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Vice Commandant Rejects Hopper Rationale While Declining To Reverse Decision

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As you may recall, American Maritime Safety, Inc. (“AMS”), filed an amicus brief on June 12, 2015, in support of the United States Coast Guard’s (“USCG”) position that the Hopper decision should be reversed.  Hopper had dismissed a USCG license action on the grounds that the USCG failed to prove that the employer’s random selection of the mariner was based on scientifically suitable computer logarithms.

The USCG Vice Commandant issued a decision dated October 12, 2015, that ruled on the USCG’s appeal of the Hopper decision.  The Vice Commandant rejected the USCG’s appeal based on procedural issues surrounding the timing of the USCG’s filing of its appellate brief.  However, the Vice Commandant did offer analysis rejecting the reasoning of the Hopper decision.

The Vice Commandant specifically referenced the AMS amicus brief in its analysis, and relied on case law cited by AMS to reject the heightened evidentiary standard created by the Hopper decision – explaining as follows:  “In a case where no one questions whether there was a properly ordered drug test of the crewmember, it may be sufficient for the Coast Guard to present the testimony of a person, with knowledge of the employer’s drug testing procedures, that the person is familiar with the requirements of 46 C.F.R. § 16.230, and that crewmembers were selected for random testing in accordance with those procedures.”

Hopper, No. 2710 at 7.  The Vice Commandant went on to explain, consistent with the position of AMS and its members, that “[g]enerally, there should be no question about the scientific validity of the selection method if the method is either a random number table or a computer-based random number generator … [and that] [s]omething more than unsupported speculation would be necessary to raise doubts that would justify further probing the issue of scientific validity of such software.” Id. at 8.

In closing, the Vice Commandant indicated that the Hopper decision’s interpretation of the randomness requirement was “too restrictive,” which “would tend to defeat the ability of the Coast Guard to promote a drug-free and safe environment for mariners and the public through the Suspension and Revocation process.” Id. at 11.  The Vice Commandant explained that so long as the selection method is “sufficiently random to limit discretion and insure against manipulation of the results,” the dual purposes of “deterring the use of dangerous drugs by mariners…” and protecting “the Fourth Amendment rights of mariners … [against] abuse of the process,” will have been satisfied.

You can read the entire decision of the Vice Commandant by clicking here:  2710 – Hopper dtd 13 Oct 15.


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