“Federal agencies may not subdelegate their ‘decision-making authority * * * to outside entities—private or sovereign—absent affirmative evidence of authority to do so.’”
How later courts described this case
- “Federal agencies may not subdelegate their ‘decision-making authority * * * to outside entities—private or sovereign—absent affirmative evidence of authority to do so.’”
- rejecting petitioners’ claim of dissimilar treatment when “[t]he record [did] not bear [it] out”
- “[A]n agency does not act arbitrarily if it treats dissimilar parties differently[.]”
- “When an agency offers multiple grounds for a decision, we will affirm the agency so long as any one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that basis if the alternative grounds were unavailable.”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 29, 2024 Decided May 2, 2025
No. 23-5273
MATTHEW J. HIGHT,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET
AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-03277)
Jeffrey H. Redfern argued the cause for appellant. With
him on the briefs were Robert Johnson and Daniel Nelson.
Patrick Morrisey, Attorney General, Office of the
Attorney General for the State of West Virginia, Lindsay S.
See, Solicitor General at the time the brief was filed, Michael
R. Williams, Principal Deputy Solicitor General at the time the
brief was filed, Tim Griffin, Attorney General, Office of the
Attorney General for the State of Arkansas, Raúl Labrador,
Attorney General, Office of the Attorney General for the State
of Idaho, Brenna Bird, Attorney General, Office of the
2
Attorney General for the State of Iowa, Kris Kobach, Attorney
General, Office of the Attorney General for the State of Kansas,
Lynn Fitch, Attorney General, Office of the Attorney General
for the State of Mississippi, Andrew Bailey, Attorney General,
Office of the Attorney General for the State of Missouri, Austin
Knudsen, Attorney General, Office of the Attorney General for
the State of Montana, Alan Wilson, Attorney General, Office of
the Attorney General for the State of South Carolina, and Sean
D. Reyes, Attorney General, Office of the Attorney General for
the State of Utah, were on the brief for amici curiae States of
West Virginia, et al. in support of appellant.
Joshua Dos Santos, Attorney, U.S. Department of Justice,
argued the cause for government appellees. On the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General at the time the brief was filed, Matthew M. Graves,
U.S. Attorney at the time the brief was filed, Mark B. Stern,
Attorney at the time the brief was filed, and Joseph F. Busa,
Attorney. Douglas C. Dreier, Attorney, entered an appearance.
John Longstreth argued the cause for intervenor-appellees.
With him on the brief were Mark H. Ruge and Tre A. Holloway.
Before: MILLETT, WILKINS and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: From 2015 to 2018, Captain
Matthew Hight trained with the Saint Lawrence Seaway Pilots
Association (“Pilots Association”) to become a maritime pilot
on Lake Ontario and the St. Lawrence River. The Great Lakes
Pilotage Act of 1960 (“Pilotage Act”) requires that certain
ships on the Great Lakes and St. Lawrence River, which
connects the lakes to the Atlantic Ocean, have a Coast Guard
or Canadian registered pilot on board to assist with navigation.
3
The Pilotage Act vests authority in the Coast Guard to register
American pilots, establish the conditions of their service, and
set the rates they must charge. The Coast Guard is also tasked
with supervising private pilotage associations that are
responsible, by statute, for the “rendering of pilotage services.”
46 U.S.C. § 9304(a). Pilotage associations are also charged, by
regulation, with training new pilots. 46 C.F.R. § 401.220(b)(2)
(2021). The Pilots Association is the only entity approved by
the Coast Guard to train and dispatch pilots on Lake Ontario
and the St. Lawrence River.
In 2018, Hight applied to the Coast Guard for registration
as a pilot. The Pilots Association recommended that the Coast
Guard deny Hight’s application. After conducting an
independent review of Hight’s training records, the Coast
Guard denied Hight’s application. It determined that Hight
failed to complete the Pilots Association’s prescribed training
program and therefore did not have the navigational experience
needed for registration. The Coast Guard also found that Hight
was ineligible both because he did not have the temperament
required of a maritime pilot and because he had received a
negative recommendation from the Pilots Association.
Hight challenged that decision in federal court on several
grounds. As relevant to this appeal, he argues that the Coast
Guard (i) acted arbitrarily and capriciously in denying him
registration as a pilot, in violation of the Administrative
Procedure Act, (ii) unconstitutionally delegated regulatory
authority to the Pilots Association, a private entity, and (iii)
violated the First Amendment by requiring Hight to train with
and join the Pilots Association. The district court rejected each
of these claims. We affirm.
4
I
A
“As a profession, pilotage owes its existence to the infinite
variety of navigation hazards—currents, tides, sand bars,
submerged objects, weather conditions, and the like—that
mark the harbors and rivers open to commercial vessels” in the
United States. Jackson v. Marine Expl. Co., 583 F.2d 1336,
1338–1339 (5th Cir. 1978). Because each waterway presents
unique hazards, “it has long been the practice of vessels” to hire
local pilots to guide ships across these waters and between
ports and the open sea. Id. at 1339.
Private pilotage associations are at the center of this
profession, and have been for centuries. As early as the
fourteenth century, pilot guilds and associations formed at
major English ports. GROSVENOR M. JONES, PILOTAGE IN THE
UNITED STATES 7 (1917). These associations were established
by royal charter, and their “principal objects” were “to provide
* * * a body of qualified and duly licensed pilots; to prevent
unqualified persons from undertaking to pilot vessels at all;
and, lastly, to provide for the regulation and good government
of the bodies of licensed pilots.” Id. at 7–8 (citation omitted).
This tradition carried over to the United States. “When the
government of the Union was brought into existence, it found
a system for the regulation of its pilots in full force in every
State.” Gibbons v. Ogden, 22 U.S. 1, 207 (1824). Though the
federal government maintained “concurrent” jurisdiction over
pilotage, the first Congress “adopt[ed]” the system of state-
regulation of pilots and “g[a]ve it the same validity as if [the
state] provisions had been specially made by Congress.” Id. In
1789, Congress enacted a statute providing that “all pilots in
the * * * rivers, harbours and ports of the United States, shall
5
continue to be regulated in conformity with the existing laws
of the States * * * until further legislative provision shall be
made by Congress.” Id. at 116–117 (quoting Act of Aug. 7,
1789, 1 Stat. 53, 54) (codified as amended at 46 U.S.C.
§ 8501(a)).
Today, States are still responsible for regulating most
pilots. But Congress has preempted state regulation in certain
areas, including the Great Lakes and St. Lawrence River.
“Construction of the Saint Lawrence Seaway was completed in
1959” and opened an accessible route for large commercial
ships from the Great Lakes to the Atlantic Ocean. Halverson
v. Slater, 129 F.3d 180, 182 (D.C. Cir. 1997). The seaway is
made up of a system of locks and channels that allows vessels
to navigate safely across the St. Lawrence River. Mike Piskur,
Management of the Great Lakes-St. Lawrence Maritime
Transportation System, 42 CAN.-U.S. L.J. 227, 228 (2018).
The year following the St. Lawrence Seaway’s
construction, Congress passed the Great Lakes Pilotage Act of
1960, 46 U.S.C. §§ 9301–9308. To address safety concerns
from already increased traffic and to coordinate regulation with
the Canadian government, the Pilotage Act requires that certain
commercial ships hire an American or Canadian pilot to assist
in navigation. American Great Lakes Ports Ass’n v. Schultz,
962 F.3d 510, 512–513 (D.C. Cir. 2020). “[T]o provide for
efficient dispatching of vessels and rendering of pilotage
services[,]” the Act also empowers the Coast Guard to
“authorize the formation of * * * pool[s] by * * * voluntary
association[s] of United States registered pilots”—that is,
private pilotage associations. 46 U.S.C. § 9304.
Pursuant to its statutory authority, the Coast Guard
certified three pilotage associations to be the exclusive
American providers of Great Lakes pilotage services in specific
6
regions—or “Districts”—of the Great Lakes and St. Lawrence
River. See 46 C.F.R. § 402.320 (2021). The St. Lawrence
Seaway Pilotage Association provides pilotage services in
District One, which encompasses all domestic waters of the St.
Lawrence River and Lake Ontario. Id. §§ 401.300(a)(1),
402.320(a)(1)–(2) (2021). Under the Pilotage Act, the
President is also authorized to “designate[]” certain parts of the
Great Lakes for special pilotage requirements based on “the
public interest, the effective use of navigable waters, marine
safety, and the foreign relations of the United States.” 46
U.S.C. § 9302(a)(2). In such designated waters, the pilot
“direct[s] the navigation of the vessel subject to the customary
authority of the master” of the vessel, while in non-designated
waters, the pilot need only “be on board and available.” Id.
§ 9302(a)(1)(A), (B).
The President designated the waters of the St. Lawrence
River for special pilotage requirements, but not Lake Ontario.
Proclamation No. 3385, 25 Fed. Reg. 13679, 13681 (Dec. 24,
1960); see also 81 Fed. Reg. 11908, 11910 (Mar. 7, 2016). The
River is particularly difficult to navigate. It takes
approximately 10.8 hours to traverse and “is marked by
numerous small islands and rocky outcrops, extremely narrow
channels with vessel control regulations, swift currents, ice
flows[,] and three sets of Seaway locks, where vessels have
become trapped in early winter ice.” J.A. 271. Because
navigation on the River is “so demanding[,]” pilots must switch
out halfway through the 10.8 hour journey. J.A. 271. By
contrast, pilots can navigate for over twenty hours without
relief in certain undesignated parts of the Great Lakes. J.A.
271.
The Pilotage Act also charges the Coast Guard with
“prescrib[ing] by regulation standards of competency to be met
by each applicant [pilot] for registration[.]” 46 U.S.C.
7
§ 9303(a). Under that authority, the Coast Guard issued
regulations governing both the training and registration of
pilots. Under the regulations in effect when Hight was seeking
registration, the Coast Guard mandated that pilot associations
submit their training “course[s] of instruction” for approval and
that those courses meet ten “minimum criteria[.]” 46 C.F.R.
§ 402.220(b) (2021). The Coast Guard also had to approve
each of the pilots designated to train applicants. See id.
§ 401.211(c) (2021).
For applicants to become registered pilots on the Great
Lakes and the St. Lawrence River, Coast Guard regulations
created two types of registration. First, the agency offered
“temporary certificate[s] of registration” to pilots who had met
a subset, but not all, of their training program’s requirements.
See 46 C.F.R § 401.220(e) (2021); J.A. 132–135.
Second, the Coast Guard offered five-year registrations to
applicants who had met minimum qualifications and had
completed three requirements specific to pilotage on the Great
Lakes and the St. Lawrence River. The qualifications included
that the applicant be “of good moral character and temperate
habits[,]” possess various licenses, and pass a physical and
vision examination. 46 C.F.R. § 401.210 (2021).
In addition, region-specific criteria required the applicant
to complete a “minimum number of trips * * * over the waters
for which application is made[,]” “a course of instruction * * *
prescribed by the association authorized to establish the
pilotage pool,” and “a written examination[.]” 46 C.F.R.
§ 401.220(b) (2021). Once a qualified applicant satisfied all of
those requirements, the pilot association would submit to the
Coast Guard a “recommendation[] together with its reasons for
the registration” of the applicant. Id. § 401.220(c) (2021). The
Coast Guard would then determine whether the applicant was
8
“qualified” for a five-year, renewable registration that allowed
the applicant to perform pilotage services in one of the three
districts of the Great Lakes. Id. §§ 401.220(d), 401.230(a),
401.240 (2021).
B
1
At the time relevant to this case, the St. Lawrence Seaway
Pilotage Association had a two-phase training plan. During the
first phase—the “Applicant Pilot Training Phase”—applicant
pilots made “all trips in the company of registered pilots.” J.A.
132. At the end of each trip, the registered pilot evaluated the
applicant’s performance and assigned a numerical grade for
specific components, such as “Great Lakes pilotage
knowledge” and “[a]bility to communicate[.]” J.A. 133. The
training plan also prescribed a minimum number of trips
applicants needed to complete out of specified ports in District
One. J.A. 133–134.
At the end of the first phase, the Pilots Association would
recommend applicant pilots to the Coast Guard to receive one-
year temporary registrations that allowed them to solo pilot
vessels on the undesignated waters of Lake Ontario, but not on
the designated waters of the St. Lawrence River. Pilots who
received that temporary registration were designated deputy
pilots.
During the second phase—the “Deputy Pilot Training
Phase”—deputy pilots used their temporary registration to
work alone on Lake Ontario. J.A. 135. Under the plan,
members of the Pilots Association’s training committee would
“spot-check” the deputy pilots’ performance on the Lake “at
least three times per season[.]” J.A. 135. The training plan
9
separately required the deputy pilots to “continue to make trips
in the designated water of the pilotage district”—that is, the St.
Lawrence River—“in the company of Registered Pilots.” J.A.
135.
Pilots who successfully completed the deputy pilot
training program could then seek full registration from the
Coast Guard. 46 C.F.R. § 401.220(b), (d) (2021). Once
granted registration, those pilots could become a member of the
Pilots Association by purchasing one share of stock in the
Pilots Association’s affiliated corporation. The price of each
share was set at “the value of the corporation’s assets divided
by the number of members in the Association.” J.A. 18. In
2018, when Hight says he should have been allowed to join,
the cost of a single share was close to $200,000. J.A. 18.
2
Hight began his apprenticeship with the Pilots Association
in 2015. Before that, he had served as a professional mariner
on other waterways for twenty years and spent eight years as a
ship master.
By all accounts, Hight performed well during the applicant
phase and, in 2016, the Pilots Association recommended to the
Coast Guard that Hight receive his temporary registration. The
Coast Guard found Hight to be qualified and issued him a one-
year temporary registration for the 2016 shipping season,
which it renewed in subsequent years.
At this point, the parties’ stories differ. According to
Hight, he completed the deputy pilot training of the Pilots
Association’s Training Plan in 2017 and, in early 2018, the
Pilots Association told him it would make him a registered pilot
that year. Hight says that, around this time, he approached John
10
Boyce, the president of the Pilots Association, with concerns
about the Pilots Association’s financial decisions and some of
Boyce’s practices as president. He questioned, in particular,
the Pilots Association’s purchase of expensive property and
Boyce’s close relationship with Todd Haviland, the Coast
Guard’s Director of Great Lakes Pilotage.
The Coast Guard, by contrast, focuses on two incidents
that occurred during Hight’s deputy pilot training. First, in the
summer of 2017, while Hight was piloting a vessel solo on
Lake Ontario, a tugboat that was assisting with the undocking
of his vessel struck a buoy and was damaged. Hight later
insisted that the “tugboat was damaged after it was untethered
from [his] vessel (implying tugboat driver error)[,]” and said
he did not learn of the damage “until days” after the incident.
J.A. 245–246. Hight, however, never reported the incident to
the Pilots Association or to the Coast Guard. J.A. 100, 153.
When the accident came to light several months later, Hight
acknowledged that he should have reported it. J.A. 100.
Second, in December 2017, while piloting the Federal
Hudson, a Canadian-managed merchant ship, Hight had a
heated argument with its ship master. J.A. 85–86. As the
master was speaking over the radio, Hight shouted at him to be
quiet. After mooring the vessel, Hight confronted the master
on the bridge of the ship, accused him of a “lack of situational
awareness[,]” and used “expletives[.]” J.A. 101.
Apart from these incidents, the Coast Guard claims that,
once Hight obtained his temporary registration, he “focused on
maximizing time on Lake Ontario” and completed
approximately 100 solo trips during each of the 2016 and 2017
seasons. J.A. 270. These trips allowed him to “earn ‘a full
pilot’s salary’” while, according to the Coast Guard,
“neglect[ing] his responsibility to continue his supervised
11
training on the Saint Lawrence River[.]” J.A. 270 (citation
omitted).
Based on these incidents, the Pilots Association
recommended to Director Haviland in March 2018 that Hight
not “continue as a Temporarily Registered Pilot and Applicant
Pilot in Training on all District 1 waters for the 2018 season.”
J.A. 153–154. Later that same day, the Director “concur[red]
with [the Pilots Association’s] recommendation.” J.A. 155.
Soon after, the Pilots Association removed Hight from its “tour
de role”—the list of pilots available for dispatches. That action
prevented Hight from piloting any ships in District One (that
is, on Lake Ontario or the St. Lawrence River). J.A. 250.
The next month, the Coast Guard adjusted its decision and
issued Hight a temporary registration for the 2018 navigation
season. At the same time, Director Haviland informed Hight
that he was “still an Apprentice Pilot” for the Pilots
Association. J.A. 182.
Hight then requested that the Coast Guard administer the
written exam required for full registration as a pilot and that, if
he passed, he be granted a “full five year registration
certificate[.]” J.A. 158. The Coast Guard refused on the
grounds that Hight had not received a positive recommendation
from the Pilots Association or completed the minimum number
of trips on the designated waters of the St. Lawrence River
within the time period required by regulation. See 46 C.F.R.
§§ 401.220(b)(1), 402.220(a)(1) (2018).
Hight responded by filing suit in the United States District
Court for the District of Columbia. The court ruled that the
Coast Guard had misread the timeframe in which Hight had to
accomplish his minimum trips. Hight v. United States Dep’t of
Homeland Sec. (“Hight I”), 533 F. Supp. 3d 21, 27–30 (D.D.C.
12
2021). The court then ordered the Coast Guard to administer
the written exam to Hight. Id. at 30–31. In so ruling, the
district court did not decide whether Hight, if he passed the
exam, would otherwise be eligible for full registration, and the
court was explicit that it did not “take a position on whether a
positive recommendation from the relevant association is
required before an Applicant Pilot can be fully registered by
the Coast Guard.” Id. at 30.
Hight passed the written exam. J.A. 82. In July 2021, he
requested that the Coast Guard provide him his “full five-year
registration” and ensure that he be “immediately placed on the
tour de role for work in District 1[.]” J.A. 83. The Pilots
Association again recommended to the Coast Guard that Hight
be denied registration.
C
In December 2021, Director Haviland denied Hight’s
request for full registration. The Director cited four grounds
for the denial:
• Hight “did not complete” the Pilots Association
training requirements and had not “clearly
demonstrated proficiency in piloting foreign
vessels through the[] challenging waters” of the St.
Lawrence River;
• Hight “demonstrated unprofessional conduct and a
troubling lack of candor[,]” including in his
interaction with the Federal Hudson master and in
his failure to report the tugboat incident;
• While providing expert-witness deposition
testimony in an unrelated lawsuit, Hight
13
misrepresented his title and experience as a Great
Lakes pilot and as a mariner; and
• The Pilots Association did not recommend Hight
for registration.
J.A. 85–87. With respect to the last point, the Director added
that “I would deny your request even with a positive
endorsement” from the Pilots Association. J.A. 87.
Hight administratively appealed that decision, and
Michael Emerson, the Coast Guard Director of Marine
Transportation Systems, issued a final decision on behalf of the
Coast Guard affirming Haviland’s denial. The Systems
Director relied on three of the grounds identified by Director
Haviland.
First, in a section titled “Completion of the Association
Training Plan[,]” the Systems Director found that Hight had
not demonstrated “proficiency and expertise” in piloting
vessels in District One. J.A. 269–272. He noted in particular
that Hight had “neglected his responsibility to continue his
supervised training on the Saint Lawrence River[.]” J.A. 270.
Second, as “an additional basis” for his decision, the
Systems Director found that Hight did “not possess the calm
demeanor and professional temperament necessary to safely
pilot foreign vessels” in District One. J.A. 274. Emerson cited
the “several incidents” identified in Director Haviland’s letter,
emphasizing “the heated argument on the bridge[.]” J.A. 274.
He also pointed to “the increasingly antagonistic and
aggressive tone of [Hight’s] numerous emails” to the System
Director’s staff. J.A. 274.
14
Third, Emerson found that Hight lacked a
recommendation from the Pilots Association and that such a
recommendation “is standard industry practice.” J.A. 272. He
concluded that the district court’s decision in Hight I had not
“foreclosed any further input” from the Pilots Association on
Hight’s fitness to hold a full registration. J.A. 273.
Hight filed suit challenging the Coast Guard’s final
decision. He alleged that the Coast Guard’s decision was
arbitrary and capricious under the Administrative Procedure
Act (“APA”), 5 U.S.C. § 706(2)(A), violated both the private
non-delegation doctrine and the First Amendment to the
Constitution, and was collaterally estopped by Hight I. The
Pilots Association intervened as a defendant, and the parties
cross-moved for summary judgment.
The district court granted summary judgment in full to the
Coast Guard. Hight v. United States Dep’t of Homeland Sec.,
694 F. Supp. 3d 127 (D.D.C. 2023). First, the court held that
Hight I did not preclude the Coast Guard from resting its
registration denial on Hight’s incomplete training. Id. at 136–
138. Second, the court held that Hight’s First Amendment
claim and one of his APA claims were not ripe because both
challenged the requirement that Hight join the Pilots
Association to pilot in District One even though he was not yet
eligible to join the Pilots Association. Id. at 136. Third, the
court found the agency’s decision to deny Hight registration
was not arbitrary and capricious for several reasons. Id. at 138–
144. To start, the court pointed out that the agency rationally
concluded that Hight failed to complete his Pilots Association-
mandated training. The court noted, in particular, that the
training plan required deputy pilots to make “supervised trips”
(plural) on the St. Lawrence River, and Hight had completed
just one supervised trip. Id. at 139. The Coast Guard also had
“substantial evidence[,]” including the tugboat and Federal
15
Hudson incidents, to find that Hight was of unsuitable
temperament. Id. at 142–143. Lastly, the court rejected
Hight’s argument that the Coast Guard had unconstitutionally
substituted the Pilots Association’s negative recommendation
for its own judgment. Id. at 141. “The record shows,” the
district court held, that “the Coast Guard did exercise its own
judgment in denying registration for Captain Hight[.]” Id.
Hight appeals the district court’s judgment on three
grounds. First, he claims the Coast Guard’s final decision was
arbitrary and capricious. Second, he argues the Coast Guard
unconstitutionally delegated authority over both training and
registration decisions to a private body, the Pilots Association.
Third, he claims the requirements that he train with and join the
Pilots Association violate the First Amendment. Several States
filed an amicus brief in support of Hight that focused on his
private non-delegation claim.
II
The district court had subject matter jurisdiction under 28
U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court’s grant of summary
judgment to the Coast Guard on Hight’s arbitrary-and-
capricious and constitutional claims. Silver State Land, LLC v.
Schneider, 843 F.3d 982, 989 (D.C. Cir. 2016); National
Oilseed Processors Ass’n v. Occupational Safety & Health
Admin., 769 F.3d 1173, 1179 (D.C. Cir. 2014).
The APA requires that we “hold unlawful and set aside
agency action” that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). Agency action is arbitrary and capricious “if the
agency has relied on factors which Congress has not intended
16
it to consider, entirely failed to consider an important aspect of
the problem, [or] offered an explanation for its decision that
runs counter to the evidence before the agency[.]” Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983). In evaluating whether the agency has met this
standard, the court must “not * * * substitute its [own]
judgment for that of the agency.” Id.
III
Two of Hight’s challenges are without merit, and we lack
jurisdiction to reach the third. The Coast Guard’s final decision
complied with the requirements of the APA because it was
well-reasoned and supported by the record. The Coast Guard’s
determination also fits comfortably within delegation
principles because the Coast Guard relied on the Pilots
Association only for advice and for assistance gathering facts.
Hight’s First Amendment challenge, to the extent he preserved
it, is not ripe.
A
Hight’s claim that the Coast Guard’s final decision
denying him registration was arbitrary and capricious fails
because the Coast Guard reasonably concluded that Hight did
not complete the deputy pilot training requirements and
therefore did not qualify for registration under established
Coast Guard regulations.
1
In his final decision, Emerson explained that Hight failed
to complete the “required training program” for pilot
registration—specifically, Hight had not completed the
required supervised trips on the St. Lawrence River. J.A. 269–
17
270. That decision was both “reasonable and reasonably
explained.” Cytori Therapeutics, Inc. v. Food & Drug Admin.,
715 F.3d 922, 926 (D.C. Cir. 2013).
Pilot applicants must complete a pilotage association
training plan to be eligible for registration. Coast Guard
regulations provide that “[r]egistration of pilots shall be made
from among those Applicant Pilots who have[,]” among other
requirements, “completed a course of instruction for Applicant
Pilots prescribed by the association authorized to establish the
pilotage pool[.]” 46 C.F.R. § 401.220(b), (b)(2) (2021).
The Pilots Association’s training plan relevant for the
Great Lakes and St. Lawrence River required deputy pilots, in
addition to piloting trips on Lake Ontario, “[to] continue to
make trips in the designated waters of the pilotage district”—
that is, the St. Lawrence River—“in the company of Registered
Pilots.” J.A. 135. The training plan did not specify the exact
number of trips a deputy pilot needed to undertake, but the plan
was explicit that at least two “trips” (plural) were required. J.A.
135.
Hight does not dispute that he completed only one
qualifying trip on the St. Lawrence River after becoming a
deputy pilot. For a trip to satisfy the training requirement, a
registered pilot had to accompany the deputy pilot and score
the deputy’s performance at one or more points. J.A. 134–137.
In May 2016, as a deputy pilot, Hight completed a single
evaluated trip on the St. Lawrence River. J.A. 55, 153, 205,
207.
Given that undisputed record of insufficient experience on
the designated waters of the St. Lawrence River, Emerson
rationally found and reasonably explained that Hight failed to
complete the “supervised training on the Saint Lawrence River,
18
which was necessary to complete the training plan.” J.A. 270.
That alone was a sufficient reason to deny Hight’s registration
as a full pilot.
2
Hight offers three responses, but none shows the Coast
Guard’s decision was arbitrary and capricious.
First, Hight claims the Pilots Association could not have
mandated St. Lawrence River trips for completion of the
training program because, at the time, “applicant and deputy
pilots were not allowed to practice” on the river. Hight
Opening Br. 33. That argument is incorrect.
To start, Hight never fairly presented that argument to the
Coast Guard for it to consider. Hight raised this argument in a
declaration he submitted in the district court in Hight I. J.A.
254. After the district court remanded the case to the Coast
Guard, however, Hight did nothing more than attach that
declaration to his letter appealing Haviland’s registration
denial. See J.A. 107. At the same time, in the body of that
letter, Hight took the opposite position. He insisted that he had
completed the “training prescribed” by the Pilots Association,
including “round trips on the designated waters of District
One[.]” J.A. 107.
Such contradictory positions will not suffice. When a
party seems “to abandon its argument * * * by taking
inconsistent positions, the agency d[oes] not have a fair
opportunity to address th[at] argument.” Busse Broad. Corp.
v. Federal Communications Comm’n, 87 F.3d 1456, 1461
(D.C. Cir. 1996).
19
In addition, the evidence before the agency contradicted
Hight’s contention. Hight, himself, submitted training
documentation that reflected he completed multiple river trips
during the applicant pilot phase. J.A. 208–209. Yet the Pilots
Association provided evidence that Hight piloted on the river
only once during the deputy pilot phase, a fact that Hight does
not dispute J.A. 205, 207. The training plan specifically
required “trips” to occur during the deputy pilot phase, and that
omission is what informed the Coast Guard’s pilot-registration
decision.
Second, Hight argues that Emerson failed to explain why
Hight was required to make multiple river trips when, in his
view, other deputy pilots were not.
To be sure, “‘dissimilar treatment of evidently identical
cases’ is ‘the quintessence of arbitrariness and caprice.’”
Grayscale Invs., LLC v. SEC, 82 F.4th 1239, 1245 (D.C. Cir.
2023) (quoting Colorado Interstate Gas Co. v. FERC, 850 F.2d
769, 774 (D.C. Cir. 1988)). But Hight has failed to make any
colorable showing of disparate treatment.
Hight claims he identified to the Coast Guard eleven
deputy pilots who did not complete river training prior to
obtaining pilot registration. Hight Reply Br. 3–4. But the
record tells a different story. Hight never identified for the
Coast Guard a single individual who had received pilot
registration after completing just one evaluated trip on the
designated waters of the St. Lawrence River. Instead, in an
email exchange with Rajiv Khandpur, Chief of the Coast Guard
Office of Waterways and Ocean Policy, Hight vaguely stated:
“I suggest you exam[ine] pilot training records from pilot 164
to pilot 173 in order to gain some validity to the history of
training by the [Association].” J.A. 208. Hight was pilot 170,
J.A. 103, but Hight made no factual representation about the
20
training pilots 164 to 173 received. Such unsubstantiated and
unexamined assertions are insufficient to make out a plausible
claim of differential treatment by an agency.
In a portion of his Hight I declaration, Hight referred to the
training of a different pilot, Christopher Weigler. J.A. 255–
258; see also J.A. 107. But that declaration addressed only
Weigler’s applicant pilot training. Specifically, Hight averred
that he “had approximately the same number of river trips as
Weigler[,]” that the two “completed these river trips in the
same time and manner[,]” and that Weigler “completed these
trips in his first 6 months of training when he was an ‘applicant
trainee.’” J.A. 256 (emphasis added).
That information was beside the point because it said
nothing about whether Weigler or any other deputy pilot was
registered as a full pilot after taking only one supervised St.
Lawrence River trip during the deputy training phase. In fact,
Hight suggested the opposite in his declaration when he said
that, after Weigler passed the written exam, the Pilots
Association still made him complete additional river trips
before registering him as a pilot. J.A. 257. That demonstrates
consistency with the requirement imposed on Hight in this
case. See Northstar Wireless, LLC v. Federal Communications
Comm’n, 38 F.4th 190, 205 (D.C. Cir. 2022) (rejecting
petitioners’ claim of dissimilar treatment when “[t]he record
[did] not bear [it] out”); see also Intellistop Inc. v. United States
Dep’t of Transportation, 72 F.4th 344, 351 (D.C. Cir. 2023)
(“[A]n agency does not act arbitrarily if it treats dissimilar
parties differently[.]”).
Finally, Hight claims the Coast Guard’s explanations for
denying his pilot registration were “pretextual[.]” Hight
Opening Br. 27, 38, 47. Specifically, Hight insists that Boyce
refused to recommend him for registration in retaliation for
21
Hight’s questions about the Pilots Association’s finances and
Boyce’s practices, including his close relationship with
Haviland. Id. at 11–12.
When assessing agency action for pretext, a court is
“ordinarily limited to evaluating the agency’s
contemporaneous explanation in light of the existing
administrative record.” Department of Commerce v. New York,
588 U.S. 752, 780 (2019) (citing Vermont Yankee Nuclear
Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519,
549 (1978)). Hight’s speculative accusations find no factual
support in the record and, without more, are insufficient to
upset the presumption that public officials “have properly
discharged their official duties.” United States v. Chemical
Found., 272 U.S. 1, 14–15 (1926).
In sum, the Coast Guard rationally concluded that Hight
failed to complete the Pilots Association’s mandated river-trip
training and, in reaching that conclusion, engaged in reasoned
decision-making. 1
B
Hight’s private non-delegation challenge fares no better.
Generally, a delegation of authority to a private entity is
constitutional so long as the private entity acts only “as an aid”
1
Because Hight’s failure to complete the training program was
an independent and sufficient basis for the Coast Guard’s decision,
we need not address the Coast Guard’s alternative grounds for
denying Hight registration. See BDPCS, Inc. v. Federal
Communications Comm’n, 351 F.3d 1177, 1183 (D.C. Cir. 2003)
(“When an agency offers multiple grounds for a decision, we will
affirm the agency so long as any one of the grounds is valid, unless
it is demonstrated that the agency would not have acted on that basis
if the alternative grounds were unavailable.”).
22
to an accountable government agency that retains the ultimate
authority to “approve[], disapprove[], or modif[y]” the private
entity’s actions and decisions on delegated matters. Sunshine
Anthracite Coal Co. v. Adkins, 310 U.S. 381, 388 (1940). But
where Congress does not expressly authorize an agency to
delegate authority, “subdelegations to outside parties are
assumed to be improper[.]” United States Telecom Ass’n v.
Federal Communications Comm’n., 359 F.3d 554, 565 (D.C.
Cir. 2004); see also Louisiana Pub. Serv. Comm’n v. FERC,
860 F.3d 691, 696 (D.C. Cir. 2017) (“Federal agencies may not
subdelegate their ‘decision-making authority * * * to outside
entities—private or sovereign—absent affirmative evidence of
authority to do so.’”) (quoting United States Telecom Ass’n,
359 F.3d at 566). The only exceptions to that presumption are
delegations that involve “‘(1) establishing a reasonable
condition for granting federal approval; (2) fact gathering; and
(3) advice giving.’” International Dark-Sky Ass’n, Inc. v.
Federal Communications Comm’n, 106 F.4th 1206, 1216
(D.C. Cir. 2024) (quoting United States Telecom Ass’n, 359
F.3d at 566). As a result, an agency “may turn to an outside
entity for advice and policy recommendations, provided the
agency makes the final decisions itself.” United States
Telecom Ass’n, 359 F.3d at 568. That is what the Coast Guard
did here.
1
The Pilots Association advised the Coast Guard of its view
on Hight’s registration request and helped gather facts relevant
to that request from its training program and records. J.A. 67–
72, 197–198, 205–207. That is where the Pilots Association’s
input stopped. Consistent with the procedures established by
its governing regulations, the Coast Guard independently
reviewed the relevant evidence, including not just information
from the Association, but also from Hight, and then exercised
23
final and independent decision-making authority in declining
to register Hight.
The Coast Guard independently evaluated whether Hight
“completed [the] course of instruction” prescribed by the Pilots
Association. 46 C.F.R. § 401.220(b)(2) (2021). In an April
2018 email, Haviland explained to Hight that he was in the
“process of auditing the specific items” of the Pilots
Association training plan that the Association said Hight had
not yet satisfied. J.A. 182. Haviland then openly invited Hight
to share records with the Coast Guard demonstrating that he
had completed the training. “If I am in error, and you can
demonstrate, with records, that you have completed all of your
training,” Haviland wrote, “I will reconsider my position with
regard to issuing the exam.” J.A. 183. 2
Hight responded the next month by sending the Coast
Guard 48 pages of trip records. J.A. 193. The Coast Guard
sent those documents to the Pilots Association to “validate[.]”
J.A. 194–195. But the Coast Guard also separately conducted
its own review of the records. See J.A. 208–212.
Subsequently, the Pilots Association—not Hight—provided
the Coast Guard documentation of Hight’s only eligible river
trip from the deputy pilot phase. See J.A. 205–207, 209. All
the trips identified by Hight in his documents proved irrelevant
because they occurred during the applicant phase, prior to him
becoming a deputy pilot. J.A. 208–209.
The Coast Guard also independently determined that Hight
lacked the necessary “pilot temperament” based on the two
2
At the time of this exchange, the Coast Guard was focused on
whether Hight was eligible to sit for the pilotage exam, but the same
evidence underlay the Coast Guard’s subsequent registration
decision. J.A. 182–183, 270.
24
boating incidents and his “antagonistic and aggressive” emails
to Coast Guard staff. J.A. 274; see also 46 C.F.R.
§ 401.210(a)(3) (2021) (requiring pilots to be of “good moral
character and temperate habits”). As for the two incidents, the
agency investigated the tugboat accident on its own and relied
on the Pilots Association only to gather facts about the
confrontation on the Federal Hudson. Haviland first learned of
the tugboat accident when a representative of the Canadian
tugboat company told him about the boat’s damage. J.A. 182.
Haviland then directed a Coast Guard official to investigate the
incident. J.A. 182. For the Federal Hudson incident, the Pilots
Association sent Haviland the written account prepared by the
Federal Hudson master for Haviland to evaluate on his own.
J.A. 172–173.
Finally, in reaching its decision, the Coast Guard received
a “recommendation[]” from the Pilots Association about
whether to register Hight. See 46 C.F.R. § 401.220(c) (2021).
Yet the Coast Guard was explicit that the recommendation was
mere “input.” J.A. 273. In his initial decision, Haviland
explained that his practice was to “rely” on association
recommendation letters to confirm that applicants had
completed their training and had “the requisite knowledge,
skill, professionalism, integrity, and judgment to serve” as
registered pilots. J.A. 87. But he emphasized that he “would
deny [Hight’s] request even with a positive endorsement” from
the Pilots Association because of Hight’s “lack of integrity and
judgment[.]” J.A. 87.
Emerson’s final decision for the Coast Guard echoed this
view. He noted that receiving a recommendation from a pilot
association is a “standard industry practice” that “informs a
licensing body[,]” and that Hight I had not “foreclosed any
further input from the [Pilots Association] on Captain Hight’s
fitness to hold a full registration[.]” J.A. 272–273. But at no
25
point did Emerson suggest that a positive recommendation
from the Pilots Association was a mandatory precondition for
pilot registration.
In short, the Coast Guard limited the Pilots Association’s
involvement to “fact gathering” and “advice giving”—two
“legitimate” “types” of “outside party input into agency
decision-making processes[.]” United States Telecom Ass’n.,
359 F.3d at 566. Beyond that, the record shows that the Coast
Guard itself reviewed the record, requested additional
information from Hight for its consideration, and then reached
an independent judgment that Hight failed to satisfy the
required training program for registration based on a fact about
St. Lawrence River experience that Hight does not dispute.
2
Hight and his State amici offer several arguments in
response, but none succeeds.
First, Hight claims the Pilots Association “furnished”
every ground the Coast Guard relied on to deny Hight’s
registration. Hight Opening Br. 51. That is not true. As
described, Haviland learned of the tugboat accident not from
the Pilots Association, but from the company whose tugboat
was damaged. J.A. 182. The Coast Guard also faulted Hight
for the tone of his correspondence with the agency, not with the
Pilots Association. J.A. 274.
Second, Hight argues that, “[p]rior to this litigation, the
Coast Guard was quite open about the fact that it believed that
the [Pilots] Association had the final say on who gets to be a
pilot.” Hight Reply Br. 23. This claim too is belied by the
record. Much of Hight’s evidence goes to the Pilots
Association’s control over employment, not registration. See,
26
e.g., J.A. 183, 187 (Coast Guard officials told Hight,
“[r]egarding being included in the tour-de-role, that is between
you and your pilot association[,]” and “[t]he issues with your
employment status [are] between you and the [Association].”).
To be sure, on one occasion, a lower-level Coast Guard
official suggested that a recommendation from the Pilots
Association was necessary for Hight to obtain full pilot
registration. J.A. 188. But in his final decision denying
Hight’s request to take the exam, Emerson explained that
completing training—not receiving a positive
recommendation—was the relevant prerequisite. See J.A. 126
(“Because [the written] examination requires travel by the
applicant pilot, by Coast Guard personnel, or both, it simply
does not make sense to provide an examination to an applicant
pilot who may not ultimately complete the association’s
specified training, which is [a] long-established prerequisite to
full registration.”).
Third, Hight pivots and argues that the Coast Guard
impermissibly delegated regulatory authority to the Pilots
Association by essentially surrendering control over pilot
training to it. See Hight Opening Br. 52–53. While Hight
presented a version of this argument in his administrative
appeal, see J.A. 120, he abandoned it before the district court.
There, Hight argued only that the Coast Guard impermissibly
delegated registration authority to the Pilots Association and
improperly deferred to the Pilots Association’s interpretation
of the minimum trips requirement. But he did not separately
argue that the Association exercised impermissible control
over training. See Hight Mot. Summ. J. [ECF No. 28] 30–36;
Hight Opposition to Defs.’ Cross-Motion [ECF No. 36] at 14–
21 (same). “[A]bsent exceptional circumstances, a party
forfeits an argument by failing to press it in district court.”
Apprio, Inc. v. Zaccari, 104 F.4th 897, 910 (D.C. Cir. 2024)
27
(citation omitted). And Hight has not offered any relevant
justification for his omission here.
Finally, the State amici argue that the Coast Guard’s
delegation was unconstitutional because it failed to establish
“discernible standards” for pilot associations’ “exercise of their
authority” and because “[n]either the statutes nor the
regulations say what an association should base [its]
recommendation on[.]” Amici Br. 19–20. That is not an
argument that Hight has ever raised, and “we ordinarily do not
entertain arguments not raised by parties[.]” CSX Transp., Inc.
v. Surface Transp. Board, 754 F.3d 1056, 1064 (D.C. Cir.
2014) (citation omitted). We are especially mindful of that
guidance here because of the “longstanding principle of
judicial restraint” that requires “courts [to] avoid reaching
constitutional questions in advance of the necessity of deciding
them.” Camreta v. Greene, 563 U.S. 692, 705 (2011) (citation
omitted).
In sum, the record in this case shows that the Pilots
Association’s limited role in registration decisions comports
with established limitations on agency delegations of authority.
C
Finally, Hight argues that two related aspects of the Great
Lakes pilotage system violate the First Amendment. First, he
challenges the requirement that he train with the Pilots
Association to become a registered pilot. Second, he argues it
is unconstitutional to condition his ability to work as a
registered pilot on joining the Pilots Association and
purchasing a share of its corporate stock.
Hight’s contention that requiring him to work with the
Pilots Association to obtain the training necessary to qualify as
28
a pilot violates his right to free association is forfeited because
he did not raise it before the district court. See Apprio, 104
F.4th at 910.
As for Hight’s concern about having to join the Pilots
Association after being registered as a pilot, that claim is not
ripe. Ripeness is a legal doctrine that prevents courts, “through
avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative
policies[.]” Chlorine Inst., Inc. v. Federal R.R. Admin., 718
F.3d 922, 927 (D.C. Cir. 2013) (quoting National Park
Hospitality Ass’n v. Department of Interior, 538 U.S. 803, 807–
808 (2003)). “Ripeness, while often spoken of as a
justiciability doctrine distinct from standing, in fact shares the
constitutional requirement of standing that an injury in fact be
certainly impending.” National Treasury Emps. Union v.
United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996).
At this point, Hight’s claimed injuries—having to join the
Pilots Association and purchase its stock—are not “certainly
impending” for several reasons. To start, Hight is still only a
deputy pilot and, as such, is ineligible to join the Pilots
Association. So he is under no membership obligation at this
time.
In addition, it is uncertain when, if ever, the Coast Guard
will grant Hight full pilot registration. Even if Hight completes
the required training, registration is not guaranteed. The Coast
Guard once before determined that Hight lacked the
temperament necessary to be a maritime pilot. J.A. 274. Other
barriers to registration could also arise, even assuming that
Hight finishes his thus-far incomplete training regimen.
Equally unclear is whether the Pilots Association would
permit Hight to join should he receive pilot registration since
29
the Pilots Association has twice recommended he not be
allowed to serve as a pilot. See J.A. 67–71, 153–154. Given
these uncertainties, it is far from imminent—or even
foreseeable at the present time—that Hight will be in a position
of having to decide whether to join the Pilots Association or
purchase its stock in order to pilot on the Great Lakes and St.
Lawrence River.
Our “review is inappropriate” when, as here, “deferring
consideration might eliminate the need for review altogether.”
Chamber of Commerce of U.S. v. Reich, 57 F.3d 1099, 1100
(D.C. Cir. 1995).
IV
For the foregoing reasons, we affirm the district court’s
judgment.
So ordered.