UNITED ST A TES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

MERCHANT MARINER DOCUMENT 

and 

LICENSE 

Issued to: JAY W. BARNETT 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

NO. 2657 

This appeal is taken in accordance with 46 U.S.C. § 7701 et seq., 46 C.F.R. 

Part 5, and the procedures set forth in 33 C.F.R. Part 20. 

By a Decision and Order (hereinafter "D&O") dated May 13, 2003, an 

Administrative Law Judge (hereinafter "ALJ") of the United States Coast Guard at New 

Orleans, Louisiana, revoked Jay W. Barnett's (hereinafter "Respondent's") mariner 

credentials upon finding proved a charge of use of a dangerous drug. The charge was 

based on a single specification of use of, or addiction to the use of, dangerous drugs in 

violation of 46 U.S.C. § 7704(c) and 46 C.F.R. § 5.35. The Complaint alleged that on 

September 17, 2002, Respondent submitted to a random drug test and provided a urine 

sample that tested positive for the presence of marijuana metabolites. 

PROCEDURAL HISTORY 

The Coast Guard filed its Complaint against Respondent's mariner credentials on 

October 23, 2002. [D&O at 2] On November 8, 2002, Respondent filed both his Answer 

to the Complaint, wherein he denied all jurisdictional and factual allegations, and a 
BARNETT NO. 2657 

Motion for Change of Venue and Continuance of the Hearing. [D&O at 2] On 

November 25, 2002, for good cause shown, Respondent's change of venue request was 

granted and the ALJ ordered that the hearing location originally suggested in the 

Complaint (Daphne, Alabama) be moved to Coast Guard Marine Safety Office New 

Orleans, Louisiana. [D&O at 2-3] 

On January 28, 2003, Respondent filed a Verified Motion for Disqualification of 

the ALJ (hereinafter "Motion for Disqualification"). [D&O at 3] The Hearing convened 

the following day and Respondent was represented by counsel. [D&O at 3; Transcript 

(hereinafter "Tr.") at 6] When the hearing began, oral argument regarding Respondent's 

Motion for Disqualification was heard. [D&O at 3; Tr. at 14-23]. After considering the 

arguments presented, the ALJ denied Respondent's Motion for Disqualification and 

proceeded with the hearing. [D&O at 3; Tr. at 23]. Thereafter, the Coast Guard called 

three witnesses and introduced four exhibits into evidence while Respondent called one 

witness and introduced seven exhibits into evidence. [D&O at 3] 

At the close of the hearing, the ALJ ordered the submission of post-hearing briefs 

and proposed findings of fact and cone I us ions of law by March 17, 2003. (D&O at 3] 

On February 21, 2003, rather than filing the post hearing documents ordered by the ALJ, 

Respondent filed a Second Verified Motion for Disqualification (hereinafter "2nd Motion 

for Disqualification"), alleging both bias and that the ALJ improperly entertained ex 

parte communications at the hearing. [D&O at 3; 2nd Motion for Disqualification at 2-3] 

The Coast Guard filed a post-hearing brief and an opposition to Respondent's 2nd Motion 

for Disqualification on March 14, 2003. [D&O at 3] The ALJ issued an Order Denying 

2 
BARNEIT NO. 2657 

Respondent's 2nd Motion for Disqualification on April 4, 2004. [D&O at 4] The ALJ 

issued his D&O on May 13~ 2003. [D&O at 16] 

On May 19, 2003, Respondent filed his Notice of Appeal. Respondent perfected 

his appeal by filing his appellate brief on May 28, 2003. Therefore, this appeal is 

properly before me. 

APPEARANCES: Mac Morgan, Esq., Post Office Box 24501, 879 Robert E. Lee 

Boulevard, New Orleans, Louisiana, 70124, for Respondent. The Coast Guard was 

represented by MSTl Ray S. Robertson, USCG, Marine Safety Office Mobile, Alabama. 

FACTS 

At all relevant times, Respondent was a holder of merchant mariner credentials 

issued by the United States Coast Guard. [D&O at 4; Tr. at 9-10] On September 17, 

2002, pursuant to customary procedure, Respondent was selected for random drug 

testing. [D&O at 4] As a result of the random selection, Ms. Tabitha Straughter, a 

certified medial assistant/drug screen collector and employee of Marine Medical Unit 

collected a urine sample from Respondent. [D&O at 4-5] The sample was collected, 

secured, and identified in accordance with applicable Department of Transportation 

(DOT) drug testing procedure. [D&O at 5-6; Tr. at 94-95; Investigating Officer 

(hereinafter "IO") Exhibit 3] Following collection, Respondent's sample was sent via 

courier to Quest Diagnostics' laboratory in Atlanta, Georgia, where it was to undergo 

customary drug testing. [D&O at 6; Tr. at 96-97; IO Exhibit 3] 

At Quest Diagnostics' laboratory, Respondent's sample was subjected to initial 

screening for the presence of prohibited substances on September 18, 2002. [D&O at 6-

7; Tr. at 40-42; 49; IO Exhibit l] Because the initial screening showed that Respondent's 

3 
BARNETT NO. 2657 

sample was positive for the presence of marijuana metabolites; it was subjected to a gas 

chromatography mass spectrometry confirmation (GCMS) process to verify the positive 

test result. [D&O at 7; Tr. at 41-42, 49; IO Exhibit I] A medical doctor reviewed the 

GCMS results and confirmed that Respondent's sample was, in fact, positive for the 

presence of marijuana metabolites. [D&O at 7; Tr. at 42, 46-48; IO Exhibit 2] 

BASES OF APPEAL 

This appeal is taken from the ALJ' s D&O finding proved the charge of use of, or 

addiction to the use of, dangerous drugs. Respondent raises the bases of appeal 

summarized below: 

I The Coast Guard failed to establish a primafacie case of drug use and, as 

a result, the ALJ erred in finding the Coast Guard's case proved. 

11 The ALJ erred in admitting the telephone testimony of the Coast Guard's 

witnesses; 

Ill The ALJ erred in admitting the testimony of the Coast Guard's witnesses 

and the Coast Guard's exhibits; 

IV. The ALJ erred in his denial of Respondent 's motions for disqualification,· 

and, 

V. Commandant Decision on Appeal No. 2535 (Sweeney), was an abuse of 

discretion, arbitrary and capricious, and improper rule making which 

deprived Respondent of the ability to raise the statutory defense of cure as 

provided/or in 46 USC.§ 7704(c). 

OPINION 

I. 

The Coast Guard failed to establish a prima facie case of drug use and, as a result, the 

ALJ erred in finding the Coast Guard's case proved. 

A mariner credential issued by the Coast Guard must be revoked if it is shown 

that the holder has been a user of dangerous drugs. 46 U.S.C. § 7704(c). Pursuant to 

4 
BARNEIT NO. 2657 

Coast Guard regulation, if a mariner fails a drug test, he is presumed to be a user of 

dangerous drugs. 46 C.F.R. § 16.201(b); Appeal Decisions 2584 (SHAKESPEARE) and 

2529 (WILLIAMS ). To prove use of a dangerous drug, the Coast Guard must establish a 

prima facie case of drug use by the mariner. See Appeal Decisions 2592 (MASON), 

2589 (MEYER), 2584 (SHAKESPEARE), 2583 (WRIGHT), 2282 (LITTLEFIELD), 

2379 (DRUM) and 2529 (WILLIAMS). 

In a drug case based solely upon urinalysis test results, a prima facie case of use 

of a dangerous drug is shown when three elements are proved: (1) that a party is tested 

for use of a dangerous drug; (2) that test results show that the party tested positive for the 

presence of a dangerous drug; and (3) that the drug test is conducted in accordance with 

the procedures set forth in 49 C.F.R. Part 40. Appeal Decisions 3632 (WHITE), 2603 

(HACKST AFF), 2598 (CATTON), 2592 CMASON), 2589 CMEYER), 2584 

(SHAKESPEARE), and 2583 (WRIGHT). In considering the proof of these elements, it 

must be kept in mind that minor technical infractions of the regulations do not violate due 

process unless the infraction breaches the chain of custody or violates the specimen's 

integrity. Appeal Decisions 2575 (WILLIAMS), 2522 (JENKINS), 2537 (CHATHAM); 

2541 (RAYMOND), affd sub nom NTSB Order No. EM-175 (1994), 2546 

(SWEENEY), affd sub nom NTSB Order No. EM-176 (1994). Furthermore, if 

Respondent produces no evidence in rebuttal to proof of the three elements, "the ALJ 

may find the charge proved on the basis of the presumption [of drug use] alone." Appeal 

Decision 2603 (HACKSTAFF); see 33 C.F.R. § 20.703 (a presumption in a Coast Guard 

administrative hearing imposes on the party against whom it lies the burden of going 

5 
BARNE IT NO. 2657 

forward with evidence to rebut or meet the presumption, but does "not shift the burden of 

proof in the sense of the risk of non-persuasion"). 

On appeal, Respondent contends that the Coast Guard failed to prove any of the 

required elements of a prima facie case and, as a result, that the ALJ erred in finding the 

Coast Guard's drug use charge proved. With respect to the first element of a primafacie 

case-that Respondent was tested for use of a dangerous drug-Respondent contends 

that because the witness the Coast Guard presented to provide evidence of the element 

(Ms. Tabitha Straughter) could not remember either how she identified Respondent at the 

time of collection or where the collection took place, "competent evidence does not exist 

for the ALJ' s conclusion that the Coast Guard carried its burden of establishing ... that the 

respondent was the person who was tested." [Brief of Appellant at 91 With respect to the 

second element- that test results show that Respondent tested positive for presence of 

dangerous drugs- Respondent contends that the ALJ erred in admitting the Coast 

Guard's copy of the Drug Testing Custody and Control Form (hereinafter "DTCCF") into 

evidence because the document was not properly certified and was authenticated solely 

by hearsay testimony. As a result, Respondent concludes that the ALJ's finding that the 

Coast Guard proved this element of its prima facie case "was not based on competent 

evidence and the ALJ's decision to the contrary must be reversed." [Brief of Appellant at 

7] Finally, with respect to the third element of the Coast Guard'sprimafacie case-that 

drug testing was conducted in accordance with 40 C.F.R. Part 40- Respondent contends 

that the testimony offered by the Coast Guard to prove this element, specifically 

testimony concerning the sufficiency of medical review, was insufficient because it was 

not provided by the Medical Review Officer of record in Respondent's case, was based 

6 
BARNETT NO. 2657 

solely on hearsay and, as a result, did not provide "competent evidence ... to support the 

ALJ's conclusion that the Coast Guard established the medical review prong of its prima 

facie case." After a thorough review of the record, I do not find Respondent's first basis 

of appeal to be persuasive. 

A. 

To establish the fust element of its prima facie case-that Respondent was tested 

for dangerous drugs- the Coast Guard entered both the testimony of Ms. Tabitha 

Straughter and the DTCCF into evidence. [Tr. at 85-115; IO Exhibit I] Ms. Straughter 

testified that she is a "certified medical assistant and certified drug screen collector" who 

has made numerous sample collections under DOT guidelines. [Tr. at 89-90] More 

importantly, Ms. Straughter testified that Respondent-who she positively identified 

through either his driver's license or merchant mariner document- provided a urine 

sample to her for drug screening on September 17, 2002. [Tr. at 90] In describing the 

collection process, she testified that after Respondent provided a urine sample, that 

sample was split into two bottles which Respondent sealed with tamper-resistant 

materials and initialed in her presence. [Tr. at 94-95] Finally, Ms. Straughter testified 

that she observed Respondent sign the DTCCF and, in so doing, certify: 1) that he 

provided his specimen to the collector; 2) that he did not adulterate the specimen; 3) that 

each specimen was sealed in his presence; and, 4) that the information that he provided 

during the completion of the DTCCF and on the seals affixed to the sample bottles was 

correct. [Tr. at 95-96] Over Respondent's objection, the DTCCF was admitted into 

evidence as IO Exhibit 11

• [Tr. at 43-44] 

1 The admissibility of the DTCCF is discussed in Part B, below. 

7 
BARNE TI NO. 2657 

At the hearing, Respondent's counsel attacked Ms. Straughter's credibility 

through vigorous cross-examination. [Tr. at 98-11 1] In so doing, Respondent argued 

that it was improbable that Ms. Straughter had an actual recollection of Respondent's 

collection because she, herself, testified that she had taken "'[g]reater than I 00" urine 

samples since taking Respondent's and admitted that she could not remember either the 

name of the vessel that the collection took place on or whether she verified Respondent's 

identity with his driver's license or merchant mariner credential. [Tr. at 98-111] 

In his D&O, the ALJ found that "[t]he Coast Guard demonstrated that the 

Respondent was tested for marijuana metabolites." [D&O at 1 O] In addition, the ALJ 

specifically addressed Ms. Straughter's testimony in footnote 5 of his D&O as follows: 

In this case, Ms. Straughter could not remember whether she verified 

Respondent's identity with his driver's license or merchant mariner's 

document. Moreover, she was unable to recall the name of the vessel she 

boarded to obtain the specimen sample. However, she did recall this 

particular collection because one of the two vessels, which were docked 

side-by-side, sank. Ms. Straughter recalled collecting a specimen from the 

Respondent who was not on the vessel which sank. Ms. Straughter stated, 

"I was on the right vessel at the right time." [citations omitted] 

[D&O at 5, n. 5] 

On appeal, Respondent asserts that the ALJ erred in finding that there was 

"competent evidence" to support a conclusion that Respondent was tested for dangerous 

drug use. He bases this conclusion on his unsupported assertion that: 

When a witness' recollection comes from looking at the custody and 

control form, and the witness cannot remember the name of the vessel or 

how she identified the donor, other than making an assumption that she 

followed normal practice in that regard, competent evidence does not exist 

for the ALJ's conclusion that the Coast Guard carried its burden of 

establishing the final prong of its prima facie case, that is, that the 

respondent was the person who was tested. 

8 
BARNETT NO. 2657 

[Brief of Appellant at 9] After a thorough review of the record, I do not find 

Respondent's assertion in this regard to be persuasive. 

It is the sole purview of the ALJ to determine the weight of the evidence and to 

make credibility determinations. Appeal Decision 2156 (EDWARDS), Appeal Decision 

2116 (BAGGETI), Appeal Decision 2472 (GARDNER). In this case, although 

Respondent's counsel questioned the veracity of Ms. Straughter's statement that she had 

an independent recollection of Respondent's sample collection, the ALJ found her 

testimony to be credible. I do not find that the ALJ erred in so determining. In addition, 

as I mentioned above, the record contains a copy of the DTCCF which shows that 

Respondent, himself, certified that he provided Ms. Straughter with the urine sample that 

ultimately tested positive for the presence of marijuana metabolites. [IO Exhibits 1] A 

review of the record shows that Respondent did not deny either providing a urine sample 

for testing to Ms. Straughter or certifying that he had done so on the DTCCF on 

September 17, 2002. Therefore, I do not find the ALJ's determination that the Coast 

Guard established the first element of its prima facie case- that respondent was tested for 

drug use-to be arbitrary, capricious, or an abuse of his discretion. The ALJ's finding in 

that regard was supported by evidence in the record and will not be disturbed. 

B. 

Respondent next contends that the ALJ erred in finding sufficient evidence in the 

record to support a conclusion that the Coast Guard proved the second element of its 

primafacie case-that test results show that the Respondent tested positive for dangerous 

drugs. As proof of this element, the Coast Guard offered a copy of the DTCCF, which 

showed that urine identified as Respondent's tested positive for the presence of marijuana 

9 
BARNETT NO. 2657 

metabolites and the Chain of Custody Form for Respondent's sample. [IO Exhibits 1 and 

2] At the hearing, the Coast Guard called Mr. Edward Azary, Laboratory Director of 

Quest Diagnostics (the laboratory that conducted testing of Respondent's sample) to 

authenticate the DTCCF. [Tr. at 33-52] As I have already noted, over Respondent's 

objection, the ALJ admitted the DTCCF into evidence as IO Exhibit 1. [Tr. at 43-44] 

Upon consideration of evidence contained in the DTCCF, the ALJ found that "[t]he Coast 

Guard demonstrated that Respondent was tested for marijuana metabolites." [D&O at 

10] 

On appeal, Respondent challenges the admissibility of IO Exhibit I and asserts, in 

effect, that because the DTCCF was improperly admitted, the ALJ erred in finding the 

second element of the Coast Guard's prima facie case proved. To that end, Respondent 

contends that the ALJ erred in admitting IO Exhibit 1 into the record because the 

document did not state on its face that it was "Copy l" and because the document, itself, 

was not "properly certified or authenticated." [Brief of Respondent at 3-7] After a 

thorough review of the record, I do not find Respondent's assertions, in this regard, to be 

persuasive. 

In Coast Guard suspension and revocation proceedings, the ALJ has broad 

authority to admit any evidence that he deems relevant or which makes the existence of a 

material fact more or less probable. 33 C.F.R. § 20.802; Gallagher v. National Transp. 

Safety Bd., 953 F.2d 1214, 1218 (10th Cir. 1992). In addition, the Coast Guard's 

procedural rules require that the ALJ "regulate and conduct the hearing so as to bring out 

all relevant and material facts and to ensure a fair and impartial hearing." 46 C.F.R. 

§ 5.501. Relevant evidence is defined as "evidence tending to make the existence of any 

10 
BARNE IT NO. 2657 

material fact more probable or less probable than it would be without the evidence." 

33 C.F.R. § 20.802. As a result, Coast Guard regulations make expressly clear that "[t]he 

ALJ may admit any relevant oral, documentary, or demonstrative evidence, unless 

privileged." 33 C.F.R. § 20.802. 

It is well-settled that I may only reverse the ALJ's decision if his findings are 

arbitrary, capricious, clearly erroneous, or based on inherently incredible evidence. 

Appeal Decisions 2584 (SHAKESPEARE), 2570 (HARRIS), aff' NTSB Order No. EM182 (1996), 2390 (PURSER), 2363 (MANN), 2344 (KOHAJDA), 2333 (AYALA), 2581 

(DRIGGERS), and 2474 (CARMIENKE). In this case, there can be no question that IO 

Exhibit 1 was relevant; it provided evidence to show- among other things-that 

Respondent provided a urine sample that was tested for the presence of illegal drugs and 

that Respondent's urine sample tested positive for the presence of marijuana metabolites. 

Since strict adherence to the rules of evidence observed in courts is not required in Coast 

Guard suspension and revocation proceedings and, as I have already stated, all relevant 

and material evidence may lbe received into evidence, I do not find that the ALJ erred in 

admitting IO Exhibit I into the record. Accordingly, I find sufficient evidence in the 

record to support the ALJ's conclusion that the Coast Guard established the second 

element of its primafacie case-that test results show that Respondent tested positive for 

dangerous drugs. 

c. 

Finally, Respondent contends that the ALJ erred in finding that the Coast Guard 

presented sufficient evidence to establish the third element of its prima facie case-that 

Respondent's drug test was conducted in accordance with the procedures set forth in 

11 
BARNETT NO. 2657 

49 C.F.R. Part 40 (the Department of Transportation's regulations establishing the 

"Procedures for Transportation Workplace Drug and Alcohol Testing Programs"). 

49 C.F .R. Part 40 requires, in addition to many other things, that a Medical Review 

Officer review drug test results to ensure that all regulatory procedures are followed 

during the sample collection and testing processes and that individuals whose samples 

have tested positive for the presence of illegal drugs do not have legitimate medical 

reasons for their confirmed positive test results. 

On appeal, Respondent focuses on what he calls the "medical review" prong of 

the Coast Guard's primafacie case and asserts that although "[t]he ALJ knew that the 

witness who needed to be called by the Coast Guard on the medical review prong of its 

primafacie case was the actual Medical Review Officer and not someone who is 'not 

qualified as a medical review officer and ... not a medical doctor'," the Coast Guard failed 

to elicit the Medical Review Officer's testimony and, as a result, the record does not 

contain "competent evidence ... to support the ALJ's conclusion that the Coast Guard 

established the medical review prong of its prima facie case." [Brief of Appellant at 8] I 

disagree. 

In Coast Guard suspension and revocation proceedings, it is the duty of the ALJ 

to evaluate the evidence presented at the hearing and to make ultimate findings of fact 

pertaining to each specification. Appeal Decisions 2472 (GARDNER), 2395 

(LAMBERT), 2156 (EDWARDS), and 2116 (BAGGETT). As I have already noted, I 

may only reverse the ALJ's findings when they are arbitrary, capricious, clearly 

erroneous or based on inherently incredible evidence. Appeal Decisions 2584 

(SHAKESPEARE), 2581(DRIGGERS),2570 (HARRIS), affdNTSB Order No. EM12 
BARNEIT NO. 2657 

182 (1996), 2390 (PURSER), 2363 (MANN), 2474 (CARMIENKE), 2344 (KOHAJDA), 

and 2333 (AYALA). In addition, the findings of the ALJ need not be consistent with all 

evidentiary material in the record as long as there is sufficient material in the record to 

support their justification. Appeal Decisions 2492 (RA TH), 2395 (LAMBERT) and 2282 

(LITTLEFIELD). 

While Appellant is correct that the Medical Review Officer responsible for the 

handling of his case did not testify at the hearing, he fails to acknowledge that the record 

contains other evidence to support the ALJ's conclusion that Respondent's drug test was 

conducted in accordance with the procedures set forth in 49 C.F.R. Part 40. First and 

foremost, the record contains the testimony of Dr. Edward Azary, Laboratory Director of 

Quest Diagnostics (the laboratory that conducted testing of Respondent's sample) and 

Mr. George M. Ellis, Jr., President of Greystone Health Sciences (the company 

responsible for conducting the medical review of the administration of Respondent's 

case). At the hearing, Dr. Azary described the testing procedures followed by his 

laboratory while Mr. Ellis explained the events that transpired after Respondent's sample 

was initially found to be positive for the presence of marijuana metabolites (including the 

medical review that occurred in Respondent's case). [Tr. at 42-70] With respect to the 

latter, Mr. Ellis concluded as follows at the hearing: 

Based on my review of the document that has just been discussed, 

specifically Copy 2, medical review officer copy of the custody and 

control form, as well as Copy 1, laboratory copy of the custody and 

control form, all those documents appear to have been complete and 

completed in accordance with all of the requirements of 49 C.F.R. Part 40 

and absent additional evidence, these documents, in my professional 

opinion and experience, document a verified positive test in the case of 

Mr. Barnett [Respondent]. 

[Tr. at 69] 

13 
BARNETT NO. 2657 

The testimony of Dr. Azary and Mr. Ellis was supported by the admission ofIO 

Exhibits 1, 2, 3 and 4. [Tr. at 44; 61] IO Exhibit 1, discussed at length above, is the 

DTCCF. Most importantly, the DTCCF identifies the procedures followed by a 

laboratory during the sample testing process and contains information regarding a 

sample's chain of custody and primary specimen and split specimen test results. [IO 

Exhibit 1] IO Exhibit 2 is the final laboratory report that summarized Respondent's test 

results and validated Respondent's positive result of 83 nano grams of THC per milliliter 

of urine. [IO Exhibit 2] IO Exhibit 3 is the Medical Review Officer's copy of the Chain 

of Custody Form for Respondent's sample which shows, in a block identified as "Step 6," 

that the Medical Review Officer, Dr. Thomas Dosumu-Johnson, conducted a medical 

review of Respondent's case package and concluded that the testing of Respondent's 

sample and a subsequent interview of Respondent showed not only that Respondent's test 

was conducted in accordance with applicable regulation, but also that Respondent had not 

presented a valid medical explanation for his positive test result. The Medical Review 

Officer certified that Respondent had tested "positive" for illegal drugs by signing his 

name on this Form.. [IO Exhibit 3] FinaJly, IO Exhibit 4, a letter written by Mr. Ellis to 

the Coast Guard, shows both that Respondent tested positive for the presence of 

marijuana metabolites and that a medical review of Respondent's case showed that all 

testing was conducted "under the policy guidelines established by the Department of 

Transportation and the U.S. Coast Guard." [IO Exhibit 4] 

Therefore, because the record contains competent, reliable evidence to support the 

ALJ's conclusion that Respondent's "drug test was conducted in accordance with 

Department of Transportation Guidelines in 49 CFR Part 40," I do not find that the ALJ 

14 
BARNE IT NO. 2657 

erred in so finding. As a result, I find sufficient evidence in the record to support the 

ALJ's conclusion that the Coast Guard established the final element of its primafacie 

case of drug use and I will not overturn the ALJ's findings in that regard. 

II. 

The AL! erred in admitting the telephone testimony of the Coast Guard's witnesses. 

On appeal, Respondent challenges the use of telephone testimony on three 

grounds. First, citing 33 C.F.R. § 20.707(a), Respondent contends that the Coast Guard 

"failed to follow its own regulation" in eliciting the telephone testimony of its witnesses 

because the Coast Guard did not file "a motion for permission to present testimony by 

telephone." [Respondent's Appeal Brief at 10] Next, Respondent contends, citing 

Administrative Law Judges Internal Practices and Procedures Policy No. 16722.4, that in 

failing to file a motion for permission to present telephone testimony, both the Coast 

Guard and the ALJ erred in failing "to follow ... [their] ... own policy." [D&O at 11] 

Finally, Respondent contends-under the premise that "a federal regulation cannot trump 

an Act of Congress"- that because neither the Federal Rules of Evidence nor the Federal 

Rules of Civil Procedure allow the telephone testimony of witnesses, "it was error for the 

ALJ to permit it over ... [Respondent's]. .. objection." [Respondent's Appeal Brief at 12] 

In the same vein, Respondent further asserts that the use of telephone testimony at his 

hearing violated "his fundamental constitutional and regulatory rights to a fair hearing" 

because the telephone testimony "deprived ... [him] ... of meaningful cross-examination 

because he did not have the benefit of being able to personally confront the Coast 

Guard's witnesses." [Respondent's Appeal Brief at 12; 14] As a result, Respondent 

concludes that the telephone testimony should be stricken from the record and the ALJ's 

15 
BARNEIT NO. 2657 

D&O dismissed with prejudice. For the reasons set forth below, I do not find 

Respondent's assertions in this regard to be persuasive. 

A. 

Respondent first contends that the ALJ erred in allowing the telephone testimony 

of Coast Guard witnesses because the Coast Guard failed to file a pre-hearing motion 

requesting telephone testimony. Respondent contends that such a motion is required 

pursuant to 33 C.F.R. § 20.707(a). 

33 C.F.R. § 20.707(a) states that: 

The ALJ may order the taking of the testimony of a witness by telephonic 

conference call. A person presenting evidence may by motion ask for the 

taking of testimony by this means. The arrangement of the call must let 

each participant listen to and speak to each other within the hearing of the 

ALJ, who will ensure the full identification of each so the reporter can 

create a proper record. 

While I agree with Respondent that 33 C.F.R. § 20.707(a) requires that a "person 

presenting evidence" make a motion requesting that such evidence be presented by 

telephone testimony, I do not agree that the procedural rules require that such motions be 

made in writing prior to the commencement of the hearing. 

The rule governing general motion practice in Coast Guard suspension and 

revocation proceedings is found at 33 C.F.R. § 20.309. While I acknowledge that the 

regulation primarily focuses on the filing of written motions, I do not believe that it 

requires either that all procedural motions be filed before a hearing commences or that all 

motions be in writing. Indeed, the regulation states that "[e]ach motion must be in 

writing; except that one made at a hearing will be sufficient if stated orally upon the 

record, unless the ALJ directs that it be reduced to writing." See 33 C.F.R. § 20.309(c). 

Therefore, a party may, contrary to Respondent's assertion, comply with the applicable 

16 
BARNETT NO. 2657 

procedural regulations by either filing a written motion for telephone testimony in 

advance of the hearing or by orally requesting the use of telephone testimony at the 

hearing. 

In this case, the record shows that the Coast Guard did not file a written motion 

for telephone testimony prior to the hearing. However, the IO made a request to the ALJ 

for telephone testimony at the hearing prior to calling his first witness. Respondent 

strongly objected. [Tr. at 28-32] Thereafter, the following discussion took place: 

THE COURT: 

Do you need additional time to prepare your defense, Mr. Morgan? 

MR.MORGAN: 

I don't know, Judge ... They've announced that they're ready. 

They've announced, just less than five minutes ago that they're ready. 

Now, if they haven't complied, it shouldn't be at my client's 

detriment because he's ready to go. 

They haven't filed the necessary motions. They haven't complied 

with the disclosure rules in a timely manner. And then when they did 

attempt to comply, it wasn't complete. 

I'd ask the ALJ to follow the regulations and exclude the 

testimony. We've made our record and we're waiting for a ruling. 

THE COURT: 

I'm not going to exclude the testimony. If you want additional 

time, I will grant it to you. 

You want additional time? 

MR.MORGAN: 

Judge, I've made my objections. You've made your ruling. 

THE COURT: 

All right. Go ahead with your case, Mr. Investigating Officer. 

[Tr. at 31-32] Respondent reasserted his objection to the use of telephone testimony 

before the Coast Guard called its second witness, a witness who was also set to testify via 

17 
BARNETT NO. 2657 

telephone conference call. [Tr. at 52; 54-55] Thereafter, the ALJ again offered 

Respondent "additional time" to prepare his defense and Respondent refused, electing to 

continue on with the hearing. [Tr. at 55] 

Regardless of how the Coast Guard made its request for telephone testimony, the 

record shows that the ALJ offered Respondent additional time to prepare, thus, 

preventing the perceived procedural defect from causing any harm to Respondent. 

Respondent failed to avail himself of such cure. Since the ALJ has a duty to construe the 

applicable procedural rules "so as to secure a just, speedy, and inexpensive 

determination" in these proceedings and given Respondent's election to continue on with 

the hearing after being offered additional time to prepare, I do not find that the ALJ erred 

in allowing the use of telephone testimony in this case. See 33 C.F.R. § 20.103(a). 

B. 

Respondent next contends that in failing to file a motion for telephone testimony, 

the Coast Guard "failed to follow its own policy and the failure of the ALJ to enforce that 

policy ... requires that the testimony of Mr. Azary and Mr. Ellis, as well as the exhibits in 

connection with their testimony, be stricken from the record." Respondent supports his 

assertion, in this regard, by citing Administrative Law Judges Internal Practices and 

Procedures Document ALJIPP 16722.4, 04 March 1986. Respondent's reliance on 

ALJIPP 16722.4 is misplaced. 

A careful reading of ALJIPP 16722.4 shows that the document is intended only to 

serve as guidance for ALJs regarding the issue of telephone testimony. On its face, the 

ALJIPP states that it seeks to "establish maximum flexibility" for ALJs with respect to 

18 
BARNETT NO. 2657 

telephone testimony and, in so doing, promulgated "no fixed rules" on the subject. 

Accordingly, an ALJ cannot contravene Coast Guard policy by failing to follow the 

ALJIPP. Moreover, the ALJIPP, itself, must be viewed in the proper historical context. 

The ALJIPP was promulgated in 1986, when the use of telephone testimony in Coast 

Guard suspension and revocation proceedings was first being explored. While it is 

customary to utilize telephone testimony in suspension and revocation proceedings today, 

that was not the case in the early to mid 1980s, even though the then existing regulations 

expressly allowed for the use of telephone testimony in certain circumstances, such as the 

taking of depositions. 2 It was within this background that the ALJIPP was promulgated, 

to offer guidance to Coast Guard ALJs regarding the use of a burgeoning technology. 

Since the issuance of the ALJIPP, the use of telephone testimony has been addressed in 

numerous Commandant Decisions on Appeal and has, in most circumstances, been 

upheld as a mechanism necessary to ensure that neither the government nor Respondents 

are unnecessarily burdened by being required to secure the in-person testimony of 

witnesses whose primary residence or place of business is far removed from the hearing 

location. See e.g., Appeal Decisions 2492 (RATH) and 2476 (BLAKE) (both cases, from 

the late 1980s, affirm ALJ decisions allowing the use of telephone testimony because its 

use is consistent with both the principles of due process and notions of judicial economy). 

Viewed in this context, Respondent's reliance on ALJIPP 16722.4 is misplaced. 

c. 

Respondent's final contention with respect to telephone testimony is two-fold. 

First, Respondent contends that the Coast Guard's regulation allowing the telephone 

2 The predecessor to the current "telephone testimony" regulation, 33 C.F.R. § 20.707, was found at 46 

C.F.R. § 5.535(f). 

19 
BARNETT NO. 2657 

testimony of witnesses, 33 C.F.R. § 20.707, is not in accord with two Acts of Congressthe Federal Rules of Evidence and the Federal Rules of Civil Procedure (hereinafter 

"Federal Rules" or "Rules")- which do not allow the testimony of witnesses by 

telephone. As a result, Respondent contends that because the Federal Rules ''take 

precedence over inconsistent or unconstitutional Coast Guard regulations," the ALJ erred 

in allowing the telephone testimony of the Coast Guard's witnesses over Respondent's 

objection. [Respondent's Appeal Brief at 12J Second, Respondent contends that the ALJ 

violated his due process rights by allowing Coast Guard witnesses to testify by telephone 

at the hearing because, in so doing, the ALJ deprived Respondent "of meaningful crossexamination because he did not have the benefit of being able to personally confront the 

Coast Guard's witnesses." [Id.] I do not find either of Respondent's assertions 

persuasive. 

First, contrary to Respondent's assertion, the Federal Rules are not applicable to 

all proceedings; rather, their applicability is determined by the Rules, themselves. A 

review of the Rules shows that although they govern procedures in numerous courts of 

the United States, they are not expressly made applicable to either administrative 

proceedings, in general, or Coast Guard suspension and revocation proceedings in 

particular. See Fed. R. Evid. 101; Fed. R. Evid. 1101; Fed. R. Civ. P. I; Fed. R. Civ. P. 

81 . As a result, administrative agencies, like the Coast Guard in this case, "are not bound 

by the strict rules of evidence governing jury trials." See, e.g., Sorenson v. National 

Transp. Safety Bd., 684 F. 2d 683, 686 (10th Cir. 1992). Therefore, because strict 

adherence to the Federal Rules is not required in these proceedings, there is no conflict 

20 
BARNETI NO. 2657 

between the Coast Guard's regulation that allows the use of telephone testimony and the 

Federal Rules which prohibit such testimony. 

Respondent's second assertion- that the use of telephone testimony deprived him 

of the right to "personal confrontation" and "destroyed ... his fundamental constitutional 

and regulatory rights to a fair hearing"-similarly fails. [Respondent's Appeal Brief at 

13-14] 

In addition to the fact that 33 C.F.R. § 20.707 expressly authorizes an ALJ to hear 

the testimony of a witness by telephone, it is worth noting that personal confrontation is 

not a right of the Respondent at a suspension and revocation hearing. Appeal Decisions 

2538 (SMALL WOOD) and 2476 (BLAKE). As a result, past Commandant decisions 

have held that the taking of telephonic testimony is consistent with the constitutional 

concept of due process and is sufficient to protect the legitimate interests of the 

Respondent. Appeal Decisions 2538 (SMALL WOOD), 24 76 (BLAKE), aff d sub nom., 

Commandant v. Blake, NTSB Order EM-156 (1989), 2252 (BOYCE); See also Brown v. 

Gamage, 377 F.2d 154 (D.C. Cir. 1967) (stating that there is no right to personally 

confront a witness in a purely administrative hearing where procedural due process 

safeguards are in place). 

The Coast Guard regulation permitting telephone testimony provides for an 

orderly, dignified, and credible procedure, ensuring proper identification of all parties and 

reliable cross-examination. Appeal Decisions 2492 (RA TH) and 24 76 (BLAKE). The 

regulation is designed to expedite the hearing and quell costs when long distances must 

be traveled by prospective witness. Appeal Decisions 2538 (SMALL WOOD) and 2476 

(BLAKE). In this case, the hearing was convened in New Orleans, Louisiana, and the 

21 
BARNEIT NO. 2657 

witnesses were testifying from various cities around the United States- Dr. Azary 

testified from Atlanta, Georgia, while Mr. Ellis testified from La Mesa, California. 

Under such circumstances, the taking of telephone testimony from those witnesses was 

more convenient and judicially efficient than requiring each witness to travel to New 

Orleans, Louisiana, for the hearing. In addition, the record shows that the procedures 

used by the ALJ to take the telephone testimony complied with Coast Guard regulations. 

The record shows that, pursuant to 33 C.F.R. § 20.706, each witness was sworn in under 

oath and, in accordance with 33 C.F.R. § 20.707, the witnesses were fully identified for 

the record and subject to direct and cross-examination. Therefore, Respondent's 

argument with respect to his ability to personally confront the Coast Guard's witnesses 

during cross-examination fails. 

III. 

The AL! erred in admitting the testimony of the Coast Guard's witnesses and the Coast 

Guard's exhibits. 

On appeal, Respondent asserts that the ALJ erred in admitting the testimony of 

the Coast Guard's witnesses and exhibits because the Coast Guard did not- in 

accordance with its own discovery procedures- submit a witness and exhibit list 15 or 

more days before the hearing. Respondent contends, absent any support, that similar 

"[r]egulatory violations in S&R hearings by the Coast Guard have become too common" 

and, as a result, requests that I "send ... a message that these violations will not be 

tolerated" by dismissing the Coast Guard's complaint against Respondent with prejudice. 

[Brief of Appellant at 15-16] 

33 C.F.R. § 601(c)(2) states that " [u]nless the ALJ orders otherwise, the parties 

shall exchange witness lists and exhibits 15 days or more before the hearing." While the 

22 
BARNETT NO. 2657 

record shows that Respondent complied with this requirement when he submitted his 

witness and exhibit list on January 13, 2003, by filing its witness and exhibit list on 

January 17, 2003, the Coast Guard did not do so. Irrespective of this error, the ALJ 

admitted the testimony of the Coast Guard's witnesses and the Coast Guard's exhibits 

into the record over Respondent's objection. The ALJ expfained his decision to do so in 

his "Order Denying Respondent's Second Motion for Disqualification," dated April 4, 

2003, as follows: 

Although the document was transmitted on different days, the same 

exhibit and witness list was forwarded to the Respondent on January 17, 

2003, in accordance with 33 CFR 20.601(a)(l) and (2). The Respondent 

had adequate time to respond to the exhibit and witness list and prepare 

for the hearing. On five occasions during the hearing, the undersigned 

ALJ offered to grant Respondent's attorney, Mr. Morgan, additional time 

to prepare for the hearing and Mr. Morgan declined all offers. The 

Respondent has failed to demonstrate how receipt of the witness and 

exhibit list 12 days before the hearing and declining five offers of 

continuance by this ALJ resulted in prejudice to the Respondent. 

[citations omitted] [Order Denying Respondent's Second Motion for Disqualification at 

6-7] After a thorough review of the record, I do not believe that the ALJ erred in so 

concluding. 

Coast Guard suspension and revocation actions are administrative proceedings 

that are remedial, not penal in nature and are "intended to help maintain standards for 

competence and conduct essential to the promotion of safety at sea." 46 C.F.R. § 5.5. 

While the Coast Guard has enacted regulations to protect the due process rights of 

individuals during the administration of their cases, those regulations are to "be construed 

so as to obtain a just, speedy, and economical determination of the issues presented." 

46 C.F.R. § 5.51. 

23 
BARNETT NO. 2657 

The Coast Guard's general discovery rules, at 33 C.F.R. § 20.601, et seq., are of 

particular import here. A review of the Interim Rule through which 33 C.F.R. § 20.601 

was promulgated shows that the regulation was not intended to impose "criminal-style" 

procedural hurdles on either Respondents or the Government~ instead, the regulation was 

promulgated to afford ALJs a tool to ensure that Coast Guard S&R hearings did not 

become "trials by ambush." See Rules of Practice, Procedure, and Evidence for 

Administrative Proceedings of the Coast Guard, 64 Fed. Reg. 28,054-01 (May 24, 1999). 

In determining whether the ALJ erred in allowing the testimony of the Coast 

Guard's witnesses and presentation of its exhibits even though the discovery violation 

occurred, I am reminded that in these proceedings, the ALJ is afforded broad authority to 

admit any evidence that he deems relevant. 33 C.F.R. § 20.802. As a result, I may only 

reverse the ALJ's decision if his findings are arbitrary, capricious, clearly erroneous, or 

based on inherently incredible evidence. Appeal Decisions 2584 (SHAKESPEARE), 

2570 (HARRIS), aff NTSB Order No. EM-182 (1996), 2390 (PURSER), 2363 CMANN), 

2344 (K.OHAJDA), 2333 (AYALA), 2581 (DRIGGERS), and 2474 (CARMIENKE). 

In this case, there is simply no evidence to indicate that Respondent was 

prejudiced by the Coast Guard's failure to comply with the general discovery 

requirements. Although the record shows that the Coast Guard provided its witness and 

exhibit list to Respondent three days late, Respondent has not provided any evidence to 

indicate that the abbreviated time frame did him some actual harm. Most notably, 

although the ALJ five times offered Respondent additional time to prepare during the 

hearing, Respondent declined all such offers and indicated-irrespective of the 

abbreviated time frame--that he was prepared to proceed with the presentation of his 

24 
BARNETT NO. 2657 

case. [Tr. at 30-32, 37, 55] Under these circumstances, even if the ALJ's actions were 

error, it would not be reversible error. Accordingly, I am not persuaded by Respondent's 

third assignment of error. 

IV. 

The AL! erred in his denial of Respondent 's motions for disqualification. 

While his case was before the ALJ, Respondent filed two verified motions for 

disqualification. In his first motion, Respondent sought disqualification of the ALJ due 

to the Coast Guard's disclosure to the ALJ of Respondent's prior disciplinary record 

before the hearing convened. In his second motion, Respondent sought disqualification 

of the ALJ due to ex parte communications between the ALJ and the Coast Guard- prior 

to and during the hearing- and because he observed the ALJ being chauffeured to and 

from the Hearing by uniformed Coast Guard Personnel. The ALJ denied both motions. 

On appeal, Respondent contends that the combination of these occurrences shows not 

only that the ALJ pre-determined how he would rule on critical issues to the case, such as 

the allowance of witness testimony and the presentation of evidence, but also calls the 

ALJ's impartiality into question. 

A. 

I will begin by addressing Respondent's first "Verified Motion for 

Disqualification." The record shows that on January 15, 2003, before the hearing 

convened, the Coast Guard filed a Motion to Withdraw (hereinafter "Motion to 

Withdraw") a settlement agreement offered to Respondent on November 7, 2002. The 

Motion to Withdraw was premised on the fact that, at the time that the Coast Guard 

offered to enter into a settlement agreement with Respondent, the Coast Guard was 

25 
BARNETT NO. 2657 

unaware that Respondent had a prior record of similar violations with the Coast Guard. 

The Coast Guard provided information concerning Respondent's prior record- a copy of 

a Consent Order issued by the presiding ALJ against Respondent in September, 1996, for 

drug use-to support its Motion to Withdraw. Due to the disclosure of Respondent's 

prior record in this manner, on January 28, 2003, Respondent filed his fust "Verified 

Motion for Disqualification" of the ALJ. Since the hearing convened the following day, 

the ALJ allowed Respondent to argue his motion orally at the hearing. After hearing 

Respondent's argument, the ALJ denied Respondent's motion for disqualification. 

Respondent cites Commandant Decision on Review 15 (SOILEAU), to support his 

conclusion that when a Respondent's prior disciplinary record is disclosed to an ALJ 

before the hearing, the ALJ is "precluded from imposing a valid sanction" and must 

disqualify himself. I am not persuaded by Respondent's assertion in this regard. 

Respondent's reliance on Commandant Decision on Review 15 CSOLIEU) is 

misplaced. Although Respondent's analysis of the holding in Solieu- that an ALJ who is 

made aware of a Respondent's prior disciplinary record is precluded from imposing a 

valid sanction in the case- is correct, that analysis fails to acknowledge that the 

regulations effecting the disclosure of a Respondent's prior disciplinary record have 

changed substantially since the Solieu decision was issued in 1981. 

In 1999, the Coast Guard initiated a regulatory project that revised the Rules of 

Practice, Procedure and Evidence applicable to Coast Guard administrative proceedings. 

The regulatory project included several changes to the regulations governing the 

admissibility and consideration of the prior record of a Respondent during the suspension 

and revocation process. To that end, while the predecessor regulation, 46 C.F.R. 

26 
BARNEIT NO. 2657 

§ 5.565(a), stated that ''the prior record of the respondent may not be disclosed to the 

Administrative Law Judge until after conclusions have been made as to each charge and 

specification, and then only if at least one charge has been found proved," no such 

provision was included in the subsequently promulgated regulations. See 33 C.F.R. 

§ 20 .1315. The Interim Rule explained the omission by stating that: 

This section's [33 C.F.R. § 20.1315] predecessor [46 CFR § 5.565(a)] 

contained a general prohibition of disclosure of prior records before the 

ALJ makes his findings (made on the facts of the case). We believe that 

we should not totally prohibit the disclosure of prior records. 

[64 Fed. Reg. 28,054-01, "Rules of Practice, Procedure, and Evidence for Administrative 

Proceedings of the Coast Guard," May 24, 1999.] In light of these regulatory changes, 

Solieu 's conclusion that the disclosure of a Respondent's prior disciplinary record 

precludes the ALJ "from imposing a valid sanction in the case," is inapplicable to 

Respondent's case. 

Having determined that the holding in Solieu has no bearing on Respondent's 

case, I must now determine whether Respondent's ancillary argument- that the 

disclosure of Respondent's prior record could have allowed the ALJ to prejudge 

Respondent's case and required that ALJ's disqualification-has merit. Respondent 

correctly notes that Coast Guard regulations allow the admission of Respondent's prior 

record in limited circumstances; evidence of the Respondent's prior record may be 

presented at any time by Respondent or used by the Coast Guard for impeachment and 

rebuttal purposes during the hearing. See 33 C.F.R §§ 20.1309 and 20.1315. In this case, 

the record shows the evidence of Respondent's prior record was submitted to the ALJ by 

the Coast Guard before the hearing convened. As such, it was not "admitted into 

evidence," but was, most certainly, available for consideration by the ALJ before it 

27 
BARNETT NO. 2657 

should have been. That factor, alone, is not sufficient to justify the disqualification of the 

ALJ. 

Pursuant to regulation, a respondent may request that the ALJ withdraw from the 

proceedings on the grounds of personal bias or other disqualification. 33 C.F.R. 

§ 20.204(b). After making such a request, the party seeking disqualification carries the 

burden of proof. Schweiker v. McClure, 456 U.S. 188, 102 S.Ct. 1665 (1982). The 

courts have long stated that there is a rebuttable presumption that hearing officers are 

unbiased and that bias is required to be of a personal nature before it can be held to taint 

proceedings. Roberts v. Morton, 549 F.2d 158 (10th Cir. 1977). Prejudgment also serves 

as a basis for disqualification. As a result, a proceeding is subject to challenge if it 

appears that the action has been prejudged. Gilligan, Will & Co. v. SEC, 267 F.2d 461 

(2d Cir. 1959). In order to establish a disqualifying prejudgment, a respondent must 

demonstrate that the mind of the ALJ is "irrevocably closed" on the particular issue being 

decided. FTC v. Cement Institute, 68 S.Ct. 793, 92 L.Ed. 1010 (1948). Accordingly, a 

hearing officer should be disqualified only when there has been a clear and convincing 

showing that the agency member has an unalterably closed mind on matter critical to the 

disposition of the proceeding. Association of National Advertisers v. FTC, 617 F.2d. 

1151 (D.C. Cir. 1979). 

In this case, Respondent does not contend that the disclosure of his prior record 

caused the ALJ, in any way, to prejudge the matter; rather, Respondent contends simply 

that the ALJ's knowledge of Respondent's prior record, per se, requires that the ALJ 

disqualify himself. Irrespective of whether the Coast Guard properly submitted evidence 

of Respondent's prior record to the ALJ, Respondent's assertion in this regard is 

28 
BARNETT NO. 2657 

untenable. The ALJ who presided over this case also presided over the case that gave 

rise to the prior record, the disclosure of which Respondent now contests. In Appeal 

Decision 1554 (McMURCHIE), a case involving the denial of a Respondent's motion for 

disqualification, the issue of an ALJ hearing several cases involving the same mariner 

was discussed as follows: 

If the mere fact that an ALJ had knowledge of a prior action against a 

respondent, without a showing of actual bias or prejudice, were enough to 

require disqualification of the Examiner, the machinery of these remedial 

hearings could often be caused to come to an administrative impasse. 

There are just so many ports; there are just so many Examiners; and 

seamen often ship from and to the same port or area for years at a stretch. 

The realities of shipping are such that an often offending seaman may well 

end up for hearing in the same port for each offense. Surely, it is 

inconceivable that an offender could be heard to claim that his case could 

not be heard merely because he had chosen to commit offenses triable in 

the same jurisdiction. The true test, the only realistic test, then is actual 

prejudice or bias. 

See also Commandant Decision on Appeal 2158 (McDONALD). A similar view, no 

doubt, applies to this case. On appeal, Respondent has made no showing of actual bias 

on the part of the ALJ. Instead, his assertion is that knowledge of the prior action is 

sufficient ground for disqualification of the ALJ. I do not agree. Absent a clear showing 

of prejudice or bias-a showing not made here- a motion for disqualification in these 

proceedings must fail. Accordingly, the ALJ did not err in denying Respondent's first 

Motion to Withdraw. 

B. 

I will now address the ALJ's denial of Respondent's "2nd Verified Motion for 

Disqualification." In his "2nd Motion for Disqualification," Respondent sought 

29 
BARNETT NO. 2657 

disqualification of the ALJ based on his assertion that the ALJ and the 10 engaged in ex 

parte communications and because he believed that the ALJ's conduct during a recess of 

the hearing-the ALJ was driven from the hearing location by uniformed members of the 

Coast Guard-could call the ALJ's impartiality into question. In his April 4, 2003, 

"Order Denying Respondent's 2nd Motion for Disqualification," the ALJ thoroughly 

addressed both the alleged ex parte communications and Respondent's allegation of bias 

on the part of the ALJ; however, he ultimately found that "Respondent's motion for 

disqualification filed 23 days after the hearing is untimely and is subject to denial 

on ... [that] ... basis alone." [Order Denying Respondent's 2nd Motion for Disqualification 

at 3] On appeal, Respondent cites 33 C.F.R. § 20.204(b) to support his assertion that a 

motion for disqualification is timely as long as it is filed before the issuance of the ALJ's 

decision in the case. I do not agree. 

33 C.F.R. § 20.204(b) states as follows: 

Until the filing of the ALJ's decision, either party may move that the ALJ 

disqualify herself or himself for personal bias or other valid cause. The 

party shall file with the ALJ, promptly upon discovery of the facts or other 

reasons allegedly constituting cause, an affidavit setting forth in detail the 

reasons. 

Respondent's argument on appeal shows that he has misread the regulation. While 

Respondent is correct that a motion for disqualification may be filed at any time prior to 

the issuance of the ALJ's decision, he fails to acknowledge that 33 C.F.R. § 20.204(b) 

specifically requires that a party "promptly upon discovery of the facts or other reasons 

allegedly constituting cause ... [file] ... an affidavit setting forth in detail the reasons" 

supporting disqualification. A review of Respondent's 2nd Motion for Disqualification 

shows that Respondent learned of the alleged ex parte communications and the actions 

30 
BARNETT NO. 2657 

giving rise to his claim of bias during the course of the hearing. As a result, he made an 

oral motion at the hearing, to disqualify the ALJ. Under the requirements set forth in 

33 C.F.R. § 20.204(b), he was required to file an affidavit in support of his motion 

promptly thereafter. However, as the ALJ noted in his "Order Denying Respondent's 

2nd Motion for Disqualification," Respondent did not file the requisite affidavit 

supporting that motion until 23 days later. 

The word "prompt" is not an ambiguous term. It has a commonly known 

definition: "To act immediately, responding on the instant." Black's Law Dictionary 

1214 (6th ed. 1990). In this case, Respondent waited 23 days to file the requisite 

affidavit. In so doing, he did not act immediately and, as a result, failed to comply with 

the requirements of 33 C.F.R. § 20.204. Past Commandant Decisions on Appeal have 

stated that the regulatory requirements for disqualification are not "mere technicalities to 

be waived by the Commandant." See Commandant Decisions on Appeal 2495 CZELVIC) 

and 2232 CMILLER)3. Accordingly, I will not waive those requirements here and 

because the affidavit supporting Respondent's 2nd Motion for Disqualification was not 

timely filed, the ALJ did not err in denying that motion. As a result, further consideration 

of the underlying substantive issues is inappropriate here. 

v. 

The Decision of the Vice Commandant on Appeal No.2535 (Sweeney) was an 

abuse of discretion, arbitrary and capricious and improper rulemaking which deprived 

3 These appeal decisions discuss disqualification of the AU under the regulation that preceded 33 C.F.R. 

§ 20.204. While the predecessor regulation, 46 C.F.R. § 5.507, was repealed through a Coast Guard 

regulatory project to revise the Rules of Practice, Procedure and Evidence applicable to Coast Guard 

administrative proceedings, the regulation that replaced it, 33 C.F.R. § 20.204, retained many of the 

requirements set forth in the original regulation, including the requirement that a party seeking the 

disqualification of the ALJ file a complete and timely affidavit to support tbe request. Accordingly, it is 

proper for me to rely on these decisions in this case. 

31 
BARNETT NO. 2657 

respondent of the ability to raise the statutory defense of cure as provided for in 46 USC 

§7704(c). 

Respondent's final assertion of error centers on the issue of cure. In his D&O, the 

ALJ addressed the issue, in relevant part, as follows: 

In this case, the fact that the Respondent previously participated in the 

cure program after testing positive for dangerous drugs on or about May 

28, 1996, precludes an order less than revocation from being issued. Even 

if the Respondent did not have a prior record of drug use, a continuance 

for the limited purpose of showing cure would still not be appropriate 

because the Respondent has failed to show substantial involvement in the 

cure process by proof of enrollment in an accepted drug rehabilitation 

program. Testimony of Respondent's expert witness, Kurt Schenker, that 

Respondent's participation in Alcoholics Anonymous ... meetings is 

considered a "step" in the cure process, is rejected. 

[Citations omitted] [D&O at 14-15]. Respondent contends that the Coast Guard's 

definition of the term "cure" which was initially adopted via Appeal Decision 2535 

(SWEENEY)4 and includes a requirement that mariners prove a one-year non-association 

with drugs before becoming eligible for the re-issuance of their mariner credentials, was 

the result of an improper rulemaking. Respondent supports his assertion, in this regard, 

by noting that Appeal Decision 2535 (SWEENEY) was reversed by the National 

Transportation Safety Board (hereinafter "NTSB") on appeal. Based on this assertion, 

Respondent contends that the ALJ erred in ruling that he was "bound by Sweeney ... [to 

refuse] ... to allow ... [Respondent]. .. an opportunity to perform" the six-month cure 

program recommended by Respondent's expert witness. [Respondent's Appellate Brief 

at 27-28) 

4 In Sweeney, the elements of cure were defined as: 1) successful completion of a drug abuse rehabilitation 

program; and, 2) complete non-association with drugs for a minimum of one year following completion of 

a drug abuse rehabilitation program. 

32 
BARNETT NO. 2657 

First and foremost, when the NTSB reversed Appeal Decision 2535 

(SWEENEY), it did not find that the Commandant engaged in an improper rulemaking 

by developing a definition of "cure" in that case. To the contrary, while the NTSB 

acknowledged that "rulemaking though adjudication is an acceptable method of 

interpreting legislation," it merely stated that it was improper for the question of cure to 

be addressed in that particular case because "the meaning of the statute was not litigated 

by the parties ... [and] was neither a point of controversy at the hearing nor fairly raised by 

the appellant's objections to the law judge's decision." A review of subsequent NTSB 

decisions shows that the NTSB has expressly affirmed the use of the "so-called Sweeney 

standard" to determine whether a mariner has submitted adequate evidence of cure. See 

Loy v. Wright, NTSB Order No. Em-186 (1999) at 7. Accordingly, the ALJ did not err 

in relying on Sweeney to support his conclusion that "a continuance ... [in Respondent's 

case] ... for the limited purpose of showing cure wou1d ... not be appropriate because the 

Respondent has failed to show substantial involvement in the cure process by proof of 

enrollment in an accepted drug rehabilitation program." [D&O at 15] 

On appeal, Respondent further contends that the definition of "cure" found at 

46 C.F.R. § 5.205(b), which requires only a six-month non-association with drugs, is the 

definition that should apply to Respondent's case. At the hearing, Respondent presented 

the testimony of a board certified substance abuse counselor, Mr. Kurt Schenker. Mr. 

Schenker testified that a 12 month non-association was counter-productive to cure and 

that 6 months was a reasonable time-period before a license holder should be able to 

apply to the Medical Review Officer for a return to duty letter. [Tr. at 121-145] 

Respondent's assertion, in this regard, lacks legal merit. 

33 
BARNEIT NO. 2657 

While Respondent is correct that 46 C.F.R. § 5.205 allows mariners to request the 

return of their credentials after, among other things, a six-month non-association with 

drugs, the regulation does not apply to Respondent in this case. 46 C.F.R. § 5 .205 sets 

forth the requirements for cure when a mariner "voluntarily surrenders" his credential. In 

this case, Respondent did not do so; rather, an ALJ ordered the revocation of 

Respondent's mariner credentials. As a result, the ALJ was correct to require the oneyear non-association period set forth in 46 C.F.R. § 5.901(d),which expressly applies to 

persons whose mariner credentials have been revoked for wrongful use of drugs. 

That said, the record shows that the ALJ's decision to deny a continuance in 

Respondent's case for the purposes of showing cure did not center on the duration of 

Respondent's involvement in a drug abuse rehabilitation program; rather, the ALJ based 

his decision on the fact that the drug abuse rehabilitation program in which Respondent 

participated, Alcoholics Anonymous, did not qualify as a "bona fide drug abuse 

rehabilitation program" under Sweeney. On this point, the ALJ stated as follows: 

A "bona fide drug abuse rehabilitation program" is defined as a program 

designed to eliminate physical and psychological dependence on drugs, 

which is certified by a governmental agency, such as a state drug/alcohol 

abuse administration, or in the alternative, certified by an accepted 

independent professional association, such as the Joint Commission on 

Accreditation of Health Care Organizations (JCAHO). AA [Alcoholics 

Anonymous] on the other hand is a support group for men and women 

seeking to maintain sobriety from alcohol ... AA does not keep 

membership records or case histories, make medical or psychiatric 

prognosis, or provide letters of reference to agencies or employers. 

Therefore, AA is not a bona fide drug abuse rehabilitation program 

contemplated by Sweeney. [Citations Omitted) 

[D&O at 15) As I have already stated, I may only reverse the ALJ's decision if his 

findings are arbitrary, capricious, clearly erroneous, or based on inherently incredible 

evidence. Appeal Decisions 2584 (SHAKESPEARE), 2570 (HARRIS), aff' NTSB Order 

34 
BARNETT NO. 26:57 

No. EM-182 (1996), 2390 (PURSER), 2363 (MANN), 2344 (KOHAJDA), 2333 

(AYALA), 2581 (DRJGGERS), and 2474 (CARMIENKE). In this case, the ALJ found 

that Alcoholics Anonymous did not meet the definition of a bona find drug abuse 

rehabilitation program. I agree and, as a result, I do not find that the ALJ erred in finding 

that Respondent had not proved cure and in, thereafter, ordering the revocation of 

Respondent's mariner credentials. Accordingly, Respondent's final basis of appeal is 

denied. 

CONCLUSION 

The actions of the ALJ had a legally sufficient basis and his decision was not 

arbitrary, capricious, or clearly erroneous. Competent, reliable, probative, and substantial 

evidence existed to support the findings and order of the ALJ. Therefore, I find 

Respondent's bases of appeal to be without merit. 

ORDER 

The Decision and Order of the Administrative Law Judge is AFFIRMED. 

TERRY M. CROSS 

Vice Admiral, U.S. Coast Guard 

Vice Commandant 

Signed at Washington, D.C., trusrJ!day of ~ 2006. 

35