                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

 RICHARD J. MENKES,                                )
                                                   )
         Plaintiff,                                )
                                                   )
                 v.                                )   Civil Case No. 04-1456
                                                   )
 DEPARTMENT OF HOMELAND                            )
 SECURITY, UNITED STATES                           )
 COAST GUARD, and ASSISTANT                        )
 COMMANDANT JAMES F. AMOS,.                        )
                                                   )
        Defendants.                                )

                                                       OPINION
                                (Septembe          2009) [#23, #24]

        This case concerns a dispute between Richard J. Menkes ("Menkes"), a ship pilot,

and an association of registered pilots responsible for ensuring pilotage services in certain

areas of the Great Lakes pursuant to a delegation from the Coast Guard. Menkes, in

essence, wants to be a ship pilot on certain areas of the Great Lakes without being a

member of the St. Lawrence Seaway Pilots' Association (the "Association").

        In 2004, Menkes filed suit against the Department of Homeland Security, the

United States Coast Guard, and then-Assistant Commandant T.H. Gilmour, alleging they

violated his constitutional and statutory rights in deciding that the Coast Guard's order to

dispatch him would expire at the end of2003, and that the Coast Guard would thus have



IPursuant to Federal Rule of Civil Procedure 25(d), if a public officer named as a party to an
action in his official capacity ceases to hold office, the court will automatically substitute that
officer's successor. Accordingly, the Court substitutes James F. Amos for T.H. Gilmour.
to determine whether his services would be needed for 2004. 2 This Court granted the

Coast Guard's summary judgment motion. But the Court of Appeals reversed and

remanded the case to this Court to issue an order remanding the case back to the Coast

Guard for further proceedings and an adequate explanation of the basis for its decision

and the basis for its interpretation of the apposite statutes and regulations. Menkes v.

Dep't of Homeland Sec., 486 F.3d l307 (D.C. Cir. 2007).

       On remand, the Coast Guard again denied Menkes's claims, but provided further

explanation for its previous decision. Before this Court are new Motions for Summary

Judgment filed by the parties. Specifically, Menkes argues the Coast Guard violated the

Administrative Procedures Act, his First Amendment's guarantees of free association, and

the Due Process Clause. This Court disagrees and DENIES Menkes's motion and

GRANTS the defendants' motion.

                                      BACKGROUND 3

       A pilot is required for certain types of ships to navigate through specific areas of

the Great Lakes. See 46 U.S.C. §§ 9301 et seq.; see also 46 C.F.R. § 401.300(a). To

provide pilotage services efficiently, the statute allows the Coast Guard to establish


2Menkes also filed suit in the Second Circuit against the Association itself alleging the
Association violated federal antitrust and state business laws, and the First Amendment freedom
of association. Menkes v. St. Lawrence Seaway Pilots' Ass 'n, 269 Fed. Appx. 54, 55 (2d. Cir.
2008).

3For additional background, see Menkes v. Department of Homeland Security, 486 F.3d 1307
(D.C. Cir. 2007), and Menkes v. Department of Homeland Security, 402 F. Supp. 2d 204 (D.D.C.
2005).

                                               2
"pilotage pools" fonned by associations of registered pilots. 46 U.S.C. § 9304. Under

the Coast Guard's regulations, the Coast Guard can order a non-Association member to

provide pilotage services when the Association is not providing pilotage services

"because of a physical or economic inability to do so." 46 C.F.R. § 401.720(b).

According to the Coast Guard, this regulation gives associations, and not the Coast

Guard, the primary responsibility for dispatching pilots, and forecloses the Coast Guard's

ability to appoint independent pilots unless the Association is incapable of providing

services. According to Menkes, the Coast Guard had been dispatching him for three

years without consistently applying or interpreting this regulation, thus indicating that its

decision to allow his dispatch order to expire before the 2004 season was arbitrary and

capncIOus.

       Menkes quit the Association in 2000, but he wanted to continue providing pilotage

services as an independent pilot. The Coast Guard's Director of Great Lakes Pilotage at

the time, Frank 1. Flyntz, detennined that the Coast Guard could continue to dispatch

Menkes notwithstanding his lack of Association membership. In explaining his decision,

Flyntz stated that under the statute, the Coast Guard may authorize associations that are

"voluntary." (Flyntz letter, 03/07/01, Joint Appendix [Okt. # 23-2] ("JA") 120) (citing 46

U.S.C. § 9304)). Flyntz also stated Menkes had "a vested property right in the certificate

of registration." (ld.) Although the Coast Guard had not yet clarified its interpretation of

Flyntz's decision when this case was before our Court of Appeals, the Coast Guard has



                                              3
since explained that Flyntz's broad interpretation of the regulation was never the Coast

Guard's official interpretation. Indeed Flyntz's decision was appealed, and upheld on

much narrower grounds. (Agency Decision on Remand at 10 [Dkt # 21-2].)

       In upholding Flyntz's decision that Menkes could continue to be dispatched, then-

Director Jeffrey High ("Mr. High") did not base his decision on either the "voluntary"

nature of associations or a finding that Menkes had a property right in being dispatched.

To the contrary, Mr. High determined that under the regulation, Flyntz had the authority

to dispatch Menkes because the Association was unable to provide adequate pilotage

services. (High letter, 5/22/01 at 3 (JA 116).)

       In 2003, the Association wrote to Flyntz's replacement, Paul M. Wasserman, and

explained that the Association could provide adequate services and thus the Coast Guard

lacked authority under the regulation to appoint independent pilots. (St. Lawrence

Seaway Pilots' Association letter, 8/20103 (JA 87).) When Wasserman responded, he

never disputed that he lacked authority to appoint independent pilots if the Association

provided adequate services, (Wasserman 10/22/03 letter (JA 83-84)), contending instead

that the Association remained unable to provide adequate services because management

policies had led to an attrition problem. (Id.) Thus, because the Coast Guard was

incapable of providing adequate services, Wasserman concluded that it could continue to

appoint Menkes as an independent pilot.




                                             4
       In December 2003, Menkes wrote Wasserman complaining about the Association

and seeking the Coast Guard's approval to take steps to prepare for being dispatched in

the 2004 season as an independent pilot. (Menkes letter, 12/15/03 (JA 69-70).)

Wasserman wrote to both Menkes and the Association explaining that Menkes's dispatch

as an independent pilot was predicated on the former director's determination that the

Association was unable to provide adequate services for the remainder of the 2003

season. (Wasserman letter, 12/29/03 (JA 66-67).) Accordingly, Wasserman concluded

that Menkes could be dispatched until the end of that season. However, because he

believed the Association would likely be able to provide services for the 2004 season,

Wasserman informed him that Menkes's appointment would "naturally expire" at the end

of the 2003 season. (Id) Wasserman, of course, would continue to monitor the

Association's ability to provide services in the 2004 season. (Id) Indeed, the next

month, Wasserman again clarified to Menkes that his status as an independent pilot was

not permanent, but was contingent on the Coast Guard's determination that the

Association was unable to provide the necessary services. (Wasserman letter, 01122/04

(JA 63) (noting that Menkes's "status as an independent pilot has been predicated on a

determination by [Wasserman's] office that an extraordinary circumstance exists").)

Menkes contends, amazingly, these letters from Wasserman were his first indication that

his appointment was not permanent.




                                            5
       Menkes appealed Wasserman's decision within the Coast Guard, and his appeal

was denied by Rear Admiral T.H. Gilmour in April 2004. (Gilmour letter, 04112/04 (JA

58-59).) Gilmour noted Menkes had "some fundamental misunderstandings concerning

Great Lakes pilotage and the status of Captain Menkes as an independent pilot." (Id.)

Specifically, Gilmour explained that under the regulation, Menkes's appointment as an

independent pilot was predicated on the Coast Guard's determination that the Association

is incapable of providing adequate pilotage services. (Id. (citing 46 C.F .R.

§ 401.720(b)).)

       Menkes appealed Gilmour's decision, and this Court granted the Coast Guard's

Motion to Dismiss. See Menkes, 402 F. Supp. 2d at 210. The Court of Appeals disagreed

and ordered a remand to this Court for the purpose of remanding the matter to the Coast

Guard for further explanation of its decision to allow the order to expire. Menkes, 486

F 3d at 1315. In particular, the Court of Appeals relied largely on the broad language

from Flyntz's determination and expressed concern that the Coast Guard had changed its

interpretation of the regulation. Id. On remand, the Coast Guard again denied Menkes's

APA claim and provided further explanation for its previous decision. Not surprisingly,

Menkes appealed to this Court, alleging violations of the AP A, freedom-of-association

right under the First Amendment, and his due process rights. For the following reasons

this case too must be dismissed.




                                             6
                                           ANALYSIS

       Both parties have filed Motions for Summary Judgment. 4 Summary judgment is

appropriate if the case record "show[s] that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

I.     AP A Analysis

       The Court sets aside an agency action only when the action is "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C.

§ 706(2)(A). "Normally, an agency rule would be arbitrary and capricious if the agency

has relied on factors which Congress has not intended for 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 v. State Farm, 463 U.S. 29, 43 (1983). Additionally, an agency action is arbitrary




4Menkes's memorandum in support of his motion for summary judgment exceeded page
limitations allowed by the local rules, which provide that a "memorandum of points and
authorities in support of or in opposition to a motion shall not exceed 45 pages ... without prior
approval of the court." Local Rule LCvR 7(e). The Coast Guard has moved to strike the
memorandum because it is forty-seven pages, or two pages over the limit. This Court has
discretion to accept the memorandum, despite it violating the local rules, and, given the de
minimis nature of the violation and the drastic nature of striking Menkes's motion, this Court
exercises its discretion and accepts Menkes's memorandum in its entirety. See United States ex
reI. K & R Ltd. Partnership v. Mass. Hous. Fin. Agency, 456 F. Supp. 2d 46,56 (D.C. Cir. 2006)
(noting motions to strike "are strongly disfavored, and the decision of whether to strike all or part
of a pleading or attachment thereto rests within the sound discretion of the court").

                                                  7
and capricious if the action is an unexplained change in policy from past decisions.

Intercity Transp. Co. v. United States, 737 F.2d 103, 108 (D.C. Cir. 1984).

       A.     Defining the Administrative Record

       Before analyzing Menkes's AP A claim, a word is necessary regarding the scope of

the administrative record. Generally, courts can review decisions of administrative

agencies based only on the record that was available to the agency at the time it made its

decision. IMS, P.e. v. Alvarez, 129 F.3d 618, 623-24 (D.C. Cir. 1997).

       In this case, however, the Court must now consider additional evidence because, as

the Court of Appeals found, the Coast Guard's failure to explain its action precluded

effective judicial review. Menkes, 486 F.3d at 1314-15 (citing Camp v. Pitts, 411 U.S.

138, 142-43 (1973)). As a result, this Court will now consider both the agency's

explanation, as provided by Wasserman's 2007 affidavit, (Decl. of Paul Wasserman,

Exhibit 9 [Dkt. #21-12]), and the Coast Guard's Decision on Remand, (Decision on

Remand [Dkt. #23-2]), but only to the extent that it is explaining its previous justification.

The Coast Guard cannot provide new justification for its actions because "[t]he validity of

the [agency's] action must ... stand or fall on the propriety of' the Coast Guard's initial

justification for not dispatching Menkes. Camp, 411 U.S. at 143.

       The Coast Guard's final agency action was based on 46 C.F.R. § 401.720(b),

which provides that the director has authority to dispatch independent pilots only if the

Association is incapable of doing so. (Gilmour letter, 04112/04 (JA 58-59).) Thus, to the


                                              8
extent the Coast Guard's Decision on Remand and the newly submitted Wasserman

declaration further explains the previously stated rationale, this Court will consider it.

See Camp, 411 U.S. at 142-43.

       Thus, Menkes's unsubstantiated argument that this Court should permit him to

conduct discovery, (Mem. in Support of PI's Cross-Motion for Summ. J. [Dkt. # 24]

("PI' s Cross-Mot.") at 2), and rely on additional evidence outside of the record, (ld. at 15

n.7), is to no avail. Only in narrow circumstances when a party makes a "strong showing

of bad faith or improper behavior" can the record be supplemented. s IMS, P.e., 129 F.3d

at 624 (internal quotation omitted).

       Menkes does not specifically attempt to establish this strong showing. To the

contrary, he asks this Court to assume the Coast Guard acted in bad faith. (PI's Cross-

Mot. at 14.) Menkes's vague allegations of bad faith appear to be based only on the

extra-record evidence itself, which this Court cannot consider, and on the Coast Guard's

alleged inconsistency in interpreting and applying the regulation. (ld. at 14-16.)

However, as explained below, this Court finds the Coast Guard was not inconsistent in

interpreting and applying the regulation. Menkes has thus failed to make a sufficient


5This is because "the reasonableness of the agency's action is judged in accordance with its stated
reasons," so "[a]gency deliberations not part of the record are deemed immaterial." In re
Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 156 F.3d 1279,
1279 (D.C. Cir. 1998). Indeed, Menkes cannot ever use extra-record evidence to make this
strong showing. San Luis Obispo Mothers for Peace, et al., v. us. Nuclear Reg. Comm 'n, 789
F.2d 26,45 (D.C. Cir. 1986) ("Petitioners must make the requisite showing before we will look
at the transcripts. We will not examine the transcripts to determine if we may examine the
transcripts. ").

                                                9
showing the agency acted in bad faith, and thus the Court will not pennit discovery or

consider additional extra-record evidence. See Baptist Mem. Hosp.-Golden Triangle v.

Sebelius, 566 F.3d 226, 230 (D.C. Cir. 2009); IMS, P.e., 129 F.3d at 624; Commercial

Drapery Contractors, Inc. v. United States, 133 F.3d 1, 7 (D.C. Cir. 1998).

       B.     AP A Discussion

       On remand, the Coast Guard further explained its interpretation of the regulation.

Specifically, the Coast Guard elaborated on: (l) its interpretation of the word "voluntary,"

(2) its interpretation of the phrase "extraordinary circumstances," and (3) its

detennination that Menkes's status as an independent pilot would "naturally expire" at the

end of the 2003 season because the Association was likely to be capable of providing

services in 2004. With respect to these points, the Coast Guard's interpretation of its

regulations has been both reasonable and consistent with its longstanding policy.

              1.     Voluntary Association

       In response to the Court of Appeals's directive to "come to grips with the meaning

of the statute, and, particularly, the meaning of the tenn 'voluntary association,'" Menkes,

486 F.3d at 1314, the Coast Guard has explained that the phrase 'voluntary association'

does not mean that a certified pilots' association must "dispatch every registered, licensed

and qualified pilot who desires to provide pilotage service," (Decision on Remand at 15).

To the contrary, "[v]oluntary" only means that the association must be a group of people

"joined together for a certain purpose." (ld. at 12.) This interpretation strikes me as


                                             10
reasonable and consistent with the Coast Guard's previously applied policy. In fact, the

only evidence in the record suggesting the Coast Guard's decision was based on a

different interpretation of the word "voluntary" is Flyntz's March 2001 letter. (See Flyntz

letter, 03/07/01 (JA 120).) However, as the Coast Guard explained in its decision on

remand, Flyntz's decision was appealed and affirmed on much narrower grounds.

Although the Court of Appeals made frequent reference to the Flyntz's decision, it

understandably did not make a finding that his decision was supported by the record. To

the contrary, upon closer review, it appears to this Court that the Flyntz' expansive

rhetoric was, at best, abnormal. "Flyntz's letter was never an authoritative statement of

the agency's interpretation of the phrase 'voluntary association.'" (See Decision on

Remand at 10.) Indeed, the Coast Guard itself characterized it as such and pointed out

how it was inconsistent with "more than forty years of regulating Great Lakes pilotage."

(Id.) Small wonder "it was quickly superseded by the final agency action of Mr. High,"

(id.),6 which was based on the very C.F.R. Section that allows the Director to order a non-

Association member to provide pilotage service when the Association is not providing

services "because of a physical or economic inability to do so." 46 C.F .R. § 401. 720(b).




6Menkes asserts that ifthis Court determines it cannot rely on Flyntz's decision because it was
appealed, it also cannot rely on Wasserman's decision, because it was also appealed. However,
as the Coast Guard explains, to the extent Flyntz's decision is broader than Mr. High's, it was not
accepted by the Coast Guard, whereas Wasserman's decision was both affirmed and relied on by
the Coast Guard. (Defs Mem. in Support of Mot. for Summ. J. [Dkt. # 23] at 15.)

                                                11
For all of these reasons this Court finds the Coast Guard's interpretation of "voluntary"

was reasonable and consistent with its previously applied policy.

              2.     Extraordinary Circumstance

       As Gilmour noted in his April 12, 2004, letter, Menkes was dispatched as an

independent pilot by the Director based on "his determination that the [Association] could

not physically provide adequate pilotage service and there was a serious need for

additional qualified pilots in District One." (Gilmour letter, 04/12/04 at 1 (JA 58).)

According to Gilmour, Menkes's "continued service as an independent pilot was, and is,

contingent upon that extraordinary circumstance remaining in effect." (Id.) The Court of

Appeals, based on the record before it, questioned whether the Coast Guard's use of the

phrase "extraordinary circumstance" meant that there was another prerequisite to

Menkes's service in addition to the Association's "physical or economic inability" to

provide service. Menkes, 486 F.3d at 1310-14. The Court of Appeals also seemed to

question whether this was a reasonable interpretation of the regulation. Id.

       Menkes, of course, asserts that the Coast Guard was applying this "extraordinary

circumstance" and that this standard is a stricter standard than that which the regulation

contemplated. In that regard he specifically notes that "extraordinary circumstance"

could not have been synonymous with the Association's inability to provide services

because the Association was unable to provide services the previous three seasons as

well. (PI's Cross-Mot. at 29-30.)


                                             12
         However, on remand the Coast Guard further explained that a separate

"extraordinary circumstance" did not need to be determined as a supplemental to the

Association's "physical or economic inability" to provide pilotage services. (See

Decision on Remand at 22.) Indeed, as Wasserman explained in his post-remand

declaration, the phrase "extraordinary circumstances" is the phrase he believed fairly

characterized a situation "[flor more than forty years" whereby the Coast Guard had to

give associations primary responsibility for providing these services. (Wasserman Decl.

~   4.) Furthermore, before appointing Menkes, the Coast Guard had not used its authority

to order a non-Association member to provide services. (Jd.) Moreover, Gilmour himself

used that phrase in his April 2004 letter that to describe this situation where "a pool is not

providing pilotage services," thereby necessitating "the Director to take action to order

any u.s. registered pilot to provide pilotage services." (Gilmour letter, 04/12/04 (JA 58)

(emphasis added).) Gilmour also noted that Menkes's "continued service as an

independent pilot was, and is, contingent upon that extraordinary circumstance [when the

Association 'could not physically provide adequate pilotage service'] remaining in

effect." (Jd.) For these reasons, the Court finds the Coast Guard did not, and will not,

impose a higher threshold for service than that contemplated by the regulation.

               3.     Naturally Expired

        Next Menkes characterizes the Coast Guard's decision to let his appointment

"naturally expire" at the end of 2003. Menkes, 486 F.3d at 1310. Menkes would like this


                                             13
Court to believe that the Coast Guard gave him a permanent appointment to be dispatched

as an independent pilot and therefore, Flyntz's opinion that it would "naturally expire" at

the end of the 2003 season represents a sharp change in agency policy and is therefore

arbitrary and capricious. I disagree. Putting aside the broad language in Flyntz's decision

that was never an authoritative statement of agency policy, the Coast Guard has

consistently explained that its authority to appoint Menkes was predicated on the

Association's inability to provide adequate services. (High letter, 05/22/01 (JA 114);

Wasserman letter, 10/22/03 (JA 83-84).) It was therefore unreasonable for Menkes to

believe he had a permanent appointment to provide services. Indeed, when Wasserman

learned at the end of 2003 that the Association would likely be able to provide services

for the 2004 season, he limited his order for Menkes to provide services for the remainder

of the 2003 season. He also stated he would nevertheless continue to monitor the

Association's abilities to provide services and even held out the possibility that Menkes

could be ordered to provide services later. Wasserman's conclusion that his order would

naturally expire at the end of the 2003 season is both consistent with previous Coast

Guard policy and the Coast Guard's belief that it lacked authority under the regulation to

dispatch Menkes unless the Association was incapable of providing services.

       Next, the Court of Appeals directed the Coast Guard to elaborate its reasons for

finding the Association would likely be able to provide services for the 2004 season. It

did. Specifically, the Court of Appeals directed the Coast Guard to square its conclusion


                                             14
that the Association would have the ability to provide services for the 2004 season, with

its determination at the end of 2003 that the Association was still having difficulties in

providing the necessary services. Menkes, 486 F.3d at 1314. In that regard, our Circuit

Court commented that the Coast Guard's explanation would need to include "specific

comparisons" between the two seasons in order to adequately explain its decision. Jd. 7

       In response, the Coast Guard noted that while the Association was having

difficulties providing adequate pilotage services at the end of 2003, (Wasserman letter,

12/29/03 at 2 (JA 66)), the evidence available at the time indicated the Association would

be able to provide adequate services for the 2004 season. Specifically, there was a

downward trend in vessel traffic between 2001 and 2003, and no more than six pilots

were needed in the relevant area of the Great Lakes during those years. Indeed, Menkes

himself recognized this downward trend, as he wrote in a July 2003 letter that the

Association had too many pilots for the amount of traffic. (Decision on Remand at

28-32.) Also, while the Association had a pilot-attrition problem in one geographic area,

it had too many pilots serving in another. (Wasserman Decl. ~ 11.) Thus, for the 2004

season, unlike seasons before, the Association came up with "a workable plan to address"



7This Court concludes that the Coast Guard's determination that the Association was not able to
provide services in 2003 but may be able to provide services in 2004 is a reasonable
determination. However, even if the Coast Guard did not determine the Association could
provide adequate services, this Court is not convinced the Coast Guard would be required to
dispatch Menkes. The regulation provides only that the Coast Guard "may" order a pilot to
provide services in the event that the Association is unable to do so, not that the Coast Guard is
required to do so. 46 C.F.R. § 401.720(b); (see also Decision on Remand at 16.)

                                                15
the attrition problem. (Jd.) Moreover, the Association expected additional pilots would

be available to serve. (Id.,-r 18.) In fact, Wasserman himself was in the process of

completing the pilotage projections for the 2004 season, which eventually determined the

Association had more than enough pilots to meet demand. (Jd.,-r 12.) Thus, based on

these comparisons, the Coast Guard found the Association would likely be able to provide

adequate services for the 2004 season.

       Menkes argues nonetheless that Wasserman's findings were not specific enough

and that he instead "acted upon an expectation or hope" that the Association would be

able to provide adequate pilotage service. (PI's Cross-Mot. at 26.) I disagree. This Court

has no basis to impose on the Coast Guard a requirement of absolute certainty. Indeed, to

impose such a requirement would be contrary to the "good deal of deference" this Court

must accord to the Coast Guard's determination of "whether the association was

physically or economically able to provide adequate service" under the arbitrary and

capricious standard. Menkes, 486 F.3d at 1313.

       Thus, for all of the foregoing reasons, this Court finds that the agency's

decision-that Menkes's order for dispatch would expire and resume if the Coast Guard

determined the Association was incapable of providing adequate pilotage services-was

reasonable and in accordance with the Coast Guard's consistent interpretation of the

regulation.




                                             16
II.    First Amendment Claim

       Regarding Menkes's First Amendment claim, he argues the Coast Guard violated

his right to refuse to associate by conditioning his right to being dispatched as a pilot

upon his rejoining the Association. (PI's Cross-Mot. at 35.) This claim, however, is

precluded by the Second Circuit's decision in Menkes v. St. Lawrence Seaway Pilots          J




Association, 269 Fed. Appx. 54 (2d Cir. 2008), a case in which Menkes alleged the

Association violated his First Amendment association rights. Regarding this claim, the

Second Circuit held "[w]ithout violating the Constitution, the government can compel an

individual to join a professional association as a condition of employment." Id. at 56.

       This Court finds, based on the Second Circuit's decision, that issue preclusion bars

Menkes from raising his First Amendment claim in this case. '''[O]nce a court has

decided an issue of fact or law necessary to its judgment, that decision may preclude

relitigation of the issue in a suit on a different cause of action involving a different cause

of action involving a party to the first case.'" Yamaha Corp. v. United States, 961 F .2d

245,254 (D.C. Cir. 1992) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). The three

elements of issue preclusion are established here. First, Menkes is raising the same issue

as he did in his Second Circuit case. Second, the First Amendment issue was "actually

and necessarily determined by" the Second Circuit. And finally, applying preclusion in

this case would "not work a basic unfairness to" Menkes. Id. Therefore, this Court finds

Menkes is precluded from raising his First Amendment claim in this case. See Amore ex


                                              17
reI. Estates ofAmore v. Accor, S.A., 484 F. Supp. 2d 124, 129 (D.D.C. 2007) (applying

preclusion to a plaintiff s complaint because it "alleges the same facts and raises the same

legal issues as the action in New York").

III.   Due Process Claim

       Finally, the Court of Appeals found that Menkes's due process claim under the

Fifth Amendment "raises quite troublesome issues" and that "if it were showing that

[Menkes] had a property interest in such assignments as the pilotage pool could not meet,

then he would be entitled, under the Fifth Amendment, to a further hearing to determine

whether conditions constituting adequate pilotage service actually existed." Menkes, 486

F.3d at 1315. Menkes, however, has not shown he has a property interest in serving as an

independent pilot.

       As noted above, the Coast Guard explained repeatedly that he was only able to

provide services as an independent pilot if the Association was unable to do so. Menkes

therefore objectively knew that his continued appointment was conditional. Menkes

attempts to rely on Flyntz's statement that Menkes "has a vested property right in his

certificate of registration" as the basis for his contention. Unfortunately for him,

however, 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, not in his continued appointment. The

Coast Guard's decision only affects his ability to be dispatched in a specific area of the


                                             18
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 serving as a pilot in a specific area. See Cafeteria and Rest. Workers Union v.

McElroy, 367 U.S. 886, 896 (1961) (denying a plaintiffs Fifth Amendment claim

because she "remained entirely free to obtain employment [elsewhere]. All that was

denied her was the opportunity to work at one isolated and specific [location]").

Accordingly, Menkes's due process claim must also fail.

                                       CONCLUSION

       For all of the reasons stated above, this Court will GRANT the Defendants'

Motion for Summary Judgment and will DENY the Plaintiffs Cross-Motion for

Summary Judgment. An Order consistent with this decision accompanies this

Memorandum Opinion.
                                                           /
                                                   r,teluJ~
                                                   RICHARD~
                                                   United States District Judge




                                              19
