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UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

GARY ELLSWORTH VAN AUKEN 

Respondent

_________________________________

Docket Number 2018-0411

Enforcement Activity No. 5754326

AMENDED DECISION AND ORDER

Issued: April 02, 2020

By Administrative Law Judge: Honorable George J. Jordan

Appearances:

Jennifer Mehaffey, Esq. 

Suspension and Revocation National Center of Expertise

CWO Larry W. Goade

Sector Puget Sound

For the Coast Guard

GARY ELLSWORTH VAN AUKEN, Pro se

For the Respondent
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I. BACKGROUND

The United States Coast Guard (Coast Guard) brought this administrative action under 46 

U.S.C. § 46 USC 7703(1)(A) and its underlying regulations at 46 C.F.R. Part 5, seeking to 

revoke Respondent Gary Van Auken’s Merchant Mariner Credential (MMC or Credential). On 

November 7, 2018, the Coast Guard filed a complaint against Respondent, alleging he violated 

46 U.S.C. § 7703(1)(A), 46 C.F.R. § 5.33, and 33 C.F.R. § 95.045(b) by operating the towing 

vessel BLACK HAWK while intoxicated. Respondent filed a timely answer, admitting the 

jurisdictional allegations but denying certain factual allegations and requesting a formal hearing.

On February 21, 2019, the Coast Guard filed a separate Complaint against Respondent, 

alleging another instance of operating a vessel while intoxicated and temporarily suspending 

Respondent’s MMC. Respondent waived the expedited procedures in the temporary suspension 

case, and the parties agreed to have both cases heard simultaneously.

Following completion of discovery, I held the hearing in this matter on May 14, 2019. 

Jennifer Mehaffey, Esq. represented the Coast Guard. Respondent represented himself, assisted 

by his wife, Shauna Van Auken. Following the hearing, I provided the transcript to both parties 

and gave them the opportunity to file post-hearing briefs containing proposed findings of fact, 

proposed conclusions of law, and argument supporting their positions. The Coast Guard filed a 

timely brief but Respondent did not. After the briefing deadline had passed, Respondent inquired 

of my staff if he could still submit proposed findings of fact and conclusions of law, and my staff 

informed him that he could file a motion explaining why he had not filed a timely submission 

and the Coast Guard would have the opportunity to respond, after which I would consider the 

issue. Respondent neither replied nor filed such a motion.

I have carefully reviewed the entire record in this case, including the testimony, exhibits, 

applicable statutes, regulations, and case law, and find the allegation PROVED. The Coast 
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Guard’s proposed findings of fact and conclusions of law are generally accepted as supported by 

the evidence and, to the extent they are relevant, are incorporated in this Decision and Order. 

II. FINDINGS OF FACT

1. Respondent is, and was at all times relevant to this proceeding, the holder of a 

Coast Guard-issued MMC. (Ex. CG-01).

2. On June 30, 2017, the Medical Director of the Coast Guard National Maritime 

Center issued Respondent a medical waiver for alcohol abuse, which would be 

invalidated by any incidents involving any type of substance abuse. (Ex. CG-10; 

Tr. at 21, 25, 36).

3. On May 1, 2018, Sause Brothers Ocean Towing Company employed Respondent 

as a master of an ocean-going tug. (Tr. at 40).

4. Sause Brothers has a zero-tolerance policy for alcohol on its vessels and in its 

offices. (Ex. CG-4; Tr. at 45).

5. The Souse Brothers tug BLACK HAWK (ON 515015) is a United States flagged 

towing vessel 112.1 feet in length. (Ex. CG-03).

6. On May 1, 2018, Respondent acted as the Master and operating the BLACK 

HAWK with a barge in tow. (Ex. CG-06; Ex. Resp.-B; Tr. at 40, 60).

7. On May 1, 2018, Brian Hatler, the Chief Engineer of the BLACK HAWK 

observed that Respondent was operating the vessel in an unsafe manner, was 

unresponsive to questions, and smelled of alcohol. (Tr. at 64-66).

8. The Chief Engineer called the Port Captain and told him that he suspected that 

the captain was seriously impaired by alcohol and drastic measures were 

required. (Tr. at 66).

9. The Port Captain directed the Chief Engineer and First Mate to relieve 

Respondent and move the BLACK HAWK to a safe anchorage with the 

assistance of other tugs. 

10. Later that evening on May 1, 2018, Sean Daggert, the Sause Bros., Bay Area Port 

Captain (Port Captain) boarded the BLACK HAWK and observed Respondent 

was disheveled, slurring his speech and smelled of alcohol. . (Tr. at 79-80).

11. The Port Captain confronted Respondent, who admitted he had been drinking 

alcohol. (Ex. Resp.-B; Tr. at 80, 86).
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12. The Port Captain directed Respondent to undergo a reasonable cause chemical 

test for alcohol and administered the test to him at approximately 2315 hours. (Tr. 

at 80, 84-85).

13. The test showed a blood alcohol concentration level (BAC) of 0.13. (Ex. CG-02; 

Tr. at 80, 84-85).

III. DISCUSSION

The purpose of Coast Guard suspension and revocation proceedings is to promote safety 

at sea. 46 U.S.C. § 7701(a). In furtherance of this goal, Administrative Law Judges (ALJs) have 

the authority to suspend or revoke Coast Guard-issued credentials or endorsements. See 46 

C.F.R. § 5.19(b). These proceedings are conducted under the Administrative Procedure Act 

(APA), 5 U.S.C. § 551 et seq. 46 U.S.C. § 7702(a).

A. Burden of Proof

Under the APA, the fact-finder must consider the “whole record or those parts thereof 

cited by a party and supported by and in accordance with the reliable, probative, and substantial 

evidence” before assessing a sanction. 5 U.S.C. § 556(d). The standard of proof in administrative 

proceedings is the “preponderance of the evidence” standard, meaning a party must prove that “a 

fact’s existence is more likely than not.” Steadman v. SEC, 450 U.S. 91, 98 (1981); Greenwich 

Collieries v. Dir., Office of Workers’ Comp. Programs, 990 F.2d 730, 736 (3d Cir. 1993); see 

also Dir., Office of Workers' Comp. Programs v. Greenwich Collieries, 512 U.S. 267 (1994).

Evidentiary rules under the APA are less strict than in jury trials, and only irrelevant, 

immaterial, or unduly repetitious evidence need be excluded. See 5 U.S.C. § 556(d); Gallagher v. 

Nat’l. Transp. Safety Bd., 953 F.2d 1214, 1214 (10th Cir. 1992); Sorenson v. Nat’l. Transp. 

Safety Bd., 684 F.2d 683, 688 (10th Cir. 1982). Moreover, evidence “need not be authenticated 

with the precision demanded by the Federal Rules of Evidence” in order to be admissible in an 

administrative proceeding. Gallagher at 1218; Appeal Decision 2664 (SHEA) (2007). 
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Section 7(c) of the APA places the burden of proof on the proponent of a rule or order, 

unless otherwise provided by statute. In a suspension or revocation hearing, the Coast Guard 

bears the burden of proof. 33 C.F.R. § 20.702(a).

B. Jurisdiction

Respondent admitted to all jurisdictional elements relating to the remaining allegations. 

However, the burden of establishing jurisdiction nevertheless remains. See 33 C.F.R. § 

20.310(c); Appeal Decision 2656 (JORDAN) (holding that even though the respondent admitted 

the charged offense, an appeal must be granted where jurisdiction is not established). Since this 

case involves a violation of marine safety law or regulation, in order to establish jurisdiction the 

Coast Guard must prove the alleged violation occurred while Respondent was “acting under the 

authority” of a Merchant Mariner Credential. See 46 U.S.C. § 7703. A vessel employee is 

considered to be acting under the authority of a credential or endorsement when they are required 

to hold it by either law or regulation, or by their employer as a condition of employment. 46 

C.F.R. §5.57(a).

The record does not contain any testimonial or documentary evidence establishing that 

Respondent was required to hold an MMC or endorsement as a condition of his employment. 

However, as a towing vessel over 26 feet in length, the BLACK HAWK must “be under the 

direction and control of a person holding a MMC endorsed as master or mate (pilot) of towing 

vessels. . .” 46 C.F.R. 15.535(b); see also 46 C.F.R. 15.805(a)(5) (setting out the requirements 

for Masters of towing vessels at least 8 meters in length). Thus, it is clear Respondent was 

required by regulation to hold an MMC with a Master’s endorsement while in control of the 

BLACK HAWK, and jurisdiction is established.
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C. Violation of Law or Regulation

The Coast Guard may seek to suspend or revoke a credential if the holder was acting 

under the authority of the MMC when he or she violated or failed to comply with 46 U.C.C. 

subtitle II, a regulation prescribed under that subtitle, or any other law or regulation intended to 

promote marine safety or protect navigable waters. 46 U.S.C. § 7703(1)(A) and 46 C.F.R. § 5.33. 

A mariner acts under the authority of an MMC when he or she is required to hold one by law or 

regulation; or by an employer as a condition for employment. 46 C.F.R. § 5.57(a). See Appeal 

Decision 2687 (HANSEN) (2010). Here, the Coast Guard charged Respondent with a violation 

of 33 C.F.R. §95.045(b), alleging he was acting under his authority while operating the towing 

vessel BLACK HAWK while under the influence of alcohol. 

D. Narrative of Events

Respondent admitted to operating the BLACK HAWK while intoxicated. (Ex. R-B). The 

testimony and documentary evidence in the record corroborates this admission. Specifically, the 

credible testimony is as follows.

On May 1, 2018, Brian Hatler served as the Chief Engineer aboard the BLACK HAWK. 

(Tr. at 60). The tug received an assignment to pick up a barge around 1430 hours, but could not 

come alongside it because it was still boomed in at the dock facility. (Tr. at 61). The BLACK 

HAWK was able to pick up the barge around 1830 hours but while leaving the dock, its stern 

brushed against another vessel’s bow. (Tr. at 62, 95). Mr. Hatler noted that the BLACK HAWK 

“made several out of character movements” as it towed the barge out of the channel, and came 

very close to a dock on two separate instances. (Tr. at 63-64). Mr. Wenski took the wheel and 

maneuvered until he felt too cold, then asked Respondent to take over while he changed into 

warmer clothes. (Tr. at 95).
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Mr. Wenski went to Mr. Hatler and mentioned that something was not right with 

Respondent, and he was either having a mental issue or was intoxicated. (Tr. at 64, 96). The 

vessel made several unusual turns and the engines came out of gear, and the captain of another 

Sause Brothers vessel radioed Respondent that the BLACK HAWK was close to going aground. 

(Tr. at 64). Mr. Hatler went to Mr. Wenski’s stateroom and told him they were risking a major 

disaster. Respondent came up behind Mr. Hatler, who smelled alcohol on Respondent’s breath 

and asked him if he was drunk. Respondent replied, “I’ve had a hard day.” (Tr. at 65). During 

this time, the wheelhouse was empty and nobody was in control of the vessel. (Tr. at 67).

Mr. Wenski, the first mate, returned to the controls and re-engaged the engines while Mr. 

Hatler called Jack Hill, the Senior Port Captain, and told him he suspected Respondent was 

seriously impaired by alcohol and insisted something needed to be done. (Tr. at 65-66). The Port 

Captain ordered Mr. Hatler to relay a message to Respondent and Mr. Wenski to get the vessel to 

a safe anchorage. (Tr. at 66). Although Mr. Wenski did not have experience maneuvering the 

vessel with a barge in tow and they were between a bridge and a dock with rocks ahead, he was 

able to bring the vessel to an anchorage. (Tr. at 98, 66). Mr. Hatler informed Respondent that Mr. 

Wenski was now in command of the vessel and Respondent was to go wait in his stateroom. (Tr. 

at 66). 

Sean Daggett, another Sause Brothers port captain, took an assist boat to the BLACK 

HAWK around midnight and went to Respondent’s stateroom to order him to take an alcohol 

test. (Tr. at 79, 82). He observed that Respondent had been sleeping, looked disheveled and had 

bloodshot eyes, moved slowly, and slurred his words. He could also smell alcohol in the air. (Tr. 

at 79-80). After Mr. Daggett administered the alcohol test, he asked if Respondent had been 

drinking and Respondent said yes, he had been, and it had been a hard day. (Tr. at 80). The 

alcohol test indicated a BAC of approximately 0.13 percent. (Ex. CG-02; Tr. at 80, 85).
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Mr. Daggett also tried to administer a drug test, but Respondent was unable to give a 

urine sample so he drank some water. (Tr. at 81). While they waited, Respondent told Mr. 

Daggett about some issues he was having and his remorse about the situation. After Respondent 

gave the urine sample, Mr. Daggett left so Respondent could call his wife. (Id.) Sause Brothers 

then arranged Respondent’s flight home and he departed the vessel around 1300 on May 2, 2018. 

(Tr. at 81).

E. Reasonable Cause Existed to Administer an Alcohol Test

Respondent does not dispute that Sause Brothers had reasonable cause to direct him to 

take a chemical test for alcohol. However, under Appeal Decision 2704 (FRANKS) (2014), the 

Coast Guard must prove that the test was properly ordered.

Coast Guard regulations prohibit merchant mariners from operating a vessel (other than a 

recreational vessel) or from acting as a crewmember when their blood alcohol concentration is 

0.04 percent or higher or if “the effect of the intoxicant(s) consumed by the individual on the 

person's manner, disposition, speech, muscular movement, general appearance or behavior is 

apparent by observation.” 33 C.F.R. §§ 95.020(b) and (c). The regulations allow marine 

employers to “direct an individual operating a vessel to undergo a chemical test when reasonable 

cause exists,” meaning when “[t]he individual is suspected of being in violation of the standards 

in §§95.020 or 95.025.” 33 C.F.R. § 95.035. 

A determination of reasonable cause should, if practicable, be based on observation by 

two persons. Id. The applicable standard is whether “[t]he individual is operating any vessel and 

the effect of the intoxicant(s) consumed by the individual on the person's manner, disposition, 

speech, muscular movement, general appearance or behavior is apparent by observation.” 33 

CFR § 95.020(c). 
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Here, Respondent was operating the BLACK HAWK on May 1, 2018 when Mr. Hatler, 

Mr. Wenski, and Mr. Daggett all noted signs of intoxication based on his manner, speech, 

appearance, movements, and other behaviors. There was clearly good cause for administering a 

chemical test for alcohol.

F. Respondent Operated a Vessel While Under the Influence of Alcohol

Respondent did not challenge the validity of the test results. Nevertheless, it is the “ALJ's 

responsibility to determine whether the evidence presented, including evidence involving the 

administration of the chemical test and the qualification of the technician, was sufficient to show 

that Respondent was ‘under the influence of alcohol.’” Appeal Decision 2659 (DUNCAN)

(2006); see also Appeal Decision 2692 (CHRISTIAN) (2011). Acceptable evidence of being 

under the influence of alcohol or a dangerous drug includes but is not limited to either (a) 

personal observation of the mariner’s manner, disposition, speech, muscular movement, general 

appearance, or behavior; or (b) a chemical test. 33 C.F.R. § 95.030. A “chemical test” is defined 

as “a test which analyzes an individual's breath, blood, urine, saliva and/or other bodily fluids or 

tissues for evidence of drug or alcohol use.” 33 C.F.R. § 95.010.

Kathryn Senz-Rose, the Director of Risk Management and Human Resources at Sause 

Brothers, testified that the company performs post-accident, reasonable suspicion, and random 

alcohol testing on its employees. (Tr. at 45; Ex. CG-04). Respondent was trained on the policy 

during his new hire orientation, and Sause Brothers has not made any significant changes to the 

policy since then. (Tr. at 46-48; Ex. CG-05 and CG-06). Ms. Senz-Rose described the type of 

alcohol test Sause Brothers uses, which is easy to administer and to maintain on the vessels. (Tr. 

at 50-52).

Mr. Daggett testified that there are instructions on the back of the package containing the 

alcohol test, and he read them before providing a mouth swab to Respondent. (Tr. at 83). He 
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instructed Respondent to keep the swab in his mouth for at least sixty seconds, per the 

instructions, and used a stopwatch to time the test. (Id. at 84.) After the time was up, he placed it 

directly into the circular end of a gauge and watched the color change as the test measured 

Respondents BAC. (Id.) He then took a picture to send to Ms. Senz-Rose and placed the test in a 

ziplock bag. (Tr. at 85; Ex. CG-02). Ms. Senz-Rose later sent a letter to the Coast Guard about 

Respondent’s positive alcohol test. (Tr. at 41-42; Ex. CG-02).

The testimony shows the test was properly administered, and nothing in the record gives 

me any reason to doubt the veracity of the alcohol test results. Respondent’s BAC was 

approximately 0.13 percent on May 1, 2018, significantly higher than the 0.04 percent level 

which the regulations establish as intoxication. See 33 C.F.R. § 95.020(b). This is sufficient to 

establish that he was acting under his authority by serving as Master of the BLACK HAWK 

while under the influence of alcohol. I therefore find the charge PROVED.

IV. SANCTION

Having found the allegation proved, I must now issue an appropriate order in this matter. 

33 C.F.R. § 20.902(a)(2). While this case was heard simultaneously with Docket 2019-0060, the 

two cases were not consolidated. Thus, I have considered the appropriate sanction based solely 

on the facts and circumstances of this case. Moreover, I may not consider the incident giving rise 

to Docket 2019-0060 as prior record under 46 C.F.R. 5.569(b)(2), as the Decision and Order in 

that case is not yet final agency action.

What constitutes an appropriate sanction depends on the type and circumstances of the 

offense. 46 C.F.R. § 5.569. For some offenses, primarily drug-related, revocation is the only

appropriate sanction. 46 C.F.R. 5.59. However, revocation may be sought for other types of 

offenses if the Investigating Officer believes “the circumstances of an act or offense found 

proved or consideration of the respondent’s prior record indicates that permitting such person to 
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serve under the credential or endorsements would be clearly a threat to the safety of life or 

property, or detrimental to good discipline.” 46 C.F.R. 5.61.

Although the Coast Guard decided to seek revocation of Respondent’s MMC, “[t]he 

selection of an appropriate order is the responsibility of the Administrative Law Judge, subject to 

appeal and review. The investigating officer and the respondent may suggest an order and 

present argument in support of this suggestion during the presentation of aggravating or 

mitigating evidence.” 46 C.F.R. § 5.569(a). The Commandant has also recognized that ALJs 

have “wide discretion to formulate an order adequate to deter the [mariner’s] repetition of the 

violations [the mariner] was found to have committed.” Appeal Decision 2475 (BOURDO)

(1988). Accordingly, I am not bound by the Coast Guard’s recommendations.

Except where a particular sanction is mandated, an ALJ may consider the following 

factors in determining an appropriate order: (1) remedial actions which have been undertaken 

independently by Respondent; (2) the prior record of Respondent, considering the period of time 

between prior acts and the act or offense for which presently charged is relevant; and (3) 

evidence of mitigation or aggravation. See 46 C.F.R. § 5.569(b). These rules include a Table 

entitled “Suggested Range of an Appropriate Order,” stating Table 5.569 “is for the information 

and guidance of Administrative Law Judges and is intended to promote uniformity in orders 

rendered. This table should not affect the fair and impartial adjudication of each case on its 

individual facts and merits.” 46 C.F.R. § 5.569(d). 

In Coast Guard suspension and revocation cases, “[t]he sanction imposed in a particular 

case is exclusively within the authority and the discretion of the ALJ,” who is not bound by the 

scale of average orders. Appeal Decision 2628 (VILAS) (citing Appeal Decisions 2362 

(ARNOLD) and 2173 (PIERCE)). “In the absence of a gross departure from the Table of 

Recommended Awards, the order of the ALJ will not be disturbed on review.” Appeal Decision 

2628 (VILAS) (citing Appeal Decision 1937 (BISHOP)). The only recommended sanction 
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ranges for alcohol-related violations of law involve refusal to take a chemical test for drugs or 

alcohol. 46 C.F.R. § 5.569 (Table). Here, Respondent did not refuse to test but rather violated 33 

C.F.R. § 95.045(b) by operating the towing vessel BLACK HAWK while intoxicated. Thus, the 

appropriate sanction for this type of offense appears to be entirely within my discretion.

Respondent’s offense was extremely serious. He endangered the vessel and crew when he 

operated the vessel under the influence of alcohol. The BLACK HAWK is a large vessel, 112.1 

feet in length and 194 gross tons (434 gross tons ITC). At the time Respondent operated the 

vessel, it also had a barge under tow. There is credible evidence the vessel was adrift for a time, 

and at risk of striking a bridge or pier, or grounding on rocks. There is also credible evidence that 

the vessel briefly allided with another vessel while under Respondent’s direction and control. 

Respondent also left the bridge unmanned when he went below deck, in contravention of the 

requirement that the vessel always be under the direction and control of an appropriately 

credentialed master or mate. 46 C.F.R. 15.535(b). These are all significant aggravating factors.

A further aggravating factor involves the status of Respondent’s medical certificate, a 

necessary part of the MMC. When a mariner has a medical condition that could possibly pose a 

risk of sudden impairment or incapacitation, but obtains evidence from their treating physician 

that the condition is stable and they are not a high safety risk to themselves or others, they may 

obtain a medical waiver from the Medical Evaluation Division (MED) at the National Maritime 

Center. (Tr. at 18; see also 46 C.F.R. 10.303). A waiver request is submitted along with the 

medical certificate application, Coast Guard Form 719-K. (Id.) If the MED grants a waiver, it 

issues a letter detailing the waiver conditions and instructing the mariner to let the MED know if 

their condition changes so the staff can review the waiver and determine whether it is still valid. 

(Id.) 

The MED issued Respondent a waiver for alcohol abuse on June 30, 2017, which was 

valid for five years. (Ex. CG-10; Tr. at 20). As there is a high risk of recidivism with alcohol 
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abuse, the MED required him to update any changes to his condition and stated the waiver would 

be invalidated with any future instance involving any type of substance abuse. (Tr. at 23). 

Respondent failed to inform the MED that he had any further issues with alcohol abuse. (Id. at 

24). The MED only became aware of the alcohol abuse incidents giving rise to both this 

proceeding and Docket 2019-0060 because of the investigations and complaints in these cases. 

(Id. at 25). 

The Division Director of the MED testified that, due to the incidents underlying both this 

case and Docket 2019-0060, Respondent’s medical waiver is no longer valid. (Tr. at 24). Since I 

have found the allegation here proved, Respondent no longer holds a medical waiver and 

consequently cannot operate under the authority of his MMC.

Respondent did not present any evidence that he has sought or received treatment for 

alcohol abuse since the May 1, 2018 incident. While he submitted letters from both his treating 

physician and a licensed clinical psychologist, both dating from April 2019, neither addressed 

Respondent’s issues with alcohol. Rather, Dr. Sean Sapunar stated he has never documented any 

alcohol issues during the four years he has treated Respondent and attributed Respondent’s 

symptoms in January 2019 to abrupt withdrawal from testosterone and the psychologist did not 

mention alcohol at all. The only Substance Abuse Professional evaluation in the record dates 

from June 2017, just prior to issuance of the medical waiver. (Ex. R-A, R-C, R-E). These letters 

are not sufficient to establish that Respondent may safely return to work as a mariner and is 

unlikely to suffer relapse. Moreover, Respondent is currently unable to operate a vessel under the 

authority of his MMC because he does not possess a valid medical waiver. 

The Commandant has upheld a sanction of revocation for operating a vessel while under 

the influence of alcohol. See Appeal Decision 2406 (ZOFCHAK) (1985) (“[The respondent’s] 

actions resulted from the abuse of alcohol. It is common knowledge that alcohol abuse often 

takes the form of a disease and results in repeated episodes of intoxication. This being the case, it 
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was entirely proper for the Administrative Law Judge to find that it would be unsafe to allow 

Appellant to operate under authority of a Coast Guard issued operator's license until such time as 

it could be established that his drinking would pose no future danger to himself or his potential 

passengers.”). Under the circumstances of this case, where Respondent has not undergone 

treatment for his alcohol abuse and acted in a manner that posed serious risks to marine safety, I 

find the sanction of REVOCATION appropriate.

George J. Jordan

US Coast Guard Administrative Law Judge

Date: