UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_________________________________ 

UNITED STATES COAST GUARD, 

Complainant, 

vs. 

JACOB PAUL FERNANDEZ, 

Respondent, 

_________________________________ 

Docket Number 2023-0365 

Enforcement Activity Number 7751250 

DEFAULT DECISION 

Issued: February 1, 2024 

By: George J. Jordan, Administrative Law Judge 

Appearances: 

Paul Tramm 

Investigating Officer 

Daniel B. Schafer, Esq. 

Suspension and Revocation Center of Expertise 

For the Coast Guard 

Jacob Paul Fernandez, Pro se

For the Respondent 
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This matter comes before me based on the United States Coast Guard’s (Coast Guard) 

Motion for Default Order (Motion for Default). As of the date of this order, Jacob Paul 

Fernandez (Respondent) has not responded to the Motion for Default nor filed an answer to the 

Complaint. Upon review of the record and pertinent authority, I am GRANTING the Coast 

Guard’s Motion for Default and find the allegations in the Complaint PROVED.

On or about October 17, 2023, the Coast Guard issued a Complaint against Respondent 

seeking to revoke his Merchant Mariner Credential (MMC) for violating 46 U.S.C. § 7703(1)(B) 

and 46 C.F.R. § 5.27 by refusing to take a required drug test. Specifically, the Coast Guard 

alleges Respondent departed the testing facility prior to the completion of a required drug test. 

The Coast Guard served the Complaint on Respondent by express courier with the 

evidence of delivery showing receipt on October 20, 2023. On November 13, 2023, the Coast 

Guard filed a Motion for Default serving Respondent again by express courier with the delivery 

receipt showing acceptance by Respondent on November 16, 2023. To date Respondent has not 

filed an answer to the Complaint or replied to the Motion for Default. 

As Respondent has not filed an answer nor asserted good cause for not filing an answer 

within the time specified and pursuant to 33 C.F.R. § 20.308, I find Respondent in DEFAULT. 

A default constitutes an admission of all facts alleged in the Complaint and waiver of the right to 

hearing on those facts. 33 C.F.R. § 20.310(c). I find the following facts ADMITTED: 

1. On April 13, 2023 Respondent took a required random drug test pursuant to 46 C.F.R. 

Part 16. 

2. Respondent reported to American Diagnostics of Seattle, where Tyson Shellhorn 

initiated the collection process by completing Step 1 of the Federal Drug Testing 

Custody and Control Form for Specimen ID# 2070867601, allowing Respondent to 

select an individually wrapped or sealed collection container from collection kit 

materials, in accordance with 49 C.F.R. § 40.63. 
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3. Respondent provided an initial urine specimen with a temperature of 85 degrees 

Fahrenheit, which is below the acceptable limits of 90-100 degrees Fahrenheit. 

4. Prior to the completion of the collection process Respondent failed to remain at the 

urine collection site. 

5. Respondent's failure to remain at the urine collection site is a refusal to take a 

required drug test pursuant to 46 C.F.R. Part 16, as described by 49 C.F.R. § 

40.191(a)(2). 

6. Refusal to take a required drug test is Misconduct as described by 46 U.S.C. § 

7703(1)(B) and defined by 46 C.F.R. § 5.27. 

Upon finding Respondent in default, I must now issue a decision against Respondent. 33 

C.F.R. § 20.310(d). A review of record shows the Coast Guard alleged facts sufficient to 

establish Respondent committed misconduct as described in 46 U.S.C. § 7703(1)(b), 46 C.F.R. § 

5.27, 49 C.F.R. § 40.191(a)(2), and as interpreted by Appeal Decisions 2690 (THOMAS) and 

2685 (MATT) (2010). Therefore, I find Respondent refused to submit to a properly ordered drug 

test. 

SANCTION 

Having found Respondent in default and all of the allegations in the Complaint proved, I 

now must determine the appropriate sanction. 33 C.F.R. § 20.902(a)(2). It is within the sole 

discretion of the Administrative Law Judge (ALJ) to determine the appropriate sanction at the 

conclusion of the case. Appeal Decision 2362 (ARNOLD) (1984). Title 49 C.F.R. § 5.569 

contains the Table of Suggested Range of Appropriate Orders (Table) for various offenses. The 

purpose of this Table is to provide guidance to the ALJ and promote uniformity in orders 

rendered. Appeal Decision 2628 (VILAS) (2022), aff’d NTSB Order No. ME-174. However, 

this Table is not binding on an ALJ and either aggravating or mitigating circumstances may 

support a sanction different from the Table. 46 C.F.R. § 5.569(b)(3). 
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The Coast Guard proved Respondent committed misconduct by refusing a drug test. The 

correlating sanction in the Table is outright suspension for 12-24 months. 46 C.F.R. § 5.569(d) 

tbl. 5.569. When selecting an appropriate sanction from the Table an ALJ can consider 

aggravating and mitigating factors. 

Here, the Coast Guard is seeking a sanction of revocation. When a sanction departs from 

the guidance set forth in the Table there must be “a clearly articulated explanation of aggravating 

factors.” Appeal Decision 2455 (WARDELL) (1987), aff'd, NTSB Order No. EM-149 (1988); 

Appeal Decision 2702 (CARROLL) (2013) (quoting Commandant v. Moore, NTSB Order No. 

EM-201 (2005)). A sanction of revocation can be appropriate in refusal-to-test cases, but only if 

there are aggravating circumstances in addition to the refusal. Appeal Decision 2694 

(LANGLEY) (2010) (affirming sanction of revocation for refusal to test when respondent also 

providing a substituted specimen). Thus, I must determine if there are any aggravating factors 

admitted. 

Here, the admitted facts do not contain any aggravating circumstances. In the Complaint 

the Coast Guard avers Respondent’s provided specimen being five degrees outside the 

acceptable temperature range is aggravating. However, I do not find this fact aggravating 

because by itself it does not show Respondent intended to subvert the drug testing scheme and 

thereby increase the risk of an impaired mariner serving in a safety sensitive position. Id. See 

Appeal Decision 2702 (CARROLL); Appeal Decision 2455 (WARDELL). No precedent, Coast 

Guard or otherwise, provides a specimen five degrees outside the acceptable temperature range 

indicates subversion of the drug testing scheme thereby imperiling the safety of life and property 

at sea. See Appeal Decision 2708 (SOLOMON) (2015). Therefore, I do not find the 

circumstance asserted by the Coast Guard aggravating. 
5 

Since, the Coast Guard failed to supply any aggravating facts necessary to support a 

sanction above what is provided in the Table, I find an 18-month suspension appropriate. 

Specifically, a 12-month outright suspension followed by 6 months’ suspension remitted on 6 

months’ probation. If at any time during probation, Respondent commits any offenses which are 

grounds for suspension or revocation as listed in Chapter 77 of Title 46, U.S. Code, 

Respondent’s credential will be outright suspended for an additional 6 months. 

WHEREFORE 

ORDER 

IT IS HEREBY ORDERED, all of Respondent’s Coast Guard issued credentials, 

including Respondent’s MMC, are SUSPENDED for 18 MONTHS, with a 12-month

OUTRIGHT SUSPENSION followed by an additional 6 months’ suspension remitted on 6 

months’ probation. Respondent’s suspension shall begin on the date he surrenders his 

credentials to the Coast Guard. If at any time during probation, it is found that Respondent 

committed any offenses which are grounds for suspension or revocation as listed in Chapter 77 

of Title 46, U.S. Code then Respondent’s credential will be outright suspended for an additional 

6 months.

 IT IS FURTHER ORDERED, Respondent shall immediately deliver all Coast Guard 

issued credentials, licenses, certificates, or documents, including the MMC, by mail, courier 

service, or in person to: Paul Tramm, USCG Sector Puget Sound, 1519 Alaskan Way S. Seattle, 

WA 98134. In accordance with 18 U.S.C. § 2197, if Respondent knowingly continues to use 

the Coast Guard issued MMC, Respondent may be subject to criminal prosecution.

IT IS FURTHER ORDERED, pursuant to 33 C.F.R. § 20.310(e), for good cause 

shown, an ALJ may set aside a finding of default. A motion to set aside a finding of default may 
6 

be filed with the ALJ Docketing Center in Baltimore. The motion may be sent to the U.S. Coast 

Guard Administrative Law Judge Docketing Center; Attention: Hearing Docket Clerk; Room 

412; 40 S. Gay Street; Baltimore, MD 21202-4022. 

PLEASE TAKE NOTICE, service of this Default Order on the parties serves as notice 

of appeal rights set forth in 33 C.F.R. § 20.1001-20.1004 (Attachment A). 

IT IS SO ORDERED 

Done and dated, February 1, 2024, 

Seattle, Washington 

______________________________ 

GEORGE J. JORDAN 

UNITED STATES COAST GUARD 

ADMINISTRATIVE LAW JUDGE 
7 

ATTACHMENT A 

TITLE 33 - NAVIGATION AND NAVIGABLE WATERS 

CODE OF FEDERAL REGULATIONS 

PART 20 RULES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR FORMAL 

ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD 

SUBPART J - APPEALS 

33 C.F.R. § 20.1001 General. 

(a) Any party may appeal the ALJ's decision by filing a notice of appeal. The party 

shall file the notice with the U. S. Coast Guard Administrative Law Judge Docketing 

Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, 

MD 21201-4022. The party shall file the notice 30 days or less after issuance of the 

decision, and shall serve a copy of it on the other party and each interested person. 

(b) No party may appeal except on the following issues: 

(1) Whether each finding of fact is supported by substantial evidence. 

(2) Whether each conclusion of law accords with applicable law, precedent, and 

public policy. 

(3) Whether the ALJ abused his or her discretion. 

(4) The ALJ's denial of a motion for disqualification. 

(c) No interested person may appeal a summary decision except on the issue that no 

hearing was held or that in the issuance of the decision the ALJ did not consider 

evidence that that person would have presented. 

(d) The appeal must follow the procedural requirements of this subpart. 

33 C.F.R. § 20.1002 Records on appeal. 

(a) The record of the proceeding constitutes the record for decision on appeal. 

(b) If the respondent requests a copy of the transcript of the hearing as part of the record 

of proceeding, then, -- 

(1) If the hearing was recorded at Federal expense, the Coast Guard will provide 

the transcript on payment of the fees prescribed in 49 CFR 7.45; but, 

(2) If the hearing was recorded by a Federal contractor, the contractor will 

provide the transcript on the terms prescribed in 49 CFR 7.45. 
8 

33 C.F.R. § 20.1003 Procedures for appeal. 

(a) Each party appealing the ALJ's decision or ruling shall file an appellate brief with the 

Commandant at the following address: U.S. Coast Guard Administrative Law Judge 

Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; 

Baltimore, MD 21201-4022, and shall serve a copy of the brief on every other party. 

(1) The appellate brief must set forth the appellant's specific objections to the 

decision or ruling. The brief must set forth, in detail, the -- 

(i) Basis for the appeal; 

(ii) Reasons supporting the appeal; and 

(iii) Relief requested in the appeal. 

(2) When the appellant relies on material contained in the record, the appellate 

brief must specifically refer to the pertinent parts of the record. 

(3) The appellate brief must reach the Docketing Center 60 days or less after 

service of the ALJ's decision. Unless filed within this time, or within another 

time period authorized in writing by the Docketing Center, the brief will be 

untimely. 

(b) Any party may file a reply brief with the Docketing Center 35 days or less after 

service of the appellate brief. Each such party shall serve a copy on every other party. 

If the party filing the reply brief relies on evidence contained in the record for the 

appeal, that brief must specifically refer to the pertinent parts of the record. 

(c) No party may file more than one appellate brief or reply brief, unless -- 

(1) The party has petitioned the Commandant in writing; and 

(2) The Commandant has granted leave to file an added brief, in which event the 

Commandant will allow a reasonable time for the party to file that brief. 

(d) The Commandant may accept an amicus curiae brief from any person in an appeal of 

an ALJ's decision. 

33 C.F.R. § 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record on appeal to determine whether the ALJ 

committed error in the proceedings, and whether the Commandant should affirm, 

modify, or reverse the ALJ's decision or should remand the case for further 

proceedings. 

(b) The Commandant shall issue a decision on every appeal in writing and shall serve a 

copy of the decision on each party and interested person.