UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_________________________________ 

UNITED STATES COAST GUARD 

Complainant

vs. 

DEMETRIUS BATISTE 

Respondent

_________________________________ 

Docket Number 2018-0467 

Enforcement Activity No. 5760536

DECISION AND ORDER 

Issued: July 02, 2020 

By Administrative Law Judge: Honorable Dean C. Metry 

Appearances: 

LCDR Brett F. Belanger 

Sector Houston/Galveston 

& 

Jennifer A. Mehaffey, Esq. 

Suspension & Revocation National Center of Expertise 

For the Coast Guard 

Jeffery C. King, Esq. 

For the Respondent 
2 

I. PRELIMINARY STATEMENT 

The United States Coast Guard (Coast Guard) initiated this administrative action by filing 

a Complaint against Demetrius Batiste (Respondent), seeking to revoke his Merchant Mariner 

Credential (MMC). 46 U.S.C. § 7704. Specifically, the Complaint alleges Respondent is a user 

of or addicted to dangerous drugs as prohibited by 46 U.S.C. § 7704(b)1, and the underlying 

regulations codified at 46 C.F.

factual allegations allege Respondent tested positive for marijuana metabolites on or about July 

14, 2018, after submitting to an employer-ordered urine test. Respondent filed an Answer to the 

Complaint on February 20, 2019.2 Thereafter, the parties conducted discovery and motion 

practice. 

This matter proceeded to a hearing on October 16, 2019, in Dallas, Texas. During the 

hearing, Jennifer A. Mehaffey, Esq., and LCDR Brett F. Belanger appeared on behalf of the 

Coast Guard. Jeffery C. King, Esq., appeared on 

chief, the Coast Guard called five witnesses, and offered 19 exhibits, all of which were 

admitted.3 Respondent called two witnesses, including himself, and offered three exhibits, all 

were admitted. The undersigned also entered one exhibit identified as Court Exhibit I. 

 After the presentation of evidence and witnesses, the undersigned instructed the parties to 

file post-hearing briefs on the merits. Pursuant 

1 The National Defense Authorization Act of 2019 redesignated subsection (c) to subsection (b). The Coast

Complaint referred to the previous subsection, 7704(c). Throughout this Decision and Order, the undersigned will

reference the subsection as 46 U.S.C § 7704(b), as this was a technical change and the substance of the

subsections did not change.

2

However, the parties proceeded throughout this case as if Respondent had denied all the allegations. The Coast 

failure to respond to each individual paragraph of the 

Complaint as an admission, but did not do so during the entirety of the proceedings. 33 C.F.R. § 20.308. 

Answer as a general denial of all allegations.

3

and C. 
3 

 brief was due by February 18, 2020; however, 

the undersigned never receive

motion on February 19, 2020, (one 

day after the due date for his response brief) requesting additional time to file a post-hearing 

brief. Although the document was filed in the Marine Information for Safety and Law 

preexisting email problem. See Sua Sponte Order to Show Cause dated June 17, 2020. 

Accordingly, the undersigned issued a Sua Sponte Order to Show Cause, instructing Respondent 

to explain why his request for more time should be entertained at such a late date in the 

proceedings and to explain why he had not yet filed a brief. The June 17, 2020 Order gave 

Respondent until June 26, 2020, to provide an explanation. As of the date of this Decision, 

s June 17, 2020 Order. Accordingly, I find no 

good cause exists to permit Respondent to file a brief at this stage of the proceeding. 

 This matter is now ripe for decision. For the reasons stated below and in consideration of 

the record as a whole, I find the Coast Guard PROVED Respondent is a user of dangerous drugs 

REVOKED. 

II. FINDINGS OF FACT 

 The undersigned finds the following facts proved by preponderant evidence in the record. 

1. At all times relevant, Respondent held MMC #000454040. CGX 1. 

2. Sometime in September 2017, Harley Marine Services hired Respondent. Transcript II at 

75; CGX 5. 

3. Harley Marine Services is the parent company of Olympic Tug and Barge, Inc. Tr. 1 at 

20. 

4. relevant times, Harley Marine Services 

maintained a drug and alcohol policy (D&A pol ndividuals directly 

involved in any marine casualty, incident, or injury that is deemed serious by company 

ohol testing. Tr. I at 76; CGX 5. 
4 

5. Respondent electronically signed the D&A on September 1, 2017, which was in effect in 

July, 2018. Tr. I at 76; CGX 5. 

6. On July 12, 2018, Respondent reported for duty in Seattle, Washington, in preparation to 

commence work for Olympic Tug and Barge, Inc., on July 13, 2018. Tr. II at 90, 107. 

7. On July 13, 2018, Respondent injured his hip while moving heavy equipment (blower 

fans), weighing more than 100 pounds, on the Barge FIGHT FANCONI ANEMIA 

(FFA). CGX 2. 

8. On July 14, 2018, Respondent reported his injury

ultimately to Robert Wayne Sortor, the health safety environmental manager for Harley 

Marine Services and regional safety manager for Olympic Tug and Barge, Inc.. Id. 

9. included responding to injuries and making determinations 

regarding when chemical testing occurs. Tr. I at 21-25. 

10. On July 14, 2018, Mr. Sortor instructed Respondent to complete paperwork and to call 

him. CGX 4, 5; Tr. II at 117-118. 

11. During their phone conversation, Mr. Sortor instructed Respondent to go to a medical 

clinic and advised he would be submitting to drug screening after undergoing a physical. 

Id. 

12. Respondent ultimately went to U.S. HealthWorks, a clinic in Seattle, where he presented 

himself for a drug screening. Tr. II at 122-123. 

13. Jim Clark, a trained urine collector with 30 

urine specimen on July 14, 2018. Tr. I at 104; CGX 6, 8, 9. 

14. As part of the collection procedures, Respondent provided Mr. Clark with photo 

identification to confirm his identity. Tr. I at 104-110; CGX 8, 9. 

15. Mr. Clark then instructed Respondent to remove everything from his pockets, and 

Respondent complied. Tr. I at 104. 

16. Mr. Clark next selected a sealed cup in a sealed container, tore it open and handed the 

cup to Respondent. Id. 

17. Mr. Clark walked Respondent to the restroom, checked the toilet to confirm it was 

flushed and ensure nothing was in the restroom to adulterate the specimen. Id. 

18. Mr. Clark then instructed Respondent to provide at least 30 mL of urine. Id. at 105. 

19. Respondent voided in the specimen cup and provided it to Mr. Clark, who checked the lid 

on the specimen, making sure it was tightly closed. Id. at 105. 

20. The cup Respondent used provided instant initial results to a drug test and indicated 
5 

21. Mr. Clark then checked the temperature to ensure it was acceptable, sealed the cup with a 

seal reflecting specimen identification number AA04310405 identifying Respondent, and 

Respondent also initialed on the cup. Id. at 105-106, 119. 

22. Respondent and Mr. Clark signed an accompanying electronic form reflecting the same 

identification number AA04310405. Id. at 105. 

23. Mr. Clark printed the electronically signed forms, placed the lab copy into a bag with the 

specimen, and sealed the bag. Id. 

24. Mr. Clark then sent the specimen to a lab for testing at Clinical Reference Laboratory 

(CRL). Id. at 105; CGX 8, 11. 

25.

examination; the doctor did not make a spec

 and further advised that Respondent 

26. men arrived at CRL on July 17, 2018, a 

laboratory certified by the Department of Health and Human Services to meet the 

standards for Mandatory Guidelines for Federal Workplace Drug Testing Programs, 

federally certified under the National Laboratory Certification Program, and accredited 

under the College of American Pathologists. Tr. I at 130, 133; CGX 10. 

27. At all times relevant, CRL employed Dr. David J. Kuntz as the Executive Director of 

Analytical Toxicology, Co-Laboratory Director and Scientific Director. Tr. I at 129. 

28. Dr. Kuntz supervised the testing procedures and proce

specimen testing. Id. 

29. The form and transfer of the specimen to the laboratory was properly conducted, and 

there was no adulteration or tampering. Id. at 137-138. 

30. imen was an immunoassay test, a technique 

which looks for a specific presence of a certain group of drugs, including marijuana. Id. 

at 139. 

31. y revealed the presence of marijuana 

assay at 97 nanograms per milliliter. Id. at 150. 

32. st, the mass spectrometry, revealed the 

presence of marijuana, revealing 25 nanograms per milliliter of urine. Tr. I at 138-140; 

CGX 11. 

33. d, CRL documented the movement. Id. at 

153. 
6 

34. The instruments used to conduct the test were validated as accurately performing 

throughout the testing process. Id. at 151. 

35. The chemical testing procedures conducted in this case did not substantially differ from 

those protocols required by the Department of Transportation (DOT). Tr. I at 161. 

III. DISCUSSION 

A. Jurisdiction 

Under Coast Guard case law, jurisdiction is a question of fact and must be determined 

before the substantive issues of the case are decided. Appeal Decision 2620 COX (2001). Like 

e and decide jurisdictional questions that the 

Henderson ex rel. Henderson v. Shinseki, 562 U.S. 

428, 434 (2011). See also Appeal Decision 2656 (JORDAN) (2006). 

 When the Coast Guard charges use of a dangerous drug, jurisdiction exists so long as the 

respondent holds a credential at the time the Coast Guard initiates the proceedings. Appeal 

Decision 2712 (MORRIS) (2016); Appeal Decision 2721 (TOWNSEND) (2018). Here, the 

record shows Respondent held MMC #000454040 at all times relevant. CGX 1. Accordingly, 

the undersigned has jurisdiction to adjudicate this matter. 

B. Burden of Proof 

Pursuant to 46 U.S.C. § 7702(a), title 5 U.S.C. §§ 551-559 of the Administrative 

Procedure Act (APA) applies to Coast Guard suspension and revocation (S&R) proceedings. 

The APA places the burden of proof on the proponent of a rule or order, unless otherwise 

provided by statute. 5 U.S.C. § 556(d). In an S&R proceeding, the Coast Guard bears the 

burden of proof. 33 C.F.R. § 20.702(a). Respondent bears the burden to prove any affirmative 

defenses. Id. 

Under the APA, the fact-finder must consider

cited by a party and supported by and in accordance with the reliable, probative, and substantial 
7 

S.C. § 556(d). The standard of proof in 

(1981); see also Dir., Office of Workers' Comp. Programs v. Greenwich Collieries, 512 U.S. 267 

(1994). 

Here, the Coast Guard must prove by preponderant evidence that Respondent is the user 

of or addicted to a dangerous drug, as alleged in the Complaint. 46 U.S.C. § 7704(b). 

C. Use of or Addiction to a Dangerous Drug 

04(b), and 46 C.F.R. § 5.35. To prove this 

allegation, the Coast Guard may rely on vari

observations and/or chemical drug testing. In this case, the primary evidence comes in the form 

of a July 14, 2018 positive drug test. 

 There are two types of drug tests the Coast Guard relies on as evidence to prove a charge 

of use of, or addiction to the use of dangerous drugs; tests ordered pursuant to 46 C.F.R. Part 16 

(Part 16 drug tests), and those not ordered pursuant to 46 C.F.R. Part 16 (Non-Part 16 drug 

tests). Appeal Decisions 2668 (MERRILL) (2003); 2625 (ROBERTSON) (2002); 2545 

(JARDIN) (1992); 2704 (FRANKS) (2014). An employer conducts a test pursuant to Part 16 

only for one, or more, of the following reasons: 1. Pre-employment testing; 2. Periodic testing; 3. 

Random testing; 4. Testing resulting from serious marine incidents; and 5. Reasonable cause 

testing. See 46 C.F.R. §§ 16.210-16.250. Commandant Decisions on Appeal (CDOA) often 

refer to these Part 16 tests as e the employer has no discretion 

under these five circumstances, and must conduct the chemical testing as an agent of the 

government. Appeal Decision 2704 (FRANKS) (2014). 
8 

The Coast Guard may also rely on Non-Part 16 tests. Employers order these Non-Part 16 

tests for reasons other than the regulatory five reasons, usually a reason set forth in the 

ordered by the government, and therefore, the employer is not acting as a government agent. 

When the employer acts as a government agent, the regulations trigger extra measures to 

protect the mariner. In Part 16 tests, this extra protection includes the requirement for urine 

specimens to be tested pursuant to the DOT regulations in 49 C.F.R. Part 40. 46 C.F.R. § 

16.201. In Non-Part 16 tests, there is no requirement to comply with Part 40 because the 

employer is seemingly not acting as a government agent. However, if Part 16 testing 

requirements in Part 40 are not followed, the administrative law judge (ALJ) must ensure the 

urine specimen test results are reliable. 

 The key difference between the Coast Guard relying on Part 16 tests versus a Non-Part 

16 test is whether Respondent is presumed to be a user of dangerous drugs based solely on the 

positive drug test. 46 C.F.R. § 16.201(b). Under Section 16.201(b), the Coast Guard can obtain 

a presumption that the respondent is a user of dangerous drugs if and only if the Coast Guard 

proves the employer ordered the tests for one of the reasons in Part 16 (the why) and the test was 

conducted in accordance with Part 40 (the how). See Appeal Decision 2704 (FRANKS) (2014) 

s). On the other hand, the presumption never 

applies when the Coast Guard relies on an employer ordered Non-Part 16 test, or relies on 

testing/collection procedures not done in accordance with Part 40. 

Having outlined these differences, the undersigned turns to the case at bar. 
9 

1. Non-Part 16 Tests as Evidence of Drug Use 

 In this case, the Coast Guard relies on 

employer, to prove Respondent is the user of a dangerous drug. Specifically, the Coast Guard 

claims Harley Marine tested Respondent pur

not for any of the reasons in 46 C.F.R. § 16.210-16.250. Second, the Coast Guard recognized at 

the hearing the testing procedures in this case did not comply with Section 16.201 and Part 40. 

Tr. I at 12. Accordingly, the undersigned will review the evidence and testimony in this case 

consistent with similar CDOAs. 

2. Prima Facie Case of Drug Use Based on Non-Part 16 Test 

 When relying on an employer ordered Non-Part 16 test, the Coast Guard must prove: 1) 

Respondent participated in an employer ordered chemical drug test; 2) Respondent tested 

positive for dangerous drug(s) described in 46 C.F.R. § 16.105; 3) The chemical test conducted 

is a reliable test because it was conducted in accordance with procedures and safeguards 

demonstrating the reliability to the ALJ. I address each in turn, considering the evidence offered 

during the hearing. 

a. Respondent Participated in an Employer Ordered Non-Part 16 Drug Test 

Although the parties disagree on the exact date, they agree Respondent took a drug test in 

ions. Tr. II at 142. Respondent admits he reported his injury 

to a co-worker, made contact with Rob Sortor (a manager), and Mr. Sortor ordered Respondent 

to undergo drug screening. Tr. II at 118. During his conversation with Mr. Sortor, Respondent 

described his injury as a light strain, and Mr. Sortor did not believe the injury was a serious 

marine incident. Tr. I at 51; Tr. II at 117. Accordingly, at the time the employer ordered the test, 

Respondent gave no indication, and there was no objective evidence, that any of the events in 

sections 16.210-16.250 transpired. Therefore, the employer had no reason to conduct a 
10 

government-ordered test required by Part 16 in this case. Consequently, the only drug testing 

that Harley Marine could have ordered under these facts was an employer-ordered Non-Part 16 

test. 

rd shows Mr. Sortor had authority to order 

ions, which Respondent signed upon hire. Tr. I 

at 76; CGX 5. Specifically, Ha

directly involved in any marine casualty, incident, or injury that is deemed serious by company 

g. Tr. I at 76; CGX 5 (emphasis added). 

Although not defined in the company policy, th

es, but is not limited to, the following: (1) Any 

fall overboard, injury

also Appeal Decision 2445 (MATHISON) (1987) (noting the definition of marine casualty in 

S&R proceedings).4 Applying this definition here, the re

his hip while moving heavy equipment aboard the Barge FFA. Tr. II at 94, 97, 117. Therefore, 

the record shows Respondent was involved in a marine casualty within the ambit of Harley 

 involving a vessel. As a result, I find the 

D&A policy directly encompassed this factual scenario and the D&A aut

order to test. 

With regard to the actual collection of

Respondent submitted to drug screening on or about July 14, 2018. Jim Clark, a trained urine 

e. Tr. I at 100-102; CGX 8, 9. 

As part of the collection procedures, Respondent provided Mr. Clark with photo identification to 

4

reasonable cause testing under 33 C.F.R. § 95.035(a)(1). 
11 

confirm his identity. Tr. I at 104-110; CGX 8, 9. Mr. Clark then instructed Respondent to 

remove everything from his pockets, and Respondent complied. Tr. I at 104. Mr. Clark selected 

a sealed cup in a sealed container, tore it open and handed the cup to Respondent. Id. Mr. Clark 

walked Respondent to the restroom, checked the toilet to ensure it was flushed, and verified 

nothing was in the restroom to adulterate the specimen. Id. Mr. Clark then instructed 

Respondent to provide at least 30 mL of urine. Id. at 105. Respondent voided in the cup and 

provided it to Mr. Clark, who ensured he tightly closed the lid on the specimen cup. Id. at 105. 

Mr. Clark then checked the temperature to confirm it was acceptable and sealed the cup with a 

seal reflecting a specimen identification number AA04310405 identifying Respondent; 

Respondent also initialed on the cup. Id. at 105-106, 119. Respondent and Mr. Clark signed an 

accompanying electronic form reflecting the same identification number AA04310405. Id. at 

105. Mr. Clark printed the electronically signed forms, placed the lab copy into a bag with the 

specimen, and sealed the bag. Id. Mr. Clark then sent the specimen to a lab for testing at CRL. 

Id. at 105; CGX 8, 11. 

Based on this evidence, I find Respondent submitted to an employer ordered chemical 

drug test on or about July 14, 2018. 

b. Respondent Tested Positive for Dangerous Drugs

rrived at CRL, a laboratory certified by the 

Department of Health and Human Services to meet the standards for Mandatory Guidelines for 

Federal Workplace Drug Testing Programs, federally certified under the National Laboratory 

Certification Program, and accredited under the College of American Pathologists. Tr. I at 130, 

men underwent testing, CRL employed Dr. David 

J. Kuntz as the Executive Director of Analytical Toxicology, Co-Laboratory Director and 

Scientific Director. Tr. I at 129. Dr. Kuntz supervised the testing procedures and processes for 

Id. Dr. Kuntz confirmed the form and transfer 
12 

of the specimen to the laboratory from the clinic was proper and there was no evidence of 

adulteration or tampering. Id. at 137-138. 

As it concerns the actual testing of Re

first conducted an immunoassay test, a technique that looks for a certain group of drugs, 

test results under the immunoassay revealed the 

presence of marijuana assay at 97 nanograms per milliliter. Id. at 150. Under the DOT testing 

requirements, the initial test cut off is 50 ng/mL for marijuana metabolites; anything above 50 

ng/mL indicates the presence of marijuana. 49 C.F.R. § 40.87. Therefore, applying the DOT 

s first test indicated the presence of marijuana. 49 C.F.R. § 40.87. 

Dr. Kuntz testified CRL also subjected Responde cond test identified 

as the mass spectrometry. Tr. I at 151. The mass spectrometry is a confirmatory test and this test 

ce of marijuana metabolites at a level of 25 

nanograms per milliliter of urine. Tr. I at 138-140; CGX 11. Under the DOT standards in 49 

C.F.R. § 40.87, a confirmatory test is positive for marijuana if it is over 15 ng/mL. Accordingly, 

ng/mL, it is a positive result under 49 C.F.R. § 

40.87. 

ephanie Ridgeon, a Medical Review Officer 

(MRO) Assistant at Concentra,5lts and eventually made contact 

with Respondent. Tr. II at 12. Ms. Ridgeon testified Respondent did not explain why his test 

would have come back positive and only indicated Respondent admitted to taking Advil. Id. 

Based on this conversation, Ms. Ridgeon conc

marijuana. Tr. II at 16. 

5 The record contains references to U.S. HealthWorks. Concentra purchased U.S. HealthWorks at some time before 

the hearing in this case. See Tr. II at 8.
13 

and after reviewing the thoroughness of the 

documents supporting his sworn statements, th

specimen tested positive for marijuana metabolites at a concentration sufficient to support the 

conclusion Respondent tested positive for marijuana. Moreover, as recognized by Appeal 

Decision 2529 (WILLIAMS) (1991), marijuana is a dangerous drug. See 21 U.S.C. § 802(16). 

Therefore, I find Respondent tested positive for a dangerous drug. 

c. CRL Conducted the Test in Accordance with Procedures and Safeguards 

Showing the Test Was Reliable 

 

As explained by the Commandant, when the Coast Guard relies on a Non-Part 16 test not 

done in accordance with the procedures of 49 C.F.R. Part 40, the Coast Guard must prove the 

collection and testing was conducted with procedures and safeguards sufficient to convince the 

ALJ that the test is accurately showing the presence of a dangerous drug. Appeal Decision 2720 

ARGAST (2018); Appeal Decision 2704 (FRANKS) (2014). ARGAST makes clear one way the 

Coast Guard can show this reliability is to show the test at issue complies with Part 40. 

Here, the evidence shows the collection and testing procedures were very close with 49 

C.F.R. Part 40. In fact, the procedures appear to only deviate from Part 40 in three ways: first, 

the collector did not create a split sample as required by 49 C.F.R. § 40.71; second, the collector 

required only 30 mL of urine instead of the requisite 45 mL mandated by 49 C.F.R. § 40.63; and 

never reviewed by an MRO as required by 49 

C.F.R. § 40.121-40.169, but were reviewed by an MRO assistant. Tr. I at 116; Tr. II at 8, 14. In 

fact, Mr. Clark testified the collection procedures in this case were almost exactly the same with 

the exception of the split sample and the paperwork. Tr. I at 116. Similarly, Dr. Kuntz testified 

no difference, we follow the same identical protocol sting or tests done in 

accordance with 49 C.F.R. Part 40. Tr. I at 161. 
14 

Dr. Kuntz also vouched for the accuracy of the instruments used during testing and swore 

under oath the instruments in this case were validated as accurately performing throughout the 

process. Id. at 151. Dr. Kuntz al sample] was touched, even if it 

was moved from one side of the table to the next 

Respondent never argued, nor does anything in the record show, that any of these three 

deviations affected the validity of the test results. 

With this evidence in mind, the undersigned concludes the collection and testing 

procedures in this case demonstrate the accuracy of the test results showing presence of 

marijuana metabolite is reliable. 

D.

 Although Respondent did not file a post-hearing brief, the undersigned acknowledges his 

counsel and his testimony advanced several arguments that merit discussion. Specifically, 

Respondent asserts: 1. he never used marijuana; 2. the positive test results might be due to his 

use of CBD cream; 3. the order to undergo drug screening violates the fourth amendment and 

circumvents Part 16; and 4. the order to undergo drug screening somehow included racial 

animus. I reject each in turn. 

1. ver Used Marijuana Is Not Credible 

 the positive urinalysis; he vehemently 

denies ever using marijuana. Tr. II at 47. Therefore, the undersigned must consider 

 whether to believe the test results, or 

discretion when determining witness 

nction of the ALJ, as fact-finder, to evaluate the credibility of 

witnesses and to resolve incons Appeal Decision 2616 (BYRNES) 

(2000) (citing Appeal Decision 2554 (DEVONISH). A review of CDOAs shows credibility 
15 

determinations turn primarily on the demeanor of the witness, as observed by the ALJ at hearing. 

Appeal Decision 2689 (SHINE) (2010); Appeal Decision 2674 (MILLS) (2008). The ALJ may 

also consider other factors such as prior statements of the witness, the consistency of the 

testimony with other evidence, and the interest of the witness in the outcome of the proceeding. 

USCG v. Kochis, 2016 WL 9331445 (2016 ALJ D&O). 

a.

rration of events is inconsistent with other evidence 

and testimony in the record. First, the 2018 calendar conflicts with Resp

the precise days and dates surrounding the actual injury and report to management. Specifically, 

Respondent recalled reporting to

happening on his first actual work day on July 13, 2018, which would have been a Wednesday. 

Tr. II at 107, 111. However, a review of the calendar in July 2018, shows July 12, and July 13, 

2018 were on a Thursday and Friday, not Tuesday and Wednesday.6 The undersigned fully 

acknowledges that any witness can make such a mistake concerning exact dates and/or days of 

the week; alone, this minor inconsistency would 

serious doubt. Indeed, Respondent may have simply recalled starting work on a Tuesday and 

being injured on a Wednesday (the first actual work day), and simply forgot the calendar date 

correlating to that day of the week. But as explained below, the inconsistencies do not stop 

there. 

A review of CGX 2 shows Respondent filled out a form reporting the incident to 

the form, Respondent indicated the injury 

6 The undersigned takes official notice of the 2018 calendar. See 33 C.F.R. § 20.806; Fed. R. Evid. 201 (court may 

take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably 

be questioned); see also Horowitz v. GC Services Ltd. Partnership, 2015 WL 1959377 at *3 (S.D. Cal. Apr. 28, 

 not subject to reasonable dispute because the accuracy of a calendar date 

required by the rule, all parties shall have 5 days to rebut the facts 

cial notice of the 2018 calendar. 
16 

happened on July 13, 2018, which, being the day before, would have been Friday.7 Thus, CGX 2 

alone indicates Respondent reported the injury one day after it happened. But that is not what 

Respondent swore to at the hearing. At the hearing, Respondent

his attempt from Wednesday-Saturday to relieve his pain and suffering, e.g., calling his brother 

for help, using exercise and medication, resting on two different vessels, and trying alternative 

medical treatment. Tr. II at 107-117.8

 Therefore, the undersigned concludes one of two 

scenarios must have happened: 1. None, or few of the events Respondent described in his 

testimony at hearing actually transpired; or 2. Respondent was untruthful when he informed 

management that his injury happened one day prior to the report. Either way, given these 

notable inconsistencies, I find this factor militates against Responde

b. The Interest of the Witness in the Outcome of the Proceeding 

ly high and any motive to be dishonest about 

drug use is self-evident. Should the undersigned believe the test results, and disbelieve 

never ingested marijuana, the undersigned would have no option 

but to revoke his MMC. That does not mean that every mariner posed with the same situation 

should be disbelieved. However, in light of the other evidence in this case, and the 

inconsistencies mentioned above, the undersigned concludes this factor cuts against believing 

reliable test as described above. 

c.

meanor also calls his credibility into 

stimony was theatrical at times, smacked as 

misleading, and did not possess the value of honesty and forthrightness. When considering 

7

8

.
17 

ussed above, I am left with the firm belief 

Respondent was simply not completely truthful about his use of dangerous drugs in this case. 

Ultimately, after considering the three factors above, the undersigned concludes 

Respondent was not credible and therefore his testimony that he did not ingest marijuana is 

unconvincing. 

2.

During the hearing, Respondent made some references to use of CBD cream when 

referencing his attempts to treat his injury. Tr. II at 136. Respondent

totality of the circumstances. Tr. II at 179. 

undersigned to conclude Respondent innocently 

used CBD cream with marijuana properties, and that is the cause of the positive urinalysis. 

 First, as there is no authority that simple use of CBD cream, alone, would excuse any 

positive drug test; I reject that argument outright. The innocent ingestion theory, however, is 

somewhat viable. Had Respondent proved he unknowingly ingested or used CBD cream without 

actual or constructive knowledge that the cream might have marijuana properties, the 

undersigned could consider the defense when determining if the positive drug tests prove he is a 

user of a dangerous drug. However, Respondent raised this issue for the first time during the 

not present any other evidence besides his fleeting statements to 

support the innocent ingestion theory. The federal courts would conclude Respondent waived 

the affirmative defense by not pleading it in his Answer, which would allow the Coast Guard to 

have notice and opportunity to conduct discovery. Day v. McDonough, 547 U.S. 198, 209-11 

(2006). However, even if Respondent did not waive the defense by failing to raise it in the 

Answer, the undersigned finds he did not offer any convincing evidence to support the theory, 

and his testimony alone was simply unconvincing. Therefore, Respondent failed to carry the 
18 

burden to prove an affirmative defense required under 33 C.F.R. § 20.702, and I find his 

innocent ingestion theory NOT PROVED. 

3. Screening Does Not Violate the Fourth 

Amendment and there Is No Evidence Harley Marine Was Attempting to 

Circumvent Part 16 

constitutional rights because, 

circumventing Part 16 by ordering a Non-Part 16 test without cause. 

, the undersigned notes CDOAs address the 

 address constitutional arguments. As explained in Appeal 

Decision 2556 (LINTON) (1994): 

These proceedings are governed by statute and regulations and are 

intended to maintain standards for competence and conduct essential to the 

promotion of safety at sea. Title 46 U.S.C. § 7701; 46 C.F.R. § 5.5. 

Those regulations specifically detail the authority of the Administrative 

Law Judge at the hearing level and the Commandant of the Coast Guard at 

the appellate level. Neither the Administrative Law Judge nor I, as the 

Commandant, are vested with the authority to decide constitutional issues; 

that is exclusively within the purview of the federal courts. See 4 Davis, 

Administrative Law Treatise § 26.6 (1983); Appeal Decisions Nos. 2433 

(BARNABY) and 2202 (VAIL). 

Thus, strictly speaking, LINTON prohibits the undersigned from ruling on these constitutional 

issues. 

However, in FRANKS, the Commandant found it necessary to discuss the Fourth 

Amendment as it concerns chemical drug testing under Part 16. There, the Commandant 

explained: 

Clearly, the procedures in 46 C.F.R. Part 16 were established not only to 

protect public safety interests, but also to ensure that the constitutional 

rights of the mariner were safeguarded throughout the drug testing 

process. By expressly mandating limited, specific types of drug tests -- 

pre-employment, periodic, random, serious marine incident and reasonable 

cause drug tests -- the drafters of the regulations ensured that 

constitutionally protected privacy interests of the mariner were balanced 

with the overriding need to ensure a drug-free and safe workplace. The 
19 

drafters recognized that the Fourth Amendment applies and that testing 

undertaken by private employers to comply with Federal regulatory 

requirements constitutes Government action. Hence, when the employer 

tests to comply with 46 C.F.R. Part 16, the employer acts as an instrument 

or agent of the Government. Cf. Skinner v. Railway Labor Executives' 

Association, 489 U.S. 602, 611-615 (1989). 

Appeal Decision 2704 (FRANKS) (2014). In contrast, the Commandant concluded, when an 

employer is not compelled to test under Part 16, and conducts a Non-Part 16 test under an 

9

 But as 

discussed below, FRANKS does warn the ALJ should consider whether the Coast Guard and/or 

the employer attempted to circumvent Part 16. 

 In FRANKS, the Commandant made clear that a marine employer could test for reasons 

not set forth in Part 16. However, without much discussion, FRANKS issued the following 

r-required test independent of Part 16 should 

be subjected to close scrutiny to ensure that Part 16 has not been 

Given that FRANKS concerned a Part 16 test, the undersigned considers the caveat obiter dicta 

and not binding on the undersigned. Nonetheless, the undersigned interprets the caveat to mean 

 the reasons set forth in 46 C.F.R. §§ 16.210-

Guard brings an S&R case based on an employer based test, using procedures not complying 

with 49 C.F.R. Part 40, the ALJ should consider whether the employer should have tested for one 

of the reasons in Part 16, and conducted a test compliant with 49 C.F.R. Part 40. 

 Applying this interpretation here, the undersigned concludes Harley Marine had no 

objective evidence that a Part 16 event transpired when Respondent reported the injury to his hip 

9 The undersigned is uncertain whether FRANKS is completely accurate on this point. As explained in Skinner 

that the search is a private on y, neither party addressed this issue in this 

case, therefore the undersigned declines to analyze whether FRANKS runs awry 

Skinner. That discussion must wait for another day. 
20 

in this case. As discussed above, Respondent did not fully disclose his injury to his employer, he 

this description, Harley Marine 

could conceivably conclude this injury was not 

triggered a Part 16 test. Indeed, Mr. Sortor testified he knew this was not a serious marine 

I at 51. Accordingly, the undersigned concludes 

Harley Marine did not circumvent Part 16 when it ordered Respondent to undergo a Non-Part 16 

test because he had no reason to believe an event requiring testing set forth in 46 C.F.R. §§ 

16.210-16.250 had transpired. 

4. Testing Was Not Racially Motivated 

 Throughout much of his testimony, Respondent made specific references to racial 

comments he has endured during his career as a mariner. Tr. II at 63-70. And although not 

directly present in a post-hearing brief or otherwise, the undersigned pauses to note that no 

evidence in this record supports even the slightest conclusion th

chemical drug testing resulted from racially motivated prejudices or animus. Indeed, if the 

undersigned suspected that such motives existed in this case, the undersigned would have 

conducted intensive questioning 

the possibility. It goes without saying that if a marine employer uses race based motives to target 

an employee and subject him to chemical drug screening, such a test could never form the basis 

of an S&R proceeding. With this principle in mind, the undersigned reviewed all of the evidence 

and testimony here and concludes while Respondent has endured racial animosity throughout his 

career, no racial animus or racial motive played any role in Mr. Sortor ordering Respondent to 

undergo chemical testing in this case. Instead, I find Mr. Sortor ordered the testing consistent 

with company policy. 
21 

IV. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. At all relevant times, Respondent held MMC #000454040 and the undersigned has 

jurisdiction to adjudicate this matter. 

2. On July 14, 2018, Respondent participated in an employer ordered chemical drug test 

pursuant to company policy; 

3. ing procedures protecting the chain of 

custody, ensuring association with Respondent, and ensuring no adulteration of the 

specimen; 

4. ijuana, a dangerous drug described in 46 

C.F.R. § 16.105; 

5. The chemical test conducted is a reliable test because it was conducted in accordance 

with procedures and safeguards demonstrating the reliability to the ALJ; 

6.

7. The Coast Guard proved by preponderant evidence Respondent is a user of or addicted to 

a dangerous drug as described in 46 U.S.C. § 7704. 

V. SANCTION 

When the Coast Guard proves a mariner has used or is addicted to dangerous drugs, 

revocation of the MMC is the only imposable sanction unless cure is proven. See 46 U.S.C. § 

7704(b); 46 C.F.R. § 5.569; Appeal Decision 2535 (SWEENEY) (1992). Respondent made no 

showing of cure in this case, and therefore the only appropriate sanction is REVOCATION. 

VI. ORDER 

IT IS HEREBY ORDERED, Respondent's Merchant Mariner Credential Number 

000454040, and all other valid licenses, documents, and endorsements issued by the Coast Guard 

to Respondent are REVOKED. 

IT IS FURTHER ORDERED, upon service of this Order, Respondent shall 

immediately surrender his credentials and all other valid licenses, documents, and endorsements 
22 

issued by the Coast Guard to the United States Coast Guard, LT Brett F. Belanger, Sector 

Houston/Galveston 13411 Hillard Street, Houston, TX 77034. 

IT IS FURTHER ORDERED, because the undersigned takes official notice of the 2018 

calendar, all parties shall have 5 days from the date of this order to rebut the facts established by 

the 2018 calendar. 33 C.F.R. § 20.806. 

PLEASE TAKE NOTICE, pursuant to 33 C.F.R. § 20.904 and/or 46 C.F.R. § 5.901, 

Respondent may file a motion to reopen this matter. The filing of a motion to reopen the record 

of a proceeding does not affect any period for appeals. 

PLEASE TAKE FURTHER NOTICE, service of this Decision on the parties and/or 

parties' representative(s) serves as notice of appeal rights set forth in 33 C.F.R. §§ 20.1001 - 

20.1004. 

__________________________________________________ 

Dean C. Metry 

U.S. Coast Guard Administrative Law Judge

Date: 

July 02, 2020