UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

UNITED STATES OF AMERICA

UNITED STATES COAST GUARD

vs.

MERCHANT MARINER DOCUMENT

Issued to: ROCKY MEL CONTRERAS

DECISION OF THE

VICE COMMANDANT

ON APPEAL

NO. 269 3

This appeal is taken in accordance with 46 U.S.C. § 7701 et seq., 46 C.F.R. Part

5, and 33 C.F.R. Part 20.

By a Decision and Order (hereinafter "D&O") dated March 17,2009, Walter

Brudzinski, an Administrative Law Judge (hereinafter "ALJ") ofthe United States Coast

Guard, at San Diego, CA, revoked the Merchant Mariner Document of Mr. Rocky Mel

Contreras (hereinafter "Respondent") upon finding proved five counts ofmisconduct.

The misconduct charges were that: Respondent refused to stand his lookout watch in the

manner ordered by the Chief Mate on the MN LIBERTY EAGLE; that Respondent, on

three separate occasions, failed to obey the orders ofthe Master ofthe MN LIBERTY

EAGLE to report for master's logging and dismissal procedures; and, that Respondent

failed to reveal a 2003 conviction for vandalism on an April 2005 official Coast Guard

application (Form CG-7l9B). Through the same D&O, Judge Brudzinski found one

additional count ofmisconduct not proved and dismissed, without prejudice, two counts
CONTRERAS NO. 2693

alleging violation a/law or regulation. At all times during the proceeding Respondent

appeared pro se and appeals pro se.

PROCEDURE & FACTS

At all times relevant to this proceeding, Respondent was the holder of a Coast

Guard issued Merchant Mariner Document that authorized him to serve as an Able

Seaman. [D&O at 12; Transcript ofthe Proceedings (hereinafter "Tr.") at 25,27-28]

From December 19,2006, through February 18,2007, Respondent served on the

MN LIBERTY EAGLE, a U.S. flagged merchant vessel. [D&O at 12; Tr. at 77-79,

Investigating Officer Exhibit (hereinafter "10 Ex.") 1] On February 14,2007,

Respondent was the Able Bodied Seaman on the 0400-0800 watch. [D&O at 12; 10 Ex.

5] During that watch, Respondent refused to follow the orders ofthe Chief Mate to stand

his lookout watch and stop being disruptive by questioning the Chief Mate's handling of

a traffic situation and insisting that Captain Mahan, the master ofthe MN LIBERTY

EAGLE, be called to the bridge. [D&O at 12; Tr. at 79-80]

As a result ofRespondent's refusal to follow the orders ofthe Chief Mate,

Captain Mahan ordered Respondent to report to his office on February 15, 2007, for

master's logging and dismissal procedures. [D&O at 13; Tr. at 82] Under 46 U.S.C.

§ 11501, when a seaman willfully disobeys a lawful command at sea the master may

punish him in accordance with this statute. The master must also make an entry in the

ship's logbook as well as provide specific notice to the offending seaman in accordance

with 46 U.S.C. § 11502. Respondent refused to participate in the logging and dismissal

procedures and walked out ofCaptain Mahan's office. [Id.] On February 16,2007, the

Master, Chief Engineer, and Bosun approached Respondent in his quarters and ordered

2
CONTRERAS NO.'

him to the Master's office for logging and dismissal procedures. [D&O at 13; Tr. at 83;

10 Ex. 1 at 44; 10 Ex. 5] Respondent again refused to participate in the logging and

dismissal procedures. [D&O at 13; Tr. at 83] On February 17,2007, Respondent was

ordered again to appear before the Master for logging and dismissal proceedings. [D&O

at 13; 10 Ex. 1 at 44; Tr. at 83-84] Respondent still refused to participate. [Id.]

As a result ofthe Coast Guard's investigation into the allegations of misconduct

against Respondent, it was discovered that Respondent had not listed all of his criminal

convictions on an April 4, 2005, application for a Seafarer's Training Certification and

Watchkeeping (STCW) endorsement. While Respondent's application listed a 1988

conviction for burglary, a 1989 conviction for a dangerous weapon violation, and a 2003

conviction for battery, it failed to list a 2003 conviction for vandalism. [D&O at 13; 10

Ex. 9]

The Coast Guard filed its original Complaint against Respondent's Merchant

Mariner Document with the Coast Guard ALJ Docketing Center on March 29, 2007.

[D&O at 3] Via the original Complaint, the Coast Guard alleged that Respondent

committed three counts of misconduct. The first count alleged that Respondent failed to

follow the orders ofthe mate on watch during his watch on January 30, 2007. The

second count alleges that on February 14,2007, Respondent failed to follow the orders of

the ChiefMate. Count Three alleged that Respondent failed to follow the orders ofthe

Master to report for logging and dismissal procedures on February 15,2007.

Respondent filed an Answer to the Complaint on April 16,2007, wherein he

neither admitted nor denied the Complaint's jurisdictional and factual allegations but,

instead, alleged as affirmative defenses: a labor dispute, an Equal Employment

3
CONTRERAS NO. '

Opportunity Commission claim, and a California civil action. [D&O at 3] In asserting

these defenses, Respondent contended that he was subjected to discrimination and

retaliation for filing a grievance against his marine employer.

On April 18, 2007, the matter was assigned to the Honorable Parlen L. McKenna

for adjudication. Thereafter, Respondent engaged in an extensive motions practice filing

over 100 motions while ALJ McKenna presided over the case. [D&O at 6] On May 23,

2007, Respondent filed a Motion for Change ofVenue from Houston, Texas, to San

Diego, California. Subsequently, on July 7, 2007, Respondent filed a Motion to Dismiss

based on allegations that the Investigating Officer, Lieutenant Omar Vasquez, Coast

Guard Sector San Diego, California, violated Respondent's due process rights. In

support of his Motion to Dismiss, Respondent submitted tape recordings he made of

conversations with Lieutenant Vasquez and ALJ McKenna. [D&O at 32; Respondent's

Motion to Dismiss dated July 7, 2007]

On July 13,2007, ALJ McKenna issued several orders including one granting the

Motion for Change of Venue and denying the Motion to Dismiss based upon

Respondent's allegation that Lieutenant Vasquez had violated his rights. [D&O at 32;

Order Granting Motion to Change Venue; Order Denying Respondent's Motion to

Dismiss Based on Retaliation by Liberty Maritime Corporation through the Seafarers

International Union]

The Coast Guard amended its original Complaint on August 21, 2007. The

Amended Complaint alleged the original three counts of misconduct plus an additional

five counts. Counts Four and Five alleged that Respondent refused to follow the orders

ofthe Master to report for logging and dismissal procedures on February 16 and 17,

4
CONTRERAS NO.. 'Q693

2007. [D&O at 5-6] Count Six alleged that on April 4, 2005, Respondent applied for a

Seafarer's Training Certification and Watchkeeping (STeW) endorsement and failed to

disclose a 1996 conviction for property damage. Counts Seven and Eight alleged that on

or about June 25,2007, Respondent violated California Penal Code, Title 15, Chapter 1.4

section 631, by willfully recording a telephonic conversation without the consent ofthe

other party (Lieutenant Vasquez and ALJ McKenna). On September 5, 2007,

Respondent filed his Answer to the Amended Complaint denying the jurisdictional and

factual allegations. [D&O at 6; Respondent's Answer to Amended Complaint]

On July 24, 2007, Respondent filed a motion to recuse ALJ McKenna.

Respondent renewed this motion on September 12, 2007. On December 4,2007, during

a prehearing conference Judge McKenna denied the motions for recusal based on "black

letter law which holds a party cannot create the ground upon which disqualification of a

judge is sought." (citations omitted) [Order Granting Motion for Recusal at 4] On

December 8, 2007, Respondent filed ten separate motions calling for Judge McKenna's

recusal. [Id. at 5] Upon further reflection and consideration, Judge McKenna granted

Respondent's motion for recusal on December 18,2007, stating "based on the unusual

circumstances ofthis case, the public perception of a fair and impartial judicial system

would be enhanced ifthe Motion for Recusal was granted, and the Amended Complaint

was decided by another judge." [Id. at 6] The Coast Guard's Chief ALJ then reassigned

the case to ALJ Brodzinski on January 8, 2008. [D&O at 6]

The hearing in the matter convened on August 19, 2008, at San Diego, California.

At the opening ofthe hearing, the Coast Guard moved to amend the complaint. ALJ

Brodzinski granted the Coast Guard's motion to amend Count Six ofthe Complaint to

5
CONTRERAS NQ. 2693

reflect that Respondent failed to disclose a 2003 conviction for vandalism instead of a

1996 conviction for property damage. Judge Brodzinski denied the Coast Guard's

motion to amend Counts Seven and Eight to reflect a violation ofCalifornia Penal Code,

Title 15, Chapter 1.4, section 632 (eavesdropping) vice section 631 (wiretapping). [D&O

at 9; Tr. at 16] ALJ Brodzinski then dismissed Counts Seven and Eight upon fmding that

even if he had granted the Government leave to amend those Counts, the recordings did

not constitute a violation of Section 632 ofthe California Penal Code because the statute

exempted judicial and administrative proceedings. [D&O at 11] ALJ Brodzinski thus

considered the telephone calls to be pretrial conferences that were part ofthe

administrative proceedings. [D&O at 11; Tr. at 19]

On March 17,2009, ALJ Brodzinski issued his D&O in the matter which

included a discussion of preliminary matters including Respondent's allegations of a

labor dispute, his numerous motions, and the hearing. On April 16, 2009, Respondent

filed a motion for appeal. In light ofthe fact that Respondent is acting pro se, I will treat

Respondent's motion as both the Notice of Appeal required by 33 C.F.R. § 20.1001, and

the Appellate Briefrequired by 33 C.F.R. § 20.1003. The Coast Guard filed a timely

Reply Brief on May 19,2009. Therefore, this appeal is properly before me.

APPEARANCES: Respondent appeared pro se. The Coast Guard was

represented by Investigating Officers Lieutenant Arm McSpadden and Chief Warrant

Officer James R. Mints ofCoast Guard Sector San Diego, California.

6
CONTRERAS

BASES OF APPEAL

~O. 2693

This appeal is taken from Judge Brodzinski's D&O which found proved five

counts of misconduct and ordered the revocation ofRespondent's Merchant Mariner

Document. On appeal, Respondent raises the arguments summarized below:

I The ALl erred in failing to grant the Respondent's Motions to Dismiss

based on Respondent's allegations that the Investigating Officer acted

improperly.

II The ALl erred in failing to grant Respondent's Motion for Recusal of

Judge Brudzinski due to bias; and

III The transcript is not an accurate record ofthe proceedings.

Opinion

Standard ofReview

On appeal, a party may challenge whether each finding offact rests on substantial

evidence, whether each conclusion oflaw accords with applicable law, precedent, and

public policy, and whether the ALJ committed any abuses of discretion. See 46 C.F.R.

§ 5.701 and 33 C.F.R § 20.1001. "Under the governing standard ofreview on appeal,

great deference is given to the ALJ in evaluating and weighing the evidence." Appeal

Decision 2685 (MATT). "The ALJ is the arbiter offacts" and it is "his duty to evaluate

the testimony and evidence presented at the hearing." Appeal Decision 2610

(BENNETT). Under governing precedent, "the findings offact ofthe ALJ are upheld

unless they are shown to be arbitrary and capricious or there is a showing that they are

clearly erroneous." Appeal Decision 2610 (BENNETT) citing Appeal Decisions 2557

(FRANCIS), 2452 (MORGANDE) and 2332 (LORENZ). The "[t]indings ofthe ALJ

need not be consistent with all the evidentiary material in the record as long as sufficient

7
CONTRERAS NO.

2693

material exists in the record to justify the finding." Appeal Decision 2639 (HAUCK)

citing Appeal Decisions 2527 (GEORGE), 2522 (JENKINS), 2519 (JEPSON), 2506

(SYVERTSEN), 2424 (CAVANAUGH), 2282 (LITTLEFIELD), and 2614

(WALLENSTEIN).

1.

The AUerred in failing to grant the Respondent's Motions to Dismiss based on

Respondent's allegations that the original Investigating Officer acted improperly.

On July 7, 2007, Respondent filed a motion to dismiss the case based upon an

allegation of misconduct by the Investigating Officer, Lieutenant Vasquez. Respondent

stated in his motion that "this officer was recorded in his attempt to interfere and/or

coerce me and in doing so violated my Constitutional Right to due process being pre trial

conference hearings with the Administrative Law Judge being present." He further

accuses Lieutenant Vasquez of "unprofessional, unlawful behavior and dishonorable

tactics." [D&O at 32] He also claims that Lieutenant Vasquez "did attempt to prevent

the three of us from ever meeting together for any and all telephonic pre'trial [sic]

conferences." [Respondent's Motion to Dismiss, due to Prejudice based on the untenable

evidence against Investigating Officer: LTamar Vasquez at 1] In support of his motion,

Respondent referenced a tape recorded conversation he had with Lieutenant Vasquez that

was the subject ofCounts Seven and Eight ofthe Complaint. The transcript ofthe

conversation is contained in the record.

Prior to his recusal, on July 13,2007, ALJ McKenna denied Respondent's motion

to dismiss based on Lieutenant Vasquez's alleged misconduct describing the motion as

"frivolous" and warning that further frivolous motions would result in sanctions. [D&O

at 33; Order Denying Respondent's Motion to Dismiss Based on Improper Conduct by

8
CONTRERAS NO. 2693'

LT. Omar Vasquez at 1] On luly 23,2007, Respondent filed another motion to dismiss

based upon the alleged misconduct of Lieutenant Vasquez. [Respondent's Continued

Motion to Dismiss based upon the USCG and/or its LT Omar Vasquez having violated

Respondent's right to Due Process of Law] ALl McKenna denied this Motion by Order

dated July 24,2007. Respondent repeats this claim on appeal, asserting that the

Investigating Officer attempted to deny Respondent an opportunity for a pretrial

conference.

Coast Guard Suspension and Revocation "actions are administrative proceedings

that are remedial, not penal in nature, fix neither criminal nor civil liability, and are

'intended to help maintain standards for competence and conduct essential to the

promotion ofsafety at sea. ", Appeal Decision 2689 (SHINE) quoting 46 C.F.R. § 5.5.

The Coast Guard has enacted regulations to protect the due process rights of individuals

during the administration oftheir cases and those regulations are to "be construed so as to

obtain ajust, speedy, and economical detennination ofthe issues presented." Appeal

Decision 2689 (SHINE) quoting 46 C.F.R. § 5.51. "[T]hose rights nonnally afforded to

trials do not apply to administrative hearings." Appeal Decision 2689 (SHINE), citing

Appeal Decisions 2049 (OWEN) and 1405 (POWELL). Suspension and revocation

proceedings are governed by the regulations promulgated in 33 C.F.R. Part 20 and

46 C.F.R. Part 5. Any party may request a conference by motion. 33 C.F.R. § 20.501(a).

Motions must be in writing. 33 C.F.R. § 20.309(c).

After a review ofthe transcript ofthe telephone conversation between Lieutenant

Vasquez and Respondent, I agree with ALl McKenna's assessment that the motion to

dismiss was frivolous and warranted denial. Nothing in the transcript could remotely be

9
CONTRERAS ,

NO. 2693

considered to be unprofessional, unlawful or dishonorable. Nor does the transcript

contain evidence that Lieutenant Vasquez attempted to coerce Respondent into entering a

settlement agreement. Further, it does not, as Respondent claims, indicate an attempt to

prevent Respondent from having a pretrial hearing before ALJ McKenna.

Despite filing hundreds ofmotions in this case, Respondent does not point to a

single motion filed in accordance with 33 C.F.R. § 20.501(a) requesting a conference

with the ALJ, nor does Respondent point to a request for conference, that was denied by

the ALJ. Respondent was, in fact, able to participate in pretrial conferences on June 30,

2007, September 26,2007, and December 4,2007. Moreover, Respondent presents no

evidence of any motion he filed requesting a pretrial conference in accordance with

33 C.F.R. § 20.501(a) that Lieutenant Vasquez interfered with. Accordingly,

Respondent's first basis for appeal is not persuasive.

II.

The ALJ erred in failing to grant Respondent's Motion for Recusal.

Respondent alleges that ALJ Brudzinski committed reversible error by not

granting Respondent's motions for ALJ Brudzinski's recusal. [D&O 9] The record

shows that Respondent filed motions for recusal of ALJ Brodzinski on May 21, 2007, and

May 26,2007. [D&O at 39, Respondent's Motion for a transcribed pre-trial deposition to

discuss the recusal ofthe ALJ; Respondent's Motion for Recusal] ALJ Brodzinski

denied these requests via an Order issued on June 3,2008. [D&O at 39, Order Denying

Discovery Request and Motion for Recusal] Thereafter, on June 5, 2008, Respondent

filed another motion seeking recusal of ALJ Brodzinski. [D&O at 39, Respondent's

follow-up Motion for recusal] This motion was denied via an Order issued on June 25,

10
CONTRERAS NO. 2693

2008. [D&O at 39-40, Order Denying Motion for Recusal] The Order noted that the

regulations require that an affidavit, with facts supporting evidence of personal bias or

other valid reason, be filed along with any request for recusal. [D&O 39-40, Order

Denying Motion for Recusal at 3] Respondent filed further motions for recusal of ALJ

Brudzinski on July 7,2008, July 10,2008, July 15,2008, July 16,2008, and July 21,

2008. [D&O at 40-42, Respondent's Motions for Recusal] These were denied via an

Order dated August 11,2008, based on Respondent's failure to comply with 33 C.F.R.

§ 20.204(b) (he did not file the mandated affidavit). ALJ Brudzinski further determined

that Respondent's Motions for Recusal were dilatory, repetitive, or frivolous. [D&O at

43, Order Denying Motions for Recusal] Respondent repeated his request for recusal at

the hearing citing his prior motions. This motion, too, was denied at the hearing. [Tr. at

29-31]

33 C.F.R. § 20.204(b) states as follows:

Until the filing ofthe ALl's decision, either party may move that the ALJ

disqualify herself or himself for personal bias or other valid cause. The

party shall file with the ALJ, promptly upon discovery ofthe facts or other

reasons allegedly constituting cause, an affidavit setting forth in detail the

reasons.

The record shows that ALJ Brudzinski pointed out to Respondent that his motions did not

meet the procedural requirements set out in the regulations and, on that basis, informed

Respondent that he would consider the motions for recusal once Respondent complied

with the requirements of33 C.F.R. § 20.204(b). [Tr. at 31; Order Denying Motion for

Recusal dated June 25,2008, at 3] Respondent never filed the required affidavit. The

failure to comply with regulatory requirements for motions for recusal was addressed in

Appeal Decision 2657 (BARNETT). Barnett stated as follows:

11
CONTRERAS Nb. 26 9 ')

Past Commandant Decisions on Appeal have stated that the regulatory

requirements for disqualification are not "mere technicalities to be waived

by the Commandant." See Commandant Decisions on Appeal 2495

(ZELVIC) and 2232 (MILLER). Accordingly, I will not waive those

requirements here and because the affidavit supporting Respondent's 2nd

Motion for Disqualification was not timely filed, the ALJ did not err in

denying that motion. As a result, further consideration ofthe underlying

substantive issues is inappropriate here. (Footnote omitted)

In Barnett, the Respondent was represented by counsel and the failure to follow

33 C.F.R. § 20.204(b) precluded addressing the issue ofrecusal on appeal. In the present

case, Respondent is acting pro se. Nevertheless, ALJ Brudzinski informed Respondent

ofthe legal requirements for recusal on more than one occasion, and he was bound to

observe the regulatory requirement. Even had he met the regulatory requirement,

meriting my further consideration ofthis basis for appeal, Respondent has failed to

demonstrate any factual basis for relief.

Respondent alleges organizational bias and a due process violation because the

ALJ is an employee ofthe Coast Guard. Respondent argues that the ALJ should have

recused himself under the beliefthat there is a right to have a "non government

independent judge" to decide the case. Respondent cites to NTSB Order EM-195 as

applying the standard of 28 U.S.C. § 455 to Coast Guard Administrative Law Judges.

Under 28 U.S.c. § 455 (a) "[a]ny justice,judge or magistrate judge ofthe United States

shall disqualifY himself in any proceeding in which his impartiality might reasonably be

questioned." NTSB Order EM-195 is distinguishable in that it applied a standard based

on an internal Coast Guard Administrative Law Judge policy instruction, which stated

that administrative law judges are held to the same standard as members ofthe federal

judiciary, and that they "must strive to avoid even an appearance that he or she is in any

way partial to the position of either party to a proceeding." While the NTSB applied the

12
CONTRERAS NO'1 269 '"'

28 U.S.C. § 455 standards to that decision, it did not find that the administrative law

judge in that case created an appearance ofimpropriety simply because he was employed

by the Coast Guard as Respondent attempts to assert here, nor did it find an actual

impropriety occurred. Rather NTSB cited to a "possible impact ofthe law judge's son's

connection to this matter" as an attorney representing a manufacturer in a related

products liability suit. Although Respondent repeatedly asserts bias, he has provided no

evidence other than an organizational relationship between the ALl and the Coast Guard

as grounds for this assertion.

The fact that the ALl is a Coast Guard administrative law judge is not grounds for

recusal in this matter, nor does it constitute a violation of due process. "To state a due

process claim for such probable unfairness, a plaintiffmust sufficiently allege facts

supporting a conclusion that the 'risk of unfairness is intolerably high' under the

circumstances ofthe particular case." Harline v. Drug Enforcement Admin., 148 F.3d

1199,1204 (lOth Cir. 1998) citing Withrow v. Larkin 421 U.S. 35, 58 (1975). "The

Supreme Court has held that circumstances presenting a greater risk of bias than agency

employment ofALls do not violate due process. In Withrow, the Court held there was no

violation where adjudicators presided over hearings on charges they themselves

investigated." Id. at 1205. See also Bunnell v. Barnhart, 336 F3.d 1112, 1114-1115 (9th

Cir. 2003) and Greenberg v. Bd ofGovernors ofFed. Reserve Sys., 968 F.2d 164, 166-67

(2nd Cir. 1992). Therefore, I find the Respondent's organizational bias claim and due

process violation claim against the ALl to be without merit.

Respondent also alleges personal bias on the part of ALl Brudzinski. The rules

regarding bias on the part ofthe ALl are laid out in Appeal Decision 2658 (ELSIK):

13
CONTRERAS NO.

Parties to suspension and revocation proceedings may request that an ALl

withdraw from the proceedings on the grounds of personal bias or other

disqualification. 33 C.F.R. § 20.204(b). After making such a request, the

party seeking disqualification carries the burden of proof. Schweiker v.

McClure, 456 U.S. 188, 102 S.Ct. 1665 (l982). The courts have long

stated that there is a rebuttable presumption that the officers presiding over

hearings are unbiased and that bias is required to be of a personal nature

before it can be held to taint proceedings. Roberts v. Morton, 549 F.2d

158 (10th Cir. 1977).

Respondent has failed to meet his required burden of proof. Respondent alleges

four examples of bias within his appellate brief. They are: that ALl Brudzinski ruled

against the Respondent's motion for recusal; that an accurate transcript would show that

the ALl was biasedI; that the ALl indicated that he was not entitled to a transcript; and

that the ALl was biased because he told respondent "that the [R]espondent has no respect

for authority." The respondent provides no additional support for these allegations of

personal bias. I have carefully reviewed the record in this case and find no support for

Respondent's allegations.

With regard to Respondent's first assertion, in effect that the ALl was biased

because he failed to recuse himself from the proceedings, it has been held that

"consistent adverse rulings, even if done in a derogatory manner, are not sufficient to

justify withdrawal or disqualification." Appeal Decision 2689 (SHINE) quoting Appeal

Decision 2658 CELSIK). Absent some showing of personal bias, the mere fact that an

ALl failed to recuse himself, does not necessitate reversal. Appeal Decision 2689

(SHINE) citing Roberts v. Morton, 549 F.2d 158, 164 (lOth Cir. 1977). Respondent has

failed to offer any evidence of personal bias regarding the ALl's decision not to recuse

1 Respondent's allegation with regard to the content ofthe transcript is fully discussed in part III ofthis

decision, therefore, it will not be addressed within this portion ofthe decision.

14
CONTRERAS

himself other than simply ruling against the Respondent's request. Therefore, I reject the

Respondent's argument on this allegation for failure to meet his burden of proof.

Respondent's further contention, that the ALl was biased because he informed

Respondent that he was not entitled to a transcript ofthe proceedings, is similarly

unpersuasive. A careful review ofthe transcript shows that Respondent misconstrued the

ALl's statement with regard to the transcript. The ALl did not say that Respondent

would not receive a copy ofthe transcript, rather, the ALl simply stated that he did not

know whether or not Respondent would get a copy ofthe transcript because that issue

"remains to be seen because there is no provision for that." [Tr. at 175-176] The ALl

does not control whether the Respondent receives a copy ofthe transcript. The ALl

merely restated the existing guidance of33 C.F.R § 20.903(b) which allows a person to

obtain a copy of any part ofthe record "after payment ofreasonable costs for duplicating

it in accordance with 49 CFR part 7." Respondent's allegation of bias here is without

merit.

Finally, Respondent contends that the ALl was biased because he stated that

Respondent had "no respect for authority." In so asserting, Respondent misquotes the

ALl:

You've invoked your Fifth Amendment right, but I don't know

that you can stick to it because you do like to talk. And I see that there's a

problem listening. And what I've seen here in this short hearing, that

seems to be what this problem has been. There's too much talking.

There's very little, if any, listening. You're free to go ahead and sue

everybody you want to. And so far you are doing just that.

And I don't know what your problem is. Maybe you have a

problem with authority. I don't know. I'm just here to determine whether

or not the charges that the Coast Guard has brought whether or not they

are proved. And the evidence either proves them or they don't. And if

you15
CONTRERAS NO: 2693

You're alleging these union grievances. You're alleging

discrimination. You're alleging all these things. All these things are -

they don't show that - at least so far, they don't disprove that you refused

to follow orders ofthe mate on watch. They don't disprove the entries

that are in the logbook.

[Tf. at 55] Respondent has failed to demonstrate that the ALl's mind was irrevocably

closed. Accordingly, even had he observed the regulatory requirement that apply to a

motion for recusal, he has offered no factual basis that would have met his burden of

proof with regard to the bias allegation.

III.

The transcript is not an accurate record ofthe proceedings.

Respondent alleges that the transcript ofthe hearing is incomplete and omits

verbal harassment and attacks by ALl Brudzinski directed towards Respondent. The

Administrative Procedure Act requires appellate agency review to consider the record as

a whole, which includes the transcript oftestimony, hearing exhibits and motions filed in

the proceeding. 5 U.S.C. § 556(e). The regulations controlling suspension and

revocation proceedings similarly state that" ... the transcript ofthe hearing, together with

all papers and exhibits filed, shall constitute the record for consideration and review." 46

C.F.R. 5.803; See also 33 C.F.R. 20.l002(a).

When a transcript is accompanied by a certification of a qualified court reporter,

"[a] presumption ofregularity accompanies the official functions ofsuch persons."

Appeal Decision 2309 (CONEN) citing Appeal Decision 1793 (FARIA).

Prior Commandant Decisions on Appeal have found that the lack of a transcript

precludes review, requiring dismissal ifthe transcript cannot be produced. See Appeal

Decisions 1916 (McGOWAN) (complete lack of hearing transcript precludes appellate

16
CONTRERAS NO. 26 9 '~

review), 2157 (KING) (no decipherable record available) and 2394 (ANTUNEZ) (no

transcript of hearing available because recording lost). Even when a transcript exists, if it

contains substantial errors, the record may not be sufficient for meaningful appellate

review. See Appeal Decisions 2168 (COOPER) (extensive material changes to text

renders transcript suspect) and 2276 (LUDLUM) (substantial omissions from a hearing

record relating to significant matters effectively preclude meaningful review).

The cases that found transcript errors warranted dismissal were cases where there

was, essentially, a complete lack of a transcript to review. Minor defects are not

prejudicial. See generally Appeal Decisions 1933 (HERRING) (clerical defects not

prejudicial) and 2490 (PALMER) (majority oftestimony on a particular minor issue was

accurately recorded).

Like the Respondent in Conen, Respondent has not indicated any basis for his

contention that statements by ALl Brudzinski were omitted or that the verbatim transcript

was altered. Here, a facially complete transcript ofthe hearing is accompanied by a

certificate from a Certified Shorthand Reporter for the State ofCalifornia who certified

that the transcript was a "true record ofthe proceedings." [Tr. at 179] A careful and

thorough review ofthe transcript reveals no apparent omissions or gaps other than routine

recesses. Respondent has provided no evidence to overcome the presumption of

regularity and therefore Respondent's final basis of appeal is not persuasive.

CONCLUSION

The actions ofALl Brudzinski had a legally sufficient basis and, for the reasons

stated above, I find that his decision was not arbitrary, capricious, or clearly erroneous.

17
CONTRERAS NQ.

Respondent has submitted no creditable evidence that the Investigating Officer

committed misconduct, that ALJ Brodzinski was biased in this case or that there were

any defects in the transcript. Therefore, I find Respondent's appeal to be without merit.

ORDER

Accordingly, the Order ofthe Administrative Law Judge at San Diego, California,

on March 17,2009, is hereby AFFIRMED.

~-ro~ I VJ\bH, \leGSigned at Washington D.C. this of ,2011.

SAlLY IRICE-G'HARA

V1ct AdIt1ra1, U. S. Coast ......

18