... 

UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

U.S. COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

JASON 0. BRUSO 

Respondent 

) 

) DECISION & ORDER 

) 

) Docket Number: 00-0122 

) PA Number: 99000350 

) 

) 

___________________________ ) 

PRELIMINARY STATEMENT 

This adversary hearing was initiated by the U.S. Coast Guard while performing its 

missions to protect lives and properties at sea and on navigable waters, enforce national 

laws and treaties, preserve marine natural resources, and/or promote national security 

interests. 

It was brought pursuant to the legal authority contained in 46 U.S. Code (U.S.C.} 

Chapter 77, including 46 U.S.C. 7701 through 7705; the U.S. Administrative Procedure 

Act, 5 U.S.C. 551 through 559; the U.S. Coast Guard Drug Testing Rules included in 46 

CFR Parts 4, 5 and 16, as amended; the U.S. Department of Transportation Drug Testing 

Rules of 49 CFR Part 40; and the Mandatory Guidelines for Federal Workplace Drug 

Testing Programs, published in 53 Federal Register 11970 on 11 April1998. 

At the signing and service of the "Complaint" upon the captioned Respondent, the 

U.S. Coast Guard was represented by Investigating Officer (IO) Gregory L. Crettol, 

Lieutenant (Junior Grade), at the time stationed at the U.S. Coast Guard Marine Safety 

Office for the ports and region of Port Arthur, Texas, 2875 Jimmy Johnson Boulevard, 

Port Arthur, Texas 77640-2099. 

1 
., 

The "Complaint" dated February 11, 2000 was served upon the Respondent, as 

shown by his signature on the U.S. Postal Domestic Return Receipt Form with a date 

stamp ofFebruary 16, 2000. 

The Respondent was advised in the "Complaint" that The Coast Guard has 

initiated an administrative proceeding against his U.S. Coast Guard license, certificate 

and/or merchant mariner's document (MMD). 

The Coast Guard listed the following jurisdictional allegations: 

1. Respondent's address is as follows: P.O. Box 11, Westwood Drive, Trinity, 

Texas 75862. 

2. Respondent holds the following Coast Guard-issued credential(s): MMD 

Number 458 87 2255. 

3. Respondent acted under the authority of that license, certificate or document, 

on November 26, 1998, by: serving as Tankerman aboard the vessel BUFFALO 251 

(O.N. Dl049870) as required by law or regulation. 

The first factual allegation is entitled- "Misconduct." The Coast Guard proved 

that: 

1. On November 26, 1998, at Houston Fuel Oil Terminal aboard the barge 

BUFFALO 251, the Respondent wrongfully acted by refusing to submit to a postincident drug screen as required by company policy and by disobeying a direct order 

from Mr. Roy Mills (Port Captain/Dispatcher of Buffalo Marine Services) to submit to a 

post-incident drug screen. 

The second factual allegation is entitled- "Violation of Law or Regulation." The 

Coast Guard proved that: 

1. On November 26, 1998, at Houston Fuel Oil Terminal aboard the barge 

BUFFALO 251, the Respondent violated Title 46 Code of Federal Regulations 35.35-35 

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by failing to observe the rate of loading of liquid cargo in bulk to avoid overflow of 

tanks. 

2. This regulation was intended to promote marine safety or protect navigable 

waters. 

Respondent filed his formal "Answer" to the "Complaint," dated February 23, 

2000, in which he admitted all jurisdictional allegations. Respondent denied the 

following numbered paragraphs in the factual allegations and admitted all others: 

Paragraphs 1, 2 and 3 in Misconduct, 46 CPR 5.27. He affirmatively alleged as a defense 

"Other," "Nonfactual accusation." Respondent stated that he wished to be heard on the 

proposed order. 

On April14, 2000, the undersigned Judge received this case file and a hearing 

was scheduled for May 23, 2000. On May 22,2000, the Respondent's Mother, Ms. Jettie 

Bruso, called to request a continuance in the above captioned matter for her son, due to 

his inability to attend the hearing scheduled for May 23, 2000. In light of that fact, an 

"Order of Continuance and Change of Hearing Location" was mailed to the Respondent, 

Respondent's Mother and the Investigating Officer advising that the hearing would be 

held on July 19,2000. Thus the hearing scheduled for July 19,2000 by the Judge was 

held at the Coast Guard Hearing Room, 8876 Gulf Freeway, Houston, Texas. 

In addition, both parties were advised that they were to be present at the hearing 

with all witnesses and/or exhibits. All witness lists and exhibit lists intended to be 

offered for consideration at the hearing must be submitted to the Judge by or before 

fifteen ( 15) calendar days before the hearing. The Respondent did not respond with any 

witness lists or exhibit lists by or before fifteen (15) calendar days before the hearing, but 

the Investigating Officer did. 

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At the hearing, the Judge was present together with the said Investigating Officer 

from the U.S. Coast Guard, but the Respondent was absent, or in absentia. Respondent 

was, therefore, found in default at the hearing. 

As a result of the Respondent's default at the hearing, he was served with a 

"Motion for Default Order" by the Investigating Officer. The Motion was mailed to 

Respondent's last known address, as well as his Mother's last known address. The 

Motion was served upon the Respondent, as shown by his signature on the U.S. Postal 

Domestic Return Receipt Fonn with a date of July 25, 2000. Respondent again defaulted 

by not replying to this Motion. The case is now ripe for decision. 

II 

FINDINGS OF FACT BASED UPON THE ENTIRE 

RECORD CONSIDERED AS A WHOLE 

1. It has been established by the Respondent's two defaults, at the hearing and by 

the "Motion for Default Order," and by the documents and evidence produced by the 

Investigating Officers, that the Respondent is in default and, therefore, all jurisdictional 

allegations and factual allegations are found proved by default. 

2. It is found that the Coast Guard had properly initiated an administrative 

proceeding against the captioned Respondent's license and/or merchant mariner's 

document (MMD) under the statutory authority of 46 U.S. Code 7703 when they alleged 

"Misconduct," with the regulatory authority at 46 CFR Part 5.27, and "Violation of Law 

or Regulation," with the regulatory authority at 46 CFR Part 5.33. 

3. The Coast Guard established that Respondent's last known address was as 

listed in the Complaint as P.O. Box 11, Trinity, Texas 75862. 

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4. The Respondent holds the following Coast Guard-issued credentials: U.S. 

Merchant Mariner's Document Number 458872255. 

5. Factual allegations in the Complaint: the Coast Guard did prove that: On 

November 26, 1998, at Houston Fuel Oil Terminal aboard the barge BUFFALO 251, the 

Respondent wrongfully acted by refusing to submit to a post-incident drug screen as 

required by company policy and by disobeying a direct order from Mr. Roy Mills (Port 

Captain/Dispatcher of Buffalo Marine Services) to submit to a post-incident drug screen. 

The Coast Guard proved that: On November 26, 1998, at Houston Fuel Oil Tenninal 

aboard the barge BUFFALO 251, the Respondent violated Title 46 Code of Federal 

Regulations 35.35-35 by failing to observe the rate ofloading ofliquid cargo in bulk to 

avoid overflow of tanks. 

III 

ULTIMATE FINDINGS 

The "Complaint" and its supporting allegations and paragraphs are found proved 

by a preponderance of the reliable, probative and substantial evidence and also by default 

by the Respondent, both at the hearing and after the "Motion for Default Order" 

following the hearing. The "Complaint" proved Respondent's "Misconduct" and 

"Violation of Law or Regulation" under 46 U.S. Code Section 7703. The supporting 

allegations in the "Complaint" above are found proved. 

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IV 

CONCLUSIONS OF LAW 

1. The U.S. Coast Guard and the Administrative Law Judge have jurisdiction 

over the subject matter of this hearing under the provisions of 46 U.S. Code Chapter 77, 

including 46 U.S. Code, sections 7701 through 7705; the U.S. Administrative Procedure 

Act, 5 U.S. Code, sections 551 through 559; 46 CFR Parts 4, 5 and 16, as amended, and 

33 CFR Part 20 of the U.S. Coast Guard; and 49 CFR Part 40 of the U.S. Department of 

Transportation. 

2. The supporting jurisdictional and factual allegations of the "Complaint" 

served upon the Respondent are found proved by a preponderance of substantial 

evidence of a reliable and probative character and by Respondent's two defaults, both at 

the hearing and following the "Motion for Default Order" following the hearing. 

3. The "Complaint" of "Misconduct" and "Violation of Law or Regulation" in 

violation of 46 U.S. Code 7703 is found proved by a preponderance of the evidence and 

by default. 

v 

OPINION 

The above Preliminary Statement, Findings ofFact and Conclusions of Law are 

incorporated herein as if set forth in full. 

The "Complaint" in this matter alleged Misconduct. Misconduct is defined in 46 

CFR Part 5 as follows: 

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

Such rules are found in, among other places, statutes, regulations, the common 

law, the general maritime law, a ship's regulation or order, or shipping articles 

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and similar sources. It is an act which is forbidden or a failure to do that which is 

required. 

The captioned Respondent was charged with refusal to submit to a drug test as 

directed by his marine employer. The gravamen of the offense is Respondent's conduct 

in refusing to obey the lawful order his marine employer, as conveyed to him by his the 

Port Captain/Dispatcher of Buffalo Marine Service, Inc., Mr. Roy Mills. 

When Respondent refused on November 26, 1998 to submit to a post-incident 

drug test by refusing to submit a urine sample when requested to do so by his marine 

employer, he was in violation of 46 U.S. Code Chapter 77 and 33 CPR Part 20, as well as 

46 CPR Parts 4, 5 and 16, as amended. 

Conference sworn telephonic testimony has been upheld on appeal. 46 CPR 

5.535(f) Appeal Decision 2538 (SMALLWOOD); 2503 (MOULDS); 2492 (RATH); and 

2476 (BLAKE), aff'd sub.nom., Commandant v. Blake, NTSB Order EM-156 (1989); 

aff'd sub.nom. Blake v. U.S. Department of Transportation (DOT) and NTSB, No. 90-

70013 (9th Cir. 1991). 

Drug testing of employee's urine samples has been upheld by the U.S. Court of 

Appeals for the Ninth Circuit in Bluestein v. Skinner (U.S. DOT Secretary and U.S. 

FAA, 908 F.2d 451 (9th Cir. 1990); Cert. den. by U.S. Supreme Court at 112 L.Ed 2nct 

1042 (1991). Additional U.S. Supreme Court Decisions with similar rulings and 

authority are National Treasury Employees Union v. Van Raab, 109 S.Ct. 1384 (1989); 

Skinner (U.S. DOT Secretary) v. Railway Labor Executives Association, 109 S.Ct. 1402 

(1989). 

Other decisions upholding dmg testing of cetiain employees include American 

Federation of Government Employees v. Skinner (U.S. DOT), 885 F.2d 884 (D.C. Cir. 

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1989); National Federation ofFederal Employees v. Cheney. 884 F.2d 603 (D.C. Cir. 

1989); Thomson v. Marsh, 884 F.2d 113 (4th Cir. 1989); and Harmon v. Thornburgh, 878 

F2d 484, 487-488 (D.C. Cir. 1989). 

The Respondent is advised of the right to appeal in accordance with 33 CFR Part 

20, the relevant part of which is enclosed herein. 

VI 

ORDER 

IT IS ORDERED that the captioned Respondent's U.S. Coast Guard Merchant 

Mariner's Document Number 458872255 issued to Jason Otis Bruso and all other U.S. 

Coast Guard licenses, documents, certificates and authorizations issued to him and still 

valid are hereby REVOKED. If the Coast Guard is not already in possession of the 

Respondent's above referenced License, Respondent is hereby ordered and directed to 

deposit by mail the said License and Documents with the Senior Investigating Officer of 

the U.S. Coast Guard Marine Safety Office, 2875 Jimmy Johnson Boulevard, Port 

Arthur, Texas 77640-2099. This includes all originals and/or duplicates of these licenses 

and documents. 

The procedures following are known as the U.S. Coast Guard's "Administrative 

Clemency Program." These may require three or more years. Procedures are provided 

by which a person, or Respondent, whose U.S. Merchant Mariner's license and/or 

document has been revoked and surrendered, may apply to any Commanding Officer of a 

Marine Safety Office of the U.S. Coast Guard, after an applicable waiting period, for the 

issuance of a new license or document. These rules and conditions are found in 46 CFR 

Subpart L (46 CFR sections 5.901, 5.903 and 5.905) entitled "Issuance ofNew Licenses, 

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Certificates or Documents After Revocation or Surrender" and in the Coast Guard Marine 

Safety Manual for application for clemency by the U.S. Coast Guard's Administrative 

Clemency Review Board. 

'2000 

9 

Administrative Law Judge 

U.S. Coast Guard