UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECRUITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD, 

Complainant 

vs. 

CHRISTOPHER LEE SAMUEL, 

Respondent 

Docket Number CG S&R 03-0285 

CG Case No. 113956 

DECISION AND ORDER 

Issued: September 22, 2003 

Issued by: Joseph N. lngolia, Chief Administrative Law Judge 

Appearances: 

LTJG Scott Baranowski 

and 

LCDR Mark Hammond 

U.S. Coast Guard Activities Baltimore 

2401 Hawkins Point Road 

Baltimore, MD 21226-1791 

For the Coast Guard 

Christopher Lee Samuel, (prose) 

For the Respondent 
PRELIMINARY STATEMENT 

The United States Coast Guard (Coast Guard) initiated this suspension 

and revocation proceeding against Respondent, Christopher Lee Samuel's 

Merchant Mariner's Document (MMD). This case is brought pursuant to the legal 

authority contained in Title 46 of the United States Code (U.S. C.) section 7703 

and underlying regulations. 

Respondent was charged with Misconduct on April 28, 2003 pursuant to 

Title 46 of the Code of Federal Regulations (CFR) section 5.27. The Coast 

Guard sought to revoke Respondent's MMD. The Coast Guard alleged that on 

March 10, 2003, Respondent took a pre-employment drug test forK-Sea Marine 

Transportation and wrongfully substituted his urine sample, resulting in a refusal 

to test. Respondent answered the Coast Guard's allegations by denying that he 

refused to submit a urine sample for pre-employment drug testing. 

The hearing was held on August 4, 2003 in Baltimore, Maryland. The 

hearing was conducted in accordance with the Administrative Procedure Act as 

amended and codified in 5 U.S.C. 551-559, and Coast Guard procedural 

regulations codified at 33 CFR Part 20. 

After opening statements, the Coast Guard presented telephonic 

testimony of 4 witnesses and entered five exhibits into the· record. Respondent 

testified on his own behalf and entered three exhibits into the record. The 

witness and exhibit list is provided in Attachment A. 

At the conclusion of the trial, I recommended that Respondent contact the 

Coast Guard to discuss the possibility of a settlement. He did so and on 

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Monday, August 25, the 10 informed the ALJ Docketing Center that the parties 

could not agree on settlement. Respondent filed a letter on August 28 confirming 

that there was no settlement. Respondent explained that he was not going to go 

through drug rehabilitation because he did not have a drug problem. Given the 

above, the case is ready for decision and order. 

FINDINGS OF FACT 

1. Respondent, Christopher Lee Samuel, is the holder of a Merchant 

Mariner's Document issued by the United States Coast Guard. 

2. On the morning of March 1 0, 2003, Respondent appeared at K-Sea 

Marine Transportation for a pre-employment drug test. (/0 Ex. 1). 

3. Respondent's urine specimen was collected by George Wilson. (/0 

Ex. 1). 

4. Mr. Wilson has been a trained collector since December 2002. 

5. Prior to Respondent's arrival, Mr. Wilson prepared the collection site 

for drug testing. However, since all marine employees needed access 

to the bathroom, Mr. Wilson failed to turn off the water source in the 

bathroom and failed to add blue dye to the toilet water. 

6. Upon his arrival for drug testing, Mr. Wilson positively identified 

Respondent through a photo ID, requested Respondent's Social 

Security Number (SSN), recorded Respondent's SSN on the 

Department of Transportation Custody and Control Form (CCF), and 

completed step 1 of the CCF. (10 Ex. 1). 

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7. Since a split specimen drug test was being performed, Mr. Wilson 

provided Respondent with a collection kit consisting of a large 

collection container and two small specimen bottles. 

8. Respondent went into the bathroom and returned the filled collection 

container to Mr. Wilson. 

9. Mr. Wilson also asked Respondent for the reading on the temperature 

strip attached to the collection container. The temperature was 

recorded as being between goo and 100° F on Step 2 of the CCF. (/0 

Ex. 1). 

10. Respondent's urine specimen was poured into the two small specimen 

bottles and the bottles were sealed in Respondent's presence with a 

tamper-evident seal bearing Specimen Identification Number 

(Specimen ID No.) 4279557. Respondent then initialed the tamperevident seal and completed step 5 of the CCF, certifying that he had 

provided the urine specimen identified by the Specimen ID No. 

4279557. He also certified that the information on the CCF and the 

labels affixed to each specimen bottle were correct. (!d). 

11. Mr. Wilson also executed the CCF certifying that Respondent provided 

the urine specimen, which was collected, labeled, and sealed in 

accordance with applicable Federal requirements. (/d). 

12. Mr. Wilson then placed Respondent's urine specimen in locked storage 

until it was released to a Quest Diagnostic Courier. 

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13. Quest Diagnostics (Quest) received Specimen ID No. 4279557, which 

was assigned a unique Lab Accession Number (Lab Accession No.) 

6587381. Melissa Lewis signed for the specimen and recorded the 

information on the Quest internal chain of custody form. (/0 Ex. 3). 

14. The sample was then released to Robin Weikel and the initial drug test 

was performed and analyzed by Brian Estelle. (/0 Ex. 3, p 12). 

15. The results of the initial drug test revealed a specific gravity level of 

1.000 and a creatinine level of 0.2. (10 Ex. 3, p 17). 

16. As a result of the initial test levels a confirmation test was performed to 

corroborate the initial results. The results of that test were a specific 

gravity level of 1.000 and a creatinine level of 0.1. The Laboratory 

reported that the urine specimen was substituted in accordance with 

49 CFR 40.93(b). (/0 Ex. 3). 

17. The urine specimen, with Specimen ID No. 4279557, was then placed 

in long-term storage. 

18. A Medical Review Officer (MRO), Dr. Katsuyama, reviewed the results 

and verified that Respondent's urine specimen, identified by Specimen 

ID No. 4279557, was not consistent with human urine and classified it 

as a substituted specimen. (/0 Ex. 1). 

19. The MRO interviewed Respondent to determine whether there was a 

medical explanation for the test results. 

20. The Respondent failed to provide a medical explanation for the test 

results. 

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21. The MRO advised the United States Coast Guard that Respondent's 

pre-employment drug test revealed that his urine was substituted. (10 

Ex. 5). 

ULTIMATE FINDINGS OF FACT 

1. Respondent Christopher Lee Samuel and the subject matter of this 

hearing are within the jurisdiction vested in the United States Coast 

Guard under 46 USC 7703. 

2. Respondent, at all relevant times, was acting under the authority of his 

Merchant Mariner's Document. 

3. Respondent's pre-employment drug test was performed properly in 

accordance with 46 CFR Part 16 and 49 CFR Part 40. 

4. The United States Coast Guard has PROVED by a preponderance of 

the evidence that Respondent has committed misconduct by 

wrongfully submitting a substituted urine specimen for pre-employment 

drug testing. 

DISCUSSION 

In suspension and revocation proceedings, the burden of proof is on 

the Coast Guard to establish the allegations in the complaint by a 

preponderance of the evidence .. See 33 CFR 20.701 and 20.702(a); see 

also Appeal Decision 2485 (YATES); Steadman v. Securities and Exchange 

Commission, 450 U.S. 91, 102 (1981) (adopting the preponderance of the 

evidence standard of proof in proceedings conducted under the 

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Administrative Procedures Act [5 U.S.C. 551-559]). To satisfy the burden of 

proof, the Coast Guard must establish that it is more likely than not that 

Respondent committed the alleged violations. See Herman & Maclean v. 

Huddleston, 459 U.S. 375, 390 (1983). 

In this case, Respondent is charged with MISCONDUCT. Misconduct 

is defined as any conduct or behavior that violates a duly established rule. 46 

CFR 5.27. The Coast alleged that Respondent committed Misconduct by 

submitting a substituted urine specimen for pre-employment drug testing. 

This constitutes a refusal to test, which is a violation of applicable Coast 

Guard and DOT drug testing regulations. See 49 CFR 40.191(c). 

Coast Guard regulations incorporate, by reference, the definition of 

"refused to take a .drug test" as set out in 49 CFR 40.191. See 46 CFR 

16.105. Under 49 CFR 40.191 (b), a mariner is considered to have "refused to 

take a drug test" if an MRO verifies that a substituted specimen was 

submitted for drug testing. A laboratory considers a specimen to be 

substituted "if the creatinine concentration is less than or equal to 5 mg/dl 

and the specific gravity is less than or equal to 1.0001 or greater than or 

equal to 1.020." 49 CFR 40.93(b ). A urine specimen is verified as substituted 

if, after conducting a verification interview, the mariner fails to provide the 

MRO with a legitimate medical explanation for the laboratory findings. See 49 

CFR 40.145. 

Here, Respondent submitted to a pre-employment drug test on March 

10, 2003 as required by K-Sea Marine Transportation in accordance with 46 

7 
CFR 16.210(a). Mr. George Wilson collected Respondent's urine specimen. 

(10 Ex. 1). The urine specimen was then forwarded to and tested by Quest in 

accordance with 46 CFR Part 16 and 49 CFR Part 40. The initial test results 

revealed a creatinine level of 0.2 mg/dL and a specific gravity of 1.000. (/0 

Ex. 3, p. 17). The confirmation test corroborated the initial test results and, in 

accordance with 49 CFR 40.93, the laboratory reported that Respondent's 

urine specimen was substituted. The MRO, Dr. Katsuyama, then verified the 

substituted test result after Respondent failed to provide a legitimate medical 

explanation for the laboratory findings. 

At the hearing, Respondent also failed to provide any legitimate 

explanation, medical or otherwise, for the test results. Instead, Respondent 

argued that several procedural errors occurred during the collection process: 

1) Mr. Wilson handed the collection kit to Respondent without explaining what 

should be done with the collection cup and two small vials; and 2) Mr. Wilson 

asked Respondent for the temperature reading on the collection cup. In 

addition, the facts show that Mr. Wilson failed to turn off the water source in 

the bathroom and failed to add blue dye to the toilet water. 

Minor procedural errors in the collection process that do not adversely 

effect the chain of custody of a specimen will not invalidate the laboratory's 

test results. See Appeal Decision 2555 (LAVALLAIS ); 49 CFR 209(b )( 1 ). An 

ALJ determines whether a procedural error is minor by evaluating the ultimate 

impact of the errors on the final result of the drug test. 49 CFR 40.209(a). 

Not adding blue dye to the toilet water is a minor procedural error that does 

8 
not establish grounds for invalidating the test results. 49 CFR 40.209(b)(2}. 

The purpose of adding the blue dye to the toilet water and turning off all water 

in the lavatory is to assist the collector in determining if the specimen has 

been tampered with. 1fh Similarly, the temperature of the specimen is used 

to help the collector determine if the specimen has been substituted. Thus, I 

conclude that the failure of the collector to personally read the temperature of 

the specimen is a minor procedural error. 

In this case, the procedural errors provided Respondent with ample 

opportunity to substitute the urine specimen. As stated earlier, the water 

source in the bathroom was not turned off and there was no blue dye in the 

toilet. Further, Mr. Wilson's failure to verify the temperature reading of the 

specimen gave Respondent an opportunity to mask that the specimen was 

substituted. 

Respondent also attempted to show that he was not a drug user by 

introducing prior drug free certificate cards into evidence. The Coast Guard is 

not alleging that Respondent is a user of drugs, Respondent is charged with 

misconduct stemming from a substituted urine specimen. The Respondent's 

prior history of drug testing does not serve as an adequate defense in a 

refusal to test case based on a submission of a substituted urine specimen for 

drug testing. However, Respondent's prior negative drug test results may be 

used by the ALJ for mitigation purposes in determining an appropriate 

sanction. See Appeal Decision 2625 (ROBERTSON). 

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Based on the facts in this case, I find that the Coast Guard has 

established by a preponderance of the evidence that Respondent submitted a 

substituted urine specimen for a pre-employment drug test on March 10, 

2003. This constitutes a refusal to test under 49 CFR 40.191 (b), which is 

Misconduct under 46 CFR 5.27. 

SANCTION 

The Coast Guard proposes an order of revocation of Respondent's 

MMD. The suggested sanctions for violation of regulations are set forth in the 

Table of Suggested Range of Appropriate orders in 46 CFR 5.569. The 

recommended sanction for a refusal to take a chemical drug test is 12 to 24 

months. However, the Commandaht has held that revocation in a refusal to 

test case may be an appropriate sanction after the ALJ considers the 

aggravating or mitigating circumstances of the case. See Appeals Decision 

2578 (CALLAHAN). The purpose of the suggested ranges of sanctions is to 

provide guidance and promote uniformity in ALJ rendered orders. 46 CFR 

5.569(d). 

In the present case, Respondent has no prior drug offenses and has 

tested negative in the past for drugs. Upon review of all the facts and 

testimony presented, I find an appropriate sanction is an outright 12- month 

suspension with an additional condition placed on Respondent. If it is 

determined in a future Suspension and Revocation proceeding that 

Respondent violated any Coast Guard drug testing regulations within the 

10 
above mentioned 12-month period, the Coast Guard may move to reopen this 

proceeding to request revocation. 

The period of suspension commenced on August 4, 2003. On that 

date, in accordance with 46 CFR 5.521, this Judge took possession of 

Respondent's MMD upon finding that Mr. Samuel committed an act or offense 

that constitutes a threat to public health, interest, and safety at sea. The 

MMD is being forwarded to the Coast Guard Activities Baltimore along with 

this decision and order. The MMD shall be returned to Mr. Samuel upon 

completion of 12-month period of suspension ending on August 4, 2004. 

ORDER 

WHEREFORE, 

IT IS HEREBY ORDERED that the Merchant Mariner's Document 

issued by the United States Coast Guard to Christopher Lee Samuel is 

SUSPENDED for a period of 12 months. If it is determined in a future 

Suspension and Revocation proceeding that Respondent violated Coast 

Guard drug testing regulations within the above mentioned 12-month period, 

the Coast Guard may move to reopen this proceeding to request revocation. 

The period of suspension commenced on August 4, 2003 and ends August 4, 

2004, at which time the MMD shall be returned to Mr. Samuel. 

PLEASE BE ADVISED, either party has a right to appeal this Decision 

and Order by filing a notice of appeal with the United States Coast Guard ALJ 

Docketing Center within 30 days of the issue date of this decision. All 

11 
appeals must be in accordance with the procedures set forth in 33 CFR 

20.1001-20.1003. 

Date this 23rd day of September, 2003 

Baltimore, Maryland 

12 
Certificate of Service 

I hereby certify that I have served the foregoing Decision and Order upon the following 

parties (or their designated representatives) to this proceeding at the address indicated by Federal 

Express: 

Lt(jg) Scott Baranowski 

United States Coast Guard Activities Baltimore 

2401 Hawkins Point Road 

Balt~more, MD 21226-1791 

Christopher Samuel 

708 College Lane, Apt. 5 

Salisbury, MD 21804 

Done and date this 23rd day of September 2003. 

~~~~_.;~~ GLADY,§ P ~ii'Ii-PAUL, ESQ. 

Attorney-Advisor to 

Chief Administrative Law Judge 

United States Coast Guard 
PROCEDURES GOVERNING APPELLATE REVIEW 

TITLE 33- NAVIGATION AND NAVIGABLE WATERS 

CODE OF FEDERAL REGULATIONS 

PART 20 RULES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR FORMAL 

ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD 

SUBPART J- APPEALS 

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 Sec. 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--

(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. 

2 
PROCEDURES GOVERNING COAST GUARD APPELLATE REVIEW 

TITLE 33 -NAVIGATION AND NAVIGABLE WATERS 

CODE OF FEDERAL REGULATIONS 

PART 20 RULES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR FORMAL 

ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD 

SUBPART J - APPEALS 

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 Sec. 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--

(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 pans 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 3 5 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 

ALI's decision. 

2