UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

PETER GARCIA 

Respondent

_________________________________ Docket Number 2010-0119

Enforcement Activity No. 3694807

ORDER AND NOTICE OF REVOCATION FOLLOWING RESPONDENT’S

FAILURE TO COMPLETE SETTLEMENT AGREEMENT

Issued: July 30, 2012

By Hon. Parlen L. McKenna

Appearances:

LT Christina M. Jones

Sector San Francisco

For the Coast Guard

ALFRED G. JOHNSON, Esq.

For the Respondent

Procedural Background

On March 12, 2010, the United States Coast Guard (Coast Guard) initiated suspension 

and revocation proceedings against Respondent by filing a Complaint 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 in 

connection with a drug test that came back positive for amphetamines. The parties subsequently 
entered into a Settlement Agreement,1 and on March 25, 2010, the case was assigned to me for 

review and disposition. On March 30, 2010, I issued a Consent Order approving the Settlement 

Agreement.

On January 18, 2012, the Coast Guard filed a Notice of Failure to Complete Settlement 

Agreement. The Coast Guard filed this Notice because Respondent allegedly failed to supply 

evidence of his successful completion of the Settlement Agreement’s terms.

On February 9, 2012, Respondent’s counsel filed a request for hearing. Respondent’s 

filing requested that a hearing be set “to redetermine the facts and conclusions resulting in the 

issuance of the Notice . . . .” Hearing Request at 1. Furthermore, Respondent requested that the 

records at the Coast Guard Docketing Center and Respondent’s Merchant Mariner’s Records be 

modified “to reflect that action and be again modified . . . to show that the sanction remains 

stayed pending such a hearing.” Id. at 1-2. Finally, Respondent asked that additional time be 

provided to comply with the Settlement Agreement’s terms.

On February 10, 2012, this case was reassigned to me for review and disposition.

On February 21, 2012, the Coast Guard filed a Motion in Opposition to Respondent’s 

Request for Hearing, which argued: 1) Respondent’s failure to timely respond to the Notice of 

Failure to Complete Settlement Agreement rendered such a request ineffectual; 2) no basis exists 

to re-determine the facts and conclusions resulting in the Notice of Failure to Complete 

Settlement; 3) Respondent’s request for cancellation and dismissal of the Notice of Failure to 

Complete Settlement Agreement is without basis; and 4) Respondent’s request for his records at 

the Docketing Center and his Merchant Mariner’s records to be modified to reflect that the 

sanction of revocation remains stayed should be denied.

 1 The Motion for Approval of Settlement Agreement and Entry of Consent Order was filed on March 24, 2010.
On June 19, 2012, I conducted a prehearing telephonic conference call with the parties to 

discuss the issues surrounding Respondent’s Request for Hearing. Mr. Gerald Wheatley, Esq., 

appeared for the Coast Guard and Respondent was represented by his counsel, Mr. Alfred G. 

Johnson, Esq. As a result of that conference call, I provided Respondent 10 days to submit all 

information concerning Respondent’s compliance with the terms of the Settlement Agreement.

On June 19, 2012, Respondent’s counsel submitted a letter enclosing two letters: 1) a 

letter dated June 1, 2011 from Program Director Fermin Loza, Walden House, indicating that 

Respondent “is a resident at Walden House Residential Substance Abuse Program” where he had 

been admitted on March 13, 2012; and 2) a letter dated June 17, 2012 from Bruce G. Levy, MFT. 

The Levy letter indicated that Respondent began a recommended Day Treatment Program on 

March 11, 2010 but did not complete the program. The Levy letter also stated that Respondent 

subsequently admitted himself to a six-month Residential Treatment Program on March 13, 

2012.

On June 21, 2012, the Coast Guard responded to Respondent’s submission via an 

electronic mail directed to my attorney-advisor, which argued that revocation was the 

appropriate result for Respondent’s failure to complete the terms of the Settlement Agreement 

and that the conclusions by the Walden House and Mr. Levy that Respondent is ready to return 

to work beginning June 11, 2012 is “absolutely incorrect and fails to even mention the existing 

S[ettlement] A[greement] and its terms and provisions.”

Analysis

A respondent is obligated to perform the terms of a Settlement Agreement or face the 

consequences that automatically occur for such failure. Therefore, the purpose of these 

proceedings is limited to determining whether, in fact, Respondent violated the terms of the 

Settlement Agreement as the Coast Guard alleges and not to litigate the underlying violation. 

See Appeal Decision 2669 (LYNCH) (2007). The sole issue for hearing is whether, in fact, 
Respondent completed the terms of the Settlement Agreement or has a legally sufficient basis to 

excuse such failure. However, Coast Guard precedent and regulations do not permit a judge to 

excuse a respondent’s failure on equitable grounds or otherwise rewrite the terms of an executed 

Settlement Agreement so that a respondent can come into compliance. See 33 C.F.R. § 

20.502(c) (settlement decision must contain an express waiver of “[a]ny further procedural steps 

before the ALJ; and . . . all rights to seek judicial review, or otherwise challenge or contest the 

validity, of the decision” and the decision “resolves all matters needing to be adjudicated.”). 

Here, the Coast Guard alleged that Respondent has not provided evidence of his 

completion of the Settlement Agreement’s terms. The Settlement Agreement specifically 

outlined Respondent’s obligations, as well as the procedural mechanisms and substantive results 

of any failure. Under the Settlement Agreement, Respondent agreed to: (1) participate in a 

random, unannounced drug-testing program for a minimum period of one year (with 12 DOTcompliant, random drug tests spread reasonably throughout the year) following successful 

completion of a drug rehabilitation program; (2) attend a substance abuse monitoring program

(like AA/NA) for a minimum period of one year with at least two meetings per month; (3) obtain 

and file a return to work letter from the designated MRO; (4) be subject to increased, 

unannounced testing for a period of up to 60 months, with the period and frequency of such 

testing determined by the MRO; (5) pay all expenses associated with the completion of these 

terms; (6) deposit his Coast-Guard-issued credentials with Sector San Francisco until 

successfully completing the terms of the Settlement Agreement; (7) not perform any function 

that requires a Coast Guard-issued credential or endorsement; (8) advise the Coast Guard of any 

change of address and/or telephone number by mail; and (9) submit all evidence to the 

designated IO. Settlement Agreement at ¶ 3.

The Coast Guard acknowledged that Respondent completed the initial steps of enrolling 

in a drug rehabilitation program on March 11, 2010 but since that time allegedly has failed to 
prove any further evidence of satisfactorily completing the cure elements outlined above. See

Motion in Opposition to Respondent’s Request for Hearing at 2.

Respondent’s Request for Hearing asked for the “cancellation and dismissal of the Notice 

of Failure to Complete Settlement Agreement” and a hearing “to redetermine the facts and 

conclusions resulting issuance of the Notice”. Request for Hearing at 1. Respondent also 

requested that Respondent’s records “be modified to reflect . . . that the sanction remains stayed 

pending such a hearing.” Id. at 1-2. Respondent did not provide any details about his 

compliance with the Settlement Agreement’s terms but asked for “additional time for him to 

comply with the terms of the agreement”, which represents an admission that he did not 

complete the terms. Id. at 2.

The Settlement Agreement clearly indicated that if the Coast Guard reviewed and 

rejected Respondent’s evidence of compliance, an order of Revocation would be “automatically 

invoked” unless Respondent requested a hearing by filing a written request within 10 days of 

receiving the notice of failure to complete. Settlement Agreement at ¶ 4.c. The Coast Guard 

filed its Notice of Failure to Complete Settlement Agreement on January 18, 2012 and served it 

via certified mail, return receipt. Respondent’s Request for Hearing was sent on February 9, 

2012, which is outside the 10 days the Settlement Agreement mandated for submission of a 

request to be heard.

Such a procedural defect is not necessarily fatal to Respondent’s Request for Hearing. 

While the Request for Hearing should not be rejected out of hand because of this delay, it also 

should not be automatically excused. Respondent has failed to demonstrate good cause for such 

failure and did not explain why it was not timely filed, with circumstances justifying this late 

filing. Respondent’s failure to file a timely request for hearing (without demonstrating good 

cause for such failure) is a sufficient basis to reject Respondent’s Request for Hearing.
Of more concern with respect to Respondent’s Request for Hearing is whether he 

complied with the terms of the Settlement Agreement. Respondent seemingly admitted that he 

did not complete the Settlement Agreement’s terms in his Request for Hearing and was asking 

only for additional time to complete the cure process outlined in that agreement. 

The Settlement Agreement contained specific mechanisms for Respondent to request an 

extension of time to complete the agreement. See Settlement Agreement at ¶ 9 (“The final 

completion date . . . may, by mutual agreement of the parties, be extended up to 90 days . . . . If 

the parties request an extension greater than 90 days, they must file a request with the ALJ 

Docketing Center for approval by an Administrative Law Judge, who may approve the extension 

only on a showing of good cause.”) (emphasis added). Importantly, such extensions are only 

available through mutual consent of the parties and only on a showing of good cause for 

extensions greater than 90 days. The undersigned is not empowered to unilaterally extend or 

rewrite the terms of the Settlement Agreement.

Respondent’s later submission failed to provide specific evidence of his completion with 

the terms of the Settlement Agreement. Respondent has offered no valid basis to show why the 

Notice of Failure to Complete Settlement Agreement was either incorrect or otherwise legally 

defective. Mere argument that Respondent needs additional time to complete his cure does not 

suffice. The record demonstrates that Respondent failed to complete his obligations under the 

Settlement Agreement in the time provided.

Respondent’s breach of the Settlement Agreement by his failure to timely comply with its 

terms results in the self-effectuating consequences outlined under Section 4 and Section 7 of the 

Settlement Agreement. Respondent’s Coast Guard-issued merchant mariner credential is 

therefore REVOKED.

Nevertheless, Respondent may seek to avail himself of the administrative clemency 

process (outlined at 46 C.F.R. Part 5, Subpart L). The Coast Guard Investigating Officer can 
provide details about this process should Respondent wish to submit an application for clemency 

under those procedures.

WHEREFORE:

ORDER

IT IS HEREBY ORDERED THAT any and all Coast Guard-issued merchant mariner 

credentials held by Respondent Peter Garcia are REVOKED pursuant to the terms of the 

Settlement Agreement and his failure to complete the same.

SO ORDERED.

__________________________________________________

Hon. Parlen L. McKenna

Acting Chief Administrative Law Judge

U.S. Coast Guard

Date: July 30, 2012