Thursday, June 28, 2007

Coast Guard Response to ALJ Jeffie Massey's Claims.

Rear Admiral Mary Landry, the Director of Governmental and Public Affairs, issued a statement "concerning media coverage of Coast Guard Administrative Law Judges."
WASHINGTON – The article “Justice Capsized,” in Sunday’s Baltimore Sun, and Tuesday’s editorial “A listing court” in the same newspaper, emphasize statistics that may leave readers with an erroneous impression that I would like to correct. Pending litigation prevents me from addressing other allegations in the article and editorial.

In an industry with over 200,000 mariners, few violations are serious enough to reach administrative law judges. The Coast Guard only initiates action when failing to do so might endanger the public or the environment.

More than half of over 6,300 charges against mariners since 1999 resulted from a positive drug test, or drug- or alcohol-related convictions. Most remaining charges involve refusal to submit to mandatory drug tests; false or incomplete statements in applications for credentials, mostly involving failure to reveal criminal convictions; and misconduct, mostly involving drug or alcohol use, including operating a vessel while intoxicated.

All of these cases directly affect safety or security. While all mariners are entitled to due process, federal law appropriately allows little discretion for activities in any mode of transportation that may endanger public safety. Nevertheless, the process is remedial, not criminal. The vast majority of mariners charged with drug and alcohol offenses take advantage of rehabilitation programs we have established. As a result, few cases are contested and fully adjudicated by administrative law judges.

More than 2400 of the 6,300 charges were administratively withdrawn, fully admitted, or have not yet been assigned to an administrative law judge. Approximately 2800 charges settled voluntarily prior to assignment to an administrative law judge. The Sun’s reporting incorrectly classified these 5,200 charges, all of which involved little or no administrative law judge involvement, as Coast Guard victories.

Coast Guard administrative law judges are bound to fairly and impartially adjudicate cases. They are no different from counterparts at other agencies. At the heart of the cases they preside over is the safety and welfare of passengers, commerce, and the environment. This public trust must be shared by judges, investigators, and professional mariners.

Chief Administrative Law Judge for the Coast Guard is The Honorable Joseph N. Ingolia.

Chief Administrative Law Judge for the Coast Guard is The Honorable Joseph N. Ingolia; he has been the Chief Administrative Law Judge since 1991. He is a member of the Senior Executive Service. Prior to this appointment with the Coast Guard, he served as an Administrative law Judge for the Federal Maritime Commission for a dozen years.
As Chief Administrative Law Judge for the Coast Guard, which is now a component of the Department of Homeland Security, Judge Ingolia supervises six field judges located throughout the United States and is responsible for oversight of the conduct of formal hearing proceedings conducted by all Administrative Law Judges assigned to the Coast Guard. Their cases relate to the suspension and revocation of licenses, certificates of registry and merchant mariner’s documents and to Class II civil penalties assessed under the Federal Water Pollution Control Act and the Comprehensive Environmental Response, Compensation and Liability Act. He also is responsible for the oversight of NOAA cases which by law are tried by Coast Guard ALJs, as well as for certain Transportation Security Administration (TSA) and Department of Commerce (BIS) cases.
He graduated from high school in 1942; by my rough calculations, that would mean Judge Ingolia is in his early 8o's. He must be doing it for the love of the job and service.

And that would explain why he might have said that an administrative judge is "not a judge but rather a tool for the Coast Guard to achieve rulings it wants" (emphasis added) and that administrative judges "should always rule for the Coast Guard."



Blogger ichbinalj said...

Federal Administrative Law Judges, often referred to as the Federal Administrative Trial Judiciary, perform judicial functions within the Executive Branch of the Government. In adjudicating cases before them, Administrative Law Judges conduct formal trial-type hearings, make findings of fact and law, apply agency regulations, and issue either initial or recommended decisions. Administrative Law Judges have complete decisional independence, and to protect that independence, have "tenure very similar to that provided for Federal judges under the constitution." The U.S. Supreme Court stated that the role of an administrative law judge is "functionally comparable" to that of federal trial judges.

Administrative Law Judge powers and decisional independence come directly from the Administrative Procedure Act "without the necessity of express agency delegation," and "an agency is without the power to withhold such powers" from its Administrative Law Judges.

1:01 PM  
Blogger ichbinalj said...

Peter Stinson said:
Judge Joseph Ingolia, the Chief Administrative Law Judge for the Coast Guard, is a member of the Federal Administrative Law Judges Conference.

Here's what I suspect, and I no nothing about all this other than what I have posted here: Judge Ingolia loves his job and he loves the Coast Guard. He thinks highly of the Coast Guard and he believes in the mission of the Coast Guard. And, he wants to help the Coast Guard with the execution of the Service's mission. And, if indeed he did say and write the things he is alleged to have said and is alleged to have written, he did it because of his belief in the Coast Guard, the people of the Coast Guard, and the mission of the Coast Guard. I doubt he was able to see that there is supposed to be a wall between him and the organization. He and the other administrative judges are "of" the Coast Guard but not a "part of" the Coast Guard. I would suspect that Judge Ingolia thought that he was an integral part and supporter of the Coast Guard.

Perhaps the federal government ought to follow the example set by the State of New Jersey. In New Jersey, all the administrative law judges have been "consolidated together into a single agency that holds hearings on behalf of all other state agencies."

I'll bet in New Jersey the administrative law judges don't see themselves as a part of any particular agency and are able "to act as an independent arbiter of certain disputes arising from agency actions, as well as an independent arbiter of agency compliance with rulemaking procedures."

Perhaps Representative Elijah E. Cummings ought to not just "convene a hearing to explore allegations that the agency's administrative law system is biased and that its judges are pressured to rule in the Coast Guard's favor" but to consider re-racking the law to make administrative law judges truly independent.

Or will those on The Hill just try and keelhaul the Coast Guard and Judge Ingolia.

1:03 PM  
Blogger ichbinalj said...

Federal ALJs are appointed under the Administrative Procedure Act of 1946 (APA). Their appointments are merit-based on scores achieved in a comprehensive testing procedure, including an 8-hour written examination and an oral examination before a panel that includes an OPM representative, American Bar Assn. representative, and a sitting federal ALJ, . Federal ALJs are the only merit-based judicial corps in the United States.

The APA is designed to guarantee the decisional independence of ALJs. They have absolute immunity from liability for their judicial acts and are triers of fact "insulated from political influence." Federal administrative law judges are not responsible to, or subject to the supervision or direction of employees or agents of the federal agency engaged in the performance of investigative or prosecution functions for the agency. Ex parte communications are prohibited. ALJs are exempt from performating ratings, evaluation, and bonuses. Agency officials may not interfere with their decision making.

1:03 PM  
Blogger ichbinalj said...

Peter Stinson said:
I'm waiting for London Steverson, a retired Coastie who is a federal administrative law judge and blogger, to weigh in.

Now, let me say up front that I know next-to-nothing about the Coast Guard's administrative law program. However, I'm willing to bet big money on Mr. Little and his reporting. It sounds like the Coast Guard.

Now, I don't mean that it sounds like the Coast Guard because the Coast Guard condones screwing the mariner or breaking the law... because the Coast Guard doesn't. However, there is a culture in the Coast Guard that condones opaqueness and secrecy and CYA. Too often the Coast Guard hides the way decisions are made. This all runs contrary to the transparency that Admiral Allen is working to establish. Admiral Allen is a firm believer in transparency and being above board.

I imagine that by Wednesday, we'll see some indicator from the second deck that things in the administrative law judge program are going to be different.

1:11 PM  
Blogger ichbinalj said...

Baltimore Sun 1 Aug 2007.
Washington — Members of Congress called Tuesday for the U.S. Coast Guard's administrative court system to be removed from the agency's control and placed within an independent arm of government.
They say recent claims of bias and mismanagement have raised doubts within the maritime industry about whether the system is fair to the civilian defendants whose cases it handles.
U.S. Rep. Elijah Cummings, D-Md., and chairman of the House's Coast Guard subcommittee, said he will submit legislation to strip the administrative law system from the Coast Guard, with hopes of having the change implemented by next year. He made the proposal after hearing testimony from two former judges, a maritime attorney and a law professor who said they found evidence of bias or improper management within the current system.
At a hearing called to explore claims of bias, former Coast Guard Judge Jeffie J. Massey described a meeting in the office of Chief Judge Joseph N. Ingolia during which, she said, he told her to always rule for the Coast Guard and disregard any regulations that the Coast Guard opposed.
Another former judge, Rosemary Denson, told committee members that Coast Guard judges are perceived in the maritime industry as pawns for the agency's uniformed leadership, and that she felt the same way about some judges with whom she worked. And Abraham A. Dash, an administrative law professor at the University of Maryland, said he was “troubled” by one memo Ingolia circulated to other judges that appeared to tell judges how to rule. He said the memo, and the alleged meeting Massey described between Coast Guard investigators and the chief judge's staff, were possible violations of the regulations that guarantee impartial hearings.
Coast Guard officers, meanwhile, defended the system as fair.
The Coast Guard's administrative law system each year handles hundreds of charges of misconduct and negligence brought against civilian mariners, often for alleged drug use, and can result in revocation of the credentials a mariner needs to work at sea. No civilian mariners testified at Tuesday's hearing, but Cummings said many contacted by the committee were afraid to testify because they feared retaliation by the Coast Guard.
“There has been no issue that we've dealt with in the last seven months that has gotten more response than this, and that tells you the appearance of bias is out there,” Cummings said. “Being treated fairly by a judge is a fundamental right of every American and we need to send a strong message to the mariner community that when they come before the Coast Guard that's how they're going to be treated.”
Rep. Steven C. LaTourette of Ohio, the committee's senior Republican, said he also would support removing the judges from the Coast Guard, though he was not convinced that the agency suffers from systemic bias or unfairness.


11:12 AM  
Blogger ichbinalj said...

In a move that caught the U.S. Coast Guard by surprise, the DAY reported on 30 April 2008 that the House of Representatives passed a bill that would require congressional nomination for admission to the Coast Guard Academy.

Unlike the nation's other military service academies, which admit students by nomination, the Coast Guard Academy has traditionally admitted students on the basis of academic merit, using the SAT (Scholastic Aptitude Test) like civilian colleges and universities.

A provision in the 2008 Coast Guard Authorization Act, a bill that authorizes appropriations for the service for fiscal year 2008 as well as policy changes, requires applicants to the academy to obtain a nomination from an official source, such as a member of Congress or an authority from a U.S. territory.

U.S. Rep. Elijah E. Cummings, D-Md., chairman of the House Subcommittee on Coast Guard and Maritime Transportation, proposed bringing the application process in line with the other academies as a way to diversify the cadet corps.

The academy would have to allocate the current number of cadet positions to each state, proportional to the representation in Congress from that state, and a set number of positions to residents of the District of Columbia and U.S. territories.
Academy officials can then offer appointments to students who meet these criteria and the admission requirements. Some students may be appointed to the academy without competing in this way, including children of Congressional Medal of Honor recipients and children of service members who died while on active duty

11:09 PM  
Blogger ichbinalj said...

The Coast Guard’s maritime safety inspection program is staffed by unqualified personnel who don’t follow proper procedures and mismanage their backlog of thousands of unfinished investigations, according to an internal report by the inspector general of the Department Homeland Security.

The findings, which could have broad implications for the future of U.S. maritime oversight, were unveiled Tuesday 20 May before a House panel.

Among a sample of 22 safety investigators, 15 were not fully qualified under U.S. regulations and four were not qualified at all, the investigation found, although a senior Coast Guardsman defended the service’s 136 maritime investigators as a group.
(20 May 2008)

2:46 AM  

Post a Comment

<< Home