Van Teslaar v. Bender

• Decision Date: 17 October 1973
• Docket Number: Civ. A. No. 70-988-M.
• Citation: 365 F. Supp. 1007
• Parties: John D. VAN TESLAAR v. Admiral Chester R. BENDER, Commandant of the United States Coast Guard.
• Court: U.S. District Court — District of Maryland

365 F. Supp. 1007

John D. VAN TESLAAR v. Admiral Chester R. BENDER, Commandant of the United States Coast Guard.

Civ. A. No. 70-988-M.

United States District Court, D. Maryland.

October 17, 1973.

Robert C. Prem, Baltimore, Md., for plaintiff.

George Beall, U. S. Atty., and James M. Kramon, Asst. U. S. Atty., Baltimore, Md., and John H. Minan, Dept. of Justice, Washington, D. C., for defendant.

JAMES R. MILLER, Jr., District Judge.

Memorandum Opinion

This is an administrative appeal pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706, from a ruling of the Commandant of the U.S. Coast Guard, which resulted in plaintiff's having been found guilty of having shoved and orally abused a superior officer. Plaintiff has filed a motion for summary judgment and defendant has responded with a cross motion for summary judgment. The issues presented by the motions (as agreed in the pretrial order) are as follows:

1. Whether the Coast Guard has complied with 46 C.F.R. 137.05-10, and if not, whether noncompliance constitutes a jurisdictional bar to the administrative proceedings against the plaintiff.

2. Whether the substitution of hearing examiners midway in the administrative evidentiary proceedings, without a recommencement of the proceedings de novo, deprived plaintiff of a fair hearing.

3. Whether plaintiff was denied a fair hearing because of improper venue of the administrative proceedings.

4. Whether the plaintiff was denied a fair hearing as a result of the hearing examiner's refusal to issue subpoenas with respect to witnesses and documentary evidence located in Houston, Texas.

The parties agreed that the motions should be decided upon the record made before the administrative agency, the U.S. Coast Guard.

The background of this dispute is as follows. Plaintiff, a merchant marine officer, had an altercation with a superior officer while their ship was tied up at Houston, Texas. The difficulty between the two men arose out of their different views as to the most appropriate way to fight a fire which had occurred on January 7, 1966, in one of the ship's boilers. A scuffle ensued in which plaintiff was struck in the eye by the other officer and left the ship in Houston where he apparently spent approximately ten days in the hospital. (tr. 224-226).

On January 7, 1966, a complaint alleging that plaintiff was guilty of misconduct was filed with the U.S. Coast Guard. Soon thereafter, an investigation was commenced pursuant to 46 U. S.C. § 239.

I

Plaintiff contends that 46 C.F.R. § 137.05-10 required the investigating officer assigned to plaintiff's case to advise plaintiff "informally of the substance of the complaint against him and afford him an opportunity to make such comment as he may desire." Relying upon the record, plaintiff states that the evidence clearly establishes that he was not informed of the substance of the complaint until charges had been formally served on him. (See tr. 146-173).

Assuming that the Coast Guard did fail to give plaintiff informal notice of the complaint, the important question is whether failure to give said notice is a jurisdictional bar to the administrative proceedings which were subsequently instituted against the plaintiff pursuant to 46 U.S.C. § 239. In substance, plaintiff appears to argue that § 137.05-10 is an element of due process which he has been denied. Plaintiff states that § 137.05-10 was intended to introduce fairness into the charging procedure by allowing the person who is to be charged the opportunity to rebut the complaint and thereby persuade the investigating officer not to file formal charges. Plaintiff also contends that § 137.05-10 provides a safeguard for civilians who are prosecuted by the military.

In reply, the defendant argues that even if informal notice had not been delivered to the plaintiff, said failure could be no more than harmless or non-prejudicial error. Citing 5 U.S.C. § 706(2), defendant claims that this court must take due account "of the rule of prejudicial error" when reviewing the actions of the Commandant. Further, as stated in NLRB v. Seine & Line Fishermen's Union of San Pedro, 374 F.2d 974, 981 (9th Cir. 1967), cert. denied, 389 U.S. 913, 88 S.Ct. 239, 19 L. Ed.2d 261 (1967), "`the burden of showing that prejudice has resulted' is on the party claiming injury from the erroneous rulings." See also Arthur Murray Studio v. FTC, 458 F.2d 622 (5th Cir. 1972); National Capital Airlines v. CAB, 136 U.S.App.D.C. 86, 419 F.2d 668 (1969), cert. denied, 398 U.S. 908, 90 S. Ct. 1693, 26 L.Ed.2d 68 (1970); Pacific Molasses Co. v. FTC, 356 F.2d 386 (5th Cir. 1966). Relying upon the administrative record, the defendant points out that the plaintiff made no objection concerning the Coast Guard's failure to comply with § 137.05-10 on February 28, 1966, the day plaintiff was served with formal charges. (tr. 146-173). In fact, the record discloses that the plaintiff made no objection with respect to § 137.05-10 until August 16, 1966, after the Coast Guard had put on its entire case against the plaintiff. Finally, defendant notes that the plaintiff has made absolutely no showing of prejudice.

The Fourth Circuit has stated in United States v. Heffner, 420 F.2d 809 at 811 (4th Cir. 1969) that "An agency of the government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, its action cannot stand and courts will strike it down." See also Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); United States ex rel. Brooks v. Clifford, 409 F.2d 700, 706 (4th Cir. 1969); United States v. Leahey, 434 F. 2d 7 (1st Cir. 1970); Hollingsworth v. Balcom, 441 F.2d 419 (6th Cir. 1971); Smith v. Resor, 406 F.2d 141 (2d Cir. 1969); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968). The proper interpretation of the rule of these cases is found in American Farm Lines v. Black Ball, 397 U.S. 532, 90 S.Ct. 1288, 25 L. Ed. 547 (1970), where Mr. Justice Douglas for the Court at 538-539, 90 S. Ct. at 1292 differentiates between agency rules intended to confer important procedural benefits upon individuals and those rules ". . . intended primarily to facilitate the development of relevant information for the agency's use . . .."

In his opinion in this case, the Commandant, referring to 46 C.F.R. § 137.05-10, said:

"This informational regulation is designed obviously to save time on a preliminary looking into a complaint. When A has been heard to accuse B, it is not only reasonable but economical to let B dispute A's statement, if he will, before decision is made to charge B." (p. 4 Commandant's Decision, Appeal No. 1678) (Emphasis supplied).

The court agrees with the Commandant that § 137.05-10 was promulgated for the purpose of providing relevant information for the investigating officer's use in deciding whether or not to bring charges. It was not intended primarily to confer important procedural benefits upon individuals as was the case in United States v. Heffner, supra, and the other cited decisions. As in American Farm Lines v. Black Ball,

"there is thus no reason to exempt this case from the general principle that `it is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party.'" (Citations omitted). 397 U.S. at 539, 90 S.Ct. at 1292.

At most, a failure to observe § 137.05-10 deprived the plaintiff of an opportunity to deny the substance of the complaint against him before the investigating officer preferred charges. The charges filed by the Coast Guard constituted the reason for the application of due process rights. The complaint filed by the seaman did not actually initiate the suspension and revocation proceedings against the plaintiff. As set forth in 46 C.F.R. § 137.01-30, suspension and revocation proceedings are instituted by an investigating officer only after an investigation. Section 137.05-10 appears to be no more than a tool of the investigator which enables him to receive information from the person being investigated. The section may also have a side-effect of alerting the accused of the complaint against him so that he can begin to prepare his defense. Nevertheless, it is § 137.05-25 that requires timely service of charges on the accused so that he has time to prepare a defense, not § 137.05-10.

No substantial prejudice was shown by the plaintiff as a result of the assumed failure of the Coast Guard to comply with § 137.05-10. As noted, neither plaintiff nor his attorney objected with respect to this issue until the Coast Guard had put on its entire case before the hearing examiner. The mere fact that the charges were brought against the plaintiff when there was the possibility, however remote, that no charges would have been brought if plaintiff had been afforded the opportunity to tell his story before a decision had been made to bring the charges, does not constitute "substantial prejudice." The plaintiff appeared at the administrative hearings with counsel, cross-examined the witnesses who were presented against him, and presented evidence in his own behalf. His employment of his procedural rights was not prejudiced in any way by the failure, if indeed there was a failure, of the Coast Guard to comply with § 137.05-10.

II

On December 8, 1966, after the Coast Guard had put on its entire case, the first hearing examiner recused himself from the proceedings. The examiner, Martin Norris, found that plaintiff's attorney, Jack Steinman, had accepted an offer from Mr. Norris's brother to represent a...