UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

DECISION OF THE 

VICE COMMANDANT 

v. 

ON APPEAL 

NO. 

MERCHANT MARINER DOCUMENT '27 0 8 

Issued to: SIMONE JOYCE SOLOMON 

APPEARANCES 

For the Gov.emment: 

CWO Dan Sammons, USCG 

LT John D. Nee, USCG 

Senior Investigating Officer Mark Gibbs 

For Respondent: 

Graham W. Syfert, Esq. 

Administrative Law Judge: Dean C. Metry 

This appeal is taken in accordance with 46 U.S.C. Chapter 77, 46 C.F.R. Part 5, and 

33 C.F.R. Part 20. 

By a Decision and Order (hereinafter "D&O") dated May 15, 20 ~ 3, an Administrative Law 

Judge (hereinafter "AU") of the United States Coast Guard suspended the Merchant Mariner 

Document of Ms. Simone !oyce Solomon (hereinafter "Respondent") for fourteen months upon 

finding proved one charge of misconduct. The specification found proved alleges that on July 2, 

2012, Respondent, while serving as a crewmember aboard the vessel ALLIANCE 

CHARLESTON, refused a chemical test, in violation of 49 C.F .R. § 40.191 (b ), by submitting what 

according to 49 C.F.R. § 40.93(b) was a substituted specimen. 
SOLOMON NOe 27 0 8 

FACTS 

At all relevant times, Respondent was the holder of a Merchant Mariner Document issued 

to her by the United States Coast Guard. [D&O at 4; Transcript (hereinafter "Tr.") Volume 

(hereinafter "Vol.") I at 13] 1 On July 2, 2012, Respondent was ordered by her employer to take a 

random chemical test. [D&O at4; Tr. Vol. I at 13, 80; Coast Guard Exhibit (hereinafter"CG Ex.") 

19] Respondent's urine specimen was collected in accordance with procedures in 49 C.F.R. 

Part 40. [D&O at 4-5; Tr. Vol. I at 30-31; CG Ex. 3, CG Ex. 7] The collection took place onboard 

the vessel ALLIANCE CHARLESTON, in the port of Jebel Ali, United Arab Emirates. [D&O 

at 4; Tr. Vol. I at 89; CG Ex. 19] On that date, in Jebel Ali, United Arab Emirates, the outside 

temperature was extremely hot. [D&O at 5; Tr. Vol. I at 43, Tr. Vol. III at 10-11] The collector, 

Mr. Hualde, was employed by Anderson-Kelly Associates' service provider in the United Arab 

Emirates, Plastic Powder Coating Company. [Tr. Vol. I at 97] Respondent's employer relies on 

Anderson-Kelly Associates to meet substance testing requirements. [Tr. Vol. I at 69, 87-88] 

Mr. Hualde boxed all of the urine specimens collected on the ALLIANCE 

CHARLESTON, stored them in an air-conditioned room overnight, and shipped them by courier 

the next day, July 3, 2012, to Plastic Powder Coating Company. [D&O at 9-10;2 Tr. Vol. I at 

57-58; CG Ex. 20] The record does not establish exactly when the box was received by Plastic 

Powder Coating Company, but it was received no later than July 7, 2012, when Plastic Powder 

Coating Company shipped the box by Federal Express from the United Arab Emirates to 

Anderson-Kelly Associates in Mount Olive, New Jersey. [Tr. Vol. I at 92-93; CG Ex. 21] 

Ms. Erin Beller of Anderson-Kelly Associates received the box of urine specimens on July 10, 

2012. [Tr. Vol. I at 96-97; CG Ex. 21] She stored the specimens in her office until they were 

released to the courier. [Tr. Vol. I at 95] 

Ms. Beller shipped the box of urine specimens to MEDTOX, a laboratory in St. Paul, 

1 The transcript of the part of the hearing held on January 15, 2013, is broken into two volumes, but is numbered 

consecutively from page 1 to page 328. The transcript of the part of the hearing held on January 16, 2013, is in one 

volume, numbered from page 1 to page 209. 

2 The AU's D&O conflates the actions of the courier and Plastic Powder Coating Company. The record shows that 

Mr. Hualde transferred the box of.samples to the courier on July 3, 2012, and the box was received by Plastic Powder 

Coating Company in the United Arab Emirates, which then shipped the box to Anderson-Kelly Associates in the 

United States. [CG Ex. 20 and CG Ex. 21] 

2 
SOLOMON NO. ! 7 o a 

Minnesota, later in the same day that she received it. [D&O at 5; Tr. Vol. I at 110-11] MEDTOX 

conducted the chemical testing of Respondent's urine specimen. [D&O at 5; Tr. Vol. I at 124-35; 

CG Ex. 8, CG Ex. 10, CG Ex. 19] MEDTOX received the box of urine specimens on July 11, 

2012. [CG Ex. 19] There was no evidence presented that the box of urine specimens was exposed 

to extreme or even unusual heat while it was in the custody of Mr. Hualde, the courier in the United 

Arab Emirates, Plastic Powder Coating Company, Federal Express, Anderson-Kelly Associates, 

the shipper used by Anderson-Kelly Associates, or MEDTOX laboratory. From the time the box 

of urine specimens left the custody of Mr. Hualde on July 3, 2012, until it was delivered to 

Ms. Beller on July 10, 2012, the evidence merely shows that the box was in transit within the 

United Arab Emirates and from the United Arab Emirates to the United States. 

At the MEDTOX laboratory the initial specimen validity testing of Respondent's urine 

specimen showed a creatinine concentration of 1.4 mg/dL. [D&O at 6; Tr. Vol. I at 143-45, 147; 

CG Ex. 19] Subsequent confirmatory testing showed a specific gravity of 1.0223 on one aliquot, 

and a specific gravity of 1.0223 and a creatinine concentration of 1.3 mg/dL on another aliquot. 

[D&O at 6; Tr. Vol. I at 144-145; CG Ex. 19] In accordance with 49 C.F.R. § 40.93(b), the 

laboratory was required to consider the specimen to be substituted, because the creatinine 

concentration was below 2 mg/dL and the specific gravity was greater than 1.0200. [D&O at 6; 

Tr. Vol. II at219] 

These results were reported to a Medical Review Officer, Dr. Hani Khella, who spoke to 

Respondent by telephone, determined there was no legitimate medical reason for the abnonnal 

results, and verified that the urine specimen was substituted. [D&O at 6-7, 10; Tr. Vol. II at 

219-23, 225; CG Ex. 13, CG Ex. 14, CG Ex. 15, CG Ex. 17] Submission of a substituted urine 

specimen is considered a refusal to test. 49 C.F.R. § 40.19l(b). 

PROCEDURAL HISTORY 

The Coast Guard issued its Complaint against Respondent's Merchant Mariner Document 

on August 10, 2012. On the same date, Respondent filed her Answer to the Complaint, wherein 

she admitted the jurisdictional allegations, denied seven of the nine factual allegations, and 

requested a hearing. 

3 
SOLOMON NO. 

The hearing was held on January 15-16, 2013, at Jacksonville, Florida. Respondent was 

represented by counsel. At the hearing, the Coast Guard presented the testimony of five witnesses 

and offered eighteen exhibits, all of which were admitted into the record. Respondent presented 

the testimony of three witnesses and offered seven exhibits, all of which were admitted into the 

record. Two exhibits related to discovery were admitted as AU exhibits. 

Both Respondent and the Coast Guard made oral closing arguments and waived the 

opportunity to submit closing briefs. The ALJ issued his D&O on May 15, 2013. 

Both Respondent and the Coast Guard filed their Notices of Appeal on June 6, 2013. 

Respondent perfected her appeal by filing her Appeal Brief on June 8, 2013. The Coast Guard 

perfected its appeal by filing its Appeal Brief on July 15, 2013. Both appeals are properly before 

me. 

BASES OF APPEAL 

Both Respondent and the Coast Guard appeal from the AU's D&O. Respondent raises the 

following bases of appeal: 

I. Discovery Violations,· 

II. Urinary creatinine degrades at temperatures below 300 degrees Centigrade; and 

m. The charging document was insuf]icient. 

The Coast Guard simultaneously appeals and raises the following bases of appeal: 

/. The ALI abused his discretion and issued a decision not in accord with the law and 

Commandant precedent, when he failed to revoke the credential of a mariner who 

fraudulently substituted her urine specimen in a Coast Guard required drug test,· and 

II. The AL.l's decision to merely suspend the credential of a mariner who attempted to 

defraud the Coast Guard drug-testing program does not promote safety at sea and 

violates public policy. 

4 
SOLOMON N0. 1 

OPINION 

RESPONDENT'S APPEAL 

I. 

Discovery Violations. 

Respondent asserts in her Appeal Briefthat the Coast Guard committed a discovery 

violation when it failed to notify her counsel before trial that Dr. Khella, the Medical Review 

Officer, had additional telephone conversations concerning Respondent's substituted urine 

specimen test result, which Dr. Khella recorded, after his initial unrecorded telephone 

conversation with Respondent. [Respondent's Appeal Brief at 3-5] Respondent asserts that 

following the initial telephone conversation between Dr. Khella and Respondent, there were two 

additional telephone conversations that were recorded, one between Dr. Khella and a union doctor 

and one between Dr. Khella and Respondent. [Id.] Respondent asserts that the AI.J committed 

error by denying discovery of the recording of the telephone conversation with the union doctor, 

and by relying on the Coast Guard's denial of the existence of a third telephone conversation or the 

Coast Guard's failure to address the third phone conversation. [Id.] Respondent argues that the 

telephone recordings would have supported her claim that Dr. Khella never advised her of the 

opportunity to have her specimen retested. [Id. at 3] 

Respondent does not assert that the Coast Guard failed to comply with the requirements of 

33 C.F.R. § 20.601(a)(l) to name Dr. Khella as a witness at the hearing, and to provide a summary 

of his expected testimony. Respondent admits that she also received Coast Guard Exhibit 15, 

which was a script that Dr. Khella testified he used in his initial telephone conversation with her. 

Respondent's Appeal Brief at 3. The ALJ rejected Respondent's allegation that Dr. Khella did not 

offer her the opportunity to have her specimen re-tested, concluding that " ... Dr. Khella credibly 

testified that when he calls donors he reads from a standard MRO interview script, informing each 

donor he or she has up to seventy-two (72) hours to request the split specimen be tested at another 

laboratory. (Tr. Vol. II at 220)(CG Ex.15)." [D&O at 11 n. 3] 

I see no basis to find that the Coast Guard violated applicable discovery requirements or 

that the ALJ erred in failing to order further discovery regarding Dr. Khella and his telephone 

5 
SOLOMON NO. ·27 0 8 

conversations concerning Respondent's substituted urine specimen test results. The record does 

not support Respondent's assertion that there were three telephone conversations. Rather, the 

evidence shows that there were only two telephone conversations concerning Respondent's 

substituted urine specimen test results. In the first, Dr. Khella spoke with Respondent, following 

his MRO interview script. [D&O at 7, 11 n.3; Tr. Vol. II at 220-23; CG Ex. 15] That telephone 

call was not recorded. [Tr. Vol. II at 242] In the second telephone call, Dr Khella spoke to 

Respondent and a doctor who was representing her, at the same time. [Tr. Vol. II at 267-68, 271] 

That telephone call was recorded.3 [Tr. Vol. II at 243, 268, 270-71] 

Shortly before her hearing, Respondent submitted a request for further discovery. Among 

other things she requested the audio recording of Dr. Khella's telephone conversation with her. 

The request was made in connection with Respondent's assertion that she was not given notice of 

her opportunity to have the specimen re-tested, and the Coast Guard's position that Dr. Khella used 

a script to provide the notice about re-testing. The AU found that the motion for further discovery 

was deficient and denied it. At the hearing, on January 16, 2013, following the testimony of 

Dr. Khella and Respondent, the AU initiated another discussion of Respondent's request for the 

audio recording. [Tr. Vol. III at 58-60] The discussion makes it clear that the AU and the Coast 

Guard understood that Respondent was requesting a recording of the initial telephone conversation 

between Dr. Khella and Respondent. [Id.] The ALJ considered the issue moot, because Dr. Khella 

and the Coast Guard maintained that there was no audio recording of the initial telephone 

conversation. [/d.] Although that discussion included references to the second telephone 

conversation, which was recorded, Respondent and her counsel did not raise any objection to the 

ALJ's treating the discovery request as limited to the initial telephone conversation. [Id.] 

Accordingly, I find that there was no error in the ALJ's finding that there was no audio 

recording of the initial telephone conversation, I find that the AU properly treated Respondent's 

request as being limited to the initial telephone conversation, and I find that Respondent waived 

any argument that her request inpluded the audio recording of the other telephone conversation, 

3 The record shows that this second telephone conversation was unlikely to be relevant to the issue of whether 

Respondent was notified of her opportunity to have her urine sample re-tested. Dr. Khella testified that he did not 

address the opportunity to re-test in the second telephone conversation because the seventy-two hours during which 

that opportunity was available had passed. [Tr. Vol. II at 271] 

6 
SOLOMON NO. 27.08 

when she did not address that during the discussion of the request at the hearing. Substantial 

evidence supports the ALJ's finding that the initial telephone conversation was not rec9rded. Any 

suggestion in Respondenes Appeal Brief that her request for the audio recording should have been 

treated as including the recording of the second telephone conversation is not supported by the 

record. 

Discovery in a case such as this is governed by 33 C.F.R. Part 20, Subpart F. Nothing in 

33 C.F.R. Part 20, Subpart F required the Coast Guard to notify Respondent of the second 

telephone conversation among Dr. Khella, Respondent, and a doctor representing her. Moreover, 

it appears that Respondent should have been aware of this second telephone conversation, because 

she was a participant in the conversation. There is no merit in Respondent's first issue on appeal. 

The Coast Guard committed no discovery violation, and the AU did not err in finding that 

Respondent's request for an audio recording of Dr. Khella's initial telephone conversation with 

her was moot. 

II. 

Urinary creatinine degrades at temperatures below 300 degrees Centigrade. 

In her second issue on appeal, Respondent challenges the ALJ's reliance on testimony that 

creatinine is stable and does not degrade in heat because it has a melting point of 300 degrees 

Celsius. [Respondent's Appeal Brief at 6-7] She asserts that it was an abuse of discretion for the 

AU to accept the testimony of Dr. Khella as more knowledgeable and credible than the testimony 

of Dr. Syfert and Dr. Logan, on the subject of the effect of heat on creatinine in urine specimens. 

[Id. at 10] Respondent also requests that a scientific expert be appointed as amicus curiae to 

provide additional testimony on the subject of the effect of heat on creatinine in urine specimens. 

[Id. at 1-2] 

The relevance of the effect of heat on creatinine in urine specimens arises from the fact that 

Respondent's urine specimen was collected when the outside temperature was extremely hot. At 

her hearing, Respondent attempted to establish a legitimate medical explanation for the laboratory 

report of a substituted specimen by asserting that her urine specimen was exposed to extreme heat 

7 
SOLOMON NO. 

during its transport and storage, prior to being tested at the laboratory, which could have caused the 

abnormally low creatinine concentration in her specimen. [D&O at 11] 

I agree with Respondent's argument that there is reason to doubt the testimony of 

Dr. Khella, to the extent that he suggested that creatinine in a urine specimen would not degrade at 

temperatures below 300 degrees Celsius. The 300 degrees Celsius melting temperature stated by 

Dr. Khella, by its terms, evidently relates to crystalline creatinine, rather than creatinine in 

solution, as it exists in a urine specimen. The record does not establish and it cannot be assumed 

that the 300 degree Celsius melting temperature has any relevance to the issue of the heat stability 

of creatinine in urine, and the AU should not have given it any weight. However, despite that, I 

find that there is a substantial basis for the ALl's finding that Respondent failed to establish that 

possible exposure to extreme heat during the transport and storage of her urine specimen was 

sufficient to undermine or refute the Coast Guard's primafacie case of misconduct. [D&O at 11] 

To begin with, there was scant evidence to support Respondent's suggestion that her urine 

specimen was exposed to extreme heat for any extended period of time during the transport and 

storage of her specimen before it was tested at the laboratory. Mr. Hualde, the collector, kept the 

specimens in an air-conditioned room until he released them to his courier, and Ms. Beller kept 

them in her office until she released them to her courier. The only substantial time during which 

the transport and storage conditions are uncertain is the period from July 3, 2012, when Mr. 

Hualde delivered the specimens to his courier for delivery to Plastic Powder Coating Company, 

and July 10, 2012, when Ms. Beller received the specimens in New Jersey. During that eight-day 

period, the specimens were in the custody of the courier or Plastic Powder Coating Company in the 

United Arab Emirates, and Federal Express for transport from the United Arab Emirates to the 

United States. Respondent speculates that her urine specimen may have been exposed to high 

temperatures during some or all of that eight-day period. 

The regulations in 49 C.F .R. Part 40 do not address the transport and storage of urine 

specimens, except to require the collector to ensure that the specimens are "shipped to a laboratory 

as quickly as possible, but in any case within 24 hours or during the next business day." 49 C.F.R. 

§ 40. 73(b ). For purposes of its prima facie case, the Coast Guard only had to prove that the 

8 
SOLOMON I 

NO. ·27 0 8 

regulations were complied with. Therefore, the Coast Guard was not required to prove that 

Respondent's urine specimen was not exposed to high heat during transportation and storage prior 

to being tested. 

The regulations also do not address transport and storage of urine specimens as a basis for 

finding that there was a legitimate medical explanation for the report of a substituted specimen. 

They place the burden on the employee to "demonstrate that he or she did produce or could have 

produced urine through physiological means" that meets the criteria for a substituted specimen. 

49 C.F.R. § 40.145(e). Assuming the phrase ''produced urine through physiological means" 

allows a legitimate medical explanation to be based on the transport and storage of the urine 

specimen, Respondent had the burden to demonstrate that her specimen was exposed to sufficient 

heat for a sufficient time to cause it to be reported as substituted even though it was produced 

through physiological means. 

Respondent's Exhibit 5 contains the most specific evidence on the issue of the heat 

stability of creatinine. Respondent's Exhibit 5 is a paper entitled Urine pH: the Effects of Time and 

Temperature after Collection, 31 Journal of Analytic Toxicology 486 (2007). Although primarily 

concerned with urine pH, the paper also incidentally addresses the heat stability of creatinine. The 

paper r.eports that creatinine in a urine specimen was stable at -20, 4, and 25 degrees Celsius. Id. at 

490. When exposed to temperatures above 25 degrees Celsius for fourteen days, the creatinine 

concentration in a urine specimen would degrade. Id. at 488. Ultimately, however, the paper 

concludes: "At none of the investigated temperatures were results for urine creatinine 

concentration or specific gravity obtained that met the reporting criteria of a substituted or dilute 

specimen." Id. at 493. The "investigated temperatures" included up to 93 degrees Celsius. Id. 

That is nearly 200 degrees Fahrenheit. Accordingly, this paper does not support Respondent's 

argument that her urine specimen may have been reported as substituted because of exposure to 

heat during transportation and storage before testing. Respondent's Exhibit 5 suggests that if her 

urine specimen had been produced through physiological means, even exposure to extreme heat 

9 
SOLOMON NO. 27 0 8 

for fourteen days would not cause it to be reported as dilute or substituted.4 

The evidence shows that Respondent's urine specimen was kept at room temperature, 

where creatinine is stable, except for a period of eight days when the temperatures to which the 

urine specimen was exposed ~e unknown. If exposure for fourteen days at temperatures up to 93 

degrees Celsius would not produce a urine specimen that met the reporting criteria for a substituted 

specimen, or even a dilute specimen, then there is no basis for finding that Respondent's urine 

specimen was reported as substituted only because it may have been exposed to heat during the 

eight days it was in the United Arab Emirates or in transit from there to the United States. 

The testimony of Respondent's two witnesses, Dr. Syfert and Dr. Logan, which conflicted 

with that of the Coast Guard's witness, Dr. Khella, on the subject of the heat stability of creatinine, 

is not so credible or reliable that it could refute or add materially to the results reported in 

Respondent's Exhibit 5. As discussed above, there is reason to doubt the opinion of Dr. Khella 

regarding the heat stability of creatinine. Yet Dr. Logan was ultimately uncertain about the effects 

of heat on the concentration of creatinine in a urine specimen. [D&O at 15-16; Tr. Vol. III at 

127-28] Finally, Dr. Syfert was of the opinion that creatinine in an unrefrigerated urine specimen 

would degrade. [D&O at 15; Tr. Vol. III at 100] However, he was not specific as to the rate at 

which creatinine would degrade, in relation to any particular temperature or time period. Nor did 

he explain the basis for his opinion. While it appears true, primarily based on Respondent's 

Exhibit 5, that the concentration of creatinine in a urine specimen will degrade over time when 

exposed to temperatures above 25 degrees Celsius, Respondent did not establish that, during the 

eight days her specimen was in transit and storage, it was exposed to temperatures that would 

cause the specimen to be reported by the laboratory as substituted. The ALJ correctly found that 

the Coast Guard proved its case that the urine specimen was properly determined to be substituted, 

and Respondent's rebuttal evidence concerning the heat stability of creatinine was insufficient to 

refute the Coast Guard's evidence. [D&O at 11] 

Regarding Respondent's request for amicus curiae, I find that the request is untimely. 

4 The AU found that this study and another offered into evidence as Respondent's Exhibit 4 were not very probative 

"as Respondent presented minimal testimony as to the significance of the studies and/or how they relate to the instant 

case." [D&O at 16] 

10 
SOLOMON NO. 

27 0 8 

Respondent was afforded her right to a hearing before an impartial AU, as required by 46 U.S.C. 

§ 7702(a) and 46 C.F.R. § 5.501. The ALJ closed the record at the conclusion of the hearing, on 

January 16, 2013. [Tr. Vol. III at 177] Respondent did not move to reopen the record, in 

accordance with 33 C.F.R. § 20.904. The request for amicus curiae was included in Respondent's 

appeal brief, which was filed on June 8, 2013, well beyond thirty days after the record was closed. 

Respondent has had her chance to present her case, and she has not shown that further expert 

testimony is likely to lead to a more favorable result for her. 

Accordingly, while Respondent's challenge to Dr. Khella's testimony on the heat stability 

of creatinine has some merit, I do not find it provides any basis for relief. 

III. 

The charging document was insufficient. 

Before her hearing, Respondent moved that the Complaint be dismissed with leave to 

amend because the allegations in the Complaint did not include the results of the confirmatory tests 

for creatinine and specific gravity. [Respondent's Motion for Summary Disposition and Motion to 

Dismiss the Complaint, dated October 30, 2012, at 5] She argued that because 49 C.F.R. 

§ 40.93(b) requires confirmatory testing in order for a laboratory to report a specimen as 

substituted or dilute, the Complaint was deficient ifit did not allege the results of the confirmatory 

tests. [Id. at 5-6] On November 29, 2012, the ALJ denied the motion to dismiss the Complaint, 

finding that "the Complaint contains all requisite information and provides Respondent with 

adequate notice of the actions giving rise to the alleged offense." [Order dated November 29, 

2012, at 4-5] Among other things, the Complaint alleged the initial laboratory test results for 

creatinine and specific gravity, and that the specimen was considered to be substituted in 

accordance with 40 C.F.R. § 40.93(b); that the Medical Review Officer verified the refusal to test 

by submitting a substituted sample; and that, in accordance with 49 C.F.R. § 40.19l(b), 

Respondent refused to test in that the Medical Review Officer reported a verified substituted test 

result. On appeal, Respondent asserts that the ALJ erred in denying her motion to dismiss the 

Complaint. [Respondent's Appeal Brief at 10-11] 

11 
SOLOMON NO. 2 7 0 8 

The_ rules of practice for Coast Guard suspension and revocation proceedings address a 

motion to dismiss a complaint in these terms: 

§ 20.311 Withdrawal or dismissal. 

••• 

( d) Any respondent may move to dismiss a complaint ... or any party may lodge a request 

for relief, for failure of another party to -

(1) Comply with the requirements of this part or with any order of the AU; 

(2) Show a right to relief based upon the facts or law; or 

(3) Prosecute the proceeding. 

(e) A dismissal resides within the discretion of the AU. 

33 C.F.R. § 20.311 (2012). 

The rules of practice address the requirements for a complaint in these terms: 

§ 20.307 Complaints. 

(a) The complain must set forth --

( 1) The type of case; 

(2) The statute or rule allegedly violated; 

(3) The pertinent facts alleged; and 

(4) ... (ii) The order of suspension or revocation proposed. 

(b) The Coast Guard shall propose a place of hearing when filing the complaint. 

(c) The complaint must conform to the requirements of this subpart for filing and service. 

33 C.F.R. § 20.307 (2012). 

Respondent argues that the Complaint did not comply with a requirement of33 C.F.R. 

Part 20, because it failed to allege pertinent facts, specifically the results of the confirmatory tests 

for creatinine and specific gravity performed in accordance with 49 C.F .R. 40.93(b ). In denying 

the motion, the AU stated: 

The pwpose of a Complaint is to provide a respondent with notice of the actions giving rise 

to the alleged offense such that a respondent can prepare a defense. The Complaint does 

not require a recitation of all details surrounding the alleged charge. Appeal Decision 25 85 

CCOULONl (1997). 'The thrust of modem pleading, especially in administrative 

proceedings, is toward fulfillment of the notice requirement.' Appeal Decision 2326 

12 
SOLOMON NO. 

·27 a a 

(MCDERMOTT) (1983). 

*** 

The undersigned finds the Complaint contains all requisite information and provides 

Respondent with adequate notice of the actions giving rise to the alleged offense. As such, 

the Complaint is not deficient on its face, and the Motion to Dismiss Complaint is 

DENIED." 

[Order dated November 29, 2012, at 5] 

Dismissal of a Complaint is within the discretion of the AU. 33 C.F.R. § 20.31 l(e). The 

Complaint provided Respondent with notice that she was charged with refusal to test, based on a 

verified substituted urine specimen test result. In addition, the Complaint provided details about 

the employer-directed, random chemical test; the collection of the specimen; and the initial 

laboratory test results that were verified by the Medical Review Officer as a refusal to test based on 

a substituted specimen. The AU did not abuse his discretion by finding that the Complaint 

adequately provided Respondent with notice of the actions giving rise to the alleged offense. 

It has long been held that the case-in-chief for a suspension and revocation proceeding 

based on chemical test results must show that applicable regulations relating to the chain of 

custody and specimen integrity safeguards were followed. See, e.g., Appeal Decision 2555 

(LAVALLAIS) (1994). While the Coast Guard must show that applicable regulatory 

requirements were complied with in its case-in-chief, that does not mean that each such 

requirement must be alleged in the Complaint. The requirement for confirmatory testing is just 

one of many requirements for chemical testing included in 49 C.F.R. Part 40. The Complaint 

alleged that Respondent's refusal to test was with respect to a chemical test ordered by her 

employer, in accordance with 46 C.F.R. Part 16. The Complaint also cites 49 C.F.R. § 40.93(b) 

and § 40.191 (b) as regulations providing standards for substituted specimens and for a refusal to 

test. There can be no doubt that Respondent was on notice that her actions giving rise to the 

alleged charge of misconduct involved chemical testing results and compliance with the chemical 

testing programs prescribed by 46 C.F.R. Part 16 and 49 C.F.R. Part 40. Respondent also 

specifically addressed the subject of confirmatory testing at the hearing. [D&O at 11; Tr. Vol. I 

at 199; Vol. II at 202-03] The Complaint was not deficient, and the AU did not abuse his 

discretion in denying the motion to dismiss the Complaint. 

13 
27 0 8 

SOLOMON NO. 

For the reasons discussed above, Respondent's third basis for appeal is rejected. 

COAST GUARD'S APPEAL 

The two bases for appeal asserted by the Coast Guard were previously addressed in Appeal 

Decision 2702 (CARROLL) (2013). With respect to the first issue, it was decided that any 

language in previous Commandant's Decisions on Appeal affirming an AU's decision to revoke a 

mariner's credentials for a refusal to test could not be interpreted to require revocation as a 

sanction in such cases. Id. at 5-6. Applicable regulations authorize the AU to decide on a sanction 

and, where the regulations do not require revocation as a sanction, a Commandant's Decision on 

Appeal cannot displace the regulation and-require the AU to order revocation. Id. Accordingly, 

the AU's order of a sanction less than revocation is not by itself a basis for finding that the AU 

abused his discretion. Id. 

With respect to the second basis for appeal, in Carroll it was decided that the same basis 

did not constitute proper grounds for an appeal of the ALJ's decision. Id. As in Carroll, the record 

here does not show that the AU failed to consider the proper factors, including public policy, that 

are relevant to a fair and impartial adjudication of the case on its individual facts and merits. The 

AU, among other things, specifically acknowledged that the purpose of the proceeding is "to 

'promote, foster, and maintain the safety of life and property at sea."' [D&O at 18] The AU also 

considered case law submitted by the Coast Guard showing that revocation had previously been 

imposed in refusal-to-test cases. [Id. at 19] Nothing significantly distinguishes this case or the 

Coast Guard's bases for appeal from Ap,peal Decision 2702 (CARROLL) (2013). For the reasons 

discussed in that decision, the Coast Guard's bases for appeal are rejected. 

CONCLUSION 

The ALJ's ultimate findings and sanction are neither erroneous nor an abuse of discretion. 

Although I agree with Respondent that testimony about the melting point of crystalline creatinine 

has little or no relevance to any material issue in this case, any reliance by the AU on that 

testimony did not prejudice Respondent, and no relief is warranted. 

14 
SOLOMON NO. 

27 0 8 

ORDER 

The All's Decision and Order dated May 15, 2013 is AFFIRMED. 

Signed at Washington, D.C., this I~ day of ;t2trt" , 2015. 

15