UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

GUS WILLIAM TALIAFERRO 

Respondent

_________________________________

Docket Number 2009-0442

Enforcement Activity No. 3611490

DECISION AND ORDER

Issued: June 24, 2011

By Administrative Law Judge: Honorable Dean C. Metry

Appearances:

Mr. James D. Fayard

MST2 Meredith Schoen

Sector Lower Mississippi

For the Coast Guard

Daniel J. Gamino, Esq.

For the Respondent
PRELIMINARY STATEMENT

The United States Coast Guard (Coast Guard) instituted this suspension and revocation 

proceeding seeking revocation of Respondent Gus William Taliaferro‟s Merchant Mariner‟s 

License Number 1510172 and Merchant Mariner‟s Document Number 191373. This action is 

brought pursuant to the authority contained in 46 U.S.C. 7704(c) and its underlying regulations 

codified at 46 C.F.R. Part 5 and 33 C.F.R. Part 20.

On October 9, 2009, the Coast Guard issued a Complaint charging Respondent with 

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

Dangerous Drugs pursuant to 46 C.F.R. §5.35. Specifically, the Coast Guard alleges that on 

May 13, 2009, Respondent took a urinalysis test which yielded a positive result for marijuana 

metabolites. Respondent filed his Answer on October 28, 2009, admitting all jurisdictional 

allegations, denying factual allegations, and requesting a hearing.1 Respondent attached an 

exhibit to his Answer offering numerous affirmative defenses. On October 29, 2009, the Chief 

Administrative Law Judge referred this case to the undersigned for hearing and disposition. 

A hearing on this matter was held on October 26-27, 2010 in Oklahoma City, Oklahoma. 

The hearing was conducted in accordance with the Administrative Procedure Act (APA) as 

amended and codified at 5 U.S.C. 551-59, and Coast Guard procedural regulations set forth in 46 

C.F.R. Part 5 and 33 C.F.R. Part 20. Mr. James Fayard and Petty Officer Meredith Schoen 

represented the Coast Guard. Daniel J. Gamino, Attorney at Law, appeared on behalf of 

Respondent. The Coast Guard offered eighteen (18) exhibits and presented testimony of five (5) 

witnesses.2 Respondent offered fifty-eight (58) exhibits and presented testimony of six (6) 

witnesses. The list of witnesses and exhibits is contained in Attachment A. Respondent‟s 

 

1 Respondent admitted signing the Federal Drug Testing Custody and Control Form and denied all other factual 

allegations. Additionally, Respondent noted that his Merchant Mariner‟s License Number was incorrectly listed on 

the complaint. 
counsel elected to make a closing argument on the record at the end of the second day of the 

hearing. (Tr. at 412-429). Additionally, the Coast Guard and Respondent submitted Proposed 

Findings of Fact and Conclusions of Law on November 23, 2010 and December 15, 2010, 

respectively. 

After careful review of the entire record taken as a whole, including witness testimony, 

applicable statutes, regulations and case law, I find the Coast Guard PROVED Respondent was 

a user of dangerous drugs in violation of 46 U.S.C. 7704(c). 

FINDINGS OF FACT

1. At all relevant times mentioned herein, Respondent was a holder of Merchant Mariners 

License Serial No. 1510172 and a Merchant Mariners Document Number 191373. (CG 

Ex. 1, CG Ex. 2, See Tr. at 16-17). 

2. At all relevant times mentioned herein, Respondent was employed by Oceaneering. (See

Tr. at 48-49.)

3. Respondent was selected for a random drug screening on May 5, 2009. (CG Ex. 6, Tr. at 

28).

4. Respondent‟s May 5, 2009 drug screen yielded a dilute negative test result. (CG Ex. 12, 

Tr. at 29).

5. In accordance with Oceaneering‟s policy, Respondent was ordered to submit to a second 

drug test. (CG Ex. 21, See Tr. at 24-25).

6. Respondent submitted a subsequent urine sample on May 13, 2009. (CG Ex. 15).

7. The May 13, 2009 urine sample was collected aboard Respondent‟s vessel, the Ocean 

Intervention. (Tr. at 78). 

8. Max Cheramie, an employee of Complete Occupational Health Services, collected 

Respondent‟s May 13, 2009 urine sample. (CG Ex. 13, See Tr. at 77-79). 

9. Mr. Cheramie is a qualified urine collector pursuant to 49 C.F.R. Part 40. (See CG Ex. 

14, Tr. at 73-74). 

 

2 CG Ex. 15 was not offered into evidence, but was later cited to in the Coast Guard‟s Proposed Findings of Fact and 

Conclusions of Law. Upon review of the record, I note that CG Ex. 15 is contained at CG Ex. 20 p. 7. Similarly, 

Resp. Ex. ZZ and Resp. Ex. CCC were not offered into evidence at the hearing. 
10. Mr. Cheramie appeared very young, was possibly in his early twenties, and was not 

wearing a uniform. (Tr. at 353, 355). 

11. Respondent never saw identification from the collector. (Tr. at 355). 

12. Respondent was not instructed to wash his hands, did not see the collector wash his 

hands, and the collector was not wearing gloves. (Tr. at 356). 

13. On May 13, 2009, the bathroom area had not been secured; the sink was not taped off and 

no dye had been placed in the toilet. (Tr. at 357). 

14. At the time of the urine screening Respondent was taking Ibuprofen, “Pflex” and 

“Mdraw.” (Tr. at 357-359). 

15. The collector did not inquire whether Respondent was taking any medications. (Tr. at 

359). 

16. Respondent was present while the seal was put on his sample. (Tr. at 397).

17. Complete Occupational Health Services sent the May 13, 2009 collected sample to Quest 

Diagnostics. (Tr. at 86).

18. Quest Diagnostics is a federally certified laboratory. (Tr. at 102). 

19. Respondent‟s May 13, 2009 specimen was tested by an Olympus 5400 automated 

analyzer at Quest Diagnostics using the technique of immunoassay. (Tr. at 104-105). 

20. Immunoassay utilizes an antibody specific for individual drugs. (Tr. at 105).

21. Respondent‟s immunoassay test was presumptively positive for marijuana. (Tr. at 105). 

22. It is Quest policy that if a drug is presumptively positive after the initial test, a second 

aliquot is taken from the original specimen bottle and sent through confirmation 

procedures, which encompass solid phase extraction performed by Gas 

Chromatography/Mass Spectrometry (“GC/MS”). (CG Ex. 20, Tr. at 105-106).

23. When tested using GC/MS, Respondent‟s specimen had a marijuana metabolite 

quantitation of 74 nanograms per ML. (CG Ex. 20, p. 5, Tr. at 107).

24. The confirmation cutoff for marijuana metabolite is 15. (Tr. at 107, 49 C.F.R § 40.87).

25. The only other drug that could provide a positive result for marijuana is Marinol. (Tr. at 

200). 

26. Dr. Barry Sachs, the Medical Review Officer (MRO), requested that Bottle B of 

Respondent‟s split sample be sent to Elsohly Laboratories for testing. (Tr. at 133, CG 

Ex. 17).
27. Elsohly Labs is certified by the National Laboratory Certification Program, the College 

of American Pathologists, and registered with the DEA as a controlled substances 

analytical laboratory. (Tr. at 167, 193-194). 

28. Elsohly Labs does not receive the name of the person being tested and does not 

investigate that person. (Tr. at 191-192).

29. Elsohly Labs performed only a GC/MS confirmatory test, which was also positive for 

marijuana. (Tr. at 175, 197, CG Ex. 18).

30. When Dr. Sachs, the MRO, contacted Respondent regarding his positive urine test, 

Respondent stated that the collector did not use gloves, denied marijuana use, and stated 

he would be contacting his attorney. (Tr. at 212, 224).

31. Respondent testified that he had not used marijuana or any illegal substance leading up to 

May 13, 2009. (Tr. at 317).

32. Respondent testified that he believed the May 13, 2009 test was inaccurate. (Tr. at 317). 

33. Respondent was tested for drugs and alcohol numerous times from 1997 to 2009, and the 

May 13, 2009 sample was the only positive test. (Tr. at 333-334, Resp. Ex. P-SS).

34. Since his discharge from Oceaneering, Respondent has taken four urine tests, all of which 

he has passed. (Tr. at 370-371). 

35. Aubrey Taliaferro, Respondent‟s wife and a registered nurse, testified that Respondent is 

not someone who uses controlled dangerous substances, and she is not aware of him 

showing any effects of having taken dangerous substances. (Tr. at 403-404). 

DISCUSSION

The purpose of Coast Guard Suspension and Revocation proceedings is to promote safety 

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

authority to revoke a mariner‟s license, certificate or document for violations arising under 46 

U.S.C. § 7704. See 46 C.F.R. § 5.19(b). Under 7704(c), a Coast Guard issued license, 

certificate or document shall be revoked if the holder of that license or certificate has been a user 

of or addicted to dangerous drugs, unless the holder provides satisfactory proof that the holder is 

cured. See also Appeal Decision 2634 (BARETTA) (2002); Appeal Decision 2535 

(SWEENEY) (1992) (rev’d on other grounds); see also Appeal Decision 2546 (SWEENEY)

(1992) (reaffirming the definition or cure established in Appeal Decision 2535 (SWEENEY)).
The Coast Guard chemical drug testing laws and regulations require maritime employers 

to conduct pre-employment, periodic, random, serious marine incident, and reasonable cause 

drug testing to minimize the use of dangerous drugs by merchant mariners. See 46 C.F.R. Part 

16. Marine employers must establish programs for chemical testing of dangerous drugs on a 

random basis of crew members who occupy a position required by the vessel‟s certificate of 

inspection, perform duties and functions required by Chapter I, Title 46 Code of Federal 

Regulations, or are specifically assigned duties relating to emergencies. 46 C.F.R. 16.230(a). 

Additionally, the marine employer‟s drug testing program must be in accordance with the 

applicable statutes, regulations, and Appeal Decisions. See generally 49 C.F.R. Part 40 and 46 

C.F.R. Part 16. If an employee fails a chemical test by testing positive for a dangerous drug, the 

individual is then presumed to be a user of dangerous drugs. 46 C.F.R. 16.201(b); see also

Appeal Decision 2584 (SHAKESPEARE) (1997).

The Coast Guard charged Respondent with use of or addiction to dangerous drugs 

because Respondent tested positive for marijuana metabolites in a May 13, 2009 drug test, which 

served as a follow up to his May 5, 2009 random drug test. The Coast Guard seeks revocation of 

Respondent‟s license and document in accordance with 46 C.F.R. § 5.569. For the reasons stated 

below, I find that the Coast Guard proved Respondent is a user of or addicted to the use of a 

dangerous drug. 

Burden of Proof

The Administrative Procedure Act (APA), Title 5 U.S.C. 551-559, applies to Coast 

Guard Suspension and Revocation hearings before Administrative Law Judges. 46 U.S.C. 

7702(a). The APA authorizes sanctions if, upon consideration of the entire record as a whole, 

the charges are supported by reliable, probative, and substantial evidence. 5 U.S.C. 556(d). 

Under Coast Guard procedural rules and regulations, the burden of proof is on the Coast Guard 
to prove that the charges are supported by a preponderance of the evidence. 33 C.F.R. §§ 

20.701, 20.702(a). “The term substantial evidence is synonymous with preponderance of the 

evidence as defined by the U.S. Supreme Court.” Appeal Decision 2477 (TOMBARI) (1988); 

see also Steadman v. Securities and Exchange Commission, 450 U.S. 91, 107 (1981). The 

burden of proving a fact by a preponderance of the evidence “simply requires the trier of fact „to 

believe that the existence of a fact is more probable than its nonexistence before [he] may find in 

favor of the party who has the burden to persuade the [judge] of the fact‟s existence.‟” Concrete 

Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern 

California, 508 U.S. 602, 622 (1993) (citing In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, 

J., concurring) (brackets in original)). Therefore, the Coast Guard must prove by credible, 

reliable, probative, and substantial evidence that Respondent more likely than not committed the 

violation charged. 

Prima Facie Case of a Dangerous Drug

The Coast Guard bears the burden of proof and must prove the allegations by a 

preponderance of the evidence to prevail. 33 C.F.R. §§ 20.701, 20.702(a). In a drug case based 

solely on urinalysis test results, a prima facie case of the use of a dangerous drug is made when 

the following three elements are established: 1) the respondent was the person who was tested 

for dangerous drugs; 2) the respondent failed the drug test; and 3) the test was conducted in

accordance with 46 C.F.R. Part 16. Appeal Decision 2603 (HACKSTAFF) (1998). See also

Appeal Decision 2653 (ZERINGUE) (2002). 

In the instant case, after Respondent was randomly selected for a May 5, 2009 urinalysis 

which tested dilute negative, a second specimen was collected on May 13, 2009 which tested 

positive for the presence of marijuana metabolites. (Tr. at 29, 77-79, CG Ex. 11, CG Ex. 12). 

The specimen was analyzed by an automated analyzer at Quest Diagnostics, a federally certified 
laboratory, and tested positive for marijuana. (See Tr. at 102, 104-105, CG Ex. 20). A second 

aliquot was taken from the original specimen bottle and solid phase gas extraction was 

performed by GC/MS which verified the presence of marijuana metabolites measuring seventyfour (74) nanograms per milliliter. (CG Ex. 20, p. 5, Tr. at 105-107). The confirmation cutoff 

for marijuana metabolite is fifteen (15) nanograms per milliliter. (Tr. at 107, 49 C.F.R. § 40.87). 

Dr. Sachs, the MRO, requested that the split specimen be sent to another laboratory. (CG Ex. 17, 

Tr. at 133). Elsohly Labs, certified by the National Laboratory Certification Program, the 

College of American Pathologists, and registered with the DEA as a controlled substances 

analytical laboratory, performed a GC/MS confirmatory test, which also tested positive for 

marijuana. (CG Ex. 18, Tr. at 167, 172-174.) Dr. Elsohly testified that the only other drug that 

could provide a positive result for marijuana is Marinol (Tr. at 200; see also 49 C.F.R. Part 40).

Dr. Sachs received and verified Respondent‟s positive laboratory results. (CG Ex. 16). 

He also spoke with Respondent over the phone to determine whether a legitimate medical 

explanation existed for Respondent‟s positive drug test (Tr. at 212, 223-225). Respondent 

testified that while he initially did not tell Dr. Sachs about medications he was taking, he did call 

Dr. Sachs several days later to inform him of his medications. (Tr. at 362-363). At the hearing, 

Respondent testified that at the time of the May 13, 2009 urine test he was taking Ibuprofin, 

Pflex, and Mdraw. (Tr. at 357-359).

Ultimately, two (2) certified laboratories, performing a total of three (3) DOT drug tests 

and the MRO determined that there were positive findings of marijuana use by Respondent. 

Given all the above, I find that the Coast Guard did establish and prove a prima facie case of 

dangerous drug use.
Respondent’s Rebuttal

If the Coast Guard establishes a prima facie case by a preponderance of the evidence, a 

presumption of dangerous drug use arises, and the burden then shifts to the respondent to 

produce persuasive evidence to rebut the presumption. See Appeal Decisions 2603 

(HACKSTAFF) (1998); 2592 (MASON) (1997); 2589 (MEYER) (1997); 2584 

(SHAKESPEARE) (1997); and 2379 (DRUM) (1985). Such a presumption imposes on the party 

against whom it applies the burden of going forward with evidence to rebut or meet the 

presumption. 33 C.F.R. § 20.703(a). 

A respondent faced with overcoming the presumption of use of a dangerous drug “may 

rebut the presumption by producing evidence (1) that calls into question any of the elements of a 

prima facie case, (2) that indicates an alternative medical explanation for the positive test result, 

or (3) that indicates the use was not wrongful or not knowing.” Appeal Decision 2560 

(CLIFTON) (1995). If a respondent‟s evidence sufficiently rebuts the presumption, then the 

burden of presenting evidence of a respondent‟s drug use returns to the Coast Guard, which bears 

the ultimate burden of proof on the issue. Id. 33 C.F.R. § 20.703(b).

Respondent has asserted numerous errors with both the collection and testing process. I 

will address each allegation in turn. 3

i. General Collection Errors

Respondent alleges that various aspects of both the collection and laboratory procedure 

were questionable. (See Tr. at 12). To this end, Respondent elicited testimony tending to show 

that the collector of the May 13, 2009 did not wear gloves, appeared very young, was not 

wearing a uniform, and never produced identification (Tr. at 212, 223, 353, 355-356). Further, 

 

3

In his Proposed Findings of Fact and Conclusions of Law, Respondent asserts that the Coast Guard failed to prove 

that the urine analysis was “lawfully obtained.” To this end, Respondent proffers that the Coast Guard‟s witnesses 

lacked personal knowledge regarding testing procedures and chain of custody. Because I have found that the Coast 

Guard has made a prima facie case, I need not address the individual witnesses‟ inability to verify whether 
Respondent was not instructed to wash his hands, the collector did not wash his hands or wear 

gloves, and the bathroom area had not been properly secured (Tr. at 356-357).4 

The drug testing regulations found at 49 C.F.R. Part 40 contain several mandatory 

provisions regarding the collection process, including a number of “fatal flaws” that require a 

drug test to be cancelled. See 49 C.F.R. § 40.199. A reading of the fatal flaws listed in Section 

40.199 reveals that such flaws are directed more toward significant errors that may happen once 

the donor has provided a sample to be tested. However, just because errors are not “fatal” flaws 

does not mean that such errors cannot rise to the level of flaws “fatal” to a resulting test. See

Appeal Decision 2653 (ZERINGUE) (2002). The key questions center on whether the collection 

was conducted in a way that the integrity of the sample or chain of custody is potentially 

compromised and whether the test results can be deemed reliable. 

The regulations also provide a non-exclusive list of other procedural deviations from the 

regulations that do not invalidate the test. See 49 C.F.R. § 40.209. Section 40.209 makes it clear 

that a test may not be cancelled “based on an error that does not have a significant adverse effect 

on the right of the employee to have a fair and accurate test.” Id. The commentary to this 

section affirms that the proper remedy for such errors is not to cancel the test because “[t]his is a 

safety rule, and it is not consistent with safety to permit someone with a positive drug test to 

continue performing safety-sensitive functions because a collector made a minor paperwork error 

that does not compromise the fairness or accuracy of the test.” See 65 FR 79462, 79503 

(December 19, 2000).

 

guidelines were followed. However, I will address all of Respondent‟s specific allegations of error with regards to 

the collection and testing procedures. 

4 Respondent also alleged in his Answer that the collector did not certify that the primary specimen bottle seal was 

intact. However, at the hearing, Respondent testified that he was present while the seal was placed on the sample. 

(Tr. at 397). 
Along these same lines, Coast Guard case law has held that minor technical infractions of 

the 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) (2007); 2575 

WILLIAMS) (1996); 2546 (SWEENEY) (1992); aff‟d NTSB Order No. EM-176 (1994); 2541 

(RAYMOND) (1992), aff‟d NTSB Order No. EM-175 (1994); 2537 (CHATHAM) (1992); 2522 

(JENKINS) (1991). 

In the instant case, the collector‟s age and failure to wear a uniform have no bearing on 

the integrity of the sample or the accuracy of the urine test. Mr. Fullilove testified that the 

collector, Max Cheramie, was qualified to collect the sample, and the Coast Guard has provided 

documentation showing Mr. Cheramie‟s qualifications. (Tr. at 73-74, 83, CG Ex. 14). Mr. 

Fullilove also testified that he was satisfied with Mr. Cheramie‟s work performance, and that Mr. 

Cheramie made no major errors while employed by Complete Occupational Health Services. 

(Tr. at 73-74, 91).

The collector‟s failure to show identification similarly has no bearing on the fairness or 

accuracy of the test. The testimony at the hearing and the sample collection forms clearly 

indicate that Max Cheramie collected Respondent‟s May 13, 2009 specimen. (Tr. at 77-79, CG 

Ex. 13). Further, at the hearing, Respondent acknowledged that anyone boarding the vessel 

would have been required to show identification, and that Respondent did not believe anyone 

could have “snuck on” the vessel to perform the collection. (Tr. at 379). Respondent‟s counsel 

also acknowledged that Respondent never requested to see the collector‟s identification. (Tr. at 

418-419). 

Respondent‟s allegation that neither he nor the collector washed their hands prior to the 

collection of the sample is also not a fatal flaw. Respondent failed to introduce evidence tending 

to show how unwashed hands on part of either party could have resulted in metabolized 

marijuana in Respondent‟s urine. Further, Coast Guard case law has specifically addressed this 
oversight, holding that this omission amounts to a minor technical violation of drug testing 

procedures. See Appeal Decision 2522 (JENKINS) (1991) (“[T]he handwashing requirement 

was promulgated primarily, not to protect the individual, but as an additional precaution to 

ensure that the urine sample is not surreptitiously adulterated by the individual providing the 

sample.”) 

Thus, Respondent‟s allegations that the collector did not wear gloves or properly secure 

the bathroom area are also not fatal. A collector wears gloves for his/her own safety. 

Respondent has failed to demonstrate how the absence of gloves could result in a false positive. 

Further, the failure to secure a bathroom area would not create a false positive; indeed, it is 

designed to prevent someone from fraudulently producing a negative result. Notably, a 

collector‟s failure to add bluing agent to the toilet bowl is specifically listed in the regulations as 

an example of a non-fatal error. 49 C.F.R. 40.209(b)(2). 5 

ii. Form Errors

Respondent asserts that the urine collection form fails to indicate the collection time, and 

that the collector modified the form by to indicate the sample was collected for Oceaneering. 

(CG Ex. 13, Tr. at 79, 82).

The absence of the collection time is not an enumerated fatal flaw. Indeed, the 

commentary to 49 C.F.R. § 40.209 specifically notes that minor paperwork errors are insufficient 

to invalidate a urine test, particularly in light of the safety-sensitive functions in which mariners 

engage. See 65 FR 79462, 79503 (December 19, 2000). Further, Mr. Fullilove testified that the 

form was altered only because DISA did not have any blank forms, and Oceaneering was not a 

regular customer. (Tr. at 82). There is no indication in the record of any nefarious intent on part 

 

5 Respondent also alleged in his Answer that the collector did not identify the testing methodology, provide

Respondent with the sampling protocol in use, provide certification that specific testing protocol was followed, 

provided a chain of custody report, or a contemporaneous report of the laboratory analysis of the May 13, 2009 

sample. After review of the hearing testimony and the exhibits submitted into evidence, I find that the Coast Guard 

has provided all of this information. 
of the collector in altering the form; on the contrary, it appears Mr. Cheramie altered the form to 

more readily identify the sample. 

iii. Respondent’s Medications

While Respondent credibly alleges that the collector did not inquire as to whether 

Respondent was taking any medications, this is also not a fatal flaw. The regulations do not 

require the collector to gather this information, and actually caution against having an employee 

list medications he/she is taking on the CCF. 49 C.F.R. § 40.63(g). Instead, this is a job of the 

MRO. In this case, Dr. Sachs testified that when he informs people of positive test results, he 

inquires as to whether there is any medical reason for the results, including certain medications. 

(Tr. at 211). In response to Dr. Sachs‟ questions, Respondent stated only that the collector had 

not worn gloves. (Tr. at 212). 

At the hearing, Respondent testified that he was taking only Ibuprofin, Pflex, and Mdraw 

at the time the sample was provided. (Tr. at 357-359). While Respondent introduced evidence 

tending to show that Ibuprofin can produce false positives for marijuana (See Tr. at 372-373, 

Resp. Ex. HHH), Dr. Elsohly credibly testified that the GC/MS test is specific enough to avoid 

any false positives, and that the only drug that could produce a positive test result other than 

marijuana is Marinol. (Tr. at 199-200). Respondent never indicated that he took Marinol. 

iv. Retaliatory Motive

Respondent also alleges that he was singled out for disparate treatment. (See Tr. at 14). 

Respondent states in his Answer that this disparate treatment was due to Respondent‟s refusal to 

“volunteer” to work in a shipyard, Respondent‟s declining certain overtime assignments, and 

because Respondent‟s brother quit in the spring of 2009 and sought unemployment benefits. At 

the hearing, Respondent testified that he thought certain people in the company were “gunning 

for [him]” because he had complained about the company‟s failure to repair and perform 

maintenance work on an engine. (Tr. at 369). Respondent also introduced evidence that other 
Oceaneering employees, namely, Artie Scoggins and a galley hand named Gordon, were accused 

of drug use under dubious circumstances, and that, in December 2005, Respondent was told his 

urine had tested dilute negative, only to be later told the test was negative. (Tr. at 241-244, 353).

Whether other Oceaneering employees were treated unfairly is beyond the scope of this 

hearing. Respondent‟s urine tests do not appear dubious, and, notably, the regulations 

specifically list “[c]laims that an employee was improperly selected for testing” as a non-fatal 

flaw. 49 C.F.R. 40.209(b)(10). Additionally, the evidence shows that Respondent was randomly 

selected for a urine screening by a third party, not his employer. (See CG Ex. 5, Tr. at 26, 54.) 

Last, although Respondent testified that he thought certain people were “gunning for [him],” he 

also testified that he believed the reason behind his firing was his urine test. (Tr. at 367, 369). 

v. No Propensity for Drug Use

Respondent further alleges that he has not shown any propensity for drug use. (See Tr. at 

13.) Namely, Respondent has a long employment history and has been subject to many random 

drug tests, all of which have been negative. (See Tr. at 13, 333-334). Many of Respondent‟s 

coworkers testified that he is an honest and trustworthy person. (Tr. at 236-238, 254-255, 285-

286, 304-305). He is married with two step-daughters, has received many commendations and 

awards, and has passed a background check to become a licensed armed guard. (Tr. at 322-323, 

328, 340-341). 

While this evidence shows that Respondent is a skilled mariner, it does not sufficiently 

rebut any of the elements of the prima facie case, indicate an alternative medical explanation for 

his positive test result, or indicate that Respondent‟s use was not wrongful or not knowing. See

Appeal Decision 2560 (CLIFTON) (1995). While this evidence is probative as to the fact that 

Respondent is likely not a habitual drug user or drug addict, the Coast Guard did not need to 

prove that Respondent was a habitual user, only that Respondent was a user of a dangerous drug. 
ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. At all relevant times, Respondent was a holder of Coast Guard issued Merchant Mariner 

License 1510172 and Merchant Mariner Document 191373. (CG Ex. 1, CG Ex. 2, See

Tr. at 16-17).

2. Respondent and the subject matter of this hearing are properly within the jurisdiction 

vested in the Coast Guard under 46 U.S.C. 7704(c); 46 C.F.R. Parts 5 and 16; 33 C.F.R. 

Part 20; and the APA codified at 5 U.S.C. 551-59.

3. Respondent provided a dilute negative sample on May 5, 2009.

4. Respondent underwent a subsequent May 13, 2009 urinalysis which followed the 

guidelines set for drug testing by the Department of Transportation in 49 C.F.R. Part 40 

and 46 C.F.R. 5.35.

5. Respondent‟s May 13, 2009 drug test was positive for marijuana metabolites. 

6. The positive drug test creates a presumption that Respondent is a drug user pursuant to 46 

C.F.R. 16.21(b).

7. Respondent has failed to rebut the presumption that he is a user of dangerous drugs. 

8. The Coast Guard PROVED by a preponderance of reliable, probative, and credible 

evidence that Respondent is a user of or addicted to dangerous drugs. 

9. Respondent‟s use of drugs violates the provisions of 46 U.S.C. 7704(c) which requires 

that his merchant mariner‟s license and document be revoked. 

SANCTION

The authority to impose sanctions at the conclusion of a case is exclusive to the ALJ. 

Appeal Decision 2362 (ARNOLD) (1984). Title 49 C.F.R. 5.569 provides the Table of 

Suggested Range of Appropriate Orders (Table) for various offenses. The purpose of this Table 

is to provide guidance to the ALJ and promote uniformity in orders rendered. Appeal Decision 

2628 (VILAS) (2002), aff‟d by NTSB Docket ME-174.

When the Coast Guard proves that a mariner has used or is addicted to dangerous drugs, 

any Coast Guard issued licenses, documents, or other credentials must be revoked unless cure is 

proven. See 46 U.S.C. 7704(c); 46 C.F.R. 5.569; Appeal Decision 2535 (SWEENEY) (1992). 

Absent evidence of cure or substantial involvement in the cure process, an ALJ must revoke a 
respondent‟s license and document under 46 U.S.C. 7704(c). See also Appeal Decision 2634 

(BARRETTA) (2002), Appeal Decision 2583 (WRIGHT) (1997). 

In Exhibit A of his Proposed Findings of Fact and Conclusions of Law, Respondent 

included documentation tending to show he completed a ten hour Alcohol and Drug Abuse 

Course and was ordered to be tested at random intervals for drugs and alcohol. Notably, these 

documents were not offered or admitted into the record at the hearing. Furthermore, “Cure” has 

been defined as a two-step process in which the mariner must: (1) successfully complete a bona 

fide drug abuse rehabilitation program, and (2) demonstrate a complete non-association with 

drugs for a minimum of one year following the successful completion of the drug abuse program. 

See 46 U.S.C. 7704(c); 46 C.F.R. 5.569; Appeal Decision 2535 (SWEENEY) (1992). Coast 

Guard regulations also require an MRO to verify that a mariner is drug free and that the risk of 

subsequent drug use of dangerous drugs is sufficiently low to justify the mariner‟s return to work 

aboard a vessel. 46 C.F.R. 16.201(f). Furthermore, a mariner is not allowed to work under the 

authority of a mariner‟s credentials prior to completion of cure; the Coast Guard retains 

possession of the document(s) during the cure process. Appeal Decision 2638 

(PASQUARELLA) (2003). 

In the instant case, the Coast Guard proved and the undersigned found that Respondent 

used the dangerous drug. Therefore, I am precluded from issuing an order less than 

REVOCATION. 

Based on my review of the entire record, including the testimony and exhibits contained 

herein, I note that Respondent appears to be a highly skilled mariner. Nevertheless, because I am 

bound by the regulations and case law precedent cited herein I am without discretion in the 

matter.
ORDER

IT IS HEREBY ORDERED that Merchant Mariner‟s License Number 1510172, 

Merchant Mariner‟s Document Number 191373, and all other valid licenses, documents, and 

endorsements issued by the Coast Guard to Gus William Taliaferro are REVOKED. 

Respondent is hereby directed to immediately surrender his Merchant Mariner‟s License and 

Merchant Mariner‟s Document to: USCG Sector Lower Mississippi, 2 A.W. Willis Avenue, 

Memphis, Tennessee 38105.

Pursuant to 33 C.F.R. 20.904(f), three years or less after a suspension and revocation 

proceeding has resulted in revocation of a license, certificate, or document, Respondent may file 

a motion to re-open the proceedings and modify the order of revocation. Respondent must state 

why the basis for the order of revocation is no longer valid. Successful completion of the cure 

process could illustrate Respondent is no longer a user of drugs or a threat to safety at sea. 

Therefore, Respondent has up to three years to illustrate he is no longer a user of drugs and move 

to re-open his case, at which point, the undersigned will consider any new evidence. 

PLEASE TAKE NOTICE that service of this Decision on the parties and/or parties‟ 

representative(s) serves as notice of appeal rights set forth in 33 C.F.R. 20.1001 – 20.1004.

__________________________________________________

Dean C. Metry

U.S. Coast Guard Administrative Law Judge

Date: 

June 24, 2011
ATTACHMENT A

WITNESS AND EXHIBIT LISTS

WITNESS LIST

COAST GUARD WITNESSES

1. Pamela Culliver, Human Resources Employee at Oceaneering International, Inc. 

2. Joey Fullilove, Owner of Complete Occupational Health Services

3. Barbara Rowland, Director of Laboratory Operation at Quest Diagnostics

4. Mahmoud Elsohly, Ph.D., Laboratory Director and President of Elsohly Labs

5. Barry Sachs, D.O., Medical Review Officer

RESPONDENT’S WITNESSES

1. George Wainwright

2. Jim Cook

3. James Brazier, Jr.

4. William Mansfield

5. Gus Taliaferro

6. Aubrey Faye Taliaferro

EXHIBIT LIST

COAST GUARD’S EXHIBITS

CG Ex. 1 Taliaferro Merchant Mariner License #1510172

CG Ex. 2 Taliaferro Merchant Mariner Document # 191373

CG Ex. 3 Oceaneering‟s Company Policy of Alcohol and Drug Abuse

CG Ex. 4 Acknowledgement of Company Policy

CG Ex. 5 DISA Random Selection Procedure and Probabilities

CG Ex. 6 Personnel Selected for May 5, 2009 Screening

CG Ex. 7 NOT OFFERED AT THE HEARING

CG Ex. 8 NOT OFFERED AT THE HEARING

CG Ex. 9 NOT OFFERED AT THE HEARING

CG Ex. 10 NOT OFFERED AT THE HEARING

CG Ex. 11 E-mail Notification of Dilute Negative

CG Ex. 12 Test Result Certificate

CG Ex. 13 Federal Custody and Control Form

CG Ex. 14 Certifications of Max Cheramie

CG Ex. 15 NOT OFFERED AT THE HEARING

CG Ex. 16 MRO Report

CG Ex. 17 Request to Test Split Specimen

CG Ex. 18 Federal Custody and Control Form

CG Ex. 19 Federal Custody and Control Form

CG Ex. 20 Quest Litigation Package

CG Ex. 21 Oceaneering Policy Update 2007

CG Ex. 22 MRO Drug Test Results
CG Ex. 23 Instructions for Urine Sample

RESPONDENT’S EXHIBITS

Resp. Ex. A Curriculum Vitae

Resp. Ex. B U.S. Merchant Mariner License

Resp. Ex. C U.S. Merchant Mariner Document

Resp. Ex. D Certificate Endorsement

Resp. Ex. E TWIC Card

Resp. Ex. F College Transcripts

Resp. Ex. G Student Record

Resp. Ex. H 10-Year Service Award

Resp. Ex. I 6-21-07 Oceaneering Letter

Resp. Ex. J R/V Fairfield Encounter Letter

Resp. Ex. K 2-Year Service Award

Resp. Ex. L 8-4-02 OSV Ocean Intervention II 

Resp. Ex. M 4-28-04 Chief Engineering Letter

Resp. Ex. N Mansfield Letter

Resp. Ex. O Armed Security Guard License

Resp. Ex. P 11-26-09 Federal Custody and Control Form 

Resp. Ex. Q 5-13-09 Federal Custody and Control Form

Resp. Ex. R 5-5-09 Federal Custody and Control Form

Resp. Ex. S 9-22-09 Federal Custody and Control Form

Resp. Ex. T 5-5-09 Alcohol Test Requisition Form

Resp. Ex. U 1-20-09 Federal Custody and Control Form

Resp. Ex. V 12-2-08 Federal Custody and Control Form

Resp. Ex. W 5-21-08 Federal Custody and Control Form

Resp. Ex. X 12-14-07 Federal Custody and Control Form

Resp. Ex. Y 9-9-07 Breath Alcohol Testing Form

Resp. Ex. Z 6-10-07 Breath Alcohol Testing Form 

Resp. Ex. AA 2-15-07 Breath Alcohol Testing Form

Resp. Ex. BB 4-17-06 Breath Alcohol Testing Form

Resp. Ex. CC 4-13-06 Breath Alcohol Testing Form

Resp. Ex. DD 6-3-06 Federal Custody and Control Form

Resp. Ex. EE 6-1-05 Federal Custody and Control Form

Resp. Ex. FF 12-14-04 Federal Custody and Control Form

Resp. Ex. GG 4-19-03 Non-Federal Custody and Control Form

Resp. Ex. HH 5-1-02 Federal Custody and Control Form

Resp. Ex. II 12-14-02 Breath Alcohol Testing Form

Resp. Ex. JJ 12-20-02 Federal Custody and Control Form 

Resp. Ex. KK 10-8-01 Federal Custody and Control Form

Resp. Ex. LL 5-9-00 Breath Alcohol Testing Form

Resp. Ex. MM5-20-99 Federal Custody and Control Form

Resp. Ex. NN 10-28-99 Federal Custody and Control Form

Resp. Ex. OO 10-29-98 Non-DOT Chain of Custody Form

Resp. Ex. PP 10-15-98 Federal Custody and Control Form

Resp. Ex. QQ 10-29-98 Federal Custody and Control Form

Resp. Ex. RR 12-31-97 Federal Custody and Control Form
Resp. Ex. SS 1-7-00 Fitness for Duty Form

Resp. Ex. TT 12-30-08 Performance Evaluation

Resp. Ex. UU 6-30-08 Performance Evaluation

Resp. Ex. VV 12-31-07 Performance Evaluation

Resp. Ex. WW 6-30-07 Performance Evaluation

Resp. Ex. XX 12-11-04 Performance Evaluation

Resp. Ex. YY 10-26-04 Performance Evaluation

Resp. Ex. ZZ NOT OFFERED AT THE HEARING

Resp. Ex. AAA Blank Federal Custody and Control Form

Resp. Ex. BBB Carey Letter

Resp. Ex. CCC NOT OFFERED AT THE HEARING

Resp. Ex. DDD Grehan Letter 

Resp. Ex. EEE Godfrey Letter

Resp. Ex. FFF Wainwright Letter

Resp. Ex. GGG DOT Drug and Alcohol Policy

Resp. Ex. HHH Internet Articles
ATTACHMENT B

PARTIES’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Coast Guard’s Proposed Findings of Fact

1. On May 13, 2009, Mr. Gus William Taliaferro, hereinafter “Respondent” was the holder 

of a current U.S. Coast Guard License with a Serial Number of 1510172, issued on June 

6, 2008, to expire on June 6, 2013. (CG Exhibit 1). ACCEPTED, see Decision and 

Order.

2. On May 13, 2009, the Respondent was the holder of a current U.S. Coast Guard 

Merchant Marine Document number 191373 issued on June 6, 2008, to expire on June 6, 

2013. (CG Exhibit 2). ACCEPTED, see Decision and Order.

3. On October 1, 2002, Oceaneering instituted a “Company Policy on Alcohol and Drug 

Abuse” which was acknowledged by signature of the Respondent on April 25, 2006. 

(CG Exhibits 3 & 4). ACCEPTED AND INCORPORATED.

4. In 2007, Oceaneering updated their Corporate Policy on Dilute Specimens. (CG Exhibit 

21). ACCEPTED.

5. On May 12, 2009, Oceaneering sent correspondence to Complete Occupational Health 

Services requesting they administer a DOT Drug Test in accordance with 49 CFR 40. 

(Testimonies of Ms. Pam Culliver and Mr. Joey Fullilove) and (CG Exhibit 23). 

ACCEPTED AND INCORPORATED.

6. On November 2, 2007, Mr. Max Cheramie, hereinafter “Collector” was certified and 

authorized to collect urine specimens for DOT drug testing as per 49 CFR 40.31 and 

employed by Complete Occupational Health Services. (Testimony of Mr. Joey Fullilove) 

and (CG Exhibit 14). ACCEPTED.

7. May 13, 2009, on board the M/V Ocean Intervention I, the Respondent was administered 

a DOT Drug test and provided a urine sample hereinafter “sample” to the Collector. Both 

the Respondent and Collector signed the Federal Custody and Control Form, hereinafter 

“FCCF”, with a specimen ID # 5844217, (CG Exhibit 13). ACCEPTED, see Decision 

and Order.

8. The sample in custody by Complete Occupational Health Services was then transferred to 

Quest Diagnostics for analysis along with the FCCF. Quest Diagnostics received the 

sample on May 14, 2009. (CG Exhibits 15 & 20). ACCEPTED AND 

INCORPORATED.

9. May 15, 2009, the sample was determined to contain 74 NL/ML of the marijuana 

metabolites and the results were then sent to Dr. Sachs, the Medical Review Officer, 

hereinafter MRO along with the FCCF. (CG Exhibit 16). ACCEPTED see Decision 

and Order.
10. During the verification notification, the MRO notified the Respondent that his sample 

tested POSITIVE for marijuana metabolites, during said notification; the Respondent did 

not provide any legitimate medical explanation as to the results of his sample. To wit: 

the MRO determined the Respondent to have used marijuana metabolites. (CG Exhibit 

16), (Testimonies of the MRO and the Respondent). ACCEPTED, see Decision and 

Order.

11. May 15, 2009, the MRO informed Oceaneering that the Respondent‟s sample was 

POSTIVE for marijuana metabolites. (CG Exhibit 22). ACCEPTED, see Decision and 

Order.

12. On May 26, 2009, a request from the MRO was sent to ElSohly Laboratories requesting a 

retest for THC (marijuana), and the split specimen was sent to said laboratory for 

analysis. (CG Exhibit 17) and (Testimony of MRO). ACCEPTED, see Decision and 

Order.

13. On May 29, 2009, the split specimen was reconfirmed for marijuana. (CG Exhibit 18) 

and (Testimonies of the MRO and Dr. ElSohly) ACCEPTED, see Decision and Order.

14. On June 6, 2009, the MRO affirmed the reconfirmation test of the split specimen. (CG 

Exhibit 19) ACCEPTED, see Decision and Order.

Respondent’s Proposed Findings of Fact

1. The standard for any UA for Coast Guard purposes was set by the National Institute on 

Drug Abuse, Research Monograph number 93, “Urine Testing For Drugs of Abuse.” The 

monograph provides in pertinent part:

“The urine test can be useful and reliable for determining drug use patterns only if it is 

performed and interpreted using appropriate procedures.” (Page 24)

“The validity of the results of a urine test is dependent on the integrity of the specimen.” 

(Page 25) (Emphasis added) ACCEPTED.

2. Coast Guard witness Dr. El Soholy recognized the preeminence of the NIDA standard in 

his testimony, to-wit:

“Q. And in my own words, the statement is that a urine test is useful and reliable only if 

it is performed using appropriate procedures. Would you agree or disagree with that?

A. Absolutely.

Q. You would agree? 

A. I agree, yes, sir.

Q. Okay. One other statement I was to ask you about, that the validity of a urine 

specimen depends on the integrity of the specimen?

A. I agree whole heartedly.” (TR Page 191, Lines 5 to 15) ACCEPTED.

3. Coast Guard MRO Dr. Barry Sachs also agreed with the NIDA standard, to-wit:
“Q. Would you agree that a urine test is useful and reliable only if it is performed using 

appropriate procedures?”

A. Correct.

Q. And would you further agree that the validity of a urine test depends on the integrity 

of the specimen?

A. That is correct.” (TR. Page 226, Lines 10 to 18). ACCEPTED.

4. The Coast Guard offered testimony from Pamela Culliver. Ms. Culliver testified that she 

was “in charge of the Human Resources Management System, all the data entry for all 

the personnel, and I‟m in charge of random drug screening,” (TR Page 20, Lines 16 to 

18). (Emphasis added). Yet despite her title and having Coast Guard Exhibit #3 in front 

of her at the time of her testimony, the witness could not identify SAMHSA (Substance 

Abuse and Mental Health Services Administration). Nor could the witness identify 

SAMHSA (Substance Abuse and Mental Health Services Administration). Nor could the 

witness identify NIDA (National Institute for Drug Abuse), (TR Page 39, Lines 24-25, 

Page 40, Lines 1-3). Nor was the witness able to identify how Oceaneering carries out its 

responsibility to fulfill all requirements under SAMHSA and NIDA, to wit:

“Q. How do you, as the HR Administrator, then carry out Oceaneering‟s responsibility to 

fulfill all the requirements if you don‟t know what the SAMHSA requirements are?

A. I don‟t know how to answer that. We are required to do random drug screens.

Q. And is there any kind of steps or procedures?

A. I don‟t think.

Q. How about under the NIDA guidelines, how do you, as HR Administrator, carry out 

your responsibility to be sure that all NIDA guidelines are followed?

A. I don‟t know.

Q. Do you know and can you tell Judge Metry this morning and swear that those 

guidelines were followed or not followed in the case with Mr. Taliaferro?

A. No, I can‟t.” (TR Page 42, Lines 10-25, Page 43, Lines 1-3).

Under additional questions from Respondent‟s counsel and from the Administrative Law 

Judge the witness‟s position was clarified, to-wit:

“Q. Well, I‟m confused then. You said a minute ago it is your job that the collectorsyou have to be sure the collectors do a good job. Do you remember saying that?

A. Yes, I do.

Q. Okay. I‟m just trying to find out what is your process to be sure the collectors are 

doing a good?

A. I guess I don‟t have one.

Q. Okay.

Mr. Gamino: Thank you, Judge.

Administrative Law Judge: Let me just clarify that. What happens is- I think what Mr. 

Gamino was asking you is not necessarily your personal, you know, part of what your 

personal responsibility is, but what is the company, is there a company process, a 

company quality control process in place to ascertain whether or not the collectors are, 

„doing a good job?‟

A. The Witness: No.” (TR Page 62, Lines 22-25, Page 63, Lines 1-13). ACCEPTED 

AND INCORPORATED.
5. This was the only Oceaneering witness called by the Coast Guard. And her testimony is 

clear she cannot prove that the UA was lawfully obtained from the Respondent on May 

13, 2009, to-wit:

“Q. Isn‟t it true, ma‟am, you are assuming that the collection taken by Mr. Taliaferro was 

handled in a lawful manner?

A. Yes.

Q. And it was taken in a lawful manner?

A. Yes.

Q. You cannot assure this Judge that the collector on May 13 wore his uniform, can you?

A. No, I can‟t.

Q. You don‟t know if he carried any ID or not, do you?

A. No.

Q. You don‟t know if he wore any gloves?

A. No.

Q. You don‟t know if he washed his hands before he undertook the testing process?

A. No, I don‟t.” (TR Page 35, Lines 5-21).

“Q. You don‟t know, ma‟am, even though you have been the head of HR for 16 years, in 

this particular case if the collector allowed Mr. Taliaferro to wash his hands before a

collection was made, do you?

A. No, I don‟t. (TR Page 37, Lines 3-7).

Q. Can you tell the Judge, is there any requirement that a collection site have a source of 

water for washing hands, or do you know?

A. I‟m sorry, say that again?

Q. Do you know if there is a requirement that a collection site have a source of water for 

washing hands?

A. No, I don‟t.

Q. Do you know if there is a requirement that the collector should wear gloves?

A. Do I know? No, I don‟t know, but I do see the collectors wearing the gloves upon 

collection when they are at this facility, I do see that.

Q. Are you able to swear to the Judge that the collector was wearing gloves on May 13, 

2009 when he took a sample from Mr. Taliaferro?

A. No, I‟m not.

Q. You mentioned in direct testimony that the collected must fill out certain paperwork, 

did you not?

A. Yes.

Q. Do you know in this case that the paperwork was lawfully prepared by the collector 

or not?

A. No.

Q. Do you know in this case if the collector provided identification o Mr. Taliaferro?

A. No, I don‟t.

Q. Is that a requirement or not, or do you know?

A. No, I don‟t.

Q. Do you know if there is any requirement that the collector must inquire about 

medication taken by the employee?

A. No, I don‟t.” (TR Page 43, Lines 4-25, Page 44, Lines 1-9).
“Q. Do you know, ma‟am, moving on here, whether the collector allowed Mr. Taliaferro 

to wash and dry his hands before providing a sample?

A. I do not know.” (TR Page 45, Lines 13-16). ACCEPTED IN PART, see Decision 

and Order.

6. The Coast Guard next offered testimony of Joey Fullilove, owner of Complete 

Occupational Health Services, the company that provided the collector to obtain the 

sample from the Respondent on May 13, 2009. Yet this witness could not prove that the 

UA was lawfully obtained, to-wit:

“Q. Can you tell the Judge any of the actual acts that Max Cheramie did on May 13, 

2009 in taking, collecting the sample?

A. Meaning do I know exactly what he did?

Q. Yes, sir.

A. No.

Q. All you have- all you have is the form in front of you, do you not?

A. Right, I have the form in front of me.

Q. And whether Mr. Cheramie wore a uniform or carried an ID or showed an ID or 

anything else, you don‟t have any knowledge, do you?

A. If Mr. Cheramie had an ID on him? I would hope he did.

Q. I know.

A. He‟s supposed to follow that.

Q. I know what he‟s supposed to do, Mr. Fullilove. My only question isA. I can‟t say 100% one way or the other if he did or didn‟t, no, I can‟t.” (TR Page 83, 

Lines 20-25, Page 84, Lines 1-14). 

Further Mr. Fullilove testified that the collector made modification to the form, to-wit:

“Q. He modified that form?

A. Modified? Yes.

Q. One of the modifications was he left off the time, didn‟t he?

A. I see that.

Q. Did you authorize him to leave off the time?

B. A. He probably just forgot to do it. No, I didn‟t authorize that. He probably just 

forgot to put it in.” (TR Page 81, Lines 11-20). ACCEPTED IN PART, see 

Decision and Order.

7. Mr. Fullilove also testified that this May 13, 2009 collection from Mr. Taliaferro was for 

a follow-up test but then he acknowledged there was nothing on the paperwork that 

identified it as a re-test or a confirmation, to-wit:

“Q. Mr. Fullilove, did you testify just a second ago that if you were doing a follow up 

test it must be observed?

A. Yes.

Q. Did anything in that email from Deborah Stevenson tell you that this was a follow up 

test to a dilute negative?

A. I don‟t have that anywhere. A follow up is not- I don‟t have that anywhere. I have it 

marked as random, and I don‟t remember if she told me that or not.
Q. Is there any of your paperwork that shows this gentleman was tested previously on or 

around May 5th?

A. No. I wouldn‟t have done it, but somebody else might. But I don‟t think we did it.

Q. And is there anything in your paperwork that says this is a re-test or confirmation?

A. Let me look. I don‟t see any of that, no. No, sir. (TR Page 94, Lines 4-20). 

ACCEPTED, see Decision and Order.

8. The Coast Guard presented testimony from Barbara Rowland, Director of Laboratory 

Operation, Quest Diagnostics in Lenexa, Kansas. Ms. Rowland was candid in that she 

could not prove the UA was lawfully obtained, to-wit:

“Q. In this particular care, Ms. Rowland, you don‟t have any knowledge of how this 

sample was collected on May 13, 2009, do you? 

A. I could not testify or have knowledge of how the specimen was collected, that‟s 

correct.

Q. And to save time, if I asked if the collector had a uniform or he wore gloves or he 

washed his hands or a whole number of things there, you wouldn‟t have any knowledge 

on any of those, would you?

A. No, sir, I would not.” (TR Page 113, Lines 12-21).

“Q. Ma‟am, in preparing for this case, have you have a chance to ever interview the 

person who actually took the collection on May 13, 2009? His name is Max Cheramie.

A. No, I would not have done that.

Q. I know you wouldn‟t do it originally when the material came in. Have you done it 

since then?

A. No, I have not.

Q. And do you have anything to offer as to his acts of taking that sample?

C. A. I cannot testify to anything about the collection.” (TR Page 125, Line 25, Page 

126, Lines 1-10). ACCEPTED IN PART, see Decision and Order.

9. Dr. El Sohly was equally candid as the other Coast Guard witnesses that he had 

absolutely no knowledge of the sample collection techniques on May 13, 2009 from this 

Respondent, to-wit:

“Q. Do you have any knowledge of the acts undertaken by the specimen collector on 

May 13, 2009, when he took this sample? 

A. No, I don‟t.

Q. Can you say the sample taken on May 13th was lawfully obtained in conformance 

with 49 CFR Part 40?

A. No, I cannotQ. Okay.

A. Testify to anything regarding the collection of the specimen.

Q. Okay. And that will eliminate a lot of my other questions if you cannot speak to the 

collection. And that is correct, is it not?

A. Yes, I can‟t speak for the collection.” (TR Page 185, Lines 6-20). ACCEPTED IN 

PART, see Decision and Order.

10. Coast Guard MRO Dr. Barry Sachs also readily acknowledged he had no evidence about 

the actual collection procedures of May 13, 2009 used with the Respondent, to-wit:
“Q. Mr. Taliaferro, according to your notes, denied any use of marijuana or anything 

else, didn‟t he?

A. Correct.” (TR Page 223, Lines 4-7).

“Q. Okay, Mr. Taliaferro- you testified earlier Mr. Taliaferro did say the collector did 

not wear gloves. Do you remember saying that?

A. That is correct. It‟s in my notes.

Q. And Mr. Taliaferro brought that to your attention in that phone call did he not?

A. Yes, he did.

Q. When you received that information from Mr. Taliaferro, how did you follow that up?

A. It‟s not the MRO‟s purview to follow up on any problems that occur at the collection 

site. 

Q. Whose purview is it?

A. It‟s up to the collection site to find out if there‟s any problems there.

Q. It‟s up to the individual?

A. Yes, sir.

Q. Okay. But it‟s not your task?

A. No, sir.

Q. Okay. You said that, according to your notes, Mr. Taliaferro said the collector did not 

wear gloves and Mr. Taliaferro denied use of marijuana?

A. Correct.” (TR Page 223, Lines 17-25, Page 224, Lines 1-9).

“Q. Did you ascertain in this case if the collector followed all of those steps?

A. I did not follow the collection steps. So I don‟t know that.” (TR Page 226, Lines 6-

9). ACCEPTED IN PART, see Decision and Order.

11. No Coast Guard witness could testify as to how the UA was lawfully obtained from Mr. 

Taliaferro. None of the above witnesses were present on May 13, 2009. Indeed, none of 

the above witnesses had investigated any actions of Max Cheramie in collecting the 

sample from Mr. Taliaferro. The above witnesses all were unable to provide the Court 

with any testimony to prove that the UA was lawfully obtained from Mr. Taliaferro. 

DENIED.

12. The two physicians produced by the Coast Guard, Dr. El Sohly and Dr. Sachs, 

specifically agreed with the findings of the National Institute on Drug Abuse set forth 

above concerning specimen collection and handling. They agreed that it was utterly 

essential that any UA specimen be collected using appropriate procedures and that the 

validity of the results of the UA depends entirely on the integrity of the specimen. Yet 

the Coast Guard failed to provide any proof in regard to actions that occurred with Mr. 

Taliaferro. The Coast Guard failed to meet its burden of proof that the UA was lawfully 

obtained. ACCEPTED IN PART, REJECTED IN PART. Dr. Elsohly and Dr. Sachs 

agreed with the findings of NIDA; however, the Coast Guard met its burden of proof in 

showing both the integrity of the sample, and that the sample was lawfully obtained. 

13. The burden of proof in this case is on the Coast Guard. The Coast Guard has the burden 

to prove their allegation that Mr. Taliaferro either used or is addicted to the use of 

dangerous drugs. They must prove every element of that proposition by a preponderance 

of the evidence. ACCEPTED.
14. Yet the Coast Guard failed to prove the key, threshold step. The Coast Guard offered no 

evidence from any source or any witness to prove the UA was lawfully obtained. 

Clearly, a tainted UA will not yield a reliable result. And a tainted UA will not show up 

on any laboratory analysis to show how it was tainted, unless seals are visibly broken or 

bottles are broken when they arrive at the designated laboratory. DENIED.

15. Because the Coast Guard did not meet its burden of proof that the UA was lawfully 

obtained, any downstream evidence from laboratories cannot stand if that critical 

threshold step is not met. Thus, the Coast Guard‟s glaring lack of proof is fatal. 

DENIED.

16. The lack of evidence set forth above was the basis of Respondent legal counsel entering 

Motion for Directed Verdict at the close of the Coast Guard evidence (TR Page 230). 

The Court denied the motion because at the conclusion of the Coast Guard evidence the 

Court properly viewed the evidence in the list most favorable to the Coast Guard. Now, 

at the conclusion of the trial, the Court can rule based on the Coast Guard burden of 

proof. REJECTED, this is not a Finding of Fact.

17. Uncontroverted testimony from the Respondent was specific as to the collection 

procedure used on May 13, 2010. Mr. Taliaferro‟s testimony was specific on several 

points, to-wit:

“Q. So anyway, you were rousted out. What happened next?

A. I- the collector, he was- he looked, I mean, real young, no uniform. He was telling 

me about an incident that the company had where they had an employee that was on 

camera smoking crack out in the parking lot before she was going in to take samples. 

And that particular company I guess, Quest, was never allowed back on their 

premises again.

Q. That was offered up by the collector?

A. Yeah.” (TR Page 353, Lines 24-25, Page 354, Lines 1-7).

“Q. Had you ever seen him before in giving samples that you‟ve talked about?

A. No.

Q. So anybody- and he had a uniform?

A. No.

Q. No uniform?

A. No uniform.

Q. Insignia on a T-shirt?

A. No.

Q. Hat?

A. He was in civilian clothes.

Q. Did he have his ID in his pocket or around his neck?

A. No.

Q. ...with a clip? Did you ask him about it?

A. No.

Q. Did you ever see an ID?

A. No I didn‟t.

Q. There wasn‟t one visible to you.
A. No.” (TR Page 355, Lines 7-25, Page 356, Line 1).

“Q. Did he say wash your hands before we begin the process?

A. No.

Q. Did you have any opportunity to wash your hands before you began?

A. No.

Q. Did you see the collector wash his hands?

A. No.

Q. Did the collector wear any gloves?

A. No.

Q. You have been sampled before, have you not? And the records are in here.

A. Yes.

Q. Is there a bathroom in the area where you were there by the chart table?

A. Yes. 

Q. Could you tell, had the bathroom premises been secured?

A. No.

Q. What normally do they do to secure the bathroom?

A. They- they tape off the sink, and they put some kind of dye in the toilet. 

Q. Had any of that been done in this instance?

A. No.

Q. And in light of his request, did you go ahead and provide a sample?

A. Yes.

Q. Did he make any inquiry about any medications that you were on at the time?

A. No.

Q. Were you taking any medications prescribed or over the counter?

A. I was taking Ibuprofen. I usually take that. And I was takingQ. For the record let me stop you there. What kind of drug is that?

A. It‟s just over the counter.

Q. Okay. For what purpose?

A. For muscle aches.

Q. Okay. Pain medication?

A. Yeah.

Q. Okay.

A. Headache.

Q. Okay. So you had taken some of that?

A. Yes. I take it all the time. 

Q. And were you ready to tell him that if somebody asked?

A. Yes.

Q. Besides Ibuprofin, did you have anything else that you had taken?

A. I was taking a couple of muscle supplements. Muscle supplements I‟ve never taken 

before called Bflex and Mdraw. (TR Page 356, Lines 11-25, Page 357, Lines 1-25, Page 

358, Lines 1-14).

“Q. Did he ever ask you if were taking any medication? 

A. No.

Q. Do you ever write down on the back of the form anything about medication?

A. No.

Q. Now, were you cooperative with him?

A. Yes.
Q. Did you follow all his directions?

A. Yes.” (TR Page 359, Lines 10-19). ACCEPTED, see Decision and Order.

18. All of Mr. Taliaferro‟s testimony of actual occurrences on May 13, 2009 was 

uncontroverted. It is the only testimony in the record in that regard from either party. 

The Coast Guard did not challenge or controvert any of Mr. Taliaferro‟s evidence which 

shows the UA was not lawfully obtained. DENIED.

19. Additional evidence in the record from Mr. Taliaferro was his direct and emphatic denial 

of drug use. His denial was specific. It was not controverted by the Coast Guard, to-wit:

“Q. I‟m just going to ask you straight off, the start with, May 13, 2009 were you using or 

had you used marijuana or any illegal substance?

A. No sir.

Q. Anytime leading up to that had you used that while you were out on the voyage?

A. No sir.

Q. Are you a drug user?

A. No.

Q. Are you a regular user of marijuana?

A. No.

Q. Do you socialize with those kinds of people?

A. No.

Q. Is that a part of your lifestyle?

A. No.

Q. And in your- do you have an opinion whether the test, May 13th, was accurate or not?

A. Not accurate.

Q. Okay. Because you know what you did?

A. Yes.

Q. And you know you didn‟t use drugs?

A. Yes.

Q. You didn‟t use marijuana?

A. Yes.” (TR, Page 317, Lines 3-25, Page 318, Line 1). DENIED. 

20. Mr. Taliaferro‟s utter denial of use or abuse of controlled drugs stands uncontroverted in 

the record. DENIED.

21. Respondent proffered several exhibits that were admitted into evidence to support a drug 

free lifestyle and work performance. Exhibits A, B, C, D, E, F, and G were all admitted 

into evidence without objection. All are utterly inconsistent with a person using or 

addicted to DCS as charged herein. DENIED IN PART, see Decision and Order. 

22. In addition, his work performance was formally evaluated by a series of different 

supervisors. All of those positive evaluations were introduced into the record and 

admitted, Exhibits TT, UU, VV, WW, XX, and YY. ACCEPTED AND 

INCORPORATED.

23. In addition, Mr. Taliaferro had submitted to numerous UA‟s before the test of May 13, 

2009. Evidence was introduced of those UA‟s along with Mr. Taliaferro‟s testimony that 
they all ended up negative. See Exhibits P-SS inclusive covering years 1997 to 2009, as 

admitted by the Court. ACCEPTED.

24. In addition, Mr. Taliaferro introduced letters from previous supervisors that were all 

complimentary of his work performance, his punctuality and his attendance and 

performance (Exhibits J, L, M, N, BBB, DDD, EEE, FFF). The transactions and 

incidents and recommendations contained in those exhibits are totally contrary to 

anybody who was using or addicted to controlled dangerous substances. DENIED IN 

PART, see Decision and Order.

25. Further evidence of Mr. Taliaferro‟s sobriety and drug free work performance was his 

emergency actions in 2007 to contain a fire in the immediate area of the engine and the 

intake turbo. Because of his response to that emergency Mr. Taliaferro presented Exhibit 

I signed by the president and chief executive officer of Oceaneering International, Inc. 

and by five other high ranking executives (Exhibit I). The original letter was framed by 

Oceaneering and publically presented to Mr. Taliaferro in front of everybody on board 

the vessel at that time and was demonstrated in Court. (TR Page 346-348). DENIED IN 

PART, see Decision and Order.

26. Clearly, Mr. Taliaferro could not maintain a strong work record with high personal 

evaluations, pass a number of UA‟s from 1997 to 2009, obtain numerous letters of 

reference and accommodations, and obtain a certificate for his bravery at sea in fighting 

the engine room emergency is he were using or addicted to habit forming drugs as 

alleged. DENIED IN PART, see Decision and Order.

27. Mr. Taliaferro produced four different witnesses who were prior supervisors and 

shipmates who could testify as to Mr. Taliaferro‟s day-to-day work performance. They 

were all very complimentary. Nothing was offered by the Coast Guard to attack any of 

the conclusions offered by Mr. Taliaferro‟s supporting workplace witnesses. The 

witnesses‟ sworn testimony is summarized below. ACCEPTED IN PART, see 

Decision and Order.

28. George Wainwright is the present Operations Manager at Gulf Mark America and had a 

long-time professional acquaintanceship with Mr. Taliaferro. Mr. Wainwright was 

specific about Mr. Taliaferro‟s positive and highly professional work performance. 

“Q. And over what period of time did he go from a young engineer to the chief engineer 

position?

A. Probably about a three-year slot, I think. Maybe about 3 or 4 years. But he moved 

right along quickly. Gus is a good, hard-working, sharp, young man.

Q. And in your professional duties on that vessel did you from time to time 

professionally interact with Mr. Taliaferro?

A. Yes, sir, everyday.

Q. Okay. Can you advise the Court, from your everyday interaction with him, what was 

his general work performance?

A. Gus has always been very professional. He‟s a very meticulous, hard-working young 

gentleman.

Q. Is he dependable?

A. Absolutely. 

Q. Is he punctual?
A. Absolutely.

Q. Did you find him to be honest?

A. Yes.

Q. Was there any time where you found him to be the contrary, or dishonest?

A. No, sir, not at any time.

Q. Do you have any recollection of his added aptitude or ability to showing leadership 

on the ship?

A. Gus has always taken charge. He‟s always, like I say, taking charge. He‟s always 

stepped right up and taken whatever task was assigned and looked for things to-to better 

the ship‟s operation.

And since he has come to work with Gulf Mark, Gus has really done an outstanding job. 

He‟s been a real asset to train. He runs a very professional engine room. I‟ve have 

nothing but great reports on him.” (TR Page 236, Lines 10-25, Page 237, Lines 1-18).

“Q. And have you ever had any doubt to any question about his word or his truthfulness?

A. Not at all, absolutely none.” (TR Page 238, Lines 23-25). ACCEPTED.

29. Mr. Cook testified he was retired from the US Coast Guard in 2005 and had been a 

merchant mariner since September, 2007 with Oceaneering. (TR, Page 253). Mr. Cook 

was specific about Mr. Taliaferro‟s positive work performance, to-wit:

“Q. During that time did you have regular interaction with Mr. Taliaferro?

A. Every day we worked- I was on a 28-14 rotation. And during that time, I would say, 

for at least three quarters of it Mr. Taliaferro and I were both on the same rotation. 

And I see him every single day, report to him and give him status updates of my 

work. And he would also direct me for anything he needed electrical wise or 

engineering wise. So I saw Mr. Taliaferro on a daily basis while we were on the boat.

Q. During that time, could you advise the Judge, did you find him to be punctual?

A. Gus is an extremely conscientious supervisor and chief engineer. I will gladly work 

with him again. Very thorough and straight forward. He‟s very fair. He has a good head 

on his shoulders. I felt very comfortable in any crisis, whether it be fires or any 

mechanical problems we may have, in the interim and on the boat. A wonderful 

supervisor. Good people person also. 

People are different. He would joke around with you. But when it was time to get the 

job done, he made you feel comfortable to get the job done. And I will gladly work with 

Gus again.

Q. Did you find him to be honest and truthful?

A. Extremely. Extremely. Very loyal and truthful.

Q. And did you find him to be professional in his duties?

A. Extremely. Whether he was speaking to the captains or whether he was speaking to 

the master or a brand new oiler, he would give each and all their due respect. And I 

respected him for that. I had no issues whatsoever with Gus as the chief engineer at all.” 

(TR Page 254, Lines 22-25, Page 255, Lines 1-25, Page 256, Lines 1-5). ACCEPTED.

30. Mr. Brazier testified that he was on the sixth issue of his Coast Guard license and had 

worked on many different vessels and in different work stations (TR Page 284). Mr. 

Brazier‟s testimony about Mr. Taliaferro was specific and entirely positive, to-wit:

“Q. And during those- the approximately year and a half to two year period, what was 

your amount of contact with Mr. Taliaferro?
A. Well, my contact with him was- of course, being on the vessel during those either 14 

days or 28 day-periods as running opposite his shift, Gus would change watches with 

me in the morning. And then in the afternoon we would pass watch over, any 

problems I assisted him during repairs. And I worked with Gus in that capacity. So 

our shifts were 12 hours. Of course, we met during our lunch breaks or suppers.

Q. How would you characterize his work performance, Mr. Brazier?

A. I would say excellent as chief engineer. He was conscientious of his job, 

conscientious of other responsibilities, and he carried it out quite well. As a chief 

engineer, he was doing quite well, in my opinion.

Q. Did you find him to be punctual?

A. Yes, sir, he was punctual. In fact, I was never relieved late on watch. And he did 

quite- that‟s usually a big item. After spending 12 hours you‟re waiting for relief to show 

up. So, yes, he was punctual.

Q. Did you find him generally dependable?

A. Yes, sire, I did.

Q. And what did you find was his reputation for truth and veracity?

A. An honest man of good character is what I found him to be. That goes without 

saying. He‟s never lied to me. I didn‟t- none of us- well, I personally don‟t get involved 

in the semantics of different people on the crew or this and that, you know, but how the 

talk goes aboard some of those vessels, but Gus handled it as a professional and handled 

the crew or his oiler or a QMed that was on his shift, one with me and one on his shift. 

He handled them all in a professional manner. So I‟d say his character would be great. 

(TR Page 286, Lines 23-25, Page 287, Lines 1-25, Page 288, Lines 1-10). ACCEPTED.

31. Mr. Mansfield testified that he was a chief engineer employed by Oceaneering during the 

time in question. Mr. Mansfield testified as to his personal interaction with Mr. 

Taliaferro, to-wit:

“Q. Do you have occasion during that time to watch his work performance? 

A. Yes sir.

Q. Can you advise the Judge what is your estimation of his work performance in the 

chief engineer position?

A. Very professional. I mean, very professional. Gus was the type of chief you were 

glad to work with because he treated you fair, but he wanted to get the job done right.

Q. Okay.

A. There wasn‟t no cutting corners.

Q. Okay. Did you find him to be punctual?

A. Yes, sir.

Q. Dependable?

A. Say it again?

Q. Dependable?

A. Yes sir.

Q. Did you find him to be honest or dishonest?

A. Oh, no, Gus was honest. He didn‟t pull no punches. He didn‟t hide nothing. And he 

didn‟t lie to you.

Q. Okay. And would you be willing to serve with him again?

A. Oh, yes, sir. It would be an honor to serve with him again.

Q. Did he previously ask you to write a letter on his behalf?
A. I had heard about the incident with the Coast Guard and wrote the letter, yes, sir. I 

volunteered to do it and told him if he needed, I would do it.” (TR Page 305, Lines 2-25, 

Page 306, Lines 1-7). 

“Q. And in your estimation he was an honest and good person, and so you volunteered to 

write this letter?

A. Yes, sir. Gus is an excellent person. He‟s knowledgeable. He does the job. He‟s 

safety oriented. He‟s for his crew and for the boat, but he always wants to make sure 

he sets a good example for everybody to follow.

Q. And your letter speaks to that, does it not?

A. I believe so, yes sir.” (TR Page 307, Lines 12-21). ACCEPTED.

32. Several of Respondent‟s witnesses also identified improprieties in prior substance abuse 

collection and testing procedures. That testimony included the following, to-wit: 

ACCEPTED. 

32. Mr. Wainwright testified that two Oceaneering employees were tested and discharged, 

“under dubious circumstances,”

“Q. You used the phrase that it was under dubious circumstances. Did I hear you 

correct?

A. That is correct.

Q. What do you mean by that?

A. I‟m trying to remember the whole story on Art Scoggins, on Artie, but I remember 

he- I believe he was- had some illness and was- had been prescribed medicines. And he 

notified them and told them. And they- when he failed the drug test, they neglected to 

take that into context and pretty much told him that that was- it wasn‟t their problem.

Q. Did he make clear to them what medications he had taken?

A. Yes, he did. He filled out the paperwork on the drug form before he took the test and 

all. I remember a lot of that now. 

Q. Okay.

A. But, as I say, that was- I think that was about the second time I saw that happen over 

there, that somebody was falsely claimed or accused of having an illegal substance.

Q. But right or wrong, he was put down as failing the drug test, was he not?

A. That‟s correct. Yes, he was.

Q. And you were telling us about a galley hand. You remember that a minute ago?

A. Yes, sir.

Q. Do you remember his name?

A. Gordon- I‟m trying to remember Gordon‟s last name. But he was a nice fellow. HeGordon was also terminated for the same reasons. And I wish I could think of Gordon‟s 

last name, but I remember Gordon though.

Q. Were both of these done under the obsesses of the company Oceaneering?

A. That‟s correct.” (TR Page 242, Lines 7-25, Page 243, Lines 1-17). ACCEPTED.

34. William Mansfield also testified as to substance testing irregularities. His testimony 

concerned chief officer Captain Pat Walsh, to-wit:

“Q. Moving on, are you acquainted at that time with a chief officer Captain Pat Walsh?

A. Yes, sir, I am
Q. Do you know if a breathalyzer test was administered to him and/or around January 

20, 2009?

A. Yes, sir, I do. He took it, what, four times, and couldn‟t pass it. They had to make a 

phone call to someone to get him and let him go on.

Q. Okay. Now, let me ask you first, were you there present to see any of this?

A. The first or second time I was present. I was in the wheel house trying to do my 

analysis and then blow for the breathalyzer.

Q. Okay.

A. And then, when I was in the wheel house, I saw what was going on up there.

Q. But what did you see in regards to Captain Walsh?

A. Pat was- he couldn‟t pass the breathalyzer test. He kept blaming it on the mouthwash, 

and said he‟d washed his mouth out. But, you know, after an hour they did it again, and 

he still couldn‟t pass it. And finally, the captain on board had to make a phone call to 

somebody and- so they could get on with this. And they said let Pat go, just leave him 

alone, he‟s okay.

Q. Wait a minute, even though he did not pass the test?

A. That‟s Oceaneering policy. If they like you, if you‟re in the clique, you get away with 

it.” (TR Page 308, Lines 1-25, Page 309, Lines 1-4). ACCEPTED. 

35. Jim Cook also testified as to the collection irregularities on the test of May 5, 2009, towit:

“Q. And- and on that May 5th test, you testified earlier that you had concerns that the 

collector was not wearing gloves; is that correct?

A. That‟s correct.

Q. And if you had concerns, why would you continue on with the test?

A. Well, I didn‟t want to rock the boat, I guess. I didn‟t think anything was going to 

happen, but I was more vigilant on my sample at the time. I held my sample until it was 

sealed. 

Q. Okay, sir. If the individuals- do you recall all the individuals that took the test on 

May 5th of 2009 on the Ocean Intervention?

A. Yes, myself, Gus Taliaferro, Jeff Wolfe, a cook by the name of Derek Belhumeur, 

and then whatever captains were on board. I don‟t recall who that was at the time that 

was actually physically taking the test at that time.” (TR Page 271, Lines 21-25, Page 

272, Lines 1-13). ACCEPTED.

36. Aubrey Taliaferro testified on her own behalf. She is licensed in Oklahoma as a 

Registered Nurse in good standing (TR 400). Therefore she has professional and 

personal acquaintanceship with controlled dangerous substances (CDS). In responding to 

questions about persons who use CDS Ms. Taliaferro testified as follows, to-wit:

“Q. And do you have an opinion, whether you want any of those around you?

A. I do not.

Q. Do you want any of those around your children?

A. No sir. 

Q. Do you, therefore, personally use any CDS that‟s not prescribed by a physician?

A. No sir.

Q. Do you allow anybody around you to recreationally use any CDS?

A. No, sir.

Q. Would you put up with Mr. Taliaferro or anybody else in your home using CDS?
A. No, sir.

Q. Or exposing your children to any of those dangers?

A. No, sir. 

Q. You sound like a no tolerance person for CDS. Is that a fair statement?

A. Yes, sir.

Q. And you don‟t socialize with people who use that, do you?

A. No, sir. 

Q. My grandchild on Sunday asked me to sit down an “chill” with him. Do you even sit 

down a chill with anybody who uses CDS?

A. No, sir.

Q. Do you allow it in your home?

A. No, sir.

Q. Around your children?

A. No, sir.

Q. Any vehicles?

A. No, sir.” (TR Page 402, Lines 9-25, Page 403, Lines 1-16). ACCEPTED.

37. Ms. Taliaferro‟s testimony was equally certain in regard to the conduct of her husband, 

to-wit:

“Q. You‟ve been married to Mr. Taliaferro since August of 2007, and you‟ve known him 

before then probably?

A. Yes, sir.

Q. Can you tell the Judge is Mr. Taliaferro a person who uses CDS?

A. No, sir. 

Q. We are- have you seen him use that during the time you have known him?

A. No, sir.

Q. Even if you didn‟t see him use it, are you aware as a nurse what some of the effects of 

somebody who has used it and us under the influence?

A. No, sir. 

Q. Okay. You‟re not aware of what the effects are?

A. No, I‟m not aware of him showing any effects.

Q. Okay. That‟s my question. Did he ever exhibit any of those traits of anybody who 

has been using?

A. No, sir.

Q. He is here because he‟s charged with the use of dangerous drugs, in part. Have you 

ever seen any evidence that he has ever used dangerous drugs?

A. No.

Q. He is here in part because he is charged in the alternative with addiction to the use of 

dangerous drugs. 

A. Yes.

Q. Have you ever seen him exhibit any of those traits of anybody who is addicted to the 

use of CDS?

A. No, sir.” (TR Page 403, Lines 17-25, Page 404, Lines 1-23). ACCEPTED.

38. After the evidence was taken by the Judge on October 26 and 27, 2010, and without any 

adverse findings by the ALJ, Mr. Taliaferro‟s employer, Gulfmark America would not 

allow him to return for duty until Mr. Taliaferro was formally evaluated for any alcohol 

or substance abuse. ACCEPTED.
39. Mr. Taliaferro immediately arranged for an evaluation to be performed at Chuska 

Consulting, 401 Chickasaw Avenue, Chickasaw, Oklahoma by a Licensed Professional 

Counselor and a Licensed Alcohol and Other Drug Counselor, Substance Abuse 

Professional, Ruth Ann Helton. After testing it was Ms. Helton‟s evaluation that Mr. 

Taliaferro had a “low probability of have a substance dependence disorder.” (See Exhibit 

A). Ms. Helton signed off on a Return to Duty Agreement on November 15, 2010 for 

Mr. Taliaferro after Mr. Taliaferro completed a 10-hour educational counseling class. 

Copies of those materials are attached hereto and marked Exhibit A. ACCEPTED. 

 

Respondent’s Proposed Conclusions of Law

1. The Coast Guard failed to fulfill its burden of proof. DENIED.

2. 49 CFR 40.40 controls the collection and analysis of samples for substance abuse under 

Coast Guard regulations and is named in the Oceaneering Company Policy on alcohol 

and drug abuse. (Coast Guard Exhibit 3). ACCEPTED IN PART, see Decision and 

Order.

3. Under 49 CFR 40.11(a) the employer must meet all the collection requirements. In this 

case the only witness from the employer, Oceaneering, was not aware that the employer 

had that duty, and admitted neither she nor Oceaneering followed any procedure to 

evaluate the sample Collection process in this case, or in any other case. DENIED IN 

PART, see Decision and Order.

4. 49 CFR 40.43(a) requires the collection site to be secured. Uncontroverted testimony 

from Mr. Taliaferro proves that on May 13, 2009 the collection site was not secured by 

the employer or the collector. DENIED IN PART, see Decision and Order.

5. 49 CFR 40.41(e)(2) requires the source of water for washing hands. This record has no 

testimony that a source of water was provided for washings hands or that there was any 

opportunity for that purpose. The testimony from Mr. Taliaferro shows violation of this 

provision. DENIED IN PART, see Decision and Order.

6. 49 CFR 40.61(d) requires the collector to provide an ID to an employee if it is requested. 

But evidence from Mr. Taliaferro proved the collector wore no uniform, had no T-shirt, 

there was no insignia, there was no hat and there was no ID that was readily apparent. 

That same testimony was provided by Mr. Cook. DENIED IN PART, see Decision and 

Order. Further, as discussed above, Respondent admitted he never requested to see an 

ID from the collector. 

7. 49 CFR 40.61(g) required the collector to ask Mr. Taliaferro is he was presently taking 

any medications so they could be listed in the record. Testimony from Mr. Taliaferro 

showed that the collector failed in that regard. DENIED. 49 C.F.R. § 40.61(g) does not 

require this. Rather, 49 C.F.R. § 40.61(g) states in relevant part, “You must instruct the 

employee not to list medications that he or she is currently taking on the CCF.” 

8. 49 CFR 40.63(b) gives the collector an affirmative duty to instruct an employee to wash 

his hands at the beginning of the testing process. Uncontroverted testimony from Mr. 
Taliaferro was that the collector did not advise him to wash his hands or give Mr. 

Taliaferro any opportunity to wash his hands. DENIED IN PART, see Decision and 

Order.

9. 40 CFR 40.65(a)(1) sets forth the condition known as “shy bladder.” Curative 

procedures are set forth at 49 CFR 40.193(b)(2). The Coast Guard does not have 

evidence about Mr. Taliaferro‟s inability to immediately provide a sample after he was 

rousted out and the Coast Guard has no evidence that the sample collected complied with 

those requirements on time and amount of fluid that may be consumed by a person 

providing a bodily-fluid sample. DENIED IN PART, see Decision and Order.

10. 49 CFR 40.191(a)(8) provides that the employee cannot refuse to wash his hands when 

directed. There is nothing in the record that Mr. Taliaferro was ever offered the 

opportunity to wash his hands at the beginning of the testing process. DENIED. 49 

C.F.R. § 40.191(a)(8) states that an employee has refused to take a drug test if he or she 

“[f]ail[s] to cooperate with any part of the testing process.” The record contains no 

allegation that Respondent refused to take the drug test. 

11. 49 CFR 40.45(c) prohibits the collector from modifying the collection form. There is 

uncontroverted evidence in this case that the collector modified the collection form by 

omitting the time the collection was taken and made further modification by scratching 

out and modifying the form on the headline for Oceaneering. Such modifications are not 

authorized by §40.45(c). DENIED. 49 C.F.R. § 40.45(c)(2) explains that modifications 

and revisions are permitted to indicate “...the names, addresses, telephone numbers and 

fax numbers of the employer...”. In the instant case, the form was modified to indicate 

the correct employer name. Further, 49 C.F.R. § 40.45(c) addresses modifications and 

revisions to the CCF, not omissions. 

12. Collection guidelines from the United States Department of Transportation, Revised 

August 31, 2009 show that single use, disposable gloves are recommended for use by 

collectors when handling specimens. Testimony is clear from Mr. Taliaferro and Mr. 

Cook that the collector on May 13, 2009 did not wear gloves. DENIED IN PART, see 

Decision and Order.

13. The aforesaid violations of 49 CFR Part 40 totally undercut the integrity of the original 

sample given by Mr. Taliaferro on May 13, 2009. DENIED.

14. As noted by the National Institute on Drug Abuse and Research Monograph No. 73, a 

urine test can be used when reliable only if it is performed using appropriate procedures 

and further the validity of the results of a urine test “are dependent on the integrity of the 

specimen.” When the integrity of the original specimen is not established, subsequent 

test results are rendered irrelevant and cannot be used to attack a professional license. 

ACCEPTED.

15. Additional testimony offered by Mr. Taliaferro, Aubrey Taliaferro, George Wainwright, 

Jim Cook, James William Brazier, and William Mansfield also contained weigh and 

established that Mr. Taliaferro was not a user of controlled dangerous substances and is 

not addicted thereto despite the bald allegations made by the Coast Guard. DENIED.
16. In light of the evidence received in this case it is clear the Coast Guard has failed in its 

burden of proof to prove that the UA collected from Mr. Taliaferro on May 13, 2009 was 

lawfully obtained and that evidence along with the Respondent‟s evidence and 

admissions of other Coast Guard witnesses set forth above the Coast Guard has failed in 

its burden of proof. DENIED. 

 
ATTACHMENT C

33 CFR 20.1001 General.

(a) Any party may appeal the ALJ‟s decision by filing a notice of appeal. The party shall 

file the notice with the U. S. Coast Guard Administrative Law Judge Docketing Center; 

Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, MD 21201-

4022. The party shall file the notice 30 days or less after issuance of the decision, and 

shall serve a copy of it on the other party and each interested person.

(b) No party may appeal except on the following issues:

(1) Whether each finding of fact is supported by substantial evidence.

(2) Whether each conclusion of law accords with applicable law, precedent, and 

public policy.

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

(4) The ALJ‟s denial of a motion for disqualification.

(c) No interested person may appeal a summary decision except on the issue that no 

hearing was held or that in the issuance of the decision the ALJ did not consider evidence

that that person would have presented.

(d) The appeal must follow the procedural requirements of this subpart.

33 CFR 20.1002 Records on appeal.

(a) The record of the proceeding constitutes the record for decision on appeal.

(b) If the respondent requests a copy of the transcript of the hearing as part of the record 

of proceeding, then, --

(1) If the hearing was recorded at Federal expense, the Coast

Guard will provide the transcript on payment of the fees prescribed in 49 CFR 

7.45; but,

(2) If the hearing was recorded by a Federal contractor, the contractor will provide 

the transcript on the terms prescribed in 49 CFR 7.45.

33 CFR 20.1003 Procedures for appeal.

(a) Each party appealing the ALJ‟s decision or ruling shall file an appellate brief with the

Commandant at the following address: U.S. Coast Guard Administrative Law Judge 

Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; 

Baltimore, MD 21201-4022, and shall serve a copy of the brief on every other party.

(1) The appellate brief must set forth the appellant's specific objections to the 

decision or ruling. The brief must set forth, in detail, the --

(i) Basis for the appeal;

(ii) Reasons supporting the appeal; and

(iii) Relief requested in the appeal.

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

brief must specifically refer to the pertinent parts of the record.

(3) The appellate brief must reach the Docketing Center 60 days or less after 

service of the ALJ‟s decision. Unless filed within this time, or within another time 

period authorized in writing by the Docketing Center, the brief will be untimely.

(b) Any party may file a reply brief with the Docketing Center 35 days or less after 

service of the appellate brief. Each such party shall serve a copy on every other party. If 
the party filing the reply brief relies on evidence contained in the record for the appeal, 

that brief must specifically refer to the pertinent parts of the record.

(c) No party may file more than one appellate brief or reply brief, unless --

(1) The party has petitioned the Commandant in writing; and

(2) The Commandant has granted leave to file an added brief, in which event the 

Commandant will allow a reasonable time for the party to file that brief.

(d) The Commandant may accept an amicus curiae brief from any person in an appeal of 

an ALJ‟s decision.

33 CFR 20.1004 Decisions on appeal.

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

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

or reverse the ALJ‟s decision or should remand the case for further proceedings.

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

copy of the decision on each party and interested person.