486 F.3d 1307 (D.C. Cir. 2007), 05-5382, Menkes v. Department of Homeland Sec.

Docket Nº:05-5382.
Citation:486 F.3d 1307
Party Name:Richard J. MENKES, Appellant v. DEPARTMENT OF HOMELAND SECURITY, et al., Appellees.
Case Date:May 15, 2007
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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486 F.3d 1307 (D.C. Cir. 2007)

Richard J. MENKES, Appellant



No. 05-5382.

United States Court of Appeals, District of Columbia Circuit.

May 15, 2007

Argued April 10, 2007.

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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.


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.


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

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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

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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 enquiry 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...

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