UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_________________________________ 

UNITED STATES COAST GUARD 

Complainant

vs. 

HAROLD LANGLEY 

Respondent

_________________________________ Docket Number 2009-0397 

Enforcement Activity No. 3590096

ORDER DENYING MOTION TO AMEND DECISION AND ORDER,

AND GRANTING REQUEST FOR EXCERPT OF TRANSCRIPT

Issued: March 26, 2010

By Administrative Law Judge: Honorable Michael J Devine

Appearances: 

 James T. Staton 

Sector Hampton Roads 

For the Coast Guard 

PHILIP N. DAVEY, Esq. 

For the Respondent 

On March 8, 2010, the Respondent, through counsel submitted a Motion seeking to amend 

the written Decision and Order dated March 2, 2010 issued in this case citing to 33 CFR 

20.103(c) and Federal Rules of Civil Procedure 59(e). The regulations contained in 33 CFR Part 

20 provide the specific procedures for Coast Guard administrative hearings and the Federal Rules 

of Civil Procedure (FRCP) are not applicable unless there is no specific provision provided in 33 

CFR Part 20. There is no reason to refer to the FRCP in this matter since there are specific 

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regulations that apply to this issue. The procedure for a post hearing motion of this nature is 

contained in 33 CFR 20.904 and Respondent’s Motion has been considered as a motion to reopen 

the record under that regulation. Any party may move to reopen the record of a proceeding 30 

days or less after the closing of the record and the ALJ may reopen the record if he or she believes 

that any change in fact or law, or the public interest warrants reopening it. 33 CFR 20.904. The 

Coast Guard has not submitted any response to the motion and has waived the opportunity to 

submit an objection. 33 CFR 20.904(b)(2). 

After a hearing conducted on February 25 and 26, 2010 the undersigned Administrative 

Law Judge issued a decision orally from the bench in keeping with 33 CFR 20.902(c). The 

regulations further provide that: 

If the ALJ renders the initial decision orally, and if a party asks for a copy, the Hearing 

Docket Clerk shall furnish a copy excerpted from the transcript of the record. The date of 

the decision is the date of the oral rendering of the decision by the ALJ. 

33 CFR 20.902(d) 

The oral decision stated on the record on February 26, 2010 is part of the official record 

and constitutes the initial decision of record in this matter and is only supplemented by the written 

decision issued on March 2, 2010. Since the official record already contains the statement that 

Respondent seeks to have included by amending the written order there is no basis to justify 

reopening of the record under 33 CFR 20.904. As provided in 33 CFR 20.902(d) a party may 

request an excerpt of the transcript regarding the decision. Respondent has made such a request. 

The excerpt of the transcript stating the initial decision is attached to this order as Enclosure (1). 

WHEREFORE, 

IT IS HEREBY ORDERED, Respondent’s Motion to Amend the Decision and Order in 

this matter is DENIED.

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IT IS HEREBY FURTHER ORDERED, that Enclosure (1), an excerpt of the transcript 

is provided for Respondent. 

PLEASE TAKE FURTHER NOTICE, that the time period for exercising appeal rights 

relating to the initial decision issued in this matter is governed by the regulations in 33 CFR Part 

20 including 33 CFR 20.904(d) and 33 CFR 20.1001-1003. 

__________________________________________________ 

Michael J Devine 

US Coast Guard Administrative Law Judge

Date: March 26, 2010

ENCLOSURE (1): Excerpt from Transcript 

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UN: 'ED STATES DEPARTMENT OF HCMELAND S£CURITY

Bet rf-' ""he Han'rable MICHAEL J. Dl::VINE, bdlJ~

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UNITED STATe~ or AMeRTCA

UtHTED STATES COAST GUliRD

'-IN[T)·;S S'''ATES COAST GUARD,

Complainant.,

Hl\ROLD LANGLf;'{,

Respondent.

TRANSCRIPT OF PROCEEDINGS

VOLUl~E I I

Norfolk, Virg~nia

febru<lry 7.6, 2010

'rAYLO,; ASSOCI/,rES, .NC.

Docket No.

2009-0397

Coast Guard

FTlorcemcnt No.

3590096

285

1 Reponer.;;

NorfoLK, Vltginia
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1 me a little bit longer than that to be able to give a

2 decision, but hopefully sometime between 10,)0 and 11:00 I

3 will be prepared to do it.

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10,30.

It will take me to at least

If I can do it then. I will .

We'll follow then the procedure and, as I said,

6 in keeping with 33 erR 20.710 I'll basically issue an oral

7 order, and I have to state some findings of fact and

8 conclusions of law based on the matters presented in

9 hearing from both sides.

10 Any questions by either party?

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MR. STATON:

MR. DAVEY:

THE COURT:

No, sir.

No, Your Honor.

Then the hearing is recessed

14 While I review the matter, and the parties should be

15 prepared to be back here at 10:30.

16 Thank you.

17 (A recess was taken.)

18 THE COURT: AS noted before we recessed, I'm

19 going to issue a bench decision in this matter in

20 keeping with the regulations and thank both counsel for

21 presenting the case in an effective manner.

22 I will issue a written order sometime early

23 next week that may expand on this a little bit, because

24 this is an abbreviated process and -- but provided by the

25 regulations to issue a prompt decision.

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My findings are as follows, based on a complete

2 consideration of all the evidence presented in this

) matter, including all the exhibits and te:ltimony

presented, subject to the evidentiary rulings that I have

5 made in t.h15 matter.

6 One: Respondent Harold Langley is the holder

7 of merchant mariner document 057127 and was a member of

8 the crew of the USNS REGULUS on June 29th, 2009.

9 The subject matter of this proceeding is within

10 the jurisdiction of the Coast Guard under the authority of

11 46 United States Code Chapter 77 and 46 erR 5.57.

12 Two: On June 29th, 2009 there was a urinalysis

13 conducted in keeping with company policy for both the

14 REGULUS and the POLLUX, both vessels.

15 No.3: Respondent Harold Langley submitted a

16 urinalysis specimen on June 29th, 2009 with specimen 10

17 No. 6122863 in connection with his company-ordered random

18 test.

19 rOU~: The specimen No. 6122863 was documented

20 and collected and fo~wa~ded to the lab, Quest Oiagnostics

21 in this matter, in keeping with the requirementS of the

22 OOT .::-egulations.

23 Five: Evidence presented by the Coast Guard

24 regarding testing conducted on January -- June 29th, 2009

25 included testimony by the collector on how individuals are

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1 identified and the dating and initialing of the seal of

2 the specimen provided by the donor and how the chain of

3 custody form was completed.

4 Six: Specimen 6122863 was tested at the lab

5 and determined to have no detectable creatinine and a

6 specific gravity of 1.0000, consistent with water.

7 Seven: The MRO reviewed the documentation and

8 contacted the respondent to question him about the test

9 results for specimen 6122863 and determined that there was

10 no valid medical reason for the results of not

11 consistent -- quotation marks, not consistent with human

12 urine. close quotation. the matters regarding refusal to

13 test, and checked substituted on the form.

14 Eight: There was evidence presented regarding

15 a clerical error by the MRO office in notifying witness

16 McKenna of the results for the specimen 612283 -- I'm not

17 sure I got the number exactly right, but the same

18 specimen.

19 It should be 863.

20 I find that this evidence does not present

21 sufficient evidence to affect the demonstrated chain of

22 custody and testing of the specimen.

23 No.9: Evidence that the specimen provided by

24 the respondent on June 29th, 2009 was a substituted

25 specimen is lIqqravating evidence.

TAYLOE ASSOCIATES. INC.
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1 No. 10;

316

I have decided that the portion of the

2 Exhibit 2 relating to a prior matter from 1990 is not

3 relevant and is not considered for any purpose in this

4 decision. The time involved makes any such consideration

5 too attenuated and inappropriate to consider for this

6 matter.

7 NO. 11: The Coast Guard has proven by a

8 preponderance of the reliable and credible evidence that

9 the respondent provided a substituted specimen for the

10 company-ordered urinalysis conducted on June 29th, 2009.

11 This constitutes a refusal to test, and under

12 the regulations and applicable case law the charge of

13 misconduct is proven.

14 No. 12; Official notice is taken of appeals

15 decision 2578, Callahan, 1996, and Commandant v. Moore,

16 NTSB order No. EM-201 (2005).

17 Mr. Davey, if you desire I'm sure Mr. Staton

18 can provide you with copies or references for that.

19 These decisions are searchable in Westlaw. The

20 Commandant decision is on appeal, and the NTSB decisions

21 are binding authority for me to follow in these

22 proceedings.

23 With regards to the matter of the sanction, I

24 have carefully reviewed the record and considered all the

25 evidence presented in this matter, beginning with the

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1 complaint and answer and note that the Coast Guard has

2 proposed a sanction and revocation.

3 And as counsel for respondent pointed out, that

4 would exceed the suggested range of sanctions contained in

5 table 5.569 of 46 CrR.

6 The single violation of misconduct for refusing

1 drug test indicates a range of sanctions from 12 to 24

a months to outright suspension.

9 There was evidence that the respondent provided

10 a substituted specimen as a matter considered in

11 aggravation regarding the test conducted on June 29th,

12 2009, and there is also evidence both in testimony and in

13 exhibits -- particularly Exhibits C, D, E. and F presented

14 by respondent -- of mitigation.

15 The table of orders is only intended to provide

16 information and guidance, and the Administrative Law Judge

17 is not bound by the range of appropriate orders in 46 CrR,

18 part 5.

19 And that's one of the reasons with the

20 reference to the appeals decision, Callahan. That also is

21 authority in that regard.

22 Evidence of mitigating or aggravated

23 circumstances may justify departing from the suggested

24 range in 46 eFR 5.69B table.

25 The Coast Guard had sought a sanction or

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revocation, and re~pondent has argued for variou~ lesser

2 matters to be considered.

3 Here I find that the substitutio~ of the

4 specimen, his action, att.!lcks the integrity of the testing

5 process. I find that there 1s sufficient evidence to

6 justify a sanction of revoco!Ition, and tho!lt is the s.!lnction

1 adjudged in this matter.

8 Part of the requirements of the regulations in

9 part 5 are for the promotion of safety at sea, and the

10 matter of the integrity of these types of te~ts en~ure

11 that i~ a matter of great importance.

12 I find al~o, though, that the respondent has

13 presented significant evidence in mitigation and is

14 obviously highly valued by his shipmates.

15 The process for obtaining new license in 46 eFR

16 5.901 should be pursued and should be considered by the

11 Coast Guard.

18 That matter Is -- allow~ for within three years

19 or less, particularly presenting evidence as required by

20 the regulations, there are opportunities to reacquire a

21 license.

22 I will issue a follow-up written order

23 memorializing this decision.

24 Are there any matters in addition to be raised

25 by the parties?

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1 The Coast Guard will retain the mariner's

2 credentials in keeping with the regulations.

3 Also. when I issue the written order it will

4 contain appeals rights, and if either party wants to

5 submit anything further in keeping with the regulations,

6 whether for reopening or reconsideration. that's also

7 contained in the part 20 requlo/ltions.

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Does that raise anything for you, Mr. Staton'?

MR. STATON: Not at all, Your Honor.

10 Upon request the Coast Guard would be happy to

11 provide guidance as tat as administrative clemency

12 guidelines that may be pursued at a later date.

13 THE COURT: Thank you.

14 Me. Davey?

15 MR. DAVEY: Nothing further. Your Honor.

16 THE COURT: All right.

17 Again, I chank you all. and this hearing is

18 closed.

19 (The proceedings were concluded at

20 11:05 a.m. I

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r.OUR' RF.PORTF:R" CFRTI eT(,)\Tf.

1, Suz<:Inne M. Myers. RMR, Cour~ Reporter,

further certify that to the best of my

Gi·..en under my hand this 20th day of Mardl,

k, Virginia

Notary N< 240~ 97

kno\<dedge and belief, the foregoing transcript constitutes

proceedlng" 11"1 the capt ioned ca'le bet"re the Hcnor,1b;e

Cf"rt i fy th,H T recorded verbati!" by stenotype the

a true and correct.. tr",nscript of the said proceedings.

on February 26. 2010.

2010, at llarfolk, Virginia.

MICHAES J. D<;VrN~, Judge of silid Court, NO:"l

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