UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITEDSTATESCOASTGUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

ERIC JAMES SERIGNY, 

Respondent. 

Docket Number CG S&R 02-0667 

CG Case No. 1487594 

DECISION AND ORDER 

Issued: September 25 2003 

Issued by: Honorable Archie R. Boggs, Administrative Law Judge 

Appearances: 

LTJG Boris Towns 

Investigating Officer 

Jim Wilson 

Assistant Chief Investigations 

U.S. Coast Guard 

MSO Morgan City, Room 243 

800 David Drive 

Morgan City, Louisiana 70380-1304. 

For the Coast Guard 

Eric James Serigny, ProSe 

[REDACTED] 

For the Respondent 

- 1 -
PRELIMINARY STATEMENT 

The United States Coast Guard (Coast Guard) initiated this administrative action 

seeking revocation ofMerchant Mariner's License Number 962472 issued to Eric James 

Serigny (Respondent). This administrative action was brought pursuant to 46 U.S.C. 

7703(1 )(B) and its underlying regulations codified at 46 CPR Part 5. 

On October 30, 2002, the Coast Guard issued a Complaint alleging misconduct 

for refusing to submit to a random drug test as requested on September 19, 2001. An 

Answer dated November 1, 2002, was received by the Administrative Law Judge 

Docketing Center on March 21, 2003. Respondent denied all jurisdictional and factual 

allegations specified in the Complaint and requested a hearing. The undersigned 

Administrative Law Judge (ALJ) issued an Order scheduling the hearing for June 4, 

2003, in Morgan City, Louisiana. 

The hearing commenced at the Marine Safety Office on June 4, 2003, and the 

Coast Guard moved to amend the Complaint. The Investigating Officer (10) explained 

that on September 19, 2001, date of the alleged misconduct, Respondent's license 

number was 967309. Further, Respondent's license was renewed in November 2001 and 

his license number became 962472. The proposed Amended Complaint reflected 

Respondent's new license number, 962472. A second amendment to the Complaint was 

requested to change the factual allegation of- the use of or addition of dangerous drugs, to 

the charge of misconduct. A third amendment was made to include the name of the 

vessel Respondent was aboard, M/V SEA FOX. Respondent received a copy of the 

complaint and after full review, he did not object to the amendments. The Coast Guard's 

2 
motion was granted and the Complaint was amended to reflect the amended license 

number, the factual allegation of misconduct, and vessel name. 

The hearing was conducted in accordance with the Administrative Procedures Act 

as amended and codified at 5 U.S.C. 551-559, and Coast Guard procedural regulations set 

forth at 33 CFR Part 20. The 10 presenting the case on behalf of the Coast Guard moved 

for admission of three exhibits and presented the testimony of two witnesses. 

Respondent moved for the admission of one exhibit, which contained several documents 

reflecting drug test results and letters of recommendation. The list of witnesses and 

exhibits is contained in Attachment A. Both parties waived the opportunity to file Posthearing briefs. 

After careful review of the facts and applicable law in this case, I find that the 

Coast Guard has NOT PROVED by a preponderance of reliable, probative, and 

substantial evidence that Respondent Serigny refused to submit to a random drug test in 

violation 46 U.S.C. 7703(1)(B) and 46 CFR 5.27. 1 

FINDINGS OF FACT 

The Findings of Fact are based on a thorough and careful analysis of the documentary 

evidence, testimony of witnesses, and the entire record. 

1. At all relevant times mentioned herein and specifically on or about September 19, 

2001, through June 4, 2003, the above-captioned Respondent was the holder of 

1 During the pendancy of this case, the United States Coast Guard transferred from the Department of 

Transportation to the Department of Homeland Security. Pursuant to the Savings Provision ofHR 5005 

§ 1512 (PL 107-296), pending proceedings are continued notwithstanding the transfer of the Agency. 

3 
Merchant Mariners License Number 962472 (formerly License Number 967309) 

issued by the United States Coast Guard. (Tr. 1 0-13). 2 

2. On the date of the violation, September 19, 2001, Gary Sercovich was the owner 

of Offshore Crewboats (Offshore) and he affirmed that Offshore had an 

established drug testing program. (Tr. 21). 

3. Respondent was employed as a captain by Offshore for approximately a year and 

a half. Mr. Sercovich testified that he did not have any "major" problems with 

Respondent during his employment with Offshore. (Tr. 24). 

4. Respondent was scheduled to work on the M/V SEA FOX from September 16, 

2001, through the duration of the job. 

5. According to Offshore's Invoice, on September 19, 2001, the job was interrupted 

and a vessel change occurred. The M/V SEA HAWK replaced the M/V SEA 

FOX for two days. Then, on September 21, 2001, the SEA FOX regained its 

responsibilities and completed the job on September 23, 2001. (Tr. 32-34; Gov't 

Ex. 2). 

6. It is alleged that, on September 19, 2001, two attempts were made to contact the 

M/V SEA FOX regarding the random drug test that had been scheduled. Mr. 

Sercovich made the first attempt by cellular telephone. The certified urine 

2 The citations in this Initial Decision and Order are as follows: Transcript followed by the page number, 

(Tr. __j; Agency Exhibit followed by number (Gov't Ex. _); and Respondent Exhibit followed by a 

letter (Resp Ex._). 

4 
collector, Kim Baril, General Manager for Bud's Boat Rental, made the second 

attempt via VHF radio. (Tr. 26, 58). 

7. On ten occasions during the hearing, Mr. Sercovich testified that when he 

contacted the M/V SEA FOX for a random drug test, he did not know which 

crewmember he talked to on September 19, 2001. Mr. Sercovich testified that he 

either talked to Respondent or the other crewmember aboard the M/V SEA FOX. 

(Tr. 22, 26, 39, 40, 46, 47, 51 and 52). 3 

8. Mr. Sercovich testified that he did not know if Respondent received the message 

to report for random drug testing. (Tr. 48). Conversely, Mr. Sercovich later 

testified that he was sure Respondent knew to appear for random drug testing 

because Respondent and his brother were the only crewmembers on the boat. (Tr. 

52). 

9. During cross-examination of Mr. Sercovich by Respondent, the date of 

Respondent's employment termination with Offshore was disputed. According to 

Respondent, his last day of employment was September 18, 2001; however Mr. 

Sercovich testified that Respondent tenninated his employment with Offshore on 

September 19, 2001. (Tr. 40-42). 

10. An invoice dated September 25, 2001, was used by Mr. Sercovich to refresh his 

memory, which enabled him to testify to facts regarding vessel and crew change 

3 The other crewmember identified at the hearing was Respondent's brother, "C.J." (Tr. 39-40). 

5 
from the M/V SEA FOX to the M/V SEA HAWK. (Tr. 24, 25, 32-35, and 45; 

Gov't. Ex. 2). 

11. Generally, when Mr. Sercovich conducts random drug testing, he will contact the 

boat and whoever answers the radio or "phone" is instructed to advise the crew to 

report for drug testing. Mr. Sercovich testified that he does not limit his 

communications exclusively to the captain; he talks with whoever answers the 

radio or call. (Tr. 42-43). 

12. Mr. Baril also testified that he is uncertain whether he talked with Respondent or 

his brother to notify the crew of the M/V SEA FOX of the random drug test. (Tr. 

57-60, 65, 72). 

13. Mr. Baril testified that he has worked with Respondent on several occasions but 

has only met Respondent's brother once or twice. (Tr. 63-64). Further, Mr. Baril 

stated that Respondent and his brother sound similar on the radio. (Tr. 58-60, 65, 

72). 

14. Mr. Baril testified that he was not certain ofthe number of crewmembers on the 

M/V SEA FOX, but he surmised that it was possible that another deckhand had 

left prior to the boat docking. (Tr. 71, 74). 

15. Typically, when a mariner fails to appear for a random drug test, Mr. Baril will 

complete a form notifying the Coast Guard. In the case at bar, Mr. Baril 

neglected to complete the form and relied on Mr. Sercovich to forward the 

6 
information to the Coast Guard on the following day, September 20, 2001. (Tr. 

69-70, 74; Gov't Ex. 1). 

16. Respondent testified that he never received notification of the random drug test. 

(Tr. 77, 79). 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Respondent and the subject matter of the hearing are properly within the 

jurisdiction vested in the United States Coast Guard under 46 U.S.C. 7703. 

2. At all relevant times, Respondent was the holder of United States Coast Guard 

License Number 962472 (formerly License Number 967309). 

3. Respondent is the holder of a license subject to random drug testing under 46 

U.S.C. 7702(c)(2) and 46 CFR 16.230. 

4. The Coast Guard has NOT PROVED by a preponderance of reliable, probative, 

and substantial evidence that on September 19, 2001, that Offshore Crewboats 

notified Respondent to report for a random drug test. 

DISCUSSION 

The purpose of Coast Guard suspension and revocation proceeding is to promote 

safety at sea. See 46 U.S.C. 7701. Under 46 CFR 5.19, the Commandant delegated to 

the Administrative Law Judges, the authority to suspend or revoke a license or certificate 

for violations arising under 46 U.S.C. 7703. In this case, the Coast Guard has charged 

Respondent with misconduct under 46 U.S.C. 7703(1)(B) alleging he refused to submit to 

a random drug test. The Coast Guard seeks revocation of Respondent's license. 

7 
There are two grounds supporting dismissal with prejudice because the Coast 

Guard has failed to prove the allegations in the complaint by a preponderance of the 

evidence. First, the Coast Guard has failed to make an evidentiary showing at the hearing 

of jurisdiction. Second, the evidence and testimony of the Coast Guard witnesses does 

not establish that Respondent received notice of the random drug test and refused to 

submit to testing in violation of 46 CFR Part 16 and 49 CFR Part 40. Each ground for 

dismissal is discussed in detail below. 

A. JURISDICTION 

Respondent claimed in his Answer, that the Coast Guard lacked jurisdiction over 

his license. "Jurisdiction is a question of fact and must be proven." Appeal Decision 

2620 (COX), 2, (citing Appeal Decision 2425 (BUTTNER), 3). Since jurisdiction is a 

dispositive issue, Respondent's claim of lack of jurisdiction must be determined before 

the substantive issue of misconduct is reviewed. 

Title 46 of the United States Code Section 7703 provides that a mariner's license 

may be suspended or revoked if the holder is acting under the authority of that license 

and has committed an act of misconduct. 46 U.S.C. 7703(1)(B) (emphasis added). The 

Coast Guard has interpreted the requirements of acting under the authority of a license in 

46 CFR 5.57 which provides, "A person employed in the service of a vessel is considered 

to be acting under the authority of a license, certificate or document when the holding of 

such license, certificate or document is: 1) Required by law or regulation; or 2) Required 

by an employer as a condition for employment." See also Appeal Decision 2620 (COX), 

2. 

8 
Here, the Coast Guard declared in its opening statement and closing argument that 

Respondent served on the M/V SEA FOX and was acting under the authority of his Coast 

Guard issued license while employed by Offshore on September 19, 2001. (Tr. 15-18, 

80-82; Gov't Ex. 1). However, the Coast Guard failed to admit facts into the record 

supporting its allegation of jurisdiction. The record does not contain testimony or 

exhibits that demonstrate Respondent was acting under his license which was required by 

law/regulation or that Respondent was required to hold a license as a condition of his 

employment with Offshore, as a captain. 

Review of the hearing transcript reveals information about Respondent's license, 

authorizing him to serve as a master, was read into the record at the beginning of the 

hearing by the ALJ: 

ADMINISTRATIVE LAW JUDGE: This license authorizes Mr. Serigny 

to serve as Master of steam or motor vessels of not more than 100 gross 

registered tons, domestic tonnage, upon near coastal waters, also 

authorized to engage in commercial towing. 

(Tr. 10). Respondent proceeded prose, and during his cross-examination of Mr. Baril, he 

stated: 

Well, there was only two crew members [sic] on the boat, and it was a 

twenty-four hour boat, and that's the reason I wound up leaving for it 

because I was tired of working by myself. I was the only Master on the 

boat. 

(Tr. 40). These excerpts from the transcript do not constitute testimony offered by the 

Coast Guard to prove Respondent was acting under the authority of his license as 

required by law or as required by Offshore as a condition for employment. 

Further, the record lacks evidence of the M/V SEA FOX's specifications. Facts 

describing the vessel would have enabled this ALJ to make a determination whether 

9 
Respondent was required by law or regulation to hold a license while employed in the 

service of the vessel. To find the Coast Guard proved jurisdiction would be mere 

speculation. Thus, an order dismissing this matter is appropriate. Moreover, for the 

reasons stated below, dismissal is also appropriate because the Coast Guard failed to meet 

its burden of proving the charge of misconduct by a preponderance of evidence. 

B. Standard of Proof and Burden of Proof 

Misconduct has been defined as follows: 

Misconduct is human behavior which violates some formal, duly 

established rule. Such rules are found in, among other places, statutes, 

regulations, the common law, the general maritime law, a ship's regulation 

or order, or shipping articles and similar sources. It is an act which is 

forbidden or a failure to do that which is required. 

46 CFR 5.27. In this case, the formal duly established rule is found in Title 49 Part 40 

Section 191 (c) of the Code ofF ederal Regulations that provides, if an employee refuses a 

drug test, he will incur the consequences specified under the appropriate DOT agency. 

The consequence specified by Coast Guard regulations for refusal to take a drug test is a 

suggested range of 12-24 months suspension. 46 CFR 5.569. Further, the 

Commandant has held that the suggested range for an appropriate order does not bind an 

ALJ and a sanction of revocation for refusal to test was not excessive nor an abuse of 

power. See Appeal Decision 2578 (CALLAHN), 5. 

The parties presented conflicting testimony regarding Offshore's effort to notify 

Respondent of the random drug test. According to the Coast Guard, two attempts were 

made to contact Respondent on September 19, 2001; once by cellular telephone and a 

second attempt by VHF radio. Respondent claims he never received notification to report 

for random drug testing. Thus, it is necessary for the undersigned ALJ to determine 

10 
whether the Coast Guard proved by a preponderance of reliable, probative, and 

substantial evidence that Respondent received notification to appear for a random drug 

test and whether his failure to appear constituted misconduct. 

The Administrative Procedures Act (APA), as amended and codified at 5 U.S.C. 

551-559, governs Coast Guard suspension and revocation hearings. 46 U.S.C. 7702(a). 

The AP A does not authorize imposition of administrative sanctions unless charges have 

been proved by reliable, probative and substantial evidence. 4 5 U.S.C. 556(d); Steadman 

v. Securities and Exchange Commission, 450 U.S. 91, 98 (1981). In Steadman, the 

Supreme Court held that the degree of proof prescribed by Congress for administrative 

law proceedings conducted under the AP A is the preponderance of evidence standard. 

Id. at 102. Therefore, preponderance ofthe evidence standard is applied in Coast Guard 

suspension and revocation proceedings. See 33 CFR 20.701; see also Appeal Decision 

2468 (LEWIN), 6; Appeal Decision 2477 (TOMBARI) 4; Appeal Decision 2637 

(TURBEVILLE), 7. The Supreme Court described preponderance of the evidence as 

requiring "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 v. Construction Laborers 

Pension Trust, 508 U.S. 602, 622 (1993) (quoting In Re Winship, 397 U.S. 358, 371-372 

(1970) (Harlan J., concurring). 

4 The Supreme Court interpreted Congress' use of the word "substantial" to signify quantity of 

evidence. Steadman v. Securities and Exchange Commission, 450 U.S. 91, 98 (1981). 

- 11 -
Here, Mr. Sercovich stated ten times during the hearing that he did not know 

whom he communicated with when he contacted the boat for a random drug test. Mr. 

Sercovich testified that he either talked with Respondent or his brother. (Tr. 22, 26, 39, 

40, 46, 47, 51, and 52). Mr. Baril is also uncertain as to whom he communicated with 

when he contacted M/V SEA FOX. Mr. Baril testified that Eric and his brother sound 

similar on the radio, which added to his uncertainty. (Tr. 59, 60,65). In contrast, 

Respondent testified that he did not receive notification of the random drug test and he 

was not aware of the test until he was served with the Complaint. (Tr. 77, 79). The 

Coast Guard presented two witnesses, neither of whom were able to verify that they 

notified Respondent. 

As the finder of fact, I must determine if the evidence submitted by the Coast 

Guard proves by a preponderance of the evidence that Respondent failed to appear for a 

random drug test. Restated, the evidence must be sufficiently reliable and probative to 

demonstrate the truth of the matter asserted with a degree of certainty. I do not find the 

witnesses or exhibits presented by the IO to be reliable nor do I find substantial evidence 

in the record to prove Respondent was notified of random drug testing. I conclude the 

Coast Guard did not prove by a preponderance of the evidence that Respondent received 

notification to submit to a random drug test and that his failure to appear was misconduct. 

12 
ORDER 

WHEREFORE, 

IT IS HEREBY ORDERED THAT the Complaint be DISMISSED with 

prejudice. 

Dated this (}.,5 day of September, 2003 

New Orleans, Louisiana 

ARCHIE R. BOGGS 

Administrative Law Jud 

U.S. Coast Guard 

13