662 F.Supp.2d 62 (D.D.C. 2009), Civ. 04-1456, Menkes v. Department of Homeland Security

Docket Nº:Civil Case 04-1456.
Citation:662 F.Supp.2d 62
Opinion Judge:RICHARD J. LEON, District Judge.
Party Name:Richard J. MENKES, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, United States Coast Guard, and Assistant Commandant James F. Amos,[1] Defendants.
Attorney:Edward M. Gleason, Jr., Jonathan G. Axelrod, Beins, Axelrod, Gleason & Gibson, P.C., Washington, DC, for Plaintiff. Claire M. Whitaker, United States Attorney's Office, Washington, DC, for Defendants.
Case Date:September 25, 2009
Court:United States District Courts, District of Columbia

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662 F.Supp.2d 62 (D.D.C. 2009)

Richard J. MENKES, Plaintiff,


DEPARTMENT OF HOMELAND SECURITY, United States Coast Guard, and Assistant Commandant James F. Amos, 1 Defendants.

Civil Case No. 04-1456.

United States District Court, District of Columbia.

September 25, 2009

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Edward M. Gleason, Jr., Jonathan G. Axelrod, Beins, Axelrod, Gleason & Gibson, P.C., Washington, DC, for Plaintiff.

Claire M. Whitaker, United States Attorney's Office, Washington, DC, for Defendants.

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RICHARD J. LEON, District Judge.

This case concerns a dispute between Richard J. Menkes (" Menkes" ), a ship pilot, and an association of registered pilots responsible for ensuring pilotage services in certain areas of the Great Lakes pursuant to a delegation from the Coast Guard. Menkes, in essence, wants to be a ship pilot on certain areas of the Great Lakes without being a member of the St. Lawrence Seaway Pilots' Association (the " Association" ).

In 2004, Menkes filed suit against the Department of Homeland Security, the United States Coast Guard, and then-Assistant Commandant T.H. Gilmour, alleging they violated his constitutional and statutory rights in deciding that the Coast Guard's order to dispatch him would expire at the end of 2003, and that the Coast Guard would thus have to determine whether his services would be needed for 2004.2 This Court granted the Coast Guard's summary judgment motion. But the Court of Appeals reversed and remanded the case to this Court to issue an order remanding the case back to the Coast Guard for further proceedings and an adequate explanation of the basis for its decision and the basis for its interpretation of the apposite statutes and regulations. Menkes v. Dep't of Homeland Sec., 486 F.3d 1307 (D.C.Cir.2007).

On remand, the Coast Guard again denied Menkes's claims, but provided further explanation for its previous decision. Before this Court are new Motions for Summary Judgment filed by the parties. Specifically, Menkes argues the Coast Guard violated the Administrative Procedures Act, his First Amendment's guarantees of free association, and the Due Process Clause. This Court disagrees and DENIES Menkes's motion and GRANTS the defendants' motion.


A pilot is required for certain types of ships to navigate through specific areas of the Great Lakes. See 46 U.S.C. §§ 9301 et seq.; see also 46 C.F.R. § 401.300(a). To provide pilotage services efficiently, the statute allows the Coast Guard to establish " pilotage pools" formed by associations of registered pilots. 46 U.S.C. § 9304. Under the Coast Guard's regulations, the Coast Guard can order a non-Association member to provide pilotage services when the Association is not providing pilotage services " because of a physical or economic inability to do so." 46 C.F.R. § 401.720(b). According to the Coast Guard, this regulation gives associations, and not the Coast Guard, the primary responsibility for dispatching pilots, and forecloses the Coast Guard's ability to appoint independent pilots unless the Association is incapable of providing services. According to Menkes, the Coast Guard had been dispatching him for three years without consistently applying or interpreting this regulation, thus indicating that its decision to allow his dispatch order to expire before the 2004 season was arbitrary and capricious.

Menkes quit the Association in 2000, but he wanted to continue providing pilotage services as an independent pilot. The

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Coast Guard's Director of Great Lakes Pilotage at the time, Frank J. Flyntz, determined that the Coast Guard could continue to dispatch Menkes notwithstanding his lack of Association membership. In explaining his decision, Flyntz stated that under the statute, the Coast Guard may authorize associations that are " voluntary." (Flyntz letter, 03/07/01, Joint Appendix [Dkt. # 23-2] (" JA" ) 120) (citing 46 U.S.C. § 9304)). Flyntz also stated Menkes had " a vested property right in the certificate of registration." ( Id. ) Although the Coast Guard had not yet clarified its interpretation of Flyntz's decision when this case was before our Court of Appeals, the Coast Guard has since explained that Flyntz's broad interpretation of the regulation was never the Coast Guard's official interpretation. Indeed Flyntz's decision was appealed, and upheld on much narrower grounds. (Agency Decision on Remand at 10 [Dkt. # 21-2].)

In upholding Flyntz's decision that Menkes could continue to be dispatched, then-Director Jeffrey High (" Mr. High" ) did not base his decision on either the " voluntary" nature of associations or a finding that Menkes had a property right in being dispatched. To the contrary, Mr. High determined that under the regulation, Flyntz had the authority to dispatch Menkes because the Association was unable to provide adequate pilotage services. (High letter, 5/22/01 at 3 (JA 116).)

In 2003, the Association wrote to Flyntz's replacement, Paul M. Wasserman, and explained that the Association could provide adequate services and thus the Coast Guard lacked authority under the regulation to appoint independent pilots. (St. Lawrence Seaway Pilots' Association letter, 8/20/03 (JA 87).) When Wasserman responded, he never disputed that he lacked authority to appoint independent pilots if the Association provided adequate services, (Wasserman 10/22/03 letter (JA 83-84)), contending instead that the Association remained unable to provide adequate services because management policies had led to an attrition problem. ( Id. ) Thus, because the Coast Guard was incapable of providing adequate services, Wasserman concluded that it could continue to appoint Menkes as an independent pilot.

In December 2003, Menkes wrote Wasserman complaining about the Association and seeking the Coast Guard's approval to take steps to prepare for being dispatched in the 2004 season as an independent pilot. (Menkes letter, 12/15/03 (JA 69-70).) Wasserman wrote to both Menkes and the Association explaining that Menkes's dispatch as an independent pilot was predicated on the former director's determination that the Association was unable to provide adequate services for the remainder of the 2003 season. (Wasserman letter, 12/29/03 (JA 66-67).) Accordingly, Wasserman concluded that Menkes could be dispatched until the end of that season. However, because he believed the Association would likely be able to provide services for the 2004 season, Wasserman informed him that Menkes's appointment would " naturally expire" at the end of the 2003 season. ( Id. ) Wasserman, of course, would continue to monitor the Association's ability to provide services in the 2004 season. ( Id. ) Indeed, the next month, Wasserman again clarified to Menkes that his status as an independent pilot was not permanent, but was contingent on the Coast Guard's determination that the Association was unable to provide the necessary services. (Wasserman letter, 01/22/04 (JA 63) (noting that Menkes's " status as an independent pilot has been predicated on a determination by [Wasserman's] office that an extraordinary circumstance exists" ).) Menkes contends, amazingly, these letters from Wasserman were his

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first indication that his appointment was not permanent.

Menkes appealed Wasserman's decision within the Coast Guard, and his appeal was denied by Rear Admiral T.H. Gilmour in April 2004. (Gilmour letter, 04/12/04 (JA 58-59).) Gilmour noted Menkes had " some fundamental misunderstandings concerning Great Lakes pilotage and the status of Captain Menkes as an independent pilot." ( Id. ) Specifically, Gilmour explained that under the regulation, Menkes's appointment as an independent pilot was predicated on the Coast Guard's determination that the Association is incapable of providing adequate pilotage services. ( Id. (citing 46 C.F.R. § 401.720(b))...

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