UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

UNITED STATES OF AMERICA

UNITED STATES COAST GUARD

vs.

DECISION OF THE

VICE COMMANDANT

ON APPEAL

MERCHANT MARINER DOCUMENT

Issued to: HAROLD LANGLEY

NO. 2694

This appeal is taken in accordance with 46 U.S.C. § 7701 et seq., 46 C.F.R. Part

5, and the procedures set forth in 33 C.F.R. Part 20.

By a Decision and Order (hereinafter "D&O") delivered from the bench on

February 26, 2010, and memorialized via written D&O dated March 2,2010 (hereinafter

"D&O II"), Administrative Law Judge (hereinafter "ALJ") Michael J. Devine ofthe

United States Coast Guard at Norfolk, Virginia, revoked the Merchant Mariner

Document ofMr. Harold Langley (hereinafter "Respondent") upon finding proved one

charge ofmisconduct. The misconduct charge found proved alleged that, while serving

as a crew member aboard the USNS REGULUS, Respondent submitted a substituted

urine sample during a random drug test conducted on June 29, 2009.

FACTS & PROCEDURAL HISTORY

At all times relevant herein, Respondent was the holder of a Coast Guard-issued

Merchant Mariner Document. [D&O II at 3] On June 29, 2009, Respondent was

employed by Maersk Line as a crew member aboard the USNS REGULUS and was

working under the authority of his Coast Guard-issued Merchant Mariner Document.
LANGLEY NO.'

[Id.; Transcript ofthe Proceedings (hereinafter "Tr.") Volume (hereinafter "Vol.") II at

314]

On June 29, 2009, in accordance with company policy, a random urinalysis was

conducted on all Maersk Line employees who were working aboard the USNS

REGULUS. [0&0 II at 4] Respondent participated in the random drug testing

mandated by Maersk Line by providing a urine sample for testing. After Respondent's

urine sample was collected, it was forwarded to Quest Diagnostics for analysis. [Id.]

Testing revealed that Respondent's urine sample had no detectable creatinine and a

specific gravity of 1.0000, which is consistent with that of water. [0&0 II at 5; Tr. Vol.

II at 315] A normal human urine specimen has a creatinine level between 27 and 260

milligrams per deciliter and a specific gravity between 1.0020 and 1.0028. [0&0 II at 5]

Dr. Anu Konakanchi, the Medical Review Officer (hereinafter "MRO") in

Respondent's case, reviewed the documentation relating to Respondent's urine sample.

[0&0 II at 5] On July 15,2009, the MRO contacted Respondent to discuss his test

results. [Id.] After discussing the test with Respondent, the MRO found that there was

no valid medical reason to explain Respondent's urinalysis test results and ultimately

concluded that Respondent's sample was inconsistent with human urine and was a

substituted sample. [Id.]

The Coast Guard filed a Complaint, alleging misconduct for refusal to test by

submitting a substituted urine sample, against Respondent's Merchant Mariner Document

on September 9,2009. [0&0 II at 1-2] On September 21,2009, Respondent filed his

Answer to the Complaint. [Id. at 2] The hearing in the matter convened on February 25,

2010, at Norfolk, Virginia, and continued through the following day. [Id.] During the

hearing, the Coast Guard submitted the testimony offour witnesses and entered three

exhibits into the record. [Tr. Vol. I at 3-4] Respondent submitted the testimony ofthree

witnesses and entered six exhibits into the record. [Id.]

2
LANGLEY • NO.

Respondent filed a timely Notice of Appeal in the matter on March 2, 2010, and

perfected his appeal by filing an Appellate Brief on March 31, 2010. The Coast Guard

filed its Reply Brief on May 3, 2010. Accordingly, this appeal is properly before me.

APPEARANCE: At the hearing, Respondent was represented by Mr. Philip N.

Davey, Esq. and Mr. Philip A. Chisholm, as a non-attorney representative. On appeal,

Respondent was represented by Mr. Philip N. Davey, Esq., ofDavey & Brogan, P.C., 101

Granby Street, Suite 300, Norfolk, VA 23510-1636. The Coast Guard was represented

by Mr. James Stanton and LTJG Dianna Bailey of U.S. Coast Guard Sector Hampton

Roads, Norfolk, Virginia.

BASIS OF APPEAL

On appeal, Respondent raises the following issue:

Whether the ALl erred as a matter oflaw, precedent, andpublic policy in

concluding that submitting a substitute urine sample, in and ofitself,

constitutes "aggravation" such as to permit imposition ofa sanction

outside the Table ofAppropriate Orders, 46 C.PR. Part 5, Table 5-569.

OPINION

The sole issue presented in Respondent's case is whether the ALJ erred in

concluding that submitting a substitute urine sample, in and ofitself, constitutes

aggravation such as to permit imposition of a sanction outside the table of Appropriate

Orders.

In Coast Guard suspension and revocation cases, "[t]he sanction imposed in a

particular case is exclusively within the authority and the discretion ofthe ALJ," who is

not bound by the scale of average orders. Appeal Decision 2628 (VILAS) (citing Appeal

Decisions 2362 (ARNOLD) and 2173 (PIERCE)). "In the absence of a gross departure

from the Table ofRecommended Awards, the order ofthe ALJ will not be disturbed on

review." Appeal Decision 2628 (VILAS) (citing Appeal Decision 1937 (BISHOP)).

3
LANGLEY NO· 2694

Table 5.569, Suggested Ranges of an Appropriate Order (hereinafter "table"), in

46 C.F.R. § 5.569, sets forth a range ofsanction for a violation oflaw or regulation

relating to refusal to take a chemical drug test of 12-24 months suspension. l 46 C.F.R.

§ 5.569(d) addresses the intent ofthe table as follows:

Table 5.569 is for the information and guidance ofAdministrative Law

Judges and is intended to promote uniformity in orders rendered. This

table should not affect the fair and impartial adjudication of each case on

its individual facts and merits.... Mitigating or aggravating factors

may make an order greater or less than the given range appropriate.

In this case, the ALJ ordered a sanction ofrevocation, well beyond the 12-24-

month range recommended by the table. Citing the decision ofthe National

Transportation Safety Board (hereinafter "NTSB") in Commandant v. Moore, NTSB

Order No. EM-201 (2005), Respondent contends that the ALl did not articulate specific

facts to justify a sanction ofrevocation. In the MOORE case, the Commandant upheld

the sanction ofrevocation where a mariner refused to submit to a random drug test. Mr.

Moore's appeal to the NTSB was granted, in part, because the sanction ofrevocation

imposed in that case exceeded that shown in the table. While the NTSB acknowledged

the ALl's right to go outside the table, it noted that in Respondent Moore's case, neither

the law judge nor the Vice Commandant articulated any aggravating factors to justify

going beyond the sanction range listed in the table. As a consequence, the NTSB stated

that "unless and until the Coast Guard changes its regulation, we will not uphold an

upward departure from the policy currently embodied in the Coast Guard's regulation

without a clearly articulated explanation of aggravating factors." Commandant v. Moore,

NTSB Order No. EM-201 (2005).

I The table does not contain a recommendation for cases involving allegations ofmisconduct based on a

refusal to submit to drug testing. However, the table does address refusal to take a chemical drug test in

cases where violations oflaw or regulation are alleged. Because the table did not provide guidance in

misconduct cases like this one, the AU relied on the guidance provided in violation of law or regulation

cases.

4
LANGLEY ,NO. 269"

A review ofthe record shows that the ALl clearly articulated aggravating factors

while assessing a sanction beyond that recommended in the table. The ALl stated as

follows:

The Coast Guard recommends a sanction ofrevocation arguing

that the substituted sample is a deceptive act and should be met with the

most severe penalty allowed.

In opposition Respondent presented argument that he is a well

respected and reliable coworker with no history of prior offenses or

incidents. Applicable authority indicates that evidence in aggravation

should be presented to support going beyond the suggested range of

sanctions in the table.

After considering all ofthe evidence in the record including the

fact that a mariner provided a substitute sample in connection with a

company ordered random drug test, I find that the aggravating evidence in

this case is substantial and outweighs the mitigating evidence by

significant degree. Substitution of a specimen is an intentional act and

constitutes a refusal to test. Such interference with the integrity ofthe

testing process creates a risk of an impaired mariner continuing to serve in

a safety sensitive position. The drug-testing regulations are designed to

minimize use ofintoxicants by merchant mariners and to promote a drug

free and safe work environment. This goal would be undermined if

merchant mariners could either substitute a specimen or refuse to

participate in a chemical test and receive a lesser sanction than ifthey

tested positive for a controlled substance. The purpose ofthe regulations

for suspension and revocation proceedings is remedial and intended to

maintain standards for competence and conduct essential to the promotion

ofsafety at sea. Based on the evidence ofrecord as a whole, I find that the

Coast Guard has provided sufficient evidence of aggravating factors to

support exceeding the suggested range contained in the table. Therefore, I

find that revocation is the appropriate sanction in this case.

[D&O II at 8-9] (internal citations omitted)

In this case, the ALl found, based on the evidence contained in the record, that in

providing a substituted urine sample, Respondent committed a deceptive act meant to

subvert the intent ofthe Coast Guard's drug testing regulations. In so finding, contrary to

Respondent's assertion, the ALl clearly articulated aggravating factors to support going

5
LANGLEY ~o. If. 6 94.

beyond the suggested sanction in the table. While the record shows that the ALl

considered the mitigating evidence that Respondent submitted, he found "the aggravating

evidence in this case substantial" and that it "outweighs the mitigating evidence by a

significant degree." [D&O II at 8] After a careful consideration ofthe record, I find that

the ALl's decision to assess a sanction beyond that stated in the table was not an abuse of

discretion. Given the aggravating evidence contained in the record and addressed by the

ALl, the sanction ofrevocation is not obviously excessive. Accordingly, Respondent's

appeal is rejected.

CONCLUSION

The ALl's decision to revoke Respondent's Merchant Mariner Document was not

an abuse of discretion. Given the aggravating evidence in the record, the sanction of

revocation was not obviously excessive. Because competent, substantial, reliable, and

probative evidence exists to support the ALl's decision as to the appropriate sanction in

this case, Respondent's appeal is denied.

ORDER

The order ofthe ALl, dated March 2, 2010, at Norfolk, Virginia, is hereby

AFFIRMED.

AA\ II. j~"'~-'\r\~ -vA~M LLSCc,- ~~I I )

0e COh..IU~ »

Signed at Washington, D.C. this;)5 day of 2011.

6