Davis v. Zukunft et al

BRIEF in Opposition

D.N.J.January 13, 2017

PAUL J. FISHMAN United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street, P.O. Box 2098 Camden, NJ 08101 (856) 757-5139 Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : CLINT WALKER DAVIS, JR., : : HONORABLE MARY L. COOPER Plaintiff, : : v. : Civil Action No. 16-1616 (MLC) (DEA) : ADMIRAL PAUL F. ZUKUNFT, : Commandant, United States Coast : Guard, : : Defendant. : : DEFENDANT’S COMBINED BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAUL J. FISHMAN United States Attorney On the brief: JESSICA O’NEILL Assistant U.S. Attorney Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 1 of 20 PageID: 942 i TABLE OF CONTENTS I. INTRODUCTION ............................................................................................... 1 II. ARGUMENT ....................................................................................................... 2 A. The Decision of the Agency Should be Affirmed Because It is Supported by Substantial Evidence .......................................................................................... 2 1. The Court’s Review is Based Solely on the Administrative Record ............ 2 2. Plaintiff’s Contentions Regarding a “Heightened” Duty Are Unsupported 3 3. Plaintiff’s Contentions About YNC Health’s Title, the Selection Process, The Use of Tripler Lab, and MRO Review Are Without Merit .................... 6 B. Even if The Court finds that Plaintiff is Entitled to an Award of Fees, Plaintiff is Not Entitled to the Amount Claimed ............................................................. 8 1. Plaintiff’s Misstates the Coast Guard’s Position on the Prevailing Party Issue ............................................................................................................... 9 2. If the Court Concludes that Plaintiff is Entitled to an Award of Fees, the Court Should Remand for a Determination as to the Amount .................. 10 3. Plaintiff is Not Entitled to an Increase Above the Statutorily-Mandated Rate .............................................................................................................. 11 4. Specific Hours Sought to Which the Coast Guard Objects ........................ 14 III. CONCLUSION .................................................................................................. 16 Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 2 of 20 PageID: 943 ii TABLE OF AUTHORITIES Cases Alphin v. Nat’l Transportation Safety Bd., 839 F.2d 817 (D.C. Cir. 1988) ........ 10, 11 Application of Recurrent Training Center, Inc., DMS No. FAA-2010-0973, 2012 WL 748846 (2012) ....................................................................................................... 13, 14 Cruz v. Comm’r of Social Security, 437 F. App’x. 67 (3d Cir. 2011) .................... 9, 15 California Marine Cleaning, Inc. v. U.S., 43 Fed. Cl. 724 (1999) ............................ 13 Ebershoff v. Whittington, Docket No. 71-EAJA-SE-9263, 1989 WL 267571 (NTSB Mar. 3, 1989) ............................................................................................................ 3, 4 EuroPlast, Ltd. v. NLRB, 33 F.3d 16 (7th Cir. 1994) ................................................. 2 Former Employees of BMC Software, Inc. v. U.S. Secretary of Labor, 519 F. Supp. 2d 1291 (C.I.T. 2007) .................................................................................................... 4, 5 Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) ................................................... 12 Hensley v. Eckerhart, 461 U.S. 424 (1983) .................................................................. 9 Mendenhall v. Nat’l Transp. Safety Bd, 216 F.3d 464 (9th Cir. 2000) .................... 12 Petersen v. Hinson, 1996 WL 616333 (NTSB Oct. 7, 1996) ........................................ 3 Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990) ................................................. 11 Statutes 5 U.S.C. § 504 ................................................................................................... 2, 11, 12 28 U.S.C. § 2412 ................................................................................................... 11, 12 Regulations 46 C.F.R. § 6.11 ............................................................................................. 11, 13, 14 46 C.F.R. Part 16 ......................................................................................................... 8 46 C.F.R. § 16.201 ........................................................................................................ 8 46 C.F.R. Part 40 ......................................................................................................... 8 Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 3 of 20 PageID: 944 1 I. INTRODUCTION Defendant Admiral Paul F. Zukunft, Commandant of the United States Coast Guard (“Defendant” or “Coast Guard”), submits this brief in opposition to Plaintiff’s motion for summary judgment, as well as in support of Defendant’s own motion for summary judgment. Plaintiff appeals the decision of the Coast Guard to deny his application for attorney’s fees incurred defending himself at a suspension and revocation proceeding involving his merchant mariner’s credential. An Administrative Law Judge (“ALJ”) of the Coast Guard found that Plaintiff was not entitled to these fees because the Coast Guard’s position in the suspension and revocation proceeding was substantially justified. The ALJ’s decision was upheld on appeal in the Coast Guard’s administrative appeals process because the ALJ’s decision was supported by the evidence in the record. On December 5, Defendant filed its motion for summary judgment, asking the Court to affirm the decision below because the ALJ’s initial decision, and the Coast’s Guard’s opinion on the appeal of that decision, are supported by substantial evidence. ECF No. 13. On December 22, Plaintiff filed his opposition to that motion. ECF No. 14. On December 23, Plaintiff filed a motion for summary judgment, contending that the decision of the agency should be overturned. ECF No. 15. Because the two pending motions are, effectively, cross-motions that raise the same issues, Defendant submits this combined brief—to support its motion and respond in opposition to Plaintiff’s motion—for efficiency and the Court’s convenience. Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 4 of 20 PageID: 945 2 II. ARGUMENT A. The Decision of the Agency Should be Affirmed Because It is Supported by Substantial Evidence The Coast Guard refers to, and incorporates herein, the arguments and reasons laid out in its brief in support of its motion for summary judgment regarding the substantial evidence supporting the ALJ’s decision, and the Commandant’s decision on appeal, that the Coast Guard’s position in the S&R proceeding was substantially justified. See Def.’s Br. Section A (ECF No. 13). The Coast Guard responds here to several specific points raised by Plaintiff in his motion for summary judgment as well as in his opposition to the Coast Guard’s motion. 1. The Court’s Review is Based Solely on the Administrative Record A reviewing court may disturb the agency’s determination with respect to an attorney’s fees award only “if the court finds that the failure to make an award of fees and other expenses…was unsupported by substantial evidence.” 5 U.S.C. § 504(c)(2); EuroPlast, Ltd. v. NLRB, 33 F.3d 16, 17 (7th Cir. 1994). The court’s review is confined to the administrative record. 5 U.S.C. § 504(c)(2) (“The court’s determination on any appeal heard under this paragraph shall be based solely on the factual record made before the agency.”). Though the parties have provided extensive statements of material facts, disputes of fact included within those statements should not prevent a grant of summary judgment. Rather, the question before the Court is whether, based on the administrative record, substantial Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 5 of 20 PageID: 946 3 evidence supported the ALJ’s decision, and the Commandant’s affirmance of that decision, that the Coast Guard’s position was substantially justified. 2. Plaintiff’s Contentions Regarding a “Heightened” Duty Are Unsupported Plaintiff contends that the Coast Guard is subject to a “heightened” burden because (1) it was conducting a drug test and (2) it was Plaintiff’s employer and also the “prosecuting agency.” Pl.’s Br. in Support of Mot. For Summ. J. at 18; Pl.’s Opp. at 2, 6. To support this contention regarding a “heightened” duty, Plaintiff cites three cases. None are binding on this Court, and none support Plaintiff’s contention of a heightened duty. They stand instead for the basic proposition that an agency must have a reasonable factual basis for its actions—a proposition which the Coast Guard does not dispute and which it contends is met here. The first, Petersen v. Hinson, 1996 WL 616333 (NTSB Oct. 7, 1996), was addressed in the Coast Guard’s brief in support of its motion. See Def.’s Br. at 12-14 (ECF No. 13). Plaintiff continues to overread this case, in which the agency in question “summarily and unilaterally discounted” evidence in its possession prior to the filing of the complaint that undermined its conclusions about drug test results. 1996 WL 616333, at *3. Here, the Coast Guard did not “discount” any of Plaintiff’s evidence, such as the results of the hair and polygraph tests, but instead considered it and did not credit it. As a result, the result in Petersen is distinguishable from the result here. The second case, Ebershoff v. Whittington, Docket No. 71-EAJA-SE-9263, 1989 WL 267571 (NTSB Mar. 3, 1989), makes no reference to any heightened duty Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 6 of 20 PageID: 947 4 or special duty when the employer is also taking the administrative action in question. In Ebershoff, the ALJ found that the position of the agency in question (the Federal Aviation Administration) was not substantially justified because its “case had, at best, a weak and tenuous basis.” Id. at * 1. Ebershoff is therefore distinguishable from this case, where the Coast Guard had a strong factual basis for its complaint and where it was only after the examination of the bottle on the eve of the hearing, coupled with the testimony of Plaintiff and YN2 Eidschun at the hearing, that the mix-up of the sample bottles came to light. The third case Plaintiff points to is Former Employees of BMC Software, Inc. v. U.S. Secretary of Labor, 519 F. Supp. 2d 1291 (C.I.T. 2007). In Former Employees, plaintiffs had applied to the Department of Labor for benefits under a program designed to assist workers who had lost their jobs as a result of shifts in production overseas. Id. at 1301-02. The Department had initially denied this application, denied a request for reconsideration of the denial, and then, after the plaintiffs filed a complaint in federal court, engaged in a protracted process of reconsideration and re-investigation, at the conclusion of which benefits were granted. Id. at 1292-1300. Again, this case makes no reference to any heightened duty or special duty when the employer is also taking the administrative action in question. Instead, the Court in Former Employees found that the agency had not conducted an adequate investigation before the complaint was filed because the agency had denied plaintiff’s application based on only “vague or noncommittal” information provided by their former employer, without appropriately seeking or Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 7 of 20 PageID: 948 5 reviewing information from the plaintiffs. Id. at 1306-1310. The agency’s actions in Former Employees were markedly different than those of the Coast Guard here, where the Coast Guard conducted an investigation, including convening an Administrative Separation Board, giving Plaintiff an opportunity to cross-examine witnesses against him and to present evidence on his own behalf, and evaluating that evidence before initiating the S&R proceeding. The result in Former Employees is therefore distinguishable from the result here. Before bringing the S&R complaint, the Coast Guard did conduct an investigation. That investigation, along with the positive drug test result and the Coast Guard’s final action to separate Davis for misconduct based on drug use, provided the factual basis for the S&R complaint. See AR 0260-0261 (inclusion of the Coast Guard final action as an exhibit at the S&R hearing). Whether the agency’s factual basis was substantially justified depends on whether that factual basis was reasonable in light of the known or knowable facts at the time. There was no evidence before the filing of the complaint casting any doubt on the reliability of the testing procedure. Further, as discussed above, until the day before the S&R hearing, there was no reason to believe that the urinalysis procedures had not been properly followed or that it was not Davis’s urine in the specimen bottle that tested positive for cocaine metabolites. When the evidence and testimony at the S&R hearing tended to demonstrate otherwise, the Coast Guard sought a continuance of the proceedings and ultimately moved to withdraw the S&R complaint. As a result, the ALJ correctly found that the Coast Guard’s actions were substantially justified. Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 8 of 20 PageID: 949 6 3. Plaintiff’s Contentions About YNC Health’s Title, the Selection Process, The Use of Tripler Lab, and MRO Review Are Without Merit Plaintiff raises a laundry list of issues with the testing procedure that he contends invalidate the testing results. These issues are not relevant and are without merit. First, Plaintiff contends that YNC Health was not authorized to supervise urinalysis specimen collection. Pl.’s Br. in Support of Mot. for Summ. J. at 9; Pl.’s Opp. at 8-9. This contention is unsupported. As YNC Heath explained in her testimony, she is designated as an “alternate urinalysis coordinator.” A primary urinalysis coordinator is designated in Sector New York, and YNC Heath supports that coordinator by conducting urinalysis coordination for units in Sandy Hook and other locations within Section New York. AR0874, AR0877-878. Nothing in the Manual prevents this delegation of responsibilities within a large sector; the Manual specifically contemplates the use of alternate urinalysis coordinators. At the time of the hearing, YNC Heath estimated that she had coordinated about 20 urinalysis collections. AR0882. Plaintiff additionally asserts that the Manual at issue was “brand new” and contained “new policies and procedures for collection of urine specimens.” The record does not indicate that anything about the policies and procedures was “new.” What the record does make clear is that the Coast Guard Drug and Alcohol Manual replaced Chapter 20 of the Personnel Manual. AR 0390- 91, ¶¶ 3,6. The change was made to allow for more expedited review of updates and promulgation of policy changes to the various chapters of the Personnel Manual Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 9 of 20 PageID: 950 7 which over the years had become large and cumbersome. Id. Changes were made to reflect the current Coast Guard organizational structure, but there were no substantive changes to the urinalysis process. Id. YNC Heath was trained and experienced in urinalysis collection, and it was permissible for her to supervise the urinalysis collection in question. Plaintiff also contends that the method by which he was selected for urinalysis was invalid and should result in the test results’ dismissal. Pl.’s Br. in Support of Mot. for Summ. J. at 8; Pl.’s Opp. at 10-11. Plaintiff is mistaken. The selection of members for testing must be random; no particular method of selection is prescribed. See AR0432. There is no requirement to select only one number, and no requirement to apply that number to Social Security numbers instead of employee IDs. The Manual specifically notes that it provides only “suggested means of developing a random selection” and that “commands may use other methods if they offer the same degree of randomness.” AR0432. Plaintiff’s contentions in this regard have no merit. Plaintiff additionally argues that the use of the Tripler Army Medical Center Forensic Toxicology Lab was unacceptable because Tripler is a “[n]on-HHS certified laboratory. Plaintiff points to no authority supporting the proposition that Tripler could not evaluate the samples, and, in fact, the Manual directs the use of the Tripler lab to evaluate urinalysis samples. AR0445. Finally, Plaintiff argues that the lack of review by a Medical Review Officer (“MRO”) invalidates the urinalysis, and refers the Court to a number of regulations Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 10 of 20 PageID: 951 8 in 49 C.F.R. Part 40 concerning the role of the MRO. This is a variant of Plaintiff’s previously presented argument that the Coast Guard was required to follow the drug-testing procedures established by 40 C.F.R. Part 16, which itself, at 46 C.F.R. § 16.201(a) provides that “[c]hemical testing of personnel [i.e. merchant mariners] must be conducted as required by this subpart and in accordance with the procedures detailed in 49 C.F.R. Part 40.” The Coast Guard was not required to adopt the procedures at 49 C.F.R. Part 40 because the test here was not ordered under 46 C.F.R. Part 16; Plaintiff was tested in his capacity as a member of the Coast Guard. Plaintiff does not contend, nor could he, that the Coast Guard was not permitted to require drug testing of its members. As a result, the Coast Guard could, and did, subject him to testing under the Coast Guard’s own drug testing policy and standards, and so review by an MRO was not required. See Def.’s Br. at 7-8. For the reasons highlighted above, and for the arguments and reasons laid out in its brief in support of its motion for summary judgment regarding the substantial evidence supporting the ALJ’s decision, and the Commandant’s decision on appeal, the Coast Guard asks the Court to find that the Coast Guard’s position in the S&R proceeding was substantially justified. B. Even if The Court finds that Plaintiff is Entitled to an Award of Fees, Plaintiff is Not Entitled to the Amount Claimed The Coast Guard continues to assert, as argued in its motion for summary judgment and as further discussed below, that the decision by the ALJ denying Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 11 of 20 PageID: 952 9 Plaintiff’s fee application, and the Commandant’s opinion on appeal of that decision, were supported by substantial evidence. However, should the Court find that Plaintiff is entitled to an award of fees, Plaintiff is not entitled to the amount claimed, and his arguments to the contrary should not be credited. 1. Plaintiff’s Misstates the Coast Guard’s Position on the Prevailing Party Issue Plaintiff, in his opposition to the Coast Guard’s motion, states that the Coast Guard claims that he is not entitled to fees associated with the EAJA litigation because he did not prevail below on the EAJA claim. (Pl.’s Br. in Opp. At 23.) Plaintiff misstates the Coast Guard’s position. The ALJ found, and the Commandant affirmed, that Plaintiff was the prevailing party in the underlying S&R proceeding. That issue is not in dispute. See Responsive Statement of Material Facts (“RSOF”) ¶¶ 104-105. Should the Court find that Plaintiff is entitled to an award of fees, Plaintiff will be able to seek fees he incurred in the pursuit of the EAJA application as part of that award. But see Cruz v. Comm’r Soc. Sec., 437 F. App’x. 67, 70 (3d Cir. 2011) (finding that district court may consider need to impose some degree of proportionality between fees for merits litigation and fees for fee litigation). However, a party is not entitled to fees associated with discrete claims on which that party failed to prevail. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (“[W]ork on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved. . . [T]herefore no fee may be awarded for services on the unsuccessful claim.”) (internal citation omitted). Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 12 of 20 PageID: 953 10 Plaintiff seeks the fees detailed in his supplemental and second supplemental certifications for time spent after the adjudication on three specific issues: his opposition to the Coast Guard’s motion for an extension of time to respond to Plaintiff’s fee application, his motion for the issuance of a subpoena for the contents of the Coast Guard’s internal investigation, and his application for further proceedings to add to the record for the fee application. See Statement of Material Facts Not in Dispute ¶¶ 93-99. The ALJ ruled against Plaintiff on all three issues. As a result, should the Court find that Plaintiff is entitled to an award of fees, Plaintiff should not be awarded the fees associated with the pursuit of these discrete claims on which he did not prevail. 2. If the Court Concludes that Plaintiff is Entitled to an Award of Fees, the Court Should Remand for a Determination as to the Amount Should the Court find that Plaintiff is entitled to a fee award, Plaintiff contends that the Court should simply determine the amount and award it to him. The issue is not, as Plaintiff puts it, whether this Court is “capable of evaluating” the reasonableness of the fees in the first instance; the question is whether it is the role of the District Court to evaluate the reasonableness of the fees sought in the first instance. Because the majority of those fees represent time incurred in administrative proceedings before an administrative law judge, it is appropriate for that judge to conduct such an evaluation. Alphin v. Nat’l Transportation Safety Bd., 839 F.2d 817, 822-23 (D.C. Cir. 1988) (remanding to agency to determine at what Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 13 of 20 PageID: 954 11 point reliance on specific report was no longer substantially justified and therefore fees appropriate). On remand, it is Plaintiff’s burden to demonstrate that the requested fees are reasonable. 5 U.S.C. § 504(b)(1)(a) (defining fees for the purposes of award to be “reasonable attorney’s fees”); Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990) (holding that the burden of proving reasonableness rests with the fee applicant); 49 C.F.R. § 6.11(c) (listing factors administrative law judge shall consider in determining the reasonableness of the fee). 3. Plaintiff is Not Entitled to an Increase Above the Statutorily- Mandated Rate As argued extensively in the Coast Guard’s brief in support of its motion for summary judgment, Plaintiff is not entitled to an increase above the rate of $125 per hour, as provided in 5 U.S.C. § 504. See Def. Br. at 15-19. Plaintiff’s arguments to the contrary run counter to the plain language of the statute. Contrary to Plaintiff’s contention, the statutory language at 28 U.S.C. § 2412 and 5 U.S.C. § 504 differs with regard to when a special factor or a cost of living adjustment may be applied to increase the statutory rate. The statute applicable to proceedings before the District Courts, 28 U.S.C. § 2412, provides: [t]he amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that…(ii) attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A) (emphasis added). Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 14 of 20 PageID: 955 12 That is not the statute applicable to the proceedings underlying here. The applicable statute here is 5 U.S.C. § 504, which provides: [t]he amount of fees awarded under this section shall be based upon prevailing market rates for the kind and quality of the services furnished, except that…(ii) attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee. 5 U.S.C. § 504(b)(1)(A) (emphasis added). The different language as applicable to fee applications for District Court proceedings makes clear that, in such proceedings, the court can determine that a cost of living adjustment or special factor can apply. In fee applications stemming from adjudicative proceedings before agencies, only the agency can determine, in advance, by regulation, that a cost of living adjustment or special factor can apply. Mendenhall v. Nat’l Transp. Safety Bd, 216 F.3d 464, 467-68 (9th Cir. 2000) (overruled on other grounds by Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012). In Mendenhall, the Ninth Circuit expressly concluded that because 5 U.S.C. § 504 applied exclusively to fees incurred before the administrative agency, recovery was “limited by the statutory cap in force.” Id. at 469. The same result should apply here to mean that Plaintiff is limited, to the extent he is awarded any fees, to the statutory rate of $125.1 1 The Coast Guard notes that, to the extent the Court evaluates the reasonableness of the fees as sought in Plaintiff’s billing records, as discussed further below, the records include hourly entries billed at varying rates, some of which exceed the $200 per hour Plaintiff seeks. As a result, should the Court decide to award Plaintiff fees, the total amount sought based on the billing records is in any event not the correct amount. Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 15 of 20 PageID: 956 13 Plaintiff’s arguments regarding the specialization of maritime attorneys are beside the point, as it is undisputed that the agency has not enacted any regulations permitting a higher fee to apply. See 49 C.F.R. § 6.11. The applicable regulations instead affirm the existence of a firm $125 per hour cap and make no provision for any exception—whether for special factors, cost of living adjustments, or inflation. 49 C.F.R. § 6.11(b) (“No award for the fee of an attorney or agent under these rules may exceed $125.00 per hour.”). The agency has made no adjustment to the fee cap “by regulation,” and so the statutory maximum caps the maximum available hourly rate. Plaintiff cites California Marine Cleaning, Inc. v. U.S., 43 Fed. Cl. 724 (1999) and Application of Recurrent Training Center, Inc., DMS No. FAA-2010-0973, 2012 WL 748846 (2012) to support his contention that a cost of living adjustment can apply in the absence of an authorizing regulation. Neither case provides the support Plaintiff seeks. California Marine Cleaning involved a bid protest brought in the Court of Federal Claims, and as such its application for fees was brought under 28 U.S.C. § 2412. Cal. Marine Cleaning, 43 Fed. Cl. at 725, 727. Plaintiff in that case had also engaged in an administrative action before the GAO; those fees were disallowed, and the Court considered only the portion of the fees clearly attributable to the civil action in federal court under 28 U.S.C. § 2412. Id. at 731-32. It is therefore inapposite here. Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 16 of 20 PageID: 957 14 In Application of Recurrent Training Center, the agency (the Federal Aviation Administration) itself authorized the application of a cost of living adjustment, noting that its regulations were silent on the issue but asking the Court to apply a cost of living adjustment to the hourly rate. 2012 WL 748846 at *5. As a result, Recurrent Training Center is distinguishable from this case, in which the agency’s regulations firmly reiterate the $125 statutory cap and the agency opposes the application of a cost of living adjustment as contrary to its regulations. 49 C.F.R. § 6.11(b). 4. Specific Hours Sought to Which the Coast Guard Objects Should the Court decide to award Plaintiff fees, and to evaluate the reasonableness of the fees sought by Plaintiff in the first instance rather than remand, the Coast Guard objects to specific hours sought by Plaintiff as unreasonable.2 The Court may exclude hours that were not reasonably expended because they were unnecessary, redundant, or otherwise unnecessary. Rode, 892 F.2d at 1183. The Coast Guard details specific hours to which it objects as unreasonable below. First, the Coast Guard objects to the fees sought for the three specific claims before the ALJ discussed above. Section B.I, supra. These three claims represent a 2 Plaintiff did not file his itemized billing records and instead separately submitted them to the Court and to counsel for the Coast Guard, noting in a footnote that the bills are confidential information. If Plaintiff wishes to keep the details of his attorneys’ fees and costs confidential, he should submit a motion to seal these materials, pursuant to Local Civil R. 5.3(c), including an affidavit of counsel providing the basis for sealing the records. Unless the Court finds that the applicable standard is met, the Coast Guard does not believe that sealing is warranted here. Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 17 of 20 PageID: 958 15 total of 46.9 hours to which the Coast Guard objects. Pl.’s Ex. C at 14-16 (Slip ID 5700-6166, less hours billed for entries on those pages unrelated to the three specific claims). Second, the Coast Guard objects to the total amount of hours Plaintiff spent on his initial EAJA fee application as unreasonable because they are excessive. According to the records submitted by Plaintiff, counsel spent 86.8 hours, across three timekeepers, on the initial fee application following the ALJ’s dismissal of the S&R complaint. Pl.’s Ex. C at 9-14 (Slip ID 5345-5641, representing time billed from May 22, 2013 to June 20, 2013, less any time billed for hours incurred before May 22, 2013). For example, the records include over 10 hours spent on research regarding cost of living adjustment and special factors. Pl.’s Ex. C at 10 (Slip ID 5437-5439). The records also include 17.5 hours (over two timekeepers) for finalizing the application. Id. at 12 (Slip IS 5502, 5504-5505). In contrast, counsel spent 166.9 hours on the entirety of the merits of the litigation. Pl.’s Ex. C at 1-9 (Slip ID 4785-5243). The Coast Guard contends that this number of total hours— over half the total spent on the merits of the S&R proceeding—for a fee application is excessive because it is unreasonably high and disproportionate with the amount of time spent on the merits. See, e.g., Cruz, 437 F. App’x. at 70 (affirming district court’s decision to disallow reimbursement for hours spent in fee litigation as disproportionate to the time spent on the merits). As a result, the Coast Guard contends that this category of hours should be reduced. Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 18 of 20 PageID: 959 16 Third, the Coast Guard objects to the inclusion of the hours spent on a separate complaint for mandamus filed in the United States District Court on February 3, 2016, and voluntarily dismissed on March 22, 2016. See Compl. Ex. M (Docket No. 16-cv-618). This complaint, which represents 7.5 hours, sought to compel the Commandant to issue a decision on Plaintiff’s then-pending appeal of the ALJ’s decision. Pl.’s Ex. C. at 17- (Slip ID 14478-14809). The Coast Guard did not respond to that complaint, the Commandant’s decision issued without reference to this separate complaint, and there is no indication that this separate complaint in any way influenced the Commandant’s decision on appeal (or even the timing of its issuance). As a result, the Coast Guard objects to the recoverability of these hours. (Even if the hours spent on this Complaint were recoverable, Plaintiff double-counted the District Court filing fee. Pl.’s Ex. C at 17 (Slip ID 14597, 14605).) For the reasons detailed above, as well as for the reasons set forth in the Coast Guard’s brief in support of its motion for summary judgment, the Coast Guard asks that, to the extent the Court determines that Plaintiff is entitled to an award of fees, the Court find that Plaintiff is not entitled to the amount he seeks and remand to the agency for a determination of a reasonable attorney’s fee in the first instance. III. CONCLUSION As set forth above, and as previously set forth in the Coast Guard’s brief in support of its motion for summary judgment, substantial evidence supports the Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 19 of 20 PageID: 960 17 ALJ’s determination that Plaintiff is not entitled to an award of fees under the EAJA for this proceeding. As a result, the Coast Guard respectfully renews its request that the Court grant its motion for summary judgment and affirm the ALJ’s and the Commandant’s decisions. In the alternative, if the Court concludes that Plaintiff is entitled to an award of fees, the Coast Guard asks the Court to find that Plaintiff is not entitled to the amount he seeks for the reasons detailed above, and to remand to the agency for a calculation of a reasonable fee award in the first instance. PAUL J. FISHMAN United States Attorney /s/ Jessica R. O’Neill By: JESSICA R. O’NEILL Assistant U.S. Attorney Dated: January 13, 2017 Case 3:16-cv-01616-MLC-DEA Document 16 Filed 01/13/17 Page 20 of 20 PageID: 961 PAUL J. FISHMAN United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street, P.O. Box 2098 Camden, NJ 08101 (856) 757-5139 Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : CLINT WALKER DAVIS, JR., : : HONORABLE MARY L. COOPER Plaintiff, : : v. : Civil Action No. 16-1616 (MLC) (DEA) : ADMIRAL PAUL F. ZUKUNFT, : Commandant, United States Coast : Guard, : : Defendant. : : DEFENDANT’S RESPONSIVE STATEMENT OF MATERIAL FACTS Defendant Admiral Paul F. Zukunft, Commandant of the United States Coast Guard, submits this combined responsive statement of material facts in response to (1) Plaintiff’s Statement Of Material Facts In Support Of His Motion For Summary Judgment as well as in response to (2) Plaintiff’s Supplemental Statement Of Material Facts In Opposition To Defendant’s Statement Of Material Facts. Responsive Statement to Plaintiff’s Statement of Material Facts from Plaintiff’s Motion for Summary Judgment 1. The Commandant of the United States Coast Guard (Commandant) issued a Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 1 of 27 PageID: 962 2 new Instruction Manual entitled “Coast Guard Drug and Alcohol Abuse Program” (Manual) on September 29, 2011. Coast Guard Answer to Plaintiff’s Complaint, Docket Entry 6 ¶ 5. Response: Not disputed. 2. The Manual established the new policies and procedures concerning the administration of the Coast Guard’s drug and alcohol abuse program, including the required procedures for collecting urine specimens during drug testing of Coast Guard members. Id. ¶ 6. Response: Not disputed. 3. The Manual was binding on Coast Guard personnel. Id. ¶ 7. Response: Not disputed. 4. The Manual provides that Urinalysis Coordinators shall supervise all specimen collections and make all urinalysis ledger entries. AR0428. Response: Not disputed. 5. The Manual further provides that the “. . . alternate provides additional confirmation that proper procedures are followed, which is critical in an . . . administrative proceeding.” AR0428. Response: Not disputed. 6. The Manual recognizes that following proper procedures is critical in administrative proceedings. Id. Response: Not disputed. 7. The Manual recommends that two members participate in the collection -- to provide additional confirmation that proper procedures are followed. Id. Response: Disputed as unclear and to the extent that the statement suggests both a Urinalysis Coordinator and Alternate Urinalysis Coordinator are recommended during urinalysis testing. It is not disputed that a urinalysis coordinator, observer, and member perform obligations during a urinalysis. AR0432-35. 8. Davis was an active duty Coast Guard Petty Officer stationed at Coast Guard Station Sandy Hook. AR0002. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 2 of 27 PageID: 963 3 Response: Not disputed. 9. As an active duty member of the Coast Guard, Davis was subject to urinalysis drug testing. AR0399. Response: Not disputed. 10. The Manual required annual training of Units on its contents. AR0403. Response: Not disputed. 11. Davis was never trained on the new procedures of the September 29, 2011 Manual prior to the January 11, 2012 drug test. Response: Unknown. This information is not part of the record. Further, disputed to the extent the statement implies that the two versions of the manual employ different procedures. 12. Davis had served in the Coast Guard for ten years as of January 11, 2012. Docket Entry 6 ¶ 9. Response: Not disputed. 13. [sic] Response: None. 14. The urinalysis testing on January 11, 2012 was overseen by Chief Petty Officer ("YNC") Kori Heath (Heath), who was officially designated an “Alternate Urinalysis Coordinator.” AR0231. Docket Entry 13--‐2 ¶ 15. Response: Not disputed. 15. Heath was not designated as a “Urinalysis Coordinator.” AR0939. Response: Not disputed. 16. According to the Manual, Heath was not authorized to collect specimens or complete the Urinalysis Ledger. AR0940. Response: Disputed. Chief Petty Officer Heath was authorized by the Coast Guard command to collect specimens and complete the Urinalysis Ledger. AR 231, AR935-40. 17. The Manual requires “Urinalysis Coordinators” be designated in writing. AR0938, AR0207. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 3 of 27 PageID: 964 4 Response: Not disputed. 18. No member designated as a “Urinalysis Coordinator” was present on January 11, 2012 to supervise the collection of Davis’ urine specimen. Response: Disputed in that YNC Heath served as the urinalysis coordinator. Not disputed that her designation letter was titled “Alternate Urinalysis Coordinator,” not “Urinalysis Coordinator.” 19. On January 11, 2012, Davis was selected for urinalysis testing along with eleven other Coast Guard members. AR0234-45. Response: Not disputed. 20. The Manual states, “one number was to be selected and applied against the member’s social security numbers to identify who would be selected for testing.” AR0432. Response: Disputed. AR0432 does not contain this statement, nor does the manual proscribe a specific method for the random selection of members for testing. Instead, the Manual provides “suggested means of developing a random selection” and notes that “commands may use other methods if they offer the same degree of randomness.” AR0432. 21. The first number selected was 6. AR0234. Response: Not disputed. 22. Davis’ social security number ends in the number 3. AR0238. Response: Not disputed. 23. YNC Heath selected a total of five numbers, 6,0,1,4,2 for testing. AR0234. Response: Not disputed. 24. YNC Heath applied the selected numbers to the Employee ID numbers listed on personnel access list, not the members’ social security numbers. AR234-36. Response: Not disputed. 25. Davis’ Employee ID number ends in 2, coincident with the last number selected by YNC Heath. AR0232. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 4 of 27 PageID: 965 5 Response: Not disputed. 26. Davis submitted a urine sample on January 11, 2012. AR0242. Response: Not disputed. 27. YNC Heath testified that after she was designated as an Alternate Urinalysis Coordinator she received training in November 2010 and January 2011, dates that precede publication of the new Manual. AR0880-81. Response: Not disputed. 28. YNC Heath’s training as to conducting drug testing consisted of observing one collection and being observed one time by her trainer. AR0943. Response: Disputed. YNC Heath also received instructions from Chief George Ott, the primary coordinator at the time she was designated, and she reviewed the applicable manuals and instruction materials. AR0880. 29. YNC Heath’s training was performed using the old procedure in the Personnel Manual “M1000.6a series.” AR0944, AR0231. Response: Disputed to the extent the statement implies that the two versions of the manual employ different procedures; they do not. In September 2011, the Coast Guard eliminated the Coast Guard Personnel Manual and reissued it as a set of manuals, one of which was the new Coast Guard Drug and Alcohol Manual. The Coast Guard Drug and Alcohol Manual replaced Chapter 20 of the Personnel Manual. The change was made to allow for more expedited review of updates and promulgation of policy changes to the various chapters of the Personnel Manual. The Drug and Alcohol Manual contained no substantive differences from Chapter 20 of the canceled Personnel Manual in urinalysis collection procedures. AR 391-392. 30. YNC Heath received no training in urinalysis collection after publication of the new Manual and before the January 11, 2012 drug test. AR0880-81, AR0944. Response: Disputed. YNC Heath read the new Manual. 31. YNC Heath reviewed the manual once before the test of January 11, 2012. AR0934. Response: Not disputed. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 5 of 27 PageID: 966 6 32. YNC Heath testified that the September 11, 2012 drug test was the first one done at Station Sandy Hook using the new Manual. AR0942. Response: Disputed only to the extent the statement implies that the two versions of the manual employ different procedures; they do not. 33. Tripler Lab evaluated the samples and reported back to Station Sandy Hook that one sample tested positive for cocaine metabolites. AR0247-52. Response: Not disputed. 34. Davis was informed by his Commanding Officer on January 31, 2012 that he had tested positive for cocaine metabolites. Docket Entry 6 ¶ 11. Response: Not disputed. 35. Davis vehemently denied that he had ever used cocaine. Id. ¶ 12 Response: Not disputed. 36. The Manual requires that where evidence of a possible drug incident includes a positive urinalysis result, the command should also determine whether the urinalysis was conducted in accordance with the Manual. Id. ¶ 8., AR0423 Response: Not disputed. 37. When the positive urinalysis was reported, The Manual mandated that the command investigate and determine that the procedures used for collecting the urine specimen were in accordance with the Manual’s procedures and whether the collection and chain of custody procedures were properly followed. Id. ¶ 13. AR0423 Response: Not disputed. 38. Coast Guard at all relevant times possessed the urinalysis ledger and the urinalysis checklists from the January 11, 2012 drug test. AR0242, AR0380, AR0388 Response: Not disputed. 39. Coast Guard at all relevant times controlled the specimen bottle alleged to contain Davis’ January 11, 2012 urine specimen. AR0101-02 Response: Disputed to the extent the statement implies that the Coast Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 6 of 27 PageID: 967 7 Guard investigators or counsel possessed the specimen bottle; the bottle was in the custody of the Tripler Army Medical Center Forensic Toxicology Drug Testing Laboratory. Further, until the S&R hearing, there was no indication that the urinalysis procedures were not properly followed. Accordingly, it was believed that Davis controlled the specimen bottle from the time he left the urinalysis table with it, provided a sample, returned it to the coordinator, and certified that his specimen was in the bottle containing his identifying information. AR 239, AR 432-435. 40. YNC Heath continued to be an active duty member of the Coast Guard from the time of the initial report of a positive drug test until trial in the S&R proceeding. Response: Not disputed. 41. The Coast Guard Investigative Service (CGIS) completed an investigation. AR0814-52. Response: Not disputed. 42. An Administrative Separation Board was convened and heard evidence concerning the facts and circumstance of the positive urinalysis test for cocaine on January 11, 2012. AR0583. Response: Not disputed. 43. S/A HARRIS testified at the ADSEP hearing that the role of CGIS is not to determine if a drug incident actually occurred, but to determine if other members of the Unit are involved in the use or supply of other prohibited substances. AR0586. Response: Not disputed. 44. CWO Loining also testified at the ADSEP hearing that CGIS’ investigation was to uncover other crimes. AR1051. Response: Not disputed. 45. The CGIS investigation did not even include an interview with YNC Heath, who was the collector for the January 11, 2012 drug test. Docket Entry 6 ¶ 111. Response: Not disputed. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 7 of 27 PageID: 968 8 46. CWO Loining testified that, except for the positive drug test, CGIS did not report any other evidence of drug use by Davis. AR1039-40. Response: Not disputed. 47. CWO Loining testified at the S&R hearing that there was no other evidence of drug use by Davis. AR01031, AR1039. Response: Not disputed. 48. Coast Guard offered no testimony at the ADSEP hearing as to the procedures followed by YNC Heath in collecting Davis’ January 11, 2012 urine sample. Response: Disputed. CWO Loining testified as to the random selection of members for the urinalysis. The Manual was also admitted into evidence. AR0585. 49. Davis presented evidence to the ADSEP Board in the form of a hair drug test that supported Davis’ contention that he had not used cocaine during the time in question. Exhibit D; Negative Hair Drug Screen. AR0596. Response: Not disputed. 50. Davis also presented evidence to the ADSEP Board in the form of a lie detector test that supported his contention that he had never been a user of cocaine. Exhibit E; Polygraph Report. AR0594. Response: Not disputed. 51. The ADSEP Board admits that it was presented with two conflicting drug tests. AR0596 Response: Not disputed. 52. On December 18, 2012 the ADSEP Board’ recommendation that Davis be given a general discharge for misconduct due to involvement with drugs was approved by the Coast Guard personnel office. AR0260. Response: Not disputed. 53. Separate from his status as an active duty member of the Coast Guard, Davis possessed a merchant mariner officer’s credential. AR0164, Docket Entry 13-‐2 ¶ 39--40. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 8 of 27 PageID: 969 9 Response: Not disputed. 54. Coast Guard filed a Suspension and Revocation (S&R) complaint against Davis’ Merchant Mariner Credential on February 11, 2013 on the basis of the urinalysis evidence. Docket Entry 6 ¶ 39. Response: Not disputed. 55. The positive test result from January 11, 2012 was Coast Guard’s evidence of drug use in the S&R proceeding. Id. ¶ 74. Response: Not disputed. 56. The S&R hearing record reveals that Coast Guard’s S&R prosecutor did not interview any witnesses before the S&R Complaint was filed. Id. ¶ 129. Response: Not disputed. 57. Coast Guard admits that aspects of the collection of Davis’ specimen were not in accordance with the Manual. Id. ¶ 15. Response: Not disputed. 58. Coast Guard admits that a procedural error occurred in the collection of urine samples on January 11, 2012. Id. ¶ 72. Response: Not disputed. 59. Contrary to the Manual’s requirements, YNC Heath wrote Davis’ social security number on a label but did not have Davis or his Observer initial the label at that time, or most importantly, place the label on the sample bottle; instead leaving the label sheet with Davis’ social security number on her table along with all the labels of other members who submitted to urinalysis drug testing that day. AR0981, AR1293. Response: Not disputed that YNC Heath took the stated actions. 60. The Manual required that YNC Heath write the member’s social security number on the bottle label and to have the member initial the bottle label confirming his social security number, the Observer was to then initial the bottle label, then the Collector was to apply the label to the sample bottle and hand the specimen bottle to the member who was then to go with the observer and provide a urine sample. AR0432-33. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 9 of 27 PageID: 970 10 Response: Not disputed. 61. YNC Heath testified that the procedure she followed was for the member to put the label on the specimen bottle after they returned with the urine sample. AR0918-20. Response: Not disputed. 62. Davis never verified his Social Security number on the bottle label. AR1321- 22, AR0982. Response: Disputed in that Davis completed a “urinalysis Provider’s Check List,” certifying, in part, that his social security number on the checklist “matched the Sample Container, the Drug Urinalysis Sample Ledger, and the Urine Sample Custody Document.” AR0239. Not disputed that the statement above contains Davis’ testimony from the S&R proceeding. 63. The Manual required the collector, not the member to apply the label to the specimen bottle. Response: Not disputed. 64. YNC Heath testified that during the January 11, 2012 specimen collection the member labels were not initialed and placed on the specimen bottle until after Davis returned to the collection table with the urine sample which procedure is contrary to the Manual’s instruction. AR0981, AR0984. Response: Not disputed that YNC Heath testified that the member labels were not placed on the specimen bottles until after the members returned to the collection table with their specimens. 65. YNC Heath testified that when Davis first presented with his ID she completed Davis’ specimen label’s social security entry, TPI entry, Date entry and CI entry. AR0976-‐78. Response: Not disputed. 66. Davis signed the Urinalysis Provider’s Check List prior to giving his urine specimen or initialing the bottle label. AR1321-22. Response: Disputed. YNC Heath testified that this occurred after the urine specimen was given. AR0982. Not disputed that the statement above contains Davis’ testimony from the S&R proceeding. Further, the Check List speaks for itself. AR0239. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 10 of 27 PageID: 971 11 67. Before [Davis] even saw the label, he initialed the provider checklist. That was taken, flipped over, and put in a folder. AR0982. Response: Not disputed. 68. YNC Heath did not attach the label to his sample bottle before Davis and his observer departed for the restroom for him to produce his specimen, instead, the label, already filled out, remained on the table. AR1290-91, Docket Entry 13-2 ¶ 66. Response: Not disputed. 69. ME3 Fuchs was behind Davis when the paperwork and ledgers were initially filled out. AR0242. Response: Not disputed. 70. ME3 Fuchs was able to jump the line ahead of Davis upon returning with his urine sample. AR1297. Response: Disputed that it is known that this happened or that there was any evidence regarding any other member’s intentions. 71. According to the Urinalysis ledger, the label containing Davis’ social security number was the next label on the label sheet. AR0242. Response: Disputed as unclear. 72. YNC Heath testified that the member takes the label off the sheet, so ME3 Fuchs was able to select the label containing Davis’ social security number, which had been filled out by YNC Heath. AR0980. Response: Disputed that it is known that this happened or that there was any evidence regarding any other member’s intentions. 73. If YNC Heath had followed the procedure set forth in the Manual, Davis’ label containing his social security number and the initials of Davis and his observer would have been applied to his specimen bottle when he first received the bottle. AR0432-‐33. Response: Not disputed. 74. Plaintiff initialed a label applied to his urine sample immediately before it was attached to his specimen bottle. AR0979, 0984, 1293, 1304. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 11 of 27 PageID: 972 12 Response: Not disputed. 75. A designated observer was present when Davis gave his urine sample. AR0256. Response: Not disputed. 76. Davis' observer was Petty Officer ("YN2") Christopher Eidschun. AR0256. Response: Not disputed. 77. YN2 Eidschun initialed the label applied to Davis’ urine sample bottle. AR1292-93. Response: Not disputed. 78. YN2 Eidschun testified that he used either “CE” or “CME” as his initials. AR1102. Response: Not disputed. 79. YN2 Eidschun testified that his initials were not on the sample bottle in question. AR1131. Response: Not disputed. 80. Judge Brudzinski, upon examination of the specimen bottle label at trial stated, “That’s the observer’s initials. That looks like “DR.” AR1118. Response: Not disputed. 81. Davis initialed the label applied to his urine sample bottle. AR1292. Response: Not disputed. 82. Davis testified that he initialed the specimen bottle label with “CWD.” AR1290. Response: Not disputed. 83. Davis testified that his initials were not on the sample bottle in question. AR1295. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 12 of 27 PageID: 973 13 Response: Not disputed. 84. Coast Guard admits that upon inspection of the specimen bottle, the bottle label did not appear to bear the initials of Davis or his observer, YN2 Eidschun. Docket Entry 6 ¶ 42. Response: Not disputed. 85. Upon inspection of the specimen bottle, the bottle did appear to contain initials matching that of WF and his observer. Docket Entry 6 ¶ 93. Response: Not disputed. 86. The sample bottle that was labeled with the Plaintiff's social security number—and whose notations for batch and sample number matched urinalysis ledger, and Specimen Custody Document—was not the one Davis’ and his observer had initialed. AR0239, 0363-65, 1130-31. Response: Not disputed. 87. The sample bottle labeled with Davis' social security number bore the initials for WF. AR1280-82, 1327-28, Docket Entry 13-2 ¶ 79. Response: Not disputed. 88. Coast Guard prosecutors were advised of the discrepancy in initials on the specimen bottle before trial commenced. Id. ¶ 43. Response: Not disputed that Davis’ counsel advised the Coast Guard counsel of the alleged discrepancy before the S&R hearing commenced. 89. Coast Guard admits that the urine sample that tested positive on January 11, 2012 was not, in fact, Davis’ urine sample. Docket Entry 13-1, p.2. Response: Not disputed. 90. Coast Guard proceeded with the hearing. Docket Entry 6 ¶ 44. Response: Not disputed. 91. The Coast Guard moved to withdraw its S&R Complaint against Davis’ merchant mariner credential on May 24, 2013. Id. ¶ 50. Response: Not disputed. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 13 of 27 PageID: 974 14 92. Coast Guard conducted further investigation after May 24, 2013, but for the purposes of opposing Davis’ EAJA application. Id. ¶ 134. Response: Not disputed. 93. Davis thereafter filed an application with the Coast Guard Board for Correction of Military Records (BCMR) for relief including reinstatement to the Coast Guard, back pay, benefits, and other emoluments. Complaint, Exhibit C. Response: Not disputed. 94. Defendant admits that application was granted in part. Docket Entry 6 ¶ 54. Response: Not disputed. 95. Coast Guard acknowledged, in its advisory opinion to the Board of Correction of Military Records (BCMR) that a procedural error occurred in the collection of Davis’ urine sample. Id. ¶ 78. Response: Not disputed. 96. Coast Guard admitted in its Advisory Opinion to Davis’ application to the Board of Correction of Military Records “that a procedural error had occurred in both the collection and identification of the [Plaintiff’s] Specimen ... and that Davis’ discharge was due. . . to administrative error.” Docket Entry 1, Exhibit C; Coast Guard’s Advisory Opinion. Response: Not disputed. 97. The BCMR corrected Davis’ military record. Docket Entry 13-‐2 ¶ 31. Response: Not disputed. 98. Davis filed a timely application for attorney fees with the ALJ on June 21, 2013. Docket Entry 6 ¶ 102. Response: Not disputed. 99. ALJ Brudzinski, who had since become Chief Coast Guard ALJ, denied Davis' motion for fees on June 5, 2014. AR1509. Response: Not disputed. 100. ALJ Brudzinski denied Davis’ application. AR1522. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 14 of 27 PageID: 975 15 Response: Not disputed. 101. Davis filed a timely notice of appeal with the Commandant of the Coast Guard pursuant to 33 C.F.R. § 20.1001; the Commandant affirmed the ALJ's decision in an opinion issued February 26, 2016. AR1571. Response: Not disputed. 102. The Commandant denied Davis’ appeal. AR1576. Response: Not disputed. 103. Davis timely filed this Complaint on March 23, 2016. Docket Entry No. 1. Response: Not disputed. 104. The initial ALJ decision on Davis’ EAJA application found Davis to be eligible for an award of attorney fees. Docket Entry 1, Exhibit I, p. 14. Response: Disputed only to the extent that the ALJ found that Davis was an eligible individual within the meaning of 49 C.F.R. § 6.7, but that the Coast Guard’s position was substantially justified. Accordingly, the application for attorney fees under EAJA was denied. 105. The initial ALJ decision on Davis’ EAJA application found Davis to be a prevailing party. Id. p. 8, 14. Response: Disputed only to the extent ALJ found that Davis was the prevailing party only with regards to the underlying S&R preceding, which was the only proceeding that had taken place before that point in time. Response to Davis’s Supplemental Statement of Undisputed Material Facts, from his Opposition to Plaintiff’s Motion Section I: Response to Plaintiff’s List of Purported Admissions Contained in Coast Guard’s Answer to Plaintiff’s Complaint 1. Davis had served in the Coast  Guard for ten years as of January 11, 2012. Dckt. 6, ¶ 9. Response: Not disputed. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 15 of 27 PageID: 976 16 2. The Commandant of the United States Coast Guard (Commandant) issued a new Instruction Manual entitled “Coast Guard Drug and Alcohol Abuse Program” (Manual) on September 29, 2011. Id. ¶ 5. Response: Not disputed. 3. The Manual established the new policies and procedures concerning the administration of the Coast Guard’s drug and alcohol abuse program, including the required procedures for collecting urine specimens during drug testing of Coast Guard members. Id. ¶ 6. Response: Not disputed. 4. The Manual was binding on Coast Guard personnel. Id. ¶ 7. Response: Not disputed. 5. Davis and 11 other members of his Unit at Station Sandy Hook were selected for urinalysis testing on January 11, 2012. Id. ¶ 10. Response: Not disputed. 6. Davis was informed on January 31, 2012 that he had tested positive for cocaine metabolites. Id. ¶ 11. Response: Not disputed. 7. The Manual requires that where evidence of a possible drug incident includes a positive urinalysis result, the command should also determine whether the urinalysis was conducted in accordance with the Manual. Id. ¶ 8. Response: Not disputed. 8. Davis vehemently denied that he had ever used cocaine. Id. ¶ 12. Response: Not disputed. 9. When the positive urinalysis was reported, The Manual mandated that the command investigate and determine that the procedures used for collecting the urine specimen were in accordance with the Manual’s procedures. Id. ¶ 13. Response: Not disputed. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 16 of 27 PageID: 977 17 10. The initial Coast Guard investigation did not include an interview with the YNC Heath, who was the collector for the drug test. Id. ¶ 111. Response: Not disputed. 11. Coast Guard admits that aspects of the collection of Davis’ specimen were not in accordance with the Manual. Id. ¶ 15. Response: Not disputed. 12. Coast Guard admits that a procedural error occurred in the collection of urine samples on January 11, 2012.  Id. ¶ 72. Response: Not disputed. 13. YNC Heath  was officially designated as an “alternate urinalysis coordinator.” Id. ¶ 15. Response: Not disputed. 14. YNC Heath was not a witness at the ADSEP hearing. Id. ¶ 112. Response: Not disputed. 15. No other member of the Coast Guard offered testimony concerning the conduct of the collection of Davis’ urine specimen during the ADSEP hearing. Id. ¶ 113. Response: Disputed. CWO Loining testified as to the random selection of members for the urinalysis. The Manual was also admitted into evidence. AR0585. 16. Davis presented the ADSEP board the results of a hair drug test that displayed negative results for cocaine use.   Id. ¶ 35. Response: Not disputed. 17. Defendant admits that Davis presented the ADSEP board the results of a polygraph test that displayed negative results for queries related to drug use. Id. ¶ 36. Response: Not disputed. 18. Coast Guard filed a Suspension and Revocation (S&R) complaint against Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 17 of 27 PageID: 978 18 Davis’ Merchant Mariner Credential on February 11, 2013 on the basis of the urinalysis evidence.   Id. ¶ 39. Response: Not disputed. 19. The S&R hearing record reveals that Coast Guard’s S&R prosecutor did not interview any witnesses before the S&R Complaint was filed. Id. ¶ 129. Response: Not disputed. 20. The positive test result from January 11, 2012 was Coast Guard’s evidence of drug use in the S&R proceeding. Id. ¶ 74. Response: Not disputed. 21. Davis obtained access to the specimen bottle shortly before the ALJ hearing on Davis’ S&R proceeding was to commence.   Id. ¶ 129. Response: Not disputed. 22. Upon inspection of the specimen bottle, the bottle label did not appear to bear the initials of Davis or his observer.   Id. ¶ 42. Response: Not disputed. 23. Upon inspection of the specimen bottle, the bottle did appear to contain initials matching that of ME3 Fuchs and his observer.   Id. ¶ 93. Response: Not disputed. 24. Coast Guard prosecutors were advised of the discrepancy in initials on the specimen bottle before trial commenced.   Id. ¶ 43. Response: Not disputed that Davis’ counsel advised the Coast Guard counsel of the alleged discrepancy before the S&R hearing commenced. 25. Coast Guard proceeded with the S&R hearing.   Id. ¶ 44. Response: Not disputed. 26. After granting the Coast Guard’s request for a continuance, ALJ Brudzinski returned Davis’ merchant mariner credential, which Davis had surrendered at the outset of trial pursuant to Coast Guard regulations.   Id. ¶ 49 Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 18 of 27 PageID: 979 19 Response: Not disputed. 27. The Coast Guard moved to withdraw its S&R Complaint against Davis’ merchant mariner credential on May 24, 2013. Id. ¶ 50 Response: Not disputed. 28. Coast Guard conducted further investigation after May 24, 2013, but for the alleged purposes of opposing Davis’ EAJA application.   Id. ¶ 134. Response: Not disputed. 29. Davis thereafter filed an application with the Coast Guard Board for Correction of Military Records (BCMR) for relief including reinstatement to the Coast Guard, back pay, benefits, and other emoluments. Defendant admits that application was granted in part.   Id. ¶ 54. Response: Not disputed. 30. Coast Guard acknowledged, in an advisory opinion to the Board of Correction of Military Records (BCMR) that a procedural error occurred in the collection of Davis’ urine sample.  Id. ¶ 78. Response: Not disputed. 31. The BCMR corrected Davis’ military record.   Id. ¶ 117. Response: Not disputed. 32. Davis filed a timely application for attorney fees with the ALJ on June 21, 2013. Id. ¶ 102 Response: Not disputed. 33. Davis timely appealed the denial to the Commandant of the Coast Guard on June 24, 2014. Id. ¶ 103. Response: Not disputed. Section II: Response to Plaintiff’s List of Additional Facts Not in Dispute Contained in the Administrative Record 1. Davis was wrongly discharged from the Coast Guard. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 19 of 27 PageID: 980 20 Response: Not disputed. 2. Coast Guard bears the burden of proof that it was substantially justified in law and in fact as determined by the totality of the circumstances. Response: This is legal argument not appropriate for a statement of facts. 3. One objective of the Manual is to identify, treat and rehabilitate members who are found to be chemically dependent on drugs or alcohol prior to discharge from the Coast Guard. AR0399. Response: Not disputed. 4. Davis was never trained on the new procedures of the September 29, 2011 Manual. AR0880. Response: Unknown. This information is not part of the record. Further, disputed to the extent the statement implies that the two versions of the manual employ different procedures; they do not. 5. YNC Heath was designated an “Alternate Urinalysis Coordinator” on February 8, 2011. AR0231. Response: Not disputed. 6. YNC Heath testified that after she was so designated she received training in November 2010 and January 2011, dates that all precede publication of the new Manual. AR0880-81. Response: Not disputed. 7. The Manual required annually training of Units on its contents. AR0403 Response: Not disputed. 8. YNC Heath’s training consisted of observing one collection and being observed one time by her trainer. AR0943. Response: Disputed. YNC Heath also received instructions from Chief George Ott, the primary coordinator at the time she was designated, and she reviewed the applicable manuals and instruction materials. AR0880. 9. YNC Heath’s training was performed using the old procedure in the Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 20 of 27 PageID: 981 21 Personnel Manual M1000.6a series. AR0944. Response: Disputed to the extent the statement implies that the two versions of the manual employ different procedures; they do not. In September 2011, the Coast Guard eliminated the Coast Guard Personnel Manual and reissued it as a set of manuals, one of which was the new Coast Guard Drug and Alcohol Manual. The Coast Guard Drug and Alcohol Manual replaced Chapter 20 of the Personnel Manual. The change was made to allow for more expedited review of updates and promulgation of policy changes to the various chapters of the Personnel Manual. The Drug and Alcohol Manual contained no substantive differences from Chapter 20 of the canceled Personnel Manual in urinalysis collection procedures. AR 391-392. 10. YNC Heath received no training in urinalysis collection after publication of the new Manual and before the January 11, 2012 drug test. Response: Disputed. YNC Heath read the new manual. 11. YNC Heath reviewed the manual once before the test of January 11, 2012. AR0934. Response: Not disputed. 12. The Manual requires “Urinalysis Coordinators” be designated in writing. AR0938, AR0207 Response: Not disputed. 13. No Urinalysis Coordinator was present on January 11, 2012 to supervise the collection of Davis’ urine specimen. Response: Disputed in that YNC Heath served as the urinalysis coordinator. Not disputed that her designation letter was titled “Alternate Urinalysis Coordinator,” not “Urinalysis Coordinator.” 14. YNC Heath admitted at trial that she was not designated as a “Urinalysis Coordinator.” AR0939. Response: Not disputed. 15. YNC Heath testified that according to the Manual, she was not authorized to collect specimens or complete the Urinalysis Ledger. AR0940. Response: Disputed. YNC Heath was authorized by her Coast Guard Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 21 of 27 PageID: 982 22 command to collect specimens and complete the Urinalysis Ledger. AR 231, AR935-940. 16. YNC Heath testified that the September 11, 2012 drug test was the first one done at Station Sandy Hook using the new Manual. AR0942. Response: Disputed only to the extent the statement implies that the two versions of the manual employ different procedures; they do not. 17. The procedures set forth in the Manual were not followed in selecting members or collecting Davis’, and the other member’s, urine specimens on January 11, 2012. Response: Disputed. The Manual sets forth only recommendations to ensure random selection; it does not prescribe a procedure to be followed. “Commands may use other methods if they offer the same degree of randomness.” AR0432. 18. The Manual identified recommended methods of random selection of members for random drug testing. AR0432. Response: Not disputed. 19. The methods included computer-generated selection, selection by organization level, or selection of a number from a jar and comparing that number to a list of members’ social security numbers. Id. Response: Not disputed. 20. YNC Heath testimony shows that she was trained to not follow the Manual with respect to using social security numbers for selection of members to be drug tested, but instead was trained to use the Personnel Access List, which showed the Employer ID next to the member’s name. AR0955. Response: Disputed. YNC Heath’s testimony shows that she was following a different direction to use employee ID numbers rather than social security numbers out of concern for protecting members’ personal information. 21. The Manual provided that one number was to be selected for testing. AR0432 Response: Disputed. The Manual sets forth only recommendations to ensure random selection; it does not prescribe a procedure to be followed 22. The Collector selected five numbers, not one number as required by the Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 22 of 27 PageID: 983 23 Manual. AR0893, AR0234. Response: Not disputed that five numbers were selected; disputed that any particular number was required by the Manual. 23. The first number pulled for comparison did not match Davis’ Coast Guard ID number. AR0234. Response: Not disputed. 24. The Collector distributed, collected and filed the members’ verifications before the specimen bottle was given to Davis in violation of the Manual’s specimen collection verification procedures. AR1300; AR0982. Response: Disputed. It is disputed when the verifications were signed. 25. Contrary to the Manual’s requirements, YNC Heath wrote Davis’ social security number on a label but did not have Davis initial the label at that time, or most importantly, place the label on the sample bottle; instead leaving the label with Davis’ social security number on her table along with all the labels of other members who submitted to urinalysis drug testing that day. AR0981, AR1293. Response: Not disputed that YNC Heath took the stated actions. 26. The Manual required that YNC Heath write the member’s social security number on the bottle label and to have the member initial the bottle label confirming his social security number, then the Collector was to apply the label to the sample bottle and hand the specimen bottle to the member who was then to go with the observer and provide a urine sample. AR0432-33. Response: Not disputed. 27. YNC Heath testified that the procedure she followed was for the member to put the label on the specimen bottle after they returned with the urine sample. AR 0918-20. Response: Not disputed. 28. YNC Heath testified that on January 11, 2012, contrary to the Manual’s instruction, the member labels were not initialed and placed on the specimen bottle until after Davis returned to the collection table with the urine sample. AR0981, AR0984. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 23 of 27 PageID: 984 24 Response: Not disputed that YNC Heath testified that the member labels were not placed on the specimen bottles until after the members returned to the collection table with their specimens 29. YNC Heath also testified that she filled in the social security numbers on the sheet of labels. AR0977-78. Response: Not disputed. 30. MF was behind Davis when the paperwork and ledgers were initially filled out. AR0242. Response: Not disputed. 31. ME3 Fuchs, was able to jump the line ahead of Davis upon returning with his urine sample. AR1297. Response: Disputed that it is known that this happened or that there was any evidence regarding any other member’s intentions. 32. The label containing Davis’ social security number was the next label on the label sheet. Response: Disputed as unclear 33. YNC Heath testified that the member takes the label off the sheet, so WF was able to select the label containing Davis’ social security number. AR0980. Response: Disputed that it is known that this happened or that there was any evidence regarding any other member’s intentions. 34. Coast Guard empaneled an Administrative Separation Board as a result of the positive drug test. AR0259. Response: Not disputed. 35. Coast Guard admitted in its Advisory Opinion to Davis’ application to the Board of Correction of Military Records “that a procedural error had occurred in both the collection and identification of the [Plaintiff’s] Specimen . . . and that Davis’ discharge was due. . . to administrative error.” (See Exhibit C; Coast Guard’s Advisory Opinion). Response: Not disputed. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 24 of 27 PageID: 985 25 36. Davis presented evidence to the ADSEP Board in the form of a hair drug test that confirmed Davis’ contention that he had not used cocaine during the time in question or ever. See Exhibit D; Negative Hair Drug Screen. Response: Not disputed that Davis presented evidence in the form of the results of a hair drug test that did not show evidence of cocaine use. 37. Davis also presented evidence to the ADSEP Board in the form of a lie detector test that affirmed Davis’ contention that he had never been a user of cocaine. See Exhibit E; Polygraph Report. Response: Not disputed that Davis presented evidence in the form of a lie detector test that supported Davis’ contentions regarding his lack of cocaine use. 38. Davis’ Commanding Officer, CWO Loining testified that other than the positive drug test report, there was no evidence that Davis was a user of drugs. AR1039-40. Response: Not disputed. 39. Davis is eligible for an award of attorney fees. Exhibit I, p. 14. Response: This is legal argument not appropriate for a statement of facts. Otherwise, disputed. The ALJ found that Davis was an eligible individual within the meaning of 49 C.F.R. § 6.7, but that the Coast Guard’s position was substantially justified. Accordingly, the application for attorney fees under EAJA was denied. 40. The initial decision on Davis’ EAJA application found Davis to be a prevailing party. Id. p. 8, p. 14. Response: Disputed. The ALJ found that Davis was an eligible individual within the meaning of 49 C.F.R. § 6.7, but that the Coast Guard’s position was substantially justified. Accordingly, the application for attorney fees under EAJA was denied 41. The initial decision on Davis’ EAJA application did not include any comparative analysis of the testimony of YNC Heath as to the procedures she followed on January 11, 2012 and the requirements of the Manual. Exhibit I. Response: This is legal argument not appropriate for a statement of facts Otherwise, disputed to the extent this statement attempts to make an argument regarding what the ALJ was required to determine in order to Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 25 of 27 PageID: 986 26 evaluate Davis’ EAJA fee application. 42. The initial decision on Davis’ EAJA application relied upon an investigation by CGIS. Exhibit I. Response: This is legal argument not appropriate for a statement of facts Otherwise, disputed to the extent this statement attempts to make an argument regarding what the ALJ concluded. 43. CGIS testified at the ADSEP hearing that its investigation was not to determine if a drug incident actually occurred, but to determine if other members of the Unit are or Coast Guard are involved in the use or supply of other prohibited substances. AR0586. Response: Not disputed. 44. The Commandant admits that Coast Guard must perform an investigation in any S&R proceeding in accordance with 46 C.F.R. Part 5, Subpart D. Exhibit N, p. 6. Response: This is legal argument not appropriate for a statement of facts. 45. Davis moved pursuant to 46 C.F.R. 5.01(b) to preclude statements or admissions he made during the CGIS investigation. AR0096-98. Response: Disputed to the extent it appears Davis moved under 46 C.F.R. 5.101(b). 46. ALJ Brudzinski, in denying Davis’ motion to preclude statements he made during the Coast Guard’s investigation opined that “respondent makes no showing that CGIS conducted its investigation under 46 C.F.R. Part 4 or Part 5.” AR0120. Response: Not disputed. Section III: Response to Plaintiff’s List of Additional Admissions By Coast Guard Contained In Its Motion For Summary Judgment 1. Coast Guard drug tested Davis pursuant to its own drug testing policy and standards. Dckt. 13-2, p. 8. Response: Not disputed. Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 26 of 27 PageID: 987 27 2. The urine sample that tested positive on January 11, 2012 was not, in fact, Davis’ urine sample. Id., p. 2. Response: Not disputed. PAUL J. FISHMAN United States Attorney /s/ Jessica R. O’Neill By: JESSICA R. O’NEILL Assistant U.S. Attorney Dated: January 13, 2017 Case 3:16-cv-01616-MLC-DEA Document 16-1 Filed 01/13/17 Page 27 of 27 PageID: 988 PAUL J. FISHMAN United States Attorney JESSICA R. O’NEILL Assistant U.S. Attorney 401 Market Street, 4th Floor Camden, NJ 08101 Tel. 856-757-5139 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : CLINT WALKER DAVIS, JR., : : HONORABLE MARY L. COOPER Plaintiff, : : v. : Civil Action No. 16-1616 (MLC) (DEA) : ADMIRAL PAUL F. ZUKUNFT, : Commandant, United States Coast : CERTIFICATE OF SERVICE Guard, : : Defendant. : : I hereby certify that on January 13, 2017, a copy of the Defendant’s Combined Brief in Opposition to Plaintiff’s Motion for Summary Judgment and Reply in Support of Defendant’s Motion for Summary Judgment, and Responsive Statement of Material Facts, along with this Certificate of Service, were served via the Court’s electronic filing system upon the following: Brian McEwing, Esq. Reeves McEwing LLP 681 Town Bank Road Cape May, NJ 008204 Attorneys for Plaintiff Case 3:16-cv-01616-MLC-DEA Document 16-2 Filed 01/13/17 Page 1 of 2 PageID: 989 2 PAUL J. FISHMAN United States Attorney /s/ Jessica R. O’Neill By: JESSICA R. O’NEILL Assistant U.S. Attorney Case 3:16-cv-01616-MLC-DEA Document 16-2 Filed 01/13/17 Page 2 of 2 PageID: 990