UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

3 

UNITED STATES COAST GUARD r- s 

-3 ", 

Complainant 

VS. 

JAMES MICHAEL ELSIK 

Respondent. 

Docket Number: CG S&R 04-0501 

CG Case No. 2078778 

Order Ruline on Rewondent's 

Motion for Sanctions 

Issued: Aodl6.2005 

Issued bv: Jeffie J. Massev. Administrative Law Judge 

GENERAL BACKGROUND 

This administrative proceeding was initiated on September 20,2004, when the 

United States Coast Guard ("USCG herein) filed a Complaint seeking the suspension of 

certain documents issued to Respondent James Michael Elsik, based on alleged acts of 

misconduct which allegedly occurred on and after May 10,2004, while Respondent was 

serving as Master of the UTV JOHN G. MORGAN. After receiving an extension, 
Respondent filed an Answer on November 23,2004. The Respondent denied the fsctual 

allegations, and pled two affirmative defenses. 

The original Complaint was filed pursuant to the statutory authority wntained in 

46 USC $7703 and the regulatory authority wntained in 46 CFR $5.27 (Misconduct). 

Specifically, the Complaint alleged that the Respondent was operating as the Master of 

the UTV JOHN G. MORGAN on May 10,2004 "when it allided with the Army Corps of 

Engineers Barge CE 869." The Complaint further alleged that the Respondent "did not 

make any notifications to Bayou Tugs lnc.' or the Coast Guard concerning the allision" 

As an apparent second allegation of misconduct, another paragraph of the first Count of 

the Complaint alleged that the Respondent, during the "subsequent investigation" stated 

"to the effect" that he had no knowledge of the allision "whereas Respondent did have 

knowledge of the allision." A sanction of six months suspension was proposed in the 

original Complaint. 

On December 20,2004, a telephonic Pre-Hearing Conference was conducted. 

During that conference, a number of procedural issues were addressed. In addition, the 

undersigned questioned the USCG as to how it proposed to get into evidence any 

statements made by the Respondent during the Marine Casualty Investigation conducted 

by the USCG, in view of the provisions of 46 CFR $5.101(b).~ It was suggested that an 

' It appears %om the record that Bayou Tugs, Inc. was the employer of the Respondent on 

May 10,2004. 

' 46 CFR $5.101(b) provides: "In order to promote full disclosure and facilitate 

determinations as to the cause of marine casualties, no admission made by a person 

during an investigation under this part or part 4 of this title may be used against that 

person in a proceeding under this part, except for impeachment." Part 4 of Title 46 is 

entitled "Marine Casualty Investigations." 
Amended Complaint would be in order. The USCG indicated that it would amend its 

Complaint on or before January 4,2005. 

An Amended Complaint was, in fact, filed on December 30,2004. This 

Complaint invoked the statutory authority of 46 USC §7703(b) and the regulatory 

authority of 46 CFR 85.27 (Misconduct) and 55.29 (Negligence).Two separate 

allegations of Misconduct were alleged--each was materially different from the 

allegations in the original Complaint. Added to the charges was an allegation of 

Negligence. 

Quickly following the filing of the Amended Complaint, the Respondent filed an 

Amended Answer, a Motion for Interrogatories, a Motion for Continuance (of the 

February 3,2005 hearing date previously established), and a Motion to Dismiss (Counts 

2 & 3 of the Amended Complaint. (All filed on or about January 3,2005.) 

On January 6,2005, the undersigned issued an Order (1) granting the Motion for 

Continuance (and soliciting input from the parties for the establishment of a new hearing 

date), (2) allowing service of the Interrogatories, (3) establishing a briefing schedule for 

Memorandums of Law in support of and in opposition to the Motion to Dismiss; and, (4) 

requiring the parties to brief an additional issue concerning the applicability of the 5& 

Amendment privilege against self-incrimination to Marine Casualty ~nvesti~ations.~ 

The USCG has vigorously criticized the undersigned for acting so swiftly on the 

Respondent's Motion for Continuance and Motion for Interrogatories. Ironically, at the 

same time, the USCG has complained that this proceeding was not moved along in a 

suitably expeditious manner by the undersigned. 
With respect to the Interrogatories, the undersigned established a shortened 

deadline for filing of objections (if any) to the Interrogatories, by the USCG. The 

purpose of this shortened deadline was to move along the proceeding as quickly as 

possible by resolving discovery disputes (if any) in the shortest possible time.4 

On January 14,2005, a Procedural Schedule was established for the proceeding 

by way of Order issued by the undersigned. On January 27,2005, via certified mail, the 

undersigned received a document fiom the USCG entitled 'Deadline for Interrogatory 

Objections." This document noted that the USCG's objections to Respondent's 

Interrogatories were due on January 22,2005 (as the interrogatories had apparently been 

served on the USCG on January 7). This document went on to say that the USCG 

intended to object to the Interrogatories, and that their objections would be filed "within 

30 days as required by the regulations." I note that this document was executed on 

January 24,2005--or two days after the deadline I established had passed. 

Sometime after Jarmary 3 1,2005, the undersigned received from the USCG an 

'tippeal" of the Order issued on January 6,2005. At or near the same time (approximately 

February 3), the undersigned received the USCG's "responses" to the Interrogatories. I 

note that the ''responses" were, in actuality, objections-the objections that were due on 

or before January 22,2005. 

The Respondent filed a response to the USCG's "appeal" of the January 6,2005 

Order and a '%lotion to Compel Answers to Interrogatories and Motion for Sanctions." 

As relief, the Respondent requested that I enter an order striking the USCG's objections, 

compelling them to answer the Interrogatories, and ordering the USCG to pay attorney's 

fees associated with the Motion. 

' See pages 2 & 3 of Order, and footnote 1. 

4 
On February 14,2005, I issued two separate Orders. In one Order, I explained 

why the USCG's attempt to unilaterally amend the due date for objections to the 

Interrogatories had no legal force and overruled their objections to the interrogatories 

because they were not timely. The same Order went on to explain why each of the 

USCG's objections to the Interrogatories were substantively deficient and why they must 

be overruled. I ordered the USCG to submit sworn answers to the Interrogatories on or 

before February 23,2005. I Mer ordered the USCG to refrain from submitting "further 

objections or requests for review" of that Order. Lastly, I set a date for the Respondent to 

file a report with me concerning the USCG's compliance or non-compliance with my 

Orders, including a request for sanctions, choosing from those available under the 

regulations. 

The other Order issued on February 14,2005, denied the USCG's "appeal" of the 

January 6,2005 Order. That Order dealt with, one by one, the various reasons the USCG 

gave for wanting tolnewlmg to "appeal" the January 6,2005 Order. All of their 

arguments were found to be baseless and without merit. 

On or about February 23,2005, the USCG submitted a discovery package to the 

undersigned, as required by the previously established Procedural Schedule. The 

package, that was supposed to comply with the requirements of 33 CFR $20.601, did not 

contain copies of any of the proposed exhibits (five in number) or any explanation as to 

why the USCG was not complying with the provisions of the regulation. 

SPECIFIC BACKGROUND 

On or about February 28,2005, the Respondent submitted the report required by 

the February 14 Order detailed above. In addition, the Report contained a Motion for 
Sanctions. Specifically, the Respondent requested that I dismiss, with prejudice, the 

[Amended] Complaint, per the authority granted to me in 33 CFR 520.31 l(d)(l). The 

Respondent argued: 

The Coast Guard's multiple failures to comply with the 

ALJ's orders in this case calls for and justifies a dismissal 

with prejudice of its Complaint against Mr. Elsik. If not, 

then the fox will truly be guarding the hen house. [footnote 

0mittedl5 

On March 7,2005, the undersigned received the USCG's response to the Motion 

for Sanctions. The first argument made by the USCG was a restatement, renewal and 

preservation of its prior objections to the Respondent's Interrogatories. The gist of the 

USCG's arguments thereafter appears to be that the Interrogatories were "not 

appropriate" because the parties had not exchanged witness lists prior to the issuance of 

the Interrogatories. They further complained about the shortening of the time frame for 

objections, and then they argued, again, that their objections were not baseless, etc. In 

closing the USCG requested-again-that I reconsider my prior rulings and set the 

matter for hearing "as soon as possible." 

DISCUSSION 

Before me for consideration today is the Respondent's Motion for Sanctions, i.e., 

the Respondent's request that I dismiss the Amended Complaint in this proceeding as a 

sanction for the USCG's refusal to substantively respond to the Interrogatories that I 

twice ordered must be answered. Under separate Order, also issued today, the 

Motion at page 4. 

Notably, the USCG never substantively responded to the Respondent's proposed 

sanction-that the proceeding be dismissed as a sanction for the USCG's refhsal to 

cooperate in the discovery process. 
Respondent's Motion to Dismiss the two Misconduct allegations contained in the 

Amended Complaint has been granted. As a result, the only Count remaining in the 

Amended Complaint is the Negligence allegation. 

In each Order I have issued on this long and winding road that has been the 

procedural history of this proceeding, I have explained the circumstances of the Order 

and the reasons I have made the rulings made on each issue before me at the time. While 

many of those Orders contribute to an overall understanding of the USCG's obstreperous 

attitude in this proceeding, I am not going to rehash those issues or my Orders. To the 

extent they are relevant, I incorporate them into this Order, as if each one was reproduced 

in its entirety in this document. To any reader of this Order who is not already familiar 

with those Orders, I highly recommend you read each of those Orders, so as to be able to 

put this Order into its proper perspective. 

It needs to be mentioned, as well that on March 22,2005, I took the unusual step 

of holding an on-the-record in-person conference. At said wnference, considerable the 

was spent discussing the issues raised by the Respondent's Motion to Dismiss. However, 

some salient points relevant to the USCG's interpretation of the regulations governing 

discovery were also uncovered during this conference. Without a doubt, the most 

important revelation was that the USCG personnel who have been participating in this 

proceeding were/are unaware that the USCG has embraced the Administrative Procedure 

Act with respect to the procedures governing every aspect of Suspensions & Revocation 

("ScBR" herein) proceedings-including discovery.' Actually, it would be more precise 

' See, for example, 46 USC $7702(a), "Administrative Procedure'' which provides: 

"Sections 551-559 of title [sic] 5 apply to each hearing under this chapter about 

suspending or revoking a license, certificate of registry, or merchant mariner's 

document." 
to say they didn't appreciate the fact that application of the Administrative Procedure Act 

("APA" herein) meant that Due Process applies to S&R proceedings.8 I found this 

revelation to be somewhat shocking. However, ignorance of the law is usually not an 

excuse, and that adage holds true in this proceeding. The USCG's lack of understanding 

about the application of Due Process to S&R proceedings does not excuse or justify its 

conduct in this proceedmg-most particularly its refusal to comply with my Orders to 

answer the Respondent's Interrogatories. Nor does the USCG's lack of knowledge about 

a key aspect of S&R proceedings operate to mitigate the sanction that must be rendered 

in this proceeding, as will be apparent from the discussion, infa. 

As I explained, in detail, in the Order I issued on February 14 denying the 

USCG's "appeal" of my January 6 Order, I approved the service of Respondent's 

Interrogatories on the USCG because I believed them to be appropriate, based on the 

record before me at that time. Nothing I have read or heard since then has altered my 

judgment on that issue. Had the USCG answered the interrogatories as ordered, I can 

think of no reason why discovery under the procedural schedule would not have been 

completed as contemplated, and both parties could have been and would have been ready 

for hearing on May 2,2005. True, in light of the other Order I have issued today, there 

would have only been one viable count left to go to hearing, but at least every one would 

have been ready to go forward on that allegation. 

Imead, at every conceivable step of the way, the USCG has chosen to obstruct 

the procedural course I have set in this case. At every turn, my authority to guide and 

direct the course of this proceeding-including discovery-has been the target of their 

' That's "Due Process" as in "the guarantee of' that flows from the 5" and 14' 

Amendments of the United States Constitution. 
obstructions. Their filing of frivolous motions, documents, and objections has cost the 

Respondent untold dollars in attorneys fees and taken up hours and hours of my time that 

otherwise could have been spent on other matters. And what is their justification for their 

actions? They didn't believe that I had the authority to order the service of 

interrogatories until there had been an "exchangen of discovery pursuant to 33 CFR 

820.601. 

How did they arrive at the conclusion that this exchange had to take place before I 

was authorized to order "further" discovery? Were they relying on a specific 

Commandant Decision on Appeal? No--they have admitted that no such opinion exists. 

Were they relying on the plain language of the regulations in Subpart F of Part 20 (of 33 

CFR)? No--they have failed to point to my such language--because it does not exist. 

Were they relying on explanatory remarks made in the Federal Register when the 

regulations were being amended in 1998? No--the Respondent has pointed out that the 

remarks in the Federal Register speak of the production of "final" witness and exhibit 

in other words, the exchange of witnesdexhibit lists under $20.601 is the end of 

the discovery process, not the beginning. Do they have an explanation for why the 

regulations say "fudher discovery may occur only by order, and then only when the AM 

determines that-[certain conditions are present]" rather than "further discovery may 

occur only by order, and then only after witness/exhibit lists have been exchanged by the 

parties"? No--they do not have an explanation for that, either. The only articulated 

explanation seems to be: traditionally, there has been limited discovery in S&R hearings, 

so that is the way it has to remain. 
I do not dispute that, prior to the amendments and reorganizations of 1999 that 

affected discovery in S&R proceedings, there was limited and inconsistent discovery in 

S&R proceedings. That system was not working well. How do I know this? From the 

contents of the Federal Register publication that announced the intention of the USCG to 

revise its regulations. Relevant passages include:" 

Background and Purpose 

This rulemaking is necessary as part of a Coast Guard 

effort to improve both: (1) the administrative efficiency of 

all Coast Guard adjudicative procedures; and (2) specific 

procedures related to actions involving mariners' 

credentials. It follows an overall Coast Guard initiative to 

streamline its resources, yet maintain effectiveness in all 

affected areas. * * * 

This rulemaking. . . seeks to remove those procedures that 

impede the efficient handling of cases. In addition, it 

would amend those rules which are not consistent with 

relevant legal standards and practices. . . . It seeks to 

employ the use of rules that are more familiar to civilian 

attorneys. . . . It would also enable the Coast Guard to 

maintain regulations in keeping with modern rules of civil 

and rriminal procedure, where applicable. 

**I 

3. Changes in the Rules of Evidence 

This proposes to apply the Administrative Procedures 

Act (APA) rules of evidence as the standard for evidence 

brought in S&R cases. 

What does the APA say about "the standard of evidence (9556(d))?" 

A party is entitled to present his case or defense by oral or 

documentary evidence, to submit rebuttal evidence, and to 

See 63 FR 16731-01, beginning at "6. Changes in the Rules of Discovery" April 6, 

1998. Also see 64 FR 28055, May 24, 1999. 

'O See 63 FR 1673 1-01, supra. 
conduct such cross-examination as may be required for a 

full and true disclosure of the facts. 

It appears that, in this proceeding, the USCG was satisfied with the old status quo 

Unfortunately for them, I do not see my role as enforcing what "used to be done"- 

rather, I see my role as following the plain language of the regulations and the APA. 

When the Respondent made his request for interrogatories in this proceeding, I reviewed 

the appropriateness of those interrogatories in the context of the record before me. 

What did I see? I saw a rather complicated Amended Complaint-one different 

in every way %om the original Complaint in this proceeding. I saw that the allegations in 

the Amended Complaint involved incidents that occurred in multiple locations on the 

waterways. I saw the involvement of multiple witnesses. I saw a set of circumstances 

which were entirely appropriate for the use of pre-hearing discovery as a tool to discover 

relevant witnesses, documents, and possibly expert opinions. More importantly, I saw a 

hearing that would be not be completed without postponements to allow for development 

of evidence discovered during cross-examination of USCG witness if these matters were 

not parsed out in advance of the hearing. 

Because witnesses relocate and become unavailable-because memories fade-it 

is better to secure their recollections sooner rather than later. At the time the request for 

interrogatories was made, almost seven months had elapsed since the events in question. 

To secure the Respondent's right to Due Process in this proceeding (the right to "a full 

and true disclosure of the facts" as it is expressed in the MA), it was necessary and 

proper to allow the Respondent to take all necessary action to undertake his discovery as 

soon as possible. I was not required by the regulations to wait until "final" witness or 

exhibit lists had been exchanged and I saw no need to do so, based on the record before 
me at the time. I stand by that decision as the correct one, based on the regulations and 

the facts before me at the time. 

During my deliberative process, I have carefully considered all of the available 

sanctions. I have carehlly considered the sanctions contained in 33 CFR $20.607. 

Subsection (a) is not appropriate because I cannot infer that the testimony, document, or 

other evidence the USCG did not produce would have been adverse to it, because I don't 

know exactly what it is. (It could have been a witness whose testimony is diametrically 

opposed to that of witnesses being called by the USCG. It could have been a report 

generated by a USCG investigator or a private party involved in the incident or a witness 

to the incident that documented the fact that someone else was responsible for the alleged 

damage to the Corps of Engineer's barge. It could have been an analysis of paint chips 

that concluded the paint chips did not match any vessel allegedly involved in the alleged 

ailision. These are just three examples of a potentially large universe of information that 

could have beenlwould have been discovered if the USCG had truthfully answered the 

Respondent's interrogatories.) 

Subsection (b) is not appropriate because I don't know what facts might have 

been revealed through truthful answers to the interrogatories, so I cannot determine what 

facts to designate as established. 

Subsection (c) is not appropriate because I don't lcnow what evidence was 

withheld-therefore I cannot identify what evidence to exclude. 

Subsection (d) is not appropriate because it is designed to exclude evidence 

already received by a party during discovery-in this proceeding, the problem is that 

evidence responsive to the interrogatories was nor received. 
Subsection (e) is not appropriate because, again, I don't know what the evidence 

would have shown--so I can't allow the substitution of secondary evidence in its place. 

In sum, the sanctions available to me under 820.607 are not appropriate for use in 

this proceeding, based on the circumstances before me. The problem created by the 

USCG's refusal to comply with my discovery Orders is of much greater magnitude than 

the withholding of a single document or witnesses' name-a document or name that is 

identified at a later time. The problem created by the USCG's refusal to comply with my 

discovery Orders is that it prohibits me fiom being able to insure for the Respondent "a 

full and true disclosure of facts" as required by the APA. 

In a Due Process proceeding, it is not required that each party agree with every 

Order of the Presiding Judge. What is required is that each party comply with the orders 

of the Presiding Judge so as to maintain the balance being created by those orders-after 

all, balance is a key and crucial component of Due Process. To keep the playing field 

level, a Respondent who faces the full weight and authority of the federal government is 

entitled to some protections. That is the whole point of "Due Process" provisions, such 

as those in the APA-those same provisions adopted by the USCG for S&R proceedings. 

In this respect, the Presiding Judge of those proceedings-an APA Judge such as 

myself-is the gatekeeper for Due Process. Under the regulations applicable to S&R 

proceedings, it is the Presiding Judge who has "all powers necessary to the conduct of 

fair, fast, and impartial hearings," including the power to order discovery.'' If a party 

disagrees with an Order of the Presiding Judge, the appropriate action is that the party 

complies with the Order, then complains about it on appeal after a final decision is issued 

by the judge. In this proceeding, the USCG refused to comply with my Orders and kept 
insisting that the proceeding go to hearing. Clearly, the USCG was not interested in 

maintaining a sense of "Due Process" in this proceeding. 

So what sanction does the conduct of the USCG merit them in this proceeding? 

For all the reasons discussed herein and based on the entire record before me, it appears 

reasonable and appropriate to me that I invoke the authority granted to me by 33 CFR 

$20.31 l(dX1) and dismiss with prejudice the remaining count of the Amended 

Complaint. 

ORDER 

IT IS HEREBY ORDERED that the remaining Count of the Amended 

Complaint-the allegation of Negligence-is dismissed with prejudice. 

Done and dated April 6,2005 

New Orleans, Louisiana 

L,WfVITED STATES COAST GUARD 

" See 33 CFR $20.202. 

14 
CERTIFICATE OF SERVICE 

I hereby certify that I have forwarded the attached document to the parties by the 

methods indicated: 

ENS Matthew Spolarich 

U S Coast Guard 

Morgan City MSO 

800 David Drive Room 232 

Morgan City, LA 70380 

(by regular mail) 

J. Mac Morgan 

Attorney At Law 

879 Robert E. Lee Boulevard 

New Orleans, LA 70124 

(by regular mail) 

AU Docketing Center 

U.S. Custom House, Room 412 

40 S. Gay Street 

Baltimore, MD 21202 

&%&L ,/ Livia Torres 

' Paralegal to 

Jeffie J. Massey 

Administrative Law Judge 

Done and Dated on April 6,2005 at 

New Orleans, Louisiana