MARAD seeks public comment on EMBARC

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.


    • A class action typically requires a group that is so numerous that it is too difficult to identify all of the potential members of the class. With a finite number of midshipmen in a graduating class (not all of whom will be unable to graduate), it’s probably pretty easy to identify everyone who falls within that group. So odds of a class action getting beyond the class-certification stage of the litigation are pretty slim, I suspect.

      • A Class Action under FRCP 23(a)1-4 requires: Numerosity, Commonality, Typicality and Adequacy (whether sufficient by class rep OR legal representation); normally the commonality requirement is the most difficult standard to meet (see Scalia opinion under Walmart v. Dukes) – and these four prereqs feed into whether a defined class is pursuing a b(2) – essentially an injunction that stops a current policy from applying to the future or b(3) – which is a class pursuing damages from “wrong”. Really depends if you want to pursue an injunction to stop the enactment of EMBARC OR the class itself wants to pursue putative damages (which seem difficult to define) – my .02 and I’m not sure it’s as difficult as one thinks depending on the cause of action and attached law you are attacking.

  1. When I reviewed my own file records and got a later version, the “contract” signed during indoctrination [under duress] appeared more of an “acknowledgement of service obligation”. Perhaps as a further post you could discuss the actual “contracts” signed by the students with the Navy and MarAd

  2. My son selected USMMA over CG because of Sea Year. IMO, MARAD is not holding up their end of the bargain.

    I’m not a lawyer, but I understand that multiple students could join a lawsuit without it being classified as a class-action. If MARAD’s legal office is like that of most Government agencies, they would probably drop the rule rather than get into a lawsuit where their chances of losing are fairly good and that bar is generally low.

    If anyone wants to have exploratory discussions, I would be interested.

    • That’s one of the reasons mids should submit the waiver I suggested. It would give them standing for certain litigation if MARAD refuses to grant it. I’ve alluded to a lawsuit in posts on the topic but haven’t wanted to give away too much information and tip our hands. Some very good lawyers who specialize in administrative law helped craft the waiver for that purposes. If you want to see what administrative law can do to an agency that fails to follow the Administrative Procedures Act, read today’s opinion from the judge who struck down the travel mask mandate.

  3. It would be great if someone could post the name/number of a lawyer who is experienced with the issues at hand and who has a good track record of successful settlements.

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