Maritime judiciary under fire

By Robert Little Sun reporter

August 1, 2007

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WASHINGTON - Members of Congress called yesterday 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, saying 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.

Rep. Elijah E. Cummings, a Baltimore Democrat and chairman of the House Transportation subcommittee responsible for oversight of the Coast Guard, 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 detailed in June in The Sun, retired Coast Guard Judge Jeffie J. Massey described a meeting in the office of Chief Administrative Law 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 of the agency's uniformed leadership, and that she, too, perceives some of them that way. And Abraham A. Dash, an administrative law professor at the University of Maryland, said he was "troubled" by a memo Ingolia circulated to judges that appeared to tell them how to rule. He said the memo, and the 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, that can result in revocation of the credentials a mariner needs to work at sea. No civilian mariners testified at yesterday's hearing, but Cummings said many contacted by the subcommittee 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 Coast Guard 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.

"I'm not leaving this proceeding with the belief that somehow the process is fixed against mariners, but I do think it has demonstrated that you have that appearance," LaTourette said. "And so I think that moving the ALJs out of the Coast Guard has some attractiveness."

Both Cummings and LaTourette, said they were frustrated that the four-hour hearing did little to illuminate Massey's most explosive charge, first made in March, that Ingolia ordered her to rule in the Coast Guard's favor no matter the evidence. Massey repeated the allegation yesterday, but the Coast Guard did not offer any witnesses to rebut or address it, other than to "categorically deny" related claims raised in three recent lawsuits.

Ingolia and other officials within the administrative law system are being sued by mariners who, based on comments Massey gave in a sworn affidavit soon after she retired in March, say they were denied a fair hearing before the Coast Guard. Citing those lawsuits, the agency has denied repeated requests by The Sun to interview Ingolia or obtain answers to written questions about the claim. It declined to make him or his assistants available for yesterday's hearing.

"We asked the Coast Guard to send us some folks that could address those issues, we would have loved to have had them, but they did not do that," said Cummings. He said he will continue to press the Coast Guard to have Ingolia and other administrative law officials appear before his committee.

LaTourette also encouraged the Coast Guard to address the allegations, if for no other reason than to clear Ingolia's name, which was invoked repeatedly during the hearing.

"I think it's a crime to say 'no matter what the facts, no matter what you think, you have to rule for the Coast Guard,'" LaTourette said. "If he actually said that, the guy shouldn't be in his current job. He might [or] should be in jail. But if he didn't say that, I think he should have the opportunity to come here and set the record straight."

Former Coast Guard Judge Peter A. Fitzpatrick, who retired from the agency in January after 27 years, came to Ingolia's defense, calling him "a man of the utmost and highest integrity and someone who I respect as much as anyone I know."

"No one - no chief judge, the present chief judge or the former chief judge - ever directed, pressured or ordered me to decide any case for either side," Fitzpatrick said.

Rear Adm. Brian M. Salerno, the Coast Guard's assistant commandant for policy and planning and one of two uniformed officers who testified yesterday, said he would oppose any effort to remove the administrative law judges from the agency.

"Our view is that there is a great deal of value in maintaining the administrative law judge program within the Coast Guard. This allows the judges to become very acquainted with all the maritime regulations to which mariners are held, they understand the mission focus of the Coast Guard and how their role serves the marine safety purposes of the program," he said.

"We also recognize the imperative that this process be independent, and we believe that we actually have the procedures in place to assure that independence."

But Cummings issued a statement soon after the hearing saying he believes that removing the judicial system from the agency's control is the best way to ensure its independence.

"I believe that 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," he said in the statement. "I look forward to working with [LaTourette] to examine the best way that the separation of this system from the Coast Guard can be achieved."