Administrative Law Judge News

This article examines 10 structural safeguards in Coast Guard Suspension and Revocation (S&R) Proceedings that ensure Coast Guard Administrative Law Judge (ALJ) decisional independence. These safeguards separate potential agency influences from the ALJ decision making process and are critical to mariner due process and fundamental fairness. We will start with an overview of Coast Guard S&R proceedings, followed by brief discussions of the Administrative Procedure Act, Administrative Law Judges, and U.S. Office of Personnel Management oversight.

In May, the U.S. Coast Guard will start a strengthened and pointedly direct anti-SASH campaign that will extend across the maritime industry. SASH is an acronym for sexual assault/sexual harassment, and this new effort adds muscle to Marine Safety Information Bulletin (MSIB Number: 1-23) "Reporting Sexual Misconduct on U.S. Vessels" released in February. The new bulletin supersedes a previous one from late 2021.USCG personnel will be very deliberate in making sure that all maritime operators are aware of MSIB 1-23. The core message: report all sexual misconduct and harassment.

Chairman Daniel B. Maffei announced today the hiring of Linda S. Harris Crovella to serve as an Administrative Law Judge of the Federal Maritime Commission.Judge Crovella joins the Commission after serving as an Administrative Law Judge with the Social Security Administration in Richmond, Va. and Buffalo, N.Y. for the past six years. Prior to joining the Social Security Administration, she worked at the National Labor Relations Board as a Field Attorney, investigating and litigating unfair labor practice charges…

The Federal Maritime Commission approved a settlement agreement reached between its Bureau of Enforcement (BoE) and Hapag-Lloyd AG (Hapag-Lloyd) where the ocean carrier will pay a $2 million civil penalty to address alleged violations related to their detention and demurrage practices.“To restore full confidence in our ocean freight system, vigorous enforcement of FMC rules is necessary. Specifically, we must ensure powerful ocean carriers obey the Shipping Act when dealing with American importers and exporters.

Radar confusion and speed cited in ferry groundingWhile the perennial issue of commercial vessel and recreational boat collisions, near misses and allisions with navigational aids are certainly nothing new, in much of  the navigable waters of the United States they are typically associated with the warmer weather of late spring, summer and early fall when privately-owned boats abound on the nation’s lakes, rivers, bays and sounds.But even after the cabin cruisers, sailboats, jet skis…

Choosing the year’s ‘top stories’ is always a difficult task. Many compelling story threads played out, each dramatically impacting the North American waterfront, and in particular, the workboat sector – each in their own unique way.The Infrastructure Battle ContinuesThe EXECUTIVE SUMMARY H.R. 2396, the “Full Utilization of the Harbor Maintenance Trust Fund Act”, will ensure that the Harbor Maintenance Trust Fund is used for its intended purpose – maintaining Federally-authorized harbors. The legislation would allow the U.S. Army Corps of Engineers (Corps) to dredge all Federal harbors to their constructed widths and depths. Unfortunately, Washington continues in chaos with another continuing resolution on the budget; the next one expires on December 20th.

The U.S. Coast Guard’s 2018 Domestic Annual Report on Flag State Control.The U.S. Coast Guard’s 2018 Domestic Annual Report contains statistics regarding inspections and enforcement of regulations on U.S. flagged vessels. The report includes deficiency and detention rates for each type of inspected vessel, as well as performance metrics for Recognized Organizations that perform work on the Coast Guard’s behalf. The data contained in this report was compiled by the Office of Commercial Vessel Compliance (CG-CVC) using information from the Coast Guard’s Marine Information Safety and Law Enforcement (MISLE) database system.For the first time, the coast Guard is presenting information reflecting the entire U.S.

Even as the minimum Random Drug Testing Rate is raised to 50 PCT, the Coast Guard wants its mission to consist of 90% outreach and just 10% enforcement. Really.The domestic waterfront got some less-than-happy news when the U.S. Coast Guard announced that the calendar year 2019 minimum random drug testing rate had been set at 50 percent of covered crewmembers. It’s safe to say that nobody is happy about it, much less the Coast Guard itself.In truth, the Coast Guard had little to say about the matter. 46 CFR part 16.230(f)(2) requires the Commandant to set the minimum random drug testing rate at 50 percent when the positivity rate for drug use is greater than one percent.

A generally sound assumption to make is that many recreational boaters operating power boats and sailing vessels are not very familiar with the maritime Rules of the Road that their professional mariner counterparts understand and adhere to. The unfortunate consequence is a wide array of marine casualties and incidents from collisions, allisions, capsizings, groundings, wake damage, many unreported and countless near misses. Another safe assumption is that it’s almost certain that when a professional mariner gets involved with a recreational boater, the authorities, most notably the U.S.

For the second time in ten weeks, the National Labor Relations Board (NLRB) has affirmed the decision of an administrative law judge that the International Longshore and Warehouse Union (ILWU International) and ILWU Local 8 (Local 8) violated federal labor law by engaging in coercive activity directed against ICTSI Oregon, Inc. at Terminal 6 at the Port of Portland. The NLRB concluded that, between September 2012 and June 2013, ILWU members worked in a deliberately slow manner and otherwise interfered with productivity at Terminal 6 and that the ILWU International and Local 8 were responsible for this illegal conduct. According to Elvis Ganda, President and CEO of ICTSI Oregon, “The importance of this ruling should not be underestimated.

Last September, an Administrative Law Judge (ALJ) unsettled much of the U.S. maritime industry when he dismissed with prejudice a U.S. Coast Guard (USCG) action to revoke a Merchant Mariner’s Credential (MMC) despite his finding that the mariner’s urine had tested positive for cocaine. The case is referred to as USCG v. Hopper, SR-2014-14. American Maritime Safety, Inc. (AMS) considered the Hopper outcome to be a bad decision, both because it imposes harsh evidentiary consequences…

A settlement between the U.S. Coast Guard (USCG) and the operator of the tug Shannon was approved Tuesday by a U.S. Federal Administrative Law Judge. The settlement calls for a two month suspension of Merchant Mariner’s Credentials, mandatory attendance at a Washington State accepted anger management class and a 24-month probationary period after the operator of the Shannon was found by the USCG to have directly endangered the crew and passengers aboard multiple state ferries by intentionally hindering safe transits during rush hour traffic in Elliot Bay near Seattle, October 7, 2014. The tug operator stated that impeding the other vessels was an act of civil disobedience in protest of an on the water obstruction to the tug Shannon’s attempt to moor.

We recently came across a very interesting report issued to Congress by the United States Coast Guard. The May 2012 study might seem dated, but that’s hardly the case. Actually, it’s a telling description of what can go wrong, why and perhaps, a blueprint for how to go forward and fix things. That’s our take, in any event. The Report chronicles oil spills from all vessel types, including the towing industry, tank ships, the offshore industry, freighters, and fishing vessels. Section…

In past columns, the focus of our discussions has been primarily on maritime incidents such as collisions, allisions and groundings in which U.S. Coast Guard-licensed deck and engineering officers were subject to marine investigations and negligence changes, potentially leading to the dreaded “letter of complaint” against your U.S. Coast Guard issued credential(s) or endorsement(s). This month, we examine a grounding case in which indeed a 46 CFR 5.29 negligence complaint filing was made against the involved master requiring a vigorous license defense. What made this case different than most was the fact that because the charged master was serving as a pilot (independent contractor) at the time of the incident…

A Federal Energy Regulatory Commission judge annulled committed shipper rates on the Cushing-to-Texas Seaway pipeline on Friday, despite objections from energy companies who say it could jeopardize billions in infrastructure investment. The case arose from motions filed by oil companies against uncommitted shipper rates on the 400,000 barrels-per-day pipeline, which gives U.S. Gulf Coast refiners access to Canadian heavy crude and American oil. The federal regulator had struck the judge's initial decision in March and remanded it to her review, saying her arguments misconstrued long-held commission policy. The commission honors so-called committed shipper rates, which midstream companies enter with long-term shippers in order to finance their costly projects.

U.S. Coast Guard Sector Hampton Roads investigators received confirmation last month that Administrative Law Judge Michael Devine agreed with the Coast Guard's arguments in a case against a local dive boat operator, resulting in the suspension of a dive boat operator's mariner credentials. The case stemmed from a recreational diving casualty that occurred June 9, 2012, aboard the Miss Lindsey, a 48-foot commercial diving vessel, near Virginia Beach. The diving casualty claimed the life of Kevin Kraemer, 55. Kraemer drowned while diving with a group of recreational divers off the inspected vessel Miss Lindsey. An investigation conducted by the Coast Guard determined administrative action would be taken against the master of the vessel…

Judge Walter J. Brudzinski has been selected for the position of Chief, Administrative Law Judge, U.S. Coast Guard. In this capacity, Chief Judge Brudzinski will provide supervision and administration of the Coast Guard Administrative Law Judge program. Judge Brudzinski has more than 16 years of experience as an Administrative Law Judge and has been with the U.S. Coast Guard since 2003. Prior to his initial Administrative Law Judge appointment in 1996 with the Social Security Administration…

When a vessel-related accident occurs on the navigable waters of the United States, the investigation machinery starts up almost immediately. The operator, owner, or person in charge of a vessel involved in such a casualty is obliged to give the soonest practicable notification, often followed by a written report, to the local Coast Guard Sector or office. This begins a process in which livelihoods, liberty, and civil liability might all be at stake. Careful thought is required when the Coast Guard investigating officer calls to request an interview.

On September 14, 2010, the Department of Homeland Security Office of the Inspector General posted its much anticipated report addressing the very serious allegations of misconduct made against the U.S. Coast Guard’s Administrative Law Judge (ALJ) system by former ALJ Jeffie J. Massey. In short, the Inspector General’s office concluded that it “was not able to substantiate” Judge Massey’s allegations against her former superior, Chief ALJ Joseph N. Ingolia, and numerous members of his staff, members of the ALJ Docketing staff, members of the Coast Guard Commandant’s staff and several USCG Investigating Officers who were involved in cases then pending before Judge Massey.

The Federal Maritime Commission (FMC) administrative law judge (ALJ) hearing the complaint brought by the Government of Guam against a liner company for allegedly charging rates that were unreasonable under the applicable law dismissed the complaint. The ALJ determined that complainant failed to demonstrate a causal link between the excess revenues earned by the liner company and the rates charged for any shipments in issue. (Source: HK Law)

The Department of Homeland Security issued the TWIC Dashboard to provide point-in-time program information on enrollment and adjudication statistics and other relevant information relating to the Transportation Worker Identification Credential (TWIC) program. As of February 27, a total of 190,447 individuals had pre-enrolled and 120,148 individuals had completed the enrollment process. A total of 45,309 TWIC cards have been printed and, of these, 24,173 have been activated. Initial disqualification letters were issued to 2,033 individuals. Appeals were requested in 952 cases, of which 705 were granted. Waivers were requested in 61 cases, of which 8 were granted. No hearings have been requested before an Administrative Law Judge (ALJ).

The U.S. Government Accountability Office released a report Friday detailing its findings following a review of the Coast Guard's Administrative Law Judge Program that was requested by Congress and welcomed by the Coast Guard. The GAO conducted an independent and objective review of 1,675 suspension and revocation cases opened and closed by the Coast Guard from Nov. 10, 2005, through Sept. 30, 2008. •    Sixty two percent of suspension and revocation cases are disposed through settlement agreements between the Coast Guard and mariners. Click here to view or download a chart showing the disposition of all cases reviewed by the GAO. •    Roughly three percent, or just 45 cases, were disposed through a hearing before an Administrative Law Judge.

The Federal Maritime Commission (FMC) issued an order by the Administrative Law Judge (ALJ) certifying to the Commission a motion of the Bureau of Enforcement to dismiss the proceeding against the Ports of Los Angeles and Long Beach for possible violation of the Shipping Act of 1984. Docket No. 08-05 (7/30/09). (Source: Bryant’s Maritime News)