Ward v. Coleman

No. CIV-76-0303-E (W.D. Okla. August 26, 1976)

In an interlocutory order, the court denies plaintiff's motion to convene a three-judge court to hear its challenge to the Coast Guard's assessment of a $500 civil penalty pursuant to § 311(b)(6) of the Federal Water Pollution Control Act Amendments of 1972 in connection with an oil spill reported by plaintiff's company. The statutory provision does not violate the Fifth Amendment no matter whether the party challenging the penalty is a corporation or an individual. The assessment is a civil penalty included in an essentially regulatory scheme. Defendant's motion to dismiss is denied, but his alternative motion to consolidate the case with the government's action to enforce the penalty is granted.

Counsel for Plaintiff
Stephen Jones
Jones & Gungoll
P.O. Box 3339
Enid OK 73701
(405) 233-4321

Counsel for Defendants
David L. Russell, U.S. Attorney
O. B. Johnston, III, Asst. U.S. Attorney
4434 U.S. Courthouse
Oklahoma City OK 73102
(405) 236-2623

Bruce J. Chasan
Department of Justice
Washington DC 20530
(202) 737-8200

[6 ELR 20722]

Eubanks, J.

MEMORANDUM OPINION AND ORDER

Plaintiff's motion for reconsideration of this court's order conditionally denying the motion for a three-judge court is granted and the motion to convene a three-judge court is unconditionally denied. The court is of the opinion that no substantial constitutional challenge against the statute is presented. United States v. General Motors Corporation, 403 F. Supp. 1151 [6 ELR 20248] (Conn. 1975); United States v. Eureka Pipeline Company, 401 F. Supp. 934 [6 ELR 20088] (N.D. W. Va. 1975). See also United States v. Le Beouf Bros. Towing Company, Nos. 74-3140, 74-2849 [6 ELR 20708] (5th Cir. Aug. 16, 1976), rev'g 377 F. Supp. 588 (E.D. La. 1974). The statute does not run afoul of the Fifth Amendment whether the party challenging the penaity is a corporation or, as here, an individual. The penalty assessed is a civil penalty provided for by an essentially regulatory scheme. United States v. Sullivan, 274 U.S. 259 (1927). The regulations are not directed at a readily identifiable group inherently suspect of illegal activity, California v. Byers, 402 U.S. 424 (1971), and while not directed at the public at large, they are directed at a group which is able to pursue its activities without encountering situations mandating disclosures. See, e.g., S.E.C. v. Radio Hill Mines Company, 479 F.2d 4 (2d Cir. 1973), appeal of individual defendant; United States v. San Juan, 405 F. Supp. 686 (Vt. 1975).

Defendant's motion to dismiss is denied.

The alternative motion to consolidate this case with the government's enforcement action, No. CIV-76-0456, which was transferred to this court on August 23, 1976, is granted. No matter at issue by virtue of the Complaint herein is precluded from being raised in the Answer by way of defense.

[6 ELR 20723]

Answer in No. CIV-76-0456 to be filed within twenty (20) days of this date.

IT IS SO ORDERED.

The Clerk of the court is directed to mail a copy hereof to counsel for record.