UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STA TES COAST GUARD 

vs. 

LICENSE NO. 909300 

Issued to: STEVE A. MIRGEAUX 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

NO. 2645 

This appeal is taken in accordance with 46 U.S.C. § 7701 et seq., 

46 C.F.R. Part 5, and the procedures in 33 C.F.R. Part 20. 

By a Decision and Order (D&O) dated December 30, 2002, an Administrative 

Law Judge (ALJ) of the United States Coast Guard at Seattle, Washington, revoked 

Steven A. Mirgeaux's (Respondent's) above-captioned license upon finding proved a 

charge of use of a dangerous drug. 

The specification found proved alleged that Respondent tested positive for 

amphetamine/methamphetamine as part of a random drug screening conducted on 

April 2, 2002. 

PROCEDURAL HISTORY 

The Coast Guard filed its Complaint on June 12, 2002, alleging, by virtue of his 

positive test result, that Respondent had used or been addicted to the use of dangerous 

drugs. [D&O at 1] Respondent failed to reply to the Complaint within the thirty-day 

time period prescribed by Coast Guard regulation and, on July 17, 2002, the Coast Guard 

filed a Motion for Default Order with the ALJ. [D&O at I; Motion for Default Order at 

1] Respondent first acted on the Coast Guard's Complaint when he filed an undated 
MIRGEAUX No. 2645 

four-page hand-written document-received by the ALJ Docketing Center on August 2, 

2002- that requested an extension of time within which to file his Answer and alleged, 

among other things, that the Coast Guard's Complaint had not been served at his correct 

address. [D&O at 1; Respondent's Request for Extension of Time at 1) Via an Order of 

Extension, dated August 5, 2,002, the Chief ALJ granted Respondent's request for time 

extension, impliedly denying the Coast Guard's earlier Motion for Default Order, and 

required that Respondent file his Answer to the Coast Guard's Complaint on or before 

August 19, 2002. [Order of Extension) Respondent filed a timely Answer to the Coast 

Guard's Complaint and, at the same time, requested that a hearing be held in the matter. 

[D&O at 1; Respondent's "Response to Complaint" at 1) Thereafter, on August 23, 

2002, the Chief ALJ assigned the matter to ALJ Edwin M. Bladen. [D&O at I; Notice of 

Assignment) Via a Scheduling Order dated October 15, 2002, the ALJ scheduled the 

Hearing in the matter for December 18, 2002. [D&O at 2; Scheduling Order J On 

November 2, 2002, the ALJ issued an "Amended Scheduling Order", rescheduling the 

hearing for December 20, 2002. [D&O at 2; Amended Scheduling Order) Via a six-page 

hand-written letter, received by the ALJ on December 16, 2002, Respondent requested a 

postponement of the hearing due to the fact that his father was in the process of 

undergoing cancer treatment and because Respondent was having difficulty contacting 

two unnamed witnesses that he had hoped to call on his behalf at the hearing. [D&O at 2; 

Respondent's Request for Postponement of the Hearing at 1-4] Via a "Decision on 

Respondent's Motion to Continue Hearing" dated December 16, 2002, the ALJ denied 

Respondent's request for a postponement of the Hearing and directed Respondent to 

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MIRGEAUX No. 2645 

appear at the previously scheduled hearing on December 20, 2002. [D&O at 2; Decision 

on Respondent's Motion to Continue Hearing at 1-4]. 

The hearing was held, as scheduled, on December 20, 2002, at Marine Safety 

Office, Paducah, Kentucky. Because Respondent failed to appear at the hearing, the 

Coast Guard Investigating Officer requested that the AU enter an order of default 

pursuant to 33 C.F.R. § 20.705 and 33 C.F.R. § 20.310. [D&O at 2] Pursuant to Coast 

Guard regulation, the ALJ detennined that Respondent's failure to appear was "without 

good cause" and concluded that "[t]he default of Respondent constitutes an admission of 

all facts as alleged" in the Coast Guard's Complaint. [D&O at 2] As a result, the ALJ 

found Respondent to be a user of dangerous drugs and ordered the revocation of 

Respondent's license. [D&O at 3] 

The ALJ's D&O was served on Respondent on December 30, 2002, and 

Respondent filed a timely Notice of Appeal, via Priority U.S. Mail on January 22, 2003. 

Coast Guard regulations require that an individual applying for an appeal submit both a 

notice of appeal and an appeal brief. 33 C.F.R. § 20.1001; 33 C.F.R. § 20.1003. Due to 

the extensive nature of Respondent's Notice of Appeal, I will treat it as both the required 

Notice of Appeal and Appeal Brief. Therefore, this appeal is properly before me. 

APPEARANCE: Respondent appeared prose. The Coast Guard Investigating 

Officer was CWO J.M. Baier, stationed at Marine Safety Office Paducah, Kentucky. 

FACTS 

At all times relevant herein, Respondent held the above-captioned license. 

Respondent is licensed as an Operator ofUninspected Towing Vessels upon the 

Inland Waters of the United States excepting Waters Subject to the International 

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MIRGEAUX No. 2645 

Regulations for Preventing Collisions at Sea, 1972; and as a Radar Observer-Rivers. 

[D&O at 2; LO. Exhibit I]. 

While serving under the authority of his license, and while under the employ of 

Missouri Barge Lines, on April 2, 2002, Respondent was selected for random drug testing 

in accordance with the requirements set forth at 46 C.F.R. § 16.230. [D&O at 2-3] As a 

result of his selection for random testing, Respondent provided a urine sample to 

Ms. Sheila Edmonds of Roche Bio Medical. [D&O at 2-3; 1.0. Exhibit 3] As part of her 

normal routine, during the specimen collection, Ms. Edmonds asked Respondent to 

submit his urine and fill out the Drug Testing Custody and Control Form (DTCCF) which 

acknowledged that he had given the specimen, that the specimen was sealed in tamper 

proof bottles, and that the infonnation provided on the fonn was true and accurate. 

[D&O at 2] Respondent's urine sample was tested at Laboratory Corporation of 

America, which confirmed via Gas Chromatography and Mass Spectrometry (GC/MS) 

that the sample was positive for the presence of amphetamine/methamphetamine. [D&O 

at 2; LO. Exhibit 3] A Medical Review Officer, confirmed the positive test results. 

[D&O at 2; 1.0. Exhibit 4] 

BASES OF APPEAL 

This appeal has been taken from the Order imposed by the ALJ finding proved the 

charge of use of or addiction to the use of dangerous drugs and revoking Respondent's 

merchant mariner license. As I indicated above, Respondent's Notice of Appeal contains 

sufficient argument to allow me to treat the Notice as his Appeal Brief. Therefore, I have 

summarized the substance of Respondent's Notice of Appeal/Appeal Brief and have 

divided his assignments of error into two arguments: 

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MIRGEAUX No. 2645 

I Respondent alleges that the AL!'s decision is 'full of errors and 

omissions" and that the decision "subtly accused [him] of lying". To 

support his assertion, in this regard, Respondent contends that all 

correspondence in the instant proceeding was sent to an incorrect 

address, provided to the Coast Guard by Respondent's employer. 

II Respondent contends that the AL! erred by refusing to grant his request 

for a postponement. 

OPINION 

I. 

Respondent alleges that the ALi's decision is "full of errors and omissions" and that the 

decision "subtly accused [him} of lying". To support his assertion, in this regard, 

Respondent contends that all correspondence in the instant proceeding was sent to an 

incorrect address, provided to the Coast Guard by Respondent's employer. 

Respondent's first assertion, though not expressly stated as such, seems to be that 

his due process rights have been violated throughout the instant proceedings because the 

Coast Guard did not correspond with him at the correct address; After a thorough review 

of the record, I find Respondent's argument to be without merit. 

I have held that Respondent has a duty to provide the Coast Guard with his proper 

address. Appeal Decision 1399 (NOV AK). At the same time, it is well settled that 

where service of process is technically incorrect, but the Respondent receives actual 

notice in time to preserve his rights, there is no need for a dismissal. Berhalter v. Irmish, 

75 F.R.D. 539 (W.D.N.Y. 1972); Cf Howse v. Zimmer, 109 F.R.D. (D. Mass. 1986); In 

re Vincze, 230 F.3d 297 (7th Cir. 2000) (holding that service is valid even if mailed to an 

incorrect address as long as the address was the last listed by debtor on documents filed 

with the court.); Baker v. Latham Sparrowbush Assocs., 72 F.3d 246 (2d Cir. 19995) 

(holding that although pleadings were sent to an incorrect address, Corporation could not 

claim service was constitutionally defective where Corporation's president had received 

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MIRGEAUX No. 2645 

actual notice of the commencement of the lawsuit in ample time to appear and protect 

Corporation's interests). Whether the Coast Guard corresponded with Respondent at his 

proper address (the record shows that the Coast Guard sent all documentation to 

Respondent's brother's address, Respondent's address ofrecord with his employer, 

Missouri Barge Lines), or not, I see no evidence to indicate that Respondent was not 

afforded every opportunity to preserve his rights in the instant proceedings. The record 

shows that Respondent received notice of the Complaint and that the AU accommodated 

him by granting an extension after he alleged that the Coast Guard had sent the 

CompJaint to the wrong address. In addition, the record shows that although the 

Amended Scheduling Order was allegedly posted to the incorrect address, Respondent 

admits that he received the Order on the day that it was served, December 6, 2002. 

[Respondent's Motion to Adjourn at l] Based upon this information, and the fact that the 

Hearing Officer allowed the case to remain open after Respondent failed to meet his 

initial filing deadlines, I see no evidence in the record to indicate that Respondent's rights 

have, in any way, been violated by the instant proceedings and I find Respondent's first 

argument to be without merit. 

II. 

Respondent contends that the AL! erred by refusing to grant his request for a 

postponement. 

In effect, Respondent next contends that the ALJ abused his discretion by refusing 

to grant his request for an adjournment. Although Respondent does not submit any 

additional evidence to support his assertion on appeal, Respondent seems to contend that 

the evidence that he presented to the ALJ, including his arguments that his father was in 

the process of undergoing cancer treatment and needed Respondent's assistance in 

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MIRGEAUX No. 2645 

reaching the treatment center and the fact that he was unable to contact two unnamed 

witnesses that would support his defense at the hearing, provided sufficient cause for the 

ALJ to postpone the Hearing. After a thorough review of the record, I find Respondent's 

argument, in this regard, to be without merit. 

I have long stated that I will only overturn the decision of the ALJ if his findings 

are arbitrary, capricious, clearly erroneous, or based on inherently incredible evidence. 

Appeal Decisions 2640 CP ASSARO), 2584 (SHAKESPEARE), 2570 (HARRIS), gf[ 

NTSB Order No. EM-182 (1996), 2390 (PURSER), 2363 CMANN), 2344 CKOHAJDA), 

2333 CAY ALA), 2581 (DRIGGERS), and 2474 CCARMIENKE). After a review of the 

evidence that Respondent submitted to support his request for postponement of the 

hearing and in light of the fact that the scheduling of hearings in Suspension and 

Revocation proceedings is solely within the discretion of the ALJ, for the reasons 

discussed below, I do not find that the ALJ erred in denying Respondent's request for a 

postponement of the hearing. See 33 C.F.R. § 20.704. 

The record shows that the ALJ fully considered the arguments that Respondent 

raised to support his request for a postponement/adjournment in denying Respondent's 

request. With respect to Respondent's assertion that he was the only person who could 

take his father to his cancer treatments, the ALJ noted that "(i]n most communities there 

are various volunteer and charitable services available to assist persons such as 

Respondent's father to be transported to and from radiation therapy'' and added that 

"Respondent has not infonned this Judge whether any such service or organization exists 

or not in the father's geographic area and whether any such alternative transportation is 

available." [Decision on Respondent's Motion to Continue Hearing at 2] With respect to 

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MIRGEAUX No. 2645 

Respondent's contention that he could not contact two witnesses necessary to support his 

defense, the ALJ noted that "Respondent informs me he really has no concrete 

infonnation on the location or identity of either of these two witnesses" and, based upon 

that fact, that Respondent's "claim that these witnesses will support his defense theory 

are speculative." Based upon his assessment of the evidence that Respondent submitted 

in support of postponement, the ALJ stated as follows: 

I am therefore not persuaded that sufficient and sound reason has been 

presented which militates in favor of adjournment. I am especially 

reluctant to adjourn this hearing in light of the clear evidence of the lack of 

prompt and responsible communication and cooperation emanating from 

Respondent. On two occasions now the deadline has arrived to face a 

required answer or appearance in this matter [and now] does Respondent 

come forth at the very last minute pleading a need for more time. 

[Decision on Respondent's Motion to Continue Hearing at 3] 

Therefore, the record clearly shows that the ALJ considered the evidence that 

Respondent submitted in denying Respondent's request for a postponement of the 

hearing. Respondent has not submitted any evidence to support a conclusion that the 

ALJ was either arbitrary or capricious or that he abused his discretion in failing to grant 

Respondent's request for a postponement. Therefore, I find Respondent's second 

argument to be without merit. 

CONCLUSION 

The findings of the ALJ had a legally sufficient basis. The ALJ's decision was 

not arbitrary, capricious, or clearly erroneous. Competent, substantial, reliable, and 

probative evidence existed to support the findings of the ALJ and the hearing was 

conducted in accordance with applicable law. Therefore, I find Respondent's bases of 

appeal to be without merit. 

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MIRGEAUX NO. I 2645 

ORDER 

The order of the ALJ, dated at Seattle, Washington on December 30, 2002, is 

AFFIRMED. 

JV~/@dMJJf T.J. BARRETT 

V~ce Admiral, U.S. Coast Guard 

Vice Commandant 

/~ /J I 

Signed at Washington, D.C. this _L day of~' 2004. 

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