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).
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.
[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 **392 *326 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 [104 S.Ct. 2778, 81 L.Ed.2d 694] (1984). But putting aside the question raised by United States v. Mead Corp., 533 U.S. 218 [121 S.Ct. 2164, 150 L.Ed.2d 292] (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 necessary to meet appellant's administrative law challenge, it is also essential ... to meet his constitutional claims.
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].
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).
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.
[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.
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.
[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.
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.
[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.
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.
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. If membership is required by legislative mandate, as in the case of public officers or employees, such an organization is not a ‘voluntary’ organization.
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