UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

PAUL B. MCMILLAN 

Respondent. 

Docket Number CG S&R 02-0577 

CG Case No. 1670363 

DECISION AND ORDER 

Issued: November 24,2003 

Issued by: Thomas E. McElligott, Administrative Law Judge 

Appearance: 

Lieutenant Derek A. D'Orazio, Attorney, and Senior Investigating Officer; and 

Senior Chief John I. Brown, Marine Science Technician, Investigating Officer, both 

Investigating Officers stationed at the Marine Safety Office for the ports of Houston to 

Galveston, 9640 Clinton Drive, Houston, Texas 77029. 

For the Coast Guard 

Paul B. McMillan, pro se. 

For the Respondent 
PRELIMINARY STATEMENT 

This is a hearing before an Administrative Law Judge brought under 46 U.S.C. 

7704(c) and 46 CFR 5.35. 1 The Complaint alleged Respondent was a holder of a 

Merchant Mariner Document (MMD) and a user of dangerous drugs.2 On September 13, 

2002, the Investigating Officer served the Complaint on Respondent by certified mail, 

return receipt requested. In the Complaint, the Coast Guard sought revocation of 

Respondent's Merchant Mariner's Document issued by the U.S. Coast Guard in 

accordance with 46 U.S.C. 7704. 

In the Answer, Respondent denied the jurisdictional and factual allegations. 

Additionally, Respondent's answer asserted that on July 14, 2002 he was involved in a 

four-wheeler accident that required him to have minor surgery in which he received 

Lidocain and Marcaine, which caused a positive drug test result. The Respondent 

attached five (5) pages of medical records from the Kingwood Medical Center to his 

answer. Respondent also stated that he wanted a hearing before an Administrative Law 

Judge on these matters. 

The matter proceeded to hearing on March 12, 2003, in Houston, Texas, before 

Administrative Law Judge Thomas E. P. McElligott. Investigating Officer Senior Chief 

John I. Brown represented the Coast Guard. The Respondent was pro se. At the hearing, 

eleven (11) exhibits were admitted into evidence at the Coast Guard's request and three 

1 During the pendency of this case, the U.S. Coast Guard transferred from the Department of Transportation 

to the Department ofHomeland Security. Pursuant to the Savings Provision ofHR 5005 Section 1512 (PL 

107-296), pending proceedings are continued notwithstanding the transfer of the agency. 

2 It should be noted that the number on Respondent's Merchant Mariner's Document is different than the 

number the Coast Guard alleges in its Complaint. Although failure to list a correct Merchant Mariner 

Document may potentially subject a complaint to a motion for dismissal in the pre-hearing stage, at this 

stage the error is harmless, because the Respondent had a chance to dispute evidence at the hearing and a 

copy of Respondent's actual Merchant Mariner's Document was admitted into evidence at the hearing. 

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(3) witnesses testified for the Coast Guard. The Respondent did not introduce any 

exhibits into evidence or have any witnesses testify on his behalf. The Administrative 

Law Judge introduced one exhibit into evidence on his own. 

FINDINGS OF FACT 

1. On July 14, 2002, Respondent received treatment from the Kingwood Medical 

Center for injuries from a four-wheeler accident. (IO Ex. 6). 

2. Respondent was given Lidocain and Marcaine injections on July 14, 2002. 

3. On August 9, 2002, the Respondent held a Coast Guard issued MMD. (IO Ex. 3). 

The Respondent's MMD gives his full name as Paul Bryan McMillan. His MMD 

contains his left thumbprint and expires on November 1, 2004. It states he was 

found qualified for Ordinary Seaman, Wiper, Steward's Department Food 

Handler and Tankerman-"PIC (DL)". (IO Ex. 3). 

4. Respondent took a pre-employment drug test on Friday, August 9, 2002. (IO Ex. 

10). 

5. Ms. Katrina Jefferson, of Concentra Medical Centers collected Respondent's 

urine specimen. She is a Medical Assistant and Supervisor with two and one-half 

(2 Yz) years of training and urine collection experience. 

6. Ms. Jefferson took a split urine sample in two (2) bottles from Respondent. 

7. The Respondent and Ms. Jefferson signed a "Federal Drug Testing Custody and 

Control Form" (Custody and Control Form) on Friday, August 9, 2002. (IO Ex. 

4). 

8. The Custody and Control Form listed Respondent's Specimen Identification 

(Specimen Id.) number as 103038170. (IO Ex. 4). 

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9. On August 9, 2002, Ms. Jefferson released Respondent's urine sample to 

Advanced Toxicology (the laboratory). (IO. Ex. 4 & 10). 

10. The laboratory received the Respondents urine specimen on August 9, 2002 with 

the primary specimen bottle seal intact. (IO Ex. 1 0). 

11. The urine specimen was analyzed by Advanced Toxicology Network, a U.S. 

Department of Health and Human Services certified laboratory. (IO Ex. 10). The 

laboratory performed an initial screen and a confirmation test on Respondent's 

urine sample. (IO Ex. 1 0). 

12. The Respondent's urine specimen tested positive for cocaine metabolite. (IO Ex. 

1 0). The laboratory conducted a confirmation test on Specimen Id. Number 

103038170 and detected 626 ng/ml ofBenzoylecgonine in Respondent's urine 

sample. (IO Ex. 10). 

13. Choice Point Medical Review Officers (MROs) interviewed the Respondent 

regarding his positive drug test and verified the test results. Choice Point Medical 

Review Officers employs ten MROs but operates as a single MRO to avoid delays 

in getting reports to employers. (IO Ex. 5). 

14. The MROs reviewed Respondent's medical records from Kingwood Medical 

Center and found that Respondent was not given cocaine at any time in the 

Kingwood Medical Center. 

15. Usually large amounts of cocaine completely flush out of the human body within 

one (1) week. After that, a person who takes no more cocaine will test below the 

positive cut off concentration in 49 CFR 40.87 and will therefore test in the 

negative range or clear. 

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16. There is no cocaine in Lidocain or Marcaine that would have caused Respondent 

to test positive twenty-six (26) days later for cocaine use. 

17. Respondent's marine employer, Blessey Marine Services, Inc., notified the Coast 

Guard Marine Safety Office (MSO) for the port of Houston to Galveston that 

Respondent's urine sample given on August 9, 2002 tested positive for cocaine. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Respondent was a holder of a Merchant Mariner's Document on August 9, 2002. 

2. The Complaint alleging "Use of a dangerous drug", namely cocaine, in violation of 

46 U.S.C. 7704(c), is found proved by a preponderance of the reliable and probative 

evidence. 

DISCUSSION 

The Administrative Procedure Act (APA), 5 U.S.C. 551-559, governs Coast 

Guard suspension and revocation hearings. 46 U.S.C. 7702(a). The APA only authorizes 

sanctions to be imposed if upon consideration of the record as a whole the charges are 

supported by reliable, probative, and substantial evidence. 5 U.S.C. 556(d). "The term 

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

Supreme Court." Appeal Decision 24 77 (TOMBARI) (1988). The burden of showing 

something by a preponderance of the evidence "simply requires the trier of fact 'to 

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

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

existence.'" Concrete Pipe and Products of California, Inc. v. Construction Laborers 

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Pension Trust for Southern California, 508 U.S. 602, 622 (1993) (Citing In re Winship, 

397 U.S. 358, 371-372 (1970). (Harlan, J., concurring) (brackets in original)). Under 

Coast Guard regulations, the Coast Guard bears the burden of proving the charges by a 

preponderance of the evidence. 33 CFR 20.701, 20.702(a). Therefore, the Coast Guard 

must prove with reliable and probative evidence that Respondent more likely than not 

committed the violation charged. 

Title 46 U.S.C. 7704(c) provides a license, certificate of registry, or merchant 

mariner document shall be revoked if the holder has been shown to be a user of or 

addicted to a dangerous drug unless the holder proves cure. An individual will be 

presumed to be a user of dangerous drugs if the individual fails a chemical test for 

dangerous drugs. 46 CFR 16.201(b); Appeal Decision 2529 (WILLIAMS) (1991). The 

Coast Guard may establish a prima facie case by showing (1) the Respondent was tested 

for a dangerous drug, (2) the Respondent tested positive for a dangerous drug, and (3) the 

drug test was conducted in accordance with 46 CFR Part 16. Appeal Decision 2584 

(SHAKESPEARE) (1997). 

As the evidence in the record shows the Respondent was a holder of a Merchant 

Mariner Document, the next question is whether the Coast Guard has made a prima facie 

case that Respondent was a user of dangerous drugs under 46 U.S.C. 7704(c). (IO Ex. 3). 

A. Respondent was tested for dangerous drugs. 

The evidence shows on August 9, 2002 the Respondent gave a urine specimen for 

a pre-employment drug test. (IO Ex. 4 & 10). Additionally, the evidence demonstrates 

an unbroken chain of custody of Respondent's urine sample from the time Respondent 

gave his urine sample through all phases of testing. Respondent's urine sample was 

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collected by Ms. Jefferson, Ms. Jefferson released the urine sample to the laboratory, the 

urine sample arrived at the lab with the primary specimen bottle seal intact, and the 

laboratory performed an initial and a confirmation test on Respondent's urine sample. 

(IO Ex. 1 0). As the Coast Guard introduced evidence that Respondent took a preemployment drug test on August 9, 2002 and his urine sample subsequently tested for 

dangerous drugs, the Coast Guard has made a prima facie showing of this element. 

B. Respondent tested positive for a dangerous drug 

Based on the evidence, Respondent's urine sample tested positive for a dangerous 

drug. A "dangerous drug" is "a narcotic drug, controlled substance, or a controlled 

substance analog (as defined in section 102 of the Comprehensive Drug Abuse and 

Control Act of 1970). 46 U.S.C. 2101(8a). A "controlled substance" is defined as a 

"drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V 

of part B of this subchapter." 21 U.S.C. 802. Cocaine is listed in schedule II of the 

controlled substances schedules. 21 U.S.C. 812(c). Since cocaine is included in schedule 

II of the controlled substances schedules, cocaine is a dangerous drug within the meaning 

of 46 U.S. C. 7704(c). 

Respondents urine sample was confirmed to contain 626 ng/ml of 

Benzoylecgonine. (IO Ex. 10). As the laboratory is required under 49 CFR 40.87(a & c) 

to report a confirmed concentration ofBenzoylecgonine greater than 150 ng/ml as a 

positive result for cocaine and the MROs verified the certified laboratory's findings, the 

Coast Guard has made a prima facie showing that Respondent tested positive for a 

dangerous drug. (10 Ex. 5). 

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C. The drug test was conducted in accordance with 46 CFR Part 16. 

Under 46 CFR 16.201(a) chemical testing of personnel under Subpart B of Part 16 

of Title 46 of the CFR must be conducted in accordance with the procedures detailed in 

49 CFR part 40. The Commandant has held that the Coast Guard has made a prima facie 

showing of this element when the Coast Guard introduced evidence involving the 

collection process, the chain of custody, how the specimen was handled and shipped to 

the testing facility, proof of the qualifications of the laboratory. Appeal Decision 2632 

(WHITE) (2002). The evidence in the record demonstrates that Respondent's urine 

sample was collected by a trained collector, a split sample was collected, there was an 

unbroken chain of custody, the laboratory performing the initial and confirmation tests 

was certified by the Department of Health and Human Services, and the MROs verified 

the test results. (10 Ex. 5, 10). Therefore, the Coast Guard has made a prima facie 

showing that the drug test was conducted in accordance with 49 CFR part 40. 

Once the Coast Guard establishes a prima facie case, the burden then shifts to the 

Respondent to produce persuasive evidence to rebut the presumption Respondent is a 

user of dangerous drugs. Appeal Decision 2584 (SHAKESPEARE) (1997) (citing 

Appeal Decision 2379 (DRUM) (1985) (When a vessel strikes a fixed object a 

presumption of negligence establishes a prima facie case of negligence, and Respondent 

then has the burden of rebutting that presumption)). If the Respondent does not produce 

any persuasive rebuttal evidence, the ALJ may find the charges proved based solely on 

the presumption. Appeal Decision 2584 (SHAKESPEARE) (1997) (citing Appeal 

Decision 2266 (BRENNER) (1981) (Unrebutted presumption of negligence sufficient to 

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find charge of negligence proved) and Appeal Decision 2174 (TINGLEY) (1980) (ALJ 

could rely solely on the unrebutted presumption of negligence)). 

To rebut the Coast Guard's prima facie case, the Respondent has argued that he 

tested positive for cocaine, because he was given Lidocain and Marcaine for minor 

surgery he had on July 14, 2002 as a result of a four-wheeler accident. However, there is 

no evidence in the record to support a claim that Lidocain and Marcaine given to a person 

could cause a person to test positive for cocaine 26 days after the person was given 

Lidocain and Marcaine. In fact, the evidence was that Lidocain and Marcaine do not 

contain cocaine and would not cause Respondent to test positive for cocaine 26 days after 

receiving Lidocain and Marcaine. The evidence also showed that Respondent did not 

receive cocaine during his treatment at the Kingwood Medical Center, and even if 

Respondent had received cocaine on July 14, 2002 as part of his treatment, it would not 

have been present in Respondent's urine 26 days later. As Respondent has not offered 

any evidence to rebut the Coast Guard's prima facie case, the Coast Guard has proved by 

a preponderance of reliable and probative evidence the Respondent is a user of dangerous 

drugs under 46 U.S.C. 7704(c). 

The only remaining issue is the sanction. 

SANCTION 

Title 46 U.S.C. 7704(c) requires revocation of a license, certificate of registry, or 

merchant mariner's document if the holder is a user of or addicted to dangerous drugs 

unless the holder provides satisfactory proof of cure. Cure is a two step process that 

requires the Respondent to have successfully: (1) completed a bona fide drug abuse 

rehabilitation program and (2) demonstrated complete non-association with drugs for one 

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year after successful completion of the rehabilitation program. Appeal Decision 2535 

(SWEENEY) (1992). An ALJ may continue a hearing if the Respondent has 

demonstrated substantial involvement in the cure process by proof of enrollment in an 

accepted rehabilitation program. Appeal Decision 2535 (SWEENEY) (1992). As the 

Respondent did not offer any evidence of substantial involvement in the cure process, the 

appropriate sanction is revocation of his Merchant Mariner's Document. 

AD VICES 

The Respondent is advised of his right to appeal in accordance with Subpart J of 

33 CFR Part 20, which is enclosed herein. 

ORDER 

Based upon the facts, the applicable law and consideration of the entire record, 

Respondent's U.S. Coast Guard issued Merchant Mariner's Document is hereby 

REVOKED. This includes all duplicates of that document and any other U.S. Coast 

Guard Merchant Mariner's Licenses or Documents issued to Respondent that have not 

expired. The Respondent's U.S. Merchant Mariner's Document is to be immediately 

delivered by hand or mail to the Senior Investigating Officer or an Investigating Officer 

of the U.S. Coast Guard, Marine Safety Office Houston-Galveston, 9640 Clinton Drive, 

Houston, Texas 77029. 

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Done and dated on November 24,2003 

Houston, Texas 

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