,I 

UNITED STATES OF AMERICA 

DEPARMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

DOMINIC MCDONALD 

Docket No. CG S&R 01-0118 

Case No. PA00001665 

DECISION AND ORDER 

______ Res ondent-- ------- --------------------------

BEFORE: 

THOMAS E. MCELLIGOTT 

Administrative Law Judge 

APPEARANCES: 

FOR THE COAST GUARD 

Investigating Officer Kenneth M. Bellino 

Investigating Officer Thomas Johnson 

United States Coast Guard 

Marine Safety Unit Galveston 

U.S. Army Engineer's Building 

P.O. Box 0149 

Galveston, TX 77553-0149 

FOR THE RESPONDENT 

Mandell & Wright, P.C by 

Eliot P. Tucker, Esquire 

712 Main Street, Suite 1600 

Houston, Texas 77002-3297 

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··MCDONALD 2 

PRELIMINARY STATEMENT 

From the outset and during Respondent's attorney Eliot Tucker's Opening 

-- Statement at the beginning of the first day of hearings, Respondent's Trial Counsel 

promised to prove by DNA evidence that Respondent's urine sample was not a 

"substituted" sample produced by Respondent for drug testing as alleged in the official 

Complaint by the two (2) Investigating Officers. He promised to prove it was 

Respondent's own uriJ:le sample, only influenced by Responc1~nt' 0__rill.king excessive- ---- --- -------- ---------~~-- ---

liquids and taking about three (3) medicines before giving his sample. 

I had taken a judge's course on Scientific Evidence and Expert Witnesses at the 

National Judicial College, on the campus of the University of Nevada at Reno, that 

included DNA evidence. I also obtained at this Judge's National Judicial College, 

affiliated with the American Bar Association, a book that summarized the results of 

about twenty-eight (28) jury convictions and appeals to Federal and State Courts. The 

twenty-eight (28) appeals involved DNA evidence. 

After being convicted. by juries and sentenced for serious crimes such as 

murders, rapes and manslaughter, these U.S.A. citizens served an average of seven (7) 

years in Federal or State prisons before appeals to higher courts involving DNA 

evidence overturned these jury convictions and set these citizens free. 

Since about twenty-eight (28) appellate courts accepted DNA evidence in these 

serious criminal charges' cases and set the twenty-eight (28) people free because of 

DNA evidence, I was waiting and anxious to see if in this case Respondent's attorney 

could establish by DNA evidence th<?.t the urine sample submitted by this Respondent 
MCDONALD 3 

on July 31,2000, was his urine sample. It was to be compa~ed to his DNA found in his 

hair, saliva, blood or some other such substance to prove that indeed and in truth the 

laboratory report finding Respondent's urine sample was reported as substituted, 

because it was found by tests to be not normal human urine, was in fact wrong. 

If the DNA laboratory in Houston, Texas by its written report and testimony 

could convince me that by DNA evidence it was in fact Respondent's true urine sample, 

I was prepared to disn:Uss the-Investigating Officer's Complaint and this case. 

However, as detailed l5elow, Respondent's attorney, after being given at least 

two (2) postponements that he requested to produce such DNA evidence and waiving 

any further postponements for DNA evidence by the end of the case, Respondent's 

• 

attorney, an experienced and certified civil trial attorney by the State Bar Association, 

chose not to offer any DNA report and testimony at the fifth day of the hearings. 

Experienced Respondent's trial attorney chose to rest his case without any offer of DNA 

evidence at all. 

The book or report is entit~ed "Convicted by Juries, Exonerated by Science: Case 

Studies in the Use of DNA Evidence to Establish Innocence After Trial" by the U.S. 

Department of Justice, Office of Justice Programs, National Institute of Justice, Research 

Report by Edward Connors, Thomas Luudregan, Neal Miller and Tom McEwen, 

published in June 1996. It contains an approving introduction entitled "Message from 

the Attorney General" by Janet Reno, then the U.S; Attorney General. 

In discharge of its duty tq promote safety of life and property at sea, the United 

States Coast Guard ("Coast Guard"), by its said Investigating Officers ("I.O.s"), initiated 
MCDONALD 4 

this administrative action by serving Respondent with an official Complaint seeking 

revocation of Merchant Mariner's License ("License") Number 788349 and Merchant 

Mariner's Document ("Document") Number 466-76-9713, both issued to Respondent 

Dominic D. McDonald. 

This action is brought pursuant to the legal authority contained in 46 U.S. Code 

Chapter 77, 46 Code of Federal Regulations ("C.P.R.") Parts 5 and 16, and 49 C.F.R. Part 

40. 

In an Amended Complaint dated April6, 2001, the Coast Guard Investigating 

Officer alleges that Respondent McDonald committed Misconduct in violation of 46 

U.S.C. § 7703 and 46 C.F.R. § 5.27. More specifically, the Coast Guard alleges that 

Respondent McDonald, while acting under the authority of his license and document, 

wrongfully refused to submit to required chemical testing for dangerous drugs by 

providing a substituted urine specimen during a pre-employment drug test on July 31, 

2000.1 

The factual allegations in the Amended I.O.' s Complaint read as follows: 

1. On July 31,2000, Respondent took a pre-employment drug test. 

2. Pat Rodriguez of Concentra Medical Center collected the urine specimen. 

3. The Respondent signed a Federal Drug Testing Custody and Control Form. 

4. The lfrine specimen was collected and analyzed by Quest Diagnostics using 

procedures approved by the Department of Transportation. · 

1 The Coast Guard filed an initial complaint on February 23,2001, identifying the collector's employer as Quest 

Diagnostics when, in fact, the collector Pat Rodriquez was an employee of Concentra Medical Centers. In addition, 

both complaints (i.e., the initial and the amended complaint) state that Respondent's Merchant Mariner's License 

Number is 799349. Respondent's true Merchant Mariner's License Number is 788349. (Transcript ("Tr. ") 102). 
MCDONALD 

5. Specimen was returned Specimen Substituted: Not consistent with human 

urine. 

6. Laboratory findings5onstitute a refusal to test as per 46 C.F.R § 16.105. 

5 

7. The Respondent wrongfully refused to submit to a pre-employment drug test 

as required by Masters, Mates & Pilots Union. 

On April25, 2001, Respondent McDonald, by and through his attorney Eliot P. 

Tucker of the law firm of Mandell & Wright P.C., filed a timely Answer to the Coast 

Guard's Amended Compla~~~·. The Respondent admitted all jurisdictional allegations, 

----

-- ------bu.raenre_d-aiHactua!allegaHons and requested a hearing on the Coast Guard's 

proposed order of revocation, before an Administrative Law Judge. 2 

An evidentiary hearing was conducted before U.S. Administrative Law Judge 

Thomas E. McElligott in Houston, Texas on May 16 through May 18, 200t June 7, 2001, 

and July 12,2001. The hearing was conducted in accordance with the Administrative 

Procedure Act, as amended and codified at 5 U.S.C. §§ 551-559, and Coast Guard 

procedural regtilations codified at 33 C.F.R. Part 20. 3 

At the hearing, Investigating Officers Kenneth M. Bellino and Thomas Johnson 

for the port and region of Galveston, Texas, entered appearances on behalf of the 

United States Coast Guard. Attorney Eliot P. Tucker of Houston, Texas, represented 

Respondent Dominic McDonald. 

2 Paragraph 3 of the jurisdictional allegations in the Respondent's Answer to the Investigating Officer's Complaint 

states that the pre-employment drug screen test occurred on July 31, 2001. The true date is July 31, 2000 as 

correctly stated in the Coast Guard's Complaint and as established during the hearing. 3 The Transcripts ("Tr.") for the five days ofhearings are referred to as follows: (Tr. Vol!) May 16, 2001; (Tr. Vol 

II) May 17, 2001; (Tr. Vollll) May 18, 2001; (Tr. Vo!IV))une 7, 2001; (Tr. Vol V) July 12,2001. 
U1CDONALD 6 

During the hearings, there were 9 witnesses and 30 exhibits offered in evidence. 

The Coast Guard offered the testimony of 5 witnesses and introduced 12 exhibits into 

evidence. Judicial notice was taken of I.O. Exhibit 10 and the remaining exhibits were all 

admitted into evidence. The Respondent testified in his own behalf and offered the 

testimony of 3 additional witnesses. Eighteen (18) Respondent exhibits were 

introduced and admitted into evidence by Administrative Law Judge McElligott. At 

the conclusion of this hearing, this case was taken under advisement.4 

After careful review of the transcripts, exhibits, facts and applicable law: in this 

case, the allegations in the Coast Guard's Amended Complaint are found proved by a 

preponderance of reliable, probative, substantial and credible evidence produced at the 

hearings. However, for reasons stated herein, revocation of Respondent's merchant 

mariner's license and document is not an appropriate order. Respondent's license and 

document are both subject to outright suspension for a 12-month period, followed by an 

additional12 months on probation. 

Respondent's attorney du~ing his Opening Statement, and several times later 

during the hearings, promised to offer proof by DNA evidence from a DNA laboratory 

in Houston that would prove that the urine specimen sent to this Quest Diagnostics 

Laboratory was not substituted but was indeed and in reality Respondent's urine 

sample. After giving Respondent and Respondent's attorney several postponements to 

produce such testimony and/ or evidence, his attorney declined to offer any such DNA 

evidence on the grounds that there was some delay by his DNA laboratory and he did 

4 A complete exhibit list is provided in Attachment I 
MCDONALD 7 

not think it would help Respondent's case anyway. He finally asked for no more 

delays. He initially stated this DNA laboratory in Houston would only need about 2 

weeks to produce its results. I gave him postponements well beyond that 2 to 3-week 

delay. However, he declined to later offer any such evidence. 

So that Respondent's attorney could produce such DNA evidence early during 

the hearings, I granted his filed written motion and I signed a written Order that a 

portion or aliquot from the urine sample in the requested amount wou~d be ~~~t ~ _____ _ -==----------

directly from the Quest Diagnostics Laboratory to the Respondent's attorney's chosen 

DNA laboratory in Houston, Texas. This was done. Nevertheless, subsequently no 

such DNA evidence was ever offered into this record by Respondent or Respondent's 

attorney. 

After careful review of the facts and applicable law in this case, the allegations in 

the I.O.'s Amended Complaint are found proved by a preponderance of reliable, 

probative, substantial and credible evidence produced at the hearing. The Respondent 

has failed to rebut or discredit th~ Coast Guard's prima facie case establishing that Mr. 

McDonald refused to submit his. urine sample for certified laboratory testing on July 31, 

2000. Throughout most of the hearings, the Respondent's attorney declared that he 

would prove with DNA evidence that the urine specimen collected on July 31, 2000 by 

Concentra Medical Centers was not substituted; but, was, in fact, Mr. McDonald's urine 

specimen. The Respondent's attorney was provided continuances on May 18, 2001 and 

on June 7, 2001 so that he could secure the testimony and reports of DNA experts. On 

July 12, 2001, the fifth day of the hearings, I again invited Respondent's attorney to offer 
MCDONALD 8 

his DNA evidence and even asked if he needed more time. The Respondent's attorney 

decided to abandon the use of such DNA evidence. He stated that he would not use 

any DNA evidence because: (1) he was dissatisfied with the DNA testing laboratory in 

Houston and their numerous delays in analyzing the Respondent's urine specimen; and 

(2) the Coast Guard I.O. Kenneth M. Bellino had successfully convinced him that even if 

the DNA evidence came back as Respondent's urine, it would not prove that all of the 

urine belonged to Mr. McDonald. 

Nevertheless, Respondent's attorney did not offer any DNA evidence to prove 

that all or any of it sent to the Houston DNA laboratory was Respondent's urine. Its 

DNA components were going to be compared to Respondent's hair or saliva DNA 

composition for positive DNA evidence. However, no such comparisons were ever 

finally offered into this record by Respondent. 

Thus, the Coast Guard has proved by a preponderance of reliable, probative/ 

substantial and credible evidence that Respondent Dominic McDonald committed 

misconduct in violation of 46 C.F,R. Parts 4, 5 and 161 including section 5.27 and 

applicable statutes by providing a urine specimen that was subsequently reported by 

the federally certified drug testing laboratory and the Medical Review Officer as being 

"Substituted Specimen: Not consistent with normal human urine," thus constituting a 

refusal to test under 46 C.F.R. Part 16, including 16.105.' However, for the reasons stated 

herein, including that Respondent has not been shipping since giving this urine sample 

since July 31, 2000 as a result of the urine testing laboratory's findings and report, 

revocation of Respondent's merchant mariner's license and document is not found an 
MCDONALD 9 

appropriate order. Instead, Respondent1s Coast Guard issued license and document 

will be suspended outright for a continuous 12-month period, followed by an additional 

12 months on probation, which if proved violated, will resultin twelve (12) additional 

months .of outright suspension of his U.S. Coast Guard license and document. 

FINDINGS OF FACT 

1. Respondent Dominic D,_McDonald is the holder of Merchant Mariner's License 

Number 788349 and Merchant Mariner's Document Number 446-76-9713. He has 

been the holder of Coast Guard credentials for approximately 26 years, and he 

does not have a prior history of any violations of U.S. laws and/ or regulations 

with the Coast Guard. (Tr. Vol I: 102-103; Tr. Vol II: 257). 

2. Respondent McDonald is an employee member of the Master, Mates & Pilots 

Union ("MM&P"). He currently has 19.35 years of pension credit and only needs 

0.65 more years of pension credit to retire with a full pension. (Investigating Officer 

("IO") Exhibit 6; Tr. VolJ: 40, 47-48, 61; Tr. Vol II: 256). 

3. MM&P is an international organization that provides members with employment 

opportunities to bid on union contract jobs with various shipping companies. 

MM&P also provides members with health benefits (including payment for drug 

testing), Coast Guard legal aid benefits, and a pension or individual retirement 

account. (Tr. Vol I: 39-43). 
MCDONALD 10 

4. In order to bid on union contract jobs and as a condition of employment, a member 

must have a drug-free certificate issued by MM&P after the union member passes 

a drug test of his urine. (Tr. Vol I: 63-64). 

5. Since the Department of Transportation began its drug-testing program in 1989, 

Respondent McDonald has never tested positive for dangerous drugs nor had it 

ever been reported prior to these allegations that Respondent McDonald's urine 

specimen was substituted.· (Tr. Vol II: 258-260). 

6. Since 1989, MM&P has fssued 13 drug-free certificates to Respondent. His last 

drug-free certificate was issued in July of 1999 and was valid until January 25, 

2000. (Respondent's ("R.") Exhibit 6; Tr. Vol I: 40, 46; Tr. Vol II: 265). 

7. On the date in which the most recent drug-free certificate expired, Respondent was 

completing a voyage aboard the vessel SEALAND CONSUMER upon which he 

was serving as Third Mate where was subject to random drug testing. However, 

he was not selected for, nor did he submit to, drug testing during the voyage. 

Respondent McDonald's to\].r of duty aboard the SEA LAND CONSUMER 

commenced on December 2,1999 and ended on March 23,2000. (Tr. Vol I: 49, 63-

68; Tr. Vol II: 265-266). 

8. Following completion of his tour aboard the vessel SEALAND CONSUMER, 

Respondent went on vacation from March 23,2000 until July 31,2000 and, to date, 

he has not been able to return to work in the maritime industry since the 

laboratory and MRO reported that he submitted a substituted urine specimen for a 

drug test on July 31, 2000. (Tr. Vol I: 63; Tr. Vol II: 256-257, 266). 
MCDONALD 11 

9. On the morning of July 31,2000, Respondent went to a Concentra Medical Center 

in the port of Houston, Texas (i.e., the contract collection company for MM&P) to 

give a urine sample for a pre-employment drug test so that he could obtain a drugfree certificate from MM&P and then be eligible to obtain a union contract job as 

an officer or mate in the U.S. Merchant Marine. (Tr. Vol II: 283-284). 

10. Before reporting for drug testing, Respondent testified he had been taking and 

took the following medications: (a) 20 milligra~_Qf:PIQ~C!~l }'VhichJ13_Jll1___ _ __ -- ----- -----------------

antidepressant; (b) 1,500-milligrams of Niacin, which is just another name for 

Vitamin B; and (c) eye drops Timolol Maleate, which is a beta-blocker used for 

glaucoma. He may have also taken Deconamine SR, which is a 

decongestant/ antihistamine, before he reported for. drug testing by giving his 

urine sample. (Tr. Vol II: 137-138, 185-189; 279-280). 

11. The Vitamin Band Timolol Maleate eye drops would not have caused Respondent 

to experience any urinary problems. (Tr. Vol II: 138-139). 

12. The Deconamine SR and Prozac are both medications that, as a side effect, may 

make it difficult for Respondent to urinate on demand. Nevertheless, Respondent 

was capable of producing urine at normal required amounts on July 31, 2000. (R. 

Exhibit 12, 13, 17; Tr. Vol II: 132-133, 138-139, 145-151). 

13. Because Respondent testified he usually had problems urinating on demand, he 

testified he drank plenty of liquids (such as juice, coffee, Coke, and water) before 

reporting to give a urine specimen for laboratory drug testing on the morning of 
MCDONALD 12 

July 31,2000. (Tr. Vol II: 268-270, 283-284). Respondent chose this date to go and 

give his urine sample, July 31, 2000. 

14. Over hydration or water loadi~g (i.e., drinking excessive amounts of water or other 

liquids) would not have substantially reduced the normal human urine specimen's 

combined "creatinine concentration" and "specific gravity" to the point in which it 

would have been determined by the laboratory and MRO as a" substituted urine 

specimen." (I.O . .Exhibit-9, 10, 11). 

15. On the morning of July 31, 2000, Respondent arrived at Concentra Medical Centers 

and presented an MM&P Authorization for Examination or Treatment Form to the 

front desk clerk. (I.O. Exhibit 7; Tr. Vol I: 65-66). 

16. Respondent then signed Concentra Medical Centers' Consent for Substance Abuse 

Screening Form, agreeing to submit his urine sample to a pre-employment drug 

screening test by a laboratory, and authorizing release of the drug test results to 

his employer. (I.O. Exhibit 8). 

17. After completing and submitting all necessary drug testing documents and forms, 

Respondent waited in the lobby for approximately 30 minutes before meeting with 

the trained and experienced urine sample· collector, Ms. Patricia M. Rodriguez. 

She testified credibly at the hearing. (Tr. Vol II: 284-285). 

18. While he waited to be tested, Respondent did not drink any liquids. (Tr. Vol II: 

285). 

19. In the interim, the front desk clerk forwarded the drug testing authorization forms, 

together with copies of Respondent's State of Texas driver's license and Coast 
MCDONALD 

Guard Merchant Mariner's Document ("MMD") and License, to Ms. Rodriguez. 

The Texas driver's license and MMD contained his facial picture for his 

identification along with other .identification data. (Tr. Vol I: 101, 103-106). 

20. At the outset of the collection process, Ms. Rodriguez identified Respondent 

McDonald by his photo identification on his Texas State driver's license and 

verified his social security number, which is also his MMD number. (Tr. Vol I: 

113-114). 

21. After positively identifying Respondent McDonald, Ms. Rodriquez initiated the 

official Federal Drug Testing Custody and Control Form ("CCF"), or collection 

form, by matching and reporting Respondent's social security number with 

specimen i~entification number 1213480, by placing an "X" in the box marked 

"pre-employment", indicating the reason for the test, and by marking an "X" in 

the box indicating the test to be performed, which indicated testing for "THC, 

Cocaine, PCP, Opiates and Amphetamines." (J.O. Exhibit 2, 3). 

22. Respondent then washed hi_s hands, as instructed, in a sink just outside of the 

restroom. (Tr. Vol II: 285-286). 

13 

23. After washing his hands, Ms. Rodriguez gave Respondent an open, empty, clean 

specimen container, which he took, went into the restroom, and, while behind 

closed doors, and out of her sight, he was supposed to have provided his urine 

specimen by filling the collection cup to the minimum desired amount. (Tr. Vol I: 

120; Tr. Vol II: 286). 
MCDONALD 14 

24. Respondent McDonald then came out of the restroom and gave the filled urine 

specimen holding container to Ms. Rodriguez, who then observed that the urine 

specimen looked like human urine; and she noted on step 2 of the official 

collection form, the CCF, that the temperature of the urine specimen was within 

normal range. (I.O. Exhibit 2, 3; Tr. Vol I: 117-118). 

25. Ms. Rodriguez took the urine specimen container and poured it into two smaller 

specimen bottles,. which·were both sealed in Respondent's presence with tamperproof seals. Respondent McDonald then initialed the tamper-proof seals. (Tr. Vol 

II: 288-289). 

26. Respondent then signed step 4 of the CCF, certifying that he provided his 

unadulterated urine specimen to the collector and that each specimen bottle used 

was sealed with a tamper-evident seal in his presence and that the information 

provided on the CCF and on the label affixed to each bottle is correct. (I.O. Exhibit 

2,3; Tr. Vol I: 118-119). 

27. Respondent also signed the _bottom half of the Concentra Medical Centers' 

Consent for Substance Abuse Screening Test Forin, acknowledging ownership of 

the urine samples and that he observed the samples being sealed in the two 

bottles, which he initialed. (I.O. Exhibit 8; Tr. Vol I: 119). 

28. Ms. Rodriguez then signed step 5 of the collection form, the CCF, certifying that 

Respondent provided the specimen, which was collected, labeled and sealed hi 

accordance with Federal requirements. Ms. Rodriguez also signed step 6 of. the 

CCF acknowledge receipt of the Respondent's urine specimen, which was 
MCDONALD 15 

subsequently released to a courier for direct delivery to the contract federally 

certified testing laboratory, Quest Diagnostics. (J.O. Exhibit 2, 3). 

29. Quest Diagnostics is a federally inspected and certified drug-testing laboratory. 

(I.O. Exhibit 5). 

30. On August 1, 2000, Octavio Aceves in Central Processing at Quest Diagnostics 

laboratory received Respondent's urine specimen ID number 12134840 from the 

courier. Upon receipt, Quest Diagnostics assigned lab accession number 

S0200297792 to Respondent McDonald's urine specimen. (J.O. Exhibit 3, 5; Tr. Vol 

I: 128, 139). This is the third identifying number for Respondent's urine sample. 

31. Later an initial screening test was performed by the laboratory on the urine 

specimen for the presence of drugs, creatinine, nitrite, and pH. However, since the 

laboratory test and analysis revealed that Respondent's urine "creatinine 

concentration" was 3 milligrams per deciliter ("mg/ dL") and also his urine 

"specific gravity level" was 1.001, the laboratory's certifying scientist, Fernando C. 

Medina, finally reported on_the CCF that the laboratory determined and reported: 

"Specimen Substituted: Not consistent with normal human urine." (I.O. Exhibit 3-

5, 9; R. Exhibit 10; Tr. Vol I: 126-168). If a testing laboratory finds the creatinine 

level is 20 milligrams per decilite_r or less, which Respondent's was, then the 

laboratory auto:matically also does a specific gravity test. (Tr. Vol 1: 127). 

32. The U.S. Department of Health and Human Services ("DHHS") published 

Program Document #35, which requires drug testing laboratories to mark the 

"Test Not Performed" box on the CCF; this indicates that the second confirmatory 
MCDONALD 16 

test was not performed, and find that a urine specimen is "substituted" (i.e., the 

specimen does not contain the laboratories' clinical signs or characteristics found 

in normal human urine) if the creatinine concentration is equal to or less than (:0. 5 

mg/ dL and the specific gravity is equal to or less than (:0_1.001 or equal to or 

greater than (.:::} 1.020. Respondent's urine sample was outside normal limits for 

both. (I.O. Exhibit 9;R. Exhibit 10). 

33. The "substituted~' urine-specimen criteria requ!!e~~:ll.!_~a_se~tC!l:>lish~_d_by DHHS _ 

in careful and deliberate consultation with U.S. Department of Transportation 

("DOT"), only after an extensive review and study of medical, clinical and forensic 

toxicology literature and review and study of recommendations from the 

Substance Abuse and Mental Health Services Administration Drug Testing 

Advisory Board was conducted. (Jd.). 

34. The relevant medical or scientific studies, including random clinical studies, 

studies on medical conditions (such as diabetes insipidus) resulting in severe 

overhydration or polyuria, 9-nd water loading studies, establish that the 

"substituted" urine specimen criteria established by DHHS and/ or DOT is 

scientifically or medically valid and reliable. (I.O. Exhibit 9-11). 

35. According to Respondent's paid expert's unsupported opinion, only 

approximately 2.5% of the population, who have not tampered or substituted their 

urine specimen, will produce a creatinine concentration ~ 5 milligrams per 

deciliter and a specific gravity level< 1.001 or=:: 1.020. In cases where a very low 

urine creatinine concentration and urine specific gravity is produced which satisfy 
.MCDONALD 17 

the DHHS "substituted" urine specimen criteria, the donor is often suffering from 

advanced stages of disease. (Id.; R. Exhibit 18; Tr. 156-157, 178-181, 227, 290). 

36. On August 9, 2000, Dr. David M. Katsuyama, M.D. of Greystone Health Science 

Corp. ("Greystone"), serving as the assigned contract Medical Review Officer 

("MRO"), reviewed the collection document and laboratory reports and results of 

this specimen with identification number 12134840 and Respondent's social 

security number .. Pursttel_l1~~~-Q_Qr ~I!lemgrandum dated September 28 r1-998 ·· 

concerning MRO Guidance for Interpreting Specimen Validity Test Results, Dr. 

Katsuyama, M.D. and MRO reported on the CCF in the remarks section that the 

urine specimen was" substituted-refused to test." This MRO signed this 

document also. He is a trained and experienced MRO who has testified before me 

in many prior cases. I find his reports as an MRO credible and reliable. (I.O. 

Exhibit 3; R. Exhibit 9; Tr. Vol II: 20-32, 110, 122). 

37. Since the laboratory's initial test revealed that the urine specimen was substituted, 

Dr. Katsuyama, in accordan~e with the applicable rules and regulations at the 

time, did not interview Respondent McDonald. (Tr. Vol II: 28, 111, 122). The 

Doctor was following the usual rules and re'gulations in effect at the time, 

following such laboratory test results. 

38. Thereafter, Mr. George M. Ellis, Jr., the President of Greystone Health Sciences 

Corporation, reported Respondent's substituted urine specimen test results by the 

laboratory and the assigned MRO to the Coast Guard in a letter dated August 9, 

2000. (I.O. Exhibit 1; Tr. Vol II: 20). 
MCDONALD 18 

39. On August 31, 2000, just one month later after submitting his first urine sample, 

Respondent McDonald submitted his second urine sample for another drug test in 

which he produced a normal creatinine concentration. His creatinine 

concentration was recorded as 54 mg/ dL and the results for the presence of drugs 

were negative. This was while he admitted he was generally taking the same 

medicines. (R. Exhibit 7-8; Tr. Vol I: 153-154, Tr. Vol II: 120, 148, 260-262). 

40. On March 12, 2001, in prep.ara~o!l fe>rlitigati_on_and_these hear-ings before the 

Administrative Law Jud-ge, Respondent McDonald was interviewed, tested, and 

assessed by a substance abuse professional ("SAP"). The SAP stated after 

interviewing and questioning Respondent that Respondent McDonald had a low 

probability of having a substance abuse dependence problem and it is very 

unlikely that Respondent McDonald will develop a substance abuse problem in 

the future. (I;O. Exhibit 12; R. Exhibit 1, 5; Tr. Vol III: 21-28, 44-45). 

41. During the substance abuse interview, Respondent McDonald did not reveal to 

this SAP that Respondent W!).S on any type of medication, such as Prozac, eye 

drops or antihistamine. As a matter of fact, Respondent denied to the SAP being 

on any medication which was not what he testified to at this hearing. These 

contradictory statements show and demonstrate a lack of credibility by 

Respm.)dent. (Tr. Vol III: 37-39, 43-44). 

42. In addition, this SAP failed to consider that Respondent McDonald scored fairly 

high during the SAP's test on the "defensiveness" component of the Substance 

Abuse Subtle Screening Inventory ("SASSI-3"). Respondent's elevated 
'MCDONALD 

defensiveness score on the SASSI-3 again calls into serious question the veracity 

and credibility of his responses to this SAP and at this hearing under oath before 

the Administrative Law Judge. (I.O. Exhibit 12; Tr. Vol III: 28-29). 

19 

43. Respondent McDonald is and has been in fairly good health and does not suffer 

from any advance stage of disease such as diabetes, chronic coronary disease, or 

any other disease. Consequently, there is no medical explanation for Respondent 

McDonald to produce a-very unu~ua~ urine sc:t_nJple_withnon-human ul'ine-- -

creatinine concentration-of 3 mg/ dL and also a non-human urine combined 

specific gravity of 1.001. (Tr. Vol II: 132-133, 145-151, 290). He was so found on 

July 31, 2000, when tested for employment as an officer in the U.S. Merchant 

Marine. Yet only one month later in his attempt to later show no substitution, he 

tests normally on August 31, 2000. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW' 

1. Respondent Dominic D. McDonald and the subject matter of this hearing are 

properly within the jurisdiction of the United States Coast Guard in accordance 

with 46 U.S.C. Chapter 77, including§ 7703. 

2. At all relevant times, Respondent McDonald was acting under the authority of his , 

Coast Guard issued license and document as the term is defined in 46 C.F.R. § 5.57 

when he took a required pre-employment drug test by providing his urine sample 

for tests by a federally certified laboratory on July 31, 2000 in order to obtain a 
MCDONALD 20 

drug-free certificate from MM&P and bid on union contract jobs as an officer or 

mate on U.S. Merchant ships shipping to various ports throughout the world and 

the U.S.A. 

3. Respondent McDonald's urine specimen was collected by a trained and 

experienced collector on July 31, 2000 and subsequently analyzed by Quest 

Diagnostics certified laboratory in accordance with 49 C.P.R. Part 40 and other 

federal requirements and guidelines. 

4. The Coast Guard has PROVED by a preponderance of reliable, probative, 

substantial and credible evidence that Respondent McDonald committed 

misconduct in violation of 46 C.P.R.§ 5.27 and 46 U.S. Code Chapter 77, by 

providing a urine specimen on July 31, 2000 for required pre-employment drug 

testing which was reported by the certified drug testing laboratory and the 

Medical Review Officer as being "substituted: inconsistent with normal human 

urine," thus constituting a refusal to test under 46 C.P.R. Part 16, including§ 

16.105. 

5. The Respondent has failed to rebut or otherwise discredit the Coast Guard's I.O.'s 

case and proof. 

6. The testimony of Respondent's witness and personal physician, Dr. Jack Wayne 

Janoe, M.D., concerning Respondent McDonald's blood tests measuring creatinine 

concentration is deemed immaterial and irrelevant. Dr. Janoe admitted and 

testified that comparing creatinine concentration from a blood test and that from a 

urine test is like comparing "apples to oranges." 
MCDONALD 21 

7. The totally unsupported opinion testimony of Respondent's witness, Dr. Anthony 

V. Colucci, Sc. D., concerning low normal creatinine concentration and specific 

·gravity is found not credible. The so called study was unreported and not 

published upon which Dr. Colucci's expert opinion is based has not been peer 

reviewed and peer supported and is not consistent with the extensive clinical and 

forensic studies and reports that establish the validity and reliability of the 

"substituted" uril)e specimim criteria es~ablis~ed by U.~~ [)HHS_in CC1refulstt.l9y_ 

and consultation with U:S. DOT. 

8. The opinion testimony of Dr. Colucci concerning the side effects of 

Respondent's medication on his creatinine concentration and specific gravity is not 

given any weight. Dr. Colucci's testimony is inconsistent with and directly 

contrary to the testimony of Dr. Janoe, who testified that the medication would not 

have caused Respondent's creatinine concentration and specific gravity levels to 

drop well below the DOT and DHHS cut-off normal levels for creatinine 

concentration and specific gravity. Moreover, except for his own oral opinion, 

there is no scientific or ot~er basis that supports Dr. Colucci's claim. This scientist 

was paid thousands of dollars to testify on Respondent's side of the case. His 

credibility is found questionable. 

9. Pages 34 through 43 of Respondent Exhibit 17, which shows that one of the less 

common side effects of Timolol Maleate Oral (i.e., tablets) that has been clinically 

reported is urination difficulty, is given little weight. The evidence shows that 

Respondent McDonald was using eye drops, which, when used in combination 
MCDONALD 

with the Deconamine SR, could have caused him to suffer eye pain. There is no 

evidence that the eye drops would have caused Respondent to experience 

difficulties urinating. 

10. The testimony of the SAP, Kurt 0. Schenker, that Respondent has a low 

probability of having a substance abuse problem is given little weight. The 

evidence shows that Mr. Schenker did not consider all factors in reviewing the 

results of his ow!). substance abuse examinati<:m_ . .Resp_on_d~nt either lied in. our_ 

hearing or to Mr. Schenker when he denied to him that Respondent was on 

22 

medication. Respondent's contention at the hearing and before was that he was on 

about three (3) medications and taking one (1) vitamin. Therefore, the test results 

and the conclusions of Mr. Schenker are found not reliable. 

11. Respondent McDonald's uncorroborated testimony that he may have been taking 

Zocor to lower his cholesterol when he took the pre-employment drug test on July 

31, 2000 is based on speculation and conjecture, and thus, it is rejected. Neither Dr. 

Janoe, Respondent's own pl:ysician, nor any of the other witnesses ever testified 

that Respondent was taking Zocor on July 31, 2000. Moreover, during Respondent 

McDonald's testimony, he revealed that he could not recall whether he was taking 

Zocor on July 31, 2000. Respondent's credibility leaves much to l;>e desired. 

12. Neither the DOT memorandum dated December 7,1993 concerning reporting 

abnormal test results and the analysis for presence of adulterants nor DOT's most 

recent amendments to the drug testing regulations codified at 49 C.P.R. Part 40, 

which became effective later on January 18, 2001, apply in this case. 
MCDONALD 23 

OPINION 

As a preliminary matterL it is necessary to clarify which drug testing procedures 

governing urine specimen validity testing applies in this case. DOT's memorandum 

dated December 7,1993, which authorized employers to obtain a urine specimen under 

direct observation if the laboratory analysis revealed that the last urine specimen 

collected on a previous occasion had a creatinine concentration below .2 g/L or, stated 

' .. -- I 

I ! - .. ____ otherwise, 20mg/-dL and a-specifiegravity of less than 1.003, does rtot applyintfiis 

case. (I.O. Exhibit 9). The 1993 memorandum was later superceded by: (a) DHHS 

Program Document #35 issued on September 28, 1998; (b) DOT's complementing 

memorandum dated September 28,1998 concerning MRO Guidance for Interpreting 

Specimens Validity Test; and (c) the clarifying DHHS Program Document #37 issued on 

July 28, 1998. Thus, it is immaterial that under the older 1993 memorandum, this case 

would not have been reported to the Coast Guard. In 1993, they may not have as 

carefully checked the creatinine and specific gravity for substitutions. The rules, 

guidelines and regulations had been amended before July 31,2000, when Respondent 

gave his urine sample for laboratory testing. Those that were in effect at the time and 

that were applicable were followed 1n this case on and after July 31, 2000. 

Moreover, the DOT's amended drug testing regulations published in the Federal 

Register on December 19,2000, referred to by the Respondent's counsel during the 

hearing also do not apply in this case. Generally speaking, there is a strong 

presumption that regulations are prospective in nature. The United States Supreme 
·MCDONALD 24 

Court has held that "[r]etroactivity is not favored in the law. Thus, congressional 

enactments and administrative rules will not be construed to have retroactive effect 

unless their language requires this result." Bowen v. Georgetown Univ. Hasp., 488 U.S. 

204, 208 (1988). In other words, absent express language or regulatory history 

indicating otherwise, regulations are presumed to address the future not the past. 

Union Pac. R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199 (1913). 

Here, a review of the·I,JOT amendments to the drug tes~ng reguJationsto be 

codified at 49 C.P.R. Part 40 indicates that said regulations do not apply retroactively. 

See 65 Fed. Reg. 79462. The plain language of the amended DOT regulations and the 

DOT's preliminary statement published in the Federal Register indicate that the 

regulatory framers intended the amended drug testing regulations to be given 

prospective or future application. Therefore, the interim 49 C.F.R. Part 40 regulations, 

which went into effect on January 18,2001, and the successor 49 C.F.R. Part 40 

regulations, which went into effect on August 1, 2001, do not apply in this case. 

The decision in this case i~ based on the federal drug testing rules,laws, policies 

and guidance that were in effe~t on July 31, 2000 and August 2000, when Respondent 

provided this urine specimen in question for drug testing. Some of the then applicable 

Federal Drug Testing Directives, include: (1) DHHS Program Document #35 issued on 

September 28,1998; (2) DOT's complementing memorandum dated September 28,1998 

concerning MRO Guidance for Interpreting Specimens Validity Test; and (3) the 

clarifying DHHS Program Document #37 issued on July 28, 1998. These were all issued 
MCDONALD 25 

and in effect and being followed well before Respondent provided his urine sample for 

testing by a federally certified laboratory. 

In these proceedings, the burden of proof is on the Coast Guard to establish the 

allegations contained in the I.O' s Complaint by a preponderance of reliable, probative, 

substantial and credible evidence. 5 U.S.C. § 556(d)(2000); 33 C.F.R 20.709 (2000); 

Appeal Decision 2485 (YATES) (citing Steadman v. SEC, 450 U.S.91 (1981)). The 

threshold level of proof is met if the Coast Guard establi~h~s that the <;xistence_ofa fact 

is more probable than its nonexistence. The U.S. Supreme Court has so ruled in 1993. 

Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602,622 

(1993). The Coast Guard may satisfy its burden by presenting a case based on either 

direct or circumstantial evidence. Appeal Decision 1930 (CRUZ). Once the burden of 

proof has been satisfied by a preponderance of the evidence, the burden of producing 

contrary evidence shifts to the Respondent to rebut or discredit the Coast Guard's 

evidence. Steadman v. SEC, 450 U.S. at 100. 

Misconduct is defined as "_human behavior which violates some formal, duly 

established rule." 46 C.P.R. 5.27 (2000). The act in this case constituting Misconduct is 

Respondent McDonald's submission of a substituted urine specimen on July 31, 2000 

during a pre-employment drug test, which was required by MM&P for the issuance of a 

drug-free certificate and for Respondent to be permitted to bid on union contract jobs. 

A certified laboratory analysis of Respondent's submitted urine specimen revealed that 

( 

the specimen was not consistent with "normal human urine" because the creatinine 

concentration was 3 mg/ dL and also the specific gravity was 1.001. 
MCDONALD 26 

DOT rules and regulations authorize validity testing of the donor's urine sample 

by the inspected and certified laboratory of urine specimens during the drug testing 

process for a determination of specific gravity, creatinine concentration, or the presence 

of adulterants. 49 C.P.R. § 40.21(d) (2000). Pursuant to the authority contained in: (a) 

Presidential Executive Order 12564 dated September 15, 1986, codified in 5 U.S. C. § 7301 

note; (b) the Mandatory Guidelines for Federal Workplace Drug Testing Programs 

published in 59 Fed. R~g. 29908 on June 9, 199_1:; '!11d (c) DOT drug testing regulations, . 

codified at 49 C.P.R. Part 40, DHHS established validity testing of urine specimen 

guidance for such laboratories. (I.O. Exhibit 9; R. Exhibit 10). DHHS Program Document 

#35 characterizes and establishes any urine specimen with a creatinine concentration of 

equal to or less than (or ,:0 5 mg/ dL and a combined specific gravity of equal to or less 

than (.::0_ 1.001 or equal to or greater than (or~ 1.020 as a "substituted" urine specimen 

not consistent with normal human urine. (Id.). Medical Review Officers were at that 

time directed by DOT and/ or DHHS to treat all urine samples that test within the 

"substituted" urine specimen scil~ntific criteria as a refusal to test. (J.O. Exhibit 9; R. 

Exhibit 9). 

The phrase "refuse to submit" a proper urine specimen is defined in Coast Guard 

chemical testing rules codified at 46 C.F.R. § 16.105 (2000) as follows: 

Refuse to submit means that a crewmember fails to provide a urine sample as 

·required by 49 C.F.R. part 40, without a genuine inability to provide a specimen 

(as determined by a medical evaluation), after he or she has received notice of the 

requirement to be tested ... , or engages in conduct that clearly obstructs the 

testing process," such an act is deemed a refusal to submit. 46 C.F.R. § 16.105 

(2000). (Emphasis supplied). 
MCDONALD 27 

A determination by a federally certified drug-testing laboratory that an individual's 

urine specimen is "substituted" serves as prima facie evidence that a Respondent 

refused to submit to chemical drug testing within the meaning of 46 C.P.R.§ 16.105 

(2000). 

The evidence supporting a f!nding of Misconduct establishes that Respondent's 

urine specimen was collected and analyzed by a federally certified drug-testing 

laboratory in accordan.ce with 49 C.P.R. Part 40. 'J'he results of thelaboratori s tests . 

revealed that the urine specimen was "not consistent with normal human urine." 

Respondent provided what was supposed to be his urine sample from behind 

closed doors of a restroom. Trained and experienced urine collector Ms. Rodriguez 

testified that she properly collected a urine sample from Respondent on July 31, 2000. 

(Tr. Vol I: 113-120). The specimen looked like human urine and the specimen was 

within the acceptable temperature range. (I.O. Exhibit 2, 3;Tr. Vol I: 120). Respondent 

McDonald testified that the urine specimen he gave her was poured and divided into 

two specimen bottles, which were sealed in his presence with tamper-evident seals and 

the seals were initialed by Respondent. (Tr. Vol. II: 288-289). Ms. Rodriguez the 

collector and Respondent McDonald both completed the official collection form, the 

CCF, certifying that the collection was performed in accordance with all Federal 

requirements. (I.O. Exhibit 2, 3). Thereafter, Ms. Rodriguez released the sealed urine 

specimen bottles to a courier for direct delivery to Quest Diagnostics, a federally 

certified urine-testing laboratory. (Id.). 
MCDONALD 28 

Mr. James A. Callies, the Scientific Director for Quest Diagnostics Laboratory, 

testified that the chain of custody for Respondent McDonald's urine specimen remained 

intact throughout the entire laboratory testing process. The evidence shows that 

Respondent McDonald's urine specimen was received by Quest Diagnostics the next 

day on August 1, 2000 and was assigned a laboratory accession number. This is the 

third of three (3) identifying numbers of Respondent's urine specimen. The other two 

(2) identifying numbers are Respondent's social security number and the specimen 

identification number from tfie official urine collector form, the CCF. (I.O. Exhibit 3, 5; 

Tr. Vol I: 128, 139). The initial screening test performed on Respondent McDonald's 

urine specimen revealed that the creatinine concentration was 3 mg/ dL and the specific 

gravity was 1.001. (I.O. Exhibit 3-5, 9; R. Exhibit 10; Tr. Vol I: 126-168). Based on the 

. laboratory results and pursuant. to DHHS Program Documents #35 and 37 (now in 

evidence), the laboratory's certifying scientist reported on the official form, the CCF, 

that the second test was not completed because "substituted" and reported that the 

specimen was substituted (i.e., n<?t consistent with normal human urine). (I d.). The 

Medical Review Officer (MRO) reviewed and verified the laboratory test results and, 

pursuant to DOT's MRO Guidance dated September 28,1998, Dr. David Katsuyama, 

M.D. and MRO for Greystone Health Sciences Corporation determined and reported 

that the Respondent's specimen was s;ubstituted and constituted a refusal to test. (I.O. 

Exhibit 3, 9; R. Exhibit 9; Tr. Vol II: 20-32, 110, 122). 

There is no credible evidence that there was a break in the chain of custody in 

this case or either the collector or the drug-testing laboratory jeopardized the integrity 
MCDONALD 29 

of Respondent McDonald's urine specimen, the Coast Guard's case is found proved. 

The mere fact that the Medical Review Officer did not interview Respondent McDonald 

before making a final determination does not invalidate the laboratory's tests. Under 

DOT and/ or DHHS drug testing rules and regulations applicable at that time, the 

Medical Review Officer was not required to interview the Respondent prior to making 

a final determination. The MRO received the laboratory's results and then confirmed 

them by making his report on the CCF and dating and signing his signature. This he 

did. A Medical Review Officer was then only required to conduct an interview of the 

urine donor if a non-substituted or normal human urine specimen tested positive for 

the presence of drugs. 49 C.P.R.§ 40.33 (2000).5 

The Coast Guard appropriately relies on the DHHS' definition of 11 substituted" 

urine specimen and the Medical Review Officer's determination to establish that , 

Respondent McDonald refused to submit a proper urine specimen to laboratory 

chemical testing thereby committing Misconduct in violation of 46 U.S.C. § 7703(1)(B) 

and 46 C.P.R. § 5.27. The "substituted" urine specimen criteria, was carefully 

constructed by DHHS in consultation with DOT only after conducting an extensive 

review and study of clinical and forensic toxicology findings, reports and publications, 

which all established that the 11 substituted" urine specimen laboratory criteria. 

5 Under the amended DOT regulations, the medical review officer is now required to verify testing results involving 

adulterated or substituted specimens and offer the individual an opportunity to provide a medical explanation for the 

laboratory flnding regarding the adulterant or the creatinine and speciflc gravity for the specimen. See 65 Fed. Reg. 

79520 and 79543 (49 C.F.R. § 40.215, which became effective on January 18,2001, or49 C.F.R. § 40.129, which 

became effective on August 1, 2001 ). These were not in effect on July 31, 2000, when Respondent provided a 

substituted urine sample. 
MCDONALD 30 

represents a specimen condition that is 11 not consistent with normal human urine." (I.O. 

Exhibit 9-11). 6 

More specifically, DHHS reviewed and examined forty-seven (47) scientific 

studies, including random clinical studies, studies on medical conditions (such as 

diabetes insipdus) resulting in severe overhydration or polyuria, and water loading 

studies. (I.O. Exhibit 9). Those forty-seven (47) studies and reports established clearly 

the validity and reliability of-the "substituted" specimen criteria used by the drug 

testing laboratories. (Id.). In addition, at the hearing in the instant case, I took judicial 

notice of I.O. Exhibit 10, which is a reported study and summary review of seventy-five 

(75) clinical and forensic toxicology studies and reports, compiled and reported by 

Janine Denis Cook of the University of Maryland, School of Medicine, et. al. published 

in the Journal of Analytical Toxicology on October 2000, which seventy-five (75) studies 

g~ve further convincing support for the "substituted" urine specimen criteria used by 

this certified laboratory in this case under consideration. 

Respondent McDonald's c_ontention that he did not substitute or otherwise 

tamper with his submitted specimen is found rejected. The Respondent's expert 

witness, Dr. Colucci, opined at the hearing without showing peer agreement nor any 

published reports that agreed with his theory or claim that very few people (i.e., 

6 This "substituted" specimen defmition has been adopted and incorporated into DOT's amended drug testing 

regulations codified at 49 C.F.R. Part 40, which first went effect on January 18, 2001. See 65 Fed. Reg. 79519, 

(Dec. 19, 2001) (to be codified at 49 C.F.R. § 40.209(b)). As of August 1, 2001, the entire Part 40 regulations were 

revised and renumbered. "Substituted" specimen is now defmed in 49 C.F.R. § 40.93(b). See 65 Fed. Reg. 79540. 
·MCDONALD 31 

approximately 2.5% of the population), who have not tampered with or substituted 

their urine specimen, will produce a creatinine concentration and specific gravity that 

meets the DHHS 11 substituted" urine specimen laboratory criteria. (R. Exhibit 18; Tr. 

156-157, 178-181, 227, 290). In cases where both a very low creatinine concentration and 

specific gravity is produced which satisfies the. DHHS "substituted" urine specimen 

criteria, the urine sample donor is usually suffermg from advanced or serious stages of 

disease. (Id.; I.O. Exhibit 10). -No evidence has been presented that provides a sound 

medical or scientific explanation for Respondent McDonald having both a low urine 

creatinine concentration as well as a low urine specific gravity. It is also interesting to 

note and compare that Respondent was able to produce a urine specimen with normal 

creatinine concentration and urine specific gravity only one month later, on August 31, 

2000, while taking the same claimed medications. 

The evidence shows that, to date and on July 31, 2000, Respondent McDonald 

was in fairly good health. (Tr. Vo_l II: 132-133, 145-151, 290). Although Respondent 

McDonald claimed he was taking several medications that would or could have made it 

difficult for him to urinate on demand, none of the medicines substantially reduced Mr. 

McDonald's creatinine concentration and specific gravity to the point in which it would 

have been deemed a 11 substituted" urine specimen under applicable Federal Drug 

Testing Directives. (R. Exhibit 12, 13, 17; Tr. Vol II: 132-133, 138-139, 145-151). 

Respondent's own witness and personal physician, Dr. Janoe, even testified that Mr. 

McDonald was capable of producing urine at normal elemental levels. (Tr. Vol II: 145-
ivfCDONALD 32 

151). Respondent McDonald's subsequent drug test on August 31,2000, in which his 

creatinine concentration was recorded at 54 mg/ dL, provides further evidence that he is 

capable of producing creatinine concentration at normal human urine levels. (R. Exhibit 

7-8; Tr. Vol I: 153-154; Tr. Vol II: 148, 260-262). 

Moreover, although Respondent McDonald may have consumed a large amount 

of water and liquids prior to the drug test on July 31, 2000, the evidence adduced at the 

hearing shows that drinking exc-essive amounts of water or other liquids would not 

have changed the creatinine concentration and also specific gravity to a point in which 

it satisfied the "substituted" urine specimen requirements. In the DHHS literature 

review of reports of medical overhydration or drinking excessive amounts of water or 

liquids studies, no urine specimen was identified in which the urine creatinine 

concentration and urine specific gravity satisfied the "substituted" urine specimen 

requirements or criteria. (I.O. Exhibit 9). The literature review by DHHS of "water 

loading" studies also revealed that no urine specimen was identified with a urine 

creatinine concentration less tha~ or equal to (S 5 and also at the same time a specific 

gravity equal to or less than (.::0,1.001 or equal to or greater than(~ 1.020. (Id.). These 

findings are further supported by DOT's study of paired measurements of creatinine 

. and specific gravity after water loading or drinking excessive amounts of water and Ms. 

Cook's article published in the Journal of Analytical Toxicology, mentioned above of 

seventy-five (75) studies. (I.O. Exhibit 10 and 11). 

As such, the very unsupported opinion of Respondent's expert witness, Dr. 

Colucci, that an individual can fall within the "substituted" urine specimen category at 
MCDONALD 33 

any given time and Respondent's medications combined with his consumption of a 

large amount of water and liquids caused this result is incredible and is rejected. The 

study upon which Dr. Colucci's expert opinion is based has not been reported or peer 

reviewed and is not consistent with numerous relevant scientific studies, which all 

establish that a creatinine concentration_::: 5 mg/ dL and a specific gravity of_::: 1.001 or~ 

1.020 unequivocally represents a specimen that is not consistent with normal urine of a 

normal healthy human being. See these U.S. Supreme Court cases, Daubert v. Merrell 

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Company v. Joiner, 522 

U.S. 136 (1997); Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999); Federal Rules of 

Evidence, including Rules 104 and 702; and the U.S. Administrative Procedures Act, 5 

U.S.C. 551-559. 

Respondent has failed to rebut or otherwise discredit the evidence presented by 

the Investigating Officers. The Investigating Officers' allegation of Misconduct is found 

proved by a preponderance of reliable, probative, substantial and credible evidence. 

In determining the appropriateness of a sanction, the administrative law judge 

has exclusive authority and discretion. See 46 C.P.R. § 5.569(a); see also Appeal 

Decision 2427 (JEFFRIES), Appeal Decision 2452 (MORGANDE). Except for acts or 

offenses for which revocation is mandatory, the presiding administrative law judge 

may consider both aggravating and mitigating factors that include: 

·Remedial actions which have been undertaken independently by the respondent; 

Prior record of the respondent, considering the period of time between prior acts 

and the act or offense for which presently charged is relevant; and 

Evidence of mitigation or aggravation. 
MCDONALD 34 

See 46 C.P.R.§ 5.569(b). Although the Table of Suggested Range of an Appropriate 

Order ("Table") codified at 46 C.P.R. § 5.569( d) recommends 12-24 months' suspension 

for refusal to properly submit to laboratory testing, the Commandant has recognized 

that the Table is not binding authority on an administrative law judge. Appeal Decision 

2578 (CALLAHAN). 

The undersigned is not insensitive to the facts that this Respondent McDonald: 

(1) has no prior history of violations of Coast Guard laws or regulations; (2) has never 

tested positive for dangerous-drugs; (3) does not have a history of drug use or abuse; 

and (4) only needs an additional 0.65 years of credited maritime services to qualify for a 

retirement pension from MM&P. Therefore, revocation, as proposed by the 

Investigating Officers will not be Ordered. Instead, Respondent's said license and 

document will be subject to twelve (12) months' outright suspension and followed by 

twelve (12) months on twelve (12) months' probation. 

CONCLUSION 

The Investigating Officers have proved by a preponderance of reliable, 

probative, and substantial evidence that Respondent Dominic McDonald acted tinder 

the authority of Merchant Mariner's License Number 788349 and Merchant Mariner's 

Document Number 446-76-9713 when he provided a substituted urine specimen for preemployment testing on July 31, 2000. This act constitutes a refusal to test under 46 

C.P.R.§ 16.105 and is misconduct under 46 C.P.R. § 5.27. Thus, resulting in a violation 
·MCDONALD 

of 46 U.S.C. § 7703(1)(B) and the underlying regulations. After careful review of the 

facts and circumstances of this case, it is determined that outright suspension coupled 

with additional probation is the most appropriate order. The Investigating Officer's 

Complaint is found proved. 

ORDER 

35 

IT IS ORDERED THA-'F delivery of this Decision and Order on Respondent or 

his counsel shall constitute service and shall serve as notice to Respondent of his right 

to appeal, the procedures for which are set forth in Attachment A and made part of this 

Order. 

Absent an appeal taken by either party, this decision shall become the final 

action of this governmental agency 30 days after the date of issuance as provided in 33 

C.P.R.§ 20.1101. 

IT IS HEREBY ORDERED THAT Merchant Mariner's License Number 788349, 

Merchant Mariner's Document Number 446-76-9713, and all duplicates thereof and all 

other valid documents and cerlliicates issued to Dominic D. McDonald by the United 

States Coast Guard or any predecessor authority and now held by Respondent are 

hereby SUSPENDED OUTRIGHT for TWELVE (12) MONTHS beginning on the date 

said license and document are delivered to the Investigation Department at Marine 

Safety Unit in the port of Galveston, Texas. 
MCDONALD 36 

IT IS FURTHER ORDERED THAT Mr. McDonald is to immediately deliver by 

mail, Federal Express or in person, the license and document to the Coast Guard 

Investigating Officers in Galveston, Texas, and he is no longer authorized to serve 

under these Coast Guard credentials aboard any vessel registered in the United States 

for the said twelve (12) months' period. 

IT IS FURTHER ORDERED THAT followingthe period of OUTRIGHT 

SUSPENSION, Mr. McDonald's license and document shall be returned to Respondent 

and he will be required to serve an additional period of PROBATION for an additional 

TWELVE (12) MONTHS, which if violated by Respondent's negligence or misconduct, 

his said credentials will be suspended for an additional twelve (12) months. If a drug 

case violation is later proved against him, his said credentials will be Revoked. 

IT IS FURTHER ORDERED THAT any failure on the part of Respondent to 

comply with this Order or any subsequent violations of any laws or regulations proved 

by any Coast Guard Investigating Officer as occurring during the period of probation 

may result in Respondent's licen~e and document being further suspended. 

Done and dated this C/CZ tt1 day o£k'1f:fff'V 2001. 

THOMAS E. MCELLIG 
... DEC.-27'01(THU) 15:15 ADMIN LAW JUDGE TX. TEL:713 948 3372 

UNITED STATES OF AMERICA 

DEP ARMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD .. · ····-

!.' .. ,

~- ' ',.._ j 

~- ...... ) 

..... 

UNITED ST ATBS OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

Docket No. CG S&R 01~.0118. :~ 

Case No. PA00001665 

DOMINIC MCDONALD 

Res ondent 

P. 003/010 

-· , ... , 1 

I '. 

r··.· 

' I 

· ..... 

ORDER DENYING RESPONDENT'S MOTION TO ALTER OR AMEND DECISION 

AND ORDERi ORDER GRANTING THE COAST GUARD1S MOTION TO ALTER 

AND AMEND DECISION AND ORDER; AND ORDER GRANTING 

RESPONDENT'S ATTORNEY LEAVE TO ENTER AN APPEARANCE 

On December 6, 2001, Respondent Dominic McDonald filed a Motion to Alter or 

Amend the November 9, 2001 Decision and Order issued by the undersigned in the 

above captioned case. The Decision was based on a finding that the Coast Guard had 

proved that Respondent McDonald wrongfully refused to submit to a required 

chemical test for dangerous drugs by providing a substituted urine specimen for pr.eemployment drug screening on July 31, 2000 in violation of 46 U.S.C. § 7703 and 46 

C.F.R. Parts 5 and 16. The Orde.r suspended Respondent McDonald's Merchant 

Mariner's License and Document for a period of twelve (12) months beginning on the 

date said license and document was delivered to the United States Coast Guard Marine 

Safety Unit in Galveston, Texas. The Order also imposed an additional12 months of 

probation following expiration of the 12-month period o.f. outright suspension. 
DEC. -27' 01 (THU) 15:15 ADM l N LAW JUDGE TX. TEL:713 948 3372 P. 004/010 

In his December 6th motion, the Respo!ldent requests that the Decision and Order 

be modified so that the 12-month outright suspension begins Oil July 31, 2000. The 

Respondent argues that good cause exists to authorize him to return to work on 

probation because o£ the national emergency resulti!lg from the events of September 11, 

2001 and the critical shortage of licensed third mates needed to assist the United States 

Military Sealift Command in carrying fuel, supplies, and other material on board 

chartered International Organization of Master, Mates and Pilots ("MM&P") vessels to 

directly support United States military bases and operations overseas.l The Respondent 

further argues that he is an excellent and reliable candidate for immediate return to 

work without further incident because of his long unblemished record of service and 

low probability of a having a substance abuse dependence problem.2 The Respondent 

further points out that he has not worked for the past eighteen (18) months and a 12-

month outright suspension of his license and document would result in the Respondent 

not working for a total o£ thirty (30) months, 

On December 12, 200t the Coast Guard .filed a motion in opposition to the 

Respondent's Motion to Alter or Amend the Decision and Order. The Coast Guard 

points out that Respondent McDonald intentionally maintained control of his license 

1 Respondent McDonald attached An affidavit Rigned under the penalty of perjury by Captl:lin Olen P, Banks, 

International Secrotary-Trt!a!lurer for MM&P to support this lilrgument. 

'Th., testimony of !he subsrance abuse professional ("SAP'') regarding the Responden~'li probability ofhaving a 

substance abuse problem was given little weigh and was tbund to be unreliable becaus.., the SAP failed to com;ider 

all factors in reviewing rhe rt~!'lu}ts of the sub!ltance abuse examination. USCG v. McPonrug, Docker No. CG S&R 

01-0l 18, ac 22 (November 9, 2001). More !ipecifically, the SAP failt'ld to consider the Respondents lllevated 

"defensiveness" score on the substance abuse examination in assessing Respondent McOan~lcl's probability of 

having a substance abuse problem. Furthennore, Mr. McDonald's inconsistent and contradictory res pons~ at the 

substance abu!le interview regarding use of medication and his te!ltimony during the hearing calls his credibility into 

question. Id, at 18-19. 

2 
DEC.-2i'01(THU) 15:15 ADMIN LAW JUDGE TX. TEL:713 948 3372 

and document until September 7, 2001 when the Respondent attempted to renew his 

license and document and the Regional Examination Center in Houston, Texas took 

physical possession of said license and document pending the outcome of the hearing. 

The Coast Guard moves that the November 9, 2001 Decision and Order be modified to 

permit the 12 month outright suspension to commence on September 7, 200t i.e., the 

day the Regional Examination Center in Houston, Texas took physical possession of 

Respondent McDonald's license and document. 

After careful review of the applicable law and facts of this case, including the 

parties' respective arguments and evidence in support thereof, the Respondent's 

Motion to Alter or Amend theN ovember 9, 2001 Decision and Order is DENIED. 

However, the Coast Guard's motion is well taken. The period of 12-month outright 

suspension shall be deemed to have commenced on September 7, 2001. 

(I) 

DISCUSSION 

In these proceedings, at any time, upon party motion and for good cause shown, 

an administrative law judge may issue an order rescinding an order suspending a 

merchant mariner's license and/ or document. 33 C.F.R. § 20.904. Selection of an 

appropriate order solely rests in the exclusive authority and discretion of the 

administrative law judge. 46 C.F.R. § 5.569(a); ~also AE:peal Decision 2427 

(IEFFRIESj; A1m.e§l Decision 2452 (MORGANDE). In determining, the appropriate 

order in this case, the undersigned took into consideration the fact that Respondent 

McDonald: (1) has no prior history o.f violations of Coast Guard laws or regulations; (2) 

has never tested positive for dangerous drugs; (3) does not have a reported history of 

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drug use or abuse; and (4) only needs an additional 0,65 years of credited maritime 

services to qualify for a retirement pension from MM&P. Based upon these 

considerations, the undersigned determined that an order at the lower end of the Table 

of Suggested Range of an Appropriate Order codified at 46 C.F ,R. § 5.569( d) was 

appropriate. 

The mere fact that Respondent has not worked in eighteen months beginning on 

July 31,2000 when he provided a substituted urine specimen for pre-employment drug 

testing does not justify redu.cing the order or otherwise providing Respondent with 

credit towards satisfaction of the November. 9, 2001 decision and order, The regulations 

clearly state that "{t]he time of any period of outright suspension ordered does not 

commence until the license, certificate or document is surrendered to the Coast 

Guard." 46 C.F.R § 5.567(e). The term "surrender" means to relinquish or give up 

possession or control to the Coast Guard either by order or voluntarily. See generally 

Webster's II New College Dictionary 1110 (Houghton Mifflin Co. 1995); ~also Blacks 

Law Dictionary 1444 (6l:h ed. 1990) (defining "surrender" as "to relinquish, to deliver 

into lawful custody, or to give up in favor of another"); 46 C.F.R. § 5.203(b)(2) (defining 

voluntary "surrender'' as a permanent relinquishment of all rights to the license, 

certificate or document}; Word v. United State, 223 F. Supp. 614,616 (S.D. All963). 

Here~ Respondent maintained physical possession and control of his license and 

docum~nt until September 7, 2001 when the Coast Guard Regional Examination Center 

in Houston, Texas took actual possession and control of sa.id license and document. 

Respondent McDonald maintained custody of the license and document even though 

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he was presented with numerous opportunities to relinquish control of his merchant 

mariner's license and document. In maintaining custody of his Coast Guard 

credentials, Respondent McDonald was cognizant that an adverse ruling could be 

rendered against him with respect to his license and document. Yet, Respondent 

McDonald held on to his license and document at his own expense and, thus, is not 

entitled to any credit for the period of time in which he did not work. The mere fact 

that Respondent McDonald did not, or otherwise could not, work under said license 

and document for 18 months is immaterial. The computation of the time period of 

outright suspension begins when the Coast Guard takes actual physical contr.ol and 

possession of the license, document. or certificate, which, in this case, occurred on 

September 7, 2001. 

Moreover, although the undersigned is acutely aware of the events of September 

11, 2001, at this juncture, I decline to reduce the 12-month suspension order based solely 

on the averment of Captain Banks. The Respondent has filed a notice of appeal and 

may explore other avenues permitting him to work pending resolution of the appeal. 

See 46 C.F.R. § 5.707. 

WHEREFORE, 

(II) 

ORDER 

IT IS HEREBY ORDERED that Respondent's Motion to Alter or Amend the 

November 9, 2001 Decisjon and Order in the above captioned case is DENIED. 

IT IS FURTHER ORDERED that the Coast Guard's Cross-Motion to Alter or 

Amend the November 9, 2001 Decision and Order in the above captioned case is 

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GRANTED. Merchant Mariner's License Number 788349 and Merchant Mariner's 

Document Number 446 76 9713, and all duplicates thereof and all other valid 

documents and certificates issued to Dominic D. McDonald by the United States Coast 

Guard or any predecessor authority is hereby SUSPENDED OUTRIGHT for TWELVE 

(12) MONTHS beginning on September 7,2001. Following the period of OUTRIGHT 

SUSPENSION said license and document shall be returned to the Respondent, who 

will be required to serve an additional TWELVE MONTHS PROBATION, which if 

violated by Respondent's negligence or misconduct will result in an additional twelve 

(12) months suspension. However, if a drug case violation is later provecl against the 

Respondent, his Coast Guard credentials will be revoked. 

IT IS FURTHER ORDERED THAT, while resolution of the appeal is pending in 

this case, Respondent may apply for temporary issuance of Coast Guard license or 

document in accordance with 46 C.F.R. § 5.707, 

IT IS FURTHER ORDERED THAT the Respondent's motion for leave to enter the 

appearance of William Hewig, III, Esq. as legal counsel is GRANTED. 

IT IS FURTHER ORDERED THAT, pursuant to 33 C.F.R. §§ 20.904(d) and 

20.1003(a)(3), the appellate brief must be received in the Docketing Center no later than 

60 days from the date o.f issuance of this order.. 

Done and dated this~ay of December. 2001 at Houston, Texas 

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DEC.-27'0l(THU) 15:15 ADMIN LAW JUDGE TX. TEL:713 948 3372 

c-· 

~=--l__::_-~---=--7·_· ~~- THOMAS .E. MCELL!GOT'f 

Administrative Law Judg 

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DEC. -27' 01 (THU) 15:15 ADMIN LAW JUDGE TX. TEL:713 948 3372 

Certificate of Service 

I hereby certify that I have this day served the foregoing documents upon the 

following parties and limited participants (or designated representatives) in the 

proceeding at the address indicated as follows: 

United States Coast Guard 

Marine Safety Unit 

Investigations Department 

Attention: Petty Officer Kenneth M. Bellino 

P.O. Box 0149 

Galveston, Texas 77553-0149 

(Certified Mail, Return Receipt Requested & Facsimile 409-766-5415) 

William Hewig, IIL Esq. 

Kopelman and Paige, P.C, 

Attorneys at Law 

31St. James Avenue 

Boston, MA 02116>-4102 

(Certified Mail, Return Receipt Requested & Facsimile 617-556-0007) 

Dominic McDonald 

5017 Sherman Blvd 

Galveston, Texas 77551-5956 

(Certified Mail, Return Receipt Requested) 

ALJ Docketing Center 

United States Coast Guard 

United States Custom. House 

40 South Gay Street, Room 412 

Baltimore, MD 21202-4022 

(Facsimile 410-962-1742) 

Done and dated this __ day of December 2001. 

JANICE M. EMIG 

Legal Assistant to 

P. 010/010 

Houston Administrative Law Judge 

8