UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_________________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

RAYMOND DEAN SIMONES 

Respondent 

_________________________________ 

Docket Number 2010-0188 

Enforcement Activity No. 3716469 

DEFAULT ORDER

Issued: July 08, 2010

By Administrative Law Judge: 

Honorable George J. Jordan

Appearances: 

LTJG Peter J. Raneri 

Sector Portland 

For the Coast Guard 

RAYMOND DEAN SIMONES, Pro se 

For the Respondent 
DEFAULT ORDER 

AND REASONS GRANTING THE AGENCY’S MOTION FOR DEFAULT 

This administrative proceeding concerns the suspension or revocation of the merchant 

mariner’s credential issued to Raymond Simones (Respondent) pursuant to 46 U.S.C. §§ 7701 et

seq. and United States Coast Guard (Coast Guard) regulations found at 46 C.F.R. Part 5. This 

proceeding is conducted under the Administrative Procedure Act (5 U.S.C. § 551 et seq.) and the 

Rules of Practice, Procedure, and Evidence for Administrative Proceedings of the Coast Guard 

found at 33 C.F.R. Part 20. The Coast Guard initiated this proceeding by filing a Complaint 

seeking to suspend Respondent’s Coast Guard issued Credentials for Respondent’s alleged 

refusal to submit to a chemical test ordered by his employer while acting under the authority of 

his credential. The Coast Guard alleges this refusal constitutes Misconduct. This matter comes 

before me for review and approval of the Coast Guard’s Motion for Default under 33 CFR § 

20.310. [Docket 2010-0188, Docket Item 05] 

I. PROCEDURAL HISTORY 

1. The Coast Guard initiated an administrative proceeding seeking Revocation of 

Respondent’s Merchant Mariner Document (MMD) by filing a Complaint on April 26, 

2010. [Docket Item 01] 

2. The Complaint alleged Misconduct and stated as its jurisdictional basis that Respondent 

is the holder of an MMD and that Respondent acted under the authority of that MMD on 

February 19, 2010 by serving as a Crew Member aboard the vessel POLAR RANGER, as 

required by an employer and as a condition of employment. 

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3. The Complaint included the following factual allegations: 

1. On February 19th 2010 Respondent was employed by Dunlap Towing 

Company and was to serve in the capacity of crewmember aboard the towing 

vessel POLAR RANGER. 

2. Prior to getting underway on February 19th 2010, Respondent was directed to 

submit to a random urinalysis as directed by his marine employer. After 

notification of random urinalysis requirement, respondent gathered belongings 

and departed sight [sic] without submitting to random urinalysis. 

3. Coast Guard alleges that Respondent committed an act of misconduct by 

refusing to submit to random drug test as directed by his marine employer. 

4. On April 30, 2010, the Coast Guard filed a return of service form indicating that 

Respondent was served with a copy of the Complaint by Certified Mail, Return Receipt 

on April 30, 2010. [Docket Item 04] 

5. The Coast Guard ALJ Docketing Center had not received an answer from Respondent as 

of June 1, 2010. 

6. The Coast Guard filed its Motion for Default with the Coast Guard ALJ Docketing 

Center on June 1, 2010 [Docket Item 05] 

7. On June 9, 2010, the Coast Guard filed a Return of Service form indicating that the 

Motion for Default was received on June 4, 2010. Someone other than Respondent 

signed the Return of Service form. [Docket Item 07] 

8. The Coast Guard ALJ Docketing Center received no further filings, and on June 29, 

2010, this matter was assigned to me for review and disposition. [Docket Item 08] 

II. STANDARD OF REVIEW 

Because Respondent failed to respond to both the Complaint and the Motion for Default, 

the threshold question is whether a default has occurred. This process involves reviewing the 

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record to determine whether: (1) there is been proper service of the Complaint; (2) the period for 

filing an Answer has expired; and (3) there has been proper service of the Motion for Default. 

If a default has occurred, that is not the end of the inquiry. If there was a default, then the 

judge’s role shifts to a review of the pleadings to determine whether: (1) the Coast Guard has 

jurisdiction in this matter; (2) the Complaint is legally sufficient; and (3) the proposed sanction 

of revocation is consistent with Coast Guard regulation and policy. 

There was no hearing in this matter. Because this case arises from a default action, the 

facts supporting the jurisdictional and factual allegations are found solely within the confines of 

the Complaint and the record. The review is therefore limited to the Docket Record. See Appeal 

Decision 2677 (WALKER) (2008). 

III.ANALYSIS 

A. Default 

The record reveals that the Coast Guard has filed sufficient evidence that the Complaint 

was properly served on Respondent at Respondent’s last known address on April 26, 2010. 

Under 33 C.F.R. § 20.306, Respondent had until May 24, 2010 to file an Answer to the 

Complaint. No such Answer was received. 

On June 1, 2010, the Coast Guard filed a Motion for Default. The record shows the 

Motion for Default was delivered on June 4, 2010. Further, the person who signed for the 

motion was not Respondent. Under 33 C.F.R. § 20.310(b), Respondent had until June 28, 2010 

to file a reply to the Motion. No response has been received. 

The Complaint and Motion were properly served on Respondent. The Commandant has 

considered service in default cases several times. In Appeal Decision 2647 (Brown) (2004), the 

Commandant stated: 

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A review of the applicable procedural rules shows that personal service is not 

required in Coast Guard Suspension and Revocation proceedings. 33 C.F.R. § 

20.304 establishes the service requirements applicable to the instant case. 

Pursuant to 33 C.F.R. Table 20.304(D), a Complaint may be served by either 

Certified mail with return receipt requested, express courier service that has a 

receipt capability, or by personal delivery. In addition, 33 C.F.R. Table 20.304(F) 

states that a Complaint must be sent to “[t]he last known address of the 

residence...of the person to be served.” Since the record shows that the 

Complaint was properly mailed to Respondent’s address of record (by both 

Certified mail and express courier) and that the complaint was received at that 

address, service was completed in accordance with Coast Guard regulation. 

Under 33 C.F.R. § 20.304(g)(3)(i), service was complete when the document was 

delivered to Respondent’s address and signed for by a person of suitable age and discretion. 

Here, the Certified Mail Receipt, Return Receipt postcard and the Coast Guard’s Certificate of 

Service establish that the service copy of the Motion for Default was properly addressed, mailed, 

forwarded and delivered. Thus, receipt by Respondent can be presumed. 

Accordingly, Respondent has not timely responded to the Complaint as required by 33 

C.F.R. § 20.308(a) or to the Motion for Default as required by 33 C.F.R. § 20.310(b). Therefore 

the Respondent is found to be in default. Default by respondent constitutes, for purposes of this 

action, “an admission of all facts alleged in the complaint and a waiver of ...his right to a hearing 

on those facts. 33 C.F.R. § 20.310(c) 

B. Jurisdiction 

Although this case arises from a default action within which all alleged facts are 

considered admitted, the burden of establishing jurisdiction nonetheless remains. See 33 C.F.R. 

§ 20.310(c); Appeal Decision 2677 (WALKER) (2008); see also Appeal Decision 2656 

(JORDAN) (2006). 

Respondent is charged with Misconduct in this proceeding. The Commandant in Walker

stated that: 

46 U.S.C. § 7703 makes clear that to establish jurisdiction in a misconduct case, 

the action of misconduct alleged must be proven to have occurred while the 

mariner was “acting under the authority” of his merchant mariner credential. A 

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definition of the term “acting under the authority” is found at 46 C.F.R. § 5.57. 46 

C.F.R. § 5.57(a) states, in relevant part, that a person employed in the service of a 

vessel is “acting under the authority” of a merchant mariner credential when the 

holding of the credential is either “[r]equired by law or regulation” or “[r]equired 

by an employer as a condition for employment.” 

As in Walker, this case arises from a default action, and the facts supporting the jurisdictional 

allegation are found solely within the confines of the Coast Guard’s Complaint. The Complaint 

alleged that Respondent acted under the authority of his MMD “on February 19, 2010 by serving 

as Crew Member aboard the vessel POLAR RANGER as required by an employer as a condition 

of employment [.]” 

The specificity of this allegation distinguishes this case from Walker, in which it was 

only alleged that Respondent was a “holder” of a credential and was “silent as to how—or even 

if—Respondent was ‘acting under the authority’ of his credential when the test was requested.” 

Here, there is an adquate allegation, now deemed admitted, that supports jurisdiction. 

Accordingly, the record supports jurisdiction, and I so find jurisdiction established. 

C. Legal sufficiency of the Complaint 

The Complaint alleges that “[p]rior to getting underway on February 19, 2010, 

Respondent was directed to submit to a random urinalysis as directed by his marine employer. 

After notification of random urinalysis requirement, respondent gathered belongings and 

departed sight without submitting to random urinalysis.” 

Refusal to Submit to Federal Random Drug Test 

 The Transportation Workplace Chemical Testing rules for maritime workers are the 

Coast Guard’s responsibility and are found in 46 C.F.R. Part 16. Coast Guard rules describe the 

federally mandated chemical tests for drugs. Included in those tests are the requirements for 

Random Drug Testing at 46 C.F.R. § 16.230. Part 40 of Title 49, Code of Federal Regulations, 

contains the Department of Transportation’s Procedures for Transportation Workplace Drug and 

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Alcohol Testing Programs. Section 49 CFR 40.191 is entitled: “What is a refusal to take a DOT 

drug test, and what are the consequences?” and it describes the various ways an employee can 

refuse to take a drug test. 46 CFR 40.191(a) includes “[a]s an employee, you have refused to take 

a drug test if you: (1) Fail to appear for any test ... within a reasonable time, as determined by 

the employer ...after being directed to do so by the employer. ... [or] (2) Fail to remain at the 

testing site until the testing process is complete. ” Accordingly, the allegations as deemed 

admitted by Respondent’s default that he was directed to submit to a test but instead gathered his 

belongings and left, are clearly sufficient to support the Misconduct charge in this Complaint. 

 However, I note that this allegation states “After notification of random urinalysis 

requirement, Respondent gathered belongings and departed sight without submitting to random 

urinalysis.” emphasis added. I assume that the word “sight” was intended to be “site.” In any 

event, these allegations are adequate in spite of this simple misspelling. Minor defects in a 

complaint’s specification do not necessarily demand dismissal of an action. See Appeal 

Decision 2545 (JARDIN) (1992). See also Appeal Decision 2585 (COULON) (1997) (“The 

purpose of pleadings is to provide notice and not to make a ritualistic recitation of the details.”) 

Based on the default, the allegation that Respondent refused to submit to a random drug test is 

deemed admitted and the charge of Misconduct is PROVED. 

IV. DISCUSSION CONCERING APPROPRIATE ORDER. 

Having found Respondent in default, the regulations require that I “issue a decision 

against” Respondent. 33 C.F.R. § 20.310(d). In issuing a decision, the ALJ must include the 

disposition of the case including any appropriate order. 33 C.F.R. § 20.902(b) Here, the Coast 

Guard has proposed an order of twenty-four (24) months outright suspension. Respondent failed 

to respond to the Complaint so the underlying facts are proven and there is no evidence of any 

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remedial actions or mitigation by Respondent in the record. The recommended order is 

consistent with the range of orders suggested in the Table entitled “Suggested Range of an 

Appropriate Order” in 46 C.F.R. § 5.569. This Table of Appropriate Orders has been considered 

to be guidance for the ALJ and has been virtually unchanged since 1985. However, the main 

changes to the Table in 1989 and 2001 both deal with the refusal to take chemical tests.1

Longstanding Coast Guard law on the area of appropriate orders states that the order is in 

the discretion of the ALJ and the ALJ is not bound by the table. Other factors may be considered 

in fashioning an appropriate order.2

 However, in Coast Guard v. Moore, NTSB Order No. EM201 (2005), the NTSB disapproved a license revocation order in a refusal to test case because the 

Coast Guard neither proved, nor did the ALJ find, specific factors in aggravation sufficient to 

depart from the guidance provided in 46 C.F.R. Table 5.569. 

Because this is a default case, the record is limited to the pleadings and there has been no 

testimony or documentary evidence in aggravation entered into the record that would trigger a 

greater result than suggested in the Table. Any evidence in aggravation must be found in the 

facts deemed admitted in the pleadings. Several Appeal Decisions have held that revocation may 

be considered an appropriate sanction in refusal to test cases. See Appeal Decisions 2578 

(CALLAHAN) (1996) and 2624 (DOWNS) (2001). However, both of those cases predate the 

NTSB decision in Moore. Subsequently, the Commandant has reiterated the Callahan and 

Downs rationale in Appeal Decision 2666 (SPENCE) (2007) finding revocation appropriate for 

refusal to submit to a chemical test without any reference to Moore. 

However, the NTSB has stated that the Coast Guard’s position concerning revocation in 

refusal cases as set forth in Callahan and Downs is “in conflict with the Coast Guard’s 

 

1

 53 FR 47079, Nov. 21, 1989; and 66 FR 42967, Aug. 16, 2001 2

 An Administrative Law Judge has wide discretion to formulate an order adequate to deter the Appellant’s 

repetition of the violations he was found to have committed. Appeal Decision (2475) (BOURDO)

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articulation of a 12-24 month suspension as the “appropriate” sanction, absent mitigating or 

aggravating factors.” The Board stated that “unless and until the Coast Guard changes its 

regulation, [the Board] will not uphold an upward departure from the policy currently embodied 

in the Coast Guard’s regulation without a clearly articulated explanation of aggravating factors.” 

Moore at 16. Given this record, I cannot provide such an explanation of aggravating factors. 

The Coast Guard’s recommended sanction is consistent with the Moore decision. Accordingly, I 

find that an outright suspension of twenty-four (24) months is an appropriate sanction adequate 

to deter the Respondent’s repetition of this violation and to deter other mariners from refusing to 

submit to random drug tests. 

ORDER

WHEREFORE: 

1. IT IS HEREBY ORDERED that the Coast Guard’s Motion for a Default Order is 

GRANTED; and 

2. IT IS HEREBY FURTHER ORDERED that Respondent’s Mariner’s credential is 

SUSPENDED for TWENTY-FOUR (24) MONTHS from the date the credential is 

surrendered to the Coast Guard; and 

The Respondent must immediately surrender his credential to the Coast Guard. If you 

knowingly continue to use your document after this time, you may be subject to criminal 

prosecution. 

An Administrative Law Judge may set aside this finding of Default under the provisions 

of 33 C.F.R. § 20.310(e) for good cause shown. You may file a motion to set aside the findings 

with the ALJ Docketing Center, Baltimore. 

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 Service of this Order upon the parties will serve as notice to the parties of the triggering 

of their appeal rights as set forth in 33 CFR Subpart J, Section 20.1001. (Attachment A) 

 

__________________________________________________ 

George J. Jordan 

US Coast Guard Administrative Law Judge

Date: July 08, 2010

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