UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

. . - . - . - - . . - . . . . . . - . . .. . .. . . . . .. . . . - . . . 

I 'XI 1'11) SI'A I'I.:S C'OAS I' <;I'.ZRI) 

Complainant 

vs. 

MARK EDWIN EGERTON 

Respondent. 

Docket Number: CG S&R 06-0268 

CG Case No. 2664660 

ORDER GRANTING WRITTEN MOTION FOR SUMMARY DECISION 

Issued: April 9.2007 

Issued hv: Thomas E. P. McEIIigott, Administrative Law Judge 

Appearances: 

PO Chris J. Champeau 

U.S. Coast Guard 

Sector Houston-Galveston 

9640 Clinton Drive 

PO Box 446 

Houston, TX 77029 

For the Coast Guard 

Mark Edwin Egerton, pro se 

For the Respondent 
PRELIMINARY STATEMENT 

In discharge of its duty to promote the safety of life and property at sea, the United States 

Coast Guard ("Coast Guard" or "Agency") initiated this administrative action seeking revocation 

of the Merchant Mariner's Credential ("MMC") issued to Mark Edwin Egerton, the respondent 

in this case. This action was brought pursuant to the legal authority contained in 46 United 

States Code ("U.S.C.") 7703, and was conducted in accordance with the procedural requirements 

of5 U.S.C. 551-559,33 Code of Federal Regulations ("CFR") Part 20, and 46 CFR Part 5. 

This case began on June 6,2006 when the Coast Guard issued and served a complaint 

against Respondent seeking revocation of his MMC. The jurisdictional allegations of that 

complaint state that Respondent is the holder of an MMC. The factual allegations of that 

complaint state: 

1. On April 13,2006 the Respondent took a post-accident drug test. 

2. A urine specimen was collected by C. Barbosa of Concentra Medical Centers, Corpus 

Christi, TX. 

3. The respondent signed a Federal Drug Testing Custody and Control Form. 

4. The urine specimen was received and analyzed by Advanced Toxicology Network, 

Memphis, TN using procedures approved by the Department of Transportation. 

5. The specimen subsequently tested positive for the marijuana (THC) metabolite. 

The complaint was filed with the ALJ Docketing Center in Baltimore, MD on June 7, 2006. 

On July 5,2006, the Coast Guard filed two motions. The first was a Motion for 

Certification of Non-Answer to the complaint. The second was a Motion for Default Order 

based on Respondents failure to file an answer to the complaint. That same day, on July 5,2006, 

the ALJ Docketing Center certified that an answer to the complaint had not been received from 

Respondent. 

The ALJ Docketing Center did not receive Respondent's answer to the complaint until 

July 18,2006. The Respondent's answer was dated June 28.2006. This case was subsequently 

assigned to Judge Thomas E. P. McElligott for adjudication. Based on Respondent's filing of the 

written answer to the complaint, the Investigating Officer's Motion for Default is hereby 

DENIED, 

An ebidentiary trial-type hearing was scheduled in Houston, Texas on March 22,2007. 

That hearing was subsequently postponed based on the Coast Guard's pending witten motion 

for summary decision. On March 8,2007. the Coast Guard filed a Motion for Summary 

Decision arguing that there is no genuine issue of material fact because Respondent admitted "all 

jurisdictional and all factual allegations." and that the Coast Guard is entitled to a decision as a 

matter of law. Respondent bas not filed a signed. witten repl) to the Coast Guard's Motion for 

Surnmq Dec~sion. After careful review of the facts and circmsLances of this case, including 

the applicable Iaw, the Coast Guard's Motion for Subtry Decision is GMNTED. 
FINDINGS OF FACT 

1. In a witten Answer dated June 28,2006, Respondent Mark Edwin Egerton admitted all 

the jurisdictional allegations of the complaint that states he holds a United States Coast 

Guard issued Merchant Mariner Credential. 

2. In that same Answer, Respondent admitted all the factual allegations of the complaint 

that states that he took a post-accident drug test on April 13, 2006 in which he 

subsequently tested positive for marijuana. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Respondent Mark Edwin Egerton and the subject matter of this proceeding fall within 

the jurisdiction vested in the U.S. Coast Guard under 46 U.S.C. 7704(c). 

2. The Coast Guard's use of dangerous drugs allegation is proved based on Respondent's 

admission of all allegations and that Respondent tested positive for marijuana (THC) 

metabolite. See Appeal Decision 2559 CNEILSEN) (1995). 

3. Under 46 U.S.C. 7704(c) and 46 CFR 5.59(b), the only appropriate sanction is 

revocation of Respondent's U.S. Coast Guard issued Merchant Mariner's Credentials. 

DISCUSSION 

Summary decision is a well accepted and commonly used procedural device in 

administrative agencies, whereby the government disposes of a controversy on the pleadings 

without an evidentiary hearing. Reese, ADMINISTRATIVE LAW DESK REFERENCE FOR 

LAWYERS 168. The standard of review of a summary decision motion is set forth in 33 CFR 

20.901, which provides in pertinent part: 

(a) Any party may move for a summary decision in all or any part of the proceeding on 

the grounds that there is no genuine issue of material fact and that the party is entitled to a 

decision as a matter of law. The party must file the motion no later th& 15 days before 

the date fixed for the hearing and may include supporting aflidavits with the motion. 

Any other party, 10 days or less after service of a motion for summary decision, may 

serve opposing affidavits or countermove for summary decision. . . . 

(b) The ALJ may grant the motion if the filed affidavits, the filed documents, the 

material obtained by discovery or otherwise, or matters officially noted show that there is 

110 genuine issue of materia! fact and that a party is entitled to a summary decision as a 

matter of law. 

The motion may be made as to some or all of the claims in order to find that "as a matter of law'' 

the moving party should prevail. Charles H. Koch, Jr.. ADMTPdISTRATIVE LAW AND 

PRACTICE 5 8.22151, at 483 (2d ed. 1997). 
In an administrative context, the standard of review of a summary decision motion is 

inextricably linked to Rule 56(c) of the Federal Rutes of Civil Procedure ("Fed. R. Civ. P.") 

(governing review of a summary judgment motion). See Puerto Rico Aqueduct, 35 F.3d at 607. 

A judge 'tvill generally grant summay [decision] if the pleadings and papers filed by the parties 

establish, without substantial dispute, facts that entitle the movant to judgment as a matter of 

law." See Ernest Gelhorn & William F. Robinson, Jr., Summani Judgment in Administrative 

Adiudication, 84 Harv. L. Rev. 612,613 (Jan. 1971). All competing inferences or reasonable 

doubts as to whether a genuine issue of material fact exists are biewed in a light most favorable 

to the non-moving party (i.e., the Respondent) in this case. Anderson v. Lihertv Lobby. Inc., 

477 U.S. 242,255 (1986). The moving party (i.e., the Coast Guard) bears the initial burden of 

identifying those portions of the pleadings. the material obtained by discovery or otherwise, or 

other material contained in the record that show an absence of a genuine issue of material fact. 

- See generally 33 CFR 20.901(b); see also Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 251-55; 

-. v. Catrett, 477 U.S. 317,322-24 (1985). ' 

In the instant case, the Coast Guard argues that Respondent's admissions in Respondent's 

written and signed Answer to the Complaint of all the jurisdictional and all factual allegations 

eliminate all genuine issues of material fact. I agree. In these proceedings, a respondent's 

admissions are sufficient to support a fmding that an allegation is proved. See Apveal Decision 

2559 (NEILSEN) (1995). Respondent's admissions also obviates the need for the Coast Guard 

to otherwise prove or establish a prima facie case, and constitutes a waiver of all nonjurisdictional defects and defenses. generally Avpeal Decision 2376 IFRANK] (1985) 

(holding that a guilty plea obviates the requirement for otherwise establishing a prima facie 

case); Avveal Decision 2385 (GAIN) (1985). Accordingly, the Coast Guard's Motion for 

Summary Decision is GRANTED in this case. 

SANCTION 

One of the major purposes of suspension and revocation proceedings and trial-type 

hearings is to protect lives and properties against actual and potential dangers. 46 U.S.C. 

7701(a). Congress enacted 46 U.S.C. 7704(c) and related statutes with the express intent of 

removing those individuals using a dangerous drug from service on board United States 

merchant marine vessels. House Rep. 338,98" Cong., 1" Sess. 177 (1983); see also A& 

Decision 2634 fBARRETTAj (2002). Under 46 U.S.C. 7704(c), revocation of a merchant 

mariner's license and/or credentials is required when it is shown on a motion or proceeding such 

1 See Fed. K Civ. P. 56(c), which states in peitinent part: 

. . . [Summary] [Jjudgment shall be rendered forthwith if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no eenuine 

issue of material fact and that the moving party is entitled to iudgment as a matter of law. . . . 

(Emphasis added). 
as this before a U.S. Administrative Law Judge that the merchant mariner is a user of, or 

addicted to, a dangerous drug unless the mariner provides satisfactory evidence of cure of all 

dangerous drug use. See also 46 CFR 5.59(b).* 

In Appeal Decision 2535 (SWEENEY) (1992), the Commandant held that a merchant 

mariner could establish proof of cure by showing that he had successfully completed a drug 

abuse rehabilitation Droeram 

. " and that he had not had anv associations with drugs - for at least one 

year after completing the drug rehabilitation program as evidenced by successful participation in 

an active drug abuse monitoring or testing program which incorporates random, unannounced 

drug testing during that year. 1; later cases, the Commandant has also held where a Respondent 

demonstrates "substantial involvement in the cure process by proof of enrollment in an accepted 

[drug] rehabilitation program," a judge may stay the revocation and continue the hearing. 

Au~eal 

w. 

Decision 2634 (BARRETTA) (2002); see also Commandant Review Decision 18 

Where as in this case, the respondent has not provided any etidence of cure or 

substantial involvement in the cure process, revocation is mandated or dictated by the applicable 

laws. 46 CFR 5.59(a). 

While revocation is a severe order, it is not necessarily permanent. Respondent's 

attention is directed to 33 CFR 20.904(f), which allows a respondent, within three (3) years or 

less after his Coast Guard issued license or document is revoked, to file a written motion to 

reopen this matter and seek modification of the order of revocation upon a showing that the order 

of revocation is no longer valid and the issuance of a new license, certificate, or document is 

compatible with the requirement of good discipline and safety of lives and property at sea. In 

cases such as this one, the revocation order may be modified upon a showing by Respondent that 

the Respondent: 

(1) Has successfully completed a bona fide, acceptable drug abuse rehabilitation 

program; 

(2) Has demonstrated complete non-association with dangerous drugs for a minimum of 

one year following completion of a drug rehabilitation program and; 

(3) Is actively participating in a bona fide drug abuse monitoring or testing program. 

See generally 46 CFR 5.901. The drug abuse monitoring program must include random, 

unannounced testing during that year. A~peal Decision 2535 (SWEENEY).~ 

Wherefore, 

2 A "dangerous drug" is "a narcotic drug, a controlled substance, or a controlled-substance analog (as defined in 

section 102 of the Comprehensive Drug Abuse and Control Act of 1970 (21 tJ.S.C. 802))." 46 CFR 16.105. By 

definition, marijuana (also known as '"ttrahydrocannabinol" or "THC") is recognized as a "dangerous drug". See 

Id.; 21 U.S.C. 802(6), (16); 21 U.S.C. 812(c)(17) {listing marijuana as a Schedule 1 controlled substance). 

3 After three years, Respondent is required to apply directly with the Commandant of the U.S. Coast Guard in 

Washington, D.C. for issuance of a new license. &g 46 CFR 5.9431 to 5.905, and it must be written, signed and 

delivered in person to the nearest Officer in Charge, Marine inspection, U.S. Coast Guard. 
ORDER 

IT IS HEREBY ORDERED that the Coast Guard's Motion for Summary Decision is 

GRANTED. 

IT IS HEREBY FURTHER ORDERED that all the U.S. Merchant Mariner's 

Credentials issued to Respondent Mark Edwin Egerton are REVOKED. Respondent shall 

immediately deliver by mail or in person his merchant mariner's credentials and all other Coast 

Guard issued licenses, certificates or documents to the Coast Guard at Sector HoustonGalveston, attention of the Senior Investigating Officer, LCDR Joseph Cost, at 9640 Clinton 

Drive, Houston. Texas 77029, telephone number 713-671-5 193. 

PLEASE TAKE NOTICE that the service of this Order serves as notice to the 

Respondent of his right to appeal, the procedures for which are set forth in 33 CFR 20.1 001 

through 20.1003. See Attachment A. 

Done and dated April 9,2007 

Houston. Texas 

THOMAS E. P. MCELLIGOTT 

ADMINISTRATIVE LAW JUDGE 
Attachment A 

NOTICE OF APPEAL RIGHTS 

33 CFR 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: 

(I) 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 CFR 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, -- 

(I) 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 GFR 7.45. 

33 CFR 20.1003 Procedures for appeal. 

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

Commandant at the following address: U.S. Coast Guard Adnliniseative 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 ecery 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 th e 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 w~iting; 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 CFR 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.