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UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

MICHAEL J. MORRISSEY 

Respondent. 

______________________________ Docket Number: CG S&R 04-0603 

CG Case No. 2228397

 

ORDER DENYING PETITION TO REVISE TERMS OF SETTLEMENT AGREEMENT

Issued: March 27, 2006 

Issued by: Walter J. Brudzinski, Administrative Law Judge

Background

 On September 4, 2004, Respondent took a post accident chemical test as required by 46 

CFR 16.240 and 46 CFR Subpart 4.06. Respondent’s specimen tested positive for marijuana and 

on November 2, 2004, the Coast Guard issued a Complaint against Respondent seeking to revoke 

his merchant mariner’s license. 

On February 24, 2004, the parties entered into a standard cure settlement agreement. The 

relevant terms provided, among other things, that within 30 days of entering into the agreement, 

Respondent is to enroll in a drug rehabilitation program and within 90 days thereof successfully 

complete the program. Further, Respondent is to attend a substance abuse monitoring program 

for a minimum of one year following successful completion of the drug rehabilitation program. 

During the one year substance abuse monitoring program, Respondent must participate in at least 

6 random, unannounced drug tests. The monitoring program must be completed no later than 

August 4, 2006 but Respondent will be subject to unannounced testing for a period up to 60 

months in accordance with 46 CFR 16.201(f)(2) and that the Medical Review Officer (MRO) 

will determine the period and frequency of testing. 

The settlement agreement goes on to say that Respondent is also to obtain and file a copy 

of a letter from the MRO indicating he is drug free and that the risk of subsequent use of 

dangerous drugs is sufficiently low to justify his return to work. The MRO who made the 

original positive determination in Respondent’s case must sign the return to work determination. 
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The agreement lists the name and address of the MRO and also provides that a substitute MRO 

may be agreed upon by the parties. Finally, the Respondent must deposit all of his Coast Guard 

issued credentials with USCG Sector Boston until successfully completing the terms of the 

agreement and is not to perform any function that requires a Coast Guard issued credential 

during the period of deposit. 

After entering into the agreement, the parties submitted their joint motion for consent 

order to the USCG ALJ Docketing Center where the case was assigned to the undersigned. After 

reviewing the settlement agreement to ensure it complied with applicable laws, rulings, and 

regulations, the undersigned issued a consent order on February 28, 2005. 

Petition to revise the terms of the settlement agreement

On March 14, 2006, Respondent petitioned the undersigned to revise the settlement 

agreement terms so that he may return to work earlier than a “strict construction of the settlement 

agreement would normally appear to permit.” In support of his request, Respondent states that 

since he completed the drug rehabilitation program on May 19, 2005, he would be eligible to 

apply for the return of his credentials on May 19, 2006. Further, he has “complied with all of the 

requirements of the settlement agreement save for the full year following completion of the 

rehabilitation program, but that is just 2 months away.” 

Respondent’s additional arguments

1) That Respondent initially tested positive on September 4, 2004, “but there is 

documentation, i.e., numerous Drug Free Certificates, to establish that he has 

been completely drug free for the period from September 23, 2004 until now, 

which is roughly 20 months;” 

2) That the incident causing the accident which triggered the drug test could have 

been catastrophic but for the conscientious efforts of the licensed engineers, 

foremost among them being Respondent; 

3) That after entering into the settlement agreement Respondent promptly entered 

and successfully completed a drug rehabilitation program for which his 

counselor opined that the risk of subsequent drug use by him is negligible; 

4) That Respondent nevertheless continued to attend AA/NA meetings on a 

regular basis and has also obtained a number of drug free certificates during the 

year following rehabilitation, said certificates having been presented to the 

MRO in accordance with the terms of the settlement agreement; 

5) That Respondent has complied with and satisfactorily completed all material 

terms of the settlement agreement and has demonstrated substantial 

involvement in the cure process; 

6) That under SWEENY, (sic) a mariner can establish proof of cure by showing 

successful completion of a drug abuse rehabilitation program and nonassociation with drugs for at least one year; 
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7) That the Coast Guard has argued and maintained in several cases subsequent to 

SWEENY (sic) that the guidelines established by SWEENY (sic) are not 

inflexible but rather are guidelines subject to evaluation in the context of 

determining the adequacy of proof in a given case; and 

8) That in this case Respondent can establish both elements [drug rehabilitation 

and non-association with drugs for at least one year] and therefore, by any 

reasonable interpretation of SWEENY, (sic) Respondent is cured. 

Respondent goes on to list “compelling personal circumstances” that should be 

considered: 

1) That Respondent has attended a number of courses at his union school in 

Baltimore that will eventually permit him to seek an upgrade in his license; 

2) That Respondent has had a number of personal hardships including his wife’s 

job loss resulting in no steady income; and 

3) That Respondent’s mother had recently passed away. 

Respondent states that at the end of March 2006, his former employer will have an 

opening for him to replace an incumbent First Assistant Engineer who will be relieved for 

vacation. If Respondent is unable to report for work, the position will be given to another 

engineer and Respondent will have to wait several months for another suitable position. Also, 

Respondent understands that he will continue to be monitored by the designated Medical Review 

Officer for the full 5 year period. 

In addition to a copy of the settlement agreement and the consent order, the petition also 

contains a copy of an undated letter signed by Paul F. McDevitt stating that Respondent has 

completed drug rehabilitation. Mr. McDevitt’s states that he met Respondent initially on 

February 16, 2005 for evaluation and that Respondent has since successfully completed the 

recommended program by attending individual sessions on February 16th, March 16th, 24th, and 

31st, April 5th, 14th, 21st, and 28th, and May 5th and 12th of 2005. Mr. McDevitt states that 

Respondent is currently attending AA meetings on a regular basis and has demonstrated a firm 

commitment to no longer use and/or be associated with illegal drugs. He opines that Respondent 

is drug free and that the risk of subsequent use of drugs by him is sufficiently low so as to be 

characterized as negligible. 

Finally, Respondent states that the Coast Guard Investigating Officer advised him that he 

was not authorized to revise the terms of the settlement; however, he does not object to the 

requested revisions. 

In essence, Respondent is requesting that the Administrative Law Judge revise the terms 

of the settlement agreement to allow him to return to work under the authority of his license prior 

to completion of cure. 
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Issue

The issue is whether the Administrative Law Judge may revise the terms of a settlement 

agreement to allow a mariner to work under the authority of the mariner’s credentials prior to the 

mariner’s completion of cure. 

Law

The purpose of suspension and revocation proceedings is to promote safety at sea. 46 

U.S.C. § 7701(a). Under Title 46 U.S.C. § 7704 (c), 

[i]f it is shown that a holder has been a user of, or addicted to, a 

dangerous drug, the license, certificate or registry, or merchant 

mariner’s document shall be revoked unless the holder provides 

satisfactory proof that the holder is cured. 

Title 46 CFR 5.901(d) provides that the fundamental elements of cure are as follows: 

For a person whose license, certificate, or document has been 

revoked or surrendered for the wrongful simple possession or use 

of dangerous drugs, the three year time period (after revocation or 

surrender) may be waived by the Commandant upon a showing 

that the individual: 

1. Has successfully completed a bona fide drug 

abuse rehabilitation program; 

2. Has demonstrated complete non-association 

with dangerous drugs for a minimum of one 

year following completion of the rehabilitation 

program; and 

3. Is actively participating in a bona fide drug 

abuse monitoring program. 

Under Appeal Decision 2535 and 2546 (SWEENEY) (1992) the Commandant further 

defined and reiterated the elements of cure with the following language: 

Because the issue of cure is central to this case, a discussion of 

what should be considered as constituting cure is in order. 

A sound, reasonable basis upon which to craft a viable definition 

of cure exists in 46 C.F.R. §5.901(d). Using that regulation as a 

foundation, I consider the following factors to satisfy the definition 

of cure in cases where drug use is an issue: 
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1. The respondent must have successfully completed a bonafide 

drug abuse rehabilitation program designed to eliminate physical 

and psychological dependence. This is interpreted to mean a 

program certified by a governmental agency, such as a state 

drug/alcohol abuse administration, or in the alternative, certified by 

an accepted independent professional association, such as the Joint 

Commission on Accreditation of Health Care Organizations 

(JCAHO). 

2. The respondent must have successfully demonstrated a complete 

non-association with drugs for a minimum period of one year 

following successful completion of the rehabilitation program. 

This includes participation in an active drug abuse monitoring 

program which incorporates random, unannounced testing during 

that year. 

 

 * * * 

The aforementioned guidelines and procedures should also be 

utilized regarding an issue of cure that arises pursuant to a charge 

of use or possession of drugs in 46 C.F.R. §5.59. 

Under 46 CFR 16.201, the requirements for cure are further prescribed: 

(e) An individual who as failed a required chemical test for 

dangerous drugs may not be re-employed aboard a vessel until the 

requirements of paragraph (f) of this section and 46 CFR Part 5, 

(noted above) if applicable, have been satisfied. 

(f) Before an individual who has failed a required chemical test for 

dangerous drugs may return to work aboard a vessel, the MRO 

must determine that the individual is drug-free and the risk of 

subsequent use of dangerous drugs by that person is sufficiently 

low to justify his or her return to work. In addition, the individual 

must agree to be subject to increased unannounced testing --- 

(1) For a minimum of six (6) tests in the first year after the 

individual returns to work as required in 49 CFR part 40; and 

(2) For any additional period as determined by the MRO up to a 

total of 60 months. 

Appeal Decision 2634 (BARRETTA) (2002) and Appeal Decision 2638 

(PASQUARELLA) (2003) answer the question whether an Administrative Law Judge may 

permit a mariner to work under the authority of the mariner’s credentials prior to the mariner’s 

completion of cure. Under BARRETTA, 
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 The ALJ is not authorized to permit a mariner to sail under the 

authority of the mariner’s credential until all the requirements of 

cure have been met. The ALJ can only find that cure has been 

established after the mariner has successfully completed a bona 

fide drug rehabilitation program, demonstrated a complete nonassociation with drugs for one year following completion of the 

drug rehabilitation program, and the MRO has made a 

determination in accordance with 46 CFR 16.201(f) that the 

mariner is drug-free and his risk of use of illegal drug use again is 

sufficiently low. During the period of cure, the ALJ may stay the 

order of revocation and continue the hearing to allow cure, but the 

ALJ cannot allow the mariner to work under the authority of the 

mariner's credential. 

 And, as stated in (PASQUARELLA), “[u]nder BARRETTA . . . the ALJ cannot allow 

the mariner to work under the authority of the mariner’s credentials prior to completion of cure. 

This is accomplished by the Coast Guard retaining possession of the document.” 

Discussion

The most important aspect of the cure is that Respondent not only successfully complete 

the drug rehabilitation program and remain drug free for one year thereafter, but also that the 

MRO certify Respondent is drug free and that the risk of his subsequent dangerous drug use is 

sufficiently low to justify return to work. These provisions are required by law and may not be 

waived by revising a settlement agreement. 

While Mr. McDevitt’s opinion that Respondent is drug free is noteworthy, Mr. McDevitt 

is not the MRO and may not be considered a substitute MRO. Under the law as noted above, a 

mariner may not be deemed to have successfully completed cure until all of the requirements for 

cure have been met. That includes the return to work letter from the MRO. 

Decision

Without addressing the extent to which, if any, an Administrative Law Judge may revise 

some parts of a cure settlement agreement, the law is clear that any revision must not result in the 

mariner returning to work under the authority of his license prior to all of the requirements for 

cure having been met. Therefore, the Administrative Law Judge may not allow a mariner to work 

under the authority of the mariner’s credentials prior to completion of cure. 

 Wherefore, 
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ORDER

IT IS HEREBY ORDERED that Respondent’s petition to revise the terms of the 

settlement agreement to allow him to return to work under the authority of his license prior to 

completing cure is DENIED. 

Done and dated March 27, 2006 

New York, NY 

____________________________________ 

WALTER J. BRUDZINSKI 

ADMINISTRATIVE LAW JUDGE

U.S. COAST GUARD 
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Certificate of Service 

This is to certify that I have sent the foregoing Order to the following parties and entities 

by the means indicated below: 

LT Edward Munoz 

CWO John Hulslander 

USCG Sector Boston 

455 Commercial Street 

Boston, MA 02109 

Via Facsimile (617) 223-3032 

Owen F. Duffy, Esq. 

Fowler, Rodriguez and Chalos 

366 Main Street 

Port Washington, NY 11050 

Via Facsimile (516) 767-3605 

ALJ Docketing Center 

40 S. Gay Street, Room 412 

Baltimore, MD 21202 

Via Facsimile (410) 962-1746 

Done and dated March 27, 2006 

New York, NY 

 ______________________________ 

 Regina V. Thompson 

 Paralegal Specialist 

 Assistant to the Administrative Law Judge 

 Phone: (212) 668-2970 

 Facsimile: (212) 825-1230