UNITED STA TES OF AMERlCA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED ST A TES OF AMERICA 

UNITED ST ATES COAST GUARD 

vs. 

MERCHANT MARINER LICENSE 

and 

MERCHANT MARlNER'S DOCUMENT 

Issued to: RANDAL D. MERRILL 

DECISION OF THE 

VlCE COMMANDANT 

ON APPEAL 

N0.2 6 6 8 

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 on Remand (hereinafter "D&O on Remand") dated 

January 13, 2003, an Administrative Law Judge (hereinafter "ALJ") of the United States 

Coast Guard at New Orleans, Louisiana, revoked Mr. Merrill's (hereinafter 

"Respondent's") license and document upon finding proved a charge of use of or 

addiction to the use of dangerous drugs. The specification found proved alleged that 

Respondent tested positive for cocaine metabolite as part of a drug screening conducted 

on November 11, 1999. 

PROCEDURAL HISTORY 

By a Decision and Order (hereinafter "D&O") dated November l , 2000, an ALJ 

of the United States Coast Guard at New Orleans, Louisiana, dismissed the Coast 

Guard's complaint against Respondent after finding not proved a charge of use of or 

addiction to the use of dangerous drugs. In his decision, the ALJ concluded that because 
2668 

the injury which resulted in the drug testing of Respondent could not properly be 

categorized as either a "marine casualty" or a "serious marine incident," Respondent's 

drug testing was "not in accord with U.S. Coast Guard regulations for chemical testing of 

mariners as set forth in 46 Code of Federal Regulations, Part 16." [D&O at 4) As a 

result, the ALJ determined that Respondent's employer lacked the authority to require 

Respondent to submit to a drug test. [D&O at 7] In addition, the ALJ found that both 

Respondent's employer and the Medical Review Officer (MRO) failed to comply with 

the applicable Department of Transportation (hereinafter "DOT") regulations governing 

reporting and review of drug test results. As a result, the ALJ found the complaint not 

proved and dismissed the case. [D&O at 12] 

The Coast Guard appealed the ALJ's D&O. On appeal, via a decision dated 

September 3, 2002, the AU's order was vacated and remanded, expressly stating that the 

ALI should determine whether Respondent voluntarily submitted to the drug test at issue 

in the instant proceedings and, if found in the affirmative, whether that determination 

would be sufficient to alter the outcome of the case. Appeal Decision 2633 (MERRILL). 

That decision was based upon a conclusion that, irrespective of the requirements set forth 

in 46 C.F.R. Part 16, the Coast Guard could properly rely on the results of a voluntary 

drug test as the basis for suspension .and revocation proceedings. 

On remand, the ALJ reopened the hearing. The reopened hearing was held at 

New Orleans, Louisiana, on December 11, 2002. Respondent was present at the hearing 

and was represented by professional counsel. During the hearing, no new testimony or 

exhibits were entered into the record and the ALJ limited discussion to the sole issue of 

whether Respondent had voluntarily submitted his urine for drug testing. 

2 
After the hearing, the ALJ issued his D&O on Remand on January 13, 2003. In 

the decision, the ALJ held that "[t]he record clearly shows that Mr. Merrill had no 

objection to talcing the drug test and his submission of a urine specimen was entirely 

voluntary on his part" and ordered the revocation of Respondent's license and merchant 

mariner document. [D&O on Remand at 2] 

On February 11 , 2003, Respondent filed, through his counsel, a Notice of Appeal 

in the matter, via facsimile, with the ALJ Docketing Center. Thereafter, on March 11, 

2003, Respondent requested an extension of time within which to file his Appellate Brief. 

On March 13, 2003, the Coast Guard's Crnef ALJ granted the extension and ordered that 

Respondent's Appellate Brief be filed by March 27, 2003. Respondent perfected his 

appeal by properly filing his Appellate Brief on March 27, 2003. The Coast Guard filed a 

Reply Brief on April 21, 2003. Therefore, this appeal is properly before me. 

APPEARANCE: Troy G. Ingram, Attorney for Respondent, 2065 First Street, 

Suite I 02, Slidell, Louisiana. The Investigating Officers were LT Sharif Abdrabbo, LT 

Chris Dougherty, and CWO David Cornett, Marine Safety Office New Orleans, 

Louisiana. 

FACTS 

For the sake of clarity, I will reiterate the findings of fact that were set forth in 

Appeal Decision 2633 (MERRILL). Those findings of fact are as follows: 

At all times relevant herein, Respondent held the license and merchant mariner 

document captioned above, issued to him by the United States Coast Guard. 

Respondent's license authorizes him to serve as Master of steam motor vessels of not 

more than two hundred gross tons upon or near coastal waters. 

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2668 

On November 11, 1999, Respondent was in the process of reporting to duty when 

he parked his car in the Mobro Marine, Inc., parking area in Jacksonville, Florida. [D&O 

at 3] He subsequently cut his left hand as he was "cutting ... (his] ... bags open from the 

flight from Seattle." [Transcript (Tr.) at 180] At the time of his injury, Mr. Merrill had 

not yet reported to work but was scheduled to work that day as an "at-the-bapk" 

employee. (Tr. at 53]. In that capacity, he was not scheduled to work on a vessel in an 

"underway status" but rather, was working in a "non-specific position, essentially a 

caretaker status." (Tr. at 53-54) Upon cutting his hand, Mr. Merrill reported to the 

company's office and informed Mr. Paul Westcott, the company Safety and Compliance 

Coordinator, of his injury. [Tr. at 147, 180; D&O at 3] 

Upon viewing Mr. Merrill's injury, Mr. Westcott offered to "take care of' 

Mr. Merrill's injury. [Tr. at 180) Mr. Merrill was informed that ifMobro paid for his 

medical treatment, he would be required to submit to a urinalysis test. [Tr. at 70-71] 

Mr. Westcott concluded that, based on the circumstances of the incident, a urinalysis test 

was required under Federal regulation because he classified the test as a "post injury 

chemical tests." [Investigating Officer (hereinafter "IO") exhibit 2] 

Mr. Merrill allowed Mobro to pay for his medical treatment and was transported 

to Magnolia Urgent Care Center in Green Cove Springs, Florida, where his wound was 

treated with 7 nylon skin sutures and where he submitted to a urinalysis test. (Tr. at 67; 

IO exhibit 5] Dr. William A. Jacobs, the Medical Review Officer (MRO) employed by 

Magnolia Urgent Care Center verified the report of Mr. Merrill's urinalysis test and the 

chain of custody of his specimen. [Tr. at 112-118; IO exhibit 3] The results of 

Mr. Merrill's urinalysis test indicated that his urine had tested "positive" for the presence 

4 
2668 

of cocaine metabolites. [IO exhibit 3] The MRO notified the Coast Guard of 

Mr. Merrill's positive test result on December 29, 1999, following significant difficulty 

in contacting Mr. Merrill regarding the results. [Tr. at 155-161; IO exhibit 7] 

BASES OF APPEAL 

This appeal has been taken from the order, on remand, imposed by the AU, 

which found that Respondent had voluntarily submitted to a drug test and which revoked 

Respondent's mariner credentials. Respondent's bases of appeal are summarized as 

follows: 

1. The Coast Guard lacked jurisdiction to institute the suspension and 

revocation proceeding against Respondent because Respondent was not 

acting under the authority of his credential at the time of his injury. 

II. Respondent was not assigned to an identifiable vessel or fleet of vessels; 

alternatively,. if Respondent was assigned to the MIV EL PUMA GRANDE, 

said vessel had been withdrawn from navigation and was undergoing 

major repairs and. therefore, Respondent was not required to work under 

his license as a condition of employment. 

Ill. The ALI erred in failing to address the jurisdictional issue in the original 

proceeding and erred again in refusing to consider the jurisdictional issue 

during the proceedings on remand. 

IV. Regardless of whether Respondent voluntarily submitted to the drug 

screen, the AL! erred when he failed to consider whether Respondent 's 

Constitutional rights to due process and privacy rights had been violated 

as a result of the MRO 's failure to comply with Coast Guard regulations. 

OPINION 

I. 

I wil1 begin by concurrently discussing Respondent's first three bases of appeal. 

Respondent contends that the Coast Guard lacked jurisdiction to initiate suspension and 

revocation proceedings against Respondent's mariner credentials because: I) Respondent 

was not acting under the authority of his mariner credentials at the time of his injury, 

2) Respondent was not required to work under the authority of a mariner credential at the ~~~ -~~~-

5 
2668 

time of his injury because he was either not assigned to an identifiable vessel or because 

he was assigned to a vessel that was withdrawn from navigation, and, 3) because the ALJ 

erred by not addressing the jurisdictional issue concerning whether Respondent was 

acting under the authority of his merchant mariner credential. For the reasons set forth 

below, I find Respondent's first three bases of appeal to be without merit. 

In asserting that the Coast Guard lacks jurisdiction to initiate the instant 

proceedings, Respondent contends, based upon the application of 46 C.F.R. § 5.57, that 

respondent was not "acting under the authority'' of his mariner credentials at the time of 

his injury and because he was not required to have mariner credentials to perform the 

tasks assigned to him at that time. Respondent's reliance on 46 C.F.R. § 5.57 is 

misplaced. Irrespective of whether Respondent was "acting under the authority" of his 

mariner credentials at the time of the incident, pursuant to 46 U.S.C. § 7704( c), "[i]f it is 

shown that a holder has been a user of, or addicted to, a dangerous drug, the license, 

certificate or registry, or merchant mariner's document shall be revoked unless the holder 

provides satisfactory proof that the holder is cured." lndeed, as stated in Appeal Decision 

2560 (CLIFTON), Respondent's "status aboard the vessel does not matter as it is his 

status as the holder of a merchant mariner's document [or license or certificate of 

registry] that establishes jurisdiction for purposes of suspension and revocation when use 

of a dangerous drug is charged." [Emphasis added] 

The record shows that, at the time of the incident, Respondent was the holder of 

Coast Guard license number 796883 and a merchant mariner document. [Tr. at 4; D&O 

at 3] Therefore, because the instant case was taken pursuant to 46 U.S.C. § 7704(c) and 

the Coast Guard properly charged Respondent with "use of or addiction to the use of 

6 
2688 

dangerous drugs," Respondent's status as the holder of the above-captioned mariner 

credentials, in and of itself, affords the Coast Guard jurisdiction to institute the instant 

suspension and revocation proceeding. Accordingly, I find Respondent's first three bases 

of appeal to be without merit. 

11. 

Regardless of whether Respondent voluntarily submitted to the drug screen, the AL.I 

erred when he failed to consider whether Respondent 's Constitutional rights to due 

process and privaly rights had been violated as a result of the MRO 's failure to comply 

with Coast Guard regulations. 

Respondent's final argument is, in effect, that his rights to fundamental fairness 

and due process were violated as a result of regulatory infractions that were committed by 

the MRO and his employer during the mandatory review of his positive drug test. 

Respondent asserts that the MRO's failure to discuss Respondent's positive test result 

with him prior to verifying the test result as positive and his employer's failure to ensure 

that Respondent contacted the MRO prior to that verification "was a fatal flaw, 

warranting dismissal of the complaint." [Appellate Brief at 10-16] After a thorough 

review of the record, I do not agree. 

For a charge of use of or addiction to the use of dangerous drugs to be found 

proved, the Coast Guard must establish a prima facie case of use of a dangerous drug by 

the mariner. A prima jacie case of use of a dangerous drug is shown when ( 1) a party is 

tested for use of a dangerous drug, (2) test results show that a party has tested positive for 

the presence of a dangerous drug, and (3) the drug test is conducted in accordance with 

49 CFR Part 40. Appeal Decisions 2584 (SHAKESPEARE), 2589 (MEYER), 2592 

(MASON), 2603 (HACKST AFF), 2598 (CATTON) and 2583 (WRIGHT). If the Coast 

Guard establishes a llJima/acie case, a presumption of use of a dangerous drng arises, 

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2 668" 

and the burden then shifts to the Respondent to produce persuasive evidence to rebut the 

presumption. Appeal Decisions 2584 {SHAKESPEARE}, 2379 {DRUM}, 2589 

(MEYER}, 2592 {MASON} and 2603 (HACKST AFF}. If the Respondent fails to rebut 

the presumption, the ALJ may find the charge proved on the basis of the presumption 

alone. Appeal Decisions 584 (SHAKESPEARE}, 2266 (BRENNER}, 2174 (TINGLEY}, 

2589 {MEYER}, 2592 (MASON} and 2603 {HACKST AFF). 

In the instant case, the record shows both that Respondent was tested for use of a 

dangerous drug, the urine test results were positive for cocrune metabolite, and that the 

technical and physical testing of his specimen was conducted in accordance with the 

procedures set forth in 49 C.F.R. Part 40. What is less clear, and is indeed the focus of 

Respondent's final assertion of error, is whether, in light of the procedural and 

notification regulatory infractions committed by the MRO and Respondent's employer, it 

is proper to conclude that his test result was positive for the presence of a dangerous drug 

or, stated more succinctly, whether the Coast Guard has established a prima facie case for 

use of a dangerous drug. For the reasons stated below, I do not find that the ALJ erred in 

considering Respondent's positive drug test result in concluding that the Coast Guard 

established a prima facie case for use of a dangerous drug. 

A. 

In the instant case, the MRO verified Respondent's positive drug test without first 

discussing the positive test result with Respondent, which is not in accord with the 

standard MRO procedures set forth in 49 C.F.R. Part 40. In his initial decision, the ALJ 

noted as follows: 

8 
2668 

The specimen was furnished on I I November 1999 and the 

Medical Review Officer's notes show that he ... attempted to contact Mr. 

Merrill on 15, 16, 17, 18, 19 and 22November1999. 

On 22 November 1999 the Medical Review Officer was infonncd 

by Mr. Merrill's employer "Date: I 1-22 PT unavailable for medical 

review of Drug Screen despite intense efforts to contact donor for past 7 

days- results of drug screen will be reported to employer as is." 

On 20 November 1999 Mr. Merrill commenced a voyage on one of 

his employer's vessels, the MN EL PUMA GRANDE, from Jacksonville, 

FL to Bath, Maine. 

Mr. Merrill was not infonned of his drug test results until 14 

December 1999 when he was told by Mr. John Hall, the company's 

general manager, that his test was positive. Mr. Merrill continued to work 

for the company. 

He was not advised that he was ineligible to work under authority 

of his license until he was so infonned by the Coast Guard Investigating 

Officer on 4 January 2000. 

[D&O at 8] As was discussed previously, in his first D&O, the ALJ dismissed the case 

because he concluded that the testing of Respondent was not in accord with Coast Guard 

regulation and because the MRO did not comply with the applicable regulations. [D&O 

at 4, 11-12) On remand, the ALJ determined that Respondent had voluntarily submitted 

to his drug test and that, therefore, the Coast Guard could rely on the results of that test to 

initiate suspension and revocation proceedings. While the ALJ's subsequent decision 

was silent as to the procedural flaws committed by the MRO, the AU found the Coast 

Guard's charge proved and ordered the revocation of Respondent's mariner credentials. 

[D&O II at 2-3] 

I will reverse the decision of the AU only if his findings are arbitrary, capricious, 

clearly erroneous, or based upon inherently incredible evidence. Appeal Decisions 2570 

(HARRIS), a[f NTSB Order No. EM-182 (1966), 2390 (PURSER), 2363 (MANN), 2344 

9 
2 668 

(KOHADJA), 2333 (AYALA), 2581 (DRIGGERS), 2474 (CARMIENKE), 2607 

(ARIES), and 2614 (WALLENSTEIN). For the reasons stated below, I do not find that 

the ALJ erred in finding that the Coast Guard had established a prima facie case for use 

of a dangerous drug. 

49 C.F.R. § 40.33(c)(5) (1999) allows an MRO to verify a test without 

communicating directly with the employee in three specific circumstances. 1

, 2 The record 

shows that none of those circumstances were present in the instant case. Instead, after the 

MRO tried to contact Respondent five times over the course of seven days, he concluded 

that he would not be able to contact Respondent and, accordingly, certified Respondent's 

drug test as positive. [Tr. at 112-118] Although none of the circumstances set forth in 

49 C.F.R. § 40.33(c)(5) were met in this case prior to the certification of Respondent's 

positive test result, the record does show that the MRO discussed Respondent's positive 

test result with Respondent on January 4, 2000. [Tr. at 117] During the hearing, the 

following testimony was heard with respect to that discussion: 

EXAMINATION BY LT. ABDRABBO: 

1 The regulations in 49 C.F.R. Part 40 were significantly amended in December, 2000, after the initiation 

of this case. In accordance with customary procedure and past practices, this opinion will refer to the 

version of t11e regulations in effect at the time that the events giving rise to these proceedings-the 

administration of Respondent's urinalysis test-occurred. 

2 49 C.F.R. § 40.33(c)(5) (1999) states: 

(5) The MRO may verify a test as positive without having communicated directly with 

the employee about the test in three circumstances: 

(i) The employee expressly declines the opportunity to discuss the test; 

(ii) Neither the MRO nor the designated employer representative, after making 

all reasonable efforts, has been able to contact the employee within 14 days 

of the date on which the MRO receives the confumed positive lest result 

from the laboratory; 

(iii) The designated employer representative has successfully made and 

documented a contact with the employee and instructed the employee to 

contact the MRO ... and more than 5 days have passed since the date the 

employee was successfully contacted by the designated employer 

representative. 

10 
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Q. Dr. Jacobs, this is Lieutenant Abdrabbo again. On your 

notes and in your testimony you also indicated that on the 4th of January 

the patient contacted you. Is that correct? 

A. Yes, sir. 

Q. Okay. On the 41

h of January, when the patient contacted 

you, did he request a re-analysis of his specimen at that time? 

A. No, he did not. 

Q. Doctor, when Mr. Merrill contacted you on the 4th of 

January, did he offer any possible alternative explanation as to the positive 

test results? 

A. Mr. Merrill told me at that time that, you know, he did not, 

you know, use, you know, cocaine, and he had no idea how this could 

possibly have occurred. You know, he asked me a question if the 

Lidocaine they used to numb him up for a laceration repair could do this, 

and I told him it would not. But again, Mr. Merrill did point out, I mean, 

you can - someone can slip you stuff without your knowledge that can 

happen, and does happen. But, I mean, that's not part of what I do, or 

even what you guys do. You know, that's just part of things out there and 

you have to try to stay away from places that do that. 

Q. Right. We understand that, Doctor. But to emphasize -

rephrase my question, did the patient give you an explicit alternative or 

possible alternative? Did he make some sort of statement to you that may 

have indicated some other possible source of this cocaine to have been 

introduced into his body or into his system? 

A. As far as a specific source or anything, no. I mean, you 

know, he told me, you know, that he might have gotten something at a 

party or something like that. But no, he did not give me a specific source. 

And, you know, at that time- I neglected to write it down, but at that time 

I did ask him whether he had nasal surgery or anything of that nature in 

the ensuing few days, and he told me no, he hadn't. And again, as I stated 

before, he told me that he did not use cocaine, you know, but it showed up 

positive on the drug screen. 

Q. Okay. But, Doctor, just to further clarify, when you spoke 

with the patient, he did not offer a possible date and time and/or location 

where he may have been accidentally exposed or something may have 

caused a positive test result? 

---- ------

11 
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A. No. 

* * * 

EXAMINATION BY MR. MERRILL: 

Q. Doctor, I remember the conversation, but I don't 

remember. Did you offer to have the sample, the split sample, tested at 

another facility or inform me that that was my right and my option? 

A. At that time, you know, I asked, and, you know, I explained 

that that is an option to have it tested at another facility. 

Q. I don't remember that part. I'm not saying you didn't, I 

just don't remember. 

A. That's one of the things that I always do. Now, they hold 

these things for some time, but not forever. 

Q. I don't remember that part. 

A. The thing I usually tell people at that same time is that the 

odds of it being overturned are miniscule. 

Q. Yes, I remember you telling me unless I could come up 

from [sic] absolute proof 

A. There is -- you know, in a case of cocaine, there really 

isn't a whole lot, you know, ways out of it, like I say, unless you just had 

some nasal surgery and the surgeon used cocaine. Other than that, or you 

had a laceration repaired someplace that uses that, and that would have to 

be within the last day or so. Those are really the only plausible 

explanations that you can put your hand on and say, "Hey, this happened 

and this is why it should be reported negative as opposed to positive." 

[Tr. at 141-145] Based upon this discussion, the record does not support a conclusion 

that, had the MRO fully complied with the regulations, the result would have been any 

different for Respondent. Respondent did not ask to have his sample retested and could 

not offer any conclusive reason for the positive test. 

I have 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 

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2. 66 8 

integrity. Appeal Decisions 2575 (WILLIAMS), 2522 (JENKINS), 2537 (CHA THAM), 

2541 (RAYMOND), ajj'd sub nom NTSB Order No. EM-175 (1994); Appeal Decision 

2546 (SWEENEY); ajj'd sub nom NTSB Order No. EM-176 (1994); Cf Gallagher v. 

National Transportation Safety Bd., 953 F .2d 1214 (10th Cir. 1992) (holding that where 

there was no evidence.that the integrity of a blood sample was actually compromised by a 

procedural error that occurred during sample collection, results derived from the sample 

could properly be relied upon to support the revocation of a pilot's airman certificate). 

The regulatory failure here, that the MRO verified Respondent's test result as positive 

after attempting to contact Respondent for seven days, rather than waiting the fourteenday period required by 49 C.F.R. § 40.33(c)(5), is clearly a technical error that did not 

breach the chain of custody or violate the integrity of Respondent's urine specimen. 

Accordingly, I find no infringement of Respondent's due process rights by the MRO. 

For the same reason, I do not find Respondent's assertions with respect to the 

actions of his employer to be persuasive. 49 C.F.R. § 40.33{c)(3) states, in relevant part, 

that "[i]f, after making all reasonable efforts and documenting them, the MRO is unable 

to reach the individual directly, the MRO shall contact a designated management official 

who shall direct the individual to contact the MRO as soon as possible." In the instant 

case, the record shows that the MRO contacted Respondent's employer in an attempt to 

reach Respondent to discuss his drug test result, but was unable to do so. [Tr. at 125] 

However, as the ALJ noted in his initial decision, "(t]he evidence shows that the 

employer made no effort to place the Medical Review Officer in contact with his 

employee, Mr. Merrill." [D&O at 8] Again, the record does not support a conclusion 

that the outcome of this case would have been different if Respondent's employer had 

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taken the necessary steps to ensure that Respondent contacted the MRO. Therefore, since 

the regulatory infraction did not breach the chain of custody or violate the integrity of 

Respondent's urine specimen, I do not find that Respondent's due process rights were 

violated by the actions of Respondent's employer. 

CONCLUSION 

The findings of the ALJ had a legally sufficient basis. The ALJ's decision was 

not arbitrary, capricious, or clearly erroneous. Because competent, substantial, reliable, 

and probative evidence existed to support the ALJ's Decision and Order on Remand, I 

find Respondent's bases of appeal to be without merit. 

ORDER 

The order of the AU, dated at New Orleans, Louisiana, on January 13, 2003, is 

AFFIRMED. 

V. S. CREA 

V~ce Acdmirar, U.S. Coast Guard 

ice ommandant 

Signed at Washington, D.C. this d-ct"- day of / \ ~),,,__. ;..:\ .-

14 

, 2007.