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.