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UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

MICHAEL DAVID GRATTON 

Respondent. 

______________________________ Docket Number: CG S&R 05-0212 

CG Case No. 2310635

 

ORDER

Issued: October 21, 2005

Issued by: Walter J. Brudzinski, Administrative Law Judge

Procedural History

 

This Order is issued in accordance with 33 CFR sections 20.710 and 20.902(c) in that the 

undersigned rendered his initial decision orally from the bench at the close of the hearing on 

October 18, 2005 at Morgan City, Louisiana. Finding Respondent and the subject matter of this 

hearing within the jurisdiction vested in the Coast Guard under 46 U.S.C. 7703 and 7044 and 

that the Coast Guard proved the charges alleged in the Complaint, the undersigned revoked 

Respondent’s license and document at the close of the hearing. Since Respondent voluntarily 

deposited his license and merchant mariner’s document with the Coast Guard on February 10, 

2005 (ALJ Exhibit 1), the Revocation is effective as of that date. 
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The Complaint charges Respondent with 2 counts of Misconduct: “Use of Dangerous 

Drugs” and “Refusal of a Required Drug Screen.” The Complaint alleges that on February 9, 

2005, Respondent advised his employer that he needed help with a drug problem. His employer 

requested that he submit to a chemical test. Respondent replied that he would not submit a 

sample because he “cannot pass it” and that he was “as high as can be.” 

The Coast Guard proposed Revocation. In his timely Answer to the Complaint, 

Respondent, appearing pro se, admitted all factual and jurisdictional allegations but asked that 

his license be suspended, not revoked. 

Law

If it is shown that a holder [of a license, certificate of registry, or merchant 

mariner’s document as per 46 U.S.C. 7704(b)] has been a user of, or addicted to, 

a dangerous drug, the license, certificate of registry, or merchant mariner’s 

document shall be revoked unless the holder provides satisfactory proof that the 

holder is cured. 

46 U.S.C. 7704(c). 

[a] license, certificate of registry, or merchant mariner’s document issued by the 

Secretary may be suspended or revoked if the holder – (1) when acting under the 

authority of that license, certificate, or document . . . (B) has committed an act of 

incompetence, misconduct, or negligence.... 

46 U.S.C. 7703(1)(B) 

Title 46 CFR 5.27 provides that “Misconduct is human behavior which violates some 

formal, duly established rule. Such rules are found in, among other places, statues, 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.” The 

standard of proof is the preponderance of the evidence. 33 CFR 20.701. 
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To show that refusal to take a chemical drug is proscribed conduct, the undersigned 

amended the Complaint by adding the word, “wrongfully” to the beginning of the final sentence 

in the second count. This amendment did not affect Respondent’s notice of the charge. 

Title 46 CFR 5.59 provides that an administrative law judge shall enter an order revoking 

a respondent’s license, certificate or document when - “(a) [a] charge of misconduct for wrongful 

possession, use, sale, or association with dangerous drugs is found proved. . . .” 

As per 46 CFR Table 5.569, the sanction for Refusal to take a Chemical Drug Test is 12 – 

24 months. Under Commandant v. Michael S. Moore, NTSB Order No. EM-201, (2005), a 

sanction beyond that range will not be upheld “without a clearly articulated explanation of 

aggravating factors.” 

Hearing

The Chief Administrative Law Judge originally assigned this case to Judge Jeffie Massey 

on May 27, 2005. Due to Judge Massey’s unavailability secondary to the effects of Hurricane 

Katrina, this case was reassigned to the undersigned. At the hearing, Investigating Officers (IOs) 

ENS Timothy Tilghman, USCG and LTJG Adam Bryant, USCG represented the Coast Guard. 

They presented one witness and introduced one (1) exhibit. Respondent testified on his own 

behalf and introduced one (1) exhibit. 

The Coast Guard’s witness, Mr. Jim Guidry of Kirby Marine, Respondent’s employer, 

testified in pertinent part that on February 9, 2005, the Respondent advised him that he needed 

help with a drug problem. Mr. Guidry requested Respondent to take a chemical drug test. 

Respondent stated that he could not pass the chemical drug test because he had “done an ounce 

of cocaine this week.” When Mr. Guidry asked Respondent if he was currently under the 

influence, Respondent stated that “I am as high as I can be.” Respondent then showed Mr. 
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Guidry the track marks in his arm where he was shooting the drugs and said he “had it bad and 

had never known anyone who had it this bad before.” Mr. Guidry asked Respondent again if he 

was going to refuse to take the drug test and Respondent replied that would not take the test 

because he “could not pass it.” Mr. Guidry then told Respondent that he was terminating his 

employment for his refusal and that his name would be turned into the Coast Guard. The Coast 

Guard would then proceed with action against his license just as if the test were positive. Mr. 

Guidry also observed that Respondent was still acting very erratically and asked him if he was 

able to drive his vehicle, to which Respondent replied in the negative. Mr. Guidry then informed 

Respondent that a hotel room would be provided for him and that he was not to drive until the 

following day, when he was to see the Coast Guard. Mr. Guidry further offered to assist 

Respondent in finding a treatment center but Respondent replied that he already had one in 

Lafayette, Louisiana. Finally, Mr. Guidry testified that Respondent was a good employee and 

that there was no prior reason to believe he was doing drugs. 

After the Coast Guard presented its case, the Respondent testified under oath essentially 

admitting the facts alleged in the Complaint. He offered into evidence a letter from the Louisiana 

Department of Health and Hospitals stating that he is currently enrolled in treatment and asked 

that his license be suspended rather than revoked. 

At the conclusion of the hearing, I found that the Coast Guard had proved both charges. 

Respondent’s drug use admissions and Mr. Guidry’s credible testimony painted a convincing 

picture that Respondent used dangerous drugs and had wrongfully refused to submit to a 

chemical drug test. There being no request from the parties to submit proposed findings and 

conclusions, I announced my decision orally from the bench in accordance with 33 CFR 

20.902( c ). 
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Sanction

Section 46 U.S.C. 7704(c) requires that a merchant mariner’s document be revoked if it is 

shown that he has been a user of or addicted to a dangerous drug unless the holder provides 

satisfactory proof that he is cured. Respondent’s Exhibit A states that he is currently enrolled in 

a treatment program but has not yet successfully completed it. 

To establish cure under 46 U.S.C. 7704(c), the mariner must, at a minimum: (1) 

successfully complete a bonafide drug abuse rehabilitation program; and (2) demonstrate a 

complete non-association with drugs for a minimum of one year following the successful 

completion of the drug abuse program. Decision on Appeal 2638 (PASQUARELLA) (2003). 

Further, 

the MRO [Medical Review Officer] must determine that the individual is drugfree and the risk of subsequent use of dangerous drugs by that person is 

sufficiently low to justify his or her return to work. In addition, the individual 

must agree to be subject to increased unannounced testing – (1) [f]or a minimum 

of six (6) tests in the first year after the individual returns to work as required in 

49 CFR [P]art 40; and (2) [f]or any additional period as determined by the MRO 

up to a total of [sixty] 60 months. 

46 CFR 16.201(f). 

While Exhibit A is a necessary first step, it does not meet the requirements of cure as 

expressed above. Therefore, Respondent’s evidence of cure, although a good start, is not 

sufficient to exempt his license and document from mandatory revocation prescribed in 46 

U.S.C. 7704 (c). 

While Revocation is required upon having found proved the “Use of Dangerous Drugs” 

charge, the recently decided National Transportation Safety Board (NTSB) case of Commandant 

v. Michael S. Moore, NTSB Order EM-201, (2005) requires the Administrative Law Judge to 

articulate aggravating circumstances to justify an upward departure from the 12 to 24 month 
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suspension recommended in 46 CFR Table 5.569 for drug test refusal cases. I find aggravating 

factors as follows: Mr. Guidry ordered respondent to take a drug test based on reasonable cause. 

Respondent admitted to Mr. Guidry that he had done an ounce of cocaine during the past week 

and was as high as he could be. Mr. Guidry also observed track marks on Respondent’s arm as 

well as Respondent’s erratic behavior. Based on those observations and Respondent’s 

admissions, Mr. Guidry also forbade Respondent to drive and arranged for a motel room for 

Respondent to spend the night. These factors are sufficient not only to find the “Use of 

Dangerous Drugs” charge proved but also to justify an upward departure to Revocation. 

ORDER

IT IS HEREBY ORDERED that Respondent’s U.S. Merchant Mariner’s License 

#1027343 and Document bearing his Social Security account number, now in the possession of 

the U.S. Coast Guard, are REVOKED. 

IT IS FURTHER ORDERED that the effective date of REVOCATION is February 10, 

2005, the date Respondent voluntarily surrendered his license and document. 

PLEASE TAKE NOTICE that service of this Order on the parties and/or parties’ 

representative(s) serves as notice of appeal rights set forth in 33 CFR 20.1001 – 20.1004. 

Attachment A. 

Done and dated October 21, 2005 

New York, New York 

____________________________________ 

WALTER J. BRUDZINSKI 

ADMINISTRATIVE LAW JUDGE 

U.S. COAST GUARD 
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ATTACHMENT A

NOTICE OF ADMINISTRATIVE APPEAL RIGHTS

33 CFR 20.1001 General. 

(a) Any party may appeal the ALJ's decision by filing a notice of appeal. The party 

shall file the notice with the U. S. Coast Guard Administrative Law Judge Docketing 

Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, 

MD 21201-4022. The party shall file the notice 30 days or less after issuance of the 

decision, and shall serve a copy of it on the other party and each interested person. 

(b) No party may appeal except on the following issues: 

(1) Whether each finding of fact is supported by substantial evidence. 

(2) Whether each conclusion of law accords with applicable law, precedent, and 

public policy. 

(3) Whether the ALJ abused his or her discretion. 

(4) The ALJ's denial of a motion for disqualification. 

(c) No interested person may appeal a summary decision except on the issue that no 

hearing was held or that in the issuance of the decision the ALJ did not consider 

evidence that that person would have presented. 

(d) The appeal must follow the procedural requirements of this subpart. 

33 CFR 20.1002 Records on appeal. 

(a) The record of the proceeding constitutes the record for decision on appeal. 

(b) If the respondent requests a copy of the transcript of the hearing as part of the record 

of proceeding, then, -- 

(1) If the hearing was recorded at Federal expense, the Coast Guard will provide 

the transcript on payment of the fees prescribed in 49 CFR 7.45; but, 

(2) If the hearing was recorded by a Federal contractor, the contractor will 

provide the transcript on the terms prescribed in 49 CFR 7.45. 

33 CFR 20.1003 Procedures for appeal. 

(a) Each party appealing the ALJ's decision or ruling shall file an appellate brief with the 

Commandant at the following address: U.S. Coast Guard Administrative Law Judge 

Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; 

Baltimore, MD 21201-4022, and shall serve a copy of the brief on every other party. 

(1) The appellate brief must set forth the appellant's specific objections to the 

decision or ruling. The brief must set forth, in detail, the -- 
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(i) Basis for the appeal; 

(ii) Reasons supporting the appeal; and 

(iii) Relief requested in the appeal. 

(2) When the appellant relies on material contained in the record, the appellate 

brief must specifically refer to the pertinent parts of the record. 

(3) The appellate brief must reach the Docketing Center 60 days or less after 

service of the ALJ's decision. Unless filed within this time, or within another 

time period authorized in writing by the Docketing Center, the brief will be 

untimely. 

(b) Any party may file a reply brief with the Docketing Center 35 days or less after 

service of the appellate brief. Each such party shall serve a copy on every other party. 

If the party filing the reply brief relies on evidence contained in the record for the 

appeal, that brief must specifically refer to the pertinent parts of the record. 

(c) No party may file more than one appellate brief or reply brief, unless -- 

(1) The party has petitioned the Commandant in writing; and 

(2) The Commandant has granted leave to file an added brief, in which event the 

Commandant will allow a reasonable time for the party to file that brief. 

(d) The Commandant may accept an amicus curiae brief from any person in an appeal of 

an ALJ's decision. 

33 CFR 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record on appeal to determine whether the ALJ 

committed error in the proceedings, and whether the Commandant should affirm, 

modify, or reverse the ALJ's decision or should remand the case for further 

proceedings. 

(b) The Commandant shall issue a decision on every appeal in writing and shall serve a 

copy of the decision on each party and interested person. 
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ATTACHMENT B

WITNESS AND EXHIBIT LISTS

WITNESS LIST

COMPLAINANT’S WITNESS

Mr. Jim Guidry 

RESPONDENT’S WITNESSES

Mr. Michael David Gratton, Respondent, pro se 

EXHIBIT LIST

COMPLAINANT’S EXHIBITS

1. E-mail letter from Jim Guidry to LT Amy Coglianese, USCG detailing the events 

surrounding Respondent’s admissions of recent drug use, Respondent’s refusal to take a 

chemical drug test, and Mr. Guidry’s observations of Respondent’s condition. 2 pages. 

RESPONDENT’S EXHIBITS

A. Letter dated October 14, 2005 from the Louisiana Department of Health and Hospitals, 

together with 2 Release Authorization forms. 3 pages. 

ADMINISTRATIVE LAW JUDGE’S EXHIBITS

 1. Coast Guard Good Faith Deposit receipt dated February 10, 2005. 1 page. 
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Certificate of Service 

 

I hereby certify that I have served the foregoing document upon the following parties to 

this proceeding and to the ALJ Docketing Center at the addresses indicated by the method 

specified below: 

Coast Guard Marine Safety Office 

Attn: LTJG Adam Bryant 

ENS Timothy Tilghman 

800 David Drive 

Morgan City, LA 70380-5342 

Phone: (985) 380-5342 

Telefax: (985) 380-5379 

(Via Telefax) 

Mr. Michael David Gratton 

193 Whittington Drive 

Lafayette, LA 70503 

(Via Certified Mail, Return Receipt) 

ALJ Docketing Center 

40 S. Gay Street, Room 412 

Baltimore, MD 21202 

Phone: (410) 962-7434 

Telefax: (410) 962-1746 

(Via Telefax) 

Done and dated October 21, 2005 

New York, NY 

 __________________________________ 

 Regina V. Thompson 

Paralegal Specialist, Assistant to the 

 Administrative Law Judge 

 Phone (212) 668-2970 

Telefax: (212) 825-1230