UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

UNITED STATES OF AMERICA

UNITED STATES COAST GUARD

vs.

MERCHANT MARINER LICENSE

Issued to: GARY L. HENSLEY

DECISION OF THE

VICE COMMANDANT

ON APPEAL

NO. 2688

This appeal is taken in accordance with 46 U.S.C. § 7701 ef 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") dated August 14, 2008, Coast

Guard Administrative Law Judge (hereinafter "AU") Bruce T. Smith dismissed the

Coast Guard's Complaint alleging use ofor addiction to the use ofdangerous drugs (fOf

failure of a pre-employment drug test) against Gary L. Hensley (hereinafter

"Respondent"). The AU dismissed the Coast Guard's Complaint upon finding that

"[tJhe Coast Guard did not prove Respondent failed a pre-ernployroent drug test

conducted in accordance with 46 C.F.R. Part 16 and 49 C.F.R. Part 40." [D&O at 17]

The Coast Guard appeals.

PROCEDURAL HISTORY

The Coast Guard filed its Complaint against Respondent with the Coast Guard

AU Docketing Center on July 31, 2007. [D&O at 2J Respondent filed an Answer to the
HENSLEY

Complaint on August 6, 2007.' [Id; Answer at I]

No. 2688

The hearing in the matter commenced on May 22, 2008, in New Orleans,

Louisiana. The AU issued his D&O dismissing the Coast Guard's Complaint on August

14,2008. Thereafter, on September 9, 2008, the Coast Guard filed its Notice of Appeal.

The Coast Guard perfected its appeal by filing an Appellate Brief on October 14, 2008.

Respondent filed a timely Reply Brief, after receiving a proper time extension from the

AU, on December 1,2008. Therefore, this appeal is properly before me.

APPEARANCES: Respondent was represented, at the hearing and on the Reply

Brief, by Les A. Martin, Esq., 3221 Behnnan Place, Suite 105, New Orleans, Louisiana

70114. The Coast Guard Investigating Officers were LCDR Melissa J. Harper and MSTI

Cynthia Dubach ofU.S. Coast Guard Sector New Orleans, Louisiana. LCDR Harper

filed the Appeal Brief for the Coast Guard.

FACTS

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

Merchant Mariner License. [D&O at 3]

On April 14, 2007, Respondent applied for a job with Florida Marine.

[Transcript hereinafter "Tr." at 134-35] As a condition of employment with Florida

Marine, Respondent was required to submit to a pre-employment drug test. [Id.l

Respondent presented himself on April 16, 2007, at the Redi-Med Clinic and

Occupational Health Services, in Mandeville, Louisiana, to provide a urine sample for

I A review ofthe Certificate of Service portion ofRespondent's Answer shows that he incorrectly dated the

document as being filed on August 6, 2008. The AU repeated this error in his 0&0. However, the AU

Docketing Center stamped the document as being received in 2007. Because the record does not contain

any evidence to suggest that Respondent's Answer was untimely, this decision concludes that the Answer

was filed in 2007, rather than in 2008. The AU's error regarding the date was harmless.

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HENSLEY No. 2688

pre-employment drug testing. [D&O at 3; Tr. at 31, 135-36; Coast Guard Exhibits 2 & 3]

Ms. Mary Adkins, a properly trained and certified Department ofTransportation

(hereinafter "DOT") urine specimen collector and employee ofthe Redi-Med Clinic,

collected a single urine sample from Respondent on April 16, 2007. [D&O at 3,5; Tf. at

11-14,36; Coast Guard Exhibit 1]

After Respondent provided his urine sample, Ms. Adkins perfonned an "instant

drug test" on the sample. [D&O at 4, Tf. at 36-38] The "instant drug test" is less reliable

than formal testing conducted by a DOT certified laboratory and is not part ofthe DOTapproved drug testing protocol. [D&O at 5; Tr. at 46, 116; Coast Guard Exhibit 4 at 38-

39] The test is conducted by inserting a plastic card into a urine specimen cup for several

seconds and then removing the card. 2 [D&O at 4; Tf. 36-38] In Respondent's case, the

"instant drug test" showed that Respondent's urine sample was negative for a variety of

drugs, including marijuana metabolites. [D&O at 5; Coast Guard Exhibit 3, at 14] Both

parties stipulated that the instant test strip inserted into the specimen was sterile. [D&O

at 14 footnotel; Tr. at 122-124; Coast Guard Exhibit 6]

Immediately after performing the "instant drug test" on Respondent's urine

sample, Ms. Adkins divided Respondent's urine into two separate containers, thus

providing a split sample for further testing. [D&O at 4; Tr. at 136] Ms. Adkins then

sealed the containers holding Respondent's urine, bagged them, and shipped them to

Kroll Laboratories, where DOT testing ofRespondent's urine occurred. [D&O at 5; Tr.

at 28~30; Coast Guard Exhibit 5J After tests revealed that Respondent's urine specimen

was positive for the presence of marijuana metabolites, the Medical Review Officer

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HENSLEY No. 2688

(hereinafter "MRO"), verified those results as positive for the presence ofmarijuana

metabolites. [D&O at 6; Coast Guard Exhibit 4 at 6-13, 19, 31, 38-39J Shortly

thereafter, the MRO's office contacted Respondent and informed him ofthe positive test

result. [D&O at 6; Tr. at 137-38] In response, Respondent requested that his split sample

be submitted for further testing. [D&O at 6; Tr. at 138J The split sample test yielded a

positive result for marijuana metabolites. [D&O at 7; Tr. at 138-39; Coast Guard Exhibit

4 at 26J

The AU found that the insertion ofthe sterile, instant test strip used in this

instance does not contaminate specimens with marijuana metabolite. [D&O at 5; Coast

Guard Exhibits 6 & 7] However, the AU found that the insertion ofthe instant test strip

into the specimen constituted a violation ofDOT drug testing procedures. [D&O at 13]

The AU also determined that the insertion ofthe instant strip violated the integrity ofthe

specimen. [D&O at 14] The AU found Respondent's testimony that he had not used

drugs in this instance credible, supported by the fact that the instant test yielded a

negative result, that he had not previously failed a drug test in 23 years, and that he had

passed multiple subsequent tests. [D&O at 16-17J Ultimately, the AU dismissed the

Complaint after finding that "[t]he Coast Guard did not prove Respondent failed a preemployment drug test conducted in accordance with 46 C.F.R. Part 16 and 49 C.P.R. Part

40." [D&O at 17]

BASES OF APPEAL

The Coast Guard raises the bases of appeal summarized below:

I. The AUerred in finding that insertion a/the instant test strip

invalidated the positive test results;

2 The plastic card is referred to predominantly within the 0&0 as an "instant lest strip" rather than an

"instant test card".

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HENSLEY

II.

III.

No. 2688

The ALJ erred in giving undue weight to Respondent's past

mariner history and subsequent test results;

The ALl's decision is against the overwhelming weight ofthe

evidence.

Given my detennination as to the first issue raised in this appeal, discussion ofthe

Coast Guard's second and third bases of appeal is neither necessary nor warranted.

Accordingly, those issues will not be addressed herein.3

OPINION

Under the governing standard ofreview on appeal, great deference is given to the

AU in evaluating and weighing the evidence. The AU's findings offact and

determinations in this regard will not be disturbed and will be upheld on appeal unless

they are clearly erroneous, arbitrary and capricious, or based on inherently incredible

evidence. See Appeal Decision 2541 (RAYMOND) (citing Appeal Decisions 2522

(JENKINS), 2492 (RATH), and 2333 (AYALA». The findings ofthe AU need not be

consistent with all evidentiary material in the record as long as there is sufficient material

in the record to support their justification. Appeal Decisions 2395 (LAMBERT) and

2282 (LITTLEFIELD).

L

The ALJ erred in finding that insertion o/the instant test strip invalidated the positive test

results.

The Coast Guard contends that the AU erred in determining, as a matter oflaw,

that insertion of any object into the sample violates the integrity ofthe sample. [Appeal

Brief at 11] The Coast Guard asserts that this conclusion flies in the face ofthe parties'

3 The Coast Guard raised a fourth issue within its statement of the issues in its appeal brief but failed to

address it within the body of the brief. Therefore, I did not consider that issue.

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HENSLEY No 26 e 8

stipulation that instant test strips in this case are sterile, individually wrapped, and have

no history of contaminating urine samples. [Id.]

A review afpast Commandant Decisions on Appeal shows that the primary issue

presented in this case - whether insertion of a sterile object into a urine sample violates

the specimen's integrity to such an extent that the drug test must be cancelled - is one of

first impression. Prior Commandant Decisions on Appeal have stated that "[i]n the

interest ofjustice and the integrity ofthe entire drug testing system, it is important that

the procedures outlined in 49 C.F.R. Part 40...[be]...followed to maintain the [drug

testing] system." See Appeal Decision 2631 (SENGEL) (unqualified collector without

required training failed to positively identify each crewmember providing a sample,

failed to collect social security numbers, improperly required crew members to certify

samples before they were provided and then stated that it was his signature on a

memorandum from the laboratory that attempted to correct the missing infonnation on

the Drug Testing Custody and Control Form (hereinafter "DTCCF") when it was clear

that it was not), citing Appeal Decisions 2621 (PERIMAN) (Respondent developed

evidence primarily after the hearing of violations ofthe testing laboratory's procedures

indentified by National Laboratory Certification Program, false testimony by lab's

director as to his credentials, misinfonnation about right to retest his split sample, and

premature disposal ofsample precluding further testing), and 2614 (WALLENSTEIN)

(significant unresolved conflicting testimony as to whether collector's actions violated

chain of custody when he left improperly labeled specimens unattended after leaving to

pursue employee who had failed to sign DTCCF, and when unable to catch him asked

others to forge the absent employee's signature). However, minor technical infractions of

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HENSLEY No. 2688

the regulations do not violate due process unless the infraction breaches the chain of

custody or violates the specimen's integrity. See Appeal Decisions 2575 (WILLIAMS)

(collector's failure to prevent other individuals from entering the restroom during

collection and lack of continued physical possession ofthe DTCCF were minor technical

violations ofdrug testing regulations), 2546 (SWEENEY) (collector's failure to have

Respondent initial specimen label and failure to allow Respondent to choose his

specimen jar were minor technical violations ofdrug testing regulations) ajJ'd sub nom

NTSB Order No. EM-176 (1994), 2541 (RAYMOND) (Respondent's failure to wash his

hands prior to providing urine sample, the collector's failure to allow Respondent to

choose his specimen jar, and the collector's failure to record the specimen temperature

were minor technical violations ofdrug testing regulations) afJ'd sub nom NTSB Order

No. EM-175 (1994), 2537 (CHATHAM) (absence of infonnation on DTCCF was minor

technical violation of drug testing regulations), and 2522 (JENKINS) (Respondent's

failure to wash hands prior to providing urine sample was minor technical violation of

drug testing regulations); Cf Gallagher v. National Transportation Safety Bd., 953 F.2d

1214 (10th Cir. 1992) (holding that where there was no evidence that the integrity of a

blood sample was actually compromised by a procedural error that occurred during

sample collection, results derived from the sample could properly be relied upon to

support the revocation of apilot's ainnan certificate).

Prior to detennining whether the ALl erred in finding that the integrity ofthe

specimen was violated, it is first necessary to detennine whether a violation ofthe DOT

drug testing regulations occurred. 49 C.F.R. §§ 40.65 and 40.71 (b) outline the step by

step items to be checked and procedures to be followed by the collector after the

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HENSLEY No.2688

employee submits the specimen. These procedures do not include the insertion of any

object, including a sterile instant test strip, into the specimen. See 49 C.F.R. §§ 40.65 and

40.71(b) (§ 40.65(b) requires the temperature ofthe specimen be taken, whicb is done by

using a test strip located on the outside ofthe collection container). There are provisions

within 49 C.F.R. § 40. 13(d) and 40.71(b)(8) that anow for additional testing of excess

urine remaining within the collection container after the urine is poured into the split

sample specimen bottles. ifthe test is part ofa required DOT physical examination. In

this instance the instant test strip was inserted into the collection container prior to the

urine being poured into the split specimen bottles. [D&O at 4; Tr. at 136] Therefore, the

AU was correct in detennining that a violation afthe DOT drug testing regulations

occurred.

The issue then becomes whether these actions violated the integrity ofthe chain

of custody or the integrity ofthe specimen. The AU concluded that the insertion ofthe

instant test, which the parties stipulated was sterile, into the urine specimen prior to

splitting the sample constituted a violation ofthe integrity ofthe sample. [D&O at 14]

While there is no doubt that the insertion violated the testing procedures, there is no

evidence in the record to support the AU's conclusion that the insertion actually violated

the integrity ofthe specimen. The record is devoid of any hint or assertion that the

insertion ofthe sterile strip caused the specimen to test positive for marijuana

metabolites. Rather, the record shows not only that the parties to this action stipulated

that the instant test was sterile, but also that the instant test, itself, has not been shown to

contaminate urine specimens with marijuana metabolites. [D&O at 5,14; Tr. at 122-124;

Coast Guard Exhibits 6 & 7] Accordingly, the technical violation that occurred in this

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HENSLEY No. 2688

case was hannless because there is no evidence to suggest that the integrity of

Respondent's urine specimen or the chain of custody was adversely affected by the use of

the instant test. Therefore, the AU's finding that the insertion of a sterile instant test

strip constitutes a violation ofthe integrity ofthe specimen is without evidentiary support

and carmal stand.

Although the collector's violation ofthe DOT drug testing regulations in this

instance was hannless, this decision should not be read to encourage either the violation

ofthe regulations contained in 49 C.F.R. Part 40 or that insertion of objects into urine

specimens is encouraged. It is not. Rather, this decision is limited to instances where the

impact afthe insertion could not have caused a positive result. In the case at hand, the

parties clearly stipulated that the strip was sterile and could not have caused a positive

result.

CONCLUSION

The AU erred in holding that the integrity ofRespondent's urine sample was

compromised by the insertion ofthe sterile, instant test into Respondent's urine.

Therefore, the Coast Guard's appeal is granted. Pursuant to 33 C.F.R. § 20.1004, on

appeal, the decision ofthe AU may be affinned, modified, reversed, or remanded for

further proceedings. Given this authority and in consideration ofthe AU's legal errors,

this case is being remanded. The AU should detennine whether, in light of the fact that

Respondent's urine sample was not compromised by the insertion ofthe instant drug test,

the outcome ofthis case should be altered. While the AU may hold further proceedings

to assist in this detennination, ifhe finds that the relevant issues have sufficiently been

developed in the record, he may detennine those issues absent further proceedings.

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HENSLEY

ORDER

No. 2688

The order ofthe Administrative Law Judge dated August 14,2008, is

VACATED. The case is REMANDED for further proceedings consistent with this

decision.

.hJJui~-&~ / :;y{ka-o'HAM

Vice AdlIlral. U. S. Coast Qard

Signed at Washington. D.C. this11:.- day of~_--'.2010.

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