UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

MURRAY R. ROGERS 

Respondent. 

Docket Number: CG S&R 04-0537 

CG Case No. 2 126028 

Order Ruling on Proposed Sanctions 

Based on Non-Compliance with Subpoena 

Issued: March 25.2005 

Issued bv: Jeffie J. Massev. Administrative Law Judee 

BACKGROUND 

This administrative proceeding was initiated on October 7, 2004, when the United States 

Coast Guard ("USCG herein) filed a Complaint seeking the suspension of certain documents 

issued to Respondent Murray R. Rogers, based on alleged acts which occurred on or about June 

20, 2004 and June 22,2004, while Respondent was serving as Master of the BAILEY ANN. 

Respondent filed an Answer to said Complaint on October 28,2004. 

Since this proceeding was assigned to the undersigned, there have been many procedural 

issues that I have addressed in a series of Orders. Rather than repeating the lengthy procedural 
history of this proceeding in this Order, I adopt the "Background" section of each Order I have 

issued in this proceeding, and incorporate them herein, as though reprodwed in their entirety.' 

I have before me the Respondent's Motion to Dismiss, tiled on or about March 1,2005. 

This Motion to Dismiss is the direct product of an Order I issued on February 9,2005, inviting 

the Respondent to propose sanctions for the USCG's failure to respond to a subpoena I issued to 

them on January 12,2005. 

Respondent requested that I issue the subpoena after I determined that LCDR Ronnie 

Patrick, fonnerly the lead Ilivestigating Officer in this proceeding, could be called as a witness 

by the ~espondent.' Once the deadline for compliance with the subpoena had passed without 

compliance, the Respondent moved for a continuance of the pending hearing date. During a 

telephonic Pre-Hearing Conference initiated by the undersigned, the USCG indicated it was not 

going to comply with the subpoelia. I gave them an additional day to make a written filing 

confirming this oral assertion. The next day, a short statement was filed by the USCG, 

confirming that there would be no compliance with the subpoena.3 Notably, the USCG never 

filed a Motion to Quash or Modify the subpoena, as contemplated by 33 CFR $20.609. 

I also have before me a response to the Respondent's Motion to Dismiss, filed by the 

USCG on or about March 8. In that response, the USCG rejects most of the arbwments made by 

the Respondent in his Motion to Dismiss-with one notable exception: The USCG wholly fails 

' A lenbqhy procedural statement will not substantively contribute to the reader's understanding 

of this Order, as there is only one procedural issue before me at tbis time. 

'This ruling was made by me on the record on January 5, 2005. The entire discussion leading up 

to my ruling is contained in a transcript ofproceedings which took place that day. 

1 ,411 of these details are contamed in the February 9 Order requesting sanction proposals from 

the Respondent. 
to address Respondent's request that this proceeding he dismissed (as the sanction for refusing to 

comply with the subpoena). They do, however, attempt to revisit other lssues in this proceeding 

by asking me to '.reconsider her prior Orders and set this matter for hear~ng as soon as possible."4 

DISCUSSION 

The subpoena requested by the Respondent was issued because, on review of the record 

before me, 1 determined that the records requested constituted appropriate discovery requests 

relevant to the issues in this proceeding. The plain language of 33 CFR $20.608(a) provides that 

any party may request the ALJ to issue a subpoena "for . . . . the production of books, papers, 

documents or any other relevant evidence during di.scove<y or for any hearing [emphasis 

supplied]." Per the provisions of 33 CFR @20.202, it is within the power of the undersibned to 

issue subpoenas, order discovery, hold hearings, and regulate the course of hearings, to name just 

a few of the powers enumerated there. Together with the provisions contailled in Subpart F of 

Part 20, Title 33 of the Code of Federal Rebwlations, the authority and responsibility of guiding 

the course of discovery in a Suspension & Revocation ("S&R herein) proceeding lies 

exclusively with the presiding ALJ. 

1 find these reglatory provisions to be a codification of the principals contained in the 

Administrative Procedure Act ("APA" herein). In fact, the enumerated powers and dutizs of an 

ALJ, as codified in 33 CFR Part 20 are virtually a mirror image of those contained in 5 USC 

$556(c), which lists powers authorized for .'e~nployees presiding at [due process] hearings." I 

insert the words "due process" here because that is x!hat APA judges do-they conduct "due 

process" hearings. APA judges are easily distinbqished from other "administrative judges" or 

4 Closing parajgaph, at page 1 1. 
"hearing examiners" particularly because of the responsibilities placed upon us by the APA (and 

by re~wlations written to empower APA Judges by specific agencies). As discussed in the 

Introduction of the Manual for Administrative Law Judges (2001 Interim Internet Edition): 

Historically, . . . the need for administrative hearing officers was 

recognized well before the APA [footnote omitted]. The large 

number of cases where an agency was required, statutorily or 

constitutionally, to afford a hearing impelled federal agency heads 

to delegate responsibility for conducting those hearings to 

subordinates [footnote omitted]. However, these subordinates 

were subject to the direction and control of the agency, and thus 

perceived as being prone to make findings favorable to the agency. 

Considerations of fairness led to granting these hearing officers 

increasing degrees of independence, culminating in the prcwisions 

of section 11 of the APA [footnote omitted15, which accords the 

Administrative Law Judge (ALJ) [footnote omitted] a unique 

status[footnote omitted]. 

Although an employee of the agency, the ALJ is responsible for 

conducting formal proceedings, interpreting the law, applying 

agency rebwlations, and carrying out the policies of the agency in 

the course of administrative adjudications [footnote omitted]." 

In April of 1998, the USCG proposed significant changes in its procedural rules, as 

applicable to S&R Proceedings. In proposing these changes (which became effective in May 

1999), the explanatory comments specifically addressed evidence in S&R Proceedings: 

3. Changes in the Rules of Evidence. 

This rule proposes to apply the Administrative Procedure Act 

(APA) rules of evidence as the standard for evidence brought in 

S&R cases. In current practice some ALJs apply the Federal Rules 

The successors to the contents of Sectlon 11 of the APA are now found malnly in 5 USC 5s 

3105 (1994). 5372 (1994 and Supp. V 1999), and 7521 (1994). 

Mullins, Morel1 E., Manual for Administrative Law Sudees, 2001 Interim Internet Edition. 
of Evidence. This proposed rule seeks to have one consistent 

standard, the APA standard, used in S&R cases.' 

The APA contains the following language concerning evidence: 

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

documentary evidence, to submit rebuttal evidence, and to wnduct 

such cross-examination as may be required for a full and true 

disclosure of the facts.' 

In the opinion of the undersigned, my role as an APA Judge is to direct discovery and the 

course of each proceeding in such a way that each party is guaranteed the rights expressed in 

the APA. By doing so, I am then able to satisfy my obligation in each proceeding before me 

with respect to compiling a record that contains a full and true disclosure of the facts. 

A primary tool by which to obtain this goal is discovery.9 The plain language of 33 CFR 

Part 20 gives each ALJ discretion to enter such discovery orders as that ALJ deems 

appropriate in each proceeding. In this case, based on the record before me as of January 12, 

2005, I made the determination that the documents and things identified by the Respondent 

in his subpoena request constituted a search for evidence which would assist him in 

presenting his case, defending his position, and ultimately, supporting the full and true 

disclosure of facts in this proceeding. At the time I issued the subpoena, I was confident that 

my actions were consistent with the APA, well within the powers granted me by 33 CFR Part 

20, and the most efficient means available to keep the proceeding on its procedural track. 

' Notice of Proposed Rulemaking, Rules of Practice, Procedure and Evidence for Administrative 

Proceedings of the Coast Guard. 63 FR 16731, atl6733. 

9 USC 5 556(d). 

9 Another tool is cross-examination of witnesses at the hearing. In my experience, meaningful 

cross-examination most often is preceded by meaningful discovery. 
Nothing I have read or heard since January 12, 2005, has caused me to waiver the slightest in 

that belief. 

The USCG argues (in its response to the Motion to Dismiss) that there was, somehow, a 

failure to follow the procedures outlined in Part 20, and so the Respondent's discovery 

(subpoena) request should have been denied. Nothing is gained by my attempting to detail 

the USCG's argument in this Order. Suffice it to say I have carehlly considered it, noted 

that it is entirely without supporting authority, and have concluded that it is without merit. 

But a related point needs to be made-let us assume, arguendo, that there was some 

procedural glitch attendant to the issuance of the subpoena. What "right" does that bestow 

on the USCG? Does a procedural glitch in the issuance of a discovery order or subpoena 

entitle the party receiving the request to wholly ignore the request? 

Without directly saying so, the USCG's posture in this proceeding seems to answer that 

question with a resounding "yes." With an annoyed tone that virtually jumps out of its 

p~eadings'~, the USCG suggests that its motive or conduct in initiating S&R investigations, 

its decision to arbitrarily increase proposed sanctions in serial complaints, or its decision to 

ignore a subpoena issued to it by an ALJ, are all actions that are not subject to review (or 

possible sanctions) under any "due process" argument. 

Although these are all issues brought up by the parties in the pleadings before me today, 

the only issue I need to decide is what sanction to impose for the USCG's failure to 

recognize my authority to issue a subpoena and its duty to comply with it." From the plain 

'' In a previously filed pleading, the USCG asserted that "animosity" was a normal bi-product of 

S&R proceedings. In its Response, this animosity is, at most, thinly veiled. 

" This issue is clearly distinguishable from an issue the USCG attempted to raise---whether the 

Respondent has a "due process right." 
language of the regulations, if a party receiving a subpoena has some objection to it, that 

party is entitled to file a Motion to Quash or Modify the subpoena, as detailed in 33 CFR 

420.609. If a party successfully argues an issue of relevancy or unreasonableness, then the 

ALJ can decide to quash or modify the subpoena. In this proceeding, the Motion would have 

been due January 28,2005.'~ 

The USCG did not file a Motion to Quash or Modify. The USCG did not comply with 

the subpoena. The USCG did not inform anyone that they didn't intend to comply with the 

subpoena until they were asked during the February 3,2005 telephonic Pre-Hearing 

Conference. As if it were some mitigating (or relevant) factor, the USCG stated in its 

February 4,2005 filing that it was going to continue to provide the Respondent "with full 

discovery as required by 33 CFR 420.601 & 20.602." 

The APA prohibits the imposition of a sanction "except on consideration of the whole 

record or those parts thereof cited by a party and supported by and in accordance with the 

reliable, probative and substantive evidence." 5 USC 556(d). I have taken considerable time 

to ponder the appropriate sanction in this proceeding. I have carefully considered each and 

every suggested sanction contained in 33 CFR 520.607. I have determined that none ofthe 

sanctions contained in 520.607, either alone or in combination, are an appropriate remedy for 

the situation encountered in this proceeding. 

My decision about the appropriate sanction is based on my review of the entire record 

before me. I have re-read all of the pleadings, beginning with the Complaint, on through the 

last pleading filed by the Respondent on March 18,2005. To give every benefit possible to 

the USCG, I have searched the record for some indication that the USCG had a legitimate 

'* Calculated per the provisions of 33 CFR §20.609(a)(2) 
reason for derailing the procedural track of this case. I have sought to understand the 

rationale that would lead the USCG to conclude that it was appropriate to replace my 

judgment regarding appropriate discovery wit11 its own. I conclude that this record is devoid 

of any legitimate rationale in support of the USCG's action in this proceeding.'3 

Taken as a whole, the record in this proceeding indicates that the USCG bas concluded 

that I was without the authority to issue the subpoena requested by the ~es~ondent.'~ Based 

on that conclusion, the USCG affirmatively passed up its regulatory right to request that the 

subpoena be modified or quashed. The practical result of the conduct of the USCG is that 

my ability, as the presiding judge, to implement the safeguards of the APA concerning the 

search for a "full and true disclosure of the facts" in this proceeding has been vitiated. 

The right of the government to deprive a person of life, liberty, or property is subject to 

the general restrictions contained in both the Fifth and Fourteenth Amendments to the United 

States Constitution. Even when exercising a legitimate government interest-such as the 

monitoring of USCG issued mariner's credentials-the extent of the government's powers 

are not without limit. 

When the CSCG elected to have its S&R proceedings govenled by the concepts of the 

APA, it guaranteed to every mariner a right to due process in those proceedings. The ALJ is 

the designated agency official empowered to preside over and regulate every aspect of S&R 

hearing procedures-including decisions concerning discovery. For the govemment-the 

agency-the USCG-to intentionally pursue a course of conduct that vitiates a presiding 

" I submit that the USCG could have-and should have-complied with the subpoena, then 

complaii~ed about its issuance in an appeal processed after the Decision & Order was issued. 

" It would not be a stretch to say that the USCG's pleadings in this proceeding indicate it does 

not believe any discovery, past that required by 33 CFR 5520.601 62 602 is appropriate. 
ALS's duty and authority to preside over and regdate the course of S&R hearing procedures 

is unconscionable. So that the record is clear, this sanction is being imposed because the 

USCG chose to disrespect the system designed by the Agency, in compliance with APA 

requirements, for the coilduct of S&R proceedings. Under the circumstaiices of this 

proceeding, to allow the USCG to proceed to hearing, while the Respondent's ability to 

present his case and defend against the allegations made against him has been immeasurably 

impaired, would be a mockery of the phrase "due process." 

I need not find that a Respondent in an S&R proceeding has a "due process right to 

discovery" because a more basic right to due process exists-the right that flows from the 

structure of the hearing process itself. This sight is dependent upon a presiding ALJ being 

allowed to exercise the discretion bestowed upon her by the regulations. This right is equally 

dependent upon the parties complying with the orders of the presiding ALS-even when they 

strongly disayee with them. 

Based on the entire record before me, the only appropriate remedy to counter the 

unconscionable action of the USCG in this proceeding, is to terminate their right to pursue 

this S&R proceeding against the Respondent: with prejudice. 
ORDER 

IT IS HEREBY ORDERED that the Complaint in this proceeding, filed on or about 

October 7,2004, is dismissed with prejudice. 

Done and dated March 25,2005 

New Orleans, Louisiana 
CERTIFICATE OF SERVICE 

I hereby certify that I have forwarded the attached document by First Class Mail postage 

paid, and by facsimile transmission where indicated, to the following persons: 

Ensign Timothy Tilghman 

U S Coast Guard 

Morgan City MSO 

800 David Drive Room 232 

Morgan City, LA 70380 

(by fax and mail) 

W. Gerald Gaudet 

James P. Doherty, 111 

700 St. John Street Suite 400 

P. 0. Box 3527 

Lafayette, LA 70502 

(by fax and mail) 

ALJ Docketing Center 

U.S. Custom House, Room 4 12 

40 S. Gay Street 

Baltimore, MD 2 1202 

L:; .,y' -/." 

C, ,q.t&& ..&%MJ& ,, . Liv~a Torres 

Paralegal to 

Jeffie J. Massey 

Administrative Law Judge 

Done and Dated on March 25,2005 at 

New Orleans, Louisiana