UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_______________________________

UNITED STATES COAST GUARD

Complainant

vs.

HARRY JAMES MORGAN

Respondent

______________________________

Docket Number 2022-0283

Enforcement Activity No. 7480281

DECISION AND ORDER

Issued: April 17, 2024

By Administrative Law Judge: Honorable Brian J. Curley

Appearances

For the Coast Guard:

JENNIFER A. MEHAFFEY, ESQ.

Suspension & Revocation National Center of Expertise

ANDREW S. MYERS, ESQ.

Suspension & Revocation National Center of Expertise

MR. RICHARD WELLS

Sector New Orleans

LT. NIKOLAY MARKOV

Sector Virginia

For Respondent:

W. BRETT MASON, ESQ.
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I. PROCEDURAL HISTORY

The United States Coast Guard (Coast Guard) initiated this administrative action by filing 

a Complaint on July 12, 2022, against Harry James Morgan (Respondent), seeking to revoke his

Merchant Mariner Credential (MMC). The Complaint alleges Respondent is a user of, or 

addicted to, dangerous drugs, as prohibited by 46 U.S.C. § 7704(b) and 46 C.F.R. § 5.35. 

Specifically, the Coast Guard alleges Respondent took a random drug test on April 20, 2022, that

yielded a positive result for methamphetamine. Respondent filed an Answer on August 12, 

2022, denying the jurisdictional and factual allegations of the Complaint.

The hearing commenced in New Orleans, Louisiana, on February 7 and 8, 2023. At the 

hearing, Attorney Jennifer A. Mehaffey and Investigating Officer Lt. Nikolay Markov 

represented the Coast Guard, and Attorney W. Brett Mason represented Respondent. The Coast 

Guard introduced 19 exhibits into evidence, all of which were admitted. Respondent offered 

seven exhibits into evidence, all of which were admitted. On April 28, 2023, the Coast Guard 

submitted its post-hearing brief, and on May 31, 2023, Respondent submitted a responsive posthearing brief. The record is now closed and the case is ripe for a decision. 

After considering the entire record as a whole, including witness testimony, documentary 

evidence, applicable statutes, regulations, and case law, I find the Coast Guard PROVED

Respondent is a user of dangerous drugs and accordingly, Respondent’s MMC is REVOKED. 

II. FINDINGS OF FACT

The following findings of fact are proved by a preponderance of the evidence based on a 

thorough and careful analysis of the documentary evidence, witness testimony, and the entire 

record taken as a whole. 

1. At all times relevant to the instant case, Respondent held MMC No. . [Ex. 

CG-001].
3

2. At all times relevant to the instant case, Alexis Marine, LLC (Alexis Marine), a 

tugboat company, employed Respondent as a captain of towing vessels. [Tr. Vol. I at 

20-21; Ex. CG-016].

3. At all times relevant to the instant case, vessel UNCLE ROBERT operated under a 

Coast Guard-issued Certificate of Inspection (COI). [Tr. Vol. I at 23; Ex. CG-018].

4. Alexis Marine contracts with DISA Global (DISA) to perform and administer the 

random drug testing selection process. [Tr. Vol. I at 17; Ex. CG-003].

5. On April 1, 2022, DISA randomly selected the crew of vessel UNCLE ROBERT for 

drug testing using a computer-based random number generator. [Tr. Vol. I at 17; Exs. 

CG-003, CG-005].

6. At all times relevant to this case, DISA employed George Kister (Collector) as an 

operations manager and certified Department of Transportation (DOT) urine 

collector. [Tr. Vol. I at 30-31; Ex. CG-006].

7. On April 20, 2022, the Collector conducted urine specimen collections from the crew

of the vessel UNCLE ROBERT, including Respondent. [Tr. Vol. I at 35, 38-39; Ex. 

CG-007].

8. The Collector adhered to the following urine specimen collection procedures when 

collecting Respondent’s specimen: 

a. First, the Collector prepared the bathroom where crewmembers would provide 

urine samples by removing all items (such as cleaning supplies), placing tape 

on the sink faucet, and placing blue dye in the toilet water. [Tr. Vol. I at 36-

37].

b. Next, the Collector checked Respondent’s photo ID to verify Respondent was 

the correct individual listed on the crew list. [Tr. Vol. I at 39].

c. After verifying his identity, the Collector entered Respondent’s Social 

Security number on the Federal Drug Testing Custody and Control Form 

(CCF). [Tr. Vol. I at 40].

d. The Collector allowed Respondent to choose a collection cup and asked 

Respondent to confirm the cup had no visual signs of tampering. [Tr. Vol. I at 

41].

e. Before entering the bathroom, the Collector directed Respondent to wash his 

hands in the galley. [Tr. Vol. I at 41].

f. Respondent then entered the bathroom to fill the collection cup. [Tr. Vol. I at 

41].
4

g. After Respondent returned from the bathroom with the filled collection cup, 

the Collector poured the urine from the cup into two split specimen bottles, in 

Respondent’s presence. [Tr. Vol. I at 41].

h. The Collector then affixed the seals from Respondent’s CCF to the split 

specimen bottles and asked Respondent to verify the barcode number on the 

seals matched the barcode number at the top of Respondent’s CCF. 

Respondent then initialed the seals. [Tr. Vol. I at 41].

i. The Collector proceeded to Step 4 of the CCF, which is the chain of custody 

certification, and directed Respondent to complete Step 5 of the CCF, which is 

a certification by the donor regarding the urine sample that was just provided. 

[Tr. Vol. I at 41].

j. Finally, the Collector completed the collection by placing the sealed split 

specimen bottles in a pouch with the CCF, to be sent to a lab for testing. [Tr. 

Vol. I at 43].

9. The CCF identified Respondent’s urine specimen as Specimen ID # 2072505994. 

[Ex. CG-007].

10. Clinical Reference Laboratory (CRL) performed the testing of Respondent’s urine 

specimen. [Tr. Vol. I at 105; Exs. CG-010, CG-011].

11. At all times relevant to the instant case, CRL was certified by the Department of 

Health and Human Services to meet the standards to conduct urine drug testing. [Tr.

Vol. I at 102; Ex. CG-008].

12. CRL received Specimen ID # 2072505994 on April 21, 2022, with the split specimen 

bottle seals intact. [Ex. CG-009].

13. At no time during CRL’s possession of Specimen ID # 2072505994 was the chain of 

custody compromised. [Tr. Vol. I at 108-110: Ex. CG-011].

14. The initial screening cut-off level for positive methamphetamine tests is 500 ng/mL; 

the confirmatory test cut-off level is 250 ng/mL. [Tr. Vol. I at 110-111, 113-114].

15. Specimen ID # 2072505994 tested positive for methamphetamine in the initial 

screening; after confirmatory testing, Specimen ID # 2072505994 tested positive for 

methamphetamine at 1126 ng/mL. [Tr. Vol. I at 113; Exs. CG-009, CG-010; Ex. CG011 at 72].

16. CRL performed an analysis of the amount of D-isomer and L-isomer

methamphetamine present in Respondent’s specimen, which resulted in a D-isomer

concentration of 100%. [Tr. Vol. I at 114; Ex. CG-009, CG-010; Ex. CG-011 at 1, 

95].

17. Illicit methamphetamine presents as D-isomer methamphetamine, as opposed to Lisomer, in confirmation testing. [Tr. Vol. I at 110, 114].
5

18. Nikki Wong served as CRL’s certifying scientist/technician and certified the testing 

of Specimen ID # 2072505994 met all relevant federal standards. [Ex. CG-009; Ex. 

CG-011 at 1].

19. Dr. David Kuntz, Executive Director of Analytical Toxicology at CRL, reviewed the 

lab documentation, verified Ms. Wong’s certification, and further verified that CRL’s 

receipt, handling, and testing of Respondent’s urine specimen complied with the 

requirements of 49 C.F.R. Part 40. [Tr. Vol. I at 124; Ex. CG-011].

20. At all times relevant to the instant case, Dr. William Anderson, M.D., was a physician 

and certified Medical Review Officer (MRO). [Tr. Vol. I at 145-147, 149-150; Ex. 

CG-012].

21. After reviewing the test results transmitted by CRL for Specimen ID # 2072505994, 

the MRO conducted a telephonic interview with Respondent on April 29, 2022. [Tr. 

Vol. I at 152-154; Exs. CG-013, CG-014].

22. The MRO informed Respondent that his urine sample yielded a positive result for 

methamphetamine and asked Respondent if he used methamphetamine. [Tr. Vol. I at 

154-155].

23. Respondent stated he did not use methamphetamine. [Tr. Vol. I at 154-155]. 

24. The MRO then asked Respondent if he had taken any medication that could cause his 

urine sample to test positive for methamphetamine, and Respondent explained he 

took medication for diabetes and heart disease. [Tr. Vol. I at 154-155].

25. The medications Respondent took for diabetes and heart disease could not cause a 

false positive result for methamphetamine. [Tr. Vol. I at 161-163].

26. The MRO certified on April 29, 2022, that Specimen ID # 2072505994, collected on 

April 20, 2022, tested positive for methamphetamine. [Tr. Vol. I at 155; Exs. CG013, CG-014].

27. Respondent requested split specimen testing of his urine sample. [Tr. Vol. I at 156-

157].

28. Quest Diagnostics performed testing of Respondent’s split specimen sample and 

confirmed the presence of methamphetamine in Respondent’s urine. [Tr. Vol. I at 

157; Ex. CG-015].

29. Respondent denied using methamphetamine. [Tr. Vol. I at 154-155, 218-219].

30. Respondent underwent an independent hair drug test in June of 2022 that showed no 

methamphetamine in Respondent’s sample. [Ex. R-3 at 67].
6

III. DISCUSSION

A. Jurisdiction

Under Coast Guard caselaw, jurisdiction is a question of fact and must be determined 

before the substantive issues of the case are decided. Appeal Decision 2620 COX (2001). When 

the Coast Guard charges use of, or addiction to, a dangerous drug, jurisdiction exists so long as 

the respondent holds a credential at the time the Coast Guard initiates the proceedings. Appeal 

Decision 2712 (MORRIS) (2016); Appeal Decision 2721 (TOWNSEND) (2018). Here, the 

record shows Respondent held MMC No. at all times relevant to this proceeding. 

[Ex. CG-001]. Accordingly, I have jurisdiction to adjudicate this matter. 

B. Burden of Proof

Pursuant to 46 U.S.C. § 7702(a), title 5 U.S.C. §§ 551-559, of the Administrative 

Procedure Act (APA) applies to Coast Guard suspension and revocation proceedings. The APA 

authorizes sanctions if, upon consideration of the record as a whole, the charges are supported by 

reliable, probative, and substantial evidence. 5 U.S.C. § 556(d). Under Coast Guard procedural 

rules and regulations, the burden of proof is on the Coast Guard to prove the charges are 

supported by a preponderance of the evidence. 33 C.F.R. §§ 20.701, 20.702(a). “The term 

substantial evidence is synonymous with preponderance of the evidence as defined by the U.S. 

Supreme Court.” Appeal Decision 2477 (TOMBARI) (1988); see also Steadman v. Securities 

and Exchange Commission , 450 U.S. 91, 107 (1981). 

The burden of proving a fact by a preponderance of the evidence “simply requires the 

trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence before 

[he or she] may find in favor of the party who has the burden to persuade the [judge] of the fact’s 

existence.’” Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension 

Trust for Southern California, 508 U.S. 602, 622 (1993) (citing In re Winship, 397 U.S. 358, 

371-72 (1970) (Harlan, J., concurring) (brackets in original)). Therefore, the Coast Guard must 
7

prove by preponderant evidence that Respondent is a user of or addicted to the use of dangerous 

drugs, as alleged in the Complaint.

C. Prima Facie Case of Use of a Dangerous Drug

As noted above, the Coast Guard charged Respondent with use of, or addiction to, the use 

of dangerous drugs because Respondent tested positive for methamphetamine. 46 C.F.R. § 

7704(b) and 46 C.F.R. § 5.35. To prove this allegation, the Coast Guard may rely on various 

types of evidence, including witness’ observations and/or chemical drug testing. In this case, the 

Coast Guard’s primary evidence is a positive random drug test performed on April 20, 2022. 

There are two types of drug tests the Coast Guard relies on as evidence to prove a charge 

of use of, or addiction to the use of dangerous drugs; tests ordered pursuant to 46 C.F.R. Part 16 

(Part 16 drug tests), and those not ordered pursuant to 46 C.F.R. Part 16 (Non-Part 16 drug 

tests). Appeal Decisions 2668 (MERRILL) (2003); 2625 (ROBERTSON) (2002); 2545 

(JARDIN) (1992); 2704 (FRANKS) (2014). An employer conducts a test pursuant to Part 16 

only for one, or more, of the following reasons: 1) Pre-employment testing; 2) Periodic testing; 

3) Random testing; 4) Testing resulting from serious marine incidents; and 5) Reasonable cause 

testing. See 46 C.F.R. §§ 16.210-16.250. Commandant Decisions on Appeal (CDOA) often 

refer to these Part 16 tests as “government ordered tests” because, when required, the employer 

has no discretion under these circumstances and must conduct the testing as an agent of the 

government. Appeal Decision 2704 (FRANKS) (2014).

The Coast Guard may also rely on Non-Part 16 tests, which include hospital, law 

enforcement, and some types of employer-ordered tests. If employers order these Non-Part 16 

tests for reasons other than the regulatory five reasons, it is usually for a reason set forth in the 

employer’s handbook/and or drug testing policies. These employer-ordered tests are not ordered 

by the government, and therefore, the employer is not acting as a government agent. 
8

When the employer acts as a government agent, the regulations trigger extra measures to 

protect the mariner. In Part 16 tests, these extra protections include the requirement for urine 

specimens to be tested pursuant to the DOT regulations in 49 C.F.R. Part 40. 46 C.F.R. § 

16.201. In Non-Part 16 tests, there is no requirement to comply with Part 40 because the 

employer is seemingly not acting as a government agent. However, if Part 16 testing 

requirements in Part 40 are not followed, the ALJ must ensure the urine specimen test results are 

reliable.

The key difference between the Coast Guard relying on Part 16 tests versus a Non-Part 

16 test is whether Respondent is presumed to be a user of dangerous drugs based solely on the 

positive drug test. 46 C.F.R. § 16.201(b). Under Section 16.201(b), the Coast Guard can obtain 

a presumption that the respondent is a user of dangerous drugs if, and only if, the Coast Guard 

proves the employer ordered the tests for one of the reasons in Part 16 (the why) and the test was 

conducted in accordance with Part 40 (the how). See Appeal Decision 2704 (FRANKS) (2014) 

(discussing the “why” and “how” under Part 16 tests). On the other hand, the presumption never 

applies when the Coast Guard relies on a Non-Part 16 test. 

The procedures of 46 C.F.R. Part 16 were established not only to protect public safety, 

but also to ensure the constitutional rights of mariners are safeguarded throughout the drug 

testing process. By expressly mandating specific, limited types of drug tests—pre-employment, 

periodic, random, serious marine incident, and reasonable cause testing—the regulations attempt 

to balance the privacy interest of the mariner with the paramount need to ensure safety in the 

marine industry. Appeal Decision 2704 (FRANKS) (2014).

As stated above, the Coast Guard’s primary evidence is a positive random drug test. In 

order to prove a prima facia case of drug use in a Part 16 drug test, the Coast Guard must show:

1); the test was properly ordered in accordance with 46 C.F.R. Part 16, 2); Respondent was the 

person who was tested for dangerous drugs, and 3); Respondent tested positive for dangerous 
9

drugs. Appeal Decision 2603 (HACKSTAFF) (1998); see also Appeal Decision 2653 

(ZERINGUE), (2005); Appeal Decision 2584 (SHAKESPEARE) (1997). If the Coast Guard 

establishes a prima facie case that a respondent is a user of, or addicted to, dangerous drugs, 

Respondent is presumed to be a user of dangerous drugs. Appeal Decision 2584 

(SHAKESPEARE) (1997). The respondent may then present evidence to rebut the presumption. 

If the respondent fails to rebut the evidence presented by the Coast Guard, the ALJ may find the 

charges proved based upon the presumption alone. Appeal Decision 2592 (MASON) (1997).

Against this procedural backdrop, I now turn to the specifics of this case. After 

considering the record as a whole, I find the Coast Guard established a prima facie case of drug 

use. I further find Respondent’s rebuttal evidence did not overcome the presumption arising 

from the establishment of the prima facie case. The reasons for my findings are set forth, below.

1) The Selection Process Complied with 46 C.F.R. Part 16

As stated above, a Part 16 drug test includes pre-employment, periodic, random, serious 

marine incident, and reasonable cause testing. Here, the Coast Guard alleges respondent failed a 

random drug test. Marine employers are required to establish programs for chemical testing for 

dangerous drugs on a random basis for crewmembers on inspected vessels who occupy a position 

required by the vessel’s Certificate of Inspection. 46 C.F.R. § 16.230(a)(1). In this case, the 

Coast Guard established through the testimony of Danielle Alexis Kidwell, Operations Manager 

for Alexis Marine, that at all times relevant, the vessel UNCLE ROBERT was an inspected 

vessel and its crewmembers were subject to the random drug testing requirements of 46 C.F.R. 

Part 16. [Tr. Vol. I at 15-18]. On April 20, 2022, Alexis Marine employed Respondent to work 

on the vessel UNCLE ROBERT. [Tr. Vol. I at 19-20; Ex. CG-016]. Thus, Respondent was a 

crewmember of UNCLE ROBERT subject to random testing under 46 C.F.R. § 16.230(a)(1). 

In addition to being on a vessel subject to random drug testing, random selection must be 

done in accordance with a scientifically valid method, such as a random number generator that 
10

selects a vessel for testing, provided that each vessel subject to the marine employer's test 

program remains equally subject to selection. 46 C.F.R. § 16.230(c); Appeal Decision 2710 

(HOPPER) (2015). Marine employers may use contractors to administer the chemical testing 

programs required by Part 16. 46 C.F.R. § 16.230(d). Here, Alexis Marine contracted with 

DISA to perform the random drug testing selection process. The Coast Guard presented the 

testimony of Morgan Reynolds, Director of Governance and Risk for DISA. [Tr. Vol. I at 73-

74]. Reynolds explained that DISA utilizes a computer-based random number generator

program to choose vessels for random drug testing on a quarterly basis. [Tr. Vol. I at 76-77; Ex. 

CG-005]. DISA’s selection process is sufficient to ensure a valid random selection and to 

prevent unfair targeting of mariners for testing. Accordingly, I find Alexis Marine complied 

with the requirements of 46 C.F.R. Part 16 when selecting Respondent for random drug testing. 

2) The Administration of the Drug Test Satisfied the Remaining Elements of a Prima 

Facie Case of Use of a Dangerous Drug

Having found Respondent was properly selection for a random drug test, I now consider 

whether the evidence is sufficient to satisfy the remaining elements of a prima facie case. When 

the Coast Guard relies on a Part 16 required drug test, it must be conducted in accordance with 

the DOT drug testing regulations in 49 C.F.R. Part 40. After consideration of the entire record, I 

find the Coast Guard proved by preponderant evidence the drug test was performed in 

accordance with 49 Part 40. Thus, the results of Respondent’s positive drug test are reliable.

a. The Urine Collection Process Met 49 C.F.R. Part 40 Requirements

First, the Coast Guard must prove Respondent was the person who submitted the 

specimen that was tested for drugs. Here, the Collector checked Respondent’s photo ID to verify 

he was the correct individual listed on the crew list when Respondent presented himself for the 

test. [Tr. Vol. I at 39]. Thus, I find Respondent is the person who was tested for drugs.
11

Next, I must determine whether the specimen collection process substantially complied 

with the requirements of 49 Part 40 Subparts C, D, and E. On April 20, 2022, the Collector 

boarded the vessel UNCLE ROBERT to collect urine specimens from the crew. [Tr. Vol. I at 35; 

Exs. CG-006, CG-009]. The Collector first prepared the bathroom where crewmembers would 

provide urine samples by: removing items that could be used to adulterate a sample, such as 

cleaning supplies; placing tape on the sink faucet; and placing blue dye in the toilet water. [Tr. 

Vol. I at 36-37]. 

After the Collector verified Respondent’s identity, he entered Respondent’s Social 

Security number in Step 1 of the Federal Drug Testing Custody and Control Form (CCF). [Tr. 

Vol. I at 40; Exs. CG-006, CG-009]. The Collector then allowed Respondent to choose a 

collection cup and asked Respondent to confirm the cup had no visual signs of tampering. [Tr. 

Vol. I at 41]. Before entering the bathroom, he directed Respondent to wash his hands in the 

galley. [Tr. Vol. I at 41]. Respondent then entered the bathroom to fill the collection cup. [Tr. 

Vol. I at 41]. After Respondent returned from the bathroom with the filled collection cup, the 

Collector poured the urine from the cup into two split specimen bottles, in Respondent’s 

presence. [Tr. Vol. I at 41]. 

The Collector then affixed the seals from Respondent’s CCF to the split specimen bottles. 

[Tr. Vol. I at 41]. The Collector asked Respondent to verify the barcode number on the seals 

matched the barcode number at the top of Respondent’s CCF. [Tr. Vol. I at 41]. Respondent 

then initialed the seals. [Tr. Vol. I at 41]. The Collector proceeded to Step 4 of the CCF, which 

is the chain of custody certification, and directed Respondent to complete Step 5 of the CCF, 

which is a certification by the donor that the urine sample that was just provided was not 

adulterated by Respondent, that Respondent observed his urine sample being poured and sealed 

into the split-specimen tubes, and that Respondent agrees the information on the split-specimen 

tubes and the CCF is correct. [Tr. Vol. I at 41]. Finally, the Collector completed the collection 
12

by placing the sealed split specimen bottles in a pouch with the CCF, to be sent to a lab for 

testing. [Tr. Vol. I at 43].

According, I find the Coast Guard proved by preponderant evidence the specimen 

collection process complied the requirements of 49 C.F.R. Part 40, Subparts C, D, and E.

b. Laboratory Testing of Respondent’s Specimen Met 49 C.F.R. Part 40 

Requirements

Now, I turn to whether the Coast Guard presented evidence sufficient to show

Respondent failed the drug test. This requires an examination of the laboratory analysis of 

Respondent’s urine specimen as well as the MRO’s verification of Respondent’s positive test 

result. I address the laboratory compliance first. 

Dr. David Kuntz is the Executive Director of Forensic Toxicology for CRL with 30 years 

of experience in the field of laboratory science. [Tr. Vol. I at 100-101]. Dr. Kuntz testified on 

behalf of CRL concerning the laboratory’s testing procedures and specifically to Respondent’s 

urine specimen. [Tr. Vol. I at 99-143]. 

CRL received Specimen ID # 2072505994 on April 21, 2022, with the split specimen 

bottle seals intact. [Ex. CG-009]. At no time during CRL’s possession of Specimen ID # 

2072505994 was the chain of custody compromised. [Tr. Vol. I at 108-110: Ex. CG-011]. CRL 

performed an initial screening of Respondent’s specimen using an immunoassay test, which 

yielded a presumptive positive result for methamphetamine. [Tr. Vol. I at 113; Ex. CG-011 at 

72]. CRL then performed confirmatory testing using mass spectrometry with a cut-off level of 

250 ng/L. [Tr. Vol. I at 110-111, 113-114, 138-140]. After confirmatory testing, Specimen ID # 

2072505994 tested positive for methamphetamine at 1126 ng/mL. [Tr. Vol. I at 113; Exs. CG009, CG-010; Ex. CG-011 at 72]. CRL performed an analysis of the amount of D-isomer and Lisomer methamphetamine present in Respondent’s specimen, which resulted in a D-isomer

concentration of 100%. [Tr. Vol. I at 114; Ex. CG-009, CG-010; Ex. CG-011 at 1, 95]. Illicit 
13

methamphetamine presents as D-isomer methamphetamine, as opposed to L-isomer, in 

confirmation testing. [Tr. Vol. I at 110, 114]. CRL ensured its equipment produced accurate 

results by performing calibration and quality control tests. [Tr. Vol. I at 115-116].

Nikki Wong served as CRL’s certifying scientist/technician and certified the testing of 

Specimen ID # 2072505994 met all relevant federal standards. [Ex. CG-009; Ex. CG-011 at 1]. 

Dr. Kuntz reviewed the lab documentation and verified Ms. Wong’s certification, and further 

verified that CRL’s receipt, handling, and testing of Respondent’s urine specimens complied 

with the requirements of 49 C.F.R. Part 40. [Tr. Vol. I at 124; Ex. CG-011].

The evidence presented by the Coast Guard showed CRL complied with the regulations 

contained in 49 C.F.R. Part 40, Subpart F, and satisfied quality control practices in its testing of 

Respondent’s specimen. 

c. MRO Verification of Respondent’s Positive Drug Test Result Met 49 C.F.R. Part 

40 Requirements

Having determined the laboratory analysis of Respondent’s specimen yielded a positive 

test, I turn to the MRO’s verification of Respondent’s positive drug test for methamphetamines. 

Dr. William Anderson, M.D., a physician and certified MRO, evaluated the results of 

Respondent’s drug test. [Tr. Vol. I at 145-147, 149-150; Ex. CG-012]. Prior to verifying a 

positive test result, the MRO must allow the donor to provide a legitimate medical reason for the

positive result and allow opportunity for the donor to request a retest of the urine specimen. 49 

C.F.R. §§ 40.135, 40.137, and 40.153. In accordance with that regulation, Dr. Anderson spoke 

to Respondent by telephone on April 29, 2022. [Tr. Vol. I at 154; Ex. CG-014]. Dr. Anderson 

informed Respondent his urine sample yielded a positive result for methamphetamine; asked 

Respondent if Respondent used methamphetamine, and Respondent answered in the negative. 

[Tr. Vol. I at 154-155]. Dr. Anderson also asked Respondent if he had taken any medication that 

could cause his urine sample to test positive for methamphetamine, and Respondent replied that 
14

he took medication for diabetes and heart disease. [Tr. Vol. I at 154-155]. Dr. Anderson 

testified those medications could not cause a false positive result for methamphetamine. [Tr. 

Vol. I at 161-163]. Having found no legitimate explanation for the presence of 

methamphetamine in Respondent’s sample, Dr. Anderson certified on April 29, 2022, that 

Specimen ID # 2072505994, collected on April 20, 2022, tested positive for methamphetamine. 

[Tr. Vol. I at 155; Exs. CG-013, CG-014].

Considering all of the evidence in the record, I find the MRO’s review of the lab results 

and verification of the positive drug test result satisfied the requirements for MRO verification of 

a positive test and reporting results to the designated employer representative (DER), in keeping 

with 49 C.F.R. Part 40, Subpart G.

D. Respondent’s Evidence Was Not Sufficient to Rebut the Prima Facie Case Made by 

the Coast Guard

Since the Coast Guard established a prima facie case of use of or addicted to the use of a 

dangerous drug through a Part 16 ordered drug test, a presumption of dangerous drug use arises, 

and the burden then shifts to the respondent to produce persuasive evidence to rebut the 

presumption. 46 C.F.R. § 16.201(b); 33 C.F.R. § 20.703(a); Appeal Decision 2603 

(HACKSTAFF) (1998). A respondent faced with overcoming the presumption of use of a 

dangerous drug “may rebut the presumption by producing evidence (1) that calls into question 

any of the elements of the prima facie case, (2) that indicates an alternative medical explanation 

for the positive test result, or (3) that indicates the use was not wrongful or not knowing.” 

Appeal Decision 2560 (CLIFTON) (1995). If a respondent’s evidence sufficiently rebuts the 

presumption, the burden of presenting evidence of a respondent’s drug use returns to the Coast 

Guard, which always bears the ultimate burden of proof on this issue. Id.; 33 C.F.R. § 20.703(b). 

Respondent cross-examined the Coast Guard’s witnesses; testified on his own behalf; 

presented the testimony of his spouse, Sharon Morgan; and presented documentary evidence. 
15

During cross-examination of the specimen collector, Respondent elicited the Collector “altered” 

the CCF by striking out an account number in the upper left corner of the form and handwriting 

“Alexis Marine” and its “DGS.DDOT” account number in its place. [Ex. CG-009; Tr. Vol. I at 

46]. Respondent failed to show how this alteration of the form had any effect on the veracity of 

the test results. Given the evidence presented at this hearing by both parties, I do not find that 

substituting one company’s account number for another’s on the CCF had any harmful effect on 

the drug testing process. Indeed, the regulations provide examples of “fatal flaws” related to the 

execution of the CCF and the transmittal of the CCF and specimen to the laboratory, and 

substituting one company’s account number for another’s is not listed as a fatal flaw. 49 C.F.R. 

§ 40.199; see also Appeal Decision 2653 (ZERINGUE) (2005).

In his post-hearing brief, Respondent also asserts the specimen was mishandled between 

the time the Collector left the UNCLE ROBERT and when Federal Express delivered the 

specimen to CRL. In particular, Respondent argues the Collector did not lock his bag before he 

departed the UNCLE ROBERT and there is a lack of documentary evidence, such as a FedEx 

shipping label, showing how the specimen was transported by FedEx to CRL. [Respondent PostHearing Brief at 2-3; Tr. Vol. I at 44]. The Collector testified Respondent was the last person on 

the crew to provide a urine sample, so he did not lock his bag containing the urine specimens 

before departing the UNCLE ROBERT. [Tr. Vol. I at 44]. 

Reviewing the Collectors testimony, it is clear he felt comfortable leaving the specimen 

bag unlocked because there was no individual in the room with him who could potentially open 

the bag to tamper with its contents. Therefore, I do not find Respondent’s argument persuasive.

The Collector was the one responsible for ensuring the samples were subject to tampering. Here, 

he had the samples within his custody and transported them to Federal Express, and I find the 

Collector did not tamper with the specimens while in his control. Moreover, the seals on 

Respondent’s split specimen bottles were intact when CRL received them. [Exs. CG-009, CG-
16

011; Tr. Vol. I at 110-112]. Despite the absence of FedEx documentation, there is no evidence 

in the record to show the split specimen bottles received by CRL were tampered with, 

adulterated, or otherwise compromised before CRL proceeded to test the specimen.

Respondent also argues the Coast Guard did not present the court with sufficient 

information regarding the testing of the split specimen “bottle B” and attempts to call into 

question the validity of the result. [Respondent Post-Hearing Brief at 5-6]. In accordance with 

DOT drug testing regulations, Respondent’s urine specimen was poured into two bottles, so that 

one bottle could be reserved for reconfirmation testing, also called “split specimen” testing. [Tr. 

Vol. I at 41; Exs. CG-007, CG-009]; 49 C.F.R. § 40.17(a) (“[a]ll collections under DOT agency 

drug testing regulations must be split specimen collections.”). Respondent availed himself of the 

opportunity to have the split specimen tested; it was sent to Quest Diagnostics for testing, which 

reconfirmed the presence of methamphetamine in Respondent’s urine. [Tr. Vol. I at 155-157; 

Ex. CG-015]. Here, the Coast Guard’s evidence regarding reconfirmation, or split testing, 

showed compliance with DOT regulations, and Respondent does not present any facts that call 

into question the validity of the result. [Tr. Vol. I at 140-141; 154-158; CG-015]. Respondent 

argues the Coast Guard did not present evidence of the testing methods employed by the second 

laboratory, but such detailed evidence regarding reconfirmation testing is not required by the 

regulations. [Respondent Post-Hearing Brief at 5-6]; see 49 C.F.R. §§ 40.153, 40.171-189. 

Finally, Respondent and his spouse, Sharon Morgan, testified to his character, 

maintaining Respondent takes marine safety seriously and has never been a user of illegal drugs. 

[Tr. Vol. I at 179-233]. Respondent and Mrs. Morgan have been married for over 45 years, and 

Ms. Morgan has never known Respondent to use any illegal drugs in that time. [Tr. Vol. I at 

179, 185]. Respondent also testified he has never used methamphetamine in his life. [Tr. Vol. I 

at 218-219]. 
17

After receiving the results of the random drug test at issue here, Respondent underwent a 

hair drug test in June of 2022 by a company called Omega. [Tr. Vol. I at 195-196]. According 

to the results provided by Omega, no methamphetamine was detected in Respondent’s sample. 

[Tr. Vol. I at 196-197, 223-224; Ex. R-3]. While I found Ms. Morgan and Respondent’s 

testimony to be impactful, their statements cannot overcome the strength of the Coast Guard’s 

evidence of the reliability of the random drug test result. The result of the hair drug test also 

does not undermine the reliability of the random drug test result, both because the hair drug test 

was performed about two months after the random drug test, and because, per the testimony of 

Dr. Kuntz, hair tests are “not effective for identifying a single use or irregular use [of 

methamphetamine]....” [Tr. Vol. I at 123]. After consideration of Respondent’s evidence in 

rebuttal, I find Respondent did not overcome the presumption of drug use that arose from the 

Coast Guard’s prima facie case.

IV. SANCTION

The purpose of Coast Guard suspension and revocation proceedings are to promote safety 

at sea. 46 U.S.C. § 7701(a). Under 46 U.S.C. § 7704(b), an MMC shall be revoked if the holder 

has been a user of, or addicted to, a dangerous drug, unless the holder provides satisfactory proof 

that he is cured. See generally Appeal Decision 2634 (BARRETTA) (2002); Appeal Decision 

2535 (SWEENEY) (1992). Pursuant to 46 C.F.R. § 5.19, Administrative Law Judges (ALJ) 

have authority to admonish, suspend, or revoke an MMC for violations arising under 46 U.S.C. § 

7704. 

When the Coast Guard proves a mariner has used, or is addicted to, dangerous drugs, 

revocation of all Coast Guard issued licenses, documents, and other credentials is the appropriate 

sanction unless cure is proven. 46 U.S.C. 7704(c); 46 C.F.R. § 5.59; Appeal Decision 2535 

(SWEENEY) (1992). Here, the Coast Guard proved by preponderant evidence Respondent was 
18

a user of dangerous drugs, and Respondent did not present any evidence of cure therefore, the 

only appropriate sanction is REVOCATION.

WHEREFORE,
19

ORDER

IT IS HEREBY ORDERED, Merchant Mariner Credential No. , and all 

other valid licenses, documents, and endorsements issued by the Coast Guard to Respondent are 

REVOKED. 

PLEASE TAKE NOTICE, within three (3) years or less, Respondent may file a motion 

to reopen this matter and seek modification of the order of revocation upon a showing that the 

order of revocation is no longer valid and the issuance of a new license, certificate, or document 

is compatible with the requirement of good discipline and safety at sea. The revocation order 

may be modified upon a showing that Respondent:

(1) has successfully completed a bona fide drug abuse rehabilitation program;

(2) has demonstrated complete non-association with dangerous drugs for a minimum of 

one year following completion of the drug rehabilitation program; and

(3) is actively participating in a bona fide drug abuse monitoring program.

See 33 C.F.R. § 20.904 and 46 C.F.R. § 5.901. The drug abuse monitoring program must 

incorporate random, unannounced testing during that year. Appeal Decision 2535 (SWEENEY)

(1992).

PLEASE TAKE FURTHER NOTICE, the parties’ appeal rights are set forth in 33 

C.F.R. 20.1001 – 20.1004. (See Attachment B).

______________________________________

Brian J. Curley

Administrative Law Judge

United States Coast Guard

Done and dated April 17, 2024

New Orleans, LA