Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MILLER v. SMITH

November 12, 1968

Roy MILLER, Plaintiff,
v.
Willard J. SMITH, Commandant, United States Coast Guard, Defendant



The opinion of the court was delivered by: WYATT

WYATT, District Judge.

 This is a motion for defendant Commandant of the Coast Guard (Commandant) for an order sustaining an objection to an interrogatory served by plaintiff (Fed.R.Civ.P. 33) and for a protective order in respect of the same interrogatory (Fed.R.Civ.P. 33, 30(b)).

 The action is one for judicial review of an Order and Decision of the Commandant made on November 24, 1967. Such review is provided for by Section 10 of the Administrative Procedure Act (5 U.S.C. §§ 701-706).

 There is no doubt but that the Court has jurisdiction as provided in the Act just cited. Whether venue is proper might perhaps be questioned but defendant has answered and has waived any objection to the venue.

 The issue posed by this motion is whether plaintiff is entitled to copies of memoranda prepared by members of the staff of the Commandant. To resolve this issue requires review of the proceedings in some detail.

 Plaintiff holds a license as a pilot issued by the Coast Guard. 46 U.S.C. §§ 214, 224; 46 C.F.R. §§ 10.05-39, 10.05-43. Undoubtedly plaintiff also holds a license as a master; in such cases there are not two licenses but the master's license is endorsed to show that the holder can act as pilot. 46 C.F.R. § 10.05-42.

 Plaintiff was charged with negligence in connection with a collision between two vessels in New York Harbor on March 11, 1965, on one of which plaintiff was then acting as pilot. This was by authority of 46 U.S.C. § 239 which provides also that the Commandant may make regulations to govern the investigation of marine casualties and all acts of incompetency or misconduct of licensed persons, whether or not connected with a marine casualty. The same statute provides in substance and in relevant part that if it is found that a licensed pilot has been negligent such findings shall be recited in an order and the license of the pilot shall be suspended or revoked.

 The provision in the Code (46 U.S.C. § 239(g)) is somewhat confusing as to the procedure. It provides that the Commandant shall review the "whole record" of the investigation and that he in an appropriate case shall by order suspend the license of the person involved. The section further provides that an appeal may then be taken to the Commandant. The reason for this lies in the transfers to the Commandant, by statute or Reorganization Plan, of what were formerly separate functions. In any event, the Commandant has delegated to a civilian examiner his authority to make an order of suspension and revocation in the first instance. 46 C.F.R. §§ 1.15, 137.20-1, 137.20-155, 137.20-170. The Commandant has specifically declared that he "has not delegated the authority to make final decisions on appeals". 46 C.F.R. § 1.10(a).

 The charge was served on plaintiff (46 C.F.R. § 137.05-25) and was then heard in New York by an Examiner (46 C.F.R. § 137.20-1) who made an order on November 29, 1965 (46 C.F.R. § 137.20-155). This was the "initial decision" (5 U.S.C. § 557(b)). The Examiner found that plaintiff was guilty of negligence in that he had "violated several rules for the navigation of vessels" (Klein affidavit, p. 2). The Examiner ordered his licenses, as pilot, master or otherwise, suspended for two months.

 As provided in 46 U.S.C. § 239(g), plaintiff appealed to the Commandant from the initial decision of the Examiner.

 The Commandant on November 24, 1967, approved the findings and conclusions of the Examiner but remitted the suspension of licenses.

 The decision of the Commandant on appeal is final and under the cited statute is a personal decision of the Commandant. The Regulations, reflecting the statute, provide: "The Commandant is the final and sole authority for action on appeals or reviews of suspension and revocation proceedings" (46 C.F.R. § 1.10(a)).

 There is no decisional authority of any sort between the Examiner and the Commandant. The appeal is directly to the Commandant. The responsibility for decision is his alone and the manner in which he uses available personnel to assist him is for him alone to decide.

 The statute requires only that "the appellant shall be allowed to be represented by counsel" (46 U.S.C. § 239(g)). It is not required by the statute that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.