UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA Docket Number: 99-0187 

UNITED STATES COAST GUARD, Case Number: PA99001173 

 Complainant, 

 vs. 

 

Merchant Mariner’s Document 

[REDACTED] 

Issued to: 

JOHN P. LOVE, JR., 

 Respondent 

ORDER GRANTING RESPONDENT’S REQUEST FOR ATTORNEYS’ FEES 

AND EXPENSES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT 

I. PRELIMINARY 

The procedural facts involved in this matter are well known and most of them

have been documented in the record through various motions and orders and will not be

repeated herein. In addition, it is important to note that the parties have maintained a 

non-adversarial position and have stipulated to award attorneys’ fees and expenses to the 

Respondent under the Equal Access to Justice Act (EAJA). 

On December 27, 1999, the Respondent filed a motion for attorneys’ fees and 

expenses entitled, Respondent’s Verified Application for Award of Attorneys’ Fees and 

Other Expenses (Application). The Respondent’s Motion was submitted with a 

Stipulated Agreement (Agreement) between the Coast Guard and the Respondent and 
provided for the award of $10,000 (ten thousand dollars) pursuant to the Equal Access to 

Justice Act. See 49 C.F.R. Part 6 (1999). 

The Application and Agreement stipulated to the award of attorneys’ fees and 

expenses but lacked the required information under the EAJA. The Agreement between 

the Coast Guard and the Respondent contained a provision to “waive[ ] any requirement 

for the submission of additional documentation in support of the application and 

stipulates that the amount is proper and in accordance with the requirements of the law.” 

Clearly, the parties could not legally waive the legal documentation required under the 

EAJA statute and the undersigned issued an Order to the Respondent to provide the 

required documentation. See Order to Provide Documentation for Respondent’s Motion 

Pursuant to the Equal Access to Justice Act, (February 7, 2000); see also 49 C.F.R. § 6.21 

(1999) (stating the “application shall be accompanied by full documentation of the fees 

and expenses . . . .”). On February 23, 2000, the Respondent submitted “a detailed 

accounting of Respondent’s legal fees and costs incurred in this matter.” 

Following the submission of the Respondent’s detailed accounting certain 

threshold issues remained. At this point, it should be noted that the Coast Guard had only 

stipulated to the amount of the award and it did not provide any documentation on 

whether it was agreeing that the agency’s position was not substantially justified. This is 

important to note because the EAJA law does not allow an award of attorneys’ fees 

where the agency is substantially justified in bringing an action and because the facts in 

the written record, where the Respondent tested positive for drugs, suggest that the Coast 

2
Guard was in fact, substantially justified when it filed its Complaint against the 

Respondent.1

 This threshold issue remained unanswered in the Application and 

Agreement and on April 28, 2000, the undersigned ordered the Respondent to show cause 

why his claim should not be denied. The Show Cause Order was used because it was 

more desirable and was less burdensome than scheduling hearings on the EAJA claim. A 

telephone conference was held on May 9, 2000, to discuss the Show Cause Order and the 

underlying “substantial justification” issue. On May 19, 2000, the Respondent filed its 

“Respondent’s Memorandum in Response to the Show Cause Order Regarding Stipulated 

Application for Fees & Expenses Pursuant to the 49 C.F.R. Part 6 (Respondent’s Reply). 

On that same day, the Coast Guard filed a reply entitled, Government Reply to Order to 

Show Cause Why Application for EAJA Fees Should Not be Denied (Agency Reply). 

The undersigned has considered the entire record in this case and it is clear that 

the parties desire to settle this matter. After reading their responses to the Order to Show 

Cause, the precise terms of their agreement are manifest. In his response, the Respondent 

states: 

Precisely because of the burden, expense, and uncertainty associated 

with litigation, the parties herein have reached a settlement in good 

faith on the issue of attorneys’ fees and expenses. Both parties have 

carefully weighed the burdens and risks associated with litigation and 

concluded the settlement regarding an award of attorneys’ fees and 

expenses is in their interests. 

Respondent’s Reply at 8. 

 

1

 Coast Guard policy concerning a positive drug test result for the use of a dangerous drug is clear. Most 

recently it was set forth in G-MOA Policy ltr. 3-99, dated August 4, 1999. It states in pertinent part, 

“where evidence indicates that a mariner has used a dangerous drug, i.e. positive drug test or other evidence 

of use, IOs shall pursue revocation of the merchant mariner’s credentials (MMC) under 46 USC 7704(c).” 

3
The Coast Guard’s response states: 

The Agency’s position to stipulate to the award of attorneys’ fees 

and expenses in this matter was done in the public interest and 

exclusively for the purpose of settling the captioned matter without 

further litigation and attendant costs. 

Agency’s Reply at paragraph 6. 

Given the above, it is evident that the parties agreed to settle the claim for an 

EAJA award on the basis of the consideration of trial hazards and costs. These are 

certainly acceptable and appropriate reasons to settle disputed issues involving EAJA 

claims. Had the parties limited their submissions to the statements quoted above, a brief, 

concise order would have been issued approving the EAJA Application and Settlement in 

which further comment would not have been necessary. However, in his response, the 

Respondent raises other issues that cannot be left unanswered. To do so, would invite the 

adoption of improper and illegal precedents. 

In order to fully understand the arguments made in the Respondent’s reply to the 

Order to Show Cause, it is necessary to review certain salient law and facts. The 

underlying case was initiated on September 9, 1999, where the Investigating Officer (IO) 

served a Complaint on the Respondent for the use of or addiction to the use of a 

dangerous drug pursuant to 46 U.S.C. § 7704 (c) (West Supp. 1999). On October 27, 

1999, the ALJ assigned to this case dismissed the matter without conducting a hearing.2

 

The ALJ based his decision on the pleadings and did not make any formal findings of 

fact. Thus, the prior record is devoid of facts that may have been important in 

 

2

 The Administrative Law Judge retired in December 1999. The EAJA application was assigned to the 

undersigned thereafter.

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considering the EAJA claim. In any event, for whatever reason the Coast Guard did not 

appeal the ALJ’s decision and on December 23, 1999, the Respondent filed a timely 

motion for the award of attorneys’ fees and other expenses under the EAJA. 

It is well settled that the EAJA’s primary purpose is to award attorneys’ fees and 

other expenses in order to “deter the government from bringing unfounded suits or 

engaging in unreasonable administrative behavior.” Panloa Land Buying Ass’n v. 

Farmer’s Home Admin., 844 F.2d 1506, 1509 (11th Cir. 1988). The legal standard and 

pertinent regulations provide in part that: 

An eligible applicant may receive an award for fees and expenses 

incurred by that party in connection with a decision in favor of the 

applicant, . . . unless the position of the Department over which the 

applicant has prevailed was substantially justified or special circumstances 

make the award sought unjust. 

49 C.F.R. § 6.9 (1999). 

While the EAJA is relatively new, a reading of the statutory law and regulations as well 

as the relevant case law does provide guidance in its application. The regulation provides 

that “[n]o presumption arises that the Department’s (Coast Guard’s) position was not 

substantially justified simply because the Department did not prevail.” 49 C.F.R. § 6.9 

(parenthesis supplied). Further, the same view is expressed in the House of 

Representative Committee report and in the case law. They provide that the 

reasonableness standard: 

[S]hould not be read to raise a presumption that the Government 

position was not substantially justified, simply because it lost the 

case. Nor, in fact, does the standard require the Government to 

establish that its decision to litigate was based on a substantial 

probability of prevailing. 

5
Keasler v. United States, 766 F.2d 1227, 1231 (8th Cir. 1985) (quoting H.R. Rep. No. 

1418, 96th Cong., 2nd Sess., reprinted in 1980 U.S. Code Cong. & Ad. News 4984, 

4990). 

II. DISCUSSION 

In considering any settlement submitted by the parties to a proceeding, the 

undersigned would generally approve the agreement unless it was illegal or against public 

policy. To that end, in this particular matter in examining the Application and Agreement 

it became clear that the parties failed to address the legal standard set forth in the EAJA 

law, which again states succinctly that: 

An eligible applicant may receive an award . . . unless the position 

 of the Department over which the applicant prevailed was substantially 

 justified or special circumstances make the award sought unjust. 

49 C.F.R. § 6.9 (emphasis supplied). 

In addition to the language in the law, the record in this case supports the conclusion that 

not only was the IO substantially justified in filing the Complaint where the Respondent 

had tested positive for drugs, but that, had he not done so, he would have been in 

violation of Coast Guard policy.3

 So here, it becomes important to know if the Coast 

Guard in its Stipulated Agreement was agreeing with the assertion made in the 

Respondent’s Application, that: 

As set forth in the Respondent’s papers, Respondent alleges that 

the position of the agency in filing its complaint in this matter 

was not substantially justified. 

Application at 2, paragraph 2. 

 

3

 See supra note 1. 

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The Stipulated Agreement contained nothing specific regarding the legal requirement. 

However, it did state that the agency ”waives any requirement for the submission of 

additional documentation in support of the application” and it “stipulates that [the] 

application is proper and in accordance with the law.” Agreement at 2. Neither the 

waiver or the assertion that the Application was in accordance with the law clarified the 

“substantial justification” issue and it was not until the replies to the Order to Show 

Cause were filed that the positions of both parties became clear. In his Reply, the 

Respondent not only still asserts that the Coast Guard was not substantially justified in 

filing the Complaint, but further, that by entering into the agreement consenting to the 

award, “the Agency had de facto agreed that its position in the underlying action was ‘not 

substantially justified.’” He then, even at this late date, mistakenly asserts that “counsel 

for the Agency agreed to provide such a statement to the CALJ pursuant to the Show 

Cause Order.” Apparently, counsel for the Agency has not agreed to provide such a 

statement because in its reply, the Coast Guard states: 

Nothing herein should be construed as an admission of fault or 

liability on the part of the Agency or that the Agency was not 

substantially justified in filing a Complaint, initiating subject case. 

Agency Reply at paragraph 6. 

So here, contrary to the Respondent’s assertions and beliefs, the Coast Guard is agreeing 

to the settlement of the EAJA claim, not because it is agreeing its actions were not 

substantially justified, but as has been noted, because of trial hazards and costs. Indeed, 

if it had indicated agreement with the Respondent’s position, the undersigned would not 

have approved the Settlement Agreement, but rather would have held further hearings to 

clarify the matter. 

7
Given all of the above, the Respondent, in essence, in support of the premise that 

”the settlement is in accordance with the law,” argues that (1) Department of 

Transportation regulations specifically provide for the settlement of EAJA claims, (2) the 

regulations provide authority to settle an EAJA claim without a trial on the merits, (3) the 

Show Cause Order misapprehends the regulatory framework for an award of attorneys’ 

fees because it “impermissibly shifts to Respondent the burden of proof to justify award,” 

and that (4) since the Agency was willing to state on the record “that the Agency’s 

position was ‘not substantially justified’ . . . the Show Cause Order is clearly inconsistent 

with both DOT regulations and the statute.” Respondent’s Reply at 6. 

As to Respondent’s analysis of DOT regulations concerning settlement, he is 

correct. They not only provide for settlement, but as is true in most agencies, they favor 

settlement. As to settlement without the necessity of trial on the merits, the Order to 

Show Cause in no way was a trial on the merits or even a further hearing. It was intended 

and, indeed resulted in, the parties clarifying the specific terms of their agreement to 

make certain that it was in accordance with the pertinent law and regulations. As to the 

assertion that the Show Cause Order shifts the burden of proof to the Respondent, it is 

incorrect. First of all, there is no question involving burden of proof. In this case, there 

was no adversarial proceeding involving that legal concept, but rather an agreement that 

had to be clarified and approved. Finally, as to the allegation that the agency is willing to 

state on the record that its position was not substantially justified, as has been noted - - it 

is simply wrong. Further, Respondent argues that because the agency is willing to state 

on the record that its position was not substantially justified, it leads the Respondent to 

8
conclude that “the Show Cause Order is clearly inconsistent with both DOT regulations 

and the statute.” Id. In so arguing, the Respondent apparently recognizes the fact that the 

law does not allow claims if the agency’s position was substantially justified. This is the 

precise point that required clarification of the Stipulated Agreement in the first instance

and caused the issuance of the Show Cause Order. 

In his response the Respondent asserts that, “The Settlement Is Consistent With 

Agency Policy.” Under that heading he makes a series of basic assertions regarding 

agency settlement policy, most of which are not in issue. He then proceeds to argue that 

the Show Cause Order was improper because it somehow violates DOT regulations. 

Those arguments are invalid. They lead to broad, imprecise, unsupportable statements 

that are both, illogical and argumentative. To allege that, “[s]urely, if the DOT had 

intended for counsel for the Agency to concede affirmatively that the position of the 

Agency was not ‘substantially justified’ before allowing the ALJ to approve a stipulated 

award, the DOT regulations would provide [for] that,” is incomprehensible. 

Respondent’s Reply at 9. Settlements are crafted on an ad hoc basis and any regulation 

that would require in all settlement cases the restrictive provision the Respondent 

suggests, would be unwise and patently unworkable. Indeed, such a provision would 

prevent the approval of the settlement involved here. As has been noted, the agency’s 

agreement to the monetary award is based on trial hazard and costs that are related to 

proving if there was or was not substantial justification, and not on any required 

admission or agreement by the Coast Guard that its action was not substantially justified. 

9
At page 10 (ten) of his reply to the Order to Show Cause the Respondent 

undertakes to answer 5 (five) questions that were set forth in the Show Cause Order. In 

doing so, the Respondent does not really “answer” the questions. Rather, he embarks on 

argument based on unfounded and/or argumentative facts. For example: 

• In response to first question in the Show Cause Order, the Respondent 

erroneously states “that the Agency has de facto agreed that its position in the 

underlying action was not ‘substantially justified.’” As previously noted, the 

Coast Guard had never provided a written statement on the Agency’s position 

until May 18, 2000 where it strongly stated: 

“Nothing herein should be construed as an admission of fault or liability 

on the part of the Agency or that the Agency was not substantially 

justified in filing a Complaint, initiating subject case.” 

This fact involves the most important part of the Stipulated Agreement and is 

the pivotal fact relating to the legality of the agreement pertaining to the Coast 

Guard’s substantial justification or lack thereof. So here, the Respondent is 

wrong to infer a de facto agreement when in actual fact there is none. 

• As to the second question, the Respondent’s position that the Coast Guard had 

“substantial evidence” that the positive drug test was faulty before bringing 

the Complaint is based totally on unfounded testimony and conclusions. It is 

clear that present Coast Guard policies render the Respondent’s defense that 

his positive urinalysis was due to consumption of hemp seed oil as nonavailing. See Attachment 7, Compl’t Memorandum to Support Coast Guard’s 

10
Reply Motion, (October 15, 1999) (referencing to DOT memorandum that 

states in part “ MRO’s must never accept an assertion of consumption of 

hemp food product as a basis for verifying a marijuana test as negative”). 

Moreover, the MRO specifically did not find nor was he given, any other 

valid, legitimate reason why the Respondent’s urine specimen contained 

marijuana metabolites. 

• As to whether the Maine State Police ever tested the eyeglass container, the 

Respondent states that the record in Attachments 6, 7, and 12, contained in its 

Memorandum in Support of Respondent’s Motion to Dismiss, provide 

consistent evidence that the eyeglass container was tested and found not to 

contain “any traces of THC.” A review of Attachment 6 provides the 

following statement from the Maine State Police lab: 

On May 18, 1999 we received one eyeglass case with residue and 

one pipe with residue. No cannabis was detected in residue from

the pipe. 

What the Respondent fails to note is that the report curiously omits any 

reference to an analysis of the eyeglass container. The Respondent then 

provides conclusory statements made by the President of the Maine Maritime 

Academy that has no basis in the written record, to support his statements that 

the eyeglass container was tested with negative results. As the IO correctly 

noted, the written record was devoid of any test result of the eyeglass 

container when the Coast Guard filed its Complaint. 

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• Respondent’s counsel referred to Attachments 8 (eight) and 9 (nine) from its 

Memorandum in Support of Respondent’s Motion to Dismiss, to address the 

question concerning the second search of the Respondent’s room. This 

question was raised because the record supports the contention that the 

Respondent’s room was searched on that particular occasion due to suspected 

drug use which gave rise to his testing positive on a later drug test. 

The Attachments provide uncontested evidence that the Respondent’s room

was searched on that particular occasion for the presence of drugs. The 

administrative search warrant clearly states a probable cause belief that the 

Respondent’s room contained drugs. This belief was formulated by a 

previous, contemporaneous search that produced an eyeglass container which 

contained a small amount of residue that field tested positive for marijuana. 

The results of both search warrants produced 2 (two) positive field tests on the 

Respondent’s property indicating the presence of marijuana and provide a 

clear indication that the Respondent might have been reasonably suspected of 

using drugs and that his subsequent drug test was given with reasonable cause. 

So here, Attachment 8 and 9 indicate that there were positive field drug tests 

that justified the reasonable cause drug test that the Respondent tested positive 

giving rise to the Complaint. The Decision and Order dismissing the 

Complaint never discussed these facts but they are relevant in considering the 

EAJA claim because they relate to the question of substantial justification.

12
• With regard to the drug testing history of the Respondent, the referenced 

Attachment 1 (one) in The Memorandum in Support of Respondent’s Motion 

to Dismiss is simply a statement that the Respondent has been enrolled in an 

approved program for 6 (six) months and that he has not failed or refused to 

take a drug test. It clearly does not state what tests, if any, were given. 

. 

As to the award agreed to by the parties, it should be noted that the Coast Guard 

stipulated to an award amount of $10,000 (ten thousand dollars). In doing so, the Coast 

Guard states, the Respondent “incurred greater costs in defending [the case].” While this 

may or may not be true, the per hour rate pursuant to 49 C.F.R. § 6.11 (b) (1999), limits 

attorneys’ fees to $125.00 (one hundred twenty five dollars) per hour and not the $250.00 

(two hundred fifty dollar) per hour rate charged by Respondent’s counsel. A generous 

reading of the Respondent’s detailed expenses show that his claimed expenses, as applied 

under the law, yield a figure much closer, and could even be lower, than the stipulated 

payment of $10,000 (ten thousand dollars). 

Finally, there are two aspects of the Respondent’s Reply to the Order to Show 

Cause that need to be addressed. The first is exemplified at page 13 (thirteen) of the 

Respondent’s Reply wherein he refers to the 5 (five) questions contained in the Show 

Cause Order and mistakenly states that they are “irrelevant to an award for attorneys’ 

fees.”4

 He then embarks on a convoluted argument that hypothecates that if the agency 

 

4

 The gist of the Show Cause Order and this Order is that an EAJA award cannot be made if the agency’s 

position is “substantially justified.” Where the Application and Agreement are unclear on this point, the 

questions are relevant and directly related to the issue. This is especially true of the first question posed. 

13
disputed the Application, the “reasonableness “ standard would be the appropriate 

standard. He asserts that the Coast Guard would be estopped from challenging Judge 

Gardner’s Decision and Order which held that there was an unreasonable search that 

cannot be used as a basis for a “reasonable cause” drug test. Finally, he then concludes 

that somehow the position of the agency in the underlying hypothetical adversarial 

proceeding would not be “substantially justified.” 

While Respondent‘s argument gives new meaning to the term “bootstrapping,” it 

does not warrant a response except to say that there is no legal basis, and none is cited, to 

support invoking the doctrine of estoppel against the Coast Guard on the basis of Judge 

Gardner’s Decision and Order. What does require comment is the Respondent’s 

reference to the prior Decision and Order dismissing the Complaint. As the Show Cause 

Order noted, the decision on the merits of the case is not dispositive of the EAJA claim. 

In that case, the Judge made no comment, much less a holding involving any claim for 

attorneys’ fees. Further, the holding that any evidence derived from what it termed an 

“unreasonable search” of the Respondent’s dormitory room cannot be used as a basis for 

a “reasonable cause “ test is erroneous. It ought not and cannot affect, on the basis of any 

argument including collateral estoppel, the determination of the EAJA claim. Indeed, if it 

had become necessary the undersigned would have held further hearings in the EAJA 

case to resolve the question. Failing that, the undersigned would have held that, based on 

the record of the underlying case, there were ample facts to support the “reasonable 

cause” drug test that was required. The record clearly indicates that at the time that drug 

14
test was given, the Maine Maritime Academy had 2 (two) positive field test results for the 

presence of drugs on the personal property of the Respondent. 

The second aspect of the Respondent’s reply to the Order to Show Cause that 

requires comment is his repeated reference to the actions of the Maine Maritime 

Academy and its President, in dealing with the Respondent. Those actions, to the extent 

that they support the Respondent, relate to facts relating to merit issues in the case, and 

not to the EAJA claim. The statements made are themselves of questionable weight and 

in some instances are inconsistent with other facts of record. If, in considering the EAJA 

Application the statements of the President of the Maine Maritime Academy were 

relevant, they would have been made part of the record under oath, as would the 

testimony of other witnesses whose testimony on the same facts was also relevant. 

III. SUMMARY 

This case is an important case and in deciding the EAJA claim the following 

holdings are made: 

1. Where there is an application and stipulated agreement for an EAJA award, 

the ALJ not only has the authority but the duty to ensure that the application 

and agreement are in accordance with the law and not against public policy. 

2. Where the terms of the application and agreement are ambiguous, the ALJ not 

only has the authority, but the duty to ensure that any ambiguities are clarified 

15
so that the pertinent documents clearly reflect the intended agreement of the 

parties. 

IV. ORDER 

IT IS HEREBY ORDERED that the Respondent’s Application for the award of 

attorney fees and expenses under the EAJA for $10,000 (ten thousand dollars) is 

APPROVED. If neither the applicant nor the agency seek review within 30 (thirty) days 

after issuance of this Order, this decision will become final. For the purposes of this 

action, the department of review is the United States Coast Guard. An appeal of this 

Order may be filed using the process as described in 33 C.F.R. Subpart J. (1999). A copy 

of Subpart J is attached to this order. 

 

 Hon. Joseph N. Ingolia 

 Chief Administrative Law Judge 

Done and dated on this 16th of June, 2000 

Baltimore, Maryland 

16
[REDACTED] 

17