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Case number 23-5273, Matthew J. Height, appellant versus United States Department of Homeland Security at all.

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Mr. Redfern for the appellant, Mr. Dos Santos for the appellees, and Mr. Longstreth for the intervener.

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Good morning, counsel.

[00:00:21] Speaker 05:
Good morning, your honor.

[00:00:21] Speaker 05:
May it please the court.

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I'm Jeffrey Redfern here on behalf of the appellant, Captain Matthew Height.

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Under this court's APA precedence, the Coast Guard is required

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to explain the inconsistent treatment of regulated parties.

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It's required to rationally respond to parties' arguments.

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And it cannot simply rubber stamp the assertions of third parties.

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The decision in this case falls well short of those standards.

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It's not a particularly close call.

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And I'd like to start by addressing the training.

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Captain Height has maintained from 2018 until the present that he did all of the training that he was asked to do.

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And it's the same training that all of his contemporaries did.

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They all got their registrations, yet he didn't.

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And now he's being subjected to a new unwritten requirement that was invented out of thin air for the specific purpose of denying him his registration.

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Under this court's decision in Baltimore Gas, once a party raises credible allegations of inconsistent treatment, the burden is on the agency to explain that treatment.

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The Coast Guard didn't do that.

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It said, I'm not going to discuss the status of another mariner.

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And even the final decision in this case doesn't even acknowledge these allegations.

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It just says, you haven't completed your training.

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because the association says so.

[00:01:33] Speaker 01:
No, it doesn't say that, sir.

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If you look at J271, the decision on appeal, the director said, while Captain Height has adequate lake experience, he has comparatively little river experience and has never solo navigated a vessel between Snellloch to the east and Cape Vincent.

[00:02:01] Speaker 01:
where D1's waters become undesignated, right?

[00:02:05] Speaker 05:
That's correct, but that is simply repeating what the association has told the Coast Guard.

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The question is whether there's substantial evidence to support that finding, right?

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Isn't that our standard of review?

[00:02:20] Speaker 05:
Respectfully, no, Your Honor.

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That's a secondary question.

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The first question is whether the decision here has adequately explained inconsistent treatment.

[00:02:31] Speaker 01:
Well, you say it's inconsistent treatment.

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What evidence is there in the record that other people were treated inconsistently other than Ipsy Dixie?

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So two, Your Honor.

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First, the Association's own articles make quite clear that this river training is not a prerequisite for full registration.

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That has not been explained by the Coast Guard or by the Association.

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Second, under Baltimore gas,

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My client doesn't need evidence.

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He just needs credible allegations, and then the agency has to respond.

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And what my client has been saying since the beginning is, look.

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So, wait, you say.

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So, what about JA 135, deputy pilot training phase?

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This is the association's training program.

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Point two, during the deputy pilot training phase, the applicant pilot will

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work alone, usually alone in undesignated waters, but will continue to make trips in the designated waters of the pilotage district in the company of registered pilots.

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This is their training plan, and it says the deputy pilot training phrase includes continuing to make trips, plural, in the designated waters.

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of the pilotage district.

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You said it's not written anywhere.

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Why is that not it?

[00:03:51] Speaker 05:
Well, this, the specific number of trips are not written.

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I'm not that number of trips.

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Yes.

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You said it wasn't written anywhere.

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Right here it says you're supposed to make trips plural in the designated waters.

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And there is a finding

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that he has never solo navigated a vessel between, just for short hand, in the designated waters.

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So your answer was it's not in their plan, it's right here in their training plan, and the fighting is right there.

[00:04:23] Speaker 05:
Your honor, my client has maintained from the very beginning that he did exactly what he was told to do, just like every other pilot did.

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You can do what's written down right here.

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Yes, he has a copy and he did do additional trips when he was told to do them just like he said every other pilot did.

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What he asked the Coast Guard to do was just look at the records of his contemporaries.

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He said he didn't have any evidence.

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He said just look at pilots and he gave like a bunch of numbers that included himself.

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That's not evidence.

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Go look at these records.

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He doesn't, Your Honor, he doesn't have access to those.

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Okay, then how does he know anybody had the same record as him?

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Your Honor, because they're his contemporaries, and he knows.

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They told him.

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No.

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Did he have affidavits from them?

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No, he didn't, your honor.

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He did not.

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He didn't have evidence of any differential evidence.

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Your honor, the standard under both.

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Time out.

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Somebody just saying, I think my friends are treated differently from me is not going to undercut substantial evidence when you have written words of requirement and a factual finding that is not disputed of a requirement.

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Just saying, oh, someone told me that they didn't have the same thing.

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Should have gotten an affidavit from them.

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Well, he has his own affidavit, Your Honor.

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Yes, but that doesn't tell us anything about to make a differential treatment claim.

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That tells us about his, and that's relevant for that.

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That does not evidence a differential treatment claim.

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Your Honor, determining whether he's correct is very easy, because the Coast Guard is supposed to have these records.

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Very easy if he comes forward with declarations from these buddies of his who he says all told him that they were treated the same as him and had the same requirements as him.

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What prevented him from doing that?

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Your Honor, the problem is that the Coast Guard never gave any response to this.

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Because there wasn't any evidence.

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Your Honor, the Coast Guard never told my client that

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come back with evidence and then .

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.

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.

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That's not how administrative proceedings work.

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There's no trial judge that says come back with evidence.

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He sought a hearing and he had a burden to make a demonstration if he wanted to assert deferential treatment.

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That's a burden on him.

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That burden is not substantiated by going, well, I think I heard that from my friends that they were treated differently.

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Your Honor.

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When he could have gotten the information, nothing stopped him from getting the information.

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What the Coast Guard told him when he said everyone else has been treated differently is I'm not going to discuss the status of another mariner.

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Coast Guard never said, we don't think you're right.

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Well, for privacy reasons, they're not going to start hauling out records on other people and putting them on the public record when there hasn't been any evidence of differential treatment.

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Your Honor, that's what the APA requires.

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At the very least, the Coast Guard requires agencies to rebut arguments that are not substantiated.

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Your Honor, these are very detailed allegations.

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My point is that the differential treatment one was not detailed in the least.

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It was an assertion.

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that was completely unsubstantiated.

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Your Honor, there's a declaration that details this, JA 253 through 59.

[00:07:31] Speaker 02:
Whose declaration?

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That's Captain Hyde's declaration.

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The Coast Guard has this, and he explained the way river training worked.

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is that once pilots were advanced to the deputy phase, they were dispatched.

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They don't have control over where they go.

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They go where they're told to go.

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And he went on the lake the majority of this time.

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And the way training has always worked is that after pilots get their full registration, then they do these additional river trips.

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That's what he said.

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Yes.

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And then the training association said, no, here is our training plan.

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Right.

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And this is what we do.

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And then he come back and said, no, it's not.

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But I have no evidence.

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I mean, he is not.

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in charge of the plan.

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He's one person.

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He's a student going through it.

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And he doesn't get to declare what the plan is without evidence other than his own say so, his own thoughts about this.

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If he had evidence from other pilots or pilot trainees, he should have come forward with that.

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It was correct?

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No, Your Honor.

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No one has ever.

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The standard is credible allegations.

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The standard is not that you have to prove inconsistent treatment.

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And I also think that this court's decision in NTE Connecticut is relevant here because this court has held repeatedly that when you have two competing factual assertions, the agency cannot simply say, well, we're siding with this one without providing an explanation.

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When you have factual assertions, that is evidence.

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If you have a case where we have said when someone just asserts something without any evidence,

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The agency decision is overturned when the agency points to its own evidence, the evidence before it that says the otherwise.

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What would that case be?

[00:09:14] Speaker 05:
Your Honor, I think that's NTE gas.

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No substantiated evidence.

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No affidavit, no declaration, no piece of paper.

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What I think is inexcusable in this case, Your Honor, I think this is actually significantly worse than NTE gas.

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There you had two private parties.

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who are making competing assertions about what's likely to happen in the future.

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That's an inherently uncertain enterprise.

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Here we have competing assertions about a state of facts in the world that it is incredibly easy for the Coast Guard to figure out the truth.

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All they have to do is look at records.

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Yes, they said we looked at the training plan and it's quite explicit.

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Okay, that was their answer.

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The training plan says this.

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That's not what the Coast Guard said, Your Honor.

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That's what the decision says.

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No, Your Honor, the Coast Guard said that

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The association is resolute that you have not done enough work on the river to demonstrate proficiency.

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My client's contention, which was not rejected- I see no evidence that I acquired for full registration on all waters of the district.

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I see no evidence that he's done what the plan says he's supposed to do.

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Your Honor, the decision wasn't responsive to his argument.

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He didn't say that I've done all of these river trips, which historically have always been done after full registration.

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He said that everyone else before me did their river trips after they got registration.

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And it should be the work of an hour for the Coast Guard to just look at the records.

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But you seem to be proposing a standard that if anybody just raises a possibility, then the Coast Guard has to go and research it and prove whether it's correct or not.

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And that's just not the way it works.

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You conceded there has to be a credible allegation.

[00:10:49] Speaker 06:
Absolutely.

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And there's no credible allegation if there's no evidence whatsoever to support the contention.

[00:10:56] Speaker 05:
Well, Your Honor, his own affidavit, his own detailed allegations, I mean, we consider allegations credible in the context of a complaint where, you know.

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But where the allegation is about disparate treatment involving other people, there has to be some evidence about how the other people were treated.

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You can't just say it's a possibility and ask the Coast Guard to figure it out for you.

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You have to have evidence.

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Your Honor.

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And it seems to me that the one person that was specifically referenced, Chris Weggler,

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Your client seemed to concede that he had to do additional trips before he was registered.

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Only after he pointed out, my client pointed out, the inconsistent treatment.

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But there's no inconsistent treatment, in other words, though.

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There is none.

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There's no evidence even with respect to the one person that he pointed out.

[00:11:43] Speaker 05:
Your Honor, the inconsistency is that my client was not allowed to do those trips.

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If this were really about the training issue, then they would have said, oh, you're right.

[00:11:51] Speaker 01:
You haven't done these trips.

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That's a whole different claim.

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So now you're saying that what was arbitrary and capricious is that the Coast Guard should have forced the association to let him do some trips on the designated waters.

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Is that your claim now?

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Because that's not the claim that was pressed below or that I even see really being pressed administratively.

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So we certainly made the point that if the problem is that he has to take trips that he cannot take because the association won't let him, that's certainly preserved.

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That's the essence of our First Amendment claim.

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And the Coast Guard knew this.

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So where in the record did you argue that he wasn't allowed to take the trips on the designated waters that were supervised?

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He asked to and wasn't allowed to.

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So in his communications with the Coast Guard all throughout 2018, whenever the Coast Guard told him,

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You have to take this up with your association."

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He said, the association isn't answering my calls.

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They won't talk to me.

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They don't answer my emails.

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But where in the record did he argue that I couldn't have taken these designated trips that were supervised?

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Because when he was told, you're out of the program, they said, look, you haven't completed your training and you have a temperament issue.

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Where did he say, well, I couldn't have taken those trips because you didn't let me?

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I don't see that in the record.

[00:13:15] Speaker 05:
Just one correction.

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At no point in when he was

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dealing with the Coast Guard through 2018, did they ever say you're out of the program because of a temperament issue?

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What the Coast Guard kept saying was that you have to work this out with the association.

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I've counted about 10 places in the JA where the... I thought there was a letter on, I guess it was March.

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17th, it was like that he responded.

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I think it was, it was March 18th, March 18th, and then he responded the next day.

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But I thought that letter kind of explained to him, have you haven't completed your training and you have some temperament issues.

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And then when he responded, he didn't say he'd respond the very next day.

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He didn't say, hey, I wasn't able to complete my training on the designated waters because you didn't allow me to.

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I just don't see that as part of the arguments that were made.

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On JA 159, I believe it is, this is where he provides his story to the Coast Guard.

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Yes.

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Crucially, the Coast Guard here never asked him his side of the story.

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When the association said, look, we're going to terminate him, the Coast Guard said, we concur about 90 minutes later, and never reached out to Captain Hype to ask.

[00:14:24] Speaker 02:
There were many communications where they said, give us your information.

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Give us your evidence.

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They asked for it.

[00:14:31] Speaker 05:
Well, this was after he reached out to them several weeks later.

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Before the final agency decision in this case.

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That's what we reviewed.

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Yes.

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He was told, give us your information, give us your record.

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If you have evidence, give it to us.

[00:14:45] Speaker 05:
He provided his training records, which according to the Coast Guard's initial interpretation, satisfied the regulatory requirements.

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Then the Coast Guard reinterpreted the regulation at the request of the association so that his trips would no longer qualify.

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And that's what ended up getting decided in height one.

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This is really the same issue that we've been fighting about for five or six years at this point.

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He provided everything that they requested.

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And I think at bottom, the real issue here is that there is nothing that he can do to prove

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the inconsistent treatment because all the cards are in the Coast Guard's hand.

[00:15:25] Speaker 02:
He tried to get these records.

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Talk to his friends and get an affidavit.

[00:15:30] Speaker 02:
If we were at summary judgment in a civil case in the district court and someone said, well, I have my allegations in the complaint of how other people were treated.

[00:15:38] Speaker 02:
but I don't have any evidence yet.

[00:15:41] Speaker 02:
That might be enough to get you past emotion dismissed, but clearly would not be enough for summary judgment, right?

[00:15:47] Speaker 02:
So to obtain relief on a petition for review, conclusive relief, you have to meet a summary judgment standard of evidence, right?

[00:15:56] Speaker 02:
So it's his allegations here in a affidavit rather than a complaint.

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are not enough alone, if there's not evidence that someone could credit of differential treatment.

[00:16:08] Speaker 02:
He needed summary judgment type evidence.

[00:16:10] Speaker 05:
Your Honor, if this were summary judgment, then he would have those documents.

[00:16:14] Speaker 05:
He tried to get them in height one, and the Coast Guard said, absolutely not.

[00:16:16] Speaker 02:
You can't see them.

[00:16:18] Speaker 02:
No, no, no.

[00:16:18] Speaker 02:
There's not discovery on you come in on a petition for review.

[00:16:21] Speaker 02:
There's no discovery in this court right you come in with your story You know either you get your evidence and have it or you don't this isn't a claim about getting discovery or not This is it's a petition for review from a final agency decision that comes directly to this court.

[00:16:36] Speaker 02:
There is no discovery There's an administrative record and so he either puts information into the administrative record or he does not and

[00:16:43] Speaker 02:
And if there's no facts there to substantiate differential claim, we have no way of knowing other than what the administrative record shows.

[00:16:51] Speaker 02:
And we see in this record the Coast Guard saying, give us what information you have.

[00:16:57] Speaker 02:
And he never, what you say would only take the Coast Guard a little bit of time, would only have taken him a little bit of time to get some declarations from his friends.

[00:17:05] Speaker 05:
Your Honor, he can't get declarations from his friends because they want to keep their registrations.

[00:17:10] Speaker 05:
and they don't want to run afoul of the association.

[00:17:13] Speaker 02:
Where's that evidence in the record?

[00:17:17] Speaker 05:
In his declaration and in his complaint, he explains that he has seen people retaliated against before.

[00:17:23] Speaker 02:
His complaint isn't part of this case because we are in an administrative review.

[00:17:27] Speaker 02:
It is in his declaration, Your Honor.

[00:17:33] Speaker 02:
I tried to get declarations from my friends about their training, but they wouldn't do it because they were afraid of retaliation.

[00:17:41] Speaker 05:
Please show me where that page is in the GA.

[00:17:44] Speaker 05:
The declaration says that he has seen retaliation before.

[00:17:46] Speaker 02:
That doesn't mean he didn't even try.

[00:17:52] Speaker 02:
Is there evidence that he tried to get declarations from these people?

[00:17:55] Speaker 02:
No, you're wrong.

[00:17:56] Speaker 02:
Okay, then that's a very different

[00:17:59] Speaker 02:
So he doesn't have the evidence you need.

[00:18:04] Speaker 05:
Your Honor, what's missing in there, I understand the perspective, and I think what's missing to make that argument work is that there is no place in the record where the Coast Guard said, you haven't shown us that this is true.

[00:18:18] Speaker 05:
Show us something.

[00:18:19] Speaker 05:
What the Coast Guard said was, basically, we don't care.

[00:18:22] Speaker 05:
This is all between you and the association.

[00:18:24] Speaker 05:
It is not our job.

[00:18:28] Speaker 05:
There is also documentary record evidence showing that, or at least strongly suggesting that my client is correct.

[00:18:35] Speaker 05:
The association's articles say that the river training is something that is not a prerequisite for full registration.

[00:18:40] Speaker 05:
That has not been explained.

[00:18:42] Speaker 02:
Where is that?

[00:18:43] Speaker 02:
Where are you reading that?

[00:18:44] Speaker 05:
That is at JA 143.

[00:18:46] Speaker 05:
It describes a river training plan which will be offered in order of seniority, including to fully registered pilots who are working on the lake.

[00:18:54] Speaker 05:
Now, it's possible

[00:18:56] Speaker 05:
at JA 143, it is possible for somebody who's not yet fully registered to do the river training plan, but only if everyone with more seniority than them, including fully registered pilots, has done that training.

[00:19:07] Speaker 05:
That's the training that they're talking about here.

[00:19:09] Speaker 05:
So it cannot be, according to their own documents, a prerequisite for full registration.

[00:19:13] Speaker 02:
Sorry, was he an associate member when he got his deputy pilot?

[00:19:17] Speaker 05:
That's correct.

[00:19:18] Speaker 02:
Okay, so unless the program has first been offered to associate members.

[00:19:23] Speaker 05:
That's right, but it says that

[00:19:25] Speaker 05:
full members who haven't done the training yet, meaning that it is possible to become a full member, a registered pilot, without having done the training, they get to do it first.

[00:19:36] Speaker 05:
So it's descending order of seniority, and that includes fully registered pilots.

[00:19:41] Speaker 02:
But then again, we're missing the point where he said we don't have evidence that he tried, this is what Judge Pan asked you about, that he tried to get it, and they said no, you can't have it, this training.

[00:19:51] Speaker 05:
Well, we have evidence, he didn't even ask

[00:19:54] Speaker 05:
the Coast Guard to see the records of the other pilots.

[00:19:57] Speaker 05:
All he asked the Coast Guard to do was look itself.

[00:19:59] Speaker 05:
He said, look, these are records you're supposed to have.

[00:20:02] Speaker 05:
You can just look.

[00:20:02] Speaker 02:
This is the work of a few dollars.

[00:20:03] Speaker 02:
So he didn't have those records.

[00:20:05] Speaker 05:
of the other pilots.

[00:20:07] Speaker 02:
That's correct.

[00:20:07] Speaker 02:
He said just go look at other records.

[00:20:08] Speaker 02:
I don't have any idea what they show.

[00:20:10] Speaker 05:
He knows because he's been in this program working with these people for years, so he knows the way it works.

[00:20:18] Speaker 05:
But he's saying the Coast Guard can figure out, can prove it very easily, but the cards are all in the Coast Guard's hand.

[00:20:24] Speaker 05:
And it can't be rational decision making to say, look, you have a very detailed allegation here.

[00:20:30] Speaker 05:
But the only way you can prove it's true is if we open our own files and take a look.

[00:20:36] Speaker 05:
And you know what?

[00:20:36] Speaker 05:
We just don't feel like doing that.

[00:20:39] Speaker 05:
When a party comes forward with these kinds of allegations and there is a factual dispute between two third parties, the answer cannot be, under NTU Connecticut, that, well, our position is that this party is always right and you are always wrong.

[00:20:52] Speaker 05:
They have, particularly when one of the parties says, look, there's a very easy way to determine who's correct, and the agency just says, we don't want to do it.

[00:21:02] Speaker 03:
I just want to note the thing that you were pointing to at JA 143, that's for associate members who are registered for the lake portion.

[00:21:10] Speaker 03:
So they're not people who have been already registered for the river.

[00:21:14] Speaker 05:
Correct.

[00:21:15] Speaker 05:
The way it has always worked, yes.

[00:21:17] Speaker 05:
And the way it has always worked is that people get a full registration, and then they go on the lake pool.

[00:21:22] Speaker 05:
And then as they work their way up in seniority, then they get moved over to the river pool.

[00:21:28] Speaker 05:
But fully registered pilots were working full time on the lake, having not yet done the river training that the coast guards.

[00:21:34] Speaker 03:
They were registered for the lake, not for the river.

[00:21:36] Speaker 05:
That's correct.

[00:21:38] Speaker 03:
So I don't see how that proves your point.

[00:21:39] Speaker 03:
point, you said that this proves that people could be registered without their river training.

[00:21:43] Speaker 03:
He was trying to be registered for both the lake and the river without having the appropriate river training.

[00:21:49] Speaker 05:
No, Your Honor.

[00:21:50] Speaker 05:
He wants a full registration, which has always been offered initially just for the lake.

[00:21:55] Speaker 05:
And he would be happy to have that because that would let him work.

[00:21:58] Speaker 03:
It's not my understanding of how it works based on this record.

[00:22:01] Speaker 05:
Based on his

[00:22:03] Speaker 05:
He explains this in a lot of detail on JA 253 through 59.

[00:22:07] Speaker 05:
This is how the training has always worked.

[00:22:09] Speaker 05:
And he just wants to go to the next step where he gets to work full time on the lake.

[00:22:13] Speaker 05:
And then, you know, the river training, we might have to have a fight about whether he gets to do that.

[00:22:17] Speaker 01:
He doesn't get to explain how registration works.

[00:22:22] Speaker 01:
Laws and regulations dictate how registration works.

[00:22:27] Speaker 01:
What law or regulation says that you can be fully registered just for the lake and it's irrelevant whether you have registration for the river and be fully registered, which is what your client

[00:22:48] Speaker 05:
That's not in the regs, but it is past practice.

[00:22:52] Speaker 05:
And there is documentary evidence that this is how it worked.

[00:22:55] Speaker 05:
For instance, on JA 130, this is when he finished the first stage, the applicant pilot stage, and advanced to deputy.

[00:23:06] Speaker 05:
The president of the association said, he's ready to be registered for the lake and to work on the lake.

[00:23:12] Speaker 05:
And the Coast Guard said, great, that's fine, because that's how it's always worked.

[00:23:15] Speaker 05:
So a lot of this is just sort of

[00:23:18] Speaker 05:
informal practice, the way things have developed over time.

[00:23:21] Speaker 03:
The regs are not always updated.

[00:23:23] Speaker 03:
But he became a deputy pilot.

[00:23:26] Speaker 03:
He's not registered, but he's allowed to have unsupervised access to the lake as a deputy pilot.

[00:23:32] Speaker 03:
But that's not a registration.

[00:23:33] Speaker 05:
It is.

[00:23:34] Speaker 05:
He received a temporary registration as a deputy pilot.

[00:23:37] Speaker 05:
And what he wants is basically the same thing.

[00:23:39] Speaker 05:
He just wants it to be a permanent or rather a five year registration.

[00:23:43] Speaker 03:
But he wants a registration for both the lake and the river.

[00:23:46] Speaker 05:
No, Your Honor.

[00:23:47] Speaker 03:
He wants for the whole district, which is the lake and the river.

[00:23:51] Speaker 03:
But the practice has always been that you get a registration for... No, my understanding is he could ask for a registration for just the lake, but that's not what he asked for.

[00:24:00] Speaker 03:
He wants a full registration for the whole district, which is the lake and the river, but he did not complete the training for the river.

[00:24:08] Speaker 05:
No, Your Honor.

[00:24:09] Speaker 05:
He wanted the registration that everyone was getting at the point that they finished the deputy pilot phase, which was, it was a full registration, but they always told the pilots, this is for the lake.

[00:24:21] Speaker 05:
It's not in the regs, unfortunately, because this is always, this is just practice.

[00:24:24] Speaker 02:
They had a scheme inconsistent with the regs that said, we'll license you to go.

[00:24:29] Speaker 02:
on the river when you're not yet trained to do so?

[00:24:32] Speaker 02:
That's your client's position?

[00:24:34] Speaker 02:
No, no, no, absolutely not.

[00:24:35] Speaker 02:
That's what you just said, that you'll get the full license for a river and lake even though you're not yet trained to go on the river.

[00:24:45] Speaker 02:
That's what you just said, that that'll all come later.

[00:24:47] Speaker 02:
But you'll go ahead and get the full registration before you're trained.

[00:24:50] Speaker 05:
That's what the Articles of Association, that's what the Articles say, Your Honor.

[00:24:53] Speaker 02:
No, it's not what the training plan says.

[00:24:54] Speaker 05:
But it is what the association's articles say, and it is the way things are.

[00:24:58] Speaker 02:
That's your reading of it, but it's not what the training plan says.

[00:25:00] Speaker 05:
That's at JA 143, Your Honor.

[00:25:02] Speaker 02:
We just went over this.

[00:25:03] Speaker 02:
That's not what it says.

[00:25:04] Speaker 05:
But it refers to people who are registered separately for the lake and the river.

[00:25:08] Speaker 05:
There's nothing in the regs themselves.

[00:25:09] Speaker 03:
But that's a different thing.

[00:25:10] Speaker 03:
He can be registered for the lake.

[00:25:12] Speaker 03:
I understand that.

[00:25:13] Speaker 03:
But he wants to be registered for the lake and the river, the whole district, and he didn't complete his training for the river.

[00:25:20] Speaker 03:
This doesn't speak to what he wants to do.

[00:25:22] Speaker 05:
Your Honor, he's applying for registration as it was practiced throughout the time he was there, which was that when you get your full registration, it was always a lake registration.

[00:25:32] Speaker 05:
That's how it worked for everyone.

[00:25:33] Speaker 03:
What you're saying is really disturbing, because if that's true, that's extremely unsafe.

[00:25:37] Speaker 03:
And it's really hard for me to believe that the Coast Guard is running this training program this way, given what this record reveals to be how hazardous it is to navigate some of these waters.

[00:25:48] Speaker 03:
The fact that they would issue somebody, you're saying that it was common practice,

[00:25:52] Speaker 03:
to issue people a registration for the river, for the lake and the river, but say, but don't really use that, just use it for the lake.

[00:25:59] Speaker 03:
I cannot believe that that's true, and if so, that's a huge problem.

[00:26:03] Speaker 05:
No, they were not telling them that they are allowed to go on the river.

[00:26:07] Speaker 03:
But they gave them a registration for the river, which means that they're allowed to go on the river.

[00:26:11] Speaker 05:
No, Your Honor, the registration is just, it's the Coast Guard telling them, you're allowed to do this, and they tell you, you have to go on the lake, and then you do your training, and then we'll recognize that you're trained sufficiently for the river.

[00:26:22] Speaker 03:
So you're just repeating the same thing that I just said was very disturbing.

[00:26:25] Speaker 03:
You're saying that they're giving registrations for the lake, but telling them, don't use this, only use it for the lake until we finally train you for the river.

[00:26:35] Speaker 03:
I cannot believe that that's what they're doing.

[00:26:36] Speaker 05:
I don't think it's disturbing if you understand how this works in practice, Your Honor, which is that,

[00:26:40] Speaker 05:
The pilots don't have any say where they go.

[00:26:42] Speaker 02:
What evidence of impractice do you have?

[00:26:43] Speaker 05:
Sorry, what?

[00:26:44] Speaker 02:
What evidence of impractice is in the record?

[00:26:47] Speaker 02:
Other than your clients say so.

[00:26:49] Speaker 02:
Tell me one other person who was given a full registration for lake and river in this record without having been trained to do the very hazardous work on the river.

[00:27:00] Speaker 05:
I don't think anyone has and I think that's the point, Your Honor.

[00:27:04] Speaker 05:
They were not saying that this is a registration for both.

[00:27:08] Speaker 05:
They were saying you have a registration to work on the lake, and the association, your honor, tells you where to go.

[00:27:14] Speaker 02:
So all he wants is a registration for the lake?

[00:27:16] Speaker 05:
Absolutely.

[00:27:17] Speaker 05:
And then we can have a fight down the road about- You just said he wanted a reservation.

[00:27:20] Speaker 02:
You said, I'm getting incredibly confused, because my understanding was when Judge Pan asked you, does he just want a registration for the lake?

[00:27:28] Speaker 02:
He said, no, he wants the full registration, lake and river.

[00:27:32] Speaker 05:
No, he wants a registration for the lake.

[00:27:35] Speaker 05:
And that's the way it has always worked in the past.

[00:27:38] Speaker 03:
Why did he apply for a registration for the lake?

[00:27:40] Speaker 03:
Why did he apply for full registration?

[00:27:41] Speaker 03:
Yeah, why did he apply for full?

[00:27:43] Speaker 05:
Because they've always just said, I finished the training, so I've applied for full registration.

[00:27:50] Speaker 03:
So you keep saying they always, they always, but I just don't see that in this record.

[00:27:54] Speaker 01:
What document can you point to other than his affidavit

[00:27:59] Speaker 01:
that says that you can get a full registration without having undergoing any treatment, um, training on the river.

[00:28:10] Speaker 05:
Well, it's not no training.

[00:28:11] Speaker 05:
It's just the complete training that would allow you to solo navigate.

[00:28:15] Speaker 05:
Um, he has done river training.

[00:28:17] Speaker 05:
He just hasn't done as much as he would do if he were going to be a solo pilot navigating the river.

[00:28:22] Speaker 05:
But I think the,

[00:28:24] Speaker 05:
I keep coming back to it, but JA 143 makes very clear that you can get registration for one and not the other.

[00:28:30] Speaker 05:
And that's all he wanted.

[00:28:31] Speaker 05:
It's valuable to him because then he can work on the lake and he can make a living.

[00:28:34] Speaker 05:
He doesn't particularly.

[00:28:35] Speaker 03:
So why didn't he apply for registration on the lake?

[00:28:40] Speaker 05:
That's what he understood himself to be doing, Your Honor, because that's the way that this has always worked.

[00:28:45] Speaker 05:
He applies for full registration and then the Coast Guard would give it to you.

[00:28:48] Speaker 02:
Is there an option to apply?

[00:28:51] Speaker 01:
Please go ahead.

[00:28:53] Speaker 01:
Why isn't there a single letter, maybe I missed it in my review of the appendix, why doesn't he say,

[00:29:05] Speaker 01:
I don't have to do river training and I shouldn't have to do river training because all I want is full registration for Blake.

[00:29:16] Speaker 01:
Where does he ever say that?

[00:29:18] Speaker 05:
He makes quite clear, I think, in his administrative appeal and in his affidavit that the way things worked in the past and the way he wants it to be treated, the way he wants to be treated, is that he can get his registration and then he can do his river.

[00:29:35] Speaker 05:
His full registration but for the lake and that he can do his river training after.

[00:29:41] Speaker 05:
He's always maintained that he, I'm sorry, he's never argued that he gets to navigate the river without having done these trips that are referenced in the association's own articles.

[00:29:53] Speaker 05:
Clearly this is something that was practiced at least through this time period.

[00:30:01] Speaker 01:
So let me make sure I understand at least what you're contesting and what you're not contesting.

[00:30:09] Speaker 01:
JA-271, I asked you about that statement.

[00:30:15] Speaker 01:
Are you contesting whether there was substantial evidence in the record for the director to make the finding in that paragraph that Captain Height

[00:30:27] Speaker 01:
has comparatively little river experience and has never solo navigated a vessel between Snellloch to the east and Cape Vinson.

[00:30:36] Speaker 05:
We are not contesting that and we said that in our brief.

[00:30:40] Speaker 05:
The argument is that that was always something that people did after they got registered and started working full-time on the lake.

[00:30:47] Speaker 02:
JA107, you wrote a letter to the Coast Guard that said

[00:30:52] Speaker 02:
based on Captain Heights affidavit from the height one litigation.

[00:30:55] Speaker 02:
He completed 12 round trips on the designated waters, the river.

[00:31:00] Speaker 05:
That's true.

[00:31:01] Speaker 02:
12 round trips on the river in 2016 and 2017 when he was a deputy.

[00:31:07] Speaker 05:
Some of it was applicant, some of it was deputy, I believe.

[00:31:10] Speaker 02:
That's not what it says.

[00:31:12] Speaker 02:
It says in 2016 and 2017.

[00:31:14] Speaker 02:
Did he do 12 round trips on the river in 2016 and 2017?

[00:31:20] Speaker 05:
Yes, he did.

[00:31:22] Speaker 02:
So he's already done the trips as a deputy?

[00:31:24] Speaker 05:
He hasn't.

[00:31:25] Speaker 05:
That's correct.

[00:31:26] Speaker 05:
He has done these trips as a deputy pilot.

[00:31:29] Speaker 05:
Yes.

[00:31:31] Speaker 03:
They weren't supervised.

[00:31:32] Speaker 05:
No, they were.

[00:31:33] Speaker 05:
They were supervised.

[00:31:34] Speaker 05:
The difference is that the way this has worked in the past is that these trips are done more as an observer in this stage when you're a deputy.

[00:31:44] Speaker 05:
And then after you get registration,

[00:31:46] Speaker 05:
then he would take command and actually have his hands on the controls and be the one doing this all with someone else just watching.

[00:31:53] Speaker 02:
That's not what you're saying.

[00:31:54] Speaker 02:
You said in this letter that he completed the training, which he didn't just sort of stand, which isn't standing there and observing.

[00:31:59] Speaker 02:
It's doing the piloting.

[00:32:01] Speaker 02:
And you said here he did it 12 times.

[00:32:03] Speaker 02:
And then you're agreeing over here he hadn't done it.

[00:32:05] Speaker 02:
He hasn't done it more than once.

[00:32:08] Speaker 02:
And so I'm getting confused as to what's going on here.

[00:32:10] Speaker 02:
I mean, I had thought we all agreed at the beginning he had not completed

[00:32:16] Speaker 02:
that the statement that Judge Wilkins read from the Coast Guard Emerson decision was that he hadn't completed the trips, but you had previously written that he had done 12 trips as a deputy on the river.

[00:32:31] Speaker 05:
That's correct.

[00:32:32] Speaker 02:
As a pilot.

[00:32:33] Speaker 02:
Were these qualifying training trips?

[00:32:38] Speaker 02:
Because it seems like you wouldn't be giving us all this stuff.

[00:32:40] Speaker 05:
These are the trips that are referenced in the training plan.

[00:32:46] Speaker 05:
These are the trips that deputy pilots have always done.

[00:32:48] Speaker 05:
The difference is that the practice has always been, and this is detailed from 253 to 59, that after you get the registration, then you do different river trips where it's really you on your own and it's more like your driving test where someone there is there actually watching you.

[00:33:07] Speaker 02:
What did he do on these 12 trips you were referencing in the letter?

[00:33:10] Speaker 02:
He just observed?

[00:33:12] Speaker 05:
Primarily.

[00:33:12] Speaker 05:
He's on the bridge, he's talking to the people, he's learning about the waters, but he's not the one with his hands on the controls.

[00:33:18] Speaker 02:
Then why did you tell the Coast Guard that he'd already met the training requirement?

[00:33:21] Speaker 02:
Well, we did.

[00:33:21] Speaker 02:
We have since height one.

[00:33:22] Speaker 02:
Is that the training requirement?

[00:33:24] Speaker 05:
That's not what's referenced in the association's

[00:33:30] Speaker 05:
Articles and it's not I don't think that's so here's how I understand your argument.

[00:33:33] Speaker 03:
Tell me if I'm wrong You can see that for purposes of the training He made only one trip that was supervised on the river.

[00:33:42] Speaker 03:
That's in the record It seems to be uncontested and so based on the Coast Guard approved training plan He didn't comply with the Coast Guard approved training plan because it says you have to make it

[00:33:52] Speaker 03:
trips plural in the designated waters, which is the river.

[00:33:55] Speaker 03:
So he didn't comply with that.

[00:33:57] Speaker 03:
But your argument is even though he didn't comply with the letter of the training plan, there was this whole unofficial practice and he has not been treated in accordance with the way other people were treated under this unofficial practice.

[00:34:11] Speaker 05:
No, I'm sorry, your honor.

[00:34:13] Speaker 05:
That our contention is that these trips he took are exactly what's referenced in the plan.

[00:34:19] Speaker 05:
but that what the Coast Guard is referring to now is an unwritten additional requirement, and that that's what is referenced.

[00:34:27] Speaker 03:
What's the unwritten additional requirement?

[00:34:28] Speaker 05:
That's what's referenced in the association's articles when they talk about this river training plan that goes down in order of seniority.

[00:34:36] Speaker 05:
And in the past, and again, this is detailed in the declaration.

[00:34:40] Speaker 03:
I'm sorry.

[00:34:41] Speaker 03:
I'm trying to understand your argument.

[00:34:42] Speaker 03:
Okay.

[00:34:43] Speaker 03:
So you're saying,

[00:34:45] Speaker 03:
That it's true that he only did one supervised trip in designated waters and didn't comply with the Coast Guard approved training plan that's in the record at JA 135.

[00:34:56] Speaker 03:
But there's this river training program.

[00:34:58] Speaker 03:
There's this completely different training thing, which made it hard for him to do that because he was not an associate member who was temporarily registered for the lake, which would have had priority.

[00:35:11] Speaker 05:
No, sorry, Your Honor.

[00:35:12] Speaker 05:
We are not conceding that he failed to do anything that was in the plan.

[00:35:16] Speaker 05:
We think that those 12 trips are the continuing river trips referenced in the plan.

[00:35:20] Speaker 05:
What we're talking about is the unwritten requirement that he do solo navigation trips with someone watching him.

[00:35:31] Speaker 05:
That's not something that happened prior to full registration until after this case.

[00:35:36] Speaker 05:
It was not the way things worked while he was there.

[00:35:38] Speaker 05:
And that's what's referenced in the association's articles.

[00:35:44] Speaker 03:
So it says, the approving plan says, he has to continue to make trips, plural, in the designated waters in the company of registered pilots.

[00:35:52] Speaker 03:
They're saying he only made one.

[00:35:54] Speaker 03:
You're saying, no, he made 12.

[00:35:56] Speaker 03:
So why isn't that?

[00:35:58] Speaker 03:
I mean, my understanding was that was not a contested fact, that he had only made one.

[00:36:03] Speaker 03:
Where is it that he says, I made 12, and you're wrong about me only making one?

[00:36:08] Speaker 03:
Where's that in the record?

[00:36:09] Speaker 03:
Because I don't remember seeing that.

[00:36:11] Speaker 05:
Well, I don't have the J for that.

[00:36:14] Speaker 05:
It's certainly in our brief.

[00:36:16] Speaker 03:
Where in your brief?

[00:36:17] Speaker 05:
I don't have that to hand.

[00:36:19] Speaker 05:
I'm sorry.

[00:36:22] Speaker 02:
Provide a side on rebuttal.

[00:36:25] Speaker 05:
Sure.

[00:36:26] Speaker 05:
There wasn't a dispute about whether he took the trips that he said that they took.

[00:36:32] Speaker 05:
The dispute was whether he had done enough solo navigation of the river

[00:36:36] Speaker 05:
to be able to take command by himself without any observation.

[00:36:40] Speaker 03:
Right, so they read the trips on the designated waters to be solo navigation with a supervisor, and you read designated trips on the water to be just being on the water with other people observing.

[00:36:53] Speaker 05:
Right, and what he's always said is that this is how it has always worked, that you go mostly as an observer while you're a deputy pilot, and then afterwards,

[00:37:02] Speaker 05:
then you do the solo navigation.

[00:37:04] Speaker 03:
But it's a pilotage program.

[00:37:05] Speaker 03:
It's a pilotage program.

[00:37:06] Speaker 03:
So make trips in the designated waters.

[00:37:09] Speaker 03:
You have to be a pilot when you're making trips in the designated waters.

[00:37:12] Speaker 03:
You can't just sit on the boat.

[00:37:13] Speaker 03:
That doesn't count as making a trip.

[00:37:15] Speaker 03:
He can't just go on a pleasure cruise on the St.

[00:37:17] Speaker 03:
Lawrence River, and that wouldn't be making a trip.

[00:37:20] Speaker 03:
He has to be piloting.

[00:37:21] Speaker 05:
Of course not.

[00:37:21] Speaker 05:
Well, no, these are still educational trips.

[00:37:24] Speaker 05:
For one, he is a pilot.

[00:37:25] Speaker 05:
He's got his temporary registration for the lake.

[00:37:27] Speaker 05:
He's got his license.

[00:37:28] Speaker 05:
And he's going there.

[00:37:29] Speaker 05:
learning about it.

[00:37:31] Speaker 03:
He's interacting.

[00:37:32] Speaker 03:
But if it says make trips in the company of a registered pilot, why doesn't that mean you're piloting and somebody is supervising you, a registered pilot is supervising you?

[00:37:41] Speaker 05:
Because that's not the way it had ever been interpreted before.

[00:37:44] Speaker 05:
Because the constant practice, and he's always maintained this from 2018 to today, is that these were primarily as observers.

[00:37:52] Speaker 05:
And that's not worthless.

[00:37:54] Speaker 05:
If you're up there on the bridge, you're talking to people, you're getting to see this is the river they're going to be navigating, you're learning a lot.

[00:38:01] Speaker 05:
You just aren't yet the one with the hands on the controls issuing the orders.

[00:38:06] Speaker 01:
So that's like saying that one of my kids should be able to get a license to drive a car

[00:38:17] Speaker 01:
after they've made a minimum number of trips sitting in the front seat watching me drive.

[00:38:24] Speaker 01:
But they've never solo navigated under my or anyone else's supervision the car.

[00:38:30] Speaker 01:
But they should be given a driver's license to go drive because they have taken the requisite number of trips watching me push the brake and the gas pedal and turn the steering wheel, et cetera.

[00:38:44] Speaker 05:
So I think that's that's the way you're saying that this this works.

[00:38:48] Speaker 05:
No, the problem with that analogy, Your Honor, is that my client

[00:38:52] Speaker 05:
is already a licensed pilot, he's registered for the lake, and he's been a captain of huge ships on the high seas for many, many years.

[00:39:00] Speaker 05:
There's no dispute here that he has the skills to do this.

[00:39:03] Speaker 05:
What he's learning is just these specific waters.

[00:39:06] Speaker 05:
And he's learning a lot by being there on the ship, seeing the waters, interacting with the people who do this regularly.

[00:39:14] Speaker 05:
It's not a worthless experience.

[00:39:16] Speaker 05:
And he's not even arguing that that alone... No one says it's worthless.

[00:39:20] Speaker 02:
The question is whether it's qualifying.

[00:39:22] Speaker 05:
Well, it qualifies under the plan at least.

[00:39:25] Speaker 03:
Can we just clarify?

[00:39:26] Speaker 03:
So the district court made a finding.

[00:39:28] Speaker 03:
It's a J. A.

[00:39:29] Speaker 03:
293 that he made two one way trips on the ST Lawrence River in the 22 months after May 2016, which was when he was a deputy pilot.

[00:39:37] Speaker 03:
And only one of those trips was supervised.

[00:39:40] Speaker 03:
Therefore, only one of them would count for purposes of the training plan.

[00:39:44] Speaker 03:
The other trips apparently were from before he became a deputy pilot.

[00:39:49] Speaker 03:
And if that's not true, maybe on rebuttal you can tell us where in the record it shows that those trips were.

[00:39:55] Speaker 05:
I think they were in early 2016, so before he got the... Before he became a deputy pilot.

[00:39:59] Speaker 05:
Some of those were before he became a deputy.

[00:40:01] Speaker 03:
Okay.

[00:40:01] Speaker 03:
So maybe you can tell us on rebuttal where it says that anything other than these two were when he was a deputy pilot.

[00:40:08] Speaker 05:
A key problem though is that he doesn't have any say over where he goes.

[00:40:14] Speaker 05:
That's not how this works.

[00:40:15] Speaker 03:
You go.

[00:40:15] Speaker 03:
I'd like to understand, too, because it says here that he chose to be on the lake because he was making money and he didn't choose to do his training on the river.

[00:40:23] Speaker 03:
Right.

[00:40:24] Speaker 03:
That's money for the training.

[00:40:25] Speaker 05:
Well, that's that's what the association said.

[00:40:28] Speaker 05:
And it's not the way it's ever worked.

[00:40:30] Speaker 05:
And it's still not.

[00:40:31] Speaker 05:
If you look at the letter that the association sent to the Coast Guard,

[00:40:35] Speaker 05:
It says he will be dispatched because they have a dispatch organization in office.

[00:40:44] Speaker 05:
They run the tour de rôle, so they tell people where to go.

[00:40:46] Speaker 03:
No, I understand that.

[00:40:47] Speaker 03:
I mean, he wants to be on the role and he wants to be dispatched on the lake because he makes money, but then he has to take the initiative to complete his training.

[00:40:55] Speaker 03:
on the river, because I assume he's not getting paid for the training trips, but he has to make that happen for the training.

[00:41:03] Speaker 03:
They don't dispatch you for training unless you ask for it.

[00:41:06] Speaker 05:
No, they do dispatch you for training.

[00:41:07] Speaker 05:
He always went when he was told and everyone else did as well.

[00:41:12] Speaker 03:
So you're saying the way it works is when you're a deputy pilot and you need to

[00:41:18] Speaker 03:
fulfill this training obligation to make multiple trips on the river, you just wait until somebody dispatches you to go on the river for your training?

[00:41:26] Speaker 05:
That's right, because you can't take yourself off of assignments.

[00:41:30] Speaker 05:
You go where dispatch tells you, and someone else has to say, OK, I'm on the training committee.

[00:41:34] Speaker 05:
I've got some time.

[00:41:35] Speaker 05:
I'll take him on this one.

[00:41:38] Speaker 03:
You don't have to sign up for it.

[00:41:39] Speaker 05:
No, no.

[00:41:41] Speaker 03:
You do nothing but wait.

[00:41:42] Speaker 05:
The training committee is supposed to tell them, and this is what the plan says, that they're going to tell you what you're supposed to do.

[00:41:49] Speaker 03:
There's nothing, I think that this is all downstream of the really fundamental issue, which is that- So where in the record did your client argue that he was waiting for somebody to tell him and dispatch him to do his river training?

[00:42:06] Speaker 05:
I am not sure if that's in the record, Your Honor, but I think that this is

[00:42:12] Speaker 05:
is after, this is a little bit beside the point because we would know how all of this works if the Coast Guard had taken an hour to look at the records.

[00:42:23] Speaker 02:
Well hang on a second, so.

[00:42:24] Speaker 02:
That's a different argument.

[00:42:26] Speaker 02:
Yeah, I just, we're getting a lot of different arguments here and we're trying to understand them.

[00:42:30] Speaker 02:
So if, if, if I understand it and tell me if I misunderstand it, Coast Guard has its description of how this process works and what's required.

[00:42:43] Speaker 02:
Your client has a different understanding of what that process is, what's required and how it works, right?

[00:42:50] Speaker 02:
There seems to be a real clash.

[00:42:52] Speaker 05:
No, it's, I think that the clash is between my client's understanding and what the association has represented to the Coast Guard.

[00:42:59] Speaker 02:
I don't think the Coast Guard.

[00:43:00] Speaker 02:
The Coast Guard has its requirements and its understanding of what's going on.

[00:43:05] Speaker 02:
But I'll even take your version of it, okay?

[00:43:10] Speaker 02:
The association has its version, and your client has its version.

[00:43:16] Speaker 02:
And the Coast Guard has credited the association version, and we have some written documentation and evidence from them.

[00:43:24] Speaker 02:
You may disagree with, you may read things differently, but we have evidence on that.

[00:43:29] Speaker 02:
But we don't have evidence beyond your client's say so, which would not be sufficient for summary judgment.

[00:43:37] Speaker 02:
as to what really happens in the real world.

[00:43:40] Speaker 02:
You get these full licenses even though you're not fully licensed and you still have to do the training.

[00:43:47] Speaker 02:
Given our standard of review, how can we say the unsubstantiated understanding, we can assume it's genuine, but it's just not evidenced, can override

[00:44:05] Speaker 02:
the Coast Guard's crediting of the Association's description with documentation.

[00:44:11] Speaker 05:
Before we even get to the standard of review, I think the threshold is you have to rationally address

[00:44:20] Speaker 05:
these allegations at no point.

[00:44:22] Speaker 02:
No, we start with standard of review and that's how we even analyze whether there's a rational address of something and part of that standard of review is, is there any evidence in the record?

[00:44:32] Speaker 05:
I'm sorry, I mean the standard of review, there are two issues here.

[00:44:35] Speaker 05:
One is arbitrary and capricious and the other is substantial evidence.

[00:44:38] Speaker 05:
I don't think we get to substantial evidence until we have an actual explanation that we can make sense of.

[00:44:44] Speaker 02:
Okay, but I would like an answer to my question which really was a substantial evidence question.

[00:44:49] Speaker 02:
about they said, he said.

[00:44:53] Speaker 02:
And because there is a declaration from your client, assume that's correct understanding, and so the agency was presented with two alternatives, and it credited one over the other.

[00:45:13] Speaker 02:
And one had documentary evidence, and one had a declaration.

[00:45:19] Speaker 02:
And what in our standard review would allow us to say the Coast Guard should have credited the unsubstantiated declaration?

[00:45:29] Speaker 05:
So I agree.

[00:45:30] Speaker 02:
That's critical to your, at least your structural evidence argument.

[00:45:33] Speaker 05:
Yeah, no, so to be clear here, we're not saying the Coast Guard is required to credit what my client said, though I do think that the J-143 is documentary evidence supporting my client.

[00:45:43] Speaker 05:
What we're saying is that the Coast Guard has to have a rational explanation for why it's crediting one account over the other.

[00:45:49] Speaker 05:
And I think that is particularly true in a case like this where the Coast Guard has the answer.

[00:45:56] Speaker 05:
It has this information and it is super easy to find out.

[00:46:00] Speaker 05:
It can't be rational APA decision making to say, look, we have a disputed fact and instead of just opening the files.

[00:46:08] Speaker 02:
Oh, we have a dispute.

[00:46:09] Speaker 02:
Let's be crystal clear.

[00:46:11] Speaker 02:
We have a disputed allegation and the documentary evidence from the association.

[00:46:19] Speaker 02:
There is no, because we're struggling with your J143 point.

[00:46:26] Speaker 02:
Let's say that's honestly I'm done for you.

[00:46:28] Speaker 02:
Okay.

[00:46:28] Speaker 02:
So but it's something well that's that's debatable on how you read it.

[00:46:32] Speaker 02:
So I don't want to we cannot equate this as a summary judgment dispute of evidentiary substantiated facts because we just have a declaration of this is how I believe it always works.

[00:46:46] Speaker 02:
which would be perfectly fine for a complaint, but not for summary judgment.

[00:46:50] Speaker 02:
And so I'm struggling with how we're supposed to, because your argument, keep coming back to, frequently your response is, well, here's how it's always worked.

[00:46:58] Speaker 02:
Here's how it's always worked.

[00:47:00] Speaker 02:
And all we have is one person say so, and I don't know why the Coast Guard would be compelled to accept that.

[00:47:07] Speaker 05:
I think it's essential here.

[00:47:09] Speaker 05:
If this were something that is unknowable that the Coast Guard couldn't possibly figure out.

[00:47:13] Speaker 02:
Okay, so an allegation,

[00:47:16] Speaker 02:
An allegation without substantiation obligates, you want us to write an opinion that says that allegation without substantiation, but we assume in good faith, obligates the agency

[00:47:31] Speaker 02:
to go find more evidence and gather witnesses and documents.

[00:47:37] Speaker 05:
It's not necessarily a huge open-ended investigation.

[00:47:41] Speaker 02:
I'm not.

[00:47:41] Speaker 02:
All he said.

[00:47:41] Speaker 02:
I didn't say how I know, but you're saying, tell me what's wrong about what I'm saying.

[00:47:45] Speaker 02:
You said the obligation, you've said many times, it won't take long, it's easy.

[00:47:49] Speaker 02:
So that's an obligation on them to go gather evidence.

[00:47:54] Speaker 02:
That's the opinion we would have to write for you to win, your client to win.

[00:47:58] Speaker 05:
At least, I think it's a flexible standard.

[00:48:01] Speaker 05:
If the requirement, if figuring out the truth would be a huge burden on the agency, then it might be reasonable to say, we can't possibly figure that out.

[00:48:10] Speaker 05:
But from the very beginning, he said, this is really easy.

[00:48:14] Speaker 05:
You just have to look at the files.

[00:48:16] Speaker 05:
And the Coast Guard never said, I think this is important.

[00:48:18] Speaker 03:
Is there like a legal case or something that supports your, if it's easy to do, they should do it, and if it's not, they don't have to?

[00:48:25] Speaker 05:
Even if it's just an allegation?

[00:48:28] Speaker 05:
implicit in our I don't think that you can have reason decision-making that says we have a factual dispute and I could just Look at this to figure out who's true.

[00:48:36] Speaker 05:
It was telling the truth, but I won't But I think that I think that NTE Connecticut is the case that says that you have to at least Articulate a reason that you're crediting one over the other We're not even saying that they had to we are absolutely not saying they had to credit what my client was saying We're saying that if they're going to discredit it and credit someone else's they had to can't they just say you haven't offered any evidence and

[00:48:57] Speaker 05:
Well, they didn't do that, Your Honor, and that would be a different case because then we would have done more.

[00:49:02] Speaker 05:
If they had said, look, back in 2018... Wait, if they said you haven't offered any evidence, you don't get a round two.

[00:49:08] Speaker 05:
If in 2018... We don't get a round two.

[00:49:11] Speaker 02:
We review the final agency decision.

[00:49:13] Speaker 02:
I'm not reviewing prior stages.

[00:49:15] Speaker 02:
Final agency decision.

[00:49:16] Speaker 02:
You don't have evidence.

[00:49:18] Speaker 05:
And the final agency decision doesn't say there's insufficient evidence of this past practice.

[00:49:23] Speaker 05:
It doesn't say,

[00:49:24] Speaker 05:
I find what you're saying not credible.

[00:49:26] Speaker 05:
It just says, this is what the agency said.

[00:49:29] Speaker 05:
It basically ignored everything that Captain Heide's been saying since 2018.

[00:49:33] Speaker 05:
No one has ever given a response and said, well, we don't have enough evidence that this is how it worked.

[00:49:39] Speaker 05:
If you can show us, maybe it's different.

[00:49:41] Speaker 05:
They've never said, you're obviously wrong.

[00:49:44] Speaker 05:
They've never said, we looked at the records, and we don't think that's how it worked.

[00:49:48] Speaker 01:
There's none of that's there.

[00:49:49] Speaker 01:
Let me see if I can skin the cat a different way.

[00:49:55] Speaker 01:
The regulation at issue here, section 402.220, the registration of pilots regulation.

[00:50:07] Speaker 01:
You're not attacking that regulation as invalid or anything like that, right?

[00:50:13] Speaker 01:
Isn't it a reasonable reading of that regulation when it says that an apprentice pilot must complete a minimum number of round trips

[00:50:23] Speaker 01:
and where it says a minimum of five round trips are required over the waters for which registration is desired.

[00:50:32] Speaker 01:
Isn't it a reasonable interpretation of that regulation to say that there should be at least one round trip over the river, since that's part of the waters that

[00:50:51] Speaker 01:
you are requesting registration over.

[00:50:55] Speaker 05:
Your Honor, the answer to that's really easy.

[00:50:58] Speaker 05:
Height 1 decided that.

[00:50:59] Speaker 05:
It decided that under the regulations, Captain Height is satisfied that minimum trips requirement.

[00:51:04] Speaker 05:
That's why no one's talking about minimum trips requirement.

[00:51:06] Speaker 01:
Height 1 didn't decide that issue with respect, sir.

[00:51:10] Speaker 01:
Height 1 decided an issue was like whether he can take a test.

[00:51:14] Speaker 01:
It didn't decide whether

[00:51:22] Speaker 01:
whether he could ultimately and should ultimately be registered.

[00:51:26] Speaker 05:
That's true, but the reason he could take the test, what the agency was arguing was that he hasn't done the minimum trips under the regs, and Judge Mehta rejected that as contrary.

[00:51:35] Speaker 02:
He rejected their date from which you counted trips.

[00:51:39] Speaker 02:
They had a different date.

[00:51:41] Speaker 02:
Regulation says from date of application.

[00:51:43] Speaker 02:
They had a different interpretation of what application meant as opposed to his application.

[00:51:48] Speaker 02:
That's a completely different question.

[00:51:51] Speaker 01:
Are we bound by what the district court says?

[00:51:55] Speaker 05:
I think it's res judicata as to these parties, at least.

[00:51:58] Speaker 03:
They didn't appeal that.

[00:51:59] Speaker 03:
Hold on.

[00:52:00] Speaker 03:
Judge Maeda talked about minimum requirements, and now we're talking about requirements for registration, which is more than the minimum.

[00:52:08] Speaker 03:
We're talking about two different trip requirements in height one versus now, correct?

[00:52:13] Speaker 05:
Well, yes, they are not talking about the minimum trip requirements in the regs at this stage.

[00:52:19] Speaker 03:
Right.

[00:52:20] Speaker 05:
They are talking about something that they still cannot pinpoint.

[00:52:25] Speaker 03:
Correct.

[00:52:26] Speaker 03:
But just height one doesn't resolve what's before us today, because we're talking about the number of trips you need to be registered, not the minimum number of trips that you need.

[00:52:34] Speaker 01:
Let me, like, we're not playing poker here.

[00:52:38] Speaker 01:
I'm just going to tell you how I interpret

[00:52:43] Speaker 01:
the decision on appeal by Director Emerson with respect to training.

[00:52:52] Speaker 01:
What I got from all of this after trying to go through all the briefing and everything else is that ultimately what Director Emerson says is like, look, it appears

[00:53:09] Speaker 01:
that you haven't solo, that Captain Height did not solo navigate this part of the river under supervision, and at a minimum, he needs to do that at least once to be fully registered, and he hasn't done that.

[00:53:35] Speaker 01:
And you're not contesting that finding.

[00:53:38] Speaker 01:
in whether or not others got full registration without having done it or not.

[00:53:56] Speaker 01:
He doesn't address that, but under the rule of prejudicial error, I guess,

[00:54:06] Speaker 01:
What I'm trying to figure out is that even if the director said, you may be right that 10 other pilots have gotten full registration without having done a solo navigation trip on the river, I read this regulation as requiring that to be the case, and you haven't done it.

[00:54:36] Speaker 01:
you're not qualified and I'm not going to give it to you.

[00:54:42] Speaker 01:
And maybe we'll have to deal with these other people.

[00:54:48] Speaker 01:
But I don't know of a case that says that if a government official reasonably interprets regulation to require something and you haven't met the minimum requirements,

[00:55:04] Speaker 01:
that it is arbitrary and capricious decision making for them to not let you get your license when you haven't met the minimum requirement.

[00:55:22] Speaker 01:
that it is reasonable for them to have required you to meet.

[00:55:28] Speaker 05:
I understand, Your Honor.

[00:55:30] Speaker 05:
So two points.

[00:55:31] Speaker 05:
First, he didn't ground it in the regulation itself.

[00:55:34] Speaker 05:
He didn't say that this isn't meeting the minimum TRIPS requirement.

[00:55:37] Speaker 05:
So we don't need to consider that.

[00:55:39] Speaker 01:
But the key issue here is that he didn't... We don't think that he considered the regulation that governs the decision.

[00:55:47] Speaker 05:
It's not well, I think there was a good reason for him not to base it on that because of what happened in height one.

[00:55:54] Speaker 05:
There's a reason the government isn't talking about the regulatory minimum trips requirement anymore.

[00:55:59] Speaker 05:
We already litigated that and they didn't appeal it.

[00:56:02] Speaker 05:
Now, I think that if he had written an opinion where he said, wow, it looks like none of these guys should have been registered, well, you're not going to get registered, but we might have to look into that, that would at least be an effort to comply with Baltimore gas where you're addressing the inconsistent treatment.

[00:56:19] Speaker 05:
But he didn't do that.

[00:56:20] Speaker 05:
We're not suggesting that he's bound by agency precedent to never change policy.

[00:56:26] Speaker 05:
What he has to do is engage with what past practice has been.

[00:56:29] Speaker 05:
and offer some kind of a reasoned explanation, and you just didn't do that.

[00:56:35] Speaker 01:
It seems to me that once you concede that that reading of the regulation is reasonable, your argument fails.

[00:56:49] Speaker 05:
Your Honor, we don't.

[00:56:50] Speaker 05:
We just think it's decided by height one.

[00:56:51] Speaker 05:
I think the reg is pretty clear that it says that trips have to be made in the company with a registered pilot,

[00:56:56] Speaker 05:
after application has been sought and those requirements are clearly satisfied.

[00:57:01] Speaker 05:
I think that's what Judge Mehta said and they didn't appeal that.

[00:57:04] Speaker 05:
So regardless of whether this court thinks that's the right interpretation, I think the agency at least is bound in this proceeding.

[00:57:11] Speaker 03:
It just seems to me that at bottom you're relying on unwritten, informal understandings that are not clearly laid out in the record anywhere.

[00:57:23] Speaker 03:
Even aside from the fact that they're unwritten, unofficial, they're nowhere laid out.

[00:57:28] Speaker 03:
I don't see, and tell me if I'm wrong, your client actually saying, this is actually the way it's always been done.

[00:57:37] Speaker 03:
There are some vague references to them being treated differently, but there's never a specific

[00:57:42] Speaker 03:
sort of outlining of what he thinks the process is supposed to be.

[00:57:47] Speaker 03:
If it's there, tell me.

[00:57:48] Speaker 03:
I don't see that anywhere.

[00:57:49] Speaker 05:
If you want the most detail, it's from JA 253 to 59.

[00:57:53] Speaker 05:
That's where he goes through how this has always worked in the past.

[00:57:56] Speaker 05:
And I agree.

[00:57:57] Speaker 05:
This is unwritten practice.

[00:57:59] Speaker 05:
But the problem is, that's all the other side has too.

[00:58:01] Speaker 05:
I mean, at most they can say continue to take trips, but they know that what the trips are supposed to look like is not specified, how many is not specified, and they haven't grappled yet with the river training in their own articles.

[00:58:17] Speaker 05:
Whether you think that's conclusive or not, it doesn't fit with the way they are arguing things have always been, and they don't have any explanation for that.

[00:58:26] Speaker 03:
So you know, paragraph 96, I just went to the page that you told me to go to, but it seems to contradict what you said about they're just waiting to be dispatched to river training.

[00:58:35] Speaker 03:
It says, after pilots advance from applicant pilot phase to deputy pilot phase and receive temporary registrations, we rarely had time to take trips on the river, working primarily on the lake, particularly when rest requirements were enforced on training trips.

[00:58:49] Speaker 03:
Prior to 2016, this was not enforced.

[00:58:51] Speaker 03:
That doesn't say that they don't dispatch us.

[00:58:54] Speaker 03:
He's saying that he doesn't have time.

[00:58:56] Speaker 03:
It seems like it's incumbent on the deputy pilots to plan their river training despite their commitments on the lake.

[00:59:04] Speaker 03:
And that's consistent with the findings in the record by his superiors that say he prioritized the lake training because it was paid.

[00:59:13] Speaker 03:
I think it was incumbent on him, it seems, to sign up for the river training.

[00:59:19] Speaker 05:
I can understand.

[00:59:21] Speaker 05:
I don't think that that's clearly stated one way or the other.

[00:59:24] Speaker 03:
The way he's explained this to us, Your Honor... So where in here does it say, we are waiting for people to dispatch us to early training?

[00:59:30] Speaker 05:
I don't think it does, Your Honor.

[00:59:32] Speaker 03:
So that's not in the record anywhere?

[00:59:34] Speaker 05:
I'm not aware of that being in the record, Your Honor.

[00:59:38] Speaker 03:
Okay, so we can't consider that.

[00:59:41] Speaker 02:
Any other questions?

[00:59:43] Speaker 02:
We've kept you up for a long time.

[00:59:44] Speaker 02:
Thank you, counsel.

[00:59:44] Speaker 02:
We'll give you some rebuttal time.

[00:59:47] Speaker 02:
All right, the Justice Department now.

[00:59:48] Speaker 02:
Mr. DeSantos.

[01:00:02] Speaker 04:
May it please the court, Josh DeSantos on behalf of the United States.

[01:00:05] Speaker 04:
I'll just start with what is at issue here was just a request for full registration to be able to pilot by himself in the waters of the St.

[01:00:16] Speaker 04:
Lawrence River, which are particularly hazardous for the reasons that the Coast Guard explained in its decision.

[01:00:22] Speaker 04:
And what the Coast Guard said was you haven't met the requirement in 420.220B2 that you complete a training program by the pilot association that are local experts in those waters.

[01:00:35] Speaker 04:
During the second stage of your training program, the deputy pilot stage, he only had a single half round trip that was evaluated and that wasn't enough to show that he'd continue to make trips, plural, demonstrating his proficiency.

[01:00:50] Speaker 04:
And the Coast Guard just wasn't going to authorize someone to pilot by themselves in this particularly dangerous area when they haven't demonstrated their proficiency.

[01:01:00] Speaker 04:
On the other arguments we sent in our brief, I welcome the court's questions.

[01:01:04] Speaker 03:
What's your understanding of how that works?

[01:01:07] Speaker 03:
Your friend on the other side says that in order to make the trips on the river, they're waiting to be dispatched there.

[01:01:14] Speaker 03:
Is that the way it works?

[01:01:16] Speaker 04:
My understanding is that dispatch has to do with the lake portion because when they're in their deputy pilot stage, they have the temporary registration to work on the lake and they go out on their own.

[01:01:25] Speaker 04:
So they're dispatched normally.

[01:01:26] Speaker 04:
They get their pilot's earnings the same way that other pilots do on the lake.

[01:01:30] Speaker 04:
So that's what the dispatch is about, but they would have to request to be put on training trips on the river.

[01:01:37] Speaker 03:
And that's what the Coast Guard- So there's no dispatch on the river for people who are not full members.

[01:01:42] Speaker 03:
That's my understanding.

[01:01:43] Speaker 03:
Or at least temporary members.

[01:01:44] Speaker 04:
Right.

[01:01:45] Speaker 04:
My understanding is you seek out training opportunities, and that's what the Coast Guard was referring to in the decision, saying you focus on the lake and you didn't make time to complete trips on the river.

[01:01:56] Speaker 01:
What do the regulations say about how many solo navigation trips on the river are required to get the full designation.

[01:02:08] Speaker 04:
So there's the there's the minimum just requirement what that issue here is the training program, which is also you have required to complete it under 420.

[01:02:16] Speaker 04:
The training plan has the two stages.

[01:02:21] Speaker 04:
So in the first stage, there's a certain number of required trips.

[01:02:23] Speaker 04:
The second stage at issue here says you will continue to make trips to demonstrate the proficiency.

[01:02:30] Speaker 04:
And that's the part that the Coast Guard said was lacking here because there was only one single half round trip that was evaluated.

[01:02:38] Speaker 01:
Just so that I'm clear, what regulation are you citing here?

[01:02:43] Speaker 04:
So the regulation that I'm talking about is, it's 46 CFR, I think it's 420, 401, excuse me, dot 220B2.

[01:03:00] Speaker 04:
And then the training plan is the one we've been talking about from pages 130 to 37 of the appendix.

[01:03:09] Speaker 04:
So you can see on page 135, that's the requirement that's at issue here.

[01:03:14] Speaker 04:
The applicant will continue to make trips in the designated waters, plural.

[01:03:18] Speaker 04:
And let me just emphasize, this program, it's basically like an apprenticeship program with the experts in these local waters.

[01:03:25] Speaker 04:
So, I mean, some people learn faster than other people, and the training will be given more and more control gradually until they

[01:03:34] Speaker 03:
So there is no set number of trips that you have to make, but it's more than one, because it says trips, plural.

[01:03:40] Speaker 03:
It's more than one.

[01:03:41] Speaker 03:
So this would be a harder case if he had made three trips.

[01:03:45] Speaker 03:
Potentially, right?

[01:03:46] Speaker 03:
Or two trips.

[01:03:47] Speaker 04:
It would still be squarely within the expertise of judgment about safety.

[01:03:51] Speaker 03:
No, I understand that, but it would be a harder trip because he's made less than one and this says trips.

[01:03:55] Speaker 04:
That's right.

[01:04:04] Speaker 02:
What are we to do with his declaration, which says a great length?

[01:04:12] Speaker 02:
The trips I did before I became a deputy on the St.

[01:04:16] Speaker 02:
Lawrence River should count.

[01:04:18] Speaker 02:
So that was during, I think, undisputedly during phase one of his training.

[01:04:22] Speaker 02:
I understand, but why shouldn't that count?

[01:04:24] Speaker 02:
He says that's what's always counted before.

[01:04:28] Speaker 02:
Why shouldn't those count?

[01:04:30] Speaker 02:
Do you do something different once you're declared a deputy pilot?

[01:04:34] Speaker 02:
Do you have any different role piloting than they would have had in those trips he did as an applicant pilot?

[01:04:42] Speaker 04:
So my understanding is that during the applicant pilot phase they're mainly observing and then in the deputy pilot they gradually get more responsibility with the goal of them being able to solo pilot.

[01:04:53] Speaker 04:
You can see on 137 of the appendix, I think those are the standards of evaluation, and you'll see that it references- Sorry, are you talking about their training plan?

[01:05:05] Speaker 04:
Yeah, at the end of the training plan, there's the grades that you can get, and those reference, like ability to solo pilot.

[01:05:13] Speaker 01:
I'm sorry, what page are you on?

[01:05:14] Speaker 04:
137, I believe, unless I've miswritten it down.

[01:05:19] Speaker 04:
But those standards, those are basically the way that they would be evaluated, right?

[01:05:24] Speaker 04:
They could get a zero if they didn't know what they were doing, a one if they're just adequate, and a two if they demonstrate really great and exceptional knowledge of all of the hazards.

[01:05:35] Speaker 04:
And there you can see that it's-

[01:05:38] Speaker 02:
The only one that talks about soloing is excellent performance, which isn't required to get your license.

[01:05:44] Speaker 02:
The other two simply talk about acceptable proficiency, little coaching, understanding of critical areas doesn't mean that you've piloted through them.

[01:05:54] Speaker 03:
Well, acceptable says you have to provide politics services unaccompanied.

[01:05:58] Speaker 03:
You have to display the skills to provide public services.

[01:06:01] Speaker 03:
Right.

[01:06:01] Speaker 04:
The goal here is to get the person ready to be on their own by themselves in this river.

[01:06:06] Speaker 04:
And as the Coast Guard explained, I mean, this river in particular is dangerous because of all of them.

[01:06:11] Speaker 02:
But displays the skills and knowledge to do something isn't the same thing as doing.

[01:06:14] Speaker 02:
I'm just contrasting one and two, which actually says they've soloed under supervision between two being excellent, one acceptable.

[01:06:25] Speaker 02:
Do we know that this displays the skill and knowledge to provide pilotage?

[01:06:30] Speaker 02:
I mean, people supposedly on the bar exam display the skills and knowledge to be a lawyer even without actually practicing law to pass the bar exam.

[01:06:41] Speaker 02:
And that's different from saying they've solo handled a case.

[01:06:44] Speaker 04:
Right.

[01:06:45] Speaker 04:
What I'm saying here and what the Coast Guard said is the single half round trip

[01:06:49] Speaker 04:
did not show that you have the adequate knowledge and experience and ability to do this.

[01:06:54] Speaker 02:
But why would they just look at that one and not also look at what they did as an applicant?

[01:06:59] Speaker 02:
Could that show skills and knowledge too?

[01:07:02] Speaker 04:
So there was a decision made to promote him, right?

[01:07:06] Speaker 04:
So he was an applicant and then there was a decision made.

[01:07:08] Speaker 04:
You've done good so far.

[01:07:10] Speaker 04:
We'll promote you to deputy pilot.

[01:07:12] Speaker 04:
The Coast Guard approved that.

[01:07:13] Speaker 04:
Then he was deputy pilot.

[01:07:14] Speaker 04:
Now he's in the second stage.

[01:07:16] Speaker 04:
And then he, now he has to show that he's gonna learn enough to be able to go by himself.

[01:07:21] Speaker 02:
I'm trying to understand is that, so, so you say during the applicant stage when they're on.

[01:07:27] Speaker 02:
the river, because that's what matters here.

[01:07:30] Speaker 02:
They're not really piloting, they're just observing.

[01:07:34] Speaker 02:
Do they do any piloting during the applicant stage?

[01:07:37] Speaker 04:
I don't know that it says they can't.

[01:07:40] Speaker 04:
I think primarily they're observing, and I think that's what has been admitted that he was doing here.

[01:07:46] Speaker 02:
Coast Guard thinks that based on what?

[01:07:48] Speaker 04:
That's my understanding based on conversations.

[01:07:52] Speaker 04:
And also just I submitted here that he was only observing in the applicant pilot stage of his training.

[01:07:58] Speaker 02:
Right.

[01:07:58] Speaker 02:
So all this stuff, this makes perfect sense, but it doesn't seem to be written down here.

[01:08:05] Speaker 04:
Yeah.

[01:08:05] Speaker 04:
Well, the part that's written down is that he has to continue to make trips to show his proficiency.

[01:08:10] Speaker 04:
And he had only half a round trip, only one half round trip that was evaluated.

[01:08:15] Speaker 04:
and that was not enough, and that's perfectly reasonable.

[01:08:18] Speaker 02:
He says that's not, what about his argument that that's not how it's done, that people get their full registration, you count all the trips they've done since they first applied, for applicant and deputy, that's how it's always done, and then, of course I'll get more training after that, but you count everything cumulatively.

[01:08:37] Speaker 02:
His central argument is, here's how it's always been done,

[01:08:43] Speaker 02:
And he names people in his declaration and where is the answer in the record to the no that's not how it's been done.

[01:08:51] Speaker 02:
I can't tell from reading the decision whether this is a new interpretation or the one that they've always applied.

[01:08:57] Speaker 04:
So I think that this is the training plan that was approved by the Coast Guard and there's obviously two stages to it.

[01:09:04] Speaker 04:
So that means that there are two different parts of the training.

[01:09:08] Speaker 04:
The person is promoted from one to the other.

[01:09:10] Speaker 04:
So in the second part, continue to make trips means more trips, not the same trips.

[01:09:14] Speaker 04:
You continue to make trips, more trips.

[01:09:17] Speaker 04:
And then so like the bottom line here is just that you didn't do that during your second stage.

[01:09:23] Speaker 04:
And I'll also just note, it's very implausible to think that someone would get full registration, which means authorization to be piloting by yourself.

[01:09:31] Speaker 04:
in the particularly dangerous areas that we're talking about here without having had more experience and done more trips during the second stage, which is supposed to be leading up to being able to do things on your own.

[01:09:46] Speaker 01:
So what about Baltimore gas?

[01:09:49] Speaker 01:
Your friend on the other side says, look, it's not reason decision making where he points out that he's done