UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

v. 

JOHNNY OCE CONNOR 

Respondent 

_______________________ 

Docket Number CG S&R 08-0326 

CG Enforcement Activity No: 3282231 

 

ORDER GRANTING IN PART, DENYING IN PART COAST GUARD 

MOTION FOR SUMMARY JUDGMENT 

ORDER SETTING EVIDENTIARY HEARING 

 Issued: April 16, 2009

Issued by: Bruce T. Smith, Administrative Law Judge

Appearances:

Investigating Officer: 

LCDR Melissa J. Harper 

CWO4 Jo N. Wildman 

Coast Guard Sector Lower Mississippi River 

For Respondent: 

Jane Johnson, Esq. 

Tulane Legal Clinic 
On Tuesday, April 14, 2009, a hearing on the parties’ opposing Motions for 

Summary Decision was convened before the undersigned in New Orleans, LA. The Coast 

Guard was represented my LCDR Melissa Harper, District 8 Legal Office. Respondent 

was represented by Messrs. Galloway and Flynn, student interns from the Tulane Legal 

Clinic under the supervision of Jane Johnson, Esq. 

After extensive briefing and arguments by the parties, the matters were submitted 

to the undersigned for a decision. During the hearing, it was discovered that an affidavit 

signed by a Mr. Joseph M. Tyson and filed by Respondent’s counsel, was not associated 

with the court file. That matter was rectified on April 16, 2009 when Respondent’s 

counsel provided a copy to the undersigned. 

The Coast Guard’s Motion affirmatively seeks revocation of Respondent’s license 

(1182998) because his conviction for voluntary manslaughter would have precluded the 

issuance of renewal of his license per 46 U.S.C. §7703(2) and the implementing 

regulations contained at 46 C.F.R. Subpart B. 

By contrast, Respondent’s Motion for Summary Decision seeks no affirmative 

relief; rather, it simply seeks to maintain the status quo of the case and has the practical 

effect of urging this court to proceed to a full evidentiary hearing. Respondent’s Motion 

is, in substance, a rebuttal of the Coast Guard’s Motion. 

Coast Guard’s Motion for Summary Decision 

To prevail on a Motion for Summary Decision, a party must establish that there 

are no material issues of fact in dispute and that the moving party is entitled to a 
judgment as a matter of law. Summary Decision may be granted “in all or any part of the 

proceeding.” 33 C.F.R. §20.901. 

Here, the Coast Guard alleges the Respondent was convicted of voluntary 

manslaughter in the State of Tennessee on March 24, 2008, as evidenced by a certified 

copy of the judgment entered by circuit court of Hardin County, TN. Because 

Respondent does not contest the fact of his conviction, there is no disputed material fact 

relative to Respondent’s conviction. Hence, partial summary decision is granted in favor 

of the Coast Guard insofar as the conviction of voluntary manslaughter is concerned. For 

the purposes of this Order, the undersigned regards voluntary manslaughter as an 

“intentional homicide.” 

The Coast Guard argues that 46 U.S.C. §7703(2) provides that a mariner’s license 

may be suspended or revoked if the holder is convicted of an offense that would preclude 

the issuance or renewal of that license. 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. 

Guidance in 46 C.F.R. §10.201 contains the criteria for the eligibility for 

mariner’s licenses and §10.201(h) offers guidance for the evaluation of mariners with 

criminal backgrounds. Further, §10.201(h)(2) directs an “OCMI” (Officer in Charge, 

Maritime Inspections) to use table 10.201(h) to evaluate applicants who have criminal 

convictions. Table 10.201(h), in turn, identifies “assessment period” of seven to twenty 

years for a person convicted of intentional homicide. 

Unfortunately, the pertinent regulations do not provide a definition of an 

“assessment period” or what utility that period is to either an OCMI or an Administrative 
Law Judge. That omission, however, is moot, here, because §10.201(h)(2) specifically 

provides that: “The assessment period commences when an applicant is no longer 

incarcerated.” Here, Respondent’s sentence, entered on March 24, 2008, provides that he 

will: 

Serve 1 week in jail for 3 consecutive years during the week of April 15th 

beginning April 15, 2009. No alcohol use of any kind unless small amount 

through prescription. [sic] 

Thus, no “assessment period” can commence for this Respondent, because 

his last incarceration will end in April 2012. 

Section 10.201(h)(4) provides 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). 

In sum, the 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. 

Because Respondent has not been afforded an opportunity to present 

matters in support of his suitability for marine service, a material issue of fact 

exists. Thus, summary decision is inappropriate and I DENY that portion of the 

Coast Guard’s Motion for Summary Decision as it relates to the petition for 

revocation of Respondent’s license. (Conversely, I GRANT that portion of the 

Respondent’s Motion for Summary Decision as it relates to the petition for 

revocation of Respondent’s license.) 
Evidentiary Hearing 

Both parties are entitled to an expeditious resolution of this matter. Only 

an evidentiary hearing will afford both parties an opportunity to present factual 

matters which aid the undersigned in resolving the issue whether the Respondent 

would have been denied issuance or renewal of his license following his criminal 

conviction. 

WHEREFORE, 

IT IS HEREBY ORDERED that the Coast Guard’s Motion for Summary 

Decision is GRANTED in part and DENIED in part as more fully explained 

above. 

IT IS FURTHER ORDERED that an evidentiary hearing will convene at 

1:00 pm, CDT, on Monday, April 27, 2009 in the courtroom located in Suite 

1211, Hale Boggs Federal Building, 500 Poydras St., New Orleans, LA. and will 

continue from day to day thereafter until completed. 

Done and dated April 16, 2009 

New Orleans, Louisiana 

____________________________________ 

BRUCE T. SMITH 

ADMINISTRATIVE LAW JUDGE 

U.S. COAST GUARD