Review Of Recent Vice Commandant Appeal Decisions Of Interest


(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.


(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.