UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

MICHAEL MCDUFFIE 

Respondent. 

______________________________ Docket Number: CG S&R 04-0347 

CG Case No. 2097905

 

DECISION AND ORDER

Issued: February 10, 2005

Issued by: Peter A. Fitzpatrick, Administrative Law Judge

Appearances: 

For Complainant 

MST1 Ray S. Robertson 

LT John Catanzaro 

U.S. Coast Guard 

Marine Safety Office Mobile 

Building 102, Brookley Complex 

South Broad Street 

Mobile, AL 36615-1390 

For Respondent 

Michael McDuffie Appeared for Himself 

 
2

I. 

PRELIMINARY STATEMENT

 This case began on July 6, 2004 when the Coast Guard filed a Complaint against the 

Respondent, Michael McDuffie, under the statutory authority contained in 46 U.S.C. § 7704(c) 

and the Coast Guard regulation codified at 46 C.F.R. § 5.35. Mr. McDuffie is the holder of 

Coast Guard issued License Number 895027 authorizing him to serve as “. . .Master of Steam or 

Motor Vessels of not more than 100 gross registered tons (domestic tonnage) upon near coastal 

waters.” The Coast Guard alleged that Mr. McDuffie tested positive for Marijuana Metabolite 

on a pre-employment drug test administered on June 3, 2004. The Investigating Officer seeks 

the revocation of Mr. McDuffie’s Coast Guard license under 46 U.S.C. § 7704. 

 Respondent’s Answer was submitted on July 6, 2004 and he admitted all Jurisdictional 

and Factual Allegations except numbers five and six of the Factual Allegations. In this regard he 

denied: 

“5) Specimen tested positive 

 6) Dr. Brian Heinen M.D.verified the positive test.” 

On July 8, 2004 the case was assigned to this Judge. Thereafter, the Respondent filed a motion 

seeking a “continuance” of the hearing until January, 2005.1

 On August 13, 2004 the Scheduling 

Order was issued setting the case for hearing on September 28, 2004 at Daphne, Alabama. 

 Next, the Coast Guard moved to have two witnesses (Drs. Heinen and Green) testify by 

telephone (Motion dated August 19, 2004). On August 31, 2004 an Order granting that request 

and also granting Mr. McDuffie’s oral request for a continuance was entered. The hearing was 

rescheduled for December 2, 2004. On October 6, a pre-hearing conference was conducted to 

discuss procedural issues and to rule on various motions. The Investigating Officer and the 

 

1

 At that stage, the case had not yet been set for hearing. 
3

Respondent participated and an Order was issued setting out the matters discussed and the 

rulings made. See Order dated October 20, 2004. 

On October 2, 5, and November 3 and 4, the Respondent filed various motions seeking 

the production of documents, subpoenas, interrogatories, and to object to the telephonic 

testimony of Drs. Heinen and Green. On November 6, 2004, an Order granting some of the 

requests and denying others was issued. Subsequently, Mr. McDuffie filed three other motions 

to continue the proceeding but they were denied. (See Orders of November 8, 15, and 22, 2004). 

The hearing was held as previously rescheduled on December 2, 2004 at Daphne, 

Alabama. The Investigating Officers and the Respondent appeared. The Coast Guard sponsored 

four witnesses including: (a) the individual who collected Mr. McDuffie’s urine sample at 

Springhill Industrial Drug Testing (Ms. Tami Byrd); (b) Dr. David Green, Laboratory Director at 

Kroll Laboratory Specialists; (c) Dr. Brian Heinen, the Medical Review Officer; and (d) Mr. 

Terry Dickinson, General Manager, Graham Gulf, Inc. The Investigating Officer also offered 

eight exhibits which were admitted into evidence and are identified on Attachment B.2

 

 The Respondent testified and introduced nine exhibits at the hearing, eight of which were 

admitted. They are identified on Attachment B. Respondent (Resp.) Exhibit H was reserved 

pending further consideration. It is the drug test results from a test performed by American 

Toxicology Institute involving a hair sample from the Respondent. Under usual conditions the 

Department of Transportation rules governing chemical tests for dangerous drugs do not allow 

for the testing of hair. Since the record here does not reveal any impediment to Mr. McDuffie 

providing a urine sample, this exhibit will not be admitted. See Appeal Decision 2575 

(WILLIAMS). 

 

2

 Exhibit No. IO-7 was initially reserved but was admitted near the near the end of the hearing. See Transcript (TR) 

137. 
4

 At the conclusion of the hearing, I announced that the Investigating Officer proved the 

elements of the Complaint by the preponderance of the evidence and that Mr. McDuffie’s Coast 

Guard license was Revoked because he had been shown to be the user of dangerous drugs. 

II. 

STATUTES AND REGULATIONS INVOLVED

A. Procedural Matters 

1. This proceeding is governed by the Administrative Procedure Act , which is incorporated 

into these proceedings under 46 U.S.C. 7702, which reads: 

§ 7702. Administrative procedure

(a) Sections 551-559 of title 5 apply to each hearing under this chapter about 

suspending or revoking a license, certificate of registry, or merchant mariner's 

document. 

2. 46 U.S.C.§§ 7701-7705 set out the general procedures governing the suspension and 

revocation of merchant mariners' licenses and documents. 46 U.S.C. § 7704 provides in 

pertinent part: 

§ 7704. Dangerous drugs as grounds for revocation

(b) If it is shown that a holder has been a user of, or addicted to, a 

dangerous drug, the license, certificate of registry, or merchant 

mariner’s document shall be revoked unless the holder provides 

satisfactory proof that the holder is cured. 

3. The regulations governing the performance of chemical tests for dangerous drugs adopted 

by the United States Department of Transportation are codified at 49 C.F.R. § 40.3 Specifically, 

the specimen collection procedures are set out at 49 C.F.R. § 40, subpart E. 

 

3

 During the pendancy of this case, the U.S. Coast Guard transferred from the Department of Transportation to the 

Department of Homeland Security. Pursuant to the Savings Provision of HR 5005 Section 1512 (PL 107-296), 

pending proceedings are continued notwithstanding the transfer of the agency. The DOT drug testing regulations 

continue to govern the testing of mariners subject to the jurisdiction of the Coast Guard. 
5

4. The Coast Guard regulations governing chemical testing for dangerous drugs are codified 

at 46 C.F.R. § 16. As pertinent here, 46 C.F.R. § 16.201(b) provides that: 

Subpart B – Required Chemical Testing 

§ 16.201 Application. 

(c) If an individual fails a chemical test for dangerous drugs under this 

part, the individual will be presumed to be a user of dangerous drugs. 

5. When a chemical test for dangerous drugs is administered in compliance with the DOT 

regulations at 49 CFR § 40 and the mariner involved fails the test, the Coast Guard must be 

notified by the employer as follows: 

(c) If an individual holding a license, certificate of registry, or merchant mariner's 

document fails a chemical test for dangerous drugs, the individual's employer, 

prospective employer, or sponsoring organization must report the test results in 

writing to the nearest Coast Guard Officer in Charge, Marine Inspection (OCMI). 

The individual must be denied employment as a crewmember or must be removed 

from duties which directly affect the safe operation of the vessel as soon as 

practicable and is subject to suspension and revocation proceedings against his or 

her license, certificate of registry, or merchant mariner's document under 46 § part 

5. 

(46 CFR § 16.201(c)) 

6. Under the DOT regulations the employer must not require the mariner to sign a consent 

or release form as follows: 

No, as an employer, you must not require an employee to sign a consent, release, 

waiver of liability, or indemnification agreement with respect to any part of the 

drug or alcohol testing process covered by this part (including, but not limited to, 

collections, laboratory testing, MRO and SAP services). 

(49 CFR § 40.27) 

7. The General Confidentiality Rule for Drug and Alcohol Test Information reads as follows: 

Except as otherwise provided in this subpart, as a service agent or employer 

participating in the DOT drug or alcohol testing process, you are prohibited from 

releasing individual test results or medical information about an employee to third 

parties without the employee's specific written consent. 

(49 CFR § 40.321) 
6

8. The definitions section of the DOT drug testing rules defines a “third party” as follows: 

(a) A “third party” is any person or organization to whom other subparts of this 

regulation do not explicitly authorize or require the transmission of information in 

the course of the drug or alcohol testing process. 

(49 CFR § 40.321(a)) 

9. The Coast Guard Rules of Practice which apply to this proceeding are codified at 33 

C.F.R. § 20. 

III. 

FINDINGS OF FACT

A. Jurisdictional Allegations Admitted by the Respondent in the Answer

1. The Respondent’s address is [Redacted] and the telephone number is [Redacted]. 

2. Respondent holds license number 895027. 

B. Factual Allegations Admitted by the Respondent in the Answer

“The Coast Guard alleges that: 

1. On June 3, 2004, Respondent took a Pre-Employment drug test. 

2. A urine specimen was collected by Tammy Byrd of Springhill Industrial Drug 

Testing. 

3. The Respondent signed a Federal Drug Testing Custody and Control Form. 

4. The urine specimen was collected and analyzed by Kroll LSI using procedures 

approved by the Department of Homeland Security.” 

C. Factual Allegations Not Admitted by the Respondent in the Answer

5. “That specimen subsequently tested positive for Marijuana Metabolites. 

6. That MRO Dr. Brian Heinen M.D. verified the positive test for 

Marijuana Metabolites.”
7

D. Other Facts

1. Ms. Tami Byrd collected Mr. McDuffie’s urine sample at Springhill Industrial Drug 

Testing, Mobile, Alabama on June 3, 2004. She is an experienced, certified specimen collector 

familiar with the DOT rules governing such collections. (TR 16-17). She has administered 

“well over 100” collections. (TR 18). She identified the Respondent by reference to his driver’s 

license. (TR 19-20) She also entered Mr. McDuffie’s Social Security number on the Federal 

Drug Testing Custody and Control Form. (TR 22) She checked the DTCC form noting that 

McDuffie’s temperature was within acceptable range. (TR 21). The specimen which was split 

into two bottles remained in her presence until it was sealed and labeled. (TR 21-22). Next she 

made the following certification on the form: 

“I certify that the specimen given to me by the donor identified in 

the certification section on Copy 2 of this form was collected, 

labeled, sealed and released to the Delivery Service noted in 

accordance with applicable Federal requirements.” (Id.). 

(TR 22-23, IO Exhibit 1). 

2. Mr. McDuffie too signed the DTCC form and also made the following certification: 

“I certify that I provided my urine specimen to the collector; that I 

have not adulterated it in any manner; each specimen bottle used 

was sealed with a tamper-evident seal in my presence; and that the 

information provided on this form and on the label affixed to each 

specimen bottle is correct.” (Id.). 

3. The specimen bottles were transported by Airborne Express to Kroll Laboratory 

Specialists, Gretna, LA where they were received the next day on June 4, 2004. (IO Exhibit 3). 

There the seals on the specimen bottles were examined and were found to be intact. (TR 38) 

The specimen bottles were given a unique laboratory accession number and an aliquot was taken 

for the initial screening test. (Id.) That test revealed the Respondent’s sample contained 79 
8

ng/ml of THC. (TR 40). The DOT screening cutoff concentration for THC is 50 ng/ml. (IO 

Exhibit 4, Section VI; TR 44-46). 

4. A confirmatory test was conducted next on a separate aliquot taken from the same 

specimen. This test was conducted by GC/MS. The results revealed the presence of a marijuana 

metabolite in the concentration of 37 ng/ml. (IO Exhibit 3, Section G; TR 60, 67). The DOT 

allowable threshold limit is 15 ng/ml. (IO Exhibit 3; Section VI; TR 51). 

5. Before the test results were released to the Medical Review Officer, the Laboratory’s 

Certifying Scientist, David Drewek, reviewed all the data involved and signed the Drug Test 

Report confirming the test results. (IO Exhibit 5). 

6. Dr. Brian Heinen is the Medical Review Officer (MRO) who reviewed Mr. McDuffie’s 

test. He compared the copy of the DTCC form he had received from the collection site and the 

one from the laboratory. The doctor found no procedural errors. (TR 82). Next, he telephoned 

Mr. McDuffie on June 7, 2004 and discussed the positive test result with him. Dr. Heinen 

concluded that there was no justifiable medical explanation for the presence of marijuana 

metabolite in the mariner’s system. On June 7, 2004 the doctor concluded that the drug test 

results were POSITIVE FOR THC. (IO Exhibit 6; TR 83). The doctor signed the DTCC form 

and sent his report to Graham Gulf, the employer who ordered this pre-employment drug test. 

(TR 83-85). 

7. Mr. Dickinson Graham Gulf’s General Manager, reported the positive drug test results to 

the Coast Guard Marine Safety Office at Mobile, Alabama on June 8, 2004. (TR 97). The 

Complaint in this case was filed the following month on July 6, 2004. 
9

IV. 

OPINION 

A. General.

1. The Coast Guard has jurisdiction over Respondent and this matter pursuant to 46 U.S.C. 

7704, which states that “if it is shown that a holder has been a user of, or addicted to, a 

dangerous drug, the license, certificate of registry, or merchant mariner's document shall be 

revoked unless the holder provides satisfactory proof that the holder is cured.” The Coast Guard 

has the burden of proving the allegations of the Complaint by a preponderance of the evidence. 

33 C.F.R. § 20.701. See also Appeal Decision No. 2603 (HACKSTAFF); Dept. of Labor v. 

Greenwich Colleries, 512 U.S. 267 (1994); Steadman v. SEC, 450 U.S. 91, 100-103 (1981). It is 

now well established that the Investigating Officer must prove three elements to meet this burden 

in a case involving the use of a dangerous drug where a chemical drug test is conducted. As set 

out in Appeal Decision 2583 (WRIGHT) (p. 4) they are: 

To meet this burden, as applied to the specification at hand, the 

Investigating Officer must prove three elements: 1) that the respondent 

was the individual that was tested for dangerous drugs; 2) that the 

respondent failed the test; and 3) that the test was conducted in accordance 

with 46 C.F.R Part 16. Appeal Decisions 2379 (DRUM), 2279 (LEWIS). 

See also Appeal Decision Nos. 2584 (SHAKESPEARE); 2632 (WHITE); and 2637 

(TURBEVILLE). 

2. The first witness to testify at the hearing was Ms. Tami Byrd. She is the individual who 

collected Mr. McDuffie’s specimen and is an experienced, certified specimen collector. (TR 16). 

She is familiar with the DOT guidelines governing the collection procedures and described how 

she conducted the collection. First, she identified the Respondent by reviewing his driver’s 

license and wrote his social security number on the custody form. (TR 19-20). Once he 

provided the urine specimen she checked the temperature to assure it was within the acceptable 
10

range, split the sample into two vials, and sealed and labeled both in McDuffie’s presence. (TR 

21-22). Then, the Mr. McDuffie signed the custody form certifying that the specimen was his, 

that it was sealed in his presence, and that the information on the labels was correct. (TR 22-23). 

Next, Ms. Byrd too signed the DTCCF certifying that the specimen was collected, labeled, sealed 

and released to the delivery service in accord with Federal requirements. (TR 23). 

Subsequently, the specimen bottles were picked up by Airborne Express and delivered to the 

drug testing laboratory the next day. 

Reviewing this testimony and Exhibits IO-1, 2, and 5 (the copies of the Federal Drug 

Testing Custody and Control Form involved here) I find that this evidence supports the 

conclusion that the specimen collected was provided by Mr. McDuffie and that it was collected 

and handled in compliance with the DOT regulations codified at 49 CFR § 40. 

3. Dr. David Green, Laboratory Director of Kroll Laboratory Specialists testified regarding 

the drug testing procedures followed by Kroll. The specimen bottles were examined upon receipt 

on June 4, 2004 and photographed to show the seals were intact and not broken. (Exhibit IO3(B); TR 34-35). The laboratory applied a so-called “accession number” (8193541) to the 

bottles and that number identified Mr. McDuffie’s specimen throughout the testing process. (TR 

34-36). 

Once the laboratory personnel were satisfied that the specimen was acceptable for testing, 

a portion (aliquot) was poured into a test tube and inserted into the initial screening instrument. 

(TR 39-41). This specimen tested positive with a reading of 79 ng/ml. (TR 40). The cutoff 

level on this initial screening test is 50 ng/ml. (TR 40, 45-46, 51). Next, another aliquot was 

poured from the original sample and a second test was conducted to confirm and qualify the drug 

in question. (TR 50). 
11

This GC/MS test identifies the components of various drugs by a separation technique 

and determines the amounts of those unique characteristics. The confirmation test looks at only 

a small fraction of the total pool of marijuana products and the cutoff level is lower. (TR 51). 

The DOT established cutoff level on this test was 15 ng/ml. (IO Exhibit 3, Section VI; TR 51). 

The Respondent’s specimen tested at 37 ng/ml. (TR 51, 61). This result too was positive for 

marijuana metabolite. (TR 61, 63). That determination was verified by the Certifying Scientist 

(Drewek) on the FDTCCF on June 7, 2004. (IO Exhibit 2). 

Dr. Green’s testimony is supported by the laboratory’s litigation package which includes 

the detailed documentation associated with the testing of Mr. McDuffie’s urine sample. Dr. 

Green testified that Mr. McDuffie’s specimen was tested in accord with the DOT drug testing 

regulations and that he did not doubt the integrity and accuracy of the test. (TR 62-63). He is a 

very credible witness. Accordingly, I find that the test results reached by Kroll Laboratory 

Specialists in the testing of Mr. McDuffie’s urine specimen are accurate and valid. 

4. Doctor Heinen, a Board Certified Medical Review Officer, was the physician who 

reviewed the test results in this case. He received the laboratory report of the positive test results 

and compared that document to the separate MRO DTCC form copy. (IO Exhibit 5; TR 82). 

Then he interviewed Mr. McDuffie by telephone on June 7, 2004 and discussed the results with 

the Respondent. (TR 82-83). At the end of that session the Doctor concluded that the mariner 

did not have any credible explanation for the positive result. (TR 82-83). Accordingly, he 

signed the DTCC form verifying that the test results were positive. (IO Exhibit 4). 

On that same day Dr. Heinen sent his report of the positive drug test results to Graham 

Gulf. (IO Exhibit 6). That company was seeking to hire McDuffie and had directed the mariner 

to undergo this pre-employment drug test. (TR 102). 
12

I conclude that Dr. Heinen is a credible witness and he properly performed his duties as 

Medical Review Officer under the DOT drug testing regulations. 

In sum, therefore Mr. McDuffie’s urine sample was properly tested as required by the 

applicable Federal requirements. He has been found to be the user of a dangerous drug 

(marijuana) and his license must be revoked in accordance with 46 USC § 7704. 

B. The Confidentiality Issue.

Mr. McDuffie challenged the drug test here on the basis that the test results were 

confidential and that Dr. Heinen and his potential employer (Graham Gulf) were not authorized 

by him to notify the Coast Guard. That defense is not valid. Coast Guard regulations require the 

company ordering a drug test for a potential marine employee to notify the Coast Guard where 

the individual tests positive for drug use. See 46 CFR § 16.201(c); TR 100-101. That regulation 

is set out infra at page 5. Moreover, the rule regarding the confidentiality of drug test results 

prohibits an employer from releasing individual test results to third parties without the 

employee’s specific written consent. (49 CFR § 40.321). The term third party however is 

defined in the regulations as any person or organization with whom other parts of the regulations 

do not explicitly authorize or require the transmission of information in the course of the drug 

testing process. (49 CFR § 40.321(a)). Since the regulations specifically require the employer to 

notify the Coast Guard if a mariner tests positive on a drug test, the Coast Guard is not a “third 

party” within the meaning of the confidentiality rule above. 
13

V. 

ORDER

For all of the foregoing reasons, IT IS ORDERED THAT License Number 895027 

issued by the United States Coast Guard to Michael McDuffie is HEREBY REVOKED.

PLEASE TAKE NOTICE that service of this Decision on the parties and/or parties’ 

representative(s) serves as notice of appeal rights set forth in 33 CFR §§ 20.1001 – 20.1004. 

(Attachment A). 

________________________________________ 

PETER A. FITZPATRICK 

ADMINISTRATIVE LAW JUDGE 

U.S. COAST GUARD 

Done and dated February , 2005. 

Norfolk, Virginia
14

ATTACHMENT A

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 -- 
15

(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. 
16

ATTACHMENT B

WITNESS AND EXHIBIT LISTS

WITNESS LIST 

COMPLAINANT’S WITNESSES 

1. Tami Byrd 

2. David Green, MD 

3. Brian Nicholas Heinen, MD 

4. Terry Michael Dickinson 

RESPONDENT’S WITNESSES 

1. Michael McDuffie 

EXHIBIT LIST 

COMPLAINANT’S EXHIBITS 

IO Exhibit 1 - Collection Agency chain of custody form 

IO Exhibit 2 – Laboratory chain of custody form 

IO Exhibit 3 – Kroll litigation package 

IO Exhibit 4 – Medical Review Officer copy of FDTCC 

IO Exhibit 5 – Kroll Drug Test Report dated June 7, 2004 

IO Exhibit 6 – Heinen Medical Review Officer’s verification report 

IO Exhibit 7 – Graham Gulf Inc. letter dated June 8, 2004 

IO Exhibit 8 – McDuffie’s Application to renew Coast Guard issued License dated October 24, 

2000 

RESPONDENT’S EXHIBITS 

Resp. Exhibit A – SECON letter dated August 21, 2002 

Resp. Exhibit B – Drug test dated October 1, 2003 

Resp. Exhibit C – Drug test dated October 6, 2003 

Resp. Exhibit D – Advanced Toxicology Network drug test dated October 6, 2003 

Resp. Exhibit E – Advanced Toxicology Network drug test dated February 11, 2004 

Resp. Exhibit F – Advanced Toxicology Network drug test dated February 11, 2004 

Resp. Exhibit G – Kroll Federal Drug Testing Custody and Control Form dated June 3, 2004 

Resp. Exhibit H – not admitted 

Resp. Exhibit I – INVIMED Inc. drug test dated August 2, 2004