U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD, 

Complainant, 

vs. 

AARON LOUIS CHRISTIAN, 

Respondent. 

_______________________ 

Docket No: 09-0171 

CG Enforcement Activity No: 3468937

ORDER GRANTING RESPONDENT’S MOTION TO DISMISS

Issued: October 27, 2009

Issued by: HON. BRUCE TUCKER SMITH 

 Administrative Law Judge 

Appearances:

For Complainant

Bruce Davies, Esq. 

MSTC Christina L. Jeanes 

USCG Marine Safety Unit Port Arthur 

For Respondent

Craig Schexnaider, Esq. 

Conley & Schexnaider 
I. PRELIMINARY STATEMENT 

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

12 months outright suspension, followed by 24 months probation, of Respondent Aaron Louis 

Christian’s (Respondent) Coast Guard-issued Merchant Mariner’s Document (MMD) and Coast 

Guard-issued Merchant Marine License (MML) (hereinafter, collectively referred to as Coast 

Guard-issued credentials). This action is brought pursuant to the legal authority codified at 46 

U.S.C. §§7703 and the underlying regulations contained in 46 C.F.R. §5.27 and §5.33. 

The Coast Guard’s Original Complaint, filed on May 6, 2009, alleged, inter alia, that 

Respondent committed misconduct and violated a law or regulation by testing in excess of the 

Department of Transportation’s Breath Alcohol Test standards on October 14, 2008, during a 

random drug and alcohol test ordered by his employer, Higman Marine Services. On May 21, 

2009, Respondent filed an Answer to the Original Complaint wherein he denied the jurisdiction 

and factual allegations made therein and posited several affirmative defenses. 

On August 5, 2009, the Coast Guard filed an Amended Complaint removing Allegation 

No. 13 (allegation relating to a third breath alcohol test) and Count 2 (allegations relating to 

violation of law or regulation). On August 18, 2009, the Coast Guard filed a Second Amended 

Complaint removing the second charge, violation of a law or regulation, from the Amended 

Complaint. On September 8, 2009, Respondent filed an “Original Answer to Amended 

Complaint and Counter-Claim” wherein he denied both the jurisdictional allegations and factual 

allegations of the Amended Complaint. Respondent pled numerous affirmative defenses to the 

Second Amended Complaint.1

 

On September 22, 2009, this matter came on for hearing at the United States District 

Court for the Eastern District of Texas, Beaumont Division in Beaumont, Texas. The proceeding 

was conducted in accordance with the Administrative Procedure Act, as amended and codified at 
5 U.S.C. §§551-59 and Coast Guard procedural regulations located at 33 C.F.R. Part 20. Bruce 

L. Davies, Esq. and Investigating Officer MSTC Christina L. Jeanes, United States Coast Guard 

Marine Safety Detachment Port Arthur, appeared on behalf of the Coast Guard. Respondent was 

present through counsel Craig Schexnaider, Esq. 

Three (3) witnesses testified as part of the Coast Guard’s case-in-chief and the Coast 

Guard offered twelve (12) exhibits into evidence, all of which where admitted. Respondent 

cross-examined the witnesses offered by the Coast Guard and offered one (1) exhibit into 

evidence, which was admitted.2

At the outset of the second day of the hearing of this matter, Respondent filed a Motion to 

Dismiss (Motion) asserting the Coast Guard had failed to establish that the random drug and 

alcohol screen at issue herein was truly random. The court ordered briefs or responses in 

opposition to Respondent’s Motion, if any, were to be filed not later than October 9, 2009. 

Respondent was ordered to file his rebuttal thereto, if any, not later than October 23, 2009. The 

court thereupon recessed the hearing pending ruling on Respondent’s Motion to Dismiss. The 

court has received and reviewed the parties’ respective briefs and affidavits. 

Upon due consideration, Respondent’s Motion to Dismiss is hereby GRANTED for the 

reasons described infra. 

II. DISCUSSION 

Drug and alcohol testing for maritime personnel is mandated and defined in 46 C.F.R. 

Part 16, subpart B and 49 C.F.R. Part 40. In particular, 46 C.F.R. subpart B specifies five clearlydefined circumstances under which a marine employee is subject to drug and alcohol testing: 

 

1 The full procedural history of the instant matter is not reviewed herein. 

2

 Citations referencing the transcript are as follows: Transcript followed by the volume number and page 

number (Tr. at __ ). Citations referring to Agency Exhibits are as follows: Investigation Officer followed 

by the exhibit number (CG Ex. 1, etc.); Respondent’s Exhibits are as follows: Respondent followed by the 

exhibit letter (Resp. Ex. A, etc.); ALJ Exhibits are as follows: ALJ followed by the exhibit Roman 

numeral (ALJ Ex. I, etc.). 
1. Pre-employment 46 C.F.R. §16.210; 

2. Periodic 46 C.F.R. §16.220; 

3. Random 46 C.F.R. §16.230; 

4. Post-Serious Marine Incident 46 C.F.R. §16.240; and 

5. Reasonable cause 46 C.F.R. §16.250 

Drug testing of marine employees is clearly justified based upon the federal 

government’s compelling interest in protecting public safety and ensuring safety in an oftenhazardous maritime work environment. However, the court notes with particularity that the 

regulatory scheme makes no provision for a “voluntary” urinalysis or blood-alcohol test. Neither 

does Higman’s own “Policy and Procedures Manual” (Manual) identify a “voluntary” alcohol or 

blood test. Rather, that Manual only lists the same five types of employee drug/alcohol testing as 

mandated in 46 C.F.R. Part 16, subpart B. (CG Ex. 1 at 6-20; CG Ex. 4 at 2). 

Here, the Coast Guard’s Second Amended Complaint alleges that Respondent was 

chosen at random for testing on November 14, 2008, in accord with the provisions of 46 C.F.R. 

§16.230 which provides: 

The selection of crewmembers for random drug testing shall be made by a 

scientifically valid method, such as a random number table or a computer-based 

random number generator that is matched with crewmembers’ Social Security 

numbers, payroll identification numbers, or other comparable identifying 

numbers. Under the testing frequency and selection process used, each covered 

crewmember shall have an equal chance of being tested each time selections 

are made and an employee’s chance of selection shall continue to exist 

throughout his or her employment. As an alternative, random election may be 

accomplished by periodically selecting one or more vessels and testing all 

crewmembers covered by this section, provided that each vessel subject to 

the marine employer’s test program remains equally subject to selection. 

(emphasis added).3

 Plainly, 46 C.F.R. §16.230(c) requires that the means by which random selections are 

made must be by a scientifically or mathematically valid method and that each crewmember or 

vessel must have a mathematically equal chance of selection. 

 

3

 October 1, 2008 revision.
 “Randomness” is essential to a fair drug and alcohol testing process in the maritime 

industry. Absent true “randomness,” the drug and alcohol testing regimen is subject to criticism 

of favoritism. Absent true “randomness” marine employees might reasonably believe they are 

subject to individuous discrimination or targeting by an employer or that they have been 

victimized by a subterfuge to justify a warrantless search of the mariner’s bodily fluids. 

 Testimony and evidence adduced at the hearing of this matter reveal that John Barber 

Frye (Frye) is Higman’s corporate drug and alcohol representative. In that capacity, Frye 

oversees Higman’s random drug and alcohol testing policies and procedures. (Tr. at 6). (All 

citations to testimony are contained in the stand-alone transcript of Mr. Frye’s testimony.) 

 According to Frye, Higman has three offices and fifty vessels. (Tr. at 7; 16). Frye 

testified that, “on a random day, we choose a random vessel, and that vessel and/or office will be 

selected for a drug screen and everybody at that facility will be tested.” (Tr. at 6). Frye further 

testified that he rolls dice to determine the vessel or the office to be tested and then he compares 

the number rolled on the dice to a company telephone list. (Tr. at 7). 

 Frye was clear that he uses a “physical die” – two dice in fact – which are thrown to 

produce a number. He explained that if he was throwing dice for Higman offices, “a 1 or a 2 

would indicate our Houston office or Channel view office; a 3 or a 4 would be our Orange office, 

a 5 or a 6 would be our Mobile office.” (Tr. at 7). 

 Conversely, he explained that if he threw a “1 and a 5, it would be Boat 15 on the phone 

list.” (Tr. at 7 – 8). He then testified that once a number was thrown and a corresponding vessel 

or office was identified from the company phone list, everyone “oncoming” to a vessel during a 

crew changeover would be selected for chemical testing. (Tr. at 8). Frey did not explain how me 

made the initial decision to throw one die (offices) or two dice (boats/crews). 
 Frey testified that on November 14, 2008, the Higman office in Orange, Texas, was 

randomly selected for alcohol and drug testing of all oncoming crewmembers. (Tr. at 9).4 

Thereafter, Respondent was administered multiple breath alcohol tests which resulted in a 

finding leading to the instant charges. 

 Frey’s testimony, however, revealed a variety of mathematical impossibilities inherent to 

the “dice” method when selecting vessels and crews for testing as evidenced by his testimony on 

cross-examination: 

Q. By throwing two dice, how do you pick which boat out of 50? 

A. I use a phone list, and I count down the phone list. If I roll the dice and I get a 

15, I go down to the 15th boat and I select that vessel. 

* * * 

Q. How do you do Boat 17? You roll a 7? 

A. Well, basically, it will end up evening out. If I do those boats and I randomly 

select them through the dice roll. 

Q. Well, how would you . . . How do you—how do you get to Boat No. 28? Dice 

only have 1 through 6 on it. 

A. Oh, I see what you’re saying. If for some reason I’ve rolled a boat that I’ve 

done recently, I will actually roll again. And if I can get a 2-8, I will get it. 

* * * 

Q. How do you get to Boat No. 28? 

A. If—using the dice, that’s usually how I get it, sir. 

* * * 

Q. Id’ like to know. How do you get to Boat No. 18? 

A. If I roll a 1 and a 5, I will get 15. 

Q. How do you get to No. 18, 1 – 8? 

A. I’ll roll – excuse me. Sir, I just have to say that’s the way I’ve always done it. 

Q. So you don’t ever test Boat No. 18? 

A. Yes, sir. I would have to say that I did test Boat No. 18. 

Q. Okay. How do you get to Boat No. 18 with two dice. 

A. Sir, I don’t think I’ve ever explored that before. 

* * * 

Q. Do you understand that a dice only has 1 through 6 on it... 

A. Yes, sir. 

Q. On either sides of the dice. There’s no zero. There’s no 7, there’s no 8, there’s 

no 9. How do you get to Boat No. 10? 1 – 0? 

 

4

 Contrary to Respondent’s assertions, the court is satisfied Respondent was a Higman crewmember for the purposes 

of random drug testing. (Tr. at 29-31). 
A. There’s actually a website too that I use that will select random – it’s called 

random. org. 

* * * 

Q. ...When you select the boat to be tested, you throw two dice? 

A. Yes, sir. 

Q. How do you select Boats 1 through 9 or 1 through 10 with two dice? 

A. You either add the two dice or – I’ve used random.org which I’ve used dice 

and/or I have used a random selection between 1 and 50. 

Q. What helps you make the decision for you to use the physical throw or the dice 

or go to random.org? What is that decision criteria? 

* * * 

Q. Why would you go to a website as opposed to throwing the physical dice is my 

question. What is the decision-making criteria you use to either physically throw 

the dice or go to the website? 

A. Because the website has a set of dice on it, and you can click – you can pick 

five dice, you can pick two dice. 

Q. Do you physically pick up the dice and throw them, or do you use electronic 

dice on that website? 

A. I use an electronic device. 

Q. So you don’t really throw dice? 

A. I can use either one. I’ve used real dice or I’ve used random.org. 

Q. How do you know the mathematical reliability of random.org? 

A. I’ve read through their website and they stand on their statistics as far as their 

program. 

* * * 

Q. Apart from reading the website where they declare they are truly 

mathematically random, do you have any kind of verification of that? 

A. No, sir. I don’t. 

Q. Just by way of education and training, what is your education post high 

school? 

A. I have a BA in agriculture economics. 

Q. Any specific training in mathematics beyond that? 

A. No, sir. 

(Tr. at 16 – 20; 32-33). 

 The problems inherent to the “two dice method” are obvious. Recall that Frye did not 

explain his decision to throw one or two dice. That is, he did not explain how he decides to test 

either offices (1 die) or vessels (2 die). Hence, at the outset, he admits exercising personal 

choice or discretion in choosing to throw one or two die. This initial decision vitiates the notion 

of true randomness vis-à-vis the entire pool of Higman employees. 
 Next, Frye’s testimony reveals that the process by which he selects a given vessel/crew is 

fraught with human intervention. He could not explain, for instance, how “Boat 28” could be 

selected by throwing two, six-sided die. Nor could he explain how “Boats 1 – 9” could ever be 

selected using the same two die. (Query: if two dice were thrown and a “1” and a “4” came up, 

would that mean “Boat 14” or “Boat 41” or “Boat 5” would be selected?) Again, there is too 

much human discretion and intervention in this process to ensure a random selection could ever 

be made. 

 Under the Higman “two dice” selection method, neither “Boats 10, 20, 30, 40, nor 50” 

could ever be selected for crew testing, because there is no “zero” on a six-sided die. Likewise, 

neither could “Boats 17, 18, 19, 27, 28, 29, 37, 38, 39, 47, 48, 49” ever be selected either, 

because there is no “seven,” eight,” or “nine” on a six-sided die. It is problematic whether Boats 

1 through 9 could ever be chosen using two dice, either. Thus it is apparent that at least 

seventeen boats out of a fleet of fifty could never be selected for testing, absent human 

intervention and discretion. 

 Frye’s alternate explanation during his testimony that he also used an Internet web site, 

“random.org,” does not alleviate the dilemma, either. Again, Frey could not articulate the basis 

for his decision to use either physical dice or the website. Moreover, Frey could not establish an 

evidentiary foundation for the scientific reliability of the website he used. Nor does Frey have a 

sufficient academic background in mathematics or computer science to establish an evidentiary 

foundation for his reliance upon the website. 

The regulatory protections contained in 46 C.F.R. §16.230(c) require that the selection of 

crewmembers for random drug testing shall be made by a scientifically valid method. Hence, it 

was incumbent upon the Coast Guard at the hearing of this matter to establish an appropriate 

foundation that either the “dice” method or the “website” method met the criteria of scientific or 

mathematical validity, free of human intervention or discretion. 
The factual obstacles revealed by Frye’s testimony, his own involvement with the 

selection process, the numerical impossibilities inherent to the “two dice” method and the 

absence of any proof that random.org is mathematically/scientifically valid rendered this an 

impossible burden for the Coast Guard to meet. The Higman selection process was simply too 

fraught with human intervention and caprice. Hence, the test was not a “random” selection as 

contemplated by the Department of Transportation (DOT) regulations contained in 46 C.F.R. 

subpart B. 

Federal courts have recognized that DOT drug-testing administrative regulations do not 

exist in a vacuum. “Once the government requires an employer to administer random...tests to a 

certain class of workers, the Fourth Amendment is implicated; thus the ‘search’ effected by a 

...test is subject to the Fourth Amendment’s reasonableness requirement.” Skinner v. 

Railway Labor Executives’ Assoc., 489 U.S. 602, 615-617 (1989); Southern Cal. Gas Co. v. 

Util.Workers, Local 132, 265 F. 3d 787, 796 (9th Cir. 2001) (emphasis added). 

The courts have held that to excuse non-compliance with DOT regulations or to adopt a 

‘substantial compliance’ standard would undercut an individual’s Fourth Amendment rights. 

Because the employer is responsible for ensuring compliance with the DOT regulations, failure 

to comply with those regulations renders the testing procedures invalid. Util.Workers, Local 

132, supra at 795-796. 

Therefore, the court specifically finds that the selection methods employed by Higman, 

were not scientifically or mathematically valid. Each vessel in the Higman fleet was not equally 

subject to selection. Accordingly, the court further finds that Higman crewmembers did not have 

an equal, random chance of being tested each time selections were made. Thus, Respondent’s 
employer indubitably violated the clear requirements of 46 C.F.R. §16.230,5

 if not the 

“reasonableness” requirement imposed by the Fourth Amendment. 

The Coast Guard contends that because Respondent did not protest the testing, he 

essentially provided a “voluntary” sample. In support of this position, the Coast Guard filed 

three witness affidavits. For the limited purposes of the pending Motion, the court accepts as 

fact that Respondent did not protest the drug and alcohol test imposed upon him by his employer. 

However, acquiescence does not equate to voluntariness. It is questionable whether 

Respondent’s participation in the test was, in fact, “voluntary.” Higman’s clearly-stated 

corporate drug testing policy is that “Any personnel...who refuses to cooperate with the...tests 

included in this policy shall be terminated.” [sic] (CG Ex. 1 at 6-20; CG Ex. 4 at 2, CG Ex. 7 at 

68). See, Bolden v. SEPTA, 953 F.2d 807 (3d Cir. 1991). 

To reiterate, there is no circumstance or category of test called “voluntary” in the 

regulatory scheme described in 46 C.F.R. §§16.210-.250 or in the Higman corporate drug and 

alcohol policy. 

Interestingly, the Coast Guard relies upon Administrator v. Boyle, 7 NTSB 616 

(1990), which is clearly distinguishable from the case at bar. In Boyle, a helicopter pilot was 

asked to submit to an alcohol breath test upon reasonable suspicion by his employer that the pilot 

had been drinking. Evidence in that case suggested that co-workers observed the pilot had 

alcohol on his breath, which, in turn, triggered the request for what was, essentially, a 

“reasonable cause” alcohol testing. 

In the instant matter, there was no such evidence which would have supported a request 

for a “reasonable cause” test under 46 C.F.R. §16.250 or the Higman drug and alcohol policy. 

(CG Ex. 1 at 6-20; CG Ex. 4 at 2). Had there been any such evidence, such as evidence of 

 

5

 October 1, 2008 revision. 
alcohol on Respondent’s breath, slurred speech or instability while walking, a “reasonable cause” 

breath/blood test might have been authorized.6 

I am mindful, on the one hand, of the serious consequences to employees precipitated by 

random drug and alcohol testing; and, on the other hand, of the need to take steps to ensure that 

drug or alcohol related impairment does not result in potentially serious workplace accidents. 

Independent Oil Workers Union v. Mobil Oil Corp., 777 F. Supp. 391 (D. N.J. 1991). However, 

the dictates of the pertinent regulations, due process and the considerations inherent to the Fourth 

Amendment outweigh any risk Respondent may have posed on the waterways. 

III. CONCLUSION

After careful consideration of the testimony and documentary evidence offered at the 

hearing, and there being good legal cause therefore, Respondent’s Motion to Dismiss is 

GRANTED WITH PREJUDICE. 33 C.F.R. §20.311(d)(2). 

WHEREFORE, 

ORDER

 

6

 The Higman “Alcohol and Drug Screen Consent” form Respondent signed on September 6, 2005 is noteworthy. (CG Ex. 5 at 

14). There, Respondent plainly indicated his agreement to be tested for alcohol or drugs “at any time” while he was employed by

Higman. He agreed to participate in “any such test,” knowing that the use of liquor is inconsistent with health and safety 

considerations. On its face, CG Ex. 5 seems to indicate that Respondent consented to be tested at any time, any place and for any 

reason—without reference to the five clearly-defined circumstances identified in 46 C.F.R. subpart B or Higman’s alcohol policy. 

In short, the Coast Guard may assert that Ex. 5 constitutes Respondent’s “waiver” of any rights inherent to 46 C.F.R. Part 16,

subpart B and 49 C.F.R. Part 40. 

The classic definition of waiver, however, is ‘an intentional relinquishment or abandonment of a known 

right or privilege.’ Francis v. Henderson, 425 U.S. 536, 544-545 (1976). Exhibit 5 was signed more than 

three years prior to the November 14, 2008 “random” test at issue, here. Hence, Exhibit 5 cannot be 

asserted as Respondent’s “intentional relinquishment or abandonment of known rights or privileges” or of 

any rights he may have held three years later. Moreover, Exhibit 5 cannot be now advanced as evidence 

of “substantial compliance” with the clearly-defined and limited alcohol testing regimen set forth in either 

46 C.F.R. subpart B or Higman’s alcohol policy. Util.Workers, Local 132, Id. At 795-796. 

Simply stated, if either the DOT or the Coast Guard or Higman wanted to impose a blanket requirement 

that mariners be subject to drug and alcohol testing “at any time” then they were free to do so by the 

appropriate administrative rule-making process. 
IT IS HEREBY ORDERED, that Respondent’s Motion to Dismiss is GRANTED and 

the Coast Guard’s Amended Complaint is hereby DISMISSED WITH PREJUDICE. 

PLEASE TAKE NOTE that issuance of this decision serves as the parties’ right to 

appeal under 33 C.F.R. Part 20, Subpart J. A copy of Subpart J is provided as Attachment B. 

__________________________________________________ 

Bruce Tucker Smith 

Administrative Law Judge 

US Coast Guard

Date: October 27, 2009

 

 
ATTACHMENT A_ – EXHIBIT & WITNESS LIST

COAST GUARD EXHIBITS 

1. Higman Marine Policy & Procedures Manual 

2. Affidavit of Aaron Christian 

3. Aaron Christian MMLD Information Screen Shot

4. Drug, Alcohol and Contraband Policy 

5. Aaron Christian application for employment with Higman Marine—Excluding page 

27 

6. Policy & Procedures Manual Amendments

7. Higman Marine Policy & Procedures Manual, 2003

8. Active Employee Total Report

9. Crew Change Report

10. Higman Marine Policy & Procedures Distribution 

11. Vessel Logs

12. Crew Change Calendar 

COAST GUARD WITNESSES 

1. Kyle Shaw, Higman Marine 

2. Kayla McAda, Higman Marine Services 

3. John Frye, Higman Barge Lines 

RESPONDENT EXHIBITS 

W. E-mail from David Duvall to Kyle Shaw 

 

RESPONDENT WITNESSES 

 None offered 

ALJ EXHIBITS 
 None 

ALJ WITNESS LIST 

None