Three Strikes And You’re Out – For The Coast Guard

USCG V. KYLE ALLEN PFENNING
Decision and Order dated June 22, 2015

ALJ George H. Jordan

In this unusual decision, the Coast Guard lumped together three separate drug violations against the mariner from three different incident dates between 2011 and 2014 – and lost all three of them. The three charges were: (1) December 28, 2011: Positive drug test for marijuana metabolites in a pre-employment test; (2) December 17, 2013: Misconduct for failing to submit to a drug test when the lab samples showed “Incompatible with Human Urine”; and (3) May 23, 2014: Positive drug test for marijuana metabolites in pre-employment test. The Respondent was employed as a pilot of uninspected towing vessels.

On December 28, 2011, the mariner tested positive for marijuana metabolites in a pre-employment drug test. When the Medical Review Officer (MRO) called him, and asked if he had a legitimate medical explanation, he told her that he had a prescription for Marinol. Marinol – medical marijuana, to be administered orally in the form of capsules – was approved in 1989 by the FDA, in capsule form, to treat nausea from chemotherapy (if conventional drugs do not work), and to treat weight loss in AIDS patients. The MRO asked the mariner for his prescription and he sent it to her. The MRO next asked for proof that the prescription was filled. The mariner gave her the telephone number of his doctor to call for confirmation. For reasons not fully explained in the decision, the MRO did not call the mariner’s doctor, but instead, certified the test as positive. The Coast Guard relied on that certification in bringing charges against the mariner for use or addiction to a dangerous drug.

49 CFR sec. 40.141 obligates an MRO to: “(t)ake all steps reasonable and necessary to verify the authenticity of employee medical records.” The issue on this first drug charge was: Did the MRO fulfill her duty to take “all steps reasonable and necessary” to verify this mariner’s medical records? The Administrative Law Judge (ALJ) said she did not. The Coast Guard had argued that the MRO had considered the mariner’s Marinol defense, and had rejected it for medical reasons within her sound discretion. Curiously, however, and possibly suspecting that the MRO’s response would be hard sell to the ALJ, the Coast Guard DID NOT call the MRO as a witness. The mariner, who was proceeding pro se, was able to argue that he had done everything right: He gave the MRO a legitimate medical excuse; he sent her the prescription when asked; and he gave her the contact information for the prescribing physician. The mariner argued that the MRO erred by rejecting the excuse for reasons not set forth in her report; and failing to take “all steps reasonable and necessary to verify the authenticity of” the mariner’s medical records. Moreover, because the Coast Guard did not even call the MRO as a witness at the hearing, the mariner could not examine her to find out why she had disregarded his evidence of a Marinol prescription, and certified his test as positive. The ALJ agreed with the mariner, and found that in failing to verify for herself that the Marinol prescription had been filled, the MRO did not meet her obligation to “verify employee medical records”, and accordingly, the Coast Guard could not meet its burden of proving that the test was conducted in accordance with 46 CFR part 16. The charge against the mariner was dismissed. Strike one.

On December 17, 2013, the same mariner failed another drug test, this one a random drug test, when the lab report came back indicating “incompatible with human urine – substitution”. The mariner was charged with misconduct for “refusal to test”. And here again, the mariner got a break. Random drug tests are governed by 46 CFR sec. 16.230.There are two recognized and accepted methods of conducting random drug tests. The first method is to test individual mariners on a random basis. The second is to use the so-called “whole boat” method, under which it is the vessel or boat, not the mariner, which is selected randomly (and then, all mariners aboard the selected vessel are tested). The key requirement for either test is that the mariner or mariners, if is an entire vessel, being selected for testing must end up having an equal chance of being tested every time a selection is made, and regardless of when he or they were last tested. USCG v. ALLEN at 30-31. If the test is conducted on individual mariners, the testing employer or test administrator must demonstrate at the hearing that the mariner’s name was randomly selected by a procedure that was statistically valid, and that, following selection, his or her name was put back into the pool and the mariner remained equally eligible with all other mariners for the next random selection. If the employer or test administrator cannot prove statistically valid randomness, the requirements of 46 CFR part 16 have not been met; the Coast Guard will not be able to meet that element of its proof; and the mariner will win. USCG v. HOPPER, 2013-190 (Sept. 10, 2014). Alternatively, if the employer wishes to use the “whole boat” method of selection for random drug tests, the same rule applies: the “boat” must be randomly selected, and following its random selection, the boat must be placed back into the pool and be equally eligible with all other boats for the next random selection. That was the Coast Guard’s problem with this charge – the boat was randomly selected but then taken out of the pool so as not to be equally eligible for the next selection. That meant that the mariners aboard that boat, in turn, had not been randomly selected by a scientifically valid method, and the ALJ was required to dismiss as a matter of law. App. Dec. 2704 (FRANKS) (2014). Strike two.

On May 23, 2014, the same mariner again tested positive for marijuana metabolites on another pre-employment test. As noted at the outset, all three charges were heard together – an unusual procedure – in one hearing in Memphis on September 9 and 10, 2014, but that gave the mariner the benefit of being opposed by the same mistake-prone Coast Guard prosecutor; and here, again, that prosecutor did not disappoint. For this charge, the Coast Guard prosecutor inexplicably neglected to introduce the laboratory report (known as the “litigation package”), or to call a laboratory representative to testify. As a result, the Coast Guard could not meet its burden of proving who performed the test; whether the person was qualified to do so; and whether the chain of custody was intact. Strike three.

EVALUATION; This case has a thorough discussion of the authorities and burdens of proof for each element of each of the three separate charges and, for that reason alone, this is a good case to keep in your file for reference should you find yourself defending a mariner in a drug case. But there is another issue discussed in detail in this long decision that also makes it worth examining and keeping for future reference. Under his analysis of the “Evidentiary Standard”, ALJ George Jordan spent almost a full page discussing the role of Daubert in ALJ cases even though the issue was apparently not raised by either party. This is of some interest because discussions of Daubert are rare in ALJ cases, although THIS particular discussion is hardly enlightening. ALJ Jordan begins by noting that “strictly speaking, Daubert does not apply to this proceeding (i.e., an ALJ proceeding), since Daubert and its progeny interpret Federal Rules of Evidence, which do not apply to administrative hearings (citation omitted). Nevertheless the “spirit of Daubert” does apply to administrative proceedings because: (1) “junk science” has no more place in an administrative procedure than in a judicial one (again, citations omitted). Thus, one major inquiry (the ALJ) must make is whether the scientific testimony or evidence introduced by the Coast Guard is not only relevant but reliable.” As a “relevant and reliable” standard is pretty much the same as the Daubert standard for examinating expert testimony, what ALJ Jordan seems to be saying is that while Daubert is not strictly required in his proceedings, he will nonetheless require the standard applied anyway against any scientific evidence introduced in his proceedings. Presumably, the standard would be applied to the Coast Guard’s offer of the scientific validity of the random selections in its case, had they undertaken to offer any.

Close But No Cigar: An Unusual, And Almost Successful, “Battle Of The Experts” In An ALJ Case

USCG v. SOLOMON
Appeal Decision 2708 (2015)

Equally as rare as a Daubert challenge in an ALJ case is a battle of the experts. This case was a random drug test failure, and the defenses in most such drug cases tend to relate to technical or procedural rule infractions, such as failure to prove “randomness” as discussed in the case above. Here, instead, an unusual chemical defense was mounted: The lab report came back reporting a creatinine concentration of 1.4 mg/dl. 49 CFR sec. 40.93 (b) sets a minimum creatinine cut-off level at 2 mg/dl; anything below that is considered inconsistent with human urine, and therefore, absent some medical explanation for the anomaly, which the mariner here did not offer, is then treated by the Coast Guard as a substitution of the specimen, and chargeable as misconduct. The sample was collected on a hot day, and stored in a hot environment for 8 days. The MRO, the Coast Guard’s only medical witness, claimed in his testimony that creatinine in a urine specimen would not degrade at any temperature below 300 degrees Celsius. That was apparently effectively rebutted by the mariners’ two medical witnesses, Dr. Syfert and Dr. Logan. Their testimony persuaded the ALJ that the MRO was wrong and that the 300 degree Celsius melting temperature related only to crystalline creatinine, rather than liquid creatinine as it exists in a urine sample. That was, however, a brief and fleeting victory. While the respondents’ two doctors were able to testify that unrefrigerated creatinine, stored in a urine sample, would in fact undergo chemical degradation, they could not connect a specific rate of degradation with a temperature and time period. In other words, the mariner still was not able to establish that the 8 days of hot temperatures DID cause her creatinine to degrade to the 1.4 mg/dl count. In short, the mariner could not prove causation, and that was fatal to what was an otherwise a credible and persuasively presented defense. Curiously enough, there was no discussion of any Daubert challenges raised in this case by either the parties or by the ALJ.

EVALUATION: The mariner here might have succeeded had her experts subjected the urine sample to their own further chemical analyses, or researched more thoroughly the chemistry of degradation over time. The time and temperatures were apparently not in dispute; only the chemistry was missing. If the facts similar to these arise again, this might be a good case to keep in mind.

Feeling Very Strongly About It Both Ways: Just What Makes A Dangerous Drug Dangerous, Anyway?

USCG v. RODNEY DARRELL CURLEE
Decision and Order Dated July 7, 2015

ALJ Bruce Tucker Smith

The mariner in this case tested positive for amphetamines in a random drug test. When called by the MRO and asked if he had any explanation for the test results, the mariner said – yes he did – he was diagnosed with ADHD and he had been taking Adderall, an amphetamine and a Schedule II controlled substance, which is a recognized treatment for ADHD. Following the script, the MRO then asked for a copy of the prescription. The mariner responded that he didn’t have one; he was taking his wife’s medications because he couldn’t afford separate physicians for both himself and his wife. The case went to the ALJ, and the mariner produced his treating psychiatrist, who confirmed before the ALJ that the mariner had a long-standing diagnosis of ADHD and that it mandated his use of Adderall. The psychiatrist went on to explain that the medication was essential for the mariner’s ability to “concentrate on his job as well as his activities of daily living”. The ALJ found the psychiatrist, and the mariner, both highly credible. The ALJ took pains to note that the mariner had freely testified against his own interests by admitting that he violated his employer’s policy by taking prescription drugs without a prescription. The ALJ also noted that his employer had written a highly favorable letter praising the mariner’s reliability and job performance, with full knowledge that he had tested positive for amphetamines. Despite all of this, the ALJ still found that the Coast Guard had proved its prima facie case of use of dangerous drugs by a preponderance of evidence, and accordingly revoked the mariner’s license. The ALJ then went on to state that the totality of the circumstances and the evidence suggests that the Respondent is a strong candidate for clemency. Respondent’s use of Adderall was, and is, medically appropriate. The ALJ urged the Commandant to consider “that Respondent’s use of Adderall is supported by medical evidence and is consistent with safety at sea.” With that conclusion, the ALJ urged to Commandant to grant the mariner’s application to waive the three year minimum requirement for requesting administrative clemency. [Administrative Clemency is provided for at 46 USC sec. 7701 (c); 46 CFR sec. 5.901 – 5.905; and U. S. Coast Guard MARINE SAFETY MANUAL CH. 5. See, Currents and Eddies, ed. 12/23/2014.]

EVALUATION: This case seems, at first blush, to be somewhat inexplicable. First, the ALJ credits the mariner and his doctor with complete and high credibility in their testimony, which seemingly established that the mariner had a medical excuse for the positive drug test. Then, the ALJ revokes the mariner’s license after finding that the Coast Guard PROVED its case of use of, or addiction to, a dangerous drug. One seeming justification for what seems an inexplicable result is found in footnote 8, where the ALJ recites the fact that the mariner failed to abide by his marine employer’s policy manual, prohibiting the use of “illegal” drugs, which it defines as including any drug “which is legally obtainable, but has not been legally obtained.” The ALJ then notes that this could have served as a basis for misconduct, “which was not pled in this case”. The real answer, however, is centered around footnote 4, and the key lies in the definition of a “dangerous drug”. Turning to the legislative history of 46 USC sec.7703 (B) (2), and 7704 (c), the ALJ states that Congress “clearly intended that otherwise legal drugs, used without a prescription, are in fact “dangerous drugs”. The ALJ also reaches this conclusion by stating in the footnote that “use” when applied to “narcotic drugs” or “controlled substances” is not intended to include off the shelf drugs or drugs acquired by prescription lawfully issued by a medical doctor, “as long as the drugs are used by the individual in the recommended amounts and the drugs will not impair the individual’s ability to perform duties.” Footnotes 5 and 6 of this decision, not repeated here, may be helpful in the defense of a mariner in parsing what exactly is meant by the terms “dangerous drug” and “controlled substance”. These 3 footnotes, 4, 5, and 6, are the best synopsis we have seen of the authorities governing these concepts. This decision is currently on appeal to the Commandant, and we look forward to seeing how, and if, the Commandant will treat this unusual set of facts with any constructive creativity. (I know – dream on!)

Coast Guard Clarifies Reporting Requirements in NVIC 01-15

In Navigation and Vessel Inspection Circular No. 01-15 (“NVIC 01-15”),  issued July 21, 2015, the Coast Guard set forth guidance and clarification of itscasualty reporting requirements. The NVIC stresses that it is not a rule change nor is it a legal opinion; it is merely guidance.

Much of the NVIC relates to guidance for internal Coast Guard investigation procedures with little or no relevance for the mariner. With respect to the parts relevant to mariner reporting responsibilities, the NVIC reiterates the two commonly known reporting requirements. The first is46 CFR sec. 4.05-1 (a) (1)-(9),  the requirement to report to the nearest Coast Guard office certain specified casualties “immediately after the addressing of resultant safety concerns”. The specified casualties are reasonably well identified by the regulation and leave little to the discretion of the mariner: groundings (intentional or otherwise);  bridge allision;  loss of main propulsion, steering or any system effecting seaworthiness or fitness for service; loss of life; injury requiring medical attention; property damage exceeding $25K; environmental damage, etc. That report must include the information required by 46 CFR sec. 4.05-5, which includes the identity of the vessel and owner, the casualty location and the nature and extent of the casualty and the damages or injuries sustained.   The second is 46 CFR sec. 4.05-10, the requirement to file a Form CG-2692 within 5 days of any casualty reportable under sec. 4.05-1.

The NVIC contains two additional policy statements of potential importance to the mariner. First, if there is any doubt about whether a report should be made, the mariner should contact the nearest Coast Guard office to discuss. Second, the Coast Guard retains the authority to investigate any “marine casualty oraccident” regardless of whether a report was required or not. For the mariner that means that not filing a report will not necessarily end the matter, and that a subsequent Coast Guard investigation may determine that a report SHOULD have been filed, a finding that could constitute a violation of regulation, and which could result in an actionable charge against a mariner’s license.

Of particular value to the mariner will be Enclosure (1) to the NVIC , which identifies all of the  casualty reporting regulations and provides for each a “policy and interpretation” note which helps to define and amplify the intent and scope of the regulation. This enclosure is one of the most useful documents on the subject put our by the Coast Guard in recent years, and a copy of this NVIC should be kept close at handby mariners who have reporting obligations, as well as by the attorneys who advise them.

Further Thoughts on Defense of Drug Cases: More Practical Case Notes

Defending a licensed mariner against a Coast Guard drug claim can be a demanding task. From time to time, Currents & Eddies has discussed various aspects of defending drug charges against mariners, including reviews of recent decisions and other legal aspects of providing such a defense. This discussion follows and enlarges upon remarks made upon the subject at last spring’s MOPS Attorney Luncheon in New York, and also incorporates some earlier articles in this newsletter.

In App. Dec. 2692 (CHRISTIAN) (2011), the Vice Commandant took pains to straighten out confusion on the part not only of mariners, but also, obviously, of Coast Guard Investigators and Administrative Law Judges (ALJ’s), about which specific regulations apply to drugs, and which to alcohol. In that case, the Vice Commandant stated: 49 CFR Part 40 applies to mariner drug testing ONLY; 46 CFR part 16 (and specifically, sec. 16.230) similarly applies to Mariner chemical testing for drugs only and NOT ALCOHOL; 46 CFR sec. 4.06 governs mandatory chemical testing following incidents; and, because “dangerous drug” and “alcohol” are defined separately in the regulations (see 46 CFR sec. 16.10), the two terms are not interchangeable, and the requirements for alcohol testing are found separately at 33 CFR Part 95 (sec. 95.030) , and 46 CFR sec. 4.06. In CHRISTIAN, the ALJ below had improperly applied the drug test “randomness” standard from 46 CFR sec. 16.230 to an alcohol test, found that the alcohol test was not “random” and dismissed the Coast Guard’s case. The Vice Commandant reversed and remanded back to the ALJ to apply the correct standard. The governing regulations for drug versus alcohol testing are not parallel, and not clear; and accordingly, this is a good case to keep on file.

It is also important for the license defense attorney to distinguish what specific type of drug test the Coast Guard is attempting to enforce against the mariner, because the type of test will determine the Coast Guard’s burden of proof. The first question to ask is whether the drug test was a government-ordered test, or a company-ordered test. The five government-ordered tests are identified at 46 CFR sec. 16.210- 16.250: (1) pre-employment; (2) periodic; (3) random; (4) serious marine incident; and (5) reasonable cause. Of these, the most frequently challenged (and therefore probably the most challengeable) is the random test; but challenges have also succeeded against periodic and reasonable cause tests as well.

For a government-ordered drug test (sometimes referred to as a “Part 16” test), the Coast Guard has the burden of proving: (1) the respondent was tested for dangerous drugs; (2) the respondent tested positive; and (3) the test was conducted in accordance with 46 CFR part 16. App. Dec. 2697 (GREEN) (2011). If the Coast Guard can satisfactorily prove those three elements, it will benefit from a “regulatory presumption” that the mariner was a drug user. App. Dec. 2704, at 10-11 (FRANKS) (2014). The third element is the main tool for a mariner to challenge a government-ordered test. If the drug test ordered was a random test, the Coast Guard has the burden to prove that the selection of a crewmember for a random drug test was made by a scientifically valid method. If the Coast Guard cannot offer the scientific evidence of “randomness” then it will not meet its burden of proving the third element of its proof under GREEN, supra. The lesson for license defense attorneys from GREEN is this: in answering for a mariner in a drug claim, NEVER admit to the Coast Guard’s characterization of the drug test. If a mariner should admit to taking a “random”, the defense will be lost. The Vice Commandant notes that Green appears to have done that in his case, but because he was proceeding pro se, he was given some latitude.

In App. Dec. 2704 (FRANKS) (2014), the Coast Guard charged the mariner with failing a periodic drug test, but neither the ALJ nor the Vice Commandant found evidence in the hearing record that the test was a periodic test within the meaning of 46 CFR sec. 16.210 – 16.250. The Vice Commandant noted in FRANKS that the Coast Guard’s third element of proof, that is, proof that its test was conducted in accordance with regulation, meant two things: (1) that the reason for testing was one of the 5 specified by part 16; and (2) that the test was conducted in compliance with the procedures set forth in 49 CFR Part 40. FRANKS, supra at 4. In failing to prove that the test administered to the mariner was “periodic” within the meaning of the regulations, the Coast Guard failed to meet its burden of proving its prima facie case, and the charges were therefore dismissed.

A non government- ordered (or “non Part 16” ) test is one required by the employer rather than by Coast Guard regulations. The Coast Guard can still use failure to pass a non Part 16 drug test as proof of drug use. See, e.g., App. Dec. 2615 (DALE) (200) (mariner’s refusal to submit to an employer-ordered drug test was actionable as Misconduct). But here is the important distinction: in a non Part 16 case, the Coast Guard does not benefit from the “regulatory presumption” noted above under the discussion of the Green case. Rather, the Coast Guard must prove (rather than benefit from a presumption of), actual drug use. That means, in effect, that the Coast Guard needs more evidence to prove drug use than merely a positive test result, as would be the case in a part 16 claim. See., App. Dec. 2704 (FRANKS) (2014) at 10-11.

An overview of D.O.T. drug and alcohol testing regulations (including an earlier discussion of the CHRISTIAN case), as well as citations to helpful authorities for various drug charge defenses, can be found in CURRENTS & EDDIES No. 12 (12/21/11). The GREEN case was also discussed in detail in CURRENTS & EDDIES No. 13 (5/9/12); and the FRANKS case was reported earlier in CURRENTS & EDDIES No. 17 (12/23/14).

Coast Guard’s Pro Bono Program Leaves Serious Questions Unanswered

In a letter dated May 15, 2014, and addressed to the Chair of the Maritime Law Association’s Young Lawyers Committee, Coast Guard Chief Administrative Law Judge Walter J. Brudzinski announced that the Commandant is sponsoring the establishment of a network of attorneys to whom mariners facing a Coast Guard license action can turn to for pro bono legal assistance. In company with that announcement, the Coast Guard issued a notice titled: “USCG S & R Proceedings – Free Legal Representation List”. That list has been updated several times, the latest of which is dated 10/17/14, and which contains the names of attorneys in fourteen states.

The premise of this program is the undisputed fact that, unfortunately, many mariners: do not have license insurance; are not provided license defense benefits by their employer or union; or cannot afford legal representation. The office of the Commandant should be commended for recognizing this widespread need, and for reaching out to attorneys and to mariners in an effort to address the problem. But for the time being, the applause should stop there.

That is because there is a very large flaw with the plan, at least as originally conceived and portrayed in Judge Brudzinski’s letter. The letter says that a Notice about the program, along with a list of participating attorneys, will be sent to the mariner, but only AT THE TIME OF the “initial pre-hearing teleconference.” As license defense attorneys know, that “teleconference” does not occur until AFTER the Coast Guard has filed its Complaint, and until AFTER the Respondent has filed an Answer. In other words, mariners who the Coast Guard now recognizes need the legal assistance of an attorney to defend their licenses, their livelihoods, and their rights, will still have to represent themselves while dealing directly with a Coast Guard IO after the incident, and also while preparing and filing their Answer and their Defenses, the very time period – by the way – which is probably the most critical stage of the litigation, AND the phase in which an unrepresented mariner is probably MOST LIKELY to prejudice his or her rights and defenses. And while it would probably be the case that the assigned ALJ would, at the pre-hearing teleconference, willingly grant the motion of the mariner’s pro bono attorney for leave to file an amended Answer and to assert appropriate defenses, it may by that time be too late to help the mariner. Again, as noted above, the most troubling aspect of this “delayed representation” project is the very real prospect that, without early advice of counsel from the very outset, the as yet unrepresented mariner will be contacted directly by the Coast Guard IO, may be called upon to give a written statement (beyond just the required 2692) and/or as frequently occurs, may be asked to attend a meeting with two or three Coast Guard investigators (at the friendly confines of the local Coast Guard station), where the interview will be recorded. During all of this, under the Coast Guard’s new pro bono program, the mariner will still be UNREPRESENTED, and in freely participating (believing, as many do, that such cooperation will help their case), the mariner may unwittingly make admissions or otherwise prejudice the case so severely that the only recourse left, after assignment of pro bono counsel, will be to accept the Coast Guard’s settlement proposal.

In fact, the possibility that that point is tacitly understood by the Coast Guard has already been raised. At the MLA Young lawyers’ meeting referred to above, one of the lawyers in the MOPS Network reported overhearing a conversation in which an ALJ said, words to the effect of: most (meaning mariners) only need counsel to advise them on their settlement with CG (seeming to imply guilt before trial). Living as we do, in the post-ALJ scandal era, the Coast Guard cannot afford any further stains on the integrity of its ALJ system. If the Commandant, and the office of the Administrative Law Judges, are sincere in their expressed purpose of ensuring that mariner-respondents “understand the nature of the allegations against them, are informed of the applicable law, and advised of the opportunities to protect their interests and the consequences of failing to do so” (to quote CALJ Brudzinski’s May 15, 2014 letter), then mariners must be told about the opportunity for pro bono representation by the IO, at the outset, before they are told about anything else. Even giving them the Notice and attorney list with the Complaint may be too late, as many mariners have, by that time, already spoken at length with an IO, WITHOUT representation. The Coast Guard’s currently-conceived pro bono program may, in the end, serve only to help the Coast Guard grease the wheels under its settlement agreements, while permitting the Coast Guard to pay lip service to the legal rights of mariners. Until the Coast Guard is willing to accept the consequences of advising mariners of the right to pro bono representation AT THE OUTSET, and BEFORE any statements or interviews are conducted by its IO’s, the program will not adequately serve to protect the legal rights of mariners, and the Coast Guard should not receive any credit for effectively doing so.

Commandant Affirms Another Drug-Related Dismissal On Procedural Grounds

USCG vs. MICHAEL AARON FRANKS

(App. Dec. 2704) (July 30, 2014)

In this decision, the Commandant ruled that the third element of the Coast Guard’s case must be proof of compliance with 46 CFR Part 16. In so ruling, the Commandant concluded that the drafters of 46 CFR Part 16 recognized, in its preamble, the potential role of the Fourth Amendment to the United States Constitution in precluding unreasonable searches and seizures. That preamble continues by stating that, for proof of a drug case, the government must demonstrate that the public’s legitimate interest in conducting the search outweighs the individual’s legitimate expectation of privacy. Accordingly, the court (read, ALJ) must consider “the scope of the intrusion, the manner in which it is conducted, and the justification for initiating it.” This means, in the context of a Coast Guard drug test failure case, that the purpose of the test must be proven at the hearing, as well as that the reason must have been legitimately and properly applied to the circumstances of the mariner’s testing.

In the ALJ hearing below, the evidence was that the mariner had been ordered by his employer to appear for a ”periodic” drug test: he did so and tested positive for cocaine metabolites. Under 46 CFR sec. 16.220, “Periodic” drug tests are required for an initial or renewal license issue, or a raise of grade. At the hearing, the Coast Guard offered no evidence of why the “Periodic” test had been ordered. This, according to the ALJ, Dean C. Metry, was fatal to the Coast Guard’s case because it did not satisfy the third element of its burden of proof for a drug case, applying the requirements of 46 CFR Part 16.

On appeal, the Coast Guard attempted, unsuccessfully, to argue that compliance with Part 16 was never required as a third element of proof, and that it had never before been concerned with the “why” of a drug case, only the “how” (meaning that it had to show procedural compliance only), a position that had, in fact, been affirmed in some prior Appeal Decisions.

Citing the constitutional dimensions of a drug test as noted above, the Commandant concluded that the Coast Guard’s third element of proof in a drug case must include proof of compliance with 46 CFR Part 16, or the testing would “expose the mariner to potentially unreasonable government action…” App. Dec. 2704 at 9 (2014). The ALJ’s dismissal of the Coast Guard’s Complaint below was upheld.

As we have noted in earlier articles (see, e.g., CURRENTS & EDDIES, May 9, 2012 [USCG v. GREEN]), the one consistent way to defeat a Coast Guard drug test failure charge remains proving that the Coast Guard’s case did not strictly comply with the letter of the regulatory testing protocols. The classic example of that, and a flaw that has resulted in several overturned convictions, has been the Coast Guard’s failure to prove actual “randomness” when that was the stated reason for the test (that was the case in GREEN). The FRANKS decision now adds to that defense one more possibility for a successful challenge: failure on the part of the Coast Guard to properly prove WHY the drug test was undertaken by the mariner.

Administrative Clemency: The Mariner’s Last, Last Chance

Chapter Five of the Coast Guard’s Marine Safety Manual contains a discussion about a little-know procedure called Administrative Clemency. The procedure is also identified in 46 CFR Part 5. The remedy is available only to mariners who have either had their license revoked, or who have voluntarily surrendered it. In brief review, the process requires: (1) a complete proof “cure” of the causes underlying the revocation (whether drug-related, or otherwise; and if drug related, to include the random drug test results, AA/NA proof of attendance and the MRO’s letter stating the mariner is cleared to return to sea with minimal risk to the public); (2) A complete and signed application for an initial license; (3) A letter from the applicant stating how the original problem has been cured, how he or she intends to avoid the problem in the future; (4) Details of employment history since the surrender or revocation; (5) FBI criminal background check initiated by the mariner and addressed to the IO in a sealed envelope; (6) Driving record from the mariner’s state or states; (7) Letters from employers; (8) Letters of reference; and, if the application is made prior to the three-year waiting period (9) A Motion for waiver of the three year waiting period. The mariner’s papers must be filed together in one package, and not piecemeal. There is a check list and instructions for the preparation and assembly of these materials at page C5-14 of the Marine Safety Manual.

In addition to the above, if less than three years have elapsed since the revocation or surrender, the mariner must also include a motion to re-open the case with the Coast Guard Docketing Center, which will then forward the papers to an ALJ. Naturally, the Coast Guard will have a chance either to assent, or to oppose the mariner’s motion for administrative clemency. If more than three years have elapsed, the application, and the package of papers, must be sent to the Commandant. See, generally, 46 USC 7701 (c); 46 CFR sec. 5.901 through 5.905; and U.S. Coast Guard MARINE SAFETY MANUAL, ch. 5. If the application is successful, the Coast Guard will count all of the mariner’s time in grade, and will therefore re-issue mariner’s license in the same grade as when it was revoked or surrendered.

A Revocation On Crack

By Brian McEwing

Coast Guard regulations require that marine employers drug test any employee who holds a safety sensitive position aboard a vessel. Employer drug testing procedures must comply with the Department of Transportation (hereinafter “DOT”) regulations which are set forth in 49 C.F.R. Part 40. If a holder of a Merchant Mariner Credential (hereinafter “MMC”) fails a chemical test for dangerous drugs, the employer must report the results to the Coast Guard, who will conduct an investigation and, if warranted, initiate suspension and revocation (hereinafter “S&R”) proceedings against the individual’s MMC.

Recently, the Coast Guard initiated an S&R proceeding against our client, a former enlisted member of the Coast Guard who was also the holder of a MMC, based solely on the results of a non-DOT drug test, which were positive for cocaine. At the time of the administration of the test, the client was an active member of the Coast Guard.

Following the drug test, Coast Guard investigatory services conducted an investigation, including interviews with the client and other Coast Guard members. The client vehemently denied any drug use, produced a negative hair drug test and passed a polygraph test. Despite presenting this evidence to the Coast Guard Administrative Separation Board (hereinafter “Board”), our client was administratively separated from the Coast Guard on the basis of an allegedly positive test for cocaine.

Shortly thereafter, the client was served with the S&R complaint, and contacted the author seeking advice on defending his MMC. During the initial meeting with the client, it was clear that something was amiss, and in fact, the underlying test proved to be completely unreliable, as we will explain below.

Test Differences Loom Large

As an initial matter, the test relied upon by Coast Guard investigators was conducted pursuant to the Coast Guard’s own drug testing program. Somewhat surprisingly, the Coast Guard’s drug testing procedures vary significantly from the very DOT drug testing procedures they require for merchant mariner testing. Drug tests conducted in accordance with DOT standards have important safeguards in place to ensure that no test is reported as positive unless all of the collection and testing procedures are followed, and a Medical Review Officer (hereinafter “MRO”) reviews the chain of custody and lab testing documentation and attempts to consult with the mariner. Congress required these safeguards to protect civilian transportation workers from loss of livelihood resulting from false positive tests. Senate Rep. No. 102–54 (1991). In contrast, members of the Coast Guard are provided few safeguards, and those charged with submitting and collecting specimens have not been trained to follow the procedures set forth in the Commandant Instruction M1000.10 (hereinafter “Commandant Instruction”) when administering drug tests. Instead, they simply follow the orders of the Coordinator (also a Coast Guard member) when drug testing is performed.

The Coast Guard’s drug testing program requires that the selection of personnel and collection of samples be performed in accordance with the Commandant Instruction. The Commandant Instruction provides that the analysis of samples be conducted in accordance with Department of Defense (hereinafter referred to as “DOD”) laboratory procedures, not DOT laboratory procedures (which are promulgated by Health and Human Services (HHS)). We argued throughout trial that the non DOT drug test result could not be used as evidence of drug use in an S&R proceeding for a variety of reasons, most particularly, that the Commandant Instruction and DOD procedures lack the important safeguards required by the DOT testing procedures. These include trained collectors, split sample testing, use of a HHS certified laboratory and the review by a MRO.

This was a case of first impression. Prior to this instance, the Coast Guard has never relied solely upon a non-HHS certified laboratory test result in an S&R proceeding. In fact, the Coast Guard had previously decided sua sponte to retest a mariner’s specimen using a HHS certified lab, after discovering that the employer’s test was performed at non-certified lab. Appeal Decision 2542 (DeForge) (1992).

In our case, the Coast Guard’s reliance on a non-DOT drug test proved fatal to its case, precisely because the testing procedures lacked the safeguards mandated by DOT regulations. The lack of procedural safeguards during the collection of our client’s specimen was the direct cause of the false positive report, resulting in the loss of his Coast Guard position and threatened his livelihood. Many procedural errors were made, the most significant being: 1) the bottle labels and provider information were on two separate sheets of paper (more on this to follow); and 2) the Coast Guard “coordinators” (synonymous with DOT collectors) have no formal training. Instead, on-the-job training consisted of another member instructing them on the selection and collection procedures, in accordance with their own on-the-job training. It is not hard to see the train wreck coming because there is no requirement for formal training, no training manual and no training on problem collections.

In the test at issue, the coordinator was not even authorized by Coast Guard Command to collect samples (despite the collector’s assertion that another internal Coast Guard memorandum, not introduced at trial, gave such authorization). Not only was there a lack of authorization, the coordinator did not understand even the Commandant’s procedures in selecting members for testing and for collecting specimens.

Procedural Problems Proliferate

The Commandant Instruction required that the coordinator select one random number and compare that number to the Social Security numbers of station personnel. Instead, the coordinator selected five numbers and applied them to the members’ personnel ID, not their Social Security numbers. If the proper procedure was followed, even using all five numbers, the Respondent would not have been selected for testing. The coordinator was also not clear on whether the test was random or an inspection (Commandant Instruction provides for inspection testing of larger sample size to ensure good order in the unit, which is not permitted in DOT testing).

Most importantly, the coordinator misunderstood the procedures for specimen collection. The coordinator was wrong about: 1) who was responsible for initiating the Urine Provider’s Checklist (containing a member’s identification information), testifying that the members were responsible, when the Commandant Instruction requires the coordinator to initiate; 2) who was responsible for placing the label on the specimen bottle, testifying that the member was responsible, when the collector was required to apply the label; and 3) when the label was to be placed on the bottle, testifying that the label was to be placed on the bottle afterthe sample was provided, when the Commandant Instruction required that the label be placed on the bottle before it is given to the member to provide the sample.

The Commandant Instruction requires that the coordinator and member are to initial the label prior to its application on the bottle, to verify that the member’s Social Security number and the specimen number are correct. In the test at issue, the label with our client’s Social Security and specimen number was left on a sheet of Avery labels containing other member’s labels. The coordinator did not know that the observer should only initial the label after the specimen was provided — certifying that they observed the member provide the specimen (all Coast Guard testing is direct observation). In effect, every task the collector was required to perform was performed in contradiction to the Commandant instruction. The collector’s failures, coupled with the use of separate specimen labels and Urinalysis Provider checklists, became the key facts in the defense.

Prior to trial, we sought production of the actual specimen bottle, which fortunately was still available. The Coast Guard opposed this discovery, arguing, inter alia, that the retrieval of the specimen bottle from the lab and delivery to counsel was burdensome, unusual in S&R proceedings (perhaps our bar needs to remedy this), and highly unlikely to reveal any information which has significant probative value in the case. After the ALJ denied our initial request for production, we sought production directly from the lab, because DOD procedures permit trial counsel to obtain the sample.

Message In A Bottle

After the lab agreed to provide the specimen bottle, Coast Guard took the position that the bottle was “Coast Guard property”, and instructed the lab not to release the specimen bottle. We then filed an emergent motion for a subpoena or order directing the lab to immediately release the specimen bottle to counsel, or alternatively to the court. The ALJ granted our motion, and directed the lab to deliver the specimen bottle to the hearing office no later than the day before trial.

At 3:00 pm on the eve of trial, the inspection took place, and the smoking gun that we knew had to exist, was finally revealed. Although our client’s Social Security and specimen number appeared on the label, his initials did not. Instead, someone else’s initials were found on the label. Our client had initialed the label immediately before it was applied to the bottle. We also learned that the observer’s initials did not match, and appeared to be those of the observer of the person who was tested immediately after our client.

Prior to the commencement of trial, we conferred with the prosecutor regarding this newly discovered evidence and requested a dismissal of the complaint. The prosecutor rebuked the offer, arguing that the label still contained our client’s Social Security number (hence the title of this Article). At trial, the drug test was the only evidence presented by the Coast Guard. It is telling that our client’s commanding officer testified that there was no other evidence of drug use, and that he had even called the lab because he could not believe that our client’s test was positive.

Coast Guard’s drug testing expert testified that the lab was not HHS certified, did not perform split sample testing and no MRO review was necessary when the test is positive for cocaine. (DOD does not acknowledge any legitimate use of products containing cocaine metabolites). The ALJ did not appear to be impressed with the non-compliance with DOT mandate in this regard, and as it turned out, this non compliance was not the cause of the positive report. We did not doubt that the specimen tested positive for cocaine metabolites – but we were certain that the positive specimen did not belong to our client. The question was: How did the labels get switched, and/or who switched the labels and how?

The coordinator testified that it was not her responsibility to apply the labels to the bottles, and thus she did not pay attention when they were applied. The coordinator also testified that she did not compare the initials on the label to those on the Urinalysis Provider’s checklist because the checklist had already been placed in a folder, and she did not believe that the comparison was required. Moreover, she testified that the initials used by the specimen provider were irrelevant. This lack of verification was the direct cause of the mistake, and of the subsequent nightmare endured by our client. Even our client’s observer testified that he and our client initialed the same label, and that he watched it applied to a specimen bottle. He also testified that his initials did not appear on the bottle, which allegedly contained our client’s specimen. Despite this testimony and the direct evidence, the prosecutor pressed on (validating again, this Article’s title).

The reader will recall that the labels of all of the members tested remained on the same sheet, and that they had been completed prior to each member receiving a specimen bottle. These labels were not applied before the specimen was provided, and the sheet of completed labels remained on the coordinator’s table, where they were available to all members returning to the table with their sample.

Guilty Subject Switches Labels

According to the Urinalysis Ledger, our client was the third of eighteen members to complete his paperwork that day. Our client repeatedly told us that a certain member was in front of him in line when he returned with his sample. We attempted to elicit the names of the members tested before and after our client, however the Coast Guard witnesses could not, or would not, recall the names of the other members. We filed an emergent motion on the night after the first day of trial, seeking an un-redacted urinalysis ledger that would show the members immediately ahead and behind Respondent in line for testing. Upon review of this ledger, it became clear that the member who was immediately behind our client when he obtained his bottle (and obviously knew that he was going to test positive), beat our client back to the table with his specimen, and was therefore able to place the label with our client’s Social Security number on his bottle.

On the following day, the defense presented a single witness – our client. He testified that the initials on the Urinalysis Provider’s checklist were his, but that the initials on the label of the specimen bottle were not. After a lengthy recess at Coast Guard’s request, and an unproductive cross examination of our client, the prosecutor sought and was granted a 30 day continuance in order to seek to locate a rebuttal witness (yet again, validating the appropriateness of this Article’s title). Just prior to the deadline, Coast Guard moved to withdraw the complaint “without prejudice”. On the same day, the Court issued an order dismissing the complaint with prejudice.

After subsequently filing a motion for fees under the Equal Access to Justice Act, we learned that District 1 of the Coast Guard is now investigating the events surrounding the false positive drug test. Despite our opposition, the Court granted a 30 day extension of time to permit the conclusion of an investigation which, in our view, is too little and too late. An award of fees has never been awarded following an S&R proceeding, so stay tuned– a future article on that topic is likely.

The author, Brian McEwing, is a retired captain and port captain who maintains both inland and ocean unlimited licenses as well as a pilot endorsement. He is a partner in the firm Reeves McEwing, LLP. He was assisted at trial by Scott Gunst, also a licensed master and an associate with the firm. Reeves McEwing LLP has offices in Philadelphia, Pennsylvania, and Cape May, New Jersey.

Beware Of Coast Guard Investigations – Some May Be More Equal Than Others.

By Bill Hewig

If your mariner client receives word that he or she is to be the subject of a Coast Guard investigation, your first words to the Coast Guard should be: “Is this to be a Part 4 or Part 5 Investigation?” Depending upon the nature of the investigation, the answer to that question could have a significant bearing on your client’s legal rights, and possibly even the outcome of the investigation. You should, therefore, always be sure to clarify ahead of time which part of the Coast Guard’s regulations will govern the Coast Guard’s conduct. Normally, the investigation preceding a license action for negligence, incompetence or misconduct will proceed under 46 CFR. Sec. 5.101 (b) which states, in relevant part: “In order to promote full disclosure and facilitate determination as to the cause of maritime casualties, no admission made by a person during an investigation under this part or part 4 of this title may be used against that person in a proceeding under this part, except for impeachment.” The Coast Guard’s regulations under Part 4 also contain a section discussing investigations, but that section does not expressly state that admissions made during the course of an investigation under Part 4 may not be used against the mariner. See, 46 CFR sec. 4.07-1. For most Part 4 investigations, a parallel statement in the Part 4 regulations would not be necessary because, as noted in the above citation, the scope of Sec. 5.101 (b)’s protection includes investigations not only “under this part” (i.e. – Part 5); but also “ under part 4” (i.e. – investigations under Sec. 4.07-1). Nonetheless, there are some investigations, at least by the Coast Guard’s own interpretations of its regulations, which are not included within the “or under part 4” language. This can be seen in a recent Coast Guard investigation in Oakland, California, where precisely this issue arose.

Walking The Tightrope Without A Net

The mariner was a licensed third mate, who had been logged and fired by the captain of his ship for what appeared to be, and for what the mariner claimed was, a laundry list of trumped-up charges based entirely upon a personality conflict. There was no grounding; no ship or cargo damage; no injury or loss as normally understood by those terms; all that existed was a list of written complaints, most of which occurred on the same day, about offenses such as: failure to timely call the captain for maneuvering at night; failure to get timely permission for course changes; violation of minor parts of the captain’s night orders; failure to use the bridge computer properly to send out weather reports in a timely manner, etc. etc. When the Coast Guard investigating officer received notice of the logging and the firing, he contacted the mariner’s counsel to advise of the investigation, and specifically informed counsel that he intended to conduct the investigation under Part 4, and that the mariner WOULD NOT have the protection of not having his testimony during the investigation used against him. When counsel asked why the “or under part 4” language of 46 CFR sec. 5.101(b) did not apply to this investigation, the investigator stated that it was because there had been no actual “marine casualty” within the meaning of sec. 5.101(b). Why this rather minor distinction might make any sense from a public policy matter is completely obscure; nonetheless, this is a distinction that the Coast Guard does, apparently, still on occasion employ, and attorneys who represent mariners should continue to be vigilant for the Coast Guard’s application of this usage, even though it will, as a practical matter, arise in very few situations. In case you are interested in the outcome of the Oakland case, the mariner of course attended the investigation, testified openly and candidly about all aspects of the logging (with full knowledge that his testimony could be used against him), and presented several letters from prior captains testifying as to his skill and reliability. After hearing all of the evidence, the Coast Guard, apparently impressed by the mariner’s candor, elected not to proceed any further, and closed the matter.

Coast Guard Modifies Medical Waivers For Mariners With ICD’s

By Bill Hewig

Mariners with anti-tachycardia devices or implantable cardioverter defibrillators (“ICD’s”) have, since the September 15, 2008 promulgation of NVIC 04-08, had to face the near-impossible task of getting the Coast Guard NMC to issue them a medical waiver. Enclosure (3) of that NVIC, titled “Medical Conditions Subject to Further Review” stated, at condition 81, that having an ICD was “generally not waiverable”. The recent unhappy but prophetic experiences of two mariners with ICDs, one of whom had received previous waivers for over 20 years prior to issuance of the 2008 NVIC, have been the frequent topic of discussions at several recent MOPS annual luncheons, including in remarks made most recently by Randy O’Neill at this year’s luncheon on May 3.

But now comes news that the Coast Guard has modified the condition 81 standards for medical review considerably, such that if the mariner’s condition has recently improved within the limitations of certain medical criteria; or if the mariner’s condition has been longstanding with no deterioration, again subject to the application of certain medical criteria, the mariner now may be able to qualify for a waiver. Some new criteria, not previously considered by the Coast Guard, (such as stress test results) may now be submitted as evidence in favor of a waiver. The standards still appear to be stringent, but many of the factors which were argued by the two mariners discussed on May 3 as mitigating factors, and which were at the times of their hearings not accepted as such by the Coast Guard, now appear to be recognized. Unfortunately, the Commandant has held that regulation changes are not to be applied retroactively unless expressly so stated in the regulation itself, APP. DEC. 2646, at 5 (McDonald)(2004), so the changes will likely not help the two mariners noted above. The new ICD standards, published as Enclosure (7) to NVIC, can be accessed at www.uscg.mil/nmc

Pilot John Cota Sues Coast Guard Over Refusal To Return License

John T. Cota was the San Francisco Bay Pilot aboard the COSCO BUSAN on November 7, 2007 when it struck the San Francisco Oakland Bay Bridge and spilled 53,000 gallons of oil into the bay. Among the many and broad-reaching consequences of that disaster, Pilot Cota  entered into a Voluntary Deposit Agreement with the Coast Guard on December 21, 2007, under which he surrendered his license for an unspecified amount of time to avoid being served with a Coast Guard Complaint for ”medical incompetence”. Under the Deposit Agreement, the license would remain on deposit with the Coast Guard until Pilot Cota could present a report from a “third party independent licensed physician” stating that he is medically fit, in all respects, to perform his duties aboard ship. The Deposit Agreement mentioned no other barriers to the return of Pilot Cota’s license.

There followed a long and complicated sequence of communications between Pilot Cota, his physician and the Coast Guard, with a troubling number of instances in which the Coast Guard either replied after the 30-day time for appealing the decision being transmitted, or did not advise Pilot Cota of his appeal rights as required by the Coast Guard’s own regulations or, in some cases, simply failed to reply to calls or letters at all. In any event, it appears that by 2011, although Pilot Cota had by that time met all of the Coast Guard’s requirements (as stated in its Deposit Agreement) for showing physical and medical competency (including the certification of a “third party independent licensed physician”), and additionally, although the Coast Guard had expressly represented to Cota’s Congressman that medical certification was all that it would require of him for the return of his license, the Coast Guard still refused to return it. An internal Coast Guard memorandum (presumably secured under a FOIA request), revealed that the Coast Guard, at this point in the process that is, after Pilot Cota had complied with the medical requirements in the Deposit Agreement, now decided to deny Pilot Cota’s license based, not upon medical reasons as set forth in the Voluntary Deposit Agreement, but on a new and not previously disclosed reason – Pilot Cota’s alleged “failure to meet the Safety and Suitability requirements of 46 CFR sec. 10.211 (g).” This new reason for denying the return of the license was apparently premised on the fact that Pilot Cota had, in response to criminal charges filed against him in the aftermath of the grounding, plea bargained for 2 lesser charges of “criminal misdemeanor”  for oil pollution and, pursuant to that agreement, had served a term of 10 months in a federal prison.  

Pilot Cota filed his Complaint in the United States Court for the Northern District of California (San Francisco Div.) on February 8, 2013. It asserts jurisdiction against the United States, the Coast Guard, the Dept. of Homeland Security, and the Commandant,  based on 28 USC sec. 1331 (Federal Question), 28 USC sec. 2201 (Declaratory Judgment), and 5 USC sec. 702, (the Administrative Procedures Act) (Judicial Review of Final Agency Action). It contains 3 prayers for relief: (1) Judicial Review of the CG's final denial decision; (2) Violation of Fifth Amendment Due Process rights; and (3) Declaratory Relief.  The Coast Guard and other defendants have not yet filed their Answer. 

Pilot Cota’s  Complaint is available from the court’s electronic docket, and is worth reading, if you wish to see a catalogue of the United States Coast Guard at its very worst. We will watch the progress of this case closely and keep you informed of all developments which may be of interest to license defense attorneys.

NTSB Overturns Commandant On Imposition Of Excessive Sanctions

The appellant and mariner was the master of a tug-barge flotilla being loaded at an ammonium sulfide facility. The facility, which was in charge of the operation, overloaded a barge by about 1.5 feet over its marks during the night. The tug master asked the facility to offload the overloaded barge back up to its marks, but the facility refused until after another vessel came in first to be loaded. The tug master then shifted his overloaded barge to an adjacent slip at the same facility to await offloading. But before the facility was ready to offload, the barge was found to be flooding and, despite pumping, continued to settle steadily at the dock. To avoid a sinking at the dock, the tug master shifted the barge again and intentionally grounded it on a nearby bank where it continued to settle. During the next 2 days, the tug master attempted unsuccessfully to get additional pumps brought out so he could control flooding and shift his barge back to dock for offloading. Three days after the initial overloading, the tug master finally attempted to move the sinking barge back to the dock when it sank in transit and polluted the river with sulfides. Only after the sinking did the tug master contact the Coast Guard and submit a CG 2692.  

At the Coast Guard hearing, the Coast Guard Administrative Law Judge (ALJ) found the appellant tug master negligent for: failure to take timely action to stop flooding after the intentional grounding; for attempting to move the sinking barge back to the dock; and for failure to timely notify the Coast Guard. The ALJ noted that the recommended range of sanctions (46 CFR s. 5.569) provided for a 2-6 month suspension for negligence, but contained no guidance for violation of the reporting rule. With ample citations to the broad scope of his own discretion, and premising his actions on several vague instances of non-reporting, the ALJ then proceeded to revoke the tug master’s license. 

Not surprisingly, the Commandant affirmed the revocation, again with generous nods to the ALJ’s theoretically limitless discretion, and peppered by a list of horribles, i.e. all of the admittedly aggravating and probably inexcusable mistakes and miscues committed by the unhappy tug master. 

On further appeal, the NTSB concurred with the Commandant’s findings of negligence, but there are two points in the NTSB decision that are of interest to us. 

First, particularly because we have seen in recent times an increase in late/failure to report casualty claims, the NTSB agreed with the Commandant in rejecting the appellant’s argument that his untimely submission of the CG 2692 report was de minimis.  On this point, the NTSB noted: “Timely completion of required paperwork concerning a marine casualty is critical, especially in cases involving severe environmental repercussions.” NTSB Order No. EM-211, at 5. While a reading of this decision makes it clear that the Coast Guard made a good case that the appellant’s untimely initial notification could arguably have been a significant causal factor in the barge ultimately sinking and the resulting ammonium sulfate pollution (because the Coast Guard claimed that it could have supplied extra pumps had it been notified before the sinking), it is still hard to understand why the appellant’s failure to file the CG 2692 paperwork itself (as opposed to making the initial telephone or radio notification) could have made such a contribution, particularly when, as here, the late filing ofthe paperwork occurred after the Coast Guard had been notified and after it had in fact actually appeared on scene. Nonetheless, that is the language of the decision; and it is language and reasoning, bearing upon timely notification both oral and written, that license attorneys should keep in mind when advising mariners either before, during or after a marine casualty.

Of greater interest is what the NTSB did with the sanction. Noting that adding up the violations in the Coast Guard’s own sanctions table could get only a total suspension of 12 months (6 months for negligence; and two 3-month suspensions for violation of regulations), the NTSB concluded that a license revocation in these circumstances was excessive as it was beyond anything authorized by the regulations, and therefore arbitrary and capricious. It is also worthy of note that the NTSB felt compelled to point out that it was somewhat troubled by the fact that the mariner’s main defense had been totally ignored by both the ALJ and the Commandant. That defense was, namely, that it was entirely the fault of the facility that the barge had been overloaded in the first place and, in addition to that, the facility then refused repeated calls from the tug master to assist in unloading the barge before it sank.  

Comment And Assessment

This case is of interest because it supports 2 different arguments frequently made in license defense cases, often without hope of real success.

The first argument it supports is the argument that an overly-severe sanction should be reversed as being arbitrary and capricious. The sanction tables in the Coast Guard regulations are only guidelines, and the selection of a sanction is usually said to be discretionary with the ALJ. For this reason, we do not often see a case in which the imposition of a sanction more severe than suggested by the tables is said to be arbitrary and capricious.   This case now can be cited in support of that proposition.

The second argument relates to the weight to be given by the ALJ to evidence at the hearing of the contributory negligence of a third party. Attorneys who practice before the Coast Guard know how much its ALJs like to reiterate the principle that contributory negligence on the part of a third party will not be considered in the ALJ’s assessment of the negligence of the accused mariner. This NTSB decision will now be a useful tool for license defense attorneys to argue that egregious and contributory conduct on the part of a third party may indeed now properly be considered, at least for purposes of mitigating the sanction. 

For the above 2 reasons, we see this case as a potentially helpful decision for the future defense of mariners.

Two Recent Developments In Medical Waiver Application Proceedings

For a number of reasons, it is difficult to generalize about the likelihood for success in applying for medical waivers. First, because the over 200 new medical standards of review (for various medical conditions) vary so much, success has tended to be very much symptom-dependent. As a practical matter, that has meant that some categories of medical conditions have seen successful waiver applications, while others have not. Secondly, the National Maritime Center (“NMC”), the agency that reviews waiver requests in the first instance, sometimes cites to “standards” or to “policies” not articulated in NVIC 04-08 and, in doing so, frequently neglects to identify the source of such “standards” or “policies”. We will begin in this edition by examining two recent successful challenges to medical waiver denials that ended up in favor of the mariner. In a future edition we will examine a line of difficult cases in which denials have been upheld at several appellate levels.

(1) Coast Guard Commandant Overturns an NMC Denial and Grants Mariner a Medical Waiver

The office of the Coast Guard Commandant recently overturned the denial by the National Maritime Center (“NMC”) of a waiver request from a mariner with a condition of seizure disorder. In 2004-5, the Mariner, a licensed Chief Engineer, began to experience “auras” – usually described as a brief condition of ongoing consciousness, but without an ability to speak or react. In this case, the mariner was driving his car, and suddenly felt, for about 5-10 seconds, that things "paused" and that he was having a sense of “déjà vu” accompanied by a chilling sensation. The mariner was placed on medication (300/400mg Dilantin alternating daily), following which he continued to experience slightly less severe episodes once or twice a month. In response, his treating neurologist increased the Dilantin dosage slightly, and the auras then stopped completely. During all of his episodes, the mariner never lost consciousness and never suffered an actual debilitating seizure. 

When renewing his license in 2008, and after disclosing the aura/seizure episodes, the mariner applied for and was granted a medical waiver, appended with certain annual examination and reporting requirements. But then, when the mariner applied again for the renewal of his license in 2011, the NMC denied him a medical waiver request based on his history of seizure disorder starting in 2005, and also upon a “new NMC requirement” for 8 years or seizure-free condition. It is unknown, and it was unstated in the NMC denial letter, where exactly NMC’s 8-year requirement came from – it is in any event not set forth in medical condition 169 in NVIC 04-08 (history of seizure disorder). The mariner appealed the waiver denial decision, first by a request for reconsideration to NMC, and then upon denial there, by appeal directed to the Commandant. 

In a letter dated September6, 2012, the Commandant reviewed the history of the mariner’s conditions, and then took special note of the fact that, with the same history and the same showing (namely, the opinion of his treating neurologist that the mariner could return to work without limitations) this mariner had been granted a waiver in 2009 and furthermore, the mariner’s condition had not changed since that date. The Commandant then proceeded to tell the mariner:  “you were previously granted a waiver for the same condition in June 2009, thus establishing extenuating circumstances that warrant special consideration for a medical waiver” (emphasis added). The letter then proceeded to reverse the NMC, grant the requested waiver and impose some nominal additional reporting requirements upon the mariner. This Commandant letter decision is significant for 2 reasons: (1) it discussed, without upholding, the NMC’s attempt to impose a standard (8 years of seizure-free conduct) not articulated in NVIC 04-08; and (2) it based a reversal of NMC’s waiver denial upon the “extenuating circumstances” of a waiver grant prior to the institution of NVIC 04-08. As there may still conceivably be instances in which mariners were granted a waiver prior to NVIC 04-08, and then denied one after its effective date (September 2008), this decision could be argued as precedent for making a case that consideration should be given to the “extenuating circumstance” that an earlier waiver was granted prior to NVIC 04-08 and that no conditions have changed since the date of that earlier waiver grant.

(2) NMC Reverses Itself and Issues Medical Waiver For Use of Ritalin as Treatment for MS Fatigue Disorder

The mariner, an applicant for an original license, identified Ritalin as a current medication, and “brain or nerve disease” as a medical condition on his CG 719K (Medical Evaluation Report), accompanying his application. An accompanying medical report from a senior neurologist at Harvard Medical School stated that the applicant had, about 20 years previously, been told he had Multiple Sclerosis (MS), but seemed now to have been in complete remission for over 10 years under treatment with, among other drugs, Ritalin. That drug had been particularly helpful in treating the mariner’s spells of fatigue. The neurologist stated in his letter that the applicant was in sound normal physical and mental condition, that he could stand 4-hour watches on his feet, and that he met the physical agility requirements set forth in NVIC 04-08. The applicant was diagnosed with “MS fatigue disorder” in full remission with Ritalin and no side effects.  

The Coast Guard NMC, through a Dr. T. R. Stone, responded with a denial letter, requesting that the mariner have his neurologist “submit an explanation on how (his) condition is sufficiently controlled with documentation that (he) no longer requires the use of stimulant medications.”  There was no citation to any authority for this denial, so the mariner wisely called NMC. They would not put him through to Dr. Stone, but he did reach the “Medical Help Desk” which told him, rather unhelpfully, that according to NVIC 04-08, the use of a stimulant, regardless of how low a dosage, is a per se basis for denial of an application or a medical waiver. 

The mariner then referred to NVIC 04-08 (Encl. 4, p. 2 – under “Diet Aids and Stimulants) and found that, in fact, it said no such thing, but rather stated that use of the drugs would require a waiver if used within 48 hours of serving under a credential. With this information, the mariner called NMC back and persisted until this time he was put through to Dr. Laura Gillis. He told her: (a) NVIC 04-08 does not provide, as he was told, for a per se denial but rather seems to contemplate a waiver; and (b) the supplementary medical information NMC requested from his neurologist had, in fact, all been provided in the initial letter from his neurologist that he had sent in with his application. Later that day, the mariner received an email from Dr. Gillis stating that NMC had performed a “quality assurance review” of his file and, “after careful consideration of all the information”, NMC had determined that he had presented enough information to “warrant overturning our previous decision” and that the processing of the application would continue.  

The lesson from this episode is that mariners should not accept an initial denial decision from NMC without seeking out a thorough explanation of the basis for NMC’s denial, and testing it against NVIC 04-08, or whatever other authority NMC might cite.

Assault On The Citadel: Recent Hopeful Developments In Coast Guard Handling Of Medical Waivers Requests

We have been receiving word that the Coast Guard’s National Maritime Center (NMC) is trying to be more lenient (some might even say reasonable) in their reviewing of mariners’ medical records, and in their processing of medical waiver requests. For those readers who may not have been closely involved with this area of license defense work, a brief review of the background of this issue may be helpful.

As a direct result of the October 15, 2003 Staten Island Ferry collision in New York, the Coast Guard (following severe criticism of it) undertook a major overhaul of its medical review procedures, which resulted in the publication on September 15, 2008 of NVIC 04-08. This document, which is for guidance only and does not have the force of regulation, set forth new medical certification standards, and detailed hundreds of specific medical conditions “subject to further review”, and the recommended evaluation data for such further review. This comprehensive new regimen has been seen by many in the industry as a draconian over-reaction, but NVIC 04-08 is here to stay. In company with the introduction of the new procedures, the Coast Guard slowly shifted the initial stage of medical review away from the numerous Regional Exam Centers in ports around the country, and centralized the procedure in the hands of a medical staff at their “Center of Expertise” at NMC in Martinsburg, West Virginia. NMC also now has a full-time civilian attorney who travels around the country and handles most (but not yet all) of the ALJ hearings on behalf of the Coast Guard, replacing the well-remembered roles non-lawyer Coast Guard prosecutors, who were not infrequently given a little bit of “friendly assistance” at their hearings by sympathetic ALJs.

With this new written and procedural system now in place, we have begun to see in the past several years many more denials of mariner medical waivers, based on the much stricter medical conditions “subject to further review” found in NVIC 04-08. Many of these decisions have been harsh, and sometimes seemingly arbitrary. The best example of such treatment is probably  NMC’s blanket denial of a medical waiver for any mariner with an Implantable Cardioverter Defibrillator (ICD), a device similar to a pacemaker, often prescribed for patients with heart arrhythmia, or following an actual heart attack. Over the past year or two, we have received from the industry many reports of similarly arbitrary treatment for other medical conditions, such as, for example, sleep apnea. 

Now comes word from Jim Brown, our MOPS network attorney and colleague in Houston, of a significant victory for a Houston pilot in a medical waiver denial appeal. Jim reports that NMC denied the original waiver request, and that the denial was, not unexpectedly, upheld upon application for reconsideration. The denial was then appealed to the Commandant, as set forth for a “Part 10” appeal, under 46 CFR sec. 10.237 (applying to administrative appeals of medical waiver denials). Uncharacteristically, the Commandant came back with a very brief letter, overturning the denial below and granting the waiver. We wish that we could provide more insight into the reasons for this victory, but they are not apparent in the letter. Nonetheless, the news for mariners is still good.

From another source we have also just learned of a possible crack in the armor of arbitrariness relating, not to the use of an ICD itself, but to the underlying medical condition. This news comes directly from a mariner who had not had a heart attack, but has had a history of cardiomyopathy (heart disease, consisting of weak, irregular or damaged heart chambers) and the most damaging symptom of that disease, a low left ventricular ejection fracture (measure of pumping strength of that heart chamber) of 25%. Normal LVEF is considered to be around 55%, and the Coast Guard’s “cut off” for cardiomyopathy has been considered to be, until now at least, 40%. Here again, there was an initial waiver denial, but upon reconsideration, NMC reversed itself and granted the waiver, apparently because of strong showings by the mariner on a subsequent stress test. This decision is particularly significant because previously the Coast Guard had placed determinative reliance upon its LVEF “cut off” of 40%. Previously, a mariner with an LVEF of less than that 40% “cut off” had very little chance of being granted a waiver, especially if the LVEF was as low as 25%.

These two decisions of course must be seen as representing, if anything, only the most modest beginning of change. But we have also been told privately by the NMC attorney who travels around the country to represent the Coast Guard at their ALJ hearings, that NMC is attempting to be more flexible in their handling of medical waiver requests, particularly when the issue is a “close” one; and perhaps this, in company with the two discussed decisions, will herald for mariners the promise of fairer and more individualized treatment of medical reviews at the hands of the NMC. 

Just How Random Do You Have To Be, Anyway? (The Vice Commandant Remands A GC Drug Complaint)

USCG v. GREEN

App. Dec. 2697 (Nov. 14, 2011) 

Scientifically random, apparently. This mariner reported to his place of employment on July 5, 2010, and was notified there of his selection for a random drug test. He reported to the collection site, gave his sample, and tested positive for marijuana metabolites. The Coast Guard filed a Complaint against him on August 10, 2010 and the Respondent, acting without the advice of counsel, filled out the form “Answer” provided by the Coast Guard, and checked off the box admitting the paragraph in the Complaint alleging failure of a “random” drug test. (He did deny other factual allegations.) Later, he moved for dismissal saying the Coast Guard’s case lacked probative, substantial and reliable evidence, the standard of review under Coast Guard regulations. The ALJ held the motion in abeyance and went forward with the administrative hearing, which convened on December 9, 2010. The respondent appeared pro se. Following the hearing, the ALJ denied the mariner’s motion to dismiss and found against him on the underlying drug use charge. The mariner appealed, claiming that the Coast Guard failed to establish a prima facie use of drug use. 

On appeal the Vice Commandant remanded the case for further proceedings. Noting that the Coast Guard’s random drug test regulations, at 46 CFR sec. 16.210, require that: “the selection of crewmembers for random drug testing must be made by a scientifically valid method”; the Vice Commandant then observed that because of the fact that the pro se mariner had admitted taking a “random drug test”, the record below was not well developed on the issue of randomness, even though the ALJ had expressly questioned the Coast Guard about its absence of proof or randomness. Observing that, although the mariner did seem to have “admitted” taking a random drug test in his answering of the Coast Guard’s form Answer, the Vice Commandant felt nonetheless bound to “make reasonable allowances to protect a pro se litigant”, and she then proceeded to find that that the mariner had adequately challenged the sufficiency of the Coast Guard’s proof of its case by filing a motion to dismiss, in which the mariner had stated: “there was no probable cause for a random drug test ”.  Accordingly, the case was remanded to the ALJ for further clarification on the issue of randomness.   

This case points out an important and often overlooked feature of the Coast Guard’s drug testing regulations: if a mariner has been called for a random drug test, the Coast Guard’s proof of its case necessarily requires the showing of the scientific validity of the “randomness” by which the mariner was selected.

 

USCG Marine Casualty Investigations And The Role Of The “Party In Interest”

The United States Coast Guard’s (“USCG”) statutory mandate to investigate marine casualties is well-known throughout the maritime industry.  46 U.S.C. § 6301.  What may be less known is the statutory right of a “party in interest” to participate in the USCG’s investigation.  46 U.S.C. § 6303.  

Participation in the USCG’s investigation is particularly crucial in circumstances in which another vessel interest is involved because a party in interest will have an opportunity to be present when the other vessel’s Master and crew are interviewed by the USCG, to request that other witnesses be interviewed and to be present when the other vessel is inspected by the USCG.  When formal hearings are held by the USCG, a party in interest will have the additional rights to cross-examine witnesses under oath and to present witnesses on its behalf.   

Who is a party in interest?  

The term “party in interest” is defined by federal statute as:  (a) a vessel owner; (b) any holder of a license or certificate of registry; (c) any holder of a merchant mariner’s document; (d) any other person whose conduct is under investigation; and (e) any other party in interest.  46 U.S.C. § 6303.  This has been supplemented by regulation to include any person who the USCG finds to have a “direct interest” in the investigation, a potentially wide-ranging group.  46 C.F.R. § 4.03-10.  

When does the USCG designate parties in interest?  

In order to participate fully in the investigation, a party must be designated by the USCG as a party in interest.  

By way of background, the USCG has developed four levels of investigation – the “preliminary investigation,” the “data collection,” the “informal investigation,” and the “formal investigation.”

The level of investigation depends on the nature and scope of the casualty and runs the gamut from a telephone inquiry up to a full-blown hearing in which witnesses are called to testify under oath.  Although the level of investigation is left to the discretion of the investigating officer, the USCG has prepared internal guidelines to consider in making that determination.  These guidelines consider factors such as whether the casualty has resulted in (a) death or serious personal injury, (b) property damage exceeding certain amounts, (c) a condition affecting the seaworthiness of the vessel, and (d) a discharge of oil or hazardous cargoes into the water.

A party in interest could theoretically be involved at any level of investigation but, typically, will not become involved until the informal or formal investigation level.  If the USCG has not made a party in interest designation, the party involved must take the initiative and request such a designation.

Why seek party in interest status?

Without being designated a party in interest, a party involved in the casualty cannot participate fully in the USCG investigation.  

Moreover, the importance of participating in a marine casualty investigation, particularly at the informal and formal levels, cannot be overstated.  Depending on the type of casualty involved, participation in an informal investigation would include the right to be present during interviews of witnesses (such as the Master and crew of the other vessel involved in the casualty) to be present during the USCG’s inspection of the vessel(s) involved, to present evidence to the USCG, and to request that certain witnesses be interviewed.  The right to be present during interviews of the crew members from the other vessel may also extend to asking them questions concerning the casualty.  

The opportunity to hear responses to questions from an opposing vessel’s crew days or perhaps even hours after a casualty is unique and should be seized.  Inevitably, witnesses’ memories fade with the passage of time, or by the time formal legal proceedings are underway months or years later, the witnesses are no longer available to provide testimony.  Therefore, the appropriate time to seek party in interest status is early on in the USCG investigation.

Participation in a formal investigation carries additional rights during the hearing stage to cross-examine witnesses called by the USCG or other parties in interest and to call witnesses to testify on one’s behalf.  Here again, access to testimony from witnesses from the other vessel, for example, will be of great assistance in developing how the casualty occurred for use in any future litigation.

There is also the opportunity to present evidence in support of the party in interest’s version of how the casualty occurred.  In the event there is a potential for civil or criminal penalties resulting from the investigation, an opportunity to present favorable evidence should not be lost.

Conclusion

A USCG marine casualty investigation can provide a wealth of information for those parties involved in the casualty.  As a party in interest, the scope of that information can be expanded greatly by early and full participation in the investigation.  For most casualties, the opportunity to participate fully in the investigation should be seized at the earliest opportunity. 

August 2011
© Lyons & Flood, LLP

NTSB Finds Pilot Fatigue And Lack Of Coordination At Fault In Sabine River Collision

On January 23, 2010, the 810 ft. oil tanker EAGLE OTOME was proceeding inbound in the Neches-Sabine canal at Port Arthur, Texas. The channel turned to the right at a location called Missouri Bend, and dead ahead of EAGLE OTOME, on the far bank but before the turn, was the 596 ft. bulk carrier GULL ARROW berthed port side to and discharging cargo. Farther around the bend and heading outbound for a meeting with EAGLE OTOME was the tug DIXIE VENGEANCE, pushing two barges, the lead barge named KIRBY 30406. 

EAGLE OTOME had two pilots aboard which the NTSB reported was required by local waterway protocol. As the vessel approached Missouri Bend, one pilot was conning the ship and the other was making a radio call. The pilot who was conning the ship was, according to NTSB findings, fatigued as a result of untreated sleep apnea and his work schedule. With respect to the other pilot, making a radio call at a critical turn, again according to the NTSB, violated the team performance principles of the pilots’ bridge resources management training. Through a sequence of events not completely clear from the report, EAGLE OTOME could not negotiate the turn to starboard, either because of unexplained sheering of its bow to port, or because the pilot doing the conning began the turn too late, or because the vessel’s bow was caught in the current. In any event, instead of completing the turn to starboard and meeting the approaching tug and tow port to port, EAGLE OTOME’s bow was set to port, causing it first to collide with the starboard side of the moored GULLARROW, and secondly, to cut across the bow of the oncomingKIRBY 30406 and DIXIE VENGEANCE. Just after EAGLE OTOME’s bow struck GULL ARROW’s starboard side, KIRBY 30406 struck EAGLE OTOME in its starboard bow, holing it at the waterline and resulting is a sizeable discharge of crude oil into the river.  

Initially it seems incredible that such a catastrophic three-way collision could occur in broad daylight with no unfavorable weather conditions reported and with two pilots aboard the precipitating ship. The NTSB naturally faulted EAGLE OTOME’s two pilots for a number of shortcomings: (1) The first pilot’s radio call was made at a critical turning point such that it distracted from his concentration on the ship’s turning evolution; (2) failure of both pilots to apply the “team performance aspects of bridge resource management concepts” (concepts not explained in report); (3) failure of one of the pilots to alert DIXIE VENTURE of the sheering problem;  (4) the first pilot’s failure to correct the sheering problem resulting in EAGLE OTOME’s inability to make the turn; (5) fatigue on the part of the first pilot, from untreated sleep apnea and work load leading to his inability to stop EAGLE OTOME’s sheering; and (6) the absence of effective hours of service rules on the part of the pilot association.

The fact that the NTSB attributed untreated sleep apnea as a contributing cause to this collision, without any details or specifics of the reasons for its conclusion, raises significant concerns for mariners and attorneys defending them. The Coast Guard’s recent policy decision to clamp down harder on medical conditions requiring waivers, a decision believed to have originated from political heat that the Coast Guard had to take after high visibility medical-related accidents in New York Harbor and San Francisco Bay, may now find in this NTSB report a justification to cast the net over an even broader population of mariners. By not stating the specific facts upon which it based its “untreated sleep apnea” conclusions, the NTSB does no service to the maritime community with this report. We are left with no way to determine how the claimed condition affected the pilot’s performance, and how these effects might be mitigated or corrected short of a waiver denial. The doors are open for the Coast Guard to make the same class of across-the-board blanket waiver denials it has been doing recently for other medical conditions, particularly in the case of mariners who have a surgically implantedICD.

Overview Of D.O.T. Drug And Alcohol Testing Regulations And Helpful Commandant And ALJ Rulings

A lot of justifiable confusion exists about the regulations governing drug and alcohol testing for mariners and transportation workers. This confusion exists even among ALJs, as has been noted by the Commandant in one recent Appeal Decision (App. Dec. 2692 (CHRISTIAN) (2011)). Accordingly, for those who may be called upon from time to time to defend mariners against Coast Guard drug or alcohol charges, a brief overview may be of assistance. 

Part of the confusion, as noted by the Commandant, is quite possibly due to the fact that the regulations for drug testing versus alcohol testing are not parallel. 

The regulations that relate to drug and alcohol testing of mariners are: 33 CFR Part 95; 46 CFR Part 16;  49 CFR Part 40; and 46 CFR Part 4. Here is what they cover:

  1. 33 CFR Part 95:  Mariners operating vessels under the influence of alcohol.
  2. 46 CFR Part 16:  Random drug testing for Mariners, but not alcohol testing.
  3. 49 CFR Part 40:   Drug Testing for mariners; alcohol testing requirements not applicable to mariners. 
  4. 46 CFR Part 4:  Alcohol testing requirements for mariners.  App. Dec. 2692 (CHRISTIAN) (2011) at 4-5.

 “Alcohol” and “dangerous drugs” are defined separately in 46 CFR Part 16. The terms are not interchangeable and the meaning of “dangerous drug” does not include alcohol. 46 CFR s. 16.105; App Dec.2692 (CHRISTIAN) (2011) at 4. Neither 46 CFR sec. 4.06 nor 33 CFR Part 95 mandate procedures for selection of mariners for random alcohol testing. There are no regulations that govern selection of mariners for random alcohol testing. App. Dec. 2692 (CHRISTIAN) (2011) at 5. 46 CFR Part 16 contains regulations governing chemical testing for certainmariners for dangerous drugs. Section 16.201(a) adopts by reference the separate D.O.T. procedures for transportation workplace drug and alcohol testing, which are codified at 49 CFR Part 40. USCG v. John C, RUSSELL, D&O (Jan. 30 2008) (McElligott, ALJ).

In general, Coast Guard drug testing regulations require maritime employers to establish programs for chemical testing for dangerous drugs on a random basis for all mariners on inspected vessels who occupy positions that directly affect the safe navigation and operation of a vessel and who, in an emergency, are assigned to tasks critical to the safety of the vessel and its passengers and crew. See,  46 CFR sec. 16.230 (a); see also, Transportation Institute v. United States Coast Guard, 727 F. Supp. 648, 655-8 (D. D.C. 1989) (enjoining the Coast Guard from implementing the part of the drug testing regulations that require random testing of all crew members).

Refusal to Submit to a Drug Test

46 CFR Part 16 defines “refusal to submit” to a drug test by a mariner in three ways: (1) failure to appear for any test (except pre-employment test), within a reasonable time, after directed to do so by the employer; (2) failure to remain at the site until the testing process is complete;  and (3) failure to provide a urine specimen. 46 CFR sec. 16.105 (incorporating 49 CFR sec. 40.191(a)).

A mariner’s refusal to submit to a drug or alcohol testing regulation constitutes Violation of a Regulation. 46 CFR sec. 5.569(d);   United States Coast Guard v. John C. RUSSELL, D & O (Jan. 30 2008) at 8 (McElligott, ALJ). 

A mariner’s refusal to submit to a drug test ordered by an employer is also Misconduct. App. Dec. 2615 (DALE) (2000).

Note, however, that a mariner who leaves the testing site before the testing process commences is NOT deemed to have refused a test. 49 CFR sec. 40.191(a) (2); App. Dec. 2685 (MATT) (2010) at 6-7. This includes a mariner who does not provide a urine specimen because he or she leaves the site before the testing process commenced. Again, such conduct is NOT deemed a refusal to test. United States Coast Guard v. John C, RUSSELL, D &O (Jan. 30 2008) at 8 (McElligott, ALJ).

Commandant Appeal Decisions have stressed that “(i)n the interest of justice and the integrity of the entire drug testing system, it is important that the procedures in 49 CFR Part 40 be followed to maintain the drug testing system.” App. Dec. 2688 (HENSLEY) (2010).

Fatal Technical Flaws 

The HENSLEY decision gives us a good and useful synopsis of the technical deficiencies which have been found sufficient to defeat a Coast Guard drug use charge, as well as those which have not. The legal theory at work is violation of a mariner’s due process rights. The Commandant has found the following technical deficiencies to have been sufficiently fatal to defeat a drug charge against a mariner:

Unqualified collectors, without required training; failure to positively identify mariner; failure to collect Social Security numbers; improperly requiring mariner to certify samples before taken; improper certification of signature on control form. App. Dec. 2631 (SENGEL);
False testimony by lab’s director about credentials; misinformation given to mariner about right to re-test split sample; premature disposal of sample precluding further testing. App. Dec. 2621 (PERIMAN);
Improperly labeling specimens; leaving specimens unattended while pursuing mariner who failed to sign form; unresolved and conflicting testimony about chain of custody. App. Dec. 2614 (WALLENSTEIN);
Mariner leaving testing facility prior to commencement of test. App. Dec. 2685 (MATT).

Non-Fatal Technical Flaws 

 The following technical deficiencies were found to be minor in nature so as not to defeat the Coast Guard’s charge of drug use against the mariner: 

Collector’s failure to prevent other people from entering restroom during testing; lack of continual possession of custody control form. App. Dec. 2546 (SWEENEY); Collector’s failure to have mariner initial specimen label; failure to permit mariner to choose his specimen jar. App. Dec. 2541 (RAYMOND) aff’d sub nom NTSB Order No. EM-176 (1994); Mariner failure to wash hands prior to providing sample; collector’s failure to record specimen temperature. App. Dec. 2537 (CHATHAM) aff’d sub nom  NTSB Order No. EM-174 (1994);  App. Dec. 2522 (JENKINS).  

Conclusion 

Good general discussions of drug regulations and cases can be found in the following: App. Dec. 2692 (CHRISTIAN); App. Dec. 2688 (HENSLEY) and USCG v. John C. RUSSELL, D & O (Jan. 30, 2008) (McElligott, ALJ).

The Coast Guard's Black Swan Drug Case

USCG v. MICHAEL R. WILSON
Decision & Order Dated Dec. 12, 2007
USCG Docket No. CG S & R 07-0221
CG Case No. 2909338

It is frequently said that you cannot win a Coast Guard drug case, but here is an older (2007) ALJ Decision and Order which we recently came across in which the mariner, representing himself, did just that, and did it well. Although of no precedential value, and although it must, as you will see, be limited to its rather unique facts, the case is nonetheless of some interest to us, if for no other reason than to show that every so often, the Coast Guard does not prevail on what they no doubt thought was an airtight case.  Here the mariner’s feat would seem to be even larger than life because the mariner succeeded in doing something thought almost to be impossible – he defeated the Coast Guard’s prima facie case of dangerous drug use entirely by the use of character evidence. 

The Respondent license holder was 58 years old, and had worked 40 years as a fishing guide in Bedford County Virginia, where he had spent his entire life. On March 22, 2007, he took a random drug screening test in Roanoke, Virginia, and tested positive for cocaine metabolites. In fact, the test results came back at ten times the cut-off level for the metabolites. 

At the ALJ hearing, the Coast Guard established its prima facie case of dangerous drug use with all the usual evidence that showed that the chain of custody was intact, that all testing, collecting, and handling rules and procedures had been followed, and that the Medical Review Officer (MRO) had interviewed the mariner and had found no medically valid explanation for the chemical test results. True to form, the ALJ naturally found the testimony of the USCG toxicologist and MRO credible. To add to the mariner’s burden, there was evidence that the split sample also came back positive for cocaine metabolites by about the same magnitude. 

The Respondent, representing himself, denied cocaine use and testified that he had no idea how he could have tested positive. Continuing on in his own defense, he testified that he had never had any prior drug or alcohol charge, and had never had a boating or automobile accident. So far, this sounds like your average drug case, with the prosecution and defense cases unfolding very predictably, like they seem to do so many times, with the mariner seeming to be firmly planted on the slippery slope and headed rapidly for license revocation. But then, one can almost read in the decision that point where the ALJ’s mind begins to turn. It starts when the Respondent testifies that he had been a member of a local church for 42 years, did not smoke or use alcohol and was a solid member of the community with children and grandchildren.  Then there followed character evidence from two witnesses that the ALJ found particularly persuasive: the Respondent’s own physician; and a long time friend of the Respondent and, coincidentally, also a long time member of the Virginia legislature.

The Respondent’s physician testified, as many family doctors do in such cases, that he did not believe that the Respondent was a drug user, and that he did treat drug and alcohol abusers and that the Respondent just did not fit the profile. So far, rather standard stuff. But then came this: The Respondent had had one heart attack, and was at high risk for another. He had a strong family history of diabetes, hypertension and coronary disease. His physician said that if the Respondent had in fact taken the dose of cocaine that the Coast Guard claimed, it could have caused heart spasms, further restricted arterial blood flow, and brought on an increased risk of death. Moreover, the Respondent was fully aware of this dire medical prognosis, and accordingly was not likely to risk such extreme consequences. 

Then came the long-standing member of the Virginia House of Delegates, who had known the Respondent for 45 years, and testified that he was “truthful and law abiding”. Apparently the ALJ loved all of this; in his written D & O he went out of his way to observe that the Coast Guard’s accusations of drug use did not appear appropriate because he “could not help but compare Respondent with an older version of Andy Griffith in Mayberry.”

Evaluation

This case is obviously an anomaly and is to be limited to its admittedly unusual facts, unless of course you are being asked to represent Andy of Mayberry against cocaine use charges. Nonetheless, it may still be of some potential assistance to a MOPS attorney who may be called upon to defend a mariner against a drug charge. First, and most interestingly, the ALJ found all witnesses on both sides to be credible, which is in itself unusual for an ALJ. From this an attorney representing a mariner can argue that even if the ALJ finds the Coast Guard’s witnesses to be credible, as ALJ’s almost always do in a drug case, that fact does not necessarily preclude a finding for the Respondent as was done in this case. Secondly, and possibly of more future value for license defenses, this case presents an example of recognition by an ALJ, in at least one instance, in which the Coast Guard’s airtight prima facie case of drug use, unchallenged by any competing technical, toxicological or medical evidence, and unopposed by any explanation or excuse whatsoever, (other than “I don’t know why I tested positive”), did not prevail. From this fact, it is possible to argue that this case is a recognition by at least one Coast Guard ALJ that there are just going to be a certain number of drug cases in which the proof of chemistry was not reliable and  led to a mistaken and unjust conclusion, even though there was no explanation for such mistake entered upon the record.

As a post script, I would note with irony the likelihood that this mariner, with his admitted catalog of severe physical limitations, all of which formed an important part of his successful defenses to the Coast Guard’s drug dragnet, must now look forward to the likelihood of being hauled back before a Coast Guard ALJ to answer charges of medical waiver denial, based upon all the same medical conditions upon which he so successfully crafted his defenses to the drug charges.          

Hail To The Chief!

BRIEFLY NOTED: USCG v. SALAMON

(APP. DEC. 2686) (May 22, 2010)

In the “What’s up with this case?” department, we could not help but to note this very curious reversal by the Vice Commandant of an ALJ license decision by none other than that lately very well-known Chief Administrative Law Judge, Joseph N. Ingolia. In that case, the CALJ bent over backwards to dismiss misconduct charges against a mariner without a hearing on the subject, and even without a motion from the mariner. After being charged with misconduct for not reporting a marine incident according to Coast Guard regulations, the Respondent executed a “Good Faith Deposit” of his license in November 2007; on March 10, 2008, the Coast Guard filed its complaint; on March 24, 2008, four months after making his deposit, the Coast Guard returned his license to the mariner. On May 2, 2008, the CALJ dismissed the complaint after finding, sua sponte, that the Coast Guard failed to follow regulations. Even more curiously, the CALJ ordered that the mariner’s record be expunged of any evidence of the casualty or of the four-month suspension.  Naturally the Coast Guard appealed this decision, probably after recovering from an extreme case of shock. 

To add the comic-opera flavor of this whole affair, the Coast Guard’s failure to identify the issues it wished to appeal in its appellate brief drew a noteworthy rebuke (albeit in a footnote) from the Commandant. The Respondent did not even appear in the appeal. The focal issue seems to have been whether the voluntary deposit agreement between the Respondent and the Coast Guard was, as stated by the CALJ in his dismissal order, a violation of law, due process or public policy, by virtue of the fact that it was tendered by the Coast Guard and executed by the Respondent BEFORE the complaint was filed. The Commandant stated that, while it did not condone the procedure (absent enabling regulations by the Coast Guard which did not at that time exist), it could find no prejudice to the Respondent’s rights because he got the deal he bargained for – agreement by the Coast Guard in advance of the complaint to seek no greater suspension penalty than the suspension amount stipulated in the deposit agreement. The CALJ’s justification for sua sponte dismissal  was that the process embarked upon by the Coast Guard, by which much of the action occurred before the CALJ’s involvement because it occurred before the filing of the complaint, prevented him from ensuring that the Respondent “received full due process”. The Commandant disagreed, finding error. But more significantly, the Commandant also found that the CALJ abused his discretion by ordering the Respondent’s record expunged, because that sanction found no express support in statute or regulation. This decision stands out as a rather unusual rebuke of the CALJ widely thought to be one of the Coast Guard’s leading “home team judges”. 

Evaluation

This decision is certainly fun to read, considering the possibly ignoble role that the CALJ has been accused of playing in the 2007 ALJ scandal. Apart from that, we can only surmise that there was something going on beneath the surface in this case, not apparent to the reader, but making an obvious determination on the outcome, that compelled CALJ Joseph Ingolia to cast aside his well-earned reputation as a stalwart “company man” and instead to champion the rights of a mariner. Fortunately for his hard-won reputation, the Commandant intervened to save the CALJ from himself.

Reefer Madness: Scandal-Triggering Pot Case Finally Snuffed

CHRISTOPHER DRESSER v. USCG, JOSEPH N. INGOLIA,
MEBA MEDICAL BENEFITS, et. al.
Fifth Circuit, No. 10-30301 (December 22, 2010).

Speaking of CALJ Joseph Ingolia, the Fifth Circuit handed down a decision in December affirming the district court’s dismissal, for lack of subject matter jurisdiction, of this case that has been up and down thefederal appellate staircase a number of times since its 2007 inception triggered the ALJ scandal referred to in the previous comments. (For prior 5th Circuit decision, see, 307 Fed. Appx. 834, 2009 WL 139662 (5th Cir.2009)(not selected for publication in federal reporter). 

The case began when Dresser, a licensed marine engineer, tested positive for marijuana, following which ALJ Archie Boggs revoked his license after an administrative hearing. The Commandant affirmed the dismissal but the NTSB remanded for “appearances of impropriety” on the part of ALJ Boggs. The case was then re-assigned to ALJ Brudzinski, whose discussions with defendants Kenneth Wilson and Alyssa Paladino formed part of the broad spectrum of allegations of ex parte misconduct leveled against the Coast Guard ALJ system by now retired ALJ Jeffie J. Massey. ALJ Brudzinski, of course, followed the script and revoked the license as well. Dresser then simultaneously appealed the second decision to the Commandant and brought a suit in district court, claiming due process violations. A number of both procedural and substantive issues were raised and disposed of in the several prior district and appeals court decisions, and they are not of concern to us here; the one issue that remained to be resolved here is however one of significance to MOPS attorneys: Where must an appeal of a Commandant Appeal Decision be brought? 

Previously, there was a division of the circuits on the issue, with at least one 5th circuit (unpublished) decision holding that the regulatory language authorizing an appeal to the NTSB was permissive not mandatory. (That decision is Dominic McDonald V. U.S. Coast Guard, S.D. Tex., Memorandum Opinion dated June 30, 2005, Johnson, M.J. - a case which was briefed and successfully argued by MOPS network attorney Keith Letourneau of Houston.) For contrary opinions, stating that Commandant Appeal Decisions must be appealed first to the NTSB, and then into the appeals court,  see, e.g., Kinneary v. City of New York, 358 F. Supp. 356, 360-1 (SDNY 2005); Bruch v. USCG, 736 F. Supp. 634-7 (ED Pa. 1990), Blackwell v. United States, 586 F. Supp. 947-9 (SD Fla. 1984), and most recently, Hocking v. USCG, (D. Mass. April 1, 2011) (Casper J.)         

The 5th circuit found that there was no subject matter jurisdiction to hear either Dresser’s APA appeal of the adverse ALJ decision, or his Bivens (constitutional) claims.  In reviewing favorably the various decisions from courts in other circuits, the 5th circuit panel affirmed the decision of the district court below by concluding, in company with the other courts noted above, that the exclusive avenue for review of an adverse ALJ decision for a mariner will be to go, first to the Commandant, then to the NTSB and finally into the federal court of appeals. Dresser’s appeal from the Commandant’s decision into district court was characterized by the 5th circuit as “an attempt to circumvent the channeled path for review.”  (Pun intended?) The 5th circuit also affirmed the district court’s dismissal of Dresser’s Bivens claims as “inescapably intertwined with his APA claims.”

Evaluation

The 5th circuit has now joined district courts in the 1st, 2nd, and 3rd circuits, among others, in mandating that an appeal of a Commandant Appeal Decision must pass first through the NTSB, and then into the federal court of appeals, rather than a district court.  And, as the only appeals court we are aware of that has spoken on the subject, this 5th circuit decision speaks with significant authority and has put any lingering debate on the issue soundly to rest.  

What does this mean for mariners and MOPS attorneys?  Here are some thoughts on the possible consequences of this required procedure:

  1. In the end, it will not result in a great deal of lost time in the appellate process. NTSB decisions are relatively quick. A recent survey we conducted in August 2010 showed that NTSB decisions over the past 3 years are typically handed down within about 6 months;
  2. Going into the Court of Appeals will most certainly mean that mariners and their attorneys will be less likely to be able to open the record for further evidence as they could do, at least in theory, when proceeding before a district court. This may mean taking extra precautions to ensure that all possible evidence about all possible claims is entered upon the record of the ALJ proceeding. And if evidence is objected to, ensure that a thorough offer of proof is entered upon the record; 
  3. Finally, mariners and attorneys should note that the time to file an appeal to the NTSB is short – only 10 days after service of the Commandant’s decision, as opposed to the more leisurely 30 days we are used to for both ALJ and federal court appeals. See,  49 CFR sec. 825.5(a); and

The good news, if there is any at all, may be that in our experience, we have found the NTSB more independent and therefore more ready to uphold the rights of mariners and to bring a generally more balanced and less entrenched view of the whole administrative process than one tends to get from the Commandant, whose interest in sustaining his or her I.O. prosecutors somehow so frequently seems to be riding just beneath the surface. (Pun intended.)    

From The Desk of Judge Jeffie J. Massey

Ladies & Gentlemen:

Just a short note to give you my heartfelt thanks for the warm reception that those of youin attendance gave me in New York  at the Annual MOPS Luncheon, and for those of you in the MOPS Legal Network who did not attend, here is a brief summary of my presentation.

I become very passionate when speaking about subjects that are important to me—and there is no subject more important to me than stopping the injustices that are occurring on a daily basis, adversely affecting our nation's mariners and their employers.
 
After having a chance to speak with a number of you individually, it appears that there was a time when the Suspension & Revocation Program at the Coast Guard was not plagued by the atmosphere that I found myself in the middle of when I became a Coast Guard ALJ in July 2004.  Regardless of what caused the shift, it remains the responsibility of every advocate to challenge  a system that has developed ingrained bias wherever it is encountered (in a hearing room or on a vessel).
 
I appreciate the fact that some of my ideas sound a bit extreme to some of you, but please remember that there was a time—not all that long ago—when the idea of affirmatively informing a person being questioned for a crime of his or her right to counsel and right to remain silent was called radical and unnecessary.

As we briefly discussed at the luncheon, the demands made on Coast Guard Personnel and the parameters of their involvement in marine safety, homeland security, the war on drugs, and environmental issues is evolving.   While some USCG personnel remain well-intentioned when they are dealing with the public (particularly mariners), others are over-zealous and routinely blur lines that result in the violation of both civil and criminal procedures and regulations. Once these lines are crossed, it is all too easy for the USCG to argue that "policy" demands the lines be crossed on a routine basis.  Inherent in this process is the fact that some offending Coast Guard personnel claim they have rights to take actions when, in fact, no such rights exist.
 
I have always had a tremendous amount of respect for the law, believing that "processes" (statutory and otherwise) serve a necessary purpose in a civilized society.  However, a constant factor in these "processes" is the individual's right to assert his or her views, and challenge those who abuse or twist the rules in an attempt to unlawfully shift favor to one party over the other.   Equally important is a neutral decision-maker who decides the factual and legal issues involved in these challenges.
 
Twenty years of litigation experience and ten years presiding over hundreds of cases for three different federal agencies has solidified my respect for the law and these "processes."  Being caught up in the middle of a scandalized system and being ordered to violate the law when I performed my decision making functions has punctuated the sad truth that justice is a fragile thing.  Once an injustice occurs, it requires a vigilant advocate to push the scales of justice back in balance.
 
I suppose some of you are thinking that I am preaching to the choir.  I know that each of you know what a fragile thing justice is—I only want to encourage you to be aware of assaults upon our processes, even in places you might not expect to encounter them.
 
Please do the honor of calling upon me if I can be of assistance to you or your clients.
 
Judge Jeffie J. Massey
505-400-7673
jeffiej@msn.com

Properly Preserving Claims Of Bias Before A Coast Guard ALJ

In Judge Jeffie Massey’s address at the 2010 MOPS luncheon in New York on May 7, she recommended in no uncertain terms that any attorney who draws a Coast Guard license action before Administrative Law Judges Joseph Ingolia, Walter Brudzinski, or the recently-appointed George Jordan should prepare and file papers to properly perfect a claim of bias against the judge.

The proper procedure for doing so is to prepare an affidavit, setting forth the exact facts and reasons justifying the charge, and to file it with the agency, and that the agency shall then determine the matter as a part of the record of the case itself. See 5 USC sec. 556(b) (Administrative Procedures Act.) Judge Massey’s Affidavit in the Christopher Dresser case contains more than ample testimony showing bias on the part of all three judges, and can be attached as an exhibit to your affidavit. We can provide you with a copy of Judge Massey’s affidavit should you require it. Most of all, remember that it is essential that any claim of bias be asserted as soon as it becomes known. Failure to raise the issue in a timely fashion will be deemed a waiver of the right to raise the claim at a later stage of the proceeding, especially at the appellate level. See, Marcus v. Director, Office of Workers Compensation Programs, US Dept. of Labor, 548 F.2d, 1044, 1050 (D.C. App. 1976).

Reports Of Coast Guard ALJ Appointment Raise Widespread Concern

The United States Coast Guard’s “Homeport” website reports that George J. Jordan has been appointed to the position of Coast Guard Administrative Law Judge. The report of this appointment has raised grave concerns among a number of participants and observers in the marine industry.

It will be recalled that, according to now retired Coast Guard ALJ Jeffie J. Massey, George Jordan was among those present at a meeting in New Orleans on February 24, 2005, and as a result of that Jordan ended up a named defendant in the federal law suit filed by James M. Elsik (Elsik v. Joseph N. Ingolia et al, USDC E. Dist. La, CA No 07-1536).  Central among the allegations in the Elsikcomplaint was one that Chief Administrative Law Judge Joseph N. Ingolia arranged for an ex parte meeting on February 24 for the purpose of discussing with Judge Massey some of her rulings in numerous cases, including the Elsik matter. Present at the ex parte meeting were, among others, several investigating officers from the Marine Safety Offices in Louisiana and Alabama who were prosecuting certain cases before Judge Massey, including the Elsik case;  Kenneth J. Wilson, senior attorney advisor to the ALJ Docketing Center and member of Judge Ingolia’s staff; Hanna Liddington, and attorney for the USCG’s appellate staff who drafted commandant appeal decisions; Megan H. Allison, attorney advisor to the ALJ Docketing Center; and George J. Jordan, who was at the time of the meeting USCG Judicial Administrator and also a member of Judge Ingolia’s staff. Neither Mr. Elsik, nor any other respondents whose cases were to be discussed, were present.   

If this meeting did in fact occur as alleged by Judge Massey, it would have represented express violations of several federal statutes and regulations including: (1) 5 USC 557 (d)(1) (prohibiting conversations relevant to the merits of a proceeding with a person or party on fact issues unless notice and opportunity to attend is given to all parties); 33 CFR 20.206 (a) (prohibiting the Coast Guard from subjecting an ALJ to supervision or direction by those conducting the investigation or representing the Coast Guard);   and 33 CFR 20.206 (b) (prohibiting Coast Guard officers, agents or employees from participating in, or advising a decision of the ALJ).   

The report of Jordan’s appointment comes while Jordan and the others implicated in the ongoing scandal, including Chief ALJ Ingolia himself, are still under investigation by the Department of Homeland Security, Office of the Inspector General, for wrongdoing arising from Judge Massey’s allegations.  These circumstances caused one commentator to observe: “ Appointing Jordan as ALJ under these circumstances seems to undermine the USCG’s claim that they have adequately addressed the issues raised. The USCG seems to have a total lack of sensitivity in handling any issue affecting mariners that comes before them – an indication of arrogance.” According to the Coast Guard’s “Homeport” website, Jordan will be assigned to the Seattle area. We have been told by Assistant Counsel of the Office of the Inspector General of the Department of Homeland Security that his office has completed the “field work” stage of its investigation, and that it is embarking on the “evaluation” part next. We have been told that there is at present no anticipated release date for the report, but that such a date should be known in about one month’s time. We will keep you advised of all details as we learn of them.

Coast Guard Watch

The most recent United States Coast Guard Authorization Bill cleared the House of Representatives in late November 2009 without any Administrative Law Judge reform language. Chairman Elijah Cummings of the House Subcommittee on Coast Guard and Maritime Affairs now wants to refrain from taking any action on the ALJ matter until he can hold follow up hearings in 2010.

And, under the "You'd think they would have something better to do with their time" department, there's this: The Coast Guard announced on December 23 that it is adjusting its civil penalty schedule upward by 19.12 % to account for inflation since the last upward adjustment in the year 2003. 74 Fed. Reg. 68150 (Dec. 23, 2009).

Many readers will recall the June 12, 2009 GAO report on the Coast Guard's administrative law program (Currents & Eddies, June 25, 2009). Reference was made in that article to an internal review by the Department of Homeland Security Office of the Inspector General. Whereas the GAO report merely looked at the administrative law program's legal and regulatory structure, (and concluded that the governing statutes and regulations, at least, did provide sufficient guarantees of fairness to the mariner), the Inspector General Review is expected to examine the specific allegations of wrongdoing raised by retired Coast Guard Administrative Law Judge Jeffie J. Massey. At the time of the June 25 article, it was reported that the DHS I. G. would have its report out by the end of the summer (meaning August or September 2009). That report is not yet out. Interviews and investigations by I.G. attorneys and staff continued throughout the fall of 2009, and the report is now expected to be released sometime this spring.

USCG v. George L. Law. Jr. Comm.

(App. Dec. 2663) (August 6, 2007)

In this case, the Coast Guard charged the respondent with misconduct for failing to disclose a criminal conviction in his license renewal application. The ALJ found misconduct, but imposed a six month suspension rather than a penalty of revocation, which the Coast Guard insisted was mandatory. The Coast Guard appealed, but the Commandant sustained the ALJ's suspension.

The particular facts in the case were central to the ALJ's - and eventually the Commandant's - reasoning. In 1999, the respondent had pleaded nolo contendere to a domestic violence battery charge and was ordered to pay court costs and to attend anger management classes. The court later modified its order by waiving the anger management class requirement. At his license hearing, the respondent testified that he thought the trial court's waiver of the anger management requirement resulted in dropping the battery charge and that because of that, he was therefore not required to report the incident on his license renewal application form. In its appeal to the Commandant, the Coast Guard argued that there was no specific intent element in their misconduct charge, and that prior Commandant Appeal Decisions mandated a revocation.

In sustaining the ALJ's lesser sanction of suspension, the Commandant noted that prior Appeal Decisions had recognized a difference between a fraudulent statement and a false statement. A false statement is one where there is no actual or constructive knowledge that the statement is false; a fraudulent statement requires knowledge of falsity and intent to mislead. The Commandant also noted that the Administrative Procedures Act ("APA") requires that any imposition of a sanction must be supportable by probative, substantial and reliable evidence. (5 USC sec. 551). He also noted that the Supreme Court has equated "probative, substantial and reliable" evidence with the "preponderance of evidence" standard, and went on to note that under the application of either standard, the Coast Guard had failed to meet its burden of proving fraud. Because of this, and because of the fact that Commandant Appeal Decisions had specifically found "false application" to be a lesser included offense within the charge of "fraudulent application", the absence of a specific intent specification in the charge sheet was not dispositive. The ALJ's order of a suspension rather than a revocation was accordingly sustained. 

EVALUATION

This case provides useful citations and useful analytical tools for the defense of any claim of fraud and, in a more limited sense, for any claim for which specific intent may become an issue. It should be noted however that the decision in this case specifically rests on the distinction between a false statement and a fraudulent one.


Cosco Busan Lessons Learned

The recently reported news releases of the conclusion of the criminal case against the pilot ofthe Cosco Busan noted that it resulted in a prison sentence for the pilot. It will be recalled that the COSCO BUSAN, a 900 ft. long Hong Kong-registered container ship, allided with the San Francisco-Oakland Bay Bridge on November 7, 2007, resulting in a 53,000 gallon oil spill into San Francisco Bay.  Although many in the maritime industry have roundly deplored the legislative and public culture that has in recent years led to the criminalization of maritime accidents, the event does leave us with some important lessons to be learned, or in most cases, re-learned. It is thought that it would be helpful to restate some of the more obvious ones here for MOPS attorneys and insureds,  as a graphic and shocking reminder of the constant need to be vigilant, and of the ease with which of a sequence of seemingly minor oversights can conspire to compound themselves quickly into a calamity of enormous proportions:

  1. It is absolutely essential for a pilot and the master to review a passage plan before departure and to have a so-called “master-pilot exchange” before departing, in every instance, no matter how routine, and no matter how many times that particular master and that particular pilot may have made the passage previously (How many of us have represented a pilot in a case when that was not done?);
  2. In this age of radar, collision avoidance systems, computers, electronic charts and GPI navigation, failure to post low visibility lookouts can still be seen as contributing fault if followed by a casualty (How many times have we seen that?);
  3. Similarly, no matter how familiar a master or pilot may be with local waters, failure to make some arrangement to plot positions on a chart can also still be seen as contributing fault (And how many times have we seen that one, too?) (NOTE: neither the Coast Guard nor the federal court accepted the COSCO BUSAN pilot’s excuse that he did not need to make written plots in pilot waters with which he was intimately familiar because it was “like backing (his) car out of the driveway”);
  4. It should go without saying that all members of the bridge team, including the pilot, must be proficient in the use of all bridge equipment. (The COSCO BUSAN pilot was cited for failure to notify the master that he thought the radars were both unreliable, as he later claimed, and also for being seemingly unable to properly use the vessel’s electronic chart system);
  5. It should also go without saying that licensed  mariners must disclose all medical conditions and prescription drug use on their annual medical forms submitted to the Coast Guard; and
  6. Finally, it should come as no surprise that a mariner’s decisions leading up to a casualty may be judged in hindsight in part based on what other mariners did or did not do in the same situation, especially when the action or conduct of others was different. Clearly mariners should ask: What are others doing in these circumstances? (The COSCO BUSAN pilot was faulted for getting underway in thick visibility when six other pilots in the same area had declined to do so - naturally, there is no mention of how many other pilots DID get underway.) 

If these all seem to be simple, commonplace and common sense precautions, they are. Yet an experienced and by all accounts skilled and capable marine pilot apparently felt safe disregarding each of them. We can all use a reminder from time to time never to take any established professional precaution for granted, no matter how minor,  how simple or how unimportant it may seem at the moment. 

Coast Guard Regulatory Changes

The June 29, 2009 Federal Register contained publication of a final rule which will enact several changes to the Coast Guard’s Suspension and Revocation (“S&R”) procedures. The preamble states that the Coast Guard believes that the changes are internal and administrative in nature, relating to internal Coast Guard organization, and have no substantive effect upon the rights of mariners or the public. Notwithstanding that asserted view, and upon review, it appears that the changes may have some peripheral consequences for mariners, and they are in any event at least sufficiently noteworthy to call to the attention of MOPS attorneys and insureds:

  1. The powers of the commanding officer of the National Maritime Center (“NMC”) will be broadened to include the power to refer S&R cases to the recently established “S&R National Center of Expertise”  (“NCOE”), located at the NMC in Martinsburg, West Virginia. This is in addition to the current procedure of referring cases to the processing Regional Examination Center(“REC”), or to the local Officer in Charge, Marine Inspection (“OCMI”). According to the Coast Guard, this will broaden the “Team of Coast Guard personnel” who may handle S&R cases, but (and again, this is according to the Coast Guard), will not affect the process or procedures for the mariner who is the subject of an S&R case. COMMENT: This is part of the Coast Guard’s drive to centralize licensing functions in the new NMC facility in West Virginia. To date, the effort has been plagued with many well-publicized problems involving inordinate processing delays and significant under-staffing. As an example, mariners have recently been forced to wait many long months for license renewal applications to be processed by the new NMC, particularly when a medical waiver is involved, whereas under the previous procedure, they could walk into their local REC and get the applications processed in a matter of days, and often in an emergency, on the same day. Until the Coast Guard gets its centralization problems ironed out, don’t be surprised by longer delays in the handling of any S&R issue, and that will have some effect upon the rights of the mariner; 
  2. IO’s at the NCOE will now be authorized to initiate S&R  proceedings by issuing complaints directly against mariners, conducting investigations and handling  all other aspects of S&R case processing. Currently this is done by an OCMI, or more typically, by a local IO appointed for that task by the OCMI. COMMENT:  Many of the important functions performed by an IO must be done at the local level, such as boarding a vessel, conducting an investigation and taking witness statements, etc. Quaere: how will NCOE handle that from afar? I would here note, too, that many of those same local IO’s are frequently not well versed in regulations or drawing up complaints or in correctly setting forth all of the elements of their claim against the mariner. Possibly the Coast Guard hopes to remedy this shortcoming (well known to most attorneys who have ever defended license actions brought by the Coast Guard) with a staff of “experts” at NCOE who will be better versed in the finer points of legal practice and procedure. Whether that result will in fact occur, and how smoothly this additional administrative layer will get integrated into the Coast Guard bureaucracy, remains to be seen. Certainly administrative delays and turf wars, always foreseeable in large reorganizations of this nature, will do nothing to advance the rights of the mariner.

The full text of these regulatory changes can be found in the Federal Register, Vol. 74, No. 123, Monday June 29, 2009, pp. 30935 et. seq. (FR Doc. E9-14784, filed 6-26-09.) Because the Coast Guard determined that these changes affected only its internal agency delegation of authority and the functioning of its internal organization, the final rule was printed without prior notice and without public comment and is to become effective without further action within 30 days of its publication.

Review Of Recent Vice Commandant Appeal Decisions Of Interest

USCG v. ERIC NORMAN SHINE

(App. Dec. 2661) (December 27, 2006)

This is a case involving a charge rarely seen in the past, but one which, given increasing Coast Guard scrutiny in this area, may well arise more in the days ahead: medical incompetence. The Coast Guard complaint alleged incompetence due to a “major depressive disorder” or “other psychiatric condition”, the exact nature of which “would be determined through the hearing process.”  The ALJ ordered the respondent to submit to a psychological examination by an independent doctor of the ALJ’s choosing. The respondent, a licensed second engineer, refused, and instead submitted to a psychological evaluation by his own chosen doctor. That doctor stated that while the respondent did suffer from “major depression”, that condition did not render him incompetent to carry out the duties of a marine engineer. Citing a supposed “negative inference” from the respondent’s refusal to submit to a psychological evaluation by the ALJ’s chosen doctor, the Coast Guard moved for, and was granted a summary decision of medical incompetence by the ALJ.

The Respondent appealed. The evidence submitted on appeal was extensive and not helpful to the respondent. He had had a troubled history in the industry. He felt that he had been a long-standing recipient of unfair treatment by both prior employers and his union, against both of whom he had filed several suits over the years. In his last job, the Chief Engineer stated that the respondent’s behavior was aggressive, insubordinate and unsafe, and that his presence aboard the ship “created an unseaworthy condition”. The situation was further complicated when the respondent’s father died while he was aboard the ship, and he was unable to get the amount of leave he wanted. 

Despite this parade of unhelpful facts, the main issue presented on appeal was the standard of review for a summary decision: how to determine whether there was any genuine issue of fact about the nature of the respondent’s medical condition. Because this was an issue of first impression for the Commandant, there were no Commandant Appeal Decisions to serve as guidance and, accordingly, the Commandant turned to federal case law for guidance on the standard of review. Reviewing federal summary judgment standard of review cases, the Commandant concluded that, while the ALJ below had clearly expressed doubts about the reliability of the respondent’s own psychological evaluation, (because, among other reasons, the report failed to take note of the respondent’s admitted extensive history of nervous breakdowns, hospitalizations and counseling) the ALJ must nonetheless review the evidence in the light most favorable to the respondent. Accordingly, the case was vacated and remanded.

Comment And Assessment

This is, as noted above, a case of first impression for the Commandant and it is therefore of some interest. While we sometimes see, and tend to become used to seeing, the often clear-cut guidelines of federal admiralty law watered down (no pun intended) into limp and meaningless administrative law mush-words, all tending to give to the ALJ inordinate amounts of discretion (and which ends up being used for the general purpose of underpinning result-oriented decisions for the benefit ofCoast Guard prosecutors), this case serves as refreshing re-injection of real law andreallegal standards back into the bloated, flaccid and moribund body into which Coast Guard administrative law has been permitted to morph. We see, for example, old friends like: all justifiable inferences must be drawn in favor of the non-movant; a genuine issue of fact exists when both parties have submitted contradictory facts; and this important one – the showing of affirmative evidence needed to defeat a motion for summary decision need only be more than a scintilla, and need not be a preponderance of the evidence. It is a welcome if rare event when a Commandant decision clarifies administrative law with crisp, clear standards. This decision is such an event, and it contains language that may be of great use to the MOPS attorneys who may in the future be faced with defending against, or moving for, summary decision.

USCG v. WILLIAM VOORHEIS

(App. Dec. 2662) (January 12, 2007)

It has long been conventional wisdom among license defense lawyers that the Coast Guard never loses a drug case, so this was welcome news – here is a case that they lost, fair and square!  The respondent, who tested positive for amphetamines, raised as a defense the fact that he had taken an anti-obesity drug he got in Mexico called Anselix.  Anselix was not a medication approved for use in the United States, and it had not been taken under a prescription from or with the supervision of a physician. So far, this sounds like it should have been a slam-dunk for the home team, the good guys wearing white. 

In preparing for the hearing, the Coast Guard asked the ALJ to allow telephone testimony from: (1) the MRO;  (2) the laboratory vice president; and(3) the specimen collector. The ALJ granted the motion with respect to the first two, whose locations were remote from the hearing site, but denied it with respect to the specimen collector, because she lived and worked in close proximity to the Beaumont, Texas hearing site;  and also because part of her testimony was supposed to be an identification of the respondent as the person giving the sample, a task that the respondent insisted  (and the ALJ agreed), would require her physical presence at the hearing. In an apparent effort to appease the Coast Guard, the ALJ offered to move the site even closer to the specimen collector, but the Coast Guard, for reasons that remain unknown, declined. 

Incredibly, the Coast Guard then proceeded to the hearing without calling the specimen collector. And because without her, the Coast Guard could not properly authenticate the Federal Drug Testing Custody and Control Form (“DTCCF”), the ALJ would not admit that form into evidence. In addition, and as noted earlier, without the specimen collector, the Coast Guard could not identify the respondent as the person giving the sample. Even without the DTCCF, and the critical link between the respondent and the positive sample, some ALJ’s might have found a way to let the Coast Guard’s case go in anyway (based on the broad discretion of an ALJ to admit  hearsay, etc.). But not this one: again, somewhat incredibly, the ALJ dismissed the Coast Guard’s complaint for failure to prove its prima facie case.

On appeal to the Commandant, the Coast Guard argued that:  (1) that the ALJ abused his discretion by denying the Coast Guard’s motion for telephonic testimony of the specimen collector;  (2) it was reversible error for the ALJ to deny the Coast Guard offer to admit into evidence the unauthenticated DTCCF because administrative law permitted the admission of hearsay and did not require formal authentication; and (3) the Coast Guard was entitled to a presumption of dangerous drug use because the respondent did not deny taking the drug in question, did not deny testing positive for amphetamines and did not deny that the drug test was conducted according to DOT regulations.

Again, somewhat incredibly, the Commandant affirmed the ALJ’s dismissal and denied the Coast Guard’s appeal. As to the first ground for appeal, the Commandant noted that the ALJ, under 33 CFR s. 20.707, possessed the clear discretion to permit telephonic testimony. In this case, the ALJ’s decision was not arbitrary or capricious because: (1) the specimen collector was located close to the collection site; and (2) the collector’s visual identification of the respondent as the person who gave the sample was an essential element of the Coast Guard’s case, and could not be obtained by telephone. As to the second ground for appeal, the Commandant again found, at 33 CFR s. 20.802(b), regulatory authority for complete ALJ discretion in the admission of documentary evidence based upon the familiar test of weighing of probative value versus risk of prejudice. The Commandant noted that because of that, there was no abuse of discretion when the ALJ had found that the DTCCF, absent authentication, was not credible and presented a risk of prejudice. 

The Commandant’s discussion of the third ground of appeal, relating to presumptions, is of particular interest because that is an issue that frequently comes up in license defense cases. Here, the Commandant found that the Coast Guard was not entitled to rely on a presumption of dangerous drug use simply because the respondent did not deny drug ingestion, a positive test result for amphetamines, or compliance with DOT regulations. This was because of the fact that the respondent had testified that he unknowingly ingested the drug as what he thought was a lawful medication (he said that he did not know it was unauthorized in the US), and because the respondent succeeded in establishing on the record credible evidence that when taken, Anselix does in fact metabolize into an amphetamine which could have caused a positive test result. (Imagine - a CG ALJ believing that!) The Commandant continued with a discussion of the essential elements of proof that the Coast Guard must meet to prove its prima facie case. The very first element was a positive identification of the respondent as the person who took the test and gave the sample that was tested. Because the Coast Guard had failed to call the specimen collector, it had failed to prove this essential element of its case, and therefore the Coast Guard could not prove its prima facie case. And, because of that failure, it could not benefit from a presumption. The ALJ’s dismissal was affirmed. 

Comment And Assessment

This case is important in several respects for our license defense purposes. First, it is important because it contains a clear statement of the elements in a drug case that the Coast Guard must meet in order to prove its case. Next, it is even equally important because the Commandant sustained the broad discretion of the ALJ to, in this case, rule AGAINST the Coast Guard on the surprising issue of the admission of hearsay evidence. There is a good discussion of the regulatory authority and the arguments on both sides, with the very rare result that the ALJ’s discretion is upheld in a ruling AGAINST the Coast Guard. There are very few decisions out there that do this with such a clear explanation and such a solid legal foundation. Next, and again equally important for our purposes, this decision gets something very important right, something that many ALJ’s and Commandant decisions sometimes tend to obfuscate or blur: It makes it completely  clear that the Coast Guard must, at the inception, prove every legal element of its prima facie case BEFORE it can ever claim to benefit from any presumption. Many ALJ’s like to gloss over that fundamental requirement in an attempt to mop up for the Coast Guard a case that was not well handled or that did not go in well. This is a good case to keep in your file for future battles with the Coast Guard over hearsay, telephonic testimony, clear, crisp connections of evidence (or the lack of it) to burdens of proof and a clear statement of the necessary elements of a Coast Guard drug case against a mariner.

What Constitutes Timely Reporting To The Coast Guard?

Several recent MOPS cases have brought to light the issue of what constitutes timely reporting to the Coast Guard of a reportable marine casualty. (What constitutes a reportable marine casualty is beyond the scope of this article -see 46 CFR s. 4.05-1 (a) (1) - (8) where reportable casualties are specified.) Coast Guard regulations contain two separate reporting requirements.
The first requirement, found at46 CFR s. 4.05-1(a), obligates the owner, agent, master, operator, or person in charge of a vessel involved in a reportable marine casualty to notify the nearest Coast Guard Sector Office, Marine Inspection Office, or Coast Guard Group Office "immediately after the addressing of resultant safety concerns".  The second requirement, found at 46 CFR s. 4.05-10 (a), obligates the owner, agent, master, operator, or person in charge to deliver to a Coast Guard Sector Office or Marine Inspection Office a written report, on a Form CG-2692, of any casualty required to be reported by s. 4.05-1, within five days.  Although the cited regulations create obligations to make two separate reports, there is an interconnection between the two separate obligations. In an often-overlooked section of the regulations, 46 CFR s. 4.05-10 (b) states that, "If filed without delay after the occurrence of the marine casualty" the report required by s. 4.05-10 (a) (i.e. - the written CG 2692 report) "suffices as the notice required by s. 4.05-1 (a)." 

Failure on the part of a mariner to make either report in a timely fashion can subject the mariner's license to a separate Coast Guard charge of misconduct, apart from whatever other charges, if any, might arise out of the occurrence of the casualty itself.  If you are ever called upon to defend aMOPS insured against a charge of failure to make a timely submission of either required report, here are some cases and principles which may be of assistance to you.

Timely Reporting To The Coast Guard

A REPORT TO THE OWNER'S REPRESENTATIVE MAY SUFFICE
USCG v. George V. Lawrence, (App. Dec. 2225) (1980) (1980 WL 338514) 
  

At 9:40 AM on January 14, 1979, the M/V SAM LAUD allided with a moored vessel while proceeding inbound in the Cuyahoga River in Cleveland. The moored vessel was laid up and unmanned; the allision was slight and no one was injured. The SAM LAUD continued its voyage upriver and moored at 2:00 PM the same day. After the vessel was safely moored, the captain, who was the respondent in this license action, notified an employee of his vessel's owners about the allision. The employee told the captain that he would notify the Coast Guard and the owners of the other vessel. The captain took no further action. The following day, at 3:00 PM, after the SAM LAUD had departed, a different employee of the vessel's owners finally notified the Coast Guard of the casualty. At the next port, the SAM LAUD's captain mailed a written 2692 to the Coast Guard; it was posted January 17, 3 days after the casualty, and received January22, 8 days after.

The Coast Guard charged the captain with misconduct for failure to give notice to the Coast Guard of the casualty "as soon as possible" in violation of 46 CFR s. 4.05-1. The ALJ found the Coast Guard charge proved and entered an admonition. The captain appealed to the Vice Commandant. The Vice Commandant vacated the ALJ's findings, and dismissed the charge. In doing so, the Vice Commandant noted that the actions of the captain in notifying the owner's agent of the casualty immediately after docking, and eliciting from him an assurance that he would notify the Coast Guard, was sufficient to satisfy the requirement of the regulation, which did allow for the submission of the required report by the vessel's owner, agent or operator.

FILING A CG 2692 "WITHOUT DELAY" MAY SUFFICE
USCG v. David E. Bracken, (App. Dec. 2523) (1991) (1991 WL 11007455)


The respondent was captain of the tug and barge flotilla M/V BELCHER PORT EVERGLADES and barge BELCHER 101, which grounded without damage while proceeding inbound through Tampa Bay at 2:05 PM on January 8, 1990. The respondent was able to refloat the flotilla quickly and proceeded to tie up at Port Manatee later in the afternoon.  Upon arrival, the captain notified his superior of the grounding; subsequently a senior vice president of the owning company notified the Coast Guard at midday on January 11, three days after the grounding incident. On the same day, the captain appeared at the Coast Guard Marine Safety Office and personally filed a written CG 2692 report of the casualty.

The Coast Guard charged the captain with misconduct for violation of 46 CFR s. 4.05-1 for failure to give notice of a marine casualty "as soon as possible". The ALJ found the Coast Guard charge proved and suspended the captain's license for one month. On appeal, the Vice Commandant vacated the ALJ's finding and dismissed the charge.  In doing so, the Vice Commandant reasoned that, although the captain had not given notice as required by s. 4.05-1, he had nonetheless met the requirements of s. 4.05-10, and that excused the earlier violation because s. 4.05-10 states: "If (the USCG Form 2692) (is) filed without delay after the occurrence of the marine casualty, the report required by paragraph (a)  of this section suffices as the notice required by s. 4.05-1 (a)."  The Vice Commandant noted that the captain had filed the 2692 three days and seventeen hours after the casualty, and based on that, he was unable to conclude that the captain had failed to meet the "without delay" requirement of s. 4.05-10 (b); and because of that, the 2692 filing was a per se satisfaction of the notification requirements of s. 4.05-1 (a).

REPORTING ON THE SAME DAY MAY SATISFY THE "IMMEDIATELY AFTER" REQUIREMENT OF s. 4.05-1 (a)
USCG v. John W. Schuiling (App. Dec. 2341) (1982)
Affirmed, sub nom Commandant v. John W. Schuiling, 4 NTSB 1977 (1984), NTSB Order No. EM-109, WL 62153


The respondent in this case was the chief engineer of the SS JACKSONVILLE.  On October 8, 1982, while the ship was moored in Baltimore, Maryland, the "main propulsion motor" was flooded by one and a half feet of bilge water and was grounded and rendered inoperative. The Coast Guard was not notified. The bilges were drained and the motor was repaired, and satisfactorily tested on October 10. Again the Coast Guard was not notified, and was accordingly not given the opportunity to witness the testing. On October 12, while the ship was at sea, the main propulsion unit tripped its ground relay and phase balance relay, resulting in grounding of all three of its phases, and a further loss of the ship's main propulsion. The ship was towed into Wilmington, N.C. on October 13; no report was made to the Coast Guard until two days later, October 15. When a Coast Guard representative visited the vessel on October 15 to investigate the casualty, it was the first time that the Coast Guard learned of the original October 8 grounding of the main motor. 

The issue addressed by the appeal to the Vice Commandant was whether the chief engineer's October 15 report to the Coast Guard, coming as it did two days after the vessel's arrival in port on October 13, complied with an "immediately after" requirement found in a parallel Coast Guard regulation governing engine repairs (46 CFR s. 97.30-5).  It probably goes without saying that, on these facts, the Commandant sustained the ALJ's sanction, which remarkably enough, was only an admonition. But of interest to us in the decision is the statement by the Vice Commandant, at page 12 of the decision which accompanies the NTSB report, that "In the circumstances of this case where, in the very least, a telephone call to the Coast Guard office in Wilmington could have been made, 'immediately' means the very same day the vessel arrived in port. Thus, notification on October 13 was required."

NOTES

(1) Although arguably the latter statement in the SCHUILING decision is dicta, reference to this NTSB opinion and its accompanying Vice Commandant decision has already resulted in the Coast Guard withdrawing a threatened letter of warning against a MOPS insured who did not report a casualty "immediately" upon arriving in port, but did make a personal report later in the same afternoon on a visit to the Coast Guard office for another purpose.     

(2) You should be aware, in relying upon these cases before the Coast Guard or an ALJ, that it appears that the language of s. 4.05-1 was slightly different in the first two cases. The BRACKEN decision, dating from 1991, quotes s. 4.05-1 as stating: "The owner, agent, master or person in charge of a vessel involved in a marine casualty shall give notice AS SOON AS POSSIBLE to the nearest Coast Guard Marine safety or Marine Inspection Office..."  The LAWRENCE decision, dating from 1980, also refers to an "as soon as possible" requirement. Thatwording in both of these cases is of course different than the"Immediately after addressing resultant safety concerns" language found in the current version of s. 4.05-1(a). Note, however, that the NTSB SCHUILING decision and case included in its report does revolve around "immediately" language found in another part of the regulations relating to engine testing. In any event, we believe that the principles and reasoning articulated in these cases ought to be sufficiently compelling and persuasive to overcome any objections about the relatively minor changes to the wording of the regulations.    

We would be interested in hearing about any further experiences you may have had defending MOPS insured against charges of untimely reporting to the Coast Guard.

Two Month Jail Sentence For Falsifying License Application

On May 5 2008, a merchant mariner from Panama City, Florida was sentenced by a United States District Judge to two months in jail, followed by 60 days in a halfway house, then two years of supervised release, for falsely claiming that he had never been convicted of a crime on an application for a merchant mariner's license submitted to the United States Coast Guard. The application had been filed with the Coast Guard in January 2001. The mariner had been convicted of the offense of False Statement to a United States Agency in March 2004.

It is reported that this case marks the first criminal conviction of a mariner identified through the Coast Guard's nationwide initiative known as "Operation Drydock". That program was originally conceived in December 2002 as a counterterrorism investigation tool, supposedly for the purpose of identifying loopholes or weaknesses in the Coast Guard's merchant mariner credentialing process. Under this program, the Coast Guard began working with the FBI, the National Joint Terrorism Task Force (NJTTF), and other law enforcement agencies, to compare the names of over 220,000 credentialed mariners with names in numerous law enforcement conviction records around the nation. The mariner who was convicted in 2004 and sentenced on May 5, 2008 had no association with terrorism. Instead, he got caught in the Coast Guard's net by his own undisclosed prior criminal (burglary) and drug (paraphernalia possession and use) convictions.

Comment And Assessment

Because license applications must be signed "under the pains and penalties of perjury", willful or intentional mis-statements can be considered to be perjury. In the past, we have found that many such omissions were understandable or explainable. Many often related to, for example, a history of disorderly behavior in the mariner's youth, which stopped later in life when the mariner got a license, got a job, settled down and became more responsible. Particularly in cases in which there may have been multiple convictions close together in time, and where they had happened many years ago, it was easy to overlook or to forget one or more of them. Also, in cases in which the earlier disorderly conduct later stopped, and the mariner was clearly reformed or rehabilitated, the Coast Guard was often willing to overlook such an omission as understandable under such or similar circumstances, provided always that the mariner could prove with his or her court documents complete satisfaction of whatever sanction the court imposed.

Whether this case signals an end to such prior thinking is not clear; what is clear, however, is that there may be a very severe sanction for overlooking or omitting the disclosure of a criminal or drug use conviction from a mariner's license application. Previously, we advised mariners that such an omission might, in theory, lead to a misconduct claim against him or her and therefore exposure to an additional and independent basis for suspension or revocation of the mariner's license. MOPS attorneys who may be called upon to advise mariners in this situation should know that the stakes may now be even higher than that, and they should advise the mariner accordingly.
 

Review Of Vice Commandant Appeal Decision Of Interest

USCG v. Charles Eugene Walker

(App. Dec. 2677) (March 20, 2008)   

The Respondent in this case was charged by the United States Coast Guard with a single specification of misconduct when, following direction by his employer to take a "Reasonable Suspicion DOT alcohol test in accordance with 46 CFR 16 (sic)" he tested positive for alcohol. The Respondent failed to answer the complaint and the ALJ granted the Coast Guard's request for a default order.  Under 33 CFR 20.310 (c), the allegations in the complaint were therefore considered admitted. The Administrative Law Judge ALJ suspended the Respondent's credential for 15 days. Without ever participating in any aspect of the ALJ proceedings, the Respondent then appealed the suspension to the Vice Commandant.

The basis of the Respondent's appeal was that the record of the ALJ proceeding on the whole failed to contain substantial evidence to show that the Respondent was "acting under authority of his merchant marine credential".  46 USC s. 7703 requires that in order to establish jurisdiction in a misconduct case, the alleged conduct must be proven to have occurred while the mariner was "acting under the authority " of his credential. The regulations found at 46 CFR s. 5.57 (a) define "acting under the authority" as occurring when the holding of the credential is either required by law or regulation, or required by an employer as a condition of employment.

The Vice Commandant noted that even though this was an appeal from a default in which all allegations were deemed admitted, the Respondent had raised an issue of jurisdiction, and the burden of establishing jurisdiction nonetheless remained with the Coast Guard. Turning then to the Coast Guard's complaint, which because of the respondent's default was the only thing on the record, the Vice Commandant observed that it was completely silent on whether the Respondent was "acting under the authority" of his credential. Absent any such allegation which could have been deemed admitted, the Vice Commandant found that the Coast Guard had failed to meet its burden of establishing jurisdiction, and the Coast Guard's complaint was dismissed.

Comment And Assessment

This is an extremely interesting and instructive case for several reasons. First, of course, it reminds us that in examining a Coast Guard complaint, we should always ensure that the Coast Guard properly alleges all of the essential elements of its cause of action. In this case, the Coast Guard did not. Secondly, it points out the fact that whether alleging a particular set of facts will be jurisdictional or not will often, as in this case, depend upon the wording of a particular statute or regulation. The statutory and regulatory basis for the Coast Guard's complaint must therefore always be closely examined.

Finally, and most interestingly, this case presents the fascinating, if not counter-intuitive possibility that, on these facts at least, itwas a better defense strategy to take a default on the complaint in the ALJ proceedings,  than it would have been to answer and defend.  This cannot be stated for certain because the Vice Commandant does not tell us, as apparently he cannot, whether the mariner in question actually WAS operating under authority of his credential at the time of his employer-ordered test. But assuming for the moment that he was, consider this: Had the mariner in fact answered the complaint and defended at the ALJ level, and had he raised the jurisdictional issues in his answer as he ought to have done, the ALJ would no doubt have cleaned the Coast Guard's case up for it, either by permitting it to amend its complaint to properly allege jurisdiction, or by doing it himself sua sponte, as Coast Guard ALJs are not infrequently known to do. Either way, the jurisdictional problem for the Coast Guard would undoubtedly have been cured prior to appeal…had it been raised below at all. But because the ALJ proceedings below went into default, the faulty jurisdictional allegations in the Coast Guard's complaint were never cured, and when the issue got to the Vice Commandant it was then too late. Alternatively, the same result could in theory have also been achieved had the Respondent answered and defended before the ALJ, but not raised the jurisdictional issue at all until the appeal. That would have of course been riskier, but there is at least the traditional argument that jurisdiction goes to the power of the tribunal to hear the matter at all, and therefore it is always in order for an appellate authority to look at jurisdiction whether it was properly raised below or not. The other unknown presented by this case is what role was played in the Vice Commandant's thinking by the fact that the Respondent was apparently unrepresented at all until the appeal. Would the Vice Commandant have been as ready to find against the Coast Guard had the Respondent been represented, and especially if the default been part of a concerted and calculated defense strategy? 

Whether the default strategy was intentional or not, it can be observed from one viewpoint at least that the strategy itself was, when judged by the result, brilliant: it made a skillful end-run around, and in so doing neutralized completely, one of the Coast Guard's biggest advantages - the proactive role of the ALJ, who can always be relied upon to faithfully patch up all the leaks in the Coast Guard's case before sending off onappeal.  Because of the inherent risks which a calculated employment of this strategy would no doubt raise,  we of course stop short of recommending this as a defense strategy; but the points raised by this case are certainly worthy of note, and it is at least a case worth keeping on file.


Recovery Of Attorneys' Fees In ALJ Actions

A little-known provision of the Administrative Procedures Act found at 5 USC §504(a)(1)-(2) (sometimes called the “Equal Access to Justice” provision) opens the possibility to a prevailing party (other than the United States), to collect these and other expenses incurred in an adversary adjudication.  This would cover the successful defense of a MOPS-insured in a Coast Guard administrative law license action.

To qualify for an award of fees and costs, the mariner must have prevailed completely (that is, must have succeeded in getting the Coast Guard’s case dismissed or defeated in its entirety).  The mariner must then submit to the agency an application showing that he or she is the prevailing party and is eligible to receive an award under this section within thirty days of a final disposition of the adversary adjudication.   5 USC §504(a)(2). 

Finally – and here’s the punch line – the prevailing party, in order to qualify for an award of fees and expenses, must prove that the position of the agency (i.e., the Coast Guard) was “not substantially justified.”

“Fees and other expenses” include the reasonable expenses of expert witnesses, the reasonable costs of any study, analysis, report, test or project found by the agency to be necessary to prepare the party’s case, and reasonable attorney or agent fees. 5 USC §504(b)(1)(A).  Attorney or other agent fees shall not be awarded in excess of $125/hour. 5 USC §504(b)(1)(A).  The fees and other expenses awarded under this statute must be paid by the agency over which the party prevails from funds made available to the agency by appropriation or otherwise.  5 USC §504(d). 

“Substantial justification” is defined by case law.  Naturally, “substantial justification” will be relatively easy for the agency to prove by showing that, for example, the claims asserted are based in good faith, or based on a reasonable inquiry or investigation.  Even if the claims are later determined to be in error, the agency will likely be able to establish “substantial justification”.  “Substantial justification” is to be determined on the basis of a review of the administrative record as a whole.  5 USC §504(a)(1).  

In the one reported decision that relates to the Coast Guard, the District Court for the Eastern District of Pennsylvania ruled that there was no abuse of discretion, and therefore that there was substantial justification, for the Coast Guard to issue citations against docking masters for docking vessels without the requisite licenses, even though the docking masters successfully defended against the charges on the basis that there was no clear nationwide policy governing the licensing of docking masters, and that the industry had received conflicting directives.  Bruch v. U.S. Coast Guard, 749 F.Supp. 688 (E.D. PA 1990).

Properly Preserving Claims Of Bias Against The ALJ

The highly publicized recent claims of bias raised against certain Coast Guard administrative law judges (ALJs), and against the Coast Guard administrative law judge system as a whole, have brought to light the express statutory requirements which must be met in order to assert or to preserve any claim of bias against an ALJ.

The Administrative Procedure Act (“APA”) under which Coast Guard administrative law license suspension and revocation proceedings are currently conducted, requires that an affidavit, setting forth the exact facts and reasons justifying any charge of bias against an ALJ, must be filed with the agency, and that the agency shall determine the matter as part of the record and decision of the case.  5 USC §556(b).

It is extremely important that a charge of bias or prejudice be raised at once, and as soon as a party concludes in good faith that the decisionmaker should be disqualified from the hearing of the case for reasons of bias or prejudice.  Failure to raise the issue of bias in a timely fashion will be deemed a waiver of the right to assert bias at a later stage in the proceeding, especially at the appellate level.  See Marcus v. Director, Office of Workers Compensation Programs, US Department of Labor, 548 F.2d 1044, 1050 (D.C. App. 1976).

Review of Vice Commandant Appeal Decisions of Interest

USCG vs. John C. McCarthy

(App. Dec. No. 2680)(April 8, 2008)     

The Vice Commandant affirmed the November 29, 2006 ruling of ALJ Peter Fitzpatrick that the respondent committed negligence and misconduct in piloting a vessel at full speed past an LNG terminal in the Savannah River on March 14, 2006. Among the noteworthy points discussed in this decision are the following:

(1) The Vice Commandant found the term "minimum safe speed" to be synonymous with the term "bare steerageway" (p. 6);

(2) The decision by the pilot to go full speed past the LNG terminal, justified by the pilot on the basis of the channel configuration, was not excused by the Vice Commandant as "error of judgment" because the pilot did have alternatives and therefore need not have elected to make the speed and traffic passage decisions that he did (pp. 7-10); 

(3) The Vice Commandant rejected the pilot's argument that "misconduct" was a lesser included offense of "negligence" (a creative concept borrowed from criminal law) even in a situation where, as here, both charges arose from the identical sets of facts (pp. 10-1); and

(4) The Vice Commandant also rejected the pilot's argument that the 8 month suspension was excessive and "impermissibly penal." The pilot based this unsuccessful agrument on the fact that, although his actions resulted in $110K in property damages, the catastrophic EXXON VALDEZ oil spill in Alaska which causedbillions of property damages, resulted in a Coast Guard license suspension of only 1 month longer (p. 12).

Comment And Assessment

This case is further proof that the "comparison to other sanctions" arguments that we all like to make in an effort to mitigate sanctions against our own clients seldom works, at least not at the appellate level. Of some interest, however, is the discussion about the error of judgment argument. This decision would seem to leave open to further discussion a  possible application of that argument as a defense to a negligence or misconduct charge in those situations in which, unlike this one, the pilot or licensed officer did not have alternatives or make voluntary decisions that later put him into peril.

USCG vs Christopher J. Dresser

(App. Dec. No. 2679)(April 2, 2008)

This decision was the final administrative appeal of a protracted administrative fight over a 1997 positive drug test, and came after a prior appeal and remand. The respondent, who tested positive for marijuana metabolites, was found to have been a user of dangerous drugs. Some noteworthy aspects of this case for MOPS attorneys are as follows:

(1) In situations in which the case is remanded to a substituted fact finder, the substitute fact finder may conduct a new hearing de novo. When credibility is at issue, testimony from critical witnesses may be re-taken; but the substitute fact finder also has the discretion to rely upon the earlier record   for the testimony of non critical witnesses (pp 8-9);
    
(2) It was not procedural error for the ALJ to adopt almost all of the findings and rulings from the Coast Guard, even though cited case law disapproves of the practice (pp. 16-7);

(3) It was not reversible error for the ALJ to require the respondent to produce corroborating evidence of his testimony in order to rebut the Coast Guard's prima facie case, and the ALJ's practice of doing so did not elevate the respondent's burden of proof from preponderance of evidence to clear and convincing evidence (pp. 17-8); and

(4) Coast Guard S & R hearings are governed by the Administrative Procedures Act, and 33 CFR Part 20, not the Federal Rules of Procedure. The FRCP may be used only to supplement the gaps in the governing statutes or regulations (p.20).

Comment And Assessment.

PP. 8-10 of this decision provide us with a good roadmap for the procedures governing remand hearings, for those few instances in which this might occur. Equally as important, and to be encountered much more frequently, is the reminder this decision gives about the importance of getting before the fact finder as much corroborating evidence as we possibly can as a foundation for making the argument that we have rebutted the Coast Guard's prima facie case, and that the Coast Guard must then bear the burden of coming forward with additional evidence to support its claims.

Review of Vice Commandant Appeal Decisions of Interest

USCG v. MARK GLEN WAIN

(App. Dec. No. 2670)(October 27, 2007)

A revocation by the Administrative Law Judge (ALJ) of a Master Mariners Document (MMD) was affirmed on appeal.  The ALJ found that the respondent below submitted a fraudulent application for renewal of his MMD.  The mariner had failed to disclose a number of prior original criminal convictions.  On his application for document renewal, the mariner stated: “it is not my intention to deceive or mislead by any absence or the absence of information. Any conviction, traffic violation or driver’s license suspension is currently on record at U.S.C.G. Long Beach.”

On appeal the mariner argued that the Coast Guard should be responsible for searching public records to ascertain a criminal record history, as he (the mariner himself) was only a high-school graduate and a “simple seafarer” and had neither the resources nor the competence to conduct a comprehensive search as did the Coast Guard.

Not helping the mariner’s case was the fact that he had an extensive criminal record, much of which had not been previously disclosed in prior applications to U.S.C.G. Long Beach.  

The mariner’s appeal for clemency was rejected as not properly before the Commandant on appeal.  The Commandant set forth the clemency procedures found at 46 CFR §5.901-905.

Comment and Assessment:

The mariner’s argument had a certain logic and equity to it, but it was not accepted by the Vice Commandant.  Remember this case if an insured tries to make this point with you!

USCG v. BOUDREAUX

(App. Dec. 2671) (October 27, 2007)

This was an appeal by the Coast Guard of the dismissal of its Complaint by the Administrative Law Judge (ALJ) for repeated failure on the part of the Coast Guard to comply with ALJ-ordered discovery and a subpoena.  The ALJ refused to grant two Coast Guard motions to allow telephonic testimony at the hearing, based on the importance of the witnesses, the need for all sides to assess credibility and the short travel distances involved for the witnesses.  In response to this denial, the Coast Guard apparently showed up at the hearing and refused to call any witnesses.  The ALJ then dismissed the Coast Guard’s Complaint at the opening of the hearing.  

The Coast Guard appealed claiming that it was reversible error for the ALJ to deny its motions for telephonic discovery, and that the judge was biased, has pre-judged the case and should have been dismissed or recused.  The Vice Commandant had no difficulty affirming the ALJ’s dismissal, stating that the denial of the Coast Guard’s motion was within the ALJ’s sound discretion, and that a mere denial of a motion is not evidence of prejudice on the part of an ALJ.

Comment and Assessment:

This will be a good case to cite if you wish to oppose a Coast Guard motion for telephonic testimony at a hearing.  The importance of the witness, need of the ALJ and all sides to assess credibility and short travel distances were all reasons for live testimony cited by the ALJ and affirmed by the Vice Commandant.

USCG v. CLARENCE V. MARSHALL, JR.

(App. Dec. 2672) (December 31, 2007)

Respondent was standing a bridge watch aboard his vessel when two fellow crew members, reportedly intoxicated, approached him and a fight ensued.  Both sides claimed intoxication and racial slurs on the part of the other.  The fighting parties were separated, removed from the vessel and transported separately to the company office where the incident was reported to the police.  In addition, the respondent himself was ordered by his employer to take a chemical test and refused.  The Coast Guard then charged the respondent with misconduct for refusal to test but, after the hearing, the Administrative Law Judge (ALJ) dismissed the Coast Guard’s Complaint for failure to prove “reasonable cause” to order a chemical test at the outset.  The Coast Guard appealed the ALJ’s dismissal.

On appeal, the Vice Commandant affirmed the ALJ’s dismissal.  Determination of “reasonable cause” is an issue of fact for the ALJ.  From evidence presented at the hearing, the ALJ properly found that at the time the employer ordered the respondent to submit to a chemical test “no person had observed evidence that the respondent’s manner, disposition, speech, muscular movement, general appearance or behavior had been effected by an intoxicant, so that it was apparent by observation.”

Refusal to consent to a chemical test is therefore not misconduct under 33 CFR 95.04 where there is no evidence of intoxication as set forth by 33 CFR §95.035(a)(2), and there is therefore no “reasonable cause” to require the test in the first place.

Comment and Assessment:

Only a law enforcement officer or a marine employer may direct an individual operating a vessel to undergo a chemical test when reasonable cause exists. 33 CFR §95.035(a).  Reasonable cause exists when: (1) the individual was directly involved in the occurrence of a marine casualty; or (2) the individual is suspected of being in violation of the standards in §95.020 or §95.025.  33 CFR §95.035(a)(1)-(2).  Section 95.020 sets the standards of intoxication at .10% alcohol by weight in blood for operation of a recreational vessel, .04% alcohol by weight in blood for operation of a non-recreational vessel, or observable effects of an intoxicant on a person’s manner, disposition, speech, muscular movement, general appearance or behavior.  33 CFR §95.020 (a)-(c).  This case clearly defines “reasonable cause” and makes it clear that the Coast Guard must show facts to support the existence of reasonable cause as an element of its proof.