[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
          REVIEWING THE COAST GUARD'S ADMINISTRATIVE LAW SYSTEM

=======================================================================

                                (110-64)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                COAST GUARD AND MARITIME TRANSPORTATION

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 31, 2007

                               __________


                       Printed for the use of the
             Committee on Transportation and Infrastructure


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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

NICK J. RAHALL, II, West Virginia    JOHN L. MICA, Florida
PETER A. DeFAZIO, Oregon             DON YOUNG, Alaska
JERRY F. COSTELLO, Illinois          THOMAS E. PETRI, Wisconsin
ELEANOR HOLMES NORTON, District of   HOWARD COBLE, North Carolina
Columbia                             JOHN J. DUNCAN, Jr., Tennessee
JERROLD NADLER, New York             WAYNE T. GILCHREST, Maryland
CORRINE BROWN, Florida               VERNON J. EHLERS, Michigan
BOB FILNER, California               STEVEN C. LaTOURETTE, Ohio
EDDIE BERNICE JOHNSON, Texas         RICHARD H. BAKER, Louisiana
GENE TAYLOR, Mississippi             FRANK A. LoBIONDO, New Jersey
ELIJAH E. CUMMINGS, Maryland         JERRY MORAN, Kansas
ELLEN O. TAUSCHER, California        GARY G. MILLER, California
LEONARD L. BOSWELL, Iowa             ROBIN HAYES, North Carolina
TIM HOLDEN, Pennsylvania             HENRY E. BROWN, Jr., South 
BRIAN BAIRD, Washington              Carolina
RICK LARSEN, Washington              TIMOTHY V. JOHNSON, Illinois
MICHAEL E. CAPUANO, Massachusetts    TODD RUSSELL PLATTS, Pennsylvania
JULIA CARSON, Indiana                SAM GRAVES, Missouri
TIMOTHY H. BISHOP, New York          BILL SHUSTER, Pennsylvania
MICHAEL H. MICHAUD, Maine            JOHN BOOZMAN, Arkansas
BRIAN HIGGINS, New York              SHELLEY MOORE CAPITO, West 
RUSS CARNAHAN, Missouri              Virginia
JOHN T. SALAZAR, Colorado            JIM GERLACH, Pennsylvania
GRACE F. NAPOLITANO, California      MARIO DIAZ-BALART, Florida
DANIEL LIPINSKI, Illinois            CHARLES W. DENT, Pennsylvania
DORIS O. MATSUI, California          TED POE, Texas
NICK LAMPSON, Texas                  DAVID G. REICHERT, Washington
ZACHARY T. SPACE, Ohio               CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii              JOHN R. `RANDY' KUHL, Jr., New 
BRUCE L. BRALEY, Iowa                York
JASON ALTMIRE, Pennsylvania          LYNN A WESTMORELAND, Georgia
TIMOTHY J. WALZ, Minnesota           CHARLES W. BOUSTANY, Jr., 
HEATH SHULER, North Carolina         Louisiana
MICHAEL A. ARCURI, New York          JEAN SCHMIDT, Ohio
HARRY E. MITCHELL, Arizona           CANDICE S. MILLER, Michigan
CHRISTOPHER P. CARNEY, Pennsylvania  THELMA D. DRAKE, Virginia
JOHN J. HALL, New York               MARY FALLIN, Oklahoma
STEVE KAGEN, Wisconsin               VERN BUCHANAN, Florida
STEVE COHEN, Tennessee
JERRY McNERNEY, California
VACANCY

                                  (ii)

  
?

        SUBCOMMITTEE ON COAST GUARD AND MARITIME TRANSPORTATION

                 ELIJAH E. CUMMINGS, Maryland, Chairman

GENE TAYLOR, Mississippi             STEVEN C. LaTOURETTE, Ohio
RICK LARSEN, Washington              DON YOUNG, Alaska
CORRINE BROWN, Florida               HOWARD COBLE, North Carolina
BRIAN HIGGINS, New York              WAYNE T. GILCHREST, Maryland
BRIAN BAIRD, Washington              FRANK A. LoBIONDO, New Jersey
TIMOTHY H. BISHOP, New York          TED POE, Texas
VACANCY                              JOHN L. MICA, Florida
JAMES L. OBERSTAR, Minnesota           (Ex Officio)
  (Ex Officio)

                                 (iii)

                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................    vi

                               TESTIMONY

Dash, Professor Abraham, Professor Emeritus, University of 
  Maryland School of Law.........................................     8
Denson, Judge Rosemary, Former Coast Guard Administrative Law 
  Judge..........................................................     8
Fitzpatrick, Judge Peter, Former Coast Guard Administrative Law 
  Judge..........................................................     8
Hewig, William, Attorney at Law and Principal, Kopelman and 
  Paige, P.C. Boston, Massachusetts..............................     8
Jones, Hon. Walter B., a Representative in Congress from the 
  State of North Carolina........................................     6
Massey, Judge Jeffie, Former Coast Guard Administrative Law Judge     8
Salerno, Rear Admiral Brian, Director of Inspection and 
  Compliance, United States Coast Guard, Washington, D.C.........    48
Sparks, Captain Thomas, Commanding Officer, Marine Safety Unit, 
  United States Coast Guard, Port Arthur, Texas..................    48

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Cummings, Hon. Elijah E., of Maryland............................    61
Jones, Hon. Walter B., of North Carolina.........................    64

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Dash, Professor Abraham..........................................    65
Denson, Judge Rosemary...........................................    69
Fitzpatrick, Judge Peter.........................................    83
Hewig, William...................................................    91
Massey, Judge Jeffie.............................................    99
Salerno, Rear Admiral Brian......................................   107

                       SUBMISSIONS FOR THE RECORD

Denson, Judge Rosemary, Former Coast Guard Administrative Law 
  Judge, ``Long-Standing Insidious and Vindictive Culture of the 
  CALJ Office, Which Has Resulted in the Continuous Violation of 
  the Administrative Procedures Act''............................    74
Jones, Hon. Walter B., a Representative in Congress from the 
  State of North Carolina, written statement of Sean McKeon, 
  President, North Carolina Fisheries Association................   113
LaTourette, Hon. Steven C., a Representative in Congress from the 
  State of Ohio:

  U.S.C. 49 - Transportation - Subtitle A - Office of the 
    Secretary of Transportation - Part 40 - Procedures for 
    Transportation Workplace Drug and Alcohol Testing Programs...    29
  National Transportation Safety Board judgement of June 11, 2003 
    in the case of Thomas H. Collins v. Christopher Dresser, 
    opinion and order............................................    31

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          REVIEW OF THE COAST GUARDS ADMINISTRATIVE LAW SYSTEM

                              ----------                              


                         Tuesday, July 31, 2007

                  House of Representatives,
    Committee on Transportation and Infrastructure,
   Subcommittee on Coast Guard and Maritime Transportation,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10:00 a.m., in 
Room 2167, Rayburn House Office Building, Hon. Elijah E. 
Cummings [Chairman of the Subcommittee] presiding.
    Mr. Cummings. Ladies and gentlemen, we will call this 
hearing to order.
    Today, the Subcommittee will examine the Coast Guard's 
administrative law system. This system adjudicates cases in 
which the Coast Guard personnel allege misconduct or negligence 
on the part of a mariner and seek the temporary suspension or 
permanent revocation of a mariner's professional credentials. 
The Coast Guard fairly emphasizes that these cases are brought 
against the credential and not against an individual mariner, 
and that the overriding purpose of these actions is to ensure 
safety in our Nation's maritime transportation profession.
    Safety is a critical goal, and mariners who are unsafe or 
who use drugs should not be on our Nation's waterways. However, 
the suspension and revocation of a credential or a license is 
not a matter that is to be taken lightly in any professional 
industry. Without a credential, a mariner simply cannot work. 
Thus, in any administrative hearing, a mariner sees hanging in 
justice's balance not just a piece of paper, but the ability to 
support a family, to pay a mortgage and to get ahead in life.
    Today's hearing will give our Subcommittee the opportunity 
to examine whether the policies and procedures governing the 
conduct of administrative adjudications in the Coast Guard's 
administrative law system guarantee the fairness of all 
proceedings to all parties who appear before the system.
    A detailed analysis of the 6,321 allegations filed by the 
Coast Guard against mariners through the administrative law 
system since 1999 reveals that a total of 3,441, or more than 
half of the allegations, claim that a mariner had used an 
illegal drug substance. Just over 30 percent of the allegations 
claimed incompetence, misconduct, negligence on the part of the 
mariner, and the remaining cases involve either the alleged 
violation of a marine safety law or a conviction in another 
legal proceeding for drug use, a DUI or other offenses. 
According to the Coast Guard records, of the 6,321 allegations 
filed against mariners since 1999, a total of 6,149 have now 
reached some type of disposition. Just over 46 percent of the 
allegations were settled between the mariner and the Coast 
Guard without proceeding to an adjudication. A total of 901 
allegations ended in default because a mariner never responded 
to the allegations while 433 allegations were administratively 
withdrawn by the Coast Guard because a mariner could not be 
found to be served with an allegation, and 422 allegations were 
withdrawn by the Coast Guard either because the allegation did 
not proceed or, more often, because a mariner voluntarily 
agreed to surrender a credential.
    Of the 6,149 allegations that have reached a disposition, 
of 957 allegations, only 740 dockets were contested either 
because a mariner denied an allegation or disputed a proposed 
sanction. I note that a single docket often contains more than 
one allegation. Of these 740 contested dockets, ALJs have 
missed 131, or nearly 18 percent of the cases. A total of 326 
dockets, or 44 percent, reached settlement. 152 dockets 
proceeded to adjudication, and the remaining dockets reached 
some other disposition or are still in progress. Of the 152 
dockets for which an adjudication proceeded to the issuance of 
an ALJ order, the charges against the mariner were found to be 
unproven in 18 cases.
    Though, the Coast Guard's appeals of four of these cases 
resulted in three cases being remanded and the modification of 
one ALJ decision. Of the remaining dockets that proceeded 
through the adjudication, only some of the allegations on the 
docket were proven or a contested sanction was reduced in 131 
cases while all allegations were proven on 93 dockets, or 61 
percent of the cases that proceeded to adjudication.
    Now, while these numbers are very interesting, we have to 
be very careful. Of course, while these numbers give us an 
overview of the disposition of allegations and dockets, they do 
not reveal a mariner's motivation in agreeing to a settlement 
or to explain why some allegations were found to be proven or 
unproven. Most importantly, these numbers reveal nothing about 
whether the policies and procedures governing either the 
management of the entire administrative law system or the 
conduct of individual adjudications are fair or whether they 
are fairly applied by the system's Administrative Law Judges. 
Further, if there are instances of unfairness and propriety, 
these numbers do not reveal whether they are isolated incidents 
or proof that an entire system tolerates or even encourages 
prejudice against one party or the other in the conduct of an 
adjudicative proceeding.
    Unfortunately, allegations of unfairness and impropriety 
have come to the attention of this Subcommittee. Our hearing 
will explore the validity of these allegations. Our hearing 
will also examine whether the procedures in place in the Coast 
Guard's administrative law system meet the higher standard of 
preventing even the mere appearance of impropriety or 
unfairness. Such appearances in any legal system are simply 
intolerable because they destroy trust in the system, which 
must be the ultimate protector of individual rights. By the 
way, this still is the United States of America.
    Administrative law is unique because it is a legal system 
within an executive branch agency, designed to oversee the 
application of agency rules and regulations. Further, it is a 
system in which facts and decisions are concluded not by jury 
or by peers, but by a single Administrative Law Judge who also 
has wide latitude in directing the course of the proceedings.
    We will hear today from three individuals who have borne 
the responsibility of adjudicating administrative proceedings 
in the United States' Coast Guard's administrative law system. 
We will also hear from a witness who brings years of experience 
in representing mariners before the Coast Guard administrative 
law system. Another witness is Professor Abraham Dash, 
Professor of Law, Emeritus, of the University of Maryland 
School of Law, from which I proudly graduated. Although he did 
not teach me, I wish he had. He brings decades of experience, 
studying and teaching law to generations of students. The Coast 
Guard has sent two senior officers to discuss the management of 
its administrative law system, and we also look forward to 
hearing from them.
    Ladies and gentlemen, the very foundation of the entire 
American system of justice is the right to a fair hearing and 
to due process in any manner involving the law. These rights 
are sacred in this Nation. As a lawyer and as an officer of the 
court, I share the duty of those sworn to uphold these rights. 
More importantly, as Members of Congress, the Members of our 
Subcommittee share the duty of ensuring that all executive 
branch agencies treat all citizens fairly and impose sanctions 
against any individual only when an administrative proceeding 
has been fairly conducted, provides due process and all 
evidence has been heard.
    I emphasize that we will not be examining individual cases, 
whether opened or closed, in today's hearing. The adjudication 
of administrative cases is properly left to the administrative 
law proceedings, and we honor that principle today. Rather, our 
task today is to ensure that the scales of Coast Guard justice 
can be trusted to fairly balance the legitimate safety concerns 
of the Coast Guard with the rights of mariners.
    With that, I look forward to the testimony of all of our 
witnesses. I thank all of you for being here today.
    Now we will hear from our distinguished Ranking Member, Mr. 
LaTourette, and on the record as I recognize you, Mr. 
LaTourette, I want to, again, thank you for working so closely 
with me on these matters but, just as importantly, the vote 
that we will take today with regard to Deep Water. I want to 
thank you again for your cooperation, and I really appreciate 
it.
    Mr. LaTourette.
    Mr. LaTourette. Thank you for yielding, Mr. Chairman. I 
want to respond in kind to your remarks.
    I apologize for being so brief last night on the floor, but 
we had some people who were pretty antsy to vote, but clearly, 
your leadership on the Deep Water bill and the Coast Guard 
reauthorization were done in a truly bipartisan way, and it is 
a pleasure to serve as your Ranking Member on this 
Subcommittee.
    I want to thank you, Mr. Chairman, for holding this hearing 
today, and I also want to thank you for what I consider to be a 
very measured opening statement, because what brings us here 
today--I have to tell you just a little bit of background. I 
began my career as a public defender, and I stopped being a 
public defender because, when you are a public defender, the 
judges do not like you; the prosecutor does not like you, and 
your clients do not like you. So I then switched, and I became 
the prosecuting attorney in my town before my election to 
Congress, so I have seen the justice system from both sides, 
and I am concerned that the allegations that I expect to be 
raised today are going to suggest that the ALJ system within 
the Coast Guard is somehow fixed in favor of the Coast Guard 
and against those who seek redress, and that is troubling to me 
as a lawyer and as an officer of the court, as I am sure it is 
troubling to you.
    When we had a hearing a couple of weeks ago, I listened to 
you talk about a Baltimore Sun story, and I did not know what 
it was because I do not subscribe to the Baltimore Sun because, 
quite frankly, I am from Cleveland, and I am still mad about 
their stealing the Cleveland Browns.
    But I did read the story, and the story is alarming, and it 
is alarming because it claims in its opening salvo that, out of 
6,300 cases, in only 14 cases did the mariners prevail. Now, 
that is a startling number, and I will tell you, as a 
prosecuting attorney, when I indicted somebody, they were most 
likely guilty, and so, when we would go to trial, it does not 
surprise me, when the article talks about the DOJ system, where 
9 to 1 is the conviction rate. I get that, and I think that 
that is reasonable and that it is probably uniform across the 
system.
    The problem with the Baltimore Sun article is that it does 
not appear to be true, and I think the Chairman, in his opening 
statement, pretty well laid that out. Of the 6,321 cases, only 
957 were contested, and I will get down to the bottom there. 45 
percent were settled. In 9 percent, the mariner admitted the 
misconduct. 7 percent were withdrawn, and in 7 percent, they 
were unable to find the person, and so they did not serve the 
documents. It is my understanding from reviewing the documents 
that only 218 of these 6,321 actually got to in Administrative 
Law Judge's desk, and of those, 124 were proven. That is 82 
percent, which is below the 90 percent that you would find at 
the Department of Justice.
    The other thing that concerns me is that there are 
allegations in the article from former Administrative Law 
Judges about ex parte communications and hearings that took 
place, but I do not find anybody on today's witness list who 
was at those meetings, and so I would like to submit and ask 
unanimous consent to submit for the record a memorandum 
prepared on 7 March 2005 that details the meeting in New 
Orleans. Just as a pertinent part, before the meeting started, 
according to this document, I understand there might be 
somebody named Jordan in the audience, and I understand he was 
at the meeting, and so, if we are going to get into this 
meeting, perhaps we could ask Mr. Jordan to tell us what really 
happened at the meeting because he was there. It specifically 
says that they laid ground rules that they were going to be 
prohibited from having any ex parte communications.
    Now, you know, Mr. Chairman, ex parte communications are 
horrible, and they are cause for recusal and dismissal and 
everything else, but if that did not take place, I hope that we 
are not going to hear from witnesses who claim that it did.
    Then, secondly, as to a meeting that took place in 
Baltimore on a memorandum prepared on 11 April 2005, I would 
ask unanimous consent that those be submitted for the record.
    Mr. Cummings. Without objection, so ordered.
    Mr. LaTourette. Then also laced in the article is this 
whole business about hemp oil and marijuana. The Chairman 
correctly points out that most of these cases deal with 
substance abuse, and I would hope that someone could explain to 
me why--and I think there is an allegation and some testimony 
that this Chief Judge Ingolia, who is not going to be here 
today, circulated some secret memo about you are not going to 
take in evidence on hemp oil. Well, I have the CFR, 49 CFR 
40.293, that says the DOT regulations specifically directs that 
you may not take into consideration in any way statements by 
the employee that attempt to mitigate the seriousness of the 
violation related to the use of hemp oil, medical marijuana, 
contact positives, poppy seed ingestion or job stress.
    So, again, if you read the Baltimore Sun article, it is 
like this chief judge circulated some secret memo to deny a 
defense when, I think, the Code of Federal Regulations 
instructs the DOT operations to not consider it. I can remember 
it was a big thing for guys who got DUIs, when I was the 
prosecutor, that they would like drink Listerine and then pop 
some stuff or say they were diabetics, and so I do not know 
whether that is going on with hemp oil or not, but the 
allegation in the article is that this chief judge was denying 
people their rights because of the use of hemp oil when, in 
fact, DOT regulations say that you cannot consider it.
    So I would hope, depending upon what comes up at this 
hearing, that the Chairman would consider having an additional 
hearing where former ALJ Lawson, who is the only person quoted 
in the Baltimore Sun article that appears to say anything nice 
about the ALJ system--and Brudzinsky, Ingolia and McKenna, 
together with Mr. Jordan and others, who were participants at 
the meeting down in New Orleans--so we can get a truly accurate 
picture. I will tell you that, if this system is slanted 
against mariners, I will join the Chairman to fix it, but I do 
have some questions as to how this article was generated, and I 
have some questions about the allegations contained in it.
    I thank the Chairman for the hearing, and I look forward to 
it.
    Mr. Cummings. I want to thank the gentleman for his opening 
statement. Let me be very abundantly clear.
    I think that you were very kind, and you were very accurate 
when you talked about my measured opening statement. I am not 
so much concerned about the numbers. I am concerned more about 
the allegations, and I think that we have to--whenever these 
kinds of situations arise, I think, preliminarily, we have to 
look into them.
    Let me say to Mr. LaTourette that there has been no issue 
that we have dealt with--and we have dealt with many on this 
Committee in the last 7 months--that has gotten more of a 
response than this one from the mariner community.
    Again, as you well know, I approach these hearings from a 
very balanced standpoint, and we go where the facts lead. As 
far as the February 2005 meeting, we asked the Coast Guard to 
send us some folks who could address those issues. We would 
have loved to have had them, but they did not do that. So, with 
regard to follow-up, you know I do not mind holding hearings. 
As I have said many times, when it comes to the Coast Guard, I 
will have a hearing every day to make sure that it is the very 
best organization that it can be.
    So one of the other problems that we face is that there is 
an ongoing DOJ--there are ongoing cases, and so there were some 
issues, I think, where they did not want--that maybe the Coast 
Guard did not want to send certain people, and certain people 
were just--it would just interfere with those cases, and so we 
were trying to strike a balance, but I assure you that I will 
work very closely to bring anybody before this Subcommittee and 
the Committee who can shed light on this situation because, in 
the end--I think the last thing you said is the thing that is 
one of the main reasons why I have so much respect for you, and 
that is that you said that if you find that there is unfairness 
that you, too, want to stamp it out. If there is none, then we 
are fine. We will just move on. So that is why we hold the 
hearing today.
    With that, we are very pleased to have with us 
Representative Walter Jones, who has asked to address the 
Subcommittee for 5 minutes, and I want to thank Representative 
Jones for being here. He is a Member of the Full Committee, and 
he is someone who I have just a tremendous amount of respect 
for, and I want to thank you for being with us. I was thinking 
about Armed Services. He and I sit on Armed Services together, 
and I know that he is a man of just tremendous integrity, and I 
am very, very interested to and I know our Committee is very 
interested to hear what you have to say.
    Thank you very much.
    Mr. Jones. Mr. Chairman, first, thank you for those very 
kind remarks. To you and to the Ranking Member--Mr. 
LaTourette--and to the Committee Members who are here today, I 
thank you for holding this hearing and for allowing me to make 
a very brief statement, and I want to start by quoting Thomas 
Jefferson, and this is his quote:
    "The most sacred of the duties of a government is to do 
equal and impartial justice to all citizens."
    Sadly, a recent Baltimore Sun investigation helped to 
reveal that the U.S. Government and specifically the Coast 
Guard's Administrative Law Judge system is denying mariners and 
fishermen the justice they deserve. The Sun's investigation 
confirmed what watermen in my eastern North Carolina district 
already know; standing up for your innocence in the Coast Guard 
court system is all but useless because the deck is so 
hopelessly stacked against you.
    The Sun found that the Coast Guard prosecutors have a 40-
to-1 success rate. Faced with the near certain odds of a guilty 
verdict and a steep penalty, innocent mariners still have no 
choice but to settle with the Coast Guard even if settling 
would do great damage to their reputations, to their careers, 
and to their ability to provide for their families.
    The Sun also uncovered other alleged improprieties and 
procedural inequities that, if true, help explain why mariners 
are so unsuccessful in Coast Guard courts. These allegations 
include the Chief Administrative Law Judge pressuring judges to 
rule in favor of the Coast Guard--these are allegations, I 
admit, but thank you for holding this hearing--improper contact 
between members of the Coast Guard's ALJ system and Coast Guard 
personnel regarding open cases, rulings being predetermined by 
judicial policies, circulated privately by the chief justice 
and the Coast Guard's Administrative Law Judge's repeated 
denials of defendants' requests for evidence against them.
    They are allegations, but as you said, Mr. Chairman, your 
comment was allegations need to be disproven if they are not 
true. Mr. Chairman, I cannot tell you how pleased I am that 
this Subcommittee is holding this hearing today. You have a 
symbol, a distinguished panel of witnesses, and I look forward 
to their testimony. But with your indulgence, I believe the 
Subcommittee would also benefit from hearing from some of those 
most affected by the Coast Guard court system, the watermen 
themselves.
    To that end, I would ask unanimous consent to include in 
the record a statement from Sean McKeon, President of the North 
Carolina Fisherman's Association. Mr. McKeon outlines the 
experiences that many North Carolina commercial fisherman have 
had with the Coast Guard courts, experiences which are 
disturbingly similar to those revealed by the Baltimore Sun.
    With that, Mr. Chairman, I ask that I might submit that for 
unanimous consent.
    Mr. Cummings. Without objection, so ordered.
    Mr. Jones. Mr. Chairman, with that, I want to thank you 
again for giving me these few minutes to make this presentation 
and to thank you and this Committee because, when it all comes 
down, it is exactly what Thomas Jefferson said, "equal under 
the law for all."
    So, with that, I yield back the balance of my time.
    Mr. Cummings. Representative Jones, let me just say this--
and I will make our Subcommittee Ranking Member aware of this 
also.
    First of all, thank you for the statement. Is it Mr. 
McKeon?
    Mr. Jones. Yes, sir.
    Mr. Cummings. One of the things that we found in our 
efforts to pull together this hearing is that there were people 
in the mariner community who were basically afraid to testify.
    Mr. Jones. I understand.
    Mr. Cummings. Afraid. That is very, very alarming to you as 
a Member, to all of us as Members of Congress. They were 
fearful of retaliation in some kind of way, and I am going to--
and we have got another hearing coming up on Thursday with 
regard to marine safety, and we had some issues with the same 
kind of problem. So we appreciate Mr. McKeon's statement, and 
we appreciate you.
    Do you have any questions?
    Mr. LaTourette. I do not have any questions. I just want to 
make an observation.
    Congressman Jones is my classmate from 1994, and over these 
last 13 years, I have the greatest admiration and respect for 
Congressman Jones and some very principled positions he has 
taken during his career.
    I would just say to my friend that one of the things that 
concerns me, as I attempted in my opening remarks to go 
through, is the fact that the Sun article is not correct when 
it comes to the 40 to 1, but the other thing that concerns me, 
again from my background as a prosecuting attorney, is that I 
am familiar with people being sort of whipsawed or forced to 
take pleas or to reach settlements that they do not normally 
want to do, and I think that that can be just as pernicious and 
obnoxious as a trial or a proceeding that is not fair.
    I, again, went to the Code of Federal Regulations, and I 
just want the gentleman to know that at least 45 percent of the 
cases that are settled require the person who has the charges 
filed against him to make an admission of all jurisdictional 
facts, so they have to say that the charges are true before 
they can enter into a settlement with the Coast Guard for 
presentation to a judge.
    Now, I am also familiar--we used to have something called 
an "Alford plea" where the defendant comes in, and he says, "I 
did not do this," but it is the difference between 5 years and 
10 years, and so I will take the 5. If that is what is going 
on, I will tell you, Mr. Jones and the Chairman, that that is 
wrong, too, but I do hope that this hearing and our additional 
investigation gets into this notion that 45 percent of the 
cases are settled, but in those settlements, the person has to 
admit the facts brought against him or her by the Coast Guard.
    I thank the Chair and I yield back.
    Mr. Jones. Mr. Chairman, again, I close by saying thank you 
to you and to Mr. LaTourette. I think this is a very, very 
important hearing, and I thank you very much for the 
opportunity to speak.
    Mr. Cummings. Representative Jones, we thank you. Thank you 
very much.
    We will now bring forth our first panel of witnesses. We 
will have two panels of witnesses. The first panel will be 
Judge Peter Fitzpatrick, a former Coast Guard Administrative 
Law Judge; Judge Rosemary Denson, a former Coast Guard 
Administrative Law Judge; Judge Jeffie Massey, a former Coast 
Guard Administrative Law Judge; Professor Abraham Dash, 
Professor Emeritus at the University of Maryland School of Law; 
and Mr. William Hewig, Attorney At Law and Principal with the 
firm of Kopelman and Paige, P.C. in Boston, Massachusetts.

  TESTIMONIES OF JUDGE PETER FITZPATRICK, FORMER COAST GUARD 
 ADMINISTRATIVE LAW JUDGE; JUDGE ROSEMARY DENSON, FORMER COAST 
  GUARD ADMINISTRATIVE LAW JUDGE; JUDGE JEFFIE MASSEY, FORMER 
 COAST GUARD ADMINISTRATIVE LAW JUDGE; PROFESSOR ABRAHAM DASH, 
 PROFESSOR EMERITUS, UNIVERSITY OF MARYLAND SCHOOL OF LAW; AND 
  WILLIAM HEWIG, ATTORNEY AT LAW AND PRINCIPAL, KOPELMAN AND 
               PAIGE, P.C. BOSTON, MASSACHUSETTS

    Mr. Cummings. I want to again thank all of you for being 
here today. We will ask you to make 5-minute statements. Keep 
in mind that we have your written testimony, and you can 
basically summarize your statements, if you will, and then we 
will go into the questioning. We will hear from you in the 
order that you are sitting.
    So, therefore, Mr. Fitzpatrick, please.
    Judge Fitzpatrick. Thank you, Mr. Chairman.
    My name is Peter Fitzpatrick, and I retired as a Coast 
Guard Administrative Law Judge, after 27 years of service, on 
January 3rd of this year.
    I want to say at the outset that, during the 27 years as a 
Coast Guard Administrative Law Judge in Norfolk, Virginia, no 
one, no chief judge--the present chief judge or the former 
chief judge--ever directed, pressured or ordered me to decide 
any case for either side. In addition to that, no district 
commander, no investigating officer and no captain of the port 
has ever told me how to decide a case. That allegation in the 
Baltimore Sun is absolutely erroneous as far as it goes for me 
in Norfolk. I am a very independent person, and so are the 
other Coast Guard judges. I cannot imagine someone like Judge 
Boggs, after 50 years of service in New Orleans, ever being 
told by anybody to do anything. That is the first point I want 
to make.
    Secondly, I found that article in the Baltimore Sun to be 
yellow journalism at its worst. I have never seen such an 
attempt to tear down the reputation of the chief judge of the 
Coast Guard, who I find to be a man of the highest integrity, a 
war hero who fought in the Second World War and in the Korean 
War. He is a man of the utmost and highest integrity and one 
who I respect as much as anyone I know. Never would he ever--in 
fact, at every meeting we ever had he was adamant in making 
sure that none of his judges had ex parte communications--that 
was a big issue, and it was a constant one--but more than that, 
as to the way in which he supervises and fills out his role as 
Administrative Law Judge, I had very little contact with the 
chief judge on a weekly basis.
    In fact, I would not hear from Washington for 3 or 4 months 
at a time. I would contact the staff attorneys who might be 
working for me as we were doing cases, but there was very 
little contact with the chief judge's office. In fact, at one 
point, it was rather frustrating to me, and I asked him. 
"listen, would you mind if I put together a monthly meeting in 
which the judges could talk about issues of their mutual 
interest." he said, "Yes," and we did that for a while, but it 
was really sporadic, and it did not go any place.
    I submit to you that there is a big difference between 
1980, when I began, and 1991--in that 11-year period under the 
former chief judge--and the present period between 1991 and the 
present. This chief judge has done a great job with that 
program, and the last thing on earth we have been encouraged to 
do or even--we would be criticized severely if we denied the 
rights of a respondent in a hearing.
    In every hearing I have I am fully aware of exactly how 
much this means to the individual. The most difficult and 
painful cases we have had are the drug cases because you can 
have someone who is a competent mariner who goes awry with the 
use of dangerous drugs, and we do not have much choice when it 
comes to one of those cases. If, in fact, it is proved with a 
testing process that he is the user of dangerous drugs, we must 
revoke unless under the statute it can be showed he is cured. 
When I started this job, the Coast Guard had a zero tolerance 
policy with respect to drugs. Myself, Judge Boggs and Judge 
Hanrahan in Jacksonville had a lot to do with developing the 
cure exception that is in the statute, and we would send our 
mariners to rehabilitation programs and stuff like that so that 
they could then show that they were cured and get back their 
licenses.
    The Coast Guard started out with a zero tolerance policy. 
So, as a result of our efforts as judges in the field, that 
changed, and today, of those settlements that you hear about, 
almost every case of drug testing is generally a settlement. It 
is a settlement where the individual goes through a 
rehabilitation program, takes unannounced drug testing during 
the period of time and takes courses, and then if he can show 
he has distanced himself for a year, he can go back to sea one 
time. If he does it again, then in my estimation, he should not 
go back to sea, but it is Congress that put that directive to 
us as judges. They put it to the Coast Guard. The Coast Guard, 
in its regulations, declares that, if an individual is shown to 
be the user of dangerous drugs, his document must be revoked.
    Mr. Cummings. Thank you very much, Mr. Fitzpatrick.
    Ms. Denson.
    Judge Denson. Good morning, Mr. Chairman and Members of the 
Committee. My time period with the Coast Guard as an 
Administrative Law Judge was from the period of 1982 to 1996. I 
can speak for that period of time. I know there have been 
changes made since then that I might not be aware of, but I did 
have some experiences in the Coast Guard that I thought were 
less than appropriate that should not be existing in a program 
like the Administrative Law Judge program that is supposed to 
provide fair and impartial hearings to our Merchant Mariners. 
Part of that existed with the internal workings of the program.
    I had experiences--there were three chief judges that I 
served under, one of them Judge Chatterton, the second Judge 
Boggs, Archie Boggs, and Judge Joseph Ingolia. My comments are 
not made in regard to Judge Boggs because I never had 
experiences with Judge Boggs that I thought were inappropriate 
and in an inappropriate environment for a judge to be operating 
under.
    With the first chief judge, I found that there was 
intimidation and isolation if you did not go along with the 
program. As far as my deciding a case one way or another, I was 
not influenced by this type of intimidation that I received, 
but nevertheless--and I can say that more towards Judge 
Chatterton than Judge Ingolia--there were letters written to 
embarrass me about a case that I might have been handling that 
he had never reviewed or who was never even present during the 
hearing, who was telling me to comport myself in a certain way 
because a disgruntled attorney had sent a letter, and the chief 
judge never called me; he never spoke to me; he just wrote a 
letter. This letter I received after a year when I was, really, 
in literal isolation from him because of some clerical leave 
that I had given my legal assistant. I was put on a bad list, I 
guess you could say, and there was no communication. It was 
this type of behavior.
    Then the most significant was not assigning me cases to 
hear, and that does not bode well for the following of the APA 
and the administering of justice in the rotational assignments 
of cases. The objective I found out later from Admiral Nelson 
of the Coast Guard at the time and Admiral Lust, who was the 
Chief of Staff--they told me that they were in the process of 
shrinking my caseload because of the desire of the then-chief 
judge to eliminate my position with the Coast Guard. That 
happened back in the 1980s. Then subsequent to that time after 
Judge Ingolia came on board, there was another process that 
gradually grew where there was a shrinking of my caseload and, 
eventually, a recommendation that my office be closed and that 
I be eliminated. This type of behavior, to me, was a setup to 
get rid of me on two separate occasions. I do not know what was 
not attractive about having me there, but it was done 
improperly.
    The final thing that was done was a RIF, and a "RIF" is a 
Reduction in Force in the government. The Coast Guard 
Administrative Law Judge Program happens to be a headquarters 
unit, and the Commandant instructions provides how a RIF should 
be done with the headquarters unit, and that was not followed 
by Chief Judge Ingolia at the time because, if it is a 
headquarters unit, your RIF competitive area is nationwide. 
That means I would have been in competition with all of the 
other judges. However, it was decided by Judge Ingolia that my 
competitive area was St. Louis where I served as a judge in the 
surrounding areas, and there were no other Coast Guard ALJs 
that I had competition with, and I was, therefore, eliminated. 
This is commonly known as a designer RIF, and it is used 
against veterans.
    So, if veterans are in a particular area of competition 
with no one to compete against, you can get rid of a veteran, 
and that was done to me at that time when they got rid of me in 
1996, but this just led up, I mean, there were many things that 
led up to this type of behavior, to this conclusion, I should 
say.
    As I said, my caseload was shrunk, and even when I asked 
for cases, they were not given to me. Cases were given to 
judges who were like 800 or 900 miles away when I was 300 miles 
away. When I was in St. Louis, a Chicago case up came up, and 
it was not provided me to hear that to keep my caseload going. 
I did sense what I was doing, and when I had that situation and 
that feeling that I am insecure in my position, that does not 
bode well for my sitting and being able to concentrate on my 
work in deciding the cases. However, I felt I worked very hard 
on my cases, and I did not show favor towards either side, and 
I thought I wrote a well-crafted decision and order.
    I also asked for assistance, for law clerks to assist me, 
which were provided to the other judges and were never provided 
to me. I do not have answers to why those questions happened. I 
am sure the Coast Guard chief judge has answers for that, but I 
was in a work environment that was not healthy, and I also 
retired under a medical disability because life is more 
important than putting up with that kind of behavior.
    So, as far as the seamen's getting a fair hearing, I did my 
very best in every single case to give them a fair hearing. 
However, there were outside influences that tried to direct 
against me to work in an environment where I do not think I 
worked up to my capabilities but where I could have, not that 
they did not get fair hearings.
    Mr. Cummings. Thank you very much.
    Ms. Massey.
    Judge Massey. Mr. Chairman, Mr. LaTourette and Members of 
the Committee, thank you for the opportunity to contribute 
information to your investigation.
    For a moment, let me ask you to imagine that you are a 
mariner living in Southern Mississippi. You are a high school 
graduate, and you have worked as a crewman on a vessel that 
takes supplies to oil rigs in the Gulf of Mexico. You have been 
employed by various companies in the last 10 years, but you 
have never done any other type of work, and you have no 
training to do any other type of work. It is 1:00 p.m. in the 
afternoon, and you are sitting in the upstairs hall of a 
regional Coast Guard facility, the same facility where the 
investigating officer you met with 6 months ago has his office.
    It was then that he served you with a copy of a complaint 
that alleged you had been intoxicated on board the vessel you 
last worked on, and while intoxicated, you assaulted another 
crew member. When your vessel docked after this incident, you 
were informed by the company's Regional Employee Relations 
Specialist that you were being fired because of the 
allegations, and they had to report the alleged incident to the 
U.S. Coast Guard. When you met with the investigating officer, 
he took your mariner's credentials from you. You have been out 
of work for 6 months. Although the investigating officer 
explained to you that you had the right to an attorney to 
represent you at a hearing, you cannot afford an attorney. You 
feel, if you just tell your side of the story, any reasonable 
person will know that the charges are not true. You believe 
that the Coast Guard will have several crew members present to 
testify because you know the Coast Guard took statements from 
them. They all know what really happened. When you received a 
witness list from the Coast Guard just 2 weeks before your 
hearing, you see that the names of all of the crew members they 
interviewed are not on there. You do not understand that this 
means that the Coast Guard does not intend to call these men as 
witnesses. There are all sorts of uniform Coast Guard employees 
milling about. After about 15 minutes, a man comes up the 
stairs, accompanied by the I.O. you met with and two other 
uniformed U.S. Coast Guard employees. They are laughing and 
talking and paying no attention to you. They all go into a room 
down the hall, a room you are summoned into in a few minutes.
    To your surprise, sitting on the bench is the man who is 
just laughing and talking with the Coast Guard employees. None 
of the crew members who you know witnessed the incident are 
present. The only people there are your former employer's 
Regional Employee Relations Specialist and the crew member you 
had the fight with. The hearing is over in less than 30 
minutes. The crew member who you had the fight with testified 
that you were intoxicated and that you attacked him for no 
reason. The employee specialist testifies that he received a 
report of the incident, took you off the boat because that was 
company policy and informed you that you were fired. You 
testify that you were not intoxicated, that the other crew 
member had been drinking, and he attacked you. You were only 
defending yourself. You also testify that this crew member had 
it in for you because a former girlfriend of his had started 
dating you. You know but do not say that this guy is also a 
cousin of someone's who is an executive in the company you 
worked for. You do not mention it because you do not know it is 
important, and no one asks you.
    You tell the judge that there were other witnesses to the 
incident, but he tells you that, if you did not get them to the 
hearing, then he was not going to hear their testimony today 
because today was your hearing date and your only chance to 
present your evidence. Before you really understand what is 
happening to you, the judge says your license is suspended for 
6 months.
    I hope that this scenario does not sound incredible or 
unlikely to the Committee Members because, based on my 
experience of the Coast Guard, this scenario is representative 
of past hearings, the type of hearings that have gone on for 
years at the Coast Guard. I also hope that the Committee 
Members understand that I am here today only because I believe 
the suspension and revocation hearing process at the Coast 
Guard is in violation of its own regulations and of all the 
basic tenets of due process.
    Despite the personal attacks and disrespectful environment 
I was subjected to while at the Coast Guard, my appearance here 
today has nothing to do with me, personally. What has been 
happening to the mariners who have been forced to face us in 
our proceedings without the protections guaranteed by law is 
the only thing that matters.
    I welcome the questions of the Committee Members.
    Mr. Cummings. Thank you very much.
    Professor Dash.
    Mr. Dash. Thank you, Mr. Chairman.
    My name is Abraham Alan Dash. I am an Emeritus Professor of 
Law at the University of Maryland School of Law where I have 
taught admin law for the past 30 years. I am present today 
because the law school wanted to extend all courtesies to this 
Committee, particularly to its Chairman, one of our former 
graduates. I am here myself because there were two of us who 
teach admin law who were available this summer, and I lost the 
toss, so I hope that establishes the fact that I am completely 
objective here at this hearing.
    Now, much of what I will say in my statement I am pretty 
sure all of you are familiar with, but for the record, the 
Federal APA was passed in 1946, and this statute was an attempt 
to correct the due process problems of that time. There were no 
standard procedures of agencies. Each agency, more or less, did 
what they wanted for an adjudication or for a rulemaking.
    Now, the adjudication sections of the APA are, obviously, 
the most relevant here. I would note the adjudications under 
the APA are reserved only for those agencies whose statutes 
require a hearing on the record. Now, the reason I note it is 
because, when an APA hearing is triggered, it is because 
Congress intended to have the full panoply of due process 
rights for that particular adjudication.
    Now, the APA hearings, of course, go way beyond any 
requirements of the fifth amendment of due process. They are 
loaded. Sometimes they are compared to a Federal District Court 
non jury trial.
    I notice that it is apparent that there were three areas of 
procedural due process of the APA that are relevant to this 
hearing. One is the independence and impartiality of the 
factfinder, or the, i.e., Administrative Law Judge; ex parte 
contacts with the factfinder, again the Administrative Law 
Judge; and the discovery for respondents in Coast Guard 
adjudications.
    Now, on independence and impartiality, in the 1970s, there 
was a complaint that the then hearing examiners at the time 
were not as objective or independent as they should be. 
Congress held hearings, and there were issues coming up of 
perhaps having an Administrative Law Judge corps or even a U.S. 
administrative court. The compromise in Congress was to change 
the name of the hearing examiner to Administrative Law Judges, 
and it was not any simple change in title. It was the clear 
intent of Congress to maintain their independence. I will also 
note that the pay of ALJs is set by the Office of Personnel 
Management, and the discipline of ALJs is entrusted to the 
Merit Systems Protection Board and, of course, not to the 
individual agencies.
    As to ex parte contacts with ALJs, I do not think I would 
waste the time of the Committee. It is so obvious that ex parte 
contacts with a fact finder in a pending case is definitely a 
denial of due process.
    Discovery. The APA says very little about discovery in 
agency proceedings. Agencies are authorized to issue subpoenas, 
of course, by the parties on request. They are also authorized 
to permit depositions be taken. Now, the Attorney General's 
manual, when they first interpreted the APA in 1947, did stress 
that the party should be given the same access to discovery as 
the agency, which, in all fairness, is difficult to do because 
agencies have a lot of vesicatory powers before they ever bring 
a charge. However, agencies do differ in the types of discovery 
permitted.
    There are some who use the liberal discovery rules of the 
Federal Rules of Civil Procedure. Others are more limited. Of 
course, there is discretion left with the Administrative Law 
Judge because each case is separate, and discovery can very 
much be dependent on the nature of the parties and on the 
intricacies and the problems, obviously, of the case, itself. 
There is also, of course, a basic due process requirement for 
discovery so respondents can defend themselves.
    I would also note, before I close, that I have a great 
respect for Administrative Law Judges. I have had the honor of 
lecturing at the National Judicial College in Reno to ALJs. I 
have also lectured to some of the agencies and to their ALJs. I 
would note to the Committee--I am pretty sure you are aware of 
it--in some agencies, for an ALJ, the requirements are more 
strict than to be a Federal District Court judge. So they 
deserve all respect that could be given to them.
    In conclusion, of course, I am available here for any 
assistance I may give the Committee, and will answer any 
questions that I can.
    Thank you, sir.
    Mr. Cummings. Thank you very much.
    Mr.-- would you pronounce your name for me.
    Mr. Hewig. It is "Hue-wig," Mr. Chairman.
    Mr. Cummings. "Hue-wig." I just wanted to make sure I got 
it right.
    Mr. Hewig.
    Mr. Hewig. Thank you, Mr. Chairman, the Ranking Member and 
Members of the Subcommittee. My name is William Hewig from the 
Boston, Massachusetts law firm of Kopelman and Paige.
    My written statement discusses two cases from my recent 
experience, and I will not review the details of those cases 
here with you now other than to say that they illustrate very 
well two of the main themes in Judge Massey's memoranda--
apparent bias on the part of some ALJs in favor of the Coast 
Guard and the disregard of regulations that would permit 
discovery. The lessons from these cases present three policy 
implications that I would respectfully put before you now.
    First, ALJs for license, suspension and revocation of Coast 
Guard actions must be independent, truly independent. Judge 
Massey's information detailed what appeared to be possibly 
extensive networks of ex parte communications between the Coast 
Guard and the ALJs. If such an arrangement is, in fact, true, 
it should not be surprising when apparent improper influence 
and interference become inevitable features of the system, 
itself.
    I urge the Subcommittee to reform the procedures for 
adjudicating maritime license and document actions along the 
lines employed by the FAA, the Federal Aviation Administration. 
There, when the FAA makes a civil penalty or a licensing 
decision, the adjudication is referred outside the agency to an 
ALJ and to the National Transportation Safety Board. Such a 
reform would serve the important public policy benefit of 
benefiting not only mariners, but also the Coast Guard and the 
ALJs, themselves, by reaffirming the integrity of a system 
currently subject to widespread disrespect and skepticism.
    Secondly, some limited discovery should be granted as of 
right. Judge Massey's information essentially showed that the 
1998 rule amendments made to permit discovery were, instead, 
being promoted by the Coast Guard as a way to deny discovery. 
Judge Massey correctly recognized the connection between 
discovery and judicial economy. In my experience, discovery is 
the catalyst of settlement, and settlements serve the important 
public policy of judicial economy. I urge the Subcommittee to 
consider amending the regulations to provide some form of 
limited discovery in S&R proceedings as of right.
    Third, in science and medicine, there are no absolutes. 
Judge Massey's information contained recurring references to a 
prevailing attitude within the agency that the Coast Guard is 
always right. We saw, in the first case I discussed with you in 
my written statement, the McDonald case that the Coast Guard 
was wrong about their science. That was a mistake that cost the 
taxpayers as well as the respondent thousands and thousands of 
dollars. If the Supreme Court can recognize that scientific 
conclusions are subject to perpetual revision, then I would 
respectfully submit that the Coast Guard must do the same.
    Where a legal outcome is, by regulation, determined by 
scientific or medical information or measurement, the evidence 
or measurement should never be absolute. It should always be 
made a rebuttable presumption to allow a case-by-case 
determination. Had that been the case in the McDonald matter, 
thousands of dollars and 3, 4, 5 years of time might well have 
been saved. This would serve the important public policy goal 
of fairness to mariners as the McDonald case clearly showed.
    In conclusion, our mariners, as American citizens, have the 
right to expect that the public officials who preside over 
their affairs and, in so doing, govern their livelihoods will 
do so with honesty, integrity and respect for the laws and for 
the constitution of their land and our land, and that, above 
all, is the most important public policy goal that Judge 
Massey's experience, as well as my own, have to respectfully 
commend to your care.
    Members of the Committee, thank you for hearing me.
    Mr. Cummings. Thank you very much.
    Let me thank all of you for your testimony, and let me say 
from the outset that, as I was sitting here, listening to the 
testimony, particularly that of Ms. Denson and of Ms. Massey, I 
realize that so often when we sit in these hearings there is a 
presumption that somebody has a personal gripe, and I think we 
have to be very careful with that because, as I was saying to 
Mr. LaTourette a little bit earlier, we have got to look at all 
of these allegations and try to separate them and get to the 
bottom line because the bottom line is justice. If something is 
systemic, if something is an aberration, you know, we have got 
to look at those kinds of things, and so I am going to.
    For my first round of questions, I want to go to you, 
Professor Dash.
    Mr. Dash. Yes, sir.
    Mr. Cummings. Assuming you have reviewed CFR 33, part 20 
and the guidelines for discovery requests that were issued in 
March 2005 by Chief Judge Ingolia, do you believe that the 
guidelines present what might be termed a "valid" or"accurate" 
interpretation of CFR 33, part 20?
    Mr. Dash. Well, let me be very measured, Mr. Chairman, in 
my answer. There is no question that a chief judge can set 
policy guidelines usually on administrative matters. In reading 
his guidelines on interpreting discovery under the part 20 
rules, the 600 series, it seems to me that it is a message--if 
I were an ALJ, it is a message to sort of limit discovery as 
much as possible.
    There is another thing in it that causes me some question, 
and here, I defer to some of the better experts on their regs, 
but if you look at 20.103 of the regulations, it ends "absent a 
specific provision in this part, the Federal Rules of Civil 
Procedure control." now, in the guidelines that were given, the 
chief judge, in the guidelines, says to ignore the Federal 
Rules of Civil Procedure, the discovery rules there, which are 
liberal.
    Now, obviously, I would say most agencies do not follow the 
Federal Rules of Civil Procedure, which are very liberal 
discovery, but my reading of these--unless there is a specific 
provision somewhere that says that the Federal rules are not 
available, if I am right in my reading, he is using this memo 
to change the regulations, which, of course, you cannot do 
that. You have to put it out for notice, et cetera, et cetera 
and public comment before you change it.
    Mr. Cummings. Let me just get to--I am sorry to interrupt. 
I want to get to this.
    Based upon what you just said, what you just said, how 
would that affect the scales of justice? In other words, if 
discovery were limited, more limited than, say, they are 
supposed to be, what happens then as far as the scales of 
justice, that is, Coast Guard/mariner scales?
    Mr. Dash. I would say it would create a problem for an 
Administrative Law Judge who thinks in a given case they should 
grant a little more discovery to a respondent, that if their 
belief is that the policy of the agency is not to give too much 
discovery, I think that inhibits it. Because let me see if I 
can explain that a little bit more, and I would defer to the 
Administrative Law Judges. A lot of this is so discretionary. 
An ALJ or a fact finder in granting discovery keeps in mind who 
is the respondent. Is he represented by a lawyer? Is he on his 
own? How complex is the particular facts here? How much has the 
government given to the respondent? And as I say, it is a very 
subjective determination. And as you can see, these kinds of 
determinations can be effective if the pressure is not to give 
too much discovery. And that concerned me. But it also 
concerned me that, in this particular memo or guideline, it 
seems to me changing the regulation, which of course you can't 
do in a policy memo, and if I am correct, that basically the 
Coast Guard may very well be able to use the Federal Rules of 
Civil Procedure discovery to say in the guidelines to ignore it 
would be a change I think in the regs. But as I said, I'm not 
sure if somewhere in the regulations there is a specific 
proposal that says the Coast Guard in their hearings are not 
under the Federal Rules of Civil Procedure.
    Mr. Cummings. Ms. Massey, do you want to comment on that? 
And one of the things that you said, and I want you to listen 
to this, Professor Dash and Mr. Hewig, one of the things, if I 
recall in your testimony, Ms. Massey, you said when you were a 
judge that sometimes there would be situations where you would 
order discovery and the Coast Guard just disregarded it or they 
would not present discovery and basically said, go take a hike. 
I mean--you go ahead. Those are my words. But that seems to be 
what you were trying to say.
    Judge Massey. Yes, sir.
    Mr. Cummings. Which I think is incredible.
    Judge Massey. I thought it was pretty incredible myself, 
sir. There were two specific cases. I won't mention the names; 
one where the respondent requested that I issue a subpoena. I 
believe the grounds for issuing the subpoena were reasonable 
and necessary, so I issued the subpoena. Time passed for the 
Coast Guard to comply with the subpoena, and they had not filed 
a motion to quash, which is in the regulations. They had done 
nothing. So I initiated a telephone conference. And during that 
conference, one of the investigating officers said, Well, Judge 
Massey, we are not going to comply with your subpoena; we are 
just not going to do it, because we don't think it is right.
    There was another case where the respondent's attorney 
requested permission to send interrogatories to the Coast 
Guard. And this was a fairly factually complex case. And after 
consideration, I granted the issuance of the interrogatories 
and issued an order that they be served upon the Coast Guard 
and that the Coast Guard file their objections by a date 
certain. And if they were going to file answers, then that 
would have followed, say, a week later. I don't remember the 
exact timing. The deadline passed for the filing of objections. 
They filed nothing. And then by the time the deadline came for 
the filing of the substantive answers, they filed objections. 
The respondent made a motion that I order them to make 
substantive responses, and I issued that order. And once again, 
they basically filed a document that was nonsubstantive and 
later told me, We are just--we don't think you can do that, so 
we are just not going to answer those questions.
    Mr. Cummings. And so what--I mean, very briefly, what 
happened after that?
    Judge Massey. Well, there was, in both of those cases, 
there was a motion for sanctions made by the respondent. And I 
ended up granting the motion for sanctions, and the complaints 
were dismissed.
    Mr. Cummings. I see.
    Professor Dash, let me come back to you. Do you believe 
that the general purpose of rule changes made in the Coast 
Guard's administrative laws since 1999 and included in 33 
C.F.R., Part 20, was to limit discovery as the chief judge's 
outline would seem to indicate or to expand them or leave them 
the same?
    Mr. Dash. Well, actually, in the guidelines, and I want to 
be fair with the chief judge, it seems to be a little 
inconsistent. He starts out in the guidelines indicating that 
there were limits to the discovery and that the regulation on 
the 600 part was intended to standardize and provide for 
discovery. When I looked through the rules, the rules to me 
have the standard boilerplate that you don't waste time; you 
wish to have an expeditious hearing.
    But at the same time, I think it emphasizes that ALJs 
should have the discretion to grant discovery when they think 
it is necessary. For example, he, in the in the guidelines, he 
seems to want to ignore 20.103(b) which says, except to the 
extent that a waiver would be contrary to the law, the 
Commandant, the chief ALJ or the presiding ALJ may, after 
notice, waive any of the rules in this part either to prevent 
undue hardship, et cetera, et cetera.
    In other words, you have a rule here which recognizes that 
there should be a lot of discretion left to the ALJ in 
discovery as well as, obviously, in all procedures of the 
hearing. And in the guidelines, there seems to be an attempt to 
say, ALJs, well, don't really--sort of ignore it in a way. And 
to me, it is an attempt to indicate that the scurry should be 
as limited as possible. Now, I don't know what the problem was. 
I don't know whether the chief ALJ had found that there was too 
much discovery and a waste of time in these hearings. And if 
so, I would probably have suggested or recommended that he 
modify the rules and put them out for comment to indicate that 
there should be more limitations.
    Mr. Cummings. Is that the way that would normally be done 
if there was a necessity for a change in the rules, the way you 
just stated? 
    Mr. Dash. Oh, yes. If you are going to change the rules, 
and I go back, again, to what I said initially, that under the 
regulations, it seems to say that the ALJs can use the Federal 
Rules of Civil Procedure, the liberal discovery. And in the 
guidelines, he is saying, you can ignore the Federal Rules of 
Civil Procedure. That is a change in the regulations. And that 
has to be done under the APA by notice, comment, you know the 
standard procedure for rule making.
    Mr. Cummings. Documents in possession of the Subcommittee 
indicate that some Coast Guard personnel were concerned about 
Judge Massey's conduct at administrative hearings. If concerns 
are raised about a judge's demeanor in a courtroom or about the 
judge's application of precedent or regulations to the conduct 
of a hearing, how should those concerns be raised, and how 
should a chief ALJ properly examine and address such concerns? 
Would it be appropriate, for example, as apparently occurred in 
the Coast Guard, for staff members from various Coast Guard 
units, including both the units that investigate cases, went 
before the ALJ system, as well as staff of the ALJ system and 
the Commandant to hold a meeting to discuss the management of 
suspension and revocation cases, even if the cases are not 
named in a general discussion of issues that are known to be 
pending in open cases appropriate; is that appropriate in such 
a meeting among such parties?
    Now, Mr. LaTourette talked about a meeting back in 2005, 
and the memo coming out of it and certain language at the 
beginning of the meeting. It says, at the onset of the meeting, 
guidelines were provided to the meeting attendees as 
information concerning active cases that could result in 
prohibited ex parte communications should not be discussed. 
Issues could and were discussed without any reference to a 
particular case. No member of the ALJ program staff is assigned 
to any D8 related cases.
    Even if you have put those guidelines out, meaning you 
state that at the beginning of a meeting with those parties 
coming together, you talked about when you have these ex parte 
communications in your statement, your opening statement, you 
said there is a denial of due process. And I think Mr. Hewig 
alluded to that, too. Is that a problem? I mean, you can say--I 
mean, you can say anything you want to say at the beginning of 
a meeting, say, we are not going to do this. Is the meeting in 
and of itself with certain parties a problem?
    Mr. Dash. I find two problems with the meeting. The first 
problem is, and, again, the record should correct me, my 
understanding is one of the people who was present would be 
handling the appellate aspects of these hearings. If that is 
true, even though they were not referred to any specific case, 
obviously the complaints that would indicate that X occurred at 
a hearing, or whatever it was, would come up in that record, 
because my understanding was, at the time, there was still a 
case or two that was in the appellate process. If I am wrong on 
that analysis, my apologies. But that is my understanding, that 
that was part of it.
    The other thing that bothers me about this is that when 
prosecutors conferring with those who have a certain authority 
over a judge, like an administrative judge, let's say in our 
circuit courts in Maryland, that is not the way to do it. Under 
the APA it specifically states that if an agency has a 
legitimate grievance against an ALJ that they think whatever 
they are doing is, as in that memo there was some rather 
serious criticism of the ALJ, if they believe that, they can 
file charges with the Merit Protection Board, which will then, 
of course, notify the ALJ, and they hold an APA hearing to see 
what, if any, discipline should be given.
    I sort of think there is a problem with the independence of 
the ALJ if you can have meetings of prosecutors with those who 
have certain control over the ALJ where they can protest and 
complain about their actions. The complaints might be 
legitimate; I don't know. The ALJ in fact might have been doing 
things that they have a legitimate argument against them. But 
they should be filed I think with the Merit Protection Board if 
it is serious enough to raise. If it isn't serious enough to 
raise, then there shouldn't be a meeting.
    Mr. Cummings. But is that considered a serious violation? I 
mean, would you consider it a serious violation, that is an ex 
parte communication?
    Mr. Dash. If one of the members of that meeting in fact was 
going to be handling an appeal of one of the cases which had 
already been decided by the ALJ but was on appeal, if he was at 
that meeting, yes, I would consider that very serious. Because 
the whole idea of the appeal is for the appellate judges or the 
agency appellate system gets a fair reading of what happened at 
that hearing below. And if he is participating at a meeting 
where he hears X and Y and Z occurred, even though they don't 
name the case, obviously those facts will come up.
    Mr. Cummings. And what if these folks were staff people as 
opposed to the actual person, say, hearing the appeal?
    Mr. Dash. Well, if there is----
    Mr. Cummings. Does it extend to them, your same comments?
    Mr. Dash. Yeah. If there is a meeting of let us say the 
prosecutorial staff, the IOs or whatnot, I see no problem. If 
they want to sit around and say, there is an ALJ here, you got 
to watch out; they are no good, or whatever they want to say, 
they can, or recommend, after their meeting, recommend to the 
agency itself to file charges against the ALJ to the Merit 
Protection Board. So that would be different.
    My concern with this meeting was, again, whether there was 
someone involved in the appellate process participating in the 
meeting. If these were just pure staff, part of the executive 
section or the prosecutorial section, well, certainly they are 
free to have meetings to discuss, just as prosecutors discuss 
judges. But there is a difference when you are discussing these 
kinds of things with someone who is going to be part of the 
decision-making in the appellate system.
    And also there is a problem if that kind of complaint is 
sent to anyone who has authority over the ALJ. So let us assume 
that the memo ended up in the hands of the chief ALJ, that, to 
me, would be a problem.
    Mr. Cummings. Mr. Hewig, did you have a comment on that?
    Mr. Hewig. Mr. Chairman, I would add to that that any ex 
parte contact between the agency and its judiciary that is 
designed to affect the outcome of cases, whether currently 
before them or not, ought to be objectionable as well.
    Mr. Cummings. Mr. LaTourette.
    Mr. LaTourette. I agree with that statement.
    And Professor Dash, just so I am clear, because, again, ex 
parte communications on pending matters that have the ability 
to affect the manner, appeal or anything else are obnoxious and 
shouldn't occur.
    It is my understanding, however, and if the record, and 
that is why I wish we had somebody who was actually at the 
meeting talking about the meeting today, because it is my 
understanding that what was being discussed at the meeting 
wasn't cases; they were objections that the prosecuting 
officials had with the conduct of a particular ALJ. And they 
were complaining about that she was abusive, that she was 
derogatory in her remarks, things of that nature. Do you have 
the same kind of objections to that kind of meeting?
    Mr. Dash. Again, if it is among the staff. In other words, 
there is nothing wrong with the IOs getting together or 
prosecutors getting together to talk about their problems with 
judges. My problem is that if you have anyone who is going to 
be part of the decision-making, and again I am uncertain, but 
my information is there was someone in the appellate section, 
he can, from these complaints, when he later gets the record of 
the case that he is going to handle on appeal, I don't say it 
is definite, but I could perceive or even say, hey, is this 
what they were talking about as he looks at the record?
    Mr. LaTourette. And I think I understand your concern. And 
again, I would hope we could have someone who was actually at 
the meeting.
    Judge Fitzpatrick, you were in the Baltimore Sun article; 
you know that, right?
    Judge Fitzpatrick. Yes, sir, I read it.
    Mr. LaTourette. And given the fact that you called it 
yellow journalism, I think in the your opening statement, did 
you particularly read the part about that?
    Judge Fitzpatrick. Yes, sir, I did.
    Mr. LaTourette. And I think that that observation, let me 
find it real fast, is sort of, they basically said you weren't 
fair in that case. And then you have the great journalistic 
technique of somehow saying you wouldn't comment to them, so I 
guess because you wouldn't talk, you must be a bad guy. Would 
you care to talk about that particular discovery issue that you 
had before you without talking--whatever you feel comfortable 
about. But basically they are saying that the rules of 
discovery weren't followed, that the Coast Guard wanted to have 
some kind of trial by surprise, and you were not right in the 
way that you ruled on the discovery matter.
    Judge Fitzpatrick. The irony of it all, Mr. LaTourette, is 
there was a reporter in the hearing the entire time from the 
local Savannah paper who wrote the article and said--the 
headline of the article was, "The Judge Was Firm But Fair." 
that was the man that was in the hearing the whole time. What 
happened in that case was that it began about April, I think, 
and the complaint was filed, and 20 days later, an answer. And 
then we had a prehearing conference on the basis of motions 
filed by counsel. The depositions, some were granted. I can't 
remember all of them. But I granted various depositions, one 
which was for a docking master, who was the principal tugboat 
operator there, is usually tugboat operator, and he was on the 
vessel that was at the dock.
    But I should mention, this was a very serious case. This 
was a--the charge in the case, there were two charges of 
misconduct and two charges of negligence. I dismissed one 
charge of, one of each of the charges and found proof of one of 
each of the charges. Essentially the case involved a large 
tanker over 600 feet going at 14.1 knots down a narrow channel 
of the Savannah River past the LNG unloading facility where a 
tanker was actually unloading liquid natural gas. All of the 
testimony in the case was no one goes by that facility at less 
than--at more than their steerage way. It is a very, very 
serious possibility of danger.
    Mr. LaTourette. I think the wake caused the gangways to 
collapse.
    Judge Fitzpatrick. It is lucky no one got killed. Not only 
did the gangway collapse, but all the lines were severed. The 
vessel broke all its lines and was then recovered as it was 
moving away from the dock. The case began in April. As I said, 
we had a prehearing conference when motions were filed for 
discovery. And I granted some of them and denied some of them. 
I think I granted those ones. And then the case proceeded in a 
normal fashion. And then, under the regulations, everybody is 
required to exchange the identity of witnesses and send in all 
the exhibits 15 days before the hearing. So 15 days before the 
hearing, the Coast Guard did that, and so did counsel for the 
respondent. Eight days before the hearing, another series of 
depositions was required. Eight days before a hearing, 
including weekends, provides no opportunity for anybody to get 
together, transcribe the depositions and everything else. In 
addition to that, the rules require 10 days for a response by 
the other party. I would never grant depositions 8 days before 
a hearing. It would have delayed the hearing. So I indicated it 
was unduly burdensome. And also the focus of the case was on 
the pilot. And the charges were negligence and misconduct. As I 
said, half the case was found proved. Importantly, the part of 
the case that was found proved was that he was negligent in the 
speed with which he went past that facility. I suspended his 
license outright for 8 months. The Coast Guard was seeking 
permanent revocation.
    I went down there again after I issued my--I came back, had 
the hearing, came back and issued my decision. But I wasn't 
sure what to do with him because he was kind of an outsider a 
little in the community. The State pilots seemed to be lining 
up against him. So I went down, and I had a hearing on the 
sanction. And he testified, and he convinced me that this was 
oneinstance, but the other instance wasn't bad. So I felt that 
because of the seriousness of the event and that I suspended 
him outright for 8 months, I thought it was a very fair result.
    Mr. Cummings. Judge Massey, I just want to go back to you 
for a second.
    And Mr. LaTourette, we will go as long as we have to go to 
get to the bottom of this.
    I wanted to be clear on what you are saying, because I 
don't want it to just be passed over one way or the other. But 
I want you to at least get out what you are trying to say. 
There was a meeting that Mr. LaTourette referred to on the, I 
guess it took place in February 2005. And then, lo and behold, 
the guideline memorandum comes from the chief judge about a 
month later; is that right? Is that accurate?
    Judge Massey. The guideline memorandum was issued on, I 
believe, March 7, and the meeting took place on February 24.
    Mr. Cummings. Now, tell us what your concerns are? Because 
in your written testimony, you imply that the meeting that took 
place on the 24th may have been more, not just about your 
conduct, but about a little bit more than that. And then, lo 
and behold, this policy letter suddenly appears addressing a 
number of the issues that were apparently discussed in the 
meeting; is that right?
    Judge Massey. Yes, sir. May I give you just a little more 
background?
    Mr. Cummings. Please.
    Judge Massey. In December of 2004, I became aware by 
speaking with Ken Wilson, who was at that time an attorney 
working out of the Baltimore office, that the MSOs at Morgan 
City and Mobile had put together a list of complaints about the 
way I conducted my hearings. They didn't like the way I looked 
at the IOs. They didn't like me leaning back in my chair during 
testimony. They thought I was just across the board biased in 
favor of respondents, a whole litany of things. In total, I 
think there were seven pages of complaints. Mr. Wilson sent me 
a copy of those complaints. And he and I had a number of 
telephone conversations about what to do to resolve this 
conflict that had arisen between myself and the personnel at 
Morgan City and Mobile.
    I offered to meet with the person who supervised all the 
investigating officers in Washington to try and iron some of 
this out. Mr. Wilson didn't think that that was a good idea. It 
seemed to me we needed to get some sort of dialogue going 
because my opinion was that they were upset with me because I 
was, on occasion, not in every case but on occasion, ruling in 
favor of respondents. And that had--I heard my first cases in 
August of 2004. And by the end of December, I don't know, I had 
heard three, four or five cases, I don't remember. And the 
discovery conflicts were just beginning, I believe late 
December, early January of 2005.
    So when Mr. Wilson called to tell me that this meeting had 
been set up in New Orleans, he said it has been agreed that the 
IOs are going to come to this meeting, and they are going to 
air their grievances about you, your demeanor in the courtroom. 
And I am going to be there, George Jordan is going to be there, 
and Megan Allison is going to be there. Mr. Jordan is the 
director of judicial administration.
    Mr. Cummings. What was the purpose of Mr. Wilson telling 
you all this?
    Judge Massey. Well, he was--I mean, I can't speak for him, 
but the chief judge had told me back in November, when he had 
first caught wind of the complaints, that he wanted me to talk 
to Ken about all of the stuff, because Ken was just a 
reasonable person. And the chief said that he didn't really 
want to be in the loop. So Ken tells me this meeting is going 
to take place, that he is going to be there; George Jordan is 
going to be there; Megan Allison is going to be there. And I 
was out of town on a case. There was never any question about 
my attendance.
    Well, Mr. Wilson called me and he told me, he said, I'll 
call you after the meeting and let you know how it went. So on 
February 28, he calls me. And he says, well, we were really 
surprised when we got there because, first off, we were 
surprised by who was attending. And second off, we were 
surprised because, and these are his words, and I quote, 
discovery was the paramount issue. And Mr. Wilson told me that 
they did, in fact, discuss by name three of the contentious 
discovery cases, or I should say cases where discovery was 
contentious, that I had ongoing at that time. And he said they 
specifically complained, among other things, that I granted too 
many depositions and interrogatories. And they made some other 
complaints about saying that I rode roughshod over the IOs and 
that I humiliated them.
    Mr. Cummings. Let me say this, but I am looking at the memo 
which was introduced by my friend Mr. LaTourette, and I am just 
quoting from page 2. And it verifies what you just said. It 
says here in part in paragraph 7, at the end of paragraph 7, it 
says, The judge will raise issues and lead the respondent in 
filing discovery, interrogatories, depositions and subpoenas. 
In addition, the judge--talking about you--allowed further 
discovery before the completion of initial discovery as 
provided in the regulations. It goes on to say in the next 
paragraph, it was expressed that subpoenas do not have to be 
complied with unless they are relevant to the case, and it goes 
on. So, go ahead. I just wanted to let you know that the memo 
that was introduced by Mr. LaTourette is verifying; although we 
don't have a witness from the meeting, we do have the 
memorandum. And so a lot of the things that you just said with 
regard to discovery, what Mr. Wilson told you was discussed, 
are verified in this document.
    Judge Massey. And you are looking at a document that I have 
not seen.
    Mr. Cummings. Okay. Fine.
    Judge Massey. Just so you know.
    Mr. Cummings. This makes it even more credible. Go ahead, 
since you haven't seen it.
    Judge Massey. I'm sorry, you want me to go on with?
    Mr. Cummings. I want you to tell me--you made some pretty 
strong allegations, Judge Massey. And I want to get to the 
bottom of them. You have--in your written testimony, basically 
what you have said is that a meeting took place in February, 
and a lot of things were discussed, including discovery, the 
way you conducted discovery. You have said that you felt that 
you were--there were efforts being made to limit your ability 
to be independent and pursue due process as you felt that it 
was your duty to do. And then you said that then when the 
judge's guidelines came out, it sounded as if the very 
guidelines that he put out, that Professor Dash just talked 
about, came directly out of that meeting. Because it was just 
so much in sync with what you had--it was your understanding 
what happened in that meeting. So I am just trying to get to 
the bottom of it. I want you to be brief. But I want you to 
just tell us what you--you have come a long way from San 
Antonio, Texas, with a sprained angle, and we thank you for 
that, but we want you to get out what you want to say. Because 
I don't want it left here--you leave here in a situation where 
you have not been able to tell your story. I don't want it to 
be just passed over.
    Judge Massey. All right. One point, sir, that I think is 
important for the Committee to examine. There was a person 
present at this meeting, a Lieutenant Commander Keane, I think 
his name is K-E-A-N-E. He was a member of the District 8 legal 
staff. Lieutenant Commander Keane had been assisting the Morgan 
City investigating officers by drafting pleadings in at least 
two of these cases that were under scrutiny, the responsive 
pleadings; in other words, the response to interrogatories, 
that type thing. He was making the legal arguments about why it 
was improper for me to grant interrogatories or depositions or 
issue a subpoena or whatever. If you look at the language that 
are in those pleadings and you look at the memo that issued out 
of the chief judge's office on March 7, the theories about how 
the discovery regulations should be interpreted, and even some 
of the language, is the same.
    So, in other words, we have a document coming out of the 
chief judge's office on March 7 that tracks incredibly, too 
much for it to be a coincidence, with pleadings that were filed 
in cases pending before me 1, 2 months earlier. And Mr. Wilson 
told me that Lieutenant Commander Keane, quote, seems to be 
driving a lot of this stuff. Now, this is the same young man 
who, when I had an on-the-record conference in a case on March 
22 and I was questioning him about some ongoing discovery 
issues in that case--this is the third case of the trilogy--it 
came out during that conference that he did not know that 
mariners had a right to due process at S&R hearings; he didn't 
know that. And it clicked then in my head, well, now I 
understand why he is making all of these ridiculous arguments 
in these pleadings, because they never made any sense to me. 
And when he finally admitted to me under questioning that, no, 
due process is not applicable to these proceedings, then I 
went, oh, that is the problem. He doesn't know that. And then I 
spoke to his commanding officer the next day, who dropped in on 
me, Commander Simons, who, once again, was trying to get me to 
talk about how I viewed discovery. And I refused to do so 
because I thought it would be an ex parte conversation. He 
tries to stick up for this guy saying, oh, well, you know, he 
misunderstood. And I said, oh, no, no, no, he didn't 
misunderstand; he just flat doesn't know that due process 
applies to these hearings. And I was just stunned.
    Mr. Cummings. I got you.
    Professor Dash, assuming what Ms. Massey said is accurate, 
you have a meeting with the parties that we have already 
described, the next thing you know you have got a memo that 
comes out seeming to be right in line with cases that are--I 
guess they were still pending, Judge Massey?
    Judge Massey. Yes, sir, that's correct.
    Mr. Cummings. Does that concern you?
    Mr. Dash. Yes it does. I will admit I am not objective on 
this. I am a little prejudiced. Back in the 1970s, when I 
participated in some of the hearings on independence of ALJs, 
the big fight was to take away from the agencies any authority 
to discipline ALJs. And it even went so far that pay was again 
given to the OPM, even to the extent that the pay scale of a 
specific ALJ, recommendations of the agency would be ignored by 
the OPM. That was in the law. Congress took that out in 1999. 
It is long-winded, but what I am getting at is that the ALJ's 
independence is very much dependent on the fact that the agency 
does not have any real discipline authority over them; that if 
they have a problem, the place they go is to the Merit 
Protection Board claiming this ALJ is not doing their job.
    From what I see here, if true, and I have got to stress if 
this is really occurring, an ALJ feels under the pressure that 
the agency can control their future and their destiny, 
depending on how they act as an ALJ. And, yes, that troubles me 
a great deal, because this can impact on their career, their 
pay and possibly even their job. And that is very dismaying 
because that goes against the whole idea of an APA hearing or 
what the ALJ stands for.
    Mr. Cummings. Did you have a comment, Mr. Hewig?
    Mr. Hewig. I would only add, Mr. Chairman, that as a 
practitioner before those ALJs, I would be very troubled if I 
were to conclude that that type of interference or influence 
were extant.
    Mr. Cummings. All right. We are going to break now. We have 
got three votes. We should be back here in about 20, I guess 20 
minutes.
    [Recess.]
    Mr. Cummings. The gentleman will resume the hearing. 
Everyone will be seated, please.
    Mr. LaTourette.
    Mr. LaTourette. Thank you very much, Mr. Chairman.
    And thanks to our witnesses for your patience while we 
conducted business on the floor.
    I want to explore two areas that I talked about in my 
opening remarks. And the first is this whole issue of 
settlement. And I heard what you said, Judge Fitzpatrick, about 
how you dealt with the case that was in the newspaper article. 
But the allegation has been made that we have mariners who are 
copping pleas, if you will, because they are so afraid of the 
system, and they are thereby being forced into settlements. And 
I quoted part of the Federal regulations. It indicates that, in 
making a settlement, the mariner must make an admission of all 
of the pertinent facts in the complaint against him to reach 
that settlement. And so I guess, first, I would ask the three 
former Administrative Law Judges, am I correct in that, that in 
order to enter into a settlement with the government, the 
mariner needs to make an admission of the facts in the 
complaint against him?
    Judge Fitzpatrick. Yes.
    Mr. LaTourette. And do you have a different answer, Judge 
Massey or Judge Denson?
    Judge Denson. I didn't have experience under that rule.
    Mr. LaTourette. Okay.
    And Judge Massey.
    Judge Massey. You are correct. May I add a comment?
    Mr. LaTourette. Sure you can say whatever you want.
    Judge Massey. You were a public defender.
    Mr. LaTourette. I was.
    Judge Massey. I was a public defender. We all know that 
people sometimes say things are true that are not just to get 
out of the mess that they are in.
    Mr. LaTourette. Sure. And I think I brought that up with 
the Alfred pleas.
    Mr. Hewig, did you have something you wanted to say about 
that?
    Mr. Hewig. I did, Mr. LaTourette. I have worked from 
settlement agreements that the Coast Guard prepares, not from 
the actual regulation. They make citations to the regulation. 
But my practice and experience has been, and I have so advised 
my clients, that the only admission they are obligated to make 
is to the jurisdiction of the Coast Guard over the license. And 
beyond that, I have specifically advised them, and it has been 
my practice, that in settling a case with the Coast Guard, you 
are not admitting to the truth of the specific allegations in 
the complaint.
    Mr. LaTourette. I appreciate that very much. To the three 
former Administrative Law Judges I would pose the question--
because this is a serious allegation in this newspaper article; 
it is a serious allegation in other venues as well--was it your 
experience, Judge Fitzpatrick, that mariners were being--
entering into these agreements because they were afraid that 
the system was stacked against them?
    Judge Fitzpatrick. No.
    Mr. LaTourette. Judge Denson.
    Judge Denson. When people agreed to the complaint, I never 
sensed that there was a reason behind, that they were afraid or 
they were being forced into it. I think they were just trying 
to avoid further, I don't want to say litigation, but further 
processing.
    Mr. LaTourette. And Judge Massey, your observations on 
that.
    Judge Massey. I would say that, some of the time, they were 
agreeing to it because they thought it was a fair settlement. 
But I did have cases where there was an intimation that the 
person was afraid to go forward with a hearing because they 
were either intimidated by the process or they had been told by 
an investigating officer that, if you will settle this case, 
I'll give you X. If you take this case to hearing, we are going 
to ask for revocation.
    Mr. LaTourette. And then that, to me, is a plea bargain. 
But the question I would have to each of you is, I would think 
as a judge, I mean, when we would do Alfred pleas, and I don't 
have experience like you have experience, but when we would do 
Alfred pleas, if the judge began to get squeamish and thought 
that there was something funny going on, don't you have the 
right to reject that settlement agreement?
    Judge Massey. No. Under the regulations, if the settlement 
agreement complied with the language required by the 
regulations, we did not have the authority to go beyond, or 
excuse me, behind that and look into the allegations 
themselves. We had no authority to do that.
    Mr. LaTourette. Judge Fitzpatrick, if you as an ALJ reached 
a conclusion or had a suspicion that the person had entered 
into a settlement agreement for some illegal purpose, they have 
been bribed or made payment of money, you didn't have the 
authority to reject that settlement agreement?
    Judge Fitzpatrick. You have the authority to reject the 
settlement agreement. You have that distance in broad 
discretion. It is not true you don't have the authority.
    Mr. LaTourette. Let me talk about the hemp oil business, 
because it is my understanding that the brother of the reporter 
for the Baltimore Sun who became the unhappy mariner who then 
went to another reporter at the Baltimore Sun to produce the 
justice capsized article, the defense in that case had to do 
with this hemp oil business. And again, in my opening remarks, 
I talked about the fact that, in the Code of Federal 
Regulations, because the allegation is that somehow the chief 
judge has gone on a lark and has made up a standard relative to 
hemp oil being a defense for a positive test for marijuana by a 
mariner, based upon your knowledge to all three of you, is my 
understanding correct that the Department of Transportation has 
included in the Code of Federal Regulations a specific 
admonition that you can't use hemp oil as a defense for a 
positive marijuana test?
    Judge Fitzpatrick. I think, as you indicated, Mr. 
Representative, yes.
    Mr. LaTourette. How about Judge Denson?
    Judge Denson. I have not much understanding of that. But my 
understanding is that applies to a medical review officer and 
not necessarily to an Administrative Law Judge at a hearing.
    Mr. LaTourette. Well, Mr. Chairman, I would ask unanimous 
consent that that portion of the Federal regulations be 
admitted into the record.
    [Information follows:]

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    Mr. Cummings. So ordered.
    Mr. LaTourette. And then, Judge Massey, to you, do you have 
a different understanding?
    Judge Massey. My recollection is that, when I went to an 
initial training session, actually the month before I 
officially became a Coast Guard employee, a case with that 
defense had just been remanded by the NTSB to the Coast Guard. 
And there was some discussion about the hemp oil memo at the 
conference. And my recollection is that there was a lag time 
between the date that the chief judge issued the hemp oil memo, 
which I believe was in 2001, and the date that the Department 
of Transportation amended its regulations. I can't swear to the 
specifics of that, but I think there was a lag time.
    Mr. LaTourette. Okay. Lag time notwithstanding, does 
anybody not believe today that the code of regulations in Title 
49, according to the DOT, indicates a more direct view as an 
Administrative Law Judge that you can't consider the hemp oil 
defense on a drug test?
    Judge Fitzpatrick. No question.
    Judge Massey. The problem with that, sir, is that if the 
C.F.R. Was amended in 2003 and you have a case before you that 
the act occurred in 2002, you can't retroactively apply that 
law.
    Mr. LaTourette. I am not going to quibble with you on that. 
I am saying today if a mariner has a positive marijuana test, 
does anybody dispute the fact that you can't use the hemp oil 
defense?
    Mr. Chairman, I would also ask unanimous consent to put 
into the record the National Transportation Safety Board 
judgment or opinion of June 11, 2003 in the case of Thomas H. 
Collins v. Christopher Dresser if that is all right with you.
    Mr. Cummings. Can we get a copy?
    Mr. LaTourette. I will be happy to give you a copy.
    Mr. Cummings. All right.
    [Information follows:]

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    Mr. LaTourette. And then pending my unanimous consent 
request I would just indicate that, I don't know if this is the 
case that you were talking about or not that was the subject of 
discussion, but in this particular matter, my understanding is 
it was remanded by NTSB back to the Commandant, because, in 
that case, the judge, Judge Archie Boggs, indicated that, at 
dinner after he had heard the case, he found out that his son, 
who is a lawyer, actually represented the hemp oil company who 
was involved in a lawsuit. And there was some internal 
discussion about whether or not he should have recused himself. 
The conclusion was reached that he shouldn't have. And NTSB 
then remanded it saying, do you know what? You probably 
shouldn't have sat on that case, and then it went to another 
judge who was mentioned in the Sun article. So if the 
allegation is that somehow the system is stacked and fixed 
against mariners, I think that this guy was treated--I mean, it 
is working out for him in that regard. And that is why, subject 
to you getting a copy of it, Mr. Chairman, I would like to have 
it admitted into the record.
    Mr. Cummings. So ordered.
    Mr. LaTourette. And then the last question, I would ask you 
all if you are familiar with a former Administrative Law Judge 
by the name of Lawson?
    Judge Fitzpatrick. Yes.
    Mr. LaTourette. Good guy? Bad guy?
    Judge Fitzpatrick. Judge Lawson's position was misstated 
earlier in this proceeding. Judge Lawson, he was a retired 
judge who was taken on by the program for 1 year under the 1 
year contract. He didn't know hardly anything about the 
program, quite frankly.
    Mr. LaTourette. Judge Denson, did you serve with Judge 
Lawson?
    Judge Denson. No, I did not.
    Mr. LaTourette. Judge Massey?
    Judge Massey. I met Judge Lawson at that June 2004 training 
session I just mentioned, and then I never saw him again.
    Mr. LaTourette. And Judge Massey, you mentioned in your, I 
assumed it was a hypothetical case, that you talked about where 
the merchant mariner was in the headquarters and so forth. And 
I made a note that you said that the Coast Guard official 
suspended his license, took his license away from him prior to 
an adjudicatory hearing. Did you say that?
    Judge Massey. No, sir, I did not. I said that the hearing 
took about 30 minutes, and at the end of the hearing, the judge 
announced a suspension for 6 months.
    Mr. LaTourette. I must have misunderstood you. Because I 
thought you said, prior to the hearing, that the officer took 
his credentials away.
    Judge Massey. In my scenario, that is true. On cases the 
IOs do take the mariner's credentials upon the filing of a 
complaint, that does happen.
    Mr. LaTourette. Again, I am trying to learn here. It is my 
understanding that the credentials were not suspended during 
the proceedings.
    Judge Fitzpatrick. There is a--in the normal case, that is 
correct; they are not suspended. But there is a specific 
provision in the regulations which is called an expedited 
requirement for an expedited hearing, and it is authorized 
under 7702, where the Coast Guard can, because of safety 
reasons, somebody being under the influence of drugs or 
alcohol, can go aboard a vessel and take that individual's 
license or document. If they do that, then they must 
immediately contact the docketing center, and the hearing must 
be held within 30 days. So it is an expedited procedure, and it 
is to protect safety of life and property at sea.
    Mr. LaTourette. And then the last question I would have, 
the reason I asked you about Judge Lawson, he is quoted in the 
Baltimore Sun story about the memorandum issued by the chief 
judge. And his observation, quoting directly from the article, 
Massey's experience contrasts with that described by former 
Judge Lawson who said he suspects that what his former 
colleague perceived as pressure was actually Ingolia's 
attempts--perhaps awkward or heavy-handed--to counsel a judge 
that he might have viewed as a rogue. My experience with Judge 
Ingolia was that he left me alone to do what I needed to do.
    Do you think that the chief judge considered you to be a 
rogue.
    Judge Massey. He never used the word rogue with me, sir. He 
told me I was a problem.
    Mr. LaTourette. Mr. Chairman, thank you. I think, based 
upon Judge Massey's extensive observations about this meeting 
that she didn't attend, it really would be nice if we could 
have Mr. Jordan and Mr. Wilson at a subsequent event.
    Mr. Cummings. Thank you very much.
    I want to make sure that we maintain the very balance that 
we said that we wanted the ALJs to maintain. And I want to make 
sure it is maintained in this hearing.
    And therefore, I want to go back for a moment. And Judge 
Massey, just tell us briefly about your credentials.
    Judge Massey. I graduated from undergraduate SMU in Dallas 
in 1974; law school, 1977, at SMU. Opened my own law office 
initially; did that for a few years. Associated myself with 
another lawyer who did State defense work. Went back out on my 
own. Worked with the Department of Energy in the special 
counsel's office for 6 and 1/2 years. Was a State prosecutor 
for 4 years. Went back out on my own. Associated myself for 20 
months or so with a lawyer who did exclusively Federal white 
collar criminal defense work. Went back out on my own. Became a 
public defender for 2 years. That was the first 20 years of my 
licensing.
    And then, in September of 1997, I was picked up as an ALJ 
for Social Security. Worked for them until September of 2001 
when I became employed as an ALJ for the Federal Energy 
Regulatory Commission here in Washington. Left that job to take 
the Coast Guard job in July of 2004.
    Mr. Cummings. I just wanted to have some background there. 
And I am going to ask you some questions in a moment. I want to 
go back to some of the things that you have said.
    But right now, I want to address some questions to 
Professor Dash, and perhaps Mr. Hewig. I am looking at a--in a 
few minutes, we are going to have testimony from the Coast 
Guard. And one of the things that they are going to say, Rear 
Admiral Salerno is going to say, is that, and this is from his 
written testimony, is that there is a certain level of 
independence. And he basically said this, Mr. Dash; that these 
ALJs are supposed to have--let me just quote a piece of his 
testimony, because I want you to comment on this. He says, in 
1999--now this is the Coast Guard. You will probably be gone 
since you have overstayed, I am sure, your allotted time. But 
he said, the procedure rules for handling Coast Guard ALJ cases 
were updated to reflect the best practices in administrative 
law. These new rules were based on the model rules of 
administrative procedure proposed by the administrative 
conference of the United States and new procedural rules 
developed by the Department of Transportation.
    Now, this is what I just want you to comment on. The Rear 
Admiral says the intent of this update was to provide 
additional due process protections and transparent and 
consistent procedures to both the mariner and the suspension 
and revocation process. For example, the new rules provided for 
modern motions practice, expanded discovery and detailed 
procedures for handling evidence and conducting hearings, end 
of quote. When you look at the--and then I want to go briefly 
to the letter, I guess memo, memorandum dated March 7 from the 
chief judge to the other judges. And it says, an ALJ should not 
rely on Federal Rules of Civil Procedure for discovery matters. 
You are familiar with that memo, are you not?
    Mr. Dash. Yes, sir.
    Mr. Cummings. I don't want to take anything completely out 
of context, but you know the context I am sure.
    Mr. Dash. It is his guidelines; I believe it is.
    Mr. Cummings. Yes, yes. It seems to me that--first of all, 
is Rear Admiral Salerno correct in his statement? Do you agree 
with that statement?
    Mr. Dash. To the extent that he is indicating that they 
want to give more due process and that they want to give good 
discovery, yes, I have no objection to it.
    Mr. Cummings. And then, when you go to the guidelines for 
discovery request written by the chief judge, and that portion 
that talks about not relying on Federal Rules of Civil 
Procedure, it seems like there is a--they don't seem to go hand 
in hand. Because I assume that the Federal rules are broader 
with regard to discovery. The chief judge is saying, you know, 
basically they don't apply, I guess, to these cases. Am I 
missing something.
    Mr. Dash. No, you are right. He does say that the ALJ 
should ignore the Federal Rules of Civil Procedure. As I 
indicated before, I was puzzled by that because the regulations 
seemed to imply that they can use the Federal Rules of Civil 
Procedure. And as you indicated, Mr. Chairman, the Federal 
Rules of Civil Procedure discovery are pretty vast and very 
liberal. In fact, I would not even recommend that agencies 
should comply with them. They go perhaps too far, depending on 
what the agencies need and want to do. But the indications from 
which you just read to me is that the purpose of the 
regulations and their new rules was to expand discovery and 
expand the procedural due process for the mariners.
    The memorandum or guideline, and that is what bothered me a 
bit about it, seems to be saying that the regulations were 
designed to limit in the area of discovery particularly. To 
limit discovery, or at least he was saying that should be the 
interpretation, I think, if so, that should be done by frankly 
doing it in the regulations. I might add, there is nothing 
wrong; in other words, if the Coast Guard wishes to limit 
discovery to some of the more basic things, they can do it by 
regulation as long as they don't interfere with the procedure 
of due process.
    Mr. Cummings. Let me ask you this, Professor Dash. Does any 
agency allow its officers to refuse to comply with a subpoena?
    Mr. Dash. I was shown during our break a memo, or I guess 
it is a report, which does surprise me, in which, apparently, 
the Coast Guard was saying they were not going to comply with a 
subpoena. That does surprise me a great deal. Normally, of 
course, you would file a motion to quash a subpoena. I 
understand that, in the Coast Guard, there is no interlocutory 
appeals, meaning that they can't appeal if they lose with the 
ALJ immediately to the Commandant. But it would seem to me that 
you just don't refuse to comply with a subpoena.
    Let me explain that a little bit more, because, way back in 
my distant past, I have handled hearings for the government. 
And even when you think that a subpoena by the ALJ really is 
not relevant, you comply unless, unless it is really onerous, 
that they want a room full of--in other words, that you have an 
extraordinary circumstance. But normally, you just comply with 
the subpoena. To me, to say to an ALJ, I am not going to 
comply, is, I think, demeaning and undercuts, of course, what 
an ALJ stands for. So unless there was some really good reason, 
such as it would be almost impossible to comply with it, for 
them to say to the ALJ, we refuse to comply is bothersome.
    Now, there are sanctions in the rules as to what the ALJ 
can do, such as taking the negative imprints or proving what 
was attempted to be proved by the discovery. But if that 
doesn't work, because I don't even know what the evidence is 
that is being asked for, they can, in the interest of justice, 
actually dismiss. Now, that is not in the sanctions part of 
discovery. But you will find, in 103, it does say that the 
ALJs, as well as the Commandant, can, unless it is against the 
law, more or less waive the rules and take whatever action that 
they deem necessary. So, to me, the ALJ, if I was in an ALJ's 
position and the government refused to comply with a subpoena 
without having really a fairly good reason, certainly dismissal 
would be the answer. And of course, then the government can 
appeal that up to the Commandant, as I understand it. Now, it 
is long-winded, but I never have frankly heard of the 
government refusing to comply with a subpoena of an ALJ unless, 
again, you have extraordinary circumstances.
    Mr. Cummings. Professor Dash, Mr. Hewig, I always tell my 
office, tell me what, so what and now what. And Mr. Hewig 
talked about what, so what and the now what. And he made some 
suggestions. Do you remember what he said about his 
suggestions? Does he have to repeat them? Because I wanted to 
get your comments on his suggestions as to how to remedy some 
of these situations, if appropriate.
    Mr. Dash. I would feel more comfortable if I could hear 
them again.
    Mr. Cummings. Why don't you briefly, Mr. Hewig, just run 
down your recommendations? By the way, we do appreciate you 
making recommendations. But go ahead.
    Mr. Hewig. Thank you, Mr. Chairman. My recommendations are 
three-fold: first, that ALJs must be independent, and I 
referred to the FAA model under which decisions made for 
license or civil penalty matters by the FAA, the Federal 
Aviation Administration, are adjudicated by Administrative Law 
Judges that are outside the employment of the agency. In the 
case of the FAA, it is the NTSB.
    Mr. Cummings. All right. Stop there.
    Your opinion, Mr. Dash.
    Mr. Dash. Again, I would have to preface it by saying, I am 
prejudiced. I have always been for the position that 
Administrative Law Judges making decisions impacting on 
agencies should be outside of the agency. Years ago, it was for 
actually an ALJ corps. But I certainly like the idea that you 
would use ALJs who are not part of the agency itself. And as 
you know, this is a very big debatable thing in advent law. But 
yes, I would like that recommendation very much.
    Mr. Cummings. All right. Number two, Mr. Hewig.
    Mr. Hewig. Number two was that some limited discovery 
should be granted as of right. And by that, I mean, that it 
should not be within the discretion of the Administrative Law 
Judge. The guidelines, or I should say the regulatory 
prescription for discovery that were amended and enacted in 
1999 have in fact, by both Judge Massey's information and also 
my experience, been used to stifle discovery rather than to 
encourage it. I think that something such as, for example, 10 
or 15 interrogatories as of right and 5 to 10 document requests 
as of right would go greatly to accelerate the pace of the 
hearing and perhaps also serve as a catalyst to settlement.
    Mr. Cummings. Professor Dash.
    Mr. Dash. I would go along with the recommendation if you 
want to set a minimum of documents. I would be a little 
constrained about having any requirement for so many 
interrogatories or depositions taken out of the discretion of 
the ALJ. The reason I say that is, there were some obvious 
hearings where the ALJ is one who is best to determine whether 
or not you need actual depositions or interrogatories. To make 
it a mandatory type thing, I question that; I question that, 
where you say there must be a minimum, if requested, so many 
interrogatories. That gives a certain control to the 
respondents, and it takes it away from the ALJ. The whole point 
of administrative hearings is that you want to expedite them; 
you want to make them fair but also reasonable; and that the 
Administrative Law Judge should be given that discretion. If 
they feel there is a need for 5 or 25 interrogatories, that 
they can order them. But if they don't feel there is a need for 
it in this case, I think that should be left to them.
    Mr. Cummings. Mr. Hewig, the last one.
    Mr. Hewig. The final one related to evidence and findings 
relating to science and medicine.
    Mr. Hewig. In those instances, in those matters where a 
legal outcome is determined by a regulation involving 
scientific or medical evidence or measurement--and here I 
specifically refer to the first case in my written statement in 
which a mariner was found to have, quote, "substituted" his 
urine specimen because the creatinine count in his urine sample 
was below a cutoff--I say "arbitrary" and it was--of 5 mg per 
DL. Because he came in at 3 mg per DL, the regulations 
compelled a finding of substitution and then compelled a 
suspension of the license. That decision occurred in 2000.
    In 2001, the Coast Guard and the Department of 
Transportation undertook a review, and in fact, they reversed 
themselves. Their science was quite simply wrong, and the 
subsequent regulation amendment amended that 5 mg per DL 
creatinine lower-level cutoff down to 2.
    So the point here is that science is an ever-changing 
field, and those absolutes do not work to justice, and my 
recommendation here is that where you have got regulations that 
relate to the submission and rely upon scientific evidence or 
medical evidence, that you ought to make it not absolute but a 
rebuttable presumption so that evidence can be brought in to 
show, if it exists, that a particular mariner's test results 
are outside the normal pool of probability for good cause 
shown. It should not be absolute. It should be a rebuttable 
presumption on a case-by-case basis.
    Mr. Cummings. Got it.
    Professor Dash.
    Mr. Dash. I would have a problem with that recommendation 
because the purpose of rules and regulations is to, more or 
less, give definitive answers to certain things. What I am 
getting at is that, if in the process of coming out with 
regulation, they have the support and the evidence--the 
substantial evidence--to say that 3.2 or whatever it is is no 
good, that should be permitted, and that should control the 
hearing because, otherwise, you are going to be having some 
hearings that can go on and on and on in which you have got to 
have experts coming in, testifying. It is a problem because 
many hearings, as I understand, do not even have lawyers. It is 
the respondent who is representing himself.
    I just think it complicates it, because there is an answer. 
The answer is that if there is evidence that the standard in 
the reg is a problem, well, then you can always recommend that 
the regulation be amended, and this can be done, frankly, by 
lawyers from the outside if they wish.
    Anyway, it is long-winded again, but I am bothered by that 
kind of a mandatory thing that you must hold a hearing to 
decide whether it is 3.2 or 5.2.
    Mr. Cummings. Mr. LaTourette.
    Mr. LaTourette. Thank you very much, Mr. Chairman. I just 
want to sort of close my thoughts on this panel.
    One of the things that propelled us here was an article 
that made as its premise that there were 6,300 cases filed, and 
the mariners only won 14 times. I think everybody would agree 
that if those were the true facts, that something really is 
wrong.
    What I discovered today, at least from your testimony, 
Judge Fitzpatrick, was as you described the case, as was 
referenced in that article, you had an LNG potential accident 
where someone could have been killed. And despite the fact that 
the government was seeking revocation of the credentials, you 
went the extra step and made it 8 months rather than permanent 
revocation. I do not find anything fixed about that case.
    Judge Massey, I certainly never meant to cast any 
aspersions about your career. I think it has been 
distinguished, and as a matter of fact, your testimony 
indicates to me that you were a very thoughtful judge. And as 
to the case that you described--and I assume the document that 
the Chairman was questioning--something about the subpoena, if 
I understood your testimony right, when the government did not 
produce documents or have additional discovery that you had 
ordered, you dismissed the case.
    Isn't that what you told us?
    Judge Massey. That is correct, sir.
    Mr. LaTourette. Yes, that is exactly what you are supposed 
to do.
    Professor Dash, just from my experience, people did not 
comply with discovery all the time, and there was a remedy. I 
mean, you got rid of the charge; you sanctioned them; you fined 
them; you put them in jail--whatever the rules permitted you to 
do--and I think Judge Massey did the exact right thing. So I am 
not leaving this panel with the belief that somehow this system 
is fixed against the mariner. I am leaving it with the sense of 
perhaps what Judge Lawson said in the article, that the chief 
judge was a little heavy-handed in how he interpreted the 
regulations. I think maybe we should look at that.
    I think Mr. Hewig's observation and Professor Dash's 
observation about having the finder-of-fact outside the agency 
is a good one. I think I can be supportive of that, and that 
makes sense to me, but I am not finding that this is somehow, 
as was suggested in print, a system that is fixed against the 
mariner.
    I think I know your answer, Judge Fitzpatrick, but do you 
disagree with that?
    Judge Fitzpatrick. Oh, no. I mean it is definitely not 
fixed against the mariner.
    Mr. LaTourette. Judge Denson, do you think that it is fixed 
against the mariner?
    Judge Denson. I think to the degree that it can be a bad 
influence for the mariner the way the regulations are applied 
and where the regulations are--what they are, I think, can be 
looked at as a negative towards the merchant mariner.
    Mr. LaTourette. But you, as an Administrative Law Judge, 
didn't you always treat your cases and the litigants fairly?
    Judge Denson. I can say, in all honesty, I did; and in 
fact, on two occasions, I think I bent over back too far with 
some Yemen men who appeared in front of me because I think I 
had some prejudice there, and they were buying documents up in 
Washington State, Seattle, to get an endorsement on it. And I 
really should have revoked their licenses, and I tried to be--I 
think I ended up--I should have been more severe in my order 
against them. But those are the only two times I can think of. 
Other than that, I think I do the very best I can with the 
facts and with the information that is given before I give the 
sanction.
    Mr. LaTourette. Then, Judge Massey, I assume from your 
testimony you always gave everybody a fair shake in your 
courtroom, did you not?
    Judge Massey. Yes, sir, I did, and I paid a price for it.
    Mr. LaTourette. I understand your testimony perfectly, but 
again, this notion--I think there are two separate issues here. 
One, is the chief judge's interpretation of the regulations 
heavy-handed or is it, as the professor suggested, perhaps not 
the way that it should be? We have the issue that Mr. Hewig 
brought up that perhaps the ALJ should be outside the umbrella 
of the Coast Guard itself.
    The second issue is--and what are there, seven 
Administrative Law Judges and one chief? Is that what it is? 
Does anybody suggest that any of these men and women--with all 
of the experience that you have talked about, Judge Massey, and 
I assume all of the experience that both of you have, that they 
are not treating mariners fairly in this country?
    Judge Fitzpatrick. I think they are being treated fairly.
    Mr. LaTourette. Judge Denson.
    Judge Denson. I have knowledge of some where they have not 
been treated fairly. But on the whole, I think they are well-
intentioned ALJs who are trying to do their jobs.
    Mr. LaTourette. Judge Massey.
    Judge Massey. I have specific knowledge of at least one 
case where a mariner was not treated fairly by another judge, 
and that is in the documents I submitted.
    Mr. LaTourette. Okay. Was it a discovery issue?
    Judge Massey. No. It was a case where the chief judge, or 
someone on his behalf, had communicated to the sitting judge 
how the case was going to come out.
    Mr. LaTourette. Is that the fellow you had lunch with?
    Judge Massey. Yes, sir, it was that instance.
    Mr. LaTourette. Okay. That was alarming to me because I 
read that you were a spectator in his courtroom, that you had 
lunch with him and that he made some observations. I think that 
was a pretty serious allegation, and I think that was Judge 
Brudzinsky. Is that his name?
    Judge Massey. That is correct.
    Mr. LaTourette. I think we should have him together with 
Wilson and Jordan here, and let us get to the bottom of this.
    Thank you all for your excellent testimony. I enjoyed it.
    Mr. Dash. Excuse me, sir. Could I respond to one thing that 
you had mentioned?
    My problem with the saying "we will not comply with the 
subpoena"--and you had indicated that the judge went ahead and 
dismissed the case. I would recommend the interlocutory 
appeals.
    Why do I say that? As you well know, if you fail to comply 
with a subpoena in a Federal court, aside from the possible 
contempt, and you have the case dismissed, that is going to be 
supported by the appellate court. The problem here is that when 
it goes to appeal to the Commandant, he can overturn the 
dismissal, which undermines, of course, the ALJ.
    It would be better if they had an interlocutory appeal 
where, if the government felt that the discovery request or 
subpoena were wrong, and filed a motion to suppress that was 
denied, that they could take it then to the Commandant, rather 
than having the Commandant overturn the dismissal. That, to me, 
hurts an ALJ's status.
    Mr. LaTourette. I heard you say that. You know, the thing I 
love about working with the Chairman is that he is always 
looking at how can we make things better. So we asked you and 
Mr. Hewig those questions.
    So, on that list of things to do, would it be your 
recommendation that we look to modify that regulation that 
would provide for that interlocutory appeal if the government 
felt that an ALJ's order of discovery were not appropriate?
    Mr. Dash. Yes. So you do not have this absurd position 
where the government is saying to an ALJ, "No, I will not 
comply." then, of course, you have a dismissal, and then of 
course, the ALJ loses at the Commandant level.
    Yes, I would certainly recommend that they have an 
interlocutory appeal.
    Mr. LaTourette. I think that is a great suggestion.
    Judge Fitzpatrick. Mr. Chairman, may I make one comment 
with respect to what Mr. Hewig said?
    The scientific evidence that he is talking about has 
nothing to do with the Coast Guard. That whole determination 
with respect to the pH level and the creatinine level is done 
by the Department of Transportation in its scientific and in 
its drug section, and they have produced whatever the 
regulations or the memorandums are that govern the scientific 
testimony throughout the Department of Transportation, not only 
the Coast Guard but every other agency. So that when the Coast 
Guard is looking at that evidence, it is looking at the DOT 
determination with respect to the scientific evidence, not its 
own.
    Mr. Cummings. I want to thank all of you.
    Just to wrap this up, I think that we have a situation 
where I truly believe that the judges do everything in their 
power to do things fairly. That is not the issue.
    The issue seems to be, to me--and I am just listening to 
all of this--the heavy-handedness of a chief judge and to what 
degree that heavy-handedness crosses the line of the degree 
that an ALJ should have the right and privilege to be 
independent. It seems to me that is part of the problem. It is 
one thing to dispense justice. It is another thing to dispense 
justice when you feel like you have got to go over 50 million 
hurdles to do it. And that seems to me to be what Ms. Denson 
and Ms. Massey are saying.
    So, just to close this out, Ms. Massey--and I want to just 
finish this, your piece--on April 8, 2005, did you have a 
meeting with Chief Judge Ingolia in Baltimore?
    Judge Massey. I did.
    Mr. Cummings. I want you to be brief because we are going 
to have to wrap this up. Who else was present at that meeting?
    Judge Massey. Initially, it was myself, Judge Ingolia, 
Judge Jordan, Megan Allison, and Ken Wilson.
    Mr. Cummings. Did the chief judge discuss his views on what 
types of prehearing discovery were appropriate?
    Judge Massey. Yes, sir, he did.
    Mr. Cummings. During your meeting with the chief judge, 
were any of the issues that were previously discussed--during 
the meeting of staff, of the District 8 Legal Department, of 
the Marine safety officers, of the chief ALJ's office, and the 
Commandant's legal office already mentioned--brought up and 
discussed when you then met with the chief judge.
    Judge Massey. Yes, sir.
    Mr. Cummings. Can you tell us about that briefly?
    Judge Massey. In a nutshell, sir, he told me that I needed 
to stop allowing discovery in S&R cases; that I was never to 
require the Coast Guard to do one minute's more work than I 
wanted them to do; that I was never to rule against the Coast 
Guard unless there was absolutely, positively, no way I could 
get out of it; and that I should never follow a regulation if 
the Coast Guard were not in agreement with that regulation.
    Mr. Cummings. Now, Professor Dash, you will remember I just 
talked a little bit, a moment ago, about heavy-handedness and 
where the line is supposed to be drawn. And the reason why I am 
saying the things that I am saying is that, having practiced 
law for many years, I can tell you there were three cases in 
probably the 2,000 or 3,000 cases that I tried that stick out 
in my head, and all three of them were cases where I felt that 
my client was not treated fairly. I will go to my grave 
remembering those cases.
    They were not big cases, but I remember them, and I am just 
wondering. We talk about the appearance, not just whether 
injustice or fairness is there, but whether there is the 
appearance, and I am just wondering--and I do believe that in 
order for any justice system to survive, the parties must 
believe--now, I am not saying they are going to always be happy 
about decisions, but at least that they were treated fairly and 
that they had a shot when they walked into the courtroom.
    If what was just said were true by Ms. Massey, is that in 
any way in your opinion stepping across the line?
    Mr. Dash. I am stunned. And of course, I would love to hear 
what the Coast Guard has to say. But if, in fact, an ALJ were 
told that, I am stunned.
    For example, it is so much against the law. The government 
in these cases has the burden of establishing by a 
preponderance of the evidence, since they are the ones who are 
bringing the charge, to establish that in fact the mariner did 
something wrong.
    To say that you always rule for the government, unless it 
is something extraordinary, violates, frankly, the APA, and it 
violates their own statute. So I am not assuming, by the way, 
that this was said, and I am not assuming that is what was just 
said. It is just that if this is true, this is a violation of 
many, many statutes as well as, obviously, going against the 
whole spirit of what the APA is all about.
    Mr. Cummings. Last question.
    Out of everything that has been said--see, they can dismiss 
the chief judge. The chief judge can leave, but that does not 
necessarily solve the problem. What I am sure Mr. LaTourette 
was alluding to is, if we are to do anything here, we want to 
make sure that we put in place those things that will even--as 
best we can, help to avoid even the appearance of injustice. 
And so you all have talked about a number of things that we 
might be able to do that will, hopefully, last when we are 
dancing with the angels.
    So are there any other things that you all can think of, 
any of you, that we might do to--and I understand, Mr. 
Fitzpatrick, you have had wonderful experiences, and it has 
worked out fine for you. But clearly, there are some things 
going on here, and if we held this hearing until the middle of 
next year, we probably would not be able to get to the bottom 
of it, but there are some things.
    You have got the Coast Guard sitting here. You have got us 
sitting here, and all we want to do is to try to make a system 
of justice the very best that it can be. We cannot guarantee 
anything, but we can try to put those pieces in place that help 
to keep it on the straight and narrow as possible.
    Do you have anything else, Professor Dash?
    Mr. Dash. Yes. I think the one perfect idea is the one that 
has already been approached. If you take the ALJ Corps for the 
Coast Guard out of the Coast Guard, if the chief ALJ were not 
down the hall from the agency head, the Commandant, I think 
that would solve everything. It really would. It would solve, 
certainly, the appearance of impropriety, because I am a big 
believer that the bigger the separation you have from the fact-
finder--from the prosecutor or the from the agency--the better 
the system is; and if they could, just take the ALJs out of the 
Coast Guard and have them decide their cases from some other 
entity.
    A good example, for example, is looking at the National 
Labor Relations Board and how they operate, how they separate 
their ALJ group completely from the General Counsel's Office 
that does the prosecution. There are other agencies that are 
very similar, that do the same thing. What I detect in looking 
at this is not any bad faith or any evil, but if there is an 
appearance of impropriety, it is because the ALJs, the judges, 
are too closely connected to the prosecutors and to the agency 
itself, and they should be separated.
    Mr. Cummings. All right. Mr. LaTourette.
    Mr. LaTourette. Just one last observation, Mr. Chairman.
    I think what Judge Massey said is an unbelievable 
statement. As to Judge Ingolia, I will repeat I think he has 
been accused of criminal conduct and, if not criminal conduct, 
unprofessional conduct of the highest order. My belief is that 
he should have the opportunity to explain himself, and if he 
made those observations in that meeting to Judge Massey that 
occurred in Baltimore, Maryland, I think we should do something 
about it. But if he did not, I think he should have the 
opportunity to come and explain himself, because at the 
beginning of this hearing, I introduced the memorandum that 
came out of that meeting of April 8, 2005. This is a serious 
matter. This is the United States Congress. This is a public 
forum, and this man, in my opinion, whom I do not know, has 
been accused of pretty serious stuff.
    Mr. Cummings. Mr. LaTourette, let me be very clear.
    I agree with every syllable you just said. I think you know 
me well enough to know that when witnesses have appeared in any 
hearing, and if I feel that they have been not treated properly 
by Members of Congress, I make it clear that I have a problem 
with them. As a matter of fact, I have actually apologized to 
witnesses for the conduct--of the way they were treated by 
other Members of Congress. And the same goes for someone who is 
not here, particularly somebody of that stature. I would 
imagine, you know, those comments will be repeated in some 
periodicals and whatever.
    Let me say this: that we did ask for anybody who was in the 
system, the ALJ system, to just come forward, and we were not 
able to get the folks who we wanted. I promise you I will work 
with you to make sure--because I think you are absolutely, 
unequivocally correct. I think that anyone should have an 
opportunity--since we are here talking about fairness, that 
folks should have an opportunity to make sure that they give 
the other side of the story. And I promise and I commit to 
working with you to get not only the chief judge but the other 
two people who you also mentioned before us, too.
    In the meantime--did you have something, Ms. Denson? I 
thought you were raising your hand.
    Judge Denson. I wanted to make one last comment if I may.
    Mr. Cummings. Sure.
    Judge Denson. We are talking about all of us judges 
assuring you that we want to provide fair hearings and that we 
do our very best to do a good job. But the seamen still have a 
sense that they are not getting a fair shake; and we have to 
look at maybe other things, other than the ALJs' doing their 
job, to look at what is giving them the appearance that they 
might not be getting a fair hearing.
    I had some instances, I think I put in the paper, that said 
when we judges are asked to train IOs to put on cases in front 
of us, I believe I was the only one who refused, and I 
explained why. If I could provide the same opportunity to the 
respondents and their attorneys who are putting on cases, I 
would be glad to do that. But as to training the IOs to put on 
cases in front of us, we are the Coast Guard judge. They have 
got a one-upmanship over the respondents and their attorneys, 
and I thought that was an appearance of impropriety. See, I 
love to teach, but that is the only reason I would refuse to do 
that.
    Another thing is when a seaman walks into--no. I left in 
1996, but when a seaman walks into a Marine Safety Office 
building to have his case heard and the whole place is filled 
with the Coast Guard, and there you have your judge, sitting 
with the Coast Guard, and he comes in for his hearing, he is 
going to get a fair hearing in my book and, I am sure, in 
Peter's and in Judge Massey's.
    What is the appearance to that person and his attorney? He 
is surrounded by the Coast Guard, and that is an appearance of 
impropriety. They might be getting a good hearing, I can assure 
you with some of the judges I know they would be getting a fair 
hearing, but the appearance is not there, and they still are 
going to have that feeling.
    Mr. Cummings. Well, I want to thank you, and I want to go 
back to, of course, what Professor Dash said and, Mr. Hewig, 
that suggestion that the separation would be a good one, 
because I think that would cure--I think you are right, 
Professor Dash--it would cure a lot of this, even the 
appearance, because I do believe that the appearance--I mean, 
you know, one, people can say it does not matter how the 
respondent may feel or even how the Coast Guard may feel. But I 
just think that it is just so basic and so important and so 
American that folks believe, when they are walking into a 
courtroom or a hearing room, that they have a fair shot, if 
they just do what they are supposed to do, that they have a 
fair shot.
    I can tell you that in my practices--my practice over the 
years, even when clients lost, if they felt that they had had a 
fair shot--they may have been upset for a little while, but 
they never came back to me and said, "You know what? I really 
think that the deck was stacked against me before I got," 
except in the three cases that I mentioned.
    So, with that--if you all, by the way, have any other 
suggestions after, you know, you think about this a little bit, 
please get them to us. We are going to try to--I will tell you. 
This has been some very, very valuable testimony. We really do 
appreciate all of you. We know that we have inconvenienced you. 
We know that you are hungry, and so we are going to let you go. 
Thank you very much.
    The second panel come forward, please. Rear Admiral Brian 
Salerno and Captain Thomas Sparks.
    Both of you are going to testify, or just you?
    Rear Admiral, are both of you testifying?
    Admiral Salerno. Yes, sir. Both of us are going to testify.
    Mr. Cummings. Okay. Fine. I just wanted to know.
    Rear Admiral, thank you very much for being with us again, 
and again, we would like to have your comments--I do not know. 
I cannot tell you what to say, but it might be helpful during 
your opening, if you want to--if you want to. Let me just save 
you some time. You might want to comment on what you have just 
heard. You all asked to be separate, so you had your chance to 
hear what was being alleged, and so we will hear from you now. 
But I do note after reading your testimony that there was not 
one syllable--and I read it three times--that went to--there 
was a lot of information about the numbers but none that went 
to some of these allegations. And maybe that was intentional, I 
do not know--but you have 5 minutes.

     STATEMENTS OF REAR ADMIRAL BRIAN SALERNO, DIRECTOR OF 
     INSPECTION AND COMPLIANCE, UNITED STATES COAST GUARD, 
WASHINGTON, D.C; AND CAPTAIN THOMAS SPARKS, COMMANDING OFFICER, 
  MARINE SAFETY UNIT, UNITED STATES COAST GUARD, PORT ARTHUR, 
                             TEXAS

    Admiral Salerno. Good morning, Mr. Chairman, Ranking Member 
LaTourette, Members of the Subcommittee. Thank you for this 
opportunity to speak with you this morning on the Coast Guard's 
Administrative Law Judge, or ALJ, system. The intent of the 
Coast Guard's ALJ system and the marine investigative process 
through which mariners encounter the system is to ensure the 
safety of marine transportation and the public. Credentialed 
mariners are entrusted with enormous responsibility, often 
involving the safety of their passengers, their fellow crewmen, 
and the safe transportation of dangerous cargo, often through 
densely populated areas.
    The consequences of a safety failure involving the human 
element extend beyond the individual mariner, and for this 
reason, the Coast Guard and the marine industry expect a very 
high standard of performance. The vast majority of mariners 
faithfully carry out their duties in conformity with these 
standards. At the same time, the process we use to impose a 
sanction against a mariner's credentials, in those rare 
circumstances where it is necessary, is remedial in nature, not 
criminal.
    I want to assure the Committee from the outset that it is 
of paramount importance to the Coast Guard that the ALJ process 
in our field investigative procedures reflect fair treatment of 
the mariner. Of equal importance is that our procedures provide 
the required independence for the ALJs. It was to improve due 
process and to ensure fairness that our ALJ procedures were 
updated in 1999 so as to reflect the best practices in 
administrative law.
    Currently, the Coast Guard administers credentials for over 
200,000 U.S. merchant mariners. Each year, we take 
administrative action against a very small percentage of those 
mariners, less than 1 percent. Coast Guard investigating 
officers may initiate a complaint against a mariner's 
credential when there is evidence of misconduct, negligence, 
incompetence. Or a violation of law or regulation while serving 
under the authority of their Coast Guard-issued credential.
    The use of dangerous drugs by a credentialed mariner, or 
impairment while on duty, due to alcohol consumption, accounts 
for the majority of all actions taken by the Coast Guard 
against a mariner's credentials. The importance of keeping 
mariners drug- and alcohol-free while performing their duties 
cannot be overstated.
    The 2003 Staten Island Ferry accident which killed 11 
passengers and seriously injured 70 others and the Exxon Valdez 
grounding with its subsequent massive oil spill serve as 
prominent examples of why it is imperative that we impose 
proper sanctions, when needed, to minimize risk in the marine 
transportation system.
    Coast Guard investigators recommend sanctions based on the 
severity of the offense in accordance with the guidelines 
provided in Federal regulations. These guidelines ensure fair 
and consistent application of the suspension and revocation 
actions sought by the Coast Guard. The vast majority of cases 
where a sanction is imposed result from a settlement agreement 
between the mariner and the investigating officer.
    The ALJ's role in the settlement process includes the 
review of each complaint to ensure legal adequacy of the 
allegations and of the sanction. Cases that are not settled are 
referred to the ALJ.
    Since June of 1999 when the new procedural rules went into 
place, there have only been 152 ALJ decisions and orders issued 
after fully contested hearings; 21 of these resulted in full 
relief for the respondent; 31 of these cases resulted in 
partial relief or in a sanction less than that sought by the 
Coast Guard.
    Throughout the process, the Coast Guard is very mindful of 
the fact that mariners' livelihoods are at stake when we seek 
sanctions against their credentials. For that reason, we train 
our investigators to exercise good judgment and objectivity and 
to reserve suspension and revocation action for the most 
egregious cases. In fact, over one quarter of administrative 
actions taken against mariners were resolved with a letter of 
warning. In cases that warrant action beyond a warning, 
investigators are encouraged to help address the problem 
through the recommended sanction.
    For example, mariners who test positive for dangerous drugs 
are offered the option of undergoing a rehabilitation program. 
About 50 percent of the mariners who have their credentials 
suspended for drug use and who elect to undergo treatment 
eventually are rehabilitated and have their licenses or 
documents returned.
    The ALJ system and the investigative process are ultimately 
oriented towards public safety. Like all systems, there are 
always ways to improve. The Coast Guard is interested in 
working with stakeholders to improve the transparency of the 
process and to better serve the needs of mariners in the 
maritime community.
    Sir, I am out of time, but if you would like me to comment 
on your question on the proposal to remove the ALJ process from 
the Coast Guard----
    Mr. Cummings. That was going to be the first question I was 
going to ask you. Why don't we just wait and let Captain Sparks 
say what he has to say, and then, you know, you will need to 
be--I assume you are raring and ready to go, and that question 
will give you a few more minutes to think about it.
    Captain Sparks.
    Captain Sparks. Good afternoon, Mr. Chairman and Mr. 
LaTourette. I am Captain Thomas Sparks, Commanding Officer of 
Marine Safety Unit, Port Arthur, Texas. I have been in the 
service for going on 25 years now, and while I am a senior 
judge advocate, I have also had significant field experience in 
many other Coast Guard missions, principally marine safety and 
marine security. I am currently in what we refer to as an "out 
of specialty assignment"--that is a nonlegal assignment--at 
Marine Safety Unit Port Arthur, which is a subordinate command 
to Sector Houston-Galveston.
    At Marine Safety Unit Port Arthur, I supervise 
approximately 275 dedicated Coast Guard personnel--Active Duty, 
so-called "full time" Title X reservists recalled to Active 
duty, civilian employees, and drilling reservists. We are home 
to the Nation's number one military outload port in support of 
our troops in Iraq and Afghanistan, and we provide waterborne 
security for all military outload vessel transits. We are also 
the Nation's number one port for the importation of crude oil, 
and we have one existing LNG terminal in my area of 
responsibility.
    I will note, with respect to this hearing, I have had 
significant experience with the Coast Guard's S&R process 
throughout my career, as I had been an investigating officer 
myself prior to attending law school and, in fact, have 
presented cases before Judge Fitzpatrick, who you just heard 
from today. This was previous to the 1999 regulation changes.
    Additionally, in subsequent assignments, I had increased 
responsibility and authority. I directly supervised and oversaw 
the work of investigating officers who presented cases before 
Administrative Law Judges after the regulation changes in 1999. 
In fact, I am in just such an assignment right now.
    I am here today primarily in my role as a judge advocate, 
representing the Judge Advocate General of the Coast Guard, to 
assist Rear Admiral Salerno in answering technical legal 
questions that you may have concerning the Coast Guard's 
administrative law system, how it functions and how it affords 
due process.
    And that is where I was planning to end my statement, but I 
thought I would take you up on your offer and speak to some of 
the issues that had been raised by previous witnesses if it is 
still okay.
    Mr. Cummings. That is fine.
    Captain Sparks. Yes, sir.
    The first point I want to make is that Professor Dash 
referred to a sentence in the memo at issue, the guideline memo 
at issue, basically stating that the Federal Rules of Civil 
Procedure should not be considered when it comes to a discovery 
matter. I would like to clarify that whole issue by reading the 
entire provision that is in part 20, 33 CFR.
    It reads, "Absent a specific provision in this part the 
Federal Rules of Civil Procedure control."
    Now, there are several-pages' worth of specific provisions 
on discovery in part 20, and I will suggest to you that seeing 
through that lens, it is not a controversial proposition. In 
fact, it is a very straightforward proposition that, therefore, 
the Federal Rules of Civil Procedure do not apply with respect 
to discovery.
    Next, there was mention by a previous witness--I believe it 
was Mr. Hewig--recommending that some basic or limited level of 
discovery be provided for in the regulations, and he said that 
as that should be a change.
    I would suggest to you that there is already a basic 
limited provision on discovery in the regulations as they exist 
right now, and essentially, it is almost an automatic exchange 
of witness lists and exhibit lists, including summaries of 
expected testimony from the witnesses.
    The third point I wanted to make is that Professor Dash 
talked about a waiver provision, that is in part 20, which 
allows the Administrative Law Judge to deviate or to waive any 
of the rules contained within that part. And I just would like 
to read the entire provision just to put it in context.
    It says, "Except to the extent that a waiver would be 
contrary to law, the Commandant, the chief ALJ or a presiding 
ALJ may, after notice, waive any of the rules in this part 
either to prevent undue hardship or to manifest injustice or to 
secure a just, speedy and inexpensive determination," end 
quote.
    I will just say that the phrase a "just, speedy and 
inexpensive determination" is repeated in the paragraph just 
above the paragraph I read. They are watch words that I think 
convey the overall intent of the drafters of this regulation.
    So I would just point out that there are extraordinary 
circumstances that would permit an Administrative Law Judge to 
waive one of the rules, but they should not be taken carte 
blanche. Basically, we are talking about preventing manifest 
injustice or undue hardship, and those are very high 
thresholds.
    Thank you.
    Mr. Cummings. Thank you both very much.
    I want to go to you, Captain Sparks, and to some of the 
things you just said, at least one of them.
    As I recall Professor Dash's testimony--well, he said a 
lot, but one of the questions that I asked him was about these 
guidelines that were set out by the chief judge, and I quoted 
from those guidelines. And it says these words, quote, "And the 
ALJ should not rely on Federal Rules of Civil Procedure for 
discovery matters."
    I guess what I was trying to get to--and it seems like you 
are, in part, verifying my understanding--is that there is 
certain discovery, as you said a moment ago, that is already 
there. I mean it is pretty much there. It is rather significant 
discovery. The question went to when the chief judge says that 
the ALJ should not rely on the Federal rules, whether he is 
then limiting discovery more than, say, the Federal rules 
would.
    Are you following what I am saying? I know all of those 
provisions that you talked about. There are quite a few--you 
are absolutely right--but if the chief judge is basically 
saying that, okay, we do not want you to deal with--now, this 
is the chief judge. I am talking about what the chief judge 
says. You know, forget about the Federal rules. We have got our 
rules and know our rules pretty much. We want to make sure that 
they are not things that are going the opposite of one another. 
I know that there are things that are already stated with 
regard to the ALJs. I have got that.
    What I am saying is there may be more rights under the 
Federal rules that are not spoken to with regard to the ALJ. 
Are you following what I am saying? Does that make sense? Are 
you there?
    Captain Sparks. I think so.
    Mr. Cummings. Okay. I am just wondering. It seems to me 
that there was an effort--and I think this is what Professor 
Dash was saying--to perhaps limit the discovery with regard to 
the ALJs.
    Captain Sparks. Well, sir, I have never talked to the chief 
judge, and I cannot be inside his mind, but my read of this 
memorandum is that, first of all, it is a set of guidelines. 
The word "guideline" appears at least three times. It is in the 
subject line. It is in the first paragraph, and it is in the 
last paragraph.
    I look at it as a clarification more than anything else. 
Virtually every word is cut and pasted verbatim either from the 
regulations themselves, or from the preamble to the Federal 
rulemaking just prior to the regulations coming into effect.
    So I think the rules themselves on discovery do, in fact, 
limit discovery because they explicitly create very high 
hurdles to get beyond the so-called "mandatory discovery" that 
is initially provided for and is almost automatic. Those 
hurdles are to get to further discovery that it will not 
unreasonably delay the proceeding, that the information sought 
is not otherwise obtainable, that the information sought has 
significant probative value, that the information sought is 
neither cumulative nor repetitious, and that the method or that 
the scope of the discovery is not unduly burdensome and, in 
fact, is the least burdensome method available.
    Now, on top of that, when you talk about specific discovery 
mechanisms such as interrogatories or depositions, there are 
additional requirements that overlay those.
    Mr. Cummings. Again, I think it would be good to hear from 
the judge because I think, when you put a statement in 
guidelines and say--and I mean this is the sentence, "The ALJ 
should not rely on the Federal Rules of Civil Procedure for 
discovery matters," period. I mean that is a problem, and it 
sort of goes against some of what you just said, I think. But 
let us move on from there.
    Rear Admiral Salerno, tell me what your opinion is with 
regard to what Professor Dash has said with regard to taking 
these cases from under the Coast Guard.
    Admiral Salerno. Well, sir, our view is that there is a 
great deal of value in retaining the Administrative Law Judge 
program within the Coast Guard.
    Mr. Cummings. Why?
    Admiral Salerno. Well, this allows the judges to become 
very acquainted with all of the maritime regulations to which 
mariners are held. They understand the mission focus of the 
Coast Guard and how their role serves the marine safety 
purposes of the program.
    We also recognize the imperative that this process be 
independent, and we believe that we actually have the 
procedures in place to preserve that independence. At the same 
time, we will objectively consider any recommendations that are 
made by the Committee that would offer alternatives to that 
current process.
    Mr. Cummings. Do you think it is important, Rear Admiral, 
that the mariners and the Coast Guard feel, when they walk into 
a hearing, that they are going to be treated fairly? Do you 
think just to know that or to feel that or to believe that is 
important?
    Admiral Salerno. Absolutely. Yes, sir.
    Mr. Cummings. Does it concern you that there are folks in 
the mariner community--and I can tell you--I do not know if you 
heard what I said from the very beginning. There is nothing 
that we have done--and we have done quite a bit in this 
Committee over the last 7 months--that has drawn more attention 
than this. There are comments from mariners, e-mails, things of 
that nature. They are just very concerned about it. Does that 
concern you? Would that concern you?
    Admiral Salerno. Yes, sir, it does concern me.
    Mr. Cummings. So Mr. LaTourette was saying--and I am sure 
he said it on the record, I think he did--that this removal--he 
and I agree on this, and perhaps pulling them out from under 
the Coast Guard might be helpful in the sense that it could 
cure--whether you want to believe there are problems or not is 
a perception--that it could cure some of these perception 
problems.
    I am sure you would agree with me that we would hope that 
those problems do not exist, but the fact is that a lot of 
folks apparently feel that way, and I am putting aside-- while 
Mr. LaTourette has referred quite a bit to the Sun paper 
article, I put that aside to try to get down to some other 
things, you know, conduct-type things that I have heard about; 
trying to get to those because I can tell you--and Mr. 
LaTourette alluded to this--some of the charges were very, very 
serious and are the types of things that in most jurisdictions 
could get a judge in a lot of trouble.
    So I just think that maybe we need to take a look at that. 
And I know the Coast Guard is a very strong and a great 
organization, but I think sometimes, I think, we have to do 
everything. And I am just asking you, if you can.
    Other than the things you have just stated, what issues 
would you have or would the Coast Guard have with regard to 
separating and having these cases tried outside of the Coast 
Guard?
    Admiral Salerno. Well, sir, in addition to what I just 
mentioned, I would like to point out that there are two levels 
of administrative review in the current system. Certainly, 
there is a review to the Commandant, and then a respondent, if 
they are not satisfied with that level of review, can take the 
case to the NTSB. So it does go outside of the organization in 
an administrative proceeding.
    Beyond that, there is recourse to the Federal court system 
so that a respondent does, in fact, have avenues outside of the 
Coast Guard to further hear a case and to evaluate a case on 
the merits.
    Mr. Cummings. Let me ask you this.
    Going to what the Rear Admiral just said, Captain Sparks, 
if a mariner comes in and he goes before Judge Massey or before 
Judge Denson and his license is taken away, his privilege to do 
his livelihood, what happens during an appeal? Is that judgment 
then suspended while they go through appeal? How does that 
work? Do you follow what I am saying? In other words, the 
license is suspended--I mean not suspended, but revoked. What 
happens then?
    Captain Sparks. Well, there are two avenues, at least two 
avenues open to the respondent at that point. They can apply 
for a temporary license if their license has been suspended. If 
it has been revoked, there is also a process called 
"administrative clemency," and then the respondent can also ask 
that the case be reopened again and looked at like Judge 
Fitzpatrick referred to when he, I think on his own initiative 
there, reduced the sanction in the case of the pilot who almost 
caused the horrific accident with the LNG vessel.
    Just like Admiral Salerno says, there is also an avenue of 
appeal directly to Commandant and then beyond the Commandant--
and the Coast Guard is unique in this--to an outside 
independent agency, the National Transportation Safety Review 
Board. Then even beyond that, it goes to a judicial circuit 
court.
    Mr. Cummings. I guess what I am trying to get to--and I am 
not a mariner, but I guess what I am trying to get to is, when 
we have got someone whose livelihood depends upon being able to 
do the things that mariners do, and they lose the opportunity 
to do that, the only question I am trying to get to is--you 
know, sometimes--let me go back.
    I used to represent lawyers, and if a lawyer got in 
trouble, a lot of times what would happen is, if he were, say, 
put out of business or suspended for 6 months, that was like 
being disbarred for 10 years, because he lost all of his 
business; his reputation was destroyed; and just getting back 
would be very, very difficult.
    I guess what I am trying to figure out is that when we talk 
about these appeal processes, what happens in the meantime? In 
other words, you lose your license, but you said you can get a 
temporary license. You can get--what else?
    Captain Sparks. You can apply to get your license back, 
even after it has been revoked, through a process called 
"administrative clemency."
    Mr. Cummings. Yes, but during that clemency, you do not 
have your license--right?--until you get it back?
    Captain Sparks. Correct.
    Mr. Cummings. So, in other words, you can go to a hearing, 
and at that moment, like they do it in Baltimore at least, the 
judge can say, "Give me your license."
    Is that what they do there, too?
    Captain Sparks. Yes, sir.
    Mr. Cummings. Oh, okay.
    So you do not have a license. That is a problem.
    I guess what I am trying to get to, Rear Admiral, is that I 
just think that, when you are talking about something as 
serious as taking away somebody's livelihood, we need to take 
all of these things into consideration. Not that the same thing 
would not happen even if it were separated, but at least, 
hopefully, we would be able to cure some of these perceptions 
other than fairness--do you follow me--in very serious cases.
    Admiral Salerno. Yes, sir, I understand your concern there. 
I would like to point out, sir, that in the investigative 
process that takes place at the field level, our investigators 
are trained to use a great deal of objectivity and judgment and 
even bring in a case before an ALJ. In many cases that deal 
with minor infractions, our investigators may just issue a 
verbal warning. There is no record to this.
    An example might be, you know, a pilot on a vessel hits a 
navigational aid. Technically, you can bring somebody to a 
hearing for that, but in many cases they may just give a verbal 
warning or, in more serious cases, a letter of warning. Then it 
does become a matter of record. But they try to resolve cases 
at the lowest possible level. The default position is not 
necessarily to bring people to a hearing. That is reserved for 
the more serious cases or the drug cases as we mentioned 
before.
    Mr. Cummings. I have got you, but let us go back. You were 
talking about investigating officers. Then I will turn it over 
to Mr. LaTourette.
    Judge Denson mentioned that she was asked to train 
investigative officers, and I was just wondering, is that a 
normal practice, do you know?
    Admiral Salerno. It is not normal practice. Certainly, 
since the rules went into effect in 1999, the separation is 
much more of a bright line issue. There is one exception to 
that, and that is, at our training facility in Yorktown where 
we train our investigating officers on the procedures for 
conducting hearings, usually towards the end of this multiweek 
course, we may invite an ALJ to come in and perform in his 
normal role as a judge at a mock hearing.
    In the way that training is conducted, the judge does not 
provide any instruction to the IOs. He does not critique their 
performance. That is left to the course instructors. His role 
is simply to----
    Mr. Cummings. Or hers, what her role is.
    Admiral Salerno. --or her--and just play out their normal 
role, and then they leave. But as far as any other training, I 
understand that may have occurred in some instances in the past 
before the 1999 rules, but that is not occurring today.
    Mr. Cummings. The last question.
    Rear Admiral Salerno and Captain Sparks, if an ALJ in an 
adjudication issues a subpoena or a discovery order, does the 
Coast Guard choose which subpoenas or discovery orders it will 
comply with and which it will not comply with? What is the 
policy with regard to such orders, if there is one?
    Admiral Salerno. If a judge issues a subpoena, our 
expectation is it will be followed.
    Captain Sparks. I agree. I do not know that we have got a 
specific policy. I think it is just generally understood we do 
what the Administrative Law Judge directs.
    Mr. Cummings. So did it surprise you when you heard the 
testimony--I think it was from Judge Massey--that folks just 
said that they were not going to comply, that the Coast Guard 
said they were not going to comply? Did that surprise you at 
all?
    Captain Sparks. Very much. I was similarly surprised with 
her recitation of her meeting with Chief Ingolia. It is almost 
incredible.
    Admiral Salerno. I concur, sir. That would be contrary to 
the way we train our investigating officers. The expectation is 
when the judge issues an order, we follow it.
    Mr. Cummings. So, in listening to the testimony of Judge 
Massey, would you say that you all were surprised by 
particularly my last line of questioning when I asked about 
when she talked about the chief judge and what she alleged was 
said to her? You all were surprised by that?
    Captain Sparks. Very much so, yes, sir.
    Mr. Cummings. All right.
    Admiral Salerno. Yes, sir.
    Mr. Cummings. So what you are trying to tell me is that you 
would agree that if that were true, if what she were saying 
were true, that would not be inappropriate; is that right?
    Captain Sparks. I would prefer to look at it this way.
    In my nearly 25 years in the Coast Guard, Administrative 
Law Judges have been treated--we have a culture where they are, 
essentially, revered. They are respected. Ex parte 
communications are verboten. And I just cannot imagine 
something like Judge Massey described as happening.
    Mr. Cummings. All right.
    Mr. LaTourette.
    Mr. LaTourette. Thank you very much, Mr. Chairman.
    Captain Sparks, I know that judge advocates in this 
instance are not prosecutors per se, because these are not 
criminal proceedings, and the level of proof is a preponderance 
of the evidence. But I guess, because you are dealing with the 
potential revocation of someone's license and therefore 
livelihood, they are semi-quasi criminal.
    When I was the prosecutor, I always felt that the 
prosecutor had a great obligation. And I think the thing that 
is really disturbing me about this newspaper article--and I am 
sorry for bringing it up again--is that somehow wins, not just 
on the belt, are more important than doing justice. And to the 
folks who I worked with in the prosecutors' office, yes, it was 
embarrassing if you lost a case. Nobody likes to have brought 
an indictment or a charge to find out not to be right. But 
during the course of dealing with a case, if you discover you 
have got the wrong person or you have got the wrong charge or 
the facts are not there, I mean, is it your observation or 
experience that the judge advocates also are there to do 
justice, not just to win cases?
    Captain Sparks. Most assuredly so. Before they ever get to 
the case stage, these investigations are thoroughly vetted at 
the unit level before a decision is ever made to go forward 
with an S&R case. And we do realize the devastating impact it 
can have on a mariner and his or her ability to, you know, have 
a livelihood. It is not something we take very lightly. To the 
contrary, there is also a certain level of nervousness or 
anxiety in going before an Administrative Law Judge.
    So, if for no other reason but a selfish motivation, we 
want to be absolutely, positively sure that, you know, there 
has been, you know, an act of misconduct or of negligence or so 
forth has been committed and the evidence is overwhelming.
    Mr. LaTourette. I appreciate that very much. And I would 
make this observation. I have read the chief judge's memo 
relative to, don't follow the rules of civil procedure the way 
that you did. And that is, if the regulations are silent, if 
they speak to the issue, the discovery issue, then you don't 
use the Rules of Civil Procedure. If the regulations are 
silent, then you should turn. And I didn't view the chief 
judge's memo--I guess I would disagree with the professor's 
observation and I guess the Chairman's, too. But I would say 
this; that based upon Judge Massey's observation about the 
chief judge, that if he actually said the things that she 
alleged that he said, then I guess I won't give him the benefit 
of the doubt on the memo.
    And so my question to you, Admiral Salerno, is, the 
Chairman has indicated that the staff reached out to try and 
get people who were in this meeting in Baltimore, and we also 
had two other judges sort of had their reputations, I think, 
pretty severely attacked during the course of this hearing, are 
you aware of anything from the Coast Guard then that would 
prevent Mr. Jordan, Mr. Wilson, Chief Judge Ingolia and Judge 
Brudzinsky--I know that there are some lawsuits flying around 
and so forth and so on. But if I was Judge Ingolia, Judge 
Massey accused him, and I think it is a crime to say that no 
matter what the facts are, no matter what you think, you have 
to rule for the Coast Guard. And if he actually said that, the 
guy shouldn't be in his current job; he should be in jail. But 
if he didn't, I think he should have the opportunity to come 
here and set the record straight. So is there any impediment 
that you guys not want these folks to come and talk to us about 
this?
    Admiral Salerno. Sir, the impediment is the lawsuit. There 
are three of them. Judge Ingolia has been named in his official 
capacity and in his personal capacity in those lawsuits. In our 
discussions with the Department of Justice, it is recommended 
that he and several others not appear at this stage because of 
that pending lawsuit.
    Mr. LaTourette. How about the people that were in the 
meeting? Jordan and this Wilson guy play a pretty prominent 
role in our observations.
    Admiral Salerno. I believe Mr. Jordan is also named in the 
lawsuit. I am not sure about Mr. Wilson. I would have to 
confirm that for you, sir.
    Mr. LaTourette. Could you look at that, because those are 
the names the Chairman may have? And Judge Brudzinsky, has he 
been sued, too. He is the guy that went to lunch.
    Admiral Salerno. I am getting confirmation from the back 
row, sir. Yes, on all of those.
    Mr. LaTourette. Wilson, too, is in the lawsuit?
    Admiral Salerno. Yes, sir.
    Mr. LaTourette. I would just hope that you or someone else 
at the Coast Guard could come have a meeting with the Chairman 
and try to figure out how we collect this information. Because 
it bothers me on a lot of levels, the allegations that were 
leveled here today. And then for the reasons that I--I don't 
want to beat a dead horse, but I think I have explained why 
they bother me. And I think a guy that has been accused of what 
he has been accused of should have the opportunity to clear his 
name. And I understand what those impediments are. But if you 
can work with the Chairman and try to figure out how we can 
gain access to the observations in a way that doesn't prejudice 
either side in that lawsuit, I really think that would be 
helpful.
    Admiral Salerno. Sir, if I may, I would also like to state 
that the Coast Guard categorically denies the allegations that 
have been made in this lawsuit and, working through the 
Department of Justice, has filed a motion to dismiss.
    Mr. LaTourette. And that doesn't surprise me at all. I will 
tell you, where I come from, and I guess I will disagree with 
you, Admiral, in talking with the Chairman, I think that, 
because it is my understanding that after the ALJ rules, you do 
lose your license, and the next step is the Commandant and then 
the NTSB. I do think that there is something to be said on this 
whole appearance of impropriety. And I don't think this hearing 
has shown that there is any impropriety of the Coast Guard or 
the ALJ system at all. But I do think that it has demonstrated 
that you can have that appearance. It is a little bit like 
Congress, to tell you the truth. When we were in the majority, 
I used to love to preside over the House. And my friends in the 
Democratic party would come up afterwards and say, we like the 
way you did it because we know we are in the minority, but we 
feel we were treated fairly.
    And I think that the Chairman is right on point with that. 
Some people don't understand losing at all. But most people, if 
you treat them fairly, understand that the facts weren't on 
their side and they move on their day. And that is why I think 
that this moving the ALJs out of the Coast Guard, and I 
understand your opposition, has some attractiveness, and I 
would hope we could talk about that, because you do run the 
risk of these accusations. I assume you read the Sun story. It 
is horrible. And I haven't come away from this hearing that 
anything in that story relative to numbers, you may be a great 
reporter, but you are not good at math, and it is not right.
    But people deserve to be treated fairly. And to the extent 
that they are not--and so if an ALJ that is in the Coast Guard 
building rules against a mariner, it then has to go to the 
Commandant, and the Chairman is exactly right, he doesn't have 
his license. And even in the case, they put into the record 
where the NTSB ruled with the guy and said, we should take a 
look at this again; we are going to remand it. I assume he was 
without his license for whatever period of time that took. And 
that I think speaks that maybe we need to look at where the 
ALJs sit. So I thank you both for your testimony.
    I thank you, Mr. Chairman.
    Mr. Cummings. Thank you very much.
    Mr. Coble.
    Mr. Coble. Thank you, Mr. Chairman.
    Mr. Chairman, I apologize to you and the Ranking Member. We 
had a Judiciary hearing that occurred simultaneously with this 
hearing, and that is why I am belated getting here.
    Captain Sparks, this has nothing to do with today's 
hearing, but a half century ago, there was a boatswain's mate 
1st whose sir name was Sparks pushing booths through Cape May. 
Any relation to you?
    Captain Sparks. No, sir, I don't believe so.
    Mr. Coble. He was a grisly boatswain's mate, but a very 
competent one.
    You mentioned the administrative clemency program, Captain. 
What would be the average duration, if I had my license revoked 
and I applied through the administrative clemency process, when 
would that likely be restored?
    Captain Sparks. I think it is a number of years.
    Mr. Coble. A long time?
    Captain Sparks. It is a fairly long time.
    Mr. Coble. Well, as the Chairman pointed out, I don't think 
we need to play loosely with people's livelihoods. That is very 
crucial. But at the same time, I don't think we need to be 
lucid and reckless with safety and security.
    Captain Sparks. Exactly.
    Mr. Coble. And compromising safety and security, on the one 
hand, as opposed to retaining a license, that has to be weighed 
very equitably I think and very fairly.
    Admiral, or, Captain Sparks, either of you, if you will, I 
am told there has been a lot of talk at the hearing regarding 
due process in the ALJ system with the Coast Guard. How about 
briefly walking me through the appeals process that is 
available to both parties, that is the mariners or the accused 
and the Coast Guard? How extensive is this process? And how far 
up the chain of command within the Coast Guard does it advance? 
And what opportunities are available outside or beyond the 
Coast Guard ALJ system?
    Captain Sparks. Sir, let me tell you what I know, and then 
if you need more information, if you give us an opportunity, we 
will get back to you with more details. But there are a couple 
other avenues even before you talk about appeals. 
Administrative clemency is one of them. And I was just provided 
with the exact answer to your question. For a drug offense, it 
is a minimum of 3 years. For a nondrug offense, it is 1 year 
minimum for the administrative clemency process. If we are 
talking about a suspension as opposed to a revocation, there is 
an opportunity for a mariner to receive a temporary license. My 
understanding is that is a fairly liberally granted procedure 
by the Administrative Law Judge.
    Now, when you talk about appeals per se, there is a right 
of appeal to a Commandant. And that appeal can be based on 
whether a finding of fact is supported by substantial evidence, 
whether each conclusion of law accords with applicable law 
precedent and public policy, whether the Administrative Law 
Judge abused his or her discretion. Or if we are talking about 
a case where there had been a motion to disqualify an ALJ that 
was denied by him or her, that can be a basis, the failure to 
grant a motion to disqualify. That appeal goes to a Commandant. 
If a Commandant rules against the respondent, then the 
respondent has a further avenue of appeal outside of the Coast 
Guard to the NTSB. And I think the grounds are the same or 
roughly the same. And, again, if a mariner fails to get relief 
with NTSB, that mariner can go to the judicial circuit court 
which has jurisdiction.
    Mr. Coble. Admiral, will you add anything to that?
    Admiral Salerno. No, sir. I think Captain Sparks laid it 
out quite adequately.
    Mr. Coble. I have no further questions Mr. Chairman.
    Mr. Cummings. Thank you, Mr. Coble. Again, we want to thank 
you all for being here. I know it has been a long morning and 
afternoon. We will be getting back to you with a few other 
questions. I realize that there are some questions that you all 
probably are not even in a position to answer. But there is one 
I must ask. If a Coast Guard unit has a concern about a 
particular judge, should they go to the staff of the chief ALJ 
or the Merit System Protection Board. Captain Sparks.
    Captain Sparks. I don't believe--and we can get back to you 
with a definitive answer--there is a prescribed method to 
communicate or voice a concern about an Administrative Law 
Judge other than appealing his or her decision after the fact. 
That said, the Chief Administrative Law Judge does have a duty 
to investigate allegations that come to his or her attention 
regarding misconduct. And if the chief then decides that these 
allegations are founded or serious enough, then the chief can 
kick the case over to the MSPB. That is about the best I can 
answer your question, sir.
    Mr. Cummings. All right. Thank you all very much.
    And, again, we will try to follow up on Mr. LaTourette's 
request to get at least the three people that he mentioned 
before us as soon as possible. And so, anyway, we thank all of 
you for being here. And this closes the hearing.
    [Whereupon, at 2:00 p.m., the Subcommittee was adjourned.]

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