UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

UNITED STATES OF AMERlCA

UNITED STATES COAST GUARD

v.

MERCHANT MARlNER LICENSE

&

MERCHANT MARINER DOCUMENT

Issued to: AARON LOUIS CHRlSTIAN

DECISION OF THE

VICE COMMANDANT

ON APPEAL

NO. 2692

This appeal is taken in accordance with 46 U.S.C. § 7703,46 C.F.R. Part 5, and the

procedures set forth in 33 C.F.R. Part 20.

By a Decision and Order (hereinafter "D&O") dated November 13,2009, Bruce T.

Smith, an Administrative Law Judge (hereinafter "ALl") ofthe United States Coast Guard at

New Orleans, Louisiana, granted a Motion to Dismiss filed by Mr. Aaron Christian (hereinafter

"Respondent") upon finding that the Coast Guard had failed to prove the misconduct charge

alleged in the Coast Guard's Amended Complaint.

FACTUAL AND PROCEDURAL HISTORY

Respondent was employed by Higman Marine Services and holds a merchant mariner's

license and a merchant mariner's document issued by the U.S. Coast Guard. [D&O at 2]

According to the Coast Guard's Complaint, on November 14,2008, Respondent took and failed

an alcohol test, providing a breath sample that indicated a blood alcohol content in excess both of

federal limits and those permitted by his employer. [Id.]

The Coast Guard filed its original Complaint against Respondent's Coast Guard-issued

mariner credentials on May 6, 2009, alleging that Respondent committed misconduct and
violation oflaw or regulation by manifesting a blood alcohol content level in excess ofthe

Department of Transportation's Breath Alcohol Test standards. [D&O at 2} On August 5, 2009,

the Coast Guard amended its Complaint to remove the "violation oflaw or regulation"

allegation. [Jd.} The Coast Guard did not remove the allegation ofmisconductl

, and it

remained a pending charge at all stages ofthe proceeding. [Jd.} The misconduct allegation

alleged that Respondent violated a company policy which prohibits employees from reporting to

work under the influence of alcohol.

The hearing in the matter convened on September 22,2009, in Houston, Texas. During

the ftrst day ofthe hearing, the Coast Guard called three ofits eight witnesses and presented a

series of exhibits, while Respondent presented one exhibit. [D&O at 3] The Coast Guard's

second witness, John Frye, was a representative ofRespondent's employer responsible for

implementing the company's drug and alcohol testing policy. [D&O at 6] Although the

company purported to implement random tests, it was clear from Frye's testimony that in the

speciftc instance ofthe tests conducted on November 14, 2008, the company's selection for

testing ofthe oncoming crew that included Respondent was not wholly random. [D&O at 6-9]

Mr. Frye testifted that he uses two dice and, on occasion, a number-generating website, to

produce the randomly-assigned number for a vessel that would be subject to random drug and

alcohol testing. [D&O at 7-8] As Mr. Frye explained it, there were logical and statistical flaws

in the company's dice-based selection process, and he never explained how or when he would

opt to use the website instead ofthe dice. [D&O at 9-10]

As the hearing began on the second day, Respondent moved to dismiss the matter, and

the ALJ granted the Coast Guard an opportunity to submit a briefin opposition. [D&O at 3]

The Coast Guard ftled its opposition brief on October 8, 2009, and Respondent ftled a reply to

that brief on October 26,2009. On October 27,2009, the ALJ issued an order granting

Respondent's Motion to Dismiss, with prejudice. [D&O at 14] The ALJ issued an amended

I Under Coast Guard regulations, "misconduct ... is human behavior which violates some formal, duly established

rule" which may be found in, among other places, "a ship's regulation or order." 46 C.F.R. § 5.27. Misconduct "is

an act which is forbidden or a failure to do that which is required." ld.

2
order-which discussed the basis for dismissal in greater detail-{)n November 13, 2009. The

Coast Guard appeals.

BASES OF APPEAL

This appeal is taken from the ALl's D&O, which dismissed the Coast Guard's

Complaint, with prejudice. The Coast Guard raises six bases of appeal:

I The court did in fact apply the Exclusionary Rule, a rule held by the

Commandant to be inapplicable to the Coast Guard's administrative

actions, by requiring the Coast Guard to prove a scientifically and

mathematically valid random testing procedure prior to the introduction

ofa positive alcohol breath test into the evidentiary record.

II The court's citation to 46 C.PR. 16.230 in support ofits Decision &

Orderfinding a deficiency in a random alcohol test is misplaced and

incorrect;

III The court erred by deciding the potentially dispositive issue of

"relinquishment or abandonment ofa right or privilege" in its D&O with

regard to Respondent's employment agreement without providing either

party an opportunity to be heard on the issue;

IV The court misapprehendedfactual allegation fifteen in the complaint and

incorrectly asserted that the Coast Guard alleged the Respondent violated

49 C.PR. § 40. 285(b);

V The court confused the purpose ofthe Coast GuardAdministrative

Hearing Process with the adjudication ofconstitutional issues.

OPINION

The standard ofreview for abuse of discretion is highly deferential:

A reviewing court conducting review for abuse of discretion is not free to

substitute its judgment for that ofthe trial court, and a discretionary act or ruling

under review is presumptively correct, the burden being on the party seeking

reversal to demonstrate an abuse of discretion ... [A]buse of discretion occurs

where a ruling is based on an error of law, or, where based on factual conclusions,

is without evidentiary support.

Appeal Decision 2610 (BENNETT) (quoting 5 Am. Jur. 2d Appellate Review § 695 (1997».

3
Given this standard ofreview and the fact that the Coast Guard's appeal does not allege

that the ALl's factual conclusions were without evidentiary support, the inquiry on appeal

becomes whether the presiding ALl committed an error oflaw in granting Respondent's motion

to dismiss. I conclude that the ALl did, in fact, commit an error oflaw, and thereby abused his

discretion, in granting Respondent's motion to dismiss. Given my conclusion with regard to the

Coast Guard's second basis of appeal, it is unnecessary to consider the other bases of appeal

raised in the Coast Guard's brief.

The ALl began his examination ofthe case by identifying regulations that relate to drug

and alcohol testing, including 46 C.F.R. Part 16,49 C.F.R. Part 40, and 33 C.F.R. Part 95.

[D&O at 4-5] On review, the ALl determined: "The Coast Guard did not allege, nor was there

proofthat Respondent operated a vessel while under the influence of alcohol. Hence, 33 C.F.R.

Part 95 ... is inapplicable." [D&O at n. 3] The ALl further noted: "Because 33 C.F.R. Part 95

is both inapplicable to the facts at bar and because it is silent regarding the means by which a

mariner is selected for alcohol testing, the provisions of 46 C.F.R. § 16.230 provide guidance."

[D&O at 5] The ALl added: "Even IF 49 C.F.R. Part 40 and/or 46 C.F.R. § 16.230 are not

specifically controlling ... they are, in the absence of any guidance from 33 C.F.R. Part 95,

certainly persuasive." (emphasis in original) [D&O at 11] After quoting 46 C.F.R. § 16.230(c),

which requires that selection of crewmembers for random drug testing must be made by a

scientifically valid method, the ALl concluded that "it was incumbent upon the Coast Guard at

the hearing ... to establish an appropriate foundation that either [Higman Marine's] 'dice'

method or the 'website' method met the criteria ofscientific or mathematical validity, free of

human intervention or discretion." [D&O at 10] I do not agree.

The ALl's overestimate ofthe law's requirements is understandable in light ofthe fact

that current alcohol and drug regulations do not parallel one another. 46 C.F.R. § 16.230

mentions and governs only random drug testing, not random alcohol testing. "Alcohol" and

"dangerous drugs" are defined separately in 46 C.F.R. Part 16. The terms are not

interchangeable, and the meaning of "dangerous drug" does not include alcohol. 46 C.F.R.

§ 16.105. The non-applicability of 46 C.F.R. Part 16 is confirmed by the Coast Guard final rule

4
that revised 46 C.F.R. Parts 4,5 and 16 in 2001. In its response to public comments on the

interim rule, the Coast Guard stated: "DOT alcohol testing requirements published in their

December 19,2000, final rule [49 C.F.R. Part 40] do not apply to the maritime industry. The

alcohol testing requirements that the maritime industry must comply with are found in 46 C.F.R.

Subpart 4.06 and 33 C.F.R. Part 95." Chemical Testing, 66 Fed. Reg. 42,964,42,965 (Aug. 16,

2001) (emphasis added). Neither 46 C.F.R. Subpart 4.06 nor 33 C.F.R. Part 95 mandates

procedures for selection of crew members for random alcohol testing, and thus there are no

regulations that govern the maritime industry's selection ofmariners for random alcohol testing.

This absence of governing regulation is at the heart ofthe ALl's error. In his D&O, the

ALl twice acknowledged that 46 C.F.R. Part 16 might not apply to the present situation, but

then, in a search for analogous law to provide "guidance," he seized on 46 C.F.R. Part 16 and

strictly applied it to the facts anyway. [D&O at 10] By strictly applying an inapplicable

regulation, 46 C.F.R. 16.230, the ALJ committed an error oflaw and thereby abused his

discretion.

The ALl attempted to support his application of 46 C.F.R. Part 16 with a line from

Appeal Decision 2659 (DUNCAN), which in turn quoted the Federal Register: "The

acceptability of a particular test required by a marine employer will be established during an

administrative or judicial hearing." Operating a Vessel While Intoxicated, 52 Fed. Reg. 47,526

(Dec. 14, 1987) (quoted in Appeal Decision 2659 (DUNCAN) (emphasis in D&O, at 11)). "In

essence," the ALJ concluded in a footnote, "Duncan creates an ad hoc standard, to be determined

on a case-by-case basis for the admissibility of a given alcohol test." [D&O at n. 5] The ALl

thus relied on DUNCAN as providing him authority to rule on all aspects of administration ofthe

alcohol test.

In Appeal Decision 2659 (DUNCAN), a mariner appealed the ALl's decision against his

mariner credential on the grounds that the technician that administered a breathalyzer test was

merely "trained" to operate the test apparatus rather than "certified" to do so. The mariner

claimed that the Department ofTransportation regulations in 49 C.F.R. Part 40 required that the

technician in question be certified in operation ofthe breathalyzer. On appeal, it was clarified

5
that the regulations in 49 C.F.R. Part 40 govern only testing mariners for dangerous drug use, not

alcohol use, and thus the regulations imposed no such requirement. The case noted that the

Coast Guard had previously addressed this lack ofregulatory specificity in the Final Rule

implementing 33 C.F.R. Part 95, which said:

Section 95.030 now simply states that personal observation of apparent

intoxicated behavior or a chemical test are acceptable as evidence ofintoxication.

. . . The rule does not preclude the use of other evidence at a hearing, nor does it

mandate the use ofthe specified evidence ... The acceptability of a particular test

required by a marine employer will be established during an administrative or

judicial proceeding.

Appeal Decision 2659 (DUNCAN) (quoting Operating a Vessel While Intoxicated, 52 Fed. Reg.

47,526,47,530 (Dec. 14, 1987». Following this excerpt, the decision stated: "Accordingly, in

this case, it was the ALl's responsibility to determine whether the evidence presented, including

evidence involving the administration ofthe chemical test and the qualification ofthe technician,

was sufficient to show that Respondent was 'under the influence of alcohol. '" Appeal Decision

2659 (DUNCAN).

While it is true that DUNCAN allows the ALJ to determine the acceptability of an

alcohol test, the inquiry in DUNCAN is focused not on whether requirements have been

complied with during the administration ofthe test, but rather whether the test and its results

constitute reliable evidence ofintoxication. In this case, the ALJ granted Respondent's motion

to dismiss based on his conclusion that selection ofthe mariner for testing did not comport with

the regulatory requirements for random testing set forth in 46 C.F.R. Part 16. In so doing, the

ALJ focused on whether the selection ofindividuals for testing was random, rather than, as in

DUNCAN, the reliability ofthe alcohol test and its results. Whether the selection ofindividuals

for testing is random does not affect the reliability ofthe test to show intoxication. Accordingly,

the ALJ's reliance on DUNCAN to give himself authority to accept or reject the selection of

individuals for testing was misplaced.

The purpose ofsuspension and revocation proceedings is to promote safety at sea.

46 U.S.C. § 770l(a). See also 46 C.F.R. § 5.5 ("[Suspension and revocation] actions are

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

6
safety at sea.") Granting the motion to dismiss based on inapplicable regulations frustrated the

purpose ofsuspension and revocation proceedings and constituted error. To allow the ALl's

decision in this case to stand would require that the Coast Guard prove that a maritime

employer's selection of individuals for alcohol testing complies with regulations that simply do

not apply to alcohol testing. There might be good policy reasons for such requirements; the ALl

makes this argument in his discussion ofrandomness as a protector ofindividual rights. See

D&O at 5-6. However, suspension and revocation proceedings are not the appropriate place to

impose such requirements on policy grounds. Ifthe Coast Guard were to impose alcohol test

selection requirements that match those ofits drug testing regulations, it would be free to do so

by using standard rulemaking procedures. I decline to endorse imposition ofthis requirement on

the maritime industry absent such regulations.

CONCLUSION

The ALl improperly imposed the inapplicable testing requirements of 46 C.F.R.

§ 16.230(c) on Respondent's employer. His dismissal on that basis constituted reversible error.

ORDER

The ALl's Order, dated November 13, 2009, is reversed and the case is remanded for

proceedings consistent with this opinion.

~ee~,

rfAt>f1, \A~C& -V~

Signed at Washington, D.C. this ?-0~day of~y'"~'2011.

7