UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD ) 

vs. 

LISA POLE, 

Respondent. 

) Docket No. CG S&R 01 0003 

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DECISION AND ORDER ON COAST GUARD'S 

MOTION FOR SUMMARY DECISION 

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The Coast Guard has filed a Motion for Revocation Order stating that the 

Respondent has failed to specifically deny any of the allegations in the complaint and 

therefore under 33 CFR § 20.308(c) the allegations are deemed admitted. I have treated 

the motion as one for summary decision under 33 CFR § 20.901. 

Under the summary decision rule a party is entitled to a judgment as a matter of 

law where there is no genuine issue of material fact. The motion is ordinarily supported 

by affidavits and citations to record evidence including the pleadings which show that 

there is no genuine issue of material fact. The motion may not be filed later than fifteen 

days prior to trial. Trial in this matter was set for AprillO, 2001. The Coast Guard's 

motion was filed on January 23, 2001 and is therefore timely filed. 

The test for determining whether a motion for summary decision is to be granted 

i;;; based on the filed documents, the material obtained from discovery, or matters 

officially noticed showing there is no genuine issue of material fact and the moving party 

is entitled to a summary decision as a matter oflaw. 33 CFR § 20.90l(b). 

In this case the sole evidence is the presumption created by rule that the failure to 

specifically deny an allegation it is deemed admitted. See 33 CFR § 20.308(c) 

[ Ans,wers]. Here Respondent has filed an answer but has not specifically denied any 

allegation in the complaint. Thus, it is claimed the Respondent has admitted to the 

alleged violations, which if true, entitle the Coast Guard to a judgment as a matter oflaw. 

When determining whether the moving party has proven the absence of a genuine 

material issue of fact, the facts asserted by the nonmoving party, if supported by 

evidentiary material, such as the answer to the complaint, the facts must be regarded as 

true. See Scott v. Plante, 532 F.2d 939 (3d Cir. 1976). 

Decision and Order on Coast Guard's 

Motion for Summary Decision - 1 

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Respondent was served with this motion, and has failed to respond. 

The following was alleged in the Coast Guard's complaint and are deemed 

admitted and true for the purposes of this motion. 

Respondent is the holder of a Coast Guard issued credential or Merchant Mariner 

Document Number 358-68-0753. Respondent took a random drug test on June 1, 2000. 

An authorized collector of the Columbia Medical Center collected a urine specimen. 

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

specimen was collected an analyzed by Quest Diagnostics using procedures approved by 

the Department of Transportation. The specimen subsequently tested positive for cocaine 

metabolites. 

Jurisdiction is established in this matter by reason of Respondent's licensure and 

deemed admission of jurisdiction. See, 46 U.S.C. §7704(c); NTSB Order No. EM-31 

(STUART); Commandant Appeal Decision, No. 2135 (Fossani). 

For some time now, the Coast Guard has brought cases charging use of a 

dangerous drug under 46 USC § 7704[ c] based solely upon the results of chemical testing 

by urinalysis. 46 CFR § 16.201 [b] provides that one who fails a chemical test for drugs 

under that part will be presumed to be a user of dangerous drugs. In turn, 46 CFR § 

16.105 defines "fail a chemical test for dangerous drugs" to mean that a Medical Review 

Officer reports as "positive" the results of a chemical test conducted under 49 CFR § 40. 

In other words, 46 CFR § 16 establishes a regulatory presumption on which the Coast 

Guard may rely, provided the Coast Guard can satisfactorily show that a 49 CFR § 40 

chemical test of a merchant mariner's sample or specimen was reported positive by a 

MRO. This presum:n~t~~ however, does not dispense with the obligation to establish the 

presumption by the saii1e standard of proof, i.e., the elements of the case must be proven 

by a preponderance of the evidence. The elements of a case of presumptive use are as 

follows: 

First, the Respondent was the person who was tested for dangerous drugs. 

Second, the Respondent failed the test. Third, the test was conducted in accordance with 

46 CFR Part 16. Proof of these three elements establishes a prima facie case of use of a 

dangerous drug (i.e., presumption of drug use) which then shifts the burden of going 

forward with the evidence to the Respondent to rebut the presumption. If the rebuttal 

fails then this Judge may find the charge proved solely on the basis of the presumption. 

See, Commandant Decision on Appeal2592 (Mason) 2584 (Shakespeare); 2560 

(Clifton). 

The Coast Guard's complaint has alleged each of the three elements necessary to 

show as a matter of law a prima facie case of use of a dangerous drug. The burden was 

shifted to Respondent who has failed to respond to this motion. 

Based solely on these proofs the Coast Guard is entitled to a judgment as a matter 

oflaw. 

Decision and Order on Coast Guard's 

Motion for Summary Decision - 2 
46 USC § 7704 [ c] provides if it is shown that a holder of a merchant mariners 

document has been a user of a dangerous drug, the merchant mariner's document of the 

holder shall be revoked. This judge has no discretion in the matter. 

IT IS THEREFORE ORDERED, the Merchant Mariner Document 358-68-0753 is 

hereby REVOKED. 

DATED: February 5, 2001. 

EDWIN M. BLADEN 

Administrative Law Judge 

Certificate of Service 

I hereby certify that I have this day delivered foregoing Order upon the following 

parties and limited participants (or designated representatives) in this proceeding, at the 

address indicated as follows: 

Marine Safety Office, Chicago 

Attn: CW02 Brian K. McCaul 

Telefax: 630-986-212,0 .. 

Lisa Pole 

11301 Avenue L 

Chicago, IL 6061 7 

(First Class Mail) 

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ALJ Docketing Center 

(Federal Express- Government Overnight w/Activity Report) 

Dated at Seattle, WA this 5th day ofFebruary, 2001. 

Decision and Order on Coast Guard's 

Motion for Summary Decision - 3 

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~t~;;~FEERST Legal Assistant to 

Administrative Law Judge