DAVIS v. ZUKUNFT et al

Filing 19

OPINION filed. Signed by Judge Brian R. Martinotti on 7/26/2017. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
:
:
Plaintiff,
:
v.
:
:
ADMIRAL PAUL F. ZUKUNFT,
:
Commandant, United States Coast Guard, :
:
Defendant.
:
____________________________________:
CLINT WALKER DAVIS, JR.,

Civil Action No. 3:16-cv-01616-BRM-DEA

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court are Plaintiff Clint Walker Davis, Jr.’s (“Plaintiff” or “Davis”) Motion for
Summary Judgment (ECF No. 15) and Defendant Admiral Paul F. Zukunft, in his capacity as
Commandant of the United States Coast Guard’s (“Defendant” or “Coast Guard”) Motion for
Summary Judgment (ECF No. 13). Both parties move for summary judgment as to whether Davis
is entitled to recover attorney’s fees and expenses from the Coast Guard under the Equal Access
to Justice Act (“EAJA”), 5 U.S.C. § 504. Both motions are opposed. Pursuant to Federal Rule of
Civil Procedure 78(b), the Court did not hear oral argument. For the reasons set forth below,
Plaintiff’s Motion for Summary Judgment is GRANTED in part and REMANDED in part and
Defendant’s Motion for Summary Judgment is DENIED.
I.

BACKGROUND
This case is an administrative appeal by Davis, who seeks review of a decision by an

Administrative Law Judge (“ALJ”), affirmed by the Vice Commandant of the Coast Guard (the
“Commandant”), denying Davis attorney’s fees and expenses incurred in an adversary
adjudication brought by the Coast Guard. The following facts are taken from the parties’ Local
1

Rule 56.1 submissions1 and the underlying Administrative Record (“AR”), and are undisputed
unless otherwise noted.
A.

Coast Guard Drug and Alcohol Abuse Program

On September 29, 2011, the Coast Guard issued a new instruction manual entitled “Coast
Guard Drug and Alcohol Abuse Program” (the “Manual”). (PSOF ¶ 1; AR0389-450.) The Manual
established the new policies and procedures concerning the administration of the Coast Guard’s
drug and alcohol abuse program, including its urinalysis2 program. (PSOF ¶ 2; DSOF ¶ 10;
AR0427-50.) The Manual was binding on Coast Guard personnel. (PSOF ¶ 3.)
The Manual provides that “[c]ommanding officers shall initiate an investigation into a
possible drug incident[3] . . . following receipt of a positive confirmed urinalysis result or any other
evidence of drug abuse.” (AR0421.) If the evidence of a possible drug incident includes a positive
urinalysis result, the Manual states that “the command should also determine whether the
urinalysis was conducted in accordance with [the Manual] and whether the collection and chain of
“PSOF” refers to Plaintiff’s statement of undisputed facts (ECF No. 15-1), with
Defendant’s responses (ECF No. 16-1 at 1-15). “DSOF” refers to Defendant’s statement of
undisputed facts (ECF No. 13-1), with Plaintiff’s responses (ECF No. 14-1 at 1-25). “PSSOF”
refers to Plaintiff’s supplemental statement of undisputed facts (ECF No. 14-1 at 26-29), with
Defendant’s responses (ECF No. 16-1 at 15-19). “PSOAF” refers to Plaintiff’s statement of
additional facts not in dispute contained in the administrative record (ECF No. 14-1 at 29-34), with
Defendant’s responses (ECF No. 16-1 at 19-26). “PSOAA” refers to Plaintiff’s statement of
additional admissions by Coast Guard contained in its motion for summary judgment (ECF No.
14-1 at 34), with Defendant’s responses (ECF No. 16-1 at 26-27). “PSUF” refers to Plaintiff’s
summary of undisputed facts (ECF No. 17-1) to which Defendant did not respond.
1

The Manual defines “urinalysis” as “[t]he entire procedure involved in obtaining urine
samples under controlled conditions, maintaining a chain of custody on each sample, and
scientifically analyzing the samples to detect the presence of drugs.” (AR0402.)
2

3

The Manual states that any of the following conduct constitutes a drug incident as
determined by the commanding officer: (a) intentional drug use; (b) wrongful drug possession; (c)
drug trafficking; (d) the intentional use of other substances to obtain a “high,” contrary to their
intended use; or (e) a civil or military conviction for wrongful use, possession, or trafficking of
drugs, unless rebutted by other evidence. (AR0402.)
2

custody procedures were properly followed.”

(AR0423.)

If after the completion of an

investigation it is determined a drug incident occurred, the Manual requires the commanding
officer to take action against the member, which may include processing the member for separation
from the Coast Guard by reason of misconduct. (AR0423-24.)
The Manual further provides detailed instructions for conducting random urinalysis testing,
including step-by-step collection procedures, which will be summarize here. (See AR0427-450.)
The collection procedure begins with a member selected for urinalysis testing reporting to the
urinalysis coordinator4 with his/her identification card in hand. (AR0432.) The coordinator
initiates the Urinalysis Ledger5 and will record the member’s name, rank, test basis, social security
number and enter the document/batch and specimen number. (AR0433.) The coordinator initiates
a bottle label, and records the date and the member’s social security number on the bottle label.
(Id.) The member verifies to the coordinator that the information on the ledger and bottle label is
correct. (Id.) The member signs the ledger and initials the bottle label documenting that his/her
name, social security number, batch/document number, rank, and date are correct on the ledger
and his social security number and date are correct on the label. (Id.) The observer also initials
the label. (AR0437.) This process is accomplished prior to the label being affixed to the specimen
bottle. (AR0433, AR0437.) The coordinator then removes an empty specimen bottle from a box,

The “urinalysis coordinator” is responsible for maintenance and administration of the
command urinalysis program, including the training of alternate coordinators and observers and
the shipment of uncompromised specimens for analysis. (AR0428.) The Manual provides that
“[u]rinalysis coordinators shall supervise all specimen collections and make all urinalysis ledger
entries.” (Id.) An “alternate coordinator” assists in urinalysis procedures and provides additional
confirmation that proper procedures are followed. (Id.) Urinalysis coordinators are designated in
writing by the commanding officer in their command administration list. (Id.)
4

The Manual provides that “[C]ommands shall maintain a urinalysis ledger documenting
all urine specimens collected using the Coast Guard Urinalysis Ledger, Form CG-1000.”
(AR0438.)
5

3

removes the cap, verifies with the member and observer the bottle is clean, and recaps the bottle
in full view of the member and observer. (AR0433.) The coordinator places the member’s
identification card in the same slot from which the bottle was removed and attaches the label to
the specimen bottle in full view of the member and observer. (Id.) The coordinator gives the
specimen bottle to the member in the presence of the observer. (Id.) The member maintains
custody of the specimen bottle from the time the coordinator gives him the bottle until it is filled
and capped. (Id.) The observer ensures he/she has full view of the specimen bottle at all times
and escorts the member from the coordinator’s table to the collection point, where the member
provides at least 30 milliliters of urine and then caps the bottle. (AR0433-34.) The observer then
accompanies the member back to the coordinator’s table. (AR0434.) The observer signs the
urinalysis ledger, certifying the urine specimen bottle contains urine provided by the member and
was not contaminated or altered in any way. (Id.) The coordinator receives the urine specimen
bottle from the member and initials the urine specimen bottle label in the member’s presence and
transcribes the information to Specimen Custody Document-Drug Testing, DD Form 2624.
(AR0434-35.) Tamper-resistant tape is then applied to the urine specimen bottle. (AR0435.)
The coordinator prepares the specimens for shipment and mails them to Tripler Army
Medical Center Forensic Toxicology Drug Testing Laboratory (“Tripler Lab”) for analysis.
(AR0443-45.) Tripler Lab performs an initial screening test of the received specimens, which
furnishes a presumptive positive or presumptive negative result that is used to determine whether
confirmatory tests are warranted. (AR0445.) Any specimen presumed positive undergoes a
confirmatory test using Gas Chromatography-Mass Spectrometry (“GC/MS”) technology.6 (Id.)

6

A screening test detects only a class of drugs, whereas the confirmatory testing using
GC/MS technology detects a specific metabolite of a certain drug. (AR0445.)
4

Tripler Lab then reports confirmed positive test results to the originating command. (AR0446.)
The Manual provides that “[a] positive finding is evidence of drug use.” (Id.)
B.

Davis’ Urinalysis Test and Results

Davis was an active duty Coast Guard Petty Officer stationed at Coast Guard Station Sandy
Hook. (PSOF ¶ 8; DSOF ¶ 11.) On January 11, 2012, Davis was selected for urinalysis testing,
along with eleven other Coast Guard members, and gave a urine sample. (PSOF ¶¶ 19, 26; DSOF
¶¶ 14, 16.) The urinalysis testing was overseen by Chief Petty Officer Kori Heath (“YNC Heath”),
who was officially designated as an alternate coordinator.7 (PSOF ¶ 14; DSOF ¶ 15.)

It is

undisputed that a procedural error occurred in the collection of Davis’ specimen and aspects of the
collection of Davis’ specimen was not conducted in accordance with the Manual. (PSOF ¶ 5758.) Specifically, YNC Heath wrote Davis’ social security number on a label, but did not have
Davis or his observer initial the label at that time. (PSOF ¶ 59.) YNC Heath also did not affix the
label to Davis’ sample bottle before providing the sample bottle to Davis in the presence of his
observer. (PSOF ¶¶ 59, 68; DSOF ¶ 66.) Instead, the label with Davis’ social security number
remained on the table along with all of the labels of other members who submitted to urinalysis
drug testing that day, while Davis filled his sample bottle at the collection site. (PSOF ¶¶ 59, 68;
DSOF ¶ 66.)

7

YNC Heath was not officially designated as a urinalysis coordinator. (PSOF ¶ 14-15.)
There is a dispute of fact concerning whether a urinalysis coordinator was present to supervise the
collection of Davis’ urine specimen. (See PSOF ¶ 18; DSOF ¶ 15.) The Coast Guard maintains
that YNC Heath served as the urinalysis coordinator during the collection of Davis’ urine
specimen, although she did not have the proper written designation, and that YNC Heath was
authorized by the Coast Guard command to collect specimens and complete the Urinalysis Ledger.
(See PSOF ¶¶ 15-18.) This dispute of fact does not affect the Court’s analysis.
5

Upon returning to the coordinator table from the collection site, Davis initialed a label and
that label was applied to his sample bottle. (PSOF ¶ 74, 81-82; DSOF ¶¶ 67, 71.)8 Davis did not
review the contents of the label and simply initialed it. (DSOF ¶ 70.)9 Davis’ observer also
initialed the label applied to Davis’ sample bottle. (PSOF ¶ 77-78; DSOF ¶ 72.) The label Davis
and his observer actually initialed, and that was affixed to Davis’ sample bottle, was bearing the
social security number of another Coast Guard member, WF. (DSOF ¶ 77.) WF and his observer
initialed the label that contained Davis’ social security number, and affixed the label bearing
Davis’ social security number to WF’s sample bottle. (PSOF ¶ 85-87; DSOF ¶¶ 76, 77-79.) As a
result, the sample bottle bearing Davis’ social security number did not contain Davis’ urine and
was not the one he and his observer had initialed. (PSOF ¶ 86; DSOF ¶ 78-79.)
Tripler Lab evaluated the samples and reported one sample tested positive for cocaine
metabolites. (PSOF ¶ 33; DSOF ¶ 21.) Tripler Lab reported the sample that tested positive for
cocaine metabolites came from the sample bottle labeled with Davis’ social security number.
(DSOF ¶ 24.) As a result, the Coast Guard concluded the positive sample was provided by Davis.
(DSOF ¶ 25.) On January 31, 2012, Davis was informed by his commanding officer that he had
tested positive for cocaine metabolites. (PSOF ¶ 34.) Davis vehemently denied that he had ever
used cocaine. (PSOF ¶ 35.)

The parties’ dispute who physically affixed the label to the sample bottle; YNC Heath
and Davis each maintain that the other did so. (DSOF ¶ 71.)
8

Davis did, however, complete a Urinalysis Provider’s Check List, certifying that “the
Batch Number, Specimen Number, and [his] Social Security Number written on the [the Checklist]
match the Sample Container, the Drug Urinalysis Sample Ledger, and the Urine Sample Custody
Document.” (AR0239.) There is a dispute of fact pertaining to when Davis completed the Check
List. (See PSOF ¶ 66; DSOF ¶ 17.) However, it is undisputed that before Davis saw the label, he
initialed the Check List that was then taken, flipped over, and put in a folder. (PSOF ¶ 67.)
9

6

C.

Coast Guard Investigation and Discharge

Based on the result of the positive urinalysis test, the Coast Guard Investigative Service
(“CGIS”) conducted an investigation.10 (PSOF ¶ 41; DSOF ¶ 26; see also AR0814-52.) The CGIS
investigation did not include an interview with YNC Heath to review the procedures employed
during the urinalysis test. (PSOF ¶ 45.) Davis, assuming the lab results were accurate, suggested
to representatives of the command and CGIS agents that he may have been slipped cocaine when
he visited a bar in Neptune, NJ. (DSOF ¶ 27; see also AR0829, AR0832, AR0839.) After
reviewing the investigation and related evidence, Davis’ commanding officer determined that a
“drug incident,” as defined by the Manual had occurred. (DSOF ¶ 29.) Accordingly, Davis’
commanding officer requested that Davis be discharged from the Coast Guard due to misconduct.
(DSOF ¶ 31.)
An Administrative Separation (“ADSEP”) Board11 was convened and heard evidence
concerning the facts and circumstances of the positive urinalysis test for cocaine. (PSOF ¶ 42;
DSOF ¶ 34; see also AR0583-96.) The Coast Guard offered no testimony regarding the procedures
followed by YNC Heath in collecting Davis’ urine sample, and Davis did not argue that the sample
was not his. (PSOF ¶ 48; DSOF ¶ 36.) Davis, however, presented evidence in the form of a hair
drug test and a polygraph that supported Davis’ contention that he had never been a user of cocaine.
(PSOF ¶¶ 49-50.) The ADSEP Board rendered findings and determined that a “drug incident”
occurred involving Davis. (DSOF ¶ 37.) The ADSEP Board recommended that Davis be given a

10

The role of a CGIS investigation is not to determine if a drug incident actually occurred,
but to determine if other members of a Coast Guard unit are involved in the use or supply of other
prohibited substances. (PSOF ¶¶ 43-44; see also AR0586, AR0596.)
11

Coast Guard members with more than eight years of service are entitled to an ADSEP
Board prior to discharge. (DSOF ¶ 32.) The ADSEP Board is required to make a determination
as to whether a “drug incident” occurred. (DSOF ¶ 33.)
7

general discharge for misconduct due to involvement with drugs. (PSOF ¶ 52; DSOF ¶ 37; see
also AR0260.) That recommendation was approved by the Coast Guard personnel office on
December 18, 2012. (PSOF ¶ 52; DSOF ¶ 38; AR0260.)
D.

Suspension and Revocation Proceeding

Separate from his status as an active duty member of the Coast Guard, Davis possessed a
merchant mariner credential (a “credential”) issued by the Coast Guard. (PSOF ¶ 53; DSOF ¶¶
39-40.) When the Coast Guard learns that a credential holder has used a dangerous drug, the Coast
Guard will initiate an action against that individual’s credential. (DSOF ¶ 41.) On February 11,
2013, the Coast Guard filed a Suspension and Revocation (“S&R”) complaint against Davis’
Merchant Mariner Credential on the basis of the urinalysis evidence. (PSOF ¶¶ 54-55; DSOF ¶
42.) The Coast Guard’s prosecutor did not interview any witnesses before the S&R complaint was
filed. (PSOF ¶ 56.)
From February 11, 2013 until May 2, 2013 (the first day of the S&R hearing), the parties
litigated pre-hearing issues, including discovery issues. (DSOF ¶ 46.) A discovery issue arose
regarding inspection of Davis’ sample bottle from the urinalysis. (DSOF ¶ 47.) Davis sought
production of the sample bottle; the Coast Guard opposed his request. (DSOF ¶¶ 48-49.) Davis
made a motion to compel production of the sample bottle, which was denied by the ALJ. (DSOF
¶ 50.) Davis also attempted to obtain the sample bottle directly from Tripler Lab, however the
Coast Guard directed Tripler Lab not to produce the sample bottle in view of the ALJ’s denial of
Davis’ motion to compel. (DSOF ¶¶ 51-52.) On April 23, 2013, Davis filed a second motion to
compel production of his sample bottle. (DSOF ¶ 53.) On April 25, 2013, the ALJ granted Davis’
motion. (DSOF ¶¶ 55, 57.) The sample bottle was made available for inspection by both parties
the day before the hearing began on May 1, 2013. (DSOF ¶ 57.)

8

Davis obtained access to his sample bottle shortly before the S&R hearing was to
commence. (PSSOF ¶ 21.) Upon inspection of the sample bottle, it was discovered the bottle
label did not bear the initials of Davis or his observer, and instead appeared to contain the initials
matching that of Coast Guard member WF and his observer. (PSSOF ¶¶ 22-23.) The Coast Guard
prosecutors were advised of this discrepancy before trial commenced, but proceeded with the twoday S&R hearing. (PSSOF ¶¶ 24-25; DSOF ¶ 62.) The procedural error that occurred in the
collection of Davis’ specimen and the aspects of the collection of Davis’ specimen that were not
in accordance with the Manual became clear during the hearing. (See PSOF ¶¶ 59-61, 63-65, 6769, 73-87, 89; DSOF ¶¶ 63, 66-67, 72, 74-79.) At the close of the hearing’s second day, after
testimony concerning the initials on Davis’ sample bottle had been received into the record, the
Coast Guard moved for a continuance so that it could conduct further investigation. (DSOF ¶ 80.)
On May 24, 2013, the Coast Guard filed a motion for voluntary dismissal. (DSOF ¶ 81.) The ALJ
granted the motion and dismissed the S&R complaint with prejudice. (DSOF ¶ 82.)
E.

Post-S&R Hearing Proceedings

Davis filed an application with the Coast Guard Board for Correction of Military Records
(“BCMR”) seeking reinstatement, back pay, benefits, and other emoluments. (PSOF ¶ 93.) The
Coast Guard acknowledged, in its advisory opinion to the BCMR, that a procedural error had
occurred in both the collection and identification of Davis’ specimen and that Davis’ discharge
was due to administrative error. (PSOF ¶¶ 95-96.) Davis’ application was granted in part and the
BCMR corrected Davis’ military record. (PSOF ¶¶ 94, 97.)
Davis also filed a timely application for attorney’s fees and expenses with the ALJ. (PSOF
¶ 98; DSOF ¶ 83.) The ALJ denied Davis’ application, finding that the Coast Guard’s position in
the S&R proceeding was substantially justified both in fact and in law. (ECF No. 1-11.) The ALJ

9

found the Coast Guard had a reasonable basis in law because the Coast Guard proceeded on a legal
theory that Davis tested positive for cocaine on a Coast Guard random drug test in violation of 46
U.S.C. § 7704. (Id. at 10-11.) Further, the ALJ found the Coast Guard had a basis in fact to bring
the S&R complaint because the “Coast Guard’s documentary evidence showed [Davis] tested
positive for cocaine during a Coast Guard drug test.” (Id. at 11.) The ALJ relied on the fact that
Davis’ social security number was on the sample bottle and was contained in the documentation
from the lab which conducted the testing. (Id.) The ALJ noted the Urinalysis Provider’s Check
List that Davis completed provided a link between Davis and the sample. (Id.) The ALJ also cited
YNC Heath’s testimony at the S&R hearing and the testimony of a seaman that Davis supervised
as supportive of the Coast Guard’s position. (Id. at 12.) The ALJ rejected Davis’ arguments that
the Coast Guard did not perform an adequate investigation, failed to investigate the positive drug
test, and ignored his exonerating evidence in the form of a hair drug test and polygraph test. (Id.
at 12-14.)
Davis filed a timely notice of appeal with the Commandant of the Coast Guard pursuant to
33 C.F.R. § 20.1001. (PSOF ¶ 101; DSOF ¶ 86.) The Commandant, in affirming the ALJ’s denial
of an award of attorney’s fees and expenses, found the “Coast Guard was substantially justified in
commencing S&R proceedings against Applicant’s merchant mariner credential.” (ECF No. 1-16
at 6.) Specifically, the Commandant concluded that:
The record shows that a urine sample collected in a container affixed
with Applicant’s Social Security Number and verified, at the time
of collection, by Applicant as containing his own sample, tested
positive for the presence of dangerous drugs. (There is no evidence
suggesting that the testing of the subject urine sample was conducted
improperly, and no issue has been raised regarding testing.) Thus,
the Coast Guard’s allegation that Applicant was a user of or was
addicted to the use of dangerous drugs had a reasonable basis both
in law and fact, as determined by the totality of the circumstances.

10

(Id.) In addition, the Commandant held that Davis’ status as an active-duty Coast Guard member
did not create any heightened duty to investigate, and the investigation was conducted properly in
accordance with 46 C.F.R. Part 5, Subpart D. (Id.)
Davis then invoked 5 U.S.C. § 504(c)(2), asking this Court to review the merits of the
denial of an award of attorney’s fees and expenses. Both parties filed motions for summary
judgment, seeking a ruling by the Court as to whether there is substantial evidence in the record
below to support the finding that the Coast Guard was substantially justified in bringing the S&R
proceeding against Davis, thus precluding Davis from obtaining an award of attorney’s fees and
expenses. (ECF Nos. 13, 15.)
II.

LEGAL STANDARD
Section 504(a)(1) of the EAJA allows a prevailing party in an adversary adjudication to

collect “fees and other expenses incurred by that party in connection with that proceeding, unless
the adjudicative officer of the agency finds that the position of the agency was substantially
justified or that special circumstances make an award unjust.” 5 U.S.C. § 504(a)(1). The parties
here do not dispute that Davis was the prevailing party or that the underlying proceeding was an
adversary adjudication. (See ECF No. 13 at 8.) Rather, Davis argues he should have been awarded
fees because the Coast Guard’s position in the proceeding was not substantially justified.
In an EAJA action, the agency bears the burden of proving its position was substantially
justified—that it was “justified to a degree that could satisfy a reasonable person”—and its position
must be substantially justified not only at the filing of the charge but throughout the course of the
litigation. Pierce v. Underwood, 487 U.S. 552, 565 (1988); see Morgan v. Perry, 142 F.3d 670,
684 (1998). To satisfy this burden and defeat a prevailing party’s application for fees, the agency
must demonstrate “(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in

11

law for the theory it propounded; and (3) a reasonable connection between the facts alleged and
the legal theory advanced.” Morgan, 142 F.3d at 684 (citation omitted.) Thus, it is not up to this
Court to decide if the Coast Guard was correct in its position, but only to determine whether “a
reasonable person could countenance the Coast Guard’s position in the particular context of this
dispute.” Bruch v. U.S. Coast Guard, 749 F. Supp. 688, 694 (E.D. Pa. 1990).
The EAJA permits a litigant who is dissatisfied with denial of fees to appeal that decision
“to the court of the United States having jurisdiction to review the merits of the underlying decision
of the agency adversary adjudication.” 28 U.S.C. § 504(c)(2). In hearing the appeal, any
determination by this Court must “be based solely on the factual record made before the agency,”
and the fees or expenses award may be modified “only if the court finds that the failure to make
an award of fees or other expenses . . . was unsupported by substantial evidence.” Id.
The Supreme Court has defined “substantial evidence” in the context of court review of an
administrative agency decision as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)
(quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938). Substantial evidence is “more
than a mere scintilla,” Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 477 (1951), but is
“something less than the weight of the evidence, and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence. Consolo, 383 U.S. at 620.

12

III.

DECISION
Davis argues the Coast Guard was not substantially justified in bringing an S&R

proceeding against him in either law or in fact. The Coast Guard disputes Davis’ claims and
maintains that this Court should find the record contains substantial evidence upon which the
denial of an award was based. For the following reasons and based on the factual record below,
the Court finds that the failure to make an award of attorney’s fees and other expenses was
unsupported by substantial evidence.
A. Basis in Law
The Court must determine whether the Coast Guard’s theory that it propounded was
substantially justified in law. The Coast Guard contends the ALJ correctly decided that it was
legally justified in bringing an S&R proceeding based on the results of a drug test administered to
Davis under Coast Guard rules and in the context of his status as a Coast Guard member, rather
than a drug test administered to him under Department of Transportation rules in the context of his
status as a merchant mariner. (ECF No. 13-2 at 11-14.) Davis does not disagree with the Coast
Guard’s position that it may use this type of evidence to bring an S&R complaint. (See ECF No.
15 at 27.) Davis’ challenge pertains to the adequacy of the factual evidence to support the Coast
Guard’s legal theory, not the legal theory itself. Therefore, the Court holds the Coast Guard had a
reasonable basis in law for bringing an S&R proceeding against Davis.
B. Basis in Fact
Next, this Court must determine whether there was substantial evidence in the record to
support a finding that the Coast Guard’s position had a reasonable basis in fact.
Davis argues the Coast Guard was not substantially justified at any time in the underlying
proceeding because it failed to investigate, as required by the Manual, whether the collection

13

procedure used to obtain Davis’ urine specimen was in accordance with the Manual. (See ECF
No. 15 at 23-27; AR0423.) The Coast Guard does not dispute that it failed to conduct an
investigation into these procedures until after the S&R proceeding was continued. (PSOF ¶¶ 45,
56, 92; DSOF ¶¶ 58, 80.) Davis contends the ADSEP Board unreasonably assumed the collection
of Davis’ urine specimen was done properly, without conducting any investigation. (ECF No. 15
at 25-26.) According to Davis, this assumption tainted the entire process, diminishing the key
evidence the Coast Guard relied on to bring the S&R complaint—making the factual basis
supporting its claims unreasonable. (See id. at 27.)
Davis also argues that the ALJ’s initial decision was not supported by the record. (See id.
at 27-33.) Davis challenges the finding that there was evidence of a positive drug test to support
the Coast Guard’s theory due to the lack of an investigation into the collection procedures. (Id. at
27-28.) He also disagrees with the ALJ’s reliance on the testimony of YNC Heath to conclude
that the Coast Guard’s factual allegations were justified. (Id. at 28-29.) Davis points out that YNC
Heath was not interviewed by CGIS prior to the empaneling of the ADSEP Board, or by the S&R
prosecutor prior to the filing of the S&R Complaint. (Id. at 28.) Therefore, Davis concludes the
Coast Guard could not have relied on what it did not yet know when it filed the S&R complaint
against him.
Davis also argues that the ALJ’s reliance on certain evidence was misplaced. Specifically,
he argues the ALJ’s reliance on the investigation that was actually conducted by CGIS was flawed
because its focus was not whether a drug incident actually occurred. (Id. at 30-31; see also n. 9,
supra.) Additionally, he contends that the reliance on the Urinalysis Provider’s Check List was
also flawed because he initialed it before he saw the label, conflicting with the Manual’s procedure.
(Id. at 32; see also n. 8, supra.)

14

The Coast Guard argues its position was substantially justified in fact because the Coast
Guard reasonably relied on the evidence of Davis’ urinalysis test. (See ECF No. 13-2 at 14-19.)
The Coast Guard maintains that prior to filing the S&R complaint, it conducted an adequate
investigation and that Davis had the opportunity to present evidence and testimony at the ADSEP
hearing, which he did. (See id. at 15-19.) Based on this activity, the Coast Guard argues that it
was substantially justified in filing the S&R complaint. (Id.) The Coast Guard also argues the
reasonable connection between the facts alleged and the legal theory advanced was severed when,
for the first time, evidence and testimony was presented showing that the sample that had tested
positive for cocaine metabolites was not Davis’ sample. (Id. at 19.)
Based on a review of the record below, the Court holds that the failure to make an award
of fees or other expenses in this case was unsupported by substantial evidence. The Manual setting
forth the collection procedures states that “[i]f the evidence of a possible drug incident includes a
positive urinalysis result, the command should also determine whether the urinalysis was
conducted in accordance with this Article and whether the collection and chain of custody
procedures were properly followed.” (AR0423.) It is undisputed that the Coast Guard failed to
make this determination prior to the ADSEP proceeding or the filing of the S&R complaint. The
Coast Guard did not interview YNC Heath to review the procedures she employed and did not
make any effort to inspect Davis’ sample bottle.12 The Manual’s provision requiring a review of
the collection and chain of custody procedures is certainly a safeguard to quickly and effectively

12

The Court notes that the Coast Guard makes much of when it first saw the sample bottle.
(See, e.g., DSOF ¶¶ 58, 61; ECF No. 13-2 at 18-19.) However, there is nothing in the record to
suggest that the sample bottle was not accessible to the Coast Guard after it was sent to Tripler
Lab for testing. Moreover, at the S&R hearing, the Coast Guard demonstrated the ease in which
the label information could be reviewed by sending photographs of the sample bottle label to
Davis’ observer who testified via telephone. (See DSOF ¶¶ 73-74.)
15

identify breakdowns in the collection procedure, such as what happened here. Moreover, when
the integrity of the collection procedure is in doubt, the strength of a positive urinalysis test as
evidence of drug use is diminished. See, e.g., U.S.C.G. v. Westgate, SR-2001-26 (Nov. 15, 2001);
U.S.C.G. v. Kirk, SR-1999-03 (Nov. 2, 1999). If the Coast Guard had followed its own procedures
and reviewed the initials on Davis’ sample bottle following Tripler Labs report of a positive
confirmed urinalysis result, it would have been alerted to a significant discrepancy. The Coast
Guard’s reliance on a positive urinalysis result to initiate proceedings against Davis, without
determining whether the collection and chain of custody procedures were properly followed, as
required by its own Manual, is unreasonable.
The Coast Guard’s reliance on Davis’ Urinalysis Provider’s Check List to support its claim,
without any investigation into the collection procedure or chain of custody, is similarly
unreasonable. Davis’ Urinalysis Provider’s Check List is not a substitute for the Coast Guard’s
own investigation into the collection procedures and chain of custody. For example, the Coast
Guard never investigated at what point in the collection process Davis completed his Check List.
Had the Coast Guard done so, it would have received differing accounts from Davis and YNC
Heath, which would have required further investigation. (See PSOF ¶ 66; DSOF ¶ 17.)
Both the ALJ and Commandant reasoned that the Coast Guard’s basis in fact was
substantially justified because there was no evidence suggesting that the testing of Davis’ urine
sample was conducted improperly. This reasoning misses the point. The lack of evidence
regarding the collection procedure does not immunize the Coast Guard from failing to conduct an
investigation in accordance with its own Manual. Moreover, as the Coast Guard admits in its brief,
“the question is whether the agency’s position based on what it knew or reasonably should have
known at the time, was substantially justified.” (ECF No. 13-2 (emphasis added).) The Court

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finds the Coast Guard reasonably should have known that the collection procedures were
compromised prior to initiating the two proceedings against Davis.
Likewise, the Court finds the additional evidence relied on by the ALJ and Commandant
is inadequate to support the conclusion that the Coast Guard’s position was substantially justified
in fact. There was no witness testimony establishing drug use by Davis. Davis’ statements to the
CGIS investigators were not admissions of drug use. Davis vehemently denied that he had ever
used cocaine, but believing the drug test result was accurate, speculated as to how he could have
involuntarily ingested cocaine. This falls short of substantial evidence. The ability of the Coast
Guard to rely on YNC Heath’s testimony is also suspect. It is undisputed that YNC Heath was
never interviewed prior to the S&R hearing. Therefore, it is impossible for the Coast Guard to
have relied on her testimony in deciding to file the S&R complaint.
Because the ALJ and Commandant’s finding that the Coast Guard was substantially
justified in fact is unsupported by substantial evidence summary judgment in favor of Davis is
warranted.
C. Remand
Defendant contends that we should remand this case to the Coast Guard for a determination
as to the amount of reasonable attorney’s fees and expenses in the first instance. (See ECF No.
13-2 at 24-25; ECF No. 16 at 13-14.) Defendant argues that “[b]ecause the majority of the
requested fees represent time incurred in administrative proceedings before an administrative law
judge, it is appropriate for that judge to conduct such an evaluation.” (See ECF No. 16 at 13.) The
Court agrees and remands this matter to the Coast Guard for a determination of the amount of
reasonable attorney’s fees and expenses to be awarded.

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IV.

CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment (ECF No. 15)

is GRANTED in part and REMANDED in part and Defendant’s Motion for Summary Judgment
(ECF No. 13) is DENIED. Specifically, this Court GRANTS summary judgment in favor of
Davis as to his entitlement to recover attorney’s fees and expenses from the Coast Guard under the
EAJA and REMANDS to the Coast Guard for a determination of the amount of reasonable
attorney’s fees and expenses to be awarded. An appropriate Order will follow.

Date: July 26, 2017

/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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