation. J.A. 47.
Next, the company argues that the Court should not use judicial gap-findings to read into the ESA a vicarious liability provision. Pl.s Mot. at 9. While the ESA does not specifically address the Departments ability to impose fines based on vicarious liability, it is unambiguous on strict liability. Thus, the Court need not read any language into the statute to confirm that the Departments decision was permissible and sufficiently justified.
The rest of Globals arguments fail for the same reasons. It claims that the Department violated the companys substantive due process right and privilege by imputing a legal wrong committed by Majoka and assessing a civil penalty upon Global. Compl. 5 (alleging violations of the Constitution and of 5 U.S.C. § 706(2)(B) ). It also suggests that the fine was unsupported by substantial evidence and unwarranted by the facts. Compl. 6 (alleging violations of 5 U.S.C. § 706(2)(E-F) ).
But again, nothing in the record supports the contention that the Department imposed vicarious liability on the firm. Instead, the evidence shows that the Department faulted Global for its own act-trying to import the reptiles without a valid form. The ESA and the Departments regulations authorized this finding. And in assessing the fine, the Department considered the CITES permit, the applicable law, and Globals arguments. See, e.g. , J.A. 224-240. Its decision was appropriate.
Finally, Global requests joinder of Majoka under Fed. R. Civ. P. 19(a)(1)(B)(ii). Pl.s Mot. at 12. The company believes that since Majoka was the applicant of the permit, and since it was the party that failed to sign the form, it is a required party in the litigation. Id. at 12-13.
This argument misunderstands Rule 19. That rule would require adding Majoka to the case only if Majokas absence would create a substantial risk that Global would incur inconsistent obligations because of Majokas interest in the case. Fed. R. Civ. P. 19(a). But Majoka has no interest at stake. As explained above, the Department did not fine Global because of Majokas failure to sign the permit. It imposed the penalty because of Globals failure to present a valid permit at the airport. More, Global is the plaintiff. As the master of its Complaint, Global could have named Majoka as a co-defendant if it so wished. Rule 19 is not the appropriate tool for arguing that the Department ought to have assessed its penalty against Majoka.
IV.
In sum, the Departments decision to impose a fine on Global was reasonable, sufficiently explained, and permissible under applicable law. For all these reasons, the Defendants Cross-Motion for Summary Judgment will be granted. A separate order will issue.
Citations to the Joint Appendix reference the Bates numbers located on the bottom of each page.
The Court has federal question jurisdiction over this case under 28 U.S.C. § 1331.
Because the text of the statute is clear, the Court need not consider other indicia of Congresss intent. See Lamie v. U.S. Trustee , 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (When the statutes language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms.) (cleaned up).
Subchapter B includes the Departments regulations that govern, among other things, permit procedures for the exportation and importation of wildlife and plants. See 50 C.F.R. §§ 10.1 - 24.12.
The Court rejects Globals argument that the Departments briefing violated Local Civil Rule 7. Global suggests that the Department failed to file a statement of material facts. Pl.s Opp. at 1-2. But no such statement is required in cases, like this one, in which judicial review is based solely on the administrative record. LCvR 7(h)(2).
Although they filed no counterclaims, the Defendants ask the Court to order Global to pay the civil penalty and any applicable interest. See Defs. Cross-Mot. at 13. The Court declines to do so. The Departments procedures for assessing civil penalties are set forth in 50 C.F.R §§ 11.11 -11.17. These regulations provide that if Global fails to pay the penalty within 20 days after the Departments decision becomes effective, the Solicitor of the Department may request the Attorney General to institute a civil action in the U.S. District Court to collect the penalty. 50 C.F.R. § 11.17. An order from this Court before such a civil action is instituted would circumvent the Departments regulations.