Menkes v. Department of Homeland Sec.

• Decision Date: 15 May 2007
• Docket Number: No. 05-5382.,05-5382.
• Citation: 486 F.3d 1307
• Parties: Richard J. MENKES, Appellant v. DEPARTMENT OF HOMELAND SECURITY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

486 F.3d 1307

Richard J. MENKES, Appellant v. DEPARTMENT OF HOMELAND SECURITY, et al., Appellees.

No. 05-5382.

United States Court of Appeals, District of Columbia Circuit.

Argued April 10, 2007.

Decided May 15, 2007.

Appeal from the United States District Court for the District of Columbia (No. 04cv01456).

Jonathan G. Axelrod argued the cause for appellant. On the briefs were Edward M. Gleason, Jr. and Richard W. Gibson.

Megan L. Rose, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Michael J. Ryan, Assistant U.S. Attorney, entered an appearance.

Before: SENTELLE and BROWN, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge SILBERMAN.

SILBERMAN, Senior Circuit Judge.

Richard J. Menkes, a ship pilot who sued the Coast Guard, appeals from the district court's decision holding that the court lacked jurisdiction over his APA claim and that his constitutional claims failed to state a cause of action. We reverse and direct a remand to the agency.

I

Appellant is a licensed pilot registered by the Coast Guard under the Great Lakes Pilotage Act of 1960. 46 U.S.C. § 9301 et seq. This case has its origin in a dispute between Menkes and the St. Lawrence Seaway Pilots' Association, a private business organization composed of ship pilots who provide pilotage service on the waters of the Great Lakes.

The Great Lakes Pilotage Act generally requires that U.S. or Canadian registered pilots navigate certain types of vessels through designated waters of the Great Lakes. Pursuant to the Act, the President of the United States has designated three areas in the Great Lakes where navigation by a registered pilot is required: District One, District Two, and District Three. To facilitate efficient pilotage in these designated areas, the Act permits the Coast Guard to establish "pilotage pools," which are to be formed by "voluntary" associations of U.S. registered pilots.¹ The Coast Guard authorized the Association to form such a pool in District One.

Menkes was a member of the Association and its pilotage pool until he quit the Association in December 2000 due to unexplained professional differences and mounting personal animosity between Menkes and other members of the Association. Previously, Menkes had written to Frank J. Flyntz, the Coast Guard's Director of Great Lakes Pilotage, to inform him that he (Menkes) intended to quit the Association, but that he wanted to continue service as a registered pilot in District One and that he "maintain[ed] [his] right to be dispatched."² Flyntz responded, telling Menkes that his resignation from the Association "has no effect on your status as a Registered Pilot," and "[t]herefore you will be placed on the St. Lawrence River tour-de-role [i.e., pilotage assignment system] at the beginning of the [2001 navigation] season." Flyntz also noted that he expected Menkes would continue to use the Association's infrastructure and equipment, and that in accordance with Coast Guard regulations, see 46 C.F.R. § 401.340(a)-(c), Menkes would execute a written authorization allowing the Association to bill Menkes for services and require his compliance with the Association's rules and procedures.

In March of the following year, Flyntz wrote to the Association President, Roger Paulus, in response to Paulus's letter concerning Menkes's status for the 2001 navigation season. Flyntz stated that "Captain Menkes will continue to serve as a pilot on the St. Lawrence River tour-de-role," and that he would "be available for dispatch whether or not he belongs to a pilotage pool." He pointed out that "[a] pilotage pool is a voluntary association of registered pilots," (citing 46 U.S.C. § 9304 (emphasis in original)), and that "[t]here is no mandatory requirement in statute or regulation that requires Great Lakes registered pilots to belong to a pool in order to provide pilotage service." Flyntz further noted that Menkes's "resignation from the Association does not . . . provide any basis for the Coast Guard to deny him the opportunity to continue to earn his livelihood as a U.S. registered pilot," (emphasis added) and that Menkes had "a vested property right in his certificate of registration" (emphasis added) that the Coast Guard could not revoke merely because Menkes "does not belong to a pilotage pool." Flyntz went on to say: "Furthermore, . . . there is a serious need for qualified pilots in District 1 and . . . the Association has not physically provided adequate pilotage service in accordance with 46 C.F.R. § 401.720(b)."³ That section of the Coast Guard regulations permits the Director of Great Lakes Pilotage to order a registered pilot to provide pilotage service whenever an association cannot provide service due to "physical or economic inability." Then, invoking his authority under Coast Guard regulations, including § 401.720, Flyntz announced his decision to dispatch Menkes as "an independent pilot" in District One. The Association appealed Director Flyntz's decision to J.P. High, the Coast Guard's Director of Waterways Management, who denied the appeal.

Thereafter, Paul M. Wasserman became Acting Director (and subsequently Director) of Great Lakes Pilotage, and he apparently had a somewhat different view. On December 29, 2003, Wasserman, responding to another Association inquiry concerning Menkes's status as an independent pilot in District One, wrote to both Paulus and Menkes. Wasserman rejected the Association's argument that a "change in circumstances" warranted a reversal of Flyntz's 2001 decision to place Menkes on the tour-de-role, noting that the Association was still not providing adequate pilotage service. Wasserman affirmed Flyntz's determination from 2001 and renewed that determination for the 2003 navigation season. But he wrote that at the "end of the season, . . . my determination, and Captain Menkes' appointment as an independent pilot, will naturally expire." This statement is the first indication from the Coast Guard that Menkes's status as an independent pilot was on a season-to-season basis. Wasserman added that he would continue to evaluate the Association's pilotage service in order to determine whether independent pilots were needed for the 2004 navigation season.

Then, in January 2004, Wasserman responded to appellant's further letters, stating:

Your letters imply that your status as an independent pilot in District One is a permanent circumstance . . . . [Y]ou were appointed as an independent pilot on March 7, 2001, because [Director Flyntz] found that the Association was not able to provide adequate pilotage service at that time . . . . Your status as an independent pilot has been predicated on a determination by my office that an extraordinary circumstance exists, which I have not made for any future navigation seasons. Therefore, it would be inappropriate for you to consider your status as an independent pilot in District One to be a permanent circumstance.

The Coast Guard, at that point, appears to have set forth two modifications to its policy. Wasserman wrote (1) that Menkes's appointment expired on an annual basis and (2) that any new appointment would depend on the Director's determination, not just that the Association has a "physical or economic inability" to provide service, but also that "extraordinary circumstances" exist necessitating the appointment of an independent pilot, which seems to be a stricter standard.

Menkes appealed Wasserman's decision to Assistant Commandant T.H. Gilmour. Gilmour denied the appeal, essentially reiterating Wasserman's position. Gilmour noted, however—rather suggestively—that "Captain Menkes is free to apply to the SLSPA for membership in that association. He is also free to apply to other pilotage associations within the Great Lakes since he will have a valid license and a valid certificate of registration as a U.S. registered pilot on the Great Lakes." The letter concluded by noting that the denial of Menkes's appeal "constitutes final agency action."

Menkes filed suit in federal district court in August 2004 seeking, inter alia, reinstatement of his status as an independent pilot and an order prohibiting defendants from requiring Menkes "to become a member of the Association as a condition of working." Menkes's complaint lists three claims—that the Coast Guard's action (1) violated his associational rights under the First Amendment; (2) violated his Fifth Amendment right to due process; and (3) was in violation of the APA. The district court granted defendants' motion to dismiss. See Menkes v. Dep't of Homeland Sec., 402 F.Supp.2d 204, 210 (D.D.C. 2005).

The court addressed each of Menkes's three claims in turn, beginning with the APA challenge. Although recognizing that there is a strong presumption of reviewability under the APA, the court explained that APA review is not available if agency action is "committed to agency discretion by law." See 5 U.S.C. § 701(a)(2). A matter is committed to agency discretion when there is a lack of judicially manageable standards to guide meaningful review. Steenholdt v. F.A.A., 314 F.3d 633, 638 (D.C.Cir.2003). The court reasoned that the regulations, by specifically giving the Director sole authority to make determinations about the need for non-association pilots, failed to provide a judicially manageable standard by which to review such a decision. Thus, whether additional pilots were required—or, alternatively, whether the Association was providing adequate pilotage service—were questions within the unreviewable discretion of the agency.

The district court also disposed of Menkes's constitutional claims. With respect to Menkes's First Amendment association claim, the court concluded that "defendants do not require the plaintiff to join the [Association] as a condition to employment," 402 F.Supp.2d...