UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_________________________________ 

UNITED STATES COAST GUARD 

Complainant

vs. 

NICHOLAS RYAN SOUTHWOOD 

Respondent

_________________________________ 

Docket Number 2019-0346 

Enforcement Activity No. 5767962

DECISION AND ORDER 

Issued: September 18, 2020 

By Administrative Law Judge: Honorable George J. Jordan 

Appearances: 

Jennifer Mehaffey, Esq. 

Suspension and Revocation National Center of Expertise 

CWO Stephen M. Cheney 

Sector Puget Sound 

For the Coast Guard 

Nicholas Ryan Southwood, Pro se 

For the Respondent 
2 

PRELIMINARY STATEMENT

Pursuant to 46 U.S.C. § 7704(b) and its underlying regulation at 46 C.F.R. Part 5, the 

United States Coast Guard (Coast Guard) initiated this administrative action to revoke Nicholas 

issued a Complaint on September 5, 2019, charging Respondent with the use of, or addiction to 

the use of dangerous drugs in violation of 46 U.S.C. § 7704(b) and 46 C.F.R. § 5.35. 

On September 25, 2019, Respondent filed a timely Answer admitting all jurisdictional 

allegations and denying the factual allegations. I held a prehearing conference with the parties on 

December 1, 2019, during which I set the hearing for March 24-25, 2020 at the Nakamura U.S. 

Courthouse in Seattle, Washington. On March 13, 2020, I entered a Notice of Cancellation of 

Hearing due to Covid-19 related restrictions on travel and public meetings, and scheduled 

another telephonic prehearing conference for March 24, 2020. With the agreement of the parties, 

I determined at the conference that this hearing was amenable to being held telephonically and 

set a new hearing date for April 28, 2020. 

I held a final pre-hearing teleconference on April 24, 2020, of which both parties had 

participated, but Respondent did not. My staff attempted to contact him with no success. 

On Ap

Respondent did not. The Coast Guard moved for default pursuant to 33 C.F.R. § 33.310, and I 

announced on the record that I would issue an Order to Show Cause, giving Respondent 30 days 

to explain his failure to appear. See 

June 4, 2020, but to date, he has not filed any response. 

The Commandant previously used Fed. R. Civ P. 55 in interpreting Coast Guard rules for 

defaults. See Appeal Decision 2696 (CORSE) (2011). This rule allows the ALJ to conduct a 

(A) conduct an 
3 

accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by 

the Complaint alleged Respondent took a non-DOT, post-accident drug test which was positive 

for marijuana metabolites, it did not provide suff -casualty 

Federal Drug Testing Custody and Control Form for a non-DOT test; or the reliability of the 

testing process. Consequently, I heard limited testimony on these issues to aid me in determining 

MMC. ed Coast Guard 

Exhibit #1,1 and heard testimony from five witnesses. 

After careful review of the entire record, including the applicable statutes, regulations, 

and case law, and for the reasons discussed below, I GRANT

th REVOKED. 

FINDINGS OF FACT 

1. On March 26, 2019, Respondent was a crewmember on board the BEARCAT, a towing 

vessel owned by Westar Marine Services. (Tr. at 9-11). 

2. While the vesel was landing a fuel barge, it rubbed a piling which resulted in minor 

damage. (Tr. at 10). 

3. Respondent assisted in directing the barge landing. (Tr. at 11, 14). 

4. Westar Marine directed Respondent on March 27, 2019, to take a drug test under its 

company policy. (Tr. at 12, 23). 

5. When Westar Marine orders such a test, informes the drug testing companies the test is a 

post-accident test; but does not distinguish between company-directed tests and Coast 

Guard mandated tests. (Tr. at 28). 

6. The collector at the test site prepares the custody and control form. (Tr. at 28). 

7. On March 27, 2019, Respondent submitted a urine specimen collected by Brian Carver of 

On-Site Health & Safety, Rodeo, CA. (Complaint). 

 

1

 The Coast Guard referred to other exhibits throughout the hearing but did not seek admission of any exhibits other 

than CG Ex. 1. 
4 

8. On-Site Health & Safety untilied a DOT Federal Drug Testing Custody and Control form 

during R

9. Respondent signed a Federal Drug Testing Custody and Control Form for providing 

specimen ID # Y38115825. (Complaint). 

10. MedTox, St. Paul, MN, a SAMHSA certified, laboratory, received and analyzed 

Specimen ID # Y38115825 by. (Complain). 

11. On April 6th, 2019, specimen ID # Y38115825 tested positive for Marijuana metabolites 

as reported by MedTox. (Complaint). 

12. When Dr. Thrasher contacted Respondent about the results, Respondent said he had not 

used marijuana for over a month. (Tr. at 61). 

13. On April 9th, 2019, after review and interpretation of the results, Dr. Dennis Thrasher, 

the Medical Review Officer, certified Respondent tested positive for Marijuana 

metabolites. (Complaint). 

DISCUSSION 

A. Jurisdiction 

Although a respon

burden of establishing jurisdiction nonetheless remains. See 33 C.F.R. § 20.310(c); Appeal 

Decision 2677 (WALKER) (2008); see also Appeal Decision 2656 (JORDAN) (2006). As in 

Walker, this case arises from a default action, and the facts supporting the jurisdictional 

allegation are found solely within the confines of the Coast Guard's Complaint. The Complaint 

alleges Respondent holds a Coast Guard-issued credential, and charges Respondent with use of, 

or addiction to the use of, dangerous drugs. Under 46 U.S.C. § 7704(c), being a holder of a Coast 

Guard-issued credential is an adequate basis for jurisdiction in cases involving the use of 

dangerous drugs. Accordingly, the record established jurisdiction.

B. Respondent is in Default 

The purpose of Coast Guard Suspension and Revocation proceedings is to promote safety 

at sea. 46 U.S.C.A. § 7701(a). Title 46 C.F.R. § 5.19 gives Administrative Law Judges (ALJs) 

the authority to suspend or revoke merchant mariner credentials for violations arising under 46 
5 

U.S.C. §§ 7703 and 7704. Under the 

respondent in default upon failure to file a timely answer to the complaint or, after motion, upon 

failure to appear at a conference or hearing without good cause shown. 33 C.F.R. § 20.310; see 

also 33 C.F.R. § 20.705. 

Respondent 30 days to explain his failure to appear, and to date, Respondent has not replied. In 

accordance with the default procedures, I find Respondent in default and GRANT the Coast 

20.310 (c), default by the respondent constitutes an admission of the facts alleged in the 

Complaint and a waiver of his right to a hearing on those facts. However, the fact that 

Respondent is in default does not, standing alone, establish a sanctionable violation. 

C. Legal Sufficiency of the Complaint 

In order for the Coast Guard to prove its prima facie case, the Complaint must set out a 

legally sufficient claim. See Peerless Industries, Inc. v. Herrin Illinois Cafe, Inc., E.D.Mo.1984, 

593 F.Supp. 1339, 774 F.2d 1172 (Court has discretion to require proof of necessary facts 

to support a valid cause of action and if such facts are lacking the court can choose not to enter 

default judgment). While the Complaint alleges Respondent took a non-DOT drug test, it 

describes t

collection. ity. Federal 

and non-Federal tests have different legal implications in Suspension and Revocation 

proceedings because, when a mariner fails a drug test mandated by 46 C.F.R. Part 16, the 

mariner is presumed to be a user of dangerous drugs. 46 CFR § 16.201(b). When the drug test is 

not among the types specifically authorized by 46 C.F.R. Part 16, the presumption does not arise 
6 

metabolite in a non-Part 16 test means that the mariner used dangerous drugs, absent evidence to 

the contrary, in addition to evidence linking the results to the mariner and proving the reliability 

Appeal Decision 2704 (FRANKS) (2014), 2014 WL 4062506, at *9. 

Although the Complaint presents as a factual allegation that Respondent is a user of, or 

addicted to, dangerous drugs, I find this to be a conclusion of law which must be supported by 

the factual allegations deemed admitted. In other words, in order to show that Respondent is a 

user of, or addicted to, dangerous drugs when relying on a non-Federal drug test, the factual 

prima facie case. 

Due to the conflict between the Complaint and the evidence about the reason for testing, 

whether the allegations in the Complaint, even when deemed admitted, established a violation of 

46 U.S.C. § 7704(b) and 46 C.F.R. § 5.35. Since it would not be in the interest of judicial 

efficiency to grant a default motion without being able to reach a conclusion as to the violation 

to supplement the record. Had Respondent responded to the Order to Show Cause, I would have 

recalled any witnesses he wished to cross-examine, but since he did not file a response, I am 

basing my review on the record as a whole, including the pleadings, witness testimony, and other 

documentary evidence. 

D.

Evidence to Prove Use of or Addiction to the Use of Dangerous Drugs 

-DOT drug test may be used to establish substantial evidence 

of drug use in these proceedings, provided that the test and its associated positive result are 

Appeal Decision 2720 (ARGAST) 

Marine Employers Drug Testing Guidance September 200

to do testing in the event of an accident that does not rise to the level of a Coast Guard mandated 
7 

SMI or marine casualty, the marine employer is not eligible to use a Federal CCF for the drug 

test, but can do a nonHere, Respondent was a crewmember aboard the BEARCAT on March 26, 2019 when it 

allided with a piling, causing minor damage to the piling. The damage was under the threshold 

for a serious marine incident pursuant to 46 C.F.R. § 4.06-3 and 46 C.F.R. § 16.240, but it is 

$100. Westar notified the testing facility that Respondent would be arriving for a post-accident 

drug test, but did not distinguish whether it was a company-directed test or a Coast Guardmandated test. 

Respondent to submit to a drug test as required company policy. Respondent provided a urine 

sample on that same day, March 27, 2019, to an On-Site Health & Safety collector. The 

collector, Mr. Carver, believed this was a DOT test and therefore used the Federal Custody and 

Control Form (CCF). (Tr. at 42-44). Although On-Site Health & Safety maintains non-DOT 

forms for other companies who use company-directed testing, there is no separate form for 

Westar Marine. (Tr. at 44-45). 

Here, it is clear that Westar Marine intended this to be a company-directed test, but 

miscommunications between Westar Marine personnel and On-Site Health & Safety personnel 

resulted in the collector using a Federal CCF. Mr. Carver testified On-Site Health & Safety 

mainly provides testing for marine construction employers, who follow different regulations than 

employers of merchant mariners. (Tr. at 45). However, the collection procedures he would have 

used for a company-directed test are identical to the procedures he used for the test in question, 

as On-Site Health & Safety collectors use DOT guidelines for every test they administer. 

Here the principal issue is whether the use of a DOT CCF for a non-DOT drug and 

alcohol test renders the test invalid. Based on the evidence in the record, I must consider the 
8 

application of 49 C.F.R. § 40.13, which details how DOT drug and alcohol tests relate to nonDOT tests. The regulations require DOT and nonin other, non-DOT tests (with one exception not relevant here). 49 C.F.R. § 40.13(b)-(d). Finally, 

-DOT drug and alcohol testing 

programs. This prohibition includes the use of the DOT forms with references to DOT programs 

and 

for non-Federal urine collections. You are also prohibited from using non-Federal forms for 

DOT urine collections. Doing either subjects you to enforcement action under DOT agency 

where the collector, either by mistake or as the only means to conduct a test under difficult 

circumstances . . . uses a non-federal form for a DOT collection, the use of a non-federal form 

does not present a reason for the laboratory to reject the specimen for testing or for an MRO to 

-Federal form is a correctable 

flaw which the MRO must correct. 49 C.F.R. § 40.47(b)(2). 

The regulations do not speak to the practical effect of using a Federal form in a nonFederal test, but in Appeal Decision 2723 (BOUDREAUX) (2019), the Commandant held the 

program by conducting their own, non-DOT chemical testing on federally-mandated DOT 

st and a non-DOT 

breath alcohol test during the same session, but under the circumstances there was no risk that 

the samples would be commingled or contaminate the DOT test. 

The mandated procedures for DOT drug testing are far more stringent than those for 

company-directed tests. Although neither the regulations nor case law addresses the precise issue 
9 

here whether the use of a Federal CCF for a company-directed test invalidates the test I 

use of a non-Federal form in a 

DOT test is not a fatal flaw, then the reverse should likewise be true, particularly since the 

regulations are designed to protect the integrity of the Federal testing process. 

While Westar Marine may wish to revisit its communication and testing protocol with 

On-Site Health & Safety in order to avoid potential penalties under 49 C.F.R. § 40.47(a), the use 

of a Federal CCF here nevertheless appears to be a genuine mistake. Westar Marine clearly did 

not intend to order a Federal test, and the use of a Federal CCF in this instance did not 

compromise the integrity of the sample itself or the DOT drug testing regime generally. 

I also find the test was reliable. The evidence shows that the urine sample was transmitted 

with proper chain of custody protections to MedTox, St. Paul, MN a SAMHSA certified 

laboratory where it was properly tested with appropriate procedures and safeguards resulting in a 

positive finding of marijuana metabolites. Dr. Dennis Thrasher, the Medical Review Officer 

April 9, 2019, and Respondent offered no medically valid explanation for the positive results. 

Respondent stated to the MRO he last used marijuana over a month before the test, but did not 

offer any reasonable medical explanation for the positive test. (Tr. at 61). 

Given the test was administered under the Federal standards and yielded a positive result, 

I find the test acceptable as evidence of drug use here. I find the facts alleged in the Complaint, 

as proved by default and supplemented by additional evidence from the Coast Guard, are 

sufficient to prove Respondent was a user of marijuana, a dangerous drug as described by 46 

U.S.C. § 7704(b) and 46 C.F.R. § 5.35. 

SANCTION 

f it is shown that a holder has been a user of, or addicted to, 
10 

revoked unless the holder provides satisfactory proof Pursuant to 46 

C.F.R. §

s hereby REVOKED.

WHEREFORE, 

ORDER 

IT IS HEREBY ORDERED GRANTED.

IT IS FURTHER ORDERED

all other documents and certificates held by Respondent are REVOKED. Respondent is to 

surrender his MMC to the nearest Coast Guard facility immediately. 

PLEASE TAKE NOTICE

representative(s) serves as notice of appeal rights set forth in 33 C.F.R. §§ 20.1001 20.1004. 

(Attachment B). 

_

George J. Jordan 

US Coast Guard Administrative Law Judge

Date: September 18, 2020
11 

ATTACHMENT A

WITNESS AND EXHIBIT LISTS 

1. Douglas Owens 

2. Benjamin Huber 

3. Brian Carver 

4. Mitch LeBard 

5. Dr. Dennis Thrasher 

6. CWO Stephen Cheney 

Number Description Status 

CG-01 

000396743 

Admitted 

CG-02 (REVISED) Westar Drug and Alcohol (D&A) policy 

requirements dated 2018 for post accident drug and alcohol 

D&A policy. 

Not Offered

CG-03 Westar Accident Report 26 March 2019 Not Offered

CG-04 Westar Daily Work Report for 26 March 2019 Not Offered

CG-05 DOT Urine Specimen Collector Certificate for Brian Carver Not Offered

CG-06 Drug Screen sign-in sheet for 27 March 2019 Not Offered

CG-07 Federal Register Notice of Certified Testing Facilities Labs 

(84 FR 37328, 1 March 2019) SAMHSA approval for 

MedTox Laboratories 

Not Offered

CG-08 FCCF Copy 1, Specimen ID Y38115825 (Test Facility 

copy) 

Not Offered

CG-09 Lab Litigation Package for Specimen ID Y38115825 Not Offered

CG-10 FCCF Copy 2, Specimen ID Y38115825 (Medical Review 

Officer (MRO) copy) 

Not Offered

CG-11 MRO certification for Dr. Dennis Thrasher, M.D. Not Offered

CG-12 MRO Notes on communication with Respondent to verify 

positive result (9 April 2019) 

Not Offered