Investigating the USCG’s Administrative Law Judge System

By Randy O’Neill, from the November 2010 edition of MarineNews

“One man’s justice is another’s injustice; one man’s beauty another’s ugliness; one man’s wisdom another’s folly.”
Ralph Waldo Emerson
Essays: Circles

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.

A Little Background
Among other allegations, the crux of Judge Massey’s concerns was her belief that she was being “forced” to rule in favor of the Coast Guard in Suspension & Revocation (S&R) cases argued before her. She further believed that the line between the prosecutors (USCG) and the presiding judges (ALJs) in S&R cases was becoming increasingly blurred. In short, she believed she was being constrained from doing her job, much to the detriment of the mariners whose cases she was presiding over. Judge Massey attempted to address her concerns through normal ALJ channels and, believing she was being ignored at best and forced out at worst, went public with her concerns.
As a consequence of her decision, which resulted in a major expose in the Baltimore Sun newspaper, in September 2008, the USCG requested that the Department of Homeland Security’s Office of Inspector General assess the validity of the former District 8 ALJ’s allegations of bias and misconduct in the USCG’s ALJ program, particularly in connection with the adjudication of cases involving the suspension and revocation of Merchant Marine credentials.

Four months later, in January 2009, the Inspector General’s office initiated a review of several of Judge Massie’s allegations including an investigation to determine whether the Chief ALJ’s senior staff engaged in an improper ex parte meeting (one in which only one party of a dispute or legal proceeding is represented) with USCG attorneys and investigating officers relative to an open case before Judge Massey. In its recently released report, the Inspector General’s office gave Judge Massey’s account of several meetings involving USCG Investigating Officers (IOs) who served as prosecutors in Judge Massey’s cases and representatives of the ALJ legal staff and representatives of the Commandant’s office who would be drafting appeal decisions. No one disputed that Judge Massey’s cases were discussed at these meetings, but the Inspector General found that those meetings/conversations were technically not ex parte because: the staff attorney was not “involved in any pending cases; and because the contacts were not made with the knowledge of the Chief ALJ.”The Inspector General did acknowledge, however, that the meetings … left ALJ Massey with the impression that the Coast Guard was dissatisfied with her rulings and was, as a result, trying to get the Chief ALJ to discipline her and thereby force her to rule in the Coast Guard’s favor.”

Whether or not this conclusion adequately addresses Judge Massey’s serious ex parte concerns, there seems little doubt that those meetings/discussions appear to have violated the regulation [33 CFRS.20.206(a)&(b)] which precludes the USCG from attempting to supervise or direct the decision of an ALJ.

In the Eyes of the Beholder
In its Misconduct Report, the Inspector General repeatedly chose to give more credence to the many unsworn statements of USCG officials rather than the sworn affidavit of Judge Massey. In one such instance, the Chief ALJ admittedly told Judge Massey that “she was the problem in District 8.” While, not surprisingly, Judge Massey interpreted that statement and similar ones in that vein to be his reaction to complaints by USCG Investigating Officers that, among other things, she was making them conduct discovery on cases before her that they didn’t believe warranted, she interpreted the Chief ALJ’s comment as a directive to rule in the Coast Guard’s favor. The Chief ALJ countered her interpretation of pressure being implied by stating that his intention was to convey to Judge Massey that she should “follow Coast Guard laws and regulations.” He further asserted that “the Coast Guard’s regulations only provide for limited discovery and that the need for discovery must be balanced by the need for speed and efficiency in hearings, while Judge Massey remained firm in her belief that broad pre-hearing discovery was a permissible tool to aid judicial economy.”

The problem is that the Coast Guard’s discovery regulations could be easily read to support Judge Massey’s differing interpretation.

Corrective Actions Proposed
While the purpose of this column is not the appropriate forum to dissect the lengthy Misconduct Report despite the troubling conflicts and potential fairness issues it raises, the accompanying 34-page document that was simultaneously released by the Inspector General’s Office appears to acknowledge that the current ALJ system needs some fine tuning if merchant mariners facing career-threatening suspension and revocation proceedings are to get a fair and balanced day in court.

In the preface to Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters, (OIG-10-107) dated August 10, 2010, the Department of Homeland Security’s Inspector General, Richard L. Skinner, states “this report addresses certain issues related to the Coast Guard’s system for adjudicating suspension and revocation matters ... the recommendations herein have been developed to the best knowledge available to our office, and have been discussed in draft with those responsible for implementation ... we trust this report will result in more effective, efficient and economical operations.”

Among the sections of the report listed on its Table of Contents that address “certain issues” include:
•    The ALJ Program Needs to Review and Update Certain Policies and Procedures
•    The S&R Program Needs to Improve Training and Provide Consistent and Effective Legal Support to Investigating Officers
•    The Coast Guard Needs to Issue Commandant Decisions on Appeal in a Timely Manner and Make Decisions More Accessible to the Public
•    The Coast Guard Needs to Develop Formal Protocol to Prevent Improper Contacts Among Personnel in the ALJ Program, the Office of Maritime and International Law; and the Officer of Investigations & Analysis

A Somewhat Pyrrhic Victory
While Judge Massey’s specific charges of past wrongdoing did not convince the Inspector General to take any action against those involved, her willingness to speak out at the cost of her ALJ career does not appear to be completely in vain. If indeed actions are taken in response to the Inspector General’s key recommendations, mariners facing S&R proceeding can feel more confident that their future cases will be adjudicated in a fair and impartial forum.

For full copies of both the Misconduct Report and the Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters, please call the Office of Inspector General/(OIG) at (202) 254-4100, fax your request to (202) 254-4305 or visit the OIG website (www.dhs.gov/oig).