Coast Guard's Administrative Law Functions Scrutinized by Subcommittee
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The House Coast Guard and Maritime Transportation Subcommittee hearing, which was convened on Tuesday to examine the Coast Guard's administrative law system, did not yield substantial proof of widespread bias against mariners. Testimony was taken from a wide range of witnesses, including three former Coast Guard Administrative Law Judges (ALJs). But the discussion did not let the Coast Guard completely off the hook, either. One key proposal seemed logical and received wide support from those in attendance. After the hearing, Congressman Elijah Cummings (D-MD) said, “The fairness of proceedings is best guaranteed if administrative law judges are completely separate from Coast Guard prosecutors.”
In late June, a Baltimore Sun investigative piece depicted wholesale bias against mariners and violations by Coast Guard Administrative Law Judges, citing approximately 6,300 cases in which the Coast Guard enjoyed almost unchallenged success. Subsequent to the article’s release, Coast Guard headquarters public affairs officers released data to refute those statistics and their use within the article. Coast Guard spokesman CDR Brendan McPherson told MarEx, “There were only 152 cases that were fully adjudicated before an ALJ (not 6,300 as reported by The Sun). About 14 of these were decided in favor of the respondent, which is consistent with other federal court proceedings.”
The Subcommittee heard testimony about the Coast Guard's administrative law system from two former Administrative Law Judges, both of whom maintain that during their tenure they worked in an atmosphere where intimidation existed and judicial independence, in the consideration of cases, was hampered by the lead ALJ. But another retired Coast Guard ALJ, Peter Fitzpatrick, disputed those allegations. Fitzpatrick went as far as to paint the investigative article, which was likely the primary catalyst for Tuesday’s hearing, as “Yellow Journalism.” Fitzpatrick continued, “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.” He went on to say that, while settlements in some cases were common, they were not by themselves unfair.
Tuesday’s hearing generally confirmed that the data, presented in a superficial manner within The Baltimore Sun article, did not support the case that the Coast Guard ALJs had engaged in widespread bias against mariners facing serious charges. Congressman Steven LaTourette (R-OH) went as far as to say that the data cited did not seem to support the story and that, “I have real questions as to how the article was generated.” Still, the testimony of the other two ALJs, Jeffie Massey and Rosemary Denson, raised serious questions of improprieties within the Coast Guard’s ALJ system.
Both Massey and Denson described an atmosphere where the Chief Administrative Law Judge exerted pressure to rule for the Coast Guard and gave examples of where that had happened. The subcommittee vowed to investigate the charges further and to pursue the separation of the ALJs and their proceedings from the Coast Guard itself. In the end, all three former ALJs were asked if they felt that the system was “fixed” against the mariners and, if at any time, any of them were not fair to the mariners whose cases they presided over. The three were adamant that they had presided fairly but Massey also asserted that, “I was fair, but I paid a price for it.”
Mr. William Hewig, an attorney who represents mariners before the Coast Guard's administrative law system, also gave testimony and proposed three measures that would help to reform the system and return some measure of trust from the mariners who face charges in the future. Hewig urged reforms similar to that used at the FAA, including:
• Separation of the Administrative Law Judges from the U.S. Coast Guard;
• The granting of limited discovery to mariners facing charges in the ALJ system; and
• Where outcomes are determined solely by the regulations, they should not be absolute and there needed to be a mechanism for rebuttal.
For their part, the Coast Guard attending officers testified that they felt that the system was indeed fair and that they would work to ensure that it remained that way. And, although Rear Admiral Brian Salerno, the Coast Guard's Assistant Commandant for Policy, said he was opposed to any effort to remove the Administrative Law Judges from the agency, it was clearly the minority opinion on Tuesday. In fact, if Tuesday’s hearing was any barometer on the matter, the removal of the ALJs from the Coast Guard’s supervision appears to be the most likely outcome of the ongoing investigations.
Tuesday’s hearing exposed allegations of specific cases of prosecutorial improprieties which were echoed by MarEx sources, outside of the hearing. At a minimum, the perception of a cozy relationship between the Coast Guard and the Administrative Law Judges was, in part, substantiated and measures to ensure that the system remains fair to all that participate in it were brought forward. The hearing also served to show that, while problems clearly existed within the system, the case data did not support the theory of widespread abuse, as previously alleged.
Tuesday’s meeting will be followed, on Thursday, with another hearing by the House Subcommittee on Coast Guard and Maritime Transportation. The latter meeting deals with “Challenges Facing the Coast Guard's Marine Safety Program,” another Coast Guard area of responsibility, which has also come under intense scrutiny and pointed criticism. Coast Guard Commandant ADM Thad Allen is expected to testify at that hearing. Without a doubt, the ALJ and Marine Safety issues have combined with the ongoing Congressional spotlight on the Deepwater program failures to keep the pressure ramped up on the embattled Coast Guard to speed up reforms and improve the image of the nation’s fifth uniformed branch.
