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JOHNF. MEADOWS. SBN23050 LEOPOLDO J.CHANCO, SBN136083 BRTINILLP SINLTNU Suite400 333PineStreet,

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SanFrancisco,CA 94104-3311 00 Telephone: 415.362.97 Facsimile: 415.362.97 07 j meadows@sinunubrui. com I chanco@sinunubruni.com

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Attorneys for Plaintiff CAPTAIN JOHN J. COTA

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UNITED STATESDISTRICTCOURT

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FORTHE NORTHERNDISTRICTOF CALIFORNIA

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SAN FRANCISCO DIVISION

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CAPTAIN JOHN J. COTA.

COMPLAINT FOR JUDICIAL REVIEW. VIOLATTON OF DUE PROCESS, DECLARATORY RELIEF AI\D ATTORNEY'S FEES

Plaintiff. 74 V. 15

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TINITED STATES OF AMERICA, DEPARTMENT OF HOMELAND SECURITY. UNITED STATES COAST GUARD, AND UNITED STATES COAST GUARD COMMANDANT.

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Defendants.

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CaseNo.:

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COMES NOW CAPTAIN JOHN J. COTA, Plaintiff ("Captain Cota" or "Plaintiff') in the above-captionedaction and complains againstdefendantsUNITED STATES OF AMERICA, DEPARTMENT OF HOMELAND SECURITY, UNITED STATES COAST GUARD and the UNITED STATES COAST GUARD COMMANDANT as more fullv set fonh below: SUMMARY This complaint arisesfrom the final agencyaction decision datedFebruary 13,2Ol2 by the United StatesCoast Guard Commandant,sustainingthe decision of February 28,201I DECLARATORYRELIEFAND COMPLAINTFORruDICIAL REVIEW,VIOLATION OF DUE PROCESS, ATTORNEYSFEES


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denied by the Coast Guard's National Maritime Center ("Coast Guard NMC") which plaintiff s application for the return and renewal of his Coast Guard-issuedlicense and

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Coast merchantmariner's document,both of which were relinquishedby Plaintiff to the

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not Guard on Decernber 21,2007 pursuantto a Voluntary Deposit Agreement and later

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of that retumed to plaintiff upon dernandeven though Plaintiff had fully met the terms

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agreement,to wit: passinga physical examination and being declaredfit for duty. This

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complaint seeksfirst, judicial review overturning the Coast Guard Commandant'sfinal

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agencyaction under the Administrative ProcedureAct. In separateand independentcounts,

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this complaint also asksthe Court to determinethat the Coast Guard's internal administrative

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review which producedthe final agencyaction is unconstitutional in that the process

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employed deprived Plaintiff of his due processrights. PARTIES

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1.

Plaintiff Captain John J. Cota is a citizen of the United States,a residentof

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petaluma, SonomaCounty, California who, at all times material, was the holder of a United

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StatesMerchant Marine Officer's LicenseNumber 1l00254,8th Issue and datedJanuary6,

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2005,issuedin San Francisco,California, by the United StatesCoast Guard as a Master of

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Steamor Motor Vesselsof not more than 1600 grossregisteredtons (domestictonnage),

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3000 grosstons (International TonnageConvention ["ITC"]) upon Oceans;also, Third Mate

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of Steamor Motor Vesselsof any grosstons upon Oceans;also Master of Towing Vessels

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Upon Oceansand Western Rivers; also First Class Pilot of any grosstons from Seato San

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FranciscoBay, from Dumbarton Bridge, including Redwood City, Richmond Inner Harbor,

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Oakland inner-middle-outerharbor, and Alameda to San Pablo and Suisun Bay to Antioch

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Bridge, including Mare Island Straits and Hunters Point; and, Radar Observer(Unlimited).

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Captain Cota was also the holder of a Coast Guard-issuedmerchantmariner's documentNo'

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073958 with endorsernentsfor unlicensedratings in the Deck Department,including Able

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Seaman,Wiper and Steward'sDepartment(food handler). Coast Guard-issuedlicensesand

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merchantmariner's documentshave sincebeen consolidatedinto a single Merchant

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Mariner' s Credential (MMC). DECLARATORYRELIEFAND TION OF DUE PROCESS, ATTORNEYSFEES


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an agencyof The defendantUnites StatesCoast Guard ("Coast Guard") is

the

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meaning of the Administrative defendantsovereignthe United Statesof America within the _l Guard commandant is the JI ProcedureAct, 5 U.S.C. $ 702 et. seq. The United Statescoast 4 l Commanding Officer of the Coast Guard. At all relevant times hereto, the Coast Guard was I sl and is part of the defendantDepartmentof Homeland Security, an executive agencyof the 6 l defendantsovereignunited Statesof America. The Coast Guard resideswithin this district Guard Sector San at various locations, including, but not limited to Commander,Coast I 8 l Francisco,PreventionDepartment,Building 14, Coast Guard Island, Alameda' CA 94501 custody of Captain which enteredinto the aforesaidVoluntary Deposit Agreement and took licenseand merchantmariner's documenton Decembet21,2007, 1 O Cota,sCoastGuard-issued Island, San 1 1 " and commander, u.s. coast Guard, sector San Francisco,I Yerba Buena license 1,2 Francisco,cA 94130,which refusedto retum captain cota's coast Guard-issued Cota applied for 1 3 and merchantmariner's documentbefore each expired, after which Captain (now referred to I4 renewal of his Coast Guard-issuedlicense and merchantmariner's document being the 15 as a Merchant Mariner's credentialiMMC), which was denied with said denial

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subjectof this comPlaint. JURISDICTION

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plaintifPs claims ariseunder the Constitution and laws of the United States

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has and this is an action seekinga declarationof rights and accordingly, this Court

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jurisdiction over this matterpursuantto 28 U.S.C. $$ l33I and220l.

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4.

Plaintiff s action is also an appealunder 5 u.s.c. $ 702 of a final agency

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form of a letter dated action decisionby the Commandant,United StatesCoast Guard, in the of the coast Guard February 13,2olzwhich denied captain cota's appealof the decision and correct copy NMC denying captain cota's application for renewal of his MMC. A true

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of that letter is attachedhereto as Exhibit "l'"

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5.

This action also seeksan independentdeterminationthat the Coast Guard's

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due process refusal to return and renew Plaintiff s MMC constitutesviolations of the

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provisions of the United StatesConstitution, Article 5' CESS,DECLARATORYRELIEFAND ATTORNEYSFEES


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6.

The Commandant'sdecision of February 13,2012 statesthat it constitutes

final agencyaction. 7.

Personaljurisdiction exists over Plaintiff and the Defendantsby virtue of their

presencewithin this district. VENUE

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Venue is properin this district under 28 U.S.C. $1a02(a)becausePlaintiff

resideswithin this district in Petaluma,CA. INTRADISTRICT ASSIGNMENT

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9.

This lawsuit should be assignedto the San FranciscoDivision of this Court

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becausea substantialpart of the eventsor omissionsgiving rise to the lawsuit occurredin

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San Franciscoand Oakland. PROCEEDINGS BELOW AND FACTUAL BACKGROUND

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10.

CaptainCota first went to seain 1966as a messman.He enteredCalifomia

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Maritime Academy in 1967,Ieft to continue working at sea,retumed in 1969 and graduated

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with a third mate's licensein 1972. From L974to 1977,he sailedas a masteron tugs

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worldwide. He returned to San Franciscoin 1977to begin working on his pilot trips in order

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to qualiff as a San FranciscoBar Pilot.

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CaptainCota finishedhis pilot training in 1980and,in February1981,became

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a pilot licensedwith the Stateof Califomia by the Board of Pilot Commissionersfor the Bays

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of San Francisco,San Pablo, and Suisun (the "State Board of Pilot Commissioners.") At

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that time, he began a long and distinguishedcareeras a maritime pilot with the San Francisco

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Bar Pilots Association.

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12.

As a First Class Pilot, any grosstons, Captain Cota was required to undergo a

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physical examination eachyear. Beginning in2007, the Coast Guard required that each

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pilot, nationwide, file a copy of hisftrer annualphysical examination report with hisArerlocal

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Coast Guard Regional Examination Center (REC). The local Coast Guard REC which is

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under the command of U.S. Coast Guard Sector San Francisco("San FranciscoCoast Guard

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REC") is locatedat OaklandFederalBuilding, North Tower, 1301Clay Street,Suite 180N, COVPTATNTFOR JUDICIAL REVIEW,VIOLATION OF DUE PROCESS,DECLARATORYRELIEFAND ATTORNEYSFEES


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Oakland, CA94612-5200. Even though not required, Captain Cota voluntarily filed his 2006

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physical exam report with the San FranciscoCoast Guard REC at the sametime (in April

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2007)that he filed his 2007 report. Both of thesephysical examinationreports, and Captain

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Cota's previous physical examinationreports, were administeredby one of four physicians

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approvedby the California StateBoard of Pilot Commissioners,licensedby the Stateof

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California, and acceptedby the Coast Guard as qualified to perform licenserenewal

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physicals. At the San FranciscoCoast Guard REC, Captain Cota's2006 and 2007 physical

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examinationreports were reviewed by Chief QuartermasterHogge, managerof the Pilotage

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Program, and then were placed in Captain Cota's Coast Guard licensing file. The Coast

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Guard did not notiff Captain Cota of any questionsor concernsregarding either of these

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annualphysical examinations.

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On November 7, 2007, an allision (a collision with a stationaryobj ect by a

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moving vessel)occurred in densefog betweenthe Hong Kong flag Container Ship COSCO

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BUSAN and the fendersaroundthe baseof the "D" tower of the San FranciscoOakland Bay

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Bridge. Plaintiff Captain Cota was then serving as the pilot aboardCOSCO BUSAN. As a

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result of the allision, apart of the hull of the ship on the port side was ripped open and she

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spilled approximately 53,000 gallons of fuel oil into the Bay.

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14.

On Novernber 30. 2007 the United Statesfiled a civil lawsuit in federal court

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againstRegal StoneLimited (owner of COSCO BUSAN), Fleet ManagementLtd. (Operator

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of COSCO BUSAN) and Plaintiff seekingdamagesfor resourceinjuries causedby the spill

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and for costsincurred cleaningup the spill. Plaintiff and the United Statesenteredinto a

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ConsentDecreein the caseof United Statesof America v. M/V COSCOBUSAN, et. al., Case

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No. C 07-6045(SC)which containsthe following provision:

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,'ll3S.... nothing in this ConsentDecree shall, of itself, prohibit or restrict John

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J. Cota from bringing an administrativeproceedingagainstany governmental

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entity or agency,including the United StatesCoast Guard, for the sole and

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exclusive purposeof seekingnon-monetaryrelief for the reinstatement, 2B

DECLARATORYRELIEFAND COMPLAINTFOR JUDICIAL REVIEW,VIOLATION OF DUE PROCESS, ATTORNEYSFEES


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renewal or issuanceof any professionalmariner's license, it being expressly

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understoodand agreedthat such an administrativeproceeding,if any is filed,

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shall be limited solely, exclusively, and without exception to non-monetary relief, any potential claims of John J. Cota for monetary relief of any kind whatsoeveras againstthe United Statesand other Plaintiffs having been resolved fully, completely, and finally, pursuantto this ConsentDecree. 15.

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On March 17,2008,Plaintiff was suedby the United Statesin Action No. 08-

0160, U. S. District Court for the Northern District of California, for misdemeanorviolations

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and l32l(b)(3), andthe MigratoryBird of the CleanWaterAct, 33 U.S.C.$$ 1319(c)(1)(a)

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protectionAct, 16 U.S.C. $$ 703, 707(a)arising from the COSCO BUSAN allision. This

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casewas assignedto the Hon. District Judge SusanIllston. 16.

A subsequentsupersedingindictment addedtwo felony countsunder l8

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U.S.C. g 1001 having to do with allegedlying when Plaintiff claims he forgot to list certain

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medicationson his 2006 and 2007 annualphysical exam forms. Thesefelony chargeswere

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later dropped as part of a plea bargain enteredinto on March 6,2009, wherein Captain Cota

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agreedto plead guilty to the two criminal misdemeanorchargesfor oil pollution. On July

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17,2O0g,hewas sentencedby JudgeIllston to ten (10) monthsin a Federalprison,which he

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served. The Plea Agreement approvedby the Court in her entry of Judgmentstated"I further

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understandthat I may seekthe renewal of my Coast Guard licensesin January2010 and to

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obtain the refurn of the licensenow on deposit with the Coast Guard pursuantto a voluntary

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deposit agreemententeredinto betweenthe Coast Guard and me on December21,2007.'

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The Plea Agreernentthen continuesto statethat on return and renewal of the license, Capt.

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Cota agreesnot to use that part of the license allowing him to pilot vesselsor to act as Master

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of vesselsof not more than 1,600grosstons during the one year period of supervisedrelease

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but that no other license, including that as a Third Mate, is affectedby the Plea Agreernent,

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"unlessotherwise prohibited by the Coast Guard."

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17.

In the Plea Agreement,Captain Cota has admitted that he was at fault in

COMPLATI\ITFORXJDICIAL REVIEW,VIOLATION OF DUE PROCESS,DECLARATORYRELIEFAND ATTORNEYSFEES


proximately causingthe allision. However, in doing so, he did not assumesole fault for the allision. Other causesinclude (1) the ship's master's ineffective oversight of the vessel's progress;(2) the ship operator's failure to adequatelytrain crewmembersand (3) while in communicationwith the Pilot by radio severalminutes before the allision, the radar observer at CoastGuard San FranciscoVessel Traffic Service failed to follow his instructions to warn vesselsof hazardsto navigation and failed to communicateto the Pilot that the ship was offcourseand heading directly for the Bridge's "D" Tower. The Plea Agreement between Captain Cota and the U.S. Governmentrecognizesthat, when the ship's Bosun radioed a warning in Chinesethat he saw the bridge pier through the fog at about the sametime as 10

Captain Cota saw the bridge pier, Captain Cota gave multiple rudder commandsthat may

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have preventedfar worse damagesto the ship, the San FranciscoOakland Bay Bridge and a

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potentially worse oil spill.

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18.

On Decernber 6,2007, the StateBoard of Pilot Commissionersfor the Bays of

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San Francisco,San Pablo and Suisun Incident Review Committee filed an Accusation

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seekingsuspensionor revocation of Plainti{Ps statepilotage license. Plaintiff filed a timely

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Notice of Defense. The StateOfficb of Administrative Hearings assignedan Administrative

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Law Judge. The federal criminal trial date was extendedafter the two felony chargeswere

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added,yet the StateAdministrative Law Judge assignedto presideover the Board of Pilot

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Commissionershearing would not grant any further extensions. Plaintiff was unable to

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defendhis Statelicensebefore his scheduledcriminal trial as doing so would have

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necessitatedPlaintiff s testi$ing on his own behalf at the Statehearing, which he could not

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risk with the pending criminal trial. On June 30, 2008 Plaintiff gave notice of his retirement

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as a SanFranciscoStatebar Pilot.

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19.

In Decernber,2007,the CoastGuardoffered Plaintiff the choiceof a

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Suspension& Revocationproceedingwith a "Charge of Physical Incompetence"or,

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alternatively, entering into a Voluntary Deposit Agteement and depositinghis credentials

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with the Coast Guard. Plaintiff believed that the deposit was the best option in that, if he

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DECLARATORYRELIEFAND COVPIEINT FOR JUDICIAL REVIEW,VIOLATION OF DUE PROCESS, ATTORNEYSFEES


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was found fit for duty by the examining doctor, the Coast Guard, upon verification of the

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results,would return his license.

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Plaintiff therefore chosethe deposit agreementoption and enteredinto a

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written agreernentwith Coast Guard whereby he would deposithis credentialswith them

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until such time as he would submit to Coast Guard a physical examinationreport from a

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"third-party independentlicensedphysician" stating that he was "fully fit, in all respects,to

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perform my duties aboardship." On December 21,2007, the Voluntary Deposit Agreement

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was signedby both parties and Captain Cota depositedhis license and seaman'sdocument

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with legal officers of the Coast Guard. Seea true copy of the deposit agreementattached

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hereto marked Exhibit "2." 21.

When the National TransportationSafety Board (NTSB) conductedits public

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hearingsin April 2008 Plaintiff declined to testify. It was not a refusal to cooperate-hehad

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alreadybeen questionedtwice by the Coast Guard and once by NTSB without a grant of

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immunity. Plaintiffls election to not testiffbefore NTSB funher was due to the aforesaid

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pending criminal action.

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22.

On October20,2008, Dr. Allen F. Smoot,Plaintiffls family physician,

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examinedPlaintiff and found him fully fit for duty and competentto continue sailing. Dr.

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Smoot reviewed the Coast Guard's Navigation and Vessel Inspection Circular ("NVIC") No.

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NVIC No. 4-08 issuedon September15, 2008. Dr. Smootmadehis 02-98and its successor,

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examinationby applying the standardsset forth in NVIC No. 4-08. In accordancewith his

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findings, Dr. Smoot preparedand signedthe Merchant Mariner Physical Examination Report

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(CoastGuard Form CG-719K) on October20,2008.

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23.

On February 3,2009, the required Merchant Mariner Physical Examination

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Report (Coast Guard Form CG-719K) signedby Dr. Smoot was submittedto Coast Guard

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NMC for evaluationby its Medical Evaluation Branch. This was sentto the Coast Guard

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NMC directly, and not to Coast Guard Sector San Francisco,since as of August 2008, the

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Coast Guard NMC assumedmedical evaluation approvalsand license-issuingdecisionsfrom

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REC San Francisco. Along with Dr. Smoot's report, Plaintiff submitted a sleepstudy DECLARATORYRELIEFAND COMPLAINT FORruDICIAL REVIEW,VIOLATION OF DUE PROCESS, ATTORNEYSFEES


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performed by Dr. David Claman, Chairman, Director of the SleepClinic at the University of

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Califomia. San Francisco,which included a study of the effects of Provigil on Plaintiff.

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plaintiff also submitted a report from his ophthalmologist. A copy of Plaintiff s letter request

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of February 3,2009 was also sent to Commander,Coast Guard Sector San Francisco,

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prevention Department,the office which signed the Voluntary Deposit Agteement and took

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custody of Captain Cota's license and merchantmariner's document,thereby fully apprising

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and informing that office of Captain Cota's efforts seekingretum of his depositedlicense and

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merchantmariner's document. Receipt of Plaintiff s letter requestof February 3,2009

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seekingmedical review and return of Plaintiff s licensepursuantto the Voluntary Deposit

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Agreementwas acknowledgmentby T. Bassett,Chief, Mariner EvaluationsDivision, Coast

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Guard NMC, by email on February 11,2009. Ms. Bassetdid not advise that the letter

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requestfor retum of Captain Cota's depositedlicense and merchantmariner's should have

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been sent to Coast Guard Sector San Francisco,and wrote "Your letter will be hand delivered

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directly to the Medical Evaluation Branch [of Coast Guard NMC] for review. I will update

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you in approximately one week regarding the statusof this review."

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24.

Ms. Bassettprovided no update as to the status,and did not respondto follow-

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up inquiries. Next, over six months later, the Coast Guard refusedto return Captain Cota's

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licensepursuantto the Voluntary Deposit Agreementbecausethe Coast Guard ostensibly

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determinedthat Captain Cota had not satisfiedthe terms and conditions of the voluntary

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deposit. The Coast Guard notified Captain Cota of its refusal by a letter from Captain P.M.

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Gugg, Officer in Charge of Marine Inspection (Coast Guard OCMI), Sector San Francisco

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datedJuly 15, 2009,but this letter was not receivedby PlaintifPs counseluntil August 26,

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2009. In the letter, the Coast Guard OCMI noted that he was acting in the matter as the

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Coast Guard OCMI becauseSector San Franciscohad executedthe Voluntary Deposit

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Agreanent for the Coast Guard.

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25.

The Coast Guard OCMI claims thatCaptain Cota did not comply with the

terms of the Voluntary Deposit AgreernentbecauseDr. Smoot was not a "third party,

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COMPLAINT FOR JUDICIAL REVIEW, VIOLATION OF DUE PROCESS, DECLARATORY RELIEF AND ATTORNEYS FEES


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independentphysician" within the meaning of the Voluntary Deposit Agreernentsincehe had

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beenCaptainCota's primary carephysiciansince 1973.

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26.

The Coast Guard OCMI doesnot explain how the mere fact that Dr. Smoot

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had been Captain Cota's long time primary carephysician presumptively preventedhim from

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making a neutral and detachedassessmentof Captain Cota's fitness, and contradictsthe fact

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that, nationwide, many thousandsof mariners have physicalsperformed by their family

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physicianswhich have been acceptedby the Coast Guard. The Coast Guard never contacted

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Dr. Smoot to assesswhether he had any bias, let alone discuss,per the Voluntary Deposit

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Agreernent,Captain Cota's condition and ability to perform duties. At all relevant times

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herein, Dr. Smoot has always been an independent,experienced,private generalpractitioner

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who has many patients in addition to Captain Cota. The Coast Guard'sclaim of bias by Dr.

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Smoot lacks any evidentiary support and demonstratesits own bias. The Coast Guard OCMI

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then set fonh further grounds for finding Captain Cota medically unqualified for duty. The

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CoastGuard OCMI recommendedthat Captain Cota be examinedby anotherindependent

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physician.

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27.

The Coast Guard OCMI letter did not statean appealoption, advising only

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that anew physical exam conductedby a "Third-Patty,Independent Physician" could be

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submitted and, if done, that it should addressall conditions listed in the letter.

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28.

After receipt of the Coast Guard OCMI's letter, Captain Cota immediately

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locatedDr. Baxter Bell, a physician who previously did not know Captain Cota. Dr. Bell

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examinedCaptain Cota and found him fit for duty. Dr. Bell filled out a CG Form 7l9K

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report of physical examination dated October 13,2009, so stating.

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29.

On January6,2010, CaptainCota's licenseand merchantmariner's document

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depositedwith the Coast Guard expired due to the passageof time. Under 46 C.F.R. $

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10.277(f),CaptainCota had a one year's graceperiod to seekrenewalof his MMC.

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30.

Captain Cota submitted an application for renewal of his MMC on June 28,

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DECLARATORYRELIEFAND COMPLAINT FORruDICIAL REVIEW,VIOLATION OF DUE PROCESS, ATTORNEYSFEES


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REC. This letter also contestedthe claims of the Coast Guard OCMI containedin his letter

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of July 15,2009 and addressedeachmedical concernraisedby the Coast Guard OCMI.

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31.

On July, 7,2010, the CoastGuardNMC acknowledgedreceiptof Captain

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Cota's application for renewal and requestedadditional medical documentationon eight

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subjects,some of which duplicated issuesraisedby the Coast Guard OCMI.

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32.

Captain Cota submitted all documentationresponsiveto the Coast Guard

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NMC's requeston December 3,2010. At all relevanttimes, CaptainCota has cooperated

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with the Coast Guard NMC's requestsfor information for both the return and renewal of his

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MMC. In the process,CaptainCota's medical expensesaloneexceeded$20,000.00.

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33.

In a letter datedJanuary24,2011, the CoastGuardNMC informed Captain

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Cota that he was not medically qualified for renewal of his MMC becausehe had Obstructive

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SleepApnea and used the stimulant Provigil. The Coast Guard NMC further statedthat it

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"does not currently consider Obstructive SleepApnea requiring the use of the stimulant

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Provigil, acceptablefor safety-sensitivepositions."

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34.

In its letter of January24,2011, the NMC statedthat CaptainCota could

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requestreconsiderationof its decision or apply for a documentof continuity (a document

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which, upon request,can be issuedto an applicant for renewal who presently is unwilling or

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unable to meet requirements,which maintains the individual's eligibility for renewal by

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enabling the individual to obtain a properly endorsedand valid MMC at any time by

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satisffing requirementsfor renewal). If reconsiderationwas sought,the NMC requestedthat

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Captain Cota work with his physiciansto present"objective evidencethat the risk to

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maritime and public safety has been mitigated." The NMC also requestedupdated

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evaluationsfrom Captain Cota's sleep specialist. The NMC further suggestedhaving

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CaptainCota's sleepspecialistcontactthe NMC's Dr. L. G. Gillis, Chief of its Medical

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EvaluationsDivision and FederalMaritime Surgeon,with any questionsabout follow-up

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testing or guidelines.The Coast Guard NMC also requestedthat any requestfor

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reconsiderationinclude updateson Captain Cota'srecent right humerus fracture and his

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pharmacy-dispensingrecords from July 2010 to date. COMPLAINT FOR JUDICIAL REVIEW, VIOLATION OF DUE PROCESS, DECLARATORY RELIEF AND

ATTORNEYSFEES


1

35.

Captain Cota timely sought reconsiderationof the Coast Guard NMC's In support of his requestfor

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decision declining renewal of his MMC on February ll,20ll.

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reconsideration,Captain Cota submitted (l) a report and CV from his sleep specialist,Dr.

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David Claman; (2) a report from his orthopedic surgeonabout his right humerus fracture, (3)

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a report from Captain Cota's family medicine physician; (4) a report from Dr. Valery

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Tarasenko,Advanced Pain ManagernentInstitute, and (5) Captain Cota's pharmacy records

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from July 8, 2010 to January 24,2011. Captain Cota authorizedthe Coast Guard to speakto

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Drs. Claman and Barlas about Captain Cota's use of Provigil and his right humerus fracture,

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respectively.

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36.

Dr. Claman,in his letter to Dr. Gillis datedFebruary8,2011, noted that

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Captain Cota's treating physician began Provigil treatmentin 2006, and that Captain Cota's

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combineduse of CPAP treatmentand Provigil are effective in treating his sleepdisorder. Dr.

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Claman also advisedthat Provigil is FDA-approved and approvedfor use in the U.S. Air

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Force, that Provigil does not diminish cognitive performance,and that it is not mind or mood

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altering.

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37.

Dr. Claman further noted that his researchindicated that the Coast Guard's

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position on Provigil may be basedupon unpublishedguidelines which do not reflect optimal

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FDA-approved medical therapy. He requesteda call from Dr. Gillis to discussconcernsand

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an opportunity to address/answerthem in the event Dr. Gillis was not persuadedto

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reconsiderher deciston.

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38.

Nobody from the Coast Guard NMC ever called Dr. Claman to discuss

CaptainCota's OSA, his use of Provigil or the CoastGuard's concerns. 39.

On February28,2011, CaptainA. S. Lloyd, then CommandingOfficer of the

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CoastGuard NMC, denied Captain Cota's requestfor reconsiderationof the Coast Guard

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NMC's decision denying retum and renewal of his MMC. The Coast Guard NMC

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acknowledgedthat Provigil is a "FDA approvedindication" and that Provigil is usedby the

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military in certain mission critical operationalcircumstances.However, the Coast Guard

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opined that the severity of Captain Cota's obstructive sleep apnea("OSA"), combined with

COMPLAINT FOR JUDICIAL REVIEW, VIOLATION OF DUE PROCESS, DECLARATORY RELIEF AND ATTORNEYS FEES


1

his use of a stimulant to "maintain adequatefunctioning," posesa risk to maritime and public

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safety. The Coast Guard NMC also opined that Captain Cota's right humeral fracture had

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not healed sufficiently and his use of narcotic pain killers would prevent him from

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performing the tasks outlined in Enclosure(2) of the NVIC 04-08, Physical Ability

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Guidelines. The Coast Guard NMC advisedCaptain Cota that he could requesta formal

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appealwithin 30 days or apply for a documentof continuity. A copy of this letter is attached

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hereto as Exhibit "3."

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40.

On March ll,2}ll,

Dr. Clamanatternptedcalling Dr. Gillis, leaving a

voicemail messagerequestinga return call. On March 14,2011, Captain Cota wrote the

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Coast Guard NMC requestingclarification and documentation,such as publications or

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guidelines,supporting the Coast Guard's decision about OSA and the use of Provigil. The

t2

Coast Guard did not respondto either Dr. Claman's call or Captain Cota's requestfor

13

clarification.

I4

41.

Dr. Clamanattemptedto call Dr. Gillis againon March 23,2011. Unable to

15

get through to Dr. Gillis, Dr. Claman spoketo Mr. Brian Demaio of the NMC's Medical

16

Section. Dr. Claman was informed by Mr. Demaio that Coast Guard policy is that sleep

I1

apnealicenseeswho function with a CPAP or BiPAP alone can be grantedmedical waivers,

18

but not if they take Provigil or similar medication. As understoodby Dr. Claman, Captain

19

Cota could be deemedmedically fit and eligible for a waiver were he to ceaseuse of Provigil

20

and then undergo successfultesting. A secondclarification requestletter was sentto NMC

2T

on March 25,2011 wherein Captain Cota offered to discontinueusing Provigil and undergo

22

future testing (a sleep study and maintenanceof wakefulnesstest), and withdraw his

23

application if testing indicateshe could not function without Provigil if the Coast Guard

24

would agreesuccessfulresults would resolve concernsof unfitness. This clarification

25

requestaskedfor acknowledgementof receipt and that NMC extend the appealperiod to 30

26

days from the date of NMC's answerto the clarification request. NMC acknowledged

21

receipt of the request,but neither answeredthe requestnor advisedwhether the appealperiod

2B

would be extended. Therefore,to protect his rights, Captain Cota was forced to file an

DECLARATORYRELIEFAND COMPLAINT FOR JUDICIAL REVIEW,VIOLATION OF DUE PROCESS, ATTORNEYSFEES


1 2

administrative appeal. 42.

Captain Cota, on March 30,2011, filed an administrative appealpursuantto

3

46 C.F.R. $ 1.03-20with the Coast Guard NMC, dernandingboth the return and renewal of

4

his MMC.

5

the Voluntary Deposit Agreement in not retuming or renewing his license on receipt of not

6

one but three medical examinationreports (one by Dr. Smoot and two by Dr. Bell) declaring

1

Captain Cota fit for duty. The findings of fitness by thesetwo doctors were also buttressed

I

by the 2006 and 2007 physical examinationreports of the doctor who was appointedby the

9

StateBoard of Pilot Commissionersto perform the pilots'annual physicals.

10

43.

The appealwas basedupon the Coast Guard'sactions in breachingthe terms of

On April 29,2011, the Coast Guard NMC sent a memorandumto the Coast

11

Guard's Commandantforwarding Captain Cota's March 30,2011 appealand noting that

I2

Captain Cota's application for renewal of his MMC was denied becausethe severity of his

13

OSA required the use of the stimulant Provigil. The Coast Guard NMC further noted that

I4

CaptainCota did not meet Safetyand Suitability requirernentsof 46 C.F.R. $ 10.211(g)due

15

to his criminal conviction for violation of environmentallaws. Consequently,the Coast

L6

Guard NMC imposed a one year assessmentperiod (a time period during which an

T1

applicationis deemeddisapproved)from August 6,2010 to August 6,2011 pursuantto Title

18

46 C.F.R. Table 10.21l(g). The CoastGuardneverinformed CaptainCota aboutthis one

I9

period, eventhough46 C.F.R. $ 10.211(e)providesthat when an application year assessment

20

is disapprovedthe applicant is to be notified in writing of that fact, the reasonor reasonsfor

27

disapproval,and advisedof the appealproceduresin 46 C.F.R. $ 1.03. CaptainCota was

22

unawareof the imposition of the one year assessmentperiod until receipt of the aforesaid I Memorandum. The CoastGuard NMC also conducteda Professional

23

Apil29,20l

24

Qualification Evaluation and determinedthat Captain Cota met all professionalrequirernents

25

to renew his credentialsexcept for (1) submitting proof of ongoing training and drills or

26

completion of a practical demonstrationbefore a designatedexaminer to renew his Master of

21

Towing Oceansand Westem Rivers license endorsementand (2) payng the required fee. A

28

copy of this April 29,2011 Mernorandumis attachedhereto as Exhibit "4."

DECLARATORYRELIEFAND COMPLAINT FOR JUDICIAL REVIEW,VIOLATION OF DUE PROCESS, ATTORNEYSFEES


1

44.

After receipt and review of the NMC April 29, 2011 memorandumto the

2

Coast Guard Commandantexplaining why Captain Cota's application for renewal was

3

denied, Captain Cota sent a letter to the Commandant'sdesignatedrecipient for

4

correspondence,Ms. PamelaMoore, suggestingin lieu of the appealthat the Commandant

5

remand the appealto NMC with instructionsthat Captain Cota be approvedfor the renewal

6

of his license after the completion of the assessmentperiod if he meets Coast Guard NMC's

1

medical and professionalqualifications as set forth in the memorandum. Captain Cota,

8

realizingit would take time to review the appealand, if granted,more time to comply with

9

additional professionalrequirements,did not appealthe assessmentperiod which was to end

l0 11

on August 6,2011. The letter to Ms. Moore, datedMay 20,2011, was never answered. 45.

A secondletter to Ms. Moore, datedJune 15, 201I, also was never answered.

t2

Captain Cota, frustratedover NMC's non-responseto his offers to resolve the medical

13

reasonsstatedby the Coast Guard as groundsfor denial (by discontinuing use of Provigil and

I4

withdrawing his application for renewal if unsuccessfulin going off Provigil), on April 20,

15

2011 initiated an inquiry to his Congressionalrepresentative,The Honorable Lynn Woolsey,

1,6

the U.S. Representativefor California's 6ft Congressionaldistrict. RepresentativeWoolsey

L'1

then contactedthe Coast Guard and, on May 13, 2011, received a reply from the

1B

Commandantof the Coast Guard which included the following:

I9

"In Mr. Cota's requestto your office he asksthe question,would the NMC consider

20

him medically qualified if he submitted future evidenceof healing of the humeral

2I

fracture, and evidenceof discontinuing Provigil, or similar stimulants,and undergo

22

anothersleep study. In responseto Mr. Cota's question,if his fracture heals, and he

23

is able to perform the physical abilities outlined in NVIC 04-08, and he no longer

24

requiresthe use of a narcotic, or opiatelike pain medications,and he is no longer

25

taking Provigil, and he passesan MWT without sleepor naps, and without use of

26

Provigil, then he would qualify for a MMC."

21

46.

2B

This reply to RepresentativeWoolsey's inquiry from the Commandantof the

Coast Guard (although the identity of the actual signatory is unknown since the signatureis COI,TPLAINT TON JUDICIAL REVIEW, VIOLATION OF DUE PROCESS, DECLARATORY RELIEF AND

ATTORNEYSFEES


I a

3

redacted)clearly statedCaptain Cota "would qualiff for a MMC." The Coast Guard's reply gave CaptainCota every hope of renewal of his MMC were he able to meet theseclearly statedconditions which he had long before offered to meet.

4

47.

Defendant Coast Guard Commandant,through the Acting Director of the

5

PreventionPolicy Directorate (CG-54) ("PPD"), Captain Paul E. Thomas, respondedto

6

Captain Cota's appealand, in a letter datedFebruary 13,2012, denied his appeal. Although

'1

Captain Cota had but 30 days to file his appealand then offered to meet Coast Guard

I

requirementsas set forth by the NMC, the Coast Guard took l0-% months to answerwith its

9

denial.

10

48.

kr its denial letter, the Coast Guard Acting Director, PPD, deemedthe matter

11

of the Coast Guard OCMI's refusal to return Captain Cota's license and merchantmariner's

72

documentwhich had been on deposit with the Coast Guard since December 21,2007, was

13

not properly before him and he would not addressit. The Coast Guard Acting Director, PPD,

I4

noted that appealof the Coast Guard OCMI's decision should have been made to the Coast

15

Guard'sCommanderof the Eleventh Coast Guard District, which was not done. However,

L6

the Coast Guard Acting Director, PPD, failed to note that the Coast Guard OCMI, in his

I1

letter of July 15, 2009, did not appriseCaptain Cota of any appealrights or option, setting

18

forth insteadthat Captain Cota, were he to opt to continue to pursueretum of his license,

79

only had one option - to obtain anotherphysical exam and submit additional medical

20

information. In contrast,the Coast Guard letter of February 28,2011 advised Captain Cota of

2I

his right to requesta formal appealof Coast Guard NMC's denial of his requestfor renewal

22

of his license.Additionally, as indicated above,Captain Cota did not receive the Coast Guard

23

OCMI's letter datedJuly 15,2009 until August 26,2009. Thus,the thirty (30) day appeal

24

period had lapsedbefore Captain Cota received the Coast Guard OCMI's letter, thereby

25

depriving CaptainCota of opportunityto file an appeal. See46 C.F.R. $ 1.03-15.

26

49.

The Coast Guard Acting Director, PPD, claimed that the only issueproperly

27

before him on Captain Cota's appealwas whether the Coast Guard NMC acted appropriately

28

in denying Captain Cota's application for renewal. The Coast Guard Acting Director, PPD,

DECLARATORYRELIEFAND COMPLAINT FORJUDICIAL REVIEW,VIOLATION OF DUE PROCESS, ATTORNEYSFEES


noted that the NMC denied Captain Cota's renewal for three reasons: (l) Captain Cota was medically disqualified becauseof (a) the severity of his OSA, (b) his alleged dependencyon Provigil and (c) his unhealedhumeral fracture; (2) Captain Cota failed to meet the professionalqualification requirementsfor renewal becausehe did not participate in ongoing training and drills; and, period to expire on August 6, 2011 due (3) the NMC imposedan assessment to CaptainCota's convictionof environmentalcrimesunder 46 C.F.R. $ 10.211(g). The CoastGuard Acting Director, PPD, statedthat he would not addressthis issue 9 10

due to expiration of the assessmentperiod. 50.

In addressingthe first issue,the Coast Guard Acting Director, PPD, noted that

11

an independentreview of Captain Cota's medical fitness was performed by a reviewing

72

physician at CoastGuard Headquarters(Dr. Adrienne Buggs). Basedupon information

13

provided by Captain Cota and his physicians,this reviewing physician noted that Captain

I4

Cota's fracturedhumerushad healed and that his OSA was adequatelytreatedwith

15

continuouspositive airway pressure(CPAP) and Provigil, a changein Coast Guard's

16

position.

T1

51.

Notwithstanding the recommendationof the Coast Guard's reviewing

1B

physician that Captain Cota be granteda medical waiver, the Coast Guard Acting Director,

19

PPD, noted that a medical waiver would not be grantedbasedupon the outcome of the other

20

issues.

2I

52.

As for the secondissue,the professionalrenewal requirementscited by NMC

22

as not satisfiedby Captain Cota only apply to Captain Cota's endorsementon his license as a

23

Master of Towing Vessels,not to his other officer endorsements(Master, 1,600 grosstons,

24

Third Mate Unlimited. and First ClassPilot.) See46 C.F.R. 510.227(dX8)(vi). As noted

25

above,the Coast Guard NMC determinedthat he had otherwisemet all professional

26

requirementsto renew his credentials. In communicationswith personnelat the Coast

21

Guard's Mariner CredentialingProgram Policy Division of Coast Guard Headquarters,

2B

Captain Cota indicated his awarenessof the needto satisff additional professional

coMpLAtNT FoR]uotcw

REVrEw, vIoLATIoN oF DUE PRocESS,DEcLARAToRY RELIEFAND ATTORNEYSFEES


1

qualification requirementsbut requestedthat the Coast Guard resolve the medical issues

2

before he incurred further expensein complying with thoserequirements. The Coast Guard

3

Mariner CredentialingProgram Policy Division Attorney Advisor, David M. Van Nevel, on

4

October 19,2011, agreedthat, assumingthe granting of a medical waiver, it would be

5

reasonableto hold Captain Cota's renewal application file open for 90 days to enableCaptain

b

Cota to then take the necessaryclassesto satisfu his professionalqualification requirements.

1

53.

The Coast Guard Acting Director, PPD, stated"While I agreewith the NMC's

8

determinationregarding Captain Cota's master of towing vessels,I disagreewith the

9

implication that Captain Cota meetsthe professionalqualifications for his other officer

10

endorsements(namely, Master, 1600 grosstons, Third Mate Unlimited, and First Class

11

Pilot.) Contrary to the Coast Guard Acting Director, PPD's statement,the Coast Guard NMC determined,not implied, that Captain Cota met the professionalrequirementsfor his

13

other officer endorsernents. The Coast Guard Acting Director, PPD, specifically cites 46

I4

U.S.C. g 7101(e),as well as CaptainCota's role in the allision of the COSCO BUSAN and

15

his role in the ternporarygrounding of the M/V PIONEER, to assertthat Captain Cota does

16

not meet the professionalqualifications of his other officer endorsements.

t1

54.

However, the statutecited by the Coast Guard Acting Director, PPD, namely

18

which 46 U.S.C. $ 7l0l(e), only appliesto CaptainCota's First ClassPilot endorsement,

79

Captain Cota was required to possessto serve as pilot aboardboth the COSCO BUSAN and

20

the PIONEER underhis Statepilot's license. Section7101(e)of Title 46 doesnot apply to

2I

Captain Cota's other officer endorsernents- Master, 1600 grosstons, Third Mate Unlimited,

22

and Master of Towing Vessels. The Coast Guard Acting Director, PPD's actions exceedthe

23

scopeof the Section7101(e)of Title 46,the CoastGuardNMC's decisionand Captain

24

Cota's appealand thereby violate his due processrights.

25

55.

The Coast Guard Acting Director, PPD, makes further statementsthat Captain

26

Cota is not a safeand suitablepersonas definedby 46 C.F.R. $ 10.107becauseof his

aa

criminal conviction in the COSCO BUSAN allision, his failure to disclose information as to

28

his 2006 and2O07medical exam forms, and his omitting on his Application for Renewal the

COMPLAINT FOR JUDICIAL REVIEW, VIOLATION OF DUE PROCESS, DECLARATORY RELIEF AND ATTORNEYS FEES


I

issuanceof an undatedwarning letter regarding the February 20,2006 grounding of the

2

freighter PIONEER. The Coast Guard Acting Director, PPD, cites the aforesaidas grounds

3

for denying renewal of Captain Cota's MMC'

A

56.

The Coast Guard NMC, in its memorandumof April 29,2011, transmitting

5

Captain Cota's appeal,never made referenceto Captain Cota's 2006 or 2007 medical exam

6

forms or the grounding of the PIONEER. The NMC, in its safety and suitability

1

determination,imposed a one-yearassessmentperiod which was not appealed. Therefore,

8

the Coast Guard Acting Director, PPD's actions exceedthe scopethe NMC's decision and

9

CaptainCota's appeal.

10

57.

The Coast Guard Acting Director, PPD's considerationof uncharged

11

misconductregarding omissionsin Captain Cota's 2006 and2007 physical exam forms and

L2

the PIONEER grounding violates Captain Cota's due processrights. Captain Cota's

13

omissionsin his 2006 and2007 physical exam forms and his omission of the PIONEER

I4

Letter of Waming on his Application for Renewal were purely inadvertent. The PIONEER

15

incident would have been easyto forget, inasmuchas the grounding was for only 15 minutes,

76

the vesselwas undamagedand Captain Cota easily freed her using her own power. Further,

I1

Coast Guard did not take any immediate action regarding the PIONEER grounding; instead,

1B

it issueda letter of waming, which is undated,ten (10) months after the grounding. Note that

19

the omissionsin Captain Cota's 2006 and 2007 physical forms were the subject of a

20

subsequentsupersedingindictment againsthim adding two felony counts under l8 U.S.C. $

2I

1001 which were dropped,and that the Coast Guard did not prefer a Suspension&

22

RevocationMisconduct chargealleging submissionof fraudulent information.

23 24 25

58.

The following excerptsare taken from the Coast Guard Marine Safety

Manual, Volume III, Marine Industry Personnel: Licensedmariners holding secondand later issuancelicenses(note

26

Captain Cota's license on depositwith the Coast Guard was his eighth issue)

2'7

have acquired "property interest" in the license.This "property interest" is

28

protectedby the due processrequirementsof the Fifth and Fourteenth

COMPLAINT FOR ruDICIAL

REVIEW, VIOLATION OF DUE PROCESS, DECLARATORY RELIEF AND ATTORNEYS FEES


1

Amendmentsof the Constitution. . . . A license, COR (Certificate of

2

Registry), or MMD (Merchant Mariner's Document) renewedby way of a

3

fraudulent application may not be declared"null and void". Instead,the

4

mariner must be provided with an administrativehearing conductedunder 46

5

CFR Part 5 where the credentialmay be revoked for misconduct.

6

By email of April 20,2011, the Coast Guard Suspension& RevocationNational Center of

'7

Expertise (S&R NCOE), through CDR Scott Budka, Commanding Officer, notified the Coast

8

Guard NMC that S&R NCOE had contactedthe Coast Guard OCMI Sector San Francisco

9

and there were no pending Suspension& Revocation chargesagainstCaptain Cota.

10

Plaintiffs licensewas the eighth issue. The Coast Guard Acting Director, PPD's

11

presumptionof fraudulent concealmentby Captain Cota demonstratesthe Coast Guard's

L2

disregardof both its own policy set forth in the aforementionedMarine Safety Manual

13

extract and Captain Cota's property interest. It also dernonstratesthe Coast Guard Acting

74

Director, PPD's bias in denying Captain Cota's appealfor renewal of his MMC.

15

59.

On April 14,2}ll, while CaptainCota's appealwas pending,he appliedfor a

I6

documentof continuity with the CoastGuard to protect his rights in the event that his appeal

t1

was denied. On May 5,2011, the CoastGuard issueda MerchantMariner Documentof

1B

Continuity to Captain Cota.

19

60.

Per 46 CFR $ 10.227(e),"A holder of a document of continuity may obtain a

20

properly endorsed,valid MMC at anytime by satisffing the requirementsfor renewal as

2I

provided in paragraph(d) (of a6 CFR $ 10.227)." Captain Cota, all along, has been willing

22

to and is able to meet theserequirements. Through considerableeffort and expenseas set

23

forth above, Captain Cota has demonstratedhis medical fitness to the Coast Guard. In

24

response,the CoastGuard Acting Director, PPD creatednew grounds for denial which went

25

far beyond the initial denial reasonsset forth by the Coast Guard NMC.

26

61.

The Coast Guard Acting Director, PPD's subsequentdenial groundswere

21

not, nine months before, explainedto CongresswomanWoolsey in responseto her inquiries.

28

It appearsthat the Coast Guard never believed that Captain Cota would satisff its medical 20 FORJUDICIAL REVIEW,VIOLATION OF DUE PROCESS,DECLARATORYRELIEFAND COVTPT-AWT ATTORNEYSFEES


1

demonstrated requirementsand, once he did, the Coast Guard hastily, and rather inartfully, as

2

his by incorrect citation of statutory authority, cameup with other reasonsto deny renewal of

3

MMC.

4

62.

The apparentCoast Guard strategyschemedbefore December21,2007 was to

5

securecustody of Captain Cota's license and merchantmariner's documentthrough a sham

6

Voluntary Deposit Agreement,not retum his license and merchantmariner's documentand

'7

deny his application for renewal. Captain Cota would seekmonetary damageswere it not for

8

attomeyswho !f 38 of the ConsentDecree,which no doubt was structuredby government

9

recognizedthe govemment's bad faith in its dealingswith Captain Cota. FIRST CLAIM FOR RELIEF

10

(JudicialReview Under 5 U.S.C. $ 704)

11 I2 13 I4

63.

Plaintiff re-allegesas though fully set forth the allegationsof ParagraphsI

through 62 as though fully set forth herein. 64.

Plaintiff, as a licensedmerchantmarine officer, has a property right in his

15

licensethat is protectedby the due processrequirementsof the Fifth and Fourteenth

L6

Amendmentsof the United StatesConstitution.

I1 18

65.

The Commandant'sletter datedFebruary 13,2012 was final agencyaction

within the meaningof 5 U.S.C. $ 704. The Commandant'sfinal agency action is subject to judicial review for the

I9

66.

20

following reasons: (a)

2I 22

It is arbitrary, capricious and an abuseof discretion, and otherwisenot

in accordancewith law:

23

(b)

It is contrary to Constitutional right, power, privilege or immunity;

24

(c)

It exceedsstatutoryjurisdiction, authority, or limitations, or is short of

25

statutoryright;

26

(d)

It is without observanceof procedurerequired by law;

2'7

(e)

It is unsupportedby substantialevidence;

28

DECLARATORYRELIEFAND coMPLAINIT FoRIuoTqeT- REVIEw, VIoLATIoN OF DUE PROCESS, FEES ATTORNEYS


1 2

(0

It was unwarrantedby the facts to the extent that the facts are subject

to a trial de novo by this Honorable Court.

3

SECOND CLAIM FOR RELIEF

A

(Violation of Due Processunder the United StatesConstitution Amendment V)

5 6 1

67.

Plaintiff re-allegesas though fully set forth the allegationsof Paragraphs1

through 66 as though fully set forth herein. 68.

DefendantUnited StatesCoast Guard, through its Commandant,OCMI and

I

NMC, violated plaintiff s due processrights arising under Fifth and FourteenthAmendments

9

of the United StatesConstitution as follows:

10 11

a.

By ernploying a processthat is arbitrary, capricious,and an abuseof

discretion;

t2

b.

by ignoring or failing to observeproceduresrecognizedor required by law;

13

c.

by issuing or rendering decisionsunsupportedby substantialevidence,or

I4

following guidelines and proceduresspecifically prohibited by statutesof the United States

15

and the law arising under thern;

16

d.

by issuing decisionsunwarrantedby the facts;

I1

e.

and by the Commandant'sissuing a decision constituting final agencyaction

18

denying plaintiff s application for renewal that exceedsthe scopeof the NMC's

I9

determinationwithout grving plaintiff prior notice and an opportunity to respond. THIRD CLAIM FOR RELIEF

20

(DeclaratoryRelief Pursuantto 28 U.S.C. $ 2201)

2L 22 23 24 25

69.

Plaintiff re-allegesas though fully set forth the allegationsof ParagraphsI

through 68 as though fully set forth herein. 70.

This Complaintraisesan actualcontroversywithin the meaningof 28 U.S.C.

5 220I and this Honorable Court is therefore empoweredto declarethe rights of the parties.

26 21 28

COMPLAINT FOR JUDICIAL REVIEW, VIOLATION OF DUE PROCESS, DECLARATORY RELIEF AND

ATTORNEYSFEES


FOURTII CLAIM FOR RELIEF

1

(Attorney's FeesPursuantto 23 U.S.C. $ 2412(d)0))

2 3 4 5

71.

plaintiff re-allegesas though fully set forth the allegationsof ParagraphsI

through 70 as though fully set fonh herein. 72.

For all the reasonsset forth above,the position of the defendantsUnited States

6

of America and United StatesCoast Guard, in which they denied renewal of Plaintiff s

1

MMC, was not substantiallyjustified. Moreover, specialcircumstancesdo not exist that

B

make an award of attorney's fees in this caseunjust. Plaintiff accordingly seeksthe recovery

9

of his attomeys fees, costs and expensesin this action pursuantto the Equal Accessto Justice

10

Act,28U.S.C.$ 2412(dXl).

11

WHEREFORE the Plaintiff, Captain John J. Cota prays that this Honorable Court:

I2

l.

REVERSE or VACATE the Decision of the United StatesCoast Guard

13

CommandantdatedFebruary 13,2012 and order the defendantsCommandantand the

I4

United StatesCoast Guard to renew the Merchant Marine Credential of Captain John J. Cota

15

to permit him to continue sailing under his United StatesCoast Guard-issuedMaster'slicense

I6

with all his endorsernents;

T1

Z.

DECLARE that the Commandant'sand the United StatesCoast Guard'sfinal

18

agencyaction datedFebruary 13,2012 employed a processthat is arbitrary, capricious and

79

an abuseofdiscretion; becausethey ignored or failed to follow proceduresrecognizedby

20

law; becausethey rendereda decision unsupportedby substantialevidence;and becausethey

2I

violated laws of the United States,as well as other intemal shortcomingsand flaws in the

22

administrativehandling of the application for return and renewal of Plaintiff s MMC which

23

are all violations of Captain Cota's constitutionally-guaranteedright of due processarising

24

under the Fifth and FourteenthAmendmentsof the United StatesConstitution and are all

25

thereforeNULL, VOID and UNENFORCEABLE;

26

3.

Conduct a full judicial review, including a trial de novo, of Capt. Cota's

2'7

requestfor the retum and renewal of his MMC to permit him to continue sailing under his

28

Coast Guard License; DECLARATORYRELIEFAND , VIOLATION OF DUE PROCESS, ATTORNEYSFEES


02,/08r'13 0I:.52PU

I

4,

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p,0r

5r09850956

,I ohn F H e adorrr c

ORDER all or rlny $uchotherrelief or differentrelief, a$may hejust and

propr underthesccirtum$tanco.s.

JURY DAMAND

3

a trial hyjtry on all claimssotfiable. domnnds Theplaintilfrs$pactfully

6

SINI.JNTJ BRI,INI LLP

8,2013 Dsted:Februnry

I

t

10

By: II

I-DO J 1?

Attqiuewfqll[altgi$

CAPTAINJOHNJ. COTA t5

l4 t.15 16 T7 l0 19 20 ?t, 22 A.'

24 25 26 a"t

z8

tttw,

TION OF DUE ATI1}RNHY$ TST,,9

V RNLIHTANCI


John Cota's lawsuit to regain Coast Guard license