UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TONY J. REID, et al., : : Plaintiffs, : Civil Action No.: 24-2186 (RC) : v. : Re Document No.: 12 : ALEJANDRO N. MAYORKAS, : Secretary of the Department of Homeland : Security, et al., : : Defendants. :

MEMORANDUM OPINION

DENYING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY

INJUNCTION

I. INTRODUCTION

Federal law codified at

instructs the United States Coast Guard to deny

merchant mariner licenses and credentials to individuals convicted of certain sex offenses.

Plaintiffs sued the Department of Homeland Security and the Coast Guard, claiming that the

Coast Guard incorrectly applied this provision to their requests to renew their Merchant Mariner

Credentials (“MMCs”) in violation of the Administrative Procedure Act (“APA”), the Merchant

Marine Act of 1936, and the Fifth Amendment Due Process Clause. Plaintiffs move for a

temporary restraining order and preliminary injunction suspending this practice. The Court

denies Plaintiffs’ motion because they do not demonstrate a likelihood of success, and the public

interest weighs against injunctive relief. II. BACKGROUND

A. Statutory Background

“To legally work aboard a United States merchant marine vessel, individuals must

receive [an MMC] from the National Maritime Center (‘NMC’), the licensing authority of the

United States Coast Guard.” Clifford v. U.S. Coast Guard,

(E.D.N.Y.

2013) (citing

, 10.225). Federal law provides for the issuance of licenses,

certificates, and documents to merchant seamen, see

(c), establishes general

requirements for issuance of those documents, see

§ 7101(e), and defines associated

procedures, see id. §§ 7501–11. A license “is valid for a 5-year period and may be renewed for

additional 5-year periods.” Id. § 7106(a); see also

(a) (“An MMC is valid for

a term of 5 years from the date of issuance.”). An MMC “is a credential combining the elements

of the merchant mariner’s document (MMD), merchant mariner’s license (license), and

certificate of registry (COR),” as well as international training and certification standards.

(a).

In response to reports of sexual assault and sexual harassment within the U.S. Merchant

Marine Academy, Congress recognized “the need for systemic maritime industry mechanisms

for reporting and investigating claims of sexual assault and sexual harassment, as well as

mechanisms for punishing offenders.” H.R. Rep. No. 117-282, at 43 (2022). Among other

changes, H.R. 6865, 117th Cong. (2022), proposed provisions to “ban[ ] individuals convicted of

sexual assault from receiving a merchant mariner credential and revoke[ ] the credentials of those

convicted of sexual assault in the previous ten years.” H.R. Rep. No. 117-282, at 43. Congress

soon enacted these measures in the James M. Inhofe National Defense Authorization Act for

2 Fiscal Year 2023 (“NDAA”). See §§ 11601–11,

Stat. 2395, 4145–56

(2022). Two of those provisions are relevant here.

First, Congress barred the Coast Guard from issuing credentials—including MMCs—to

individuals convicted of certain sex offenses. “A license, certificate of registry, or merchant

mariner’s document authorized to be issued under this part shall be denied to an individual who

has been convicted of a sexual offense prohibited under” either “chapter 109A of title 18” or “a

substantially similar offense under State, local, or Tribal law.”

§ 11602 (codified at

). Chapter 109A of Title 18 comprises provisions criminalizing sexual abuse, see

; aggravated sexual abuse, see

§ 2241; sexual abuse of a minor, a ward, or an

individual in Federal custody, see id. § 2243; and abusive sexual contact, see id. § 2244. 1

Second, Congress provided a process for revocation of credentials when an individual is

the subject of an “official finding” of sexual harassment or sexual assault. See NDAA § 11603

(codified at 46 U.S.C. § 7704a). An “official finding” includes “a legal proceeding or agency

finding or decision that determines the individual committed sexual harassment or sexual assault

in violation of any Federal, State, local, or Tribal law or regulation.” 46 U.S.C.

§ 7704a(c)(1)(A). It also includes a finding by the Coast Guard following an investigation. See

id. § 7704(c)(1)(B). If it is shown at a hearing that an individual is the subject of an official

finding of sexual harassment within the previous five years, the individual’s credentials “may be

suspended or revoked.” Id. § 7704(a). Where the finding includes sexual assault and occurred

within the past 10 years, the individual’s credentials “shall be revoked.” Id. § 7704(b).

1 The mandatory bar found in § 7511 does not apply to individuals convicted of abusive sexual contact under

(b) or a substantially similar offense under State, local, or Tribal law. See

(b). Instead, a license, certificate of registry, or merchant mariner’s document “may” be denied when that conviction occurred “within 5 years before applying for the license.”

3 B. Factual Background

On May 23, 2023, the Coast Guard issued Policy Letter No. 03-23 (“Policy Letter”) to

the National Maritime Center to “provide[ ] guidance on safety and suitability determinations for

applicants for [MMCs] with convictions for sexual assault.” Ex. 1 to Pls.’ Mot. for TRO and

Prelim. Inj. at 1 (“Pls.’ Mot.”), ECF No. 12. The letter explains that “[t]he Coast Guard will use

this policy when evaluating applications for a MMC,”

, and provides the Coast Guard’s

interpretation of § 7511, see id. at 36–37. 2 The policy letter explains that it “is not a substitute

for applicable legal requirements, nor is it itself a regulation.” Id. at 37. The letter states the

“guidance represents the Coast Guard’s current thinking on this topic” and is intended to assist

“in applying statutory and regulatory requirements.” Id.

Plaintiffs are three merchant mariners whose MMC renewal applications were denied due

to prior sexual assault convictions. Plaintiff Tony J. Reid was first issued an MMC in 2018. See

Reid Decl. at 50, ECF No. 12. In 2023, the Coast Guard denied his application to renew his

MMC, citing § 7511(a) and a “1996 Washington state conviction for the rape of a child.” Ex. 2

to Pls.’ Mot. at 40, ECF No. 12. The Coast Guard explained that “[t]he law prevents issuance of

an MMC to individuals with certain sexual offense convictions.” Id. Plaintiff Brandon A.

Phillips received an MMC in 2014 and applied for a renewal in 2024. Phillips Decl. at 52, ECF

No. 12. The Coast Guard denied that application “due to his 1999 conviction for Aggravated

Criminal Sexual Assault in Illinois.” Ex. 2 to Pls.’ Mot. at 42. Plaintiff Charlie Boagni Jr. was

issued an MMC in 2003. Boagni Decl. at 54, ECF No. 12. The Coast Guard denied his renewal

application in 2023 based on a 1992 conviction for “Carnal Knowledge of a Juvenile,” Ex. 2 to

2 Because Plaintiffs included their exhibits in a single document, and those exhibits contain their own page numbers, the Court refers to the ECF-generated page numbers rather than the page numbers on individual documents contained in ECF No. 12.

4 Pls.’ Mot. at 44, which he describes as “consensual sex with a seventeen-year-old female

acquaintance when [he] was nineteen years old,” Boagni Decl. at 54.

Plaintiffs filed this lawsuit on July 24, 2024, see Compl., ECF No. 1, and filed an

Amended Complaint on October 28, 2024, see Am. Compl., ECF No. 11-1. Count One claims

that the Policy Letter represents a legislative rule that does not comply with the APA’s notice

and comment procedures. See Am. Compl. ¶¶ 119–25. Count Two asserts that application of

§ 7511 to MMC renewal applications is not in accordance with law in violation of the APA. See

Am. Compl. ¶¶ 126–32. Count Three alleges that the Policy Letter is arbitrary and capricious

because it fails to align with similar provisions applicable to members of the armed services and

civil servants. See Am. Compl. ¶¶ 133–35. Finally, Counts Four and Five claim that the

merchant mariners have a property interest in their MMCs, as well as liberty interests in their

reputations and professions, and that the Coast Guard’s denials deprived them of these interests

in violation of the Fifth Amendment Due Process Clause. See Am. Compl. ¶¶ 136–147.

On November 12, 2024, Plaintiffs moved for a temporary restraining order and

preliminary injunction barring application of § 7511 to MMC renewal applications. See Pls.’

Mot. Defendants opposed the motion, see Defs.’ Opp’n to Pls.’ Mot. for TRO and Prelim. Inj.

(“Defs.’ Opp’n”), ECF No. 15, and the Court held a motion hearing on November 21, 2024.

III. LEGAL STANDARD

“A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a

clear showing that the [movant] is entitled to such relief.’” John Doe Co. v. Consumer Fin. Prot.

Bureau,

(D.C. Cir. 2017) (quoting Winter v. Natural Res. Def. Council,

Inc.,

(2008)). “A plaintiff seeking a preliminary injunction must establish [1] that

he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence

5 of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is

in the public interest.” Winter,

. “The last two factors ‘merge when the

Government is the opposing party.’” Guedes v. Bureau of Alcohol, Tobacco, Firearms &

Explosives,

(D.C. Cir. 2019) (quoting Nken v. Holder,

(2009)).

“Of course, the movant carries the burden of persua[ding]” the Court that these factors merit

preliminary relief, Fla. EB5 Invs., LLC v. Wolf,

, 11 (D.D.C. 2020) (citing

Cobell v. Norton,

(D.C. Cir. 2004)), and must do so by making a “clear

showing,” Cobell,

. A district court must generally consider and balance each of

these factors in deciding whether to issue a preliminary injunction. See Sherley v. Sebelius,

, 392–93 (D.C. Cir. 2011). Where a plaintiff shows “no likelihood of success on the

merits,” however, the Court need not “proceed to review the other three preliminary injunction

factors.” Guedes,

(quoting Arkansas Dairy Coop. Ass’n v. United States Dep’t of

Agric.,

(D.C. Cir. 2009)). “A preliminary injunction may be granted based on

less formal procedures and on less extensive evidence than in a trial on the merits.” Cobell,

. “An application for a TRO is analyzed using the same factors applicable to a

request for preliminary injunctive relief.” Scottsdale Cap. Advisors Corp. v. Fin. Indus. Regul.

Auth., Inc.,

, 99 (D.D.C. 2023) (citing Gordon v. Holder,

, 723–

24 (D.C. Cir. 2011)).

IV. ANALYSIS

To show entitlement to a temporary restraining order or preliminary injunction, Plaintiffs

must meet the four requirements outlined above. Plaintiffs’ motion boils the merits inquiry

down to two assertions. The first is that § 7511 only applies to what they style as “original-

MMCs,” and not to “renewal-MMCs.” See Pls.’ Mot. at 14–20. The second is that denial of a

6 renewed MMC infringes on a property interest in violation of the Due Process Clause of the Fifth

Amendment. 3 See id. at 16, 19–20. The Court concludes that these arguments are not likely to

succeed on the merits and that the public interest weighs against an injunction. Plaintiffs’ claims

to irreparable injury weigh only marginally in favor of an injunction. 4

A. Likelihood of Success on the Merits

1. Application of

to MMC Renewals

In support of their motion for a preliminary injunction, Plaintiffs assert that § 7511

applies only to mariners’ original applications for MMCs, and not requests to renew those

credentials. See Pls.’ Mot. at 14–15. Because this is so, Plaintiffs continue, the Policy Letter

misapplies the statute to renewal MMCs—or at least represents a legislative rule that unlawfully

avoided the APA’s notice and comment procedures. See id. at 15–18. Defendants respond that

§ 7511 prohibits the Coast Guard from renewing Plaintiffs’ MMCs, see Defs.’ Opp’n at 7–10,

and that its obligations flow from the statute and not the policy letter, see id. at 11–12. The

Court agrees with Defendants that § 7511 applies to any issuance of a license, including renewal

of an MMC.

Recall that the relevant statute requires denial of any credential that is “to be issued” to a

mariner convicted of certain offenses.

(a). Plaintiffs do not dispute that they

were convicted of sex offenses included within paragraphs one and two of § 7511(a). See

3 Although Plaintiffs discuss liberty interests in their Amended Complaint, see Am. Compl. ¶¶ 142–47, they do not address those interests in their motion and reference them only in passing in reply, see Pls.’ Reply at 3–5. 4 Defendants assert that Plaintiff Brandon Phillips sought reconsideration following denial of his initial renewal application, see Defs.’ Opp’n at 5, and that he has not exhausted his remedies before the agency because this request for reconsideration remains pending, see id. at 7. The Court excuses this failure to exhaust here because, based on the record currently before the Court, it appears certain that the Coast Guard will not reach a different conclusion. See Boivin v. U.S. Airways, Inc.,

(D.C. Cir. 2006).

7 generally Pls.’ Mot. They must instead contend that a renewed MMC is not a “license . . . to be

issued” under Title 46, Subtitle II, Part E.

(a). Yet the Coast Guard does

“issue” a renewed MMC when it grants the renewal. See Issue, II.9.a., Oxford English

Dictionary (2024) (“To give or send (something) out, esp. authoritatively or officially.”).

Congress recognized this when it used the word “issued” in the subsection setting the timeframe

during which a license could be renewed.

(b). So too did Congress express

that a renewed license represents an entirely new credential and not merely an extension of the

original license. See

(stating that a renewed license is not effective until “the previously

issued license expires”). Because a renewed MMC is a separate license, it must be “issued” by

the Coast Guard. Finally, it is apparent that the Coast Guard must take action to issue a renewed

MMC because doing so is discretionary, as evidenced by the instruction that licenses “may be

renewed.”

§ 7106(a) (emphasis added); see also

(establishing

requirements for renewal). Renewal thus does not occur automatically or as operation of law.

For these reasons, the Court concludes that, under a natural reading of § 7511, renewed licenses

are credentials “to be issued” under the statute.

(a). The Coast Guard was

therefore required to deny the renewed MMCs to Plaintiffs as a result of their convictions. See

(mandating that a license “shall be denied” (emphasis added)).

Plaintiffs’ remaining claims and arguments fail to convince the Court that the Coast

Guard acted unlawfully by denying their MMC renewals. Plaintiffs argue, for instance, that

Congress intended 46 U.S.C. § 7704a to set “the retroactive limit for sex offense convictions . . .

to be applied to merchant mariners.” Pls.’ Mot. at 14. Yet that statute provides a process for

revocation of active merchant mariner credentials based on not only conviction, but also any

legal proceeding, agency finding, or Coast Guard investigation “that determines the individual

8 committed sexual harassment or sexual assault.” 46 U.S.C. § 7704a(c)(1)(A). The provision is

fundamentally different from § 7511 because it provides for a hearing, covers a broader range of

factual findings, carries a temporal limitation, and relates to suspension or revocation of active

credentials. See generally id. § 7704a. Section 7511 is instead operative when a merchant

mariner with a relevant conviction seeks to renew a credential that is set to expire. There is no

indication that Congress intended the five- and ten-year temporal limitations found in § 7704a to

apply to § 7511, which is an entirely separate provision serving a distinct purpose. 5

Plaintiffs additionally argue in their motion that the Policy Letter is a legislative rule that

the Coast Guard uses to evade the procedural protections found in § 7704a. Pls.’ Mot. at 17.

Plaintiffs’ counsel conceded at the motion hearing that the Coast Guard’s legal obligations flow

from § 7511 and not the Policy Letter. Even in the absence of that concession, Plaintiffs’

position would remain untenable. First, the record demonstrates that the Coast Guard relied on

§ 7511—and not any purported rule found in the Policy Letter—when it denied each Plaintiff’s

request to renew his MMC. See Ex. 2 at 40, 42, 44. Plaintiffs appear to recognize this in their

briefing by stating that they “seek relief from the application of Letter 03-23, and therefore

.” Pls.’ Mot. at 21. Even if the Coast Guard had relied on the policy letter to make

its decision, the policy letter does not itself represent a legislative rule. “Legislative rules have

the ‘force and effect of law’ and may be promulgated only after public notice and comment.”

Nat’l Min. Ass’n v. McCarthy,

(D.C. Cir. 2014) (quoting INS v. Chadha,

, 986 n.19 (1983)). Yet the policy letter lacks any force and effect of law on its own,

5 Plaintiffs argue that § 7511 is modeled after

, “which only applies to the original enlistment of an individual into an armed service.” Pls.’ Mot. at 14. Plaintiffs cite no authority for these assertions, do not grapple with the significant textual differences between the two provisions, and do not account for the distinct requirement found in § 7106 for merchant mariners to renew their licenses every five years.

9 both disclaiming its capacity to “impose legally binding requirements on any party,” see Policy

Letter at 37, and relying entirely on the text and requirements imposed by § 7511 rather than any

independent rulemaking authority, see generally id. The letter is therefore at most an interpretive

rule “issued by [the Coast Guard] to advise the public of the agency’s construction of the statutes

and rules which it administers.” Perez v. Mortg. Bankers Ass’n,

(2015) (quoting

Shalala v. Guernsey Memorial Hospital,

(1995)); see also Policy Letter at 37

(asserting that “[t]his guidance represents the Coast Guard’s current thinking on this topic and

may assist industry, mariners, the general public, and the Coast Guard . . . in applying statutory

and regulatory requirements.”);

(b)(A) (exempting “interpretative rules” from

notice and comment rulemaking). As such, the Policy Letter “do[es] not have the force and

effect of law.” Perez, 757 U.S. at 97 (quoting Shalala,

).

Plaintiffs also claim that denial of their MMCs is unlawful because it is “retroactive” in

nature. See Pls.’ Mot. at 14. According to Plaintiffs, “[c]urrently serving merchant mariners can

only be subject to federal rules that have a future effect, unless Congress enacts such rule that is

expressly retroactive, as it did for a suspension or revocation based on a sex offense conviction.”

(citing

(4)). Plaintiffs cite the APA provision defining a “rule,” in part, as “an

agency statement of general or particular applicability and future effect.”

(4)

(emphasis added). Once again, however, the Coast Guard’s legal obligation to deny Plaintiffs’

renewal MMCs flows not from an agency rule, but from Congress’s instructions in § 7511.

Congress plainly intended the statute to consider prior conduct given its concern with past sex

offense convictions. To the extent that this has some retroactive effect, the statute contains

“clear congressional intent favoring such a result.” Landgraf v. USI Film Prod.,

,

10 280 (1994). In denying Plaintiffs’ renewal MMCs, the Coast Guard simply followed Congress’s

directions.

2. Due Process Interests in MMCs

Plaintiffs also contend the Coast Guard’s refusal to renew their MMCs deprives them of a

property interest without due process of law. See Pls.’ Mot. at 13, 16, 19–20. Defendants

respond that Plaintiffs lack a property interest in an MMC that has yet to be issued, see Defs.’

Opp’n at 16, and that Plaintiffs do not show that they received insufficient process, id. at 17. The

Court determines that Plaintiffs do not establish a likelihood that they have a property interest in

renewal of their MMCs, or that they received insufficient process.

“To prevail on a constitutional due process claim, a plaintiff first must show the existence

of an interest protected by the Due Process Clause, and then must establish the government’s

failure to provide her with the process that she was due.” Yancey v. Dist. Columbia,

(D.D.C. 2013). “Because the Constitution protects rather than creates

property interests, the existence of a property interest is determined by reference to ‘existing

rules or understandings that stem from an independent source’” such as state or federal law.

Ralls Corp. v. Comm. on Foreign Inv. in U.S.,

(D.C. Cir. 2014) (quoting

Phillips v. Wash. Legal Found.,

(1998)). “[A] benefit is not a protected

entitlement if government officials may grant or deny it in their discretion.” Town of Castle

Rock v. Gonzales,

(2005); see also Crooks v. Mabus,

(D.C.

Cir. 2016) (explaining that “an individual has no ‘cognizable property interest’ in the renewal of

a license or certification where” the agency has discretion to deny it).

Mariners generally lack a property interest in renewal of their MMCs because the Coast

Guard has discretion to grant or deny those renewals. As discussed above, the Coast Guard

11 “may” renew licenses for an additional period of five years, but there is no requirement that the

agency do so.

(a). Nor do agency regulations establishing requirements for

renewal state that the agency must renew a license. See

; see also Clifford,

915 F. Supp. at 313 (“Plaintiff does not have a protected entitlement to an MMC because the

statute and regulations grant the agency the discretion to issue or deny licenses.”); Menkes v.

U.S. Dep’t of Homeland Sec.,

(D.C. Cir. 2011) (holding that an individual

lacked a property interest in his appointment as an unaffiliated, independent pilot because the

relevant regulation grants the Coast Guard discretion over his appointment). Yet Plaintiffs’

claim to a property interest is even more tenuous here, as federal law required the Coast Guard to

deny their renewal applications. The statute instructs that their credentials “shall be denied”

based on their convictions.

(a). Plaintiffs cannot have a property interest in a

credential the Coast Guard is prohibited from issuing to them.

Plaintiffs again elide the difference between revocation of an MMC and nonrenewal of

the credential at the end of its validity. See

(a) (providing that a license is valid

for five years). Plaintiffs claim that

(d)(1)(B) provides a property interest in an

MMC. Pls.’ Mot. at 20. Yet that provision applies to “suspending or revoking” a credential,

(a), not the decision to deny an application for renewal. Plaintiffs additionally cite

In re Merch. Mariners Documents Issued to Dimitratos,

(N.D. Cal. 1949), for

the notion that due process protections apply to MMCs. See Pls.’ Mot. at 19–20. But that case

again considered suspension of credentials possessed by mariners “against whom charges are

pending and undetermined,” see Dimitratos,

, not the Coast Guard’s decision

whether to renew an expiring credential. Furthermore, the court there held that the mariners

were “entitled to due process before their licenses are cancelled” because federal law required

12 the Coast Guard to hold a hearing prior to suspension.

. Neither § 7106 nor § 7511

mandates such process. Plaintiffs further cite Jory v. United States,

(11th Cir.

2014), when arguing that “Congress has provided specific administrative and judicial review

procedures for the suspension and revocation of MMCs, which must be followed.” Pls.’ Mot. at

13. That case involved a mariner’s lawsuit arising from “the U.S. Coast Guard’s revocation of

his merchant mariner credentials.” Jory,

. The Eleventh Circuit affirmed

dismissal of the action because the mariner had failed to exhaust his administrative remedies

provided in

.

. Again, both that case and the relevant statutory

provision relate to revocation of active credentials rather than the nonrenewal of expiring

credentials. See

(b) (“Licenses, certificates of registry, and merchant mariners’

documents may be suspended or revoked for acts described in section 7703 of this title.”).

Finally, even assuming that Plaintiffs have a property interest in renewal of their MMCs,

they do not establish that the process they received was constitutionally deficient. See Pls.’

Reply at 4–5. To show a procedural due process violation under the Fifth Amendment, a

plaintiff must establish not only a protected interest, but also that he was deprived of that interest

without the process that is due. See Wilkinson v. Austin,

(2005) (discussing

Mathews v. Eldridge,

(1976)). Plaintiffs argue that they should have been afforded

“written notice of the reasons for the action and an opportunity to contest the decision through a

contested hearing.” Pls.’ Reply at 4. Yet the Coast Guard did inform Plaintiffs of the reasons

why it denied their renewal requests, permitted them to file written submissions, and allowed

them to contest application of § 7511 to their convictions. See Mathews, 424 U.S. at 343–45

(holding that written submissions may satisfy constitutional due process requirements). The

record before the Court demonstrates that the Coast Guard considered Plaintiffs’ MMC renewal

13 applications and made particularized factual findings regarding their prior convictions. See Ex. 2

to Pls.’ Mot. at 40–45. Plaintiffs were able to request reconsideration of the decisions and then

file administrative appeals. See id. All three Plaintiffs did challenge the initial decision and

received further process. See Reid Decl. ¶ 9; Phillips Decl. ¶ 8; Boagni Decl. ¶ 8. Plaintiffs do

not argue that their prior convictions fall outside the scope of § 7511(a), meaning that it is not

clear what further process would be necessary to determine whether the Coast Guard properly

applied the statute to their factual circumstances. See Mathews,

(considering the

“risk of error inherent in the truthfinding process” and “[t]he potential value of an evidentiary

hearing” in determining the amount of process due). 6

In Codd v. Velger, for instance, the Supreme Court considered whether a police officer

was entitled to further process for his dismissal based on a previous suicide attempt using his

service revolver.

(1977). The Court observed that the plaintiff nowhere

“asserted that the report of the apparent suicide attempt was substantially false.”

. “[I]f

the hearing mandated by the Due Process Clause is to serve any useful purpose,” the Court

reasoned, “there must be some factual dispute” to resolve.

So too have Plaintiffs here failed

to demonstrate a factual dispute that further hearings might settle. See Pls.’ Reply at 4 (arguing

that a contested hearing before this Court may be required). As far as the Court can discern

based on the parties’ filings, the facts of Plaintiffs’ convictions appear to be undisputed. The

only live issue is whether the Coast Guard applied the correct law to those facts.

6 Plaintiffs additionally argue that the administrative procedures outlined in § 7704a apply to the Coast Guard’s denials under § 7511. See Pls.’ Reply at 4–5. As the Court discussed above, there is no indication that Congress intended procedures governing the revocation of an active MMC to apply when the Coast Guard denies an application for renewal.

14 The Court thus concludes that Plaintiffs have failed to establish a likelihood of success on

the merits of their claims under either the APA or the Due Process Clause. The Court could halt

its analysis here, see Guedes,

, but nonetheless proceeds to consider the remaining

factors governing issuance of a preliminary injunction.

B. Irreparable Harm

Plaintiffs argue that they will suffer irreparable harm because “[a]fter a break in service

of a year for licensed mariners . . . , an MMC’s currency expires so a former mariner seeking to

reenter the merchant marine must apply for an original-MMC.” Pls.’ Mot. at 21 (citing

, 7302(g)). Under Plaintiffs’ construction of the statutory scheme, this would

then require them to apply for new MMCs rather than renewals, at which point they concede

they would be ineligible for the credential under § 7511. See id. At the hearing, Plaintiffs

additionally pointed out that they earned significantly higher salaries in the merchant marine

compared to their current work. Defendants argue that Plaintiffs fail to show irreparable harm

because they admit they will not suffer injury until June 2025. See Defs.’ Opp’n at 25. This

factor weighs in favor of Plaintiffs, if only slightly.

“[P]laintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely

in the absence of an injunction.” Winter,

. “Such injury must be ‘both certain and

great,’ ‘actual and not theoretical,’ ‘beyond remediation,’ and ‘of such imminence that there is a

clear and present need for equitable relief to prevent irreparable harm.’” Mexichem Specialty

Resins, Inc. v. E.P.A.,

(D.C. Cir. 2015) (quoting Chaplaincy of Full Gospel

Churches v. England,

(D.C. Cir. 2006)).

Plaintiffs do not establish a likelihood of future harm or that the harm is beyond

remediation by referencing the Coast Guard’s requirements to renew their credentials. As the

15 Court explained above, Plaintiffs are ineligible to be issued MMCs regardless of whether they

seek renewal of their MMCs or apply for so-called original-MMCs. The harm they foresee—

ineligibility for an MMC—has already occurred. Furthermore, Plaintiffs fail to explain how this

harm would be beyond remediation, given that they seek an order “[d]eclar[ing] contrary to law

the Coast Guard’s disapproval under

of Plaintiffs’ Merchant Mariner

Credential renewal requests.” Am. Compl. at 25. Were Plaintiffs to eventually prevail on the

merits, it is conceivable that this Court could issue an order holding unlawful the Coast Guard’s

denial of their renewed MMCs. And if the Coast Guard could not apply § 7511 to Plaintiffs’

applications and instead issued their renewed MMCs, Plaintiffs would not be required to start the

MMC application process from the very beginning. For these reasons, Plaintiffs’ asserted harms

could be remedied as part of this litigation.

In addition, this anticipated harm is not particularly imminent. “Whether [the harm] is

days or months away may be relevant to the imminence inquiry, but it is not itself dispositive.”

Signal Peak Energy, LLC v. Haaland, No. 24-cv-366,

, at *8 (D.D.C. Aug. 21,

2024). Yet here, Plaintiffs assert that to maintain eligibility to renew their MMCs, “the Court

would have to grant the preliminary injunction requested by the Plaintiffs not later than June 21,

2025.” Pls.’ Mot. at 21. Plaintiffs’ asserted harm would occur seven months away, which does

not indicate that it is “of such imminence that there is a clear and present need for equitable

relief.” Mexichem,

. This matter can be resolved on the merits before that date.

At the Court’s hearing on this motion, however, Plaintiffs explained that their inability to

work as merchant mariners has resulted in a significant reduction in pay, and that at least one

Plaintiff has since been unable to maintain regular employment. On the one hand, it is “well

settled that economic loss does not, in and of itself, constitute irreparable harm.” Wisconsin Gas

16 Co. v. FERC,

, 674 (D.C. Cir. 1985). Yet courts often reach this conclusion based

on the notion that a wrongfully discharged employee may be entitled to back pay. See, e.g.,

Wisconsin Gas, 758 F.2d at 674 (reasoning that “adequate compensatory or other corrective

relief [may] be available at a later date”); Sampson v. Murray,

(1974);

Davenport v. Int’l Bhd. of Teamsters, AFL-CIO,

(D.C. Cir. 1999); Williams v.

Walsh,

, 63–64 (D.D.C. 2022). Some courts in this Circuit have thus

concluded that unrecoverable losses in wages may represent irreparable harm when they are

“sufficiently severe to warrant emergency relief.” Save Jobs USA v. U.S. Dep’t of Homeland

Sec.,

(D.D.C. 2015); see also American Federation of Government

Employees, AFL–CIO v. United States,

(D.D.C. 2000) (finding

“irreparable harm” where the plaintiffs were likely to be prevented from recovering damages by

federal back pay statute). Plaintiffs here have not firmly established that they lack a remedy for

their alleged harms, although none is immediately apparent given the federal government’s

sovereign immunity. Nor have Plaintiffs provided any documentation to the Court to show that

their financial positions are “sufficiently severe.” Save Jobs USA,

; see

also Fisheries Survival Fund v. Jewell,

(D.D.C. 2017) (explaining that

“[t]he standard for irreparable harm is particularly high in the D.C. Circuit” and that “[p]laintiffs

have the ‘considerable burden’ of proving that their purported injuries are ‘certain, great and

actual—not theoretical—and imminent.’” (quoting Power Mobility Coal. v. Leavitt,

(D.D.C. 2005))). The Court will nonetheless conclude that Plaintiffs have

established at least some irreparable harm resulting from non-renewal of their MMCs due to

dramatically decreased wages, and that this factor weighs somewhat in their favor.

17 C. Balance of the Equities and the Public Interest

Plaintiffs contend that the equities weigh in their favor and that an injunction is in the

public interest because they request “to resume their renewal-MMC status and continue

working” during the pendency of this lawsuit. Pls.’ Mot. at 22. Plaintiffs also argue that it is in

the public interest to “hold[] the Coast Guard to account for its failure to implement” the statutes

properly.

at 22–23. Plaintiffs additionally argue that the balance of the equities weighs in

their favor because the Coast Guard’s interpretation of § 7511, which applies to merchant

mariners, differs from its interpretation of the similar provision in

, which

prohibits enlistment in the armed forces of individuals convicted of certain sex offenses. See

at 23–26. Defendants argue that the Court should defer to Congress’s evaluation of the public

interest in “protect[ing] the merchant marine from sexual offenders.” Defs.’ Opp’n at 26.

The Court concludes that the public interest weighs against enjoining the application of

§ 7511 in the face of Congress’s recent legislation to address sexual assault within the Merchant

Marine. The Court finds that the passage of § 7511 and § 7704a in 2022 represented Congress’s

judgment that reducing the number of licensed merchant mariners with sex offense convictions

was in the public interest. See NDAA §§ 11601–11, 136 Stat. 4145–56. In considering the

legislation, the United States House Committee on Transportation and Infrastructure responded

to particular reports of sexual assault, heard from victims and advocacy groups, “found each

account of sexual abuse disturbing and disheartening,” and resolved that “[e]very mariner

deserves to feel safe while at sea.” H.R. Rep. No. 117-282, at 43. The Court is loath to second

guess Congress’s evaluation of the public interest in denying MMCs to individuals convicted of

sex offenses. The public interest Plaintiffs advance—which boils down to the interest in

enforcing a correct construction of the law—does not convince the Court otherwise. This is

18 particularly so given that Plaintiffs do not convincingly argue that the Coast Guard applied the

law incorrectly.

Finally, Plaintiffs’ comparison of § 7511 to

fails to demonstrate that the

balance of the equities tilts toward them. Plaintiffs offer no authority interpreting § 657 or

demonstrating that Congress intended the two provisions to be interpreted in tandem. Plaintiffs

argue that the Coast Guard’s application of the provisions to merchant mariners and Coast

Guardsmen are inequitable because “[a] uniformed member of the Coast Guard convicted of a

sex offense before entering service can be subject to a separation proceeding, but removal from

service is not automatic and the adjudicating officials can recommend retention of this individual

in the military, who would also be able to reenlist later for additional continued service.” Pls.’

Mot. at 24–25. 7 The manual discussing separations from Coast Guard service indicates that

enlisted members convicted of certain sex offenses before or during service “will be processed

for separation.” Military Separations, COMDTINST 1000.4C at 2-42 (Aug. 2024), at

https://perma.cc/RS69-TFKY (emphasis added). Another manual bars enlistment or reenlistment

for individuals who committed serious offenses, including those processed for separation for a

sex offense conviction. Enlistments, Evaluations, and Advancements at 1-4 to 1-5,

COMDTINST M1000.2C (Jan. 2020), at https://perma.cc/WAF4-LYA4. Although service

members may generally overcome eligibility shortfalls when “an appeal is approved by [the]

Commander,” id. at 1-4, there is no indication that an individual convicted of a sex offense may

do so in light of Congress’s clear prohibition in § 657, as well as the Commandant’s instruction

7 Plaintiffs do not include the relevant manual portions as an exhibit. Nonetheless, “[a] court may take judicial notice of information posted on official public websites of government agencies.” Arabzada v. Donis, No. 23-cv-655,

, at *3 (D.D.C. Mar. 19, 2024) (citing Devani v. U.S. Citizenship & Immigr. Servs., No. 22-cv-1932,

, at *3 n.1 (D.D.C. Apr. 12, 2023)).

19 requiring separation for such individuals. Plaintiffs provide no evidence that the Coast Guard

treats merchant mariners and Coast Guardsmen differently in practice and advances no other

argument as to why the equities weigh in their favor.

D. Balancing the Factors

Based on the foregoing analysis, the Court concludes that Plaintiffs are not entitled to a

preliminary injunction barring application of § 7511 and the Policy Letter to their applications

for renewed MMCs. Plaintiffs have not demonstrated a likelihood of success on the merits, and

neither the public interest nor the equities weigh in their favor. Plaintiffs’ marginal showing of

irreparable harm is insufficient to support an injunction while this case proceeds.

V. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for a Temporary Restraining Order and

Preliminary Injunction is DENIED. An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.

Dated: November 27, 2024 RUDOLPH CONTRERAS United States District Judge

20