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WEBERNO.reference to addiction to the use of dangerous drugs. The AU found that the Complaint onlycharged Respondent with use of dangerous drugs, and that the Complaint served its purpose ofgiving Respondent notice of the conduct giving rise to the alleged offense so he could prepare hisdefense. [D&O at 5] The AlJ also found that the Coast Guard was not required to prove both useand addiction to the use of dangerous drugs, because 46 U.S.C. § 7704(c) makes either offense aground for revocation of a license. [D&O at 5] These findings by the AlJ were entirely correct.Inclusion of the additional language concerning addiction to the use of dangerous drugs in theintroduction to the factual allegations was harmless surplusage. In short, the charge did not violate46 C.P.R. § 5.35.Although the AU did not amend the introductory language on page two of the Complaintto eliminate the language about addiction to the use of dangerous drugs, the AU did strike out thatlanguage on the first page in the "Regulatory Authority" block to make it clear that Respondentwas only charged with use of dangerous drugs.The AU did not abuse his discretion in denying the motions to dismiss the Complaint and,instead, amending the "Regulatory Authority" block to delete the reference to addiction.There is nothing in Appeal Decision 2568 (SANCHEZ et al.) that requires a differentresult. The Sanchez case involved a faulty charge. The faulty charge was not cured before orduring the hearing. Instead, the AU sought to cure the problem in his written decision byimplicitly making a substanti l change to the charge to conform to the evidence, without notice tothe parties. The Vice Commandant found that this did not meet the requirements of the thenapplicable 46 C.P.R. § 5.525(c), which placed a duty on the AU to have defective chargeswithdrawn, and it did not give the mariners notice and an opportunity to contest what would havebeen the proper charge.46 C.P.R. § 5.525 has been replaced by 33 C.P.R. § 20.305, which codifies the concept thatpleadings in a Suspension and Revocation proceeding may be amended so long as the mariner isprovided with notice and an opportunity to defend against any new matter. It states:Each party or interested person shall amend or supplement a previously filed6

WEBERNO.'tv·o spleading or other document if she or he learns of a material change that may affectthe outcome of the administrative proceeding. However, no amendment orsupplement may broaden the issues without an opportunity for any other party orinterested person both to reply to it and to prepare for the broadened issues.33 C.F.R. § 20.305(a).In this case, the factual allegations alleged use of dangerous drugs based on Respondent'sfailing a drug test. The factual allegations were never changed and the ALJ found that they wereproved. To address Respondent's concern, t e ALJ amended the "Regulatory Authority" block ofthe Complaint to clarify that only use of dangerous drugs was alleged, and that there was no chargeof addiction to the use of dangerous drugs. This amendment narrowed the issues rather thanbroadening them, if it had any practical effect at all. No one was surprised or misled by theamendment.Unlike the situation in Sanchez, Respondent has failed to show that the Complaintcontained any error requiring its withdrawal. Accordingly, the ALJ did not err in denyingRespondent's motions to dismiss the Complaint, and Respondent's first basis of appeal is rejected.II.The due process rights of Respondent were violated because the Complaint filed against him wasnot signed by the Investigating Officer, and instructions included in the Complaint were improperadditions to the Complaint in violation of applicable regulations and were an attempt to intimidateRespondent.Among the arguments Respondent raised in his motion to dismiss the Complaint was anargument that including the instructions on page 3 of the Complaint was an improper use of theComplaint, and assertions that it was not the function of the Investigating Officer to instructRespondent on his rights and responsibilities. [Respondent's Motion to Dismiss (Pleadings File,Document 8) at 2-3] In his order denying the motion to dismiss the Complaint, the AU pointedout that 46 C.F.R. § 5.107(b) requires the Investigating Officer to advise the respondent of certainrights, possible results, and the consequences of a failure to answer or appear, in connection withthe service of a Complaint in a Suspension and Revocation proceeding. [Order DenyingRespondent's Motion to Dismiss (Pleadings File, Document 21) at 4-5]7

WEBERNO.19'0 3On appeal, Respondent argues that the inclusion of the instructions on page 3 of theComplaint is improper and violates due process because it constitutes an attempt to intimidate themariner. [Respondent's Appeal Brief at 7-8] Respondent also notes that the Complaint was notsigned in accordance with 33 C.F.R. § 20.307(c). [Respondent's Appeal Brief at 7-8] I willaddress the latter point first.The rules of practice for Coast Guard Suspension and Revocation proceedings address amotion to dismiss a complaint in these terms:§ 20.311 Withdrawal or dismissal.***(d) Any respondent may move to dismiss a complaint . or any party may lodge arequest for relief, for failure of another party to (1) Comply with the requirements of this part or with any order of the AU;(2) Show a right to relief based upon the facts or law; or(3) Prosecute the proceeding.(e) A dismissal resides within the discretion of the AU.33 C.F.R. § 20.311.Respondent's arguments before the AU about the Investigating Officer's failure to signthe Complaint fell under 33 C.F.R. § 20.31l(d)(l) because 33 C.F.R. Part 20, Subpart C includes arequirement at 33 C.F.R. § 20.303(c) that pleadings be signed. According to 33 C.F.R.§ 20.311 (e), it was within the discretion of the AU to dismiss the Complaint because it was notsigned by the Investigating Officer. The AU did not do so. Instead, in his order denying themotion to dismiss, the AU called the sending of an unsigned Complaint to Respondent a"technicality" and concluded that it did not warrant dismissal of the Complaint becauseRespondent had notice of the use of dangerous drugs charge, answered the Complaint, andexercised his right to dispute the charge at a hearing. [Order Denying Respondent's Motion toDismiss (Pleadings File, Document 21) at 6] The AU correctly observed that Respondent cited noauthority requiring that a Complaint be dismissed because it was unsigned, where there was noshowing that the technical error prejudiced Respondent. [/d.]8

WEBERNO.1'1'0 9On appeal, Respondent notes that the Complaint was unsigned, but does not challenge theALJ's conclusion that the technical error was not prejudicial and did not warrant dismissal of theComplaint, or otherwise develop any issue from the omission. [Respondent's Appeal Brief at 7-8]The AU did not abuse his discretion in finding that the unsigned Complaint did notwarrant its dismissal, and the decision is not otherwise unlawful. However, the lack of a signaturebespeaks carelessness. Investigating Officers are urged to sign Complaints before filing andserving them.The remainder of Respondent's argument, that the instructions on page three of theComplaint abuse the rules, violate due process and are contrary to public policy, is whollyunpersuasi ve.The AU noted that the Investigating Officer is required by 46 U.S.C. § 5.107(b) to advisethe respondent of certain rights, possible results, and the consequences of a failure to answer orappear, in connection with the service of a Complaint in a Suspension and Revocation proceeding.[Order Denying Respondent's Motion to Dismiss (Pleadings File, Document 21) at 4-5] Hedeclared that the third page of the Complaint "is necessary to fulfill [the Coast Guard's]obligations under the regulations pertaining to issuing a Complaint." [/d. at 5] The AU alsofound that the instructions in the Complaint contain nothing inappropriate and do not mandate orattempt to mandate the respondent's actions. [/d.]The AU did not abuse his discretion, in accordance with 33 C.F.R. § 20.3ll(e), in denyingthe motion to dismiss based on Respondent's arguments about the instructions included with theComplaint. On appeal, Respondent offers no support for his claim that the instructions were anattempt to intimidate him, nor does he state that he was, in fact, intimidated. Coast Guardregulations require that, when a Complaint is filed against a mariner's credentials, the mariner beadvised of certain things. 46 C.P.R. § 5.107(b). I agree with the AU that the third page is apermissible means of meeting that requirement. Respondent's due process rights are not infringedby the Coast Guard's choosing to comply with its regulation by including the required advice in9

WEBERNO.instructions on the final page of the Complaint. Respondent's second basis of appeal is rejected.ITI.The AU should be disqualified.On appeal, Respondent asserts that he was not afforded a hearing before an unbiased AU.[Respondent's Appeal Brief at 8] Before the hearing, Respondent filed a motion for the AU todisqualify himself, including Respondent's affidavit setting forth the reasons for disqualification,in accordance with 33 C.P.R. 20.204(b). [Motion for AU to Disqualify Himself (Pleadings File,Document 9)] The AU issued an order denying the motion. [Order Denying Respondent'sMotion to Disqualify the Administrative Law Judge (Pleadings File, Document 22)] Respondentappeals from the denial of the motion. [Respondent's Appeal Brief at 9]As he did in his affidavit included in the motion, Respondent states that the AU was biasedbecause during the pre-hearing conference the ALJ suggested that Respondent should accept theCoast Guard's settlement offer, before the AU considered any of the evidence in the case; andbecause the ALJ summarily overruled his discovery motion at the pre-hearing conference. [ld. at9-10] Respondent states that, subjectively, he concluded that the AU was an adversary, and thatthe ALJ had determined the result in his own mind by the time of the pre-hearing conference. [ld.at 9]Respondent also raises a new basis for finding bias. Respondent states that two of thewitnesses at his hearing, the specimen collector and the Medical Review Officer, perjuredthemselves, but that the AU showed his bias by finding that the witnesses had testified truthfully.[ld. at 10]Among the principles applicable to the resolution of a claim of bias or prejudice against anAU are these:Parties to suspension and revocation proceedings may request that an AUwithdraw from the proceedings on the grounds of personal bias or otherdisqualification. 33 C.P.R. § 20.204(b). After making such a request, the party10

WEBERNO.'19'0 sseeking disqualification carries the burden of proof. Schweiker v. McClure, 456U.S: 188, 102 S.Ct. 1665 (1982). The courts have long stated that there is arebuttable presumption that the officers presiding over hearings are unbiased andthat bias is required to be of a personal nature before it can be held to taintproceedings. Roberts v. Morton, 549 F.2d 158 (lOth Cir. 1977). Prejudgment alsoserves as a basis for disqualification. As a result, a proceeding is subject tochallenge if it appears that the action has been prejudged. Gilligan. Will & Co. v.SEC, 267 F.2d 461 (2d Cir. 1959).Appeal Decision 2658 (ELSIK) at 14-15. 1Prejudgment exists when:the decision maker is "not 'capable of judging a particular controversy fairly on thebasis of its own circumstances.' " [Hortonville Joint Sch. Dist. No. 1 v. HortonvilleEduc. Ass'n., 426 U.S. 482, 96 S.Ct. 2308 (1976)] at 493, 96 S.Ct. 2308 (quoting[United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941)] at421, 61 S.Ct. 999). This standard is met when the challenger demonstrates, forexample, that the decision maker's mind is "irrevocably closed" on a disputedissue. [FfC v. Cement Inst., 333 U.S. 683, 68 S.Ct. 793 (1948)] at 701, 68 S.Ct.793.NEC Corp. v. U.S., 151 F.3d 1361, 1373 (Fed. Cir. 1998).A.I will begin by addressing Respondent's arguments that the AU demonstrated bias andprejudice by attempting to coerce him into accepting the Coast Guard's settlement offer, and thatthe same acts also demonstrated that the AU had already determined the matter in his own mind.In his affidavit in support of his motion, Respondent stated:The AU admonished the Respondent that the Respondent needed to understand therealistic options available to the Respondent. The AU explained the "realistic options"; itis easier to go thru the process of taking a plea agreement and go thru there-licensingprocedure, that the process is fundamentally easier, and that the remedial proceedings areestablished for the good order of mariner operations.[Pleadings File, Document 9 at 2]1Contrary to Elsik, however, it is not the case that disqualification requires a clear and convincing showing.11

.WEBERNO.There is nothing improper bout an ALJ conducting a pre-hearing conference andinquiring about the status of settlement discussions. 33 C.F.R. § 20.50l(b), (g)(9), and (g)(ll)?Given the nature of the charge brought against Respondent, it is clear that if the charge wasproved the ALJ would be required to revoke Respondent's License. 46 C.F.R. § 5.59(b);46 C.F.R. § 5.569, Table 5.569. In such a case, a mariner may apply for a new credential afterthree years from compliance with the order of revocation. 3 46 C.F.R. § 5.90 l(a). The three-yearperiod may be waived if certain conditions are met. 46 C.F.R. § 5.90l(d). The application for anew credential must include information regarding the mariner's rehabilitation or cure from theuse of dangerous drugs. 46 C.F.R. § 5.903(c)(2). The application will be considered by a boardappointed by the Commandant. 46 C.F.R. § 5.905. It appears that choosing to contest the chargeat a hearing with the possibility of revocation of his credential was one of the "realistic options"the AU discussed with Respondent. The fact that Respondent would face the possibility ofrevocation of his License if he chose to contest the charge does not in any way foreclose thepossibility that the ALJ would find the charge not proved. In the context of an AU's inquiry aboutsettlement, any reasonable person would view a discussion about the consequences of anunfavorable hearing result as fair comment about the proceedings, and not of a nature to raise aquestion about the AU's impartiality.In the same context, the AU's reviewing the possible advantages of settlement as a"realistic option" and encouraging settlement does not raise a question about the AU'simpartiality. Respondent's affidavit indicates that the AU viewed the typical settlement offer asoffering Respondent an easier path to the return of his mariner's credential. The fact that the AUencouraged Respondent to consider the Coast Guard's settlement offer does not show a bias orprejudice against Respondent, nor does it indicate anything about how the AU would decide thecase if Respondent rejected the settlement offer, as he evidently did.As a practical matter, no doubt the Coast Guard makes settlement offers in order to achieve2The record in this case does not include the settlement offer served by the Coast Guard on the Respondent.This would be an application for an original credential, i.e. it would not build on the former, revoked credential, butwould require, among other things, the taking of any examinations required for the credential. 46 C.F.R. § I0.235(b).312

NO.WEBERa predictable result and avoid the expense of a hearing, among other things. That necessarilymeans that the Coast Guard will be most interested in settlement, and the respondent will often bein his or her strongest bargaining position, before the hearing begins. Accordingly, it is customaryfor settlement discussions to occur before AUs have heard evidence in the proceedings, and forALJs to encourage settlement although they have not heard the evidence. AU commentspromoting the benefits of settlement over the uncertainties of a hearing are not wrongful orimproper because they occur before the AU has heard the evidence. A judge "often can get a feelfor a case prior to trial, which means that his perceptions can be based on the conduct of the partiesand the evidence." Johnson v. Trueblood, 629 F.2d 287, 291 (3rd Cir. 1980). That court furthernoted:The relevant inquiry is whether the trial judge's pretrial comments were linked tohis evaluation of the case based on the pleadings and other materials outlining thenature of the case, or whether the comments were based on purely personal feelingstowards the parties and the case./d.In this case, the AU had at least the Complaint and Respondent's Answer to provide him afeel for the case before the pre-hearing conference and the discussion of settlement andRespondent's "realistic options." Respondent had admitted to providing a urine specimen and theCoast Guard had alleged that standard scientific drug testing had established that the specimen waspositive for marijuana metabolites. Therefore, the ALJ had a proper basis for his comments onRespondent's "realistic options," and Respondent has not suggested any reason why thosecomments would have been based on purely personal feelings on the part of the ALJ againstRespondent. While Respondent may subjectively feel that the AU had prejudged the case or wasbiased against him, the affidavit supporting the motion for disqualification does not objectivelyraise a question about the AU's impartiality.B.I will now address Respondent's argument that denial of his motion for production ofdocuments at the pre-hearing conference showed the AU's bias or prejudice against him. In hisorder denying Respondent's request for production of documents, the AU explained that he13

Nd.WEBERdenied the request because he viewed the request as not complying with the regulations, and therequested documents were irrelevant to the issues in the proceeding. [Pleadings File, Document 6]It is well established that 'judicial rulings alone almost never constitute a valid basis for a bias orpartiality motion." Liteky v. U.S., 510 U.S. 540, 555 (1994) (citing United States v. GrinnellCorp., 384 U.S. 563,583 (1966)). Nothing about the AU's denial of the motion for production ofdocuments suggests that it was based on anything other than the AU's fair evaluation of the meritsof the motion. Respondent's contention here, again, does not raise a question about the AU'simpartiality.c.Finally, I will address Respondent's argument that the AU displayed bias and prejudice byaccepting as credible the allegedly perjured testimony of the specimen collector and the MedicalReview Officer. The ALJ serves as the fact finder in Suspension and Revocation proceedings. Aswith other judicial rulings, decisions on credibility alone do not constitute a valid basis for afinding of bias.In his appeal, Respondent admits that he cannot prove that the specimen collectorcommitted perjury. [Respondent's Appeal Brief at 10] He offers no further argument to supporthis position regarding the specimen collector except to state that his offer to submit to a polygraphtest was rebuffed. [Respondent's Appeal Brief at 10] Whether or not Respondent would havesubmitted to a polygraph test is irrelevant to the AU's fact finding. Respondent simply offersnothing to support his attack on the AU's finding that the specimen collector's testimony wascredible.Regarding the Medical Review Officer (hereinafter MRO), Respondent refers tostatements made by him that Respondent views as clearly contradictory. The MRO testified aboutthe functions he performed in connection with the drug testing that led to the charge againstRespondent. [Tr. at 79-85] During the MRO's testimony, the Coast Guard offered Ex. 4 and 6.[Tr. at 82-91] Coast Guard Exhibit 4 is the Drug Testing Consortium's Report to Respondent ofthe results of his drug test. On page 2 of that exhibit, the MRO had recorded that he made contactwith Respondent and Respondent admitted use. [Tr. at 88] Coast Guard Exhibit 6 is a form14

WEBERNO.17·o 3prepared by the MRO which he referred to as the MRO's Action Report. That form also showedthe MRO's recorded note that he contacted Respondent and Respondent admitted use. [Tr. at 88]Both exhibits were admitted into evidence without objection by Respondent. [Tr. at 91]The MRO testified that he spoke with Respondent by telephone and asked him if be hadused marijuana recently. [Tr. at 87-88] He testified that Respondent essentially admitted use. [Tr.at 88] Later, he testified that he did not remember the telephone conversation but was relying onhis written notes of the conversation. [Tr. at 100] Respondent argues that this shows that the MROperjured himself. I disagree. With respect to the MRO's telephone conversation with Respondent,his testimony was that he did not remember the conversatioh and his recorded notes in Coast ,Guard Exhibits 4 and 6 did not refresh his recollection. This is far from a showing of perjury.Based on the foregoing, Respondent has failed to show that the MRO perjured himself.Accordingly, the premis

Oct 31, 2017 · 1. On 1/31/2011 Respondent took a random drug test. 2. A urin specimen was collected by [name of specimen collector] of APCA Consortium. 3. The Respondent signed a Federal Drug Testing Custody and Control Form. 4. The urine specimen was analyzed by LabOne, Inc. DBA Quest Diagnos