UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

v. 

JOHN ALLEN GOBERT 

Respondent 

_______________________ 

Docket No: 2010-0309 

CG Enforcement Activity No: 3773491 

DECISION & ORDER

Date Issued: January 26, 2011 

Issued by: Hon. Bruce Tucker Smith 

 Administrative Law Judge 

Appearances:

For Complainant 

LT Pedro Mendoza, IO 

USCG Marine Safety Unit Morgan City 

LT Jason Boyer, IO 

USCG Marine Safety Unit Houma 

For Respondent 

Nicole Dufrene Streva, Esq. 

Ramsey, Skiles & Streva
2

I. PRELIMINARY STATEMENT 

The United States Coast Guard Marine Safety Unit Morgan City (Coast 

Guard) initiated the instant administrative action seeking revocation of 

Respondent John Allen Gobert’s (Respondent) Coast Guard-issued Merchant 

Mariner’s Credential (MMC). The instant action is brought pursuant to the legal 

authority codified at 46 U.S.C. §7703(1)(B) and the underlying regulations set 

forth in 46 C.F.R. Part 5. 

On July 7, 2010, the Coast Guard filed an original Complaint alleging that 

on June 4, 2010, Respondent refused to submit to a random drug test while 

serving as Captain aboard the DELTA LADY. The Coast Guard further alleged 

that Respondent’s purported refusal to submit to a random drug test was in 

wrongful contravention of his employer’s policy. The Coast Guard alleged that 

such action or inaction by Respondent, while acting under the authority of his 

MMC, as required by his employer as a condition of employment, constituted 

Misconduct in violation of 46 U.S.C. §7703(1)(B) and 46 C.F.R. §5.27. 

On July 23, 2010, Respondent was served with the original Complaint via 

U.S. Postal Service (USPS) Certified Mail, Return Receipt Requested. 

On July 29, 2010, Respondent filed an Answer to the original Complaint. 

On July 30, 2010, the instant matter was assigned by the Chief 

Administrative Law Judge (CALJ) to the undersigned Administrative Law Judge 

(ALJ) for adjudication. 

 On August 9, 2010, the court convened a telephonic pre-hearing 

conference with the parties to discuss scheduling and discovery. 
3

On August 13, 2010, the Coast Guard filed a significantly-amended 

Complaint, newly alleging that on June 4, 2010, Respondent refused to submit to 

a reasonable suspicion drug test while serving as Captain aboard the DELTA 

LADY. The Coast Guard further alleged that Respondent’s purported refusal to 

submit to a reasonable suspicion drug test was in wrongful contravention of his 

employer’s policy. (At the hearing, the Coast Guard oddly explained that the 

change from an allegation of a “random” drug test in the original Complaint, to an 

allegation of a “reasonable suspicion” drug test in the Amended Complaint was 

only a matter of “semantics.” (Tr. 29).) 

 The Coast Guard alleged such action or inaction by Respondent, while 

acting under the authority of his Merchant Mariner’s Credential as required by 

law or regulation, constituted Misconduct in violation of 46 U.S.C. §7703(1)(B) 

and 46 C.F.R. §5.27. 

On September 7, 2010, Respondent was served with the Amended 

Complaint via Certified Mail, Return Receipt Requested. 

On September 8, 2010, Respondent, with the assistance of counsel, filed 

an Answer to the Amended Complaint admitting all jurisdictional allegations, 

denying the factual allegations set forth in paragraphs 5, 6 and 7 of the Amended 

Complaint and admitting all others. 

On October 26, 2010, this matter came on for hearing at the U.S. Coast 

Guard Administrative Law Judge Courtroom, located in the Hale Boggs Federal 

Building, in New Orleans, Louisiana. The proceeding was conducted in 

accordance with the Administrative Procedure Act (APA), as amended and 
4

codified at 5 U.S.C. §§551-59, and the Coast Guard procedural regulations set 

forth at 33 C.F.R. Part 20. Coast Guard Investigating Officers (IOs) LT Pedro L. 

Mendoza and LT Jason A. Boyer appeared on behalf of the Coast Guard; 

Respondent appeared through counsel, Nicole Dufrene Streva, Esq. and was 

present in court. 

Both parties appeared, presented their respective cases, and rested. Two 

witnesses testified as part of the Coast Guard’s case-in-chief and the Coast Guard 

offered two exhibits into evidence, both of which were admitted. Respondent 

testified on his own behalf and offered the testimony of two additional witnesses. 

Respondent offered two exhibits into evidence, both of which were admitted.1

After the hearing, the court afforded the parties an opportunity to submit 

briefs in support of their respective legal positions. Neither party took advantage 

of that opportunity. 

The administrative record was closed on Monday, January 24, 2011. 

II. FINDINGS OF FACT 

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

the documentary evidence, testimony of witnesses and the entire record taken as a 

whole, including party stipulations. 

1. At all relevant times mentioned herein Respondent John Allen 

Gobert was the holder of a Coast Guard-issued Merchant 

Mariner’s Credential (MMC). 

 

1

 Citations referencing the transcript are as follows: Transcript followed by the volume number 

and page number (Tr. at __). Citations referring to Coast Guard Exhibits are as follows: Coast 

Guard followed by the exhibit number (i.e., CG Ex. 1, etc.); Respondent’s Exhibits are as follows: 

Respondent followed by the exhibit letter (Resp. Ex. A, etc.); ALJ Exhibits are as follows: ALJ 

followed by the exhibit Roman numeral (ALJ Ex. I, etc.). 
5

2. On or about March 11, 2010, B.N. Barrios & Sons, LLC, hired 

Respondent John Allen Gobert. 

3. B.N. Barrios & Sons, LLC, is a marine employer. 

4. On or about March 11, 2010, Respondent John Allen Gobert 

signed and dated a document entitled “Policies and Practices 

Statement” as an acknowledgment of B.N. Barrios & Sons, 

LLC policies and practices. (Tr. at 53; CG Ex. 1). 

5. Respondent John Allen Gobert acted under the authority of his license 

for jurisdictional purposes when he stepped aboard his employer’s 

vessel for the purpose of assuming his duties as captain of the DELTA 

LADY on June 4, 2010. (Tr. at 53). 

6. On the morning of June 4, 2010, Respondent John Allen Gobert was 

not involved in any maritime incident, casualty, accident or collision. 

(Tr. at 31 - 50). 

7. On the morning of June 4, 2010, at approximately, six-thirty a.m., 

Benjamin Conner observed Respondent John Allen Gobert to appear 

“very groggy and sleepy like, you know... he had his glasses off...and 

just looked sleepy, tired.” (Tr. at 33 – 35). 

8. On the morning of June 4, 2010, Jennifer Maysonet, the former 

personnel manager with B.N. Barrios & Sons, personally 

observed and interacted with Respondent John Allen Gobert. 

Maysonet did not observe any impairment in Respondent John 

Allen Gobert’s speech, appearance, ambulation, mobility. Nor 

did Maysonet note any contemporaneous physical, behavioral, 

or performance indicators of probable drug or alcohol use by 

Respondent on the morning of June 4, 2010. (Tr. at 49-79). 

9. On the morning of June 4, 2010, Jennifer Maysonet told 

Respondent John Allen Gobert that he had to “take a drug 

screen” or words to that effect. (Tr. at 56 – 67). 

10. On or about June 4, 2010, Respondent John Allen Gobert left 

the employ of B.N. Barrios & Sons, LLC.. (Tr. at. 119-120). 

11. Respondent John Allen Gobert did not submit to a drug or 

alcohol screen. (Tr. at. 117-121) 
6

III. SUMMARY OF DECISION 

The Coast Guard did NOT PROVE by a preponderance of reliable, 

probative and credible evidence that Respondent John Allen Gobert wrongfully 

refused to submit to a reasonable suspicion drug test or that he wrongfully failed 

to follow his employer’s company policy by refusing to submit to a reasonable 

suspicion drug test. The Coast Guard did NOT PROVE Respondent committed 

Misconduct as contemplated by 46 U.S.C. §7703(1)(B) and 46 C.F.R. §5.27. 

IV. DISCUSSION 

A. General 

The purpose of Coast Guard suspension and revocation proceedings is to 

promote safety at sea. See 46 U.S.C. §7701. Pursuant to 46 C.F.R. §5.19, an ALJ 

holds the authority to suspend or revoke a license or certificate in a hearing for 

violations arising under 46 U.S.C. §7703. 

Determining the weight of the evidence and making credibility 

determinations as to the evidence is within the sole purview of the ALJ. See

Appeal Decision 2640 (PASSARO) (2003).2

 Additionally, the ALJ is vested with 

broad discretion in resolving inconsistencies in the evidence, and findings do not 

need to be consistent with all of the evidence in the record as long as there is 

sufficient evidence to reasonably justify the findings reached. Id.; Appeal 

Decision 2639 (HAUCK) (2003). 

 

2

 Pursuant to 46 C.F.R. §5.65, “[t]he decisions of the Commandant in cases of appeal . . . are 

officially noticed and the principals and policies enunciated therein are binding upon all 

Administrative Law Judges.” 
7

B. Jurisdiction 

“The jurisdiction of administrative bodies is dependent upon the validity 

and the terms of the statutes reposing power in them.” Appeal Decision 2620 

(COX) (2001) (quoting Appeal Decision 2025 (ARMSTRONG) (1975)). “Where 

an Administrative forum acts without jurisdiction its orders are void.” Appeal 

Decision 2025 (Armstrong) (1975). Therefore, establishing jurisdiction is critical 

to the validity of a proceeding. Appeal Decisions 2677 (WALKER) (2008); 2656 

(JORDAN) (2006). Jurisdiction is a question of fact that must be proven. Appeal 

Decisions 2620 (Cox) (2001); 2425 (BUTTNER) (1986); 2025 (ARMSTRONG)

(1975) (stating “jurisdiction must be affirmatively shown and will not be 

presumed”). 

A review of the jurisdictional allegations contained within the Amended 

Complaint shows that the Coast Guard alleged that Respondent acted under the 

authority of his MMC by serving as Captain aboard a vessel as required by law or 

regulation. The record established at the hearing of this matter is conflicting 

whether Respondent was serving as Captain or as mate on June 4, 2010. (Tr. at 

61, 64, 95, 117, 125, 127, 128). The court finds, from the totality of the evidence, 

that Respondent was acting under the authority of his license for jurisdictional 

purposes when he stepped aboard his employer’s vessel for the purpose of 

assuming his duties as captain of the DELTA LADY on June 4, 2010. (Tr. at 53). 

See 46 C.F.R. §5.57.3

 

3 This, despite the Despite the Coast Guard’s admission that it failed to affirmatively establish, 

during its case-in-chief, that Respondent was acting under the authority of his Credential. (Tr. at 

126) 
8

C. Burden of Proof 

In this case, like all Suspension and Revocation cases, the Coast Guard 

bears the burden of proof to establish the requisite facts mandated by the organic 

statute, 46 U.S.C. §7703, and the implementing regulations, 46 C.F.R. Part 5; Part 

10, Subpart B; 33 C.F.R. Part 20. The Administrative Procedure Act, 5 U.S.C. 

§§551-559, applies to Coast Guard Suspension and Revocation hearings before 

United States ALJs. The APA authorizes imposition of sanctions if, upon 

consideration of the entire record as a whole, the charges are supported by 

reliable, probative and substantial evidence. See 5 U.S.C. §556(d). The Coast 

Guard bears the burden of proof to establish the charges are supported by a 

preponderance of the evidence. 33 C.F.R. §§20.701, 20.702(a). Similarly, a 

respondent bears the burden of proof in asserting his affirmative defense by a 

preponderance of the evidence. 33 C.F.R. §§20.701, 20.702; Appeal Decisions 

2640 (PASSARO) (2003); 2637 (TURBEVILLE) (2003). “The term substantial 

evidence is synonymous with preponderance of the evidence as defined by the 

U.S. Supreme Court.” Appeal Decision 2477 (TOMBARI) (1988)(citing 

Steadman v. SEC, 450 U.S. 91, 107 (1981). The burden of proving a fact by a 

preponderance of the evidence “simply requires the trier of fact ‘to believe that 

the existence of a fact is more probable than its nonexistence before [he] may find 

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

existence.’” Concrete Pipe & Products of Cal., Inc. v. Constr. Laborers Pension 

Trust for S. Cal., 508 U.S. 602, 622 (1993) (quoting In re Winship, 397 U.S. 358, 

371-72 (1970) (Harlan, J., concurring) (brackets in original)). 
9

 Therefore, at hearing, the Coast Guard was obligated to prove by credible, 

reliable, probative and substantial evidence that Respondent more-likely-than-not 

committed the acts alleged in the Amended Complaint. 

D. Sufficiency of the Amended Complaint; Adequacy of Notice 

 The Amended Complaint alleges Respondent failed to submit to a 

“reasonable suspicion drug test” and that he failed to “follow company policy by 

refusing a reasonable suspicion drug test.” The Amended Complaint does not 

allege how or why either act constitutes Misconduct. Simply for the reason of 

ensuring that a complete administrative record of these proceedings is made, the 

court notes that such a pleading might be criticized on Constitutional grounds.4 

 More importantly, at hearing, the Coast Guard’s representatives expanded 

the allegations in the Amended Complaint by orally contending anew that 

 

4 Respondent raised no objection to either the Amended Complaint nor to the Coast Guard’s 

expansion of the allegations at the hearing. Procedural regulation 33 C.F.R. §20.307 requires a 

Complaint to allege both the statute or rule violated and the “pertinent” facts. However, the Coast 

Guard did not plead why or how such failure constituted Misconduct, as that term is defined in 46 

C.F.R. §5.27. The Amended Complaint alleges that on June 04, 2010, Respondent refused to 

submit to a reasonable suspicion drug test, but does not identify how or why he was legally-bound 

to do so. The Amended Complaint further alleges that on June 04, 2010, the Respondent 

wrongfully failed to follow company policy by refusing a reasonable suspicion drug test, but does 

not plead why such a failure is “wrongful” or whether a company policy even exists or whether 

such a policy is among those sources of “rules” identified in 46 C.F.R. §5.27. Even more 

troubling is Factual Allegation 2, which alleges that the Barrois employment manual requires 

employees to “undergo pre-employment and an initial drug screen” – yet the manual is silent in 

regard to “reasonable suspicion” drug tests. Although “[d]etailed factual allegations” are not 

required in a complaint per Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the 

Supreme Court in Twombly requires the pleading party to allege factual matter sufficient to “state 

a claim to relief that is plausible on its face.” Id. at 570. The Court in Twombly instructs that a 

claim has facial plausibility when the pleaded factual content allows the court to draw a reasonable 

inference that the defendant is liable for the misconduct alleged. Id. at 556. However, the Court 

specifically cautioned that a complaint must contain “more than labels and conclusions" or a 

“formulaic recitation of the elements of a cause of action. Id. at 555. At least one federal district 

court has applied the teachings of Twombly to administrative proceedings. See Federal Trade 

Commission v. Innovative Marketing, 654 F. Supp.2d 378 (2009). In the instant case, it is 

questionable whether the Amended Complaint comports with the requirement of “facial 

plausibility” because it pleads little more than labels and conclusions. Because Respondent did not 

raise this issue at the hearing, resolution of this case is not reliant upon the foregoing discussion. 
10

Respondent failed to submit to both or either a drug and an alcohol screen.” (Tr. 

at 26-27, 37). Respondent, however, did not object on the record to the Coast 

Guard’s expansion of the allegations. 

 These are not insignificant matters; the Coast Guard’s attempt at the 

hearing to orally amend the Complaint a second time raises fundamental 

questions of notice and procedural due process. Despite Respondent’s apparent 

waiver of these issues, all issues were fully litigated on the record. Respondent 

and his counsel were apparently aware of the Government’s case and were 

prepared to defend against it. Hence, no prejudice was manifest. Appeal 

Decisions 2578 (CALLAHAN) (1996); 2545 (JARDIN) (1992). 

E. Misconduct

In the instant matter, the Amended Complaint seeks revocation of 

Respondent’s MMC under the auspices of 46 U.S.C. §7703(1)(B) and 46 C.F.R. 

§5.27, Misconduct. Pursuant to 46 U.S.C. §7703(1)(B), a mariner’s license may 

be suspended or revoked if the holder, when acting under the authority of that 

license, has committed an act of misconduct. (emphasis added). “Misconduct” is 

defined by 46 C.F.R. §5.27, and provides that: 

Misconduct is human behavior which violates some formal, 

duly established rule. Such rules are found in, among other 

places, statutes, regulations, the common law, the general 

maritime law, a ship’s regulation or order, or shipping 

articles and similar sources. It is an act which is forbidden 

or a failure to do that which is required. 

Id. 

Although the Amended Complaint is silent on the matter, the Coast Guard 

contended, at the hearing, that both 46 C.F.R. Part 16 (with, ostensibly, 33 C.F.R. 

Part 95) and Respondent’s employer’s company policy manual (CG Ex. 1) are 
11

sufficient sources of the “rules” referenced in 46 C.F.R. §5.27, which defines 

Misconduct. (Tr. at 12-13, 15). In this regard, the Coast Guard’s position is 

problematic. 

1. 46 C.F.R. Part 16 & 33 C.F.R. Part 95

The Coast Guard maintained that 46 C.F.R. Part 16 and 33 C.F.R. Part 95 

put a mariner on appropriate legal notice that he is subject to reasonable suspicion 

chemical testing. (Tr. at 15, 87-88).5 However, in Appeal Decision 2578 

CALLAHAN (1996), the Commandant clearly held that a respondent cannot 

violate the provisions of either 33 C.F.R. Part 95 or 46 C.F.R. Part 16, because 

those regulations apply only to maritime employers and not to marine employees. 

Id. (Appeal Decision 2551 (LEVENE) (1993) (finding the plain language of 33 

C.F.R. §95.040 to indicate “its provisions cannot be violated as it is evidentiary in 

nature and not proscriptive. One cannot violate a regulation which merely 

prescribes a rule of evidence.”). Accordingly, a mariner, like Respondent herein, 

cannot be held accountable for a marine employer’s compliance or noncompliance with the provisions of either 33 C.F.R. Part 95 or 46 C.F.R. Part 16. 

Therefore, it was inappropriate for the Coast Guard to rely upon either regulation, 

here, as the basis for a charge of Misconduct under 46 C.F.R. §5.27. 

The court finds noteworthy the absence of a plainly-written regulation 

directing a mariner to submit to “reasonable suspicion” drug testing when such 

suspicion or cause is present. Certainly, the Coast Guard could write such a 

regulation, as it did in 46 C.F.R. §4.06-5, which clearly establishes the 

 

5 As discussed supra, the Coast Guard asserted at the hearing that Respondent was subject to 

either drug or alcohol testing – although the Amended Complaint only alleged drug testing. 
12

“responsibility of individuals involved in serious marine incidents” to submit to 

chemical testing. Such a regulation would easily fit within the ambit of 46 C.F.R. 

§5.27. 

2. Employer’s Policy Manual 

The Coast Guard next argued that a company policy or manual is 

comparable to that of a “ship’s regulation” (Tr. at 15-16) and that a violation of a 

marine employer’s company policy exposes the violator to charges of Misconduct 

under 46 C.F.R. §5.27.6 Whether that position is correct as a matter of law 

remains an open question to be resolved by a higher appellate authority. 

In this case, had the matter been properly pled, portions of this

Respondent’s employer’s policy manual might have constituted a basis for a 

charge of Misconduct against this Respondent. 

Coast Guard Exhibit 1 is Respondent’s marine employer’s “Policies and 

Practices Statement.” The evidence is undisputed that on March 11, 2010, 

Respondent acknowledged he had received, read and understood that policy 

manual. (Tr. at 53; CG Ex. 1). 

 

6 A review of the Commandant’s Decisions on Appeal reveals that it has been assumed that a 

violation of company policy can constitute actionable Misconduct. In Appeal Decision 2625

(ROBERTSON) (2002), for example, the Commandant affirmed the ALJ’s finding that the marine 

employer’s reasonable suspicion drug testing standards, as set forth in its handbook disseminated 

to employees, were consistent with the reasonable suspicion standards set forth at 46 C.F.R. 

§16.250. As such, marine employees were on sufficient notice that failure to abide by the terms of 

the policies set forth in the handbook could give rise to charges of Misconduct. However, the 

question whether an employer’s manual is among those sources of “rules” contemplated by 46 

C.F.R. §5.27 has not been, apparently, squarely addressed. The court notes that in the case at bar 

the employer’s policy manual states, in part: “Our company reserves the right to request changes 

in attire that may be offensive to co-workers or patrons. Employees must also observe rules of 

good hygiene.” (CG Ex.1 at 10.) Query: Would the Coast Guard charge a mariner with 

Misconduct for violations of these policies? Should there not be a requirement for a nexus 

between the “rule” in 46 C.F.R. §5.27 and maritime safety?
13

As discussed supra, the Amended Complaint alleges only that Respondent 

failed to submit to reasonable suspicion drug testing. At the hearing, however, the 

Coast Guard argued that Respondent failed to submit to either or both a 

“reasonable suspicion” drug and an alcohol test. 

The employer’s manual addresses both drug and alcohol testing – but does 

so distinctly and separately.7

i. “Substance Abuse” 

With regard to drug testing, the marine employer’s “Substance Abuse” 

provisions state, in part: 

Coast Guard regulations require that all seamen must 

undergo pre-employment . . . initial drug test (and pass) 

when hired and that random drug testing be performed 

thereafter . . . 

(CG Ex. 1 at 8). 

Conspicuously absent from the marine employer’s policy manual is any 

reference to either “probable cause” or “reasonable cause” or “reasonable 

suspicion” drug testing. See CG Ex. 1. The Coast Guard presented no evidence 

at the hearing of any “company policy” requiring “reasonable suspicion” drug

testing as alleged in the Amended Complaint. Hence, the Coast Guard failed to 

prove that Respondent’s employer had a policy pertaining to “reasonable 

suspicion” drug testing. Thus, the Coast Guard failed to prove that this portion of 

the marine employer’s policy manual creates a “rule” sufficient for a charge of 

Misconduct under 46 C.F.R. §5.27. 

 

7 Respondent’s employer’s policy manual also contains a section entitled “Conduct at Work.” 

That section notes that an employee may be terminated for, among other reasons, “Use of 

intoxicating liquors or substances or other substances” [sic] and “Reporting to work under the 

influence of intoxicating liquors or other substances.” (CG Ex. 1 at 12-13). 
14

ii. “Alcohol Policy” 

 Disregarding for a moment that the Amended Complaint makes no 

reference to alcohol testing, the court notes that the marine employer’s policy 

manual does provide separate criteria for alcohol testing. The marine employer’s 

“Alcohol Policy” provides: 

The company reserves the right to perform ‘for-cause’ 

alcohol tests on employees suspected of being under the 

influence of alcohol based on, but not limited to, the 

following reasons: 

1) Unacceptable job performance and the odor of 

alcoholic beverage or other signs of intoxication. 

2) Unusual job behavior and the odor of alcoholic 

beverage or other signs of intoxication. 

3) Observable symptoms of intoxication and the odor of 

alcoholic beverages. 

4) Accident or near miss and the odor of alcoholic 

beverages or other signs of intoxication. 

(CG Ex. 1 at 15). 

That section further provides that “[f]ailure of an employee to consent to 

an alcohol screen test, when probable cause exists for testing, will be considered 

to have tested positive and will be subject to immediate termination from the 

company.” Id. (Emphasis added). 

The court notes the internally inconsistent references to “for cause” testing 

and “probable cause” testing in the same section of the employer’s policy. 

Therefore, for the purposes of this litigation only, the court reads the phrases “for 

cause” and “probable cause” as synonymous. (However, in American 

jurisprudence, the “probable cause” standard differs significantly from the 
15

“reasonable cause” -- or from a “reasonable suspicion” -- standard as that term is 

employed in both 46 C.F.R. Part 16 and 33 C.F.R. Part 95.8 

Assuming, arguendo, that this section of the employer’s policy could serve 

as the basis for a charge of Misconduct, and further assuming that the case had 

been thusly pled, the requisite quantum of proof was wholly absent from the 

evidence adduced at the hearing. 

In this case, the Coast Guard failed to present any evidence that would 

support a finding that Respondent had exhibited unacceptable or unusual job 

performance and the odor of alcoholic beverage or other signs of intoxication. 

The Coast Guard failed to present any evidence that Respondent demonstrated 

any observable symptoms of intoxication and the odor of alcoholic beverages. 

Likewise, the Coast Guard failed to present any evidence of an accident or near 

miss and the odor of alcoholic beverages or other signs of intoxication. 

In short, assuming, arguendo, that the portion of the employer’s policy 

pertaining to alcohol does constitute a “rule” for the purposes of 46 C.F.R. §5.27, 

and assuming arguendo the matter had been properly pled in the Amended 

Complaint, the Coast Guard offered virtually no proof of the criteria set forth in 

the policy. 

 

8

 Hence the question: Which standard applies: “probable cause” or “reasonable cause?” A detailed 

resolution of that intellectual inquiry is unnecessary because the quantum of proof adduced at trial 

raises to neither level. Even though these terms are not “readily, or even usefully, reduced to a neat 

set of legal rules,” U.S. v. Sokolow, 490 U.S. 1, 7 (1989)(quoting Illinois v. Gates, 462 U.S. 213, 

232 (1983)), it might be fairly said that reasonable suspicion is what a reasonable person would, 

under the circumstances, SUSPECT to be true. By contrast, probable cause is what a reasonable 

person would, under the circumstances, BELIEVE to be true. Reasonable suspicion is a different, 

lower standard of proof. In either situation, the court would examine the objective facts and how a 

reasonably prudent person would react. See Terry v. Ohio, 392 U.S.1, 27 (1968). 

 
16

3. Reasonable Suspicion/Reasonable Cause 

Assuming, arguendo, that Respondent’s employer’s policy manual 

provided proper legal notice of “probable cause” or “reasonable cause” or 

“reasonable suspicion” chemical testing, the issue before this court then becomes 

whether Respondent’s marine employer had an objectively determinable factual 

basis to order Respondent to submit to chemical testing. 

In Suspension and Revocation administrative matters, “the determination 

as to whether reasonable suspicion or reasonable cause exists to support a request 

for the administration of chemical testing [of a marine employee] is a factual 

determination [to be] made by the ALJ based upon all the evidence available.” 

Appeal Decision 2672 MARSHALL (2007) (citing Appeal Decisions 2625 

ROBERTSON (2002); 2624 DOWNS (2001)). 

“Articulating precisely what ‘reasonable suspicion’ . . . mean[s] is not 

possible. [It is a] commonsense, nontechnical conception[] that deal[s] with ‘the 

factual and practical considerations of everyday life on which reasonable and 

prudent men, not legal technicians, act.’” Ornelas v. U.S., 517 U.S. 690, 696 

(1996) (quoting Illinois v. Gates, 462 U.S. 213, 231(1983) (internal citations 

omitted)). Reasonable suspicion is a “fluid concept . . . that takes [its] substantive 

content from the particular context . . . in which [it is] being assessed. Id. (citing 

Gates, supra at 232.) 

The court notes that the Amended Complaint only alleged Respondent’s 

failure to submit to a “reasonable suspicion” drug test. However, because the 

Coast Guard’s Investigating Officers contended at trial that Respondent had failed 
17

to submit to both a drug and/or alcohol screen, it is worthwhile to examine the 

“probable cause,” or “reasonable cause” or “reasonable suspicion” standards 

applicable to both drug and alcohol cases. (Tr. at 26, 27, 37). 

Even if the standards of 46 C.F.R. Part 16 and 33 C.F.R. Part 95 apply, as 

the Coast Guard incorrectly asserts, the necessary quantum of proof applicable to 

either is still absent. 

i. 46 C.F.R. Part 16 - Drugs

Forty-six C.F.R. §16.250, requires a maritime employer to chemically test 

a mariner if there is reasonable cause to believe the mariner is under the influence 

of dangerous drugs. Id. at (a). The regulation provides guidance regarding the 

establishment of “reasonable cause,” stating that the: 

The decision to test must be based upon a reasonable and 

articulable belief that the individual has used a dangerous drug 

based on direct observation of specific, contemporaneous physical, 

behavioral, or performance indicators of probable use. 

Id. at (b). 

Recall that the Amended Complaint alleges Respondent failed to submit to 

a “reasonable suspicion” drug test. (Query: The source of the phrase “reasonable 

suspicion” cited in the Amended Complaint? Neither 46 C.F.R. 16.250(a) nor the 

“Policy and Practices Statement” of Respondent’s employer uses the term. The 

terms are distinct and have entirely different meanings.) 

The only evidence in support of the alleged “reasonable suspicion” was 

the testimony of a single witness, Benjamin Conner, a former employee of the 

marine employer. Conner’s testimony was limited to one observation that 

Respondent “looked very groggy and sleepy like, you know... he had his glasses 
18

off and he was standing next to Wayne and just looked sleepy, tired, like this” at 

six-thirty on the morning of June 4, 2010. (Tr. at 33-35). Conspicuously, the 

Coast Guard did not offer the observations of “Wayne” or any other person. The 

court takes particular note of Conner’s in-court demeanor as he testified. There 

was nothing in his voice, inflection, posture, etc. that supported a belief that he 

had observed Respondent in an intoxicated or drug-impaired state. 

Moreover, at the hearing, the Coast Guard elicited testimony from Jennifer 

Maysonet, the former personnel manager with Respondent’s marine employer. 

Although Maysonet personally observed and interacted with Respondent on the 

morning of June 4, 2010—the Coast Guard did not ask her one question regarding 

Respondent’s speech, appearance, physical or mental articulation, ambulation, or 

mobility. Nor did the Coast Guard elicit any testimony from Maysonet 

concerning Respondent’s contemporaneous physical, behavioral, or performance 

indicators of probable drug or alcohol use on the morning of June 4, 2010. (Tr. at 

49-79). 

In sum, the Coast Guard failed to offer any testimony or evidence from 

any person, “based upon direct observation of specific, contemporaneous 

physical, behavioral, or performance indicators of [Respondent’s alleged] 

probable drug use.” 46 C.F.R. §16.250. 

ii. 33 C.F.R. Part 95 - Alcohol

The criteria for directing “reasonable cause” alcohol testing are contained 

in 33 C.F.R. Part 95. Pursuant to 33 C.F.R. §95.035, reasonable cause exists 
19

when the individual was directly involved in the occurrence of a maritime 

casualty or the individual is suspected of being in violation of 33 C.F.R. §95.020. 

 Thirty-three C.F.R. §95.020 specifically provides that for testing to occur, 

the individual must be operating a vessel (other than a recreational vessel) and

has an alcohol concentration of .04 percent by weight in their blood or the effect 

of the intoxicant consumed by the individual on the person’s manner, 

disposition, speech, muscular movement, general appearance or behavior is 

apparent by observation.9

Here, the Coast Guard need not prove that the Respondent was actually, 

physically operating a vessel.10 However, it was incumbent upon the Coast Guard 

to prove that Respondent’s manner, disposition, speech, muscular movement, 

general appearance or behavior were impaired. In that regard, the Coast Guard 

failed to meet its burden. Beyond the testimony that he appeared sleepy (at sixthirty in the morning) there was no evidence or testimony that Respondent was 

impaired in any manner whatsoever. 

In the case at bar, the Coast Guard relied upon the observations of a single 

witness who was wholly unable to provide any articulable basis for directing 

Respondent to submit to a reasonable cause chemical test. Conner, who was 

formerly employed by the marine employer, had known Respondent for only “a 

couple of weeks” prior to June 4, 2010. (Tr. at 34). Conner’s personal 

 

9 Although the observations of two witnesses are preferable under both 33 C.F.R. §90.020(c) and 

46 C.F.R. §16.250(b), observation by one witness has been held to be sufficient to justify a 

marine employer’s decision to test in Appeal Decisions 2625 ROBERTSON (2002) and 2624 

(DOWNS) (2001).

10 By his presence aboard the DELTA LADY alone, Respondent is deemed to have been 

operating same. He need not have been in actual control or even on duty to satisfy 33 C.F.R. 

§95.015. Appeal Decision 2624 (DOWNS) (2001). 
20

observations of Respondent on the early morning of June 4, 2010, formed the sole 

basis for the marine employer to direct Respondent to submit to chemical testing. 

Conner testified that he observed Respondent as “look[ing] very groggy and 

sleepy like.” (Tr. at 33). Upon cross-examination, Conner admitted that his 

observations of Respondent occurred at approximately 6:30 a.m. (Tr. at 40). 

Conner agreed that Respondent’s behavior was comparable to someone “acting 

like he was sleepy” as opposed to someone behaving erratically. (Tr. at 42). 

Importantly, Conner testified he did not smell alcohol on Respondent’s breath. 

(Tr. at 41). 

Conner’s testimony was of little value to the Coast Guard’s case as he was 

unable to articulate any specific observations or concerns about Respondent’s 

manner, disposition, speech, muscular movement, general appearance or behavior 

other than “he was acting like he was sleepy” at six-thirty in the morning. (Tr. at 

42). Such a generalized accounting does not rise to the level of reasonable 

suspicion. 

And, as indicated supra, the Coast Guard’s other witness, Maysonet, 

offered no testimony in to support any conclusion that Respondent was impaired. 

The Coast Guard did not provide any testimony or evidence regarding 

Respondent’s manner, disposition, speech, muscular movement, general 

appearance or behavior that would suggest alcohol or drug use or abuse. The very 

best that can be said of the Coast Guard’s evidence is that it suggested that 

Respondent was sleepy at six-thirty on the morning of June 4, 2010. 
21

Reviewing all available evidence, the court finds that there existed no 

probable cause, reasonable cause, or reasonable suspicion to support the maritime 

employer’s order for chemical testing. 

F. Refusal 

The alleged “reasonable suspicion” drug test was unreasonable because 

Respondent’s employer had neither probable cause, nor reasonable cause nor 

reasonable suspicion of either drug or alcohol use.11 Because the employer had no 

basis to order Respondent to submit to chemical testing, Respondent did not 

“refuse” to take a chemical test for either drugs or alcohol and therefore did not 

commit an act of Misconduct. See Appeal Decision 2672 MARSHALL (2007). 

V. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

The following Findings of Fact and Conclusions of Law are based upon 

the court’s careful observation of the testimony and demeanor of the witnesses, a 

thorough review of all of the admitted items of documentary evidence, an analysis 

of the logic and consistency of the testimony and the evidence, the probative 

weight and value of each and the law applicable to this case. To be clear: despite 

the presence of some interesting collateral legal issues discussed herein, it is the 

absence of proof in this case—particularly in regard to the alleged “reasonable 

suspicion” test-- that caused the Coast Guard’s case to fail. 

 

11 The 4th Amendment mandates that a search or seizure is ordinarily unreasonable in the absence 

of individualized, objectively determined, suspicion of wrongdoing. City of Indianapolis v. 

Edmond, 531 U.S. 32, 37 (2000) (citing Chandler v. Miller, 520 U.S. 305, 308 (1997)); United 

States v. McCarthy, 38 M.J. 398, 402 (C.M.A. 1993) (citing United States v. Thatcher, 28 M.J. 20, 

22 (C.M.A. 1989) and United States v. Middleton, 10 M.J. 123, 127 (C.M.A. 1981)). 
22

1. At all relevant times herein, and specifically on June 4, 2010, 

Respondent John Allen Gobert was the holder of a Coast Guard-issued 

Merchant Mariner’s Credential. 

2. At all relevant times herein, and specifically on June 4, 2010, 

Respondent John Allen Gobert was acting under the authority of his 

Coast Guard-issued Merchant Mariner’s Credential. 

3. Respondent John Allen Gobert and the subject matter of this hearing 

are properly within the jurisdiction vested in the Coast Guard under 46 

U.S.C. §7704(c); 46 C.F.R. Part 5; 33 C.F.R. Part 20; and the 

Administrative Procedures Act, as codified at 5 U.S.C. §§551-59. 

4. Respondent John Allen Gobert was employed by B.N. Barrios & Sons, 

LLC from March 11, 2010, until June 4, 2010. 

5. On the morning of June 4, 2010, Respondent John Allen Gobert was 

not involved in any maritime incident, casualty, accident or collision. 

6. B.N. Barrios & Sons, LLC is a marine employer and therefore subject 

to abide by applicable drug and alcohol testing regulations contained at 

33 C.F.R. Part 95 and 46 C.F.R. Part 16. 

 

7. The regulations contained at 33 C.F.R. Part 95 and 46 C.F.R. Part 16 

are binding upon maritime employers only; not mariners themselves. 

Respondent John Allen Gobert cannot be held accountable for 

adherence to the provisions of either. Thus, neither Part can be used as 

a standard of conduct to measure Respondent’s behavior vis-a-vis 46 

C.F.R. §5.27. 

8. For the purposes of this case only, Respondent John Allen Gobert’s 

employer’s company policy manual could be regarded as a sufficient 

source of the “rules” referenced in 46 C.F.R. §5.27, which defines 

Misconduct. 

9. At all relevant times herein and specifically on June 4, 2010, 

Respondent John Allen Gobert’s employer had no “company policy” 

that required “reasonable suspicion” drug testing as alleged in the 

Amended Complaint. Hence, the Coast Guard failed to prove that 

Respondent John Allen Gobert’s employer had a policy pertaining to 

“reasonable suspicion” drug testing. 

10. The Coast Guard failed to prove that Respondent John Allen Gobert 

demonstrated either unacceptable job performance and the odor of 

alcoholic beverage or other signs of intoxication; unusual job behavior 

and the odor of alcoholic beverage or other signs of intoxication; 
23

observable symptoms of intoxication and the odor of alcoholic 

beverages; or any accident or near miss and the odor of alcoholic 

beverages or other signs of intoxication on or about June 4, 2010. 

11. Neither Benjamin Conner’s nor Jennifer Maysonet’s observations of 

Respondent John Allen Gobert on the morning of June 4, 2010 provide 

a sufficient quantum of evidence to support a finding of either 

probable cause, reasonable cause or reasonable suspicion of either 

drug or alcohol use by Respondent John Allen Gobert on or about June 

4, 2010. 

12. The Coast Guard failed to prove contemporaneous physical, 

behavioral, or performance indicators of probable drug use by 

Respondent John Allen Gobert on or about June 4, 2010. 

13. On or about June 4, 2010, and at or before the time his employer 

requested Respondent John Allen Gobert to submit to chemical testing, 

no person had observed evidence that the Respondent’s manner, 

disposition, speech, muscular movement, general appearance or 

behavior had been affected by an intoxicant so that it was apparent by 

observation. 

 

14. The Coast Guard failed to prove Respondent John Allen Gobert’s 

manner, disposition, speech, muscular movement, general appearance 

or behavior suggested any alcohol or drug use or abuse on or about 

June 4, 2010. 

15. Respondent John Allen Gobert correctly “refused” to submit to the 

chemical test which was improperly ordered by his employer on or 

about June 4, 2010. 

16. Respondent John Allen Gobert did not commit “Misconduct” as that 

term is defined in 46 C.F.R. §5.27 and as alleged in the Amended 

Complaint. 

VI. CONCLUSION 

For the foregoing reasons, the Court finds the Coast Guard has NOT 

PROVED its allegations that Respondent wrongfully failed to submit to a 

“reasonable suspicion” (or probable cause or reasonable cause) drug or alcohol 

test, nor did Respondent wrongfully fail to follow a company policy by refusing 
24

to submit to a “reasonable suspicion” (or probable cause or reasonable cause) 

drug or alcohol test. 

WHEREFORE, 

VII. ORDER 

IT IS HEREBY ORDERED, that the allegations as set forth in the Coast 

Guard’s Amended Complaint issued on August 13, 2010, are DISMISSED. 

PLEASE TAKE NOTE, that issuance of this Decision and Order serves 

as notice of the parties’ right to appeal under 33 C.F.R. Part 20, Subpart J. A 

copy of Subpart J is provided as Attachment B. 

Done and dated this the 26th day of January, 2011, 

at New Orleans, Louisiana. 

 ______________________________ 

 HONORABLE BRUCE TUCKER SMITH 

 ADMINISTRATIVE LAW JUDGE

 UNITED STATES COAST GUARD
25

ATTACHMENT A – EXHIBIT & WITNESS LIST

COAST GUARD EXHIBITS 

1. Guide to Policies and Practices of B.N. Barrios & Sons (17 pages) 

2. June 2010 work log for John Gobert (1 page)

COAST GUARD WITNESSES 

1. Benjamin J. Conner 

2. Jennifer Maysonet 

RESPONDENT EXHIBITS 

A. Captain’s daily boat log (4 pages) 

B. Letter dated August 30, 2010 signed by W. Gene Seaman (1 page) 

RESPONDENT WITNESSES 

 

1. Raymond Johnson 

2. W. Gene Seaman 

3. John A. Gobert 

ALJ EXHIBITS 

 None 

ALJ WITNESS LIST 

None 
26

ATTACHMENT B – NOTICE OF ADMINISTRATIVE APPEAL RIGHTS 

33 CFR 20.1001 General. 

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

The party shall file the notice with the U. S. Coast Guard Administrative 

Law Judge Docketing Center; Attention: Hearing Docket Clerk; Room 

412; 40 S. Gay Street; Baltimore, MD 21201-4022. The party shall file the 

notice 30 days or less after issuance of the decision, and shall serve a copy 

of it on the other party and each interested person. 

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

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

evidence. 

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

precedent, and public policy. 

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

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

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

issue that no hearing was held or that in the issuance of the decision the 

ALJ did not consider evidence that that person would have presented. 

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

33 CFR 20.1002 Records on appeal. 

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

appeal. 

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

of the record of proceeding, then, -- 

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

Guard will provide the transcript on payment of the fees prescribed 

in 49 CFR 7.45; but, 

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

contractor will provide the transcript on the terms prescribed in 49 

CFR 7.45. 

33 CFR 20.1003 Procedures for appeal. 

(a) Each party appealing the ALJ’s decision or ruling shall file an 

appellate brief with the Commandant at the following address: U.S. Coast 

Guard Administrative Law Judge Docketing Center; Attention: Hearing 

Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, MD 21201-4022, 

and shall serve a copy of the brief on every other party. 

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

objections to the decision or ruling. The brief must set forth, in 

detail, the -- 
27

(i) Basis for the appeal; 

(ii) Reasons supporting the appeal; and 

(iii) Relief requested in the appeal. 

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

the appellate brief must specifically refer to the pertinent parts of 

the record. 

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

less after service of the ALJ’s decision. Unless filed within this 

time, or within another time period authorized in writing by the 

Docketing Center, the brief will be untimely. 

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

less after service of the appellate brief. Each such party shall serve a copy 

on every other party. If the party filing the reply brief relies on evidence 

contained in the record for the appeal, that brief must specifically refer to 

the pertinent parts of the record. 

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

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

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

which event the Commandant will allow a reasonable time for the 

party to file that brief. 

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

in an appeal of an ALJ’s decision. 

33 CFR 20.1004 Decisions on appeal. 

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

whether the ALJ committed error in the proceedings, and whether the 

Commandant should affirm, modify, or reverse the ALJ’s decision or 

should remand the case for further proceedings. 

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

shall serve a copy of the decision on each party and interested person. 
28

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing DECISION & ORDER was sent by 

the methods indicated to the following parties and entities: 

 LT Pedro Mendoza 

 USCG Marine Safety Unit Morgan City 

 800 David Drive 

 Morgan City, LA 70380 

Via email: pedro.l.mendoza@uscg.mil

 LT Jason Boyer 

 USCG Marine Safety Unit Houma 

 425 Lafayette Street 

 Houma, LA 70360 

Via email: jason.a.boyer@uscg.mil 

 

Nicole Dufrene Streva, Esq. 

 Ramsey, Skiles & Streva 

 1915 Highway 182 

 Morgan City, LA 70380 

 Via FedEx 

 ALJ Docketing Center 

 U.S. Coast Guard 

 U.S. Customs House 

 40 South Gay Street 

 Baltimore, MD 21202-4220 

 Via MISLE 

 

Done and dated this 26th day of January, 2011, 

at New Orleans, Louisiana. 

 

 _____________________________ 

KATY J.L. DUKE, ESQ.

 ATTORNEY-ADVISOR
29