1 

COAST GUARD ADMINISTRATIVE 

PROCEEDINGS IN DRUG CASES RESEMBLE THE 

CIVIL LAW TRADITION 

By Walter J. Brudzinski*

*Administrative Law Judge, U.S. Coast Guard; BA University of Maryland; JD George Mason University 

(with distinction); Master of Judicial Studies (MJS) University of Nevada, Reno. The author submitted this 

article as part of a course requirement towards the Ph.D. degree in Judicial Studies at the University of 

Nevada in association with the National Judicial College. The views expressed herein are those of the 

author and are not to be construed as official or reflecting the views of the Commandant or of the U.S. 

Coast Guard. 
2 

Table of Contents

INTRODUCTION............................................................................................................. 3

OVERVIEW ...................................................................................................................... 3

THE UNIQUENESS OF FEDERAL ADMINISTRATIVE ADJUDICATION ......... 6

COAST GUARD ADMINISTRATIVE ADJUDICATION ........................................ 12

Marine Employers Must Test Employees ................................................................. 13

Suspension and Revocation Proceedings .................................................................. 15

Settlement Agreements ............................................................................................... 17

Hearing Procedure ...................................................................................................... 20

TESTING THE HYPOTHESIS .................................................................................... 24

CONCLUSION ............................................................................................................... 30

BIBLIOGRAPHY ........................................................................................................... 32
3 

INTRODUCTION

This paper shows how Coast Guard administrative proceedings to revoke 

merchant mariner credentials for dangerous drug use resemble the civil law tradition. 

Following an overview we describe in detail the Coast Guard’s administrative procedures 

for dangerous drug use. We then test our hypothesis against the writings of two 

prominent civil law scholars.1 Finally, we conclude that applying the civil law tradition in 

administrative adjudication involving dangerous drug use is the best method to promote 

safety at sea. 

OVERVIEW

Civil law and common law comprise the two major legal traditions in the world. 

Each tradition contains wide variations but the former is more commonly associated with 

Europe and most countries of the world whereas the latter is more commonly associated 

with England, Australia, New Zealand, Canada (except Quebec) and the United States, 

among others. 

Within the common law tradition of the United States there is also an 

administrative adjudicatory system in which federal and state agencies administer and 

adjudicate laws that Congress and state legislatures delegate to them to enforce, either 

externally through the courts or internally through administrative adjudication, and 

sometimes both. State and federal agencies within the executive branch as well as 

 

1

 Mirjan R. Damaška, THE FACES OF JUSTICE AND STATE AUTHORITY: A COMPARATIVE APPROACH TO

THE LEGAL PROCESS, 16-29, Yale University Press, New Haven (1986); Richard Lempert, AngloAmerican and Continental Systems: Marsupials and Mammals of the Law, CRIME, PROCEDURE AND

EVIDENCE IN A COMPARATIVE INTERNATIONAL CONTEXT, 395-413, Hart Publishing, John Jackson, 

Maximo Langer, and Peter Tillers, eds., Oxford and Portland, Oregon (2008). 

 
4 

independent agencies function in a similar fashion as the three branches of state or federal 

governments: legislative (rulemaking), executive (enforcement), and judicial 

(administrative adjudication). “[W]hen one speaks of public law in the civil law systems, 

what is meant is often merely administrative law.”2

In both federal and state administrative adjudication systems, administrative 

procedure acts ensure that those who are subjected to an agency’s administrative 

enforcement process are accorded fundamental due process rights. After an 

Administrative Law Judge (ALJ) adjudicates a disputed matter, the agency may affirm, 

reverse, modify, set aside, or remand the ALJ’s decision for further proceedings. Upon 

final agency action and exhaustion of administrative remedies, the matter may be 

appealed to the courts. 

Although the United States follows the common law tradition, administrative 

adjudication in general has more in common with the civil law tradition because agencies 

promulgate regulations setting forth the powers and duties of their Administrative Law 

Judges, thereby limiting the ALJ’s discretion and ensuring that law and agency policy are 

strictly followed. Administrative Law Judges must follow the agency’s rules and policies, 

and do not have the independent power of judicial review.3

 Article III federal judges and 

state judges of general jurisdiction, in most instances, have authority to declare a 

legislative act unconstitutional.4

 Therefore, just like the judge in the civil law tradition, 

 

2

MARY ANN GLENDON, PAOLO G. CAROZZA, and COLIN B. PICKER, COMPARATIVE LEGAL TRADITIONS, 

112, 3rd ed., Thompson/West, St. Paul, MN (2008). 3 See, ATTORNEY GENERAL’S MANUAL ON THE APA § 7(b) (1947) (ALJs must comply with agency 

policies and procedures). This is not unlike legislative supremacy in the civil law tradition. 

4 ALJs derive their authority from their agencies and [t]he law has long been clear that agencies may not 

nullify statutes.” Public Utilities Commission v. U.S., 355 U.S. 534, 539 (1958); Oestereich v. Selective

Service Board , 393 U.S. 233, 242 (1968) (Harlan, J., concurring); Johnson v. Robinson , 415 U.S. 361, 368 

(1974); Weinberger v. Salfi , 422 U.S. 749, 765 (1975); Moore v. City of East Cleveland , 431 U.S. 494, 

526 (1977) (Burger, C.J., dissenting). That is exclusively within the purview of the Federal Courts. 
5 

an Administrative Law Judge’s discretion and powers are more narrowly circumscribe

compared to an Article III judge or a state judge of general jurisdiction. 

d 

 

In the civil law, there is a tradition of legislative supremacy. This is due, in part, 

to the “top down” theory of managing adjudication. When that tradition is coupled with 

history of judiciary distrust, it also results in the subordination of judge’s role.5

 Likewise, 

in the administrative adjudicative system, there is agency supremacy in its legislative 

capacity which also results in subordinating the Administrative Law Judge’s role. 

Congress passes a law authorizing a particular agency to make rules with which to 

enforce the law. The agency promulgates regulations prescribing how the law is going to 

be enforced, including civil, administrative adjudication. The courts give great deference 

to an agency’s interpretation of the law.6

The common law tradition is exemplified by a “bottom up,” decentralized system 

in which general principles are derived from litigated cases or controversies. Those 

principles are based on experience, thus forming rules for judges to follow. The “top 

down” civil law system is somewhat rigid and designed to yield certain results. This “top 

down” system also applies to administrative adjudication in which the agency 

circumscribes the ALJ’s discretion so that legislative intent and agency policy are 

followed. In the common law tradition, there is judge made law, even when interpreting 

statutes. In the civil law tradition, there is little judge made law or stare decisis within 

the codes. Therefore, the civil law does not evolve, at least within the codes. In 

administrative adjudication, there is judge made law to the extent that the ALJ’s decision 

5 Supra, note 2 at 105. 6 Chevron v. Natural Resources Defense Council, 476 U.S. 837, 844 (1984). 
6 

and rationale is consistent with agency policy. By not reversing, modifying, or remanding 

the ALJ’s decision, the agency may implicitly adopt it as law.7

In the civil law tradition, the judges are professional, permanent civil servants 

who have served as a judge ever since they finished law school, passed their exams and 

finished their apprenticeships. Common Law judges have had experience as practicing 

attorneys. They function on a horizontal plane whereas civil law judge function in a 

hierarchy. In the civil law tradition, the judicial opinions are written so that they can be 

reviewed. Common law judges may or may not prepare a written opinion, depending on 

the court’s jurisdiction. Common law judge are more independent. 

Civil law courts base their judgments on the provisions of codes and statutes, 

from which solutions in particular cases are derived. Therefore, they reason extensively 

on the basis of the technical, general principles of the codes to fill in the gaps not 

specifically addressed in the codes. In the common law tradition, cases are the primary 

source of law, supplemented by statutes. Common law judges apply community norms 

and have wide, inherent discretion. They can be creative. Civil law judges and 

Administrative Law Judges apply the technical standards of the codes and cannot be as 

creative. 

THE UNIQUENESS OF FEDERAL ADMINISTRATIVE ADJUDICATION

Prior to discussing the Coast Guard’s administrative adjudication system for 

dangerous drug use, it is necessary to provide an overview of administrative law and 

 

7

 This is especially true in commercial fisheries enforcement by the National Oceanic and Atmospheric 

Administration (NOAA). Once the ALJ issues a decision, the Respondent may appeal to the Administrator. 

The Administrator may refuse to hear to appeal if the ALJ’s decision is consistent with agency policy. The 

ALJ’s decision then becomes final agency action and may be appealed to the local U.S. District Court who 

will decide whether the agency’s decision as rendered by the ALJ is correct. The district judge bases the 

decision only on evidence in the record, not additional evidence. See, 5 U.S.C. § 706 (2006). 
7 

adjudication in the United States. Administrative law encompasses that branch of law 

governing the organization and operation of administrative agencies (including executive 

and independent agencies) and the relations of administrative agencies with the 

legislature, the executive, the judiciary, and the public. It consists of: (1) the statutes 

endowing agencies with powers and establishing rules of substantive law relating to those 

powers; (2) the body of agency-made law, consisting of administrative rules, regulations, 

reports, opinions containing findings of fact, and orders; and (3) the legal principles 

governing the acts of public agents when those acts conflict with private rights. Black’s 

Law Dictionary, 8th ed. (2004). It “includes the entire range of action by government with 

respect to the citizen or by the citizen with respect to the government, except for those 

matters dealt with by the criminal law and those left to private civil litigation where the 

government’s participation is in furnishing an impartial tribunal with the power of 

enforcement.” Richard J. Pierce, Jr., Administrative Law Treatise, 5th ed. Vol. I, p. 1, 

Wolters Kluwer, New York (2010) (Quoting Friendly, “New Trends in Administrative 

Law,” 6 Md. Bar J., No. 3, p. 9 (1974)). 

 Within the various agencies there are Federal Administrative Law Judges who 

preside at formal, trial-type hearings to resolve certain disputes between government 

agencies and persons affected by an agency’s decisions. Those disputes include imposing 

civil penalties for violations of the agency’s regulations, suspension and revocation of 

licenses or permits issued by the agency, and disability benefits, among other things. As 

the initial trier of fact, the Administrative Law Judge (ALJ) is “functionally comparable” 

to a trial judge.8 As such, ALJs are authorized to administer oaths and affirmations, issue 

 

8 Butz v. Economou, 438 U.S. 478, 514 (1978); Federal Maritime Commission v. South Carolina State Port 

Authority, 535 U.S. 743, 756 (2002). 
8 

subpoenas, rule on offers of proof, receive relevant evidence, and take other actions 

authorized by agency rules in accordance with the Administrative Procedure Act (APA).9

 

The U.S. Office of Personnel Management (OPM) administers the selection and 

employment of ALJs and each agency appoints as many as necessary to hold hearings 

required to be conducted in accordance with the APA.10 OPM also administers the 

selection and employment of ALJs.11 Agencies interview and appoint from OPM’s 

register as many ALJs as necessary to hold hearings required to be conducted in 

accordance with the APA.12 With the approval of OPM, ALJs from one agency may be 

assigned to hear cases temporarily for other agencies when caseloads warrant.13 To 

further ensure ALJs’ independence from their agencies, OPM also sets their pay.14

Agencies may not rate an ALJ’s job performance or grant any monetary, honorary, or 

incentive pay.15 Most importantly, agencies may remove an ALJ “only for good cause 

established and determined by the Merit System Protection Board on the record after 

opportunity for hearing before the Board.”16 

There are approximately 1,430 Administrative Law Judges assigned to 29 Federal 

agencies.17 The agency employing the largest number of ALJs, approximately 1,115, is 

the Social Security Administration.18 Two other agencies with large numbers of 

Administrative Law Judges include the U.S. Department of Labor, with approximately 

 

9 5 U.S.C. §§ 551 – 559; 556(c); Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) 

(codified as amended at 5 U.S.C. §§ 550-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006). 10 5 U.S.C. § 3105 (2006); 5 C.F.R. pts. 930 and 337 (2010). 

11 5 C.F.R. pts. 337 and 930 (2010). 

12 5 U.S.C. § 3105 (2006). 

13 5 U.S.C. § 3344 (2006); 5 C.F.R. § 930.208 (2010). 

14 5 C.F.R. § 930.205 (2010). 

15 5 C.F.R. § 930.206 (2010). 

16 5 U.S.C. § 7521 (2006); 5 C.F.R. §§ 1201.121 to 1201.148 (2010). 

17 OPM figures as of June 2009. 

18 Id. 
9 

40, the Office of Medicare Hearings and Appeals with approximately 70, and the 

National Labor Relations Board, with 44.19 The remaining Administrative Law Judges 

are employed in agencies with 1 to 19 judges. 

Administrative Law Judges adjudicate three broad categories of cases: regulatory, 

entitlement, and enforcement. Regulatory cases, such as those of the Federal Energy 

Regulatory Commission, involve economic regulation of rates and services provided by 

industries vital to the U.S. economy.20 Also included under regulatory as well as 

enforcement cases are merchant mariner license suspension and revocation cases heard 

by Coast Guard Administrative Law Judges.21 Entitlement cases involve adjudication of 

claims initiated by citizens for benefits provided by law such as disability under the 

Social Security Act22 and worker’s compensation benefits under the Longshoremen and 

Harbor Workers Compensation Act.23 The enforcement category involves adjudication of 

cases brought by various Federal agencies against individuals or companies to enforce 

Federal laws and regulations. Examples of enforcement are mine safety cases heard by 

Judges of the Mine Safety and Health Review Commission,24 workplace safety cases 

heard by Judges of the Occupational Safety and Health Review Commission,25 aviation 

safety cases heard by Judges of the National Transportation Safety Board,26 commercial 

fishery regulation cases brought by the National Oceanic and Atmospheric 

 

19 Id. 20 18 C.F.R. pt. 185 (2010).

21 33 C.F.R. pt. 20 (2010) and 46 C.F.R. pt. 5 (2010). 22 20 C.F.R. pt. 404 (2010). 

23 20 C.F.R. pt. 702 (2010). 

24 29 C.F.R. pt. 2700 (2010). 

25 29 C.F.R. pt. 2200 (2010). 

26 49 C.F.R. pt. 821 (2010). 
10 

Administration,27 and aviation safety and security civil penalty cases brought by the 

Transportation Security Administration against the aviation industry and its passengers.28

At the conclusion of hearings, the parties may submit proposed findings of fact 

and conclusions of law.29 The ALJ then prepares and issues the initial or recommended 

decision that includes factual findings and legal conclusions that are matters of public 

record.30 Initial decisions become the agency’s final decisions unless appealed to the 

head of the agency or commission. The head of the agency or commission, can affirm, 

reverse, modify, set aside, or remand for further proceedings.31 Appeals from final 

agency action are to United States District Courts or to Circuit Courts of Appeal, 

depending on the Agency. This system is very similar to what Prof. Damaška refers to as

the hierarchical ideal which he associates with the European civil law system.

.”33 Put another way, 

 

32 In

administrative adjudication, it creates the appearance of being biased because the 

hierarchy is within the agency. “[The fact that the ALJ works for the agency] has cast a 

shadow on the hearing examiner/employee relationship

[T]he agency is allowed to act as police officer, prosecutor, 

and judge, with the hearing process a mere rubber stamp 

for the agency staff’s decisions. Because a court will 

overturn the decision of the agency only upon a showing 

that there was no substantial evidence in the record to 

support the agency’s decision, the proponents [of central 

27 15 C.F.R. pt. 904 (2010). 

28 49 C.F.R. pt. 1503 .(2010). 

29 5 U.S.C. § 557(c) (1) (2010). 

30 For example, under NOAA regulations, an initial decision becomes effective as the final administrative 

decision of the Agency 60 days after service unless otherwise provided by statute or regulations, the Judge 

grants a petition for reconsideration, or a petition for discretionary review is filed. 15 C.F.R. § 904.271(d). 31 The Coast Guard line of appeal is from the ALJ to the Commandant, thence to the National 

Transportation Safety Board, and thence to the appropriate Circuit Court of Appeals. See 33 C.F.R. 

Subpart J and 49 C.F.R. pt. 825 (2010). 

32 Supra, note 1, Damaška at 20-21. 33 John W. Hardwicke, The Central Panel Movement, 53 ADMIN. L. REV. 419, 423 (2001). 
11 

panels of ALJ adjudication] argue that allowing the agency 

to control the fact-finding portion of the proceedings gives 

the agency an unbeatable hand and leads to abuses of the 

agency’s power over regulated individuals and 

businesses.34 

“[U]nder the APA, both its federal and state incarnations, the agency alone [has 

been] granted the authority to make the decisions on the law and facts of a dispute before 

the agency.”35 

As far as independence is concerned, an ALJ has “decisional independence,” not 

“independence in the sense of “separation of powers.”36 Like judges in the civil law 

tradition, ALJs cannot rule on the constitutionality of issues or challenges to the validity 

of regulations promulgated by an agency.37 Under the APA, there is a “firewall” that 

separates the ALJ from the investigatory and prosecutorial functions of the agency.38 

But, as shown below, the perception of non-independence persists: 

g akin to 

y 

sumes that a fair 

earing will not be forthcoming.39 

 

[E]ven if the use of agency employees as hearing officers 

[ALJs] does not result in actual unfairness, the use of those

employees results in apparent unfairness with consequent 

loss of public trust in the process. Under this argument, a 

member of the public who appears before a hearing officer 

[ALJ] is presumed to anticipate receiving somethin

a trial conducted by a judicial branch judge. Upon 

discovering that the hearing officer [ALJ] is an agenc

mployee, the person instinctively as

h

34 David W. Heynderickx, Finding Middle Ground: Oregon Experiments with a Central Panel for 

Contested Case Proceedings 36 WILLAMETTE L. REV. 219, 224 (2000). 35 Id. 36 James E. Moliterno, The Administrative Judiciary’s Independence Myth, 41 WAKE FOREST L. REV. 

1191, 1211 (Winter 2006). 

37 See, e.g., 15 C.F.R. § 904.200(b) (2010). The exception in the civil law system is judges on 

constitutional courts. 

38 5 U.S.C. § 554 (d) (2) (2006) provides that the presiding agency employee (ALJ) making the decision 

shall not be subject to the supervision of the investigative and prosecution functions for the agency. 

39 Heynderickx, supra note 38 at 225-26 (footnotes omitted). On judicial independence, Martin Shapiro 

asks the rhetorical question, “shouldn’t the court-like agencies be independent too, an independent fourth 

branch [of government] not answerable to either Congress or president?” MARTIN SHAPIRO, WHO GUARDS

THE GUARDIANS? JUDICIAL CONTROL OF ADMINISTRATION, 112, The University of Georgia Press, Athens, 

Georgia (1988). 
12 

COAST GUARD ADMINISTRATIVE ADJUDICATION

The U.S. Coast Guard is charged with, among other things, promulgating and 

enforcing regulations for the promotion of safety of life and property in the maritime 

domain.40 It also exercises general regulatory authority over the Merchant Marine, its 

vessels, and its personnel.41 That authority includes establishing and classifying 

Merchant Marine personnel credentials as well as establishing professional and medical 

qualifications for those seeking to obtain credentials.42 It also includes authority to 

require holders of Merchant Mariner Credentials (MMCs) to be tested for alcohol and 

dangerous drugs.43 To that extent, the Coast Guard may deny an MMC to any person 

who has been convicted of a dangerous drug law of the United States or a state within 10 

years of application, or has ever been a user of or addicted to a dangerous drug.44 

Once an Administrative Law Judge (ALJ) finds that the MMC holder is, or has 

been, a user of or addicted to dangerous drugs, the law requires that the MMC be 

revoked.45 Unless the ALJ finds the allegation not proved, the ALJ is not permitted to 

 

 now 

ation and Watchkeeping). 74 Fed. Reg. 11,216 (March 16, 2009) (codified throughout 

us 

, and reasonable cause testing, and shall include post-accident testing.” 

dings 

nducted 

nd 

ourt of the United States (28 

d at 

40 14 U.S.C. § 2 (2006). 

41 46 U.S.C. § 2103 (2006).

42 46 U.S.C. § 7101 (2006). Merchant mariner licenses, documents, and certificates of registry are

consolidated into what is now referred to as the Merchant Mariner’s Credential (MMC). The term 

“credential” can include license, certificate of registry, MMC, or STCW Endorsement (Standards for 

Training, Certific

Title 46 C.F.R). 

43 46 U.S.C. § 7702(c) (2) (2006). “The testing may include pre-employment (with respect to dangero

drugs only), periodic, random 44 46 U.S.C. § 7503 (2006). 

45 46 U.S.C. § 7704(c) (2006). The authority for the Coast Guard to conduct administrative procee

against the credentials of merchant marine personnel is found at 46 U.S.C. §§ 7701-7705 (2006). 

Administrative proceedings to suspend or revoke merchant mariner credentials are initiated and co

in accordance with the Administrative Procedure Act, 5 U.S.C. § 551-599 and the Coast Guard’s 

substantive and procedural rules at 46 C.F.R. pt. 5 (2010) and 33 C.F.R. pt 20 (2010). ALJ Decisions a

Orders may be appealed to the Commandant of the Coast Guard under 33 C.F.R. §§ 20.1001-20.1004 

(2010). Decisions of the Commandant are appealed to the National Transportation Safety Board (NTSB) 

under 49 C.F.R. §§ 825.1 - 825.40 (2010). Final Orders of the NTSB are appealed to the appropriate U.S. 

Circuit Court of Appeals (49 U.S.C. § 1153 (2006)) , thence to the Supreme C

U.S.C. § 1254 (2006)). Coast Guard ALJ Decisions and Orders are foun
13 

impose a sanction less than revocation. Further, if an ALJ finds that the MMC holder has 

been convicted of violating a dangerous drug law of the United States or a state within a 

10 year period before the beginning of the administrative proceedings, the ALJ must 

either suspend or revoke the holder’s MMC.46 It is clear that Congress intends to exclude 

drug users and violators of drug statutes from serving on U.S. vessels. 

Marine Employers Must Test Employees 

To discourage the illegal use of controlled substances, the Coast Guard requires 

all marine employers to test their employees for dangerous drugs.47 Those dangerous 

drugs are: marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines.48

Marine employers are not permitted to employ anyone to serve as a crewmember unl

the individual passes a chemical test for dangerous drugs.

ess 

 

49 Marine employers must 

conduct pre-employment,50 periodic,51 random,52 serious marine incident,53 and 

http://homeport.uscg.mil/mycg/portal/ep/programView.do?channelId=-

27093&programId=73628&programPage=%2Fep%2Fprogram%2Feditorial. That website also contains 

links to Commandant Appeal Decisions and NTSB Decisions. 

46 46 U.S.C. § 7704(b) (2010). 47 See generally, 46 C.F.R. pt. 16. In its Notice of Proposed Rulemaking requiring employers to test 

mariners for dangerous drugs and alcohol, the Coast Guard stated, “through chemical testing, the Coast 

Guard expects to discourage drug and alcohol use by merchant marine personnel, an activity which 

adversely impacts the users, their shipmates, the marine industry, and the public in general.” 53 Fed. Reg. 

25926 (July 8, 1988). “Dangerous drug means a narcotic drug, a controlled substance, or a controlled -

substance analog (as defined in section 102 of the Comprehensive Drug Abuse and Control Act of 1970 (21 

U.S.C. 802).” 46 C.F.R. § 16.105 (2010). 

48 46 C.F.R. § 16.113 (2010); 49 C.F.R. § 40.85 (2010). 

49 46 C.F.R. § 16.210 (a) (2010). “Crewmember” includes those engaged or employed on board a vessel 

owned in the U.S. that is required by law or regulation to engage, employ, or be operated by an individual 

holding a merchant mariner credential or acting under the authority of that credential. 46 C.F.R. § 16.105. 50 46 C.F.R. § 16.210 (2010) 

51 46 C.F.R. § 16.220 (2010). 

52 46 C.F.R. § 16.230 (2010). 

53 46 C.F.R. § 16.240 (2010); 46 C.F.R. § 4.03-2 (2010) definition of serious marine incident); 46 C.F.R. § 

4.06-1 (2010) testing shall include tests for evidence of drug as well as alcohol use). 
14 

reasonable cause tests for dangerous drugs.54 The Supreme Court of the United S

has upheld workplace drug testing, provided it is rea

tates 

sonable.55

 

All testing must comply with the procedures in 46 C.F.R. pt. 4056 and drug testing 

laboratories must be certified by the U.S. Department of Health and Human Services 

under the National Laboratory Certification Program (now called the Substance Abuse 

and Mental Health Services Administration (SAMHSA)).57 To ensure compliance, 

employers who violate the mandatory drug testing regulations are subject to civil 

penalties.58

The Coast Guard also requires employers to establish an Employee Assistance 

Program for education and training on drug use.59 Each program must include the effects 

and consequences of drug and alcohol use on personal health, safety, and work 

environment as well as the manifestations and behavioral cues that may indicate drug and 

alcohol use and abuse.60

54 46 C.F.R. § 16.250 (2010) (Reasonable cause also includes alcohol testing). 55 See, Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989) (warrant not required; 

safety sensitive positions); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (drug 

testing must be reasonable). 

56 46 C.F.R. § 16.113 (2010). 

57 49 C.F.R. § 40.81 (2010). Marine employers must use laboratories on the list of accredited labs published 

by Substance Abuse and Mental Health Services Administration (HHS/SAMHSA, formerly HHS/NLCP). 

A notice listing all currently certified laboratories is published in the Federal Register during the first week 

of each month. For the most current list of SAMHSA approved labs see, 75 Fed. Reg. 5,088-89 (Feb. 1, 

2010). SAMHSA labs ensure that mistakes in testing are extremely rare. This is another reason why the 

regulations do not allow the ALJ to dismiss a drug case unless that lab makes a material mistake in the 49 

C.F.R. pt. 40 procedures. 

58 46 U.S.C. § 2115 (2006); 46 C.F.R. § 16.115 (2010). 

59 46 C.F.R. § 16.401 (2010). 

60 Id.
15 

When a mariner tests positive for dangerous drugs, there is an established 

suspension and revocation procedure that not only promotes safety at sea but also 

protects mariners’ rights.61 

Suspension and Revocation Proceedings 

 The purpose of suspension and revocation proceedings is to promote safety at 

sea.62 Suspension and revocation proceedings are remedial and not penal in nature and 

are intended to help maintain standards for competence and conduct essential to 

promoting of safety at sea.63 Hearings must be conducted in accordance with the APA 

and the Coast Guard’s substantive and procedural regulations found at 46 C.F.R. pt. 5 and 

33 C.F.R. pt. 20.64

 The parties to suspension and revocation proceedings are the Respondent, the 

Investigating Officer, and the Administrative Law Judge. The Respondent is the 

merchant mariner who holds an MMC and has tested positive for dangerous drugs. The 

Investigating Officer (IO) is the Coast Guard official designated by appropriate authority 

for the purpose of conducting investigations of marine casualties or maters pertaining to 

the conduct of credentialed merchant mariners.65 The ALJ is the person appointed under 

the Administrative Procedure Act at 5 U.S.C. § 3305 whom the Commandant of the 

 

61 See, UNITED STATES GOVERNMENT ACOUNTABILITY OFFICE REPORT ON COAST GUARD: 

ADMINISTRATIVE LAW JUDGE PROBRAM CONTAINS ELEMENTS DESIGNED TO FOSTER JUDGES’ 

INDEPENDENCE AND MARINER PROTECTIONS ARE BEING FOLLOWED, GAO-09-489, June 12, 2009. 62 46 U.S.C. § 7701 (a) (2006). 

63 46 C.F.R. § 5.5 (2010). 

64 46 U.S.C. § 7702(a) (2006); Administrative Procedure Act, (originally enacted as Pub. L. No. 79-404, 60 

Stat. 237 June 11, 1946), repealed, recodified, and further amended at 5 U.S.C. §§ 550-559, 701-706, 706, 

1305, 3105, 3305, 3344, 4301, 5335, 5372, and 7521); see also, 46 U.S.C. § 7701 (2006), General 

Provisions for Merchant Mariner Suspension and Revocation Proceedings; 46 U.S.C. § 7702 (2006) , 

Administrative Procedure for Suspension and Revocation; 46 U.S.C. § 7703(2006), Bases for Suspension 

and Revocation; and 46 U.S.C. § 7704 (2006), Dangerous Drugs as Grounds for Revocation. 

65 46 C.F.R. § 5.15 (2010). The Investigating Officer may also be an attorney but it is not required. In more 

serious cases, the Coast Guard will also assign an attorney. 
16 

Coast Guard designates pursuant to § 556(b) of that Act for the purpose of conducting 

hearings under 46 U.S.C. §§ 7703 or 7704.66 Besides testing positive for dangerous 

drugs or being convicted of violating a dangerous drug law, mariners are also subject to 

suspension and revocation proceedings for acts of misconduct, negligence, or 

incompetence.67

 If an MMC holder fails a chemical test for dangerous drugs, the holder’s 

employer must report the test results in writing to the nearest Coast Guard Officer-inCharge, Marine Inspection.68 The IO conducts the requisite investigation and prepares a 

Complaint to be served on the Respondent with a copy to the ALJ Docketing Center. The 

Chief Administrative Law Judge then assigns the case to the ALJ next in rotation.69 The 

assigned ALJ has all the powers necessary to conduct a fair, fast, and impartial hearing.70

 In suspension and revocation proceedings resulting from a positive test for 

dangerous drugs, IOs must propose that the ALJ revoke Respondent’s credential.71

However, the IO has the discretion to offer Respondents a settlement agreement to 

provide Respondent an opportunity to prove he or she is cured of dangerous drug use.72

 

66 33 C.F.R. § 20.102 (2010); 46 C.F.R. § 5.19(a) (2010). Section (b) states that the Commandant delegates 

to ALJs the authority to admonish, suspend with or without probation or revoke a merchant mariner 

credential. 

67 See, 46 C.F.R. §§ 5.27, 5.29, and 5.31 (2010). 68 46 C.F.R. § 16.201(c) (2010). The credential holder must be denied employment as a crewmember or 

must be removed from duties which directly affect the safe operation of the vessel as soon as practicable 

and is subject to suspension and revocation. Id. Under 16 C.F.R. § 16.201(d), if an individual who is not a 

credential holder fails a chemical test for dangerous drugs, that individual shall also be denied employment 

as a crewmember or removed from duties which directly affect the safe operation of the vessel as soon as 

possible. 

69 33 C.F.R. § 20.201 (2010). 

70 33 C.F.R. § 20.202 (2010). 

71 46 U.S.C. §7704(c) (2006); 46 C.F.R. § 5.59, and Table 5.569 (2010). 

72 33 C.F.R. § 20.502 (2010). Coast Guard Marine Safety Manual (COMDTINST M16000.10A), Volume 

V, Section E.4.a., available at http://www.uscg.mil/directives/cim/16000-16999/CIM_16000_10A. IOs may 

offer cure settlement agreements to mariners who have not previously tested positive, or in some cases, to 

those who have tested positive more than three (3) years prior whom the Medical Review Officer still 

considers to be good candidates for cure. However, the IO may not offer a cure settlement agreement if a 

serious marine incident triggered the drug test. 
17 

The authority to offer a settlement agreement in a drug case is derived in part from the 

pertinent language in 46 U.S.C. § 7704(c) which reads as follows: 

If it is shown that a holder has been a user of, or addicted 

to, a dangerous drug, the [credential] shall be revoked 

unless the holder provides satisfactory proof that the holder 

is cured. (Emphasis added). 

46 U.S.C. § 7704(c) (2006) 

Settlement Agreements 

Settlement agreements provide Respondents an opportunity to prove that they are 

cured from using dangerous drugs and thereby avoid having their MMCs permanently 

revoked. As stated in the Coast Guard Marine Safety Manual, Volume V, Part C, 

Chapter 4, Section E.4.a., the standard settlement agreement provides that the Respondent 

admit to all jurisdictional and factual allegations in the Complaint. That means 

Respondent must acknowledge being a holder of an MMC and that his/her sample tested 

positive for the particular dangerous drug in question. Further, the settlement agreement 

must provide that the Respondent’s MMC is revoked but that the revocation is “stayed” 

pending satisfactory completion of all terms in the agreement; and, that the Respondent 

enroll in an approved drug rehabilitation program which takes approximately 60 days. 

Upon successful completion of the drug rehabilitation program, the Respondent 

must agree to demonstrate complete non-association with dangerous drugs by submitting 

to a minimum of 12 random, unannounced drug tests to be administered during the 

following 12 months. The drug tests are to be conducted in accordance with Department 

of Transportation testing procedures at 49 C.F.R. pt. 40. During that 12 month period, the 

Respondent is also to attend a substance abuse monitoring program of at least 2 meetings 

per month. 
18 

Upon completing the above requirements, the Respondent is to provide proof 

thereof to the designated Medical Review Officer (MRO) who shall review the evidence 

and issue a letter attesting that the mariner is drug-free and that the risk of subsequent 

drug use is sufficiently low to justify the mariner’s return to work.73 Settlement 

agreements must also provide that upon return to work, the Respondent may also be 

subject to additional testing up to 60 months for a minimum of 6 tests during the first 

year if the MRO deems it necessary.74 Finally, the ALJ must approve the settlement 

agreement.75 The settlement agreement must strictly conform to the above requirements; 

otherwise the ALJ must disapprove it. There is no discretion on the part IO and the ALJ. 

The entire program must be completed by a date certain which is usually 13-15 

months after entering into the settlement agreement. If Respondent fails to complete the 

program, the IO shall file a notice of failure to complete which provides that the 

Respondent has a right to a hearing before an ALJ solely on the issue of whether he/she 

has failed to fulfill the terms of the settlement agreement.76 The ALJ’s decision on 

whether the Respondent has fulfilled the terms of the settlement agreement may not be 

appealed. During the period the Revocation is “stayed,” the Respondent deposits his/her 

MMC with the IO.77 Upon successful completion of the settlement agreement, the IO 

returns the MMC to the Respondent.78 

 

73 A Medical Review Officer (MRO) must be a licensed M.D. or D.O. who has met the experience and 

training requirements in accordance with 49 C.F.R. § 40.121 (2010). The MRO functions in accordance 

with 49 C.F.R. §§ 40.122 - 40.169 (2010). 

74 46 C.F.R. § 16.201(f) (2010). 

75 33 C.F.R. § 20.502 (2010). 

76 Respondents may not be able to complete the cure program due to circumstances beyond their control. In 

those cases, the parties may agree to extend the Settlement Agreement up to 90 days. The ALJ must 

approve extensions beyond 90 days. 

77 46 C.F.R. § 5.201 (2010). 

78 33 C.F.R. § 20.502 (2010). 
19 

Settlement agreements must prescribe that Respondents may not be employed in 

any capacity which requires a Coast Guard issued MMC. On more than one occasion, 

Respondents undergoing cure (without having entered into a settlement agreement) had 

petitioned the ALJ to allow them to work under the authority of their merchant mariner 

credentials prior to completing cure. On both occasions, the ALJ allowed the 

Respondents to work, but on appeal by the IO, the Commandant of the Coast Guard 

overruled the ALJ. In Appeal Decision 2634 (BARRETTA) (2002 WL 32061809 

(CGCDA)), the Commandant held: 

The ALJ is not authorized to permit a mariner to sail under 

the authority of the mariner’s credential until all the 

requirements of cure have been met. The ALJ can only find 

that cure has been established after the mariner has 

successfully completed a bona fide drug rehabilitation 

program, demonstrated a complete non-association with 

drugs for one year following completion of the drug 

rehabilitation program, and the MRO has made a 

determination in accordance with 46 CFR 16.201(f) that the 

mariner is dug-free and his risk of illegal drug use again is 

sufficiently low. During the period of cure, the ALJ may 

stay the order of revocation and continue the hearing to 

allow cure, but the ALJ cannot allow the mariner to work 

under the authority of the mariner’s credential. 

Similarly, in Appeal Decision 2638 (PASQUARELLA) (2003 WL 1891872 

(CGCDA)), the Commandant held, “[u]nder BARRETTA . . . the ALJ may not allow the 

mariner to work under the authority of the mariner’s credentials prior to completion of 

cure. This is accomplished by the Coast Guard retaining possession of the document.” 

This proscriptive language narrowly circumscribes the ALJ’s role in suspension 

and revocation cases involving dangerous drug use. It precludes the ALJ from fashioning 

a sanction to suit the individual mariner’s needs and instead treats all mariners equally 
20 

who have tested positive for dangerous drugs. It is a valid exercise of the agency’s 

authority to ensure that federally credentialed merchant mariners are drug free. No 

exceptions. Allowing merchant mariners undergoing cure to work under the authority of 

their credentials creates an element of risk to safety at sea. Therefore, a Respondent must 

not only successfully complete the drug rehabilitation program and remain drug free for 

one year thereafter, but also the MRO must certify that the Respondent is drug free and 

that the risk of subsequent dangerous drug use is sufficiently low to justify the mariner’s 

return to work. This policy promotes safety at sea and provides mariners with an 

opportunity to cure themselves of using dangerous drugs without having their MMCs 

permanently revoked. 

Hearing Procedure 

The IO will not offer a cure settlement agreement if the Respondent had 

previously completed such an agreement within the last three years, or if the positive 

drug test was triggered as the result of a serious marine incident.79 In the absence of a 

cure settlement agreement, a Respondent who has tested positive for dangerous drugs has 

two choices: 1) defend against the allegations at hearing; or 2) voluntarily surrender 

his/her merchant mariner credential to avoid hearing.80 If Respondent chooses the latter, 

the Coast Guard will take no further administrative action with the result being that 

Respondent permanently gives up all rights to the credential.81 To further protect the 

 

79Coast Guard Marine Safety Manual (COMDTINST M16000.10A), Volume V, Section E.4.a., available at 

http://www.uscg.mil/directives/cim/16000-16999/CIM_16000_10A. 80 46 C.F.R. § 5.203 (2010). 

81 46 C.F.R. § 5.203(b) (2) (2010). 
21 

Respondent’s rights, the IO must be convinced that the Respondent fully understands the 

effects of a voluntary surrender.82

Respondents choosing to defend against the allegations at hearing may appear 

with or without counsel and are entitled to the procedural due process protections 

accorded by the APA and the regulations at 33 C.F.R. pt 20 and 46 C.F.R. pt. 5.83 The 

procedural aspects of the hearing closely follow a civil trial in federal court without at 

jury and the standard of proof in Coast Guard hearings is a preponderance of the 

evidence.84

Central to suspension and revocation proceedings resulting from a positive test for 

dangerous drugs is “[i]f an individual fails a chemical test for dangerous drugs . . . the 

individual will be presumed to be a user of dangerous drugs.”85 To trigger this 

presumption, 

the Coast Guard must prove (1) that the respondent was the 

person who was tested for dangerous drugs, (2) that the 

respondent failed the test, and (3) that the test was 

conducted in accordance with 46 C.F.R. Part 16 [now Part 

40]. Proof of those three elements establishes a prima facie

case of use of a dangerous drug (i.e., a presumption of drug 

use), which then shifts the burden of going forward with 

evidence to the respondent to rebut this presumption. If the 

respondent produces no evidence in rebuttal, the ALJ may 

find the charge proved on the basis of the presumption 

alone.86 (Emphasis added). 

 

82 46 C.F.R. § 5.203(c) (2010). The Investigating Officer will have Respondent sign a written statement 

indicating that he/she understands the legal effect of voluntarily surrendering the credential. 83 Those rights include discovery, having witnesses, records, or other evidence subpoenaed, the right to 

examine and cross-examine witness, the right to introduce relevant evidence into the record, and the right 

to testify to facts or relevant information on his/her own behalf, among other things. 33 C.F.R. pt. 20, and 

46 C.F.R. pt 5. Unlike the civil law tradition, the hearings are oral and open to the public. 

84 33 C.F.R. § 20.701 (2010). Unlike the civil law tradition, the hearings are oral and open to the public. 85 46 C.F.R. § 16.201(b) (2010). 

86 Appeal Decision 2603 (HACKSTAFF) (1998 WL 34073115 (CGCDA)). 49 C.F.R. pt 40 (2010) has 

since replaced the procedures referred to in 46 C.F.R. pt. 16 at the time of the HACKSTAFF Appeal 

Decision. 46 C.F.R. § 16.201 (2010) now states that “[c]hemical testing of personnel must be conducted as 

required by this subpart and in accordance with the procedures detailed in 49 CFR part 40.” 
22 

The IO proves these elements by introducing the Drug Custody and Control form 

and then proves the chain of custody to the certified laboratory. The IO also introduces 

documents and reports from the laboratory showing the handling and testing of 

Respondent’s specimen. The IO accomplishes this process through testimony of the 

laboratory director. Finally, the IO introduces testimony and documentation through the 

Medical Review Officer (MRO) who certifies the particular lab result and testifies to 

notifying the Respondent and to any statements Respondent might have made during the 

interview with the MRO. “Only if there is proof - substantial, reliable, and probative 

evidence - of all these elements has the foundation been laid for the presumption of drug 

use in 46 C.F.R. § 16.201(b).”87 

Within that context, there is some judicial discretion in finding whether one or 

more of those elements have been proved. There is also some judicial discretion in 

finding whether a respondent’s proffer to rebut the presumption of dangerous drug use is 

sufficient. However, the Coast Guard Investigating Officer may appeal the ALJ’s 

decision to the Commandant who may find that the ALJ’s decision was not based on 

substantial, reliable, and probative evidence.88 The respondent may appeal the 

Commandant’s decision to the National Transportation Safety Board (NTSB).89 Both the 

Commandant and the NTSB review carefully the administrative record and the ALJ’s 

reasoning to ensure compliance with the law, regulations, and applicable standard of 

proof. After the NTSB’s decision, the respondent or the Coast Guard may appeal to the 

 

87 Appeal Decision 2603 (HACKSTAF) (1998 WL 34073115 (CGCDA)). For a detailed analysis of the 

steps involved in defending a mariner accused of drug abuse in Coast Guard suspension and revocation 

proceedings see Patricia R. Spivey, Representing the Mariner Accused of Drug Abuse: A Step-By-Step 

Guide, and 21 TULANE. MAR. L J. 445 (1997). 88 This appellate process also ensures that the agency is treated fairly and that the ALJ is following the law. 

89 49 C.F.R. pt. 825 (2010). 
23 

U.S. Circuit Court of Appeals sitting in the circuit where the case was tried or the District 

of Columbia Circuit. 

Under the SAMHSA Certification Program, laboratories must meet strict 

standards to conduct drug and specimen validity tests on urine specimens for federal 

agencies. To become certified, a laboratory must undergo three rounds of performance 

testing plus an on-site inspection. To maintain that certification, a laboratory must 

participate in a quarterly performance testing program plus undergo periodic, on-site 

inspections.90

In view of the foregoing, suspension and revocation proceedings to revoke a 

merchant mariners’ credentials provide little discretion for the judge. While it is always 

possible to discover mistakes, the SAMHSA Certification Program greatly minimizes 

mistakes in the drug testing process. The judge has some discretion in determining 

whether the collection process was performed properly; whether the chain of custody was 

properly maintained; whether the specimen was properly handled and shipped to the 

testing facility; and, whether the testing laboratory is SAMHSA qualified. However, it is 

extremely rare that the judge finds any shortfalls in those areas. If the above elements are 

proved, there is a presumption that the Respondent is a user of dangerous drugs. That 

shifts the burden to the Respondent to prove the opposite. This is very difficult for the 

mariner/Respondent to do because the presumption must be rebutted by the 

preponderance reliable, probative, and credible evidence. This is very different from 

criminal proceedings in which there is no presumption and all the defendant has to do is 

raise reasonable doubt on any of the elements described above in order to be found not 

 

90 “Supplementary Information,” HHS/ SAMHSA Current List of Laboratories Which Meet Minimum 

Standards to Engage in Urine Drug Testing for Federal Agencies, 75 Fed. Reg. 5,088 (Feb. 1, 2010). 
24 

guilty. It is also very different from criminal proceedings because the IO or prosecution 

may appeal, just as in a civil case. That serves as a check on an ALJ. Finally, if the test is 

positive and the mariner has not rebutted the presumption of dangerous drug use, the 

judge has no choice but to revoke the mariner’s credential. 

TESTING THE HYPOTHESIS

Despite differences between the civil law and common law traditions, they 

achieve the same ends, only a little differently. In his article entitled, Anglo-American 

and Continental Systems: Marsupials and Mammals of the Law, Richard Lempert, 

compares the Anglo-American common law tradition and the Continental civil law 

tradition as being profoundly different yet remarkably similar in that they adapted in 

similar ways and shared characteristics most necessary to survive.91 For example, they 

are similar in that both traditions function as instruments of adjudication with unbiased 

decision makers solving disputes in which the norms that are brought to bear are known 

in advance. In the civil law tradition in Europe, the norms are found in codes. In the 

Anglo-American tradition they are found in codes and case law precedent.92 

A second similarity is that both traditions are concerned with judicial competence 

and unbiasedness. In the Anglo-American tradition, professional legal training, 

experience as a lawyer and modes of judicial selection are seen as guarantors of judicial 

competence.93 The Continental civil law tradition achieves judicial competence through 

 

91 Supra, note 1, Lempert, 395-413. 

92 Id. at 400. 

93 This applies to judges of general jurisdiction and special jurisdiction, including the administrative 

judiciary. 
25 

extended professional training designed explicitly to produce judges, by the structure of 

judging as a professional career, and by multi-judge and mixed professional/lay courts.94 

The American tradition promotes unbiasedness primarily by separating the 

judiciary from the legislative and executive branches of government. This is the 

separation of powers concept. Our judges may also be recused and our jurors stricken for 

cause or peremptorily. Federal administrative adjudication promotes unbiasedness by 

insulating the ALJ from the agency’s investigating and prosecuting function and 

providing protections in hiring, pay, and firing. The civil law tradition subscribes to the 

notion that judges separated from a background of private lawyering plus professional 

judicial training, best promotes judicial neutrality and competence. To that extent, both 

systems ensure impartiality and competence as much as practicable. However, it is all to 

no avail if the people in both systems perceive the courts as unfair. “If the people believe 

the courts are fair and competent, the judicial resolution of disputes will be presumed 

legitimate, allowing courts and the law to play the integrative role that state and society 

require.”95 Administrative adjudication is often perceived to be fundamentally unfair 

because the ALJs are employees of the agency.96 

A third similarity is that in both traditions court decisions must be based on the 

rational evaluation of reliable evidence.97 Regardless of which legal tradition it is, how 

judges reach their decisions is critical in ensuring the legitimacy of the court’s verdict. In 

REASON IN LAW, Professors Leif Carter and Tom Burke describe the structure of legal 

 

94 Supra, note 1, Lempert, at 401. 

95 Id. 96 There have been no empirical studies attesting to this perception but it is an issue that respondents often 

raise in their motions to disqualify the ALJ. The federal Administrative Procedure Act at § 554 (d) 

prescribes that the ALJ be separated from the investigative and prosecutorial functions of the agency. 97 Supra note 1, Lempert at 401. 
26 

reasoning as follows: 1) the case facts established in the trial and preserved in the record 

of evidence produced at trial; 2) the facts, events, and other conditions that we observe in 

the world, quite apart from the case at hand, which we call social background facts; 3) 

what the rules of law; that is, the official legal texts created by the state, say about cases 

like this; and 4) widely shared moral values and social principles.98 

In summary, Lemert states that pure versions of the ideal Continental and AngloAmerican systems are nowhere to be found is to be expected. But, they do not have to be. 

What they need are generally accepted ways of deciding cases based on rational and 

unbiased evaluation of reliable evidence.99 

In THE FACES OF JUSTICE AND STATE AUTHORITY: A COMPARATIVE 

APPROACH TO THE LEGAL PROCESS, Mirjan R. Damaška contrasts the Continental (civil 

law) and Anglo-American systems from the standpoint of two structures of judicial 

authority: the hierarchical ideal and the coordinate ideal. 100 He associates the former with 

the Continental civil law system which exemplifies classical bureaucracy characterized 

by a professional corps of officials organized into a hierarchy making decisions according 

to technical standards. The latter he associates with the Anglo-American common law 

system characterized by a body of nonprofessional decision makers organized into a 

single level of authority which makes decisions by applying differentiated community 

standards. He claims, among other things, that the American system, although 

professionalized and centralized, continues to be more deeply permeated by features 

 

98 LEIF H. CARTER AND THOMAS F. BURKE, REASON IN LAW, 9, 10, 7th ed., Pearson Education, Inc., New 

York (2007). 

99 Supra, note 1, Lempert at 410. 100 Supra, note 1, Damaška, 16-29. 
27 

embodied in the coordinate ideal than are judicial administrations of any other industrial 

state in the West.101 

According to Damaška, a judge’s long term in office under the Hierarchical or 

Continental system creates routinization that when combined with specialization tends to 

influence the judge’s viewpoint that routine matters appearing before them do not 

demand individualized justice and allows for emotional disengagement.102 That concept 

can also be applied to Coast Guard administrative proceedings to revoke merchant 

mariners’ credentials for dangerous drug use because the ALJ may not fashion a sanction 

to suit the individual needs of the respondent. Instead, the ALJ must revoke the 

respondent’s credential if the allegation is found proved.103 As noted above, the ALJ can 

consider a respondent’s individualized evidence to rebut the presumption of dangerous 

drug use but rebutting the presumption is much more difficult than simply raising 

reasonable doubt as is done in a criminal case. The idea behind habitualization and 

specialization in the civil law tradition is to separate the decision maker’s personal and 

professional reactions, thus promoting institutional thinking.104 When applied to the 

administrative law judiciary it promotes the requirement that Administrative Law Judges 

must comply with agency policies and procedures, thus promoting institutional 

thinking.105 

 

101 Id. at 18. 102 Id. at 19. 103 It is possible that upon finding the allegation proved, the ALJ could revoke the respondent’s credential 

and then “stay” the revocation for a reasonable period of time (15 months) to allow the respondent to 

demonstrate that he or she is cured of dangerous drug use. 

104 Supra, note 1, Damaška at 19. ALJs must follow their agency’s legislative rules. See also, Moliterno, 

supra, note 36 at 1199. 105 ATTORNEY GENERAL’S MANUAL ON THE APA § 7(b) (1947). 
28 

In the hierarchical structure as Damaška describes, superior reviewers face 

prepackaged facts and issues where the individual destinies of the parties below are less 

visible and equities can be easily disregarded.106 The advantage of this insensitivity to 

individual circumstances is that superior reviewers are free to concern themselves with 

correcting inconsistencies in low-level decisions and with cultivation of broad ordering 

schemes for decision making.107 Damaška’s description of the hierarchical structure 

closely resembles the Coast Guard administrative appellate system, wherein the 

respondent or the Coast Guard investigating Officer appeals the ALJ’s decision based on 

specific objections in the record. Designated staff attorneys in the Commandant’s Office 

of Maritime and International Law prepare the appellate decision for the Commandant’s 

signature. Once the Commandant issues a decision, the respondent may appeal that 

decision to the National Transportation Safety Board. This procedure allows independent 

agency officials to ensure that Coast Guard administrative adjudication follows the law 

and policy before the mater goes to the courts.108 

Damaška discusses two basic approaches to technical decision making: 1) 

officials assess the consequences of alternative decisions and then choose the one that 

seems most attractive in terms of a posited organizational goal; and, 2) the legalistic 

approach in which officials are expected to make a particular decision when facts are 

found that are specified under a normative standard.109 The decision’s propriety is 

evaluated in terms of fidelity to the applicable standard. In administrative adjudication, an 

 

106 In Coast Guard drug cases, the ALJ may consider a respondent’s personal situation in the context of his 

or her attempt to rebut the presumption of dangerous drug use after finding the test positive. For example, a 

respondent may proffer that someone put marijuana in his brownies on the day prior to the drug test or that 

he was riding in a vehicle with all of its windows rolled up and everyone was smoking marijuana, except 

him. 

107 Supra, note 1, Damaška at 20. 108 Id. See also, 33 C.F.R. § 20.1001(2010); 49 C.F.R. § 825.15 (2010) 

109 Supra, note 1, Damaška at 21. 
29 

example of fidelity to the applicable standard is shown by Commandant Appeal 

Decisions in PASQUARELLA and BARETTA, above. A point can be reached where 

adhering to a standard can frustrate achieving desired results but nevertheless the 

standard must be applied, even if it produces negative results.110 

Damaška discusses two variations of legalism: pragmatic and logical.111 The 

pragmatic variation views social life as being so complex and fluid that decisional 

standards are targeted to narrow areas, referring to concrete sets of facts. In the logical 

variation, dominant views are formed at the top and percolate down to lower officials; 

otherwise they would be more vulnerable to the layman’s call for individualized justice. 

It is normal in a hierarchically structured organization for the logically legalistic attitude 

of high authority to set the tone.112 This vertical ordering of professional officials with 

logical rather than pragmatic legalism works best and this is what federal ALJs 

experience. 

In discussing the Coordinate ideal, Damaška refers to the Anglo-American system 

as “vested in amateurs . . . leaving little opportunity for the spirit of exclusivity to 

develop.”113 The Coordinate ideal does not allow enough time for the judge to separate 

personal and official attitudes as is the case with career officials.114 

He says that the major difficulty in such an organization of temporary officials is 

how to develop a reliable memory and how to handle complex problems and functions 

 

110 Id. 111 Id. at 22. 112 Id. 113 Id. at 23. 114 Id. at 24. This broad, sweeping, factual conclusion is not shown to be based on any empirical evidence. 

It makes no difference to the individual litigants and society how a judge is trained and selected so long as 

the judge’s decision is based on the rational evaluation of reliable evidence. See, Lempert’s third similarity 

between the civil law and common law traditions – that court decisions must be based on the rational 

evaluation of reliable evidence. 
30 

continuously rather than periodically. Thus, it is inefficient and frustrating to consistency 

and predictability of decision making.115 A legislative fix can help make decision making 

uniform but it does not do much good if judges are free to disobey or nullify the 

regulation’s mandate.116 As shown above, Coast Guard ALJs adjudicating drug cases are 

not free from superior controls and their discretion is limited to finding facts and applying 

the law within the strict confines of agency policy. 

Strict hierarchical, top down control applies to administrative adjudication in 

general and Coast Guard administrative adjudications involving dangerous drugs in 

particular. As Professor James E. Moliterno states in The Administrative Judiciary’s 

Independence Myth, 

. . . administrative [law] judges must follow the agency's legislative rules, 

but, perhaps more controversially with some administrative [law] judges, 

they must also follow other statements or indicators of agency policy. 

They are, after all, agents of the agency and have no independent authority 

to divine policy. The only true source of their authority is the agency 

itself, and their judgment must be informed by the agency's [judgment] 

and not their own sense of good policy. This aspect is an important 

distinction between administrative [law] judges and Article III judges and 

their state court counterparts.117

CONCLUSION

In view of the foregoing, Coast Guard administrative proceedings to revoke 

merchant mariners’ credentials for dangerous drug use resemble proceedings in the civil 

law tradition. 

Applying Lempert’s views, the strict norms are found in codes as expressed in 

laws, regulations, and Commandant Appeal Decisions. Judicial competence and 

 

115 Supra, note 1, Damaška at 25. 116 Id. 117 Supra, note 36 at 1199. (Footnotes omitted). 
31 

guarantees of unbiasedness are guaranteed by separating ALJs from the investigative and 

prosecutorial functions of the agency. The fairness of the decision and its fidelity to the 

norms are based on the ALJ’s rational evaluation of reliable evidence. 

Applying Damaška’s points, Coast Guard administrative proceedings to revoke 

merchant mariners’ credentials for dangerous drug use follow the civil law’s hierarchical 

structure. Further, Coast Guard ALJ’s make decisions according to technical standards 

and are insensitive to individual circumstances. Finally, a vertical ordering of 

professional officials applying logical rather than pragmatic legalism evaluates the ALJ’s 

decision in terms of fidelity to technical standards designed to maintain competence and 

conduct essential to the promotion of safety at sea.118 

 

118 46 C.F.R. § 5.5 (2010). 
32 

BIBLIOGRAPHY

Cases: 

Appeal Decision 2638 (PASQUARELLA) (2003 WL 1891872 (CGCDA)). 

Appeal Decision 2634 (BARRETTA) (2002 WL 32061809 (CGCDA)). 

Appeal Decision 2603 (HACKSTAFF) (1998 WL 34073115 (CGCDA)). 

Butz v. Economou, 438 U.S. 478 (1978). 

Chevron v. Natural Resources Defense Council, 476 U.S. 837 (1984). 

Federal Maritime Commission v. South Carolina State Port Authority, 535 U.S. 743 

(2002). 

Johnson v. Robinson, 415 U.S. 361 (1974). 

National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). 

Oestereich v. Selective Service Board , 393 U.S. 233 (1968). 

Moore v. City of East Cleveland, 431 U.S. 494 (1977). 

Public Utilities Commission v. United States, 355 U.S. 534 (1958). 

Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989). 

Weinberger v. Salfi , 422 U.S. 749 (1975). 

Books: 

LEIF H. CARTER AND THOMAS F. BURKE, REASON IN LAW, 8, 9, 7th ed. Pearson 

Education, Inc., New York (2007). 

MIRJAN R. DAMAŠKA, THE FACES OF JUSTICE AND STATE AUTHORITY: A 

COMPARATIVE APPROACH TO THE LEGAL PROCESS, 16-29 and 71-96, Yale University 

Press, New Haven (1986). 

MARY ANN GLENDON, PAOLO G. CAROZZA, and COLIN B. PICKER, COMPARATIVE 

LEGAL TRADITIONS, 3rd ed., Thompson/West, St. Paul, MN (2008). 

MARTIN SHAPIRO, WHO GUARDS THE GUARDIANS? JUDICIAL CONTROL OF 

ADMINISTRATION, 112, The University of Georgia Press, Athens, Georgia (1988). 
33 

Shorter Works in a Collection: 

Richard Lempert, Anglo-American and Continental Systems: Marsupials and Mammals 

of the Law, CRIME, PROCEDURE, AND EVIDENCE IN A COMPARATIVE AND 

INTERNATIONAL CONTEXT, ESSAYS IN HONOUR OF PROFESSOR MIRJAN DAMAŠKA, 

John Jackson, Maximo Langer, and Peter Tillers, eds., Hart Publishing, Oxford and 

Portland, Oregon (2008). 

Periodical Materials: 

John W. Hardwicke, The Central Panel Movement, 53 ADMIN. L. REV. 419, 423 (2001). 

David W. Heynderickx, Finding Middle Ground: Oregon Experiments with a Central 

Panel for Contested Case Proceedings 36 WILLAMETTE L. REV. 219, 224 (2000). 

Maximo Langer, Revolution in Latin American Criminal Procedure: Diffusion of Legal 

Ideas from the Periphery, 55 AM. J. COMP. L 617, 618-619 (2007). 

James E. Moliterno, The Administrative Judiciary’s Independence Myth, 41 WAKE 

FOREST L. REV. 1191, 1211 (Winter 2006). 

Patricia R. Spivey, Representing the Mariner Accused of Drug Abuse: A Step-By-Step 

Guide, 21 TULANE MAR. L J. 445 (1997). 

Government Materials: 

ATTORNEY GENERAL’S MANUAL ON THE APA (1947). 

COAST GUARD MARINE SAFETY MANUAL (COMDTINST M16000.10A), Volume V, 

Section E.4.a., available at http://www.uscg.mil/directives/cim/16000-16999/CIM_16000_10A. 

UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE REPORT ON COAST GUARD: 

ADMINISTRATIVE LAW JUDGE PROBRAM CONTAINS ELEMENTS DESIGNED TO FOSTER

JUDGES’ INDEPENDENCE AND MARINER PROTECTIONS ARE BEING FOLLOWED, GAO09-489, June 12, 2009. 

Statutes: 

Administrative Procedure Act, (originally enacted as Pub. L. No. 79-404, 60 Stat. 237 

June 11, 1946), repealed, recodified, and further amended at 5 U.S.C. §§ 550-559, 701-

706, 1305, 3105, 3305, 3344, 4301, 5335, 5372, and 7521) (2006). 

Treatises: 

RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE, 5th ed. Wolters Kluwer, New 

York (2010). 
34 

Code of Federal Regulations: 

5 C.F.R. pt. 337 (2010) OMB Examining System (ALJs) 

5 C.F.R. pt. 930 (2010) Subpart B, OMB Administrative Law Judge Program 

5 C.F.R. pt. 1201 (2010) Practices and Procedures, Subpart D, Procedures for Original 

Jurisdiction Cases 

15 C.F.R. pt. 904 (2010) National Oceanic and Atmospheric Administration, Department 

of Commerce, Civil Procedures 

20 C.F.R. pt. 404 (2010) Federal Old Age, Survivors and Disability 

20 C.F.R. pt. 702 (2010) Longshoremen’s and Harbor Workers’ Compensation Acts and 

Related Statutes 

29 C.F.R. pt. 2200 (2020) Occupational Safety and Health Review Commission 

29 C.F.R. pt. 2700 (2010) Federal Mine Safety and Health Review Commission 

33 C.F.R. pt. 20 (2010) Coast Guard Rules of Practice, Procedure, and Evidence for 

formal Administrative Proceedings of the Coast Guard 

46 C.F.R. pt. 5 (2010) USCG Marine Investigation Regulations – Personnel Action 

49 C.F.R. pt. 40 (2010) Procedures for Transportation Workplace Drug and Alcohol 

Testing Programs 

49 C.F.R. pt. 821 (2010) National Transportation Safety Board – Rules of Practice in Air 

Safety Proceedings 

49 C.F.R. pt. 825 (2010) National Transportation Safety Board – Rules of Procedure for 

Merchant Marine Appeals from decisions of the Commandant, U.S. Coast Guard 

49 C.F.R. pt. 1503 (2010) Transportation Security Administration 

Federal Register: 

53 Fed. Reg. 25926 (July 8, 1988) 

74 Fed. Reg. 11,216 (March 16, 2009). 

75 Fed. Reg. 5,088 (Feb. 1, 2010).