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Cota v USA

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					      JOHN MEADOWS. 23050
           F.            SBN
      LEOPOLDO CHANCO, 136083
                J.         SBN                                                            j, tl8
      SINLTNU BRTINI LLP
      333PineStreet,   400
                   Suite
 3     SanFrancisco,CA 94104-3311                                                             . : l i rT

 A
      Telephone: 415.362.97 00                                                            ,i . F r.


                          07
      Facsimile: 415.362.97
      j meadows@sinunubrui. com
 5    I chanco            com
              @sinunubruni.
 o
      Attorneys for Plaintiff
 '7   CAPTAIN JOHN J. COTA

 B
                                 UNITED STATESDISTRICTCOURT
 9
                       FORTHE NORTHERNDISTRICTOF CALIFORNIA                            tqw
10
                                   SAN FRANCISCO DIVISION
11

I2
      CAPTAIN JOHN J. COTA.
                                                          t3
                                                    CaseNo.:
                                                                          c5?S
13
                    Plaintiff.                     COMPLAINT FOR JUDICIAL REVIEW.
74
                                                   VIOLATTON OF DUE PROCESS,
            V.
                                                   DECLARATORY RELIEF AI\D
15
                                                   ATTORNEY'S FEES
      TINITED STATES OF AMERICA,
I6    DEPARTMENT OF HOMELAND
      SECURITY. UNITED STATES COAST
L1
      GUARD, AND UNITED STATES COAST
18    GUARD COMMANDANT.

19                  Defendants.
20

2I
            COMES NOW CAPTAIN JOHN J. COTA, Plaintiff ("Captain Cota" or "Plaintiff')
22
      in the above-captionedaction and complains againstdefendantsUNITED STATES OF
23
      AMERICA, DEPARTMENT OF HOMELAND SECURITY, UNITED STATES COAST
24
      GUARD and the UNITED STATES COAST GUARD COMMANDANT as more fullv set
25
      fonh below:
26
                                          SUMMARY
27
            This complaint arisesfrom the final agencyaction decision datedFebruary 13,2Ol2
28
      by the United StatesCoast Guard Commandant,sustainingthe decision of February 28,201I

                                                              DECLARATORYRELIEFAND
          COMPLAINTFORruDICIAL REVIEW,VIOLATION OF DUE PROCESS,
                                        ATTORNEYSFEES
                                                                                     denied
1     by the Coast Guard's National Maritime Center ("Coast Guard NMC") which
2     plaintiff s application for the return and renewal of his Coast Guard-issuedlicense and
                                                                                    Coast
3     merchantmariner's document,both of which were relinquishedby Plaintiff to the
                                                                                  not
4     Guard on Decernb 21,2007 pursuantto a Voluntary Deposit Agreement and later
                      er
                                                                                     of that
5     retumed to plaintiff upon dernandeven though Plaintiff had fully met the terms
6     agreement, wit: passinga physical examination and being declaredfit for duty. This
               to
7     complaint seeksfirst, judicial review overturning the Coast Guard Commandant'sfinal
 8    agencyaction under the Administrative ProcedureAct. In separateand independentcounts,

 9    this complaint also asksthe Court to determinethat the Coast Guard's internal administrative
10    review which producedthe final agencyaction is unconstitutional in that the process
11    employed deprived Plaintiff of his due processrights.
I2                                              PARTIES

L3            1.     Plaintiff Captain John J. Cota is a citizen of the United States,a residentof

I4    petaluma, SonomaCounty, California who, at all times material, was the holder of a United

r3     StatesMerchant Marine Officer's LicenseNumber 1l00254,8th Issue and datedJanuary6,
ao     2005,issuedin San Francisco,California, by the United StatesCoast Guard as a Master of

L'7    Steamor Motor Vesselsof not more than 1600 grossregisteredtons (domestictonnage),

18     3000 grosstons (International TonnageConvention ["ITC"]) upon Oceans;also, Third Mate

I9     of Steamor Motor Vesselsof any grosstons upon Oceans;also Master of Towing Vessels

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

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

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

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

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

25     073958 with endorsernents unlicensedratings in the Deck Department,including Able
                               for

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

21     merchantmariner's documentshave sincebeen consolidatedinto a single Merchant

2B     Mariner' s Credential (MMC).


                                                                     DECLARATORYRELIEFAND
                                                  TION OF DUE PROCESS,
                                               ATTORNEYSFEES
'll             Z.      The defendantUnites StatesCoast Guard ("Coast Guard") is
                                                                                 an agencyof      the

,l
-l     defendantsovereignthe United Statesof America within the
                                                                  meaning of the Administrative
_l                                                                    Guard commandant is the
JI
       ProcedureAct, 5 U.S.C. $ 702 et. seq. The United Statescoast
     I
 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
      I
 6 l defendantsovereignunited Statesof America. The Coast Guard resideswithin this district
,l   I
       at various locations, including, but not limited to Commander,Coast
                                                                           Guard Sector San

 8 l Francisco,PreventionDepartment,Building 14, Coast Guard Island, Alameda' CA 94501
 ,lI   which enteredinto the aforesaidVoluntary Deposit Agreement and took
                                                                              custody of Captain

1 O Cota,sCoastGuard-issued         licenseand merchantmariner's documenton Decembet21,2007,

1 1 " and commander, u.s. coast Guard, sector San Francisco,I Yerba Buena
                                                                               Island, San
                                                                                        license
1,2 Francisco,     cA 94130,which refusedto retum captain cota's coast Guard-issued

1 3 and merchantmariner's documentbefore each expired, after which Captain
                                                                                 Cota applied for
                                                                                   (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

I6        subjectof this comPlaint.

r'7                                               JURISDICTION

18               3.      plaintifPs claims ariseunder the Constitution and laws of the United States
                                                                                          has
1,9       and this is an action seekinga declarationof rights and accordingly, this Court

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

2I               4.      Plaintiff s action is also an appealunder 5 u.s.c. $ 702 of a final agency
                                                                            form of a letter dated
22        action decisionby the Commandant,United StatesCoast Guard, in the
                                                                            of the coast Guard
23        February 13,2olzwhich denied captain cota's appealof the decision
                                                                                 and correct copy
 24       NMC denying captain cota's application for renewal of his MMC. A true

 25       of that letter is attachedhereto as Exhibit "l'"

 26               5.      This action also seeksan independentdeterminationthat the Coast Guard's
                                                                                   due process
 2'7      refusal to return and renew Plaintiff s MMC constitutesviolations of the

 2B       provisions of the United StatesConstitution, Article 5'


                                                                          DECLARATORYRELIEFAND
                                                                      CESS,
                                                     ATTORNEYSFEES
1            6.      The Commandant'sdecision of February 13,2012 statesthat it constitutes
2     final agencyaction.
3            7.      Personaljurisdiction exists over Plaintiff and the Defendantsby virtue of their
4     presencewithin this district.
 5                                              VENUE
 6           8.                                                                   Plaintiff
                                                                            because
                     Venue is properin this district under 28 U.S.C. $1a02(a)
 '7
      resideswithin this district in Petaluma,CA.
 B                                INTRADISTRICT ASSIGNMENT
 9           9.      This lawsuit should be assignedto the San FranciscoDivision of this Court
l0    becausea substantialpart of the eventsor omissionsgiving rise to the lawsuit occurredin
11    San Franciscoand Oakland.
t2                  PROCEEDINGS BELOW AND FACTUAL BACKGROUND
13            10.    CaptainCota first went to seain 1966as a messman.He enteredCalifomia
l4    Maritime Academy in 1967,Ieft to continue working at sea,retumed in 1969 and graduated
15    with a third mate's licensein 1972. From L974to 1977,he sailedas a masteron tugs
I6    worldwide. He returned to San Franciscoin 1977to begin working on his pilot trips in order
I'7   to qualiff as a San FranciscoBar Pilot.

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

I9    a pilot licensedwith the Stateof Califomia by the Board of Pilot Commissionersfor the Bays

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

2I    that time, he began a long and distinguishedcareeras a maritime pilot with the San Francisco

22    Bar Pilots Association.

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

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

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

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

2'7   under the command of U.S. Coast Guard Sector San Francisco("San FranciscoCoast Guard

28    REC") is locatedat OaklandFederalBuilding, North Tower, 1301Clay Street,Suite 180N,


            COVPTATNT                                            DECLARATORYRELIEFAND
                     FOR JUDICIAL REVIEW,VIOLATION OF DUE PROCESS,
                                           ATTORNEYSFEES
I
      Oakland, CA94612-5200. Even though not required, Captain Cota voluntarily filed his 2006
2     physical exam report with the San FranciscoCoast Guard REC at the sametime (in April
3     2007)that he filed his 2007 report. Both of thesephysical examinationreports, and Captain
4     Cota's previous physical examinationreports, were administeredby one of four physicians
5     approvedby the California StateBoard of Pilot Commissioners,licensedby the Stateof
6     California, and acceptedby the Coast Guard as qualified to perform licenserenewal
1     physicals. At the San FranciscoCoast Guard REC, Captain Cota's2006 and 2007 physical
B                                                           Hogge, managerof the Pilotage
      examinationreports were reviewed by Chief Quartermaster
 9    Program, and then were placed in Captain Cota's Coast Guard licensing file. The Coast
LO    Guard did not notiff Captain Cota of any questionsor concernsregarding either of these
11    annualphysical examinations.
L2           I 3.    On November 7, 2007, an allision (a collision with a stationaryobj ect by a
13    moving vessel)occurred in densefog betweenthe Hong Kong flag Container Ship COSCO
14    BUSAN and the fendersaroundthe baseof the "D" tower of the San FranciscoOakland Bay
15    Bridge. Plaintiff Captain Cota was then serving as the pilot aboardCOSCO BUSAN. As a
1,6   result of the allision, apart of the hull of the ship on the port side was ripped open and she
I1    spilled approximately 53,000 gallons of fuel oil into the Bay.

1B            14.    On Novernber 30. 2007 the United Statesfiled a civil lawsuit in federal court

I9    againstRegal StoneLimited (owner of COSCO BUSAN), Fleet ManagementLtd. (Operator

20    of COSCO BUSAN) and Plaintiff seekingdamagesfor resourceinjuries causedby the spill

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

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

23                    which containsthe following provision:
      No. C 07-6045(SC)
             ,'ll3S.... nothing in this ConsentDecree shall, of itself, prohibit or restrict John
24

25            J. Cota from bringing an administrativeproceedingagainstany governmental
26
              entity or agency,including the United StatesCoast Guard, for the sole and
2'7
              exclusive purposeof seekingnon-monetaryrelief for the reinstatement,
2B



                                                                DECLARATORYRELIEFAND
           COMPLAINTFOR JUDICIAL REVIEW,VIOLATION OF DUE PROCESS,
                                          ATTORNEYSFEES
1           renewal or issuanceof any professionalmariner's license, it being expressly
2
             understoodand agreedthat such an administrativeproceeding,if any is filed,
3
             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.     On March 17,2008,Plaintiff was suedby the United States Action No. 08-
                                                                            in
 9
      0160, U. S. District Court for the Northern District of California, for misdemeanorviolations
10
      of the CleanWaterAct, 33 U.S.C.$$ 1319(c)(1)(a) l32l(b)(3), andthe MigratoryBird
                                                    and
11
      protectionAct, 16 U.S.C. $$ 703, 707(a)arising from the COSCO BUSAN allision. This
1,2
      casewas assignedto the Hon. District Judge SusanIllston.
13
             16.                superseding
                     A subsequent          indictment addedtwo felony countsunder l8
I4
      U.S.C. g 1001 having to do with allegedlying when Plaintiff claims he forgot to list certain
15
      medicationson his 2006 and 2007 annualphysical exam forms. Thesefelony chargeswere
16
      later dropped as part of a plea bargain enteredinto on March 6,2009, wherein Captain Cota
r'7
      agreedto plead guilty to the two criminal misdemeanorchargesfor oil pollution. On July
18
      17,2O0g,hewas sentenced JudgeIllston to ten (10) monthsin a Federalprison,which he
                            by
19
      served. The Plea Agreement approvedby the Court in her entry of Judgmentstated"I further
20
      understandthat I may seekthe renewal of my Coast Guard licensesin January2010 and to
27
      obtain the refurn of the licensenow on deposit with the Coast Guard pursuantto a voluntary
22
      deposit agreemententeredinto betweenthe Coast Guard and me on December21,2007.'
23
      The Plea Agreernentthen continuesto statethat on return and renewal of the license, Capt.
24
      Cota agreesnot to use that part of the license allowing him to pilot vesselsor to act as Master
25
      of vesselsof not more than 1,600grosstons during the one year period of supervisedrelease
26
      but that no other license, including that as a Third Mate, is affectedby the Plea Agreernent,
2'7
      "unlessotherwise prohibited by the Coast Guard."
2B
              17.    In the Plea Agreement,Captain Cota has admitted that he was at fault in

                                                                 DECLARATORYRELIEFAND
                      FORXJDICIAL REVIEW,VIOLATION OF DUE PROCESS,
            COMPLATI\IT
                                           ATTORNEYS FEES
      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 off-
      courseand 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
11    have preventedfar worse damagesto the ship, the San FranciscoOakland Bay Bridge and a
t2    potentially worse oil spill.
13            18.     On Decernb 6,2007, the StateBoard of Pilot Commissioners the Bays of
                               er                                            for

T4    San Francisco,San Pablo and Suisun Incident Review Committee filed an Accusation
l5    seekingsuspension revocation of Plainti{Ps statepilotage license. Plaintiff filed a timely
                       or

16    Notice of Defense. The StateOfficb of Administrative Hearings assignedan Administrative

r'7   Law Judge. The federal criminal trial date was extendedafter the two felony chargeswere

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

I9    Commissionershearing would not grant any further extensions. Plaintiff was unable to

20    defendhis Statelicensebefore his scheduledcriminal trial as doing so would have

2I               Plaintiff s testi$ing on his own behalf at the Statehearing, which he could not
      necessitated

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

23     as a SanFranciscoStatebar Pilot.

24            19.     In Decernber,2007, CoastGuardoffered Plaintiff the choiceof a
                                       the

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

26     alternatively, entering into a Voluntary Deposit Agteement and depositinghis credentials

2'7    with the Coast Guard. Plaintiff believed that the deposit was the best option in that, if he

2B



                                                                  DECLARATORYRELIEFAND
            COVPIEINT FOR JUDICIAL REVIEW,VIOLATION OF DUE PROCESS,
                                            ATTORNEYSFEES
1
      was found fit for duty by the examining doctor, the Coast Guard, upon verification of the
2     results,would return his license.
3            20.     Plaintiff therefore chosethe deposit agreementoption and enteredinto a
4                      with Coast Guard whereby he would deposithis credentialswith them
      written agreernent
 5    until such time as he would submit to Coast Guard a physical examinationreport from a
 6
      "third-party independentlicensedphysician" stating that he was "fully fit, in all respects,to
 1    perform my duties aboardship." On December 21,2007, the Voluntary Deposit Agreement
 B                                                                               document
      was signedby both parties and Captain Cota depositedhis license and seaman's
 9    with legal officers of the Coast Guard. Seea true copy of the deposit agreementattached
10    hereto marked Exhibit "2."
11            21.    When the National TransportationSafety Board (NTSB) conductedits public
t2    hearingsin April 2008 Plaintiff declined to testify. It was not a refusal to cooperate-hehad
13    alreadybeen questionedtwice by the Coast Guard and once by NTSB without a grant of
I4    immunity. Plaintiffls election to not testiffbefore NTSB funher was due to the aforesaid
15    pending criminal action.

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

t'7   examinedPlaintiff and found him fully fit for duty and competentto continue sailing. Dr.

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

19                         NVIC No. 4-08 issuedon September 2008. Dr. Smootmadehis
      02-98and its successor,                             15,

20    examinationby applying the standards forth in NVIC No. 4-08. In accordance
                                          set                                   with his

2I    findings, Dr. Smoot preparedand signedthe Merchant Mariner Physical Examination Report

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

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

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

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

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

21    Coast Guard NMC assumedmedical evaluation approvalsand license-issuingdecisionsfrom

28    REC San Francisco. Along with Dr. Smoot's report, Plaintiff submitted a sleepstudy


                                                                 DECLARATORYRELIEFAND
            COMPLAINT FORruDICIAL REVIEW,VIOLATION OF DUE PROCESS,
                                           ATTORNEYSFEES
1      performed by Dr. David Claman, Chairman, Director of the SleepClinic at the University of
2      Califomia. San Francisco,which included a study of the effects of Provigil on Plaintiff.
 3     plaintiff also submitted a report from his ophthalmologist. A copy of Plaintiff s letter request
 4     of February 3,2009 was also sent to Commander,Coast Guard Sector San Francisco,
 5     prevention Department,the office which signed the Voluntary Deposit Agteement and took
 6
       custody of Captain Cota's license and merchantmariner's document,thereby fully apprising
 '7
       and informing that office of Captain Cota's efforts seekingretum of his depositedlicense and
 8
       merchantmariner's document. Receipt of Plaintiff s letter requestof February 3,2009
 9     seekingmedical review and return of Plaintiff s licensepursuantto the Voluntary Deposit
10     Agreementwas acknowledgmentby T. Bassett,Chief, Mariner EvaluationsDivision, Coast
11
       Guard NMC, by email on February 11,2009. Ms. Bassetdid not advise that the letter
I2     requestfor retum of Captain Cota's depositedlicense and merchantmariner's should have
13
       been sent to Coast Guard Sector San Francisco,and wrote "Your letter will be hand delivered
74
       directly to the Medical Evaluation Branch [of Coast Guard NMC] for review. I will update
a:
       you in approximately one week regarding the statusof this review."
I6             24.    Ms. Bassettprovided no update as to the status,and did not respondto follow-
1,'7   up inquiries. Next, over six months later, the Coast Guard refusedto return Captain Cota's
1B     licensepursuantto the Voluntary Deposit Agreementbecausethe Coast Guard ostensibly
79     determinedthat Captain Cota had not satisfiedthe terms and conditions of the voluntary
20     deposit. The Coast Guard notified Captain Cota of its refusal by a letter from Captain P.M.
2L     Gugg, Officer in Charge of Marine Inspection (Coast Guard OCMI), Sector San Francisco
22     datedJuly 15, 2009,but this letter was not receivedby PlaintifPs counseluntil August 26,
23      2009. In the letter, the Coast Guard OCMI noted that he was acting in the matter as the
24     Coast Guard OCMI becauseSector San Franciscohad executedthe Voluntary Deposit
25     Agreanent for the Coast Guard.
26             25.     The Coast Guard OCMI claims thatCaptain Cota did not comply with the
21     terms of the Voluntary Deposit AgreernentbecauseDr. Smoot was not a "third party,
28



             COMPLAINT FOR JUDICIAL REVIEW, VIOLATION OF DUE PROCESS, DECLARATORY RELIEF AND
                                              ATTORNEYS FEES
1     independentphysician" within the meaning of the Voluntary Deposit Agreernentsincehe had
2     beenCaptainCota's primary carephysiciansince 1973.
3            26.     The Coast Guard OCMI doesnot explain how the mere fact that Dr. Smoot
4     had been Captain Cota's long time primary carephysician presumptively preventedhim from
5     making a neutral and detachedassessment Captain Cota's fitness, and contradictsthe fact
                                            of
 t)
      that, nationwide, many thousandsof mariners have physicalsperformed by their family
 '7
      physicianswhich have been acceptedby the Coast Guard. The Coast Guard never contacted
 I                      whether he had any bias, let alone discuss,per the Voluntary Deposit
      Dr. Smoot to assess
 9    Agreernent,Captain Cota's condition and ability to perform duties. At all relevant times
t0                                                                private generalpractitioner
      herein, Dr. Smoot has always been an independent,experienced,
11    who has many patients in addition to Captain Cota. The Coast Guard'sclaim of bias by Dr.
I2    Smoot lacks any evidentiary support and demonstrates own bias. The Coast Guard OCMI
                                                         its

13    then set fonh further grounds for finding Captain Cota medically unqualified for duty. The
I4    CoastGuard OCMI recommendedthat Captain Cota be examinedby anotherindependent
15    physician.

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

!1    that anew physical exam conductedby a "Third-Patty,Independent Physician" could be
18    submitted and, if done, that it should addressall conditions listed in the letter.

I9            28.    After receipt of the Coast Guard OCMI's letter, Captain Cota immediately

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

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

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

23            29.    On January6,2010, CaptainCota's licenseand merchantmariner's document

24    depositedwith the Coast Guard expired due to the passage time. Under 46 C.F.R. $
                                                              of

25     10.277(f),CaptainCota had a one year's graceperiod to seekrenewalof his MMC.

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

27    20l0,by letter to the Coast Guard NMC, with a copy sent to the Coast Guard San Francisco

28



                                                                DECLARATORYRELIEFAND
           COMPLAINT FORruDICIAL REVIEW,VIOLATION OF DUE PROCESS,
                                          ATTORNEYSFEES
1
      REC. This letter also contestedthe claims of the Coast Guard OCMI containedin his letter
2                                 eachmedical concernraisedby the Coast Guard OCMI.
      of July 15,2009 and addressed
3            31.                                                  receiptof Captain
                    On July, 7,2010, the CoastGuardNMC acknowledged
4     Cota's application for renewal and requestedadditional medical documentationon eight
 5    subjects,some of which duplicated issuesraisedby the Coast Guard OCMI.
 6           32.    Captain Cota submitted all documentationresponsiveto the Coast Guard
 1    NMC's requeston Decemb 3,2010. At all relevanttimes, CaptainCota has cooperated
                            er
 B    with the Coast Guard NMC's requestsfor information for both the return and renewal of his
 9                                                    aloneexceeded
                         CaptainCota's medical expenses
      MMC. In the process,                                        $20,000.00.

10           33.    In a letter datedJanuary24,2011, the CoastGuardNMC informed Captain
11    Cota that he was not medically qualified for renewal of his MMC because had Obstructive
                                                                             he

L2    SleepApnea and used the stimulant Provigil. The Coast Guard NMC further statedthat it
13    "does not currently consider Obstructive SleepApnea requiring the use of the stimulant
L4    Provigil, acceptablefor safety-sensitivepositions."

15           34.    In its letter of January24,2011, the NMC statedthat CaptainCota could
ao    requestreconsiderationof its decision or apply for a documentof continuity (a document
7'7   which, upon request,can be issuedto an applicant for renewal who presently is unwilling or
1B    unable to meet requirements,which maintains the individual's eligibility for renewal by
79    enabling the individual to obtain a properly endorsedand valid MMC at any time by
20    satisffing requirementsfor renewal). If reconsiderationwas sought,the NMC requestedthat
2I    Captain Cota work with his physiciansto present"objective evidencethat the risk to
22    maritime and public safety has been mitigated." The NMC also requestedupdated
23    evaluationsfrom Captain Cota's sleep specialist. The NMC further suggestedhaving

24    CaptainCota's sleepspecialistcontactthe NMC's Dr. L. G. Gillis, Chief of its Medical
25    EvaluationsDivision and FederalMaritime Surgeon,with any questionsabout follow-up

26    testing or guidelines.The Coast Guard NMC also requestedthat any requestfor
21    reconsiderationinclude updateson Captain Cota'srecent right humerus fracture and his

2B                      records from July 2010 to date.
      pharmacy-dispensing


           COMPLAINT FOR JUDICIAL REVIEW, VIOLATION OF DUE PROCESS, DECLARATORY RELIEF AND
                                             ATTORNEYSFEES
1            35.      Captain Cota timely sought reconsiderationof the Coast Guard NMC's
2     decision declining renewal of his MMC on February ll,20ll.     In support of his requestfor
3     reconsideration,Captain Cota submitted (l) a report and CV from his sleep specialist,Dr.
4     David Claman; (2) a report from his orthopedic surgeonabout his right humerus fracture, (3)
 5    a report from Captain Cota's family medicine physician; (4) a report from Dr. Valery
 6    Tarasenko,Advanced Pain ManagernentInstitute, and (5) Captain Cota's pharmacy records
 1    from July 8, 2010 to January 24,2011. Captain Cota authorizedthe Coast Guard to speakto
 8    Drs. Claman and Barlas about Captain Cota's use of Provigil and his right humerus fracture,
 9    respectively.
10           36.      Dr. Claman,in his letter to Dr. Gillis datedFebruary8,2011, noted that
11    Captain Cota's treating physician began Provigil treatmentin 2006, and that Captain Cota's
I2    combineduse of CPAP treatmentand Provigil are effective in treating his sleepdisorder. Dr.
13    Claman also advisedthat Provigil is FDA-approved and approvedfor use in the U.S. Air
I4    Force, that Provigil does not diminish cognitive performance,and that it is not mind or mood
15    altering.
1,6           37.     Dr. Claman further noted that his researchindicated that the Coast Guard's

I1    position on Provigil may be basedupon unpublishedguidelines which do not reflect optimal

1B    FDA-approved medical therapy. He requesteda call from Dr. Gillis to discussconcernsand

I9                                   them in the event Dr. Gillis was not persuaded
      an opportunity to address/answer                                             to

20             her
      reconsider deciston.

2I            38.     Nobody from the Coast Guard NMC ever called Dr. Claman to discuss

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

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

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

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

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

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

2B    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

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



3    not healed sufficiently and his use of narcotic pain killers would prevent him from
4    performing the tasks outlined in Enclosure(2) of the NVIC 04-08, Physical Ability
5    Guidelines. The Coast Guard NMC advisedCaptain Cota that he could requesta formal
 6   appealwithin 30 days or apply for a documentof continuity. A copy of this letter is attached
 1   hereto as Exhibit "3."
 I           40.      On March ll,2}ll,                      calling Dr. Gillis, leaving a
                                          Dr. Clamanatternpted
 9   voicemail messagerequestinga return call. On March 14,2011, Captain Cota wrote the
10   Coast Guard NMC requestingclarification and documentation,such as publications or
11   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. Clamanattempted call Dr. Gillis againon March 23,2011. Unable to
                                         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    administrative appeal.
2           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.      The appealwas basedupon the Coast Guard'sactions in breachingthe terms of
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.      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 requirernents 46 C.F.R. $ 10.211(g)due
                                                                of

15   to his criminal conviction for violation of environmentallaws. Consequently,the Coast
L6                                         period (a time period during which an
     Guard NMC imposed a one year assessment
T1                                  from August 6,2010 to August 6,2011 pursuantto Title
     applicationis deemeddisapproved)

18   46 C.F.R. Table 10.21l(g). The CoastGuardneverinformed CaptainCota aboutthis one

I9                                                      providesthat when an application
                  period, eventhough46 C.F.R. $ 10.211(e)
     year assessment

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

27              and advisedof the appealprocedures 46 C.F.R. $ 1.03. CaptainCota was
     disapproval,                                in

22                                                     period until receipt of the aforesaid
     unawareof the imposition of the one year assessment

23    Apil29,20l    I Memorandum. The CoastGuard NMC also conducteda Professional

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

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                   Ms. PamelaMoore, suggestingin lieu of the appealthat the Commandant
      correspondence,
5     remand the appealto NMC with instructionsthat Captain Cota be approvedfor the renewal
 6                                                        period if he meets Coast Guard NMC's
      of his license after the completion of the assessment
 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                                                                   period which was to end
      additional professionalrequirements,did not appealthe assessment
l0    on August 6,2011. The letter to Ms. Moore, datedMay 20,2011, was never answered.
11            45.    A secondletter to Ms. Moore, datedJune 15, 201I, also was never answered.
t2    Captain Cota, frustratedover NMC's non-response his offers to resolve the medical
                                                    to

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                                                               The Honorable Lynn Woolsey,
                                                   representative,
      2011 initiated an inquiry to his Congressional
1,6   the U.S. Representative California's 6ft Congressionaldistrict. Representative
                             for                                                    Woolsey

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 passes MWT without sleepor naps, and without use of
                                            an

26            Provigil, then he would qualify for a MMC."

21            46.    This reply to RepresentativeWoolsey's inquiry from the Commandantof the

2B    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
      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
a



3     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
                                                      crimesunder 46 C.F.R. $ 10.211(g).
            to CaptainCota's convictionof environmental

            The CoastGuard Acting Director, PPD, statedthat he would not addressthis issue
 9                                            period.
            due to expiration of the assessment
10          50.      In addressing first issue,the Coast Guard Acting Director, PPD, noted that
                                  the
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 endorsement his license as a
                                                                             on

23
                                                                  (Master, 1,600 grosstons,
     Master of Towing Vessels,not to his other officer endorsements

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 awareness the needto satisff additional professional
                                         of


           coMpLAtNT FoR]uotcw      REVrEw, vIoLATIoN oF DUE PRocESS,DEcLARAToRY RELIEFAND
                                              ATTORNEYS  FEES
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    reasonable hold Captain Cota's renewal application file open for 90 days to enableCaptain
               to
 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              (namely, Master, 1600 grosstons, Third Mate Unlimited, and First Class
     endorsements
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 possess serve as pilot aboardboth the COSCO BUSAN and
                                        to

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. $ 10.107because his
                                                                              of

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                                             period which was not appealed. Therefore,
      determination,imposed a one-yearassessment
 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             superseding
      subsequent          indictment 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           58.    The following excerptsare taken from the Coast Guard Marine Safety

24    Manual, Volume III, Marine Industry Personnel:

25                  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 demonstrates Coast Guard's
                                                                    the

L2   disregardof both its own policy set forth in the aforementionedMarine Safety Manual
13   extract and Captain Cota's property interest. It also dernonstrates Coast Guard Acting
                                                                       the

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 demonstrated medical fitness to the Coast Guard. In
                                               his

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

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
                                                             DECLARATORYRELIEFAND
          COVTPT-AWT JUDICIAL REVIEW,VIOLATION OF DUE PROCESS,
                   FOR
                                       ATTORNEYSFEES
                                                                                       demonstrated
1
      requirementsand, once he did, the Coast Guard hastily, and rather inartfully, as
                                                                                                his
2     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
                                                                            attomeyswho
 8
      !f 38 of the ConsentDecree,which no doubt was structuredby government
 9    recognizedthe govemment's bad faith in its dealingswith Captain Cota.
10                                   FIRST CLAIM FOR RELIEF

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

I2            63.    Plaintiff re-allegesas though fully set forth the allegationsof ParagraphsI
13    through 62 as though fully set forth herein.
I4            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            65.    The Commandant'sletter datedFebruary 13,2012 was final agencyaction

18    within the meaningof 5 U.S.C. $ 704.

I9            66.    The Commandant'sfinal agency action is subject to judicial review for the

20    following reasons:

2I                      (a)   It is arbitrary, capricious and an abuseof discretion, and otherwisenot

22     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             right;
       statutory

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,
                                             ATTORNEYS FEES
1                   (0     It was unwarrantedby the facts to the extent that the facts are subject
2    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           67.     Plaintiff re-allegesas though fully set forth the allegationsof Paragraphs1
 6   through 66 as though fully set forth herein.
 1          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           a.     By ernploying a processthat is arbitrary, capricious,and an abuseof
11   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.

20                                  THIRD CLAIM FOR RELIEF

2L                         (DeclaratoryRelief Pursuant 28 U.S.C. $ 2201)
                                                     to

22           69.     Plaintiff re-allegesas though fully set forth the allegationsof ParagraphsI

23   through 68 as though fully set forth herein.

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

25    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
1                                 FOURTII CLAIM FOR RELIEF
2                         (Attorney's FeesPursuant 23 U.S.C. $ 2412(d)0))
                                                 to

3            71.    plaintiff re-allegesas though fully set forth the allegationsof ParagraphsI

4     through 70 as though fully set fonh herein.
5            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, specialcircumstances not exist that
                                                                         do

 B    make an award of attorney's fees in this caseunjust. Plaintiff accordingly seeksthe recovery
 9    of his attomeys fees, costs and expenses this action pursuantto the Equal Accessto Justice
                                              in

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

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
                                 o
                            ,I ohn F H e adorrr c           5r09850956                 p,0r




                           ORDER all or rlny $uchotherrelief or differentrelief, a$may hejust and
           I
                     4,
               propr underthesccirtum$tanco.s.
           3                                            JURY DAMAND
                                            domnndstrial hyjtry on all claims tfiable.
                     Theplaintilfrs$pactfully     a                          so


           6                8,2013
               Dsted:Februnry                                                 BRI,INI LLP
                                                                      SINI.JNTJ


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