Menkes v. U.S. Department of Homeland Security

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 22, 2010 Decided March 8, 2011

No. 09-5372

RICHARD J. MENKES,
APPELLANT

v.

U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-01456)

Jonathan G. Axelrod argued the cause and filed the briefs
for appellant. Edward M. Gleason Jr. entered an appearance.

Alan Burch, Assistant U.S. Attorney, argued the cause for
appellees. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Claire Whitaker, Assistant U.S. Attorney, entered an
appearance.

Before: GINSBURG and BROWN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
 2

Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Opinion filed by Circuit Judge BROWN dissenting in part.
EDWARDS, Senior Circuit Judge: The Great Lakes Pilotage
Act (“GLPA”) sets forth certain requirements for persons who
serve as pilots of vessels sailing on the waters of the Great
Lakes. Under the statute, the United States Coast Guard (“Coast
Guard” or “agency”) is afforded discretion to “authorize the
formation of a pool by a voluntary association of United States
registered pilots to provide for efficient dispatching of vessels
and rendering of pilotage services.” 46 U.S.C. § 9304(a).
Pursuant to this statutory authority, the Coast Guard has
promulgated regulations that provide for the formation of pools
in three Great Lakes districts. 46 C.F.R. § 401.300. Under the
applicable regulations, “[w]hen pilotage service is not provided
by the association authorized under 46 U.S.C. 9304 because of
a physical or economic inability to do so, . . . the Director [of
Great Lakes Pilotage of the Coast Guard] may order any U.S.
registered pilot to provide pilotage service.” Id. § 401.720(b).
Appellant Richard Menkes was a member of the St.
Lawrence Seaway Pilots’ Association (“SLSPA” or
“Association”) – the only voluntary association designated by
the Coast Guard to provide pilotage service in the district
encompassing the St. Lawrence River and Lake Ontario.
Menkes resigned from the SLSPA in 2000 and then requested
the Coast Guard to dispatch him as an unaffiliated, independent
pilot on the St. Lawrence River. In March 2001, Menkes was so
assigned pursuant to § 401.720(b). In late 2003, the Coast
Guard determined that Menkes’s appointment as an independent
pilot would “naturally expire” at the conclusion of the 2003
navigation season. The agency indicated that it would continue
to monitor the SLSPA to determine whether the services of an
independent pilot would be required during the 2004 season.
 3

However, Menkes was never reassigned to serve on the St.
Lawrence River in 2004.
In August 2004, Menkes filed suit against the United States
Department of Homeland Security, the Coast Guard, and the
Assistant Commandant of the Coast Guard (collectively “the
Government”), challenging the Coast Guard’s determination to
terminate his appointment as an unaffiliated, independent pilot.
Menkes claimed that the Government’s action violated the
Administrative Procedure Act (“APA”), as well as his First
Amendment and Fifth Amendment rights. The District Court
granted the Government’s motion to dismiss. Menkes v. Dep’t
of Homeland Sec. (“Menkes I”), 402 F. Supp. 2d 204 (D.D.C.
2005). On appeal, we reversed and remanded the case. Menkes
v. Dep’t of Homeland Sec. (“Menkes II”), 486 F.3d 1307 (D.C.
Cir. 2007). The District Court then remanded the case to the
Coast Guard for further consideration.
After further review, the Coast Guard held that, under the
statute and applicable regulations, a “voluntary association”
under 46 U.S.C. § 9304 refers to a group of people “joined
together for a certain purpose, and not a legal entity distinct
from the persons who are members.” See Agency Decision on
Remand in the Appendix to this opinion. The Coast Guard held
further that a certified voluntary association is not required to
“dispatch every registered, licensed and qualified pilot who
desires to provide pilotage services.” Id. In other words, pilots
who are not members of a designated voluntary association do
not share in its responsibilities or privileges. The Coast Guard
also determined that Menkes had no right to serve as an
independent pilot during the 2004 navigation season, because,
as of December 2003, the SLSPA appeared to have a sufficient
number of pilots to provide pilotage service for the upcoming
season.
Menkes again sought relief in the District Court. After
reviewing cross-motions for summary judgment, the District
 4

Court rejected Menkes’s claims and granted judgment to the
Government. Menkes v. Dep’t of Homeland Sec. (“Menkes III”),
662 F. Supp. 2d 62 (D.D.C. 2009). On Menkes’s APA claim,
the District Court held that the Coast Guard reasonably
concluded that Menkes’s term of service as an independent pilot
expired in 2003, and that Menkes had no entitlement to
reassignment in 2004. The District Court also held that issue
preclusion barred Menkes’s First Amendment claim because the
Second Circuit had ruled against Menkes on the same issue in a
suit against the SLSPA. Menkes v. SLSPA (“SLSPA”), 269 F.
App’x 54 (2d Cir. 2008). Finally, the District Court rejected
Menkes’s Fifth Amendment due process claim because he failed
to demonstrate a viable property interest in an appointment to
serve as a pilot in a specific area. Menkes timely appealed.
We affirm the judgment of the District Court. First, we
hold that the Coast Guard’s interpretation of the term “voluntary
association” in 46 U.S.C. § 9304 easily survives review under
Chevron Step Two. See Chevron U.S.A. Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 843-44 (1984) (holding that,
once a court determines that Congress either explicitly or
implicitly delegated to an agency the authority to fill a gap in its
authorizing statute, the court must accept the agency’s position
if it is based on a “permissible” interpretation of the statute).
Second, we agree with the District Court that Menkes’s First
Amendment claim appears to be precluded by the Second
Circuit’s judgment. In any event, the claim fails on the merits.
Third, we hold that the Coast Guard did not act arbitrarily and
capriciously in determining that Menkes’s dispatch as an
independent pilot expired after the 2003 navigation season.
Fourth, we reject Menkes’s Fifth Amendment due process claim,
because Menkes had no constitutionally protected entitlement to
continued dispatch by the Coast Guard. Finally, we hold that
the District Court did not abuse its discretion in denying
Menkes’s request for extra-record discovery.
 5

I. BACKGROUND
A. Statutory and Regulatory Background
In 1960, Congress passed the GLPA in order “to establish
pilotage requirements for oceangoing vessels in their navigation
of U.S. waters of the Great Lakes and St. Lawrence River and to
provide a basis for a regulated pilotage system to meet those
requirements.” H.R. REP. NO. 86-1666, at 1 (1960), reprinted in
1960 U.S.C.C.A.N. 2481, 2481. The statute, as amended,
requires both U.S. and foreign vessels in these waters to “engage
a United States or Canadian registered pilot for the route being
navigated,” 46 U.S.C. § 9302, and requires the Coast Guard to
prescribe “standards of competency” that each applicant must
meet in order to become a United States registered pilot, id. §
9303. Most pertinent to this appeal, it provides that:
(a) The Secretary may authorize the formation of a pool by
a voluntary association of United States registered
pilots to provide for efficient dispatching of vessels
and rendering of pilotage services.
(b) For pilotage pools, the Secretary may –
(1) limit the number of the pools;
(2) prescribe regulations for their operation and
administration;
(3) prescribe a uniform system of accounts;
(4) perform audits and inspections; and
(5) require coordination on a reciprocal basis with
similar pool arrangements authorized by the
appropriate agency of Canada.
Id. § 9304.
The Coast Guard has promulgated several regulations
pursuant to the GLPA. Two of these regulations are particularly
 6

important here: one, 46 C.F.R. § 401.300, authorizes voluntary
associations of U.S. registered pilots to establish pools in three
districts of the U.S. waters of the Great Lakes; the other, 46
C.F.R. § 401.720(b), provides that “[w]hen pilotage service is
not provided by the association authorized under 46 U.S.C. 9304
because of a physical or economic inability to do so, . . . the
Director [of Great Lakes Pilotage of the Coast Guard] may order
any U.S. registered pilot to provide pilotage service.” Only
District One – which covers portions of the St. Lawrence River
and Lake Ontario – is at issue in this case. Id. § 401.300(a)(1);
see also Decl. of Paul M. Wasserman ¶¶ 10-11 (May 28, 2008),
reprinted in Joint Appendix (“J.A.”) 455-56.
District One is comprised of two areas: the waters in Area
1, which include portions of the St. Lawrence River, and the
waters in Area 2, which include Lake Ontario. Decl. of Paul M.
Wasserman ¶¶ 10-11 (May 28, 2008), J.A. 455-56. A single
pilot can be qualified to navigate vessels in both areas, although
Area 2 pilots must be qualified to navigate a vessel both into a
port and from “pilot boat to pilot boat,” i.e., a vessel that is only
passing through Lake Ontario. Id. ¶ 17, J.A. 459.
B. Procedural Background
At all times relevant to this litigation, the SLSPA was the
only pilotage pool authorized by the Coast Guard in District
One. In order to become a member of the SLSPA, a pilot must
be recommended by the voting members of the SLSPA and
purchase one share (worth approximately $60,000) of Seaway
Pilots Inc., the corporate entity through which the SLSPA
purchases pilot boats and other property. Menkes was a member
of the SLSPA until 2000, at which point he tendered his equity
stake in Seaway Pilots Inc. and resigned from the Association.
Following his resignation from the SLSPA, Menkes informed
the Coast Guard that “I am still a U.S. Registered Pilot . . .[, and]
I maintain my right to be dispatched.” Letter from Richard J.
 7

Menkes to Frank J. Flyntz, Director, Great Lakes Pilotage (July
24, 2000), reprinted in J.A. 138.
The Director of Great Lakes Pilotage of the Coast Guard,
Frank J. Flyntz, dispatched Menkes as an independent pilot for
the 2001 navigation season. Flyntz explained his actions as
follows:
Captain Menkes will remain in District [One] as a U.S.
registered pilot and be available for dispatch whether or not
he belongs to a pilotage pool. A pilotage pool is a
voluntary association of registered pilots. 46 U.S.C.
§ 9304. There 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.
Captain Menkes’ resignation from the SLSPA does not
prevent him from being dispatched nor does it provide any
basis for the Coast Guard to deny him the opportunity to
continue to earn his livelihood as a U.S. registered pilot.
Captain Menkes has a vested property right in his certificate
of registration that the Coast Guard cannot revoke simply
because he does not belong to a pilotage pool. . . .
Furthermore, as I stated in my letter to the SLSPA dated
February 26, 2001, there is a serious need for qualified
pilots in District [One] and, as I previously determined, the
SLSPA has not physically provided adequate pilotage
service in accordance with 46 C.F.R. § 401.720(b).
Letter from F.J. Flyntz, Director, Great Lakes Pilotage to Roger
Paulus, President, SLSPA at 1 (Mar. 7, 2001) (emphasis in
original), reprinted in J.A. 131. The SLSPA appealed Flyntz’s
determination. The disputed decision was upheld, albeit on
different grounds, by J.P. High, the Coast Guard’s Director of
Waterways Management. High concluded that, “[a]s the
Director may order any U.S. Registered Pilot to provide pilotage
service in situations such as those found by the Director to
currently exist, I find that the Director’s order to Captain
 8

Menkes was a valid exercise of his authority [under 46 C.F.R.
§ 401.720(b)].” Letter from J.P. High, Director of Waterways
Mgmt., to Mark Ruge, Preston, Gates, Ellis & Rouvelas, Meeds
LLP at 3 (May 22, 2001) (emphasis in original), reprinted in
J.A. 127.
Menkes served as an independent pilot in Area 1 of District
One during the 2001, 2002, and 2003 navigation seasons. Each
season runs from the end of March until the end of December.
In August 2003, the SLSPA wrote then-Acting Director of the
Office of Great Lakes Pilotage of the Coast Guard, Paul
Wasserman, insisting that the Association was fully able to
provide all necessary pilotage service in District One. Letter
from SLSPA to Paul Wasserman, Acting Director, Office of
Great Lakes Pilotage (Aug. 20, 2003), reprinted in J.A. 97.
Wasserman disagreed in part and renewed the Coast Guard’s
determination that the SLSPA was unable to provide adequate
pilotage service through the end of the 2003 navigation season.
However, Wasserman stated that, at the end of the 2003 season
“[this] determination, and Captain Menkes’ appointment as an
independent pilot, will naturally expire.” Letter from Paul M.
Wasserman, Director, Great Lakes Pilotage to Roger Paulus &
Richard Menkes at 2 (Dec. 29, 2003), reprinted in J.A. 77.
Wasserman added that he would “continue to monitor the status
of the SLSPA after the 2003 navigation season to determine
whether the services of any independent pilots will be required
for the 2004 navigation season.” Id. In a subsequent letter
responding to Menkes’s claim “that [his] status as an
independent pilot in District One [was] a permanent
circumstance,” Wasserman made it clear that “[Menkes’s] 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.” Letter from
Paul M. Wasserman, Director, Great Lakes Pilotage to Richard
Menkes at 1 (Jan. 22, 2004), reprinted in J.A. 73.
 9

Menkes’s appeal of Wasserman’s decision was rejected by
T.J. Gilmour, the Assistant Commandant for Marine Safety.
Gilmour found that Flyntz’s 2001 decision to dispatch Menkes
was based on [Flyntz’s] determination that the SLSPA
could not physically provide adequate pilotage service and
there was a serious need for additional qualified pilots in
District One. Captain Menkes’ continued service as an
independent pilot was, and is, contingent upon that
extraordinary circumstance remaining in effect.
Letter from T.H. Gilmour, Real Admiral, U.S. Coast Guard to
Edward M. Gleason, Beins, Axelrod, Kraft, Gleason & Gibson,
P.C. (“Gilmour Letter”) at 1 (Apr. 12, 2004) (emphasis added),
reprinted in J.A. 68. Gilmour added that “Captain Menkes is
free to apply to the SLSPA for membership in that association.”
Id. at 2, J.A. 69.
In August 2004, Menkes filed suit in the District Court
against the Government, alleging that the Coast Guard violated
his First Amendment associational rights, his Fifth Amendment
due process rights, and the APA in determining that his
appointment as an independent pilot in District One had expired.
He sought injunctive relief, cease-and-desist orders, and such
other relief as appropriate. The District Court granted the
Government’s motion to dismiss Menkes’s claims under FED. R.
CIV. P. 12(b)(1) and 12(b)(6). Menkes I, 402 F. Supp. 2d 204
(D.D.C. 2005). The court held that the Coast Guard’s actions
were “committed to agency discretion by law,” and,
accordingly, not reviewable under the APA. Id. at 207-09. In
addition, the District Court dismissed Menkes’s First
Amendment claim on the ground that the Coast Guard had not
required Menkes to join the SLSPA as a condition of
employment, id. at 209-10, and it dismissed his Fifth
Amendment claim on the ground that neither the statute nor the
applicable regulations created “an entitlement to the
 10

authorization of working as an independent pilot in a district
with an approved pilotage pool,” id. at 210.
On appeal, we reversed the District Court’s judgment and
vacated the decision of the Coast Guard. We first concluded
that the Coast Guard’s determination was reviewable under the
APA. Menkes II, 486 F.3d at 1312-13. We declined, however,
to address Menkes’s statutory claim, because the Coast Guard
had yet to offer an explicit interpretation of the statute or the
applicable regulations. We explained that
[i]t is not appropriate for us to decide appellant’s statutory
argument – that giving a preference to the Association
conflicts with the controlling statute’s use of “voluntary
association” – at this time. We cannot pass comfortably on
that question because we do not have a forthright agency
interpretation of the statute. Paradoxically, the government
argues that we should give deference to its interpretation
under Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). But putting aside the
question raised by United States v. Mead Corp., 533 U.S.
218 (2001) – whether an interpretation advanced only in an
informal adjudication is entitled to deference – in this case
we do not have an explicit agency interpretation of either
the statute or the regulation to evaluate. To be sure, section
401.720(b) could be read to imply a preference for the
Association. The Wasserman and Gilmour letters could
also be read to suggest as much. But an implication is not
an agency interpretation, and we are disinclined to tease
out, from the welter of correspondence in this case, an
interpretation the agency itself has failed to offer. The
statutory question is potentially a difficult one. The Coast
Guard must come to grips with the meaning of the statute,
and, particularly, the meaning of the term “voluntary
association.” An agency interpretation is not only
 11

necessary to meet appellant’s administrative law challenge,
it is also essential . . . to meet his constitutional claims.
Id. at 1313-14 (footnote omitted).
We likewise declined to evaluate Menkes’s argument that
the agency acted arbitrarily and capriciously in denying him an
appointment for the 2004 navigation season, noting that “the
Coast Guard has offered no explanation regarding the changed
conditions from the 2003 to 2004 navigation season, and on
remand it will be obliged to do so.” Id. (footnote omitted). The
case was remanded “to the district court with instructions to
remand the APA claim to the Coast Guard for further
proceedings.” Id. at 1315. The District Court was instructed to
“retain jurisdiction over appellant’s constitutional claims, but
hold them in abeyance pending the Coast Guard’s response to
the remand.” Id.
On remand, the agency “invite[d] Mr. Menkes to submit
any evidence or arguments he would like the Coast Guard to
consider.” Letter from Paul M. Wasserman, Director, Great
Lakes Pilotage to Jonathan G. Axelrod, Benis[sic], Axelrod &
Kraft, P.C. at 1 (Aug. 9, 2007), reprinted in J.A. 317. Menkes’s
counsel wrote the agency and contended that: (1) a Coast
Guard-designated “voluntary association” is required to dispatch
willing, registered pilots regardless of whether they are members
of the association; (2) the Coast Guard erred in determining that
Menkes’s status as an independent pilot expired at the
conclusion of the 2003 navigation season; and (3) the Coast
Guard never found that the SLSPA could provide adequate
pilotage service for the 2004 navigation season. Letter from
Jonathan G. Axelrod to Paul M. Wasserman, Director, Great
Lakes Pilotage (Oct. 9, 2007), reprinted in J.A. 336-47.
In an exhaustive decision, the Coast Guard addressed the
issues raised by this court in Menkes II and by Menkes’s counsel
in his submission on remand. In this decision, the Coast Guard
 12

set forth in detail the agency’s interpretation of “voluntary
association” under 46 U.S.C. § 9304, explained the rights and
responsibilities of such associations under the statute and agency
regulations, and clarified the rights of unaffiliated, independent
pilots. The principal judgments made by the Coast Guard are as
follows:
• The statutes governing Great Lakes pilotage and the
implementing Coast Guard regulations do not require
certificated pilots’ associations to dispatch every registered,
licensed, and qualified pilot who desires to provide pilotage
services.
• Certificated pilots’ associations are primarily responsible
for providing adequate pilotage services, and that includes
deciding whether or not to dispatch non-member pilots.
• Only when a certificated pilots’ association is not providing
adequate pilotage service would the Director deviate from
the policy of placing primary responsibility for providing
pilotage service with the certificated pilots’ association and
intervene to ensure that adequate pilotage service is
provided or notify vessels that a pilot is not available. This
is a longstanding policy based in part on the Coast Guard’s
interpretation of the Great Lakes pilotage regulations,
dating at least back to about 1975.
• The Coast Guard does not interpret the phrase “voluntary
association” found in 46 U.S.C. § 9304, and in the Coast
Guard’s implementing regulations, to mean that a
certificated pilots’ association must dispatch every
registered, licensed, and qualified pilot who desires to
provide pilotage service. Any such language in Flyntz’s
letter was never an authoritative statement of the agency’s
interpretation of the phrase “voluntary association.”
• Since Congress has not provided a specific meaning or
definition for the phrase “voluntary association,” the Coast
 13

Guard may interpret the phrase to give it a meaning that is
reasonable and consistent with the purpose of 46 U.S.C.
§ 9304 and 46 U.S.C. Chapter 93 as a whole.
• An association is a collection of persons joined together for
a certain object, and an unincorporated association is not a
legal entity distinct from the persons who are members.
Membership in a voluntary unincorporated association is
generally held to be a privilege which may be accorded or
withheld, and not a right which can be gained
independently and then enforced. Congress used the phrase
“voluntary association” to mean only a collection of
persons joined together for a certain purpose, and not a
legal entity distinct from the persons who are members.
The Coast Guard considers this to be a reasonable
interpretation of the phrase as it is used in 46 U.S.C.
§ 9304, and this meaning is consistent with the purpose of
that provision and 46 U.S.C. Chapter 93 as a whole.
• If Congress had intended 46 U.S.C. § 9304 to have the
meaning that Menkes asserts, it would have used the word
“voluntary” with “pool” to indicate that the pool should be
open to anyone wanting to provide pilotage service;
although, even in that case, the intent of the phrase would
not be plain. But, as it is, Congress used the phrase
“voluntary association.” Interpreting the word voluntary to
mean that the association should be open to anyone wanting
to provide pilotage service is not plain from the statutory
language, and such an interpretation would do Menkes no
good, because he specifically does not want to join the
SLSPA.
• With respect to pilots’ associations, and Great Lakes pilots’
associations in particular, in the more than forty years since
the GLPA was enacted, persons wanting to join a pilots’
association apply to become a member and the pilots’
association admits those it chooses to accept and who can
 14

meet the requirements to become a registered, licensed, and
qualified pilot.
• Congress intended to regulate pilotage on the Great Lakes
and intended to give the Coast Guard authority to delegate
to certificated pilots’ associations the operation of pilotage
pools “to provide for efficient dispatching of vessels and
rendering of pilotage services.” 46 U.S.C. § 9304. It is the
Coast Guard’s view that this should include allowing the
certificated pilots’ associations to decide if they will
dispatch non-member pilots. Of course, the certificated
pilots’ associations’ power to operate pilotage pools is
always subject to the Director’s authority to register Great
Lakes pilots, in accordance with 46 C.F.R. Part 401,
Subpart B; to set pilotage rates with target compensation
based on an assumed reasonable number of pilots to provide
adequate pilotage service, in accordance with 46 C.F.R.
Part 404; and to generally oversee the provision of pilotage
services in accordance with 46 U.S.C. Chapter 93 and 46
C.F.R. Chapter III.
• The agency’s authorized delegation of primary
responsibility for the operation of pilotage pools to
certificated pilots’ associations is in the public interest.
• The Coast Guard has no interest in whether Menkes joins
the SLSPA or any other pilots’ association. That is a matter
entirely up to him and to the pilots’ association if he wants
to apply for membership.
This material is drawn from the Agency Decision on Remand
from the Court of Appeals for the District of Columbia and the
District Court for the District of Columbia in the Case of
Richard J. Menkes v. Dep’t of Homeland Sec., et al. (June 2,
2008) (“Agency Decision on Remand”) at 8-16, reprinted in J.A.
286-94. [Because it is not otherwise easily accessible online or
 15

elsewhere, a substantial portion of the Agency Decision on
Remand is reprinted in the Appendix to this opinion.]
The agency also addressed the need for pilots in Area 2
during the 2004 navigation season. Relying on a declaration by
Wasserman, the Coast Guard found that
at the end of the 2003 navigation season, even allowing for
a modest increase in bridge hours [the hours a pilot is
aboard a vessel providing basic pilotage service] in the
2004 navigation season, there was no reason for Mr.
Wasserman to believe that more than four pilots would be
needed for the 2004 navigation season in Area 2.
Considering that the SLSPA expected to have four pilots
available for service in Area 2, it did not appear that there
would be a great need for Area 1 pilots to work in Area 2
and that the SLSPA could provide adequate pilotage service
without Mr. Menkes being ordered to provide pilotage
service [in Area 1].
Agency Decision on Remand at 33-34, J.A. 311-12; see also
Decl. of Paul M. Wasserman (May 28, 2008), J.A. 451-61
(explaining basis for Wasserman’s decision to allow Menkes’s
appointment as independent pilot to expire).
The parties returned to the District Court, where both
Menkes and the Government filed new cross-motions for
summary judgment. The District Court denied Menkes’s motion
and granted the Government’s. Menkes III, 662 F. Supp. 2d 62
(D.D.C. 2009). It first rejected Menkes’s argument that he
should be allowed to conduct extra-record discovery, holding
that Menkes failed to make a sufficient showing that the Coast
Guard acted in bad faith. Id. at 69-70 & n.5. Second, the court
found the Coast Guard’s interpretation of the term “voluntary
association” both reasonable and consistent with the agency’s
actions. Id. at 70. Third, the court found that, despite
Wasserman’s and Gilmour’s use of the term “extraordinary
 16

circumstance” in their 2003 and 2004 letters, the Coast Guard
did not apply an improper standard in determining that the
SLSPA likely would have an adequate number of pilots
available for the 2004 navigation season. See id. at 71. Finally,
the court found that it was unreasonable for Menkes to believe
that Flyntz’s 2001 letter gave him a permanent right to dispatch
as an unaffiliated, independent pilot. Id. at 71-73.
The District Court also found for the Government with
respect to Menkes’s constitutional claims. The court held that
Menkes’s First Amendment claim was precluded by the Second
Circuit’s decision in SLSPA, in which that court rejected
Menkes’s First Amendment claim against the SLSPA. Id. at 73.
The District Court also held that Menkes’s due process claim
under the Fifth Amendment failed because Menkes did not have
a protected property interest in serving as a pilot in a specific
area of the Great Lakes. Id. at 73-74.
Menkes appeals from the District Court’s ruling that the
Coast Guard’s interpretation of the term “voluntary association”
was consistent with 46 U.S.C. § 9304. He also appeals from the
District Court’s disposition of his remaining APA and
constitutional claims.
II. Analysis
A. Standard of Review
Our review of the District Court’s grant of summary
judgment, including its legal determinations regarding Menkes’s
First Amendment and due process claims, is de novo. See
Howmet Corp. v. EPA, 614 F.3d 544, 549 (D.C. Cir. 2010). We
review the District Court’s denial of Menkes’s request for
additional discovery for an abuse of discretion. United States v.
Deloitte LLP, 610 F.3d 129, 134 (D.C. Cir. 2010). Within that
abuse of discretion standard, however, we review whether the
District Court applied the correct legal standard de novo. Id.
Menkes’s claim that the Coast Guard’s interpretation of
 17

“voluntary association” in 46 U.S.C. § 9304 is at odds with the
statute is reviewed under the two-part test enunciated by the
Supreme Court in Chevron. See Chevron, 467 U.S. at 843-44.
As for Menkes’s assertion that the Coast Guard violated the
APA in its decisionmaking,
the arbitrary and capricious standard governs review of all
proceedings that are subject to challenge under the APA.
See Consumers Union of U.S., Inc. v. FTC, 801 F.2d 417,
422 (D.C. Cir. 1986). Thus, if an action is subject to review
under the APA, it does not matter whether it is a formal or
informal adjudication or a formal or informal rulemaking
proceeding – all are subject to arbitrary and capricious
review under [5 U.S.C.] § 706(2)(A).
HARRY T. EDWARDS & LINDA A. ELLIOTT, FEDERAL
STANDARDS OF REVIEW–REVIEW OF DISTRICT COURT
DECISIONS AND AGENCY ACTIONS 167 (2007) (emphasis in
original).
Normally, an agency [action] would be arbitrary and
capricious if the agency has relied on factors which
Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983).
B. Statutory Interpretation of “Voluntary Association”
Menkes does not claim that the Coast Guard violated the
APA when it issued the Agency Decision on Remand without
first engaging in notice-and-comment rulemaking. And for
good reason. The Supreme Court has made it clear that “the fact
 18

that [an] Agency . . . reache[s an] interpretation through means
less formal than ‘notice and comment’ rulemaking does not
automatically deprive that interpretation of the judicial
deference otherwise its due.” Barnhart v. Walton, 535 U.S. 212,
221 (2002) (citation omitted). Menkes’s sole objection here is
that the Coast Guard’s interpretation of the term “voluntary
association” in 46 U.S.C. § 9304 is manifestly at odds with the
terms of the GLPA and thus arbitrary and capricious under the
APA.
In addressing Menkes’s claim, we must first determine
whether the agency’s interpretation of the statute – including its
construction of “voluntary association” and its explanation of an
association’s responsibilities vis-à-vis the Coast Guard and
independent pilots – deserves Chevron deference. Menkes does
not contest the applicability of Chevron. Appellant’s Br. at 16
(“Chevron . . . controls the Court’s review of an administrative
agency decision.”). Nevertheless, in light of the concerns raised
by the court in Menkes II, 486 F.3d at 1313-14, we are
constrained to address the degree of deference due, if any, to the
Coast Guard’s construction and application of the statute.
Under Chevron, if a
court determines Congress has not directly addressed the
precise question at issue, the court does not simply
impose its own construction on the statute, as would be
necessary in the absence of an administrative
interpretation. Rather, if the statute is silent or
ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer is
based on a permissible construction of the statute.
The power of an administrative agency to
administer a congressionally created . . . program
necessarily requires the formulation of policy and the
making of rules to fill any gap left, implicitly or
 19

explicitly, by Congress. If Congress has explicitly left
a gap for the agency to fill, there is an express delegation
of authority to the agency to elucidate a specific
provision of the statute by regulation. Such legislative
regulations are given controlling weight unless they are
arbitrary, capricious, or manifestly contrary to the
statute. Sometimes the legislative delegation to an
agency on a particular question is implicit rather than
explicit. In such a case, a court may not substitute its
own construction of a statutory provision for a
reasonable interpretation made by the administrator of
an agency.
Chevron, 467 U.S. at 843-44 (ellipsis in original) (footnotes and
quotation omitted). The statute at issue here states that
(a) The Secretary may authorize the formation of a pool by
a voluntary association of United States registered
pilots to provide for efficient dispatching of vessels
and rendering of pilotage services.
(b) For pilotage pools, the Secretary may–
(1) limit the number of the pools;
(2) prescribe regulations for their operation and
administration;
(3) prescribe a uniform system of accounts;
(4) perform audits and inspections; and
(5) require coordination on a reciprocal basis with
similar pool arrangements authorized by the
appropriate agency of Canada.

46 U.S.C. § 9304. The statute does not directly address the
precise questions at issue in this case. However, there is no
doubt that the statute provides an “express delegation of
 20

authority to the agency to elucidate” the terms of § 9304. It is
also clear that the Coast Guard acted pursuant to this
congressionally delegated authority in adopting regulations
governing pilotage on the Great Lakes and in amplifying its
interpretation of the statute in its Agency Decision on Remand.
Therefore, the Secretary’s regulations and the Agency Decision
on Remand are “legislative regulations [that must be] given
controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute.”
It does not matter that the Agency Decision on Remand – in
which the Coast Guard amplified its position on the meaning of
“voluntary associations” and explained the rights of unaffiliated,
independent pilots – is a judgment rendered in an adjudication
rather than in a rulemaking procedure.
The Supreme Court has explained that [Chevron] Step Two
deference . . . comes into play when an agency has acted
within the area in which Congress has authorized it to act,
and the action at issue was taken pursuant to
congressionally delegated authority to make law and with
the intent on the part of the agency to act with the force of
law. [United States v. Mead Corp., 533 U.S. 218, 226-27
(2001)]. As Mead explains, “[i]t is fair to assume generally
that Congress contemplates administrative action with the
effect of law when it provides for a relatively formal
administrative procedure tending to foster the fairness and
deliberation that should underlie a pronouncement of such
force.” Id. at 230. The absence of rulemaking or
adjudicatory procedures is not dispositive, however, for the
Court has “sometimes found reasons for Chevron deference
even when no such administrative formality was required
and none was afforded.” Id. at 231.
HARRY T. EDWARDS & LINDA A. ELLIOTT, FEDERAL
STANDARDS OF REVIEW–REVIEW OF DISTRICT COURT
DECISIONS AND AGENCY ACTIONS 152 (2007).
 21

Menkes’s arguments fall far short of showing that the Coast
Guard’s interpretation of 46 U.S.C. § 9304 is manifestly
contrary to the statute or otherwise arbitrary and capricious.
First, the Coast Guard was acting pursuant to an express
delegation from Congress. The GLPA specifically allows the
Coast Guard to “authorize the formation of a pool by a voluntary
association of United States registered pilots.” 46 U.S.C.
§ 9304. And the statutory mandate gives the Coast Guard the
explicit authority to set parameters for voluntary associations.
See id. § 9304(b).
Second, the Coast Guard’s Agency Decision on Remand
addresses interstitial questions, see Walton, 535 U.S. at 222, that
are bound up with the administration of the Coast Guard’s
scheme of regulating pilotage on the Great Lakes. If the Coast
Guard had adopted Menkes’s proposal that independent pilots
must be dispatched on equal terms with members of voluntary
associations, this could have incentivized other member pilots
– like Menkes – to resign their association membership because
they could receive the benefit of being dispatched without the
burden of paying for an equity stake in a voluntary association.
See Letter from Richard J. Menkes to Paul M. Wasserman,
Acting Director of Great Lakes Pilotage (July 8, 2003),
reprinted in J.A. 98 (explaining Menkes’s position that “[i]f five
pilots are called for in the rates, I would be entitled to one fifth
of all U.S. dispatches; if the number of pilots called for is six,
then I would get one sixth of all U.S. dispatches, and so on”).
This could have impacted myriad aspects of the regulatory
scheme, 46 C.F.R. § 401.300 et seq., including the Coast
Guard’s discretion to “determine[ ] that a pool is necessary for
the efficient dispatching of vessels and the providing of pilotage
services in the area concerned,” id. § 401.320(a). After all, if an
association had to dispatch every willing, non-member
registered pilot, this could affect the Coast Guard’s calculus of
whether the formation of a pool in a particular district would be
efficient. In sum, the potential ramifications of the agency’s
 22

decision confirm that these are precisely the sort of complex,
interstitial questions that the Coast Guard deserves deference to
address. See Mylan Labs., Inc. v. Thompson, 389 F.3d 1272,
1280 (D.C. Cir. 2004) (according Chevron deference to FDA
letter due to “complexity of the statutory regime under which the
FDA operates, the FDA’s expertise [and] the careful craft of the
scheme it devised to reconcile the various statutory provisions”).
Furthermore, the Coast Guard’s interpretation, as clarified
in the Agency Decision On Remand, reflects a longstanding
agency policy. The Coast Guard explained that the policy dates
back to around 1975, Agency Decision on Remand at 9, J.A.
287, and Menkes has provided no evidence to the contrary. In
fact, in a letter sent by Menkes in 1978, he acknowledged that
[i]t is my understanding that the Great Lakes Pilotage
System allowed only licensed pilots who were members of
the designated pilot association . . . to operate vessels unless
an appropriate waiver has been obtained for such pilotage.
Even waivers, to the best of my knowledge, do not allow
pilots who were former members of the association without
any affiliation, to pilot vessels in the Great Lakes System.
Letter from Richard J. Menkes to George R. Skuggen, Director,
Great Lakes Pilotage Staff (Mar. 27, 1978), reprinted in J.A.
144. Although, as noted above, F.J. Flyntz arguably voiced a
different view in his 2001 letter authorizing Menkes to be
dispatched, Flyntz’s determination was appealed by the SLSPA.
On appeal, Flyntz’s disputed decision was modified by his
superior, J.P. High, the Coast Guard’s Director of Waterways
Management, who upheld the decision solely on the ground that
Menkes could be dispatched because the SLSPA was not
providing adequate pilotage service. See Letter from J.P. High,
Director of Waterways Mgmt., to Mark Ruge, Preston, Gates,
Ellis & Rouvelas, Meeds LLP at 2-3 (May 22, 2001), J.A. 126-
27. High did not adopt Flyntz’s interpretation of the GLPA.
 23

Because High’s construction of the statute displaced Flyntz’s, it
is evident that Flyntz’s interpretation was never controlling.
It is highly significant here that the agency’s “interpretation
is one of long standing.” Walton, 535 U.S. at 221. And it does
not matter that the Coast Guard “reached its interpretation
through means less formal than ‘notice and comment’
rulemaking,” id., especially when Menkes has not challenged
the method used by the agency to amplify its regulations.
Benkelman Tel. Co. v. FCC, 220 F.3d 601, 607 n.10 (D.C. Cir.
2000) (finding argument that agency violated APA by failing to
utilize notice-and-comment rulemaking waived).
Surely, the Coast Guard’s enunciation of the aforecited
statutory interpretations and rules has the “force of law,” Mead,
533 U.S. at 232, especially given the instruction from this court
to the agency to “come to grips with the meaning of the statute.”
Menkes II, 486 F.3d at 1314. The court’s remand order did not
instruct the agency to conduct notice-and-comment rulemaking
or a formal adjudication, nor did Menkes request either
procedure. In these circumstances, we think it is clear under
Mead and Walton that Chevron applies. And not only does the
deferential Chevron framework apply to the Coast Guard’s
interpretation of 46 U.S.C. § 9304, but, to the extent that the
Coast Guard’s Agency Decision on Remand reflects the agency’s
interpretation of its own regulations – here, 46 C.F.R §§
401.300, 401.720(b) – it deserves even greater deference. See
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994);
see also Chase Bank USA, N.A. v. McCoy, 131 S.Ct. 871, 880-82
(2011) (deferring to agency’s interpretation of its own
regulation, advanced in legal brief, because “the interpretation
. . . is consistent with the regulatory text”).
Applying the Chevron framework, we conclude that the
Coast Guard’s policy is easily upheld. Chevron Step One
requires that we “examine[] the statute de novo in order to
determine ‘whether Congress has directly spoken to the precise
 24

question at issue.’” Eagle Broad. Grp., Ltd. v. FCC, 563 F.3d
543, 550 (D.C. Cir. 2009) (quoting Chevron, 467 U.S. at 842).
It is not clear from the text of 46 U.S.C. § 9304 whether a
voluntary association can decide to dispatch only its members,
for the term “voluntary association” is undefined. Nor are there
any hints in the GLPA’s limited legislative history as to how
Congress wished to resolve this question. See H.R. REP. NO. 86-
1666 (1960), reprinted in 1960 U.S.C.C.A.N. 2481. Congress
thus did not definitively answer the question at issue. Menkes’s
argument that an association cannot be “voluntary” if
membership is a necessary precondition for employment is a
non-sequitur.
Moving on to Chevron Step Two, we are obliged to defer to
the agency’s interpretation if it is “based on a permissible
construction of the statute.” Chevron, 467 U.S. at 843; see also
NetCoalition v. SEC, 615 F.3d 525, 533 (D.C. Cir. 2010) (noting
that “we accept the agency’s interpretation of the statute as long
as it is reasonable”). The Coast Guard contends that its position
is in furtherance of the public interest because
it removes the Director [of Great Lakes Pilotage] from day
to day involvement in the operation of the pilotage pools
and allows him to focus on oversight of the Great Lakes
pilotage operations. It also allows the pilots’ associations
that traditionally have brought organization and efficiency
to the provision of pilotage service to apply their expertise
to the operation of the pool. And it promotes the
availability of the necessary infrastructure for safe and
efficient pilotage – such as pilot boats, and office functions
including billing. It promotes retention of pilots, by giving
the pilots in the association some control over decisions that
will affect the financial health of the pilots, the pilots’
association and other entities that may provide
infrastructure support to the pilots.
 25

Agency Decision on Remand at 15, J.A. 293. These
justifications are reasonable, and Menkes does not question
them.
In sum, we have no trouble concluding that the Coast
Guard’s interpretations of the statute and its implementing
regulations are neither manifestly contrary to the statute nor
arbitrary and capricious.
C. First Amendment
Menkes also argues that the Coast Guard violated his First
Amendment right of association by requiring him to become a
member of the SLSPA in order to be dispatched as a pilot in
District One. It appears that this claim is precluded because the
Second Circuit decided this issue against Menkes in SLSPA, a
case in which Menkes brought suit against the SLSPA alleging,
inter alia, that the SLSPA violated Menkes’s First Amendment
right of association.
This case involves defensive, non-mutual issue preclusion,
because the Government – the party seeking to invoke
preclusion – was not a party to the Second Circuit action. Issue
preclusion applies “[w]hen an issue of fact or law is actually
litigated and determined by a valid and final judgment, and the
determination is essential to the judgment.” RESTATEMENT
(SECOND) OF JUDGMENTS § 27 (1982). Preclusion also must “not
work a basic unfairness to the party bound by the first
determination.” Yamaha Corp. of Am. v. United States, 961
F.2d 245, 254 (D.C. Cir. 1992). In addition, “issue preclusion
does not require mutuality of parties.” Gov’t of Rwanda v.
Johnson, 409 F.3d 368, 374 (D.C. Cir. 2005) (citing Blonder-
Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313 (1971)).
The First Amendment issue pressed by Menkes here is
identical to the one decided by the Second Circuit: whether
requiring membership in the SLSPA as a condition of being
dispatched by the Association as a District One pilot violated
 26

Menkes’s First Amendment rights. See Menkes v. SLSPA, No.
06-CV-339, 2007 WL 167715 at *10 (N.D.N.Y. Jan. 18, 2007)
(citing Menkes’s complaint). The Second Circuit decided this
issue against Menkes on the merits, citing the Supreme Court’s
decision in Keller v. State Bar of California, 496 U.S. 1, 8
(1990), to support the proposition that “the government can
compel an individual to join a professional association as a
condition of employment.” SLSPA, 269 F. App’x at 56.
Because the Second Circuit’s disposition of Menkes’s First
Amendment claim was final and essential to the Second
Circuit’s judgment dismissing his complaint, and neither in his
briefs nor at oral argument did Menkes provide a plausible
explanation as to why preclusion would be unfair, preclusion is
appropriate.
Even if Menkes’s First Amendment claim were not
precluded, it would fail on the merits. Menkes argues that
Abood v. Detroit Board of Education, 431 U.S. 209 (1977),
prevents the government from enabling a private association to
require membership as a condition of employment. Abood, in
fact, refutes Menkes’s argument. In Abood, the Court upheld a
Michigan statute that permitted a union and a local government
employer to enter into an “agency shop” agreement, whereby
non-union members had to pay the union the equivalent of union
dues as a condition of employment. The Court noted that “[t]o
compel employees financially to support their collective-
bargaining representative has an impact upon their First
Amendment interests.” Id. at 222. Nonetheless, it found the
“agency shop” agreement constitutionally justified by
Congress’s assessment of the important contribution of these
types of arrangements to the system of labor relations. Id. It
follows from Abood that here, even if the Coast Guard’s
interpretation of the term “voluntary association” in 46 U.S.C.
§ 9304 does impinge on Menkes’s First Amendment rights, any
such interference is justified by the government’s interest in
regulating pilotage on the Great Lakes.
 27

The legislative history of the GLPA indicates the factors at
issue in regulating Great Lakes pilotage – including the need for
maritime safety, the need for coordination between the United
States and Canada, and Congress’s push for the equitable
participation of American nationals in Great Lakes pilotage.
H.R. REP. NO. 86-1666, at 3-4 (1960), reprinted in 1960
U.S.C.C.A.N. 2481, 2483-84. By giving voluntary associations
the discretion to dispatch members, the Coast Guard is acting in
furtherance of these legitimate interests. See Agency Decision
on Remand at 15, J.A. 293 (explaining why the Coast Guard’s
policy is in the public interest). These interests are sufficient to
satisfy Abood. See also Keller, 496 U.S. at 13-14 (holding that
“compelled association” of state bar was justified by the “State’s
interest in regulating the legal profession and improving the
quality of legal services”); Ry. Emps.’ Dep’t, Am. Fed. of Labor
v. Hanson, 351 U.S. 225, 238 (1956) (holding that provision of
Railway Labor Act permitting a “union shop” clause, whereby
every employee is obliged to pay union dues, did not violate
First Amendment).
Menkes has not raised, and we need not address, whether a
Coast Guard-designated pilots’ association could arbitrarily
reject an applicant for membership in that association, or
whether an association could refuse to dispatch a registered non-
member willing to pay all costs of membership, including the
equity stake, and assume all responsibilities shared by
association members. Here, although Menkes was willing to
reimburse the SLSPA for expenses that the Association incurred
on his behalf, he did not offer to purchase the equity stake,
worth approximately $60,000, that members are required to
purchase. Reply Br. at 9. Although Menkes cursorily alleges
the SLSPA “engages in legislative and lobbying activities,”
Appellant’s Br. at 4, he does not allege that the SLSPA used, or
threatened to use, any of his funds for political or ideological
activities unrelated to pilotage, which could run afoul of Abood,
431 U.S. at 236. See also Int’l Ass’n of Machinists v. Street, 367
 28

U.S. 740 (1961) (construing Railway Labor Act to avoid
constitutional question of whether union could spend
employee’s dues for political causes that employee opposes).
Finally, Menkes’s reliance on NLRB v. General Motors
Corp., 373 U.S. 734 (1963), and Local 357, International
Brotherhood of Teamsters v. NLRB, 365 U.S. 667 (1961), is
entirely misplaced. These cases involved the legality of an
agency shop agreement and a hiring hall arrangement under the
National Labor Relations Act. Neither decision addressed the
First Amendment.
D. The Coast Guard’s Decision That Menkes’s Appointment
as an Independent Pilot Expired After the 2003 Season
Menkes proffers a hodgepodge of arguments for why the
Coast Guard’s decision not to dispatch him as an independent
pilot during the 2004 season was arbitrary and capricious in
violation of the APA, 5 U.S.C. § 706(2)(A). None of these
arguments carry the day.
1. Wasserman’s Declaration
Menkes first focuses on the statement in Wasserman’s
declaration, which was offered to supplement the administrative
record pursuant to our remand in Menkes II, that
[i]n letters dated November 5, 2003, and December 15,
2003, and in informal communications that continued
through March of 2004, the SLSPA . . . convinced me that
the pilots’ association really would be able to resolve the
attrition issue in Area 2 and have an adequate number of
pilots there during the 2004 navigation season.
Decl. of Paul M. Wasserman ¶ 16 (May 28, 2008), reprinted in
J.A. 459. Menkes contends that the SLSPA’s November 5 and
December 15 letters do not support a conclusion that the SLSPA
had cured its performance problems with respect to Area 2. We
disagree. The letters clearly provide support for the view that
 29

the SLSPA had not been responsible for the problem of pilot
attrition in Area 2. To the extent that the attrition problem was
attributable to the Association, the December 15 letter notes the
Association’s “recent recruitment and training successes” and
sets forth proposed modifications to the pay structure for pilots-
in-training intended to forestall discontent of new members.
Letter from Roger S. Paulus, President, to Paul M. Wasserman,
Acting Director, Great Lakes Pilotage at 2 (Dec. 15, 2003),
reprinted in J.A. 82. In light of these letters, it was reasonable
for Wasserman to conclude that the Association deserved a
chance to provide adequate pilotage service for the 2004 season.
Menkes also argues that the Coast Guard’s decision was
arbitrary and capricious, because Wasserman’s reliance on
“informal communications” does not reveal either the facts upon
which he relied or his sources of information. While it is true
that the record does not contain a log of each communication
between the SLSPA and Wasserman in 2003, Wasserman’s
declaration does provide a detailed explanation of the reasons
justifying Wasserman’s belief that the SLSPA likely would be
able to provide adequate pilotage service in the 2004 season.
Wasserman concluded that no more than six pilots would be
necessary to provide adequate pilotage service in Area 1 and that
the SLSPA had seven of its own pilots qualified for the area,
making Menkes’s services unnecessary. Decl. of Paul M.
Wasserman ¶¶ 13-19 (May 28, 2008), J.A. 457-61. Menkes
offers nothing to suggest that these calculations were in error or
a fabrication.
Reading Wasserman’s reference to “informal
communications” in context, it is evident that the informal
communications provided factual support for the information
and calculations that led Wasserman to conclude that the SLSPA
could dispatch a sufficient number of its own pilots to provide
adequate pilotage service in 2004. E.g., id. ¶ 17, J.A. 460 (“[B]y
the end of December, 2003, the SLSPA had verbally requested,
 30

and I had verbally approved, authority to open a pilot selection
process to hire additional [Area 2] pilots in time for the 2004
season.”). In fact, Menkes himself wrote the Coast Guard
complaining of a surplus of pilots during the 2003 navigation
season. Letter from Richard J. Menkes to Paul M. Wasserman,
Acting Director of Great Lakes Pilotage (July 8, 2003),
reprinted in J.A. 98 (“At the present time [the SLSPA]
employ[s] too many pilots for the amount of traffic using the
Seaway, and this year is proving to be one of the slowest
navigation seasons on record.”).
At bottom, Menkes argues that the Coast Guard’s decision
is arbitrary and capricious because it fails to record each of the
agency’s informal communications with the SLSPA. We
decline to adopt such a rigid rule. See Menkes II, 486 F.3d at
1314 (“[T]his was an informal adjudication, and it is common
for the record to be spare in such cases.”); see also Bowman
Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286
(1974) (“[W]e will uphold a decision of less than ideal clarity if
the agency’s path may reasonably be discerned.”). Here, it is
clear that Wasserman had communicated with the SLSPA in
2003 and, as a result, became convinced of the merits of the
Association’s plan to provide adequate pilotage service for all of
District One during the 2004 season. Wasserman explained the
basis of his decision through his on-the-record declaration, and
that explanation is sufficient to survive arbitrary-and-capricious
review.
Menkes also argues that Wasserman could not have written
his December 29, 2003 letter terminating Menkes’s appointment
based on communications “that continued through March of
2004,” Decl. of Paul M. Wasserman ¶ 16 (May 28, 2008), J.A.
459. Although that is obviously true, the mere fact that
Wasserman continued to communicate with the SLSPA in early
2004 about this issue does not indicate that Wasserman had no
rational basis for his December 2003 decision to let Menkes’s
 31

appointment expire. Indeed, Wasserman’s behavior was
consistent with the statement in his December 2003 letter to
Menkes and the SLSPA that he would “continue to monitor the
status of the SLSPA after the 2003 navigation season to
determine whether the services of any independent pilots will be
required for the 2004 navigation season.” Letter from Paul M.
Wasserman, Director, Great Lakes Pilotage to Roger Paulus &
Richard Menkes at 2 (Dec. 29, 2003), J.A. 77.
Menkes also contends that Wasserman’s declaration is an
impermissible post hoc rationalization for the Coast Guard’s
action. This argument is meritless. Wasserman’s declaration
was presented in response to this court’s direction to the Coast
Guard to offer an “explanation regarding the changed conditions
from the 2003 to 2004 navigation season” on remand. Menkes
II, 486 F.3d at 1314. “Needless to say, if it is appropriate for a
court to remand for further explanation, it is incumbent upon the
court to consider that explanation when it arrives.” Alpharma,
Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006). As we noted in
Local 814, International Brotherhood of Teamsters v. NLRB,
546 F.2d 989, 992 (D.C. Cir. 1976) (per curiam):
The “post hoc rationalization” rule is not a time barrier
which freezes an agency’s exercise of its judgment after an
initial decision has been made and bars it from further
articulation of its reasoning. It is a rule directed at
reviewing courts which forbids judges to uphold agency
action on the basis of rationales offered by anyone other
than the proper decisionmakers.
Because Wasserman is a “proper decisionmaker,” his
declaration – which explains why the agency allowed Menkes’s
appointment to lapse in 2003 – is not an impermissible post hoc
rationalization.
 32

2. “Extraordinary Circumstance” Standard
Menkes goes on to argue that the Coast Guard’s position
that unaffiliated, independent pilots could only be dispatched in
the event of an “extraordinary circumstance” is a stricter
standard than the regulatory requirement of a “physical or
economic inability to [provide service],” 46 C.F.R.
§ 401.720(b), and that the Coast Guard originally used the
“extraordinary circumstance” standard to allow Menkes’s
appointment as an independent pilot to expire. This issue was
highlighted in Menkes II. We noted that Wasserman’s use of the
phrase “extraordinary circumstances” in his January 22, 2004
letter “seems to be an unexplained, stricter threshold for the
appointment of nonmember pilots than the regulation’s text
contemplates.” 486 F.3d at 1314. In its decision on remand,
however, the Coast Guard clarified that “[t]he phrase
‘extraordinary circumstance’ was only used as a way to describe
the inability of the pilots’ association to provide pilotage
service.” Agency Decision on Remand at 22, J.A. 300. The
viability of the Coast Guard’s explanation is confirmed by
Gilmour’s 2004 letter denying Menkes’s appeal, which made
clear that the “extraordinary circumstance” to which Wasserman
had referred in his December 2003 letter was the “determination
that the SLSPA could not physically provide adequate pilotage
service and there was a serious need for additional qualified
pilots in District One.” Gilmour Letter at 1, J.A. 68.
Consequently, contrary to Menkes’s claims, the Coast Guard did
not “repudiate[ ] its position,” Appellant’s Br. at 22, and did not
act arbitrarily and capriciously in straying from the standard set
forth in 46 C.F.R. § 401.720(b).
3. Specific Comparisons
Finally, Menkes argues that the Coast Guard did not comply
with this court’s instruction in Menkes II to provide “specific
comparisons” explaining why the Coast Guard’s view of the
 33

adequacy of the supply of pilots changed in 2004. Menkes II,
486 F.3d at 1314 n.6. This claim also has no merit.
In his declaration, Wasserman explained that
[b]y December 22, 2003, at the end of the navigation
season, there was one pilot remaining in Area 2 who was
qualified to take vessels into the major ports on the Lake
and there was one new pilot who would, shortly following
the beginning of the 2004 season, be able to take vessels
pilot boat to pilot boat. In addition, by the end of
December, 2003, the SLSPA had verbally requested, and I
had verbally approved, authority to open a pilot selection
process to hire additional Lake pilots in time for the 2004
season.
Id. ¶ 17, J.A. 459-60. We can find no infirmity in the agency’s
explanation, and Menkes offers nothing to convince us that the
Coast Guard failed to comply with the court’s mandate in
Menkes II.
E. Fifth Amendment
Menkes argues that the Coast Guard violated his Fifth
Amendment due process right to a hearing when it decided that
his appointment as an unaffiliated, independent pilot had
expired. We find no merit in this claim.
A person cannot have a protected entitlement “if
government officials may grant or deny [the benefit] in their
discretion.” Town of Castle Rock v. Gonzales, 545 U.S. 748,
756 (2005). 46 C.F.R. § 401.720(b) permits the Coast Guard to
order an unaffiliated, independent pilot to provide pilotage
service if a designated voluntary association cannot provide such
service due to a “physical or economic inability to do so.” This
is a discretionary standard, and whether the SLSPA is able to
provide adequate pilotage service is wholly out of Menkes’s
control. See Glatt v. Chicago Park Dist., 87 F.3d 190 (7th Cir.
 34

1996) (holding that yacht owner did not have entitlement to
particular slip in harbor, when Marine Director could change
assigned slip on grounds of “efficiency” or to address other
circumstances). Although Menkes benefitted from SLSPA’s
inability to provide adequate pilotage service from 2001 through
2003, that, by itself, did not create a constitutionally protected
right to continued dispatch absent a “legitimate claim of
entitlement,” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).
Menkes’s contention that Flyntz’s 2001 letter bolstered his
entitlement to continued dispatch is simply mistaken. As the
District Court pointed out:
Flyntz’s statements did not represent Coast Guard policy.
Furthermore, even assuming Flyntz’s statements were
authoritative, the statement at best created a property
interest in Menkes’s certificate of registration [as a United
States pilot], not in his continued appointment. The Coast
Guard’s decision only affects his ability to be dispatched in
a specific area of the Great Lakes. It has no effect on his
certificate of registration. Thus, even if Menkes has a
property interest in his certificate of registration, he does
not have a property interest in in [sic] serving as a pilot in
a specific area.
Menkes III, 662 F. Supp. 2d at 74 (emphasis in original).
Even if Menkes did have a protected entitlement in being
dispatched as an independent pilot, he received all the process
that he was due under the Fifth Amendment. See Mathews v.
Eldridge, 424 U.S. 319, 334 (1976). Menkes had multiple
opportunities to be heard by the Coast Guard on the issues that
he has raised. For example, in January 2004, after Wasserman
made his initial determination, Menkes appealed to Gilmour and
explained why he believed that Wasserman had erred. Letter
from Edward M. Gleason to Thomas Gilmour, Assistant
Commander for Marine Safety (Jan. 28, 2004), reprinted in J.A.
 35

52-54. Then, in 2007, after this court instructed the District
Court to remand Menkes’s APA claims to the Coast Guard, the
Coast Guard specifically “invite[d] Mr. Menkes to submit any
evidence or arguments he would like the Coast Guard to
consider.” Letter from Paul M. Wasserman, Director, Great
Lakes Pilotage to Jonathan G. Axelrod, Benis[sic], Axelrod &
Kraft, P.C. at 1 (Aug. 9, 2007), J.A. 317. Menkes made such a
submission to the agency, to which the Coast Guard directly
responded. Agency Decision on Remand at 35-37, J.A. 313-15.
Thus, even if Menkes’s alleged right to dispatch was
safeguarded by procedural due process rights, he received all the
process that he was due because he had ample opportunity to
apprise the Coast Guard of his views. See Dr Pepper/Seven-Up
Cos. v. FTC, 991 F.2d 859, 863 (D.C. Cir. 1993) (“Assuming,
arguendo, that [appellant] had a constitutionally protected
interest at stake, we would nonetheless conclude that it was
adequately protected by the informal procedures provided.”); see
also Commercial Drapery Contractors, Inc. v. United States,
133 F.3d 1, 6-7 (D.C. Cir. 1998) (notice and informal hearing
sufficient to satisfy due process).
F. Request for Extra-Record Discovery
Finally, Menkes argues that the District Court erroneously
denied his request to take discovery pertaining to Wasserman’s
“informal communications” with the SLSPA. We disagree. The
District Court applied the proper legal standard and did not
abuse its discretion in denying Menkes’s request. In agency
cases, limited extra-record discovery is only appropriate “when
there has been a strong showing of bad faith or improper
behavior or when the record is so bare that it prevents effective
judicial review.” Baptist Mem’l Hosp.-Golden Triangle v.
Sebelius, 566 F.3d 226, 230 (D.C. Cir. 2009) (quoting
Commercial Drapery, 133 F.3d at 7). We can find no reason to
question the District Court’s determination that Menkes “failed
 36

to make a sufficient showing the agency acted in bad faith.”
Menkes III, 662 F. Supp. 2d at 69.
III. CONCLUSION
For the reasons indicated in the foregoing opinion, the
judgment of the District Court is affirmed.
 37

APPENDIX
excerpts from
Agency Decision on Remand
June 2, 2008
....
The Coast Guard agrees with Mr. Menkes that certificated
pilots’ associations may dispatch non-member pilots and that
such pilots’ associations have in fact done so. However, the
Coast Guard does not agree that the statutes governing Great
Lakes pilotage or the implementing Coast Guard regulations
require certificated pilots’ associations to dispatch every
registered, licensed and qualified pilot who desires to provide
pilotage services. It is the Coast Guard’s position that
certificated pilots’ associations are primarily responsible for
providing adequate pilotage services, and that includes deciding
whether or not to dispatch non-member pilots. . . . [O]nly when
a certificated pilots’ association is not providing adequate
pilotage service would the Director deviate from the policy of
placing primary responsibility for providing pilotage service
with the certificated pilots’ association and intervene to ensure
that adequate pilotage service is provided or notify vessels that
a pilot is not available. This is a longstanding policy based in
part on the Coast Guard’s interpretation of the Great Lakes
Pilotage regulations, dating at least back to about 1975.
....
The Coast Guard’s authority to authorize certificated pilots’
associations is found in 46 U.S.C. § 9304, which states: “The
Secretary may authorize the formation of a pool by a voluntary
association of United States registered pilots to provide for
efficient dispatching of vessels and rendering of pilotage
services.” Coast Guard regulations implementing that provision
are found in 46 C.F.R. Part 401, Subpart C. The regulations
 38

contain qualifications and requirements for formation of a pool
by a certificated pilots’ association, at 46 C.F.R. § 401.320,
including, among other requirements, that the pilots’ association
agree to provide pilots to vessels on a first-come, first served
basis. Significantly, that regulation does not require the pilotage
association to agree to dispatch or admit to the pool every
registered, licensed and qualified pilot who desires to provide
pilotage service.
The regulations also provide at 46 C.F.R. § 401.340 for the
dispatching of non-member pilots. The regulation states in part:
“[f]acilities and service of the pool may be denied to any U.S.
Registered Pilot who fails or refuses to execute [authorizations
relating to billing for services and compliance with work rules,
among other things]. While the regulation specifically grants
the pilots’ association authority to deny the facilities and
services of the pool to pilots refusing to agree to important terms
for participation in the pool, it does not explicitly address
whether a pilots’ association must otherwise make the facilities
and services of the pool available to non-member pilots. The
Coast Guard does not interpret this provision as requiring the
provision of the facilities and services of the pool to every pilot
willing to make the required authorizations or to require the
pilots’ association to dispatch every such pilot.
The Coast Guard also does not interpret the phrase
“voluntary association” found in 46 U.S.C. § 9304, and in the
Coast Guard’s implementing regulations to mean that a
certificated pilots’ association must dispatch every registered,
licensed and qualified pilot who desires to provide pilotage
service. Mr. Flyntz’s letter of March 7, 2001, J.A. 120-21, to
Captain Paulus of the SLSPA contains language emphasizing
the word “voluntary” in 46 U.S.C. § 9304 and suggesting that
the SLSPA and the Coast Guard had to allow Mr. Menkes to
continue providing pilotage service after he left the SLSPA.
....
 39

It is the Coast Guard’s position that any such language in
Mr. Flyntz’s letter was never an authoritative statement of the
agency’s interpretation of the phrase “voluntary association.”
Moreover, even if it was, it was an aberration from the Coast
Guard’s consistent position in more than forty years of
regulating Great Lakes pilotage, and it was quickly superseded
by the final agency action of Mr. High, in his letter dated May
22, 2001, J.A. 114-16, following the SLSPA’s appeal of Mr.
Flyntz’s letter. Mr. High’s letter did not endorse Mr. Flyntz’s
novel interpretation of the phrase “voluntary association,”
instead basing the denial of the SLSPA’s appeal on the authority
of the Director to order a pilot to provide pilotage service in
accordance with 46 C.F.R. § 401.720(b).
....
As a matter of statutory interpretation, it seems that if
Congress had intended 46 U.S.C. § 9304 to have the meaning
that Mr. Menkes asserts, it would have used the word
“voluntary” with “pool” to indicate that the pool should be open
to anyone wanting to provide pilotage service although, even in
that case, the intent of the phrase would not be plain. But as it
is, Congress used the phrase “voluntary association.”
Interpreting the word voluntary to mean that the association
should be open to anyone wanting to provide pilotage service is
again not plain from the statutory language, and such an
interpretation would do Mr. Menkes no good, because he
specifically does not want to join the SLSPA.
Since Congress has not provided a specific meaning or
definition for the phrase “voluntary association,” the Coast
Guard may interpret the phrase and give it a meaning that is
reasonable and consistent with the purpose of 46 U.S.C. § 9304
and 46 U.S.C. Chapter 93 as a whole. Naturally, we start with
the plain meaning to the extent one can be ascertained.
American Jurisprudence 2d, Volume 6, has a Title called
“Associations and Clubs.” Section 1 of that title defines kinds
 40

of associations. It explains that an association is a collection of
persons joined together for a certain object, and that any
unincorporated association is not a legal entity distinct from the
persons who are members. 6 Am Jur 2d, Associations and Clubs
§1. This section goes on to say:
The term ‘voluntary’ is frequently used in connection with
the term ‘association’ or ‘society,’ and some principles of
law are confined, in their operation, to ‘voluntary’
organizations. In this connection, the term means simply
that the organization is one in which one may seek, or be
accepted into, membership in the organization as a matter
of choice.
6 Am Jur 2d, Associations of Clubs §1.
With respect to pilots’ associations, and Great Lakes pilots’
associations in particular, in the more than forty years since the
Great Lakes Pilotage Act of 1960 was enacted, persons wanting
to join a pilots’ association apply to become a member and the
pilots’ association admits those it chooses to accept and who can
meet the requirements to become a registered, licensed and
qualified pilot.
With repsect to membership of voluntary associations,
American Jurisprudence states:
Membership in a voluntary unincorporated association
is generally held to be a privilege which may be accorded
or withheld, and not a right which can be gained
independently and then enforced.
6 Am Jur 2d, Association and Clubs § 18.
It is the Coast Guard’s position that Congress used the
phrase “voluntary association” only in the sense suggested by
the above mentioned language from American Jurisprudence 2d
– i.e., a collection of persons joined together for a certain
purpose, and not a legal entity distinct from the persons who are
 41

members. The Coast Guard considers this to be a reasonable
interpretation of the phrase as it is used in 46 U.S.C. § 9304, and
that this meaning is consistent with the purpose of that provision
and 46 U.S.C. Chapter 93 as a whole.
....
With respect to Great Lakes pilotage, the Coast Guard
understands that Congress intended to regulate pilotage on the
Great Lakes and intended to give the Coast Guard authority to
delegate to certificated pilots’ associations the operation of
pilotage pools “to provide for efficient dispatching of vessels
and rendering of pilotage services.” 46 U.S.C. § 9304. It is the
Coast Guard’s view that this should include allowing the
certificated pilots’ associations to decide if they will dispatch
non-member pilots. Of course, the certificated pilots’
associations’ power to operate pilotage pools is always subject
to the Director’s authority to register Great Lakes pilots, in
accordance with 46 C.F.R. Part 401, Subpart B; to set pilotage
rates with target compensation based on an assumed reasonable
number of pilots to provide adequate pilotage service, in
accordance with 46 C.F.R. Part 404; and, to generally oversee
the provision of pilotage services, in accordance with 46 U.S.C.
Chapter 93 and 46 C.F.R. Chapter III.
....
The Coast Guard has determined that Congress intended to
allow the agency to delegate primary responsibility for the
operation of pilotage pools to certificated pilots’ associations,
and that delegating that responsibility is in the public interest.
That responsibility includes deciding whether or not to dispatch
non-member pilots. Delegating responsibility to the certificated
pilots’ associations is in the public interest because it removes
the Director from day to day involvement in the operation of the
pilotage pools and allows him to focus on oversight of the Great
Lakes pilotage operations. It also allows the pilots’ associations
 42

that traditionally have brought organization and efficiency to the
provision of pilotage service to apply their expertise to the
operation of the pool. And it promotes the availability of the
necessary infrastructure for safe and efficient pilotage – such as
pilot boats, and office functions including billing. It promotes
retention of pilots, by giving the pilots in the association some
control over decisions that will affect the financial health of the
pilots, the pilots’ association and other entities that may provide
infrastructure support to the pilots.
....
Finally, to be very clear, the Coast Guard has no interest in
whether Mr. Menkes joins the SLSPA or any other pilots’
association. That is a matter entirely up to him and to the pilots’
association if he wants to apply for membership. Additionally,
it is not the position of the Coast Guard that Mr. Menkes must
join a pilots’ association if he wants to provide pilotage service.
The Coast Guard agrees with Mr. Menkes that under the
applicable statutes and regulations the certificated pilots’
associations may dispatch non-member pilots who are
registered, licensed and qualified to provide pilotage service.
However, the Coast Guard does not agree that the certificated
pilots’ associations have to dispatch non-member pilots. The
certificated pilots’ associations are primarily responsible for
operation of the pilotage pool, and they may decide whether or
not to dispatch non-member pilots.
Agency Decision on Remand from the Court of Appeals for the
District of Columbia and the District Court for the District of
Columbia in the Case of Richard J. Menkes v. Dep’t of
Homeland Sec., et al. (June 2, 2008) at 8-16, reprinted in J.A.
286-94.
 BROWN, Circuit Judge, dissenting in part:

This is not an easy case. The court recognized as much
before our initial remand, acknowledging “[t]he statutory
question is potentially a difficult one,” and urging the Coast
Guard to provide a “forthright agency interpretation.”
Menkes v. Dep’t of Homeland Sec. (“Menkes II”), 486 F.3d
1307, 1313–14 (D.C. Cir. 2007). The Coast Guard did not
heed our advice. The process the Coast Guard instituted on
remand, as well as the agency’s proffered interpretation of the
relevant statute and/or its own regulations still provides little
light for those lost at sea.

Neither the Coast Guard’s Agency Decision on Remand
nor the court’s opinion identifies precisely what is being
interpreted: the statute, the Great Lakes Pilotage Act
(“GLPA”), or the agency regulations. The Agency Decision
on Remand focuses on the Coast Guard’s regulations, 46
C.F.R. §§ 401.320 and 401.340. But at the same time, the
Agency Decision on Remand purports to define the term
“voluntary association”—a phrase that appears only in the
statute. The court’s opinion, by comparison, suggests the
question is one of “statutory interpretation” and that “we are
constrained to address . . . the Coast Guard’s construction and
application of the statute.” Maj. Op. 17. Yet the court
focuses on the Coast Guard’s regulations and their animating
policies—not the statute—when justifying the deference it
gives and the reasonableness of the agency’s “statutory”
construction. Maj. Op. 21, 23.

Different interpretive processes implicate different levels
of deference, and ultimately this case is about deference—
whether it is owed, and if so, how it would be applied.
Whether the Coast Guard is interpreting the statute or its own
regulations, however, its interpretation stems from an
informal adjudication. As a result, the path to deference is not
as simple as the court makes it seem. If this is an agency
 2
regulation case, our precedent requires notice and comment
when modifying an interpretation of an agency regulation—a
process the Coast Guard did not institute on remand. If this is
a statutory interpretation case, the minimum safeguards
required by the Administrative Procedures Act (“APA”) are
necessary—procedures the Coast Guard also did not
implement on remand. Either way, the agency is not entitled
to the reflexive and uncritical sort of deference the court gives
here.

At bottom, the Coast Guard argues allowing the SLSPA
to compel membership and screen pilots before dispatching
them to work on the Great Lakes is consistent with the term
“voluntary.” Even assuming deference is owed, this statutory
gloss—framed as an interpretation of the agency’s own
regulations or as an interpretation of the statute itself—seems
both dubious and pernicious. Therefore, I dissent.1

I

Although an agency is “entitled to significant deference
in interpreting its own regulation—perhaps even more than an
agency gets in interpreting a statute under Chevron”—it is
unlikely we would defer to an unreasonable agency
interpretation of an ambiguous regulation. Kidd Commc’ns v.
FCC, 427 F.3d 1, 4 (D.C. Cir. 2005); see Paralyzed Veterans
of Am. v. D.C. Arena, L.P.,117 F.3d 579, 584 (D.C. Cir. 1997)
(citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994)); see also HARRY T. EDWARDS & LINDA A. ELLIOTT,
FEDERAL COURTS STANDARDS OF REVIEW: APPELLATE COURT
REVIEW OF DISTRICT COURT DECISIONS AND AGENCY
ACTIONS 165 (2007). An agency may tweak its interpretation
either through general rulemaking or by adjudication. See

1
I dissent only from the court’s resolution of Menkes’s APA claim.
 3
SEC v. Chenery Corp., 332 U.S. 194, 202–03 (1947). But,
once an agency gives its regulation a definitive interpretation,
“‘it can only change that interpretation as it would formally
modify the regulation itself: through the process of notice and
comment rulemaking.’” Alaska Prof’l Hunters Ass’n v. FAA,
177 F.3d 1030, 1034 (D.C. Cir. 1999) (quoting Paralyzed
Veterans, 117 F.3d at 586). An agency has less flexibility in
“changing its interpretation of its regulations than in altering
its construction of a statute” because the APA defines
“rulemaking” to include “not only the agency’s process of
formulating a rule, but also the agency’s process of modifying
a rule.” Id. (citing 5 U.S.C. § 551(5)).

The Coast Guard’s first interpretive effort was put
forward by Director Flyntz in the 2001 informal adjudication
that set the present controversy in motion. See Chenery, 332
U.S. at 202 (stating an agency may promulgate regulatory
“rules” by “individual order,” i.e. in an informal
adjudication). We summarized Mr. Flyntz’ position in
Menkes II: “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.’” 486 F.3d at 1309 (quoting Letter
from F.J. Flyntz, Director, Great Lakes Pilotage to Roger
Paulus, President, SLSPA at 1 (Mar. 7, 2001) [hereinafter
Flyntz March Letter], reprinted in J.A. 131). Flyntz
emphasized that “‘[a] pilotage pool is a voluntary association
of registered pilots,’ (citing 46 U.S.C. § 9304), 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.’” Id. (alterations in
original). Flyntz specifically noted: “resignation from the
Association does not . . . provide any basis for the Coast
Guard to deny him the opportunity to continue to earn his
 4
livelihood as a U.S. registered pilot.” Id. (alteration in
original).2

Yet in 2003, Paul Wasserman, the newly appointed
Director, presented a different view. See Letter from Paul M.
Wasserman, Director, Great Lakes Pilotage to Roger Paulus
& Richard Menkes at 2 (Dec. 29, 2003) [hereinafter
Wasserman December Letter], reprinted in J.A. 76. Mr.
Wasserman (and Commandant Gilmour who affirmed
Wasserman’s informal adjudication when the SLSPA
challenged it) read § 401.720(b) as creating a preference for
the Association so long as the Association has the physical
and economic ability to meet demand. Id. Further, Gilmour
noted in 2004 that “Captain Menkes is free to apply to the
[Association] 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.”
Letter from T.H. Gilmour, Real Admiral, U.S. Coast Guard to
Edward M. Gleason, Beins, Axelrod, Kraft, Gleason &
Gibson, P.C. at 2 (Apr. 2004) [hereinafter Gilmour April
Letter], reprinted in J.A. 68. In other words, Menkes would
have to apply to the Association to “continue to earn his

2
The court argues J.P. High’s regulatory interpretation “displaced
Flyntz’s.” Maj. Op. 23. But High affirmed Flyntz’s decision,
although he did so on alternate grounds. See Letter from J.P. High,
Director of Waterways Mgmt., to Mark Ruge, Preston, Gates,
Ellis & Rouvelas, Meeds LLP at 2–3 (May 22, 2001), J.A. 126-
27. High did not expressly reject Flyntz’s interpretation or even
implicitly suggest it was not the agency’s governing regulatory
reading. Id. The fact remains, the Coast Guard’s regulatory
interpretation is far from “long standing.” Maj. Op. 23. The
Agency Decision on Remand cites no previous agency decision
articulating its interpretation. Nor does the Coast Guard point the
court to such authority on appeal.
 5
livelihood as a U.S. registered pilot.” Flyntz March Letter,
supra page 3.

On remand, the Coast Guard “view[ed] Mr. Menkes’s
challenge to be a matter that is governed entirely by 46 C.F.R.
§ 401.720(b).” Agency Decision on Remand at 7, J.A. 285.
In so doing, the agency specifically disavowed Mr. Flyntz’
regulatory interpretation, arguing it was “never an
authoritative statement,” but rather, “an aberration.” Id. at
10–11, J.A. 288–89 (finding Flyntz’s statements “more
consistent with exercising the authority granted in 46 C.F.R.
§ 401.720(b) than it is with an interpretation of 46 U.S.C.
§ 9304”). The Agency Decision on Remand thus adopted Mr.
Wasserman’s interpretation. But this leaves the Coast Guard
with a problem the court’s opinion never acknowledges: there
have been two informal adjudications interpreting the
agency’s regulations, and they are contradictory.

If Wasserman’s interpretation of the Coast Guard
regulations is definitive, so is Flyntz’s. Both men held the
same position in the agency—Director of the St. Lawrence
Seaway District. And, both made a decision about the same
controversy—Captain Menkes’s ability to work as an
independent pilot. The fact that the Agency Decision on
Remand validated Wasserman’s view does not resolve the
underlying contradiction. Nor does it transform Wasserman’s
interpretation into one of greater authoritative worth than
Flyntz’s. Under this court’s precedents, a definitive
interpretation can only be changed through rulemaking. See
Paralyzed Veterans, 117 F.3d at 586; EDWARDS & ELLIOTT,
supra page 2. Furthermore, even had the Coast Guard
followed appropriate procedures, deference will not save a
regulatory interpretation that is plainly erroneous or
inconsistent with the agency’s enabling statute. See
Paralyzed Veterans, 117 F.3d at 584 (“It is certainly not open
 6
to an agency to promulgate mush and then give it concrete
form only through subsequent less formal ‘interpretations.’”);
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844 (1984) (stating regulations cannot be
“manifestly contrary” to their enabling statute); see also
EDWARDS & ELLIOTT, supra page 2, at 163 (citing Stinson v.
United States, 508 U.S. 36, 45 (1993)). If, as seems likely,
the Coast Guard actually means to interpret the statute, there
are other problems.

II

“Not every agency interpretation of a statute is
appropriately analyzed under Chevron.” Ala. Educ. Ass’n v.
Chao, 455 F.3d 386, 392 (D.C. Cir. 2006) (Ginsburg, J.)
Chevron deference is afforded those interpretations having the
“force of law.” United States v. Mead Corp., 533 U.S. 218,
229–30 (2001). It does not apply to an agency’s litigation
position, which provides a post hoc rationalization. See
Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212
(1988); Landmark Legal Found. v. IRS, 267 F.3d 1132, 1135–
36 (D.C. Cir. 2001). Nor does Chevron govern an agency
declaration unaccompanied by those procedural safeguards
ensuring proper administrative practice. See Mount Royal
Joint Venture v. Kempthorne, 477 F.3d 745, 754 (D.C. Cir.
2007) (citing Mead, 533 U.S. at 235; Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944)); see also Christensen v. Harris
County, 529 U.S. 576, 587 (2000) (“[I]nterpretations
contained in policy statements . . . which lack the force of
law . . . do not warrant Chevron-style deference.”); NLRB v.
United Food & Commercial Workers Union Local 23, 484
U.S. 112, 123 (1987) (finding Chevron deference appropriate
when regulations are “promulgated pursuant to congressional
authority”). “Otherwise the Administrative Procedure Act,
which specifies how delegated power is to be exercised,
 7
would be a dead letter.” Krzalic v. Republic Title Co., 314
F.3d 875, 882 (7th Cir. 2000) (Easterbrook, J., concurring).

In Menkes II, the Coast Guard “did not have a forthright
agency interpretation of the statute.” Menkes II, 486 F.3d at
1313. In fact, the Flyntz and Wasserman letters presented
contradictory positions. As a result of this disparity, the
Menkes II court instructed the Coast Guard to “come to grips
with the meaning of the statute, and particularly, the meaning
of the term ‘voluntary association.’” Menkes II, 486 F.3d at
1314.

Assuming the Agency Decision on Remand represents the
Coast Guard’s definitive interpretation of the GLPA, the
hallmarks of “fair and considered” judgment are absent. As
previously noted, the Coast Guard did not conduct notice-and-
comment rulemaking before promulgating its Agency
Decision on Remand. Nor did the Agency reach its
interpretive conclusion after formal adjudication. The
procedures the agency employed on remand did not even
meet the minimum procedural requirements contemplated for
“informal adjudication” in the APA, such as the consideration
of “evidence contradicting [the agency’s] position.” See Butte
County, Cal. v. Hogen, 613 F.3d 190, 194–196 (D.C. Cir.
2010) (discussing, in part, procedural safeguards set up by
§ 706 review); Safe Extensions, Inc. v. FAA, 509 F.3d 593,
604 (D.C. Cir. 2007) (stating informal adjudication may
consist of evidence outside the administrative record).

The agency controlled the process and the record on
remand. After initially inviting Menkes to submit additional
documents, see Letter from Paul M. Wasserman, Director,
Great Lakes Pilotage to Jonathan Axelrod at 1 (Sep. 20, 2007)
[hereinafter Wasserman September Letter], reprinted in J.A.
333, the agency expressed concerns with Menkes’s
 8
submissions, noting they contained unauthorized employee
affidavits and interposing claims of privilege that were never
subjected to court review, see Letter from Paul M.
Wasserman, Director, Great Lakes Pilotage to Jonathan
Axelrod at 1–2 (Oct. 18, 2007) [hereinafter Wasserman
October Letter], reprinted in J.A. 421; see also Agency
Decision on Remand at 35–37, J.A. 313–315. The agency
said it would not consider evidence “improperly provided,”
not “relevant or necessary for the Coast Guard’s decision.”
Wasserman October Letter, supra page 7, or outside the
administrative record, Wasserman September Letter, supra
page 7. But when the Coast Guard finally released the
Agency Decision on Remand, it relied heavily on information
outside the administrative record, notably a self-serving
declaration by Paul M. Wasserman and informal
communications between Wasserman and the SLSPA.
Agency Decision on Remand at 3, J.A. 281. Pertinent here,
the agency excluded evidence suggesting the agency began
setting its policies only after conferring with SLSPA lawyers
in a deliberate attempt to better accommodate the Association.
See Lawler Aff. ¶ 5, reprinted in J.A. 349; Flyntz Aff. ¶ 9g,
reprinted in J.A. 412 (suggesting political and lobbying
pressure changed Coast Guard procedures and personnel).
More than contradict certain statements in Wasserman’s
affidavit, Menkes’s excluded evidence suggests his ouster was
a predetermined act intended to curry favor with the
Association, not the byproduct of a fair consideration of
competing arguments. According to the agency, Menkes’s
proffered evidence was simply irrelevant. Agency Decision
on Remand 36, J.A. 314. But determining relevancy ab initio
is an all but impossible task unless the desired end is certain.

I do not mean to suggest our remand order transformed
any subsequent interpretation by the Coast Guard into a ruling
without the “force of law.” To the contrary, the Coast Guard
 9
had every opportunity to proceed in a fair and considered
manner, following the APA’s procedural requirements for
delegated agency action. The agency simply chose not to do
so.

Unlike agency positions taken as a result of more
structured adjudicatory proceedings, whether formal or
informal in nature, nothing binds the Coast Guard to its
current interpretation of the GLPA. The Agency Decision on
Remand is not published or readily available to the public—a
factor distinguishing the Coast Guard’s decision from a
virtual laundry-list of other agencies.3 As a result, the Agency
Decision on Remand does not provide traditional rule-of–law
values: it is not publically knowable; it lacks any assurances
of stability; and litigants cannot rely upon it when challenging
contrary agency action in the future. See Sprint Corp. v.
FCC, 315 F.3d 369, 373 (D.C. Cir. 2003) (describing
informal adjudication as “‘lack[ing] the firmness of a
[prescribed] standard,’” not “‘affect[ing] subsequent [agency]
acts,’” and having no “‘future effect’”) (second and fourth
alterations in original) (quoting Sugar Cane Growers Coop. v.
Veneman, 289 F.3d 89, 95–96 (D.C. Cir. 2002)); see also
William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of
Deference: Supreme Court Treatment of Agency Statutory
Interpretations from Chevron to Hamdan, 96 GEO. L. J. 1083,
1169–70 (2008) (arguing deference is most appropriate when
agency process supports rule-of-law values). In sum, because
the Coast Guard “abjure[d] the APA’s procedures for making
decisions,” Krzalic, 314 F.3d at 882 (Easterbrook, J.,
3
See, e.g., THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION
218–28 (Columbia Law Review Ass’n et al. eds., 19th ed. 2010)
(providing a non-exclusive list of over thirty different agencies, and
their various sub-branches, which publish their administrative
decisions).
 10
concurring), and because the resulting unpublished Agency
Decision on Remand does not promote traditional rule-of-law
values, the court owes the agency’s interpretation of the
GLPA nothing more than careful consideration. See
Skidmore, 323 U.S. at 140.

The court argues the Agency Decision on Remand is a
“legislative regulation[] given controlling weight” because the
Coast Guard acted pursuant to authority delegated to it by the
GLPA. Maj. Op. 19. This is certainly true with respect to
regulations promulgated after notice-and-comment
rulemaking. But the Coast Guard’s regulations existed when
we decided Menkes II; they are not the source to which we
now look for the agency’s “forthright . . . interpretation of the
statute.” Menkes II, 486 F.3d at 1313. A mere nod to the
delegating statute in the Agency Decision on Remand does not
in itself trigger the application of Chevron. Otherwise magic
words could defeat Mead’s metric for proper obligatory
deference and a mere citation could turn the Agency Decision
on Remand into one carrying the “force of law.” See Krzalic,
314 F.3d at 883 (“Chevron does not require courts to
implement ‘interpretations’ that agencies announce without
following the APA’s requirements for rulemaking: following
forms is a condition attached to the delegation.”)
(Easterbrook, J., concurring). Mead declared Chevron
deference appropriate only where Congress both “delegated
authority to the agency . . . and . . . the agency interpretation
claiming deference was promulgated in the exercise of that
authority.” 533 U.S. at 226–27. Thus, under Mead, all
expressly delegated agency action does not garner an Article
III rubberstamp. If that were the case, we would have
deferred to the Health Care Financing Administration’s PRO
manual in Public Citizen, Inc. v. Department of Health &
Human Services, 332 F.3d 654, 659–60 (D.C. Cir. 2003), the
settlement agreement in Southeastern Federal Power
 11
Customers v. Geren, 514 F.3d 1316, 1327 (D.C Cir. 2008)
(Silberman J., concurring), and judges would apply Chevron
to interpretations of the Sherman Antitrust Act by the
Attorney General or interpretations of RICO by prosecutors,
cf. United States v. Western Elec. Co., 900 F.2d 283, 297
(D.C. Cir. 1990).

The court also says Chevron deference is owed under
Barnhart v. Walton, 535 U.S. 212, 222 (2002). Maj. Op. 20–
21 But Walton is an odd case upon which to rely as it
involved regulations promulgated after notice-and-comment
rulemaking and clearly entitled to deference under Mead.
Walton, 535 U.S. at 217. Mead, of course, acknowledges
Chevron may apply amidst more informal circumstance, but
fails to elaborate further. Walton fills this doctrinal gap in
dicta by suggesting various factors define Chevron’s
applicability when notice-and-comment rulemaking does not
occur. Yet I do not read Walton’s dicta to gut the framework
Mead painstakingly constructed the year before—separating
and sequencing questions concerning the deference owed an
agency and those concerning statutory interpretation. This is
especially true given Chevron’s approach—accepting “a
range of permissible interpretations” and that “the agency is
free to move from one to another”—calls into serious doubt
Walton’s reliance on the vintage of an agency’s interpretation.
Walton, 535 U.S. at 226 (citing Rust v. Sullivan, 500 U.S.
173, 186–87 (1991); Chevron, 467 U.S. at 863–64).

In any event, the Walton factors do not “indicate that
Chevron provides the appropriate legal lens through which to
view the legality of the Agency interpretation here at issue.”
Walton, 535 U.S. at 222. First, the court suggests the GLPA
authorizes the Coast Guard “to set parameters for voluntary
associations.” Maj. Op. 20. But this conflates “voluntary
associations” and “pilotage pools.” The statutory text only
 12
authorizes the Coast Guard to promulgate rules pertaining to
the latter, not the former. 46 U.S.C. § 9304(b) (“For pilotage
pools, the Secretary may— . . . .”) Furthermore, the GLPA
enumerates five ways the Coast Guard may regulate pilotage
pools, none of which include the authority to limit pilotage
pools’ composition—such as by requiring registered pilots to
be members of a “voluntary association”—to anything but
“United States registered pilots.” Second, the court argues
deference is appropriate because the Agency Decision on
Remand addresses “interstitial” questions, the potential
ramifications of which could “impact[] myriad aspects of the
regulatory scheme.” Maj. Op. 21. Of course, the
pervasiveness of the court’s suggested ramifications implies
the question presented does not fill a regulatory “gap,” but
rather strikes at a keystone of regulatory design. Either way,
the Coast Guard does not make this argument and there is no
record evidence these “ramifications” will come to fruition.
For starters, how the Association would apportion costs if it
chose to dispatch non-members pro-rata remains a mystery.
Further, these “ramifications” could only occur if non-
association members—like Menkes—could free-ride, and
Menkes offers to pay his “share of the costs,” which
presumably includes the equivalent of an equity stake in the
association and any sur-charge assessed for dispatching the
pilotage pool on a pro-rata basis. And even if the court’s
predictions prove correct, the “interstitial” nature of the
question presented is but one of Walton’s many non-
dispositive factors. Finally, unlike this case, the regulations in
Walton “reflect[ed] the Agency’s own longstanding
interpretation.” 535 U.S. at 219. The court’s insinuation the
same is true here is risible. We remanded in Menkes II
because the Coast Guard “did not have a forthright agency
interpretation of the statute,” let alone an interpretation it
consistently applied over time. The court accepts the
agency’s bald assertion that its interpretation of “voluntary
 13
association” is longstanding. But the Agency Decision on
Remand cites no previous agency decision articulating its
interpretation and only cryptically refers to a past settlement
between the agency and the pilots’ association, which
pertained to the “wording of 46 C.F.R. § 401.720(b),” not
§ 9304 of the GLPA. Agency Decision on Remand at 9, J.A.
287.

In Menkes II, we characterized the Coast Guard’s varied
interpretations as deriving from an “informal adjudication”
with a sparse record and questioned whether deference would
be owed such a proceeding under Mead. Menkes II, 486 F.3d
at 1314. Unfortunately, remand was no remedy. The
proceedings remain far-removed from “notice-and-comment
process” and “other circumstances reasonably suggesting” the
Coast Guard’s newfound interpretation has the “effect of
law.” Mead, 533 U.S. at 230, 231. The theoretical
framework for administrative review assumes a structured,
rule-of-law infused process. In reality, however, the process
is often an ad hoc and idiosyncratic pastiche in which the
rules, and the rules of engagement, can be distressingly
protean. This case is a paradigmatic example. Regardless if
the Agency Decision on Remand interprets Coast Guard
regulations or the GLPA itself, deference is not appropriate.

III

The GLPA authorizes the creation of “a pool by a
voluntary association of United States registered pilots to
provide for efficient dispatching of vessels and rendering of
pilotage services.” 46 U.S.C. § 9304(a). As the court
concludes: “[i]t is not clear from the text of 46 U.S.C. § 9304
whether a voluntary association can decide to dispatch only
its members, for the term ‘voluntary association’ is
undefined.” Maj. Op. 22. To this extent, I agree. The term
 14
“voluntary association” is a changeling, capable of multiple
meanings. But the absence of a statutory definition does not
mean Congress failed to answer the question at issue. A
careful analysis of the meaning commonly ascribed to
“voluntary association,” § 9304(a)’s plain language, the
broader statutory context, and the underlying purpose of the
GLPA reveals a more precise meaning.

As a preliminary matter, an “association” is not
“voluntary” if “membership . . . is necessary, in a substantial
sense, for the practice of one’s profession.” BALLENTINE’S
LAW DICTIONARY 1350 (3d ed. 1969). This definition
comports not only with its legal usage at the time Congress
passed the GLPA, see id. at 1350 (defining “voluntary
association” as “[a]n association in which one may seek, or be
accepted into, membership as a matter of choice.”) (citing 6
AM. JUR. 2d Associations and Clubs § 1), but also how courts
utilize the term in the case law, see, e.g., Goldfarb v. Va. State
Bar, 421 U.S. 773, 776 (1975) (contrasting the Fairfax
County Bar Association, which “as a purely voluntary
association of attorneys . . . ha[d] no formal power to enforce”
a bar requirement, with the Virginia State Bar, in which
“membership . . . is required in order to practice in Virginia”);
Lathrop v. Donohue, 367 U.S. 820, 832–33 (1961) (plurality
opinion) (noting that “integrated” bars arose because efforts to
accomplish the desired ends “through voluntary association
had not been effective”; “membership in the voluntary
association ha[d] become static”); Int’l Ass’n of Machinists v.
Street, 367 U.S. 740, 796 (1961) (Black, J., dissenting)
(contrasting union-shop agreements with “[u]nions composed
of a voluntary membership,” and explaining that “to the
extent that Government steps in to force people to help
espouse the particular causes of a group, that group—whether
composed of railroad workers or lawyers—loses its status as a
voluntary group”); In re China Union Lines, Ltd., 342 F.
 15
Supp. 426, 428–29 (E.D. La. 1971) (characterizing a pilots’
association as a “purely voluntary private organization” where
a member could be divested of his membership “and, yet,
continue to retain his commission and work as a licensed
Crescent River Port Pilot”); Firemen’s Pension Fund, by
Smith v. Minnaugh, 80 Pa. D. & C. 297, 303 (C.P. Dauphin
Cty. 1951) (“The element of voluntary association is lacking
in the Firemen’s Pension Fund. This fund was established by
legislative mandate. Membership in the fund is involuntary
and contributions thereto are made mandatory upon the paid
members of the fire department.”). Thus in context, the term
“voluntary association” means the Coast Guard has to provide
pilotage services through registered pilots and can utilize
voluntary associations to handle recruitment, training, and
dispatch.

The language of § 9304(a), and the Coast Guard’s own
interpretive regulations promulgated thereunder, do not
support the Coast Guards’ interpretation, as neither equates
“pilotage pools” from which registered U.S. pilots are
dispatched, with “voluntary associations” potentially tasked
with administering the dispatch of pilots from the pools. The
statutory text says the Coast Guard “may authorize the
formation of a pool by a voluntary association.” 46 U.S.C.
§ 9304 (emphases added). The court makes this same error,
suggesting at times the SLSPA is a “pilotage pool,” Maj. Op.
6, and at times it is a “voluntary association,” Maj. Op. 2.
Moreover, under existing Coast Guard regulations, voluntary
associations “can establish” a pool or pools, thereby
indicating the two terms are not interchangeable. 46 C.F.R.
§§ 401.300, 401.320, 401.340(b). Indeed, at least one
regulation (46 C.F.R. § 401.340) provides for the dispatch of
non-member pilots from the pilotage pool and “grants the
pilots’ association authority to deny the facilities and services
of the pool to pilots refusing to agree to important terms for
 16
participation in the pool.” Agency Decision on Remand at 9–
10, J.A. 287–88. Although the Coast Guard may be correct in
arguing § 401.340 does not “explicitly address whether a
pilots’ association must otherwise make the facilities and
services of the pool available to non-member pilots,” Agency
Decision on Remand at 9, J.A. 287, it fails to recognize that
§ 401.340 implicitly does just that. If the reasons for denying
a pilot dispatch are not limited to a refusal to pay or a
violation of work rules, the association could refuse to
dispatch a pilot on mere whim, without any specific rule
authorizing its denial. Section 9304 suggests pilotage pools
and voluntary associations are separate, distinct, and not
coextensive. The Coast Guard’s own regulations support this
point by outlining specific criteria governing when a
voluntary association may deny registered pilots access to
pilotage pools. Membership in a voluntary association is not
the same as, and need not be a precondition for, membership
in the pilotage pool.

The greater statutory context also sheds an interpretive
light. Section 9303 requires U.S. registered pilots to meet
certain “standards of competency.” 46 U.S.C. § 9303(a). If a
pilot meets these “conditions for service,” id. § 9303(d), the
Coast Guard must “issue . . . a certificate of registration,” id.
§ 9303(b). In this respect, the GLPA promotes maritime
safety by explicitly setting objective standards of qualification
for registered U.S. pilots, including requiring applicants to
“have a license as a master, mate, or pilot,” id. § 9303(a)(1),
and to have at least twenty-four months’ experience operating
towing vessels on the Great Lakes, id. § 9303(a)(2).
Interpreting “voluntary association” in § 9304 to allow the
association ultimate control over the dispatch process imposes
an additional subjective and a-textual condition for
employment of registered pilots—membership in the
Association. It is no longer sufficient for an applicant to meet
 17
the regulatory “conditions for service” if he cannot also
navigate the politics of the association. As a result, a
certification process designed to focus on safety circuitously
becomes one focused on sycophancy. Here, Menkes sought
work through the Association as a non-member. The SLSPA
refused to dispatch him, however, and even informed the
Canadian pilot association that Menkes could not be
dispatched in District One despite his standing as a registered
U.S. pilot. See letter from Roger S. Paulus, President, St.
Lawrence Seaway Pilots’ Association, to Robert Lemire at
(March 26, 2004), reprinted in J.A. 62.

The Agency, in contrast, relies on a series of descriptions
gleaned from a general encyclopedia of law, American
Jurisprudence, to support its argument that allowing the
SLSPA to compel membership and screen pilots before
dispatching them to work on the Great Lakes is consistent
with the way “voluntary” is used in the statute. Agency
Decision on Remand 12, J.A. 290. The court capitulates,
swept away by the under-current of a powerful deference
regime. I find Chevron’s ebb tide less beguiling. Why would
the government delegate authority to a voluntary group,
operating without constraints, to have complete power over
someone’s livelihood? The Association could impose a rule
by nepotism, or discriminate on the basis of race, gender,
religion, or just plain cussedness, insulated from
constitutional scrutiny only by the porous and symbolic
distinction between state and private action. In any event,
American Jurisprudence did not always define “voluntary
association” in this way. During the time Congress passed the
GLPA, as well as in the decades following, the encyclopedia
read:

The term “voluntary” is frequently used in
connection with the term ‘association’ or ‘society,’
 18
and some principles of law are confined, in their
operation, to ‘voluntary’ organizations. In this
connection, the term means simply that the
organization is one in which one may seek, or be
accepted into, membership in the organization as a
matter of choice. If membership is required by
legislative mandate, as in the case of public
officers or employees, such an organization is not a
‘voluntary’ organization.

6 AM. JUR. 2d Associations and Clubs § 1 (1963); see 6 AM.
JUR. 2d Associations and Clubs § 1 (2007) (same).

Allowing the Association exclusive control over the
composition of pilotage pools also creates an odd incentive
and undermines the safety-promoting purpose of the GLPA.
Recall, when the association has a “physical or economic
inability to [provide service],” the Coast Guard may order
“any U.S. registered pilot to provide pilotage service.” 46
C.F.R. § 401.720(b). Thus, to maintain control, the
Association must be able to provide adequate service.
Between the 2001 and 2003 navigation seasons, the
Association faced an attrition problem which left it physically
unable to provide adequate pilotage service. The court
suggests the SLSPA was not responsible for the pilot attrition
problem. This may be true. But I do not understand its
relevance. If the association’s service is not adequate, the
Coast Guard can act. Moreover, to the extent the attrition
problems resound from issues with recruitment, training, and
pilot compensation, they suggest the SLSPA was responsible.
The Association solved its attrition problem by hiring both
contract pilots, including one who “had never been certified
as an independent pilot,” J.A. 357, and new pilots who had
not finished the statutory required training and needed “to
receive a temporary registration permitting them to go pilot
 19
boat to pilot boat while continuing their training for ports,”
J.A. 311. Thus, in lieu of a registered pilot with over thirty
years’ experience, seasoned and intimately familiar with the
water in which he works, the Association dispatched pilots
with the equivalent of learners’ permits to maintain exclusive
control over the pilotage pool.

The court upholds the reasonableness of the agency’s
interpretation at Chevron step two by focusing on various
perceived gains in efficiency. Notably, the court accepts the
Coast Guard’s rationale that allowing “voluntary
associations” to exclude registered pilots from the pilotage
pool (1) “‘removes the Director from day to day
involvement’”; (2) “‘allows the pilots’ associations . . . to
apply their expertise’”; and (3) “‘promotes retention of pilots,
by giving the pilots in the association some control over
decisions that will affect the financial health of the pilots, the
pilots’ association and other entities that may provide
infrastructure support to the pilots.’” Maj. Op. 23 (quoting
Agency Decision on Remand at 15, J.A. 293).

Of course, the Director’s removal from day-to-day
operations would occur whether the association dispatches
non-members or not. It is also difficult to defend the
Association’s monopoly power as efficiency producing when
applying more exacting scrutiny. Generally speaking, market
competition—not cartels—produce efficiency gains and
public benefit, which in this context may mean the dispatch of
more experienced pilots and greater overall safety. Cartels,
on the other hand, improve the profitability of their own
participants. Or, as the Coast Guard might say: “‘giv[e] the
pilots in the association some control over decisions that will
affect the financial health of the pilots.’” Maj. Op. 23
(quoting Agency Decision on Remand at 15, J.A. 293).
 20
Finally, although I agree Menkes v. St. Lawrence Seaway
Pilots’ Ass’n, 269 F. App’x. 54, 55 (2d Cir. 2008), precludes
Menkes’s First Amendment claim, I do not think the
underlying constitutional issues—if properly presented—are
so clear cut. The canon of constitutional avoidance therefore
also cautions against the Coast Guard’s statutory reading. See
Clark v. Martinez, 543 U.S. 371, 385 (2005) (“The canon of
constitutional avoidance comes into play only when, after the
application of ordinary textual analysis, the statute is found to
be susceptible of more than one construction; and the canon
functions as a means of choosing between them.”) (emphasis
omitted) (citing Almendarez-Torres v. United States, 523 U.S.
224, 237–38 (1998); United States ex rel. Attorney General v.
Del. & Hudson Co., 213 U.S. 366, 408 (1909)); Rust v.
Sullivan, 500 U.S. 173, 191 (1991) (discussing constitutional
avoidance as a means of circumventing “grave and doubtful
constitutional questions.”). By raising constitutional
avoidance I do not mean to suggest a constitutional violation
has occurred; nor that “grave” constitutional questions persist.
This is not a case in which competing interpretations are in
equipoise. I invoke constitutional avoidance in the alternative
only to suggest the constitutional question is not as simple as
the court makes it seem; to the extent the canon colors
interpretation of the statute, its gloss does not favor the Coast
Guard’s reading.

The court relies upon “agency shop” cases for the
proposition that the Coast Guard can compel Association
membership as a condition of employment. Maj. Op. 25–26.
This reliance strikes me as misplaced. Unlike “agency shop”
cases, no “free-rider” problem exists here. See Keller v. State
Bar of Calif., 496 U.S. 1, 12 (1990) (“The reason behind the
legislative enactment of ‘agency-shop’ laws is to prevent ‘free
riders . . . .’”); Abood v. Detroit Bd. of Educ., 431 U.S. 209,
221–22 (1977) (“A union-shop arrangement . . . counteracts
 21
the incentive that employees might otherwise have to become
‘free riders,’ to refuse to contribute to the union while
obtaining benefits of union representation that necessarily
accrue to all employees.”). Captain Menkes offers to pay his
“share of the expenses,” Or. Arg. 32:57–33:00, and the
Association does not dispute he did so during the 2001, 2002,
and 2003 navigation seasons.4 In addition, the government’s
interest here—regulating pilotage—does not justify impinging
Menkes’s First Amendment rights in the same manner as the
government’s interest in the “agency shop” cases. Exclusive
union representation “is a central element in the congressional
structuring of industrial relations.” Abood, 431 U.S. at 220.
Utilization of a voluntary association, by comparison, is not
mandatory; the Coast Guard’s authorization to do so is
discretionary.

The more apt analog is the Supreme Court’s professional
licensure cases. In Schware v. Board of Bar Examiners of
New Mexico, a State Board of Bar Examiners prohibited an

4
The court says Menkes “did not offer to purchase the equity stake
. . . that members are required to purchase.” Maj. Op. 26. It is true
Menkes objects to the requirement that he purchase stock in
Seaway Pilots, Inc., which owns the pilot boats. But the relevant
Coast Guard regulations allow the voluntary association to “bill for
services,” 46 C.F.R. § 401.340(b), and registered pilots must
“comply with [the association’s] working rules,” id. § 401.340(a).
Menkes signed a “written authorization” agreeing to do just that.
At oral argument, Menkes reiterated he would pay his “share of the
expenses.” Or. Arg. 32:57–33:00. It does not follow from
Menkes’s objection that his “share” does not include any marginal
fixed costs incurred by Seaway Pilots, Inc. on-top of whatever
operational costs incurred by the Association when Menkes is
dispatched. The regulations allow the inclusion of such costs when
the Association bills Menkes.
 22
applicant from sitting for the bar exam because he was
previously a member of the communist party. 353 U.S. 232,
234–35 & n.2 (1957). The Court held the act unconstitutional
under the Due Process Clause, reasoning the state bar
association could not exclude an individual from the practice
of law because the individual failed to satisfy a “standard[] of
qualification” having no “rational connection with the
applicant’s fitness or capacity to practice [a given trade].” Id.
at 238–39; see also Dent v. State of West Virginia, 129 U.S.
114, 124 (1889) (upholding medical licensing requirements
because the requirements were not arbitrary). Applied here,
Schware and Dent serve a useful warning. Wielding the
government’s imprimatur, the “voluntary association” can
arbitrarily exclude qualified pilots from working on the Great
Lakes. The court suggests Menkes did not raise this point.
Maj. Op. 26. But this is just wrong. Throughout this
litigation, Menkes alleged the SLSPA engaged in nepotism
and arbitrary membership decisions. See, e.g., Menkes Aff. ¶
Exhibit A, reprinted in J.A. 159. Of course, arbitrary
exclusionary practices have not always sounded constitutional
alarms in the context of tug-boat pilotage. In Kotch v. Board
of River Port Pilot Commissioners for Port of New Orleans
the Court approved regulations condoning nepotistic hiring of
river boat pilots, allowing in effect the exclusion of applicants
on the basis of race, gender, or religion. 330 U.S. 552, 565
(1947) (“Blood is, in effect, made the crux of selection.”).
Curiously, the state justified its regulations on a “relationship
to the end of securing an efficient pilotage system” there too.
Id.

In sum, I do not read the term “voluntary” to compel
Association membership. This interpretation comports with
the common definition of the term “voluntary association,”
the plain language of § 9304, the surrounding statutory
context, and the underlying purpose of the GLPA. It also
 23
avoids constitutional implications which may occur when the
Government condones the use of arbitrary means of excluding
individuals from their chosen profession. Even applying
Chevron’s deferential standard, I would reverse the district
court in part, holding the Coast Guard’s interpretation of
§ 9304 as unreasonable and “contrary to law.” 5 U.S.C.
§ 706(2).

IV

In Menkes II, the Coast Guard’s inability to explain its
actions was troubling. The court went to considerable lengths
to suggest the appropriate seriousness with which the agency
should have approached the opportunity to clarify itself on
remand. This is not an easy case. Nor should it be. It ought
to be difficult to conclude Congress condoned the
establishment of a cartel or guild unfettered by the strictures
of the APA to which the responsible federal agency would be
subject. What public interest does ceding so much power to
the Association serve? Why should the Association be free to
act arbitrarily and capriciously when the Coast Guard clearly
could not? On remand, the Coast Guard apparently eschewed
judgment in favor of justification. In the process, the agency
jettisoned even the most minimal procedural safeguards
designed to ensure it acted in a “fair and considered” manner.
Consequently, I do not believe deference is due.

Pilotage on the Great Lakes is a difficult and dangerous
job. Those who choose it as a profession often come from a
certain proud lineage. The GLPA regulates the profession by
setting out safety requirements and other responsibilities for
the Coast Guard to administer. For example, if it so chooses,
the Coast Guard “may authorize the formation of a pool by a
voluntary association . . . for efficient dispatching of vessels
and rendering of pilotage services.” 46 U.S.C. § 9304. I do
 24
not read this language to allow the “voluntary” association to
compel membership in its organization before dispatching
pilots. Such an interpretation seemingly conflicts with the
definition of “voluntary association,” the statute’s plain
language, broader context, and underlying purpose. But
reading the statute in this way, the Coast Guard places the
government’s imprimatur behind the Association, providing it
monopoly power over District 1 pilots, and allowing the
Association to exclusively set the conditions under which
pilots may work. Granted, the Supreme Court previously
condoned a similarly arbitrary and discriminatory exercise of
state power against constitutional attack; and it did so in the
context of river boat pilots, a profession that shares more with
Great Lakes pilotage than just its nautical roots. See Kotch,
330 U.S. at 565. But I am confident that decision is a relic of
a time past, now serving only as a historical bookmark, rather
than a contemporary statement of the law. The court’s
deference makes me question whether I am too optimistic.