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UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

BERNARD EUGENE HUTCHING 

Respondent. 

______________________________ Docket Number: CG S&R 04-0540 

CG Case No. 2210185

 

ORDER DENYING MOTION TO REOPEN

Issued: March 17, 2006 

Issued by: Walter J. Brudzinski, Administrative Law Judge

Background

 On October 8, 2004, Coast Guard Activities Baltimore issued a Complaint against 

Respondent alleging that he wrongfully falsified his renewal application for his Merchant 

Mariner’s Document (MMD). Specifically, the Coast Guard alleged Respondent indicated on the 

reapplication form that he had not been convicted by any court for an offense other than a minor 

traffic violation when in fact he had been convicted of Cannabis Possession, Second Degree 

Assault, and Operating a Motor Boat Under the Influence. In his timely Answer to the 

Complaint, Respondent admitted all jurisdictional and factual allegations and agreed with the 

Coast Guard’s proposed order of revocation. 

On October 13, 2004, the ALJ Docketing Center assigned this case to the undersigned for 

review and entry of an appropriate Order. There were no factual issues in dispute so the 

allegations were proved by Respondent’s Answer. Since there was no disagreement with the 

proposed sanction, the matter was ripe for entry of an order revoking Respondent’s MMD. 

Therefore, on October 15, 2004, I issued an Order finding the violation proved by Answer and 

revoking Respondent’s MMD. 

Petition to Reopen

 On March 6, 2006, the ALJ Docketing Center received a letter from Respondent dated 

February 15, 2006 seeking to have his MMD “reinstated.” Respondent’s letter states that he has 

been in contact with the Coast Guard in Baltimore and is making this request to “reopen” on 
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their advice. Respondent also claims that he “voluntarily surrendered his MMD to the Coast 

Guard by mail on May 26, 2004 with the understanding that upon completion of an alcohol and 

other drug rehabilitation program it would be reinstated.” His letter went on to say that 

“[u]nfortunately, the Marine Investigating Officer handling my case is no longer in that position. 

As a result of my time delay, the matter passed to you office.” Respondent closed by stating that 

he has completed treatment at the Seafarers Addictions Rehabilitation Center and is looking 

forward to resuming his seagoing career. 

On March 8, 2006, the ALJ Docketing Center re-assigned this case to the undersigned for 

decision. Since the case file contained no documentation that Respondent had “voluntarily 

surrendered” his MMD, the undersigned contacted the original Investigating Officer on March 

16, 2004 to ascertain whether Respondent had voluntarily surrendered his MMD or whether he 

voluntarily deposited it. The original Investigating Officer stated that Respondent had, in fact, 

voluntarily surrendered his MMD but not by mail on May 26, 2004. He voluntarily surrendered 

it in person on October 8, 2004 in the presence of the original Investigating Officer and two other 

officers at Activities Baltimore. Further, there was no understanding or agreement that the MMD 

would be returned to him upon completion of rehab. The original Investigating Officer 

forwarded the Voluntary Surrender document, signed by him and Respondent. Since that 

document was forwarded to the ALJ Docketing Center on October 8, 2004 but was not in the 

case file, it is now made part of the record. 

Issues

Because Respondent voluntarily surrendered his MMD to the Coast Guard on October 8, 

2004, seven days prior to entry of the Order of Revocation, the initial issue is whether the 

Administrative Law Judge has jurisdiction over an MMD that has been voluntarily surrendered 

prior to the Order Revoking it. The underlying issue is whether, in any event, good cause exists 

to reopen the record of this proceeding and take additional evidence. 

Decision

Since voluntary surrender of a Merchant Mariner’s Document permanently relinquishes 

all rights to the document by the holder, the subsequent Order of Revocation is without legal 

effect. Therefore, an Administrative Law Judge is without authority to reopen. Even if the Order 

of Revocation was of legal force and effect and Administrative Law Judge had authority over the 

MMD, Respondent has not shown good cause for reopening and therefore his petition to reopen 

cannot be granted. As a practical matter, the result is the same. However, this does not mean that 

Respondent is precluded from applying for a new MMD. As shown below, a mariner who has 

surrendered his MMD or has had his MMD revoked, may, under certain circumstances, apply for 

a new MMD pursuant to Title 46 CFR Subpart L, sections 5.901 to 5.905. Respondent may also 

simply apply outright for a new MMD. In either event, Respondent will be required to prove cure 

which requires a greater showing than merely completing drug and alcohol rehab. 
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Voluntary Surrender

While Respondent voluntarily surrendered his MMD, it was not with the understanding 

that upon completion of an alcohol and other drug rehabilitation program it would be reinstated. 

“Voluntary surrender” is defined at 46 CFR 5.203 as follows: 

(a) Any holder may surrender a license, certificate or 

document to the Coast Guard in preference to appearing at a 

hearing. 

(b) A holder voluntarily surrendering a license, certificate or 

document shall sign a written statement containing the stipulations 

that: 

(1) The surrender is made voluntarily in preference to 

appearing at a hearing; 

(2) All rights to the license, certificate or document 

surrendered are permanently relinquished; and 

(3) Any rights with respect to a hearing are waived. 

( c )A voluntary surrender of a license, certificate or 

document to an investigating officer in preference to appearing at a 

hearing is not to be accepted by an investigating officer unless the 

investigating officer is convinced that the holder fully realizes the 

effect of such surrender. 

Voluntary Deposit

If there had been an “understanding” that upon completion of rehab Respondent’s MMD 

would be returned to him, that “understanding” would have been a written agreement specifying 

the conditions upon which the Coast Guard will return the license. Had that been the case, 

Respondent would have voluntarily deposited his MMD. “Voluntary deposit” is defined at 46 

CFR 5.201 as follows: 

(a) A holder my deposit a license, certificate, or document 

with the Coast Guard in any case where there is evidence of mental 

or physical incompetence. A voluntary deposit is accepted on the 

basis of a written agreement, the original of which will be given to 

the holder, which specifies the conditions upon which the Coast 

Guard will return the license, certificate, or document to the holder. 

(b) Where the mental or physical incompetence of a holder 

of a license, certificate, or document is caused by use of or addiction 

to dangerous drugs, a voluntary deposit will only be accepted 

contingent on the following circumstances: 

(1) The holder is enrolled in a bona fide drug abuse 

rehabilitation program; 
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(2) The holder’s incompetence did not cause or contribute to 

a marine casualty, 

(3) The incompetence was reported to the Coast Guard by 

the individual or any other person and was not discovered as a result 

of a Federal, State or local government investigation; and 

(4) The holder has not voluntarily deposited or surrendered a 

license, certificate, or document, or had a license, certificate, or 

document revoked for a drug related offense on a prior occasion. 

( c ) Where the mental or physical incompetence of a holder 

of a license, certificate, or document is caused by use of addiction to 

alcohol, a voluntary deposit will only be accepted contingent on the 

following circumstances: 

(1) The holder is enrolled in a bona fide alcohol abuse 

rehabilitation program; 

(2) and (3) read exactly the same as (b) (2) and (3) above. 

(d) Where the conditions of paragraphs (b) and ( c ) of this 

section are not met, the holder may only surrender such license, 

certificate, or document in accordance with § 5.203. 

Had Respondent not voluntarily surrendered his MMD, then the Order of Revocation 

would have legal effect. Had that been the case, Respondent would still have to show good cause 

to reopen. 

Requirements for Reopening

Matters concerning reopening are covered at 33 CFR 20.904. The applicable subsections 

in 33 CFR 20.904 read as follows: 

(a) To the extent permitted by law, the ALJ may, for good 

cause shown (emphasis added) in accordance with paragraph ( c ) of 

this section, reopen the record of a proceeding to take added 

evidence. 

(b) Any party may move to reopen the record of a 

proceeding 30 days or less after closing the record. 

( c ) The ALJ may reopen the record of a proceeding if he or 

she believes that any change in fact or law, or that the public 

interest, warrants reopening it. 

* * * 
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(e)(1) At any time, a party may file a petition to reopen with 

the docketing Center for the ALJ to rescind any order suspending or 

revoking a merchant mariner’s license . . . or document if – 

(i) The order rests on a conviction - 

(A) For violation of a dangerous drug law; 

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

of the license . . . or document; or 

(C) Of an offense described in subparagraph 205 (a)(3)(A) or 

(B) of the National Driver Register Act of 1982 (23 U.S.C. 401, 

note); and 

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

effect that the conviction has been unconditionally set aside for all 

purposes. 

* * * 

(f) Three years on less after an S&R proceeding has resulted 

in revocation of a license, certificate, or document, the respondent 

may file a motion for reopening of the proceeding to modify the 

order of revocation with the ALJ Docketing Center. 

(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, certificate, or document 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. 

Discussion

Applying the facts to the law, there is nothing in the record to justify reopening the record 

to take additional evidence. There has been no change in fact or law, and there is nothing in the 

public interest that warrants reopening. Respondent’s petition to reopen states only that he has 

completed treatment at the Seafarers Addictions Rehabilitation Center and is looking forward to 

resuming his seagoing career. Evidence of cure requires much more than mere completion of 

treatment. 

Any motion to reopen the record must clearly state reasons why the basis for the Order of 

Revocation is no longer valid and how the issuance of a new license, certificate, or document is 

compatible with the requirement of good discipline and safety at sea. The Order of Revocation 

was entered based upon Respondent admitting all allegations in the Complaint. Respondent’s 

petition to reopen does not dispute those allegations or admissions. Therefore, I find no basis to 

disturb the findings and sanction. 
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Respondent’s Remedy

Respondent’s petition states that he is “looking forward to resuming his seagoing career. . 

. [and has]. . . come to realize . . . that membership in the United States Merchant Marine 

mandates responsible behavior both onboard merchant vessels and while ashore.” Since 

Respondent’s case cannot be “reopened” for the reasons set forth above, the only remedy is 

applying for a new MMD pursuant to Subpart L of Title 46 CFR entitled “Issuance of New 

Licenses, Certificates or Documents After Revocation or Surrender.” That subpart is appended as 

Attachment 1. 

 Wherefore, 

 ORDER

IT IS HEREBY ORDERED that Respondent’s Petition to Reopen is DENIED.

Done and dated March 17, 2006 

New York, NY 

____________________________________ 

WALTER J. BRUDZINSKI 

ADMINISTRATIVE LAW JUDGE

U.S. COAST GUARD 
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CERTIFICATE OF SERVICE 

I hereby certify that I have forwarded this Order to the following parties and entities by 

the methods indicated below: 

U.S. Coast Guard Sector Baltimore 

Attn: Senior Investigating Officer 

Investigations Department 

2401 Hawkins Point Road 

Baltimore, MD 21226 

Phone: (410) 576-2577 

Facsimile: (410) 576-2583 

(Via Facsimile) 

MSTC Marc Rechsteiner 

Port Operations 

USCG Group/Base Detroit 

110 Mt. Elliot Avenue 

Detroit, MI 48202-4380 

Phone: (313) 568-9533 

Facsimile: (313) 568-9602 

(Via Facsimile) 

ALJ Docketing Center 

40 S. Gay Street, Room 412 

Baltimore, MD 21202 

Phone: (410) 962-7434 

Facsimile: (410) 962-1746 

(Via Facsimile) 

Bernard Eugene Hutching 

43623 Potomac Shore Road 

Leonardtown, MD 20650 

(Via First Class Mail) 

Done and dated March 17, 2006 

New York, NY 

 _________________________ 

 Regina V. Thompson 

 Paralegal Specialist 

 Assistant to the Administrative Law Judge 

 Phone: (212) 668-2970 

 Facsimile: (212) 825-1230