UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs 

THOMAS HASTINGS 

Respondent 

Docket Number CG S&R 01-0734 

CG Case No. PA 01 002040 

DECISION AND ORDER 

Issued: June 12, 2002 

Issued by: Edwin M. Bladen, Administrative Law Judge 

Preliminary Statement 

This proceeding is brought pursuant to the authority contained in 46 USC§§ 

7703, 7704; 5 USC§§ 551-559; 46 CFR Parts 5 and 16, and 49 CFR Part 40. 

Respondent, Thomas Hastings in a two count complaint was charged by the Coast 

Guard, first with being a user of a dangerous drug having taken a pre-employment drug 

test in which the result was positive for cocaine, and second with misconduct because on 

October 9, 2001, he failed to join his vessel and report and perform his required duties 

aboard the CSX PACIFIC (D612085). 

Respondent answered the complaint and admitted all jurisdictional and factual 

allegations respecting the two charged violations. He demanded a hearing characterizing his 

Decision and Order- 1 
request as one to determine the sanction to be imposed. Subsequently on February 11,2002 

in Honolulu, Hawaii a hearing was held as requested by Respondent. 

Respondent appeared at the hearing pro se. The Coast Guard was represented by 

the Senior Investigating Officer and an Investigating Officer. No witnesses were 

presented at that time. As required by 33 CFR § 20.601(a)(2), and 33 CFR § 

20.601(c)(2), the Coast Guard had previously filed the exhibits intended for the hearing 

on the merits of the complaint. 

Based upon the Respondent's answer to the complaint [including the filed Coast 

Guard exhibits] in which he fully admitted all of the factual and jurisdictional allegations, 

this judge found that the Coast Guard met is initial burden of proof and determined, that a 

regulatory rebuttable presumption arose that Respondent was a user of dangerous drugs. 

See, 46 USC§ 16.201(b); Appeal Decisions 2592 (Mason,· 2584 (Shakespeare); 2560 

(Clifton). 1 

Respondent, however, inconsistent with his written answer, strongly asserted he 

was not then, and has never been, a user of dangerous drugs. He says he admitted to the 

positive outcome of the drug test because he had in fact experimented with or taken, one 

time only, some cocaine given him by friends to alleviate his depression and pain as a 

result of very recent prostrate cancer surgery. He pointed out that drug test was taken 

1 The Coast Guard has brought these cases charging a mariner is a user of a dangerous drug under 46 USC 

§ 7704 (c) based solely upon the results of single chemical test by urinalysis. Currently, 46 CFR § 16.201 

(b) provides that one who fails a chemical test for drugs under that patt will be presumed to be a user of 

dangerous drugs. In turn, 46 CFR § 16.105 defines jail a chemical test for dangerous drugs to mean that a 

Medical Review Officer (MRO) reports as positive the results of a chemical test conducted under 49 CFR § 

40. In other words, 46 CFR Patt 16 establishes a regulatory presumption on which the Coast Guard may 

rely, provided the Coast Guard can satisfactorily show that a 49 CFR § 40 chemical test of a merchant 

mariner's sample or specimen was reported positive by a MRO. 

Decision and Order - 2 
shortly after he had been discharged from the hospital. The Coast Guard IO has not 

disputed these facts. 

Given the Respondent's inconsistent assertions, his insistence upon being heard 

on his claims, and because he has appeared pro se, due process considerations have 

dictated that Respondent be permitted to either rebut this regulatory presumption or in the 

alternative demonstrate cure as the governing statute provides. 

In that respect, however, Respondent had not brought to the February 11, 2002 

hearing either a witness, or other evidence which would have supported his claimed 

defenses. Recognizing this, the Coast Guard IO supported a continuance of the hearing 

so that Respondent could present his evidence in support of his claims. 

This matter was then adjourned until April1, 2002. Prior to convening on that 

date, we were informed by the IO that Respondent was still unable to secure a supporting 

witness since he had been under follow-up treatment for the prostrate surgery. 

Respondent had advised the Coast Guard IO he needed additional time. The Coast Guard 

then supported an additional30-day adjournment2 to allow Respondent to secure the 

needed evidence. The matter was again adjourned until May 6, 2002. 

On May 6, 2002 the adjourned hearing was reconvened by telephone between the 

Coast Guard Marine Safety Office, 433 Ala Moana Blvd, Honolulu, Hawaii and the 

2 Respondent was served with the Order of Continuance by Certified Mail, Return Receipt 

in care of the Seafarer's Union, Honolulu, Hawaii. Respondent is a member of the union and had 

previously advised he communicates with the union on a regular basis. Otherwise, the record shows that 

Respondent claims to be homeless but also claims to communicate from time to time through email at 

Internet cafes. Attempts to provide copies ofnoticcs and orders by attachments to email messages have 

proved fruitless. Nevertheless, Respondent has consistently appeared at scheduled hearings, communicated 

and cooperated with the Honolulu Coast Guard Marine Safety Office and has been apprised of the various 

orders and notices in that manner as well. 

Decision and Order- 3 
chambers of this Judge in the Jackson Federal Building, Seattle, Washington. A court 

reporter was engaged to record the telephonic hearing. 

Representing the Coast Guard was: L T William N. DeLuca, Investigating Officer. 

Respondent Thomas Hastings appeared ProSe. 

Respondent presented the following exhibits: 

RA --Letter from John V. Mickey, M.D. Respondent's treating physician. 

RB -- Results from certain private arranged drug tests 

RC -- Respondents Medical file. 

RD --Federal Drug Testing Custody & Control Form and Results. 

RE -- MRO Kusaka letter dated May 13,2002 

RF --Respondent's medical file? 

The Coast Guard had previously filed and thus offered the following exhibits: 

10-A --Coast Guard Merchant Mariners Document for Thomas Hastings. 

10-B-- Letter and Log from CSX Lines Notification of Misconduct. 

10-C -- MRO letter for positive drug test. 

10-D --Interview notes of Respondent Hastings by 10. 

The 10 only had a brief opportunity to examine Respondent's three exhibits prior 

to their offer that day. The Coast Guard 10 requested additional time to review the 

material and speak to Dr. Mickey regarding his opinion and credentials as a Medical 

Review Officer. 

Consequently, the hearing was again adjourned until Tuesday, May 14,2002 at 11:00 

PST for the purposes of receiving any further information or evidence from the 10, a 

Medical Review Officer and Respondent. 

Decision and Order - 4 
Subsequently, on May 14, 2002 the hearing was again reconvened. Respondent 

appeared pro se and brought with him a letter from a Medical Review Officer based at 

the Straub Clinic. The letter was marked as Exhibit RE. The Coast Guard agreed with 

its admission as evidence. 

From the totality of the record evidence the following facts are shown. 

Finding of Fact 

1. Respondent Thomas Hastings holds a Merchant Mariners Document issued by 

the Coast Guard which authorizes him to serve as a Junior Engineer, 

Machinist, Fireman-Water tender, Oiler, Pump man, Lifeboatman, Ordinary 

Seaman and in the Steward's Department. [Exhibit IO-A; Complaint & 

Answer~2t 

2. Respondent was diagnosed in July, 1999 with Prostrate cancer and was 

admitted to Straub Clinic and Hospital on July 23, 1999 for surgery to 

alleviate that condition. [Exhibit R-C] 

3. Respondent was discharged from the Straub Clinic and Hospital on July 27, 

1999 with Foley catheter intact along with a small supply of Vicodin and 

Peri-Colace. [Exhibit R-C (Discharge Summary)] . 

4. Respondent experienced pain and mild depression as a result of the surgery. 

[Transcript 2/11/02 pp. 20 ff]. 

3 The file is noted as confidential medical information and not subject to disclosure. 

4 The citation to Complaint & Answer~ will be hereafter noted as C & A ~. 

Decision and Order - 5 
5. On Wednesday, August 4, 1999, Respondent was offered and he inhaled some 

cocaine in an effort to relieve his pain and depression he was experiencing 

from the surgery. [Transcript 2/11/02 pp. 21 ff; Exhibit 10-D]. 

6. On Friday, August 6, 1999, the Respondent took a pre-employment physical, 

which included a Department of Transportation sanctioned drug test to detect 

use of certain specified dangerous drugs. [C & A 'Ill]. 

7. At the time of the drug test Respondent was still in post-operative care by his 

physician, Stephen Chinn, MD (urologist) with Foley Catheter still intact. He 

was seen by this physician on 8/9/99 for removal of the catheter and the status 

in follow-up showed post radical retropubic prostatectomy with removal of 

lymph nodes vesicles and margins. [Exhibit R-C; Report 8/9/99]. 

8. The urine specimen provided by Respondent on August 6, 1999 was collected 

by Kathleen N. A wayu of Straub Occupational Health Services in Honolulu, 

Hawaii [C & A '1!2] 

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

the time he provided his urine specimen [C & A '1!3] 

10. The Respondent's specimen was transmitted to and analyzed by Quest 

Diagnostics using Enzyme Immunoassay and Gas Chromatography/Mass 

Spectrometry procedures approved by the Department of Transportation [C & 

A '1!4]. 

11. The specimen was determined to be positive for Cocaine [Exhibit IO-C; C & 

A '1!5]. 

Decision and Order- 6 
12. A medical Review officer, J. T. Plander M.D. of Greystone Health Sciences 

Corporation interviewed Respondent on August 16, 1999 and determined as a 

result that the test was a valid test and confirmed the positive result [Exhibit 

IO-C; C & A~ 6]. 

13. Respondent informed Dr. Plander of his prostrate cancer surgery about 10 

days prior to providing his urine specimen. Dr. Plander made no further 

inquiry regarding any cocaine containing drugs which may have been used in 

connection with the surgery. [Transcript May 14, 2002 pp: 15-16] 

14. Respondent was due to join the vessel CSX PACIFIC (D612085) on October 

9, 2001 but failed to do so report and perform his required duties as specified 

in his MMD [Exhibit IO-B, Exhibit IO-D; C & A~ Misconduct]. 

15. Respondent deposited his Merchant Mariner's Document with the Coast 

Guard on November 28, 2001. 

16. Respondent has had drug tests in July, 2001, April, 2002, and May, 2002 each 

using Enzyme Immunoassay methodology all of which have been negative for 

any illegal or dangerous drug. [Exhibit RD pp 1-3]. 

17. A Medical Review Officer, Michael N. Kusaka, MD has reviewed the drug 

tests and has determined that Respondent is drug free, there is no evidence 

Respondent is a user of illegal drugs, and has opined Respondent can work in 

the maritime trades. [Exhibit RE] 

18. Respondent is under continuing medical observation and treatment for any 

lingering or reoccurring evidence of his prostrate cancer. [Exhibit RF] 

Decision and Order- 7 
DISCUSSION 

This matter presents two questions. Can Respondent rebut the regulatory 

presumption arising from the single positive drug test with an opinion· supplied by a 

Medical Review Officer that he is not a user of illegal or dangerous drugs such as 

cocaine. 

The second is whether the opinion of the Medical Review Officer together with 

the results of drug tests over a two year period, and Respondent's deposit of his 

credentials since November 28, 2001 and his continuing medical treatment are sufficient 

evidence of cure which can be used in mitigation to support the issuance of an order less 

than revocation. 

Turning to the first issue, I said in my earlier Interim Order, there were four 

methods of rebuttal of the regulatory presumption. The fourth said a respondent may 

choose to present evidence the respondent was not a user of dangerous drugs. I suggested 

that such evidence could come from a Medical Review Officer coupled with the 

successful completion of a drug abuse rehabilitation program and the disassociation with 

drugs for at least one year. I cited Appeal Decision 2535 (Sweeney) and Commandant v. 

Wright, NTSB Order No. EM-186 (12/30/99). 

After further consideration and review of the Sweeney decision and the legislative 

histor/ of 46 USC § 7704( c). I must conclude that the fourth method of rebuttal 

erroneous for the reasons stated below. 

51See House Report No. 338, 98111 Congress, 1st Session (1983) cited in Appeal Decision 2535 (Sweeney) at 

p. 6 and also found in Title 46, United States Code Annotated, Legislative History for House Report No. 

98-338 at p. 577 [Pamphlet] [West Group, 2001]. 

Decision and Order - 8 
The employment of the term user in 46 USC § 7704( c) presented the conundrum 

of whether the meaning of user was to be understood as it was so understood in 46 USC § 

239(c), the predecessor to 46 USC§ 7704(c). In sum, I viewed the term user in 46 USC 

§ 7704(c) to be ambiguous such that reliance upon its ordinary dictionary meaning(s) was 

not possible. Thus, I turned to the legislative history of 46 USC§ 239 which employed 

the term user in the manner then intended by Congress i.e., user essentially meant 

habitual addictive use. 

However, the later legislative history of 46 USC § 7704 revealed that Congress 

intended that my exploration of the legislative history of§ 239 should be avoided. The 

reporting committee said: 

... the interpretation of the maritime safety laws as 

codified and enacted by this bill will be based on the 

language of the bill itself. The bill, as reported, is based on 

that premise. There should therefore, be little or no 

occasion to refer to the statutes being repealed in order to 

interpret the provisions of this bill.6

[

6

J [emphasis supplied] 

More importantly, the Commandant, in Appeal Decision 2535 (Sweeney) formally 

interpreted 46 USC§ 7704(c) where he stated that an order issued by an Administrative 

Law Judge contravenes the operative law[§ 7704(c)] which mandates revocation upon a 

showing of use, unless cure is proven. The Commandant said: 

Unless and until46 U.S.C.§7704 is amended, where drug 

use is found proved, an order less than revocation will not 

be permitted to stand on review absent proof of cure, 

clearly reflected in the record and satisfactory to the 

Administrative Law Judge. 

This interpretation left me with the distinct understanding, the Commandant 

interpreted the word user in§ 7704(c) to mean something other than habitual use, i.e., 

6 See House Repott No. 98-338 at West Pamphlet, supra note 6 p. 586. 

Decision and Order- 9 
proof of even a one time use of an illegal drug is sufficient to establish a person is a user 

for the purposes of § 7704( c). Administrative Law Judges are bound by the appeal 

decisions of the Commandant. Thus, given this interpretation of§ 7704(c), together with 

the legislative direction to not look to the predecessor statute's history, my Interim Order 

allowing for a rebuttal of use by proving one is not a habitual user was in error. 

Moreover, the decision in Sweeney provided further instruction relevant to the 

matter presently under consideration here. There the Administrative Law Judge was also 

presented a letter from a Medical Review Officer which expressed the opinion that 

Sweeney was not addicted to dangerous drugs. Sweeney also provided the results of 

subsequent negative drug tests. The judge relying substantially on that information 

issued an order other than revocation. 

The Commandant on appeal reversed the order saying: 

The order issued by the Administrative Law Judge 

contravenes the operative law, 46 USC § 7704, which 

mandates revocation unless cure is proven. 

Notwithstanding the fact that Appellant subsequently tested 

negative for drug use and the statement of the Medical 

Review Officer that Appellant is "not addicted" to drugs 

(Respondent Exhibit C), the record fails to support even a 

colorable argument that Appellant has been cured of his 

drug use. 

All of this taken together leads me to the inescapable conclusion that I must reject 

the MRO opinion in this matter as proof Respondent is not a user of dangerous drugs. 

To the extent the Interim Order on this point is (or might be) read or interpreted as 

precedent that medical evidence of "cure" or rehabilitation can be used to rebut the 

presumption of use that Interim Order will be withdrawn. 

Decision and Order- 10 
This leads to the second issue and whether Respondent has dezywnstrated to my 

satisfaction he is cured so that an order other than revocation may be supported. 

The Coast Guard was given an opportunity to evaluate the MRO's opinion and has stated 

that they believe that in order for Respondent to show cure, he must also show he was 

free of drugs for at least one year and have undergone a rehabilitation program in that 

time period. This they point out Respondent has failed to show. Nevertheless, the 

Investigating Officer had no objection to the Medical Review Officer's evaluation and 

opinion, and expressed they do not have any strong objection to Respondent going to 

work. [Transcript 5/14/02, p. 9]. 

The one year non-association with drugs and related rehabilitation programs to 

which the IO makes reference is peculiarly associated with cure as pronounced in Appeal 

Decision 2535 (Sweeney). The Commandant emphasized the cure concept of the Sweeney 

decision in Appeal Decision 2583 (Wright): 

My decision in Appeal Decision2535 (SWEENEY) 

articulated a standard of cure, which if a mariner met, "and 

absent aggravating factors, would satisfy proof of cure. The 

two part Sweeney standard included successful completion 

of a bona fide drug abuse rehabilitation program and 

demonstration of complete non-association with drugs for a 

minimum of one year. (Emphasis added) 

However, in the appeal of Wright before the National Transportation and Safety 

Board, the Coast Guard took the position these Sweeney criteria were not inflexible 

requirements, but was guideline subject to evaluation in the context of determining the 

adequacy of proof of cure in a given case. See Commandant v. Wright, NTSB Order No. 

EM-186, note 12 at p. 8. I have not seen any statement the Coast Guard has renounced 

that position. 

Decision and Order - 11 
Respondent has undertaken efforts toward cure. He has undergone continuous 

medical care follow up for his prostrate cancer including taking drug tests. He has been 

evaluated by a Medical Review Officer. Respondent has obtained the relevant testimony 

of a qualified professional who had already conducted an evaluation and my continuance 

to secure such testimony was appropriate. Appeal Decision 2526 (Wilcox). In short, 

Respondent has demonstrated to my satisfaction substantial involvement in a 

rehabilitation effort but which has not lasted a full year especially since Respondent has 

deposited his MMD in November, 2001. Decision of the Vice Commandant on Review 

No. 18 (CLA}j. In substance, Respondent has had his MMD effectiv~ly suspended since 

November 28, 2001-just a little over six months. 

Lastly, based on his admission, Respondent engaged in an act of misconduct by 

failing to report join his vessel to report and perform required duties aboard the CSX 

PACIFIC (D612085). 

DECISION AND ORDER 

I find based solely upon the results of the positive drug test of August 6, 1999, 

Respondent is a user of dangerous drugs. I further find that Respondent cannot lawfully 

rebut the regulatory presumption based upon the opinion of a Medical Review 

Officer and the results of subsequent negative drug tests. 

I find, however, that Respondent has shown a substantial involvement in a 

rehabilitation effort toward cure including loss of credentials for six months, continuing 

medical treatment and observations, a favorable Medical Review Officer evaluation and 

several negative drug tests. 

Decision and Order- 12 
IT IS THEREFORE ORDERED, commencing on the date of this Decision and 

Order until November 30, 2002, Respondent shall participate in a random, unannounced 

drug testing program during which Respondent shall take three random drug tests 

conducted in accordance with the Department of Transportation procedures found in Title 

49 Code of Federal Regulations (CFR), Part 40, and obtain and file an updated Medical 

Review Officer's letter that continues to indicate Respondent is drug free and the risk of 

Respondent's subsequent use of dangerous drugs is sufficiently low to justify return to 

work. The MRO is Michael M. Kusaka, MD, Straub Health Works, Honolulu, Hawaii. 

IT IS FURTHER ORDERED, upon successful completion of this additional six 

month program as ordered Respondent's Merchant Mariners Document is SUSPENDED 

for the period of deposit commencing on November 28, 2001 and concluding on 

November 30, 2002. 

IT IS FURTHER ORDERED should Respondent fail to satisfactorily complete 

this additional six month program as ordered, his Merchant Mariner Document will be 

REVOKED. 

IT IS FURTHER ORDERED that misconduct having been proved, Respondent's 

Merchant Mariner's Document is SUSPENDED OUTRIGHT effective November 28, 

2001 to May 31,2002. 

IT IS FURTHER ORDERED, the Interim Order in this matter dated February 19, 

2002 is withdrawn. 

Decision and Order- 13 
Service of this Decision upon you serves to notify you of your right to appeal as 

set forth in 3 3 CPR Subpart J, § 20.1 00 1. (Attachment I) 

Dated: June 12, 2002 

Decision and Order- 14 

Edwin M Bladen 

Administrative Law Judge