UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

DAVID ALLAN DICKERSON Sr. 

Respondent

_________________________________

Docket Number 2015-0285

Enforcement Activity No. 5213877

DECISION AND ORDER

Date Issued: May 11, 2016

By Administrative Law Judge: Honorable Bruce Tucker Smith

Appearances:

For the Coast Guard;

LTJG Shane E. Palmira

Sector New Orleans

For the Respondent;

David Allan Dickerson Sr., Pro se
I. STATEMENT OF THE CASE

On September 1, 2015, the United States Coast Guard (Coast Guard) filed a Complaint 

against David Allan Dickerson, Sr. (Respondent) seeking revocation of his Coast Guard–issued 

Merchant Mariner’s Credential (credential) alleging use of, or addiction to the use of, dangerous 

drugs—a violation of 46 U.S.C. §7704(c) and 46 C.F.R. §5.35. The Complaint alleges that on 

May 28, 2015, Respondent submitted a sample of his hair, as part of an employer-directed, non46 C.F.R. Part 16 drug test. The hair specimen collected from Respondent subsequently tested 

positive for marijuana metabolites. 

On October 19, 2015, Respondent filed an Answer admitting all jurisdictional allegations 

and admitting some factual allegations. On January 6, 2016, the undersigned convened a 

telephonic pre-hearing conference with the parties and set various discovery dates, as well as a 

hearing date. Thereafter, the parties engaged in discovery and trial preparation. 

 On March 10, 2016, the hearing of this matter commenced in the Administrative Law 

Judge (ALJ) Courtroom, Hale Boggs Federal Building, New Orleans, Louisiana. Lineka N. 

Quijano, Esq. and LTJG Shane Palmira appeared on behalf of the Coast Guard. Respondent 

appeared on his own behalf. The Coast Guard presented the testimony of four witnesses and 

offered eleven exhibits into evidence, all of which were admitted into the record.1 Respondent 

did not testify under oath and did not formally offer any exhibits into evidence. However, 

Respondent did bring several documents with him to the hearing. In an abundance of caution for 

the protection of the Respondent’s due process rights, the undersigned accepted same, without an 

evidentiary foundation, and assigned appropriate evidence markings; Respondent’s Exhibits A –

 

1 Citations referencing the transcript are as follows: Transcript followed by the volume number and page number 

(Tr. at __ ). Citations referring to Coast Guard Exhibits are as follows: CG followed by the exhibit number (CG Ex. 

1, etc.); Respondent’s Exhibits are as follows: Resp. followed by the exhibit letter (Resp. Ex. A, etc.). Attachment 

A sets forth the parties’ witnesses and exhibits. 
G.2

 The Respondent did make several unsworn statements which potentially relate to a claim of 

“innocent ingestion” of marijuana.3 The undersigned explained to Respondent that he was not 

testifying under oath at the time he made those statements, but rather, was simply providing the 

court with an overview of what might transpire in the case to follow. (Tr. at 14, 136, et. seq.). 

Because Respondent elected not to testify under oath, the undersigned did not accept his 

“unsworn” statements as evidence and thus, assigned no evidentiary weight to same. 

After careful review of the entire record, including witness testimony, applicable statutes, 

regulations, and case law, the undersigned finds the allegations as set forth in the Coast Guard in 

the Complaint PROVED. Accordingly, Respondent’s Merchant Mariner’s Credential is 

REVOKED. 

II. FINDINGS OF FACT

After a thorough and careful analysis of the documentary evidence, testimony of the 

witnesses, and the entire record taken as a whole, the undersigned makes the following Findings 

of Fact based on a preponderance of the evidence: 

1. At all relevant times, Respondent was a holder of a valid Coast Guard-issued 

Merchant Mariner’s Credential. (Respondent’s Answer).

2. At all relevant times, Respondent was employed by Galliano Marine Service. 

(Tr. at 43, 57; CG Ex. 1, 2). 

3. At all relevant times, Respondent’s marine employer, Galliano Marine 

Service, maintained a company drug policy prohibiting “the [] use . . . of 

drugs, drug paraphernalia, controlled substances . . . or any mind altering 

substance. . . .” (CG Ex. 1).

4. At all relevant times, Respondent’s marine employer, Galliano Marine 

Service, maintained a company drug policy prohibiting “any employee from 

 

2 Many of those documents bear either no or only marginal relevance to this case. However, those documents that 

can be reasonably read to have bearing on “cure” are discussed below.

3 Query whether the defense of “innocent ingestion” is recognized in Suspension and Revocation cases. Appeal 

Decisions2632(WHITE) (2002) and 2626(DRESSER) (2001) reference such a defense, but do not discuss or 

elaborate. Absent guidance from the Commandant regarding such an affirmative defense, and absent sworn 

testimony from the Respondent, the undersigned elected not to develop the record further on that issue.
having any amount of drugs or controlled substances . . . present in his or her 

body while within the course and scope of his/her employment.” (CG Ex. 1). 

5. At all relevant times, Respondent’s marine employer, Galliano Marine 

Service, maintained a company policy requiring all employees to submit to 

drug testing, including hair analysis. (CG Ex. 2). 

6. On or about March 25, 2013, Respondent signed the Galliano Marine 

Service’s drug and alcohol free work environment policy. (CG Ex. 2). 

7. On May 28, 2015, Respondent submitted a hair sample for a non-DOT drug 

test. (Tr. at 65 - 66). 

8. On May 28, 2015, a hair specimen was collected from Respondent’s head by 

Keith Breaux of C-Port, an entity within Edison Chouest Offshore, the parent 

company of Respondent’s Marine employer, Galliano Marine Service. (CG 

Ex. 5).

9. Keith Breaux is a safety technician employed by Edison Chouest Offshore. 

(Tr. at 52, 55 - 56; CG Ex. 4). Part of Mr. Breaux’s responsibilities as a safety 

technician includes obtaining a hair specimen for drug testing. (Tr. at 52). 

10. On October 21, 2014, Keith Breaux successfully completed Psychemedics 

Sample Collection Training Program. (Tr. at 54; CG Ex. 4) 

11. On May 28, 2015, Keith Breaux used the following hair collection procedure: 

a. Respondent’s hair sample was collected from the back of 

Respondent’s head. (Tr. at 59; CG Ex. 5). 

b. The hair sample taken from Respondent was cut with a pair of 

sanitized scissors. (Tr. at 59).

c. Respondent’s hair sample was then placed into a piece of aluminum 

foil, which was then folded over twice and then sealed in an envelope. 

(Tr. at 59). 

d. Respondent initialed the envelope attesting that only his hair sample 

was contained within the envelope. (Tr. at 59). 

e. Respondent signed the Custody and Control Form consenting to 

testing by a laboratory called Psychemedics. (Tr. at 64; CG. at 5). 

f. The envelope containing Respondent’s hair sample was then placed in 

a clear plastic bag, together with the Custody and Control Form, then 

sealed and shipped to a laboratory via FedEx overnight. (Tr. 60-61). 

g. Keith Breaux testified there were no fatal flaws regarding the hair 

collection of Respondent’s hair sample. (Tr. at 64 - 65). 

12. Psychemedics Lab is accredited by the ANSI-ASQ National Accreditation 

Board/FQS and meets the requirements of international standard ISO/IEC 

17025:2005 demonstrating competence in the field of forensic hair testing. 

(CG. Ex. 7).
13. On May 30, 2015, Psychemedics Laboratory received and tested 

Respondent’s hair specimen bearing the same discreet identification number 

listed on the Psychemedics Forensic Drug Testing Custody and Control form. 

(CG Ex. 8).

14. The initial screening test Psychemedics performed on Respondent’s hair 

sample was an immunoassay test. (Tr. at 79). 

15. The immunoassay test used by Psychemedics Laboratories for the detection of 

illegal drugs in human hair is “cleared” by the Federal Drug Administration 

(FDA). (Tr. at 80 - 81). 

16. When Psychemedics screened Respondent’s hair specimen using its 

immunoassay test, the result was presumptively positive. (CG Ex. 8). 

17. Because Respondent’s specimen was reported as presumptively positive, 

Psychemedics performed a second test, gas chromatography mass

spectrometry (GCMS), as a confirmatory test. (Tr. at 83). 

18. GCMS testing produces quantitative data. (Tr. at 83). 

19. The test cut-off level for marijuana is 1 pictogram per 10 milligrams of 

hair. (Tr. at 86).

20. GCMS testing of Respondent’s hair revealed the presence of carboxy THC, a 

primary marijuana metabolite, in a concentration of 1.6 picograms per 10 

milligrams of hair. (Tr. at 102; CG Ex. 8).

21. The record does not indicate any abnormalities in the drug testing procedures 

or protocols from the time the specimen was harvested from Respondent’s 

head until the time the results were generated. (CG Ex. 8). 

22. Dr. Darren J. Duet, MD is the Chief Medical Officer and Corporate Medical 

Director for Edison Chouest Offshore and was previously a DOT-certified 

Medical Review Officer (MRO). (Tr. at 117-120; CG Ex. 9). 

23. Dr. Duet is a duly-licensed physician in the State of Louisiana. (Tr. at 116; 

CG Ex. 11).

24. As Chief Medical Officer for Edison Chouest Offshore, Dr. Duet received the 

results of Psychemedics’ testing on June 2, 2015 and noted the “positive” test 

result on the Psychemedics Forensic Drug Testing Custody and Control Form. 

(CG Ex. 10). 

25. On or about June 2, 2015, GMS terminated Respondent’s employment as a 

result of the positive drug test. (Tr. at 39). 
III. PRINCIPLES OF LAW

A. Suspension & Revocation Proceedings 

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

at sea. 46 U.S.C. §7701(a). The Coast Guard seeks to revoke Respondent’s credential because 

46 U.S.C. §7704(c) provides a Coast Guard-issued credential shall be revoked if it is proven that 

the holder of the credential has been a user of or addicted to the use of dangerous drugs, unless 

the holder provides satisfactory proof that the holder is cured. (emphasis added). Absent cure, 

ALJs must revoke a mariner’s credential for violations arising under 46 U.S.C. §7704(c). See 

also 46 C.F.R. §5.19(b).

B. Jurisdiction 

Violations of 46 U.S.C. §7704(c) are “holder offenses.” The mariner’s status as a 

“holder” of a current credential establishes jurisdiction under §7704(c) to institute suspension 

and revocation proceedings. Appeal Decision 2560 (CLIFTON) (1995). A mariner need not 

have been acting under the authority of his credentials to be subject to the Coast Guard’s

jurisdiction when a violation of 46 U.S.C. §7704(c) is alleged. Id. Here, it is uncontested that

Respondent is the holder of a credential; therefore, the Coast Guard has jurisdiction over the 

§7704(c) charge. 

C. Standard and Burden of Proof 

 The Administrative Procedure Act (APA), 5 U.S.C. §§551-59, applies to Coast Guard 

Suspension and Revocation proceedings. 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). The undersigned regards the “substantial 

evidence” standard as synonymous the “preponderance of the evidence” standard in Coast Guard 
hearings. 33 C.F.R. §20.701. Under Coast Guard procedural rules and regulations, the burden of 

proof is on the Coast Guard to prove the charges. 33 C.F.R. §20.702(a). 

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. Constr. Laborers Pension Trust for 

S. 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(s) charged. 

Determining the weight of the evidence and making credibility determinations as to the 

evidence is within the sole purview of the ALJ. Appeal Decision 2640 (PASSARO) (2003). 

Additionally, the ALJ is vested with broad discretion in resolving inconsistencies in the 

evidence, and findings do not need to be consistent with all of the evidence in the record as long 

as there is sufficient evidence to reasonably justify the findings reached. Id.; Appeal Decision 

2639 (HAUCK) (2003).

The evidence in this matter largely consists of scientific evidence and expert testimony. 

In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court held that 

Rule 702 of the Federal Rules of Evidence imposes upon the trial court a gatekeeper obligation 

to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but 

reliable.” The Court later extended this requirement to all expert testimony. Kumho Tire Co., 

Ltd. v. Carmichael, 526 U.S. 137 (1999).

Strictly speaking, the Daubert rule does not apply to this proceeding, because Daubert

and its progeny interpret the Federal Rules of Evidence, which do not specifically apply to 

administrative hearings. Nevertheless, “the spirit of Daubert” does apply to administrative 
proceedings because “‘[j]unk science’ has no more place in administrative proceedings than in 

judicial ones.” Lobsters, Inc. v. Evans, 346 F. Supp.2d 340, 344 (D. Mass. 2004) (quoting Niam 

v. Ashcroft, 354 F.3d 652, 660 (7th Cir.2004)). See also Appeal Decision 2670 (WAIN) (2007). 

Thus, one major inquiry the undersigned must make in this matter is whether the scientific 

testimony or evidence introduced by the Coast Guard is not only relevant, but reliable.

IV. ANALYSIS 

The ultimate issue before the undersigned is whether the Coast Guard has proved by a 

preponderance of the evidence that Respondent was a user of, or addicted to the use of, 

dangerous drugs. 

A. DOT-Recognized Drug Testing

Coast Guard regulations implement the Federal Transportation Workplace Drug

Testing Programs. Those regulations are found at 46 C.F.R. Part 16. The testing mandated

in the Coast Guard regulations followsthe procedures set forth by the Department of

Transportation (DOT) in 49 C.F.R. Part 40. Today, most Coast Guard cases charged under

46 U.S.C. § 7704(c) relate to the drug tests mandated in 46 C.F.R. Part 16and conducted in

accordance with 49 C.F.R. Part 40. 

Those regulations define a chemical test as “a scientifically recognized test which

analyzes an individual’s breath, blood, urine, saliva, bodily fluids, or tissues for evidence of

dangerous drug or alcohol use.” 46 C.F.R. § 16.105. Hair testing is not included. Title 46 C.F.R.

Subpart B, says chemical testing “ must be conducted asrequired by this subpart and in

accordance with the procedures detailed in 49 CFR Part 40.” 46 C.F.R. §16.201(a). 

Currently, the DOT drug testing regime in 49 C.F.R Part 40 allows only urinalysis testing. 

However, the test at issue in this case involves hair testing, conducted entirely in

accordance with a private marine employer’s internal policies and procedures.
B. The Galliano Non-DOT Testing Program

At all relevant times, Galliano Marine Service (GMS) employed Respondent. (Tr. 

at 43; CG Ex. 1, 2). GMS’s drug testing procedures, including hair testing, are described

in the company’s personnel manual. (CG Ex. 1, 2). GMS makes all mariners aware of its 

drug policy when a job offer ismade and before the employee is formally hired. The GMS 

Drug and Alcohol Free Work Environment Policy is also posted throughout GMS 

“facilities, and buildings, and vessels, and [discussed during] the new hire orientation 

program.” (Tr. at 32). 

In this case, Respondent received and signed for copies of the drug and alcohol

policies at the time he was hired at GMS. (Id.).

Billy Pellegrin, the GMS Director of Quality, Health, Safety, and Environmental 

Affairs, testified regarding the GMS drug and alcohol program. (Tr. at 24; CG Ex. 1). 

Mr. Pellegrin testified that GMS conducts both DOT testing in accordance with 

the applicable regulations and non-DOT testing in accordance with its own company 

policy. (Tr. at 29; CG. Ex. 1). Mr. Pellegrin explained that GMS utilizes non-DOT 

testing as a means to “extend the timeframe that we actually look for an individual under 

the influence, as well as we extend the type of medicines that we look for as well. . . . 

[including other illicit drugs].” (Tr. at 31). Mr. Pellegrin also testified GMS uses nonDOT testing to ensure its employees are not operating under an altered mental state. (Id.

Mr. Pellegrin further testified that his company’s drug policy is designed to 

“ensure without a shadow of a doubt that the employee understands the company’s drug 

and alcohol free work environment stance, and what conditions he can and/or will be 

tested under.” (Tr. at 36-37). 
Because the GMS testing “was not conducted by or for the State; and the testing

was not required by the State, the testing . . . in this context was not a search within the

meaning of the Fourth Amendment.” Whye v. Concentra Health Servs., Inc., CIV.A.

ELH-12-3432, 2013 WL 5375167 (D. Md. Sept. 24, 2013). “The Fourth Amendment

does not apply to a search or seizure, even an arbitrary one, effected by a private party on

his own initiative.”Whye at *21, citing Skinner v.Railway Labor Exec.Assn., 489 U.S.

602, 614 (1989). However, the evidence shows Respondent knew, prior to accepting

employment with GMS, that a private, non-DOT hair test for drugs could be imposed.

Therefore, the hair test poses no Constitutional issues that would affect the Coast Guard’s

ability to seek revocation of Respondent’s MMC.

Under Coast Guard drug testing rules, if an individual fails a chemical test for

dangerous drugs under 46 C.F.R. Part 16, “the individual will be presumed to be a user of

dangerous drugs.”46 C.F.R. §16.201(b). Because this is not a test under 46 C.F.R. Part 16 

there is no presumption that a positive drug test is sufficient to find Respondent is a user 

of or addicted to the use of dangerous drugs. Instead, the undersigned must determine 

whether the Coast Guard’s evidence of a non-DOT test isscientifically valid and reliable and is 

sufficient to establish Respondent is a user of, or addicted to the use of, dangerous drugs.

C. The Hair Testing in This Case is Scientifically Valid

The Complaint alleges Respondent took a drug test and his hairspecimen

subsequently tested positive for marijuana metabolites as certified by a Medical Review

Officer. The record establishes thatRespondent submitted a hair sample for drug testing

purposes at his employer’s facility, C-Port, on May 28, 2015. (CG Ex. 5). The sample was

collected by Keith Breaux, a trained and certified collector. (CG. Ex. 4, 5).
Mr. Breaux testified that he removed a hair specimen from the Respondent by 

cutting a piece of hair from the root using a pair of sanitized scissors. (Tr. at 59). 

Respondent’s hair specimen was then placed into a piece of aluminum foil, folded 

twice, and then sealed into an envelope. (Id.). 

Once the envelope was sealed, the Respondent placed his initials on the 

envelope attesting that it contained his hair specimen. (Id.). According to Mr. 

Breaux, it is impossible to adulterate the seal of the envelope, inasmuch as it was

folded several times, placed on an adhesive backing, then sealed with red tape that 

can only be cut off once it is sealed. (Tr. at 60). Mr. Breaux testified that once the 

specimen envelope was sealed and the Custody and Control Form was completed, 

both were then placed in a shipping bag, and sealed together with the envelope. (Tr. 

at 60-62). The shipping bag containing the specimen envelope and the Custody and 

Control Form were then immediately shipped via FedEx to Psychemedics 

Laboratories. (Tr. at 60). 

That package was then received by Psychemedics, a DOT-approved laboratory. 

(CG Ex. 5). At Psychemedics, the sample underwent both an immunoassay test and gas 

chromatography, mass spectrometry analysis (GCMS), and both produced a “positive” 

test result. (CG Ex. 8). 

Dr. Ryan B. Paulsen, Senior Analytical Chemist for Mass Spectrometry with 

Psychemedics, testified about the specific procedures his laboratory used in analyzing

Respondent’ssample. (Tr. at 69, et. seq.) He explained that when Psychemedics received 

Respondent’s sample, technicians reviewed the sample to ensure all the tamper evident 

seals were still intact and that the proper chain of custody had been followed. (Tr. at 77). 
After that review, the sample was assigned a laboratory accessioning number 

(LAN), which is different from the donor identification number used on the Custody and 

Control Form. (Id.). The LAN was used, together with a bar code, to track Respondent’s 

sample throughout the testing process. (Id.). A portion of the sample was then weighed 

and analyzed using an FDA-cleared immunoassay test. (Tr. at 77).4 Since the 

immunoassay test revealed a presumptively positive sample, that sample was then 

subjected to a confirmation test by GCMS analysis. (Tr. at 78). Respondent’s sample was 

analyzed the by GCMS and found to contain carboxy THC, a primary marijuana 

metabolite, in a concentration of 1.6 pictograms per 10 milligrams of hair, greater than 

the established cut-off level of 1 pictogram per 10 milligrams of hair. (CG. Ex. 8).

In United States v. Bush, 44 M.J. 646 (A.F.Ct.Crim.App.1996), aff’d 47 M.J. 305

(C.A.A.F.1997), cert. denied, 522 U.S. 1114 (1998), the U.S. Air Force Court of Criminal

Appeals held in a case of first impression that GC/MS hair analysis was properly admitted

in a court-martial to prove the accused’s unlawful use of cocaine. Applying Daubert and

Military Rule of Evidence 702, the court found that mass spectrometer analysis of hair

samples was accepted as scientifically reliable in the relevant community of forensic

chemistry, had been subjected to peer review, and was the subject of a growing body of

professional publications and studies. Id. at 651-52. See also Woods v. Wills, 2005 WL

5990326, at *6 (E.D. Mo. Oct. 27, 2005) (discussing the Bush court’s analysis of GC/MS

hair testing, as well as other courts’ treatment of radioimmunoassay hair analysis, and

finding the testimony of an expert is necessary to establish validity and reliability).

In US. v. Medina, 749 F. Supp 59, 61 (E.D.N.Y. 1990), the court found that

extensive scientific writings on radioimmunoassay hair analysis establish both its reliability

 

4

It is important to emphasize that Psychemedics immunoassay tests have been cleared by the FDA, “meaning that 

[the tests] provide accurate results . . . and are able to distinguish a positive from a negative. Further, the test must 
and its acceptance in the field of forensic toxicology when used to determine cocaine use.

The Medina court also held that in addition to “satisfying itself on general theoretical

soundness, before admitting relatively novel scientific evidence the undersigned should

determine that (1) the sample was properly obtained-here, for example, by obtaining hair

from appropriate portions of the body, (2) the particular laboratory technique used was

sound and (3) the laboratory was careful and accurate in its use of that technique.” (Id. at

61-62).

In this case, there is ample evidence that Respondent’s sample was properly 

obtained, that the laboratory technique was sound and that the laboratory was careful and 

accurate in its use of the technique. 

Following laboratory testing, the positive test results in this case were then transmitted

to anMRO, Dr. Darren Duet, who reported the test results as being positive for 

marijuana.5 (CG Ex. 12). 

Here, the undersigned has weighed the uncontroverted testimony ofthe specimen 

collector regarding collection techniques and the scientific testimony of the laboratory 

expert witness and finds both credible. The undersigned therefore finds the use of 

scientific hair testing to determine the presence of a dangerous drug, in this case, to be 

relevant and reliable and within the “spirit of Daubert.” 

D. Respondent’s Hair Tested Positive for Marijuana - a Dangerous Drug

The testimony in this case establishes that Respondent’s hair sample was 

properly harvested, preserved, and shipped to a laboratory for testing. The chain of 

custody of Respondent’s sample was unbroken. The evidence establishes that the sample 

 

be deemed by the FDA to be quantitatively reliable.” (Tr. at 81).
arrived at the laboratory intact and laboratory personnel processed it using correct 

scientific. Dr. Paulsen certified that he reviewed the results and found proper procedures 

were used by his laboratory. Moreover, the “positive” results from laboratory testing 

were reported to an MRO who confirmed the test result as “positive” for marijuana.

The Complaint alleges Use [or addiction to the use] of a Dangerous Drug. Title 46

U.S.C. §7704(c) states “[i]f it is shown that a holder has been a user of, or addicted to, a 

dangerous drug, the license, certificate of registry, or merchant mariner's document shall be 

revoked unless the holder provides satisfactory proof that the holder is cured.” 

A dangerous drug is defined in 46 U.S.C. §2101(8a) as “a narcotic drug, a controlled 

substance, or a controlled substance analog (as defined in section 102of the Comprehensive

Drug Abuse and Control Act of 1970 (21 U.S.C. §802)).” The Controlled Substances Act

(CSA) states that the “term ‘controlled substance’ means a drug or other substance, or

immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.”

Title 21 U.S.C. §812 lists marijuana as a Schedule I drug. Marijuana is therefore a

“dangerous drug” for purposes of 46 U.S.C.§7704(c).

The undersigned finds ample evidence in the record which establishes that 

Respondent was tested for dangerous drugs and provided a hair sample that tested 

positive for marijuana, a dangerous drug. The Coast Guard provided reliable, credible, 

and probative evidence of Respondent’s drug use. Therefore, the evidence in the record 

establishes it is more likely than not that Respondent is a user of, or addicted to the use

of, dangerous drugs. Because the test here at issue was not a DOT-approved test, no 

presumption of drug use or addiction obtains. However, Respondent elected not to 

 

5 Because this was a non-part 16 test, the participation of a Medical Review Officer was not required in this case, as 

it would have been, were this a Part 16 DOT test. See 49 C.F.R. Subpart G.
testify under oath. Hence, he did not testify as to any facts which may have contradicted 

the Coast Guard’s proof. Thus, the Administrative Law Judge may, and hereby does, find 

the Charge proved. See Appeal Decisions 2174 (TINGLEY)(1980); 2266 

(BRENNER)(1981).

V. ULTIMATE FINDINGS OF FACT & CONCLUSIONS OF LAW

1. 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 as codified at 5 U.S.C. §§551-59. 

2. The hair tests conducted in this case were not required by any federal statute or 

regulation. 

3. The hair sample was collected using a process that had sufficient safeguards to 

prevent contamination and preserved the chain of custody.

4. The hair tests conducted here were scientifically valid, relevant and reliable.

5. Respondent is a user of, or addicted to the use of dangerous drugs. 46 U.S.C. 

§7704(c); 46 C.F.R. §5.35.

6. Respondent did not prove “cure” per the holding of Appeal Decision 2535 

(SWEENEY) (1992).

VI. SANCTION 

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

46 C.F.R. §§5.567; 5.569(a); Appeal Decision 2362 (ARNOLD) (1984). The nature of this nonpenal administrative proceeding is to “promote, foster, and maintain the safety of life and 

property at sea.” 46 U.S.C. §7701; 46 C.F.R. §5.5; Appeal Decision 1106 (LABELLE) (1959). 

The Coast Guard’s Complaint seeks revocation of Respondent’s credential. Title 46 

U.S.C. §7704(c) mandates that a Coast Guard issued credential shall be revoked if it is proven 

“that the holder of the credential has been a user of, or addicted to, the use of dangerous drugs, 

unless the holder provides satisfactory proof that the holder is cured.” Id. (emphasis added). 
The statute does not define what “cure” means. However, the concept of “cure” is typically 

discussed in that line of cases flowing from Appeal Decision 2535 (SWEENEY) (1992).6 

The cure set forth in SWEENY is a rigorous course of conduct whereby a respondent 

must not only participate in an active rehabilitation program, he must also submit to random 

urinalysis testing for a full calendar year. 

As indicated above, Respondent, who appeared pro se, elected not to testify under oath. 

(Tr. at 137). Despite the fact that Respondent did not testify under oath, the undersigned, in an 

abundance of caution for the Respondent’s due process rights, accepted (without evidentiary 

foundation) several documents from Respondent. Some of those documents ostensibly relate to 

“cure.” (Tr. at 136, et. seq.) Respondent’s Exhibit A is an October 20, 2015, letter from Gulf 

South Resources, authored and signed by a John Mehlhorn, who identifies himself as a 

“substance abuse professional.” The letter is addressed to a business entity called “Mariner’s 

World Central” and describes Respondent’s apparent evaluation for substance abuse and his 

participation in a drug rehabilitation program. The letter also describes Respondent’s 

participation in 12 Alcoholics Anonymous/Narcotics Anonymous meetings. The letter further 

recommends a series of 18 follow-up drug tests over the two years from the date of the letter. 

There is no evidence Respondent complied with those tests.

 

6

SWEENEY defines “cure” as:

1. The respondent must have successfully completed a bona fide drug abuse rehabilitation 

program designed to eliminate physical and psychological dependence. This is interpreted to 

mean a program certified by a governmental agency, such as a state drug/alcohol abuse 

administration, or in the alternative, certified by an accepted independent professional 

association, such as the Joint Commission on Accreditation of Health Care Organizations 

(JCAHO). 

2. The respondent must have successfully demonstrated a complete non-association with drugs 

for a minimum period of one year following successful completion of the rehabilitation 

program. This includes participation in an active drug abuse monitoring program which 

incorporates random, unannounced testing during that year.
Even reading the Mehlhorn letter, together with results of Respondent’s alleged drug 

testing in July, 2013 and in January, 2016 (Resp. Ex. C, D), in a light most favorable to the 

Respondent, the undersigned cannot assign any probative weight to same, because no evidentiary 

foundation establishing relevance for any of those documents was established by sworn 

testimony. Moreover, the letters do not establish that Respondent’s “rehabilitation” program was 

a “bona fide drug abuse rehabilitation program designed to eliminate physical and psychological 

dependence” as that phrase is defined by SWEENEY. Nor is there evidence of Respondent’s 

submission to (or results from) random drug testing for the required period, nor abstinence from 

drug use following his participation in the “rehabilitation” program. Nor did Respondent 

successfully demonstrate a complete non-association with drugs for a minimum period of one 

year following successful completion of the rehabilitation program; again, as per SWEENEY. 

Thus, Respondent did not prove “cure” as that term is defined and recognized by Coast 

Guard case law. Thus, REVOCATION of Respondent’s credential is mandatory in this case. 

VII. CONCLUSION

The Coast Guard established that Respondent is a user of, or addicted to the use of, 

dangerous drugs by a preponderance of the evidence. Respondent did not prove “cure.” Hence, 

the allegations set forth in the Complaint are found PROVED. 

VIII. ORDER

IT IS HEREBY ORDERED, that Respondent’s Coast Guard-issued credential is

REVOKED. Respondent is to turn in his Credential to the nearest Coast Guard facility 

immediately. 46 C.F.R. §5.567(d).
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. 

(Attachment B).

IT IS SO ORDERED.

__________________________________________________

Bruce Tucker Smith

US Coast Guard 

Administrative Law Judge

Date: 

May 11, 2016
ATTACHMENT A: WITNESS & EXHIBIT LISTS

Coast Guard Exhibits

1. GMS Management System

2. Drug & Alcohol Testing Policy and Consent Form

3. Employer Notification to USCG 

4. Certificate of Training—Keith Breaux

5. Psychemedics Forensic Drug Testing Custody and Control Form—Collector 

Copy 

6. CV - Dr. Ryan B. Paulsen 

7. Certificate of Accreditation—Psychemedics Lab

8. Laboratory Data Package

9. Medical Review Officer Certification—Darren J. Duet, M.D.

10. MRO copy of CCF

11. Dr. Duet Medical license 

Respondent Exhibits

A. Gulf South Resources letter October 20, 2015

B. Unattributed e-mail November 29, 2015

C. SECON form Jul 1, 2013

D. Central Boat Rental letter January 19, 2016

E. Central Boat Rental letter January 19, 2016

F. Central Boat Rental letter January 19, 2016

G. Numerous unassociated documents: including a September 9, 2014 letter from USCG 

NMC, various internet documents, CFRs, bank statements. 

ALJ Exhibits

None

Coast Guard’s Witnesses

1. Billy J. Pellegrin 

2. Keith Breaux

3. Dr. Ryan B. Paulsen

4. Dr. Darren J. Duet

Respondent’s Witnesses

None
ATTACHMENT B: SUBPART J, APPEALS

33 C.F.R. §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 C.F.R. §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 C.F.R. §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 C.F.R. §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.