UNITED STATES OF AMERICA - 

*., ..' c ~, 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

- rC( 

VS. 

JAMES MICHAEL ELSIK 

Respondent. 

Docket Number: CG S&R 04-0501 

CG Case No. 2078778 

Order Ruling on Respondent's 

Motion to Dismiss 

Issued: April 6,2005 

Issued bv: Jeffie J. Massev. Administrative Law Judge 

GENERALBACKGROUND 

This administrative proceeding was initiated on September 20, 2004, when the 

United States Coast Guard ("USCG herein) filed a Complaint seeking the suspension of 

certain documents issued to Respondent James Michael Elsik, based on alleged acts of 

misconduct which allegedly occurred on and after May 10,2004, while Respondent was 

serving as Master of the UTV JOHN G. MORGAN. After receiving an extension, 
Respondent filed an Answer and a Request for Change of Venue on November 23,2004. 

The Respondent denied the factual allegations, and pled two affirmative defenses. 

The original Complaint was filed pursuant to the statutory authority contained in 

46 USC $7703 and the regulatory authority contained in 46 CFR 55.27 (Misconduct). 

Specifically, the Complaint alleged that the Respondent was operating as the Master of 

the UTV JOHN G. MORGAN on May 10,2004 "when it allided with the Army Corps of 

Engineers Barge CE 869." The Complaint further alleged that the Respondent "did not 

make any notifications to Bayou Tugs Inc.' or the Coast Guard concerning the allision." 

As an apparent second allegation of misconduct, another paragraph of the first Count of 

the Complaint alleged that the Respondent, during the "subsequent investigation" stated 

"to the effect" that he had no knowledge of the allision "whereas Respondent did have 

knowledge of the allision." A sanction of six months suspension was proposed in the 

original Complaint. 

On December 20,2004, a telephonic Pre-Hearing Conference was conducted. 

During that conference, a number of procedural issues were addressed. In addition, the 

undersigned questioned the USCG as to how it proposed to get into evidence any 

statements made by the Respondent during the Marine Casualty Investigation conducted 

by the USCG, in view of the provisions of 46 CFR §5.101(b).~ It was suggested that an 

' It appears from the record that Bayou Tugs, Inc. was the employer of the Respondent on 

May 10,2004. 

46 CFR $5. IOl(b) provides: "In order to promote full disclosure and facilitate 

determinations as to the cause of marine casualties. no admission made bv . a verson 

A 

during an investigation under this part or part 4 of this title may be used against that 

person in a proceeding under this part, except for impeachment." Part 4 of Title 46 is 

entitled "~arine ~asualt~ Investigations." 
Amended Complaint would be in order. The USCG indicated that it would amend its 

Complaint on or before January 4,2005. 

An Amended Complaint was, in fact, filed on December 30, 2004. This 

Complaint invoked the statutory authority of 46 USC $7703(b) and the regulatory 

authority of 46 CFR 35.27 (Miswnduct) and $5.29 (Negligence). Two separate 

allegations of Misconduct were alleged--each was materially different from the 

allegations in the original Complaint. Added to the charges was an allegation of 

Negligence. 

Quickly following the filing of the Amended Complaint, the Respondent filed an 

Amended Answer, a Motion for Interrogatories, a Motion for Continuance (of the 

February 3,2005 hearing date previously established), and a Motion to Dismiss (Counts 

2 & 3 of the Amended Complaint). (All filed on or about January 3,2005.) 

On January 6,2005, the undersigned issued an Orda (1) granting the Motion for 

Continuance (and soliciting input from the parties for the establishment of a new hearing 

date), (2) allowing service of the Interrogatories, (3) establishing a briefing schedule for 

Memorandums of Law in support of and in opposition to the Motion to Dismiss; and, (4) 

requiring the parties to brief an additional issue concerning the applicability of the 5" 

Amendment privilege against self-incrimination to Marine Casualty ~nvesti~ations.~ 

The Respondent's Motion to Dismiss (and subsequent Memorandum of Law in 

Support of the Motion to Dismiss) presented arguments in favor of dismissal (with 

' The USCG has vigorously criticized the undersigned for acting so swiftly on the 

Respondent's Motion for Continuance and Motion for Interrogatories. Ironically, at the 

same time, the USCG has complained that this proceeding was not moved along in a 

suitably expeditious manner by the undersigned. 
prejudice) of both Misconduct allegations contained in the Amended Complaint. In 

addition, the Respondent argued that the 5" Amendment privilege against selfincrimination (and its Miranda doctrine) was applicable to custodial interrogations that 

took place during the course of a Marine Casualty Investigation by USCG officials. The 

USCG's Memorandum of Law argued positions opposite to those of the Respondent. 

Their respective arguments will be summarized below, to the extent necessary for an 

explanation of the conclusions reached in this Order. 

SPECIFIC BACKGROUND 

In advance of the issuance of this Order, I have carefully reviewed the 

Respondent's arguments in support of his Motion to Dismiss and the USCG's counter 

arguments in the context of the entire record of this proceeding. I have carefully 

reviewed and considered every legal authority cited by the parties, as well as every legal 

authority that I could discover that related to those authorities cited by the parties. I have 

carefully reviewed and considered the provisions of Subtitle I1 (Vessels and Seamen) of 

Title 46 (Shipping) United States Code4, Part 4 of 46 CFR (Marine Casualties and 

Investigations), 46 USC §7703(b), 46 CFR $5.27 (Misconduct), 46 CFR §5.101(b), 18 

USC $1001, and 46 USC $2303. I have specifically reviewed the provisions of the 

Marine Safety Manual as they pertain to Marine Casualty Investigations (Chapter 3) and 

Personnel Investigations - Procedures Against Licenses and Documents (Chapter 2). 

With special consideration and review given to the provisions of Part D (Marine 

Casualties), Chapter 61 (Reporting Marine Casualties). 
The arguments presented by the parties have been creative and, with respect to the 

Respondent's arguments, persuasive.5 My consideration of these issues has taken 

considerable time. I found it necessary to take the unusual step of convening 'an inperson conference to discuss the issues raised by the Motion to Dismiss and the 

Respondent's Motion for Sanctions. This conference, held on the record in Houma, 

Louisiana on Maxh 22,2005, resulted in the clarification and amplification of issues and 

arguments relative to the Motion to Dismiss and the Motion for ~anctions.~ 

Because of the very large amount of information that I have considered in 

reaching the conclusions outlined in this Order, I do not find it feasible to attempt to 

discuss every nuance of the issues at hand in this Order. On reflection, I decided that a 

hyper-detailed presentation would not enhance the reader's understanding of my rulings 

or the arguments presented by the parties. Accordingly, in this document, I have 

endeavored to present the essentials of the arguments and the essentials of facts and 

authorities that impact the conclusions I reach herein. 

It should be noted that this Order disposes of only two of the three counts in the 

Amended Complaint. The allegation of Negligence remains intact, so far as this 

document is concerned. Further, I do not find it necessary to discuss or decide the issue 

of application of the 5" Amendment to the Constitution to Marine Safety Investigations. 

I will say only that if I had not decided to dismiss with prejudice the second allegation of 

' Respondent has been ably represented by an attorney. The Investigating Officers have 

done an admirable job dealing with difficult legal issues. Apparently, they sought the 

assistance of an attorney (from the DS Legal Staff), which, under the circumstances of 

this case seemed appropriate. 

Filed by the Respondent after the USCG refused to substantively respond to 

Interrogatories I authorized for service. 
Misconduct contained in the Amended Complaint, I would have, at the appropriate point 

in time, conducted a hearing specifically designed to elicit testimony about the 

questioning of the Respondent by USCG officials so as to be able to determine the fact 

question of whether or not a "custodial interrogation" took place during the Marine 

Casualty Investigation of the alleged events of May 10, 2004. 1 also do not find it 

necessary to discuss or decide in this Order the issue of whether the USCG is prohibited, 

per the provisions of 46 CFR $5.101@), from relying on statements made by the 

Respondent during the course of the Marine Casualty Investigation (The statements 

which form the basis of the allegations in the second Misconduct allegation.) 

DISCUSSION 

STATUTORY AUTHORITY OF AMENDED COMPLAINT 

The Amended Complaint invokes the statutory authority of 46 USC 57703(b17 

which provides: 

A license, certificate of registry, or merchant 

mariner's document issued by the Secretary may be 

suspended or revoked if the holder - * * * 

(B) has committed an act of incompetence, 

misconduct, or negligence; . . . 

The original Complaint invoked the statutory authority of "46 USC 7703." I note that 

$7703 actually contains four different "options" or different bases for suspending or 

revoking a USCG issued credential. I believe the identification of a sub-paragraph is the 

appropriate way to identify statutory authority for a complaint. Where appropriate, the 

'The technically correct cite would he to "46 USC $7703(1)(B)." 
USCG could even designate more than one sub-paragraph as authority for the 

proceeding 

On its face, it seems appropriate that, in this proceeding, the Amended Complaint 

invokes only the authority of sub-paragraph (l)(B), because that is where the authority 

for charging misconduct violations is contained. Misconduct is defined as follows: 

Misconduct is human behavior which violates some formal, 

duly established rule. Such rules are found in, among other 

places, statutes, regulations, the common law, the general 

maritime law, a ship's regulation or order, or shipping 

articles and similar sources. It is an act which is forbidden 

or a failure to do that which is required.' 

I find it necessary to point out the change in statutory authority that occurred 

between the original Complaint and the Amended Complaint for two reasons: First, at 

the in-person conference, Respondent's counsel made a point of this change in support of 

his arguments in his Motion to Dismiss. Second, in its Memorandum in opposition to the 

Motion to Dismiss, the USCG cites not to $7703(1)(B), but to $7703 (l)(A) in support of 

its arguments, as if the original Complaint was still in place in this proceeding,9 

With respect to the Amended Complaint--the charging document that is now 

before me-the provisions of $7703(1)(A) are not available to the USCG as support for its 

arguments in opposition to the Motion to Dismiss. The distinction between the 

authorities granted via (])(A) and (l)(B) is an important one. If the Amended Complaint 

invoked the authority of $7703(1)(A), then the USCG would be entitled to argue that the 

decision to charge the Respondent with violations of criminal statutes was authorized 

' 46 CFR $5.27. 

At page 4. 
under the theory that the Respondent had violated a "law or regulation intended to 

promote marine safety or to protect navigable waters . . ." In fact, this was the argument 

advanced during the in-person conference and in the USCG's Memorandum of Law filed 

in opposition to the Motion to Dismiss. With the change in Statutory Authority to (l)(B), 

this argument is no longer available to the USCG. 

Lest the USCG decide that they should argue, on appeal of this Order to the 

Commandant, that they should now he allowed to amend the Amended Complaint to 

expand the statutory authority relied on to include $7703(1)(A), let me digress from the 

real issues at hand long enough to say their argument would still fail. Although they have 

been given ample opportunity to identify controlling authority to support their argument 

that 18 USC $1001 andlor 46 USC $2303 are laws "intended to promote marine safety or 

to protect navigable waters", they have failed to do so." As will be discussed fully 

below, I am not of the opinion that allegations of criminal conduct belong in a 

Suspension & Revocation ("S&R" herein) proceeding, which by law, is purely a remedial 

proceeding "and not penal in nature." See 46 CFR $5.5, "Purpose of Administrative 

Actions." 

THE FIRST MISCONDUCT ALLEGATION 

Turning to the second count in the Amended Complaint-the first Misconduct 

allegation-the essence of the allegation is that while acting as the Master of the UTV 

JOHN G. MORGAN, the Respondent allided with a barge, which constituted a "Marine 

'O For the reasons discussed infra, the decision in BENNETT (Appeal Decision 2610 

(1999)) does not accomplish this objective. Nowhere in BENNETT is it held that $1 001 

is a law intended to promote marine safety or to protect navigable waters. 
Casualty" (as defined in 46 CFR 84.03-l(b)); then, the Respondent failed to render 

necessary assistance or provide identifying information to the barge involved in the 

allision, as required by 46 USC §2303(a). 46 USC 52303 (a) & @) provides as follows: 

(a) The master or individual in charge of a vessel 

involved in a marine casualty shall - 

(1) render necessary assistance to each individual 

affected to save that affected individual from danger caused 

by the marine casualty, so far as the master or individual in 

charge can do so without serious danger to the master's or 

individual's vessel or to individuals on board; and 

(2) give the master's or individual's name and 

address and identification of the vessel to the master or 

individual in charge of any other vessel involved in the 

casualty, to any individual injured, and to the owner of any 

property damaged. 

(b) An individual violating this section or a 

regulation prescribed under this section shall be fined not 

more than $1,000 or imprisoned for not more than 2 years. 

The vessel also is liable in rem to the United States 

Government for the fine." 

The Respondent argues that, because §2303(b) provides a criminal penalty for 

violation of $2303(a), an Administrative Law Judge ("ALP herein) does not have the 

authority or jurisdiction to enforce this statute because S&R proceedings are "remedial" 

and not "penal" in nature. (Per the previously cited 46 CFR $5.5.) In further support if 

th . his argument, Respondent cites to Bulger v. Benson, 262 F. 929 (9 Cn. 1920). 

The underlying facts of Bulger v. Benson are somewhat analogous to the facts at 

hand. Those underlying facts involved a government entity charging a violation of a law 

which provided a specific penalty against a "licensed officer of steam vessels." Once it 

was decided that a violation of law had occurred, the government entity then suspended 

" Subsection (c) of this provision is not relevant to the discussion here, so it has been 

omitted. 
the license of the officer-a punishment which was not provided for by the law alleged to 

have been violated. (That law provided only for the assessment of a monetary fine.) 

Because the "violated law" did not provide for a suspension of the licensee's document, 

the Court held that the government entity had exceeded their authority 

So far as I can tell, the Court's decision in Bulger v. Benson has never been 

discredited or overturned by a court of competent jurisdiction. In an attempt to discredit 

the validity of Bulger, the USCG has cited to a Commandant Decision on Appeal 

(STEPKINS (Appeal No. 1574 (1966)), for the proposition that Bulger has "no vitality." 

I have read the opinion in STEPKINS several times. With all due respect, I find it 

to be peculiar. The most troubling aspect of the opinion is the fact that the Commandant 

concludes that the opinion in Bulger "has no vitality" because the Commandant construes 

the opinion of the Court of Appeals in such a way as to sua sponte void the conclusions 

reached therein. In other words, it appears that the Commandant decided to ignore the 

specific rulings of the Court of Appeals in Bulger because he believed the Court was 

I brought up this issue at the in-person conference, and asked the USCG to 

provide me with any authority they could find that would allow me to follow the 

Commandant's lead in STEPKINS, and disregard a Court of Appeals decision. In its 

post-conference submission, the USCG refbed to do so, stating: 

The Coast Guard will respectfully not provide such 

an analysis on whether the Commandant has the authority 

The Commandant's exact language is: "In such construction I could assert very simply 

that the Court of Appeals in 1920 was wrong in stating that when a statute provides a 

monetary penalty for its breach, and does not mention suspension of a license as a result, 

no action to suspend the license may be taken." 
to disregard a federal court decision, as it is not an issue 

relevant to adjudicating the ~om~laint.'~ 

That response rivals the STEPKINS decision in its creativity-the USCG cites to a case 

as support for a legal argument it is advancing then argues that the validity of that 

decision is not relevant. I find that logic to be as peculiar as that in the STEPKINS 

decision. 

As a licensed lawyer (an "officer of the court") and an ALJ, I don't share the 

same freedoms as, apparently, the Commandant enjoyed in 1966. 1 am not free to discard 

the clear ruling of a Court of Appeals. I decline to so discard Bulger v. Benson now. 

Separate and apart from Bulger, there are numerous statutory/regulatory 

proceedings which govern Marine Casualty Investigations and S&R proceedings which 

consistently require a separation of functions, all designed to prevent Marine Casualty 

Investigations and S&R proceedings from becoming a forum where blame is fixed or 

criminal conduct is assessed. First, as cited above, 46 CFR 55.5 identifies S&R 

procedures as remedial "and not penal in nature." Consistent with this philosophy, 

consider 46 CFR $~.569'~: 

Evidence of criminal liability discovered during an 

investigation or hearing conducted pursuant to this part will 

be referred to the Attorney General's local representative or 

other appropriate law enforcement authority having 

jurisdiction over the matter. 

Further, consider the provisions of 46 CFR $4.07-l(b): 

l3 At page 5. 

l4 Contained in Part 5 "Marine Investigations Regulations-Personnel Action", Subpart C 

(Statement of Policy and Interpretation). The same Part that contains the definition of 

Misconduct. 
The investigations of marine casualties and accidents and 

the determinations made are for the purpose of taking 

appropriate measures for promoting safety of life and 

property at sea, and are not intended to fix civil or 

criminal responsibility. [emphasis supplied] 

Also see 46 CFR $4.23-1 : 

If as a result of any investigation or other proceeding 

conducted hereunder, evidence of criminal liability on the 

part of any licensed officer or certificated person or any 

other person is found, such evidence shall be referred to the 

U.S. Attomey General. [emphasis supplied] 

These last two sections are contained in Part 4 (Marine Casualty Investigations) of 46 

CFR. The plain language of these provisions compel me to conclude that allegations of 

Misconduct that are based on an alleged violation of 46 USC $2303 have no place in a 

S&R proceeding. In fact, how can I avoid concluding that the "duly established rule[s]" 

referred to in the Misconduct definition do NOT include criminal laws when $5.69 

specifically requires that "evidence of criminal liability discovered during an 

investigation or hearing conducfedpursuant to this part" must be referred to another 

entity "having jurisdiction over the matter." To read the definition of Misconduct as 

embracing criminal statutes within the meaning of "duly established rule[s]" would be to 

render $5.69 completely meaningless and superfluous 

The USCG suggests that the logic of BENNETT somehow expands beyond itself 

so as to authorize the USCG to charge a Respondent with Misconduct anytime the USCG 

believes a Respondent's actions have violated a criminal statute-any criminal statute-- 

but in this case, especially 46 USC 52303. 
In the BENNETT case, the Appellant was charged with Misconduct because he 

sent in a fraudulent sea time letter in support of an application for an increase in grade on 

an existing USCG issued credential. The Appellant challenged the ALJ's finding that 

submission of a fraudulent sea time letter was "human behavior which violates some 

formal, duly established rule." The Commandant affirmed the ALJ's cite to 18 USC 

$1001, and without explanation, stated that this statute was an appropriate source of a 

"formal duly established rule." This decision does not reconcile its rationale with the 

regulations I have cited above, any and all of which call into question the validity of the 

use of a criminal statute as a basis for an act of Misconduct. 

To support the conclusion that the charge of Misconduct was applicable to the 

Appellant's case, the Commandant noted that "In submitting a license application to the 

Coast Guard, Appellant was required to submit true and accurate information [per the 

instructions on the application itselfl." Because the Appellant failed to do that which was 

required of him, the Commandant found that a charge of Misconduct was appropriate. 

This fact that a license application requires, on its face, the submission of truthful 

information appears to he the salient fact in this case-the fact that bridges a remedial 

proceeding (S&R action) to a criminal statute. 

In this proceeding, the USCG relies exclusively on the BENNETT case as support 

for its bid to expand the use of criminal statutes in Misconduct cases. The USCG argues 

that, because the Commandant found that use of 18 USC $1001 was appropriate under 

the facts of that case, the use of a separate and distinct criminal statute in this proceeding 

as a basis for a Misconduct charge is also authorized. 
Despite the USCG's arguments to the contrary, I have concluded that BENNETT 

is a unique event-not the tip of an iceberg, as argued by the USCG. I have reached this 

conclusion because the logic of BENNEV flies in the face of the statutes and regulations 

I have cited herein-a contradiction that the USCG has not even attempted to explain, 

and possibly rehes to recognize. Significantly, the BENNETT decision does not 

mention the statutes that I have cited, above. Indeed, the BENNETT decision does not 

even acknowledge their existence. To expand BENNETT as suggested by the USCG in 

this proceeding, I would have to conclude that the regulations which provide for the 

separation of evidence of criminal conduct from a remedial proceeding, such as a S&R 

proceeding, were superfluous and meaningless. I am not willing to relegate those statutes 

to an obsolete status. 

Besides the authorities cited above, which specifically identify S&R proceedings 

as remedial (not penal) and direct that evidence of suspected criminal activity be referred 

to the Department of Justice, the statutory source of these regulations Mer buttress my 

conclusion as to the impropriety of attempting to use $2303 as a charging statute in a 

S&R proceeding. Specifically, I am refemng to 46 USC $6301, "Investigation of Marine 

Casualties." 

This statute authorizes the USCG to prescribe regulations for the investigation of 

Marine Casualties, so as to determine (1) the cause of the casualty; (2) whether 

misconduct, incompetence, negligence, unskillfulness, or willful violation of law by a 

licensed individual contributed to the casualty, "so that appropriate renzediul action 

under Chapter 77 ofthis title may be taken [emphasis added]; (3) whether any similar act 

committed by a member of the USCG contributed to the casualty; (4) whether there is 
evidence of an act which submits the actor to a civil penalty under the laws of the United 

State, so that appropriate action may be undertaken to collect the penalty; (5) "whether 

there is evidence that a criminal act under the laws of the Un~ted States has been 

committed, so that the matter may be referred to appropriate authorities for prosecution 

[emphasis suppliedJ"; and (6) whether new laws or regulations are needed or existing 

laws or regulations need to be repealed, to prevent the recurrence of the casualty. 

The regulatory scheme applicable to the investigation of marine casualties clearly 

separates (I) evidence of conduct to be dealt with through remedial action from (2) 

evidence of criminal conduct, which is to be referred to an authority outside of the USCG 

for prosecution. The difference in the two is basic: one system is for actions against 

documents (S&R proceedings) and the other system is for actions against individuals 

(criminal prosecutions). 

In this proceeding, the only way that I could conclude, after a hearing on the 

merits, that the second count of the Amended Complaint had been proven, would be to 

determine whether the Respondent failed to render necessary assistance or provide 

identifying information "as required by 46 USC §2303(a). [emphasis suppliedy In 

other words, to render a decision that was in favor of the USCG on this count, I would 

have to step into the shoes of a criminal court judge to determine if the evidence satisfied 

the evidence that was required by §2303(a). 

I am authorized to preside over S&R proceedings-proceedings which are only 

remedial in nature. What authority do I have to make determinations on issues of penal 

responsibility? Clearly, per the statutory scheme that is in place, such matters are to be 

referred to another authority for determination. 
THE SECOND MISCONDUCT ALLEGATION 

Turning to the last count of the Amended Complaint-the second Misconduct 

charge, the essence of the allegation is that during the USCG's investigation of the 

alleged allision, the Respondent (1) stated he had no knowledge of the allision; (2) stated 

"to the effect that he had no knowledge of the allision whereas the Respondent did have 

knowledge of the allision. This is a violation of 18 USC $ 1001, as the Respondent made 

statements containing false information, including both written statements on a CG-2692 

and verbal statements to the Investigating Officer on-scene." 

Stated another way, the USCG alleges that the Respondent violated $1001 when 

he denied, on a CG-2692 and orally, that he had no knowledge of the allision. 

Respondent's initial challenge to this count of the Amended Complaint is based on the 

fact that S&R proceedings are remedial, and not penal in nature. The Respondent then 

argues: 

Clearly, 18 U.S.C. $1001 is a criminal statute 

because it is a federal law which was enacted by Congress 

defining and setting forth punishment for specific conduct. 

Accordingly, since this proceeding is not criminal in nature, 

hut rather is remedial, it logically follows that the AW does 

not have jurisdiction under 46 U.S.C. $7703 to decide 

whether that criminal statute was violated by Mr. Elsik. 

Respondent then goes on to argue that there is no authority for me to change my 

role from an adjudicator within the Executive Branch to a legislator within the 

Legislative Branch by possibly suspending the Respondent's credentials (if I found a 

violation of $1001) instead of imposing a fine or imprisonment, which Congress required 

as a result of a violation of $1001 by using the word "shall" in the statute. 
The logic of this argument makes sense to me. But more important than its logic, 

is the fact that this argument is consistent with the regulatory scheme that operates as a 

separation of functions (S&R proceedings for remedial actions; referral to other 

authorities for criminal violations) discussed supra. Tbis argument is also supported by 

Bulger, also discussed supra. 

The USCG's sole challenge to this logic is-again-the decision in BENNETT. 

At the in-person conference I challenged the USCG to point out to me the language in 

BENNETT that suggested that $1001 was an appropriate statute to base a charge of 

Misconduct on outside ofafrnudulent application case. Specifically, I challenged the 

USCG to point out to me language in BENNETT that suggested that a false statement on 

a CG-2692 was, under the logic of BENNETT, a valid basis for a Misconduct charge. 

Remember--on an application for a license renewal of upgrade, specific language 

requires the applicant to submit truthful information. (An examination of CG-2692 

reveals that no such caveat is included.) The USCG was unable to point to that language 

in BENNETT at the in-person conference. In their post-conference brief, they argued 

that " . . . the Commandant did not restrict the analysis to [the licensing process] or to the 

false document provided by the Appellant . . . " They added: 

No decision could be found where the Commandant 

directly addressed a situation wherein a mariner had 

provided a false statement to the Coast Guard on a CG2692. However, the Coast Guard asserts that BENNE7T 

stands for the proposition that providing a false statement 

in derogation of 18 USC $ 1001 is chargeable as 

misconduct under 46 CFR $5.27 because it is a violation of 

a "formal duly established rule." 
The above-statement assumes that providing a false statement on a CG-2692 is a 

"derogation" of $1001-that assumption goes to the basic issue here: Is providing a false 

statement on a CG-2692 the legal equivalent of providing a false statement on a license 

application? The USCG has failed to identify any authority which has held that a person 

who provides false information on a CG-2692 violates the general penal provisions of 

$1001. Instead, the USCG bootstraps its conclusion (that a false statement on a CG-2692 

is a violation of $1001) by assuming he truth of the very conclusion that is necessary to 

reach the wnclusion it espouses. Remember, the CG-2692 has no requirement on its face 

(as does the license application) that the person filling out the form is required to provide 

accurate information. l5 

If I were to find in this case that BENNETT authorized the USCG to bring a 

charge of misconduct for an alleged violation of $ 1001, based on a statement contained in 

a CG-2692 (or an oral statement made during the course of a marine casualty 

investigation), I would be blurring the lines between remedial proceedings and penal 

proceedings, and stretching the limits of my jurisdiction in a way that I cannot find is 

authorized under existing statutes, regulations, or judicial authority. I also would be 

extrapolating the finding in BENNETT to facts that were not before the Commandant 

when he issued that opinion. I decline to do either one of those things. 

CONCLUSION 

Based on the record of this proceeding, and after considering all of the arguments 

presented by the parties, and in consideration of the authorities discussed herein, I find 

'' Paragraph 8 in the "Instructions" section of the form states: "This form should be filled 

out as completely and accurately as possible." 
that basing a charge of Misconduct on an allegation that 46 USC §2303(a) has been 

violated is outside the legal (statutorily intended) scope of a S&R proceeding, and thus 

outside of my jurisdiction. I Wer find that basing a charge of Misconduct on an 

allegation that 18 USC 5 1001 has been violated outside the circumstances of a fraudulent 

license application, is outside the legal (statutorily intended) scope of a S&R proceeding, 

and thus outside of my jurisdiction. 

Based on these findings, both of the Misconduct counts contained in the Amended 

Complaint in this proceeding are dismissed with prejudice. 

ORDER 

IT IS HEREBY ORDERED that the second and third counts of the Amended 

Complaint (both Misconduct allegations) are dismissed with prejudice. The count 

alleging Negligence becomes the only viable count in the Amended Complaint. 

Done and dated April 6,2005 

New Orleans, Louisiana 
CERTIFICATE OF SERVICE 

I hereby certify that I have forwarded the attached document to the parties by the 

methods indicated: 

ENS Matthew Spolarich 

U S Coast Guard 

Morgan City MSO 

800 David Drive Room 232 

Morgan City, LA 70380 

(by regular mail) 

J. Mac Morgan 

Attorney At Law 

879 Robert E. Lee Boulevard 

New Orleans, LA 70124 

(by regular mail) 

ALJ Docketing Center 

U.S. Custom House, Room 41 2 

40 S. Gay Street 

Baltimore, MD 21 202 

(by FedEx) 

/ Jeffie J. Massey 

Administrative Law Judge 

Done and Dated on April 6,2005 at 

New Orleans, Louisiana