UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARI)

UNITED STATES OF AMERICA

UNITED STATES COAST GUARD

DECISION OF THE

VICE COMMANDANT

ON APPEAL

No. 27 35

MERCHANT MARINER CREDENTIAL

Issued to: DOI IGT,A SCOTT ROBB

APPEARANCES

For the Government:

Jennifer A. Mehaffey, Esq

For Respondent:

James TW. Alcantara, Esq.

Administrative Law Judge:

Michael J. Devine

This appeal is taken in accordance with 46 U.S.C. Chapter 77,46 CFR Part 5, and

33 CFR Part20.

On January 14,2021, an Administrative Law Judge (ALJ) of the United States Coast

Guard issued a Decision and Order (D&O), finding proved the Coast Guard's Complaint against

the Merchant Mariner Credential of Respondent Douglas Scott Robb, and ordering the

revocation of Respondent' s credential.

The Coast Guard Complaint charged Respondent with use of a dangerous drug, based

upon a positive result in a government-mandated random drug test.

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ROBB NO 27 35

Respondent appeals.

FACTS

At all times relevant to these proceedings, Respondent was the holder of a Merchant

Mariner Credential issued to him by the United States Coast Guard. [D&O at 4,24.]

On August 31,2018, Respondent was a crewmember of the SLNC PAX, which had been

selected for random drug testing. [D&O at 4.] On August 3I,2018, Respondent provided a

urine sample to a certified specimen collector. lld.l He signed the Federal Drug Testing

Custody and Control Form (CCF), and initialed the seals that are intended to be placed on the

specimen bottles while the seals were still attached to the CCF. [Id. at 5.] The collector poured

Respondent's sample into two specimen bottles and sealed the bottles in Respondent's presence.

lrd.l

Respondent's specimen was tested by a laboratory accredited to perform drug testing

comporting with Department of Transportation (DOT) standards. The laboratory determined that

Respondent's sample was positive for amphetamines at a level of 552nglmL and for

methamphetamines at a level of 9057 nglmL, exceeding the cut-off levels for positive tests found

in DOT regulations. [D&O at 6, 25.f

On September 21,2018, a Medical Review Officer (MRO) inten¿iewed Respondent and

asked him if he had been prescribed any medication that might have caused a positive result for

methamphetamine. [D&O at 6.] Respondent answered in the negative, but stated that he had

used an over-the-counter Vicks inhaler before being tested. [1d.]

On September 21,2018, the MRO certified that Respondent's urine had tested positive

for amphetamines and methamphetamines. [D&O at 6.]

PROCEDURAL IIISTORY

The Coast Guard filed a complaint against Respondent's Merchant Mariner Credential on

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October 22,2019. The complaint alleged use of a dangerous drug, based on the positive result of

the August 31,2018 random drug test. Respondent filed an Answer on November 6,2019,

admitting all jurisdictional allegations and denying most factual allegations.

Hearing was held on July 23,2020, and September 22,2020, by telephone and

videoconferencing technology (Zoom for Govemment). The ALJ issued his D&O on January

14,2021. He found the charge of use of a dangerous drug proved, and imposed the mandatory

sanction of revocation. [D&O at25.]

2021

me.

Respondent appealed, and perfected his appeal by filing an appellate brief on March 15,

The Coast Guard filed a reply brief on April 19,2021, and this appeal is properly before

BASES OF APPEAL

Respondent raises the following issues on appeal:

The AIJ's Ultímate Findíngs of Føct and Conclusions of Law Nos. 5 and I qre

not supported by substantial evidence.

The AIJ abused his díscretion by relying upon inherently incredible testímony.

OPINION

Under the ALJ's Ultimate Findings of Fact and Conclusions of Law, the following

appear:

5. Respondent's urine specimen tested positive for amphetamines and

methamphetamines. ...

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

evidence that Respondent was a user of dangerous drugs.

Respondent argues in essence that the ALJ's finding that "Respondent's urine specimen

tested positive" (No. 5) was unsupported because given his use of a Vicks inhaler, the tested

specimen should have had different characteristics than the reported test results indicated, and

I.

II.

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ROBB No.27 3 5

therefore the specimen could not have been his specimen; and the collection process was

unreliable so that misidentification of the specimen was possible. Hence, he argues, the finding

that the allegation against him was proven (No. S) was also unsupported. His argument is

unconvincing.

A credentialed mariner who has used, or is addicted to, a dangerous drug, shall have his

credentials revoked unless he'oprovides satisfactory proof that [he] is cured." 46 U.S.C.

$ 7704(b). Failure of a drug test mandated under 46 CFR Part l6 results in a presumption that

the donor used dangerous drugs. 46 CFR $ 16.201(b). The Coast Guard may establish a prima

facie case of drug use by demonstrating that: (1) the respondent was the person who was tested

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

accordance with Coast Guard drug testing regulations at 46 CFR Part 16 and applicable

Department of Transportation (DOT) regulations at 49 CFR Part 40. Appeal Decísion 2560

(CLIFTOT at 8, 1995 WL 17010110 at 7; Appeal Decision 2704 (FRANKS) at9,20I4WL

4062506 at7 (claifying that, to establish aprimafacie case, a government-mandated test must

be both properly ordered, under Part 16, and properly conducted, under Part 40).

If the Coast Guard presents substantial, reliable, and probative evidence of the three

elernents, a presumption of drug use has been established, and the burden shifts to the respondent

to provide evidence rebutting the presumption. Appeal Decísion 2603 (HACKSTAFF) at4,

1998 WL 34073115 (citing Appeal Decision 2592 (MASON) at 5,1997 WL 33480820 at 4). *If

the respondent produces no evidence in rebuttal, the ALJ may find the charge proved on the

basis of the presumption alone." Id. (citingAppeal Decision 2555 (LAVALL" IS) at3,1994WL

16009226 at2).

In this case, the ALJ concluded that the Coast Guard established a prima føcíe case,

resulting in a presumption of drug use, and that Respondent failed to rebut it. Respondent asserts

that the ALJ erred in concluding that the first element of the prima focie case was met, in that the

evidence was insufficient to show that the tested specimen had been provided by him.

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ROBB NO 27 3 5

L-type and D-type methamphetamine.

Respondent testified that, as he had told the MRO, he used a Vicks inhaler while

travelingtotheSLNCPAXthedaybeforetherandomdrugtesting. [Tr.Day2 at 115, 144,I49-

150.] The MRO testified that a Vicks inhaler can cause the presence of ool type"

methamphetamine in a person's urine sample, but does not cause the presence of "D type"

methamphetamine. [D&O at 17.] He testified that certain prescription medications can cause

the presence of "D t¡pe" methamphetamine. fId.l He further testified that Respondent's

specimen showed the presence of 95%o "D t¡rpe" and 5Yo "L t¡pe." [Id.] The witness from the

testing laboratory testified to the same effect. [Tr. Day 2 at 67.] The latter also testified that the

D-methamphetamine result (95%) indicated that the specimen contained a Schedule Two

controlled substance that would require a valid prescription. [Tr. Day 2 at 67,73-74.]1

The MRO testified that use of an inhaler containing L-methamphetamine would be

expected to cause test results of more than 5Yo L-methamphetamine. [Tr. Day 2 at ll8.]

Respondent contends that the absence of high levels of L-methamphetamine "brings into

question whether the tested sample belonged to" Respondent. However, there is no evidence on

how the use of both an inhaler and a source of D-methamphetamine would be manifested in test

results. The MRO testified that he did not assume Respondent had not used an inhaler, but

focused on the D-methamphetamine test result, for which Respondent did not provide an

explanation; the L-methamphetamine result was "very minor and of no consequence in this

report." [Tr. Day 2 at ll9, 129.] There is nothing to indicate that the MRO's assessment that the

L-meth result was of no consequence was fault¡ and there is no reason, beyond speculation, to

believe the results signift that the tested sample did not belong to Respondent.

To put it another way, there is no reason to reject the ALJ's observation: "Neither the

MRO nor the undersigned ALJ are obligated to believe Respondent's contention that he was

using the inhaler or that his alleged use of an inhaler would have contradicted the results

determined by [the testing laboratory]." [D&O at24.] This is so whether or not Respondent was

I He further stated that a manufacturing process is unlikely to produce 100% D-methamphetamine. [Tr.2 at74.]

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ROBB No. 27 35

aware of the chernical details of methamphetamine and tests therefor.2

Reliability of collectíon process

Respondent testified that the collector diverged from the requirements in several respects

while collecting his sample, and another crewmember from the ship similarly testified as to the

collection of that crewmember's sample. He argues that the collector's testimony tending to

show that the collection process was properly conducted was inherently incredible and the

process was unreliable.

Respondent testified that the collector had him initial the seals while they were still

attached to the CCF, and allowed him to leave the collection site before he saw his specimen

poured into the tubes and sealed. [Tr. Day 2 at 140.]

49 C.F.R. $ 40.71(bX5)-(7) requires the collector to seal the specimen bottles and then

have the ernployee initial the seals.

The collector testified that he did not recall what he did on that occasion in 2018 (twentythree months before his testimony). [Tr. Day I at23.] However, he testified to'ohis typical

procedures, which are consistent with the requirements of 49 C.F.R. Part 40." [D&O at22.] He

fui.ther testified that he performed every step for all collections. [Tr. Day I at 33.] The ALJ

found this testimony credible. [D&O at22.l The collector admitted under cross-examination

that he apparently diverged from the required procedures in this instance, in that he had donors

sign seals while still attached to the CCF. [Tr. Day 1 at37-38.] This, as the ALJ found, was "an

administrative error that does not call into question the integrity of the specimen . . . ." [D&O at

23.] The collector specifically testified that the bottles were sealed in Respondent's presence.

[Tr. Day I at 38.] The ALJ accordingly found that the bottles were sealed in Respondent's

presence, as "corroborated by Respondent's signature on the fom." [D&O at23.]3 In a very

2 It appears that the ALJ was not making an explicit finding on Respondent's credibility at this point. He was

noting, however, that additional evidence would have been needed before the use of an inhaler would make a

difference.

3 I need not decide whether the result would be difÏerent if the bottles had not been sealed in Respondent's presence.

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ROBB NO. 27 35

similar case, the testimony of collection personnel "and most importantly, Appellant's own

written certification," provided substantial evidence supporting the finding. Appeal Decision

2527 (GEORGE) at 4,1991WL I 1007459 at3.

As Respondent notes, the ALJ believed the collector's testimony, even though the

collector "was forced to admit" that he had donors initial the seals while still attached to the CCF

rather than after they were placed on the bottles. Respondent claims the collector lied and

therefore all his testimony is inherently incredible. Yet there is no reason to believe that the

collector offered an intentional falsehood. If he conveyed particulars that were inaccurate, this is

far from establishing that all the content of his testimony was inherently incredible.

Respondent presented the testimony of another crewmember, who testified that the

collector failed to follow the proper procedures in several respects. [D&O at20.) The ALJ

found the testimony only partly relevant and not persuasive. [D&O at 21.] He stated that while

the other crewmernber "may have had some concerns regarding the collection, none of thern

appear to provide a basis to find that the specimen integrity was somehow compromised."

lD&o at22.l

Concerning the respondent, the ALJ pointed out, "Respondent testified he had

participated in over 60 drug tests. . . . Despite his familiarity with the process, Respondent did

not make a complaint to the collector and insist on proper procedures when the collector

allegedly committed significant enors. . . . I find the evidence shows that Respondent did not

make a contønporaneous complaint regarding the process . . . ." [D&O at22.] He went on to

find Respondent's contentions about various diversions from the prescribed process not credible.

[rd.]

The ALJ is given broad discretion to weigh evidence and decide factual matters. His

findings of fact are entitled to great deference and will only be overturned if they are shown to be

arbitrary and capricious or clearly erroneous. Appeal Decision 2695 (AILSI(ORTH) at 5,

201I wL 6960129.

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I conclude the ALJ did not abuse his discretion in relying on the collector's testimony

His findings of fact have not been shown to be arbitrary and capricious or clearly erroneous.

Respondent quotes the ALJ's staternent, above, that the other crewmember "may have

had some concsrns regarding the collection" and argues, "The ALJ expressly concedes fthe other

crewmember] had legitimate concerns about the collection process . . . . This is where the ALJ's

analysis should have ended. Whether the ALJ believes the integrity of fthe crewmember's] urine

sample might have been compromised is irrelevant." [Respondent's appeal brief at 6.] The

precedents hold to the contrary. "'Where technical infractions of the procedures in 46 CFR Part

16 and 49 CFR Part 40 occur, the testing procedure is not vitiated where the infractions do not

breach the chain of custody or violate the specimen's integrity." Appeal Decision 2728

(DILLON) at 5,2020WL3270610 at 3 (quoting Appeal Decísíon 2614 (WALLENSTEIN),

2000 WL 33965627). Accord, Appeal Decision 2734 (NELSON) at9,2021WL2003578 at7

(citing Administrator v. Flores, NTSB Order No. EA-5279,2007 WL 1233533; Appeal Decision

2688 (HENSLEY),2010 WL 4607368).

In short, the fact that a crewmember had concerns about the collection process does not

establish that the collection process was unreliable; the ALJ's findings were not arbitrary and

capricious or clearly erroneous.

CONCLUSION

The ALJ's findings and decision were lawful, based on correct interpretation of the law,

and supported by the evidence. The order imposed by the ALJ, revoking Respondent's Merchant

Mariner Credential, was appropriate.

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ROBB NO. 27 35

ORDER

The ALJ's Order dated January 14,2021is AFFIRMED.

.L ,Á

*l\

Signed at V/ashington, D.C., thts 17 day of A.,r.rsJ- .zozt.

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