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GAO looks into Coast Guard

The Baltimore Sun

The Government Accountability Office is investigating the U.S. Coast Guard's administrative law system, as members of Congress move forward with plans to dismantle the system and hand its responsibilities to the National Transportation Safety Board.

The GAO, Congress' investigative agency, confirmed it is exploring the system amid evidence that Coast Guard administrative law judges have been pressured by the agency's chief judge to rule in the Coast Guard's favor.

In addition, two sources said investigators from the Department of Homeland Security's Office of Inspector General have requested a host of Coast Guard records as part of a wide-ranging review of how the agency investigates and prosecutes cases. Neither agency would discuss the scope or the timeline of its review.

The actions stem from a June report in The Sun detailing former Coast Guard Administrative Law Judge Jeffie J. Massey's claims that she was told to rule in the Coast Guard's favor. By researching thousands of court records since 1999, The Sun found that the Coast Guard prevails in its cases against mariners more than 97 percent of the time.

In a setback to three mariners who had challenged the system and sued the Coast Guard this year, a federal judge in New Orleans dismissed the lawsuits Thursday, despite having called the evidence "disturbing, to say the least." U.S. District Judge Helen G. Berrigan ruled that the mariners must exhaust their appeals within the Coast Guard system before suing in federal court over allegations that they were treated unfairly.

In an earlier ruling, Berrigan said evidence presented to the court - including Massey's sworn statements and memos from Coast Guard Chief Judge Joseph N. Ingolia purporting to tell other judges how to rule - "raised a big pile of smelly stuff that doesn't, you know, it doesn't pass the smell test."

"I know that I wouldn't dream of doing things that Judge Ingolia seemed to feel was appropriate to do," Berrigan said last month from the bench.

"Maybe the world is different over where you are," she said to the Coast Guard's attorneys, "but to me ... I think that wouldn't have even been on my radar screen to try to do that."

Coast Guard officials declined to comment yesterday, saying they expect Thursday's rulings in New Orleans to be appealed and cannot discuss matters in litigation. But spokeswoman Angela H. Hirsch said that the agency believes its administrative law system treats mariners fairly, and that a thorough review will bear that out.

The Coast Guard's administrative law system is designed to hear cases, brought by Coast Guard investigators, against civilian tugboat captains, pilots, deckhands and other mariners accused of negligence, misconduct or other infractions on the water.

More than half of the 6,300 charges reviewed by The Sun involved alleged drug use, and the majority of cases were settled before a judge issued a final ruling. Agency records show that mariners charged by the Coast Guard have about a 40-to-1 chance of either winning or having the case dismissed, compared with a 9-to-1 victory rate for criminal defendants in federal court.

Rep. Elijah E. Cummings, a Baltimore Democrat who chairs the House subcommittee responsible for oversight of the Coast Guard, said he is finalizing legislation to dismantle the Coast Guard's administrative law system and funnel mariner cases instead to the NTSB, which handles similar cases related to licensed aircraft pilots. He plans to introduce the measure as part of the annual Coast Guard reauthorization bill, which the House of Representatives could pass by the end of the year.

Cummings, an attorney who practiced law in Baltimore for 19 years before being elected to Congress, said his office has been deluged by calls and letters from mariners who say they believe the existing Coast Guard system is unfair. Some told him they accepted plea bargains for offenses they didn't commit, because they believed the Coast Guard court would not give them a fair hearing.

"I've heard that from so many people it's incredible," said Cummings, who chairs the Coast Guard and Maritime Transportation subcommittee of the House Transportation and Infrastructure Committee. "I've never seen anything like it.

"I never knew that so many people had so little confidence in this system - so little confidence that they were receiving fair hearings before the Coast Guard's ALJs."

The Coast Guard has declined to comment on the specific charges of bias, except to deny them generally. And it has apparently not changed how mariner cases are handled and who hears them. Ingolia, who has been the agency's chief ALJ since 1991, was reappointed by Adm. Thad W. Allen, the Coast Guard commandant, in October.

Ingolia and other Coast Guard officials have declined to be interviewed, citing the federal lawsuits. Though they were dismissed before any of the substantive issues were considered, the lawsuits revealed some of the Coast Guard's defenses to the claims.

In one exchange with Assistant U.S. Attorney Glenn K. Schreiber, who represented Ingolia and the Coast Guard, Berrigan recalled exchanges described in Massey's affidavit, in which the former judge claims Ingolia told her and other judges to favor the Coast Guard when making rulings.

"You agree that that's not appropriate?" Berrigan asked Schreiber. "That a judge shouldn't be telling another judge on a case that's not before him what that other judge should do, how that judge should rule?"

Schreiber responded: "I think they were talking of theoretics."

Schreiber noted that Massey also claimed Ingolia told her to act "delicately and nicely and apologetically" if she felt she must rule against the Coast Guard. Without acknowledging that Massey's statements were true, he said they aren't as damning as they first appear.

"He's not saying 'thou shalt never, thou shalt or must,'" Schreiber said. "He's saying 'shouldn't,' but if you have to, do it in such-and-such a way."

According to a memorandum obtained by The Sun, officials in the Coast Guard ALJ's office said during an Oct. 24 conference call with agency judges that Allen, the commandant, has assured them that their office will not be dismantled, despite the efforts of Congress. Coast Guard officials declined to comment to The Sun.

Cummings said he plans to move quickly to take the system away from the Coast Guard.

"I'm more adamant about this now than ever," he said. "And I would hope the Coast Guard would work with us to make it happen."

robert.little@baltsun.com

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