402 F.Supp.2d 204 (D.D.C. 2005), Civ. A. 04-1456, Menkes v. United States Dept. of Homeland Sec.

Docket Nº:Civ. A. 04-1456
Citation:402 F.Supp.2d 204
Party Name:Menkes v. United States Dept. of Homeland Sec.
Case Date:September 29, 2005
Court:United States District Courts, District of Columbia
 
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Page 204

402 F.Supp.2d 204 (D.D.C. 2005)

Richard J. MENKES, Plaintiff,

v.

UNITED STATES DEP'T OF HOMELAND SEC., et al., Defendants.

No. Civ.A. 04-1456 RJL.

United States District Court, District of Columbia.

Sept. 29, 2005

Page 205

Edward M. Gleason, Jr., Beins, Axelrod & Kraft, P.C., Barbara Jean Kraft, Kraft Eisenmann Alden, PLLC, Washington, DC, for Plaintiff.

Megan Lindholm Rose, United States Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

LEON, District Judge.

[# 4]

Plaintiff, Richard Menkes, has brought the instant action against the defendants, the United States Department of Homeland Security, the United States Coast Guard and Assistant Commandant T.H. Gilmour, seeking an order reinstating his status as an "independent pilot" in District One for current and future navigation seasons. Presently before the Court is defendants' Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) or, in the alternative, for summary judgment. Upon due consideration of the parties' submissions, the relevant law, and the entire record herein, the Court GRANTS the defendants' motion.

FACTUAL BACKGROUND

The current system of pilotage in the Great Lakes and St. Lawrence Seaway area is regulated by the Great Lakes Pilotage Act of 1960, codified at 46 U.S.C. Chapter 93 (2000). See 46 C.F.R. Chapter III, Parts 401-04 (2005) (setting forth the statute's implementing regulations). 1 Plaintiff, Captain Richard Menkes, was licensed and registered by the U.S. Coast Guard as a pilot in District One, which encompasses the Great Lakes and St. Lawrence Seaway. Pl.'s Compl. at 1. The plaintiff was a member of the St. Lawrence Seaway Pilots' Association ("SLSPA") and of their authorized pilotage pool in District One until he resigned from

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the association in December 2000. Pl.'s Compl. at 4 (citing A.R. at 3). The defendants, U.S. Department of Homeland Security ("Homeland Security") and U.S. Coast Guard ("Coast Guard"), are the federal agencies that regulate the pilotage services in District One. Pl.'s Compl. at 2. Defendant Assistant Commandant T.H. Gilmour is the officer responsible for the administration of the Coast Guard's Great Lakes Pilotage program and procedures. Pl.'s Compl. at 2.

In July 2000, the plaintiff informed the Director of Great Lakes Pilotage for the Coast Guard ("the Director") that he wanted to provide independent pilot services in District One, even though he was no longer a member of the SLSPA. Defs.'s Mot. to Dismiss at 4 (citing A.R. at 70). On February 26, 2001, the Director dispatched plaintiff to provide pilotage services in District One during the 2001 navigation season and informed plaintiff that his resignation from the SLSPA had no effect on his status as a registered pilot. Defs.'s Mot. to Dismiss at 4 (citing A.R. at 77). The Director additionally notified the SLSPA of plaintiff's status for the 2001 navigation season and cited his authority under 46 C.F.R. § 401.720 2 to dispatch the plaintiff in instances when the SLSPA was not providing adequate pilotage service. Defs.'s Mot. to Dismiss at 4 (citing A.R. at 63-64).

Dissatisfied with the prospect of an independent pilot working in District One, the SLSPA appealed the Director's decision to his supervisor, the Director of Waterways Management for the Coast Guard. Defs.'s Mot. to Dismiss at 4 (citing A.R. at 57, 60-62). On May 22, 2001, the Director of Waterways Management upheld the Director's decision and authority to dispatch the plaintiff until such time as the SLSPA was able to restore safe and efficient pilotage service. Defs.'s Mot. to Dismiss at 4 (citing A.R. at 57-59).

The plaintiff remained as an independent pilot through the 2003 navigation season, at which time it naturally expired and the Director informed the SLSPA and the plaintiff that his status would not continue for the 2004 season. Defs.'s Mot. to Dismiss at 4 (citing A.R. 9-10). On January 22, 2004, the Director clarified that the plaintiff's previous status as an independent pilot was not a "permanent circumstance" but that it was "predicated" upon his "determination" that the SLSPA could not provide adequate pilotage service at that time. Pl.'s Compl. at 9 (citing A.R. 6).

On January 28, 2004, the plaintiff timely appealed the Director's decision that the determination to dispatch plaintiff as a pilot in District One during the 2003 season would expire at the end of the 2003 navigation season. Plaintiff argued that the SLSPA could not compel the plaintiff's participation in their association and that the regulations do not allow the Coast Guard to show "employment preference" for registered pilots in associations. Pl.'s Compl. at 7 (citing A.R. 3-5).

On April 12, 2004, Rear Admiral T.H. Gilmour, Assistant Commandant for Marine Safety, Security and Environmental Protection, upheld the Director's decision. Defs.'s Mot. to Dismiss at 5 (citing A.R. 1-2). He reiterated that only under "extraordinary circumstances" (e.g., when a pool, like the SLSPA, is not providing pilotage services), will the Director take

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action to order any U.S. registered pilot to provide pilotage services. Defs.'s Mot. to Dismiss at 5 (citing A.R. 1-2). The Assistant Commandant further stated that he would continue to monitor the circumstances to determine if independent pilotage services would be required for the 2004 season. Defs.'s Mot. to Dismiss at 5 (citing A.R. 1-2). Plaintiff filed the instant complaint against the defendants on August 26, 2004, seeking an order reinstating his status as an "independent pilot" in District One for current and future...

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