Channeling Coast Guard S&R Challenges to the NTSB Review Scheme While Treating Raise-of-Grade Denials as Independently Reviewable Final Agency Action

1. Introduction

Mullen v. Mullin (5th Cir. Sept. 3, 2026) concerns a pro se merchant vessel captain, Edward C. Mullen, III, challenging (i) the Coast Guard’s ongoing Suspension and Revocation (“S&R”) proceeding seeking revocation of his Merchant Mariner Credential (“MMC”), and (ii) a separate Coast Guard decision denying his application for a “raise of grade” on that MMC.

The dispute arises after Congress enacted two provisions aimed at sexual misconduct risks in the merchant marine: 46 U.S.C. § 7511 (mandatory or discretionary denial of MMC-related credentials to certain convicted sex offenders) and 46 U.S.C. § 7704a (revocation consequences tied to “official findings” of sexual assault/harassment within stated lookback periods). The Coast Guard denied Mullen’s raise-of-grade application based on a 2006 Louisiana forcible rape conviction and separately initiated S&R revocation proceedings.

The principal issues were jurisdictional and remedial: (1) whether a federal district court may entertain challenges to an ongoing Coast Guard S&R action before the administrative process concludes, and (2) whether the district court may review the denial of a raise-of-grade application as “final agency action,” and, if so, whether the denial is lawful.

2. Summary of the Opinion

  • S&R claims: The Fifth Circuit affirmed that the district court lacked subject matter jurisdiction because the S&R process is governed by a special statutory review scheme requiring an ALJ hearing, Coast Guard Commandant review, NTSB review, and only then judicial review in a court of appeals. Because Mullen’s S&R matter had not even been decided by the ALJ, there was no “final agency action” suitable for APA review.
  • Remedy for S&R claims: The court remanded for the limited purpose of correcting the judgment to reflect dismissal without prejudice (the required disposition when dismissal rests on lack of subject matter jurisdiction).
  • Raise-of-grade claims: The Fifth Circuit held the district court did have subject matter jurisdiction because the denial was “final agency action” under 46 C.F.R. § 1.03-40 and no comparable special review scheme displaced district court review. Nevertheless, the court affirmed dismissal with prejudice on the merits, concluding § 7511 validly required/allowed denial notwithstanding the age of the conviction.

3. Analysis

3.1. Precedents Cited

Subject-matter jurisdiction standards

  • McLin v. Twenty-First Jud. Dist., 79 F.4th 411 (5th Cir. 2023) and Williams v. Wynne, 533 F.3d 360 (5th Cir. 2008): These cases supplied the Fifth Circuit’s framework for reviewing Rule 12(b)(1) dismissals de novo and placing the burden on the party asserting jurisdiction. They matter because the panel treated jurisdiction as a threshold issue and separated jurisdictional questions (S&R) from merits review (raise-of-grade).

“Final agency action” under the APA

  • Bennett v. Spear, 520 U.S. 154 (1997): The court applied Bennett’s two-part test for finality—(1) consummation of decisionmaking and (2) determination of rights/obligations or legal consequences. Bennett drove the split result: no finality for an unadjudicated S&R complaint, but finality for the raise-of-grade denial expressly designated as final by regulation.

Special statutory review schemes and implied preclusion of district court jurisdiction

  • Axon Enter., Inc. v. Fed. Trade Comm'n, 598 U.S. 175 (2023) and Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994): These cases furnished the governing principle that Congress may “implicitly” preclude district court jurisdiction by routing challenges through an agency process culminating in court-of-appeals review. The Fifth Circuit used Axon’s explanation that the agency can “fill in for the district court,” with appellate review to follow, to characterize Coast Guard S&R proceedings as precisely the kind of channeling regime that forecloses district court interference midstream.
  • Bank of Louisiana v. Fed. Deposit Ins. Corp., 919 F.3d 916 (5th Cir. 2019): Cited for the proposition that preclusion of district court jurisdiction can be explicit or implicit, reinforcing that the S&R scheme need not contain a “no district court review” sentence to bar district court involvement.
  • Elgin v. Dep't of Treasury, 567 U.S. 1 (2012): Used (via Axon) to confirm that meaningful judicial review does not require a district court; appellate review after administrative exhaustion can suffice, undermining Mullen’s attempt to secure early district court adjudication of constitutional claims.

Coast Guard S&R review pathway precedents

  • Dresser v. Meba Med. & Benefits Plan, 628 F.3d 705 (5th Cir. 2010): This was central. The panel invoked Dresser’s description of the S&R appellate ladder—ALJ → Commandant → NTSB → court of appeals—to show that S&R outcomes have an “adequate remedy” outside district court, making APA district-court review inapplicable.
  • Dresser v. Ingolia, 307 F. App'x 834 (5th Cir. 2009): Used as a direct analogue for lack of final agency action where matters remain pending within the Coast Guard’s internal appellate process (there, before the Commandant; here, even earlier—before any ALJ decision).

Disposition when jurisdiction is absent

  • Mitchell v. Bailey, 982 F.3d 937 (5th Cir. 2020): Reinforced the settled rule that dismissals for lack of subject matter jurisdiction must be without prejudice. This compelled the panel’s limited remand to correct the “with prejudice” language as to the S&R claims.

Affirmance on any ground supported by the record

  • Ballew v. Cont'l Airlines, Inc., 668 F.3d 777 (5th Cir. 2012): Authorized the Fifth Circuit to affirm the raise-of-grade dismissal on the merits even though the district court primarily dismissed for lack of jurisdiction.

Merits authority on § 7511’s scope and retroactivity concerns

  • Reid v. Mayorkas, 759 F. Supp. 3d 15 (D.D.C. 2024): The Fifth Circuit adopted Reid’s reasoning to reject a narrow reading of § 7511. Reid treated renewals (and by analogy other issuances) as credentials “to be issued,” and emphasized that § 7704a’s temporal limits do not constrain § 7511, which serves a distinct protective purpose. This district court decision effectively became the persuasive backbone for rejecting Mullen’s constitutional and APA-based objections to § 7511’s application to a post-enactment credential decision grounded on a pre-enactment conviction.

3.2. Legal Reasoning

A. Why the district court lacked jurisdiction over the ongoing S&R proceeding

  1. No “final agency action”: Applying Bennett v. Spear, the S&R complaint and scheduled hearing were interlocutory. With no ALJ decision (the first adjudicator in the chain), the Coast Guard had not “consummated” decisionmaking and no definitive legal consequences had yet flowed.
  2. Congress created a channeling regime: The opinion details an integrated review scheme: ALJ hearing on the record (APA hearing provisions incorporated by 46 U.S.C. § 7702(a)) → appeal to the Commandant (final Coast Guard action by regulation) → exclusive appeal to the NTSB → judicial review in a court of appeals (49 U.S.C. § 1153(a)). Under Axon Enter., Inc. v. Fed. Trade Comm'n and Thunder Basin Coal Co. v. Reich, such a structure implicitly precludes district court intervention.
  3. Mullen’s claims were the kind the agency can address: The panel distinguished “structural” constitutional challenges (more likely to bypass exhaustion under Axon) from Mullen’s fact-bound, statute-interpretation objections to the Coast Guard’s application of merchant-marine licensing statutes. That categorization supported channeling the dispute through the S&R process.
  4. Meaningful judicial review remains available: Relying on Axon (and Elgin v. Dep't of Treasury), the court emphasized that appellate review after the administrative process is ordinarily adequate; district court participation is not required to preserve meaningful review.

B. Why the district court had jurisdiction over the raise-of-grade denial

  1. Express regulatory finality: The court treated 46 C.F.R. § 1.03-40 as dispositive: after reconsideration and appeal, “The decision of the Director of Commercial Regulations and Standards . . . will constitute final agency action.” This satisfied 5 U.S.C. § 704 finality under Bennett v. Spear.
  2. No parallel special review scheme displacing district court review: Unlike S&R matters, the raise-of-grade statutes/regulations did not route review through ALJ → Commandant → NTSB → court of appeals. The district court’s reliance on the S&R review provisions (including 49 U.S.C. § 1153(a)) was therefore mismatched to this separate agency action.

C. Why the raise-of-grade claims failed on the merits

  1. § 7511 reaches credentials “to be issued” and is not limited by § 7704a’s lookback limits: Following Reid v. Mayorkas, the court read § 7511 naturally to cover issuance decisions (including, by the panel’s acceptance of Reid’s logic, the relevant issuance action implicated by a raise-of-grade request). The court rejected importing § 7704a’s temporal limits into § 7511, describing them as “entirely separate” provisions.
  2. Retroactivity and punitive-intent objections rejected: The court was not persuaded that Congress’s “primary intent” was punishment (a framing relevant to Ex Post Facto/Bill of Attainder-type arguments), instead viewing § 7511 as protective of mariners’ safety and welfare.
  3. Due process was adequate: The Coast Guard provided notice of the denial grounds, permitted written responses and reconsideration, and allowed Mullen to contest § 7511’s application. The panel also noted key non-disputes: Mullen did not contest the validity of the conviction or that the Louisiana offense was “substantially similar” to covered sexual offenses for § 7511(a) purposes.

3.3. Impact

  • Sharper jurisdictional line between S&R enforcement and credential-issuance decisions: The opinion clarifies that S&R challenges are channelled through the Coast Guard/NTSB appellate ladder and are not reviewable in district court mid-proceeding, while certain non-S&R credential decisions (here, raise-of-grade denials) may be immediately reviewable when regulations designate them “final agency action” and Congress has not created an exclusive alternative review pathway.
  • Procedural housekeeping with real consequences: The remand to change the S&R dismissal to “without prejudice” matters for litigants seeking later review after exhaustion; it prevents an erroneous claim-preclusion narrative from attaching to a jurisdictional dismissal.
  • Persuasive alignment with Reid v. Mayorkas on § 7511: Although unpublished and nonprecedential under circuit rules, the decision signals how the Fifth Circuit is likely to treat arguments that § 7511 is constrained by § 7704a’s temporal limits or that applying § 7511 to older convictions is unconstitutional when applied to post-enactment credential decisions.
  • Practical effect on mariners with prior sex offense convictions: The reasoning supports the Coast Guard’s authority (and, where § 7511(a) applies, obligation) to deny new credential actions even when the conviction is remote in time, at least where the statutory conditions are met and the agency provides basic process.

4. Complex Concepts Simplified

Final agency action (APA)
Courts generally review only agency decisions that are finished and have real legal effects. An accusation or a pending case (like an uncompleted S&R prosecution) is usually not “final.” A denial letter explicitly labeled “final agency action” after completion of the agency’s internal appeal steps often is “final.”
Special statutory review scheme / channeling
Sometimes Congress creates a specific route for review: you must litigate inside the agency first, then appeal inside the agency, then (sometimes) to another expert body, and only then can you go to a federal court—often directly to a court of appeals. When that route exists, district courts are commonly “precluded” from hearing the dispute early.
Dismissal “without prejudice” vs. “with prejudice”
“Without prejudice” means the court is not deciding the claim’s merits and the plaintiff may refile in a proper forum/time. “With prejudice” is a merits-ending disposition. If a court lacks subject matter jurisdiction, it generally must dismiss without prejudice.
S&R proceeding
A Coast Guard enforcement case to suspend or revoke a mariner’s credential, decided first by an ALJ, then subject to administrative appeals (Commandant, then NTSB), with judicial review only after completion of that process.
Raise of grade
An application to upgrade the level/authority on an existing mariner credential. Here, it generated a separate, final credential decision distinct from the enforcement-style S&R case.
Ex Post Facto / Bill of Attainder (as argued by Mullen)
These constitutional doctrines generally prohibit retroactive criminal punishment and legislative punishment targeted at individuals without a judicial trial. The panel’s analysis treated § 7511’s purpose as protective (credentialing/safety) rather than punitive, and emphasized the availability of process around the denial decision.

5. Conclusion

Mullen v. Mullin reinforces two practical rules in federal administrative litigation involving Coast Guard mariner credential actions: (1) challenges to ongoing Coast Guard S&R proceedings must proceed through the designated administrative and NTSB review scheme before any judicial review, and district courts therefore lack jurisdiction midstream; and (2) certain credentialing decisions outside that S&R enforcement ladder—here, a raise-of-grade denial expressly labeled “final agency action” by regulation—may be reviewable in district court, though the Fifth Circuit found § 7511 lawfully supported denial on the merits.

The decision’s most durable significance is its careful separation of (a) enforcement proceedings governed by exclusive, channeling review structures and (b) standalone credentialing denials that are final, immediately consequential agency actions—an analytical template likely to recur in future Coast Guard credential disputes.