UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

DEREK RAFAEL GOMEZ, 

Respondent

_________________________________

Docket Number 2011-0412

Enforcement Activity No. 4106267

DECISION AND ORDER

Issued: April 18, 2012

By Administrative Law Judge: Honorable Walter J. Brudzinski

Appearances:

For Complainant

LT Jonathan D. Shumate

CWO Thomas J. Davan

United States Coast Guard Sector New York

212 Coast Guard Drive

Staten Island, New York 10305

For Respondent

Mr. Derek Rafael Gomez, pro se

405 East 92nd Street, Apt. 20C

New York, New York 10128
2

SUMMARY

The United States Coast Guard (Coast Guard) initiated this administrative action under 

46 U.S.C. § 7703(1)(B), 33 C.F.R. Part 20, and 46 C.F.R. Part 5 seeking a twenty four (24) 

month outright suspension of Respondent Derek Rafael Gomez‟s (Respondent) Merchant 

Mariner‟s Credential. In its Complaint, the Coast Guard alleged Mr. Gomez wrongfully refused 

to provide a second specimen by means of a directly observed collection for a Department of 

Transportation [DOT] drug test, thereby committing an act of misconduct. The specimen 

collector‟s testimony revealed she failed to act in accordance with the regulations in that she did 

not direct or conduct the immediate collection of a new urine specimen under direct observation 

procedures. The undersigned therefore finds that the Coast Guard DID NOT PROVE the 

allegations in the Complaint by a preponderance of reliable, probative and credible evidence. 

The Complaint against Respondent, Derek Rafael Gomez, is thus dismissed with prejudice. 

STATEMENT OF THE CASE

The Coast Guard charged Respondent with one count of Misconduct in violation of 46 

U.S.C. § 7703(1)(B) and 46 C.F.R. § 5.27. Complaint (September 9, 2011). The Coast Guard 

alleged the following:

1. On or about 12 July 2011, at approximately 1425 Respondent submitted to a 

pre-employment DOT drug test in accordance with 46 CFR 16.210.

2. Respondent provided an initial urine specimen, which failed the requisite 

standards for temperature and odor as required by 49 CFR 40.65.

3. Respondent was informed by the DOT urine collector that he was required to 

provide a second urine specimen in accordance with 49 CFR 40.65(b)(5), 

40.65(c)(1); and 49 CFR 40.67(c).

4. On or about 12 July 2011, at approximately 1425, Respondent wrongfully 

refused to provide a second urine specimen by means of a directly observed 

collection and left the testing site after the testing process commenced, acts which 

constitute misconduct under 46 CFR 5.27; 49 CFR 40.67(m); & 49 CFR 

40.191(a)(2) & (3).

See Coast Guard Complaint at 2. 
3

In his Answer, Respondent denied most of the allegations and requested a hearing which

took place in New York on October 26, 2011. The undersigned conducted the hearing in 

accordance with the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559 as well as the 

substantive and procedural regulations at 46 C.F.R. Part 5, and 33 C.F.R. Part 20. Respondent 

produced his credential at the opening of the hearing in accordance with 46 C.F.R. § 5.521.

In its Complaint, the Coast Guard alleged Respondent submitted to a pre-employment 

drug test. Although he admitted this allegation in his Answer, at hearing Respondent claimed it 

was not a pre-employment drug test, but rather, he was attempting to raise his grade from seaman 

to able body seaman. See Tr. at 67:20 – 24, 71:16 – 23. In its letter to the Coast Guard advising 

of Respondent‟s “Refusal to Test,” the Seafarer‟s Health and Benefits Plan referred to the drug 

test as a “pre-employment/periodic urine drug test.” See CG Ex. 02. The test, therefore, would 

more appropriately be categorized as a periodic test. At the hearing, Respondent did not dispute 

that he was acting under the authority of his credential and that there was a legitimate purpose 

for the drug test. Tr. at 17:11 – 12, 67:11 – 24, and 71:6 – 23. Because the undersigned 

dismissed the Complaint on other grounds, it is unnecessary to develop the record on this issue. 

The Coast Guard presented the testimony of the DOT certified specimen collector, Leya 

Sandoval [the collector or Ms. Sandoval] and introduced five (5) exhibits, all of which were 

admitted without objection. Mr. Gomez did not introduce any exhibits; however, he testified 

under oath on his own behalf. The witness and exhibit list is contained in Attachment A.

Following the hearing, the undersigned issued a Scheduling Order for post hearing briefs, 

including proposed findings of fact and conclusions of law, to be filed no later than December 9, 

2011 and reply briefs to be filed no later than December 27, 2011. See Post Hearing Brief 

Scheduling Order. Respondent submitted a post hearing brief but it contained no enumerated, 

proposed findings of fact and conclusions of law. The Coast Guard did not submit a post hearing 
4

brief; instead, it submitted a reply brief containing proposed findings of fact and conclusions of 

law. Proposed findings and conclusions are ordinarily contained in a post hearing brief, not a 

reply brief. Under the terms of the Scheduling Order, the Coast Guard precluded Respondent 

from replying to its initial arguments and proposed findings by placing its proposed findings and 

conclusions in its reply brief. However, there is no resulting prejudice to Respondent because 

the undersigned finds the allegations in the Complaint not proved. The Coast Guard‟s proposed 

findings of fact and rulings thereon are contained in Attachment B.

In his post hearing brief, Mr. Gomez argues the case should be dismissed because “the 

USCG did not prove beyond a preponderance of the evidence that: (A) Ms. Sandoval 

unequivocally articulated to me that I was required to submit a second directly observed urine 

specimen immediately and (B) that I subsequently refused to submit said specimen, behavior 

thus amounting to misconduct.” Respondent’s Post-Hearing Brief at 10. 

In its reply, the Coast Guard argues Respondent‟s first sample showed signs of 

tampering; that the collector informed Respondent that it did not meet the temperature 

requirements; that the collector asked Respondent to submit to a second test; and, that the 

Respondent verbally refused and left the testing facility. 

This case is now ripe for decision.

ISSUE

The parties raise a single issue: Did the collector meet her burden under the regulations 

by clearly informing the Respondent that he was immediately required to submit an additional 

urine specimen under direct observation procedures? 

BURDEN OF PROOF

The Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559, applies to Coast Guard 

Suspension and Revocation trial-type hearings before United States Administrative Law Judges 

(ALJs). See 46 U.S.C. § 7702(a). The APA authorizes sanctions if, upon consideration of the 
5

entire record as a whole, the charges are supported by reliable, probative, and substantial 

evidence. See 5 U.S.C. § 556(d). Under Coast Guard procedural rules and regulations, the 

burden of proof is on the Coast Guard to prove that the charges are supported by a 

preponderance of the evidence. See 33 C.F.R. §§ 20.701, 20.702(a). “The term substantial 

evidence is synonymous with preponderance of the evidence as defined by the U.S. Supreme 

Court.” Appeal Decision 2477 (TOMBARI) (1988); see also, Steadman v. SEC, 450 U.S. 91, 

107 (1981). The burden of proving a fact by a preponderance of the evidence “simply requires 

the trier of fact „to believe that the existence of a fact is more probable than its nonexistence 

before [he] may find in favor of the party who has the burden to persuade [the judge] of the 

fact‟s existence.‟” Concrete Pipe and Products of California, Inc. v. Construction Laborers 

Pension Trust for Southern California, 508 U.S. 602, 622 (1993) (citing, In re Winship, 397 U.S. 

358, 371-2 (1970) (Harlan J., concurring) (brackets in original)). Therefore, the Coast Guard 

must prove by reliable, probative, and credible evidence that Respondent more likely than not 

committed the violation charged. 

PRINCIPLES OF LAW

“The purpose of Coast Guard suspension and revocation proceedings is to promote safety 

at sea.” 46 U.S.C. § 7701(a). Under 46 C.F.R. § 5.19 (b), the Commandant of the Coast Guard 

“has delegated to ALJs the authority to admonish, suspend with or without probation or revoke a 

license, certificate or document issued to a person by the Coast Guard under any navigation or 

shipping law.”1 Title 46 U.S.C. § 7703(1)(B) provides that “[a] license, certificate of registry, or 

merchant mariner‟s document issued by the Secretary may be suspended or revoked if the holder 

- - when acting under the authority of that license, certificate, or document - - has committed an 

act of misconduct or negligence.” Title 49 C.F.R. § 5.27 defines misconduct as “human behavior 

 

1 The Coast Guard now refers to licenses, certificates of registry, and documents as credentials. 74 Fed. Reg. 11,216, 

11,196 (March 16, 2009). 
6

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.” 

Title 46 C.F.R. § 16.201(a) prescribes “[c]hemical testing of personnel must be 

conducted as required by this subpart and in accordance with the procedures detailed in 49 CFR 

part 40.” 

Employee’s Responsibilities

The allegation in Paragraph 4 of the Coast Guard‟s Complaint states “Respondent 

wrongfully refused to provide a second urine specimen by means of a directly observed 

collection and left the testing site after the testing process commenced, acts which constitute 

misconduct under 46 CFR 5.27; 49 CFR 40.67(m); & 49 CFR 40.191(a)(2) & (3).” Complaint at 

2. 

The regulations at 49 C.F.R. Part 40 put the employee on notice of conduct that 

constitutes a refusal to test. Title 49 C.F.R § 40.67(m) provides “[a]s the employee, if you 

decline to allow a directly observed collection required or permitted under this section to occur, 

this is a refusal to test.” Further, 49 C.F.R. § 40.191(a)(2) provides “[a]s an employee, you have 

refused to take a drug test if you: Fail to remain at the testing site until the testing process is 

complete . . ..” Subsection (a)(3) of 49 C.F.R. § 40.191 prescribes, “[a]s an employee, you have 

refused to take a drug test if you: Fail to provide a urine specimen for any drug test required by 

this part or DOT agency regulation . . ..” 

Specimen Collector’s Duties

In addition to the above regulations that put the employee (Respondent) on notice of 

conduct that constitutes a refusal to test, there are numerous, specific regulations the specimen 

collector must follow. To determine whether Respondent refused to test, it is necessary to 
7

determine whether the specimen collector substantially complied with the following relevant 

regulations. 

49 C.F.R. § 40.61

As the collector, you must take the following steps before actually beginning a 

collection: * * * (c) Require the employee to provide positive identification. You 

must see a photo ID issued by the employer (other than in the case of an owneroperator or other self-employed individual) or a Federal, state, or local 

government (e.g. a driver‟s license). 49 C.F.R. § 40.61(c).

As the collector, you must...“[e]xplain the basic collection procedure to the 

employee, including showing the employee the instructions on the back of the 

CCF. 49 C.F.R. § 40.61(e).

As the collector, you must . . . [d]irect the employee to remove outer clothing (e.g. 

coveralls, jacket, coat, hat) that could be used to conceal items or substances that 

could be used to tamper with a specimen. You must also direct the employee to 

leave these garments and any briefcase, purse, or other personal belongings with 

you or in a mutually agreeable location. You must advise the employee that 

failure to comply with your directions constitutes a refusal to test. 49 C.F.R. § 

40.61(f).

You must direct the employee to empty his or her pockets and display the items in 

them to ensure that no items are present which could be used to adulterate the 

specimen. If nothing is there that can be used to adulterate a specimen, the 

employee can place the items back into his or her pockets. As the employee you 

must allow the collector to make this observation. 49 C.F.R. § 40.61(f)(4).

49 C.F.R. § 40.63

As the collector, you must take the following steps before the employee provides 

the urine specimen: * * * (b) Instruct the employee to wash and dry his or her 

hands at this time. You must tell the employee not to wash his or her hands again 

until after delivering the specimen to you. You must not give the employee any 

further access to water or other materials that could be used to adulterate or dilute 

a specimen.” 49 C.F.R. § 40.63(b). 

 

49 C.F.R. § 40.65

As a collector, you must check the following when the employee gives the 

collection container to you: * * * (b) Temperature. You must check the 

temperature of the specimen no later than four minutes after the employee has 

given you the specimen. 49 C.F.R. § 40.65(b). 

The acceptable temperature range is 32-38C/90-100F. 49 C.F.R. § 40.65 (b)(1). 

You must determine the temperature of the specimen by reading the temperature 
8

strip attached to the collection container. 49 C.F.R. § 40.65(b)(2).

If the specimen temperature is within the acceptable range, you must mark the 

“Yes” box on the CCF (Step 2). 49 C.F.R. § 40.65(b)(3).

If the specimen temperature is outside the acceptable range, you must mark the 

“No” box and enter in the “Remarks” line (Step 2) your findings about the 

temperature. 49 C.F.R. § 40.65(b)(4).

If the specimen temperature is outside the acceptable range, you must 

immediately conduct a new collection using direct observation procedures (see § 

40.67). 49 C.F.R. § 40.65(b)(5).

In a case where a specimen is collected under direct observation because of the 

temperature being out of range, you must process both the original specimen and 

the specimen collected using direct observation and send the two sets of 

specimens to the laboratory. This is true even in a case in which the original 

specimen has insufficient volume but the temperature is out of range. You must 

also, as soon as possible, inform the DER [Designated Employer Representative] 

and collection site supervisor that a collection took place under direct observation 

and the reason for doing so. 49 C.F.R. § 40.65(b)(6). (Brackets added). 

In a case where the employee refuses to provide another specimen (see 

§40.191(a)(3)) or refuses to provide another specimen under direct observation 

(see § 40.191(a)(4)), you must notify the DER. As soon as you have notified the 

DER, you must discard any specimen the employee has provided previously 

during the collection procedure. 49 C.F.R. § 40.65(b)(7). 

You must inspect the specimen for unusual color, presence of foreign objects or 

material, or other signs of tampering (e.g., if you notice any unusual odor). 49 

C.F.R. § 40.65(c).

If it is apparent from this inspection that the employee has tampered with the 

specimen (e.g. blue dye in the specimen, excessive foaming when shaken, smell 

of bleach), you must immediately conduct a new collection using direct 

observation procedures (see § 40.67). 49 C.F.R. § 40.65(c)(1). 

In a case where a specimen is collected under direct observation because of 

showing signs of tampering, you must process both the original specimen and the 

specimen collected using direct observation and send the two sets of specimens to 

the laboratory. This is true even in a case in which the original specimen has 

insufficient volume but it shows signs of tampering. You must also, as soon as 

possible, inform the DER and collection site supervisor that a collection took 

place under direct observation and the reason for doing so. 49 C.F.R. § 

40.65(c)(2). 

In a case where the employee refuses to provide a specimen under direct 

observation (see § 40.191(a)(4)), you must discard any specimen the employee 

provided previously during the collection procedure. Then you must notify the 
9

DER as soon as practicable. 49 C.F.R. § 40.45(c)(3).

49 C.F.R. § 40.67

As a collector, you must immediately conduct a collection under direct 

observation if: * * * (3) The temperature on the original specimen was out of 

range (see § 40.65(b)(5)); or (4) The original sample specimen appeared to have 

been tampered with (see § 40.65(c)(1)). 49 C.F.R. §§ 40.67(c)(3) and (4).

As the collector, you must explain to the employee the reason, if known, for a 

directly observed collection under paragraphs (c)(1) through (3) of this section. 

49 C.F.R. § 40.67(d)(2).

As the collector, you must complete a new CCF for the directly observed 

collection. 49 C.F.R. § 40.67(e). You must mark the “reason for test” block 

(Step 1) the same as for the first collection. You must check the “Observed, 

(Enter Remark)” box and enter the reason (see § 40.67(b)) in the “Remarks” line 

(Step 2). 49 C.F.R. §§ 40.67(e)(1) and (2).

As the collector, you must ensure that the observer is the same gender as the 

employee. You must never permit an opposite gender person to act as the 

observer. The observer can be a different person from the collector and need not 

be a qualified collector. 49 C.F.R. § 40.67(g).

As the collector, if someone else is to observe the collection (e.g. in order to 

ensure a same gender observer) you must verbally instruct that person to follow 

procedures at paragraphs (i) and (j) of this section. If you, the collector, are the 

observer, you too must follow these procedures. 46 C.F.R. § 40.67 (h).

As the collector, when you learn that a directly observed collection should have 

been collected but was not, you must inform the employer that it must direct the 

employee to have an immediate recollection under direct observation. 49 C.F.R. 

§ 40.67(n).

49 C.F.R. § 40.191

As a collector or an MRO, when an employee refuses to participate in the part of 

the testing process in which you are involved, you must terminate the portion of 

the testing process in which you are involved, document the refusal on the CCF 

(including, in the case of the collector printing the employee‟s name on Copy 2 of 

the CCF), immediately notify the DER by any means (e.g. telephone or secure fax 

machine) that ensures that the refusal notification is immediately received. 49 

C.F.R. § 40.191(d).

As the collector, you must note the refusal in the “Remarks” line (Step 2) and sign 

and date the CCF. 49 C.F.R. § 49.191(d)(1). 
10

FINDINGS OF FACT

The following Findings of Fact are based on a thorough and careful analysis of 

documentary evidence, testimony of witnesses, and the entire administrative record. 

1. At all relevant times Respondent was a holder of a Merchant Mariner‟s Credential (Serial 

Number 000088711) issued by the United States Coast Guard. See Coast Guard’s 

Complaint at 1, ¶ 1; Respondent’s Answer at 1; and, CG Ex. 01.2

2. On July 12, 2011, Respondent submitted to a DOT required drug test under 46 C.F.R. 

Part 16. See Tr. at 17, 71, and 82 – 84. 

3. Ms. Leya Sandoval is a certified Department of Transportation Specimen Collector. See

CG Ex. 05; Tr. at 22:10 – 24:5. 

4. Ms. Sandoval had taken approximately 1,000 samples over a period of approximately 

three (3) years but has had only one other situation in which she was required to secure a 

second sample. See Tr. at 24:20 – 25:5, 59:16 – 25.

5. When Mr. Gomez arrived at the collection facility he needed to use the restroom. See Tr. 

at 37:4 – 16. 

6. Ms. Sandoval did not ask Respondent to empty his pockets because he was wearing 

shorts and she does not recall whether Respondent washed his hands. See Tr. at 39: 2 –

12. 

7. Mr. Gomez provided an initial urine specimen. See Tr. at 39:13 – 20.

8. When Mr. Gomez handed Ms. Sandoval his urine specimen she believed it was hot so she 

put it down. See Tr. at 39:22 – 40:3.

9. Ms. Sandoval would have put the specimen down to check the temperature even if she 

had not believed it was hot. Id. 

 

2

Citations referencing the transcript are as follows: (Tr. at ___). Citations referring to Coast Guard Exhibits are as 

follows: (CG Ex. ___). 
11

10. When Ms. Sandoval attempted to read the temperature, she claimed the strip on the side 

of the specimen container did not show a temperature reading. See Tr. at 41:13 – 24. 

11. Ms. Sandoval believed Mr. Gomez‟s urine specimen had a strong urine odor. See Tr. at 

40:9 – 41:11. 

12. In her written statement of July 15, 2011, regarding Mr. Gomez‟s drug test on July 12, 

2011, Ms. Sandoval stated that his sample had an “unusual odor.” See CG Ex. 04. 

13. Ms. Sandoval probably would have asked Respondent to submit an additional sample 

under direct observation based solely on the odor of his initial specimen even though she 

did not inform Respondent of any odor or remark any odor on the Custody Control Form. 

See Tr. at 42:9 – 19, CG Ex. 03.

14. Ms. Sandoval claims she probably told Respondent that “because the specimen not 

showing [sic] the temperature, it‟s required for me to collect a second sample.” See Tr. at 

43:2 – 5. 

15. In response to Ms. Sandoval stating “it‟s required for me to collect a second sample,” 

Respondent stated “...that if there‟s any problem, if they needed him to do - - the 

company will call him.” See Tr. at 45:10 – 13. 

16. After Mr. Gomez told the collector “if they needed him to do [the second test] the 

company will call him” Ms. Sandoval finished the collection process for Respondent‟s 

initial sample including splitting the specimen into separate vials, sealing the vials, and 

finishing the CCF. See Tr. at 47:14 – 19.

17. Ms. Sandoval re-stated that it was required for her to collect a second sample but she did 

not further explain to Respondent that the sample was to be provided immediately under 

direct observation. See Tr. at 47:20 – 24. 
12

18. Ms. Sandoval indicated in the remarks section of the CCF “specimen was too hot, patient 

body temperature 98.5 and, slash, refused to do second.” See Tr. at 36:11 – 21; CG Ex. 

03.

19. Ms. Sandoval did not clearly explain the remarks on the CCF to Respondent. See Tr. at 

49:6 – 20. 

20. Ms. Sandoval understood that the second directly observed specimen was required 

immediately but did not communicate this to Respondent. See Tr. at 57:9 – 22. 

21. Based solely on Respondent‟s statement that someone would call him if he had to provide 

a second test, Ms. Sandoval determined that Respondent was refusing to provide a second 

specimen. See Tr. at 50:9 – 18, 88:25 – 89:5.

22. Ms. Sandoval did not explain to Respondent that the additional collection would be done 

under direct observation procedures. See Tr. at 50:9 – 18. 

23. There were males available to be a same sex observer for a direct observation collection 

but Ms. Sandoval made no attempt to contact anyone. See Tr. at 60:21 – 61:2, 93:25 –

94:24.

24. After finishing the initial collection, Respondent and the collector walked out of the 

testing area to the front reception area where Respondent remained for several minutes 

talking to the other receptionist. See Tr. at 48:8 – 22, 68:13 – 20, 79:18 – 23. 

25. Ms. Sandoval believed that while Respondent was “hanging out” in the reception area he 

still might provide a second sample even though she had previously determined he had 

refused. See Tr. at 90:1 – 6, 97:19 – 98:4, and 98:19 – 24.

26. Ms. Sandoval made no attempt to discuss or further explain the regulations‟ 

requirements while Respondent was “hanging out” for several minutes in the reception 

area. See Tr. at 88:25 – 89:5.
13

27. Respondent left the collection facility without providing a second specimen. See Tr. at 

49:21 – 50:8, 76:11 – 13. 

ANALYSIS AND CREDIBILITY DETERMINATIONS

“Great deference is given to the ALJ in evaluating and weighing the evidence.” Appeal 

Decision 2695 (AILSWORTH) (2011). “The ALJ is the arbiter of facts” and it is “his duty to 

evaluate the testimony and evidence presented at the hearing.” Id. “The ALJ is vested with 

broad discretion in making determinations regarding the credibility of witnesses and in resolving 

inconsistencies in the evidence.” Id. Further, “the findings of the ALJ need not be consistent 

with all evidentiary material in the record as long as there is sufficient material in the record to 

support their justification.” Id. 

A collector need only substantially comply with the regulations for the testing process to 

be valid. Technical violations are insufficient to show that the chain of custody is broken or that 

the integrity of a sample is compromised. Appeal Decision 2688 (HENSLEY) (2010). As the 

Coast Guard correctly states in its reply brief, “this is a refusal case, wherein the focus of the 

inquiry is not the integrity of the specimen or the chain of custody, but rather on the testimony of 

the individuals involved.” Complainant’s Post-Hearing Brief at 23. 

1. The Collection 

When the Coast Guard asked “[d]id you explain the procedures to him . . . all the 

procedures for the collection” Ms. Sandoval responded “[w]hat do you mean „all the 

procedures?‟” Tr. at 38:20-25. There is no evidence the collector required Respondent to present 

valid identification before beginning the testing process. 49 C.F.R. § 40.61(c). Further, Ms. 

Sandoval provided no testimony that she “explained the basic collection procedures” to 

Respondent or showed him “the instructions on the back of the CCF.” 49 C.F.R. § 40.61(e). 

Moreover, there is no evidence the collector advised Respondent “that failure to comply with 

your [the collector‟s] directions constitutes a refusal to test.” 49 C.F.R. § 40.61(f). 
14

When the Coast Guard asked “[d]id you have him wash his hands” Ms. Sandoval 

responded “I always make sure that everything was clean and safe there for him to have that. I 

don‟t remember or recall him actually washing his hands.” Tr. at 39:2-7; see also, 49 C.F.R. § 

40.63(b). When asked if she told him to empty his pockets, Ms. Sandoval said, “He didn‟t seem 

to have any - - he didn‟t have no [sic] outerwear. It was the summertime. He had short sleeves 

and probably shorts I believe.” Tr. at 39:8 – 12; 49 C.F.R. § 40.61(f)(4). Early on in the process, 

Ms. Sandoval substituted her own judgment instead of doing as the regulations direct. While 

these violations may be technical individually, when looked under the totality of the 

circumstances, a pattern of the collector‟s failure to comply with the regulations starts to emerge. 

2. The Collector Failed to Communicate Clearly

a. The Collector Failed to Communicate to the Respondent 

When Ms. Sandoval was unable to read the temperature strip on the collection container, 

the regulations require her to “immediately conduct a new collection using direct observation 

procedures.” 49 C.F.R. §§ 40.65(b)(5) and 40.67(c)(3). Inherent in this requirement is the 

necessity for the collector to clearly explain to the employee what is required in such a way that 

the employee understands. See 49 C.F.R. §§ 40.61(e) and (f). The regulations do not prescribe 

Respondent‟s conduct except that he or she must abide by the collector‟s instructions. See 49 

C.F.R. §§ 40.61(e) and (f); §§40.191(a)(2) and (3); and §§ 40.67(m). The collector has the duty 

to “conduct” the specimen collection under direct observation procedures. See 49 C.F.R. §§ 

40.65(b)(5) and 40.67(c)(3).

The term “conduct” is not defined in the regulations; therefore, its plain meaning is used 

to define the term. Webster‟s Collegiate Dictionary defines “conduct” to mean “1: to bring by or 

as if by leading; 2a: to lead from a position of command; b: to direct or take part in the operation 

or management of; c: to direct the performance of... .” Merriam-Webster’s Collegiate 

Dictionary 240 (10th ed. 2002). Clearly, when the regulations place the duty to “conduct” on the 
15

collector, she is in the position of leadership and control in the situation. Put another way, 

Respondent does not have a duty to guess or decipher the meaning of the collector‟s statements. 

The collector is required to clearly and unambiguously direct Respondent‟s actions. 

Ms. Sandoval testified “I immediately suggested when he was in the collection area that 

he needed to provide a second one [specimen].” Tr. at 91:8-10 [Emphasis and brackets added]. 

To “suggest” is not the same as to “conduct” under the regulations. As noted above, “conduct” 

means much more than merely suggesting. Merely “suggesting” does not meet the requirements 

of the regulations to “immediately conduct a new collection using direct observation procedures” 

as required by 49 C.F.R. §§ 40.65(b)(5) and 40.67(c)(3).

When Ms. Sandoval determined she was required to collect a “second sample,” she told 

Respondent “because the specimen not showing [sic] the temperature, it‟s required for me to 

collect a second sample.” Tr. at 43:2 – 5. The regulations require “[i]f the specimen temperature 

is outside the acceptable range, you must immediately conduct a new collection using direct 

observation procedures (see § 40.67).” 49 C.F.R. § 40.65(b)(5). Title 49 C.F.R. § 40.67(c)(3) 

provides, “[a]s a collector, you must immediately conduct a collection under direct observation 

if: * * * (3) The temperature on the original specimen was out of range (see § 40.65(b)(5)).” 

Ms. Sandoval‟s statement does not explain to the Respondent that she must collect a 

second sample immediately, nor does it explain that the collection must be done under direct 

observation. She informed the Respondent that the sample did not show a temperature, but did 

not further explain that this required an immediate collection under direct observation. The 

regulations do not require an employee to know what it means that his specimen did not register 

a temperature on the collection cup. See 49 C.F.R. § 40.67(d)(2). The onus is on the collector 

to not only explain what that means to him but also to make sure he understands so that he can

comply with her instructions. Ms. Sandoval‟s statement that “it‟s required for me to collect a 

second sample” implicitly required Respondent to infer that he must provide a second sample 
16

under direct observation. 

Respondent claims the collector did not clearly articulate he was required to immediately 

provide a new collection under direct observation and that a failure to do so was a refusal to test. 

See Tr. at 68:13 – 24, 73:24 – 74:3, and 76:18 – 20; see also Respondent‟s Post Hearing Brief at 

10-16. In light of Ms. Sandoval‟s testimony and the totality of the circumstances, I find 

Respondent‟s claim to be credible. 

b. The Collector Failed to Testify Clearly

The undersigned has no reason to believe Ms. Sandoval‟s testimony is untruthful; 

however, her testimony is inconsistent, incoherent, nonresponsive, and vague. As a result, the 

undersigned is unable to accord sufficient weight to her statements to find the allegations in the 

Complaint proved by the preponderance of reliable, probative, and credible evidence. 

Ms. Sandoval testified on one occasion that “in my belief, I remember that I told him, 

again, it‟s the second specimen required. You need to provide it while I was finishing the 

paperwork.” Tr. at 57:3 – 8. Not only is this statement inconsistent with all her previous 

statements of what she told Respondent, but it also does not make sense in light of her 

obligations under the regulations. Her purported statement “he needed to provide it while I was 

finishing paperwork” gives the semblance that she informed him of the immediacy requirement. 

The Respondent, however, cannot just provide another sample; the new collection must be done 

under direct observation. See 49 C.F.R. §§ 40.65(b)(5), 40.65(c)(1), and 40.67(c)(3) and (4). 

The collector, therefore, is required by the regulations to fill out a new CCF and to ensure that 

the observer is the same sex as the employee. See 49 C.F.R. §§ 40.67(e) and (g). For the 

Respondent to provide a directly observed sample the collector had to take certain specific steps. 

There is no evidence that Ms. Sandoval started to fill out a new CCF, open a new collection kit, 

or contact a male observer. 

On direct examination the Coast Guard asked her as follows: “Did he mention that he had 
17

to go or didn‟t have time for that [a second test]?” Ms. Sandoval‟s replied: “I can‟t recall at the 

moment.” Tr. at 47:7 – 9. In rebuttal testimony, Ms. Sandoval stated, “[a]s I remember, he say 

[sic] that something like he has to go or if anything, they‟ll let him know or they‟ll call him 

back.” Tr. at 89:10-15. “He stated that he didn‟t have time and if there was any reason or any 

problem, they would call him.” Tr. at 97:13-15. 

When Ms. Sandoval explained to Respondent the remarks she wrote on the CCF, she 

stated that “[e]xplained why I was doing it, means when I wrote that there was no temperature on 

there, means [sic] show him that the cup didn‟t show any temperature. When I took his body 

temperature, I explained to him that it‟s just because the specimen didn‟t show no [sic] 

temperature. And I wrote that he refused to do a second because he say [sic] that if they needed 

to do it, they‟ll call him.” Tr. at 49:6 – 20. Ms. Sandoval‟s statement is nonresponsive and 

incoherent. 

When the undersigned asked Ms. Sandoval if she told Respondent, at the time of the test, 

that a second specimen was required now, she simply repeated the word “now.” Tr. at 57:3 – 15. 

When subsequently asked by the undersigned if she had any doubt that the new collection was 

required now she answered “[t]hat‟s why I gave him the requirement. It has to be immediately.” 

Tr. at 57:16 – 22. Her repetition of the word “now” does not answer the question if she told 

Respondent that he was required to submit a second directly observed specimen immediately. 

Further, her answers show she understood a new collection had to be done immediately but she 

did not clearly communicate this to Respondent. 

3. Respondent’s Statement Indicates Misunderstanding, Not Refusal

a. Collector’s Silence Affirmed Respondent’s Misunderstanding

In response to her statement that “it‟s required for me to collect a second sample,” Ms. 

Sandoval consistently testified (referring to Respondent as „him”) “if there‟s any problem, if they 

needed him to do – the company will call him . . . if they needed to do it [the second test] they‟ll 
18

call him . . . if they needed, they‟ll let him know . . . if there‟s any problem, they would call 

obviously because his number was there . . . if there is any problem of anything [sic], they would 

call him back.” Tr. at 45:10-13, 49:6-20, 50:9-18, 56:6-21, and 88:25-89:5. Respondent‟s 

statement clearly indicates he did not understand he was required to provide a second sample 

immediately. Instead of explaining or clarifying further, Ms. Sandoval remained silent.

Respondent‟s statement that “they would call him” is not an unequivocal expression that 

he is refusing to provide a specimen by means of direct observation. Rather, his statement 

reflects his misunderstanding about what the collector said. Without further clarification or 

explanation, Ms. Sandoval subjectively determined that Respondent was refusing to test. She 

explained this subjective belief when she testified as follows: “from my belief, he didn‟t have no 

[sic] intentions to give me a second specimen at that moment, because he say if they needed 

[sic], they‟ll let him know.” Tr. at 50:9 – 18. 

Although Ms. Sandoval previously determined Respondent refused the second test, she 

nonetheless testified she believed he might still provide a second sample when he was “hanging 

out” in the reception area for approximately ten minutes. However, she chose not to say anything 

to him. Tr. at 88:25 – 89:5, 90:1 – 6, 97:19 – 98:4, and 98:19 – 24. Ms. Sandoval had several 

opportunities to fully, clearly, and unambiguously explain what is required under the regulations. 

She did not do so. 

b. Collector’s Actions Affirmed Respondent’s Misunderstanding 

Ms. Sandoval‟s actions were insufficient to put the Respondent on notice that something 

was wrong. She testified that after Mr. Gomez told her “they will call him,” she “finished with 

the collection which make sure [sic] the container was temper sealed and the forms that were 

placed [sic] where they need to be and there was also a plastic bag that we used that is sealed and 

I finished all that and gave him a copy of the document.” Tr. at 47:14 – 19. The regulations 

require “[a]s a collector or an MRO [Medical Review Officer] when an employee refuses to 
19

participate in the part of the testing process in which you are involved, you must terminate the 

portion of the testing process in which you are involved, document the refusal on the CCF 

[Federal Drug Custody and Control Form] (including, in the case of the collector printing the 

employee‟s name on Copy 2 of the CCF), immediately notify the DER [Designated Employer 

Representative] by any means (e.g., telephone or secure fax machine) that ensures that the 

refusal notification is immediately received.” [Brackets and emphasis added]. 49 C.F.R. § 

40.191(d); see also 49 C.F.R. § 40.65(b)(7). Further, the regulations required Ms. Sandoval to 

discard Respondent‟s sample. 49 C.F.R. § 40.65(b)(7). 

Instead of terminating the portion of the testing process in which she was involved, Ms. 

Sandoval completed it in violation of 49 C.F.R. § 40.191(d). She also failed to discard 

Respondent‟s specimen in accordance with 49 C.F.R. § 40.65(b)(7). Her actions not only 

violated these regulations but also failed to put Respondent on notice that something was wrong. 

For example, if she had followed the above regulations, Respondent might have been curious as 

to why she terminated the test and discarded his first specimen. Instead, Respondent observed 

the collector finishing the process and giving him a copy of the CCF. Given Ms. Sandoval‟s lack 

of verbal explanation and her failure to act as the regulations prescribe, Mr. Gomez‟s belief that 

the testing process was complete and that he was free to leave was not unreasonable. 

4. Specimen Order

The undersigned notes that in addition to her testimony that Respondent‟s urine specimen 

was “too hot,” Ms. Sandoval also testified that the sample “had a little odor...a bit of a strong 

odor,” and “strong odor” but that odor was consistent with urine. See Tr. at 40:9 – 41:1. In her 

written statement of July 15, 2011, Ms. Sandoval inconsistently stated that the specimen had an 

“unusual odor.” See CG Ex. 04. Ms. Sandoval did not indicate anything about the specimen‟s 

odor on the CCF. There is no evidence she said anything to Respondent regarding the 

specimen‟s odor. Although Ms. Sandoval testified she “probably” would have determined a 
20

second sample was required based solely on the odor, the record shows that at the time of the 

collection she based her actions on the temperature, not on the odor. Even if Ms. Sandoval 

determined the odor required a new collection, her subsequent statements and actions were still 

insufficient to put Respondent on notice that he must immediately provide a new specimen under 

direct observation. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Respondent Derek Rafael Gomez and the subject matter of this hearing are 

properly within the jurisdiction of the U.S. Coast Guard and the Administrative Law Judge in 

accordance with 46 U.S.C. § 7703; 46 C.F.R. Part 5; and 33 C.F.R. Part 20. 

2. At all relevant times, Respondent was acting under the authority of his MMC. 46 

C.F.R. § 5.57(b).

3. The collector, Ms. Leya Sandoval, did not substantially comply with 49 C.F.R. 

Part 40. 

 4. Ms. Sandoval did not meet her burden under the regulations by clearly informing 

the Respondent that he was immediately required to submit an additional urine specimen under 

direct observation procedures. 

 5. Respondent‟s statement was not a refusal to test.

 6. Respondent Derek Rafael Gomez did not commit an act of misconduct by 

wrongfully refusing to provide a second urine specimen by means of a directly observed 

collection and leaving the testing site after the testing process commenced in violation of 46 

U.S.C. § 7703(1)(B) and 46 C.F.R. § 5.27. 
21

DECISION

After careful review of the entire record taken as a whole, including witness testimony, 

applicable statutes, regulations, and case law, I find the Coast Guard DID NOT PROVE by a 

preponderance of reliable, probative, and credible evidence that Respondent Derek Rafael 

Gomez, committed an act of misconduct in violation of 46 U.S.C. § 7703(1)(B) and 

46 C.F.R. § 5.27. 

WHEREFORE, 
22

ORDER

IT IS HEREBY ORDERED that in accordance with 46 C.F.R. § 5.567(a), the 

Complaint issued against Respondent Derek Rafael Gomez (Docket No. 2011-0412, 

Enforcement Activity No. 4106267) is hereby DISMISSED WITH PREJUDICE. 

PLEASE TAKE NOTICE that service of this Decision and Order 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, 

attached hereto as Attachment C.

__________________________________________________

Walter J. Brudzinski

Administrative Law Judge

United States Coast Guard 

Date: 

April 18, 2012
23

ATTACHMENT A

WITNESSES AND EXHIBITS:

Witnesses:

For the Coast Guard: Ms. Leya Sandoval, certified collector. 

For Respondent: Mr. Derek Gomez testified on his own behalf.

Coast Guard Exhibits:

CG 01 – Merchant Mariner Profile of Mr. Derek Rafael Gomez from the Coast Guard merchant 

mariner licensing and documentation system database (1 page).

CG 02 – Letter from Seafarers Health and Benefits Plan Medical Department to the Coast Guard 

regarding the July 12, 2011 drug test of Mr. Derek Gomez (1 page).

CG 03 – Two copies of the Federal Drug Testing Custody and Control Form (CCF) (2 pages).

CG 04 – Handwritten statement of Ms. Leya Sandoval dated July 15, 2011 (2 pages).

CG 05 – DOT Specimen Collector certificate for Leya Sandoval (1 page).

Respondent Exhibits:

Respondent did not offer any exhibits into evidence.
24

ATTACHMENT B

Respondent did not submit proposed findings of fact. Respondent provided further 

argument in his post-hearing brief. 

COAST GUARD’S PROPOSED FINDINGS OF FACT

1. At all relevant times mentioned herein and specifically on or about July 12, 2011, the 

above named Respondent was the holder of MMC#000088711 issued by the United 

States Coast Guard. (Tr. 8, 19, Gov‟t Ex. CG-1).3

ACCEPTED AND INCORPORATED

2. On or about July 12, 2011, Respondent submitted to a DOT required drug test under 

46 CFR Part 16 for the purpose of obtaining a raise of grade of his MMC from his status 

as a “Specially Trained Ordinary Seaman” to first endorsement as “Able Seaman” at the 

direction of the Paul Hall Center Maritime School. (Tr. 17, 71, 82-84; Resp. PHB at 1, 7-

8).

ACCEPTED AND INCORPORATED

3. The first urine specimen submitted by the respondent was extremely hot to the touch, 

so hot that the Collector had to put it down. (Tr. 36, 39-40, 55, 75, 78; Gov‟t Exs. CG-3 

& CG-4).

ACCEPTED AND INCORPORATED only to the extent that it was Ms. Sandoval‟s 

testimony which formed the basis of her opinion that “a second test is required.” The 

undersigned does not accept that statement for the truth of the matter asserted therein. 

4. The first urine specimen submitted by the respondent had an unusual, strong odor. 

(Tr. 41, 42; Gov‟t Ex. CG-4).

ACCEPTED TO THE EXTENT THAT THIS WAS MS. SANDOVAL’S 

TESTMONY. HER SUBJECTIVE OPINION, HOWEVER, IS INSUFFICIENT 

TO FIND AS A FACT THAT THE SAMPLE HAD A STRONG OR UNUSUAL 

ODOR.

5. The first urine specimen submitted by the Respondent was outside of the acceptable 

temperature range. (Tr. 32, 36, 39-45; Gov‟t Exs. CG-3 & CG-4; see also Resp PHB at 

3, 14).

REJECTED. The undersigned cannot find as a fact that the temperature was outside of 

the acceptable range based solely on Ms. Sandoval‟s testimony. Her statement that the 

specimen was too hot and her inability to get a reading on the specimen cup is 

insufficient to find as a fact that the specimen‟s temperature was out of range. 

6. The first urine specimen submitted by the Respondent registered at 100 degrees 

Fahrenheit only after the collection cup was entirely emptied into the split samples and 

the four minute allowable time period for obtaining a temperature reading had expired. 

(Tr. 41-43; Gov‟t Ex. CG-4; 49 CFR § 40.67(b)).

 

3 Citations referring to the Transcript are as follows: Transcript followed by the page number (Tr. ____); Citations 

referring to Coast Guard Exhibits are as follows: Government followed by the exhibit number (Gov‟t Ex. ____).
25

ACCEPTED AS MS. SANDOVALS TESTIMONY BUT NOT-INCORPORATED 

AS THIS IS IRRELEVANT ON THE ISSUE OF WHETHER RESPONDENT 

WAS PROVIDED WITH ADEQUATE NOTICE THAT HE WAS REQUIRED TO 

IMMEDIATELY PROVIDE A SECOND SAMPLE.

7. The Collector took Respondent‟s body temperature which registered at 98.5 degrees 

Fahrenheit. (Tr. 36, 44, 45, 49, 75; Gov‟t Ex. CG-3).

ACCEPTED BUT NOT INCORPORATED BECAUSE RESPONDENT’S BODY 

TEMPERATURE IS NOT RELEVANT ON THE ISSUE OF WHETHER THE 

COLLECTOR PROVIDED RESPONDENT WITH ADEQUATE NOTICE THAT 

HE WAS REQUIRED TO IMMEDIATELY SUBMIT A SECOND SAMPLE.

8. As a result of Finding of Fact 3-7, the first specimen submitted by Respondent was not

unaltered urine from inside his own body given at the time of the drug test specimen 

collection on July 12, 2011.

REJECTED FOR THE REASONS STATED IN THE DECISION AND ORDER.

9. The Collector informed Respondent that his first specimen was outside of the 

acceptable temperature range. (Tr. 42, 43, 45, 75, 78, 87-88, 102; Gov‟t Exs. CG-3, & 

CG-4; see also Resp PHB at 3 and 14 (regarding temperature)).

ACCEPTED THAT THE COLLECTOR TOLD RESPONDENT THE SAMPLE 

DID NOT SHOW A TEMPERATURE.

10. The Collector asked Respondent to submit a second urine specimen as required by 49 

CFR § 40.67, and conveyed that the sample needed to be given immediately. (Tr. 42, 43, 

45, 47-48, 49, 53, 56-57, 75, 78, 88, 91, 102; see also Gov‟t Exs. CG-3 & CG-4).

REJECTED. THE COLLECTOR TOLD RESPONDENT “A SECOND TEST IS 

REQUIRED” BUT DID NOT EXPLAIN TO RESPONDENT THAT HE MUST 

PROVIDE THE SECOND SAMPLE BY DIRECT OBSERVATION 

IMMEDIATELY AS REQUIRED BY THE REGULATIONS. 

11. After being asked to submit to a second specimen, the Respondent refused to submit 

a second urine specimen for drug testing. (Tr. 49, 89, 97, 98, 102; Gov‟t Exs. CG-2, CG3, & CG-4).

REJECTED FOR THE REASONS STATED IN THE DECISION AND ORDER.

12. Respondent left the testing facility without providing an acceptable urine specimen 

before the testing process was complete.4 (Tr. 49-50, 75, 76, 92-93; Gov‟t Ex. CG-2). 

REJECTED FOR THE REASONS STATED IN THE DECISION AND ORDER.

 

4

49 CFR § 40.73 defines when the testing process is “complete.”
26

COAST GUARD’S PROPOSED CONCLUSIONS OF LAW

1. The Respondent, Derek Gomez, and the subject matter contained in the hearing are 

properly within the jurisdiction vested in the United States Coast Guard under 46 USC § 

7703; 46 CFR Parts 5 and 16; 49 CFR Part 40; and 33 CFR Part 20.

ACCEPTED AND INCORPORATED.

2. At all relevant times, and specifically on or about July 12, 2011, the Respondent acted 

under the authority of his MMC, while engaged in official matters regarding his 

credentials in order for him to obtain a raise of grade and first endorsement as able 

seaman. (Tr. 17; see also 46 CFR § 5.57(b); 46 CFR § 10.231 (c)(6)(ii); 46 CFR § 

16.220(a)(2) & (a)(4).

ACCEPTED AND INCORPORATED.

3. Respondent‟s verbal responses declining to provide a second specimen, and his failure 

to submit a valid urine specimen on or about July 12, 2011, constitute a refusal to take a 

DOT drug test and, thus, an act of misconduct pursuant to 46 USC § 7703 and 46 CFR 

§5.27. See 46 CFR § 5.27; 46 CFR § 16.105 (defining “refuse to submit); 49 CFR 

§40.191(a)(2-3); 49 CFR §40.67(m); see e.g., Appeal Decision 2666 (SPENCE) (2007); 

Decision & Order (CALHOUN) (December 13, 2004, ALJ Massey presiding).

REJECTED FOR THE REASONS STATED IN THE DECISION AND ORDER.

4. The Coast Guard proved by a preponderance of substantial, reliable and probative 

evidence that the Respondent, while acting under the authority of his license, committed 

an act of misconduct by refusing to complete the DOT drug test required by 46 CFR Part 

16. 

REJECTED FOR THE REASONS STATED IN THE DECISION AND ORDER.
27

ATTACHMENT C

TITLE 33 - NAVIGATION AND NAVIGABLE WATERS

CODE OF FEDERAL REGULATIONS

PART 20 RULES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR 

FORMAL ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD

SUBPART J - APPEALS

§ 20.1001 General.

(a) Any party may appeal the ALJ's decision by filing a notice of appeal. The party 

shall file the notice with the U. S. Coast Guard Administrative Law Judge Docketing 

Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, 

MD 21201-4022. The party shall file the notice 30 days or less after issuance of the 

decision, and shall serve a copy of it on the other party and each interested person.

(b) No party may appeal except on the following issues:

(1) Whether each finding of fact is supported by substantial evidence.

(2) Whether each conclusion of law accords with applicable law, precedent, and 

public policy.

(3) Whether the ALJ abused his or her discretion.

(4) The ALJ's denial of a motion for disqualification.

(c) No interested person may appeal a summary decision except on the issue that no 

hearing was held or that in the issuance of the decision the ALJ did not consider 

evidence that that person would have presented.

(d) The appeal must follow the procedural requirements of this subpart.

§ 20.1002 Records on appeal.

(a) The record of the proceeding constitutes the record for decision on appeal.

(b) If the respondent requests a copy of the transcript of the hearing as part of the record 

of proceeding, then, --

(1) If the hearing was recorded at Federal expense, the Coast Guard will provide 

the transcript on payment of the fees prescribed in 49 CFR 7.45; but,

(2) If the hearing was recorded by a Federal contractor, the contractor will 

provide the transcript on the terms prescribed in 49 CFR 7.45.

§ 20.1003 Procedures for appeal.

(a) Each party appealing the ALJ's decision or ruling shall file an appellate brief with the 

Commandant at the following address: U.S. Coast Guard Administrative Law Judge 

Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; 

Baltimore, MD 21201-4022, and shall serve a copy of the brief on every other party.
28

(1) The appellate brief must set forth the appellant's specific objections to the 

decision or ruling. The brief must set forth, in detail, the --

(i) Basis for the appeal;

(ii) Reasons supporting the appeal; and

(iii) Relief requested in the appeal.

(2) When the appellant relies on material contained in the record, the appellate 

brief must specifically refer to the pertinent parts of the record.

(3) The appellate brief must reach the Docketing Center 60 days or less after 

service of the ALJ's decision. Unless filed within this time, or within another 

time period authorized in writing by the Docketing Center, the brief will be 

untimely.

(b) Any party may file a reply brief with the Docketing Center 35 days or less after 

service of the appellate brief. Each such party shall serve a copy on every other party. 

If the party filing the reply brief relies on evidence contained in the record for the 

appeal, that brief must specifically refer to the pertinent parts of the record.

(c) No party may file more than one appellate brief or reply brief, unless --

(1) The party has petitioned the Commandant in writing; and

(2) The Commandant has granted leave to file an added brief, in which event the 

Commandant will allow a reasonable time for the party to file that brief.

(d) The Commandant may accept an amicus curiae brief from any person in an appeal of 

an ALJ's decision.

§ 20.1004 Decisions on appeal.

(a) The Commandant shall review the record on appeal to determine whether the ALJ 

committed error in the proceedings, and whether the Commandant should affirm, 

modify, or reverse the ALJ's decision or should remand the case for further 

proceedings.

(b) The Commandant shall issue a decision on every appeal in writing and shall serve a 

copy of the decision on each party and interested person.