1

UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

DANIEL JAMES ARGAST

Respondent

_________________________________

Docket Number 2015-0263

Enforcement Activity No. 5206886

DECISION AND ORDER

Issued: July 07, 2016

By Administrative Law Judge: Honorable Michael J. Devine

Appearances:

LT MIAH A. BROWN

Sector Hampton Roads

and 

CDR CHRISTOPHER F. COUTU, ESQ.

USCG SR-NCOE

For the Coast Guard

OWEN DUFFY, Esq.

For the Respondent
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Table of Contents

I. PRELIMINARY STATEMENT..................................................................................... 4

II. FINDINGS OF FACT.................................................................................................... 6

III. DISCUSSION.............................................................................................................. 9

A. Jurisdiction............................................................................................................... 9

B. Burden of Proof...................................................................................................... 10

C. Use of or Addiction to the Use of Dangerous Drugs............................................. 10

1. Elements of the Charged Violation and Parties’ Contentions Regarding 

Sufficiency of the Evidence and MSC Procedures.................................................... 10

2. Whether the Presumption in 46 C.F.R. § 16.201(b) May Apply to a Drug Test 

conducted pursuant to MSC Equivalent Procedures.................................................. 13

3. Whether the May 28 Drug Test was Directed for a Permissible Purpose.......... 15

4. Whether the Evidence of a Positive Drug Test is Sufficient to Prove Respondent 

is a User of or Addicted to the Use of a Dangerous Drug.......................................... 18

D. Whether Respondent’s Specimen Was Positive for a Dangerous Drug ................ 25

1. Cocaine is a Dangerous Drug............................................................................. 25

2. The Laboratory Found that Specimen ID # 1339504 Yielded a Positive Drug 

Test Result.................................................................................................................. 25

E. Respondent’s Evidence was Not Persuasive and Not Sufficient to Rebut the 

Evidence Presented by the Coast Guard........................................................................ 26

IV. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW.................... 30

V. SANCTION ................................................................................................................. 31

VI. ORDER....................................................................................................................... 32

ATTACHMENT A ........................................................................................................... 34

WITNESS AND EXHIBIT LISTS................................................................................... 34

ATTACHMENT B ........................................................................................................... 37

STIPULATION AND OFFICIAL NOTICE .................................................................... 37

ATTACHMENT C ........................................................................................................... 38

RULINGS ON PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. 38
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ATTACHMENT D ........................................................................................................... 50

APPEAL RIGHTS............................................................................................................ 50
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I. PRELIMINARY STATEMENT

The United States Coast Guard (USCG) initiated this Suspension and Revocation 

proceeding seeking revocation of Daniel James Argast’s (Respondent) Merchant Mariner 

Credential Number 000284890 by filing a Complaint on August 12, 2015. This action is 

brought pursuant to the authority contained in 46 U.S.C. § 7703(1)(B) and its underlying 

regulations codified at 46 C.F.R. Part 5 and 33 C.F.R. Part 20. 

On October 14, 2015, the Coast Guard filed an Amended Complaint alleging 

Respondent violated 46 U.S.C. § 7704 by testing positive for dangerous drugs as 

described in 46 C.F.R. § 5.35. Specifically, the Coast Guard alleges on May 28, 2015, 

Respondent participated in a non-Department of Transportation (DOT) drug test and his 

specimen tested positive for cocaine metabolites. 

On October 21, 2015, Respondent filed an Answer to the Amended Complaint 

admitting to all jurisdictional allegations and the factual allegations in paragraphs three 

(3) and eight (8). Respondent’s Answer denied factual allegations in paragraphs one (1), 

two (2), four (4), five (5), six (6), and seven (7) of the Amended Complaint. 

Respondent’s Answer also asserted various defenses. 

On October 30, 2015, Respondent submitted a Motion to Dismiss the Amended 

Complaint contending the undisputed evidence showed his specimen was not properly 

collected because the collector was a co-worker in the same testing pool. The Coast 

Guard opposed Respondent’s Motion contending that the Chief Mate was not a coworker since Respondent was in the Engineering division and that the collection was 

properly completed with safeguards such as tamper-proof seals. On November 18, 2015, 
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the undersigned ALJ issued an Order denying Respondent’s Motion without prejudice 

because there remained facts in dispute.

On December 3 and 4, 2015, the Court conducted a hearing in this matter in 

accordance with the Administrative Procedure Act (APA) as amended and codified in 5 

U.S.C. §§ 551-559, and Coast Guard procedural regulations set forth in 46 C.F.R. Part 5 

and 33 C.F.R. Part 20. Commander Christopher Coutu, Esq., Lieutenant Miah Brown, 

Investigating Officer, and Lieutenant Bradley P. Bergan, appeared on behalf of the Coast 

Guard, and Owen F. Duffy, Esq., appeared on Respondent’s behalf. At the hearing, the 

Coast Guard called seven (7) witnesses and offered twenty-four (24) exhibits for 

admission. Respondent called six (6) witnesses and offered ten (10) exhibits.1 During 

the hearing, rulings on Coast Guard (CG) Exhibits 22, 23 and 24 were deferred pending 

further briefing by the parties. Likewise, rulings on Respondent’s Exhibits (Resp. Ex.) I 

and J were deferred pending further briefing of the parties. The Coast Guard 

subsequently withdrew its objection to Respondent’s Exhibits I and J. After considering 

the positions of the parties, including arguments presented at the hearing and in posthearing briefs, I find Coast Guard Exhibits 22, 23 and 24 and Respondent’s Exhibits I 

and J are relevant and are admitted into evidence in this matter.

The parties filed final arguments and proposed findings of fact and conclusions of 

law on January 28, 2016. The record is closed and ripe for a decision. 

After careful review of the entire record, including the witness’ testimony, 

applicable statutes, regulations, and case law, the Court finds the Coast Guard PROVED 

one count of use of or addiction to the use of dangerous drugs pursuant to 46 U.S.C. § 

7704 and 46 C.F.R. § 5.35. 
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II. FINDINGS OF FACT

Upon review of the entire record taken as a whole, the Court makes the following 

findings of fact:

1. At all relevant times herein, Respondent held Merchant Mariners Credential 

Number 000284890. (Transcript of Record (TR) Vol. 1 at 6; TR Vol. II at 165; 

Resp. Ex. D).

2. Respondent has been a Civilian Mariner (CIVMAR) employee of Military Sealift 

Command (MSC) since August 3, 2012. (TR Vol. II at 70). 

3. MSC is an Agency of the United States Department of the Navy. See Coast 

Guard Exhibit 2 (CG-02); CG-04; See also Padro v. Vessel Charters, Inc., 731 F. 

Supp. 145, 146 (S.D.N.Y. 1990).

4. MSC maintains a Memorandum of Agreement with the United States Coast 

Guard whereby the Coast Guard recognizes that CIVMARs are subject to the 

Navy’s Drug Free Workplace Program and allows MSC procedures to be used to 

avoid subjecting CIVMARs to multiple and redundant federal drug testing 

standards. (TR Vol. I at 22-25; CG-02; CG-04 at 1).

5. USNS MERCY and other USNS ships are “public vessels” as defined in 46 

U.S.C. § 2101 and exempt from mandatory USCG inspection pursuant to 46 

U.S.C. § 2109. (CG-02).

6. The chemical drug testing procedures used by MSC differ from those set forth in 

49 C.F.R. Part 16, but MSC is authorized by the U.S. Coast Guard to use 

alternative testing procedures pursuant to an Interagency Agreement between 

USCG and Military Sealift Command. (CG-2; CG-04).

7. Instead of 49 C.F.R. Part 40 procedures, MSC uses the technical guidelines for 

drug testing to test civilian mariners’ samples provided by the Department of 

Health and Human Services. (CG-03).

8. On May 27, 2015, Respondent served as the Second Engineer and throttleman 

aboard the hospital ship USNS MERCY. (TR Vol. I at 125, 135; TR Vol. II at 

80-81); id. 

9. On May 27, 2015, the USNS MERCY was under the command of Captain 

Thomas Guidice. (TR Vol. I at 137; CG-13).

 

1 A list of the witnesses and exhibits offered by both parties is contained in Attachment A. 
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10. During departure from the port of Pearl Harbor, Hawaii on May 27, 2015, the 

USNS MERCY allided with the USS Arizona Memorial’s boat landing platform 

in Pearl Harbor, Hawaii. 2 (CG-14; TR Vol. I at 126). 

11. Captain Giudice informed his command that the May 27, 2015 allision of the 

USNS MERCY with the USS ARIZONA’s landing platform potentially caused 

$10,000.00 or more in damage. (TR Vol. I at 129, 137). 

12. Captain Giudice initially determined that as the Master of the ship and overall 

command of the ship’s operation he should be subject to drug and alcohol testing 

and provided a specimen for drug testing with the Chief Mate acting as collector 

for his specimen. (TR Vol. I at 131-132, 142).

13. Mr. Jack Taylor, the Director of Military Sealift Command and Commander, 

Military Sealift Fleet Support Command (MSFSC), discussed the allision with his 

staff and determined that post-accident drug testing should be conducted for all 

involved personnel and crewmembers. (TR Vol. I at 94-99, 107-08, 130, 138-139 

and 149; CG-13).

14. MSC and Captain Giudice determined what personnel should be tested based on 

what positions they were occupying at the time of the marine casualty. 

Respondent, as the throttleman during the allision, was among the crew members 

to be drug tested, along with other individuals in the Engine Control Room and 

those on the bridge during the allision. (TR Vol. I at 96-97, 130-132, 138-139; 

TR Vol. I at 155-158; CG-13).

15. Captain Giudice was the collector for a drug test specimen from Chief Mate John 

French who was required to provide a specimen as one of the personnel on the 

bridge at the time of the allision. (TR Vol. I at 96-97 and 130-132; 138-141; TR 

Vol. I at 155; CG-13). 

16. As the throttleman in the engine control room at the time of the allision, 

Respondent was obliged to execute Captain Giudice’s orders, ultimately 

controlling the vessel’s propulsion. (TR Vol. I at 97, 132-139; CG-13).

17. Captain Giudice directed his Chief Mate, John French, the Ship’s drug workforce 

coordinator to conduct the urine collection for the drug testing. (TR Vol I at 36-

38, 125-26, 161-62). 

18. On May 28, 2015, Respondent submitted a urine sample to Chief Mate John 

French in the Chief Mate’s office/stateroom. (TR Vol. I at 183).

 

2 Under maritime law, “[a]n allision is a collision between a moving vessel and a stationary object.” In re 

Omega Protein, Inc., 548 F.3d 361, 366 (5th Cir. 2008) (quoting Thomas J. Schoenbaum, Admiralty & 

Maritime Law § 14-2 (4th ed. 2004)).
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19. After reporting to Chief Mate French, both Respondent and Chief Mate French 

signed the Navy Urine Specimen Collection Checklist and initialed beside each of 

the collection procedures set forth in the document. (CG-07).

20. Chief Mate French followed most but not all of the collection procedures set forth 

in the Navy Urine Specimen Checklist even though both he and Respondent 

initialed each procedure. (TR Vol. 1 at 44:17-25 and 45:1-25; TR Vol. 2 at 90:3-

5.)

21. Respondent’s urine sample, and other urine samples, remained in Chief Mate 

French’s office/state room until the vessel reached its next available mailing port 

in Fiji. (TR Vol. I at 60, 117, 189, 201; CG-11).

22. Chief Mate French verified that the specimens had not been tampered with and 

the samples were shipped from Fiji via FedEx to the SAMHSA certified testing 

laboratory on June 11, 2015, scheduled for delivery on June 16, 2015. (TR Vol. I 

at 60, 189, 201; CG-11). 

23. Captain Giudice reviewed all of the documentation for urinalysis before they left 

the ship. (TR Vol. I at 139, 144).

24. On June 18-19, 2015, Respondent’s urine sample (number 1339504) tested at a 

level of 253 ng/ml for cocaine metabolites. That result was positive above the 

confirmation cutoff number of 100 ng/ml for cocaine metabolites. (TR Vol. I at 

222-223, 275; CG-12).

25. When a urine sample is positive for cocaine metabolites, prolonged delays 

between urine sample collection and urinalysis typically gives a lower 

concentration of cocaine metabolites than testing occurring closer in time to the 

urine collection. (TR Vol. I at 231-232).

26. Dr. Cooper, a Medical Review Officer (MRO) confirmed the positive laboratory 

results. (TR Vol. I at 274-275; CG-19). 

27. Dr. Fiero, a Medical Review Officer from the same company as Dr. Cooper 

reconfirmed the positive chemical test results. (TR Vol. I at 273-275; 280-283; 

CG-19).

28. On August 6, 2015, seventy (70) days after providing a urine sample on the USNS 

MERCY, Respondent voluntarily provided a hair specimen and submitted it to 

LabCorp for a hair drug test. (TR Vol. II at 103, 133; Resp. Ex. I).

29. One and a half inches of hair can provide information concerning drug-use for 

approximately ninety (90) days prior to collection. (TR Vol. II at 103, 133). 
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30. The August 6, 2015, hair test was submitted to LabCorp as a “first time 

collection” and not a “confirmation screen” or a “follow-up test.” (TR Vol. II at 

130-131, 144-145, 160; CG-23 and CG-24; TR Vol. II at 162-163).

31. LabCorp has an Agreement with Psychemedics Corporation in Culver City, 

California to conduct hair testing analysis for LabCorp and Psychemedics 

Corporation conducted the testing of Respondent’s hair specimen. (TR Vol. II at 

130- 143, CG-23 and 24).

32. When reviewed as a “first time collection” Respondent’s hair test received a 

designation indicating it was “negative” for cocaine based on test results showing 

no dangerous drug levels above the preliminary cutoff. Even if below the cutoff 

level the hair specimen may still indicate the presence of cocaine metabolites. 

(TR Vol. II at 162-163; TR Vol. II at 134, 146).

33. Respondent’s August 6, 2015 drug hair test indicated the presence of cocaine 

metabolites in the specimen at a level below the cutoff for an initial test. (CG01).

34. Respondent’s hair specimen confirmed the presence of cocaine metabolites, and 

would have been sent for further GCMS testing and considered positive for use of 

cocaine, a dangerous drug if it had been submitted as a follow-up or confirmatory 

test. (TR Vol. II at 160-163). 

III. DISCUSSION

A. Jurisdiction

Jurisdiction is a question of fact and must be determined before the substantive 

issues of the case are decided. Appeal Decision 2620 (COX) (2001). Jurisdiction is 

established for the purposes of suspension and revocation proceedings when the use of a 

dangerous drug is charged, so long as the respondent is a current holder of any Coast 

Guard issued credential. See Appeal Decision 2668 (Merrill) (2007). The Coast Guard 

has jurisdictional authority to suspend or revoke a mariner’s credentials if the mariner is 

shown to be a user of, or addicted to the use of a dangerous drug. 46 U.S.C. § 7704(c). 

Cocaine is a “dangerous drug” as contemplated by 46 U.S.C. § 7704. See 46 U.S.C. § 

2101(8a). 
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In this case, Respondent admits to the jurisdictional allegations in the Amended 

Complaint and does not contest he was the holder of an MMC at the time the Coast 

Guard charged him with use of a dangerous drug. See Answer to Amended Complaint at 

1; Respondent’s Post Hearing Brief at 7. Additionally, compliance with drug testing 

requirements also supports jurisdiction. 46 C.F.R. § 5.57. Therefore, the Coast Guard 

has jurisdiction to adjudicate this matter. See Appeal Decision 2668 (Merrill) (2007)

B. Burden of Proof

The purpose of Coast Guard suspension and revocation proceedings is to promote 

safety at sea. 46 U.S.C. § 7701. To assist in this goal, Coast Guard Administrative Law 

Judges have the authority to suspend or revoke mariner credentials if a mariner commits 

certain violations. See 46 U.S.C. Ch. 77. Under Coast Guard procedural rules and 

regulations, the Coast Guard bears the burden of proof and shall prove any violation by a 

preponderance of the evidence. See 33 C.F.R. §§ 20.701-702; see also Appeal Decision 

2485 (YATES) (1989). In this case, the Coast Guard seeks to prove, by a preponderance 

of the evidence, that Respondent is the user of or is addicted to the use of dangerous 

drugs. Respondent may bear the burden of proving any asserted affirmative defenses. 33 

C.F.R. §§ 20.701-702.

C. Use of or Addiction to the Use of Dangerous Drugs

1. Elements of the Charged Violation and Parties’ Contentions Regarding 

Sufficiency of the Evidence and MSC Procedures

Title 46 U.S.C. § 7704(c) is the statute that provides the basis for the charge in 

this matter. In the single violation asserted, the Coast Guard alleged Respondent 

submitted to an employer mandated post-accident drug test, he subsequently tested 
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positive for cocaine, and based upon those results, the Coast Guard argues it has been 

shown he is the user of dangerous drugs. 

The minimum elements necessary to prove use of or addiction to the use of 

dangerous drugs, under 46 U.S.C. § 7704(c) and 46 C.F.R. § 5.35, requires the Coast 

Guard prove by a preponderance of the evidence: 

(1) The respondent is a holder of a merchant marine document or license, and

(2) The respondent was the user of or addicted to a dangerous drug. 

Here Respondent has not disputed he holds an MMC, therefore, the first element is 

proven. The second element may be proven by various means, including observation, 

possession and drug testing. Coast Guard precedent provides authority that permits 

proof of dangerous drug use by any admissible evidence. However, the Coast Guard 

retains the burden of proof as required by 33 C.F.R. Part 20. The Coast Guard’s primary 

evidence to support the charged violation is Respondent’s May 2015, employer required, 

non-Part 16 drug test, which provided a positive result for cocaine metabolites. Although 

the Coast Guard recognizes the May 2015 collection is a non-Part 16 test, the Coast 

Guard contends the presumption provided by 46 C.F.R. 16.201(b), may still apply to find 

Respondent is a user of or addicted to the use of dangerous drugs. 

Pursuant to Coast Guard regulations, a prima facie case to prove use of a 

dangerous drug based solely on DOT chemical testing is shown when three elements are 

proved: 1) the respondent was the person who was tested for dangerous drugs, (2) the 

respondent failed the test, and (3) the test was conducted in accordance with 46 C.F.R. 

Part 16 (including the 46 C.F.R. § 16.201 requirement to use the procedures in 49 C.F.R. 

Part 40). Appeal Decision 2904 (FRANKS) (2014).
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The Coast Guard also argues a subsequent hair drug test, which Respondent 

presented at the hearing,3combined with rebuttal evidence presented by the Coast Guard, 

corroborates the May 2015 test and constitutes sufficient evidence to prove Respondent 

has been a user of dangerous drugs as alleged in the Complaint. 

Respondent argues the May 2015 test is insufficient to prove Respondent is a 

user of or addicted to the use of dangerous drugs. Specifically, Respondent argues: 1) 

the urine test was not properly conducted; 2) a chain of custody was not properly 

maintained over Respondent’s urine sample; and 3) Respondent’s evidence rebuts any 

allegations of drug use established by the Coast Guard. 

The Court notes this case presents some unusual facts for a dangerous drug charge 

because the procedures followed for conducting urinalysis were not DOT procedures 

under 49 C.F.R. Part 40 nor 46 C.F.R. Part 16. Instead, the Coast Guard approved 

MSC’s request to use generally equivalent procedures pursuant to a Memorandum of 

Agreement with MSC to satisfy both military requirements and the interests of safety at 

sea. TR Vol. I at 255, 270-271; CG-02; CG-04. MSC vessels are “public vessels” 

operated to support Navy missions and are exempt from commercial vessel requirements. 

See 46 U.S.C. §§ 2101(24) and 2109; CG-02. 

Although both parties cite Appeal Decision 2704 (FRANKS) (2014) in support of 

their arguments, I find neither FRANKS nor any other Commandant’s Decision on 

Appeal (CDOA) directly on point for this matter. FRANKS resolved a confusion of 

CDOA caselaw that implied sufficient compliance with the testing procedures of 49 

C.F.R. Part 40 alone, without also meeting 46 C.F.R. Part 16 requirements, satisfied the 

 

3 Respondent voluntarily submitted a hair specimen for drug testing in August 2015 and presented the 

initial results from that specimen as evidence at the hearing. (Vol. II Tr. at 103-112; Resp. Ex. I and J).
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third element of the regulatory requirements to obtain the presumption of drug use from a 

positive chemical test result. Some of the analysis in that decision, beyond the failure of 

the Coast Guard to demonstrate the drug test was ordered for one of the five permissible 

bases provided by 46 C.F.R. Part 16, is either not applicable to the case at bar or may be 

considered dicta.4 

2. Whether the Presumption in 46 C.F.R. § 16.201(b) May Apply to a Drug Test 

conducted pursuant to MSC Equivalent Procedures

Pursuant to 46 C.F.R. § 16.201(b), “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.” As set forth in Appeal Decision 2637 (Tuberville) (2003), “[f]or the 

presumption to arise, the Coast Guard must prove: (1) that the Respondent was the person 

who was chemically tested for dangerous drugs; (2) that Respondent failed the chemical 

test for dangerous drugs; and (3) that the test was conducted in accordance with 46 C.F.R. 

Part 16.” Appeal Decision 2603 (HACKSTAFF) (1998); Appeal Decision 2592 

(MASON) (1997); Appeal Decision 2589 (MEYER) (1997).

The Coast Guard does not dispute the May 2015 MSC drug testing requirements 

do not comply with the drug testing regulations in 46 C.F.R. Part 16. Specifically, 

because Part 16 includes the requirement to comply with the DOT drug testing 

regulations contained in 49 C.F.R. Part 40. The Coast Guard asserts the test required by 

MSC is compliant with equivalent Health and Human Services (HHS) guidelines, and is 

 

4 The Commandant’s decision makes it clear that compliance with 49 C.F.R. Part 40 cannot avoid the 

requirement that a directed drug test be for a valid purpose as provided by 46 C.F.R. Part 16. In FRANKS

the alleged reason for the chemical test was periodic testing but no basis for conducting a periodic test was 

ever placed in evidence. Mariners may not be singled out for required chemical testing under the 

regulations in the absence of demonstration of a proper basis for testing. Testing may also be required in 

keeping with company policy.
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thereby reliable, and constitutes sufficient evidence to prove Respondent is a user of or 

addicted to the use of a dangerous drug. See Appeal Decision 2704 (FRANKS) (2014).

The Coast Guard also argues that when HHS standards are met, the Court should 

apply the presumption of drug use set forth in 46 C.F.R. § 16.201(b) because MSC’s drug 

testing program is “in essence, the same for the selection of mariners as well as for the 

sample’s subsequent analysis and review.” The Coast Guard contends that because MSC 

used HHS procedures which “mirror” procedures articulated by 46 C.F.R. Part 16, the 

presumption of use in 46 C.F.R. § 16.201(b) may be applied.

The Court rejects the Coast Guard’s argument. I find the regulatory presumption 

of 46 C.F.R. Part 16 does not apply absent actual compliance with those regulations. The 

record shows the Coast Guard cannot meet the third element for the presumption, that the 

test was conducted in accordance with 46 C.F.R. Part 16, because MSC does not use the 

49 C.F.R. Part 40 DOT Testing regulations. Even the Amended Complaint identifies the 

May 2015 test as “a non 46 C.F.R. Part 16 test. . .” Even though MSC is authorized to 

use somewhat equivalent drug testing procedures, the Coast Guard concedes the 

collection procedures used by MSC differ from those in 49 C.F.R. Part 40. Since the 

MSC procedures are not the same as DOT testing regulations in 49 C.F.R. Part 40, I find 

the presumption set forth in 46 C.F.R. § 16.201(b) does not apply to this case. 

Although the regulatory presumption is not available in this case, the Coast Guard 

may present whatever evidence is admissible to attempt to prove its case. See Appeal 

Decision 2542 (DEFORGE) (1992) citing Appeal Decision 2252 (BOYCE) (1981); 46 

C.F.R. § 5.501. After hearing all of the evidence, the ALJ must then make an 
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independent determination of whether the evidence submitted is sufficient to prove 

Respondent was a user of dangerous drugs.

3. Whether the May 28 Drug Test was Directed for a Permissible Purpose

 In general, when the Coast Guard presents evidence of a government directed 

drug test under 46 C.F.R. Part 16, the reason for requiring the mariner to be tested must 

fit within one of the five (5) permissible bases (pre-employment, random, post-accident, 

reasonable cause or periodic). If the mariner participated in a drug test as a condition 

required by the employer or some other reason rather than one of the five bases listed 

under the regulations then the limitations of FRANKS may not apply.

The Coast Guard contends this matter is an employer required test while 

Respondent asserts it is a hybrid situation where the matter can be said to fall somewhere 

between a USCG mandated drug test and a non-USCG mandated drug test. See

Respondent’s Post-Hearing Brief at 9. The MSC/HHS guidelines control when an MSC 

mariner may be required to participate in a drug test. The HHS Guidelines provides for 

testing for the following reasons: “(a) Federal agency applicant/Pre-employment test; (b) 

Random test; (c) Reasonable suspicion/cause test; (d) Post-accident test; (e) Return to 

duty test; or (f) Follow-up test.” See Section 2.2 Mandatory Guidelines for Federal 

Workplace Drug Testing Program. See 73 Fed. Reg. at 71880. (Nov. 25, 2008). 

Respondent’s contention of a “hybrid” is not an unreasonable argument since 

USNS vessels are operated by civilians, but are also public vessels. Public vessels are 

exempt from commercial vessel requirements, but MSC agreed to conduct a testing 

program in the interests of safety at sea and national defense. See CG-02 at 2-4; 46 

U.S.C. § 2109; 46 C.F.R. § 6.06. Therefore, I find the MSC policy adopted through 
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approval of the MOA makes the initial test conducted in this matter an employer policy 

test. I also find that regardless of whether the May 28, 2015 drug test in this matter is 

considered government directed or employer directed, it satisfies the concerns of 

FRANKS supra, that the mariner test be directed for one of the permissible bases 

identified as proper bases for testing whether under 46 C.F.R. Part 16, or MSC/HHS 

guidelines because it was a properly required post-casualty drug test under either 

procedure. 

Pursuant to MSC’s policies set forth in the Civilian Marine Personnel Instruction 

(CMPI) 792 (CG-03) and MSC Safety Management System Instruction for PostAccident/Incident or Unsafe Practice Drug and Alcohol testing (CG-04), urine drug 

testing shall be performed with the concurrence of the MSFSC Director, or his delegate, 

when a mishap or unsafe practice occurs which results in . . . damage equal to or above 

$10,000.00. CG-04 at 2, para. 3.3. The MSC policy further requires urine testing of 

persons reasonably suspected of having caused or contributed to an accident with more 

than $10,000 in damage may be subject to drug testing. CG-03 at 20. Here, the record 

shows MSC complied with these requirements. 

The evidence demonstrates on May 27, 2015, the USNS MERCY allided with a 

fixed object as she maneuvered to depart Pearl Harbor, Hawaii. Captain Giudice 

subsequently opined that part of the damage was caused by his “full bell” command, 

which was executed on the vessels propulsion and resulted in damage to the USS Arizona 

Memorial. TR Vol. I at 129, 132-134. Respondent testified he was the engineer 

throttleman that complied with speed commands, either ahead or astern. See TR Vol 2 at 

82. Accordingly, it was reasonable for MSC to consider the throttleman, whose duties 
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include responding to propulsion commands, could have contributed to the casualty on 

May 27, 2015. 

After the incident, Captain Giudice concluded the USNS MERCY caused damage 

exceeding $10,000.00. TR Vol. I at 137. That same day, Captain Giudice consulted with 

MSC Deputy Director Frank Cunningham. The Deputy Director specifically listed the 

engineer manning the throttle control as an example of the personnel the Captain should 

test. See CG-13; TR Vol. I at 135; Vol. II at 80-81.

Therefore, the Court finds MSC reasonably determined the damage from the 

allision exceeded $10,000.00. The Court also finds Captain Giudice properly consulted 

with the MSC Director’s office and MSC’s determination to direct the May 27, 2015, 

watchstanders including Respondent to submit to a post-accident drug test on May 28, 

2015, was within MSC guidance and authority. Given Respondent’s position as the 

throttleman responding to speed commands, it was reasonable to consider he might have 

contributed to the casualty in this case. Therefore, all the requirements set forth in CMPI 

792 are satisfied.

As noted above, this case is not directly aligned with CDOAs applying Part 16 to 

a chemical test in order to apply the regulatory presumption of dangerous drug use if a 

prima facie case under 46 C.F.R. Part 16 is proven. FRANKS does not address this 

situation where a Department of Defense (DOD) entity (MSC) has obtained Coast Guard 

authorization through an MOA to use an alternative to 46 C.F.R. Part 16. Accordingly, to 

the extent FRANKS holds that dismissal may be appropriate if the Government fails to 
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demonstrate compliance with the limited reasons for chemical testing contained in 46 

C.F.R. Part 16, those concerns are satisfied here.5

4. Whether the Evidence of a Positive Drug Test is Sufficient to Prove 

Respondent is a User of or Addicted to the Use of a Dangerous Drug.

Having determined the May 28, 2015, drug test was directed for a proper purpose, 

post-accident testing after a marine casualty, the Court now turns to whether the evidence 

presented by the Coast Guard is sufficient to prove Respondent is a user of or addicted to 

the use of dangerous drugs. As stated above, the Coast Guard bears the burden of proof.6 

Although I find the regulatory presumption is not applicable in this case, the Coast Guard 

may prove use of a dangerous drug by presenting sufficient evidence7to establish the 

following three elements: 1) Respondent was the person who was tested for dangerous 

drugs; 2) Respondent failed the drug test; and 3) the test was conducted in accordance 

with procedures and safeguards to support a finding that the evidence of a positive result 

is sufficiently reliable and persuasive to support a finding of use of a dangerous drug. Cf.

Appeal Decision 2603 (HACKSTAFF) (1998). See also Appeal Decision 2653 

(ZERINGUE) (2005); Appeal Decision 2584 (SHAKESPEARE) (1997). 

 

5

Franks directs the Court to subject the non-Part 16 test to “close scrutiny to ensure that Part 16 has not 

been circumvented.” There is no basis to find the test was required by some sort of pretext. A review of 

the evidence in this case shows the May 2015 employer-based test was not an attempt to circumvent Part 

16, but directed as part of MSC procedures that are authorized by the United States Coast Guard. 

(Memorandum of Agreement between the Navy and the USCG). See CG-02, Signed by Admiral Shannon 

(USN) and Admiral Servidio (USCG). The agreement expressly permits MSC to set forth certain testing 

guidelines in its MSC Government Operations Safety Management System (SMS) (CG-04) and more 

specifically in the Civilian Marine Personnel Instruction (CMPI) 792 (CG-03). 

6Where the basis of proof for the charged violation is a positive urinalysis test, the Coast Guard must 

establish by substantial and reliable evidence that a merchant mariner is a user of or addicted to dangerous 

drugs. Appeal Decision 2560 (CLIFTON) (1995).

7

“The Administrative Law Judge may properly consider any fact which sheds light on the proof or falsity 

of a charge. Appeal Decision 2252 (BOYCE) (1981). Any relevant and material evidence may be 

considered. 46 C.F.R § 5.501. (Appeal Decision 2542 (DEFORGE) (1992). 
19

If the Coast Guard establishes sufficient8evidence to demonstrate Respondent is a 

user of or addicted to dangerous drugs,9 Respondent may then present evidence to rebut 

the evidence of drug use presented by the Coast Guard. 

a. Whether the May 2015 Drug Test Collection Procedures were 

Sufficient for the Respondent’s Urinalysis Specimen.

Respondent does not dispute the scientific validity of the urinalysis drug testing or 

the certification of the U.S. Army Lab, but argues a number of required procedures were 

violated when Chief Mate French collected his sample after the May 27, 2015 incident. 

Respondent argues the procedural violations render his specimen invalid. Specifically, 

Respondent argues: 1) Respondent was not provided proper written notice before the test 

was conducted; 2) Chief Mate French did not have recent training to be a collector and 

lacked experience as a collector; 3) Chief Mate French did not follow some MSC 

procedures when collecting Respondent’s specimen; 4) the chain of custody was not 

properly maintained and 5) Chief Mate French was a co-worker from the same testing 

pool and therefore was not a proper collector. 

The Coast Guard contends none of the alleged technical infractions, even if true, 

are sufficient to cast doubt on the May 2015 test’s reliability. Relying on CDOAs, the 

Coast Guard notes technical infractions such as those argued by Respondent are 

insufficient to invalidate a test because they do not cast doubt on the chain of custody or 

the specimen’s integrity. See Appeal Decision 2542 (DEFORGE) (1992). 

 

8

Prior decisions may be considered for determining what may be considered sufficient evidence in a 

suspension and revocation proceeding. FRANKS makes clear non-Part 16 tests are sufficient if they are 

accompanied by “modest additional evidence to prove that the presence of metabolite in a non-Part 16 test 

means [] the mariner used dangerous drugs. . .” and so long as the Coast Guard is able to link the test 

results to the mariner and prove the reliability of the non-Part 16 test. FRANKS at 8.

9 A credibility determination is not required to meet the standard for denying a motion to dismiss at the end 

of the Coast Guard’s case. As long as the evidence, if believed, would be sufficient to prove the charged 
20

i. Respondent was the Person Tested for Dangerous Drug with 

specimen #1339504 (Respondent alleged error (1))

Although it is clear from the record Respondent was not required to present a photo 

ID, he was a known member of the crew of USNS MERCY and to the collector. Chief 

Mate French knew him so there is no failure to identify the correct person for the 

specimen collected on May 28, 2015. See Respondent testimony TR Vol. II at 115. This 

is sufficient to satisfy the collection procedure concerns. See DEFORGE, supra. 

Additionally, Respondent’s Answer to the Amended Complaint and the evidence at 

hearing including his own testimony shows Respondent signed a Drug Custody and 

Control Form (CCF) for providing specimen ID# 1339504 for the urinalysis test sample 

collected on the USNS MERCY on May 28, 2015. CG-07 and 10; TR Vol. I at 42-45, 

51-60, 182-90; TR Vol. II at 86-90. The CCF also verifies that Respondent submitted to 

a drug test on May 28, 2015. CG-07, 10, and 11. Chief Mate John French testified to the 

specific procedures he followed when conducting the collection of the urinalysis 

specimens on May 28, 2015, for the USNS MERCY, including Respondent’s urine 

specimen and testified that the procedures were followed in accordance with MSC CMPI 

792. CG-03; TR Vol. I at 179-204. A minor technical error regarding photo 

identification is not sufficient to exclude the evidence of collection of a sample in this 

matter. 

ii. Chief Mate French’s Collector Training, Experience, and 

Chain of Custody Procedures were Sufficient (Respondent 

alleged errors 2, 3 and 4)

Chief Mate French was a certified urinalysis collector having completed training. 

CG-06 and TR Vol I at 40-43. HHS guidelines provide that collectors should receive 

 

violation, the Judge may deny the motion to dismiss and then permit Respondent to present any rebuttal 
21

refresher training every five years. MSC granted a waiver of the five-year requirement, 

and Chief Mate French’s training was just beyond the five years. TR Vol. I at 73, 85-86; 

CG-06. Respondent also challenges Chief Mate French’s experience, and argues he was 

unqualified to conduct the urinalysis. 

As long as the collector has had the requisite training and provides testimony 

regarding the procedures followed, the collection may be sufficient. Chief Mate French 

completed the collector training as documented by CG Exhibit 06 and testified he 

previously assisted in urinalysis collections and collected approximately twenty (20) 

previous samples. Chief Mate French and Respondent testified that they reviewed and 

initialed the checklist and Respondent initialed the tamper proof seals for his specimen. 

The evidence shows Respondent’s specimen was placed in a plastic bag and sealed. 

After collection of the specimens, Chief Mate French put the specimens in a box and 

placed them in the refrigerator in his stateroom. Although there was some testimony that 

the stateroom was not locked at all times I do not find this constitutes a compromise of 

the custody of the specimens prior to shipment to the U.S. Army Lab. The evidence 

shows that the specimens were in sealed packages consistent with Section 5.4 of the HHS 

Guidelines and MSC Procedures and remained intact prior to shipment and were verified 

to be intact on arrival at the lab. Although there were some technical errors in this 

matter, the facts are sufficient to indicate the collection of specimens was sufficient and 

the custody of the samples was sufficiently maintained. Technical infractions such as 

those argued by Respondent are insufficient to invalidate a test where they do not cast 

doubt on the chain of custody or the specimen’s integrity. See Appeal Decision 2688 

(HENSLEY) (2010).

 

evidence.
22

Respondent raised questions concerning the length of time between collection of 

the specimens and their shipment to the lab and implied that proper custody of the 

specimens was not maintained. Dr. Smith, Forensic Toxicologist, testified that delay 

from time of donation to delivery to the laboratory for testing would not increase any 

positive test results and instead would potentially result in a lower test result over time. 

TR Vol. I at 231-32. The specimens collected were shipped to the U.S. Army Forensic 

Drug Testing Facility in Maryland from the ship’s next port call in Fiji. CG-11; TR Vol I 

at 59-61. Chief Mate French retained the specimens in his refrigerator until they were 

shipped out and verified that the specimens plastic bags and seals were intact. TR Vol I 

at 189, 199-201, 203-05. 

I find no persuasive evidence showing Respondent’s specimen was in anyway 

adulterated or tampered with and no evidence that would invalidate the custody and 

control procedures leading up to the specimen’s shipment to the testing facility (U.S. 

Army Forensic Toxicology Drug Testing Laboratory at Fort Meade, Maryland). The 

Army Forensic Toxicology Drug Testing Laboratory (Army Lab) is a SAMSHA certified 

facility. CG-15; TR Vol. I at 211-15. Dr. Smith of the Army Forensic Toxicology Drug 

Testing Laboratory testified that the specimens from the USNS MERCY, including 

specimen number 1339504 were received at his facility intact and the tamper proof seals 

were intact. CG-16; TR Vol I at 220-222. Dr. Smith also testified regarding the chain of 

custody and testing procedures at the lab and the positive test result for specimen number 

1339504. Based on all of the evidence in the record, I find that the chain of custody and 

shipment inspection procedures at the Army Laboratory were sufficient to demonstrate 

they were in substantial compliance with HHS and CMPI 792 procedures.
23

iii. Whether Chief Mate French should have been Disqualified as 

Collector because he was a co-worker from the same testing 

pool (Respondent alleged error 5)

Respondent argues that Chief Mate French was a co-worker and therefore within 

the same unit/testing pool and the urinalysis test should be rejected on that basis. Resp. 

Ex. A, at Chapter 1, (pg 1).10 The undersigned Judge notes MSC/HHS procedures do not 

define the term “co-worker.” But a review of the facts demonstrates that Chief Mate 

French and Respondent were not co-workers. Although the Chief Mate was part of the 

crew of the USNS MERCY, there is no dispute that Respondent was in the Engineering 

Division and not supervised by the Chief Mate. TR Vol I at 181-82. It is clear from the 

record that Respondent worked for the Chief Engineer and was not in daily contact with 

Chief Mate French. Nothing in the record shows Respondent and Chief Mate French had 

a working relationship and Respondent cites no evidence showing why the two should be 

considered co-workers. Therefore, I find Chief Mate French and Respondent were not 

“co-workers” as contemplated in the MSC/HHS Guidelines and procedures. 

Whether the Chief Mate should be considered part of the same “testing pool” is 

also somewhat unclear. Mr. Eudell Walker, MSC coordinator, considered all of the 

Civilian Mariners working for MSC to be within the same testing pool. TR Vol. I at 78-

79. Respondent argues that either the entire crew of the USNS MERCY or at least all of 

the personnel tested as a result of the allision should be considered in the same testing 

pool. The guidelines are apparently designed to avoid collusion among co-workers to 

circumvent the validity of the testing scheme and to prevent an individual from collecting 

their own specimen. 73 Fed. Reg. at 71862. (Nov. 25, 2008). Chief Mate French was not 
24

a co-worker and his position as Chief Mate does not add or detract from the review of the 

significance of any errors in the collection process. The procedural errors in this case do 

not present a fatal flaw listed in the guidelines. Resp. Ex. A at Chapter 9, (pgs 29-30). 

Considering all of the evidence in the record, I find no evidence of collusion nor any 

attempt to circumvent the validity of the testing scheme which would merit excluding the 

test on this basis. 

Here the evidence shows Chief Mate French was also tested after the May 27, 

2015, allision, but Captain Giudice collected his specimen. TR Vol I at 140. Under 

MSC procedures, the Chief Mate was the designated person for conducting urinalysis for 

the vessel unless a Medical Officer was assigned to the ship. The USNS MERCY did not 

have a medical officer assigned. Although Respondent contends other members of the 

crew could have collected specimens instead of the Chief Mate, there was nothing shown 

that anyone other than the Master who previously been a Chief mate was trained in 

collection procedures. Upon receipt at the U.S. Army Lab, the specimens received were 

found to be intact. Although there remains a concern because the Chief Mate was also 

required to be tested, his specimen was separately collected by the Captain, and thereby 

separate from the testing pool the Chief Mate collected. The need for the Navy to permit 

the USNS MERCY to continue on its mission and the need for timely post-casualty 

testing in the interests of safety at sea under 46 C.F.R. § 5.5 are valid concerns, but are 

also balanced with the requirement for providing mariners appropriate due process 

regarding their profession and credentials under 46 U.S.C. § 7702. While this is a close 

issue, in the absence of any evidence of tampering with the plastic bags or seals for the 

 

10 Chapter 1, Collector section provides restrictions including excluding from eligibility as a collector “A 

co-worker who is in the same testing pool or who works with an employee on a daily basis must not serve 
25

collected specimens, the Coast Guard’s evidence was sufficient to avoid summary 

decision or dismissal at the close of the Coast Guard’s case.11

D. Whether Respondent’s Specimen Was Positive for a Dangerous Drug

1. Cocaine is a Dangerous Drug

The Amended Complaint alleges use of or addiction to the use of a dangerous 

drug in violation of 46 U.S.C. § 7704. Cocaine is a controlled substance within the 

definition of “dangerous drug” as provided in 46 U.S.C § 2101(8a). There is no dispute 

that cocaine was the substance identified as the basis for a positive test, nor whether it is a 

dangerous drug under U.S. law. Respondent’s defense focused on contesting the validity 

of the sample and reliability of the testing procedures. 

2. The Laboratory Found that Specimen ID # 1339504 Yielded a Positive 

Drug Test Result

As noted above, neither party asserted a specific challenge to the scientific 

validity of the urinalysis testing for drugs by a certified laboratory. The U.S. Army 

Forensic Toxicology Drug Testing Laboratory tested Respondent’s specimen for 

dangerous drugs and returned a positive result for cocaine metabolite (Benzoylecgonine) 

at a level of 253 ng/ml. CG-16; CG-14. The record shows the Army Lab is certified by 

the Department of Health and Human Services to perform testing under federal 

regulations. TR Vol. I at 214-216; CG-15; 80 Fed. Reg, 31054-55 (June 1, 2015). The 

Coast Guard presented the testimony of Dr. Smith, the lab director to explain the receipt 

and processing of specimens at the Army Lab in general and the process for 

Respondent’s test results. The Coast Guard also offered CG-15 (80 Fed. Reg. 31054-

 

as a collector when that employee is tested.”
26

31055 (June 1, 2015)) in support of the laboratory testing meeting all HHS requirements. 

Dr. Smith also testified that he oversees the entire testing facility and ensures that the 

individuals are trained in the standard operating procedures of the facility and are capable 

of carrying out that job. TR Vol. I at 216-259. 

The MRO, Dr. Jerome Cooper, received the results from the Army Lab and 

verified the test as positive for cocaine metabolite. CG-19; TR Vol I at 267-76. The 

positive test results were reconfirmed by Dr. Fiero. TR Vol I at 280-81.

The evidence shows collection of Respondent’s specimen substantially complied 

with collection and chain of custody procedures through shipment to the Army Lab. The 

Army Lab was certified for HHS testing, and the testimony of Dr. Smith, along with the 

evidence presented of the lab procedures for proper verification of specimen seals being 

intact on arrival and chain of custody and testing of the specimen, are sufficiently reliable 

to meet the burden of proof in regard to providing sufficient evidence of use of dangerous 

drugs. 

The evidence presented satisfied the standard of proof (preponderance of the 

evidence) sufficiently to survive a motion to dismiss at the close of the Government case 

in chief had such a motion been asserted.12 Pursuant to the regulations, Respondent was 

entitled to present evidence on his own behalf to rebut the evidence presented by the 

Coast Guard.

E. Respondent’s Evidence was Not Persuasive and Not Sufficient to Rebut 

the Evidence Presented by the Coast Guard. 

 

11 The Court had denied Respondent’s pre-hearing Motion to Dismiss on this issue.

12 On October 30, 2015, Respondent submitted a Motion to Dismiss the amended complaint contending the undisputed 

evidence shows his specimen was not properly collected because the collector was a co-worker in the same testing 

pool. On November 18, 2015, an Order was issued denying Respondent’s Motion without prejudice because there 

remained facts in dispute.
27

Respondent, in his brief, argues a number of points regarding alleged deficiencies 

in the collection of his specimen and the chain of custody procedures for his urinalysis 

test. In rebuttal, Respondent presented evidence regarding the May 28, 2015, collection 

procedures on the USNS MERCY, including his own testimony. TR Vol. II at 86-92. 

The testimony and evidence regarding the retention of the collected specimens in the 

Chief Mate’s refrigerator, verification by the Chief Mate before shipment that the 

specimens were intact and subsequent verification by the Army Lab that the specimens 

were received intact, with no break of the tamper proof seals, is sufficient for the Court to 

find the chain of custody for Respondent’s specimen to be sufficient in this matter. 

During his testimony, Respondent denied using cocaine and testified he 

voluntarily submitted a hair specimen for drug testing on August 6, 2015, which was 

reported by LabCorp as a negative result. Respondent also presented character evidence 

through testimony and letters. 

The Coast Guard initially objected to the introduction of the subsequent hair 

chemical test by Respondent and, at the hearing, the Court deferred ruling on whether the 

evidence would be admitted pending further briefing and argument by the parties. The 

Coast Guard later withdrew its objection and both parties submitted post-hearing briefs in 

regard into the evidence of the subsequent hair test and how it should be considered in 

this matter. As noted above, after review of the record and the arguments for admission 

presented by the parties, the evidence of the hair test is admitted into evidence. 

During the hearing, Respondent offered Exhibit I, a document from LabCorp, 

showing a negative result from Respondent’s hair specimen collected on August 6, 2015. 

Respondent also presented Exhibit J, a print out from LabCorp website, to demonstrate 
28

the procedures for hair drug testing analysis. Respondent also relied on the decision in 

U.S.C.G. v McPherson, Docket No. 2013-0434 (January 7, 2015), issued by Judge Jordan 

finding hair testing and analysis to be a reliable and scientifically valid method of testing 

for cocaine use. Although only CDOAs are binding authority13 for this Court, I find 

Judge Jordan’s thorough analysis on this issue to be strongly persuasive authority and, 

based on the matters presented by the parties including the testimony of Dr. Thomas 

Cairns, I also find that hair testing is a reliable and scientifically valid method of testing 

for dangerous drugs including cocaine. 

At the conclusion of Respondent’s presentation of evidence, the Coast Guard 

called Dr. Thomas Cairns,14 a forensic toxicologist for Psychemedics Corporation in 

California, as a rebuttal witness to testify regarding Respondent’s hair test. Dr. Cairns 

testified regarding his background, credentials, and the certification and testing 

procedures for Psychemedics Corporation. He also testified that his company had an 

agreement with LabCorp to conduct hair testing for them and that Psychemedics 

conducted the test for Respondent’s August 6, 2015 hair specimen. TR Vol. II at 130, 

143-144. Dr. Cairns testified that Respondent’s specimen submitted to Psychemedics 

indicated a presence of cocaine metabolites that was below the cut-off level for an initial 

drug test. TR Vol. II at 132-135; 145-148, 152. Further testimony by Dr. Cairns 

provided a substantial amount of information regarding the testing process for hair 

specimens including the amount of time for a look-back period as discussed in 

Respondent’s Exhibit J. Dr. Cairns reviewed the documentation regarding Respondent’s 

specimen and Dr. Cairns stated that if the specimen had been submitted as a confirmatory 

 

13 See 46 C.F.R. § 5.65.
29

test it would have been reported as positive for cocaine. TR Vol. II at 160-163; CG-23 

and 25. Dr. Cairns also testified that Respondent’s hair test results were inconsistent with 

incidental or one-time use. Dr. Cairns testified that the level of metabolites indicated a 

long period of abstinence, but preceded by use of cocaine.

As noted above, Respondent cites Judge Jordan’s decision in U.S.C.G. v. 

McPherson, supra to support the argument that hair testing is a reliable drug test and that 

the Court should consider Respondent’s hair test results in reaching a decision in this 

matter. However, once the matter was presented by Respondent, the process of the 

hearing permits exploration of such evidence in rebuttal. The record shows that LabCorp 

used Psychemedics to conduct the hair testing of Respondent’s specimen. In contesting 

the rebuttal evidence testimony from Dr. Cairns, Respondent argues Dr. Cairns relied on 

“junk science” when he concluded Respondent’s hair test corroborated the initial May 

2015 positive test results. I find this argument inconsistent and unconvincing and it is 

rejected. I find Dr. Cairns testimony to be substantial, persuasive evidence showing an 

indication of cocaine use. The voluntary hair test presented by Respondent when 

considered in the light of Dr. Cairn’s testimony corroborates the evidence of a positive 

result from the urinalysis test from the May 28, 2015, collection on the USNS MERCY. 

In conclusion, I find the evidence Respondent presented on his own behalf is not 

sufficient to rebut the evidence of the positive test results from the May 2015 test as 

corroborated by the hair test. Respondent’s final brief and argument also noted 

Respondent had not failed previous drug tests. However, evidence of past negative drug 

tests from a different time period are not relevant to the present case. While the 

 

14 Throughout the transcript Dr. Cairns name is misspelled as Dr. “Karins.” Dr. Cairns C.V. was admitted 

as CG-21. 
30

voluntary hair test in this matter is relevant and admitted based on the testimony in the 

record regarding the timeframe and type of test, subsequent negative tests may be 

considered irrelevant. See generally Appeals Decision 2635 (SINCLAIR) (2002). 

After considering the record as a whole, I find the charged violation PROVED. 

Rulings on the parties proposed findings of fact and conclusions of law are contained in 

Attachment C.

IV. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. At all relevant times, Respondent was a holder of Coast Guard issued 

Merchant Mariner Credential No. 000284890.

2. Respondent and the subject matter of this hearing are properly within the 

jurisdiction vested in the Coast Guard under 46 U.S.C. § 7704(c); 46 C.F.R. 

Part 5; 33 C.F.R. Part 20; and the APA codified at 5 U.S.C. §§ 551-59.

3. On May 28, 2015 Respondent participated in a post-accident drug test.

4. Respondent’s Custody and Control Form shows Respondent’s urine sample 

yielded a positive result for cocaine metabolite.

5. The Coast Guard provided sufficient evidence to prove that Respondent’s 

positive drug test was supported by reliable and probative evidence sufficient 

to meet the burden of proof required by 33 C.F.R. § 20.702.

6. Respondent voluntarily provided a hair specimen for a subsequent drug test in 

August 2015. 

7. When considered as an initial drug screening test the results of the hair were 

reported as negative indicating that the specimen did not present test results 

sufficient to meet the preliminary drug test cut-off level.

8. When considered as a follow-up or confirmatory test the cut-off level for a 

hair drug test is not applicable for determining whether the specimen tested is 

positive for a dangerous drug. 

9. When considered as a follow-up or confirmatory test, Respondent’s hair 

specimen confirmed the presence of cocaine metabolites.

10. Respondent failed to present persuasive evidence sufficient to rebut the 

evidence presented by the Coast Guard showing that he has been a user of 

dangerous drugs as shown by a positive drug test.
31

11. Accordingly, the Coast Guard has PROVEN by a preponderance of reliable, 

probative, and credible evidence that on or about May 28, 2015, Respondent 

was a user of or addicted to dangerous drugs.

V. SANCTION

The authority to impose sanctions at the conclusion of a case is exclusive to the 

ALJ. Appeal Decision 2362 (ARNOLD) (1984). Title 46 C.F.R. § 5.569 provides the 

Table of Suggested Range of Appropriate Orders (Table) for various offenses. The 

purpose of this Table is to provide guidance to the ALJ and promote uniformity in orders 

rendered. Appeal Decision 2628 (VILAS) (2002), aff’d by NTSB Docket ME-174. 

However, the regulations and CDOAs provide binding authority requiring a sanction of 

revocation for certain violations. 

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

drugs, revocation of all Coast Guard issued licenses, documents, or other credentials is 

the appropriate sanction unless cure is proven. See 46 U.S.C. § 7704(c); 46 C.F.R. § 

5.569; Appeal Decision 2535 (SWEENEY) (1992). 

Here, the Coast Guard has proven by a preponderance of reliable, probative and 

credible evidence that Respondent was a user of or addicted to dangerous drugs. 

Therefore, the appropriate sanction is REVOCATION.

The Court is constrained by the regulations and binding precedent to order 

revocation when use of dangerous drugs is proven even if a substantial period of 

suspension with mandatory testing might have otherwise been considered. The evidence 

of outstanding performance and favorable comment from the Master and Chief Engineer 

and shipmates along with other materials submitted in support of Respondent and 
32

Respondent’s past work history indicates he should be considered for administrative 

clemency and should be eligible for credentials following proof of cure pursuant to 

SWEENEY and its progeny. 33 C.F.R. § 20.904; 46 C.F.R. § 5.901(d).

WHEREFORE,

VI. ORDER

IT IS HEREBY ORDERED, Respondent’s Merchant Mariner Credential 

Number 000284890, and all other valid licenses, documents, and endorsements issued by 

the Coast Guard to Respondent, Daniel James Argast, are REVOKED.

IT IS FURTHER ORDERED, upon service of this Order, Respondent shall 

forthwith surrender his credentials and all other valid licenses, documents, and 

endorsements issued by the Coast Guard to the United States Coast Guard, Mr. James 

Staton, 200 Granby Street, Suite 700, Norfolk, Virginia.

PLEASE TAKE NOTICE, within three (3) years or less, Mr. Argast 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 the individual:

(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.
33

See generally 33 C.F.R. § 20.904; 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, service of this Decision on the parties 

and/or parties’ representative(s) serves as notice of appeal rights set forth in 33 C.F.R. §§ 

20.1001 – 20.1004. Attachment D.

__________________________________________________

Michael J. Devine

Administrative Law Judge

U.S. Coast Guard 

Date: 

July 07, 2016
34

ATTACHMENT A 

WITNESS AND EXHIBIT LISTS

WITNESS LISTS

Coast Guard Witnesses

1. Eudell Walker

2. Francis Cunningham

3. Captain Thomas Giudice

4. Chief Mate John French

5. Doctor Michael Smith

6. Doctor Jerome Cooper 

7. Doctor Thomas Cairns

Coast Guard Exhibits

CG-01 Signed Drug Free Workplace Agreement

CG-02 Memorandum of Agreement

CG-03 CIVMAR Drug Free Workplace Program

CG-04 MSC SMS Drug Testing Excerpt

CG-05 MSC Drug Free WKPL Collection Site Coordinator Training

CG-06 Collector Training Certificate of Completion

CG-07 MSC Navy Specimen Collection Checklist

CG-08 CCF

CG-09 Collection Kit

CG-10 CCF – Collectors Copy

CG-11 FedEx Forms

CG-12 MRO Lab Results Report

CG-13 E-mails

CG-14 DHS Report of Marine Casualty
35

CG-15 Federal Register SAMSHA Cert List

CG-16 Laboratory Litigation Package

CG-17 Photos of Specimen Bottles

CG-18 CV Dr. Jerome Cooper

CG-19 Federal CCF MRO Copy

CG-20 MSC SMS prior version

CG-21 CV Doctor Thomas Cairns

CG-22 Certification of Psychemedics 

CG-23 Worklist 

CG-24 Summary Results Psychemedics

Respondent Witnesses

1. Michael Hussey

2. Lisa Wasson

3. Brendan Marron

4. Barron Von Garvey

5. Judge Robert Holdman

6. Daniel Argast

Respondent Exhibits

Exhibit A Department of Health and Human Services Handbook

Exhibit B Captain Giudice Character Reference

Exhibit C Resume Michael Hussey

Exhibit D Michael Hussey Merchant Mariner Credential

Exhibit E Character Reference From Brendan Marron

Exhibit F Resume/Bio Judge Holdman

Exhibit G Performance Evaluations

Exhibit H Character Reference Chief Engineer Brian Muir
36

Exhibit I D.R.S. Negative Results (Hair Follicle Test Report)

Exhibit J LabCorp Website Info. Hair Drug Testing
37

ATTACHMENT B

STIPULATION AND OFFICIAL NOTICE

Stipulation

Stipulation – On Day 2 of the hearing the parties stipulated that the Safety 

Management Procedures (for Post-Accident Testing) for both CG-04 and CG-20 

were the same. TR Vol. 2 at 4-7.

Official Notice (33 C.F.R. § 20.806) is taken of:

(1) Memorandum of Agreement Between Commander Military Sealift Command 

and U.S. Coast Guard dated July 30, 2013 (Admitted as CG-02) TR Vol. 1 at 

23-26.

(2) 46 U.S.C. 7704. TR Vol. 1 at 287. 
38

ATTACHMENT C

Rulings on Proposed Findings of Fact 

and conclusions of law

RULINGS ON USCG PROPOSED FINDINGS OF FACT

1. Respondent’s current license, No. 000284890, was issued on February 3, 2015 

and expires on February 3, 2020. At all times relevant to this proceeding, the 

Respondent was the holder of a Coast Guard-issued credential. (Transcript of 

Record (“TR”) Vol. I at 6; TR Vol. II at 165)

ACCEPTED as provided in the Decision and Order.

2. Respondent admitted to the jurisdictional allegations of the Amended Complaint. 

(TR Vol. I at 9; Answer to the Amended Complaint, para. 1, dtd 21 Oct 2015)

ACCEPTED as provided in the Decision and Order.

3. Respondent admitted to Factual Allegations 3 and 8 of the Amended Complaint; 

in that: “3) The Respondent signed a Drug Testing Custody and Control Form for 

providing specimen ID# 1339504” and “8) Use of a dangerous drug is a violation 

of 46 U.S.C § 7704 as further defined by 46 C.F.R. 5.35.” (TR Vol. I at 9; 

Answer to the Amended Complaint, para. 2, dtd 21 Oct 2015)

ACCEPTED as provided in the Decision and Order.

4. The steamship, USNS MERCY, is a hospital ship operated by MSC. (TR Vol. I 

at 125)

ACCEPTED as provided in the Decision and Order.

5. On May 27, 2015, Respondent was serving aboard the USNS MERCY as the 

Second Engineer and throttleman. (TR Vol. I at 135; Vol. II at 80-81)

ACCEPTED as provided in the Decision and Order.

6. On May 27, 2015, the USNS MERCY departed Pearl Harbor, HI, with the 

Respondent as the throttleman. During its departure evolution, the vessel was 

involved in a marine casualty when it allided with the boat landing platform of the 

USS ARIZONA Memorial. (CG-14; TR Vol. I at 126)

ACCEPTED as provided in the Decision and Order.
39

7. The USNS MERCY’s rudder made contact with and rubbed the dock, causing 

damage to the boat landing platform of the USS ARIZONA Memorial. (TR Vol. 

I at 129, 137)

ACCEPTED as provided in the Decision and Order.

8. On the day of the allision, as well as on May 28, 2015, the Master of the USNS 

MERCY, Captain Thomas Giudice, was unsure of the exact amount of damage to 

both the platform and his vessel, but determined that the potential for $10,000 or 

more in damage existed. (TR Vol. I at 137; CG-13)

ACCEPTED as provided in the Decision and Order.

9. Mr. Jack Taylor, the Director of MSC and Commander, Military Sealift Fleet 

Support Command (“MSFSC”), discussed the allision with Captain Giudice and 

provided his concurrence and direction that post-accident drug testing should be 

conducted for all involved personnel and crewmembers. (TR Vol. I at 94-99, 130, 

138-139 and 149; and CG-13)

ACCEPTED as provided in the Decision and Order.

10. As the throttleman, Respondent was determined by Captain Giudice, as well as 

MSC, to be one of nine involved persons who were in positions that warranted 

drug testing. (TR Vol. I at 96-97 and 130-132)

ACCEPTED as provided in the Decision and Order.

11. At the time when the drug test was ordered, Respondent knew that he was subject 

to MSC’s drug testing policy and that he may be subject to testing as a result of a 

safety mishap. (TR Vol. I at 18; TR Vol. II at 113-115; and CG-01)

ACCEPTED as provided in the Decision and Order.

12. On May 28, 2015, Respondent reported to Chief Mate John French’s 

office/stateroom to provide a urine sample as directed. (TR Vol. I at 183)

ACCEPTED as provided in the Decision and Order.

13. Respondent’s sample, under chain of custody number 1339504, tested positive for 

cocaine. (TR Vol. I at 222, 275; CG-12)

ACCEPTED as provided in the Decision and Order.
40

14. From August 3, 2012 to the present, which includes the date of the urinalysis on 

May 28, 2015, Respondent was a Civilian Mariner (“CIVMAR”) employee of 

MSC. (TR Vol. II at 70) 

ACCEPTED as provided in the Decision and Order.

15. CIVMARS are federal employees holding Coast Guard-issued credentials,

employed by MSC, and are subject to the Navy’s Drug Free Workplace Program 

(“DFWP”). (TR Vol. I at 22-25; CG-04) 

ACCEPTED as provided in the Decision and Order.

16. MSC employees are not subject to Department of Transportation (“DOT”) drug 

testing protocols. (See Note on page 1 of CG-04)

ACCEPTED IN PART AND REJECTED IN PART. MSC employees are 

not subject to DOT testing protocols as they concern post-casualty drug 

testing. 

17. The Coast Guard and MSC have entered into a Memorandum of Agreement 

whereby the Coast Guard recognizes that CIVMARs are subject to the Navy’s 

DFWP to avoid subjecting them to multiple and redundant federal drug testing 

standards. (TR Vol. I at 22-25; CG-02; See Note on page 1 of CG-04)

ACCEPTED as provided in the Decision and Order.

18. Instead of the DOT drug testing procedures identified in 49 C.F.R. Part 40, the 

Navy’s DFWP adopts the Department of Health and Human Services (“HHS”) 

Mandatory Guidelines for Federal Drug Testing Programs. (CG-03 at 2-1(b))

ACCEPTED as provided in the Decision and Order.

19. The DOT drug testing procedures in 49 C.F.R. Part 40 essentially mimic the 

guidelines established by HHS. The analysis of the specimen is the same, the 

review process is the same, and the same Federal Drug Testing Custody and 

Control Form is used. (TR Vol. I at 255, 270-271)

NEITHER ACCEPTED NOR REJECTED. The regulations speak for 

themselves and questions of law are for the court. 

20. DOT and HHS drug tests only differ in that the DOT spells out who may collect a 

sample and how the sample is to be collected. Additional differences include how 

the two agencies treat invalid tests. The testing itself, however, is the same. (Id.)

NEITHER ACCEPTED NOR REJECTED. The regulations speak for 

themselves and questions of law are for the court. 
41

21. MSC implements the Navy’s DFWP by way of its company policy, specifically 

the Civilian Marine Personnel Instruction (“CMPI”) No. 792. (CG-03, para. 1-1)

ACCEPTED as provided in the Decision and Order.

22. CMPI No. 792 authorizes the MSFSC (MSC Director) to tailor the drug testing 

and collection procedures to the CIVMAR workforce and the shipboard 

environment. (CG-03 at 2-1(b))

ACCEPTED as provided in the Decision and Order.

23. MSC tailored and refined its drug testing and collection procedures by way of its 

MSC Government Operations Safety Management System (“SMS”). 

Specifically, the “Post-Accident/Incident or Unsafe Practice Drug and Alcohol 

Testing” document is the portion of the SMS that guides MSC’s Masters on how 

to conduct drug testing operations in certain situations, including post-accident. 

(TR Vol. I at 31-32; CG-04 at 1-3)

ACCEPTED as provided in the Decision and Order.

24. The SMS directs that urine drug testing shall be performed with the concurrence 

of the MSFSC Director, or his delegate, when a mishap or unsafe practice occurs 

which results in . . . damage equal to or above $10,000.00. (CG-04, at 2, para. 

3.3)

ACCEPTED as provided in the Decision and Order.

25. The SMS directs the Master to use the flow chart on page three of the document 

to assist in identifying when drug testing is authorized. Captain Giudice 

consulted the flow chart to aid in his decision making. Additionally, Section 3.3.2 

of the same document directed him to arrange drug testing (urine) of all involved 

persons immediately after approval from MSC is received. (TR Vol. I at 137; CG04 at 2, para. 3.3.2)

ACCEPTED as provided in the Decision and Order.

26. The decision whether to test individuals must be made and completed within 32 

hours of the incident. (CG-04 at 3)

ACCEPTED as provided in the Decision and Order.

27. Section 4-4 of CMPI 792 directs that persons reasonably suspected of having 

caused or contributed to an accident with more than $10,000 in damage may be 

subject to drug testing. (CG-03 at 20)

ACCEPTED as provided in the Decision and Order.
42

28. Captain Giudice, in consultation and with concurrence with Mr. Taylor and Mr. 

Cunningham (Mr. Taylor’s delegate), decided to expand the initial drug testing 

collection pool to include individuals filling positions that were reasonably 

suspected to have contributed to the accident. As such, they chose individuals 

that filled positions in the Engine Room Control (“identified on the transcript as 

“ERC”), after steering (or “aft steering”), and those on the bridge. (TR Vol. I at 

157; CG-13)

ACCEPTED as provided in the Decision and Order.

29. The Respondent was serving as the throttleman in the ERC at the time of the 

allision and that position is an integral part of the movement of a vessel such as 

the USNS MERCY. The throttleman executes the Captain’s commands, 

ultimately controlling the movement of the vessel. (TR Vol. I at 132-135; CG-13)

ACCEPTED as provided in the Decision and Order.

30. Captain Giudice selected Chief Mate John French to conduct the urine collection 

for the drug testing. Drug test collections were the collateral duty of the Chief 

Mate, the Captain’s most senior and experienced crewmember at the time. (TR 

Vol. I at 36-37, 125-126, 161-162)

ACCEPTED as provided in the Decision and Order.

31. MSC guidelines direct medical service officers (“MSO’s”) to serve as drug test 

collectors on the majority of their ships. However, on the USNS MERCY, as 

well as other vessels where there is no MSO assigned on board, the collection 

duties are assigned to the Chief Mate. (TR Vol. I at 36-37)

ACCEPTED as provided in the Decision and Order.

32. Chief Mate French was trained and certified as a Collection Site Coordinator 

(CSC) in May 2010. (TR Vol. I at 69-70)

ACCEPTED in PART. Chief Mate French had received training and 

certification as a collection site coordinator before May 2010.

33. MSC relies on the authority of CMPI 792 section 2-1(b) to tailor the CIVMAR 

drug testing program to fit the unique shipboard operating environment. (TR Vol. 

I at 29-30, 69, 85, 101-102; CG-03 at paragraph 2.1B)

ACCEPTED as provided in the Decision and Order.

34. MSC operates 60 ships and employs approximately 5200 CIVMAR personnel. 

Due to fleet operations, including the forward-deployment of vessels around the 

world, MSC management has granted a waiver from the standard 5-year CSC re-
43

certification requirements, as it is not feasible to maintain that frequency of 

training. (TR Vol. I at 69-70)

ACCEPTED as provided in the Decision and Order.

35. Chief Mate John French understood his job as a collector, as he had participated 

in the collection of approximately 20 samples prior to his collection duties on 

May 28 2015. (TR Vol. I at 179, 204)

ACCEPTED as provided in the Decision and Order.

36. MSC provides a Specimen Collection Checklist for the collectors and donors to 

follow and use for each collection. For each stage of the process, the collector 

and donor enter their initials indicating that the process was properly completed. 

(CG-07)

ACCEPTED as provided in the Decision and Order.

37. The Respondent signed his initials indicating that proper procedures were 

followed for each step of the collection process, from providing the sample to 

properly sealing the sample packaging. (CG-07)

ACCEPTED as provided in the Decision and Order.

38. The samples remained in Chief Mate French’s office/state room until the vessel 

reached its next sufficient mailing post. From there, they were shipped via 

FedEx to the SAMHSA certified testing laboratory. (TR Vol. I at 60, 189, 201)

ACCEPTED as provided in the Decision and Order.

39. Any delay from the time of donation to the time of delivery, along with any time 

spent unrefrigerated, would have caused a more favorable result for the 

Respondent. (TR Vol. I at 231-232)

ACCEPTED as provided in the Decision and Order.
44

40. On June 18-19, the Respondent’s sample was tested at the United States Army 

Forensic Toxicology Drug Testing Laboratory at Fort Meade, MD. The 

laboratory litigation package for sample number 1339504 shows that the sample 

was tested without complication using Gas Chromatography-Mass Spectrometry 

(“GCMS”). (TR Vol. I at 230-231; CG-16)

ACCEPTED as provided in the Decision and Order.

41. Analysis of Respondent’s sample showed positive results for cocaine metabolites 

at a level of 253 ng/ml. Dr. Cooper, the Medical Review Officer (MRO), 

confirmed the positive laboratory results. (TR Vol. I at 274-275; CG-19)

ACCEPTED as provided in the Decision and Order.

42. On August 6, 2015, 70 days after being tested on the USNS MERCY, Respondent 

voluntarily submitted to a hair test. A hair test has the ability to “look back” 

approximately 90 days to assess levels of drug use within that timeframe. 

Respondent received a negative hair test result. (TR Vol. II at 103, 133; 

Respondent’s Exhibit I)

ACCEPTED as provided in the Decision and Order.

43. Psychemedics was the testing lab for the hair sample submitted by the 

Respondent. The lab tests hair for three situations; 1) a first time collection, 

which uses cutoff values to determine the level of metabolite in a sample, 2) a 

confirmation screen, which uses cutoff values to verify a positive or negative 

result and the level of metabolite in a sample, and 3) a follow-up test which is 

tested without regard to cutoffs for the sole purpose of confirming the mere 

presence of a drug metabolite. (TR Vol. II at 130-131, 144-145, 160; CG-23_For 

Id and CG-24_For Id)

ACCEPTED as provided in the Decision and Order.

44. A cut off value is a standard set by the Food and Drug Administration based on a 

general overview of available equipment. Psychemedics abides by applicable 

industry standards, but the laboratory’s processes and equipment are capable of 

detecting the presence of dangerous drugs at limits much lower than that which is 

set by the cut-off. (TR Vol. II at 134, 146; CG-24_For Id)

ACCEPTED as provided in the Decision and Order.
45

45. Respondent’s hair test sample, which was collected by LabCorp and sent to 

Psychemedics for analysis, was treated by Psychemedics as a first time collection 

because Respondent did not identify the prior history of a positive urinalysis. 

Psychemedics, therefore, applied a cut-off value to the analysis. (TR Vol. II at 

162-163)

ACCEPTED in PART as provided in the Decision and Order.

46. Although Psychemedics applied a cut-off value, the lab found that cocaine 

metabolites were present in Respondent’s sample, and would have triggered a 

presumptive positive designation if the test was analyzed as a follow-up test. (TR 

Vol. II at 162-163)

ACCEPTED in PART as provided in the Decision and Order.

47. The data from the initial screening indicated a detectable amount of cocaine 

metabolites nearly equal to the lower control value inserted by Psychemedics for 

instrument calibration testing. (TR Vol. II at 135; CG-24_For Id)

ACCEPTED as provided in the Decision and Order.

48. If Respondent’s hair test had been submitted to Psychemedics as a follow-up test, 

the result would have been POSITIVE for cocaine. (TR Vol. II at 160)

ACCEPTED as provided in the Decision and Order.
46

RULINGS ON USCG PROPOSED CONCLUSIONS OF LAW

1. Cocaine is a “dangerous drug” as contemplated by 46 U.S.C. § 7704 (c). See, 

e.g., See Appeal Decision 2668 (Merrill) (2007).

ACCEPTED as provided in the Decision and Order.

2. At all times relevant, Respondent was the holder of issued U.S. Merchant Mariner 

Credential, No. 000284890.

ACCEPTED as provided in the Decision and Order.

3. A positive test for dangerous drugs indicates that Respondent is a user of a 

dangerous drug.

ACCEPTED in Part as provided in the Decision and Order. Final 

determinations on evidence are for the Court. 

4. Use of a dangerous drug is a violation of 46 U.S.C § 7704 as further defined by 

46 C.F.R. 5.35, for which the only appropriate sanction is Revocation.

ACCEPTED in Part. The Regulations speak for themselves. Application of 

the law is stated in the Decision and Order. 

5. Respondent’s subsequent hair test provides further ancillary proof that 

Respondent was, in fact, a user of cocaine on more than one occasion.

ACCEPTED in PART as provided in the Decision and Order. 
47

Rulings on Respondent’s Proposed Findings of Fact

1. At all relevant times, the Respondent was a holder of Merchant Mariner 

Document Number 00284890. (Amended Complaint, Answer to the Amended 

Complaint and Tr. 6:4-10; Tr. 165:11-15 & Tr. 9:12-14).

ACCEPTED as provided in the Decision and Order.

2. In May of 2015, the Respondent was employed as a Second Engineer on board 

the U.S.N.S. MERCY by the Military Sealift Command. (HD1 Tr., 73:21-25 & 

74:1-7). 

ACCEPTED as provided in the Decision and Order.

3. On May 28, 2015, Chief Mate John French collected a urine specimen from the 

Respondent for post accident drug testing. (HD1, TR. 194:7-11 and HD2, Tr. 87-

91). 

ACCEPTED as provided in the Decision and Order.

4. On May 28, 2015, Chief Mate John French was not qualified to act as a urine 

specimen collector for post accident drug testing. (HD1, Tr. 73:1-11 and Vol 1, 

Tr. 73:8-11 HD1, Tr. 191:8-11). 

REJECTED as provided in the Decision and Order. 

5. On May 28, 2015, Chief Mate John French was not experienced enough to be 

collecting urine specimens for post accident drug testing. (HD1, Tr. 179:6-10 and 

Tr. 192:18-20).

REJECTED as provided in the Decision and Order. 

6. On May 28, 2015, Chief Mate John French did not collect the urine specimens for 

post accident drug testing in accordance with proper procedures. HD2, Tr.: 44:17-

25 and 45:1-25 HD2, Tr. 90:3-5.

ACCEPTED in PART and REJECTED in PART as provided in the Decision 

and Order.

7. From May 28, 2015 until June 11, 2015, while the U.S.N.S. MERCY was at sea 

and sailing from Pearl Harbor to Fiji, a proper chain of custody and control was 

not maintained for the Respondent’s urine sample and 17 other urine samples that 

had been collected by Chief Mate John French. (Tr. HD1, Tr. 59: 17-20, Tr. 82:7-

11 and HD1, Tr. 200). 

REJECTED as provided in the Decision and Order. 
48

8. The urine sample that was allegedly provided by the Respondent was reported to 

have tested positive for the presence of cocaine metabolites. 

ACCEPTED as provided in the Decision and Order. 

9. The Respondent has denied that he has ever used cocaine. (HD2, Tr. 113). 

ACCEPTED as provided in the Decision and Order.

10. On August 6, 2015, the Respondent provided a sample of his hair for drug testing 

to LabCorp. (Exhibit H). 

ACCEPTED as provided in the Decision and Order.

11. On August 10, 2015, a reputable MRO, D., Neil Dash, certified that the 

Respondent’s hair sample tested negative for any drugs. (Exhibit H). 

ACCEPTED in Part as provided in the Decision and Order.

12. The results of the hair test indicate that it is improbable that the Respondent has 

used cocaine prior to submitting a urine sample. .(Exhibit H). 

REJECTED as provided in the Decision and Order. 

13. Numerous witnesses testified on behalf of the Respondent’s good character, and 

the testimony of the character witnesses indicate that it is improbable that the 

Respondent has ever used any dangerous drugs, including cocaine. (HD2, Tr. 11-

13, Tr. 24-28, Tr. 33-38, Tr. 42-48, and Tr. 58-64). 

ACCEPTED in Part and Rejected in part. The weight of any evidence is a 

matter reserved for the Court. 
49

RULINGS ON RESPONDENT’S PROPOSED CONCLUSIONS OF LAW

1. The Coast Guard failed to provide sufficient evidence that Respondent’s positive 

drug test met all of the elements of a prima facie case to invoke the regulatory 

presumption that the Respondent is a user of dangerous drugs.

ACCEPTED in Part. Application of law and regulation is provided in the 

Decision and Order. 

2. The Coast Guard failed to provide sufficient evidence that Respondent’s positive 

drug test met the elements necessary to prove a violation of 46 U.S.C. 7704 (c).

REJECTED as provided in the Decision and Order

3. The Coast Guard has NOT PROVED by a preponderance of reliable, probative, and 

credible evidence that the Respondent was a user of dangerous drugs on or about 

May 28, 2015.

REJECTED as provided in the Decision and Order. Findings regarding the 

charged violations are addressed in the Decision and order.
50

ATTACHMENT D

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 --

(i) Basis for the appeal;

(ii) Reasons supporting the appeal; and

(iii) Relief requested in the appeal.
51

(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.