UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

JAY W. BARNETT, 

Respondent 

Docket Number CG S&R 02-0681 

CG Case No. 1694666 

DECISION AND ORDER 

Issued: May 13, 2003 

Issued by: Honorable Archie R. Boggs, Administrative Law Judge 

APPEARANCES: 

MST1 RayS. Robertson 

Investigating Officer 

United States Coast Guard 

Marine Safety Office Mobile 

Bldg. 102, Brookley Complex 

South Broad Street 

Mobile, AL 36615-1390 

For the Coast Guard 

J. Mac Morgan, Esq. 

Post Office Box 24501 

879 Robert E. Lee Boulevard 

New Orleans, LA 70124 

For the Respondent 
I. PRELIMINARY STATEMENT 

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

seeking revocation of Coast Guard License Number 849935, Merchant Mariner's 

Document, and all certificates or documents issued by the Coast Guard to Jay W. Barnett 

(Respondent). This administrative action was brought pursuant to the legal authority 

contained in 46 U.S.C. 7704(c) and its underlying regulations codified at 46 CPR Part 5. 

On October 23,2002, the Coast Guard issued a Complaint charging the 

Respondent with one count of being a user of or addicted to the use of dangerous drugs. 

In support of this Complaint, the Coast Guard alleged that on September 17, 2002, the 

Respondent participated in a random drug test which proved positive for marijuana 

metabolites. On November 7, 2002, MSTl RayS. Robertson, Investigating Officer (IO), 

attempted to initiate settlement options by forwarding a Motion for Approval of 

Settlement Agreement and Entry of Consent Order to the Respondent. This motion was 

not adopted by the Respondent and consequently withdrawn by the IO on January 16, 

2003.1 

On November 8, 2002, the Respondent filed an Answer and Request for Change 

ofVenue. The Respondent denied the jurisdictional and factual allegations contained in 

the Complaint and averred Appeal Decision 2535 (SWEENEY) was arbitrary, capricious, 

and improper rulemaking; thus depriving the Respondent of the ability to raise a statutory 

defense of cure as provided in 46 U.S.C. 7704(c) .. On November 25, 2002, for good 

1 The reason cited and relied upon for withdrawal of the motion by the 10 was the discovery of a prior 

positive drug test. 

2 
cause shown, Respondent's change of venue request was granted. 2 The undersigned 

administrative law judge ordered the hearing location of Daphne Alabama, moved to the 

Marine Safety Office in New Orleans, Louisiana, and scheduled the hearing for January 

29,2003. 

On January 28, 2003 one day before the above-captioned matter was scheduled 

for hearing the Respondent filed a Verified Motion for Disqualification of the 

Administrative Law Judge. When the hearing commenced on January 29,2003, 

Respondent's Counsel, Mr. Mac Morgan, was afforded an opportunity to argue the 

motion. After consideration of the Respondent's arguments and applicable law, 

sufficient reason existed to begin the hearing without further delay and Respondent's 

Motion was denied. 

The hearing was conducted in accordance with the Administrative Procedures Act 

as amended and codified at 5 U.S.C. 551-559, and Coast Guard procedural regulations set 

forth at 33 CFR Part 20. The Investigating Officer, presenting the case on behalf of the 

Coast Guard moved for admission of four exhibits and presented three witnesses. The 

attorney representing the Respondent introduced seven exhibits and one witness. The list 

of witnesses and exhibits is contained in Attachment A. The undersigned ordered posthearing briefs with proposed findings of fact and conclusions of law due on or before 

March 17, 2003. In the alternative, Respondent filed a Second Verified Motion for 

Disqualification of the Administrative Law Judge alleging bias. On March 14, 2003, the 

Coast Guard filed a post-hearing brief and an opposition to Respondent's motion for 

disqualification. An order denying Respondent's motion for disqualification was entered 

2 Respondent requested a change of venue in the interest of justice. Respondent provided that some 

witnesses were located in New Orleans and none of the witnesses were located in Daphne, Louisiana. 

3 
on April4, 2003. Rulings on the Coast Guard's proposed findings of fact are contained 

in Attachment B. 

After careful review of the facts and applicable law in this case, I find that the 

Coast Guard has established by a preponderance of reliable and credible evidence that 

Respondent, Jay W. Barnett, was a user of dangerous drugs in violation of 46 U.S.C. 

7704( c) as evidenced by the positive test for marijuana metabolites following a random 

drug test on or about September 17, 2003.3 

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. 

1. At all relevant times mentioned herein and specifically on or about September 17, 

2002, through January 29, 2003, the captioned Respondent was a holder of a 

United States Coast Guard issued Merchant Mariner's Document and License. 

(Tr. 9-10). 4 

2. On September 17, 2003, Keystone Shipping Company contacted Marine Medical 

Unit and requested a random drug test specimen collection from the Respondent. 

(Tr. 88 and 92). 

Moreover, the ALJ's office is located in New Orleans. 

3 During the pendancy of this case, the United States Coast Guard transferred from the Department of 

Transportation to the Dep~ent of Homeland Security. Pursuant to the Savings Provision ofHR 5005 

§1512 (PL 107-296), pending proceedings are continued notwithstanding the transfer of the Agency. · 4 The citations in this Initial Decision and Order are as follows: Transcript followed by the page number, 

(Tr. __);Agency Exhibit followed by number (Gov't Ex. _j; and Respondent Exhibit followed by a 

letter (Resp Ex. _j. 

4 
3. Tabitha Straughter, a certified medical assistant/drug screen collector and 

employee of Marine Medical Unit, boarded a vessel and positively identified the 

Respondent before collecting the urine specimen. 5 (Tr. 87-90). 

4. Ms. Straughter testified that she follows DOT regulations and verifies the identity 

of all seamen with picture identification. An individual's identity is verified by a 

driver's license or merchant mariner's document before collecting the specimen. 

(Tr. 108-109). 

5. When the testing procedure commenced, the Respondent was instructed to 

remove all items from his pockets and proceed to the restroom to wash his hands. 

Ms. Straughter handed a cup to the Respondent and instructed him to place a 

mark on the cup; this demarcation indicated the amount of urine needed. (Tr. 94). 

6. When the Respondent returned with the urine sample, Ms. Straughter poured the 

urine into two containers held by the Respondent. Ms. Straughter proceeded to 

remove two seals from the bottom of the Chain of Custody form and placed them 

across the top of each bottle. Once the seal was tightly secured and dated, the 

Respondent placed his initials on the seal. (Tr. 94-95; Gov't Ex 3). 

7. Additional information on the seal includes the specimen identification number 

which is also referenced on the Chain of Custody form.· The purpose of the 

specimen identification number is to track a particular specimen with the correct 

donor. (Tr. 95; Gov't Ex 3). 

5 In this case, Ms. Straughter could not remember whether she verified Respondent's identity with his 

driver's license or merchant ~ariner'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." (Tr. 103-107). 

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8. The specimen remained in Ms. Straughter's view prior to being sealed and 

initialed by the Respondent. (Tr. 93) 

9. Following the collection, Ms. Straughter proceeded to complete the Chain of 

Custody form. According to the report, the specimen was collected for random 

drug testing ofTHC, COC, AMP, OPI, or PCP.6 The temperature of 

Respondent's specimen was noted within the acceptable range of90°F and 100° 

F. (Tr. 92; Gov't Ex. 3). 

10. Respondent executed his signature on the Chain of Custody form and certified 

that he had not adulterated the specimen in any manner, the specimen was closed 

with a tamper evident-seal in his presence, and the information provided on the 

Chain of Custody form and label affixed to the specimen bottle was correct. (Tr. 

95-96; Gov't Ex. 3). 

11. Ms. Straughter executed her signature on Step 4 of the Chain of Custody form and 

certified the following, "specimen given to me was by the donor identified in the 

certification agreement on Copy 2 of this form, was collected, labeled, sealed, and 

released to the delivery service noted in accordance with the federal shipping 

requirements." 

12. In the afternoon of September 17,2003, a courier from Quest Diagnostics (Quest) 

shipped the specimen bottle to its laboratory in Atlanta, Georgia, for drug testing. 

(Tr. 96-97; Gov't Ex. 3). 

13. Scientist, Tomeka Hill, received and processed Respondent's urine specimen on 

September 18,2002. (Tr. 40-41; Gov't Ex. 1). Processing the specimen includes 

6 These abbreviations are commonly known as marijuana, cocaine, amphetamines, opiates, and 

phencyclidine. (Tr. 41). See also, 49 CFR 40.85 

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opening the bag, entering the demographics into the computer, and placing the lab 

accession number label on the chain of custody form. (Tr. 49) 

14. Dr. Edward Azary, M.D., laboratory director of Quest, described the testing 

procedures followed by the laboratory upon receipt of a specimen. The initial 

screening identifies the negative and positive classes of five certified drugs: 

marijuana, cocaine, opiates, phencyclidine, ap,d amphetamines. (Tr. 41-42). 

15. Here, the test results performed by Ms. Hill and certified by scientist Ellean White 

proved positive for marijuana metabolite. (Tr. 49; Gov't Ex. I). 

16. When the initial testing yields a positive result, the scientist draws a second 

sample from the original specimen bottle and sends the sample to a gas 

chromatography mass spectrometry (GCMS) confirmation process. The purpose 

of the GCMS confirmation is to verify the positive test result. (Tr. 42). 

17. Dr. Azary explained that a specimen sample might be rejected if the following 

occurs: the seal is not intact, identification does not match the accession number, 

either the name or signature of collector is not on the Chain of Custody form, or 

evidence of tampering exists. (Tr. 42). 

18. Quest produced a final laboratory report which summarized the test results. The 

final report validated a positive result of 83 nanograms per milliliter of marijuana. 

(Tr. 46; Gov't Ex. 2). Dr. Azary testified that Quest followed the Department of 

Transportation workplace protocol for drug and alcohol testing procedures 

established in CPR Part 40. Further, Dr. Azary testified the results were accurate 

and reliable. (Tr.~47-48). 

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19. When a donor tests positive, they are given the opportunity to provide a medical 

explanation for the positive test result. (Tr. 65). In this case, the positive test 

results were forwarded to Dr. Stephen Oppenheim, Medical Review Officer, at 

Greystone Health Sciences (Greystone) on September 19, ·2002. (Tr. 48). 

Greystone provides medical review officer services for the Department of 

Transportation. (Tr. 58). 

20. A second medical review officer, Dr. Thomas Dosumu-Johnson, interviewed the 

Respondent on September 26, 2002. During the interview, the Respondent failed 

to provide a verifiable medical explanation for the positive test. (Tr. 66). Dr. 

Johnson determined after the interview and absent additional evidence, the 

Respondent did not have a verifiable medical explanation for the positive drug 

test. (Tr. 66). 

21. Dr. Johnson and Dr. Oppenheim, verified the positive test results and executed 

their signatures on Step 6 of the Chain of Custody Form. (Tr. 62, 65; Exhibit 3). 

22. Mr. Ellis, President ofGreystone, reported respondent's positive drug test to the 

Coast Guard in a letter dated September 26, 2002. (Tr. 67; Exhibit 4). 

III. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

I. Respondent and the subject matter of the hearing are properly within the 

jurisdiction vested in the United States Coast Guard under 46 U.S.C. 7704(c); 46 

CFR Parts 5 and 16; and 33 CFR Part 20. 

2. At all relevant times, Respondent was the holder ofhis U.S. Coast Guard License 

(No. 849935) and Merchant Mariner's Document. 

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3. On September 17, 2002, Respondent participated in a random drug test which 

·proved positive for marijuana metabolites. 

4. Respondent's positive drug test created the presumption that he is a user of 

dangerous drugs under 46 CFR 16.350(a)(l). 

5. The Respondent failed to rebut the presumption that he is a user of dangerous 

drugs. 

6. The Coast Guard's allegation that the Respondent was a user of or addicted to 

dangerous drugs is PROVED by a preponderance of reliable and credible 

evidence. 

IV. OPINION 

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

safety at sea. See 46 U.S.C. 7701. A mariner's license, certificate of registry, or 

merchant mariner's document is subject to r~vocation upon a showing that the holder of 

such documents has been a user of, or addicted to a dangerous drug. 46 U.S.C. 7704(c). 

See also Appeal Decision 2634 (BARRETTA), 4. "Congress enacted 46 U.S.C. 7704 

with the express purpose of removing those individuals possessing and using drugs from 

service in the United States merchant marine." BARRETTA at 4. (Citing House Report 

No. 338, 98th Cong., 1st Sess. 177 (1983)). Under 46 CFR 5.19, the Commandant 

delegated to the Administrative Law Judges, the authority to suspend or revoke a license 

or certificate in a hearing for a violation arising under 46 U.S.C. 7704. 

A marine employ,.er is responsible for establishing a chemical drug testing 

program in accordance with 49 CFR Part 40. Coast Guard chemical drug testing 

9 
regulations authorize marine employers to conduct pre-employment, periodic, random, 

serious marine incident, and reasonable cause drug testing. 46 CPR Part 16, Subpart B. 

If an employee fails the· chemical drug test by testing positive for dangerous drugs, the 

individual is presumed to be a user of dangerous drugs. 46 CPR 16.20l(b). See also 

Appeal Decision 2584 (SHAKESPEARE), 2. The employer is required to remove the 

employee from duties that directly affect safe operation of the vessel and must report the 

positive drugs test results to the nearest Coast Guard Officer in Charge, Marine 

Inspection. 46 CPR 16.201(c). 

A. Prima Facie Case of Use of a Dangerous Drug 

The Coast Guard must establish a prima facie case to prove the allegation of use 

of a dangerous drug. SHAKESPEARE, at 2. First, the Coast Guard must demonstrate 

that the respondent was tested for a dangerous drug. Second, the Coast Guard must show 

the test was conducted in accordance with 46 CPR Part 16. Id. Once both of these 

requirements have been satisfied, the burden shifts to the respondent who must produce 

persuasive evidence to rebut the positive drug test. I d. If the respondent fails to rebut the 

evidence, the administrative law judge may find the charges proved based upon the 

presumption alone. Id. See also Appeal Decision 2592 (MASON), 4; Appeal Decision 

2603 (HACKSTAFF), 4. 

I find that the Coast Guard did establish a prima facie case and proved the 

Respondent was a user of dangerous drugs in violation of 46 U.S.C. 7704(c). The Coast 

Guard demonstrated that the Respondent was tested for marijuana metabolites; a 

dangerous drug enumerated under 49 CPR 40.85. Further, I find the drug test was 

conducted in accordance with Department of Transportation Guidelines in 49 CPR Part 

10 
40. (Tr. 40-49, 62,65; Gov't Ex. 1, 2, and 3). No evidence was presented to suggest the 

positive test results were compromised in any manner or should not be relied upon. 

In contrast, I do not find that the Respondent carried his burden to rebut the 

positive drug test. The Respondent was interviewed by the MRO after the positive drug 

test and did not provide a verifiable medical explanation for the positive test results for 

dangerous drugs. (Tr. 66). Moreover, the Respondent has not challenged or attempted to 

explain the positive test results for marijuana metabolites. I find that the Coast Guard has 

proved by substantial, reliable and probative evidence that the charge of use of or 

addiction to the use of dangerous drugs proved. Appeal Decision 2603 (HACTSTAFF), 

3-4. 

B. Proof of Cure as Required Under Sweeney 

Use of a dangerous drug h~s been proved, therefore an order of revocation of 

Respondent's license and merchant mariner's document issued by the Coast Guard is 

required under 46 U.S.C. 7704(c) and Appeal Decision 2535 (SWEENEY) until cure is 

pro':'en. SWEENEY defined "cure" as a two step process: 

1. The respondent must have successfully completed a bona fide drug 

abuse rehabilitation program designed to eliminate physical and 

psychological dependence. 

2. The respondent must have successfully demonstrated a complete nonassociation with drugs for a minimum period of one year following 

successful completion of the rehabilitation program. 

SWEENEY, 4. The Respondent bears the burden of establishing cure. Appeal Decision 

2526 (WILCOX), 2. 

Finally, a MRO must verify that the mariner is drug-free, the risk of subsequent 

drug use is sufficiently low to justify his return to work, and the mariner must agree to 

11 
unannounced testing. 46 CFR 16.201(f). A Respondent may request a continuance to the 

suspension and revocation hearing to demonstrate substantial involvement in the cure 

process by proof of enrollment in an acceptable rehabilitation program. SWEENEY, 5. 

Here, the Respondent argued that the National Transportation Safety Board 

(NTSB) reversed the definition of cure established in SWEENEY and moved for a 

continuance of six months so he can complete his cure program. (Tr. 116-119, 152-

154).7 The Respondent desires this ALJ to adopt the definition of"cure" from a clinical 

substance abuse diagnosis. (Tr. 119). 

The Respondent presented Kurt Schenker, a certified drug and alcohol counselor, 

as an expert witness. (Tr. 130). Mr. Schenker recommended that the Respondent attend 

an outpatient evening program, six months of after·care, and random drug testing. (Tr. 

133-134). On October 11,2001, Mr. Schenker evaluated and performed a Substance 

Abuse Subtle Screening Inventory (SASSI) on the Respondent. (Tr. 130-131). Mr. 

Schenker concluded that the Respondent had a low probability of having a substance 

abuse problem. (Tr. 132). Mr. Schenker concluded that the Respondent's participation 

in Alcoholics Anonymous meetings coupled with his earlier SASSI assessment, 

demonstrated that the Respondent has started the "cure" process. (Tr. 134). 

Despite Respondent's passionate argument that SWEENEY was reversed by the 

NTSB therefore the cure process should be ordered to six months following the 

successful completion of a drug rehabilitation program, opposed to one year nonassociation with drugs, is denied. Review ofNTSB Order No. EM-165 intimated no 

7 Any party may appeal the ALJ' s decision to the Commandant of the Coast Guard. See 33 CFR Part 20 

Subpart J- Appeals: see also infra Attachment C. The National Transportation Safety Board (NTSB) 

reviews decisions of the Commandant, U.S. Coast Guard, which suspend or revoke mariner licenses, 

certificates or other documents issued by the Coast Guard. 46 CPR PartS- Subpart J. 

12 
view on the validity of the Vice Commandant's proposed definition of cure under 46 

U.S.C. 7704(c). Commandant v. Sweeney, 2 NTSB 5744 (Order ME-152, 1992), 5. The 

NTSB did not review or consider Commandant's decision regarding the definition of cure 

because the parties did not litigate the meaning of the statute. Id. The NTSB did not 

reverse SWEENEY or the definition of cure; it merely offered no view on its definition. 

The definition of cure established in SWEENEY was followed and upheld on 

March 6, 2003, in Appeal Decision 2638 (PASQUARELLA). The Commandant held 

that the one-year non-association with drugs was a mandatory requirement. Id. at 8. 

Thus, an order mandating less than one-year non-association with drugs following the 

successful completion of a drug rehabilitation program as the Respondent proposes 

would not only be improper, it would be contrary to established authority and precedent. 

V. SANCTION 

Once the Coast Guard has proved a mariner used or was an addict of dangerous 

drugs, his license or document must be revoked unless cure is proven. SWEENEY, at 3. 

Absent evidence of cure, an ALJ must revoke Respondent's license and document. 

Appeal Decision 2583 (WRIGHT), 4; 46 CFR 5.569(d). In contrast, when Respondent 

demonstrates "substantial involvement in the cure process by proof of enrollment in an 

accepted [drug] rehabilitation program," an ALJ may stay the revocation and continue the 

suspension and revocation hearing. Id. at 4-5. (emphasis added). See also Review 

Decision 18 (CLAY), 1; Appeal Decision 2526 (WILCOX), 3 (ALJ has discretion to 

grant or deny a continuance). During the continuance period, the Coast Guard retains 

13 
respondent's license and/or document because the mariner is deemed to be a threat to 

public safety. (PASQUARELLA), 5-6. 

However, Coast Guard law and policy does not favor giving a Respondent with a 

prior record of drug use two opportunities to avoid an order of revocation. Title 46 CFR 

5.201(b)(4}prohibits the voluntary deposit of a mariner's documents to prove cure when 

a respondent has a prior record of drug use: 

(b) Where the mental or physical incompetence of a holder of a license, 

certificate, or document is caused by use of or addition to dangerous 

drugs, a voluntary deposit will only be accepted contingent on the. 

following circumstances: 

*** 

(4) The holder has not voluntarily deposited or surrendered a 

license, certificate, or document, or had a license, certificate, or 

document revoked for a drug related offense on a prior occasion. 

Accordingly, consideration of Respondent's prior record of drug use in determining a 

sanction is appropriate. See 46 CFR 5.569(d) (repeat offenders ordinarily receive a 

greater order); Appeal Decision 2219 (BUFORD), 3 (proper for Administrative Law 

Judge to consider mariner's prior record after charges were proved). Further, an 

"overriding interest in assuring that merchant vessel personnel performing duties which 

directly affect the safety of a vessel's navigation or operations do so free from [dangerous 

drugs]." See Programs for Chemical Drug and Alcohol Testing of Commercial Vessel 

Personnel, 53 FR 47064, 47065 (Nov. 21, 1988) (to be codified at 46 CFR Parts 4, 5, and 

16); see also Appeal Decision 2633 (MERRILL), 6. 

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

n 

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 

14 
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 (AA) meeting is considered a "step" in the cure 

process, (Tr. 134), is rejected. 

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). 

SWEENEY, 4. AA on the other hand is a support group for men and women seeking to 

maintain sobriety from alcohol. See generally A.A. at a Glance, http://www.alcoholics-

. anonymous.org/default/en about aa.cfm?pageid=l (last visited May 1, 2003). AA does 

not keep membership records or case histories, make medical or psychiatric prognosis, or 

provide letters of reference to agencies or employers. Id. Therefore, AA is not a bona 

fide drug abuse rehabilitation program contemplated by SWEENEY. 

VI. ORDER 

IT IS HEREBY ORDERED, that United States Coast Guard Licenses No. 

849935 and Merchant Mariners' Document and all certificates of service issued by the 

Coast Guard to Jay W. Barnett, are hereby REVOKED, and shall be immediately 

surrendered to the United,,States Coast Guard, Marine Safety Office, 1615 Poydras Street, 

Room 737, New Orleans, Louisiana. 

15 
PLEASE BE ADVISED THAT THE SERVICE OF THIS decision on 

Respondent's counsel will serve as notice to the Respondent ofhis right to appeal. The 

rules and procedures governing administrative appeals are set forth in 33 CPR 20.1001-

20.1003. Attachment C. 

Dated this _j_J_(d_ay of May, 2003 

New Orleans, Louisiana 

AROcrJ.JJ• so~Gs 1!6~ Administrative Law Judge 

U.S. Coast Guard 

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