UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_______________________________

UNITED STATES COAST GUARD,

Complainant

v.

JUSTIN DAVID JOHNSON,

Respondent

_______________________

Docket Number 2012-0469

Enforcement Activity No. 4470513

DECISION & ORDER

Date Issued: July 11, 2014

Issued By: Honorable Bruce Tucker Smith

Administrative Law Judge

Appearances:

For the Complainant

LT Zachary Wyatte

CWO4 Quinn Quaglino

For the Respondent

Justin David Johnson, pro se
I. PRELIMINARY STATEMENT

On October 23, 2012, the United States Coast Guard (Coast Guard) filed a Complaint 

against Respondent Justin David Johnson (Respondent) seeking revocation of Respondent’s 

Coast Guard-issued Merchant Mariner’s License (MML or credential) alleging use of, or 

addiction to the use of, dangerous drugs under 46 USC §7704(c) and 46 CFR §5.35. More 

particularly, the Complaint alleged that Respondent submitted to a random drug test and 

provided a urine sample that subsequently tested positive for marijuana metabolites, in violation 

of an extant Settlement Agreement between the Coast Guard and the Respondent. 

On October 29, 2012, a Coast Guard Administrative Law Judge entered a Consent Order 

approving a Settlement Agreement between the Respondent and the Coast Guard, ostensibly 

resolving the matters contained in the Coast Guard’s original Complaint. Paragraph 6 of the 

Settlement Agreement provided that Respondent must not, inter alia, “fail a [drug] test.” (CG Ex. 

3).1

On August 13, 2013, the Coast Guard filed a Notice of Failure to Complete Settlement 

Agreement, alleging that Respondent had tested positive for drugs. The Coast Guard contends 

that Respondent submitted urine specimen for chemical testing on July 8, 2013 and that, 

thereafter, that sample tested positive for Tetrahydrocannabinol (THC), the psycho-active 

ingredient in marijuana. (Tr. Vol. I at 16; CG Ex. 10).

On August 19, 2013, The Respondent contested the Notice and indicated his desire for a 

due-process hearing wherein the Coast Guard was obligated to prove he had, in fact, breached 

the Settlement Agreement by virtue of the failed drug test. 

 

1 Citations referencing the transcript are as follows: Transcript followed by the volume number and page number 

(Tr. at __ ). Citations referring to Agency Exhibits are as follows: Investigating Officer followed by the exhibit 

number (Investigating Officer Exhibit 1, etc.); Respondent’s Exhibits are as follows: Respondent followed by the 

exhibit letter (Resp. Ex. A, etc.). Attachment A sets forth the parties’ witnesses and exhibits.
On January 7, 2014, the hearing of this matter commenced in the ALJ Courtroom, Hale 

Boggs Federal Building, New Orleans, Louisiana LT Zachary Wyatte and CWO4 Quinn 

Quaglino represented the Coast Guard; Respondent appeared pro se. 

The hearing was conducted in four sessions: January 7, 2014; March 19, 20142; May 14, 

20143and on June 16, 2014.

Respondent testified on his own behalf and did not call additional witnesses. Respondent 

offered seven exhibits into evidence all of which were admitted. 

After all of the evidentiary hearings were concluded, both parties rested their respective 

cases and the court commenced its deliberation. 4

II. FINDINGS OF FACT

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

evidence, testimony of witnesses and the entire record taken as a whole: 

1. On October 29, 2012, a Coast Guard Administrative Law Judge 

entered a Consent Order approving a Settlement Agreement 

between the Respondent and the Coast Guard, ostensibly resolving 

the matters contained in the Coast Guard’s original Complaint filed 

against Respondent for illegal drug use. Paragraph 6 of the 

Settlement Agreement provided that Respondent must not, inter 

alia, “fail a [drug] test.”

2. On July 8, 2013 the Respondent Justin David Johnson presented 

himself to a specimen collection facility known as “MEA Drug 

Testing” in Mississippi where he provided a urine specimen for 

 

2

 The telephonic testimony of Dr. Franz A. Michel was interrupted by a failure of the telephone/speaker 

system in the administrative courtroom. Immediate – and even repeated, subsequent – efforts to fix the 

telephone system were to no avail. Thus a two-month continuance followed until the telephone system 

could be repaired.

3 Respondent failed to appear timely at the May 14, 2014 hearing, where the testimony of Dr. Franz A. 

Michel was continued. Respondent subsequently petitioned the court to keep the record open and to allow 

him to present his defense-in-chief. In an abundance of caution for the due-process interests of the pro se

litigant, the court granted Respondent’s request.

4

The court acknowledges and thanks student-legal externs Whitney Jansta and Joshua Hall, of the 

Norman Adrian Wiggins School of Law, Campbell University, Raleigh, North Carolina, for their research 

contributions in this case.
testing to Jim Warrick, a properly certified urine specimen 

collection technician. (Tr. Vol. I at 30 – 40; CG Ex. 6, 7). 

3. On July 8, 2013, Respondent Justin David Johnson completed 

the appropriate federal custody and control forms bearing a 

discreet and unique specimen identification number, 502120007, 

and thereafter provided a sufficient quantity of urine for chemical 

testing. (Tr. Vol. I at 45 – 46; CG. Ex 8).

4. On July 8, 2013, Respondent Justin David Johnson’s discreet 

specimen identification number, matching the same one on the 

federal custody and control form, was affixed to the urine 

specimen provided by the Respondent. (Tr. Vol. I at 47).

5. On July 8, 2013, James Warrick of MEA Drug Testing ensured 

that the Respondent Justin David Johnson’s urine specimen was 

sent to Alere Toxicology services in Gretna, Louisiana for 

analysis. (Tr. Vol. I at 47 – 48; CG Ex. 9, 10). 

6. Respondent Justin David Johnson’s urine specimen bearing 

unique specimen identification number 502120007 – the same 

number on the federal custody and control form signed by the 

Respondent – was received in the Alere laboratory on July 9, 2013. 

(Tr. Vol. I at 66). 

7. Alere Toxicology’s laboratory and its professional services 

comport with all of the requirements set forth in 49 CFR Part 40. 

(Tr. Vol. I at 62).

8. Respondent Justin David Johnson’s urine specimen, bearing 

unique specimen identification number 502120007, was twice 

tested (initially by a screening technique called “immunoassay” 

and secondarily by a technique called “gas chromatography.”) (Tr. 

Vol. I at 67 – 69). Both tests resulted in a “positive” indication for 

the presence of THC in Respondent’s urine. (Tr. Vol. I at 68; CG 

Ex. 10 at 33, 71). 

9. The initial test of Respondent Justin David Johnson’s specimen 

by Alere Toxicology’s laboratory revealed Respondent’s sample 

contained 99 nanograms per milliliter, well above the 50 nanogram 

per milliliter cut-off level prescribed by Department of 

Transportation regulations. (Tr. Vol. I at 70). Likewise, the second 

or confirmatory test revealed Respondent’s urine contained 36 

nanograms per milliliter, again above the Department of 

Transportation level of 15 nanograms per milliliter. (Tr. Vol. I at 

70). 

10. The Department of Transportation cut-off levels were 

established to prevent a “positive” test result from a person who 
had passively inhaled or unknowingly ingested marijuana. (Tr. 

Vol. I at 76 – 77). 

11. After Respondent Justin David Johnson’s urine specimen was 

tested, the positive results of the Respondent’s tests were reported 

to a Medical Review Officer for review and interaction with the 

Respondent. (Tr. Vol. I at 73). 

12. Dr. Frantz Michel is the Department of Transportation 

Certified Medical Review Officer who received and reviewed the 

results of Respondent Justin David Johnson’s drug tests. Dr. 

Michel telephoned Respondent on July 10 2013 to review the 

results of the tests with the Respondent. (Tr. Vol. II at 11 – 13; CG 

Ex. 9, 14, 16).

13. On July 10, 2013, the Medical Review Officer Dr. Frantz 

Michel reviewed the test results of a specimen bearing the unique 

identification number 502120007, the same identification number 

associated with Respondent Justin David Johnson’s urine specimen 

and determined that Respondent’s urine specimen had tested 

positive for the presence of the marijuana metabolite. (Tr. Vol. II at 

14 – 19; CG Ex. 14, 16). 

14. On July 10, 2013, the Medical Review Officer Dr. Frantz 

Michel personally, telephonically reported his interpretation of a 

positive test result to the Respondent Justin David Johnson. 

Respondent denied having used marijuana. (Tr. Vol. II at 17 – 20; 

Vol. III at 12 – 14).

15. On July 11, 2013, Respondent Justin David Johnson 

telephoned the Medical Review Officer Dr. Frantz Michel and 

requested that his second or “B” sample be tested by another 

laboratory. (Tr. Vol. II at 19).

16. On July 22, 2013, Respondent Justin David Johnson’s “B” 

urine specimen, also bearing identification number 502120007, 

was chemically tested at LabCorp, Raritan, New Jersey, and 

confirmed for the presence of the marijuana metabolite. (CG Ex. 

17, 18) 

III. DISCUSSION

The purpose of Coast Guard Suspension and Revocation proceedings is to promote safety 

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

the authority to revoke a mariner’s license, certificate or document for violations arising under 
46 USC §7704. See 46 CFR §5.19(b). Under 46 USC §7704(c), a Coast Guard issued license, 

certificate or document shall be revoked if the holder of that license or certificate has been a user 

of or addicted to dangerous drugs, unless the holder provides satisfactory proof that the holder is 

cured. Id.; Appeal Decisions 2634 (BARETTA) (2002); 2535 (SWEENEY) (1992) (rev’d on 

other grounds); see also Appeal Decision 2546 (SWEENEY) (1992) (reaffirming the definition 

of cure established in Appeal Decision 2535 (SWEENEY)). 

The Coast Guard chemical drug testing laws and regulations require marine employers to 

conduct pre-employment, periodic, random, serious marine incident, and reasonable cause drug 

testing to minimize the use of dangerous drugs by merchant mariners. See 46 CFR Part 16. 

The Coast Guard filed its Notice of Failure to Complete Settlement Agreement because 

Respondent failed to comply with the terms of his Settlement Agreement, specifically, paragraph 

6, which insisted that he not “fail any test.” (CG Ex. 3). Accordingly, the Coast Guard seeks 

revocation of Respondent’s license in accordance with the terms of the Settlement Agreement.

A. Jurisdiction

“The jurisdiction of administrative bodies is dependent upon the validity and the terms of 

the statutes reposing power in them.” Appeal Decision 2620 (COX) (2001) (quoting Appeal 

Decision 2025 (ARMSTRONG) (1975). “Where an Administrative forum acts

without jurisdiction its orders are void.” Appeal Decision 2025 (Armstrong)

(1975). Therefore, establishing jurisdiction is critical to the validity of a proceeding. 

Appeal Decisions 2677 (WALKER) (2008); 2656 (JORDAN) (2006).

In Suspension and Revocation cases wherein use of dangerous drugs has been charged, 

jurisdiction is established by the respondent’s status as a holder of a Coast Guard-issued 

credential. See Appeal Decision (CLIFTON) (1995). Respondent is a holder of a Coast Guardissued credential (Tr. at 147-148), accordingly, jurisdiction is appropriately situated. Moreover, 
jurisdiction in this case is conferred by Respondent’s acquiescence, by virtue of his voluntary 

participation in the Settlement Agreement, the alleged breach of which is the subject of this 

litigation. 

B. Burden and Standard of Proof

1. Generally

Suspension and Revocation proceedings are remedial, not penal in nature and are 

“intended to help maintain the standards of competence and conduct essential to the promotion 

of safety at sea.” 46 CFR §5.5. The Commandant delegated to ALJs the authority to suspend or 

revoke a license, certificate, or merchant mariner’s document for violations arising under 46 

USC §§ 7703 and 7704. See 46 CFR §5.19. In the instant matter, the Coast Guard charged 

Respondent under 46 USC §7704(a) and 46 CFR §5.35 alleging use of, or addiction to the use of, 

dangerous drugs and sought revocation of Respondent’s credential.

As indicated above, Respondent and the Coast Guard entered into a Settlement

Agreement which was subsequently approved by an Administrative Law Judge. (CG Ex. 3, 4). 

The Coast Guard contends Respondent breached that Settlement Agreement by failing a drug 

test. 

It is important to note that determining the weight of the evidence and making credibility 

determinations as to the evidence is within the sole purview of the ALJ. Appeal Decision 2640 

(PASSARO) (2003). Also, the ALJ is vested with broad discretion in resolving inconsistencies 

in the evidence, and findings do not need to be consistent with all of the evidence in the record as 

long as there is sufficient evidence to reasonably justify the findings reached. Appeal Decision 

2639 (HAUCK) (2003). 

In this case, the Coast Guard proved that prior to July 8, 2013, Respondent arranged with 

Ms. Candace Poche, who works as an assistant to a Medical Review Officer at International 
Drug Detection, to take a drug test as per the requirements of his Settlement Agreement. (Tr. 

Vol. I at 30). 

Thereafter, on July 8, 2013 the Respondent presented himself to a specimen collection 

facility known as “MEA Drug Testing” in Mississippi where he provided a urine specimen for 

testing. (Tr. at 30). There, he met Jim Warrick, an appropriately certified specimen collection 

technician. (Tr. Vol. I. at 39 – 40; CG Ex. 6, 7).

After Mr. Warrick and Respondent completed the appropriate federal custody and control 

forms (CG. Ex 8), Respondent provided a sufficient quantity of urine for chemical testing. (Tr. 

Vol. I at 45 – 46). Mr. Warrick ensured that a discreet specimen identification number, matching 

the same one on the federal custody and control form, was affixed to the urine specimen 

provided by the Respondent. (Tr. Vol. I at 47). Thereafter, Mr. Warrick ensured that the urine 

specimen provided by the Respondent was sent to Alere Toxicology services for analysis. (CG 

Ex. 9, 10). 

Dr. David Green is a board-certified clinical chemist and toxicologist at Alere 

Toxicology in Gretna, Louisiana. (Tr. Vol. I at 61). Dr. Green testified that he is responsible for 

all of the laboratory operations at Alere and that his laboratory comports with all of the 

requirements set forth in 49 CFR Part 40. (Tr. Vol. I at 62).

Dr. Greene testified that the urine specimen bearing specimen identification number 

502120007 – the same number on the federal custody and control form signed by the Respondent 

– was received in the Alere laboratory on July 9, 2013. (Tr. Vol. I at 66). Dr. Green further 

testified that the Respondent’s urine specimen was twice tested (initially by a screening 

technique called “immunoassay” and secondarily by at technique called “gas chromatography.”) 

(Tr. Vol. I at 67 – 69). Both tests resulted in a “positive” indication for the presence of THC in 

Respondent’s urine. (Tr. Vol. I at 69; CG Ex. 10 at 33, 71). 
Dr. Green testified that the initial test revealed Respondent’s specimen contained 99 

nanograms per milliliter, well above the 50 nanogram per milliliter cut-off level prescribed by 

Department of Transportation regulations. (Tr. Vol. I at 70). Likewise, Dr. Green testified the 

second test revealed Respondent’s urine contained 36 nanograms per milliliter, again above the 

Department of Transportation level of 15 nanograms per milliliter. (Tr. Vol. I at 70). 

Dr. Green testified that the Department of Transportation cut-off levels were established 

to prevent a “positive” test result from a person who had passively inhaled or unknowingly 

ingested marijuana. (Tr. Vol. I at 76). 

Dr. Green testified that the positive results of the Respondent’s tests were reported to a 

Medical Review Officer for review and interaction with the Respondent. (Tr. Vol. I at 73). 

Dr. Frantz Michel is the Department of Transportation Certified Medical Review Officer 

who received and reviewed the results of Respondent’s drug tests. Dr. Michel telephoned 

Respondent on July 10, 2013,5to review the results of the tests with the Respondent. (Tr. Vol. II 

at 11 – 13; CG Ex. 9, 14, 16). During that telephone conversation, Dr. Michel reported to 

Respondent that Respondent’s urine specimen had tested positive for the presence of the 

marijuana metabolite. (Tr. Vol. II at 12; CG Ex. 14, 16). Despite this revelation, Respondent 

denied having used marijuana. (Tr. Vol. II at 18; Vol. III at 12 – 14).

Respondent correctly points to some confusion created by the “paper trail” generated by 

the Medical Review Officer(s) and his staff in this case. In particular, Coast Guard Exhibit 15 

purports to be a chronological record of Dr. Michel’s review of Respondent’s test results and his 

telephone contact with the Respondent. The court notes, however, that CG Ex. 15 wasn’t signed 

by Dr. Michel. Rather, the document was signed by another physician, a Dr. Dash. This 

 

5 The court notes the peculiar dispatch with which Respondent’s sample was tested and the results reported 

by the MRO. By the court’s calculation, the entire sample-testing-reporting process took no more than three 

or four days. This is an unusually rapid processing of a subject’s sample. Without further information 

regarding this particular test, the court can draw no other conclusion apart from curiosity.
confusion suggests, but does not establish, that Dr. Michel may, in fact, not have been the 

physician who contacted the Respondent. However, during his second day of testimony, on May 

14, 2014, Dr. Michel assured the court that he had, in fact, spoken personally with the 

Respondent on July 10, 2013. (Tr. Vol. III at 12 – 14). 

The next day, on July 11, 2013, Respondent telephoned Medical Review Officer Michel 

and requested that his second or “B” sample be tested by another laboratory. (Tr. Vol. II at 19). 

Thereafter, on July 22, 2013, Respondent’s “B” urine specimen, also bearing identification 

number 502120007, was chemically tested at LabCorp, Raritan, New Jersey, and confirmed for 

the presence of the marijuana metabolite. (CG Ex. 17, 18).

In his defense, Respondent denies having intentionally ingested marijuana in violation of 

the terms of his Settlement Agreement. He postulates the theory that he may have inhaled, 

passively, marijuana smoke at a bar. (Tr. Vol. IV at 32). In furtherance of his theory, 

Respondent offered his Exhibits E, F, and G which contend that the potency of marijuana has 

increased markedly since the 1980’s and ‘90’s. Respondent contends that the Department of 

Transportation cut-off levels for a “positive” marijuana test have not been raised to compensate 

for the increased potency of marijuana now in circulation and use. (Tr. Vol. IV at 38, et seq.). 

While Respondent’s argument may have some merit (begging the question whether the DOT 

currently maintains an appropriate “positive” cut-off level) his argument is, at present, no more 

than speculation or conjecture. Respondent was unable to establish a scientific foundation that 

his urine sample was adversely affected by his passive inhalation of smoke that was, indeed, 

“high-potency” marijuana. 

Respondent further offers the results of a drug test he voluntarily submitted on July 12, 

2013 – two days after he was notified by the MRO of his failed test, and four days after he 

submitted the sample which resulted in the positive findings. (Tr. Vol. IV at 31; Resp. Ex. A). 

Respondent contends that if the urine sample he provided on July 8, 2013 tested positive for 
marijuana, the results of his July 12, 2013, test should be the same. He argues that his July 12, 

2013, negative test results prove that his July 8, 2013, test results were in error. (Tr. Vol. IV at 31 

– 32). Simply said, the July 12, 201, negative test results do not prove that his July 8, 2013, test 

results were in error. The court notes that marijuana metabolite can, and does, pass from the 

human body fairly rapidly. Hence, a human can have a quantity of the metabolite in his/her body 

sufficient to fail a drug test on one day—but an insufficient amount of the metabolite 24 hours 

later. Moreover, Respondent’s July 12, 2013, test results only report a “negative” finding and do 

not make any reference to any level of marijuana metabolite in Respondent’s body. Such a 

“negative” test result might have revealed the presence of the marijuana metabolite; albeit one of 

an insufficient level for the purposes of the law. The court will not speculate what the negative 

test actually revealed...

 Even though the results of the July 12, 2013, test are intriguing, Respondent could lay 

no appropriate evidentiary foundation for proving the relevance of such test results. (Had he been 

able to do so, the outcome of this litigation might have been different.) Hence, the court cannot 

give probative weight to the results of the July 12, 2013 test. 

Respondent also provided a copy of an Alcoholics Anonymous “sign in” form reflecting 

his attendance at twenty-four such meetings from November 2012 through October 2013. (Resp. 

Ex. B). While the court commends Respondent on his efforts to make positive changes in his 

life, such participation does not constitute a defense to his use of marijuana in violation of the 

terms of his Settlement Agreement.

IV. CONCLUSION

After careful consideration of the testimony and documentary evidence offered at the 

hearing, and of the entire record, the court finds that the Coast Guard met its burden to establish 

that the Respondent entered into a Settlement Agreement following an original Complaint and 

that the Settlement Agreement provided Respondent could not fail a drug test. The Coast Guard 
further met its burden by establishing that: (1) the Respondent was tested for a dangerous drug, 

and that (2) the Respondent tested positive for a dangerous drug, and that (3) the test was 

conducted in accordance with 46 CFR Part 16. Therefore, the Coast Guard PROVED that the 

Respondent breached the terms of his Settlement Agreement.

Thus, the allegations contained in the Coast Guard’s Complaint are PROVED.

WHEREFORE,

VI. ORDER

IT IS HEREBY ORDERED, that Respondent Justin David Johnson breached the terms 

of his Settlement Agreement. Thus, his Coast Guard-issued Merchant Mariner’s Credential is 

hereby REVOKED per the express terms of that Settlement Agreement. 

IT IS SO ORDERED.

__________________________________________________

Hon. Bruce Tucker Smith

US Coast Guard Administrative Law Judge

Date: 

July 11, 2014
VII. ATTACHMENT A: LIST OF WITNESSES & EXHIBITS

Coast Guard Exhibits 

1. 49 CFR Part 40

2. Federal Register, July 2, 2013

3. Settlement Agreement

4. Consent Order

5. Return-to-duty documents

6. Collector’s certification

7. Collection facility certification

8. Custody and Control Form – Collector’s copy

9. Custody and Control Form – Testing facility copy

10. Alere Laboratory report

11. Alere drug test result

12. MRO training certificates

Respondent Exhibits

A. Custody and Control forms

B. AA meeting sign-in sheet

C. “Positive Result” MRO form

D. LabCorp form

E. “High potency” marijuana news article from Internet

F. “Medical Marijuana” news article from Internet

G. “Why Cannabis Is Now So Different from 1970’s Cannabis?” 

ALJ Exhibits

None

Coast Guard’s Witnesses

1. Candace Poche

2. James Warrick

3. Dr. David Green

4. Dr. Frantz Michel

Respondent’s Witnesses

1. Justin Johnson