John Cota's lawsuit to regain Coast Guard license by Bay Area News Group

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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

UNITED STATESDISTRICTCOURT

FORTHE NORTHERNDISTRICTOF CALIFORNIA

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

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

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

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

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

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

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

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

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

agencyaction under the Administrative ProcedureAct. In separateand independentcounts,

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

review which producedthe final agencyaction is unconstitutional in that the process

employed deprived Plaintiff of his due processrights. PARTIES

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

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

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

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),

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

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

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,

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

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

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

073958 with endorsernentsfor unlicensedratings in the Deck Department,including Able

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

merchantmariner's documentshave sincebeen consolidatedinto a single Merchant

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

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

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

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

of that letter is attachedhereto as Exhibit "l'"

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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

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

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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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This lawsuit should be assignedto the San FranciscoDivision of this Court

becausea substantialpart of the eventsor omissionsgiving rise to the lawsuit occurredin

San Franciscoand Oakland. PROCEEDINGS BELOW AND FACTUAL BACKGROUND

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10.

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

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

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

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.

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

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

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

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

Bar Pilots Association.

12.

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

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

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

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

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

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

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

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

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

approvedby the California StateBoard of Pilot Commissioners,licensedby the Stateof

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

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

examinationreports were reviewed by Chief QuartermasterHogge, managerof the Pilotage

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

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

annualphysical examinations.

I 3.

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

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

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

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

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

14.

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

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

of COSCO BUSAN) and Plaintiff seekingdamagesfor resourceinjuries causedby the spill

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

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

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

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

J. Cota from bringing an administrativeproceedingagainstany governmental

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

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

understoodand agreedthat such an administrativeproceeding,if any is filed,

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 Statesin Action No. 08-

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

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

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

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

medicationson his 2006 and 2007 annualphysical exam forms. Thesefelony chargeswere

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

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

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

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

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

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

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

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

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

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."

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

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

potentially worse oil spill.

18.

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

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

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

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

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

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

defendhis Statelicensebefore his scheduledcriminal trial as doing so would have

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

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

as a SanFranciscoStatebar Pilot.

19.

In Decernber,2007,the CoastGuardoffered Plaintiff the choiceof a

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

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

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

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

results,would return his license.

20.

Plaintiff therefore chosethe deposit agreementoption and enteredinto a

written agreernentwith Coast Guard whereby he would deposithis credentialswith them

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

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

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

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

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

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

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

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

pending criminal action.

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.

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

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

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

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

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

23.

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

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

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

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

Coast Guard NMC assumedmedical evaluation approvalsand license-issuingdecisionsfrom

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

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

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

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

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

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

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

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

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

seekingmedical review and return of Plaintiff s licensepursuantto the Voluntary Deposit

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

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

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

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

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

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

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

licensepursuantto the Voluntary Deposit Agreementbecausethe Coast Guard ostensibly

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

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

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

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

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

Coast Guard OCMI becauseSector San Franciscohad executedthe Voluntary Deposit

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,

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

independentphysician" within the meaning of the Voluntary Deposit Agreernentsincehe had

beenCaptainCota's primary carephysiciansince 1973.

26.

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

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

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

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

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

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

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

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

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

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

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

CoastGuard OCMI recommendedthat Captain Cota be examinedby anotherindependent

physician.

27.

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

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

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

28.

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

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

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

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

29.

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

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

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,

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

DECLARATORYRELIEFAND COMPLAINT FORruDICIAL REVIEW,VIOLATION OF DUE PROCESS, ATTORNEYSFEES

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

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

31.

On July, 7,2010, the CoastGuardNMC acknowledgedreceiptof Captain

Cota's application for renewal and requestedadditional medical documentationon eight

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

32.

Captain Cota submitted all documentationresponsiveto the Coast Guard

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

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

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

33.

In a letter datedJanuary24,2011, the CoastGuardNMC informed Captain

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

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

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

Provigil, acceptablefor safety-sensitivepositions."

34.

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

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

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

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

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

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

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

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

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

EvaluationsDivision and FederalMaritime Surgeon,with any questionsabout follow-up

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

reconsiderationinclude updateson Captain Cota'srecent right humerus fracture and his

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

ATTORNEYSFEES

35.

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

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

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

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

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

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

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

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

respectively.

36.

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

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

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

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

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

altering.

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37.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Coast Guard NMC requestingclarification and documentation,such as publications or

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

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

clarification.

41.

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

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

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

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

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

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

and then undergo successfultesting. A secondclarification requestletter was sentto NMC

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

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

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

would agreesuccessfulresults would resolve concernsof unfitness. This clarification

requestaskedfor acknowledgementof receipt and that NMC extend the appealperiod to 30

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

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

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

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administrative appeal. 42.

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

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

his MMC.

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

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

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

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

StateBoard of Pilot Commissionersto perform the pilots'annual physicals.

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

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

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

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

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

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

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

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

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

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

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

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

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

Apil29,20l

Qualification Evaluation and determinedthat Captain Cota met all professionalrequirernents

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

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

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

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

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

44.

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

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

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

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

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

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

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

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

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.

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

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

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

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

Commandantof the Coast Guard which included the following:

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

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

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

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

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

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

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

Provigil, then he would qualify for a MMC."

46.

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

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.

47.

Defendant Coast Guard Commandant,through the Acting Director of the

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

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

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

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

denial.

48.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

49.

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

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

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

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

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

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

Cota's fracturedhumerushad healed and that his OSA was adequatelytreatedwith

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

position.

51.

Notwithstanding the recommendationof the Coast Guard's reviewing

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

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

issues.

52.

As for the secondissue,the professionalrenewal requirementscited by NMC

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

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

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

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

requirementsto renew his credentials. In communicationswith personnelat the Coast

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

Captain Cota indicated his awarenessof the needto satisff additional professional

coMpLAtNT FoR]uotcw

REVrEw, vIoLATIoN oF DUE PRocESS,DEcLARAToRY RELIEFAND ATTORNEYSFEES

qualification requirementsbut requestedthat the Coast Guard resolve the medical issues

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

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

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

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

Cota to then take the necessaryclassesto satisfu his professionalqualification requirements.

53.

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

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

implication that Captain Cota meetsthe professionalqualifications for his other officer

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

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

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

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

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

not meet the professionalqualifications of his other officer endorsements.

54.

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

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

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

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

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

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

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

Cota's appealand thereby violate his due processrights.

55.

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

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

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

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

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

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

for denying renewal of Captain Cota's MMC'

56.

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

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

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

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

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

CaptainCota's appeal.

57.

The Coast Guard Acting Director, PPD's considerationof uncharged

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

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

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

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

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

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

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

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

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

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

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

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

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

protectedby the due processrequirementsof the Fifth and Fourteenth

COMPLAINT FOR ruDICIAL

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

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

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

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

mariner must be provided with an administrativehearing conductedunder 46

CFR Part 5 where the credentialmay be revoked for misconduct.

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

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

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

and there were no pending Suspension& Revocation chargesagainstCaptain Cota.

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

presumptionof fraudulent concealmentby Captain Cota demonstratesthe Coast Guard's

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

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

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

59.

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

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

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

Continuity to Captain Cota.

60.

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

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

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

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

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

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

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

61.

The Coast Guard Acting Director, PPD's subsequentdenial groundswere

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

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

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

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

MMC.

62.

The apparentCoast Guard strategyschemedbefore December21,2007 was to

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

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

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

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

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

(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

licensethat is protectedby the due processrequirementsof the Fifth and Fourteenth

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

66.

following reasons: (a)

2I 22

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

in accordancewith law:

(b)

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

(c)

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

statutoryright;

(d)

It is without observanceof procedurerequired by law;

2'7

(e)

It is unsupportedby substantialevidence;

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

1 2

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

to a trial de novo by this Honorable Court.

SECOND CLAIM FOR RELIEF

(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

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

of the United StatesConstitution as follows:

10 11

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

discretion;

by ignoring or failing to observeproceduresrecognizedor required by law;

by issuing or rendering decisionsunsupportedby substantialevidence,or

following guidelines and proceduresspecifically prohibited by statutesof the United States

and the law arising under thern;

by issuing decisionsunwarrantedby the facts;

and by the Commandant'sissuing a decision constituting final agencyaction

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

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

(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

(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

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

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

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

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

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

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

REVERSE or VACATE the Decision of the United StatesCoast Guard

CommandantdatedFebruary 13,2012 and order the defendantsCommandantand the

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

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

with all his endorsernents;

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

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

an abuseofdiscretion; becausethey ignored or failed to follow proceduresrecognizedby

law; becausethey rendereda decision unsupportedby substantialevidence;and becausethey

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

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

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

under the Fifth and FourteenthAmendmentsof the United StatesConstitution and are all

thereforeNULL, VOID and UNENFORCEABLE;

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

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

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

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

a trial hyjtry on all claimssotfiable. domnnds Theplaintilfrs$pactfully

SINI.JNTJ BRI,INI LLP

8,2013 Dsted:Februnry

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

tttw,

TION OF DUE ATI1}RNHY$ TST,,9

V RNLIHTANCI