1

UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

JESSICA RENEE PALMA 

Respondent

_________________________________

Docket Number 2018-0424

Enforcement Activity No. 5759048

DECISION AND ORDER

Issued: January 09, 2020

By Administrative Law Judge: Honorable George J. Jordan

Appearances:

LT Nathaniel R. Herring

Marine Safety Detachment Ketchikan

For the Coast Guard

JESSICA RENEE PALMA, Pro se

For the Respondent
2

I. BACKGROUND

The United States Coast Guard brought this administrative action under 46 U.S.C. § 46 

USC 7703(1)(A) and its underlying regulations at 46 C.F.R. Part 5, seeking to revoke 

Respondent Jessica Renee Palma’s Merchant Mariner Credential (MMC or Credential). On 

January 3, 2019, the Coast Guard filed a complaint against Respondent, alleging she violated 46 

C.F.R. § 4.06–5 by failing to take a required drug test following a serious marine incident aboard 

the M/V MALASPINA on September 19, 2018. Respondent filed a timely answer, admitting the 

jurisdictional allegations but denying the factual allegations, and asking for a formal hearing.

On April 30, 2019, I held a hearing in Ketchikan, Alaska. LT Sharyl Pels and LT 

Nathaniel Herring represented the Coast Guard. Respondent represented herself. Following the 

hearing, I provided the transcript to both parties and gave them the opportunity to file posthearing briefs containing proposed findings of fact, proposed conclusions of law, and argument 

supporting their positions. Both parties filed timely briefs. I have carefully reviewed the entire 

record in this case, including the testimony, exhibits, applicable statutes, regulations, and case 

law, and find the allegation of a violation of law or regulation NOT PROVED.

II. FINDINGS OF FACT

1. Respondent is the holder of a Coast Guard-issued MMC. [Ex. CG-01].

2. Alaska Marine Highway System (AMHS) has employed Respondent since 2013. [CG-04; 

Tr. at 38-39].

3. AMHS required Respondent to hold an MMC in order to serve in this position. [Tr. at 19-

21].

4. AMHS offers drug and alcohol training to new employees, which Respondent completed 

upon being hired. [Tr. at 22-24].

5. Anthony Karvelas is the operations manager and Designated Employer Representative 

(DER) at AMHS. [Tr. at 18].
3

6. Mr. Karvelas is familiar with the orientation given to new employees, including training 

on the Alaska Maine Highway Drug and Alcohol Policy, and verified that 

Respondent completed the orientation and training. [Tr. at 22-25; CG-05].

7. Respondent received training on the 2010 version of the policy, which requires crew 

members who are involved in a serious marine incident to be drug tested within 32 

hours of the incident. [Tr. at 33-34].

8. Subsequent revisions, including the May 2018 version in effect at the time of the 

incident, maintain the same language. [Tr. at 35; CG-05].

9. On September 19, 2018, Respondent served as an oiler aboard the M/V MALASPINA. 

[Tr. at 19, 21].

10. On September 19, 2018, Respondent slipped on an oily deck plate in the engine room of 

the M/V MALASPINA and injured her knee. [Tr. at 40, 64].

11. Katherine Gregoratos was the purser on board the M/V MALASPINA on September 19, 

2018. [Tr. at 56-57].

12. The standing orders for AMHS pursers are to treat any accident or illness where the 

person gets off the ship as a potential SMI. [Tr. at 70-71].

13. A crew member informed Ms. Gregoratos that there had been an accident in the engine 

room and she was needed. [Tr. at 59].

14. When Ms. Gregoratos arrived, the third engineer had gotten Respondent some ice for her 

knee. [Tr. at 59].

15. They did not move Respondent because they were unsure of the seriousness of her injury. 

[Tr. at 59].

16. Ms. Gregoratos told Respondent about an orthopedic surgeon in Juneau who she thought 

was very good, and said Respondent could choose to go there or could be seen at an 

emergency room. [Tr. at 60].

17. Ms. Gregoratos and Respondent had a discussion about worker’s compensation and Ms. 

Gregoratos took some notes on a small piece of paper and gave it Respondent. [R-A; 

Tr. at 60].

18. The note mentions calling a clinic for an appointment, calling worker’s compensation, 

giving the doctor the unfit for duty form, and confirming receipt of the unfit for duty 

form with AMHS dispatch, but it does not mention anything about drug testing. [R-A;

Tr. at 77-78].

19. Ms. Gregoratos administered an alcohol test to Respondent, then left the engine room to 

gather necessary paperwork. [Tr. at 61].
4

20. Ms. Gregoratos placed Respondent’s copy of the alcohol test, blank unfit for duty forms, 

the injury report for worker’s compensation, and the drug screening referral form into 

a manila envelope. [Tr. at 62].

21. Ms. Gregoratos brought the envelope to Respondent in the ADA van on the car deck, 

where Respondent had moved in anticipation of leaving the ship. [Tr. at 62-63].

22. Although Ms. Gregoratos assumed Respondent would take a drug test in Juneau before 

flying home, she did not explicitly direct Respondent to report to a specific testing 

facility that day. [Tr. at 72-73].

23. Respondent found the drug testing referral form in the manila envelope during her first 

medical appointment about a week later. [Tr. at 135].

24. After finding the referral, Respondent immediately tried to rectify the situation by 

providing a urine sample and also by self-referring for a hair follicle test, which 

shows a 90-day history. [Tr. at 135-136; R-D at 8; R-E].

25. The M/V MALASPINA’s master filed a report of marine casualty (CG-2692) on 

September 19, 2019. [CG-06; Tr. at 40].

III. DISCUSSION

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

at sea. 46 U.S.C. § 7701(a). In furtherance of this goal, Administrative Law Judges (ALJs) have 

the authority to suspend or revoke Coast Guard-issued credentials or endorsements. See 46 

C.F.R. § 5.19(b). These proceedings are conducted under the Administrative Procedure Act 

(APA), 5 U.S.C. § 551 et seq. 46 U.S.C. § 7702(a).

A. Burden of Proof

Section 7(c) of the APA places the burden of proof on the proponent of a rule or order, 

unless otherwise provided by statute. In a suspension or revocation hearing, the Coast Guard 

bears the burden of proof. 33 C.F.R. § 20.702(a). Under the APA, the fact-finder must consider 

the “whole record or those parts thereof cited by a party and supported by and in accordance with 

the reliable, probative, and substantial evidence” before assessing a sanction. 5 U.S.C. § 556(d). 

The standard of proof in administrative proceedings is the “preponderance of the evidence” 

standard, meaning a party must prove that “a fact’s existence is more likely than not.” Steadman 
5

v. SEC, 450 U.S. 91, 98 (1981); Greenwich Collieries v. Dir., Office of Workers’ Comp. 

Programs, 990 F.2d 730, 736 (3d Cir. 1993); see also Dir., Office of Workers' Comp. Programs 

v. Greenwich Collieries, 512 U.S. 267 (1994).

B. Jurisdiction

Respondent admitted to all jurisdictional elements relating to the allegations. However, 

the burden of establishing jurisdiction nevertheless remains, as “federal courts have an 

independent obligation to ensure that they do not exceed the scope of their jurisdiction, and 

therefore they must raise and decide jurisdictional questions that the parties either overlook or 

elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). See also

Appeal Decision 2656 (JORDAN) (holding that even though the respondent admitted the 

charged offense, an appeal must be granted where jurisdiction is not established). 

Since this case involves a violation of marine safety law or regulation, in order to 

establish jurisdiction the Coast Guard must prove the alleged violation occurred while 

Respondent was “acting under the authority” of a Merchant Mariner Credential. See 46 U.S.C. § 

7703. A vessel employee is considered to be acting under the authority of a credential or 

endorsement when they are required to hold it by either law or regulation, or by their employer 

as a condition of employment. 46 C.F.R. §5.57(a).

“Each individual below the grades of officer and staff officer employed on any U.S. flag 

merchant vessel of 100 GRT or more must possess a valid ... MMC issued by the Coast Guard.” 

46 C.F.R. § 15.401(e). See also 46 U.S.C.A. § 8701. On September 19, 2018, Respondent was 

serving as a Qualified Member of the Engineering Department in the rating of oiler aboard the 

Ferry M/V MALASPINA, which displaced 2928 gross tons. She was clearly acting under the 

authority of a Merchant Mariner Credential.
6

C. Violation of Law or Regulation

The Coast Guard may seek to suspend or revoke a credential if the holder was acting 

under the authority of the MMC when he or she violated or failed to comply with 46 U.C.C. 

Subtitle II, a regulation prescribed under that subtitle, or any other law or regulation intended to 

promote marine safety or protect navigable waters. 46 U.S.C. § 7703(1)(A) and 46 C.F.R. § 5.33. 

A mariner acts under the authority of an MMC when he or she is required to hold one by law or 

regulation; or by an employer as a condition for employment. 46 C.F.R. § 5.57(a). See Appeal 

Decision 2687 (HANSEN) (2010).

The Coast Guard charged Respondent with a violation of 46 C.F.R. § 4.06–5. Under this 

section, “[a]ny individual engaged or employed on board a vessel who is determined to be 

directly involved in an [Serious Marine Incident] SMI must provide a blood, breath, saliva, or 

urine specimen for chemical testing when directed to do so by the marine employer or a law 

enforcement officer.” The statutory authority for this regulation includes 46 U.S.C. §§ 2301, 

2303, 6101, and 6301.

General rules for Coast Guard chemical testing are found in 46 C.F.R Part 16. These rules 

require that “chemical testing of personnel must be conducted as required by this subpart and in 

accordance with the [DOT] procedures detailed in 49 C.F.R. Part 40.” 46 C.F.R. § 20.201(a). 

Under the relevant section of 49 C.F.R. Part 40, an employee refuses to take a drug test if he or 

she “(1) Fail[s] to appear for any test ... within a reasonable time, as determined by the 

employer, consistent with applicable DOT agency regulations, after being directed to do so by 

the employer.” 49 C.F.R. § 40.191(a)(1). DOT rules also state, “if you refuse to take a drug test, 

you incur the consequences specified under DOT agency regulations for a violation of those 

DOT agency regulations.” 49 C.F.R. § 40.191(c). The corresponding Coast Guard rule states that 

while no individual may be compelled to provide specimens for alcohol and drug testing required 

after an SMI, “refusal to provide specimens is a violation of this subpart and may subject the 
7

individual to suspension and revocation proceedings under part 5 of this chapter, a civil penalty, 

or both.” 46 C.F.R. § 4.06–5(d).

Under the regulations, individuals may refuse to submit to a mandatory chemical test 

following an SMI, but the Coast Guard may impose penalties for such refusal. See 46 C.F.R. § 

4.06-5(d) (“No individual may be compelled to provide specimens for alcohol and drug testing 

required by this part” but refusal is a violation and can result in adverse administrative 

proceedings and/or a civil fine); 33 C.F.R. § 95.040 (refusal is admissible in administrative 

proceedings). See also United States v. Hutchinson, No. 2:16-CR-168-DBH, 2018 WL 447619, 

at *4 (D. Me. Jan. 17, 2018), appeal dismissed, No. 18-1137, 2018 WL 3954202 (1st Cir. July 

25, 2018).

Accordingly, the Coast Guard must establish by a preponderance of the evidence that (1) 

an SMI occurred aboard the M/V MALASPINA, (2) Respondent was an individual employed on 

board the M/V MALASPINA, (3) she was determined to be directly involved in the SMI, (4) her 

marine employer directed her to provide a urine specimen for chemical testing, and (5) she failed

to appear for that test within a reasonable time after being directed to do so by the employer.

D. Respondent’s Injury was a Serious Marine Incident

The Coast Guard argues Respondent’s injury constituted a SMI because “Respondent 

admitted she was involved in an SMI, both in her response to the Coast Guard’s allegations and 

through her testimony at the hearing.” CG Brief at 4. The Coast Guard erroneously asserted in its 

brief that Respondent’s injury “required immediate transfer off of the vessel to seek medical 

attention and Respondent ultimately required surgery and paid leave for three months following 

the injury.” CG Brief at 4. This claim is contrary to all the evidence in the record. Respondent 

was responsible for securing her own transportation away from the ship at the next routine port 

of call. [Tr. at 86-87]. She sought medical attention approximately a week after the incident and 
8

was diagnosed with a medial collateral ligament tear, and the only treatment she eventually 

received for the injury was a course of physical therapy and chiropractic treatment. [Tr. at 139]. 

Respondent received worker’s compensation until she returned to duty at the end of January 

2019. As of the date of the hearing, she continued to receive physical therapy. [Tr. at 140].

Respondent did not specifically argue that her injury should not be considered an SMI, 

but maintained none of her job classifications required her to know what constituted an SMI. 

Furthermore, she had never heard the terminology used prior to this proceeding. Resp. Brief at 3. 

Regardless of any admissions Respondent made, I must independently consider whether the facts 

surrounding her injury establish it as an SMI. See Appeal Decision 2690 (THOMAS). 

1. Regulatory Authority: Serious Marine Incidents

The Coast Guard has regulatory authority to investigate SMIs under 46 C.F.R. Part 4. 

Individuals who are “determined to be directly involved” in an SMI are mandated to provide “a 

blood, breath, saliva, or urine specimen for chemical testing when directed to do so by the 

marine employer or a law enforcement officer.” 46 C.F.R. § 4.06-5(a). Marine employers are 

charged with ensuring that this drug and alcohol testing is conducted following the SMI. 46 

C.F.R. § 4.06-3. Alcohol testing must take place within two hours of the incident, and drug 

testing within 32 hours, unless an exception applies.

An individual is considered “directly involved” in an SMI if his or her action or failure to 

act “is determined to be, or cannot be ruled out as, a causative factor in the events leading to or 

causing a serious marine incident.” 46 C.F.R. §§ 4.06–1 to 4.06–60); Transportation Inst. v. U.S. 

Coast Guard, No. CIV. A. 88-3429, 1989 WL 222493, at *2 (D.D.C. Aug. 3, 1989). Among 

other things, an SMI may involve an injury “which requires professional medical treatment 

beyond first aid, and, in the case of a person employed aboard a vessel in commercial service, 

which renders the individual unfit to perform routine vessel duties.” 46 C.F.R. § 4.03–2. 
9

Thus, the Coast Guard must prove by a preponderance of the evidence that Respondent’s 

injury met the definition in § 4.03–1 by both requiring professional medical treatment and 

rendering Respondent unfit to perform routine vessel duties. See Martin v. SMAC Fisheries, 

LLC, No. 3:11-CV-00012-JWS, 2012 WL 2554251, at *6 (D. Alaska Mar. 1, 2012), report and 

recommendation adopted in part, No. 3:11-CV-00012 JWS, 2012 WL 1424533 (D. Alaska Apr. 

23, 2012). 

2. Respondent Received Medical Treatment Beyond First Aid

Coast Guard regulations do not define what constitutes “first aid.” However, under 

Navigation and Vessel Inspection Circular 01-15 (NVIC 01-15), the Coast Guard uses the 

Occupational Safety and Health Administration (OSHA) definitions and explanations of 

“medical treatment” and “first aid” found in 29 C.F.R. § 1904.7(b)(5). Under the OSHA 

regulations, “medical treatment” means the management and care of an injury but does not 

include visits to a physician or other licensed health care professional solely for observation or 

counseling, diagnostic procedures such as x-rays and blood tests, or first aid. “First aid” includes, 

among other things, use of non-prescription medications at their normal strength, use of nonrigid supports such as elastic bandages and wraps, and hot or cold therapy. 29 C.F.R. § 

1904.7(b)(5)(ii)(A), (E), and (F). However, for recordkeeping purposes, physical therapy and 

chiropractic treatments are considered medical treatment. 29 C.F.R. § 1904.7(b)(5)(ii)(M).

This case presents a relatively novel issue of timing, though. An instance where 

additional medical treatment is provided immediately after an injury would clearly constitute an 

SMI. However, if the mariner does not require or receive urgent medical treatment, the 

determination of whether the incident is “likely to become” an SMI is necessarily subjective and 

is left to the employer. The Coast Guard’s regulations do not contemplate the effect of a delay in 

medical attention on an injury’s classification as an SMI. Further, I was unable to find any 
10

conclusive legal precedent. In a case entitled Martin v. SMAC Fisheries, 2012 WL 2554251 (D. 

Alaska 2012), the magistrate judge ruling on a motion for summary judgment determined the 

plaintiff’s several-day delay in obtaining additional medical treatment after an on-board accident 

constituted “an issue of material fact as to whether the delay in seeking medical attention effects 

the qualification of the injury under § 4.05–1.” See SMAC Fisheries at *7. However, there was 

no decision issued on the merits of that case.

AMHS’s policy is to assume anyone who leaves a ship due to an injury will receive 

additional medical treatment because there is more downside to the company in failing to order 

chemical testing if the injury turns out to be a serious marine incident than in subjecting 

employees to testing that is ultimately unnecessary. [Tr. at 90-91]. Here, the record is clear that 

the only care Respondent received immediately after her fall was a bag of ice for her knee, which 

is considered first aid. She did not seek or receive any other medical care for approximately a 

week, which was well after the 32-hour drug testing window had passed. Although AMHS did 

not arrange for medical personnel to come on board to evaluate Respondent, a transfer to a 

medical facility, or even transportation away from the ship after she disembarked at the next port 

of call, Ms. Gregoratos provided paperwork for claiming workers’ compensation and gave 

Respondent a personal recommendation to an orthopedic surgeon in Juneau. [Tr. at 60, 86]. 

Thus, it is reasonable that AMHS personnel determined Respondent’s injury was likely to 

require some sort of medical treatment beyond first aid.

3. Respondent was Unfit for Duty as a Result of her Injury

The parties do not dispute that Respondent was ultimately deemed unfit for duty after her 

injury. The treatment she eventually received included a course of physical therapy and 

chiropractic treatment, and she was unable to return to work for more than three months. [Tr. at 

139]. While the record contains no medical evidence about whether Respondent’s ligament 
11

would have ultimately healed on its own, she testified that this type of injury “has a pretty good 

success rate of rectifying itself without surgical intervention with aggressive physical therapy.” 

[Id.].

I find the Coast Guard has shown Respondent’s injury was a serious marine injury under 

46 C.F.R. § 4.03–2.

E. AMHS did not Properly Order a Drug Test

The fact that Respondent did not submit to a drug test within 32 hours of her injury is not 

in dispute. Thus, the remaining issues I must consider are: 1) whether Respondent was properly 

notified of such a test; and, if so, 2) whether her failure to appear at the collection facility and 

take the drug test within 32 hours of the injury constitutes a refusal under 49 C.F.R. § 

40.191(a)(1) and 46 C.F.R. Part 16 and a violation of 46 C.F.R. § 4.06-5(a). If so, it would 

establish a violation of law or regulation as described by 46 U.S.C. § 7703(1)(A) and defined by 

46 C.F.R. § 5.33.

The Commandant considers the reason for ordering chemical testing to be part of the 

Coast Guard’s prima facie case. Appeal Decision 2704 (FRANKS), 2014 WL 4062506, at *6 

(2014), citing Appeal Decision 2633 (MERRILL) (2002). Thus, the ALJ is required to consider 

whether the drug test itself was properly ordered under the regulations. FRANKS at *7; see also 

Appeal Decision 2697 (GREEN) (2011). The Coast Guard argues, “Respondent was directed by 

her marine employer, through the purser onboard the MALASPINA, Ms. Gregoratos, to 

immediately submit for substance screening.” CG Brief at 4. Respondent argues she was not 

directly told where or when to report and did not learn of the need to test until she found the 

paperwork a week later. Resp. Brief at 4-5.

There is no question that marine employers are permitted to carry out drug testing 

exceeding the requirements of 46 C.F.R. Part 16. See FRANKS, 2014 WL 4062506, at * 9. Ms. 
12

Gregoratos testified AMHS’s policy is to test all crew members who leave the ship due to an onthe-job injury, and AMHS is within its rights as a marine employer to have such a policy. In this 

proceeding, however, the Coast Guard did not charged Respondent with failing to follow a 

company directive, but rather with a violation of law or regulation for failing to take a test 

mandated by 46 C.F.R. § 16.240 and 46 C.F.R. § 4.06-5. Thus, the Coast Guard is required to 

establish that the drug test was properly ordered. See FRANKS at *10.Neither DOT nor Coast 

Guard regulations specifically provide the method by which employers must notify employees 

that they must take a drug test. “Therefore, as long as an employer’s policy with respect to 

notification is in accord with the applicable DOT and Coast Guard regulations, the form and 

manner of notification may be left to the employer’s discretion.” Appeal Decision 2652 

(MOORE) (2005), aff’d sub nom. Collins v. Moore, NTSB ORDER NO. EM-201 (August 30, 

2005). 

There is scant case law interpreting whether an employer gave effective notification to an 

employee who fails to report for a drug test, and the findings are necessarily limited to the 

specific facts of the case. See MOORE (mariner received actual notice when a third-party 

administrator left a voicemail telling him to report to a specific facility within 24 hours for DOTrequired drug testing); Appeal Decision 2690 (THOMAS) (2010) (Commandant affirmed ALJ 

finding that the respondent “was directed by his marine employer to submit to a post-SMI 

chemical drug test...in a clear, unmistakable and unambiguous manner”).

It stands to reason that an effective order must be reasonably clear and unambiguous 

about the employee’s duties and responsibilities regarding a drug test. This accords with other 

instances where a mariner allegedly failed to obey a lawful order. See, e.g., Appeal Decisions 

2357 (GEESE) (1984) (considering whether the mariner “would have easily understood” the 

nature of the order); 2056 (JOHNSON) (1976) (“If the Master could not be certain that what he 

said should have been construed as an order I cannot see imposing upon the Appellant a higher 
13

level of understanding. It seems to me that a sufficient degree of specificity and certainty on the 

part of the individual who claims to have given the order is required before elements . . . of the 

offense can properly be satisfied.”). I see no reason why the standards governing a lawful order 

to take a drug test should differ from those governing other lawful orders to a mariner from his or 

her superior.

I previously considered the issue of whether an employer properly notified an employee 

about a Part 16 drug test in U.S. Coast Guard vs. Edenstrom, Docket 2015-0352 (January 12, 

2017), where I found that proper notification under 49 C.F.R. Part 40 requires an employer to tell 

an employee not only that he or she has been selected for testing, but also the details regarding 

the location of the test and the time for reporting to the testing facility.1I also found that neither 

49 C.F.R. Part 40 or 46 C.F.R. Part 16 establishes a duty on the part of a mariner to cure an 

employer’s flawed notification.

The Coast Guard argues, “this case is unlike [Edenstrom] because the respondent was 

properly notified of the details regarding the location of the test and the time for reporting to the 

testing facility.” Respondent disputes this, stating she was never informed of the need to take a 

drug test within any specific time period.

In Edenstrom, the employer notified the mariner that he and the other crew members 

would be required to take a drug test, but did not properly notify him of the time and place of the 

test. Here, in contrast, there is evidence Respondent received a referral form containing details 

about the location and time of the test together in a packet with other paperwork unrelated to the 

drug test. The question is whether Ms. Gregoratos adequately called her attention to the need to 

test and put her on notice that she was obligated to follow the instructions on the referral form.

 

1 The Coast Guard appealed my decision but later sought to withdraw its appeal. As of the date this Decision is 

issued, the Commandant has not yet issued an order granting the motion to withdraw.
14

1. AMHS’s Actions are at Odds with its Written Policy

The AMHS policy on post-accident drug and alcohol testing allows specimen collection 

to occur either aboard the ship or in another designated location. [CG-05 at 50]. It states, “When 

an employee involved in an SMI is injured, the employee’s safety is AMHS’s first concern. 

When AMHS is unable to chemically test any employee due to a medical evacuation or other 

exceptional circumstance, AMHS may utilize a Service Agent for purposes of chemically testing 

employees.” [Id. at 51 (emphasis added)]. In this instance, Ms. Gregoratos conducted alcohol 

testing aboard the vessel, but did not collect a urine specimen for drug testing. It is not clear that 

going ashore at the next scheduled stop would constitute a medical evacuation, nor was there 

another extraordinary circumstance preventing her from collecting a urine specimen on board the 

ship. However, Ms. Gregoratos testified they are “actually advised not to do the drug testing 

onboard if possible since we don’t have much experience.” [Tr. at 88]. 

Thus, although AMHS’s written policy seems to call for all chemical samples to be 

obtained onboard the ship whenever possible, in actual practice the company appears to utilize 

in-port testing facilities instead. While this is permissible under the regulations, the discrepancy 

could reasonably lead to confusion among the company’s employees.

2. AMHS Personnel Did Not Give Respondent a Verbal Order to Report for Drug 

Testing

Under AMHS policy, if an in-port collection facility is utilized, crewmembers “must 

report immediately to the collection facility for collection and testing, as notified by the Master 

or his/her representative” and no crewmember involved in a SMI may leave the vessel without 

the express permission of the Master or Master’s representative. [Id.] While considerably more 

detailed than the regulations, this AMHS policy is consistent with Coast Guard drug testing 

requirements following serious marine incidents in 46 C.F.R. Subpart 4.06. 
15

The documentary evidence I find relevant to the notification issue consists of: the note 

Ms. Gregoratos provided Respondent before she departed the vessel; Ms. Gregoratos’s notes and 

statement to investigators; an unsworn statement from Brandy Richter, the Third Engineer 

aboard the MALASPINA at the time of the incident and the AMHS policy on SMI testing in 

exhibit CG-05 at 36-63 (2018 Revision); and the drug testing referral form. The testimonial 

evidence comes only from Ms. Gregoratos and Respondent, as neither party called any other 

witnesses to describe what they saw or heard that day. Their accounts conflict in several key 

ways, and I must therefore assess the relative credibility of their testimony, and the evidence as a 

whole.

In Coast Guard suspension and revocation proceedings, “[t]he ALJ has broad discretion 

in determining the credibility of witnesses and in resolving inconsistencies in the record; ‘where 

there is conflicting testimony, it is the function of the ALJ, as fact-finder, to evaluate the 

credibility of witnesses and resolve inconsistencies in the evidence.’” Appeal Decision 2711 

(TROSCLAIR) (2015) (quoting Appeal Decision 2616 (BYRNES) (2000)). This is because the 

ALJ “can fully observe the response, character and demeanor of the witnesses in issue.” Appeal 

Decision 2519 (JEPSON) (1991). Some factors traditionally involved in a credibility 

determination include:

(1) the demeanor of the witness, (2) the inherent plausibility of the 

witness’s testimony, (3) the consistency of the testimony of the 

witness with prior statements of the witness, (4) the internal 

consistency of the witness’s statements, (5) the consistency of the 

testimony with other evidence, (6) the accuracy of the witness’s 

testimony, and (7) the interest of the witness in the outcome of the 

proceeding. Other factors may also apply but a credibility 

assessment is commonly made based on the totality of the 

circumstances after considering any relevant fact that may impact 

the witnesses [sic] credibility.

St. Claire Marine Salvage, Inc. v. Bulgarelli, No. 13-10316, 2014 WL 3827213, at *6 (E.D. 

Mich. Aug. 4, 2014), aff'd (6th Cir. 14-2135) (July 22, 2015). The essence of credibility is 
16

whether the testimony in the record is well-supported and believable; “[t]he presence of evidence 

which conflicts with the testimony of a witness is not, in itself, enough to conclusively show a 

lack of credibility of that witness when there is substantial evidence that supports his account.” 

Appeal Decision 2017 (TROCHE) (1975).

Ms. Gregoratos gave Respondent a note on September 19, 2018, detailing the steps 

Respondent needed to take after departing the vessel; however, the note said nothing about drug 

testing. [R-A]. Ms. Gregoratos contended the list was never meant to be exhaustive and they 

don’t generally do that for people, but she was trying to be helpful. [Tr. at 65, 77]. During the 

hearing, the Coast Guard asked:

Q. Ms. Gregoratos, you said that the note that you provided to Ms. Palma was not a 

complete list. How would she know that that was not a complete list?

A. Well, she knows --

Q. Did you hand her any other documentation?

A. Not in the engine room. I didn't have anything with me.

[Tr. at 79]. Since the Coast Guard did not permit Ms. Gregoratos to complete her answer or pose 

a similar question to Respondent, I cannot find that Respondent should or did know the note was 

not an exhaustive list of the actions she was required to take.

A summary of the interview LT Herring, the Coast Guard Investigating Officer, 

conducted with Ms. Gregoratos during the course of the investigation is in evidence. [CG-13]. 

The summary reflects that Ms. Gregoratos told him, “I was very clear with Jessica about doing a 

drug test. I told her multiple times that she had to do it (the drug test) in Juneau or Ketchikan that 

day.” [Id. at 2]. Ms. Gregoratos also made notes summarizing her interview, which are in 

evidence. [R-C]. 

Ms. Gregoratos also wrote an email to LT Herring dated October 17, 2018, in which she 

stated that the Third Engineer, Brandy Richter, may have heard her tell Respondent about the 

drug test while in the engine room. [CG-11]. Ms. Gregoratos wrote that she had shown 

Respondent each piece of paper in the manila envelope and explained what they were while they 
17

were seated in the ADA van. Further, when Respondent asked if she could take the drug test in 

Ketchikan, Ms. Gregoratos told her “it would be better if she had it in Juneau, that is was still 

before 0600 and that she had enough time” and gave her explicit directions to the Juneau testing 

facility. [Id.]

In rebuttal, Respondent entered into evidence an unsworn statement from Ms. Richter, 

the Third Engineer, who said she was present and actively involved in managing the situation in 

the engine room. Ms. Richter wrote, “I witnessed the Purser, Katherine give Jessica an alcohol 

test right after the incident. However, while passing her the packet of what she needed to 

complete once she got off the vessel, there was no mention of a drug test that needed to be 

performed within a specific time constraint or at all for that matter.” [R-B].

There is no dispute that Ms. Gregoratos included the drug testing referral form in the 

manila envelope, but Respondent explains she did not realize the form was there until she found 

it at her first medical appointment a week later. The referral form AMHS was using at the time 

did not require the mariner to acknowledge receipt. However, Respondent presented evidence 

that AMHS has now added an acknowledgment line for the employee to sign and date, showing 

the employee actually received and was aware of the referral. [R-J; Tr. at 119; 143-44]. 

Respondent stated she pursued this change because she felt what happened to her was unfair and 

did not want it to happen to others in the future, and Mr. Karvales agreed this case was a major 

factor in the redesign of the form. [Tr. at 143-44]. The redesign also aligns with the Coast 

Guard’s Marine Safety Advisory entitled Random Chemical Testing Requirements for Marine 

Employers, Sponsoring Organizations and Mariners (June 29, 2016), which strongly 

recommends that employers obtain some form of written acknowledgment when ordering a drug 

test.2

 

2 A written signature, email, or text message all appear to suffice under the recommendations.
18

In assessing Ms. Gregoratos’s demeanor at the hearing, I found her somewhat evasive 

and hesitant to make any definite statements about what happened on the day of the incident. Her 

testimony conflicted in significant ways with the notes and interview summary. Specifically, 

under oath Ms. Gregoratos testified she could not remember whether she told Respondent she 

was required to take a drug test at the time she administered the alcohol test, while they were still 

in the engine room. [Tr. at 61]. Ms. Gregoratos also testified that when she found Respondent in 

the van and gave her the manila envelope, she pulled the forms out partway and said the name of 

each but didn’t review them in depth because there wasn’t enough time, partially contradicting 

her email to LT Herring. [Tr. at 63; Ex. CG-11]. She recalled having a short conversation about 

drug testing in which she recommended Respondent go in Juneau because she had time before 

her flight, but said Respondent could go in Ketchikan if she preferred. [Id.] She explicitly stated 

they did not discuss the testing timeline, contradicting her written notes and statements saying 

she told her to go that day. [Tr. at 80]. 

Ms. Gregoratos believed her notes, which she made closer to the date of Respondent’s 

injury, were probably a better indicator of what happened than her testimony. It is plausible that 

a person’s memory would fade as time passes, though I note the hearing took place only seven 

months after the incident. Nevertheless, I find it appropriate to give greater weight to testimony 

given under oath than to unsworn statements.

Finally, while Ms. Gregoratos does not appear to have any personal interest in seeing 

Respondent sanctioned as part of this proceeding, she remains an employee of AMHS and is 

subject to the company’s policies. She testified that the company has a policy of ordering drug 

testing for all employees leaving the ship due to injury, and thus has an interest in showing that 

her own actions that day did not go against company policy.

Respondent, on the other hand, clearly has a vested interest in the outcome of the 

proceedings, as they affect her livelihood. Nevertheless, on the balance, I found her to be a more 
19

credible witness than Ms. Gregoratos. Respondent’s demeanor at the hearing was 

straightforward, and her version of events was internally consistent throughout the proceeding. In 

her opening statement, Respondent said her recollection of the conversation with Ms. Gregoratos 

was that “Juneau versus Ketchikan was in reference to the orthopedic facility in Ketchikan rather 

than Juneau and not the drug testing since it’s easier obviously and makes more sense to 

establish care where I live.” [Tr. at 103]. Respondent later testified that she was not aware of the 

need to take a drug test until she found the referral form in the manila envelope a week later. 

While her testimony contradicts Ms. Gregoratos’s, it is not inherently implausible. 

I have also considered the fact that Respondent took a urinalysis drug test on September 

26, 2018, which supports her testimony that she tested immediately upon finding the form in the 

manila envelope. [R-D at 8]. I have also considered the hair test she took on October 2, 2018, 

which was negative for drug use over a longer time period than the urinalysis test would have 

covered.3[R-E]. I find it unlikely Respondent would have submitted on her own initiative and at 

her own expense to hair follicle testing if she had knowingly refused to take a timely urinalysis 

test. 

I find Ms. Gregoratos’s testimony does not credibly establish whether she gave 

Respondent a direct order at either the engine room or ADA van to take the test at the Tongass 

facility in Juneau within a certain time frame. In particular, I note the portion of Ms. 

Gregoratos’s testimony where she said, “that's something that I assume everybody knows . . . 

that people know after an accident they're going to go take a drug test. I assume people know 

that. Whether they do or not, I don't know. But that's what I assume, that as a crew member you 

would already know that. But I don't assume that you know the timeline.” [Tr. at 78]. Based on 

these statements, Ms. Gregoratos may not have realized the specific details she needed to give 
20

Respondent in order to effectively direct a Part 16 drug test. However, even though Ms. 

Gregoratos said that she doesn’t assume crewmembers know the timeline for testing, she later 

testified she and Respondent “did not discuss a timeline, per se” on September 19, 2018. [Tr. at 

80].

The note Ms. Gregoratos provided Respondent along with the manila envelope was also a 

likely source of confusion, since it specifically enumerates tasks for Respondent to do but does 

not mention reporting for drug testing or contacting a Service Agent to schedule a drug test. I 

give the note significant weight, as it is contemporaneous evidence of the topics Respondent and 

Ms. Gregoratos were discussing. While it does not conclusively prove whether Ms. Gregoratos 

discussed drug testing or not, it tends to show she was more focused on other tasks such as 

visiting a doctor and filing a workers’ compensation claim.

I also find Respondent’s argument that she thought they were discussing locations for 

follow-up medical care, not drug testing, to be reasonable—particularly in light of Ms. 

Gregoratos’s testimony that, while Respondent seemed to understand what they were discussing, 

she “was hurt, injured/hurt and everything that goes along with that. You know, as sharp as 

someone can be at that time.” [Tr. at 67]. If Ms. Gregoratos believed Respondent was not “as 

sharp” as she might otherwise be, it was particularly important for her to give a clear and 

unambiguous order.

I have taken into consideration Ms. Gregoratos’s emphatic statements to the company 

and the Coast Guard investigators that she ordered Respondent to test that day in Juneau, which 

directly conflict with her testimony that she told Respondent it was okay to test in Ketchikan and 

did not give a specific timeline, and give greater weight to her testimony under oath at the 

hearing. I believe Ms. Gregoratos intended to direct Respondent to take a drug test, but never 

 

3 Although hair testing is not a permissible method for DOT drug tests, the Coast Guard has recently been willing to 

accept them as other evidence of drug use or non-use. See USCG v. McPherson, ALJ Docket No. 2013-0434; USCG 
21

framed it with “a sufficient degree of specificity and certainty” to effectuate an order. See

JOHNSON at *2. 

3. Respondent Was Not Otherwise on Notice of the Need to Test

The Coast Guard also attempted to show Respondent’s failure to look at the referral form 

sooner was unreasonable because she knew or should have known about the testing requirements 

by virtue of her drug and alcohol training at AMHS. This argument hinges on whether 

Respondent knew she was directly involved in an SMI, as the employee’s independent obligation 

to undergo required chemical testing arises only after the marine employer has determined the 

marine casualty is, or is likely to become, an SMI. Specifically, the responsibility to test shifts to 

the employee to provide a sample “when directed to do so by the marine employer or a law 

enforcement officer.” 46 C.F.R. § 4.06-5(a). However, neither 49 C.F.R. Part 40 nor 46 C.F.R. 

Part 16 establish any duty on the part of a mariner to cure an employer’s flawed notification.

The Coast Guard called Mr. Karvelas to testify about Respondent’s training in AMHS’s 

substance policies, which she received during her orientation after she was hired. [Tr. at 24-36]. 

He believed Respondent was aware of the drug and alcohol policies, including those pertaining 

to serious marine incidents. [Tr. at 34, 39].

Respondent presented rebuttal evidence from Krissel Calibo, who is a patrolman for the 

inland boatman’s union. Ms. Calibo testified that during the new employee orientation, the focus 

is mainly AMHS’s zero tolerance policy and random drug testing requirements. She testified that 

AMHS does not consistently enforce the post-incident testing requirement, as she personally had 

injuries requiring medical treatment beyond first aid in 2010 and again in 2014 or 2015, and was 

not asked to take a drug test either time. [Tr. at 117, 121]. She stated that, in her union capacity, 

she represented several mariners who did not complete drug testing after a serious marine 

 

v. Summer, ALJ Docket No. 2017-0322.
22

incident. [Tr. at 118]. She testified she is frequently approached by AMHS employees who are 

uneducated about the policy and “if it’s that many people, it can’t be everyone that’s – just 

because they haven’t taken the initiative to find out.” [Tr. at 125].

The AMHS drug and alcohol policy clearly states that employees who are required to test 

after an SMI must take an alcohol test within two hours and a drug test within 32 hours of the 

incident. [CG-05]. However, AMHS’s standing orders to pursers are that if crewmembers “are 

injured or hurt and they’re going to be getting off the boat, they’re going to miss time at work, 

then we are to assume they are going to get more than first aid treatment. We’re to assume that’s 

a serious marine incident.” [Tr. at 89]. Ms. Gregoratos testified, “If we make the mistake of not 

referring them when they should have been referred, I understand that's even worse than 

referring them when they shouldn't have been referred.” [Tr. at 91].

This characterization of the employer’s responsibilities does not accord with the 

Commandant’s reasoning in FRANKS:

Ignoring compliance with Part 16’s prerequisites for testing would 

expose mariners to potentially unreasonable government action, 

through employers’ testing practices apparently pursuant to the 

Coast Guard regulatory regime, without any practical recourse. 

Unreasonable drug testing undertaken by employers under the 

umbrella of the Coast Guard regulatory regime also risks judicial 

invalidation of the entire drug testing regime, which would be 

inimical to marine safety, the core interest underlying the regime.

2014 WL 4062506 at *7. The Coast Guard does not require drug testing for all shipboard 

injuries, only those that are, or likely to become, an SMI. See, e.g., Pariseau v. Capt. John Boats,

Inc., No. CIV.A. 09-10624-JGD, 2012 WL 527652, at *13–14 (D. Mass. Feb. 16, 2012); Newill 

v. Campbell Transp. Co., No. 2:12-CV-1344, 2015 WL 222438, at *1 (W.D. Pa. Jan. 14, 2015). 

Even a mariner who is thoroughly familiar with AMHS’s policy would not know the 

testing requirements had been triggered unless AMHS informed them the incident was 

considered an SMI. There is no evidence that Ms. Gregoratos or anyone else in Respondent’s 
23

chain of command told her the incident was being reported as an SMI at any point during the 32-

hour testing period. There is also no evidence that non-officer AMHS crewmembers such as 

Respondent knew it was the company’s policy to treat all instances where a crewmember leaves 

the ship due to injury as SMIs. Respondent argued she was not aware of the term “Serious 

Marine Incident” prior to this proceeding. Thus, even accepting that Respondent received 

training about the 32-hour timeline for drug testing after an SMI, I find no evidence that she did, 

or should have, known this requirement applied to her on the date and time in question.

In any event, the obligation for a mariner to submit to testing under 46 C.F.R. § 4.06-5(a) 

arises only after proper direction from the marine employer or law enforcement. Without 

knowing she was an individual determined to be directly involved in an SMI, Respondent had no 

reason to believe that she was required to take a drug test mandated by 46 C.F.R. Part 16. 

Likewise, AMHS’s written policy predicates the employee’s duty to test on the determination 

that they were directly involved in an SMI. Since the Coast Guard has not proved that anyone 

communicated to Respondent that that her injury was an SMI and had not given her proper 

direction to test, I conclude she was not on notice of any obligation to test. 

IV. ULTIMATE CONCLUSIONS OF LAW

After carefully considering all the evidence in the record, I conclude:

1. Respondent’s injury occurred while she was acting under the authority of her MMC, 

thus I have jurisdiction over this matter.

2. Respondent’s injury was a Serious Marine Incident.

3. AMHS personnel did not give Respondent a clear and timely order to take a postcasualty drug test, thus the Coast Guard failed to meet its burden of showing 

Respondent was properly directed to take a drug test within 32 hours of the 

September 19, 2018, SMI.
24

4. Respondent did not have an independent obligation to submit to a drug test because 

AMHS personnel did not inform her the incident was being considered an SMI and 

did not give her proper direction to test.

Accordingly, I need not reach the issue of whether her failure to appear for testing 

constitutes a refusal under 49 C.F.R. § 40.191(a)(1) and 46 C.F.R. Part 16. I find the Coast 

Guard’s allegation NOT PROVED.

ORDER

Having found the Allegation in the Complaint of Violation of Law or Regulation NOT 

PROVED, this proceeding is dismissed with prejudice in accordance with 46 C.F.R. § 5.567(a).

George J. Jordan

US Coast Guard Administrative Law Judge

Date: 

January 09, 2020