Department of Homeland Security 

Office of Inspector General 

Recommendations to Improve the Coast 
 

Guard’s System for Adjudicating 
 

Suspension and Revocation Matters 
 

OIG-10-107 August 2010 
Office ofInspector General 

U.S. Department of Homeland Security 

Washington, DC 20528 

Homeland 

Security 

AUG 13 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 issues related to the Coast Guard's system for adjudicating 

suspension and revocation matters. It is based on interviews with current and former 

Coast Guard employees and officials, interviews with representatives of the mariner 

community, direct observations, and a review of applicable documents. 

The recommendations herein have been developed to the best knowledge available to our 

office, and have been discussed in draft with those responsible for implementation. We 

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

express our appreciation to all of those who contributed to the preparation of this report. 

£~~.~ Richard L. Skinner 

Inspector General 
Table of Contents
 


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

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

Results of Review ............................................................................................................... 4
 


The ALJ Program Needs to Review and Update Certain Policies and 
 

Procedures......................................................................................................... 5 
 

Recommendations................................................................................................... 9 
 

Management Comments and OIG Analysis ........................................................... 9 
 

The S&R Program Needs to Improve Training and Provide Consistent and 
 

Effective Legal Support to Investigating Officers.......................................... 12 
 

Recommendations................................................................................................. 14 
 

Management Comments and OIG Analysis ......................................................... 15 
 

The Coast Guard Needs to Issue Commandant Decisions on Appeal in a 
 

Timely Manner and Make the Decisions More Accessible to the Public....... 16 
 

Recommendations................................................................................................. 18 
 

Management Comments and OIG Analysis ......................................................... 18 
 

The Coast Guard Needs to Develop Formal Protocols to Prevent Improper 
 

Contacts Among Personnel in the ALJ Program, the Office of Maritime 
 

and International Law, and the Office of Investigations and Analysis........... 20 
 

Recommendations................................................................................................. 23 
 

Management Comments and OIG Analysis ......................................................... 23 
 

Appendices 

Appendix A: Purpose, Scope, and Methodology.......................................................25 
 

Appendix B: Management Response to Draft...........................................................27 
 

Appendix C: Major Contributors to this Report........................................................32 
 

Appendix D:...Report Distribution ..............................Error! Bookmark not defined.
 

Abbreviations 

ALJ Administrative Law Judge 

ALJIPP Administrative Law Judge Internal Procedures and Practices 

APA Administrative Procedure Act 

CDOA(s) Commandant Decision(s) on Appeal 

DHS Department of Homeland Security 

MSPB Merit Systems Protection Board 

OIG Office of Inspector General 

S&R Suspension and Revocation 
OIG
 
 Department of Homeland Security 

Office of Inspector General 

Executive Summary 

In October 2008, the United States Coast Guard requested that we 

assess the validity of a former Administrative Law Judge’s 

allegations of bias and misconduct in the Coast Guard’s 

Administrative Law Judge program, particularly in connection 

with the adjudication of cases involving the suspension and 

revocation of merchant mariner credentials. In January 2009, we 

initiated a review to determine whether the Chief Administrative 

Law Judge directed subordinate Administrative Law Judges to rule 

in favor of the Coast Guard and whether the Chief Administrative 

Law Judge’s senior staff engaged in an improper, ex parte meeting 

with Coast Guard attorneys and investigating officers. Our report, 

Allegations of Misconduct within the Coast Guard’s 

Administrative Law Judge Program (OIG-10-108), addressed the 

merits of the allegations. It did not contain any recommendations. 

While assessing the allegations, we reviewed the Administrative 

Law Judge program and the Coast Guard’s suspension and 

revocation administrative proceedings, and noted programmatic 

issues not directly related to the allegations that warranted 

management’s attention. The Administrative Law Judge program 

needs to review and update certain policies and procedures 

regarding the training, investigation, and discipline of 

Administrative Law Judges. The Coast Guard should also train 

and provide adequate legal support to its investigating officers. 

Commandant Decisions on Appeal need to be issued more timely 

and be more accessible to the public. Finally, the Coast Guard 

should establish guidelines governing interaction between staff 

handling prosecutorial and adjudicative functions. We are making 

11 recommendations to address these issues and to improve the 

effectiveness, integrity, and efficiency of both the ALJ program 

and suspension and revocation administrative proceedings. In its 

response to our draft report, the Coast Guard concurred with each 

recommendation. 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters 

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Background 

The Coast Guard’s Administrative Law Judge (ALJ) program is 

governed by the Administrative Procedure Act (APA) (5 U.S.C. § 

551 et seq.) and Coast Guard regulations. Typically, Coast Guard 

administrative proceedings focus on suspension and revocation 

(S&R) of merchant mariner credentials (46 U.S.C. Chapter 77); 

and assessment of class II civil penalties 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)).1 The 

purpose of the program is to provide a low-cost and timely method 

of helping to maintain safety in maritime operations. In general, 

the Coast Guard’s administrative proceedings are intended to be 

more informal, less expensive, and faster than regular court 

proceedings, while still providing fundamental due process to 

respondents. Accordingly, S&R proceedings are designed so that 

neither the Coast Guard nor the respondent needs legal 

representation to resolve the matters in dispute. Historically, S&R 

and class II civil penalty hearings represent only a very small 

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

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

assigns other ALJs to preside over administrative proceedings.2 

An ALJ must be an impartial finder of fact, free from the influence 

of the Coast Guard or any other person when hearing and deciding 

Coast Guard cases.3 Further, 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 and the ALJ renders a 

decision, that decision becomes the decision of the agency unless 

the decision is appealed.4 Either the respondent or Coast Guard 

investigating officers may appeal the ALJ’s decision by filing a 

notice of appeal with the ALJ program’s docketing center within 

30 days of 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.5 

The Coast Guard’s Office of Maritime and International Law 

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

1

 33 C.F.R. Part 20. 
 2

 33 C.F.R. § 20.201. See also 5 U.S.C. § 3105. 
 3

 33 C.F.R. § 20.206. 
 4 5 U.S.C. § 557(b).
 
 5

 33 C.F.R. §§ 20.1001 and 20.1003. 
 

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It reviews the record of the proceedings along with the appellate 

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

for review and signature by the Vice Commandant, who issues the 

decisions on the Commandant’s behalf. If an ALJ’s decision has 

not been appealed, the Commandant may still review it on his own 

initiative if there is a finding that the charge was proved.6 A 

respondent who disagrees with the Commandant’s decision may 

appeal the decision to the National Transportation Safety Board 

(NTSB).7

 An appeal from the NTSB can be made to an 

appropriate federal court of appeal.8 

The ALJ program, which is funded by but operates independently 

of the Coast Guard, has had three Chief ALJs since its inception in 

1948. The Chief ALJ has offices at Coast Guard headquarters in 

Washington, DC, and at the program’s docketing center in 

Baltimore, MD. The program operates field offices in Alameda, 

CA; Houston, TX; New Orleans, LA; New York, NY; Houston, 

TX; and Seattle, WA. One ALJ is assigned to Baltimore. The 

Director of Judicial Administration, also staffed at Coast Guard 

headquarters, serves as attorney advisor to the Chief ALJ and has 

broad management responsibility for the ALJ program. 

Day-to-day management of the ALJ program occurs at the 

docketing center. The docketing center, created in 1997, is staffed 

by a senior attorney, attorney advisors, paralegal specialists, and 

administrative assistants. Paralegal specialists manage the case 

docket and all filings associated with Coast Guard administrative 

proceedings. In addition, the staff helps parties file documents, 

maintains a system for tracking and monitoring the status of 

outgoing and archived files, issues ALJ assignments and notices on 

behalf of the Chief ALJ, and answers inquiries from parties and the 

public. The attorney advisors provide legal support and advice to 

ALJs upon request that have questions about rules, regulations, 

legal, and policy issues. The docketing center provides an initial 

orientation for ALJs; it does not provide any formal training for 

new ALJs. The docketing center assists the Chief ALJ and 

Director of Judicial Administration in carrying out periodic ALJ 

conferences that may include legal and procedural updates. 

Since 1999, the docketing center has assigned uncontested cases to 

ALJs on a rotational basis. Contested cases are generally assigned 

based on the location where the Coast Guard filed the complaint, 

i.e., whether a case is filed within an ALJ’s area of geographic 

6

 46 C.F.R. § 5.801.
 
 7 46 C.F.R. § 5.713; 49 C.F.R. Part 825; 49 U.S.C. § 1133(3). 
 8 49 U.S.C. § 1153
 


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responsibility. The docketing center also considers other factors in 

the case assignment process, such as whether the ALJ who would 

normally be assigned the matter has a particularly heavy workload 

or is scheduled for leave. 

The Coast Guard’s Office of Investigations and Analysis is 

charged with, among other things, policing the Nation’s waterways 

and helping to ensure safety at sea. Local investigating officers, 

who are generally not attorneys, represent the Coast Guard in S&R 

proceedings. Investigating officers are often responsible for 

investigating the charges against a mariner, drafting and filing the 

resulting complaint, and then prosecuting the matter before the 

assigned ALJ.9 Typically, investigating officers have no prior 

legal background and serve for only a few years before being 

rotated into a new position. Investigating officers have access to 

regional Coast Guard attorneys to assist them in the S&R 

proceedings when necessary, but as a practical matter, 

investigating officers rarely interact with the Coast Guard’s 

attorneys. Thus, the Coast Guard often is not represented by 

attorneys in contested administrative hearings. 

Results of Review 

Our report, Allegations of Misconduct Within the Coast Guard’s 

Administrative Law Judge Program (OIG-10-108), addressed the 

merits of several allegations by a former Coast Guard ALJ. While 

conducting our review, we identified certain actions the Coast 

Guard can take to improve the efficiency and effectiveness of its 

S&R proceedings, both at the initial hearing level and when on 

appeal. Specifically, both the ALJ program and the Office of 

Maritime and International Law, which handles appeals to the 

Commandant, need to update and formalize procedures and 

policies to increase transparency and to avoid the appearance of 

impropriety. In addition, the Coast Guard should improve its 

training of its investigating officers. Finally, the Coast Guard must 

take steps to isolate staff handling prosecutorial functions from 

staff handling adjudicative functions for administrative 

proceedings. We are making 11 recommendations to improve the 

efficiency and effectiveness of the Coast Guard’s administrative 

proceedings. 

9

 “Prosecuting” an S&R proceeding is an administrative process, not a criminal process. 

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The ALJ Program Needs to Review and Update Certain Policies 

and Procedures 

In the past few decades, the Coast Guard’s ALJ program has grown from a 

very small network of ALJs and support staff to a larger program that 

hears cases with an increasing level of complexity on behalf of multiple 

agencies. The program has also experienced turnover owing to the 

retirement of many more experienced ALJs. As a result, the Coast Guard 

should re-evaluate how it administers the program. Specifically, the 

program needs to review, update, and, if necessary, formalize its current 

policies and procedures, including but not limited to (1) developing a 

formal training program for ALJs; (2) developing formal procedures for 

investigating allegations of misconduct against an ALJ; (3) developing 

written guidance for the Chief ALJ to use when disciplining an ALJ; and 

(4) clarifying the extent of the Chief ALJ’s authority to issue policy 

guidance to subordinate ALJs and the means by which the Chief ALJ may 

do so. 

Training Program for Administrative Law Judges 

ALJ program officials maintain that because the Coast Guard hires 

only experienced ALJs, there is no need to conduct formal training 

for ALJs new to its S&R system. The officials believe that the 

laws and regulations governing S&R procedures are 

straightforward and easy to understand, and an experienced ALJ 

should already possess the skills to interpret the laws and to 

preside over an S&R hearing. Consequently, the ALJ program 

does not have a formal training program. It provides training in an 

ad hoc, informal manner upon request. 

However, S&R hearings are usually adversarial and neither party is 

usually represented by counsel. Over the past few years, the Coast 

Guard has employed some ALJs who had no prior maritime law 

experience or who were not familiar with the format of S&R 

hearings. Most Coast Guard ALJs were hired from the Social 

Security Administration’s ALJ program, where the proceedings are 

rarely adversarial. 

Most of the ALJs believe that formal training is not necessary. 

In addition, many experienced Coast Guard ALJs assert that 

because both the Coast Guard and the respondent often proceed 

without legal representation, the ALJ program expects that a Coast 

Guard ALJ has a heightened responsibility to develop the record 

and help the parties to the proceeding understand the law. This 

expectation according to the ABA Model Code of Judicial Conduct 

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(Model Code) which the ALJ program requires its ALJs to follow. 

The Model Code allows judges to make “reasonable 

accommodations” to ensure that unrepresented litigants are fairly 

heard.10 During the informal orientation of new Coast Guard 

ALJs, the Chief ALJ’s senior staff explains that an ALJ must 

compensate for the fact that the parties in an S&R proceeding are 

not required to have legal representation and, therefore, might not 

be able to present their case effectively. Coast Guard ALJs 

explained that they ask the parties questions to help develop the 

record, but they must not become an advocate for either party. 

However, the ALJ program does not provide the ALJs with any 

guidance regarding the extent to which they are expected to assist 

the parties in establishing facts on the record or in identifying the 

relevant law. 

The ALJ program would benefit from a formal training curriculum 

that provides instruction for new Coast Guard ALJs on the basics 

of maritime law, the purpose and format of S&R hearings, and the 

context of the hearings within the overall operation of the agency. 

In addition, to the extent that Coast Guard ALJs are expected to 

assist unrepresented parties, they should receive written guidance 

on the best way to provide this assistance in an unbiased and 

impartial manner. 

Investigating Allegations of Misconduct 

The Chief ALJ is tasked with investigating allegations of 

misconduct levied against ALJs and, although they are rare, the 

ALJ program does not have guidance to assist the Chief ALJ in 

performing an investigation. As a result, the Chief ALJ has 

conducted investigations of ALJs in an informal, ad hoc manner. 

In one investigation of an ALJ, the Chief ALJ delegated 

responsibility for assessing the initial complaints against the ALJ 

to senior staff. After an initial meeting to discuss the complaints, 

the Chief ALJ sent members of his senior staff to meet with the 

complainants, gather information about the complaints, and report 

their findings back to him. Subsequently, and without informing 

the Chief ALJ, a senior staff member who attended this meeting 

informally discussed the contents of the meeting with the ALJ 

under investigation. This could have jeopardized the investigation. 

Furthermore, the absence of formal guidance with respect to the 

investigation could have caused the ALJ program staff to dismiss 

the complaints against this ALJ without ascertaining their validity. 

The creation of formal guidelines or an investigating framework 

10 Rule 2.2, Comment 4, American Bar Association Model Code of Judicial Conduct (2007). 

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would enable the Chief ALJ to: (1) provide the ALJs under 

investigation with an opportunity to address the allegations lodged 

against them where appropriate; (2) maintain an accurate record of 

the fact-finding and decision-making for potential use in a 

disciplinary action; or (3) ensure that any and all allegations of 

misconduct are handled consistently and in accordance with an 

accepted set of guidelines. Moreover, formal guidance can provide 

advance notice to personnel about the Chief ALJ’s authority to 

investigate allegations against an ALJ and discipline the ALJ 

accordingly. 

Disciplining an Administrative Law Judge 

When the Chief ALJ determines that an ALJ has engaged in 

misconduct, the Chief ALJ has considerable discretion. He may 

choose to file a complaint against an ALJ before the Merit Systems 

Protection Board (MSPB) or he may choose not to initiate a formal 

disciplinary action against the ALJ and handle the matter 

informally. However, the ALJ program does not have any formal 

guidance applicable to this decision making process. A formal 

policy should address the rights and responsibilities of the Chief 

ALJ in this context and the options available to him. 

For example, one former Coast Guard ALJ had significant 

performance and misconduct-related issues during that ALJ’s 

tenure. However, this ALJ was only reprimanded informally. The 

Chief ALJ could have filed a complaint against the ALJ to the 

MSPB or formally documented some of the allegations of 

misconduct against this ALJ. Guidelines would have helped the 

Chief ALJ in the exercise of his discretion in this manner. The 

ALJ program should develop guidelines for how one files a 

complaint against an ALJ, and for what purposes, and for the Chief 

ALJ to follow when deciding whether and how to investigate 

complaints against an ALJ or take formal disciplinary action 

against an ALJ. These guidelines should enable the Chief ALJ to 

determine the propriety of an MSPB or other personnel-related 

disciplinary action. Such policies and procedures can make the 

factors that the Chief ALJ considers in his decision-making 

process more transparent. 

Authority of the Chief ALJ in Issuing Policy Guidance to the 

ALJs 

Pursuant to Coast Guard regulations and the Chief ALJ’s job 

description, the Chief ALJ has the authority to issue policy 

guidance to the other Coast Guard ALJs. Specifically, the Chief 

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ALJ has the authority to ensure “general compliance of 

subordinate ALJs’ decisions with agency rules and procedures,” to 

ensure that the penalties that ALJs impose are generally consistent 

and to develop and implement “policies and other guidance which 

has usage throughout the agency-wide ALJ program.”11 In 

addition, the Chief ALJ is tasked with training new and incumbent 

ALJs,12 reviewing the ALJs’ decisions to ensure that they comply 

with applicable law, and generally ensuring that the ALJs are 

performing their duties competently.13 

A former ALJ expressed concerns about how the Chief ALJ can 

and should implement guidance and to what extent Coast Guard 

ALJs are bound to follow such guidance. In the past, Chief ALJs 

issued guidance through ALJ Internal Procedures and Practices 

(ALJIPP). Judges were, and still are, required to follow all 

guidance issued in an ALJIPP. However, the ALJ program has not 

updated ALJIPPs on a regular basis, as the ALJIPPs have not been 

revised for years. Today, ALJ program personnel and several 

ALJs consider many ALJIPPs to be either obsolete or irrelevant. 

The current Chief ALJ distributes policy guidance primarily 

through policy memorandums rather than through ALJIPPs. He 

also sends other guidance to the ALJs in the form of memoranda 

that are not binding, such as legal updates and other information 

useful to ALJs. As a result, personnel must distinguish whether 

memorandums are either directive or instructive in nature. Failure 

to make the correct distinctions may result in an ALJ confusing 

non-binding guidance with binding policy. 

The ALJ program should create a single source of definitive policy 

guidance by reviewing its ALJIPPs and policy memorandums and 

consolidating all that are still relevant and current into a manual for 

ALJs. The ALJ program should clarify which ALJIPPs and policy 

memoranda are out of date and should no longer be used. The ALJ 

program should also state to what extent ALJs are required to 

follow each ALJIPP or policy memorandum. Additionally, to the 

extent practicable, the ALJ program should publish its policies on 

its website to make the S&R process more transparent to the 

public. Going forward, the ALJ program should develop a process 

for distributing future policy guidance to ALJs that includes a 

designated format for the guidance and a clear explanation of 

whether and to what extent it binds the ALJs. 

11 Chief ALJ Job Description. 

12 46 C.F.R. § 1.01-20(c)(3). 

13 See 46 C.F.R. § 1.01-20(c)(4). 

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Recommendations 

We recommend that the Chief Administrative Law Judge: 

Recommendation 1: Evaluate current procedures for training 

ALJs and create a formal training program. 

Recommendation 2: Develop formal written procedures for 

investigating allegations of misconduct against an ALJ. 

Recommendation 3: Create formal guidelines for the Chief ALJ 

to follow when deciding how or whether to discipline an ALJ. 

Recommendation 4: Revoke any obsolete policy guidance and 

consolidate current policy guidance into a manual. 

Recommendation 5: Develop a standard format for the issuance 

of policy guidance that establishes to what extent an ALJ is 

required to follow the guidance. 

Management Comments and OIG Analysis 

USCG’s Comments to Recommendation 1: 

The Coast Guard concurred with the recommendation. The Coast 

Guard acknowledged that many of these areas of law are complex 

and very specialized and many attorneys, even maritime attorneys, 

may not have had much exposure to the intricacies of the law and 

regulations. Currently, a copy of the ALJ Process Guide is 

provided to all ALJs and is posted on the website, 

Homeport.uscg.mil. The ALJ Program will create training aids 

and checklists that are consistent with Coast Guard statutes, 

regulations, Commandant Decisions on Appeal, and the 

Administrative Procedures Act, all of which will supplement the 

existing ALJ Process Guide. 

The curriculum will include general legal issues arising in 

administrative law practice and maritime law as enforced by the 

Coast Guard. Specifically, this includes vessel manning 

requirements, issuance of merchant mariner credentials, vessel 

operating requirements, drug and alcohol testing and fundamental 

navigation rules. The Coast Guard estimates completing new 

training aids and checklists by the end of 2010. 

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OIG Analysis: 

We concur with Coast Guard’s response. Although our 

recommendation is fairly broad, our results of review included two 

paragraphs dealing with unrepresented parties. While the Coast 

Guard addressed the matter of an ALJ’s maritime law experience, 

it did not address expectations of an ALJ with respect to 

unrepresented parties. The curriculum should include these 

matters. 

This recommendation is Resolved – Open. 

USCG’s Comments to Recommendation 2: 

The Coast Guard concurred with the recommendation. The ALJ 

program will create formal written guidance for the 

Chief ALJ to follow when investigating an ALJ. The ALJ 

Program published procedures for filing a complaint against an 

ALJ on Homeport (homeport.uscg.mil) and follows the Coast 

Guard's Administrative Investigations Manual. The Coast Guard 

will consider both when implementing this recommendation. The 

Coast Guard estimates completing new written procedures by 

Spring 2011. 

OIG Analysis: 

We concur with the Coast Guard’s response. Currently, the 

homeport website includes a mailing address for complaints, but 

does not explain the procedures the Coast Guard uses to investigate 

those complaints. The Coast Guard responded that it will consider 

its service-wide investigations manual as it creates formal written 

guidance to address this recommendation. The investigation 

manual is a comprehensive guide for administrative and formal 

investigations that should provide a suitable foundation for ALJspecific procedures. 

This recommendation is Resolved – Open. 

USCG’s Comments to Recommendation 3: 

The Coast Guard concurred with the recommendation. It pointed 

out that other than a minor reprimand or minimal suspension, the 

Chief ALJ does not directly discipline an ALJ, but can only 

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recommend a sanction to the MSPB. The degree of discipline 

(suspension or termination) is a matter for MSPB to decide. The 

Coast Guard’s formal guidelines will address "whether" 

an ALJ should be disciplined. The Coast Guard estimates 

completing the guidelines by Spring 2011. 

OIG Analysis: 

We concur with the Coast Guard’s response. In its response, the 

Coast Guard explained how the Chief ALJ has limited authority to 

discipline and how he can only recommend a sanction to the 

MSPB. Nevertheless, the Coast Guard also explained how it can 

issue a minor reprimand or minimal suspension. We do not assert 

that the Chief ALJ or Coast Guard can take action that is within the 

authority of the MSPB. Instead, the Coast Guard should describe 

the process and options available to the Chief ALJ when a series of 

facts may lead to action against an ALJ. A minor reprimand or 

suspension do not require MSPB action, but are still forms of 

discipline and should be included in the guidelines. The process 

could identify certain benchmarks or decision points during or at 

the conclusion of an investigation. Those decisions could include 

a minor reprimand, referral to the MSPB, or closure of the 

investigation in appropriate circumstances. 

This recommendation is Resolved – Open. 

USCG’s Comments to Recommendation 4: 

The Coast Guard concurred with the recommendation. The Coast 

Guard commented that the ALJ program initiated this task in 2008 

and it is partially complete. It cancelled the majority of obsolete 

policy documents and guidelines in 2009. It will update, 

consolidate, cancel, revoke or replace remaining policy documents 

using the new method proposed for issuing new policy guidance. 

The Coast Guard estimates completing this task by the end of 

2010. 

OIG Analysis: 

We concur with the Coast Guard’s response. In its action plan, the 

Coast Guard should update the OIG on its progress in updating 

policies. 

This recommendation is Resolved – Open. 

USCG’s Comments to Recommendation 5: 

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The Coast Guard concurred with the recommendation. It 

commented that the ALJ program is already in the process of 

developing a standard format for issuing of policy guidance to the 

ALJ s and staff that is consistent with OMB Guidance Policy. The 

Coast Guard estimates it will implement this recommendation by 

the end of 2010. 

OIG Analysis: 

We concur with the Coast Guard’s response. In its response, the 

Coast Guard did not distinguish between mandatory policy and 

“guidance” but should make this distinction. For example, the ALJ 

Program could define mandatory guidance/policy as matters 

involving judicial administration, management, personal conduct, 

and ethics. Each of these subjects may be within the Chief ALJ’s 

discretion. It could distinguish such mandatory guidance or policy 

from memoranda that provide legal updates and developments or 

procedural guides which summarize the law. Most important: 

when guidance from the Chief ALJ is never truly binding, and only 

guidance by the Commandant is, then the Coast Guard should 

make that fact clear. 

This recommendation is Resolved – Open. 

The S&R Program Needs to Improve Training and Provide 

Consistent and Effective Legal Support to Investigating Officers 

In addition to executing the Coast Guard’s mission of policing the 

Nation’s waterways, some Coast Guard officers perform the temporary 

duty of investigating officers. Investigating officers draft and file 

complaints against mariners and represent the Coast Guard in S&R 

proceedings. Most investigating officers are not attorneys and may not 

receive sufficient formal training to navigate more complex regulations 

and proceedings adequately. Further, the investigating officers may not 

have sufficient legal support in situations where it would be useful or 

necessary, such as in complex cases or in cases wherein the respondent is 

represented by counsel. Moreover, because the investigating officers are 

rotated out of their positions after only a few years, very few have either 

the opportunity or the incentive to gain a high level of expertise in 

prosecuting S&R cases. 

In 2008, the Coast Guard established the Suspension and Revocation 

National Center of Expertise to alleviate some of these problems by, 

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among other methods, providing investigating officers with training and 

legal support. Given the scope of our review, we did not examine whether 

the Center has sufficient resources to meet the investigating officers’ 

needs. Moreover, several investigating officers told us that they were 

unaware of the resources available to them from the Center. 

Investigating Officers Need More Training in Their 

Prosecutorial Role 

The initial orientation and formal training for investigating officers 

consists of an approximately 3-week course that not all 

investigating officers complete before they begin representing the 

Coast Guard in S&R proceedings. An investigating officer told us 

that it was common for new investigating officers to begin 

handling S&R matters before they attended the formal orientation 

and training program. As a result, the Coast Guard relies on onthe-job training to prepare some investigating officers. The 

content and quality of this training varies from district to district, 

which could cause the Coast Guard’s S&R program to be enforced 

inconsistently. In addition, there are few advanced training 

courses in S&R litigation skills for senior or more experienced 

investigating officers seeking to refine or refresh their skills. 

Investigating Officers Should Have Access to Additional Legal 

Support 

Most investigating officers are not licensed attorneys and thus 

cannot be expected to handle all legal issues that arise. Even with 

sufficient training in S&R proceedings, investigating officers may 

not be able to represent the Coast Guard at S&R hearings 

effectively, enter evidence into the record competently, and argue 

points of law correctly or persuasively in every case. For the 

purposes of its marine safety operations, the Coast Guard divides 

the country into nine geographic districts. These districts are 

further divided into sectors, which are further divided into smaller 

geographic areas under the jurisdiction of marine safety units. 

S&R matters are prosecuted by the investigating officers at the 

marine safety units. However, legal support for these matters is 

only available at the district level. While investigating officers 

have access to the Coast Guard’s attorneys, these attorneys are 

often too far removed from the investigating officers, both 

geographically and in the Coast Guard hierarchy. Thus, the 

investigating officers may not always seek attorney assistance, 

either because they are not aware of when to ask for legal support 

or because they do not feel comfortable seeking assistance outside 

of their chain of command. In addition, S&R proceedings 

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represent a small percentage of the Coast Guard attorneys’ 

responsibilities, both on the district level and in headquarters. 

Therefore, attorneys may not always be able to give investigating 

officers the assistance they need, particularly in cases involving 

complex factual or legal issues or in which the mariner is 

represented by counsel. 

Although the Center is designed, in part, to provide additional legal 

support to the investigating officers, the officers told us they were 

not aware of the resources available to them through the Center. 

The Coast Guard should make better use of the Center to provide 

investigating officers additional legal support. With sufficient 

available staff, the Center could help ensure that investigating 

officers interpret Coast Guard law and policy and implement the 

S&R program consistently throughout the Nation. It could also 

help meet some of the investigating officers’ training needs. The 

Center could generate training materials, such as manuals and 

courses, to ensure that investigating officers nationwide have 

access to uniform and consistent guidance and legal advice. 

The Coast Guard’s sectors and marine safety units should 

encourage investigating officers to interact with the Center as 

needed, and the Center should initiate communication with the 

senior investigating officers in each district to assess the legal 

needs of the investigating officers. It should work to meet those 

needs and increase its staff as necessary to provide effective 

support. 

The Coast Guard rotates investigating officers out of the S&R 

program every few years, just as they are gaining the expertise to 

represent the Coast Guard effectively at S&R hearings. Although 

we have not fully studied the effect of the loss of qualified 

investigating officers on S&R proceedings, this issue warrants 

attention. 

Recommendations 

We recommend that the Commandant instruct the Office of 

Investigations and Analysis to: 

Recommendation 6: Administer a formal orientation and training 

course that investigating officers complete before handling S&R 

cases. 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 

Page 14
 
Recommendation 7: Make available or require, if necessary, 

ongoing or advanced skills training for investigating officers who 

seek or need to improve their prosecutorial skills. 

Recommendation 8: Promote the use of the Center of Expertise 

to ensure that investigating officers have access to training and 

legal support. 

Management Comments and OIG Analysis 

USCG’s Comments to Recommendation 6: 

The Coast Guard concurred with the recommendation. It plans to 

modify its policy to ensure investigating officers that present cases 

before an ALJ have completed the S&R Hearing Personnel 

Qualification Standard (which requires attendance of the existing 

S&R course), or are directly assisted by an investigating officer 

with such qualification who is sitting second chair at the S&R 

hearing. 

OIG Analysis: 

We concur with the Coast Guard’s response. In its action plan, the 

Coast Guard should update the OIG on the implementation of this 

policy. 

This recommendation is Resolved – Open. 

USCG’s Comments to Recommendation 7: 

The Coast Guard concurred with the recommendation. The Office 

of Investigations & Casualty Analysis will work with the S&R 

National Center of Excellence to assess needs of the program. The 

Coast Guard expects to complete this assessment in 24 months. 

The Marine Investigations program is in the last year of a multiyear effort to add civilian and military billets to ensure that there 

are enough investigating officers in the field to handle the 

workload. Until this is complete, the Coast Guard is focusing on 

providing basic training to the officers. The S&R National Center 

of Excellence is almost fully operational and will provide the 

specialized expertise for complex cases. 

OIG Analysis: 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters 

Page 15 
We concur with the Coast Guard’s response. In its action plan and 

subsequent updates, the Coast Guard should keep the OIG apprised 

of the status of its assessment of the Marine Investigations 

program. 

This recommendation is Resolved – Open. 

USCG’s Comments to Recommendation 8: 

The Coast Guard concurred with the recommendation. It noted 

that the Center is now fully functioning and assisting investigating 

officers with S&R proceedings. The staff is well-versed in the 

laws, regulations and Coast Guard policy which govern the S&R 

process and administrative hearing proceedings. More 

importantly, they are a dedicated resource to assist Investigating 

Officers with the S&R process and administrative hearing 

procedures. There are currently four members on staff at the 

Center, including one attorney and they are in the process of 

bringing on three additional staff (to include an additional 

attorney). To ensure investigating officers are aware of this 

resource, the Office of Investigations & Analysis has published 

multiple announcements regarding the availability and functions of 

the Center. Center staff present briefings at all investigating 

officer, S&R and Sector Department Head courses located at the 

Coast Guard Training Center Yorktown, VA. The staff also 

provides instruction to investigating officers on the S&R process 

and hearing procedures during all S&R courses. 

OIG Analysis: 

We concur with the Coast Guard’s response. 

This recommendation is Resolved – Closed. 

The Coast Guard Needs to Issue Commandant Decisions on 

Appeal in a Timely Manner and Make the Decisions More 

Accessible to the Public 

Through CDOAs, the Commandant exercises adjudicative and policymaking authority and creates binding precedent for ALJs to follow when 

deciding S&R cases. Because of the important role that CDOAs play in 

S&R proceedings, the Coast Guard needs to issue the decisions in a timely 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters 

Page 16 
and accessible manner, such that parties who are not represented by 

counsel can locate Coast Guard case law easily. 

The Coast Guard Needs to Issue Commandant Decisions on 

Appeal in a Timely Manner 

The Commandant exercises considerable adjudicative and policymaking authority with respect to S&R proceedings through 

CDOAs. Therefore, it is imperative that the Commandant issue 

these decisions in a timely manner. The timely issuance of 

CDOAs may prevent an ALJ from repeatedly issuing erroneous 

decisions based on a single misunderstanding of Coast Guard law 

and regulations. Timely issuance of CDOAs could ensure that 

mariners receive consistent interpretations of maritime regulations 

across all Coast Guard districts, the judicious resolution of disputes 

affecting their livelihood, and due process under the law. 

The Commandant has taken up to three years to issue appeals 

decisions, a fact that could have led to at least one ALJ making the 

same errors of law repeatedly. Coast Guard officials cited several 

reasons for the delays, including increased demands on the Coast 

Guard since September 11, 2001, recent lawsuits affecting the ALJ 

program and the Office of Maritime and International Law, and 

other, more pressing matters that often consume the time of the 

attorneys who handle Coast Guard appeals. The S&R program 

represents only a small percentage of the Coast Guard’s missionrelated activities and, accordingly, only a small part of the duties of 

the attorneys in the Office of Maritime and International Law and 

the Office of the Judge Advocate General. 

The timeliness of the S&R appeals process and CDOAs will not 

improve without either making them a higher priority or dedicating 

additional resources to prevent recurring backlogs. 

Commandant Decisions on Appeal Should Be Readily 

Accessible to the Public 

Although the Coast Guard’s S&R proceedings are designed such 

that the parties do not need the assistance of counsel, as a practical 

matter, unrepresented mariners cannot easily access CDOAs, 

which are binding Coast Guard case law. Given the increasing 

complexity of S&R proceedings and the fact that mariner’s 

livelihoods are at stake, CDOAs should be readily accessible to the 

public. 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 

Page 17
 
 

The CDOAs are accessible through Westlaw, an online legal 

research service used primarily by attorneys and legal 

practitioners, and through the Coast Guard’s website, 

“Homeport.”14 The Coast Guard publishes both ALJ decisions and 

CDOAs on its website. However, the decisions are organized only 

by the year of issuance and identified by the respondent’s last 

name or an assigned number. As a result, to find relevant legal 

precedent, a respondent must already know the date the decision 

was issued, its case name, and—because it is not provided on the 

Coast Guard’s website—the subject matter of the opinion. The 

Coast Guard’s website does not allow users to search all decisions 

by topic, keyword, or phrase. The website is ineffectual as a 

means for providing access to Coast Guard decisions to 

unrepresented mariners. The Coast Guard should create a publicly 

available database of ALJ decisions and CDOAs that is organized 

or searchable by topic or keywords. 

Recommendations 

We recommend that the Commandant: 

Recommendation 9: Take steps to decrease the length of time 

required to issue CDOAs. 

Recommendation 10: Create a database of CDOAs and ALJ 

decisions in which the public can use a topic or key word to locate 

relevant Coast Guard precedent. 

Management Comments and OIG Analysis 

USCG’s Comments to Recommendation 9: 

The Coast Guard concurred with the recommendation. The Coast 

Guard noted that in 2007 it had a backlog of 20 cases which took 

an average of 28 months to resolve. Presently, the Coast Guard 

has 9 cases, with an average resolution of 16 months. The Coast 

Guard is working to reduce its inventory and the time required to 

resolve cases. With the exception of extremely complex and 

unusual cases, its goal is to process every appeal in 6 months or 

less. 

OIG Analysis: 

14 http://homeport.uscg.mil/. 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 

Page 18
 
We acknowledge the Coast Guard’s progress in reducing the 

backlog of cases and the time to resolve them. The Coast Guard 

endeavors to process cases in 6 months—a reasonable goal—but it 

did not describe in its response what specific steps it has taken or 

plans to take to decrease the length of time required to issue 

CDOAs. In its action plan, the Coast Guard should describe how it 

is working to improve the processing of CDOAs. 

This recommendation is Resolved – Open. 

USCG’s Comments to Recommendation 10: 

The Coast Guard concurred with the recommendation. The Coast 

Guard continues to explore additional methods to provide the 

public more meaningful access to CDOA and ALJ decisions, 

subject to the availability of resources. Currently, the Coast Guard 

is actively exploring resources and computer technology that is 

available or required to implement the functionality of key word or 

topic search of CDOAs and ALJ decisions. Given the multifaceted legal review process coupled with the complexity of 

computer technology options available, the Coast Guard expects to 

implement this recommendation in 24 months (June 2012). 

OIG Analysis: 

We concur with the Coast Guard’s response. In its action plan and 

subsequent updates, the Coast Guard should keep the OIG apprised 

of its progress in developing the database with this search 

capability. 

This recommendation is Resolved – Open. 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters 

Page 19 
 

 

The Coast Guard Needs to Develop Formal Protocols to Prevent 

Improper Contacts Among Personnel in the ALJ Program, the 

Office of Maritime and International Law, and the Office of 

Investigations and Analysis 

The APA prohibits certain contacts between agency employees who 

perform adjudicative functions, such as ALJs, and those who perform 

either investigating or prosecutorial functions, such as investigating 

officers. Specifically, “an 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.”15 

With regard to its S&R proceedings, the Coast Guard has no formal rules 

or procedures governing interaction between staff responsible for 

adjudicative functions i.e., the ALJ program and the appellate staff in the 

Coast Guard’s Office of Maritime and International Law i.e., and staff 

responsible for investigating and prosecutorial functions (the Office of 

Investigations and Analysis). Nor does the Coast Guard have any formal 

rules concerning contact between the ALJ program and the appellate staff 

at the Office of Maritime and International Law. As a result, the Coast 

Guard has no policies to ensure that no improper contacts, i.e., contacts 

that either violate the APA or create an appearance of impropriety within 

its S&R adjudication process, take place among personnel in the ALJ 

program, the Office of Maritime and International Law, and the Office of 

Investigations and Analysis. Although we are unaware of any intentional 

improper contact between members of these offices, the absence of formal 

rules might lead to unintentional improper contacts and allow appearances 

of impropriety even where none exists. 

For example, on February 24, 2005, a meeting was held in New Orleans to 

hear allegations by local investigating officers that an ALJ was engaging 

in judicial misconduct. In attendance were members of the Chief ALJ’s 

senior staff, who were charged with investigating the allegations; members 

of the Office of Investigations and Analysis, including local Coast Guard 

attorneys and investigating officers, who had cases pending before the 

ALJ; and an appellate attorney from the Office of Maritime and 

International Law, who was there, among other reasons, to act as a subject 

matter expert on S&R rules and procedures. Although the participants 

agreed not to talk about pending cases by name and to focus merely on the 

issues, as a practical matter, they knew that they were talking about a 

particular ALJ and a limited number of cases. The appellate attorney 

15 5 U.S.C. § 554(d). 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 

Page 20
 
might have been able to identify a particular case in the future, had it 

reached the Office of Maritime and International Law on appeal. 

In addition, one of the members of the Chief ALJ’s senior staff reported to 

the ALJ who was the subject of the misconduct allegations about the 

matters discussed at the meeting. This conversation between the senior 

staff member and the ALJ caused the ALJ to believe that the investigating 

officers (1) discussed issues in the ALJ’s pending cases and (2) were 

seeking to have the ALJ disciplined because of her rulings in those cases. 

Formal procedures governing interaction between the Chief ALJ, the 

Office of Investigations and Analysis, and the Office of Maritime and 

International Law likely would have prevented this inadvertent improper 

contact and would have given the ALJ guidance to assess the propriety of 

any such contact. 

In addition, the Office of Maritime and International Law did not have any 

formal procedures or rules that would have prevented the appellate 

attorney from attending the meeting—at which the Office of 

Investigations and Analysis complained about the ALJ’s rulings and 

conduct, but not the merits or names of cases—and from further 

participating in the appeals of the ALJ’s decisions. The attorney’s further 

participation in this ALJ’s decisions on appeal was problematic. The 

Coast Guard asserts that because each CDOA underwent multiple levels of 

review after the attorney’s initial involvement in drafting the decisions, 

her attendance at the meeting had no effect on the outcome of the CDOAs. 

The attorney stated that she did not recognize the matters discussed when 

they appeared before her on appeal, because only general issues were 

discussed at the meeting and no specific cases were identified. Although 

There was no evidence that the appellate attorney’s attendance at the 

meeting changed the outcome of the CDOAs with respect to any 

respondent, the attorney’s participation in drafting the CDOAs, at a 

minimum, created an appearance of impropriety. 

Although not improper, Office of Maritime and International Law also has 

provided training to the Office of Investigations and Analysis. 

Specifically, the appellate attorney who attended the February 24, 2005 

meeting also provided training on S&R procedures to the investigating 

officers as part of a class taught at the Coast Guard Training Center in 

Yorktown, VA. The Coast Guard has since stopped the practice of 

allowing Office of Maritime and International Law attorneys who work on 

CDOAs to train investigating officers at Yorktown. 

However, the Office of Maritime and International Law staff’s dual role as 

experts who provide legal advice to various Coast Guard components and 

appellate attorneys who draft opinions for the Commandant is such that an 

improper contact could occur. For example, without clear guidance to the 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 

Page 21
 
contrary, an employee who serves in an investigating or prosecutorial 

function could solicit advice from an Office of Maritime and International 

Law attorney who might eventually be involved on the same matter in an 

adjudicative function. Although CDOAs are a means for the Commandant 

to issue policy and, as such, the Coast Guard may need to involve its 

policy experts in drafting CDOAs, formal rules are needed to prevent 

Office of Maritime and International Law attorneys who serve in this dual 

function from engaging in improper contacts with the Coast Guard’s 

investigating and prosecutorial staff. 

The ALJ program, the Office of Maritime and International Law, and the 

Office of Investigations and Analysis should create formal procedures that 

govern their staff’s interaction with each other with regard to pending 

matters or matters that are likely to be appealed. The procedures should 

address (1) the permissibility of a member of one office providing training 

to another office and (2) the ability of staff in the Office of Investigations 

and Analysis to have contact with either the ALJ program or the appellate 

attorneys at the Office of Maritime and International Law relating to 

matters pending or likely to be pending before either an ALJ or the 

Commandant, respectively. 

In May 2008, in response to a lawsuit in federal district court alleging that 

ex parte contacts took place in conjunction with the February 24, 2005, 

meeting, the Office of Maritime and International Law created and 

implemented “Business Rules for Coast Guard Suspension and Revocation 

and Civil Penalty Appeal Programs.” The goal of the rules is “to 

maximize the ability of appeal opinion drafters and decision makers to 

remain as impartial as possible while ensuring Coast Guard program 

offices are able to seek and receive timely, comprehensive and pertinent 

legal advice.” 

We concur with both the intent and content of the rules. Had they been in 

existence earlier, many of the allegations of the former ALJ would have 

been mitigated. These or related rules should be implemented through 

established Coast Guard procedures to cover all offices involved in the 

adjudication and prosecution of S&R matters and distributed to all 

relevant staff, including but not limited to employees in the Judge 

Advocate General’s Office, the Office of Maritime and International Law, 

the ALJ program, and the Office of Investigation and Analysis. The 

establishment, expansion, and dissemination of the rules would facilitate 

better understanding among the various components of the S&R program 

and provide clear guidance on permitted contacts and interactions. 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 

Page 22
 
Recommendations 

We recommend that the Commandant: 

Recommendation 11: Develop formal procedures governing 

interaction between personnel in the ALJ program, the Judge 

Advocate General’s Office, and the Office of Investigations and 

Analysis. The procedures should address (1) training provided by 

one office to another office; (2) the ability of investigators, 

attorneys, and staff involved in the investigation and prosecution of 

S&R matters to contact the ALJ program and the Office of 

Maritime and International Law; and (3) the ability of the ALJ 

Program and the Judge Advocate General’s Office to communicate 

about appropriate issues of concern to each office. 

Management Comments and OIG Analysis 

USCG’s Comments to Recommendation 11: 

The Coast Guard concurred with the recommendation. In its 

response, the Coast Guard stated it believes that the Office of 

Maritime and International Law's business rules put in place in 

May 2008 address much of this concern and will prevent situations 

that would create any appearance of impropriety. However, the 

Coast Guard intends to pursue transferring the function of drafting 

CDOAs from the Office of Maritime and International Law to 

another, neutral office with little or no responsibilities in advising 

the S & R program. We expect this transfer of responsibility to 

occur within 12 months. 

OIG Analysis: 

We support the Coast Guard’s plans to transfer the responsibility 

of drafting CDOAs from the Office of Maritime and International 

Law. However, we do not concur that the Business Rules, as 

constituted, sufficiently address our recommendation. Our 

recommendation seeks more formal, binding guidelines that affect 

the Office of Maritime and International Law, the S&R program, 

and the ALJ program and specifically prescribe their respective 

roles and their ability to share information. 

The Business Rules provide a good foundation for the Office of the 

Judge Advocate General and, consistent with the law, they attempt 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 

Page 23
 
to prohibit discussions about active cases. For example, Rule 2 

prohibits discussions about active cases and facts. Rule 3 prohibits 

covered attorneys from providing guidance to the Staff Judge 

Advocate, field level attorneys and program staff with regard to a 

specific case. Rule 5 attempts to limit contact with ALJs to avoid 

the appearance of impropriety. 

However, the Business Rules do not apply to all offices involved in 

the adjudication and prosecution of S&R matters. The Business 

Rules state that they are “best practices” and are applicable solely 

to the Office of Maritime and International Law. They do not 

serve to address any of the three criteria we explicitly mentioned in 

the recommendation related to training, the ability to contact the 

ALJ program, and the ALJ program and the Judge Advocate 

General’s Office ability to communicate about appropriate issues 

of concern to each office. 

Although everyone has an obligation to avoid impropriety and ex 

parte contacts, a more formal and carefully crafted policy could 

prevent larger problems. 

This recommendation is Unresolved – Open. 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 

Page 24
 
Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 


Page 25
 


Appendix A 

Purpose, Scope, and Methodology 

Our review of allegations by a former Coast Guard ALJ resulted in 

two reports. Our first report, Allegations of Misconduct Within the 

Coast Guard Administrative Law Judge Program, OIG-10-108, 

addressed the merits of the allegations and did not contain any 

recommendations. During the course of that review, we reviewed 

the ALJ program and the Coast Guard’s S&R administrative 

proceedings, and noted issues not directly related to the allegations 

that warranted management’s attention. This report makes 

recommendations to address those issues and improve the 

effectiveness, integrity, and efficiency of both the program and 

S&R administrative proceedings. 

We evaluated the ALJ program’s methods and procedures and 

certain aspects of how the Coast Guard prosecutes S&R matters 

and handles appeals to the Commandant. We reviewed many 

CDOAs, including all CDOAs on the former ALJ’s cases. We also 

reviewed documents, case law, email messages, internal 

memoranda, and other documents. We interviewed current and 

former ALJs, ALJ program staff, and a number of Coast Guard 

personnel who were involved in the S&R administrative process. 

We also spoke with members of the mariner community and 

related legal practitioners. Those conversations and our review of 

documents enabled us to understand aspects of the Coast Guard’s 

S&R administrative proceedings and supplied a context in which 

to make recommendations for its improvement. However, we did 

not conduct a full inspection of the S&R adjudication system or 

evaluate its overall performance. 

We acknowledge that each sector is composed of unique 

demographics and mariner communities, and that some S&R 

programmatic policies and procedures affect sectors differently. 

Because this report grew out of our review of the former ALJ’s 

allegations, our scope was limited. We focused much of our 

attention on evidence derived from Sector New Orleans and the 

Marine Safety Unit in Morgan City, Louisiana. Sector New 

Orleans processes more S&R matters than any other region. Our 

recommendations are intended to enhance the Coast Guard’s 

system for adjudicating S&R matters regardless of location. 

We conducted fieldwork from January 2009 to March 2010. We 

conducted our review 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. 
Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 


Page 26
 


Appendix A 

Purpose, Scope, and Methodology 

We appreciate the efforts by USCG management and staff who 

provide the information and access necessary to accomplish this 

review. 
00111

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 


Page 27
 


s.w

u.s. ""~'"' 1100 S«ondStreet, .. 5"",1245

Homerand Security wOlhinJtnn, DC 20S9)-OOO1 StaffSymbol:co-rn

United States !'l>I:rIo: (202) l7l·]53] Pox: (2Cl2)l7HJIl COBSt Guard

7501

MEMORANDUM

From: T. W.l0NES,CAPT~..,.> MAY 14 2DlaReply to Audit Manager,

COMDT (CO.82) Attn of: Mark Kulwicki

(202) 372-3533

To: Carlton I. Mann

Assistant Inspector General for Inspections

Subj: RESPONSE TO DHS OIG DRAFT REPORT: "RECOMMENDAnONS TO

IMPROVE THE COAST GUARD'S SYSTEM FOR ADJUDICATING SUSPENSION

AND REVOCATION MATTERS"

"Ref: (a) Department of Homeland Security Inspector General (DHS OlO) Report ofApril 30,

2010

1. This letter transmits Coast Guard's response to the Department of Homeland SecuritY

Inspector General (DHS DIG) findings and recorrunendations in reference (a) and describes

progress in implementing the recommendations.

2. The COBSt Guard concurs with all the recommendations listed in the report.

3. lfyou have any questions, my point ofcontact is Mr. Mark Kulwicki at (202) 372-3533.

•

Enclosure: (I) USCG Comments

Appendix B 

Management Comments to the Draft Report 
Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 


Page 28
 


Ui''ITED STATES COAST GUARD RESPONSE

ON THE DEPARTMENT OF HOMELAND SECURITY

INSPECTOR GENERAL DRAFT REPORT

TITLE: "Recommendations to Improve the Coast Guard's System for Adjudicating

Suspension and Revocation Matters"

COAST GUARD'S GEi'o'ERAL COl\1MENTS ON DUS OlG FINDINGS;

The Coast Guard concurs with all eleven recommendations to improve the effectiveness,

integrity and efficiency ofthe Administrative Law Judge (AU) Program and the

Suspension and Revocation (S&R) administrative proceedings. Implementation ofthe

DHS OIG Recommendations will be a priority and we hope adoption ofthese

recommendations further ensure public trust in the fairness ofthe Coast Guard S & R

p~edings.

Some ofthe recommendations in the report were previously identified by an internal

Working Group and are already in progress. Completed efforts demonstrating decisive

action by the Working Group include: publishing all decision and orders issued by AUs

from 1999 to current on Homeport, publishing all AU guidance documents; establishing

the S & R National Center ofExpertise (S & R NCOE); securing alternative locations for

hearings so Coast Guard facilities are not used and Federal courthouse usage is

maximized, establishing a program to make available the use of pro bono and law school

legal assistance programs for mariner representation and implementing electronic filing

for mariners.

The Coast Guard concurs with the recommendations which are aimed at improving the

competency ofthe investigating Officers that are presenting S&R cases before AUs.

Over the past three years, the Coast Guard has implemented the Marine Safety

Enhancement Plan, which contains elements to improve the competency ofthe

investigating Officers in the field. Specifically, the plan includes the following elements

to improve the competency and professionalism ofinvestigating Officers appearing

before AUs by:

1. Establishing pre-requisite training requirements for officers that are assigned as an

investigating Officer. While these requirements do not entail legal training in S&R

proceedings, they do ensure that investigating Officers are well-seasoned Marine Safety

professionals who are well-versed in the Marine Safety mission, as well as, the relevant

laws, regulations and Coast Guard policy. By establishing this base of Marine Safety

expertise, the Investigating Officers are better prepared to maintain maritime standards

for competence, conduct and enhancement ofsafety at sea through the S&R process.

2. Establishing the S&R National Centcr o(Exoer!ise (S&R NCOEl. As the DHS ora

report was being developed, the S&R NCOE was still being stood up. It is now fully

functioning and assisting investigating Officcrs with S&R proceedings. The staff at the

NCOE is well-versed in the Jaws, regulations and Coast Guard poHcy which govern the

Appendix B 

Management Comments to the Draft Report 
Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 


Page 29
 


S&R process and administrative hearing proceedings. More importantly, they are a

dedicated resource to assist Investigating Officers with the S&R process and

administrative hearing procedures. There are currently four members on staff at the

NCOE, including one attorney and they are in the process of bringing on three additiona

staff (to include an additional attorney). To ensure Investigating Officers are aware of .

this resource: the Office ofInvestigations & Analysis has published multiple

announcements regarding the availability and functions ofthe NCOE; staff attends and

presents a brief on NCOE functions at all investigating officer, S&R and Sector

Department Head courses located at the Coast Guard Training Center Yorktown, VA;

and staffprovides instruction to investigating officers on the S&R process and hearing

procedures during all S&R course~.

RECOMMENDAll0NS:

OIG Recommendation Nt: Evaluate current procedures for training AUs and create a

formal training program.

USCG ResPQDse: Concur. Currently, a copy ofthe AU Process Guide is provided to

all AUs and is posted on the Homeport website (www.Homeoortuscg.mil)thereby

increasing transparency to stakeholders (including the public). The AU Program will

create training aids and checklists that are consistent with Coast Guard statutes,

regulations, Commandant Decisions on Appeal (CDOA) and the Administrative

Procedures Act (APA); all of which will supplement the existing AU Process Guide.

Further, when drafting the training aids, the AU program will refer to the Office of

Management and Budget Final Bulletin for Agency Good Guidance Practices which is

intended to increase the quality and transparency of agency guidance and practices.

The curriculum wiII include generallegai issues arising in administrative law practice an

maritime law as enforced by the Coast Guard. Specifically, this includes vessel manning

requirements, issuance ofmecchant mariner credentials, vessel operating requirements,

drug and alcohol testing and fundamental navigation rules. We recognize that many of

these areas oflaw are complex and very specialized and many attorneys (even maritime

attorneys) may not have had much exposure to the intricacies ofthe law and regulations.

Estimated oompletion dale is end ofCY 2010.

OIG Recommendation #2: Develop formal written procedures for investigating

allegations of misconduct'against an AU.

USCG Response: Concur. The AU Program will create fonnal written guidance for th

Chief AU to follow when investigating an AU. The AU Program published procedures

for filing a complaint against an AU on' Homeport (www.Homeoort.uscg.mil) and

follows the Coast Guard's Administrative [nvestigations Manual; both will be considered

when implementing this recommendation. Estimated completion date is spring 2011.

OIG Recommendation #3: Create fonnal guidelines for the Chief AU to follow when

deciding how or whether to discipline an AU.

2

l

d

e

Appendix B 

Management Comments to the Draft Report 
Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 


Page 30
 


USCG RespoDse: Concur. It should be noted that other than a minor reprimand or

minimal suspension, the ChiefAU does not directly discipline an AU rather can only

recommend a sanction to the MSPB. The degree of discipline (suspension or

tennination) is a matter for MSPB to decide. Therefore, the recommendation ofhow to

discipline will be decided by the MSPB and our formal guidelines will address ''whether''

an AU should be disciplined. Estimated completion date is spring 201 1.

ole Recommendation #4: Revoke any obsolete policy guidance and consolidate

current policy guidance into a manual.

USCG Response: Concur. This is a partially completed task initiated by the AU

Program in 2008. A majority of obsolete policy docwnents and guidelines were

cancelled in 2009. These remaining policy documents will be updated, consolidated,

cancelled, revoked or replaced using the new method recommended for issuanee of

policy guidance (see recommendation #5 below). Estimated completion date is end of

CY201O.

OIG R~ommendation#5: Develop a standard fonnat for the issuance of policy

guidance that established to what extent an AU is required to follow the guidance.

USCG Response: Concur. The AU program is already in the process of developing a

standard fonnat for issuing of policy guidance to the AUs and staffthat is consistent

with OMS Guidance Policy. Estimated completion date is end ofCY 2010.

OIG Recommendation 1M: Administer a formal orientation and training course that

investigating officers complete before handling S&R cases.

USCG Response: Concur. Future Coast Guard policy will be changed to ensure

Investigating Officers that present cases before an AU have completed the S&R Hearing

Personnel Qualification Standard (which requires attendance ofthe existing S&R course),

or are directly assisted by an Investigating Officer with such qualification who is sitting

second chair al the S&R Hearing.

OIG Recommendation #7: Make available or require, if necessary, ongoing or advanced

skills training for investigating officers who seek or need to improve their prosecutorial

skills.

USCG Response: Concur. The Office ofInvestigations & Casualty Analysis will

work with the S&R NCOE to assess needs ofthe program. Expect this assessment to be

completed in twenty-four months, as the Marine Investigations program is currently in

the last year (of a multi-year effort) of adding additional civilian and military billets to

ensure there are enough investigating officers (lOs) in the field to handle the workload.

Until this is complete. the current emphasis is on the basic training of lOs. In the mean

time, the S&R NCOR is transitioning to full operating capacity and will be relied. upon to

provide the specialized expertise for complex cases.

Appendix B 

Management Comments to the Draft Report 
Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 


Page 31
 


OIG Recommendation #8: Promote the use ofthe Center of Expertise to ensure that

investigating officers have access to training and legal support.

USCG Response: Concur. On September 30, 2008, the Coast Guard authorized the

establishment ofthe S & R NCOE. Promoting and enhancing the use ofthe S & R

NCOE is an ongoing endeavor.

OIG Recommendation #9: Take steps to decrease the length oftime required to issue

CDOAs.

USCG Response: Concur. In 2007 the Coast Guard had a backlog of20 cases with an

average length oftime for resolution of2S months. Today we have cut that in half, with

only 9 cases on hand and with an average resolution of 16 months. While significant

progress has been made, we are still working to improve; the ultimate goal being that,

with the exception ofextremely complex and unusual cases, no appeal should take more

than 6 months to process.

OIG Recommendation #10: ~ate a database ofCDOAs and AU decisions in which

the public can use a topic or key word to locate relevant Coast Guard Precedent.

USCG Response: Concur. The Coast Guard continues to explore additional methods t

provide the public more meaningful access to CDOA and AU decisions, subject to the

availability ofresourees. Currently;the Coast Guard is actively exploring resources and

computer technology that is available or required to implement the functionality of key

word or topic search ofCDOAs and AU decisions. Given the multifaceted legal review

process coupled with the complcxity of computer technology options available, the goal

of completion is approximately twenty-four months.

OIG Recommendation #11: Develop formal procedures governing interaction between

personnel in the AU Program, the Judge Advocate General's Office, and the Office of

Investigation and Analysis. The procedures should address (I) training provided by one

office to another office; (2) the ability ofinvestigators, attorneys, and staffinvolved in th

investigation and prosecution of S & R matters to contact the AU program and the

Office of Maritime and International Law; and (3) the ability ofthe AU Program and the

Judge Advocate General's Office to communicate about appropriate issues ofconcern to

each office.

USCG Response: Concur. The Coast Guard believes that the Office of Maritime and

International Law's business rules put in place in May 2008 address much ofthis concern

and will prevent situations that would create any appearance ofimpropriety. Howevcr,

the Coast Guard intends to pursue transferring the function ofdrafting CDOAs from the

OffiCe of Maritime International Law to another, neutral office with little or no

responsibilities in advising the S & R program. We expect this transfer ofresponsibility

to occur within 12 months.

,

o

e

Appendix B 

Management Comments to the Draft Report 
Appendix C 

Major Contributors to this Report 

William J. McCarron, Chief Inspector 

Kimberley Cox, Inspector 

Christian Patton, Inspector 

Richard N. Reback, Counsel to the Inspector General 

René Rocque Lee, Assistant Counsel 

Adam Berlin, Assistant Counsel 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 


Page 32
 

Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters
 


Page 33
 


Appendix D 

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 

USCG Audit Liaison 

Office of Management and Budget 

Chief, Homeland Security Branch 

DHS OIG Budget Examiner 

Congress 

Congressional Oversight and Appropriations Committees, as 

appropriate 
ADDITIONAL INFORMATION AND COPIES 

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fax your request to (202) 254-4305, or visit the OIG web site at www.dhs.gov/oig. 

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