UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

BENJAMIN LOWELL EDWARDS 

Respondent

_________________________________ Docket Number 2013-0002

Enforcement Activity No. 4510039

DECISION AND ORDER

Date Issued: June 25, 2014

Issued by: Hon. Bruce Tucker Smith

 Administrative Law Judge

Appearances:

For the Coast Guard;

CWO James M. Bailey

Sector New Orleans

For the Respondent;

David Gernhauser, Jr., Esq.
I. PRELIMINARY STATEMENT

On January 3, 2013, the United States Coast Guard (Coast Guard) filed a 

Complaint against Respondent Benjamin Lowell Edwards (Respondent) seeking 

revocation of Respondent’s Coast Guard-issued Merchant Mariner’s License (MML or 

credential) alleging use of, or addiction to the use of, dangerous drugs under 46 U.S.C. 

§7704(c) and 46 C.F.R. §5.35. More particularly, the Complaint alleged that 

Respondent submitted to a random drug test and provided a urine sample that 

subsequently tested positive for cocaine metabolites. 

Thereafter, on January 15, 2013, Respondent and the Coast Guard entered into 

a Settlement Agreement, ostensibly resolving the matters contained in the Coast 

Guard’s original Complaint. The gravamen of the Settlement Agreement provided that 

Respondent must not fail a drug test.

On January 22, 2013, a Coast Guard Administrative Law Judge entered a 

Consent Order, approving of the terms and conditions of the January 15, 2013 

Settlement Agreement.

On March 11, 2014, the Coast Guard filed a Notice of Failure to Complete 

Settlement Agreement, alleging that Respondent had tested positive for drugs. The 

Coast Guard contends that Respondent submitted urine specimen for chemical testing 

and that, thereafter, that sample tested positive for cocaine metabolites.

On or about March 28, 2014, The Respondent contested the Notice and 

indicated his desire for a due-process hearing wherein the Coast Guard was obligated 

to prove he had, in fact, breached the Settlement Agreement by virtue of the failed drug 

test. 

On June 19, 2014, this matter came on for hearing at the U.S. Coast Guard 

Administrative Law Judge Courtroom, in the Hale Boggs Federal Building, in New 
Orleans, Louisiana.1

 The hearing was conducted in accordance with the Administrative 

Procedure Act (APA), as amended and codified at 5 USC §§551-559, and the Coast 

Guard procedural regulations as set forth in 33 CFR Part 20. Coast Guard Attorney 

Gary Ball, Esq. and Investigating Officer CWO James Bailey appeared on behalf of the 

Coast Guard; Respondent was represented by counsel, David W. Gernhauser, Esq., 

and was present in court.

At the hearing, Respondent indicated his desire to admit that he had made use of 

cocaine, in violation of the January 15, 2013 Settlement Agreement and expressed his 

understanding that his failure was sufficient to warrant REVOCATION of his MMC. 

The court also entertained the advice and counsel of attorneys for both parties 

and believes Respondent is sincere in his desire to pursue a safe career in the maritime 

industry and had taken some meaningful steps toward rehabilitation. The court takes 

particular note that Respondent continued to submit himself to drug testing and 

Alcoholics Anonymous meetings even after the failed drug test. 

The court believes that Respondent is beginning to appreciate the consequences 

of his illness and his behavior. Thus, if within the next eighteen months (commencing 

upon the date of this Order) Respondent completes all of the following, the court will 

favorably entertain a Motion to Reopen, per 33 CFR §20.904(f):

1. Respondent will attend Alcoholics Anonymous/Narcotics Anonymous 

meetings at least four times a month for the next eighteen months and 

he will maintain verifiable written evidence (including signatures by 

appropriate Alcoholics Anonymous members/leaders) of his 

attendance at Alcoholics Anonymous for presentation to the court. 

2. Respondent will continue psychological counseling with an appropriate 

psychiatrist, psychologist, or other appropriate mental health provider 

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

(Tr. __ ). Citations referring to Agency Exhibits are as follows: Investigation Officer followed by the exhibit number 

(CG Ex. 1, 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.). 

 
for the next eighteen months, as is deemed medically necessary by 

that psychiatrist, psychologist, or other appropriate mental health 

provider. The court may require verifiable proof of Respondent’s 

presence at any/all of the required counseling sessions.

3. Respondent will not violate any Federal, State, Parish or City criminal 

law (minor traffic violations excepted) for the next eighteen months.

4. Respondent will, for the next eighteen months, submit himself to 

random drug and/or alcohol testing, at a Department of Transportationapproved, third-party drug-testing consortium facility (perhaps the one 

Respondent previously used), at his own expense, at such times as 

that third-party consortium deems appropriate. Respondent will 

promptly provide the Coast Guard (Sector New Orleans) with the 

written results of such testing as immediately practical after such 

test(s) are completed. 

If Respondent successfully completes all of the requirements of paragraphs 1 

through 4 above during the eighteen month period described herein, then the court will 

view a Motion filed under 33 CFR §20.904(f) in a light favorable to Respondent. If, 

however, Respondent fails to demonstrate his compliance with the terms set forth in 

paragraphs 1 through 4 above, then his MMC will remain REVOKED.

VI. SANCTION

Based upon the record as a whole, the appropriate sanction is REVOCATION of 

Respondent’s MMC. If Respondent successfully completes all of the stated 

requirements contained in paragraphs 1 through 4 above during the eighteen month 

period described herein, then the court will favorably view a Motion filed under 33 CFR 

§20.904(f). If, however, Respondent fails to comply with all of the terms set forth in 

paragraphs 1 through 4 above, then his MMC will remain REVOKED. 

The Coast Guard will maintain physical custody of Respondent’s MMC during the 

eighteen month period described herein.

WHEREFORE, 
VII. ORDER

IT IS HEREBY ORDERED, that all allegations of the Complaint filed against 

Respondent Benjamin Lowell Edwards are found PROVED.

IT IS FURTHER ORDERED, that Respondent Benjamin Lowell Edwards’ Coast 

Guard-issued MMC shall remain in the custody of the Coast Guard to be retained for a 

period of eighteen months from the date of this Order. Respondent is hereby barred 

from acting under the authority of his MMC.

PLEASE TAKE NOTE that issuance of this decision serves as the parties’ right 

to appeal under 33 CFR Part 20, Subpart J. A copy of Subpart J is provided as 

Attachment B.

__________________________________________________

Bruce Tucker Smith

US Coast Guard 

Administrative Law Judge

Date: June 25, 2014
TITLE 33 - NAVIGATION AND NAVIGABLE WATERS

CODE OF FEDERAL REGULATIONS PART 20 RULES OF PRACTICE, PROCEDURE, AND 

EVIDENCE FOR FORMAL ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD

SUBPART J - APPEALS

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.

(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.