UNITED STATES OF AMERICA 

DEPARMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

 

DOMINIC MCDONALD 

 

Docket No. CG S&R 01-0118 

Case No. PA00001665 

 Respondent 

ORDER DENYING RESPONDENT’S MOTION TO ALTER OR AMEND 

DECISION AND ORDER; ORDER GRANTING THE COAST GUARD’S MOTION 

TO ALTER AND AMEND DECISION AND ORDER; AND ORDER GRANTING 

RESPONDENT’S ATTORNEY LEAVE TO ENTER AN APPEARANCE

On December 6, 2001, Respondent Dominic McDonald filed a Motion to Alter or 

Amend the November 9, 2001 Decision and Order issued by the undersigned in the 

above captioned case. The Decision was based on a finding that the Coast Guard had 

proved that Respondent McDonald wrongfully refused to submit to a required 

chemical test for dangerous drugs by providing a substituted urine specimen for preemployment drug screening on July 31, 2000 in violation of 46 U.S.C. § 7703 and 46 

C.F.R. Parts 5 and 16. The Order suspended Respondent McDonald’s Merchant 

Mariner's License and Document for a period of twelve (12) months beginning on the 

date said license and document was delivered to the United States Coast Guard Marine 

Safety Unit in Galveston, Texas. The Order also imposed an additional 12 months of 

probation following expiration of the 12-month period of outright suspension. 

In his December 6th motion, the Respondent requests that the Decision and Order 

be modified so that the 12-month outright suspension begins on July 31, 2000. The 
Respondent argues that good cause exists to authorize him to return to work on 

probation because of the national emergency resulting from the events of September 11, 

2001 and the critical shortage of licensed third mates needed to assist the United States 

Military Sealift Command in carrying fuel, supplies, and other material on board 

chartered International Organization of Master, Mates and Pilots (“MM&P”) vessels to 

directly support United States military bases and operations overseas.1 The Respondent 

further argues that he is an excellent and reliable candidate for immediate return to 

work without further incident because of his long unblemished record of service and 

low probability of a having a substance abuse dependence problem.2 The Respondent 

further points out that he has not worked for the past eighteen (18) months and a 12-

month outright suspension of his license and document would result in the Respondent 

not working for a total of thirty (30) months. 

On December 12, 2001, the Coast Guard filed a motion in opposition to the 

Respondent’s Motion to Alter or Amend the Decision and Order. The Coast Guard 

points out that Respondent McDonald intentionally maintained control of his license 

 1

 Respondent McDonald attached an affidavit signed under the penalty of perjury by Captain Glen P. Banks, 

International Secretary-Treasurer for MM&P to support this argument. 2

 The testimony of the substance abuse professional (“SAP”) regarding the Respondent’s probability of having a 

substance abuse problem was given little weigh and was found to be unreliable because the SAP failed to consider 

all factors in reviewing the results of the substance abuse examination. USCG v. McDonald, Docket No. CG S&R 

01-0118, at 22 (November 9, 2001). More specifically, the SAP failed to consider the Respondents elevated 

“defensiveness” score on the substance abuse examination in assessing Respondent McDonald’s probability of 

having a substance abuse problem. Furthermore, Mr. McDonald’s inconsistent and contradictory response at the 

substance abuse interview regarding use of medication and his testimony during the hearing calls his credibility into

question. Id. at 18-19. 

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and document until September 7, 2001 when the Respondent attempted to renew his 

license and document and the Regional Examination Center in Houston, Texas took 

physical possession of said license and document pending the outcome of the hearing. 

The Coast Guard moves that the November 9, 2001 Decision and Order be modified to 

permit the 12 month outright suspension to commence on September 7, 2001, i.e., the 

day the Regional Examination Center in Houston, Texas took physical possession of 

Respondent McDonald’s license and document. 

After careful review of the applicable law and facts of this case, including the 

parties’ respective arguments and evidence in support thereof, the Respondent’s 

Motion to Alter or Amend the November 9, 2001 Decision and Order is DENIED. 

However, the Coast Guard’s motion is well taken. The period of 12-month outright 

suspension shall be deemed to have commenced on September 7, 2001. 

 (I) 

DISCUSSION 

In these proceedings, at any time, upon party motion and for good cause shown, 

an administrative law judge may issue an order rescinding an order suspending a 

merchant mariner’s license and/or document. 33 C.F.R. § 20.904. Selection of an 

appropriate order solely rests in the exclusive authority and discretion of the 

administrative law judge. 46 C.F.R. § 5.569(a); see also Appeal Decision 2427 

(JEFFRIES); Appeal Decision 2452 (MORGANDE). In determining, the appropriate 

order in this case, the undersigned took into consideration the fact that Respondent 

McDonald: (1) has no prior history of violations of Coast Guard laws or regulations; (2) 

has never tested positive for dangerous drugs; (3) does not have a reported history of 

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drug use or abuse; and (4) only needs an additional 0.65 years of credited maritime 

services to qualify for a retirement pension from MM&P. Based upon these 

considerations, the undersigned determined that an order at the lower end of the Table 

of Suggested Range of an Appropriate Order codified at 46 C.F.R. § 5.569(d) was 

appropriate. 

The mere fact that Respondent has not worked in eighteen months beginning on 

July 31, 2000 when he provided a substituted urine specimen for pre-employment drug 

testing does not justify reducing the order or otherwise providing Respondent with 

credit towards satisfaction of the November 9, 2001 decision and order. The regulations 

clearly state that “[t]he time of any period of outright suspension ordered does not 

commence until the license, certificate or document is surrendered to the Coast 

Guard.” 46 C.F.R. § 5.567(e). The term “surrender” means to relinquish or give up 

possession or control to the Coast Guard either by order or voluntarily. See generally

Webster’s II New College Dictionary 1110 (Houghton Mifflin Co. 1995); see also Blacks 

Law Dictionary 1444 (6th ed. 1990) (defining “surrender” as “to relinquish, to deliver 

into lawful custody, or to give up in favor of another”); 46 C.F.R. § 5.203(b)(2) (defining 

voluntary “surrender” as a permanent relinquishment of all rights to the license, 

certificate or document); Word v. United State, 223 F. Supp. 614, 616 (S.D. Al 1963). 

Here, Respondent maintained physical possession and control of his license and 

document until September 7, 2001 when the Coast Guard Regional Examination Center 

in Houston, Texas took actual possession and control of said license and document. 

Respondent McDonald maintained custody of the license and document even though 

he was presented with numerous opportunities to relinquish control of his merchant 

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mariner’s license and document. In maintaining custody of his Coast Guard 

credentials, Respondent McDonald was cognizant that an adverse ruling could be 

rendered against him with respect to his license and document. Yet, Respondent 

McDonald held on to his license and document at his own expense and, thus, is not 

entitled to any credit for the period of time in which he did not work. The mere fact 

that Respondent McDonald did not, or otherwise could not, work under said license 

and document for 18 months is immaterial. The computation of the time period of 

outright suspension begins when the Coast Guard takes actual physical control and 

possession of the license, document, or certificate, which, in this case, occurred on 

September 7, 2001. 

Moreover, although the undersigned is acutely aware of the events of September 

11, 2001, at this juncture, I decline to reduce the 12-month suspension order based solely 

on the averment of Captain Banks. The Respondent has filed a notice of appeal and 

may explore other avenues permitting him to work pending resolution of the appeal. 

See 46 C.F.R. § 5.707.

(II) 

ORDER 

WHEREFORE, 

IT IS HEREBY ORDERED that Respondent’s Motion to Alter or Amend the 

November 9, 2001 Decision and Order in the above captioned case is DENIED. 

IT IS FURTHER ORDERED that the Coast Guard’s Cross-Motion to Alter or 

Amend the November 9, 2001 Decision and Order in the above captioned case is 

GRANTED. Merchant Mariner’s License Number 788349 and Merchant Mariner’s 

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Document Number [REDACTED], and all duplicates thereof and all other valid 

documents and certificates issued to Dominic D. McDonald by the United States Coast 

Guard or any predecessor authority is hereby SUSPENDED OUTRIGHT for TWELVE 

(12) MONTHS beginning on September 7, 2001. Following the period of OUTRIGHT 

SUSPENSION said license and document shall be returned to the Respondent, who 

will be required to serve an additional TWELVE MONTHS PROBATION, which if 

violated by Respondent’s negligence or misconduct will result in an additional twelve 

(12) months suspension. However, if a drug case violation is later proved against the 

Respondent, his Coast Guard credentials will be revoked. 

IT IS FURTHER ORDERED THAT, while resolution of the appeal is pending in 

this case, Respondent may apply for temporary issuance of Coast Guard license or 

document in accordance with 46 C.F.R. § 5.707. 

IT IS FURTHER ORDERED THAT the Respondent’s motion for leave to enter the 

appearance of William Hewig, III, Esq. as legal counsel is GRANTED. 

IT IS FURTHER ORDERED THAT, pursuant to 33 C.F.R. §§ 20.904(d) and 

20.1003(a)(3), the appellate brief must be received in the Docketing Center no later than 

60 days from the date of issuance of this order. 

Done and dated this ___ day of December 2001 at Houston, Texas 

___________________________________ 

THOMAS E. MCELLIGOTT 

Administrative Law Judge

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