UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

VS. 

RANDY MELTON, - .-..% Respondent ~. , . .3 ., 

. . 

Docket Number: 05-0647 ~. . CG Case No. 2550376 I 

.2 

DECISION AND ORDER > 

- 

.I, . . Issued: January 11,2007 - 

vl 

Issued by: Jud~e Thomas E. P. McEUi~ott. Administrative Law Jud~e 

Appearance: 

For the Coast Guard 

Robert W. Foster, Senior Investigating Officer 

BMl Carl Jehle, Investigating Officer 

United States Coast Guard 

Sector Mobile 

Investigations Department 

Building 101, Brookley Complex 

South Broad Street 

Mobile, Alabama 3661 5-1390 

For the Respondent 

Ronnie G. Penton, Esq. 

Law Offices of Ronnie G. Penton 

209 Hoppen Place 

Bogalusa, LA 70427 
I. PRELIMINARY STATEMENT 

The United States Coast Guard ("Coast Guard" or "Agency") initiated this administrative 

action seeking revocation of License Number 10 16 145 issued to Randy Melton ("Respondent"). 

This administrative action was brought pursuant to the legal authority contained in 46 U.S.C. 5 

7703 and its underlying regulations codified at 46 C.F.R. Part 5. 

On or about December 12,2005, the Coast Guard issued and served a Complaint 

charging Respondent Melton with Misconduct, resulting from a failure to appear for a drug test. 

In support of the Complaint, the Coast Guard alleged that on November 30,2005, Respondent 

wrongfully reksed to submit to a required random drug test as ordered to do so by Gulf Coast 

Maritime Consortium. 

On January 2,2006, Respondent andlor his attorney filed an Answer to the Coast Guard's 

Complaint and requested a hearing before an Administrative Law Judge ("ALJ"). More 

specifically, Respondent denied jurisdictional allegation number three, which stated he acted 

under the authority of his license at the time of the events in question. Respondent and 

Respondent's attorney also denied the factual allegations and asserted six (6) affmative 

defenses as follows: 1) lack of notice; 2) violation of due process, substantive and procedural; 3) 

Respondent was not acting under authority of his license, certification or any document at the 

time of the alleged misconduct; 4) Respondent did not commit any act of misconduct; 5) 

Respondent had not violated any law or regulation intended to promote maritime safety or to 

protect the navigable waters; and 6) Commder's compldnt was emr or arbitrary and should 

be dismissed. 

On January 4,2006, this case was assigned to the undersigned judge for a triaI type 

hearing and adjudication. The hearing in tbis matter was convened on August 3,2006 at the U.S. 

2 
District Court in Mobile, Alabama before the Thomas E. P. McElligott, Administrative Law 

Judge of the United States Coast Guard. 

The hearing was conducted in accordance with the U.S. Administrative Procedure Act as 

amended and codified at 5 U.S.C. $5 551-559 and the Coast Guard procedural regulations 

located at 33 C.F.R. Part 20. Senior Investigating Officer, Robert Foster, and Bosun Mate and 

First Class Petty Officer, Carl Jehl represented the United States Coast Guard at the hearing. 

Respondent Melton also appeared at the hearing defended by Respondent's attorney, Mr. Ronnie 

Penton, of the Law Offices of Ronnie G. Penton. 

The Coast Guard introduced nine (9) exhibits that were admitted into evidence and 

presented testimony from only one witness. While Respondent chose not to introduce any 

original exhibits, he selected to join in offering into evidence the exhibits offered by the Agency. 

The witness and exhibits are listed in Appendix A. 

After carehl review of the entire record in this matter, I fmd the Investigating Officer 

failed to establish or prove by a preponderance of reliable and credible evidence that Respondent 

Melton was properly notified and committed misconduct on November 30,2005 when he did not 

appear for a drug test. 

11. FINDINGS OF FACT 

The Findings of Fact are based on a thorough and careful analysis of all the documentary 

evidence, the testimony of witnesses, and the entire record considered as a whole. 

1. On November 30,2005, Respondent Randy Melton did not appear to give a urine sample 

for a urinalysis after this one witness randomly selected him to take a drug test within 24 

hours of receiving notice. (Enrre Record). 
2. At all relevant times mentioned herein and specifically on or about November 30,2005, 

Respondent Melton was the holder of U.S. Coast Guard License No. 10 16 145. (Agency 

Exhibit I and 2). 

3. In November, 2005, Respondent Melton was a member of the Gulf Coast Maritime 

Consortium ("GCMC" or "Consortium"), which randomly selects mariners for chemical 

testing of dangerous drugs. (Transcript ("Tr. '7 26-28, 39-40, 58). 

4. To become a member of the Consortium, a mariner must fill out an application and take a 

pre-enrollment drug test. If the result of the test is negative for drugs, the mariner is able to 

join the Consortium. (Tr. 25). 

5. At the time of these events, only one person, Ms. Rachael Woodruff owned and operated 

GCMC. (Tr. 21-22). Ms. WooMneither formed nor purchased the Consortium. Rather, 

the business was given to her from her father, Dr. Lany Woodruff, who initially operated 

the Consortium from his main source of business, his chiropractic clinic called the Gulf 

Coast Spinal Center. (Tr. 22, 38, 42, 69-70). 

6. Although the Consortium and the chiropractic clinic were separate businesses at the time of 

these events, they shared the same location and address. (Tr. 41). 

7. Similarly, GCMC is affiliated with another company known as Gulf Coast Diagnostics. (Tr. 

40). Initially, GCMC was past of Gulf Coast Diagnostics and located at the same address. 

. 1-9) Subsequently, GCMC changed its name and became Gulf Coast Diagnostics 

while retaining its location and business address. (Tr, 18- 19, 39). At all relevant times, 

both company names are used interchangeably to describe the same chiropractic clinic and 

consortium. (Entire Record). 
8. As the sole owner or employee at GCMC, Ms. Woodruff s responsibilities included 

overseeing the random selection program, properly notifying mariners who are selected to 

take a drug test, urine collection, and bookkeeping. (Tr. 43, 56-57). 

9. GCMC uses a computer system known as DrugPak to randomly select which mariners 

should appear for drug testing. (Tr. 25-26, 90). After the mariners' names are entered into 

the computer's database, DmgPak randomly selects individuals from a pool. (Tr. 25-26, 

28). 

10. Once a name is selected, Ms. Woodruff is supposed to notie the person by certified mail. 

However, as her own chosen alternative means of notification, she occasionally decides to 

just or merely telephones the individual mariner. (Tr. 28). 

1 I. On October 19,2005, the DrugPak program randomly selected Respondent Melton for a 

drug screen. (Tr. 7-8, 70). On November 8,2005, Ms. Woodruff sent notification to 

Respondent by certified mail, return receipt. (Tr. 70; Agency Exhibit 5). The letter 

informed Respondent that he had been randomly selected and needed to report for drug 

testing within twenty-four hours of receiving the letter. (Tr. 7, 70). 

12. The letter was returned, marked "undeliverable as forwarding address order expired." (Tr. 

8, 70; Agency Exhibit 5). 

13. Members of the Consortium are required to notify the GCMC when their addresses and/or 

phone numbers change. (Tr. 28). 

14. Respondent previously filed his renewal application with GCMC on March 10,2005, in 

which he included his change of address and contact infomation. fTr 26-27, 58-59, 

Agency Exhibit 7). However, Ms. Woodruff had completely failed to enter Respondent's 

current information into the Consortium's database and records. (Tr. 29, 60-61). 

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15. When the certified letter was returned not delivered to Respondent, Ms. Woodruff retrieved 

Respondent's telephone number from her records. The number provided on Respondent's 

renewal application was for his cellular telephone. (Tr. 29-31). 

16. On November 29,2005, Ms. Woodruff telephoned Respondent at approximately 12:30 p.m., 

Central Standard Time. The conversation lasted one minute and thirty-five seconds. (Tr. 

30-32, 77; Agency Exhibit 3). 

17. During the conversation, Ms. Woodruff explained she was calling from GCMC and asked 

Respondent to verify his current address. (Tr. 77). 

18. Ms. Woodruff claims she fully informed Respondent he had been randomly selected to take 

a drug test at her office by 6:00 p.m. the next day. (Tr. 33, 84). 

19. After Respondent verified his contact information, he said "ok" then hung up the phone. 

(Tr. 78). 

20. Ms. Woodruff did not provide the address of where Respondent should take the drug test. 

She assumed Respondent knew the location of her office because he mailed his renewal 

form to the same address every year. (Tr. 84, 93). 

2 1. On November, 30 2005, Respondent Melton failed to appear at Ms. WoodrufPs office to 

take the drug test. (Tr. 34). 

22. On December 2,2005, Ms. Woodruff sent a facsimile to the U.S. Coast Guard, notifying the 

Agency of her claims of Respondent's failure to test. (Tr. 34, 87; Agency Exhibit 4). 

23. Approximately one month later, on December 31,2005, Ms. Woodruff decided and 

abandoned all work associated with the Consortium. According to Ms. Woodruff, wing 

the Consortium was "just a pain in the butt." She further expressed that "it was a pain 

dealing with the federal regulations, nor was it fmancially worth it." (Tr. 45-46, 56-57). 

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24. As a result, Gulf Coast Diagnostics is no longer a legal entity. (Tr. 39). 

111. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. The subject matter of this hearing is properly within the jurisdiction of the United States 

Coast Guard and the Administrative Law Judge in accordance with 46 U.S.C. § 7703; 46 

C.F.R. Part 5, and 33 C.F.R. Part 20. 

2. At all relevant times, Respondent Melton was the holder of U.S. Coast Guard License No. 

1016145. 

3. Coast Guard failed to establish or prove by a preponderance of reliable and credible evidence 

that Respondent Melton acted under the authority of his license at the time of the alleged 

events. 

4. Respondent Melton did not receive proper notice that he was randomly selected to take a 

drug test. 

5. The Investigating Officer failed to establish or prove by a preponderance of reliable and 

credible evidence that Respondent Melton committed misconduct on November 30,2005 

when he failed to submit to a requested drug test. 

N. DISCUSSION 

The purpose of a suspension and revocation proceeding is to protect lives and properties 

at sea against actual and potential danger. 46 U.S.C. § 7701. If it is shown that a holder of a 

license has committed an act of misconduct while acting under the authority of that license, the 

license may be suspended or revoked. 46 U.S.C. $9 7701(a) and (b); 46 U.S.C. tj 

7703(1)(B); and 46 C.F.R. $5.569. 
In suspension and revocation proceedings, the burden of proof is on the Coast Guard to 

establish a prima facie case of misconduct or negligence by a preponderance of the evidence. 

- See 5 U.S.C. 5 556(d); 33 C.F.R. $5 20.701-20.702; see also A~~eal Decision 2485 (Yates). 

Misconduct is defined in 46 C.F.R. 5 5.27 as "human behavior which violates some formal, duly 

established rule," such as those found in the common law, the general maritime law, a ship's 

regulation or order, or shipping articles. It is an act that is forbidden or a failure to do what is 

required. See 46 C.F.R. 5.27. In the absence of such a rule, misconduct is the human behavior 

that a reasonable person would consider to constitute a failure to conform to the standard of 

conduct that is required in light of all the existing facts and circumstances. See Av~eal Decision 

2 1 52 (MAGIE). 

To meet its burden of proof, the Agency must show the act of misconduct occurred while 

Respondent was acting under the authority of his license. 46 U.S.C. 5 7703(1)(B). A person 

is considered to be acting under the authority of the license when he is employed in the service of 

a vessel or when holding the license is required by law, regulation, or by an employer as a 

condition for employment. See 46 C.F.R. 45 5.57(a)(1) and (2). In the alternative, a person is 

considered to be acting under the authority of the license while engaged in official matters 

regarding the license. See 46 C.F.R. 5.57(b). This includes, but is not limited to, such acts as 

applying for renewal of a license, takiig examinations for upgradiig or endorsements, or 

requesting replacement licenses. See 46 C.F.R. 5 5.57(b). 

If none of the above criteria is met, the Coast Guard has no jurisdiction over the offense 

for suspension and revocation proceedings. &g Aopeal Decision 2620 (COX. Moreover, 

jurisdiction must be affirmatively shown and will not be presumed. See Ao~eal Decision 2568 

(SANCHEZ); see also Aoveal Decision 2025 (ARMSTRONG). As stated in numerous 

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Commandant Decisions on Appeal, jurisdiction is critical to the validity of a proceeding and 

when jurisdiction, or proof thereof, is lacking, dismissal is required. &g Aopeal Decision 2656 

(JORDAN); see also Aooeal Decision 2104 (BENSON); Armed Decision 2094 (MILLER); 

A~ueal Decision 2090 (LONGINO). 

In this case, the Coast Guard charged Respondent with misconduct for failing to report to 

take a random drug test on November, 30,2005. However, a fidl review of the record reveals 

insufficient evidence to support a finding that Respondent was properly notified and acted under 

the authority of his license at the time the alleged act occurred. 

In the majority of refusal to test cases, mariners were employed in the service of a vessel 

and their license was required either by law or by their employer as a condition for employment. 

In addition, the order to take a drug test came from their marine or maritime employer or a 

person of higher authority. Ao~eal Decision 2617 (LAMOND)(Appellant was serving 

aboard a vessel as quartermaster when he refused a direct order by his vessel's captain to take a 

chemical test); Aaveal Decision 2615 (DALE)(Appellant was assigned to sail aboard a vessel but 

refused to submit to a random urinalysis ordered by the vessel's captain); Aaaeal Decision 2625 

/ROBERTSON)(Appellant served as operator of a towing vessel that was damaged and in 

danger of sinking. The vice president of the corporation employing Appellant ordered a 

reasonable cause drug test of the vessel's crew, and Appellant refbsed to test); A~oeal Decision 

2641 (JONESj(Appe1lant refused to take a random drug test ordered by the marine corporation 

that chartered all vessels owned and operated by his direct employer). 

In at least one refusal to test case involving a consortiuan, a third party adminiseator was 

used in lieu of an employer to coordinate drug testing services for mariners not employed in the 

service of a vessel. USCG v. Moore, 2003 USCG ALJ 5. In the Moore case, the Coast 

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Guard established the consortium was comprised of self-employed charter boat captains that 

joined together and were subject to U.S. Department of Transportation ("DOT") drug and 

alcohol testing. See Id. In turn, a third party entity, known as MDC, performed drug screens and 

random testing of the consortium members. & Id. Moreover, written notification explaining 

MDC's drug testing policies was provided to the members at meetings, by mail, and copies were 

available at MDC's office. In addition, pamphlets entitled "Random Drug Testing" and "Policy" 

were distributed by MDC to consortium members summarizing the federal rules and regulations 

governing random drug testing requirements. See Moore at 6. 

Here, the Investigating Officer proved only that Respondent holds a license and that 

Respondent was a member of the Consortium GCMC when he was randomly selected to take a 

drug test.' The Agency needed to go further to show that because Respondent was a member of 

the Consortium he was, in turn, subject to random drug testing. In particular, no explanation was 

provided as to what is the purpose of the Consortium, how does it function, does it function 

similarly to an employer who coordinates drug testing services, what duties does it perform, who 

are the members that comprise the Consortium and why do they join. Similarly, the record was 

devoid of details pertaining to Respondent Melton's employment. For example, was he a selfemployed mariner or an ownerloperator of a vessel? Likewise, the record failed to establish 

whether the Consortium provided proper and adequate notification explaining its drug testing 

policy to its members, including the Respondent. Most notably, there is no indication of what 

Respondent expected or agreed to perform by becoming a member of the Consortium. 

1 The Agency did not enter into evidence a copy of Respondent Melton's license. However, Respondent 

admitted to holding a Coast Guard License in his Answer to the Agency Complaint, filed on Januluy 2, 

2006. 
In the present case, the Agency provided testimony from only one witness, Ms. Rachael 

Woodruff, the claimed owner of the Consortium GCMC. Regarding the Consortium's 

membership, Ms. Woodruff explained that to become a member, a mariner simply needs to fill 

out an application and take a pre-enrollment drug test. If the test is negative for drugs, the 

mariner may join the Consortium. (Tr. 25). In an unconnected statement, Ms. Woodruff 

explained that the Consortium uses a computer system known as DrugPak to randomly select 

mariners for drug testing. (Tr. 25-26, 90). As it stands, these facts alone are insufficient to 

establish jurisdiction. 

Even if the Coast Guard successfully proved jurisdiction, the record would not support a 

conclusion that Respondent committed an act of misconduct when he failed to appear for a drug 

test on November 30,2005. Both the material facts and law were highly contested in this case. 

In particular, the following issue was raised and will be addressed in further detail. 

I. Did Respondent Receive Proper Notification that He was Randomly Selected to 

Take a Drug Test. 

For the reasons stated herein, Respondent is not liable for not appearing for a random 

drug test on November 30,2005. 

I. Respondent Melton Did Not Receive Prooer Notice or Notification Erom Ms. 

Woodruff that He was Randomly Selected to Take a Dmcr Test. 

The Agency alleges Respondent Melton failed to appear for a urine test after he was 

directed to do so by Ms. Woodruff and her Gulf Coast Maritime Consortium. In particular, the 

Agency contends that on November 29,2005, Ms. Woodruff telephoned Respondent on his 

cellular phone and told him he had been randomly selected for a drug test. According to the 

Agency, Ms. Woodruff instructed Respondent to come into her office by 6:00 p.m. the next day. 

The Coast Guard argues that Respondent understood these instrvctions and agreed to take the 

I I 
urinalysis. However, Respondent did not appear the following day to provide a urine sample 

and, thereby, failed to test. 

In opposition, Respondent contends he never received proper notification. In his prehearing brief, Respondent confirms he spoke with Ms. Woodruff on November 29,2005.' 

However, he claims the conversation was limited to a confirmation of his current address. 

According to Respondent, Ms. Woodruff neither informed him of the drug test selection, nor 

instructed him to appear for the test the next day. In turn, Respondent argues he did not refuse to 

test in violation of any federal regulation, statute, or rule. 

Required chemical testing of merchant marine personnel for drug use is governed by 46 

C.F.R. Part 16. The rules and regulations are preventative in nature for the purpose of reducing 

or eliminating the use of intoxicants at work and provide a drug-free, safe work environment for 

all mariners. & 46 C.F.R. Ej 16.101(a); see also Asmeal Decision 2542 (DEFORGE). A 

mariner's refusal to submit to a chemical test for dangerous drugs raises serious doubt of the 

individual's ability to perform safely and competently in the future. & Au~eaf Decision 2624 

(DOWNS). 

Refusal to submit to a drug test is defined quite simply as, "you refused to take a drug test 

assetoutin49C.F.R. $40.191." k46C.F.R. Ej 16.105. Intum,examinationof49C.F.R. § 

40.191 provides that refusal to take a drug test occurs when an employee fails to appear for any 

test ajer beingproperly directed to do so by the employer. 49 C.F.R. Ej 40.191 (emphasis 

added). Moreover, this includes the failure of an employee (including an owner-operator) to 

In compliance with the judge's request to file opening statements, Respondent's attorney prescribed 

proposed fa& and legal arguments in an opening statement, filed on July 30,2006. 

12 
appear for a test when properly notified and called by a ConsortiundThird-Party 

Administrator. 49 C.F.R. 5 40.191(a)(l). 

As provided in the applicable rules or regulations, it must be proven that the employer 

provided proper and adequate notice to this mariner before a mariner is liable for failing to 

appear for a drug test. See 49 C.F.R. 5 40.191(a)(l). However, as long as an employer's policy 

with respect to notification is in accord with the applicable DOT and Coast Guard regulations, 

the form and manner of notification may be lee to the employer's discretion. See Appeal 

Decision 2652 (MOORE). 

In this case, the only evidence of notification came from the testimony of Ms. Woodruff, 

the owner of the Consortium GCMC. In particular, Ms. Woodruff testified she initially 

telephoned Respondent Melton to verify his current address. Ms. Woodruff stated that after 

Respondent conf~rmed his contact information, she informed him that he had been randomly 

selected to take a drug test. CTr. 33, 70, 84). Ms. Woodruff additionally testified that she 

instructed Respondent to show up at her office by 6:00 p.m. the next day to provide a urine 

sample. (Tr. 33.84). According to Ms. Woodruff, Respondent replied, "ok" then hung up the 

telephone. (Tr. 33, 78). Although the Coast Guard presented no further evidence detailing the 

conversation between Respondent and Ms. Woodruff, I am not persuaded by Ms. Woodrufts 

testimony. Her credibility leaves much to be desired. 

It is well established that an Administrative Law Judge (ALJ) is the finder of fwts; 

therefore, witness credibility and assessment of evidence is determined by the presiding ALJ. 

- See Avoeal Decision 2633 (WWLLI: see also Appeal Decision 2632 (WHITE); 

Decision 21 16 (BAGGETTI. There is longstanding precedence in these suspension and 

revocation proceedings that the ALJ's findings of fact are upheld unless they are shorn or 

13 
proven to be arbitrary and capricious or clearly erroneous. Auueal Decision 

2227(MANDLYj. The rational for this rule is that the fact-finder can be influenced as informed 

by the demeanor of the witnesses, their tone of voice, body language and other matters that are 

not captured within the pages of a cold hearing transcript or record. Auueal Decision 2616 

(BYNES). In short, the ALJ is free to accept or reject the testimony of any witness so long as his 

final decision is supported by substantial evidence. See Au~eal Decision 1952 (AXEL); see also 

Apueal Decision 1958 NORTON. Upon considering the totality of the evidence, including the 

credibility and demeanor of the witness and her testimony, I am not convinced Respondent 

Melton received proper notification that he was selected to take a drug test. 

While either a letter or a telephone call from the Consortium is an acceptable form of 

notification, there must be adequate proof that notice was properly conveyed. For example, 

when the Consortium notifies a mariner by letter, the letter is typically sent by certified mail, 

return receipt. This method establishes whether or not the letter was successfully delivered and 

received. In turn, the return receipt signed and dated by the person who receives it serves as 

proof of notification. 

In this case, however, Respondent never received the initial letter because Ms. Woodruff 

sent it to Respondent's wrong old address. (Tr. 8, 29, 60-61, 70; Agency Exhibit 5). Instead, the 

letter was returned, marked "undeliverable as forwarding address order expired." (Tr. 8, 70; 

Agency Exhibit 5). When Ms. Woodruff located Respondent's current address in her database, 

she telephoned him to verify the information was correct. However, once Ms. Woodruff 

obtained the correct infomation, she failed to resend the certified letter with its return receipt. 

Rather, Ms. Woodruff claims she simply informed Respondent over the telephone that he was 
selected to take a drug test. (Tr. 33, 84). Yet, there is no creditable and substantial evidence in 

the record of what information was actually conveyed to Respondent. 

The only clear evidence in the record is that Ms. Woodruff telephoned Respondent's 

cellular phone on November 29,2005 and that the conversation lasted one minute and thirty-five 

seconds. While Respondent may have verified his current address, this does not indicate whether 

additional information regarding a drug test was adequately conveyed. Similarly, even if 1 find 

that Respondent replied, "ok" at the end of the conversation, it is not evident as to what 

Respondent was referring. For example, was it an agreement to test or was it an 

acknowledgement that the conversation was over? 

Moreover, it is not enough that Ms. Woodruff claims she clearly heard and understood 

Respondent on her end of the telephone. The reception experienced by a person at one end of a 

telephone line is not sufficient proof that communication was successfully conveyed to the other 

person on the other end. This is particularly true in light of the fact that two people engaged in a 

telephone conversation are in different locations and their individual reception may be effected 

differently by weather conditions, electrical interference, and/or even background noise. 

Furthermore, the lack of details conveyed by Ms. Woodruff to Respondent regarding the 

exact location and name of the facility providing the drug test is questionable. More specifically, 

Ms. Woodruff admitted she did not provide a specific address or location. Rather, Ms. Woodruff 

simply told Respondent to "show up at her office by 6:00 p.m. the next day." (Tr 83-84, 94). 

According to Ms. WooM, '"f Respondent had a question, then he needed to ask." (Tr 84). 

Ms. WoodrufTs curt instructions are unsettling in light of the fact that the Consortiwn operated 

out of her father's chiropractic clinic and only recently changed its name &om Gulf Coast 

Maritime Consortium to Gulf Coast Diagnostics. JTr. 18-19, 39, 40-41). In turn, Ms. Woohffs 

15 
testimony that Respondent did not ask any questions when told to appear for a drug test is 

suspect. 

Finally, it is important to note that the events in this case initiated with Ms. Woodruff s 

failure to send the certified letter with a return receipt to the Respondent's correct address. In 

fact, there are numerous examples of Ms. Woodruff s indifference to carefully and properly 

completing her duties as the Consortium's administrator with competence and accuracy. Of 

particular concern is Ms. Woodruffs negligence in updating her database with the Consortium 

members' current addresses. Although Respondent included a change of address on his renewal 

application form, Ms. Woodruff left the application in a stack of papers for over eight months. 

(Tr. 26-27, 58-61; Agency Exhibit 7). As a direct result, she mailed the certified letter to 

Respondent's old wrong address. Consequently, Respondent never received the initial written 

notification that he was randomly selected by her to take a drug test. Any follow-up effort by 

Ms. Woodruff to notify Respondent should have contained the equivalent level of proof such as a 

certified letter, return receipt. Such efforts might include recording andlor transcribing the 

telephone conversation or mailing a supplemental certified letter, with return receipt, to 

Respondent's current address. 

Suffice-it-to-say, I find the credibility of this witness minimal. More importantly, Ms. 

Woodruff s testimony is inadequate to establish whether the necessary information and notice 

was conveyed to Respondent in the one minute, thirty-five second telephone conversation. 

Without proper notification, Respondent Metton did not ilnlawfuily fail to take a random hg 

test. 

V, CONCLUSION 
Based on the record developed in this proceeding, the Agency failed to prove by a 

preponderance of reliable and credible evidence that Respondent wrongfully refused to submit to 

a required random drug test as improperly ordered to do by Ms. Woodruff of the Gulf Coast 

Maritime Consortium. 

WHEREFORE, 

VI. ORDER 

IT IS HEREBY ORDERED that the Complaint against Respondent Randy Melton is 

DISMISSED with preclusion against renewal. 

Please be advised that any party has the right to appeal, the procedure for which is set 

forth in 33 C.F.R. $$20.1001-20.1003. (Attachment A). 

ld Dated this // day of January, 2007 

Houston, Texas 

THOMAS E. P. MCELLIGO'IT 

Administrative Law Judge 

U.S. Coast Guard 
APPENDIX A 

UNITED STATES COAST GUARD v. RANDY MELTON 

DOCKET NUMBER: 05-0647 

CASE NUMBER: 2548968 

LIST OF WITNESSES AND EXHIBITS 

INVESTIGATING OFFICER (10) EXHIBITS 

1. Complaint issued against Respondent Randy Melton (introduced and accepted as I0 

Exhibit 1) 

2. Answer filed by Respondent Randy Melton (itroduced and accepted as I0 

Exhibit 2) 

3. Telephone records from Network Telephone (ioduced and accepted as I0 

Exhibit 3) 

4. Letter from Gulf Coast Maritime Consortium to Senior Investigating Officer, dated 

December 2,2005 (mtroduced and accepted as I0 Exhibit 4) 

5. Letter from Gulf Coast Maritime Consortium to Randy Melton, dated November 8, 

2005 (itroduced and accepted as I0 Exhibit 5) 

6. Mailiig envelope marked "undeliverable as addressed forwmdiig order expired" 

(itroduced and accepted as I0 Exhibit 5C) 

7. Hand written note detailing conversation with Randy Melton (introduced and 

accepted as I0 Exhibit 6) 

8. 2005 Renewal form from Randy Melton (ioduced and accepted as I0 Exhibit 7) 

9. Maritime Consortium Program Handbook (introduced and accepted as I0 

Exhibit 8) 

mXSTIGATING OFFICER (10) WIThXSS LIST 

1. Ms. Rachael Woodruff 
TITLE 33 - NAVIGATION AND NAVIGABLE WATERS 

CODE OF FEDERAL REGULATIONS 

PART 20 RmES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR 

FORMAL ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD 

SUBPART J - APPEALS 

33 CIFR 5 20.1001 General. 

(a) Any party may appeal the s decision by filing a notice of appeal. The party shall 

file the notice with the U. S. Coast Guard Administrative Law Judge Docketing 

Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, 

MD 21201-4022. The party shall file the notice 30 days or less after issuance of the 

decision, and shall serve a copy of it on the other party and each interested person. 

(b) No party may appeal except on the following issues: 

(1) Whether each finding of fact is supported by substantial evidence. 

(2) Whether each wnclusion of law accords with applicable law, precedent, and 

public policy. 

(3) Whether the ALJ abused his or her discretion. 

(4) The ALSs denial of a motion for disqualification. 

(c) No interested person may appeal a summary decision except on the issue that no 

hearing was held or that in the issuance of the decision the ALJ did not consider 

evidence that that person would have presented. 

(d) The appeal must follow the procedural requirements of this subpart. 

33 CFR § 20.1002 Records on appeal, 

(a) The record of the proceeding constitutes the record for decision on appeal. 

(b) If the respondent requests a copy of the transcript of the hearing as part of the record 

of proceeding, then,-- 

(1) If the hearing was recorded at Federal expense, the Coast Guard will provide the 

transcript on payment of the fees prescribed in 49 CFR 7.45; but, 

(2) If the hearing was recorded by a Federal contractor, the contractor will provide 

the transcript on the terms prescribed in 49 CFR 7.45. 
33 CFR 9 20.1003 Procedures for appeal. 

(a) Each party appealing the ALJ's decision or ruling shall file an appellate brief 

with the Commandant at the following address: U.S. Coast Guard 

Administrative Law Judge Docketing Center; Attention: Hearing Docket Clerk; 

Room 412; 40 S. Gay Street; Baltimore, MD 21201-4022, and shall serve a 

copy of the brief on every other party. 

(1) The appellate brief must set forth the appellant's specific objections to the 

decision or ruling. The brief must set forth, in detail, the-- 

(i) Basis for the appeal; 

(ii) Reasons supporting the appeal; and 

(iii) Relief requested in the appeal. 

(2) When the appellant relies on material contained in the record, the appellate 

brief must specifically refer to the pertinent paris of the record. 

(3) The appellate brief must reach the Docketing Center 60 days or less after 

service of the ALJ's decision. Unless filed within this time, or within another 

time period authorized in writing by the Docketing Center, the brief will be 

untimely. 

(b) Any party may file a reply brief with the Docketing Center 35 days or less afier 

service of the appellate brief. Each such party shall serve a copy on every other 

party. If the party filing the reply brief relies on evidence contained in the 

record for the appeal, that brief must specifically refer to the pertinent parts of 

the record. 

(c) No party may file more than one appellate brief or reply brief, unless-- 

(1) The party has petitioned the Commandant in writing; and 

(2) The Commandant has granted leave to file an added brief, in which event the 

Commandant will allow a reasonable time for the party to file that brief. 

(d) The Commandant may accept an amicus curiae brief from any person in an 

appeal of an ALJ's decision.