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UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

DERRICK ANTHONY HIGH

Respondent

_________________________________

Docket Number 2018-0084

Enforcement Activity No. 5738054

DECISION AND ORDER

Issued: June 14, 2018

By Administrative Law Judge: Honorable Michael J. Devine

Appearances:

James T. Staton

USCG Sector Hampton Roads

And

Lineka Quijano, Esq.,

Suspension and Revocation National Center of Expertise

For the Coast Guard

Derrick Anthony High, Pro se

Respondent
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PRELIMINARY STATEMENT

In discharge of its duty to promote the safety of life and property at sea, the United 

States Coast Guard (Coast Guard) initiated this administrative action pursuant to 46 U.S.C. 

§§ 7703 and 7704, and conducted in accordance with the procedural requirements of 5 

U.S.C. §§ 551-559, 33 C.F.R. Part 20, and 46 C.F.R. Part 5. The Coast Guard began this 

proceeding on March 14, 2018, by filing a Complaint seeking to revoke the Merchant 

Mariner Credentials (MMC) issued to Derrick Anthony High (Respondent) for use of, or 

addiction to the use of dangerous drugs. Respondent submitted an Answer form dated March 

24, 2018, but left the majority of the form blank and failed to specifically admit or deny the 

allegations in the Complaint. Respondent did check the block to request settlement 

discussions.

The Complaint’s jurisdictional allegations state Respondent is the holder of 

MMC000282911. The factual allegations of the Complaint state: 

Charge 1 (Use of or addiction to the use of dangerous drugs)

The Coast Guard alleges that:

1. On April 5, 2017, Respondent took a pre-employment (applicant) drug test for 

Military Sealift Command, in accordance with Civilian Marine Personnel Instruction 

792 (CMPI 792), pursuant to Executive Order 12564, and Public Law 100-71 (PL 

100-71).

2. On April 5, 2017, a urine specimen was collected by Moises Ming of NowCare 

Princess Anne, Virginia Beach, VA, in accordance with Department of Health and 

Human Services (DHHS) Mandatory Guidelines for Federal Workplace Drug Testing 

Programs.

3. On April 5, 2017, Respondent signed a Federal Drug Testing Custody and Control 

Form for providing specimen ID#M0940212.

4. On April 11, 2017, urine specimen ID#M0940212 was analyzed pursuant to 

Mandatory Guidelines for Federal Workplace Drug Testing Programs by US Army 
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Forensic Toxicology Drug Testing Laboratory (FTDTL), Fort Meade, MD, a certified 

SAMHSA laboratory.

5. On April 11, 2017, urine specimen ID#M0940212 tested positive for marijuana 

metabolites as reported by FTDTL.

6. On April 14, 2017, after review and interpretation of the results, Dr. Robert Fierro the 

Medical Review Officer, reported that Respondent tested positive for Marijuana 

metabolites

7. Respondent has been the user of a dangerous drug as described by 46 USC § 7704(c).

On April 16, 2018, the undersigned Judge held a pre-hearing telephone conference in 

this matter. See 33 C.F.R. § 20.501. Respondent appeared on his own behalf (selfrepresented) at the telephone conference. The purpose of the conference was to discuss 

matters concerning scheduling of the hearing, address resources by which Respondent could 

obtain pro bono (no cost) counsel, and set deadlines for the exchange of discovery and 

witness and exhibit lists. See 33 C.F.R. § 20.807. During the telephone conference, the 

Coast Guard noted Respondent’s failure to respond to the allegations in the Complaint may 

result in the facts of the Complaint being deemed admissions. The undersigned Judge

explained to Respondent the need to submit a complete Answer that provided denial or 

admission of the allegations. The Judge directed the Coast Guard to provide another Answer 

form to Respondent and directed Respondent to submit a completed Answer form to amend 

his Answer. Following that conference, the undersigned Judge issued a Scheduling Order

directing Respondent to file an Amended Answer and explained “the need to appropriately 

answer both the jurisdictional and factual allegations on the Answer form by admitting or 

denying them.” The Judge directed Respondent to submit his Amended Answer by May 1, 

2018. To date, Respondent has not filed an Amended Answer. Since Respondent failed to 
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deny the allegations in his Answer, such allegations may be deemed admitted. See 33 C.F.R.

§ 20.308(c). 

On May 7, 2018, the Coast Guard submitted a Motion for Default Order (Motion) 

seeking a ruling that the failure to deny the allegations in the Complaint constituted 

admission of the allegations and requested the Court issue an Order revoking Respondent’s 

credentials. Since Respondent submitted an Answer, even though not in compliance with the 

regulations, the Coast Guard Motion is more properly considered as a Motion for a Judgment 

on the pleadings based on the requirement in the regulations contained in 33 C.F.R. § 

20.308(c). 

To date, no Amended Answer has been submitted by Respondent and no response to 

the Coast Guard Motion has been received from Respondent. The record shows the Coast 

Guard Motion was received by Respondent. The record also shows the Scheduling Order 

issued by the Court on April 16, 2018 was delivered to Respondent electronically and by 

U.S. mail to his last known address. Service is valid in keeping with 33 C.F.R. § 20.304. On 

June 13, 2018, the Coast Guard filed a Motion requesting another telephone conference to 

address procedural and evidentiary matters and Respondent’s failure to comply with 

deadlines. 

Although Respondent is appearing on his own behalf (pro se), he was given 

information about the potential for pro bono counsel and an opportunity to amend his Answer 

to comply with the regulations. I find that in keeping with the regulations, Respondent’s 

Answer submitted on March 24, 2018, which failed to deny the allegations, is deemed an 

admission to all the allegations in the Complaint. 33 C.F.R. § 20.308(c). Respondent also 

failed to contest the proposed sanction. 
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After careful review of the facts and circumstances of this case, including the 

applicable law, the Coast Guard’s Motion, considered as a Motion for Judgment on the 

Pleadings is GRANTED.

FINDINGS OF FACT

1. In a written Answer dated March 24, 2018, Respondent failed to either admit or deny 

the jurisdictional allegations of the Complaint including that he is the holder of 

MMC000282911.

2. In his written Answer dated March 24, 2018, Respondent neither admitted nor denied 

the factual allegations of the Complaint, which include allegations of a positive drug 

test for marijuana in violation of 46 U.S.C. § 7704 and 46 C.F.R. § 5.35.

3. To date Respondent has not provided any response to the Coast Guard’s Motion for a 

Decision and has not presented any good cause explanation for failure to submit an 

Amended Answer as directed during the telephone conference and the Scheduling 

Order of April 16, 2018.

DISCUSSION

The purpose of Coast Guard suspension and revocation proceedings is to promote 

safety at sea. 46 U.S.C. § 7701. An ALJ has the authority to suspend or revoke mariner 

credentials if a mariner commits certain violations. See 46 U.S.C. §§ 7703-7704. Under 

Coast Guard procedural rules and regulations, the Coast Guard bears the burden of proof and 

shall prove any violation by a preponderance of the evidence. See 33 C.F.R. §§ 20.701-702; 

see also Appeal Decision 2485 (YATES) (1989). In this case, the Coast Guard seeks to 

prove, by a preponderance of the evidence that Respondent is a user of or addicted to 
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dangerous drugs as shown by a positive drug test result for amphetamines from a random 

drug test taken on July 26, 2013 (Charge 1).

These administrative proceedings are remedial and not penal in nature and are 

intended to help maintain standards for competence and conduct essential to the promotion of 

safety at sea. 46 C.F.R. § 5.5. The Court is bound by the regulations for these matters and 

must construe the procedural regulations so as to secure a just, speedy and inexpensive 

determination. 33 C.F.R. § 20.103(a). The regulations also provide that absent a specific 

provision in this part, the Federal Rules of Civil Procedure (Fed. R. Civ. P) control. 33 

C.F.R. § 20.103(c). While the Coast Guard regulations do not contain a specific rule for a 

judgment on the pleadings, such a process is covered by Fed.R.Civ.P. Rule 12(c). The Coast 

Guard motion relies on 33 C.F.R. § 20.308(c) which results in finding that Respondent’s 

Answer deems all allegations in the Complaint admitted and therefore the Coast Guard is 

entitled to judgment on the pleadings.1 

In these proceedings, a respondent’s admissions are sufficient to support a finding 

that an allegation is proved. See Appeal Decision 2654 (HOWELL) (2005). Respondent’s 

deemed admissions also obviates the need for the Coast Guard to otherwise prove or 

establish a prima facie case, and constitutes a waiver of all non- jurisdictional defects and 

defenses. Appeal Decision 2385 (CAIN) (1985). Accordingly, there are no disputed issues 

of material fact based on the pleadings and the Coast Guard’s Motion for Default considered 

as a Motion for Judgment on the Pleadings is GRANTED.

 

1 The Coast Guard’s Motion could have also been filed as a Motion for Summary Decision. See 33 C.F.R. § 

20.901. Since the Answer admits to all the factual and jurisdictional allegations, there are no genuine issues of 

material fact in dispute and the Coast Guard is entitled to a decision as a matter of law. 
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ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Respondent Derrick Anthony High and the subject matter of this proceeding fall 

within the jurisdiction vested in Coast Guard under 46 U.S.C. § 7704(c).

2. The charge of use or addiction to dangerous drugs is PROVED based on 

Respondent’s deemed admission of all Factual and Jurisdictional allegations and 

failure to demonstrate cure under 46 U.S.C. § 7704(c).

SANCTION

One of the major purposes of suspension and revocation proceedings and trial-type 

hearings is to protect lives and properties against actual and potential dangers. 46 U.S.C. § 

7701(a). Congress enacted 46 U.S.C. § 7704(c) and related statutes with the express intent of 

removing those individuals using a dangerous drug from service on board United States

merchant marine vessels. See House Rep. 338, 98th Cong., 1st Sess. 177 (1983); see also

Appeal Decision 2634 (BARRETTA) (2002). Under 46 U.S.C. § 7704(c), revocation of a 

merchant mariner’s credentials is required when it is shown on a motion or proceeding that 

the merchant mariner is a user of, or addicted to, a dangerous drug unless the mariner 

provides satisfactory evidence of cure of all dangerous drug use. See generally 46 C.F.R. §§ 

5.59 and 5.569.2

In Appeal Decision 2535 (SWEENEY) (1992), the Commandant held that a merchant 

mariner could establish proof of cure by showing that he had successfully completed a drug 

abuse rehabilitation program and that he had not had any associations with drugs for at least 

one year after completing the drug rehabilitation program, as evidenced by successful 

 

2 A “dangerous drug” is “a narcotic drug, a controlled substance, or a controlled-substance analog (as defined in 

section 102 of the Comprehensive Drug Abuse and Control Act of 1970 (21 U.S.C. 802)).” See 46 C.F.R. § 

16.105. By definition, marijuana (also known as “tetrahydrocannabinol” or “THC”) is recognized as a 

“dangerous drug”. See Id.; 21 U.S.C. §§ 802(6) and (16); 21 U.S.C. § 812(c)(17) (listing marijuana as a 

Schedule I controlled substance).
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participation in an active drug abuse monitoring or testing program which incorporates 

random, unannounced drug testing during that year. In later cases, the Commandant also 

held where a respondent demonstrates “substantial involvement in the cure process by proof 

of enrollment in an accepted [drug] rehabilitation program” a judge may stay the revocation 

and continue the hearing. Appeal Decision 2634 (BARRETTA) (2002); see also

Commandant Review Decision 18 (CLAY). In this case Respondent has not provided any 

evidence of cure or substantial involvement in the cure process, therefore REVOCATION is 

the only proper order. See 46 C.F.R. § 5.569.

While revocation is a severe order, it is not necessarily permanent. Respondent’s 

attention is directed to 33 C.F.R. § 20.904(f), which allows a respondent, within three (3) 

years or less after his Coast Guard issued license or document is revoked, to file a written 

motion to reopen this matter and seek modification of the order of revocation upon a showing 

that the order of revocation is no longer valid and the issuance of a new license, certificate, or 

document is compatible with the requirement of good discipline and safety of lives and 

property at sea. In cases such as this one, the Revocation Order may be modified upon a 

showing by Respondent that he: (1) has successfully completed a bona fide, acceptable drug 

abuse rehabilitation program; (2) has demonstrated complete non-association with dangerous 

drugs for a minimum of one year following completion of a drug rehabilitation program; and 

(3) is actively participating in a bona fide drug abuse monitoring or testing program. See

generally 46 C.F.R. § 5.901(d). The drug abuse monitoring program must include random, 

unannounced testing during that year. Appeal Decision 2535 (SWEENEY).

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3 After three years, Respondent is required to apply directly with the Commandant of the U.S. Coast Guard in 

Washington, D.C. for issuance of a new license. See 46 C.F.R. §§ 5.901 - 905.
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WHEREFORE,

ORDER

IT IS HEREBY ORDERED, the Coast Guard Motion for Default, considered as a 

Motion for Judgement on the Pleadings, is GRANTED.

IT IS HEREBY FURTHER ORDERED, all of Respondent's Coast Guard issued 

Merchant Mariner Credentials including MMC000282911 are REVOKED. 

IT IS HEREBY FURTHER ORDERED, the Coast Guard Motion for a Telephone 

Conference is DENIED.

IT IS HEREBY FURTHER ORDERED, the Hearing scheduled to commence at 

9:30 AM on July 6, 2018 in Norfolk, Virginia is CANCELLED.

IT IS FURTHER ORDERED, Respondent shall immediately deliver by mail or in 

person his MMC and all other Coast Guard issued licenses, certificates or documents to the 

Coast Guard at USCG Sector Hampton Roads, attention of Mr. James T. Staton, 200 Granby 

Street, Suite 700, Norfolk, VA 23510. The period of revocation shall begin on the date 

Respondent deposits his Credentials with the Coast Guard. If you (Respondent) 

knowingly continue to use your credentials while they are revoked, you may be subject to 

criminal prosecution.

PLEASE TAKE NOTICE, under 33 C.F.R. 20.904(a) for good cause shown, an 

Administrative Law Judge may reopen the record of a proceeding to take added evidence. 

Parties may file a motion to reopen the record with the ALJ Docket Center, 40 S. Gay Street, 

Room 412, Baltimore, MD 21202, Facsimile (410) 962-1746. Service of this Decision on the 
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parties and/or parties’ representative(s) serves as notice of appeal rights set forth in 33 C.F.R. 

§§ 20.1001 – 20.1004. (Attachment A).

__________________________________________________

Michael J. Devine

US Coast Guard Administrative Law Judge

Date: 
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Attachment A

33 C.F.R. PART 20

SUBPART J

APPEALS

§ 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.

§ 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. 

§ 20.1003 Procedures for appeal. 
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(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. 

§ 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.