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INSURANCE In the Eyes of the Beholder In its Misconduct Report, the Inspector General repeat- edly chose to give more credence to the many unsworn statements of USCG officials rather than the sworn affi- davit of Judge Massey. In one such instance, the Chief ALJ admittedly told Judge Massey that “she was the problem in District 8.” While, not surprisingly, Judge Massey inter- preted that statement and similar ones in that vein to be his reaction to complaints by USCG Investigating Officers that, among other things, she was making them conduct discovery on cases before her that they didn’t believe warranted, she interpreted the Chief ALJ’s com- ment as a directive to rule in the Coast Guard’s favor. The Chief ALJ countered her interpretation of pressure being implied by stating that his intention was to convey to Judge Massey that she should “follow Coast Guard laws and regulations.” He further asserted that “the Coast Guard’s regulations only provide for limited discovery and that the need for discovery must be balanced by the need for speed and efficiency in hearings, while Judge Massey remained firm in her belief that broad pre-hearing discov- ery was a permissible tool to aid judicial economy.” The problem is that the Coast Guard’s discovery regula- tions could be easily read to support Judge Massey’s dif- fering interpretation. Corrective Actions Proposed While the purpose of this column is not the appropriate forum to dissect the lengthy Misconduct Report despite the troubling conflicts and potential fairness issues it rais- es, the accompanying 34-page document that was simul- taneously released by the Inspector General’s Office appears to acknowledge that the current ALJ system needs some fine tuning if merchant mariners facing career- threatening suspension and revocation proceedings are to get a fair and balanced day in court. In the preface to Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters, (OIG-10-107) dated August 10, 2010, the Department of Homeland Security’s Inspector General, Richard L. Skinner, states “this report addresses certain issues related to the Coast Guard’s system for adju- dicating suspension and revocation matters ... the recom- mendations herein have been developed to the best knowledge available to our office, and have been discussed in draft with those responsible for implementation ... we trust this report will result in more effective, efficient and economical operations.” Among the sections of the report listed on its Table of Contents that address “certain issues” include: • The ALJ Program Needs to Review and Update Certain Policies and Procedures • The S&R Program Needs to Improve Training and Provide Consistent and Effective Legal Support to Investigating Officers • The Coast Guard Needs to Issue Commandant Decisions on Appeal in a Timely Manner and Make Decisions More Accessible to the Public • The Coast Guard Needs to Develop Formal Protocol to Prevent Improper Contacts Among Personnel in the ALJ Program, the Office of Maritime and International Law; and the Officer of Investigations & Analysis A Somewhat Pyrrhic Victory While Judge Massey’s specific charges of past wrongdo- ing did not convince the Inspector General to take any action against those involved, her willingness to speak out at the cost of her ALJ career does not appear to be com- pletely in vain. If indeed actions are taken in response to the Inspector General’s key recommendations, mariners facing S&R proceeding can feel more confident that their future cases will be adjudicated in a fair and impartial forum. For full copies of both the Misconduct Report and the Recommendations to Improve the Coast Guard’s System for Adjudicating Suspension and Revocation Matters, please call the Office of Inspector General/(OIG) at (202) 254-4100, fax your request to (202) 254-4305 or visit the OIG website (www.dhs.gov/oig). MN Randy O’Neill is Senior Vice President of Lancer Insurance Company. Contact him at roneill@lancer-ins.com or (516) 431-4441, ext. 3300. 18 MN November 2010
