UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_______________________________

UNITED STATES COAST GUARD

Complainant

vs.

NEIL A. WEBB, JR.

Respondent.

______________________________ Docket Number: CG S&R 2009-0228

CG Case No. 3488744

DECISION AND ORDER

Issued: June 11, 2012

Issued by: Michel J. Devine, Administrative Law Judge

This Order is issued in accordance with 33 CFR 20.902(c), which authorizes the issuance 

of an initial oral decision. The United States Coast Guard initiated this administrative action 

seeking revocation of the Merchant Mariner’s Document issued to Neil A. Webb, Jr., the 

respondent in this case. The Complaint dated May 29, 2009 alleges that Respondent, a holder of 

Coast Guard issued credentials, violated 46 U.S.C. 7703(1)(B) and 46 CFR 5.27 by refusal to 

complete a pre-employment drug test conducted on April 27, 2007. The Complaint further states 

that during the test a specimen was collected from respondent and that its temperature was “out 
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of range.” The allegations also assert that the documentation of the test was reviewed and ruled 

as a refusal to test by Dr. Hani J., Khella, a Medical Review Officer.1

 

On June 18, 2009, Respondent, through counsel filed an Answer denying part of the 

jurisdictional allegations as stating a legal conclusion. Respondent admitted the factual 

allegations that he provided a urine specimen for a pre-employment drug test but denied facts 

alleging that he refused to provide a second specimen for an improper reason. 

An evidentiary hearing was held in Norfolk, Virginia on September 17, 2009. The 

hearing was conducted in accordance with Administrative Procedure Act, amended and codified 

at 5 U.S.C. 551-59, Coast Guard Administrative Procedure statute codified at 46 U.S.C. 7702, 

and the procedural regulations codified at 33 CFR Part 20. At the beginning of the hearing 

Respondent through counsel stipulated to jurisdiction, but continued to contest the factual 

allegations regarding refusal to complete a pre-employment drug test.

At the hearing, Mr. James Staton, Lt(jg) Dianna Bailey and Lieutenant Hector Pacheco

entered an appearance on behalf of the Coast Guard. Respondent also appeared at the hearing 

represented by attorney Deborah C. Waters. 

The Coast Guard presented the sworn testimony of two witnesses and submitted four

exhibits which were admitted into evidence. Respondent testified on his own behalf at the 

hearing. His wife also testified and one exhibit was submitted and admitted into evidence. The 

witness and exhibit lists are contained in Attachment A. 

At the conclusion of the hearing, an oral decision was rendered finding the jurisdictional 

and factual allegations proved. An order directing outright suspension of Respondent’s 

 1 The original complaint was executed and served on Respondent on or about May 29, 2009.
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Merchant Mariner Document for a period of fourteen (14) months was issued. The findings of 

fact and conclusions of law may be summarized as follows:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Respondent Neil A. Webb, Jr. and the subject matter of this proceeding is within the 

jurisdiction of the Coast Guard vested under the authority of 46 U.S.C. Chapter 77

and an individual participating in a pre-employment drug test is acting under 

authority of a merchant marine credential under 46 CFR 5.57. 

2. On April 27, 2007, Respondent submitted to a pre-employment drug test. The 

Respondent provided a urine specimen that was collected, and determined to be less 

than ninety (90) degrees of temperature which is inconsistent with normal human 

body temperature. The temperature is checked within four minutes of taking the 

specimen in keeping with guidance pursuant to Department of Transportation (DOT) 

regulations. 

3. The lack of a valid specimen collection was subsequently verified by a Medical 

Review Officer in accordance with 49 CFR Part 40.

4. The Medical Review Officer testified that it was not physiologically possible for a 

human to produce a urine specimen that was below 90 degrees and that according to 

studies a specimen could not cool so fast as to be less than 90 degrees in temperature 

within four minutes of collection.

5. There is no legitimate medical explanation for the cold temperature specimen 

provided by the Respondent.
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6. Respondent signed the drug test forms including the shy bladder form (Exhibit 4) 

which contained an express statement that leaving before providing another specimen 

would constitute a refusal to test.

7. Respondent’s testimony regarding a need to leave for other employment does not 

excuse leaving early. 

8. The Coast Guard has proved by a preponderance of reliable and credible evidence 

that Respondent refused to complete a pre-employment drug test, constituting 

misconduct under 46 U.S.C. 7703(1)(B) and the underlying regulations.

9. Official Notice is taken of Appeals Decision 2578, (CALLAHAN)(1996) and of 

Commandant v. Moore, NTSB Order No. EM-201 (2005).

SANCTION

I have carefully reviewed the record and considered all of the evidence presented in this 

matter beginning with the Complaint and Answer and note that the proposed sanction of 

revocation would exceed the suggested range of sanctions contained in Table 5.569 of 46 CFR 

5.569. The single violation of misconduct for refusing a drug test indicates a range of sanctions 

from 12 to 24 months outright suspension. Respondent failed to complete the pre-employment 

drug test on April 27, 2007. There was no evidence of any prior offenses by Respondent. 

The Table of Average Orders is only intended to provide information and guidance, and 

the Administrative Law Judge is not bound by the range of appropriate orders in 46 CFR 

5.569(d). Appeal Decision 2578 (CALLAHAN) (1996); Appeal Decision 2475 (BOURDO)

(1988). Evidence of mitigating or aggravating circumstances may justify departing from the 

suggested range. 46 CFR 5.569(d).
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The Coast Guard recommends a sanction of revocation arguing that the cold specimen 

presented along with Respondent’s early departure indicating avoidance of a drug test should be 

comparable to a positive drug test and that revocation is appropriate even considering the

application of Commandant v. Moore, NTSB Order No. EM-201 (2005)(upward departure to 

revocation not upheld without an explanation of aggravating factors).

In opposition Respondent presented argument of the need to go to other employment and 

that he somehow did not understand that action could be taken for failure to complete the testing. 

Respondent has been a mariner for a substantial period of time and stated he has taken other drug 

tests. In view of his knowledge and the clear language of the forms the argument that he was 

unaware that action could be taken for failure to complete the drug test is not credible. However, 

applicable authority also indicates that evidence in aggravation should be presented to support 

going beyond the suggested range of sanctions in the table. Commandant v. Moore, NTSB 

Order No. EM-201 (2005). After considering all of the evidence in the record including the fact 

that a mariner’s failure to complete a pre-employment drug test is a serious offense that could 

result in the revocation of that individual’s Coast Guard issued license and/or document. 

However, under the limited facts and circumstance of this case, I find that the Coast Guard has 

not provided sufficient evidence of aggravating factors to support exceeding the suggested range 

contained in the table. The Respondent argument in mitigation that either his non-compliance 

should be excused or a minimal sanction assessed fails to address the problem presented that 

avoiding a test until some other time frustrates the purpose of the test to insure that a mariner 

does not have a drug or alcohol abuse problem that would place in doubt the ability of a mariner 

to safely carry out his/her duties and responsibilities on the vessel. These considerations are 
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applicable in this case. Therefore, I find that fourteen (14) months outright suspension is the 

appropriate sanction.

WHEREFORE,

ORDER

IT IS HEREBY ORDERED THAT the Merchant Mariner’s Document and all other 

Coast Guard licenses, certificates and documents issued to Respondent Neil A. Webb are

SUSPENDED OUTRIGHT for a period of FOURTEEN (14) MONTHS. Respondent’s 

credentials have been surrendered to the U.S. Coast Guard Sector Hampton Roads Office, 200 

Granby Street, Norfolk, Virginia 23510 and shall be retained by the Coast Guard during the 

period of suspension.

IT IS HEREBY FURTHER ORDERED THAT the suspension Merchant Mariner’s 

Document and all other Coast Guard licenses, certificates and documents issued to Respondent 

Neil A. Webb, Jr. shall begin as of May 27, 2009 and shall be completed as of July 27, 2010.

PLEASE TAKE FURTHER NOTICE that Service of this Order on the parties and/or 

parties representatives serves as notice of appeal rights as set forth in 33 C.F.R. § 20.1001 -1003. 

(Attachment B).

Done and dated June 11, 2012

Norfolk, VA 

____________________________________

MICHAEL J. DEVINE

Administrative Law Judge
ATTACHMENT A

WITNESS AND EXHIBIT LIST

Coast Guard Witnesses

Nawal Boufrou

Hani. J. Khella, MD

Respondent Witnesses

Neil A. Webb, Jr.

Mrs. Yolanda Webb

Coast Guard Exhibits

1 Medical Review Officer Report dated April 27, 2007

2 Copy of Merchant Mariner Document 042808 issued to Neil Anthony Webb, Jr.

3 Federal Drug Testing Custody and Control Form # Y14893631 (Copy 1 Laboratory) 

indicating collection date of April 27, 2007 (consisting of 3 pages) .

4 Nowcare Shy Bladder and Direct Observation Procedures Form, completed on April 

27, 2007.

Respondent Exhibits

A. Voluntary Surrender Form noting submission of Respondent’s Merchant Mariner

 Document on May 27, 2009.
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ATTACHMENT B

NOTICE OF 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;

(j) Reasons supporting the appeal; and

(k) Relief requested in the appeal.
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(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.