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Commercial Fisheries News
Volume 35 Number 1
September 2007
Congress examines charges of CG judge bias
WASHINGTON, DC – A June 24 article published in the Baltimore Sun titled “Justice Capsized?” has raised serious questions about the impartiality of Coast Guard administrative law judges (ALJs) who hear fisheries enforcement cases, as well as negligence and misconduct charges against professional mariners.
In the lengthy article, author Robert Little reported that a computer analysis of court records conducted by the newspaper revealed that out of 6,300 charges filed by Coast Guard investigators since 1999, mariners had prevailed in just 14 cases.
“Including dismissals, the Coast Guard wins or reaches a settlement in 97% of its cases. The Social Security Administration, by comparison, prevails in 43% of the cases heard by its administrative law judges,” Little wrote.
The article also contained statements by recently retired Coast Guard ALJ Jeffie Massey, who said she had been told by the chief judge to always rule in favor of the Coast Guard.
Hearing
The revelations drew immediate attention from Congress and, on July 31, US Rep. Elijah Cummings (D-MD), chairman of the House Subcommittee on Coast Guard and Maritime Transportation, convened a hearing to examine the Coast Guard administrative law system.
During the hearing, Massey explained that over the course of her career, which began in 1977, she had been a criminal defense lawyer, an attorney for the Special Counsel’s Office of the US Department of Energy, an assistant criminal district attorney, and a public defender. She first became an ALJ in 1997 with the Social Security Administration and, in order to be closer to her family in Texas, took an ALJ position with the Coast Guard in 2004.
During her less than three years in that job, she said, “By phone, by e-mail, by memorandum, attempts were made to coerce me into making rulings favorable to the US Coast Guard, especially on issues of discovery.”
A second former Coast Guard ALJ, Rosemary Denson of Coupeville, WA, testified that during her 1982-1996 tenure, she witnessed many examples of what she felt was improper behavior by the chief ALJ.
Denson characterized the culture of the chief’s office as “insidious and vindictive,” resulting in the “continuous violation of the Administrative Procedure Act.” She further offered a number of suggestions for the “gutting and reconstruction” of the Coast Guard ALJ system to put it “back on an even keel.”
A third ALJ, Peter Fitzpatrick, testified that he had not seen evidence of misconduct by the chief ALJ.
Independence
Following the hearing, subcommittee Chairman Cummings issued a statement that indicated he was seriously troubled by what he heard from the two former ALJs who, he said, suggested that they worked “in an atmosphere that did not support their exercise of judicial independence in the consideration of cases.”
Said Cummings, “Such testimony is obviously deeply disturbing and, if true, would suggest that the scales of the Coast Guard’s administrative law system are not evenly balanced.”
He added that, in addition to conforming to legal standards, an administrative law system must ensure against even the appearance of unfairness.
“I believe the best way to ensure that the administrative law system that considers whether to suspend or revoke a mariner’s credential is truly balanced is to separate that system from the Coast Guard,” Cummings said.
He concluded by saying he would work with subcommittee ranking member US Rep. Steven LaTourette (R-OH) “to examine the best way that the separation of this system from the Coast Guard can be achieved.”
According to a background document assembled by the subcommittee staff, in addition to hearing cases brought by the Coast Guard under Coast Guard administrative law, Coast Guard ALJs also hear cases brought by the National Oceanic and Atmospheric Administration and two other federal transportation and security agencies.
A spokesman for Cummings’ office said in mid-August that the congressman’s staff had received only a single call from the fishing community on the subject of ALJ fairness and found that to be somewhat surprising.
The North Carolina Fisheries Association is trying to build a record documenting problems encountered by fishing industry members and is encouraging fishermen who feel they have been treated unfairly through the Coast Guard ALJ system to contact the association office. NCFA President Sean McKeon can be reached by phone at (252) 633-2288 or by e-mail at <srm@ncfish.org>.
The Gulf Coast Mariners Association has posted the Baltimore Sun article and additional information about the Coast Guard ALJ system on its web site at <www.gulfcoastmariners.org>.
Lorelei Stevens
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