UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

MERCHANT MARINER DOCUMENT 

Issued to: Dieter P. Dubroc 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

N0.2 615 

This appeal is taken in accordance with 46 USC§ 7701 et seq., 46 CFR Part 5, 

and 33 CPR Part 20. 

By a Revocation Order1 (hereinafter "Default Order") dated September 14, 2004, 

an Administrative Law Judge (hereinafter "ALJ") of the United States Coast Guard at 

Norfolk, Virginia, revoked the Merchant Mariner Document (hereinafter "MMD") of 

Mr. Dieter P. Dubroc (hereinafter "Respondent'') upon a finding of default in a 

proceeding that alleged, as the basis for revocation, use of or addiction to the use of 

dangerous drugs. The Complaint alleged that on June 11, 2003, Respondent submitted to 

a random drug test and provided a urine sample that tested positive for the presence of 

cocaine metabolite. 

1 A review of the record shows that the AU called his final order a "Revocation Order." A review of the 

ALJ's Order shows that it would, irrespective of the sanction imposed, be better tenned a "Default Order." 

Therefore, this decision refers to the ALJ's Order as a "Default Order." 
DUBROC NO. 2 6 6 5 

PROCEDURAL HISTORY 

The instant case is the result of a Default Order issued by the ALJ. Therefore, it 

will be helpful to discuss the procedural progression of the case which is as follows: 

• July 17, 2003-the Coast Guard filed a Complaint against Respondent's 

MMD alleging, due to a positive test result, that Respondent was a user of, 

or was addicted to the use of, dangerous drugs [Complaint at 2) 

• July 22, 2003- Complaint received at Respondent's address of record 

• August 11, 2003- Respondent's Answer due (no Answer was received) 

• August 5, 2004-the Coast Guard filed a Motion for Default Order 

[Default Order at 1; Motion for Default Order at 1-2] 

• September 14, 2004-Default Order issued by ALJ [Default Order at 1-2) 

• October 12, 2004-Respondent files a timely "Notice of Appeal," via a 

letter postmarked October 8, 2004, with the ALJ Docketing Center 

[Respondent's Notice of Appeal at 1-2] 

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. 

Although Respondent failed to file an Appellate Brief in this case, due to the extensive 

nature of Respondent's Notice of Appeal, it will be treated as both the required Notice of 

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

FACTS 

At all times relevant herein, Respondent was the holder of a Coast Guard issued 

merchant mariner credential. [RO at 2; 46 C.F.R § 5.57(b)] 

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DUBROC NO. 2 66 5 

On June 11, 2003, Respondent submitted to a random drug test. [RO at 2; 

Complaint at 2] Respondent provided a urine sample to Mr. Juan Canales of Global 

Safety and Security. [Default Order at 2; Complaint at 2] At that time, Respondent 

signed a Drug Testing Custody and Control Form which certified, among other things, 

that Respondent provided a urine sample for testing. [Default Order at 2; Complaint at 2] 

Subsequent testing of Respondent's urine specimen revealed that it was positive for the 

presence of cocaine metabolite. [Default Order at 2; Complaint at 2] 

BASES OF APPEAL 

This appeal has been taken from the order of the ALJ finding Respondent to be in 

default in a proceeding that alleged use of or addiction to the use of dangerous drugs. On 

appeal, Respondent raises seven assignments of error and two bases of appeal not 

specifically annotated as such. Because many of Respondent's arguments are based upon 

similar legal theories and require similar legal analysis, I have combined several of 

Respondent's bases of appeal. Therefore, Respondent's consolidated bases of appeal are 

as follows: 

I. The ALi's default order should be set aside because Respondent was not 

provided with the opportunity to appear at a hearing and present his 

defense, call witnesses, cross examine witnesses, present evidence of 

rehabilitation and testify on his own behalf 

II. Respondent was denied due process because he was not able to afford an 

attorney and the ALI failed to appoint an attorney on Respondent's behalf. 

OPINION 

I. 

The All's default order should be set aside because Respondent was not provided with 

the opportunity to appear at a hearing and present his defense, call witnesses, cross 

examine witnesses, present evidence of rehabilitation and testify on his own behalf 

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DUBROC N0.2 66 5 

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. 33 C.F .R. § 20.310. The record shows that both the 

Complaint and the Coast Guard's Motion for Default Order-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. § 20.31 O(d); See also Appeal Decisions 2645 

(MIRGEAUX) and 2647 (BROWN). Although an ALJ may, "for good cause shown," set 

aside a Default Order, the record shows that on appeal, Respondent offers no explanation 

for his failure to respond to either the Coast Guard's Complaint or its Motion for Default 

Order. Pursuant to 33 C.F .R. § 20.310( 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." See also Appeal Decision 2645 (BROWN). 

By being in Default, Respondent waived his right to a hearing in this matter and is 

deemed to have admitted to all of the facts alleged in the complaint. 33 C.F.R. 

§ 20.310( c). Contrary to Respondent's assertions, therefore, he was neither denied a 

hearing by the ALJ, nor prevented from calling witnesses, cross examining witnesses, 

presenting documents or testifying on his own behalf. Instead, by virtue of his own 

failure to avail himself to the proceedings, Respondent waived the right to a hearing. 

Accordingly, Respondent's first assignment of error is without merit. 

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DUBROC N0.2 6 6 5 

II. 

Respondent was denied due process because he was not able to afford an attorney and 

the AL! failed to appoint an attorney on Respondent's behalf. 

Appellant next contends that he was denied due process because he could not 

afford an attorney and one was not provided to him. [Notice of Appeal at 2] 

Respondent's assertion, in this regard, is not persuasive. 

Prior Commandant Decisions on Appeal show that iit is not the responsibility of 

the Coast Guard to either ensure or mandate that Respondent have counsel. See, e.g., 

Appeal Decisions 2561 (CARTER), 2327 (BUTTS), 2242 (JACKSON & GAYLES), and 

1826 (BOZEMAN). Moreover, Coast Guard suspension and revocation proceedings are 

administrative proceedings conducted pursuant to the Administrative Procedure Act 

(hereinafter "APA"). See 46 U.S.C. § 7702(a); 46 C.F.R. § 5.501; 5 U.S.C §§ 551-559. 

While section 555(b) of the AP A states that a party has a right to be represented by an 

attorney of his or her choosing, the AP A does not confer a statutory right to an attorney at 

government expense. See 5 U.S.C. § 555(b); Father & Son Lumber & Bldg. Supplies, 

Inc. v. Nat'/ Labor Relations Board, 931F.2d1093, 1096-97 (6111 Cir. 1991); see also 

Backer v. Comm 'r, 275 F.2d 141, 143-44 (5th Cir. 1960); Collins v. Commodity Futures 

Trading Comm 'n, 737 F. Supp. 1467, 1483 (N.D. Ill 1990); see also Patel v. United 

States, 803 F.2d 804, 806 (5th Cir. 1986); Grover v. United States, 200 Ct. Cl. 337, 346-

48 (1973). Therefore, although the Coast Guard is required to notify a Respondent that 

he or she may have counsel or other representation during these proceedings, neither the 

applicable procedural rules nor the AP A require that the Coast Guard or the ALJ ensure 

that Respondent is appointed counsel prior to the initiation of suspension and revocation 

5 
DUBROC N0.2 6 6 5 

action. Appeal Decision 2561(CARTER);46 C.F.R. 5.107(b)(2). Therefore, because 

the Coast Guard fulfilled its duty to notify Respondent of his right to representation, 

Respondent's concerns that he could not afford an attorney and that an attorney was not 

provided to him are ill-suited for this appeal. 33 C.F.R. 20.301; 46 C.F.R. 5.107(b)(2). 

CONCLUSION 

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

a Default Order was not arbitrary, capricious, or clearly erroneous. Because competent, 

substantial, reliable, and probative evidence existed to support the ALJ's decision to grant 

a Default Order, I find Respondent's bases of appeal to be without merit. 

ORDER 

The order of the ALJ, dated at Norfolk, Virginia, on September 14, 2004, is 

AFFIRMED. 

Signed at Washington, D.C. this fJ'f"1 of flveJ~t '2007. 

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