UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARI)

UNITED STATES OF AMERICA

UNITED STATES COAST GUARD

DECISION OF THE

VICE COMMANDANT

ON APPEAL

Nq 27 27

MERCHANT MARINER CREDENTIAL

Issued to: ROBERT RYAN BOUDREAUX:

APPEARANCES

For the Government:

CWO John Christie, USCG

Coast Guard Sector New Orleans

Ms. Lineka N. Quijano, Esq.

Ms. Jennifer A. Mehaffey, Esg.

U.S. Coast Guard Suspension and Revocation

National Center of Expertise

For Respondent:

Mr. David Kish, Esq.

Administrative Law Judge

Dean C. Metry

This appeal is taken in accordance with 46 U.S.C. Chapter 77,46 CFR Part 5 and 33 CFR

Part2O

On October 18, 2018, an Administrative Law Judge (ALJ) of the United States Coast

Guard issued findings and conclusions from the bench, finding the Coast Guard's Complaint

against the Merchant Mariner Credential of Respondent Robert Ryan Boudreaux proved, and

ordering the suspension of Respondent's credential for 90 days, with a furthei suspension of six

months suspended on nine months probation.

v
BOUDREAUX ño t'l 27

That Coast Guard Complaint alleged misconduct in that Respondent served aboard a

vessel under the authority of his credential from Octob er 25 to November 13 , 2017 , 

in violation

of an ALJ order suspending that credential.

Respondent appeals.

FACTS & PROCEDURAL HISTORY

At all times relevant to these proceedings, Respondent was the holder of a Merchant

Mariner Credential issued by the United States Coast Guard (MMC).

On October 18,2016, the Coast Guard filed a Complaint against Respondent's MMC

alleging that Respondent had committed an act of misconduct by failing to comply with his

marine employer's drug and alcohol policy. See Appeal Decision 2723 (BOUDREAUX Ð (2019)

at 3, 2019 WL 8137712 at 2. That Complaint was assigned Coast Guard ALJ docket number

2016-0332.

The hearing in that matter was convened by ALJ Bruce T. Smith on July 11,2017. At

the conclusion of the hearing, the ALJ retumed Respondent's MMC to his possession, with the

understanding that this allowed Respondent to continue working under the authority of his

credential, pending decision in his case. [Respondent Ex. 3 (CG-ALJ 2016-0332Tr. Vol. II at

226-28).1

On or about July 15, 2017, Respondent signed articles of engagement with Keystone

Marine, and shipped aboard the MA/ SEAKAY SPIRIT as an AB. [Tr. Day III at 5.] The

articles specified that Respondent's service on the SEAKAY SPIRIT would continue for 120

days, and that service was under the authority of his credential. For the relevant time, the

SEAKAY SPIRIT was operating in the coastwise trade, generally between St. James, Louisiana

and Houston, Texas. Generally, no single at-sea leg of the vessel's route was longer than24

hours. [Id ]

2
BOUDREAUX NO. &T r¿';

On October 24,2017, the ALJ issued a decision and order (D&O) in the 2016-0332 case.

[CG Ex. 2.] The D&O found the allegation of misconduct proved, and ordered Respondent's

credential suspended outright for 60 days, effective immediately.

At the time of the D&O's issue, Respondent was employed onboard the SEAKAY

SPIRIT. Not later than October 29,2017, Respondent received notice of the D&O and filed

Notice of Appeal. [Tr. Day III at 5.] Respondent continued to serve on the SEAKAY SPIRIT

for the period of October 25 to November 13, 2017. [Id. at 5-6.] Respondent signed off the

vessel on November 13, as scheduled. lld.l

On March 6,2018, the Coast Guard filed a second Complaint against Respondent's

Merchant Mariner Credential, alleging that Respondent had committed an act of misconduct by

serving on the SEAKAY SPIRIT under the authority of his credential, for the period October 25

to November 13, 2017, in violation of the ALJ's suspension order. That Complaint was assigned

Coast Guard ALJ docket number 2018-007I, and initiated the instant case.

The hearing in the matter was convened by ALJ Dean C. Metry on October 16, 2018. On

October 18, at the conclusion of the hearing and by the parties' consent, the ALJ issued an oral

ruling, finding the allegation of misconduct proved and suspending Respondent's credential for

ninety days outright, to be followed by six months suspended on nine months probation. [Tr.

Day III.I This decision was memorialized by an Order on October 18,2018. Respondent

appealed from that Order on November 12,2018.

In light of Respondent's appeal and Request for Temporary MMC, on Decønber 6,2018,

the ALJ issued an Order Modifuing Bench Decision (Modification Order). That Order provided

that, in lieu of granting Respondent a temporary credential under 46 CFR $ 5.707, the Coast

Guard would return Respondent's existing temporary credential (issued under $ 5.707, following

the earlier case, CG-ALJ 2016-0332) onDecember 18, 2018, sixty days after the sanction of

ninety days suspension was imposed by Order of October 18. Pursuant to the Modification

Order, the final thirty days of the ordered suspension would be oorernitted," to be served by

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BOUDREAUX No.l7 2 7

Respondent only after "administrative exhaustion of all appeals of this decision." [Modification

Order at2.lt

On December 30, 2019,I issued a decision upholding the sanction imposed in

Respondent's prior case, CG-ALJ 2016-0332. Appeal Decísion 2723 (BOUDREAUX I),2019

wL81377t2.

Respondent's timely appeal of the ALJ decision in the second case, CG-ALJ 2018-0071,

is now properly before me.

BASES OF APPEAL

Respondent asserts the following bases of appeal:

The 2017 AIJ's D&O did not become effictive until November 23 2017, so

Respondent's sea service between October 25 and November 13 did not violate

that order.

An AIJ's D&O is not aformal, duly established rule, so violation of such an

order is not mísconduct.

The 2017 D&O was in etor and notfinal agency action, and the AIJ thereþre

erred in consídering it part of Respondent's prior record, þr purposes of

assessing a proper sanction.

OPINION

I.

The 2017 AIJ D&O díd not become effective until November 23, 2017, so Respondent's sea

service, between October 25 and November I3 did not violate that order.

Respondent bases this argument on 33 CFR $ 20.1101(b)'s provision that, as to Coast

Guard suspension and revocation proceedings, "Unless appealed [to the Commandant], an ALJ's

decision becomes final action of the Coast Guard 30 days after the date of its issuance."

[Respondent's Appellate Brief at 8.] Respondent argues that, under this regulation, the D&O of

I The terms of probation were also amended, providing for suspension of the credential for eight months, suspended

on twelve months probation from October 18,2018.

I.

il.

[il.

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BOUDREAUX iNo. 2,7 2 7

October 24,2017, did not become effective and enforceable until thirty days had passed, and

therefore Respondent's sea service between October 29 and November 13 , 2017 

, did not violate

the D&O.

This argument is based upon a misreading of 33 CFR $ 20.1 101. That section defines the

"finality'' of a Coast Guard ALJ order for the specific purpose of establishing when the agency

action is judicially reviewable, under the Administrative Procedure Act (APA). See, e.g.,

Dresser v. Ingolia,307 F. App'x 834, 839-40 (5th Cir. 2009) (examining 33 CFR $ 20.1101 and

holding that a Coast Guard ALJ decision is not'ofinal agency action" while appeal to the

Commandant is pending). Respondent has cited no authority to support his erroneous reading of

$ 20.1101. The immediate effectiveness of ALJ D&Os is supportedby 46 CFR $ 5.567(d)'s

provision that, barring unusual circumstances, an ALJ's order of revocation or suspension

normally states that the credential is to be surrendered "immediately."

The20l7 ALJ D&O, issued on October 24,2017, directed "that Respondent Robert Ryan

Boudreaux is hereby prohibited from serving aboard any vessel requiring a [MMC] for a period

of SIXTY DAYS commencing upon the issuance of this Decision and Order." ICG Ex.2 at22.]

In his bench ruling, the ALJ properly cited 46 CFR $ 5.567: "This section sets forth [that] the

effective date of the order is set by the terms of the order. In this case, Judge Smith in his Order

indicated that the effect of his Order was immediate." [Tr. Day III at7-8.] The ALJ below was

correct: the disputed order was, by its own terms, and consistent with 46 CFR $ 5.567, effective

asofOctober24,20lT,andRespondent'sargumenttothecontraryisunavailing.Cf

Admínistrator v. Goade, NTSB Order No. EA-2636,1987 WL 122196 at2 (pilot's professed

belief that he could continue to fly after surrendering his civil airman's certificate, because

appeal of the certificate's suspension was pending, was erroneous, not creditable, and no defense

to the charge of operating on a suspended certificate).

5
BOUDREAUX No. 2,7 2 7

II.

An AIJ D&O is not aþrmal, duly estab.lished rule, so violation of such an order is not

mtsconduct.

As already noted, the ALJ in this case found proved the allegation that Respondent

served under authority of his credential in violation of an ALJ order suspending that credential.2

On appeal, Respondent argues that the decision and order of a Coast Guard ALJ is not a "formal,

duly established ruIe," and that therefore, even if Respondent did violate the2017 D&O by

sailing on the authority of his credential between October 25 and November 13, his conduct did

not amount to misconduct. [Respondent's Appellate Brief at 9.]

A charge of misconduct must be based on the accused's violation of "some formal, duly

established ruIe." 46 CFR ç 5.27. The regulations provide a non-exhaustive list of sources for

such rules: "stafutes, regulations, the common law, the general maritime law, a ship's regulation

or order, or shipping articles and similar sources." 1d.

The ALJ below made a considered evaluation of Respondent's argument that an ALJ

D&O is not a duly established rule, and rejected it. The ALJ reasoned that, because 46 CFR

$ 5.19(b) delegates the Commandant's suspension and revocation authority to Coast Guard

ALJs, Respondent's argument that ALJ orders are not formal, duly established rules under ç 5.27

would equally exclude from that category formal orders of the Commandant-a patently absurd

result that is in no way compelled by the plain language of the regulations. [Tr. Day III at7.]

The ALJ's conclusion-that ALJ suspension orders are formal, duly established rules,

violation of which may give rise to a misconduct allegation-is supported by relevant precedent.

An ALJ order of February 5, 1990, found a negligence charge proved, and suspended respondent

mariner Taylor's license for two months, effective immediately. See Appeal Decision 2524

QAYLOR),1991WL 11007456,affd,NTSB OrderNo. EM-174,1993WL402785. Thatorder

was served on Taylor on February 8. On February 10, 1990, Taylor assumed command of an

uninspected towing vessel, and operated that vessel for twelve days during the period of outright

2 The prior ALJ order read: "IT IS FURTHER ORDERED, that Respondent Robert Ryan Boudreaux is hereby

prohibited from serving aboard any vessel requiring a Merchant Mariner's Credential issued by the U.S. Coast

Guard for a period of SIXTY DAYS commencing upon the issuance of this Decision and Order." [CG Ex. 2.]

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BOUDREAUX No. 27 2T

suspension, in violation of the ALJ order. The Coast Guard filed a new complaint, alleging

misconduct against Taylor, as supported by twelve specifications of violation of the February 5

suspension order, one specification for each day he served as Master. TAYLOR at 1, 1991 V/L

11007456 at 1. This misconduct charge was found proved, a ûnding upheld on appeal to the

Commandant and the National Transportation Safety Board (NTSB).

Here, the ALJ was correct to conclude that the October 24,2017 D&O was a "formal,

duly established ruIe," the violation of which constitutes misconduct. This conclusion was

supported by relevant statute, regulation, and precedent, and I fully affirm and endorse it.

"These proceedings serve no useful or remedial purpose if the orders issued by the

Administrative Law Judge are not strictly enforced and obeyed." TAYLOR at 9, 1991 WL

11007456 at 7. The suspension and revocation authority, vested in the Coast Guard by 46 U.S.C

Chapter 77, and delegated to the ALJ by 33 CFR $ 5.19(b), is meaningless if not enforced, and

the means pursued by the Coast Guard here (a second complaint against Respondent's

credential) are an appropriate means of enforcement.

The ALJ found, and I affirm, that the 2017 D&O was a formal, duly established rule, the

violation of which gives rise to a misconduct charge. Such a situation could be viewed in

another way: because Respondent's license was suspended3 by the Order of October 24,2017,

his service from that day until November 13,2017, without a valid credential, in a capacity that

required him to be the holder of a valid MMC with AB rating, violated 46 U.S.C. $ 3701(b).4 C/

Appeal Decision 2481 (CROWLEY),1989 WL 1126138 (upholding ALJ's suspension order for

violation of $ 8701(b) where the respondent filled a credentialed deckhand billet while his MMC

was suspended). From either viewpoint, Respondent's conduct clearly constituted misconduct.

3 The order was effective immediately, and was enforceable when Respondent had notice of it, which was not later

than October 29.2017.

a On vessels of more than 100 gross tons, including the SEAKAY SPIRIT, "an individual may not serve[] on board

. . if the individual does not have a msrchant mariner's docr ment issued to the individual under section 7302 of this

title. . . . [T]he document must authorize service in the capacity for which the holder of the document is engaged or

employed." Violation of that statute may incur a civil penalty of $500. $ 8701(d). See also 46 CFR $ 15.401.

7
BOUDREAUX NO. 2',1 frT

ilI.

The 2017 D&O was in error and notfinal agency action, and the AIJ thereþre erced in

considering ít part of Respondent's prior record, þr purposes of assessing a proper sanction.

Respondent contends that the ALJ's consideration of the 2Ol7 D&O in determining the

proper order for the second case was reversible error, in that the D&O was on appeal, and

therefore not a final agency order and not appropriate for consideration as part ofhis prior record

under 46 CFR $ 5.569. [Respondent Appellate Brief at 12.] Respondent further asserts that

reliance on the findings of the D&O was in error because those findings were themselves

erroneous. [1d.]

In these suspension and revocation proceedings, the selection ofan appropriate order is

within the discretion of the presiding ALJ, subject to appeal and review. 46 CFR $ 5.569(a). For

offenses that do not carry a mandatory sanction of revocation the ALJ shall, in determining the

proper order, consider remedial actions taken by the respondent, the prior record of the

respondent, and other evidence in mitigation and aggravation. 46 CFR $ 5.569(b).

33 CFR $ 20.1315(a) identifies the elements of a "prior record," including "fflinal agency

action by the Coast Guard on any S&R [suspension and revocation] proceeding in which a

sanction or consent order was entered." $ 20.1315(a)(2). As discussed supra, unless appealed to

the Commandant, a Coast Guard ALJ decision becomes final ageîcy action thirty days after its

issuance. 33 CFR $ 20.1101(bxl). A Commandant Decision on Appeal is final agency action

as of the date of issuance. 33 CFR $ 20.1101(b)(2). An ALJ decision pending appeal to the

Commandant is not final agency action. Therefore, a decision pending appeal is not properly

part of a mariner's prior record for consideration when determining a proper order in a

subsequent suspension and revocation proceeding, under $ 5.569(bX2).

Here, the ALJ issued his bench ruling on October 18, 2018, while Respondent's appeal of

the D&O in case CG-ALJ 2016-0332 was pending. The ALJ considered the D&O as part of

Respondent's prior record in determining a proper sanction, and specifically cited "Respondent's

earlier charge . . . for willfully disobeying a master's order." [Tr. Day III at 10.] The ALJ

considered this prior charge, in combination with the present charge for disobedience to an

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BOUDREAUX No. 27 2T

ALJ's order, as indicative of an underlying disdain for legal authority on Respondent's part,

relevant to assigning a proper order. fld. at I 0- I 1 .] However, the finding that Respondent had

violated a Master's order was invalidated by Appeal Decisíon 2723 (BOUDREAUX I) at 15,2I,

2019WL8137712 at 10, 15, although my decision otherwise sustained the act of misconduct by

failing to comply with the marine employer's drug and alcohol policy.

Considering the D&O as part of Respondent's prior record, as of October 1 8, 201 8, was

error, because the D&O was not final agency action, and did not fall into any of the categories of

prior disciplinary records forming a mariner's 'þrior record," as enumerated at 33 CFR

$ 20.131s(a).s

To be clear, the ALJ was correct to'consider the 2017 D&O in his consideration of the

merits of the Government's present allegations against Respondent. The basis of this misconduct

case is Respondent's violation of the suspension order contained in the2017 D&O, and there

was no error in the ALJ's admission of that D&O as a Govemment exhibit, nor in his

interpretation and application of the Order in his findings of fact and conclusions of law. lSee

Tr. Vol. III at l-9.1

Given ALJ error in determining the sanction, a proper sanction may be determined de

novo onappeal, on the administrative record. See 5 U.S.C. $ 557(b); Appeal Decisions 2717

(CHESBROUGH) a!14,2017 WL6941489 at 9-10; I8I3 (JEWELL) at5,1970 V/L ll7O59.

The remainder of this opinion will determine a proper sanction, pursuant to 46 CFR $ 5.569, de

novo. See Appeal Decísion 2575 (WLLIAMS) at 12,1996 WL 33408496, and cases cited

therein.

5 The Government contends that the ALJ's consideration of the 2017 D&O was appropriate, because an ALJ D&O

pending appeal should be considered part ofan individual's prior record under the definition of"safe and suitable

person" at 46 CFR $ 10.107. [CG Appellate Brief at 14.] This argument is unavailing. $ 10.107 provides

definitions for use in 46 CFR Subchapter B. The "safe and suitable person" definition cited by the Government is

particularly directed at 46 CFR $$ 10.211 and 10.213, regulating the evaluation of criminal and driving records for

credential applicants. On the other hand, 33 CFR $ 20.1315 is a specific rule of evidence for suspension and

revocation proceedings, directly applicable to the circumstances at hand. While the definitions at $ 10. 107 may be

relevant on occasion in proceedings under 33 CFR Part20, they do not preempt the specific rules of evidence for

these proceedings.

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BOUDREAUX No. 27 2l

Notwithstandingde novo consideration, it is appropriate to consider the factors in

mitigation and aggravation (excluding prior record) discussed by the ALJ. Appeal Decision

2717 (CHESBROUGH) at14,2017 WL6941489 at 9-10.

As to mitigation, the ALJ found that Respondent's application for a ternporary credential

subsequent to disernbarking the SEAKAY SPIRIT, could be considered a mitigating remedial

action, in that it recognized the validity of the prior ALJ suspension order. [Tr. Day III at 10.]

Respondent's receipt of that temporary credential was also a mitigating factor, in that it

demonstrated that Respondent's continued service did not represent an imminent threat to safety

at sea. lld. at 11.] Respondent's long service and demonstrated professionalism and competence

as an able-bodied seaman were additional mitigating factors. Í1d..1 In aggravation, the ALJ

consideredRespondent's"testimonyanddemeanor...indicat[ing]...acertaindisdainfulness

of rules, regulations, or decisions issued or ordered by others [, u]nder the mistaken belief that

these orders are not in compliance with the Respondent's own understanding of what he believes

the proper procedures are." lld.l

In these suspension and revocation proceedings, the selection ofan appropriate order is

discretionary, for all offenses that do not carry a mandatory sanction of revocation. 46 CFR

, $ 5.569 provides guidance for the selection of a proper sanction, and includes a list of suggested

ranges for various offenses, at Table $ 5.569. Orders within the suggested ranges will not be

considered excessive, but "[m]itigating or aggravating factors may make an order greater or less

than the given range appropriate." 46 CFR $ 5.569(d). Violation of an ALJ's order is not a

listed offense in Table $ 5.569.

Operating under the authority of a suspended credential, in violation of an ALJ

suspension order, is a serious act of misconduct.

These proceedings serve no useful or remedial purpose if the orders issued by the

Administrative Law Judge are not strictly enforced and obeyed. ***

The Administrative Law Judge understandably has a justified concern that his

[suspension] order was flagrantly disregarded and could be disregarded again. Appellant

has demonstrated no respect for the previous order issued and there is no reason to

believe that he would not similarly disregard subsequent suspension orders.

l0
BOUDREAUX No. 27 27

Appeal Decision 2524 (TAYLOR) atg,l99I V/L I 1007456 at7, affd, Commandant v. Taylor,

NTSB Order No. EM-174,1993 WL 402785. TAYLOR upheld an order of revocation for

operating under the authority of a suspended credential.6

As noted, there is no suggested order range for violation of an ALJ's order, nor for

operating on the authority of a suspended credential. However, the table supports the general

propriety of a three-month suspension order for such a misconduct offense-there is no listed

category of misconduct violation for which a sanction of three months suspension would be

considered excessive.

Considering all of the foregoing, and in light of the remedial aim of this proceeding, a

sanction of 90 days suspension, with additional probation, for misconduct by operating in

violation of a suspension order is appropriate.

Upon de novo consideration I find that a 90-day suspension plus probation is appropriate

for the allegation found proved. Therefore there is no need to alter the ctrrently-effective Order

of October 26,2018, as modified by the Order of December 6,2018. Respondent remains

subject to an Order of 90 days outright suspension, of which 30 days suspension is deferred until

administrative exhaustion of Respondent's appeals, and eight months further suspension

suspended on one year ofprobation.

CONCLUSION

The ALJ's findings and decision were lawful, based on correct interpretation of the law,

and supported by the evidence. The Order imposed by the ALJ, suspending Respondent's

Merchant Mariner Credential for 90 days, as modified by the Order of Decernber 6, 2018, is

AFFIRMED.

6 Affrrming the Coast Guard appellate decision n TAYLOR, the NTSB observed: "'While the issue may be novel in

the Coast Guard context, the Board had decided numerous aviation enforcement cases in which operation during the

period of an airman certificate suspension was alleged. When such a charge has been upheld, the sanction

traditionally has been revocation." Commøndqnt v. Taylor, NTSB Order No. EM-174 at 6 n. 10, 1993 WL 402785

at 2 (citing Administrqtor v. Dunn, NTSB Order No. EA-2576,1987 WL l22ll4 at2). See also Administrøtor v.

Goade, NTSB Order No. EA-2636,1987 WL 122196 at 4 ('Intentionally operating during a suspension is perhaps

the ultimate dsfiance of regulatory authority.").

ll
BOUDREAUX NO 27 27

ORDER

The ALJ's Decision and Order dated October 26,2018, as modified bythe Order of

December 6,2018, is AFFIRMED.

/oü, Its<6

Vt

Signed at Washington, D.C., tlns Z? day of //¿l¿ ,2ozo.

t2