Properly Preserving Claims Of Bias Before A Coast Guard ALJ
In Judge Jeffie Massey’s address at the 2010 MOPS luncheon in New York on May 7, she recommended in no uncertain terms that any attorney who draws a Coast Guard license action before Administrative Law Judges Joseph Ingolia, Walter Brudzinski, or the recently-appointed George Jordan should prepare and file papers to properly perfect a claim of bias against the judge.
The proper procedure for doing so is to prepare an affidavit, setting forth the exact facts and reasons justifying the charge, and to file it with the agency, and that the agency shall then determine the matter as a part of the record of the case itself. See 5 USC sec. 556(b) (Administrative Procedures Act.) Judge Massey’s Affidavit in the Christopher Dresser case contains more than ample testimony showing bias on the part of all three judges, and can be attached as an exhibit to your affidavit. We can provide you with a copy of Judge Massey’s affidavit should you require it. Most of all, remember that it is essential that any claim of bias be asserted as soon as it becomes known. Failure to raise the issue in a timely fashion will be deemed a waiver of the right to raise the claim at a later stage of the proceeding, especially at the appellate level. See, Marcus v. Director, Office of Workers Compensation Programs, US Dept. of Labor, 548 F.2d, 1044, 1050 (D.C. App. 1976).