UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

JOHN ANTHONY KOCHIS 

Respondent

_________________________________

Docket Number 2013-0337

Enforcement Activity No. 4705917

FINAL ORDER

Issued: August 24, 2016

By Administrative Law Judge: Honorable George J. Jordan

Appearances:

LCDR Benjamin M. Robinson

Sector Columbia River

For the Coast Guard

David R. Boyajian, Esq.

For the Respondent
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TABLE OF CONTENTS

I. PRELIMINARY STATEMENT.................................................................................... 2

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

III. PRINCIPLES OF LAW............................................................................................... 8

A. Standard of Proof................................................................................................... 9

B. Credibility Determination.................................................................................... 10

C. Principles of Contract Law .................................................................................. 10

D. Jurisdiction .......................................................................................................... 13

IV. DISCUSSION............................................................................................................ 13

A. The Parties’ Arguments....................................................................................... 13

B. Did Respondent prove by a preponderance of evidence that he had participated in a 

random, unannounced drug-testing program for a minimum period of one-year? ... 14

C. Did Respondent prove by a preponderance of evidence that he remained drug free during 

a one year period?...................................................................................................... 16

D. Did Respondent’s meetings with Reverend Wantland meet the requirement in the 

settlement agreement for participation in a substance abuse monitoring program? . 19

1. What Constitutes a Substance Abuse Monitoring Program?........................... 19

2. Were the Support Meetings Respondent Attended Adequate?........................ 22

3. Are the records of meetings documenting the substance abuse monitoring program 

accurate and sufficient to prove compliance with the Settlement Agreement? .... 26

E. Respondent Meets the Requirements of “Cure” .................................................. 27

V. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW .................... 29

ORDER............................................................................................................................. 29

APPENDIX A: DOCKET FILINGS ................................................................................... i

I. PRELIMINARY STATEMENT

This is a United States Coast Guard (Coast Guard) suspension or revocation proceeding, 

which was brought under 46 U.S.C. § 7701 et seq. and its underlying regulations, codified at 46 

C.F.R. Part 5. It is conducted pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 

551 et seq. See 46 U.S.C. § 7702(a). The Coast Guard contends John Kochis (Respondent) failed 

to successfully complete the requirements of a settlement agreement and seeks to implement the 
3

stayed revocation of his Merchant Mariner’s Credential (MMC or Credential). Respondent 

requested a hearing to determine whether or not he complied with the settlement agreement.

This case originally came before me when the Coast Guard filed a Complaint on 

September 10, 2013, alleging use of or addiction to dangerous drugs. (Docket Item 01).1

Specifically, the Coast Guard alleged that Respondent took a random drug test on August 14, 

2013 which tested positive for marijuana metabolites. The parties simultaneously entered into a 

settlement agreement, and I issued a Consent Order approving the settlement agreement on 

September 17, 2013. (Docket Items 05; 08).

On October 1, 2014, the Coast Guard submitted a Notice of Unsatisfactory Settlement, 

stating that Respondent tested positive for drugs in violation of the agreement. (Docket Item 10). 

Respondent requested a hearing on October 8, 2014. (Docket Item 12). I held a prehearing 

conference with the parties on October 15, 2014, at which Respondent requested the ability to 

complete the cure program again. The Coast Guard agreed, provided Respondent was subject to 

additional random drug tests under the revised settlement agreement. The Coast Guard filed the 

revised settlement agreement on November 3, 2014 and I issued a Consent Order on November 

6, 2014. (Docket Items 17; 19).2

On January 6, 2016, the Coast Guard filed a second Notice of Unsatisfactory Settlement. 

(Docket Item 21). The Coast Guard stated that “Respondent failed to attend a substance abuse 

monitoring program at least 4 meetings per month” and “Respondent failed to provide negative 

random drug tests spread reasonably throughout the year.” On January 14, 2016, Respondent 

requested a hearing to determine whether his evidence of completion was sufficient. (Docket 

 

1 The pleadings and other filings in this matter will be identified by the Docket Item Number identifier listed in the 

MISLE database, which is the official record for this proceeding. Recognizing that Respondent and his counsel—as 

well as any non-parties who may view this decision—do not have access to MISLE, I have included a full listing of 

the docket filings in this matter as Appendix A for reference purposes.

2 The revised agreement was filed as a General Motion because the docketing system does not allow multiple 

settlement agreements to be generated under the same docket number. Likewise, my Consent Order approving that 

agreement appears in the official docket under the title of General Order.
4

Item 24). Following this request, the parties submitted numerous filings and evidence and there 

were three pre-hearing conferences.

The hearing took place at the United States Bankruptcy Court in Portland, Oregon on 

May 26, 2016. LT Sonha Gomez and LCDR Benjamin Robinson represented the Coast Guard. 

David Boyajian, Esq. represented Respondent. At the conclusion of the hearing, the Coast Guard 

requested the opportunity to submit Proposed Findings of Fact and Conclusions of Law, and 

argument in support thereof. The Coast Guard submitted a post-hearing filing, but Respondent 

did not. This matter is now ripe for decision. 

I have carefully reviewed the entire record in this case, including witness testimony, 

exhibits, applicable statutes, regulations, and case law. For the reasons set forth below, I find 

Respondent in substantial compliance with the settlement agreement. Further, I find Respondent 

provided satisfactory evidence that he meets the requirements of cure as established in the period 

of stayed revocation will now be considered a period of outright suspension and his MMC shall 

be returned.

II. FINDINGS OF FACT

1. At all times relevant to the allegations in this matter, Respondent held a Coast Guardissued MMC.

2. The settlement agreement dated November 3, 2014 required Respondent to enroll in a 

drug rehabilitation program certified by a governmental agency or accepted by an 

independent professional association and provide adequate evidence of enrollment by 

December 1, 2014. (Docket Item 17).

3. Respondent successfully completed the drug rehabilitation program. (Docket Item 34;Tr. 

p. 142).

4. The settlement agreement dated November 3, 2014 required Respondent to participate in 

a random, unannounced drug-testing program for a minimum period of one-year 

following successful completion of the drug rehabilitation program. Respondent was 

required to take at least 16 random drug tests spread reasonably throughout the year, 

conducted in accordance with Department of Transportation (DOT) procedures found in 

Title 49, Code of Federal Regulations (CFR), Part 40. (Docket Item 17).
5

5. Respondent submitted the results of 16 drug tests to the Coast Guard IO. (Docket Item 

34).

6. Each of the urine collections used for testing were given at PeaceHealth in Longview, 

Washington. (Docket Item 34).

7. Six of the tests (dated 7/16/15, 9/15/15, 10/23/15, 10/28/15, 1/11/16, and 1/20/16) were 

marked “follow-up” rather than “random.” (Docket Item 34).

8. Rhonda Gonzalez of PeaceHealth confirmed that the “follow-up” notation was in error 

and that the tests were, in fact, random. (Docket Item 61).

9. Ten of the tests (dated 7/6/15, 7/16/15, 8/14/15, 8/25/15, 9/30/15, 10/9/15, 10/23/15, 

10/28/15, 11/11/15, 11/16/15, 11/24/15, 12/15/15) were “negative dilute.” (Docket Item 

34.)

10. Under the DOT rules at 49 C.F.R. Part 40, a dilute test occurs when the creatinine level is 

greater than 2 mg/dL but less than 20 mg/dL. See 49 C.F.R. § 40.93(a)(1).

11. If a negative drug test shows a creatinine level of greater than 2 mg/dL but less than 5 

mg/dL, the Medical Review Officer (MRO) must report the result to the donor’s 

employer, who may order immediate recollection under direct observation. 49 C.F.R. § 

40.155(c); see also 49 C.F.R. § 40.197(b)(1).

12. If a negative drug tests shows a creatinine level of greater than 5 mg/dL but less than 20 

mg/dL, the employer may—but is not required to—order the employee to take another 

test immediately but the test shall not be observed unless another basis for observation 

exists. 49 C.F.R. § 40.197(b)(2).

13. Drug tests with creatinine levels greater than 5 mg/dL but less than 20 mg/dL but no 

presence of drug metabolites are certified by the MRO as “negative dilute.” 49 C.F.R. § 

40.155(a)-(b).

14. Respondent was not employed by any marine employer at the time of these drug tests. 

(Tr. p. 68).

15. All of Respondent’s negative dilute drug tests showed a creatinine level above 5 mg/dL 

but below 20 mg/dL. (Docket Item 34).

16. The negative dilute tests dated 7/6/15, 7/29/15, 8/14/15, 8/25/15, 9/15/15, 9/30/15, 

10/9/15, 10/23/15, 10/28/15, 11/11/15, and 12/15/15 were all directly observed by the 

collector. (Docket Item 34).

17. Dr. Jeremy Buckell is an MRO. (Tr. p. 154).

18. Dr. Buckell issued the Return-to-Work letter in this case on December 17, 2015. (Docket 

Item 34; Tr. p. 157).

19. The cutoff level for marijuana metabolites in a DOT drug test is fifteen nanograms per 

deciliter. (Tr. p. 160).
6

20. Having a fifteen nanogram per deciliter cutoff eliminates the issue of passive exposure 

causing a positive drug test. (Tr. p. 161).

21. Dr. Buckell testified that “dilution only affects a drug screen if you are right on the 

border between positive and negative,” meaning a person who smoked marijuana and did 

not drink much might have a positive test at a level of seventeen or eighteen whereas if 

the same person drank a lot of fluids, the test might be negative at a level of twelve or 

thirteen. (Tr. p. 159).

22. None of Respondent’s tests showed the presence of any drug metabolites. (Docket Item 

34).

23. Dr. Buckell did not consider the negative dilute results to be a problem when he wrote the 

return-to-work letter. (Tr. p. 164).

24. Dr. Buckell did not have any new information since December 17, 2015 that would 

change his opinion that Respondent’s risk of drug use was sufficiently low to justify a 

return to work. (Tr. p. 163).

25. The settlement agreement dated November 3, 2014 required Respondent to “[a]ttend a 

substance abuse monitoring program (such as AA/NA) for a minimum period of one-year 

following successful completion of the drug rehabilitation program. The respondent must 

attend at least 4 meetings per month.” (Docket Item 17).

26. Programs such as Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) are peer 

support groups. (Tr. p. 57).

27. Respondent attended some NA meetings. (Docket Item 34).

28. Respondent also received private counseling from Pastor Don Wantland, at pastor at the 

Northwest Independent Church Extension in Castle Rock, Washington. (Tr. pp. 15-16, 

24).

29. Respondent submitted evidence of attendance at a total of 53 NA and private counseling 

sessions. (Docket Item 34).

30. Respondent attended more NA meetings and private counseling sessions than he 

documented for purposes of demonstrating compliance with the settlement agreement. 

(Tr. p. 48).

31. Pastor Wantland worked as a substance abuse counselor at Northern State Hospital in 

Sedro-Woolley, Washington from approximately 1975 – 1982. (Tr. p. 9).

32. Northern State Hospital provided treatment based on the same twelve-step program used 

by AA and NA. (Tr. p. 10).

33. Pastor Wantland then provided substance abuse counseling to members of his 

congregations and other members of the community in small towns including Petersburg, 

Alaska; Aberdeen, Washington; Cosmopolis, Washington; and Aiden, California. (Tr. pp. 

10, 27, 29).
7

34. During this time, Pastor Wantland utilized the twelve-step program to counsel people 

with substance abuse problems. (Tr. p. 12).

35. Pastor Wantland has not regularly counseled anyone other than family members and 

Respondent since the early 2000s. (Tr. p. 29).

36. Since 1968, Pastor Wantland has attended yearly meetings of pastors at which substance 

abuse issues are often discussed. (Tr. p. 24-25).

37. Respondent and Pastor Wantland are neighbors and friends who have known each other 

for more than ten years. (Tr. p. 14-15).

38. Respondent began receiving substance abuse counseling from Pastor Wantland 

approximately three years ago. (Tr. p. 15).

39. Respondent generally attends three or more counseling sessions per week with Pastor 

Wantland. (Tr. p. 16).

40. These sessions are generally held on an informal, ad hoc basis rather than on a formal 

schedule. (Tr. p. 34-35).

41. These sessions are holistic and do not always focus solely on drug and alcohol issues, but 

they nevertheless generally implicate Respondent’s relationship with alcohol and drugs. 

(Tr. p. 16-17).

42. Pastor Wantland testified that the counseling relationship between him and Respondent is 

ongoing, with no end in sight. (Tr. p. 20).

43. Pastor Wantland was aware that Respondent was also attending AA and NA meetings, 

and encouraged him to keep going. (Tr. p. 36).

44. Jeremy Wekell is a Substance Abuse Professional (SAP). (Tr. p. 87).

45. Mr. Wekell primarily uses the standards of the American Society for Addiction Medicine. 

(Tr. p. 124).

46. Mr. Wekell was the SAP assigned to Respondent’s case. (Tr. p. 87).

47. Mr. Wekell has had four face-to-face meetings and numerous telephone conversations 

with Respondent. (Tr. p. 100).

48. The American Society of Addiction Medicine does not define a support group in any 

particular way; rather, the recommended support system should be tailored to the 

individual client. (Tr. pp. 88, 125-26).

49. Mr. Wekell testified that private counseling is often more effective than peer support 

groups in helping a person remain free of substance abuse because it is more personalized 

to the individual’s needs. (Tr. pp. 89, 93-94; Docket Item 59).
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50. A twelve-step “sponsor” is a peer who may act as a life coach or counselor to a person in 

recovery, even though sponsors are generally not professional, licensed counselors. (Tr. 

p. 90).

51. Under the AA or NA model, anytime two people are in a room together talking about 

addiction, it qualifies as a meeting. (Tr. pp. 90-91).

52. Mr. Wekell also testified that mixing and matching different support groups or programs 

may be effective for some clients, particularly when the client takes the initiative to 

evaluate their own needs. (Tr. pp. 109, 118-19).

53. Mr. Wekell testified that a SAP generally makes the determination of whether to 

recommend support group attendance, but here the Coast Guard made the determination 

that a self-help support group was necessary. (Tr. p. 110).

54. Mr. Wekell saw Respondent’s attendance slips from NA meetings and one-on-one 

sessions with Pastor Wantland and verified them the same way he does as a state certified 

counselor for probation. (Tr. p. 115).

55. Mr. Wekell testified that Respondent meets the criteria of full sustained remission of his 

substance abuse disorder per the American Society of Addiction Medicine, and per the 

DSM5 Manual. (Tr. pp. 97-98).

56. Michelle Waltz is a SAP. (Tr. p. 51).

57. Ms. Waltz acted as a consultant for Respondent after the Coast Guard filed its Notice of 

Unsatisfactory Settlement. (Tr. p. 65-66, 70).

58. Ms. Waltz testified that the language used in the settlement agreement does not 

accurately reflect the terminology currently used by professionals in the field of 

substance abuse. (Tr. p. 65).

59. Ms. Waltz believed the support Respondent was receiving from Pastor Wantland gave 

him a better opportunity to deal with different issues affecting his recovery process than 

NA meetings would. (Tr. pp. 74-75).

60. Ms. Waltz testified that SAPs allow their clients to choose a support program that fits 

them, and this may include multiple types of support groups. (Tr. pp. 70-71).

III. PRINCIPLES OF LAW

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

at sea. 46 U.S.C. § 7701(a). In furtherance of this goal, Administrative Law Judges (ALJs) have 

the authority to suspend or revoke Coast Guard-issued credentials or endorsements. See 46 

C.F.R. § 5.19(b). These proceedings are conducted under the Administrative Procedure Act 
9

(APA), 5 U.S.C. § 551 et seq. 46 U.S.C. § 7702(a). Section 7(c) of the APA places the burden of 

proof on the proponent of a rule or order, unless otherwise provided by statute. The fact-finder 

must consider the “whole record or those parts thereof cited by a party and supported by and in 

accordance with the reliable, probative, and substantial evidence” before assessing a sanction. 5 

U.S.C. § 556(d).

This hearing was held to determine whether or not Responded successfully completed the 

terms of the settlement agreement. Respondent exercised his right to request a hearing to 

determine whether the evidence of completion he submitted to the Coast Guard was adequate. 

Typically, the Coast Guard bears the burden of proof in suspension and revocation proceedings, 

however, Respondent is the movant here and bears the burden of showing that his evidence of 

completion satisfies the requirements of the agreement.

A. Standard of Proof

The standard of proof in administrative proceedings is the “preponderance of the 

evidence” standard, meaning a party must prove that a “fact’s existence is more likely than not.” 

Steadman v. SEC, 450 U.S. 91, 98 (1981); Greenwich Collieries v. Dir., Office of Workers’ 

Comp. Programs, 990 F.2d 730, 736 (3d Cir. 1993). Evidentiary rules under the APA are less 

strict than in jury trials, and only irrelevant, immaterial, or unduly repetitious evidence need be 

excluded. See 5 U.S.C. § 556(d); Gallagher v. Nat’l. Transp. Safety Bd., 953 F.2d 1214, 1214 

(10th Cir. 1992); Sorenson v. Nat’l. Transp. Safety Bd., 684 F.2d 683, 688 (10th Cir. 1982). 

Moreover, evidence “need not be authenticated with the precision demanded by the Federal 

Rules of Evidence” in order to be admissible in an administrative proceeding. Gallagher at 1218; 

Appeal Decision 2664 (SHEA) (2007).
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B. Credibility Determination 

When evaluating the evidence in the record, an ALJ must make determinations as to its 

credibility and reliability. The ALJ “is vested with broad discretion in making determinations 

regarding the credibility of witnesses and in resolving inconsistencies in the evidence.” Appeal 

Decision 2519 (JEPSON) (1991). This is because, as the presiding official, the ALJ “can fully 

observe the response, character and demeanor of the witnesses in issue.” Id. The salient question 

in determining a witness’s credibility is whether the testimony in the record is well-supported 

and believable; “[t]he presence of evidence which conflicts with the testimony of a witness is 

not, in itself, enough to conclusively show a lack of credibility of that witness when there is 

substantial evidence that supports his account.” Appeal Decision 2017 (TROCHE) (1975).

Some factors traditionally used in assessing credibility include, but are not limited to, 

“(1) the demeanor of the witness, (2) the inherent plausibility of the witness's testimony, (3) the 

consistency of the testimony of the witness with prior statements of the witness, (4) the internal 

consistency of the witness's statements, (5) the consistency of the testimony with other evidence, 

(6) the accuracy of the witness's testimony, and (7) the interest of the witness in the outcome of 

the proceeding.” St. Claire Marine Salvage, Inc. v. Bulgarelli, No. 13-10316, 2014 WL 3827213, 

at *6 (E.D. Mich. Aug. 4, 2014), aff'd (July 22, 2015). A credibility assessment is generally 

based on the totality of the circumstances, after all relevant factors are taken into account. Id.

C. Principles of Contract Law

This case also implicates general principles of contract law. “An agreement to settle a 

legal dispute is a contract and its enforceability is governed by familiar principles of contract 

law.” Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989). With limited exceptions, “[f]ederal 

law controls the interpretation of a contract entered pursuant to federal law when the United 

States is a party.” Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1032 (9th Cir. 
11

1989). Here, the United States Coast Guard is a party to the settlement agreement and the dispute 

stems from the enforcement of federal marine safety laws.

The interpretation of a settlement agreement “begins first with the terms of the 

agreement, and parole or extrinsic evidence is considered only if the language of the contract is 

ambiguous.” Mariano v. Department of Veterans Affairs, 70 Fed.Appx. 552, 2003 WL 21675118 

(Fed. Cir. 2003). If a contract is unclear on any particular point, it “must be interpreted as a 

whole, giving a reasonable, lawful, and effective meaning to all its terms.” 1010 Potomac Assoc. 

v. Grocery Mfrs. of Am., Inc., 485 A.2d 199, 205 (D.C. Cir. 1984); see also Restatement of 

Contracts § 236 (1925). However, ambiguous provisions should be construed against the drafter 

of the contract. Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465, 1485-86 (D.C. Cir. 1997), citing 

Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 (1995). “The reason for this rule 

is to protect the party who did not choose the language from an unintended or unfair result. 

Mastrobuono at 63.

Additionally, in assessing compliance with a settlement agreement, “the relevant standard 

is substantial compliance” with its terms. Jeff D. v. Otter, 643 F.3d 278, 283–84 (9th Cir. 2011). 

Settlement agreements, like consent decrees, have “many of the attributes of ordinary contracts 

[and] ... should be construed basically as contracts,” thus applying the doctrine of substantial 

compliance, or substantial performance, is appropriate. Id. (quoting United States v. ITT Cont'l 

Baking Co., 420 U.S. 223, 236 (1975)). See also Langton v. Johnston, 928 F.2d 1206, 1220–23 

(1st Cir.1991) (noting that the consent decrees at issue, “like most such decrees, were susceptible 

to satisfaction by diligent, good faith efforts, culminating in substantial compliance” and that 

“‘letter-perfect compliance’ is not required...”). The phrase “substantial compliance” implies 

“something less than a strict and literal compliance with the contract provisions but 

fundamentally it means that the deviation is unintentional and so minor or trivial as not 
12

‘substantially to defeat the object which the parties intend to accomplish.’” Wells Benz, Inc. v. 

United States, 333 F.2d 89, 92 (9th Cir.1964) (internal citations omitted).

Finally, in this decision I must consider whether Respondent provided evidence that he 

has met all the requirements concerning aftercare and drug testing required under the “cure” 

standard set out in Appeal Decision 2535 (SWEENEY) (1992) and the NTSB and Coast Guard 

decisions interpreting it. In Appeal Decision 2667 (THOMPSON) (2007), the Commandant 

concisely laid out the requirements for establishing cure:

In Coast Guard suspension and revocation proceedings, the burden 

of establishing “cure” is on the Respondent. See Appeal Decisions 

2638 (PASQUARELLA) and 2526 (WILCOX). Prior 

Commandant Decisions on Appeal make clear that to establish 

cure under 46 U.S.C. § 7704(c), a mariner must: (1) successfully 

complete a bona fide drug abuse rehabilitation program, and (2) 

demonstrate a complete non-association with drugs for a minimum 

of one year following the successful completion of the drug abuse 

program. See Appeal Decisions 2638 (PASQUARELLA) and 2546 

(SWEENEY). In addition, pursuant to 46 C.F.R. § 16.201(f), 

“[b]efore an individual who has failed a required chemical test . . . 

may return to work aboard a vessel, the MRO must determine that 

the individual is drug-free and the risk of subsequent use of 

dangerous drugs by that person is sufficiently low to justify his or 

her return to work.” Finally, because a mariner is not authorized to 

sail under the authority of his or her credential until all of the 

requirements of cure are satisfied, the Coast Guard must retain a 

mariner’s credential during the cure process. See Appeal Decisions 

2638 (PASQUARELLA) and 2634 (BARETTA); Commandant 

Decision on Review #18 (CLAY).

I will also consider the provisions of 46 C.F.R § 5.901(d), which permits the Commandant to 

waive the three-year waiting period during which a person whose credential or endorsement was 

revoked or surrendered due to simple possession or use of dangerous drugs cannot reapply for an 

MMC. The conditions for waiving the waiting period are that the person (1) has successfully 

completed a bona fide drug abuse rehabilitation program; (2) has demonstrated complete nonassociation with dangerous drugs for a minimum of one year following completion of the 
13

rehabilitation program and; (3) is actively participating in a bona fide drug abuse monitoring 

program. Id.

D. Jurisdiction

Under the provisions of the settlement agreement, I have jurisdiction to conduct a hearing 

if, within 10 days after receiving notice from the Coast Guard that it rejected his evidence, 

Respondent files a written request with the Docketing Center. See Agreement ¶ 3c. Respondent 

made a timely request, thus jurisdiction exists.

IV. DISCUSSION

A. The Parties’ Arguments

Respondent asserts that he has complied with the settlement agreement by (1) completing 

a outpatient treatment program; (2) being subject to random unannounced drug-testing and 

having fourteen negative tests; (3) attending NA meeting and receiving drug counseling from a 

pastor; (4) receiving a MRO return to work letter.

The Coast Guard argues that Respondent failed to comply with the settlement agreement 

in several respects. First, Respondent failed to prove by a preponderance of evidence that he had 

participated in a random, unannounced drug-testing program for a minimum period of one-year. 

Second, Respondent failed to prove by a preponderance of evidence that he remained drug free 

during a one year period. Third, Respondent’s meetings with Reverend Wantland did not meet 

the requirement in the settlement for participation in a substance abuse monitoring program. 

Fourth, the records of meetings forming part of the substance abuse monitoring program were 

inaccurate and do not prove compliance with the Settlement Agreement.
14

B. Did Respondent prove by a preponderance of evidence that he had participated 

in a random, unannounced drug-testing program for a minimum period of oneyear?

In its post-hearing brief, the Coast Guard argues that Respondent did not specifically 

offer as evidence the drug tests he had submitted during the prehearing phase. Under Coast 

Guard procedural rules, the party offering an exhibit must mark it, see 33 C.F.R. § 20.807(a), and 

must provide advance notice of its intent to offer an exhibit as evidence at hearing, see 33 C.F.R. 

§ 20.601. The Coast Guard contends that “Respondent did not offer the test results as evidence, 

nor were they marked and included in the record otherwise. Consequently, they cannot be 

considered.” (CG Post-Hearing Brief at 8-9).

At the conclusion of the March 3, 2016 telephonic prehearing conference, I ordered both 

parties to submit all documents in their possession relevant to the issue of whether Respondent 

satisfactorily completed the terms of the settlement agreement. On March 4, the Coast Guard 

submitted copies of the drug tests in question. (EX CG-3). Respondent also supplied copies of 

those tests. Accordingly, these exhibits are part of the record of this proceeding. 

The main purpose of the hearing was to determine whether Respondent’s pastor was 

qualified to provide aftercare support and whether their meetings were adequate for purposes of 

the settlement agreement; if not for this issue, I likely would have issued a decision on the record 

instead of holding a hearing. The parties had previously consented to the filing of this Settlement 

Agreement “without a hearing on any issue of fact or adjudication on any issue of law” and this 

hearing is pursuant to that agreement. It is not a proceeding on the merits of the Complaint under 

33 C.F.R. Part 20. (Docket Item 17, Revised Settlement) Thus, the Coast Guard’s procedural 

argument about the exhibits is extraneous as to the narrow issues the hearing was intended to 

resolve, and I will not consider it now. 

During an April 18, 2016 telephonic prehearing conference, the Coast Guard stated that 

it was no longer objecting to the drug tests. Further, at this conference both parties agreed the 
15

only issues remaining for the hearing were 1) whether Pastor Wantland had the qualifications to 

provide appropriate counseling under the settlement agreement, and 2) whether Respondent was 

permitted to utilize both AA/NA and another type of aftercare. However, despite the parties’ 

agreement to narrow the relevant issues, the Coast Guard subsequently asked me to hear 

evidence regarding the Settlement Agreements’ terms about substance abuse monitoring 

attendance and random drug tests with dilute negative test results. As a result, I directed the 

parties to attend another telephonic prehearing conference on May 16, 2016 at which I held that 

the parties had already limited the scope of the hearing. Notwithstanding that holding, I decided 

the Coast Guard would be allowed to pose questions to the MRO concerning dilute tests, but the 

other issues had been waived and the Coast Guard was not permitted to re-raise them. 

Following multiple prehearing conferences and the in-person hearing, the Coast Guard 

has argued for the first time in its post-hearing brief that “the proffered test results do not meet 

the requirements because they began in July 2015, seven months after the settlement agreement 

began and six months after Respondent completed ASAM Level 1.0 care on December 1, 2014. . 

. . Given this seven month gap, Respondent’s drug testing cannot be considered “reasonably 

spread throughout the year” as required by paragraph 2.c. of the Settlement Agreement.” (CG 

Post-Hearing Brief at 9). While I acknowledge that the Settlement Agreement does contain the 

requirement for reasonable spacing of tests, there are several major problems with the Coast 

Guard’s argument. First, this issue was not before me because the Coast Guard had not 

previously raised it, and the scope of the hearing was limited based on the parties’ agreements 

during the prehearing conferences.

Additionally, the requirement for drug tests to be both “random” and “reasonably spaced” 

is problematic. The definition of “random” is “chosen, done, etc., without a particular plan or 

pattern.” See http://www.merriam-webster.com/dictionary/random. To reasonably space the tests 

implicates some sort of plan or pattern. Moreover, Respondent did not determine when he would 
16

be called to take a drug test and should not be penalized for the testing facility’s determinations. 

The only aspect of testing Respondent controlled was enrolling in an appropriate program to 

ensure he was subject to random testing. See Appeal Decision 2669 (LYNCH) (2007) (“the term 

‘random’ drug testing contemplates a situation where the mariner does not have any control over 

when and where drug testing is administered.”). Respondent participated in such a program and 

took the required number of tests to substantially comply with the settlement agreement; he is 

also clearly in compliance with Sweeney, which only requires the mariner be subject to testing.

The Coast Guard also challenges the tests by stating, “Respondent offered no evidence 

that the tests were random; although some of the test results proffered were marked as such, 

others were not.” (CG Post-Hearing Brief at 9). This argument is wholly inconsistent with the 

record. During the pre-hearing process, Respondent submitted into the record a letter from 

PeaceHealth Medical Group, dated March 7, 2016, which confirmed that all tests marked 

“Follow-up” were done so in error; all the tests Respondent took were random and should have 

been marked as such. (Docket Item 61). The Coast Guard received and reviewed this letter prior 

to the April 18, 2016 pre-hearing conference, and agreed during the conference that it was 

satisfied with the number and randomness of the tests. Even if the Coast Guard had not waived 

the issue, Respondent’s evidence is sufficient to prove that his tests were random, as required by 

the settlement agreement.

C. Did Respondent prove by a preponderance of evidence that he remained drug 

free during a one year period?

In the Notice of Failure to Complete, the Coast Guard alleges Respondent did not submit 

the required number of negative drug tests. The Coast Guard’s main contention is that a 

“negative dilute” drug test is not considered a “negative” test for purposes of the settlement 

agreement. Respondent disagreed, stating that the DOT drug testing standards at 49 C.F.R. Part 

40, which the Coast Guard uses in implementing its drug testing program, consider a negative 
17

dilute to be a negative test. At the May 16, 2016 prehearing conference, I stated that I would

allow the Coast Guard to posit questions to the MRO concerning the dilute tests. Accordingly, 

this issue is within the scope of the hearing.

The Coast Guard contends in its post-hearing brief that the “Medical Review Officer’s 

testimony at the hearing established that a dilute test result may contain drug metabolites. This 

fact is also reflected in the regulations governing urine sample collection and testing, which 

allow the marine employer to direct immediate retesting following a negative dilute test result 

and treat a failure to complete such a test a refusal. 46 C.F.R. §§ 40.155, 40.197. In light of the 

fact that ten of the 16 tests proffered noted dilute results . . . the record cannot support a finding 

by a preponderance of evidence that respondent remained drug free for a year.” (CG PostHearing Brief at 9-10).

The Coast Guard’s post-hearing brief misrepresents the MRO’s testimony. While Dr. 

Buckell did testify that a negative dilute drug test could contain drug metabolites, he did not 

testify that this was true for any of Respondent’s tests. Dr. Buckell’s testimony established that 

there is a cutoff level above which a urine sample is classified as positive for drug metabolites. 

(Tr. pp. 160-61). Any urine sample—whether dilute or not—may contain drug metabolites but be 

classified as negative if the metabolite level is below the minimum threshold. (Tr. pp. 160, 165). 

Dr. Buckell testified that it is possible for a person whose drug metabolite level is very close to 

the threshold to test positive with a concentrated urine sample but negative if the urine is 

sufficiently diluted. (Tr. pp. 159, 165). However, based on my review of Respondent’s drug 

tests, I note that none of them showed any evidence of drug metabolites. (Docket Item 34). If 

Respondent had attempted to defeat the drug tests by drinking fluids so his samples were dilute, 

the test results would still have showed a low concentration of drug metabolites. Dr. Buckell also 

testified that he would not expect a person to be able to defeat multiple tests in a row by way of 

dilution. (Tr. pp. 165-66).
18

The Coast Guard’s argument is also inconsistent with DOT policy. In scenarios where an 

MRO informs a marine employer that one of its employees’ tests was negative and dilute, the 

employer must take the following action:

(1) If the MRO directs you to conduct a recollection under direct 

observation (i.e., because the creatinine concentration of the 

specimen was equal to or greater than 2mg/dL, but less than or 

equal to 5 mg/dL (see § 40.155(c)), you must do so immediately.

(2) Otherwise (i.e., if the creatinine concentration of the dilute 

specimen is greater than 5 mg/dL), you may, but are not required 

to, direct the employee to take another test immediately.

(i) Such recollections must not be collected under direct 

observation, unless there is another basis for use of direct 

observation (see § 40.67 (b) and (c)).

(ii) You must treat all employees the same for this purpose. For 

example, you must not retest some employees and not others. You 

may, however, establish different policies for different types of 

tests (e.g., conduct retests in pre-employment situations, but not in 

random test situations). You must inform your employees in 

advance of your decisions on these matters.

49 C.F.R. § 40.197. Here, no marine employer was involved and the record contains no evidence 

that Respondent was ever informed that some of his tests were dilute. Moreover, the settlement 

agreement is silent as to the effect of a dilute test, so Respondent had no indication that the 

Investigating Officer would reject an otherwise-compliant drug test until he received the Notice 

of Failure to Complete.

The mere fact that a negative dilute urine sample could contain drug metabolites does not 

mean that every negative dilute test is automatically suspect or invalid. Here, all of Respondent’s 

dilute tests contained creatinine levels greater than 5 mg/dL, and may therefore be deemed 

acceptable for purposes of the DOT drug testing program. They were negative for any drug 

metabolites whatsoever. Additionally, the record establishes that these tests were observed tests. 

It is clear that these tests are valid and acceptable for DOT and Coast Guard testing purposes, 

and the Coast Guard cannot refuse to accept them for this reason. If the Coast Guard wishes to 

adopt a policy that negative dilute samples are not acceptable for purposes of its settlement 
19

agreements, it must use an appropriate method to set out that policy prior to entering into such 

agreements.

Respondent has proved by a preponderance of the evidence that he remained drug-free 

for the requisite period of time. He submitted the required number of drug tests, all of which 

were acceptable under DOT and Coast Guard drug testing standards. He has satisfied this 

requirement of the settlement agreement.

D. Did Respondent’s meetings with Reverend Wantland meet the requirement in 

the settlement agreement for participation in a substance abuse monitoring 

program?

The Coast Guard’s argument is that paragraph 2.d. of the settlement agreement:

requires participation in “a substance abuse monitoring program

(such as AA/NA).” (emphasis added). Respondent’s participation 

in NA was not sufficient to meet the four monthly meeting 

requirement. The remaining meetings with Reverend Wantland 

cannot be considered part of a ‘program’ under any definition of 

the word. There was no recognized methodology used by Reverend 

Wantland. 

(CG Post-Hearing Brief at 11). They also argue that the “Settlement Agreement’s plain language 

requires four meetings per month in a single program.” (Id.)

Respondent’s position is that the Term “Substance Abuse Monitoring Program” as used 

in the Settlement Agreement is vague and ambiguous, and that AA and NA are not monitoring 

programs but self-help support groups. Further, Respondent argues that the counseling he 

received from Pastor Wantland met the requirements of the settlement agreement. (Tr. pp. 5, 

217, 220).

1. What Constitutes a Substance Abuse Monitoring Program?

The language of the settlement agreement requires Respondent to “[a]ttend a substance 

abuse monitoring program (such as AA/NA) for a minimum period of one-year following 

successful completion of the drug rehabilitation program. The respondent must attend at least 4 
20

meetings per month.”3The Coast Guard argues that meetings with Reverend Wantland cannot be 

considered part of a “program” under any definition of the word. Thus, I must consider the 

meaning of the term substance abuse monitoring program to determine whether Respondent 

complied with the agreement.

I note that the word “program” is very broad. It may be defined as “a plan or system 

under which action may be taken toward a goal,” see http://www.merriamwebster.com/dictionary/program, or “a planned, coordinated group of activities, procedures, etc., 

often for a specific purpose, or a facility offering such a series of activities: a drug rehabilitation 

program; a graduate program in linguistics,” see http://www.dictionary.com/browse/program. 

Moreover, the word “program” does not stand alone as a requirement under the settlement 

agreement. Instead, the agreement requires Respondent to “attend a substance abuse monitoring 

program.” (Emphasis added). This entire phrase must be read together in determining what the 

settlement agreement specifically requires of Respondent.

The settlement agreement is meant to implement the definition of cure found in Sweeney. 

I find that the best interpretation of the phrase substance abuse monitoring program is aftercare, 

following completion of a drug rehabilitation program, which is intended to monitor individuals 

for drug use and prevent relapse; it may or may not include additional treatment or counseling. 

This interpretation is buttressed by Sweeney, which states that an additional element of cure, 

beyond simply completing a recognized drug treatment program, is that “the respondent must 

have successfully demonstrated a complete non-association with drugs for a minimum period of 

one year following successful completion of the rehabilitation program.” Id. Additionally, “[t]his 

includes participation in an active drug abuse monitoring program which incorporates random, 

 

3

I note that, while the Motion submitted in connection with the Revised Settlement Agreement explains that the 

random, unannounced drug testing requirement would be increased from the standard 12 tests to 16 in a one-year 

period, it did not specifically point out that the self-help meeting requirement also increased from two to four per 

month.
21

unannounced testing during that year.” Id.; see also Appeal Decision 2669 (LYNCH). I also note 

that the Coast Guard Marine Employers Drug Testing Guide does not use the phrase substance 

abuse monitoring program, instead describing the settlement agreement as including “12 months 

of aftercare, consisting of documented attendance of support meetings like AA/NA (at least two 

meetings per month), not less than 12 unannounced random drug tests in 12 months (all must be 

negative), and obtain a return to work letter from the MRO.”

The settlement agreement provides “such as AA/NA” as an example of a substance abuse 

monitoring program. This introduces confusion and inconsistency, as AA and NA are support 

groups and are not—in and of themselves—substance abuse monitoring programs. The 

Commandant has previously acknowledged that AA “is a support group for men and women 

seeking to maintain sobriety from alcohol. . . . AA does not keep membership records or case 

histories, make medical or psychiatric prognosis, or provide letters of reference to agencies or 

employers.” Appeal Decision 2657 (BARNETT) (2006). Likewise, “Narcotics Anonymous is 

not affiliated with other organizations, including other twelve step programs, treatment centers, 

or correctional facilities. As an organization, NA does not employ professional counselors or 

therapists nor does it provide residential facilities or clinics. Additionally, the fellowship does 

not offer vocational, legal, financial, psychiatric, or medical services.” See Information about 

NA, http://www.na.org/?ID=PR-index. Neither AA nor NA monitors drug use or offers random, 

unannounced drug testing to participants.

Paragraph 2(d) of the settlement agreement is clearly ambiguous, thus I must interpret it 

“as a whole, giving a reasonable, lawful, and effective meaning to all its terms.” 1010 Potomac 

Assoc. v. Grocery Mfrs. of Am., Inc., 485 A.2d at 205. I must also consider whether 

Respondent’s interpretation is reasonable, to protect him from “an unintended or unfair result.” 

Mastrobuono, 514 U.S. at 63. Reading the settlement agreement as a whole, it appears to require 

Respondent to participate in a broad-based substance abuse monitoring program, which includes 
22

both random, unannounced testing to demonstrate complete non-association with drugs and 

sustained attendance at recovery support meetings. In Respondent’s case, the agreement required 

him to attend four such meetings per month.

2. Were the Support Meetings Respondent Attended Adequate?

The agreement does not specifically mandate attendance at AA and/or NA meetings, to 

the exclusion of any other form of support meeting. The mention of AA/NA merely provides an 

example; this is the accepted meaning of the term such as. See Merriam-Webster Online 

Dictionary, http://www.merriam-webster.com/dictionary/such%20as (“used to introduce an 

example or series of examples”); Webster's New World Dictionary (3rd coll. ed.1988) 1337 

(means “for example” or “like or similar to.”). Use of the term such as “demonstrates that the 

[terms] after that phrase are not intended to constitute an exhaustive list, but rather are to serve as 

examples...” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).

The agreement provides examples of two well-known organizations4that offer support 

meetings that comply with the aftercare requirement. An individual who attended other addiction 

and substance abuse support groups, including but not limited to SOS, SMART, Celebrate 

Recovery, and/or Rational Recovery would also be in compliance with the agreement. 

Moreover, an individual is not limited to attending only one organization or provider’s 

meetings. SAMHSA suggests to practitioners that “Clients should be encouraged to attend 

different groups until they find one in which they are comfortable.” See SAMSHA, An 

Introduction to Mutual Support Groups for Alcohol and Drug Abuse, Substance Abuse in Brief 

Fact Sheet, Spring 2008, Vol. 5 Issue 1 http://www.samhsa.gov/shin. Mr. Wekell testified that 

“forcing somebody to go to a group that they don’t want to go to is probably not going to give 

the best results” and that client input is important. (Tr. p. 110). It would not be consistent with 
23

public policy to hold that a respondent who attended one provider’s meeting and saw little value 

in it could not change programs and still comply with the settlement agreement. As long as each 

support group or provider a respondent utilizes offers services within the scope of the aftercare 

requirement, he or she should not be penalized for creating a personalized, effective support 

system.

The next question is whether Respondent’s one-on-one meetings with Pastor Wantland 

are an adequate form of support under the aftercare requirement in the settlement agreement. I 

find that they are. Pastor Wantland is sufficiently qualified to offer substance abuse counseling. 

He had prior experience working as a substance abuse counselor at Northern State Hospital in 

Sedro-Woolley, Washington. (Tr. p. 9). The counseling he provided there was based on the same 

twelve-step program used by AA and NA. (Tr. p. 10). As a pastor, he has received at least some 

additional training in counseling congregants on substance abuse-related issues. (Tr. pp. 24-25). 

He later provided substance abuse counseling to members of his various congregations, but has 

not regularly counseled anyone other than family members and Respondent since the early 

2000s. (Tr. pp. 15, 29). Respondent began receiving substance abuse counseling from Pastor 

Wantland approximately three years ago and has continued his sessions beyond the end date of 

the settlement agreement. (Tr. pp. 15, 20).

The Coast Guard has attempted to argue that only group meetings should qualify, and 

that one-on-one support is not a valid option under the settlement agreement. (CG Post-Hearing 

Brief at 10). The Coast Guard also argues that “because Reverend Wantland did not have 

personal experience with addiction and was himself unfamiliar with the sponsorship model, there 

is no evidence that their relationship followed this model.” (Id.) I do not accept these arguments. 

Pastor Wantland testified that he used a similar twelve-step program to those found at AA and 

 

4

I note that an individual cannot attend an “AA/NA” meeting, as described in the settlement agreement, because 

Alcoholics Anonymous and Narcotics Anonymous are distinct organizations and hold separate meetings.
24

NA during his work as a drug counselor at Northern State Hospital. Clearly, he was familiar with

the basic model utilized in those programs. Moreover, I do not accept that only people who have 

experienced addiction personally are qualified to offer support to other people in recovery. Mr. 

Wekell, Respondent’s assigned SAP, testified that peer support does not need to come from 

people with similar addiction problems; “[i]t’s not uncommon that people have a positive 

relationship with other people in the community, you know, maybe a police officer, or it might 

be a chaplain or a priest, you know, as well as a school teacher.” (Tr. p. 107). The main criterion 

for being supportive is simply that the person is a positive influence and reminds the addict to 

“live a better life.” (Id.)

The substance abuse professionals who testified in this matter supported Respondent’s 

choice to engage in one-on-one counseling in addition to attending NA group meetings. As 

required by the settlement agreement, Respondent’s SAP, Jeremy Wekell, evaluated him and 

prescribed a course of education and/or treatment. DOT rules require that the SAP: 

Recommend a course of education and/or treatment with which the 

employee must demonstrate successful compliance prior to 

returning to DOT safety-sensitive duty.

(1) You must make such a recommendation for every individual 

who has violated a DOT drug and alcohol regulation.

(2) You must make a recommendation for education and/or 

treatment that will, to the greatest extent possible, protect public 

safety in the event that the employee returns to the performance of 

safety-sensitive functions.

(c) Appropriate education may include, but is not limited to, selfhelp groups (e.g., Alcoholics Anonymous) and community 

lectures, where attendance can be independently verified, and bona 

fide drug and alcohol education courses.

(d) Appropriate treatment may include, but is not limited to, inpatient hospitalization, partial in-patient treatment, out-patient 

counseling programs, and aftercare.

49 C.F.R. § 40.293. Mr. Wekell testified that Respondent complied with the course of treatment 

he prescribed, and that he included the requirement for attendance at a self-help or peer-support 

group because it was mandated by the settlement agreement and not because he felt it was 
25

necessarily appropriate for Respondent’s recovery. He also said that private counseling is often 

more effective than peer support groups in helping a person remain free of substance abuse 

because it is more personalized to the individual’s needs. He testified that receiving multiple 

types of support, such as a mixture of peer support groups and private counseling, may be 

effective for some individuals. (Tr. p. 109; Docket Item 59). Mr. Wekell was aware that 

Respondent was receiving counseling from Pastor Wantland and believed it was a valuable tool 

in Respondent’s recovery. (Id.)

Another SAP, Michelle Waltz, acted as a consultant for Respondent. Ms. Waltz believed 

the support Respondent was receiving from Pastor Wantland was equivalent to or better than the 

support he would receive at AA/NA meetings. The testimony from Mr. Wekell and Ms. Waltz

establishes that one-on-one counseling is an adequate form of support for some people 

recovering from substance addiction. 

After evaluating all the evidence in the record, I find that Respondent has submitted 

ample evidence to show he complied with the requirement to attend at least four support 

meetings per month as part of his aftercare, and the Coast Guard’s attempts to rebut this are 

unpersuasive. The settlement agreement did not mandate Respondent to attend only AA or NA 

meetings, and it did not limit the type of self-help Respondent could seek as part of his aftercare. 

Respondent clearly believed his one-on-one counseling sessions with Pastor Wantland were a 

valuable tool in his recovery, and was permitted to combine these sessions with attendance at

group meetings run by other organizations like NA. All of Respondent’s one-on-one and group 

meetings, in combination with his participation in random, unannounced drug testing, constitute 

an adequate substance abuse monitoring program for purposes of the settlement agreement.
26

3. Are the records of meetings documenting the substance abuse monitoring 

program accurate and sufficient to prove compliance with the Settlement 

Agreement?

The Coast Guard argues that the evidence at the hearing indicated that the records 

provided to the Coast Guard to fulfill paragraph 2.k. were unreliable. This issue was not alleged 

in the notice of failure to complete or raised prior to hearing. At the pre-hearing conferences, we 

attempted to identify all issues the parties would be arguing at the hearing. The accuracy of the 

documentation was not noticed, and was beyond the scope of the hearing and outside the scope 

of impeachment. Accordingly, I did not allow the Coast Guard to call an unnoticed witness. The 

Coast Guard proffered that this witness would have testified that one date was inaccurate, and 

that another witness would have testified that two more dates were inaccurate. However, the 

Coast Guard was prohibited from calling the second witness because she was one of the 

investigating officers presenting the case: generally, the Coast Guard does not allow 

investigating officers to testify in a case that they present. Appeal Decisions 1716 (ROWELL) 

(1968), 2455 (WARDELL) (1987) and 2571 (DYKES) (1995).

At the hearing, for the first time in this proceeding, the Coast Guard alleged that the 

records showing attendance at both AA or NA group meeting and one-on-one meetings with 

Pastor Wantland were created months after the alleged meetings occurred, and were created by 

Respondent and his wife. This argument, which is unsupported by the evidence, is problematic 

for other reasons, as well.

First, the Coast Guard does not provide any examples of acceptable forms for 

documenting attendance at self-help meetings, but requires proof of attendance in the settlement 

agreement and generally accepts what respondents submit. The NA website states that 

“[m]embership in Narcotics Anonymous is voluntary; no attendance records are kept either for 

NA’s own purposes or for others.” NA Information, supra. Thus, any records generated in 

connection with these meetings are by nature incomplete and not kept in the ordinary course of 
27

business. The settlement agreement obligated Respondent to document his attendance at selfhelp meetings in order to demonstrate compliance, and this necessarily required him to create 

and maintain his own records. Respondent attempted to comply, and should not be held to an 

impossible standard in doing so.

Similarly, the Coast Guard argued that the records documenting Respondent’s one-onone meetings with Pastor Wantland were improperly documented. Again, I note that either 

Respondent or Pastor Wantland had to create the attendance slips because no sample forms 

existed. Moreover, Pastor Wantland testified that he attested the dates of their meetings, and that 

he and Respondent had more counseling sessions than they documented for purposes of the 

settlement agreement. I find his testimony credible and find the documentation adequate.

Finally, the Coast Guard attempted to specifically contest Respondent’s attendance at 

three sessions. The documentation Respondent submitted established 51 meetings in less than 12 

months.5Thus, even if those three meetings were discounted, the record would still show that 

Respondent attended least 48 meetings within the required time frame. 

E. Respondent Meets the Requirements of “Cure”

As discussed above, to establish cure under 46 U.S.C. § 7704(c) a mariner must: (1) 

successfully complete a bona fide drug abuse rehabilitation program, and (2) demonstrate a 

complete non-association with drugs for a minimum of one year following the successful 

completion of the drug abuse program. Further, pursuant to 46 C.F.R. § 16.201(f), “[b]efore an 

individual who has failed a required chemical test for dangerous drugs may return to work 

aboard a vessel, the MRO must determine that the individual is drug-free and the risk of 

 

5 Respondent claims that a Coast Guard IO called him in early December 2015 to request all his documentation, 

even though he had until February 1, 2016 to demonstrate compliance. While I did not reach the merits of his 

argument, I do note that the Notice of Failure to Complete was served on January 6, 2016, nearly a month before the 

compliance date in the agreement.
28

subsequent use of dangerous drugs by that person is sufficiently low to justify his or her return to 

work.”

It is undisputed that Respondent completed the required drug rehabilitation program. 

Petitioner has also demonstrated his non-association with drugs for a minimum of one (1) year as 

evidenced by participation in an active drug abuse monitoring program which incorporated 

random, unannounced testing. He has provided evidence that he was subject to random, 

unannounced testing and has provided the results of those random drug tests with no unexcused 

or missing tests.

Both the SAP and the MRO noted that the observed dilute negative tests are acceptable as 

random tests under DOT drug testing rules. The SAP also conducted a follow-up evaluation 

under 49 C.F.R. § 40.301 and found that Respondent meets the criteria for Full Sustained 

Remission of a substance use disorder and at low risk of re-offense. The MRO has concurred 

with those finding and has issued a return to work letter finding that Petitioner is drug-free and 

the risk of subsequent use of dangerous drugs by the Petitioner is sufficiently low to justify his 

return to work Such a determination by the MRO is an essential factor under Sweeney and the 

settlement agreement. 

The purpose of the regulations for suspension and revocation proceedings is remedial and 

intended to maintain standards for competence and conduct essential to the promotion of safety 

at sea. 46 C.F.R. § 5.5. Based on the totality of evidence in record, I find that Respondent has 

provided sufficient evidence to establish “cure” under Appeal Decision 2535 (SWEENEY) and 

the NTSB and Coast Guard decisions interpreting it. Further, I find that the Respondent has 

substantially complied with the settlement agreement. Therefore the Stayed Revocation is 

converted to an Outright Suspension for the period of deposit and Respondent’s merchant 

mariner credential must be returned. 
29

V. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Respondent and the subject matter of this proceeding are properly within the jurisdiction 

of 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.

2. Respondent has substantially complied with the requirements of the settlement 

agreement. 

3. Respondent has successfully completed the requirements of cure. Appeal Decision 2535 

(SWEENEY). 46 C.F.R. § 16.201.

ORDER

IT IS HEREBY ORDERED THAT Respondent has demonstrated successful 

completion of the cure process. Respondent’s Merchant Credential shall be RETURNED and 

the record will reflect an outright suspension for the period of deposit. 

PLEASE TAKE NOTICE that a settlement includes a waiver of all rights to seek 

judicial review, or otherwise challenge or contest the validity, of the decision under 33 C.F.R. § 

20.502 and accordingly that this Decision constitutes Final Agency Action in this matter. 

SO ORDERED.

__________________________________________________

George J. Jordan

US Coast Guard Administrative Law Judge

Date: 

August 24, 2016
Appendix A: Docket Filings

Docket 

Item ID

Document Description Document Type Document 

Date

Service Date Filing Date

1 Complaint_4705917_09-09-

2013_09Sep2013_102325.doc

Complaint 09/10/2013 09/10/2013 09/09/2013

2 Notice of Filing Enf Activity # 

4705917_09092013102517.doc

Notice of Filing 09/09/2013 09/09/2013

3 CertificateofServiceforComplaint

_4705917_09-10-2013.dot

Certificate of 

Service

09/10/2013 09/10/2013

4 ReturnofServiceforComplaint_47

05917_09-10-2013.dot

Return of Service 09/10/2013 09/10/2013

5 SettlementDrugs_4705917_09-10-

2013_10Sep2013_135904.doc

Settlement(Drugs) 09/10/2013 01/07/2016 09/10/2013

6 Notice_Of_Assignment_Uncontes

ted_12Sep2013_074121.doc

Notice of 

Assignment

09/12/2013 09/12/2013 09/12/2013

7 CertificateofServiceforNoticeofAs

signment_4710435_09-12-

2013.dot

Certificate of 

Service

09/12/2013 09/12/2013

8 Consent 

Order_17Sep2013_130335.doc

Consent Order 09/17/2013 09/17/2013 09/17/2013

9 CertificateofServiceforConsentOr

der_4710435_09-17-2013.dot

Certificate of 

Service

09/17/2013 09/17/2013

10 Noticeunsatsettlementcomp_4705

917_10-01-

2014_01Oct2014_095439.doc

Notice of 

Unsatisfactory 

Settlement 

Completion

10/01/2014 10/01/2014 10/01/2014

11 CertificateofServiceforNoticeofU

nsatisfactorySettlementCompletio

n_4705917_10-01-2014.dot

Certificate of 

Service

10/01/2014 10/01/2014

12 Respondents Request for a 

Hearing 2013-0337.pdf

10/06/2014 10/06/2014

13 Notice_Of_ReAssignment_Uncon

tested_09Oct2014_074052.doc

Notice of 

Assignment

10/09/2014 10/09/2014 10/09/2014

14 CertificateofServiceforNoticeofAs

signment_4710435_10-09-

2014.dot

Certificate of 

Service

10/09/2014 10/09/2014

15 Pre-hearing Conf Scheduling 

Order_14Oct2014_115023.doc

Pre-Hearing 

Conference 

Scheduling Order

10/14/2014 10/14/2014 10/14/2014

16 CertificateofServiceforPreHearingConferenceSchedulingOrd

er_4710435_10-14-2014.dot

Certificate of 

Service

10/14/2014 10/14/2014

17 GeneralMotion_4705917_11-03-

2014_03Nov2014_112625.doc

General Motion 11/03/2014 11/03/2014 11/03/2014
ii

18 CertificateofServiceforGeneralMo

tion_4705917_11-03-2014.dot

Certificate of 

Service

11/03/2014 11/03/2014

19 Order_06Nov2014_120954.doc General Order 11/06/2014 11/06/2014 11/06/2014

20 CertificateofServiceforGeneralOr

der_4710435_11-06-2014.dot

Certificate of 

Service

11/06/2014 11/06/2014

21 Noticeunsatsettlementcomp_4705

917_01-06-

2016_06Jan2016_130301.doc

Notice of 

Unsatisfactory 

Settlement 

Completion

01/06/2016 01/07/2016 01/06/2016

22 CertificateofServiceforSettlement(

Drugs)_4705917_01-07-2016.dot

Certificate of 

Service

01/07/2016 01/07/2016

23 CertificateofServiceforNoticeofU

nsatisfactorySettlementCompletio

n_4705917_01-07-2016.dot

Certificate of 

Service

01/07/2016 01/07/2016

24 Hearing request based on Notice 

of Failure.docx

Motion for 

Hearing

01/13/2016 01/13/2016

25 Notice_Of_ReAssignment_Uncon

tested_14Jan2016_075045.doc

Notice of 

Assignment

01/14/2016 01/14/2016 01/14/2016

26 CertificateofServiceforNoticeofAs

signment_4710435_01-14-

2016.dot

Certificate of 

Service

01/14/2016 01/14/2016

27 Kochis John Case Summary 2.pdf Filings Other 02/12/2016 02/12/2016

28 Pre-hearing Conf Scheduling 

Order_25Feb2016_104817.doc

Pre-Hearing 

Conference 

Scheduling Order

02/25/2016 02/25/2016 02/25/2016

29 CertificateofServiceforPreHearingConferenceSchedulingOrd

er_4710435_02-25-2016.dot

Certificate of 

Service

02/25/2016 02/25/2016

30 Order_04Mar2016_131514.doc General Order 03/04/2016 03/04/2016 03/04/2016

31 CertificateofServiceforGeneralOr

der_4710435_03-04-2016.dot

Certificate of 

Service

03/04/2016 03/04/2016

32 GeneralMotion_4705917_03-08-

2016_08Mar2016_134552.doc

General Motion 03/08/2016 03/08/2016 03/08/2016

33 CertificateofServiceforGeneralMo

tion_4705917_03-08-2016.dot

Certificate of 

Service

03/08/2016 03/08/2016

34 Attachments to General 

Motion.pdf

03/10/2016

35 Order_14Mar2016_142821.doc General Order 03/14/2016 03/14/2016 03/14/2016

36 CertificateofServiceforGeneralOr

der_4710435_03-14-2016.dot

Certificate of 

Service

03/14/2016 03/14/2016

37 Pre-hearing Conf Scheduling 

Order_12Apr2016_134057.doc

Pre-Hearing 

Conference 

Scheduling Order

04/12/2016 04/12/2016 04/12/2016
iii

38 CertificateofServiceforPreHearingConferenceSchedulingOrd

er_4710435_04-12-2016.dot

Certificate of 

Service

04/12/2016 04/12/2016

39 MotionforTelephonicTestimony_4

705917_04-19-

2016_19Apr2016_104057.doc

Motion for 

Telephonic 

Testimony

04/19/2016 04/19/2016 04/19/2016

40 CertificateofServiceforMotionfor

TelephonicTestimony_4705917_0

4-19-2016.dot

Certificate of 

Service

04/19/2016 04/19/2016

41 Hearing Scheduling 

Order_27Apr2016_110519.doc

Hearing 

Scheduling Order

04/27/2016 04/27/2016 04/27/2016

42 CertificateofServiceforHearingSc

hedulingOrder_4710435_04-27-

2016.dot

Certificate of 

Service

04/27/2016 04/27/2016

43 GeneralMotion_4705917_05-06-

2016_06May2016_130844.doc

General Motion 05/06/2016 05/06/2016 05/06/2016

44 CertificateofServiceforGeneralMo

tion_4705917_05-06-2016.dot

Certificate of 

Service

05/06/2016 05/06/2016

45 Pre-hearing Conf Scheduling 

Order_10May2016_132908.doc

Pre-Hearing 

Conference 

Scheduling Order

05/10/2016 05/10/2016 05/10/2016

46 CertificateofServiceforPreHearingConferenceSchedulingOrd

er_4710435_05-10-2016.dot

Certificate of 

Service

05/10/2016 05/10/2016

47 Notice of Appearance.pdf Notice of 

Appearance

05/10/2016 05/10/2016 05/10/2016

48 Respondents Notice of Expected 

Witnesses.pdf

Filings Other 05/23/2016 05/23/2016 05/23/2016

49 Respondents Notice of Expected 

Exhibits.pdf

Filings Other 05/23/2016 05/23/2016 05/23/2016

50 GeneralNotice_4705917_05-25-

2016_25May2016_083009.doc

General Notice 05/25/2016 05/25/2016

51 Order_10Jun2016_151722.doc General Order 06/10/2016 06/10/2016 06/10/2016

52 CertificateofServiceforGeneralOr

der_4710435_06-10-2016.dot

Certificate of 

Service

06/10/2016 06/10/2016

53 PostHearingBrief_4705917_07-

01-2016_01Jul2016_134716.doc

Post Hearing Brief 07/01/2016 07/01/2016 07/01/2016

54 CertificateofServiceforPostHearin

gBrief_4705917_07-01-2016.dot

Certificate of 

Service

07/01/2016 07/01/2016

55 Email from Respondent dated 

March 4 2016.pdf

Filings Other 03/04/2016 08/09/2016

56 Email from Respondent March 9 

2016.pdf

Filings Other 03/09/2016 08/09/2016

57 2016-04-18 Telephone conference 

USCG v Kochis 2015-0337.pdf

Filings Other 04/18/2016 08/09/2016
iv

58 Transcript and ALJ Exhibit 2013-

0337.pdf

08/17/2016

59 Kochis Letter03072016.pdf Filings Other 03/07/2016 08/19/2016

60 Kochis UAs03072016.pdf Filings Other 03/07/2016 08/19/2016

61

Kochis John letter from Rhonda 

revised.pdf Filings Other

03/10/2016

08/19/2016