UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD,

Complainant, 

vs. 

DOUGLAS SCOTT ROBB, 

Respondent. 

______________________________ 

Docket Number 2019-0415 

Enforcement Activity No. 5763995 

 

DECISION AND ORDER 

Issued: January 14, 2021 

By Administrative Law Judge: Honorable Michael J. Devine 

Appearances: 

JENNIFER A. MEHAFFEY, ESQ. 

Suspension & Revocation National Center of Expertise 

LT BRIAN J. PORTER 

Sector Lower Mississippi 

MR. JAMES D. FAYARD 

Sector Lower Mississippi 

For the Coast Guard 

JAMES W. ALCANTARA, ESQ.

For Respondent 
2 

TABLE OF CONTENTS 

I. PROCEDURAL HISTORY........................................................................3

II. FINDINGS OF FACT...............................................................................4

III.PRINCIPLES OF LAW.............................................................................6

A. Jurisdiction...................................................................................6

B. Burden of Proof.............................................................................7

C. Prima Facie Case of Use of a Dangerous Drug.......................................8

IV.DISCUSSION........................................................................................9

A. The Collector Identified Respondent as the Donor of Specimen ID # 

Y37700626 and the Urine Collection Process Met 49 C.F.R. Part 40 

Requirements...............................................................................10

B. The Selection Process that Resulted in the Crew of the SLNC PAX Being 

Selected for a Random Drug Test Complied with 46 C.F.R. Part 16...........13

C. The Evidence Shows Respondent Failed the Drug Test and the Drug Test 

Was Conducted in Compliance with 46 C.F.R. Part 16 and 49 C.F.R. Part 

40.............................................................................................14

1) Respondent’s Specimen Tested Positive for Dangerous Drugs and the

Laboratory Testing Met 49 C.F.R. Part 40 Requirements...............15

2) The MRO Verified Respondent’s Sample as Positive and the MRO 

Review Process Met 49 C.F.R. Part 40 Requirements....................16

D. Respondent’s Rebuttal Evidence Was Insufficient to Rebut the Prima Facie

Case Presented by the Coast Guard...................................................17

1) Respondent Did Not Demonstrate His Selection for Random Drug 

Testing Violated 46 C.F.R. Part 16.............................................18

2) Respondent Did Not Demonstrate Errors in the Collection Process 

Sufficient to Undermine the Chain of Custody or Integrity of the 

Specimen...........................................................................19

3) Respondent Did Not Demonstrate the MRO Verification of the 

Positive Drug Test Result Violated 49 C.F.R. Part 40....................23

V. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW.................24

VI. SANCTION.........................................................................................25

ORDER...........................................................................................25 

ATTACHMENT A – WITNESS AND EXHIBIT LISTS......................................27 

ATTACHMENT B – NOTICE OF APPEAL RIGHTS........................................29 
3 

I. PROCEDURAL HISTORY 

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

revocation of Douglas Scott Robb’s (Respondent) Merchant Mariner Credential (MMC) No. 

000363248. This action is brought pursuant to the authority contained in 46 U.S.C. 7704(b) and 

its underlying regulations codified at 46 C.F.R. Part 5 and 33 C.F.R. Part 20. 

The Coast Guard issued a Complaint on October 22, 2019, charging Respondent with use 

of or addiction to the use of dangerous drugs under 46 U.S.C. § 7704(b) and 46 C.F.R. § 5.35. 

Specifically, the Coast Guard alleges Respondent took a random drug test on August 31, 2018, 

which yielded a positive result for amphetamines and methamphetamines. 

Respondent, through counsel, filed an Answer on November 6, 2019, admitting the 

jurisdictional allegations of the Complaint, and admitting he took a random drug test on August 

31, 2018, pursuant to 46 C.F.R. Part 16. Respondent denied the remainder of the factual 

allegations. 

The hearing of this case was originally set to commence on March 5, 2020, in Memphis, 

Tennessee. Due to the coronavirus pandemic and the resulting travel restrictions and health 

concerns surrounding in-person hearings, the testimony of the collector was taken by telephone 

on July 23, 2020, and the parties agreed to hold the rest of the hearing by telephone and videoconferencing technology (Zoom for Government). The remainder of the hearing was completed 

September 22, 2020. 

On October 22, 2020, the parties submitted post-hearing briefs setting forth legal 

argument and proposed findings of fact. The record is now closed and the case is ripe for a 

decision. After careful review of the entire record, including witness testimony, documentary 

evidence, applicable statutes, regulations, and case law, I find the Coast Guard PROVED

Respondent was a user of, or addicted to, dangerous drugs. 
4 

II. FINDINGS OF FACT

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

documentary evidence, testimony of witnesses, and the entire record.1 

1. At all times relevant to the instant case, and specifically on August 31, 2018, 

Respondent held MMC No. 000363248. (Ex. CG-001). 

2. In August 2018, Patriot Contract Services (Patriot), operator of the vessel SLNC 

PAX, arranged for Respondent to travel to Ulsan, South Korea to serve as a 

crewmember of the vessel SLNC PAX. 

3. On August 30, 2018, Respondent reported on board the SLNC PAX. Respondent 

began performing duties as First Assistant Engineer on that vessel on August 31, 

2018. (Tr. Day 2 at 40-48, 136-137). 

4. At all relevant times, Anderson-Kelly Associates performed specimen collections and 

drug testing for Patriot. (Exs. CG-003, CG-005, CG-006; Tr. Day 2 at 37). 

5. At all relevant times, American Maritime Safety (AMS) performed the random drug 

testing selection process for Patriot. (Ex. CG-005; Tr. Day 2 at 35-37). 

6. AMS selected the crew of the SLNC PAX to undergo random drug testing, and the 

selection was made using a computer program that randomly selected SLNC PAX 

from a database. (Ex. CG-005; Tr. Day 2 at 35-36). 

7. On August 31, 2018, Anderson-Kelly employed Hie Jung as a specimen collector in 

Ulsan, South Korea, to conduct the collection from the crew of the SLNC PAX. (Tr. 

Day 1 at 18). 

8. At all times relevant, Mr. Jung was a certified collector who had undergone training 

in DOT and Coast Guard-specific drug and alcohol testing requirements. (Ex. CG002; Tr. Day 1 at 13). 

9. On August 31, 2018, Mr. Jung collected urine specimens from the crew of the SLNC 

PAX, including Respondent. (Exs. CG-004, CG-009; Tr. Day 1 at 18-34). 

10. Prior to August 31, 2018, Respondent had participated in over 60 drug tests in his 

career as a mariner. (Tr. Day 2 at 132-133). 

11. Mr. Jung administered the urine collection for the crew of the SLNC PAX, including 

Respondent, on August 31, 2018, as follows: (Tr. Day 1 at 18-40). 

 

1

 The transcripts of the July 23, 2020 and September 22, 2020 hearings will be referred to as “Tr. Day 1” and “Tr. 

Day 2,” respectively. 
5 

a. During the collection procedures, each crewmember, including Respondent, 

produced photo identification to Mr. Jung verifying their identity. (Tr. Day 1 

at 25). 

b. After verifying their identity, Mr. Jung had each crewmember, including 

Respondent, sign the Federal Drug Testing Custody and Control Form (CCF). 

(Tr. Day 1 at 26). 

c. Respondent initialed the seals that are intended to be placed on the split 

specimen bottles while the seals were still attached to the CCF. (Tr. Day 1 at 

37-38). 

d. Each donor chose a collection kit and filled the urine cup with 40 to 50 mL of 

urine. (Tr. Day 1 at 26). 

e. Before entering the restroom to produce the urine specimen, each donor 

emptied his pockets; Mr. Jung put blue dye tablets into the toilet and capped 

the sink faucet, to prevent donors from deliberately contaminating or diluting 

the specimen. (Tr. Day 1 at 25-26). 

f. After the crewmembers, including Respondent, produced a specimen of 

sufficient volume and provided it to Mr. Jung, Mr. Jung checked its 

temperature. (Tr. Day 1 at 27). 

g. Mr. Jung poured the urine into two split specimen bottles and sealed the 

bottles in the donor’s presence. (Tr. Day 1 at 37-38). 

h. Mr. Jung completed the collection by placing the sealed split specimen bottles 

in a pouch with the CCF, to be sent to a lab for testing. (Tr. Day 1 at 30-31). 

i. On August 31, 2018, Mr. Jung did not give a copy of the CCF to the donors 

immediately after the collection. Mr. Jung gave all of the donor copies of the 

CCF to the master, who provided them to the crew later that day. (Tr. Day 2 

at 8-9). 

12. The CCF identified Respondent’s urine specimen as Specimen ID # Y37700626. 

(Exs. CG-004, CG-009, CG-014). 

13. Medtox Laboratories, Inc. (Medtox) performed the testing of Specimen ID # 

Y37700626 (Respondent’s urine specimen). (Tr. Day 2 at 61; Exs. CG-009, CG010). 

14. At all relevant times, Medtox was accredited by the National Laboratory Certification 

Program to perform drug-testing that comports with Department of Transportation 

(DOT) standards. (Tr. Day 2 at 64; Ex. CG-011). 

15. Medtox received Specimen ID # Y37700626 on September 6, 2018, with the split 

sample specimen bottle seals intact (Tr. Day 2 at 72-73; Ex. CG-009; Ex. CG-010 at 

5).
6 

16. Medtox properly maintained the chain of custody for Specimen ID # Y37700626. 

(Tr. Day 2 at 72-73: Ex. CG-10 at 7-21).

17. Specimen ID # Y37700626 tested positive for amphetamines and methamphetamines 

in the initial screening, and after confirmatory testing, it tested positive for 

amphetamines at a level of 552 ng/ml and for methamphetamines at 9057 ng/mL (Tr. 

Day 2 at 67; Ex. CG-009; Ex. CG-010 at 1, 5-6).

18. Mary Dommer served as Medtox’s certifying scientist/technician and certified the 

testing of Specimen ID # Y37700626 met all relevant federal standards. (Ex. CG009; Ex. CG-010 at 5).

19. Mitchell LeBard, Associate Director of Forensic Toxicology at Medtox, reviewed the 

lab documentation, verified Ms. Dommer’s certification, and further verified that 

Medtox’s receipt, handling, and testing of Respondent’s urine specimen complied 

with the requirements of 49 C.F.R. Part 40. (Tr. Day 2 at 58-63).

20. Dr. Walter H. Oakes is, and at all times relevant to these proceedings was, a licensed 

physician and certified Medical Review Officer (MRO). (Tr. Day 2 at 97-100; Ex. 

CG-012). 

21. Dr. Oakes reviewed the test results transmitted by Medtox for Specimen ID # 

Y37700626. (Tr. Day 2 at 102; Exs. CG-013, CG-014).

22. Dr. Oakes’ office attempted to contact Respondent by phone multiple times between 

September 12 and 20, 2018; Dr. Oakes eventually connected with Respondent on 

September 21, 2018, and conducted the MRO interview. (Tr. Day 2 at 102; Ex. CG013). 

23. Dr. Oakes asked Respondent if he had been prescribed any medication that may have 

caused his urine sample to test positive for methamphetamine, and Respondent 

answered in the negative. (Tr. Day 2 at 114-116). 

24. Respondent told Dr. Oakes he had used an over-the-counter Vicks® inhaler prior to 

taking the drug test. (Tr. Day 2 at 115, 117-119, 144). 

25. Dr. Oakes certified on September 21, 2018, that Specimen ID # Y37700626, collected 

on August 31, 2018, tested positive for amphetamines and methamphetamines. (Tr. 

Day 2 at 107-108; Exs. CG-013, CG-014). 

26. Respondent denied using methamphetamine. (Tr. Day 2 at 134). 

III. PRINCIPLES OF LAW 

A. Jurisdiction 

Under Coast Guard case law, jurisdiction is a question of fact and must be determined 

before the substantive issues of the case are decided. Appeal Decision 2620 COX (2001). 
7 

When the Coast Guard charges use of a dangerous drug, jurisdiction exists so long as the 

respondent holds a credential at the time the Coast Guard initiates the proceedings. Appeal 

Decision 2712 (MORRIS) (2016); Appeal Decision 2721 (TOWNSEND) (2018). Here, the 

record shows Respondent held MMC No. 000363248 when the Coast Guard filed the Complaint 

initiating the case. (Ex. CG-001). Accordingly, I have jurisdiction to adjudicate this matter. 

B. Burden of Proof 

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

suspension and revocation (S&R) hearings before United States Administrative Law Judges 

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

record as a whole, the charges are supported by reliable, probative, and substantial evidence. 5 

U.S.C. § 556(d). Under Coast Guard procedural rules and regulations, the burden of proof is on 

the Coast Guard to prove the charges are supported by a preponderance of the evidence. 33 

C.F.R. §§ 20.701, 20.702(a). “The term substantial evidence is synonymous with preponderance 

of the evidence as defined by the U.S. Supreme Court.” Appeal Decision 2477 (TOMBARI) 

(1988); see also Steadman v. Securities and Exchange Commission , 450 U.S. 91, 107 (1981). 

The burden of proving a fact by a preponderance of the evidence “simply requires the 

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

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

existence.’” Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension 

Trust for Southern California, 508 U.S. 602, 622 (1993) (citing In re Winship, 397 U.S. 358, 

371-72 (1970) (Harlan, J., concurring) (brackets in original)). Therefore, the Coast Guard must 

prove by credible, reliable, probative, and substantial evidence that Respondent more likely than 

not committed the charged violation. 
8 

C. Prima Facie Case of Use of a Dangerous Drug 

The drug testing procedures in 46 C.F.R. Part 16 were established not only to protect 

public safety interests but also to ensure that the constitutional rights of the mariner were 

safeguarded throughout the drug testing process. By expressly mandating limited, specific types 

of drug tests—pre-employment, periodic, random, serious marine incident, and reasonable cause 

testing—the drafters of the regulations ensured that the constitutionally protected privacy 

interests of the mariner were balanced with the overriding need to ensure a drug-free and safe 

workplace.2 Appeal Decision 2704 (FRANKS), at *4 (2014). 

As stated above, the Coast Guard bears the burden of proof. When the Coast Guard seeks 

revocation of a mariner’s credential based on a failed drug test conducted pursuant to 46 C.F.R. 

Part 16, the Coast Guard can obtain a presumption that the respondent is a user of dangerous 

drugs if it presents a prima facie case. 46 C.F.R. § 16.201(b).3 A prima facie case is made when 

the following three elements are established: 1) Respondent was the person who was tested for 

dangerous drugs; 2) Respondent failed the drug test; and 3) the test was conducted in accordance 

with 46 C.F.R. Part 16. Appeal Decision 2603 (HACKSTAFF) (1998); see also Appeal Decision 

2653 (ZERINGUE) (2002); Appeal Decision 2584 (SHAKESPEARE) (1997). In establishing 

the afore-mentioned three elements, the Coast Guard, in effect, establishes that the drug test was 

properly ordered for one of the reasons listed in Part 16 (i.e., the test was a pre-employment, 

periodic, random, serious marine incident, or reasonable cause drug test) and the test was 

conducted in a reliable manner in accordance with 49 C.F.R. Part 40. See Appeal Decision 2704 

(FRANKS) (2014) (discussing the “why” and “how” of drug testing under 46 C.F.R. Part 16). 

 

2

 See 46 C.F.R. §§ 16.210-16.250. 

3

 46 C.F.R. § 16.201(b): If an individual fails a chemical test for dangerous drugs under this part, the individual will 

be presumed to be a user of dangerous drugs. 
9 

Once the Coast Guard establishes a prima facie case that a respondent is a user of or addicted to 

dangerous drugs, the respondent may then present evidence to rebut the presumption of the 

positive drug test result. If the respondent fails to rebut the evidence presented by the Coast 

Guard, the ALJ may find the charges proved based upon the presumption alone. Appeal 

Decision 2592 (MASON) (1997). 

IV. DISCUSSION 

The purpose of Coast Guard S&R proceedings is to promote safety at sea. See 46 U.S.C. 

§ 7701. ALJs are authorized by 46 C.F.R. § 5.19 to suspend or revoke an MMC for violations 

arising under 46 U.S.C. § 7704. Under 46 U.S.C. § 7704(b), an MMC shall be revoked if the 

holder has been a user of or addicted to a dangerous drug, unless the holder provides satisfactory 

proof that he is cured. See generally Appeal Decision 2634 (BARRETTA) (2002); Appeal 

Decision 2535 (SWEENEY) (1992) (rev’d on other grounds) (definition of cure established). 

The chemical drug testing laws and regulations require maritime employers to conduct 

pre-employment, periodic, random, serious marine incident, and reasonable cause drug testing to 

minimize use of dangerous drugs by merchant mariners. See 46 C.F.R. Part 16 and 49 C.F.R. 

Part 40. If an employee fails a chemical test by testing positive for a dangerous drug and the test 

is demonstrated to be in compliance with the requirements of 46 C.F.R. Part 16, the individual is 

then presumed to be a user of dangerous drugs. See 46 C.F.R. § 16.201(b); Appeal Decision 

2584 (SHAKESPEARE) (1997). 

Considering the evidence in the record as a whole, I find the Coast Guard established a 

prima facie case of drug use. I further find that Respondent’s rebuttal evidence did not 

overcome the presumption arising from the establishment of the prima facie case. The reasons 

for my findings are set forth, below.
10 

A. The Collector Identified Respondent as the Donor of Specimen ID # 

Y37700626 and the Urine Collection Process Met 49 C.F.R. Part 40 

Requirements 

The Coast Guard must prove Respondent was the person who submitted the specimen 

that was tested for drugs. Appeal Decision 2584 (SHAKESPEARE) (1997). To meet this 

element of the prima facie case, the Coast Guard must show that the specimen collection process 

generally complied with the requirements of 49 C.F.R. Part 40, Subparts C, D, and E. 

Patriot contracted with Anderson-Kelly Associates to perform specimen collections. 

(Exs. CG-003, CG-005, CG-006; Tr. Day 2 at 37). Anderson-Kelly employed Hie Jung as a 

specimen collector. (Tr. Day 1 at 12). At all times relevant to this proceeding, Mr. Jung was 

certified in collection procedures meeting the DOT drug testing program standards. (Ex. CG002); 49 C.F.R. § 40.31(a). Scott Couturier, Master of the SLNC PAX, testified about the 

collector coming on board and setting up for the collection on August 31, 2018, and did not 

recall any problems with the collection process that day. (Tr. Day 2 at 7-10, 27). 

On August 31, 2018, in Ulsan, South Korea, Mr. Jung boarded the SLNC PAX to collect 

urine specimens from the crew in connection with the random drug test for which SLNC PAX 

was selected. (Ex. CG-003; Tr. Day 1 at 18; Tr. Day 2 at 6-7). When Mr. Jung testified on July 

23, 2020, he did not have a specific recollection of the collection from Respondent on August 31, 

2018. (Tr. Day 1 at 20, 23, 35). However, Mr. Jung testified as to his normal collection routine 

and stated that if any problems had occurred with Respondent’s collection on August 31, 2018, 

such as Respondent being unable to produce a sufficient volume of urine, he would have noted 

that on the CCF at the “Remarks” section. (Tr. Day 1 at 23, 28, 40). Mr. Jung further stated that 

if an issue had occurred, such as any tampering with a specimen, he would have a specific 

recollection of that occurrence. (Tr. Day 1 at 35). Regarding the collection on August 31, 2018, 

Mr. Jung testified that Respondent’s specimen collection occurred without any issues and 
11 

pointed out that the CCF had no notes under the “Remarks” section. (Ex. CG-004; Tr. Day 1 at 

40). 

Mr. Jung testified that he boarded the vessel, was given a list of the crew to be tested, and 

was escorted to the collection site. (Tr. Day 1 at 24-25). Only one donor entered the collection 

site at a time, and Mr. Jung had each donor produce photo identification so that Mr. Jung could 

verify that the donor producing the urine specimen was the crewmember listed on the crew list. 

(Tr. Day 1 at 25). After verifying the donor’s identity, Mr. Jung had the donor sign the CCF. 

(Tr. Day 1 at 26). He then directed the donor to choose a collection kit and fill the urine cup 

with 40 to 50 mL of urine. (Tr. Day 1 at 26). Before the donor entered the restroom to produce 

the urine specimen, Mr. Jung directed the donor to empty his pockets; he also put blue dye 

tablets into the toilet and capped the sink faucet, to prevent the donor from deliberately 

contaminating or diluting the specimen. (Tr. Day 1 at 25-26). 

Mr. Jung was shown a “Collector Copy” carbon copy of a CCF bearing the date August 

31, 2018, Respondent’s name and purported signature, and a control number that is unique to 

that CCF (Specimen ID # Y37700626), marked as Ex. CG-004. Mr. Jung testified that he 

believed this was the Collector Copy of the CCF that he prepared and that Respondent signed, 

for the collection that took place on August 31, 2018. (Tr. Day 1 at 21, 27; Ex. CG-004). 

Respondent did not object to the authenticity of Ex. CG-004, and acknowledged during his 

testimony that he signed the form. (Tr. Day 2 at 137-138). 

Mr. Jung testified he would have had the donors, including Respondent, fill the urine 

specimen cup to the appropriate level, then tested the temperature of the specimen to ensure it 

was in the acceptable range. (Tr. Day 1 at 26-27). Respondent contended he was unable to 

produce enough urine at first, and had to leave the collection site to drink fluids, and then return 

to produce another specimen. (Tr. Day 1 at 39; Tr. Day 2 at 138). Respondent also alleged that 

Mr. Jung did not follow the proper “shy bladder” procedure and possibly had Respondent reuse 
12 

his urine collection container even though Respondent also stated he could not tell if it was the 

same bottle. (Tr. Day 2 at 138-139; 164). When asked about Respondent’s allegations during 

cross-examination, Mr. Jung disagreed with Respondent’s contention and stated that the CCF 

had no notes in the “Remarks” section, where he would have noted an issue such as a failure to 

produce a sufficient specimen. (Tr. Day 1 at 39-40; Ex. CG-004). 

Mr. Jung further testified that he would have poured the donor’s specimen into two 

smaller split specimen bottles and applied the seals that bear the CCF control number to the 

bottles. (Tr. Day 1 at 29). On cross-examination, Respondent alleged that Mr. Jung had him 

initial the seals while they were still attached to the CCF and allowed him to leave the collection 

room before he saw his urine specimen poured into the split specimen tubes and sealed. (Tr. Day 

1 at 38; Tr. Day 2 at 139-140). In response, Mr. Jung acknowledged that he may have had 

Respondent initial the seals while they were attached to the CCF, but that the donors, including 

Respondent, were present when he sealed the bottles, and that he always applies the seals to the 

split specimen bottles in the presence of the donor. (Tr. Day 1 at 37-38). Respondent 

acknowledged that he signed Step 5 of the CCF certifying that the specimen was sealed in his 

presence. (Ex. CG-004; Tr. Day 2 at 137-138). Although not consistent with the procedure set 

forth in 49 C.F.R. § 40.71, having a donor initial the seals before they were placed on the split 

specimen bottles is a technical error that would not compromise the integrity of the specimen if 

the bottles were sealed in the donor’s presence. See Appeal Decision 2688 (HENSLEY) (2010); 

Appeal Decision 2554 (DEVONISH) (1994).4

 

4

 Where the ALJ found that the collector had directed donors to sign and certify the CCF prior to completing the 

collection process, the Commandant held that this was an administrative error. The Commandant stated “[D]onors 

should not be required to sign the certification until all of the identified procedures have been completed. As 

discussed below, however, even though Appellant signed the donor certification before providing his specimen, the 

record contains substantial evidence that the required procedures were correctly completed in the presence of the 

donor. Therefore, the error in prematurely signing the DTCCF is of little consequence.” Appeal Decision 2554 

(DEVONISH) at *3. 
13 

Mr. Jung testified that no one complained to him or questioned the collection procedures 

when the collection occurred August 31, 2018. (Tr. Day 1 at 33). Respondent did not raise any 

complaint at the time of the collection. (Tr. Day 2 at 140). Scott Couturier, Master of the SLNC 

PAX, and Timothy Kelley, Chief Engineering Officer, both testified that they participated in the 

urine collection that day and did not recall any problems with the collection process. (Tr. Day 2 

at 8-9, 27). I find that the testimony of the collector, combined with Respondent’s signature on 

the CCF (Ex. CG-004), and his acknowledgement that he signed it, to be sufficient evidence to 

prove Respondent is the person who provided Specimen ID # Y37700626. 

B. The Selection Process that Resulted in the Crew of the SLNC PAX Being 

Selected for a Random Drug Test Complied with 46 C.F.R. Part 16 

Marine employers are required to establish programs for chemical testing for dangerous 

drugs on a random basis for crewmembers on inspected vessels who occupy a position required 

by the vessel’s Certificate of Inspection. 46 C.F.R. § 16.230(a)(1). In this case, there was no 

dispute that SLNC PAX is an inspected vessel and that its crewmembers are subject to the 

random drug testing requirements of 46 C.F.R. Part 16. As discussed more fully in Section 

IV(D), Respondent presented some evidence attempting to argue that he was not technically a 

crewmember at the time the drug test was administered. However, in his Answer, Respondent 

admitted factual allegation 1, which alleges, “[o]n August 31, 2018, Respondent took a required 

random drug test pursuant to 46 CFR Part 16.” In answering a Complaint, if a respondent does 

not specifically deny an allegation, the allegation is considered admitted. 33 C.F.R. § 20.308(c). 

On the date of the drug test, Respondent was employed and performing duties as First Assistant 

Engineer of the SLNC PAX. (Tr. Day 2 at 7-8, 40-41). Considering Respondent’s Answer and 

the evidence in the record, which is discussed more fully in Section IV(D), I find that on August 

31, 2018, Respondent was performing duties under the authority of his MMC on board SLNC 
14 

PAX and was a crewmember of SLNC PAX subject to random testing under 46 C.F.R. § 

16.230(a)(1). 

Compliance with the regulations includes the requirement that random selection for drug 

testing be done in accordance with a scientifically valid method, such as a computer-based 

random number generator that selects a vessel for testing, provided that each vessel subject to the 

marine employer's test program remains equally subject to selection. 46 C.F.R. § 16.230(c); 

Appeal Decision 2710 (HOPPER) (2015). Marine employers may use contractors to administer 

the random chemical testing programs required by Part 16. 46 C.F.R. § 16.230(d). Here, Patriot, 

operator of the SLNC PAX, contracted with AMS to perform the random drug testing selection 

process. (Tr. Day 2 at 35). AMS issued a notification indicating that the crew of the SLNC PAX 

had been randomly selected for drug testing. (Ex. CG-005; Tr. Day 2 at 35-36). AMS made the 

selection through a computer program that randomly selected SLNC PAX from a database. (Tr. 

Day 2 at 36). The use of the computer program for selection is sufficient to show that there was 

a valid random selection process and no unfair targeting of Respondent. Accordingly, I find that 

the random selection process in this case complied with the requirements of 46 C.F.R. Part 16. 

C. The Evidence Shows Respondent Failed the Drug Test and the Drug Test 

Was Conducted in Compliance with 46 C.F.R. Part 16 and 49 C.F.R. Part 40 

As noted above, the evidence shows Respondent was the person tested and that the 

random selection process satisfied the 46 C.F.R. Part 16 requirements for a random test. The 

ALJ now considers whether the evidence is sufficient to show that Respondent failed the drug 

test. When the basis for the charge is a DOT drug test, the 46 C.F.R. Part 16 regulations also 

require the Coast Guard to demonstrate the drug test was conducted in compliance with the DOT 

drug testing regulations found in 49 C.F.R. Part 40. 
15 

1) Respondent’s Specimen Tested Positive for Dangerous Drugs and the

Laboratory Testing Met 49 C.F.R. Part 40 Requirements 

 Continuing with the elements required to be proven to make a prima facie case, I must 

determine if the evidence shows Respondent failed the drug test. This requires an examination 

of the evidence regarding the laboratory analysis of Respondent’s urine specimen. 

Mitchell LeBard testified on behalf of Medtox as to the testing of Respondent’s urine 

specimen. (Tr. Day 2 at 58-75). Mr. LeBard is the Associate Director of Forensic Toxicology 

for Medtox and has worked at Medtox since 1996. (Tr. Day 2 at 58-60). Only laboratories 

certified by the U.S. Department of Health and Human Services under the National Laboratory 

Certification Program (NLCP) may perform DOT drug testing. 49 C.F.R. § 40.81(a). At all 

times relevant to this proceeding, Medtox was certified by the NLCP. (Tr. Day 2 at 64; Ex. CG011). 

 Medtox received Specimen ID # Y37700626 on September 6, 2018, with the split sample 

specimen bottle seals intact. (Tr. Day 2 at 72-73; Ex. CG-009; Ex. CG-010 at 5). Upon receipt, 

Medtox assigned Specimen ID # Y37700626 a unique accession number G8997283. (Tr. Day 2 

at 66; Ex. CG-009; Ex. CG-010 at 10). At no time during Medtox’s possession of Specimen ID 

# Y37700626 was the chain of custody compromised. (Tr. Day 2 at 72-73: Ex. CG-10 at 7-21). 

Medtox performed an initial screening of Respondent’s specimen using an immunoassay 

test, which produced a presumptive positive result for amphetamines and methamphetamines. 

(Tr. Day 2 at 63, 67). Medtox then performed confirmatory testing using gas chromatography 

mass spectrometry. (Tr. Day 2 at 67). The confirmatory test cut-off level for positive 

amphetamine and methamphetamine confirmatory tests is 250 ng/mL. (Tr. Day 2 at 71); 49 

C.F.R. § 40.87(a). After confirmatory testing, Specimen ID # Y37700626 tested positive for 

amphetamines at a level of 552 ng/ml and for methamphetamines at 9057 ng/mL. (Tr. Day 2 at 
16 

67; Ex. CG-009; Ex. CG-010 at 1, 5-6). Medtox ensured its equipment produced accurate results 

by performing calibration and quality control tests. (Tr. Day 2 at 63). 

Mary Dommer served as Medtox’s certifying scientist/technician and certified the testing 

of Specimen ID # Y37700626 met all relevant federal standards. (Ex. CG-009; Ex. CG-010 at 

5). Mr. LeBard reviewed the lab documentation and verified Ms. Dommer’s certification, and 

further verified that Medtox’s receipt, handling, and testing of Respondent’s urine specimens 

complied with the requirements of 49 C.F.R. Part 40. (Tr. Day 2 at 61-63). 

The evidence presented by the Coast Guard showed that Medtox complied with the 

regulations contained in 49 C.F.R. Part 40, Subpart F, and satisfied quality control practices in its 

testing of Respondent’s specimen. Accordingly, I find Respondent’s Specimen ID # Y37700626 

tested positive for amphetamines and methamphetamines. 

2) The MRO Verified Respondent’s Sample as Positive and the MRO 

Review Process Met 49 C.F.R. Part 40 Requirements

 Determining if Respondent failed the drug test also requires an analysis of the 

verification by the MRO of the positive drug test result produced by the laboratory. 

Accordingly, I must examine the evidence presented regarding the MRO’s verification process. 

The Coast Guard presented the testimony of Dr. Walter Oakes, the MRO who evaluated 

the results of Respondent’s drug test. He is a licensed physician and a certified MRO. (Tr. Day 

2 at 97-100; Ex. CG-012). In accordance with an MRO’s obligation to discuss positive drug 

screen results with a mariner and provide the mariner with an opportunity to give a legitimate 

explanation for a positive finding, Dr. Oakes’ office attempted to contact Respondent by phone a 

number of times between September 12 and 20, 2018; Dr. Oakes was successful in connecting 

with Respondent on September 21, 2018. (Tr. Day 2 at 102; Ex. CG-013). 

The regulations provide that the MRO is to allow the donor to provide any information 

about lawfully prescribed medication that may have caused a positive result and to explain the 
17 

opportunity for a retest. 49 C.F.R. §§ 40.135, 40.137, and 40.153. Dr. Oakes asked Respondent 

if he had been prescribed any medication that may have caused his urine sample to test positive 

for methamphetamine, and Respondent answered in the negative. (Tr. Day 2 at 114-116). 

Respondent stated in the phone call with Dr. Oakes, and asserted during Dr. Oakes’ 

cross-examination and in his own testimony, that he had used an over-the-counter Vicks® 

inhaler prior to taking the drug test. (Tr. Day 2 at 115, 117-119, 144). Dr. Oakes testified that 

the Vicks® inhaler is an over-the-counter product that can cause the presence of “L type” 

methamphetamine in a person’s urine sample, but it does not cause the presence of “D type” 

methamphetamine. (Tr. Day 2 at 110, 117, 119). Dr. Oakes testified that only a few kinds of 

prescription medications can cause the presence of “D type” methamphetamine. (Tr. Day 2 at 

109-110). Dr. Oakes further testified that Respondent’s specimen showed the presence of 95% 

“D type” and 5% “L type” methamphetamine. (Tr. Day 2 at 119-120). Because Respondent 

stated he had no prescription for any medication that may have caused the positive result, and 

because Respondent’s purported use of the Vicks® inhaler could not have caused the result of 

95% “D type” methamphetamine, Dr. Oakes concluded that Respondent had no medically valid 

reason for testing positive and verified Respondent’s drug test result. (Ex. CG-014). 

Considering all of the evidence in the record, I find the MRO’s review of the lab results 

and verification of the positive drug test result satisfied the requirements for MRO verification of 

a positive test and reporting results to the designated employer representative (DER), in keeping 

with 49 C.F.R. Part 40, Subpart G. I find there is sufficient evidence presented to show that 

Respondent failed the drug test. 

D. Respondent’s Rebuttal Evidence Was Insufficient to Rebut the Prima Facie

Case Presented by the Coast Guard 

If the Coast Guard establishes a prima facie case by a preponderance of the evidence, a 

presumption of dangerous drug use arises, and the burden then shifts to the respondent to 
18 

produce persuasive evidence to rebut the presumption. 46 C.F.R. § 16.201(b); 33 C.F.R. § 

20.703(a); Appeal Decisions 2603 (HACKSTAFF) (1998). A respondent faced with overcoming 

the presumption of use of a dangerous drug “may rebut the presumption by producing evidence 

(1) that calls into question any of the elements of the prima facie case, (2) that indicates an 

alternative medical explanation for the positive test result, or (3) that indicates the use was not 

wrongful or not knowing.” Appeal Decision 2560 (CLIFTON) (1995). If a respondent’s 

evidence sufficiently rebuts the presumption, the burden of presenting evidence of a respondent’s 

drug use returns to the Coast Guard, which always bears the ultimate burden of proof on this 

issue. Id.; 33 C.F.R. § 20.703(b). 

Respondent cross-examined the Coast Guard’s witnesses; testified on his own behalf; 

presented the testimony of Second Assistant Engineer Thomas Stenquist; presented a tape 

recording of his verification interview with the MRO, Dr. Walter Oakes, which was transcribed 

into the record; and presented documentary evidence. After consideration of Respondent’s 

evidence in rebuttal, I find that Respondent did not overcome the presumption of drug use that 

arose from the Coast Guard’s prima facie case. 

1) Respondent Did Not Demonstrate His Selection for Random Drug 

Testing Violated 46 C.F.R. Part 16 

Respondent argued the random drug test in which he participated on August 31, 2018, 

was invalid because he was not yet a crewmember of the SLNC PAX when his urine was 

collected. Respondent contended he had not yet signed the ship’s articles on August 31, 2018, 

and thus was not a crewmember until he signed the articles “three or four more days” after 

August 31, 2018. (Tr. Day 2 at 136). This argument is rejected. As stated in Section IV(B), 

above, Respondent’s Answer admitted the jurisdictional allegations and the factual allegation 

that he took a random drug test required by 46 C.F.R. Part 16 on August 31, 2018. Respondent 

also testified he reported aboard the vessel on August 30, 2018, as directed by his employer, 
19 

Patriot, and was performing the duties of his position (First Assistant Engineer) on the vessel, 

including participating in the urinalysis collection. (Tr. Day 2 at 136). 

I find Respondent was employed in the service of the vessel and acting under the 

authority of his credentials on August 31, 2018. 46 C.F.R. § 5.57. Whether Respondent signed 

the articles on the ship does not eliminate or contradict the facts of his actions in performing 

duties aboard the vessel SLNC PAX. Pursuant to 46 C.F.R. § 16.230(a), the crewmembers of 

inspected vessels who occupy positions required by the Certificate of Inspection must be subject 

to random drug testing. Therefore, I find Respondent was a crewmember of SLNC PAX subject 

to random testing on August 31, 2018. Additionally, the Coast Guard presented adequate 

evidence of the company’s use of a valid random selection process for its vessels through the 

contractor AMS. Respondent’s challenge to the validity of his random selection is rejected. 

Respondent also questioned the length of time that elapsed between AMS notifying 

Patriot that the crew of the SLNC PAX was selected for random testing and the administration of 

the testing. David Nolan, the Personnel Manager and DER for Patriot, testified Patriot was 

notified of the selection on April 25, 2018, but testing was not performed until August 31, 2018. 

(Tr. Day 2 at 51; Ex. CG-005). However, Respondent did not show that the delay in performing 

the test violated any regulation in Part 16. There was no evidence that the delay undermined the 

rationale for random testing under Part 16—to deter drug use by crewmembers and to ensure that 

mariners are not unfairly targeted for testing. 

2) Respondent Did Not Demonstrate Errors in the Collection Process 

Sufficient to Undermine the Chain of Custody or Integrity of the 

Specimen 

Respondent’s evidence focused primarily on asserting claims of error in the collection 

process. Respondent testified Mr. Jung was not wearing gloves during the collection process. 

(Tr. Day 2 at 138). He stated that he initialed the seals that are intended to be placed onto the 

split specimen bottles while they were still attached to the CCF. (Tr. Day 2 at 140). Respondent 
20 

alleged Mr. Jung did not allow Respondent to choose the collection kit but was instead given one 

to use by Mr. Jung. (Tr. Day 2 at 138). He testified he could not produce a sufficient amount of 

urine and was directed by Mr. Jung to leave, drink water, and return at some unspecified time to 

try to give another specimen. (Tr. Day 2 at 138). According to Respondent, when he returned, 

Mr. Jung gave him a urine collection cup that was not wrapped. Respondent stated the collection 

cup “appeared to be the same bottle but I could not tell because if it was mine it would have been 

wiped out, because the drops of urine that were in there when I handed it to him were not there.” 

(Tr. Day 2 at 139). After producing sufficient urine in the collection cup, Respondent stated he 

gave the cup to Mr. Jung, and Mr. Jung then allowed Respondent to leave the room before he 

poured the urine into the split specimen tubes and applied the seals. (Tr. Day 2 at 140). 

In support of his argument, Respondent presented the testimony of Thomas Stenquist, the 

Second Assistant Engineer aboard the SLNC PAX, on August 31, 2018. Mr. Stenquist testified 

that by August 31, 2018, he had given his notice to Patriot that he was leaving his employment 

on the vessel and wanted to be sure his exit from the ship was “by the book.” (Tr. Day 2 at 79, 

85). Mr. Stenquist testified the collector verified his ID and then already had a urine collection 

kit for him, and the collector had already opened the kit. (Tr. Day 2 at 81). He also testified the 

collector had him sign the CCF and initial the seals prior to placing the seals on the bottles, and 

that the collector allowed him to leave the room before the collector placed the seals on the split 

specimen bottles. Mr. Stenquist also stated he went back into the room and saw the seals were 

already on the bottles. (Id.). Mr. Stenquist also testified that the collector did not provide a copy 

of the CCF to him immediately after the collection. (Tr. Day 2 at 80-82). Mr. Stenquist then 

said that Respondent told him that he initially could not provide a sample and was told to drink 

water and come back. Mr. Stenquist also said that Respondent told him that when he provided a 

specimen later, the collector let him use the same cup. (Tr. Day 2 at 82-83). 
21 

Mr. Stenquist further testified that the day after the collection, he discussed the 

collector’s procedures with other members of the crew and then raised his concerns to the 

attention of Capt. Couturier and Chief Engineer Timothy Kelley, but Mr. Stenquist stated that 

they did not share his concerns with the test. (Tr. Day 2 at 84-85). At that point, Mr. Stenquist 

said he sent an email documenting his concerns to the “designated person ashore” at Patriot. 

Respondent offered into evidence an email sent by Mr. Stenquist to 

“Philip.dimoulas@asmhq.com” on September 5, 2018. (Ex. R-001). There was no testimony 

regarding who Philip Dimoulas was and what he did with the email shown in Ex. R-001, but 

David Nolan (Personnel Manager and DER for Patriot) testified he received an email from Mr. 

Stenquist stating concerns with the August 31, 2018 collection and forwarded the email to 

another DER at Patriot. (Tr. Day 2 at 50). Respondent also moved into evidence two emails 

from individuals named Andrew Mayorga and Victor Armenta that express agreement with Mr. 

Stenquist’s concerns. (Exs. R-002, R-003). Neither Mr. Mayorga nor Mr. Armenta testified at 

the hearing. I have reviewed this evidence, along with the testimony presented at the hearing, 

and I do not find that it presents evidence that affects the integrity of the specimen collection 

from Respondent on August 31, 2018. 

Mr. Stenquist testified that he was concerned about the collection because it was 

important to his career and followed through by sending an email regarding his concerns to the 

company DER. However, only part of his testimony is relevant and I find it is not persuasive. 

While he contends he was allowed to leave the room before the seals were affixed to the 

specimen bottles, he said the bottles were sealed when he immediately went back into the room. 

He also complained that the collector did not wear gloves. However, while wearing gloves may 

be a good practice, it is not required by the regulations. The collector is responsible for attaching 

the seals to the bottles, but the specimen donor is responsible for signing the CCF acknowledging 

the seals were attached in his or her presence. There was also some contention of 
22 

noncompliance with the company’s D 148 checklist, but no checklist was presented in evidence 

and there is no basis to find a problem in regard to the alleged checklist. While Mr. Stenquist 

may have had some concerns regarding the collection, none of them appear to provide a basis to 

find that the specimen integrity was somehow compromised. Additionally, in regard to 

Respondent’s specimen collection, Mr. Stenquist has no personal knowledge of Respondent’s 

interaction with the collector, and his testimony repeating what Respondent told him is classic 

hearsay. Although hearsay is admissible in S&R proceedings, Stenquist’s repetition of 

Respondent’s statements without any personal knowledge does not provide a basis for giving any 

weight to that hearsay testimony. 

Like Mr. Stenquist, Respondent is an experienced mariner. Respondent testified he had 

participated in over 60 drug tests. (Tr. Day 2 at 132-133). Despite his familiarity with the 

process, Respondent did not make a complaint to the collector and insist on proper procedures 

when the collector allegedly committed significant errors. While there may be some conflicting 

evidence between the evidence presented by the Coast Guard and Respondent, I find the 

evidence shows that Respondent did not make a contemporaneous complaint regarding the 

process to the collector or to the master on August 31, 2018. 

Respondent does not dispute he signed the CCF certifying that the specimen bottles were 

sealed in his presence. (Ex. CG-003). I find Respondent’s contentions that the collector did not 

allow him to choose a collection cup and allowed him to leave the collection site prior to sealing 

the split specimen bottles in his presence not credible. Likewise, I find Respondent’s contention 

that he could not produce a sufficient specimen on his first attempt and then later may have been 

asked to use the same specimen bottle not credible. 

I find Mr. Jung’s testimony that he followed his typical procedures, which are consistent 

with the requirements of 49 C.F.R. Part 40, to be credible. At all relevant times, Mr. Jung was a 

certified collector who had undergone training in DOT and Coast Guard drug and alcohol testing 
23 

requirements. (Ex. CG-002). Mr. Jung testified he allowed the specimen donors, including 

Respondent, to choose their own collection kit. (Tr. Day 1 at 26, 36). He testified he poured 

Respondent’s urine into the split specimen bottles and sealed the bottles in Respondent’s 

presence. (Tr. Day 1 at 37-38). Mr. Jung acknowledged he may not have worn gloves, but, 

while it may be a good practice, the DOT regulations do not require collectors to wear gloves. 

As discussed in Section IV(A), above, having specimen donors sign the CCF seals while 

still attached to the form is an administrative error that does not call into question the integrity of 

the specimen, if the ALJ finds that the bottles were sealed in the mariner’s presence. See Appeal 

Decision 2554 (DEVONISH) (1994). I find Mr. Jung’s testimony that he sealed the bottles in 

Respondent’s presence to be credible and corroborated by Respondent’s signature on the form, 

which Respondent acknowledged to be his signature. Finally, Mr. Jung testified he did not recall 

if he provided the mariners copies of the CCF forms. The master, Scott Couturier, testified that 

on August 31, 2018, he received all of the CCF forms from the collector and then provided them 

to the crew. (Tr. Day 2 at 9). Although the crewmembers should have been provided with a 

copy of the form at the time of the collection, this is an administrative error that does not affect 

the chain of custody or integrity of the specimen. For all of the foregoing reasons, I find that 

Respondent’s evidence was not sufficient to demonstrate that the collector failed to substantially 

follow the requirements of 49 C.F.R. Part 40. 

3) Respondent Did Not Demonstrate the MRO Verification of the Positive 

Drug Test Result Violated 49 C.F.R. Part 40 

The MRO advised Respondent of his opportunity to request a split specimen test at 

another laboratory and inquired whether Respondent had a prescription for methamphetamine. 

Respondent told the MRO, Dr. Oakes, that he used an over-the-counter Vicks® inhaler prior to 

taking the drug test. (Tr. Day 2 at 114-115). During the interview, and at the hearing, Dr. Oakes 

explained that this product could cause the presence of “L type” methamphetamine in a person’s 
24 

urine sample. Dr. Oakes pointed out that Respondent’s specimen showed the presence of 95% 

“D type” methamphetamine, which would not be the result of using an inhaler. (Tr. Day 2 at 

110, 117, 119). 

Respondent contended that the MRO failed in his duty to investigate the circumstances of 

Respondent’s drug test because of his complaint about the collection process. Respondent 

argues that his drug test must have been corrupted in some way, otherwise it would have shown 

the presence of more “L type” methamphetamine. Respondent’s argument relies, in part, on 

finding his testimony regarding use of the over-the-counter Vicks® inhaler credible; but it also 

fails to address the fact there was a very high positive result for the “D” type of 

methamphetamine. Neither the MRO nor the undersigned ALJ are obligated to believe 

Respondent’s contention that he was using the inhaler or that his alleged use of an inhaler would 

have contradicted the results determined by Medtox. Dr. Oakes properly questioned Respondent 

about whether he had any prescriptions that may have caused the presence of the “D type” 

methamphetamine, and when Respondent stated he had taken no such prescription medication, 

Dr. Oakes found no legitimate medical basis for the positive test result. He also advised 

Respondent of his opportunity to request a split specimen test. (Tr. Day 2 at 115). Considering 

all of the evidence in the record, the MRO’s review of the lab results and verification of the 

positive drug test result satisfied the requirements of 49 C.F.R. Part 40, Subpart G. 

V. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. At all times relevant to the instant proceeding, Respondent was a holder of Coast 

Guard issued Merchant Mariner Credential No. 000363248. 

2. Respondent was performing duties as First Assistant Engineer on the vessel SLNC 

PAX on August 31, 2018. 

3. Respondent and the subject matter of this hearing are properly within the jurisdiction 

vested in the Coast Guard under 46 U.S.C. § 7704(c), 46 C.F.R. Parts 5 and 16, 33 

C.F.R. Part 20, and the APA codified at 5 U.S.C. §§ 551-59. 
25 

4. On August 31, 2018, Respondent participated in a properly directed 46 C.F.R. Part 16 

random drug test. 

5. Respondent’s urine specimen tested positive for amphetamines and 

methamphetamines. Medtox analysis showed Respondent’s test results exceeded the 

cutoff levels of 500 ng/ml provided by 49 C.F.R. 40.87. As noted in Findings of Fact 

17 above, Specimen ID # Y37700626 tested positive for amphetamines at a level of 

552 ng/ml and for methamphetamines at 9057 ng/mL. (Tr. Day 2 at 67; Ex. CG-009; 

Ex. CG-010 at 1, 5-6).

6. The Coast Guard provided sufficient evidence that Respondent’s positive drug test 

met all of the elements of a prima facie case in order to apply the rebuttable 

regulatory presumption that he was a user of dangerous drugs. 46 C.F.R. § 16.201(b). 

7. Respondent did not present sufficient evidence to rebut the presumption that he was a 

user of dangerous drugs. 

8. The Coast Guard has proven by a preponderance of reliable, probative, and credible 

evidence that Respondent was a user of dangerous drugs. 

VI. SANCTION

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

Appeal Decision 2362 (ARNOLD) (1984). When the Coast Guard proves that a mariner has 

used or is addicted to dangerous drugs, revocation of all Coast Guard issued licenses, documents, 

and other credentials is the appropriate sanction unless cure is proven. 46 U.S.C. § 7704(b); 46 

C.F.R. § 5.59; Appeal Decision 2535 (SWEENEY) (1992). Here, the Coast Guard proved by a 

preponderance of reliable, probative, and credible evidence that Respondent was a user of or 

addicted to dangerous drugs, and Respondent has not presented any evidence of cure. In keeping 

with 46 C.F.R. § 5.59, the appropriate sanction is REVOCATION. 

WHEREFORE, 

ORDER 

IT IS HEREBY ORDERED, Merchant Mariner Credential No. 000363248, and all 

other valid licenses, documents, and endorsements issued by the Coast Guard to Respondent 

Douglas Scott Robb, are REVOKED. Respondent’s MMC shall be surrendered to U.S. Coast 
26 

Guard Sector Lower Mississippi, 2 A.W. Willis Ave, Memphis, Tennessee 38105-1502, 

Attention Mr. James Fayard, Investigating Officer, and shall be processed appropriately. 

Respondent must immediately surrender any other Coast Guard-issued credentials to the Coast 

Guard. If Respondent knowingly continues to use his credentials, he may be subject to criminal 

prosecution. 

PLEASE TAKE NOTICE, within three (3) years or less, Respondent may file a motion 

to reopen this matter and seek modification of the order of revocation upon a showing that the 

order of revocation is no longer valid and the issuance of a new license, certificate, or document 

is compatible with the requirement of good discipline and safety at sea. The revocation order 

may be modified upon a showing that Respondent: 

(1) has successfully completed a bona fide drug abuse rehabilitation program; 

(2) has demonstrated complete non-association with dangerous drugs for a minimum of 

one year following completion of the drug rehabilitation program; and 

(3) is actively participating in a bona fide drug abuse monitoring program. 

See generally 33 C.F.R. § 20.904; 46 C.F.R. § 5.901. The drug abuse monitoring program must 

incorporate random, unannounced testing during that year. Appeal Decision 2535 (SWEENEY) 

(1992). 

PLEASE TAKE FURTHER NOTICE, service of this Decision and Order on the 

parties and/or parties’ representative(s) serves as notice of appeal rights set forth in 33 C.F.R. §§ 

20.1001 – 20.1004. (See Attachment B). 

______/s/_________________________________________ 

Michael J. Devine 

Administrative Law Judge

United States Coast Guard 

Date: 

January 14, 2021
27 

ATTACHMENT A 

Coast Guard’s Witnesses 

1. David Nolan 

2. Scott Couturier 

3. Timothy Kelley 

4. Hie Jung 

5. Mitchell LeBard 

6. Walter Oakes, M.D.

Coast Guard’s Exhibits 

CG Exhibit 1: Copy of Respondent’s MMC 

CG Exhibit 2: DOT/USCG Collector Training Certificate issued to Hie Jung 

CG Exhibit 3: Notice of completed collection for crew of SLNC PAX on August 31, 

2018 

CG Exhibit 4: Federal Drug Testing Custody and Control Form (CCF) for Specimen ID 

# Y37700626, Copy 3 “Collector Copy” 

CG Exhibit 5: Random Selection Notification from American Maritime Safety to SLNC 

PAX 

CG Exhibit 6: Notification of scheduled urine specimen collection from Anderson-Kelly 

Associates to SLNC PAX 

CG Exhibit 7: Positive Drug Test Notification letter dated October 2, 2018, from David 

Nolan to Coast Guard 

CG Exhibit 8: Patriot Contract Services, LLC Drug and Alcohol Policy 

CG Exhibit 9: CCF for Specimen ID # Y37700626, Copy 1 “Test Facility Copy” 

CG Exhibit 10: Medtox Laboratories, Inc. Litigation Package 

CG Exhibit 11: Federal Register Vol. 83, No. 171 (Listing of HHS-Certified Laboratories) 

CG Exhibit 12: MRO Verification of Certification issued to Dr. Walter Oakes 

CG Exhibit 13: MRO report of positive drug test result 
28 

CG Exhibit 14: CCF for Specimen ID # Y37700626, Copy 2 “Medical Review Officer 

Copy” 

Respondent’s Witnesses 

1. Thomas Stenquist

2. Douglas Scott Robb

Respondent’s Exhibits 

Resp. Exhibit R1: Statement of Tom Stenquist and email from Stenquist to 

Philip.dimoulas@asmhq.com 

Resp. Exhibit R2: Email from Andrew Mayorga 

Resp. Exhibit R3: Email from Victor Armenta 

Resp. Exhibit R3: Photograph of Inhaler (1) 

Resp. Exhibit R4: Photograph of Inhaler (2) 

ALJ Exhibit

ALJ Exhibit I: Stipulation of parties to authenticity of exhibits 
29 

ATTACHMENT B 

Notice of Appeal Rights

33 CFR 20.1001 – General.

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

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

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

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

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

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

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

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

public policy.

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

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

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

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

evidence that that person would have presented. 

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

33 CFR 20.1002 – Records on appeal. 

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

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

of proceeding, then, -- 

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

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

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

the transcript on the terms prescribed in 49 CFR 7.45. 

33 CFR 20.1003 – Procedures for appeal. 

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

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

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

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

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

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

(i) Basis for the appeal;

(ii) Reasons supporting the appeal; and
30 

(iii) Relief requested in the appeal. 

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

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

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

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

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

untimely.

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

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

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

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

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

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

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

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

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

an ALJ's decision. 

33 CFR 20.1004 – Decisions on appeal. 

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

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

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

proceedings.

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

copy of the decision on each party and interested person.