UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

BROOKS MCLEAN MITCHELL 

Respondent

_________________________________

Docket Number 2016-0315

Enforcement Activity No. 5730483

DECISION AND ORDER

Issued: June 07, 2017

By Administrative Law Judge: Honorable Bruce Tucker Smith

Appearances:

For the Coast Guard;

LT Israel J. Parker

Sector Northern New England

Lineka N. Quijano

National Center of Expertise

For the Respondent;

Brooks Mclean Mitchell, Pro se
2

I. PRELIMINARY STATEMENT

On April 6, 2017, the court convened an adversarial due–process hearing in Jacksonville, 

Florida to hear the Coast Guard’s evidence and testimony in support of the Complaint filed 

against Brooks McLean Mitchell (Respondent). The Complaint alleged that Respondent had 

been convicted of a criminal “offense that would prevent the issuance or renewal” of a Merchant 

Mariner’s Credential (MMC), as per the provisions of 46 USC §7703(2). The Complaint sought 

revocation of Respondent’s MMC as a sanction.

Lineka Quijano, Esq. and David Barnes represented the United States Coast Guard (Coast 

Guard). Respondent appeared pro se. 

The Coast Guard called two witnesses and offered twelve items of documentary evidence 

(including a CD); eight of which were admitted. (Atch A). Respondent neither testified nor 

offered any items of documentary evidence. However, Respondent did actively participate, pro 

se, in his own defense. The court retrieved Respondent’s MMC and marked it as ALJ Ex. I.

This Decision and Order finds the Coast Guard PROVED the allegations in the 

Complaint and further directs that Respondent’s MMC be REVOKED.

1

 

II. PROCEDURAL HISTORY

The procedural history of this case is lengthy and involved. Because of Respondent’s 

status as a pro se litigant, the court’s handling of this case is largely informed by the apparent 

guidance set forth in Appeal Decision 2697 (GREEN)(2011), which suggests the court “make 

reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights 

because of their lack of legal training.”

 

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

(Tr. at __ ). Citations referring to Coast Guard Exhibits are as follows: CG 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.). A list of all exhibits offered 

and admitted, together with the names of the parties’ respective witnesses, are set forth in Attachment A. 
3

On October 11, 2016, the Coast Guard filed a Complaint against Respondent alleging that 

on September 29, 2016, Respondent was convicted of a violation of Florida Statutes Annotated, 

title XLVI, §827.03(c), “child abuse,” a third–class felony, by the Circuit Court, Seventh Judicial 

Circuit, Volusia County, Florida. The Complaint alleged that Respondent’s conviction was “an 

offense that would prevent the issuance or renewal” of a Merchant Mariner’s Credential, as per 

the provisions of 46 USC §7703(2). The Complaint also requested revocation of Respondent’s 

MMC as a sanction for Respondent’s violation.

On October 23, 2016, Respondent filed a written Answer to the Complaint, admitting all 

of the jurisdictional allegations and all of the factual allegations on the Complaint. Respondent 

included written information with his Answer, including a two–page typewritten report from a 

treating psychiatrist, which suggested Respondent “was on medication that contributed to my 

actions that led to my conviction.”2 On October 27, 2016, the Coast Guard filed a Motion for 

Summary Decision, based largely upon Respondent’s Admissions of both the jurisdictional and 

factual allegations in the Complaint. The court deferred ruling on that Motion, again informed 

by the apparent guidance in GREEN, supra.

Thereafter, the parties and the court engaged in several pre–hearing telephonic 

conferences. The general subject matter of those interim conferences was to discuss 

Respondent’s claimed efforts to retain legal counsel to assist him in his petition to overturn his 

criminal conviction. 

On December 7, 2016, the court convened a telephonic pre–hearing conference with the 

parties. Respondent again informed the court of his ongoing efforts to obtain an attorney to 

assist him with his petition to overturn his criminal conviction. In an abundance of caution for 

 

2 Respondent offered no such proof at the April 6, 2017 hearing.
4

the interests of the pro se Respondent, the court then scheduled another telephonic pre–hearing 

conference for December 19, 2016, to again discuss Respondent’s efforts to retain counsel.3

On December 19, 2016, the court convened another telephonic pre–hearing conference 

with the parties. Unfortunately, Respondent did not attend or participate in the telephonic pre–

hearing conference, despite having received written notice to do so. Accordingly, the Coast 

Guard made a spoken Motion for Default. The court denied the Coast Guard’s spoken Motion, 

but on December 19, 2016, the court entered a written Order directing Respondent to show 

cause, before January 7, 2017, in writing, why the Coast Guard’s Motion for Summary Decision 

should not be granted. 

On December 23, 2016, however, the Coast Guard filed a written Motion for Default 

Order.

On January 4, 2017, Respondent sent an ex parte e–mail to the court (which was then 

forwarded to the Coast Guard) advising that he had retained counsel to assist him in his petition 

to overturn his criminal conviction. Respondent’s e–mail further indicated that the un–named 

attorney would not represent Respondent in the instant administrative proceedings instituted by 

the Coast Guard.

On January 17, 2017, the court convened a telephonic pre–hearing conference with the 

parties to discuss the Coast Guard’s pending Motions for Default and for Summary Decision. 

During the telephonic pre–hearing conference, the court DENIED the Coast Guard’s December 

23, 2016, Motion for Default, despite the fact Respondent had previously admitted both the 

jurisdictional and factual allegations in the Complaint and despite Respondent’s failure to appear 

at the December 19, 2016, telephonic pre–hearing conference. GREEN, supra. The court then 

instructed the Coast Guard to file its Motion for Summary Decision anew, to be “supported by 

 

3 Throughout the pendency of this litigation, the court conducted several pre-hearing telephonic conferences 

(November 7, 2016; December 6, 2016; January 17, 2017) to afford Respondent opportunities to retain counsel to 
5

affidavit(s) and appropriate legal research.” The court also directed Respondent to file his 

written response to the Coast Guard Motion for Summary Decision. 

On February 10, 2017, after a lengthy review of both the Coast Guard’s Motion for 

Summary Decision and supporting affidavits and Respondent’s materials, the court DENIED the 

Motion for Summary Decision and directed that this matter be set for hearing.

Thereafter, on March 6, 2017, the court set April 6–7, 2017, as the dates for hearing the 

Coast Guard’s evidence against Respondent. 

On March 22, 2017, the court published a detailed Order, specifically informing 

Respondent of his obligation to comply with the court’s discovery Orders and further informed 

Respondent that his penchant for communicating with the court, ex parte, via e–mail, ran afoul 

of his obligation to file such documents formally as per previously–described procedure. 

Moreover, the same Order specifically identified the central legal issue to be resolved in the 

pending hearing.4

On April 6, 2017, the court convened the adversarial due–process hearing in Jacksonville, 

Florida. The hearing was concluded in one day.

On April 10, 2017, Respondent again sent an ex parte e–mail to the court. That e–mail 

was immediately forwarded to the Coast Guard for its consideration. The substance of 

Respondent’s April 10, 2017 e–mail was, essentially, a Motion to Suppress items of 

documentary evidence obtained by the Coast Guard from the civilian prosecutorial authorities; 

some of which was offered and admitted into evidence by the court at the April 6, 2017 hearing. 

Respondent’s improvident Motion was and is DENIED. 

III. FINDINGS OF FACT

 

assist him in both the instant administrative action and in his underlying criminal case. 

4

“The issue in this case is whether the Coast Guard may take action against Respondent’s MMC under 46 USC 

§7703(2), based on a conviction that would have precluded the issuance of renewal of Respondent’s MMC.” 
6

These findings of fact are based on a thorough and careful analysis of the documentary 

evidence, the testimony of witnesses, and the entire record taken as a whole: 

1. Respondent is the holder of MMC 000359743. (Answer at 1; ALJ Ex. I).

2. Because Respondent is a holder of an MMC, the court has subject-matter jurisdiction 

over this suspension and revocation proceeding alleging a violation of 46 USC §7703. 

Id.

3. On September 29, 2016, the Circuit Court, Seventh Judicial Circuit, Volusia County, 

Florida, convicted Respondent of violating Florida Statues Title XLVI, section 

827.03(c), Child Abuse, a third degree felony. (CG Ex. 4).

4. Respondent’s conviction results from his knowing use of “a computer, the Internet 

and a cell phone to solicit a child whom the Defendant believed to be a thirteen (13) 

year old girl with the intent to engage in some form of unlawful sexual activity with 

that child.” (CG Ex. 2). 

5. Florida law enforcement officials apprehended Respondent after he solicited a law 

enforcement official acting as a thirteen (13) year old girl over the phone and internet. 

(Tr. at I-73). 

6. After his conviction, Respondent was sentenced to five years’ probation and was 

made subject to an “Order of Conditions of Sex Offender Probation 948.30.” (CG Ex. 

5). 

7. Florida also ordered Respondent to complete the state’s sex offender program and 

that he be prohibited from being in contact with or near a child under the age of 18. 

(CG Ex. 18). 

8. As of the date of the hearing, less than a year has lapsed since Florida Convicted 

Respondent of Child Abuse. (CG Ex. 4). 

IV. DISCUSSION

The purpose of Coast Guard Suspension and Revocation proceedings is to promote safety 

at sea. See 46 USC §7701. Pursuant to 46 CFR §5.19, an ALJ holds the authority to suspend or 

revoke a license or certificate in a hearing for violations arising under 46 USC §7703. 

Determining the weight of the evidence and making credibility determinations as to the 

evidence is within the sole purview of the ALJ. See Appeal Decision 2640 (PASSARO) (2003). 

Additionally, the ALJ is vested with broad discretion in resolving inconsistencies in the 
7

evidence, and findings do not need to be consistent with all of the evidence in the record as long 

as there is sufficient evidence to reasonably justify the findings reached. Id.; Appeal Decision 

2639 (HAUCK) (2003).

A. Jurisdiction 

“The jurisdiction of administrative bodies is dependent upon the validity and the terms of 

the statutes reposing power in them.” Appeal Decision 2620 (COX) (2001) (quoting Appeal 

Decision 2025 (ARMSTRONG) (1975)). “Where an Administrative forum acts without 

jurisdiction its orders are void.” Appeal Decision 2025 (ARMSTRONG) (1975). Therefore, 

establishing jurisdiction is critical to the validity of a proceeding. Appeal Decisions 2677 

(WALKER) (2008); 2656 (JORDAN) (2006). 

In this case, Respondent admitted all of the jurisdictional allegations in the Complaint 

and he raised no objection to the court’s jurisdiction at the hearing. Respondent presented his 

MMC to the court at the hearing; a tacit admission that he is a credentialed mariner subject to the 

court’s authority. (ALJ Ex. I). The Coast Guard did not, by contrast, present any affirmative 

evidence in support of the jurisdictional allegations in the Complaint. (Query the significance of 

these events in light of GREEN, supra.)

B. Burden of Proof

In this case, like all Suspension and Revocation cases, the Coast Guard bears the burden 

of proof to establish the requisite facts mandated by 46 USC §7703, and 46 CFR Part 5 and Part 

10, Subpart B; 33 CFR Part 20. The Administrative Procedure Act (APA), 5 USC §§551–559, 

applies to Coast Guard Suspension and Revocation hearings before United States ALJs. The 

APA authorizes imposition of sanctions if, upon consideration of the entire record as a whole, 

the charges are supported by reliable, probative and substantial evidence. 5 USC §556(d). The 

Coast Guard bears the burden of proof to establish the charges are supported by a preponderance 

of the evidence. 33 CFR §§20.701, 20.702(a). Similarly, a respondent bears the burden of proof 
8

in asserting any affirmative defense by a preponderance of the evidence. 33 CFR §§20.701, 

20.702; Appeal Decisions 2640 (PASSARO) (2003); 2637 (TURBEVILLE) (2003). “The term 

substantial evidence is synonymous with preponderance of the evidence as defined by the U.S. 

Supreme Court.” Appeal Decision 2477 (TOMBARI) (1988) (citing Steadman v. SEC, 450 U.S. 

91, 107 (1981)). 

The burden of proving a fact by a preponderance of the evidence “simply requires the 

trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence before 

[he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s 

existence.’” Concrete Pipe & Products of Cal., Inc. v. Constr. Laborers Pension Trust for S. 

Cal., 508 U.S. 602, 622 (1993) (quoting In re Winship, 397 U.S. 358, 371–72 (1970) (Harlan, J., 

concurring) (brackets in original)). 

Title 46 USC §7703(2) specifies that a mariner’s credential may be suspended or revoked 

if that mariner was convicted of a criminal offense that would have prevented the original 

issuance or re–issuance of an MMC.

Therefore, at hearing, the Coast Guard was obligated to prove by credible, reliable, 

probative and substantial evidence that Respondent more–likely–than–not was convicted of a 

criminal offense that would have prevented the issuance of an MMC.

C. Evidence

The facts of this case are straightforward, simple and uncontested. The Coast Guard 

proved that on September 29, 2016, Respondent was convicted of a violation of Florida Statutes 

Annotated §827.03(c), “child abuse,” a third–degree felony, by the Circuit Court, Seventh 

Judicial Circuit, Volusia County, Florida. (CG Ex. 3). 5 The gravamen of the criminal 

prosecution was that Respondent “knowingly used a computer, the Internet and a cell phone to 
9

solicit a child whom the Defendant believed to be a thirteen (13) year old girl with the intent to 

engage in some form of unlawful sexual activity with that child.” (CG Ex. 2). The facts 

revealed that Respondent had been the subject of a law–enforcement “sting” operation and the 

“thirteen (13) year old girl” was, in reality, a law–enforcement officer. After his conviction, 

Respondent was sentenced to five years’ probation and was made subject to an “Order of 

Conditions of Sex Offender Probation 948.30.” (CG Ex. 5). 

The Coast Guard produced two witnesses who testified that Respondent’s conviction was 

of a criminal “offense that would prevent the issuance or renewal of” an MMC. 

Respondent offered neither testimony nor evidence at the hearing. 

D. Law 

The central focus of this court’s inquiry is one of statutory interpretation. 

Two phrases in Title 46 USC §7703(2) are fraught with uncertainty, particularly as 

applied to the facts at bar. The statute provides that a mariner’s MMC “may be suspended or 

revoked if the holder is convicted of an offense that would prevent the issuance or renewal of” 

that MMC. (emphasis added). 

Neither the Coast Guard nor the Commandant have promulgated regulations or issued 

appellate decisions which provide specific interpretive guidance in cases brought under 46 USC 

§7703(2).6 Thus, the court here resorts to the classic rules of statutory interpretation for 

instruction. 

 

5 Respondent was also convicted of two violations of Florida Statute Annotated §934.215.3, “unlawful use of a twoway communication device,” both third-degree felonies. The court took official notice of all relevant Florida 

criminal statutes. 

6 Normally, an agency’s interpretation is entitled to deference, if Congress has empowered that agency with that 

authority. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). In Appeal Decision 

2678 (SAVOIE) (2008), the Commandant interpreted his duty under “Chevron Deference,” saying: “when a 

reviewing court considers an agency’s construction of a statute which it administers, the court is confronted with 

two questions: (1) whether ‘Congress has directly spoken to the precise question at issue;’ and (2) if ‘the statute is 

silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's 

interpretation is based on a permissible reading of the statute.’” Id. Because neither the Coast Guard, nor the 

Commandant, have provided guidance in this area, the court must sail these waters alone. 
10

“When the import of the words Congress has used is clear, as it is here, we need not 

resort to legislative history, and we certainly should not do so to undermine the plain meaning of 

the statutory language.” See United States v. Gonzales, 520 U.S. 1 (1997 ) (emphasis added); 

Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994) (“There are, we recognize, contrary 

indications in the statute's legislative history. But we do not resort to legislative history to cloud 

a statutory text that is clear.”); Barnhill v. Johnson, 503 U.S. 393, 401(1992) (“To begin, we note 

that appeals to statutory history are well taken only to resolve statutory ambiguity.”); United 

States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (en banc) (“Where the language Congress 

chose to express its intent is clear and unambiguous, that is as far as we go to ascertain its intent 

because we must presume that Congress said what it meant and meant what it said.”).

“an offense”

In regard to the phrase “an offense,” does the statute mean “this particular conviction for 

child abuse by this particular Respondent” or does the statute mean “any and all convictions for 

child abuse by any mariner?” Applying the guidance of Gonzales, supra, the court believes 

Congress plainly intended the Coast Guard to examine the particular facts and circumstances 

unique to this Respondent’s conviction vis a vis his safety and suitability for maritime service. 

This is certainly consistent with the procedure employed by the Coast Guard in its internal 

administrative decision–making about a mariner’s application for a credential, infra. Thus, the 

court interprets the phrase “an offense” to mean “this particular conviction for child abuse by this 

particular Respondent.”

“would prevent”

Of even greater concern in this case is the phrase: “would prevent” –– because it is upon 

the interpretation and application of this phrase that the Coast Guard’s case succeeds or fails. 

Applying the guidance in Gonzales, supra, the court reads “would” to mean that which is 

affirmative, unconditional and directive. Webster’s Third New International Dictionary supports 
11

this interpretation; explaining that “would” is the past tense of “will.” The term does not mean 

“might, should, or could.” Thus, the term “will” and “would”

describe an absolute and permanent condition.

Likewise, Webster’s defines “prevent” as “that which deprives of power or hope of 

acting, operating, or succeeding in a purpose; to keep from happening; make impossible through 

advance provisions.” There are no conditions subsequent which ameliorate the operation of the 

word. This court believes the plain meaning of “prevent” is to permanently stop, preclude, 

forbid or deny.

Accordingly, the phrase “would prevent,” then, does not mean “might prevent;” it does 

not mean “could prevent;” it does not mean “should prevent.” It means it “will” prevent. 

Neither does the phrase mean “would delay, or slow, or condition, or retard.” The statutory 

phrase plainly describes a criminal conviction that permanently precludes the issuance or 

reissuance of an MMC. 

Query: Does the phrase “would prevent” mean “in this particular case?” Or, does the 

phrase mean “in every such case?” Given that this court has previously adopted an interpretation 

that looks at the unique facts and circumstances of the instant case, the court interprets and 

interlineates the entire phrase to read a conviction that “would prevent issuance in this particular 

case.”

It is against these definitions that the Coast Guard’s witness testimony is measured. 

In this case, the Coast Guard was obliged to prove that Respondent’s criminal conviction 

was one that would prevent the issuance or renewal of Respondent’s MMC. Toward that end, 

the Coast Guard relied principally upon the testimony of Mr. James Crouse. 

Mr. Crouse serves as the Chief of the Coast Guard’s Safety and Suitability Branch. In his 

job, Mr. Crouse supervises the Coast Guard’s decision–making function in regard to the 

issuances of Coast Guard credentials. Mr. Crouse explained that the decision to grant or deny 
12

original issuance of an MMC depends, fundamentally, on whether an applicant is a “safe and 

suitable mariner.” (Tr. at 94 ).7

Mr. Crouse’s testimony is essential to the Coast Guard’s case, because there is no 

definitive list of crimes that prevent issuance or reissuance of a credential to be found in any 

regulation or statute. Instead, cases brought under 46 USC §7703(2), essentially call for a 

hypothetical, somewhat speculative, retrospective analysis of whether a given respondent would 

have been granted or denied an MMC, had the Coast Guard known of his criminal conviction at 

the time he/she applied for an original issuance or re–issuance of that MMC. 

Mr. Crouse cited the definition of a “safe and suitable mariner” found in 46 CFR 

§10.107(b). (Tr. at 95). That regulation asks in part, whether the person “would clearly be a 

threat to the safety of life or property, detrimental to good discipline, or adverse to the interests 

of the United States.” Id. The regulation establishes the requirement that the Coast Guard 

establish a nexus, or connection, between the criminal act and safety at sea.

Mr. Crouse also relied, in part, upon COMDTINST M16000.8B, Marine Safety Manual, 

Volume III, Marine Industry Personnel (Manual). (Tr. at 95, 97). The court notes specifically 

that the Manual is not a duly-promulgated Coast Guard regulation subject to public notice and 

comment prior to promulgation, and therefore lacks the force of law. Perez v. Mort Bankers 

Ass’n, 575 U.S. ___ (2015). Nevertheless, Chapter 3 of the Manual identifies seven criteria 

against which a respondent’s criminal conduct is to be evaluated. The fifth of the seven criteria 

upon which Mr. Crouse relies also seeks a nexus between the underlying offense and the safe 

operation of a vessel, requiring the Coast Guard to evaluate: “The extent of the connection 

between the crime and the MMC and the safe and legal operation of a vessel.” Id. 

Mr. Crouse testified that if an applicant’s record reveals a criminal conviction, the Coast 

Guard employs an “assessment period” as a tool to evaluate that mariner’s suitability, in light of 

 

7

See 46 USC §§7101 – 7705.
13

the regulatory criteria. (Tr. at 115, 129). Mr. Crouse explained that an assessment period is a 

period of time that begins to run forward from the date of the applicant’s criminal conviction. 

(Tr. at 117 ). Mr. Crouse further explained that the Coast Guard evaluates the applicant’s record 

and conduct during the assigned assessment period. (Tr. at 116 – 117). Mr. Crouse also testified 

that the Coast Guard frequently awards an applicant a credential if, during the assessment period, 

there are no other adverse factors bearing on a mariner’s suitability for sea service. (Tr. at 117 –

118). 

Mr. Crouse also testified that the nature of the criminal conviction dictates the length of 

the assigned assessment period. (See generally, Tr. at 118). 

Thus, the Coast Guard uses the assessment period as a decision–making tool in deciding 

who is a “safe and suitable mariner,” by examining the applicant’s criminal past and looking for 

a nexus, or connection, between that applicant’s criminal conviction(s) and safety at sea. 

Mr. Crouse also relied on Table 1 of 46 CFR § 10.211(g), entitled “Guidelines for 

Evaluating Applicants for MMCs Who Have Criminal Convictions.” (Tr. at 96). The Table, 

which is not all–inclusive, lists major categories of criminal activity, along with the minimum 

and maximum assessment periods for each. (Tr. at 96). Moreover, the Table does not list “child 

abuse” as a potentially disqualifying offense; whereas the Table does list “assault” as a 

potentially disqualifying offense. (Tr. at 103). 8

Mr. Crouse testified that in the instant case, he reviewed Florida criminal court orders 

pertaining to Respondent’s conviction, a probation order, a charging affidavit, and copies of the 

Florida criminal statutes Respondent violated. (Tr. at 100). Mr. Crouse testified that he 

specifically reviewed Coast Guard Exhibits 2, 3, 4, and 5. (Tr. at 101). 

 

8 The underlying facts of the instant case do not reveal any actual assault or battery. Respondent’s conduct was, at 

most, an attempted assault or an attempted battery. 
14

Mr. Crouse further testified, hypothetically, that had Respondent (bearing the same 

conviction for child abuse) applied for an original issuance or re–issuance of a credential, a one–

year assessment period would have been assigned, commencing on September 29, 2016. (Tr. at 

103 – 107, 120).9 

Mr. Crouse then explained that as of the date of the hearing, Respondent was still within 

the one–year assessment period assigned to his conviction and, moreover, Respondent is not a 

safe and suitable person to serve as a merchant mariner. (Tr. at 104 – 107). Mr. Crouse 

specifically pointed to the Florida court’s Order that Respondent complete the state’s sex 

offender program and that he be prohibited from being in contact with or near a child under the 

age of 18. (Tr. at 105). 

The Coast Guard asserts that because Respondent’s one–year assessment period has not 

expired...Respondent would be prevented from receiving a credential. The Coast Guard also 

asserts that because there is a nexus between Respondent’s predatory conduct and the safety of 

children at sea, Respondent would have been denied issuance of a credential, as per Coast Guard 

regulator guidelines. 

The Coast Guard also called LT Israel Parker as a witness. LT Parker testified that he 

currently serves as Chief of the Investigations Division for Coast Guard Sector Jacksonville, 

Florida since June 2015. (Tr. at 22 – 23). LT Parker has served more than eighteen years on 

active Coast Guard duty, including eight years’ service in the field of marine safety 

investigations, where he has conducted nearly 500 personnel investigations. (Tr. at 22 – 23, 85). 

In his current job, he oversees marine casualty investigations and suspension and revocation 

 

9 Mr. Crouse explained that although child abuse is not specifically listed as an offense in Table 1 of 46 CFR § 

10.211(g), “assault” (which is listed in the Table) he felt “child abuse” is a sufficiently analagous crime and bears a 

one-year assessment period. The court notes that the Table does list “Sexual assault (rape, child molestation)” and 

assigns a minimum five-year assessment period for offenses like the one for which Respondent was convicted. Mr. 

Crouse did not explain why the facts of the instant case were more analagous to simple “asault” than the moreappropriate “child molestation.” Thus, the Coast Guard’s decision-making process is subject to criticism that it is 

arbitrary and entirely subjective.
15

investigations. (Tr. at 23). Thus, LT Parker’s insights concerning maritime safety are of 

particular value to the court. LT Parker testified that he investigated the facts and circumstances 

which led to Respondent’s criminal conviction. (Tr. at 24 – 30). LT Parker testified that was 

present at Respondent’s criminal sentencing hearing on September 29, 2016, and personally 

witnessed Respondent enter his plea and accept the conditions of the sex offender probation. (Tr. 

at 25). Thereafter, LT Parker testified that, in his opinion, Respondent was not a “safe and 

suitable mariner.” (Tr. at 61). LT Parker drew a nexus between the facts underlying 

Respondent’s conviction and his unsuitability for credentialed maritime service, saying: 

...his credential is specifically designed to take passengers out on the waterway, 

and with that you're entrusting these, you know, merchant mariners, deputizing 

them, if you will, to carry out, you know, U.S. laws and protect the safety and 

well–being of, you know, our mothers and grandmothers and our children. Based 

on the evidence that I saw surrounding Mr. Mitchell, I would not feel comfortable 

sending, you know, children out into that environment His operation is, again, 

passengers, you know...You know, in my opinion, based on Mr. Mitchell’s 

actions, I would not, I don’t trust him to be out there with children or adults even, 

and to make sound decisions. 

(Tr. at 61, 77 – 78).

Thus, the court is satisfied that the Coast Guard proved that there is a clear connection 

between Respondent’s conduct and a risk to children at sea. Moreover, the Coast Guard proved 

that Respondent was convicted of a criminal offense that would have prevented the original 

issuance of an MMC.

E. Obiter Dictum

It is important to note for the appellate record that Mr. Crouse also testified that if 

Respondent been convicted of “child abuse” three years ago and if he had been assigned the 

same one–year assessment period and if he had committed no other offense within that one–year 

 
16

assessment period, Respondent would have been issued or re–issued an MMC. (Tr. at 120 –

122). If a higher appellate authority interprets 46 USC §7703(2) to mean a criminal conviction 

that “would prevent” issuance of a credential “in every case” where a respondent is convicted of 

child abuse, then Mr. Crouse’s testimony unravels the contention that such a conviction is one 

that “would prevent the issuance or renewal” of an MMC. 46 USC §7703(2). 

Frankly, Mr. Crouse’s testimony reveals that there is no absolute or definitive answer 

whether a given conviction “would prevent the issuance or renewal” of an MMC. The best that 

can ever be said about such a charge is: “It depends on a wide variety of subjective factors.” 

Thus, depending upon how 46 USC §7703(2) is interpreted, the instant charge and all such future 

charges are inherently subject to challenges for arbitrariness, capriciousness or that they are void 

for vagueness.10 Respondent’s post-hearing Memorandum raises these concerns. Respondent 

also notes that the Coast Guard Marine Safety Manual blurs the lines of distinction between 

offenses that require prevention of issuance and suggest prevention of issuance.

V. SANCTION

Title 46 USC §7703 provides that a mariner’s credential may be suspended or revoked if 

the holder is convicted of an offense that would prevent issuance or re-issuance of a credential. 

Thus, the question obtains whether to suspend or revoke Respondent’s MMC in this case.

The authority to impose sanctions at the conclusion of a case is exclusive to the ALJ. 46 

CFR §§5.567; 5.569(a); Appeal Decision 2362 (ARNOLD) (1984). The nature of this non-penal 

administrative proceeding is to “promote, foster, and maintain the safety of life and property at 

sea.” 46 USC §7701; 46 CFR §5.5; Appeal Decision 1106 (LABELLE) (1959). 

The Coast Guard seeks revocation of Respondent’s credential. In determining an 

appropriate sanction for offenses for which revocation is not mandatory, an ALJ should consider: 

 

10 Connally v. General Construction Co., 269 U.S. 385 (1926). The Coast Guard’s post-hearing Memorandum at 

fn.5 presents a thorough discussion of the issue of “vagueness.”
17

any remedial actions undertaken by a respondent; respondent’s prior records; and evidence of 

mitigation or aggravation. See 46 CFR §5.569(b)(1)-(3). 

Remedial Action: Respondent did not provide any evidence of independent, remedial 

action undertaken by him which might mitigate the sanction here imposed. See 33 CFR 

§5.569(b)(1). 

Respondent’s Prior Records: The Coast Guard did not provide any adverse information 

from Respondent’s prior records. 

Mitigation or Aggravation: The Coast Guard did not provide any appropriate evidence 

in aggravation arising from Respondent’s conviction of a crime contemplated by 46 USC 

7703(2). 

VI. ULTIMATE FINDNGS OF FACT AND CONCLUSIONS OF LAW

1. Respondent’s Florida conviction for violating Florida Statues Title XLVI, section 

827.03(c), Child Abuse, a third degree felony, constitutes “an offense” under 46 USC 

§7703(2). 

2. Respondent’s predatory conduct—evidenced by the Florida conviction and probation—

has a clear connection to his duty to promote the safety of children at sea.

3. Respondent’s Florida conviction is an offense that “would prevent” the issuance or 

renewal of an MMC, as described in 46 USC §7703(2). 

4. Given the nature of Respondent’s Florida conviction and current probation restrictions, the 

Court concludes Respondent is a demonstrable threat to the safety of passengers under his 

potential supervision.

5. After considering the record in its entirety, the court concludes REVOCATION is the 

proper sanction. 

VII. CONCLUSION

For the foregoing reasons, I find the Coast Guard has PROVED the allegations in the 

Complaint. Respondent’s conduct underlying his criminal conviction poses a demonstrable 
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threat to the safety of passengers under his potential supervision and is more than sufficient to 

warrant REVOCATION.

VIII. ORDER

IT IS HEREBY ORDERED, that the Merchant Mariner’s Credential issued by the U.S. 

Coast Guard to BROOKS McLEAN MITCHELL is hereby REVOKED.

IT IS FURTHER ORDERED, that Respondent BROOKS McLEAN MITCHELL is 

hereby prohibited from serving aboard any vessel requiring a Merchant Mariner’s Credential 

issued by the U.S. Coast Guard commencing upon the date of this Decision and Order. 

PLEASE TAKE NOTE, that issuance of this Decision and Order serves as notice of the 

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

Attachment B.

IX. POST SCRIPT

On June 6, 2017, Respondent again presented the court with an ex parte communication 

via e-mail (ALJ Ex. II) containing what appears to be a “journal entry” or a “calendar entry” 

from the Volusia County Court. (ALJ Ex. III). The document does not appear to be a signed and 

certified Order from a court of competent jurisdiction; it is merely an uncertified collection of 

“documents” which appear to reflect that Respondent’s underlying plea and conviction were 

vacated. The “documents” also appear to set a new trial date for the week of August 28, 2017. 

More importantly, the “documents” specifically impose as a condition of bail (?) that Respondent 

is to have “No unsupervised contact with minors.” The court has no way of knowing whether 

these “documents” are valid.

On June 7, 2017, Respondent again attempted an ex parte communication with the court, 

this time in the form of a second e-mail, informing the court that he was “no longer a convicted 

felon.” (ALJ Ex. IV). Once again, the court is concerned about Respondent’s propensity for ex 
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parte communications, despite the court’s several warnings to the contrary. The court’s 

concerns are particularly amplified, given that Respondent is clearly the beneficiary of ongoing 

assistance from an attorney. (It is patently obvious that Respondent’s post-hearing brief was 

written by an attorney.) Thus, the court need not, in this instance, be solicitous of the interests of 

a pro se litigant, as suggested in GREEN, supra. 

To the extent Respondent’s post-hearing ex parte communications are intended as a 

Motion before this court (Respondent’s ex parte e-mails and attachment do not comport with the 

requirements of 33 CFR §§20.309, 602, 904), that Motion is DENIED. 46 CFR §5.51. The 

court’s reasons are specific:

1. Respondent has not filed any legally appropriate Motion, supported by any 

citation to legal authority, seeking cognizable relief; 

2. Respondent has not presented the court with any Order from a civilian court 

of competent jurisdiction indicating whether Respondent’s plea or conviction 

have been vacated or the legal effect thereof;

3. Even assuming that Respondent’s criminal plea and conviction have been 

vacated, the court, guided by the overarching principles of “safety at sea,” 

cannot ignore the factual evidence adduced at trial which clearly established 

that Respondent demonstrates a predilection for sexually predatory conduct 

toward minor children. Thus he is not a safe and suitable mariner. 46 CFR 

§§5.5, 10.107.

4. Even assuming the Volusia County journal entry is valid, the very terms of 

that entry specify Respondent is to have “No unsupervised contact with 

minors.” On its face, this condition is strikingly similar to the court’s previous 

Probation Order, precluding Respondent’s contact with minor children. (Tr. at 

25). The evidence adduced at trial strongly indicates that the return of 

Respondent’s MMC would likely place Respondent in direct contact with 

minor children, thus posing a clear and direct threat to safety of Respondent’s 

passengers at sea. 46 CFR §10.107 “safe and suitable mariner.” 
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IT IS SO ORDERED.

_________________________________________________

Bruce Tucker Smith

US Coast Guard 

Administrative Law Judge

Date: 

June 07, 2017