                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
WILMINA SHIPPING AS, et al.         )
                                    )
                  Plaintiffs,       )
                                    )
      v.                            )   Civil Action No. 11-2184 (ABJ)
                                    )
UNITED STATES DEPARTMENT OF         )
HOMELAND SECURITY, et al.           )
                                    )
                  Defendants.       )
____________________________________)


                                 MEMORANDUM OPINION

       This case concerns the scope of the U.S. Coast Guard’s authority to ban a foreign ship

from U.S. waters when it finds that the ship has violated provisions of federal environmental

laws and international environmental treaties. Plaintiffs Wilmina Shipping AS and Wilhelmsen

Marine Services AS own and operate the M/T Wilmina, a Norwegian-flagged oceangoing tank

vessel. In May 2010, the Coast Guard conducted an investigation of the Wilmina while it was

docked at the Port of Corpus Christi and found certain of the ship’s pollution control devices to

be inoperable or disarmed in violation of U.S. laws and international treaties. As a result, on

May 21, 2010, the Coast Guard revoked the ship’s certificate of compliance, which a foreign

tanker vessel must have to operate in U.S. waters. The Coast Guard further ordered that after the

Wilmina left the Port of Corpus Christi, it could not enter any U.S. port or U.S. waters again for

three years or until after the ship had developed and implemented an Environmental Compliance

Plan (“ECP”) acceptable to the Coast Guard, and it had experienced a year of satisfactory audits.

       Plaintiffs challenge the order, alleging that the Coast Guard lacked the statutory authority

to issue it and that the Coast Guard failed to provide due process of law before revoking the
certificate of compliance. They also challenge the agency’s findings on the merits, arguing that

the decision was arbitrary and capricious and improperly based upon information provided by an

unreliable whistleblower. The Court deferred consideration of those issues until after the

question of the scope of the agency’s authority had been resolved.

       Defendants filed a motion for summary judgment, and plaintiffs filed a cross-motion for

summary judgment. Plaintiffs ask the Court to vacate the order, enjoin the Coast Guard from

excluding the Wilmina from U.S. waters, and enjoin it from withholding the certificate of

compliance.

       The Court holds that the Coast Guard has the authority to set forth conditions for the

restatement of a certificate of compliance, including the sorts of conditions it ordered for the

Wilmina. Under the terms of the statute that governs these vessels, the Coast Guard is required

to inform vessel owners of the steps they must take to bring their ships into compliance. But the

Coast Guard does not have the statutory authority to exclude a ship from U.S. waters for a term

of years as an alternative to specifying conditions for reinstatement of the certificate. The Court

also finds that the Coast Guard did not violate plaintiffs’ due process rights when it revoked the

ship’s certificate without a pre-deprivation hearing.       Accordingly, the Court grants the

defendants’ motion for summary judgment in part and denies it in part, and it grants plaintiffs’

cross-motion for summary judgment in part and denies it in part.

                                        BACKGROUND

       The M/T Wilmina is a Norwegian-flagged oceangoing tank vessel. Defs.’ Mot. for

Summ. J. [Dkt. # 13] (“Defs.’ Mot.”) at 1; Pls.’ Opp. to Defs.’ Mot. for Summ. J. and Cross-Mot.

for Summ. J. [Dkt. # 20] (“Pls.’ Mot.”) at 3. On May 3, 2010, the day before the Wilmina was

scheduled to dock at the Port of Corpus Christi, a former member of the ship’s engine

department, Robert Pabillar, contacted the Coast Guard and reported that the ship’s crew had
                                                2
bypassed its pollution control equipment and discharged oily bilge waste directly overboard. 1

Pls.’ Mot. at 3. When the Wilmina arrived the next day, the Coast Guard boarded the vessel and

conducted a Port State Control Inspection. Id. at 3–4, citing Port State Control Report of

Inspection (“First Rep. of Inspection”) at Administrative Record (“AR”) 3. 2 The Coast Guard

identified three deficiencies unrelated to the Wilmina’s pollution control devices, and it issued a

certificate of compliance. First Rep. of Inspection, AR 3–4; Certificate of Compliance, AR 5–6.

       The certificate states that “the ship has been examined and found to be in compliance

with all applicable U.S. and international marine safety and environmental protection standards.”

Certificate of Compliance, AR 5. The second page of the certificate includes a “Notice to

Mariners” that warns:

               For tank ships only: For this Certificate of Compliance to remain in
               effect, the vessel shall be maintained to the safety and construction
               standards as examined for compliance with applicable marine safety and
               environmental protection laws and international conventions.

Id. at AR 6. It further provides that “[e]ntries shall be made on this certification in accordance

with current instructions for the following types of foreign vessel examinations: . . . Other

compliance examinations (i.e. – MARPOL, Ballast Water, etc.) or Deficiency checks.” Id.

       Later that same evening, the Coast Guard re-boarded the vessel to conduct an

investigation of Pabillar’s allegations. Pls.’ Mot. at 4. This time, it identified a number of

deficiencies with the ship’s pollution control equipment that violated the International


1       Pabillar had been a pipefitter onboard, but had been relieved of duty before the ship
arrived in port. Pls.’ Mot. at 3.

2       Defendants filed an electronic copy of the administrative record with the Court on May
15, 2010. [Dkt. # 9]. An index of the administrative record appears on the docket [Dkt. # 16],
but because of the record’s size, it was not entered on the electronic docket in its entirety. A
copy of the administrative record may be viewed at the Clerk’s Office. Page citations to the
administrative record refer to the page numbers appearing at the top right corner of each page in
the record.
                                                3
Convention to Prevent Pollution from Ships (“MARPOL”).            Port State Control Report of

Inspection (“Second Rep. of Inspection”), AR 7–9. The deficiencies cited in the report included

the facts that: the ship’s oily water separator, a device used to remove oil from the ship’s bilge

water, was inoperable; a discharge pipe, which was supposed to run between the oily water

separator and through the ship’s hull, had been removed; and parts of the oily water separator

were found in a chemical locker. Id. The Coast Guard also found that the ship failed to maintain

engine room alarms, which were supposed to sound if the pollution control equipment detected a

certain level of oil in the water to be discharged. Id. Finally, it found that the ship failed to

maintain proper records in its oil record book. Id.

       On May 21, 2010, the Coast Guard issued the Captain of the Port Order No. 093-10 (the

“Order”), AR 1–2, that prompted this litigation. The Order listed deficiencies with the ship’s

pollution control equipment and record keeping, specifically, “inconsistencies in the ship’s oil

record book, inoperable oily water separating equipment, oily sludge in the overboard

discharging piping (where there should be none), and an oily water bypass hose with flanges and

oil inside of it.” Order at 1, AR 1. It also found that “that the Master and Chief Engineer were

unfamiliar with and failed to comply with the Safety Management System (SMS) for the vessel

with regard to reporting critical equipment casualties and maintaining records and engine room

alarms, including oily water separator alarm printouts.” Id. The Order further indicates that

based upon crewmember interviews and other information gathered during the inspection, the

Coast Guard found that the ship had “discharged oily contaminated bilge waste and/or sludge in

contravention of MARPOL on several occasions and entered the United States port of Corpus

Christi, Texas with an oil record book with false entries.” Id.




                                                 4
        Based upon all of these findings, the Captain of the Port made the following

determination:

                 [T]he willful noncompliance with MARPOL and APPS [the Act to
                 Prevent Pollution from Ships, 33 U.S.C. §§ 1901 et seq.] that occurred on
                 board your vessel creates a threat to the marine environment. . . .
                 Therefore, I am revoking your vessel’s Certificate of Compliance in
                 accordance with 46 U.S.C. § 3711(c).

Id., AR 2. He went on to state that he was imposing conditions “under the authority of 33 U.S.C.

§ 1228:”

                 Once your vessel departs port it may not enter the Sector Corpus Christi
                 Marine Inspection Zone and Captain of the Port Zone, as defined in 46
                 C.F.R. 3.404-35, for a period of three (3) years, or until the vessel has
                 developed and successfully implemented an Environmental Compliance
                 Plan (ECP) to the satisfaction of the U.S. Coast Guard . . . . Successful
                 implementation of an agreed upon ECP must include a period of
                 satisfactory audits for at least a one (1) year period, after which I will
                 consider allowing it to enter the Sector Corpus Christi Marine Inspection
                 Zone and Captain of the Port Zone.

Id. (bold in original).

        On May 27, 2010, the Coast Guard sent plaintiff Wilmina Shipping AS, the ship’s owner,

a letter stating that the Order would apply to all U.S. ports and navigable waters. Letter of May

27, 2010 to Wilmina Shipping AS from Captain E. Christensen, Chief, Office of Vessel

Activities (“Letter 16711”), AR 557–60.

        Plaintiffs took multiple steps to appeal the orders within the Coast Guard.

            •    On August 25, 2010, plaintiffs appealed to the Captain of the Port or Sector
                 Commander. Aug. 25, 2010 Letter, AR 191–225.

                 On November 19, 2010, the Captain of the Port reaffirmed the original
                 determination that the Wilmina was not in compliance with MARPOL. Nov. 19,
                 2010 Letter, AR 188–90.

            •    On December 9, 2010, plaintiffs appealed to the District Commander of the
                 Eighth Coast Guard District. Dec. 9, 2012 Letter, AR 436–44.


                                                 5
               On February 11, 2011, the Commander of the Eighth Coast Guard District denied
               the appeal. Feb. 11, 2011 Letter, AR 432–35.

           •   On March 1, 2011, plaintiffs appealed the District Commander’s decision to the
               Commander of the Coast Guard Atlantic Area. Mar. 1, 2011 Letter, AR 488–95.

               On April 8, 2011, the Commander affirmed the Eighth Coast Guard District
               denial. Apr. 8, 2011 Letter, AR 487.

           •   On April 27, 2011, plaintiffs appealed to the Vice Admiral of the Atlantic Area.
               Apr. 27, 2011 Letter, AR 509–518.

               On November 1, 2011, the Assistant Commandant for Prevention Policy, Rear
               Admiral James Watson, denied that appeal. Nov. 1, 2011 Letter, AR 496–508.

       Having exhausted their administrative appeals, plaintiffs filed this lawsuit, alleging that

the Coast Guard lacked the statutory authority to issue the Order and Letter 16711 and

contending that they did not receive the due process required under the law when the Coast

Guard revoked the Wilmina’s certificate of compliance without a pre-deprivation hearing. They

allege violations of the Port and Water Safety Act (“PWSA”) and the Administrative Procedures

Act (“APA”). Compl. ¶¶ 145–158.

                                   STANDARD OF REVIEW

       Summary judgment is appropriate when the pleadings and evidence show that “there is

no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). However, in cases involving review of agency action

under the Administrative Procedure Act (“APA”), Rule 56 does not apply due to the limited role

of a court in reviewing the administrative record. Select Specialty Hosp.-Akron, LLC v. Sebelius,

820 F. Supp. 2d 13, 21 (D.D.C. 2011). Under the APA, the agency’s role is to resolve factual

issues and arrive at a decision that is supported by the administrative record, and the court’s role

is to “determine whether or not as a matter of law the evidence in the administrative record


                                                 6
permitted the agency to make the decision it did.” Occidental Eng’g Co. v. INS, 753 F.2d 766,

769–70 (9th Cir. 1985), citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415

(1971); see also Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977).

       Under the APA, a court must “hold unlawful and set aside agency action, findings, and

conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law,” 5.U.S.C. § 706(2)(A), in excess of statutory authority, id. § 706(2)(C), or

“without observance of procedures required by law,” id. § 706(2)(D). However, the scope of

review is narrow. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983). The agency’s decision is presumed to be valid, see Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. at 415, and the court must not “substitute its judgment for

that of the agency.” State Farm, 463 U.S. at 43. A court must be satisfied, though, that the

agency has examined the relevant data and articulated a satisfactory explanation for its action,

“including a rational connection between the facts found and the choice made.” Alpharma, Inc.

v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (citations omitted) (internal quotation marks omitted).

       In reviewing an agency’s interpretation of a statute, courts use the two-step analysis

outlined in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43

(1984). Step one involves determining whether Congress has spoken directly to the precise

question at issue. If it has, “the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress,” and that is the end of the matter. Id.; Nat’l

Treasury Emps. Union v. Fed. Labor Relations Auth., 392 F.3d 498, 500 (D.C. Cir. 2004). If the

statute is silent or ambiguous on the question, Chevron instructs the Court to go on to a second

step and determine “whether the agency’s answer is based on a permissible construction of the




                                                 7
statute.” Chevron, 467 U.S. at 843. An agency’s interpretation will warrant deference if it is

reasonable. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991).

                                           ANALYSIS

I.     THE APPLICABLE LEGAL FRAMEWORK

       Both the Coast Guard and the ships that wish to enter U.S. waters operate under a series

of international treaties and federal statutes, and the challenged actions here must be assessed by

reference to a set of overlapping statutory regimes.

        A.     International Convention to Prevent Pollution from Ships (“MARPOL”)

       The International Convention for the Prevention of Pollution from Ships, commonly

referred to as MARPOL, is a multilateral maritime treaty that aims “to achieve the complete

elimination of intentional pollution of the marine environment by oil and other harmful

substances and the minimization of accidental discharge of such substances.” U.S. v. Pena, 684

F.3d 1137, 1142 (11th Cir. 2012), citing MARPOL, Nov. 2, 1973, modified by the Protocol of

1978, opened for signature Feb. 17, 1978. 1340 U.N.T.S. 62, 184. Both the United States and

Norway are signatories to the treaty. Because MARPOL is not self-executing, each signatory

must implement the treaty by establishing rules for ships that fly its flag, certifying that the ships

comply with the treaty rules and sanctioning those ships that violate the treaty. See United States

v. Ionia Mgmt. S.A., 555 F.3d 303, 307 (2d Cir. 2009), citing MARPOL arts. 1(1), 4(1), 5(1).

       MARPOL’s Annex I also sets out regulations intended to prevent oil pollution. Ionia

Mgmt. S.A., 555 F.3d at 306. One of them provides that a vessel may only discharge oily water

while under way if the discharged material is processed through specified oil filtration

equipment, such as an oily water separator, that traps most of the oil. Id. 306–07, citing

MARPOL, reg. 4(c), 1340 U.N.T.S. at 67; Reg. 9, 1340 U.N.T.S. at 202. MARPOL regulations


                                                  8
also require ships to record all oil transfer operations, including the discharge of bilge water

overboard, in an oil record book that is retained on board and available for inspection by the

“competent authority” of any government party to MARPOL. Id. at 307, citing MARPOL, reg.

20, 1340 U.N.T.S. at 211–12.

       B.     The Act to Prevent Pollution from Ships

       The United States implements MARPOL through the Act to Prevent Pollution from Ships

(“APPS”), 33 U.S.C. § 1901 et seq. APPS authorizes the Secretary 3 to administer and enforce

MARPOL and to issue regulations to implement the treaty’s requirements. See 33 U.S.C. §

1903(a) and (c)(1); 33 C.F.R. § 151.01 et seq. APPS also makes it illegal to knowingly violate

MARPOL, and it authorizes the Secretary to investigate possible violations of MARPOL. 33

U.S.C. § 1907(a)–(b).

       C.     Carriage of Liquid Bulk Dangerous Cargoes and Certificates of Compliance

       Chapter 37 of Title 46 addresses the “Carriage of Liquid Bulk Dangerous Cargoes.” It

establishes standards for the construction and operation of tank vessels like the Wilmina. See,

e.g., 46 U.S.C. § 3703a (requiring certain tank vessels to have double hulls) and 46 U.S.C.

§ 3705 (setting forth minimum standards for crude oil tankers). It also sets out the procedure

under which foreign tankers may gain access to United States ports.

       Section 3711 of the chapter provides:

              A foreign vessel to which this chapter applies may operate on the
              navigable waters of the United States, or transfer oil or hazardous material
              in a port or place under the jurisdiction of the United States, only if the
              vessel has been issued a certificate of compliance by the Secretary. The

3       The APPS defines “Secretary” to mean the Secretary of the department in which the
Coast Guard is operating. 33 U.S.C. §1901(a)(11). The Coast Guard operates as part of the
Department of Homeland Security, except that it operates in the Department of the Navy if
directed by the President or by Congress in conjunction with a declaration of war. See
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 and 14 U.S.C. § 3.


                                               9
              Secretary may issue the certificate only after the vessel has been examined
              and found to be in compliance with this chapter and regulations prescribed
              under this chapter.

46 U.S.C.§ 3711(a). The certificate here called for compliance with “all applicable U.S. and

international marine safety and environmental protection standards,” in addition to those found

in Chapter 37 of Title 46 and its implementing regulations. Certificate of Compliance at 2, AR

5–6.

       The statutory provision goes on:

              A certificate shall be suspended or revoked if the Secretary finds that the
              vessel does not comply with the conditions under which the certificate was
              issued.

46 U.S.C.§ 3711(c).

       Finally, the statute requires that the Coast Guard must notify the owner or other person in

charge when a vessel is found to be out of compliance and that it must “state how compliance

may be achieved.” 46 U.S.C. § 3712.

       D.     The Port and Waterways Safety Act

       The Port and Waterways Safety Act, which regulates vessel traffic “in any port or place

under the jurisdiction of the United States,” authorizes the Secretary 4 to enact measures for

protecting navigation and the marine environment. United States v. Locke, 529 U.S. 89, 101

(2000), citing 33 U.S.C. § 1223(a)(1). The PWSA expressly applies to vessels “subject to the

provisions of chapter 37 of Title 46,” 33 U.S.C. § 1228, which, as noted above, includes tank

vessels like the Wilmina. 46 U.S.C. § 3702(a).




4      The PWSA defines “Secretary” to mean the Secretary of the department in which the
Coast Guard is operating. 33 U.S.C. § 1222(2).
                                                 10
       This statute also sets forth conditions governing access to United States ports:

               No vessel, subject to the provisions of chapter 37 of Title 46, shall operate
               in the navigable waters of the United States or transfer cargo or residue in
               any port or place under the jurisdiction of the United States, if such
               vessel–

               (1) has a history of accidents, pollution incidents, or serious repair
               problems which, as determined by the Secretary, creates reason to believe
               that such vessel may be unsafe or may create a threat to the marine
               environment; or

               (2) fails to comply with any applicable regulation issued under this
               chapter, chapter 37 of Title 46, or under any other applicable law or treaty;
               or

               (3) discharges oil or hazardous material in violation of any law of the
               United States or in a manner or quantities inconsistent with the provisions
               of any treaty to which the United States is a party. . . .

33. U.S.C. § 1228(a). There are seven categories of conditions in all. The statute also authorizes

the Secretary to determine “to the satisfaction of the Secretary” when a vessel that was in

violation of a condition of subsection (a) “is no longer unsafe or a threat to the marine

environment, and is no longer in violation of any applicable law, treaty, regulation or condition.”

33 U.S.C. § 1228(b). 5

       The PWSA also sets forth civil and criminal penalties for violations of that statute. See

33 U.S.C. § 1232(a) (“Any person who is found by the Secretary, after notice and an

opportunity for a hearing, to have violated this chapter or a regulation issued hereunder shall be

liable to the United States for a civil penalty, not to exceed $25,000 for each violation.”); 33

U.S.C. § 1232(b) (“(1) Any person who willfully and knowingly violates this chapter or any

regulation issued hereunder commits a class D felony. (2) Any person who, in the willfull and


5      Regulations issued under the PWSA provide that each District Commander or Captain of
the Port may prohibit any vessel, subject to the provisions of chapter 37 of Title 46, U.S. Code,
from operating in the navigable waters of the United States pursuant to the statute. 33 C.F.R.
Part 160.113.
                                                11
knowing violation . . . , uses a dangerous weapon, or engages in conduct that causes bodily injury

or fear of imminent bodily injury . . . commits a class C felony.”).

II.    THE COAST GUARD’S AUTHORITY TO ISSUE THE ORDER

       The Coast Guard revoked the Wilmina’s certificate of compliance based on a finding of

“willful noncompliance with MARPOL and APPS,” which created “a threat to the marine

environment.” Order at 2, AR 2. It premised the revocation on 46 U.S.C. § 3711(c). The Coast

Guard further ordered that once the Wilmina departed, it would not be allowed to reenter the port

or any other U.S. waters for three years or until it developed and successfully implemented an

ECP “to the satisfaction of the U.S. Coast Guard.” Order at 2, AR 2; Letter 16711, AR 557–60.

The Order specified that “[s]uccessful implementation of an agreed upon ECP must include a

period of satisfactory audits” for at least twelve months. Order at 2, AR at 2. The Order invoked

33 U.S.C. § 1228, the PWSA, as the authority for these requirements.

       Plaintiffs assert that the Coast Guard did not have the statutory power to ban the Wilmina

for three years or to require an ECP with a year of successful audits. Pls.’ Mot. at 17–26. They

also contend that the Coast Guard violated their due process rights by revoking the Wilmina’s

certificate of compliance without a pre-deprivation hearing. Id. at 27–29.

        A.     The Coast Guard Has Statutory Authority to Exclude a Foreign Vessel from
               U.S. Waters if the Vessel Meets One of the Conditions of the PWSA

       Plaintiffs challenge the Coast Guard’s authority to issue what they call the “banning

order,” contending that 33 U.S.C. § 1228, which the Coast Guard relies on to support the Order,

does not authorize the Coast Guard either to ban ships for a period of time or to require an ECP

with a year of audits. Pls.’ Mot. at 17–26. First, they argue that Section 1228 limits the Coast

Guard’s authority to “ban vessels from U.S. waters to actual ‘emergency’ situations.” Id. at 20.

According to plaintiffs, because the Wilmina did not present any “imminent danger” to her


                                                 12
surroundings, the statute provides no authority for the Coast Guard to act. Id. at 22–23. Second,

plaintiffs assert that the Coast Guard’s ability to sanction violations pursuant to its authority

under the PWSA is limited to the penalties set forth in 33 U.S.C. § 1232, which establishes

specific civil and criminal penalties for violations of that statute. Id. at 24. Plaintiffs contend

that these penalties are exclusive and that the Order against the Wilmina goes beyond those

authorized by the statute. Id.

       Defendants contend that Section 1228 of the PWSA grants the Coast Guard authority to

enforce the PWSA to “effectively prohibit substandard vessels from operating in U.S. waters,”

whether for a period of time or based on conditions for reinstatement of a revoked certificate.

Defs.’ Mot. at 40, quoting H.R. Rep. No.95-1384(1) at 6 (1978).

       Whether the Coast Guard is authorized by 33 U.S.C. § 1228 to issue an order containing

the particular requirements imposed here is a matter of first impression. As an initial matter, the

Court finds that this case cannot be resolved at step one of the Chevron analysis; Congress has

not unambiguously spoken to the “precise question at issue.” Chevron, 467 U.S. at 842–43. The

language of 33 U.S.C. § 1228 neither clearly grants nor clearly withholds authority to issue

orders like the one before the Court. The statute categorically states that a tank vessel “shall not

operate” in U.S. waters if it falls within any of the seven categories listed in subsection (a), but it

does not lay out how the Coast Guard is to administer this prohibition. Therefore, the question to

be resolved is whether the Order is “based on a permissible construction of the statute.” Id. at

843. Based on the language of the PWSA and a consideration of the applicable provisions in the

chapter of Title 46 that deals with vessels carrying dangerous liquid cargo, the Court concludes

that the Coast Guard’s authority is neither as broad as defendants describe it to be, nor as narrow

as the plaintiffs maintain.



                                                  13
       Chapter 37 of Title 46 gives the Coast Guard broad authority to issue and revoke

certificates of compliance to tank vessels carrying dangerous liquid cargo based on its

assessment of whether the vessels are in compliance with environmental requirements. That

chapter also authorizes the Coast Guard to revoke or suspend a certificate when it determines

that a vessel is out of compliance.       Indeed, the statute mandates revocation under those

circumstances. And the Coast Guard is required by the same law to specify the steps that a

vessel must complete in order to regain a certificate. Similarly, the Ports and Waterways Safety

Act empowers the Coast Guard to enforce environmental requirements by denying entry to ships

that are not in compliance with its provisions. The PWSA also proclaims that no vessel shall

operate in U.S. waters if it fails to comply with regulations issued under it or under any other

applicable law or treaty. That prohibition becomes inapplicable only if the vessel owner can

prove to the satisfaction of the Secretary that the vessel is no longer a threat to the environment,

and that it is no longer in violation of any applicable law or regulation. So, under the scheme of

overlapping statutes that govern this area, the granting, withdrawal, and restoration of permission

to enter U.S. waters are all committed to the judgment of the Coast Guard, but they are all

expressly predicated on compliance. It was therefore reasonable for the agency to conclude that

the statute permitted it to call for the development of, and proof of adherence to, an approved

environmental plan before the Wilmina could return. But neither statute authorized the agency

to bar the vessel’s reentry pending the expiration of a term of years of some arbitrary duration

that bore no relationship to the ship’s regulatory compliance or the amelioration of the threat to

the environment. As plaintiffs suggest, the three year ban was, in effect, a penalty and nothing

more, and the PWSA did not grant the agency the power to craft new sanctions for

environmental violations.



                                                14
               1.      The Coast Guard’s authority under the PWAS is not limited to
                       emergencies.

       The Coast Guard has authority under 33 U.S.C. § 1228 to require a ship to satisfy certain

requirements before allowing a prohibited vessel to reenter U.S. waters. Plaintiffs argue that the

statute does not authorize the Order against the Wilmina because the ship was not in imminent

danger of “colliding with another vessel, alliding with bridge or structure, running aground,

exploding or catching fire” when the Order was issued. Pls.’ Mot. at 21 n.17. They cite the

PWSA’s legislative history and case law and submit that the statute was “drafted in response to,

and in order to prevent, catastrophic marine casualties” and applies only in “maritime

emergencies.” Pls.’ Mot. at 20–21. But a statute’s text is the first resource courts must consult

when construing a piece of legislation. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54

(1992). And Section 1228 contains no requirement of an imminent threat.

       Section 1228 is entitled “conditions for entry,” and it is cast in terms of a flat prohibition:

“no vessel . . . shall operate . . . if . . . .” 33 U.S.C. § 1228(a). There is nothing in the provision

that limits its applicability to exigent circumstances. Section 1228(a) enumerates the seven sets

of conditions under which a ship may not operate in United States waters, and none of them

describe a catastrophic or emergent situation. 33 U.S.C. § 1228(a). Under subsection (a)(1),

simply having a “history” of accidents, pollution incidents, or serious repair problems that “may

create a threat” to the marine environment is sufficient to render a foreign ship ineligible to

operate in U.S. waters. 33 U.S.C. § 1228(a)(1). The conditions in subparagraphs (5), (6), and

(7) regarding crew levels and crew qualifications also do not require an emergency before the

Coast Guard can act; there is nothing about the requirement that a ship must have “at least one

licensed deck officer on the navigation bridge who is capable of clearly understanding English”




                                                  15
that suggests that the conditions for operation listed in the statute are only triggered in times of

crisis. 33 U.S.C § 1228(a)(7).

       Furthermore, the legislative history plaintiffs cite does not support their interpretation.

They argue that Congress passed the PWSA “to cope with the increasing safety hazards of

maritime transportation and with pollution resulting from operation and casualties of vessels

carrying oil or other hazardous substances in bulk . . . What is most urgently needed is

legislation that will put the emphasis on prevention. . . .”). Pls.’ Mot. at 20 n.16 (citing U.S.

Congressional and Administrative News 92-339, p. 2768–69 and House of Representatives

Reports, Report 95-1384, p. 10). But if the statute’s stated purpose was to prevent emergencies,

it does not follow that the Coast Guard must wait for an emergency to materialize before it is

authorized to act.

       The cases plaintiffs cite do not support their argument either. They cite Llamera v.

United States, 15 Cl. Ct. 593, 598 (1988) for its holding that the PWSA authorizes the Coast

Guard to order a vessel to anchor pending correction of deficiencies. They also cite Chronos

Shipping v. U.S. Coast Guard, 957 F. Supp. 667, 669 (E.D. Pa. 1997), which upheld the

imposition of civil penalties for a violation of the PWSA for failure to report a cracked hull in a

cargo ship carrying crude oil. Pls.’ Mot. at 21. But neither case holds that the Coast Guard can

act only in the face of an imminent or actual emergency. In any event, the grounds for action

cited in the Order include the finding that the oily water separation equipment and the engine

room alarms were inoperable at the time, not just that they had been found to be out of

compliance with regulations in the past.




                                                16
                   2.   The Coast Guard’s authority to address violations of MARPOL is not
                        limited to penalties in Section 1232.

        Plaintiffs also contend that the Order overstepped the Coast Guard’s authority because it

disregards Section 1232 of the PWSA. Pls.’ Mot. at 24–25. This section, entitled “Enforcement

Provisions,” establishes civil penalties to be imposed on “[a]ny person who is found by the

Secretary, after notice and an opportunity for a hearing, to have violated this chapter or a

regulation issued hereunder,” as well as criminal penalties for willful and knowing violations. 33

U.S.C. § 1232(a)(1)–(b)(2). According to plaintiffs, the Coast Guard’s enforcement authority

under the PWSA is limited to the civil and criminal penalties in Section 1232.

        Plaintiffs’ argument is not supported by the language of the statute. First of all, Section

1232(a)(1) sets out penalties for violations of the PSWA itself. 33 U.S.C. § 1232(a)(1) (stating

the provision applies to those who have violated “this chapter or a regulation issued hereunder”).

There are provisions in the statute that call for vessels to meet specific operating or system

requirements that are set out in the statute or will be included in regulations issued by the

Secretary. See, e.g., 33 U.S.C. § 1223 and 1223a. So, the enforcement provisions in the statute

would cover violations of those requirements. But the provision is silent on the Coast Guard’s

authority to address violations of other U.S. laws or treaties – which is what the Coast Guard

found here. See Order at 2, AR 2 (imposing the Order because the Wilmina violated MARPOL

and APPS, not the PWSA). And there is nothing about the availability of sanctions for violations

of other duties created under the statute that means that the Coast Guard has no ability to

implement the clear and mandatory prohibition set out in Section 1228: “no vessel . . . shall

operate . . . .”




                                                17
       Furthermore, the civil and criminal penalties are not the only enforcement options

available under the act. The very section cited by the plaintiffs also establishes denial of entry as

an enforcement tool:

               Except as provided in section 1228 of this title, the Secretary may, subject
               to recognized principles of international law, deny entry into the navigable
               waters of the United States to any port or place under the jurisdiction of
               the United States or to any vessel not in compliance with the provisions of
               this chapter or the regulations issued hereunder.

33 U.S.C. § 1232(e). 6

       The Captain of the Port found that the Wilmina was in violation of both MARPOL and

APPS and that its non-compliance created “a threat to the marine environment of the United

States.” Order at 1, AR 1. Thus, the Order includes an implicit finding that the vessel violated

the provision in section 1228 prohibiting a vessel from operating in the navigable waters in the

United States if it “fails to comply with any applicable regulation issued . . . under any other

applicable law or treaty,” § 1228(a)(2), or it “has a history of . . . serious repair problems which

. . . creates reason to believe that [it] . . . may create a threat to the marine environment,” §

1228(a)(1). So, putting aside the question of whether those findings were fairly based on the

record, to the extent the Order denied the Wilmina entry into the ports and navigable waters of

the United States, it was authorized under the PWSA. What remains to be determined is whether

the Coast Guard’s fashioning of a three-year bar or the decision to condition the ship’s reentry on

twelve months of compliance with an approved environmental plan exceeded the scope of its

authority.


6      The use of the phrase “except as provided in section 1228 of this title” in section 1232(e)
is somewhat confusing since section 1228 – certificates of compliance – also creates a
mechanism for denying entry to ships that are out of compliance. But that section contains its
own exception, lifting the prohibition against entry and operation in U.S. waters for ships that
have demonstrated their environmental safety and return to compliance to the satisfaction of the
Secretary. Section 1232(e) thus seems to allow for that same possibility.
                                                 18
        B.     The Coast Guard’s Construction of the Statute is Permissible in Part

               1.      Section 1228 authorizes the Coast Guard to set conditions for the
                       Wilmina’s future ability to operate in U.S. waters, and the conditions
                       the Coast Guard established to reinstate the Wilmina certificate of
                       compliance are reasonable.

       Section 1228 of the PWSA speaks in mandatory terms. It states that no tanker like the

Wilmina “shall operate in the navigable waters of the United States” if it:

                   (1) has a history of accidents, pollution incidents, or serious repair
               problems which, as determined by the Secretary, creates reason to believe
               that such vessel may be unsafe or may create a threat to the marine
               environment; or

                  (2) fails to comply with any applicable regulation issued under this
               chapter, chapter 37 of title 46, or under any other applicable law or treaty;
               or

                   (3) discharges oil or hazardous material in violation of any law of the
               United States or in a manner or quantities inconsistent with the provisions
               of any treaty to which the United States is a party; or

                  (4) does not comply with any applicable vessel traffic service
               requirements; or

                   (5) is manned by one or more officers who are licensed by a
               certificating state which the Secretary has determined, pursuant to section
               9101 of title 46, does not have standards for licensing and certification of
               seafarers which are comparable to or more stringent than United States
               standards or international standards which are accepted by the United
               States; or

                   (6) is not manned in compliance with manning levels as determined by
               the Secretary to be necessary to insure the safe navigation of the vessel; or

                   (7) while underway, does not have at least one licensed deck officer on
               the navigation bridge who is capable of clearly understanding English.

33 U.S.C. § 1228(a). In light of the findings in the Order, defendants assert that the Wilmina met

the first three of the conditions in subsection (a), any one of which authorized the Coast Guard to

bar the ship from U.S. waters. Defs.’ Mot. at 40.




                                                19
       Furthermore, the statute expressly delegates broad authority to the Secretary to determine

whether and when a vessel should be deemed to be in compliance again. It provides that a vessel

“shall not” be subject to the conditions for entry:

               if the owner or operator of such vessel proves, to the satisfaction of the
               Secretary, that such vessel is no longer unsafe or a threat to the marine
               environment, and is no longer in violation of any applicable law, treaty,
               regulation or condition, as appropriate.

33 U.S.C. § 1228(b) (emphasis added).

       Thus, Congress left it to the Coast Guard to use its expertise as the regulatory agency

entrusted with the administration of the statute to determine when a ship may reenter U.S.

waters. See, e.g., Webster v. Doe, 486 U.S. 592, 600 (1988) (statute enabling an agency official

to act as he “shall deem . . . necessary” “fairly exudes deference” to official’s decisions); Conn.

Dept. of Children and Youth Servs. v. Dep’t of Health and Human Servs., 9 F.3d 981, 985 (D.C.

Cir. 1993) (decision made pursuant “to the satisfaction of the Secretary” only reviewable to the

extent the statute lists specific criteria that must be considered). And the Court must “give an

extreme degree of deference to the agency when it ‘is evaluating scientific data within its

technical expertise.’” Hüls Am., Inc. v. Browner, 83 F.3d 445, 452 (D.C. Cir. 1996), quoting

Int’l Fabricare Inst. v. EPA, 972 F.2d 384, 389 (D.C. Cir. 1992).

       Here, the imposition of the requirement that the Wilmina implement an environmental

compliance plan and complete a year of successful audits before being admitted to United States

ports again fell well within the scope of the Coast Guard’s authority under the statute. The Coast

Guard found that the ship’s “senior officers failed to . . . implement the safety management

system as required by the International Safety Management (ISM) Code, and 46 U.S.C. §3201 et

seq.,” and that the audit requirement of the ISM Code “is obviously not being properly

implemented by your company on your vessel.” Order at 1–2, AR 1–2. It concluded that this


                                                 20
failure can only be corrected with “an additional mandatory oversight system that requires

multiple vessel audits by independent auditors to verify compliance.”            Id.   In response to

plaintiffs’ appeal, Rear Admiral Landry explained that “successful implementation of an ECP

can only be demonstrated by a series of audits of a period of time that demonstrate that the

climate and practices on board the vessel comport to the intended goals of the ECP to minimize

the threat of pollution to the marine environment.” Feb. 11, 2011 Letter, AR 434. And Rear

Admiral James Watson also observed that one year “is generally the amount of time it takes to

properly implement an ECP.” Nov. 1, 2011 Letter, AR 501.

       The Coast Guard was tasked by Congress to ascertain to its satisfaction whether a ship

has brought itself back into compliance and whether it poses a threat to the marine environment

in the future. It was therefore granted the discretion, and it has the expertise, to define the sort of

showing that would enable it to draw that conclusion. Thus, under Chevron step two, the Court

finds that it was permissible for the agency to construe 33 U.S.C § 1228 to authorize it to call for

the development of an acceptable plan and twelve months of demonstrated compliance with that

plan as the conditions for the reissuance of the certificate of compliance. This conclusion is

reinforced by fact that Congress imposed the requirement in 46 U.S.C. § 3712 that the Secretary

inform the owner, operator, or manager of a vessel found not to be in compliance “how

compliance may be achieved.”

               2.      The Coast Guard does not have authority to ban a ship for a period of
                       time without providing a path for reinstatement of its certificate of
                       compliance.

       The Coast Guard also ordered, in the alternative, that the Wilmina would be excluded

from U.S. waters for three years if it did not implement a new ECP and complete one year of

successful audits.   According to defendants, the PWSA’s instruction that the Coast Guard

determine to its “satisfaction” when a ship is no longer in violation of subsection (a) gives the
                                                  21
agency the authority to simply ban a ship from U.S. waters without anything more. Defs.’ Mot.

at 40. But subsection (b) of Section 1228 uses the same automatic and mandatory language that

appears in subsection (a) when it states that “this section shall not apply if the owner or operator

. . . proves, to the satisfaction of the Secretary” that the ship is no longer unsafe or a threat and is

no longer violating applicable laws, treaties, regulations or conditions. 33 U.S.C. § 1228(b)

(emphasis added). In other words, the statute requires the prohibition in subsection (a) to be

removed when an owner or operator demonstrates that the safety hazard or threat or violation

that gave rise to the prohibition no longer exists. To be sure, the PWSA leaves it to the Coast

Guard to determine whether the offending condition no longer exists, and to determine what is

necessary to show that it no longer exists. But it does not allow the Coast Guard to make no

determination and simply lift the prohibition with the passage of time.

        Section 37 of Title 46 also requires the Coast Guard to do more. 7 That statute provides

that no foreign tank ship shall operate in U.S. waters without a certificate of compliance, and that

the Coast Guard “may” issue a certificate of compliance if it determines that a ship complies

with applicable laws. 46 U.S.C. § 3711. The permissive “may” in Section 3711(a) indicates that

the Coast Guard is not required to issue a certificate, but the next section directs that the Coast

Guard “shall” notify the owner or other party responsible for a vessel found not to be in


7       Although the Order relies on 46 U.S.C. § 3711 only for the Coast Guard’s authority to
revoke the Wilmina’s certificate of compliance and not for barring the ship from U.S. waters,
defendants cited 46 U.S.C. § 3711 in oral argument as support for the three-year ban. Hrg. Tr.
[Dkt. # 25] at 9 (answering whether there are regulations under the PWSA that authorize the
three-year bar, defense counsel stated, “I’m not aware of regulations that flesh this out. What I
would – what I would look at is 46 U.S. Code 3711(c). As the Court has mentioned, the
certificate shall be suspended if the secretary finds the vessel does not comply with the
conditions under which it was issued.”) Furthermore, a certificate of compliance certifies a
vessel’s compliance not only with chapter 37 of Title 46 but also with “all applicable U.S. and
international marine safety and environmental protection standards.” Compare 46 U.S.C. §
3711(a) with Certificate of Compliance at 2, AR 5–6.


                                                  22
compliance “and state how compliance may be achieved.” 46 U.S.C. § 3712 (emphasis added). 8

So if the Coast Guard revokes a ship’s certificate of compliance, it must advise the owners of

what they need to do to have the certificate reinstated.

       Defendants argue that the three year ban is meant to be the “stick” to the “carrot” of

allowing an ECP with one year of audits. Hr. Tr. at 17 (“[W]ithout something beyond the one-

year period, there’s simply no incentive to comply.”) They also assert that neither 46 U.S.C §

3711 nor the PWSA prescribe the amount of time a certificate can remain revoked or what

conditions a ship must satisfy before the Coast Guard reinstates a revoked certificate. So,

according to defendants, Congress left both issues to the agency’s discretion. But the statute

does make it clear what must be shown for a certificate to be reinstated; there is mandatory

language in 33 U.S.C. § 1228(b) stating that the prohibition in subsection (a) “shall not apply” if

an owner can prove to the agency’s satisfaction that the condition no longer exists. And there is

an express requirement in 46 U.S.C. § 3712 that the agency tell a ship’s owner “how compliance

may be achieved” if a certificate has been revoked. Accordingly, the three-year ban in the Order

does not derive from a permissible construction of the statute, and the Court holds that the Coast

Guard did not have the authority to impose that portion of the Order.

III.   THE COAST GUARD DID NOT VIOLATE PLAINTIFFS’ DUE PROCESS
       RIGHTS IN ISSUING THE ORDER

       Plaintiffs also contend that the Coast Guard violated their due process rights under the

Fifth Amendment of the U.S. Constitution by failing to provide them notice of the alleged

violation and the opportunity for a hearing. Pls.’ Mot at 27; see also Compl. ¶¶ 69–70. The due

process clause of the Fifth Amendment protects a finite range of property and liberty interests.

8       Rear Admiral Watson acknowledge this requirement in the agency’s final action: “When
barring a vessel from U.S. waters, the Coast Guard is required to notify the owner and operators
that the vessel is found not in compliance and state how compliance may be achieved.” Nov. 1,
2011 Letter, AR 501.
                                                 23
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972). It does not absolutely protect

these interests from deprivation, but only from deprivation without due process of law. Parratt

v. Taylor, 451 U.S. 527, 537 (1981); see also Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

To prevail on their due process claim, plaintiffs must demonstrate that they possessed a

constitutionally protected property or liberty interest and that they were deprived of that interest

without sufficient legal process. Gen. Elec. Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010).

       A.      Plaintiffs Have a Constitutionally Protected Property Interest

       To have a constitutionally protected property interest, plaintiffs must have more that an

“abstract need” for or “unilateral expectation” of that interest. Roth, 408 U.S. at 576. Plaintiffs’

interest must rise to the level of “a legitimate claim of entitlement” to implicate due process. Id.

Whether a legitimate claim of entitlement exists is determined by examining the law that creates

the claimed property interest. Id. at 577–78 (holding that property interests “are created and their

dimensions are defined by existing rules or understandings that stem from an independent source

such as state law – rules or understandings that secure certain benefits and that support claims of

entitlement to those benefits;” finding no property interest in the plaintiff’s employment at state

university because his terms of employment provided no basis to renew his contract); Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 538–40 (1985) (holding that respondents had property

right in continued employment because classified civil service employees were entitled to retain

their positions “during good behavior and efficient service” and they could not be dismissed

except for “misfeasance, malfeasance, or nonfeasance in office” under relevant statute). The




                                                24
Court must therefore analyze whether plaintiffs have a property interest in the Wilmina’s

certificate of compliance in the context of the statute that creates the claimed property interest. 9

       Plaintiffs compare a ship’s certificate of compliance to a driver’s license, arguing that

deprivation of the certificate triggered the procedural safeguards of the due process clause. Pls.’

Reply in Supp. of Cross-Mot. for Summ. J. [Dkt. # 24] (“Pls.’ Reply”) at 19. Defendants counter

that plaintiffs’ interest in the certificate was a mere unilateral expectation of current and

continued benefit and that plaintiff had no property interest in the certificate because

“government officials may grant or deny [the benefit] in their discretion.” Defs.’ Reply to Pls.’

Response to Mot. for Summ. J. and Resp. to Pls.’ Cross-Mot. for Summ. J. [Dkt. # 22] (“Defs.’

Reply”) at 17, quoting Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005).

9        Defendants contend that foreign vessels “have no particular right to do business in U.S.
ports,” and they point to the cases that hold there is no constitutionally protected right to import
goods excluded by Congress. Defs.’ Reply at 18, citing B-West Imports, Inc. v. United States,
880 F. Supp. 853, 863 (Ct. Int’l Trade 1995); Abby Dodge v. United States, 223 U.S. 166, 176
(1912); Buttfield v. Stranahan, 192 U.S. 470, 493 (1904); Arjay Assocs., Inc. v. Bush, 891 F.2d
894, 896 (Fed. Cir. 1989); Ganadera Indus. v. S.A.V. Block, 727 F.2d 1156, 1160 (D.C. Cir.
1984). But the cases defendants cite do not hold that there can never be a protected property
interest involving foreign commerce; they assess the particular statutory schemes involved to
determine if they create a property interest.
         In Ganadera, the D.C. Circuit analyzed the statutory scheme that prohibits the
importation of meat into the United States under specific conditions. 727 F.2d at 1159. That
scheme relies on foreign officials to certify the meat in the first instance. But even after a
foreign official certifies that a product qualifies, the USDA still may, at its discretion, terminate a
foreign producer’s right to import. Id. at 1159–60. The statute is analogous to the PWSA in that
it is prohibitory (no meat “shall be imported . . . if . . . ”) and that it commits the lifting of that
prohibition to the agency’s discretion. Under these circumstances, the court found no property
interest. But there is another statute at work here, in addition to the PWSA. Under the chapter
governing ships carrying dangerous liquid cargo, the federal government is involved in the
business of granting licenses, and the statute limits the agency’s authority to revoke a certificate
after it is granted. 46 U.S.C. §§ 3711–12. B-West Imports recognizes that to determine whether
a license to engage in commerce in the United States creates a constitutionally protected interest,
the claimed interest must be analyzed in the context of the statute, rules, or understandings that
create it. 880 F. Supp. at 863–864. The court analyzed a statute governing the importation of
defense articles, and it found no property interest because the statute gave no entitlement “to the
continued importation of defense articles once a license has been issued.” Id. at 864. Here, the
statute presumes the certificate will remain “valid” once issued for up to two years.

                                                  25
       While plaintiffs may have had no actionable property interest in the certificate before it

was granted, an interest did attach once the certificate was in hand. Section 3711 provides that a

vessel may only operate on U.S. navigable waters if it has been issued a certificate and that the

Secretary may issue one only after the vessel has been examined and found to be in compliance.

But once issued, a certificate is valid for up to 24 months, and it may be renewed. 46 U.S.C. §

3711. The Coast Guard can revoke it only if the Coast Guard finds the vessel does not comply

with the conditions under which it was issued. Id. Because the agency’s discretion to revoke is

not unfettered, but it must be based on a factual predicate, plaintiffs have a protected property

interest in the continued validity of the certificate. This conclusion is consistent with the D.C.

Circuit’s decision in 3883 Connecticut LLC v. District of Columbia, 336 F.3d 1068, 1072–73

(D.C. Cir. 2003), in which the court distinguished between cases involving a permit applicant’s

property interest and those involving a permit holder. The court ruled that a permit holder has

“more than a unilateral expectation” in the permit’s continued effect if the government’s

discretion to revoke or suspend it is limited. See also Barry v. Barchi, 443 U.S. 55, 64 n.11

(1979) (holding that plaintiff had property interest in horse trainer’s license because under state

law license could “not be revoked or suspended at the discretion of the racing authorities”).

Compare Fried v. Hinson, 78 F.3d 688, 692 (D.C. Cir. 1996) (finding no property interest in

plaintiff’s continued designation as a pilot examiner when that status could be freely rescinded);

Dorna v. Houle, 721 F.2d 1182, 1184–86 (9th Cir. 1983), cert. denied, 466 U.S. 950 (1984)

(finding no property interest in a permit issued to veterinarian to conduct tests on cattle “held at




                                                 26
the sufferance and will of the officials charged with administering the permit program”). 10

Accordingly, the Court holds that plaintiffs have a constitutionally protected property interest in

the Wilmina’s certificate of service and, therefore, it must go on to address the question of “what

process is due.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

       B.      Plaintiffs were Not Entitled to a Pre-Deprivation Hearing

       The Court’s ruling that plaintiffs had a protected property interest does not automatically

entitle them to notice and a hearing before revocation of the Wilmina’s certificate. All that is

required before the deprivation of a protected interest is “notice and opportunity for hearing

appropriate to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542

(1985) (emphasis added). “[D]ue process is flexible and calls for such procedural protections as

the particular situation demands.” Morrissey, 408 U.S. at 481. The process that is due is

determined by balancing three criteria: the private interest affected by the governmental action,

the probable value of additional procedural safeguards, and the government’s interest in the

existing procedure. Mathews v. Eldridge, 424 U.S. at 335. The balance of these factors shows

that plaintiffs were provided the process that was due.

               1.     Plaintiffs’ private interest affected by the Coast Guard’s action

       Plaintiffs’ private interest in maintaining the Wilmina’s certificate is not significant.

Although the certificate is necessary for the Wilmina to operate in U.S. waters, deprivation of the

certificate does not prevent the Wilmina from calling on ports outside U.S. waters, nor does it

prevent any other ships plaintiffs may have from calling on ports in the United States.


10      Defendants also assert that plaintiffs had no protected property interest because their
continued possession of the certificate depended on the ship continually meeting certain safety
and environmental standards. Defs.’ Reply at 17. But many recognized property interests are
subject to conditions that must be continuously met. See, e.g., Loudermill, 470 U.S. at 538–39
(continuing condition of “good behavior and efficient service” to retain employment); Mathews,
424 U.S. at 336 (continuing condition of disability to receive disability benefits).
                                                27
Accordingly, their private interest is not the type of significant property interest that requires the

full panoply of procedural process. Compare Goldberg v. Kelly, 397 U.S. 254, 260–61 (1970)

(deprivation of welfare benefits requires pre-deprivation notice and hearing), and Sniadach v.

Family Finance Corp., 395 U.S. 337, 342–43 (1969) (deprivation of all wages requires pre-

deprivation notice and hearing), with Barry v. Barchi, 443 U.S. 55, 64 (post-deprivation process

is sufficient to revoke professional license), and Dixon v. Love, 431 U.S. 105, 112–15 (post-

deprivation process is sufficient to revoke driver’s license of a truck driver).         This seems

particularly true in this case, where the certificate was only in hand for seventeen days before it

was revoked. 11 Therefore, the first Mathews factor does not indicate that plaintiffs were entitled

to a pre-deprivation hearing.

                2.      The probable value of additional procedure

        “Central to the evaluation of any administrative process is the nature of the relevant

inquiry.” Mathews, 424 U.S. at 343. The Supreme Court has found additional procedures to be

valuable when an agency’s determination turns on “issues of witness credibility and veracity.”

Id. at 343–44; see also Goldberg, 397 U.S. at 269. On the other hand, when determinations turn

on “routine, standard, and unbiased” evaluation of physical fact by specialists, the value of a pre-

deprivation hearing is lower. Mathews, 424 U.S. at 344, quoting Richardson v. Perales, 402

U.S. 389, 404 (1971). The issue is whether the procedures used present a “risk of an erroneous

deprivation” of plaintiffs’ interest. Mathews, 424 U.S. at 335. The number of layers of review

and the opportunities given to plaintiffs to submit arguments and supporting materials minimized

that risk in this case, as did the nature of the inquiry in question.


11     The fact that foreign companies are not automatically entitled to do business here and that
foreign commerce may be regulated by Congress, Abby Dodge, 223 U.S. at 176, further supports
the conclusion that plaintiffs’ property interest is not particularly significant.

                                                   28
       While plaintiffs have amassed considerable information to undermine the credibility of

the whistleblower who brought the issues to the Coast Guard’s attention, and to question his

motivation, the findings that led to the issuance of the Order were primarily based upon the

inspectors’ observations on board the ship and not the witness’s accounts of events at sea. The

Coast Guard conducted an on board investigation of the Wilmina and its pollution control

devices. It examined the physical evidence on the ship and found multiple problems. See Order

at 1, AR 1 (identifying inconsistencies found in the inspection with oil record book, inoperable

oily water separating equipment, oily sludge in the overboard discharge piping, and an oily

water bypass hose with flanges and oil inside of it). Thus, the Coast Guard’s determination

turned on routine, standard, and unbiased evaluation of physical fact by specialists, not on the

credibility of a witness account.

       Furthermore, the administrative appeals process was sufficient to satisfy the requirements

of due process in this case.        The Coast Guard’s appeals process provides opportunity for

reconsideration of an order, two levels of further appeal within the agency with the opportunity

for plaintiffs to provide documentation and evidence as well as rebuttal materials, and a final

appeal decided on the record. 33 C.F.R. Part 160.7(a)–(d). 12

       After the Coast Guard made its initial determination, plaintiffs appealed the Order and

Letter 16711 to the District Commander, explaining why they believed the Coast Guard’s

determination was incorrect. See Appeal of COPT Order No, 093-10 and Office of Vessel

Activity Order No. 16711, AR 191–225.13 They then appealed to the District Commander of the


12      The two intermediate levels of appeal, “as a matter of discretion, allow oral presentation
on the issues,” 33 C.F.R. Part 160.7(b), (c), although oral presentations were not allowed in
plaintiffs’ case. Oral argument would have been based on the written submissions in any event.

13    The Coast Guard treated the appeal, first, as a request for reconsideration. See Nov. 19,
2010 Letter, AR 188.
                                                 29
Eighth Coast Guard District, Dec. 9, 2012 Letter, AR 436–44; then to the Commander of the

Coast Guard Atlantic Area, Mar. 1, 2011 Letter, AR 488–95; and finally the Vice Admiral of the

Atlantic Area, Apr. 27, 2011 Letter, AR 509–518. Although this process was carried out in

writing, it afforded the plaintiffs a full opportunity to present arguments and refute the Coast

Guard’s findings. See Menkes v. U.S. Dep’t of Homeland Sec., 637 F.3d 319, 339 (D.C. Cir.

2011) (ruling that giving plaintiff multiple opportunities to be heard by the agency through the

submission of argument and evidence in writing was sufficient due process because “he had

ample opportunity to apprise the Coast Guard of his views”). Courts have found that the type of

post-deprivation administrative appeal provided here can satisfy due process, even when the

balance of the Mathews factors is more favorable to the plaintiff. See Mallen, 486 U.S. at 243

(ruling that post-deprivation hearing was constitutional in case involving appellee’s interest in

continued employment, which is “without doubt an important interest that ought not be

interrupted without substantial justification. We have repeatedly recognized the severity of

depriving someone of his or her livelihood.”). Thus, the second Mathews factor weighs against a

constitutional requirement for a pre-deprivation hearing.

               3.      The government’s interest

       “An important government interest, accompanied by a substantial assurance that the

deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify

postponing the opportunity to be heard until after the initial deprivation.” Mallen, 486 U.S. at

240. A post-deprivation hearing is constitutionally permissible when the government has taken

immediate action to avoid the risk of an immediate or continuing harm. See id. at 231–32

(immediate suspension of a bank manager after being charged with a finance-related crime due

to risk to depositors); Gilbert v. Homar, 520 U.S. 924, 932 (immediate suspension of a state

university police officer due to officer’s “position of public trust and high public visibility” after
                                                 30
being charged with a drug-related offense); Hodel v. Va. Surface Mining & Reclamation Ass’n,

452 U.S. 264, 299–303 (1981) (immediate cessation of mining activity due to risk to public

safety and the environment); N. Am. Cold Storage Co. v. City of Chicago, 211 U.S. 306, 315

(1908) (immediate seizure and destruction of allegedly tainted foodstuffs due to risk to public

health).

       Here, the government’s interest is strong and it weighs heavily in the balance. Congress

passed the PWSA because it found that “navigation and vessel safety, protection of the marine

environment, and safety and security of United States ports and waterways are matters of major

national importance.” 33 U.S.C. § 1221(a). If a ship is operating in a manner detrimental to the

marine environment and poses a risk to that environment and public safety, the government has a

strong interest in immediately addressing this problem. Indeed, the statute requires that it must.

Deprivation of property to “protect the public health and safety is ‘[o]ne of the oldest examples’

of permissible summary action.”      Hodel, 452 U.S. at 300, quoting Ewing v. Mytinger &

Casselberry, 339 U.S. 594, 599 (1950). And Congress seemed to recognize that distinction

when it specified in the enforcement provisions section of the PWSA that a civil monetary

penalty could only be imposed “after notice and opportunity for a hearing,” 33 U.S.C. § 1232(a),

but it included no such requirement when it granted the Secretary the authority to deny a vessel

entry to U.S. waters. 33 U.S.C. § 1232(e) (“the Secretary may” deny entry).

       Thus, after balancing the Mathews factors in this case, the Court holds that plaintiffs were

not entitled to a pre-deprivation hearing before the Coast Guard revoked the Wilmina’s

certificate of compliance and that they were provided the process that was due.

                                        CONCLUSION

       For the reasons explained above, the Court rules that the Coast Guard had the authority to

revoke the Wilmina’s certificate and to impose as conditions for its reissuance the submission of
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a satisfactory environmental plan and a year of successful audits. But it did not have the

authority to ban the ship from entering U.S. waters for a term of three years, and that term of the

Order is hereby declared invalid. The Court further rules that plaintiffs’ due process rights were

not violated.

       This resolves the question of the Coast Guard’s authority to act as it did, but not the

validity of its actions on the merits. Plaintiffs have also challenged the agency action on the

grounds that it was arbitrary and capricious and not supported by the record. The parties will be

directed by separate order to meet and confer and submit to the Court a proposed plan and

schedule for further proceedings on those issues.




                                         AMY BERMAN JACKSON
                                         United States District Judge

DATE: March 27, 2013




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