UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

UNITED STATES OF AMERICA

UNITED STATES COAST GUARD

vs.

MERCHANT MARINER LICENSE

Issued to: WILLIAM S. MAIT

DECISION OF THE

VICE COMMANDANT

ON APPEAL

NO 268

This appeal is taken in accordance with 46 U.S.C. § 7701 et seq., 46 C.F.R. Part 5,

and 33 C.F.R. Part 20.

Bya Decision and Order (hereinafter "D&O") dated May 13, 2008, Coast Guard

Administrative Law Judge (hereinafter "AU") Bruce T. Smith dismissed the Coast

Guard's Amended Complaint alleging violation oflaw or regulation (for refusal to

submit to pre-employment drug testing) against William S. Matt (hereinafter

"Respondent"). The ALJ dismissed the Coast Guard's allegation upon finding that the

Coast Guard did not prove, "by a preponderance of the reliable and credible evidence and

testimony as taken from the record considered as a whole" that Respondent failed to

submit to Coast Guard mandated drug testing. [D&O at 16] The Coast Guard appeals.

PROCEDURAL HISTORY

The Coast Guard filed its original Complaint against Respondent with the Coast

Guard AU Docketing Center on July 5, 2007. [D&O at 2] Respondent filed an Answer

to the Complaint, denying all jurisdictional and factual allegations, on July 24, 2007. A

hearing was scheduled to be held in the matter on January 23, 2008. [Id.]
MATT NO.

• 1685

The hearing in the matter began on January 23,2008, at New Orleans, Louisiana

but was continued to allow Respondent to confer with newly obtained counsel from

Tulane Law School1 [D&O at 2-3; Order Granting Respondent's Motion for

Continuance]

The hearing in the matter reconvened on April 3, 2008, at New Orleans,

Louisiana. [D&O at 3) The Coast Guard introduced the testimony ofthree witnesses and

entered six exhibits into the record during the hearing. [Id.; Transcript (hereinafter "Tr.")

at 4-5] In addition to testifying on his behalf, Respondent introduced the testimony of

one witness and entered five exhibits into the record. [id.]

00 June 3, 2008, the Coast Guard filed its Notice ofAppeal in the matter. The

Coast Guard perfected its appeal by filing an Appellate Briefon July 14, 2008.

Respondent filed a timely Reply Brief on August 18, 2008'. Therefore, this appeal is

properly before me.

APPEARANCES: Respondent was represented by counsel from the Tulane Law

Clinic, Ms. Andrea Wilkes and Ms. Stacy Seicshnaydre Associate Professors, Mr. Greg

Euteneir, Mr. Annand Perry, Mr. Jason Kafoury and Mr. Jason Kuczek, Student

I Prior to the scheduled hearing, Respondent expressed a desire to be represented by counsel but informed

me AU that he was financially unable to secure representation. The AU informed Respondent that he

might be able to obtain free representation from law students involved with Tulane Law School's legal

representation clinic. Subsequently thereafter, students and faculty from the law clinic graciously offered

Respondent pro bono representation and entered their appearance, on behalfofRespondent. at the start of

the previously scheduled hearing.

2 In his Reply Brief, Respondent contends that this appeal should not be entenained because the Appeal

Brief filed by the Coast Guard was untimely. The record shows that the Coast Guard's Appeal Briefwas

due by close of business on July 14, 2008. The signed Certificate of Service attached to the Coast Guard's

Appeal Briefis dated July 14, 2008. The record shows that although the Appeal Briefwas faxed to the AU

Docketing Center at 5:47 p.m., on July 14, 2008, it was not stamped as received by Docketing Center

personnel until the following day. Given this evidence, I accept the Coast Guard's Appeal Brief as timely.

2
MATT NO. ~68 5

Attorneys. The Coast Guard Investigating Officers were LCDR Melissa J. Harper and

POI Cynthia Dubach efU.S. Coast Guard Sector New Orleans, Louisiana.

FACTS

This appeal ultimately turns on the factual sufficiency ofthe AU's detennination.

Therefore, the following summary offsets is based on a review ofthe entire record before

the All. At all times relevant to this proceedings, Respondent was the holder of a Coast

Guard issued Merchant Mariner License that authorized him to serve as a master ofsteam

or motor vessel ofnot more than 100 gross registered tons. [D&O at 4; Coast Guard

Exhibit 1, at 6]

On April 13,2007, Respondent drove approximately five hours from his home in

Ferriday, Louisiana, to Phil Guilbeau Offshore, in Galliano, Louisiana, in an attempt to

seek employment as a vessel Captain. [0&0 at 4; Tr. at 26, 143-45; Coast Guard Exhibit

1] Phil Guilbeau Offshore had employment opportunities, requiring a Coast Guard

license, and Respondent filled out an application for such a position with the company.

[D&O at 4; Tr at 26, 147; Coast Guard Exhibit 1] As a condition of employment with

Phil Guilbeau Offshore, Respondent was required to submit to and pass a pre·

employment drug test that was to be administered at Complete Occupational Health

Services, a short distance from Phil Guilbeau Offshore's offices. [0&0 at 4; Tr. at 29-

30,35-37,51,147]

Respondent arrived at Complete Occupational Health Services at approximately

11 :00 a.m. on April 13, 2007. [D&O at 4; Tr. at 149-50] Respondent signed in at

Complete Occupational Health Services and waited to take the drug test [D&O at 4; Tr.

at 151]

3
MATT • NO. 1685

Ms. Hailey Angelette, who was certified to work as a collector at Complete

Occupational Health Services on April 4, 2007, was the person responsible for

administering the pre-employment drug test to Respondent. [D&O at 5; Tr. at 60, 62,

110; Coast Guard Exhibit 2] On April 13, 2007, Ms. Ange1ette filled out a Federal Orug

Testing Custody and Control Fonn (hereinafter "OTCCF") for Respondent. [0&0 at 5;

Tr. at 63; Coast Guard Exhibits 3, 4a] At the hearing, Ms. Angelette testified that she had

no independent recollection ofthe Respondent's actions on April 13, 2007. [Tr. at 76-77]

As a result, Ms. Angelette's testimony was entirely derived from information contained

on the OTCCF. [0&0 at 5-6; Tr. at 76-77]

To complete the administrative portions ofthe DTCCF, Ms. Angelette obtained

Respondent's social security number and other pertinent information from files that were

maintained at Complete Occupational Health Services. [0&0 at 5; Tr. at 76-77]

Ms. Angelette indicated on the DTCCF that the first urine sample provided by

Respondent had no temperature and, subsequently wrote "Donor refused t ld

collectionIDonor discarded I" sample" on the OTCCF. [0&0 at 5; Tr. at 66-68; Coast

Guard Exhibits 3, 4a] The OTCCF further indicates that although Respondent discarded

his urine sample, that sample was delivered to the testing laboratory by DHL courier.

[0&0 at 5; Tr. at 106, 114-15; Coast Guard Exhibits 3, 4a]

Complete Occupational Health Services subsequently completed a final report

stating that Respondent refused a pre-employment drug test. [0&0 at 6; Tr. at 101-02,

107; Respondent's Exhibit A, at I] Although the final report contained the signature

stamp of a Medical Review Officer (hereinafter "MRO"), Ms. Angelette admitted that she

completed the fonn and acknowledged that a MRO did not review it prior to completion.

4
MATT NO. 1685

[D&O at 6; Tr. at 101-02, 107] Complete Occupational Health Services had no

documents from April 13, 2007, containing Respondent's signature or indicating that

Respondent attempted, in any way, to fake a drug test on that date. [D&O at 6; Tr. at 105,

109] The Coast Guard received Phil Guilbeau Offshore's letter reporting Respondent's

alleged refusal to submit to a pre-employment drug test sometime between May 14, 2007,

and May 23,2007. [D&O at 6; Tr. at 134; Respondent's Exhibit C]

BASES OF APPEAL

This appeal is taken from the AU's D&O which dismissed the Coast Guard's

Complaint upon finding that the record contained insufficient evidence to support a

conclusion that Respondent committed a violation oflaw or regulation. The Coast Guard

raises the following bases of appeal:

1. The ALl erred in finding that Respondent left the testing facility prior to

commencement ofhis scheduled pre-employment drug test in violation of

46 u.S.C § 7703, 46 CF.R. § 5.33 and 49 CF.R. § 40.191'; and

Il. The ALl erred in finding the DTCCF unreliable in showing that

Respondent commenced the test because ofinsignificant documentation

errors in light ofa wealth ofcase law to the contrary.

3 The issue as presented by the Coast Guard in their brief is misleading. The AU did not find that

Respondent violated 46 U.S.C. §7703, 46 C.F.R. §5.33 and 49 C.F.R. §40.l91; indeed, the AU found no

violation occurred. [0&0 at 15-16] The body of the Coast Guard's appeal briefreveals that the issue is

more accurately framed as: The ALl erred in finding that Respondent left the testing facility prior to

commencement ofhis scheduled pre-employment drng test, thw,' the Coast Guard met its burden ofproofin

proving violationsof46 V.S.C § 7703. 46 CF.R. § 5.33 and 49 CF.R. § 40.191. I will frame the issue in

this manner hereinafter in this decision.

5
MATT

Opinion

I.

NO.

The AUerred in finding that Respondent left the testing/acility prior to commencement

ofhis scheduledpre-employment drug test. thus the Coast Guard met its burden ofproof

in proving violations oj46 u.S.C § 7703, 46 CF.R. § 5.33 and 49 CFR. § 40.191.

On appeal, a party may challenge whether each finding of fact rests on substantial

evidence, whether each conclusion oflaw accords with applicable law, precedent, and

public policy, and whether the ALl committed any abuses ofdiscretion. See 46 C.F.R.

§ 5.701 and 33 C.F.R § 20.100 I. Under the governing standard ofreview on appeal,

great deference is given to the AU in evaluating and weighing the evidence. The AU's

findings of fact and determinations in this regard will not be disturbed and will be upheld

on appeal unless they are clearly erroneous, arbitrary and capricious, or based on

inherently incredible evidence. Appeal Decisions 2541 fRAYMOND) (citing Appeal

Decisions 2522 (JENKINS), 2492 (RATH), and 2333 (ALAYA)). See also 2628

(VILAS) ("Ifthe AU's findings are supported by reliable, credible evidence, they will be

upheld because he saw and heard the witnesses, even ifthere was evidence on which he

(or Isitting in his stead) might reach a contrary conclusion. Stated another way, I will not

substitute my findings of fact for the AU's unless the AU's [findings] are arbitrary and

capricious."). The findings of the AU need not be consistent with all evidentiary

material in the record as long as there is sufficient material in the record to support their

justification. Appeal Decisions 2395 (LAMBERT) and 2282 (LITTLEFIELD).

The requirements and procedures for pre-employment drug testing are set forth in

49 C.F.R. § 40.1 et seq. While it is true, as the Coast Guard contends, that 49 C.F.R.

6
MATT NO. ~685

§ 40.191(a)(2) mandates that the employee remain at the testing facility until the testing

process is complete, the regulation makes clear that "an employee who leaves the testing

site before the testing process commences (see § 40.63(c» for a pre-employment test is

not deemed to have refused to test." The drug testing process begins when the

employee-or the collector, in the employee's presence-breaks the seal on the collection

container. See 49 C.F.R. § 40.63(c). lfthe employee leaves at any time thereafter, he

will be deemed to have refused to take the drug test.

The Coast Guard contends, contrary to the AU's detennination, that the record

contains "substantial evidence" to support a conclusion that Respondent left the testing

facility after the testing process began-after the seal was broken-and, insists that the

AU should have found the violation oflaw or regulation charge proved. [Appeal Brief

at 6]

A careful review ofthe AU's D&O shows that he did not find the Coast Guard's

evidence persuasive. In that regard, the AU stated as follows:

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

prove any violation by a preponderance ofthe evidence. In this case, in

order to prove failure to test, the Coast Guard needed to prove Respondent

left Complete Occupational Health Services after the commencement of

the drug testing process. The Coast Guard's case rested primarily on the

collector's testimony. The collector, who had only nine...days of

experience prior to testing Respondent on April 13,2007, had no

recollection ofRespondent. Her testimony was based entirely from a

custody and control fonn. This fonn contains significant errors, to include

indicating Respondent's urine was both discarded and sent to the testing

laboratory. When questioned on these errors, the collector testified she

just automatically fills out the fonn. The fonn also indicated Respondent

was going to have a five-panel test, while the final report indicated

Respondent was going to have a two-panel test. The collector also

testified that the medical review officer never reviewed this fonn. The

reliability ofthis fonn is seriously in doubt.

7
MATT

[D&O at 14-15]

NO. ~685

While Respondent does not deny that he went to Complete Occupational Health

Services on April 13, 2007, he contends that he only "signed in" there and left, before the

testing process began, because he received a call from Mike Guidry, an employee of

Cheramie Marine, infonning him that he could and should get a job with Cheramie, rather

than Phil Guilbeau Offshore. [Tr. at 129, 151-54] Respondent testified that no one called

his name while he was waiting at the testing facility, that he did not fill out any

paperwork, and that he did not provide a urine sample. [Tr. at 154-61] Respondent's

testimony was supported by the deposition ofMike Guidry who recalled that he spoke to

Respondent while he was waiting at the Doctor's Office. [Coast Guard Exhibit 5 at 9-11,

17-19] In response to this evidence, the AU found as follows:

The undersigned finds the testimony ofRespondent and his supporting

witnesses credible. Respondent arrived at Complete Occupational Health

Services on April 13,2007, with the intent to complete a drug screening.

However, while waiting to be tested, Respondent received a job offer that

he perceived to be better. He therefore decided not to take the position

with Phil Guilbeau Offshore and left the testing facility before testing

began.

[D&O at 15]

After a thorough review ofthe record, I do not find that the ALl's detennination

that Respondent did not begin the drug testing process on April 13,2007, to be arbitrary,

capricious, or an abuse of his discretion. The AU's finding in that regard-including his

detennination that the Respondent and his supporting witnesses were credible and the

DTCCF upon which the collector based her testimony was seriously in doubt-was

supported by evidence in the record and will not be disturbed.

8
MATT

II.

NO.

~685

The AUerred in finding the DTCCF unreliable in showing that Respondent commenced

the test because ofinsignificant documentation errors in light oja wealth ofcase law to

the contrary.

The Coast Guard contends that "[cJourts and administrative agencies have

repeatedly found that minor procedural errors in the recording and authentication of

samples does not per se call the sufficiency ofthe evidence into question." [Appeal Brief

at 9]

A number ofCoast Guard appeal decisions have held that minor technical

infractions ofthe drug testing regulations do not violate due process unless the infraction

breaches the chain of custody or violates the specimen's integrity. See Appeal Decisions

2668 (MERRILl.), 2575 (WILLIAMS), 2546 (SWEENEY); afJ'd sub nom NTSB Order

No. EM-176 (1994), 2541 (RAYMONDl, aff'd sub nom NTSB Order No. EM-175

(1994), 2537 (CHATHAM) and 2522 (JENKINS);

The issue at hand, however, is not a question ofimproper interpretation of case

law, but rather goes to the weight the AU gave the DTCCF. In this case, the AU found

the reliability ofthe DTCCF to be in doubt due to errors contained within the form, itself,

and considerations as to the reliability ofthe person responsible for completing the form.

In Coast Guard Suspension and Revocation cases, the trier offact is the judge of

credibility and detennines the weight to be given the evidence.

9
MATT NO.

See e.g., Appeal Decisions 2382 (NILSEN), 2365 (EASTMAN), 2302

~685

(FRAPPIER), 2290 (DUGGINS), 2156 (EDWARDS) and 2017 (TROCHE). Indeed,

Appeal Decision 2296 (SABOWSKI) stated as follows:

The AU is not bound by the witnesses' opinions, but must make his own

detenninations based on the facts and the law. It is his function to

detennine the credibility of witnesses and then to weigh the evidence

admitted at the hearing. His decision in this manner is not subject to being

reversed on appeal unless it is shown that the evidence upon which he

relied is inherently incredible. (citations omitted.)

As such, great deference will be accorded the AU's evaluation and weighing ofthe

evidence, Appeal Decision 2541 eRAYMOND), because it is the AU who "saw and

heard the witnesses" and the evidence presented. See Appeal Decision 2628 (VILAS).

After a thorough review, I find that the record contains competent, reliable and

credible evidence to support the AU's conclusion that the reliability ofthe DTCCF at

issue in this case was seriously in doubt. As a result, I find sufficient evidence in the

record to support the AU's conclusion that the Coast Guard failed to prove, by a

preponderance ofreliable and credible evidence, that Respondent refused to submit to a

drug test and I will not overturn the AU's findings in that regard.

CONCLUSION

The actions ofthe ALJ had a legally sufficient basis and, for the reasons stated

above, I find that his decision was not arbitrary, capricious, or clearly erroneous.

Furthennore, the record shows that competent, substantial, reliable, and probative

evidence existed to support the findings and order oftbe AU. Therefore, I find

Respondent's bases of appeal to be without merit.

10
MATT

ORDER

,

NO.

~685

Accordingly, the Order ofthe Administrative Law Judge at New Orleans,

Louisiana, on May 13, 2008, is hereby AFFIRMED.

D.P. PEKOSKE

vice AdlI1ral~ U.S. COAST GUARD

Signed at Washington, D.C. this~f~,2010.

1t