Coast Guard denies allegations of bias in judicial process

The Baltimore Sun

In the U.S. Coast Guard's first substantive response to claims of wide-ranging judicial impropriety in its court system, the agency has filed a 53-page document in federal court denying that its administrative judges are pressured to rule in favor of the agency.

The document disputes detailed allegations by retired Administrative Law Judge Jeffie J. Massey, who said in a sworn statement in March that Chief Judge Joseph N. Ingolia issued private instructions to judges and told her that she was a tool for the Coast Guard, not an impartial arbiter.

Responding to three recent lawsuits brought by merchant mariners who, based on Massey's statements, accuse the Coast Guard's legal system of being rigged, lawyers representing the agency said the allegations are "wholly without merit." They called the lawsuits a "flagrant attempt to abuse and intimidate" Ingolia and asked for their dismissal.

The Baltimore-based administrative court system handles hundreds of charges a year brought by Coast Guard investigators against tugboat pilots, charter boat captains and other civilian merchant mariners, typically alleging drug use or negligence or misconduct at sea. The courts can suspend or revoke the credentials mariners need to work, often ending their careers.

An article published in The Sun on June 24 cast doubt on the fairness of the courts, citing Massey's statement as well as evidence in federal court records, computer files and internal memos.

A congressional hearing is scheduled for July 31 to explore the alleged improprieties. Massey said she will testify, and at least one other former judge has been asked to attend. A Coast Guard spokeswoman said neither Ingolia nor other judges or staff members will testify because they are named in lawsuits related to their conduct in office.

A spokeswoman for Rep. Elijah E. Cummings, chairman of the Coast Guard subcommittee of the House Transportation Committee, said the panel has not completed its witness list or decided whether to subpoena witnesses.

Besides his alleged statements to Massey, Ingolia is also accused in court records of dictating judicial rulings through private memos, a practice that administrative law experts call inappropriate and possibly illegal rulemaking. And members of his staff, along with an attorney who writes appeals on behalf of the Coast Guard commandant, met with prosecutors and allegedly discussed details of pending cases, a possible violation of federal laws guaranteeing defendants impartial treatment.

The filing in U.S. District Court in New Orleans acknowledges the memos and confirms that the meeting between attorneys and investigators took place. In each case, it argues, these were "normal judicial functions."

The document is not the Coast Guard's formal reply to charges that its court system is unfair, but rather a preliminary motion to dismiss the claims before they go further. It does not directly address Massey's claim that Ingolia told her to favor the Coast Guard, other than to broadly deny it, but says the point is irrelevant because judges have wide latitude in what they can say and do.

"Even if it were true - which is expressly denied - Chief Judge Ingolia is absolutely immune because such informal statements were allegedly said in his capacity as Chief Judge," wrote Glenn K. Schreiber, the assistant U.S. attorney in New Orleans who is representing Ingolia and other Coast Guard officials being sued. "Judicial immunity applies no matter how erroneous the act may have been, and however injurious [its] consequences may have proved to the plaintiffs."

Massey, who served from 2004 to 2006 as a Coast Guard administrative law judge in New Orleans, gave a sworn statement about the system days after her retirement in March,. Three mariners who appeared before her in court quickly filed lawsuits based on her claims. Jim Letten, the U.S. attorney for the Eastern District of Louisiana, said yesterday that he would not comment beyond the court records.

Until the latest filing, the Coast Guard had not responded to the allegations detailed by The Sun, except to dispute statistics suggesting that mariners have a slim chance of winning whenever the agency brings a case against them.

Out of more than 6,300 charges brought by the Coast Guard since 1999, mariners prevailed in 14, according to a computer analysis of court records by The Sun. Coast Guard officials note that most of the cases involved mariners who failed a drug test and that all but 955 of the charges were settled without a formal hearing. Only 218 charges were "fully contested" and not settled before a judge issued a final ruling on the merits of the case.

When settled and dismissed cases are included, a mariner's chance of winning when a charge is brought against him is roughly 2.8 percent. In federal criminal court, where most cases also are settled without a hearing, defendants charged with a crime have about a 10 percent chance of being acquitted or having their case dismissed.

Coast Guard officials said they don't consider settled cases to be a "win." Unlike a criminal trial judge, the harshest penalty that a Coast Guard administrative law judge can hand down is revocation of the credentials a mariner needs to work.

"These are administrative proceedings, most of them involving illegal drugs, and a settlement is usually in the best interests of everyone," said Capt. Charles D. Michel, chief of the Coast Guard's Office of Maritime and International Law. "It's not fair to compare it to criminal court."

Cummings, a lawyer who called for a congressional hearing after The Sun's report, said he was less concerned about statistics than claims of impropriety.

"If you're doing better than the Feds, that says something. The Feds will spend a million dollars to convict you if they have to," Cummings said. "But it's the questions about fairness that concern me the most. If what's being said is accurate, we need to look into it."

robert.little@baltsun.com

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