UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED ST ATES OF AMERICA 

UNITED STATES COAST GUARD 

VS. 

LICENSE NO. 799349 

and 

MERCHANT MARINER DOCUMENT 

Issued to: DOMINIC McDONALD 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

NO. 2646 

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

and the procedures set forth in 33 C.F.R. Part 20. 

By a Decision and Order (D&O) dated November 9, 2001 , an Administrative Law 

Judge (AU) of the United States Coast Guard at Houston, Texas, suspended 

Dominic McDonald's (Respondent's) above-captioned merchant mariner document and 

license for twelve months upon finding proved a charge of misconduct. 

Respondent was charged with a single specification of misconduct under 

46 U.S.C. § 7703 and 46 C.F.R. § 5.27, in that while engaged in official matters under the 

authority of his license and merchant mariner document, Respondent wrongfully refused 

to submit to required chemical testing for dangerous drugs by providing a substituted 

urine specimen during a pre-employment drug screening on July 31, 2000. The preemployment drug screening was in preparation for Respondent's bidding on union 

contracted work as required by the Masters, Mates, and Pilots Union. The specimen that 

Respondent submitted was later determined to have been inconsistent with human urine. 
McDONALD NO. 2646 

Coast Guard Marine Safety Unit Galveston, Texas, detennined that Respondent's alleged 

submission of non-human urine constituted a refusal to submit to a urinalysis test 

pursuant to 46 C.F.R. § 16.105. As a consequence, Marine Safety Unit Galveston sought 

revocation of Respondent's license and merchant mariner document. 

PROCEDURAL HISTORY 

Hearings were held in Houston, Texas, on May 16-18, 2001, June 7, 2001, and 

July 12, 2001. Respondent appeared with counsel and entered a response denying the 

charge. The Coast Guard Investigating Officer introduced into evidence the testimony of 

5 witnesses and 12 exhibits. Respondent introduced into evidence his own testimony, the 

testimony of 3 additional witnesses, and 18 exhibits. The ALJ's D&O was served on 

Respondent and his counsel on November 14, 200 I, and Respondent filed a timely notice 

of appeal on December 7, 2001. Respondent filed a timely brief on February 26, 2002, 

under an approved extension. The Coast Guard filed a reply brief on April 2, 2002. This 

appeal is properly before me. 

APPEARANCES: William Hewig, III, Esq., Kopelman and Paige, P.C., 31 St. 

James Avenue, Boston, MA, and Ernest Allen Cohen, Esq., P.O. Box 37273, Tuscon, 

AZ, for Respondent. The Coast Guard was represented by Petty Officer Kenneth Bellino, 

USCG, stationed at Marine Safety Office Galveston, TX. 

FACTS 

At all times relevant to this Appeal, Respondent served under the authority of the 

above-captioned merchant mariner document and license. Respondent went to Concentra 

Medical Center in Houston, Texas, on July 31, 2000, to give a urine sample for a preemployment drug test in order to obtain a certificate from the Master, Mates, and Pilots 

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McDONALD NO. 2646 

Union that he was drug free. [Transcript (Tr.) vol. II at 263, 266) Such a certificate 

would make him eligible to obtain a union contract position in the U.S. Merchant Marine 

as an officer or mate. [Tr. vol. I at 66-67) 

Ms. Patricia Rodriguez is a medical assistant at Concentra Medical Center. [Tr. 

vol. I at 108) Concentra Medical Center was the designated collection facility for the 

Masters, Mates, and Pilots Union. [Tr. vol. I at 64] On July 31, 2000, Ms. Rodriguez, an 

experienced collector, collected a filled specimen container from Respondent at 

Concentra Medical Center. [Tr. vol. I at 117-118] In the beginning of the collection 

process, Ms. Rodriguez identified Respondent by the photo identification on his state 

driver's license and verified his social security number. [Tr. vol. I at 113-114) 

Respondent took the collection container that Ms. Rodriguez provided and proceeded to a 

restroom. Behind closed doors and outside of Ms. Rodriguez's presence, Respondent 

filled the specimen cup, left the restroom, and returned the cup to Ms. Rodriguez. [Tr. 

vol. I at 120) Ms. Rodriguez, as part of her normal routine, had Respondent fill out a 

Drug Testing Custody and Control Form (DTCCF). In addition, Ms. Rodriguez placed 

the contents of the specimen into two separate containers. Upon receipt of Respondent's 

urine specimen, Ms. Rodriguez sealed both of Respondent's specimen containers in 

Respondent's presence. [Tr. vol. II at 288-289] Respondent signed the DTCCF for his 

sample in Ms. Rodriguez's presence signifying both that the specimen containers were 

sealed in Respondent's presence and that the information in the DTCCF was correct. [Tr. 

vol. I at 118-119] 

The specimens were sent by courier to Quest Diagnostics. [Investigating Officer 

(1.0.) Exhibits 2, 3) Quest Diagnostics is a federally certified drug testing laboratory. 

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McDONALD NO. 2646 

[LO. Exhibit 5] A screening test was performed at Quest Diagnostics, which revealed 

that Respondent's urine creatinine concentration was 3 milligrams per deciliter and that 

his urine's specific gravity level was 1.001. [1.0. Exhibits 3 - 5] The certifying scientist 

at the laboratory reported this result as a substituted specimen that was not consistent 

with human urine. [I.O. Exhibit 4) 

U.S. Department of Health and Human Services (DHHS) Document 35 of 

September 28, 1998, as confirmed by the U.S. Department ofTransportation's 

Complementary Memorandum of the same date, set the standards for defining a urine 

specimen as a substitute specimen. Under these standards, a creatinine concentration 

level of under 6 milligrams per deciliter and a specific gravity level of at least 1.001 

indicates urine outside nonnal limits and is a substituted sample. [1.0. Exhibit 9] Under 

these guidelines, Respondent's urine specimen was reported to the Master, Mates, and 

Pilots Union as substituted and not consistent with human urine. [1.0. Exhibit I] A 

confirmatory test was neither required nor conducted. (I.O. Exhibit 9) 

BASES OF APPEAL 

This appeal is taken from the D&O imposed by the ALJ finding proved the charge 

of Misconduct. Respondent asserts the following bases of appeal: 

I Certain findings of fact are not supported by substantial evidence, 

specifically findings nos. 14, 33, 34, 36, 42, 43 and "Ultimate Finding of 

Fact" and "Conclusion of Law No. 7." 

II Certain Conclusions of Law do not accord with applicable law, precedent, 

and public policy, specifically conclusions nos. 4 and 5. 

Ill The AL! abused his discretion in finding the Coast Guard's case proven 

because there was no evidence of statistical validity to support the Coast 

Guard's prima (acie case of "substitution. " 

IV. The decision and proceedings taken on the whole represent a violation of 

Respondent's constitutionally guaranteed right of due process under 

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McDONALD NO. 2646 

Amendment V to the Constitution of the United States, because the 

procedure, trial and tribunal to which .~1cDonald was subjected was so 

fundamentally unfair as to be constitutionally impermissible. 

OPINION 

This Decision is based on the regulations that were in effect at the time of the preemployment drug test in question, July 31, 2000. Subsequent to the events giving rise to 

this case, the regulations in question (49 C.F.R. Part 40) were modified in January 2001. 

The same regulations were again modified while this Appeal was in process, in May 

2003. As such, I will address the issue ofretroactivity. 

rn both instances when the regulations in 49 C.F.R. Part 40 were changed, the 

Department of Transportation (DOT) did not include any affirmative language to indicate 

that the regulations were intended to be retroactive. In fact, in both instances where the 

regulations were changed, it was apparent that the DOT specifically intended that the new 

regulations be prospective. The DOT implemented changes to 49 C.F.R. Part 40 partly in 

January 2001. [65 F.R. 79462] No language was included in that change calling for 

retroactivity, a clear indication that the regulations were intended to be prospective. In 

the most recent May 2003 amendments, DOT was even more specific, stating that if an 

"employer received a substituted result. .. before the effective date of this amendment 

(May 28, 2003)" the result was to be treated as substituted as provided in the prior 

49 C.F .R. Part 40. [ 68 F.R. 31625] 

There is a strong presumption against retroactive application of laws and 

regulations, and a strong presumption in favor of prospective application. The United 

States Supreme Court has ruled, "Retroactivity is not favored in the law. Thus, 

congressional enactments and administrative rules will not be construed to have 

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McDONALD NO. 2646 

retroactive effect unless their language requires this result." Bowen v. Secretary of 

Health & Human Services, 488 U.S. 204, 208, 109 S. Ct. 468, 102 L.Ed. 2d 493 (1988). 

For these reasons, there is a clear indication that DOT intended for the May, 2003, 

regulatory changes to be prospective. As a result, this Decision will be governed by the 

definition of "substitute specimen" and the procedures required for that scenario 

applicable on July 31, 2000 when Respondent submitted his urine specimen, not the 

provisions subsequently enacted. 

I. 

Certain findings of fact are not supported by the evidence, specifically findings nos. 14, 

33, 34, 36, 42, 43 and "Ultimate Finding of Fact" and "Conclusion of Law No. 7. " 

I may only reverse the ALJ's decision if his findings are arbitrary, capricious, 

clearly erroneous, or based on inherently incredible evidence. Appeal Decisions 2584 

(SHAKESPEARE), 2570 (HARRIS), aff' NTSB Order No. EM-1 82 (1996), 2390 

(PURSER), 2363 (MANN), 2344 CKOHAJDA), 2333 (AYALA), 2581 (DRIGGERS), 

and 2474 (CARMIENK.E)." 

Findings of Fact 14, 33, and 34 went to the issue of whether overhydration could 

cause a urine sample to be determined substituted, and to the scientific reliability of the 

evidence the Coast Guard presented in its case in chief. Findings of Fact 36 and 42 went 

to the credibility and weight the ALJ gave to the testimony of the MRO, a witness for the 

Coast Guard, and to the Substance Abuse Professional (SAP), called by the Respondent. 

In Finding of Fact 43, the ALJ found there was no medical explanation for the test 

results. In Ultimate Finding of Fact and Conclusion of Law 7, the ALJ found that the 

Respondent's expert witness, Dr. Anthony Colucci was not credible. 

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McDONALD NO. 2646 

I have long held that it is the sole purview of the ALJ to determine the weight of 

evidence and to make credibility determinations. Appeal Decision 2156 (EDWARDS); 

Appeal Decision 2116 (BAGGETT); Appeal Decision 2472 (GARDNER). In this case, 

the AU reviewed scientific evidence including a DHHS report on urine specimen 

validity testing [I.O. Exhibit 9], scientific papers on the characterization of urine for 

specimen validity determination in workplace drug testing from the Journal of Analytical 

Toxicology (1.0. Exhibit 10], and another on measuring creatinine and specific gravity 

after water loading from the Society of Forensic Toxicologists. [1.0. Exhibit 11] The AU 

also heard direct and cross-examination of witnesses for the Coast Guard, including the 

MRO, [Tr. vol. 2 at 20-32, 110, 122] and the Respondent, including the SAP. [Tr. vol. Ill 

at 28-29] The ALJ found that the Coast Guard proved its case in chief by a 

preponderance of the evidence; he did not find the evidence presented by Respondent 

sufficient to overcome that preponderance. On review of the record, I do not find any 

indication that the ALJ's determination of facts and conclusions of law were arbitrary or 

capricious, not supported by law, or clearly erroneous. Sufficient material exists in the 

record to support his findings. Therefore, I reject Respondent's first Basis of Appeal. 

II. 

Certain conclusions of law do not accord with applicable law, precedent, and public 

policy, specifically conclusions nos. 4 and 5. 

In Ultimate Finding of Fact and Conclusion of Law 4, the ALJ found that the 

Coast Guard had proved by a preponderance of reliable, probative, substantial and 

credible evidence that Respondent committed misconduct. [D&O at 20] Ultimate 

Finding of Fact and Conclusion of Law 5 was the AU's determination that the 

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McDONALD NO. 2646 

Respondent had failed to rebut or otherwise discredit the Coast Guard's case and proof. 

[D&O at 20] 

Respondent contends in his brief that, to the contrary, the Coast Guard did not 

meet its initial burden of proof because the Coast Guard never proved that he physically 

altered, substituted, or manipulated his urine sample. Respondent also contends that an 

unlawful presumption was created, improperly shifting the burden of proof to 

Respondent. Respondent also argues, nonetheless, that he successfully rebutted the Coast 

Guard's prima facie case. 

In his D&O, the ALJ found that the evidence presented by the Coast Guard, 

including a determination by a federally certified drug-testing laboratory that 

Respondent's July 31, 2000, urine specimen was substituted, was evidence proving by a 

"preponderance of reliable, probative, and substantial evidence" that Respondent refused 

to submit to chemical testing within the meaning of 46 C.F .R. § 16. l 05 (2000). [D&O at 

27] The ALJ also found that Respondent failed to provide evidence to counter the 

evidence presented by the Coast Guard. 

The ALJ's use oflanguage sometimes associated with a presumption '("rebut or 

otherwise discredit" [D&O at 20]) in characterizing the Respondent's failure to present 

substantial evidence to support his assertions does not show that the ALJ relied upon an 

impermissible presumption. The text of the ALJ's Ultimate Finding of Fact and 

Conclusion of Law 5, which states that the Respondent "failed to rebut or otherwise 

discredit the Coast Guard's" case [D&O at 20]-a phrase that can be used in the context 

of presumptive evidence and aprimafacie case-is an expression of the ALJ's 

determination that the respondent failed to present evidence to diminish the reliability, 

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McDONALD NO. 2646 

probative value, substance, or credibility of the Coast Guard's case-in-chief. This is not 

an indication of an impermissible burden shift; it means that the ALJ did not find 

Respondent's evidence sufficient to discredit the Coast Guard's case. The record also 

shows that the ALJ found certain evidence Respondent presented detrimental to 

Respondent's own position. 

In addition, the DOT regulations do not create a presumption against an 

individual who submits a sample with a very low creatinine level. In the final rule for 

49 C.F.R. Part 40, "Procedures for Transportation Workplace Drug and Alcohol Testing 

Programs", published in December 2000, DOT specifically stated that the regulatory 

provisions regarding substituted samples and validity testing do not create a 

"presumption of guilt." [See 65 P.R. 79480.] 

Therefore, as discussed above in section I, I will only overturn the ALJ's decision 

if it is arbitrary, capricious, based on inherently incredible evidence, unsupported by law, 

or if the ALJ was clearly erroneous in determining facts. Appeal Decisions 2584 

(SHAKESPEARE), 2570 (HARRIS), a.ff' NTSB Order No. EM-182 (1996), 2390 

(PURSER), 2363 (MANN), 2344 (KOHAJDA), 2333 (AYALA), 2581 (DRIGGERS), 

and 2474 CCARMIENKE). With no indication that the ALl acted in such a marmer, I 

find that Respondent's Bases of Appeal II are not supported by evidence in the record 

and are, therefore, not persuasive. 

III. 

The AL! abused his discretion in finding the Coast Guard's case proven because there 

was no evidence of statistical validity to support the Coast Guard's prima (acie case of 

"substitution. " 

Respondent contends that there is insufficient evidence in the record to support 

the ALJ's conclusion that his urine was substituted. After a careful review of the record, 

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McDONALD NO. 2646 

I do not find Respondent' argument in this regard to be persuasive. Pursuant to the 

standards in effect at the time, urine is "substituted" when it has a creatinine 

concentration level of under 6 milligrams per deciliter and a specific gravity level of at 

least 1.001. [LO. Exhibit 9] Respondent's urine creatinine concentration was 3 

milligrams per deciliter and his urine's specific gravity level was 1.001. [I.O. Exhibits 

3 - 5] Based on this definition, I find that the ALJ did not err in determining that 

Respondent's urine was substituted. Having said that, the issue remaining is whether the 

definition of "substituted sample" in effect at that time is supported by evidence of 

"statistical validity". 

Respondent argues that in order to find the Coast Guard's case proven, the AU 

first had to find that the Coast Guard had presented sufficient evidence of the statistical 

validity of the regulatory standards for a substituted sample. The Coast Guard is charged 

with enforcing the regulations. The Coast Guard does not have to prove the validity of a 

regulation each time it engages in a Suspension and Revocation (S&R) hearing. 

Regulations necessary to enact a statute are subject to an extensive process involving 

public notice, comment, and revision. This process is designed to ensure that regulations 

are reasonable, necessary and proper. Challenges to the validity of a regulation are 

appropriate for the notice and comment periods in the rule-making process, not in the 

administrative enforcement of the regulations. Determining the validity of regulations is 

the province of the Federal courts, which have a long tradition of giving "considerable 

weight . .. to an executive department's construction of a statutory scheme it is entrusted 

to administer''. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837, 844 (1984). Because there is no indication that the regulations were not 

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McDONALD NO. 2646 

developed in accordance with the applicable law, and because of the inappropriateness of 

an executive agency to intrude on the province of the Federal Courts, I find that 

Respondent's Basis of Appeal III is not persuasive. 

IV. 

The Decision and proceedings taken on the whole represent a violation of the 

Respondent's constitutionally guaranteed right of due process under Amendment V to the 

Constitution of the United States, because the procedure, tn"al, and tribunal to which 

McDonald was subjected was so fandamentally unfair as to be constitutionally 

impermissible. 

Respondent contends that the ALJ established an irrebutable presumption, had an 

unalterably closed mind, disparaged witnesses presented by Respondent, and imposed a 

post-hearing requirement upon Respondent's expert witness but not upon the Coast 

Guard's expert witness. These actions by the AU, it is alleged, constituted a denial of 

due process. 

S&R proceedings are administrative, not judicial, proceedings whose purpose is 

to promote safety at sea; judicial review is available in the federal courts. S&R 

proceedings have as the focus of their inquiry issues of compliance with statutes and 

regulations; Constitutional issues are the province of the Federal Courts. 46 U.S.C. 

§7701 et seq. Therefore, I will not make a detennination on Respondent's constitutional 

claims. However, I note that Respondent's due process rights have been safeguarded 

within the Coast Guard's administrative process; a process that has been held to be 

constitutionally sufficient. See, for example, Williams v. Department of Transportation, 

781 F.2d 1573 (11th Cir. 1986). To that end, the record clearly indicates that Respondent 

has been afforded the right to appear before a neutral trier of fact, to face all evidence 

presented against him, to present evidence on his own behalf, to cross-examine the Coast 

Guard's witnesses and to call witnesses on his own behalf, and to appeal the ALJ's 

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McDONALD NO. 2646 

behalf, and to appeal the ALJ's decision to a higher authority. Therefore, although it is 

not my province to determine the validity of the constitutional claims raised by 

Respondent, I have no doubt that such claims would be found baseless upon further 

review. 

CONCLUSION 

The actions of the ALJ had a legally sufficient basis and his decision with respect 

to Assignments of Error I, II, and III was not arbitrary, capricious, or clearly erroneous. 

Because Suspension and Revocation proceedings are administrative, not judicial, and 

because issues of constitutionality are the province of the federal courts, I make no 

determination on the constitutional claims raised within Respondent's Assignment of 

Error IV. Competent, reliable, probative, and substantial evidence existed to support the 

findings and order of the Administrative Law Judge. Therefore, I find Respondent's 

bases of appeal I, II, and III to be without merit. 

ORDER 

The Decision and Order of the Administrative Law Judge is AFFIRMED. 

~ TJ.BARROTT ~ V~ce Admire!, U.S. Coast Guard 

,. IL _ tJ V1.;.., Corrima. 1dant 

Signed at Vv 3hington, D.C., this~ day of~ 2004. 

12