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.