UNITED ST ATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED ST ATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

VS. 

MERCHANT MARINER DOCUMENT 

Issued to: MICHAEL W. JORDAN 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

NO. 2656 

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

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

By an "Order Granting Coast Guard's Motion for Default and Order of 

Revocation" (hereinafter "Default Order") dated March 2, 2004, an Administrative Law 

Judge (hereinafter "ALJ") of the United States Coast Guard at Seattle, Washington, 

revoked Michael W. Jordan's (hereinafter "Respondent") Merchant Mariner Document 

upon finding proved a charge of misconduct. 

The specification found proved alleged that Respondent committed misconduct 

by refusing to take a pre-employment drug test properly requested by his employer. 

PROCEDURAL HISTORY 

On August 25, 2003, Coast Guard Marine Safety Office Houston-Galveston, 

Texas, filed a Complaint, alleging misconduct, against Respondent. The Complaint was 

properly served on Respondent on August 28, 2003. Although page three of the 
JORDAN NO. 2656 

Complaint expressly informed Respondent that he was required to file an Answer to the 

Complaint within 20 days of service, Respondent failed to do so within that period. As a 

result, on January 27, 2004, the Coast Guard filed a "Request for Certification of NonAnswer" (hereinafter "Request") with the ALJ Docketing Center. Although the Request 

acknowledged that the Respondent had contacted the Coast Guard at some time after the 

Complaint was served to deny the allegation, the Request clearly stated that, as of the 

filing date, Respondent had not filed an Answer to the Complaint. On the same date, the 

Coast Guard ALJ Docketing Center filed a "Certification of Answer." The "Certification 

of Answer" confirmed that Respondent had not filed an Answer to the Complaint as of 

January 27, 2004. Following receipt of the "Certification of Answer", on January 29, 

2004, the Coast Guard filed a "Motion for Default Order," (hereinafter "Motion") 

pursuant to 33 C.F.R. § 20.310. The Coast Guard's Motion requested that the ALJ grant 

a Default Order in the case because Respondent was properly served with the Complaint 

and failed to act appropriately thereafter. 

The Motion was served on the Respondent on February 4, 2004. Thereafter, on 

February 18, 2004, the Coast Guard filed a "Return of Service for Default Motion" with 

the ALJ Docketing Center, which showed that the Motion was properly served on 

Respondent. The case file shows that Respondent's only response to the Motion was to 

acknowledge receipt, via telephone call, with the Coast Guard Marine Safety Office 

responsible for initiating the case, and to state that he planned no further action or 

comment. 

On March 2, 2004, the ALJ issued an Order that granted the Coast Guard's 

Motion. The Order was premised on the fact that Respondent filed neither an Answer to 

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JORDAN NO. 2656 

the Coast Guard's Complaint, as is required by 33 C.F.R. § 20.308(a), nor a response to 

the Coast Guard's Motion, as is required by 33 C.F.R. § 20.3 lO(b). Following receipt of 

the ALJ's Order, on March 31, 2004, the Respondent sent a letter to Marine Safety Office 

Houston-Galveston, Texas, which stated, among other things, that he wished to "appeal 

the revocation" of his Merchant Mariner Document. Because Respondent appears prose, 

that letter, though failing to rise to the level of formality typically expected in these 

proceedings, has been treated as both the Notice of Appeal and Appeal Brief required by 

the procedural rules applicable to these proceedings. See 33 C.F.R. Part 20, Subpart J, 

Appeals Procedures. 

APPEARANCE: Respondent appeared prose. The Coast Guard Investigating 

Officer was MSTCS John I. Brown, stationed at Coast Guard Marine Safety Office, 

Houston-Galveston, Texas. 

FACTS 

On May 6, 2003, Respondent's Merchant Mariner Docwnent expired. 

[Respondent's Appellate Brief at 1] Respondent properly applied to renew his mariner 

document with the Coast Guard Regional Exam Center, thereafter, and the document was 

renewed and reissued to Respondent on August 13, 2003. [Respondent's Appellate Brief 

at 1] In the interim, on May 13, 2003, Respondent applied for a Tankerman position at 

Buffalo Marine. [Respondent's Appellate Brief at 1; Complaint at 2] As part of its 

customary application process, Buffalo Marine required Respondent to submit to a preemployment drug test. [Complaint at 2; Respondent's Appellate Brief at 1] Respondent 

agreed to submit to the required pre-employment drug test. [Complaint at 2] Sometime 

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JORDAN NO. 2656 

immediately thereafter, Respondent was escorted by his potential employer to Concentra 

Medical Center in Houston, Texas, where he was to provide a urine sample for drug 

testing. [Complaint at 2] Respondent returned to Buffalo Marine and indicated that he 

had provided a urine sample for testing. [Complaint at 2] Upon concluding that 

Respondent properly submitted to pre-employment drug testing, Buffalo Marine hired 

Respondent for the Tankerman position on May 13, 2003. [Complaint at 2; Respondent's 

Appellate Brief at 1] On May 16, 2003, Concentra Medical Center informed Buffalo 

Marine that Respondent did not submit a urine sample for testing, as was initially 

believed. [Complaint at 2] As a result, Buffalo Marine terminated Respondent's 

employment on that date, after he had been employed by the Company for approximately 

three days. [Complaint at 2] After Respondent committed the alleged acts of 

misconduct, but before suspension and revocation action was initiated by the Coast 

Guard, Respondent's Merchant Mariner Document was renewed on August 13, 2003. 

[Respondent's Appellate Brief at l] The revocation of Respondent's renewed Merchant 

Mariner Document is the subject of the instant proceeding. [D&O at 3] 

BASIS OF APPEAL 

This appeal is taken from the ALJ' s Order which found proved a charge of 

misconduct and required the revocation of Respondent's merchant mariner credential. As 

was stated above, Respondent's letter of appeal, received by the Coast Guard ALJ 

Docketing Center on April 29, 2004, has been treated as both his Notice of Appeal and 

his Appellate Brief for the purposes of these proceedings. After a thorough review of 

Respondent's Letter of Appeal, I have summarized his assignment of error as follows: 

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JORDAN 

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NO. 2656 

The ALJ lacked jurisdiction to revoke Respondent's merchant mariner 

credential in this case because, at the time that the alleged misconduct 

occurred, Respondent's merchant mariner credential was expired. 

OPINION 

Coast Guard regulations allow, as occurred in this case, an ALJ to issue a Default 

Order when a Respondent fails to either file an Answer in a case or to appear at a 

scheduled hearing or conference. See 33 C.F.R. § 20.310. The record shows that both 

the Complaint and the Coast Guard's Motion-which Respondent was procedurally 

required to Answer-were properly served on Respondent. Respondent failed, in all 

respects, to properly respond to those documents. In such circumstances, the Coast 

Guard's regulations require the ALJ, upon finding Respondent in default, to issue a 

decision against Respondent. 33 C.F.R. § 20.3 IO(d). Although an ALJ may, "for good 

cause shown," set aside a Default Order, the record shows that Respondent never 

contested the validity of the ALJ' s Default Order; instead, he elected to Appeal the ALJ' s 

Default Order on jurisdictional grounds. Pursuant to 33 C.F.R. § 20.3 lO(c), "[d]efault by 

respondent constitutes ... an admission of all facts alleged in the complaint and a waiver of 

his or her right to a hearing on those facts." 

Since Respondent does not deny proper service of the Complaint, the Coast 

Guard's Motion, or the ALJ's Default Order, and because Respondent does not 

contend-but for the jurisdictional consideration-that the ALJ erred in issuing a Default 

Order in the case, I do not find that the ALJ erred in finding the misconduct charge 

proved. Therefore, this decision will focus solely on Respondent's assertion that the 

Coast Guard lacked jurisdiction to initiate suspension and revocation action against his 

mariner credential because it was expired at the time the misconduct occurred. 

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JORDAN NO. 2656 

Past Commandant Decisions on Appeal state that jurisdiction is critical to the 

validity of a proceeding and make clear that when jurisdiction, or proof thereof, is 

lacking, dismissal is required. See e.g., Appeal Decisions 2104 (BENSON), 2094 

(MILLER), 2090 (LONGINO), 2069 (STEELE), and 2025 (ARMSTRONG). 

Accordingly, ifl find Respondent's assertion with respect to jurisdiction to be persuasive, 

irrespective of his admission of the charged offense, I must grant Respondent's appeal 

and dismiss the case. 

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

the misconduct must be proven to have occurred while the mariner was "acting under the 

authority" of his merchant mariner credential. A definition of the term "acting under the 

authority" is found at 46 C.F.R. § 5.57. The regulatory definition includes situations 

when the holding of a license or document is "[r]equired by an employer as a condition 

for employment." 

The record shows that Respondent applied for a Tankerman position that required 

that he hold a Merchant Mariner Document with a "Tankerman PIC" Endorsement. 

[Complaint at 2] As a result of the Default Order, Respondent is deemed to have 

admitted all factual allegations alleged in the Complaint. Accordingly, there can be no 

question that Respondent was "acting under the authority" of his document when he 

failed to submit to a pre-employment drug test that was required as a condition of his 

employment. 

Even though I find sufficient evidence in the record to support a conclusion that 

Respondent "acted under the authority" of his document when he failed to submit to a 

requested drug testing, the facts of this case require that I delve deeper into the issue. In 

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JORDAN NO. 2656 

this case, Respondent committed misconduct while his document was expired. As a 

result, I must now determine the jurisdictional implications of "acting under the 

authority" of an expired credential. 

On this issue, the Coast Guard's regulations are silent. As a result, I will look to 

prior Commandant Decisions for guidance. I do so because, pursuant to 46 C.F.R. 

§ 5.65, "[t]he decisions of the Commandant in cases of appeal. .. are officially noticed and 

the principals and policies enunciated therein are binding upon all Administrative Law 

Judges." 

A review of prior Commandant Decisions on Appeal shows that although no case 

directly addressed the jurisdictional issue presented here, at least two cases affirmed ALJ 

decisions where jurisdiction was established when a mariner was "acting under the 

authority" of an expired credential. See Appeal Decisions 2475 (BOURDO) 

(Commandant affirmed ALJ decision to suspend a mariner's (renewed) license for acts of 

misconduct that occurred while the license was expired) and 1381 (CLINTON) 

(Commandant affirmed ALJ decision to revoke a mariner's document for actions that 

occurred after the mariner's license was expired). Of the two decisions, Bourdo is of 

paramount importance here because it is based on factual allegations very similar to those 

developed in Respondent's case. Bourdo was charged with misconduct for wrongfully 

serving as the operator of a small passenger vessel while his license-a license required 

by regulation for such operation~-was expired. Although Respondent's license was 

expired when the misconduct occurred, just as in Respondent's case, that license was 

renewed thereafter, but before suspension and revocation action was initiated. In the 

Bourdo case, the issue of jurisdiction was not expressly raised on appeal-the 

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JORDAN NO. 2656 

assignments of error focused on alleged inconsistencies in the ALJ' s \\lntten order and 

the severity of the sanction. Nonetheless, in affirming the ALJ's decision on other 

grounds, the Commandant upheld the ALJ' s determination that the mariner acted under 

the authority of an expired credential and that suspension or revocation of the mariner's 

subsequently issued credential was an appropriate sanction for such action. 

Accordingly, I find sufficient precedent to support a conclusion that a mariner 

may commit misconduct while acting under the authority of an expired mariner credential 

and that it is appropriate to suspend or revoke a subsequently issued credential when the 

alleged misconduct is proved. Because the record shows that the ALJ did not err in 

finding that Respondent acted under the authority of his mariner document when he 

failed to submit to the drug test requested by Buffalo Marine and because past 

Commandant Decisions show that a mariner may act under the authority of an expired 

mariner credential, I do not find Respondent's assignment of error to be persuasive. 

Even though prior Commandant Decisions support the notion that a mariner may 

be found to have acted under the authority of an expired mariner credential, it is worth 

noting that public policy considerations support this result, as well. The purpose of 

suspension and revocation proceedings is to promote safety at sea. 46 U.S.C. § 7701. 

This Congressionally mandated purpose would be wholly thwarted ifthe Coast Guard 

was barred from initiating suspension and revocation action against mariners who 

committed improper, illegal, or forbidden acts while awaiting renewal of their Coast 

Guard issued mariner credentials. In some ways, a mariner that commits misconduct 

while knowingly acting under the authority of an expired mariner credential has 

committed a more grievous action than a mariner who commits misconduct while acting 

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JORDAN NO. 2656 

under the authority of a current mariner credential. This is because the mariner who is 

acting under the authority of the expired credential falsely presents himself as having 

essential qualifications and certifications. 

In this case, Respondent committed an act of misconduct while his Merchant 

Mariner Document was expired. Although Respondent applied for renewal of his 

Merchant Mariner Document before the misconduct occurred, he now seeks what 

amounts to a "free pass" for the misconduct-not because he denies committing the 

misconduct, but rather because his Merchant Mariner Document had not yet been 

renewed at the time that the misconduct occurred. The result that Respondent seeks is 

contrary to the public policy considerations discussed above. 

CONCLUSION 

The actions of the ALJ had a legally sufficient basis and his decision was not 

arbitrary, capricious, or clearly erroneous. Competent, reliable, probative, and substantial 

evidence existed to support the :findings and Default Order of the ALJ. Therefore, 

Respondent's basis of appeal is without merit. 

ORDER 

The 

Signed at Washington, D.C., ilii,/fk_ day ~2006. 

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