UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

GLOBAL TROPICAL IMPORTS AND 

EXPORTS LLC,

Plaintiff,

v. 

DAVID BERNHARDT, in his official 

capacity as Acting United States Secretary 

of the Interior1 et al.,

Defendants.

Case No. 1:18-cv-01341 (TNM)

MEMORANDUM OPINION

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 Global’s 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. 

 1

 Mr. Bernhardt assumed the role of Acting Secretary of the Interior upon the resignation of thenSecretary Ryan Zinke on January 2, 2019. He therefore automatically replaced Mr. Zinke as a named 

defendant per Federal Rule of Civil Procedure 25(d). 
2

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. 24-1.2

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 applicant’s 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 

 2

 Citations to the Joint Appendix reference the Bates numbers located on the bottom of each page. 
3

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 applicant’s 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 Department’s 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 
4

that the agency had found Global liable for Majoka’s 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 

Global’s “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 Department’s Ad Hoc Board of Appeals upheld the ALJ’s 

decision. See J.A. at 7. It found that “the ALJ’s legal conclusion is evident in the applicable 

statute and regulations.” J.A. at 6. And it rejected Global’s “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 Department’s 

Secretary and the U.S. Fish and Wildlife Service. The company argues that “as the importer it 

cannot be held liable for the exporter’s error.” Am. Compl. 4, ECF No. 5. Because “there is no 

vicarious liability under the [applicable] statute [or] regulation,” it contends, the Department’s 

decision to impose a fine violated the Administrative Procedure Act (“APA”) and “Global’s 

substantive due process right and privilege.” Id. at 4-6.
5

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 CITESprotected species.” Id. Both parties have moved for summary judgment.3

 

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. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 

(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 (1962)). An agency’s 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. 

 3

 The Court has federal question jurisdiction over this case under 28 U.S.C. § 1331.
6

As the “party challenging an agency’s action as arbitrary and capricious,” Global “bears 

the burden of proof.” Lomak Petroleum, Inc. v. Fed. Energy Reg. Comm’n, 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 Comm’n, 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. P’ship 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 Court’s 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 
7

(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.4

 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 (“Global’s legal position is that being the importer, at arm’s 

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 Department’s 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 applicant’s 

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 

 4

 Because the text of the statute is clear, the Court need not consider other indicia of Congress’s intent. 

See Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (“When the statute’s 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). 
8

conduct of any activity conducted under the authority of such permit.” 50 C.F.R. § 13.50.5 

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 Department’s decision to impose a fine was permissible. 

Global’s arguments to the contrary fail to tip the scales in its favor.6 Common to each of 

these contentions is Global’s mistaken belief that the Department held the company liable for 

Majoka’s 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.

Global’s 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, 318 

N.W.2d 370 (Wis. 1982); People v. Caddy, 540 P.2d 1089 (Colo. 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, 

 5

 Subchapter B includes the Department’s 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. 

6

 The Court rejects Global’s argument that the Department’s 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). 
9

e.g., State v. Baker 571 P.2d 65, (Kan. 1977); State v. Packin, 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 Majoka’s 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 Majoka’s 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 Black’s 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 

(2003).

The Department did not find or even allege such a relationship. Nor did it suggest that

Global was vicariously liable for another party’s 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 
10

“[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 Department’s 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 

Department’s decision was permissible and sufficiently justified. 

The rest of Global’s arguments fail for the same reasons. It claims that the Department 

violated the company’s “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 

Department’s regulations authorized this finding. And in assessing the fine, the Department 

considered the CITES permit, the applicable law, and Global’s 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. 
11

This argument misunderstands Rule 19. That rule would require adding Majoka to the 

case only if Majoka’s absence would create a “substantial risk” that Global would incur 

“inconsistent obligations” because of Majoka’s 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 Majoka’s failure to sign the permit. It imposed the penalty because of Global’s 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 Department’s 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.

7

 A separate order will issue.

Dated: February 15, 2019 TREVOR N. McFADDEN, U.S.D.J.

 7

 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 

Department’s 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 Department’s 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 Department’s regulations.