|Jeffie J. Massey, a retired administrative law judge, testifying before a U.S. House of Representatives subcommittee that the Coast Guard pressures judges to rule in its favor. (Baltimore Sun/Jed Kirschbaum)|
For years mariners have suspected that, when they must face justice in the U.S. Coast Guard administrative law system, the deck is stacked against them.
Now influential members of Congress are starting to agree â€” and they are proposing sweeping reforms.
In July, leaders of one congressional committee proposed taking responsibility for maritime administrative law judges away from the Coast Guard. The move was a response to allegations that an accused mariner is given almost no chance of prevailing when a case is brought before such judges, who are Coast Guard employees.
The administrative law judges, or ALJs, preside over what is in effect the trial court for mariners facing charges brought by the Coast Guard of misconduct, negligence or failing a drug test. The system handles hundreds of cases every year.
The judges once had a reputation for being impartial. Over the past seven or eight years, however, there has been “an apparent bias on the part of some” judges to favor the Coast Guard’s case, said William Hewig, a Boston attorney who represents members of the International Organization of Masters, Mates and Pilots.
“There was a general feeling that the Coast Guard ALJs were hometown umpires, so to speak,” Hewig told Professional Mariner. “The way it affects mariners is that it makes it extremely difficult to get a just result.”
In July, the House Subcommittee on the Coast Guard and Maritime Transportation held hearings to examine the administrative law system. While the panel heard testimony from Coast Guard officials who defended the system, also appearing was one former ALJ who claimed that the judges are directly instructed to rule in favor of the Coast Guard.
If it’s true that the judges were ordered or pressured to rule a certain way, that would be a violation of the fundamental legal principles guaranteeing impartial hearings and due process, an administrative law expert from a Maryland law school told the congressional panel.
The subcommittee’s Democratic chairman, Rep. Elijah Cummings of Maryland, said the testimony was “deeply troubling and, if true, would suggest that the scales of the Coast Guard’s administrative law system are not evenly balanced.” Cummings didn’t wait for further proof; he immediately proposed a new structure to promote judicial independence.
“Any administrative law system must not only ensure that there is no impropriety in the conduct of administrative proceedings but that there is not even the appearance of unfairness in the system,” Cummings said. “I believe that the best way to ensure that the administrative law system that considers whether to suspend or revoke a mariner’s credential is truly balanced is to separate that system from the Coast Guard.”
The hearings came five weeks after a report in the Baltimore Sun newspaper stated that mariners have almost no chance of winning cases before the Coast Guard’s administrative law judges. The administrative law system is headquartered in Baltimore, and Cummings represents that city in Congress.
The newspaper analyzed the dispositions of more then 6,300 charges since 1999 and determined that the mariner prevailed in only 14 of those cases. Including dismissals, the Coast Guard wins or agrees to a settlement 97 percent of the time.
That success rate dwarfs the percentages of cases won in the administrative law systems of other federal agencies, the newspaper reported. For example, the Social Security Administration prevails 43 percent of the time before its own ALJs.
The findings didn’t surprise the Gulf Coast Mariners Association, which had been monitoring the Coast Guard’s administrative law system for at least three years in response to member complaints. Capt. Richard A. Block, secretary of the Houma, La.-based association, observed several ALJ proceedings in Louisiana. Block said the system is a “real dark path to go down” for an accused mariner.
“We found a number of cases where (the judges) were extremely unfair to the mariners,” Block said. “The system stinks. The judge will listen to you, and the judge will explain your rights, and the judge may be very nice to you, but when all is said and done, chances are you’re going to lose your license.”
Shortly after the newspaper article was published, the Coast Guard disputed the statistics and said its administrative courts are bound by fairness and impartiality.
Rear Adm. Mary Landry, the Coast Guard’s director of governmental and public affairs, said more than half of those 6,300 cases were positive drug tests or alcohol convictions. Most of the remaining charges involved mariners refusing to submit to drug tests or making false statements in applications for credentials.
“While all mariners are entitled to due process, federal law appropriately allows little discretion for activities in any mode of transportation that may endanger public safety,” Landry said. “Nevertheless, the process is remedial, not criminal. The vast majority of mariners charged with drug and alcohol offenses take advantage of rehabilitation programs we have established. As a result, few cases are contested and fully adjudicated by administrative law judges.”
Landry said many of the cases the Sun counted as Coast Guard victories hadn’t even been assigned to an administrative law judge yet. About 2,800 of the charges were voluntarily settled before they were assigned to an ALJ.
Whatever the victory tally, many mariners and their attorneys feel that they have no chance of winning when facing an administrative law judge. Former ALJs testified that the judges sometimes act like pawns of the Coast Guard officers, and enforcement staff informally discusses cases with judges outside of the court.
The hearings often take place in Coast Guard facilities, where judges have a tendency to get chummy with Coast Guard staff. One ex-ALJ said she even received memos and verbal instructions from a supervisor to rule in favor of the Coast Guard.
Also testifying to the House panel was Hewig, who provided two examples of clients he said were victims of the unfair treatment. One mariner with no history of drug use was charged with misconduct after his negative drug screen showed a low creatine level, hinting to the judge that the mariner had substituted someone else’s urine.
Instead of accepting evidence that the abnormality instead was caused by a prescription drug, the judge allegedly favored the testimony of a Coast Guard expert. The judge earlier had even agreed with Hewig that the expert, a psychologist, was not qualified to give a medical opinion in this matter.
Hewig’s second example, also a misconduct case, involved his unsuccessful attempt to explore whether the statute of limitations had run out on an accusation against a licensed officer. Hewig asked the judge to permit him “discovery,” the legal term referring to a series of depositions and document requests.
Although Coast Guard rules permit discovery, the judge didn’t allow it, explaining that discovery “turns my cases into a circus,” according to Hewig’s testimony.
Hewig and Block suggest that the administrative law system be transferred to the National Transportation Safety Board.
“You have to take it away from the Coast Guard and give it to some impartial agency,” Block said. “I think the NTSB will have the impartiality.”
Coast Guard officials at the House hearing said it may be best to keep the ALJs where they are.
“Our view is that there is a great deal of value in maintaining the administrative law judge program with the Coast Guard,” said Rear Adm. Brian Salerno, assistant commandant for policy and planning. “This allows the judges to become very acquainted with all 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.”
Hewig says that’s not a good enough reason.
“The Coast Guard’s only real defense against having its ALJ function transferred to the NTSB was that the Coast Guard thinks it’s important for the judges who handle Coast Guard cases to understand the Coast Guard’s procedures and mission,” Hewig said. “In my opinion, that argument is almost worthless. The issue before administrative law judges in Coast Guard cases are: Did a mariner commit negligence? Did a mariner commit misconduct? Did a mariner fail a drug test? In all of these kinds of cases, it’s irrelevant what the Coast Guard’s mission is â€” and, by the way, everybody knows that anyhow.”
Cummings has said he intends to introduce his administrative law reforms in the next Coast Guard authorization bill, due for consideration in spring 2008. Cummings’ Republican counterpart on the subcommittee, Rep. Steven LaTourette, of Ohio, supports the idea of removing the ALJs from the Coast Guard, although LaTourette said the existing system may not be inherently biased against mariners.