UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

UNITED STATES OF AMERICA

UNITED STATES COAST GUARD

v.

MERCHANT MARINER LICENSE

Issued to: RANDY JOE GREEN

DECISION OF THE

VICE COMMANDANT

ON APPEAL

Np. .2 69 7

This appeal is taken in accordance with 46 U.S.C. § 7703,46 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") dated January 4,2011, Bruce T. Smith, an

Administrative Law Judge (hereinafter "ALJ") ofthe United States Coast Guard at Paducah,

Kentucky, ordered the revocation ofthe Merchant Mariner License ofMr. Randy Joe Green

(hereinafter "Respondent") upon finding proved one charge of use ofor addiction to the use of

dangerous drugs.

The specification found proved alleged that Respondent submitted to a random drug test

on July 15,2010, and that the specimen that he provided subsequently tested positive for the

presence ofmarijuana metabolites.

FACTS AND PROCEDURAL HISTORY

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

Merchant Mariner License. [D&O at 2; Coast Guard Exhibit (hereinafter "CG Ex.") 1]

On July 15,2010, Respondent reported to his place of employment, American Electrical

Power River Operations, near Paducah, Kentucky, and was notified of his selection for random

drug testing. [D&O at 2; Transcript (hereinafter "Tr.") at 26] Respondent's urine sample was
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collected by Mr. Clifford Ray Williamson after Mr. Williamson made a positive identification of

Respondent. [D&O at 2; Tr. at 20-35] After collection, Respondent's urine sample was sent to

Advanced Toxicology Network laboratory, via Federal Express, for testing. [D&O at 2]

Respondent's urine sample was received at the Advanced Toxicology Network laboratory on

July 16,2010. [Id.] Ms. Kathy D. Atkins, a certifying scientist, testified that the urine sample

bearing Respondent's unique ID number tested positive for the presence ofmarijuana

metabolites. [D&O at 3; Tr. at 75-78] Dr. Daniel Drew, a certified Medical Review Officer,

reviewed and verified the drug test results generated by the Advanced Toxicology Network

laboratory and determined, after interviewing Respondent (who did not offer any explanation as

to how the test could have resulted in a positive result), that Respondent's test was positive. [Tr.

at 3-4]

On August 10,2010, the Coast Guard filed a Complaint against Respondent's Merchant

Mariner License, which it amended on September 24,2010. Both the original Complaint and the

Amended Complaint alleged that Respondent provided a random urine sample that subsequently

tested positive for the presence ofmarijuana metabolites. [D&O at 1] On September 2, 2010,

Respondent filed an Answer to the Complaint. In his Answer, Respondent checked a box which

indicated that he denied only factual allegations 4 and 5 ofthe Complaint. By inference, he

admitted factual allegations 1-3 ofthe Complaint, which included the allegation that on July 15,

2010, "Respondent took a random drug test." On October 19,2001, Respondent filed a Motion

to Dismiss asserting that the case lacked substantial, reliable, and probative evidence.

[Respondent's Motion for Dismissal at 1-2] The ALJ stated that the motion would be held in

abeyance until the close ofthe Coast Guard's case. [Pre-Hearing Conference Memorandum &

Order dated October 28, 2010 at 1]

The hearing in the matter convened on December 9, 2010, at the U.S. District Courthouse

in Paducah, Kentucky. [D&O at 1] Respondent appeared pro se. [Id.] The Coast Guard was

represented by non-attorneys LT Charlotte A. Keogh and CWO Tim Smith. [Id.] The Coast

Guard presented the testimony ofthree witnesses and entered thirteen exhibits into the record.

[Id.] Respondent called no witnesses but entered six exhibits into the record. [Id.]

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The ALJ issued his D&O in the matter on January 4, 2011. On January 13,2011,

Respondent filed a Notice of Appeal in this matter. Respondent perfected his appeal by filing an

Appellate Brief on March 3, 2011. Therefore, this appeal is properly before me.

BASIS OF APPEAL

This appeal is taken from the ALl's D&O which found the charge of use ofor addiction

to the use ofdangerous drugs proved. In his pro se appellate filing, Respondent raises several

issues. Given my disposition ofthe following issue, Respondent's remaining bases of appeal

will not be discussed further herein:

Whether the Coast Guard established a primafacie case ofdrug use

against Respondent.

OPINION

To establish a prima facie case of drug use based solely on a urinalysis test result, the

Coast Guard must prove three elements: (1) that Respondent was tested for a dangerous drug, (2)

that Respondent tested positive for a dangerous drug, and (3) that the test was conducted in

accordance with 46 C.F.R. Part 16. Appeal Decisions 2631 (SENGEL), 2621 (PERIMAN),

2592 (MASON), and 2584 (SHAKESPEARE).

Under 46 C.F.R. Part 16, employers are required to conduct five specific types of drug

testing: 1) Pre-employment testing; 2) Periodic testing; 3) Random testing; 4) Serious marine

incident testing; and 5) Reasonable cause testing. 46 C.F.R. §§ 16.210-16.250; Appeal Decision

2641 (JONES). Random testing "is specifically authorized by Coast Guard regulation and may,

by its very nature, be conducted without notice or any suspicion of drug use." Appeal Decision

2641 (JONES) (citing 46 C.F.R. § 16.230).

In this case, Respondent allegedly took a random drug test. 46 C.F.R. § 16.230 governs

the random drug testing ofmariners and requires, among other things, "The selection of

crewmembers for random drug testing shall be made by a scientifically valid method." In this

case, because Respondent admitted, via his Answer to the Amended Complaint, that he took a

random drug test, the issue ofrandomness was not developed in the record.

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•

However, Respondent arguably raised the issue of whether his drug test was truly random

early in the proceedings in his pre-hearing Motion to Dismiss. Therein, Respondent argued that

"this case lacks probative evidence. There was no probable or reasonable cause for the random

drug test. I was not on duty or aboard a [sic] uninspected vessel 'upon' western rivers when I

took the random drug test." [Respondent's Motion for Dismissal at 2] Respondent also attacked

the sufficiency ofthe evidence presented and the reliability ofthe drug test due to errors on the

chain of custody form and alleged errors committed by the Medical Review Officer. The ALl

ruled that because Respondent's Motion to Dismiss was better suited to be submitted at the close

ofthe Coast Guard's case-in-chief, the Motion would be held in abeyance until the close ofthe

Coast Guard's case. [Pre-Hearing Conference Memorandum & Order dated October 29,2010 at

1] This ruling was a reasonable response to Respondent's attacks on the sufficiency and

reliability ofthe evidence, but it was not responsive to his argument that "[t]here was no

probable or reasonable cause for the random drug test."

On appeal, Respondent clearly raises the issue ofrandomness: "The Respondent never

admitted in his answer that the process used by AEP to select its employees for testing was

random; as it states in the Decision and Order." [Respondent's Appeal Brief at 7] This is

contradicted in his Answer to the Complaint, where Respondent admitted that he took a random

drug test. 1 By contrast, Respondent's Motion to Dismiss is higWy ambiguous in that the

statement, "There was no probable or reasonable cause for the random drug test," connects

legally inconsistent principles. A random drug test does not require probable or reasonable

cause. However, it is governed by the legal standards set forth in 46 C.F.R. § 16.230, which

requires, among other things, that the selection of crewmembers for random drug testing be made

by a scientifically valid method.

The transcript ofthe hearing suggests that the ALl was cognizant ofthe issue ofthe

randomness ofRespondent's drug test. At the hearing, the following discourse took place

between the ALl and the Coast Guard representative:

1 It appears from the contradiction that Respondent did not realize that, by admitting in his Answer that he took a

random drug test, he was conceding the randomness ofthe test.

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JUDGE SMITH: I'm curious, you pled as an element ofthe offense, and I

read it earlier, that the Respondent took a random drug test, but there was no

proof by the government about the random drug test. Why did you not do that?

CWO SMITH: Because the Respondent admitted that allegation, Your Honor.

JUDGE SMITH: You are relying on his answer to the Complaint as the

basis for your proofin this case?

CWO SMITH: Absolutely, Your Honor.

[Tr. at 167] There was no further discussion ofthe matter. It seems clear that the ALl accepted

that randomness had been conceded by Appellant's Answer.

The federal courts grant wide latitude in construing the pleadings and papers ofpro se

litigants. SEC v. Elliott, 953 F.2d 1560, 1582 (lith Cir. 1992) (citing Maldonado v. Garza, 579

F.2d 338,340 (5th Cir. 1978)). See also Haines v. Kerner, 404 U.S. 519, 520 (1972)

(Allegations set forth in a pro se complaint are held to less stringent standards than formal

pleadings drafted by lawyers). -More generally, "Implicit in the right to self-representation is an

obligation on the part ofthe court to make reasonable allowances to protect pro se litigants from

inadvertent forfeiture ofimportant rights because oftheir lack oflegal training." Traguth v.

Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

In this case, the ALl should have sought clarification from Respondent concerning his

statement that there "was no probable or reasonable cause for the random drug test." Depending

on Respondent's clarification, the randomness of Respondent's drug test might have become a

contested issue.

As previously noted, an element in establishing a prima facie case of drug use based

solely on a urinalysis test result is that the test must have been conducted in accordance with

46 C.F.R. Part 16. 46 C.F.R. Part 16 requires, as is noted above, that crewmembers selected for

random drug testing be selected by a scientifically valid method. 46 C.F.R. § 16.230(c). When

randomness is at issue, ifit is not shown that a respondent was selected for testing by a

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scientifically valid random method, the drug test has not been shown to have been conducted in

accordance with 46 C.F.R. Part 16 and one ofthe elements of a prima facie case has not been

established.

Whether Respondent intended to contest the randomness ofthe test is not clear from the

statement in his Motion to Dismiss, "There was no probable or reasonable cause for the random

drug test." Given that Respondent appears pro se, he is entitled to an opportunity to clarify the

statement. I am remanding the case so that the ALJ can obtain clarification ofRespondent's

statement and take any further action required.

ORDER

The ALl's Order, dated January 4, 2011, is reversed and the case is REMANDED for

proceedings consistent with this opinion.

M1{~-g~ \IA\)~ f liS

r(~LC

Signed at Washington, D.C. this ]4'1day of 2011.

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