SHAFFER NO. 2627 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

____________________________________ 

UNITED STATE OF AMERICA ) 

UNITED STATES COAST GUARD ) 

 ) DECISION OF THE 

vs. ) 

 ) VICE COMMANDANT 

MERCHANT MARINER’S ) 

LICENSE No. 887187 AND ) ON APPEAL 

DOCUMENT No. [redacted] ) 

 ) NO. 2627 

Issued to David Brian Shaffer____________ ) 

This appeal is taken in accordance with 46 U.S.C. § 7702, 46 C.F.R. § 5.701, and 

the procedures in 33 C.F.R. Part 20. 

By a Decision and Order (D&O) dated June 8, 2000, an Administrative Law 

Judge (ALJ) of the United States Coast Guard at New Orleans, Louisiana, found proved a 

charge of misconduct with one supporting specification. The single specification alleges 

that Appellant, did, on July 7, 1999, while employed as a tankerman at Economy Boat, 

provide an adulterated urine specimen as evidenced by nitrate found during a drug test 

administered on the urine specimen collected on that date. 

At a hearing held on January 12, 2000, at the United States Coast Guard Marine 

Safety Unit, Baton Rouge, Louisiana, the Appellant appeared with counsel and entered a 

denial of the charge and specification. The Coast Guard Investigating Officer introduced 

eleven exhibits and called four witnesses. Appellant introduced two exhibits and called 

four witnesses. The ALJ introduced two exhibits. The charge and specification were 

found proved and Appellant’s license and document were revoked. 

The D&O was served on Appellant on June 8, 2000. Appellant filed a Notice of 

Appeal on July 6, 2000, and an appeal brief on October 20, 2000. A supplementary 

appeal brief was filed on November 20, 2000. This appeal is properly before me. 

APPEARANCE: Madro Bandaries, Esq., Post Office Box 56458, New Orleans, 

Louisiana 70156-6458 for the Appellant. The Investigating Officer was LT(jg) 

Christopher J. Gagnon, U.S. Coast Guard. 

1
SHAFFER NO. 2627 

FACTS

At all times relevant, the Appellant was the holder of the above captioned license 

and document. On July 7, 1999, the Appellant was employed as a tankerman by 

Economy Boat Store, New Orleans, Louisiana. At that time, the Appellant was engaged 

in transporting supplies by boat to various shore-side and offshore petroleum related 

facilities and vessels. 

On July 7, 1999, Ms. Paula Landry, a specimen collector employed by West 

Baton Rouge Medical Clinic, a company retained to implement the Economy Boat 

Store’s drug testing program, conducted a random collection of urine specimens at the 

offices of Economy Boat Store. The Appellant was the last employee to provide a 

specimen that day. 

At the time of the collection, the Appellant was given a specimen cup and 

directed to the only bathroom on site to provide his specimen. The Appellant was 

observed entering the bathroom alone and later exiting with his specimen. He placed his 

specimen on the table in front of Ms. Landry, who poured it into two containers for 

shipment to the laboratory. The Appellant prematurely left the collection site before 

initialing the two labels used to seal the two specimen containers. The Appellant 

returned immediately after Ms. Landry called him back, and completed the collection 

process by signing the labels. The Appellant’s sample was shipped to Laboratory 

Specialist, Inc. for testing. 

At the laboratory, Appellant’s sample initially screened at 69 ng/ml for THC and 

was determined to contain a nitrate concentration of 1112 mg/ml. The Department of 

Health and Human Services defines a urine specimen as adulterated if the nitrate 

concentration in the sample is greater than or equal to 500 mg/ml. The laboratory 

determined that Appellant’s sample was adulterated and forwarded its results to the 

Medical Review Officer, Dr. Patrick Daigle. 

Dr. Daigle reported Appellant’s sample as adulterated and labeled copy four, 

block eight, of the custody and control form as “test not performed” in accordance with a 

U.S. Department of Transportation Memorandum to Medical Review Officers dated 

September 28, 1998. 

2
SHAFFER NO. 2627 

 

BASES FOR APPEAL

I. The ALJ erred in finding that regulatory procedures were complied with 

regarding the collection and processing of the Appellant’s urine sample. 

II. The ALJ erred inasmuch as he was arbitrary and capricious in holding that 

there was no breach in the chain of custody. The Appellant argued that there 

was clear and convincing evidence that other credible explanations existed 

that would explain the apparent adulteration of the Appellant’s urine 

specimen. 

III. The ALJ erred in not providing the Appellant with a complete transcript of the 

hearing with all exhibits, and the ALJ did not have the transcript of the 

hearing before rendering his decision. 

OPINION

Before proceeding to the merits, it is necessary to clarify the jurisdictional basis of 

the specification. Appellant was charged with misconduct and the underlying 

specification states in part, “The sample was found to contain a high concentration of 

nitrates and determined to be adulterated by the laboratory and Medical Review Officer.” 

The specification could be read as though the laboratory or Medical Review Officer 

adulterated Appellant’s sample. Based on the record and Appellant’s vigorous defense, it 

is clear that neither the Coast Guard nor the Appellant interpreted the specification in this 

manner. Both parties understood the specification to mean that Appellant adulterated the 

specimen. Although the specification may not have been artfully worded, this does not 

necessarily constitute reversible error. Findings leading to an order of suspension or 

revocation of a document can be made without regard to the framing of the original 

specification as long as the Appellant has actual notice and the questions are litigated. 

Appeal Decisions 1792 (PHILLIPS) and 2422 (GIBBONS), citing Kuhn v. Civil 

Aeronautics Board, 183 F.2d 839 (D.C. Cir. 1950). 

The record clearly demonstrates that the Appellant understood which act 

constituted the basis for the misconduct charge, namely, his providing an adulterated 

3
SHAFFER NO. 2627 

urine specimen. This is the offense that was actually litigated by the parties, regardless of 

the deficiency in the specification. Furthermore, Appellant did not object to the wording 

of the specification, either at the hearing or on appeal. Therefore, there was no prejudice 

to Appellant and the specification will not be set aside. Appeal Decisions 2386 

(LOUVIERE) and 2578 (CALLAHAN). 

I & II 

Appellant asserts that the urinalysis results should not have been considered by 

the ALJ because the collection process did not meet all the technical requirements of the 

regulations. Appellant contends there were various discrepancies with the chain of 

custody. Furthermore, Appellant asserts that the ALJ was arbitrary and capricious in not 

finding a breach in the chain of custody based on Appellant’s clear and convincing 

evidence. I have previously held that the failure to meet a technical requirement of a 

regulation does not vitiate an otherwise proper chain of custody. Appeal Decisions 2562 

(BEAR), 2542 (DEFORGE), 2522 (JENKINS), and 2537 (CHATHAM). A drug use 

charge may be found proved even when minor procedural errors not adversely affecting 

the actual chain of custody or specimen integrity exist. Gallagher v. National 

Transportation Safety Bd., 953 F.2d 1214 (10th Cir. 1992). I will reverse the decision 

only if the findings are arbitrary, capricious, clearly erroneous or based on inherently 

incredible evidence. Appeal Decisions 2570 (HARRIS), aff NTSB Order No. EM-182 

(1996); 2390 (PURSER), 2363 (MANN), 2344 (KOHAJDA), 2333 (AYALA), 2581 

(DRIGGERS), 2474 (CARMIENKE), 2607 (ARIES), and 2614 (WALLENSTEIN). 

In the present case, Appellant alleges that there were various flaws with the chain 

of custody. The record establishes that the collection, chain of custody, and the testing of 

Appellant's urine specimen were all in substantial compliance with the drug testing 

regulations found at 49 C.F.R. Part 40. Appellant was identified at the collection site. 

[Trial Record (TR) at 93] Appellant provided a urine specimen that the sample collector 

poured into a bottle and sealed in Appellant’s presence, albeit after he stepped away from 

the collection site and was called back after a very brief period. [TR at 99-101] The 

specimen bottle was sealed with a tamper-proof seal. [TR at 101] Appellant's personal 

information and the unique control number were recorded on a Drug Testing Custody and 

Control Form. [TR at 102] Appellant signed this form and certified that he provided his 

4
SHAFFER NO. 2627 

urine to the collector; that the specimen bottle was sealed with a tamper-proof seal in his 

presence; and that the label and control numbers affixed to the specimen bottle were 

correct. [TR at 102-103] The specimen was properly delivered to the laboratory. [TR at 

116-117] There is no evidence that the specimen was ever opened prior to being received 

by the laboratory and there is no contention that the handling of the specimen at the 

laboratory and its testing were improper. 

Based on the foregoing, I find that Appellant’s specimen was submitted, collected 

and transported in full accordance with standard federal drug testing rules, procedures 

and regulations. I also find that any discrepancies were minor and technical in nature and 

did not adversely affect the chain of custody or specimen integrity. Therefore, I will not 

disturb the findings of the ALJ who did not act arbitrarily and capriciously in this case. 

III 

Appellant asserts that the ALJ erred by not providing the Appellant with a 

complete transcript of the hearing that included all hearing exhibits. An Appellant will 

be provided a transcript of the hearing as part of the appeal process pursuant to 33 C.F.R. 

§ 20.1002. In the absence of the complete transcript, the D&O of the ALJ cannot be 

reviewed under the standards established in applicable law. 5 U.S.C. §§ 556(d), (e); 46 

U.S.C. § 7702(a); 46 C.F.R. § 5.701(b). 

In the present case, the entire record of the hearing was provided to the Appellant 

who perfected the appeal that is now before me. Initially, it appears that the ALJ 

forwarded the transcript to Appellant without any hearing exhibits. See ALJ letter dated 

November 7, 2000. Appellant alleged this was an error in his original appeal brief dated 

October 19, 2000. However, Appellant did not bring this omission to the attention of the 

ALJ until he filed his original brief. On November 7, 2000, the ALJ forwarded the 

missing exhibits to Appellant’s counsel and indicated that he would have forwarded the 

exhibits earlier if the Appellant had notified him. See ALJ letter dated November 7, 

2000. Subsequently, Appellant’s counsel filed a supplementary appeal brief and again 

alleged the same error. The ALJ did not violate the applicable regulation when he 

forwarded the transcript to Appellant. 33 C.F.R. § 20.1002. In any event, the ALJ 

forwarded the hearing exhibits to Appellant, and Appellant submitted a second brief. The 

Appellant was not prejudiced by not having the exhibits earlier. 

5
SHAFFER NO. 2627 

The Appellant also contends that the ALJ erred inasmuch as he rendered his 

decision without the transcript of the hearing. 33 C.F.R. § 20.902(b) provides that the 

decision of the ALJ must rest upon a consideration of the whole record of the 

proceedings. 33 C.F.R. § 20.903(a) further provides that the “transcript of testimony” is 

part of the official record of a proceeding. This definition is consistent with the 

Administrative Procedures Act (APA). 5 U.S.C. § 556(e). Even though the definition of 

record includes the transcript of testimony, the APA does not require an ALJ to wait until 

the testimony is transcribed to render a decision and most agencies do not produce a 

transcript of a proceeding unless there is an appeal. See 5 U.S.C. § 557(b) and Attorney 

General Manual on the APA at 79, reprinted in Federal Administrative Procedure 

Sourcebook 2d Ed. (1992) at 145. Furthermore, 33 C.F.R. Part 20 does not require that 

the ALJ delay his decision until a transcript is produced. Judicial expediency would 

dictate otherwise. It is clear from the record and the D&O that the ALJ considered the 

testimony of the witnesses who appeared at Appellant’s hearing. Given that the ALJ 

conducted, and was present for, the entire hearing, the Appellant’s argument that the ALJ 

erred because he did not consider the transcript of hearing is without merit. 

Based on the foregoing, I find that the ALJ did not err by forwarding only the 

transcript to the Appellant. I also find that the ALJ did not err when he rendered his 

decision without the transcript of testimony. I note that the appellate record submitted to 

the Commandant contains the transcript and all exhibits, and this decision was based on 

the record of proceedings. 

CONCLUSION

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

evidence. The hearing was conducted in accordance with applicable law. 

6
SHAFFER NO. 2627 

7

ORDER

The Decision and Order of the Administrative Law Judge dated June 8, 2000, is 

AFFIRMED. 

 //S// 

T. H. COLLINS 

 Vice Commandant 

 Acting Commandant 

Signed at Washington, D.C. this 25th day of February, 2002.