U.S. Coast Guard vs. Tommie Bernell Davis
This U.S. Coast Guard Suspension & Revocation Decision was never released to the public by the U.S. Coast Guard ALJ as required by federal law. This opinion has never been published and has never been posted to the USCG ALJ’s website with other publicly released opinions. MLAA obtained this Decision and Order via the Freedom of Information Act and published it on July 20, 2022. The Decision of the ALJ judge is dated January 23, 2018. This document was created using OCR from a paper pdf, and there are numerous formatting problems. A complete pdf file of U.S. Coast Guard vs. Tommie Bernell Davis can be found here.
UNITED STATES OF AMERICA
U.S. DEPARTMENT OF HOMELAND SECURITY
UNITED STATES COAST GUARD
_____________________________
UNITED STATES COAST GUARD
Complainant
VS.
TOMMIE BERNELL DAVIS
Respondent
______________________
Docket Number 2016-0365
Enforcement Activity No. 5727035
DECISION AND ORDER
Issued January 23, 2018
By Administrative Law Judge: Honorable George J. Jordan
Appearances:
Andrew Norris, Esq.
S&R National Center of Expertise
LT Kevin C. Kinsella
Sector Puget Sound
For the Coast Guard
D. Michael Reny, Esq.
For the Respondent
Table of Contents
I.SUMMARY OF THE PROCEEDINGS
II. FINDINGS OF FACT
III. DISCUSSION AND CONCLUSIONS OF LAW
Principles of Law
Jurisdiction
Analysis: Allegation 1 (Misconduct: Violation of Company Policy)
Credibility Issues
Assault, Intimidation, and Harassment
Analysis: Allegation 2 (Misconduct: Violation of 18 U.S.C. § 2241(a)(1))
IV. FACTORS CONSIDERED IN DETERMINING AN APPROPRIATE ORDER.
Coast Guard Arguments on Sanction
Respondent's Arguments on Sanction
Conclusions as to Sanction
APPENDIX A: APPEALS
APPENDIX B: LIST OF WITNESSES AND EXHIBIT
SUMMARY OF THE PROCEEDINGS
The United States Coast Guard has brought this administrative action under 46 U.S.C.§7701 et seg. and its underlying regulations codified at 46 C.F.R. Part 5, seeking to revoke
Respondent Tommy Bernell Davis's Merchant Mariner's Credential (MC or Credential). On November 18, 2016, the Coast Guard filed a Complaint against Respondent containing one allegation of misconduct and one allegation of a violation of law or regulation, both stemming from a June 10, 2016 incident in Sasebo, Japan. Respondent filed a timely Answer in which he denied certain jurisdictional and factual allegations and requested a hearing on the proposed order.
Respondent subsequently filed a motion to strike Allegation Two of the Complaint, arguing that the alleged violation of law could not constitute a violation of 46 U.S.C. § 7703 (1)(A) because it is not contained in 46 U.S.C. subtitle II and also that the allegations were duplicative. The Coast Guard opposed the motion. I issued an order on June 8. 2017 striking the term "Violation of Law" and amending the complaint to a second allegation of misconduct citing 18 U.S.C. § 2241(a)(1). I also found that, while the conduct giving rise to both allegations was the same, the elements needed to prove each allegation were different and therefore the two allegations were not clearly multiplicious.
Following several prehearing conferences and the completion of discovery, I held a formal hearing on June 21 and 22, 2017 at the Jackson Federal Building in Seattle, Washington. Both parties filed post -hearing briefs containing proposed findings of fact, conclusions of law, and argument in support of their positions. I have carefully reviewed the entire record in this case, including witness testimony, exhibits, applicable statutes, regulations, and case law, And find Allegation One (Misconduct: Violation of Company Policy) PROVED and Allegation Two (Misconduct: Violation of 18 U.S.C. § 2241(a)(1)) NOT PROVED.
FINDINGS OF FACT
1. At all relevant times, Respondent was the holder of a Coast Guard-issued MMC.
2. Respondent also holds the endorsement of Chief Engineer motor and gas turbine, unlimited horsepower. [CG-01; Tr. II-26].
3. Respondent acted under the authority of his MMC on June 10, 2016 by serving as Chief
Engineer aboard the vessel USNS VICTORIOUS as a condition of employment. [Tr. I-
14].
4. The United States Naval Ship (USNS) VICTORIOUS (T-AGOS 19) is a U.S. Military
Sealift Command (MSC) oceanographic surveillance vessel. [Tr. I-14, EX CG-02].
5. The U.S. Coast Guard issued a Certificate of Inspection to the USNS VICTORIOUS
setting out the crewing requirements for this vessel. [EX CG-02].
6. On June 10, 2016, the USNS VICTORIOUS was operated by Crowley Technical
Management ("Crowley"). [Tr. I-14].
7. Crowley maintains a Code of Conduct, which covers all its employees. [Tr. I-15-16; EX
CG-15].
8. Crowley also maintains procedural documents regarding harassment and sexual harassment, which are complimentary and supplementary to the Code of Conduct. [Tr. I-16; EX CG-13 and CG-14]. The company has since undergone a name change and is now known as Crowley Government Services. [Tr. 1-14].
9. At the relevant time, Crowley also prohibited its employees from drinking alcohol, but
that prohibition has since been revoked. [Tr. 1-34].
10. On June 10, 2016, Respondent was employed by Crowley Maritime and assigned to the
USNS VICTORIOUS as the Chief Engineer. [Tr. I-13].
11. As a Crowley employee, Respondent had signed a document acknowledging he had received, read, and understood the Code of Conduct and other policy documents, including those on harassment and sexual harassment. [Tr. I-16; EX CG-14].
12. Captain [REDACTED] was Master of the USNS VICTORIOUS on June 10, 2016.
13. On June 10, 2016 [REDACTED] was serving as an ordinary seaman (OS) aboard the USNS VICTORIOUS. [Tr. I-15}.
14. Other members of the crew included 2AE, OMED, MDR,and SOC Tech [Tr. I-EX CG-6-10].
15. The crew of the USNS VICTORIOUS was sailing under articles. [Tr. 1-24].
16. On June 8, 2016, the USNS VICTORIOUS docked in Sasebo, Japan after being at sea for approximately fifty (50) days. [Tr. I-30, I-56; EX CG-4].
17. Several members of the crew, including Respondent and Ms. shore leave the evening of June 10, 2016. [Tr. 1-33].were on approved
18. Ms [REDACTED] testified she went to dinner with Mrs [REDACTED] and Mr. [REDACTED] recalled that Mr. [REDACTED] However, Mr. [REDACTED]another crewmember named [REDACTED] also went with them, while Mr [REDACTED] believed the Mr. [REDACTED] and Mr. [REDACTED] group included himself, Ms. [Tr. I-59, I-110, 1-158].
19. After dinner, the group went to Shooters Shot Bar for about thirty to forty-five minutes. [Tr. I-65, I-127].
20. The group proceeded to another bar, Blue Jays, and was there for approximately thirty to forty minutes. [Tr. I-112, I-114].
21. The rest of the group, with the exception of [REDACTED] took two taxis to the Kiss Me Bar, where they had arranged to meet another crewmember named [REDACTED] [Tr. I-68-69, Tr. I-126] after he got off watch.
22. Although the testimony conflicts as to whether Respondent joined the group prior to going to the Kiss Me Bar or was already in the bar when the rest of the group arrived, he was there at all times relevant to the allegations in this case. [Tr. I-66; I-112-114; I-158-161, II-33-38].
23. The Kiss Me Bar is in a very small space. [Tr. I-71, I-97-98].
24. The VICTORIOUS crewmembers, along with a contractor who worked aboard a different ship, sat at the bar. Ms [REDACTED] as close to one end, while Respondent was close to the other end. [Tr. I-73-75; EX ALJ-I).
25. After the crewmembers had been at the Kiss Me Bar for some time, Respondent called Ms [REDACTED] over to talk to her. [Tr. I-78-79].
26. Respondent made a proposition that was sexual in nature to Ms. [REDACTED] [Tr. 1-79].
27. Ms. [REDACTED] shook her head and told Respondent no, and appeared upset and defensive to witnesses. (Tr. I-80, 1-117-118, I-162].
28. Ms. [REDACTED] began to return to her seat, but changed her mind and went to the restroom instead. [IT. I-80].
29. The Kiss Me Bar has only one restroom, which is located between one end of the bar and the exit door. [Tr. I-82, I-131-133; ALJ EX-I].
30. Respondent then went toward the restroom and began jiggling the door handle, but could
not get in because the door was locked. [Tr. 1-81].
31. When Ms. [REDACTED] opened the door, Respondent blocked her way out of the restroom and attempted to grab her arms. [Tr. I-85, I-119, I-163].
32. Ms. [REDACTED] kicked Respondent and he attempted to grab her leg, but she was able to kick and push her way past him and exit the restroom. [Tr. I-85-86].
33. Ms. went out the exit door and crewmembers [REDACTED] joined her.
34. Ms [REDACTED] told them she wanted to return to the ship but still needed to use the restroom. [Tr. I-87].
35. Mr. [REDACTED] stood outside the restroom door to guard it while Ms. retrieved her belongings from her seat. [Tr. I-120, I-164].
36. Mr. [REDACTED] and Ms. [REDACTED] returned to the ship. [Tr. I-87].
37. On June 13, 2016, Ms. [REDACTED] reported the incident to Captain [REDACTED] [I-92; EX CG-05] [Tr. I-35, I-39-40].
38. Captain [REDACTED] notified Captain [REDACTED] TAGOS and TAGM vessels, about Ms.[REDACTED] the Fleet Port Captain for Crowley's report. [Tr. I-17].
39. Captain [REDACTED] directed Captain [REDACTED] to obtain and provide statements from all the witnesses. [Tr. 1-17].
40. After reviewing the statements and evidence in the file, Captain [REDACTED] determined that Respondent had violated Crowley's Code of Conduct on June 10, 2016. [Tr. I-17].
41. The file did not contain a statement from Ms. [REDACTED] the bartender the night of June 10, 2016. [Tr. I-21] and manager at Kiss Me Bar.
42. On June 14, 2016, Captain [REDACTED] directed Captain [REDACTED] to terminate Respondent's employment at Crowley immediately. [Tr. I-19; EX CG-04, CG-05].
43. Captain [REDACTED] did so, and Respondent departed the USNS VICTORIOUS shortly afterward.
44. The Criminal Investigations Division (CID) at the naval base in Sasebo opened an investigation into the matter at the Coast Guard's request. [Tr. I-175].
45. MA1 [REDACTED] a member of the Navy's military police, was assigned to interview Ms. [REDACTED] [Tr. I-175].
46. Petty Officer [REDACTED] was unable to interview Ms.[REDACTED] in person so he conducted a telephone interview. [Tr. I-176].
47. Petty Officer [REDACTED] notes of the interview state Ms. [REDACTED] was "firmly on the side of the suspect, and claims that the female was highly intoxicated." [Tr. I-178; EX R-B].
48. The CID did not recommend any further action, but passed the information along to the Coast Guard. [Tr. I-182].
DISCUSSION AND CONCLUSIONS OF LAW
A. Principles of Law
The purpose of Coast Guard suspension and revocation proceedings is to promote safety at sea. 46 U.S.C. § 7701(a). In furtherance of this goal, Administrative Law Judges (ALJs) have the authority to suspend or revoke Coast Guard-issued credentials and endorsements. See 46 C.F.R. § 5.19(6). Title 46 U.S.C. § 7702(a) provides that Coast Guard suspension and revocation proceedings are conducted under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. Section 7(c) of the APA places the burden of proof on the proponent of a rule or order, unless otherwise provided by statute. Here, because the Coast Guard brought this action, it bears the burden of proof. 33 C.F.R. §
20.702(a). The standard of proof in administrative proceedings is "preponderance of the evidence," meaning a party
must prove that a "fact's existence is more likely than not." Steadman v. SEC, 450 U.S. 91, 98 (1981); Greenwich
Collieries v. Dir. of Workers' Comp. Programs, 990 F.2d 730, 736 (3d Cir. 1993). The ALJ, as the finder of fact,
must consider the "whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence" before assessing a sanction. 5 U.S.C. § 556(d).
Evidentiary rules under the APA are less strict than in jury trials, and a judge must only
exclude irrelevant, immaterial, or unduly repetitious evidence. See 5 U.S.C. § 556(d); Gallagher
v. Nat'l. Transp. Safety Bd., 953 F.2d 1214, 1214 (10th Cir. 1992); Sorenson v. Nat'l. Transp.
Safety Bd., 684 F.2d 683, 688 (10th Cir. 1982). Moreover, evidence "need not be authenticated
with the precision demanded by the Federal Rules of Evidence" in order to be admissible in an
administrative proceeding. Gallagher at 1218; Appeal Decision 2664 (SHEA) (2007).
In this case, the Coast Guard alleges that Respondent committed misconduct by violating
Crowley Maritime's CT T-AGOS /T-AGM Vessel Safety Management Manual, Code of
Conduct, sections 4.7.1 (Assault, fighting, or threatening bodily harm), 4.7.13 (Intimidation,
coercion and interference with the work of other crewmembers), and 4.7.16 (Harassment or
discrimination against another employee, port officials, or any other visitor). The Coast Guard
further alleges that Respondent committed misconduct by attempting to force another
crewmember to have sexual intercourse in violation of 18 U.S.C. § 2241(a)(1). Thus, the Coast
Guard has the burden of proving this allegation by reliable, credible, and probative evidence
showing that Respondent more likely than not committed these violations.
Accordingly, the Coast Guard must prove by the preponderance of the evidence that (1)
Respondent is the holder of a merchant mariner credential; and (2) while acting under the
authority of that credential, (3) he committed an act of misconduct by violating a formal, duly
established rule (Crowley Maritime's Vessel Safety Management Manual, Code of Conduct,
sections 4.7.1, 4.7.13, and 4.7.16 and/or 18 U.S.C. § 2241(a)(1)).
B. Jurisdiction
Jurisdiction in misconduct cases is established only if the misconduct occurred while the
mariner Was acting under the authority of his MMC. 46 U.S.C. § 7703; see also Appeal Decision
2615 (DALE) (2000). A mariner acts under the authority of a Coast Guard-issued credential or
endorsement when the holding of such credential or endorsement is required either by law or
regulation or by an employer as a condition of employment. 46 C.F.R. § 5.57(a). A mariner does
not cease to act under the authority of his or her credential while on shore leave. 46 C.F.R. §
5.57(c).
Here, Respondent has admitted to the jurisdictional allegations, but the burden of
establishing jurisdiction nevertheless remains. See 33 C.F.R. § 20.310(c); Appeal Decision 2656
(JORDAN) (2006) (holding that even though the respondent admitted the charged offense, an
appeal must be granted where jurisdiction is not established). It is undisputed that Crowley
Marine employed Respondent as Chief Engineer aboard the USNS VICTORIOUS on June 10,
2016. As the COI for the USNS VICTORIOUS requires a Chief Engineer, holding an MMC
with engineer's endorsement was a required as a condition of his employment. He was on
authorized shore leave at the time of the alleged incident. Thus, I find he was acting under the
authority of his credential at the relevant time both as required by law and as a condition of
employment and jurisdiction for both allegations is established.
C.Analysis: Allegation 1 (Misconduct: Violation of Company Policy)
The Coast Guard alleged in Allegation 1 that Respondent committed misconduct by
violating numerous company policies. Title 46 U.S. C. § 7703 states: "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 . . ." Misconduct is defined in
46 C.F.R. § 5.27 as "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."
In its brief, the Coast Guard laid out the following factors it must satisfy to prove it
Allegation 1: first, that Respondent was subject to the company policies he is alleged to have
violated, which in turn requires the Coast Guard to prove a) that Ms. [REDACTED] was another
crewmember or employee; b) that the vessel was a T-AGOS/T-AGM vessel managed by
Crowley; c) that Respondent was a crewmember; and d) that the company policies were in effect
on the relevant date. Second, the Coast Guard had to prove that the company policies constituted
a duly established rule. Third, Respondent must be shown to have violated that rule. [CG Brief at
19-20]. The Coast Guard has pointed to exhibits and testimony it believes satisfy each of these
elements.
Respondent does not contest that he and Ms were both Crowley employees; that the USNS VICTORIOUS was under Crowley's management; or that the Code of Conduct and associated policies were a duly established rule in effect on June 10, 2016. His argument is that he did not violate any rules; he contends that the Coast Guard relies mainly on Crowley's investigation and subsequent termination of Respondent's employment to support its allegations, but that Crowley's investigation was inadequate. In particular, Respondent points to testimony from a Navy investigator, MA who conducted a criminal investigation into this matter. As part of his investigation, MA1 interviewed Ms. [REDACTED] the bartender at the Kiss Me Bar, who stated that Ms. [REDACTED] was intoxicated and flirting with Respondent on the evening of June 10, 2016. Crowley did not interview Ms. [REDACTED] and did not take her statements into account during its investigation. Respondent contends that the crewmembers who testified at hearing are not fully credible, and that the evidence shows that Respondent "may have bumped into Ms. [REDACTED] while attempting to use the restroom at the Kiss Me Bar." [Resp. Brief at 9.]
It is clear from the evidence that both Respondent and Ms [REDACTED] were Crowley
employees assigned to the USNS VICTORIOUS on June 10, 2016. It is also clear that the USNS
VICTORIOUS is a T-AGOS vessel and Crowley was under contract to operate it on that date.
Moreover, the testimony and exhibits show that the Vessel Safety Management Manual, Code of
Conduct entered into evidence at the hearing was in place on the date in question. I therefore find
each of these elements satisfied.
Next, I must consider whether the Code of Conduct was a duly established rule. The Commandant has held that "A private steamship company's policy for maintenance of order and good safety conditions aboard a vessel, governing the conduct of the crew, is precisely the kind of rule that does establish standards for the invocation of . . . 'misconduct'" in suspension or revocation proceeding. Appeal Decision 1567 (CASTRO) (1966). While Castro was concerned with a policy governing safety aboard a ship, the policies at issue here concern the maintenance
of order aboard the vessels Crowley contracted to operate, including the VICTORIOUS. Thus,
even though Castro states, "A company policy with regard to whether a crewmember could act in
certain ways or wear certain clothing while ashore, absent some other considerations, could have
no connection with safety aboard the ship," Crowley's policies regarding its employees'
interactions with coworkers clearly has a connection with the maintenance of good order
onboard the vessel, even if those interactions occur off the vessel. I therefore find that Crowley's
Code of Conduct is the kind of rule that, if broken, can properly underlie a misconduct a
Allegation.
Finally, must determine whether Respondent violated the company policy. The Coast
Guard alleged in its Complaint that Respondent violated three sections of the Code of Conduct.
The first is section 4.7.1 (Assault, fighting, or threatening bodily harm; section 4.7.13
(Intimidation, coercion, and interference with the work of other crewmembers), and 4.7.16
(Harassment or discrimination against another employee, port officials, or any other visitor). During the hearing, one witness referred to another section of Crowley's policy, 4.7.21
(Behavior or misbehavior while ashore that could result in delay to the vessel), but the
Coast Guard did not include this section in its Complaint.
Credibility Issues
When evaluating the evidence in the record, an ALJ must make determinations as to its credibility and reliability. The ALJ "is vested with broad discretion in making determinations
regarding the credibility of witnesses and in resolving inconsistencies in the evidence." Appeal
Decision 2519 (JEPSON) (1991). This is because, as the presiding official, the ALJ "can fully
observe the response, character and demeanor of the witnesses in issue.' Id. Some factors
traditionally involved in a credibility determination include: (1) the demeanor of the witness, (2) the inherent plausibility of the witness's testimony, (3) the consistency of the testimony of the
witness with prior statements of the witness, (4) the internal consistency of the witness's statements, (5) the consistency of the testimony with other evidence, (6) the accuracy of the witness's testimony, and (7) the interest of the witness in the outcome of the proceeding. Other factors may also apply but a credibility assessment is commonly made based on the totality of the circumstances after considering any relevant fact that may impact the witnesses [sic] credibility. St. Claire Marine Salvage, Inc. v. Bulgarelli, No. 13-10316, 2014 WL 3827213, at *6 (E.D. Mich. Aug. 4, 2014), affd (6th Cir. 14-2135) (July 22, 2015). The essence of credibility is
whether the testimony in the record is well-supported and believable; "[]he presence of evidence
which conflicts with the testimony of a witness is not, in itself, enough to conclusively show a
lack of credibility of that witness when there is substantial evidence that supports his account."
Appeal Decision 2017 (TROCHE) (1975).
Here, a number of credibility issues have arisen. First is the question of whether any or all
of the crewmembers involved in this incident had been drinking alcohol on the evening of June
10, 2016. Ms. [REDACTED] Mr. [REDACTED] and Mr. [REDACTED] denied drinking any alcohol that evening, but Mr. [REDACTED] said Respondent and Mr. [REDACTED] were both drinking beer. [Tr. I-113-115]. Respondent initially denied having consumed alcohol but later admitted to having : couple beers. The statement MAI obtained from the Kiss Me Bar bartender indicated that both Ms. [REDACTED] and Respondent were highly intoxicated, however, the bartender was not available to testify at the hearing. The written statement of who also did not testify at the hearing, states that the group "Went to the establishment call Kissme [sic] to enjoy karaoke and libations." [EXCG-10].
Captain [REDACTED] testified Crowley employees had been prohibited from drinking alcohol
prior to the date of the incident. However, Ms. [REDACTED] testified, "They notified us that the military personnel had curfew that we didn't necessarily have a curfew but we were to be on our best behavior. . . . We are always discouraged from drinking, but particularly this time." [Tr. I-58].
Regardless of whether the crewmembers understood that drinking was absolutely prohibited or believed it was merely discouraged, it is clear that they had incentive to deny having consumed alcohol. Nevertheless, there is no evidence in the record about any person's level of intoxication, except that Respondent admitted to consuming a couple beers. While I do not find it credible that Respondent and Mr. [REDACTED] were the only crewmembers who consumed any alcohol whatsoever that evening, I also do not find the issue of intoxication material to my determination
of whether Respondent committed misconduct on the evening in question.
I do find credible the testimony that Respondent said something sexual in nature to Ms. [REDACTED] the bar, which visibly offended her and made her uncomfortable. I also find credible the testimony that Respondent tried to enter the restroom when Ms. [REDACTED] was inside and blocked her way when she tried to leave. Respondent's characterization of the events the evening of June 10, 2016 is not fully credible, particularly his description of what happened at the Kiss Me Bar bathroom. Respondent testified that he was sitting at the bar playing with his cell phone and that Ms. [REDACTED] was in an altercation with Mr. [Tr. 11-40-41]. He also testified that afterward, Ms. [REDACTED] came to talk to him and implied she wanted him to rub her back, SO he did. [Tr. II-41-42]. This testimony is self-serving and clearly conflicts with the weight of the evidence in the record.
Finally, the Coast Guard presented evidence through the testimony of Mr. [REDACTED] "within a day or two of the charged incident, [Respondent] exhibited similarly assaultive behavior against another female in another bar thus demonstrating his state of mind and pattern
Of behavior ..." [CG Brief at 14]. I do not give any weight to this evidence. Mr. [REDACTED] stated he heard about the second incident from engineers on a sister ship, but he did not personally witness it. While hearsay is not necessarily inadmissible in administrative proceedings, without corroborating evidence I do not consider Mr testimony to establish a pattern of behavior as the Coast Guard alleges.
2.Assault, Intimidation, and Harassment
The evidence does substantiate the allegation that Respondent committed an assault against Ms. [REDACTED] at the Kiss Me Bar. The common law definition of assault is "The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery." Black's Law Dictionary (10th ed. 2014), assault. In tort law, battery is "A nonconsensual, intentional, and offensive touching of another without lawful justification, but
not necessarily with the intent to do harm or offense as required in a criminal battery;" the crime
of battery, on the other hand, does require intent to cause harm or offense. Black's Law
Dictionary (10th ed. 2014), battery. The Commandant has held that, for purposes of suspension
and revocation cases, intent to injure is not an element of assault or battery. Appeal Decisions
2512 (OLIVO) (1990), 2452 (MORGANDE) (1987); 2273 (SILVERMAN (1982).
When Respondent attempted to grab Ms [REDACTED] arms and leg in order to pull her into
the restroom at the Kiss Me Bar, he put her in reasonable fear of a battery; that is, a nonconsensual, intentional, and offensive touching. Regardless of Respondent's intent, he was
not justified in touching Ms [REDACTED] without her consent and the evidence shows that his attempt to grab her was intentional, not accidental. I also find it credible that Ms [REDACTED] did not consent to the touching, particularly because she was already upset with Respondent. I therefore find sufficient evidence to support the allegation that Respondent violated Crowley' prohibition against assault (section 4.7.1).
Next, I consider the allegation that Respondent violated Crowley' prohibition against
intimidation of another coworker (section 4.7.13). To intimidate is "to make timid or fearful:
frighten:especially : to compel or deter by or as if by threats." Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/intimidation. At the hearing, Ms. [REDACTED] credibly testified that her interactions with Respondent on June 10, 2017 scared her, and I observed that being in close proximity to Respondent in the hearing room left her clearly shaken and upset.
However, the Crowley Code of Conduct defines as particular act of misconduct "Intimidation,
coercion, and interference with the work of other crewmembers." [EX CG-15 Section 4.7.13].
Taking these three words together in context, find that the best reading of this section is that it
prohibits intentional acts of intimidation such as bullying. While Ms.
clearly felt intimidated, I find that the acts found proved do not rise to a level to establish the intentional intimidation contemplated by Crowley's policy.
Finally, Crowley found that Respondent violated its prohibition against harassment of
another coworker (4.7.16). In addition to its general Vessel Safety Management Manual, Code of
Conduct, Crowley maintains specific policies regarding harassment and sexual harassment. [EX
CG-12 and CG-13]. The policy on harassment defines that behavior as "verbal, physical and
visual conduct which creates an intimidating or hostile working environment or which interferes with work performance." [EX CG-12]. The sexual harassment policy prohibits "verbal conduct
such as epithets, derogatory jokes or comments, slurs, or unwanted sexual advances, invitations
or comments," visual conduct including posters, photographs, and gestures, "physical conduct
such as assault, unwanted touching, blocking normal movement or interfering with work because
of sex," threats and demands involving sexual favors, and retaliation for reporting or threatening
to report sexual harassment. [EX CG-13].
Here, the credible evidence established that Respondent made unwanted sexual comments, engaged in unwanted touching, and blocked Ms. [REDACTED] movements. Even though
they were not onboard the ship at the time, they were nevertheless acting under their MMCs
because they were on approved shore leave. Moreover, Ms. [REDACTED] testified that she was unable to work her full shift the following day; she stated, "I was dismissed, because I wasn't as safe as normal, I guess you could say, I was distracted." [Tr. I-102]. Thus, the incident did have a detrimental effect on her work performance.
Consequently, I find Allegation 1 of the Coast Guard's Complaint PROVED.
D.Analysis: Allegation 2 (Misconduct: Violation of 18 U.S. C. § 2241(a)(1))
The Coast Guard has alleged that Respondent committed misconduct by violating 18
U.S.C. § 2241(a)(1). While I previously found that this statute "cannot be fairly described as a
law 'intended to promote marine safety or to protect navigable waters'" and therefore "cannot
constitute a basis for suspension or revocation under 46 U.S.C. § 7703 (1)(A)," I amended the
Complaint to allege misconduct pursuant to 46 U.S.C. 7703(1)(B). The Commandant has held
that a "plain-language reading of the definition of 'misconduct' shows that it includes behaviors
that violate statutes. ... The alleged violation of those statutes, whether they allow for the
imposition of criminal penalties, or not, is -by regulatory definition-misconduct that may
In reaching this determination, I find it unnecessary to consider the other, long-term effects Ms.
Testified about. These are further discussed in the in Sanction section, infra. properly result in the initiation of suspension and/or revocation proceedings." Appeal Decision 2658 (ELSIK) (2006). Even if no criminal charges were filed, or if criminal charges resulted in acquittal, the standards of proof in criminal and administrative cases are different and the Coast Guard may bring a case based on that behavior. Id.
The statute in question here, 18 U.S.C. § 2241(a)(1), defines aggravated sexual abuse by threat or force as when a person "knowingly causes another person to engage in a sexual act By using force against that person ...Or attempts to do so . . ." However, at the hearing, I noted that the term "sexual act" has a specific statutory definition, which is found at 18 U.S.C. § 2246(2). The term is defined as:
(A) Contact between the penis and the vulva or the penis and the
anus, and for purposes of this subparagraph contact involving the
penis occurs upon penetration however slight;
(B) Contact between the mouth and the penis, the mouth and the
vulva, or the mouth and the anus;
(C) The penetration, however slight, of the anal or genital opening
of another by a hand or finger or by any object, with an intent to
abuse, humiliate, harass, degrade, or arouse
desire of any person; or
or gratify the sexual
(D) The intentional touching, not through the clothing, of the
genitalia of another person who has not attained the age of 16 years
with an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person . ..
18 U.S.C.2246(2).
I ordered the parties to brief, as part of their closing submissions, the issue of whether a "sexual act" as defined in the statute had occurred in this case. The Coast Guard contends the evidence shows that Respondent "proposed engaging in sexual acts with Ms. in the bathroom of the Kiss Me Bar, then "forcefully attempted to enter the bathroom" and "aggressively grabbed [Ms [REDACTED] as she exited the bathroom in an apparent attempt to drag her back into the bathroom." [CG Brief at 4.1 The Coast Guard argues by statute, that, as long as the acts Respondent proposed to her were "sexual acts" as defined should find the allegation of attempted aggravated sexual abuse by force proved. [Id.]
Respondent argues that the only evidence that Respondent made any physical contact with Ms. was her testimony that he grabbed her arm "not forcefully" while at the bar, then attempted to grab her arms and leg outside the restroom when she kicked him. He contends that "there was absolutely no evidence that any sexual act as defined occurred and therefore no violation of 18 U.S.C.2241(a)(1) [sic]." [Resp. Brief at 6-7.] However, Respondent's brief did not address the issue of whether the evidence supported an attempted sexual act.
The degree of force necessary for a violation of 18 U.S.C. § 2241(a)(1) is not defined or specified in the statute. However, "[the legislative history of the statute, the Sexual Abuse Act of 1986, Pub. L. No. 99-654, 100 Stat. 3660 ... states that '[q]he requirement of force may be
satisfied by a showing of ... the use of such physical force as is sufficient to overcome, restrain,or injure a person. . .. H.R. REP. NO. 594, 99th Cong., 2d Sess. 14 n. 54a, reprinted in 1986
U.S. CODE CONG. & ADMIN. NEWS 6186, 6194 n. 54a." U.S. v. Lauck, 905 F.2d 15, 17 (2d
Cir. 1990). If a person uses sufficient force to prevent the victim from escaping the sexual
conduct, such force is sufficient; additionally, force may sometimes by implied from a disparity
in physical size and/or coercive power between the (wo. See, c.%,, U.S. v. Bordenux, 997 F.2d
419, 421 (8th Cir. 1993); U.S. v. Lucas, 157 F.3d 998, 1002 (5th Cir. 1998).
The force Respondent used when he tricd to grab Ms. arms and legs at the restroom door does not appear sufficient to qualify under 18 U.S.C. § 2241(a)(1). There was no evidence that Ms. sustained any sort of injury, and she was able to kick Respondent and then leave the vicinity of the restroom. Having seen both Respondent and Ms [REDACTED] person, observed that Respondent does not have any significant height or weight advantage and find it credible that she was able to rebuff his physical advances and escape. Respondent did hold a senior position onboard the ship and Ms [REDACTED] was a junior crewmember, but he evidently did not hold enough coercive power (o prevent her from fighting back against him and later reporting the incident to the commanding officer. The evidence does not establish that Ms. [REDACTED] was overcome, restrained or injured by his physical or coercive power during the incident at the restroom door, thus I do not find Respondent used "force" within the meaning of the statute.
However, the Coast Guard does not allege that Respondent actually carried out the acts
described in 18 U.S.C. § 2241(a)(1) and 18 U.S.C. § 2246(2), but rather that he attempted to do
so. The Coast Guard urges me not to apply an "overly restrictive requirement of specificity"
because this would "render the 'attempt' theory virtually nugatory." [CG Brief at 4.] Instead, the
Coast Guard states that "the decision of whether the attempt was to commit a 'sexual act' must
be made based on reasonable inferences that take into account context, circumstances, and the
like, considered in light of ordinary life experience and applying knowledge of human nature."
[CG Brief at 5.]
Numerous courts have considered the meaning of attempted aggravated sexual abuse
under 18 U.S.C. § 2241(a). "An attempt requires (1) an intent to engage in criminal conduct, and
(2) conduct constituting a substantial step toward the commission of the substantive offense
which strongly corroborates the actor's criminal intent." U.S. v. Robertson, 606 F.3d 943, 953
(8th Cir. 2010), overruled on other grounds by U.S. v. Anderson, 783 F.3d 727 (8th Cir. 2015).
The Supreme Court has held that an element of an attempted crime "at common law . . .
include{s] a specific intent to commit the unlawful act." Braxton v. U.S., 500 U.S. 344, 351 n.
(1991). Accordingly, each Circuit that has considered this issue has held that, although
aggravated sexual abuse is a general intent crime, attempted aggravated sexual abuse is
nevertheless a specific intent crime. See U.S. v. Crowley, 236 F.3d 104, 111 (2d Cir. 2000); U.S.
v. Pierce, 16 F.3d 1223, (Table) (6th Cir. 1993) (unpub.); U.S. v. Kenyon, 481 F.3d 1054, 1070
(8th Cir. 2007); U.S. v. Sneezer, 900 F.2d 177, 180 (9th Cir. 1990).
This stands in contrast to general Coast Guard policy, which is that "specific intent is not
a prerequisite element for proof of misconduct or violation of law in suspension and revocation
proceedings which are by nature remedial." Appeal Decisions 2608 (SHEPHERD) (1999); 2512 (OLIVIO). However, I was unable to locate any Coast Guard case law in which a misconduct
allegation was premised on an attempt to violate a law rather than a concrete violation of law.
Unlike those cases, the behavior in question here could not constitute a violation of 18 U.S.C. §
2241(a)(1) without a showing of specific intent.
The Coast Guard's closing brief asks me to engage in a great deal of conjecture about
Respondent's intentions toward Ms. [REDACTED] at the Kiss Me Bar. What the evidence clearly establishes is that Respondent said something of a sexual nature to Ms. that he followed
her when she went to the restroom and jiggled the door handle, and that the two had an altercation at the restroom door. The preponderance of the evidence has not established that
Respondent specifically intended to use force against Ms. [REDACTED] In order to engage in sexual acts with her.
The second element is that Respondent must have taken a substantial step toward committing the crime. A substantial step is one that "must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime." U.S. v. Manley, 632 F.2d 978, 987 (2d Cir. 1980). It "must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude ... that it was undertaken in accordance with a design to commit the substantive offense." U.S. v. Wahlstrom, 588 F.3d 538, 543 (8th Cir. 2009). The purpose of this element is to "corroborate the actor's specific intent to commit the crime. Thus, the act must be of such an unequivocal nature that it is calculated to bring the desired result to fruition." U.S. v. Plenty Arrows, 946 F.2d 62, 66 (8th Cir. 1991); see also U.S. v. Bauer, 626 F.3d 1004, 1008 (8th Cir. 2010).
The evidence fails to establish that Respondent took a substantial step toward committing
the crime of aggravated sexual abuse. While he made unwanted physical contact by grabbing at
Ms. [REDACTED] arms and leg, the cases in which courts have found substantial steps toward aggravated sexual abuse involve such acts as the removal of clothing, inserting one's hands under another person's clothing in an attempt to touch or penetrate genitalia, fondling another person's genitalia through clothing, and similar actions. See. e.g. U.S. v. Crowley, 318 F.3d 401, 408 (2d Cir. 2003); U.S. v. Hollow Hom, 523 F.3d 882, 891 (8th Cir. 2008); Kenyon, 481 F.3d at 1067-68; U.S. v. Lee, 315 F.Supp.2d 1038, 1045 (D. Ariz. 2003). have found no cases in which a court determined that acts such as propositioning another person or trying to grab a person's arm or leg were "unequivocal" or "more than preparatory." Indeed, some courts have held that "mere solicitation and fully clothed but sexually suggestive acts are insufficient to constitute attempted 'sexual acts'[.]" U.S. v. Blue Bird, 372 F.3d 989, 993 (8th Cir. 2004) overruled in part on other grounds by U.S. v. Pirani, 406 F.3d 545 (8th Cir. 2005); see also U.S. v. Hayward, 359 F.3d 631, 640 (3d Cir. 2004).
Moreover, while it carries less weight in my determination than the hearing testimony
and witness statements, I note that Crowley's own investigation report states, "Multiple
corroborating statements CGS also find evidence of non-sexual assault associated with this
incident, also in violation of Crowely's SMS Code of Conduct. [Tr. I-23; EX CG-4]. Captain
further explained, "We did not substantiate sexual contact. . .. Hence the word, "Assault," and not sexual assault." [Tr. I-23].
Even assuming for the sake of argument that the Coast Guard is not required to prove Respondent specifically intended to force Ms. to engage in sexual acts, the evidence does not establish that he used the requisite degree of force against her or that he took substantial preparatory steps toward violating 18 U.S.C. § 2241(a)(1). Consequently, Allegation Two is NOT PROVED.
IV. FACTORS CONSIDERED IN DETERMINING AN APPROPRIATE ORDER
Having found Allegation One proved, I must now issue an appropriate order in this matter. 33 C.F.R. § 20.902(a)(2). Coast Guard regulations detail the factors to consider in determining an appropriate order. 46 C.F.R. § 5.569. However, "An Administrative Law Judge has wide discretion to formulate an order adequate to deter the [a mariner's] repetition of the violations he was found to have committed." Appeal Decision 2475 (BOURDO)(1988). "The selection of an appropriate order is the responsibility of the Administrative Law Judge, subject to appeal and review. The investigating officer and the respondent may suggest an order and present argument in support of this suggestion during the presentation of aggravating or mitigating evidence." 46 C.F.R. § 5.569(a). am not bound by the Coast Guard's recommendations.
In determining an appropriate sanction, an ALJ may consider the following factors: (1) remedial actions which have been undertaken independently by Respondent; (2) the prior record of Respondent, considering the period of time between prior acts and the act or offense for which presently charged is relevant; and (3) evidence of mitigation or aggravation. See 46 C.F.R. § 5.569(6). These rules include a Table entitled "Suggested Range of an Appropriate Order," guidance of Administrative Law Judges and is stating Table 5.569 "is for the information and
intended to promote uniformity in orders rendered. This table should not affect the fair and
impartial adjudication of each case on its individual facts and merits." 46 C.F.R. § 5.569(d).
The regulations explain how an ALJ may apply the "Suggested Range of an Appropriate Order" Table, noting that: The orders are expressed by a range, in months of outright suspension, considered appropriate for the particular act or offense prior to considering matters in mitigation or aggravation. For instance, without considering other factors, a period of two to four months outright suspension is considered appropriate for failure to obey a master's written instructions. An order within the range would not be considered excessive. Mitigating or aggravating factors may make an order greater or less than the given range appropriate. Orders for repeat offenders will ordinarily be greater than those specified.(46 C.F.R. § 5.569d).
In Coast Guard suspension and revocation cases, "[the sanction imposed in a particular
case is exclusively within the authority and the discretion of the ALJ," who is not bound by the
scale of average orders. Appeal Decision 2628 (VILAS) (2002) (citing Appeal Decisions 2362
(ARNOLD)(1984) and 2173 (PIERCE) (1979)). "In the absence of a gross departure from the
Table of Recommended Awards, the order of the ALJ will not be disturbed on review." Appeal
Decision 2628 (VILAS) (citing Appeal Decision 1937 (BISHOP) (1973)).
A. Coast Guard Arguments on Sanction
The Coast Guard has requested I issue an order of revocation in this matter, arguing "Respondent's actions on the date in question represent a real threat to the safety and wellbeing
of those serving alongside him in the merchant marine." [CG Brief at 23.] The Coast Guard
contends that, as Chief Engineer, Respondent was "expected to be one of the leaders on board
the vessel, someone who sets an example, enforces company policy, and provides a safe work
environment for the crew," but instead took advantage of a subordinate and abused his position of power. [Id.] Finally, the Coast Guard urges me to consider the adverse long-term effects on Ms. [REDACTED]emotional state and career.
B. Respondent's Arguments on Sanction
Although Respondent argued there was no misconduct and therefore no sanction is
warranted, he did present several factors in mitigation in the event I found either allegation
proved. Respondent has been a merchant mariner for over 22 years and has no previous
violations; his job is also his sole means of support. [Resp. Brief at 9-10]. Respondent pointed
out that if, as have indeed found, the first allegation was proved and the second allegation was
not proved, the Table of Average Orders found at 46 C.F.R. 5.569 suggests a two to six month suspension for misconduct involving violent acts against person (without injury). Respondent
contends that, as he was prevented from engaging in any discovery about Ms [REDACTED] current mental and emotional state and assured by the Coast Guard it would not be
brought up at hearing, I should not consider it as evidence in aggravation. [Resp. Brief at 9-10].
Finally, Respondent cites three Commandant Decisions on Appeal upholding sanctions of significantly less than revocation for acts of sexual assault and sexual harassment arguably more serious than those at issue here. [Resp. Brief at 11-12].
C. Conclusions as to Sanction
The purpose of suspension and revocation proceedings is to promote safety at sea. This
includes promoting a safe environment for crewmembers on shore leave, not only those
physically aboard a vessel. Coast Guard Suspension and Revocation proceedings are intended to
be remedial in nature, not penal, and "to help maintain standards for competence and conduct
essential to the promotion of safety at sea." 46 C.F.R. § 5.5. The potential sanctions take into
account the gravity of a mariner's offense: "An order of suspension levies accountability on a
mariner and deters that mariner and others from similar conduct, without permanently removing
that mariner from service at sea. By contrast, an order of revocation permanently removes a
mariner from service at sea in addition to its accountability and deterrence effects, presumably
because the conduct found proved is at least potentially inconsistent with safety at sea.' Appeal
Decision 2707 (CHESBROURGH) (2015).
In this case, the acts found proved are principally that Respondent made unwanted sexual
comments and advances, engaged in unwanted touching, and blocked Ms. [REDACTED] from leaving the restroom. Crowley's Code of Conduct sets out the basic rules of reasonable behavior the company expects of its officers and crew. As the USNS VICTORIOUS's Chief Engineer,
Respondent had a heightened level of responsibility in his actions involving subordinate
crewmembers. Additionally, Crowley's policy was intended to provide a workplace free of all types of unlawful sexual harassment, including both verbal conduct (such as unwanted sexual
advances, invitations or comments) and physical conduct (such as assault, unwanted touching
and blocking normal movement). The acts found proved clearly fall within Crowley' definition
of prohibited sexual harassment.
The Table of Average Orders does not specifically address sexual harassment. Coast Guard policy is to seek revocation for rape or sexual molestation. 46 C.F.R. § 5.61. The Table of
Average Orders found at 46 C.F.R. 5.569 recommends a two- to six- month suspension for
misconduct involving violent acts against person (without injury) and a four-month suspension
up to revocation for violent acts involving injury. The term "injury" is not defined in the Table or
associated regulations, but given its linkage to violent acts, I find that it means bodily injury. The
misconduct found here does not rise to rape or sexual molestation, and while it did include
unwanted touching, there was no evidence that the touching was violent in nature. However,
intent to injure is not necessarily an element of battery; "[a] battery may encompass any
unauthorized touching of another. "Appeal Decision 2452 (MORGANDE) (1987) (emphasis added).
Accordingly, must craft an order that will maintain standards for competence and conduct essential to the promotion of safety at sea and deter Respondent and other mariners from
committing sexual harassment and other prohibited behaviors. I take into account as a major
aggravating factor that this incident involved more than a single instance of unwanted sexual
advances or comments and unwanted touching. After Ms [REDACTED] rebuffed his initial advances, Respondent continued his behavior, subsequently confronting her again at the restroom, blocking her exit, and again attempting to touch her against her will. This resulted in Ms. [REDACTED] kicking him and forcing her way out of the restroom. I also find as an aggravating factor that as the Chief Engineer aboard the USNS VICTORIOUS, Respondent was a senior officer and had an enhanced duty to protect junior crewmembers, even those not under his direct command such as Ms. [REDACTED]
In mitigation, I note that Respondent has had a 22-year career as a merchant mariner with
no previous violations. Respondent argues that his job is also his sole means of support, and he is
nearing retirement. Given the nature of the offense, I believe that this case does not warrant revocation. Rather, a significant period of suspension coupled with a long probationary period is appropriate to remedy Respondent's misconduct and ensure he does not engage in similar acts in the future.
Consequently, I am ordering a one-year outright suspension of Respondent's MMC. I am further
ordering that, upon return of his MMC, Respondent will serve an additional twelve-month
suspension remitted on twenty-four months probation. The conditions of probation are that
Respondent not engage in any act of harassment, sexual harassment, or assault. In particular, l
Note that sexual harassment includes verbal conduct such as unwanted sexual advances, invitations or comments and physical conduct such as unwanted touching and blocking normal
movement.
ORDER
IT IS HEREBY ORDERED that Allegation One is found PROVED and Allegation
Two is found NOT PROVED; and
IT IS HEREBY FURTHER ORDERED that Respondent's Mariner's License is SUSPENDED for TWELVE MONTHS. Respondent's Credentials are to be surrendered to the
Coast Guard immediately; and
IT IS HEREBY FURTHER ORDERED that Respondent's Mariner's License is SUSPENDED for an additional TWELVE MONTHS, remitted on TWENTY-FOUR MONTHS PROBATION. The period of probation will commence upon completion of the outright suspension.
The conditions of probation are that Respondent not engage in any unlawful harassment, sexual harassment, or assault.
SO ORDERED.
George J. Jordan
US Coast Guard Administrative Law Judge
Date: January 23, 2018
PLEASE TAKE NOTICE that service of this Decision on the parties and/or parties'
representatives) serves as notice of appeal rights set forth in 33 C.F.R. § 20.1001 - 20.1004