WITED STATES OF AMERIC.4 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

VS. 

MICHAEL D. WILSON 

Respondent. 

Docket Number: CG S&R 07-0221 

CG Case No. 2909338 

DECISION AND ORDER 

- Issued: December 12,2007 

Presidiq: Honorable Parlen L. McKenna 

Complainant 

Ensign Byron Rios 

Lieutenant Chester K. Warren 

United States Coast Guard 

Sector Mampron Roads 

200 Granby Street 

Norfolk, Virginia 23510-1 888 
PRELIMINARY STATEMENT 

This suspension and revocation proceeding was instituted by the United States Coast 

Guard in the discharge of its duty to promote the safety of life and property at sea. It was 

brought pursuant to the legal authority contained in 46 U.S.C. 8 7701-7705 and was conducted in 

accordance with the procedural requirements of 5 U.S.C. $551-559, Part 5 of Title 46 and Part 

20 Title 33 of the Code of Federal Regulations (C.F.R.). 

The healing in this matter was held in Roanoke, Virginia. Ensign Byron Rios and LT 

Chester K. Warren, USCG duly authorized Investigating Officers of Marine Safety Office, 

United States Coast Guard, appeared For and represented the Coast Guard. Respondent appeared 

personally and elected to represent himself. A record of the hearing was made by Toby Feldman 

Incorporate, a certified court-reporting firm. A list of the witnesses who testified and the 

exhibits entered into evidence are set forth in Attachment A. 

On April 17,2007, the Coast Guard issued a Complaint charging Respondent with 

violating 46 U.S.C. $ 7704 (c) alleging one (1) count of Use of or Addiction to the Use of 

Dangerous Drugs. Specifically, the Coast Guard alleges Respondent took a random drug test on 

March 22,2007; and that the urine specimen subsequently tested positive for cocaine metabolite. 

Respondent filed an Answer on May 7, 2007, wherein he admitted all jurisdictional allegations 

and denied all factual allegations contained in the Complaint. 

On May 9, 2007, the Chief Administrative Law Judge referred this case to the 

undersigned for hearing and disposition. A hearing was scheduled and convened on September 

5,2007, in Roanoke, Virginia. The Coast Guard Investigating Officer introduced into evidence 

the testimony of two (2) witnesses and six (6) exhibits. Respondent introduced into evidence his 

own testimony, and the testimony of two (2) other witnesses. Respondent did not proffer any 

documentitly evidence for the record. 
Afier careful revicw of the entirc record, including witness testimony, applicable statutes, 

regulations, and case law, the allegation of Use of or Addiction to the Use of Dangerous Drugs in 

violation of 46 U.S.C. 7704(c) is found not proved. 

FINDINGS OF FACT 

The following Findings of Fact and Conclusions of Law are prepared upon my 

observation of the appearance and demeanor of the witnesses who testified at the hearing and 

upon my analysis of the entire record, arguments of the parties, and applicable regulations, 

statutes, and case law. Each exhibit entered, although perhaps not specifically mentioned in this 

decision, has been carefully reviewed and given thoughtful consideration.' 

1. At all relevant times, Respondent was the holder of a MML issued by the United 

States Coast Guard. (See TR. at 19-20,60; See 10 Ex. I).' 

2. On March 22, 2007, Respondent participated in random chemical drug test at Carilion 

Occupational Medicine in Roanoke, Virginia. & TR. at 8-9; I0 Ex. 2). 

3. Cynthia Diane Ward, a medical assistant who works for Carilion Occupational 

Medicine, collected the urine sample from Respondent for the purposes of performing 

a DOT urinalysis drug test. (& TR. at 12- 19; 10 Ex. 2). 

4. Ms. Ward has perfonned urinalysis specimen collection, conducted in accordance 

with DOT regulations, for six (6) years. & TR. at 13-14). 

5. Ms. Ward followed collection procedures in accordance with DOT standards. (& 

TR. at 14-27; 10 Ex. 2). Procedures Ms. Ward followed include, but are not 

limited to, the following: 

' Neiti~er party subnritted briefs, proposed findings of fact or proposed conclusions of law. 

"irations referencing Lhe transcript are as tbllows: Transcript followed by the page number (Tr. at - ); Citntio~~s 

referring ro Agency ExlGbits are as follows: investigation Officer followed by the exhibit r~umber (See IO Ex. -). 

3 
a. Tile collector verified the identity of Respondent, the specimen provider. (See 

TR. at 15). 

b. Following collection, Ms. Ward checked the temperature of Respondent's 

specimen and ensured the sample measured between ninety (90) and onehundred (1 00) degees Fahrenheit. (SF, TR. at 24-25; & I0 Ex. 2). 

c. The collector placed the specimen into two (2) separate specimen bottles, 

referred to as a "split specimen." (& TR. at 22-23; 10 Ex. 2). 

d. The collector sealed the specimen bottles in Respondent's presence. (& TR. 

at 17-1 8; 10 Ex. 2). 

e. Respondent initialed the seal on each specimen bottle. (See TR. at 15,22-24). 

f. Ms. Ward completed the Custody and Control Fonn with Respondent's 

information. (& TR. at 16-1 7; I0 Ex. 2). 

g. Respondent signed the Custody and Control Fonn. (& TR. at 26-27; See I0 

Ex. 2). 

h. Each Custody and Control Form contains a specimen identification umber. 

(See TR. at 16- 17; & I0 Ex. 2). 

i. Carilion Occupational Medicine sent Respondent's split specimen to Quest 

Diagnostics for testing. (See TR. at 19,38-39; & 10 Ex. 2, 3, 5). 

6. Ms. Wards testimony is found to be credible. 

7. Quest Diagnostics received Respondent's urine specimen via a Quest courier on 

March 23,2007. (See TR. at 9, 19; 10 Ex. 5). The urine specimen amved with 

the specimen seal intact. (& TR. at 40). 

8. Quest Diagnostic tested Respondent's urine in accordance with DOT guidelines. & 

TR. at 40-42; & 10 Ex. 5). 
9. The chain of custody for Respondent's specimen was intact. (Sce TR. at 40). 

10. The initial drug screening of Respondent's urine detected the presence of the cocaine 

metabolite. (S& TR. at 42; I0 Ex. 5). 

11. A confirmatory test verified the presence of cocaine metabolite, which measured 

1738 nanograms per milliliter which is over the cut-off level of 150 ngml. (& TR. 

at 46-47; I0 Ex. 5). 

12. Confirmatory testing was performed by gas chromatography mass spectroscopy. (See 

TR. at 41). 

13. Quest Diagnostic reported the positive drug test to a medical review officer (MRO). 

(See TR. at 51). 

14. Ms. Susan P. Mills testified in this proceeding as the forensic toxicologist for Quest 

Diagnostics. Ms. Mills testified that she is the responsible person under the federal 

guidelines at Quest for workplace drug testing (& TR. at 46). 

15. Ms. Mills testified that Respondent's sample was tested in accordance with all federal 

regulations and that both the initial and confirmation tests were positive for cocaine 

metabolite (& TR. at 52-66). 

16. While the test results are linear to the cutoff level, the record does not disclose what 

significance is attached to the fact that the test results are over ten (10) times above 

the cut-off level (See TR. at 66). 

17. A positive test result of 1738.81 is not a borderline positive (& TR. at 65). 

18. The testimony of Ms. Susan P. Mills is found to be credible. 

19. Dr. James M. Vanderploeg, was the certified Medical Review Officer (MRO) in this 

case who verified Respondent's positive drug test. (See TR. at 50-51; See 10 Ex. 6 at 

9-10). 
20. Dr. Vanderploeg is employed by Interactive Medical Connections and has worked as 

an approved MRO since 1989. (&e 10 Ex. 6 at 9). 

21. Dr. Vanderploeg interviewed Respondent on March 30,2007, to determine if a 

legitimate medical explanation existed for the positive drug test. (ke I0 Ex. 6 at 11). 

22. Respondent denied using cocaine and did not know how he could have tested 

positive. Thus, Respondent did not supply Dr. Vanderploeg with a legitimate medical 

reason for the positive test result. (& I0 Ex. 6 at 11-12). 

23. Dr. Vanderploeg infonned Respondent ofhis right to have the split sample tested. 

(@ TO Ex. 6 at 1 I). 

24. Respondent informed Dr. Vanderploeg that he wished to have the split sample tested. 

(H.). 

25. Respondent's split sample was sent to the laboratory at Veterans' Hospital in 

Minneapolis. (See 10 Ex. 6 at 12-15), That laboratory conf rmed the presence of 

cocaine metabolite in Respondent's split sample. (a,). 

26. Dr. Vanderploeg was not present at the September 5,2007 hearing. However, his 

depositioti was taken on August 3 1,2007 and it was admitted into evidence without 

objection as 10 Exhibit 6. Since-the undersigned was not present at the deposition, no 

credibility determination can be made. 

27. Respondent is a 58 year old illan who holds a United States Coast Guard issued 

merchant mariner license beruing serial number 994928 (& TR. at 82 and LO. Ex. 

1). 

28. Respondent utilizes said license to serve as a fishing guide on Smith Mountain Lake 

(&'TR. at 81). 
29. Respondent has never had a boating violation or accident; has a clean driving record; 

has a fanily that includes a wife, a son who works for the Federal Justice 

Department, a daughter who is in a doctorial program at Virginia Tech, and three (3) 

grandchildren. Respondent has been a member of I-Iuddleston United Methodist 

Church for the lasl42 years (& TR. at 81-82). 

30. Respondent does not smoke or use hard liquor ('f& TR. at 82). 

3 1. Respondent specifically denies ever knowingly using cocaine (& TR. at 82). 

32. Respondent is in poor physical health; he is a diabetic and has high blood pressure; he 

has coronary artcry disease; and he has bad a heart attack(s) in the past (f& TR. at 

40-41). 

33. Respondent is in a high risk categoly for another heart attack and death. Respondent 

is a male who is over 50; and he has a strong family history of diabetes; hypertension 

and coronary disease associated with blockages with cholesterol deposition (See TR. 

at 42-43). 

34. Dr. Gaylord testified that it would be extremely imprudent for Respondent to use 

cocaine given liis medical history; that Respondent islwas aware of his health risks; 

that using a stimulant such as cocaine could cause his heart to spasm in thc coronary 

vessel which is 80 percent blocked; that such a spasm would prevent blood flow and 

cause a heart attach; and that the usage of a stimulant such as cocaine would place 

Respondent at an increased nsk of death. (& TR. at 42-43). 

35. Respondent's Itas successfully managed his hidl blood pressure. (& TR. at 41-42). 

36. Respondent received treatment for concerns about coronary disease during March 

2007. (& TR. at 4 1-42). No spikes in his blood pressure were noted during this 

time frame. (@.). 
37. Cocaine is a stimulant dvug & TR. at 42-43). 

38. Dr. Gaylord's lay and medical expert testimony is found to be very credible. 

39. Respondent's testimony is found to be very credible. 

40. Respondent's urine specimen tested positive for cocaine metabolite. Respondent 

does not dispute the collection process; the chain of custody, or the fact that the 

laboratory test results were positive. Respondent does dispute that he ever knowingly 

used cocaine but cannot explain if or how the drug got into his body. 

41. Given Respondent's serious coronary artery disease, high blood pressure, and past 

heart attack(s), it would not be reasonable to conclude that Respondent would risk his 

life by using cocaine. This finding is especially true given the care with which 

Respondent manages his medical conditions. 

DISCUSSION 

The purpose of Coast Guard suspension and revocation proceedings is to promote safety 

at sea. 46 U.S.C. $ 7701(a). In furtherance of this goal, Administrative Law Judges have the 

duty to revoke a mercha~~t mariner license for violations arising under 46 U.S.C. $7704. &G. 46 

CFR 5.19(b). Under Coast Guard procedural rules and regulations, the Coast Guard bears the 

- burden of proof and shall prove the violations by a preponderance of the evidence. 33 CFR 

20.701,20.702(a). In this case, the Coast Guard seeks to prove Respondent used a dangerous 

drug and revoke his Merchant Mariner's License. 

a) .Jurisdiction 

Jurisdiction is a question of fact and must be determined before the substantive issues of 

the case are decided. Appeal Decision 2620 (COX) (2001). When the Coast Guard charges a 

respondent with Use of or Addiction to Dangerous Drugs, jutisdiction is estabiislied solely upon 
a showing that Respondent is the holder of a license, certificate of registry, or mercl~ant 

mariner's document.' Appeal Decision 2560 (CLIFTON) (1995). In this case, since the 

allegations of drug use arose while Respondent held a mcrchant mariner license, jurisdiction 

exists. (a TR. at 19-20,60; 10 Ex. I). Furthermore, Respondent admits to all 

jurisdictional allegations in his Answer. 

b) Applicable Law 

Marine employers shall establish progran~s for the testing of dangerous drugs, on a 

random basis, for employees who serve as crewmembers. 46 CFR 16.230. A mariner's 

Coast Guard issued credential is subject to revocation upon proof, to include failing a random 

drug test, that the mariner is a user of or addicted to a dangerous drug, unless satisfactory proof 

of cure is established. 46 U.S.C. 7704(c); Appeal Decision 2634 JBARRETTA) (2002). 

In these proceedings, the Coast Guard bears the burden of proof and shall prove the 

allegations by a preponderance of the evidence. 33 CFR 20.701,20.702(a). In a drug case based 

solely upon urinalysis test results, a prima facie case of use ofa dangerous drug is shown when 

three elernelits are proved: (I) that the respondent was the person who was tested for dangerous 

drugs, (2) that the respondent failed the test, and (3) that the test was conducted in accordance 

with 46 C.F.R. Part 16." Appeal Decision 2603 (HACKSTAFF) (1 998). If the Coast Guard 

establishes apr.inza,'cie case, a presumption of use of a dangerous drug arises.' The burden 

then shifts to the respondent to producc persuasive evidence to rebut the presumption. See 

Appeal Decisions No. 2584 (SHAKESPEARE), No. 2379 (m, No. 2589 (MEYER), No. 

- 2592 (m and No. 2603 (HACKST-). The presumption imposes on the party against 

3 "If it is sho~v11 that a holder [oCa license, certificate of registry, or merchant mariner's document] has been a user 

of, or addicted to, a dangerous drug, the license: certificate ofregisuy, or merchant mariner's document shall be 

revoked unless tl~e holder pro\,idcs satisfactory proof that the holder is cured." 46 U.S.C. 7704(c). 
whom it lies, the burden of going forward with evidence to rehut or meet the presumption. 33 

C.F.R. 5 20.703(a). The presumption does not shift the ultimate burden of proof which remains 

with the Coast Guard. 33 C.F.R. 5 20.703(b). In evaluating the evidence presented at the 

hearing, the trial judge is in the best position to weigh the testimony of witnesses and assess the 

credibility of evidence. See Appeal Decisions No. 2584 (SHAKESPEARE), No. 2421 

(RADER), No. 2319 (PAVELIC), No. 2589 (MEYER). No. 2592 (MASON), and No. 2598 

LCATTON). Moreover, the trial judge has broad discretion in making determinations regarding 

the credibility of witnesses and in resolving inconsistencies in evidence. See Appeal Decisions 

No. 2560 (CLIFTON), No. 2519 (JEPSON), No. 2516 [ESTRADA), No. 2503 (MOULDS). NO. 

-- 2492 (RATH), No. 2598 (CATTON), No. 2382 (NILSEN), No. 2365 (EASTMAN), No. 2302 

(FRAPPIER), and No. 2290 IDUGGINS). Finally, the Administrative Law Judge'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 No. 2584 (SHAKESPEARE), 

No. 2570 (HARRIS), aft'd NTSB Order No. EM-182, No. 2390 (PURSER), No. 2592 

(MASON), and No. 2560 (CLIFTON). 

c) Pri~t~a Facie Case Established 

In this case, the record establishes that Respondent was the person who was tested for 

dangerous drugs; that the collector established proof of the identity of the person providing the 

specimen; that there was a link between Respondent and the sample number or DN~ Testing 

Custody aid Control number which is assigned to the sample; and that the chain of custody was 

maintained throughout the collection process up to the amval at the laboratory testing facility. 

(% 46 C.F.R. 5 16.350); (Also see TR. at 15-36; and 1.0. Ex. 2). 

4 46 C.F.R. 9: 16.201(b) provides that if "an individual fails a chen~icai test for dangerous dmgs under this part, the 

individual will be presumed to be a user of dangerous drugs." 

10 
Respondent's urine specitnen was tested at Quest Diagnostics in Nomstown, 

Pennsylvania. Once again, the chain of custody was determined to be intact. Initial testing 

detected the presence of tlie cocaine nletabolite in Respondent's urine specimen. (See TR. at 42; 

- See I0 Ex. 5). A confirmatory test verified the presence of cocaine metabolite, which measured 

above the regulated minimum positive of 150 nanograms per milliliter. (& TR. at 46-47; See 

I0 Ex. 5); see 49 CFR 40.87. 

Dr. Vanderploeg, the Medical Review Officer (MRO), received and verified the 

laboratory's initial two (2) test results. (See TR. at 50-51; I0 Ex. 6 at 9-10). Dr. 

Vandetploeg interviewed Respondent in an effort to determine if a legitimate medical 

explanation existed for Respondent's positive drug test. (a I0 Ex. 6 at 1 1). Dr. Vanderploeg 

failed to discover a satisfactory medical explanation for Respondent's positive drug test. (u.). 

Following the verification of Respondent's positive drug test, Dr. Vanderploeg informed 

Respondent of his right to have the split sample tested. (S& I0 Ex. 6 at 1 I; See 49 CFR 40.153) 

Respondent requested the split sample be tested and the sample was sent to a laboratory at 

Veterans' Hospital in ~innea~olis.' (See I0 Ex. 4,5, & 6 at 12-15). Veterans' Hospital in 

Mintleapolis confirmed the presence of the cocaine metabolite in Respondent's split sample. 

(g.). Given all the above, 1 find that the Coast Guard established apiima facie case of 

dangerous drug use. 

d) Respoudent Rebutted the Coast Guard's prima facie case 

\#en aprinza,facie case is proven, the burden of going forward with evidence is shifted 

to the respondent. Appeal Decision 2603 (HACKSTAFF) (I 998). The respondent then needs to 

5 Respondent does not remember requesting a test of the split sample. (See I0 Ex. 6 at 14-15). Respondent states. 

"to the bcst of my knowledge I never asked to have my split sample tested." a.). However, Dr. Vanderploeg 

testified that Respondent did request that tl~e split sample be tested and Dr. Vanderploeg's notes indicate that 

Respondent requested a split sample test. (See 10 Ex. 4,6 at 14-15). Dr. Vanderploeg's testimony is deemed 

credible. 
establish. by a preponderance of the evidence, that he is not a user of dangerous drugs. @. It is 

the responsibility of the judge to determine what evidence is reliable and probable and to 

determine how much weight particular evidence is assigned. a,; Aopeal Decision 2382 

NILSEN) (1 985). 

In this case, Respondent does not rebut the evidence submitted by the Coast Guard. 

Respondent makes no argument and produces no evidence that the urine specimen collection or 

testing procedures were fla~ed.~ Instead, Respondent attempts to rebut the Coast Guard case 

through the use of character evidence and medical testimony. Generally, the sole use of 

character evidence would not be persuasive enough to rebut aprima facie case of drug use. 

However, in this case, Respondent's use of character evidence and medical testimony provide 

very compelling evidence which rebuts the Coast Guard prima facie case. 

First, Respondent establishes his good character by testifying on his own behalf. 

Respondent is fifty-eight (58) years old and has worked as a fishing guide for forty (40) years. 

(SeeTR. at 60-61). He has lived his entire life in Bedford County, Virginia and has been very 

active in the community, including being a member of Huddleston United Methodist Church for 

forty-two (42) years, a basketball coach, and a school teacher. (a.). Respondent has never been 

charged with a boating violation, is not a smoker, and does not drink hard liquor. (a.). 

Furthe~~nore, Respondent testified that he has never used cocaine. (Id.). The undersigned tinds 

Respondent's testimony, when combined with his demeanor and appearance, both compelling 

and credible. Indeed, in looking at Respondent at the hearing, I could not help but compare 

6 Respondent briefly challenge one aspect of the collection process. Kespondent could not remenlber it' the urine 

specimen collector cl~eckcd the temperature orthe specimen and asked the collector if she checked the temperature. 

(Tr. at 24-27). Respondent stated, "I'm not disputing the correctness of it just docunleating the procedurc policy and 

the way it ivas done." (Tr. at 26). The collector produccd a document, signed by Respondent on ?he day of the 

collection, establishing that tile temperahie of the specimen was ninety-four (94) degrees. (Tr. at 24-27). 

12 
Respondent with an older version of Andy Griffith in Mayberry. Thus, the accusation of dlug 

use by this Inan clearly does not appear appropriate. 

In addition to Respondent's own testimony, Mr. Lacey Putney testified on Respondent's 

behalf7 (& TR. at 54-56). Mr. Putney is a delegate to the Virginia House of Delegates and has 

served in the House for forty-six (46) years. TR. at 55-56). Mr. Putney has known 

Respondent for over forty-five (45) years. (a TR. at 55). For forty (40) years, Respondent 

lived in Mr. Putney legislative district. (Id.). Mr. Putney is very familiar with Respondent's 

reputation and testified that Respondent is "a man of truthfulness and veracity and also as a law 

abiding citizen." (u.). Mr. Putney was shocked to hear Respondent was charged with use of a 

dangerous drug. (Id.). 

Finally, Respondent's family physician, Dr. John Gaylord, testified on Respondent's 

behalf. (& TR. at 28-33). Dr. Gaylord has known Respondent since 1989, and is both a fiend 

of Respondent as well as Respondent's physician. (See TR. at 30-31). Dr. Gaylord treats 

patients with drug abuse problems and is familiar with the physical effects cocaine has on a 

persons' appearance and physiologically. (a TR. at 28-33). Such effects include, "wide eyes, 

enlarged pupils, tachycardia or increased heart rate, sweating and . . . elevation of blood 

pressure." (BTR. at 32). Dr. Gaylord testified that he has no reason to think that Respondent 

has ever bee11 on drugs. (& TR. at 30-31). Dr. Gaylord testified that during his interactions 

with Respondent as a. physician and fiiend, Respondent "is always punctual, he's always reliable, 

h[e] is always reasonable, well groomed, no pressured speech, no sweating, no indications to me 

that he would be using illegal drugs". (Id.). 

' The Transcripts spells illis wimess' name as "Lacry Butney." (Tr. at 54). Hoivever, the correct spelling of this 

witness' name is "Lncey Pumey." (Reupondent's Witncss List). 

13 
In addition to Respondent's ouhvard appearance and mannerisms failing to indicate 

illegal drug use, Dr. Gaylord also testified that Respondent's physical health is so bad, that if he 

were to use cocaine, it could kill him. Respondent is a diabetic, has high blood pressure, and has 

coronary artery disease. (See TR. at 31). Dr. Gaylord testified that Respondent does an 

excellent job controlling these health problems and that Respondent understands the risks of 

failing to maintain his health to include suffering a heart attack or death. (& TR. at 3 1-33). 

Using cocaine would be very imprudent for someone with Respondent's medical condition, as it 

would increase Respondent's blood pressure and create spasms in the coronary vessels, therefore 

increasing the risk of death. (& TR. at 32-33). Dr. Gaylord testified that he has never noticed 

any spikes in Respondent's blood pressure, including the time period when Respondent took the 

random drug test. (Id.). The undersigned has taken into consideration that Dr. Gaylord is a 

friend of Respondent, and that by testifying as a physician under oath in this proceeding, he risks 

his medical license if he were to testify falsely. That being said, 1 find Dr. Gaylord's testimony 

to be truthful and highly credible. Moreover, the Coast Guard did not conduct any crossexamination of Dr. Gaylord in an attempt to test his credibility or impeach his testimony. 

As a general rule, a respondent who only presents character testimony will be unable to 

successfblly rebut the Coast Guard'spriniafacie case. However, in this case, Respondent has 

provided highly credible character witnesses corroborated by unconltoverted medical evidence. 

First, a Virginia State delegate who has known Respondent for over forty-five (45) yeas testified 

in favor of Respondent. Ordinarily, politicians still in office would not risk the adverse 

consequences attendant with testifying under oath in court supporting a "drug user". Therefore, 

the very fact that Mr. Putney went out of his way to debunk the allegations of Respondent's drug 

use speaks volumes. In this regard, I find Mr. Putney's testimony was credible and compelling. 
Importantly, sucll character teshmony standlng alone or ln conjunction with 

Respondent's own testimony, under most circumstances would not be sufficient to rebut the 

prin~rr~cie case However, in addition to the above, Dr. Gaylord provided expert medical 

testimony. Being a friend of Respondent cuts both ways with respect to credibility. On one 

hand, Dr. Gaylord hows Respondent well and is able to testify as to the fact that Respondent is 

not a drug user. On the other hand, I have to guard against the testimony being slanted because 

of that friendship. In this case, Dr. Gaylord's testimony, both as a friend of Respondent and as a 

med~cal physician is found to be credible. Indeed, the Coast Guard made no effort to impeach 

the doctor's testimony. The doctor testified that Respondent has never acted in a way that would 

indicate he was a user of dangerous drugs. Furthermore, Dr. Gaylord testified that Respondent 

has successfully managed his high blood pressure and coronary artery disease; and that it would 

not be possible to manage these health conditions if Respondent was a user of cocaine. Indeed, 

Respondent's posltive test results of ten (10) times the initial cutoff level do not correlate with 

his medical condition and Dr. Gaylord's finding that Respondent manages such conditions very 

welLs Therefore, the medical and character testimony of Dr. Gaylord, in conjunction with the 

character testimony of the Virginia State Delegate Putney, Respondent's own testimony, 

Respondent's pbyslcal appearance, and Respondent's standing in the community, clearly tips the 

scales in favor of a finding of charge not proved. Therefore, Respondent has successfully 

rebutted the presumption of drug use. Accordingly, the Coast Guard's allegation of Use of a 

Dangerous Drug is found Not Proved. 

%c. Gaylord has infonned Respondet~t ofti~e risks of coronary artery disease and heart attacks. Tllus, Dr. Gaylord 

rejects any assertion of cocaine use because of the increased "risk of another heart attack or deatll". (& TR. at40- 

41). 
ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Respondent and the subject mater of this heating are properly within the jurisdiction of 

the United States Coast Guard and the Administrative Law Judge in accordance with 46 

U.S.C. 7704(c), 46 CFR Part 5, and 33 CFR Part 20. 

2. Respondent is the holder of U.S. Coast Guard Merchant Mariner License, Serial Number 

994928. 

3. On March 22, 2007, Respondent participated in a random drug test and tested positive for 

cocaine metabolite. 

4. Respondent's positive drug test created the presumption that he is a user of dangerous 

drugs. 46 CFR 16.201(b). 

5. Respondent successfUlly rebutted the presumption that he is a user of dangerous dmgs. 

46 CFR 16.20t(b). 

6. Respondent rebutted the statutory/regulatory presumption tbat he is addicted to or is a 

user of dangerous drugs by reason of the expert medical testimony of Dr. Gaylord; 

au-gnented by Respondent's testimony, Virginia State Delegate Lacey Putney's 

testimony, and the lay testimony of Dr. Gaylord. 

7. The factual allegation "Use of or Addiction to the Use of Dangerous Drugs'' against 

Respondent is found NOT PROVED by a preponderance of the reliable and credible 

evidence. 

ORDER 

IT IS HEREBY ORDERED that the allegation of "Use of or Addiction to the Use of 

Dangerous Drugs"against Respondent is found not proved. 
PLEASE TAKE NOTICE that service of this Decision on the parties and/or 

parties' representative(s) serves as notice of appeal rights set forth in 33 CFR 20.1001-20.1004. 

(Attachment B). 

3. $rtHON. PARLEN L. MCKENNA 

ADMINISTRATIVE LAW JUDGE 

U.S. COAST GUARD 

Done and dated on this 12'~ day of December 2007 

Alameda. California 
ATTACtIVENT A 

WITNESS AND EXHIBIT LISTS 

WITNESS LIST 

COAST GUARD WITNESSES 

10 Witness 1 Cynthia Diane Ward 

I0 Witness 2 Susan P. Mills 

RESPONDENT WITNESSES 

Respondent Witness I 

Respondent Witness 2 

Respondent Witness 3 

Dr. John Gaylord, Ill 

Virginia State Delegate Lacey Pumey 

Michael Wilson 

EXHIBIT LIST 

COAST GUARD EXHIBITS 

See I0 Ex. 1 Copy of Respondent's Merchant Mainer's License 

See I0 Ex. 2 Copy of the Federal Drug Testing Custody and Control Form with 

Respondent's Signature 

See I0 Ex. 3 Copy of Positive Drug Test Letter for the Respondent from the Matitime 

Consorliun, Inc. 

See I0 Ex. 4 Copy of positive split sample test result letter for the Respondent from the 

medical review officer 

See I0 Ex. 5 Lab Litigation Package 

See I0 Ex. 6 Telephonic deposition upon oral examination of James Vanderploeg, MD 
ATTACHMENT B 

NOTICE OF ADMINISTRATIVE APPEAL RIGHTS 

33 CFR 20.1001 General. 

(a) Any party may appeal the ALJ'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 conclusion of law accords with applicable law, precedent, and 

public policy. 

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

(4) The ALJ's 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 ALI 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 tenns prescribed in 49 CFR 7.45. 

33 CFR 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) B asis for the appeal; 
(ii) Reasons supporting the appeal; and 

(iii) Relief requested in the appeal. 

(2) Whet1 the appellant relies on material contained in the record, the appellate 

brief must specifically refer to the pertinent parts 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 after 

sewice of the appellate biief. 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 thc record. 

(c) No party may file inore than one appellate brief or reply brief, unless -- (I) The party has petitioned the Commandant in writing; and 

(2) The Commandant has @anted 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 crrriue brief from any person in an appeal of 

an AW's decision. 

33 CFR 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record on appeal to determine whether the ALJ 

committed error in the proceedings, and whether the Commandant should affirm, 

modify, or reverse the AW's decision or should remand the case for further 

proceedings. 

(b) The Cornmiwidant shall issue a decision on every appeal in writing and shall serve 

a copy of the decision on each party and interested person.