Indictment of DHS OIG Office for Cover-Up of Coast Guard Crimes

Indictment of the Office of The Inspector General of The Department of Homeland Security for the Cover-Up of Crimes by U.S. Coast Guard Command and Administrative Law Officials

October 08, 2010

Introduction

The Office of the Inspector General (OIG) of The Department of Homeland Security (DHS) published two reports in mid-September 2010 (though dated August 2010) in response to allegations of misconduct of officials within the Coast Guard Administrative Law Program. In the first report (OIG-10-108), the authors attempt to offer legal justifications to multiple illegal and criminal acts committed by Coast Guard military and court officers--- those acts having been committed while acting in official capacities and bound to the oaths of the federal offices of those same officers.

The second of these two reports (OIG-10-107), contains suggestions for improvement of the Coast Guard Administrative Law Program. However, the effectiveness of those suggestions are dependent upon the correctness of conclusions in the first report. The assertions and conclusions in the first report are wrong, both factually and legally. As such, any suggested corrections in the second report are insufficient--- and thereby: not solutions at all. Both OIG reports are accessible on the internet.

Instituting visual separations and “policies” without prosecuting and punishing the perpetrators only further damages the honor and integrity of the Coast Guard. It also sends the wrong message: to not get caught cheating, rather than imposing punishment or remedy for having cheated, and for violating the law. The proposed “fixes” are aesthetic. The true problems were not addressed.

Injustice Through Legal Unfairness

It is important to state that the legal process in The United States is based upon the concept of fairness. Fairness is most basically achieved by evenness. Each, or all parties in a legal case have the right to evidence, and the right to present their case before a judge not biased towards, or influenced by any presenting party in the case. Each party is entitled to fair and even access to evidence, and each party has the legal right to compel the other side to disclose evidence in their control or possession that is relevant to the case.

In a nutshell: what is accessible to one side, must be equally accessible to the other side as well. The administrative law system Congress constructed has protections in place to ensure this fairness is afforded both parties, but the Coast Guard refused to follow those rules. The significance of those acts is that Coast Guard officials continually violated federal law while engaged in the duty of federal law enforcement. The evidence of those violations is clear even without the testimony of former Coast Guard Administrative Law Judge (ALJ) Massey. Judge Massey’s testimony serves to confirm and corroborate irrefutable evidences already on paper.

Violations of Law

Coast Guard officials devised and instituted a system within their Administrative Law Program to refuse the constitutionally protected rights to fairness afforded by due process of the law to those accused by the Coast Guard in that administrative law system. This was accomplished through violations of law and federal statute by Coast Guard officials. The DHS OIG reports specifically neglected to address that was the problem. What actually occurred were attempted coercions, intimidations, disrespect, and attempted illegal influences of a presiding judge by the agency for which the judge worked. Moreover, that entire legal system was improperly manipulated by the very same officials charged with supervising and administrating that system.

Specific Criminal Acts Committed

In United States Code: Title 18-- CRIMES AND CRIMINAL PROCEDURE, Section 1512(c) states:  “Whoever corruptly--

     (2) ...obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.”

In OIG-10-108 the authors declare that the Coast Guard (CG) Chief Administrative Law Judge (CALJ) “...declined to review ALJ’s pending cases although his job description authorizes him to do so.”, (p.13) and “Further, the Chief ALJ may review and discuss pending cases...”, p.17.

In a standard Webster’s Dictionary the word “review” is defined as: (noun) “ : judicial reexamination” and (verb) “ : to view or see again : to reexamine judicially : to look back on : to study material again”. The word “pending” is defined: (adjective) “ : not yet decided : being in continuance”.

One cannot “reexamine” that which is “not yet decided”--- that is a “preview”. While it is agreed that the CALJ has the authority to review cases, nothing in the law does or can fairly allow him to preview pending cases and inject his own secret “policy” interpretations--- in order to influence pending rulings. That action constituted a federal crime in violation of 18USC1512(c)(2) and 18USC1503(a).

When the CG CALJ sent a policy letter to CG ALJ Massey without informing the parties of his “interpretations”, that action also violated Administrative Procedures Act (APA) provisions requiring agencies to publish policies publicly: 5USC552(a)(1)(D) & (a)(2)(B), and 5USC554(b)(3). The CALJ’s intent was clear: “The intent remains the same (1) limited discovery...”. In fact, the CALJ used the words “limited” and “discovery” together six times in the first two pages of the policy letter. As this was all done in secret, it could not be formal or binding policy, but was rather a simple attempt to influence the presiding ALJ’s pending ruling on sanctions against the agency for flatly refusing to “honor” a subpoena. This policy was drafted after ALJ Massey ordered sanctions proposed against the agency for the subpoena refusal, and the respondent in the case proposed dismissal as the appropriate sanction.

For respondents, no guidance was received on exactly what procedure to employ in order to obtain evidences held by the agency, and kept secreted away from the court. Those accused and their attorneys knew the Coast Guard had evidence that would help to prove the accused’s cases, but were not made aware of the secret creation of a policy constructed to deny them access and fairness.

Though the agency held evidence that would assist the accused in three separate cases to adequately present their cases before ALJ Massey, the prosecutors never intended to allow for a full disclosure of facts in those cases. The prosecutors in the contested cases held evidence and information they did not want to present to the court of ALJ Massey, because the evidences could be detrimental to their prosecutions of those three cases. This was proved by the actions of the agency in ‘The Coast Guard vs. Rogers’- CG S&R 04-0537--- consequently the only one of those cases to even eventually make it all the way to final judgement. CALJ Ingolia’s actions were pivotal in their concealment. None of this was due do CG Investigating Officers’ inexperience. They had a motive.

Though the DHS OIG repeatedly attempts to offer justifiable reasons for the CG CALJ to inject his opinions and interpretations into cases pending before other ALJ’s, there is no legal argument to support those claims. In fact, the OIG’s assertions are completely opposite to the Order of US District Court Judge Helen Berrigan who stated in her ruling on November 8, 2007: “...it is not objectively reasonable for one ALJ to influence another.” Though she ultimately dismissed the lawsuits against CALJ Ingolia and others on technicalities, she also was publicly quoted as stating from the bench: “I know that I wouldn’t dream of doing things that Judge Ingolia seemed to feel was appropriate to do”. Though the CALJ pressured ALJ Massey to not dismiss cases on technicalities, the government seems comfortable having lawsuits against the CALJ dismissed on technicalities--- as this has been their repeated strategy for the past three straight years.

In Emeritus Professor of Law at the University of Maryland School of Law, Professor Abraham Dash’s testimony before the US House Subcommittee on Coast Guard Hearing, he states in his conclusion: “It is clear that any attempt to pressure an administrative law judge by a superior or the agency to rule favorably for the agency is a violation of the Administrative Procedure Act and the Fifth Amendment.” Whether or not the CALJ ever directly instructed ALJ Massey to rule for the agency in any specific cases, or generally in all of her cases (as she testified under oath)--- the CALJ’s attempt to pressure or influence ALJ Massey’s pending rulings remains clear and evidenced. OIG-10-108 authors did not adhere to their own correct declaration on page 3, “An ALJ must be an impartial finder of fact, free from the influence of the Coast Guard or any other person or entity when hearing and deciding Coast Guard cases.”

The secret meeting resulting in the secret policy: 

OIG-10-108, page 19, states: “No prohibited ex parte communications took place at the February 24, 2005, meeting because the relevant agency decision maker, i.e., ALJ Massey, was not in attendance.” The Appellate attorney for the agency who attended the meeting with, and wherein prosecutors discussed facts in issue of pending cases was then assigned to write the appeal decision for one of those same cases. That assignment was a violation of the APA, and upon accepting that assignment without noticing the parties of the prior meeting, the prior secret meeting contact immediately became a violation of the APA as well--- (5 USC 554(d) & 5 USC 551(14)). These violations extend to include the Appeal Decision as well, written by that same attorney.

The case assigned was the one where ALJ Massey ordered a subpoena to the Coast Guard, and the Coast Guard refused rather than filing a Motion to Quash the subpoena.

How many of ALJ Massey’s cases had sanctions ordered proposed against the agency for refusing a subpoena by the date of the secret meeting between prosecutors and appellate staff?: One.

How many cases were then assigned to that same attorney on appeal after being dismissed as sanction for the Coast Guard’s refusing to follow a subpoena?: One again.

It is immaterial whether the meeting attendees ever discussed any of the three specific contested cases of issue by name. The fact in issue of the case with the subpoena refusal and subsequent dismissal was something which had never before happened in the CG Administrative Law System. The Appellate attorney specifically assigned to that appeal a mere few months after the meeting recognized it. The OIG then goes on to state on page 20: “However, there is no evidence...that contact between the adjudicative and prosecutorial arms of the Coast Guard influenced the outcome of any case.”(OIG-10-108). Again, 18 USC 1512 declares it is a federal crime, “Whoever corruptly--...influences...any official proceeding, or attempts to do so,...”

The most egregious violation and conflict of interest occurred when the same appellate attorney was reassigned to the appeal after review--- once she became a defendant in a lawsuit stemming from her prior secret involvement in that same case. She most certainly recognized the case on appeal for which she was being sued. It is funny how the Coast Guard created some informal and non-binding rules to limit contact between CG appellate attorneys and prosecutors in May 2008. For, in May 2008, the last appeal of the cases for which the appellate attorney was sued had been written (by her) and was also published. This was the last surviving case of issue from the February 24, 2005 meeting in which CG appellate staff had improper contacts and secret discussions with prosecutors.

Though the actions of CG Officials were not inescapably intertwined with the merits of the case or cases, their violations were certainly relevant to the merits contained within the evidences they illegally conspired to keep out of the official records. Their illegal actions had an effect on the final outcomes of each of the cases involved. This also had a detrimental effect on those same respondents, financially and otherwise.

Concealment of Evidence

The OIG espouses the same extravagant and disingenuous arguments that the Coast Guard used to refuse a subpoena previously. It is stated that because the respondent did not title the subpoena request as “Motion”, then the whole process following is without authority. 46 CFR 5.301 states: “(c) After charges have been served upon the respondent the Administrative Law Judge may, either on the Administrative Law Judge’s own motion or the motion of the investigating officer or respondent, issue subpoenas...” The ALJ so moved. These subpoenas are issued with the same authority as a U.S. District Court. In denying the ALJ’s authority, what the agency created is a multi-phase process of hurdles to get through to in order to acquire even so called “smoking gun evidence” that the agency may hold, which may implicate another person and/or exonerate the formally charged or cited citizen being prosecuted.

Apparently a respondent must formally “Move” to request: Then the government reply: Then the subpoena can be issued: Then the government can move to “Quash”: The judge decides: Then the subpoena goes to D.C.: Then the agency may refuse to follow the order anyway. To find out if this is the CG’s honest interpretation, put the shoe on the other foot. Do CG Investigating Officers have to file a “Motion” to subpoena evidence from a respondent? Must they then allow 10 days for the respondent to respond, and only then issue the Order--- giving the respondent a second try to “Quash” the order? That would be evenness, and thereby: fairness. To find that out, just look at the Coast Guard’s record.

Fact is: As a respondent, you do not have a chance to acquire that evidence, even if the Coast Guard’s own Judge orders it produced. That is certainly not what Congress intended in drafting those rules.

Both the agency and the OIG repeatedly state that the ALJ did not follow regulation 33 CFR 20.601(d) or (e). It takes only a brief look at those regulations to understand that an ALJ can determine within mere moments that the specifications in those regulations are, or are not met. There is no even inference in the regulation that the ALJ must spell out each item in some long-handed form or fashion. To state that the regulation was not followed because ALJ Massey did not lead the Coast Guard along by the hand and spell out just how each point was met is a juvenile argument, without some proof that one or more points were specifically not met.

Fact is: The CG does not want evenness, fairness, or honest due process in their adjudicative system. They only want it to appear so. Their hyper-specifications of how rules must be hyper-interpreted to the agency’s favor to be valid, proves that. This is also evidenced by their complete disregard of regulations when and where the regulations do not fit any instant agency argument.

Example: 33 CFR 20.103(c) states: “Absent a specific provision in this part, the Federal Rules of Civil Procedure control.” Control it says. The Coast Guard interprets this as: “Coast Guard S&R hearings are governed by the Administrative Procedures Act and the provisions of 33 CFR Part 20, not the Federal Rules of Civil Procedure, although those rules may be used to supplement gaps in the applicable Regulations.”, p.19, DECISION OF THE VICE COMMANDANT ON APPEAL No. 2679, dated April 2, 2008. The regulation says control, the CG interprets that to mean may be used. Even a child could decipher this was no mere error. There was a motive.

Conclusions

The OIG repeatedly states how ALJ’s must follow policy in both reports. Apparently this is to include “secret” policies of which the public is unaware. In OIG-10-107 the authors state that the CALJ’s authority is to issue policy, “to ensure that the penalties that ALJ’s impose are generally consistent...”, p.8. One need only look at the Department of Commerce (DOC) OIG report on NOAA- National Marine Fisheries Service (NMFS), Fisheries Enforcement Programs (OIG-19887) to reasonably conclude that was not the CALJ’s purpose in issuing policy. In that report the DOC OIG concludes that NOAA’s “penalties are disproportionate” and “enforcement processes are arbitrary and lack transparency”. NMFS uses CG ALJ’s to adjudicate their cases. Still think CG Administrative Law is fair? Ask any commercial fisherman. It was further concluded that NMFS misused forfeiture proceeds to take trips overseas and for other inappropriate uses.

So where does all of this leave U.S. mariners? The OIG admitted the CG discussed the “issues” of cases in a secret meeting between prosecutorial and adjudicatory staff. What if those roles were again reversed? What if respondents had secret meetings with deciders and the supervisors of a judge they felt cheated or belittled them? How would the government then react?

Better yet, what did the Coast Guard do when their secret meetings, discussions, policies, attempted influences, and concealment were made public? They reappointed the Chief ALJ. They appointed one of his co-conspirators to be a new CG ALJ. They wrote down some rules to limit interaction of appellate staff with prosecutors--- but only after the appellate attorney, who’s violable involvement and conflict of interest in writing one of those appeals, completed writing that very same appeal. They left the prosecutors who had refused court orders in their jobs. They ‘took care of their own’. Then the CG opened a new office, and dubbed it ‘Expertise’.

Meanwhile, the testimony came out by the two only ever female CG ALJ’s (both former-ALJ’s by the time of the testimony), that the agency had inappropriately pushed them out. The government can publish all the rules and policy they want. Train ALJ’s and investigators. But, realize, they all already know the drill. There is nothing preventing them from disobeying the rules, regulations, or even the Constitution again: without punishment for having already done so. CG officials chose to not follow the rules, because there has been no punishment. This is true from the local investigators all the way up to the Offices of the Commandant and the Chief ALJ of the Coast Guard.

Solutions

The gravity and severity of the Coast Guard Administrative Law System is that decisions are made through that system determining the causes and responsibilities for major and serious accidents often involving loss of life, and major impacts on commerce and the environment. Often the Coast Guard is the only accident investigator. If allowed to deny a full and open proceeding with determinations of all relevant evidence, the wrong cause or person may well be declared responsible for an accident. This is true whether for malicious intent, efficiency, continuity of policy, or whether due to ineptitude or laziness. This cannot be allowed. Coast Guard violating officials must be prosecuted.

The persons involved in deciding, reviewing, and finally inspecting these actions all know, and have known that the Coast Guards’ actions were and are violations and malfeasant. They are all lawyers and trained officers of the court. The Coast Guard officers and investigators also know how follow rules, they are in the military. The Coast Guard has not shown it has the temperance or maturity to identify as a military service, engaged in law enforcement, while conducting prosecutions and also adjudicating fairly. Meanwhile, their acts have destroyed lives and careers. This whole affair has been a violation of 18 USC 241 as a conspiracy against rights, regardless of intention. In efforts to cover it up, CG officials also violated 18 USC 1001. The drafters of the DHS OIG reports addressed herein have made themselves culpable as accessories in those violations (18 USC 3). Adjudicatory functions must be removed from the Coast Guard.