U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

KEITH BRYANT KOCH 

Respondent 

_______________________ 

Docket Number CG S&R 07-0596 

CG Case No. 3099785 

ORDER GRANTING COAST GUARD MOTION FOR DEFAULT 

Issued: July 28, 2008

Issued by: Michael J. Devine, Administrative Law Judge

Investigating Officer:

CWO James R. Mints, IO 

USCG Sector San Diego, CA 

Respondent: 

Keith Bryant Koch 
 On December 19, 2007, the Investigating Officer at Sector San Diego filed a Motion for 

Default Order, seeking revocation of the Respondent’s Merchant Mariner’s Document, which 

Motion. Respondent was charged with Misconduct in refusing to take a probable cause alcohol 

test 46 USC 7703, 46 CFR 5.27. The Respondent did not file an Answer to the Complaint, with 

either the Investigating Officer or the Coast Guard Administrative Law Judge Docketing Center. 

However, the Coast Guard failed to provide proof of service of the Motion for Default as required 

by 33 CFR 20.304 and the original Motion for Default was denied on March 18, 2008. 

On March 28 , 2008 the Investigating Officer at Sector San Diego, filed a Motion to 

Amend the Complaint in this matter again seeking revocation of the Respondent’s Merchant 

Mariner’s Document, which Motion is incorporated herein by reference and made a part hereof. 

On April 4, 2008 this matter was reassigned to the undersigned Administrative Law Judge. On 

April 25, 2008 the Motion to Amend the Complaint was granted. According to the case file, a 

copy of the Amended Complaint, dated March 28, 2008 was duly served at the Respondent’s 

residence via Federal Express Service on March 31, 2008. Respondent was again charged with 

Misconduct in refusing to take a probable cause alcohol test 46 USC 7703, 46 CFR 5.27. To date 

the Respondent has not filed an Answer to the Amended Complaint, with either the Investigating 

Officer or the Coast Guard Administrative Law Judge Docketing Center. On May 22, 2008 the 

Coast Guard initiated a new Motion for Default based on Respondent’s failure to file an Answer. 

The Motion for Default was served and received at Respondent’s home address on July 7, 2008. 

The Coast Guard submitted proof of service by Federal Express with the Motion for Default 

demonstrating compliance with 33 CFR Part 20.304. 

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 To date the Respondent has not filed an Answer to the Amended Complaint, with either 

the Investigating Officer or the Coast Guard Administrative Law Judge Docketing Center. The 

Respondent has not provided any change of address therefore service of the Motion for Default 

is adequate in keeping with 33 CFR 20.304 and twenty days has passed since the Motion was 

served. 

 WHEREFORE, 

Upon consideration of the record, I find the Respondent is in DEFAULT. A default 

constitutes an admission of all facts alleged in the Complaint and a waiver of the Respondent’s 

right to a hearing. (33 CFR 20.310). 

 Accordingly, I hereby ORDER that the alleged violation of Misconduct for refusing to 

take an alcohol test is PROVED. 

 SANCTION

I have carefully reviewed the Complaint and the Motion for Default and note that the 

proposed sanction exceeds the suggested range of sanctions contained in Table 5.569 of 46 CFR 

5.569. Respondent failed to respond to the Complaint so underlying facts are proven and there is 

no evidence of any remedial actions or mitigation by Respondent. 

Title 49 CFR 40.261(b) provides that if an employee refuses to take an alcohol test the 

employee incurs the consequences specified under DOT regulations. The Table of Average 

Orders in the Coast Guard’s regulations suggests outright suspension for twelve to twenty-four 

months for Misconduct based on the refusal to take a required alcohol test. 46 CFR 5.569(d). 

The Table of Average Orders is only intended to provide information and guidance, and the 

Administrative Law Judge is not bound by the range of appropriate orders in 46 CFR 5.569(d). 

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Appeal Decision 2578 (CALLAHAN) (1996); Appeal Decision 2475 (BOURDO) (1988). 

Evidence of mitigating or aggravating circumstances may justify departing from the suggested 

range. 46 CFR 5.569(d). 

 The Coast Guard recommends a sanction of revocation. Some of the existing authority 

on available sanctions includes: Appeal Decision 2578 (CALLAHAN) (1996) (“Refusal to 

submit to a post incident chemical test raises a serious doubt about a mariner’s ability to perform 

safely and competently in the future...if mariners could refuse to submit to chemical testing and 

face a lesser Order, it is difficult to imagine why anyone that may have used drugs would ever 

consent to be tested.”) and Appeal Decision 2624 (DOWNS) (2001) (citing CALLAHAN). (Tr. 

at 153-154) revocation may be considered an appropriate sanction for refusal to submit to a 

reasonable cause test. However, recent authority also indicates that evidence in aggravation 

should be presented to support going beyond the suggested range of sanctions in the table. 

Commandant v. Moore, NTSB Order No. EM-201 (2005)(upward departure to revocation not 

upheld without an explanation of aggravating factors). 

Upon consideration of the above, I find that a mariner’s refusal to take a test for alcohol 

when ordered to do so by his marine employer, as part of the required Coast Guard drug and 

alcohol testing program, is a serious offense that could result in the revocation of that 

individual’s Coast Guard issued license and/or document regardless of the type of test involved 

(post accident, pre-employment, random, probable cause, or periodic). However, in this case, the 

Coast Guard has not provided any evidence of aggravating factors that support exceeding the 

suggested range contained in the table. Likewise, nothing has been provided by the Respondent 

in remediation or mitigation. Such refusals to submit to testing raise the specter of the mariner 

having an alcohol abuse or illicit drug use problem and place in doubt the ability of a mariner to 

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safely carry out his/her duties and responsibilities on the vessel. These considerations are 

applicable in this case when the mariner refused to take the alcohol test. Therefore, 24 months 

outright suspension is the appropriate sanction. 

WHEREFORE, 

IT IS ORDERED that your Mariner’s document is hereby SUSPENDED 

OUTRIGHT FOR 24 MONTHS. You must immediately surrender your document to the 

Coast Guard. In keeping with 46 CFR 5.567 the time period of suspension does not commence 

until your document is surrendered to the Coast Guard. If you knowingly continue to use your 

document, you may be subject to criminal prosecution. 

Under 33 CFR 20.310(e) for good cause shown, an Administrative Law Judge may set 

aside this finding of Default. You may file a motion to set aside the findings with the ALJ 

Docketing Center, Baltimore. 

Service of this Order of Suspension upon you serves to notify you of your right to appeal 

as set fourth in 33 CFR Subpart J, Section 20.1001 (Attachment A). 

 

 M. J. DEVINE 

 Administrative Law Judge 

 United States Coast Guard 

Done and dated on July 28, 2008 at 

Norfolk, VA 

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Certificate of Service 

 I hereby certify that I have this day served the foregoing Order by facsimile upon the 

following parties and limited participants (or designated representatives) in this proceeding at the 

address indicated: 

 CWO James R. Mints 

 Sector San Diego 

 2710 North Harbor Drive 

 San Diego, CA 92101-1064 

 FAX: (619) 278-7235 

 PHONE: (619) 278-7232 

 ALJ Docketing Center 

 United States Coast Guard 

 40 South Gay Street, Rm.412 

 Baltimore, MD 21202 

 Fax: (410) -962-1746 

 Phone (410) 962-7434 

 I hereby certify that I have this day served the foregoing document(s) upon the following 

parties and limited participants (or designated representatives) in this proceeding at the address 

indicated by First Class Mail: 

 Keith B. Koch 

[REDACTED]

 

 

 Janice Parker 

 Paralegal to the Administrative Law Judge 

Done and dated on July 28, 2008 at 

Norfolk, VA 

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