UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

U.S. COAST GUARD 

UNITED STATES COAST GUARD, ) 

Complainant ) 

1 

YS. ) Docket Number: 99-0434 

) PA Number: 9900251 1 

JOHN WALTON ) 

Respondent ) 

BEFORE: THOMAS E. MCELLIGOTT 

Administrative Law Judge 

DECISION & ORDER 

I 

PRELIMINARY STATEMENT 

This adversary hearing was initiated by the U.S. Coast Guard in the performance 

of its missions to protect lives and property at sea, enforce national laws and treaties, 

preserve marine natural resources, or promote national security interests. 

The hearing was brought pursuant to the legal authority contained in 46 U.S. 

Code Chapter 77, including 46 U.S. Code 7701 through 7705; the U.S. Administrative 

Procedure Act. 5 U.S. Code 55 1 thrbGgh 559; 46 CFR Parts 4,5 and 16, as amended; 33 

CFR Part 95; and 49 CFR Part 40. 

At the drafting, signing and service of the document known as the "Complaint" 

upon the Rcspondent, the U.S. Coast Guard was represented by lnvcstigating Officer 

Paul W. Turner, Lieutenant (Junior Grade), at the time stationed at the U.S. Coast Guard I 

Marine Safety Office Houston-Galveston, 9640 Clinton Drive, Houston, Texas 77029, 

and telephone number (7 13) 67 1-5196. 
At the hearings before the undersibmed Administrative Law Judge, the U.S. Coast 

Guard was represcnted by Investigating Officers Paul W. Turner, Lieutenant (Junior 

Grade), and Kimberly S. Wheatley. Ensign. The Respondent had been advised of his 

rights by the Investigating Officers at the time they served the "Complaint" upon him and 

by the Judge at the commencement of the hearing. The Respondent chose to represent 

himselfpro se, although he had an adult friend with him at the hearing. Respondent, at 

the time of the hearing, resided a~-~p~us he had a 

mailing address 04-espondent7s U.S. Coast - 

Guard issued U.S. Merchant Mariner's License Number ind his U.S. Coast 

Guard issued Merchant Mariner's Document Number i~espondent's full

name is John P. Walton and documents show his date of birth aqThus, the Respondent is now 39 years of age, a mature adult. 

The undersigned Judge received this case on January 02,2000. The Judge sent 

out a "Notice of Hearing" dated January 03,2000, served upon a11 parties. The 

"Complaint" was served upon the Respondent by certified mail on December 08, 1999, 

The "Complaint" alleged Misconduct and its jurisdictional allegations alleged the 

following: _ . - + 

1, - Respondent has the following address of record(-] 

2. Respondent is the holder of a U.S. Coast Guard issued License ~umbeand U.S. Merchant Mariner's Document Numbe3. Respondcnt acted under the authority of said License and U.S. Merchant 

Mariner's Document as defined by 46 CFR 5.57, on October 12,1999, by serving 

as pilot of the WV UNCLE NU. 
The jurisdiction of these above jurisdictional allegations was admitted by the 

Respondent in his "Answer." The factual allegations were denied. The factual 

allegations are as follows: 

On October 12, 1999, aboard the MN UNCLE NU, the Respondent, wrongfully 

refused to provide a specimen for a required chemical test ordered by his 

employer, Horace Savoie Towing, Inc., in violation of company policy. 

The Respondent also affirmatively alleged as a defense that "Never requested to 

provide a specimen." 

There were three witnesses who were called to testify by the Investigating - 

Officers under oath: Ms. Dana Henkins, Medical Records Assistant for Hollywood 

Marine, Inc, of 55 Waugh Drive, Port of Houston, Texas; Kenneth Scott, Master of the 

MN UNCLE NU; and the Tankerman on the MN UNCLE NU, Braddock McNeil. All 

three witnesses testified credibly under oath. 

Of the lnvestigating Officer's documentary exhibits, which were offered into 

evidence, at lcast four were admitted into evidence by the Administrative Law Judge 

(Appendix A, List of Witnesses and Exhibits). 

11 

FINDINGS OF FACI' BASED UPON THE ENTIRE AEARIXG 

-- RECORD CONSIDERED AS A WHOLE 

I. On or before Tuesday, October 12, 1999, the MN UNCLE NU, which was 

chartered to Hollywood Marine, Inc., was chosen by Dana Henkins, Medical Records 

Assistant, in her computer to have her crewmembers submit a urine sample for a random 

drug screen test. At the time, the captioned Respondent, John P. Walton, was serving 

under thc authority of his License as the vessel's pilot or relief captain. The Master of 

the vessel, Kenneth Scott, requested the Respondent to provide a urine sample for the I 
company and he did this in the presence of and within the hearing of Tankerman 

Braddock McNeil of the MN UNCLE NU. Respondent did not provide a urine sample 

on that day to the utine specimen collector for Hollywood Marine, Inc. and his other 

marine enlployer mentioned in the "Complaint," Horace Savoie Towing, Inc. 

2. lt was testitied, too, by Braddock McNeil, the Tankerman, that when Captain 

Scott asked Respondent for the urine sample for the drug lest: the Respondent replied 

"he would not be able to pass such a test." Then Braddock McNeil, the Tankerman, said 

to him "but then they'll take your license." Respondent replied "that's what they have 

lawyers for." 

3. The testimony of the witnesses and the documentary evidence clearly 

established and proved that the Respondent had knowledge of and received the orders 

and request to take the dmg screen test by providing a urine specimen for dmg testing 

purposes. Later, a notification letter firom Hollywood Marine lne., (the charter of the 

MN UNCLE NU) was sent to the U.S. Coast Guard Marine Safety Office for the ports 

of Houston and Galveston region indicating Respondent's reksal to submit a urine 

sample for drug testing purposes. Investigating Officer Paul W. Turner drafted and 

served a "Complaint" on the Respontjent. Respondent was advised of his rights at the 

time he was served with the "Complaint" and at the commencement of the heating. 

4. The Respondent's refusal to submit to a random drug screen test conducted by 

his marine employer has been clearly shown by a preponderance of the reliable, 

probative and substantial evidence. 
5. The three credible testimonies by the witnesses under oath and the 

documented exhibits established by a preponderance of the evidence the charge of 

Misconduct to be sound 

111 

ULTIMATE FINDINGS 

I. Based upon the entire record considered as a whole, the said "Complaint" in 

this matter and its supporting allegations of Misconduct have been found proved by a 

preponderance of the reliable, credible and substantial evidence as alleged in the 

"Complaint" signed by U.S. Coast Guard Investigating Officer Paul W. Turner, 

Lieutenant (Junior Grade), of the Marine Safety Office for the ports and region of 

Houston-Galveston. Texas 

IV 

CONCLUSIONS OF LAW 

1. The U.S. Coast Guard and the Administrative Law Judge have jurisdiction 

over the subject matter of this hearing under the provisions of 46 U.S. Code Chapter 77, 

including 46 U.S. Code 7701 to 7705: the U.S. Administrative Procedure Act, 5 U.S. 

Code 551 through 559; 46 CFR Parts 4, 5, and 16, as amended; and 33 CFR Part 95. * 

-. 

2. The Complaint alleging Misconduct for failing to provide a urine sample for 

drug testing purposes is found proved. 

v 

OPINION 

The above Preliminary Statement: Findings of Fact and Conclusions are 

incorporated herein as if set forth in kll. 
The "Complaint" in this matter alleged Misconduct. Misconduct is defined in 46 

CFR Part 5 as follows: 

Misconduct is human behavior which violates some formal, duly established rule. 

Such rules are found in, among other places, statutes, regulations, the common 

law, the general maritime law, a ship's regulation or order, or shipping articles 

and similar sources. It is an act which is forbidden or a failure to do that which is 

required. 

The captioned Respondent was charged with refusal to submit to a drug test as 

directed by his marine employer. The gravamen of the offense is Respondent's conduct 

in refusing to obey the lawful order of the shipping company, his marine employer, as - 

conveyed to him by his Supervising Captain, the Master of the vessel, Captain Kenneth 

Scott. 

When Respondent refused on October 12, 1999 to submit to a random drug test 

by rehsing to submit a urine sample when requested to do so by his marine employer, he 

was in violation of 46 U.S. Code Chapter 77 and 33 CFR Part 20, as well as 46 CFR Parts 

4,s and 16, as amended. 

Conference sworn telephonic testimony has been upheld on appeal. 46 CFR 

5.535(f) Appeal Decision 2538 (SMALLWOOD); 2503 (MOULDS); 2492 (RATH); and 

2476 (BLAKE), affd sub.nom., - Comnandant v. Blake, NTSB Order EM-156 (1989); 

aff d sub.nom. Blake v. U.S. Department of Transportation (DOT) and NTSB, No. 90- 

70013 (9Ih Cir. 1991). 

Drug testing of employee's urine samples has been upheld by the U.S. Court of 

Appeals for the Ninth Circuit in Bluestein v. Skinner (U.S. DOT Secretary and U.S. 

FAA, 908 F.2d 45 1 (9"' Cir. 1990); Cert, den. by U.S. Supreme Court at 1 12 L.Ed 2nd 

1042 (1991). Additional U.S. Supreme Court Decisions with similar rulings and 
authoriCy are National Treasury Employees Union v. Van Raab, 109 S.Ct. 1384 (1989); 

Skinner (US. DOT Secretary) v. Railway Labor Executives Association, 109 S.Ct. 1402 

(1989). 

Other decisions upholding drug testing of certain employees include American 

Federation of Govenunent Employees v. SkinnerlU.S. DOT), 885 F.2d 884 (D.C. Cir. 

1989); National Federation of Federal Employees v. Cheney. 884 F.2d 603 (D.C. Cir. 

1989); Thomson v. Marsh, 884 F.2d 113 (4" Cir. 1989); and Harmon v. 'I'hombur& 878 

F2d 184,487.438 (D.C. Cir. 1989). - 

The Respondent is advised of the right to appeal in accordance with 33 CFR Part 

20, the relcvant part of which is enclosed herein. 

VI 

CONSIDERATION OF A PROPER ORDER 

The captioned Respondent did violate 46 CFR Parts 4,5 and 16 and Volume 56 

Federal Register 31030, regarding drug testing by Respondent's refusal to provide a urine 

specimen that could be tested for drugs on the date in question after it was formally and 

seriously requested from Respondent by his marine employer and his supervisor, the 

captain of the hevessel. 

-. 

The Commandant has held on appeal that a mariner's refusal to submit to a 

chemical test for dangerous drugs raise serious doubts of the individual's ability to 

perform safely and competently in the future. Commandant's Appeal Decision Number 

2578 (CALIAHAN), page 7, (1996). 

The captioned Respondent was employed as a relief captain or pilot aboard a 

towing vessel. The taking of drugs could endanger the lives of himself and his crew and 

those of other vessels in and on the Houston Ship Channel and other major ports of the 
United States. Therefore, the Respondent's actiolis cannot be tolerated under the 

circu~nstances. 

In light of the facts and the applicable law, the following Order will he entered in 

this case. 

VII 

ORDER 

IT IS ORDERED that the captioned Respondent's U.S. Coast Guard License 

~umbemssued to John P. Walton and all other U.S. Coast Guard licenses, 

documents, certificates and authorizations issued to him and still valid are hereby 

REVOKED. If the Coast Guard is not already in possession of the Respondent's above 

referenced License, Respondent is hereby ordered and directed to deposit by mail the said 

License and Documents with the Senior Investigating Officer of the U.S. Coast Guard 

Marine Safety Office, 9640 Clinton Drive, P.O. Box 446, Galena Park, Texas 77547- 

0446, and fax number (713) 67 1-5 177. This includes all originals and/or duplicates of 

these licenses and documents. 

The procedures following are known as the U.S. Coast Guard's "Administrative 

Clemency Program." These may require three or more years. Procedures are provided - 

-. - by which a person, or Respondent, whose U.S. Merchant Mariner's license and/or 

document has been revoked and surrendered, may apply to any Commanding Officer of a 

Marinc Safety Office of the U.S. Coast Guard, after an applicable waiting period, for the 

issuance of a new license or document. These mles and conditions are found in 46 CFR 

Subpart L (46 CFR sections 5.901,5.903 and 5.905) entitled "Issuance of New Licenses, 

Certificates or Documents Afrer Revocation or Surrender" and in the Coast Guard Marine 
Safety Manual for application for cle~nency by the U.S. Coast Guard's Administrative 

Clemency Review Board. 

____-" 

Administrative La 

Dated: c&(L JbvP 

Hoc~ston, 'fexas 

Copy: 

MSO Houston-Galveston, Attn: LTJG Turner, I0 

John Walton, Respondent 

CCCDS(m) 

ALJ Docketing Center, Baltimore