Before an administrative agency wishes to adopt a rule, the U.S. Administrative Procedure Act (“APA”) mandates that the agency first give notice and an opportunity to be heard. See 5 U.S.C. § 553. The procedure for doing that is to publish a notice in the Federal Register, an official U.S. Government publication. Last week, MARAD published a notice in the Federal Register about its intention to do what it already has done — adopt EMBARC as a rule. You have until May 31, 2022 to submit comments. If you decide to comment, please be respectful. If you want to hold off on commenting for a bit, I am sure that some of the folks who help out behind the scenes on this blog will provide me with some key points to make that I will then publish on the blog.
I’m thinking that the fact that MARAD has suddenly decided to publish this rule is significant. This is an agency that doesn’t do anything it doesn’t have to do and even then only if it is feeling outside pressure to take action. What’s behind this sudden promulgation of a rule that has actually been in effect since December 2021? You will notice that in the notice of proposed rule making, MARAD carefully refers to its adoption of EMBARC back in December 2021 as mere “guidance.” Based upon an admittedly quick review of the new “rule,” I do not see a substantive difference between December’s “guidance” and the “rule” now being promulgated. Which means that the “guidance” was actually a “rule”—but one that was adopted without following the requirements of the APA. (Since the “guidance” was mandatory (no midshipman was allowed to sail on a vessel that had not been EMBARC approved), I think the only realistic interpretation is that it was indeed a rule and not mere “guidance.”) So why the sudden Notice of Rule Making?
It looks to me like someone at MARAD finally woke up and realized that MARAD got out way over its skis in December when it published the mandatory “guidance.” It appears that MARAD is now trying to make up for the mistake by doing in March what it should have done in December. But unless MARAD immediately revokes EMBARC (as it should), it may be too late for MARAD to unring the bell for any Academy midshipman who is not going to graduate on schedule in June 2023 with a diploma and license (rather than with an empty tube and a requirement to complete more sea time after graduation).
I think there is a colorable argument that any midshipman in that position has an action in the Court of Federal Claims under the Tucker Act for breach of contract (each midshipman has a contractual service obligation to the government in exchange for receiving the training promised from the Academy). The harm is particularly palpable for graduates who planned to go active duty in the military upon graduation. They will lose service time, opportunities to compete for plum assignments and probably other advantages that I am not aware of. In terms of a remedy, at the very least I think subsection (a)(2) of the Tucker Act would allow the court to retroactively adjust the graduate’s service time so as to ameliorate some of the harm. There is a possibility that other breach of contract damages could be awarded as well, and not just for those graduates going active duty. A delay in getting a USCG license will affect union seniority, could cause the person to miss a job opportunity and by its nature that delay has a long-term effect on lifetime earnings. It is probably a stretch to be able to get those damages under the Tucker Act but not out of the question. And since most cases settle before they get to trial, the potential (to the government) of losing that argument might result in a better settlement. Importantly, under the Tucker Act, if you sue and get any relief, the Court should award you your reasonable attorneys’ fees as well. MARAD’s foolish embarkation [bad pun intended] on this fruitless quest for a perfect world at sea, may (and, in fairness, should) prove costly to it.