UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

UNITED STAJES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

JOSE M. RIVERA 

Respondent. 

Docket Number CG S&R 02-0448 

CG Case No. 1643836 

ORDER DENYING MOTION FOR APPROVAL OF SETTLEMENT 

AGREEMENT AND ENTRY OF CONSENT ORDER 

Issued: September 10, 2002 

Issued by: Edwin M. Bladen, Administrative Law Judge 

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This case is now before this administrative law judge (ALJ) on a joint Motion for 

Approval of a Settlement Agreement and Entry of a Consent Order to be approved as a 

settlement of the case under 33 CFR § 20.502 (2002). For reasons stated below, the 

parties' joint motion is DENIED. 

The Coast Guard initiated this administrative action seeking revocation of 

Merchant Mariner Document Number 582-15-1094 issued to respondent Jose M. Rivera 

by filing a complaint dated July 10, 2002. The complaint alleges respondent violated 46 

USC 7703 and committed an act of misconduct in violation of 46 CFR 5.27 by 

submitting a license application for renewal of an Able Seaman [Unl] Merchant Mariner · 

Document which had been previously applied for based on fraudulent information. 

On August 23, 2002, the parties entered into a written settlement agreement in 

which, in pertinent part states: 

Order- 1 

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(1) Respondent agreed to execute a Voluntary Surrender of Merchant Mariner's 

Document No. 582-15-1 094; 

(2) The Coast Guard agreed to issue a Merchant Mariner Document for an 

Ordinary Seaman [OS/Wiper (FH)] to Respondent. 

(3) The Coast Guard agreed to waive the one (1) year waiting period required for 

voluntary surrenders and afford the Respondent the opportunity to 

immediately re-apply for the issuance of any merchant mariner's license for 

which the appropriate qualifications and credentials have been obtained; 

( 4) The Coast Guard agreed to a three month outright suspension of 

Respondent's document, accrued form the expiration of the document on 

AprillO, 2002 thru July 10,2002 and the parties agreed to a six (6) month 

probation imposed against the Respondent following acceptance of the 

Settlement Agreement; and 

( 5) The parties contemplated the filing of an amended settlement agreement, 

charging Respondent with Misconduct that would remain subject to 

adjudication. 

The settlement agreement was accompanied with the amended complaint dated August 

23, 2002, which charged the Respondent with Misconduct and contained language 

similar to that in the original complaint, except that the amended complaint states that the 

submission of the fraudulent information on the license application constitutes a violation 

of 18 USC§ 1001. 

In these proceedings, settlement agreements are subject to the approval of the 

presiding ALJ. See generally 33 CFR 20.502. Although there exists a strong judicial 

policy favoring settlement of disputes, an ALJ should not approve a settlement agreement 

that is not in accordance with law and which is not fair, reasonable, and in the best 

interests ofthe parties. See Appeal Decision 2623 (LOVE). The purpose of a settlement 

is to resolve all matters needing to be adjudicated. See 33 CFR 20.502. 

In this case, the parties proposed settlement agreement is defective for two 

reasons. First, the parties' s.ettlement agreement is ambiguous. The settlement agreement 

Order- 2 
purports to settle all administrative claims and causes of action alleged in the complaint. 

However, paragraph 4 of the settlement agreement contemplates the filing of an amended 

complaint that charges the Respondent with one count of misconduct, which will be 

subject to adjudication. The misconduct charge under the amended complaint is 

essentially the same allegation as contained in the original complaint regarding the 

fraudulent license application. Therefore, the settlement agreement fails to appropriately 

dispose of the only disputed issue in this case. 

Second, the settlement agreement calls for a "voluntary surrender." A "voluntary 

surrender" is a device available to a respondent in order to completely avoid going to a 

hearing. See generally 46 CPR§ 5.203. A voluntary surrender involves the permanent 

relinquishment of all rights to a license/document in lieu of a hearing. !d. A voluntary 

surrender is equivalent to a revocation. 46 CPR§ 5.205(d). The only means for a 

mariner to have a license/document restored following voluntary surrender is through the 

administrative clemency process. 46 CPR§ 5.901. See also COMDTINST M16000, 

Marine Safety Manual (MSM), Vol. 2. The right to return merchant mariner credentials 

following a voluntary surrender is solely reserved by the Commandant. !d. Accordingly, 

a Marine Safety Office is without authority to waive the waiting period for issuance for a 

new license following a voluntary surrender. 

ORDER 

.JT IS HEREBY ORDERED that the parties joint Motion for Approval of a 

Settlement Agreement and Entry of a Consent Order is DENIED. 

DATED: September 10,2002. 

Order- 3 

EDWIN M. BLADEN 

Administrative Law Judge