September 15, 2010
DHS Inspector General reports clear USCG Judges of misconduct
Two reports by the Department of Homeland Security Inspector General clear Coast Guard Administrative Law Judges of misconduct or bias, but make 11 recommendations for improving the service's handling of mariner license suspension and revocation matters.
The reports, OIG-10-107 and OIG-10-108, stem from an October 2008 request by the Coast Guard's Vice Commandant for a review of allegations made May 9, 2007, by former Administrative Law Judge Jeffie Massey.
Report OIG-10-107 details recommendations made to address programmatic issues that while not directly related to Massey's allegations, were noted during the review of those allegations.
Report OIG-10-108, focused on the review of Massey's allegations, says that DHS OIG inspectors found there "is no evidence supporting ALJ Massey's claim that the Chief ALJ held improper conversations with other ALJs about desired outcomes in specific cases or otherwise deprived mariners of due process in administrative proceedings."
The report also states that the Office of Inspector General:
Found that Massey repeatedly failed to follow Coast Guard regulations;
Found that Massey had in one instance, openly refused to follow Coast Guard precedent;
Was not able to substantiate Massey's allegations;
Did not determine that the Chief ALJ (Judge Joseph Ingolia) and others made remarks alleged by Massey;
Did not identify any evidence that the Chief ALJ told subordinates how to rule or attempted to control case outcomes;
Did not uncover evidence that the Chief ALJ expects ALJs to rule in favor of the Coast Guard or directed them to do so.
Found no evidence supporting Massey's allegation that the Chief ALJ directed a subordinate ALJ how to rule.
"The Coast Guard Administrative Law Judge Program welcomed this independent and thorough investigation which exonerates the ALJ program of alleged misconduct," said Rear Adm. Karl Schultz, director of governmental and public affairs for the U.S. Coast Guard. "These current findings are consistent with an earlier GAO audit which found the ALJ program to be unbiased and that Coast Guard ALJs fairly adjudicate the interests of those who come before them."
Report OIG-10-107 provides the service with 11 recommendations on how to improve the Coast Guard's handling of merchant mariner suspension and revocation matters.
The Coast Guard concurs with each of the following recommendations:
1. Evaluate current procedures for training ALJs and create a formal training program.
2. Develop formal written procedures for investigating allegations of misconduct against an ALJ.
3. Create formal guidelines for the Chief ALJ to follow when deciding how or whether to discipline an ALJ.
4. Revoke any obsolete policy guidance and consolidate current policy guidance into a manual.
5. Develop a standard format for the issuance of policy guidance that establishes to what extent an ALJ is required to follow the guidance.
6. Administer a formal orientation and training course that investigating officers complete before handling suspension and revocation cases.
7. Make available or require, if necessary, ongoing or advanced skills training for investigating officers who seek or need to improve their prosecutorial skills.
8. Promote the use of the Center of Expertise to ensure that investigating officers have access to training and legal support.
9. Take steps to decrease the length of time required to issue Commandant's Decision on Appeals.
10. Create a database of Commandant's Decision on Appeals and ALJ decisions in which the public can use a topic or key word to locate relevant Coast Guard precedents.
11. Develop formal procedures governing interactions between personnel in the ALJ program, the Judge Advocate General's Office and the Office of Investigations and Analysis.
"The swift implementation of the DHS IG recommendations, which is already underway, is beneficial to all participants of the adjudication system," said Schultz. "This investigation is in fact the second independent review of the Coast Guard ALJ Program within a 12-month period. These reports provide the facts that help our merchant mariners and the American public to confidently place their trust in the fairness and integrity of the Coast Guard's suspension and revocation program, our Administrative Law Judges and the staff who administer a program that is vital to maritime safety."
Massey's allegations were reported in a series of Baltimore Sun articles and repeated during Congressional testimony. The allegations were also relied upon in three, civil lawsuits seeking to reverse Coast Guard actions and up to $31 million in alleged damages from ALJs and others. The lawsuits were dismissed, and the dismissals were affirmed on appeal. Two plaintiffs re-filed their suits which were again dismissed. Those dismissals are on appeal before the 5th Circuit, U.S. Court of Appeals.