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. 

 

JOHN P. LOVE, JR., 

 Respondent 

BEFORE: JOSEPH N. INGOLIA 

 Chief Administrative Law Judge 

ORDER DENYING RESPONDENT’S VERIFIED AND SUPPLEMENTAL 

APPLICATION FOR ATTORNEYS’ FEES AND OTHER EXPENSES UNDER 

THE EQUAL ACCESS TO JUSTICE ACT

On August 15, 2000 the Respondent filed a request1

 for attorneys’ fees and other 

expenses (Verified Application) pursuant to the Equal Access to Justice Act (EAJA). 

The Verified Application follows the award of the Respondent’s original EAJA claim in 

which the Coast Guard and the Respondent filed a Stipulated Settlement Agreement to 

award the Respondent attorneys’ fees and other expenses under the EAJA. The 

undersigned approved the Application and Stipulated Settlement Agreement following 

the clarification and correction of the original EAJA Application and Settlement 

Agreement through the use of a Show Cause Order. The approval was based on the 

 

1

 The Respondent’s request is entitled, Respondent’s Verified Application for Award of Attorneys’ Fees 

and Other Expenses Pursuant to the Equal Access to Justice Act, 49 C.F.R. Part 6 and Other Law. In

addition to this EAJA request, the Respondent filed a (1) Petition for Rulemaking or Exemption for 

Attorney Fee Rate In re United States v. John P. Love, Jr.; Docket No. 99-0187, (2) Affidavit in Support of

Petition to the Department of Transportation for Attorney Fee Rate Pursuant to 49 C.F.R. Part 5, (3) FOIA 

Request In re United States v. John P. Love, Jr.; Docket No. 99-0187, and (4) Respondent’s Memorandum

in Support of Application for Attorney Fees and Expenses Pursuant to EAJA, 49 C.F.R. Part 6, and Other 

Law. 

1
determination that the parties desired to settle the original EAJA claim in order to avoid 

trial hazards and costs associated with whether or not the Coast Guard was substantially 

justified in filing its Complaint against the Respondent. The Respondent now seeks 

additional attorneys’ fees and expenses incurred during the time period required to 

approve the parties Stipulated Settlement Agreement. Specifically, the Respondent, after 

submitting a Stipulated Settlement Agreement with his original EAJA Application now 

seeks additional EAJA fees outside of his agreed upon Stipulated Settlement Agreement 

for costs incurred to respond to the Show Cause Order. He also requests that the record 

be held open to allow him to make further submissions for additional attorneys’ fees. 

I. FINDINGS OF FACT 

1. On September 10, 1999, the United States Coast Guard (the “Agency”) filed a 

Complaint against the Respondent, John P. Love, Jr., charging him with the Use of or 

Addiction to the Use of Dangerous Drugs in violation of 46 U.S.C. § 7704(c) (West 

Supp. 1999). The Complaint alleged that the Complainant took a drug test and tested 

positive for Marijuana Metabolite. 

2. On September 24, 1999, the Respondent filed an Answer to the Complaint together 

with a Motion to Dismiss or in the alternative, a Motion for Summary Decision and a 

Motion for an Expedited Hearing, together with a Memorandum in Support of 

Respondent’s Motion. The Motion to Dismiss asked for the payment of the 

Respondent’s costs and attorneys’ fees by the Agency. 

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3. The Coast Guard filed a reply to the Motions filed by the Respondent on October 18, 

1999, together with a Memorandum to Support Coast Guard’s Reply Motion. 

4. By Decision and Order dated October 27, 1999, the presiding Administrative Law 

Judge (ALJ) 2 dismissed the Coast Guard’s Complaint. The Decision and Order 

contained no Findings of Fact and did not consider or even acknowledge the 

Respondent’s request for costs and attorneys’ fees. The holding made no 

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

5. By Application dated December 23, 1999, the Respondent moved for an award of 

attorneys’ fees and other expenses pursuant to 49 C.F.R. Part 6 (1999). The 

Application was submitted with a Stipulated Settlement Agreement (Agreement) 

between the parties, pursuant to the provisions of 5 U.S.C. §504, the Equal Access to 

Justice Act and 49 C.F.R. Part 6. In the Agreement the parties agreed that the Agency 

would pay $10, 000 to the Respondent for attorneys’ fees and expenses. 

6. The Application for an EAJA award was assigned to the undersigned. The 

Agreement accompanying it contained a provision waiving documentation, which 

documentation is required by the EAJA statute and the regulations. On February 7, 

2000, the undersigned issued an Order to Provide Documentation for Respondent’s 

Motion Pursuant to the Equal Access to Justice Act, 49 C.F.R. Subpart B, noting that 

the law required proper documentation of fees and expenses and hourly rate charges 

to be filed with the Application and that such documentation could not be waived. 

7. By submission received on February 23, 2000, the Respondent supplied the 

documentation required by the EAJA and the pertinent regulations. 

 

2

 The presiding ALJ retired in December of 1999. 

3
8. In further reviewing the Application and the Agreement, the undersigned undertook 

to ascertain whether or not they complied fully with the requirement of the EAJA and 

the pertinent regulations. The regulations provide 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 prevailed was 

substantially justified . . . . 

(emphasis added) 

and that, 

no presumption arises that the Department’s (Coast Guard) 

position was not substantially justified simply because the 

Department did not prevail. 

(parenthesis supplied)

9. In reviewing the Agreement in the light of the EAJA statute, the pertinent regulations 

and the applicable case law, as well as the record made in this case,3

 it became clear 

that there was a material, unresolved question regarding whether or not the Agency 

was substantially justified in filing the Complaint in this case. Not only was the 

Coast Guard silent on this question in the Stipulated Agreement, but rather than 

indicate that the Coast Guard was not substantially justified, the record in the case 

indicated that the Respondent had tested positive in a properly administered drug test 

and that Coast Guard policy was to seek revocation of a mariner’s license or 

document when that occurred.4

 

 

3

 The Decision and Order dismissing the Complaint failed to find any facts or resolve obvious factual 

differences or answer pertinent questions that were relevant to the issues raised by the EAJA Application 

and Agreement 4 G-MOA policy Ltr 3-99, dated August 4, 1999. It states in pertinent part: “[W] here 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).” 

4
10. Given the ambiguity of the Application and Agreement, and the questions raised by 

the record regarding substantial justification, the undersigned, on April 28, 2000, 

issued an Order to Show Cause Why the Application for Attorneys’ Fees and Other 

Expenses Pursuant to the Equal Access to Justice Act Should Not be Denied (Show 

Cause Order). A Show Cause Order was used rather than the scheduling of additional 

hearings on the matter to avoid undue expense and delay. The undersigned 

contemplated that the Show Cause Order would cause the parties to respond in 

support and clarification of their Agreement. 

11. The parties did respond and on May 9, 2000, the parties had a telephone conference 

with the undersigned. In it he explained the requirements of the EAJA and 

specifically noted that the parties needed to clarify whether or not they were agreeing 

that the Coast Guard was not substantially justified in filing the Complaint. The 

undersigned also noted that the record contained evidence involving a positive drug 

test and the Coast Guard’s policy in such instances. After some discussion and after 

there was no oral agreement regarding the issue of substantial justification during the 

telephone conference the undersigned directed the parties to file a written response to 

the Show Cause Order. 

12. In its reply to the Show Cause Order, received on May 23, 2000, the Coast Guard 

acknowledged that it had agreed to settle the Respondent’s EAJA claim for attorneys’ 

fees and expenses for $10,000. As to the question of whether or not the Coast Guard 

was agreeing that it was not substantially justified in filing the Complaint, it stated: 

The Agency’s decision to stipulate the award for attorneys’ fees 

expenses in this matter was done in the public’s interest and exclusively 

for the purpose of settling the captioned matter without further 

litigation and attendant costs. Nothing herein shall be construed 

5
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. 

(emphasis supplied). 

13. In his response to the Show Cause Order the Respondent states: 

. . . any question raised by the Show Cause Order 

has been answered by the admission by counsel for 

the Agency that the position of the Agency was not 

“substantially justified.”

and further that: 

. . . the record shows that by agreement the Agency 

has consented to the award. Therefore, the Agency 

has de facto agreed that its position in the underlying 

action was “not substantially justified." 

14. By Order dated June 16, 2000, the undersigned granted the Respondent’s EAJA 

Application and the Agreement was approved. The Order states: 

. . . it is evident that the parties agreed to settle the claim for 

an EAJA award on the basis of trial hazard and cost. These 

are certainly acceptable and appropriate reasons to settle 

disputed issues involving EAJA claims.

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15. The Order granting the EAJA Application and approving the Agreement specifically 

provides: 

If neither the Applicant nor the Agency seek review within 30

(thirty) days after issuance of the Order, this decision will become

final. For 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. 

 The Order also provided that: 

 

5

 The trial hazard involved relates to the question of whether or not the Coast Guard was substantially 

justified in filing the Complaint in this case. Since the Coast Guard took no position on the question and

did not allege it was substantially justified, the EAJA award could be made without violating the EAJA

requirement contained in the law itself. 

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[I]f the parties believe this matter should remain open for further hearings 

on the issues that they believe important and relevant and wish to hold 

the final approval of the EAJA award in abeyance until those issues 

are considered, they should so move. 

16. Neither the Agency nor the Respondent appealed the Order approving the EAJA 

award and Settlement Agreement. By letter dated July 24, 2000, to the Coast Guard’s 

legal officer the Respondent stated: 

Further to our telephone conversation last week and pursuant to 

49 CFR § 6.39, Respondent hereby requests immediate payment 

of the award of attorneys’ fees and expenses . . . 

17. On August 15, 2000, the Respondent filed Respondent’s Verified Application for 

Award of Attorneys’ Fees and Other Expenses Pursuant to the Equal Access to 

Justice Act, 49 C.F.R. Part 6, and Other Law (Verified Application). 

Contemporaneously he filed, Respondent’s Memorandum in Support of Application 

for Attorneys’ Fees Pursuant to EAJA, 49 C.F.R. Part 6 and Other Law. In the 

Verified Application the Respondent seeks an additional EAJA award of $18,947.81 

over and above the $10,000 he originally agreed to accept. In addition the 

Respondent’s Memorandum “reserves the right to supplement this Application 

following the receipt of information requested from the Agency.” 

18. By letter to the undersigned dated August 31, 2000, the Respondent stated that he had 

made a FOIA request of the Agency, that he reserved the right to supplement his 

submission, “following receipt of the information from the Agency,” and he 

requested that, “you permit us to supplement our application within 30 days after 

receipt of the information requested from the Agency.” 

19. In a letter to the undersigned dated September 13, 2000, the Respondent increases the 

amount of the Verified Application to $20,630.75. In it he also states that he “thought 

7
it useful to highlight our concerns about the necessity for receipt of agency 

documents,” and that, “ we first outlined our concerns about the bad faith of 

Complainant in our letter to you dated July 6, 2000, wherein we asked your Honor to 

revise the text of your order granting Respondent’s initial application for fees and 

expenses.” 

20. In Respondent’s Memorandum supporting his Verified EAJA claim he states: 

Because Respondent prevailed in this matter and the position of the 

Agency in the underlying adjudication and also through CALJ’s 

issuance of the Show Cause Order was not substantially justified, 

Respondent should be awarded additional attorneys’ fees and expenses 

pursuant to EAJA. 

II. ULTIMATE FINDINGS OF FACT 

1. The Respondent applied for and received an EAJA award of $10,000 as a result of a 

Stipulated Settlement Agreement with the Coast Guard. The award applied 

specifically to the action brought by the Coast Guard in this proceeding, which action 

was ended when the agreement was finally approved. Under the EAJA statute, the 

pertinent regulations at 49 C.F.R. Part 6 §§ 6.1 et seq., and the applicable case law he 

cannot now receive an additional award arising out of the same action. 

2. There are no extenuating circumstances that would warrant the setting aside of the 

Agreement entered into by the parties. When the Application for the EAJA award, 

together with the Agreement was approved, both the Respondent and the Agency 

were aware of the exact nature of their agreement and were contractually bound by it. 

By accepting the Agreement, by not appealing the Order Granting Respondent’s 

Request for Attorneys’ Fees and by requesting immediate payment, the Respondent is 

8
bound by its terms and cannot later receive an additional EAJA award arising out of 

the same cause of action. This is especially true when, at the time the Respondent 

accepted the Agreement, did not appeal and requested payment, he knew or should 

have known of any additional claim for an EAJA award. 

3. The record does not support the allegation that the Coast Guard was not substantially 

justified in filing the Complaint in this proceeding where it contains evidence that the

Respondent tested positive for drugs and where existing Coast Guard policy 

mandated revocation of a mariner’s document. Further, the Show Cause Order of the 

Administrative Law Judge cannot be imputed to the Coast Guard and is in no way 

related to any conclusion that the Coast Guard was not substantially justified in filing 

the Complaint in this proceeding. 

4. Even if the prior settlement did not preclude the granting of an additional EAJA 

award, the record in this proceeding does not support the approval of any such EAJA 

award by way of “Verified Application” or otherwise. Neither the Show Cause Order 

nor any other action by the ALJ could form the basis of a new or additional EAJA 

award and no action by the ALJ can properly be imputed to the Coast Guard as a 

basis for granting an EAJA award. 

5. The record in this case does not support the granting of the Respondent’s request that 

his application for a supplemental EAJA award be held in abeyance. 

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III. DISCUSSION 

The EAJA statute and pertinent regulations are clear and concise. They provide at 

49 C.F.R. § 6.5 that: 

The Act applies to adversary adjudications conducted by the 

Department of Transportation. These are adjudications under 

5 U.S.C. § 554 (the Administrative Procedures Act (APA)). 

(parenthesis supplied) 6

The regulation specifically refers to and includes cases involving the Coast Guard’s 

suspension or revocation of licenses. The crux of the regulations is set forth at section 

6.9 (a), Standards for Awards, which states in part: 

(a) 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 in a proceeding covered by this Part, 

unless the position of the Department over which the applicant 

has prevailed was substantially justified or special circumstances 

make the award sought unjust. The burden of proof that an award 

should not be made to an eligible applicant is on the Department 

where it has initiated the proceeding. No presumption arises that 

the Department's position was not substantially justified simply 

because the Department did not prevail. Whether or not the 

position of the Department was substantially justified shall be 

determined on the basis of the administrative record, as a whole, in 

the adversary adjudication for which fees and other expenses are sought. 

The regulations also provide at § 6.11 (b) that no award of a fee shall exceed $125 per 

hour rate and sections 6.17 and 6.19 have to do with certain net worth requirements. 

 

6

 (1) The ALJ presides over these adjudications under the APA. (2) The regulations at 49 C.F.R. § 6.13

provides that the Secretary of Transportation has delegated authority to take final action in these matters to

the head of the operating administration. In this case it is the Commandant of the Coast Guard. 

10
Section 6.21 states that: 

(a) The application shall be accompanied by full documentation 

of fees and expenses . . . 

and that, 

(b) The documentation shall include an affidavit from any attorney, 

agent or expert witness representing or appearing in behalf of the party . . . 

Section 6.29 of the 49 C.F.R. is particularly significant in this case which involves a 

proposed settlement. It states: 

 The applicant and agency counsel may agree on a proposed 

settlement of the award before final action on the application, 

either in connection with a settlement of the underlying proceeding, 

or after the underlying proceeding has been concluded, in accordance 

with the agency's standard settlement procedure.7

 If a prevailing party 

and the agency counsel agree on a proposed settlement of an award 

before an application has been filed the application shall be filed with 

the proposed settlement. 

In applying the applicable law and regulations in this case, it is clear that 

consideration of the Respondent’s Verified Application for an EAJA award must begin 

with the obvious threshold question of whether or not the Respondent can receive an 

additional EAJA award in this particular case after he has entered into a good faith 

 

7

 The “agency’s standard settlement procedure,” refers to the Coast Guard’s regulations at 33 C.F.R. §

20.502 (1999) which provides that: 

(a) The parties may submit a proposed settlement to the ALJ. 

(b) The proposed settlement must be in the form of a proposed decision, accompanied by a 

motion for its entry. The decision must recite the reasons that make it acceptable, and it must 

be signed by the parties or their representatives. 

(c) The proposed decision must contain – (1) An admission of all jurisdictional facts; (2) An 

express waiver of – (i) Any further procedural steps before the ALJ; and (ii) All rights to seek

judicial review, or otherwise challenge or contest the validity, of the decision; (3) A statement 

that the decision will have the same force and effect as would a decision made after a hearing;

and (4) A statement that the decision resolves all matters needing to be adjudicated. 

11
agreement with the Coast Guard to settle the matter, after the settlement has been 

approved by the ALJ, after he has demanded payment in accordance with the agreement 

and after he has failed to appeal the ALJ’s decision. 

It is well settled that where parties in good faith reach a settlement in an 

adversarial proceeding it is “a contract and once entered into is binding and conclusive.” 

Janneh v. GAF Corporation, 887 F.2d 432, 436 (2nd Cir. 1989). “An agreement to 

compromise and settle a claim may be enforced as a contract . . . .“ Interspace Inc. v. 

Morris, 650 F. Supp. 107, 109 (S.D.N.Y. 1986). That legal tenet is particularly 

compelling in this case because the settlement agreement, as approved, was not 

susceptible of any misunderstanding. Not only was it necessary to invalidate any waiver 

and order submission of fiscal records, but there was specific clarification in the Order 

approving the Application and Agreement that the settlement was actually based 

on the trial hazards involved on the question of whether or not the Coast Guard was 

substantially justified in filing the Complaint in this case. See Maywalt v. Parker & 

Parsley Petroleum Co., 67 F.3d 1072, 1079 (2nd Cir. 1995) (the court’s focus is to 

“determine whether a proposed settlement is fair, reasonable, and adequate,” by 

comparing “the terms of the compromise with the likely rewards of litigation”). Finally, 

throughout the entire settlement process the parties were completely aware of any 

additional fees and costs that may have altered the original amount agreed upon. Neither 

party sought to amend the agreement or to appeal the Order approving it, and the 

Respondent did not depart from his view that, “there are no disputed issues between the 

parties regarding the Stipulation for fees and expenses.” 

12
So here, it is held that the Original Application for an EAJA award and the 

Settlement Agreement submitted with it are valid and binding on the parties. In so 

holding it is well to note that the Respondent, neither in the Application itself nor in his 

supporting memorandum, ever addresses the effect of his agreeing to the settlement of the 

original EAJA claim arising from this proceeding. On the other hand, the Coast Guard

takes the position that awarding the new claim (Verified Application): 

. . . after a final settlement discourages the Agency from entering 

into settlements, is contrary to the Requirements of the EAJA, and 

penalizes the Agency. The fee decision should be accorded finality 

and the application should be dismissed. 

The undersigned agrees. The claims for any additional EAJA award for any reason are 

invalid and any issues raised by such claims are moot. See Murphy v. Hunt, 455 U.S. 

478, 481 (1982) (issues presented are no longer live and thus parties lack a legally 

cognizable issue); In re Lybarger, 793 F.2d 136 (6th Cir. 1986) (consent decree upheld to 

waive appellate rights for attorneys’ fees).8

 Even if, for the sake of argument, the prior 

Application and Agreement did not moot issues raised by the Verified Application, the 

Verified Application would be denied. While the undersigned will not revisit many 

arguments made in the Respondent’s supporting memorandum, 9

 the basis of the new 

Verified Application requires comment. In his Supporting Memorandum the Respondent 

refers to the Show Cause Order and states: 

Respondent showed cause and his stipulated application was granted 

on June 16, 2000. On July 6, 2000, Respondent requested the CALJ 

to revise his Order granting attorneys’ fees to delete the portion of the 

 

8 See also Arizonans for Official English v. Arizona, 520 U.S. 43, 45 (1997) (an actual controversy must be 

present at all stages of review); United States v. Munsingwear, Inc. 340 U.S. 36 (1950): Hickman v.

Missouri, 144 F.3d 1141, 1141-43 (8th Cir. 1998): Miami Center Limited Partnership v. Bank of New York, 

838 F.2d 1547 (11th Cir. 1988). 9

 Most of the arguments have been made at least twice before and are either not related to or dispositive of

the EAJA claim, or have been rejected. 

13
discussion that injured Respondent’s reputation as unnecessary to the 

decision approving the fees.10 On July 18, 2000, the CALJ denied 

Respondent’s request. Respondent now submits an Application for 

Attorneys’ fees and Expenses incurred as a result of the CALJ’s Order 

to Show Cause Why the Application for Attorneys’ Fees and Other 

Expenses Pursuant to the Equal Access to Justice Act Should Not be 

Denied (“Show Cause Order”). This memorandum is submitted in 

support of the new application. 

(emphasis supplied) 

While the Respondent’s allegations justifying the new Verified Application are 

far from clear, apparently it is his position that the undersigned’s Show Cause Order gave 

rise to a new EAJA award. The Respondent’s position in that regard is patently 

frivolous. It is predicated on the assertion that: 

Thus, Respondent has prevailed on both the underlying adjudication . . . 

and also the Show Cause Order . . . the action of the Agency in the 

underlying matter and through the CALJ ordering Respondent to 

show cause which required Respondent to incur additional fees and 

expenses was not substantially justified. 

In essence, the Respondent recognizes that the “underlying adjudication” (the 

Coast Guard’s Complaint) as one action, and would have one impute the actions of the 

undersigned (issuing the Show Cause Order) to the Coast Guard, thereby establishing 

 

10 There is nothing in the Show Cause Order that would cause one to logically conclude that it was 

unnecessarily damaging to the Respondent’s reputation. As the Show Cause Order succinctly states:

In reviewing the record for countervailing arguments in support of the proposition

that the Coast Guard’s position was not substantially justified, it became immediately apparent

that it raises more questions than it answers. While the Respondent’s arguments were very ably 

and forcefully presented, they are based on factual allegations, many of which are in dispute. They

raise a multitude of unanswered questions, which may well have been answered had the case gone 

to trial on the merits. The decision dismissing the Complaint forestalled any in depth analysis and

in doing so, it prevented any consideration of facts that may have been helpful in making the 

EAJA determination. 

The Show Cause Order then gave samples of disputed facts related to the question of substantial 

justification.

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another action that gives rise to a second EAJA award. The Respondent has provided no 

authority, and indeed there is none, for the position that the actions of an ALJ or any 

other adjudicative officer in resolving an Application for an EAJA award ought to be 

ascribed to an Agency in determining the issue of substantial justification. Further, it is 

well settled that the position of the Agency in a particular adjudication is what is subject 

to substantial justification. The EAJA does not provide an Applicant the opportunity to 

make successive claims for an EAJA award in piecemeal fashion after each phase of 

litigation. See Commissioner v. Jean, 496 U.S. 154 (1990). So here, the Respondent’s 

attempts to use EAJA as some kind of continuing pool for the payment of attorneys’ fees 

and costs is misguided and invalid. That is especially true where the fees and costs relate 

to repetitious submissions that are more related to the disposition of the original case on 

the merits than any EAJA claim. Consequently, the Verified Application for an 

additional EAJA award is DENIED. 

Once again, assuming that the approval of the original EAJA Application and 

Agreement did not foreclose any additional EAJA claims, or that no new EAJA claims

are allowable that are based on the actions of the ALJ, there is a compelling reason why 

the additional claims for further attorneys’ fees and costs ought to be denied. It is clear 

from the Respondent’s submissions that he continues to misunderstand and misconstrue 

the law and regulations governing the award of attorneys’ fees and other expenses under 

the EAJA. Throughout the approval process of the original Application and Agreement 

and now, in the Verified Application, he continues to create and protract EAJA litigation 

by raising issues not germane to the claim. He continues to manipulate and misstate 

15
information, which the undersigned has repeatedly noted is inaccurate, or is inconsistent 

with the written record, or is of no weight. He complains of delay in the original 

application when in fact much of the delay was caused by his filing of an incomplete 

Application and Agreement. He misstates the facts relating to the May 9, 2000 telephone 

conference and pointedly omits reference to the fact that the parties were told that the 

issue at hand was whether or not the Coast Guard was agreeing it was not substantially

justified. He still argues that the Agency was not substantially justified and that it is 

estopped from arguing otherwise without citing a single case or authority. This in the 

face of a positive drug test and Coast Guard policy requiring revocation. He argues 

inexplicably that the Show Cause Order, served on both parties, shifted the burden of 

proof from the Complainant to the Respondent - - despite the fact that the Application 

and Agreement were non-adversarial and did not involve any burden of proof issue. 

Again, the Respondent cites no authority supporting his allegation. 

Most importantly, Respondent still holds the mistaken belief that the undersigned 

should have pro forma approved his initial Application and Agreement. He reasons that 

because the parties were not in dispute and that because “the Agency’s settlement was 

approved by Coast Guard Headquarters,” that somehow the requirements of the law need 

not be met. The Respondent asserts there is “no requirement 11 that the CALJ must reach 

a conclusion about the position of the Agency in a settlement for EAJA fees.” This 

interpretation of the law suggests that parties can settle their EAJA claims and “stipulate” 

 

11 The “requirement” is contained in the EAJA law itself that clearly provides an EAJA award cannot be

made if the action of the Agency is substantially justified. Where, as here, the record in the case indicates 

the Agency action may have been justified and the Stipulated Agreement is ambiguous, the ALJ not only

has the authority but the duty to ensure that the requirements of the law have been satisfied. 

16
to award attorneys’ fees and other expenses without any regard to the legal standards 

required to award such a claim. Congress and the regulations did not so intend. Further, 

again the Respondent has not provided any citations or authority to support such a 

conclusion. The Respondent’s misguided interpretation of the rules and regulations 

governing the EAJA has been consistent from the outset and it was manifested initially 

when the Respondent sought to “waive” any of the required documentation in support of 

his EAJA claim and simply “stipulate” that his application was correct. 12 The 

Respondent’s characterization that his “straightforward Stipulation Application“ was 

something that “should have been quickly approved” is patently wrong. This is also true 

of the unwarranted and unconscionable remarks that the Respondent makes in a legally 

inexplicable attempt to tie the issuance of the Show Cause Order by the undersigned to an 

Agency action that he considers to be “vexatious” and “manifest bad faith” that “amounts 

to fraud and cannot be condoned.” While certainly, Respondent has the prerogative to 

make such arguments, the statements supporting them are clearly reckless and 

improvident. 

All of the above is noted, not to revisit Respondent’s old arguments, but to note 

that in making the new Verified Application it is clear that the Respondent is attempting 

to further his EAJA claims by raising new issues. They involve a FOIA request to the 

Coast Guard in an apparent effort to discover other facts that might support a claim for 

 

12 The regulations clearly provide that documentation of fees and expenses in an EAJA application shall be 

accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, test 

or similar matter for which an award is sought and the application shall include an affidavit from any

attorney, agent, or expert witness representing or appearing in behalf of the party, stating the actual time

expended and the rate at which fees and other expenses were computed and the application shall state the 

services performed. See 49 C.F.R. § 6.21 (1999) (emphasis added). 

17
additional fees in an EAJA claim when the Respondent has already settled for attorneys’

fees and other expenses. Moreover, as to his request to file supplemental claims, it 

should be noted that the undersigned provided in his Order Denying Respondent’s 

Request to Revise Order Granting Attorneys’ Fees and Expenses Pursuant to the Equal 

Access to Justice Act, “if the parties believe this matter should remain open for further 

hearings on the issues that they believe important and relevant and wish to hold the final 

approval of the EAJA award in abeyance until those issues are considered, they should so 

move.” Neither party so moved. The Respondent in his effort to extend litigation for 

attorneys’ fees and other expenses now appears to have shifted strategy and now argues 

that the Agency “through the device of the Show Cause Order that the CALJ ‘knew to be 

baseless in an effort to coerce the waiver of EAJA fees, [created] a prime example of bad 

faith.’” Because the Respondent now considers “the Agency’s conduct [] at issue,” he 

even seeks a waiver of costs in his FOIA application and charges that if his request is not 

met, he has “no choice” but to “supplement his application for fees and expenses.” The 

continued efforts by the Respondent to protract this matter and create litigation is an 

unnecessary exercise that brings to light the “grim reality feared by the Supreme Court” 

that petitions for attorneys’ fees “’should not result in a second major litigation.’” United 

States v. Eleven Vehicles, 200 F.3d 203, 205 (3rd Cir. 2000) (quoting Hensley v. 

Eckerhart, 461 U.S. 424, 437 (1983)). 

Finally, as has been noted the Respondent has sent the undersigned copies of 

letters relating to a FOIA request made to the Coast Guard and a Petition for Rulemaking 

or Exemption for Attorney Fee Rate In re United States v. John P. Love, Jr., Docket No 

18
99-0187, that was sent to the Office of the General Counsel at D.O.T. While the 

undersigned is not involved in processing the FOIA request he would note that in the 

letter of October 5, 2000, to Admiral Naccara, the Respondent’s discussion of the tests 

done by the Maine State Police, alludes to facts which are not contained in the record of 

the case. Further, the statement by the Respondent’s counsel that “the bad faith is 

material because the CALJ erroneously relied upon this false information to impugn 

Respondent’s reputation” is wrong. The undersigned did not rely on any “false 

information,” erroneously or otherwise. What he did rely on is the agreement of the 

parties to settle an EAJA claim for $10,000 in which agreement the Coast Guard took no 

position as to whether or not it was substantially justified. 

As to the letter seeking Rulemaking or Exemption for Attorney Fee Rate, such 

rulemaking is within the purview of D.O.T. and not the undersigned. However, any 

exemption for fees would not apply in this case in view of the decision denying any 

further EAJA award, other than that agreed to by the parties for $10,000 in the first 

instance. 

As has been noted the Respondent, by letter dated August 31, 2000, requested that 

his Application for a supplemental EAJA award be held in abeyance until after he 

received a response to his Coast Guard FOIA request. The letter is being treated as a 

Motion and the Motion is DENIED. 13

 

13 Throughout the pendency of the original EAJA Application and subsequently in making the 

Supplemental EAJA claim the Respondent has sent correspondence to the undersigned by letter, which 

letters often contain assertions of argumentative facts and conclusions that more properly belong in a 

formal motion, provided for in the pertinent regulations. Also, they often contain facts and conclusions in 

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So here, in summarizing it is held that: 

1. The Respondent’s original Application and Stipulated Agreement for EAJA 

fees of $10,000 was approved with respect to the case brought by the Agency 

and is not entitled to an additional EAJA award. Any subsequent issue and 

claims relating to the award are moot. 

2. At the time the EAJA Application and Stipulated Settlement was approved the 

Respondent knew or should have known of any additional claim for fees that 

he may have had and was given an opportunity to keep the record open. He 

chose not to do so, did not appeal, and in fact demanded payment of the 

$10,000. Consequently, he is bound by the original Application and 

Stipulated Settlement Agreement. 

3. The issuance of the ALJ Show Cause Order or any other action of the ALJ 

cannot be imputed to the Coast Guard for the purposes of showing it was not 

substantially justified in bringing the original action or in making a claim for 

any additional EAJA award from the Agency. 

4. Even if the approval of the original Application and Stipulated Agreement did 

 addition to those submitted in support of a formal motion. Correspondence should not be used for that 

purpose because while it furnishes facts and argument to the adjudicator it often does not allow the other 

party to respond in accordance with the pertinent regulations. 

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not finally dispose of the EAJA claim, the Verified Application and 

Supporting Memorandum do not justify a new or additional award. 

5. The letter of August 31, 2000, wherein the Respondent requested that his 

Application for a supplemental EAJA award be held in abeyance is being 

treated as a formal Motion and is DENIED. 14

JOSEPH N. INGOLIA 

Chief Administrative Law Judge 

United States Coast Guard 

Done and dated this 15th of November, 2000 at 

Baltimore, Maryland 

PLEASE TAKE NOTE that if neither party seeks 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. (2000). A copy of Subpart 

J is attached to this order.

 

14 The Respondent’s letter is unclear as to whether or not he is seeking to supplement the original $10,000 

award or supplement the new Verified Application. In any event the denial of the Motion applies to either 

supplement. 

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[REDACTED] 

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