DECISION AND ORDER Issued: April 20, 2022
By Administrative Law Judge: Honorable Michael J. Devine
JENNIFER A. MEHAFFEY, ESQ.
LINEKA N. QUIJANO, ESQ.
LCDR BRETT L. SPRENGER
For the Coast Guard
WILLIAM HEWIG, III, ESQ. KP Law, P.C.
V. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW
1.Respondent and the subject matter of this hearing are properly within the jurisdiction of the Coast Guard and the ALJ in accordance with 46 U.S.C. §§ 7703-7704, 46 C.F.R. Part 5, and 33 C.F.R. Part 20.
2.From on or about July 30, 2016, until January 16, 2020,Respondent was embarked on oceangoing deep draft vessels in operation outside of the United States for at least 566 days.
3.The Coast Guard bears the burden of proof in regard to all charges. Considering all of the evidence presented by both parties,I do not find sufficient proof by a preponderance of reliable and credible evidence of the allegations of misconduct in Charges1 and 2. Therefore,Charges 1 and2 (Misconduct) are found NOT PROVEN. Paragraphs 6 and 7 of Charge 5 allege the same conduct contained in Charges 1 and 2 and is also NOT PROVEN.
4.Respondent engaged in nonconsensual physical contact that constitutes assault and battery in regard to his actions and treatment of Deck Cadet 1.Therefore, allegations 1,2,3,4,and 5of Charge 3 (Misconduct) are found PROVEN by a preponderance of reliable and credible evidence.
5.Respondent engaged in nonconsensual physical contact that constitutes assault and battery in regard to his actions and treatment of Deck Cadet 1. Therefore, allegations 1,2,3,4, and 5of Charge 4 (Misconduct)are found PROVEN by a preponderance of the reliable and credible evidence.
6.Respondent engaged in teasing or hazing and harassing conduct including nonconsensual physical contact that constitutes assault and battery in regard to his actions and treatment of Deck Cadet 1. Therefore, allegations 1,2,3,4,5, 8,9,13,and 16 of Charge 5 (Misconduct)are found PROVEN by a preponderance of reliable and credible evidence.The allegations in paragraphs 10, 11, 12and 15ofCharge 5 do not constitute assault or assault and batteryof a government official and therefore are time barred under 46 C.F.R. § 5.55(a)(3). For the reasons stated in Section IV.B.2. a. and b.,allegation 17 of Charge 5 is NOT PROVEN.
7.The alleged aggravation in paragraph 10 of Charge 6 regarding alleged facts from a previous voyage cannot be used to create a basis for Charge 6 to be a violation listed in 46 C.F.R. § 5.61(a). Additionally, there is no physical contact alleged in Charge 6 and the entire charge is time barred in accordance with 46 C.F.R. § 5.55(a)(3). Therefore, Charge 6(Misconduct)is DISMISSED.
8.Respondent’s nonconsensual physical contact with Deck Cadet 1 found proven in Charges 3, 4,and 5 is an assault and battery without injury and constitutes “misconduct.” Appeal Decision 1218 (NOMIKOS)(1961); Appeal Decision 2171 (DEIBAN)(1979);Appeal Decision 2697 (JORY)(2010).
9.Respondent’s nonconsensual physical contact with Deck Cadet 1 found proven in Charges 3, 4,and 5constitutes interference with a government official in the performance of his duties. E.g.Appeal Decision 1418 (POPE)(1963); Appeal Decision 2452 (MORGANDE)(1987).
It is hereby ordered, Merchant Mariner Credential No. 000506406 and all other valid licenses, documents and endorsements issued by the Coast Guard to Respondent are SUSPENDED FOR 12 MONTHS, WITH FOUR MONTHS SUSPENDED OUTRIGHT AND 8 MONTHS ON PROBATION…Respondent must immediately surrender is Merchant Mariner Credential any any other Coast Guard-issued credentials to the U.S. Coast Guard….
Michael J. Devine
Administrative Law Judge
United States Coast Guard
April 20, 2022