UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

RONALD E. MCDONALD 

Respondent 

Docket Number: CG S&R 03-0628 

CG Case No. 1932204 

Order Ruling on Motions and Dismissing Proceeding 

Issued: October 6, 2004 

Issued by: Jeffie J. Massey, Administrative Law Judge 

BACKGROUND FACTS 

On November 4, 2003, the Coast Guard initiated an administrative proceeding 

against Respondent's License Number 894673 by filing a Complaint alleging that 

Respondent tested positive for cocaine as a result of a pre-employment drug test 

· administered on September 2, 2003. The Coast Guard requested in said Complaint that 

Respondent's license be revoked. 

Respondent was served with a copy of the Complaint on November 7, 2003 

(Exhibit I0-01). Although Respondent signed the Answer to the Complaint on 

November 19, 2003 (Exhibit I0-02), it was not received at the ALJ Docketing Center 

until July 27, 2004. 
On August 4, 2004, the undersigned Administrative Law Judge was assigned to 

hear this case. On August 9, 2004, the undersigned issued a Scheduling Order, mailing a 

copy of same to Respondent at his address of record. Said hearing was scheduled for 

October 1, 2004 at 12:30 p.m. 

On October 1, 2004, at the duly appointed time for the hearing, the Respondent 

failed to appear. On the record, the Coast Guard indicated that they had not heard from 

the Respondent, had sought an address update from the postal service, and had received a 

response from the postal service indicating that the Respondent had moved from his last 

known address and left no forwarding address (Exhibit 10-03). 

Prior to the hearing (on September 13, 2004), the Coast Guard filed a Motion to 

Amend Complaint, seeking to modify the original Complaint by adding a second 

allegation. Specifically, the Coast Guard added a Misconduct allegation based on the 

submission of false statements to the Coast Guard on October 31, 1995 and August 12, 

2000. The Amended Complaint also requested an order ofrevocation for Respondent's 

license. On the record, the Coast Guard submitted a written Motion for Default Order. 

RULING ON MOTIONS 

At the time and place appointed for the hearing in this proceeding, the 

undersigned went on the record to allow the Coast Guard to move for a default, if it 

wished to do so, and to rule on the pending Motion to Amend Complaint. The 

undersigned received and admitted into the record exhibits relevant to the Motion for 

Default. A "hearing'~ was not held, however, as no witnesses were sworn, no testimony 

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was taken, and the exhibits admitted into the record did not speak to the allegations plead 

as a basis for the relief requested by Coast Guard. 

On the record, the undersigned ruled on the two pending motions presented by 

Coast Guard. First, with respect to the Motion to Amend Complaint, it was announced on 

the record that this Motion was Denied. The denial was necessitated by the following 

facts: First, the added charge of Misconduct is barred as a matter oflaw, by the 

provisions of 46 CFR §5.55(a)(3), which bars allegations of misconduct (not otherwise 

provided for in other regulations) within three years after the commission of the act or 

offense alleged. The nature of the allegations contained in the proposed misconduct 

allegation place it within this "other" category. Thus, as a matter oflaw, the misconduct 

allegation cannot be brought against the Respondent. Second, the wording of the first 

allegation omitted a fundamental element for a legally sufficient charge (did not allege 

that the offensive conduct occurred while the Respondent was acting under the authority 

of his license), so the Complaint was deficient as a matter oflaw. In fact, the original 

Complaint, filed on November 6, 2003, was similarly deficient. 

Because the original Complaint was legally insufficient, the Motion for Default 

Order was denied. A Default Order cannot be based on a legally insufficient Complaint. 

Unlike the Misconduct allegation, however, the Coast Guard could, if properly plead, 

bring the first allegation in a new complaint, assuming they properly plead the allegation 

with all necessary elements. 

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DISMISSAL OF ORIGINAL COMPLAINT WITHOUT PREJUDICE 

As noted above, the Coast Guard's wording of the allegation in the original 

Complaint was fatally deficient. Accordingly, the original Complaint is dismissed 

without prejudice to its re-filing. 

ORDER 

IT IS HEREBY ORDERED that Docket No. 03-0628 be DISMISSED without 

prejudice to the re-filing of the allegation concerning a positive pre-employment drug test on 

September 2, 2003. 

In compliance with 33 CPR §20.902(a)(5), the undersigned hereby states that any 

interested person may petition the Commandant to set aside this decision. 

Done and dated October 6, 2004 

New Orleans, Louisiana 

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