| Suspension and Revocation Appeals Authority | 2726 - BADUA | By an Order dated October 17,2A19, an Administrative Law Judge (ALJ) of the United States Coast Guard denied as untimely what he construed to be Respondent Mr. Jeffrey John Badua, Jr.'s request for a hearing on the Coast Guard's Notice of Failure to Complete Settlement Agreement (Respondent's request was captioned "Motion to Enforce Settlement Agreement").
Respondent appeals.
At all relevant times, Respondent held a Merchant Mariner Credential (MMC) issued by the United States Coast Guard. On February 27,2018, Respondent took a required preemployment drug test, pursuant to 46 CFR Part 16. The urine sample provided by Respondent tested positive for hydromorphone. Respondent maintains that the positive result was the result of a one-time, inadvertent use of another person's prescription medication.
The Coast Guard issued its Complaint against Respondent's MMC on April 13, 2018, for use of a dangerous drug, in violation of 46 USC § 7704(c). On April 30,2018, the Coast Guard and Respondent entered into a Settlement Agreement. By signing the Settlement Agreement, Respondent admitted the jurisdictional and factual allegations of the Coast Guard Complaint. The Settlement Agreement provided that Respondent's MMC was revoked, but that the revocation would be stayed in order to allow Respondent to complete the elements of "cure" from use or addiction to use of a dangerous drug. See 46 U.S.C. § 7704;33 CFR § 20.502;46 CFR § 5.901(d); Appeal Decision 2535 (SWEENEY), 1992 WL I 2008768. | Appeal No. 2726 | Suspension and Revocation Appeals Authority | 4/27/2020 | 4/27/2020 | | 5/20/2020 |
| Suspension and Revocation Appeals Authority | 1523 - MICHAELS | By order dated 23 June 1965 at Seattle, Washington, an
Examiner of the United States Coast Guard, after conducting a
hearing at Portland, Oregon, revoked Appellant's document upon
finding him guilty of the charge of "conviction for a narcotic drug
law violation." The charge was proved by evidence that, on 16
September 1964, Appellant was convicted by the Circuit Court of the
State of Oregon for the County of Multnomah, a court of record, for
violating a narcotic drug law of the State of Oregon (illegal sale
of marijuana).
At the hearing, Appellant was represented by professional
counsel. Appellant entered a plea of not guilty to the charge and
specification at the beginnings of the hearing on 17 July 1964.
The Investigating Officer introduced evidence of an indictment
against Appellant for the unlawful sale of marijuana, and a jury
verdict finding Appellant guilty as charged in the indictment. The
Investigating Officer then rested. Counsel for Appellant moved to
dismiss the charges on the ground that there was no evidence of a
conviction since the court had not yet rendered judgement in the case. The Examiner agreed that the proceedings were premature but
denied the motion and adjourned the hearing until after the court
acted. | Appeal No. 1523 | Suspension and Revocation Appeals Authority | 6/23/1965 | 6/23/1965 | | 3/1/2018 |
| Suspension and Revocation Appeals Authority | 1524 - PAUL | By order dated 7 July 1965, an Examiner of the United States
Coast Guard at New York, New York suspended Appellant's seaman documents for two months on nine months' probation upon finding her guilty of misconduct. The specification found proved alleges that while serving as a stewardess on board the United States SS ARGENTINA under authority of the document above described, on 13 May 1965, Appellant wrongfully created a disturbance.
At the hearing, Appellant was represented by professional
counsel. Appellant entered a plea of not guilty to the charge and
specification.
The Investigating Officer introduced in evidence the testimony
of several eyewitnesses to the incident. The only defense witness
was not present when the alleged offense occurred.
At the end of the hearing, the Examiner rendered a written decision in which he concluded that the charge and specification
had been proved. The Examiner entered the order of suspension
mentioned above. | Appeal No. 1524 | Suspension and Revocation Appeals Authority | 11/4/1965 | 11/4/1965 | | 3/1/2018 |
| Suspension and Revocation Appeals Authority | 1525 - BRENAN | This appeal has been taken in accordance with Title 46 United
States Code 239(g) and Title 46 Code of Federal Regulations
137.30-1.
By order dated 10 May 1965 at Seattle, Washington, an Examiner
of the United States Coast Guard, after conducting a hearing at
Portland, Oregon, revoked Appellant's document upon finding him
guilty of misconduct. The offenses alleged were proved by evidence
that while serving as a fireman-watertender on board the United
States SS OCEANIC SPRAY under authority of the document above
described, Appellant wrongfully failed to stand his watches on 24
and 25 December 1964 as well as on 21, 24 and 25 February 1965, and
9 March 1965, while the ship was at sea or in a foreign port.
Each offense is supported by a properly prepared entry in the
ship's official logbook. No other evidence was introduced by the
Investigating Officer and there was no evidence in defense since
Appellant was not present at the hearing.
On 15 April 1965, the foreign voyage was completed at Portland. On the morning of this date, Appellant was served with the charge and specification and ordered to appear for a hearing on 16 April. At this time, he voluntarily deposited his document with the Investigating Officer. Appellant was not present or represented when the hearing was convened on 16 April and nothing had been heard from him. The Examiner continued the case subject to call. | Appeal No. 1525 | Suspension and Revocation Appeals Authority | 11/12/1965 | 11/12/1965 | | 3/1/2018 |
| Suspension and Revocation Appeals Authority | 2728 - DILLON | On September 6, 2018, an Administrative Law Judge (ALJ) of the United States Coast Guard issued findings and conclusions from the bench, finding the Coast Guard's Complaint against the Merchant Mariner Credential of Respondent Michael John Dillon proved, and ordering the revocation of Respondent's credential.
The Coast Guard complaint charged Respondent with use of a dangerous drug, based upon a positive result in a government-mandated periodic drug test.
Respondent appeals.
FACTS
At all times relevant to these proceedings, Respondent was the holder of a Merchant Mariner Credential issued to him by the United States Coast Guard. [CG Ex. 1].
On January 29,2018, Respondent submitted to a government -mandated periodic urine drug test, pursuant to an application for raise-in-grade of his credential. [Tr. Vol. II at 144.]
Pursuant to regulation, the sample provided by Respondent was a "split sample": the urine sample was divided by the collector into two separate specimen containers-the primary specimen and the split specimen. [Tr. Vol. I at34-35,86-90.] Respondent signed a Federal Drug Testing Custody and Control Form (DTCCF) for provision of his urine specimen. [Tr. Vol II at 144.1 Respondent's primary urine specimen was tested on January 30 by Alere Toxicology.
That test retuned a positive result for marijuana metabolites. [Tr. Vol. II at 144.) Results of the test were forwarded to a medical review officer (MRO). [id.] | Appeal No. 2728 | Suspension and Revocation Appeals Authority | 4/8/2020 | 4/8/2020 | | 6/2/2020 |
| Suspension and Revocation Appeals Authority | 2729 - COOK | The Coast Guard complaint charged Respondent with use of a dangerous drug, based upon a positive result in a government-mandated random drug test. The D&O found the charge proved and revocation appropriate, and directed Respondent to surrender his credential.
However, because Respondent had already made substantial progress toward cure, the D&O provided for a future hearing to evaluate Respondent's evidence of cure. Respondent filed a
notice of appeal from the D&O.
On April 17, 2019, the ALJ issued a Cure Order, finding Respondent had demonstrated cure from the use of a dangerous drug by completion of a drug rehabilitation program and demonstration of twelve months of non-association. The Cure Order directed the return of Respondent's credential, and converted the period of revocation served to a period of outright
suspension. The Coast Guard appealed.
Both Respondent's appeal from the D&O and the Coast Guard's appeal from the Cure Order are now ripe for decision.
The ALJ's findings and decision were lawful, based on correct interpretation of the law, and supported by the evidence. The Decision and Order's finding of proved as to a charge of
drug use against Respondent was consistent with applicable law and public policy, and the mandatory sanction of revocation was properly ordered. The Cure Order's finding of cure, and conversion of the order of revocation into one of outright suspension was justified. No further action against Respondent's credential is warranted in these circumstances. | Appeal No. 2729 | Suspension and Revocation Appeals Authority | 7/6/2020 | 7/6/2020 | | 7/17/2020 |
| Suspension and Revocation Appeals Authority | 2731 - MCLIN | Commandant Decision on Appeal, denying the Coast Guard's appeal, and affirming the ALJ's decision and order finding proved charges of misconduct and dangerous drug use, and revoking Respondent's MMC. | Appeal No. 2731 | Suspension and Revocation Appeals Authority | 7/23/2020 | 7/23/2020 | | 8/7/2020 |
| Suspension and Revocation Appeals Authority | 2730 - BLAKE | Commandant Decision on Appeal, denying the Coast Guard's appeal, and affirming the ALJ's decision and order finding proved both charges, for violation of law and misconduct, for possession of a handgun onboard a documented vessel, with order of 12-month outright suspension | Appeal No. 2730 | Suspension and Revocation Appeals Authority | 7/17/2020 | 7/17/2020 | | 8/7/2020 |
| Suspension and Revocation Appeals Authority | 2699 - MAXWELL | On September 23, 2010, the Coast Guard filed an original Complaint against Respondent, which was later amended. [D&O at 1] On November 30, 2010, after receiving an extension of time, Respondent filed an Answer to the original Complaint wherein he admitted all jurisdictional allegations but denied all factual allegations. [Id.]
The Coast Guard filed its first Amended Complaint in the matter on December 20, 2010. [D&O at 1] On January 7, 2011, the Coast Guard filed a second Amended Complaint. [D&O at 2] The factual allegations of the second Amended Complaint alleged as follows:
1. On 07/29/2010, the Respondent, Earl W. Maxwell . . . was convicted of Use/Possession of Drug Paraphernalia by the District Court of Mobile County, Alabama.
2. Use/Possession of Drug Paraphernalia is a misdemeanor under the Code of the State of Alabama, Title 13A; Criminal Code Section 13A-12-260.
3. Code of the State of Alabama, Title 13A; Criminal Code Section 13A-12-260 is a Dangerous Drug Law of the State of Alabama.
4. The Respondent, Earl W. Maxwell was convicted within the last 10 years of violating a Dangerous Drug Law of a State, as described by Title 46 U.S. Code Section | Appeal No. 2699 | Suspension and Revocation Appeals Authority | 7/13/2012 | 7/13/2012 | | 8/24/2020 |
| Suspension and Revocation Appeals Authority | 2733 - SCHWIEMAN | On Septernber 13, 2019, an Administrative Law Judge (ALJ) of the United States Coast Guard issued a Decision & Order (D&O), finding proved against Respondent Daniel Walter Schwieman one charge of violation of regulation, for carriage of more than six passengers for hire on an uninspected vessel of less than 100 gross tons, in violation of 46 CFR $ 176.100(a). The ALJ ordered Respondent's Merchant Mariner Credential (MMC) suspended for one month outright, on six months probation. The Coast Guard appeals.
The vessel ALLORA is a vessel of 20 gross tons and is owned by Offshore,LLC ("Offshore"). [D&O at 5; CG Ex. 5, 6.] On June 16, 20T8, the vessel ALLORA did not have a Certificate of Inspection (COf. [D&O at5,Tr. at69.]
Ms. M. Nichols ("the charterer") entered into a charter agreement with Offshore, for use of the ALLORA on June 16,2018. [D&O at 5; CG Ex. 3 at 52-55; Tr. at 159-161.] The charter agreement required the charterer to only use a "qualified operator and crew," and included a "weather policy'' that reserved Offshore's right to cancel or delay the charter in the event of dangerous weather conditions, "even if you and the captain believe they are safe." [CG Ex. 5 at 52-53.1 The charterer paid $ 1,200 for use of the vessel. [D&O at 5; Tr. at 66, 16l.]
On June 16,2018, Respondent operated the ALLORA, as master, on the waters of Lake Michigan, with the charterer and eleven passengers on board. [D&O at 5; Tr. at65-69,160; CG Ex. 3 at 49-57.1 Lake Michigan is a navigable water of the United States. [D&O at 5.]
CONCLUSION
The ALJ's ultimate findings and conclusions were neither erroneous nor an abuse of discretion. His decision complies with 33 CFR $ 20902, and he exercised his lawful discretion in assessing the credibility of the evidence presented. | Appeal No. 2733 | Suspension and Revocation Appeals Authority | 11/20/2020 | 11/20/2020 | | 11/24/2020 |
| Suspension and Revocation Appeals Authority | 2732 - CAMP | On April 16, 2019, an Administrative Law Judge (ALJ) of the United States Coast Guard dismissed the Coast Guard's complaint against Respondent Christopher Joseph Camp, in a bench ruling. The complaint alleged two counts of misconduct, for refusing to submit to a drug test required by 46 CFR Part 16 and required by company policy. The Coast Guard appeals.
On June 29, 2018, the Coast Guard filed a Complaint charging Respondent with two counts of misconduct. The first count charged
Respondent with refusing to submit to a drug test required by 46 CFR Part 16 by failing to remain at the collection site until the testing process was complete. The second count charged Respondent with violation of his employer's company policy, requiring compliance with drug testing procedures, by failing to remain at the collection site until the testing process was complete. Both charges were based on an April 24, 2018, random drug test in Morgan City, Louisiana. | Appeal No. 2732 | Suspension and Revocation Appeals Authority | 11/10/2020 | 11/10/2020 | | 11/17/2020 |
| Suspension and Revocation Appeals Authority | 2735 - ROBB | FACTS
At all times relevant to these proceedings, Respondent was the holder of a Merchant Mariner Credential issued to him by the United States Coast Guard. [D&O at 4, 24.]
On August 31, 2018, Respondent was a crewmember of the SLNC PAX, which had been selected for random drug testing. [D&O at 4.] On August 31, 2018, Respondent provided a urine sample to a certified specimen collector. [Id.] He signed the Federal Drug Testing Custody and Control Form (CCF), and initialed the seals that are intended to be placed on the specimen bottles while the seals were still attached to the CCF. [Id. at 5.] The collector poured
Respondent's sample into two specimen bottles and sealed the bottles in Respondent's presence. [Id.]
Respondent's specimen was tested by a laboratory accredited to perform drug testing comporting with Department of Transportation (DOT) standards. The laboratory determined that Respondent's sample was positive for amphetamines at a level of 552 ng/mL and for methamphetamines at a level of 9057 ng/mL, exceeding the cut-off levels for positive tests found in DOT regulations. [D&O at 6, 25.]
BASES OF APPEAL
Respondent raises the following issues on appeal:
I The ALJ's Ultimate Findings of Fact and Conclusions of Law Nos. 5 and 8 are not supported by substantial evidence.
II. The ALI abused his discretion by relying upon inherently incredible testimony. | Appeal No. 2735 | Suspension and Revocation Appeals Authority | 8/17/2021 | 8/17/2021 | | 8/30/2021 |
| Suspension and Revocation Appeals Authority | 2736 FREMEN | On May 5, 2021, an Administrative Law Judge (ALJ) of the United States Coast Guard issued an Order of Default (OD) for Respondent Derrick Thomas Fremen's failure to attend prehearing conferences, finding proved the Coast Guard's Amended Complaint filed on February 18, 2021 (Amended Complaint) against the Merchant Mariner Credential of Respondent, and ordering the revocation of Respondent's credential.
CONCLUSION
The ALJ's decision to issue an Order of Default was not an abuse of discretion. The order imposed by the ALJ, revoking Respondent's Merchant Mariner Credential, was not excessive. There is no reason to disturb the AU's Order. | Appeal No. 2736 | Appeal No. 2723 | 11/22/2021 | 11/22/2021 | | 12/1/2021 |
| Suspension and Revocation Appeals Authority | 2737 - STINZIANO | On April 20, 2022, an Administrative Law Judge (ALJ) of the United States Coast Guard issued a Decision and Order (D&O), finding proved three charges of misconduct against the Merchant Mariner Credential (MMC) of Respondent Mark Steven Stinziano. The ALJ ordered Respondent's credential suspended for four months outright, with a further suspension of eight months suspended on twelve months probation.
CONCLUSION
Concerning Charges 1, 2, and 6 and the allegations in Charge 5 relating to the Second Mate, the ALJ' s findings and rulings were lawful and consistent with law and precedent. He exercised his lawful discretion in assessing the credibility of the evidence presented. In view of uncertainties with respect to the interpretation of 18 U.S.C. § 2244(b) and 18 U.S.C. § 2246(3), the case will be remanded.
ORDER
The ALJ's Order dated April 20, 2022, is set aside and the case is REMANDED for proceedings consistent with this opinion. | Appeal No. 2737 | Suspension and Revocation Appeals Authority | 1/6/2023 | 1/6/2023 | | 3/14/2023 |