UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD, 

Complainant, 

vs. 

JOHNNY OCE CONNOR, 

Respondent. 

_______________________ 

Docket No: 08-0326 

CG Enforcement Activity No: 3282231 

ORDER 

Date Issued: August 3, 2010 

Issued by: HON. BRUCE TUCKER SMITH 

 ADMINISTRATIVE LAW JUDGE

Appearances:

For Complainant: 

LCDR Melissa J. Harper 

U.S. COAST GUARD DISTRICT EIGHT LEGAL 

MSSD4 Jo N. Wildman, IO 

U.S. COAST GUARD SECTOR LOWER MISSISSIPPI RIVER

For Respondent: 

Stacy E. Seicshnaydre, Esq. 

M. Lucia Blacksher, Esq. 

James Flinn, Student Attorney 

Michael Hartnett, Student Attorney 

TULANE CIVIL LITIGATION CLINIC
TABLE OF CONTENTS 

I. PRELIMINARY STATEMENT ............................................................................ 3

II. HISTORY OF CASE .............................................................................................. 4

III. SUMMARY OF DECISION ................................................................................ 10

A. Coast Guard Motion of Objection.......................................................................... 11

B. Respondent’s Motion to Rescind ........................................................................... 12

IV. FINDINGS OF FACT........................................................................................... 12

V. DISCUSSION ....................................................................................................... 16

A. RELEVANT AUTHORITY .................................................................................. 16

1. 46 U.S.C. §7703 ................................................................................................. 16

2. Publication of 46 C.F.R. Part 10 Amendments .................................................. 17

3. Import of Amendments to Part 10 vis à vis the Instant Matter .......................... 18

B. PURPOSE .............................................................................................................. 24

C. JURISDICTION .................................................................................................... 24

1. GENERALLY .................................................................................................... 24

2. REOPENING UNDER 33 C.F.R. §20.904 ........................................................ 25

D. BURDEN OF PROOF ........................................................................................... 26

E. RESPONDENT’S COMPATIBILITY WITH GOOD DISCIPLINE & SAFETY 

AT SEA .................................................................................................................. 27

1. Recognition of Addiction ................................................................................... 27

2. Utilization of Addiction Resources .................................................................... 28

3. Demonstration of Significant Course Change .................................................... 34

VI. ULTIMATE FINDINGS OF FACT ..................................................................... 38

VII. AUTHORITY TO IMPOSE SANCTION ............................................................ 39

VIII. ORDER ................................................................................................................. 39

IX. CERTIFICATE OF SERVICE ............................................................................. 40

X. ATTACHMENT A: WITNESS & EXHIBIT LIST ............................................. 41

XI. ATTACHMENT B: NOTICE OF ADMINISTRATIVE APPEAL RIGHTS ..... 42

2 
I. PRELIMINARY STATEMENT 

On July 1, 2010, the court convened an evidentiary hearing in the abovecaptioned matter for purposes of gathering additional facts, testimony and evidence 

relating to Respondent Johnny Oce Connor’s (Respondent) safety and suitability for 

maritime service. The hearing was held at the U.S. Coast Guard Administrative Law 

Judge Courtroom in the Hale Boggs Federal Building, New Orleans, Louisiana, and 

conducted in accordance with the Administrative Procedure Act (APA), as amended and 

codified at 5 U.S.C. §§551-559, and the United States Coast Guard (Coast Guard) Rules 

of Practice, Procedure, and Evidence for Formal Administrative Proceedings of the Coast 

Guard as set forth at 33 C.F.R. Part 20. LCDR Melissa J. Harper, District Eight Legal, 

and MSSD4 Jo N. Wildman appeared on behalf of the Coast Guard. Respondent was 

present in court and represented by Stacy E. Seicshnaydre, Esq.; James Flinn, Student 

Attorney; and Michael Hartnett, Student Attorney; all of the Tulane Civil Litigation 

Clinic. 

 Both parties appeared, presented their respective positions and rested. Eight 

witnesses, in addition to Respondent, testified as to Respondent’s character, sobriety and 

suitability for maritime service. Respondent offered two exhibits into evidence, both of 

which were admitted. The Coast Guard called no witnesses and offered no exhibits into 

evidence. At the conclusion of testimony, the court permitted the parties to present their 

respective closing arguments and the administrative record was thereupon closed. 

3 
II. HISTORY OF CASE 

The instant matter has a lengthy and relatively complex history before the court, 

all of which is reviewed infra. The record reflects that this matter initially arouse out of 

Respondent’s March 24, 2008, conviction by the State of Tennessee for manslaughter. 

On July 30, 2008, the Coast Guard issued a Complaint under the statutory 

authority of 46 U.S.C. §7703(2) seeking the revocation of Respondent’s license and 

alleging, inter alia, that Respondent was convicted of manslaughter by a Tennessee court. 

On August 15, 2008, Respondent timely filed an Answer wherein he admitted all 

jurisdictional and factual allegations of the Complaint and requested to be heard by the 

court. On August 26, 2008, the matter was assigned by the Chief Administrative Law 

Judge (CALJ) to the undersigned Administrative Law Judge (ALJ). 

On August 28, 2008, the Coast Guard filed a Motion for Summary Decision 

seeking revocation in accordance with 33 C.F.R. §20.901. In its Motion for Summary 

Decision, the Coast Guard alleged there were no genuine issues of material fact and 

sought revocation of Respondent’s license based upon 46 C.F.R. §5.61(a)(4). On 

September 9, 2008, the court denied the Coast Guard’s Motion for Summary Decision as 

Respondent’s manslaughter conviction did not necessarily fit within the ambit of 46 

C.F.R. §5.61(a)(4), which related to conviction(s) for murder or attempted murder. 

On February 2, 2009, the Coast Guard filed a Second Motion for Summary 

Decision again alleging that there were no genuine issues of material fact and that it was 

therefore entitled to a decision as a matter of law. Citing 46 C.F.R. §10.201, the Coast 

Guard requested the court construe Respondent’s conviction for manslaughter as an 

“intentional homicide [conviction] for the purposes of revoking respondent’s license 

4 
under 46 U.S.C. §7703(2).” (Second Motion for Summary Decision at 2). On March 13, 

2009, Respondent filed a Memorandum in Opposition to the Coast Guard’s Motion for 

Summary Decision alleging, inter alia, that the Coast Guard failed to meet the burden of 

proof required for summary decision; that 46 U.S.C. §7703 is remedial in nature; that 46 

U.S.C. §7703(2) does not support revocation based upon a manslaughter conviction, or in 

the alternative, that 46 U.S.C. §7703(2) does not support revocation based upon a 

manslaughter conviction without an evaluation of Respondent’s suitability for maritime 

service. Also on March 13, 2009, Respondent filed a cross Motion for Summary 

Decision along with a Memorandum in Support thereof (collectively referred to as 

Memorandum in Support of Respondent’s Motion for Summary Decision) contending 

that “the Coast Guard cannot show that they are entitled to revocation under 46 U.S.C. 

§7703(2), by reference to 46 C.F.R. §5.61 nor 46 C.F.R. §10.201”and that Respondent 

was therefore entitled to summary decision as a matter of law. (Memorandum in Support 

of Respondent’s Motion for Summary Decision at 7). On March 25, 2009, the Coast 

Guard filed an Affidavit Opposing Respondent’s Motion for Summary Judgment1

 (Coast 

Guard’s Affidavit in Opposition) wherein the Coast Guard acknowledged that 46 U.S.C. 

§7703 allows for a sanction of either suspension or revocation. (Coast Guard’s Affidavit 

in Opposition at 1, fn 1). However, the Coast Guard continued its previous line of 

reasoning arguing that “because Respondent’s conviction of manslaughter under 

Tennessee Code Annotated §39-13-211 fits squarely under 46 C.F.R. Table 10.201(h) as 

a conviction for the offense of intentional homicide, summary judgment for Respondent 

is clearly not appropriate. (Id. at 2-3). The Coast Guard went on to argue that “since there 

 

1

 The court would note that Coast Guard Rules of Practice, Procedure, and Evidence for Form 

Administrative Proceedings do not provide for “Summary Judgment” but “Summary Decision.” 

5 
is no disputing that Respondent was convicted of manslaughter, and because 

manslaughter is an offense that, under 46 U.S.C. §7703, would prevent the issuance or 

renewal of a license, summary judgment for Complainant is warranted.” (Id. at 3). 

On April 14, 2009, the court convened a hearing for purposes of entertaining the 

parties’ respective pending motions for summary decision. Given that Respondent did 

not contest the Coast Guard’s allegation regarding his conviction for manslaughter and 

that there were no disputed facts relative to Respondent’s conviction; the court granted 

partial summary decision to the Coast Guard insofar as the manslaughter conviction was 

concerned. The court next held that “[f]or purposes of this Order, the undersigned 

regards voluntary manslaughter as an ‘intentional homicide.’” (April 16, 2009, Order). 

The court then discussed the practical interplay between 46 U.S.C. §7703(2), 46 C.F.R. 

§10.201 and Respondent’s conviction. The court found that “the statute essentially looks 

back in time to determine whether, given the fact of the conviction, the Coast Guard 

would have issued or renewed the mariner’s license under its pertinent regulations.” 

(April 16, 2009, Order). The court turned to 46 C.F.R. §10.201 and the table contained 

therein for guidance and observed that Table 10.201(h) listed an “assessment period” of 

seven to twenty years for a person convicted of intentional homicide. However, the court 

observed that the “assessment period” approach was flawed in two ways: that term was 

not defined and 10.201(h)(2) specifically provided that an assessment period could not 

begin until incarceration was complete. The court therefore found that any assessment 

period, as contemplated by 46 C.F.R. §10.201, could not commence until Respondent 

completed his final term of incarceration in April 2012. The court next noted an 

exculpatory provision to the assessment period requirement contained at 46 C.F.R. 

6 
§10.201(h)(4) which provided, that “if a person applies for a license before the minimum 

assessment period has elapsed, ‘then the applicant must provide evidence of suitability 

for marine service’ including information listed in §10.201(j).” (April 16, 2009, Order 

quoting 46 C.F.R. §10.201(h)(4)). Therefore, the court held that the applicable 

“regulations afford a criminally-convicted respondent an opportunity to present factors in 

support of his suitability for marine service when that respondent either applies for a 

license, renewal of a license, or faces the possibility of suspension or revocation.” (April 

16, 2009, Order). Based upon the foregoing, the court found that a material issue of fact 

existed sufficient to deny the Coast Guard’s Second Motion for Summary Decision as it 

related to revocation of Respondent’s license given that Respondent was not afforded an 

opportunity to present factors in support of his suitability for maritime service. (April 16, 

2009, Order). 

On April 24, 2009, the court convened an evidentiary hearing for purposes of 

gathering facts and evidence relating to Respondent’s suitability for maritime service. 

Therefore, the burden of persuasion was borne by Respondent to establish his suitability. 

During the course of that hearing, Respondent offered numerous testimonies, including 

his own, attesting to his sobriety, reliability and suitability for employment as a merchant 

mariner. The Coast Guard adduced the testimony of James Crouse, Chief, Safety and 

Suitability Branch at the National Maritime Center (NMC), to establish that Respondent’s 

application for a license would be denied based upon his conviction for voluntary 

manslaughter. On May 29, 2009, the court issued an order revoking Respondent’s 

license as Respondent did not prove his suitability for marine service as his “character 

7 
and habits of life [were] such that he could not be trusted with the duties and 

responsibilities of a licenses.” (May 29, 2009, Order citing 46 C.F.R. §10.201(h)(1)). 

On November 24, 2009, Respondent filed a Motion to Reopen Revocation 

Proceeding and Request for Status Conference together with a Memorandum in Support 

(collectively referred to as Motion to Reopen) thereof seeking to reopen this matter under 

33 C.F.R. §20.904(f). On December 3, 2009, the Coast Guard filed a Motion of 

Objection to Respondent’s Motion to Reopen Proceeding (Motion of Objection) alleging 

that, inter alia, the requirements of various subparagraphs of 33 C.F.R. §33.904 were not 

met and that appropriate forum for further dealings in this matter was under the 

provisions of administrative clemency as set forth at 46 C.F.R. §5.901. On December 17, 

2009, Respondent filed a Reply to U.S. Coast Guard’s Motion of Objection to 

Respondent’s Motion to Reopen Revocation Proceeding and Request for Status 

Conference (Reply to Motion of Objection) addressing the Coast Guard’s interpretation 

of 33 C.F.R. §20.904 and the appropriateness of the forum. On December 29, 2009, the 

court convened a telephonic hearing with the parties to entertain arguments relating to 

Respondent’s Motion to Reopen, which the court granted. More specifically, the court 

found that Respondent’s Motion to Reopen was within the ambit of 33 C.F.R. §20.904(f) 

and that Respondent must return to court and show good cause why the order of 

revocation must be modified, rescinded or revoked. (January 8, 2010 Order). 

Accordingly, Respondent’s Motion to Reopen is more appropriately identified henceforth 

as a Motion to Rescind, Revise or Otherwise Modify the Order of Revocation issued May 

29, 2009. 

8 
On February 23, 2010, the court convened an evidentiary hearing for the purposes 

of determining whether Respondent satisfied the dictates of 33 C.F.R. §20.904(f) and the 

May 29, 2009, Decision & Order sufficient to establish he is fit to return to maritime 

service. Although the court was satisfied that Respondent was complying with the terms 

of the May 29, 2009, Decision & Order, the court remained concerned whether sufficient 

time passed to fully demonstrate a significant change of course. Accordingly, the court 

held Respondent’s Motion to Rescind in Abeyance until July 1, 2010. (March 25, 2010 

Order). 

On April 20, 2010, the Coast Guard filed a Motion of Objection and Request for 

Reconsideration (Second Motion of Objection). The Coast Guard’s Second Motion of 

Objection contained numerous incorrect citations to regulations, as well as the record. 

Moreover, the purported “Prayer for Relief” contained only declaratory statements. On 

May 14, 2010, Respondent filed a Reply to U.S. Coast Guard’s Motion of Objection and 

Request for Reconsideration (Reply to Second Motion of Objection). On May 17, 2010, 

the court convened a post-hearing conference for purposes of arguing the Coast Guard’s 

Second Motion of Objection. The Coast Guard presented its arguments in a much more 

logical and cogent fashion than presented in its written Second Motion of Objection. 

Observing that it is the fundamental purpose of an ALJ to collect and determine all 

relevant facts as a precondition to issuing decisions and order, the court therefore held the 

Coast Guard’s Second Motion of Objection in Abeyance pending the July 1, 2010, 

hearing. (May 21, 2010, Order). 

On July 1, 2010, the parties appeared before the court to argue Respondent’s 

suitability for maritime service, as well as present their respective arguments concerning 

9 
the Coast Guard’s Second Motion of Objection. 2

 LCDR Melissa J. Harper, District 

Eight Legal, and MSSD4 Jo N. Wildman, Sector Lower Mississippi River, appeared on 

behalf of the Coast Guard. Respondent was present before the court and was represented 

by Stacy E. Seicshnaydre, Esq.; James Flinn, Student Attorney; and Michael Hartnett, 

Student Attorney; all of the Tulane Civil Litigation Clinic. Respondent, bearing the 

burden of persuasion, offered the testimony of eight witnesses,3 as well as his own, to 

attest to his sobriety, safety and suitability for maritime service. Respondent offered two 

exhibits, both of which were admitted into evidence.4 The Coast Guard called no 

witnesses nor did it offer any items into evidence. The parties presented their respective 

closing arguments and rested. The hearing of this matter, as well as its administrative 

record, was thereupon closed. 33 C.F.R. §20.709. 

III. SUMMARY OF DECISION 

The primary issue for adjudication herein is whether Respondent has established 

his safety and suitability for maritime service. 

However, the court must first resolve the following: the Coast Guard’s Second 

Motion of Objection and Request for Reconsideration, which has been held in abeyance 

since May 21, 2010, and Respondent’s Motion to Rescind, which has been held in 

abeyance since March 25, 2010. 

 

2

 Citations referencing the transcript are as follows: Transcript followed by the volume number and page 

number (Tr. at __ ). Volume numbers assigned to transcripts correspond to the hearing dates. Transcript 

Volume 1 refers to the April 14, 2009, hearing; Transcript Volume 2 refers to the April 27, 2009, hearing; 

Transcript Volume 3 refers to the February 23, 2010, hearing; Transcript Volume 4 refers to the May 17, 

2010, hearing; and Transcript Volume 5 refers to the July 1, 2010, hearing. Citations referring to Agency 

Exhibits are as follows: Investigation Officer followed by the exhibit number and Transcript Volume (CG 

Ex. 1, Tr. Vol.; etc.); Respondent’s Exhibits are as follows: Respondent followed by the exhibit letter 

(Resp. Ex. A, etc.); ALJ Exhibits are as follows: ALJ followed by the exhibit Roman numeral (ALJ Ex. I, 

etc.). 

3

 Respondent’s Witness List is attached hereto as Attachment A. 4

 Respondent’s Witness List is attached hereto as Attachment A. 

10 
The court must also examine whether Respondent has adhered to the tripartite 

framework set forth in its May 29, 2009 Order; and, although not fully dispositive, 

whether Respondent has abided by the six-part guidance contained within its March 25, 

2010 Order. 

The court has reviewed applicable jurisprudence; all pleadings and documents 

filed herein; and the transcripts of each hearing to reach a decision. 

A. Coast Guard Motion of Objection 

In response to the Coast Guard’s pending Second Motion of Objection, the court 

responds thusly: 

The Coast Guard’s “Motion” is not truly a motion in the classic sense. Rather, it 

seems more a declaration of the Coast Guard’s continuing objection to the court’s 

ongoing inquiry regarding Respondent’s suitability for sea service. However, the Coast 

Guard incorrectly asserts that the proper forum for Respondent to regain his license is by 

means of administrative clemency. The court’s continuing jurisdiction of this matter, and 

Respondent’s license, is discussed infra. 

The Coast Guard’s reliance upon 46 C.F.R. §10.211 is erroneous as discussed 

infra. 

The Coast Guard erroneously relies upon 46 C.F.R. §10.107 definition of “safe 

and suitable person.” Moreover, the Coast Guard’s analysis of that term is flawed as 

discussed infra. 

The Coast Guard’s parsing and interpretation of 33 C.F.R. §20.904 is erroneous as 

discussed infra. 

11 
Because the Coast Guard’s “Motion” seeks no particular relief, there is none to 

give or deny. 

B. Respondent’s Motion to Rescind 

In response to Respondent’s Pending Motion to Rescind, the court responds 

thusly: 

While it is true that Respondent has adhered to both the May 29, 2009, tripartite 

framework and the March 25, 2010, six-part guidance, significant questions concerning 

Respondent’s safety and suitability still remain. Given the totality of the facts adduced 

from his testimony and the testimony of his own witnesses, Respondent did not establish 

that he is presently suitable for safe maritime service. Hence, for the reasons cited infra, 

Respondent’s Motion to Rescind, Revise or Otherwise Modify the court’s May 29, 2009, 

Order of Revocation is DENIED. 

IV. FINDINGS OF FACT 

1. Prior to May 29, 2009, Respondent Johnny Oce Conner (Respondent) 

was the holder of a Coast Guard-issued Merchant Mariner’s License 

(MML or license), which was renewed on or about April 12, 2007. 

(CG Ex. 4 at Tr. Vol. 3). 

2. In the course of his maritime career, Respondent has applied for and 

received eight Coast Guard licenses (Tr. Vol. 3 at 96). 

3. On May 29, 2010, the court revoked Respondent’s license. (Decision 

& Order issued May 29, 2009). 

4. Respondent currently holds a valid Transportation Worker 

Identification Credential (TWIC). (Tr. Vol. 3 at 134-35; Tr. Vol. 5 at 

124, 137). 

5. Respondent is seventy years old and suffers from diabetes and high 

blood pressure. (Tr. Vol. 3 at 61; Tr. Vol. 5 at 135; Resp. Ex. F at Tr. 

Vol. 3). 

6. In 1967, Respondent began working on the river as a deckhand in the 

engine room. (Tr. Vol. 3 at 61). 

12 
7. In 1969, Respondent began working as a river pilot. (Tr. Vol. 3 at 62). 

8. Respondent has been employed by Canal Barge Company, Inc. for 

approximately ten years. (Tr. Vol. 3 at 29; Tr. Vol. 5 at 83, 107). 

9. Prior to the revocation of his license, Respondent served as a pilot 

aboard various Canal Barge Company vessels. 

10. Prior to the revocation of his license, Respondent served as a pilot with 

Captain Daryl Wheeler aboard the M/V NED MERRICK for six years. 

(Tr. Vol. 3 at 48). During that period of time, Respondent was never 

disciplined by Captain Wheeler. (Tr. Vol. 3 at 47). 

11. Following the revocation of his license, Respondent serves as an 

“observer” aboard various Canal Barge Company vessels. (Tr. Vol. 3 

at 57-58, 128-129, 153-155, Tr. Vol. 5 at 82, 100). 

12. As an observer, Respondent’s working hours aboard the vessel are 

twelve hours on duty and twelve hours off-duty. (Tr. Vol. 5 at 93). 

13. Respondent has worked as an observer to relatively inexperienced 

pilots, including Captain Pat Hood aboard the M/V ELIZABETH 

HUGER. (Tr. Vol. 5 at 86, 88). 

14. The M/V ELIZABETH HUGER is a towboat that pushes barges along 

the Mississippi River, as well as the Intracoastal Waterway. (Tr. Vol. 

5 at 92). 

15. The M/V ELIZABETH HUGER is captained by both Captain James 

Markland Hardy and Captain Luther Cleveland Ward. (Tr. Vol. 5 at 

83, 100). Neither Captain Hardy nor Captain Ward have disciplined 

Respondent for violation of company rules. (Tr. Vol. 5 at 85, 102). 

16. Prior to the revocation of his license, Respondent was evaluated to be 

in the top 20% of Canal Barge Company, Inc.’s pilots. (Tr. Vol. 3 at 

36). 

17. During his time on the waterway as a pilot, Respondent had not had an 

accident. (Tr. Vol. 3 at 62). 

18. During his time on the waterway as a pilot, Respondent was involved 

in one minor navigation issue wherein a rudder was bent. (Tr. Vol. 5 at 

107). 

13 
19. During his time on the waterway as a pilot, Respondent had a good 

safety record. (Tr. Vol. 5 at 107). 

20. Respondent has never been fired from a job. (Tr. Vol. 3 at 63). 

21. Respondent consumed alcohol for most of his life. (Resp. Ex. F. at 31 

at Tr. Vol. 3); As of July 1, 2010, Respondent testified he has been 

sober for approximately two years. (Tr. Vol. 5 at 132). 

22. As of July 1, 2010, Respondent has participated in AA for 

approximately eleven months. (Tr. Vol. 5 at 132) 

23. Respondent’s previous drinking habits included consuming a halfcase, or a full case, of beer on a weekend. (Resp. Ex. F at 31 at Tr. 

Vol. 3). 

24. Respondent acknowledges himself to be an alcoholic. (Tr. Vol. 5 at 

131-132). 

25. Evidence adduced at Respondent’s criminal sentencing revealed that 

Respondent is a person who becomes verbally abusive when 

intoxicated and that he has an angry temper. (Resp. Ex. F at 9, 13-14 at 

Tr. Vol. 2). 

26. Prior to the hearing of April 27, 2009, Respondent had not attempted 

any rehabilitative programs or sought counseling with groups such as 

Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) (Tr. Vol. 

2 at 121, 123-24). 

27. Following the revocation of his Coast Guard-issued license, 

Respondent became a regular participant in an Alcoholics Anonymous 

(AA) group in the Memphis, Tennessee. (Resp. Ex. B, C at Tr. Vol. 3); 

(Resp. Ex. A at Tr. Vol. 4). 

28. Following the revocation of his Coast Guard-issued license, 

Respondent, through Canal Barge Company’s Employee Assistance 

Program (EAP), sought counseling from Tony McAnally, LCSW. (Tr. 

Vol. 3 at 219-224; Resp. Ex. A at Tr. Vol. 3; Tr. Vol. 5 at 39-44, 125-

127). 

29. Respondent had been married to Marilyn Conner for approximately 

eight years at the time of her death. (Tr. Vol. 2 at 110). 

30. Respondent shot and killed his wife on April 16, 2006. He was 

sentenced by a Tennessee state court on March 24, 2008. (Resp. Ex. F 

at 43-50 at Tr. Vol. 3). 

14 
31. On the day Respondent killed his wife, his blood alcohol level 

registered .18 three to four hours after Respondent placed a 911 call to 

authorities reporting his wife’s fatal injury. (Tr. Vol. 2 at 140-41; 

Resp. Ex. F at 25). 

32. Respondent’s blood alcohol level was higher at the time he shot his 

wife and even higher as he drove his vehicle from bar to bar to his 

home. (May 29, 2009 Order). 

33. The Tennessee court specifically rejected Respondent’s proffered 

mitigation that he acted under strong provocation. More specifically, 

the sentencing court stated, “I don’t think . . . by one’s behavior 

engaging in bar hopping, excessive alcohol consumption can later be 

justified in saying that they acted under strong provocation when 

something escalates to the point that a gun is used.” (Resp. Ex. F at 45 

at Tr. Vol. 2). 

34. On March 24, 2008, the State of Tennessee sentenced Respondent to 

serve one week in confinement commencing April 15, 2009, for three 

consecutive years. (Resp. Ex. F at 50 at Tr. Vol. 2). 

35. An express condition of Respondent’s probation requires strict 

abstention “from the use of alcohol in any form or fashion.” (Resp. Ex. 

F at 50 at Tr. Vol. 2). 

36. Respondent was also sentenced to four years supervision (Resp. Ex. F 

at 50 at Tr. Vol. 2). 

37. Respondent’s parole was initially administered through Hardin 

County, Tennessee, and supervised by Jeff Nichols, State of 

Tennessee, Board of Probation and Parole, for approximately four to 

five months. (Tr. Vol. 2 at 15-16; 22). 

38. Within the first ninety days of his supervision by Mr. Nichols, 

Respondent was tested for drug and alcohol use. Respondent tested 

negative. (Tr. Vol. 2). 

39. Respondent must receive express authorization by the Tennessee court 

to travel out of state only for purposes of his employment. (Resp. Ex. 

A at Tr. Vol. 2). 

40. Respondent must obtain permission from the Tennessee court to travel 

out of state for personal reasons. (Tr. Vol. 2 at 77). 

15 
41. Respondent’s parole is now administered through Shelby County 

Probation Office due to a change in his residence. (Tr. Vol. 2 at 18). 

42. Prior to February 23, 2010, Respondent met with Andrew Bradford, 

his probation officer in Shelby County every three months. (Tr. Vol. 2 

at 74). Following the February 23, 2010, hearing, Respondent meets 

with Andrew Bradford approximately once a month. (Tr. Vol. 5 at 47). 

43. Respondent must report April 15, 2011, for a week-long confinement 

period before he will have completed the incarceration portion of his 

sentence. (Resp. Ex. F at Tr. Vol. 2). 

44. As of the July 1, 2010, hearing, Respondent had obtained an 

Alcoholics Anonymous sponsor George Payne. (Tr. Vol. 5 at 68). 

45. The court adopts the testimony of George Payne, which establishes 

that: “It takes a little while [to make significant changes in life], but 

you know, we didn’t get drunk overnight, we’re not going to get sober 

overnight. . . . It takes a period of reconstruction of character-building 

in order to become better.” (Tr. Vol. 5 at 70). 

46. Under the tutelage of George Payne, Respondent has completed the 

first three steps of the Alcoholics Anonymous Twelve Step Program 

and is presently working through the fourth step. (Tr. Vol. 5 at 69, 

133). 

47. Respondent is not an “applicant” for the purposes of 46 C.F.R. Part 10. 

V. DISCUSSION 

A. RELEVANT AUTHORITY 

1. 46 U.S.C. §7703 

The Coast Guard initiated the instant administrative proceeding against 

Respondent’s Merchant Mariner’s License under the statutory authority of 46 U.S.C. 

§7703(2), which provides that “[a] license. . . may be suspended or revoked if the 

holder--is convicted of an offense that would prevent the issuance or renewal of [same].” 

(Id.) (emphasis added). (Clearly, an Administrative Law Judge is vested with the 

discretion to impose a sanction of either suspension or revocation, ab intio.) 

16 
The question for resolution, here, is not whether Respondent committed an 

offense which would have precluded the issuance of a license, but rather, once his license 

was revoked by the court, whether there same court may rescind, reverse or otherwise 

modify the original order of revocation. That question is answered in the affirmative. 

In furtherance of 46 U.S.C. §7703, the Coast Guard promulgated 33 C.F.R. Part 

20 and 46 C.F.R. Part 10 to implement and effectuate the statute’s purpose. The text of 

46 U.S.C. §7703 has remained unchanged since 1996. Likewise, no substantive changes 

have been made to 33 C.F.R. Part 20 that have any bearing on the instant proceedings. 

The regulatory authority at 46 C.F.R. Part 10, however, saw significant changes in midApril 2009, as discussed infra. 

Because the Coast Guard relies upon 46 C.F.R. Part 10, a discussion of the 

applicability of those regulations is timely. 

2. Publication of 46 C.F.R. Part 10 Amendments 

It must be recognized that the purpose of 46 C.F.R. Part 10 is to determine and 

verify “the qualifications an applicant must possess” to be eligible for service on 

merchant vessels. 46 C.F.R. §10.101. Part 10 presumes a new or renewal application for 

a mariner’s credential or license. Part 10 governs “applicants,” it does not govern 

persons subject to the jurisdiction of this court. Nevertheless, on May 22, 2006, the 

Coast Guard announced a proposed rule, via publication in the Federal Register,

5

 that 

Coast Guard-issued Merchant Mariner Documents, Licenses and Endorsements would be 

merged into a single document to be known as the Merchant Mariner Credential (MMC). 

 

5

 “The Administrative Procedure Act, as amended by the Freedom of Information Act, requires that certain 

documents be published in the Federal Register. These include substantive rules and interpretations of 

general applicability, statements of general policy, rules of practice and procedure, descriptions of agency 

forms, rules of organization, descriptions of an agency’s central and field organization, and amendments or 

revisions to the foregoing.” A Research Guide to the Federal Register and the Code of Federal Regulations, 

McKinney, Richard J. (Nov. 2006) (citing 5 U.S.C. §552(a)(1)). 

17 
(71 Fed. Reg. 29462-01 May 22, 2006).6

 The proposed rule specified that it was limited 

to “chang[ing] only the application procedures and form in which the qualifications are 

presented.” (Id.). The proposed rule further explained that “[t]o reflect the proposed 

creation of the MMC, many nomenclature changes were made throughout titles 33 and 46 

CFR.” (Id.). The bulk “of the proposed substantive changes were made in Part 10.” (72 

Fed. Reg. 3605-01 Jan. 25, 2007). However, as clarified by a supplemental notice, “[t]he 

purpose of this rulemaking is to consolidate the merchant mariner qualification 

credentials. It is not intended to completely revise 46 CFR Subchapter B.” (Id.). 

On April 15, 2009, a new 46 C.F.R. Part 10 became effective.7 

3. Import of Amendments to Part 10 vis à vis the Instant Matter 

It is important to note that the proposed rules advised that the rulemaking was 

“not intended to alter the safety and suitability assessment requirements . . . [but] is 

intended only to make those changes necessary to consolidate the credentials, and 

streamline the application process.” (72 Fed. Reg. 3605-01 Jan. 25, 2007) (emphasis 

added). 

The Coast Guard strenuously argues that this court has erred in applying the 

predecessor version of 46 C.F.R. §10.201 to the instant matter instead of the April 15, 

2009, version found at 46 C.F.R. §10.211. Such a position, however, flies in the face of 

the purpose of Part 10 and/or of a stated preference against retroactivity of regulations. 

 

6

 Coast Guard’s Notice of Proposed Rulemaking (NPRM) entitled “Consolidation of Merchant Mariner 

Qualification Credentials” 

7

 Additionally, in support of the consolidated credential, the Notice of Proposed Rulemaking (NPRM) 

proposed a reorganization of the regulations. More specifically, the NPRM called for those regulations 

previously contained in 46 CFR Part 10 be moved in their entirety to create a new part 11. A new Part 10 

would then be created, which would include only the application procedures and information pertinent to 

the MMC that applies to all mariners.”7

 (71 Fed. Reg. 29462-01 May 22, 2006). On March 16, 2009, the 

Federal Register subsequently published the Coast Guard’s Final Rule consolidating the regulations 

covering issuance of merchant mariner qualification credentials. (74 Fed. Reg. 11196-01 Mar. 16, 2009). 

18 
Respondent herein was charged by the Coast Guard on July 30, 2008. The version of 46 

C.F.R. §10.201 extant on that date controls. It must also be recognized that 46 C.F.R. 

§10.201 was used as a framework for the initial determination to revoke Respondent’s 

license. 

Pursuant to 46 C.F.R. §5.65, “[t]he decisions of the Commandant in cases of 

appeal . . . are officially noticed and the principles and policies enunciated therein are 

binding upon all Administrative Law Judges, unless they are modified or rejected by 

competent authority.” (Id.). A review of the Commandant’s Decisions on Appeal 

(CDOA) reveals that the Commandant has addressed the issue of retroactivity in Appeal 

Decision No. 2646 (McDonald) (2003). The McDonald decision was “based on the 

regulations that were in effect at the time of the [event at issue] . . . , July 31, 2000. 

Subsequent to the events giving rise to this case, the regulations in question (49 C.F.R. 

Part 40) were modified in January 2001.” The Commandant, reviewing the regulations, 

observed that there was no “affirmative language to indicate that the regulations were 

intended to be retroactive. In fact, . . . where the regulations were changed, it was 

apparent that the [agency] specifically intended that the new regulations be prospective.” 

In addition to a review of the regulations at issue, the Commandant adopted the 

presumption against retroactivity as articulated by the Supreme Court in Bowen v. 

Secretary of Health & Human Services, 488 U.S. 204, 208 (1988). “There is a strong 

presumption against retroactive application of laws and regulations, and a strong 

presumption in favor of prospective application. . . . Retroactivity is not favored in the 

law. Thus, congressional enactments and administrative rules will not be construed to 

have retroactive effect unless their language requires this result.” (Id.). 

19 
Clearly, this court must apply the analysis and rule of the McDonald decision to 

the instant matter. This court’s decision was based upon the regulations that were in 

effect at the time Respondent was charged on July 30, 2008.8 Title 46 C.F.R. Part 10, 

was modified, effective April 15, 2009. The hearing of this matter to determine 

Respondent’s safety and suitability for maritime service was held on April 24, 2009, and 

the court revoked Respondent’s license on May 29, 2009. The court held subsequent 

hearings as discussed supra. The Coast Guard incorrectly maintains that this court should 

have applied the April 15, 2009, regulations, an argument that is in direct contravention 

of McDonald. 

The court’s review of the three Federal Register publications, as well as the April 

15, 2009, version of 46 C.F.R. Part 10 reveals that the regulations contained therein were 

not intended to be retroactive. There is no language anywhere that this court can locate 

in the April 15, 2009, version of 46 C.F.R. Part 10 that would indicate that the 

Department of Homeland Security, Coast Guard, intended retroactive application. 

Therefore, in accordance with McDonald, this court shall continue to apply the 

regulations as they existed on July 30, 2008, when Respondent was charged, here, by the 

Coast Guard. It must be reiterated that 46 C.F.R. Part 10 governs the suitability of 

applicants for maritime licenses or credentials. The regulatory framework clearly 

describes the process whereby a would-be applicant secures an appropriate credential. 

As mentioned supra, a new Part 10 was created and those regulations previously 

contained within Part 10 were relocated to Part 11. The April 15, 2009, version of Title 

46 Section 10.101, “Purposes of rules in this part” changed significantly from its 

 

8

 The Coast Guard’s case is predicated upon Respondent’s March 2008, conviction for manslaughter by a 

Tennessee court. 

20 
predecessor, particularly with regard to an “applicant” as a “safe and suitable person.” 

Previously, 46 C.F.R. §10.101 made no reference to the safety and suitability of a 

mariner. The April 15, 2009, version of 46 C.F.R. §10.101(d) provides that: “the 

regulations in this part provide: . . . [a] means of determining whether the holder of an 

MMC is a safe and suitable person.” (Id.). Another aspect of the newly enacted Part 10 is 

the definition of terms. Previously, the definition of terms, as set forth at 46 C.F.R. 

§10.104, applied to the entirety of Part 10. However, the new definition of terms, now 

set forth at 46 C.F.R. §10.107, apply only to Subchapter B of Part 10.9

 Additionally, 

unlike the prior definition of terms, 46 C.F.R. §10.107 now defines a “safe and suitable 

person” as follows: 

[A] person whose prior record, including but not limited to 

criminal record and/or NDR record, provides no information 

indicating that his or her character and habits of life would support 

the belief that permitting such a person to serve under the MMC 

and/or endorsement sought would clearly be a threat to the safety 

of life or property, detrimental to good discipline, or adverse to the 

interests of the United States. See 46 CFR 10.211 and 10.213 for 

the regulations associated with this definition. 

(Id.) (emphasis added). 

Even though this definition applies only to an “applicant,” and not a person 

situated as Respondent, herein, there is no guidance as to how a person’s prior record or a 

person’s character and habits of life are to be evaluated vis à vis his suitability for 

maritime service under a MMC. The court would note that the regulation appears to give 

the Coast Guard immense subjective discretion over who receives a credential. 

Although not controlling, 46 C.F.R. §§10.211, as cited within the current 

 

9

 As used in this subchapter, the following terms apply only to merchant marine personnel credentialing 

and the manning of vessels subject to the manning provisions in the navigation and shipping laws of the 

United States. 46 C.F.R. §10.107(b). 

21 
definition of “safe and suitable person,” is of some utility and guidance to the present 

inquiry by the court.10 

Of paramount importance to this discussion is that Section 10.211, entitled 

“Criminal Record Review” repeatedly refers to “applicants” and applications seeking an 

MMC, endorsements thereto and/or duplicate MMCs.11 Although the term “applicant” is 

not defined within §10.107, the plain meaning of “applicant” can be easily be interpreted 

as “one who applies.” Respondent herein is clearly not an “applicant” inasmuch as he is 

not applying to the Coast Guard for a new MMC. A complete review of this particular 

section reveals that despite a few changes in nomenclature and a renumbering of the 

subparagraphs therein, 46 C.F.R. §10.211(i) is nearly identical to that of its predecessor at 

46 C.F.R. §10.201(h)(4). Both of these subparagraphs state that “[i]f a person with a 

criminal conviction applies before the minimum assessment period . . . has elapsed, then 

the applicant must provide . . . evidence of suitability for service in the merchant marine.” 

46 C.F.R. §10.211(i); 46 C.F.R. §10.201(h)(4) (emphasis added). Both of these 

subparagraphs then refer the reader to a list of non-exclusive factors that that are evidence 

of suitability; these factors are contained in a subsequent subparagraph. (Id.). The nonexclusive factors listed in 46 C.F.R. §10.211(l) mirror the non-exclusive factors 

previously set forth in 46 C.F.R. §10.201(j). Those factors are as follows: 

 

10 Section 10.213, entitled “National Driver Register,” is inapposite herein. As mentioned supra

Respondent was not convicted of an offense under the National Driver Register Act. Additionally, like 46 

C.F.R. §10.211, the text of 46 C.F.R. §10.213 is focused upon applicants and applications for an original or 

reissuance of an MMC. Again, Respondent is not an applicant nor has he submitted an application for an 

original issuance or reissuance of his license. 

11 Notably, the term “person” is used within 46 C.F.R. §10.211(f); however, that particular subparagraph 

focuses upon convictions relating to violating dangerous drug laws and offenses under the National Driver 

Register Act. 46 C.F.R. §10.211(f). Respondent’s conviction at issue herein does not implicate either 

dangerous drug laws or offenses under the National Driver Register Act. 

22 
 (1) Proof of completion of an accredited alcohol- or 

drug-abuse rehabilitation program. 

 (2) Active membership in a rehabilitation or counseling 

group, such as Alcoholics Anonymous or Narcotics 

Anonymous. 

 (3) Character references from persons who can attest to 

the applicant’s sobriety, reliability, and suitability for 

employment in the merchant marine including parole 

or probation officers. 

 (4) Steady employment. 

 (5) Successful completion of all conditions of parole or 

probation. 

Problematically, and as the court acknowledged in the May 29, 2009, Decision 

and Order, the above-listed factors lack specific guidance or discussion of a nexus 

between a given criminal conviction and a respondent’s suitability for sea service. 

Moreover, whether the court applies 46 C.F.R. §10.211(i) and (l) or 46 C.F.R. 

§10.201(h)(4) and (j) does not alter the outcome. Both regulations clearly apply to 

“applicants.” The “assessment period” referred to in both regulations is inapplicable as 

an “assessment period” relates to an applicant’s incarceration period.12 Again, since 

Respondent herein is not an “applicant,” reference to or reliance upon “assessment 

periods” is of no value to a determination of a mariner’s safety and suitability for 

maritime service. The regulations do not speak to those individuals who occupy the 

position of a respondent petitioning the court to rescind, modify, etc. a previous order. In 

this regard, Respondent’s legal arguments are well taken. Thus, the court relied, and still 

relies, upon the non-exclusive list of factors for insight only. 

 

12 The court acknowledges Respondent’s incarceration period is not yet complete and will not be complete 

until April 2012. 

23 
B. PURPOSE 

Coast Guard suspension and revocation actions are administrative proceedings 

that are remedial, not penal in nature and are “intended to help maintain standards for 

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

Pursuant to 46 C.F.R. §5.19, an ALJ is vested with the authority to conduct hearings and 

to suspend or revoke a credential, license, document or certificate for violations arising 

under 46 U.S.C. §§7703 and/or 7704. 

Determining the weight of the evidence and making credibility determinations as 

to the evidence is within the sole purview of the presiding ALJ. See Appeal Decision No. 

2640 (PASSARO) (2003). Additionally, the presiding ALJ is vested with broad 

discretion in resolving inconsistencies in the evidence, and findings do not need to be 

consistent with all of the evidence in the record as long as there is sufficient evidence to 

reasonably justify the findings reached. Appeal Decision No. 2639 (HAUCK) (2003). 

C. JURISDICTION 

1. GENERALLY 

“The jurisdiction of administrative bodies is dependent upon the validity and the 

terms of the statutes reposing power in them.” Appeal Decision No. 2620 (COX) (2001) 

quoting Appeal Decision No. 2025 (ARMSTRONG) (1975). Where an administrative 

forum acts without jurisdiction its orders are void. (Id.). Therefore, establishing 

jurisdiction is critical to the validity of a proceeding. Appeal Decision No. 2677 

(WALKER) (2008) (internal citations omitted); Appeal Decision No. 2656 (JORDAN)

(2006). Jurisdiction is a question of fact that must be proven. Appeal Decision No. 2425 

(BUTTNER) (1986). 

24 
At the time the Complaint herein was filed, Respondent was the holder of a Coast 

Guard issued Merchant Mariner’s License. Respondent’s status as the holder of a 

license, in and of itself, afforded the Coast Guard jurisdiction to institute a suspension 

and revocation proceeding against Respondent’s license. Accordingly, this court 

possesses subject matter jurisdiction over the matter under 46 U.S.C. §§7703 and 7704, 

as well as 46 C.F.R. §5.19. 

2. REOPENING UNDER 33 C.F.R. §20.904 

Pursuant to the guidelines of 33 C.F.R. §20.904, the decision to reopen a matter is 

within the presiding ALJ’s discretion. Accordingly, on December 29, 2009, the court 

granted Respondent’s Motion to Reopen the instant proceedings under 33 C.F.R. 

§20.904(f).13 Respondent was ordered to appear on February 23, 2010, “and show good 

cause why the Decision and Order of May 29, 2009, revoking his Coast Guard-issued 

license [was] no longer valid and establish proof to why the revocation order must be 

modified, rescinded, or revoked,” as requested. (Order Granting Respondent’s Motion to 

Reopen, January 8, 2010). Although the court was “satisfied that Respondent [was] 

complying with the terms of the May 29, 2009, Decision and Order” and that Respondent 

was demonstrating a change in course, “the court [remained] concerned whether enough 

time ha[d] passed for Respondent to fully demonstrate that he has selected a significant 

course change in his life.” (Order Holding Respondent’s Motion in Abeyance, March 25, 

2010). Therefore, the court set forth six action items for all concerned parties to address 

and ordered Respondent’s Motion to be held in abeyance until July 1, 2010. (Id.). 

 

13 Order Granting Respondent’s Motion to Reopen, January 8, 2010. 

25 
At the outset of the July 1, 2010, evidentiary hearing, the court announced that “to 

date the Respondent has demonstrated sufficient rehabilitative steps so as to warrant 

further inquiry by this court under 33 C.F.R. §20.904(a), (c) and (f).” (Tr. Vol. 5 at 9). 

 Herein lies the divergence of positions between the Coast Guard and Respondent. 

The former contending that Respondent must apply for his MMC under the purview of 46 

C.F.R. Part 10 and the latter contending that the court’s jurisdiction over this Respondent 

is ongoing, per the strictures of 46 U.S.C. § 7703; 46 C.F.R. § 5.19; and 33 C.F.R. 

§20.904. The latter course is the one observed by this court. Accordingly, this court has 

retained jurisdiction over the instant matter pursuant to 46 U.S.C. §7703 and 46 C.F.R. 

§5.19 and 33 C.F.R. §20.904. 

Because the court finds that it remains vested with jurisdiction to reopen the 

proceeding under 46 U.S.C. §7703, 33 C.F.R. §20.904 and 46 C.F.R. §5.19, the court 

further finds that the provisions of 46 C.F.R. §10.235 and the administrative clemency 

provisions within 46 C.F.R. Parts 5 and 10 are inapplicable herein.14 In sum, the 

authority of the court is paramount in this instance. 

D. BURDEN OF PROOF 

The Administrative Procedure Act (APA), 5 U.S.C. §§551-559, applies to Coast 

Guard Suspension and Revocation hearings before United States ALJs. The APA 

authorizes imposition of sanctions if, upon consideration of the entire record as a whole, 

the charges are supported by reliable, probative and substantial evidence. See 5 U.S.C. 

§556(d). 

 

14 The court recognizes that it is without jurisdiction to issue licenses upon application, as that is within the 

authority conferred upon the National Maritime Center. 

26 
Presently, the onus is upon Respondent to establish by a preponderance of the 

evidence that he is now fit for maritime duty by a showing of his safety and suitability. 33 

C.F.R. §§20.701; 20.702(b). “The term substantial evidence is synonymous with 

preponderance of the evidence as defined by the U.S. Supreme Court.” Appeal Decision 

2477 (TOMBARI) (1988). The burden of proving a fact by a preponderance of the 

evidence “simply requires the trier of fact ‘to believe that the existence of a fact is more 

probable than its nonexistence before [he] may find in favor of the party who has the 

burden to persuade the [judge] of the fact’s existence.’” Concrete Pipe & Products of 

Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993) 

(quoting In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring) (brackets in 

original)). 

E. RESPONDENT’S COMPATIBILITY WITH GOOD DISCIPLINE & 

SAFETY AT SEA 

 Admittedly, the phrase “compatible with the requirement of good discipline 

and safety at sea” is a showing required by 33 C.F.R. §33.904(f)(1) and not by 33 C.F.R. 

§33.904(a) or (c). However, the court finds that this phrase is particularly useful in 

determining Respondent’s safety and suitability for maritime service. As part of 

determining whether Respondent has proved he is now fit for maritime service, the court 

shall undertake a review of the tripartite framework set forth in the May 29, 2009, 

Decision and Order in conjunction with the six-point outline set forth in the March 25, 

2010, Order Holding Respondent’s Motion in Abeyance. 

1. Recognition of Addiction 

By his own admission, Respondent, who is almost seventy years old, started 

drinking at age fifteen. (Tr. Vol. 3 at 249). In direct contravention of his previous 

27 
assertions that he was not an alcoholic (Tr. Vol. 2 at 143), Respondent now admits his 

alcoholism. (Tr. Vol. 5 at 131-132; see generally, Tr. Vol. 3 at 216-254). More 

importantly, and as of July 1, 2010, Respondent testified that he is presently sober and 

has been so for approximately two years. (Tr. Vol. 5 at 132). The court believes that 

Respondent comprehends the high level of commitment required to maintain sobriety in 

both his professional and personal life. (Tr. Vol. 3 at 216-254). 

2. Utilization of Addiction Resources 

Respondent is acutely aware that “the recovery will be . . . a whole lifetime . . .[as 

there is] never no recovery for a[n] alcoholic.” (Id.). Following the revocation of his 

license nearly one year ago, Respondent now makes use of, and benefits from, a variety 

of available recovery resources. 

a) Active Participation in AA 

Respondent has become a regular, if not daily, attendee at Alcoholics’ 

Anonymous (AA) meetings since June 17, 2009. (Tr. Vol. 5 at 127; Tr. Vol. 3 at 227; 

Respondent’s Ex. A at Tr. Vol. 5). Respondent’s regular attendance was confirmed by 

the telephonic testimony of Don Hall, a fellow AA attendee and the telephonic testimony 

of George Payne, Respondent’s AA sponsor. (Tr. Vol. 3 at 28-43; Resp. Ex. B, C at Tr. 

Vol. 3). Through his regular attendance at AA meetings, it appears to the court that 

Respondent has established a social network upon which he can rely to provide a sober 

environment. 

Hall testified that he met Respondent on Respondent’s first day at their local AA 

group meeting and since that time they have grown to become “really good friends.” (Tr. 

Vol. 5 at 58). Hall further testified that he and Respondent’s AA acquaintance and 

28 
ensuing friendship includes frequent telephone conversations. If both gentlemen are in 

the Memphis area, then they speak on a near daily basis. If one or both gentlemen are out 

of the Memphis area, then they speak “once every week or maybe two.” (Id. at 59). With 

regard to their AA group meetings, Hall testified as to the general structure of the 

meetings and Respondent’s participation in the meetings. (Id. at 57, 60). Hall described 

Respondent as “quite reserved” when he began attending the meetings, but as Respondent 

has continued to attend meetings “he’s blossomed out.” (Id. at 60-61). Hall further 

testified that Respondent has made “a lot of friends there at the meeting,” that 

Respondent is respected by others and that others enjoy Respondent’s participation. (Id.

at 61). Respondent’s participation has been recognized by the elected leadership of their 

AA group; he was recently presented with a key to the meeting room, which allows 

Respondent to come and go at will to set up for meetings or to meet with his sponsor. 

(Id.). Additionally, Hall testified that Respondent is committed to his sobriety and the 

teachings, including the socialization aspects, of AA. (Id. at 62-64). 

Since the February 23, 2010, hearing, Respondent has obtained his AA “sponsor,” 

George Payne. Respondent’s previous testimony reflects that he put a great deal of 

thought and consideration into the important role a sponsor will play in his life. (Tr. Vol. 

3 at 231-233). Payne explained that the role of a sponsor is to “help people that are new 

get acquainted with the program, learn how to work the steps in the program, and how to 

become responsible about the program so they can help someone else a few years down 

the line to get sober and stay sober.” (Tr. Vol. 5 at 68). In his capacity as “sponsor,” 

Respondent and Payne meet at least once a week to review and discuss the various steps 

of the AA program. (Id. at 69). Presently, Respondent is “working on his fourth step, 

29 
which is an inventory.” (Id.). Curiously, Payne testified “we discussed the first step of 

Alcoholics Anonymous, and then we set a few days later and we discussed the second 

step and the third step, and then he got serious, and we took the [first] three steps.” 

(Id.) (emphasis added). Regarding Respondent’s commitment and progress, Payne 

testified, “I think he’s doing okay. You know, some of us get it quick, some get it slow, 

but Johnny’s just about . . . an average person in AA.” (Id. at 70). Payne described 

Respondent’s attitude as “real good” and that “he has yet to balk at anything I ask him to 

do as far as being associated with Alcoholics Anonymous.” (Id.). Payne agreed that 

Respondent has made some significant changes in his life and stated that “he 

[Respondent] is slowly but surely changing. It takes a little while, but you know, we 

didn’t get drunk overnight, we’re not going to get sober overnight. . . . It takes a period of 

reconstruction of character-building in order to become better.” (Id.) (emphasis added). 

The court notes with particularity, and ascribes great weight to Mr. Payne’s observation 

that an alcoholic does not “get sober overnight.” 

b) Counseling Session Attendance 

By participating in the Employee’s Assistance Program (EAP) sponsored by his 

employer, Canal Barge Company, Respondent has been evaluated by a clinical 

psychiatrist and has receiving counseling from a Licensed Clinical Social Worker 

(LCSW). Respondent has met with his EAP-funded counselor, Tony McAnally, LCSW, 

approximately thirteen times, seven of which occurred subsequent to the February 23, 

2010, show cause hearing.15 (Tr. Vol. 5 at 40). McAnally, as in his previous testimonies, 

 

15 Following the conclusion of the February 23, 2010, show cause hearing, Respondent met with McAnally 

on April 8, 2010; April 14, 2010; May 25, 2010; June 7, 2010; June 15, 2010; and June 22, 2010. (Tr. Vol. 

5 at 40). 

30 
testified Respondent maintained “a positive attitude” towards treatment and continued to 

display improvement throughout the course of counseling sessions. (Id.). McAnally 

described Respondent has displaying a “depressed and tearful” affect at the initial session 

and diagnosed Respondent as having “a major depression single episode with alcohol 

abuse.” (Id. at 40; 42). McAnally did not perform the Minnessota Multiphasic 

Personality Inventory (MMPI) nor conduct any other written evaluations on Respondent, 

but based his assessment from clinical interactions and interviews with Respondent. (Id.

at 43). McAnally testified that Respondent did not need any further therapy given 

Respondent’s significant progress and his willingness to comply with counseling. (Id. at 

41). The court notes that Mr. McAnally is a Licensed Clinical Social Worker, not a 

psychologist or a psychiatrist. Hence, his diagnostic and prognostic conclusions are only 

of a limited use herein. 

c) Employment with Canal Barge Company 

Respondent has continued to faithfully serve his employer, Canal Barge 

Company, observing all lawful and pertinent company rules. Respondent has 

considerable experience navigating the inland waters of the United States, particularly the 

Mississippi River, as a pilot. Despite the revocation of Respondent’s license on May 29, 

2009, Canal Barge Company has retained Respondent in their employ as an “observer.” 

The court cannot help but be impressed by Canal Barge Company’s role as a good 

corporate citizen—standing by its employee as that employee battles a lifelong chemical 

addiction. Canal Barge Company is to be highly commended for its role in these 

proceedings. 

31 
Respondent testified that he has an “excellent” work record with Canal Barge 

Company. (Tr. Vol. 5 at 133). Respondent’s direct supervisor, Port Captain Paul Barnes, 

similarly describes Respondent has having “an excellent work record” in addition to 

having an excellent safety record. (Id. at 107). 

 In his current position of “observer,” Respondent shares his experience and 

“tricks of the trade” with newly minted pilots. (Id. at 101, 108, 133). Respondent stands 

watch with new pilots and dispenses advice as needed. (Id. at 86, 101, 134). Since his 

revocation, Canal Barge Company has instructed Respondent that he is to not maneuver 

the vessel nor is he to touch the vessel’s steering mechanism whether it be a wheel or 

sticks. Respondent has abided by those instructions. (Id. at 87, 134-135). 

d) No Notice Testing 

In addition to the testing regime already in place at Canal Barge Company, and 

the testing Respondent was subject to by his probation and parole officer, the court 

directed Respondent submit to at least six no-notice drug and/or alcohol tests prior to the 

July 1, 2010, hearing. 

The testimony of William Thomas Smith, Vice President of Human Resources for 

Canal Barge Company, was offered by Respondent to establish that the court’s order 

regarding testing was properly accomplished. Smith testified he was instructed to place 

Respondent “in a special random testing program over and above whatever he would 

have been eligible—or participated in as one of our marine employees.” (Tr. Vol. 5 at 

114). Due to a disconnect in communications between Canal Barge Company and the 

Coast Guard, Smith testified that Canal Barge Company “applied the random testing 

protocol, that’s part of our Coast Guard compliant program to . . . [Respondent] and . . . 

32 
three tests were conducted.” (Id.). However, following the May 17, 2010, hearing, the 

testing was conducted by an independent third party known as Western Kentucky 

Corporation. (Id. at 115). Smith explained that “West[ern] Kentucky is the contractor 

[Canal Barge Company] access[es] or hire[s] to help either collect the samples from [] 

mariners, or they’re involved in the communications.” (Id. at 115-116). Following the 

chain of custody upon gathering the collection samples, Western Kentucky then sends the 

samples to a lab for testing and review by a Medical Review Officer (MRO). Western 

Kentucky then contacts Canal Barge Company and reports the results of testing. (Id. at 

116). Smith further testified that Western Kentucky was under standing orders to 

conduct all testing in accordance with Coast Guard protocol. (Id. at 118). 

Smith’s testimony, as well as evidence tendered to the court, reflects that 

Respondent submitted to seven no-notice drug and/or alcohol tests, all of which tested 

negatively for the presence of drugs or alcohol. (Id. at 122; Resp. Ex. B at Tr. Vol. 5). 

e) Compliance with March 24, 2008 Sentencing 

Respondent’s probation parole officer Andrew Bradford, of the Tennessee Board 

of Probation and Parole Offices in Memphis Tennessee, testified that he sees Respondent 

monthly. Bradford described Respondent as “jovial” and “believes [him] to be on the 

right path” with regard to his sobriety. (Tr. Vol. 5 at 47-48). Bradford further testified 

Respondent has passed all drug16 and alcohol17 screens without issue, including three 

drug tests and one alcohol test administered since the February hearing. (Id. at 48-50). 

Moreover, Respondent has complied with the terms of his parole. (Id. at 47). 

 

16 The drug screen tests for the presence of drugs approximately ten substances, including cocaine, 

marijuana, opiates, oxycodone, PCP, amphetamines, barbiturates, benzodiazepine, methadone and 

methamphetamines. If the urine specimen submitted tests positive, it is then sent to a laboratory for further 

testing. (Tr. Vol. 5 at 49). 

17 Alcohol testing is performed by the toxicology lab, presumably at the Memphis office of the Tennessee 

Board of Probation and Parole. (Tr. Vol. 5 at 50). 

33 
3. Demonstration of Significant Course Change 

Since the revocation of his license, Respondent has, indeed, embarked upon a 

significant change of course in his life. Respondent now admits he is an alcoholic and 

recognizes that alcoholism is a disease that requires a great deal of diligence to maintain 

sobriety. Respondent sought, and continues to seek, recovery resources available to him. 

He has become an active member of an AA group and has formed a supportive social 

network as a result. 

Testimony by nearly all of Respondent’s witnesses’ reveals a consensus that 

Respondent’s mental condition has significantly improved over the year. Respondent’s 

social worker testified that at their initial meeting, Respondent displayed a tearful and 

depressed affect and was distraught over the death of his wife and the revocation of his 

license. (Tr. Vol. 3 at 106-107). At the time of the hearing, Respondent had met with 

McAnally approximately thirteen times. (Tr. Vol. 5 at 40). McAnally testified he has 

“see[n] a big improvement on the third session and it’s continued until the last session.” 

(Tr. Vol. 3 at 107; Tr. Vol. 5 at 40) (testifying Respondent’s mood and affect have 

improved throughout treatment). McAnally described Respondent’s new attitude as 

“energetic” and “very compliant.” (Tr. Vol. 3 at 108). At the February 23, 2010, hearing, 

Don Hall, a member of Respondent’s AA group, testified that since attending the 

meetings “[Respondent’s] conversation has been more positive and . . . [believes] he’s on 

a good track personally.” (Id. at 35). More recently, Hall described Respondent as having 

“blossomed out” in their AA meetings. Captain Kenway Hurst (Hurst), a fellow Canal 

Barge Company employee, testified telephonically at the February 23, 2010, hearing that 

he has a “pretty close-knit relationship” with Respondent and speaks via telephone with 

34 
Respondent “seven, eight times a month, at least.” (Id. at 201; 202). Hurst further 

testified that before Respondent began attending AA meetings that “he was real . . . down 

and out.” (Id. at 203). However, Hurst described that once Respondent began attending 

AA meetings that “his character, his persona took a dramatic change for the good.” (Id.). 

Unfortunately, Hurst was not called to testify at the July 1, 2010, hearing; the two 

captains who were called to testify did not indicate they were as personally acquainted 

with Respondent as Hurst. However, both captains testified they had never witnessed 

Respondent consume alcohol and that they believed him to be a dependable and wellskilled mariner. (Tr. Vol. 5 at 85, 101-102). Both captains denied having any concerns 

that Respondent might endanger life or property while on the job. (Id. at 85, 102). 

 Captain Paul Barnes (Barnes), Port Captain for Canal Barge Company, testified at 

the February 23, 2010, hearing that, like Hurst, he too has observed “quite a dramatic 

change in [Respondent],” since Respondent started attending AA meetings. (Tr. Vol. 3 at 

60). Barnes reiterated that Respondent “don’t seem like the same person. He’s a totally 

different person. He seems happier in his life.” (Tr. Vol. 5 at 109). Barnes testified he 

speaks with Respondent on a weekly basis. (Id.). Barnes further testified that 

Respondent is a reliable employee suitable for employment as a pilot as Respondent 

explained that Respondent has “never give me any reason to doubt his ability to safely 

navigate a vessel.” (Id. at 109-110). When questioned about Respondent’s sobriety, 

Barnes stated he has no concerns and “would trust my grandkids with him today.” (Id. at 

110). 

As noted during the course of the February 23, 2010, hearing, (Tr. Vol. 3 at 253), 

the court would again note that Respondent’s physical condition has undergone a 

35 
dramatic change since the April 27, 2009, hearing. Respondent’s change in appearance is 

further indication of positive changes he has made thus far; Respondent’s testimony 

supports that he has continued to make significant and positive changes. 

Respondent testified that he has been sober for two years; an admirable 

accomplishment. (Tr. Vol. 5 at 132). Respondent, with the assistance of his sponsor, has 

completed three of the twelve steps of AA. Respondent is presently working of the 

fourth step, “the inventory.” Respondent testified he is “working at [his] own pace 

because . . . defects in character and stuff that’s happened to you, it takes a while to get 

over that.” (Id. at 133). Respondent is in the midst of taking his inventory and writing it 

down, but is “not through with it. . . . Making - -taking inventory of yourself, it takes a 

while.” (Id.). Respondent’s involvement in AA has been pivotal to his change in course, 

as shown by his testimony wherein he stated, “I don’t want to go back to the way that I 

was.” (Id. at 135). Respondent enjoys attending the meetings, socializing with fellow 

AA members and developing friendships that foster his sober lifestyle. (Id. at 136). Upon 

inquiry by the court, Respondent explained why it has taken him nearly a year to 

complete three steps and to begin work on the fourth step. Respondent reiterated that he 

wanted to carefully select his sponsor. (Id. at 141). In addition to carefully choosing a 

sponsor, Respondent has devoted time to reading texts recommended by his sponsor 

including, “Living Sober,” “12 Steps, 12 Traditions,” and the AA “Big Book.” 

 Respondent’s statement that “I have one over there in the motel room I bring with 

me and I read it” is evidence of his intent to live a life of sobriety. (Id. at 141-142). 

Respondent further testified that it is his goal to make amends with his deceased spouse’s 

children who reside in the nearby city of Savannah, Tennessee. (Id. at 142-143). 

36 
Respondent explained that while he and the younger child, who is approximately 19 years 

old, “get along,” the eldest child, who is approximately 20 years old, will not speak to 

Respondent. (Id. at 143). Respondent hopes that eventually they will “both accept me 

and [] know it was an accident. . . And I hope to feel free that they can come see me.” 

(Id.). 

That Respondent is only now addressing the needs of his deceased spouse’s 

children is an indication that Respondent is still early in his recovery. 

The court takes official notice of the well-publicized “Twelve Step” program 

synonymous with Alcoholics Anonymous and takes particular note of the significance 

that Respondent is only now embarking on Step 4.18 The next five Steps19 thereafter are 

of particular import to Respondent vis à vis and this inquiry and to his fitness for sea 

duty. Respondent has clearly undertaken observable and quantifiable steps toward 

sobriety and rehabilitation. In this regard, he and his employer are to be lauded. No 

doubt, Respondent’s many supporters would endorse his immediate return to sea service, 

but those opinions are subjective and understandably biased. 

It is the difficult judgment of this court that Respondent has not yet arrived at a 

personal, medical compass heading that ensures confidence that he will remain sober and 

safe at sea. The court is cognizant that Respondent has followed every directive and 

 

18 Step 4 states “Made a searching and fearless moral inventory of ourselves.” Alcoholics Anonymous, 

“The Twelve Steps of Alcoholics Anonymous” available at http://www.aa.org/lang/en/en_pdfs/smf121_en.pdf. 19 Steps 5 through 9 are as follows: 

5. Admitted to God, to ourselves, and to another human being the exact nature 

 of our wrongs. 

6. Were entirely ready to have God remove all these defects of character. 

7. Humbly asked Him to remove our shortcomings. 

8. Made a list of all persons we had harmed, and became willing to make 

 amends to them all. 

9. Made direct amends to such people wherever possible, except when to do 

 so would injure them or others. 

(Id.). 

37 
order issued to him by this court. The court is cognizant he has made good-faith efforts 

to turn his life around; but he is not “there” yet. Alcoholism is an insidious disease. 

Relapses are common and to be expected—no matter how hard one tries—especially in 

the early stages of recovery. It is foreseeable that as Respondent undertakes Steps 4 

through 9, he may suffer a relapse. While this court wishes him well, the risks to safety 

at sea are, at present, too great. The day may very well come when he will be a safe 

mariner, but as Respondent’s AA sponsor correctly observed, “[Y]ou know, we didn’t get 

drunk overnight, we’re not going to get sober overnight. . . . It takes a period of 

reconstruction of character-building in order to become better.” (Tr. Vol. 5 at 70). 

Inasmuch as Respondent is only now embracing the crucial portions of the 

Twelve Step Program, the court cannot pronounce him presently a safe and suitable 

mariner. 

VI. ULTIMATE FINDINGS OF FACT 

1. Respondent and the subject matter of this hearing are properly within the 

jurisdiction vested in the Coast Guard under 46 U.S.C. §7703 (2); 46 C.F.R. 

Parts 5 and 10; 33 C.F.R. Part 20; and the APA as codified at 5 U.S.C. §§551-

59.

2. Prior to May 29, 2009, Respondent, Johnny Oce Conner, was the holder of 

Coast Guard-issued Merchant Mariner’s License.

3. Respondent was convicted on or about March 24, 2008, in the 

Criminal/Circuit Court of Hardin County, Tennessee, on a Felony charge of 

Manslaughter. 

4. On April 16, 2009, this court found that the Coast Guard PROVED by a 

preponderance of reliable, probative, and credible evidence that Respondent 

was convicted of an alcohol-related manslaughter by an appropriate criminal 

court. 

5. On May 29, 2009, this court found that the Coast Guard PROVED by a 

preponderance of reliable, probative, and credible evidence that Respondent 

was convicted of an offense that could prevent the issuance or renewal of a 

38 
license or merchant mariner’s document under 46 U.S.C. §7703(2). 

6. Respondent DID NOT PROVE his present suitability for maritime service. 

VII. AUTHORITY TO IMPOSE SANCTION 

It is the nature of suspension and revocation proceedings to “promote, foster, and 

maintain the safety of life and property at sea.” 46 U.S.C. 7701(a); Appeal Decision No. 

2294 (TITTONIS) (1983). For the reasons discussed supra, the court DENIES

Respondent’s Motion that the Order of Revocation issued May 29, 2009, be rescinded, 

revised or otherwise modified. 

VIII. ORDER 

IT IS HEREBY ORDRERED, that the Coast Guard’s Motion of Objection, to 

the extent it seeks relief, is DENIED. 

IT IS FURTHER ORDERED, that Respondent’s Motion to Rescind the court’s 

Order of Revocation issued May 29, 2009, is DENIED. The Order of Revocation issued 

on May 29, 2009, remains in full force and effect. 

PLEASE TAKE NOTICE, that service of this Decision on the parties and/or 

parties’ representative(s) serves as notice of appeal rights set forth in 33 C.F.R. 

§§20.1001 – 20.1004. (Attachment B). 

IT IS SO ORDERED. 

Done and Dated this the 3d day of August, 2010, 

at New Orleans, Louisiana. 

HONORABLE BRUCE TUCKER SMITH 

 ADMINISTRATIVE LAW JUDGE

 

39 
IX. CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing ORDER upon the 

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

proceeding via email: 

LCDR Melissa Harper 

USCG, District 8 Legal 

500 Poydras Street, #1311 

New Orleans, LA 70130 

Telephone: (504) 671-2033 

Facsimile: (504) 671-2040 

Email:melissa.j.harper@uscg.mil

Commanding Officer, USCG Sector 

Lower Mississippi River 

Investigations Department 

Attn: CWO4 Jo N. Wildman, IO 

2 Auction Avenue 

Memphis, TN 38105 

Telephone: (901) 521-4846 

Facsimile: (901) 544-3537 

Email: jo.n.wildman@uscg.mil 

Stacy Seicshnaydre, Esq. 

M. Lucia Blacksher, Esq. 

James Flinn, Student Attorney 

Michael Hartnett, Student Attorney 

Tulane Civil Litigation Clinic 

Weinmann Hall, Room 130-S 

6329 Freret Street 

New Orleans, LA 70118 

Telephone: (504) 862-8892 

Facsimile: (504) 862-8753 

Email: sseicshn@tulane.edu; 

lblacksh@tulane.edu; 

jflinn@tulane.edu; 

mhartnet@tulane.edu 

ALJ Docketing Center 

U.S. Coast Guard 

40 S. Gay Street, Rm. 412 

Baltimore, MD 21202 

Telephone: (410) 962-7434 

Facsimile: (410) 962-1746 

Email: aljdocket@aljbalt.uscg.mil 

Done and dated this the 3d day of August, 2010, 

at New Orleans, Louisiana. 

KATY J.L. DUKE, ESQ. 

 ATTORNEY-ADVISOR

40 
X. ATTACHMENT A: WITNESS & EXHIBIT LIST 

Respondent Witnesses 

1. Tony McAnally, LCSW20

2. Andrew Bradford21

3. Don C. Hall22

4. George Payne23 

5. Captain James Markland Hardy24 

6. Captain Luther Cleveland Ward25

7. Captain Paul Barnes

8. Thomas William Smith 

9. Johnny Oce Connor 

Respondent Exhibits

A. Results of Drug Tests (21 pages) 

B. Respondent’s self-maintained log of AA attendance (4 pages) 

U.S. Coast Guard Witnesses 

None 

U.S. Coast Guard Exhibits

None offered 

 

20 Testimony proffered telephonically. 

21 Testimony proffered telephonically. 

22 Testimony proffered telephonically. 

23 Testimony proffered telephonically. 

24 Testimony proffered telephonically. 

25 Testimony proffered telephonically. 

41 
XI. ATTACHMENT B: NOTICE OF ADMINISTRATIVE 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: 

(1) 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, -- 

(1) 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 CFR 7.45. 

33 CFR 20.1003 Procedures for appeal. 

(a) Each party appealing the ALJ’s decision or ruling shall file an appellate brief 

with the Commandant at the following address: U.S. Coast Guard Administrative 

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 

every 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 the 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. 

42 
43 

(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 writing; 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.