UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

v. 

Rockford Glyn Daire 

Respondent. 

_______________________ 

Docket Number CG S&R 08-0231 

CG Case No. 3205776 

DECISION AND ORDER

Issued: December 2, 2008

Issued by: Hon. Parlen L. McKenna

Appearances:

For Complainant 

LT Bill Fitzgerald and LT Michael Benson, 

USCG Sector Anchorage 

For Respondent 

Rockford Glyn Daire, pro se
 I. TABLE OF CONTENTS 

I. TABLE OF CONTENTS......................................................................................................... 2 

II. PRELIMINARY STATEMENT........................................................................................... 4 

A. History........................................................................................................................... 4 

B. Hearing.......................................................................................................................... 6 

1. Hearing Generally............................................................................................. 6 

2. Amended Complaint......................................................................................... 7 

3. Motion for Telephonic Testimony ................................................................... 8 

III. FINDINGS OF FACT........................................................................................................... 8 

IV. DISCUSSION....................................................................................................................... 12 

A. Burden and Standard of Proof ................................................................................. 13 

1. Generally.......................................................................................................... 13 

2. Drug Case ........................................................................................................ 13 

B. Use of or Addiction to the use of Dangerous Drugs................................................ 14 

1. Coast Guard’s Prima Facie Case .................................................................. 14 

2. Respondent’s Case .......................................................................................... 20 

i. Generally............................................................................................... 20 

ii. Old Test................................................................................................ 21 

iii. MRO Discrepancy ............................................................................. 22 

iv. Deviations from 49 CFR Part 40 ...................................................... 24 

3. Fatal Flaws....................................................................................................... 28 

4. Voluntariness................................................................................................... 30 

2
C. Misconduct.................................................................................................................. 31 

V. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW........................... 33 

VI. SANCTION.......................................................................................................................... 35 

VII. ORDER............................................................................................................................... 37 

ATTACHMENT A - LIST OF WITNESSES AND EXHIBITS ............................................ 38 

ATTACHMENT B – SUBPART J, APPEALS........................................................................ 39 

Certificate of Service................................................................................................................... 41 

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II. PRELIMINARY STATEMENT 

A. History 

The United States Coast Guard (“Coast Guard”) filed a Complaint dated May 14, 2008, 

against Rockford Glyn Daire (“Respondent”) seeking revocation of Respondent’s Merchant 

Mariners Document (“MMD”) for use of or addiction to the use of dangerous drugs under 46 

U.S.C. 7704(c) and 46 CFR 5.35. Specifically, the Complaint alleges that on November 9, 2005, 

Respondent took a Non-DOT periodic drug test as requested by Crowley Maritime Corporation; 

that Respondent’s urine specimen was collected by R&R Testing Services and analyzed by 

Quest Diagnostics; that Respondent’s specimen subsequently tested positive for Marijuana 

(THC) and was verified by Dr. Benjamin Gerson,1 a certified Medical Review Officer; and that 

the Medical Review Officer’s positive determination deems Respondent a user of a dangerous 

drug. 

The ALJ Docketing Center received Respondent’s Answer on May 14, 2008, wherein 

Respondent generally denied the Complaint, asserted that he was not a drug user, and requested a 

hearing before an Administrative Law Judge. On May 16, 2008, the Chief Administrative Law 

Judge assigned this matter to the undersigned for adjudication. 

On July 14, 2008, the Coast Guard filed a Motion for Continuance. In support thereof, 

the Coast Guard stated that the original investigator has permanently departed Sector Anchorage; 

that the Investigations Division is left with only one investigating officer; that the Coast Guard 

intends on issuing an amended complaint; that a continuance would allow Respondent more time 

to prepare his defense; and that the Coast Guard is pursuing settlement discussions with 

Respondent. Almost immediately thereafter, Respondent filed an Answer objecting to the 

 

1

 See discussion of the Coast Guard’s error in pleading with respect to this factual allegation infra Sec. IV. B. 2. iii. 

4
continuance. Respondent stated that: 

This whole matter has caused me hardship; I have lost my job, not 

able to work in my field of experience. The Coast Guard has had 

since April 27, 2007 to take action against me. I feel I have not 

had a right to a speedy Administrative Hearing. 

On July 15, 2008, the Coast Guard’s Motion for Continuance was denied. 

On July 21, 2008, the Coast Guard filed an Amended Complaint seeking revocation of 

Respondent’s document. The Amended Complaint again alleges that Respondent used or was 

addicted to the use of dangerous drugs under 46 U.S.C. 7704(c) and 46 CFR 5.35. The Amended 

Complaint also adds a Misconduct charge for violation of Crowley Maritime’s company policy 

under 46 U.S.C. 7703(1)(B) and 46 CFR 5.27.2

In support of the Misconduct charge for violation of Crowley Maritime’s company 

policy, the Coast Guard alleges that Respondent was acting under the authority of his document 

when Crowley Maritime required Respondent to take a periodic drug test as a condition of 

employment; and that the Medical Review Officer’s positive determination deems that 

Respondent had used Marijuana in violation of said company policy. 

On July 21, 2008, the ALJ Docketing Center received Respondent’s Amended Answer3

wherein he generally denied the Amended Complaint and requested an administrative hearing. 

 

2

 In the Amended Complaint, the Coast Guard mistakenly described the statutory authority contained in 46 U.S.C. 

7703(1)(B) as “Conviction for a Dangerous Drug Law Violation.” At the hearing, Respondent pointed out this error 

and the Coast Guard agreed to strike this statutory authority. It was thus stricken. Upon later review, it was 

determined that 46 U.S.C. 7703(1)(B) was the correct statutory authority for this charge but that the Coast Guard 

had simply entered an incorrect description thereof on the Amended Complaint. Given that 46 U.S.C. 7703(1)(B) 

refers to “Incompetence, Misconduct, or Negligence,” the Amended Complaint shall again contain this statutory 

authority and the correct description thereof to support the Misconduct Charge. Despite this error in pleading, the 

factual allegations contained in the charge for Misconduct were “adequate to enable the respondent to identify the 

act or offense alleged so that a defense can be prepared.” Appeal Decision 2585 (COULON) (1997). 3

 Respondent did not sign the original Amended Answer, but signed it at the hearing on August 6, 2008. Tr. at 7. 

5
On July 21, 2008, the Coast Guard filed a Motion for Telephonic Testimony and 

submitted its witness and exhibit list (with attachments). On July 25, 2008, the Coast Guard 

filed a Motion to Amend Discovery (with attachments) to include additional exhibits. The 

undersigned reserved ruling on these Motions until the hearing because there was insufficient 

time for Respondent to file his Answer prior to the hearing. 

B. Hearing 

1. Hearing Generally 

On August 6, 2008, the hearing commenced in Anchorage, AK. Both parties appeared 

and presented their case. Lieutenant Bill Fitzgerald and Lieutenant Michael Benson appeared for 

the Coast Guard and Respondent appeared pro se. Mr. Dewayne Harris accompanied 

Respondent at his table, but did not act in a representative capacity. Three (3) witnesses testified 

as part of the Coast Guard’s case in chief. The Coast Guard offered eleven (11) exhibits into 

evidence, all of which were admitted. 

At the hearing, Respondent testified on his own behalf and cross examined several Coast 

Guard witnesses. Respondent offered five (5) exhibits for admission into evidence, all of which 

were admitted. 

In addition to the scheduled witnesses, the parties mutually agreed to call two (2) 

additional witnesses whose testimony became relevant as the hearing proceeded. 

At the conclusion of the hearing, each party was informed that they may file briefs with 

proposed findings of fact and conclusions of law; that any such filings are due by the close of 

business thirty (30) days from receipt of the transcript; and that settlement discussions may 

continue and are encouraged until the Decision and Order is issued. On October 12, 2008, the 

6
Coast Guard filed its post hearing brief. Respondent did not exercise his right to file a brief. To 

date, no settlement has been reached. 

2. Amended Complaint 

At the beginning of the hearing, the undersigned addressed whether the Amended 

Complaint would be allowed. Respondent was then given an opportunity to amend his Amended 

Answer to admit the jurisdictional elements contained therein. Respondent indicated that the 

listed address was correct; that he holds the MMD in question; and that the Coast Guard has 

jurisdiction over him. Tr. at 11-12. Respondent, however, made clear that he did not want to 

admit the offenses charged or any guilt with respect to the Amended Complaint. Tr. at 12-13. 

The undersigned reassured Respondent that admitting the jurisdictional allegations was not in 

any way an admission of guilt. Tr. at 9-13. 

The undersigned next reviewed the numbered factual allegations contained in the 

Amended Complaint. With respect to the factual allegations regarding Use of Dangerous Drugs, 

Respondent stipulated to the following numbered factual allegations: 

1. On November 9, 2005 Respondent took a periodic drug test; 

2. A urine specimen was collected by R&R testing Services; and 

3. Respondent signed a Forensic Drug Testing Custody and Control Form. 

Respondent then renewed his previous denials of factual allegations four through seven. 

Specifically, Respondent denied: 

4. The urine specimen subsequently tested positive for Marijuana Metabolites; 

5. The test results were subsequently verified positive for Marijuana Metabolite by Dr. 

Benjamin Gerson, a certified Medical Review Officer; and 

7
6. The Medical Review Officer’s positive determination deems Respondent had used 

Marijuana in violation of 46 USC 7704 and 46 CFR 5. 35. 

With respect to the factual allegations underlying the Misconduct charge, Respondent 

renewed his previous denial. 

3. Motion for Telephonic Testimony 

Finally, the undersigned addressed the Coast Guard’s pending Motion for Telephonic 

Testimony. After having an opportunity to review this Motion, Respondent did not object and 

the Motion was granted. Tr. at 10. 

III. FINDINGS OF FACT 

1. Rockford G. Daire, the Respondent herein, was at all times the holder of Merchant 

Mariner Document (“MMD”) No. 011521. Tr. at 6. Respondent’s Document expires on 

June 6, 2008. Tr. at 6. The document authorizes him to serve as: Able Body SeamanUnlimited; Wiper; Steward’s Department (Food Handler); Tank-PIC; and (Barge-DL). 

Tr. at 6; 

2. On May 14, 2008, the Coast Guard filed a Complaint against Respondent’s MMD 

alleging use of or addiction to the use of a dangerous drug (THC-Marijuana metabolites). 

See Record; 

3. Respondent was fully advised of his right to counsel and stated on the record that he 

wished to proceed pro se. Tr. at 6; 

4. On May 14, 2008, Respondent filed an Answer to the above-noted charge and denied the 

jurisdictional and factual allegations therein. IO Ex. 11; 

5. On July 21, 2008, the Coast Guard filed an Amended Complaint against Respondent’s 

MMD alleging use or addiction to the use of a dangerous drug (THC-Marijuana 

metabolites) and for Misconduct for violation of Crowley Maritime’s company policy. 

IO Ex. 10; 

6. On July 21, 2008, Respondent filed an Amended Answer to the above-noted charges and 

denied the jurisdiction and factual allegations therein. IO Ex. 10; 

7. At the August 6, 2008 hearing, Respondent changed his plea with respect to the charge 

for use or addiction to the use of dangerous drugs to admit to the jurisdictional allegations 

and the first three specifications of the factual Amended Complaint - - that on November 

9, 2005, Respondent took a periodic drug test, that a urine specimen was collected by 

8
R&R Testing Services, and that Respondent signed a Forensic Drug Testing Custody and 

Control Form. Tr. at 6-10. Respondent maintained his previous denial of factual 

specifications four (4) through (6) with respect to this charge. Tr. at 6-10; 

8. At the August 6, 2008 hearing, Respondent maintained his previous denial of all the 

factual allegations with respect to the charge for violation of Crowley Maritime’s 

company policy. Tr. at 6-10; 

9. Respondent’s urine specimen was collected by Ms. Rhonda Wade of R&R Testing 

Services on November 9, 2005. Tr. at 11-13, 20-25. Ms. Wade meets the requirements 

of a collector under 49 CFR Part 40. See Tr. at 10, 20-25. Ms. Wade’s business practice 

is to always conduct collections in accordance with 49 CFR Part 40. Tr. at 25-56. 

Respondent’s urine specimen was collected in substantial accordance with all DOT 

guidelines and requirements contained in 49 CFR Part 40. See Tr. at 10, 20-25. 

Procedures Ms. Wade followed include, but are not limited to, the following: 

a. The collector verified the identity of Respondent, the specimen provider. See Tr. 

at 20-21; 

b. Ms. Wade processed Respondent’s sample on non-federal custody and control 

forms that were in substantial accordance to those approved under 49 CFR Part 

40. Tr. at 24. The only significant difference between the form Ms. Wade used 

and DOT approved forms is that the former includes the donor’s name and social 

security number. Tr. at 25; IO Ex. 1. The DOT approved forms convert this 

information to numeric designations. See Tr. at 25; 

c. Following collection, Ms. Wade checked the temperature of Respondent’s 

specimen and ensured the sample measured within the appropriate temperature 

range. See Tr. at 20-21; 

d. Ms. Wade took a single sample. Tr. at 24. The testing laboratory has the 

capability to retest a sample because positive samples or portions of positive 

samples remaining after testing are stored for at least 13 months. Tr. at 40 & 44. 

In this case, Quest Diagnostics still has the sample. However, the record does not 

indicate that Respondent requested a retest. Tr. at 44; 

e. Ms. Wade sealed the specimen bottle in Respondent’s presence. See Tr. at 20-21; 

f. Respondent initialed the seal on the specimen. See Tr. at 20-21; 

g. Ms. Wade completed the Custody and Control form with Respondent’s 

information. See Tr. at 20-21; IO Ex. 1; 

9
h. Respondent signed a Forensic Custody and Control Form during the drug test that 

reads at step 5: 

I certify that I provided my urine specimen to the collector; that I 

have not adulterated it in any manner, each specimen bottle used 

was sealed with a tamper-evident seal in my presence; and that the 

information and numbers provided on this form and the label 

affixed to each specimen bottle is correct. 

IO Ex. 1; See Tr. at 20-21; 

i. Each Custody and Control Form contains a section for donor name and donor 

social security or tax identification number. IO Ex. 1; and see Tr. at 24-25; 

10. Ms. Wade’s testimony is found to be credible. Tr. at 20-24; 

11. R&R Testing Services sent Respondent’s specimen to Quest Diagnostics. Tr. at 35; 

12. Quest Diagnostics is a duly certified DOT testing laboratory; it is a secure facility; and 

has a policy that all records are protected; the chain of custody is always maintained; a 

specimen would be rejected if there were any signs of tampering or compromise; and it 

processes every sample in accordance with the requirements of 49 CFR Part 40. Tr. at 

37-52; 

13. Quest Diagnostics received Respondent’s urine specimen via courier on November 12, 

2005. IO Ex. 2 at 2-5; 

14. The sample urine specimen bottle arrived in a sealed package with seals intact. See Tr. at 

41; 

15. Quest Diagnostics tested Respondent’s urine specimen in accordance with DOT 

guidelines. See Tr. at 42-52; 

16. The chain of custody for Respondent’s specimen was intact. See Tr. at 24, 40-42, 63-64; 

IO Ex. 1-3; 

17. The Testing Laboratory used an Olympus Analyzer, which is a large automated 

spectrometer that uses re-agents to detect the presence of drugs, to initially test 

Respondent’s sample. Tr. at 47. The instrument is calibrated on each day of use and a 

series of controls are run with each batch of specimens to verify that calibration. Tr. at 

47. All quality control data was within the acceptable limits before the laboratory 

accepted the results of Respondent’s initial drug screening. Tr. at 48. The initial drug 

screening of Respondent’s urine detected the presence of marijuana metabolite (THC) 

above the cutoff level. Tr. at 48-49; IO Ex. 2; 

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18. A confirmatory test verified the presence of marijuana metabolite (THC), above the 

cutoff level of 15 ng/ml. Tr. at 47-48. The actual results were 55 ng/ml. Tr. at 49; IO 

Ex. 2; 

19. Quest Diagnostics performed the confirmatory test in accordance with 49 CFR Part 40 

utilizing gas chromatography mass spectrometry. Tr. at 48-49; 

20. Only marijuana or other prohibited substances containing THC could cause these results. 

Tr. at 51-52; 

21. Dr. Louis Jambor, laboratory director for Quest Diagnostics, testified in the proceeding as 

the person in charge of quality assurance. Tr. at 35-36. Dr. Jambor testified that 

Respondent’s sample was tested in accordance with all federal regulations and that both 

the initial and confirmatory tests were positive for marijuana metabolite (THC). Tr. at 

42, 47-48; 

22. The testimony of Dr. Jambor is found to be credible. Tr. at 36-46; 

23. Quest Diagnostics reported the positive drug test to Dr. Randy Barnett, a medical review 

officer who contacted Respondent on November 14, 2005. IO Ex. 5. Respondent denied 

using marijuana, and could not offer a medical or otherwise legitimate reason for the 

positive drug test results. See Entire Record; 

24. Dr. Barnett relied on his handwritten notes on the MRO worksheet to refresh his memory 

in affirming that he called Respondent about the positive test results. Tr. at 64; 

25. The Testimony of Dr. Randy Barnett is found to be credible. Tr. at 62-70; 

26. Dr. Benjamin Gerson owned the MRO laboratory employing Dr. Randy Barnett at the 

time in question. Tr. at 88. According to the MRO laboratory’s policy in effect at that 

time, Dr. Gerson’s name was automatically stamped on every MRO Final Report in the 

field for MRO by virtue of him owning the laboratory. Tr. at 89-96. This was a 

formality and the actual MRO for any given sample was displayed on the MRO 

Worksheet. Id.; 

27. The testimony of Dr. Gerson is found to be credible. Tr. at 88-93; 

28. The testimony of Melissa Liberatore – Dr. Barnett’s nurse assistant – is found credible. 

Tr. at 93-96; 

29. The Coast Guard’s error in pleading with respect to the identity of the MRO was a 

clerical error. IO Ex. 10 at 2; 

30. There were no “fatal flaws” present during the collection or testing procedure for 

Respondent’s specimen. See Entire Record, See 49 CFR 40.83(c)-(d); 40.199(a)-(b); 

11
31. There is no convincing record evidence indicating that Respondent ever objected to the 

test or felt forced to comply with the urinalysis at issue in this case. See Entire Record; 

32. Respondent’s employer at the time of this incident was Crowley Maritime. Tr. at 17; 

33. Crowley Maritime had an employee policy which, among other things, required drug 

tests in a variety of situations and proscribed that an employee would be discharged if 

found to be in violation of the policy. IO Ex. 8; 

34. Respondent signed an agreement/waiver of rights concerning the company policy at issue 

in this case. IO Ex. 7; 

35. An Alaska employee rights tribunal (“Tribunal”) declared Crowley Maritime’s company 

policy invalid. Resp’t Ex. E; 

36. The Tribunal further declared that Respondent could not be terminated from his 

employment for what it defined as misconduct because of the policy’s inherent invalidity. 

Resp’t Ex. E. 

IV. DISCUSSION 

This Suspension and Revocation proceeding is remedial in nature and is “intended to help 

maintain the standards of competence and conduct essential to the promotion of safety at sea.” 

46 CFR 5.5. The Commandant delegated to Administrative Law Judges the authority to suspend 

or revoke a license, certificate, or merchant mariner’s document for violations arising under 46 

U.S.C. 7703 and 7704. See 46 CFR 5.19. Here, the Coast Guard charged Respondent under 46 

U.S.C. 7704(a) and 46 CFR 5.35 alleging his use of dangerous drugs. The Coast Guard also 

charged Respondent under 46 U.S.C. 7703(1)(B) and 46 CFR 5.27 alleging Misconduct for 

violation of a company policy prohibiting drug use. The Coast Guard seeks revocation of 

Respondent’s merchant mariner’s document. 

It is important to note that determining the weight of the evidence and making credibility 

determinations as to the evidence is within the sole purview of the Administrative Law Judge. 

See Appeal Decision 2640 (PASSARO) (2003). Also, the Judge is vested with broad discretion 

in resolving inconsistencies in the evidence, and findings do not need to be consistent with all of 

12
the evidence in record as long as there is sufficient evidence to reasonably justify the findings 

reached. Appeal Decisions 2640 (PASSARO) (2003); 2639 (HAUCK) (2003). 

A. Burden and Standard of Proof

1. Generally 

The Coast Guard has the burden of proving the allegations of the Complaint by a 

preponderance of the evidence. 33 CFR 20.701-702. See also Appeal Decision 2468 (LEWIN)

(1988); 2477 (TOMBARI) (1988); Dept. of Labor v. Greenwich Collieries, 512 U.S. 267 (1994). 

To prevail under this standard, the Coast Guard must establish that it is more likely than not that 

Respondent committed the violations alleged in the Complaint. See 33 CFR 20.701-702(a). See

also Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983). To satisfy the burden of 

proof, the Coast Guard may rely on direct and/or circumstantial evidence. See generally, 

Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764-765 (1984). This proceeding was 

conducted under the provisions in 33 CFR Parts 20, 46 CFR Part 5, and the Administrative 

Procedure Act, 5 U.S.C. 551 et. seq. 

2. Drug Case 

The law is well settled that in order “to prove use of a dangerous drug, the Coast Guard 

must establish a prima facie case of drug use by the mariner.” See Appeal Decisions 2662 

(VOORHEIS) (2007), 2657 (BARNETT) (2006), and 2592 (MASON) (1997). Furthermore, 

when the Coast Guard’s case is based solely upon urinalysis test results, a prima facie case can 

be made if, and only if, the Coast Guard initially establishes the three required elements set forth 

below. See Appeal Decision 2662 (VOORHEIS) (2007). 

If the Coast Guard makes its prima facie case, it is at this point that a presumption arises 

that Respondent used dangerous drugs and the burden of going forward to produce persuasive 

13
evidence in rebuttal then shifts to Respondent. See 46 CFR 16.201(b), Appeal Decisions 2603 

(HACKSTAFF) (1998); 2592 (MASON) (1997), 2589 (MEYER) (1997), 2584 

(SHAKESPEARE) (1997), and 2379 (DRUM) (1985). If Respondent does not produce 

persuasive evidence in rebuttal, the Administrative Law Judge may find the allegation of 

dangerous drug use proved on the basis of this presumption alone. See 33 CFR 20.703, Appeal 

Decisions 2662 (VOORHEIS) (2007), 2603 (HACKSTAFF) (1998). 

As discussed below, the Coast Guard initially met its burden and established all required 

elements of a prima facie case. A presumption therefore arose that Respondent used dangerous 

drugs and the burden of going forward shifted to Respondent. After careful consideration of the 

testimony at the hearing and of the entire record, I find that Respondent failed to rebut this 

presumption. The Coast Guard therefore established that it is more likely than not that 

Respondent used or was addicted to the use of dangerous drugs. This charge is therefore found 

PROVED. 

B. Use of or Addiction to the use of Dangerous Drugs 

 1. Coast Guard’s Prima Facie Case

To establish a prima facie case based solely on a urinalysis test, the Coast Guard must 

show that (1) the Respondent was tested for a dangerous drug, (2) the Respondent tested positive 

for a dangerous drug, and (3) the test was conducted in accordance with 49 CFR Part 40. Appeal 

Decisions 2662 (VOORHEIS) (2007), 2603 (HACKSTAFF) (1998), 2598 (CATTON) (1998), 

2592 (MASON) (1997), 2589 (MEYER) (1997), 2584 (SHAKESPEARE) (1997), and 2583 

(WRIGHT) (1997). These elements will be discussed in turn. 

14
a. Respondent Was Tested 

With respect to the first element, the Coast Guard demonstrated that Respondent was the 

one that took the drug test on the day in question. Proof of this element “involves proof of the 

identity of the person providing the specimen; proof of a link between the respondent and the 

sample number . . . which is assigned to the sample and which identifies the sample throughout 

the chain of custody and testing process; and proof of the testing of the sample.” See Appeal 

Decisions 2662 (VOORHIES) (2007), 2657 (BARNETT) (2006), and 2603 (HACKSTAFF)

(1998). 

In the instant case, Respondent does not dispute this fact. At the hearing, Respondent 

stipulated that on November, 9, 2005, R&R Testing Services (“Collection Facility”) collected his 

urine as part of a periodic drug test. Tr. at 11-13. Furthermore, the Coast Guard produced the 

Forensic Drug Testing Custody and Control Form (“CCF”) for which Respondent’s signature 

and social security number appeared. See IO Ex. 1, 3, & 4. Respondent stipulated that he signed 

this form, which indicates that it was Respondent that appeared at the Collection Facility on 

November 9, 2005, for a urinalysis test. See Tr. at 11-13. 

 b. Respondent Urine Specimen Tested Positive for Marijuana Metabolites 

 The Coast Guard showed that Respondent’s sample screened positive for marijuana 

metabolites. To prove this fact, the Coast Guard called Dr. Louis Jambor. Dr. Jambor was the 

director of Quest Diagnostics, which is the testing laboratory that tested Respondent’s sample. 

See Tr. at 35-36; IO Ex. 4. Dr. Jambor testified that Respondent’s sample indeed tested positive 

for marijuana in both an initial test and a confirmatory test. Tr. at 47-50. 

Dr. Jambor indicated that the initial test was processed with an Olympus Analyzer, which 

he described as a large automated spectrometer that uses re-agents to detect the presence of 

15
drugs. Tr. at 47. He indicated that the instrument is calibrated on each day of use and that a 

series of controls are run with each batch of specimens to verify that calibration. Id. He further 

indicated that all quality control data was within the acceptable limits before the laboratory 

accepted the positive results of this analysis. See Id. 

 Dr. Jambor then outlined the process for the confirmatory test. He indicated that when 

Respondent’s sample screened positive in the initial test, the Testing Laboratory discarded the 

original aliquot and then went back to the original specimen to retrieve a new aliquot for the 

confirmatory test, as is laboratory procedure for any sample that tests positive for drugs. Tr. at 

48. He further indicated that laboratory personnel re-verified all the identifying parameters on 

the sample before pouring a separate aliquot for the confirmation. Id. Dr. Jambor indicated that 

Respondent’s sample was then processed for the confirmatory test with a gas 

chromatography/mass spectrometry (“GC/MS”), which he described as the best tool science has 

to offer for this process. See Tr. at 48-49. Dr. Jambor affirmed that the CG/MS revealed that 

Respondent’s sample contained marijuana metabolites at a rate of 55 nanograms per milliliter 

whereas the cut off is 15 nanograms per milliliter. Tr. at 49. He further indicated that only 

marijuana or other prohibited substances containing THC could cause the positive results at issue 

in this case. Tr. at 51-52. Dr. Jambor testified as to other scientific information leading to his 

conclusion that Respondent’s sample tested positive for marijuana metabolites. Tr. at 37-54. Dr. 

Randy Barnett was the MRO and verified the positive results.4 See Tr. at 61-64. Respondent 

was unable to offer a medical explanation for the presence of marijuana metabolite in the sample. 

See Tr. at 81. This element of the Coast Guard’s prima facie case is found proved. 

 

4

 Note that in the Coast Guard’s pleadings it listed Dr. Benjamin Gerson as the MRO. As discussed infra IV. B. 2. 

iii., this is a mistake resulting from Dr. Gerson’s name being stamped on every MRO form during a certain period 

by virtue of him owning the laboratory. Tr. at 94. Despite this non-fatal flaw, I find that it was Dr. Barnett, not Dr. 

Gerson that was the MRO on this case. 

16
c. In Accordance With 49 CFR Part 40 

Finally, the Coast Guard showed that Respondent’s urinalysis was processed in 

accordance with 49 CFR Part 40.5 Curiously, the Coast Guard indicated during opening 

statements at the hearing that the urinalysis test in question was not a “DOT” or “Part 40” test. 

Tr. at 15. At that point, the undersigned posed the question to the Coast Guard of whether it was 

“familiar with the effect of not using a DOT test,” and the Coast Guard replied that it would 

“lose the presumption.” Tr. at 15. The Coast Guard’s statements are apparently rooted in the 

fact that Respondent’s urinalysis was administered and processed with non-federal forms and 

that a split sample was not taken at the collection facility. 

While the Coast Guard stopped short of stipulating that it would lose the presumption or 

that the test was not done in “accordance with” Part 40, it is worth noting that a stipulation to this 

effect would have no force. These are clearly questions of law and parties’ stipulations thereto 

would be inoperative and not binding since a court cannot be controlled by agreement of counsel 

on a subsidiary question of law. Swift & Co. v. Hocking Valley Ry., 243 U.S. 281, 289-90 

(1917) (citations omitted); see also Appeal Decision 2268 (HANKINS) (1981). The Coast 

Guard’s representations as to the state of the law with respect to these issues are rejected on their 

face and given no weight. 

After careful consideration of past Commandant Decisions, it is clear that the Coast 

Guard’s restatement of the law related to this element is misguided anyway. The relevant 

question here is whether the urinalysis test was actually conducted in substantial accordance with 

49 CFR Part 40, and the question of whether the test is loosely referred to as a Part 40/DOT test, 

 

5

 For the purpose of the Coast Guard establishing a prima facie case, the Coast Guard sufficiently established that 

the test was in all material respects in compliance with 49 CFR Part 40. Respondent calls this fact into question in 

his rebuttal, and this will be discussed later in this Decision and Order. 

17
done with federal or non-federal forms, or whether a split sample was taken is not dispositive. 

See Appeal Decision 2662 (VOORHEIS) (2007). 

Despite the Coast Guard’s representation then, the test will be analyzed, compared to, and 

contrasted with what is required under 49 CFR Part 40 to determine whether or not it was done 

in substantial accordance therewith. The question of whether there will be a presumption of drug 

use will flow from this analysis. 

With respect to this element, the Coast Guard offered proof of the collection process, 

proof of the chain of custody, proof of the qualifications of the laboratory and individuals 

involved, and proof of how and with what equipment Respondent’s sample was tested. Coast 

Guard witness Ms. Rhonda Wade testified that she collected Respondent’s specimen in 

accordance with 49 CFR Part 40. See Tr. at 22. She did not have a specific recollection of 

Respondent’s sample, but indicated that it is her uniform business practice to conduct all 

collections in accordance with 49 CFR Part 40. See Tr. at 25-26. Ms. Wade noted that this was 

not a federal drug test in that the forms were different and that a split specimen was not 

collected. See Tr. at 24. With respect to the forms, she said the only differences between the 

form used in this test and those used in a federal test is that the donors name cannot appear on the 

federal form, whereas on the form used in this collection, there was a space for Respondent’s 

name. See Tr. at 24. She indicated that this difference related to privacy and had nothing to do 

with the chain of custody. See Tr. at 25. 

Ms. Wade’s testimony was that she always collects specimens in accordance with 49 

CFR Part 40 was sufficient and there need not be a specific recollection of Respondent or 

Respondent’s actual sample. In any case, Respondent stipulated that the collection was done 

properly. See Tr. at 20-22. 

18
The Coast Guard next called Dr. Louis Jambor, the laboratory director at Quest 

Diagnostics. Tr. at 35-36. Dr. Jambor is also in charge of quality assurance for Quest 

Diagnostics. Tr. at 35-36. During his testimony, Dr. Jambor indicated that this laboratory is a 

duly certified DOT testing laboratory; that it is a secure facility; that specimens and records are 

kept secure at all times; that the chain of custody is always maintained; that a specimen would be 

rejected if there were any signs of tampering or compromise; and that the laboratory processes 

every sample in accordance with the requirements of 49 CFR Part 40. Tr. at 37-52. Dr. Jambor 

elaborated on the specifics of how the laboratory tests specimens and that Respondent’s test was 

not treated differently. See Tr. at 37-52. It was clear from Dr. Jambor’s testimony that the 

laboratory tested Respondent’s sample properly and in accordance with 49 CFR Part 40. See Tr. 

at 37-52. 

In presenting its case, the Coast Guard pointed out that there were several possible 

distinctions between how this test was conducted and what is required under 49 CFR Part 40. 

Specifically, the Coast Guard indicated that Respondent’s sample was not split into two aliquots 

at the collections facility, that DOT forms were not used, and that this test did not require the 

MRO to be in the presence of the form when verifying the test results. Instead, the Coast Guard 

acknowledged that the collection facility simply sent the single specimen to the testing 

laboratory for processing and that the entire process was done with non-federal forms. The 

record is unclear as to whether the MRO had the CCF when verifying the results – a fact that is 

to be held against the Coast Guard. 

It is well established that minor technical violations of 49 CFR Part 40 that do not 

impugn the chain of custody or the specimen’s integrity, do not invalidate the test. Appeal 

Decisions 2668 (MERRILL) (2007); 2633 (MERRILL) (2002); and 2603 (HACKSTAFF) 

19
(1998). While these requirements are important, I fail to see how these discrepancies would 

impugn the chain of custody or the specimen’s integrity and nothing was presented or apparent 

from the record to indicate otherwise. On the contrary, Ms. Wade and Dr. Jambor testified as to 

the rigorous safeguards that were observed at the collection facility and the testing laboratory to 

protect these interests for Respondent’s sample. Tr. at 22-26 & TR. AT 40-44. The fact remains 

that the fundamentals of the test were done in accordance with 49 CFR Part 40 and the record is 

clear that the specimen’s integrity and the chain of custody were preserved. 

I therefore find that the Coast Guard has established all three required elements of its 

prima facie case and that the corresponding presumption is invoked that Respondent used 

dangerous drugs. The burden of going forward now shifts to Respondent to rebut this 

presumption. 

2. Respondent’s Case 

 i. Generally 

Respondent may rebut this presumption with persuasive evidence that (1) calls into 

question any element of the prima facie case; (2) indicates an alternative medical explanation for 

the positive test result; or (3) indicates the use was not wrongful or not knowing. Appeal 

Decision 2560 (CLIFTON) (1995), appeal dismissed sub. Nom. Commandant v. Clifton, NTSB 

Order No. EM-180 (1995). Respondent generally denied ever using marijuana and stressed that 

he has successfully worked in the maritime industry for twenty (20) years and has had countless 

negative random drug screenings during that period. Tr. at 16. Respondent also presented 

evidence that he underwent a private drug screening process within a few days of learning of the 

positive test result in this case and that the private drug screening was negative for Marijuana. 

Tr. at 102. These were not, however, his sole bases for his defense. Respondent instead focused 

20
his defense and arguments on objecting to the Coast Guard’s delay in bringing this action; 

alleging a discrepancy regarding the identity of the MRO; and on calling into question an 

element of the Coast Guard’s prima facie case. Specifically, Respondent called into question 

whether the test conformed to 49 CFR Part 40. 

ii. Old Test 

 Respondent first asserted what could be considered an affirmative defense indicating that 

the test in question is several years old. Tr. at 17. Pursuant to 33 CFR 20.702, Respondent 

“bears the burden of proof” in asserting his affirmative defense. Appeal Decision 2640 

(PASSARO) (2003). In this case, Respondent testified that his employer immediately terminated 

his employment upon receiving the positive test results in 2005, but asserted that the Coast 

Guard “just decided to take action” on this drug screening that was nearly three years later. Tr. 

at 17. 

A careful review of 49 CFR Part 40 reveals that it does not impose an expiration period 

for positive test results. Furthermore, there is no statute of limitation for the Coast Guard to 

initiate a suspension and revocation proceeding based on use or addiction to the use of dangerous 

drugs. See 46 U.S.C. 7704(c); 46 CFR 5.55(a)(1). Instead, Coast Guard regulations expressly 

authorize that service can be effectuated at “any time” in cases such as this. See Id. 

That being said, the fact that the Coast Guard waited at least two and a half years is at 

least irregular. This could raise the doctrine of laches, which may be applied in these 

proceedings when there has been an inexcusable delay in commencing an action resulting in 

prejudice to Respondent. Appeal Decisions 2566 (WILLIAMS) (1995), 2385 (CAIN) (1985). 

Inexcusable delay may be found where the record shows intentional misconduct or oppressive 

design by the government. Id. While the reason for the delay remains unclear, Respondent 

21
offered little more than a general objection thereto and did not produce anything to indicate 

intentional misconduct or oppressive design by the government. See Entire Record. 

Furthermore, a careful review of the entire record reveals that Respondent was not in any way 

prejudiced by the delay. Id. Respondent had what appeared to be a fresh recollection of the 

collection and testing procedure and was able to produce numerous records and other evidence in 

support of his position. Id.

Respondent simply did not meet his burden of proof with respect to his affirmative 

defense relating to the Coast Guard’s delay in bringing this proceeding. This defense is therefore 

rejected. 

 iii. MRO Discrepancy 

 Respondent next asserted that there was “[i]nconsistent information from the testing lab” 

involving the identity of the MRO. Tr. at 16. Specifically, Respondent indicated that Dr. 

Benjamin Gerson was the MRO that notified him of the positive test results, not Dr. Randy 

Barnett as the Coast Guard alleged at the hearing. Tr. at 17-19. Respondent argues that because 

“this error occurred at the testing laboratory, it does call into question the integrity of the sample 

results.” Tr. at 16. 

 Indeed, the MRO Final Worksheet displays the name Dr. Benjamin Gerson as the MRO 

whereas the MRO Worksheet displays Dr. Randy Barnett as the MRO. IO Ex. 5; IO Ex. 6. To 

further complicate and as previously discussed supra note 4, the Coast Guard listed Dr. Gerson 

as the MRO in its Amended Complaint. IO Ex. 10 at 2. However, there was credible testimony 

at the hearing explaining this perceived anomaly. 

Dr. Gerson owned the MRO laboratory and explained his laboratory’s policy for filling 

out these forms. Tr. at 88-96. He indicated that it was laboratory policy for his name to be 

22
automatically stamped on every MRO Final Report as MRO regardless of who actually 

performed the function of MRO because he owned the laboratory. Tr. at 89-91. 

To further explore this issue, Ms. Melissa Liberatore was called to testify. Tr. at 92. Ms. 

Liberatore was Dr. Barnett’s nurse assistant and was familiar with the way in which the MRO 

laboratory filled out its forms. Tr. at 92. Ms. Liberatore’s testimony was that Dr. Gerson’s name 

appearing on every MRO Final Report was merely a formality and that the actual person who 

performed the duty of MRO appears on the MRO Worksheet. Tr. at 95-97. That person is Dr. 

Randy Barnett. IO Ex. 5. 

 When questioned at the hearing, Dr. Barnett testified that he did not remember calling 

Respondent to inform him of the positive test results, but nevertheless affirmed that he had done 

so. Tr. at 64 -66. Dr. Barnett relied on hand written notes in his handwriting indicating this on 

the MRO Worksheet. Tr. at 64; see IO Ex. 5. He indicated that he indeed called Respondent 

with the positive test results and acted as MRO in this case. Tr. at 64. 

In support of Respondent’s position that Dr. Gerson was the MRO (not Dr. Barnett), 

Respondent indicated that the person who called him about the positive test results asked him 

when was the last time he “smoked dope.” Tr. at 66. Respondent cross examined Dr. Barnett at 

the hearing as to whether he recalls this conversation and whether he uses such terminology 

when contacting donors. Tr. at 66. Dr. Barnett indicated that he would not have used such 

terminology, but again indicated that he did not remember the conversation. Tr. at 66. Instead, 

Dr. Barnett relied on the hand written notes in affirming that he was the MRO and the person 

that contacted Respondent about the positive test results. Tr. at 64; see IO Ex. 5. 

 When questioned at the hearing regarding the identity of the MRO, Dr. Gerson affirmed 

that he was not the MRO who contacted Respondent. Tr. at 88-92. Dr. Gerson indicated that he 

23
was not performing MRO duties at the time Respondent was contacted and that Respondent’s 

name was not familiar to him. Tr. at 89. Dr. Gerson further testified that Dr. Barnett and others 

were performing this functionality at the time Respondent was contacted. Tr. at 89. 

 I find the testimony of Dr. Barnett, Dr. Gerson, and Ms. Liberatore credible that Dr. 

Barnett was indeed the MRO for Respondent’s sample and that Dr. Gerson’s name appearing on 

the MRO Final Report was just a formality. This finding is further supported by Dr. Barnett’s 

handwritten notes to this effect appearing on the MRO Worksheet. IO Ex. 5. 

Despite this perceived anomaly, I do not find that the laboratory produced inconsistent 

information which would call into question the integrity of the positive test results. Furthermore, 

I find that the Coast Guard’s error in pleading (i.e. erroneously listing Dr. Gerson as the MRO 

instead of Dr. Barnett) was nothing more than a clerical error. I therefore do not believe that 

there was a discrepancy with respect to this factual assertion and find that it does not weigh 

against the validity of the test. 

iv. Deviations from 49 CFR Part 40 

Respondent next attacked the third element of the Coast Guard’s prima facie case and 

argued that specific aspects of the urinalysis were not done in accordance with 49 CFR Part 40. 

Specifically, Respondent asserted that there was only a single specimen taken at the collection 

facility and that the entire test was not done on DOT approved forms. Tr. at 14. The Coast 

Guard and Respondent jointly stipulated to both of these facts. Tr. at 14. 

As discussed below, there is no doubt that both of these happenings are in contravention 

of what is required under 49 CFR Part 40. See infra. However, it is well settled Coast Guard 

law that minor technical infractions of the regulations do not violate due process unless the 

infraction breaches the chain of custody or violates the specimen’s integrity. Appeal Decisions 

24
2668 (MERRILL) (2007); 2633 (MERRILL) (2002); 2603 (HACKSTAFF) (1998). While there 

is no clear precedent for determining how this element is to be shown, the question remains 

whether these deviations from what is required under 49 CFR Part 40 are minor technical 

infractions, or whether they are something more and would invalidate the test. 

In analyzing these facts, I note that it is highly important that a drug test conform as 

closely as possible to 49 CFR Part 40. These Regulations indeed require that all DOT drug tests 

be performed and processed with DOT approved forms. 49 CFR 40.45. Notwithstanding this 

section, it would seem to make no significant difference to the sample or the chain of custody 

whether the test was processed on non-DOT forms as long the entire process mimics the 

requirements of 49 CFR Part 40. Coast Guard witness Ms. Wade testified that the only 

perceived difference between DOT forms and the forms used in this case have to do with the 

donor’s privacy. Tr. at 24-25. Specifically, the forms in this case displayed Respondent’s name, 

whereas a DOT approved form would display an assigned specimen number to keep the donor’s 

name private. Tr. at 24. Whether the form is called a federal/DOT form or whether the donor’s 

privacy is protected is immaterial for the purpose of this analysis. Thus, there is no indication 

that these discrepancies would tend to breach the chain of custody or violate the specimen’s 

integrity. Respondent’s argument challenging the type of forms used is rejected. 

Respondent is also correct in that 49 CFR Part 40 requires that a split specimen be taken 

at the collection facility and that this was not done for his collection. 49 CFR 40.71(a). 

However, I fail to see how this discrepancy would impugn the specimen’s integrity or breach the 

chain of custody of Respondent’s sample. Instead, the purpose of this requirement would seem 

to be either to verify or contradict a positive sample on the chance that there was a problem. See

generally, Baffert v. California Horse Racing Bd, 332 F.3d 613 (Cal.) (2003). 

25
49 CFR Part 40 contemplates this very situation in the section where it discusses “Fatal 

Flaws.” See e.g., 49 CFR 40.83(c)(2), 40.83(h). Pursuant to that section and others like it, a 

testing laboratory is still required to test a donor’s sample even when there is a “fatal flaw” in the 

original sample (e.g. seal broken or evidence of tampering), so long as a split sample can be 

redesignated as the original sample and be processed as such. See Id. To put it differently, if 

there is a major problem with Sample A, then Sample B must still be used and processed as if it 

were Sample A. Id. There would be no opportunity for split sample testing upon a positive 

result in that situation, but the positive result of Sample B would nevertheless stand so long as it 

was properly redesignated as Sample A. See Id.

Another similar scenario would be if the testing laboratory discovers that Sample B is 

unavailable or would be insufficient for testing in the event that a split sample was requested. In 

that case, the unusable Sample B would be declared as such and Sample A would be processed 

and stand alone as the only sample available for testing. 49 CFR 40.83(h). There would be no 

opportunity for a split sample test in this hypothetical either but the positive result from Sample 

A would nevertheless stand. Id.

This case is similar to the hypothetical situations outlined above in that there was no split 

sample available for testing on the chance that something went wrong with the original sample. 

However, I have already found that the specimen’s integrity and chain of custody were intact 

with respect to Respondent’s sample and there was thus no apparent need for a split sample in 

this case. If on the other hand, there was evidence to show that the specimen’s integrity or the 

chain of custody were compromised, then the results of this test would have to be discarded 

because there was no split sample available for testing. But since that is not the case here, I do 

26
not see that the Collection Facility’s failure to collect a split sample as anything more than a 

minor technical infraction of 49 CFR Part 40. 

Indeed, the Commandant affirmed a past Administrative Law Judge decision in which a 

mariner was found to have used dangerous drugs based on a single sample drug test. See Appeal 

Decision 2612 (DEGOUGH) (1999), aff’d, Commandant v. DeGough, NTSB Order No. EM-188 

(2000). Furthermore, there have been numerous Commandant Decisions which found other 

discrepancies to be minor technical infractions of 49 CFR Part 40 when they do not impugn the 

specimen’s integrity or breach the chain of custody. See, e.g., Appeal Decision 2668 

(MERRILL) (2007) (finding that the MRO attempting to contact Respondent after seven days, 

rather than waiting the fourteen-day period required by 49 CFR 40.33(c)(5) is clearly a technical 

error); but see e.g., Appeal Decision 2662 (VOOREIS) (2007) (affirming the Administrative 

Law Judge’s finding that the first link in the chain of custody was never established because the 

Coast Guard did not call the specimen collector as a witness and was otherwise unable to 

establish that the requirements of 49 CFR Part 40 relating to identifying the donor were met). 

In the instant case and as already outlined throughout this Decision and Order, the 

specimen’s integrity and the chain of custody for Respondent’s specimen were intact during the 

entire process. The fact that there was no split sample taken at the Collection Facility does not 

disturb this finding. 

Furthermore, Coast Guard witness Dr. Jambor testified that there is always the 

opportunity to retest a sample because when there is a positive result, the unused remainder of 

the single samples is stored for at least 13 months. Tr. at 40 & 44. In this case, Respondent has 

not asked that the remaining sample be retested even though the laboratory still retains the 

remainder of the sample. See Entire Record. In any event, the retention of the sample cures or at 

27
least mitigates the fact that a single sample was taken in this case as long as the sample and chain 

of custody were uncompromised. 

After a careful review of the record, I find that Respondent was unable to produce and 

there was no other convincing evidence to indicate that the single sample was tampered with, 

mixed up with another sample, or was otherwise compromised. See Entire Record. I therefore 

find that this deviation from the requirements of 49 CFR Part 40, along with any other deviations 

therefrom, is nothing more than minor technical infractions of the rules. As such, these 

deviations will not invalidate the test. 

3. Fatal Flaws

 Respondent did not assert this defense, but any discussion of a urinalysis test containing 

minor technical infractions surely warrants a discussion of “fatal flaws.” The term “fatal flaw” 

has a specific meaning in the federal drug testing regulations. Appeal Decision 2653 

(ZERINGUE) (2005). According to common usage in judicial decisions, the term “fatal flaw” 

would refer to anything which addresses a flaw or mistake that demonstrates an insufficiency of 

proof. See Id. In the strict sense, however, and as appropriately used with respect to federal 

drug testing regulations, a “fatal flaw” is a flaw that can occur during the testing procedure 

which would require the testing laboratory or MRO to reject the specimen or cancel the test. See

Id.; 49 CFR 40.83(c)-(d); 40.199(a)-(b). 

Examining the list of fatal flaws and whether this sample should have ever been 

processed is helpful in determining whether the ultimate test results in this case can be used to 

support a charge for use or addiction to the use of dangerous drugs. Specifically, if the testing 

laboratory should have rejected the specimen because of a “fatal flaw,” but did not (or if the 

MRO should have canceled the test, but did not), then a strong shadow of doubt would be cast 

28
over the positive test results at issue in this case. This is a shadow of doubt that would perhaps 

be insurmountable, unless and as discussed previously in this Decision and Order, there was a 

split sample available to be redesignated as the original sample. See e.g., 49 CFR 40.83(h). If 

on the other hand, there were no “fatal flaws,” then the analysis as to whether the test results 

could support a finding of use of dangerous drugs would hearken back to whether any deviations 

from what is required under 49 CFR Part 40 violated the specimen’s integrity or breached the 

chain of custody. 

The Regulations specify that the testing laboratory must reject the specimen or the MRO 

must cancel the test if any of the following conditions occur: 

• The specimen ID numbers on the specimen bottle and the CCF do not match; 

• The specimen bottle seal is broken or shows evidence of tampering, unless a split 

specimen can be redesignated (see paragraph (h) of this section); 

• The collector’s printed name and signature are omitted from the CCF (emphasis in 

original); 

• There is an insufficient amount of urine in the primary bottle for analysis, unless the 

specimens can be redesignated (see paragraph (h) of this section). 49 CFR 40.83(c)-

(d). 

• There is no printed collector’s name and no collector’s signature (emphasis in 

original); 

• The specimen ID numbers on the specimen bottle and the CCF do not match; 

* * * * * 

• The specimen bottle seal is broken or shows evidence of tampering (and a split 

specimen cannot be redesignated, see section 40.83(g)); and 

• Because of leakage or other causes, there is an insufficient amount of urine in the 

primary specimen bottle for analysis and the specimens cannot be redesignated (see 

Section 40.83(g)). 49 CFR 40.199(a)-(b). 

A careful review of the entire record reveals and as previously outlined throughout this 

Decision and Order, none of the above-mentioned conditions occurred here. Thus, there is 

nothing in this list that should have triggered the Testing Laboratory or the MRO to have rejected 

this sample or canceled the test. Instead, any deviations from the requirements of 49 CFR Part 

29
40 amounted to nothing more than minor technical infractions of the rules because they did not 

impugn the specimen’s integrity or breach the chain of custody. 

4. Voluntariness

The Coast Guard asserted that this test was ordered in connection with a periodic 

employment drug test. Tr. at 11. However, an ambiguity manifested itself at the hearing as to 

whether this fact was true and as to whether the test was properly ordered under 46 CFR Part 16. 

Tr. at 30. Respondent offered evidence that the employee policy which mandated the test was 

invalid as determined by an Alaska employee rights tribunal. Resp’t Ex. E. This raises the 

question of usability of a drug test mandated by an invalid company policy and/or one in which 

came to fruition through a method not contemplated by 46 CFR Part 16 (i.e. random, post 

casualty, etc.). Respondent did not specifically raise this issue, but I indicated that I would 

examine whether, and to what extent, this issue would affect the usability of this test in a 

suspension and revocation proceeding. Tr. at 30. 

The Coast Guard provided a post hearing brief wherein it asserted that the answer to this 

question would turn on whether the test was voluntary. The Coast Guard essentially argued in its 

brief that if the test is voluntary, then it can be used and if not, then probably not. I agree. See

Appeal Decisions 2668 (MERRILL) (2007); 2633 (MERRILL) (2002); 2545 (JARDIN) (1992). 

In Jardin and Merrill, the Commandant held that the test was voluntary despite the 

employee’s subjective believe that his employment would be terminated unless he submitted to 

the test because the employee never objected to the test. See Appeal Decisions 2668 

(MERRILL) (2007); 2633 (MERRILL) (2002); 2545 (JARDIN) (1992). In these cases, the 

Commandant would not invalidate the tests because they were deemed voluntary. Id.

30
In the instant case, Respondent signed an agreement/waiver of rights concerning the 

company policy requiring the employee to submit to the drug test. IO Ex. 7. Furthermore, I am 

not aware of any evidence or assertions indicating that Respondent ever objected to the test or 

felt forced to comply. See Entire Record. 

I therefore find that the test in question was voluntary and is not disqualified by virtue of 

possibly not being the type of test contemplated by 46 CFR Part 16. 

Respondent has not successfully rebutted any of the three required elements of the Coast 

Guard’s prima facie case or the corresponding presumption that Respondent used dangerous 

drugs. 

After careful consideration of the testimony at the hearing and of the entire record, I find 

this charge PROVED. 

C. Misconduct 

The Coast Guard charged Respondent with Misconduct under 46 CFR 5.29 and 46 USC 

7703(1)(B) alleging that he failed a drug test in violation of his employer’s company policy 

which forbids employees from using drugs.6 Misconduct is defined as a “behavior which 

violates some formal, duly established rule. Such rules are found in . . . statutes, regulations, the 

common law, the general maritime law, . . . and similar sources. It is an act which is forbidden 

or a failure to do that which is required.” 46 CFR 5.27. Furthermore, a charge for Misconduct 

cannot be found proved unless the Coast Guard establishes that Respondent was acting under the 

authority of his Coast Guard license during the alleged Misconduct. 46 U.S.C. 7703(1). 

This is distinguished from the previous charge of use or addiction to the use of dangerous 

drugs, which is a holder offense. With that charge, “status aboard the vessel does not matter as it 

31
is his status as the holder of a merchant mariner’s document” that establishes jurisdiction. 

Appeal Decision 2668 (MERRILL) (2007). With this charge, the Coast Guard must go further 

and show that Respondent was not only a holder, but also acting under the authority of his Coast 

Guard credentials. 

In the instant case, the Coast Guard alleges that Respondent violated his employer’s 

company policy which forbids employees from using dangerous drugs. There was evidence 

indicating that Crowley employed Respondent at the time in question; that it had a company 

policy prohibiting drug use; and that Respondent violated that policy by testing positive for drug 

use in 2005. Even assuming that evidence to be true, however, the company policy in this case is 

questionable at best. Respondent presented evidence at the hearing that an Alaska employee 

rights tribunal declared the company policy to be invalid. Resp’t Ex. 5. The tribunal further 

decreed that Respondent could not be fired from his job for “misconduct” as defined in the 

company policy simply because of the policy’s inherent invalidity. Resp’t Ex. 5. Despite the 

general rule that a company policy can be a formal duly established rule for the purpose of a 

Misconduct charge under 46 CFR 5.29, there is a dark shadow of doubt cast on the one in this 

case. See Appeal Decision 2675 (MILLS) (2008). Moreover, the Coast Guard essentially 

offered no evidence with respect to the Misconduct charge as a whole and certainly offered 

nothing to shore up the validity of this company policy. As such, I find that the company policy 

in question is not a formal duly established rule for the purpose of a Misconduct charge under 46 

CFR 5.29. 

Given my finding that the Coast Guard failed to establish that Respondent breached a 

formal, duly established rule, I must find that the charge of Misconduct is NOT PROVED. 

 

6 See supra n.2 for description of the Coast Guard’s error in pleading and explanation of the Amended Complaint. 

32
Therefore, there is no need to analyze or make a finding as to whether Respondent was ever 

acting under the authority of his Coast Guard issued document. 

V. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. The burden of proof in this case is on the Coast Guard. 

2. Respondent holds a Coast Guard issued merchant mariner’s document that expires on 

June 6, 2008. 

3. On November 9, 2005, Respondent reported to R&R Testing Services for a drug 

screening. 

4. R&R Testing Services collected Respondent’s urine specimen in substantial accordance 

with the requirements of 49 CFR Part 40. 

5. R&R Testing Services forwarded Respondent’s specimen to Quest Diagnostics for 

processing. 

6. Quest Diagnostics analyzed Respondent’s specimen testing for the presence of drugs and 

determined that Respondent’s specimen tested positive for marijuana metabolites. 

7. Quest Diagnostics analyzed Respondent’s specimen in substantial accordance with the 

requirements of 49 CFR Part 40. 

8. The specimen’s integrity and chain of custody of Respondent’s specimen were preserved 

during the collection and testing process. 

9. By the submission of reliable and probative evidence, the Coast Guard met it burden of 

proof in this case. The burden of going forward then shifts to Respondent to rebut the 

Coast Guard’s prima facie case. 

10. Respondent did not produce any documentary evidence to rebut the Coast Guard’s prima

facie showing. 

33
11. The burden of proof for establishing an affirmative defense is on Respondent. 

12. Respondent did not put forth any testimony that might explain why his urine specimen 

tested positive for marijuana metabolite (THC). 

13. 49 CFR Part 40 does not contain an expiration period for positive drug test results. 

14. Coast Guard statutes and regulations expressly authorize this action to be brought several 

years after Respondent’s sample tested positive for marijuana. 

15. Respondent failed to produce convincing evidence of intentional misconduct or 

oppressive design by the Coast Guard in delaying the initiating of this proceeding. 

16. Respondent failed to produce convincing evidence that he was in any way prejudiced by 

the Coast Guard’s delay in initiating this proceeding. 

17. There was no actual discrepancy regarding the identity of the MRO in this case. 

18. Respondent failed to meet his burden to establish an affirmative defense. 

19. Respondent failed to rebut the Coast Guard’s showing that his urinalysis was processed 

in substantial accordance with 49 CFR Part 40. 

20. Respondent failed to rebut the Coast Guard’s prima facie case. 

21. The charge of use of or addiction to the use of dangerous drugs is hereby found 

PROVED. 

22. Respondent’s merchant mariner’s document be, and it hereby is, REVOKED. 

23. Crowley Maritime’s company policy was not shown to be a formal duly established rule 

and therefore cannot support a charge for Misconduct. 

24. The charge of Misconduct alleging Respondent violated Crowley Maritime’s company 

policy prohibiting drug use is therefore found NOT PROVED. 

34
VI. SANCTION 

The authority to impose sanctions at the conclusion of a case is exclusive to the 

Administrative Law Judge. 46 CFR 5.569(a); Appeal Decision 2622 (NITKIN) (2001). Title 46 

of the Code of Federal Regulations, Part 5, Section 569, provides the Table of Suggested Range 

of Appropriate Orders (Table) for various offenses. The purpose of the Table is to provide 

guidance to the Judge and promote uniformity in orders rendered. Appeal Decision 2628 

(VILAS) (2002), aff’d by NTSB Docket ME-174. Once the Coast Guard proves a mariner used 

or was addicted to the use of dangerous drugs, his credentials must be revoked unless cure is 

proven. See 46 U.S.C. 7704(c); 46 CFR 5.569; Appeal Decision 2535 (SWEENEY) (1992), but

see, Appeal Decision 2678 (SAVOIE) (2008) (holding that despite a Coast Guard regulation 

requiring revocation for conviction of possession of drugs, a Judge can impose a reduced 

sanction because of a 2004 amendment to the underlying statutory authority). Absent evidence 

of cure, an Administrative Law Judge has no discretion and must revoke Respondent’s license or 

document. Appeal Decision 2634 (BARRETTA) (2002). 

In contrast, where Respondent demonstrates “substantial involvement in the cure process 

by proof of enrollment in an accepted [drug] rehabilitation program,” an Administrative Law 

Judge may stay the revocation and continue the Suspension and Revocation hearing. Appeal 

Decision 2657 (BARNETT) (2006); See also Review Decision 18 (CLAY) (1992). 

The record simply does not indicate that Respondent has demonstrated any involvement 

in the cure process or enrollment in a rehabilitation program. This makes sense, however, given 

that Respondent has maintained his innocence throughout this proceeding. It is worth noting that 

Respondent’s drug use proved in this case happened several years ago and there have been no 

subsequent reports or allegations of drug use since then. On the contrary, Respondent offered 

35
evidence of a subsequent negative drug test and appears by all accounts to be a highly 

functioning member of the maritime community. Tr. at 102. While these facts are well taken in 

Respondent’s favor, the Administrative Law Judge unfortunately has no discretion in cases 

brought under 46 U.S.C. 7704 (c) to grant any leniency to Respondent. 

The Commandant took up this exact issue in Appeal Decision 2638 (PASQUARELLA)

(2003). In that case, Respondent Pasquarella moved for the return of his document six (6) 

months prior to completing the cure process. I granted that request and ordered the return of 

Respondent Pasquarella’s merchant mariner papers after he offered persuasive evidence that he 

was not a danger to life and property at sea. 

The Coast Guard filed an appeal and the Commandant reversed my ruling. Because of 

this case and others, it is clear that the judge cannot modify the Sweeney cure requirements even 

if the facts would warrant such action. 

I therefore find that the only available sanction is REVOCATION. 

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WHEREFORE, 

VII. ORDER

IT IS HEREBY ORDERED that Respondent’s Coast Guard issued credentials are 

REVOKED. 

IT IS HEREBY FURTHER ORDERED that Respondent is to immediately deposit his 

Coast Guard issued credentials to the Coast Guard if he has not done so already. 

PLEASE TAKE NOTE that if Respondent wishes to secure the return of his credentials, 

he must petition the Coast Guard for Administrative Clemency in accordance with the 

procedures set forth in 46 CFR Part 5, Subpart L. 

PLEASE TAKE FURTHER NOTE that issuance of this Decision and Order serves as the 

parties’ right to appeal under 33 CFR Part 20, Subpart J. A copy of Subpart J is provided as 

Attachment C. 

 

/s/ Parlen L. McKenna

 Honorable Parlen L. McKenna 

 Administrative Law Judge 

 United States Coast Guard 

Done and Dated on this 2nd day of December 2008, 

Alameda, CA 

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ATTACHMENT A - LIST OF WITNESSES AND EXHIBITS

I. Coast Guard’s Exhibits. IO Ex. 1 through IO Ex. 11

1. Copy 3 – Collector Copy of Custody and Control Form 

2. Litigation Package 

3. Copy 1 – Laboratory Copy of Custody and Control Form 

4. Quest Labs Report 

5. Medical Review Officer Worksheet 

6. Medical Review Officer Final Report 

7. Crowley Maritime Services Drug Testing Acknowledgment Form 

8. Crowley Maritime Services Drug and Alcohol Procedure 

9. Department of Health List of Laboratories Meeting Minimum Federal Standards 

10. Amended Complaint, With Stricken Charge 

11. Signed Amended Answer 

II. Respondent’s Exhibits. Resp’t Ex. A through Resp’t Ex. E. 

A. On-site Test Referral, Consent and Acknowledgement Form 

B. Non-D.O.T. Chain of Custody Form Dated 5/19/2006 

C. Non-D.O.T. Chain of Custody Form Dated 12/19/2006 

D. Inland Union of the Pacific Letter Dated 11/22/2005 

E. Alaska Department of Labor Appeal Tribunal Decision 

III. Coast Guard’s Witnesses 

1. Rhonda Wade, Specimen Collector 

2. Louis Jambor, M.D., Laboratory Director of Quest Diagnostics 

3. Randy Barnett, M.D., Medical Review Officer 

IV. Respondent’s Witnesses 

1. Respondent, Mr. Rockford G. Daire 

V. Mutual Witnesses

1. Benjamin Gerson, M.D., Owner of MRO Laboratory 

2. Melissa Liberatore, Nurse Assistant to Dr. Randy Barnett 

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