Just What Does It Take To Get Equal Access To Justice?

APP. DEC. 2714 [Feb. 26, 2016]

For the mariner, something more than just an obviously flawed  Coast Guard complaint, it would seem.  The mariner in this case was both an active duty Coast Guard serviceman, and a licensed mariner. He submitted to a Coast Guard mandated random drug test in New Yorkand tested positive. At the hearing in New York on May 2-3, 2013, the mariner claimed that the Coast Guard had failed to meet its fullburden of proving drug use because neither his initials, nor  the specimen collector’s initials,  were  on the specimen collection bottle, a violation of 46 CFR part 16. It will be recalled that the Coast Guard’s full burden of proof in a drug case obligates it to prove:   (1) That the Respondent is the person who took the drug test;  (2) that the test taken was positive; and  (3) that all regulations were fully complied with. Then, if the Coast Guard can prove these first three elements, it will benefit from a “regulatory presumption” of the fourth element – that the mariner is a drug USER. App. Dec. 2704 (FRANKS)(2014)  at 10-11.   Any establishedviolation of 46 CFR part 16 is sufficient to defeat element (3), and therefore the entire Coast Guard case. See, App. Dec. 2697 (GREEN)(2011)(Failure of Coast Guard to prove randomness requirement of part 16 was fatal to Coast Guard case). Knowing this, when the Coast Guard was  confronted with the mariner’s defense at the hearing, the Coast Guard asked for, and was granted,  a continuance to “investigate”. The Coast Guard investigated, and then moved to withdraw its complaint; the ALJ granted the motion. 

Meanwhile the mariner, who had engaged professional, and very thorough and capable counsel,  had incurred somewhere around $50,000 in attorney’s fees, including full preparation for the hearing. On June 21, 2013, the mariner, as he was entitled to do in this circumstance,  filed a motion under the Equal Access to Justice Act [“EAJA”], 5 USC sec. 504 (a) (2),  seeking  an award of attorney’s  fees against the Coast Guard in excess of $50,000.  ALJ Walter J. Brudzinski denied the motion, and the mariner appealed  to the Commandant. The main issue before the Commandantwas whether the Coast Guard had behaved “reasonably” in bringing the case to the ALJ in the first instance, which is the standard of review for an EAJA case.   The mariner argued that even though the specimen bottle did contain his social security number, and the mariner had signed the form confirming his social security number, the  specimen bottle was not his, and could not be proven to have been his.. The mariner argued that the Coast Guard should have discovered this flaw before the hearing, and, that they should have  dismissed the complaint, as they eventually chose to do when they “investigated” after the hearing began. The Coast Guard argued that their behavior was reasonable, because the evidence they had mustered before the hearing overwhelmingly supported their case:  the mariner signed the form certifying his social security number; the witness from the collection agency was ready to testify  that ALL PROCEDURES WERE PROPERLY FOLLOWED (Quaere: how could that have been true?);  the MRO was, as usual,  ready to testify that there were no valid medical  explanations  for a positive test other than drug use;  and finally, and curiously,  the Coast Guard claimed to have a “mystery witness” who would somehow corroborate the mariner’s use of cocaine. How they could have maintained a “mystery witness” up through the opening of hearing, when they are supposed to have disclosed witness names and exhibits, is not explained.

ALJ Walter Brudzinski held that the Coast Guard’s conduct was not unreasonable. True, there was the problem that the Coast Guard was not going to be able to prove the specimen bottle was that of the mariner, but ALJ Brudzinski  thought that having the other four elements was close enough. The ALJi expressly stated that the Coast Guard’s underlying legal theory – that the mariner tested positive for cocaine – was “sound” and had a reasonable basis in fact. The main reason for this conclusion seems to be that although the initials were not on the sample bottle, the mariner’s social security number was on it, and the mariner had certified that the sample bottle contained his social security number; and that the Coast Guard (claimed that it) did not know about the initials on the bottle  problem AT THE TIME IT FILED ITS COMPLAINT.  The Commandant sustained the ALJ, noting that” “Although the action ended in Applicant’s favor, the ALJ was, nonetheless, correct to find that the Coast Guard’s COMPLAINT was substantially justified. 

EVALUATION:   There are several questions which this decision leaves unanswered. First, there is a difference between saying that the Coast Guard was justified in BRINGING A COMPLAINT (when they claimed not to know of the procedural  flaws on the sample bottle) and pursuing the case all the way up to the day of the hearing, when they clearly did, or at least should have,  known of the problem. These are, after, Coast Guard rules, and it does not seem unreasonable to hold the Coast Guard accountable for knowing, and following  them. It is also difficult to believe that the Coast Guard DID NOT KNOW about the problem at the time they prepared their complaint.  Regardless, they surely  are obligated to conduct an “investigation” prior to the day of the hearing, and if they fail to do so, or if they fail to conduct a thorough investigation, justice would seem to require the conclusion that their conduct should not be considered to have been reasonable.   Moreover, the  fact that the Coast Guard elected to dismiss its complaint only AFTER an  “investigation” it conducted following the hearing  seems highly suspicious. The Coast Guard had no more evidence after the hearing than it did before; and that strongly  suggests  that whatever changed their mind could and should have been discovered well before the hearing. In the final analysis, it  wasn’t just mariner dollars that were squandered here, but also taxpayer dollars. This decision does not leave us with an abundance of confidence that  justice is accessible under the Equal Access to Justice Act.