UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

GLEN EDWARD STEWART 

Respondent 

_______________________ 

Docket No: 07-0387 

CG Enforcement Activity No: 3000322 

 

ORDER DENYING RESPONDENTS VERIFIED APPLICATION FOR ATTORNEY 

FEES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT 

Issued: November 18, 2008 

Issued by: HON. BRUCE T. SMITH, Administrative Law Judge 

This matter comes for decision on Glen Edward Stewart’s (Applicant) Verified 

Application dated September 25, 2008 for attorney fees and expenses under the Equal 

Access to Justice Act (EAJA) filed with the ALJ Docketing Center on September 29, 

2008. The Applicant, here, was referred to as the “Respondent” in the Coast Guard 

Suspension and Revocation hearing which gave rise to the instant EAJA claim. For the 

sake of continuity, the name “Applicant” has been substituted for “Respondent” 

throughout this Order. 

The EAJA has two parts: one involves fees awarded through judicial proceedings 

pursuant to 28 U.S.C. § 2412, and the other, at issue here, involves an award of fees by an 
administrative agency pursuant to 5 U.S.C.A. §504(a)(1) (1991). The standards for 

recovery under both statutes are the same and will be outlined below.

Pursuant to 5 U.S.C. 504 and 554, 49 CFR 6.13, 46 CFR 1.01-20, 33 CFR 20.201 

and 20.202, the Chief Administrative Law Judge assigned this matter to the undersigned 

on August 12, 2008.1

Background

This EAJA claim arises following an unsuccessful adverse action brought by the 

Coast Guard against Applicant’s mariners’ credential for his alleged use of illegal drugs. 

At the due-process hearing, the Coast Guard was obliged to prove by a 

preponderance of the evidence that the Applicant used or was addicted to the use of 

dangerous drugs. Toward that end, the Coast Guard offered proof of three essential 

elements in an effort to establish a prima facie case of use or addiction to the use of 

dangerous drugs: 1) that the mariner submitted a urine sample for testing; 2) that the 

sample produced a positive result for illegal drugs and; 3) that the testing was conducted 

in accordance with 49 CFR Part 40. See Appeal Decision 2662 (VOORHEIS) (2007). 

The Coast Guard successfully proved the first two elements: i.e., the Applicant 

submitted a urine sample and that the sample tested positive for marijuana. The Coast 

Guard, however, was unsuccessful in its attempt to prove the third element - that 

Applicant’s urine sample was conducted in accordance with controlling regulatory 

 

1

 Sec. 103 (c) of the Homeland Security Act, Pub. L. No. 107-296, 116, Stat. 2135, 2144, 6 U.S.C. § 113 

(c) transferred the Coast Guard from the Department of Transportation to the Department of Homeland 

Security. The Act’s Savings Provisions at § 1512, 116 Stat. 2135, 2310 , 6 U.S.C. § 552, provide that 

completed administrative actions of an agency [e.g., regulations] shall not be affected by the enactment of 

this Act or the transfer of such agency to the Department but shall continue in effect according to their 

terms until amended, modified, superseded, terminated, set aside, or revoked in accordance with law by an 

officer of the United States or a court of competent jurisdiction, or by operation of law. 

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authority. The undersigned specifically notes that the Coast Guard’s failure in regard to 

the third element was not based on a finding that there was not adequate evidence in 

existence—but, rather, it was based on the failure of the Coast Guard to properly present 

and adequately prove that information’s existence in a legally admissible and relevant 

manner. The Coast Guard simply did not ask the right questions or present the right 

documents at the hearing. This was perhaps a result of the Coast Guard investigating 

officer not being an attorney, as is customary in suspension and revocations proceedings. 

The undersigned specifically found that he Coast Guard did not establish a prima facie

case for use or addiction to the use of dangerous drugs based on a positive urinalysis 

because it did not establish that the drug test was conducted in accordance with 49 CFR 

Part 40. 

While there was some questionable aspects of the underlying test in this case, the 

undersigned did not find that improper proper testing had occurred. Instead the 

undersigned found that the Coast Guard failed to affirmatively prove that proper testing 

had occurred. 

Respondent’s Application

The Applicant’s abbreviated petition for attorneys’ fees and costs correctly points 

out that Applicant was the prevailing party. In support of his claim, the Applicant cites 

no legal authority and only advances the undersigned’s findings that the urine testing was 

not conducted in accordance with 49 CFR Part 40. 

The Coast Guard’s Response

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By contrast, the Coast Guard brief is highly detailed in its recitation of facts 

related to the hearing and controlling legal authority. The Coast Guard brief describes, 

with particularity, that the Applicant’s urine sample tested positive for THC by two 

distinct procedures at Kroll Laboratories. The Coast Guard response also correctly 

highlights the fact that the Applicant’s “split specimen” likewise tested positive for THC 

at a separate testing facility, Elsoholy Labs. 

APPLICABLE LAW

These proceeding are covered by 5 U.S.C. §504 and 554 et seq. and the current 

implementing regulations at 49 CFR Part 6. 

The pertinent part of The Equal Access to Justice Act, (“Act”) Pub. L. 96-481, 94 

Stat. 2325, codified at 5 U.S.C. §504, provides, 

(a)(1) An agency that conducts an adversary 

adjudication shall award, to a prevailing party other than 

the United States, fees and other expenses incurred by that 

party in connection with that proceeding, unless the 

adjudicative officer of the agency finds that the position of 

the agency was substantially justified or that special 

circumstances make an award unjust. Whether or not the 

position of the agency was substantially justified shall be 

determined on the basis of the administrative record, as a 

whole, which is made in the adversary adjudication for 

which fees and other expenses are sought. 

(2) A party seeking an award of fees and other 

expenses shall, within thirty days of a final disposition in 

the adversary adjudication, submit to the agency an 

application which shows that the party is a prevailing party and is 

eligible to receive an award under this section, and the amount sought, 

including an itemized statement 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. The party shall also allege that the position of the 

agency was not substantially justified. When the United States appeals 

the underlying merits of an adversary adjudication, no decision on an 

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application for fees and other expenses in connection with that 

adversary adjudication shall be made under this section 

until a final and unreviewable decision is rendered by the 

court on the appeal or until the underlying merits of the 

case have been finally determined pursuant to the appeal. 

* * * 

5 U.S.C. 504. 

Title 49 CFR 6.5 provides that the “Act” applies to “Coast Guard suspension or 

revocation of licenses, certificates or documents under 46 U.S.C. 7701 et seq” among 

other things. Section 6.7 provides, in pertinent part, that the applicant must be a party

(emphasis added) to an adversary adjudication for which it seeks an award and that the 

applicant meets all conditions of eligibility set out in the regulations. 

Title 49 CFR 6.9 provides, in pertinent 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 (emphasis added) 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 ‘position of the Department’ means, in addition to the 

position taken by the agency in the adversary adjudication, 

the action or failure to act by the Department upon which 

the adversary adjudication may be based. 

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Subpart B of Title 49 CFR Part 6 – Information Required from Applicants, lists 

the requirements for filing an application: a showing that the applicant has prevailed

(emphasis added) and identifying the position of an agency that the applicant alleges was 

not substantially justified; a statement of the applicant’s net worth; the amount of fees 

and expenses for which the award is sought; a written verification under oath that the 

information provided is true and correct; a net worth exhibit; and documentation of fees 

and expenses. 

Subpart C of Title 49 CFR Part 6 – Procedures for Considering Applications, lists 

the requirements for filing and service which the Applicant has followed. It also provides 

that within 30 calendar days after service of an application, the agency counsel may file 

an answer to the application or a request for an extension of time to file answer. Failure 

to file an answer within the 30 day period may be treated as consent to the award request. 

The Coast Guard Investigating Officer filed a timely Answer. The remainder of the 

subpart provides that the parties may settle, and, if appropriate, additional proceedings 

may be held. 

Finally, the regulations at 49 CFR 6.33 provide that the Administrative Law Judge 

shall issue an initial decision containing findings, if at issue, on whether the Department’s 

position was substantially justified, whether the applicant unduly protracted the 

proceedings, or whether special circumstances make and award unjust. (Emphasis 

added). Either party may seek review of the decision or the Department may decide to 

review the decision on its own initiative. Otherwise, the initial decision becomes final 30 

days after it is issued. 

Findings of Fact

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1. As a respondent in a Coast Guard suspension and revocation proceeding 

conducted under 46 U.S.C 7701 et seq., Applicant Glen Stuart was a “prevailing 

party” within the meaning of 5 U.S.C. 504(b)(1)(B) and 49 CFR 6.7. 

2. On March 20, 2008, the hearing commenced as scheduled in New Orleans, LA. 

Both parties appeared and presented their respective cases. Three (3) witnesses 

testified as part of the Coast Guard’s case-in-chief. The Coast Guard offered 

seven (7) Exhibits into evidence, all of which were admitted. 

3. Likewise, Applicant testified on his own behalf and called one (1) other witness 

to testify. Applicant offered eight (8) exhibits, all of which were admitted into 

evidence. 

4. At the conclusion of the hearing, the parties each filed post-hearing briefs. 

5. On July 3, 3008, the undersigned published a Decision and Order finding that 

the Coast Guard had failed to prove the allegations of drug use against the 

Applicant. Hence, the Applicant was the prevailing party in that proceeding. 

6. On Aug 1, 2008, Applicant timely filed an incomplete, handwritten EAJA claim 

which, inter alia, did not contain all of the requisite elements of a proper EAJA 

claim. The Coast Guard did not respond. 

7. On September 10, 2008 the undersigned conducted a telephone conference 

between the pro se Applicant and Coast Guard, wherein the undersigned gave 

Applicant 30 days to submit a complete and proper EAJA application. 

8. On September 29, 2008 Applicant, through counsel Danatus King, submitted a 

full, complete and verified EAJA application. 

9. On October 27, 2008 the Coast Guard filed its response to Applicant’s EAJA 

claim. 

10. Applicant’s filing was timely. 

11. The Coast Guard was substantially justified in bringing the adverse action 

against Applicant’s mariner’s credentials per 49 CFR §6.9(a); specifically in 

light of Applicant’s positive urinalysis which revealed the presence of a 

dangerous drug in his urine specimen. 

12. The Coast Guard’s adverse action against Applicant’s mariner’s credentials 

failed because the Coast Guard could not prove by a preponderance of the 

evidence that the urine testing was performed in accordance with the technical 

requirements of 46 CFR Part 16 and, thus 49 CFR Part 40.

13. There were no facts adduced to suggest that the Applicant unduly protracted the 

proceedings nor were there any facts adduced suggesting that any special 

circumstances were present. 

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Discussion

Timeliness of Applicant’s EAJA Claim. I allowed the Applicant to file an 

amended EAJA claim clearly outside of the 30-day time period prescribed for EAJA 

applications. Although his initial application was filed timely, it was incomplete in that it 

lacked information required by the applicable regulations. In allowing Applicant to 

supplement and amend his EAJA claim, I took guidance from Becker v. Montgomery,

Attorney General of Ohio, et al, 532 US 757 (2001), where the Court said that a pro se 

litigant’s failure to follow the exacting standards of a filing statute was not fatal to his 

application or appeal. This is especially true in the case of an EAJA claim wherein the 

EAJA statute was clearly written for, and directed toward, attorneys. Scarborough v. 

Principi, Secretary of Veterans Affairs, 541 US 401 (2004). 

Substantial justification. The application for an award of attorney fees and costs 

under EAJA is also subject to denial because the government’s position was 

“substantially justified.” Title 49 CFR 6.9(a) provides that “[a]n 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.” 

The standard for "substantial justification," within the meaning of EAJA, is 

simply one of reasonableness. To avoid award of fees, the proceeding must have a 

reasonable basis in law and fact. It is necessary to examine both the state of the law and 

the facts in the record to determine whether there was substantial justification for the 

agency’s position. Frey v. Commodity Futures Trading Commission, 931 F.2d 1171, 

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1174 (7th Cir. 1991), rehearing and rehearing en banc denied. (Commodity Futures 

Trading Commission's enforcement proceeding against commodities broker for price 

manipulation had reasonable basis in law and fact and, thus, broker was not entitled to 

attorney fees under EAJA for fees incurred in successfully defending himself). 

At the administrative level, the burden is on administrative agency to prove that 

an attorney fee award should not be made under EAJA. Charger Management, Inc. v. 

N.L.R.B., 768 F.2d 1299, 1301 (11th Cir. 1985). For instance, in Bruch v. United States 

Coast Guard, an application for an award of attorney fees and costs under EAJA was 

denied even though the docking masters in the underlying action successfully defended 

against misconduct citations for allegedly docking boats without the requisite license. 

749 F.Supp. 688 (E.D.Pa.1990). On appeal, the critical question for the district court 

judge was whether the Coast Guard's position - the stance it took in the administrative 

hearing, its basic rationale for the issuance of the citations - was “substantially justified.” 

Id. at 693. The district court held that the test is not whether the Coast Guard's position 

was ultimately correct but only whether a reasonable person could countenance the Coast 

Guard's position in the particular context of the dispute. Id

In holding that the Coast Guard’s position was substantially justified, the district 

judge relied on Pierce v. Underwood, 487 U.S. 552 (1988). In Pierce, Justice Scalia, 

writing for the majority, stated that the phrase “substantially justified” does not mean 

“justified to a high degree,” but rather “justified in substance or in the main-that is, 

justified to a degree that could satisfy a reasonable person.” Bruch , 749 F.Supp. at 694 

(citing Pierce, 487 U.S. at 556). Justice Scalia noted that “a position can be justified even 

though it is not correct, and we believe it can be substantially (i.e., for the most part) 

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justified if a reasonable person could think it correct; that is, if it has a reasonable basis in 

law and fact.” Id. (citing Pierce, 487 U.S. at 566 n. 2; see also Russell v. Heckler, 866 

F.2d 638 (3d Cir.1989)). 

Finally, in INS v. Jean, 496 US 154 (1990), the Court provided guidance that a 

determination of “substantial justification” rests on whether the government made a good 

faith effort to analyze the issues as they were known at the time or whether the 

government unreasonably forced litigation without justification. Id at 159, fn. 7. 

Applying the facts to the law

A review of the entire administrative record, here, shows that the Coast Guard had 

a reasonable basis in both law and fact to initiate these proceedings. 

Basis in law. To promote safety at sea, 46 U.S.C. §§7701 et seq. provides the 

legal authority for the Coast Guard to initiate suspension and revocation proceedings. 

Section 7703 provides that licenses, certificates of registry, or merchant mariner’s 

documents may be suspended or revoked for “misconduct” and “negligence,” among 

other things. Title 46 CFR sections 5.29 and 5.33 define negligence and misconduct 

respectively. Suspension and Revocation proceedings are remedial and not penal in 

nature and are “intended to help maintain the standards of competence and conduct 

essential to the promotion of safety at sea.” 46 CFR §5.5. The Commandant delegated to 

Administrative Law Judges the authority to suspend or revoke a license, certificate, or 

merchant mariner’s document for violations arising under 46 U.S.C. §§7703 and 7704. 

See 46 CFR §5.19. Here, the Coast Guard charged Respondent under 46 U.S.C. § 

7704(a) and 46 CFR §5.35 alleging his use of dangerous drugs. Thus, the Coast Guard 

sought revocation of Applicant’s merchant mariner’s credentials. 

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The allegations of illegal drug use described above in the Complaint and the 

Amended Complaint conformed to the requirements of 46 U.S.C § 7703 and 46 CFR 

§§5.29 and 5.33. Therefore, I find that the Coast Guard had a reasonable basis in law to 

initiate the underlying proceedings. 

Basis in Fact. In the instant case, the Coast Guard sought revocation of 

Applicant’s mariner’s credentials because he failed a Department of Transportationmandated urine test for the presence of dangerous drugs. The facts revealed that he tested 

“positive” for the presence of THC-the psycho-active ingredient in marijuana. 

After the hearing, the undersigned made the following salient findings of fact: 

1. Applicant holds a Coast Guard-issued merchant mariner’s license number 

1095579 and a Coast Guard-issued merchant mariner’s document. 

2. The Applicant provided a urine sample to Pelican State on or about June 29 2007. 

3. The Applicant’s urine sample tested positive for a dangerous drug, i.e., marijuana. 

4. The Coast Guard did not establish that Applicant was tested in accordance with 

Part 40. 

5. The Coast Guard did not establish a prima facie case for use or addiction to the 

use of dangerous drugs based on a positive urinalysis because it did not establish 

that the drug test was conducted in accordance with 49 CFR Part 40. 

It is noteworthy that in a Suspension and Revocation action based upon an 

allegation of illegal drug use, the Coast Guard must prove three essential elements in 

order to establish a prima facie case of illegal drug use: 1) that the mariner submitted a 

urine sample for testing; 2) that the sample produced a positive result for illegal drugs 

and; 3) that the testing was conducted in accordance with 49 CFR Part 40. See Appeal 

Decision 2662 (VOORHEIS) (2007). 

Of the three elements, the most salient for the present purpose was the finding that 

the Applicant tested positive for the presence if illegal drugs in his urine. The Coast 

11
Guard was not only substantially justified, but was actually duty-bound to proceed 

against his credentials in light of the test results which eventually led to this finding. 

The Coast Guard subsequently failing to prove the third element, i.e., that the 

testing was conducted in accord with49 CFR Part 40, speaks more to the exigencies of 

courtroom proof than it does to the propriety of proceeding, ab initio. It is important to 

note that determining the weight of the evidence and making credibility determinations as 

to the evidence is within the sole purview of the Administrative Law Judge. See Appeal 

Decision 2640 (PASSARO) (2003). Also, the Administrative Law Judge is vested with 

broad discretion in resolving inconsistencies in the evidence, and findings do not need to 

be consistent with all of the evidence in the record as long as there is sufficient evidence 

to reasonably justify the findings reached. Appeal Decision 2639 (HAUCK) (2003). 

These are the functions of the Administrative Law Judge and whether the 

undersigned believed or disbelieved a given witness in a hearing—or whether the Coast 

Guard failed to adequately present evidence to establish facts necessary to prove one 

element of a drug case by a preponderance of the evidence--is not dispositive on the issue 

of whether the Coast Guard had a good-faith justification for proceeding against the 

Applicant’s credentials. 

As previously discussed, the Coast Guard had not just a good-faith justification, 

but an actual duty to bring this proceeding because of the positive drug test results at 

issue in this case. The Coast Guard was therefore substantially justified in bringing the 

adverse action against Applicant’s mariner’s credentials per 49 CFR §6.9(a); specifically 

in light of Applicant’s two positive urinalysis tests which revealed the presence of an 

illegal drug in his urine specimen. 

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WHEREFORE, 

ORDER

 IT IS HEREBY ORDERED that having found the Coast Guard’s position was 

“substantially justified” in law and fact, the Applicant’s fee application is DENIED. 

 

Done and dated this ___ day of November 2008 at 

New Orleans, LA 

_________________________ 

HON. BRUCE T. SMITH 

Administrative Law Judge 

United States Coast Guard 

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