UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA : DECISION OF THE 

UNITED STATES COAST GUARD : 

: VICE COMMANDANT 

 vs. : 

 : ON APPEAL 

 : 

 : NO. 2632 

MERCHANT MARINER’S : 

DOCUMENT NO. REDACTED : 

 : 

Issued to: Tommy A. White : 

This appeal is taken in accordance with 46 USC §7704, 46 CFR §5.701, and the 

procedures in 33 CFR Part 20. 

By an Order dated September 5, 2000, an Administrative Law Judge (ALJ) of the 

United States Coast Guard at Seattle, Washington, revoked Respondent’s above 

captioned merchant mariner’s document upon finding proved a charge of use of a 

dangerous drug. The single specification supporting the charge alleged that on 

July 22, 1999, Respondent had cocaine metabolite present in his body as shown by a 

random drug-screening test. 

A hearing (hereafter referred to as Hearing I) was held on January 27, 2000, in 

Juneau, Alaska. Subsequent hearings were held on May 17, 2000, and May 25, 2000, in 

Juneau, Alaska (hereafter referred to collectively as Hearing II). Respondent appeared 

with counsel and entered a response denying the charge and specification. The Coast 

Guard Investigating Officer introduced into evidence the testimony of five witnesses and 

ten exhibits. Respondent introduced into evidence his own testimony, one additional 

witness, and one exhibit. 
WHITE NO. 2632 

The ALJ’s Decision and Order (D&O) was served on Respondent on 

September 5, 2000. Respondent filed his appeal on November 3, 2000. This appeal is 

properly before me. 

APPEARANCES: Randall P. Ruaro, Esq., Keene & Currall, 540 Water Street, 

Suite 302, Ketchikan, Alaska, 99901, for Respondent. The Coast Guard Investigating 

Officer (IO) was Lieutenant Eric Bauer. 

FINDINGS OF FACT 

At all relevant times, Respondent held the above captioned document. On 

July 22, 1999, Respondent was employed by the Alaska Marine Highway System as a 

wiper on the M/V AURORA and provided a urine sample in compliance with his 

employer’s random drug testing program. [D&O at 1, TR Vol. I at 21 and Vol. II at 60-

63]. Mr. Greg Karlik served as the sample collector who collected Respondent’s urine 

sample. [IO Exhibit 1] Respondent signed the Custody and Control form to certify that 

he had submitted an unadulterated urine specimen. [IO Exhibit 1] Respondent’s urine 

sample was sent to Northwest Toxicology Drug Laboratory, a Department of Health and 

Human Services approved drug-testing laboratory. [IO Exhibits 2 and 3]. Upon receipt, 

an internal chain of custody and numbering system was established and the seals on each 

package and bottle were examined to ensure they were intact. [IO Exhibit 3]. 

Respondent’s sample was initially tested by immunoassay screening analysis, and tested 

positive for cocaine metabolite. The second and more specific gas chromatography/mass 

spectrometry (GC/MS) test confirmed the initial test. The results were then forwarded to 

the Medical Review Officer (MRO), Dr. Mary Demers. [IO Exhibit 7]. 

2
WHITE NO. 2632 

The MRO interviewed the Respondent and concluded that despite the 

Respondent’s denial of drug use, there was no reasonable medical explanation for the 

presence of cocaine metabolite in Respondent’s body on the date the specimen was 

collected. The MRO certified that the Respondent tested positive for cocaine metabolite. 

[IO Exhibit 7]. Respondent, through his attorney, stipulated at the outset of the hearing 

that he submitted a urine sample, that he signed the drug testing custody and control 

form, and that the sample tested positive for cocaine metabolite. [D&O at 1 and 

Respondent’s Answer dated October 12, 1999]. 

BASES OF APPEAL 

Respondent asserts the following bases of appeal from the decision of the ALJ: 

I. The ALJ applied an incorrect standard of the evidence necessary to rebut 

the presumption of being a user of a dangerous drug. 

II. The ALJ erred in not considering and assigning evidentiary value to 

undisputed facts in the Respondent’s favor. Respondent argues this 

error allowed the court to rule that Respondent had not successfully 

rebutted the presumption of being a user of a dangerous drug. 

III. The ALJ erred by misapprehending the testimony of the Respondent at 

the first hearing and finding his credibility to be in doubt. 

IV. The ALJ erred in not considering and assigning evidentiary value in the 

Respondent’s favor regarding the low level of his positive test result. 

V. The ALJ erred in finding the Respondent’s testimony alone insufficient 

to rebut the presumption of being a user of a dangerous drug. 

VI. The ALJ erred in implying from a statute that “de-cocainized” teas exist 

and are available for purchase and the ALJ drew the wrong inference 

from the statute. 

VII. The presumption created by 46 CFR §16.201 (b) generally violates the 

Due Process Clause of the United States Constitution. 

VIII. The presumption created by 46 CFR §16.201 (b) violates the Due 

Process Clause of the United States Constitution as specifically applied 

in this case. 

IX. The collection of Respondent’s urine is a violation of the United States 

Constitution’s protection against unreasonable search and seizure. 

X. The hearings conducted by the ALJ contained multiple procedural 

irregularities. 

3
WHITE NO. 2632 

XI. The ALJ erred in referencing unindexed Commandant Decisions on 

Appeal. 

XII. The Respondent recommends the Commandant vacate the ALJ Decision 

and dismiss the charges. 

OPINION 

I. 

Respondent asserts the ALJ applied an incorrect standard of the evidence 

necessary to rebut the presumption of being a user of a dangerous drug. 46 USC §7704 

(c) requires revocation of a mariner’s license or document if it is shown that he has been 

a user of a dangerous drug unless the mariner provides satisfactory proof that he is cured. 

Appeal Decision 2529 (WILLIAMS). If a mariner fails a drug test, he is presumed to be 

a user of a dangerous drug. 46 CFR §16.201 (b), Appeal Decisions 2584 

(SHAKESPEARE), 2529 (WILLIAMS). To prove this specification, the Coast Guard 

must establish a prima facie case of use of a dangerous drug by the mariner. 

46 CFR §5.539, Appeal Decisions 2584 (SHAKESPEARE), 2379 (DRUM), 2282 

(LITTLEFIELD), 2589 (MEYER), 2592 (MASON), 2529 (WILLIAMS), 2583 

(WRIGHT). 

 The Investigating Officer has the burden of proving all the elements of the charge 

and specification in a suspension and revocation proceeding. Appeal Decisions 2598 

(CATTON), 2583 (WRIGHT). The Coast Guard may establish a prima facie case of 

illegal drug use by showing that (1) the Respondent was tested for a dangerous drug, (2) 

the Respondent tested positive for a dangerous drug, and (3) the test was conducted in 

accordance with 49 CFR Part 40. Appeal Decisions 2584 (SHAKESPEARE), 2589 

(MEYER), 2592 (MASON), 2603 (HACKSTAFF), 2598 (CATTON), 2583 (WRIGHT). 

If the Coast Guard establishes a prima facie case, a presumption of use of a 

dangerous drug arises, and the burden then shifts to the Respondent to produce persuasive 

4
WHITE NO. 2632 

evidence to rebut the presumption. Appeal Decisions 2584 (SHAKESPEARE), 2379 

(DRUM), 2589 (MEYER), 2592 (MASON), 2603 (HACKSTAFF). If the Respondent 

fails to rebut the presumption, the ALJ may find the charge proved on the basis of the 

presumption alone. Appeal Decisions 584 (SHAKESPEARE), 2266 (BRENNER), 2174 

(TINGLEY), 2589 (MEYER), 2592 (MASON), 2603 (HACKSTAFF). 

In determining whether the government has established a prima facie case and, or 

whether the Respondent has successfully rebutted the presumption that arises when a 

prima facie case has been established, the ALJ’s findings must be supported by reliable, 

probative, and substantial evidence. 46 CFR § 5.63, Appeal Decisions 2584 

(SHAKESPEARE), 2592 (MASON), 2603 (HACKSTAFF). This “substantial evidence” 

standard has been determined to be the equivalent of the preponderance of the evidence 

standard. Appeal Decisions 2603 (HACKSTAFF), 2472 (GARDNER). 

In the present case, the Coast Guard established a prima facie case of the use of a 

dangerous drug by satisfying the necessary elements. First, the Coast Guard showed that 

Respondent was the person who was tested for dangerous drugs. Respondent reported to 

the sample collection site without identification, at which time the collector took 

Respondent’s picture after he provided Mr. Karlik with a urine specimen. [TR Vol. I at 

21] Second, the Coast Guard showed that Respondent screened positive for the use of a 

dangerous drug on July 22, 1999, as evidenced by the Custody and Control form and lab 

results. [IO Exhibit 3 and TR Vol. I at 20-22]. The MRO reviewed and verified that the 

Respondent tested positive for cocaine metabolite and the Respondent was unable to offer 

a medical explanation for the presence of cocaine metabolite in his body when informed 

by the MRO that he failed the drug test. Finally, the Coast Guard showed that 

5
WHITE NO. 2632 

Respondent’s urinalysis was processed in accordance with 49 CFR Part 40. This 

involved proof of the collection process, proof of the chain of custody, proof of how the 

specimen was handled and shipped to the testing facility, and proof of the qualifications 

of the laboratory. [D&O at 3-4, IO Exhibits 1-8]. After the Respondent provided his 

urine and certified that it was his, it was sent to Northwest Toxicology Drug Laboratory, 

where a sample processor assumed custody of the specimen, and ensured that the 

identification number on the Custody and Control Form matched the number on the 

specimen container. [D&O at 4, IO Exhibit 3]. 

Based on the record and the ALJ’s D&O, I find that the ALJ did not err in holding 

that the Investigating Officer established a prima facie case by a preponderance of the 

evidence that Respondent was a user of a dangerous drug. 

II-VI. 

In his bases of appeal II through VI, Respondent asserted cumulatively that the 

ALJ did not give appropriate weight and consideration to Respondent’s evidence and 

testimony in order to rebut the presumption of drug use established by the Coast Guard. 

Because appeal bases II through VI address the ALJ’s broad discretion to evaluate the 

credibility and admissibility of evidence, they will be consolidated and discussed below. 

Respondent first argues that the ALJ erred in not considering and assigning 

sufficient weight to undisputed facts in the Respondent’s favor. 

Respondent also argues that the ALJ did not consider favorable character 

testimony regarding Respondent’s work on the M/V AURORA. On this point, 

Respondent’s argument is clearly without merit. The transcript clearly shows that the 

6
WHITE NO. 2632 

ALJ heard and considered this evidence, but chose to discount it due to its lack of 

probative value. [See, TR Vol. II at 61 - 62] 

Respondent also argued that the ALJ did not give sufficient weight to the fact that 

Respondent had previously tested negative for drugs and had received a physical 

examination where he tested negative for drugs. I agree that the ALJ does not address 

this issue directly in his D&O. However, in his D&O the ALJ writes, 

Consequently, after consideration of the full record, consisting of the exhibits, 

testimony of the witnesses including a transcript of proceedings, and the Coast 

Guard’s written closing arguments, the following constitutes the decision in this 

matter. 

[D&O at 2, emphasis added]. 

Respondent also contended that the ALJ did not consider the presence and illegal 

sale of Peruvian Inka tea in South Florida to support the fact that it was highly likely that 

he digested Peruvian Inka tea laced with cocaine. Respondent contended that illegal 

Peruvian tea did exist and produced evidence that the DEA had been trying for ten years 

to stop the flow of Peruvian Inka tea containing coca leaves from entering the United 

States. [See Respondent’s Brief at 5]. Respondent also asserted that the ALJ erred by 

misinterpreting Respondent’s testimony at Hearing I and finding his credibility to be in 

doubt. For that proposition, Respondent cites several instances in which the ALJ 

considered Respondent’s evidence, but then came to a conclusion different from that of 

the Respondent. [See Appellate Brief of Respondent, Thomas White dated November 3, 

2000]. 

Respondent next argued that the ALJ erred in not considering and assigning 

sufficient evidentiary value in Respondent’s favor regarding the low level of his positive 

7
WHITE NO. 2632 

test result. Dr. Cholakis testified that Health Inka tea is a product that has been known 

for thousands of years to be used for cultural purposes and contains cocaine. [TR Vol. I at 

6]. Dr. Cholakis also testified that Respondent’s test results of 1965 nanograms per 

milliliter (ng/ml) are consistent with the levels reported in scientific literature for persons 

drinking cocaine-laden tea. [TR Vol. I at 80]. However, Dr. Cholakis also stated that test 

results of 1965 ng/ml are also consistent with someone who uses cocaine. [TR Vol. I at 

82]. 

Respondent also argued that the MRO erred when she did not ask Respondent 

whether he had imbibed Peruvian Inka tea. When verifying a positive test result, an 

MRO is required only to examine alternative medical explanations for positive test 

results. Appeal Decision 2583 (WRIGHT). 

Finally, Respondent argued that the ALJ erred in concluding that his evidence of 

possible innocent ingestion of cocaine was not sufficient to rebut the presumption of drug 

use established by the Coast Guard. The ALJ found that Respondent might have 

consumed “de-cocanized” tea. However, the ALJ did not find that Respondent had 

innocently imbibed tea laced with cocaine. [D&O at 7]. 

In each of the bases of appeal listed above, the central issue is the question of 

whether the ALJ considered Respondent’s testimony, evidence, and arguments, whether 

the ALJ gave that evidence the appropriate weight, and finally, whether the ALJ reached 

appropriate conclusions based on that evidence. 

 A careful review of the record reveals no instance in which the ALJ failed to 

consider the evidence presented by Respondent. That leaves us with the question of 

8
WHITE NO. 2632 

whether the ALJ gave appropriate weight to the evidence and came to appropriate 

conclusions regarding the evidence. 

In evaluating the evidence presented at a hearing, the ALJ is in the best position to 

weigh the testimony of witnesses and assess the credibility of evidence. Appeal Decisions 

2584 (SHAKESPEARE), 2421 (RADER), 2319 (PAVELIC), 2589 (MEYER), 2592 

(MASON), 2598 (CATTON). The ALJ has broad discretion in making determinations 

regarding the credibility of witnesses and in resolving inconsistencies in evidence. 

Appeal Decisions 2560 (CLIFTON), 2519 (JEPSON), 2516 (ESTRADA), 2503 

(MOULDS), 2492 (RATH), 2598 (CATTON), 2382 (NILSEN), 2365 (EASTMAN), 

2302 (FRAPPIER), 2290 (DUGGINS). The ALJ’s Decision is not subject to reversal on 

appeal unless his findings are arbitrary, capricious, clearly erroneous, or based on 

inherently incredible evidence. Appeal Decisions 2584 (SHAKESPEARE), 2570 

(HARRIS), aff’d NTSB Order No. EM-182, 2390 (PURSER), 2363 (MANN), 2344 

(KOHAJTA), 2333 (AYALA), 2581 ( DRIGGERS), 2474 (CARMIENKE), 

2589 (MEYER), 2592 (MASON), 2560 (CLIFTON). 

Using the standards described above, I find that the ALJ’s determinations 

regarding the evidence, its weight, and the credibility of the witnesses were not arbitrary, 

capricious, clearly erroneous, or based on inherently incredible evidence. Therefore, I 

find that the ALJ did not err in his evaluation of the evidence and Respondent’s 

testimony in this case. 

VII-IX. 

Respondent next lists a number of Constitutional issues in summary fashion. 

9
WHITE NO. 2632 

Suspension and Revocation proceedings are administrative, not judicial, 

proceedings whose purpose is to promote safety at sea; judicial review is available in the 

Federal Courts. Suspension and revocation proceedings have as the focus of their inquiry 

issues of compliance with statutes and regulations; Constitutional issues are the province 

of the Federal Courts. 46 USC §7701 et seq. 

The Coast Guard’s urinalysis collection and testing programs are conducted in 

accordance with regulations promulgated under the Administrative Procedure Act (APA). 

5 USC 552 et seq. Those regulations, set forth at 46 CFR Part 16 and 49 CFR 

Part 40, describe the procedures for drug specimen collection and the forms of testing 

that marine employers may conduct on their employees. With respect to determinations 

of Constitutionality, the Courts have long held that although an administrative "...agency 

may always determine questions about its own jurisdiction...[t]he law has long been clear 

that agencies may not nullify statutes.” Public Utilities Commission v. U.S., 355 U.S. 

534, 539 (1958); Oestereich v. Selective Service Board, 393 U.S. 233, 242 (1968) 

(Harlan, J., concurring); Johnson v. Robinson, 415 U.S. 361, 368 (1974); Weinberger v. 

Salfi, 422 U.S. 749, 765 (1975); Moore v. City of East Cleveland, 431 U.S. 494, 526 

(1977) (Burger, C.J., dissenting). That is exclusively within the purview of the Federal 

Courts. Appeal Decisions 2560 (CLIFTON), 2546 (SWEENEY). Therefore, I will not 

make a determination on Respondent’s constitutional claims. 

X. 

Respondent asserts that the hearing conducted by the ALJ contained multiple 

irregularities. Specifically, at Hearing I on January 27, 2000 held at Juneau, AK, severe 

weather conditions prevented the court reporter from attending the hearing to transcribe 

10
WHITE NO. 2632 

the testimony. [D&O at 1]. It is well established that in the absence of the transcript of a 

hearing, the Commandant has no “sufficient legal basis” upon which to affirm the 

findings and order of the ALJ. Appeal Decision 2517 (BURRUS), 2394 (ANTUNEZ). 

However, this case is distinguished from BURRUS and ANTUNEZ. Tape recordings 

were made of the telephonic testimony of the witnesses at Hearing I. [D&O at 1]. 

However, the ALJ later determined that the tape recordings were not suitable for 

transcription. Based on that finding, the ALJ vacated Hearing I and ordered a rehearing, 

which was held on two subsequent days, May 17 and May 25, 2000 (Hearing II). [See 

D&O at 2 and ALJ Notice of Rehearing dated March 3, 2000] A transcript was made of 

Hearing II, which the ALJ relied upon in making his determination. [D&O at 2]. 

Respondent also argued that when the ALJ convened a rehearing, the Coast Guard was 

given time to examine Respondent’s wooden box which allegedly held Peruvian Inka Tea 

and that, based on that examination, the Coast Guard was able to show there was little 

likelihood that the box had ever contained cocaine – Respondent argues that this was 

prejudicial to his case. Respondent also argued that the ALJ compared and contrasted 

Respondent’s demeanor and testimony in Hearing I against his demeanor in Hearing II 

and the ALJ gave insufficient weight to Respondent’s testimony in Hearing II. 

Respondent’s arguments are without merit. When the ALJ determined the tape 

recordings of Hearing I were not transcribable, he properly decided to rehear the case. A 

review of the record demonstrates that the ALJ and the parties properly addressed the 

issues related to the charge and specification brought against Respondent’s merchant 

mariners document. Regarding the issue of the ALJ examining Respondent’s demeanor 

to determine his credibility, as was stated above, the ALJ has broad discretion to make 

11
WHITE NO. 2632 

determinations of witness credibility and to resolve inconsistencies in evidence. Appeal 

Decisions 2560 (CLIFTON), 2519 (JEPSON), 2516 (ESTRADA), 2503 (MOULDS), 

2492 (RATH), 2598 (CATTON), 2382 (NILSEN), 2365 (EASTMAN), 2302 

(FRAPPIER), 2290 (DUGGINS). All of the issues raised by Respondent above were 

well within the ALJ’s discretion to resolve. I can find no instance where the ALJ was 

arbitrary, capricious or clearly erroneous in his decisions. 

XI. 

 Finally, Respondent argued that the ALJ erred in referring to un-indexed 

Commandant Decisions on Appeal (CDOA). Title 5 USC 552 (a) (2) provides that an 

opinion or final order that affects a member of the public may be relied on or cited as 

precedent only if has been indexed and either made available or published. Appeal 

Decision 2451 (PAULSEN). In the present case, the CDOA cited by Respondent, Appeal 

Decisions 2592 (MASON) and 2584 (SHAKESPEARE) were indexed and available to 

Respondent in accordance with the regulations governing suspension and revocation 

proceedings: 

Copies and indexes of decisions on appeal are available for inspection and 

copying at . . . the document inspection facility at the office of any Coast Guard 

District, Activity, or Marine Safety Office . . . the public reading room at Coast 

Guard Headquarters . . . [or] the public reading room of the Coast Guard ALJ 

Docketing Center, Baltimore, MD. . . Any person wanting a copy of a decision 

may place a request with the Hearing Docket Clerk. 

33 CFR § 20.1103 

I find Respondent’s argument is without merit. 

12
WHITE NO. 2632 

13

XII. 

Respondent concluded by recommending that I vacate the ALJ’s D&O and 

dismiss the charges. For the aforementioned reasons, I will not. 

The ALJ found that the Coast Guard satisfied its burden of establishing a prima 

facie case of use of a dangerous drug. The burden then shifted to the Respondent to rebut 

the presumption that he was a user of a dangerous drug. Although the Respondent 

testified that he was not a user of cocaine, the ALJ’s Decision was based on the totality of 

the evidence, which indicated that the Respondent failed to satisfy his burden of rebutting 

the presumption of use of a dangerous drug.

CONCLUSION 

 The findings of the ALJ are supported by reliable, probative, and substantial 

evidence. The ALJ’s Decision was not arbitrary, capricious, clearly erroneous, or based 

on inherently incredible evidence. The hearing was conducted in accordance with 

applicable law. 

ORDER 

The Administrative Law Judge’s Decision and Order dated September 5, 2000 is 

AFFIRMED. 

Signed at Washington, D.C., this 9th day of August, 2002