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37–015 PDF 2007

REVIEWING THE COAST GUARD’S 

ADMINISTRATIVE LAW SYSTEM 

(110–64) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COAST GUARD AND MARITIME TRANSPORTATION 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

JULY 31, 2007 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JAMES L. OBERSTAR, Minnesota, Chairman 

NICK J. RAHALL, II, West Virginia 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

GENE TAYLOR, Mississippi 

ELIJAH E. CUMMINGS, Maryland 

ELLEN O. TAUSCHER, California 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

BRIAN BAIRD, Washington 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

JULIA CARSON, Indiana 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

BRIAN HIGGINS, New York 

RUSS CARNAHAN, Missouri 

JOHN T. SALAZAR, Colorado 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

DORIS O. MATSUI, California 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio 

MAZIE K. HIRONO, Hawaii 

BRUCE L. BRALEY, Iowa 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A. ARCURI, New York 

HARRY E. MITCHELL, Arizona 

CHRISTOPHER P. CARNEY, Pennsylvania 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

STEVE COHEN, Tennessee 

JERRY MCNERNEY, California 

VACANCY 

JOHN L. MICA, Florida 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

WAYNE T. GILCHREST, Maryland 

VERNON J. EHLERS, Michigan 

STEVEN C. LATOURETTE, Ohio 

RICHARD H. BAKER, Louisiana 

FRANK A. LOBIONDO, New Jersey 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

TED POE, Texas 

DAVID G. REICHERT, Washington 

CONNIE MACK, Florida 

JOHN R. ‘RANDY’ KUHL, JR., New York 

LYNN A WESTMORELAND, Georgia 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

(II) 

SUBCOMMITTEE ON COAST GUARD AND MARITIME TRANSPORTATION 

ELIJAH E. CUMMINGS, Maryland, Chairman 

GENE TAYLOR, Mississippi 

RICK LARSEN, Washington 

CORRINE BROWN, Florida 

BRIAN HIGGINS, New York 

BRIAN BAIRD, Washington 

TIMOTHY H. BISHOP, New York 

VACANCY 

JAMES L. OBERSTAR, Minnesota 

(Ex Officio) 

STEVEN C. LATOURETTE, Ohio 

DON YOUNG, Alaska 

HOWARD COBLE, North Carolina 

WAYNE T. GILCHREST, Maryland 

FRANK A. LOBIONDO, New Jersey 

TED POE, Texas 

JOHN L. MICA, Florida 

(Ex Officio) 

(III) 

(V) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... vi 

TESTIMONY 

Dash, Professor Abraham, Professor Emeritus, University of Maryland School 

of Law .................................................................................................................... 8 

Denson, Judge Rosemary, Former Coast Guard Administrative Law Judge ..... 8 

Fitzpatrick, Judge Peter, Former Coast Guard Administrative Law Judge ....... 8 

Hewig, William, Attorney at Law and Principal, Kopelman and Paige, P.C. 

Boston, Massachusetts ......................................................................................... 8 

Jones, Hon. Walter B., a Representative in Congress from the State of North 

Carolina ................................................................................................................ 6 

Massey, Judge Jeffie, Former Coast Guard Administrative Law Judge ............. 8 

Salerno, Rear Admiral Brian, Director of Inspection and Compliance, United 

States Coast Guard, Washington, D.C. .............................................................. 48 

Sparks, Captain Thomas, Commanding Officer, Marine Safety Unit, United 

States Coast Guard, Port Arthur, Texas ............................................................ 48 

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Cummings, Hon. Elijah E., of Maryland ............................................................... 61 

Jones, Hon. Walter B., of North Carolina .............................................................. 64 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Dash, Professor Abraham ....................................................................................... 65 

Denson, Judge Rosemary ........................................................................................ 69 

Fitzpatrick, Judge Peter .......................................................................................... 83 

Hewig, William ........................................................................................................ 91 

Massey, Judge Jeffie ................................................................................................ 99 

Salerno, Rear Admiral Brian .................................................................................. 107 

SUBMISSIONS FOR THE RECORD 

Denson, Judge Rosemary, Former Coast Guard Administrative Law Judge, 

‘‘Long-Standing Insidious and Vindictive Culture of the CALJ Office, Which 

Has Resulted in the Continuous Violation of the Administrative Procedures 

Act’’ ........................................................................................................................ 74 

Jones, Hon. Walter B., a Representative in Congress from the State of North 

Carolina, written statement of Sean McKeon, President, North Carolina 

Fisheries Association ........................................................................................... 113 

LaTourette, Hon. Steven C., a Representative in Congress from the State 

of Ohio: 

U.S.C. 49 - Transportation - Subtitle A - Office of the Secretary of Transportation - Part 40 - Procedures for Transportation Workplace Drug and 

Alcohol Testing Programs ................................................................................ 29 

National Transportation Safety Board judgement of June 11, 2003 in the 

case of Thomas H. Collins v. Christopher Dresser, opinion and order ........ 31 

vi 


37015.001
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37015.002
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37015.003
ix 


37015.004
x 


37015.005
xi 


37015.006
xii 


37015.007
xiii 


37015.008
xiv 


37015.009
(1) 

REVIEW OF THE COAST GUARDS 

ADMINISTRATIVE LAW SYSTEM 

Tuesday, July 31, 2007 

HOUSE OF REPRESENTATIVES, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, SUBCOMMITTEE ON COAST GUARD AND MARITIME

TRANSPORTATION, Washington, DC. 

The Subcommittee met, pursuant to call, at 10:00 a.m., in Room 

2167, Rayburn House Office Building, Hon. Elijah E. Cummings 

[Chairman of the Subcommittee] presiding. 

Mr. CUMMINGS. Ladies and gentlemen, we will call this hearing to order. 

Today, the Subcommittee will examine the Coast Guard’s admin- istrative law system. This system adjudicates cases in which the 

Coast Guard personnel allege misconduct or negligence on the part 

of a mariner and seek the temporary suspension or permanent revocation of a mariner’s professional credentials. The Coast Guard 

fairly emphasizes that these cases are brought against the credential and not against an individual mariner, and that the overriding 

purpose of these actions is to ensure safety in our Nation’s maritime transportation profession. 

Safety is a critical goal, and mariners who are unsafe or who use 

drugs should not be on our Nation’s waterways. However, the suspension and revocation of a credential or a license is not a matter 

that is to be taken lightly in any professional industry. Without a 

credential, a mariner simply cannot work. Thus, in any administrative hearing, a mariner sees hanging in justice’s balance not just 

a piece of paper, but the ability to support a family, to pay a mortgage and to get ahead in life. 

Today’s hearing will give our Subcommittee the opportunity to 

examine whether the policies and procedures governing the conduct 

of administrative adjudications in the Coast Guard’s administrative 

law system guarantee the fairness of all proceedings to all parties 

who appear before the system. 

A detailed analysis of the 6,321 allegations filed by the Coast 

Guard against mariners through the administrative law system 

since 1999 reveals that a total of 3,441, or more than half of the 

allegations, claim that a mariner had used an illegal drug substance. Just over 30 percent of the allegations claimed incompetence, misconduct, negligence on the part of the mariner, and the 

remaining cases involve either the alleged violation of a marine 

safety law or a conviction in another legal proceeding for drug use, 

a DUI or other offenses. According to the Coast Guard records, of 

2 

the 6,321 allegations filed against mariners since 1999, a total of 

6,149 have now reached some type of disposition. Just over 46 percent of the allegations were settled between the mariner and the 

Coast Guard without proceeding to an adjudication. A total of 901 

allegations ended in default because a mariner never responded to 

the allegations while 433 allegations were administratively withdrawn by the Coast Guard because a mariner could not be found 

to be served with an allegation, and 422 allegations were withdrawn by the Coast Guard either because the allegation did not 

proceed or, more often, because a mariner voluntarily agreed to 

surrender a credential. 

Of the 6,149 allegations that have reached a disposition, of 957 

allegations, only 740 dockets were contested either because a mariner denied an allegation or disputed a proposed sanction. I note 

that a single docket often contains more than one allegation. Of 

these 740 contested dockets, ALJs have missed 131, or nearly 18 

percent of the cases. A total of 326 dockets, or 44 percent, reached 

settlement. 152 dockets proceeded to adjudication, and the remaining dockets reached some other disposition or are still in progress. 

Of the 152 dockets for which an adjudication proceeded to the 

issuance of an ALJ order, the charges against the mariner were 

found to be unproven in 18 cases. 

Though, the Coast Guard’s appeals of four of these cases resulted 

in three cases being remanded and the modification of one ALJ decision. Of the remaining dockets that proceeded through the adjudication, only some of the allegations on the docket were proven or 

a contested sanction was reduced in 131 cases while all allegations 

were proven on 93 dockets, or 61 percent of the cases that proceeded to adjudication. 

Now, while these numbers are very interesting, we have to be 

very careful. Of course, while these numbers give us an overview 

of the disposition of allegations and dockets, they do not reveal a 

mariner’s motivation in agreeing to a settlement or to explain why 

some allegations were found to be proven or unproven. Most importantly, these numbers reveal nothing about whether the policies 

and procedures governing either the management of the entire administrative law system or the conduct of individual adjudications 

are fair or whether they are fairly applied by the system’s Administrative Law Judges. Further, if there are instances of unfairness 

and propriety, these numbers do not reveal whether they are isolated incidents or proof that an entire system tolerates or even encourages prejudice against one party or the other in the conduct of 

an adjudicative proceeding. 

Unfortunately, allegations of unfairness and impropriety have 

come to the attention of this Subcommittee. Our hearing will explore the validity of these allegations. Our hearing will also examine whether the procedures in place in the Coast Guard’s administrative law system meet the higher standard of preventing even the 

mere appearance of impropriety or unfairness. Such appearances in 

any legal system are simply intolerable because they destroy trust 

in the system, which must be the ultimate protector of individual 

rights. By the way, this still is the United States of America. 

Administrative law is unique because it is a legal system within 

an executive branch agency, designed to oversee the application of 

3 

agency rules and regulations. Further, it is a system in which facts 

and decisions are concluded not by jury or by peers, but by a single 

Administrative Law Judge who also has wide latitude in directing 

the course of the proceedings. 

We will hear today from three individuals who have borne the 

responsibility of adjudicating administrative proceedings in the 

United States’ Coast Guard’s administrative law system. We will 

also hear from a witness who brings years of experience in representing mariners before the Coast Guard administrative law system. Another witness is Professor Abraham Dash, Professor of 

Law, Emeritus, of the University of Maryland School of Law, from 

which I proudly graduated. Although he did not teach me, I wish 

he had. He brings decades of experience, studying and teaching law 

to generations of students. The Coast Guard has sent two senior 

officers to discuss the management of its administrative law system, and we also look forward to hearing from them. 

Ladies and gentlemen, the very foundation of the entire American system of justice is the right to a fair hearing and to due process in any manner involving the law. These rights are sacred in 

this Nation. As a lawyer and as an officer of the court, I share the 

duty of those sworn to uphold these rights. More importantly, as 

Members of Congress, the Members of our Subcommittee share the 

duty of ensuring that all executive branch agencies treat all citizens fairly and impose sanctions against any individual only when 

an administrative proceeding has been fairly conducted, provides 

due process and all evidence has been heard. 

I emphasize that we will not be examining individual cases, 

whether opened or closed, in today’s hearing. The adjudication of 

administrative cases is properly left to the administrative law proceedings, and we honor that principle today. Rather, our task today 

is to ensure that the scales of Coast Guard justice can be trusted 

to fairly balance the legitimate safety concerns of the Coast Guard 

with the rights of mariners. 

With that, I look forward to the testimony of all of our witnesses. 

I thank all of you for being here today. 

Now we will hear from our distinguished Ranking Member, Mr. 

LaTourette, and on the record as I recognize you, Mr. LaTourette, 

I want to, again, thank you for working so closely with me on these 

matters but, just as importantly, the vote that we will take today 

with regard to Deep Water. I want to thank you again for your cooperation, and I really appreciate it. 

Mr. LaTourette. 

Mr. LATOURETTE. Thank you for yielding, Mr. Chairman. I want 

to respond in kind to your remarks. 

I apologize for being so brief last night on the floor, but we had 

some people who were pretty antsy to vote, but clearly, your leadership on the Deep Water bill and the Coast Guard reauthorization 

were done in a truly bipartisan way, and it is a pleasure to serve 

as your Ranking Member on this Subcommittee. 

I want to thank you, Mr. Chairman, for holding this hearing 

today, and I also want to thank you for what I consider to be a very 

measured opening statement, because what brings us here today— 

I have to tell you just a little bit of background. I began my career 

as a public defender, and I stopped being a public defender beVerDate Aug 31 2005 15:36 Jun 18, 2009 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 P:\DOCS\37015 JASON
4 

cause, when you are a public defender, the judges do not like you; 

the prosecutor does not like you, and your clients do not like you. 

So I then switched, and I became the prosecuting attorney in my 

town before my election to Congress, so I have seen the justice system from both sides, and I am concerned that the allegations that 

I expect to be raised today are going to suggest that the ALJ system within the Coast Guard is somehow fixed in favor of the Coast 

Guard and against those who seek redress, and that is troubling 

to me as a lawyer and as an officer of the court, as I am sure it 

is troubling to you. 

When we had a hearing a couple of weeks ago, I listened to you 

talk about a Baltimore Sun story, and I did not know what it was 

because I do not subscribe to the Baltimore Sun because, quite 

frankly, I am from Cleveland, and I am still mad about their stealing the Cleveland Browns. 

But I did read the story, and the story is alarming, and it is 

alarming because it claims in its opening salvo that, out of 6,300 

cases, in only 14 cases did the mariners prevail. Now, that is a 

startling number, and I will tell you, as a prosecuting attorney, 

when I indicted somebody, they were most likely guilty, and so, 

when we would go to trial, it does not surprise me, when the article 

talks about the DOJ system, where 9 to 1 is the conviction rate. 

I get that, and I think that that is reasonable and that it is probably uniform across the system. 

The problem with the Baltimore Sun article is that it does not 

appear to be true, and I think the Chairman, in his opening statement, pretty well laid that out. Of the 6,321 cases, only 957 were 

contested, and I will get down to the bottom there. 45 percent were 

settled. In 9 percent, the mariner admitted the misconduct. 7 percent were withdrawn, and in 7 percent, they were unable to find 

the person, and so they did not serve the documents. It is my understanding from reviewing the documents that only 218 of these 

6,321 actually got to in Administrative Law Judge’s desk, and of 

those, 124 were proven. That is 82 percent, which is below the 90 

percent that you would find at the Department of Justice. 

The other thing that concerns me is that there are allegations in 

the article from former Administrative Law Judges about ex parte 

communications and hearings that took place, but I do not find 

anybody on today’s witness list who was at those meetings, and so 

I would like to submit and ask unanimous consent to submit for 

the record a memorandum prepared on 7 March 2005 that details 

the meeting in New Orleans. Just as a pertinent part, before the 

meeting started, according to this document, I understand there 

might be somebody named Jordan in the audience, and I understand he was at the meeting, and so, if we are going to get into 

this meeting, perhaps we could ask Mr. Jordan to tell us what really happened at the meeting because he was there. It specifically 

says that they laid ground rules that they were going to be prohibited from having any ex parte communications. 

Now, you know, Mr. Chairman, ex parte communications are 

horrible, and they are cause for recusal and dismissal and everything else, but if that did not take place, I hope that we are not 

going to hear from witnesses who claim that it did. 

5 

Then, secondly, as to a meeting that took place in Baltimore on 

a memorandum prepared on 11 April 2005, I would ask unanimous 

consent that those be submitted for the record. 

Mr. CUMMINGS. Without objection, so ordered. 

Mr. LATOURETTE. Then also laced in the article is this whole 

business about hemp oil and marijuana. The Chairman correctly 

points out that most of these cases deal with substance abuse, and 

I would hope that someone could explain to me why—and I think 

there is an allegation and some testimony that this Chief Judge 

Ingolia, who is not going to be here today, circulated some secret 

memo about you are not going to take in evidence on hemp oil. 

Well, I have the CFR, 49 CFR 40.293, that says the DOT regulations specifically directs that you may not take into consideration 

in any way statements by the employee that attempt to mitigate 

the seriousness of the violation related to the use of hemp oil, medical marijuana, contact positives, poppy seed ingestion or job stress. 

So, again, if you read the Baltimore Sun article, it is like this 

chief judge circulated some secret memo to deny a defense when, 

I think, the Code of Federal Regulations instructs the DOT operations to not consider it. I can remember it was a big thing for guys 

who got DUIs, when I was the prosecutor, that they would like 

drink Listerine and then pop some stuff or say they were diabetics, 

and so I do not know whether that is going on with hemp oil or 

not, but the allegation in the article is that this chief judge was denying people their rights because of the use of hemp oil when, in 

fact, DOT regulations say that you cannot consider it. 

So I would hope, depending upon what comes up at this hearing, 

that the Chairman would consider having an additional hearing 

where former ALJ Lawson, who is the only person quoted in the 

Baltimore Sun article that appears to say anything nice about the 

ALJ system—and Brudzinsky, Ingolia and McKenna, together with 

Mr. Jordan and others, who were participants at the meeting down 

in New Orleans—so we can get a truly accurate picture. I will tell 

you that, if this system is slanted against mariners, I will join the 

Chairman to fix it, but I do have some questions as to how this article was generated, and I have some questions about the allegations contained in it. 

I thank the Chairman for the hearing, and I look forward to it. 

Mr. CUMMINGS. I want to thank the gentleman for his opening 

statement. Let me be very abundantly clear. 

I think that you were very kind, and you were very accurate 

when you talked about my measured opening statement. I am not 

so much concerned about the numbers. I am concerned more about 

the allegations, and I think that we have to—whenever these kinds 

of situations arise, I think, preliminarily, we have to look into 

them. 

Let me say to Mr. LaTourette that there has been no issue that 

we have dealt with—and we have dealt with many on this Committee in the last 7 months—that has gotten more of a response 

than this one from the mariner community. 

Again, as you well know, I approach these hearings from a very 

balanced standpoint, and we go where the facts lead. As far as the 

February 2005 meeting, we asked the Coast Guard to send us some 

folks who could address those issues. We would have loved to have 

6 

had them, but they did not do that. So, with regard to follow-up, 

you know I do not mind holding hearings. As I have said many 

times, when it comes to the Coast Guard, I will have a hearing 

every day to make sure that it is the very best organization that 

it can be. 

So one of the other problems that we face is that there is an ongoing DOJ—there are ongoing cases, and so there were some 

issues, I think, where they did not want—that maybe the Coast 

Guard did not want to send certain people, and certain people were 

just—it would just interfere with those cases, and so we were trying to strike a balance, but I assure you that I will work very closely to bring anybody before this Subcommittee and the Committee 

who can shed light on this situation because, in the end—I think 

the last thing you said is the thing that is one of the main reasons 

why I have so much respect for you, and that is that you said that 

if you find that there is unfairness that you, too, want to stamp it 

out. If there is none, then we are fine. We will just move on. So 

that is why we hold the hearing today. 

With that, we are very pleased to have with us Representative 

Walter Jones, who has asked to address the Subcommittee for 5 

minutes, and I want to thank Representative Jones for being here. 

He is a Member of the Full Committee, and he is someone who I 

have just a tremendous amount of respect for, and I want to thank 

you for being with us. I was thinking about Armed Services. He 

and I sit on Armed Services together, and I know that he is a man 

of just tremendous integrity, and I am very, very interested to and 

I know our Committee is very interested to hear what you have to 

say. 

Thank you very much. 

Mr. JONES. Mr. Chairman, first, thank you for those very kind 

remarks. To you and to the Ranking Member—Mr. LaTourette— 

and to the Committee Members who are here today, I thank you 

for holding this hearing and for allowing me to make a very brief 

statement, and I want to start by quoting Thomas Jefferson, and 

this is his quote: 

′′The most sacred of the duties of a government is to do equal 

and impartial justice to all citizens.′′ 

Sadly, a recent Baltimore Sun investigation helped to reveal that 

the U.S. Government and specifically the Coast Guard’s Administrative Law Judge system is denying mariners and fishermen the 

justice they deserve. The Sun’s investigation confirmed what 

watermen in my eastern North Carolina district already know; 

standing up for your innocence in the Coast Guard court system is 

all but useless because the deck is so hopelessly stacked against 

you. 

The Sun found that the Coast Guard prosecutors have a 40-to1 success rate. Faced with the near certain odds of a guilty verdict 

and a steep penalty, innocent mariners still have no choice but to 

settle with the Coast Guard even if settling would do great damage 

to their reputations, to their careers, and to their ability to provide 

for their families. 

The Sun also uncovered other alleged improprieties and procedural inequities that, if true, help explain why mariners are so unsuccessful in Coast Guard courts. These allegations include the 

7 

Chief Administrative Law Judge pressuring judges to rule in favor 

of the Coast Guard—these are allegations, I admit, but thank you 

for holding this hearing—improper contact between members of the 

Coast Guard’s ALJ system and Coast Guard personnel regarding 

open cases, rulings being predetermined by judicial policies, circulated privately by the chief justice and the Coast Guard’s Administrative Law Judge’s repeated denials of defendants’ requests for 

evidence against them. 

They are allegations, but as you said, Mr. Chairman, your comment was allegations need to be disproven if they are not true. Mr. 

Chairman, I cannot tell you how pleased I am that this Subcommittee is holding this hearing today. You have a symbol, a distinguished panel of witnesses, and I look forward to their testimony. But with your indulgence, I believe the Subcommittee would 

also benefit from hearing from some of those most affected by the 

Coast Guard court system, the watermen themselves. 

To that end, I would ask unanimous consent to include in the 

record a statement from Sean McKeon, President of the North 

Carolina Fisherman’s Association. Mr. McKeon outlines the experiences that many North Carolina commercial fisherman have had 

with the Coast Guard courts, experiences which are disturbingly 

similar to those revealed by the Baltimore Sun. 

With that, Mr. Chairman, I ask that I might submit that for 

unanimous consent. 

Mr. CUMMINGS. Without objection, so ordered. 

Mr. JONES. Mr. Chairman, with that, I want to thank you again 

for giving me these few minutes to make this presentation and to 

thank you and this Committee because, when it all comes down, it 

is exactly what Thomas Jefferson said, ′′equal under the law for 

all.′′ 

So, with that, I yield back the balance of my time. 

Mr. CUMMINGS. Representative Jones, let me just say this—and 

I will make our Subcommittee Ranking Member aware of this also. 

First of all, thank you for the statement. Is it Mr. McKeon? 

Mr. JONES. Yes, sir. 

Mr. CUMMINGS. One of the things that we found in our efforts 

to pull together this hearing is that there were people in the mariner community who were basically afraid to testify. 

Mr. JONES. I understand. 

Mr. CUMMINGS. Afraid. That is very, very alarming to you as a 

Member, to all of us as Members of Congress. They were fearful 

of retaliation in some kind of way, and I am going to—and we have 

got another hearing coming up on Thursday with regard to marine 

safety, and we had some issues with the same kind of problem. So 

we appreciate Mr. McKeon’s statement, and we appreciate you. 

Do you have any questions? 

Mr. LATOURETTE. I do not have any questions. I just want to 

make an observation. 

Congressman Jones is my classmate from 1994, and over these 

last 13 years, I have the greatest admiration and respect for Congressman Jones and some very principled positions he has taken 

during his career. 

I would just say to my friend that one of the things that concerns 

me, as I attempted in my opening remarks to go through, is the 

8 

fact that the Sun article is not correct when it comes to the 40 to 

1, but the other thing that concerns me, again from my background 

as a prosecuting attorney, is that I am familiar with people being 

sort of whipsawed or forced to take pleas or to reach settlements 

that they do not normally want to do, and I think that that can 

be just as pernicious and obnoxious as a trial or a proceeding that 

is not fair. 

I, again, went to the Code of Federal Regulations, and I just 

want the gentleman to know that at least 45 percent of the cases 

that are settled require the person who has the charges filed 

against him to make an admission of all jurisdictional facts, so they 

have to say that the charges are true before they can enter into a 

settlement with the Coast Guard for presentation to a judge. 

Now, I am also familiar—we used to have something called an ′′Alford plea′′ where the defendant comes in, and he says, ′′I did not 

do this,′′ but it is the difference between 5 years and 10 years, and 

so I will take the 5. If that is what is going on, I will tell you, Mr. 

Jones and the Chairman, that that is wrong, too, but I do hope that 

this hearing and our additional investigation gets into this notion 

that 45 percent of the cases are settled, but in those settlements, 

the person has to admit the facts brought against him or her by 

the Coast Guard. 

I thank the Chair and I yield back. 

Mr. JONES. Mr. Chairman, again, I close by saying thank you to 

you and to Mr. LaTourette. I think this is a very, very important 

hearing, and I thank you very much for the opportunity to speak. 

Mr. CUMMINGS. Representative Jones, we thank you. Thank you 

very much. 

We will now bring forth our first panel of witnesses. We will 

have two panels of witnesses. The first panel will be Judge Peter 

Fitzpatrick, a former Coast Guard Administrative Law Judge; 

Judge Rosemary Denson, a former Coast Guard Administrative 

Law Judge; Judge Jeffie Massey, a former Coast Guard Administrative Law Judge; Professor Abraham Dash, Professor Emeritus at 

the University of Maryland School of Law; and Mr. William Hewig, 

Attorney At Law and Principal with the firm of Kopelman and 

Paige, P.C. in Boston, Massachusetts. 

TESTIMONIES OF JUDGE PETER FITZPATRICK, FORMER 

COAST GUARD ADMINISTRATIVE LAW JUDGE; JUDGE ROSEMARY DENSON, FORMER COAST GUARD ADMINISTRATIVE 

LAW JUDGE; JUDGE JEFFIE MASSEY, FORMER COAST 

GUARD ADMINISTRATIVE LAW JUDGE; PROFESSOR ABRAHAM DASH, PROFESSOR EMERITUS, UNIVERSITY OF MARYLAND SCHOOL OF LAW; AND WILLIAM HEWIG, ATTORNEY AT 

LAW AND PRINCIPAL, KOPELMAN AND PAIGE, P.C. BOSTON, 

MASSACHUSETTS 

Mr. CUMMINGS. I want to again thank all of you for being here 

today. We will ask you to make 5-minute statements. Keep in mind 

that we have your written testimony, and you can basically summarize your statements, if you will, and then we will go into the 

questioning. We will hear from you in the order that you are sitting. 

So, therefore, Mr. Fitzpatrick, please. 

9 

Judge FITZPATRICK. Thank you, Mr. Chairman. 

My name is Peter Fitzpatrick, and I retired as a Coast Guard 

Administrative Law Judge, after 27 years of service, on January 

3rd of this year. 

I want to say at the outset that, during the 27 years as a Coast 

Guard Administrative Law Judge in Norfolk, Virginia, no one, no 

chief judge—the present chief judge or the former chief judge—ever 

directed, pressured or ordered me to decide any case for either side. 

In addition to that, no district commander, no investigating officer 

and no captain of the port has ever told me how to decide a case. 

That allegation in the Baltimore Sun is absolutely erroneous as far 

as it goes for me in Norfolk. I am a very independent person, and 

so are the other Coast Guard judges. I cannot imagine someone 

like Judge Boggs, after 50 years of service in New Orleans, ever 

being told by anybody to do anything. That is the first point I want 

to make. 

Secondly, I found that article in the Baltimore Sun to be yellow 

journalism at its worst. I have never seen such an attempt to tear 

down the reputation of the chief judge of the Coast Guard, who I 

find to be a man of the highest integrity, a war hero who fought 

in the Second World War and in the Korean War. He is a man of 

the utmost and highest integrity and one who I respect as much 

as anyone I know. Never would he ever—in fact, at every meeting 

we ever had he was adamant in making sure that none of his 

judges had ex parte communications—that was a big issue, and it 

was a constant one—but more than that, as to the way in which 

he supervises and fills out his role as Administrative Law Judge, 

I had very little contact with the chief judge on a weekly basis. 

In fact, I would not hear from Washington for 3 or 4 months at 

a time. I would contact the staff attorneys who might be working 

for me as we were doing cases, but there was very little contact 

with the chief judge’s office. In fact, at one point, it was rather 

frustrating to me, and I asked him. ′′listen, would you mind if I put 

together a monthly meeting in which the judges could talk about 

issues of their mutual interest.′′ he said, ′′Yes,′′ and we did that for 

a while, but it was really sporadic, and it did not go any place. 

I submit to you that there is a big difference between 1980, when 

I began, and 1991—in that 11-year period under the former chief 

judge—and the present period between 1991 and the present. This 

chief judge has done a great job with that program, and the last 

thing on earth we have been encouraged to do or even—we would 

be criticized severely if we denied the rights of a respondent in a 

hearing. 

In every hearing I have I am fully aware of exactly how much 

this means to the individual. The most difficult and painful cases 

we have had are the drug cases because you can have someone who 

is a competent mariner who goes awry with the use of dangerous 

drugs, and we do not have much choice when it comes to one of 

those cases. If, in fact, it is proved with a testing process that he 

is the user of dangerous drugs, we must revoke unless under the 

statute it can be showed he is cured. When I started this job, the 

Coast Guard had a zero tolerance policy with respect to drugs. Myself, Judge Boggs and Judge Hanrahan in Jacksonville had a lot to 

do with developing the cure exception that is in the statute, and 

10 

we would send our mariners to rehabilitation programs and stuff 

like that so that they could then show that they were cured and 

get back their licenses. 

The Coast Guard started out with a zero tolerance policy. So, as 

a result of our efforts as judges in the field, that changed, and 

today, of those settlements that you hear about, almost every case 

of drug testing is generally a settlement. It is a settlement where 

the individual goes through a rehabilitation program, takes unannounced drug testing during the period of time and takes courses, 

and then if he can show he has distanced himself for a year, he 

can go back to sea one time. If he does it again, then in my estimation, he should not go back to sea, but it is Congress that put 

that directive to us as judges. They put it to the Coast Guard. The 

Coast Guard, in its regulations, declares that, if an individual is 

shown to be the user of dangerous drugs, his document must be revoked. 

Mr. CUMMINGS. Thank you very much, Mr. Fitzpatrick. 

Ms. Denson. 

Judge DENSON. Good morning, Mr. Chairman and Members of 

the Committee. My time period with the Coast Guard as an Administrative Law Judge was from the period of 1982 to 1996. I can 

speak for that period of time. I know there have been changes 

made since then that I might not be aware of, but I did have some 

experiences in the Coast Guard that I thought were less than appropriate that should not be existing in a program like the Administrative Law Judge program that is supposed to provide fair and 

impartial hearings to our Merchant Mariners. Part of that existed 

with the internal workings of the program. 

I had experiences—there were three chief judges that I served 

under, one of them Judge Chatterton, the second Judge Boggs, Archie Boggs, and Judge Joseph Ingolia. My comments are not made 

in regard to Judge Boggs because I never had experiences with 

Judge Boggs that I thought were inappropriate and in an inappropriate environment for a judge to be operating under. 

With the first chief judge, I found that there was intimidation 

and isolation if you did not go along with the program. As far as 

my deciding a case one way or another, I was not influenced by 

this type of intimidation that I received, but nevertheless—and I 

can say that more towards Judge Chatterton than Judge Ingolia— 

there were letters written to embarrass me about a case that I 

might have been handling that he had never reviewed or who was 

never even present during the hearing, who was telling me to comport myself in a certain way because a disgruntled attorney had 

sent a letter, and the chief judge never called me; he never spoke 

to me; he just wrote a letter. This letter I received after a year 

when I was, really, in literal isolation from him because of some 

clerical leave that I had given my legal assistant. I was put on a 

bad list, I guess you could say, and there was no communication. 

It was this type of behavior. 

Then the most significant was not assigning me cases to hear, 

and that does not bode well for the following of the APA and the 

administering of justice in the rotational assignments of cases. The 

objective I found out later from Admiral Nelson of the Coast Guard 

at the time and Admiral Lust, who was the Chief of Staff—they 

11 

told me that they were in the process of shrinking my caseload because of the desire of the then-chief judge to eliminate my position 

with the Coast Guard. That happened back in the 1980s. Then subsequent to that time after Judge Ingolia came on board, there was 

another process that gradually grew where there was a shrinking 

of my caseload and, eventually, a recommendation that my office 

be closed and that I be eliminated. This type of behavior, to me, 

was a setup to get rid of me on two separate occasions. I do not 

know what was not attractive about having me there, but it was 

done improperly. 

The final thing that was done was a RIF, and a ′′RIF′′ is a Reduction in Force in the government. The Coast Guard Administrative 

Law Judge Program happens to be a headquarters unit, and the 

Commandant instructions provides how a RIF should be done with 

the headquarters unit, and that was not followed by Chief Judge 

Ingolia at the time because, if it is a headquarters unit, your RIF 

competitive area is nationwide. That means I would have been in 

competition with all of the other judges. However, it was decided 

by Judge Ingolia that my competitive area was St. Louis where I 

served as a judge in the surrounding areas, and there were no 

other Coast Guard ALJs that I had competition with, and I was, 

therefore, eliminated. This is commonly known as a designer RIF, 

and it is used against veterans. 

So, if veterans are in a particular area of competition with no one 

to compete against, you can get rid of a veteran, and that was done 

to me at that time when they got rid of me in 1996, but this just 

led up, I mean, there were many things that led up to this type 

of behavior, to this conclusion, I should say. 

As I said, my caseload was shrunk, and even when I asked for 

cases, they were not given to me. Cases were given to judges who 

were like 800 or 900 miles away when I was 300 miles away. When 

I was in St. Louis, a Chicago case up came up, and it was not provided me to hear that to keep my caseload going. I did sense what 

I was doing, and when I had that situation and that feeling that 

I am insecure in my position, that does not bode well for my sitting 

and being able to concentrate on my work in deciding the cases. 

However, I felt I worked very hard on my cases, and I did not show 

favor towards either side, and I thought I wrote a well-crafted decision and order. 

I also asked for assistance, for law clerks to assist me, which 

were provided to the other judges and were never provided to me. 

I do not have answers to why those questions happened. I am sure 

the Coast Guard chief judge has answers for that, but I was in a 

work environment that was not healthy, and I also retired under 

a medical disability because life is more important than putting up 

with that kind of behavior. 

So, as far as the seamen’s getting a fair hearing, I did my very 

best in every single case to give them a fair hearing. However, 

there were outside influences that tried to direct against me to 

work in an environment where I do not think I worked up to my 

capabilities but where I could have, not that they did not get fair 

hearings. 

Mr. CUMMINGS. Thank you very much. 

Ms. Massey. 

12 

Judge MASSEY. Mr. Chairman, Mr. LaTourette and Members of 

the Committee, thank you for the opportunity to contribute information to your investigation. 

For a moment, let me ask you to imagine that you are a mariner 

living in Southern Mississippi. You are a high school graduate, and 

you have worked as a crewman on a vessel that takes supplies to 

oil rigs in the Gulf of Mexico. You have been employed by various 

companies in the last 10 years, but you have never done any other 

type of work, and you have no training to do any other type of 

work. It is 1:00 p.m. in the afternoon, and you are sitting in the 

upstairs hall of a regional Coast Guard facility, the same facility 

where the investigating officer you met with 6 months ago has his 

office. 

It was then that he served you with a copy of a complaint that 

alleged you had been intoxicated on board the vessel you last 

worked on, and while intoxicated, you assaulted another crew 

member. When your vessel docked after this incident, you were informed by the company’s Regional Employee Relations Specialist 

that you were being fired because of the allegations, and they had 

to report the alleged incident to the U.S. Coast Guard. When you 

met with the investigating officer, he took your mariner’s credentials from you. You have been out of work for 6 months. Although 

the investigating officer explained to you that you had the right to 

an attorney to represent you at a hearing, you cannot afford an attorney. You feel, if you just tell your side of the story, any reasonable person will know that the charges are not true. You believe 

that the Coast Guard will have several crew members present to 

testify because you know the Coast Guard took statements from 

them. They all know what really happened. When you received a 

witness list from the Coast Guard just 2 weeks before your hearing, you see that the names of all of the crew members they interviewed are not on there. You do not understand that this means 

that the Coast Guard does not intend to call these men as witnesses. There are all sorts of uniform Coast Guard employees milling about. After about 15 minutes, a man comes up the stairs, accompanied by the I.O. you met with and two other uniformed U.S. 

Coast Guard employees. They are laughing and talking and paying 

no attention to you. They all go into a room down the hall, a room 

you are summoned into in a few minutes. 

To your surprise, sitting on the bench is the man who is just 

laughing and talking with the Coast Guard employees. None of the 

crew members who you know witnessed the incident are present. 

The only people there are your former employer’s Regional Employee Relations Specialist and the crew member you had the fight 

with. The hearing is over in less than 30 minutes. The crew member who you had the fight with testified that you were intoxicated 

and that you attacked him for no reason. The employee specialist 

testifies that he received a report of the incident, took you off the 

boat because that was company policy and informed you that you 

were fired. You testify that you were not intoxicated, that the other 

crew member had been drinking, and he attacked you. You were 

only defending yourself. You also testify that this crew member had 

it in for you because a former girlfriend of his had started dating 

you. You know but do not say that this guy is also a cousin of 

13 

someone’s who is an executive in the company you worked for. You 

do not mention it because you do not know it is important, and no 

one asks you. 

You tell the judge that there were other witnesses to the incident, but he tells you that, if you did not get them to the hearing, 

then he was not going to hear their testimony today because today 

was your hearing date and your only chance to present your evidence. Before you really understand what is happening to you, the 

judge says your license is suspended for 6 months. 

I hope that this scenario does not sound incredible or unlikely to 

the Committee Members because, based on my experience of the 

Coast Guard, this scenario is representative of past hearings, the 

type of hearings that have gone on for years at the Coast Guard. 

I also hope that the Committee Members understand that I am 

here today only because I believe the suspension and revocation 

hearing process at the Coast Guard is in violation of its own regulations and of all the basic tenets of due process. 

Despite the personal attacks and disrespectful environment I was 

subjected to while at the Coast Guard, my appearance here today 

has nothing to do with me, personally. What has been happening 

to the mariners who have been forced to face us in our proceedings 

without the protections guaranteed by law is the only thing that 

matters. 

I welcome the questions of the Committee Members. 

Mr. CUMMINGS. Thank you very much. 

Professor Dash. 

Mr. DASH. Thank you, Mr. Chairman. 

My name is Abraham Alan Dash. I am an Emeritus Professor of 

Law at the University of Maryland School of Law where I have 

taught admin law for the past 30 years. I am present today because the law school wanted to extend all courtesies to this Committee, particularly to its Chairman, one of our former graduates. 

I am here myself because there were two of us who teach admin 

law who were available this summer, and I lost the toss, so I hope 

that establishes the fact that I am completely objective here at this 

hearing. 

Now, much of what I will say in my statement I am pretty sure 

all of you are familiar with, but for the record, the Federal APA 

was passed in 1946, and this statute was an attempt to correct the 

due process problems of that time. There were no standard procedures of agencies. Each agency, more or less, did what they wanted 

for an adjudication or for a rulemaking. 

Now, the adjudication sections of the APA are, obviously, the 

most relevant here. I would note the adjudications under the APA 

are reserved only for those agencies whose statutes require a hearing on the record. Now, the reason I note it is because, when an 

APA hearing is triggered, it is because Congress intended to have 

the full panoply of due process rights for that particular adjudication. 

Now, the APA hearings, of course, go way beyond any requirements of the fifth amendment of due process. They are loaded. 

Sometimes they are compared to a Federal District Court non jury 

trial. 

14 

I notice that it is apparent that there were three areas of procedural due process of the APA that are relevant to this hearing. One 

is the independence and impartiality of the factfinder, or the, i.e., 

Administrative Law Judge; ex parte contacts with the factfinder, 

again the Administrative Law Judge; and the discovery for respondents in Coast Guard adjudications. 

Now, on independence and impartiality, in the 1970s, there was 

a complaint that the then hearing examiners at the time were not 

as objective or independent as they should be. Congress held hearings, and there were issues coming up of perhaps having an Administrative Law Judge corps or even a U.S. administrative court. 

The compromise in Congress was to change the name of the hearing examiner to Administrative Law Judges, and it was not any 

simple change in title. It was the clear intent of Congress to maintain their independence. I will also note that the pay of ALJs is set 

by the Office of Personnel Management, and the discipline of ALJs 

is entrusted to the Merit Systems Protection Board and, of course, 

not to the individual agencies. 

As to ex parte contacts with ALJs, I do not think I would waste 

the time of the Committee. It is so obvious that ex parte contacts 

with a fact finder in a pending case is definitely a denial of due 

process. 

Discovery. The APA says very little about discovery in agency 

proceedings. Agencies are authorized to issue subpoenas, of course, 

by the parties on request. They are also authorized to permit depositions be taken. Now, the Attorney General’s manual, when they 

first interpreted the APA in 1947, did stress that the party should 

be given the same access to discovery as the agency, which, in all 

fairness, is difficult to do because agencies have a lot of vesicatory 

powers before they ever bring a charge. However, agencies do differ 

in the types of discovery permitted. 

There are some who use the liberal discovery rules of the Federal 

Rules of Civil Procedure. Others are more limited. Of course, there 

is discretion left with the Administrative Law Judge because each 

case is separate, and discovery can very much be dependent on the 

nature of the parties and on the intricacies and the problems, obviously, of the case, itself. There is also, of course, a basic due process requirement for discovery so respondents can defend themselves. 

I would also note, before I close, that I have a great respect for 

Administrative Law Judges. I have had the honor of lecturing at 

the National Judicial College in Reno to ALJs. I have also lectured 

to some of the agencies and to their ALJs. I would note to the Committee—I am pretty sure you are aware of it—in some agencies, for 

an ALJ, the requirements are more strict than to be a Federal District Court judge. So they deserve all respect that could be given 

to them. 

In conclusion, of course, I am available here for any assistance 

I may give the Committee, and will answer any questions that I 

can. 

Thank you, sir. 

Mr. CUMMINGS. Thank you very much. 

Mr.— would you pronounce your name for me. 

Mr. HEWIG. It is ′′Hue-wig,′′ Mr. Chairman. 

15 

Mr. CUMMINGS. ′′Hue-wig.′′ I just wanted to make sure I got it 

right. 

Mr. Hewig. 

Mr. HEWIG. Thank you, Mr. Chairman, the Ranking Member and 

Members of the Subcommittee. My name is William Hewig from 

the Boston, Massachusetts law firm of Kopelman and Paige. 

My written statement discusses two cases from my recent experience, and I will not review the details of those cases here with you 

now other than to say that they illustrate very well two of the 

main themes in Judge Massey’s memoranda—apparent bias on the 

part of some ALJs in favor of the Coast Guard and the disregard 

of regulations that would permit discovery. The lessons from these 

cases present three policy implications that I would respectfully 

put before you now. 

First, ALJs for license, suspension and revocation of Coast Guard 

actions must be independent, truly independent. Judge Massey’s 

information detailed what appeared to be possibly extensive networks of ex parte communications between the Coast Guard and 

the ALJs. If such an arrangement is, in fact, true, it should not be 

surprising when apparent improper influence and interference become inevitable features of the system, itself. 

I urge the Subcommittee to reform the procedures for adjudicating maritime license and document actions along the lines employed by the FAA, the Federal Aviation Administration. There, 

when the FAA makes a civil penalty or a licensing decision, the adjudication is referred outside the agency to an ALJ and to the National Transportation Safety Board. Such a reform would serve the 

important public policy benefit of benefiting not only mariners, but 

also the Coast Guard and the ALJs, themselves, by reaffirming the 

integrity of a system currently subject to widespread disrespect and 

skepticism. 

Secondly, some limited discovery should be granted as of right. 

Judge Massey’s information essentially showed that the 1998 rule 

amendments made to permit discovery were, instead, being promoted by the Coast Guard as a way to deny discovery. Judge 

Massey correctly recognized the connection between discovery and 

judicial economy. In my experience, discovery is the catalyst of settlement, and settlements serve the important public policy of judicial economy. I urge the Subcommittee to consider amending the 

regulations to provide some form of limited discovery in S&R proceedings as of right. 

Third, in science and medicine, there are no absolutes. Judge 

Massey’s information contained recurring references to a prevailing 

attitude within the agency that the Coast Guard is always right. 

We saw, in the first case I discussed with you in my written statement, the McDonald case that the Coast Guard was wrong about 

their science. That was a mistake that cost the taxpayers as well 

as the respondent thousands and thousands of dollars. If the Supreme Court can recognize that scientific conclusions are subject to 

perpetual revision, then I would respectfully submit that the Coast 

Guard must do the same. 

Where a legal outcome is, by regulation, determined by scientific 

or medical information or measurement, the evidence or measurement should never be absolute. It should always be made a rebutVerDate Aug 31 2005 15:36 Jun 18, 2009 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 P:\DOCS\37015 JASON
16 

table presumption to allow a case-by-case determination. Had that 

been the case in the McDonald matter, thousands of dollars and 3, 

4, 5 years of time might well have been saved. This would serve 

the important public policy goal of fairness to mariners as the 

McDonald case clearly showed. 

In conclusion, our mariners, as American citizens, have the right 

to expect that the public officials who preside over their affairs 

and, in so doing, govern their livelihoods will do so with honesty, 

integrity and respect for the laws and for the constitution of their 

land and our land, and that, above all, is the most important public 

policy goal that Judge Massey’s experience, as well as my own, 

have to respectfully commend to your care. 

Members of the Committee, thank you for hearing me. 

Mr. CUMMINGS. Thank you very much. 

Let me thank all of you for your testimony, and let me say from 

the outset that, as I was sitting here, listening to the testimony, 

particularly that of Ms. Denson and of Ms. Massey, I realize that 

so often when we sit in these hearings there is a presumption that 

somebody has a personal gripe, and I think we have to be very 

careful with that because, as I was saying to Mr. LaTourette a little bit earlier, we have got to look at all of these allegations and 

try to separate them and get to the bottom line because the bottom 

line is justice. If something is systemic, if something is an aberration, you know, we have got to look at those kinds of things, and 

so I am going to. 

For my first round of questions, I want to go to you, Professor 

Dash. 

Mr. DASH. Yes, sir. 

Mr. CUMMINGS. Assuming you have reviewed CFR 33, part 20 

and the guidelines for discovery requests that were issued in 

March 2005 by Chief Judge Ingolia, do you believe that the guidelines present what might be termed a ′′valid′′ or′′accurate′′ interpretation of CFR 33, part 20? 

Mr. DASH. Well, let me be very measured, Mr. Chairman, in my 

answer. There is no question that a chief judge can set policy 

guidelines usually on administrative matters. In reading his guidelines on interpreting discovery under the part 20 rules, the 600 series, it seems to me that it is a message—if I were an ALJ, it is 

a message to sort of limit discovery as much as possible. 

There is another thing in it that causes me some question, and 

here, I defer to some of the better experts on their regs, but if you 

look at 20.103 of the regulations, it ends ′′absent a specific provision in this part, the Federal Rules of Civil Procedure control.′′ 

now, in the guidelines that were given, the chief judge, in the 

guidelines, says to ignore the Federal Rules of Civil Procedure, the 

discovery rules there, which are liberal. 

Now, obviously, I would say most agencies do not follow the Federal Rules of Civil Procedure, which are very liberal discovery, but 

my reading of these—unless there is a specific provision somewhere 

that says that the Federal rules are not available, if I am right in 

my reading, he is using this memo to change the regulations, 

which, of course, you cannot do that. You have to put it out for notice, et cetera, et cetera and public comment before you change it. 

17 

Mr. CUMMINGS. Let me just get to—I am sorry to interrupt. I 

want to get to this. 

Based upon what you just said, what you just said, how would 

that affect the scales of justice? In other words, if discovery were 

limited, more limited than, say, they are supposed to be, what happens then as far as the scales of justice, that is, Coast Guard/mariner scales? 

Mr. DASH. I would say it would create a problem for an Administrative Law Judge who thinks in a given case they should grant 

a little more discovery to a respondent, that if their belief is that 

the policy of the agency is not to give too much discovery, I think 

that inhibits it. Because let me see if I can explain that a little bit 

more, and I would defer to the Administrative Law Judges. A lot 

of this is so discretionary. An ALJ or a fact finder in granting discovery keeps in mind who is the respondent. Is he represented by 

a lawyer? Is he on his own? How complex is the particular facts 

here? How much has the government given to the respondent? And 

as I say, it is a very subjective determination. And as you can see, 

these kinds of determinations can be effective if the pressure is not 

to give too much discovery. And that concerned me. But it also concerned me that, in this particular memo or guideline, it seems to 

me changing the regulation, which of course you can’t do in a policy 

memo, and if I am correct, that basically the Coast Guard may very 

well be able to use the Federal Rules of Civil Procedure discovery 

to say in the guidelines to ignore it would be a change I think in 

the regs. But as I said, I’m not sure if somewhere in the regulations there is a specific proposal that says the Coast Guard in their 

hearings are not under the Federal Rules of Civil Procedure. 

Mr. CUMMINGS. Ms. Massey, do you want to comment on that? 

And one of the things that you said, and I want you to listen to 

this, Professor Dash and Mr. Hewig, one of the things, if I recall 

in your testimony, Ms. Massey, you said when you were a judge 

that sometimes there would be situations where you would order 

discovery and the Coast Guard just disregarded it or they would 

not present discovery and basically said, go take a hike. I mean— 

you go ahead. Those are my words. But that seems to be what you 

were trying to say. 

Judge MASSEY. Yes, sir. 

Mr. CUMMINGS. Which I think is incredible. 

Judge MASSEY. I thought it was pretty incredible myself, sir. 

There were two specific cases. I won’t mention the names; one 

where the respondent requested that I issue a subpoena. I believe 

the grounds for issuing the subpoena were reasonable and necessary, so I issued the subpoena. Time passed for the Coast Guard 

to comply with the subpoena, and they had not filed a motion to 

quash, which is in the regulations. They had done nothing. So I initiated a telephone conference. And during that conference, one of 

the investigating officers said, Well, Judge Massey, we are not 

going to comply with your subpoena; we are just not going to do 

it, because we don’t think it is right. 

There was another case where the respondent’s attorney requested permission to send interrogatories to the Coast Guard. And 

this was a fairly factually complex case. And after consideration, I 

granted the issuance of the interrogatories and issued an order 

18 

that they be served upon the Coast Guard and that the Coast 

Guard file their objections by a date certain. And if they were going 

to file answers, then that would have followed, say, a week later. 

I don’t remember the exact timing. The deadline passed for the filing of objections. They filed nothing. And then by the time the 

deadline came for the filing of the substantive answers, they filed 

objections. The respondent made a motion that I order them to 

make substantive responses, and I issued that order. And once 

again, they basically filed a document that was nonsubstantive and 

later told me, We are just—we don’t think you can do that, so we 

are just not going to answer those questions. 

Mr. CUMMINGS. And so what—I mean, very briefly, what happened after that? 

Judge MASSEY. Well, there was, in both of those cases, there was 

a motion for sanctions made by the respondent. And I ended up 

granting the motion for sanctions, and the complaints were dismissed. 

Mr. CUMMINGS. I see. 

Professor Dash, let me come back to you. Do you believe that the 

general purpose of rule changes made in the Coast Guard’s administrative laws since 1999 and included in 33 C.F.R., Part 20, was 

to limit discovery as the chief judge’s outline would seem to indicate or to expand them or leave them the same? 

Mr. DASH. Well, actually, in the guidelines, and I want to be fair 

with the chief judge, it seems to be a little inconsistent. He starts 

out in the guidelines indicating that there were limits to the discovery and that the regulation on the 600 part was intended to 

standardize and provide for discovery. When I looked through the 

rules, the rules to me have the standard boilerplate that you don’t 

waste time; you wish to have an expeditious hearing. 

But at the same time, I think it emphasizes that ALJs should 

have the discretion to grant discovery when they think it is necessary. For example, he, in the in the guidelines, he seems to want 

to ignore 20.103(b) which says, except to the extent that a waiver 

would be contrary to the law, the Commandant, the chief ALJ or 

the presiding ALJ may, after notice, waive any of the rules in this 

part either to prevent undue hardship, et cetera, et cetera. 

In other words, you have a rule here which recognizes that there 

should be a lot of discretion left to the ALJ in discovery as well as, 

obviously, in all procedures of the hearing. And in the guidelines, 

there seems to be an attempt to say, ALJs, well, don’t really—sort 

of ignore it in a way. And to me, it is an attempt to indicate that 

the scurry should be as limited as possible. Now, I don’t know what 

the problem was. I don’t know whether the chief ALJ had found 

that there was too much discovery and a waste of time in these 

hearings. And if so, I would probably have suggested or recommended that he modify the rules and put them out for comment 

to indicate that there should be more limitations. 

Mr. CUMMINGS. Is that the way that would normally be done if 

there was a necessity for a change in the rules, the way you just 

stated? 

Mr. DASH. Oh, yes. If you are going to change the rules, and I 

go back, again, to what I said initially, that under the regulations, 

it seems to say that the ALJs can use the Federal Rules of Civil 

19 

Procedure, the liberal discovery. And in the guidelines, he is saying, you can ignore the Federal Rules of Civil Procedure. That is 

a change in the regulations. And that has to be done under the 

APA by notice, comment, you know the standard procedure for rule 

making. 

Mr. CUMMINGS. Documents in possession of the Subcommittee indicate that some Coast Guard personnel were concerned about 

Judge Massey’s conduct at administrative hearings. If concerns are 

raised about a judge’s demeanor in a courtroom or about the 

judge’s application of precedent or regulations to the conduct of a 

hearing, how should those concerns be raised, and how should a 

chief ALJ properly examine and address such concerns? Would it 

be appropriate, for example, as apparently occurred in the Coast 

Guard, for staff members from various Coast Guard units, including both the units that investigate cases, went before the ALJ system, as well as staff of the ALJ system and the Commandant to 

hold a meeting to discuss the management of suspension and revocation cases, even if the cases are not named in a general discussion of issues that are known to be pending in open cases appropriate; is that appropriate in such a meeting among such parties? 

Now, Mr. LaTourette talked about a meeting back in 2005, and 

the memo coming out of it and certain language at the beginning 

of the meeting. It says, at the onset of the meeting, guidelines were 

provided to the meeting attendees as information concerning active 

cases that could result in prohibited ex parte communications 

should not be discussed. Issues could and were discussed without 

any reference to a particular case. No member of the ALJ program 

staff is assigned to any D8 related cases. 

Even if you have put those guidelines out, meaning you state 

that at the beginning of a meeting with those parties coming together, you talked about when you have these ex parte communications in your statement, your opening statement, you said there is 

a denial of due process. And I think Mr. Hewig alluded to that, too. 

Is that a problem? I mean, you can say—I mean, you can say anything you want to say at the beginning of a meeting, say, we are 

not going to do this. Is the meeting in and of itself with certain 

parties a problem? 

Mr. DASH. I find two problems with the meeting. The first problem is, and, again, the record should correct me, my understanding 

is one of the people who was present would be handling the appellate aspects of these hearings. If that is true, even though they 

were not referred to any specific case, obviously the complaints 

that would indicate that X occurred at a hearing, or whatever it 

was, would come up in that record, because my understanding was, 

at the time, there was still a case or two that was in the appellate 

process. If I am wrong on that analysis, my apologies. But that is 

my understanding, that that was part of it. 

The other thing that bothers me about this is that when prosecutors conferring with those who have a certain authority over a 

judge, like an administrative judge, let’s say in our circuit courts 

in Maryland, that is not the way to do it. Under the APA it specifically states that if an agency has a legitimate grievance against an 

ALJ that they think whatever they are doing is, as in that memo 

there was some rather serious criticism of the ALJ, if they believe 

20 

that, they can file charges with the Merit Protection Board, which 

will then, of course, notify the ALJ, and they hold an APA hearing 

to see what, if any, discipline should be given. 

I sort of think there is a problem with the independence of the 

ALJ if you can have meetings of prosecutors with those who have 

certain control over the ALJ where they can protest and complain 

about their actions. The complaints might be legitimate; I don’t 

know. The ALJ in fact might have been doing things that they 

have a legitimate argument against them. But they should be filed 

I think with the Merit Protection Board if it is serious enough to 

raise. If it isn’t serious enough to raise, then there shouldn’t be a 

meeting. 

Mr. CUMMINGS. But is that considered a serious violation? I 

mean, would you consider it a serious violation, that is an ex parte 

communication? 

Mr. DASH. If one of the members of that meeting in fact was 

going to be handling an appeal of one of the cases which had already been decided by the ALJ but was on appeal, if he was at that 

meeting, yes, I would consider that very serious. Because the whole 

idea of the appeal is for the appellate judges or the agency appellate system gets a fair reading of what happened at that hearing 

below. And if he is participating at a meeting where he hears X 

and Y and Z occurred, even though they don’t name the case, obviously those facts will come up. 

Mr. CUMMINGS. And what if these folks were staff people as opposed to the actual person, say, hearing the appeal? 

Mr. DASH. Well, if there is—— 

Mr. CUMMINGS. Does it extend to them, your same comments? 

Mr. DASH. Yeah. If there is a meeting of let us say the prosecutorial staff, the IOs or whatnot, I see no problem. If they want to 

sit around and say, there is an ALJ here, you got to watch out; 

they are no good, or whatever they want to say, they can, or recommend, after their meeting, recommend to the agency itself to file 

charges against the ALJ to the Merit Protection Board. So that 

would be different. 

My concern with this meeting was, again, whether there was 

someone involved in the appellate process participating in the 

meeting. If these were just pure staff, part of the executive section 

or the prosecutorial section, well, certainly they are free to have 

meetings to discuss, just as prosecutors discuss judges. But there 

is a difference when you are discussing these kinds of things with 

someone who is going to be part of the decision-making in the appellate system. 

And also there is a problem if that kind of complaint is sent to 

anyone who has authority over the ALJ. So let us assume that the 

memo ended up in the hands of the chief ALJ, that, to me, would 

be a problem. 

Mr. CUMMINGS. Mr. Hewig, did you have a comment on that? 

Mr. HEWIG. Mr. Chairman, I would add to that that any ex parte 

contact between the agency and its judiciary that is designed to affect the outcome of cases, whether currently before them or not, 

ought to be objectionable as well. 

Mr. CUMMINGS. Mr. LaTourette. 

Mr. LATOURETTE. I agree with that statement. 

21 

And Professor Dash, just so I am clear, because, again, ex parte 

communications on pending matters that have the ability to affect 

the manner, appeal or anything else are obnoxious and shouldn’t 

occur. 

It is my understanding, however, and if the record, and that is 

why I wish we had somebody who was actually at the meeting talking about the meeting today, because it is my understanding that 

what was being discussed at the meeting wasn’t cases; they were 

objections that the prosecuting officials had with the conduct of a 

particular ALJ. And they were complaining about that she was 

abusive, that she was derogatory in her remarks, things of that nature. Do you have the same kind of objections to that kind of meeting? 

Mr. DASH. Again, if it is among the staff. In other words, there 

is nothing wrong with the IOs getting together or prosecutors getting together to talk about their problems with judges. My problem 

is that if you have anyone who is going to be part of the decisionmaking, and again I am uncertain, but my information is there was 

someone in the appellate section, he can, from these complaints, 

when he later gets the record of the case that he is going to handle 

on appeal, I don’t say it is definite, but I could perceive or even say, 

hey, is this what they were talking about as he looks at the record? 

Mr. LATOURETTE. And I think I understand your concern. And 

again, I would hope we could have someone who was actually at 

the meeting. 

Judge Fitzpatrick, you were in the Baltimore Sun article; you 

know that, right? 

Judge FITZPATRICK. Yes, sir, I read it. 

Mr. LATOURETTE. And given the fact that you called it yellow 

journalism, I think in the your opening statement, did you particularly read the part about that? 

Judge FITZPATRICK. Yes, sir, I did. 

Mr. LATOURETTE. And I think that that observation, let me find 

it real fast, is sort of, they basically said you weren’t fair in that 

case. And then you have the great journalistic technique of somehow saying you wouldn’t comment to them, so I guess because you 

wouldn’t talk, you must be a bad guy. Would you care to talk about 

that particular discovery issue that you had before you without 

talking—whatever you feel comfortable about. But basically they 

are saying that the rules of discovery weren’t followed, that the 

Coast Guard wanted to have some kind of trial by surprise, and 

you were not right in the way that you ruled on the discovery matter. 

Judge FITZPATRICK. The irony of it all, Mr. LaTourette, is there 

was a reporter in the hearing the entire time from the local Savannah paper who wrote the article and said—the headline of the article was, ′′The Judge Was Firm But Fair.′′ that was the man that 

was in the hearing the whole time. What happened in that case 

was that it began about April, I think, and the complaint was filed, 

and 20 days later, an answer. And then we had a prehearing conference on the basis of motions filed by counsel. The depositions, 

some were granted. I can’t remember all of them. But I granted 

various depositions, one which was for a docking master, who was 

22 

the principal tugboat operator there, is usually tugboat operator, 

and he was on the vessel that was at the dock. 

But I should mention, this was a very serious case. This was a— 

the charge in the case, there were two charges of misconduct and 

two charges of negligence. I dismissed one charge of, one of each 

of the charges and found proof of one of each of the charges. Essentially the case involved a large tanker over 600 feet going at 14.1 

knots down a narrow channel of the Savannah River past the LNG 

unloading facility where a tanker was actually unloading liquid 

natural gas. All of the testimony in the case was no one goes by 

that facility at less than—at more than their steerage way. It is a 

very, very serious possibility of danger. 

Mr. LATOURETTE. I think the wake caused the gangways to collapse. 

Judge FITZPATRICK. It is lucky no one got killed. Not only did the 

gangway collapse, but all the lines were severed. The vessel broke 

all its lines and was then recovered as it was moving away from 

the dock. The case began in April. As I said, we had a prehearing 

conference when motions were filed for discovery. And I granted 

some of them and denied some of them. I think I granted those 

ones. And then the case proceeded in a normal fashion. And then, 

under the regulations, everybody is required to exchange the identity of witnesses and send in all the exhibits 15 days before the 

hearing. So 15 days before the hearing, the Coast Guard did that, 

and so did counsel for the respondent. Eight days before the hearing, another series of depositions was required. Eight days before 

a hearing, including weekends, provides no opportunity for anybody 

to get together, transcribe the depositions and everything else. In 

addition to that, the rules require 10 days for a response by the 

other party. I would never grant depositions 8 days before a hearing. It would have delayed the hearing. So I indicated it was unduly burdensome. And also the focus of the case was on the pilot. 

And the charges were negligence and misconduct. As I said, half 

the case was found proved. Importantly, the part of the case that 

was found proved was that he was negligent in the speed with 

which he went past that facility. I suspended his license outright 

for 8 months. The Coast Guard was seeking permanent revocation. 

I went down there again after I issued my—I came back, had the 

hearing, came back and issued my decision. But I wasn’t sure what 

to do with him because he was kind of an outsider a little in the 

community. The State pilots seemed to be lining up against him. 

So I went down, and I had a hearing on the sanction. And he testified, and he convinced me that this was oneinstance, but the other 

instance wasn’t bad. So I felt that because of the seriousness of the 

event and that I suspended him outright for 8 months, I thought 

it was a very fair result. 

Mr. CUMMINGS. Judge Massey, I just want to go back to you for 

a second. 

And Mr. LaTourette, we will go as long as we have to go to get 

to the bottom of this. 

I wanted to be clear on what you are saying, because I don’t 

want it to just be passed over one way or the other. But I want 

you to at least get out what you are trying to say. There was a 

meeting that Mr. LaTourette referred to on the, I guess it took 

23 

place in February 2005. And then, lo and behold, the guideline 

memorandum comes from the chief judge about a month later; is 

that right? Is that accurate? 

Judge MASSEY. The guideline memorandum was issued on, I believe, March 7, and the meeting took place on February 24. 

Mr. CUMMINGS. Now, tell us what your concerns are? Because in 

your written testimony, you imply that the meeting that took place 

on the 24th may have been more, not just about your conduct, but 

about a little bit more than that. And then, lo and behold, this policy letter suddenly appears addressing a number of the issues that 

were apparently discussed in the meeting; is that right? 

Judge MASSEY. Yes, sir. May I give you just a little more background? 

Mr. CUMMINGS. Please. 

Judge MASSEY. In December of 2004, I became aware by speaking with Ken Wilson, who was at that time an attorney working 

out of the Baltimore office, that the MSOs at Morgan City and Mobile had put together a list of complaints about the way I conducted 

my hearings. They didn’t like the way I looked at the IOs. They 

didn’t like me leaning back in my chair during testimony. They 

thought I was just across the board biased in favor of respondents, 

a whole litany of things. In total, I think there were seven pages 

of complaints. Mr. Wilson sent me a copy of those complaints. And 

he and I had a number of telephone conversations about what to 

do to resolve this conflict that had arisen between myself and the 

personnel at Morgan City and Mobile. 

I offered to meet with the person who supervised all the investigating officers in Washington to try and iron some of this out. Mr. 

Wilson didn’t think that that was a good idea. It seemed to me we 

needed to get some sort of dialogue going because my opinion was 

that they were upset with me because I was, on occasion, not in 

every case but on occasion, ruling in favor of respondents. And that 

had—I heard my first cases in August of 2004. And by the end of 

December, I don’t know, I had heard three, four or five cases, I 

don’t remember. And the discovery conflicts were just beginning, I 

believe late December, early January of 2005. 

So when Mr. Wilson called to tell me that this meeting had been 

set up in New Orleans, he said it has been agreed that the IOs are 

going to come to this meeting, and they are going to air their grievances about you, your demeanor in the courtroom. And I am going 

to be there, George Jordan is going to be there, and Megan Allison 

is going to be there. Mr. Jordan is the director of judicial administration. 

Mr. CUMMINGS. What was the purpose of Mr. Wilson telling you 

all this? 

Judge MASSEY. Well, he was—I mean, I can’t speak for him, but 

the chief judge had told me back in November, when he had first 

caught wind of the complaints, that he wanted me to talk to Ken 

about all of the stuff, because Ken was just a reasonable person. 

And the chief said that he didn’t really want to be in the loop. So 

Ken tells me this meeting is going to take place, that he is going 

to be there; George Jordan is going to be there; Megan Allison is 

going to be there. And I was out of town on a case. There was 

never any question about my attendance. 

24 

Well, Mr. Wilson called me and he told me, he said, I’ll call you 

after the meeting and let you know how it went. So on February 

28, he calls me. And he says, well, we were really surprised when 

we got there because, first off, we were surprised by who was attending. And second off, we were surprised because, and these are 

his words, and I quote, discovery was the paramount issue. And 

Mr. Wilson told me that they did, in fact, discuss by name three 

of the contentious discovery cases, or I should say cases where discovery was contentious, that I had ongoing at that time. And he 

said they specifically complained, among other things, that I granted too many depositions and interrogatories. And they made some 

other complaints about saying that I rode roughshod over the IOs 

and that I humiliated them. 

Mr. CUMMINGS. Let me say this, but I am looking at the memo 

which was introduced by my friend Mr. LaTourette, and I am just 

quoting from page 2. And it verifies what you just said. It says here 

in part in paragraph 7, at the end of paragraph 7, it says, The 

judge will raise issues and lead the respondent in filing discovery, 

interrogatories, depositions and subpoenas. In addition, the judge— 

talking about you—allowed further discovery before the completion 

of initial discovery as provided in the regulations. It goes on to say 

in the next paragraph, it was expressed that subpoenas do not 

have to be complied with unless they are relevant to the case, and 

it goes on. So, go ahead. I just wanted to let you know that the 

memo that was introduced by Mr. LaTourette is verifying; although 

we don’t have a witness from the meeting, we do have the memorandum. And so a lot of the things that you just said with regard 

to discovery, what Mr. Wilson told you was discussed, are verified 

in this document. 

Judge MASSEY. And you are looking at a document that I have 

not seen. 

Mr. CUMMINGS. Okay. Fine. 

Judge MASSEY. Just so you know. 

Mr. CUMMINGS. This makes it even more credible. Go ahead, 

since you haven’t seen it. 

Judge MASSEY. I’m sorry, you want me to go on with? 

Mr. CUMMINGS. I want you to tell me—you made some pretty 

strong allegations, Judge Massey. And I want to get to the bottom 

of them. You have—in your written testimony, basically what you 

have said is that a meeting took place in February, and a lot of 

things were discussed, including discovery, the way you conducted 

discovery. You have said that you felt that you were—there were 

efforts being made to limit your ability to be independent and pursue due process as you felt that it was your duty to do. And then 

you said that then when the judge’s guidelines came out, it sounded as if the very guidelines that he put out, that Professor Dash 

just talked about, came directly out of that meeting. Because it was 

just so much in sync with what you had—it was your understanding what happened in that meeting. So I am just trying to get 

to the bottom of it. I want you to be brief. But I want you to just 

tell us what you—you have come a long way from San Antonio, 

Texas, with a sprained angle, and we thank you for that, but we 

want you to get out what you want to say. Because I don’t want 

25 

it left here—you leave here in a situation where you have not been 

able to tell your story. I don’t want it to be just passed over. 

Judge MASSEY. All right. One point, sir, that I think is important 

for the Committee to examine. There was a person present at this 

meeting, a Lieutenant Commander Keane, I think his name is KE-A-N-E. He was a member of the District 8 legal staff. Lieutenant 

Commander Keane had been assisting the Morgan City investigating officers by drafting pleadings in at least two of these cases 

that were under scrutiny, the responsive pleadings; in other words, 

the response to interrogatories, that type thing. He was making the 

legal arguments about why it was improper for me to grant interrogatories or depositions or issue a subpoena or whatever. If you 

look at the language that are in those pleadings and you look at 

the memo that issued out of the chief judge’s office on March 7, the 

theories about how the discovery regulations should be interpreted, 

and even some of the language, is the same. 

So, in other words, we have a document coming out of the chief 

judge’s office on March 7 that tracks incredibly, too much for it to 

be a coincidence, with pleadings that were filed in cases pending 

before me 1, 2 months earlier. And Mr. Wilson told me that Lieutenant Commander Keane, quote, seems to be driving a lot of this 

stuff. Now, this is the same young man who, when I had an onthe-record conference in a case on March 22 and I was questioning 

him about some ongoing discovery issues in that case—this is the 

third case of the trilogy—it came out during that conference that 

he did not know that mariners had a right to due process at S&R 

hearings; he didn’t know that. And it clicked then in my head, well, 

now I understand why he is making all of these ridiculous arguments in these pleadings, because they never made any sense to 

me. And when he finally admitted to me under questioning that, 

no, due process is not applicable to these proceedings, then I went, 

oh, that is the problem. He doesn’t know that. And then I spoke 

to his commanding officer the next day, who dropped in on me, 

Commander Simons, who, once again, was trying to get me to talk 

about how I viewed discovery. And I refused to do so because I 

thought it would be an ex parte conversation. He tries to stick up 

for this guy saying, oh, well, you know, he misunderstood. And I 

said, oh, no, no, no, he didn’t misunderstand; he just flat doesn’t 

know that due process applies to these hearings. And I was just 

stunned. 

Mr. CUMMINGS. I got you. 

Professor Dash, assuming what Ms. Massey said is accurate, you 

have a meeting with the parties that we have already described, 

the next thing you know you have got a memo that comes out 

seeming to be right in line with cases that are—I guess they were 

still pending, Judge Massey? 

Judge MASSEY. Yes, sir, that’s correct. 

Mr. CUMMINGS. Does that concern you? 

Mr. DASH. Yes it does. I will admit I am not objective on this. 

I am a little prejudiced. Back in the 1970s, when I participated in 

some of the hearings on independence of ALJs, the big fight was 

to take away from the agencies any authority to discipline ALJs. 

And it even went so far that pay was again given to the OPM, even 

to the extent that the pay scale of a specific ALJ, recommendations 

26 

of the agency would be ignored by the OPM. That was in the law. 

Congress took that out in 1999. It is long-winded, but what I am 

getting at is that the ALJ’s independence is very much dependent 

on the fact that the agency does not have any real discipline authority over them; that if they have a problem, the place they go 

is to the Merit Protection Board claiming this ALJ is not doing 

their job. 

From what I see here, if true, and I have got to stress if this is 

really occurring, an ALJ feels under the pressure that the agency 

can control their future and their destiny, depending on how they 

act as an ALJ. And, yes, that troubles me a great deal, because this 

can impact on their career, their pay and possibly even their job. 

And that is very dismaying because that goes against the whole 

idea of an APA hearing or what the ALJ stands for. 

Mr. CUMMINGS. Did you have a comment, Mr. Hewig? 

Mr. HEWIG. I would only add, Mr. Chairman, that as a practitioner before those ALJs, I would be very troubled if I were to conclude that that type of interference or influence were extant. 

Mr. CUMMINGS. All right. We are going to break now. We have 

got three votes. We should be back here in about 20, I guess 20 

minutes. 

[Recess.] 

Mr. CUMMINGS. The gentleman will resume the hearing. Everyone will be seated, please. 

Mr. LaTourette. 

Mr. LATOURETTE. Thank you very much, Mr. Chairman. 

And thanks to our witnesses for your patience while we conducted business on the floor. 

I want to explore two areas that I talked about in my opening 

remarks. And the first is this whole issue of settlement. And I 

heard what you said, Judge Fitzpatrick, about how you dealt with 

the case that was in the newspaper article. But the allegation has 

been made that we have mariners who are copping pleas, if you 

will, because they are so afraid of the system, and they are thereby 

being forced into settlements. And I quoted part of the Federal regulations. It indicates that, in making a settlement, the mariner 

must make an admission of all of the pertinent facts in the complaint against him to reach that settlement. And so I guess, first, 

I would ask the three former Administrative Law Judges, am I correct in that, that in order to enter into a settlement with the government, the mariner needs to make an admission of the facts in 

the complaint against him? 

Judge FITZPATRICK. Yes. 

Mr. LATOURETTE. And do you have a different answer, Judge 

Massey or Judge Denson? 

Judge DENSON. I didn’t have experience under that rule. 

Mr. LATOURETTE. Okay. 

And Judge Massey. 

Judge MASSEY. You are correct. May I add a comment? 

Mr. LATOURETTE. Sure you can say whatever you want. 

Judge MASSEY. You were a public defender. 

Mr. LATOURETTE. I was. 

27 

Judge MASSEY. I was a public defender. We all know that people 

sometimes say things are true that are not just to get out of the 

mess that they are in. 

Mr. LATOURETTE. Sure. And I think I brought that up with the 

Alfred pleas. 

Mr. Hewig, did you have something you wanted to say about 

that? 

Mr. HEWIG. I did, Mr. LaTourette. I have worked from settlement agreements that the Coast Guard prepares, not from the actual regulation. They make citations to the regulation. But my 

practice and experience has been, and I have so advised my clients, 

that the only admission they are obligated to make is to the jurisdiction of the Coast Guard over the license. And beyond that, I 

have specifically advised them, and it has been my practice, that 

in settling a case with the Coast Guard, you are not admitting to 

the truth of the specific allegations in the complaint. 

Mr. LATOURETTE. I appreciate that very much. To the three 

former Administrative Law Judges I would pose the question—because this is a serious allegation in this newspaper article; it is a 

serious allegation in other venues as well—was it your experience, 

Judge Fitzpatrick, that mariners were being—entering into these 

agreements because they were afraid that the system was stacked 

against them? 

Judge FITZPATRICK. No. 

Mr. LATOURETTE. Judge Denson. 

Judge DENSON. When people agreed to the complaint, I never 

sensed that there was a reason behind, that they were afraid or 

they were being forced into it. I think they were just trying to avoid 

further, I don’t want to say litigation, but further processing. 

Mr. LATOURETTE. And Judge Massey, your observations on that. 

Judge MASSEY. I would say that, some of the time, they were 

agreeing to it because they thought it was a fair settlement. But 

I did have cases where there was an intimation that the person 

was afraid to go forward with a hearing because they were either 

intimidated by the process or they had been told by an investigating officer that, if you will settle this case, I’ll give you X. If 

you take this case to hearing, we are going to ask for revocation. 

Mr. LATOURETTE. And then that, to me, is a plea bargain. But 

the question I would have to each of you is, I would think as a 

judge, I mean, when we would do Alfred pleas, and I don’t have experience like you have experience, but when we would do Alfred 

pleas, if the judge began to get squeamish and thought that there 

was something funny going on, don’t you have the right to reject 

that settlement agreement? 

Judge MASSEY. No. Under the regulations, if the settlement 

agreement complied with the language required by the regulations, 

we did not have the authority to go beyond, or excuse me, behind 

that and look into the allegations themselves. We had no authority 

to do that. 

Mr. LATOURETTE. Judge Fitzpatrick, if you as an ALJ reached a 

conclusion or had a suspicion that the person had entered into a 

settlement agreement for some illegal purpose, they have been 

bribed or made payment of money, you didn’t have the authority 

to reject that settlement agreement? 

28 

Judge FITZPATRICK. You have the authority to reject the settlement agreement. You have that distance in broad discretion. It is 

not true you don’t have the authority. 

Mr. LATOURETTE. Let me talk about the hemp oil business, because it is my understanding that the brother of the reporter for 

the Baltimore Sun who became the unhappy mariner who then 

went to another reporter at the Baltimore Sun to produce the justice capsized article, the defense in that case had to do with this 

hemp oil business. And again, in my opening remarks, I talked 

about the fact that, in the Code of Federal Regulations, because the 

allegation is that somehow the chief judge has gone on a lark and 

has made up a standard relative to hemp oil being a defense for 

a positive test for marijuana by a mariner, based upon your knowledge to all three of you, is my understanding correct that the Department of Transportation has included in the Code of Federal 

Regulations a specific admonition that you can’t use hemp oil as a 

defense for a positive marijuana test? 

Judge FITZPATRICK. I think, as you indicated, Mr. Representative, yes. 

Mr. LATOURETTE. How about Judge Denson? 

Judge DENSON. I have not much understanding of that. But my 

understanding is that applies to a medical review officer and not 

necessarily to an Administrative Law Judge at a hearing. 

Mr. LATOURETTE. Well, Mr. Chairman, I would ask unanimous 

consent that that portion of the Federal regulations be admitted 

into the record. 

[Information follows:] 

29 


37015.015
30 

Mr. CUMMINGS. So ordered. 

Mr. LATOURETTE. And then, Judge Massey, to you, do you have 

a different understanding? 

Judge MASSEY. My recollection is that, when I went to an initial 

training session, actually the month before I officially became a 

Coast Guard employee, a case with that defense had just been remanded by the NTSB to the Coast Guard. And there was some discussion about the hemp oil memo at the conference. And my recollection is that there was a lag time between the date that the chief 

judge issued the hemp oil memo, which I believe was in 2001, and 

the date that the Department of Transportation amended its regulations. I can’t swear to the specifics of that, but I think there was 

a lag time. 

Mr. LATOURETTE. Okay. Lag time notwithstanding, does anybody 

not believe today that the code of regulations in Title 49, according 

to the DOT, indicates a more direct view as an Administrative Law 

Judge that you can’t consider the hemp oil defense on a drug test? 

Judge FITZPATRICK. No question. 

Judge MASSEY. The problem with that, sir, is that if the C.F.R. 

Was amended in 2003 and you have a case before you that the act 

occurred in 2002, you can’t retroactively apply that law. 

Mr. LATOURETTE. I am not going to quibble with you on that. I 

am saying today if a mariner has a positive marijuana test, does 

anybody dispute the fact that you can’t use the hemp oil defense? 

Mr. Chairman, I would also ask unanimous consent to put into 

the record the National Transportation Safety Board judgment or 

opinion of June 11, 2003 in the case of Thomas H. Collins v. Christopher Dresser if that is all right with you. 

Mr. CUMMINGS. Can we get a copy? 

Mr. LATOURETTE. I will be happy to give you a copy. 

Mr. CUMMINGS. All right. 

[Information follows:] 

31 


37015.010
32 


37015.011
33 


37015.012
34 


37015.013
35 


37015.014
36 

Mr. LATOURETTE. And then pending my unanimous consent request I would just indicate that, I don’t know if this is the case that 

you were talking about or not that was the subject of discussion, 

but in this particular matter, my understanding is it was remanded 

by NTSB back to the Commandant, because, in that case, the 

judge, Judge Archie Boggs, indicated that, at dinner after he had 

heard the case, he found out that his son, who is a lawyer, actually 

represented the hemp oil company who was involved in a lawsuit. 

And there was some internal discussion about whether or not he 

should have recused himself. The conclusion was reached that he 

shouldn’t have. And NTSB then remanded it saying, do you know 

what? You probably shouldn’t have sat on that case, and then it 

went to another judge who was mentioned in the Sun article. So 

if the allegation is that somehow the system is stacked and fixed 

against mariners, I think that this guy was treated—I mean, it is 

working out for him in that regard. And that is why, subject to you 

getting a copy of it, Mr. Chairman, I would like to have it admitted 

into the record. 

Mr. CUMMINGS. So ordered. 

Mr. LATOURETTE. And then the last question, I would ask you all 

if you are familiar with a former Administrative Law Judge by the 

name of Lawson? 

Judge FITZPATRICK. Yes. 

Mr. LATOURETTE. Good guy? Bad guy? 

Judge FITZPATRICK. Judge Lawson’s position was misstated earlier in this proceeding. Judge Lawson, he was a retired judge who 

was taken on by the program for 1 year under the 1 year contract. 

He didn’t know hardly anything about the program, quite frankly. 

Mr. LATOURETTE. Judge Denson, did you serve with Judge 

Lawson? 

Judge DENSON. No, I did not. 

Mr. LATOURETTE. Judge Massey? 

Judge MASSEY. I met Judge Lawson at that June 2004 training 

session I just mentioned, and then I never saw him again. 

Mr. LATOURETTE. And Judge Massey, you mentioned in your, I 

assumed it was a hypothetical case, that you talked about where 

the merchant mariner was in the headquarters and so forth. And 

I made a note that you said that the Coast Guard official suspended his license, took his license away from him prior to an adjudicatory hearing. Did you say that? 

Judge MASSEY. No, sir, I did not. I said that the hearing took 

about 30 minutes, and at the end of the hearing, the judge announced a suspension for 6 months. 

Mr. LATOURETTE. I must have misunderstood you. Because I 

thought you said, prior to the hearing, that the officer took his credentials away. 

Judge MASSEY. In my scenario, that is true. On cases the IOs do 

take the mariner’s credentials upon the filing of a complaint, that 

does happen. 

Mr. LATOURETTE. Again, I am trying to learn here. It is my understanding that the credentials were not suspended during the 

proceedings. 

Judge FITZPATRICK. There is a—in the normal case, that is correct; they are not suspended. But there is a specific provision in the 

37 

regulations which is called an expedited requirement for an expedited hearing, and it is authorized under 7702, where the Coast 

Guard can, because of safety reasons, somebody being under the influence of drugs or alcohol, can go aboard a vessel and take that 

individual’s license or document. If they do that, then they must 

immediately contact the docketing center, and the hearing must be 

held within 30 days. So it is an expedited procedure, and it is to 

protect safety of life and property at sea. 

Mr. LATOURETTE. And then the last question I would have, the 

reason I asked you about Judge Lawson, he is quoted in the Baltimore Sun story about the memorandum issued by the chief judge. 

And his observation, quoting directly from the article, Massey’s experience contrasts with that described by former Judge Lawson 

who said he suspects that what his former colleague perceived as 

pressure was actually Ingolia’s attempts—perhaps awkward or 

heavy-handed—to counsel a judge that he might have viewed as a 

rogue. My experience with Judge Ingolia was that he left me alone 

to do what I needed to do. 

Do you think that the chief judge considered you to be a rogue. 

Judge MASSEY. He never used the word rogue with me, sir. He 

told me I was a problem. 

Mr. LATOURETTE. Mr. Chairman, thank you. I think, based upon 

Judge Massey’s extensive observations about this meeting that she 

didn’t attend, it really would be nice if we could have Mr. Jordan 

and Mr. Wilson at a subsequent event. 

Mr. CUMMINGS. Thank you very much. 

I want to make sure that we maintain the very balance that we 

said that we wanted the ALJs to maintain. And I want to make 

sure it is maintained in this hearing. 

And therefore, I want to go back for a moment. And Judge 

Massey, just tell us briefly about your credentials. 

Judge MASSEY. I graduated from undergraduate SMU in Dallas 

in 1974; law school, 1977, at SMU. Opened my own law office initially; did that for a few years. Associated myself with another lawyer who did State defense work. Went back out on my own. Worked 

with the Department of Energy in the special counsel’s office for 6 

and 1/2 years. Was a State prosecutor for 4 years. Went back out 

on my own. Associated myself for 20 months or so with a lawyer 

who did exclusively Federal white collar criminal defense work. 

Went back out on my own. Became a public defender for 2 years. 

That was the first 20 years of my licensing. 

And then, in September of 1997, I was picked up as an ALJ for 

Social Security. Worked for them until September of 2001 when I 

became employed as an ALJ for the Federal Energy Regulatory 

Commission here in Washington. Left that job to take the Coast 

Guard job in July of 2004. 

Mr. CUMMINGS. I just wanted to have some background there. 

And I am going to ask you some questions in a moment. I want 

to go back to some of the things that you have said. 

But right now, I want to address some questions to Professor 

Dash, and perhaps Mr. Hewig. I am looking at a—in a few minutes, we are going to have testimony from the Coast Guard. And 

one of the things that they are going to say, Rear Admiral Salerno 

is going to say, is that, and this is from his written testimony, is 

38 

that there is a certain level of independence. And he basically said 

this, Mr. Dash; that these ALJs are supposed to have—let me just 

quote a piece of his testimony, because I want you to comment on 

this. He says, in 1999—now this is the Coast Guard. You will probably be gone since you have overstayed, I am sure, your allotted 

time. But he said, the procedure rules for handling Coast Guard 

ALJ cases were updated to reflect the best practices in administrative law. These new rules were based on the model rules of administrative procedure proposed by the administrative conference of 

the United States and new procedural rules developed by the Department of Transportation. 

Now, this is what I just want you to comment on. The Rear Admiral says the intent of this update was to provide additional due 

process protections and transparent and consistent procedures to 

both the mariner and the suspension and revocation process. For 

example, the new rules provided for modern motions practice, expanded discovery and detailed procedures for handling evidence 

and conducting hearings, end of quote. When you look at the—and 

then I want to go briefly to the letter, I guess memo, memorandum 

dated March 7 from the chief judge to the other judges. And it 

says, an ALJ should not rely on Federal Rules of Civil Procedure 

for discovery matters. You are familiar with that memo, are you 

not? 

Mr. DASH. Yes, sir. 

Mr. CUMMINGS. I don’t want to take anything completely out of 

context, but you know the context I am sure. 

Mr. DASH. It is his guidelines; I believe it is. 

Mr. CUMMINGS. Yes, yes. It seems to me that—first of all, is Rear 

Admiral Salerno correct in his statement? Do you agree with that 

statement? 

Mr. DASH. To the extent that he is indicating that they want to 

give more due process and that they want to give good discovery, 

yes, I have no objection to it. 

Mr. CUMMINGS. And then, when you go to the guidelines for discovery request written by the chief judge, and that portion that 

talks about not relying on Federal Rules of Civil Procedure, it 

seems like there is a—they don’t seem to go hand in hand. Because 

I assume that the Federal rules are broader with regard to discovery. The chief judge is saying, you know, basically they don’t 

apply, I guess, to these cases. Am I missing something. 

Mr. DASH. No, you are right. He does say that the ALJ should 

ignore the Federal Rules of Civil Procedure. As I indicated before, 

I was puzzled by that because the regulations seemed to imply that 

they can use the Federal Rules of Civil Procedure. And as you indicated, Mr. Chairman, the Federal Rules of Civil Procedure discovery are pretty vast and very liberal. In fact, I would not even 

recommend that agencies should comply with them. They go perhaps too far, depending on what the agencies need and want to do. 

But the indications from which you just read to me is that the purpose of the regulations and their new rules was to expand discovery and expand the procedural due process for the mariners. 

The memorandum or guideline, and that is what bothered me a 

bit about it, seems to be saying that the regulations were designed 

to limit in the area of discovery particularly. To limit discovery, or 

39 

at least he was saying that should be the interpretation, I think, 

if so, that should be done by frankly doing it in the regulations. I 

might add, there is nothing wrong; in other words, if the Coast 

Guard wishes to limit discovery to some of the more basic things, 

they can do it by regulation as long as they don’t interfere with the 

procedure of due process. 

Mr. CUMMINGS. Let me ask you this, Professor Dash. Does any 

agency allow its officers to refuse to comply with a subpoena? 

Mr. DASH. I was shown during our break a memo, or I guess it 

is a report, which does surprise me, in which, apparently, the Coast 

Guard was saying they were not going to comply with a subpoena. 

That does surprise me a great deal. Normally, of course, you would 

file a motion to quash a subpoena. I understand that, in the Coast 

Guard, there is no interlocutory appeals, meaning that they can’t 

appeal if they lose with the ALJ immediately to the Commandant. 

But it would seem to me that you just don’t refuse to comply with 

a subpoena. 

Let me explain that a little bit more, because, way back in my 

distant past, I have handled hearings for the government. And 

even when you think that a subpoena by the ALJ really is not relevant, you comply unless, unless it is really onerous, that they 

want a room full of—in other words, that you have an extraordinary circumstance. But normally, you just comply with the subpoena. To me, to say to an ALJ, I am not going to comply, is, I 

think, demeaning and undercuts, of course, what an ALJ stands 

for. So unless there was some really good reason, such as it would 

be almost impossible to comply with it, for them to say to the ALJ, 

we refuse to comply is bothersome. 

Now, there are sanctions in the rules as to what the ALJ can do, 

such as taking the negative imprints or proving what was attempted to be proved by the discovery. But if that doesn’t work, because I don’t even know what the evidence is that is being asked 

for, they can, in the interest of justice, actually dismiss. Now, that 

is not in the sanctions part of discovery. But you will find, in 103, 

it does say that the ALJs, as well as the Commandant, can, unless 

it is against the law, more or less waive the rules and take whatever action that they deem necessary. So, to me, the ALJ, if I was 

in an ALJ’s position and the government refused to comply with a 

subpoena without having really a fairly good reason, certainly dismissal would be the answer. And of course, then the government 

can appeal that up to the Commandant, as I understand it. Now, 

it is long-winded, but I never have frankly heard of the government 

refusing to comply with a subpoena of an ALJ unless, again, you 

have extraordinary circumstances. 

Mr. CUMMINGS. Professor Dash, Mr. Hewig, I always tell my office, tell me what, so what and now what. And Mr. Hewig talked 

about what, so what and the now what. And he made some suggestions. Do you remember what he said about his suggestions? Does 

he have to repeat them? Because I wanted to get your comments 

on his suggestions as to how to remedy some of these situations, 

if appropriate. 

Mr. DASH. I would feel more comfortable if I could hear them 

again. 

40 

Mr. CUMMINGS. Why don’t you briefly, Mr. Hewig, just run down 

your recommendations? By the way, we do appreciate you making 

recommendations. But go ahead. 

Mr. HEWIG. Thank you, Mr. Chairman. My recommendations are 

three-fold: first, that ALJs must be independent, and I referred to 

the FAA model under which decisions made for license or civil penalty matters by the FAA, the Federal Aviation Administration, are 

adjudicated by Administrative Law Judges that are outside the employment of the agency. In the case of the FAA, it is the NTSB. 

Mr. CUMMINGS. All right. Stop there. 

Your opinion, Mr. Dash. 

Mr. DASH. Again, I would have to preface it by saying, I am prejudiced. I have always been for the position that Administrative 

Law Judges making decisions impacting on agencies should be outside of the agency. Years ago, it was for actually an ALJ corps. But 

I certainly like the idea that you would use ALJs who are not part 

of the agency itself. And as you know, this is a very big debatable 

thing in advent law. But yes, I would like that recommendation 

very much. 

Mr. CUMMINGS. All right. Number two, Mr. Hewig. 

Mr. HEWIG. Number two was that some limited discovery should 

be granted as of right. And by that, I mean, that it should not be 

within the discretion of the Administrative Law Judge. The guidelines, or I should say the regulatory prescription for discovery that 

were amended and enacted in 1999 have in fact, by both Judge 

Massey’s information and also my experience, been used to stifle 

discovery rather than to encourage it. I think that something such 

as, for example, 10 or 15 interrogatories as of right and 5 to 10 document requests as of right would go greatly to accelerate the pace 

of the hearing and perhaps also serve as a catalyst to settlement. 

Mr. CUMMINGS. Professor Dash. 

Mr. DASH. I would go along with the recommendation if you want 

to set a minimum of documents. I would be a little constrained 

about having any requirement for so many interrogatories or depositions taken out of the discretion of the ALJ. The reason I say that 

is, there were some obvious hearings where the ALJ is one who is 

best to determine whether or not you need actual depositions or interrogatories. To make it a mandatory type thing, I question that; 

I question that, where you say there must be a minimum, if requested, so many interrogatories. That gives a certain control to 

the respondents, and it takes it away from the ALJ. The whole 

point of administrative hearings is that you want to expedite them; 

you want to make them fair but also reasonable; and that the Administrative Law Judge should be given that discretion. If they feel 

there is a need for 5 or 25 interrogatories, that they can order 

them. But if they don’t feel there is a need for it in this case, I 

think that should be left to them. 

Mr. CUMMINGS. Mr. Hewig, the last one. 

Mr. HEWIG. The final one related to evidence and findings relating to science and medicine. 

Mr. HEWIG. In those instances, in those matters where a legal 

outcome is determined by a regulation involving scientific or medical evidence or measurement—and here I specifically refer to the 

first case in my written statement in which a mariner was found 

41 

to have, quote, ′′substituted′′ his urine specimen because the creatinine count in his urine sample was below a cutoff—I say 

′′arbitrary′′ and it was—of 5 mg per DL. Because he came in at 3 

mg per DL, the regulations compelled a finding of substitution and 

then compelled a suspension of the license. That decision occurred 

in 2000. 

In 2001, the Coast Guard and the Department of Transportation 

undertook a review, and in fact, they reversed themselves. Their 

science was quite simply wrong, and the subsequent regulation 

amendment amended that 5 mg per DL creatinine lower-level cutoff down to 2. 

So the point here is that science is an ever-changing field, and 

those absolutes do not work to justice, and my recommendation 

here is that where you have got regulations that relate to the submission and rely upon scientific evidence or medical evidence, that 

you ought to make it not absolute but a rebuttable presumption so 

that evidence can be brought in to show, if it exists, that a particular mariner’s test results are outside the normal pool of probability for good cause shown. It should not be absolute. It should 

be a rebuttable presumption on a case-by-case basis. 

Mr. CUMMINGS. Got it. 

Professor Dash. 

Mr. DASH. I would have a problem with that recommendation because the purpose of rules and regulations is to, more or less, give 

definitive answers to certain things. What I am getting at is that, 

if in the process of coming out with regulation, they have the support and the evidence—the substantial evidence—to say that 3.2 or 

whatever it is is no good, that should be permitted, and that should 

control the hearing because, otherwise, you are going to be having 

some hearings that can go on and on and on in which you have got 

to have experts coming in, testifying. It is a problem because many 

hearings, as I understand, do not even have lawyers. It is the respondent who is representing himself. 

I just think it complicates it, because there is an answer. The answer is that if there is evidence that the standard in the reg is a 

problem, well, then you can always recommend that the regulation 

be amended, and this can be done, frankly, by lawyers from the 

outside if they wish. 

Anyway, it is long-winded again, but I am bothered by that kind 

of a mandatory thing that you must hold a hearing to decide 

whether it is 3.2 or 5.2. 

Mr. CUMMINGS. Mr. LaTourette. 

Mr. LATOURETTE. Thank you very much, Mr. Chairman. I just 

want to sort of close my thoughts on this panel. 

One of the things that propelled us here was an article that 

made as its premise that there were 6,300 cases filed, and the 

mariners only won 14 times. I think everybody would agree that 

if those were the true facts, that something really is wrong. 

What I discovered today, at least from your testimony, Judge 

Fitzpatrick, was as you described the case, as was referenced in 

that article, you had an LNG potential accident where someone 

could have been killed. And despite the fact that the government 

was seeking revocation of the credentials, you went the extra step 

42 

and made it 8 months rather than permanent revocation. I do not 

find anything fixed about that case. 

Judge Massey, I certainly never meant to cast any aspersions 

about your career. I think it has been distinguished, and as a matter of fact, your testimony indicates to me that you were a very 

thoughtful judge. And as to the case that you described—and I assume the document that the Chairman was questioning—something about the subpoena, if I understood your testimony right, 

when the government did not produce documents or have additional discovery that you had ordered, you dismissed the case. 

Isn’t that what you told us? 

Judge MASSEY. That is correct, sir. 

Mr. LATOURETTE. Yes, that is exactly what you are supposed to 

do. 

Professor Dash, just from my experience, people did not comply 

with discovery all the time, and there was a remedy. I mean, you 

got rid of the charge; you sanctioned them; you fined them; you put 

them in jail—whatever the rules permitted you to do—and I think 

Judge Massey did the exact right thing. So I am not leaving this 

panel with the belief that somehow this system is fixed against the 

mariner. I am leaving it with the sense of perhaps what Judge 

Lawson said in the article, that the chief judge was a little heavyhanded in how he interpreted the regulations. I think maybe we 

should look at that. 

I think Mr. Hewig’s observation and Professor Dash’s observation 

about having the finder-of-fact outside the agency is a good one. I 

think I can be supportive of that, and that makes sense to me, but 

I am not finding that this is somehow, as was suggested in print, 

a system that is fixed against the mariner. 

I think I know your answer, Judge Fitzpatrick, but do you disagree with that? 

Judge FITZPATRICK. Oh, no. I mean it is definitely not fixed 

against the mariner. 

Mr. LATOURETTE. Judge Denson, do you think that it is fixed 

against the mariner? 

Judge DENSON. I think to the degree that it can be a bad influence for the mariner the way the regulations are applied and 

where the regulations are—what they are, I think, can be looked 

at as a negative towards the merchant mariner. 

Mr. LATOURETTE. But you, as an Administrative Law Judge, 

didn’t you always treat your cases and the litigants fairly? 

Judge DENSON. I can say, in all honesty, I did; and in fact, on 

two occasions, I think I bent over back too far with some Yemen 

men who appeared in front of me because I think I had some prejudice there, and they were buying documents up in Washington 

State, Seattle, to get an endorsement on it. And I really should 

have revoked their licenses, and I tried to be—I think I ended up— 

I should have been more severe in my order against them. But 

those are the only two times I can think of. Other than that, I 

think I do the very best I can with the facts and with the information that is given before I give the sanction. 

Mr. LATOURETTE. Then, Judge Massey, I assume from your testimony you always gave everybody a fair shake in your courtroom, 

did you not? 

43 

Judge MASSEY. Yes, sir, I did, and I paid a price for it. 

Mr. LATOURETTE. I understand your testimony perfectly, but 

again, this notion—I think there are two separate issues here. One, 

is the chief judge’s interpretation of the regulations heavy-handed 

or is it, as the professor suggested, perhaps not the way that it 

should be? We have the issue that Mr. Hewig brought up that perhaps the ALJ should be outside the umbrella of the Coast Guard 

itself. 

The second issue is—and what are there, seven Administrative 

Law Judges and one chief? Is that what it is? Does anybody suggest that any of these men and women—with all of the experience 

that you have talked about, Judge Massey, and I assume all of the 

experience that both of you have, that they are not treating mariners fairly in this country? 

Judge FITZPATRICK. I think they are being treated fairly. 

Mr. LATOURETTE. Judge Denson. 

Judge DENSON. I have knowledge of some where they have not 

been treated fairly. But on the whole, I think they are well-intentioned ALJs who are trying to do their jobs. 

Mr. LATOURETTE. Judge Massey. 

Judge MASSEY. I have specific knowledge of at least one case 

where a mariner was not treated fairly by another judge, and that 

is in the documents I submitted. 

Mr. LATOURETTE. Okay. Was it a discovery issue? 

Judge MASSEY. No. It was a case where the chief judge, or someone on his behalf, had communicated to the sitting judge how the 

case was going to come out. 

Mr. LATOURETTE. Is that the fellow you had lunch with? 

Judge MASSEY. Yes, sir, it was that instance. 

Mr. LATOURETTE. Okay. That was alarming to me because I read 

that you were a spectator in his courtroom, that you had lunch 

with him and that he made some observations. I think that was a 

pretty serious allegation, and I think that was Judge Brudzinsky. 

Is that his name? 

Judge MASSEY. That is correct. 

Mr. LATOURETTE. I think we should have him together with Wilson and Jordan here, and let us get to the bottom of this. 

Thank you all for your excellent testimony. I enjoyed it. 

Mr. DASH. Excuse me, sir. Could I respond to one thing that you 

had mentioned? 

My problem with the saying ′′we will not comply with the 

subpoena′′—and you had indicated that the judge went ahead and 

dismissed the case. I would recommend the interlocutory appeals. 

Why do I say that? As you well know, if you fail to comply with 

a subpoena in a Federal court, aside from the possible contempt, 

and you have the case dismissed, that is going to be supported by 

the appellate court. The problem here is that when it goes to appeal to the Commandant, he can overturn the dismissal, which undermines, of course, the ALJ. 

It would be better if they had an interlocutory appeal where, if 

the government felt that the discovery request or subpoena were 

wrong, and filed a motion to suppress that was denied, that they 

could take it then to the Commandant, rather than having the 

44 

Commandant overturn the dismissal. That, to me, hurts an ALJ’s 

status. 

Mr. LATOURETTE. I heard you say that. You know, the thing I 

love about working with the Chairman is that he is always looking 

at how can we make things better. So we asked you and Mr. Hewig 

those questions. 

So, on that list of things to do, would it be your recommendation 

that we look to modify that regulation that would provide for that 

interlocutory appeal if the government felt that an ALJ’s order of 

discovery were not appropriate? 

Mr. DASH. Yes. So you do not have this absurd position where 

the government is saying to an ALJ, ′′No, I will not comply.′′ then, 

of course, you have a dismissal, and then of course, the ALJ loses 

at the Commandant level. 

Yes, I would certainly recommend that they have an interlocutory appeal. 

Mr. LATOURETTE. I think that is a great suggestion. 

Judge FITZPATRICK. Mr. Chairman, may I make one comment 

with respect to what Mr. Hewig said? 

The scientific evidence that he is talking about has nothing to do 

with the Coast Guard. That whole determination with respect to 

the pH level and the creatinine level is done by the Department of 

Transportation in its scientific and in its drug section, and they 

have produced whatever the regulations or the memorandums are 

that govern the scientific testimony throughout the Department of 

Transportation, not only the Coast Guard but every other agency. 

So that when the Coast Guard is looking at that evidence, it is 

looking at the DOT determination with respect to the scientific evidence, not its own. 

Mr. CUMMINGS. I want to thank all of you. 

Just to wrap this up, I think that we have a situation where I 

truly believe that the judges do everything in their power to do 

things fairly. That is not the issue. 

The issue seems to be, to me—and I am just listening to all of 

this—the heavy-handedness of a chief judge and to what degree 

that heavy-handedness crosses the line of the degree that an ALJ 

should have the right and privilege to be independent. It seems to 

me that is part of the problem. It is one thing to dispense justice. 

It is another thing to dispense justice when you feel like you have 

got to go over 50 million hurdles to do it. And that seems to me 

to be what Ms. Denson and Ms. Massey are saying. 

So, just to close this out, Ms. Massey—and I want to just finish 

this, your piece—on April 8, 2005, did you have a meeting with 

Chief Judge Ingolia in Baltimore? 

Judge MASSEY. I did. 

Mr. CUMMINGS. I want you to be brief because we are going to 

have to wrap this up. Who else was present at that meeting? 

Judge MASSEY. Initially, it was myself, Judge Ingolia, Judge Jordan, Megan Allison, and Ken Wilson. 

Mr. CUMMINGS. Did the chief judge discuss his views on what 

types of prehearing discovery were appropriate? 

Judge MASSEY. Yes, sir, he did. 

Mr. CUMMINGS. During your meeting with the chief judge, were 

any of the issues that were previously discussed—during the meetVerDate Aug 31 2005 15:36 Jun 18, 2009 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 P:\DOCS\37015 JASON
45 

ing of staff, of the District 8 Legal Department, of the Marine safety officers, of the chief ALJ’s office, and the Commandant’s legal office already mentioned—brought up and discussed when you then 

met with the chief judge. 

Judge MASSEY. Yes, sir. 

Mr. CUMMINGS. Can you tell us about that briefly? 

Judge MASSEY. In a nutshell, sir, he told me that I needed to 

stop allowing discovery in S&R cases; that I was never to require 

the Coast Guard to do one minute’s more work than I wanted them 

to do; that I was never to rule against the Coast Guard unless 

there was absolutely, positively, no way I could get out of it; and 

that I should never follow a regulation if the Coast Guard were not 

in agreement with that regulation. 

Mr. CUMMINGS. Now, Professor Dash, you will remember I just 

talked a little bit, a moment ago, about heavy-handedness and 

where the line is supposed to be drawn. And the reason why I am 

saying the things that I am saying is that, having practiced law for 

many years, I can tell you there were three cases in probably the 

2,000 or 3,000 cases that I tried that stick out in my head, and all 

three of them were cases where I felt that my client was not treated fairly. I will go to my grave remembering those cases. 

They were not big cases, but I remember them, and I am just 

wondering. We talk about the appearance, not just whether injustice or fairness is there, but whether there is the appearance, and 

I am just wondering—and I do believe that in order for any justice 

system to survive, the parties must believe—now, I am not saying 

they are going to always be happy about decisions, but at least that 

they were treated fairly and that they had a shot when they 

walked into the courtroom. 

If what was just said were true by Ms. Massey, is that in any 

way in your opinion stepping across the line? 

Mr. DASH. I am stunned. And of course, I would love to hear 

what the Coast Guard has to say. But if, in fact, an ALJ were told 

that, I am stunned. 

For example, it is so much against the law. The government in 

these cases has the burden of establishing by a preponderance of 

the evidence, since they are the ones who are bringing the charge, 

to establish that in fact the mariner did something wrong. 

To say that you always rule for the government, unless it is 

something extraordinary, violates, frankly, the APA, and it violates 

their own statute. So I am not assuming, by the way, that this was 

said, and I am not assuming that is what was just said. It is just 

that if this is true, this is a violation of many, many statutes as 

well as, obviously, going against the whole spirit of what the APA 

is all about. 

Mr. CUMMINGS. Last question. 

Out of everything that has been said—see, they can dismiss the 

chief judge. The chief judge can leave, but that does not necessarily 

solve the problem. What I am sure Mr. LaTourette was alluding to 

is, if we are to do anything here, we want to make sure that we 

put in place those things that will even—as best we can, help to 

avoid even the appearance of injustice. And so you all have talked 

about a number of things that we might be able to do that will, 

hopefully, last when we are dancing with the angels. 

46 

So are there any other things that you all can think of, any of 

you, that we might do to—and I understand, Mr. Fitzpatrick, you 

have had wonderful experiences, and it has worked out fine for 

you. But clearly, there are some things going on here, and if we 

held this hearing until the middle of next year, we probably would 

not be able to get to the bottom of it, but there are some things. 

You have got the Coast Guard sitting here. You have got us sitting here, and all we want to do is to try to make a system of justice the very best that it can be. We cannot guarantee anything, 

but we can try to put those pieces in place that help to keep it on 

the straight and narrow as possible. 

Do you have anything else, Professor Dash? 

Mr. DASH. Yes. I think the one perfect idea is the one that has 

already been approached. If you take the ALJ Corps for the Coast 

Guard out of the Coast Guard, if the chief ALJ were not down the 

hall from the agency head, the Commandant, I think that would 

solve everything. It really would. It would solve, certainly, the appearance of impropriety, because I am a big believer that the bigger the separation you have from the fact-finder—from the prosecutor or the from the agency—the better the system is; and if they 

could, just take the ALJs out of the Coast Guard and have them 

decide their cases from some other entity. 

A good example, for example, is looking at the National Labor 

Relations Board and how they operate, how they separate their 

ALJ group completely from the General Counsel’s Office that does 

the prosecution. There are other agencies that are very similar, 

that do the same thing. What I detect in looking at this is not any 

bad faith or any evil, but if there is an appearance of impropriety, 

it is because the ALJs, the judges, are too closely connected to the 

prosecutors and to the agency itself, and they should be separated. 

Mr. CUMMINGS. All right. Mr. LaTourette. 

Mr. LATOURETTE. Just one last observation, Mr. Chairman. 

I think what Judge Massey said is an unbelievable statement. As 

to Judge Ingolia, I will repeat I think he has been accused of criminal conduct and, if not criminal conduct, unprofessional conduct of 

the highest order. My belief is that he should have the opportunity 

to explain himself, and if he made those observations in that meeting to Judge Massey that occurred in Baltimore, Maryland, I think 

we should do something about it. But if he did not, I think he 

should have the opportunity to come and explain himself, because 

at the beginning of this hearing, I introduced the memorandum 

that came out of that meeting of April 8, 2005. This is a serious 

matter. This is the United States Congress. This is a public forum, 

and this man, in my opinion, whom I do not know, has been accused of pretty serious stuff. 

Mr. CUMMINGS. Mr. LaTourette, let me be very clear. 

I agree with every syllable you just said. I think you know me 

well enough to know that when witnesses have appeared in any 

hearing, and if I feel that they have been not treated properly by 

Members of Congress, I make it clear that I have a problem with 

them. As a matter of fact, I have actually apologized to witnesses 

for the conduct—of the way they were treated by other Members 

of Congress. And the same goes for someone who is not here, parVerDate Aug 31 2005 15:36 Jun 18, 2009 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6633 P:\DOCS\37015 JASON
47 

ticularly somebody of that stature. I would imagine, you know, 

those comments will be repeated in some periodicals and whatever. 

Let me say this: that we did ask for anybody who was in the system, the ALJ system, to just come forward, and we were not able 

to get the folks who we wanted. I promise you I will work with you 

to make sure—because I think you are absolutely, unequivocally 

correct. I think that anyone should have an opportunity—since we 

are here talking about fairness, that folks should have an opportunity to make sure that they give the other side of the story. And 

I promise and I commit to working with you to get not only the 

chief judge but the other two people who you also mentioned before 

us, too. 

In the meantime—did you have something, Ms. Denson? I 

thought you were raising your hand. 

Judge DENSON. I wanted to make one last comment if I may. 

Mr. CUMMINGS. Sure. 

Judge DENSON. We are talking about all of us judges assuring 

you that we want to provide fair hearings and that we do our very 

best to do a good job. But the seamen still have a sense that they 

are not getting a fair shake; and we have to look at maybe other 

things, other than the ALJs’ doing their job, to look at what is giving them the appearance that they might not be getting a fair 

hearing. 

I had some instances, I think I put in the paper, that said when 

we judges are asked to train IOs to put on cases in front of us, I 

believe I was the only one who refused, and I explained why. If I 

could provide the same opportunity to the respondents and their 

attorneys who are putting on cases, I would be glad to do that. But 

as to training the IOs to put on cases in front of us, we are the 

Coast Guard judge. They have got a one-upmanship over the respondents and their attorneys, and I thought that was an appearance of impropriety. See, I love to teach, but that is the only reason 

I would refuse to do that. 

Another thing is when a seaman walks into—no. I left in 1996, 

but when a seaman walks into a Marine Safety Office building to 

have his case heard and the whole place is filled with the Coast 

Guard, and there you have your judge, sitting with the Coast 

Guard, and he comes in for his hearing, he is going to get a fair 

hearing in my book and, I am sure, in Peter’s and in Judge 

Massey’s. 

What is the appearance to that person and his attorney? He is 

surrounded by the Coast Guard, and that is an appearance of impropriety. They might be getting a good hearing, I can assure you 

with some of the judges I know they would be getting a fair hearing, but the appearance is not there, and they still are going to 

have that feeling. 

Mr. CUMMINGS. Well, I want to thank you, and I want to go back 

to, of course, what Professor Dash said and, Mr. Hewig, that suggestion that the separation would be a good one, because I think 

that would cure—I think you are right, Professor Dash—it would 

cure a lot of this, even the appearance, because I do believe that 

the appearance—I mean, you know, one, people can say it does not 

matter how the respondent may feel or even how the Coast Guard 

may feel. But I just think that it is just so basic and so important 

48 

and so American that folks believe, when they are walking into a 

courtroom or a hearing room, that they have a fair shot, if they just 

do what they are supposed to do, that they have a fair shot. 

I can tell you that in my practices—my practice over the years, 

even when clients lost, if they felt that they had had a fair shot— 

they may have been upset for a little while, but they never came 

back to me and said, ′′You know what? I really think that the deck 

was stacked against me before I got,′′ except in the three cases that 

I mentioned. 

So, with that—if you all, by the way, have any other suggestions 

after, you know, you think about this a little bit, please get them 

to us. We are going to try to—I will tell you. This has been some 

very, very valuable testimony. We really do appreciate all of you. 

We know that we have inconvenienced you. We know that you are 

hungry, and so we are going to let you go. Thank you very much. 

The second panel come forward, please. Rear Admiral Brian 

Salerno and Captain Thomas Sparks. 

Both of you are going to testify, or just you? 

Rear Admiral, are both of you testifying? 

Admiral SALERNO. Yes, sir. Both of us are going to testify. 

Mr. CUMMINGS. Okay. Fine. I just wanted to know. 

Rear Admiral, thank you very much for being with us again, and 

again, we would like to have your comments—I do not know. I cannot tell you what to say, but it might be helpful during your opening, if you want to—if you want to. Let me just save you some 

time. You might want to comment on what you have just heard. 

You all asked to be separate, so you had your chance to hear what 

was being alleged, and so we will hear from you now. But I do note 

after reading your testimony that there was not one syllable—and 

I read it three times—that went to—there was a lot of information 

about the numbers but none that went to some of these allegations. 

And maybe that was intentional, I do not know—but you have 5 

minutes. 

STATEMENTS OF REAR ADMIRAL BRIAN SALERNO, DIRECTOR 

OF INSPECTION AND COMPLIANCE, UNITED STATES COAST 

GUARD, WASHINGTON, D.C; AND CAPTAIN THOMAS SPARKS, 

COMMANDING OFFICER, MARINE SAFETY UNIT, UNITED 

STATES COAST GUARD, PORT ARTHUR, TEXAS 

Admiral SALERNO. Good morning, Mr. Chairman, Ranking Member LaTourette, Members of the Subcommittee. Thank you for this 

opportunity to speak with you this morning on the Coast Guard’s 

Administrative Law Judge, or ALJ, system. The intent of the Coast 

Guard’s ALJ system and the marine investigative process through 

which mariners encounter the system is to ensure the safety of marine transportation and the public. Credentialed mariners are entrusted with enormous responsibility, often involving the safety of 

their passengers, their fellow crewmen, and the safe transportation 

of dangerous cargo, often through densely populated areas. 

The consequences of a safety failure involving the human element extend beyond the individual mariner, and for this reason, 

the Coast Guard and the marine industry expect a very high standard of performance. The vast majority of mariners faithfully carry 

out their duties in conformity with these standards. At the same 

49 

time, the process we use to impose a sanction against a mariner’s 

credentials, in those rare circumstances where it is necessary, is remedial in nature, not criminal. 

I want to assure the Committee from the outset that it is of paramount importance to the Coast Guard that the ALJ process in our 

field investigative procedures reflect fair treatment of the mariner. 

Of equal importance is that our procedures provide the required 

independence for the ALJs. It was to improve due process and to 

ensure fairness that our ALJ procedures were updated in 1999 so 

as to reflect the best practices in administrative law. 

Currently, the Coast Guard administers credentials for over 

200,000 U.S. merchant mariners. Each year, we take administrative action against a very small percentage of those mariners, less 

than 1 percent. Coast Guard investigating officers may initiate a 

complaint against a mariner’s credential when there is evidence of 

misconduct, negligence, incompetence. Or a violation of law or regulation while serving under the authority of their Coast Guardissued credential. 

The use of dangerous drugs by a credentialed mariner, or impairment while on duty, due to alcohol consumption, accounts for the 

majority of all actions taken by the Coast Guard against a mariner’s credentials. The importance of keeping mariners drug- and alcohol-free while performing their duties cannot be overstated. 

The 2003 Staten Island Ferry accident which killed 11 passengers and seriously injured 70 others and the Exxon Valdez 

grounding with its subsequent massive oil spill serve as prominent 

examples of why it is imperative that we impose proper sanctions, 

when needed, to minimize risk in the marine transportation system. 

Coast Guard investigators recommend sanctions based on the severity of the offense in accordance with the guidelines provided in 

Federal regulations. These guidelines ensure fair and consistent 

application of the suspension and revocation actions sought by the 

Coast Guard. The vast majority of cases where a sanction is imposed result from a settlement agreement between the mariner and 

the investigating officer. 

The ALJ’s role in the settlement process includes the review of 

each complaint to ensure legal adequacy of the allegations and of 

the sanction. Cases that are not settled are referred to the ALJ. 

Since June of 1999 when the new procedural rules went into 

place, there have only been 152 ALJ decisions and orders issued 

after fully contested hearings; 21 of these resulted in full relief for 

the respondent; 31 of these cases resulted in partial relief or in a 

sanction less than that sought by the Coast Guard. 

Throughout the process, the Coast Guard is very mindful of the 

fact that mariners’ livelihoods are at stake when we seek sanctions 

against their credentials. For that reason, we train our investigators to exercise good judgment and objectivity and to reserve suspension and revocation action for the most egregious cases. In fact, 

over one quarter of administrative actions taken against mariners 

were resolved with a letter of warning. In cases that warrant action beyond a warning, investigators are encouraged to help address the problem through the recommended sanction. 

50 

For example, mariners who test positive for dangerous drugs are 

offered the option of undergoing a rehabilitation program. About 50 

percent of the mariners who have their credentials suspended for 

drug use and who elect to undergo treatment eventually are rehabilitated and have their licenses or documents returned. 

The ALJ system and the investigative process are ultimately oriented towards public safety. Like all systems, there are always 

ways to improve. The Coast Guard is interested in working with 

stakeholders to improve the transparency of the process and to better serve the needs of mariners in the maritime community. 

Sir, I am out of time, but if you would like me to comment on 

your question on the proposal to remove the ALJ process from the 

Coast Guard—— 

Mr. CUMMINGS. That was going to be the first question I was 

going to ask you. Why don’t we just wait and let Captain Sparks 

say what he has to say, and then, you know, you will need to be— 

I assume you are raring and ready to go, and that question will 

give you a few more minutes to think about it. 

Captain Sparks. 

Captain SPARKS. Good afternoon, Mr. Chairman and Mr. 

LaTourette. I am Captain Thomas Sparks, Commanding Officer of 

Marine Safety Unit, Port Arthur, Texas. I have been in the service 

for going on 25 years now, and while I am a senior judge advocate, 

I have also had significant field experience in many other Coast 

Guard missions, principally marine safety and marine security. I 

am currently in what we refer to as an ′′out of specialty 

assignment′′—that is a nonlegal assignment—at Marine Safety 

Unit Port Arthur, which is a subordinate command to Sector Houston-Galveston. 

At Marine Safety Unit Port Arthur, I supervise approximately 

275 dedicated Coast Guard personnel—Active Duty, so-called ′′full 

time′′ Title X reservists recalled to Active duty, civilian employees, 

and drilling reservists. We are home to the Nation’s number one 

military outload port in support of our troops in Iraq and Afghanistan, and we provide waterborne security for all military outload 

vessel transits. We are also the Nation’s number one port for the 

importation of crude oil, and we have one existing LNG terminal 

in my area of responsibility. 

I will note, with respect to this hearing, I have had significant 

experience with the Coast Guard’s S&R process throughout my career, as I had been an investigating officer myself prior to attending law school and, in fact, have presented cases before Judge 

Fitzpatrick, who you just heard from today. This was previous to 

the 1999 regulation changes. 

Additionally, in subsequent assignments, I had increased responsibility and authority. I directly supervised and oversaw the work 

of investigating officers who presented cases before Administrative 

Law Judges after the regulation changes in 1999. In fact, I am in 

just such an assignment right now. 

I am here today primarily in my role as a judge advocate, representing the Judge Advocate General of the Coast Guard, to assist 

Rear Admiral Salerno in answering technical legal questions that 

you may have concerning the Coast Guard’s administrative law 

system, how it functions and how it affords due process. 

51 

And that is where I was planning to end my statement, but I 

thought I would take you up on your offer and speak to some of 

the issues that had been raised by previous witnesses if it is still 

okay. 

Mr. CUMMINGS. That is fine. 

Captain SPARKS. Yes, sir. 

The first point I want to make is that Professor Dash referred 

to a sentence in the memo at issue, the guideline memo at issue, 

basically stating that the Federal Rules of Civil Procedure should 

not be considered when it comes to a discovery matter. I would like 

to clarify that whole issue by reading the entire provision that is 

in part 20, 33 CFR. 

It reads, ′′Absent a specific provision in this part the Federal 

Rules of Civil Procedure control.′′ 

Now, there are several-pages’ worth of specific provisions on discovery in part 20, and I will suggest to you that seeing through 

that lens, it is not a controversial proposition. In fact, it is a very 

straightforward proposition that, therefore, the Federal Rules of 

Civil Procedure do not apply with respect to discovery. 

Next, there was mention by a previous witness—I believe it was 

Mr. Hewig—recommending that some basic or limited level of discovery be provided for in the regulations, and he said that as that 

should be a change. 

I would suggest to you that there is already a basic limited provision on discovery in the regulations as they exist right now, and 

essentially, it is almost an automatic exchange of witness lists and 

exhibit lists, including summaries of expected testimony from the 

witnesses. 

The third point I wanted to make is that Professor Dash talked 

about a waiver provision, that is in part 20, which allows the Administrative Law Judge to deviate or to waive any of the rules contained within that part. And I just would like to read the entire 

provision just to put it in context. 

It says, ′′Except to the extent that a waiver would be contrary 

to law, the Commandant, the chief ALJ or a presiding ALJ may, 

after notice, waive any of the rules in this part either to prevent 

undue hardship or to manifest injustice or to secure a just, speedy 

and inexpensive determination,′′ end quote. 

I will just say that the phrase a ′′just, speedy and inexpensive 

determination′′ is repeated in the paragraph just above the paragraph I read. They are watch words that I think convey the overall 

intent of the drafters of this regulation. 

So I would just point out that there are extraordinary circumstances that would permit an Administrative Law Judge to 

waive one of the rules, but they should not be taken carte blanche. 

Basically, we are talking about preventing manifest injustice or 

undue hardship, and those are very high thresholds. 

Thank you. 

Mr. CUMMINGS. Thank you both very much. 

I want to go to you, Captain Sparks, and to some of the things 

you just said, at least one of them. 

As I recall Professor Dash’s testimony—well, he said a lot, but 

one of the questions that I asked him was about these guidelines 

that were set out by the chief judge, and I quoted from those guideVerDate Aug 31 2005 15:36 Jun 18, 2009 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6633 P:\DOCS\37015 JASON
52 

lines. And it says these words, quote, ′′And the ALJ should not rely 

on Federal Rules of Civil Procedure for discovery matters.′′ 

I guess what I was trying to get to—and it seems like you are, 

in part, verifying my understanding—is that there is certain discovery, as you said a moment ago, that is already there. I mean 

it is pretty much there. It is rather significant discovery. The question went to when the chief judge says that the ALJ should not rely 

on the Federal rules, whether he is then limiting discovery more 

than, say, the Federal rules would. 

Are you following what I am saying? I know all of those provisions that you talked about. There are quite a few—you are absolutely right—but if the chief judge is basically saying that, okay, 

we do not want you to deal with—now, this is the chief judge. I 

am talking about what the chief judge says. You know, forget about 

the Federal rules. We have got our rules and know our rules pretty 

much. We want to make sure that they are not things that are 

going the opposite of one another. I know that there are things that 

are already stated with regard to the ALJs. I have got that. 

What I am saying is there may be more rights under the Federal 

rules that are not spoken to with regard to the ALJ. Are you following what I am saying? Does that make sense? Are you there? 

Captain SPARKS. I think so. 

Mr. CUMMINGS. Okay. I am just wondering. It seems to me that 

there was an effort—and I think this is what Professor Dash was 

saying—to perhaps limit the discovery with regard to the ALJs. 

Captain SPARKS. Well, sir, I have never talked to the chief judge, 

and I cannot be inside his mind, but my read of this memorandum 

is that, first of all, it is a set of guidelines. The word ′′guideline′′ 

appears at least three times. It is in the subject line. It is in the 

first paragraph, and it is in the last paragraph. 

I look at it as a clarification more than anything else. Virtually 

every word is cut and pasted verbatim either from the regulations 

themselves, or from the preamble to the Federal rulemaking just 

prior to the regulations coming into effect. 

So I think the rules themselves on discovery do, in fact, limit discovery because they explicitly create very high hurdles to get beyond the so-called ′′mandatory discovery′′ that is initially provided 

for and is almost automatic. Those hurdles are to get to further discovery that it will not unreasonably delay the proceeding, that the 

information sought is not otherwise obtainable, that the information sought has significant probative value, that the information 

sought is neither cumulative nor repetitious, and that the method 

or that the scope of the discovery is not unduly burdensome and, 

in fact, is the least burdensome method available. 

Now, on top of that, when you talk about specific discovery mechanisms such as interrogatories or depositions, there are additional 

requirements that overlay those. 

Mr. CUMMINGS. Again, I think it would be good to hear from the 

judge because I think, when you put a statement in guidelines and 

say—and I mean this is the sentence, ′′The ALJ should not rely on 

the Federal Rules of Civil Procedure for discovery matters,′′ period. 

I mean that is a problem, and it sort of goes against some of what 

you just said, I think. But let us move on from there. 

53 

Rear Admiral Salerno, tell me what your opinion is with regard 

to what Professor Dash has said with regard to taking these cases 

from under the Coast Guard. 

Admiral SALERNO. Well, sir, our view is that there is a great deal 

of value in retaining the Administrative Law Judge program within 

the Coast Guard. 

Mr. CUMMINGS. Why? 

Admiral SALERNO. Well, this allows the judges to become very acquainted with all of the maritime regulations to which mariners 

are held. They understand the mission focus of the Coast Guard 

and how their role serves the marine safety purposes of the program. 

We also recognize the imperative that this process be independent, and we believe that we actually have the procedures in 

place to preserve that independence. At the same time, we will objectively consider any recommendations that are made by the Committee that would offer alternatives to that current process. 

Mr. CUMMINGS. Do you think it is important, Rear Admiral, that 

the mariners and the Coast Guard feel, when they walk into a 

hearing, that they are going to be treated fairly? Do you think just 

to know that or to feel that or to believe that is important? 

Admiral SALERNO. Absolutely. Yes, sir. 

Mr. CUMMINGS. Does it concern you that there are folks in the 

mariner community—and I can tell you—I do not know if you 

heard what I said from the very beginning. There is nothing that 

we have done—and we have done quite a bit in this Committee 

over the last 7 months—that has drawn more attention than this. 

There are comments from mariners, e-mails, things of that nature. 

They are just very concerned about it. Does that concern you? 

Would that concern you? 

Admiral SALERNO. Yes, sir, it does concern me. 

Mr. CUMMINGS. So Mr. LaTourette was saying—and I am sure 

he said it on the record, I think he did—that this removal—he and 

I agree on this, and perhaps pulling them out from under the Coast 

Guard might be helpful in the sense that it could cure—whether 

you want to believe there are problems or not is a perception—that 

it could cure some of these perception problems. 

I am sure you would agree with me that we would hope that 

those problems do not exist, but the fact is that a lot of folks apparently feel that way, and I am putting aside— while Mr. LaTourette 

has referred quite a bit to the Sun paper article, I put that aside 

to try to get down to some other things, you know, conduct-type 

things that I have heard about; trying to get to those because I can 

tell you—and Mr. LaTourette alluded to this—some of the charges 

were very, very serious and are the types of things that in most 

jurisdictions could get a judge in a lot of trouble. 

So I just think that maybe we need to take a look at that. And 

I know the Coast Guard is a very strong and a great organization, 

but I think sometimes, I think, we have to do everything. And I 

am just asking you, if you can. 

Other than the things you have just stated, what issues would 

you have or would the Coast Guard have with regard to separating 

and having these cases tried outside of the Coast Guard? 

54 

Admiral SALERNO. Well, sir, in addition to what I just mentioned, 

I would like to point out that there are two levels of administrative 

review in the current system. Certainly, there is a review to the 

Commandant, and then a respondent, if they are not satisfied with 

that level of review, can take the case to the NTSB. So it does go 

outside of the organization in an administrative proceeding. 

Beyond that, there is recourse to the Federal court system so 

that a respondent does, in fact, have avenues outside of the Coast 

Guard to further hear a case and to evaluate a case on the merits. 

Mr. CUMMINGS. Let me ask you this. 

Going to what the Rear Admiral just said, Captain Sparks, if a 

mariner comes in and he goes before Judge Massey or before Judge 

Denson and his license is taken away, his privilege to do his livelihood, what happens during an appeal? Is that judgment then suspended while they go through appeal? How does that work? Do you 

follow what I am saying? In other words, the license is suspended—I mean not suspended, but revoked. What happens then? 

Captain SPARKS. Well, there are two avenues, at least two avenues open to the respondent at that point. They can apply for a 

temporary license if their license has been suspended. If it has 

been revoked, there is also a process called ′′administrative clemency,′′ and then the respondent can also ask that the case be reopened again and looked at like Judge Fitzpatrick referred to when 

he, I think on his own initiative there, reduced the sanction in the 

case of the pilot who almost caused the horrific accident with the 

LNG vessel. 

Just like Admiral Salerno says, there is also an avenue of appeal 

directly to Commandant and then beyond the Commandant—and 

the Coast Guard is unique in this—to an outside independent agency, the National Transportation Safety Review Board. Then even 

beyond that, it goes to a judicial circuit court. 

Mr. CUMMINGS. I guess what I am trying to get to—and I am not 

a mariner, but I guess what I am trying to get to is, when we have 

got someone whose livelihood depends upon being able to do the 

things that mariners do, and they lose the opportunity to do that, 

the only question I am trying to get to is—you know, sometimes— 

let me go back. 

I used to represent lawyers, and if a lawyer got in trouble, a lot 

of times what would happen is, if he were, say, put out of business 

or suspended for 6 months, that was like being disbarred for 10 

years, because he lost all of his business; his reputation was destroyed; and just getting back would be very, very difficult. 

I guess what I am trying to figure out is that when we talk about 

these appeal processes, what happens in the meantime? In other 

words, you lose your license, but you said you can get a temporary 

license. You can get—what else? 

Captain SPARKS. You can apply to get your license back, even 

after it has been revoked, through a process called ′′administrative 

clemency.′′ 

Mr. CUMMINGS. Yes, but during that clemency, you do not have 

your license—right?—until you get it back? 

Captain SPARKS. Correct. 

55 

Mr. CUMMINGS. So, in other words, you can go to a hearing, and 

at that moment, like they do it in Baltimore at least, the judge can 

say, ′′Give me your license.′′ 

Is that what they do there, too? 

Captain SPARKS. Yes, sir. 

Mr. CUMMINGS. Oh, okay. 

So you do not have a license. That is a problem. 

I guess what I am trying to get to, Rear Admiral, is that I just 

think that, when you are talking about something as serious as 

taking away somebody’s livelihood, we need to take all of these 

things into consideration. Not that the same thing would not happen even if it were separated, but at least, hopefully, we would be 

able to cure some of these perceptions other than fairness—do you 

follow me—in very serious cases. 

Admiral SALERNO. Yes, sir, I understand your concern there. I 

would like to point out, sir, that in the investigative process that 

takes place at the field level, our investigators are trained to use 

a great deal of objectivity and judgment and even bring in a case 

before an ALJ. In many cases that deal with minor infractions, our 

investigators may just issue a verbal warning. There is no record 

to this. 

An example might be, you know, a pilot on a vessel hits a navigational aid. Technically, you can bring somebody to a hearing for 

that, but in many cases they may just give a verbal warning or, 

in more serious cases, a letter of warning. Then it does become a 

matter of record. But they try to resolve cases at the lowest possible level. The default position is not necessarily to bring people 

to a hearing. That is reserved for the more serious cases or the 

drug cases as we mentioned before. 

Mr. CUMMINGS. I have got you, but let us go back. You were talking about investigating officers. Then I will turn it over to Mr. 

LaTourette. 

Judge Denson mentioned that she was asked to train investigative officers, and I was just wondering, is that a normal practice, 

do you know? 

Admiral SALERNO. It is not normal practice. Certainly, since the 

rules went into effect in 1999, the separation is much more of a 

bright line issue. There is one exception to that, and that is, at our 

training facility in Yorktown where we train our investigating officers on the procedures for conducting hearings, usually towards the 

end of this multiweek course, we may invite an ALJ to come in and 

perform in his normal role as a judge at a mock hearing. 

In the way that training is conducted, the judge does not provide 

any instruction to the IOs. He does not critique their performance. 

That is left to the course instructors. His role is simply to—— 

Mr. CUMMINGS. Or hers, what her role is. 

Admiral SALERNO. —or her—and just play out their normal role, 

and then they leave. But as far as any other training, I understand 

that may have occurred in some instances in the past before the 

1999 rules, but that is not occurring today. 

Mr. CUMMINGS. The last question. 

Rear Admiral Salerno and Captain Sparks, if an ALJ in an adjudication issues a subpoena or a discovery order, does the Coast 

Guard choose which subpoenas or discovery orders it will comply 

56 

with and which it will not comply with? What is the policy with 

regard to such orders, if there is one? 

Admiral SALERNO. If a judge issues a subpoena, our expectation 

is it will be followed. 

Captain SPARKS. I agree. I do not know that we have got a specific policy. I think it is just generally understood we do what the 

Administrative Law Judge directs. 

Mr. CUMMINGS. So did it surprise you when you heard the testimony—I think it was from Judge Massey—that folks just said that 

they were not going to comply, that the Coast Guard said they 

were not going to comply? Did that surprise you at all? 

Captain SPARKS. Very much. I was similarly surprised with her 

recitation of her meeting with Chief Ingolia. It is almost incredible. 

Admiral SALERNO. I concur, sir. That would be contrary to the 

way we train our investigating officers. The expectation is when 

the judge issues an order, we follow it. 

Mr. CUMMINGS. So, in listening to the testimony of Judge 

Massey, would you say that you all were surprised by particularly 

my last line of questioning when I asked about when she talked 

about the chief judge and what she alleged was said to her? You 

all were surprised by that? 

Captain SPARKS. Very much so, yes, sir. 

Mr. CUMMINGS. All right. 

Admiral SALERNO. Yes, sir. 

Mr. CUMMINGS. So what you are trying to tell me is that you 

would agree that if that were true, if what she were saying were 

true, that would not be inappropriate; is that right? 

Captain SPARKS. I would prefer to look at it this way. 

In my nearly 25 years in the Coast Guard, Administrative Law 

Judges have been treated—we have a culture where they are, essentially, revered. They are respected. Ex parte communications 

are verboten. And I just cannot imagine something like Judge 

Massey described as happening. 

Mr. CUMMINGS. All right. 

Mr. LaTourette. 

Mr. LATOURETTE. Thank you very much, Mr. Chairman. 

Captain Sparks, I know that judge advocates in this instance are 

not prosecutors per se, because these are not criminal proceedings, 

and the level of proof is a preponderance of the evidence. But I 

guess, because you are dealing with the potential revocation of 

someone’s license and therefore livelihood, they are semi-quasi 

criminal. 

When I was the prosecutor, I always felt that the prosecutor had 

a great obligation. And I think the thing that is really disturbing 

me about this newspaper article—and I am sorry for bringing it up 

again—is that somehow wins, not just on the belt, are more important than doing justice. And to the folks who I worked with in the 

prosecutors’ office, yes, it was embarrassing if you lost a case. Nobody likes to have brought an indictment or a charge to find out 

not to be right. But during the course of dealing with a case, if you 

discover you have got the wrong person or you have got the wrong 

charge or the facts are not there, I mean, is it your observation or 

experience that the judge advocates also are there to do justice, not 

just to win cases? 

57 

Captain SPARKS. Most assuredly so. Before they ever get to the 

case stage, these investigations are thoroughly vetted at the unit 

level before a decision is ever made to go forward with an S&R 

case. And we do realize the devastating impact it can have on a 

mariner and his or her ability to, you know, have a livelihood. It 

is not something we take very lightly. To the contrary, there is also 

a certain level of nervousness or anxiety in going before an Administrative Law Judge. 

So, if for no other reason but a selfish motivation, we want to be 

absolutely, positively sure that, you know, there has been, you 

know, an act of misconduct or of negligence or so forth has been 

committed and the evidence is overwhelming. 

Mr. LATOURETTE. I appreciate that very much. And I would 

make this observation. I have read the chief judge’s memo relative 

to, don’t follow the rules of civil procedure the way that you did. 

And that is, if the regulations are silent, if they speak to the issue, 

the discovery issue, then you don’t use the Rules of Civil Procedure. 

If the regulations are silent, then you should turn. And I didn’t 

view the chief judge’s memo—I guess I would disagree with the 

professor’s observation and I guess the Chairman’s, too. But I 

would say this; that based upon Judge Massey’s observation about 

the chief judge, that if he actually said the things that she alleged 

that he said, then I guess I won’t give him the benefit of the doubt 

on the memo. 

And so my question to you, Admiral Salerno, is, the Chairman 

has indicated that the staff reached out to try and get people who 

were in this meeting in Baltimore, and we also had two other 

judges sort of had their reputations, I think, pretty severely attacked during the course of this hearing, are you aware of anything 

from the Coast Guard then that would prevent Mr. Jordan, Mr. 

Wilson, Chief Judge Ingolia and Judge Brudzinsky—I know that 

there are some lawsuits flying around and so forth and so on. But 

if I was Judge Ingolia, Judge Massey accused him, and I think it 

is a crime to say that no matter what the facts are, no matter what 

you think, you have to rule for the Coast Guard. And if he actually 

said that, the guy shouldn’t be in his current job; he should be in 

jail. But if he didn’t, I think he should have the opportunity to 

come here and set the record straight. So is there any impediment 

that you guys not want these folks to come and talk to us about 

this? 

Admiral SALERNO. Sir, the impediment is the lawsuit. There are 

three of them. Judge Ingolia has been named in his official capacity 

and in his personal capacity in those lawsuits. In our discussions 

with the Department of Justice, it is recommended that he and several others not appear at this stage because of that pending lawsuit. 

Mr. LATOURETTE. How about the people that were in the meeting? Jordan and this Wilson guy play a pretty prominent role in 

our observations. 

Admiral SALERNO. I believe Mr. Jordan is also named in the lawsuit. I am not sure about Mr. Wilson. I would have to confirm that 

for you, sir. 

58 

Mr. LATOURETTE. Could you look at that, because those are the 

names the Chairman may have? And Judge Brudzinsky, has he 

been sued, too. He is the guy that went to lunch. 

Admiral SALERNO. I am getting confirmation from the back row, 

sir. Yes, on all of those. 

Mr. LATOURETTE. Wilson, too, is in the lawsuit? 

Admiral SALERNO. Yes, sir. 

Mr. LATOURETTE. I would just hope that you or someone else at 

the Coast Guard could come have a meeting with the Chairman 

and try to figure out how we collect this information. Because it 

bothers me on a lot of levels, the allegations that were leveled here 

today. And then for the reasons that I—I don’t want to beat a dead 

horse, but I think I have explained why they bother me. And I 

think a guy that has been accused of what he has been accused of 

should have the opportunity to clear his name. And I understand 

what those impediments are. But if you can work with the Chairman and try to figure out how we can gain access to the observations in a way that doesn’t prejudice either side in that lawsuit, I 

really think that would be helpful. 

Admiral SALERNO. Sir, if I may, I would also like to state that 

the Coast Guard categorically denies the allegations that have been 

made in this lawsuit and, working through the Department of Justice, has filed a motion to dismiss. 

Mr. LATOURETTE. And that doesn’t surprise me at all. I will tell 

you, where I come from, and I guess I will disagree with you, Admiral, in talking with the Chairman, I think that, because it is my 

understanding that after the ALJ rules, you do lose your license, 

and the next step is the Commandant and then the NTSB. I do 

think that there is something to be said on this whole appearance 

of impropriety. And I don’t think this hearing has shown that there 

is any impropriety of the Coast Guard or the ALJ system at all. 

But I do think that it has demonstrated that you can have that appearance. It is a little bit like Congress, to tell you the truth. When 

we were in the majority, I used to love to preside over the House. 

And my friends in the Democratic party would come up afterwards 

and say, we like the way you did it because we know we are in the 

minority, but we feel we were treated fairly. 

And I think that the Chairman is right on point with that. Some 

people don’t understand losing at all. But most people, if you treat 

them fairly, understand that the facts weren’t on their side and 

they move on their day. And that is why I think that this moving 

the ALJs out of the Coast Guard, and I understand your opposition, has some attractiveness, and I would hope we could talk 

about that, because you do run the risk of these accusations. I assume you read the Sun story. It is horrible. And I haven’t come 

away from this hearing that anything in that story relative to numbers, you may be a great reporter, but you are not good at math, 

and it is not right. 

But people deserve to be treated fairly. And to the extent that 

they are not—and so if an ALJ that is in the Coast Guard building 

rules against a mariner, it then has to go to the Commandant, and 

the Chairman is exactly right, he doesn’t have his license. And 

even in the case, they put into the record where the NTSB ruled 

with the guy and said, we should take a look at this again; we are 

59 

going to remand it. I assume he was without his license for whatever period of time that took. And that I think speaks that maybe 

we need to look at where the ALJs sit. So I thank you both for your 

testimony. 

I thank you, Mr. Chairman. 

Mr. CUMMINGS. Thank you very much. 

Mr. Coble. 

Mr. COBLE. Thank you, Mr. Chairman. 

Mr. Chairman, I apologize to you and the Ranking Member. We 

had a Judiciary hearing that occurred simultaneously with this 

hearing, and that is why I am belated getting here. 

Captain Sparks, this has nothing to do with today’s hearing, but 

a half century ago, there was a boatswain’s mate 1st whose sir 

name was Sparks pushing booths through Cape May. Any relation 

to you? 

Captain SPARKS. No, sir, I don’t believe so. 

Mr. COBLE. He was a grisly boatswain’s mate, but a very competent one. 

You mentioned the administrative clemency program, Captain. 

What would be the average duration, if I had my license revoked 

and I applied through the administrative clemency process, when 

would that likely be restored? 

Captain SPARKS. I think it is a number of years. 

Mr. COBLE. A long time? 

Captain SPARKS. It is a fairly long time. 

Mr. COBLE. Well, as the Chairman pointed out, I don’t think we 

need to play loosely with people’s livelihoods. That is very crucial. 

But at the same time, I don’t think we need to be lucid and reckless with safety and security. 

Captain SPARKS. Exactly. 

Mr. COBLE. And compromising safety and security, on the one 

hand, as opposed to retaining a license, that has to be weighed very 

equitably I think and very fairly. 

Admiral, or, Captain Sparks, either of you, if you will, I am told 

there has been a lot of talk at the hearing regarding due process 

in the ALJ system with the Coast Guard. How about briefly walking me through the appeals process that is available to both parties, that is the mariners or the accused and the Coast Guard? How 

extensive is this process? And how far up the chain of command 

within the Coast Guard does it advance? And what opportunities 

are available outside or beyond the Coast Guard ALJ system? 

Captain SPARKS. Sir, let me tell you what I know, and then if 

you need more information, if you give us an opportunity, we will 

get back to you with more details. But there are a couple other avenues even before you talk about appeals. Administrative clemency 

is one of them. And I was just provided with the exact answer to 

your question. For a drug offense, it is a minimum of 3 years. For 

a nondrug offense, it is 1 year minimum for the administrative 

clemency process. If we are talking about a suspension as opposed 

to a revocation, there is an opportunity for a mariner to receive a 

temporary license. My understanding is that is a fairly liberally 

granted procedure by the Administrative Law Judge. 

Now, when you talk about appeals per se, there is a right of appeal to a Commandant. And that appeal can be based on whether 

60 

a finding of fact is supported by substantial evidence, whether each 

conclusion of law accords with applicable law precedent and public 

policy, whether the Administrative Law Judge abused his or her 

discretion. Or if we are talking about a case where there had been 

a motion to disqualify an ALJ that was denied by him or her, that 

can be a basis, the failure to grant a motion to disqualify. That appeal goes to a Commandant. If a Commandant rules against the respondent, then the respondent has a further avenue of appeal outside of the Coast Guard to the NTSB. And I think the grounds are 

the same or roughly the same. And, again, if a mariner fails to get 

relief with NTSB, that mariner can go to the judicial circuit court 

which has jurisdiction. 

Mr. COBLE. Admiral, will you add anything to that? 

Admiral SALERNO. No, sir. I think Captain Sparks laid it out 

quite adequately. 

Mr. COBLE. I have no further questions Mr. Chairman. 

Mr. CUMMINGS. Thank you, Mr. Coble. Again, we want to thank 

you all for being here. I know it has been a long morning and afternoon. We will be getting back to you with a few other questions. 

I realize that there are some questions that you all probably are 

not even in a position to answer. But there is one I must ask. If 

a Coast Guard unit has a concern about a particular judge, should 

they go to the staff of the chief ALJ or the Merit System Protection 

Board. Captain Sparks. 

Captain SPARKS. I don’t believe—and we can get back to you 

with a definitive answer—there is a prescribed method to communicate or voice a concern about an Administrative Law Judge other 

than appealing his or her decision after the fact. That said, the 

Chief Administrative Law Judge does have a duty to investigate allegations that come to his or her attention regarding misconduct. 

And if the chief then decides that these allegations are founded or 

serious enough, then the chief can kick the case over to the MSPB. 

That is about the best I can answer your question, sir. 

Mr. CUMMINGS. All right. Thank you all very much. 

And, again, we will try to follow up on Mr. LaTourette’s request 

to get at least the three people that he mentioned before us as soon 

as possible. And so, anyway, we thank all of you for being here. 

And this closes the hearing. 

[Whereupon, at 2:00 p.m., the Subcommittee was adjourned.] 

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