UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

TERRY M. GRAHAM 

Respondent 

______________________________ 

Docket Number CG S&R 04-0069 

CG Case No. 1982128 

 

ORDER GRANTING REQUEST FOR THE ISSUANCE OF A TEMPORARY LICENSE

Issued: December 19, 2005

Issued by: Walter J. Brudzinski, Administrative Law Judge

Procedural History

This matter came to be heard on Respondent’s request for a temporary license pending 

appeal. In its Decision and Order, dated November 16, 2005, the Undersigned suspended 

Respondent’s Merchant Mariner’s License after finding PROVED the Coast Guard’s Complaint 

alleging negligence in that Respondent failed to post a lookout in violation of Rule 5 of the Rules 

of the Road (Inland Navigation Rules). The additional allegations of Negligence for failure to 

maintain safe speed (Rule 6) and negligently committing an act or failing to perform an act that 

contributed to a collision were found NOT PROVED. Respondent’s Merchant Mariner’s 

License was suspended for a period of six (6) months outright. 
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Law

An individual may seek the issuance of a temporary license pursuant to 46 CFR 5.707(a), 

which states: 

A person who has appealed from a decision suspending outright or revoking a 

license, certificate or document, except for revocation resulting from an offense 

enumerated in § 5.59, may file a written request for a temporary license, 

certificate or document. This request must be submitted to the Administrative 

Law Judge who presided over the case, or to any Officer in Charge, Marine 

Inspection for forwarding to the Administrative Law Judge. 

Title 46 CFR Section 5.59, Offenses for Which Revocation of Licenses, 

Certificates or Documents is Mandatory lists offenses for which an Administrative 

Law Judge enters an order of revocation upon conviction or determination of a proven 

charge. This section essentially applies to offenses associated with the use, possession, 

sale, association or conviction involving dangerous drugs. As applied to the offense 

charged in this matter, Section 5.59 is not relevant to the determination of Respondent’s 

request for temporary license. 

Title 46 CFR Section 5.707(c) prescribes the criteria for the issuance of a 

temporary license and states: 

A determination as to the request [for the issuance of a temporary license] will 

take into consideration whether the service of the individual is compatible with 

the requirements for safety at sea and consistent with applicable laws. If one of 

the offenses enumerated in § 5.61(a) has been found proved, the continued service 

of the applicant will be presumed not compatible with safety at sea, subject to 

rebuttal by the appellant. A temporary document or license may be denied for 

that reason alone. 

Title 46 CFR Section 5.61(a), Acts or Offenses for Which Revocation of Licenses, 

Certificates, or Documents is Sought lists eleven (11) enumerated offenses, none of which 
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pertain to the charge of Negligence as applied in this matter. Therefore, Section 5.61(a) is also 

not relevant to the determination of Respondent’s request for temporary license. 

Decision

Respondent file his Request for Issuance of Temporary License (“Request”) on 

December 2, 2005, following his December 1, 2005 Notice of Appeal. Respondent seeks a 

temporary license to offset financial concerns during the pendency of his appeal in accordance 

with the regulatory provisions found in 46 CFR Part 5. 

On December 14, 2005, the Coast Guard filed its Response to Respondent’s Motion 

Requesting a Temporary License (“Response”). The Coast Guard opposes Respondent’s 

Request. It supports its position based on the facts found in the record, which notably, are on 

appeal and are not considered to be final agency action and also argues “due to the fact that the 

Respondent has personally shown an inability to understand the requirements of Rule 5, 

Lookout, and there is no proof of remediation of this inability ..., therefore, the respondent has 

not personally met the requirements for being safe at sea.” 

On December 15, 2005, Respondent filed a Memorandum in Support of the Issuance of a 

Temporary License (“Memorandum”). Respondent argued issuing a temporary license is 

compatible with the regulatory requirements noting that he has an unblemished record before, 

during, and after these proceedings; that he surrendered his license in compliance with the 

issuance of the Initial Decision and Order; and, that “there is no evidence that issuing the 

temporary license would compromise safety in any way.” 
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A temporary license “inquiry serves to balance two conflicting policies: first, removal of 

an unfit mariner from the industry and elimination of further risk of harm to the public and, 

second, protection of an accused mariner’s due process right to state his case on appeal without 

having already suffered the penalty, as well as the financial hardship, imposed by the decision at 

the hearing level.” Appeal Decision 2499 (AILSWORTH) (1990). 

An “appellant’s application for a temporary license is not an opportunity to re-litigate the 

factual and legal issues surrounding the Coast Guard’s” Suspension and Revocation (“S&R”) 

proceeding but whether or not the Coast Guard “has satisfied its obligation under the 

Administrative Procedure Act (“APA”) to explain why [the] appellant is ineligible for a 

temporary license....“ Commandant v. Moore, NTSB Order No. EM-200 (2005). Simply stated, 

the Coast Guard must articulate an explanation on why this Respondent’s particular application 

for temporary license warrants denial. An argument restating the underlying offense or a 

statement of policy is insufficient to support a denial of a temporary license. See id.; see also, 

Appeal Decision 2499 (AILSWORTH) (1990) (finding that an ALJ may not justify the denial of 

a temporary license in a non-presumption case by simply restating, without more, the charges 

and specifications of the case). 

Here, the Coast Guard’s overall argument is that Respondent, having been found 

negligent in the underlying proceeding is not eligible for a temporary license because he has 

failed to take efforts to remediate himself. The argument is similar to that raised in Commandant 

v. Lyons, 5 NTSB 2678 (Order EM-142, 1987), where a temporary license denial was based on 

the position that “appellant is likely to repeat the behavior that led to the [allegation] 

charged....”as indicated by an arrest history that had not been fully adjudicated. In reaching its 
5

opinion, the National Transportation Safety Board (“NTSB”) found that the former rule under 46 

CFR 5.565(a)(4) which precluded consideration of “unproved charges” in arriving at a sanction, 

also applied when considering whether or not a temporary license should be denied. Today’s 33 

CFR Part 20 rules governing Suspension and Revocation Proceedings contain a similar 

provision. See 33 CFR 20.1315. The Coast Guard’s argument cannot be supported on the 

singular basis that Respondent is somehow required to show rehabilitation or remediation for an 

allegation that has not yet reached final agency action. This is not to say, however, that 

underlying matters cannot be considered when determining whether or not an individual should, 

or should not, be issued a temporary license. See Appeal Decision 2405 (LEON) (1985), Appeal 

Decision 2397 (GEWANT) (1985), Appeal Decision 2372 (COLLA) (1984), Appeal Decision 

2318 (STRUDWICK) (1983). 

Further, the Commandant has stated that the “nature of the offense is not the only 

circumstance which may bear upon whether the service of a particular person on board a vessel 

is compatible with the requirements for safety of life and property at sea ....” Appeal Decision 

2343 (WILLIAMS) (1984). “The relevant factors to be balanced also include the circumstances 

surrounding the offense and its severity or seriousness” and “must also consider other evidence 

presented by the Appellant concerning his fitness to hold a temporary license or document.” Id. 

Here, Respondent has an unblemished record and has operated safely under his Coast 

Guard issued credentials for many years. Aside from the overall finding in the underlying 

allegation of negligence, there is nothing in the record that demonstrates Respondent would not 

abide by the rules and regulations or that he would present a threat to safety at sea during this 
6

time on appeal. See Appeal Decision 2329 (FIFER, II) (1983). It is noted that the charge of 

negligence is based on an “act” and is not imbedded with intent or knowledge or forethought. 

In sum, the Coast Guard has not articulated any individual reason or basis as to why the 

issuance of a temporary license to Respondent is not compatible with the requirements for safety 

at sea. See Commandant v. Moore, NTSB Order No. EM-200 (2005), Commandant v. Amoury, 

3 NTSB 4532 (Order EM-94, 1981). There is no presumption against the issuance of a 

temporary license in this matter and while the underlying event resulted in catastrophic 

consequences, nothing has been submitted nor does the record indicate any action on the part of 

Respondent that would suggest he remains a threat to safety at sea if he was issued a temporary 

license during this appellate period. A “denial of Appellant’s request for temporary license 

would have to be supported by evidence sufficient to enable a reasonable predictive judgment 

that Appellant’s continued service would be incompatible with safety at sea” Appeal Decision 

2499 (AILSWORTH) (1990) and also require a brief statement of the grounds for denial as 

required by 5 U.S.C. 555(e). Given all the above, Respondent’s Request for Issuance of 

Temporary License is hereby GRANTED. 

WHEREFORE, 
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ORDER 

IT IS HEREBY ORDERED that Respondent be issued a Temporary License as provided 

by the rules found at 46 CFR 5.707. 

Done and dated December 19, 2005 

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 this day served the foregoing document(s) upon the following parties 

and limited participants (or designated representatives) in this proceeding at the address indicated 

by Facsimile: 

LT Bart A. Marcules, USCG 

Eighth CG District Judge Advocate General Office 

500 Poydras Street 

New Orleans, LA 70130-3396 

Telephone: 504 589-6188 

Facsimile: 504 589-4695 

LT Kurt Van Hauter, USCG 

U.S. Coast Guard Sector Ohio Valley 

600 Martin Luther King, Jr. Place, Rm. 360 

Louisville, KY 40202-2230 

Telephone: 502 779-5305 

Facsimile: 502 582-6825 

 David M. Spotts, Esq. 

6847 Lake Road West 

P.O. Box 3046 

Ashtabula, OH 44005-3046 

Telephone: 440 964-6466 

Facsimile: 440 964-6502 

ALJ Docketing Center 

40 S. Gay Street, Suite 412 

Baltimore, Maryland 21202 

Telephone: 410 964-7434 

Facsimile: 410 962-1746 

 

Done and dated December 19, 2005 

New York, NY 

________________________________ 

 Regina V. Thompson 

Paralegal Specialist 

Assistant to the Administrative Law Judge 

 Telephone: 212 668-2970 

 Facsimile: 212 825-1230