UNITED STATES OF AMERICA

DEPARTMENT OF IIOMELAND SECURITY

UNITED STATES COAST GUARD

I.TNITED STATES OF AMERICA

UNITED STATES COAST GUARD

DECISION OF THE

VICE COMMANDANT

v.

ON APPEAL

NO. 2724

MERCHANT MARINER CREDENTIAL

Tccrred fn. TErFôTlf.ìRE BRUCE E'TllrNsTPrìl\r

APPEARANCES

For the Govemment:

Andrew J. Norris, Esq.

Eric A. Bauer

Respondent:

Theodore Bruce Edenstrom ) pro se

Administrative Law Judge:

George J. Jordan

This appeal is taken in accordance with 46 U.S.C. Chapter 77,46 CFR Part 5 and 33 CFR

Part20.

On March 20,2018, an Administrative Law Judge (ALJ) of the United States Coast

Guard issued a Decision and Order (D&O) finding proved the Coast Guard's Complaint against

the Merchant Mariner Credential of Respondent Theodore Bruce Edenstrom and ordering the

revocation of Respondent's credential.

The Coast Guard complaint charged Respondent with two allegations of misconduct.

First, the complaint alleged that Respondent failed to disclose a number of medical conditions on
EDENSTROM No. av24

the Form CG-719K he submitted to the Coast Guard, in support of an application for renewal of

his credential. Second, the complaint alleged that Respondent committed misconduct by failing

to appear for a mandated random drug test on October 8, 2015.

Respondent appeals.

FACTS

On April 2I,2015, Respondent submitted Form CG-719K, Merchant Mariner Medical

Evaluation Report, dated March 27,2015, to the National Maritime Center (NMC), in support of

his application for renewal of his merchant mariner credential. [CG Exs. 6 &,7; D&O at 3.]

Section I of the Form CG-719Kt requires the applicant mariner to attest, subject to prosecution

under 18 U.S.C. $ 1001, that the information provided is truthful and complete, without knowing

omission. Respondent signed, and so attested. [CG Ex. 7 at3.]

Section IV of the Form CG-719K, Certification of Medical Conditions,lists 88 medical

conditions. As the form states at the top of Section IV, it "must be completed by applicant, and

reviewed by veriffing medical practitioner." The instructions to that section provide,

"Applicants must report their relevant medical conditions to the best of their knowledge, and the

verifying medical practitioner must verifu the medical conditions, using the table below."

Respondent's March 2015 Form CG-719K indicates that Respondent did not report any

diagnosis or treatment of any of the 88 listed medical conditions. ICG Ex. 7 at 5; D&O at 3.]

The NMC issued Respondent's renewed credential, which is the credential at issue in this

proceeding, on May 8,2015. [CG Ex. l; D&O at 3.]

On September 30, 2015, Respondent was employed by Brusco Tug & Barge (Brusco) as

the Master of the M/V HENRY BRUSCO. [D&O at a.]

I Form CG-719K has since been revised, in April 2017.

2
EDENSTROM NO. wT' p^ Ã-

'When 

new employees are hired by Brusco, they are required to read and initial the

company's drug and alcohol policy, which is set out in a section of the company's employee

handbook. [D&O at 4.] Pursuant to this policy, Brusco employees are expected to report for

drug testing within 24 hours of notification. lld.l Respondent read and initialed the Brusco drug

and alcohol policy upon hire. [/d.]

To comply with the requirements for random drug testing of mariners, as laid out at

46 CFR $ 16.230, Brusco utilizes whole-boat testing (where a vessel's entire crew is selected at

random, rather than selection by individual mariner). [D&O at 4.] American Maritime Safety

(AMS) administers Brusco's random drug testing program. [1d.] AMS uses RandomVy'are

software to select vessels for whole-boat drug testing. [1d.]

On September 22,2015, the AMS vessel operations manager sent a confidential email to

Brusco's compliance manager and Designated Employer Representative (DER), notiffing him

that the MA/ HENRY BRUSCO had been selected for random testing. [D&O at 4.] Upon

receipt of such a notice, Brusco has 45 days to test the entire crew of the selected vessel and

report back to AMS. fld. at 5.1 Once a selected vessel is close enough to a collection facility to

complete the test, the DER notifies the captain of the drug testing. lld.l

Late in the evening on September 30, 2015, the HENRY BRUSCO was coming into her

home port in Cathlamet, V/ashington. [D&O at 5.] Brusco's DER asked the company's

Cathlamet port captain to notiff Respondent that his vessel had been selected for drug testing

and to request him to keep the crew on board the vessel until the following moming when the

testing facility opened. [1d.]

On September 30, 2015, the port captain notified Respondent, by text message, that he

was to keep the crew onboard overnight, in order to complete a random drug test in the moming.

[D&O at 5.] The port captain further directed Respondent not to tell the crew why they were

being kept onboard. lld.l Respondent obeyed the order not to decrew the vessel. [1d.]

3
EDENSTROM No' 2724

On the moming of October 1,2015, Respondent and the port captain agreed that

Respondent would send the crew to the Brusco office, to receive further instruction regarding the

drug screen. [D&O at 5.]

Respondent himself visited the Brusco office on October 1,2015, where he met with the

DER and discussed health insurance paperwork. [D&O at 5.] During this meeting, the DER did

not mention anything to Respondent about the drug test, and Respondent made no inquiries

about the same. [1d.] Respondent did not report to a drug testing facility on October 1,2015.

trd.l

Respondent's hitch on the HENRY BRUSCO ended on October I,2015. [D&O at4,6.f

As was the eompany's standard practice, Respondent remained in Brusco's ernployee pool, with

the expectation that he would be assigned to a Brusco vessel within 45 days. [Id. at 6.] At some

point after October 1,2015, Respondent applied for and received V/ashington State

unemployment benefits . [Id.l

On October 8,2015, Brusco's DER became aware that Respondent had not completed the

October I random drug screen, ordered for the entire crew of the HENRY BRUSCO. [D&O at

6.] That day, the DER contacted Respondent to ask why he had not reported for a drug test on

October 1, and inform him that he would need to take a drug screen immediately. fld.l The

DER told Respondent that, if Respondent failed to complete a drug screen, Brusco would notifu

the Coast Gnañ. lld.l

Respondent reported to the drug testing facility in the afternoon of October 8;2015.

[D&O at 6.] Respondent's initial urine sample, provided at about 2:30 pm, was more than 100"

Fahrenheit, which is outside the acceptable temperature range for a urine sample. lld.; a9 CFR

$ 40.65(b)] The collector informed Respondent that he was obliged to provide a second urine

sample, this time under direct observation. [D&O at 6.] Accompanied by a male observer,

Respondent was unable to provide a second sample. [Id.l The collector provided Respondent

with ten ounces of water, and informed him that he was obligated to remain at the testing facility

4
EDENSTROM No. 27 24

until he could provide a second sample. lld. at 7.] At approximately 2:37 pm, Respondent left

the facility, not having provided a second sample. [/d.]

Respondent proceeded to the Brusco office, where he informed the DER that he had left

the testing facility without submitting a sample. [Tr. at 147-48.] Upon receiving confirmation of

this refusal from the testing facility, Brusco terminated Respondent's employment. [Id. at 148.]

On Novernber 23,2015, the Coast Guard filed a Complaint against Respondent's

Merchant Mariner Credential making two allegations of misconduct for refusal to submit to

mandated drug testing----one for the October 1 drug testing date and one for October 8. This

Complaint was assigned docket number 2015-0352.

On March 7,2016, Respondent failed to appear at a scheduled prehearing conference for

2015-0352, and the Coast Guard moved for default. ICG Ex. 3.] Respondent filed, on March

20,2016, a Motion for Good Cause Shown, explaining that he had missed the scheduled

conference as a result of treatment for an ongoing medical condition. ICG Ex. 4.] The ALJ

denied the government motion for default because Respondent had provided good cause for

missing the conference. [CG Ex.2 at2.]

The hearing in the 2015-0352 matter convened on June 28,2016. ICG Ex. 2 (January 12,

2017 D&O) at 3.1 At hearing, the Coast Guard withdrew its allegation regarding the October 8

test, and the ALJ dismissed that misconduct charge without prejudice. ICG Ex. 2 (January 12,

2017 D&O) at2.l The ALJ subsequently issued his D&O on January 12,2017, finding the

remaining misconduct charge, for refusal of an ordered drug test on October 1, NOT PROVED,

because Brusco did not properly notify Respondent of his obligation to test. fld.l The Coast

Guard appealed that ruling, an appeal that was later withdrawn.

During an internal post-hearing review of the first complaint against Respondent, the

Coast Guard investigating offlrcer (IO) noted the medical information contained in Respondent's

March 20,2016, Motion for Good Cause. [D&O at 3.] The IO believed that the condition and

treatment described by Respondent were possibly disqualiffing for sea service. The IO obtained

5
EDENSTROM NO. 27 24

Respondent's most recent merchant mariner credential application, which included the March

27,2015, Form CG-719K described above. [Id.l The IO then subpoenaed Respondent's medical

records, which revealed that Respondent had, prior to March 2015, been diagnosed with and

treated for several of the medical conditions marked "No" at Section IV of the March 2015

sworn Form CG-719K. [Id. af 4.]

On May 17,2017, the Coast Guard filed a new complaint against Respondent's

credential, making two independent allegations of misconduct, first for violating 18 U.S.C.

$ 1001 by failing to disclose known medical conditions on the Form CG-719K, and second for

refusing a government-mandated drug test on October 8, 2015.

PROCEDURAL HISTORY

Respondent filed an answer, styled as a "Response and Notice of Special Appearance,"

denying all of the Complaint's jurisdictional and factual allegations. On July 5,2017,

Respondent filed a motion to dismiss, arguing that the complaint was invalid for lack of

jurisdiction and failure to state a cause of action. Respondent's motion also asked the ALJ to

quash the Coast Guard subpoena of Respondent's medical records, as an oveffeach of the Coast

Guard's statutory investigatory authority.2

The Coast Guard filed a motion for a partial summary decision, arguing that the D&O of

January 12,2017, had conclusively determined that Respondent was properly selected for a

random drug test on Septemb er 22,2015. The Coast Guard asked the ALJ to consider this

determination res judicata and binding in tliis action against Respondent.

The ALJ denied both of these motions, by separate orders of August 8,2017. The ALJ

denied the Coast Guard motion because the January 2017 D&O was then on appeal to the

Commandant, but took official notice of the testimony regarding the random selection made at

2 Pro se Respondent clarified the dual intent of his motion by email of August 8, 2017: "In cass the motion to

dismiss is construed not to include a determination as to the illegal subpoena and the unlawfully obtained private

medical records with the use of that subpoena, Mr. Edenstrom would like this email to be intended as a motion to

quash the subpoena, in support of and in addition to the motion to dismiss."

6
EDENSTROM NO ?724

the August 2016heanng in that case.3 The ALJ denied Respondent's motion to dismiss, and

upheld the legitimacy of the disputed Coast Guard subpoena, noting that only the subjects of

Coast Guard investigatory subpoenas may move to quash. See 46 CFR $ 5.305; 33 CFR

$ 20.609.

On August 28,2017, the ALJ issued a Protective Order, directing that sensitive, relevant

evidentiary materials, "including medical records, MMC credential applications and documents

related to drug testing," must not be publicly disclosed unless appropriately redacted.

The hearing in this matter convened on August 29,2017. At hearing, the Coast Guard

offered the testimony of three witnesses and entered thirteen exhibits into the record.

Respondent offered his own testimony and entered five exhibits into the record. Respondent

appeared pro se and was aided at hearing by his non-attorney son. The parties filed post-hearing

brieß and proposed findings of fact and conclusion of law.

The ALJ issued his D&O on March 20,2018. Concurrently, he issued an Addendum

Decision, subject to the August 28,2017, Protective Order, containing findings and discussion as

to Respondent's medical conditions. The findings and analysis of the Addendum Decision were

incorporated into the publicly available D&O "to the greatest extent possible without revealing

[personally identifying information.]" [Addendum Decision at 3.]

Respondent filed notice of appeal and perfected his appeal by filing a timely Appeal

Brief. The Coast Guard submitted a Reply Brief. Accordingly, this appeal is properly before

me.

3 Specifically, the August 8 order took official notice of the sworn testimony of two witnesses at the 2015-0352

hearing-the developer of the RandomWare software used by AMS, and the AMS vessels operation manager. This

testimony is at pages 7-18 and l9-23, respectively, of the 2015-0352 hearing transcript, filed as Respondent Exhibit

A in the case at hand. The ALJ also took ofïicial notice of Coast Guard Exhibits I and2 from the 2015-0352

hearing; Coast Guard Exhibit I was the AMS random selection, and Exhibit 2 was the September 22,2015 email

from AMS to Brusco's DER, notifuing him of the random selection of thirteen Brusco vessels, including the

HENRY BRUSCO, for drug testing.

7
EDENSTROM NO. "trÌ 2 4

BASES OF APPEAL

Respondent appeals from the D&O, which found proved both allegations of misconduct,

for failure to disclose diagnosed medical conditions on a Form CG-719K, submitted to the Coast

Guard in application for renewal of his credential, and for failure to submit to random drug

testing. Respondent raises the following questions on appeal:

Was Respondent acting under the authority of his license at the time of the

October 8, 2015 drug test?

Was the October 8, 2015 drug test properly orderèd?

Did the AIJ err in upholding the Coast Guard subpoena of Respondent's medical

records?

Was the AIJ's determination that Respondent lcnowíngly omítted medical

diagnoses from his applicatíon supported by substantial evidenceT

OPINION

Was Respondent actíng under the authority of hß lícense at the time of the October 8, 2015 drug

test?

Respondent has maintained, throughout this proceeding, that he was not acting under the

authority of his credential on October 8,2015, because he was not employed by Brusco on that

date.

To establish jurisdiction in a misconduct case, the act of misconduct alleged must be

proven to have occurred while the mariner was "acting under the authority" of his merchant

mariner credential. 46 U.S.C. $ 7703. A person employed in the service of a vessel is acting

under the authority of a merchant mariner credential when possession of the credential is either

"fr]equired by law or regulation" or o'fr]equired by an employer as a condition for employment."

46 CFR $ 5.57(a). "[Suspension and revocation] proceedings are directed solely at the

documents or licenses, not against person or property. Accordingly, when such action is based

upon a charge of omisconduct while acting under authority . . .,' the particular act must be related

I.

il.

lil,

il/.

I.

8
EDENSTROM NO. 2724

to the particular document or license and to the person's employment thereunder." Appeal

Decision 2620 (COX) at 4,2001WL 34080159 at 2 (quoting Appeal Decision 2025

ØRMSTRONG) at 4, 197 5 WL 17 1669 at 3).

The Coast Guard appellate brief observes that no Appeal Decision has directly addressed

a situation like this one, where a respondent mariner, serving periodically on coastwise vessels

without contract or articles, is required to complete a random drug test during his 'ooff'period

ashore. [CG Appellate Brief at 2.]

It is undisputed that, while serving as Master of the HENRY BRUSCO, Respondent was

acting under the authority of his credential. The crew of the HENRY BRUSCO, including

Respondent, \ryere to be relieved in a regularly scheduled crew change after arrival in port on

September 30,2015. The vessel arrived on the evening of Septernber 30, and Respondent was

directed to keep the crew onboard overnight, so a random drug screen could be completed on the

morning of October 1,2015. Respondent argues on appeal that after October 1,2015, he was

unemployed, and that on the date of his test refusal, October 8, he was in no way acting under the

authority of his credential.

The Coast Guard presents two alternative bases for finding that Respondent was acting

under the authority of his credential when he refused the October 8 drug test. First, his

ernployment relationship with Brusco, conditioned on his possession of a merchant mariner

credential, was continuous and remained ongoing as of October 8, 2015. Second, the obligation

to take the government-mandated random drug screen arose on October 1,2015, when Brusco

notified the off-signing crew of the HENRY BRUSCO of the obligation to test. Respondent

signed off as Master of the HENRY BRUSCO on October 1, a position that required a Coast

Guard license. Because his obligation to complete the random drug screen arose on October 1,

this second argument goes, the question ofjurisdiction depends on his status as of that date.

The ALJ, in his D&O, held that Respondent was acting under the authority of his

credential on October 8, establishing Coast Guard jurisdiction. The ALJ observed that, as of

October 8, while Respondent was no longer a crewmember assigned to a Brusco vessel, he

9
EDENSTROM NO. 2v24

remained a Brusco employee, eligible to fill safety-sensitive positions on Brusco vessels, and

also noted that the obligation to test arose earlier, while Respondent was a crewmember assigned

to a Brusco vessel.

The jurisdictional question on appeal is whether Respondent was acting under the

authority of his credential when he departed the drug testing facility on the afternoon of October

8,2015, in circumstances amounting to a refusal to test. I find that he was.

When Brusco contacted him on October 8, Respondent consented to complete the drug

screen and reported to the testing facility. In Respondent's words, he followed Brusco's

instructions to report for a drug test, "under duress": "I was told it would look real bad for

everyone if I didn't take it that day and fBrusco's DER] demanded that I did." [CG Ex. 12 at2.]

This statement supports a determination that he complied with the order to test in order to

maintain his employment relationship with the company. The DER informed Respondent that,

should he fail to report to the testing facility on October 8, 2015, Brusco would report that failure

to the Coast Guard. [D&O at 6.] This warning put Respondent on notice that his compliance

was being requested in direct connection with his credential.

Respondent believes that he was justified in departing the testing facility, in

circumstances that established a refusal to test, because he was "not under a contract nor on any

job site or vessel." [CG Ex. 12 at2; Tr. at 192-94.] Whatever name we assign to his

employment status on October 8,2015, Respondent's disputed actions on that date were quite

evidently related to his employment relationship with Brusco, and were therefore taken under the

authority of his credential.

The Coast Guard takes the position, as it did seventy yerìrs ago, that "the paramount

factor in determining whether a person is serving under the authority of a license or certificate is

that of the employment status." Appeal Decísion 389 (VENTOI- ),1949 WL 38781 at 3.

Expanding on the term "employment status," VENTOI-A states: "The basic employment stafus

required (. . . for Coast Guard jurisdiction), is that the seaman must be 'in the service of the

ship."' 1949 WL 38781 at 6. Where a mariner acts o'in the course of his employment," or "on

10
EDENSTROM NO 23 2t+

the shipowner's business," he acts "in the service of the ship," for purposes ofjurisdiction. Id. at

5. "The Coast Guard may assume jurisdiction when a seaman is 'in the service of the ship'

because he is then acting 'under authority of his license' if there is a causal relationship between

thetwo." Id.

Consider the'ocourse of emplo¡nnent" test in the context of a routine, governmentmandated pre-employment drug test. "No marine employer shall engage or employ any

individual to serve as a crewmember unless the individual passes a chemical test for dangerous

drugs for that employer." 46 CFR $ 16.210(a). A pre-ernployment drug screen is prerequisite to

employment and, therefore, the job applicant submitting to that pre-employment test is,

evidently, not yet an employee. The applicant is, however, submitting to the drug test in the

course of employment. "[T]he particular act"-the drug test-is "related to the particular

document or license and to the person's employment thereunder," in the words of Appeal

Decisíon 2620 (COX) at 4,2001WL 34080159 at 2 (quoting Appeal Decísion 2025

ØRMSTRONG) at4,1975WL 171669 at 3).

In Appeal Decisíon 2656 (JORDAN),2006 WL 1519585, the respondent mariner applied

for a position that required a merchant mariner document. Prior to hire, he was required to

submit to a pre-employment drug test. Under those circumstances, there was "no question that

Respondent was 'acting under the authority' of his document when he failed to submit to a preemployment drug test that was required as a condition of his employment." JORDAN at6,2006

V/L 1519585 at 3.

Here, Respondent's continued employment with Brusco, in a credentialed position, was

conditioned on his completion of the October 8, 2015 random drug test. As in JORDAN,itis

unquestionable that he was acting under the authority of his license when he failed to submit to

that test. Respondent argues that the employment relationship with Brusco was binary; when he

was aboard ship and receiving wages he was employed by Brusco, and when he was off the ship

and not receiving rryages, he was not ernployed. But comparison to pre-employment drug tests

illustrates that the question ofjurisdiction is not a binary status question----employee or nonemployee-but a fact-specific question as to whether Respondent's particular act-his visit to

ll
EDENSTROM NO. 27 2I+

the drug testing facility-was undertaken "in the course of his employment." See Appeal

Decision 389 (VENTOLA),1949 WL 38781 at 6.

The findings of the D&O support a determination that Respondent's visit to the drug

testing facility on October 8,2015, was undertaken at Brusco's behest, in the course of

Respondent's employment with that company, and thus his departure from the testing facility

was also in the course of Respondent's employment with that company. At all relevant times,

Respondent was acting under the authority of his credential, establishing jurisdiction for the

second allegation before this suspension and revocation proceeding.

u.

Was the October 8, 2015 drug test properly ordered?

Respondent argues that he was entitled to refuse to be tested in the absence of a contract

with the person demanding it. In other words, he suggests that the October 8, 2015 drug test was

not properly ordered, because, as he was not assigned to a vessel or on active duty with Brusco

on October 8, he was not eligible for random drug testing on that date. fRespondent's Appellate

Brief at 21.

Part I of this opinion addressed Respondent's related jurisdictional argument that he was

not acting under the authority of his license on October 8, 2015. That was a question of

jurisdiction, but this is a question as to a necessary element of the charge of misconduct laid

against Respondent. The second question, whether or not Respondent was entitled to refuse the

October 8 test without consequence to his credential -- that is, whether his employer had a right

to order it -- can be separately analyzed, but it will be resolved consistently with the answer to

the first, jurisdictional question.

"Misconduct is human behavior which violates some formal, duly established rule. . . .

It is an act which is forbidden or a failure to do that which is required." 46 CFR ç 5.27. This

misconduct proceeding is based upon a mariner's refusal to follow his ernployer's direction to

submit to a government-mandated random drug test. Having concluded that Respondent was

acting under the authority of his license, and that jurisdiction is therefore proper, I will now

l2
EDENSTROM NO 2724

consider the situation from a different point of view: whether a marine employer may require an

off-duty mariner who is not assigned to any vessel to submit to government-mandated random

drug testing. That is, was Brusco's direction to Respondent to submit to a drug test a legitimate

enforcernent of its obligation to test mariners under 46 CFR $ 16.230?

Coast Guard policy guidance provides ample support for the proposition that amariner

remains eligible for testing under 46 CFR $ 16.230 while in an off-duty, but "on-roster," status.

When calculating the number of random drug screens necessary to meet the required annual

testing frequency, marine ernployers are directed to base their calculation on the number of

employees who fill covered billets on their vessels: "For example; if a marine employer employs

12 crewmembers throughout a year to fill 6 crewmember billets on board their vessel, the

number of random tests required would be based on 12 employees. Thus, using a required rate

of 50%o,6 random tests would need to be conducted during that year." Marine Safety Manual,

Volume V, COMDTINST Ml6000.104 dated April24,2008, paragraph C.6.C.3.a.1 atC6-14.

Marine employers may only avoid the pre-employment drug test process for retuming seasonal

employees if those ernployees have been kept in an active random drug testing pool for the full

duration of the ofÊseason. Id.,paragraphC.6.B.7 at C6-10. "The same would hold true for a

seaman retuming to the same company after an absence (i.e. vacation or normal time off from

being part of a blue/gold crew) during which the seaman was still considered an employee of the

company (i.e. still receiving medical andlor other benefits)." Id.

In this case, Respondent had recently qualified for Brusco ernployee health benefits, and

was reportedly considering whether to apply for those benefits at the time of his refusal to test.

[Tr. at 149-50.] Had Respondent's employment continued as planned, Brusco would not have

required him to submit to a pre-employment drug test the next time he rotated back onto a

Brusco vessel, after entering an off-duty status on October 1,2015. [D&O at S.]

The question of whether a marine employer may require an off-duty mariner who is not

assigned to any vessel to submit to government-mandated random drug testing is of first

impression in these merchant mariner suspension and revocation proceedings. The National

Transportation Safety Board (NTSB) has addressed an analogous question, in a2009 appeal

l3
EDENSTROM No' 27 2I+

from the revocation of a civil airrnan's certificate, and held that apart-time, off-duty pilot

remained subject to selection by his ernployer for govemment-mandated random drug testing, so

long as his name remained on that airline's roster of available flight crew. Fed. Aviation Admin.

v. Pasternøcfr, NTSB Order No. EA-5443 at L0,2009 WL l222l5l at S,vacated and remanded

on other grounds,596 F.3d 836 (D.C. Cir. 2010). "fR]espondent, as a part-time or intermittent

pilot designated to perform flight crewmember duties . . . fell within the aegis of the DOT

random drug testing requirements." Id.

Marine employers' random testing of ofÊduty mariners ashore, who remain eligible to

rotate back into safety-sensitive positions without pre-ernployment testing, is part of the Coast

Guard's established drug testing policy for mariners, and supports the aim of deterrence in the

Coast Guard's efforts to maintain a drug-free maritime workforce. The October 8,2015 random

drug screen was properly ordered, in accordance with 46 CFR Part 16.

ru.

Did the AIJ err in upholding the Coast Guard subpoena of Respondent's medical records?

Throughout these proceedings, Respondent has remained steadfast in his position that the

Coast Guard exceeded its investigatory authority in issuing a subpoena for his medical records.

On August 8,2017, the ALJ in this matter issued an Order Denying Respondent's Motion

to Dismiss (August 8 Order). That Order addressed Respondent's objections to the Coast Guard

subpoena: "The Coast Guard's subpoena here appears to be sufficiently specific, limited, and

relevant to the matter at hand. Its purpose was to determine compliance with Federal Merchant

Mariner licensing requirements. I therefore see no merit to Respondent's arguments that the

subpoena was illegal." fAugust 8 Order at 5.] The ALJ also noted that the Exclusionary Rule

does not apply in Coast Guard suspension and revocation proceedings, so a challenge to the

legitimacy of the subpoena is immaterial to the admissibility of the evidence. [Id. at 4.]

The subpoena power of Coast Guard investigating officers with respect to suspension and

revocation proceedings is firmly established, and analogous in scope to the subpoena authority of

a federal district court:

t4
EDENSTROM NO. ,2724

(a) An official designated to investigate or preside at a hearing on matters that are

grounds for suspension or revocation of licenses, certificates of registry, and

merchant mariners' documents may administer oaths and issue subpenas to

compel the attendance and testimony of witnesses and the production of records

or other evidence during investigations and at hearings.

(b) The jurisdictional limits of a subpena issued under this section are the same as,

and are enforceable in the same manner as, subpenas issued under chapter 63 of

this title.

46 U.S.C. $ 7705. The referenced Chapter 63 governs marine casualty investigations, and

provides:

(a) In an investigation under this chapter . . . the production of any evidence may

be compelled by subpena. The subpena authority granted by this section is

coextensive with that of a district court of the United States, in civil matters, for

the district in which the investigation is conducted.

***

(d) An official designated to conduct an investigation under this part may issue

subpenas as provided in this section . . . .

46 U.S.C. $ 6304. See also Appeal Decision 2063 (CORNELIUS) at7,1976WL179598 at4.

The ALJ did not err in his interpretation of the Coast Guard's investigatory subpoena

power. The IO issued a subpoena to Respondent's medical care providers, in pursuit of possible

suspension and revocation action against Respondent's credential. The subjects complied with

the subpoena, and the records obtained were entered into evidence, in support of one of the two

allegations of misconduct now brought against Respondent.

In litigation arising out of the present matter, a federal district judge rejected

Respondent's restricted interpretation of the Coast Guard subpoena power under 46 U.S.C.

$ 7705. Edenstromv. U.S. Coast Guard,No. Cl7-5658 RBL,20l8 V/L 2229273 at I (W.D.

\ü/a. May 16,2018).4

a After the August 29,2017 hearing and before the June 21,2018 issuance of the D&O, Respondent filed suit

against the Coast Guard, seeking a declaratory judgment that the Coast Guard subpoena of Respondent's medical

records was illegal. The federal district court found that Respondent had not yet exhausted his administative

remedies and dismissed the claim without prejudice.

l5
EDENSTROM No. 2724

As noted by the ALJ's August 8 Order, even were the subpoena procedurally deficient,

the Exclusionary Rule does not apply in these suspension and revocation proceedings. Appeal

Decísion 2625 (ROBERTSON) at13-14,2002WL 32061801 at7 (citingAppeal Decision 2135

(FOSSANÐ, T978 WL 199018). "Any remedial action, such as those contemplated by þ6

U.S.C. chapter 77l,will upset the party whose conduct is found actionable, but this does not

convert the proceeding to a criminal case in which the rules of criminal procedure and evidence

must be followed." FOSSANI at 8, 1978 WL 199018 at 6.

I see no error in the ALJ's August 2017 order, denying Respondent's motion to quash the

subpoena, and his final D&O, which relied on evidence obtained by that subpoena. The ALJ's

conclusions as to the admissibility of Respondent's medical records were coffect in law.

IV

Was the AIJ's determination that Respondent lcnowingly omitted medical diagnosesfrom his

application supported by substantial evidence?

Respondent objects to the D&O's conclusion that he submitted a fraudulent application

by knowingly omitting relevant and material information from Form CG-719K. Respondent

argues that the medical records in evidence are not sufficient to support the ALJ's finding that

Respondent knew of his medical diagnoses at the time he completed the Form CG-719K medical

exam.

Submission of Form CG-719K, ooMerchant Mariner Credential Medical Evaluation

Report," is required for merchant marine officers like Respondent, when applying for an original

or renewed merchant mariner credential. See 46 CFR $$ 10.225(b)(7),10.227(dX6), 10.302.

The Coast Guard, as the credentialing authority for the United States merchant marine, has an

obligation to certify the medical and physical capacity of credentialed mariners. "service on

vessels may be arduous and impose unique physical and medical demands on mariners. The

public safety risks associated with the medical and physical conditions of mariners on vessels are

important considerations for the safe operation of vessels and the safety and well-being of the

crew. In the event of an emergency, immediate response may be limited to the vessel's crew,

and outside help may be delayed." Merchant Mariner Medical Manual, COMDTINST

l6
EDENSTROM No' 27 24

I|l{16721.48 dated August 30,2019, paragraph 4.a., at2.

46 CFR $ 10.30a(a) describes the scope and purpose of the medical ex¿rm conducted in

completion of the Form CG-719K: "The general medical exam must be documented and of such

scope to ensure that there are no conditions that pose significant risk of sudden incapacitation or

debilitating complication. This exam must also document any condition requiring medication

that impairs cognitive abilit¡ judgment, or reaction time."

Some portions of Form CG-719K are completed by the applicant, and other portions are

completed by a verifying medical practitioner. At Section I of the form, the applicant must

certiff, subject to prosecution under 18 U.S.C. $ 1001, that all provided information is true and

correct to the best of his or her knowledge, and that he or she has not knowingly omitted to

report any relevant, material information.

The truth of information provided by applicants for documents and licenses is

essential to the discharge of the Coast Guard mission of protection of life and

property at sea. . . . The contents of 18 U.S.C. 0 l00l are printed on all Coast

Guard license application forms. In signing one of these forms an applicant

acknowledges his a\ryareness of the meaning of this statute.

Appeal Decísion 2025 (ARMSTRONG) at5-6,1975 WL 171669 at 4. Under 18 U.S.C. $ 1001, it

is a crime to make a knowingly false statement to the government, or to knowingly conceal a

material fact from the government. This is a formal, duly established rule, violation of which

may give rise to a charge of misconduct under 46 CFR ç 5.27. Appeal Decision 2610

(BENNE|T) at 10, 1999 WL 33595178 at6, affd,NTSB OrderNo. EM-l 87,2000WL967428.

Section IV of Form CG-719K, Certification of Medical Conditions, "must be completed

by applicant and reviewed by verifying medical practitioner." The applicant must report, o'To the

best of the applicant's knowledge, does the applicant have, or have ever suffered from, any of the

following [88 medical conditions]?" A checkmark in the "yes" column is required "if the

applicant has had a previous diagnosis or treatment of the condition by a healthcare provider."

For all conditions marked "yes," the medical practitioner must supply additional information,

including limitations caused by the condition, whether or not the condition is under control, and

prognosis. Marking'oyes" for a listed condition does not medically disqualifu a mariner-the

t7
EDENSTROM NO 2724

practitioner must then conduct an individualized assessment of whether the condition impairs the

mariner to an extent incompatible with service at sea, under the standard set at 46 CFR Part 10.

The Coast Guard provides additional guidance to aid medical practitioners in these evaluations.

^lee NVIC 04-08, in effect in20l5.s

The ALJ concluded that, by signing the Form CG-719K stating he had never been

diagnosed with or treated for any of the medical conditions listed at Section IV, Respondent

knowingly omitted relevant, material information, in violation of 18 U.S.C. $ 1001. This

conclusion was based on the ALJ's findings that Respondent had been diagnosed with and

treated for, or knowingly suffered from, four of the conditions listed at Section IV of Form CG719K. [Addendum Decision at 3.] Respondent had actual or constructive knowledge of his

diagnoses, hence his submission of false sworn statements on Form CG-719K amounts to a

fraudulent application for merchant mariner credentials.6 ¡OAO at 13,19.l

Respondent asserts that the ALJ's findings as to Respondent's medical conditions at the

time of application were not based upon substantial evidence, arguing that he submitted evidence

showing that, at the time he certified the Form CG-719K, he had no "verified conditions," and

that he was not atryare of the diagnoses contained in his subpoenaed medical records.

[Respondent Appellate Brief at 5.]

In these proceedings, it is the responsibility of the ALJ to weigh the evidence presented

and to determine the weight given to conflicting evidence. Appeal Decísíon 2659 (SHINE) at 18,

2010 WL 4607369. I will not reweigh conflicting evidence on appeal when the ALJ's

determinations are reasonably supported by the record. Appeal Decision 2597 (TIMMEL) at 4,

1998 V/L 34073109 (citing Appeal Decision 2504 (GRACE) at7,1990 WL 10011229).

5 NVIC 04-08 has been incorporated into and superseded by the Merchant Mariner Medical Manual, COMDTINST

i[u416721.48 dated August 30,2019.

6 Not all false statements made by a credential applicant rise to the level of fraud. Appeal Decision 2663 (LtlW) at

7-8,2007 WL 3033580 at6. See also Appeal Decision 2608 (SHEPARD) af 8,1999WL33595176 (charge of

submission of a false application is a lesser included offense of the charge of submission of a fraudulent

application). To rise to the level of fraud, a false statement made on a sworn application must be made with actual

or constructive knowledge that statement is false. Appeal Decision 809 (MARQUES), 1955 WL 46693 at3.

l8
EDENSTROM NO 27 2I+

Upon review of the record, I find that the ALJ's findings as to Respondent's medical

diagnoses and treatment was supported by substantial evidence, contained in Respondent's

medical records and the Form CG-719K. Respondent's medical records document diagnosis and

treatment, prior to March 2015, of several medical conditions disclaimed by Respondent's

March 2015 Form CG-719K. The ALJ found, based upon Respondent's medical records, that

"Respondent had recently been treated for three of these conditions, and . . . knew that his

statements on the form denying having any listed conditions were not true." [D&O at 13.] The

Addendum Decision cites the details of Respondent's medical records which support this

finding, including recorded diagnoses and treatments, including prescription medications.

[Addendum Decision at4-5.] These diagnoses and treatments dated to2013 and20l4. [Id.]

The ALJ cites Respondent's statement, reported by his medical records, that he discontinued a

prescription medication because he disagreed with the "label" or diagnosis underlying the

prescription.T ¡td. at 5.1 The ALJ also cited Respondent's choice to visit a medical practitioner

who was unfamiliar with Respondent's medical history for the medical exam required to

complete Form CG-719-K, as circumstantial evidence in support of the misconduct charge.

[Addendum Decision at6-7.] Respondent provided evidence to the contrary at hearing,

testifoing that, while he had sought medical evaluation and treatment for various s¡rmptoms over

the years covered by his medical records, he was not privy to the diagnoses listed in those

records. [Tr. at 170-92.] However, the ALJ found, based on all the evidence presented, and his

own evaluation of the credibility of that evidence, that Respondent oowas aware he had been

diagnosed with and treated for" the implicated medical conditions. fAddendum Decision at 5.]

Respondent submitted a fraudulent application for a merchant mariner credential, by his

submission of a sworn Form CG-719K that contained knowing omissions of his medical

diagnoses and treatments.s Previous appeal decisions establish revocation as a mandatory

sanction for a proven misconduct charge predicated on submission of a fraudulent application.

Appeal Decision 2663 (LAW) at 10, 2007 WL3033580 at 6 (citing Appeal Decísion 2205

7 As noted elsewhere in this opinion, mariners are obligated to report øll pnor diagnoses of listed conditions in

Section IV of the CG-719K.

8 In determining whether an application is fraudulent, "[a]n attachment to an application is properly considered part

oftheapplication;'AppealDecision2610(BENNETT)at9,1999WL33595178at5(citngAppealDecision256g

(TAYLOR),1995 WL 17010119), affd,Ìli"lsB OrderNo. EM-l87,2000 WL 967428.

l9
EDENSTROM NO. 2724

(ROBLES),1980 WL 338494). "[P]roof in a suspension and revocation proceeding of a single

specification and charge of fraud in the procurement of a license is enough to require that license

toberevoked;' AppealDecision2613 (SIACK) at 10, 1999WL33595181 at5. Having

determined that Respondent's application was fraudulent, the ALJ correctly cited this precedent,

and imposed a sanction of revocation.

The ALJ's determinations are supported by reliable, probative, and substantial evidence.

I will not reweigh the conflicting evidence on appeal

CONCLUSION

The ALJ's findings and decision were lawful, based on correct interpretation of the law,

and supported by the evidence. The Order imposed by the ALJ, revoking Respondent's

Merchant Mariner Credential, is appropriate.

ORDER

The ALJ's Decision'and Order dated March 20,2018, is AFFIRMED.

, 

ø/2. alc6

Signed at washingron, D.c., this /f au, ot F84//ll4,zozo

20