Coast Guard
Administrative Law Judge Program Contains Elements Designed to Foster Judges' Independence and Mariner Protections Assessed Are Being Followed Gao ID: GAO-09-489 June 12, 2009The United States Coast Guard's Administrative Law Judge (ALJ) program is designed to, among other things, promote safety at sea while protecting mariners' rights and is composed of judges whose duties include presiding over cases involving mariners' credentials. If a mariner does not meet certain requirements related to safety and security at sea, Coast Guard investigative officers are to serve the mariner with a complaint that lists the allegation(s) and initiate proceedings that can result in the mariner's credential being suspended or revoked. GAO was asked to review elements of the ALJ program and this report addresses (1) the extent to which the ALJ program contains elements designed to foster the decisional independence of ALJs, (2) the extent to which the ALJ program includes protections for mariners and whether complaints and decisions include elements required by program regulations, and (3) the outcome of mariner suspension and revocation cases in recent years. To conduct this study, GAO analyzed the laws, regulations, and policies governing the ALJ program. GAO also reviewed all suspension and revocation cases opened and closed from November 10, 2005, through September 30, 2008, to determine outcomes, and further reviewed a representative sample of these cases to determine whether complaints and decisions included the required elements. GAO supplemented these case reviews with interviews of Coast Guard ALJ program officials.
The Coast Guard's ALJ program contains elements designed to foster the decisional independence of its judges by following Office of Personnel Management regulations governing the ALJs' hiring and employment. These regulations are designed to ensure that the ALJs are not subject to undue influence from Coast Guard officials. For example, personnel actions against a judge, such as the removal of an ALJ, may only be taken through an independent agency, the Merit Systems Protection Board. The Coast Guard's ALJ program contains protections for mariners--such as the right to a hearing and representation--and complaints filed by the Coast Guard and decisions issued by ALJs that we reviewed generally included the required elements. In particular, GAO reviewed cases opened and closed from November 10, 2005, through September 30, 2008, and determined that (1) regulations governing complaints, which are intended to notify mariners of the allegations against them; and (2) regulations requiring ALJs' decisions to contain certain elements, such as finding of fact, were being followed. Based on GAO's review of the 1,675 suspension and revocation cases opened and closed from November 10, 2005, through September 30, 2008, the majority (62 percent) resulted in settlement agreements; for example, a mariner may give up his or her credential while completing safety training. In these cases, the outcomes were determined through negotiations between the mariners and the Coast Guard. In contrast, 3 percent of the cases resulted in a hearing before an ALJ that ended with a decision and order--a decision presents the ALJ's findings, while an order states the sanction, if any, imposed on the mariner. The remaining 36 percent of cases had a variety of outcomes. The disposition of all cases reviewed is shown below. In commenting on a draft of this report, the Coast Guard generally concurred with the findings and believes that the report is both complete and accurate.
GAO-09-489, Coast Guard: Administrative Law Judge Program Contains Elements Designed to Foster Judges' Independence and Mariner Protections Assessed Are Being Followed
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
June 2009:
Coast Guard:
Administrative Law Judge Program Contains Elements Designed to Foster
Judges' Independence and Mariner Protections Assessed Are Being
Followed:
GAO-09-489:
GAO Highlights:
Highlights of GAO-09-489, a report to congressional requesters.
Why GAO Did This Study:
The United States Coast Guard‘s Administrative Law Judge (ALJ) program
is designed to, among other things, promote safety at sea while
protecting mariners‘ rights and is composed of judges whose duties
include presiding over cases involving mariners‘ credentials. If a
mariner does not meet certain requirements related to safety and
security at sea, Coast Guard investigative officers are to serve the
mariner with a complaint that lists the allegation(s) and initiate
proceedings that can result in the mariner‘s credential being suspended
or revoked. GAO was asked to review elements of the ALJ program and
this report addresses (1) the extent to which the ALJ program contains
elements designed to foster the decisional independence of ALJs, (2)
the extent to which the ALJ program includes protections for mariners
and whether complaints and decisions include elements required by
program regulations, and (3) the outcome of mariner suspension and
revocation cases in recent years.
To conduct this study, GAO analyzed the laws, regulations, and policies
governing the ALJ program. GAO also reviewed all suspension and
revocation cases opened and closed from November 10, 2005, through
September 30, 2008, to determine outcomes, and further reviewed a
representative sample of these cases to determine whether complaints
and decisions included the required elements. GAO supplemented these
case reviews with interviews of Coast Guard ALJ program officials.
What GAO Found:
The Coast Guard‘s ALJ program contains elements designed to foster the
decisional independence of its judges by following Office of Personnel
Management regulations governing the ALJs‘ hiring and employment. These
regulations are designed to ensure that the ALJs are not subject to
undue influence from Coast Guard officials. For example, personnel
actions against a judge, such as the removal of an ALJ, may only be
taken through an independent agency, the Merit Systems Protection
Board.
The Coast Guard‘s ALJ program contains protections for mariners”such as
the right to a hearing and representation”and complaints filed by the
Coast Guard and decisions issued by ALJs that we reviewed generally
included the required elements. In particular, GAO reviewed cases
opened and closed from November 10, 2005, through September 30, 2008,
and determined that (1) regulations governing complaints, which are
intended to notify mariners of the allegations against them; and (2)
regulations requiring ALJs‘ decisions to contain certain elements, such
as finding of fact, were being followed.
Based on GAO‘s review of the 1,675 suspension and revocation cases
opened and closed from November 10, 2005, through September 30, 2008,
the majority (62 percent) resulted in settlement agreements; for
example, a mariner may give up his or her credential while completing
safety training. In these cases, the outcomes were determined through
negotiations between the mariners and the Coast Guard. In contrast, 3
percent of the cases resulted in a hearing before an ALJ that ended
with a decision and order”a decision presents the ALJ‘s findings, while
an order states the sanction, if any, imposed on the mariner. The
remaining 36 percent of cases had a variety of outcomes. The
disposition of all cases reviewed is shown below.
In commenting on a draft of this report, the Coast Guard generally
concurred with the findings and believes that the report is both
complete and accurate.
Figure: Disposition of the 1,675 Suspension and Revocation Cases Opened
and Closed from November 10, 2005, through September 30, 2008:
[Refer to PDF for image: pie-chart]
Settlement: Coast Guard and mariner enter into negotiated settlement:
62%; Default: Mariner fails to respond to complaint or appear at
hearing: 11%; Withdrawal: Coast Guard withdraws complaint: 9%;
Voluntary surrender: Mariner voluntarily relinquishes the credential
permanently: 9%; Admission: Mariner admits to allegations: 7%; Decision
and order: ALJ issues decision and order after hearing: 3%.
Source: GAO analysis of Coast Guard ALJ case outcomes.
Note: Percentages do not add to 100 due to rounding.
[End of figure]
What GAO Recommends:
View [hyperlink, http://www.gao.gov/products/GAO-09-489] or key
components. For more information, contact Stephen L. Caldwell at (202)
512-8777 or caldwells@gao.gov.
[End of section]
Contents:
Letter:
Background:
The Coast Guard's ALJ Program Contains Elements Designed to Foster the
Decisional Independence of Its Judges:
Coast Guard's ALJ Program Contains Protections for Mariners' Interests
and Complaints and Decisions That We Reviewed Generally Included the
Required Elements:
Majority of Mariners' Cases Resulted in Settlement Agreements, with
Relatively Few Decided by Coast Guard Judges:
Agency Comments:
Appendix I: Comparison of the Structure and Procedures of
Administrative Law Judge Programs at Select Federal Agencies:
Appendix II: Objectives, Scope, and Methodology:
Appendix III: Details Regarding the Sanction Outcomes of Mariners'
Suspension and Revocation Cases:
Appendix IV: Comments from the Department of Homeland Security:
Appendix V: GAO Contact and Staff Acknowledgments:
Related GAO Products:
Table:
Table 1: Administrative Procedures of the Coast Guard ALJ Program
Compared to Three Other ALJ Programs in the Federal Government:
Figures:
Figure 1: Photographs Showing the Exxon Valdez and the Damage Caused as
a Result of the Captain's Failure to Abide by Safety Standards:
Figure 2: Disposition of the 1,675 Suspension and Revocation Cases
Opened and Closed from November 10, 2005, through September 30, 2008:
Figure 3: Sanction Outcomes of the 1,035 Suspension and Revocation
Cases That Resulted in Settlement Agreements from November 10, 2005,
through September 30, 2008:
Figure 4: Disposition of the 45 Decision and Order Cases from November
10, 2005, through September 30, 2008:
Figure 5: Sanction Outcomes of the 1,675 Suspension and Revocation
Cases Opened and Closed from November 10, 2005, through September 30,
2008:
Figure 6: Sanction Outcomes of 116 Admissions Cases Opened and Closed
from November 10, 2005, through September 30, 2008:
Figure 7: Sanction Outcomes of the 177 Default Cases Closed from
November 10, 2005, through September 30, 2008:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
June 12, 2009:
Congressional Requesters:
The United States Coast Guard, a component within the Department of
Homeland Security, is charged with ensuring that over 200,000 licensed
merchant mariners are competent and their conduct promotes marine
safety, security, and protection of the marine environment. If a
mariner does not meet certain requirements related to safety and
security at sea, Coast Guard investigative officers serve the mariner
with a complaint, initiating proceedings that can result in the
suspension or revocation of the mariner's credential, which would
temporarily or permanently bar the mariner from working in a maritime
position that requires that credential.
The Coast Guard's Administrative Law Judge (ALJ) program is composed of
judges who, among other things, preside over cases involving the
suspension and revocation of merchant marine credentials.[Footnote 1]
An ALJ's function as an impartial decision maker is similar to the role
of a trial judge presiding over nonjury civil proceedings. ALJs preside
in administrative proceedings that provide mariners the right to be
represented by counsel and to call and cross-examine witnesses. Coast
Guard ALJs review or preside over 600 suspension and revocation
adjudications annually.[Footnote 2]
Press reports and congressional hearings highlighted concerns about the
decisional independence of ALJs in the Coast Guard ALJ system. As a
result, Congress asked us to review the Coast Guard's ALJ program
[Footnote 3]. In particular, this report addresses the following
questions:
* To what extent does the Coast Guard's ALJ Program contain elements
designed to foster the decisional independence of ALJs?
* To what extent does the Coast Guard's ALJ Program include protections
for mariners, and do complaints and decisions include elements required
by the program's regulations?
* What is the disposition of Coast Guard ALJ suspension and revocation
cases that were opened and closed from November 10, 2005, through
September 30, 2008?
Appendix I discusses the similarities and differences in the structure
and regulations governing the Coast Guard's ALJ program with those of
ALJ programs in three other federal agencies--the U.S. Department of
Agriculture (USDA), the U.S. Securities and Exchange Commission (SEC),
and the National Transportation Safety Board (NTSB).
To address the first and second objectives, we analyzed the statutory
provisions of the Administrative Procedure Act (APA), the Office of
Personnel Management (OPM) regulations on administrative law judges,
and Coast Guard regulations and policies and procedures governing
administrative actions. Through reviews of the APA and pertinent OPM
and Coast Guard regulations, we determined what structural elements are
in place that are designed to foster the ALJs' decisional independence.
We did not, however, assess whether the structural elements are
effective at ensuring the ALJs' decisional independence.
For the second and third objectives, we initially obtained data from
the Coast Guard ALJ program's case tracking database. Through
discussions with knowledgeable officials from the Coast Guard's Office
of Administrative Law Judges (OALJ), we determined that the database
was not designed to capture all of the information necessary for
addressing our specific objectives. In particular, the database was
designed to function as a case tracking system and was not intended to
capture the type of information that we were seeking. For example,
outcomes were not categorized in a way that was consistent with how we
intended to report them. As a result, to address these objectives we
performed a review of mariners' cases that had been completed in recent
years. Due to a change in policy regarding the disposition of cases
involving convictions for violations of drug laws that was effective
from November 10, 2005, we limited the time frame for our case file
reviews to those cases that were opened and closed from November 10,
2005, through September 30, 2008. To address the second objective, we
selected a random, probability sample of 181 of the 1,675 closed cases
to determine the extent to which certain mariner protections identified
in Coast Guard procedures were documented in the mariners' case files.
To address the third objective, we reviewed all 1,675 mariner case
files to determine the procedural and sanction-based outcomes
associated with the cases.[Footnote 4] To verify the outcomes were
recorded accurately, we had a pair of independent analysts subsequently
selected a random sample of 198 cases (from the population of 1,675
cases) and recorded their outcomes. Then, this same pair of analysts
compared their results with the originally recorded outcomes for the
same 198 cases. Based on the results of this comparison, we estimate
that the error rate in recording case outcomes for the population
(1,675) is 2 percent; and we are 95 percent confident that the actual
error rate is less than or equal to 5 percent. Therefore, we conclude
that the data generated from our analysis are sufficiently reliable for
the purposes of our review.
In addition to the case file reviews, we also compared the structure
and procedures of the Coast Guard's ALJ program to ALJ programs of
three other federal agencies. In doing this comparison, we reviewed the
regulations governing each of the programs and interviewed officials at
each of the agencies. We did not perform a case file review of the
other agencies to determine whether their procedures were being
followed or evaluate the effectiveness of their adjudicatory processes.
Rather, we summarized the structures and procedures and highlighted
similarities and differences among the agencies' programs to provide
context for the Coast Guard's ALJ program.
We conducted this performance audit from May 2008 to June 2009 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings
based on our audit objectives. Appendix II provides additional details
about our scope and methodology.
Background:
Administrative Adjudications for the Federal Government:
The Administrative Procedure Act (APA), enacted in 1946, established
minimum uniform standards for agency adjudications. Before the
enactment of the APA, the functions of investigation, prosecution, and
adjudication were generally combined within a federal agency. Because
federal agencies often promulgated policy through the adjudication
process, agency heads had to control agency policy by overseeing
adjudications. However, critics raised concerns that the fairness of
the evidentiary fact-finding associated with adjudications may be
jeopardized by the policy priorities of the agency head. The APA served
to separate the fact-finding process and policy-making by establishing
the position of the ALJ, which was to be insulated from undue agency
influence and designed to oversee the fact-finding process.
Specifically, the APA includes, among other things, requirements for
ALJ appointment, pay, and tenure, as well as procedural requirements
for adjudications over which ALJs preside, such as requirements related
to evidence. At the same time, because ALJ decisions are subject to
review within the agency, this process allows the agency head to
maintain control over agency policy.
The APA has been implemented through OPM and agency-level regulations.
Agencies that employ ALJs operate according to OPM regulations that
govern the appointment, compensation, and removal of all ALJs in the
federal government. Furthermore, each agency that conducts
adjudications under the APA also has its own regulations or rules of
practice, based on the APA, that govern its proceedings.
According to OPM's Central Personnel Data File, as of March, 2008, 30
federal agencies employed ALJs. The purpose and scope of the
administrative proceedings vary greatly among agencies. For example,
the Social Security Administration adjudicates non-adversarial cases
involving disputes about individual disability claims, the National
Labor Relations Board adjudicates cases involving allegations of unfair
labor practices, and the Environmental Protection Agency adjudicates
cases involving the suspension and revocation of facility permits and
violations of environmental regulations.
Several of the federal agencies that employ ALJs, including the Coast
Guard, employ ALJs who adjudicate cases involving the suspension and
revocation of credentials that are necessary for employment in a
particular field. For example, USDA employs ALJs who hear cases
involving individuals employed by firms that buy and sell perishable
agricultural commodities and dealers and exhibitors of animals, among
other things. The Securities and Exchange Commission's (SEC) ALJs
handle cases involving individuals employed by broker-dealers and
investment advisers.[Footnote 5] NTSB hears cases involving airmen,
which include pilots, flight instructors, air traffic control-tower
operators, and mechanics, among others. For more information about
these agencies' ALJ programs, see appendix I.
The Coast Guard ALJ Program:
The Coast Guard issues credentials that permit merchant mariners to
engage in commerce at sea. There are several types of credentials that
a mariner may need to be employed on a vessel. Mariners must meet
certain requirements to obtain each type of credential, as well as
ongoing requirements to continue operating under it. Merchant mariner
documents are required for mariners that serve on merchant vessels of
at least 100 gross tons, with some exceptions, and serve as
certificates of identification and qualification. Licenses are required
for officers, and certificates of registry are issued to medical
personnel and pursers.[Footnote 6] Standards of Training,
Certification, and Watchkeeping for Seafarers endorsements are issued
to mariners who hold another merchant mariner credential and who meet
international standards and serve aboard vessels to which the standards
apply.[Footnote 7]
The purpose of suspension and revocation proceedings is to promote
safety at sea. If a mariner does not meet certain safety and security
requirements, the Coast Guard may initiate proceedings to suspend or
revoke the mariner's credential. Federal law establishes circumstances
in which the Coast Guard may, or must, suspend or revoke a mariner's
credential. For example, the law provides that a credential may be
suspended or revoked if the holder is convicted of certain driving
offenses or poses a threat to the safety or security of a vessel or the
marine environment.[Footnote 8] The law also provides that a credential
must be suspended or revoked if it is shown at a hearing that the
mariner has been convicted of violating a dangerous drug law within the
prior 10 years and that a credential must be revoked if it is shown at
a hearing that the mariner has been a user of, or addicted to, a
dangerous drug, unless the mariner provides satisfactory proof that he
or she is cured.[Footnote 9]
The Coast Guard has issued regulations implementing the law, including
that the Coast Guard may initiate an investigation when it appears that
there are reasonable grounds to believe that a merchant mariner may
have (1) committed an act of incompetence, misconduct, or negligence
while acting under the authority of the credential; (2) violated any
law or regulation intended to promote marine safety or to protect the
navigable waters while acting under the authority of a credential; or
(3) been convicted of a dangerous drug law violation or been a user of,
or addicted to, a dangerous drug.[Footnote 10]
An example of a case that demonstrates the importance of safety at sea
is the case of the Exxon Valdez. Specifically, in March 1989, tank
vessel Exxon Valdez struck Bligh Reef in Alaska; what followed was the
largest oil spill in U.S. history. According to ExxonMobil, the company
spent $2.2 billion on cleanup. Finding that the master of the vessel
had consumed alcohol within 4 hours of performing scheduled duties and
had left the bridge of the ship before the accident, the Coast Guard
ALJ suspended the master's license for 9 months, with an additional 3
months suspension if further violations of law governing his credential
were proved. Figure 1 below shows photographs of the Exxon Valdez and
the aftermath of its oil spill.
Figure 1: Photographs Showing the Exxon Valdez and the Damage Caused as
a Result of the Captain's Failure to Abide by Safety Standards:
[Refer to PDF for image: two photographs]
Source: U.S. Coast Guard.
[End of figure]
As of May 2009, the Coast Guard employs six ALJs; one Chief ALJ and
five field ALJs. The Chief ALJ is located in Baltimore, Maryland. Field
positions for ALJs are located in Alameda, California; New Orleans,
Louisiana; New York, New York; Houston, Texas; Norfolk, Virginia; and
Seattle, Washington (the Seattle position is vacant as of April
2009).[Footnote 11] Coast Guard ALJs are assigned cases by the Chief
ALJ, who reports to the Commandant of the Coast Guard. Cases are
assigned to ALJs on a rotational basis, unless the case is contested
and may lead to a hearing. Under those circumstances, the case is
assigned to an ALJ based on geographic proximity to the mariner. The
Coast Guard ALJ Docketing Center (located in Baltimore, Maryland), is
the centralized office that handles the administrative duties related
to suspension and revocation cases.
Coast Guard Administrative Proceedings:
If a Coast Guard investigating officer determines that a suspension and
revocation proceeding is appropriate, the officer serves a complaint on
the mariner, which outlines the allegations against him or her. After
the investigating officer has served the complaint, but before the
mariner has taken any action, the officer may withdraw the complaint
without any action by the ALJ if, for example, the officer is unable to
locate the mariner or if he or she determines that there is not
sufficient evidence to pursue the case.
There are several actions that a mariner can take in response to a
complaint. These actions include (1) not responding to the complaint
(default), (2) admitting all the allegations (admission), (3) denying
some or all of the allegations (denial and hearing), (4) entering into
a settlement agreement (settlement agreement), or (5) voluntarily
surrendering his or her credential rather than appearing at a hearing
(voluntary surrender). In addition to these mariner actions, the Coast
Guard can temporarily suspend a mariner's credential without a hearing
(temporary suspension). Further details on each of these actions are
addressed below.
Default:
If the mariner does not respond to a complaint, the ALJ may issue a
default order, which is considered an admission of the facts alleged in
the complaint and a waiver of the right to a hearing on those
facts.[Footnote 12] Any time after a mariner has been found in default,
the mariner may present good cause, such as evidence of being at sea,
to set aside the default order. If the mariner does not submit an
answer and the investigative officer does not file a motion for default
within 180 days after the expiration of the answer period, the
docketing center will administratively withdraw the complaint.
Admission:
The mariner may file an answer admitting all of the allegations in the
complaint, and the ALJ will issue an appropriate admissions order. For
example, if the Coast Guard filed a complaint alleging that a mariner
was negligent and proposed a 6-month suspension and the mariner
admitted the allegation, the ALJ would then review the complaint and
answer and, if proper, issue an order suspending the mariner's
credential for 6 months.
Denial and Hearing:
If the mariner wishes to deny any allegation, the mariner must file an
answer to the complaint denying the allegation(s), and the mariner may
request a hearing. At the hearing, the mariner (or his or her legal
representative) and the investigative officer may present evidence in
defense or support of the case and may conduct cross-examination of any
evidence presented.[Footnote 13] The officer bears the burden of
proving the case by a preponderance of the evidence; that is, the
officer must prove that the allegations are more likely to be true than
not.[Footnote 14] If the mariner does not appear at a conference or a
hearing and does not show good cause for failing to appear, the ALJ may
issue a default order.[Footnote 15] After the hearing, the ALJ issues a
decision and order,[Footnote 16] which must include the sanction, if
any, imposed on the mariner.[Footnote 17]
Settlement Agreement:
If the mariner wishes to enter into a settlement agreement with the
Coast Guard, the parties may submit a proposed settlement to the ALJ,
who must approve the agreement.[Footnote 18] The settlement agreement
may provide, for example, that in exchange for taking a maritime safety
course, the proposed sanction of a 6-month suspension may be reduced to
a 3-month suspension.
Voluntary Surrender:
The mariner may also voluntarily surrender his credential in preference
to appearing at a hearing. The mariner must sign a written statement
affirming that the surrender is made voluntarily in preference to
appearing at a hearing, that all rights to the credential are
permanently relinquished, and that any rights to a hearing are
waived.[Footnote 19]
Temporary Suspension:
In certain circumstances, such as when a mariner performs a safety-
sensitive function on a vessel and there is probable cause to believe
that the mariner has violated a law or regulation regarding the use of
alcohol or a dangerous drug,[Footnote 20] the Coast Guard may
temporarily seize the mariner's credential without a hearing, so long
as the ALJ holds a hearing within 30 days and issues a decision 45 days
or less after the temporary suspension.[Footnote 21] According to Coast
Guard officials, a majority of cases that resulted in temporary
suspensions were drug and alcohol-related cases.
Outcomes of Coast Guard ALJ Cases:
Each mariner case has two types of outcomes, procedural and sanction.
Procedural outcomes include courses of action, such as a negotiated
settlement between a mariner and the Coast Guard, or a decision and
order issued by an ALJ as a result of a hearing. The other types of
outcomes--sanction outcomes--are the actions taken against the
mariner's credential and include penalties, such as suspension or
revocation. Thus, for example, the outcome of a case may be that a
mariner could enter into a negotiated settlement (procedural outcome)
in which he or she agrees to a suspension of his or her credentials for
a specified period of time (sanction outcome).
Procedures for Appeals:
Once a Coast Guard ALJ has decided a case, either a mariner or an
investigating officer may appeal the ALJ's decision to the Commandant
of the Coast Guard.[Footnote 22] The Commandant reviews the record on
appeal to determine whether the ALJ committed an error in the
proceedings and whether the ALJ's decision should be affirmed,
modified, reversed, or should be remanded for further proceedings. The
Commandant then issues a written decision.
If the Commandant affirms an ALJ decision to revoke or suspend a
credential, the mariner may then appeal the Commandant's decision to
NTSB.[Footnote 23] NTSB may affirm the Commandant's decision, set aside
the Commandant's decision and dismiss the case, or set aside the
Commandant's findings, conclusions, or order and remand the case to the
Commandant for further consideration. A mariner or the Commandant may
seek judicial review of NTSB's decision in an appropriate U.S. court of
appeals or the U.S. Court of Appeals for the District of Columbia
Circuit.[Footnote 24]
The Coast Guard's ALJ Program Contains Elements Designed to Foster the
Decisional Independence of Its Judges:
The structure of the Coast Guard's ALJ program contains elements
designed to foster the decisional independence of its judges through a
series of administrative requirements related to appointment, pay, and
tenure that are mandated by the APA and administered by OPM. In
addition to regulations implemented by OPM, which govern ALJ programs
for the federal government, the Coast Guard has issued additional
regulations that govern its administrative proceedings and are designed
to ensure judges' decisional independence. Both OPM and Coast Guard
regulations stem from APA provisions, which in part are designed to
foster the decisional independence of ALJs.
OPM Regulations Are Designed to Foster Judges' Decisional Independence:
OPM regulations regarding the ALJ appointment processes are designed to
ensure that ALJs are hired based on their merits and not for other
reasons, such as political views or loyalties to a federal agency, thus
fostering decisional independence. For example, OPM recruits and
selects ALJs. Although each federal agency, including the Coast Guard,
hires its own ALJs, OPM has been exclusively responsible for the
initial examination, certification, selection, and determination of the
compensation of ALJs for each federal agency that has an ALJ program.
Under this process, OPM periodically conducts competitive examinations
and uses the results of these examinations to rank applicants for ALJ
positions according to their qualifications and skills. Applicants are
to be licensed attorneys authorized to practice law in the United
States (including the District of Columbia, the Commonwealth of Puerto
Rico, or any territorial court). Applicants who meet these minimum
qualification standards and pass the examination are then assigned a
score and placed on a register of eligible hires. Agencies, including
the Coast Guard, then select an ALJ from the top three available
candidates, taking into account the location, geographical preference,
and veterans' preference rules. Additionally, agencies may appoint
current or former ALJs from other federal agencies.
Once an ALJ is hired by a federal agency, OPM regulations regarding ALJ
pay and performance are designed to preserve the ALJ's integrity,
independence, and insulation from agency influence. For example, OPM
regulations state that an agency may not rate the job performance of an
ALJ, nor are agencies allowed to grant any monetary or honorary award
or incentives to ALJs.[Footnote 25] According to OPM regulations, OPM
assigns each ALJ position to one of the three levels of pay (AL-3, AL-
2, or AL-1).[Footnote 26] The pay levels are determined based on the
Executive Schedule, and advancement through the pay levels is primarily
based on time served. These provisions are designed to prevent an
agency from exercising influence over a judge by, for example,
promising raises or bonuses if the ALJ finds in the agency's favor. We
reviewed personnel files and verified that all of the Coast Guard ALJs
that were serving at the time of our review were hired and paid under
OPM regulations.[Footnote 27]
OPM regulations regarding ALJ tenure also serve as a protective measure
that is designed to ensure decisional independence. Upon appointment,
ALJs are given career appointments. As ALJ positions are granted career
appointments, measures exist to protect them from being dismissed or
removed from office without good cause and a hearing before an
independent agency. For example, the APA, as amended, states that an
agency may remove, suspend, reduce in level, reduce in pay, or furlough
for 30 days or less an ALJ only for good cause and after a hearing
before the Merit Systems Protection Board.[Footnote 28]
Coast Guard Regulations Contain Elements Designed to Foster Decisional
Independence:
In addition to OPM regulations, Coast Guard regulations include
provisions designed to foster the decisional independence of the ALJs.
For example, Coast Guard regulations state four key requirements to
ensure the integrity and independence of its ALJs: (1) ALJs may not
engage in ex parte communications;[Footnote 29] (2) ALJs may not be
responsible to or subject to the supervision or direction of those
investigating for or representing the Coast Guard;[Footnote 30] (3)
Coast Guard officers, agents, and employees who investigate for, or
represent the Coast Guard in any administrative proceeding, are
prohibited from participating or advising in the decision of the ALJ,
except as a witness or counsel in the proceeding;[Footnote 31] and (4)
ALJs may disqualify themselves if they have a personal bias.[Footnote
32] These four requirements are designed to ensure that ALJs are
protected from agency coercion or influence and that all persons
related to the case are adequately informed in a fair manner.
Additionally, Coast Guard's OALJ maintains a separate headquarters
office in Baltimore, Maryland and reports directly to the Office of the
Commandant.
Coast Guard's ALJ Program Contains Protections for Mariners' Interests
and Complaints and Decisions That We Reviewed Generally Included the
Required Elements:
The Coast Guard ALJ program contains protections for mariners, and
complaints filed by the Coast Guard and decisions issued by Coast Guard
ALJs that we reviewed generally included the elements required by the
program's regulations. Specifically, in reviewing closed cases, we
found that regulations governing elements to be included in a complaint
filed against a mariner and those required for an ALJ decision were
being followed.
Coast Guard's ALJ Program Contains Procedures for Protecting Mariners'
Interests:
According to the Coast Guard, it is responsible for ensuring that
merchant mariners' conduct promotes marine safety and security, among
other things, and, as such, its ALJ proceedings are designed to protect
the integrity of the credentials rather than to discipline or penalize
merchant mariners. The Coast Guard also recognizes that mariners have
interests in possessing their credentials, and the ALJ program has
procedures that protect the mariners' interests. For example, the ALJ
program allows mariners to dispute any allegations at administrative
hearings, provides that mariners may be represented by attorneys at the
hearings, and allows mariners to appeal ALJs' decisions. For a
discussion of how the protections provided by the Coast Guard's ALJ
program compare to those provided by the other ALJ programs that we
reviewed (USDA, SEC, and NTSB), see appendix I.
APA Protections:
Mariners are afforded specific rights in ALJ hearings under the
APA.[Footnote 33] For example, under the APA, mariners have the right
to:
* Submit evidence and argument in response to allegations;
* Be heard by a judge who is not subject to the supervision of an
employee engaged in the investigation or prosecution of the case;
* Be accompanied, represented, and advised by counsel or other duly
qualified representative;
* Inspect and copy certain, nonprivileged documents obtained or
prepared in connection with the administrative proceeding, and to
request the issuance of subpoenas; and:
* Submit proposed findings of fact and conclusions of law before a
decision is rendered in a particular case.
Coast Guard ALJ Program Protections:
In addition to the protections afforded mariners under the APA, the
Coast Guard has also implemented protections through the regulations
that govern its administrative proceedings. For example, a complaint
filed by the Coast Guard must contain certain elements, such as facts
alleged against the mariner,[Footnote 34] and the decision issued by
the ALJ must contain certain elements, such as findings of fact,
conclusions of law, and sanctions, if ordered.[Footnote 35] Other
protections include the appeals process, expediting hearings, the
ability to reopen a case, and issuance of temporary credentials.
Coast Guard ALJ Program Appeals Process:
The Coast Guard ALJ program's appeal process is designed to protect the
mariners' interests. In particular, any party may appeal the ALJ's
decision to the Commandant of the Coast Guard on any of four issues:
(1) whether each finding of fact is supported by substantial evidence;
(2) whether each conclusion of law is consistent with applicable law,
precedent, and public policy; (3) whether the ALJ abused his or her
discretion; or (4) whether the ALJ's denial of a motion for
disqualification was proper.[Footnote 36] In reviewing the appeal, the
Commandant reviews the record to determine whether the ALJ committed an
error in the proceedings and whether the Commandant should affirm,
modify, or reverse the ALJ's decision or should remand the case for
further proceedings, and the Commandant issues a written decision. If
the Commandant affirms an ALJ decision to revoke or suspend a
credential, the mariner may then appeal the Commandant's decision to
NTSB.[Footnote 37] The grounds for appeal to NTSB are that a finding of
a material fact is erroneous; that a necessary legal conclusion is
without governing precedent or is contrary to law or precedent; that a
substantial and important question of law, policy, or discretion is
involved; or that a procedural error that harmed the interests of the
mariner has occurred.[Footnote 38] NTSB may affirm the Commandant's
decision; set aside the Commandant's decision and dismiss the case; or
set aside the Commandant's findings, conclusions, or order and remand
the case to the Commandant. A mariner or the Commandant may seek
judicial review of NTSB's decision in an appropriate U.S. Court of
Appeals or the U.S. Court of Appeals for the District of Columbia
Circuit.[Footnote 39]
According to Coast Guard officials, from November 10, 2005, through
September 30, 2008, the Coast Guard Commandant made decisions on 29
appeals filed either by the mariner or the Coast Guard. In 9 instances,
the Coast Guard appealed the ALJ decision; in 19 instances, the mariner
appealed the ALJ decision, and in 1 case, both the Coast Guard and the
mariner appealed the ALJ decision. Of the 9 cases in which the Coast
Guard appealed the ALJ decision, the Commandant affirmed the ALJ
decision in 6 cases and overturned the ALJ decision in 3
cases.[Footnote 40] Of the 19 cases in which the mariner appealed the
ALJ decision, the Commandant affirmed the ALJ decision in 16 cases and
overturned the ALJ decision in 3 cases.[Footnote 41] In the case in
which both the Coast Guard and the mariner appealed, the Commandant
affirmed the ALJ decision.
According to the NTSB's Office of Administrative Law Judges (OALJ),
from November 10, 2005, through September 30, 2008, NTSB decided two
appeals of the Commandant's decisions. In both cases, NTSB denied the
appeals and affirmed the Commandant's orders.
Expedited Hearing:
While mariners generally have a right to a hearing before the
suspension or revocation of their credentials, the Coast Guard may
suspend or take immediate possession of a mariner's credential if the
mariner performs a safety-sensitive function on a vessel and there is
probable cause to believe the mariner violated law or federal
regulations regarding alcohol or dangerous drug use, was convicted of
an offense that would preclude issuance of a credential, was convicted
of certain driving offenses, or is a security risk.[Footnote 42] Under
these specific circumstances, the Coast Guard is to (1) immediately
file a complaint with the ALJ Docketing Center, (2) hold an expedited
hearing within 30 days of the temporary suspension, and (3) issue a
decision within 45 days of the temporary suspension. According to Coast
Guard officials, from November 10, 2005, through September 30, 2008,
there were four cases in which mariners' credentials were temporarily
suspended. In two cases, the mariner voluntarily surrendered the
credential, in one case the mariner and the Coast Guard settled; and in
one case, the ALJ issued a decision and order.
Reopening a Case:
As a further protection, ALJs are permitted to reopen a case if it is
believed that a change in fact or law warrants such a reopening or that
it is in the public's interest to reopen the case in order to take
additional evidence. Furthermore, any party may request to reopen a
case within 30 days of the closing of the case, and a mariner may also-
-within 3 years after a suspension and revocation proceeding has
resulted in a revocation of a credential--request to reopen the
proceeding to modify the order of revocation. Requests of this type
must clearly state why the basis for the revocation is no longer valid
and how the issuance of a new license, certificate or document is
compatible with the requirement of good discipline and safety at sea.
[Footnote 43] According to Coast Guard officials, from November 10,
2005, through September 30, 2008, ALJs issued five decisions on motions
to reopen cases--ALJs denied motions to reopen in three cases, and
granted motions to reopen in two cases. Similarly, if a mariner can
show good cause, an ALJ may set aside a finding of default.[Footnote
44] For example, ALJ program officials explained that because mariners
are away at sea for extended periods of time, it is not unreasonable
that complaints served upon their residences may not have reached them
in a timely fashion. Consequently, ALJs are allowed the flexibility to
set aside a default to allow the mariner to exercise his or her right
to a hearing. According to Coast Guard officials, there were no
defaults set aside in our date range.
Temporary Credentials:
Finally, as an added protection, a mariner who has appealed an ALJ
decision suspending or revoking his or her credentials may apply for
temporary credentials pending a decision on the appeal.[Footnote 45]
This application is made either to the ALJ or to the Coast Guard Office
of Investigations and Analysis, depending on whether the case has
already been transferred to the Coast Guard Chief Counsel. Temporary
credentials are valid for 6 months or until the Commandant issues a
decision on the appeal. However, if a decision has not been issued when
a temporary credential expires, a mariner may request another temporary
credential. A mariner who has appealed a decision of the Commandant
affirming a suspension or revocation of his or her credential to NTSB
is also eligible to apply for a temporary credential.[Footnote 46]
These requests must be submitted to the Office of Investigations and
Analysis.
Select Mariner Protections We Assessed Are Being Followed:
Based on our file reviews, we determined that regulations requiring
that certain elements be included in a complaint against a mariner and
in an ALJ decision were being followed. While other protections are to
be in place, as addressed above, we could not objectively verify that
they were followed based on our case file review. Under the ALJ
program, Coast Guard regulations state that complaints filed against a
mariner are to include the following elements:
* the type of case,
* the statute(s) or rule(s) allegedly violated,
* the pertinent facts alleged, and:
* the order of suspension or revocation proposed by the Coast Guard.
[Footnote 47]
Additionally, the Coast Guard investigative officer, as the filing
party of the complaint, is to ensure that the complaint bears a signed
certificate of service.[Footnote 48]
Just as the complaints filed against mariners are to contain specific
elements, decisions rendered by ALJs are to also contain particular
elements. After closing the record of the proceeding, Coast Guard
regulations state that the ALJs are to prepare a decision that contains
the following elements:
* a finding of fact on each material issue of fact and conclusion of
law, as well as the basis for each finding;
* the disposition of the case, including any appropriate order
necessary to achieve that disposition;
* the date on which the decision will become effective; and:
* a statement of further right to appeal.[Footnote 49]
While the ALJ may render a decision orally from the bench, Coast Guard
regulations provide that an oral decision is to also state the issues
in the case and make clear, on the record, the ALJ's findings of fact
and conclusions of law. When an ALJ renders an oral decision, the ALJ
is to also prepare and serve a written order upon the parties after the
conclusion of the hearing. In all cases, the ALJ is required to base
the decision upon a consideration of the whole record of the
proceedings.
We determined that almost all of the case files we reviewed contained
the elements required to be included in a complaint against a mariner.
Specifically, we analyzed a probability sample of 181 cases to
determine the extent to which the case files contained documentation
that included the required elements. Based on this sample, we estimate
that:
* 100 percent of the complaints in the case files set forth the type of
case;[Footnote 50]
* 100 percent of the complaints in the case files set forth the
statute(s) or rule(s) allegedly violated;
* 100 percent of the complaints in the case files set forth the
pertinent facts for the alleged violation;
* 100 percent of the complaints in the case files set forth an order of
suspension or revocation proposed by the Coast Guard; and:
* 95 percent of the complaints in the case files contain a completed
certificate of service.[Footnote 51]
We determined that all cases in which a decision was issued contained
the elements required for an ALJ decision. Of the 1,675 cases opened
and closed from November 10, 2005, through September 30, 2008, 45 ended
with a decision made by an ALJ. Of these 45 cases, 36 cases contained
written decisions issued after the hearing, while the remaining 9 cases
contained oral decisions rendered at the conclusion of the hearing. Our
review of the 36 case files with written decisions showed the
following:
* 100 percent set forth findings on each material issue of fact and
conclusions of law, as well as the basis for each finding;
* 100 percent set forth the disposition of the case, including the
appropriate order;
* 100 percent provided the date upon which the decision became
effective; and:
* 100 percent included a statement of the parties' further right to
appeal the decision.
We also reviewed the 9 cases containing oral decisions provided at the
conclusion of the hearing and found that all 9 contained a subsequent
written order.
Majority of Mariners' Cases Resulted in Settlement Agreements, with
Relatively Few Decided by Coast Guard Judges:
In terms of procedural outcomes, the majority of cases we reviewed
involving the possible suspension or revocation of mariners'
credentials resulted in negotiated settlement agreements between the
mariners and the Coast Guard. For the majority of these cases, the
mariners received a stayed revocation in which they agreed to
voluntarily relinquish their credentials pending completion of certain
conditions--a sanction outcome. In contrast, relatively few cases
resulted in a hearing in which a Coast Guard ALJ issued a decision and
order. For about half of the cases resulting in a decision and order,
the mariners received a sanction of revocation in which they were
ordered to permanently forfeit their credentials.
The Procedural Outcome for the Majority of Mariners' Cases Was a
Settlement Agreement:
Based on our review of the procedural outcomes of the 1,675 suspension
and revocation cases that were opened and closed from November 10,
2005, through September 30, 2008, we found that 1,035 cases (or 62
percent) resulted in settlement agreements, while 45 cases (3 percent)
resulted in decisions and orders by ALJs. The remaining 595 cases (36
percent) resulted in a variety of outcomes. The results or disposition
of all 1,675 cases are shown in figure 2.
Figure 2: Disposition of the 1,675 Suspension and Revocation Cases
Opened and Closed from November 10, 2005, through September 30, 2008:
[Refer to PDF for image: pie-chart]
Settlement: Coast Guard and mariner enter into negotiated settlement:
62%; Default: Mariner fails to respond to complaint or appear at
hearing: 11%; Withdrawal: Coast Guard withdraws complaint: 9%;
Voluntary surrender: Mariner voluntarily relinquishes the credential
permanently: 9%; Admission: Mariner admits to allegations: 7%; Decision
and order: ALJ issues decision and order after hearing: 3%.
Source: GAO analysis of Coast Guard ALJ case outcomes.
Note: Percentages do not add to 100 due to rounding.
[End of figure]
A logical explanation for the relatively large percentage of settlement
agreements is that federal law and Coast Guard regulations require ALJs
to revoke credentials in certain cases involving dangerous drug use.
Specifically, if after a hearing it is proved that the mariner is a
user of, or is addicted to, a dangerous drug, the ALJ is required to
revoke the mariner's credentials.[Footnote 52] However, in these types
of cases, a mariner may enter into a settlement agreement with the
Coast Guard that imposes a sanction other than outright revocation. As
a result, there is an incentive for mariners to settle in drug use
cases.
The Most Common Sanction for Settlement Agreement Cases Was a Stayed
Revocation:
Of the 1,035 cases that resulted in settlement agreements, the majority
of these cases (68 percent) resulted in a sanction of a stayed
revocation, as shown in figure 3. In a stayed revocation, a mariner
temporarily relinquishes his or her credential and is required to
comply with certain conditions before his or her credential is
returned. This sanction may be used in settlement agreement cases where
there is proof of dangerous drug use. In such cases, mariners must
demonstrate cure from addiction to dangerous drugs by completing a
series of requirements laid out in the settlement agreements before
their credential can be returned.[Footnote 53] During this time, the
mariners cannot work in any position requiring mariner credentials. If
the mariners complete the requirements, they are able to get their
credentials back; otherwise, the credentials are forfeited.
Figure 3: Sanction Outcomes of the 1,035 Suspension and Revocation
Cases That Resulted in Settlement Agreements from November 10, 2005,
through September 30, 2008:
[Refer to PDF for image: pie-chart]
Stayed revocation: Coast Guard permanently removes credential if mariner
fails to meet agreed-to condition(s): 68%;
Mitigated penalty with condition(s): Sanction reduced by the mariner
fulfilling agreed-to condition(s): 17%;
Suspension and probation: Coast Guard temporarily withholds the
credential, followed by probation: 6%;
Suspension: Coast Guard temporarily withholds credential for a
specified period of time: 5%;
Probationary suspension: Coast Guard temporarily withholds credential
if the mariner violates probation: 4%.
Source: GAO analysis of Coast Guard ALJ case outcomes.
[End of figure]
The Most Common Sanction Outcome for Decision and Order Cases Was a
Revocation:
Of the 45 cases that resulted in a decision and order by a Coast Guard
ALJ, the most common sanction was revocation (49 percent), as shown in
figure 4 below. In a revocation, mariners are ordered to permanently
forfeit their credentials. Additionally, in 13 percent of the cases,
the ALJ did not order a sanction, meaning that the mariners retained
their credentials.
Figure 4: Disposition of the 45 Decision and Order Cases from November
10, 2005, through September 30, 2008:
[Refer to PDF for image: pie-chart]
Revocation: Coast Guard permanently removes the mariner‘s credential:
49%;
Suspension: Coast Guard temporarily withholds credential for a
specified period of time: 16%;
No sanction: Mariner retains his or her credential: 13%;
Suspension and probation: Coast Guard temporarily withholds the
credential, followed by probation: 11%;
Probationary suspension: Coast Guard temporarily withholds credential
if the mariner violates probation: 7%;
Stayed revocation: Coast Guard permanently removes credential if
mariner fails to meet agreed-to condition(s): 4%.
Source: GAO analysis of Coast Guard ALJ case outcomes.
[End of figure]
Further details on the results of our case file reviews, specifically
regarding sanctions outcomes, can be found in appendix III.
Agency Comments:
In May 2009, we requested comments on a draft of this report from the
Department of Homeland Security and the Coast Guard. The Coast Guard
provided technical comments, which we have incorporated into the
report, as appropriate. In addition to the technical comments, the
Department of Homeland Security and the Coast Guard jointly provided an
official letter for inclusion in this report. In the letter, the
agencies noted that they generally concur with our findings and believe
the report to be both complete and accurate. A copy of this letter can
be seen in appendix IV.
We are sending copies of this report to the Secretary of Homeland
Security, the Commandant of the Coast Guard, the Director of the Office
of Management and Budget, and interested congressional committees. The
report is also available at no charge on the GAO Web site at
[hyperlink, http://www.gao.gov].
If you or your staffs have any questions concerning this report, please
contact me at (202) 512-8777 or caldwells@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this report. Key contributors to this report are
listed in appendix V.
Signed by:
Stephen L. Caldwell:
Director, Homeland Security and Justice Issues:
List of Congressional Requesters:
The Honorable John D. Rockefeller IV:
Chairman:
The Honorable Kay Bailey Hutchison:
Ranking Member:
Committee on Commerce, Science and Transportation:
United States Senate:
The Honorable Bennie G. Thompson:
Chairman:
The Honorable Peter T. King:
Ranking Member:
Committee on Homeland Security:
House of Representatives:
The Honorable Maria Cantwell:
Chairman:
The Honorable Olympia J. Snowe:
Ranking Member:
Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard
Committee on Commerce, Science, and Transportation:
United States Senate:
The Honorable Frank R. Lautenberg:
Chairman:
Subcommittee on Surface Transportation and Merchant Marine
Infrastructure, Safety, and Security:
Committee on Commerce, Science, and Transportation:
United States Senate:
The Honorable Frank LoBiondo:
Ranking Member:
Subcommittee on Coast Guard and Maritime Transportation
Committee on Transportation and Infrastructure:
House of Representatives:
The Honorable Steven C. LaTourette:
House of Representatives:
[End of section]
Appendix I: Comparison of the Structure and Procedures of
Administrative Law Judge Programs at Select Federal Agencies:
This appendix describes the structures and procedures of administrative
law judge (ALJ) programs in three federal agencies to show how they
compare to the Coast Guard's ALJ program. ALJs at each of these
agencies hear cases involving the suspension and revocation of
credentials that are necessary for employment in a particular field.
This appendix (1) describes the types of cases that the ALJs at select
federal agencies hear, (2) summarizes similarities and differences in
the structures and procedures of the ALJ programs at each of the
selected agencies, and (3) presents a more detailed description of the
procedures involved in adjudications at each agency.
Types of Cases Heard by ALJs in Select Federal Agencies:
Like the Coast Guard ALJs, ALJs at the U.S. Department of Agriculture
(USDA), the Securities and Exchange Commission (SEC), and the National
Transportation Safety Board (NTSB) hear cases related to the possible
suspension and revocation of credentials required for employment in a
particular field. Further details on each of these agency's ALJ
programs are provided below.
U.S. Department of Agriculture:
USDA hears cases involving individuals employed with firms that buy and
sell perishable agricultural commodities and dealers and exhibitors of
animals, among other things. For example, within USDA, the Animal and
Plant Health Inspection Service (APHIS) regulates certain animal
dealers and exhibitors, who are required to maintain licenses and meet
certain standards. If a licensee does not meet the necessary standards,
the dealer or exhibitor license may be suspended or revoked. Similarly,
firms that buy and sell perishable agricultural commodities are
regulated by USDA's Agricultural Marketing Service (AMS), and
individuals that are responsibly connected to a firm that violates AMS
regulations may be subject to employment restrictions, such as a
prohibition on employment with another licensee for 1 year. In order to
suspend or revoke an animal dealer or exhibitor license or to impose
employment restrictions on individuals responsibly connected to
violator firms, the responsible USDA component conducts an
investigation, and the Office of General Counsel (OGC) within that
component prepares a complaint and submits it to the Office of
Administrative Law Judges (OALJ). A USDA ALJ then conducts the
administrative proceeding between the agency, represented by the
component OGC, and the licensee, who may also have legal
representation.
Securities and Exchange Commission:
SEC handles cases including those involving individuals employed by
broker-dealers and investment advisers.[Footnote 54] Broker-dealers and
investment advisers are required by federal law to comply with certain
standards in order to, for example, prevent fraud, and if individuals
associated with those firms do not meet or violate those standards, SEC
may, among other sanctions, bar the individuals from associating with
broker-dealers or investment advisers for a specified period of time.
In order to impose this sanction, SEC's Division of Enforcement
conducts an investigation, presents evidence to the commission, and if
the commission decides to issue an order instituting proceedings, an
SEC ALJ adjudicates the claim between the agency, represented by the
SEC Division of Enforcement, and the regulated entity.
National Transportation Safety Board:
NTSB hears cases involving airmen, which includes pilots, air traffic
control tower operators, and mechanics, among others. Airmen are
required to obtain Federal Aviation Administration (FAA) issued
certificates. If FAA determines that the suspension or revocation of an
airman's certificate is necessary for aviation safety and the public
interest, FAA may issue an order suspending or revoking the
certificate. An airman may then appeal the order to an NTSB ALJ, who
conducts the proceeding between the FAA Division of Enforcement and the
certificate holder.
Comparison of Structures and Procedures of Select Agencies' ALJ
Programs:
The structure of each of the agencies (Coast Guard, USDA, SEC, and
NTSB) is similar, in that it contains elements designed to protect ALJs
from undue agency influence, as required by the Administrative
Procedures Act (APA). For example, no ALJ may be subject to the
supervision or direction of an employee engaged in an investigating or
litigating function for the agency, and the agency cannot remove an ALJ
from office without good cause and a hearing before an independent
entity. However, these agencies are illustrative of one primary
structural difference among ALJ programs. Like Coast Guard ALJs and
ALJs at most federal agencies, the ALJs at USDA and SEC are located
within the regulating agency. That is, the ALJs that adjudicate
disputes between the regulating agency and the regulated individual are
located within the regulating agency. In contrast, NTSB ALJs handle the
adjudication of cases arising in another agency, FAA. Under this
structure, which is called a split-enforcement model, the adjudicating
agency is distinct from the regulating agency. That is, the ALJs that
adjudicate disputes between the regulating agency and the regulated
individuals are located within a separate agency.
Because the APA requires certain minimum procedures for these
adjudications, the procedures associated with adjudications in each of
these agencies are similar. For example, all of the agencies'
regulations require the ALJs to consider the convenience of the parties
when scheduling the date and location of hearings, require that ALJs
include certain elements, such as findings of fact and conclusions of
law, in their decisions, and provide a process by which an ALJ may be
disqualified for bias. However, there are differences across the
agencies. For example, the agencies have different procedures governing
discovery, or the exchange of information between parties prior to
adjudication. The Coast Guard and SEC require the parties to exchange
certain information in all cases, whereas for USDA and NTSB
proceedings, all discovery is discretionary, meaning that the ALJs
order the parties to exchange certain information on a case-by-case
basis. For example, the Coast Guard requires the parties to exchange
the names of witnesses, a brief summary of their expected testimonies,
and copies of each document to be introduced; with additional discovery
being discretionary and requiring an ALJ order. SEC requires the agency
to make available for inspection and copying documents collected during
the investigation of the case, with some exceptions, but additional
discovery is discretionary. No such requirements exist for USDA and
NTSB proceedings.
The appeals process also differs across the agencies. The Coast Guard
is the only agency that has a two-step appeals process after the ALJ
decision, with one of the appeals to a separate agency. In this
process, a party may appeal an ALJ decision to the Commandant, and,
subsequently, in certain circumstances, the mariner may appeal the
Commandant's decision to the full board at NTSB.[Footnote 55] At USDA,
a party may appeal an ALJ decision to the judicial officer, an employee
designated by the Secretary of Agriculture to hear such appeals. At
SEC, a party may appeal an ALJ decision to the full commission. At
NTSB, a party may appeal an ALJ decision to the full board. For a more
detailed description of the procedures associated with administrative
procedures at the Coast Guard, NTSB, USDA, and SEC, see table 1 below.
Table 1: Administrative Procedures of the Coast Guard ALJ Program
Compared to Three Other ALJ Programs in the Federal Government:
Topic: Representation of agency in adjudication;
Coast Guard: Coast Guard Investigating Officer;
NTSB: FAA Enforcement Division;
USDA: Office of General Counsel (OGC) within USDA Responsible
Component;
SEC: SEC Division of Enforcement.
Topic: Elements of complaint/order instituting proceedings;
Coast Guard: (1) Type of case; (2) Relevant statute or rule; (3)
Pertinent alleged facts; (4) Proposed sanction;
NTSB: Before issuing order, FAA advises respondent of charges or
reasons for action. FAA order is refiled as complaint; no requirements
in regulations;
USDA: (1) Nature of the proceeding; (2) Identification of the
complainant and respondent; (3) Legal authority and jurisdiction under
which proceeding is instituted; (4) Allegations of fact and provisions
of law that form basis for proceeding; (5) Nature of the relief sought;
SEC: (1) Nature of hearing; (2) Legal authority and jurisdiction under
which hearing will be held; (3) Matters of fact and law to be
considered and determined; (4) Nature of any relief or action sought or
taken; The order instituting proceedings will also specify a period in
which the ALJ will file an initial decision, which must be either 120,
210, or 300 days. The Chief ALJ must file a request with the commission
for an extension.
Topic: Deadline to answer;
Coast Guard: 20 days;
NTSB: 20 days;
USDA: 20 days;
SEC: 20 days, except where a different period is provided by rule or by
order.
Topic: Default procedures for failure to answer complaint/order
initiating proceedings;
Coast Guard: The agency files motion for default, to which respondent
has 20 days to reply. If the respondent fails to reply, the ALJ issues
default order;
NTSB: N/A;
USDA: If the respondent fails to answer complaint, the agency submits
proposed decision, with a motion to adopt. The respondent has 20 days
to file objections. If no meritorious objection filed, the ALJ grants
motion to adopt proposed decision;
SEC: If respondent fails to answer complaint, the ALJ may decide the
case against the respondent upon a consideration of the record,
including the order instituting proceedings.
Topic: Procedure to set aside default order;
Coast Guard: Any time after the respondent has been found in default,
the respondent may present good cause to set aside the default order;
NTSB: N/A;
USDA: Within 30 days of the issuance of the adopted decision, the
respondent may appeal decision;
SEC: The respondent may, within a reasonable time after being found in
default, request to set aside a default order for good cause.
Topic: Extensions of time;
Coast Guard: The ALJ may grant a request for extension to file a
response;
NTSB: The ALJ may grant an extension of time to file any document for
good cause shown. However, no extension of time will be granted for the
filing of a document to which a statutory time limit applies;
USDA: The ALJ may grant an extension of time to file a document for
good cause shown;
SEC: The ALJ may shorten or extend any time limits, for good cause
shown, but may not extend more than 21 days unless the ALJ sets forth
the reasons that a longer period of time is necessary.
Topic: Settlements;
Coast Guard: The ALJ may approve settlement agreement between agency
and respondent, ensuring, for example, that the complaint states an
offense and that the law permits the settlement;
NTSB: N/A;
USDA: The ALJ must approve a settlement submitted in the form of a
proposed decision unless an error is apparent on the face of the
document;
SEC: The commission may approve an offer of settlement proposed by the
respondent and submitted by the litigating entity with its
recommendation to the commission.
Topic: Discovery;
Coast Guard: Unless the ALJ otherwise orders, at least 15 days prior to
the hearing, each party must exchange the names of witnesses and a
brief summary of their expected testimonies and copies of each document
that parties intend to introduce. The ALJ may also order further
discovery, such as depositions, interrogatories, and requests for
documents;
NTSB: At any time before the hearing, the parties may request the
exchange of information, such as witness lists, exhibit lists,
curricula vitae, and bibliographies of expert witnesses. Parties may
also use interrogatories, requests for admissions, and other discovery
tools. If there is a dispute between the parties, the ALJ may issue an
order regarding discovery;
USDA: The ALJ may order parties to furnish outlines of the case or
defense, the underlying legal theories, copies of or a list of
documents that the parties anticipate introducing, and a list of
anticipated witnesses. The ALJ may also order the taking of a
deposition. At least 10 days prior to a hearing conducted by telephone,
unless the hearing is scheduled to begin less than 20 days after the
ALJ's notice stating the time of the hearing, each party must exchange
a written narrative verified statement of the oral direct testimony of
that party, each employee or agent of that party, and each expert
witness that the party will call;
SEC: Unless otherwise ordered, no later than 7 days after service of
the order instituting proceedings, the Enforcement Division must make
available for inspecting and copying documents obtained by the division
prior to the institution of proceedings in connection with the related
investigation, with certain exceptions. The ALJ may also order any
party to furnish appropriate information, such as an outline or summary
of the case or defense, the underlying legal theories, copies and a
list of documents to be introduced, and a list of witnesses, including
a brief summary of their expected testimonies. Each party intending to
call an expert witness must submit information about the witness,
including a brief summary of the expected testimony, statement of the
expert's qualifications, listing of other proceedings at which the
expert has given testimony, and a list of the expert's publications.
The ALJ may also order the taking of depositions.
Topic: Expedited procedure;
Coast Guard: Coast Guard may suspend and seize a credential without a
hearing if the mariner performs a safety-sensitive function on a vessel
and there is probable cause to believe that he has committed certain
violations. Agency must immediately file a complaint, and the ALJ must
conduct a pre-hearing conference as early as practicable, at which time
the respondent enters his answer. As soon as practicable after the
conference but no later than 30 days after the temporary suspension,
the ALJ holds a hearing, and the ALJ must issue the decision 45 days or
less after the temporary suspension. At any time, the respondent may
request that the credential be returned on the grounds that the agency
lacked probable cause to suspend the credential. At any time, the
respondent may move to discontinue the expedited process and continue
under standard procedure;
NTSB: FAA may issue an emergency order, suspending a certificate
immediately, upon determination that an emergency exists and safety in
air commerce or air transportation requires the immediate suspension of
the certificate. Respondent may file appeal within 10 days. FAA must
serve complaint within 3 days of appeal. The respondent must file
answer within 5 days of complaint. The hearing must be held no later
than 30 days after the appeal was received, and oral decision is issued
at close of the hearing. The respondent may appeal the ALJ's initial
decision to the board within 2 days after decision. The respondent may
also, within 2 days after the date of receipt of an emergency order,
file a petition for review of the FAA determination that an emergency
exists. The ALJ must decide petition within 5 days, and if the ALJ
grants petition, respondent retains certificate until completion of
appeal. Under certain circumstances, respondent may waive expedited
proceedings;
USDA: N/A;
SEC: Expedited procedures do not apply to cases involving persons
associated with broker-dealers and investment advisers.
Topic: Hearing;
Coast Guard: The ALJ schedules date, time, and place of hearing, with
due regard for the convenience of the parties;
NTSB: The ALJ sets reasonable date, time, and place for hearing. In
setting date, due regard must be given to the parties' discovery needs.
In setting the place, due regard must be given to the location of the
subject incident, the convenience of the parties and witnesses, and the
conservation of agency funds;
USDA: The ALJ sets time, place, and manner for hearing with due regard
for the public interest and convenience and necessity of parties. The
ALJ will conduct hearing by audio-visual telecommunication (AVT) unless
the judge determines that conducting the hearing by personal attendance
of any individual is necessary to prevent prejudice to a party, is
necessary because of a disability of any individual, or would cost less
than conducting the hearing by AVT. The ALJ may conduct the hearing by
telephone if it would provide a full and fair evidentiary hearing,
would not prejudice any party, and would cost less than conducting a
hearing by AVT or personal attendance. Within 10 days after the ALJ
issues notice of hearing, any party may request that the ALJ reconsider
the manner in which the hearing is to be conducted;
SEC: The ALJ sets time and place for hearing with due regard for the
public interest and the convenience and necessity of the parties. The
order instituting proceedings will specify a time period in which an
initial decision must be filed, and the order instituting proceedings
will also state the period in which the hearing will take place. Under
the 120-day deadline, the hearing will take place within approximately
1 month; under the 210-day deadline, the hearing will take place within
approximately 2 1/2 months; under the 300-day deadline, the hearing
will take place within approximately 4 months.
Topic: Decision;
Coast Guard: ALJ decision must include a finding on each material issue
of fact and conclusion of law, as well as the basis for each finding;
the disposition of the case, including any appropriate order; the date
upon which the decision is effective, and statement of the respondent's
right to appeal. The ALJ may issue an oral decision at the close of the
hearing, in which case ALJ must state the issues in the case and make
clear, on the record, the findings of fact and conclusions of law;
NTSB: ALJ decision must include findings and conclusions upon all
material issues of fact, credibility of witnesses, law and discretion,
as well as the reasons for each finding and conclusion. The ALJ may
issue an oral decision at the close of the hearing;
USDA: The ALJ may issue a decision orally at the close of the hearing
or within a reasonable time after the closing of the hearing, and a
copy of the decision --written or oral--must be furnished to the
parties;
SEC: ALJ initial decision must include findings and conclusions, and
the basis for the findings and conclusions, as to all the material
issues of fact, law, or discretion, and the appropriate order,
sanction, relief or denial of relief. Decision must also state the
respondent's right to appeal, as well as the time period, not to exceed
21 days, within which an appeal may be filed.
Topic: Review of a ruling prior to close of proceeding;
Coast Guard: The Commandant may not review a ruling prior to the close
of the proceeding;
NTSB: ALJ rulings prior to close of proceeding may not be appealed
except in extraordinary circumstances and with the consent of the ALJ.
Such appeals may only be allowed if the ALJ finds that it is necessary
to prevent substantial detriment to the public interest or undue
prejudice to a party;
USDA: The ALJ may request that the judicial officer make a
determination on a motion, request, objection, or other question;
SEC: The ALJ may request that the commission review a ruling prior to
the close of the proceeding if the ruling would compel testimony of
commission members, officers, or employees or the production of
documentary evidence in their custody or if the ALJ believes that the
ruling involves a controlling question of law as to which there is
substantial ground for difference of opinion and an immediate review of
the order may materially advance the completion of the proceeding. The
commission will grant a petition to review such an order only in
extraordinary circumstances. The commission may, at any time, on its
own initiative, direct that any matter be submitted to it for review.
Topic: Disqualification of ALJ;
Coast Guard: The ALJ may disqualify himself at any time. Until the
filing of the decision, any party may request that the ALJ disqualify
himself for personal bias or other valid cause. If the ALJ does not
disqualify himself, the moving party may appeal to the Commandant once
the hearing has concluded;
NTSB: The ALJ must withdraw from a proceeding if, at any time, he deems
himself disqualified. If the ALJ does not withdraw, and if an appeal
from the ALJ's initial decision is filed, the board will, if requested
by the party, determine whether the ALJ should have withdrawn;
USDA: No ALJ can be assigned to serve in any proceeding that has any
pecuniary interest in any matter or business involved in the
proceeding, is related within the third degree by blood or marriage to
any party, or has any conflict of interest that might impair the ALJ's
objectivity. Any party may request that the ALJ withdraw from the
proceeding because of an alleged disqualifying reason. The ALJ may
either rule on the request or request that the Secretary decide the
issue;
SEC: The ALJ must withdraw if he believes himself to be disqualified
from considering a matter. Any party that has a reasonable, good faith
basis to believe that an ALJ has a personal bias or is otherwise
disqualified from hearing a case may make a request to the ALJ that the
ALJ withdraw.
Topic: Entity deciding appeals of ALJ decisions;
Coast Guard: The ALJ decision may be appealed to the Commandant of the
Coast Guard; The decision of the Commandant may be appealed to NTSB;
NTSB: Full board;
USDA: USDA judicial officer;
SEC: Full commission.
Topic: Deadline to appeal;
Coast Guard: To Commandant: 30 days; To NTSB: 10 days;
NTSB: 10 days;
USDA: 30 days;
SEC: Time period specified in initial decision, not to exceed 21 days,
unless a party has filed a motion to correct a manifest error in the
initial decision, in which case a party has 21 days from the date of
the ALJ's order resolving the motion to correct.
Topic: Issues to appeal;
Coast Guard: To Commandant: (1) Whether each finding of fact is
supported by substantial evidence; (2) Whether each conclusion of law
accords with applicable law, precedent, and policy; (3) Whether the ALJ
abused his discretion; (4) The ALJ's denial of a request for
disqualification; To NTSB, in a case in which the credential was
suspended or revoked; (1) Whether a finding of material fact is
erroneous; (2) Whether a necessary legal conclusion is without
governing precedent or is contrary to law or precedent; (3) A
substantial and important question of law, policy, or discretion is
involved; (4) Whether a prejudicial procedural error has occurred;
NTSB: (1) Whether the findings of fact are each supported by a
preponderance of reliable, probative, and substantial evidence; (2)
Whether conclusions are made in accordance with law, precedent, and
policy; (3) Whether the questions on appeal are substantial; (4)
Whether prejudicial procedural errors occurred;
USDA: The decision, any part of the decision, or any ruling by the ALJ;
SEC: Any issue.
Topic: Discretion to grant review;
Coast Guard: To Commandant: No; To NTSB: No;
NTSB: No;
USDA: No;
SEC: Yes; the commission has discretion in determining whether to grant
review. The commission considers: whether the petition makes a
reasonable showing that a (1) a prejudicial error was committed in the
conduct of the proceeding, or; (2) the decision embodies a finding or
conclusion of material fact that is clearly erroneous, a conclusion of
law that is erroneous, or an exercise of discretion or decision of law
or policy that is important and that the commission should review.
Topic: Oral argument;
Coast Guard: To Commandant: No; To NTSB: Each party may request to
present an oral argument, and NTSB will grant the request for good
cause;
NTSB: NTSB may order oral argument, in response to a request or on its
own initiative, if NTSB determines that oral argument is necessary;
USDA: Each party may request to present an oral argument, and the
judicial officer may grant, deny, or limit any request;
SEC: Each party may request to present oral argument, and the
commission may, in response to a request or on its own initiative,
order oral argument with respect to any matter. The commission will
order oral argument if the presentation of facts and legal arguments in
the briefs and record and the decisional process would be significantly
aided by oral argument. Motions for oral argument on whether to affirm
part or all of the initial decision of an ALJ will be granted unless
exceptional circumstances make oral argument impractical or
inadvisable.
Topic: Review on own initiative;
Coast Guard: The Commandant may call up for review any decision of an
ALJ in which there has been a finding that an allegation was proved;
NTSB: NTSB may not review an ALJ decision on its own initiative;
USDA: The judicial officer may not review an ALJ decision on his own
initiative;
SEC: The commission may, on its own initiative, order the review of any
initial decision, or any portion of an initial decision, within 21 days
after the end of the period established for filing an appeal.
Topic: Reopening proceedings/requests for reconsideration;
Coast Guard: Within 30 days after the close of the hearing, any party
may request to reopen the proceeding. The ALJ may reopen the proceeding
upon belief that any change in law or fact or the public interest
warrants reopening it. Within 3 years after a proceeding has resulted
in revocation of a credential, a respondent may request that the
proceeding be reopened to present evidence that the order of revocation
is no longer valid and that the issuance of a new credential is
compatible with the requirement of good discipline and safety at sea.
At any time, a party can request to reopen a case if the order rests on
a specified conviction that has been unconditionally set aside by a
court;
NTSB: Before filing an appeal to the board, a party may request a
reconsideration of the ALJ's decision. Within 30 days after the board's
order on appeal, a party may petition the board for rehearing,
reargument, reconsideration, or modification of the board order on
appeal;
USDA: Within the period of time fixed by the ALJ, any party may propose
corrections to the transcript or recording of the hearing, and as soon
as practicable after the close of the hearing, the ALJ must issue an
order making any corrections to the transcript or recording that the
ALJs finds are warranted. A party may request to reopen a hearing to
take further evidence at any time prior to the issuance of the decision
of the judicial officer. Within 10 days after the judicial officer's
decision, a party may petition to rehear or reargue the proceeding or
to reconsider the decision of the judicial officer;
SEC: Within 10 days of the initial decision, a party may file a motion
to correct a manifest error of fact in the initial decision. A brief in
opposition may be filed within 5 days of a motion to correct, and the
ALJ must rule on the motion within 20 days of the filing of the brief
in opposition. Within 10 days after the commission's order, a party may
request a reconsideration of the commission's decision.
Topic: Judicial review;
Coast Guard: A respondent or the Coast Guard may seek judicial review
of NTSB's decision;
NTSB: A party may seek judicial review of a final order of the board;
USDA: A respondent may seek judicial review of the final decision of
the judicial officer on appeal;
SEC: A respondent may seek judicial review of the final order of the
commission.
Source: GAO analysis based on a review of pertinent agency regulations.
Note: For purposes of this table, "board" refers to the National
Transportation Safety Board, and "commission" refers to the Securities
and Exchange Commission.
[End of table]
[End of section]
Appendix II: Objectives, Scope, and Methodology:
This report addresses three objectives:
* To what extent does the Coast Guard's Administrative Law Judge (ALJ)
Program contain elements designed to foster the decisional independence
of ALJs?
* To what extent does the Coast Guard's ALJ Program include protections
for mariners and do complaints and decisions include elements required
by the program's regulations?
* What is the disposition of Coast Guard ALJ suspension and revocation
cases that were opened and closed from November 10, 2005, through
September 30, 2008?
To address the first and second objectives, we analyzed the statutory
provisions of the Administrative Procedure Act (APA), the Office of
Personnel Management (OPM) regulations on administrative law judges,
and Coast Guard regulations and policies and procedures governing
administrative actions. We also interviewed Coast Guard Office of
Administrative Law Judges (OALJ) officials to discuss Coast Guard
administrative procedures and ALJ hearing process. Through reviews of
the APA and pertinent OPM and Coast Guard regulations, we determined
what structural elements are in place that are designed to foster the
ALJs' decisional independence. We did not, however, assess whether the
structural elements are effective at ensuring the ALJs' decisional
independence.
To address the second and third objectives, we initially obtained data
from the Coast Guard ALJ program's case tracking database. Through
discussions with knowledgeable officials from OALJ, we determined that
the database was not designed or sufficiently reliable for addressing
our specific objectives. In particular, the database was designed to
function solely as a case tracking system and was not intended to
capture the type of information that we were seeking. For example,
outcomes were not categorized in a way that was consistent with how we
intended to report them. As a result, we performed a case file review
of open and closed mariner cases that had been completed in recent
years. Due to a change in policy regarding the disposition of cases
involving convictions for violations of drug laws effective November
10, 2005, we limited the time frame for our case file reviews to those
cases that were opened and closed from November 10, 2005, through
September 30, 2008. We used September 30, 2008, as the ending date for
our case file selections because we began our review of cases in
October 2008. This resulted in a review of 1,675 cases for our first
objective. Then, to address the second objective, we selected a random,
probability sample of 181 of the 1,675 closed cases to determine the
extent to which certain mariner protections were being followed. In
particular, we reviewed these cases to determine whether specific
protections identified in Coast Guard procedures were documented in the
mariners' case files.
To address the third objective, an analyst reviewed all 1,675 mariner
case files to determine the procedural and sanction-based outcomes
associated with the cases. To verify the outcomes were recorded
accurately, a pair of independent analysts subsequently selected a
random sample of 198 cases (from the population of 1,675 cases) and
recorded their outcomes. Then, this same pair of analysts compared
their results with the originally recorded outcomes for the same 198
cases. Based on the results of this comparison, we estimate that the
error rate in recording case outcomes for the population (1,675) is 2
percent; and we are 95 percent confident that the actual error rate is
less than or equal to 5 percent. Therefore, we conclude that the data
generated from our analysis are sufficiently reliable for the purposes
of our review.
In conducting a comparison of the structure and procedures of the Coast
Guard's ALJ program to those of the ALJ programs of the three other
federal agencies--the U.S. Department of Agriculture, U.S. Securities
and Exchange Commission, and the National Transportation Safety Board-
-we reviewed the regulations governing each of the programs and
interviewed officials at each of the agencies. We selected these
agencies because their ALJs hear cases involving the possible
suspension or revocation of credentials necessary for employment in a
particular field. We did not perform a case file review to determine
whether the procedures were being followed or evaluate the
effectiveness of their adjudicatory processes. Rather, we summarized
the structures and procedures, highlighting similarities and
differences between the agencies' programs to provide context compared
to the Coast Guard's ALJ program.
We also conducted outreach efforts to several mariner associations--to
include American Maritime Officers; the Inland Boatman's Union; the
Marine Engineers Beneficial Association; the International Organization
of Master's, Mates, & Pilots; Seafarers International Union; and the
U.S. Merchant Marine Academy--and attorneys to obtain their
perspectives on Coast Guard structure and procedures, administrative
actions, and ALJ hearing process. We identified mariner associations
and attorneys through Internet searches and referrals obtained from
interviews and agency contacts. We focused our outreach efforts on
those associations and attorneys that represented or provided legal
support to mariners who experienced a Coast Guard administrative
action. Because the input we received from the various mariner
associations and attorneys was varied and did not have a consistent
message, we were not able to draw any conclusions from their input and
so we did not include their comments in the report. This outreach
effort, however, did provide us with important contextual information
how mariner associations and attorneys perceived the Coast Guard's ALJ
program.
We conducted this performance audit from May 2008 to June 2009 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
[End of section]
Appendix III: Details Regarding the Sanction Outcomes of Mariners'
Suspension and Revocation Cases:
The purpose of this appendix is to provide additional analyses
regarding the sanction outcomes of all suspension and revocation cases
that were opened and closed from November 10, 2005, through September
30, 2008. Specifically, in this appendix, we first provide additional
details on the disposition of sanction outcomes for all 1,675 cases,
and then we provide additional details on the sanction outcomes for two
subsets (or types of procedural outcomes) cases--admissions and
defaults.
Sanction Outcomes of All Cases Reviewed:
We reviewed case files from the total universe of 1,675 suspension and
revocation cases that were opened and closed and found that 705 cases
(42 percent) resulted in stayed revocations in which mariners agreed to
voluntarily relinquish their credentials pending completion of certain
conditions. In 205 cases (12 percent), the sanction was revocation in
which the mariner's credential is permanently retracted by the Coast
Guard. In 181 cases (11 percent) the sanction was a mitigated penalty
with condition, in which the penalty was reduced upon the mariner
fulfilling a stipulated condition. Figure 5 shows the range of sanction
outcomes for all 1,675 cases reviewed.
Figure 5: Sanction Outcomes of the 1,675 Suspension and Revocation
Cases Opened and Closed from November 10, 2005, through September 30,
2008:
[Refer to PDF for image: pie-chart]
Stayed revocation: Coast Guard permanently removes credential if
mariner fails to meet agreed-to condition(s): 42%;
Revocation: Coast Guard permanently removes the mariner‘s credential:
12%;
Mitigated penalty with condition(s): Sanction reduced by the mariner
fulfilling agreed-to condition(s): 11%;
Voluntary surrender: Mariner voluntarily relinquishes the credential
permanently: 9%;
Suspension: Coast Guard temporarily withholds credential for a
specified period of time: 9%;
No sanction: Mariner retains his or her credential: 9%;
Suspension and probation: Coast Guard temporarily withholds the
credential, followed by probation: 5%;
Probationary suspension: Coast Guard temporarily withholds credential
if the mariner violates probation: 3%;
Admonition: Coast Guard issues letter of warning to mariner: 1%.
Source: GAO analysis of Coast Guard ALJ case outcomes.
Note: Percentages do not add to 100 due to rounding.
[End of figure]
Sanction Outcomes of Admissions Cases:
Our review of the suspension and revocation cases that were opened and
closed from November 10, 2005, through September 30, 2008, showed that
there were 116 cases in which mariners admitted to the allegations.
Figure 6 shows the sanction outcomes by percentage of admissions cases.
For example, the majority (65 percent) of admissions cases resulted in
mariners receiving a suspension, in which their credentials were
temporarily withheld by the Coast Guard for a specified period of time.
Figure 6: Sanction Outcomes of 116 Admissions Cases Opened and Closed
from November 10, 2005, through September 30, 2008:
[Refer to PDF for image: pie-chart]
Suspension: Coast Guard temporarily withholds credential for a
specified period of time: 65%;
Revocation: Coast Guard permanently removes the mariner‘s credential:
19%;
Suspension and probation: Coast Guard temporarily withholds the
credential, followed by probation: 9%;
Probationary suspension: Coast Guard temporarily withholds credential
if the mariner violates probation: 7%.
Source: GAO analysis of Coast Guard ALJ case outcomes.
[End of figure]
Sanction Outcomes of Default Cases:
Our review of the 1,675 suspension and revocation cases that were
opened and closed from November 10, 2005, through September 30, 2008,
showed that there were 177 default cases, in which a mariner did not
respond to a complaint sent by the Coast Guard or appear at a
conference or hearing. Figure 7 shows the sanction outcomes by
percentage of default cases. For example, the majority (91 percent) of
default cases resulted in mariners having their credentials revoked.
Under this sanction, a mariner's credentials are permanently retracted
by the Coast Guard.
Figure 7: Sanction Outcomes of the 177 Default Cases Closed from
November 10, 2005, through September 30, 2008:
[Refer to PDF for image: pie-chart]
Revocation: Coast Guard permanently removes the mariner‘s credential:
91%;
Suspension: Coast Guard temporarily withholds credential for a
specified period of time: 7%;
Suspension and probation: Coast Guard temporary withholds the
credential, followed by probation: 2%;
Mitigated penalty with condition(s): Sanction reduced by the mariner
fulfilling agreed-to condition(s): 1%.
Source: GAO analysis of Coast Guard ALJ case outcomes.
[End of figure]
[End of section]
Appendix IV: Comments from the Department of Homeland Security:
U.S. Department of Homeland Security:
Washington, DC 20528:
[hyperlink, http://www.dhs.gov]
June 2, 2009:
Mr. Stephen L. Caldwell:
Director, Homeland Security and Justice:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Caldwell:
RE: Draft Report GAO-09-489, Coast Guard: Administrative Law Judge
Program Contains Elements Designed to Foster Judges' Independence and
Mariner Protections Assessed Are Being Followed (GAO Job Code 440725)
The Department of Homeland Security, particularly the Coast Guard,
appreciates the opportunity to review and comment on the U.S.
Government Accountability Office's (GAO's) draft report referenced
above. Coast Guard officials generally concur with the findings and
believe the report is both complete and accurate. There are no
recommendations requiring attention. The program works as intended-
mariners' rights are protected as noted by GAO while safety at sea is
promoted.
GAO found that the Administrative Law Judge Program contains elements
designed to foster the decisional independence of its judges. These
elements include Office of Personnel Management and Coast Guard
regulations which GAO found were being followed. GAO also found that
the program contains protections for mariners and that regulations for
protecting those interests are being followed.
Coast Guard officials noted that GAO audit team members examined nearly
1,700 case files as part of the review and appreciated their
thoroughness.
Sincerely,
Signed by:
Jerald E. Levine:
Director:
Departmental GAO/OIG Liaison Office:
[End of section]
Appendix V: GAO Contact and Staff Acknowledgments:
GAO Contact:
Stephen L. Caldwell (202) 512-8777 or caldwells@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Christopher Conrad, Assistant
Director, and Josh Diosomito, Analyst-in-Charge, managed this review.
Michael Blinde, Julian King, and Jeff Jensen made significant
contributions to the work. Tracey King provided legal and regulatory
support; Lara Kaskie provided assistance in report preparation; William
Bates and Stan Kostyla assisted with design, methodology, and data
analysis; and Lydia Araya helped develop the report's graphics.
[End of section]
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594T]. Washington, D.C.: Apr. 1, 2003.
Coast Guard: Comprehensive Blueprint Needed to Balance and Monitor
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[End of section]
Footnotes:
[1] Suspension is the temporary forfeiture of a merchant mariner's
credential, during which time the mariner is prohibited from employment
that would require the credential. Revocation is the permanent
relinquishment of the merchant mariner's credential, although in
certain circumstances, a mariner whose credential has been revoked may
apply to receive a new credential.
[2] In addition to the approximately 600 suspension and revocation
cases Coast Guard ALJs hear each year, the ALJs hear other types of
cases. From 2006 through 2008, Coast Guard ALJs annually adjudicated
between 100 and 200 Transportation Security Administration (TSA) cases,
between 55 and 75 National Oceanic and Atmospheric Administration
(NOAA) cases, and between 14 and 25 Bureau of Industrial Security
cases.
[3] Concurrent with our review, the Department of Homeland Security's
Office of Inspector General is reviewing specific allegations of bias
among the Coast Guard ALJs and will be issuing its own report on this
issue later this year.
[4] Procedural outcomes include courses of action, such as a negotiated
settlement between a mariner and the Coast Guard, or a decision and
order issued by an ALJ as a result of a hearing. A decision presents
findings of law and fact, while an order states the sanction, if any,
imposed against the mariner.
[5] Broker-dealers are entities engaged in buying and selling
securities, either for their own accounts or for the accounts of
others.
[6] A purser is generally responsible for general administration and
money-related tasks on a vessel.
[7] On March 16, 2009, the Coast Guard issued a rule consolidating the
four mariner credentialing documents into one credential, the Merchant
Mariner Credential, effective April 15, 2009. 74 Fed. Reg. 11,196 (Mar.
16, 2009).
[8] 46 U.S.C. § 7703.
[9] 46 U.S.C. § 7704. Decisions of the Commandant on appeal have
established precedent regarding the requirements of a settlement
agreement to ensure that the mariner has been cured. Settlement
agreements must, for example, require the successful completion of a
drug rehabilitation program followed by a complete non-association with
drugs for a minimum of 1 year, which includes participation in a drug
abuse monitoring program. See Coast Guard v. Sweeney, Appeal No. 2535
(Feb. 18, 1992).
[10] 46 C.F.R. § 5.101(a).
[11] According to Coast Guard ALJ officials, an ALJ accepted a position
to be assigned to the Houston sector, effective May 2009.
[12] 33 C.F.R. § 20.310.
[13] 33 C.F.R. § 20.801.
[14] 33 C.F.R. § 20.701.
[15] 33 C.F.R. § 20.310(a).
[16] A decision presents findings of law and fact, while an order
states the sanction, if any, imposed against the mariner.
[17] 33 C.F.R. § 20.902.
[18] 33 C.F.R. § 20.502.
[19] 46 C.F.R. § 5.203. While a voluntary surrender is a permanent
relinquishment of credentials, a mariner may also voluntarily deposit
his or her credential in any case where there is evidence of mental or
physical incompetence. The Coast Guard may accept such a deposit on the
basis of a written agreement that specifies the conditions upon which
the Coast Guard will return the credential. 46 C.F.R. § 5.201.
[20] Other circumstances in which the Coast Guard may temporarily seize
a credential before holding a hearing include when a mariner performs a
safety-sensitive function on a vessel and there is probable cause to
believe that the mariner has been convicted of an offense that would
prevent the issuance or renewal of the credential or, within 3 years
prior to the start of the proceeding, has been convicted of certain
driving-related offenses.
[21] 33 C.F.R. §§ 20.1201, 20.1207, 20.1208.
[22] The parties may appeal the following issues: whether each finding
of fact is supported by substantial evidence; whether each conclusion
of law accords with applicable law, precedent, and public policy;
whether the ALJ abused his or her discretion; and the ALJ's denial of a
motion for disqualification. 33 C.F.R. § 20.1001.
[23] 49 U.S.C. § 1153. The grounds for appeal to NTSB are that a
finding of a material fact is erroneous; a necessary legal conclusion
is without governing precedent or is contrary to law or precedent; a
substantial and important question of law, policy, or discretion is
involved; or a procedural error that harmed the interests of the
respondent has occurred. 49 C.F.R. § 825.15.
[24] There have been multiple decisions discussing whether a mariner
may seek judicial review of an ALJ decision if he or she does not
appeal the ALJ decision to the Commandant and whether a mariner may
seek judicial review of the Commandant's decision if he or she does not
appeal the Commandant's decision to NTSB, and the issue continues to be
litigated. See Kinneary v. New York, 358 F. Supp. 2d 356 (S.D.N.Y.
2005) (stating that the respondent would not have been able to seek
judicial review of the Commandant's decision, but rather that judicial
review of final agency action would be from an order of NTSB);
Blackwell v. United States, 586 F. Supp. 947 (S.D. Fla. 1984) (stating
that because the respondent did not file a timely appeal with NTSB, he
had failed to exhaust his administrative remedies); but see Dresser v.
Ingolia, 2009 WL 139662 (5th Cir. 2009) (suggesting that, based on
Coast Guard regulations providing that an ALJ's decision becomes final
action of the Coast Guard 30 days after the date of its issuance,
unless appealed to the Commandant, the ALJ's decision would have been
final agency action and thus subject to judicial review if the
respondent had not appealed the decision to the Commandant); McDonald
v. United States, 2005 WL 1571215 (S.D. Tex. 2005) (holding that
because the Vice Commandant's decision is final agency action, the
respondent may seek judicial review of the decision without appealing
to NTSB).
[25] 5 C.F.R. § 930.206.
[26] 5 C.F.R. § 930.205.
[27] GAO plans to issue another report regarding ALJ program
management, hiring, and performance management later this year.
[28] 5 U.S.C. § 7521.
[29] The APA provides that an ALJ may not engage in communications
relevant to the merits of the proceeding with interested parties
outside of the agency. 5 U.S.C. § 557(d)(1). The APA also provides that
an ALJ may not consult a person or party on a fact in issue, unless the
ALJ provides notice and opportunity for all parties to participate. 5
U.S.C. § 554(d)(1).
[30] 33 C.F.R. § 20.206(a).
[31] 33 C.F.R. § 20.206(b).
[32] 33 C.F.R. § 20.204.
[33] 5 U.S.C. § 554-557.
[34] 33 C.F.R. § 20.307.
[35] 33 C.F.R. § 20.902(a).
[36] 33 C.F.R. § 20.1001. A party may request that an ALJ disqualify
himself or herself for personal bias or other valid cause. If the ALJ
denies the request, the party may appeal that decision to the
Commandant.
[37] 49 U.S.C. § 1133.
[38] 49 C.F.R. § 825.15.
[39] 49 U.S.C. § 1153. There have been multiple decisions discussing
whether a mariner may seek judicial review of an ALJ decision if he or
she does not appeal the ALJ decision to the Commandant and whether a
mariner may seek judicial review of the Commandant's decision if he or
she does not appeal the Commandant's decision to NTSB, and the issue
continues to be litigated. See note 24 for more information.
[40] In each of these three cases, the Commandant overturned the ALJ
decision and remanded the case to the ALJ for further proceedings
consistent with the Commandant's decision.
[41] In two of these three cases, the Commandant overturned the ALJ
decision and remanded the case to the ALJ for further proceedings. In
the third case, the Commandant overturned the ALJ decision and
dismissed the case.
[42] 46 U.S.C § 7702.
[43] 33 C.F.R. § 20.904(f).
[44] 33 C.F.R. § 20.310(e).
[45] 46 C.F.R. § 5.707(a). A mariner whose credential was revoked as a
result of a finding that the mariner was a user of, or addicted, to a
dangerous drug or was convicted of a dangerous drug law is not eligible
to apply for a temporary credential during the time an appeal to the
Commandant or NTSB is pending. 46 C.F.R. §§ 5.707, 5.715.
[46] 46 C.F.R. § 5.715.
[47] 33 C.F.R. § 20.307(a).
[48] 33 C.F.R. § 20.304(c). A certificate of service is a document
signed by the investigative officer stating that he or she has served
the complaint on the mariner. The officer may serve a complaint by
personal service, certified mail with return receipt, or by express
courier service with receipt capability.
[49] 33 C.F.R. § 20.902(a).
[50] For all estimates of 100 percent, we are 95 percent confident that
the actual compliance rate is between 98.4 percent and 100 percent.
[51] Although 181 certificates of service were accounted for, we
identified nine instances in which the certificate of service was not
properly completed in that, for example, a box was left unchecked. We
are 95 percent confident that the actual compliance rate for case files
that contain a completed certificate of service is between 90 percent
and 97.6 percent.
[52] 46 U.S.C. § 7704(c).
[53] In drug use cases, although a mariner may enter into a settlement
agreement that imposes a sanction less than revocation, the mariner
must demonstrate that he or she is cured before his or her credential
is reinstated. As noted above, Commandant precedent describes the
conditions that are to be included in such a settlement agreement, such
as a drug rehabilitation program and a period of non-association with
drugs, in order to ensure that the mariner is cured.
[54] Broker-dealers are entities engaged in buying and selling
securities, either for their own accounts or for the accounts of
others. In addition to associated persons of broker-dealers and
investment advisers, the Commission has adjudicatory jurisdiction over
the broker-dealers and advisers themselves, investment companies,
transfer agents, municipal security dealers, and government security
dealers, as well as their associated persons, and disciplinary
jurisdiction over those who appear and practice before the Commission,
such as accountants and attorneys.
[55] The National Transportation Safety Board has five members,
appointed by the President and confirmed by the Senate to serve 5-year
terms.
[End of section]
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