UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_________________________________ 

UNITED STATES COAST GUARD 

Complainant

vs. 

AUSTIN RYAN GORE 

Respondent

_________________________________ Docket Number 2012-0460 

Enforcement Activity No. 4272313 

SUPPLEMENTAL DECISION & ORDER 

Date Issued: January 3, 2014 

Issued by: Honorable Bruce Tucker Smith 

Administrative Law Judge 

Appearances:

For Complainant 

LT Thomas N. Hedden 

Jim Wilson, Esq. 

U.S. Coast Guard Marine Safety Unit Morgan City 

For Respondent 

Troy G. Broussard, Esq. 
 On September 5, 2013, the court issued its original Decision & Order in the 

above-captioned matter, finding three of the four Specifications in the Complaint not 

proved. The court found Specification 4, Refusal to Provide a Urine Specimen, proved. 

Although the court ruled in favor of the Coast Guard on Specification 4, the court 

expressed significant reservations about both the manner in which Specification 4 had 

been pled and the quantum of proof that the Coast Guard offered in support thereof. 

Specification 4 alleged Austin Ryan Gore (Respondent) committed Misconduct 

when he refused to provide a urine specimen when ordered to do so by paramedic Hank 

Savin. The court remains concerned that Specification 4 failed to identify any 

“formal, duly established rule” Respondent violated for the purposes of 46 C.F.R. 

§5.27, i.e., “Misconduct.” In its post-hearing brief, the Coast Guard argued: “A 

company policy which says you can use urinalysis to test for alcohol is valid.” That may 

be true – but the court believes (consistent with the dictates of due process) that it is first 

incumbent upon the Coast Guard to plead that policy as the basis for a charge of 

Misconduct. 

In the original Decision & Order, the court presumed that the Galliano “Drug and 

Alcohol Free Work Enviornment Policy” (CG Ex. 3) was an appropriate “rule” for the 

purposes of 46 C.F.R. §5.27; although the Complaint made no such allegation. That 

presumption is the underpinning for the court’s decision herein and may prove a valid 

basis for an appeal by the Respondent. 

Based upon that presumption, the court originally concluded that paramedic Savin 

was vested with a certain degree of professional discretion in the performance of his 
duties on the night of February 18, 2012, and that he appropriately ordered Respondent to 

provide a urine specimen for testing. 

However, on its own motion, the court re-opened the hearing1 on November 12, 

2013, to receive additional testimony from paramedic Savin. The court called paramedic 

Savin to provide additional testimony about his professional qualifications and his 

interactions with Respondent on the night of February 18, 2012. In particular, the court 

wanted to address three issues of concern: 

(1) Whether paramedic Savin was an appropriate person to order 

Respondent to provide a urine specimen? 

(2) Whether paramedic Savin could lawfully order Respondent to 

provide a urine specimen for alcohol testing? 

(3) Whether paramedic Savin could lawfully order Respondent to 

provide a urine specimen for drug testing. 

Paramedic Savin’s Authority 

At the November 12, 2013, rehearing, paramedic Savin testified extensively 

regarding his professional qualifications, to wit: that he is a graduate of a basic, sixmonth emergency medical technician course, offered through the National EMS 

Academy (Tr. Vol. IV at 7); that he is also a graduate of an advanced, eighteen-month 

paramedic course, also offered through the National EMS Academy, which provided 

extensive clinical, classroom, and emergency-room training (Tr. Vol. IV at 10); that, as a 

nationally-registered paramedic, he attends yearly continuing medical education courses 

(Tr. Vol. IV at 9); and that he is trained in the diagnosis and emergency treatment of 

various human medical conditions (Tr. Vol. IV at 9). 

 

1

 Respondent opted not to appear at the November 12, 2013, hearing; however, Respondent’s counsel was 

present and waived his client’s presence. (Tr. Vol. IV at 4). 
Paramedic Savin also testified that although he works under the direction of his 

company’s medical director, Darren Duet, M.D., he (paramedic Savin) was the only 

medical professional stationed at C-Port on the night of February 18, 2012. (Tr. Vol. IV 

at 13 – 14). Paramedic Savin further explained that as one of two paramedics employed 

by Galliano, he worked a 24-hour “on call” seven-day shift, before being relieved by the 

company’s other paramedic – both of whom report to Dr. Duet. (Tr. Vol. IV at 14 – 16). 

Most importantly, paramedic Savin testified that when he was on duty at C-Port, he was 

in charge of the company’s infirmary with full professional responsibility for “anything 

medical” that occurred on the C-Port installation; and thus vested with professional 

discretion to determine an employee’s physical or medical condition. (Tr. Vol. IV at 17). 

The following colloquy is illustrative of paramedic Savin’s professional autonomy: 

Q. Let’s talk about . . . the drug testing environment. Did 

you need permission from an official either with Edison 

Chouest, Dr. Duet, Cajun Ironworks, to obtain a urine 

specimen in an emergency medical situation? 

A. No, sir, I don’t. 

(Tr. Vol. IV at 18) 

Based upon paramedic Savin’s November 12, 2013, testimony, the court 

concludes that paramedic Savin was, under appropriate circumstances, an appropriate 

person to order Respondent to provide a urine specimen. 

As his marine employer’s “agent,” paramedic Savin was certainly vested with the 

appropriate training and independent professional/medical judgment to attempt to collect 

a urine specimen for purposes of routine medical diagnosis and treatment.2

 However, a 

 

2

 In its original Decision and Order, the court found that paramedic Savin had ordered Respondent to 

provide a urine specimen in an effort to determine the nature and extent of Respondent’s medical condition. 

This was a particularly reasonable course for Savin to follow, given Respondent’s obvious impairment and 
crucial question remains: Whether, under the terms of the Galliano Drug and Alcohol 

Free Work Environment Policy, paramedic Savin could direct Respondent to provide a 

urine specimen, particularly if that request was for some reason other than routine 

medical diagnosis and treatment. 

The Galliano policy suggests several independent reasons a urine sample might be 

obtained and tested. 

Urinalysis for alcohol testing

Coast Guard Exhibit 3 is the Galliano “Drug and Alcohol Free Work Environment 

Policy.” That policy provides: 

The company may also require any current employee to 

submit to a urinalysis . . .for . . .alcohol in the following 

circumstances: (2) whenever there is reasonable suspicion 

to believe than an employee is using . . . (emphasis added). 

(CG Ex. 3) 

The policy plainly states that Galliano may require an employee to submit to a 

urinalysis if that employee is reasonably suspected of alcohol use. The court notes, 

however, that the Galliano policy is at odds with the express provisions of 46 C.F.R. 

§16.500(a)(2), which specifies that the alcohol testing provisions of 49 C.F.R. Part 40, 

(i.e., urinalysis) are inapplicable to the Coast Guard or marine employers. If 46 C.F.R. 

§16.500 is an expression of public policy that the urinalysis testing procedures set forth in 

49 C.F.R. Part 40 are inapplicable to maritime alcohol testing, how can a marine 

employer’s policy require otherwise? It is axiomatic that in American jurisprudence, 

 

paramedic Savin’s professional need to diagnose the cause of that impairment. Even though it was 

medically appropriate for paramedic Savin to attempt to obtain a urine specimen for that reason, 

Respondent was not legally obliged to provide a specimen for the purpose of medical diagnosis, per se. 

Hence, a charge of Misconduct cannot stand for Respondent’s failure to provide a urine specimen for the 

purpose of medical diagnosis and treatment alone. 

 
when a contract (or here, an employer’s policy) violates public policy, as expressed in 

statute or regulation, it is void ab initio and will be treated as though no contract (or 

policy) ever existed. Respondent’s post-hearing brief correctly cites as settled law the 

proposition that an employer’s policies which contravene federal constitutions, statutes 

and administrative regulations may render an employment contract may void. See

DeGaetano v. Smith Barney, Inc., 983 F.Supp. 459 (S.D.N.Y. 1997) quoting Thomas 

James Assoc. v. Jameson, 102 F.3d 60 (2d Cir. 1996). See also Paul Revere Life Ins. Co. 

v. Fima, 103 F.3d 490 492 (9th Cir. 1977); United States v. Acorn Technology Fund, L.P., 

295 F. Supp 2d 494 (E.D. Pa. 2003). Thus, per the express provisions of 46 C.F.R. 

§16.500(a)(2), paramedic Savin could not solicit Respondent’s urine specimen for the 

purposes of alcohol testing. 

Urinalysis for drug testing

However, the Galliano policy also provides that: “The company may also require 

any current employee to submit to a urinalysis and/or blood test for drugs . . . in the 

following circumstances: (1) following an accident occurring within the course and scope 

of employment; (2) whenever there is reasonable suspicion to believe that an employee is 

using drugs . . . in violation of the company’s policy . . .” (emphasis added). 

The court concludes that it was proper for paramedic Savin to order Respondent 

to provide a urine specimen for the purposes of drug testing “following an accident 

occurring within the course and scope of employment.” Likewise, the court also 

concludes that paramedic Savin had “reasonable suspicion to believe that an employee is 

using drugs . . . in violation of the company’s policy.” 
(1) Post Accident

In reference to the night of February 18, 2012, paramedic Savin testified : 

Q. All right. So it was Mr. Bourgeois who called you to the scene? 

A. Correct, he called me to the scene. 

Q. And you had a guy who had fallen into the water and maybe 

injured himself. We need a medical professional there now. 

A. Yes, sir. 

. . . 

Q. You were en route to an uncertain medical situation. You’d 

been asked to go there by Mr. Bourgeois. You’d called Mr. 

Pellegrin. He said okay, and he gave you guidance on the phone, 

correct? 

A. Yes. 

Q. What specifically did he tell you? 

A. He goes, get the guy evaluated, make sure he’s okay. 

Q. Physical evaluation. 

A. Yes, sir. 

Q. Make sure there are no broken bones or crushed skull. 

A. Absolutely. That’s first and foremost. When I got there, like I 

said, Mr. Austin [Gore] had a little bit of blood on his face and 

stuff. I was focusing on the medical aspect of it at that time. 

(Tr. Vol. IV at 20 – 22). 

 Based upon his testimony, the court is satisfied that on the night of February 18, 

2012, paramedic Savin was called to the scene of an accident involving Respondent. 

Hence, the court concludes that, under the terms of the Galliano Drug and Alcohol policy 

(CG Ex. 3), it was proper for paramedic Savin to order Respondent to provide a urine 

specimen for the purposes of drug testing “following an accident occurring within the 
course and scope of employment.” Respondent’s failure to provide a specimen was a 

violation of the Galliano Drug and Alcohol policy and thus, Misconduct. 

(2) Reasonable Suspicion

 The court also finds that paramedic Savin also held a reasonable suspicion of drug 

use sufficient to warrant a urinalysis, per the terms of the Galliano Drug and Alcohol 

policy (CG Ex. 3). In response to repeated questioning by the court and counsel for both 

parties, paramedic Savin’s testimony established he held the requisite reasonable 

suspicion of Respondent’s drug use. The following colloquy is instructive: 

Q. . . . So if you were attempting to obtain a urine specimen for 

eventual drug testing, why were you interested in the results of a 

drug test? Why did you want to know that? 

A. Like I said, he already appeared to be intoxicated and the results 

came out on a Breathalyzer. Like I said, I wanted to cover my rear, 

so to speak, and obtain a drug screen. That way I could say 

everything was done, but it didn’t happen that way. 

Q. Did you have a reasonable belief or suspicion that the 

Respondent had been using drugs? 

A. With the way he was acting, I definitely suspected alcohol, but 

it could have possibly been drug use there too as well. I don’t 

know. Like I say, when you have slurred speech, having a hard 

time standing up, you know, I was kind of suspecting possible 

other things.

Q. And to ask the same question again: Did his earlier statement to 

you that he used cocaine, did that factor into your thinking at all? 

A. No, sir. If I remember correctly, Your Honor, I believe that 

conversation happened after I had tried to obtain the drug screen. 

Q. So he did not tell you about his potential drug abuse, cocaine, 

until after he was unable to supply a urine specimen? 

A. If I remember correctly, Your Honor – I could be wrong, it was 

a long time ago – but if I remember correctly, it possibly happened 

after -- the conversation happened after the attempt. 
(Tr. Vol. IV at 27 – 28). 

Q. Okay, and I understand that, but did you have a reasonable 

suspicion that he had used drugs?

A. Yes, sir, I did. Absolutely. 

Q. And what were the observations you made that led you to that 

suspicion? 

A. Like I said, when I approached Mr. Austin Gore the first time, 

he was slurred speech, swaying in the wind, basically having a 

hard time standing up, uncoordinated, and so that kind of led me to 

believe either alcohol or drug use or both. 

(Tr. Vol. IV at 29). 

Thus, the import of this Supplemental Decision & Order is that for the purposes 

of Specification 4, the court specifically finds3 that Respondent committed Misconduct 

by his failure to submit to a drug urinalysis when he was properly directed to do so by 

paramedic Hank Savin. Paramedic Savin was an appropriate agent of Galliano Marine to 

direct Respondent to provide a urine specimen, per the provisions of the Galliano policy 

which required Respondent to provide a urine specimen for drug testing “following an 

accident occurring within the course and scope” of Respondent’s employment and/or 

because “there was a reasonable suspicion to believe” Respondent had used drugs in 

violation of his employer’s policy. (CG Ex. 3). 

 

3

 This finding is to be read together, and in concert with, Finding of Fact 14 of this court’s initial Decision 

& Order, September 5, 2013. Otherwise, the court hereby incorporates and adpots the entirety of its 

September 5, 2013 Decision & Order, including all Findings of Fact previously issued in this case. 
Whether the Coast Guard’s failure to plead a violation of the employer’s policy as 

the basis for a charge of Misconduct amounts to a denial of due process – is for the 

Commandant to decide. 4 

WHEREFORE, this courts’ original Order of REVOCATION is affirmed. 

IT IS SO ORDERED. 

Done and dated this 3rd of January, 2014, at New Orleans, LA 

_________________________ 

HON. BRUCE T. SMITH 

Administrative Law Judge 

United States Coast Guard

 

 

4

Respondent did not object to the Coast Guard’s failure to plead a basis for Misconduct in Specification 4 

until the November 12, 2013, hearing. (Tr. Vol. IV at 65).