·,·, 

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UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

ROBERT KEITH LANDRY 

Respondent. 

Docket Number: CG S&R 04-0144 

CG Case No. 1813375 

DECISION AND ORDER 

Issued: October 7, 2004 

Issued by: Parlen L. McKenna, Administrative Law Judge 

Appearances: 

Lieutenant Ronnie D. Patrick 

~--------------------------------hiffiH~BerisK.~~--------------------------------­

U.S. Coast Guard 

800 David Drive 

Morgan City, LA 70380 

For the Coast Guard 

Robert K. Landry, ProSe 

For the Respondent 
PRELIMINARY STATEMENT 

The United States Coast Guard (Coast Guard) initiated this administrative action seeking 

revocation of Merchant Mariner's License Number 894592 issued to Respondent Robert Keith 

Landry. The Complaint was issued pursuant to the legal authority contained in 46 U.S.C. 7703 

and its underlying regulation contained in 46 CFR 5.27. 

On March 18, 2004, the Coast Guard issued a Complaint alleging Respondent committed 

misconduct when he failed to submit to a periodic drug test and vessel inspection. In support of 

the Complaint, the Coast-Guard alleged that on May 29,2003, Respondent reported to-the MAT ---- -

SUPERIOR RESULT for duty and was informed that his employer, Superior Energy Services, 

was administeriQ.g:a periodic drug test. Respondent refused to submit to the drug test and was 

transported to S.\lperior Energy Services' office and his employment was immediately 

terminated. 

Responqent's Answer dated March 26, 2004, denied all jurisdictional and factual 

allegations contained in the Complaint and requested a hearing before an Administrative Law 

Judge (sometimes hereinafter referred to as "Judge"). On June 3, 2004, the hearing commenced 

in Morgan City, Louisiana in accordance with the Administrative Procedure Act, codified at 5 

U.S.C. 551-559,,and t.he Coast Guard procedural regulations set forth in 33 CFR Part 20. At the 1)!', ' • '·' :·. 

hearing, Respondent admitted to all charges brought by the Coast Guard. (Tr. 4). 1 Therefore, 

the remaining is.sue considered at the hearing was the appropriate sanction for Respondent's 

refusal to undergo a chemical drug test. (Tr. 8-9). The Investigating Officer, on:behalf of the 

Coast Guard, pr~sented the testimony of one witness and five exhibits were admitted into 

evidence. Respondent proffered two exhibits for admission into the record and testified on his 

own behalf. The list of witnesses and exhibits are contained in Attachment A. 

1 Citations referencing the transcript are as follows: Transcript followed by the page number (Tr. _). 

2 
After careful review of the factual allegations, Respondent's admissions, and applicable 

case law, I find the Coast Guard PROVED Respondent committed misconduct by refusing to 

participate in a periodic drug test on May 29, 2003. 

FINDINGS OF FACT 

The Findings of Fact are based on a thorough and careful analysis of the documentary 

evidence, testimony of witnesses, and the entire record. 

1. At all relevant times mentioned herein and specifically on or about May 29, 2003, 

through June 3, 2004, the above named Respondent was the holder of Merchant 

Mariner's License Number 894592 issued by the United States Coast Guard. (Tr. 5). 

2. The Respondent's License, dated September 22, 2000, authorized him to serve as master 

of steam or motor vessels of not more than 100 gross registered tons (domestic) on or 

near coastal waters. (Tr. 21-23; Gov't Ex. 2).2 

3. On May 29, 2003, Superior Energy Services ordered a unit sweep and inspection of the 

M/V SUPERIOR RESULT crew because the division manager was concerned about 

improper drug use on the vessel. The Substance Abuse Policy implemented by Superior . . 

Energy Services provides for biological testing of all employees in a unit for illegal 

drugs. This is referred to as a "unit sweep." (Tr. 13-15; Gov't Ex. 3). 

4. On May 29, 2003, the Respondent reported to the M/V SUPERIOR RESULT to relieve 

the previous shift captain of his duties. At that time, the Human Resource Manager 

informed Respondent of the unit sweep. (Tr. 14). 

5. All the crewmembers, except Respondent, participated in the testing for illegal drugs. 

(Tr. 15). 

2 Citations referring to Agency Exhibits are as follows: Government followed by the page number (Gov't Ex._); 

Respondent's Exhibits are as follows: Respondent followed by the page number (Resp Ex._). 

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6. The Human Resource Manager overseeing the unit sweep and vessel inspection 

transported the Respondent back to Superior Energy Services' office and immediately 

terminated the employment of the Respondent for refusal to submit to a requested drug 

test. (Tr. 16, 22). 

7. At the hearing, Respondent admitted all jurisdictional and factual allegations. (Tr. 4). 

8. Respondent testified that he refused to take the drug test because he was around someone 

using marijuana. (Tr. 25). 

-- - ---9-. Buring-examination-by-the-eoast-Guard,--Respondent-admitted-that-in-1-99'7-he-previously~------

tested positive for the use of illegal drugs. (Tr. 27-28). 

10. Respondent failed to disclose his prior drug use on his application for an original license 

on or about August 28, 2004. (Tr. 33-34; Gov't Ex. 5). 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. The Respondent, Robert Landry, and the subject matter contained in the hearing are 

properly within the jurisdiction vested in the United States Coast Guard under 46 U.S.C. 

7703; 46 CFR Parts 5 and 16; and 3 3 CFR Part 20. 

2. At all relevant times, the Respondent was the holder of Merchant mariner's License 

Number 894592. 

3. At all relevant times, the Respondent acted under the authority of his license, which was 

required for employment as a captain with Superior Energy Services. (Tr. 14, 28-29). 

4. The Respondent failed to comply with the Substance Abuse Policy established by 

Superior Energy Service, which allows biological testing of employees in a unit sweep 

for illegal drugs. 

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5. The Respondent's refusal to submit to biological testing resulted in his termination with 

Superior Energy Services. 

6. The Coast Guard PROVED by a preponderance of reliable and credible evidence that the 

Respondent, while acting under the authority of his license, committed an act of 

MISCONDUCT by refusing to participate in a periodic drug test. 

DISCUSSION 

Under 46 U.S.C. 7703, a mariner's license may be suspended or revoked if the holder of 

the license is acting under the authority_of_thatJicense_and-the-holder-commits-an-aGt-0~--------­

misconduct. A mariner is considered to be acting under the authority of his license if the license 

is: (1) required by law or regulation; or (2) required by an employer as a condition of 

employment. See 46 CFR 5.57; see also Appeal Decision 2620 (COX) (2001). In this case, the 

Human Resource Manager for Superior Energy Services testified that the Respondent was 

required to holla lice~se as a condition of employment. (Tr. 14; Resp Ex. B). The Coast Guard 

established jurisdiction under 46 CFR 5.57(a)(2); further, Respondent admitted to Coast Guard's 

jurisdiction overJis license at the hearing. (Tr. 4-5, 12-14, 21-22). 

The Complaint alleges that the Respondent refused to participate in a periodic drug test, 

+----------mlrtch constituted an act ofm1sconduct.3 (Gov't Ex. 1). Misconduct is defined as human ,;·, ; 

behavior which violate~ some formal, duly established rule. See 46 CFR 5.27. Accordingly, ·.: .,,., . '"' 

"such rules are found in, among other places, statutes, regulations, the common law, the general 

' : ~- ' . . . 

maritime law, a'ship's regulation or order, or shipping articles and similar sources. It is an act 

which is forbkicien or a failure to.do that which is requested." Id. 

. -l . ~ ~ 

3 Although the factual; allegations in the Complaint characterized the test for illegal drugs as a periodic drug test, the 

facts presented at the hearing portray a reasonable cause drug test. Employers implement reasonable cause drug 

tests when an employee acting under the authority of a license or merchant mariner's document is reasonably 

suspected of using illegal drugs. See 46 CFR 16.250. Here, Respondent had sufficient notice of the allegations and 

understood his refusal to submit to the drug test constituted the basis for the charge of misconduct. See Appeal 

Decision 2578 (CALLAHAN) (1996). Therefore, reference in the Complaint to a periodic drug test, as opposed to a 

reasonable cause test, was not error. It is well established that amendments needed to conform specifications to a 

Complaint is permissible in administrative proceedings. See Kuhn v. Civil Aeronautics Board, 183 F.2d 839 (D.C. 

Cir.) (1950); see also Appeal Decision 2630 CBAARSVIK) (2002); Appeal Decision 2326 (MCDERMOTT) (1983). 

Moreover, Resporide.rlt did not object to the wording in the Complaint. 

5 
Here, the formal, duly established rule violated by Respondent was the refusal take a 

required drug test. See 46 CFR 16.250. The purpose of the chemical testing regulations in 46 

CFR Part 16 is to minimize use of intoxicants by mariners and to promote a drug free and safe 

work environment.·. See 46 CFR 16.101. The chemical testing guidelines and procedures 

followed by the .Coast Guard are detailed in 49 CFR Part 40. Specifically, failure to provide a 

urine specimen fora drug test constitutes a refusal to take a drug test and mariners who refuse to 

comply with the regulations incur the consequences specified by that agency. See 49 CFR 

The Respo11den~ also violated his employer's Substance Abuse Policy. Superior Energy 

Services Substanre Abuse Policy states that testing may be performed on employees if the 

testing is based on belief or objective facts sufficient to lead a supervisor to suspect that someone 

may be under the. influence. (Tr. 17-18; Gov't Ex. 3). Additionally, each employee must give a 

written acknowlecigement that he has received the Substance Abuse Policy, read the policy and 

understood it. ('[r. 18-19; Gov't Ex. 4). The Policy further states that an employ~e must consent 

to drug testing as ~,condition of employment; failure to due so results in that employee's 

termination. (Tr;. J 6; Gov't Ex. 3). ·.l ... \,,. 

The Hum~,Re~ource Manager testified that the unit sweep was ordered after the 

Division Manage.r reported concerns of"some activity" on the vessel. (Tr. 13). At the hearing, 

Respondent admi.tted to all facts supporting the Coast Guard's allegation of misconduct, 

resulting from a refusal to take a chemical drug test. (Tr. 4). An admission of all facts by a 

Respondent constitutes a waiver of all non-jurisdictional defects and defenses and is sufficient to ' ' 

support a finding of charges proved. See Appeal Decision 2376 (FRANK) (1985). Here, the 

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Coast Guard satisfied the burden of proof and I find the allegation of misconduct PROVED. 

The remaining issue to determine is the appropriate sanction. 

SANCTION 

The Coast Guard seeks revocation of Respondent's license; in contrast, the Respondent 

requests a sanction that would allow him to retain his license. It is well within the power of the 

Judge to order any of a variety of sanctions, including revocation. See 46 CFR. 5 .569; see also 

At>peal Geeisi0n ~569 fFA¥.b0R-). 'Fitle-46-of-the-eode-of-Federal-Regulatiurrs-Part-5-Section 

569 provides the Table of Suggested Range of Appropriate Orders (Table) for various offenses. 

According to the Table, committing an act of misconduct generally results in suspension of a 

mariner's document. See 46 CFR 5.569(d). However, a Judge is not bound by this Table and 

has discretion to exceed the suggested range or lessen the sanction. See 46 CFR 5.569(d); see 

also Appeal Decision 2628 (VILAS) (purpose of table is to provide guidance and promote 

uniformity). 

In support of revocation, the Coast Guard relied on Appeal Decision 2578 

(CALLAHAN) (1996) and Appeal Decision 2624 (DOWNS) (2001) in its post hearing filing to 

argue that revocation is appropriate for refusing a drug screen. 

4 In these aforementioned cases, 

the Commandant a(firmed the order of revocation and reasoned, "if mariners could refuse to 

submit to chemical testing and face a lesser Order, it is difficult to imagine why anyone that may 

have used drugs would ever consent to being tested.'' See Appeal Decision 2578 (CALLAHAN) 

4 On June 7, 2004, the Coast Guard filed a Motion for Revocation of the License of Robert K. Landry. At the 

conclusion of the hearing, the undersigned issued an oral decision of revocation, ordered the Coast Guard to take 

possession of the license and complete the necessary paperwork for revocation. The undersigned informed the 

parties that a written decision and order memorializing the decision would be forthcoming. (Tr. 31-34). Since the 

undersigned issued an order of revocation, it was not necessary for the Coast Guard to file a motion requesting 

revocation. As a result, the Coast Guard's Motion for Revocation is treated as a post hearing brief. 

7 
(1996) and AJ)peal Decision 2624 (DOWNS) (2001). Furthermore, a mariner's refusal to submit 

to a drug test raises doubts about a mariner's ability to perform safely and competently in the 

future. Id. 

Superior Energy Services ordered the drug testing as a result of the division manager's 

concerns regarding activity on the M/V SUPERIOR RESULT. All employees participated in the 

unit sweep except the Respondent. During the hearing, the Respondent testified that he refused 

to participate in the drug test because he had been around someone smoking marijuana and was 

------afraid-he-might-have-marijuana-in-his-system.-'I'he-Respencl.ent-'-s-refusal-to-submit-to-dmg-testing~-----

contradicts the purpose of the mandated drug-testing regulations, which is to minimize use of 

intoxicants by m~rchant mariners and to promote a drug free and safe work environment. See 46 

CFR 16.101(a); see also (CALLAHAN). 

Althou~h the Respondent did not have a prior record, additional aggravating factors 

support an orde~ of revocation. During the Coast Guard's examination of Respondent, he 

admitted to testi11-g positive for illegal drugs with a previous employer. The Coast Guard also 

proffered for admission into evidence the Respondent's application for an original license dated 

August 28, 2000 ... Review of that application revealed that the Respondent failed to disclose his 

1997 drug use. Given the Respondent's refusal to test and these aggravating factors, revocation . . . ~ . . 

is the appropri~t~remedy to ensure maritime safety, to guarantee the effectiveness of the drugtesting program, a11d to prevent potential abuse by the Respondent in the future. 

ORDER 

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IT IS HEREBY ORDERED that Merchant Mariner's License number 894592 and all 

other valid licenses, documents, and endorsements, issued by the Coast Guard to Robert Keith 

Landry are hereby REVOKED. 

PLEASE TAKE NOTICE that service of this Decision on the parties and/or parties' 

representative(s) serves as notice of appeal rights set forth in 33 CPR 20.1001 - 20.1004. See 

Attachment B. 

Done and dated. on this ih day of October 2004 

Alameda, California 

: .·.\... 

HON. PARLEN L. MCKENNA 

ADMINISTRATIVE LAW JUDGE 

UNITED STATES COAST GUARD 

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