Clifford v. U.S. Coast Guard

915 F.Supp.2d 299

John A. CLIFFORD, Plaintiffs,

v.UNITED STATES COAST GUARD and United States of America, Defendants.

No. 11–CV–4770 (JFB).

United States District Court, E.D. New York.

Jan. 10, 2013.

John A. Clifford, pro se.

Loretta E. Lynch, United States Attorney, by Thomas A. McFarland, Assistant United States Attorney, Central Islip, NY, for Defendants.

memorandum and order

JOSEPH F. BIANCO, District Judge.

Pro se plaintiff John A. Clifford (“Clifford” or “plaintiff”) commenced this action against the United States Coast Guard (“Coast Guard”) and the United States of America (collectively, “defendants”) pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701–706 (the “APA”), seeking review of the Coast Guard's decision denying him a merchant mariner credential with an officer endorsement as a master.¹ Plaintiff alleges that the Coast Guard's decision to deny him a credential as a master due to his diagnosis of a moderate area of ischemia, because of the Coast Guard's concern that this blood condition could lead to heart attacks, was an abuse of discretion.

Defendants now move for a judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).² Plaintiff opposes that motion and moves for summary judgment. For the reasons set forth below, the Court grants defendants' motion in its entirety, and denies plaintiff's cross-motion for summary judgment.

Specifically, the Court concludes that the Coast Guard's decision with respect to plaintiff's application, rendered pursuant to the statutory authority of 46 U.S.C. § 7101, and in accordance with the guidance provided by 46 C.F.R., Chapter 1, Subchapter B. and NVIC 04–08, is reasonable and should not be disturbed under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). First, the determination, as evidenced in the over 500–page record (containing plaintiff's medical records and other materials) was extremely thorough and involved an individualized assessment of plaintiff's condition. The record indicates that plaintiff submitted the results of three separate maximal myocardial perfusion stress tests and, in all three tests (including two that took place after his heart surgery) there were findings of an abnormal myocardial perfusion and a moderate area of ischemia. The Court Guard, which by regulation must ensure that an applicant for a master credential has no condition that would pose an inordinate risk of sudden incapacitation or debilitating complication, regards ischemia on a stress test to be a risk to maritime and public safety. In addition, when contacted by the reviewing physician from the Coast Guard, plaintiff's treating cardiologist was unable to give the Coast Guard any assurance that plaintiff did not have an increased risk of incapacitation or death due to his ischemia. Based upon a review of the medical information, plaintiff was advised that “[t]he reviewing physician believes that as a result of your known coronary artery disease and moderate ischemia on myocardial perfusion scanning, you have a significant risk of cardiac death or non-fatal heart attack that has the potential to significantly affect your ability to safely operate a vessel.” (Administrative Record, Docket Entry # 15 (“R.”) at 2.) Thus, the Coast Guard's thoroughness is evident in the structured process by which it analyzed plaintiff's medical documentation in light of the relevant data, which even included contacting plaintiff's treating cardiologist. Moreover, there is certainly a rational connection between the evidence submitted to the Coast Guard and the decision that plaintiff's cardiac condition posed an inordinate risk of sudden incapacitation or debilitating complication that could endanger the safety of the public and the maritime environment. In short, there is no basis to disturb the Coast Guard's reasonable determination in this case.

Plaintiff's opposition and cross-motion is primarily devoted to his attempt to show that the Coast Guard ignored medical studies and other information that he believes supports his position. As a threshold matter, plaintiff has failed to establish any grounds in this case—such as bad faith, improper behavior on the part of the agency, or an absence of formal findings—which would allow this Court to consider evidence outside the record. In any event, the Court has reviewed plaintiff's extra-record evidence and concludes that, even if all of his additional evidence is considered, there is still no basis to undermine the persuasiveness of the agency decision under Skidmore. Plaintiff points to no evidence, either individually or collectively, that suggests the determination was unreasonable. Accordingly, defendants are entitled to judgment on the pleadings with respect to plaintiff's challenge under the APA.

I. Background

A. Factual Background

The following facts are drawn from the administrative record submitted by defendants. As a review of the record and plaintiff's complaint demonstrates, plaintiff challenges the defendants' interpretation of the applicable statute and regulations and the adjudication of his application based upon the factual record.

To legally work aboard a United States merchant marine vessel, individuals must receive a merchant mariner credential (“MMC”) from the National Maritime Center (“NMC”), the licensing authority of the United States Coast Guard. See46 C.F.R. §§ 10.209, 10.225. On May 3, 2010, plaintiff applied for an MMC as a master, an ordinary seaman, a steward, and a wiper. (R. at 317–19.) ³

As part of his application, plaintiff submitted his medical history. These documents revealed that plaintiff had a history of coronary artery disease and that he had underwent a coronary artery bypass graft in February 2009. ( Id. at 345–47.) ⁴ Due to this history, the NMC requested that plaintiff supply additional information, including the results from a “maximal myocardial perfusion exercise stress test performed within the last 12 months.” ( Id. at 334.) Later, the NMC clarified that this stress test must reach a level of intensity of Bruce Protocol 8.0 METS to demonstrate that plaintiff could safely operate a vessel as a master. ( Id. at 425.)

Plaintiff submitted two stress test results, one from before his heart surgery, which reached the required levels of intensity but indicated abnormal myocardial perfusion and a moderate area of ischemia in the inferior wall, ( id. at 429), and one from after his surgery, which did not reach the required levels of intensity and also indicated the abnormal myocardial perfusion and ischemia, ( id. at 428).

On July 8, 2010, the NMC denied plaintiff's application due to “fail[ure] to reach the required 8 METS” on the stress test and the presence of “reversible ischemia.” ( Id. at 430.) The NMC stated that ischemia on a stress test “represents a risk to maritime and public safety.” ( Id.) Plaintiff requested reconsideration, stating that he had not eaten before the stress test because he had a blood test that day. ( Id. at 433.) On August 10, 2010, the NMC denied his application for the same reasons, stating that the reconsideration request “does not provide[ ] any new objective evidence to mitigate the risk to maritime and public safety.” ( Id. at 434.) The ruling further stated that individuals must satisfy the required intensity level on a stress test because it is “medically related to the Mariner's ability to safely and adequately perform ordinary and emergency response shipboard functions aboard the vessel” and that the presence of cardiac ischemia “places you at risk for the sudden occurrence of an incapacitating cardiac event, which represents an unacceptable risk to maritime and public safety.” ( Id.)

Plaintiff appealed this decision to the Commandant, CG–54. ( Id. at 438.) Plaintiff provided a new stress test that met the required intensity levels but still showed abnormal myocardial perfusion imaging and a moderate area of ischemia. ( Id. at 439.) Plaintiff also submitted numerous medical studies in an attempt to prove that his condition did not place him at a greater risk of an incapacitating cardiac event, as well as research on the medical evaluator in his case, to demonstrate that the medical evaluator was not qualified to determine the seriousness of plaintiff's heart condition. ( Id. at 278.) Plaintiff's cardiologist also spoke to the Coast Guard Appellate Medical Officer. ( Id. at 85.)

Plaintiff's appeal was denied on April 18, 2011. Specifically, the Coast Guard stated that, while his stress test now reached the required level of intensity, plaintiff still had a moderate area of ischemia. ( Id. at 1.) The decision did state that plaintiff's cardiologist said Clifford had been stable since his 2009 surgery, but that the cardiologist could not “give any assurance that [plaintiff] do[es] not have an increased risk of incapacitation or death due to [his] heart condition.” ( Id.) The Coast Guard determined that plaintiff's condition presented a “significant risk of cardiac death or non-fatal heart attack that has the potential to significantly affect [his] ability to safely operate a vessel.” ( Id. at 2.) The Coast Guard concluded that because the medical record revealed that plaintiff had a substantially increased risk of sudden incapacitation, he was “not suitable for work aboard a vessel in any capacity.” ( Id.) ⁵

B. Procedural History

Plaintiff originally brought this action in the Second Circuit Court of Appeals. Defendants moved to dismiss plaintiff's appeal for lack of jurisdiction. On September 28, 2011, the Second Circuit denied defendants' motion to dismiss the appeal for lack of jurisdiction, but transferred the action to this Court. Plaintiff filed a complaint on January 30, 2012, and defendants answered on April 2, 2012. On June 8, 2012, defendants filed their motion to dismiss and for judgment on the pleadings. Plaintiff filed his opposition to defendants' motion, as well as a cross–motion...