OK, Coast Guard - Prove I’m A User

Decisions & Order, May 11, 2016
Bruce Tucker Smith, ALJ

We have frequently discussed in Currents & Eddies the distinction that the Coast Guard has always been careful to make in the different burdens of proof between a government-mandated test as opposed to an employer-mandated test. In general, the elements that must be proven in any drug case are these four: (1) that the Respondent is the person whose name is on the drug-test form, and whose sample was tested; (2) that the test was positive; (3) that proper procedures –i.e. 46 CFR part 16 – were followed; and (4) that the respondent was a user. 

The long-established rule has been that when the drug test was government-mandated [sometimes referred to as a “Part 16 test”, because it is covered by 46 CFR part 16, [and specifically: sec. 16.210 – Pre-Employment; sec. 16.220 – Periodic; sec. 16.230 – Random; sec. 16.240 – Serious Marine Incident; and sec. 16.250 – Reasonable Cause] the Coast Guard needs to prove only the first three elements; and having proven them, benefits from a PRESUMPTION of the final element, proof of drug use. App. Dec. 2704 (FRANKS)(2014) . The presumption of the final element shifts the burden of going forward with additional evidence on drug use to the respondent to prove that he or she was NOT a user. On the other hand, if the drug test is not one of the above five government-mandated tests, but is instead “conducted entirely in accordance with a private marine employer’s internal policies and procedures” NO PRESUMPTION of drug use arises, and the Coast Guard has the burden to prove all four elements of its drug charge, and specifically, the Coast Guard retains the burden of going forward with evidence to prove that the accused was a drug user. DICKERSON, p. 9. 

In previous cases when the drug test was employer-mandated, and accordingly when the Coast Guard had the burden of proving drug use, the accused mariner typically testified with evidence intended to disprove use, such as claims of second-hand consumption, accidental ingestion [the “marijuana brownie” defense] or the basic “I didn’t do it” defense. Coast Guard ALJ’s typically responded to such defenses with predictable skepticism, predictably by discrediting the testimony, or the mariner’s credibility, in order to support a finding that the affirmative testimony offered by the mariner was insufficient to meet the mariner’s burden of proving that he or she was not a drug user. We have frequently wondered: What would happen if the accused mariner elected NOT to testify [after all, the mariner cannot be compelled to testify at a Coast Guard hearing]. Without [arguably] self-serving testimony to discredit, how, then, would the Coast Guard meet its burden of proving use, without its usual benefit of a presumption? USCG v. DAVID DICKERSON is that case, and its outcome is, well, somewhat presumptive. 

DAVID DICKERSON signed his employer’s drug and alcohol free work environment policy in 2013, and submitted to an employer-mandated drug test on May 28, 2015, and tested positive for THC, a marijuana metabolite. Dickerson’s employer received the test results on June 2, 2015 and promptly terminated him. The Coast Guard filed a complaint against Dickerson on September 1, 2015, and the administrative hearing opened on March 10, 2016, in New Orleans. The mariner appeared pro se. He did not testify, and he offered no exhibits in his defense. 

In due course, the Coast Guard offered the first three essential elements of its case: evidence that Dickerson was the person whose name was on the form and who was tested; evidence that the test was positive; and evidence that proper procedures were followed. At this point, because the Coast Guard did not benefit from the presumption which arises in a government-ordered test, it still had the burden of going forward and proving the fourth element: that Dickerson was a “user”. But there was no more evidence. The Coast Guard relied on the forms and test-administrators’ testimony it offered to prove the first three elements, and then rested its case. It did not go forward with any additional evidence to “prove” the mariner was a user.

By our understanding of the law, in order to prove its fourth element, the Coast Guard had to go forward with additional evidence. But that was not to be the case. To quote the Administrative Law Judge, “Because the test here at issue was not a DOT-approved test, no presumption of drug use or addiction obtains.(So far, so good.) However, Respondent elected not to testify under oath. Hence, he did not testify as to facts which may have contradicted the Coast Guard’s proof. Thus, the Administrative Law Judge may, and hereby does, find the Charge proved. See Appeal Decisions 2974 (TINGLEY)(1980); 2266 (BRENNER)(1981).” Put another way, by virtue of the respondent’s refraining from offering testimony contradicting the Coast Guard’s proof, the Coast Guard needed to do nothing more than prove the first three elements in order to meet its burden of going forward with proof of the fourth element.


How is the DICKERSON decision any different than the operation of a rebuttable presumption? A rebuttable presumption is sufficient to establish a prima facie ase so long as there is no substantial evidence to the contrary. Although the burden of proof does not shift, the effect of the prima facie  proof is to shift the burden of going forward with the evidence to the appellant. In DICKERSON, the ALJ found that the first three elements were acceptable as proof of the fourth element simply BECAUSE the mariner “did not testify to facts which contradicted the Coast Guard’s proof”; in other words, because the mariner did not go forward with further evidence. That reasoning looks suspiciously like a requirement that the mariner go forward to prove his innocence – in other words, it looks like a shift of the burden of going forward, a shift which is supposed to operate only in cases where there is a presumption. Here, the ALJ expressly pointed out that “no presumption of addiction or drug use obtains.” DICKERSON at 13. 

Referring to the two cases cited as support by the ALJ casts no light whatsoever upon the ALJ’s legal authority, or logic, for making such a ruling. Neither case is on point. TINGLEY involved an allision with a dock, something long recognized as creating a rebuttable presumption of negligence on the part of the mariner in charge of the vessel. TINGLEY at 8. The Coast Guard offered proof of the allision, and, because of the operation of the presumption, the burden of going forward with further evidence shifted to the mariner. In TINGLEY, the mariner DID go forward with further evidence of the absence of negligence but the ALJ did not consider it persuasive. Id. On appeal, the mariner argued that the ALJ did not give sufficient weight to his additional evidence; to that the Vice Commandant stated: “Absent substantial credible evidence to the contrary, the Administrative Law Judge properly was entitled to rely upon the previously created presumption of negligence. In Appellant’s case, as already discussed, a presumption of negligence properly was created and ultimately relied upon.” TINGLEY, at 8. TINGLEY, clearly, is a case where the ALJ’s decision turned on the operation of a presumption. We do not see how this reasoning can support identically expressed reasoning in DICKERSON where there is no operation of a presumption. 

The second case relied upon by the ALJ in DICKERSON is USCG v. BRENNER, App. Dec. 2266 (1981). In this case the mariner was charged with negligence for running a barge aground outside of the navigable channel. Like DICKERSON, the mariner here offered no testimony and no exhibits, but simply argued that the Coast Guard did not meet its burden of proving negligence. As in TINGLEY, the Coast Guard benefitted from a rebuttable presumption of negligence, triggered in this case because the mariner grounded outside a navigable channel. Here again, the author does not see how citing a case which turns on the operation of a rebuttable presumption supports a legal conclusion that the Coast Guard has met its burden of proof where the ALJ stated that there was no presumption. 

Fortunately, DICKERSON is an ALJ case, with little precedential value. It ought to have none. DICKERSON was not appealed to the Commandant, but had it been it would probably have been overturned. On the law, DICKERSON appears to be a complete violation of App. Dec. 2704 (GREEN) (2014), in which the Vice Commandant expressly states that producing proof of drug use in a case outside Part 16 [in other words, a case where there is no presumption arising as to the fourth element of proving drug use] “presumably necessitates modest additional evidence to prove that the presence of metabolite in a non-Part 16 test means that the mariner used dangerous drugs, absent evidence to the contrary, in addition to evidence linking the results to the mariner and proving the reliability of the test …” etc. GREEN, p 11. GREEN’s mandate requiring two categories of additional evidence [albeit “modest”] could not be clearer. The ALJ in DICKERSON did not follow that mandate.