UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

UNITED STATES OF AMERICA

UNITED STATES COAST GUARD

v.

DECISION OF THE

. VICE COMMANDANT

ON APPEAL

MERCHANT MARINER CREDENTIAL

Issued to: CORINTHIS EMILE THOMAS

APPEARANCES

NO. 2700.

For the Government:

LT Lineka N. Quijano

Gary F. Ball, Esq.

LT Jonathan D. Shumate on appeal

Respondent pro se

Administrative Law Judge: Walter J. Brudzinski

This appeal is taken in accordance with 46 U.S.C. § 7701 et seq., 46 C.F.R. Part 5, and

the procedures in 33 C.F.R. Part 20.

By a Decision and Order (hereinafter "D&O") dated June 2, 2011, Walter J. Brudzinski,

an Administrative Law Judge (hereinafter "ALJ") ofthe United States Coast Guard, revoked the

Merchant Mariner credential of Mr. Corinthis Emile Thomas (hereinafter "Respondent") upon a

finding of default in a proceeding that alleged, as the basis for revocation, two counts of

incompetence and one count ofmisconduct.
THOMAS

PROCEDURAL HISTORY

NO. ·2700

;

This case progressed as follows:

• January 28, 2011-Coast Guard files Complaint against Respondent's Merchant

Mariner credential alleging two counts ofincompetence and one count of

misconduct.

• February 17, 2011-Complaint received at Respondent's address ofrecord and

signed for by Respondent.

• February 18, 2011-Respondent files his answer in the matter wherein he denies

all jurisdictional and factual allegations and agrees with the proposed hearing

dates of April 19, 20, or 21, 2011, and the proposed hearing location at the

Alexander Hamilton Customs House in New York, New York.

• March 28, 2011-ALJ issues Scheduling Order in the case setting the hearing of

April 20, 2011, at the Alexander Hamilton Customs House in New York, New

York.

• April 13, 2011-Coast Guard files a Motion for a Pre-Hearing Conference to be

conducted via telephone.

• April 14, 2011-ALJ issues Scheduling Order - Pre-Hearing Conference

granting the Coast Guard's Motion for a Pre Hearing Conference and setting a

teleconference for April 18, 2011 at 3:00 p.m. EST.

• April 18, 2011-Pre-Hearing Conference held, Respondent does not attend;

Coast Guard moves orally for default due to Respondent's failure to appear. ALJ

takes motion under advisement, providing Respondent the opportunity to appear

at the hearing. [Memorandum and Order of Pre-Hearing Teleconference at 1]

• April 20, 2011-Hearing held; Respondent does not attend and Coast Guard

again moves orally for a default in the matter. [Order to Show Cause at 1-2]

• April 20, 2011-ALJ issues "Order to Show Cause" to Respondent, ordering that

by May 20,2011, Respondent show good cause as to why he failed to appear at

the pre-hearing teleconference on April 18, 2011, and the hearing on April 20,

2011.

• May 5, 2011-Respondent files two hand-written documents. In the first

document, Respondent states that he did not attend the pre-hearing teleconference

because he was denied use of a telephone at the Seafarer Union Hall. In the

second document, Respondent requests to move the hearing location to Mobile or

New Orleans due to travel expense. (Respondent appears to be under the

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THOMAS NO. 2700

mistaken impression that the hearing in the matter has been rescheduled for May

20,2011.)

• May 12, 20ll-Coast Guard files "Motion in Opposition to Respondent's Motion

to Demonstrate Good Cause and Request a Change ofVenue."

• May 19, 20ll-Respondent files another document wherein he appears to request

an extension ofthe May 20 date specified in the Order to Show Cause because of

his incarceration in a local jail.

• June 2, 20ll-ALJ issues D&O finding Respondent in default in the matter upon

finding that Respondent failed to show good cause for his failure to appear at the

Pre-Hearing Teleconference and the hearing.

• June 14, 20ll-Respondent files a document asserting that there is good cause to

support the re-opening of his case.

• June 16, 20ll-ALJ issues "Order Denying Motion to Re-open."

• June 25, 20ll-Respondent files a document that can be characterized as a

Notice of Appeal.

• July 22, 20ll-Respondent files a document that can be characterized as an

appeal brief.

• July 27, 20ll-Respondent files another document in reference to his appeal.

• August 25, 20ll-Coast Guard files its Reply to Respondent's Appellate Brief.

This appeal is properly before me.

FACTS

At all times relevant herein, Respondent was the holder of a Coast Guard-issued

Merchant Mariner credential at issue in this proceeding.

Because a hearing on the merits never occurred in the matter, the facts supporting the

ALl's Decision and Order revoking Respondent's Merchant Mariner credential were developed

solely via the Coast Guard Complaint. The Complaint alleges as follows:

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THOMAS NO.

Factual Allegations-Incompetence

1. On or about December 6,2007, while serving onboard the MAERSK MONTANA,

the Respondent suffered from hallucinations, anxiety, and agitated behavior which

rendered him unable to perform his duties as an able seaman, and was taken to his

stateroom, prescribed anti-psychotic medication, and later hospitalized for a psychotic

disorder.

2. On or about April 30, 2010, while onboard the HORIZON TRADER, Respondent

suffered from hallucinations, schizophrenia, irrational behavior, mood changes, and

paranoia and was subsequently involuntarily admitted to Trinitas Psychiatric

Behavioral Health Hospital, issued anti-psychotic medications and was thus unable to

perform his duties as able seaman.

Factual Allegation-Misconduct

1. On or about February 25,2010, while serving onboard the LTC CALVIN P. TITUS,

Respondent aggressively threatened and verbally assaulted the ChiefMate while

brandishing a crowbar, resulting in an Official Reprimand and termination which

rendered him unable to perform his duties as an able seaman.

[Complaint at 2]

BASES OF APPEAL

This appeal has been taken from the ALl's D&O finding the allegations set forth in the

Complaint proved and ordering the revocation ofRespondent's Merchant Mariner credential.

Respondent says that the default should be set aside because he was unable to be present

at the hearing because of a lack offinances, his unexpected incarceration, and a property crisis,

and because he was approximately 1800 miles away from the site ofthe hearing. [Respondent's

Notice of Appeal at 1] Respondent asks that he be given another chance on another date so that

he may defend himself against the allegations. [Id] He states, with regard to the misconduct

charge, that the matter should not have been presented to the Coast Guard because it was

resolved within the organization. [Respondent's July 22 appellate filing at 2] Respondent says,

with regard to the first allegation ofincompetence, that the allegation was waived when his

Merchant Mariner credential was renewed on September 15,2009. [Respondent's July 27

appellate filing at 1] With regard to the second allegation ofincompetence, Respondent says that

due to New Jersey's law, he was unnecessarily hospitalized. [Respondent's July 27 appellate

filing at 2]

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THOMAS NO. 2700

From Respondent's story, I discern the following issue:

Whether the AUwas correct to conclude that Respondent had notprovided good cause

for hisfailure to appear at the scheduled hearing and teleconference.

OPINION

Whether the AUwas correct to conclude that Respondent had not provided good cause for his

failure to appear at the scheduled hearing and teleconference

When a default order is issued, the decision is reviewed for abuse of discretion. Appeal

Decision 2696 (CORSE). The standard ofreview for abuse of discretion is higWy deferential:

A reviewing court conducting review for abuse of discretion is not free to

substitute its judgment for that ofthe trial court, and a discretionary act or ruling

under review is presumptively correct, the burden being on the party seeking

reversal to demonstrate an abuse of discretion ... [A]buse of discretion occurs

where a ruling is based on an error oflaw, or, where based on factual conclusions,

is without evidentiary support.

5 Am. lur. 2d Appellate Review § 695 (1997) (cited in Appeal Decision 2610 (BENNETT)).

Coast Guard regulations allow an ALl to issue a default order when a Respondent fails to

either file an Answer in a case or appear at a scheduled hearing or conference. 33 C.F.R.

§ 20.31O(a); see also Appeal Decisions 2696 (CORSE), 2665 (DUBROC) and 2647 (BROWN).

The regulations require the ALl, upon finding Respondent in default, to issue a decision against

Respondent. 33 C.F.R. § 20.31O(d). 33 C.F.R. § 20.310(e) further provides, "Default by

respondent constitutes ... an admission of all facts alleged in the complaint and a waiver of his

or her right to a hearing on those facts." 33 C.F.R. § 20.310(e) allows an ALl to set aside a

finding of default for good cause shown.

In this case, Respondent failed to appear at both a scheduled pre-hearing conference and

a scheduled hearing even though the record shows that Respondent was aware that both activities

had been scheduled by the ALl. The question thus becomes whether Respondent provided good

cause for his failure to appear at the scheduled conference and hearing. On appeal, Respondent

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THOMAS NO. 110~,

asserts that financial hardship, unexpected incarceration, a "property crisis," and the fact that he

was "approximately 1800 miles away" from the hearing location prevented him from attending

the scheduled hearing and teleconference. [Respondent's Notice of Appeal] These points are

not different in substance from those he raised before the ALl in response to the Order to Show

Cause as to why he did not attend the conference and the hearing.

In these proceedings, neither incarceration nor a lack offinances provides an adequate

excuse for a mariner to fail to attend a scheduled hearing when the mariner has been provided

notice ofthe hearing and could have corresponded with the ALl, but did not, regarding the

hearing. Appeal Decisions 2564 (MANUEL) and 1323 (CUNNINGHAM).

In this case, the record shows, as the ALl found, that Respondent was provided notice of

both the pre-hearing teleconference and the hearing. Respondent had originally agreed with the

proposed hearing location. He made no attempt before either the conference or the hearing to

correspond with the ALl regarding changing the location ofthe hearing or any perceived

difficulty in attending. Instead, Respondent waited until after the pre-hearing conference and

hearing dates passed to raise concerns regarding his ability to attend those sessions. Under these

circumstances and in accordance with Coast Guard case law precedent, Respondent did not show

good cause for his failure to attend the scheduled sessions, and the ALl did not abuse his

discretion in so concluding.

On appeal, Respondent has provided his positions on the merits ofthe three counts

against him. Particularly with respect to the allegation ofmisconduct and the second allegation

of incompetence, he has not raised a meritorious defense, and hence there is no basis for setting

aside the ALl's default order. See Appeal Decision 2696 (CORSE).

CONCLUSION

The ALl's decision to issue a Default Order was not an abuse of discretion. The sanction

assessed is in accordance with applicable law and regulation. There is no reason to disturb the

ALl's Order.

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THOMAS

ORDER

The order ofthe ALJ, dated June 16,2011, is AFFIRMED.

NO.' rl'lO ()

VIc.6IWIU~tAt..

Signed at Washington, D.C. this 1:S day of t..'1 ,2012.

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