UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

UNITED STATES OF AMERICA

UNITED STATES COAST GUARD

vs.

MERCHANT MARINER LICENSE

&

MERCHANT MARINER DOCUMENT

Issued to: MICHAEL J. THOMAS

DECISION OF THE

VICE COMMANDANT

ON APPEAL

NO·2690

This appeal is taken in accordance with 46 U.S.C. § 7701 et seq., 46 C.F.R.

Part 5, and the procedures set forth in 33 C.F.R. Part 20.

By a Decision and Order (hereinafter "0&0") dated October 2,2009, Coast

Guard Administrative Law Judge (hereinafter "AU") Bruce T. Smith revoked the

Merchant Mariner Credentials ofMr. Michael J. Thomas (hereinafter "Respondent")

upon finding the Coast Guard's Complaint alleging misconduct proved. The Complaint

alleged that Respondent committed an act ofmisconduct by refusing to submit to a postcasualty drug test ordered by Respondent's marine employer.

FACTS AND PROCEDURAL HISTORY

At all times relevant herein, Respondent was the holder ofthe Coast Guard issued

Merchant Mariner Credentials at issue in this proceeding. [D&O at 5, 32]

On December 8-9,2008, Respondent was employed as a contract trip pilot by the

TUG MISS SALLY, LLC and/or Breathwit Marine Contractors, LTD (hereinafter

"Breathwit"). [D&O at 5,32-33] At approximately 5:53 p.m., on December 8,2008, the

MIV MISS SALLY, while under the operation and control ofRespondent, collided, head-
THOMAS No. 269 a

on, with the barge HORIZON 3038 near mile marker 343 on the Gulflntracoastal

Waterway. [D&O at 3,5,6] The collision, which resulted in damage to the M/V MISS

SALLY in excess of $120,000.00, was a Serious Marine Incident (hereinafter "SMI") as

defined by 46 C.F.R. § 4.03-2. [D&O at 3,5,33] During the collision, Respondent was

thrown onto the vessel's console where he impacted with the vessel's controls. [D&O at

6; Transcript ofthe Proceedings (hereinafter "Tr.") Volume (hereinafter "Vol.") II at 50-

51,53] This resulted in bodily injury to Respondent. [Id.]

After the collision, the M/V MISS SALLY was towed to the Breathwit Marine

Contractors, Ltd. Shipyard in San Leon, Texas. [D&O at 6; Tr. Vol. II at 62-64] Mr.

Greg Berry, Personnel Manager for Breathwit, met the MN SALLY at the shipyard at

approximately 1:30 a.m. on December 9,2008. [D&O at 6; Tr. Vol. I at 26; Tr. Vol. II at

64] Mr. Berry informed Respondent that he would have to submit to a post-casualty

urinalysis test later that morning; Respondent agreed to submit to the test. [D&O at 6; Tr.

Vol. I at 28; Tr. Vol. II at 65]

Mr. Berry returned to the M/V MISS SALLY later that morning at 7:30 a.m.

[D&O at 7] At that time, he and Respondent had a further conversation regarding the

need for Respondent to submit to post-casualty drug testing. [D&O at 7; Tr. Vol. I at 32-

37] During this conversation, Respondent resisted requests to immediately submit to

post-casualty drug testing. [Id.] Instead ofsubmitting to the requested and mandated

post-casualty drug test, Respondent informed Mr. Berry that he wanted to go to a hotel

and take a shower, that he wanted to see a doctor, and that he needed to remove his

personal belongings from the MN MISS SALLY. [D&O at 7; Tr. Vol. I at 32-37,188;

Tr. Vol. II at 67-70] During the conversation, Respondent ultimately refused to present

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THOMAS No. 2690

himself at the location chosen for submission of a urinalysis sample for post-casualty

drug testing. [D&O at 8; Tr. Vol. I at 32-37]

After the 7:30 a.m. conversation between Respondent and Mr. Berry, Respondent

was approached by MSSE2 Lindell Gentry, III, a United States Coast Guard Chief

Warrant Officer 2, while he was still at the Breathwit Marine Shipyard at approximately

9:00 a.m. [D&O at 8; Tr. Vol. I at 40-41, 185-193] CW02 Gentry urged Respondent to

comply with Mr. Berry's order and go to Calder Urgent Care Clinic, a League City,

Texas medical center that is capable of providing emergency medical services while

simultaneously performing drug testing services, for testing. [D&O at 8-9; Tr. Vol. I at

34-35, 185-193] During this conversation, Respondent reiterated his refusal to submit to

a post-casualty drug test at that time. [D&O at 8; Tr. Vol. I at 189-190] Sometime after

7:30 a.m., Respondent drove his personal vehicle to a local motel where he met his

estranged wife who' took several photographs of his injuries with her cellular telephone.

[D&O at 8; Respondent's Exhibit G; Tr. Vol. II at 51, 74]

On the afternoon ofDecember 9,2008, Respondent drove his personal vehicle

from his motel to a service station in Kemah, Texas. [D&O at 8; Tr. Vol. II at 75] Mr.

John Neuman, a driver and employee ofBreathwit, met Respondent at the service station

and subsequently followed him to Calder Urgent Care. [Id.] Prior to departing the

service station, Mr. Neuman observed Respondent exit his vehicle and walk into the

service station without any assistance. [D&O at 8; Tr. Vol. I at 161] Mr. Neuman

followed Respondent to Calder Urgent Care Center and when the two arrived there,

Respondent asserted that he was in too much pain to exit his vehicle. [D&O at 9; Tr.

Vol. I at 162-163] Shortly thereafter, Respondent refused an offer by Calder Urgent Care

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THOMAS No. 2690

personnel to assist him into the medical center by wheelchair. [D&O at 9; Tr. Vol. I at

164-165] Thereafter, Respondent, who was still being followed by Mr. Neuman, drove

approximately 20 minutes to Christus St. John Hospital in Nassau Bay, Texas. [D&O at

9; Tr. Vol. I at 166-167] Upon arriving at the Christus St. John Hospital at approximately

5:38 p.m., Respondent exited his vehicle and walked, unassisted, approximately 25 to 30

yards into the emergency room. [0&0 at 9; Tr. Vol. I at 179-180] Respondent remained

at Christus St. John Hospital, accompanied by Mr. Neuman, unti111 :37 p.m. on

December 9, 2008. [D&O at 9; Tr. Vol. I at 168-180; Respondent's Exhibit C] During

Respondent's 6 hour stay at the hospital, no one demanded or forced Respondent to

provide a urine sample for post-casualty drug testing and no sample was taken from

Respondent during his hospital stay. [D&O at 9; Tr. Vol. I at 176; Respondent's Exhibit

C] Respondent did not provide a urine sample for post-casualty drug testing on

December 8-9, 2008. [D&O at 10; Tr. Vol. I at 17-237]

The Coast Guard filed its Complaint against Respondent's Merchant Mariner

Credentials with the Coast Guard ALJ Docketing Center on December 23,2008. [D&O

at 3] Respondent filed an Answer to the Complaint, generally denying all jurisdictional

and factual allegations, on January 8,2009. [Id.]

The hearing in the matter commenced on July 21,2009, in Houston, Texas.

During the hearing, the Coast Guard offered the testimony offive witnesses and entered

six exhibits into the record. Respondent testified on his own behalf, offered the

testimony of one other witness, and entered thirteen exhibits into the record. The ALJ

called one witness and ordered the production ofthree exhibits into the record on his own

motion. The hearing was reconvened telephonically on August 21, 2009, to hear the

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THOMAS N°"2690

testimony of one additional witness. At the close ofthe AU!:,TUst 21, 2009, hearing, the

ALJ infonned the parties that they would have the opportunity to submit closing

arguments and post-hearing briefs in writing. Both parties submitted written posthearing briefs and arguments and the record was closed. [D&O at 4-5]

The AU issued his D&O finding the misconduct charge proved and ordering the

revocation ofRespondent's Merchant Mariner Credentials on October 2,2009. [D&O at

33] On October 28,2009, Respondent filed his Notice of Appeal in the matter.

Respondent perfected his appeal by filing an Appellate Brief on December 1, 2009. The

Coast Guard filed a timely Reply Brief on January 5, 2010. Therefore, this appeal is

proper!y before me.

APPEARANCES: Respondent was represented, at the hearing and on the Reply

Brief, by Barry Evans, Attorney at Law, 550 Egret Bay Boulevard, League City, Texas

77573. The Coast Guard was represented by Mr. Gary Ball ofthe USCG National

Maritime Center and Investigating Officer LT Tim Tilghman of USCG Marine Safety

Unit Galveston, Texas.

BASES OF APPEAL

Respondent raises the following bases of appeal:

I. The evidence is insufficient to sustain the allegations ofrefusal to

submit to a drug tests because ...[Respondent]...reportedfor a

drug test within hours ofbeing directed to do so by his employer.

II. The evidence is insufficient to sustain the allegations ofrefusal to

submit to a drug test because ...[Respondent's] ... employer did not

meet the regulatory guidelinesfor post incident drug testing.

III. In the alternative, the order ofrevocation is excessive and harsh

and should be reevaluated.

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THOMAS

OPINION

Standard ofReview

N°'-26 9 a

On appeal, a party may challenge whether each finding of fact rests on substantial

evidence, whether each conclusion oflaw accords with applicable law, precedent, and

public policy, and whether the AU committed any abuses of discretion. See 46 C.F.R. §

5.701 and 33 C.F.R § 20.1001. "Under the governing standard ofreview on appeal, great

deference is given to the AU in evaluating and weighing the evidence." Appeal

Decision 2685 (MATT). "The ALl is the arbiter offacts" and it is "his duty to evaluate

the testimony and evidence presented at the hearing." Appeal Decision 2610

(BENNETT). Under governing precedent, "the findings offact ofthe ALl are upheld

unless they are shown to be arbitrary and capricious or there is a showing that they are

clearly erroneous." Appeal Decision 2610 (BENNETT) citing Appeal Decisions 2557

(FRANCIS), 2452 (MORGANDE) and 2332 (LORENZ). The "[fJindings ofthe AU

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 Decision 2639 (HAUCK)

citing Appeal Decisions 2527 (GEORGE), 2522 (JENKINS), 2519 (JEPSON), 2506

(SYVERTSEN), 2424 (CAVANAUGH), 2282 (LITTLEFIELD), and 2614

(WALLENSTEIN).

The evidence is insufficient to sustain the allegations ofrefusal to submit to a drug tests

because ...[Respondent]...reportedfor a drug test within hours ofbeing directed to do so

by his employer.

In the case at hand, Respondent does not deny that the MN MISS SALLY was

involved in a SMI on December 8, 2008, that Respondent, who was acting as the operator

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THOMAS No. 26 9 0

ofthe vessel, was required to submit to post-casualty drug testing as a result of his

involvement in the SMI, or that he refused to submit to chemical testing prior to his

arrival at Christus St. John Hospital. Instead, Respondent avers that while he was "[a]t

Christus St. John HospitaL .. [he]... followed the instructions ofmedical personnel and

was willing and able to provide a urine specimen for drug screening had one been

requested" at that time. [Respondent's Appeal Brief at 3]

As the ALJ correctly stated in his D&O, 49 C.F.R. § 40.191 (a) defines "refusal to

take a Department ofTransportation Drug test" as follows:

(a) As an employee, you have refused to take a drug test if you:

(l) Fail to appear for any test. ..within a reasonable time, as

determined by the employer, consistent with applicable DOT

agency regulations, after being directed to do so by the

employer.

[D&O at 13] (emphasis in original). As the ALJ further concluded "[a]n individual

mariner's responsibility to provide a specimen, under 46 C.F.R. 4.06-5(a).. .is distinct and

separate from the marine employer's responsibility to ensure that post-casualty chemical

testing is completed within 32 hours after the occurrence of an SMl." D&O at 15, citing

46 C.F.R. § 4.06-3(b)(i). "The 32-hour rule is the outside limit for an employer to ensure

testing occurs: it does NOT confer upon a mariner the right to wait until the 32nd hour.

The mariner must submit a specimen when ordered to do so-immediately, taking into

account the circumstances." [D&O at 15]

In this case, the ALJ found that Respondent refused to submit to a post-casualty

chemical test following conversations at 7:30 a.m. (with Mr. Berry) and 9:00 a.m. (with

CW02 Gentry) on December 9,2008, and when Respondent refused to enter Calder

Urgent Care Center (stating he was in too much pain to get out of his truck). [D&O at

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THOMAS No. 2690

23-24] In so concluding, the ALl considered the evidence contained in the record,

including the testimony ofthe witnesses presented during the hearing and the exhibits

presented therein. The ALl's finding that Respondent refused to submit to chemical

testing long before he entered the waiting room at the Christus St. John Hospital is

consistent with the evidence contained in the record and is not arbitrary or capricious or

based on inherently incredible evidence. As the ALl noted in his D&O "[a]lthough

Respondent artfully avoided uttering a blanket refusal, his actions and obfuscations

following the SMI clearly constituted a refusal to comply" with his employer's direction

to undergo chemical testing. [D&O at 24] As a result, the ALl found that although

"Respondent was directed by his marine employer to submit to a post-SMI chemical drug

test. ..in a clear, unmistakable and unambiguous manner," "Respondent failed to provide

a urine sample/specimen post-SMI as required by 46 C.F.R. § 4.06-5." [D&O at 33] The

ALl's finding is consistent with the law and is not an abuse of his discretion.

Accordingly, Respondent's first basis of appeal is not persuasive.

II.

The evidence is insufficient to sustain the allegations ofrefusal to submit to a drug test

because ...[Respondent's} ... employer did not meet the regulatory guidelinesfor post

incident drug testing.

Citing 46 C.F.R. § 4.06-I(b), which mandates that a marine employer "take all

practicable steps to have each individual engaged or employed on board a vessel who is

directly involved in the incident chemically tested for evidence. of drug and alcohol use,"

Respondent next contends that the ALl erred in finding the misconduct charge proved

because Breathwit did not "take all practicable steps necessary" to ensure that

Respondent was drug tested. [Respondent's Appeal Brief at 4] Respondent specifically

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THOMAS No. 26 9 0

contends that "[d]espite being at the hospital for over 512 hours, his employer failed to

request a standard drug screen." [Id.]

A review ofthe records shows that Respondent raised this issue in his post

hearing brief and that the AU addressed the issue in his D&O. To that end, the ALJ

stated as follows:

While it is true that 46 C.F.R. § 4.06-I(b) says a marine employer shall

take "all practical steps" to ensure mariners are tested, the law does NOT

require the employer to pursue the employee at every tum, to physically

restrain or repeatedly demand compliance. Accordingly, Breathwit was

not obligated to contact Drug Screens, Etc., at I:30 a.m. on December 9

2008 to collect Respondent's urine specimen. Neither was Breathwit

obliged to demand Respondent specimen during the afternoon and evening

ofDecember 9 at the Christus St. Johns Hospital. Respondent's

suggestion that Breathwit was somehow obliged to ensure a specimen was

collected at the hospital the evening of December 9, 2008 is plainly

erroneous. Even though Breathwir assumed financial responsibility for

Respondent's treatment, Breathwit could not physically restrain

Respondent nor force him to submit a urine or blood test nor order health

care providers there to involuntarily take a specimen for testing.

[D&O at 31-32] (emphasis in original)(footnotes and internal citations omitted).

Respondent reasserts the issue on appeal. A review ofthe record indicates sufficient

evidence to support the AU's conclusion that Respondent refused to submit to a drug test

BEFORE he arrived at Christus St. John Hospital and that Respondent's marine employer

complied with the applicable regulations in attempting to have Respondent drug tested.

The AU's conclusions as to Respondent's second argument were consistent with

applicable law and were neither arbitrary nor capricious. Accordingly, Respondent's

second basis of appeal is not persuasive.

III.

In the alternative, the order ofrevocation is excessive and harsh and should be

reevaluated.

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THOMAS No. 2. 6 9 0

Prior Commandant Decisions on Appeal have held that "[i]n Coast Guard

suspension and revocation cases, the sanction imposed in a particular case is exclusively

within the authority and discretion ofthe ALl." Appeal Decision 2680 (McCARTHY),

citing 46 C.F.R. § 5.569(a) and Appeal Decisions 2622 CNITKIN), 2618 (SINN), 2609

(DOMANGUE), 2543 (SHORT) and 1998 (LEBOEUF). "While the ALl may look to

the Suggested Range of an Appropriate Order Table, 46 C.F.R. Table 5.569, for

information and guidance with respect to a particular violation, he is not required to do

so, and he may increase or decrease the suggested sanction as he sees fit." Appeal

Decision 2654 (HOWELL) citing 46 C.F.R. § 5.569 and Appeal Decisions 2640

(PASSARO) and 2618 (SINN). It has further been held that "[a]n order imposed at the

conclusion of a case will only be modified on appeal ifthat order is clearly excessive or

an abuse of discretion." Appeal Decision 2622 (NITKIN) quoting Appeal Decision 2618

(SINN).

In this case, the record shows that the ALl carefully considered the issue of

sanction. To that end, the ALl stated as follows with regard to the sanction imposed in

the case:

Respondent presented no witnesses or evidence in mitigation of his

actions... except for the implicit understanding that he was, in all

probability, in some degree of pain or discomfort following the incident

that occurred on or about December 8, 2008. Since his physical and/or

emotional condition did not rise to the level of a legal defense to his

actions.. .1 can only afford his condition some weight in mitigation of his

actions.

By contrast, the Coast Guard presented matters in aggravation that would

support revocation. Specifically the Coast Guard proved Respondent's

duplicitous behavior relative to required drug testing. I point with

particularity [to] the events on the afternoon and evening of December 9,

2008. At one moment, Respondent could drive his truck, walk, unassisted,

go to a motel and be photographed. At the next, he claimed his pain was

10
THOMAS No. 2690

too great to even get out of his truck and obtain medical attention-yet

within an hour, he could again drive and again walk unassisted. The

evidence strongly suggests Respondent intentionally avoided complying

with his employer's order.

"Of paramount concern is the safety oflife at sea and the welfare of

individual seamen." Refusal to submit to a post incident chemical test

raises serious doubt about a mariner's ability to perfonn safely and

competently in the future. "Past Commandant Decisions on Appeal have

articulated a clear rationale as to why revocation of a mariner's credential

is appropriate in cases involving the mariner's refusal to submit to a

required drug test: 'ifmariners could refuse to submit to chemical testing

and face a lesser Order, it is difficult to imagine why anyone that may

have used drugs would ever consent to be tested. ,,,

[D&O at 35-36] (internal citations omitted) (emphasis in original)

Therefore, the record shows that the ALJ carefully considered the aggravating and

mitigating evidence presented in the case and concluded that revocation was the

appropriate sanction. Although the sanction imposed is beyond that articulated in the

Coast Guard's Table of Appropriate Orders, given the evidence in aggravation, I do not

find it to be either excessive or involving an abuse ofthe ALJ's discretion. Accordingly,

Respondent's final argument is wholly unpersuasive.

CONCLUSION

The findings ofthe ALJ had a legally sufficient basis. The ALJ's decision to

Revoke Respondent's Merchant Mariner Credentials was not arbitrary, capricious, clearly

erroneous, or based on inherently incredible evidence. Because competent, substantial,

reliable, and probative evidence exists to support the AU's decision, Respondent's

appeal arguments are without merit.

ORDER

The order ofthe Administrative Law Judge dated October 2,2009, is

AFFIRMED.

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THOMAS

V{Ct'

No. 2690

Signed at Washington, D.C. this J~ay of ~gI1_,2010.

12