Department of Homeland Security 

Office of Inspector General 

Allegations of Misconduct within the Coast Guard 


Administrative Law Judge Program 


(Redacted)
 

Notice: The Department of Homeland Security, Office of Inspector General has redacted the report for public 

release. A review under the Federal of Information Act will be conducted upon request. 

OIG-10-108 August 2010 
Office ofInspector General 

U.S. Department of Homeland Security 

Washington, DC 20528 

"~'

~.(~h'I) s!5 

Homeland 

Security

AUG 2 5 2010 

Preface 

The Department of Homeland Security (DHS) Office of Inspector General (OIG) was 

established by the Homeland Security Act of2002 (Public Law 107-296) by amendment 

to the Inspector General Act of1978. This is one of a series of audit, inspection, and 

special reports prepared as part of our oversight responsibilities to promote economy, 

efficiency, and effectiveness within the department. 

This report addresses certain allegations made against the United States Coast Guard's 

Administrative Law Judge program, including but not limited to allegations that the 

program is biased in favor ofthe Coast Guard and that the Chief Administrative Law 

Judge either controls or attempts to control the outcome of cases decided by his 

subordinate judges. It is based on interviews with employees and officials of relevant 

agencies and institutions, direct observations, and a review of applicable documents. 

We trust this report will result in more effective, efficient, and economical operations. 

We express our appreciation to all ofthose who contributed to the preparation of this 

report. 

~~~ Richard L. Skinner 

Inspector General 
Table of Contents 

Executive Summary.............................................................................................................1 

Background..........................................................................................................................2 

History and Formation of the Coast Guard’s Administrative Law Judge Program.......2 

Organization of the Program..........................................................................................3 

ALJ Massey’s Allegations .............................................................................................5 

Results of Review ................................................................................................................6 

We Could Not Substantiate ALJ Massey’s Allegations ...............................................7 

The Chief ALJ Instructed ALJ Massey to Follow Regulations...................................22 

ALJ Massey’s Conduct Undermined the Gravity of the Allegations .........................28 

Appendices 

Appendix A: Purpose, Scope, and Methodology.......................................................34 

Appendix B: Management Comments to the Draft Report.......................................36 

Appendix C: Chronology of Relevant Events...........................................................37 

Appendix D: 

Appendix E: Major Contributors to this Report........................................................52 

Appendix F: Report Distribution ..............................................................................53 

Abbreviations 

ABA American Bar Association 

ALJ Administrative Law Judge 

ALJIPP(s) Administrative Law Judge Internal Procedure(s) and Practice(s) 

APA Administrative Procedure Act 

CDOA(s) Commandant Decision(s) on Appeal 

DEA Drug Enforcement Agency 

DHS Department of Homeland Security 

FERC Federal Energy Regulatory Commission 

FOUO For Official Use Only 

LMI Office of Maritime and International Law 

MSPB Merit Systems Protection Board 

MSU Marine Safety Unit 

NOAA National Oceanic and Atmospheric Administration 

NTSB National Transportation Safety Board 

OIG Office of Inspector General 

OPM Office of Personnel Management 

S&R Suspension & Revocation 
Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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OIG
 Department of Homeland Security 

Office of Inspector General 

Executive Summary 

On May 9, 2007, a retired United States Coast Guard (USCG) 

Administrative Law Judge (ALJ), Jeffie J. Massey, filed an 

affidavit in support of the plaintiff in Dresser vs. Ingolia et al., 

Civil Action No. 07-1497 (Eastern District, Louisiana). In her 

affidavit, and when later testifying before Congress, ALJ Massey 

made several allegations of bias within the Coast Guard’s ALJ 

program. ALJ Massey said that the Chief ALJ, Joseph N. Ingolia, 

specifically told her to always rule in the Coast Guard’s favor. She 

also inferred from other alleged remarks made by him and another 

Coast Guard ALJ that the Chief ALJ had directed that ALJ to rule 

in favor of the Coast Guard. ALJ Massey also alleged that the 

Chief ALJ and others engaged in improper conversations regarding 

pending cases. 

The allegations have brought the integrity of the entire ALJ 

program into question. Congress introduced legislation to transfer 

suspension and revocation hearings to the National Transportation 

Safety Board, and respondents appearing before the Coast Guard’s 

ALJs have questioned the independence of its ALJs. At the 

request of the Vice-Commandant for the Coast Guard, we initiated 

a review to determine the merits of ALJ Massey’s allegations. 

We were not able to substantiate ALJ Massey’s allegations. We 

did not determine that the Chief ALJ and others made the alleged 

remarks, or that the remarks, if made, meant that the Chief ALJ 

and others engaged in misconduct by directing subordinate ALJs to 

rule in favor of the Coast Guard. There is no evidence supporting 

ALJ Massey’s claim that the Chief ALJ held improper 

conversations with other ALJs about desired outcomes in specific 

cases or otherwise deprived mariners of due process in 

administrative proceedings. We did determine that the Chief ALJ 

instructed ALJ Massey to follow regulations because she was not 

following regulations. ALJ Massey’s conduct in disclosing the 

allegations also reinforced our conclusions and led us to doubt her 

claims. The Coast Guard declined to provide formal comments in 

response to our draft report. 
 

 

 

Background 

History and Formation of the Coast Guard’s Administrative Law 

Judge Program 

One of the primary duties of the Coast Guard is to enforce or assist in the 

enforcement of all federal laws applicable to high seas and waters subject 

to the jurisdiction of the United States. Another duty is to administer laws 

and promulgate and enforce regulations for the promotion of safety of life 

and property on the high seas and waters subject to the jurisdiction of the 

United States covering all matters not specifically delegated by law to 

some other executive department. 

The Administrative Procedure Act (APA) (5 U.S.C. § 551 et seq.), enacted 

in 1946 to create uniformity among the various federal agencies, created 

comprehensive statutes for rulemaking and administrative adjudications. 

With respect to adjudications, the APA requires that an impartial and 

independent fact finder, such as an ALJ, presides over certain hearings. 

To ensure parties receive fair hearings, the APA prohibits an ALJ from 

being “responsible to or subject to the supervision or direction of an 

employee. . . engaged in the performance of investigative or prosecuting 

functions for an agency.”1

 The APA prohibits “[a]n employee engaged in 

the performance of investigative or prosecuting functions for an agency in 

a case may not, in that or a factually related case, participate or advise in 

the decision, recommended decision, or agency review . . . .”2  

Typically, Coast Guard administrative proceedings focus on two 

regulatory schemes to maintain safety in maritime operations: (1) 

suspension and revocation (S&R) of merchant mariners’ credentials (46 

U.S.C. Chapter 77); and (2) assessment of class II civil penalties (CII) in 

accordance with provisions of the Federal Water Pollution Control Act (33 

U.S.C. § 1321(b)(6)) and the Comprehensive Environmental Response, 

Compensation, and Liability Act (42 U.S.C. § 9609(b)). The S&R 

regulations are intended to be straightforward and easy to understand so 

that neither the Coast Guard nor the respondent needs legal representation 

in order to successfully resolve the dispute. The S&R proceedings are also 

intended to achieve a remedial, not a punitive result, of maintaining the 

safety of waterways. They are not necessarily to discipline errant mariners. 

Historically, S&R and class II civil penalty hearings represent only a very 

small portion of the Coast Guard’s mission-related activities. 

1 5 U.S.C. § 554(d)(2) 2 5 U.S.C. § 554(d) 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Pursuant to the APA and Coast Guard regulations, the Chief ALJ assigns 

ALJs to preside over administrative proceedings. An ALJ must be an 

impartial finder of fact, free from the influence of the Coast Guard or any 

other person or entity when hearing and deciding Coast Guard cases. The 

respondent must be given notice of the charges against him or her and the 

opportunity to rebut those charges in a hearing before an impartial ALJ. 

When the administrative proceeding is concluded, the ALJ renders a 

decision that becomes the decision of the agency unless the decision is 

appealed to, or upon motion of, the agency. Either party may appeal the 

ALJ’s decision by filing a notice of appeal with the ALJ program within 

30 days after the issuance of the decision and subsequently filing an 

appellate brief with the Coast Guard’s Commandant within 60 days of the 

issuance of the decision. 

The Coast Guard’s Office of Maritime and International Law (LMI) 

handles the appeals of an ALJ’s initial decision to the Commandant. Its 

staff reviews the record of the proceedings and the appellate briefs and 

drafts the Commandant’s Decision on Appeal (CDOA) for review and 

signature by the Vice Commandant. The Vice Commandant signs 

CDOAs on the Commandant’s behalf. 

Even when an ALJ’s decision has not been appealed by the respondent, 

the Commandant can review it when there is a finding that the charge was 

proved. When the respondent disagrees with the Commandant’s decision, 

he or she may appeal the Commandant’s decision to the National 

Transportation Safety Board (NTSB). The respondent may appeal the 

NTSB’s decision to an appropriate federal court of appeal. 

ALJs have a unique status because they remain independent of their 

associated agency. Specifically, an ALJ’s income is not subject to the 

agency’s performance evaluation, and an ALJ is not subject to managerial 

controls by the agency. In addition to hearing Coast Guard administrative 

cases, Coast Guard ALJs preside over cases from the Department of 

Commerce’s Bureau of Industry and Security and the National Oceanic 

and Atmospheric Administration (NOAA). They are also responsible for 

administrative cases arising from the Department of Homeland Security’s 

(DHS) Transportation Security Administration. 

Organization of the Program 

The Coast Guard became a component of DHS in 2003. The Coast Guard 

Commandant reports directly to the Secretary of DHS. The Commandant 

leads the Coast Guard and is responsible for its policy and administration. 

However, the Commandant has delegated to the Vice Commandant the 
 

authority to take final agency action in S&R proceedings, except for 

petitions or appeals in a case where an ALJ ordered revocation of a 

merchant mariner’s credentials. 

The Commandant appoints the Chief ALJ. The Chief ALJ serves as the 

head of the ALJ program and is responsible for overseeing the ALJ 

program as well as hiring, supervising, and managing the ALJ program 

staff. Among other things, the Chief ALJ is responsible for the training of 

new ALJs assigned to conduct S&R hearings. 

Because ALJs are independent fact finders, they do not report to any 

particular individual or have a traditional chain of command. However, 

the Chief ALJ assigns ALJs to preside over particular administrative 

proceedings upon receipt of a complaint and has the authority to review 

ALJs’ decisions and orders. Coast Guard ALJs have all powers necessary 

to conduct fair, fast, and impartial hearings including the authority to: 

(1)	 administer oaths and affirmations; 

(2)	 issue subpoenas authorized by law; 

(3)	 rule on motions; 

(4)	 order discovery as provided for in 33 C.F.R. Part 20; 

(5)	 hold hearings or settlement conferences; 

(6)	 regulate the course of hearings; 

(7)	 call and question witnesses; 

(8)	 issue decisions; 

(9)	 exclude any person from a hearing or conference for disrespect, 

or disorderly or rebellious conduct; and 

(10) institute policy authorized by the Chief Judge.3 

The ALJ program is a small unit that typically employs less than 30 

people. Since its inception in 1948, the ALJ program has had three Chief 

ALJs. In 1991, the Coast Guard hired its current Chief ALJ, Joseph N. 

Ingolia. The Chief ALJ is the ALJ program’s chief executive. The Chief 

ALJ’s senior staff includes the Director of Judicial Administration, the 

Senior Attorney Advisor and the Attorney Advisor/Senior Law Clerk. 

The Chief ALJ delegates many of his administrative duties to his senior 

staff, giving them primary responsibility for the day-to-day management 

of the ALJ Program. As a result, the Chief ALJ’s senior staff is 

responsible for training the field ALJs, providing ALJs with legal 

assistance and advice, and managing the ALJ program’s more junior staff. 

Currently, the ALJ program operates ALJ field offices in Alameda, CA, 

Houston, TX, New Orleans, LA, New York, NY, and Seattle, WA. One 

3

 33 C.F.R. § 20.202 

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ALJ is assigned to Baltimore, MD. Each ALJ field office typically 

employs one ALJ and one paralegal specialist. 

The ALJ program’s docketing center in Baltimore, MD functions as the 

program’s headquarters. Created in 1997, the docketing center manages 

all filings associated with Coast Guard administrative proceedings by 

storing case files and records, maintaining a system for tracking and 

monitoring files, assisting parties in filing documents, and answering 

inquiries from the public. The docketing center has attorneys on staff who 

can assist ALJs with legal research or program rules of practice or policy. 

Although the docketing center does not provide formal training, it 

provides ALJs with an initial orientation and continuing legal education 

conferences. Since 1999, the docketing center has assigned uncontested 

cases to ALJs on a rotational basis. The docketing center generally 

assigns contested cases to the ALJ with responsibility for the geographic 

area where the Coast Guard filed the complaint. 

ALJ Massey’s Allegations 

On May 9, 2007, retired Administrative Law Judge (ALJ) Jeffie J. Massey 

filed an affidavit in support of the plaintiff in Dresser vs. Ingolia et al., 

Civil Action No. 07-1497 (Eastern District, Louisiana). In this case, 

Mr. Dresser alleged that the defendants, who at the time of the alleged 

events were employees in the Coast Guard ALJ program, violated his 

constitutional right to due process by trying to predetermine the outcome 

of proceedings with respect to his mariner’s credentials. In her affidavit, 

ALJ Massey made several allegations regarding the ALJ program. First, 

ALJ Massey alleged that at a lunch on December 7, 2004, ALJ Brudzinski 

remarked about one of his cases, “If I ruled that way, the Chief Judge 

would have my job” and that based on his statements, ALJ Brudzinski was 

not an independent fact finder and the Chief ALJ told him how to rule in 

the Dresser case. Second, ALJ Massey said that during an April 8, 2005, 

meeting with the Chief ALJ, the Chief ALJ specifically told her that she 

should always rule for the Coast Guard. ALJ Massey also alleged that the 

Chief ALJ and others engaged in improper conversations regarding 

pending cases. 

ALJ Massey did not disclose the alleged misconduct for nearly two years 

after the events occurred and just two weeks after she retired from the 

Coast Guard. ALJ Massey raised concerns of growing tension between 

her and Coast Guard investigating officers to the Chief ALJ and 

mentioned in an April 4, 2005, memorandum to the Chief ALJ that she felt 

she was being pressured to rule in favor of the Coast Guard. However, she 

first publicly reported her allegations to a mariner’s attorney who regularly 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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appeared before her while she was a Coast Guard ALJ. The attorney used 

her statements in a lawsuit against Coast Guard employees. 

The allegations have had serious repercussions for the ALJ program. 

Beginning on June 24, 2007, the Baltimore Sun published a series of 

articles about the ALJ program. In response, on July 31, 2007, the House 

Transportation and Infrastructure Committee’s Subcommittee on the Coast 

Guard and Maritime Transportation held a hearing to explore these 

allegations. ALJ Massey testified at the hearing along with 

representatives of the Coast Guard. Neither the Chief ALJ nor any other 

member of the ALJ program with first-hand knowledge of the facts 

underlying ALJ Massey’s allegations testified at the hearing. The 

subcommittee subsequently introduced legislation that, had it become law, 

would have transferred S&R proceedings and much of the ALJ program 

budget to the NTSB. As a result of these events, respondents scheduled to 

appear before Coast Guard ALJs have questioned the integrity of the ALJ 

program and its ALJs’ independence. 

Results of Review 

In October 2008, the Coast Guard requested that we investigate ALJ 

Massey’s allegations, which challenged the fundamental fairness of the 

Coast Guard’s ALJ program. In January 2009, we initiated a review to 

determine whether the Chief ALJ directed subordinate ALJs to rule in 

favor of the Coast Guard and discussed desired outcomes in specific cases 

with other ALJs and other employees. 

We were not able to substantiate ALJ Massey’s allegations. Although 

ALJ Massey referred to other events as evidence of wrongdoing by the 

Chief ALJ, her allegations hinged primarily on her interpretation of two 

alleged remarks made in her presence. We did not determine that the 

Chief ALJ and others made the alleged remarks, or that the remarks, if 

made, meant that the Chief ALJ and others engaged in misconduct by 

directing subordinate ALJs to rule in favor of the Coast Guard. There is 

no evidence supporting ALJ Massey’s claim except her own statements 

that the Chief ALJ held improper conversations with other ALJs about 

desired outcomes in specific cases. Given the protections afforded ALJs 

from improper adverse employment actions, as well as the construct of the 

Coast Guard ALJ program, neither the Chief ALJ nor the Commandant 

can remove a sitting ALJ without an MSPB proceeding. We did not 

identify any specific effect resulting from the Chief ALJ’s alleged 

pressuring of ALJs to rule for the Coast Guard. 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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We did determine that the Chief ALJ was justified in instructing ALJ 

Massey to follow regulations because she was not following regulations. 

ALJ Massey and the Coast Guard interpreted the APA’s guarantee of 

judicial independence differently, which caused a divide between ALJ 

Massey and the Coast Guard regarding the proper role of an ALJ in an 

S&R proceeding. Specifically, the Administrative Procedures Act 

safeguards an ALJ’s decisional independence, that is, the authority to 

determine the facts based on the record, and to apply the law to those 

facts. However, the APA does not grant an ALJ the authority to ignore an 

agency’s rules, regulations, policies, or interpretations of law. The 

Commandant issues statements of policy and interpretations of law via 

CDOAs, which are binding precedent that ALJs must follow. ALJ 

Massey repeatedly ruled in contravention of Coast Guard regulations and 

did not follow at least one CDOA. 

As a result, ALJ Massey’s brief employment at the Coast Guard was rife 

with conflict. We noted a pattern of growing tension and distrust between 

ALJ Massey and most of the Coast Guard employees with whom she 

interacted, including the Chief ALJ, several members of the ALJ program 

staff, and the Coast Guard’s investigating officers and attorneys. These 

factors likely contributed to ALJ Massey’s belief that the Chief ALJ and 

others were engaging in misconduct and pressuring her to rule against 

mariners. The circumstances surrounding the manner in which ALJ 

Massey disclosed the allegations also reinforced our conclusions and led 

us to doubt her claims. 

We Could Not Substantiate ALJ Massey’s Allegations 

ALJ Massey’s allegations hinge primarily on a few remarks allegedly 

made by ALJ Brudzinski during a December 7, 2004, lunch in New 

Orleans, LA, and by the Chief ALJ during an April 8, 2005 meeting at the 

docketing center in Baltimore, MD. Specifically, ALJ Massey alleges: (1) 

the Chief ALJ told her to rule in favor of the Coast Guard; (2) the Chief 

ALJ’s use of the phrase “one big happy family” meant that she needed to 

do her part to support the Coast Guard; (3) ALJ Brudzinski stated, “If I 

ruled that way, the Chief Judge would have my job” and (4) the Chief ALJ 

discussed open cases with a subordinate ALJ. We could not substantiate 

these allegations. We did not identify any evidence that the Chief ALJ 

told his subordinate ALJs how to rule or attempted to control the outcome 

of a case. 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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There is No Evidence that the Chief ALJ Told ALJ Massey to 

Always Rule in Favor of the Coast Guard 

Since leaving the Coast Guard in 2007, ALJ Massey stated on 

several occasions that the Chief ALJ specifically told her to rule in 

favor of the Coast Guard during a meeting held in Baltimore, MD 

on April 8, 2005. She made the allegation in her March 13, 2007, 

meeting with Mr. Mac Morgan. Mr. Morgan was counsel for the 

mariner who appeared before her in USCG v. Elsik. He also filed 

two lawsuits against the Coast Guard that were supported by a 

May 9, 2007 affidavit that he prepared based on ALJ Massey’s 

statements at the March 13, 2007 meeting. In addition, ALJ 

Massey made the allegations before Congress on July 31, 2007, 

and she repeated them during her interviews with us in 2009. 

ALJ Massey stated that it was not until her April 8, 2005, meeting 

with the Chief ALJ that she became certain that the ALJ program 

was biased in favor of the Coast Guard. During that meeting, ALJ 

Massey met with Chief ALJ Ingolia, the ALJ program’s Director 

of Judicial Administration, and two ALJ program staff attorneys to 

discuss her interaction with Coast Guard personnel in New 

Orleans, her hostile work environment concerns, and a March 7, 

2005, memorandum from the Chief ALJ to ALJs concerning 

discovery regulations. In her affidavit, ALJ Massey alleged that 

during the meeting Chief ALJ Ingolia told her the following: 

“I was specifically told that I should always rule for 

the Coast Guard and that if I ever found myself 

faced with a circumstance when I just absolutely 

positively could not find anyway to rule in favor of 

the Coast Guard on an issue, that I should rule 

against them, but word it delicately and just 

apologize for it as much as I could. Chief Judge 

Ingolia informed me that I was the only Coast 

Guard ALJ making trouble for him, the Coast 

Guard and the Commandant, and that it had to stop. 

Chief Judge Ingolia told me at that meeting that I 

should never ever make a ruling that caused the 

Coast Guard to do one more minute’s work than 

they wanted to do and that I should never concern 

myself with how hard it was on a respondent to go 

through the discovery process or to get discovery, 

that was just not a concern of mine.” 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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When we interviewed ALJ Massey, she firmly reiterated the 

statements in her affidavit. We asked ALJ Massey whether the 

Chief ALJ ever told her how to rule on a specific case pending 

before her. ALJ Massey did not identify a specific case in which 

the Chief ALJ told her how to rule. Rather, ALJ Massey replied 

that the Chief ALJ told her how to rule in all of her cases when he 

allegedly told her during the April 8, 2005, meeting to always rule 

in favor of the Coast Guard. Although ALJ Massey provided us 

with memoranda and personal notes that she believed supported 

her allegations, those documents did not prove that the Chief ALJ 

was directing her to rule for the Coast Guard. 

At some point during the April 8, 2005, meeting with the Chief 

ALJ, all but one of the staff members was asked to leave so the 

Chief ALJ could have a more private conversation with ALJ 

Massey. According to the Chief ALJ and the ALJ program’s 

attorney advisor still present at the meeting, the Chief ALJ did not 

tell ALJ Massey to “always rule in favor of the Coast Guard,” and 

the Chief ALJ did not make a statement that could reasonably be 

interpreted to mean “always rule in favor of the Coast Guard.” 

The Chief ALJ told us that he told ALJ Massey that she needed to 

follow the Coast Guard’s regulations. According to the attorney, 

ALJ Massey’s allegation that the Chief ALJ told her to always rule 

in favor of the Coast Guard is “a flat lie.” 

The attorney said she took notes during the meeting and ALJ 

Massey said she made her own notes of the meeting a few hours 

later. We compared the two sets of notes and made several 

observations. First, although the attorney advisor’s version of the 

meeting’s events was consistent with the Chief ALJ’s version of 

the meeting, neither set of notes indicate that the Chief ALJ told 

ALJ Massey to always rule in favor of the Coast Guard. Second, 

the sets of notes parallel each other with regard to topics discussed 

and regarding certain statements made by the Chief ALJ. For 

instance, both sets of notes indicate that (1) the Chief ALJ made 

statements relating to the necessity of getting cases to hearing and 

not dismissing them on technicalities; (2) the Chief ALJ admitted 

that he did not know the specific facts of ALJ Massey’s cases; and 

(3) the Chief ALJ and ALJ Massey discussed the use of 

Administrative Law Judge Internal Procedures and Practices 

(ALJIPPs) to offer policy guidance to ALJs. Third, both sets of 

notes indicate that the Chief ALJ made several comments that 

appeared to instruct ALJ Massey on both the law and her treatment 

of Coast Guard representatives. 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Both sets of notes make clear that the Chief ALJ and ALJ Massey 

strongly disagreed with respect to the proper interpretation of the 

Coast Guard’s discovery regulations. Specifically, the Chief ALJ 

appears to have 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 

ALJ Massey remained firm in her belief that broad pre-hearing 

discovery was a permissible tool to aid judicial economy. 

The attorney’s notes and ALJ Massey’s notes both indicate that the 

Chief ALJ told ALJ Massey that she was the problem in District 8. 

ALJ Massey asserts that when the Chief ALJ told her she was the 

cause of the problems that she was having with District 8 

investigating officers, he meant that she was the problem because 

she refused to rule in favor of the Coast Guard. According to the 

Chief ALJ, however, the fact that ALJ Massey ruled against the 

Coast Guard was not the problem. The Chief ALJ said the 

problem was ALJ Massey’s refusal to follow the Coast Guard’s 

laws and regulations and her unprofessional manner toward the 

Coast Guard investigating officers. 

The notes from the meeting along with the testimony of the 

attorney show that the Chief ALJ told ALJ Massey to follow Coast 

Guard law and regulations when deciding cases. The Chief ALJ’s 

instruction did not violate the law, and this direction was consistent 

with his duty to train ALJs and oversee the ALJ program. There is 

no evidence except ALJ Massey’s statements to support her 

allegations that the Chief ALJ told her to rule in favor of the Coast 

Guard. Current and former ALJs as well as several Coast Guard 

employees stated that the Chief ALJ did not discuss pending cases 

with ALJs, and as we noted, ALJ Massey did not allege that the 

Chief ALJ told her how to rule on any particular case. 

We Could Not Substantiate ALJ Massey’s Interpretations of 

Alleged Remarks by the Commandant, the Chief ALJ, and ALJ 

Brudzinski 

ALJ Massey supported her allegation that the Chief ALJ told her 

how to rule with inferences that she made from certain remarks by 

the former Commandant, the Chief ALJ, and ALJ Brudzinski. 

Specifically, she asserted that the Commandant’s remark during 

her job interview that “we take care of our own here at the Coast 

Guard,” the Chief ALJ’s use of the phrase “one big happy family,” 

and ALJ Brudzinski’s alleged statement “if I ruled that way, the 

Chief Judge would have my job” all supported her contention that 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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the Chief ALJ directed his subordinate ALJs to rule in the Coast 

Guard’s favor. ALJ Massey told us that, excluding the comments 

attributed to ALJ Brudzinski, she did not develop her current 

interpretation of those comments until after the April 8, 2005 

meeting, and did not tell anyone of her interpretation until two 

years later. 

ALJ Massey noted that during her interview process, when she 

heard the Commandant say, “We take care of our own,” she 

believed he meant that that the Coast Guard supported its 

employees with respect to family or work-related issues. She also 

stated that before the April 8, 2005 meeting, whenever she heard 

the Chief ALJ use the phrase, “one big happy family,” she believed 

that he was referring solely to the ALJ program and not to the 

Coast Guard as a whole. In addition, in her contemporaneous 

notes from the December 7, 2004 luncheon with ALJ Brudzinski, 

ALJ Massey does not state either that she believed that ALJ 

Brudzinski was not an independent fact finder or that he had 

predetermined the outcome of the Dresser matter. This is 

inconsistent with the level of certainty that she expressed on those 

issues over two years later in her affidavit and, even later in her 

2009 interviews with us. 

ALJ Massey’s Interpretation of the Commandant’s Alleged 

Remark 

ALJ Massey stated that during her interview process she met with 

Commandant Collins for approximately five minutes, and that they 

did not discuss anything substantive. She stated that when she 

heard the Commandant say, “We take care of our own,” she 

believed at the time that he meant that the Coast Guard supported 

its employees with respect to family or work-related issues. ALJ 

Massey later interpreted this alleged remark to mean that the 

Commandant was not saying that the Coast Guard supports its 

employees, but instead was hinting that he expected her to treat the 

Coast Guard favorably in her official capacity as an ALJ. We did 

not conclude that if the Commandant uttered this phrase he was in 

fact telegraphing an expectation that she rule in favor of the Coast 

Guard once she became a Coast Guard ALJ. Furthermore, neither 

the Chief ALJ nor ALJ Massey ever felt obligated to follow such 

an alleged directive. 

We do not agree with ALJ Massey that the Commandant implied 

to her before she was hired that Coast Guard ALJs are expected to 

forsake their oath of office and rule for the Coast Guard. It is 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

Page 11
 
unlikely the Commandant could affect such behavior on that 

comment alone. Coast Guard Commandants serve a four-year 

term and must be appointed by the President and confirmed by the 

Senate. They are not involved in the issuance of S&R CDOAs, 

having delegated that authority to the Vice Commandant, and the 

operation of the S&R adjudication process would not take up a 

significant amount of the Commandant’s time and attention. 

Historically, S&R hearings and CDOA issuance represent only a 

small portion of the Coast Guard’s mission-related activities and 

LMI’s workload, respectively. 

In contrast, the Chief ALJ’s tenure is indefinite. And, as is 

discussed in greater detail below, the APA protects the Chief ALJ 

and all other ALJs from being subject to improper adverse 

employment actions. Further, given the length of time it takes for 

an ALJ decision to be appealed and the periodic rotation of Coast 

Guard military employees, including the Commandant, even if the 

Commandant had directed the Chief ALJ to pressure his ALJs to 

rule in the favor of the Coast Guard, he would have no way to 

ensure that the Chief ALJ followed his directive. Finally, Chief 

ALJ Ingolia asserted that no Commandant has ever instructed him 

to rule in favor of the Coast Guard, nor has a Commandant ever 

implied that the Coast Guard ALJ should “take care of its own” 

when presiding over S&R proceedings. 

ALJ Massey’s Interpretation of the Chief ALJ’s Frequently Used 

Remark, “One Big Happy Family” 

ALJ Massey told us that when she first heard the Chief ALJ use 

the phrase, “one big happy family,” she believed the phrase 

referred to the ALJ program and not to the Coast Guard as a whole. 

However, in her March 2007 affidavit, she alleged that in the April 

8, 2005, meeting “Chief ALJ Ingolia made it very clear that ‘we’re 

one big happy family’ means [she] need[s] to do [her] part to 

support the Coast Guard.” ALJ Massey also alleges that by 

“support the Coast Guard, [she] was specifically told that [she] 

should always rule for the Coast Guard.” Therefore, ALJ Massey 

interpreted Chief ALJ Ingolia’s use of the phrase “one big happy 

family” to mean that she should always rule for the Coast Guard. 

The Chief ALJ told us that he uses this phrase often and is 

referring to ALJ program employees, more specifically, the 

docketing center employees and the ALJs. No current or former 

employee with whom we spoke shared ALJ Massey’s 

interpretation of what the phrase means. We interviewed several 

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current and former ALJ program staff members regarding the 

Chief ALJ’s use of this phrase, and each of them insisted the Chief 

ALJ uses the phrase to refer only to the ALJ program staff and that 

they have never heard him use the phrase as a reference to the 

Coast Guard as a whole. They explained that the Chief ALJ 

preferred to run the ALJ program, particularly the docketing 

center, like a large family, avoiding conflict where possible and 

taking notice of each other’s family lives and personal 

achievements. 

We uncovered no evidence through witness testimony, supporting 

facts, or other documentation that the Chief ALJ expects the ALJs 

to rule in favor of the Coast Guard or has directed them to do so. 

On the contrary, Chief ALJ Ingolia has undertaken several steps to 

make the ALJ program more independent from the Coast Guard. 

The ALJ program occupied offices in buildings where S&R 

program staff were located but did not share office space with 

S&R program staff. He limited his interaction with other Coast 

Guard senior leadership, and declined to review ALJ’s pending 

cases although his job description authorizes him to do so. 

We Could Neither Substantiate ALJ Brudzinski’s Alleged Remark 

nor ALJ Massey’s Interpretation of it, and There is No Evidence 

that ALJ Brudzinski Prejudged the Dresser Case 

In the affidavit filed in Dresser v. Ingolia, ALJ Massey alleged that 

during a lunch conversation on December 7, 2004, ALJ Brudzinski 

made certain statements to her. ALJ Massey attended the hearing 

in New Orleans as an observer. According to ALJ Massey, at the 

lunch, which took place during a break in the USCG v. Dresser 

hearing, ALJ Brudzinski said that if he ruled in favor of Mr. 

Dresser, the Chief ALJ “would have [his] job.” ALJ Massey 

asserted that ALJ Brudzinski was serious when he made this 

statement and that he repeated it while shaking his head. This 

alleged statement led her to believe that the Chief ALJ told ALJ 

Brudzinski how to rule in the case and that the outcome of the case 

was predetermined prior to the beginning of the hearing. 

We cannot say with complete certainty whether ALJ Brudzinski 

made these statements. However, we did not identify any evidence 

that (1) confirmed that ALJ Brudzinski actually made the alleged 

statements in a serious manner; (2) ALJ Brudzinski prejudged the 

outcome of the Dresser matter; (3) ALJ Brudzinski believed that 

Chief ALJ Ingolia could or would fire him for not ruling in favor 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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of the Coast Guard; or (4) Chief ALJ Ingolia told ALJ Brudzinski 

how to rule. 

When we asked ALJ Brudzinski whether he made the statement 

that ALJ Massey ascribed to him in her affidavit, he could not 

specifically recall his actual statements at the December 7, 2004, 

lunch. However, he insisted that had he made the alleged 

statement or a similar remark, he was not and could not have been 

serious, and ALJ Massey must have misunderstood the context in 

which he made it. Two ALJ program staff members, both of 

whom had left the ALJ program by the time of our interview, 

attended the luncheon with ALJ Brudzinski and ALJ Massey. 

Neither former staff member remembered ALJ Brudzinski making 

the alleged remark, though all four people were sitting in a booth at 

a fast food restaurant at the time. In addition, they both stated that 

had he made the remark, they would have noticed and remembered 

it, because ALJ Brudzinski had a reputation within the ALJ 

program for being a good, thoughtful judge. The former staff 

members present at the lunch believe that if ALJ Brudzinski made 

the alleged statement, he did not mean for it to be taken literally. 

ALJ Brudzinski asserted that at that time of the December 7, 2004, 

lunch, he had not yet determined the outcome of the Dresser 

matter. He stated that it took him several months to review the 

voluminous record in the matter and to reach a decision. He noted 

that the breadth and depth of his final opinion in Dresser, which 

was 60 pages long, reflects that fact. One of the ALJ program staff 

members who attended the December 7, 2004, lunch, was a law 

clerk assigned to assist ALJ Brudzinski in writing the Dresser 

opinion. This law clerk confirmed that she and ALJ Brudzinski 

spent a long time reviewing the facts in the Dresser matter, trying 

to determine which party should prevail. She insisted that the 

outcome of the case was not predetermined and noted that ALJ 

Brudzinski did not issue his opinion in Dresser until six months 

after the lunch. 

For ALJ Massey’s allegation that ALJ Brudzinski was serious 

when he allegedly said the Chief ALJ would “have his job” to be 

valid, ALJ Brudzinski had to believe that Chief ALJ Ingolia could 

actually fire him for not ruling according to Chief ALJ Ingolia’s 

alleged instructions. There was no evidence that ALJ Brudzinski 

believed that Chief ALJ Ingolia could fire him for ruling contrary 

to Chief ALJ Ingolia’s direction. ALJ Brudzinski asserted that an 

ALJ’s independence is protected by the APA and that every ALJ 

knows that they cannot be summarily fired by their agency. He 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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told us that it is common knowledge among ALJs that they cannot 

be removed by the agency unless there is a determination of good 

cause by the MSPB. 

We confirmed ALJ Brudzinski’s statements regarding both the 

protections afforded the ALJs and the fact that the existence of 

those protections is common knowledge among ALJs. The APA 

prohibits an agency from removing, suspending, or reducing the 

pay or grade of an ALJ without good cause and adjudication of the 

matter before the MSPB.4 Further, OPM regulations prevent 

agencies from giving an ALJ a performance evaluation, setting an 

ALJ’s pay rate, or giving any monetary or honorary award or 

incentive to an ALJ.5 These protections help to safeguard an 

ALJ’s decisional independence, because the agency can neither 

penalize nor reward an ALJ, regardless of whether it agrees or 

disagrees with the ALJ’s decisions. 

There is no evidence to support ALJ Massey’s allegation that Chief 

ALJ Ingolia told ALJ Brudzinski how to rule. Both Chief ALJ 

Ingolia and ALJ Brudzinski stated that they rarely spoke to each 

other until they were both named as defendants in Dresser v. 

Ingolia. ALJ Brudzinski told us that when they did speak, they did 

not speak about pending cases. ALJ Brudzinski also stated that 

Chief ALJ Ingolia was a “hands off” manager and current and 

former members of the ALJ program’s senior staff and other Coast 

Guard ALJs confirmed this fact. The Chief ALJ delegates much of 

his administrative and supervisory authority to the Director of 

Judicial Administration and his senior staff. Further, he rarely 

initiated any substantive contact with the field ALJs, with the 

exception of the ALJ program’s annual training conferences or 

periodic, program-wide conference calls. For example, the Chief 

ALJ does not require docketing center staff to obtain his approval 

before assigning cases to ALJs, providing legal support and advice 

to ALJs, or assisting ALJs with any logistical issues. As a result, 

the Chief ALJ is largely removed from the day-to-day 

administration of the ALJ program and is unlikely to know the 

status of any particular case assigned to a field ALJ. In fact, 

certain ALJs and docketing center senior staff felt that perhaps he 

was too removed from the workings of the ALJ program and did 

not provide enough guidance to his staff or support to his field 

ALJs. 

4 5 U.S.C. § 7521. 

5

 5 C.F.R. § 930.205-.206. 

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In addition, ALJ Massey did not explain, and neither did ALJ 

Brudzinski, as to why he, who barely knew her, allegedly 

confessed to her in this manner and about such a serious issue. 

And although ALJ Massey now contends that she was extremely 

bothered by ALJ Brudzinski’s remarks, she treated ALJ Brudzinski 

and the two staff members as if nothing happened the day after the 

lunch. She did not mention her concerns to anyone at the lunch or 

during her tenure as a Coast Guard ALJ. 

ALJ Massey’s allegation that Chief ALJ Ingolia told ALJ 

Brudzinski how to rule is based on inference and speculation. She 

admitted that ALJ Brudzinski never said the Chief ALJ had told 

him how to rule in Dresser, nor did ALJ Brudzinski ever tell her 

which party would ultimately prevail in the matter. During her 

March 13, 2007 meeting with Mr. Morgan, ALJ Massey stated, 

“ALJ Brudzinski never said, ‘the Chief ALJ told me how to rule in 

this case,’ but the gist of the conversation was, in my professional 

opinion, that there had been conversations and the Chief ALJ had 

indicated to him how the case needed to come out.” Thus, ALJ 

Massey’s allegation that ALJ Brudzinski prejudged the Dresser 

matter at the Chief ALJ’s direction is only based on her own 

supposition. 

There is No Evidence that the Chief ALJ Engaged in any Improper 

Discussions About Pending Cases 

In her affidavit and in her interviews with us, ALJ Massey 

discussed two instances in which she believes pending cases were 

inappropriately discussed. In various venues, she has also asserted 

that these discussions may have constituted prohibited, ex parte 

communications. In the first instance, she mentioned that during 

her job interview with Chief ALJ Ingolia, the Chief ALJ told her 

that he was on the phone with ALJ Brudzinski and that, from time 

to time, he talks about active cases with ALJ Brudzinski. 

However, even if her allegations are true, they do not, without 

more facts, provide evidence of any improper conduct. The second 

instance occurred on February 24, 2005, when ALJ program staff 

and an attorney who handles appeals to the Commandant met with 

District 8 S&R program staff to hear their complaints about ALJ 

Massey’s rulings and demeanor. As discussed below, this meeting 

did create an appearance of impropriety. However, there was no 

evidence that any ex parte communications occurred at the 

meeting or that the Chief ALJ or the Commandant ever directed 

the outcomes of any pending S&R case or appeal, respectively. 

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Under the APA, an ex parte communication is defined as “an oral 

or written communication not on the public record with respect to 

which reasonable prior notice to all parties is not given.”6 The 

APA prohibits ex parte communications when the communications 

between an “interested person” and an agency decision maker are 

“relevant to the merits of the proceeding.”7 The APA also 

prohibits certain commingling of investigative and adjudicative 

functions. Specifically, “[a]n employee or agent engaged in the 

performance of investigative or prosecuting functions for an 

agency in a case may not, in that or a factually related case, 

participate or advise in the decision, recommended decision, or 

agency review, except as witness or counsel in public 

proceedings.”8

 In this case the ALJ, in addition to the agency 

presiding official, cannot consult a person or party regarding a fact 

at issue in a proceeding unless all parties in the matter are given 

notice and an opportunity to participate.9

 The ALJ program 

explicitly requires Coast Guard ALJs to follow the APA’s 

prohibitions on the commingling of functions and ex parte 

communications. Further, the Coast Guard has incorporated the 

APA’s prohibition on ex parte communications into the regulations 

governing S&R proceedings.10 

It is Permissible for the Chief ALJ to Discuss Pending Cases with 

the ALJs 

As stated above, ALJ Massey alleges that the Chief ALJ told her 

that he routinely discussed pending cases with ALJ Brudzinski. In 

addition, she asserted that the discussion of pending cases between 

the Chief ALJ and one of his subordinate ALJs is inherently 

improper and could be construed as a prohibited ex parte 

communication. However, neither the APA nor the American Bar 

Association’s (ABA) Model Code of Judicial Conduct (Model 

Code) prohibits ALJs from discussing pending cases with each 

other or with members of their staff. Further, the Chief ALJ may 

review and discuss pending cases in furtherance of his 

administrative responsibilities. 

Both the APA and the Model Code prohibit ALJs from acquiring 

facts not already in the record without giving notice to all parties to 

6 5 U.S.C. § 551(14). 

7 5 U.S.C. § 557(d)(1)(A) & (B).
 8 5 U.S.C. § 554(d).
 9 5 U.S.C. § 554(d)(1).

10 33 C.F.R. § 20.205 (mandating that ALJs must comply with 5 U.S.C. § 557(d)).
 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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the proceeding. Under the APA, ALJs are prohibited from 

discussing the merits of a case with outside parties, but no such 

prohibition exists regarding discussions with other employees 

engaged in adjudicatory functions such as other ALJs or their law 

clerks. ALJs are prohibited from consulting with Coast Guard 

employees performing investigative or prosecutorial tasks, or with 

mariners or their counsel, about the facts at issue in a pending 

matter without notice to all parties. Nothing prohibits ALJs from 

discussing the merits of a pending case with fellow members of the 

ALJ program. As a practical matter, in order to obtain legal 

research and advice from the ALJ program’s law clerks, attorney 

advisors, and fellow ALJs, an ALJ must discuss the substantive 

issues in their cases. 

ALJ Massey alleged that the Chief ALJ’s discussions with ALJ 

Brudzinski were improper. However, the law, judicial canons, and 

agency policy authorize the Chief ALJ to discuss pending cases 

with ALJs. The Model Code also allows ALJs to discuss pending 

cases with each other and with their staff. According to the Model 

Code: 

A judge may consult with court staff and court 

officials whose functions are to aid the judge in 

carrying out the judge’s adjudicative 

responsibilities, or with other judges, provided the 

judge makes reasonable efforts to avoid receiving 

factual information that is not part of the record, and 

does not abrogate the responsibility personally to 

decide the matter.11 

However, the Model Code states that judges cannot abdicate their 

decision-making responsibility to another. ALJ Massey concluded 

that there were ex parte communications between Chief ALJ 

Ingolia and ALJ Brudzinski because she thought the Chief ALJ 

must have told ALJ Brudzinski how he expected him to rule. 

Although she did not specifically make the connection, we 

assumed she based this allegation on the Chief ALJ’s alleged 

statement regarding his discussions of active cases with ALJ 

Brudzinski and ALJ Brudzinski’s alleged statement at lunch on 

December 7, 2004. Nevertheless, ALJ Massey acknowledged that 

11 ABA Model Code of Judicial Conduct, Canon 3B(7)(c) (1990). See also Rule. 2.9, Comment 5, “A 

judge may consult with other judges on pending matters, but must avoid ex parte discussions of a case with 

judges who have previously been disqualified from hearing the matter, and with judges who have appellate 

jurisdiction over the matter.” Model Code of Judicial Conduct (2007). 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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she neither heard the Chief ALJ discuss pending cases with another 

ALJ nor heard the Chief ALJ direct another ALJ how to rule. She 

also admitted that ALJ Brudzinski never said that the Chief ALJ 

told him how to rule. ALJ Massey did not provide any evidence 

that the Chief ALJ had ever either discussed facts outside the 

record with his subordinate ALJs or prevented or improperly 

influenced any ALJ from deciding their cases as they saw fit. The 

Chief ALJ told us that during the April 8, 2005, meeting he told 

ALJ Massey that he would have ruled differently than she did on 

the issues in certain matters. That said, the Chief ALJ only 

discussed ALJ Massey’s rulings in closed cases. ALJ Massey did 

not allege that the Chief ALJ tried to influence her with respect to 

any specific case. 

There is No Evidence that Prohibited Ex Parte Communications 

Took Place at the February 24, 2005, Meeting 

ALJ Massey alleges that improper, ex parte communications may 

have taken place either between the ALJ program staff and the 

investigating officers or between an attorney from LMI and 

investigating officers at the February 24, 2005 meeting. Although 

there is no evidence that any prohibited, ex parte communications 

took place at the meeting, there were two instances of contact 

between the Coast Guard’s adjudicative staff and its S&R program 

staff that were ill-advised and made the meeting appear improper. 

No prohibited ex parte communications took place at the February 

24, 2005, meeting because the relevant agency decision maker, i.e., 

ALJ Massey, was not in attendance. Although the investigating 

officers discussed various issues regarding the proper 

interpretation of discovery regulations in the context of their cases, 

the ALJ program representatives who attended, the Director of 

Judicial Administration and two ALJ program staff attorneys, were 

not involved in any matters pending before ALJ Massey, and did 

not have any decision-making role with respect to those matters. 

Although we concluded that there were no prohibited, ex parte 

communications, there were two instances of ill-advised contacts 

between the adjudicative and prosecutorial arms of the Coast 

Guard S&R program. In the first instance, an LMI attorney who 

was involved with drafting CDOAs on behalf of the ViceCommandant, attended the meeting. In the second instance, a 

member of the Chief ALJ’s senior staff debriefed ALJ Massey on 

what occurred at the meeting, which led her to conclude that the 

District 8 investigating officers were complaining about her rulings 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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in pending cases. However, there is no evidence that the 

Commandant or the Chief ALJ directed these individuals to 

influence the outcome of a pending S&R case or appeal, or that 

contact between the adjudicative and prosecutorial arms of the 

Coast Guard influenced the outcome of any case. 

When the Chief ALJ sent members of his senior staff to New 

Orleans to investigate the complaints about ALJ Massey’s 

treatment of investigating officers in her courtroom, he gave 

instructions that they should not discuss pending cases and, in 

particular, not discuss cases by name. Instead, he only wanted his 

staff to discuss the general issues about which the investigating 

officers had complaints, with the hope of being able to resolve 

those issues without having to undertake a more formal 

investigation of ALJ Massey’s conduct. When the meeting began, 

attendees were given ground rules prohibiting them from 

discussing specific cases by name. Chief ALJ Ingolia only 

allowed members of his staff who were not providing assistance to 

ALJ Massey on pending cases to attend the meeting. The staff 

members who attended the meeting told us that prior to the 

meeting they believed the investigating officers’ complaints to be 

frivolous and based largely on the officers’ dislike of ALJ 

Massey’s demeanor. 

Unbeknownst to the Chief ALJ and his staff, the S&R program 

staff invited the LMI attorney to attend the meeting and act as the 

S&R program’s expert on Coast Guard policy and precedent. 

Between the time that the Chief ALJ’s office received the 

investigating officers’ written complaints in December and the 

February meeting, ALJ Massey had issued several rulings, 

primarily involving discovery matters, that the District 8 attorneys 

and investigating officers believed were incorrect as a matter of 

law. Although the LMI attorney attended the meeting to be a 

resource for the S&R program staff, she told us and other meeting 

attendees confirmed that she was not an active participant in the 

meeting. 

The LMI attorney’s attendance was not an improper ex parte 

contact because none of the matters being discussed were under 

appeal to the Commandant at the time of the meeting. As a result, 

she was not involved in the agency’s decision-making process at 

that time. However, she should have been prohibited from later 

participating in the appeals of ALJ Massey’s cases. Despite the 

attendees’ assertions that no case names were discussed during the 

meeting, attendees knew that ALJ Massey’s cases were the subject 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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of discussion and it is possible that the LMI attorney could have 

recognized the cases once they reached LMI on appeal. Although 

there is no evidence that the LMI attorney’s attendance affected the 

outcome of the appeals, she was involved in drafting the initial 

CDOAs for almost all of ALJ Massey’s cases. The Coast Guard 

asserts that because the CDOAs undergo several levels of review 

before they are submitted to the Vice Commandant for signature, 

the LMI attorney’s presence at the meeting did not affect the 

outcome of any CDOA. Without regard to whether her attendance 

at the meeting affected the outcome of the CDOA, it created an 

appearance of impropriety and exposed the need for procedures to 

prevent improper contact between the S&R program staff and the 

appellate staff. 

The second contact occurred after the February 24, 2005, meeting. 

The Chief ALJ assigned one of the staff attorneys who attended the 

meeting to act as a liaison between the Chief ALJ’s staff and ALJ 

Massey during the Chief ALJ’s investigation into the investigating 

officers’ allegations. The staff attorney provided ALJ Massey with 

a copy of the investigating officers’ complaints before the meeting. 

He also invited ALJ Massey to the February 24, 2005, meeting. A 

few days after the meeting, he called ALJ Massey to inform her of 

the investigating officers’ complaints at the meeting. However, the 

Chief ALJ was unaware that the senior attorney was sharing the 

investigating officers’ written complaints and the topics discussed 

during the meeting with ALJ Massey. Likewise, the Chief ALJ 

was unaware that the senior attorney initially invited ALJ Massey 

to attend the meeting. 

While listening to the ALJ program attorney recount the details of 

the meeting, ALJ Massey asserted that the investigating officers 

had discussed issues that had arisen in cases pending before her, 

and she abruptly ended the call before the senior attorney could 

assure her that no case names were discussed and that precautions 

were taken to prevent improper ex parte discussions. Although the 

members of the Chief ALJ’s senior staff, including the senior 

attorney who briefed ALJ Massey after the meeting, did not know 

whether the matters discussed with the investigating officers 

related to ALJ Massey’s pending cases because they were not 

involved in them, ALJ Massey recognized her own pending cases. 

By discussing the matters from the February 24, 2005, meeting 

with ALJ Massey, the senior attorney gave ALJ Massey 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 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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and thereby force her to rule in the Coast Guard’s favor. Although 

communications between the ALJ program staff attorney and the 

investigating officers could not be considered ex parte because the 

staff attorney was not involved in any of the pending cases, by 

conveying the investigating officers’ comments to ALJ Massey, he 

could have inadvertently conveyed ex parte information to her. He 

could have provided ALJ Massey with facts that were not in the 

case record in violation of the Model Code. But to the extent that 

he did, only ALJ Massey would have been in the position to 

recognize that fact and make note of it on the record, as is required 

by the Model Code, the APA,12 and Coast Guard regulations.13 

ALJ Massey did not enter any information relating to the February 

24, 2005, meeting on the record. 

Although we identified two instances in which problematic contact 

occurred in conjunction with the February 24, 2005, meeting 

between the Chief ALJ’s senior staff and the Coast Guard’s S&R 

prosecutorial staff, none of these contacts were made either under 

the direction of or with the knowledge of the Chief ALJ. In 

addition, none of the contacts that were made involved contact 

between a party and a member of the ALJ program who was 

involved in the drafting and issuing of decisions in ALJ Massey’s 

Coast Guard cases. 

The Chief ALJ Instructed ALJ Massey to Follow Regulations 

We could not find sufficient evidence to support ALJ Massey’s 

allegations that Chief ALJ Ingolia told her during an April 8, 2005, 

meeting that she should always rule in favor of the Coast Guard. 

Further, both the Chief ALJ and the ALJ program’s attorney 

advisor present asserted that the Chief ALJ only told ALJ Massey 

to follow the law and did not otherwise direct her how to rule in 

her cases. Upon further review of contemporaneous documents, 

witness statements, and ALJ Massey’s rulings, the Chief ALJ’s 

version of events appeared accurate. 

We substantiated the Chief ALJ’s assertions that (1) ALJ Massey 

repeatedly ruled in contravention of the Coast Guard’s discovery 

12 See 5 U.S.C. 557(d)(1)(C) (requiring an ALJ who receives a prohibited ex parte communication to place 

on the public record of the proceeding: “(i) all such written communications; (ii) memoranda stating the 

substance of all such oral communications; and (iii) all written responses, and memoranda stating the 

substance of all oral responses, to the materials described in clauses (i) and (ii)....”). 13 According to 33 C.F.R. 20.205, “Ex parte communications are governed by subsection 557(d) of the 

Administrative Procedure Act (5. U.S.C. 557(d)). 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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regulations; (2) she refused to be guided by ALJ program staff 

when he advised her to follow the law; and (3) as a result of a 

backlog in the CDOA process, without his intervention, ALJ 

Massey would have been able to issue orders in contravention of 

the regulations for years before the Commandant could correct her 

errors of law on appeal. This would have allowed the S&R 

program’s busiest judicial district to operate in a dysfunctional 

manner for an indefinite period of time. According to the Chief 

ALJ, it was for these reasons that he tried to address the ALJ 

program’s concerns with ALJ Massey’s discovery rulings during 

the April 8, 2005, meeting by instructing her to follow the Coast 

Guard regulations. 

ALJ Massey Did Not Follow Coast Guard Law 

We believe the Chief ALJ’s assertion that at the April 8, 2005, 

meeting, he directed ALJ Massey to follow the law. ALJ Massey 

had not followed Coast Guard’s discovery regulations repeatedly 

and, in one instance, openly refused to follow Coast Guard 

precedent. 

At the time of the April 8, 2005, meeting, ALJ Massey had just 

finished issuing a series of controversial discovery orders in USCG 

v. Rogers and USCG v. Elsik, which ended with her dismissing the 

matters with prejudice because of the Coast Guard’s refusal to 

comply with those orders. In both cases, ALJ Massey ordered the 

Coast Guard to comply with discovery orders that she issued in 

contravention of Coast Guard regulations without giving the Coast 

Guard a chance to object to their issuance. For example, in USCG 

v. Rogers, the respondent requested a subpoena without filing a 

motion as required by 33 C.F.R. § 20.608(a) and without 

establishing the circumstances requiring discovery as required by 

33 C.F.R. § 20.601(e). The next day, ALJ Massey issued the 

subpoena without making the necessary determinations required by 

33 C.F.R. § 20.601(d). Further, she granted the motion within 24 

hours, thereby denying the Coast Guard the 10 days to respond as 

required by 33 C.F.R. § 20.309(d). In effect, ALJ Massey shifted 

the respondent’s burden of proof to the Coast Guard, requiring the 

Coast Guard to prove why further discovery should not be granted 

instead of requiring the respondent to prove that it should. In 

addition, in the Elsik matter, ALJ Massey openly refused to follow 

binding Coast Guard legal precedent. Specifically, she stated 

during a prehearing conference that she disagreed with the 

Commandant’s reasoning in a CDOA and would not follow it. In 

the Elsik decision, ALJ Massey reiterated her refusal to follow 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Coast Guard precedent, asserting that she found the Commandant’s 

logic “peculiar” and “creative.” 

In both the Elsik and Rogers cases, the Vice Commandant reversed 

ALJ Massey on appeal for having erred on the law. In Rogers, the 

Vice Commandant found that ALJ Massey abused her discretion 

and exceeded her authority by dismissing the case with prejudice 

on the basis of the Coast Guard’s discovery violations. In Elsik, 

the Vice Commandant also reversed ALJ Massey, holding that she 

(1) committed an error of law when she dismissed the misconduct 

allegations in contravention of the plain-language of the statute; 

(2) abused her discretion and committed an error of law when she 

dismissed the negligence allegation for a discovery violation; and 

(3) acted arbitrarily and capriciously by failing to follow the 

applicable discovery rules. In short, the Vice Commandant found 

that ALJ Massey “misunderstood the applicable law and 

misapplied the Coast Guard’s procedural rules.”14 

ALJ Massey did not have the authority to ignore federal 

regulations or Coast Guard precedent when deciding her cases. 

Although the APA contains a number of provisions designed to 

guarantee the decisional independence of hearing examiners, the 

ALJ’s decisional independence is necessarily limited because “[o]n 

matters of law and policy...ALJs are entirely subject to the 

agency.”15 According to the APA, an ALJ’s enumerated powers in 

presiding over a hearing are subject to the published rules of the 

agency. Furthermore, the APA allows agencies to retain the right 

to review an ALJ’s decisions and to reverse those decisions on 

policy grounds, thereby allowing the agency to impose its policy 

views on ALJ decisions through the appeals process. In essence, 

Congress has directed the agency to promulgate regulations, to 

formulate policy through fact-finding and application of the law, 

and to issue the agency’s position in any given matter. The APA 

does not authorize the ALJ to usurp that authority. 

Accordingly, the Commandant always retains the right to issue a 

final determination in S&R proceedings as to both fact and law. 

Specifically, the Commandant has the ability to direct the ALJ’s 

policy determinations and interpretation of the regulations by 

issuing binding Decisions on Appeal. Thus, as a Coast Guard ALJ, 

ALJ Massey was required to follow not only Coast Guard 

14 Appeal Decision 2658 (ELSIK) (2006).
 15 Ass’n of Admin. Law Judges v. Heckler, 594 F. Supp. 1132, 1141 (D.D.C. 1984). 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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regulations, but also the Commandant’s statements of policy as 

articulated in CDOAs. ALJ Massey did not have the authority to 

ignore the Coast Guard’s regulations, policies, or procedures or the 

authority to create her own interpretations of law that were 

independent of the agency.16 

ALJ Massey Refused Guidance to Follow the Law 

Although ALJ Massey may have construed the Chief ALJ’s 

guidance to follow the law to be an infringement upon her 

decisional independence and an improper directive as to how to 

rule in her S&R cases, such instruction is appropriate and in 

keeping with the Chief ALJ’s role as head of the ALJ program. 

The Commandant has delegated to the Chief ALJ the authority to 

ensure “general compliance of subordinate judges’ decisions with 

agency rules and procedures” and to develop and implement 

“policies and other guidance which has usage throughout the 

agency-wide ALJ program.” In addition, the Chief ALJ is tasked 

with training new and incumbent ALJs, reviewing the ALJs’ 

decisions to ensure that the ALJs are complying with the 

applicable law and generally making certain that ALJs are 

performing their duties competently. 

In interviews, the Chief ALJ as well as current and former 

members of his senior staff asserted that many of the actions that 

ALJ Massey interpreted as attempts to pressure her to rule in favor 

of the Coast Guard were in fact attempts to get ALJ Massey to rule 

according to the law. According to ALJ program staff, the Chief 

ALJ was attempting to get ALJ Massey to rule in accordance with 

the law without having to initiate an informal disciplinary action 

against her. The ALJ program’s senior staff told us that after the 

February 24, 2005, meeting at which the investigating officers 

complained about ALJ Massey ruling in contravention of Coast 

Guard discovery regulations, the ALJ program was put on notice 

that ALJ Massey was not following the law. Soon thereafter, the 

ALJ program issued the March 7, 2005, discovery memorandum. 

According to the ALJ program, they designed this memorandum to 

be a clear restatement of the regulations and to put an end to any 

misunderstandings of the Coast Guard’s discovery regulations that 

existed among the ALJs. ALJ program senior staff stated that they 

anticipated that ALJ Massey would likely--and, in our view, 

correctly--believe that the memorandum was directed at her, but 

16 5 U.S.C. § 556(c). 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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they felt preventing any further erroneous rulings was more 

important. The Coast Guard district that ALJ Massey presided 

over generated more contested S&R cases than any other in the 

Coast Guard and the ALJ program believed that a dysfunctional 

adjudicative process in her courtroom could severely disrupt both 

the ALJ and S&R programs. Furthermore, given the lengthy 

appeals process, the ALJ program feared that without the Chief 

ALJ’s intervention, ALJ Massey would continue to issue erroneous 

rulings for years before the relevant cases were overturned by the 

Commandant. 

It is evident in her affidavit, her memoranda to the Chief ALJ, and 

in her interviews with us that ALJ Massey believed that the March 

7, 2005, memorandum was an “attempt to invade the domain of 

[her] judicial independence.” She suspected that the S&R program 

staff may have been involved in the drafting of the March 7, 2005, 

memorandum. For example, in her April 4, 2005, memorandum to 

the Chief ALJ, ALJ Massey stated that similarities between the 

content of the March 7, 2005, memorandum and two pleadings 

filed by the Coast Guard in her cases showed that the Coast Guard 

was using the Chief ALJ’s office to get its way with respect to 

rulings on issues in cases before her. However, there is no 

evidence that anyone outside of the ALJ program was involved in 

the drafting in the discovery memorandum, nor is there any 

evidence that the memorandum was intended to influence any ALJ 

to rule in favor of the Coast Guard. In fact, much of the language 

in the March 7, 2005, memorandum appears to be drawn directly 

from the Coast Guard’s discovery regulations and the Federal 

Register, and in any event, would be equally applicable to all 

parties in Coast Guard proceedings 

During this same time, ALJ Massey decided that the legal research 

given to her by the docketing center staff attorneys and law clerks 

were further attempts by the Chief ALJ to influence her judicial 

decision-making, even if the research was performed in response to 

her own requests for assistance. In both the Rogers and Elsik 

matters, she ignored the staff attorneys’ legal research that showed 

that her decisions were not supported by, and in some cases were 

in direct contravention of, Coast Guard precedent. For example, in 

the Elsik matter, a docketing center intern advised ALJ Massey in a 

legal research memorandum that “Coast Guard law firmly supports 

the use of criminal statutes to establish misconduct,” and referred 

her to binding CDOAs. Nevertheless, ALJ Massey ruled contrary 

to precedent. We found no evidence that either the Chief ALJ or 

any member of his senior staff ever directed the outcome of any 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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legal research or advice that the docketing center provided to the 

Coast Guard ALJs. 

Thus, at the time of the April 8, 2005, meeting, ALJ Massey had 

refused the ALJ program’s attempts to get her to rule according to 

the law. This supported the Chief ALJ’s statements that during the 

meeting he was instructing her to follow Coast Guard regulations, 

and was not directing her to always rule in favor of the Coast 

Guard. 

The Coast Guard Did Not Issue CDOAs in a Timely Manner 

Although waiting for the appeals process to run its course might 

have ultimately proved less disruptive to the ALJ program than the 

Chief ALJ instructing ALJ Massey to follow regulations, there was 

a significant backlog of CDOAs during ALJ Massey’s tenure at the 

Coast Guard. Excluding the fact that at least one of the appeals of 

ALJ Massey’s cases may have been stayed as a result of 

subsequent civil litigation, some of her cases were pending on 

appeal for almost two years. In addition, ALJ Massey’s Coast 

Guard district produced more contested S&R cases than most of 

the other districts combined. Allowing ALJ Massey to continue to 

rule in contravention of the law would have further burdened the 

appeals process, prevented mariners from getting a speedy and 

final resolution of matters in which their livelihood was at stake, 

and allowed mariners who did not operate in compliance with 

marine safety laws to retain their licenses indefinitely. 

During her tenure as a sitting Coast Guard ALJ, ALJ Massey 

presided over 12 S&R hearings. Although a mariner never 

appealed one of ALJ Massey’s decisions, the Coast Guard 

appealed 7 of her decisions and the Commandant overturned 3 of 

them. These numbers do not include the USCG v. McDonald 

matter that the Coast Guard planned to appeal, but later withdrew 

its appeal when ALJ Massey realized her error of law and 

voluntarily agreed to vacate her erroneous decision. Thus, 

including the McDonald matter, the Coast Guard appealed twothirds of ALJ Massey’s cases; one-third of her cases were either 

overturned or contained an error of law. Moreover, the 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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disagreement between ALJ Massey and the investigating officers 

over the correct interpretation of the Coast Guard’s discovery 

regulations that underlie many of these appeals and errors of law 

were escalating over time. 

According to ALJ program senior staff, the ALJ program was 

compelled to intervene and try to stop ALJ Massey from ruling in 

contravention of Coast Guard regulations because of the length of 

time it would take the appellate process to correct her rulings. The 

disagreements between ALJ Massey and the Coast Guard’s 

investigative officers over her refusal to follow Coast Guard 

regulations were such that they believed she was jeopardizing S&R 

proceedings. The Chief ALJ and his senior staff assert that as a 

result of these concerns the Chief ALJ tried to guide ALJ Massey 

to rule according to the law via the March 7, 2005, discovery 

memorandum and then later via the April 8, 2005, meeting. 

Given the Chief ALJ’s role as the head of the ALJ program and his 

duty to train new ALJs, it is logical that he would provide guidance 

to a new ALJ who was ruling in contravention of the law. The 

March 7, 2005, discovery memorandum does not contain any 

language the could be reasonably be construed as directing the 

outcome of S&R proceedings or requiring ALJs to rule in favor of 

a particular party. Although the parties’ notes and the statements 

of various witnesses do establish that the Chief ALJ offered ALJ 

Massey guidance on the discovery regulations and instructed her to 

follow the regulations, there is no evidence other than ALJ 

Massey’s statements two years later that he told her to always rule 

in favor of the Coast Guard. In sum, while we could not 

substantiate ALJ Massey’s statements, we could corroborate many 

of the Chief ALJ’s statements. 

ALJ Massey’s Conduct Undermined the Gravity of the 

Allegations 

The timing and manner in which ALJ Massey made her allegations 

also undermined the gravity of the allegations. On March 13, 

2007, ALJ Massey first made her allegations in a sworn statement 

filed in a civil action in support of a mariner challenging the 

USCG’s decision to suspend his credentials and requesting 

$5,000,000 in compensatory damages and $10,000,000 in punitive 

damages, jointly and severally, from the Chief ALJ, ALJ 

Brudzinski, and two docketing center employees, including a 

former law clerk. The filing took place nearly two years after her 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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April 8, 2005, meeting with the Chief ALJ and only two weeks 

after her official retirement from the Coast Guard. In her written 

testimony for the July 31, 2007, hearing before the U.S. House of 

Representative’s Transportation and Infrastructure Committee’s 

Subcommittee on the Coast Guard and Maritime Transportation, 

ALJ Massey made the following statement: 

“Between July 2004 and August 2005, I came to 

know first hand that the administration of due 

process in S&R hearings at the Coast Guard was not 

a priority and NEVER (emphasis in original) to be 

a concern if its preservation would result in a ruling 

adverse to a position of the Coast Guard. In thirty 

years of experience, I have not come close to 

experiencing the level of arrogance and disrespect 

for due process that I experienced at the Coast 

Guard in the administration of its hearings. From 

Judge Ingolia all the way down to the newest IO 

[investigating officer], the environment was 

saturated with a total disregard for Mariner’s 

rights.” 

ALJ Massey’s statement depicts a flawed judicial system that does 

not provide justice to mariners. Her written testimony, as 

expressed in the May 9, 2007, affidavit and in conjunction with the 

July 31, 2007, congressional hearing, is inconsistent with the fact 

that she would allow the program to continue for over two years 

without notifying the appropriate authorities. ALJ Massey did not 

report her allegations to the Office of Inspector General, Special 

Counsel, the MSPB or the Commandant—all of whom have the 

authority to investigate, remediate, or take action regarding any 

alleged agency misconduct. Instead, she disclosed her allegations 

in the context of a multimillion dollar lawsuit against the Coast 

Guard filed by Mr. Morgan, a private attorney who had represented 

mariners in S&R proceedings before her. When asked why she 

chose to make her allegations public through Mr. Morgan, ALJ 

Massey stated that she initially had no intention of mentioning her 

concerns at all. She said she signed the affidavit for Mr. Morgan 

simply because Mr. Morgan asked her to sign it. 

The Coast Guard used the ABA’s 1990 Model Code as a guide for 

ALJs during ALJ Massey’s tenure as a Coast Guard ALJ, and it 

provides standards of ethical conduct for judges, including 

standards for when judicial misconduct, i.e., a violation of the 

Model Code, should be reported to an appropriate authority. The 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Model Code makes clear that judges “shall uphold the integrity and 

independence of the judiciary.”17 Further, a judge “shall not allow 

family, social, political or other relationships to influence the 

judge's judicial conduct or judgment.”18 In addition, the Model 

Code requires any judge “who receives information indicating a 

substantial likelihood that another judge has committed a violation 

of this Code should take appropriate action,” including but not 

limited to direct communication with the judge who has committed 

the violation and reporting the violation to the appropriate 

authority.19 When a judge receives actual knowledge of a 

violation of the Model Code, the judge is obligated to report the 

knowledge to the appropriate authority.20 

According to ALJ Massey’s affidavit, on December 9, 2004, she 

prepared a memorandum based on what ALJ Brudzinski said 

during lunch on December 7, 2004. In her affidavit, she stated that 

she prepared the memo because ALJ Brudzinski’s alleged remarks 

were such that she “knew” that ALJ Brudzinski was not an 

independent fact finder and that she worked under “a Chief Judge 

who would dare tell an ALJ how to rule in a case.” If true, these 

statements show that in December 2004 ALJ Massey believed that 

both the Chief ALJ and ALJ Brudzinski had committed judicial 

misconduct and violated the Model Code. ALJ Massey should 

have reported the matter to an appropriate authority. 

Although she did not report her allegations to an appropriate 

authority, ALJ Massey was not completely silent regarding the 

problems she felt existed within the Coast Guard ALJ program. 

She expressed her displeasure with some of Chief ALJ Ingolia’s 

actions in a series of memoranda she addressed to him. For 

instance, in a memorandum dated March 31, 2005, she wrote, “The 

timing of the [March 7, 2005 discovery] memorandum felt like an 

attempt to invade the domain of my judicial independence with 

respect to three proceedings where serious discovery issues 

were/are under consideration on the date of its issuance.” ALJ 

Massey followed up on April 4, 2005, with another memorandum 

in which she reiterated her feeling that the timing of the March 7, 

2005, Discovery Memorandum was an attempt to further invade 

the domain of her judicial independence and stated, “a reasonable 

mind could and I believe would see the ‘guideline’ memorandum 

17 Model Code, Canon 1 (1990). 18 Model Code, Canon 2(B).. 

19 Model Code, Canon 3(D)(1) and Comment to 3(D). 

20 Model Code, Canon 3(D)(1)(1990). 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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as your office’s attempt to pressure me into ruling a certain way in 

the three cases at issue.” ALJ Massey’s statements in these 

memoranda show that she felt she was being pressured to rule a 

certain way on discovery issues in 2005. However, her statements 

do not contain the specificity nor do they reflect the gravity of the 

allegations she made in her March 2007 affidavit. 

ALJ Massey was aware of an attorney’s general obligation to 

report a violation. She stated to us, “I mean every lawyer, at least 

the oath I took in the State of Texas is that if you are aware of 

another attorney violating the law, then you are under an 

affirmative obligation to report that.” We questioned ALJ Massey 

specifically about ALJ Brudzinski’s comment at the December 

2004 lunch and about an ALJ program attorney who worked with 

ALJ Brudzinski. ALJ Massey stated, “To the extent that she knew 

that Judge Brudzinski was going to rule a certain way because he’d 

been told to by Judge Ingolia, that means she was aware of a 

violation of law, and, as an attorney, she had a duty to report that, 

okay, just as a licensed attorney.” In addition, ALJ Massey 

mentioned that to the extent this attorney had not yet revealed the 

information, this attorney retained an obligation to report the 

information and said, “I mean, to this day, technically speaking, as 

an officer of the court, if she knew, she would have an obligation 

to tell somebody.” 

ALJ Massey’s statements reveal that she was aware of outlets to 

report ALJ Brudzinski and Chief ALJ Ingolia and that she 

understood the affirmative obligation to report such concerns. She 

acknowledged to us that she considered reporting her complaint to 

the Office of Special Counsel and noted that she probably could 

have spoken to one of the ALJ program staff attorneys who 

attended the lunch with her on December 7, 2004. She also noted 

that she tried to figure out if she could go directly to the MSPB 

with her complaint. We asked ALJ Massey whether she 

considered reporting her complaint to the Office of Inspector 

General or a State Bar organization, and she stated that she thought 

about those options. However, she did not report her concerns to 

anyone prior to giving her affidavit to Mr. Morgan. She told us 

that she felt like it was a fight she could not win because ALJ 

Brudzinski could deny he said it and the other people at the table 

could say that they did not remember. However, ALJ Massey’s 

concern over her ability to prove the validity of her allegations 

does not diminish her obligation to report her concerns. 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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ALJ Massey’s statements about her own obligations further 

contradict what she outlined to us as an obligation for any attorney 

and specifically for the ALJ program attorney that attended the 

December 7, 2004, lunch. ALJ Massey told us that she felt she had 

no reason to report ALJ Brudzinski’s alleged statement. She 

commented that it was “not [her] problem” and that she “had no 

dog in that fight.” She also said she did not see the need to get in 

the middle of what she thought was ALJ Brudzinski being used by 

Chief ALJ Ingolia. ALJ Massey told us that she took the situation 

only as a warning to be watchful of the environment and said, “It 

was wrong and I knew it, but I was taking that information in for 

my own purposes and evaluating what that told me about the 

environment that I was working in and which, in fact, got a lot 

worse right after that.” Describing the situation, she said, “That’s a 

serious charge to bring against somebody, you know. To me, it’s 

serious.” She went on to state, “It wasn’t like you’re trying to stop 

someone from getting shot or something and you have like a civic 

duty.” 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Appendix A 

Purpose, Scope, and Methodology 

We undertook this review at the request of the Vice Commandant, 

Coast Guard to assess the validity of allegations of bias in the 

Coast Guard ALJ program, particularly in connection with the 

adjudication of cases involving the suspension and revocation of 

merchant mariner documents and licenses. The Vice 

Commandant’s request, made at the urging of the Coast Guard’s 

Chief ALJ and all other active Coast Guard ALJ’s, stemmed from 

allegations of bias made by former Coast Guard ALJ Jeffie J. 

Massey. These allegations, contained in an affidavit submitted by 

the former ALJ, were submitted in two lawsuits filed against the 

Chief ALJ, another ALJ, and other career employees of the Coast 

Guard ALJ program. 

Our goal was to determine whether the allegations were 

meritorious. In particular, we sought to determine whether the 

Chief ALJ (1) directed subordinate judges to rule in favor to the 

Coast Guard, and (2) discussed desired outcomes in specific cases 

in ex parte communications with other ALJs and other employees. 

We interviewed ALJ program personnel who were employed with 

the program during ALJ Massey’s tenure at the Coast Guard. We 

interviewed ALJ Massey, on multiple occasions, both in our office 

and via telephone, the Chief ALJ, ALJ Brudzinski, and the former 

Director of Judicial Administration, and certain current and former 

docketing center employees and senior staff. We also interviewed 

all current and former ALJs during the operative time period with 

the exception of one ALJ who passed away shortly after we 

initiated this review. 

We interviewed Coast Guard personnel who appeared before ALJ 

Massey and others who provided support or oversight, including a 

number of investigating officers in District 8, supervisory 

investigating officers, and Coast Guard attorneys, both at District 8 

and at Coast Guard headquarters in Washington, DC. We also 

interviewed those who worked on the CDOAs for decisions of ALJ 

Massey that were appealed. In addition, we contacted 

representatives of the mariner community, including legal 

practitioners and members of mariner’s advocacy groups. 

We reviewed S&R decisions issued by ALJ Massey and 

underlying transcripts or recordings where available; related 

CDOAs; the transcript of the July 31, 2007, Congressional hearing 

and related materials; and correspondence between the Chief ALJ 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Appendix A 

Purpose, Scope, and Methodology 

and ALJ Massey, and with the docketing center, during the 

operative time frame, as well as other materials provided to us by 

ALJ Massey, by the docketing center, and others. We also 

reviewed other reference and legal materials. 

We did not undertake a wholesale evaluation of the S&R program. 

In addition, we did not evaluate (1) whether the ALJ program 

should be moved to the NTSB or otherwise removed from the 

Coast Guard; and (2) how the Coast Guard allocates resources and, 

in particular, whether it should assign attorneys to represent the 

Coast Guard in all suspension and revocation proceedings. 

However, information that we gathered during this review served 

as the basis for a companion report entitled, Recommendations to 

Improve the Coast Guard’s System for Adjudicating Suspension 

and Revocation Matters (OIG-10-107). In that report, we make 

recommendations to improve the effectiveness of the Coast 

Guard’s suspension and revocation adjudication process. 

We performed fieldwork from January 2009 through December 

2009 at the Coast Guard docketing center in Baltimore, MD and at 

Coast Guard headquarters in Washington, DC. 

Our review was conducted under the authority of the Inspector 

General Act of 1978, as amended, and according to the Quality 

Standards for Inspections issued by the President’s Council on 

Integrity and Efficiency 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Appendix B 

Management Comments to the Draft Report 

The Coast Guard declined to submit formal comments in response to our 

draft report. 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Appendix C 

Chronology of Relevant Events 

 

The key events surrounding ALJ Massey’s allegations of 

misconduct within the ALJ program occurred over a period of 

about 18 months, starting with ALJ Massey's interview for the 

Coast Guard ALJ position in February 2004 and ending with 

Hurricane Katrina in August 2005. In her affidavit in Dresser v. 

Ingolia, ALJ Massey cites several events that took place during her 

tenure as a Coast Guard ALJ to support her allegations. 

It is difficult to evaluate the significance of those events and 

whether they provide sufficient and credible support for her 

allegations without placing them within the larger context of 

related events that happened within the ALJ program and during 

ALJ Massey’s employment with the Coast Guard. We reference 

events from the following chronology throughout our report: 

December 15, 2003 

The Chief ALJ assigned USCG v. Dresser, a case on remand from 

the NTSB, to ALJ Brudzinski. Although the case arose out of 

Sector New Orleans, the New Orleans ALJ position was vacant at 

the time of the remand. Jeffie J. Massey would not join the Coast 

Guard for another seven months, but later alleged that the Chief 

ALJ should have assigned the case to her. 

February 2004 

Jeffie J. Massey applied for the Coast Guard ALJ position located 

in New Orleans, LA. Prior to submitting her application for this 

position, ALJ Massey worked for more than six years as an ALJ, 

first with the Social Security Administration and then with the 

Federal Energy Regulatory Commission (FERC). 

June 2004 

As part of the interview process, Jeffie J. Massey met Chief ALJ 

Ingolia at his Washington, DC office. When she arrived, Chief 

ALJ Ingolia was on the phone. According to her, Chief ALJ 

Ingolia told her that he was talking with ALJ Brudzinski. 

Additionally, she alleged that Chief ALJ Ingolia told her that from 

time to time, he and ALJ Brudzinski talk about active cases that 

ALJ Brudzinski is handling. 

June 2004 

The Coast Guard extended a job offer. Prior to officially joining 

the Coast Guard, ALJ Massey attended the annual Coast Guard 

ALJ Conference in Baltimore, MD. 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Appendix C 

Chronology of Relevant Events 

On or about July 11, 2004 

The Coast Guard hired ALJ Massey, and she began working in 

New Orleans, LA. The New Orleans ALJ presides over S&R 

hearings that arise out of the Coast Guard’s District 8, which is 

headquartered in New Orleans. Within the New Orleans ALJ’s 

geographic area of responsibility lies the Marine Safety Unit 

(MSU) located in Morgan City, LA. The Morgan City MSU 

generated the majority of ALJ Massey’s contested S&R cases. 

October 6, 2004 

Shortly after she began hearing Coast Guard cases, ALJ Massey 

issued an order in USCG v. McDonald that erroneously dismissed 

the Coast Guard’s complaint on the grounds that it was deficient as 

a matter of law. The Coast Guard planned to file an appeal, but the 

ALJ program convinced it not to do so because ALJ Massey 

corrected her ruling. 

October 22, 2004 

ALJ Massey sent an email message to the ALJ program’s Director 

of Judicial Administration in which she admitted her error in the 

McDonald matter and asked for assistance in understanding the 

law in her pending cases. Specifically, she asked that someone 

from the Chief ALJ’s office be assigned “to review the 

complaint/answer in each case, and prepare a short memo of law 

about the elements of the government’s case, any defenses the 

Respondent has raised, and refer [her] to any significant authorities 

[she] should be aware of in a particular case.” 

December 2004 

As early as December 2, 2004, the S&R program officials at Coast 

Guard headquarters began forwarding complaints that they 

received about ALJ Massey to the Chief ALJ’s office for further 

investigation. These complaints included allegations that ALJ 

Massey had an unprofessional demeanor and subjected Coast 

Guard investigating officers to “belittling attacks.” 

December 7, 2004 

During a break in the USCG v. Dresser hearing that ALJ Massey 

observed in New Orleans, ALJ Massey attended lunch with ALJ 

Brudzinski and two attorneys from the docketing center. In her 

affidavit in Dresser v. Ingolia, ALJ Massey states that during the 

lunch, ALJ Brudzinski discussed the testimony the respondent, 

represented by J. Mac Morgan, presented that morning. According 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Appendix C 

Chronology of Relevant Events 

to ALJ Massey, ALJ Brudzinski said that although he found the 

testimony compelling, if he ruled for Mr. Dresser, the Chief ALJ 

would have his job. No other attendee at the lunch recalled ALJ 

Brudzinski making that statement. 

December, 13, 2004 

ALJ Massey reopened USCG v. McDonald to correct her 

previously-issued ruling (see October 6, 2004) 

In late 2004 or early 2005 

Shortly after ALJ Massey’s December 7, 2004, lunch with ALJ 

Brudzinski, J. Mac Morgan, respondent’s counsel in both the 

Dresser matter, then pending before ALJ Brudzinski, and USCG v. 

Elsik, then pending before ALJ Massey, visited ALJ Massey at her 

office to file a pleading. ALJ Massey and Mr. Morgan had a 15 

minute conversation in her office during which Mr. Morgan 

discussed the Dresser matter. ALJ Massey witnessed Mr. 

Morgan’s representation of the respondent in this matter on 

December 7, 2004. During this conversation, Mr. Morgan also 

shared with ALJ Massey his allegation that the Coast Guard ALJ 

program was biased against Mr. Dresser. Mr. Morgan also 

referred ALJ Massey to a former Coast Guard ALJ who was 

critical of the ALJ program and who also testified at the July 2007 

congressional hearing. 

January 6, 2005 

In USCG v. Elsik, ALJ Massey granted the Motion for 

Interrogatories by respondent’s counsel, Mr. Morgan, in 

contravention of Coast Guard regulations and 33 CFR 20.601(d), 

which required certain showings to be made before the discovery 

motion could be granted, and 33 C.F.R. 20.309(d), which gave the 

Coast Guard the right to respond to the motion before it was 

granted. In addition, ALJ Massey did not follow 33 CFR 

20.603(e) because she gave the Coast Guard 15 days to respond to 

the interrogatories rather than the 30 days provided by this 

regulation. 

January 12, 2005 

In USCG v. Rogers, ALJ Massey granted respondent’s request for 

a subpoena in contravention of 33 CFR 20.608(a), 33 CFR 

20.601(d) and 33 CFR 309(d). Specifically, ALJ Massey granted 

the respondent’s request for a subpoena (1) without requiring the 

respondent to make a formal motion, (2) without making the 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Appendix C 

Chronology of Relevant Events 

necessary determination of fact, and (3) within 24 hours of 

receiving the request, which prevented the Coast Guard from 

having an opportunity to respond—all of which were in 

contravention of the Coast Guard’s discovery regulations. 

February 3, 2005 

In USCG v. Rogers, the Coast Guard refused to comply with the 

subpoena, arguing that it should not have to do so because ALJ 

Massey granted the subpoena improperly and in contravention of 

the Coast Guard’s discovery regulations. 

February, 24, 2005 

Members of the ALJ program’s senior staff met with Coast Guard 

S&R program representatives, including headquarters staff and 

district-level attorneys and investigating officers, to discuss the 

complaints about ALJ Massey’s conduct. The S&R program staff 

also invited an attorney from the Coast Guard’s Office of Maritime 

and International Law. ALJ Massey was aware of the complaints 

and was invited to the meeting by an ALJ program attorney, but 

she declined. Chief ALJ Ingolia did not attend the meeting. The 

ALJ program prohibited meeting participants from mentioning 

case names and prevented ALJ program staff involved in any of 

ALJ Massey’s pending matters from participating in the meeting. 

February 28, 2005 

A member of the ALJ program staff briefed ALJ Massey on the 

February 24, 2005, meeting. During their conversation, ALJ 

Massey determined that the investigating officers had discussed 

issues in cases that were still pending before her and she stated she 

abruptly terminated the conversation. 

March 7, 2005 

Pursuant to the advice of the ALJ program’s senior staff, Chief 

ALJ Ingolia issued a memorandum titled, “Guidelines for 

Discovery Requests” (the “March 7, 2005, discovery 

memorandum”) to all Coast Guard ALJs. According to ALJ 

program senior staff, one of the purposes of the memorandum was 

to correct ALJ Massey’s and the District 8 investigating officers’ 

misinterpretations and misapplications of the Coast Guard’s 

discovery regulations. 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Appendix C 

Chronology of Relevant Events 

March 15-17, 2005 

ALJ Massey exchanged email messages with the ALJ program’s 

senior staff attorney who was responsible for providing the Coast 

Guard ALJs with legal research, assistance and advice. ALJ 

Massey asked whether the Chief ALJ and the Director of Judicial 

Administration were directing the content of the legal advice ALJ 

Massey would be receiving. The senior attorney explained that the 

Chief ALJ was not involved in the provision of legal research to 

ALJs and that it was the individual ALJ’s decision whether to 

solicit or be guided by the staff attorney’s advice. 

March 21, 2005 

ALJ Massey received a legal research memorandum from an ALJ 

program legal intern regarding a legal issue in the Elsik matter. In 

the memorandum, the intern explained that dismissing the 

misconduct allegations in the matter would be improper and in 

contravention of well-settled Coast Guard law. 

March 22, 2005 

In USCG v. Elsik, ALJ Massey stated in a pre-hearing conference 

that she disagreed with binding Coast Guard precedent. Instead of 

following Coast Guard precedent, and in violation of 46 CFR 5.65, 

she relied on an opinion from the Ninth Circuit Court of Appeals. 

The Commandant would later reverse her decision on appeal. 

March 24, 2005 

ALJ Massey received a memo from an ALJ program staff attorney 

regarding an issue in the Rogers matter. In the memorandum, the 

staff attorney advised that dismissal of the Rogers matter with 

prejudice was an inappropriate sanction for the Coast Guard’s 

refusal to comply with the subpoena. However, the attorney 

advised that sanctions against the Coast Guard were warranted and 

referred ALJ Massey to the sanction authorized by 33 CFR § 

20.607(a). 

March 25, 2005 

ALJ Massey rejected the ALJ program staff attorney’s advice and 

dismissed the Rogers matter with prejudice as a sanction for the 

Coast Guard’s failure to comply with a subpoena ordered by the 

respondent and issued by ALJ Massey. On appeal, the Vice 

Commandant reversed ALJ Massey’s decision and held that she 

abused her discretion and exceeded her authority as an ALJ by 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Appendix C 

Chronology of Relevant Events 

dismissing the case with prejudice on the basis of the Coast 

Guard’s discovery violations. 

March 28, 2005 

The Director of Judicial Administration contacted ALJ Massey on 

the Chief ALJ’s behalf and arranged for ALJ Massey to meet the 

Chief ALJ in Baltimore, MD. 

March 31, 2005 and April 4, 2005 

ALJ Massey sent memoranda to Chief ALJ Ingolia stating that the 

March 7, 2005 Discovery Memorandum improperly infringed upon 

her judicial independence and was an attempt to pressure her into 

ruling in a certain way. In addition, in the March 31, 2005, 

memorandum, ALJ Massey stated that the Chief ALJ’s March 7, 

2005, Discovery Memorandum contained “flawed and/or puerile 

reasoning.” 

April 6, 2005 

In USCG v. Elsik, ALJ Massey dismissed the Coast Guard’s 

complaint with prejudice. Specifically, she relied on a Ninth 

Circuit decision, which was not binding precedent in this matter, to 

dismiss the Coast Guard’s misconduct allegations in contravention 

of well-settled Coast Guard law. She also dismissed the remaining 

negligence allegation as a sanction for the Coast Guard’s failure to 

comply with her discovery orders. On appeal, the Vice 

Commandant reversed ALJ Massey, holding that she 

(1) committed an error of law when she dismissed the misconduct 

allegations in contravention of the plain-language of the statute; 

(2) abused her discretion and committed an error of law when she 

dismissed the negligence allegation for a discovery violation; and 

(3) acted arbitrarily and capriciously by failing to follow the 

applicable discovery rules. 

April 8, 2005 

ALJ Massey met with Chief ALJ Ingolia and three members of his 

staff. Eventually, all but one of the staff members was asked to 

leave so that the Chief ALJ could have a more private conversation 

with ALJ Massey. Chief ALJ Ingolia told ALJ Massey that she 

was the cause of the problems in District 8. According to ALJ 

Massey, it was during this meeting that the Chief ALJ told her to 

always rule in favor of the Coast Guard. According to the Chief 

ALJ and the senior staff member present, the Chief ALJ did not 

say anything that could reasonably be construed as directing ALJ 

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Appendix C 

Chronology of Relevant Events 

Massey to rule in favor of the Coast Guard. Instead, they assert 

that the Chief ALJ only instructed her to follow Coast Guard’s 

regulations. 

May 31, 2005 

As a follow-up to the April 8, 2005, meeting, ALJ Massey sent 

Chief ALJ Ingolia a memorandum that stated her belief that the 

senior investigating officers’ complaints about her conduct and 

demeanor were without merit. She asserted that the complaints 

were personal attacks on her because of her adverse rulings and 

because of her gender. ALJ Massey requested that an independent 

investigation take place in order to clear her personal and 

professional reputation. 

Early summer 2005 

On or about July 21, 2005 

ALJ Massey called the former ALJ to whom she had been referred 

by Mr. Morgan. She discussed the assignment of the Dresser 

matter with this ALJ, erroneously stating that Chief ALJ assigned 

the Dresser matter to ALJ Brudzinski after ALJ Massey had been 

hired by the Coast Guard. In fact, the Chief ALJ assigned Dresser 

to ALJ Brudzinski in December 2003. 

August 26, 2005 

ALJ Massey presided over a hearing in USCG v. Boudreaux. In 

that hearing, the Coast Guard rested its case without calling any 

witnesses, as it had failed in its attempt to get ALJ Massey to 

reconsider her previous denial of its motion to have certain 

witnesses participate by telephone. In response, the respondent 

moved to dismiss the Coast Guard’s complaint. ALJ Massey 

granted the respondent’s motion from the bench and dismissed the 

complaint with prejudice based on the Coast Guard’s failure to 

present any evidence and thereby prove the facts in its complaint. 

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Appendix C 

Chronology of Relevant Events 

August 28, 2005 

Hurricane Katrina hit New Orleans, LA. The storm significantly 

interrupted Coast Guard operations in District 8. ALJ Massey did 

not preside over any S&R hearings or receive any new cases from 

August 2005 to her retirement in March 2007. 

November 29, 2005 

ALJ Massey issued the written decision in USCG v. Boudreaux. In 

her decision and order, just as in her May 31, 2005, memorandum, 

she accused the Coast Guard and a certain senior investigating 

officer of “demonizing” her by making false statements about her 

judicial demeanor. 

December 14, 2005 

January 29, 2006 

 

March 16, 2006 

 

June 2006 

July 2006

 ALJ 

Massey followed up with Mr. Morgan after he attempted to contact 

her. She tentatively agreed to meet with him 

Otherwise, she 

intended to continue to work as a Coast Guard ALJ. 

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Appendix C 

Chronology of Relevant Events 

July 2006-March 2007 

ALJ Massey engaged in monthly phone conversations with Mr. 

Morgan, who ALJ Massey said was inquiring about the status of 

her retirement request. 

March 3, 2007

 ALJ Massey 

retired from the Coast Guard. 

March 13, 2007 

ALJ Massey provided testimony to Mr. Morgan. Two weeks later, 

Mr. Morgan filed the Dresser v. Ingolia complaint against the 

Commandant, Chief ALJ Ingolia, and various Coast Guard and 

ALJ program employees. The allegations in the complaint are 

based largely on ALJ Massey’s testimony. 

May 9, 2007 

ALJ Massey signed an affidavit in the Dresser v. Ingolia matter 

based on her March 13, 2007, testimony. In the affidavit, ALJ 

Massey alleged that the Coast Guard’s ALJ program is biased 

against mariners and the Chief ALJ told her to always rule in favor 

of the Coast Guard. 

June 24 2007 

The Baltimore Sun used ALJ Massey’s affidavit and the Dresser v. 

Ingolia lawsuit as the basis for the first in a series of articles that 

questioned the integrity of the Coast Guard administrative law 

program. 

July 31, 2007 

Following the Sun article, the U.S. House of Representatives’ 

Transportation and Infrastructure Committee’s Sub-committee on 

Coast Guard and Maritime Transportation held a hearing regarding 

allegations of bias in the Coast Guard administrative law program. 

ALJ Massey testified at this hearing regarding her affidavit and 

allegations, as did a former Coast Guard ALJ to whom Mr. 

Morgan had referred to her. 

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Appendix D 

 

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Appendix D 

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Appendix D 
 

Appendix D 

Page 49
 
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Appendix D 
Appendix D 

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Allegations of Misconduct within the Coast Guard Administrative Law Judge Program
 

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Appendix E 

Major Contributors to this Report 

William J. McCarron, Chief Inspector 

Kimberley Cox, Inspector 

Christian Patton, Inspector 

Richard Reback, Counsel to the Inspector General 

René Rocque Lee, Assistant Counsel 

Adam Berlin, Assistant Counsel 
Appendix F 

Report Distribution 

Department of Homeland Security 

Secretary 

Deputy Secretary 

Chief of Staff 

Deputy Chief of Staff 

General Counsel 

Executive Secretariat 

Director, GAO/OIG Liaison Office 

Assistant Secretary for Office of Policy 

Assistant Secretary for Office of Public Affairs 

Assistant Secretary for Office of Legislative Affairs 

Chief Information Officer 

Chief Information Security Officer 

Coast Guard Audit Liaison 

Office of Management and Budget 

Chief, Homeland Security Branch 

DHS OIG Budget Examiner 

Congress 

Congressional Oversight and Appropriations Committees, as 

appropriate 

Allegations of Misconduct within the Coast Guard Administrative Law Judge Program 

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