[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
REVIEWING THE COAST GUARD'S ADMINISTRATIVE LAW SYSTEM
=======================================================================
(110-64)
HEARING
BEFORE THE
SUBCOMMITTEE ON
COAST GUARD AND MARITIME TRANSPORTATION
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JULY 31, 2007
__________
Printed for the use of the
Committee on Transportation and Infrastructure
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
JAMES L. OBERSTAR, Minnesota, Chairman
NICK J. RAHALL, II, West Virginia JOHN L. MICA, Florida
PETER A. DeFAZIO, Oregon DON YOUNG, Alaska
JERRY F. COSTELLO, Illinois THOMAS E. PETRI, Wisconsin
ELEANOR HOLMES NORTON, District of HOWARD COBLE, North Carolina
Columbia JOHN J. DUNCAN, Jr., Tennessee
JERROLD NADLER, New York WAYNE T. GILCHREST, Maryland
CORRINE BROWN, Florida VERNON J. EHLERS, Michigan
BOB FILNER, California STEVEN C. LaTOURETTE, Ohio
EDDIE BERNICE JOHNSON, Texas RICHARD H. BAKER, Louisiana
GENE TAYLOR, Mississippi FRANK A. LoBIONDO, New Jersey
ELIJAH E. CUMMINGS, Maryland JERRY MORAN, Kansas
ELLEN O. TAUSCHER, California GARY G. MILLER, California
LEONARD L. BOSWELL, Iowa ROBIN HAYES, North Carolina
TIM HOLDEN, Pennsylvania HENRY E. BROWN, Jr., South
BRIAN BAIRD, Washington Carolina
RICK LARSEN, Washington TIMOTHY V. JOHNSON, Illinois
MICHAEL E. CAPUANO, Massachusetts TODD RUSSELL PLATTS, Pennsylvania
JULIA CARSON, Indiana SAM GRAVES, Missouri
TIMOTHY H. BISHOP, New York BILL SHUSTER, Pennsylvania
MICHAEL H. MICHAUD, Maine JOHN BOOZMAN, Arkansas
BRIAN HIGGINS, New York SHELLEY MOORE CAPITO, West
RUSS CARNAHAN, Missouri Virginia
JOHN T. SALAZAR, Colorado JIM GERLACH, Pennsylvania
GRACE F. NAPOLITANO, California MARIO DIAZ-BALART, Florida
DANIEL LIPINSKI, Illinois CHARLES W. DENT, Pennsylvania
DORIS O. MATSUI, California TED POE, Texas
NICK LAMPSON, Texas DAVID G. REICHERT, Washington
ZACHARY T. SPACE, Ohio CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii JOHN R. `RANDY' KUHL, Jr., New
BRUCE L. BRALEY, Iowa York
JASON ALTMIRE, Pennsylvania LYNN A WESTMORELAND, Georgia
TIMOTHY J. WALZ, Minnesota CHARLES W. BOUSTANY, Jr.,
HEATH SHULER, North Carolina Louisiana
MICHAEL A. ARCURI, New York JEAN SCHMIDT, Ohio
HARRY E. MITCHELL, Arizona CANDICE S. MILLER, Michigan
CHRISTOPHER P. CARNEY, Pennsylvania THELMA D. DRAKE, Virginia
JOHN J. HALL, New York MARY FALLIN, Oklahoma
STEVE KAGEN, Wisconsin VERN BUCHANAN, Florida
STEVE COHEN, Tennessee
JERRY McNERNEY, California
VACANCY
(ii)
?
SUBCOMMITTEE ON COAST GUARD AND MARITIME TRANSPORTATION
ELIJAH E. CUMMINGS, Maryland, Chairman
GENE TAYLOR, Mississippi STEVEN C. LaTOURETTE, Ohio
RICK LARSEN, Washington DON YOUNG, Alaska
CORRINE BROWN, Florida HOWARD COBLE, North Carolina
BRIAN HIGGINS, New York WAYNE T. GILCHREST, Maryland
BRIAN BAIRD, Washington FRANK A. LoBIONDO, New Jersey
TIMOTHY H. BISHOP, New York TED POE, Texas
VACANCY JOHN L. MICA, Florida
JAMES L. OBERSTAR, Minnesota (Ex Officio)
(Ex Officio)
(iii)
CONTENTS
Page
Summary of Subject Matter........................................ vi
TESTIMONY
Dash, Professor Abraham, Professor Emeritus, University of
Maryland School of Law......................................... 8
Denson, Judge Rosemary, Former Coast Guard Administrative Law
Judge.......................................................... 8
Fitzpatrick, Judge Peter, Former Coast Guard Administrative Law
Judge.......................................................... 8
Hewig, William, Attorney at Law and Principal, Kopelman and
Paige, P.C. Boston, Massachusetts.............................. 8
Jones, Hon. Walter B., a Representative in Congress from the
State of North Carolina........................................ 6
Massey, Judge Jeffie, Former Coast Guard Administrative Law Judge 8
Salerno, Rear Admiral Brian, Director of Inspection and
Compliance, United States Coast Guard, Washington, D.C......... 48
Sparks, Captain Thomas, Commanding Officer, Marine Safety Unit,
United States Coast Guard, Port Arthur, Texas.................. 48
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Cummings, Hon. Elijah E., of Maryland............................ 61
Jones, Hon. Walter B., of North Carolina......................... 64
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Dash, Professor Abraham.......................................... 65
Denson, Judge Rosemary........................................... 69
Fitzpatrick, Judge Peter......................................... 83
Hewig, William................................................... 91
Massey, Judge Jeffie............................................. 99
Salerno, Rear Admiral Brian...................................... 107
SUBMISSIONS FOR THE RECORD
Denson, Judge Rosemary, Former Coast Guard Administrative Law
Judge, ``Long-Standing Insidious and Vindictive Culture of the
CALJ Office, Which Has Resulted in the Continuous Violation of
the Administrative Procedures Act''............................ 74
Jones, Hon. Walter B., a Representative in Congress from the
State of North Carolina, written statement of Sean McKeon,
President, North Carolina Fisheries Association................ 113
LaTourette, Hon. Steven C., a Representative in Congress from the
State of Ohio:
U.S.C. 49 - Transportation - Subtitle A - Office of the
Secretary of Transportation - Part 40 - Procedures for
Transportation Workplace Drug and Alcohol Testing Programs... 29
National Transportation Safety Board judgement of June 11, 2003
in the case of Thomas H. Collins v. Christopher Dresser,
opinion and order............................................ 31
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REVIEW OF THE COAST GUARDS ADMINISTRATIVE LAW SYSTEM
----------
Tuesday, July 31, 2007
House of Representatives,
Committee on Transportation and Infrastructure,
Subcommittee on Coast Guard and Maritime Transportation,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:00 a.m., in
Room 2167, Rayburn House Office Building, Hon. Elijah E.
Cummings [Chairman of the Subcommittee] presiding.
Mr. Cummings. Ladies and gentlemen, we will call this
hearing to order.
Today, the Subcommittee will examine the Coast Guard's
administrative law system. This system adjudicates cases in
which the Coast Guard personnel allege misconduct or negligence
on the part of a mariner and seek the temporary suspension or
permanent revocation of a mariner's professional credentials.
The Coast Guard fairly emphasizes that these cases are brought
against the credential and not against an individual mariner,
and that the overriding purpose of these actions is to ensure
safety in our Nation's maritime transportation profession.
Safety is a critical goal, and mariners who are unsafe or
who use drugs should not be on our Nation's waterways. However,
the suspension and revocation of a credential or a license is
not a matter that is to be taken lightly in any professional
industry. Without a credential, a mariner simply cannot work.
Thus, in any administrative hearing, a mariner sees hanging in
justice's balance not just a piece of paper, but the ability to
support a family, to pay a mortgage and to get ahead in life.
Today's hearing will give our Subcommittee the opportunity
to examine whether the policies and procedures governing the
conduct of administrative adjudications in the Coast Guard's
administrative law system guarantee the fairness of all
proceedings to all parties who appear before the system.
A detailed analysis of the 6,321 allegations filed by the
Coast Guard against mariners through the administrative law
system since 1999 reveals that a total of 3,441, or more than
half of the allegations, claim that a mariner had used an
illegal drug substance. Just over 30 percent of the allegations
claimed incompetence, misconduct, negligence on the part of the
mariner, and the remaining cases involve either the alleged
violation of a marine safety law or a conviction in another
legal proceeding for drug use, a DUI or other offenses.
According to the Coast Guard records, of the 6,321 allegations
filed against mariners since 1999, a total of 6,149 have now
reached some type of disposition. Just over 46 percent of the
allegations were settled between the mariner and the Coast
Guard without proceeding to an adjudication. A total of 901
allegations ended in default because a mariner never responded
to the allegations while 433 allegations were administratively
withdrawn by the Coast Guard because a mariner could not be
found to be served with an allegation, and 422 allegations were
withdrawn by the Coast Guard either because the allegation did
not proceed or, more often, because a mariner voluntarily
agreed to surrender a credential.
Of the 6,149 allegations that have reached a disposition,
of 957 allegations, only 740 dockets were contested either
because a mariner denied an allegation or disputed a proposed
sanction. I note that a single docket often contains more than
one allegation. Of these 740 contested dockets, ALJs have
missed 131, or nearly 18 percent of the cases. A total of 326
dockets, or 44 percent, reached settlement. 152 dockets
proceeded to adjudication, and the remaining dockets reached
some other disposition or are still in progress. Of the 152
dockets for which an adjudication proceeded to the issuance of
an ALJ order, the charges against the mariner were found to be
unproven in 18 cases.
Though, the Coast Guard's appeals of four of these cases
resulted in three cases being remanded and the modification of
one ALJ decision. Of the remaining dockets that proceeded
through the adjudication, only some of the allegations on the
docket were proven or a contested sanction was reduced in 131
cases while all allegations were proven on 93 dockets, or 61
percent of the cases that proceeded to adjudication.
Now, while these numbers are very interesting, we have to
be very careful. Of course, while these numbers give us an
overview of the disposition of allegations and dockets, they do
not reveal a mariner's motivation in agreeing to a settlement
or to explain why some allegations were found to be proven or
unproven. Most importantly, these numbers reveal nothing about
whether the policies and procedures governing either the
management of the entire administrative law system or the
conduct of individual adjudications are fair or whether they
are fairly applied by the system's Administrative Law Judges.
Further, if there are instances of unfairness and propriety,
these numbers do not reveal whether they are isolated incidents
or proof that an entire system tolerates or even encourages
prejudice against one party or the other in the conduct of an
adjudicative proceeding.
Unfortunately, allegations of unfairness and impropriety
have come to the attention of this Subcommittee. Our hearing
will explore the validity of these allegations. Our hearing
will also examine whether the procedures in place in the Coast
Guard's administrative law system meet the higher standard of
preventing even the mere appearance of impropriety or
unfairness. Such appearances in any legal system are simply
intolerable because they destroy trust in the system, which
must be the ultimate protector of individual rights. By the
way, this still is the United States of America.
Administrative law is unique because it is a legal system
within an executive branch agency, designed to oversee the
application of agency rules and regulations. Further, it is a
system in which facts and decisions are concluded not by jury
or by peers, but by a single Administrative Law Judge who also
has wide latitude in directing the course of the proceedings.
We will hear today from three individuals who have borne
the responsibility of adjudicating administrative proceedings
in the United States' Coast Guard's administrative law system.
We will also hear from a witness who brings years of experience
in representing mariners before the Coast Guard administrative
law system. Another witness is Professor Abraham Dash,
Professor of Law, Emeritus, of the University of Maryland
School of Law, from which I proudly graduated. Although he did
not teach me, I wish he had. He brings decades of experience,
studying and teaching law to generations of students. The Coast
Guard has sent two senior officers to discuss the management of
its administrative law system, and we also look forward to
hearing from them.
Ladies and gentlemen, the very foundation of the entire
American system of justice is the right to a fair hearing and
to due process in any manner involving the law. These rights
are sacred in this Nation. As a lawyer and as an officer of the
court, I share the duty of those sworn to uphold these rights.
More importantly, as Members of Congress, the Members of our
Subcommittee share the duty of ensuring that all executive
branch agencies treat all citizens fairly and impose sanctions
against any individual only when an administrative proceeding
has been fairly conducted, provides due process and all
evidence has been heard.
I emphasize that we will not be examining individual cases,
whether opened or closed, in today's hearing. The adjudication
of administrative cases is properly left to the administrative
law proceedings, and we honor that principle today. Rather, our
task today is to ensure that the scales of Coast Guard justice
can be trusted to fairly balance the legitimate safety concerns
of the Coast Guard with the rights of mariners.
With that, I look forward to the testimony of all of our
witnesses. I thank all of you for being here today.
Now we will hear from our distinguished Ranking Member, Mr.
LaTourette, and on the record as I recognize you, Mr.
LaTourette, I want to, again, thank you for working so closely
with me on these matters but, just as importantly, the vote
that we will take today with regard to Deep Water. I want to
thank you again for your cooperation, and I really appreciate
it.
Mr. LaTourette.
Mr. LaTourette. Thank you for yielding, Mr. Chairman. I
want to respond in kind to your remarks.
I apologize for being so brief last night on the floor, but
we had some people who were pretty antsy to vote, but clearly,
your leadership on the Deep Water bill and the Coast Guard
reauthorization were done in a truly bipartisan way, and it is
a pleasure to serve as your Ranking Member on this
Subcommittee.
I want to thank you, Mr. Chairman, for holding this hearing
today, and I also want to thank you for what I consider to be a
very measured opening statement, because what brings us here
today--I have to tell you just a little bit of background. I
began my career as a public defender, and I stopped being a
public defender because, when you are a public defender, the
judges do not like you; the prosecutor does not like you, and
your clients do not like you. So I then switched, and I became
the prosecuting attorney in my town before my election to
Congress, so I have seen the justice system from both sides,
and I am concerned that the allegations that I expect to be
raised today are going to suggest that the ALJ system within
the Coast Guard is somehow fixed in favor of the Coast Guard
and against those who seek redress, and that is troubling to me
as a lawyer and as an officer of the court, as I am sure it is
troubling to you.
When we had a hearing a couple of weeks ago, I listened to
you talk about a Baltimore Sun story, and I did not know what
it was because I do not subscribe to the Baltimore Sun because,
quite frankly, I am from Cleveland, and I am still mad about
their stealing the Cleveland Browns.
But I did read the story, and the story is alarming, and it
is alarming because it claims in its opening salvo that, out of
6,300 cases, in only 14 cases did the mariners prevail. Now,
that is a startling number, and I will tell you, as a
prosecuting attorney, when I indicted somebody, they were most
likely guilty, and so, when we would go to trial, it does not
surprise me, when the article talks about the DOJ system, where
9 to 1 is the conviction rate. I get that, and I think that
that is reasonable and that it is probably uniform across the
system.
The problem with the Baltimore Sun article is that it does
not appear to be true, and I think the Chairman, in his opening
statement, pretty well laid that out. Of the 6,321 cases, only
957 were contested, and I will get down to the bottom there. 45
percent were settled. In 9 percent, the mariner admitted the
misconduct. 7 percent were withdrawn, and in 7 percent, they
were unable to find the person, and so they did not serve the
documents. It is my understanding from reviewing the documents
that only 218 of these 6,321 actually got to in Administrative
Law Judge's desk, and of those, 124 were proven. That is 82
percent, which is below the 90 percent that you would find at
the Department of Justice.
The other thing that concerns me is that there are
allegations in the article from former Administrative Law
Judges about ex parte communications and hearings that took
place, but I do not find anybody on today's witness list who
was at those meetings, and so I would like to submit and ask
unanimous consent to submit for the record a memorandum
prepared on 7 March 2005 that details the meeting in New
Orleans. Just as a pertinent part, before the meeting started,
according to this document, I understand there might be
somebody named Jordan in the audience, and I understand he was
at the meeting, and so, if we are going to get into this
meeting, perhaps we could ask Mr. Jordan to tell us what really
happened at the meeting because he was there. It specifically
says that they laid ground rules that they were going to be
prohibited from having any ex parte communications.
Now, you know, Mr. Chairman, ex parte communications are
horrible, and they are cause for recusal and dismissal and
everything else, but if that did not take place, I hope that we
are not going to hear from witnesses who claim that it did.
Then, secondly, as to a meeting that took place in
Baltimore on a memorandum prepared on 11 April 2005, I would
ask unanimous consent that those be submitted for the record.
Mr. Cummings. Without objection, so ordered.
Mr. LaTourette. Then also laced in the article is this
whole business about hemp oil and marijuana. The Chairman
correctly points out that most of these cases deal with
substance abuse, and I would hope that someone could explain to
me why--and I think there is an allegation and some testimony
that this Chief Judge Ingolia, who is not going to be here
today, circulated some secret memo about you are not going to
take in evidence on hemp oil. Well, I have the CFR, 49 CFR
40.293, that says the DOT regulations specifically directs that
you may not take into consideration in any way statements by
the employee that attempt to mitigate the seriousness of the
violation related to the use of hemp oil, medical marijuana,
contact positives, poppy seed ingestion or job stress.
So, again, if you read the Baltimore Sun article, it is
like this chief judge circulated some secret memo to deny a
defense when, I think, the Code of Federal Regulations
instructs the DOT operations to not consider it. I can remember
it was a big thing for guys who got DUIs, when I was the
prosecutor, that they would like drink Listerine and then pop
some stuff or say they were diabetics, and so I do not know
whether that is going on with hemp oil or not, but the
allegation in the article is that this chief judge was denying
people their rights because of the use of hemp oil when, in
fact, DOT regulations say that you cannot consider it.
So I would hope, depending upon what comes up at this
hearing, that the Chairman would consider having an additional
hearing where former ALJ Lawson, who is the only person quoted
in the Baltimore Sun article that appears to say anything nice
about the ALJ system--and Brudzinsky, Ingolia and McKenna,
together with Mr. Jordan and others, who were participants at
the meeting down in New Orleans--so we can get a truly accurate
picture. I will tell you that, if this system is slanted
against mariners, I will join the Chairman to fix it, but I do
have some questions as to how this article was generated, and I
have some questions about the allegations contained in it.
I thank the Chairman for the hearing, and I look forward to
it.
Mr. Cummings. I want to thank the gentleman for his opening
statement. Let me be very abundantly clear.
I think that you were very kind, and you were very accurate
when you talked about my measured opening statement. I am not
so much concerned about the numbers. I am concerned more about
the allegations, and I think that we have to--whenever these
kinds of situations arise, I think, preliminarily, we have to
look into them.
Let me say to Mr. LaTourette that there has been no issue
that we have dealt with--and we have dealt with many on this
Committee in the last 7 months--that has gotten more of a
response than this one from the mariner community.
Again, as you well know, I approach these hearings from a
very balanced standpoint, and we go where the facts lead. As
far as the February 2005 meeting, we asked the Coast Guard to
send us some folks who could address those issues. We would
have loved to have had them, but they did not do that. So, with
regard to follow-up, you know I do not mind holding hearings.
As I have said many times, when it comes to the Coast Guard, I
will have a hearing every day to make sure that it is the very
best organization that it can be.
So one of the other problems that we face is that there is
an ongoing DOJ--there are ongoing cases, and so there were some
issues, I think, where they did not want--that maybe the Coast
Guard did not want to send certain people, and certain people
were just--it would just interfere with those cases, and so we
were trying to strike a balance, but I assure you that I will
work very closely to bring anybody before this Subcommittee and
the Committee who can shed light on this situation because, in
the end--I think the last thing you said is the thing that is
one of the main reasons why I have so much respect for you, and
that is that you said that if you find that there is unfairness
that you, too, want to stamp it out. If there is none, then we
are fine. We will just move on. So that is why we hold the
hearing today.
With that, we are very pleased to have with us
Representative Walter Jones, who has asked to address the
Subcommittee for 5 minutes, and I want to thank Representative
Jones for being here. He is a Member of the Full Committee, and
he is someone who I have just a tremendous amount of respect
for, and I want to thank you for being with us. I was thinking
about Armed Services. He and I sit on Armed Services together,
and I know that he is a man of just tremendous integrity, and I
am very, very interested to and I know our Committee is very
interested to hear what you have to say.
Thank you very much.
Mr. Jones. Mr. Chairman, first, thank you for those very
kind remarks. To you and to the Ranking Member--Mr.
LaTourette--and to the Committee Members who are here today, I
thank you for holding this hearing and for allowing me to make
a very brief statement, and I want to start by quoting Thomas
Jefferson, and this is his quote:
"The most sacred of the duties of a government is to do
equal and impartial justice to all citizens."
Sadly, a recent Baltimore Sun investigation helped to
reveal that the U.S. Government and specifically the Coast
Guard's Administrative Law Judge system is denying mariners and
fishermen the justice they deserve. The Sun's investigation
confirmed what watermen in my eastern North Carolina district
already know; standing up for your innocence in the Coast Guard
court system is all but useless because the deck is so
hopelessly stacked against you.
The Sun found that the Coast Guard prosecutors have a 40-
to-1 success rate. Faced with the near certain odds of a guilty
verdict and a steep penalty, innocent mariners still have no
choice but to settle with the Coast Guard even if settling
would do great damage to their reputations, to their careers,
and to their ability to provide for their families.
The Sun also uncovered other alleged improprieties and
procedural inequities that, if true, help explain why mariners
are so unsuccessful in Coast Guard courts. These allegations
include the Chief Administrative Law Judge pressuring judges to
rule in favor of the Coast Guard--these are allegations, I
admit, but thank you for holding this hearing--improper contact
between members of the Coast Guard's ALJ system and Coast Guard
personnel regarding open cases, rulings being predetermined by
judicial policies, circulated privately by the chief justice
and the Coast Guard's Administrative Law Judge's repeated
denials of defendants' requests for evidence against them.
They are allegations, but as you said, Mr. Chairman, your
comment was allegations need to be disproven if they are not
true. Mr. Chairman, I cannot tell you how pleased I am that
this Subcommittee is holding this hearing today. You have a
symbol, a distinguished panel of witnesses, and I look forward
to their testimony. But with your indulgence, I believe the
Subcommittee would also benefit from hearing from some of those
most affected by the Coast Guard court system, the watermen
themselves.
To that end, I would ask unanimous consent to include in
the record a statement from Sean McKeon, President of the North
Carolina Fisherman's Association. Mr. McKeon outlines the
experiences that many North Carolina commercial fisherman have
had with the Coast Guard courts, experiences which are
disturbingly similar to those revealed by the Baltimore Sun.
With that, Mr. Chairman, I ask that I might submit that for
unanimous consent.
Mr. Cummings. Without objection, so ordered.
Mr. Jones. Mr. Chairman, with that, I want to thank you
again for giving me these few minutes to make this presentation
and to thank you and this Committee because, when it all comes
down, it is exactly what Thomas Jefferson said, "equal under
the law for all."
So, with that, I yield back the balance of my time.
Mr. Cummings. Representative Jones, let me just say this--
and I will make our Subcommittee Ranking Member aware of this
also.
First of all, thank you for the statement. Is it Mr.
McKeon?
Mr. Jones. Yes, sir.
Mr. Cummings. One of the things that we found in our
efforts to pull together this hearing is that there were people
in the mariner community who were basically afraid to testify.
Mr. Jones. I understand.
Mr. Cummings. Afraid. That is very, very alarming to you as
a Member, to all of us as Members of Congress. They were
fearful of retaliation in some kind of way, and I am going to--
and we have got another hearing coming up on Thursday with
regard to marine safety, and we had some issues with the same
kind of problem. So we appreciate Mr. McKeon's statement, and
we appreciate you.
Do you have any questions?
Mr. LaTourette. I do not have any questions. I just want to
make an observation.
Congressman Jones is my classmate from 1994, and over these
last 13 years, I have the greatest admiration and respect for
Congressman Jones and some very principled positions he has
taken during his career.
I would just say to my friend that one of the things that
concerns me, as I attempted in my opening remarks to go
through, is the fact that the Sun article is not correct when
it comes to the 40 to 1, but the other thing that concerns me,
again from my background as a prosecuting attorney, is that I
am familiar with people being sort of whipsawed or forced to
take pleas or to reach settlements that they do not normally
want to do, and I think that that can be just as pernicious and
obnoxious as a trial or a proceeding that is not fair.
I, again, went to the Code of Federal Regulations, and I
just want the gentleman to know that at least 45 percent of the
cases that are settled require the person who has the charges
filed against him to make an admission of all jurisdictional
facts, so they have to say that the charges are true before
they can enter into a settlement with the Coast Guard for
presentation to a judge.
Now, I am also familiar--we used to have something called
an "Alford plea" where the defendant comes in, and he says, "I
did not do this," but it is the difference between 5 years and
10 years, and so I will take the 5. If that is what is going
on, I will tell you, Mr. Jones and the Chairman, that that is
wrong, too, but I do hope that this hearing and our additional
investigation gets into this notion that 45 percent of the
cases are settled, but in those settlements, the person has to
admit the facts brought against him or her by the Coast Guard.
I thank the Chair and I yield back.
Mr. Jones. Mr. Chairman, again, I close by saying thank you
to you and to Mr. LaTourette. I think this is a very, very
important hearing, and I thank you very much for the
opportunity to speak.
Mr. Cummings. Representative Jones, we thank you. Thank you
very much.
We will now bring forth our first panel of witnesses. We
will have two panels of witnesses. The first panel will be
Judge Peter Fitzpatrick, a former Coast Guard Administrative
Law Judge; Judge Rosemary Denson, a former Coast Guard
Administrative Law Judge; Judge Jeffie Massey, a former Coast
Guard Administrative Law Judge; Professor Abraham Dash,
Professor Emeritus at the University of Maryland School of Law;
and Mr. William Hewig, Attorney At Law and Principal with the
firm of Kopelman and Paige, P.C. in Boston, Massachusetts.
TESTIMONIES OF JUDGE PETER FITZPATRICK, FORMER COAST GUARD
ADMINISTRATIVE LAW JUDGE; JUDGE ROSEMARY DENSON, FORMER COAST
GUARD ADMINISTRATIVE LAW JUDGE; JUDGE JEFFIE MASSEY, FORMER
COAST GUARD ADMINISTRATIVE LAW JUDGE; PROFESSOR ABRAHAM DASH,
PROFESSOR EMERITUS, UNIVERSITY OF MARYLAND SCHOOL OF LAW; AND
WILLIAM HEWIG, ATTORNEY AT LAW AND PRINCIPAL, KOPELMAN AND
PAIGE, P.C. BOSTON, MASSACHUSETTS
Mr. Cummings. I want to again thank all of you for being
here today. We will ask you to make 5-minute statements. Keep
in mind that we have your written testimony, and you can
basically summarize your statements, if you will, and then we
will go into the questioning. We will hear from you in the
order that you are sitting.
So, therefore, Mr. Fitzpatrick, please.
Judge Fitzpatrick. Thank you, Mr. Chairman.
My name is Peter Fitzpatrick, and I retired as a Coast
Guard Administrative Law Judge, after 27 years of service, on
January 3rd of this year.
I want to say at the outset that, during the 27 years as a
Coast Guard Administrative Law Judge in Norfolk, Virginia, no
one, no chief judge--the present chief judge or the former
chief judge--ever directed, pressured or ordered me to decide
any case for either side. In addition to that, no district
commander, no investigating officer and no captain of the port
has ever told me how to decide a case. That allegation in the
Baltimore Sun is absolutely erroneous as far as it goes for me
in Norfolk. I am a very independent person, and so are the
other Coast Guard judges. I cannot imagine someone like Judge
Boggs, after 50 years of service in New Orleans, ever being
told by anybody to do anything. That is the first point I want
to make.
Secondly, I found that article in the Baltimore Sun to be
yellow journalism at its worst. I have never seen such an
attempt to tear down the reputation of the chief judge of the
Coast Guard, who I find to be a man of the highest integrity, a
war hero who fought in the Second World War and in the Korean
War. He is a man of the utmost and highest integrity and one
who I respect as much as anyone I know. Never would he ever--in
fact, at every meeting we ever had he was adamant in making
sure that none of his judges had ex parte communications--that
was a big issue, and it was a constant one--but more than that,
as to the way in which he supervises and fills out his role as
Administrative Law Judge, I had very little contact with the
chief judge on a weekly basis.
In fact, I would not hear from Washington for 3 or 4 months
at a time. I would contact the staff attorneys who might be
working for me as we were doing cases, but there was very
little contact with the chief judge's office. In fact, at one
point, it was rather frustrating to me, and I asked him.
"listen, would you mind if I put together a monthly meeting in
which the judges could talk about issues of their mutual
interest." he said, "Yes," and we did that for a while, but it
was really sporadic, and it did not go any place.
I submit to you that there is a big difference between
1980, when I began, and 1991--in that 11-year period under the
former chief judge--and the present period between 1991 and the
present. This chief judge has done a great job with that
program, and the last thing on earth we have been encouraged to
do or even--we would be criticized severely if we denied the
rights of a respondent in a hearing.
In every hearing I have I am fully aware of exactly how
much this means to the individual. The most difficult and
painful cases we have had are the drug cases because you can
have someone who is a competent mariner who goes awry with the
use of dangerous drugs, and we do not have much choice when it
comes to one of those cases. If, in fact, it is proved with a
testing process that he is the user of dangerous drugs, we must
revoke unless under the statute it can be showed he is cured.
When I started this job, the Coast Guard had a zero tolerance
policy with respect to drugs. Myself, Judge Boggs and Judge
Hanrahan in Jacksonville had a lot to do with developing the
cure exception that is in the statute, and we would send our
mariners to rehabilitation programs and stuff like that so that
they could then show that they were cured and get back their
licenses.
The Coast Guard started out with a zero tolerance policy.
So, as a result of our efforts as judges in the field, that
changed, and today, of those settlements that you hear about,
almost every case of drug testing is generally a settlement. It
is a settlement where the individual goes through a
rehabilitation program, takes unannounced drug testing during
the period of time and takes courses, and then if he can show
he has distanced himself for a year, he can go back to sea one
time. If he does it again, then in my estimation, he should not
go back to sea, but it is Congress that put that directive to
us as judges. They put it to the Coast Guard. The Coast Guard,
in its regulations, declares that, if an individual is shown to
be the user of dangerous drugs, his document must be revoked.
Mr. Cummings. Thank you very much, Mr. Fitzpatrick.
Ms. Denson.
Judge Denson. Good morning, Mr. Chairman and Members of the
Committee. My time period with the Coast Guard as an
Administrative Law Judge was from the period of 1982 to 1996. I
can speak for that period of time. I know there have been
changes made since then that I might not be aware of, but I did
have some experiences in the Coast Guard that I thought were
less than appropriate that should not be existing in a program
like the Administrative Law Judge program that is supposed to
provide fair and impartial hearings to our Merchant Mariners.
Part of that existed with the internal workings of the program.
I had experiences--there were three chief judges that I
served under, one of them Judge Chatterton, the second Judge
Boggs, Archie Boggs, and Judge Joseph Ingolia. My comments are
not made in regard to Judge Boggs because I never had
experiences with Judge Boggs that I thought were inappropriate
and in an inappropriate environment for a judge to be operating
under.
With the first chief judge, I found that there was
intimidation and isolation if you did not go along with the
program. As far as my deciding a case one way or another, I was
not influenced by this type of intimidation that I received,
but nevertheless--and I can say that more towards Judge
Chatterton than Judge Ingolia--there were letters written to
embarrass me about a case that I might have been handling that
he had never reviewed or who was never even present during the
hearing, who was telling me to comport myself in a certain way
because a disgruntled attorney had sent a letter, and the chief
judge never called me; he never spoke to me; he just wrote a
letter. This letter I received after a year when I was, really,
in literal isolation from him because of some clerical leave
that I had given my legal assistant. I was put on a bad list, I
guess you could say, and there was no communication. It was
this type of behavior.
Then the most significant was not assigning me cases to
hear, and that does not bode well for the following of the APA
and the administering of justice in the rotational assignments
of cases. The objective I found out later from Admiral Nelson
of the Coast Guard at the time and Admiral Lust, who was the
Chief of Staff--they told me that they were in the process of
shrinking my caseload because of the desire of the then-chief
judge to eliminate my position with the Coast Guard. That
happened back in the 1980s. Then subsequent to that time after
Judge Ingolia came on board, there was another process that
gradually grew where there was a shrinking of my caseload and,
eventually, a recommendation that my office be closed and that
I be eliminated. This type of behavior, to me, was a setup to
get rid of me on two separate occasions. I do not know what was
not attractive about having me there, but it was done
improperly.
The final thing that was done was a RIF, and a "RIF" is a
Reduction in Force in the government. The Coast Guard
Administrative Law Judge Program happens to be a headquarters
unit, and the Commandant instructions provides how a RIF should
be done with the headquarters unit, and that was not followed
by Chief Judge Ingolia at the time because, if it is a
headquarters unit, your RIF competitive area is nationwide.
That means I would have been in competition with all of the
other judges. However, it was decided by Judge Ingolia that my
competitive area was St. Louis where I served as a judge in the
surrounding areas, and there were no other Coast Guard ALJs
that I had competition with, and I was, therefore, eliminated.
This is commonly known as a designer RIF, and it is used
against veterans.
So, if veterans are in a particular area of competition
with no one to compete against, you can get rid of a veteran,
and that was done to me at that time when they got rid of me in
1996, but this just led up, I mean, there were many things that
led up to this type of behavior, to this conclusion, I should
say.
As I said, my caseload was shrunk, and even when I asked
for cases, they were not given to me. Cases were given to
judges who were like 800 or 900 miles away when I was 300 miles
away. When I was in St. Louis, a Chicago case up came up, and
it was not provided me to hear that to keep my caseload going.
I did sense what I was doing, and when I had that situation and
that feeling that I am insecure in my position, that does not
bode well for my sitting and being able to concentrate on my
work in deciding the cases. However, I felt I worked very hard
on my cases, and I did not show favor towards either side, and
I thought I wrote a well-crafted decision and order.
I also asked for assistance, for law clerks to assist me,
which were provided to the other judges and were never provided
to me. I do not have answers to why those questions happened. I
am sure the Coast Guard chief judge has answers for that, but I
was in a work environment that was not healthy, and I also
retired under a medical disability because life is more
important than putting up with that kind of behavior.
So, as far as the seamen's getting a fair hearing, I did my
very best in every single case to give them a fair hearing.
However, there were outside influences that tried to direct
against me to work in an environment where I do not think I
worked up to my capabilities but where I could have, not that
they did not get fair hearings.
Mr. Cummings. Thank you very much.
Ms. Massey.
Judge Massey. Mr. Chairman, Mr. LaTourette and Members of
the Committee, thank you for the opportunity to contribute
information to your investigation.
For a moment, let me ask you to imagine that you are a
mariner living in Southern Mississippi. You are a high school
graduate, and you have worked as a crewman on a vessel that
takes supplies to oil rigs in the Gulf of Mexico. You have been
employed by various companies in the last 10 years, but you
have never done any other type of work, and you have no
training to do any other type of work. It is 1:00 p.m. in the
afternoon, and you are sitting in the upstairs hall of a
regional Coast Guard facility, the same facility where the
investigating officer you met with 6 months ago has his office.
It was then that he served you with a copy of a complaint
that alleged you had been intoxicated on board the vessel you
last worked on, and while intoxicated, you assaulted another
crew member. When your vessel docked after this incident, you
were informed by the company's Regional Employee Relations
Specialist that you were being fired because of the
allegations, and they had to report the alleged incident to the
U.S. Coast Guard. When you met with the investigating officer,
he took your mariner's credentials from you. You have been out
of work for 6 months. Although the investigating officer
explained to you that you had the right to an attorney to
represent you at a hearing, you cannot afford an attorney. You
feel, if you just tell your side of the story, any reasonable
person will know that the charges are not true. You believe
that the Coast Guard will have several crew members present to
testify because you know the Coast Guard took statements from
them. They all know what really happened. When you received a
witness list from the Coast Guard just 2 weeks before your
hearing, you see that the names of all of the crew members they
interviewed are not on there. You do not understand that this
means that the Coast Guard does not intend to call these men as
witnesses. There are all sorts of uniform Coast Guard employees
milling about. After about 15 minutes, a man comes up the
stairs, accompanied by the I.O. you met with and two other
uniformed U.S. Coast Guard employees. They are laughing and
talking and paying no attention to you. They all go into a room
down the hall, a room you are summoned into in a few minutes.
To your surprise, sitting on the bench is the man who is
just laughing and talking with the Coast Guard employees. None
of the crew members who you know witnessed the incident are
present. The only people there are your former employer's
Regional Employee Relations Specialist and the crew member you
had the fight with. The hearing is over in less than 30
minutes. The crew member who you had the fight with testified
that you were intoxicated and that you attacked him for no
reason. The employee specialist testifies that he received a
report of the incident, took you off the boat because that was
company policy and informed you that you were fired. You
testify that you were not intoxicated, that the other crew
member had been drinking, and he attacked you. You were only
defending yourself. You also testify that this crew member had
it in for you because a former girlfriend of his had started
dating you. You know but do not say that this guy is also a
cousin of someone's who is an executive in the company you
worked for. You do not mention it because you do not know it is
important, and no one asks you.
You tell the judge that there were other witnesses to the
incident, but he tells you that, if you did not get them to the
hearing, then he was not going to hear their testimony today
because today was your hearing date and your only chance to
present your evidence. Before you really understand what is
happening to you, the judge says your license is suspended for
6 months.
I hope that this scenario does not sound incredible or
unlikely to the Committee Members because, based on my
experience of the Coast Guard, this scenario is representative
of past hearings, the type of hearings that have gone on for
years at the Coast Guard. I also hope that the Committee
Members understand that I am here today only because I believe
the suspension and revocation hearing process at the Coast
Guard is in violation of its own regulations and of all the
basic tenets of due process.
Despite the personal attacks and disrespectful environment
I was subjected to while at the Coast Guard, my appearance here
today has nothing to do with me, personally. What has been
happening to the mariners who have been forced to face us in
our proceedings without the protections guaranteed by law is
the only thing that matters.
I welcome the questions of the Committee Members.
Mr. Cummings. Thank you very much.
Professor Dash.
Mr. Dash. Thank you, Mr. Chairman.
My name is Abraham Alan Dash. I am an Emeritus Professor of
Law at the University of Maryland School of Law where I have
taught admin law for the past 30 years. I am present today
because the law school wanted to extend all courtesies to this
Committee, particularly to its Chairman, one of our former
graduates. I am here myself because there were two of us who
teach admin law who were available this summer, and I lost the
toss, so I hope that establishes the fact that I am completely
objective here at this hearing.
Now, much of what I will say in my statement I am pretty
sure all of you are familiar with, but for the record, the
Federal APA was passed in 1946, and this statute was an attempt
to correct the due process problems of that time. There were no
standard procedures of agencies. Each agency, more or less, did
what they wanted for an adjudication or for a rulemaking.
Now, the adjudication sections of the APA are, obviously,
the most relevant here. I would note the adjudications under
the APA are reserved only for those agencies whose statutes
require a hearing on the record. Now, the reason I note it is
because, when an APA hearing is triggered, it is because
Congress intended to have the full panoply of due process
rights for that particular adjudication.
Now, the APA hearings, of course, go way beyond any
requirements of the fifth amendment of due process. They are
loaded. Sometimes they are compared to a Federal District Court
non jury trial.
I notice that it is apparent that there were three areas of
procedural due process of the APA that are relevant to this
hearing. One is the independence and impartiality of the
factfinder, or the, i.e., Administrative Law Judge; ex parte
contacts with the factfinder, again the Administrative Law
Judge; and the discovery for respondents in Coast Guard
adjudications.
Now, on independence and impartiality, in the 1970s, there
was a complaint that the then hearing examiners at the time
were not as objective or independent as they should be.
Congress held hearings, and there were issues coming up of
perhaps having an Administrative Law Judge corps or even a U.S.
administrative court. The compromise in Congress was to change
the name of the hearing examiner to Administrative Law Judges,
and it was not any simple change in title. It was the clear
intent of Congress to maintain their independence. I will also
note that the pay of ALJs is set by the Office of Personnel
Management, and the discipline of ALJs is entrusted to the
Merit Systems Protection Board and, of course, not to the
individual agencies.
As to ex parte contacts with ALJs, I do not think I would
waste the time of the Committee. It is so obvious that ex parte
contacts with a fact finder in a pending case is definitely a
denial of due process.
Discovery. The APA says very little about discovery in
agency proceedings. Agencies are authorized to issue subpoenas,
of course, by the parties on request. They are also authorized
to permit depositions be taken. Now, the Attorney General's
manual, when they first interpreted the APA in 1947, did stress
that the party should be given the same access to discovery as
the agency, which, in all fairness, is difficult to do because
agencies have a lot of vesicatory powers before they ever bring
a charge. However, agencies do differ in the types of discovery
permitted.
There are some who use the liberal discovery rules of the
Federal Rules of Civil Procedure. Others are more limited. Of
course, there is discretion left with the Administrative Law
Judge because each case is separate, and discovery can very
much be dependent on the nature of the parties and on the
intricacies and the problems, obviously, of the case, itself.
There is also, of course, a basic due process requirement for
discovery so respondents can defend themselves.
I would also note, before I close, that I have a great
respect for Administrative Law Judges. I have had the honor of
lecturing at the National Judicial College in Reno to ALJs. I
have also lectured to some of the agencies and to their ALJs. I
would note to the Committee--I am pretty sure you are aware of
it--in some agencies, for an ALJ, the requirements are more
strict than to be a Federal District Court judge. So they
deserve all respect that could be given to them.
In conclusion, of course, I am available here for any
assistance I may give the Committee, and will answer any
questions that I can.
Thank you, sir.
Mr. Cummings. Thank you very much.
Mr.-- would you pronounce your name for me.
Mr. Hewig. It is "Hue-wig," Mr. Chairman.
Mr. Cummings. "Hue-wig." I just wanted to make sure I got
it right.
Mr. Hewig.
Mr. Hewig. Thank you, Mr. Chairman, the Ranking Member and
Members of the Subcommittee. My name is William Hewig from the
Boston, Massachusetts law firm of Kopelman and Paige.
My written statement discusses two cases from my recent
experience, and I will not review the details of those cases
here with you now other than to say that they illustrate very
well two of the main themes in Judge Massey's memoranda--
apparent bias on the part of some ALJs in favor of the Coast
Guard and the disregard of regulations that would permit
discovery. The lessons from these cases present three policy
implications that I would respectfully put before you now.
First, ALJs for license, suspension and revocation of Coast
Guard actions must be independent, truly independent. Judge
Massey's information detailed what appeared to be possibly
extensive networks of ex parte communications between the Coast
Guard and the ALJs. If such an arrangement is, in fact, true,
it should not be surprising when apparent improper influence
and interference become inevitable features of the system,
itself.
I urge the Subcommittee to reform the procedures for
adjudicating maritime license and document actions along the
lines employed by the FAA, the Federal Aviation Administration.
There, when the FAA makes a civil penalty or a licensing
decision, the adjudication is referred outside the agency to an
ALJ and to the National Transportation Safety Board. Such a
reform would serve the important public policy benefit of
benefiting not only mariners, but also the Coast Guard and the
ALJs, themselves, by reaffirming the integrity of a system
currently subject to widespread disrespect and skepticism.
Secondly, some limited discovery should be granted as of
right. Judge Massey's information essentially showed that the
1998 rule amendments made to permit discovery were, instead,
being promoted by the Coast Guard as a way to deny discovery.
Judge Massey correctly recognized the connection between
discovery and judicial economy. In my experience, discovery is
the catalyst of settlement, and settlements serve the important
public policy of judicial economy. I urge the Subcommittee to
consider amending the regulations to provide some form of
limited discovery in S&R proceedings as of right.
Third, in science and medicine, there are no absolutes.
Judge Massey's information contained recurring references to a
prevailing attitude within the agency that the Coast Guard is
always right. We saw, in the first case I discussed with you in
my written statement, the McDonald case that the Coast Guard
was wrong about their science. That was a mistake that cost the
taxpayers as well as the respondent thousands and thousands of
dollars. If the Supreme Court can recognize that scientific
conclusions are subject to perpetual revision, then I would
respectfully submit that the Coast Guard must do the same.
Where a legal outcome is, by regulation, determined by
scientific or medical information or measurement, the evidence
or measurement should never be absolute. It should always be
made a rebuttable presumption to allow a case-by-case
determination. Had that been the case in the McDonald matter,
thousands of dollars and 3, 4, 5 years of time might well have
been saved. This would serve the important public policy goal
of fairness to mariners as the McDonald case clearly showed.
In conclusion, our mariners, as American citizens, have the
right to expect that the public officials who preside over
their affairs and, in so doing, govern their livelihoods will
do so with honesty, integrity and respect for the laws and for
the constitution of their land and our land, and that, above
all, is the most important public policy goal that Judge
Massey's experience, as well as my own, have to respectfully
commend to your care.
Members of the Committee, thank you for hearing me.
Mr. Cummings. Thank you very much.
Let me thank all of you for your testimony, and let me say
from the outset that, as I was sitting here, listening to the
testimony, particularly that of Ms. Denson and of Ms. Massey, I
realize that so often when we sit in these hearings there is a
presumption that somebody has a personal gripe, and I think we
have to be very careful with that because, as I was saying to
Mr. LaTourette a little bit earlier, we have got to look at all
of these allegations and try to separate them and get to the
bottom line because the bottom line is justice. If something is
systemic, if something is an aberration, you know, we have got
to look at those kinds of things, and so I am going to.
For my first round of questions, I want to go to you,
Professor Dash.
Mr. Dash. Yes, sir.
Mr. Cummings. Assuming you have reviewed CFR 33, part 20
and the guidelines for discovery requests that were issued in
March 2005 by Chief Judge Ingolia, do you believe that the
guidelines present what might be termed a "valid" or"accurate"
interpretation of CFR 33, part 20?
Mr. Dash. Well, let me be very measured, Mr. Chairman, in
my answer. There is no question that a chief judge can set
policy guidelines usually on administrative matters. In reading
his guidelines on interpreting discovery under the part 20
rules, the 600 series, it seems to me that it is a message--if
I were an ALJ, it is a message to sort of limit discovery as
much as possible.
There is another thing in it that causes me some question,
and here, I defer to some of the better experts on their regs,
but if you look at 20.103 of the regulations, it ends "absent a
specific provision in this part, the Federal Rules of Civil
Procedure control." now, in the guidelines that were given, the
chief judge, in the guidelines, says to ignore the Federal
Rules of Civil Procedure, the discovery rules there, which are
liberal.
Now, obviously, I would say most agencies do not follow the
Federal Rules of Civil Procedure, which are very liberal
discovery, but my reading of these--unless there is a specific
provision somewhere that says that the Federal rules are not
available, if I am right in my reading, he is using this memo
to change the regulations, which, of course, you cannot do
that. You have to put it out for notice, et cetera, et cetera
and public comment before you change it.
Mr. Cummings. Let me just get to--I am sorry to interrupt.
I want to get to this.
Based upon what you just said, what you just said, how
would that affect the scales of justice? In other words, if
discovery were limited, more limited than, say, they are
supposed to be, what happens then as far as the scales of
justice, that is, Coast Guard/mariner scales?
Mr. Dash. I would say it would create a problem for an
Administrative Law Judge who thinks in a given case they should
grant a little more discovery to a respondent, that if their
belief is that the policy of the agency is not to give too much
discovery, I think that inhibits it. Because let me see if I
can explain that a little bit more, and I would defer to the
Administrative Law Judges. A lot of this is so discretionary.
An ALJ or a fact finder in granting discovery keeps in mind who
is the respondent. Is he represented by a lawyer? Is he on his
own? How complex is the particular facts here? How much has the
government given to the respondent? And as I say, it is a very
subjective determination. And as you can see, these kinds of
determinations can be effective if the pressure is not to give
too much discovery. And that concerned me. But it also
concerned me that, in this particular memo or guideline, it
seems to me changing the regulation, which of course you can't
do in a policy memo, and if I am correct, that basically the
Coast Guard may very well be able to use the Federal Rules of
Civil Procedure discovery to say in the guidelines to ignore it
would be a change I think in the regs. But as I said, I'm not
sure if somewhere in the regulations there is a specific
proposal that says the Coast Guard in their hearings are not
under the Federal Rules of Civil Procedure.
Mr. Cummings. Ms. Massey, do you want to comment on that?
And one of the things that you said, and I want you to listen
to this, Professor Dash and Mr. Hewig, one of the things, if I
recall in your testimony, Ms. Massey, you said when you were a
judge that sometimes there would be situations where you would
order discovery and the Coast Guard just disregarded it or they
would not present discovery and basically said, go take a hike.
I mean--you go ahead. Those are my words. But that seems to be
what you were trying to say.
Judge Massey. Yes, sir.
Mr. Cummings. Which I think is incredible.
Judge Massey. I thought it was pretty incredible myself,
sir. There were two specific cases. I won't mention the names;
one where the respondent requested that I issue a subpoena. I
believe the grounds for issuing the subpoena were reasonable
and necessary, so I issued the subpoena. Time passed for the
Coast Guard to comply with the subpoena, and they had not filed
a motion to quash, which is in the regulations. They had done
nothing. So I initiated a telephone conference. And during that
conference, one of the investigating officers said, Well, Judge
Massey, we are not going to comply with your subpoena; we are
just not going to do it, because we don't think it is right.
There was another case where the respondent's attorney
requested permission to send interrogatories to the Coast
Guard. And this was a fairly factually complex case. And after
consideration, I granted the issuance of the interrogatories
and issued an order that they be served upon the Coast Guard
and that the Coast Guard file their objections by a date
certain. And if they were going to file answers, then that
would have followed, say, a week later. I don't remember the
exact timing. The deadline passed for the filing of objections.
They filed nothing. And then by the time the deadline came for
the filing of the substantive answers, they filed objections.
The respondent made a motion that I order them to make
substantive responses, and I issued that order. And once again,
they basically filed a document that was nonsubstantive and
later told me, We are just--we don't think you can do that, so
we are just not going to answer those questions.
Mr. Cummings. And so what--I mean, very briefly, what
happened after that?
Judge Massey. Well, there was, in both of those cases,
there was a motion for sanctions made by the respondent. And I
ended up granting the motion for sanctions, and the complaints
were dismissed.
Mr. Cummings. I see.
Professor Dash, let me come back to you. Do you believe
that the general purpose of rule changes made in the Coast
Guard's administrative laws since 1999 and included in 33
C.F.R., Part 20, was to limit discovery as the chief judge's
outline would seem to indicate or to expand them or leave them
the same?
Mr. Dash. Well, actually, in the guidelines, and I want to
be fair with the chief judge, it seems to be a little
inconsistent. He starts out in the guidelines indicating that
there were limits to the discovery and that the regulation on
the 600 part was intended to standardize and provide for
discovery. When I looked through the rules, the rules to me
have the standard boilerplate that you don't waste time; you
wish to have an expeditious hearing.
But at the same time, I think it emphasizes that ALJs
should have the discretion to grant discovery when they think
it is necessary. For example, he, in the in the guidelines, he
seems to want to ignore 20.103(b) which says, except to the
extent that a waiver would be contrary to the law, the
Commandant, the chief ALJ or the presiding ALJ may, after
notice, waive any of the rules in this part either to prevent
undue hardship, et cetera, et cetera.
In other words, you have a rule here which recognizes that
there should be a lot of discretion left to the ALJ in
discovery as well as, obviously, in all procedures of the
hearing. And in the guidelines, there seems to be an attempt to
say, ALJs, well, don't really--sort of ignore it in a way. And
to me, it is an attempt to indicate that the scurry should be
as limited as possible. Now, I don't know what the problem was.
I don't know whether the chief ALJ had found that there was too
much discovery and a waste of time in these hearings. And if
so, I would probably have suggested or recommended that he
modify the rules and put them out for comment to indicate that
there should be more limitations.
Mr. Cummings. Is that the way that would normally be done
if there was a necessity for a change in the rules, the way you
just stated?
Mr. Dash. Oh, yes. If you are going to change the rules,
and I go back, again, to what I said initially, that under the
regulations, it seems to say that the ALJs can use the Federal
Rules of Civil Procedure, the liberal discovery. And in the
guidelines, he is saying, you can ignore the Federal Rules of
Civil Procedure. That is a change in the regulations. And that
has to be done under the APA by notice, comment, you know the
standard procedure for rule making.
Mr. Cummings. Documents in possession of the Subcommittee
indicate that some Coast Guard personnel were concerned about
Judge Massey's conduct at administrative hearings. If concerns
are raised about a judge's demeanor in a courtroom or about the
judge's application of precedent or regulations to the conduct
of a hearing, how should those concerns be raised, and how
should a chief ALJ properly examine and address such concerns?
Would it be appropriate, for example, as apparently occurred in
the Coast Guard, for staff members from various Coast Guard
units, including both the units that investigate cases, went
before the ALJ system, as well as staff of the ALJ system and
the Commandant to hold a meeting to discuss the management of
suspension and revocation cases, even if the cases are not
named in a general discussion of issues that are known to be
pending in open cases appropriate; is that appropriate in such
a meeting among such parties?
Now, Mr. LaTourette talked about a meeting back in 2005,
and the memo coming out of it and certain language at the
beginning of the meeting. It says, at the onset of the meeting,
guidelines were provided to the meeting attendees as
information concerning active cases that could result in
prohibited ex parte communications should not be discussed.
Issues could and were discussed without any reference to a
particular case. No member of the ALJ program staff is assigned
to any D8 related cases.
Even if you have put those guidelines out, meaning you
state that at the beginning of a meeting with those parties
coming together, you talked about when you have these ex parte
communications in your statement, your opening statement, you
said there is a denial of due process. And I think Mr. Hewig
alluded to that, too. Is that a problem? I mean, you can say--I
mean, you can say anything you want to say at the beginning of
a meeting, say, we are not going to do this. Is the meeting in
and of itself with certain parties a problem?
Mr. Dash. I find two problems with the meeting. The first
problem is, and, again, the record should correct me, my
understanding is one of the people who was present would be
handling the appellate aspects of these hearings. If that is
true, even though they were not referred to any specific case,
obviously the complaints that would indicate that X occurred at
a hearing, or whatever it was, would come up in that record,
because my understanding was, at the time, there was still a
case or two that was in the appellate process. If I am wrong on
that analysis, my apologies. But that is my understanding, that
that was part of it.
The other thing that bothers me about this is that when
prosecutors conferring with those who have a certain authority
over a judge, like an administrative judge, let's say in our
circuit courts in Maryland, that is not the way to do it. Under
the APA it specifically states that if an agency has a
legitimate grievance against an ALJ that they think whatever
they are doing is, as in that memo there was some rather
serious criticism of the ALJ, if they believe that, they can
file charges with the Merit Protection Board, which will then,
of course, notify the ALJ, and they hold an APA hearing to see
what, if any, discipline should be given.
I sort of think there is a problem with the independence of
the ALJ if you can have meetings of prosecutors with those who
have certain control over the ALJ where they can protest and
complain about their actions. The complaints might be
legitimate; I don't know. The ALJ in fact might have been doing
things that they have a legitimate argument against them. But
they should be filed I think with the Merit Protection Board if
it is serious enough to raise. If it isn't serious enough to
raise, then there shouldn't be a meeting.
Mr. Cummings. But is that considered a serious violation? I
mean, would you consider it a serious violation, that is an ex
parte communication?
Mr. Dash. If one of the members of that meeting in fact was
going to be handling an appeal of one of the cases which had
already been decided by the ALJ but was on appeal, if he was at
that meeting, yes, I would consider that very serious. Because
the whole idea of the appeal is for the appellate judges or the
agency appellate system gets a fair reading of what happened at
that hearing below. And if he is participating at a meeting
where he hears X and Y and Z occurred, even though they don't
name the case, obviously those facts will come up.
Mr. Cummings. And what if these folks were staff people as
opposed to the actual person, say, hearing the appeal?
Mr. Dash. Well, if there is----
Mr. Cummings. Does it extend to them, your same comments?
Mr. Dash. Yeah. If there is a meeting of let us say the
prosecutorial staff, the IOs or whatnot, I see no problem. If
they want to sit around and say, there is an ALJ here, you got
to watch out; they are no good, or whatever they want to say,
they can, or recommend, after their meeting, recommend to the
agency itself to file charges against the ALJ to the Merit
Protection Board. So that would be different.
My concern with this meeting was, again, whether there was
someone involved in the appellate process participating in the
meeting. If these were just pure staff, part of the executive
section or the prosecutorial section, well, certainly they are
free to have meetings to discuss, just as prosecutors discuss
judges. But there is a difference when you are discussing these
kinds of things with someone who is going to be part of the
decision-making in the appellate system.
And also there is a problem if that kind of complaint is
sent to anyone who has authority over the ALJ. So let us assume
that the memo ended up in the hands of the chief ALJ, that, to
me, would be a problem.
Mr. Cummings. Mr. Hewig, did you have a comment on that?
Mr. Hewig. Mr. Chairman, I would add to that that any ex
parte contact between the agency and its judiciary that is
designed to affect the outcome of cases, whether currently
before them or not, ought to be objectionable as well.
Mr. Cummings. Mr. LaTourette.
Mr. LaTourette. I agree with that statement.
And Professor Dash, just so I am clear, because, again, ex
parte communications on pending matters that have the ability
to affect the manner, appeal or anything else are obnoxious and
shouldn't occur.
It is my understanding, however, and if the record, and
that is why I wish we had somebody who was actually at the
meeting talking about the meeting today, because it is my
understanding that what was being discussed at the meeting
wasn't cases; they were objections that the prosecuting
officials had with the conduct of a particular ALJ. And they
were complaining about that she was abusive, that she was
derogatory in her remarks, things of that nature. Do you have
the same kind of objections to that kind of meeting?
Mr. Dash. Again, if it is among the staff. In other words,
there is nothing wrong with the IOs getting together or
prosecutors getting together to talk about their problems with
judges. My problem is that if you have anyone who is going to
be part of the decision-making, and again I am uncertain, but
my information is there was someone in the appellate section,
he can, from these complaints, when he later gets the record of
the case that he is going to handle on appeal, I don't say it
is definite, but I could perceive or even say, hey, is this
what they were talking about as he looks at the record?
Mr. LaTourette. And I think I understand your concern. And
again, I would hope we could have someone who was actually at
the meeting.
Judge Fitzpatrick, you were in the Baltimore Sun article;
you know that, right?
Judge Fitzpatrick. Yes, sir, I read it.
Mr. LaTourette. And given the fact that you called it
yellow journalism, I think in the your opening statement, did
you particularly read the part about that?
Judge Fitzpatrick. Yes, sir, I did.
Mr. LaTourette. And I think that that observation, let me
find it real fast, is sort of, they basically said you weren't
fair in that case. And then you have the great journalistic
technique of somehow saying you wouldn't comment to them, so I
guess because you wouldn't talk, you must be a bad guy. Would
you care to talk about that particular discovery issue that you
had before you without talking--whatever you feel comfortable
about. But basically they are saying that the rules of
discovery weren't followed, that the Coast Guard wanted to have
some kind of trial by surprise, and you were not right in the
way that you ruled on the discovery matter.
Judge Fitzpatrick. The irony of it all, Mr. LaTourette, is
there was a reporter in the hearing the entire time from the
local Savannah paper who wrote the article and said--the
headline of the article was, "The Judge Was Firm But Fair."
that was the man that was in the hearing the whole time. What
happened in that case was that it began about April, I think,
and the complaint was filed, and 20 days later, an answer. And
then we had a prehearing conference on the basis of motions
filed by counsel. The depositions, some were granted. I can't
remember all of them. But I granted various depositions, one
which was for a docking master, who was the principal tugboat
operator there, is usually tugboat operator, and he was on the
vessel that was at the dock.
But I should mention, this was a very serious case. This
was a--the charge in the case, there were two charges of
misconduct and two charges of negligence. I dismissed one
charge of, one of each of the charges and found proof of one of
each of the charges. Essentially the case involved a large
tanker over 600 feet going at 14.1 knots down a narrow channel
of the Savannah River past the LNG unloading facility where a
tanker was actually unloading liquid natural gas. All of the
testimony in the case was no one goes by that facility at less
than--at more than their steerage way. It is a very, very
serious possibility of danger.
Mr. LaTourette. I think the wake caused the gangways to
collapse.
Judge Fitzpatrick. It is lucky no one got killed. Not only
did the gangway collapse, but all the lines were severed. The
vessel broke all its lines and was then recovered as it was
moving away from the dock. The case began in April. As I said,
we had a prehearing conference when motions were filed for
discovery. And I granted some of them and denied some of them.
I think I granted those ones. And then the case proceeded in a
normal fashion. And then, under the regulations, everybody is
required to exchange the identity of witnesses and send in all
the exhibits 15 days before the hearing. So 15 days before the
hearing, the Coast Guard did that, and so did counsel for the
respondent. Eight days before the hearing, another series of
depositions was required. Eight days before a hearing,
including weekends, provides no opportunity for anybody to get
together, transcribe the depositions and everything else. In
addition to that, the rules require 10 days for a response by
the other party. I would never grant depositions 8 days before
a hearing. It would have delayed the hearing. So I indicated it
was unduly burdensome. And also the focus of the case was on
the pilot. And the charges were negligence and misconduct. As I
said, half the case was found proved. Importantly, the part of
the case that was found proved was that he was negligent in the
speed with which he went past that facility. I suspended his
license outright for 8 months. The Coast Guard was seeking
permanent revocation.
I went down there again after I issued my--I came back, had
the hearing, came back and issued my decision. But I wasn't
sure what to do with him because he was kind of an outsider a
little in the community. The State pilots seemed to be lining
up against him. So I went down, and I had a hearing on the
sanction. And he testified, and he convinced me that this was
oneinstance, but the other instance wasn't bad. So I felt that
because of the seriousness of the event and that I suspended
him outright for 8 months, I thought it was a very fair result.
Mr. Cummings. Judge Massey, I just want to go back to you
for a second.
And Mr. LaTourette, we will go as long as we have to go to
get to the bottom of this.
I wanted to be clear on what you are saying, because I
don't want it to just be passed over one way or the other. But
I want you to at least get out what you are trying to say.
There was a meeting that Mr. LaTourette referred to on the, I
guess it took place in February 2005. And then, lo and behold,
the guideline memorandum comes from the chief judge about a
month later; is that right? Is that accurate?
Judge Massey. The guideline memorandum was issued on, I
believe, March 7, and the meeting took place on February 24.
Mr. Cummings. Now, tell us what your concerns are? Because
in your written testimony, you imply that the meeting that took
place on the 24th may have been more, not just about your
conduct, but about a little bit more than that. And then, lo
and behold, this policy letter suddenly appears addressing a
number of the issues that were apparently discussed in the
meeting; is that right?
Judge Massey. Yes, sir. May I give you just a little more
background?
Mr. Cummings. Please.
Judge Massey. In December of 2004, I became aware by
speaking with Ken Wilson, who was at that time an attorney
working out of the Baltimore office, that the MSOs at Morgan
City and Mobile had put together a list of complaints about the
way I conducted my hearings. They didn't like the way I looked
at the IOs. They didn't like me leaning back in my chair during
testimony. They thought I was just across the board biased in
favor of respondents, a whole litany of things. In total, I
think there were seven pages of complaints. Mr. Wilson sent me
a copy of those complaints. And he and I had a number of
telephone conversations about what to do to resolve this
conflict that had arisen between myself and the personnel at
Morgan City and Mobile.
I offered to meet with the person who supervised all the
investigating officers in Washington to try and iron some of
this out. Mr. Wilson didn't think that that was a good idea. It
seemed to me we needed to get some sort of dialogue going
because my opinion was that they were upset with me because I
was, on occasion, not in every case but on occasion, ruling in
favor of respondents. And that had--I heard my first cases in
August of 2004. And by the end of December, I don't know, I had
heard three, four or five cases, I don't remember. And the
discovery conflicts were just beginning, I believe late
December, early January of 2005.
So when Mr. Wilson called to tell me that this meeting had
been set up in New Orleans, he said it has been agreed that the
IOs are going to come to this meeting, and they are going to
air their grievances about you, your demeanor in the courtroom.
And I am going to be there, George Jordan is going to be there,
and Megan Allison is going to be there. Mr. Jordan is the
director of judicial administration.
Mr. Cummings. What was the purpose of Mr. Wilson telling
you all this?
Judge Massey. Well, he was--I mean, I can't speak for him,
but the chief judge had told me back in November, when he had
first caught wind of the complaints, that he wanted me to talk
to Ken about all of the stuff, because Ken was just a
reasonable person. And the chief said that he didn't really
want to be in the loop. So Ken tells me this meeting is going
to take place, that he is going to be there; George Jordan is
going to be there; Megan Allison is going to be there. And I
was out of town on a case. There was never any question about
my attendance.
Well, Mr. Wilson called me and he told me, he said, I'll
call you after the meeting and let you know how it went. So on
February 28, he calls me. And he says, well, we were really
surprised when we got there because, first off, we were
surprised by who was attending. And second off, we were
surprised because, and these are his words, and I quote,
discovery was the paramount issue. And Mr. Wilson told me that
they did, in fact, discuss by name three of the contentious
discovery cases, or I should say cases where discovery was
contentious, that I had ongoing at that time. And he said they
specifically complained, among other things, that I granted too
many depositions and interrogatories. And they made some other
complaints about saying that I rode roughshod over the IOs and
that I humiliated them.
Mr. Cummings. Let me say this, but I am looking at the memo
which was introduced by my friend Mr. LaTourette, and I am just
quoting from page 2. And it verifies what you just said. It
says here in part in paragraph 7, at the end of paragraph 7, it
says, The judge will raise issues and lead the respondent in
filing discovery, interrogatories, depositions and subpoenas.
In addition, the judge--talking about you--allowed further
discovery before the completion of initial discovery as
provided in the regulations. It goes on to say in the next
paragraph, it was expressed that subpoenas do not have to be
complied with unless they are relevant to the case, and it goes
on. So, go ahead. I just wanted to let you know that the memo
that was introduced by Mr. LaTourette is verifying; although we
don't have a witness from the meeting, we do have the
memorandum. And so a lot of the things that you just said with
regard to discovery, what Mr. Wilson told you was discussed,
are verified in this document.
Judge Massey. And you are looking at a document that I have
not seen.
Mr. Cummings. Okay. Fine.
Judge Massey. Just so you know.
Mr. Cummings. This makes it even more credible. Go ahead,
since you haven't seen it.
Judge Massey. I'm sorry, you want me to go on with?
Mr. Cummings. I want you to tell me--you made some pretty
strong allegations, Judge Massey. And I want to get to the
bottom of them. You have--in your written testimony, basically
what you have said is that a meeting took place in February,
and a lot of things were discussed, including discovery, the
way you conducted discovery. You have said that you felt that
you were--there were efforts being made to limit your ability
to be independent and pursue due process as you felt that it
was your duty to do. And then you said that then when the
judge's guidelines came out, it sounded as if the very
guidelines that he put out, that Professor Dash just talked
about, came directly out of that meeting. Because it was just
so much in sync with what you had--it was your understanding
what happened in that meeting. So I am just trying to get to
the bottom of it. I want you to be brief. But I want you to
just tell us what you--you have come a long way from San
Antonio, Texas, with a sprained angle, and we thank you for
that, but we want you to get out what you want to say. Because
I don't want it left here--you leave here in a situation where
you have not been able to tell your story. I don't want it to
be just passed over.
Judge Massey. All right. One point, sir, that I think is
important for the Committee to examine. There was a person
present at this meeting, a Lieutenant Commander Keane, I think
his name is K-E-A-N-E. He was a member of the District 8 legal
staff. Lieutenant Commander Keane had been assisting the Morgan
City investigating officers by drafting pleadings in at least
two of these cases that were under scrutiny, the responsive
pleadings; in other words, the response to interrogatories,
that type thing. He was making the legal arguments about why it
was improper for me to grant interrogatories or depositions or
issue a subpoena or whatever. If you look at the language that
are in those pleadings and you look at the memo that issued out
of the chief judge's office on March 7, the theories about how
the discovery regulations should be interpreted, and even some
of the language, is the same.
So, in other words, we have a document coming out of the
chief judge's office on March 7 that tracks incredibly, too
much for it to be a coincidence, with pleadings that were filed
in cases pending before me 1, 2 months earlier. And Mr. Wilson
told me that Lieutenant Commander Keane, quote, seems to be
driving a lot of this stuff. Now, this is the same young man
who, when I had an on-the-record conference in a case on March
22 and I was questioning him about some ongoing discovery
issues in that case--this is the third case of the trilogy--it
came out during that conference that he did not know that
mariners had a right to due process at S&R hearings; he didn't
know that. And it clicked then in my head, well, now I
understand why he is making all of these ridiculous arguments
in these pleadings, because they never made any sense to me.
And when he finally admitted to me under questioning that, no,
due process is not applicable to these proceedings, then I
went, oh, that is the problem. He doesn't know that. And then I
spoke to his commanding officer the next day, who dropped in on
me, Commander Simons, who, once again, was trying to get me to
talk about how I viewed discovery. And I refused to do so
because I thought it would be an ex parte conversation. He
tries to stick up for this guy saying, oh, well, you know, he
misunderstood. And I said, oh, no, no, no, he didn't
misunderstand; he just flat doesn't know that due process
applies to these hearings. And I was just stunned.
Mr. Cummings. I got you.
Professor Dash, assuming what Ms. Massey said is accurate,
you have a meeting with the parties that we have already
described, the next thing you know you have got a memo that
comes out seeming to be right in line with cases that are--I
guess they were still pending, Judge Massey?
Judge Massey. Yes, sir, that's correct.
Mr. Cummings. Does that concern you?
Mr. Dash. Yes it does. I will admit I am not objective on
this. I am a little prejudiced. Back in the 1970s, when I
participated in some of the hearings on independence of ALJs,
the big fight was to take away from the agencies any authority
to discipline ALJs. And it even went so far that pay was again
given to the OPM, even to the extent that the pay scale of a
specific ALJ, recommendations of the agency would be ignored by
the OPM. That was in the law. Congress took that out in 1999.
It is long-winded, but what I am getting at is that the ALJ's
independence is very much dependent on the fact that the agency
does not have any real discipline authority over them; that if
they have a problem, the place they go is to the Merit
Protection Board claiming this ALJ is not doing their job.
From what I see here, if true, and I have got to stress if
this is really occurring, an ALJ feels under the pressure that
the agency can control their future and their destiny,
depending on how they act as an ALJ. And, yes, that troubles me
a great deal, because this can impact on their career, their
pay and possibly even their job. And that is very dismaying
because that goes against the whole idea of an APA hearing or
what the ALJ stands for.
Mr. Cummings. Did you have a comment, Mr. Hewig?
Mr. Hewig. I would only add, Mr. Chairman, that as a
practitioner before those ALJs, I would be very troubled if I
were to conclude that that type of interference or influence
were extant.
Mr. Cummings. All right. We are going to break now. We have
got three votes. We should be back here in about 20, I guess 20
minutes.
[Recess.]
Mr. Cummings. The gentleman will resume the hearing.
Everyone will be seated, please.
Mr. LaTourette.
Mr. LaTourette. Thank you very much, Mr. Chairman.
And thanks to our witnesses for your patience while we
conducted business on the floor.
I want to explore two areas that I talked about in my
opening remarks. And the first is this whole issue of
settlement. And I heard what you said, Judge Fitzpatrick, about
how you dealt with the case that was in the newspaper article.
But the allegation has been made that we have mariners who are
copping pleas, if you will, because they are so afraid of the
system, and they are thereby being forced into settlements. And
I quoted part of the Federal regulations. It indicates that, in
making a settlement, the mariner must make an admission of all
of the pertinent facts in the complaint against him to reach
that settlement. And so I guess, first, I would ask the three
former Administrative Law Judges, am I correct in that, that in
order to enter into a settlement with the government, the
mariner needs to make an admission of the facts in the
complaint against him?
Judge Fitzpatrick. Yes.
Mr. LaTourette. And do you have a different answer, Judge
Massey or Judge Denson?
Judge Denson. I didn't have experience under that rule.
Mr. LaTourette. Okay.
And Judge Massey.
Judge Massey. You are correct. May I add a comment?
Mr. LaTourette. Sure you can say whatever you want.
Judge Massey. You were a public defender.
Mr. LaTourette. I was.
Judge Massey. I was a public defender. We all know that
people sometimes say things are true that are not just to get
out of the mess that they are in.
Mr. LaTourette. Sure. And I think I brought that up with
the Alfred pleas.
Mr. Hewig, did you have something you wanted to say about
that?
Mr. Hewig. I did, Mr. LaTourette. I have worked from
settlement agreements that the Coast Guard prepares, not from
the actual regulation. They make citations to the regulation.
But my practice and experience has been, and I have so advised
my clients, that the only admission they are obligated to make
is to the jurisdiction of the Coast Guard over the license. And
beyond that, I have specifically advised them, and it has been
my practice, that in settling a case with the Coast Guard, you
are not admitting to the truth of the specific allegations in
the complaint.
Mr. LaTourette. I appreciate that very much. To the three
former Administrative Law Judges I would pose the question--
because this is a serious allegation in this newspaper article;
it is a serious allegation in other venues as well--was it your
experience, Judge Fitzpatrick, that mariners were being--
entering into these agreements because they were afraid that
the system was stacked against them?
Judge Fitzpatrick. No.
Mr. LaTourette. Judge Denson.
Judge Denson. When people agreed to the complaint, I never
sensed that there was a reason behind, that they were afraid or
they were being forced into it. I think they were just trying
to avoid further, I don't want to say litigation, but further
processing.
Mr. LaTourette. And Judge Massey, your observations on
that.
Judge Massey. I would say that, some of the time, they were
agreeing to it because they thought it was a fair settlement.
But I did have cases where there was an intimation that the
person was afraid to go forward with a hearing because they
were either intimidated by the process or they had been told by
an investigating officer that, if you will settle this case,
I'll give you X. If you take this case to hearing, we are going
to ask for revocation.
Mr. LaTourette. And then that, to me, is a plea bargain.
But the question I would have to each of you is, I would think
as a judge, I mean, when we would do Alfred pleas, and I don't
have experience like you have experience, but when we would do
Alfred pleas, if the judge began to get squeamish and thought
that there was something funny going on, don't you have the
right to reject that settlement agreement?
Judge Massey. No. Under the regulations, if the settlement
agreement complied with the language required by the
regulations, we did not have the authority to go beyond, or
excuse me, behind that and look into the allegations
themselves. We had no authority to do that.
Mr. LaTourette. Judge Fitzpatrick, if you as an ALJ reached
a conclusion or had a suspicion that the person had entered
into a settlement agreement for some illegal purpose, they have
been bribed or made payment of money, you didn't have the
authority to reject that settlement agreement?
Judge Fitzpatrick. You have the authority to reject the
settlement agreement. You have that distance in broad
discretion. It is not true you don't have the authority.
Mr. LaTourette. Let me talk about the hemp oil business,
because it is my understanding that the brother of the reporter
for the Baltimore Sun who became the unhappy mariner who then
went to another reporter at the Baltimore Sun to produce the
justice capsized article, the defense in that case had to do
with this hemp oil business. And again, in my opening remarks,
I talked about the fact that, in the Code of Federal
Regulations, because the allegation is that somehow the chief
judge has gone on a lark and has made up a standard relative to
hemp oil being a defense for a positive test for marijuana by a
mariner, based upon your knowledge to all three of you, is my
understanding correct that the Department of Transportation has
included in the Code of Federal Regulations a specific
admonition that you can't use hemp oil as a defense for a
positive marijuana test?
Judge Fitzpatrick. I think, as you indicated, Mr.
Representative, yes.
Mr. LaTourette. How about Judge Denson?
Judge Denson. I have not much understanding of that. But my
understanding is that applies to a medical review officer and
not necessarily to an Administrative Law Judge at a hearing.
Mr. LaTourette. Well, Mr. Chairman, I would ask unanimous
consent that that portion of the Federal regulations be
admitted into the record.
[Information follows:]
[GRAPHIC] [TIFF OMITTED] T7015.015
Mr. Cummings. So ordered.
Mr. LaTourette. And then, Judge Massey, to you, do you have
a different understanding?
Judge Massey. My recollection is that, when I went to an
initial training session, actually the month before I
officially became a Coast Guard employee, a case with that
defense had just been remanded by the NTSB to the Coast Guard.
And there was some discussion about the hemp oil memo at the
conference. And my recollection is that there was a lag time
between the date that the chief judge issued the hemp oil memo,
which I believe was in 2001, and the date that the Department
of Transportation amended its regulations. I can't swear to the
specifics of that, but I think there was a lag time.
Mr. LaTourette. Okay. Lag time notwithstanding, does
anybody not believe today that the code of regulations in Title
49, according to the DOT, indicates a more direct view as an
Administrative Law Judge that you can't consider the hemp oil
defense on a drug test?
Judge Fitzpatrick. No question.
Judge Massey. The problem with that, sir, is that if the
C.F.R. Was amended in 2003 and you have a case before you that
the act occurred in 2002, you can't retroactively apply that
law.
Mr. LaTourette. I am not going to quibble with you on that.
I am saying today if a mariner has a positive marijuana test,
does anybody dispute the fact that you can't use the hemp oil
defense?
Mr. Chairman, I would also ask unanimous consent to put
into the record the National Transportation Safety Board
judgment or opinion of June 11, 2003 in the case of Thomas H.
Collins v. Christopher Dresser if that is all right with you.
Mr. Cummings. Can we get a copy?
Mr. LaTourette. I will be happy to give you a copy.
Mr. Cummings. All right.
[Information follows:]
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[GRAPHIC] [TIFF OMITTED] T7015.012
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Mr. LaTourette. And then pending my unanimous consent
request I would just indicate that, I don't know if this is the
case that you were talking about or not that was the subject of
discussion, but in this particular matter, my understanding is
it was remanded by NTSB back to the Commandant, because, in
that case, the judge, Judge Archie Boggs, indicated that, at
dinner after he had heard the case, he found out that his son,
who is a lawyer, actually represented the hemp oil company who
was involved in a lawsuit. And there was some internal
discussion about whether or not he should have recused himself.
The conclusion was reached that he shouldn't have. And NTSB
then remanded it saying, do you know what? You probably
shouldn't have sat on that case, and then it went to another
judge who was mentioned in the Sun article. So if the
allegation is that somehow the system is stacked and fixed
against mariners, I think that this guy was treated--I mean, it
is working out for him in that regard. And that is why, subject
to you getting a copy of it, Mr. Chairman, I would like to have
it admitted into the record.
Mr. Cummings. So ordered.
Mr. LaTourette. And then the last question, I would ask you
all if you are familiar with a former Administrative Law Judge
by the name of Lawson?
Judge Fitzpatrick. Yes.
Mr. LaTourette. Good guy? Bad guy?
Judge Fitzpatrick. Judge Lawson's position was misstated
earlier in this proceeding. Judge Lawson, he was a retired
judge who was taken on by the program for 1 year under the 1
year contract. He didn't know hardly anything about the
program, quite frankly.
Mr. LaTourette. Judge Denson, did you serve with Judge
Lawson?
Judge Denson. No, I did not.
Mr. LaTourette. Judge Massey?
Judge Massey. I met Judge Lawson at that June 2004 training
session I just mentioned, and then I never saw him again.
Mr. LaTourette. And Judge Massey, you mentioned in your, I
assumed it was a hypothetical case, that you talked about where
the merchant mariner was in the headquarters and so forth. And
I made a note that you said that the Coast Guard official
suspended his license, took his license away from him prior to
an adjudicatory hearing. Did you say that?
Judge Massey. No, sir, I did not. I said that the hearing
took about 30 minutes, and at the end of the hearing, the judge
announced a suspension for 6 months.
Mr. LaTourette. I must have misunderstood you. Because I
thought you said, prior to the hearing, that the officer took
his credentials away.
Judge Massey. In my scenario, that is true. On cases the
IOs do take the mariner's credentials upon the filing of a
complaint, that does happen.
Mr. LaTourette. Again, I am trying to learn here. It is my
understanding that the credentials were not suspended during
the proceedings.
Judge Fitzpatrick. There is a--in the normal case, that is
correct; they are not suspended. But there is a specific
provision in the regulations which is called an expedited
requirement for an expedited hearing, and it is authorized
under 7702, where the Coast Guard can, because of safety
reasons, somebody being under the influence of drugs or
alcohol, can go aboard a vessel and take that individual's
license or document. If they do that, then they must
immediately contact the docketing center, and the hearing must
be held within 30 days. So it is an expedited procedure, and it
is to protect safety of life and property at sea.
Mr. LaTourette. And then the last question I would have,
the reason I asked you about Judge Lawson, he is quoted in the
Baltimore Sun story about the memorandum issued by the chief
judge. And his observation, quoting directly from the article,
Massey's experience contrasts with that described by former
Judge Lawson who said he suspects that what his former
colleague perceived as pressure was actually Ingolia's
attempts--perhaps awkward or heavy-handed--to counsel a judge
that he might have viewed as a rogue. My experience with Judge
Ingolia was that he left me alone to do what I needed to do.
Do you think that the chief judge considered you to be a
rogue.
Judge Massey. He never used the word rogue with me, sir. He
told me I was a problem.
Mr. LaTourette. Mr. Chairman, thank you. I think, based
upon Judge Massey's extensive observations about this meeting
that she didn't attend, it really would be nice if we could
have Mr. Jordan and Mr. Wilson at a subsequent event.
Mr. Cummings. Thank you very much.
I want to make sure that we maintain the very balance that
we said that we wanted the ALJs to maintain. And I want to make
sure it is maintained in this hearing.
And therefore, I want to go back for a moment. And Judge
Massey, just tell us briefly about your credentials.
Judge Massey. I graduated from undergraduate SMU in Dallas
in 1974; law school, 1977, at SMU. Opened my own law office
initially; did that for a few years. Associated myself with
another lawyer who did State defense work. Went back out on my
own. Worked with the Department of Energy in the special
counsel's office for 6 and 1/2 years. Was a State prosecutor
for 4 years. Went back out on my own. Associated myself for 20
months or so with a lawyer who did exclusively Federal white
collar criminal defense work. Went back out on my own. Became a
public defender for 2 years. That was the first 20 years of my
licensing.
And then, in September of 1997, I was picked up as an ALJ
for Social Security. Worked for them until September of 2001
when I became employed as an ALJ for the Federal Energy
Regulatory Commission here in Washington. Left that job to take
the Coast Guard job in July of 2004.
Mr. Cummings. I just wanted to have some background there.
And I am going to ask you some questions in a moment. I want to
go back to some of the things that you have said.
But right now, I want to address some questions to
Professor Dash, and perhaps Mr. Hewig. I am looking at a--in a
few minutes, we are going to have testimony from the Coast
Guard. And one of the things that they are going to say, Rear
Admiral Salerno is going to say, is that, and this is from his
written testimony, is that there is a certain level of
independence. And he basically said this, Mr. Dash; that these
ALJs are supposed to have--let me just quote a piece of his
testimony, because I want you to comment on this. He says, in
1999--now this is the Coast Guard. You will probably be gone
since you have overstayed, I am sure, your allotted time. But
he said, the procedure rules for handling Coast Guard ALJ cases
were updated to reflect the best practices in administrative
law. These new rules were based on the model rules of
administrative procedure proposed by the administrative
conference of the United States and new procedural rules
developed by the Department of Transportation.
Now, this is what I just want you to comment on. The Rear
Admiral says the intent of this update was to provide
additional due process protections and transparent and
consistent procedures to both the mariner and the suspension
and revocation process. For example, the new rules provided for
modern motions practice, expanded discovery and detailed
procedures for handling evidence and conducting hearings, end
of quote. When you look at the--and then I want to go briefly
to the letter, I guess memo, memorandum dated March 7 from the
chief judge to the other judges. And it says, an ALJ should not
rely on Federal Rules of Civil Procedure for discovery matters.
You are familiar with that memo, are you not?
Mr. Dash. Yes, sir.
Mr. Cummings. I don't want to take anything completely out
of context, but you know the context I am sure.
Mr. Dash. It is his guidelines; I believe it is.
Mr. Cummings. Yes, yes. It seems to me that--first of all,
is Rear Admiral Salerno correct in his statement? Do you agree
with that statement?
Mr. Dash. To the extent that he is indicating that they
want to give more due process and that they want to give good
discovery, yes, I have no objection to it.
Mr. Cummings. And then, when you go to the guidelines for
discovery request written by the chief judge, and that portion
that talks about not relying on Federal Rules of Civil
Procedure, it seems like there is a--they don't seem to go hand
in hand. Because I assume that the Federal rules are broader
with regard to discovery. The chief judge is saying, you know,
basically they don't apply, I guess, to these cases. Am I
missing something.
Mr. Dash. No, you are right. He does say that the ALJ
should ignore the Federal Rules of Civil Procedure. As I
indicated before, I was puzzled by that because the regulations
seemed to imply that they can use the Federal Rules of Civil
Procedure. And as you indicated, Mr. Chairman, the Federal
Rules of Civil Procedure discovery are pretty vast and very
liberal. In fact, I would not even recommend that agencies
should comply with them. They go perhaps too far, depending on
what the agencies need and want to do. But the indications from
which you just read to me is that the purpose of the
regulations and their new rules was to expand discovery and
expand the procedural due process for the mariners.
The memorandum or guideline, and that is what bothered me a
bit about it, seems to be saying that the regulations were
designed to limit in the area of discovery particularly. To
limit discovery, or at least he was saying that should be the
interpretation, I think, if so, that should be done by frankly
doing it in the regulations. I might add, there is nothing
wrong; in other words, if the Coast Guard wishes to limit
discovery to some of the more basic things, they can do it by
regulation as long as they don't interfere with the procedure
of due process.
Mr. Cummings. Let me ask you this, Professor Dash. Does any
agency allow its officers to refuse to comply with a subpoena?
Mr. Dash. I was shown during our break a memo, or I guess
it is a report, which does surprise me, in which, apparently,
the Coast Guard was saying they were not going to comply with a
subpoena. That does surprise me a great deal. Normally, of
course, you would file a motion to quash a subpoena. I
understand that, in the Coast Guard, there is no interlocutory
appeals, meaning that they can't appeal if they lose with the
ALJ immediately to the Commandant. But it would seem to me that
you just don't refuse to comply with a subpoena.
Let me explain that a little bit more, because, way back in
my distant past, I have handled hearings for the government.
And even when you think that a subpoena by the ALJ really is
not relevant, you comply unless, unless it is really onerous,
that they want a room full of--in other words, that you have an
extraordinary circumstance. But normally, you just comply with
the subpoena. To me, to say to an ALJ, I am not going to
comply, is, I think, demeaning and undercuts, of course, what
an ALJ stands for. So unless there was some really good reason,
such as it would be almost impossible to comply with it, for
them to say to the ALJ, we refuse to comply is bothersome.
Now, there are sanctions in the rules as to what the ALJ
can do, such as taking the negative imprints or proving what
was attempted to be proved by the discovery. But if that
doesn't work, because I don't even know what the evidence is
that is being asked for, they can, in the interest of justice,
actually dismiss. Now, that is not in the sanctions part of
discovery. But you will find, in 103, it does say that the
ALJs, as well as the Commandant, can, unless it is against the
law, more or less waive the rules and take whatever action that
they deem necessary. So, to me, the ALJ, if I was in an ALJ's
position and the government refused to comply with a subpoena
without having really a fairly good reason, certainly dismissal
would be the answer. And of course, then the government can
appeal that up to the Commandant, as I understand it. Now, it
is long-winded, but I never have frankly heard of the
government refusing to comply with a subpoena of an ALJ unless,
again, you have extraordinary circumstances.
Mr. Cummings. Professor Dash, Mr. Hewig, I always tell my
office, tell me what, so what and now what. And Mr. Hewig
talked about what, so what and the now what. And he made some
suggestions. Do you remember what he said about his
suggestions? Does he have to repeat them? Because I wanted to
get your comments on his suggestions as to how to remedy some
of these situations, if appropriate.
Mr. Dash. I would feel more comfortable if I could hear
them again.
Mr. Cummings. Why don't you briefly, Mr. Hewig, just run
down your recommendations? By the way, we do appreciate you
making recommendations. But go ahead.
Mr. Hewig. Thank you, Mr. Chairman. My recommendations are
three-fold: first, that ALJs must be independent, and I
referred to the FAA model under which decisions made for
license or civil penalty matters by the FAA, the Federal
Aviation Administration, are adjudicated by Administrative Law
Judges that are outside the employment of the agency. In the
case of the FAA, it is the NTSB.
Mr. Cummings. All right. Stop there.
Your opinion, Mr. Dash.
Mr. Dash. Again, I would have to preface it by saying, I am
prejudiced. I have always been for the position that
Administrative Law Judges making decisions impacting on
agencies should be outside of the agency. Years ago, it was for
actually an ALJ corps. But I certainly like the idea that you
would use ALJs who are not part of the agency itself. And as
you know, this is a very big debatable thing in advent law. But
yes, I would like that recommendation very much.
Mr. Cummings. All right. Number two, Mr. Hewig.
Mr. Hewig. Number two was that some limited discovery
should be granted as of right. And by that, I mean, that it
should not be within the discretion of the Administrative Law
Judge. The guidelines, or I should say the regulatory
prescription for discovery that were amended and enacted in
1999 have in fact, by both Judge Massey's information and also
my experience, been used to stifle discovery rather than to
encourage it. I think that something such as, for example, 10
or 15 interrogatories as of right and 5 to 10 document requests
as of right would go greatly to accelerate the pace of the
hearing and perhaps also serve as a catalyst to settlement.
Mr. Cummings. Professor Dash.
Mr. Dash. I would go along with the recommendation if you
want to set a minimum of documents. I would be a little
constrained about having any requirement for so many
interrogatories or depositions taken out of the discretion of
the ALJ. The reason I say that is, there were some obvious
hearings where the ALJ is one who is best to determine whether
or not you need actual depositions or interrogatories. To make
it a mandatory type thing, I question that; I question that,
where you say there must be a minimum, if requested, so many
interrogatories. That gives a certain control to the
respondents, and it takes it away from the ALJ. The whole point
of administrative hearings is that you want to expedite them;
you want to make them fair but also reasonable; and that the
Administrative Law Judge should be given that discretion. If
they feel there is a need for 5 or 25 interrogatories, that
they can order them. But if they don't feel there is a need for
it in this case, I think that should be left to them.
Mr. Cummings. Mr. Hewig, the last one.
Mr. Hewig. The final one related to evidence and findings
relating to science and medicine.
Mr. Hewig. In those instances, in those matters where a
legal outcome is determined by a regulation involving
scientific or medical evidence or measurement--and here I
specifically refer to the first case in my written statement in
which a mariner was found to have, quote, "substituted" his
urine specimen because the creatinine count in his urine sample
was below a cutoff--I say "arbitrary" and it was--of 5 mg per
DL. Because he came in at 3 mg per DL, the regulations
compelled a finding of substitution and then compelled a
suspension of the license. That decision occurred in 2000.
In 2001, the Coast Guard and the Department of
Transportation undertook a review, and in fact, they reversed
themselves. Their science was quite simply wrong, and the
subsequent regulation amendment amended that 5 mg per DL
creatinine lower-level cutoff down to 2.
So the point here is that science is an ever-changing
field, and those absolutes do not work to justice, and my
recommendation here is that where you have got regulations that
relate to the submission and rely upon scientific evidence or
medical evidence, that you ought to make it not absolute but a
rebuttable presumption so that evidence can be brought in to
show, if it exists, that a particular mariner's test results
are outside the normal pool of probability for good cause
shown. It should not be absolute. It should be a rebuttable
presumption on a case-by-case basis.
Mr. Cummings. Got it.
Professor Dash.
Mr. Dash. I would have a problem with that recommendation
because the purpose of rules and regulations is to, more or
less, give definitive answers to certain things. What I am
getting at is that, if in the process of coming out with
regulation, they have the support and the evidence--the
substantial evidence--to say that 3.2 or whatever it is is no
good, that should be permitted, and that should control the
hearing because, otherwise, you are going to be having some
hearings that can go on and on and on in which you have got to
have experts coming in, testifying. It is a problem because
many hearings, as I understand, do not even have lawyers. It is
the respondent who is representing himself.
I just think it complicates it, because there is an answer.
The answer is that if there is evidence that the standard in
the reg is a problem, well, then you can always recommend that
the regulation be amended, and this can be done, frankly, by
lawyers from the outside if they wish.
Anyway, it is long-winded again, but I am bothered by that
kind of a mandatory thing that you must hold a hearing to
decide whether it is 3.2 or 5.2.
Mr. Cummings. Mr. LaTourette.
Mr. LaTourette. Thank you very much, Mr. Chairman. I just
want to sort of close my thoughts on this panel.
One of the things that propelled us here was an article
that made as its premise that there were 6,300 cases filed, and
the mariners only won 14 times. I think everybody would agree
that if those were the true facts, that something really is
wrong.
What I discovered today, at least from your testimony,
Judge Fitzpatrick, was as you described the case, as was
referenced in that article, you had an LNG potential accident
where someone could have been killed. And despite the fact that
the government was seeking revocation of the credentials, you
went the extra step and made it 8 months rather than permanent
revocation. I do not find anything fixed about that case.
Judge Massey, I certainly never meant to cast any
aspersions about your career. I think it has been
distinguished, and as a matter of fact, your testimony
indicates to me that you were a very thoughtful judge. And as
to the case that you described--and I assume the document that
the Chairman was questioning--something about the subpoena, if
I understood your testimony right, when the government did not
produce documents or have additional discovery that you had
ordered, you dismissed the case.
Isn't that what you told us?
Judge Massey. That is correct, sir.
Mr. LaTourette. Yes, that is exactly what you are supposed
to do.
Professor Dash, just from my experience, people did not
comply with discovery all the time, and there was a remedy. I
mean, you got rid of the charge; you sanctioned them; you fined
them; you put them in jail--whatever the rules permitted you to
do--and I think Judge Massey did the exact right thing. So I am
not leaving this panel with the belief that somehow this system
is fixed against the mariner. I am leaving it with the sense of
perhaps what Judge Lawson said in the article, that the chief
judge was a little heavy-handed in how he interpreted the
regulations. I think maybe we should look at that.
I think Mr. Hewig's observation and Professor Dash's
observation about having the finder-of-fact outside the agency
is a good one. I think I can be supportive of that, and that
makes sense to me, but I am not finding that this is somehow,
as was suggested in print, a system that is fixed against the
mariner.
I think I know your answer, Judge Fitzpatrick, but do you
disagree with that?
Judge Fitzpatrick. Oh, no. I mean it is definitely not
fixed against the mariner.
Mr. LaTourette. Judge Denson, do you think that it is fixed
against the mariner?
Judge Denson. I think to the degree that it can be a bad
influence for the mariner the way the regulations are applied
and where the regulations are--what they are, I think, can be
looked at as a negative towards the merchant mariner.
Mr. LaTourette. But you, as an Administrative Law Judge,
didn't you always treat your cases and the litigants fairly?
Judge Denson. I can say, in all honesty, I did; and in
fact, on two occasions, I think I bent over back too far with
some Yemen men who appeared in front of me because I think I
had some prejudice there, and they were buying documents up in
Washington State, Seattle, to get an endorsement on it. And I
really should have revoked their licenses, and I tried to be--I
think I ended up--I should have been more severe in my order
against them. But those are the only two times I can think of.
Other than that, I think I do the very best I can with the
facts and with the information that is given before I give the
sanction.
Mr. LaTourette. Then, Judge Massey, I assume from your
testimony you always gave everybody a fair shake in your
courtroom, did you not?
Judge Massey. Yes, sir, I did, and I paid a price for it.
Mr. LaTourette. I understand your testimony perfectly, but
again, this notion--I think there are two separate issues here.
One, is the chief judge's interpretation of the regulations
heavy-handed or is it, as the professor suggested, perhaps not
the way that it should be? We have the issue that Mr. Hewig
brought up that perhaps the ALJ should be outside the umbrella
of the Coast Guard itself.
The second issue is--and what are there, seven
Administrative Law Judges and one chief? Is that what it is?
Does anybody suggest that any of these men and women--with all
of the experience that you have talked about, Judge Massey, and
I assume all of the experience that both of you have, that they
are not treating mariners fairly in this country?
Judge Fitzpatrick. I think they are being treated fairly.
Mr. LaTourette. Judge Denson.
Judge Denson. I have knowledge of some where they have not
been treated fairly. But on the whole, I think they are well-
intentioned ALJs who are trying to do their jobs.
Mr. LaTourette. Judge Massey.
Judge Massey. I have specific knowledge of at least one
case where a mariner was not treated fairly by another judge,
and that is in the documents I submitted.
Mr. LaTourette. Okay. Was it a discovery issue?
Judge Massey. No. It was a case where the chief judge, or
someone on his behalf, had communicated to the sitting judge
how the case was going to come out.
Mr. LaTourette. Is that the fellow you had lunch with?
Judge Massey. Yes, sir, it was that instance.
Mr. LaTourette. Okay. That was alarming to me because I
read that you were a spectator in his courtroom, that you had
lunch with him and that he made some observations. I think that
was a pretty serious allegation, and I think that was Judge
Brudzinsky. Is that his name?
Judge Massey. That is correct.
Mr. LaTourette. I think we should have him together with
Wilson and Jordan here, and let us get to the bottom of this.
Thank you all for your excellent testimony. I enjoyed it.
Mr. Dash. Excuse me, sir. Could I respond to one thing that
you had mentioned?
My problem with the saying "we will not comply with the
subpoena"--and you had indicated that the judge went ahead and
dismissed the case. I would recommend the interlocutory
appeals.
Why do I say that? As you well know, if you fail to comply
with a subpoena in a Federal court, aside from the possible
contempt, and you have the case dismissed, that is going to be
supported by the appellate court. The problem here is that when
it goes to appeal to the Commandant, he can overturn the
dismissal, which undermines, of course, the ALJ.
It would be better if they had an interlocutory appeal
where, if the government felt that the discovery request or
subpoena were wrong, and filed a motion to suppress that was
denied, that they could take it then to the Commandant, rather
than having the Commandant overturn the dismissal. That, to me,
hurts an ALJ's status.
Mr. LaTourette. I heard you say that. You know, the thing I
love about working with the Chairman is that he is always
looking at how can we make things better. So we asked you and
Mr. Hewig those questions.
So, on that list of things to do, would it be your
recommendation that we look to modify that regulation that
would provide for that interlocutory appeal if the government
felt that an ALJ's order of discovery were not appropriate?
Mr. Dash. Yes. So you do not have this absurd position
where the government is saying to an ALJ, "No, I will not
comply." then, of course, you have a dismissal, and then of
course, the ALJ loses at the Commandant level.
Yes, I would certainly recommend that they have an
interlocutory appeal.
Mr. LaTourette. I think that is a great suggestion.
Judge Fitzpatrick. Mr. Chairman, may I make one comment
with respect to what Mr. Hewig said?
The scientific evidence that he is talking about has
nothing to do with the Coast Guard. That whole determination
with respect to the pH level and the creatinine level is done
by the Department of Transportation in its scientific and in
its drug section, and they have produced whatever the
regulations or the memorandums are that govern the scientific
testimony throughout the Department of Transportation, not only
the Coast Guard but every other agency. So that when the Coast
Guard is looking at that evidence, it is looking at the DOT
determination with respect to the scientific evidence, not its
own.
Mr. Cummings. I want to thank all of you.
Just to wrap this up, I think that we have a situation
where I truly believe that the judges do everything in their
power to do things fairly. That is not the issue.
The issue seems to be, to me--and I am just listening to
all of this--the heavy-handedness of a chief judge and to what
degree that heavy-handedness crosses the line of the degree
that an ALJ should have the right and privilege to be
independent. It seems to me that is part of the problem. It is
one thing to dispense justice. It is another thing to dispense
justice when you feel like you have got to go over 50 million
hurdles to do it. And that seems to me to be what Ms. Denson
and Ms. Massey are saying.
So, just to close this out, Ms. Massey--and I want to just
finish this, your piece--on April 8, 2005, did you have a
meeting with Chief Judge Ingolia in Baltimore?
Judge Massey. I did.
Mr. Cummings. I want you to be brief because we are going
to have to wrap this up. Who else was present at that meeting?
Judge Massey. Initially, it was myself, Judge Ingolia,
Judge Jordan, Megan Allison, and Ken Wilson.
Mr. Cummings. Did the chief judge discuss his views on what
types of prehearing discovery were appropriate?
Judge Massey. Yes, sir, he did.
Mr. Cummings. During your meeting with the chief judge,
were any of the issues that were previously discussed--during
the meeting of staff, of the District 8 Legal Department, of
the Marine safety officers, of the chief ALJ's office, and the
Commandant's legal office already mentioned--brought up and
discussed when you then met with the chief judge.
Judge Massey. Yes, sir.
Mr. Cummings. Can you tell us about that briefly?
Judge Massey. In a nutshell, sir, he told me that I needed
to stop allowing discovery in S&R cases; that I was never to
require the Coast Guard to do one minute's more work than I
wanted them to do; that I was never to rule against the Coast
Guard unless there was absolutely, positively, no way I could
get out of it; and that I should never follow a regulation if
the Coast Guard were not in agreement with that regulation.
Mr. Cummings. Now, Professor Dash, you will remember I just
talked a little bit, a moment ago, about heavy-handedness and
where the line is supposed to be drawn. And the reason why I am
saying the things that I am saying is that, having practiced
law for many years, I can tell you there were three cases in
probably the 2,000 or 3,000 cases that I tried that stick out
in my head, and all three of them were cases where I felt that
my client was not treated fairly. I will go to my grave
remembering those cases.
They were not big cases, but I remember them, and I am just
wondering. We talk about the appearance, not just whether
injustice or fairness is there, but whether there is the
appearance, and I am just wondering--and I do believe that in
order for any justice system to survive, the parties must
believe--now, I am not saying they are going to always be happy
about decisions, but at least that they were treated fairly and
that they had a shot when they walked into the courtroom.
If what was just said were true by Ms. Massey, is that in
any way in your opinion stepping across the line?
Mr. Dash. I am stunned. And of course, I would love to hear
what the Coast Guard has to say. But if, in fact, an ALJ were
told that, I am stunned.
For example, it is so much against the law. The government
in these cases has the burden of establishing by a
preponderance of the evidence, since they are the ones who are
bringing the charge, to establish that in fact the mariner did
something wrong.
To say that you always rule for the government, unless it
is something extraordinary, violates, frankly, the APA, and it
violates their own statute. So I am not assuming, by the way,
that this was said, and I am not assuming that is what was just
said. It is just that if this is true, this is a violation of
many, many statutes as well as, obviously, going against the
whole spirit of what the APA is all about.
Mr. Cummings. Last question.
Out of everything that has been said--see, they can dismiss
the chief judge. The chief judge can leave, but that does not
necessarily solve the problem. What I am sure Mr. LaTourette
was alluding to is, if we are to do anything here, we want to
make sure that we put in place those things that will even--as
best we can, help to avoid even the appearance of injustice.
And so you all have talked about a number of things that we
might be able to do that will, hopefully, last when we are
dancing with the angels.
So are there any other things that you all can think of,
any of you, that we might do to--and I understand, Mr.
Fitzpatrick, you have had wonderful experiences, and it has
worked out fine for you. But clearly, there are some things
going on here, and if we held this hearing until the middle of
next year, we probably would not be able to get to the bottom
of it, but there are some things.
You have got the Coast Guard sitting here. You have got us
sitting here, and all we want to do is to try to make a system
of justice the very best that it can be. We cannot guarantee
anything, but we can try to put those pieces in place that help
to keep it on the straight and narrow as possible.
Do you have anything else, Professor Dash?
Mr. Dash. Yes. I think the one perfect idea is the one that
has already been approached. If you take the ALJ Corps for the
Coast Guard out of the Coast Guard, if the chief ALJ were not
down the hall from the agency head, the Commandant, I think
that would solve everything. It really would. It would solve,
certainly, the appearance of impropriety, because I am a big
believer that the bigger the separation you have from the fact-
finder--from the prosecutor or the from the agency--the better
the system is; and if they could, just take the ALJs out of the
Coast Guard and have them decide their cases from some other
entity.
A good example, for example, is looking at the National
Labor Relations Board and how they operate, how they separate
their ALJ group completely from the General Counsel's Office
that does the prosecution. There are other agencies that are
very similar, that do the same thing. What I detect in looking
at this is not any bad faith or any evil, but if there is an
appearance of impropriety, it is because the ALJs, the judges,
are too closely connected to the prosecutors and to the agency
itself, and they should be separated.
Mr. Cummings. All right. Mr. LaTourette.
Mr. LaTourette. Just one last observation, Mr. Chairman.
I think what Judge Massey said is an unbelievable
statement. As to Judge Ingolia, I will repeat I think he has
been accused of criminal conduct and, if not criminal conduct,
unprofessional conduct of the highest order. My belief is that
he should have the opportunity to explain himself, and if he
made those observations in that meeting to Judge Massey that
occurred in Baltimore, Maryland, I think we should do something
about it. But if he did not, I think he should have the
opportunity to come and explain himself, because at the
beginning of this hearing, I introduced the memorandum that
came out of that meeting of April 8, 2005. This is a serious
matter. This is the United States Congress. This is a public
forum, and this man, in my opinion, whom I do not know, has
been accused of pretty serious stuff.
Mr. Cummings. Mr. LaTourette, let me be very clear.
I agree with every syllable you just said. I think you know
me well enough to know that when witnesses have appeared in any
hearing, and if I feel that they have been not treated properly
by Members of Congress, I make it clear that I have a problem
with them. As a matter of fact, I have actually apologized to
witnesses for the conduct--of the way they were treated by
other Members of Congress. And the same goes for someone who is
not here, particularly somebody of that stature. I would
imagine, you know, those comments will be repeated in some
periodicals and whatever.
Let me say this: that we did ask for anybody who was in the
system, the ALJ system, to just come forward, and we were not
able to get the folks who we wanted. I promise you I will work
with you to make sure--because I think you are absolutely,
unequivocally correct. I think that anyone should have an
opportunity--since we are here talking about fairness, that
folks should have an opportunity to make sure that they give
the other side of the story. And I promise and I commit to
working with you to get not only the chief judge but the other
two people who you also mentioned before us, too.
In the meantime--did you have something, Ms. Denson? I
thought you were raising your hand.
Judge Denson. I wanted to make one last comment if I may.
Mr. Cummings. Sure.
Judge Denson. We are talking about all of us judges
assuring you that we want to provide fair hearings and that we
do our very best to do a good job. But the seamen still have a
sense that they are not getting a fair shake; and we have to
look at maybe other things, other than the ALJs' doing their
job, to look at what is giving them the appearance that they
might not be getting a fair hearing.
I had some instances, I think I put in the paper, that said
when we judges are asked to train IOs to put on cases in front
of us, I believe I was the only one who refused, and I
explained why. If I could provide the same opportunity to the
respondents and their attorneys who are putting on cases, I
would be glad to do that. But as to training the IOs to put on
cases in front of us, we are the Coast Guard judge. They have
got a one-upmanship over the respondents and their attorneys,
and I thought that was an appearance of impropriety. See, I
love to teach, but that is the only reason I would refuse to do
that.
Another thing is when a seaman walks into--no. I left in
1996, but when a seaman walks into a Marine Safety Office
building to have his case heard and the whole place is filled
with the Coast Guard, and there you have your judge, sitting
with the Coast Guard, and he comes in for his hearing, he is
going to get a fair hearing in my book and, I am sure, in
Peter's and in Judge Massey's.
What is the appearance to that person and his attorney? He
is surrounded by the Coast Guard, and that is an appearance of
impropriety. They might be getting a good hearing, I can assure
you with some of the judges I know they would be getting a fair
hearing, but the appearance is not there, and they still are
going to have that feeling.
Mr. Cummings. Well, I want to thank you, and I want to go
back to, of course, what Professor Dash said and, Mr. Hewig,
that suggestion that the separation would be a good one,
because I think that would cure--I think you are right,
Professor Dash--it would cure a lot of this, even the
appearance, because I do believe that the appearance--I mean,
you know, one, people can say it does not matter how the
respondent may feel or even how the Coast Guard may feel. But I
just think that it is just so basic and so important and so
American that folks believe, when they are walking into a
courtroom or a hearing room, that they have a fair shot, if
they just do what they are supposed to do, that they have a
fair shot.
I can tell you that in my practices--my practice over the
years, even when clients lost, if they felt that they had had a
fair shot--they may have been upset for a little while, but
they never came back to me and said, "You know what? I really
think that the deck was stacked against me before I got,"
except in the three cases that I mentioned.
So, with that--if you all, by the way, have any other
suggestions after, you know, you think about this a little bit,
please get them to us. We are going to try to--I will tell you.
This has been some very, very valuable testimony. We really do
appreciate all of you. We know that we have inconvenienced you.
We know that you are hungry, and so we are going to let you go.
Thank you very much.
The second panel come forward, please. Rear Admiral Brian
Salerno and Captain Thomas Sparks.
Both of you are going to testify, or just you?
Rear Admiral, are both of you testifying?
Admiral Salerno. Yes, sir. Both of us are going to testify.
Mr. Cummings. Okay. Fine. I just wanted to know.
Rear Admiral, thank you very much for being with us again,
and again, we would like to have your comments--I do not know.
I cannot tell you what to say, but it might be helpful during
your opening, if you want to--if you want to. Let me just save
you some time. You might want to comment on what you have just
heard. You all asked to be separate, so you had your chance to
hear what was being alleged, and so we will hear from you now.
But I do note after reading your testimony that there was not
one syllable--and I read it three times--that went to--there
was a lot of information about the numbers but none that went
to some of these allegations. And maybe that was intentional, I
do not know--but you have 5 minutes.
STATEMENTS OF REAR ADMIRAL BRIAN SALERNO, DIRECTOR OF
INSPECTION AND COMPLIANCE, UNITED STATES COAST GUARD,
WASHINGTON, D.C; AND CAPTAIN THOMAS SPARKS, COMMANDING OFFICER,
MARINE SAFETY UNIT, UNITED STATES COAST GUARD, PORT ARTHUR,
TEXAS
Admiral Salerno. Good morning, Mr. Chairman, Ranking Member
LaTourette, Members of the Subcommittee. Thank you for this
opportunity to speak with you this morning on the Coast Guard's
Administrative Law Judge, or ALJ, system. The intent of the
Coast Guard's ALJ system and the marine investigative process
through which mariners encounter the system is to ensure the
safety of marine transportation and the public. Credentialed
mariners are entrusted with enormous responsibility, often
involving the safety of their passengers, their fellow crewmen,
and the safe transportation of dangerous cargo, often through
densely populated areas.
The consequences of a safety failure involving the human
element extend beyond the individual mariner, and for this
reason, the Coast Guard and the marine industry expect a very
high standard of performance. The vast majority of mariners
faithfully carry out their duties in conformity with these
standards. At the same time, the process we use to impose a
sanction against a mariner's credentials, in those rare
circumstances where it is necessary, is remedial in nature, not
criminal.
I want to assure the Committee from the outset that it is
of paramount importance to the Coast Guard that the ALJ process
in our field investigative procedures reflect fair treatment of
the mariner. Of equal importance is that our procedures provide
the required independence for the ALJs. It was to improve due
process and to ensure fairness that our ALJ procedures were
updated in 1999 so as to reflect the best practices in
administrative law.
Currently, the Coast Guard administers credentials for over
200,000 U.S. merchant mariners. Each year, we take
administrative action against a very small percentage of those
mariners, less than 1 percent. Coast Guard investigating
officers may initiate a complaint against a mariner's
credential when there is evidence of misconduct, negligence,
incompetence. Or a violation of law or regulation while serving
under the authority of their Coast Guard-issued credential.
The use of dangerous drugs by a credentialed mariner, or
impairment while on duty, due to alcohol consumption, accounts
for the majority of all actions taken by the Coast Guard
against a mariner's credentials. The importance of keeping
mariners drug- and alcohol-free while performing their duties
cannot be overstated.
The 2003 Staten Island Ferry accident which killed 11
passengers and seriously injured 70 others and the Exxon Valdez
grounding with its subsequent massive oil spill serve as
prominent examples of why it is imperative that we impose
proper sanctions, when needed, to minimize risk in the marine
transportation system.
Coast Guard investigators recommend sanctions based on the
severity of the offense in accordance with the guidelines
provided in Federal regulations. These guidelines ensure fair
and consistent application of the suspension and revocation
actions sought by the Coast Guard. The vast majority of cases
where a sanction is imposed result from a settlement agreement
between the mariner and the investigating officer.
The ALJ's role in the settlement process includes the
review of each complaint to ensure legal adequacy of the
allegations and of the sanction. Cases that are not settled are
referred to the ALJ.
Since June of 1999 when the new procedural rules went into
place, there have only been 152 ALJ decisions and orders issued
after fully contested hearings; 21 of these resulted in full
relief for the respondent; 31 of these cases resulted in
partial relief or in a sanction less than that sought by the
Coast Guard.
Throughout the process, the Coast Guard is very mindful of
the fact that mariners' livelihoods are at stake when we seek
sanctions against their credentials. For that reason, we train
our investigators to exercise good judgment and objectivity and
to reserve suspension and revocation action for the most
egregious cases. In fact, over one quarter of administrative
actions taken against mariners were resolved with a letter of
warning. In cases that warrant action beyond a warning,
investigators are encouraged to help address the problem
through the recommended sanction.
For example, mariners who test positive for dangerous drugs
are offered the option of undergoing a rehabilitation program.
About 50 percent of the mariners who have their credentials
suspended for drug use and who elect to undergo treatment
eventually are rehabilitated and have their licenses or
documents returned.
The ALJ system and the investigative process are ultimately
oriented towards public safety. Like all systems, there are
always ways to improve. The Coast Guard is interested in
working with stakeholders to improve the transparency of the
process and to better serve the needs of mariners in the
maritime community.
Sir, I am out of time, but if you would like me to comment
on your question on the proposal to remove the ALJ process from
the Coast Guard----
Mr. Cummings. That was going to be the first question I was
going to ask you. Why don't we just wait and let Captain Sparks
say what he has to say, and then, you know, you will need to
be--I assume you are raring and ready to go, and that question
will give you a few more minutes to think about it.
Captain Sparks.
Captain Sparks. Good afternoon, Mr. Chairman and Mr.
LaTourette. I am Captain Thomas Sparks, Commanding Officer of
Marine Safety Unit, Port Arthur, Texas. I have been in the
service for going on 25 years now, and while I am a senior
judge advocate, I have also had significant field experience in
many other Coast Guard missions, principally marine safety and
marine security. I am currently in what we refer to as an "out
of specialty assignment"--that is a nonlegal assignment--at
Marine Safety Unit Port Arthur, which is a subordinate command
to Sector Houston-Galveston.
At Marine Safety Unit Port Arthur, I supervise
approximately 275 dedicated Coast Guard personnel--Active Duty,
so-called "full time" Title X reservists recalled to Active
duty, civilian employees, and drilling reservists. We are home
to the Nation's number one military outload port in support of
our troops in Iraq and Afghanistan, and we provide waterborne
security for all military outload vessel transits. We are also
the Nation's number one port for the importation of crude oil,
and we have one existing LNG terminal in my area of
responsibility.
I will note, with respect to this hearing, I have had
significant experience with the Coast Guard's S&R process
throughout my career, as I had been an investigating officer
myself prior to attending law school and, in fact, have
presented cases before Judge Fitzpatrick, who you just heard
from today. This was previous to the 1999 regulation changes.
Additionally, in subsequent assignments, I had increased
responsibility and authority. I directly supervised and oversaw
the work of investigating officers who presented cases before
Administrative Law Judges after the regulation changes in 1999.
In fact, I am in just such an assignment right now.
I am here today primarily in my role as a judge advocate,
representing the Judge Advocate General of the Coast Guard, to
assist Rear Admiral Salerno in answering technical legal
questions that you may have concerning the Coast Guard's
administrative law system, how it functions and how it affords
due process.
And that is where I was planning to end my statement, but I
thought I would take you up on your offer and speak to some of
the issues that had been raised by previous witnesses if it is
still okay.
Mr. Cummings. That is fine.
Captain Sparks. Yes, sir.
The first point I want to make is that Professor Dash
referred to a sentence in the memo at issue, the guideline memo
at issue, basically stating that the Federal Rules of Civil
Procedure should not be considered when it comes to a discovery
matter. I would like to clarify that whole issue by reading the
entire provision that is in part 20, 33 CFR.
It reads, "Absent a specific provision in this part the
Federal Rules of Civil Procedure control."
Now, there are several-pages' worth of specific provisions
on discovery in part 20, and I will suggest to you that seeing
through that lens, it is not a controversial proposition. In
fact, it is a very straightforward proposition that, therefore,
the Federal Rules of Civil Procedure do not apply with respect
to discovery.
Next, there was mention by a previous witness--I believe it
was Mr. Hewig--recommending that some basic or limited level of
discovery be provided for in the regulations, and he said that
as that should be a change.
I would suggest to you that there is already a basic
limited provision on discovery in the regulations as they exist
right now, and essentially, it is almost an automatic exchange
of witness lists and exhibit lists, including summaries of
expected testimony from the witnesses.
The third point I wanted to make is that Professor Dash
talked about a waiver provision, that is in part 20, which
allows the Administrative Law Judge to deviate or to waive any
of the rules contained within that part. And I just would like
to read the entire provision just to put it in context.
It says, "Except to the extent that a waiver would be
contrary to law, the Commandant, the chief ALJ or a presiding
ALJ may, after notice, waive any of the rules in this part
either to prevent undue hardship or to manifest injustice or to
secure a just, speedy and inexpensive determination," end
quote.
I will just say that the phrase a "just, speedy and
inexpensive determination" is repeated in the paragraph just
above the paragraph I read. They are watch words that I think
convey the overall intent of the drafters of this regulation.
So I would just point out that there are extraordinary
circumstances that would permit an Administrative Law Judge to
waive one of the rules, but they should not be taken carte
blanche. Basically, we are talking about preventing manifest
injustice or undue hardship, and those are very high
thresholds.
Thank you.
Mr. Cummings. Thank you both very much.
I want to go to you, Captain Sparks, and to some of the
things you just said, at least one of them.
As I recall Professor Dash's testimony--well, he said a
lot, but one of the questions that I asked him was about these
guidelines that were set out by the chief judge, and I quoted
from those guidelines. And it says these words, quote, "And the
ALJ should not rely on Federal Rules of Civil Procedure for
discovery matters."
I guess what I was trying to get to--and it seems like you
are, in part, verifying my understanding--is that there is
certain discovery, as you said a moment ago, that is already
there. I mean it is pretty much there. It is rather significant
discovery. The question went to when the chief judge says that
the ALJ should not rely on the Federal rules, whether he is
then limiting discovery more than, say, the Federal rules
would.
Are you following what I am saying? I know all of those
provisions that you talked about. There are quite a few--you
are absolutely right--but if the chief judge is basically
saying that, okay, we do not want you to deal with--now, this
is the chief judge. I am talking about what the chief judge
says. You know, forget about the Federal rules. We have got our
rules and know our rules pretty much. We want to make sure that
they are not things that are going the opposite of one another.
I know that there are things that are already stated with
regard to the ALJs. I have got that.
What I am saying is there may be more rights under the
Federal rules that are not spoken to with regard to the ALJ.
Are you following what I am saying? Does that make sense? Are
you there?
Captain Sparks. I think so.
Mr. Cummings. Okay. I am just wondering. It seems to me
that there was an effort--and I think this is what Professor
Dash was saying--to perhaps limit the discovery with regard to
the ALJs.
Captain Sparks. Well, sir, I have never talked to the chief
judge, and I cannot be inside his mind, but my read of this
memorandum is that, first of all, it is a set of guidelines.
The word "guideline" appears at least three times. It is in the
subject line. It is in the first paragraph, and it is in the
last paragraph.
I look at it as a clarification more than anything else.
Virtually every word is cut and pasted verbatim either from the
regulations themselves, or from the preamble to the Federal
rulemaking just prior to the regulations coming into effect.
So I think the rules themselves on discovery do, in fact,
limit discovery because they explicitly create very high
hurdles to get beyond the so-called "mandatory discovery" that
is initially provided for and is almost automatic. Those
hurdles are to get to further discovery that it will not
unreasonably delay the proceeding, that the information sought
is not otherwise obtainable, that the information sought has
significant probative value, that the information sought is
neither cumulative nor repetitious, and that the method or that
the scope of the discovery is not unduly burdensome and, in
fact, is the least burdensome method available.
Now, on top of that, when you talk about specific discovery
mechanisms such as interrogatories or depositions, there are
additional requirements that overlay those.
Mr. Cummings. Again, I think it would be good to hear from
the judge because I think, when you put a statement in
guidelines and say--and I mean this is the sentence, "The ALJ
should not rely on the Federal Rules of Civil Procedure for
discovery matters," period. I mean that is a problem, and it
sort of goes against some of what you just said, I think. But
let us move on from there.
Rear Admiral Salerno, tell me what your opinion is with
regard to what Professor Dash has said with regard to taking
these cases from under the Coast Guard.
Admiral Salerno. Well, sir, our view is that there is a
great deal of value in retaining the Administrative Law Judge
program within the Coast Guard.
Mr. Cummings. Why?
Admiral Salerno. Well, this allows the judges to become
very acquainted with all of the maritime regulations to which
mariners are held. They understand the mission focus of the
Coast Guard and how their role serves the marine safety
purposes of the program.
We also recognize the imperative that this process be
independent, and we believe that we actually have the
procedures in place to preserve that independence. At the same
time, we will objectively consider any recommendations that are
made by the Committee that would offer alternatives to that
current process.
Mr. Cummings. Do you think it is important, Rear Admiral,
that the mariners and the Coast Guard feel, when they walk into
a hearing, that they are going to be treated fairly? Do you
think just to know that or to feel that or to believe that is
important?
Admiral Salerno. Absolutely. Yes, sir.
Mr. Cummings. Does it concern you that there are folks in
the mariner community--and I can tell you--I do not know if you
heard what I said from the very beginning. There is nothing
that we have done--and we have done quite a bit in this
Committee over the last 7 months--that has drawn more attention
than this. There are comments from mariners, e-mails, things of
that nature. They are just very concerned about it. Does that
concern you? Would that concern you?
Admiral Salerno. Yes, sir, it does concern me.
Mr. Cummings. So Mr. LaTourette was saying--and I am sure
he said it on the record, I think he did--that this removal--he
and I agree on this, and perhaps pulling them out from under
the Coast Guard might be helpful in the sense that it could
cure--whether you want to believe there are problems or not is
a perception--that it could cure some of these perception
problems.
I am sure you would agree with me that we would hope that
those problems do not exist, but the fact is that a lot of
folks apparently feel that way, and I am putting aside-- while
Mr. LaTourette has referred quite a bit to the Sun paper
article, I put that aside to try to get down to some other
things, you know, conduct-type things that I have heard about;
trying to get to those because I can tell you--and Mr.
LaTourette alluded to this--some of the charges were very, very
serious and are the types of things that in most jurisdictions
could get a judge in a lot of trouble.
So I just think that maybe we need to take a look at that.
And I know the Coast Guard is a very strong and a great
organization, but I think sometimes, I think, we have to do
everything. And I am just asking you, if you can.
Other than the things you have just stated, what issues
would you have or would the Coast Guard have with regard to
separating and having these cases tried outside of the Coast
Guard?
Admiral Salerno. Well, sir, in addition to what I just
mentioned, I would like to point out that there are two levels
of administrative review in the current system. Certainly,
there is a review to the Commandant, and then a respondent, if
they are not satisfied with that level of review, can take the
case to the NTSB. So it does go outside of the organization in
an administrative proceeding.
Beyond that, there is recourse to the Federal court system
so that a respondent does, in fact, have avenues outside of the
Coast Guard to further hear a case and to evaluate a case on
the merits.
Mr. Cummings. Let me ask you this.
Going to what the Rear Admiral just said, Captain Sparks,
if a mariner comes in and he goes before Judge Massey or before
Judge Denson and his license is taken away, his privilege to do
his livelihood, what happens during an appeal? Is that judgment
then suspended while they go through appeal? How does that
work? Do you follow what I am saying? In other words, the
license is suspended--I mean not suspended, but revoked. What
happens then?
Captain Sparks. Well, there are two avenues, at least two
avenues open to the respondent at that point. They can apply
for a temporary license if their license has been suspended. If
it has been revoked, there is also a process called
"administrative clemency," and then the respondent can also ask
that the case be reopened again and looked at like Judge
Fitzpatrick referred to when he, I think on his own initiative
there, reduced the sanction in the case of the pilot who almost
caused the horrific accident with the LNG vessel.
Just like Admiral Salerno says, there is also an avenue of
appeal directly to Commandant and then beyond the Commandant--
and the Coast Guard is unique in this--to an outside
independent agency, the National Transportation Safety Review
Board. Then even beyond that, it goes to a judicial circuit
court.
Mr. Cummings. I guess what I am trying to get to--and I am
not a mariner, but I guess what I am trying to get to is, when
we have got someone whose livelihood depends upon being able to
do the things that mariners do, and they lose the opportunity
to do that, the only question I am trying to get to is--you
know, sometimes--let me go back.
I used to represent lawyers, and if a lawyer got in
trouble, a lot of times what would happen is, if he were, say,
put out of business or suspended for 6 months, that was like
being disbarred for 10 years, because he lost all of his
business; his reputation was destroyed; and just getting back
would be very, very difficult.
I guess what I am trying to figure out is that when we talk
about these appeal processes, what happens in the meantime? In
other words, you lose your license, but you said you can get a
temporary license. You can get--what else?
Captain Sparks. You can apply to get your license back,
even after it has been revoked, through a process called
"administrative clemency."
Mr. Cummings. Yes, but during that clemency, you do not
have your license--right?--until you get it back?
Captain Sparks. Correct.
Mr. Cummings. So, in other words, you can go to a hearing,
and at that moment, like they do it in Baltimore at least, the
judge can say, "Give me your license."
Is that what they do there, too?
Captain Sparks. Yes, sir.
Mr. Cummings. Oh, okay.
So you do not have a license. That is a problem.
I guess what I am trying to get to, Rear Admiral, is that I
just think that, when you are talking about something as
serious as taking away somebody's livelihood, we need to take
all of these things into consideration. Not that the same thing
would not happen even if it were separated, but at least,
hopefully, we would be able to cure some of these perceptions
other than fairness--do you follow me--in very serious cases.
Admiral Salerno. Yes, sir, I understand your concern there.
I would like to point out, sir, that in the investigative
process that takes place at the field level, our investigators
are trained to use a great deal of objectivity and judgment and
even bring in a case before an ALJ. In many cases that deal
with minor infractions, our investigators may just issue a
verbal warning. There is no record to this.
An example might be, you know, a pilot on a vessel hits a
navigational aid. Technically, you can bring somebody to a
hearing for that, but in many cases they may just give a verbal
warning or, in more serious cases, a letter of warning. Then it
does become a matter of record. But they try to resolve cases
at the lowest possible level. The default position is not
necessarily to bring people to a hearing. That is reserved for
the more serious cases or the drug cases as we mentioned
before.
Mr. Cummings. I have got you, but let us go back. You were
talking about investigating officers. Then I will turn it over
to Mr. LaTourette.
Judge Denson mentioned that she was asked to train
investigative officers, and I was just wondering, is that a
normal practice, do you know?
Admiral Salerno. It is not normal practice. Certainly,
since the rules went into effect in 1999, the separation is
much more of a bright line issue. There is one exception to
that, and that is, at our training facility in Yorktown where
we train our investigating officers on the procedures for
conducting hearings, usually towards the end of this multiweek
course, we may invite an ALJ to come in and perform in his
normal role as a judge at a mock hearing.
In the way that training is conducted, the judge does not
provide any instruction to the IOs. He does not critique their
performance. That is left to the course instructors. His role
is simply to----
Mr. Cummings. Or hers, what her role is.
Admiral Salerno. --or her--and just play out their normal
role, and then they leave. But as far as any other training, I
understand that may have occurred in some instances in the past
before the 1999 rules, but that is not occurring today.
Mr. Cummings. The last question.
Rear Admiral Salerno and Captain Sparks, if an ALJ in an
adjudication issues a subpoena or a discovery order, does the
Coast Guard choose which subpoenas or discovery orders it will
comply with and which it will not comply with? What is the
policy with regard to such orders, if there is one?
Admiral Salerno. If a judge issues a subpoena, our
expectation is it will be followed.
Captain Sparks. I agree. I do not know that we have got a
specific policy. I think it is just generally understood we do
what the Administrative Law Judge directs.
Mr. Cummings. So did it surprise you when you heard the
testimony--I think it was from Judge Massey--that folks just
said that they were not going to comply, that the Coast Guard
said they were not going to comply? Did that surprise you at
all?
Captain Sparks. Very much. I was similarly surprised with
her recitation of her meeting with Chief Ingolia. It is almost
incredible.
Admiral Salerno. I concur, sir. That would be contrary to
the way we train our investigating officers. The expectation is
when the judge issues an order, we follow it.
Mr. Cummings. So, in listening to the testimony of Judge
Massey, would you say that you all were surprised by
particularly my last line of questioning when I asked about
when she talked about the chief judge and what she alleged was
said to her? You all were surprised by that?
Captain Sparks. Very much so, yes, sir.
Mr. Cummings. All right.
Admiral Salerno. Yes, sir.
Mr. Cummings. So what you are trying to tell me is that you
would agree that if that were true, if what she were saying
were true, that would not be inappropriate; is that right?
Captain Sparks. I would prefer to look at it this way.
In my nearly 25 years in the Coast Guard, Administrative
Law Judges have been treated--we have a culture where they are,
essentially, revered. They are respected. Ex parte
communications are verboten. And I just cannot imagine
something like Judge Massey described as happening.
Mr. Cummings. All right.
Mr. LaTourette.
Mr. LaTourette. Thank you very much, Mr. Chairman.
Captain Sparks, I know that judge advocates in this
instance are not prosecutors per se, because these are not
criminal proceedings, and the level of proof is a preponderance
of the evidence. But I guess, because you are dealing with the
potential revocation of someone's license and therefore
livelihood, they are semi-quasi criminal.
When I was the prosecutor, I always felt that the
prosecutor had a great obligation. And I think the thing that
is really disturbing me about this newspaper article--and I am
sorry for bringing it up again--is that somehow wins, not just
on the belt, are more important than doing justice. And to the
folks who I worked with in the prosecutors' office, yes, it was
embarrassing if you lost a case. Nobody likes to have brought
an indictment or a charge to find out not to be right. But
during the course of dealing with a case, if you discover you
have got the wrong person or you have got the wrong charge or
the facts are not there, I mean, is it your observation or
experience that the judge advocates also are there to do
justice, not just to win cases?
Captain Sparks. Most assuredly so. Before they ever get to
the case stage, these investigations are thoroughly vetted at
the unit level before a decision is ever made to go forward
with an S&R case. And we do realize the devastating impact it
can have on a mariner and his or her ability to, you know, have
a livelihood. It is not something we take very lightly. To the
contrary, there is also a certain level of nervousness or
anxiety in going before an Administrative Law Judge.
So, if for no other reason but a selfish motivation, we
want to be absolutely, positively sure that, you know, there
has been, you know, an act of misconduct or of negligence or so
forth has been committed and the evidence is overwhelming.
Mr. LaTourette. I appreciate that very much. And I would
make this observation. I have read the chief judge's memo
relative to, don't follow the rules of civil procedure the way
that you did. And that is, if the regulations are silent, if
they speak to the issue, the discovery issue, then you don't
use the Rules of Civil Procedure. If the regulations are
silent, then you should turn. And I didn't view the chief
judge's memo--I guess I would disagree with the professor's
observation and I guess the Chairman's, too. But I would say
this; that based upon Judge Massey's observation about the
chief judge, that if he actually said the things that she
alleged that he said, then I guess I won't give him the benefit
of the doubt on the memo.
And so my question to you, Admiral Salerno, is, the
Chairman has indicated that the staff reached out to try and
get people who were in this meeting in Baltimore, and we also
had two other judges sort of had their reputations, I think,
pretty severely attacked during the course of this hearing, are
you aware of anything from the Coast Guard then that would
prevent Mr. Jordan, Mr. Wilson, Chief Judge Ingolia and Judge
Brudzinsky--I know that there are some lawsuits flying around
and so forth and so on. But if I was Judge Ingolia, Judge
Massey accused him, and I think it is a crime to say that no
matter what the facts are, no matter what you think, you have
to rule for the Coast Guard. And if he actually said that, the
guy shouldn't be in his current job; he should be in jail. But
if he didn't, I think he should have the opportunity to come
here and set the record straight. So is there any impediment
that you guys not want these folks to come and talk to us about
this?
Admiral Salerno. Sir, the impediment is the lawsuit. There
are three of them. Judge Ingolia has been named in his official
capacity and in his personal capacity in those lawsuits. In our
discussions with the Department of Justice, it is recommended
that he and several others not appear at this stage because of
that pending lawsuit.
Mr. LaTourette. How about the people that were in the
meeting? Jordan and this Wilson guy play a pretty prominent
role in our observations.
Admiral Salerno. I believe Mr. Jordan is also named in the
lawsuit. I am not sure about Mr. Wilson. I would have to
confirm that for you, sir.
Mr. LaTourette. Could you look at that, because those are
the names the Chairman may have? And Judge Brudzinsky, has he
been sued, too. He is the guy that went to lunch.
Admiral Salerno. I am getting confirmation from the back
row, sir. Yes, on all of those.
Mr. LaTourette. Wilson, too, is in the lawsuit?
Admiral Salerno. Yes, sir.
Mr. LaTourette. I would just hope that you or someone else
at the Coast Guard could come have a meeting with the Chairman
and try to figure out how we collect this information. Because
it bothers me on a lot of levels, the allegations that were
leveled here today. And then for the reasons that I--I don't
want to beat a dead horse, but I think I have explained why
they bother me. And I think a guy that has been accused of what
he has been accused of should have the opportunity to clear his
name. And I understand what those impediments are. But if you
can work with the Chairman and try to figure out how we can
gain access to the observations in a way that doesn't prejudice
either side in that lawsuit, I really think that would be
helpful.
Admiral Salerno. Sir, if I may, I would also like to state
that the Coast Guard categorically denies the allegations that
have been made in this lawsuit and, working through the
Department of Justice, has filed a motion to dismiss.
Mr. LaTourette. And that doesn't surprise me at all. I will
tell you, where I come from, and I guess I will disagree with
you, Admiral, in talking with the Chairman, I think that,
because it is my understanding that after the ALJ rules, you do
lose your license, and the next step is the Commandant and then
the NTSB. I do think that there is something to be said on this
whole appearance of impropriety. And I don't think this hearing
has shown that there is any impropriety of the Coast Guard or
the ALJ system at all. But I do think that it has demonstrated
that you can have that appearance. It is a little bit like
Congress, to tell you the truth. When we were in the majority,
I used to love to preside over the House. And my friends in the
Democratic party would come up afterwards and say, we like the
way you did it because we know we are in the minority, but we
feel we were treated fairly.
And I think that the Chairman is right on point with that.
Some people don't understand losing at all. But most people, if
you treat them fairly, understand that the facts weren't on
their side and they move on their day. And that is why I think
that this moving the ALJs out of the Coast Guard, and I
understand your opposition, has some attractiveness, and I
would hope we could talk about that, because you do run the
risk of these accusations. I assume you read the Sun story. It
is horrible. And I haven't come away from this hearing that
anything in that story relative to numbers, you may be a great
reporter, but you are not good at math, and it is not right.
But people deserve to be treated fairly. And to the extent
that they are not--and so if an ALJ that is in the Coast Guard
building rules against a mariner, it then has to go to the
Commandant, and the Chairman is exactly right, he doesn't have
his license. And even in the case, they put into the record
where the NTSB ruled with the guy and said, we should take a
look at this again; we are going to remand it. I assume he was
without his license for whatever period of time that took. And
that I think speaks that maybe we need to look at where the
ALJs sit. So I thank you both for your testimony.
I thank you, Mr. Chairman.
Mr. Cummings. Thank you very much.
Mr. Coble.
Mr. Coble. Thank you, Mr. Chairman.
Mr. Chairman, I apologize to you and the Ranking Member. We
had a Judiciary hearing that occurred simultaneously with this
hearing, and that is why I am belated getting here.
Captain Sparks, this has nothing to do with today's
hearing, but a half century ago, there was a boatswain's mate
1st whose sir name was Sparks pushing booths through Cape May.
Any relation to you?
Captain Sparks. No, sir, I don't believe so.
Mr. Coble. He was a grisly boatswain's mate, but a very
competent one.
You mentioned the administrative clemency program, Captain.
What would be the average duration, if I had my license revoked
and I applied through the administrative clemency process, when
would that likely be restored?
Captain Sparks. I think it is a number of years.
Mr. Coble. A long time?
Captain Sparks. It is a fairly long time.
Mr. Coble. Well, as the Chairman pointed out, I don't think
we need to play loosely with people's livelihoods. That is very
crucial. But at the same time, I don't think we need to be
lucid and reckless with safety and security.
Captain Sparks. Exactly.
Mr. Coble. And compromising safety and security, on the one
hand, as opposed to retaining a license, that has to be weighed
very equitably I think and very fairly.
Admiral, or, Captain Sparks, either of you, if you will, I
am told there has been a lot of talk at the hearing regarding
due process in the ALJ system with the Coast Guard. How about
briefly walking me through the appeals process that is
available to both parties, that is the mariners or the accused
and the Coast Guard? How extensive is this process? And how far
up the chain of command within the Coast Guard does it advance?
And what opportunities are available outside or beyond the
Coast Guard ALJ system?
Captain Sparks. Sir, let me tell you what I know, and then
if you need more information, if you give us an opportunity, we
will get back to you with more details. But there are a couple
other avenues even before you talk about appeals.
Administrative clemency is one of them. And I was just provided
with the exact answer to your question. For a drug offense, it
is a minimum of 3 years. For a nondrug offense, it is 1 year
minimum for the administrative clemency process. If we are
talking about a suspension as opposed to a revocation, there is
an opportunity for a mariner to receive a temporary license. My
understanding is that is a fairly liberally granted procedure
by the Administrative Law Judge.
Now, when you talk about appeals per se, there is a right
of appeal to a Commandant. And that appeal can be based on
whether a finding of fact is supported by substantial evidence,
whether each conclusion of law accords with applicable law
precedent and public policy, whether the Administrative Law
Judge abused his or her discretion. Or if we are talking about
a case where there had been a motion to disqualify an ALJ that
was denied by him or her, that can be a basis, the failure to
grant a motion to disqualify. That appeal goes to a Commandant.
If a Commandant rules against the respondent, then the
respondent has a further avenue of appeal outside of the Coast
Guard to the NTSB. And I think the grounds are the same or
roughly the same. And, again, if a mariner fails to get relief
with NTSB, that mariner can go to the judicial circuit court
which has jurisdiction.
Mr. Coble. Admiral, will you add anything to that?
Admiral Salerno. No, sir. I think Captain Sparks laid it
out quite adequately.
Mr. Coble. I have no further questions Mr. Chairman.
Mr. Cummings. Thank you, Mr. Coble. Again, we want to thank
you all for being here. I know it has been a long morning and
afternoon. We will be getting back to you with a few other
questions. I realize that there are some questions that you all
probably are not even in a position to answer. But there is one
I must ask. If a Coast Guard unit has a concern about a
particular judge, should they go to the staff of the chief ALJ
or the Merit System Protection Board. Captain Sparks.
Captain Sparks. I don't believe--and we can get back to you
with a definitive answer--there is a prescribed method to
communicate or voice a concern about an Administrative Law
Judge other than appealing his or her decision after the fact.
That said, the Chief Administrative Law Judge does have a duty
to investigate allegations that come to his or her attention
regarding misconduct. And if the chief then decides that these
allegations are founded or serious enough, then the chief can
kick the case over to the MSPB. That is about the best I can
answer your question, sir.
Mr. Cummings. All right. Thank you all very much.
And, again, we will try to follow up on Mr. LaTourette's
request to get at least the three people that he mentioned
before us as soon as possible. And so, anyway, we thank all of
you for being here. And this closes the hearing.
[Whereupon, at 2:00 p.m., the Subcommittee was adjourned.]
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