UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

DONALD ERIC HAGER, Jr. 

Respondent. 

______________________________ Docket Number: CG S&R 08-0043 

CG Case No. 3106669

 

ORDER DENYING RESPONDENT’S PETITION TO RE-OPEN

Issued: March 9, 2010

Issued by: Walter J. Brudzinski, Administrative Law Judge

Following a suspension and revocation hearing the undersigned found Respondent, 

Donald E. Hager, Jr., wrongfully possessed Marijuana; Oxycontin/Oxycodone without a valid 

prescription; and, a handgun without a permit, all while acting under the authority of his 

Merchant Mariner’s License.1 In accordance with the regulations, I revoked his License. The 

State of New Jersey also charged Respondent with those offenses but he was ultimately acquitted 

after a jury trial. Respondent now asks the ALJ to reopen the record, rescind the Revocation 

Order, and reinstate his License. Respondent’s request is denied. 

 

1

 Oxycontin and Oxycodone were used interchangeably during the hearing but the laboratory report showed the 

presence of 1.80 grams of Oxycodone. 
ARGUMENTS 

In his Petition to Re-open and Review Findings, Respondent asks this “Administrative 

Court to reconsider its findings in the above mentioned case. I believe the Judge prematurely 

ruled on this issue before all State and Federal charges were dismissed. All charges were 

acquitted therefore removing the cause for the Revocation Order of my Captains license. I 

request a hearing to be scheduled at the earliest possible time to correct the Courts error.” 

Respondent’s Petition at 1. 

On February 8, 2010, the undersigned and the parties participated in a teleconference 

wherein the undersigned ordered the Investigating Officer to file her response to Respondent’s 

Petition by February 16, 2010 and Respondent to file his reply by February 26, 2010. 

On February 22, 2010, the undersigned received the Coast Guard Investigating Officer’s 

Motion in Opposition to Respondent’s Request to Reopen the Administrative Hearing. 

Telephonic conversations between Ms. Regina Maye of ALJ NY and Ms. Lauren Meus of the 

ALJ Docketing Center in Baltimore reveal that the Docketing Center received the Investigating 

Officer’s Motion in Opposition on February 16, 2010 but the Docketing Center’s facsimile 

machine did not print all of the pages and no one at the ALJ Docketing Center called the 

Investigating Officer until February 22, 2010 to advise her to resend it. When Docketing Center 

personnel advised the Investigating Officer that it had not been received in full, she immediately 

forwarded an electronic copy. The ALJ Docketing Center considers the Investigating Officer’s 

brief filed on February 16, 2010, and thus I find the Coast Guard’s brief is timely filed. 

The Investigating Officer’s Motion in Opposition states Respondent’s Petition “fails to 

distinguish the difference between the charge of misconduct for possession of marijuana and 

unprescribed OxyContin, and a charge of misconduct based on a state court conviction for 

2 
possession of dangerous drugs/controlled dangerous substances . . ..” Brief of Investigating 

Officer at 3. “In this instance, however, the charges brought against the Respondent were based 

on misconduct for possession, not misconduct based on a state court conviction . . . .” Id. “The 

ALJ never based his decision on the outcome of a state court criminal trial.” Id. “In this case, 

there was no allegation of a conviction, only allegations of misconduct based on possession.” Id. 

at 4. 

The Investigating Officer also argued, among other things, that “[i]n administrative 

hearings, the party bearing the burden of proof must prove their case by a preponderance of the 

evidence, which is a much lower standard compared to the criminal burden of proving guilt 

beyond a reasonable doubt. 33CFR 20.701.” Id. She went on to summarize some of the 

testimony adduced at hearing as follows: “During the hearing . . . New Jersey State Trooper 

McGuire . . . testified that he observed the Respondent pull two small plastic bags from his back 

pocket and drop them on the deck. Trooper McGuire collected the two baggies, entered them 

into evidence, and ensured that they were maintained through the chain of custody. The contents 

were later tested and found to be 1.14 grams of marijuana and 1.80 grams of oxycodone . . ..” Id. 

at 5. (citations omitted). “Based on the preponderance of the evidence the ALJ found that the 

Respondent committed misconduct by possessing marijuana and Oxycontin without a 

prescription, in violation of New Jersey State law.” Id. “Similarly, evidence was presented . . . 

[concerning] the misconduct charge of possession of a handgun without the proper permit in 

violation of New Jersey state law. The ALJ admitted testimony regarding a handgun that was 

discovered in a gym bag belonging to Respondent. Id. (citations omitted). 

The Investigating Officer concluded that Respondent’s acquittal in state court is not 

binding on the ALJ’s findings in the underlying suspension and revocation proceedings; 

3 
therefore, the record should not be reopened. She attached a copy of the Judgment of Acquittal 

from the Superior Court of New Jersey, Monmouth County, and copies of the relevant New 

Jersey Statutes. The Judgment of Acquittal lists as “Original Charges” the charges in Indictment 

#08-03-667-I: Possession of CDS [controlled dangerous substance] (Oxycodone) and Unlawful 

Possession of a Weapon, together with the statute citation and offense level or degree. The form 

also lists Possession of CDS (Marijuana) separately. The form’s “Sentencing Statement” reads, 

“Defendant has been acquitted on the Indictment 08-03-667-I.” No mention is made concerning 

Possession of Marijuana. 

On February 24, 2010, Respondent filed a “Motion for Default Finding” claiming the 

Investigating Officer did not file her response until after the due date, thus creating a default 

condition. Respondent asserts that under 33 C.F.R. § 20.904 the Coast Guard waived any 

objection it might have. Respondent also argues that pursuant to 33 C.F.R. § 20.1205 he 

requests his credentials be returned to him claiming the Coast Guard lacked probable cause once 

the state court dismissed his criminal charges after a jury trial. He went on to say that because of 

the dismissal, the Coast Guard’s allegations did not occur. Respondent’s Motion for Default 

Finding at 1. 

Following his Motion for Default Finding, Respondent submitted his brief on February 

27, 2010. That brief was due February 26, 2010. Although he dated his brief February 16, 2010, 

the facsimile transmission stamp at the top of the pages shows “02/27/2010 16:41 

17327900527.” Respondent’s brief also contained a Motion for Extension dated February 16, 

2010 requesting an extension to reply claiming, “[t]he defendant needs extra time to confer and 

obtain legal counsel which has an earliest possible date of February 26, 2010 for an intake 

interview.” That Motion also reflects the same facsimile date stamp as Respondent’s brief. 

4 
Professional counsel represented Respondent during the suspension and revocation 

hearing. In this Petition to Re-Open, Respondent represents himself and asks that it be taken into 

consideration. The undersigned will take into consideration that Respondent is self-represented 

to the extent permitted by law. Therefore, the undersigned finds Respondent’s brief is timely 

filed. 

Respondent argues the same points made and rejected during the suspension and 

revocation proceeding. His most relevant point is that he was not the Captain, implying that he 

was not acting under the authority of his license at the time of the misconduct. He also argues 

“[t]he decision to revoke Captains license was determined before the civil Courts [sic] verdict 

was rendered. All Charges were acquitted and vacate the allegations [sic] made by the state and 

federal agencies which were used to make the decision to revoke Captains license.” Brief of 

Respondent at 1. He argues further that “[a]s per standard operational procedures, a urinalysis 

was performed for the presence of controlled substances, all results were negative.” Respondent 

concludes by arguing that “[t]o hold Donald [Responsible] for things beyond his control would 

be guilt by association . . . I respectfully submit that all charges by the USCG be removed and 

that my license be reinstated at the earliest possible date. I also reserve the right to appeal this 

matter to the Commandant of the Coast Guard and the right to introduce new evidence as it is 

collected.” Id. at 2. 

LAW 

Under 33 C.F.R. § 20.904(a) “. . . the ALJ may, for good cause shown in accordance with 

paragraph (c) of this section, reopen the record of a proceeding to take added evidence.” 

Subsection (c) provides “[t]he ALJ may reopen the record of a proceeding if he or she believes 

that any change of fact or law, or that the public interest, warrants reopening it.” 

5 
Section 904(e)(1) states, in pertinent part, as follows: 

At any time, a party may file a petition to reopen with the 

Docketing Center for the ALJ to rescind [emphasis added] any 

order suspending or revoking a merchant mariner’s license . . . if

[emphasis added] – 

(i) The order rests on a conviction [emphasis added] – 

(A) For violation of a dangerous – drug law; 

(B) Of an offense that would prevent the issuance or renewal of the 

license . . . ; 

* * * 

(ii) The respondent submits a specific order of court to the effect 

that the conviction has been unconditionally set aside for all 

purposes. 

* * * 

(f)(1) Any motion to reopen the record must clearly state why the 

basis for the order of revocation is no longer valid and how the 

issuance of a new license . . . is compatible with the requirement 

of good discipline and safety at sea. 

(2) Any party who does not respond to any petition to reopen the 

record waives any objection to the motion. 

ISSUES 

 1) Whether Respondent is entitled to a default finding; 

 2) Whether the order of revocation rests on a conviction; and, 

3) Whether the acquittal is a change of fact or law that warrants reopening. 

DECISION 

For the reasons discussed below, the Respondent is not entitled to a default finding 

automatically reinstating his Merchant Mariner’s License; further, the order of revocation did not 

rest on convictions in state court; finally, Respondent’s acquittals do not constitute any change in 

fact or law triggering reopening in the public interest. 

6 
DISCUSSION 

Respondent’s Motion for Default Finding

Respondent claims that if the Coast Guard does not file an objection to the Petition, then 

it creates a default condition which requires the Coast Guard to return his license. Respondent 

cites no authority for this proposition and the procedural regulations as well as appeal decisions 

do not provide for default in petitions to re-open. Title 33 C.F.R. § 20.904(b)(2) provides “[a]ny 

party who does not respond to any petition to reopen the record waives any objection to the 

motion.” Title 33 C.F.R. § 20.310(a) entitled “Default by respondent” provides “[t]he ALJ may 

find a respondent in default upon failure to file a timely answer to the complaint or, after motion, 

upon failure to appear at a conference or hearing without good cause shown.” See also, 33 C.F.R. 

§ 20.308. 

Waiving an objection does not equal default. Under 33 C.F.R. § 20.904(b)(2), the remedy 

for a party’s failure to respond to a petition to reopen is waiver of that party’s right to object to 

the petition. Although the undersigned found the Coast Guard’s filing timely, the decision to reopen is still left to the ALJ’s discretion under the guidelines in 33 C.F.R. § 20.904. These 

guidelines apply with or without the Coast Guard’s objection. Therefore, Respondent is not 

entitled to a default finding automatically reinstating his Merchant Mariner’s License. 

Order of Revocation Does Not Rest on a Conviction

Respondent argues “the Coast Guard rested its case on Criminal Proceedings that were all 

dropped, and meet [sic] the tests under 20.904 sections I paragraph to allow for appeals.” 

Respondent’s Motion for Default Finding at 1. Respondent appears to be referring to 33 C.F.R. § 

20.904(e)(1) above. If the order of revocation in the underlying suspension and revocation 

proceedings rested only on convictions and Respondent submits a specific order of court to the 

7 
effect that the convictions have been unconditionally set aside for all purposes, it would be good 

cause to re-open the proceedings and take additional evidence. However, in this case, the Coast 

Guard did not initiate the underlying suspension and revocation proceedings based on 

Respondent’s convictions. Had that been the case, the Coast Guard would have offered the 

convictions into evidence. 

Instead, the Coast Guard proceeded with allegations of misconduct under 46 U.S.C. § 

7703 which reads in pertinent part, “a license . . . issued by the Secretary may be suspended or 

revoked if the holder – (1) when acting under the authority of that license . . . (B) has committed 

an act of incompetence, misconduct, or negligence . . ..” The Coast Guard defines Misconduct in 

46 C.F.R. § 5.27 as “. . . human behavior which violates some formal, duly established rule. 

Such rules are found in, among other places, statutes, regulations, the common law . . . It is an 

act which is forbidden or a failure to do that which is required.” The misconduct that I found 

proved in the underlying suspension and Revocation proceedings are acts which are forbidden by 

statute. Therefore, the order of revocation does not rest on a conviction. 

Reopening under change of fact or law, or in the public interest

 Respondent’s final argument appears to be based on two claims: 1) that even if the 

revocation order is not based on convictions, the Superior Court of New Jersey acquitted him of 

the same conduct and because of the dismissal, the Coast Guard’s allegations did not occur; and, 

2) the Coast Guard lacked probable cause once the state court dismissed his criminal charges 

after a jury trial. Respondent’s Motion for Default Finding at 1. 

Concerning Respondent’s first claim, the standard of proof in criminal proceedings to 

determine a criminal defendant’s guilt is “beyond a reasonable doubt.” In Coast Guard 

administrative proceedings it is the “preponderance of the evidence.” Reasonable doubt is a 

8 
much higher standard than preponderance of the evidence. Reasonable doubt is “[t]he doubt that 

prevents one from being firmly convinced of a defendant’s guilt, or the belief that a defendant is 

not guilty. BLACK’S LAW DICTIONARY (8th ed. 2004). 

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 and 

Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 

U.S. 602, 622 (1993) (citing In re Winship, 397 U.S. 358, 371-72 (1970). (Harlan, J., concurring) 

(brackets in original)). 

A finding of not guilty by a jury does not necessarily mean that the allegations did not 

occur. It simply means that the State did not prove each and every element of the offense to 

“firmly convince” all 12 members of the jury that the defendant was guilty. Because of these 

differences in the standards of proof, it does not necessarily follow that a jury’s finding of not 

guilty beyond a reasonable doubt means that the same result would occur when applying the 

preponderance of the evidence standard. 

Concerning Respondent’s second claim, he cites 33 C.F.R. § 20.1205 as authority to have 

his credentials returned arguing that the Coast Guard lacked probable cause once the state court 

dismissed his criminal charges. Section 20.1205 pertains to Expedited Proceedings and provides, 

in pertinent part, “at any time during the expedited hearing, the respondent may move that his or 

her license . . . be returned on the grounds that the agency lacked probable cause for temporary 

suspension.” Section 20.1205 is based on 46 U.S.C. § 7702(d) which provides, in summary, that 

the Coast Guard may take possession of and temporarily suspend a merchant mariner’s 

credential for not more than 45 days if the mariner was acting under the authority of that 

9 
credential and there is probable cause to believe the mariner performed a safety sensitive 

function on a vessel in violation of law or Federal regulations regarding use of alcohol or a 

dangerous drugs. 

Under the Expedited Proceedings regulations in subpart L of Title 33 C.F.R., once the 

Coast Guard takes possession of and temporarily suspends a merchant mariner’s credential, the 

mariner is entitled to a hearing before an Administrative Law Judge within 30 days after the 

temporary suspension. In this case, the Coast Guard did not take possession of and temporarily 

suspend Respondent’s License. Therefore, 33 C.F.R. § 20.1205 does not apply. 

During the underlying suspension and revocation proceedings, the Coast Guard presented 

evidence that Respondent had previously tested positive for marijuana during a random drug test. 

As a result of that positive drug test, Respondent entered into a settlement agreement. 

Ultimately, Respondent failed to comply with the settlement agreement and the Coast Guard 

revoked his credentials. Respondent subsequently applied for administrative clemency. The 

Coast Guard denied his request because he tested positive for drugs during the administrative 

clemency process. The Coast Guard ultimately granted Respondent administrative clemency on 

his second request. Decision and Order at 17. 

Also during the underlying hearing, Trooper McGuire also testified that Respondent 

admitted to him that the two vials found in his gym bag contained synthetic urine that he 

purchased online so that he could pass a urine test. The undersigned found that such action 

shows intent and capability to falsify future drug screens. Id. In view of the foregoing, 

Respondent’s acquittals do not constitute any change in fact or law triggering reopening in the 

public interest. 

WHEREFORE, 

10 
ORDER

 

IT IS HEREBY ORDERED that Respondent’s Petition to Re-open and Review 

Findings is DENIED. 

 Done and dated March 9, 2010 

 New York, New York 

____________________________________ 

WALTER J. BRUDZINSKI 

ADMINISTRATIVE LAW JUDGE

U.S. COAST GUARD 

11