UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_________________________________ 

UNITED STATES COAST GUARD 

Complainant

vs. 

SEAN PATRICK GOLDEN 

Respondent

_________________________________ Docket Number 2010-0174 

Enforcement Activity No. 3715810

DECISION AND ORDER

DISMISSING COMPLAINT WITHOUT PREJUDICE

Issued: June 03, 2010

By Administrative Law Judge: 

Honorable George J. Jordan

Appearances: 

CWO Steven A. Siler 

Sector Delaware Bay 

For the Coast Guard 

SEAN PATRICK GOLDEN, Pro se 

For the Respondent 
2 

DECISION AND ORDER

DISMISSING COMPLAINT WITHOUT PREJUDICE

This matter comes before me for the review of an Admission and a subsequent Settlement 

Agreement. The record consists of the Agency’s Complaint, the Respondent’s Answer and a 

Settlement Agreement. 

I. PROCEDURAL AND FACTUAL HISTORY 

The Coast Guard filed a Complaint in this matter on April 15, 2010 alleging that 

Respondent violated 46 USC 7703(1)(B) and 46 CFR 5.27, Misconduct, by being convicted of 

an offense listed in the National Driver Register Act. 

In its Complaint, the Agency set forth as jurisdictional allegations, that the Respondent 

was the holder of a merchant mariner credential and that “Respondent acted under the authority 

of MMD [redacted]- on 09/02/2007 by engaging in official matters regarding that license, 

certificate or document by other; was convicted of an offense listed in the National Driver 

Register Act.” Agency Complaint pg.1. 

The Coast Guard’s Complaint further alleged the following factual allegations: 

1. On September 2, 2007, Respondent was pulled over by PA State Police in 

Honesdale, PA and cited for use/possession of drug paraphenalia. 

2. On April 17, 2008, Respondent entered a court ordered treatment intervention 

group . Respondent was assessed by Wayne County Drug and Alcohol 

Commission and received successfully completed the course on May 6, 2008. 

3. On May 21st, 2008, Respondent entered a guilty plea for misdemeanor charge 

of use/possession of drug paraphenalia. Plea was accepted by Wayne County 

Magesterial District Judge. 

4. On March 10, 2010, Respondent applied for renewal of MMD. Request 

denied due to conviction of possession of drug paraphenalia. 
3 

The Coast Guard proposed as an order: 

One (1) month outright suspension followed by twelve (12) months probation. If 

Respondent does not comply with the following conditions during the probation 

period, the Respondent's credential(s) or endorsement(s) shall be suspended for an 

additional twelve (12) months. 

Conditions of probation: Respondent shall not be issued Complaint for NDRA 

Conviction during probationary period. 

The Respondent timely filed an Answer dated April 23, 2010 that was received at the 

ALJ Docketing Center on May 7, 2010. That Answer admits all jurisdictional and factual 

allegations and agrees with the proposed sanction. Further the Respondent checked the box 

indicated that he does not request any settlement discussions. 

Even though the Respondent indicated that he didn’t request settlement discussions in the 

Answer, nevertheless, a Motion for Approval of Settlement Agreement and Entry of Consent 

Order was filed on June 2, 2010 to which is attached a Settlement Agreement signed by 

Respondent on May 19, 2010 and the Coast Guard on May 10, 2010. The Settlement Agreement 

restates the proposed sanction as follows:

In light of the Respondent's cooperative attitude and good faith efforts to 

reach compliance, the Coast Guard assesses a mitigated sanction of 1 

month outright suspension followed by 12 months probation. If 

Respondent does not comply with the following conditions during the 

probation period, the Respondent's credential(s) shall be suspended 

outright for an additional 12 months . The conditions of probation are: 

Respondent shall not be issued a complaint during the probationary 

period for a conviction of NDRA. 

II. STANDARD OF REVIEW 

Since there has been a Complaint issued and in this case both an Answer of Admission 

and a Motion for Approval of Settlement Agreement and Entry of Consent Order have been 

filed, the Administrative Law Judge ‘s role is to review the pleadings and filings in the matter 

and determine (1) whether the Agency has jurisdiction in this matter, (2) whether the Complaint 
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is legally sufficient, and (3) if the sanction agreed to is consistent with agency regulation and 

policy. See 33 CFR §§ 20.309(f), 20.502(b) and 20.902 and 46 CFR § 5.567.1

 There was no hearing is this matter. Because this case arises from an Admission case in 

which there has been a later settlement filed, the facts supporting the jurisdictional and factual 

allegations are found solely within the confines of the Coast Guard’s Complaint, the 

Respondent’s Answer and the Settlement Motion and Agreement. My review is therefore limited 

to the Docket Record. See Appeal Decision 2677 (WALKER).

III. DISCUSSION 

 These proceedings are governed by the Administrative Procedure Act which requires in 5 

U.S.C. § 554(b) that persons “entitled to notice of an agency hearing shall be timely informed of 

... the legal authority and jurisdiction under which the hearing is to be held; ... and the matters 

of fact and law asserted.” The Coast Guard has established rules of Practice, Procedure and 

Evidence in Part 20 of Title 33 of the Code of Federal Regulations. Section 20.307(a) of those 

rules pertains to the requirements for Complaints: 

(a) The complaint must set forth— 

(1) The type of case; 

(2) The statute or rule allegedly violated; 

(3) The pertinent facts alleged; and 

(4)... (ii) The order of suspension or revocation proposed.

 

1

 See Interim Final Rule Rules of Practice, Procedure, and Evidence for Administrative Proceedings of the Coast 

Guard, 64 FR 28054 28058-59 (1999) which states: 

Under §20.502(b) any motion for proposed settlement must include the reasons why the ALJ should accept it. 

The ALJ will review such a settlement for the following information: 

(1) Did the appropriate parties sign the agreement? 

(2) Does the complaint allege sufficient facts? 

(3) Does the government have jurisdiction over the respondent? 

(4) Does the law permit the order? ... 

(5) Is the settlement fair under the circumstances? 

(6) Is the settlement clear? 

If the ALJ rejects the proposed settlement the ALJ must state the reason(s) in writing and will return the motion 

to the parties. 
5 

The purpose of the Complaint is to provide the Respondent notice of the allegations and must be 

sufficiently adequate to enable the Respondent to identify the offense so that the Respondent is 

in a position to prepare a defense or to make an appropriate answer. 

See e.g. Appeal Decisions 2386 (LOUVIERE), Appeal Decision 2277 (BANASHAK) and 

Appeal Decision. 2521 (FRYER). The Complaint is to provide the “legal and factual bases 

under which the Coast Guard is proceeding.” Appeal Decision 2655 (KILGORE) and Appeal 

Decision 2676 (PARKER). See also Appeal Decision 2326 (MCDERMOTT) (The thrust of 

modern pleading, especially in administrative proceedings, is toward fulfillment of a notice 

requirement).

The principal issue before me is whether this Complaint gives adequate notice of the 

basis for suspension or revocation. The charge was set forth as Misconduct and the Complaint 

cites the statutory and regulatory citations for Misconduct. While the Complaint alleges 

Misconduct, it then describes the Misconduct as a Conviction for a National Drivers Registry 

Act Violation. NDRA Convictions provide a separate basis for suspension or revocation with a 

different jurisdictional basis than Misconduct. Moreover, reading the allegations reveal that the 

actual conviction was for a dangerous drug law violation which is yet another basis for 

suspension or revocation and based on a separate section of the statute. 

A. Subject Matter Jurisdiction 

A recent Decision on Appeal establishes that even in non-contested cases such as 

Admissions and Defaults that the Complaint must allege sufficient facts to demonstrate 

jurisdiction. See Appeal Decisions 2677 (WALKER) and Appeal Decision 2656 (JORDAN)

46 U.S.C. § 7703 makes clear that to establish jurisdiction in a misconduct case, 

the action of misconduct alleged must be proven to have occurred while the 

mariner was “acting under the authority” of his merchant mariner credential. 

Appeal Decision 2677 (WALKER) (2008) 
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Here the Complaint states that Respondent is a holder of a credential and further 

describes that the Respondent acted under the authority by ‘engaging in official matters 

regarding that license, certificate or document by other:[sic] Was convicted of an offense listed 

in the National Driver Register Act.” Coast Guard regulations provide a definition of the term 

“acting under the authority” at 46 C.F.R. § 5.57. 46 C.F.R. § 5.57(b) states, in relevant part that, 

“[a] person is considered to be acting under the authority of the credential or endorsement while 

engaged in official matters regarding the credential or endorsement. This includes, but is not 

limited to, such acts as applying for renewal, taking examinations for raises of grade, requesting 

duplicate or replacement credentials, or when appearing at a hearing under this part.” The act of 

being convicted of a misdemeanor by a State court is not within this definition. Also the date 

stated in the jurisdictional allegation is the date of citation (9/2/2007) and not the actual date of 

conviction (5/21/2008). 

Conclusions as to Jurisdiction.

 Accordingly, this Complaint does not provide a sufficient jurisdictional basis for 

Misconduct. However, the inartfullness of the wording of the Complaint does not necessarily 

mandate dismissal of this action. Appeal Decision 2578 (CALLAHAN) As long as the 

Complaint actually states the elements of an offense including jurisdiction, I may find the 

pleadingsto be sufficient if the Respondent had adequate notice of the legal and factual bases 

under which the Coast Guard was proceeding. NDRA Convictions have been a basis for 

suspension and revocation since 1990, however, Coast Guard regulations still do not provide for 

them. The only law available is the statute itself and policy guidance in the Marine Safety 

Manual. As a result, there has been significant confusion in charging such offenses. When 

Congress added National Driver Register Act Convictions as a basis for suspension or 

revocation, it specifically made the basis for jurisdiction being the “holder” of a credential. 
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Section 7703 provides that: 

A license, certificate of registry, or merchant mariner's document issued by the 

Secretary may be suspended or revoked if the holder—(3) within the 3-year 

period preceding the initiation of the suspension or revocation proceeding is 

convicted of an offense described in section 30304(a)(3)(A) or (B) of title 49 

The complaint does set out an adequate jurisdictional allegation for such an offense in 

that the Respondent is a “holder” of a Coast Guard-issued credential. Other than for Misconduct, 

Negligence or Violation of Marine Safety Law or Regulation, an allegation of the Respondent 

being a “holder” of a Coast Guard issued mariner’s credential creates an adequate basis for 

jurisdiction in these proceedings. 

B. Sufficiency of Complaint. 

1. National Driver Register Act Conviction

However, a review of the factual allegations in the pleadings reveals that the conviction 

in this matter is not a National Driver Register Act Conviction. 46 USC § 7703(3) sets forth as a 

basis for suspension or revocation whenever a mariner “within the 3-year period preceding the 

initiation of the suspension or revocation proceeding is convicted of an offense described in 

section 30304(a)(3)(A) or (B) of title 49.” Those sections relate to the “ following motor 

vehicle-related offenses or comparable offenses: 

(A) operating a motor vehicle while under the influence of, or impaired by, 

alcohol or a controlled substance. 

(B) a traffic violation arising in connection with a fatal traffic accident, reckless 

driving, or racing on the highways.” 

The factual allegations which have been admitted by the answers include the allegation 

that “On May 21st, 2008, Respondent entered [a] guilty plea for [the] misdemeanor charge of 

use/possession of drug paraphenalia. Plea was accepted by Wayne County Magesterial [sic] 
8 

District Judge.” The use/possession of drug paraphenalia is not a listed or comparable offense. 

The fact that this conviction began as a traffic stop does not convert this to a NRDA offense. 

Therefore, these allegations are legally insufficient to establish an NDRA convication as a basis 

for suspension or revocation. 

2. Conviction of violating a dangerous drug law 

Rather than establishing a NDRA offense, the allegation in paragraph 3 of the Factual 

Allegations is sufficient to establish a violation of 46 USC § 7704(b) which states - 

(b) If it is shown at a hearing under this chapter that a holder of a license, 

certificate of registry, or merchant mariner's document issued under this part, 

within 10 years before the beginning of the proceedings, has been convicted of 

violating a dangerous drug law of the United States or of a State, the license, 

certificate, or document shall be suspended or revoked. 

 A recent appeal decision clearly establishes that a conviction for “Possession of Drug 

Paraphernalia” is a conviction for a dangerous drug law violation under 46 USC § 7704(b). 

Appeal Decision 2674 (KOVALESKI). See also Appeal Decision 1830 (PACKARD). The 

jurisdictional nexus for a drug violation conviction is the same as for NDRA convictions, which 

is being the holder of a Coast Guard-issued credential. 

 In this case, the allegations set out facts alleging a drug law conviction, but the Complaint 

is for Misconduct, cites the Misconduct statute and regulation, attempts to allege facts 

establishing “acting under the authority” jurisdiction and mentions the NDRA several times. 

Unlike NDRA convictions, drug law convictions have been the subject of suspension and 

revocation proceedings for over fifty (50) years. There is a separate statutory source and 

different rules and policy concerning drug use and conviction. The differences are far too great 

to allow me to amend the allegations to conform to the proof without substantially changing the 

allegations. 
9 

3. Conclusions as to Legal Sufficiency. 

 Even though, the Respondent admitted to these allegations including the allegation 

concerning the misdemeanor drug law conviction and he has also signed a settlement agreement 

agreeing to the sanction, the multiple defects in this Complaint are too great for me to conclude 

that the Respondent was given meaningful notice of the legal and factual bases under which the 

Coast Guard was attempting to proceed. Therefore I find that this Complaint is defective and it 

must be dismissed. See Appeal Decision 2326 (McDERMOTT) supra and Appeal Decision 

2407 (GONSALVES). In Appeal Decision 2568 (SANCHEZ et al) (1995), the Commandant 

places a duty on the ALJ to have defective charges withdrawn. That decision was based on an 

interpretation of 46 CFR 5.525 that was repealed in May 1999. However, I still regard this 

decision as having at least persuasive weight in that it stated that dismissal of allegations was 

appropriate where “the records suggest that the original inapposite charge and specification led 

to a complete misunderstanding between the [parties] as to what had to be shown to find the 

charge proved” That is precisely the circumstance in this matter. There is little doubt that the 

Respondent was convicted of a dangerous drug law violation but that is not what the agency 

alleged or to what the Respondent has admitted or entered into a settlement concerning. 

C. Consistency of Order with Agency Policy. 

 Finally I note that even if I had found that the Respondent had sufficient notice, I would 

have had to order further hearing in this matter. The proposed order in this matter, while 

possibly appropriate for some NDRA conviction cases, does not appear consistent with longstanding agency policy in drug conviction cases. 

Prior to 1984, the statute concerning Drug Use and Drug Convictions (46 USC 239a) stated 

that the Coast Guard may revoke merchant mariner credentials in such cases. Coast Guard policy and 

pertinent regulations mandated revocation. The NTSB found that revocation was discretionary on the 

part of the Commandant and that the regulations only mandated revocation on the part of the ALJ. As 
10 

a result, the statute was amended in 1984. 

 46 USC 7704 mandated revocation in all drug use and conviction cases except in drug use cases 

where cure was established. Subsequently, Appeal Decision 2335 (SWEENEY) and its progeny 

established a regime for establishing cure. A disconnect was seen because cure was not available in 

cases where a mariner was convicted of possession of personal use amounts of drugs. 

 A legislative fix was proposed and the result was the Coast Guard and Maritime 

Transportation Act of 2004 (“Coast Guard Authorization Act”). The new law now provides for 

suspension or revocation if a holder of a license, certificate of registry, or merchant mariner’s 

document was convicted of violating a dangerous drug law of the United States or of a State. A 

review of the Conference Report accompanying the Coast Guard Authorization Act illustrates that 

the Congressional intent 46 USC 7704 (b) was specifically amended in order to provide the ALJ to 

approve settlement agreements when drug convictions cases involve minor drug offenses. See H.R. 

CONF. REP. NO. 108-617, at 78 

 A recent Appeal Decision and several ALJ Decisions have authorized suspension only 

orders for some drug conviction cases (See Appeal Decision 2678 (SAVOIE) (2008); but see 

Appeal Decision 2674 (KOVALESKI)). However, other ALJ Decisions since SAVOIE have 

ordered revocation or allowed settlements. The Commandant stated that “Congress has not 

dictated a desired or preferred sanction for conviction of a dangerous drug law; rather Congress 

has merely authorized either sanction.” SAVOIE, supra. 46 U.S.C. § 7704(b). 

 Conclusions regarding Consistency of Order with Agency policy. 

While recognizing that a suspension-only order in a drug conviction case is allowed, I 

find that a one (1) month suspension with an additional potential twelve (12) month suspension 

that would be triggered only by a subsequent NDRA conviction within a twelve (12) month 

probationary period would not appear to meet the remedial purposes of these proceedings. 

These proceedings are remedial, not penal in nature, and “are intended to help maintain standards 
11 

for competence and conduct essential to the promotion of safety at sea.” 46 C.F.R. § 5.5 

“Congress enacted 46 U.S.C. § 7704 with the express purpose of removing those individuals 

possessing or using drugs from service in the United States merchant marine. House Report No. 

338, 98th Cong., 1st Sess. 177 (1983).” Appeal Decision 2638 (PASQUARELLA) . 

In order to find the mitigated sanction agreed to in the Settlement Agreement acceptable, 

there would have to be significant evidence of rehabilitation or evidence explaining why 

Respondent possessed drug paraphernalia even though the Respondent was not a user of 

dangerous drugs. I note that the ALJ Decision in the SAVIOE case specifically found that there 

was no evidence that the mariner was a user or had a substance abuse problem in weighing the 

factors that led to a four (4) month suspension. See USCG v. Savoie, SR-2005-15 (USCG ALJ 

Dec.). See also USCG v. Rich, SR-2009-13 (USCG ALJ Dec.) (Revocation appropriate where 

Respondent did not provide any evidence of any remedial action undertaken by him which might 

mitigate the imposed sanction in a case involving NDRA and Drug Convictions) 

 While USCG regulations concerning the appropriate order in conviction cases in 46 CFR 

5.59(b) were invalidated by SAVIOE and the Agency has not yet published new rules, the 

Marine Safety Manual has set out policy for such cases. In cases where an amended or new 

complaint is filed alleging Drug Law Conviction, I must remind the parties of that Coast Guard 

policy concerning the need to establish rehabilitation following such a conviction (See e.g.

Section B.9.b. Proposed Order for Drug Conviction Cases, Commandant Instruction 

M16000.10A Marine Safety Manual, Volume V, Investigations and Enforcement) . This Marine 

Safety Manual policy is guidance only and I am not bound by that policy and I remind the parties 

that I still have broad discretion in these cases and that am “statutorily authorized to consider 

suspension (in lieu of revocation) as an appropriate sanction in this proceeding” under SAVIOE 

if there is evidence in mitigation. 
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 The Coast Guard has encouraged settlement of cases for many years. One of the goals of 

the procedural rules was the establishment of new procedures for settlement agreements. The 

preamble to the Procedural Rules states that “this rule will help to promote settlement in cases 

that are undisputed. This will further help to eliminate unnecessary hearings.” See 64 FR 28055 

(1999). In keeping with the intentions of this rule and the principles of judicial economy, I will 

keep this docket open to permit the parties to amend the pleadings and settlement agreement to 

submit an amended Complaint and an acceptable agreement. 

IV. ORDER 

Accordingly, for the reasons noted above, I am making the following orders: 

1. The Complaint is found to be legally insufficient and must be DISMISSED or 

AMENDED. 

2. The Motion for Approval of Settlement Agreement and Entry of Consent Order is 

DENIED and the Settlement Agreement is rejected. 

3. The parties have until June 30, 2010 to file an amended Complaint and Settlement 

Agreement consistent with this decision with the Docket Center. 

4. If no amended filing is received by that date, the Complaint will be DISMISSED 

without prejudice. 

IT IS SO ORDERED. 

IT IS ORDERED that service of this Decision and Order upon Respondent will 

serve as notice to Respondent of appeal rights as set forth in 33 CFR Subpart J, 

Section 20.1001. (Attachment A) 

__________________________________________________ 

George J. Jordan 

US Coast Guard Administrative Law Judge

Date: June 03, 2010