UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_________________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

JOSEPH ROBERT ANDRIE 

Respondent 

_________________________________ 

Docket Number 2009-0483 

Enforcement Activity No. 3430747 

DEFAULT ORDER

Issued: July 08, 2010

By Administrative Law Judge: 

Honorable George J. Jordan

Appearances: 

CWO Paul F. Lonardo 

Sector Houston/Galveston 

For the Coast Guard 

JOSEPH ROBERT ANDRIE, Pro se 

For the Respondent 
ORDER AND REASONS GRANTING THE AGENCY’S MOTION 

FOR DEFAULT ON AN AMENDED COMPLAINT AND 

ORDER TO SHOW CAUSE

This administrative proceeding concerns the suspension or revocation of Joseph Robert 

Andrie’s (Respondent) Merchant Mariner’s Credential 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 

revoke Respondent’s Coast Guard issued Credentials for Respondent’s alleged refusal to submit 

to a chemical test ordered by the master of a vessel on which Respondent was serving. 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 C.F.R. § 20.310. [Docket 2009-

0483, Docket Item 05] 

I. PROCEDURAL HISTORY

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

Respondent’s Merchant Mariner Document by filing a Complaint on November 19, 2009. 

[Docket Item 01] 

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

is the holder of a Merchant Mariners Document (MMD) and that Respondent acted under 

the authority of that MMD on December 13, 2008 by serving as Able Seaman aboard the 

vessel KAREN ANDRIE as required by his employer as a condition of employment. 

 The Complaint included the following factual allegations: 

 a. On December 13, 2008, a Coast Guard boarding team boarded the 

 Integrated Tug and Barge (ITB) KAREN ANDRIE (O.N. 297527). 

2 
 b. An ION scan swipe test was performed by the Coast Guard boarding 

 team members on various surfaces of the ITB KAREN ANDRIE 

 indicating the presence of Cocaine. 

 c. All crewmembers were ordered to be chemically tested for dangerous 

 drugs by the master of the ITB KAREN ANDRIE, Robert Dorchak. 

 d. The Respondent wrongfully refused to submit to a federal drug test, a 

 violation of 49 CFR 40.191. 

3. The Complaint and its accompanying Certificate of Service indicated an address for 

Respondent in New Braunfels, Texas. 

4. On December 9, 2009, 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 December 4, 2009 in New Braunfels, Texas. [Docket Item 04] 

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

of March 1, 2010. 

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

Center on March 1, 2010 [Docket Item 05] with a Certificate of Service indicating 

Respondent’s address in Waco, Texas. [Docket Item 06] 

7. In the Motion for Default, the Coast Guard stated that Respondent’s parole officer had 

provided the Coast Guard an address for Respondent in Waco, Texas. 

8. On March 22, 2010, the Coast Guard filed a return of service form indicating that the 

Motion for Default was received at a forwarded address in Crawford, Texas on March 15, 

2010. Someone other than Respondent signed the Return of Service form. [Docket Item 

07] 

9. On March 25, 2010, the Coast Guard filed an Amended Certificate of Service indicating 

service on Respondent at the Crawford, Texas address on March 15, 2010. [Docket Item 

08] 

3 
10. The Coast Guard ALJ Docketing Center received no further filings, and on April 14 

2010, this matter was assigned to me for review and disposition. [Docket Item 09] 

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 

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 December 4, 2009. 

Under 33 C.F.R. § 20.306, Respondent had until December 28, 2009 to file an Answer to the 

Complaint. No such Answer was received. The record reveals that the Coast Guard was advised 

about Respondent’s change of address to Waco, Texas by Respondent’s parole officer; there was 

4 
contact with Respondent; and there were unsuccessful discussions on settlement. Respondent 

still did not file an Answer with the Coast Guard ALJ Docketing Center. 

On March 1, 2010, the Coast Guard filed a Motion for Default and filed a certificate of 

service indicating the place of service as Respondent’s Waco, Texas address. The record shows 

the Motion for Default was delivered to a forwarding address in Crawford, Texas on March 15, 

2010. Further, the person who signed for the Motion was not Respondent. 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). 

The Commandant has considered service in default cases several times. In Appeal 

Decision 2647 (Brown) (2004), the Commandant stated: 

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. 

The forwarding of the Motion for Default did not create improper service. The Commandant has 

long held that a respondent has an affirmative duty to provide the Coast Guard with a proper 

address. Appeal Decision 2645 (MIRGEAUX ) (2004). The Confirmation and Tracking Data 

provided by the United States Post Office and attached to Docket Item Seven (7), the Return of 

Service for Motion for Default, indicates that the document was forwarded to an address where 

Respondent intended to receive mail. “When the receipt of something sent via mail is at issue, a 

rebuttable presumption of receipt arises upon a showing that the item was mailed.” See In re 

Cendant Corp. PRIDES Litg., 311 F.3d 298, 304 (3d Cir.2002)” Blomeyer v. Levinson, 2006 

WL 463503 (E.D.Pa. 2006). 

5 
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 tracking results, as well as 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. Both the Complaint and the Motion for Default were thus properly served on 

Respondent and his failure to reply to each cannot be excused for any service defect. 

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 

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.” 

6 
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 

contains the following allegation: “Respondent acted under the authority of MMD – [redacted], 

on 12/13/2008 by: serving as Able Seaman aboard the vessel KAREN ANDRIE 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 on December 13, 2008 a Coast Guard boarding team boarded 

the ITB KAREN ANDRIE. The Complaint further alleges that the Coast Guard boarding team 

performed an ION scan swipe test on various surfaces of the vessel, which indicated the 

presence of cocaine, and that “[a]ll crewmembers were ordered to be chemically tested for 

dangerous drugs by the master . . . .” Finally, the Complaint alleges that the “Respondent 

wrongfully refused to submit to a federal drug test, a violation of 49 CFR 40.191.” 

1. Refusal to Submit to a Drug Test Ordered by the Master 

The first issues to be considered are: (1) does a Master have the authority to order such a 

test and (2) is it misconduct to refuse such a test? 

Misconduct is defined in 46 C.F.R. § 5.27 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. 

7 
A refusal to follow a lawful order of a vessel’s master constitutes Misconduct. Appeal Decision 

1857 (POUTER) (1971) (disobedience to a lawful order is an offense in any kind of 

jurisprudence.) The orders of the Master of a vessel are given special recognition and protection 

by the laws of not only the United States but of the international community as well. See Appeal 

Decision 2616 (BYRNES) (2000). The Master has a great responsibility in ensuring the safety 

of his vessel and crew. This responsibility was confirmed in the case of The Styria, 186 U.S. 1, 

22 S.Ct. 731 (1901), where the Court said: 

The master of a ship is the person who is entrusted with the care and management 

of it, and the great trust reposed in him by the owners, and the great authority 

which the law has vested in him, require on his part and for his own sake, no less 

than for the interest of his employers, the utmost fidelity and attention. 

In Spentonbush/Red Star Companies v. N.L.R.B.,106 F.3d 484 (2nd Cir. 1997), the 

Second Circuit held that pursuant to long-standing tradition, a tug’s captain is the ship’s master 

and that: 

The tug captains thus occupied a position that was markedly different 

from that of a foreman or lead person in a shore-based enterprise. See 

June T, Inc. v. King, 290 F.2d 404, 406 n. 1 (5th Cir.1961). This 

difference was summarized by the Supreme Court in Southern Steamship 

Co. v. NLRB, 316 U.S. 31, 38, 62 S.Ct. 886, 890, 86 L.Ed. 1246 (1942), 

in the following, oft-quoted language: 

Ever since men have gone to sea, the relationship of master 

to seaman has been entirely different from that of employer 

to employee on land. The lives of passengers and crew, as 

well as the safety of ship and cargo, are entrusted to the 

master's care. Every one and every thing depend on him. 

He must command and the crew must obey. 

A multi-volume work entitled Limited Master, Mate & Operators License 

Study Course, Book 4 Revised Edition “G”, Editor Richard A. Block, 1994, 

contains the following, more-detailed description of a master's duties: 

He must maintain proper order and discipline on board at 

all times. He shall be held responsible for any disorderly 

conduct or violation of the law or of rules covered in the 

manual, which might have been prevented by proper 

administration and supervision on his part. He shall not 

8 
permit any alcoholic beverages, illegal drugs or other 

intoxicants on board his vessel at any time. 

Id. at SB-4. 

The Commandant has stated, “[a]s demonstrated by the courts, the master is regarded as the 

individual primarily charged with the care and safety of the vessel and crew. The presence of 

drugs aboard a vessel is a direct threat to the master’s ability to carry out this duty, a threat 

whose seriousness is illustrated by the severe sanctions provided ... for violation of the drug 

laws of the United States by a seaman.” Appeal Decision 2098 (CORDISH) (1977). See also

Appeal Decisions 2476 (BLAKE) (1988), affd sub nom Commandant v. Blake, NTSB Order No. 

EM-156 (1989); 2504 (GRACE) (1990) and 2525 (ADAMS) (1991). 

In Appeal Decision 2616 (BYRNES) (2000), the Commandant concluded, citing Pouter, 

Cordish and The Styria, supra, that giving an order to a mariner to sit for a chemical test is within 

the powers given to the Master by maritime law. The facts of Respondent’s case are consistent 

with the reasoning of these earlier cases. Here, the Master was notified of the presence of drugs 

aboard the vessel and ordered the crew to be tested. The Master’s instruction to be tested was a 

lawful order to take a drug test for the reasons given above. This authority of the Master to 

search for drugs or even test for drugs or alcohol pre-exists and is separate from the Federal 

mandate to employers to test under certain circumstances which began in 1989. See Cordish and 

Blake, supra. See also Appeal Decision 2518 (HENNARD) (1989) (drug test predated federal 

chemical test rules.) “Additionally, it must be stressed that a ship’s master cannot violate the 

Fourth Amendment to the U.S. Constitution by conducting a warrantless search, since he 

conducts that search in his capacity as a private citizen, not as a Federal or State official. Appeal 

Decision 2115 (CHRISTEN), affirmed sub nom. Commandant v. Christen, NTSB Order EM-71 

(1978).” Blake, supra. 

9 
Therefore, I find that the Master’s order to the crew to submit to a drug test was lawful 

and the Respondent’s failure to obey that order has been deemed admitted by his default. That 

failure constituted Misconduct. 

2. Refusal to Submit to Federal Drug Test, a Violation of 49 C.F.R. § 40.191 

The Complaint also alleges that the refused test was a Federal Drug Test and in violation 

of 49 C.F.R. § 40.191. Part 40 of Title 49, Code of Federal Regulations, contains the 

Department of Transportation’s Procedures for Transportation Workplace Drug and Alcohol 

Testing Programs. The section cited in the allegations 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. However, throughout this section are references that the test must 

be “consistent with applicable DOT agency regulations” and/or limiting the scope of a DOTrefusal to test only “for any drug test required by this part or DOT agency regulations.” In 

particular, paragraph (e) of Section 40.191 reads as follows (emphasis added): 

As an employee, when you refuse to take a non-DOT test or to sign a non-DOT 

form, you have not refused to take a DOT test. There are no consequences under 

DOT agency regulations for refusing to take a non-DOT 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 

following federally mandated chemical tests for drugs. 

1. Pre-employment Tests at 46 C.F.R. § 16.210 

2. Periodic Tests at 46 C.F.R. § 16.220 

3. Random Drug Testing at 46 C.F.R. § 16.230 

4. Serious Marine Incident Tests at 46 C.F.R. § 16.240 and 46 C.F.R. Subpart 4.06 

5. Reasonable Cause Tests at 46 C.F.R. § 16.250 and 33 C.F.R. § 95.035 

A review of the allegations shows that the only federal drug test that Respondent’s 

requested test would fall under is a Reasonable Cause or Reasonable Suspicion test. Only a few 

Coast Guard Guidance Documents and Commandant Decisions provide guidance on reasonable 

cause testing and at first glance they appear conflicting. In Appeal Decision 2625 

10 
(ROBERTSON) (2002), the Respondent argued that because there was no particularized 

reasonable suspicion that he was using drugs, his act of providing an adulterated urine sample 

when tested should not have be considered by the ALJ and that “a reasonable basis for believing 

one person aboard a vessel was using drugs does not automatically extend to the entire crew.” 

The Respondent further argued that because all crewmembers of the vessel were drug tested, if 

the Master’s reasonable suspicion analysis did not apply to all of them, then all the results must 

be ignored by the ALJ. The Commandant held that “the more rational approach is to ask 

whether the marine employer properly found reasonable suspicion to drug test the Respondent.” 

However, a number of facts distinguish Robertson from the case at hand. First, there was 

a casualty in Robertson and also the employer testified that he concluded that the Respondent 

was experiencing a diminution in performance (a factor noted as a justification for testing in the 

employee handbook) and determined that he had a duty to drug test the Respondent. Robertson

also involved an adulterated sample and was not a refusal to submit to a test. 

But here the issue is not use but possession. This case presents the question of whether 

evidence of the mere presence of drugs on a vessel creates a reasonable suspicion that a 

particular mariner is using drugs. It also raises the issue of whether such evidence justifies a 

federally mandated chemical test for all crewmembers. 

The District Court for the District of Columbia in Transportation Institute v. U.S. Coast 

Guard, 727 F. Supp. 648, 660 (D.D.C. 1989) held that regulations allowing testing a 

crewmember on the basis of reasonable suspicion that the crewmember has used a dangerous 

drug did not transgress the Fourth Amendment. The Court noted that such “testing on the basis 

of reasonable suspicion is limited to those times when an employer has ‘a reasonable and 

articulable belief . . . based on direct observation of specific, contemporaneous physical, 

behavioral or performance indicators of probable use.’ 53 Fed.Reg. 47,081 (to be codified as 46 

C.F.R. § 16.250(b))”. Id. at n.12. The Court further stated: 

11 
...Skinner [v. Railway Labor Executives Association, 489 U.S. 602 (1989)] makes 

clear that the government’s interest in safety outweighs the privacy interest of 

crewmembers who are reasonably suspected to have used a dangerous drug based 

on direct observation of specific, contemporaneous physical, behavioral or 

performance indicators of probable use. ... See also National Treasury Employees 

Union v. Lyng, 706 F.Supp. 934 (D.D.C. 1988) (holding that reasonable suspicion 

testing of employees was permissible, provided that such testing is based upon 

reasonable, articulable, and individualized suspicion that a specific employee may 

be under the influence of drugs while on duty), and Bangert v. Hodel, 705 F.Supp. 

643 (D.D.C.1989) (holding that reasonable suspicion testing was permissible, 

provided that such testing is based upon reasonable suspicion of on-duty drug use 

or on-duty drug-related job impairment). The Court further notes that the 

diminished privacy interests of employees by virtue of their employment in a 

highly regulated industry also comes into play in the context of reasonable 

suspicion testing. 

Id. at 660. In the preamble to the final rule for 46 CFR Part 16, the Coast Guard stated at 53 FR 

47064, 47065-66: 

The drug testing requirements of the final rule place constraints on an employer’s 

discretion in conducting drug testing. For example, the requirement for random 

drug testing calls for selection of an employee to be tested in a scientifically 

acceptable manner, such as use of a computer-based random number generator. 

Requirements for testing based on reasonable cause or post-accident testing also 

are severely circumscribed in order to limit an employer’s discretion in 

administering these tests to employees. (emphasis added). 

The Coast Guard has also provided recent guidance to employers on reasonable suspicion 

testing. The Marine Employers Drug Testing Guidebook September 2009 provides the 

following guidance at pp. 31-32: 

Making a Reasonable Cause Determination: “The marine employer’s decision 

to test must be based on a reasonable and articulable belief that the individual has 

used a dangerous drug based on direct observation of specific, contemporaneous 

physical, behavioral, or performance indicators of probable use. Where 

practicable, this belief should be based on the observation of the individual by two 

persons in supervisory positions.” {Reference: 46 CFR 16.250(b)} behavioral, or 

performance indicators of probable use. 

i) The practical application of this rule is the “judge test.” If you as the 

marine employer or supervisor would feel confident in your ability to tell 

a judge exactly what physical, behavioral, emotional, or job performance 

cues indicated to you that a mariner needed to be drug or alcohol tested 

for reasonable cause, you probably have reasonable cause probability to 

conduct the test. It is highly recommended that all observations, 

employee discussions, etc., be documented. 

12 
In a recent Appeal Decision, the Commandant reiterated this policy. In Appeal Decision 

2672 (MARSHALL) (2007), the Commandant held that the determination as to whether 

reasonable cause exists to support a request for the administration of chemical testing is a factual 

determination made by the ALJ based upon all the evidence available. See Appeal Decisions 

2625 (ROBERTSON) (2002) and 2624 (DOWNS) (2001). In Marshall, the ALJ rejected a 

chemical test ordered on the observations of one individual finding that it was “practicable” for 

the marine employer to base its determination of reasonable cause of intoxication on the part of a 

Respondent on the observation of two persons. The ALJ then concluded that the marine 

employer lacked, as a matter of law, the requisite “reasonable cause” to make this request. See

USCG v. Marshall, SR-2004-19 at 16. (USCG ALJ Dec. 2004). 

Based on a review of the record and the regulations, the employer must have a reasonable 

and articulable belief that the individual has used a dangerous drug in order to require a 

reasonable suspicion drug test under DOT rules. There must be some evidence raising a 

reasonable suspicion concerning the charged mariner. See Robertson, supra. Here, there is only 

evidence of the presence of drugs on the vessel. Such a fact alone does not create a sufficient 

basis to allow a federal drug test of each crewmember. 

However, federal drug tests are not the only tests permitted. The DOT rules do not 

prevent non-DOT drug tests. See 49 C.F.R. § 40.13 (outlining the relationship between DOT 

and non-DOT tests). The Master has authority under maritime law to order tests outside the 

DOT procedures. The Coast Guard guidance to Marine Employers notes as follows: 

Expanding the Reasonable Cause Definition: Many marine employers 

expand the definition of a reasonable cause drug test to include a number of 

situations. Examples include, “being reasonably suspected of possessing drugs 

or alcohol aboard a company vessel”, “being reasonably suspected of dealing 

drugs aboard a company vessel”, “being suspected of having been involved in 

an accident on company time” and many others. 

13 
Importantly, while the language of 49 C.F.R. 4.191(e) makes it clear that refusal to take a 

non-DOT test will not result in consequences under the DOT-testing regime (i.e., for drug tests 

required by DOT agency regulations), it does not absolve one from any and all consequences 

whatsoever for such a refusal. The scope of Misconduct under 46 C.F.R. § 5.27 is broader than 

sanctions for violations of DOT agency regulations. Here, the general maritime law requirement 

that crewmembers obey lawful orders of a master is the substance of the violation at hand. 

Additionally the courts have found “the right to test employees for alcohol or drug use upon a 

showing of reasonable cause, on threat of discharge, is critical to achieving the objective of the 

Coast Guard regulations ... Were employees permitted to refuse to submit to such chemical 

tests, it is difficult to imagine why any drug user would consent.” Exxon Shipping Co. v. Exxon 

Seamen’s Union, 73 F.3d 1287, 1294 (3d Cir. 1996) (reviewing arbitration decision and finding 

that even if regulations did not require dismissal of employee who refused drug test under a 

“reasonable cause” test, public policy would be violated by reinstating employee to employment 

after such refusal, but refusing to disturb arbitrator’s decision in this case to reinstate employee 

where there was insufficient cause to order the test). 

As I have stated above, the Commandant has held that the presence of drugs aboard a 

vessel is a direct threat to the Master’s ability to care for safety of vessel and crew and therefore 

the Master may direct drugs tests and conduct searches for drugs. Given this broad authority 

under general maritime law, the Master’s order to the crew to submit to a drug test was lawful 

even though it was not a federal drug test. See Byrnes, Pouter, Cordish and The Styria, supra. 

The consequences for Respondent’s failure to obey the vessel’s Master is the issue here, not 

whether the Master’s order regarding the drug test falls within the realm of those tests required 

by DOT-regulations. 

14 
3. Amendment of Pleadings to Conform to Proof 

 Finding that the refused test was not a federal drug test under 49 C.F.R. § 40.191 means 

that there was a minor defect in the factual allegations in this Complaint. However, defects in a 

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

Decision 2545 (JARDIN) (1992). Long-standing Coast Guard precedent establishes that an ALJ 

may amend the specifications of the Complaint to conform to the proof. See Appeal Decision 

2630 (BAARSVIK) (2002) (noting that the Commandant has previously held the ALJ has 

authority to make necessary amendments to conform specifications to the proof); 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”). 

No Appeal Decisions have considered amendment of allegations in default cases yet. 

There are only a few Appeal Decisions addressing this issue under the previous “in absentia” 

process.

1

 In Appeal Decision 2422 (GIBBONS) (1986), the Commandant found a specification 

defective but found that the defect did not require dismissal of the specification. In another 

decision, the Commandant stated that “[a] failure of a person to appear for the hearing after 

proper notice cannot prevent litigation of a matter as to which he was on notice. A failure to 

appear does, however, frustrate litigation of a matter as to which he had been given no notice.” 

Appeal Decision 1884 (HOPPE) (1972). However, here also the Commandant considered 

whether the “specification must be dismissed or whether there is something salvable of it.” Id. 

In both Gibbons and Hoppe, a specification alleging assault was reduced to wrongful use of 

threatening language. 

Accordingly, I will amend the Complaint’s allegations to conform to the proof by striking 

the term “federal” and “in violation of 49 CFR 40.191” from paragraph four. Such an 

 

1 In adopting its Rules of Practice, Procedure, and Evidence for Administrative Proceedings (1999 Procedural Rules) the Coast 

Guard sought to improve its adjudicative process by eliminating unnecessary procedures from S&R proceedings. One of the 

15 
amendment to the Complaint is appropriate, as the substance of both the original and amended 

allegations is that Respondent refused the Master’s order to submit to a drug test (a far less 

significant amendment than in Gibbons or Hoppe).

2

Since the adoption of the Rules of Practice, Procedure, and Evidence in 1999, a few cases 

have considered the issue of amendment of pleadings to conform to the proof. In Baarsvik, 

supra, the Commandant cited 33 C.F.R. § 20.305 and held that no such amendment “may 

broaden the issues without an opportunity for any other party or interested person both to reply to 

it and to prepare for the broadened issues.” A recent appeal decision by the Commandant 

reiterated that an ALJ has the authority to amend pleadings to conform to proof and found that 

even where the specific regulatory cite of the violation found proved was not alleged in the 

complaint, the Respondent had adequate notice for due process purposes where the substance of 

the alleged violation was indentified. See Appeal Decision 2687 (HANSEN) (2010). 

Merely striking the term “federal” and “in violation of 49 C.F.R. 40.191” 3 from 

paragraph four of the Complaint does not inappropriately broaden the issues. The refusal to 

follow the lawful order of the Master to take a drug test is the substance of the allegations here. 

Respondent therefore suffers no prejudice through such an amendment. Nevertheless, because 

this matter is not being considered at hearing (unlike Baarsvik and Hansen) but only on the 

pleadings, motions and the record, it is appropriate to provide the parties notice and opportunity 

to respond to the amendment following the Commandant’s holding in Baarsvik, supra (requiring 

an opportunity to reply after amendment). 

 

unnecessary procedures eliminated was the “in absentia” hearing and its replacement by the default process (33 C.F.R. § 20.310)

and default for failure to appear (33 C.F.R. § 20.705). 

2

 In Appeal Decision 2234 (REIMANN) (1981), the Commandant stated, “Appellant’s complaint that he has been denied due 

process of law because he was never served with the amended charges is not valid. The charge was amended at the first session 

of the hearing held in absentia. .... Accordingly, Appellant cannot now be heard to complain that he was denied due process of 

law by a “housekeeping” amendment which was made at a hearing at which he did not deign to appear.” 3

 Because of the amendment I will not reach the issue of whether one can violate 49 C.F.R. § 40.191. This section describes what 

constitutes a “refusal to test” under DOT rules. I need not reach the question whether it is proscriptive or merely descriptive 

because it states that it is not applicable to non-DOT tests 49 C.F.R § 40.191(e). See Appeal Decision 2551 (LEVENE) (1993) 

(one cannot violate a regulation that is not prescriptive in nature). 

16 
The APA states that the agency “shall give all interested parties opportunity for ... the 

submission and consideration of facts, arguments . . . when time, the nature of the proceeding, 

and the public interest permit . . . .” 5 U.S.C. § 554(c)(1). The Coast Guard Rules of Practice, 

Procedure, and Evidence for Administrative Proceedings state that the “ALJ shall have all 

powers necessary to the conduct of fair, fast, and impartial hearings” (33 C.F.R. § 20.202) 

including the power to regulate the course of the hearing (33 C.F.R. § 20.202 (f)). Therefore, 

even though I have found that this amendment does not inappropriately broaden the issues, I will 

provide the parties an opportunity to reply to the change in the specifications of the Complaint. 

In order to provide the parties this opportunity to reply, I order that the record remain open for 

thirty (30) days to allow either party to submit facts and arguments on this issue and/or for 

Respondent to provide good cause why the default order on the amended allegations should be 

set aside under 33 C.F.R. § 20.310(e). 

Allowing the amendment of a defective complaint with an opportunity to respond is 

consistent with the intentions of the Coast Guard Rules of Practice, Procedure, and Evidence for 

Administrative Proceedings to eliminate unnecessary procedures and to secure just, speedy, and 

inexpensive determinations. It is also consistent with FRCP Rule 15 regarding amendment of 

the pleadings. See 33 CFR 20.103(c). Based on the default, the allegation that Respondent 

refused to submit to a drug test is deemed admitted and the Charge of Misconduct, as amended 

above, is PROVED. 

IV. DISCUSSION CONCERNING 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 revocation. Respondent failed to respond to the Complaint so 

17 
the underlying facts are proven and there is no evidence of any remedial actions or mitigation by 

Respondent in the record. However, the recommended order exceeds the range of orders 

suggested in the Table entitled “Suggested Range of an Appropriate Order” in 46 C.F.R. § 5.569 

and some explanation is warranted to outline why revocation in this case is, or is not, 

appropriate. 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. 

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. 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 

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refusal to submit to a chemical test without any reference to Moore. 4

 Indeed, no Appeal 

Decision to date has cited, distinguished or discussed the NTSB position in Moore. 

Only a number of ALJ Decisions have considered Moore ’s application to a proposed 

revocation in refusal to test cases in which the Respondent has defaulted. While decisions of 

other Coast Guard ALJs are not binding on another Coast Guard ALJ, they may be considered as 

persuasive authority. However, these decisions are not consistent. For example, in one, the 

Respondent failed to answer an allegation of the refusal to take an alcohol test, and the ALJ 

decided that in the absence of aggravating or mitigating evidence a 24-month suspension was 

appropriate. USCG v Koch, SR-2008-12. In another the default was a failure to appear, and the 

ALJ held, citing Callahan and Downs, that given “Respondent’s failure to submit to testing, his 

failure to appear at the hearing and his apparent dishonesty in explaining that absence, outright 

revocation [was] deemed appropriate.” USCG v Johnson SR-2008-08. 

The closest description to what occurred in this matter in Table 5.569 is a “refusal to take 

chemical drug test” which is listed under Violation of Law and not Misconduct. However, 

refusal to test is commonly charged under Misconduct. See, e.g., Callahan, and Spence, supra. 

In Appeal Decision 2041 (SISK) (1975), the Commandant held that violations of marine safety 

law may be charged as misconduct or even as negligence. Therefore, I hold that the 

recommended sanction in Table 5.569 is as applicable to refusal cases charged under Misconduct 

as to those charged under Violation of Law. 

While Table 5.569 has been considered guidance for the judges, there are other sections 

of the rules that also provide guidance as to appropriate orders or even mandate sanctions in 

certain circumstances. For example, 46 C.F.R. § 5.59 lists the lists the offenses for which 

 

4

 I note that the ALJ in Spence found that revocation is mandated in any DOT Drug test refusal ignoring Table 

5.569. SR-2004-10 at 20. The Appeal Decisions only find it appropriate under the circumstances of these cases and 

the Moore decision holds the opposite. 

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revocation of licenses, certificates of documents is mandatory (these offenses include 

“misconduct for wrongful possession, use, sale, or association with dangerous drugs” while 

acting under the authority of a credential) and 46 C.F.R. § 5.61, which outlines the circumstances 

under which revocation of a license, certificate, or document may be sought. In particular, I have 

considered 46 C.F.R. § 5.61(b), which states that revocation is appropriate when the 

circumstances of an act or offense found proved “indicates that permitting such person to serve 

under the credential or endorsements would be clearly a threat to the safety of life or property, or 

detrimental to good discipline.” Without more in the record, there is simply not enough evidence 

to determine definitively that Respondent is such a clear threat or detrimental to good discipline. 

Nevertheless, a significant sanction is warranted for Respondent’s refusal to submit to the 

Master’s lawful order to sit for a drug test. 

A number of decisions state that the “selection of an appropriate order by the 

Administrative Law Judge should involve the consideration of the promotion of safety of life at 

sea and the welfare of individual seamen.” Appeal Decision 2573 (JONES) (1996) See also

Appeal Decisions 2017 (TROCHE) (1975), 2551 (LEVENE) (1993), 2570 (HARRIS) (1995). In 

Spence, supra, the Commandant held that the refusal to submit to a chemical test for dangerous 

drugs raises serious doubts of the individual’s ability to perform safely and competently in the 

future. See also Downs and Callahan, supra. Upon consideration of the above, I find that a 

mariner’s refusal to take a test for drugs when ordered to do so by the Master is a serious offense 

that at a minimum warrants at least a 12-24 month suspension and for which the revocation of 

that individual’s Coast Guard issued credential may be appropriate, depending on the particular 

circumstances. In this case, the Coast Guard’s pleadings have alleged, and Respondent’s default 

has deemed admitted, evidence of aggravating factors that could support exceeding the suggested 

range contained in Table 5.569. 

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In particular, it has been deemed admitted that the Respondent refused to follow a lawful 

order of the Master to submit to chemical testing after the discovery of drugs aboard a vessel. 

Before and after the Moore decision, the Commandant has found revocation appropriate for 

refusal to submit to testing three times: (1) in Callahan (post incident testing); (2) in Downs

(reasonable suspicion testing); and (3) in Spence (respondent was intoxicated and refused 

confirmatory alcohol test and a drug test). In these cases, refusals were all of federally mandated 

tests. The circumstances of the refusals also clearly endangered the safe operation of the vessel 

and were detrimental to good order and discipline. Here, there is no federal mandate involved. 

Because the record is confined to the pleadings, there is inadequate evidence in aggravation to 

clearly support an upward deviation from the suggested sanction provided in Table 5.569. 

Having chosen not to answer, likewise nothing has been provided by the Respondent in 

remediation or mitigation. 

“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)” Callahan, supra. 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 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 the record in this case, I cannot provide such an explanation of aggravating factors. 

Recognizing that the provisions in Table 5.569 about chemical test refusals were added in 

furtherance of the DOT drug testing rules5

 and because the master ordered the testing for reasons not 

 

5

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

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covered by federal drug tests rules, some downward deviation is appropriate. 

At the same time, the sanction must be severe enough to enforce the strong public policy to 

require a drug-free transportation system. As part of its drug enforcement prevention program, the 

Coast Guard has defined the process by which a mariner can establish “cure”. See Appeal Decision 

2535 (Sweeney) (1992) and its progeny. If a mariner had accepted a so-called “Sweeney” settlement 

agreement and successfully completed it, an average suspension of between fourteen and fifteen 

months would have been served. So as not to undermine that remedial program, any period of 

outright suspension in a refusal case should be longer. In the case at hand, there is no evidence that 

this Respondent has attempted to undertake any rehabilitation. 

Accordingly, I find that an outright suspension of eighteen (18) months plus an additional 

suspension of six (6) months on a probationary period of twelve (12) months is an appropriate 

sanction adequate to deter the Respondent’s repetition of this violation and not thwart public 

policy to maintain a drug-free maritime transportation system. 

V. ORDER

WHEREFORE: 

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

GRANTED; and IT IS HEREBY FURTHER ORDERED that the Allegations in the 

Complaint are modified as given above and are found PROVED; and 

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

SUSPENDED OUTRIGHT for EIGHTEEN (18) MONTHS from the date the credential is 

surrendered to the Coast Guard. The Respondent’s credential; is further SUSPENDED ON 

PROBATION for an additional SIX (6) MONTHS for a TWELVE (12) MONTH 

PERIOD OF PROBATION beginning at the end of the period of outright suspension; and 

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3. IT IS HEREBY FURTHER ORDERED that the parties have thirty (30) days from the 

service of this Order to submit any facts or argument requesting reconsideration of the 

amendment to the Complaint and Respondent has (30) thirty days from the service of this 

Order to provide good cause why the default should be set aside and this matter heard on the 

merits. 

4. IT IS HEREBY FURTHER ORDERED that the suspension of Respondent’s Mariner’s 

credential is stayed for thirty (30) days from service of this Order. If a party submits a timely 

response to this Order, the stay will continue until such time as a final order is issued and the 

record is closed in this matter. If no party submits a timely response to this Order, the stay 

will expire and the record will be closed. 

If the stay expires, 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. 

If this order of default enters into full force and effect, 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. 

The parties’ right to appeal, as set forth in 33 C.F.R. Subpart J, Section 20.1001 

(Attachment A), will be triggered upon the expiration of the stay upon the Order of Suspension 

or such final order as will be entered in this matter based upon the timely submissions of the 

parties as outlined herein.

__________________________________________________ 

George J. Jordan 

US Coast Guard Administrative Law Judge

Date: July 08, 2010

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