Mullen v. Department of Homeland Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Capt. EDWARD C. MULLEN, III CIVIL ACTION

VERSUS NO: 25-404

KRISTI NOEM, in her official capacity SECTION: T (3)

as Secretary of the Department of

Homeland Security, et al.

ORDER AND REASONS

Before the Court is Plaintiff’s, Capt. Edward C. Mullen, III, motion for a preliminary

injunction, R. Doc. 2, and Defendants’, Kristi Noem, Secretary of the Department of Homeland

Security, and Admiral Kevin E. Lunday, Commandant of the Coast Guard, (“the Federal

Defendants”) motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), R. Doc. 15. For the following

reasons, the motion to dismiss is GRANTED, the motion for a preliminary injunction is DENIED

AS MOOT, and the Complaint is dismissed in full.

BACKGROUND

1. Factual Summary1

In 2006, Plaintiff was convicted of Forcible Rape in violation of La. R.S. 14:42.1. R. Doc.

16-2. Eight years later, Plaintiff obtained a merchant mariner credential (MMC) from the Coast

Guard. R. Doc. 16-1 at ¶ 13. Plaintiff renewed his MMC on August 18, 2022, and it is currently

1 A Rule 12(b)(1) motion to dismiss is treated like motions to dismiss under Rule 12(b)(6) but

allows the Court to consider a broader range of materials. Thomas v. City of New Orleans, 883 F.

Supp. 2d 669, 676 (E.D. La. 2012) (citing Williams v. Wynne, 533 F.3d 360, 364–65 n. 2 (5th Cir.

2008)). The Court assumes Plaintiff’s well-pleaded factual allegations in the Complaint as true.

Daniel v. Univ. of Texas Sw. Med. Ctr., 960 F.3d 253, 256 (5th Cir. 2020).

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valid until 2027. Id.; see also 46 U.S.C. § 7106 (license is only valid for five years and may be

renewed). A year later, Plaintiff applied for a raise of grade for his MMC. Id. at ¶ 14. The Coast

Guard denied Plaintiff’s application, request for reconsideration, and appeal to the Coast Guard

Headquarters. Id. at ¶ 12. The Coast Guard notified him that 46 U.S.C. § 7511 required denial on

account of his 2006 conviction for Forcible Rape, an applicable sexual offense under state law. Id.

During this time, the Coast Guard initiated Suspension & Revocation (S&R) proceedings

to revoke Plaintiff’s MMC. An S&R proceeding is a proceeding before an Administrative Law

Judge (“ALJ”) which reviews the suspension or revocation of a MMC, certificate of registry, or

“document issued by the Coast Guard.” 3 C.F.R. § 20.102. However, these proceedings have been

stayed pending the resolution of the Federal Defendants’ motion to dismiss. R. Doc. 16-3 at ¶ 3.

Plaintiff retains his MMC in the meantime. R. Doc. 15-4 at p. 3.

2. Procedural History

The Coast Guard is responsible for issuing MMCs. 46 U.S.C. § 7101. It is “authorized by

statute to issue merchant mariner licenses, certificates of registry, or merchant mariner

documentation (depending on the specific job classification) to qualified individuals seeking to

work aboard a United States merchant marine vessel.” See, e.g., Seafarers Int’l Union of N. Am. v.

Coast Guard, 81 F.3d 179, 181 (D.C. Cir. 1996).

In 2022, Congress passed § 7511. It states that “[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 . . . a substantially similar

offense under State, local, or Tribal law.” 45 U.S.C. § 7511(a)(2).

46 U.S.C. § 7704a concerns S&R proceedings for sexual assault violations. It states “[i]f it

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is shown at a hearing under this chapter that a holder of a license, certificate of registry, or merchant

mariner's document issued under this part, within 10 years before the beginning of the suspension

and revocation proceedings, is the subject of an official finding of sexual assault, then the license,

certificate of registry, or merchant mariner’s document shall be revoked.” Id. § 7704(b).

The Commandant of the Coast Guard’s decision to affirm a license suspension or

revocation is appealable to the National Transportation Safety Board at the Department of

Transportation (“NTSB”). 49 U.S.C. § 1133(3); 49 C.F.R. § 825.5. The NTSB’s decision is

appealable in this case to the Fifth Circuit. See 49 U.S.C. § 1153(a). The same requirements apply

for an original, renewal, duplicate, raise of grade, or a new endorsement on a previously issued

credential. See 46 C.F.R. § 10.209(a). (“applicant for…raise of grade…must establish that they

satisfy all the requirements for the MMC”).

Plaintiff’s pro se action challenges the application of § 7511 and § 7704a to his case. R.

Doc. 1 at ¶¶ 68-81. He submits that the Coast Guard cannot initiate S&R proceedings because his

offense was over 10 years old and that § 7511 does not allow for a retroactive application to initiate

S&R proceedings under § 7704a. Id. at ¶ 48. Plaintiff claims the Federal Defendants’ position in

Policy Letter 03-23 informs their decision to revoke his MMC. See, e.g., id. at ¶ 72. Plaintiff’s six

causes of action all emanate from the interplay of §§ 7511 and 7704a which could ultimately lead

to the revocation of his MMC. Id. at ¶¶ 68-81. He moved for a preliminary injunction asserting

that the Coast Guard’s actions violate several constitutional provisions and the APA. R. Doc. 2.

Soon after, the Federal Defendants filed this Rule 12(b)(1) motion. R. Doc. 15.

The Federal Defendants submit that “the Court lacks subject matter jurisdiction over the

matter.” R. Doc. 15; see also R. Doc. 16 at p. 1, 8 (arguing Plaintiff’s preliminary injunction should

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be dismissed in full for want of subject matter jurisdiction). They argue the Coast Guard provides

for judicial review “but only in a court of appeals, and only after an appeal to the NTSB.” R. Doc.

15-1 at p. 7 (quoting Dresser v. Meba Medical & Benefits Plan, 628 F.3d 705 (5th Cir. 2010)).

Plaintiff argues he is entitled to immediate district court review under Axon Enter., Inc. v. FTC,

598 U.S. 175 (2023), because he asserts a structural constitutional challenge. R. Doc. 18.

LAW & ANALYSIS

Federal courts are courts of limited jurisdiction and possess power over only those cases

authorized by the United States Constitution and federal statutes. Coury v. Prot, 85 F.3d 244, 248

(5th Cir. 1996). A party may raise the lack of subject matter jurisdiction at any time during the

litigation in a motion to dismiss pursuant to Rule 12(b)(1). Kontrick v. Ryan, 540 U.S. 443, 456

(2004); Fed. R. Civ. P. 12(b)(1). District courts also have an independent duty to ensure it has

subject matter jurisdiction over the entire case. Irving Cent. Place, LLC v. Fed. Ins. Co., No. 3:17-

CV-1617-L, 2018 WL 993843, at *3 (N.D. Tex. Feb. 21, 2018) (citing Ruhrgas AG v. Marathon

Oil Co., 526 U.S. 574, 583 (1999)).

In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on more documents than

in a motion to dismiss under Rule 12(b)(6). Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir.

2005) (“the district court is ‘free to weigh the evidence and resolve factual disputes in order to

satisfy itself that it has the power to hear the case’”). A court may find subject matter jurisdiction

is lacking from “(1) the complaint alone; (2) the complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The

party asserting jurisdiction carries the burden of proving that the court has subject matter

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jurisdiction. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011). At this

stage, he must do so through a “plausible set of facts . . ..” Physician Hosps. of Am. v. Sebelius,

691 F.3d 649, 652 (5th Cir. 2012). If a plaintiff cannot invoke subject matter jurisdiction, the court

should dismiss the action with prejudice. In re Great Lakes Dredge & Dock Co., 624 F.3d 201,

209 (5th Cir. 2010).

The Court agrees with the Federal Defendants that the Court lacks subject matter

jurisdiction. Dresser holds unambiguously that the Coast Guard’s regulatory scheme limits judicial

review of an S&R proceeding to the NTSB followed by a direct appeal to the Fifth Circuit. 628

F.3d at 709. There, the Fifth Circuit affirmed the district court’s decision to dismiss an APA and

constitutional challenge surrounding an S&R proceeding for lack of subject matter jurisdiction. Id.

The court held the judicial review process is as follows: first, a S&R hearing before an ALJ

governed by the APA, 46 U.S.C. § 7702(a), second, an appeal to the Coast Guard Commandant

“to determine whether the ALJ committed error in the proceedings[,]” 33 C.F.R. § 20.1004(a),

third, the NTSB “shall review on appeal . . . a decision of the head of the department in which the

Coast Guard is operating on an appeal from[,]” 49 U.S.C. § 1133(3), and lastly, review by the

“appropriate court of appeals of the United States,” 49 U.S.C. § 1153(a). Id. at 709-10. The court

noted this process is not optional but that “such regulations provide for an adequate remedy in a

court for review[.]” Id. at 710-11. In short, Congress can limit district court jurisdiction. Burgess

v. Whang, ––– F.4th ––––, 2025 WL 2437490 at *3 (5th Cir. 2025) (citation omitted).

Plaintiff’s reliance on Axon is misplaced. His traditional constitutional challenges to §§

7511 and 7704a are substantive, not structural. In most cases, Congress can substitute district court

jurisdiction for an alternative scheme of review. Axon, 598 U.S. 175 at 185. But for others they

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cannot. Courts consider the three Thunder Basin factors: (1) whether precluding district court

jurisdiction would “foreclose all meaningful judicial review” of the claim; (2) whether the claim

is “wholly collateral to [the] statute’s review provisions”; and (3) whether the claim lies “outside

the agency’s expertise.” Space Expl. Techs. Corp. v. NLRB, ––– F.4th ––––, 2025 WL 2396748 at

*6 (5th Cir. 2025) (citing Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 211-12 (1994)). When

each Thunder Basin factor is answered in the affirmative, Congress cannot strip the district court

of jurisdiction. Axon, 598 U.S. 175 at 185. In these “structural” claims, plaintiffs challenge the

“very existence of an agency” often alleging they are “subject[ed] to an illegitimate proceeding,

led by an illegitimate decisionmaker.” Id. at 189 (challenge to an ALJ’s dual layer removal

protection); Space Expl. Techs. Corp., ––– F.4th ––––, 2025 WL 2396748 (same). “[R]un-of-the-

mill constitutional claims, like due process and equal protection . . .” are not structural. Burgess, –

–– F.4th ––––, 2025 WL 2437490 at *6 (citing Bank of Louisiana v. FDIC, 919 F.3d 916 (5th Cir.

2019)).

Plaintiff does not assert constitutional claims against the structure of the Coast Guard.

Rather, he complains about the Federal Defendants’ application of two federal statutes against

him. See R. Doc. 1 at ¶¶ 68-81. The Coast Guard’s statutory scheme authorizes ultimate review in

a federal circuit court, 49 U.S.C. § 1153(a), and allows Plaintiff to raise his constitutional claims

during the enforcement proceedings before an ALJ who can fully address such arguments. Plaintiff

still gets meaningful judicial review. See Bank of Louisiana, 919 F.3d at 926 (5th Cir. 2019). And

Plaintiff’s claims are not wholly collateral because they “arise from actions [the Coast Guard will]

take in the course of [the Coast Guard’s enforcement] scheme[]”—whether to revoke Plaintiff’s

MMC and deny his raise of grade application. Id. (citation omitted).

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Therefore, the Coast Guard’s alternative review scheme is permissible. The Court lacks

subject matter jurisdiction, and the Complaint and Amended Complaint must be dismissed with

prejudice.2

Accordingly,

IT IS ORDERED that the Federal Defendants’ Motion to Dismiss, R. Doc. 15, is

GRANTED. Plaintiff’s claims are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff’s Motion for a Preliminary Injunction, R.

Doc. 2, is DENIED AS MOOT.

New Orleans, Louisiana, this 30th day of September 2025.

GREG GERARD GUIDRY

UNITED STATES DISTRICT JUDGE

2 Even if Plaintiff asserted independent constitutional challenges to the denial of his raise of grade

application and the Court had jurisdiction over these claims, it would deny Plaintiff’s request for

a preliminary injunction. The Court finds no constitutional issue or APA issue with § 7511’s

application to his raise of grade application. Policy Letter 03-23 does not represent a legislative

rule, but disclaims its capacity to “impose legally binding requirements on any party[,]” therefore,

it does not require notice and comment under the APA. Reid v. Mayorkas, 759 F. Supp. 3d 15, 23-

24 (D.D.C. 2024). “[T]here 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” and “to the extent that this has some retroactive effect, the statute contains clear

congressional intent favoring such a result.” Id. Plaintiff also received a constitutionally sufficient

proceeding because the Coast Guard (a) informed Plaintiff the reason for denial (b) permitted

written responses and reconsideration and (c) allowed him to contest application of § 7511 to the

conviction. Id. at 26 (denying a preliminary injunction for plaintiff’s due process challenge to §

7511); R. Docs. 15-3, 15-4. And the volume of legislative history shows Congress intended § 7511

to protect merchant mariners from sexual harassment, not to punish offenders. See R. Doc. 16 at

pp. 15-18. Indeed, Plaintiff does not contest his guilt or that the 2006 conviction is an applicable

sexual offense under state law.

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