Structural Safeguards in Coast Guard Suspension and Revocation Proceedings
This article examines 10 structural safeguards in Coast Guard Suspension and Revocation (S&R) Proceedings that ensure Coast Guard Administrative Law Judge (ALJ) decisional independence. These safeguards separate potential agency influences from the ALJ decision making process and are critical to mariner due process and fundamental fairness.
We will start with an overview of Coast Guard S&R proceedings, followed by brief discussions of the Administrative Procedure Act, Administrative Law Judges, and U.S. Office of Personnel Management oversight. We will then examine the ten structural safeguards and conclude by identifying the outcomes these structural safeguards produce.
Background Discussion on S&R Proceedings
To promote safety at sea, sections 7701-7706 of title 46, U.S. Code provide mariner credentials may be suspended or revoked for misconduct, negligence, violation of law or regulation, use of dangerous drugs or convictions involving dangerous drugs, certain other criminal convictions, incompetence, a security risk threatening safety or security, or having committed sexual assault or sexual harassment.
After a Coast Guard Investigating Officer (IO) collects sufficient evidence demonstrating and supporting that the mariner committed any of these acts, that IO initiates the formal suspension and revocation process by preparing a Complaint alleging the necessary facts to put the mariner on notice of the offense(s) committed. The IO also includes a proposed sanction in the Complaint which is typically suspension or revocation of the mariner’s credential.
The IO then serves the Complaint on the mariner and files a copy with the Administrative Law Judge Docketing Center. The mariner must file an Answer to the Complaint within twenty days. In a typical case, once the Complaint is filed and served, and the mariner files an Answer, the Chief Administrative Law Judge, through the Hearing Docket Clerk, assigns the case to an ALJ.
Occasionally, the mariner and the IO will enter into a settlement agreement early in the process and the ALJ will issue an Order consenting or rejecting the settlement agreement. In the absence of an early settlement agreement, the ALJ convenes a pre-hearing teleconference to select the date and place for hearing and establish a schedule for the parties to file their motions and exchange witness and exhibit lists. The case will then proceed to hearing like a civil trial without a jury as allowed in federal or state court.
At the close of the hearing, the parties are provided the opportunity to submit post hearing briefs and proposed findings and conclusions, unless waived. If both parties waive that right, the ALJ my issue a decision from the bench, in which case the decision takes effect immediately; otherwise, the
ALJ will issue a decision and order after receiving the post hearing briefs and proposed findings and conclusions. The parties may appeal the ALJ’s decision to the Commandant and then to the National Transportation Safety Board, followed by an appeal to the appropriate U.S. Circuit Court of Appeals, then to the Supreme Court of the United States.
The Administrative Procedure Act and Administrative Law Judges
The Administrative Procedure Act (APA) of 1946 created the Administrative Law Judge (ALJ or Judge) function to ensure fairness in formal administrative proceedings before federal government agencies. The Coast Guard is one of thirty-two federal agencies conducting formal adjudication proceedings requiring a decision on the record by an Administrative Law Judge after an opportunity for hearing in accordance with the Administrative Procedure Act (APA) and the agency’s regulations. 5 U.S.C. §§ 551-559. The Coast Guard is authorized seven ALJs which are individually located in Seattle, Alameda, Houston, New Orleans, Baltimore, and New York. The Chief Judge is in Washington, DC.
Office of Personnel Management Oversight
The U.S. Office of Personnel Management (OPM) is responsible for ensuring the independence of ALJs. It does so by assuring ALJ appointments, pay, tenure, promotions, transfers, reinstatements, reassignments, and discipline, among other things, are consistent with applicable laws and regulations by providing for separation and insulation between the ALJ position and the employing agency. 5 C.F.R. §§ 930.201 - 211.
Structural Safeguards
First, for the Coast Guard, ALJs may not “be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions.” 5 U.S.C. § 554(d)(2); 33 C.F.R. § 20.206(a).
Coast Guard ALJs are senior civilian officials selected by the Coast Guard and appointed by the Secretary of Homeland Security. They perform their adjudicative functions pursuant to the APA and agency regulations which provide them with decisional independence within the parameters of the regulations and Commandant Appeal Decisions. ALJs are vested with complete decisional independence in their decisions and orders; however, applicable statutes, regulations, and Commandant Decisions on Appeal or Review are binding on ALJs unless those Decisions are modified or rejected by competent authority. 46 C.F.R. § 5.65.
Second, ALJs may not perform duties inconsistent with their duties and responsibilities as administrative law judges. 5 U.S.C. § 3105; 5 C.F.R. § 930.207. This safeguard prevents agencies, including the Coast Guard, from assigning ALJs duties outside their normal duties of hearing and deciding cases. It ensures ALJs devote their full-time efforts to adjudication.
Third, 5 C.F.R. § 930.201(c) prescribes “[t]he title ‘administrative law judge’ is the official title for an administrative law judge position. Each agency must use only this title for personnel, budget, and fiscal purposes.” This regulation recognizes the unique position and separate duty status of administrative law judges compared to other agency senior personnel. It promotes ALJ independence by preventing agencies from absorbing ALJs into the agency’s general leadership, management, and administration by assigning them duties inconsistent with administrative law judge duties.
Fourth, agencies, including the Coast Guard, may not require job performance evaluations of their ALJs. 5 C.F.R. § 930.206(a). This safeguard protects the decisional independence of the ALJ by removing agency performance pressures on the ALJ, thereby removing the potential for ALJ bias or implicit bias toward the agency.
Fifth, the agency may not grant any monetary or honorary award or incentive to an ALJ. 5 C.F.R. §930.206(b). Awards or incentive pay can create the appearance of potential bias against the mariner. Removing possible awards to ALJs protects the mariner and buttresses ALJ independence.
Sixth, Congress established a separate pay system for ALJs under 5 U.S.C. § 5372. OPM, not the agency, including the Coast Guard, sets and manages ALJ pay levels. 5 C.F.R. § 930.205. This safeguard protects the ALJ by creating a greater distance between the employing agency and ALJs on matters of compensation and promotion, thereby further enabling ALJs to direct their attention towards adjudicating the cases before them independently.
Seventh, 33 C.F.R.§ 20.206(b) takes the structural separation described in the First Safeguard one step further. It precludes anyone who investigates or represents the Coast Guard in any factually related administrative proceeding from participating or advising in the ALJ’s decision or in the Commandant’s decision on appeal, except as a witness or counsel in the proceeding or the appeal.
Even further, ALJs may not speak to the Coast Guard Investigating Officer, prosecutor, or respondent about the merits of a case without the opposing party being present. This is commonly known as ex parte communication. 5 U.S.C. § 554(d)(1). Ex parte communication is defined by the Administrative Procedure Act at 5 U.S.C. 551(14) as “an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter.”
An extensive and detailed list of established guidelines to avoid prohibited ex parte communications among all Coast Guard entities involved in an S&R case is found in COMDTINST 5830.3 and is available HERE. For example, guideline #1 under paragraph “9.c” of that Instruction provides “Coast Guard personnel participating in a pending S&R case or who have developed or are developing a position in a pending case are not to communicate the merits of that case with any ALJ or ALJ employee advising the Judge in that case or any factually related cases except on the record.”
Even when handling inquiries and requests to examine and copy records, ALJ Docketing Center personnel are not to discuss the merits of any pending case or reveal pre-decisional information. COMDTINST 5830.3 at 9.e(3). This safeguard further separates the ALJ from the agency’s investigating and prosecuting functions, thereby preserving the ALJ’s independence, the mariner’s due process rights, and fundamental fairness.
Eighth, the mariner has a right to have an attorney or representative present during all S&R proceedings. 33 C.F.R. § 20.301. If the mariner is of limited means to afford an attorney, the Office of the Chief Administrative Law Judge has established a pro bono program. Private sector attorneys interested in assisting mariners in their S&R matters as a pro bono endeavor have provided their name and contact information to us so that the mariner respondent can contact the attorney and arrange representation. Because the attorney is offering to take on these cases at a lower cost or free of charge, the mariner would need to demonstrate his or her needy circumstances. Visit our website and under the heading “Free Legal Assistance” provides guidance on obtaining a volunteer attorney.
Ninth, at the end of the hearing, the parties will have the opportunity to submit closing briefs and proposed findings of fact and conclusions of law. 5 U.S.C. § 557; 33 C.F.R. § 20.710. This is further due process after the in-person hearing and provides the mariner with another opportunity to argue the facts presented at hearing.
Tenth, after the ALJ issues the Decision and Order, mariners have a right to appeal the ALJ’s decision to the Commandant. 33 C.F.R. § 20.1001. The mariner can further appeal the Commandant’s decision to the National Transportation Safety Board (49 C.F.R. part 825) and thence to the appropriate Circuit Court of Appeals. From there, the mariner can petition the Supreme Court of the United States. Contained within the right to appeal to the Commandant is the safeguard that no Coast Guard person who investigated or prosecuted the case may participate or advise in the decision of the ALJ or of the Commandant. 33 C.F.R. § 20.206(b). Finally, the mariner may also petition to reopen the case if it is shown that any change in fact or law, or that the public interest, warrants reopening. 33 C.F.R. § 20.904.
Eleventh, the law requires that when an agency, including the Coast Guard, finds it necessary to remove an ALJ from government service, or suspend, reduce in grade, or furlough an ALJ for 30 days or less, it may not do so unless it establishes good cause as determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board. 5 U.S.C. § 7521; 5 C.F.R. § 930.211. This safeguard further insulates the ALJ’s decisional independence from agency actions for reasons less than good cause.
To initiate a disciplinary action, the agency must file a Complaint against the ALJ with the Merit Systems Protection Board. The Complaint must allege conduct that, if found proved, would constitute good cause for the agency to take the disciplinary action requested. The Board appoints an ALJ to conduct the proceedings which mirror a civil case initiated in U.S. District Court without a jury. At the conclusion of the proceedings and post hearing briefs, the MSPB designated ALJ issues an Initial Decision which the Respondent may appeal to the Board. The Board’s decision may be appealed to the U.S. Circuit Court of Appeals for the Federal Circuit and thence to the Supreme Court.
Conclusion
These structural safeguards ensure Coast Guard Administrative Law Judge (ALJ) decisional independence and protect a mariner’s right to due process and fundamental fairness. For Coast Guard ALJs, these protections allow the judges to perform their judicial duties fairly, impartially, and in a manner that secures the trust and confidence of the parties to the dispute, the regulated community, and to the public. Coast Guard ALJs further that trust and confidence by treating the parties with respect and by issuing clear decisions and orders the public understands and accepts as correct, fair, and well-reasoned.
The opinions expressed in this article are the author’s alone and do not necessarily reflect the official policy of the U.S. Coast Guard