UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA : DECISION OF THE 

UNITED STATES COAST GUARD : 

: VICE COMMANDANT 

 : 

 vs. : ON APPEAL 

 : 

 : NO. 2641 

 : 

MERCHANT MARINER DOCUMENT : 

 : 

 : 

Issued to: Renaldo Jones : 

 This appeal is taken in accordance with 46 U.S.C. § 7702, 46 C.F.R. § 5.701, and 

the procedures in 33 C.F.R. Part 20. 

By a Decision and Order (D&O) dated June 12, 2002, an Administrative Law 

Judge (ALJ) of the United States Coast Guard at New Orleans, La., revoked Mr. Jones’ 

(Respondent’s) merchant mariner document upon finding proved a charge of misconduct. 

The specification found proved alleged that “[o]n August 3, 2001, Respondent refused a 

random drug test ordered by Kirby Corporation.” 

 PROCEDURAL HISTORY

 The hearing was held on May 15, 2002, in New Orleans, La., where Respondent 

appeared and entered a response denying the charge and specification. The Coast Guard 

Investigating Officers introduced the testimony of two witnesses and three exhibits into 

evidence. Respondent did not call any witnesses but introduced two exhibits into 

evidence. 
JONES NO. 2641 

 The ALJ’s D&O was served on Respondent on June 12, 2002, and Respondent 

filed a notice of appeal on July 10, 2002. The deadline for the submission of an appellate 

brief by Respondent was August 12, 2002. Respondent did not request an extension of 

time within which to file his brief; however, within the filing deadline, Respondent 

submitted three letters to the ALJ Docketing Center. The first letter was undated but was 

received at the ALJ Docketing Center on July 17, 2002. The second letter was dated July 

27, 2002, and the third letter was dated August 5, 2002. In the interest of fairness, I will 

recognize these letters collectively as Respondent’s appellate brief. Therefore, this 

appeal is properly before me. 

APPEARANCE: Renaldo Jones, pro se. The Coast Guard was represented by 

LCDR Andrew Norris, USCG, and LTJG Joni Clifton, USCG, Marine Safety Office, 

New Orleans, La. 

FACTS

 At all relevant times, Respondent held the above captioned merchant mariner 

document. 

 On August 3, 2001, Kirby Inland Marine Corporation (hereinafter “Kirby 

Marine”) ordered the crew of the M/V LADY G II to submit to a random urinalysis drug 

test. [Trial Record (Tr.). at 30; I.O. Exhibit 1, 3] The order was based upon a computer 

program that randomly selected five vessels, including the M/V LADY G II, for crew 

testing during August 2001. [Tr. at 26, 30] Respondent was a tankerman aboard the 

M/V LADY G II and was in the second day of a two-week work detail on August 3, 

2001. [I.O. Exhibits 1, 3] Respondent refused to undergo drug testing on August 3, 

2001, despite being directed to do so. [Tr at 28, 52, 56; I.O. Exhibits 1, 2] After refusing 

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JONES NO. 2641 

to submit his urine for testing, Respondent abandoned his duties with the vessel. [I.O. 

Exhibit 3] 

 BASES OF APPEAL

 This appeal has been taken from the order imposed by the ALJ finding proved the 

charge of misconduct and revoking Respondent’s merchant mariner license. I have 

summarized the substance of Respondent’s three letters and have divided his assignments 

of error into four arguments: 

I. The ALJ erred by finding the misconduct charge proved because Kirby 

Marine is not Respondent’s employer and, as a consequence, did not have 

the right to require him to submit to a random drug test and, in so doing, 

violated his Privacy Act rights. 

II. A marine employer can direct an employee to submit to drug testing only 

if there is reasonable suspicion of drug use and sufficient notice is 

provided. Since neither reasonable suspicion of drug use nor sufficient 

notice of the drug test existed in the instant case, the ALJ erred by finding 

the misconduct charge proved. 

III. The ALJ erred by both allowing the Coast Guard Investigating Officers to 

submit “fraudulent paperwork” into evidence at the hearing and by using 

that paperwork in reaching his decision. 

IV. Respondent was the victim of racial discrimination because the ALJ 

Docketing Center engaged in a racist practice by signing letters 

addressed to him in blue ink. 

 OPINION

 I. 

The ALJ erred by finding the misconduct charge proved because Kirby Marine is not 

Respondent’s employer and, as a consequence, did not have the right to require him to 

submit to a random drug test and, in so doing, violated his Privacy Act rights. 

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JONES NO. 2641 

Respondent first asserts that the ALJ should not have found the misconduct 

charge proved because Kirby Marine was not his employer and, as a result, did not have 

the authority to require him to submit to a random drug test. Respondent contends that 

his personal employment records, including his IRS W-2 forms, clearly indicate that 

Lorris G Towing, not Kirby Marine, is his employer. As a result, he contends that Kirby 

Marine, who both identified him and selected him for random drug testing by using his 

Social Security Number, had no right to use such information and, in doing so, violated 

his rights under the Privacy Act. After a thorough review of the record, I find 

Respondent’s argument, in this regard, to be without merit. 

 I will reverse the decision of the ALJ only if his findings are arbitrary, capricious, 

clearly erroneous, or based upon inherently incredible evidence. Appeal Decisions 2570 

(HARRIS), aff ‘d NTSB Order No. EM- 182 (1966), 2390 (PURSER), 2363 (MANN), 

2344 (KOHADJA), 2333 (AYALA), 2581 (DRIGGERS), 2474 (CARMIENKE), 2607 

(ARIES), and 2614 (WALLENSTEIN). The findings of the ALJ need not be consistent 

with all the evidentiary material in the record as long as sufficient material exists in the 

record to justify the finding. Appeal Decisions 2527 (GEORGE), 2522 (JENKINS),

2519 (JEPSEN), 2506 (SYVERSTEN), 2424 (CAVANAUGH), 2282 (LITTLEFIELD) 

and 2614 (WALLENSTEIN). The standard of proof for suspension and revocation 

proceedings is that the ALJ findings must be supported by reliable, probative, and 

substantial evidence. 46 CFR 5.63, Appeal Decisions 2584 (SHAKESPEARE), 2592 

(MASON), 2603 (HACKSTAFF, and 2575 (WILLIAMS). 

 In relevant part, 46 C.F.R. § 16.230(b) makes clear that “marine employers shall 

establish programs for the chemical testing for dangerous drugs on a random basis of 

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JONES NO. 2641 

crewmembers on uninspected vessels who...perform the duties and functions directly 

related to the safe operation of the vessel.” As a tankerman aboard the M/V LADY G II, 

Respondent performed duties and functions directly related to the safe operation of the 

vessel. As a result, his employers could properly require that he submit to random drug 

testing. 

Although Respondent believes that Kirby Marine was not his employer because 

the company was not noted as such on his tax information, he fails to acknowledge the 

definition of “marine employer” applicable to the instant case. 46 C.F.R. § 16.105 makes 

clear that the term “marine employer” means “the owner, managing operator, charterer, 

agent, master, or person in charge of a vessel.” In the “Findings of Fact” portion of his 

D&O, the ALJ found that “Kirby Inland Marine charters all vessels owned and operated 

by Lorris G. Towing.” [D&O at 3] Therefore, as charterer of the M/V LADY G II, 

Kirby Marine met the Coast Guard’s definition of marine employer. As a result, Kirby 

Marine acted within the scope of the Coast Guard’s drug testing regulations when it 

directed Respondent to submit to a random drug test. In this context, Respondent’s 

argument that Kirby Marine was not his employer is without merit. 

 I will now address Respondent’s assertion that Kirby Marine violated his Privacy 

Act Rights by using his Social Security number to select him for random drug testing. 

Because Kirby Marine is, as I noted above, Respondent’s “marine employer,” this 

argument is wholly without merit. In addition, 46 C.F.R. § 16.230(c) makes clear, that 

random testing may be based upon either the random selection of employees by “Social 

Security numbers, payroll identification numbers, or other comparable identification 

numbers” or “by periodically selecting one or more vessels and testing all crewmembers 

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JONES NO. 2641 

covered by this section.” As I noted above, Respondent was selected for random drug 

testing via the latter method. Therefore, because Kirby Marine did not use Respondent’s 

Social Security number as a basis to select him for random drug testing, any discussion of 

the use of his Social Security number is not relevant to the instant case. 

 II. 

A marine employer can direct an employee to submit to drug testing only if there is 

reasonable suspicion of drug use and sufficient notice is provided. Since neither 

reasonable suspicion of drug use nor sufficient notice of the drug test existed in the 

instant case, the ALJ erred by finding the misconduct charge proved. 

Respondent next asserts that Kirby Marine did not have the authority to compel 

him to submit to a random drug test. After a careful review of the applicable regulations, 

I do not find Respondent’s argument to be persuasive. 

46 C.F.R. Part 16 makes clear that drug testing is required in five specifically 

enumerated circumstances: 1) Pre-employment testing; 2) Periodic testing; 3) Random 

testing; 4) Serious marine incident testing; and, 5) Reasonable cause testing. Therefore, 

contrary to Respondent’s assertion, random testing is specifically authorized by Coast 

Guard regulation and may, by its very nature, be conducted without notice or any 

suspicion of drug use. 46 C.F.R. § 16.230. As I noted above, the random selection 

process used by Kirby Marine to select Respondent for random testing satisfied all of the 

Coast Guard’s regulatory requirements. Therefore, I find Respondent’s second argument 

to be without merit. 

 III. 

The ALJ erred by both allowing the Coast Guard Investigating Officers to submit 

“fraudulent paperwork” into evidence at the hearing and by using that paperwork in 

reaching his decision. 

 Respondent next asserts that I.O. Exhibit 3 should not have been admitted into 

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JONES NO. 2641 

evidence because it was fraudulent. 

 I.O. Exhibit 3 consists of four pages. The first page is a letter from the office 

manager at Lorris G Towing to the Coast Guard explaining the relationship between 

Lorris G Towing and Kirby Marine. This page also introduces the remaining three 

pages. The second page is the Kirby Marine Drug and Alcohol Abuse policy issued on 

August 1, 2000, revealing that all personnel are subject to drug testing. Page three is the 

second page of a notice of receipt of the drug and alcohol abuse and testing policy 

signed by Respondent and a representative from Lorris G Towing. The final 

page is a Kirby Marine and Lorris G Towing drug and alcohol policy notice concerning 

three vessels including the M/V LADY G II. 

 Respondent raised many of the same arguments at the hearing when the Coast 

Guard moved to admit I.O. Exhibit 3 into evidence. [Tr. at 73-80] Respondent 

objected to the admission of the evidence on the ground that he had not signed pages 1, 2, 

and 4, and because he asserted that page 3 was not an original. Furthermore, Respondent 

objected that his name did not appear on the drug and alcohol policy statements. 

Finally, Respondent alleged that the documentation was merely typed up for the hearing 

and was, therefore, not reliable. [Tr. at 80] The record indicates that the ALJ fully 

considered Respondent’s arguments and subsequently admitted I.O. Exhibit 3 into 

evidence in its entirety. [Tr. at 80-81] 

 

 As I have already noted, I will reverse the decision of the ALJ only if his findings 

are arbitrary, capricious, clearly erroneous, or based upon inherently incredible evidence. 

Appeal Decisions 2570 (HARRIS), aff ‘d NTSB Order No. EM- 182 (1966), 2390 

(PURSER), 2363 (MANN), 2344 (KOHADJA), 2333 (AYALA), 2581 (DRIGGERS), 

7
JONES NO. 2641 

2474 (CARMIENKE), 2607 (ARIES), and 2614 (WALLENSTEIN). Pursuant to 

33 C.F.R. § 20.802, hearsay evidence, including documentary evidence containing 

hearsay, is admissible in S&R proceedings. It is without question that Kirby Marine had 

a drug testing policy in effect and Respondent, by signing page 3 of I.O. Exhibit 3, 

showed that he was aware of that policy. There is simply no evidence in the record to 

indicate that I.O. Exhibit 3 is either irregular or fraudulent. Since Respondent did not 

submit any evidence to support his assertion that the contents of I.O. Exhibit 3 were 

fraudulent, the record does not indicate that the ALJ’s admission of the exhibit was 

arbitrary, capricious, clearly erroneous, or based on inherently incredible evidence. 

Therefore, the ALJ did not err in admitting I.O. Exhibit 3 into evidence or in considering 

that evidence in reaching his decision. 

 

 IV. 

Respondent was the victim of racial discrimination because the ALJ Docketing Center 

engaged in a racist practice by signing letters addressed to him in blue ink.

Finally, Respondent contends that the ALJ Docketing Center discriminated 

against him because it signed letters sent to him in blue ink. 

I have thoroughly reviewed the record in this case and conclude that there is 

insufficient evidence to support Respondent’s allegation of racism. Respondent has not 

provided any evidence, other than his own assertion, to indicate that the use of blue ink 

by the ALJ Docketing Center is anything more than standard practice. I will presume 

normalcy in how Respondent’s case was handled and a mere assertion of racism, without 

supporting evidence, will not sustain an allegation. As indicated, I will reverse the 

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JONES NO. 2641 

9

decision of the ALJ only if his findings are arbitrary, capricious, clearly erroneous, or 

based on inherently incredible evidence. Appeal Decisions 2570 (HARRIS), aff’d NTSB 

Order No. EM- 182 (1996), 2390 (PURSER), 2363 (MANN), 2344 (KOHADJA), 2333 

(AYALA), 2581 (DRIGGERS), 2474 (CARMIENKE), 2607 (ARIES), and 2614 

(WALLENSTEIN). Since Respondent has not submitted any evidence to support his 

assertion, the record does not indicate that the ALJ’s decision was arbitrary, capricious, 

clearly erroneous, or based upon inherently incredible evidence. Therefore, I find 

Respondent’s final argument to be without merit. 

CONCLUSION

The findings of the ALJ had a legally sufficient basis. The ALJ’s decision was 

not arbitrary, capricious, or clearly erroneous. Competent, substantial, reliable, and 

probative evidence existed to support the findings and order of the ALJ. I find 

Respondent’s bases of appeal are without merit. 

 ORDER

 The Administrative Law Judge’s Decision and Order of July 12, 2002, is 

AFFIRMED. 

 //S// 

 

 T. J. BARRETT 

 Vice Admiral, U.S. Coast Guard 

 Vice Commandant 

 

Signed at Washington, D.C., this 31st day of August, 2003.