UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MICHAEL S. FLAHERTY et al.,
Plaintiffs, v. Civil Action No. 11-660 (TJK) WILBUR ROSS et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Michael Flaherty, Captain Alan Hastbacka, and the Ocean River Institute filed
their initial complaint in 2011. They sued the Secretary of Commerce, the National Oceanic and
Atmospheric Administration, and the National Marine Fisheries Service (“the Service”), alleging
that Defendants violated the Magnuson-Stevens Act and the Administrative Procedure Act in
amending a federal fishery management plan covering the Atlantic herring fishery in the
northeastern United States.
Over the course of the litigation, including multiple rulings from this Court, Plaintiffs
have several times amended or supplemented their complaint, updating their challenges to reflect
Defendants’ subsequent amendments to the plan. Perhaps frustrated with what they perceived as
an inability to compel the specific changes to the plan they seek, Plaintiffs most recently
amended their complaint to include two claims. They assert those claims—Count II and Count
III—directly against the New England Fishery Management Council (“the Council”), the body
that developed the plan at issue and proposed it to Defendants. But Plaintiffs face an ultimately
fatal obstacle: the Council is not an “agency” as that term is defined under the Administrative
Procedure Act. And Defendants, along with the Sustainable Fisheries Coalition (“Defendant-
Intervenor”), which intervened as a defendant, have filed motions to dismiss Counts II and III on that basis, among others. Because the Court holds that the Council is not an “agency” as defined
under the Administrative Procedure Act, the Court lacks jurisdiction over Plaintiffs’ claims
against it and Counts II and III must be dismissed. Accordingly, and for the reasons explained
below, the motions will be granted.
Factual and Procedural Background
A. The Magnuson-Stevens Act
Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act (the
“MSA” or “Act”), 16 U.S.C. § 1801 et seq., in 1976 to conserve and manage the Nation’s fishery
resources. The Act establishes a “national program for the conservation and management of”
those resources with the aim to “prevent overfishing, to rebuild overfished stocks, to insure
conservation, to facilitate long-term protection of essential fish habitats, and to realize the full
potential of the Nation’s fishery resources.” Id. § 1801(a)(6). Congress nominally placed this
program and its attendant responsibilities under the authority of the Secretary of Commerce, but
in practice the Secretary delegates that authority to the Service, a sub-agency of the National
Oceanic and Atmospheric Administration. See NRDC v. Nat’l Marine Fisheries Serv., 71
F. Supp. 3d 35, 40 (D.D.C. 2014).
A key feature of the MSA’s conservation and management program are its “fishery
management plans” (FMPs), which are designed to “achieve and maintain, on a continuing basis,
the optimum yield from each fishery.” 16 U.S.C. § 1801(b)(4). The Act defines a “fishery” as
“one or more stocks of fish which can be treated as a unit for purposes of conservation and
management and which are identified on the basis of geographical, scientific, recreational, and
economic characteristics,” as well as “any fishing for such stocks.” Id. § 1802(13). A “stock of
fish” is defined as “a species, subspecies, geographical grouping, or other category of fish
capable of management as a unit.” Id. § 1802(42). Each FMP must include the “conservation
2 and management measures”—e.g., catch quotas, restrictions on fishing technique and gear, and
other rules and regulations—“necessary and appropriate for the conservation and management of
the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and
promote the long-term health and stability of the fishery.” Id. § 1853(a)(1).
To develop the FMPs, among other tasks, “[t]he Act established eight regional Fishery
Management Councils, each of which has ‘authority over a specific geographic region and is
composed of members who represent the interests of the states included in that region.” Anglers
Conservation Network v. Pritzker, 809 F.3d 664, 667 (D.C. Cir. 2016) (quoting C & W Fish Co.,
Inc. v. Fox, 931 F.2d 1556, 1557–58 (D.C. Cir. 1991)). The councils are “comprised of state and
federal officials from the region with ‘marine fishery management responsibility and expertise,’
as well as individuals appointed by the Secretary of Commerce.” Oceana, Inc. v. Locke, 831
F. Supp. 2d 95, 100 (D.D.C. 2011) (quoting 16 U.S.C. § 1852(b)). And the MSA provides that
“[e]ach Council shall, . . . for each fishery under its authority that requires conservation and
management, prepare and submit to the Secretary (A) a fishery management plan, and
(B) amendments to each such plan that are necessary from time to time.” 16 U.S.C. § 1852(h).
As relevant here, the Council oversees fisheries in the Atlantic Ocean off the coast of Maine,
New Hampshire, Massachusetts, Rhode Island, and Connecticut. Id. § 1852(a)(1)(A).
The Fishery Management Councils, however, “ha[ve] no authority to promulgate federal
rules.” Anglers Conservation Network, 809 F.3d at 667 (citing Gen. Category Scallop
Fishermen v. Sec’y, U.S. Dep’t of Commerce, 635 F.3d 106, 112 n.15 (3d Cir. 2011)). Once a
Fishery Management Council develops a proposed FMP or amendment to such a plan, it must
then submit that proposal, along with draft regulations it considers necessary to implement the
proposal, to the Secretary—in practice, the Service—to review for consistency with the MSA’s
3 requirements and other applicable law. See 16 U.S.C. §§ 1852(h)(1), 1854(a)–(b). The Service
must publish the proposal in the Federal Register and facilitate a notice-and-comment process,
after which it must “approve, disapprove, or partially approve [the proposal].” Id. § 1854(a).
The MSA prescribes a similar procedure for the implementing regulations. See id. § 1854(b).
“If, upon completing this review, [the Service] approves the FMP or amendment, a final rule and
one or more implementing regulations are published in the Federal Register.” Oceana, 831
F. Supp. 2d at 101 (citing 16 U.S.C. § 1854(b)(3)). That FMP, as incorporated into a final rule,
and any accompanying regulations, are subject to judicial review under the APA upon filing of a
petition within 30 days of promulgation. 16 U.S.C. § 1855(f)(1).
B. The Atlantic Herring Fishery Management Plan
The FMP at issue here protects and manages Atlantic herring. See Flaherty v. Bryson,
850 F. Supp. 2d 38, 45 (D.D.C. 2012) (“Flaherty I”).1 That plan (the “Herring FMP”) first
became effective in 2001, and since then the Council and the Service have periodically updated
the Herring FMP with amendments, some of which have been addressed by this Court over the
course of this lawsuit. See Flaherty v. Pritzker, 195 F. Supp. 3d 136, 141–43 (D.D.C. 2016)
(“Flaherty II”) (discussing the factual and procedural history of this case). Atlantic herring are
primarily harvested by trawler vessels, which drag nets behind them to collect the herring and,
typically, ensnare other fish and marine wildlife as well. See Flaherty I, 850 F. Supp. 2d at 45.
Plaintiffs are particularly concerned with two species of fish—river herring and shad—
that they allege are “inextricably involved” with the Atlantic herring fishery and are harvested by
vessels and incidentally caught as bycatch by vessels fishing for Atlantic herring. See ECF No.
158 (“3d Am. Compl.”) ¶¶ 71–77; Flaherty I, 850 F. Supp. 2d at 45–47. Neither river herring
1 A more detailed background of the Atlantic herring fishery and the Council’s Atlantic herring FMP is set forth in the Court’s previous opinion in Flaherty I, 850 F. Supp. 2d 38.
4 nor shad have been designated as a “stock” within the Atlantic herring fishery such that they
would be directly subject to annual catch limits and other conservation and management
measures under the Herring FMP. Flaherty I, 850 F. Supp. 2d at 50–51. Throughout this action,
Plaintiffs have insisted that not including them violates the MSA. Id. at 50–56; 3d Am. Compl.
¶¶ 82, 107–147 (Counts I–III).
C. Procedural History
Plaintiffs commenced this action in April 2011, filing a complaint that challenged the
Service’s final rule adopting an amendment—“Amendment 4”—to the Herring FMP. See ECF
No. 1. Among other claims, the complaint alleged that the Herring FMP did not comply with the
requirements of the MSA and other applicable law because it failed to include river herring and
shad as “stocks” in the fishery. Id. ¶¶ 70–82. On March 9, 2012, this Court found that the
Service had failed to adequately review the proposal not to include those stocks and granted
summary judgment to Plaintiffs on that question. Flaherty I, 850 F. Supp. 2d at 56. The Court
later entered a remedial order that, among other things, remanded Amendment 4 to the Service
for reconsideration and required the Service to send a letter to the Council “recommending that
the Council consider . . . whether ‘river herring [and shad]’ should be designated as a stock in the
fishery” based on certain information and materials identified by the Court. See ECF No. 41 at
10–12.
On August 31, 2012, the Service filed a supplemental letter to the Court explaining that,
upon reconsideration, the Service concluded that Amendment 4 complied with applicable law.
See ECF No. 42-1. On November 22, 2013, Plaintiffs moved to enforce the remedial order,
arguing that the Service, in reconsidering Amendment 4, violated the Court’s instructions. ECF
No. 62. While that motion was pending, Defendant-Intervenor filed an unopposed motion to
intervene, which the Court granted. See ECF Nos. 76, 85. On February 19, 2014, after briefing
5 and a hearing, the Court denied Plaintiffs’ motion to enforce. See Flaherty v. Pritzker, 17
F. Supp. 3d 52, 54 (D.D.C 2014) (“Flaherty III”).
While those matters were proceeding, the Council developed Amendment 5 to the
Herring FMP, in which it again did not designate river herring or shad as “stocks” in the fishery.
The Service approved the proposal and published a final rule implementing Amendment 5 on
February 13, 2014. See Fisheries of the Northeastern United States; Atlantic Herring Fishery;
Amendment 5, 79 Fed. Reg. 8786, 8796 (Feb. 13, 2014). Plaintiffs, with the Court’s leave, filed
a supplemental complaint challenging the implementation of Amendment 5, see ECF No. 94,
which Defendants answered, ECF No. 108. Over the course of the next two years, the parties
filed periodic status reports updating the Court on efforts by the Council and Service that might
resolve the parties’ dispute, including the Council’s review of whether to develop a new
amendment to add river herring and shad to the Herring FMP. See ECF Nos. 122, 125, 131, 144;
see also ECF No. 147; 3d Am. Compl. ¶¶ 99–106.
When the Council decided not to immediately undertake new action to include those two
species in a proposed amendment, however, Plaintiffs sought leave to amend their complaint to
name the Council as a defendant and bring claims directly against the Council for failure to
comply with the MSA and the APA. See ECF No. 152. They sought to add claims that the
Council violated the APA when (1) it submitted Amendment 5 without designating river herring
and shad stocks of the fishery (Count II) and (2) it failed to subsequently initiate an amendment
to add river herring and shad as stocks in the fishery (Count III). 3d Am. Compl. ¶¶ 126–47.
Defendants opposed, arguing that the Council’s actions at issue were not “final agency actions”
subject to review under the APA—because the Council was not an “agency” under the statute
and, regardless, because the actions were not “final”—and thus that the amendments would be
6 futile. See ECF No. 153. The Court, noting that the parties had raised “novel legal issues,”
found those issues better suited for more targeted briefing on a motion to dismiss. See ECF No.
157. Accordingly, on August 21, 2017, the Court granted Plaintiffs’ motion to amend the
complaint. See ECF No. 156. And on September 14, 2017, the case was directly reassigned to
the undersigned.
On October 6, 2017, Defendants moved to dismiss Counts II and III for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). See ECF No. 164 (“Defs.’ MTD”).
Defendant-Intervenor filed a similar motion to dismiss those two counts but pursuant to Rule
12(b)(1) and (6), arguing that the Court lacked jurisdiction over claims against the Council and
that the MSA precluded Plaintiffs from bringing the claims raised in those counts. ECF No. 166
(“Def.-Int.’s MTD”).
Legal Standard
Federal courts are courts of limited subject-matter jurisdiction. “It is to be presumed that
a cause of action lies outside this limited jurisdiction, and the burden of establishing the contrary
rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994) (citations omitted). The scope of that jurisdiction is delineated both by Article
III and statutory limits, and “no action of the parties can confer subject-matter jurisdiction upon a
federal court.” Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
(1982).
Under Rule 12(b)(1), a party may move to dismiss a claim because the Court lacks
subject-matter jurisdiction to hear it. See Fed. R. Civ. P. 12(b)(1). But federal courts also have
“an independent obligation to determine whether subject-matter jurisdiction exists,” even when
jurisdictional defects are not specifically identified by the parties. Arbaugh v. Y & H Corp., 546
U.S. 500, 514 (2006). When considering whether subject-matter jurisdiction exists, the Court
7 must “assume the truth of all material factual allegations in the complaint and ‘construe the
complaint liberally, granting [Plaintiffs] the benefit of all inferences that can be derived from the
facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting
Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). The Court may, however, consider
materials outside the pleadings. See Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C.
Cir. 2005).
Analysis
The key question raised by the instant motions can be stated simply: is the Council an
“agency” as that term is defined under the APA? Defendants, presumably relying on the APA’s
general requirement that there have been “agency action,” see 5 U.S.C. §§ 702, 704, treat this
inquiry as one addressing whether Plaintiffs have stated a claim upon which relief can be
granted, and therefore suited for review under Rule 12(b)(6). See Defs.’ MTD at 1, 14; ECF No.
168 (“Defs.’ Reply”) at 6. Defendant-Intervenor, for its part, argues that the Court’s jurisdiction
depends on whether the Council qualifies as an “agency,” but it appears to presume jurisdiction
hinges on the premise that the Council must be an agency to take the kind of “agency action” that
would sustain a cause of action under the APA. See Def.-Int.’s MTD at 8, 10. The Court,
however, finds that it lacks jurisdiction for a more fundamental reason—the United States has
not waived its sovereign immunity as to these claims against the Council.
“Absent a waiver of sovereign immunity, the Federal Government is immune from suit.”
Loeffler v. Frank, 486 U.S. 549, 554 (1988). And whether sovereign immunity bars a particular
claim is “jurisdictional in nature.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). “Indeed, the
‘terms of [the United States’] consent to be sued in any court define that court’s jurisdiction to
entertain the suit.’” Id. (alteration in original) (quoting United States v. Sherwood, 312 U.S. 584,
586 (1941)). “Moreover, a waiver of the [g]overnment’s sovereign immunity will be strictly
8 construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192
(1996). That the parties have not framed the dispute as one about the sovereign immunity of the
Council is of no moment. Like other jurisdictional concerns, “[w]hether the United States has
consented to be sued ‘. . . may be raised at any time, either by the parties or by the court sua
sponte.’” Brown v. Sec’y of the Army, 78 F.3d 645, 648 (D.C. Cir. 1996) (quoting Mellos v.
Brownell, 250 F.2d 35, 36 (D.C. Cir. 1957) (per curiam)).
Ordinarily, § 702 of the APA provides a waiver of the federal government’s sovereign
immunity when a plaintiff sues the federal government seeking, as Plaintiffs do here, “relief
other than money damages.” 5 U.S.C. § 702. But the provision specifically “refer[s] to a claim
against an ‘agency’ and hence waives immunity only when the defendant falls within that
category.” Trudeau v. FTC, 456 F.3d 178, 187 (D.C. Cir. 2006); see also Anderson v. Carter¸
802 F.3d 4, 8–9 (D.C. Cir. 2015) (finding that sovereign immunity barred the plaintiff’s APA
claims against the Secretary of Defense and subordinate officers in their official capacity because
they did not meet the APA’s definition of “agency”); Clark v. Library of Congress, 750 F.2d 89,
102 (D.C. Cir. 1984) (“Clark, however, may not take advantage of [the APA’s] broad waiver of
sovereign immunity since the Library of Congress is not an ‘agency’ as defined under the
[APA].”). The Court now turns to whether the Council is in fact an “agency,” such that the
APA’s waiver of sovereign immunity applies.
A. Relevant Case Law
For purposes of § 702, the APA defines “agency,” in relevant part, to mean “each
authority of the Government of the United States, whether or not it is within or subject to review
by another agency.” 5 U.S.C. § 701(b)(1). As the D.C. Circuit has recognized, that definition
“is not entirely clear.” Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir. 1971). But in Soucie,
the seminal case addressing the question, the Circuit concluded that the APA “confers agency
9 status on any administrative unit with substantial independent authority in the exercise of
specific functions.” Id. (emphasis added). In that case, the Circuit determined that the Office of
Science and Technology (OST) was an “agency” under the Freedom of Information Act (FOIA) 2
because OST engaged in the “independent function of evaluating federal programs,” including
by wielding the “investigatory power” of Congress. Id. at 1075 & n.27.
Since Soucie, the Circuit has repeatedly grappled with the contours of the “substantial
independent authority” standard. In Grumman Aircraft Engineering Corp. v. Renegotiation
Board, 482 F.2d 710, 715 (D.C. Cir. 1973), rev’d on other grounds, 421 U.S. 168 (1975), the
Circuit examined entities known as “Regional Boards,” which aided the federal government’s
Renegotiation Board in reviewing and renegotiating federal government contracts. The Circuit
concluded that these Regional Boards were “agencies” as defined in 5 U.S.C. § 551(1) after
determining that they had been “granted what Soucie termed ‘substantial independent
authority.’” Id. at 714–15. The Circuit noted that the Regional Boards had their own
investigating and negotiating personnel and that they negotiated directly with private contractors
before any involvement by the Renegotiation Board. Id. at 715. Indeed, it appears that in many
cases, the Renegotiation Board’s review of a recommendation by a Regional Board was merely
“perfunctory.” Id. at 713 & n.7. The Circuit also emphasized, critically, that the Regional
Boards were “empowered to make final decisions not even reviewable by the [Renegotiation]
Board”—in what were labeled “Class B” cases that did not meet a minimum contract amount.
2 FOIA incorporates the APA’s definition of “agency” in § 551, see 5 U.S.C. § 552(f), which is for all material purposes identical to the definition found in § 701(b)(1), and thus interpretations of the phrase “authority of the Government of the United States” have been applied interchangeably by courts in the FOIA and APA contexts. See McKinney v. Caldera, 141 F. Supp. 2d 25, 31–32 & n.13 (D.D.C. 2001), aff’d, 291 F.3d 851 (D.C. Cir. 2002); see also Dong v. Smithsonian Inst., 125 F.3d 877, 878–79 (D.C. Cir. 1997).
10 Id. at 715 & n.20.3 Lastly, the Circuit recognized that in crafting the Renegotiation Board’s
enabling legislation, Congress appeared to have assumed that the Regional Boards would
themselves be “agencies.” Id. at 716 (“The Board may delegate . . . any function, power, or
duty . . . to any agency . . . , including any such agency established by the Board.” (quoting 50
U.S.C. § 1217(d)). Based on these considerations, the Circuit concluded that the Regional
Boards qualified as “agencies” as defined in 5 U.S.C. § 551(1). Id.
In Washington Research Project, Inc. v. Department of Health, Education, and Welfare,
504 F.2d 238 (D.C. Cir. 1974), the Circuit, applying Soucie and Grumman, reached the opposite
conclusion. At issue were “initial review groups” (IRGs) established by the National Institute of
Mental Health (NIMH) to assist in the review of grant applications. Id. at 245–248. Contrasting
the IRGs from the entities examined in the prior cases, the Circuit determined that the IRGs did
not constitute “agencies” because they “confine[d] themselves to making recommendations.” Id.
at 247. In effect, they were “consultants.” Id. at 247–48. It did not matter that, in many cases,
the IRG recommendations were given only cursory review, so that they were “an often crucial
element in the approval process.” Id. at 248. Rather, according to the Circuit, “[t]he important
consideration [was] whether [the IRG] ha[d] any authority in law to make decisions.” Id. And
in that case that authority rested with NIMH and its subcomponent the National Advisory Mental
Health Council, not the IRGs. Id.
3 The Supreme Court reversed the D.C. Circuit’s decision in Grumman on separate grounds, declining to address the Circuit’s determination that the Regional Board qualified as an “agency” under 5 U.S.C. § 551(1). See Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 188 (1975). The Court did “note in passing,” however, that the Circuit’s conclusion that the Renegotiation Board’s “status as an agency stemmed from its power to issue ‘orders’ in Class B cases” found support in the applicable case law. Id. at 188 n.25.
11 In a later case addressing the Defense Nuclear Facilities Safety Board, an entity
associated with the Department of Energy, the Circuit determined that the Board qualified as an
“agency” under FOIA for several reasons. See Energy Research Found. v. Def. Nuclear
Facilities Safety Bd., 917 F.2d 581, 585 (D.C. Cir. 1990). As one of those grounds, the Circuit,
citing Soucie, concluded that the Board qualified as an “agency” because it did “considerably
more than merely offer advice” and “ha[d] at its disposal the full panoply of investigate powers
commonly held by other agencies of the government.” Id. at 584.
The Circuit revisited the issue in more depth in Dong v. Smithsonian Institute, 125 F.3d
877 (D.C. Cir. 1997). In that case, the Circuit determined that the Smithsonian did not constitute
an “agency” under the Privacy Act, which, like FOIA, incorporates the APA’s general definition.
See id. at 878–82. Examining that definition, the Circuit reasoned that “for an entity to be an
authority of the government it must exercise some governmental authority.” Id. at 881. The
“requirement of authority,” it explained, “derives both from the statutory language itself and
from legislative history characterizing the requisite type of authority”—namely, “final and
binding.” Id. (quoting H.R. Rep. No. 79-1980, at 19 (1946)). And it clarified further that simply
because “an organization makes decisions does not always mean that it is a government agency.”
Id. (quoting Pub. Citizen Health Research Grp. v. Dep’t of Health, Educ. & Welfare, 668 F.2d
537, 543 (D.C. Cir. 1981)). The entity must possess “substantial independent authority.” Id. at
882. To illustrate, it noted a district court opinion, summarily affirmed by the Circuit, finding
that the National Academy of Sciences was not an “agency” under § 551(1), even though it
possessed the authority “to veto the Environmental Protection Agency’s suspension of auto
emission standards,” because its primary role was advisory. Id. (citing Lombardo v. Handler,
397 F. Supp. 792, 794 (D.D.C. 1975), aff’d, 546 F.2d 1043 (D.C. Cir. 1976) (table decision)).
12 In determining whether the Council is an “agency” under the APA, these cases provide
instructive principles. They repeatedly emphasize that the touchstone of agency status is the
exercise of “substantial independent authority.” And while they present certain examples of such
authority, they “underscore the need to examine the structure, function, and mandate of [the
agency] itself.” McKinney, 141 F. Supp. 2d at 33. Indeed, the Circuit has recognized that given
“the myriad organizational arrangements for getting the business of the government
done[,] . . . [t]he unavoidable fact is that each new arrangement must be examined anew and in
its own context.” Wash. Research Project, 504 F.2d at 246. With that, the Court turns to address
the particular entity at issue.
B. Whether the Council Is an “Agency” for Purposes of 5 U.S.C. § 702
At its core, the Council is an advisory body. Congress established the Regional Fishery
Management Councils “to exercise sound judgment in the stewardship of fishery resources
through the preparation, monitoring, and revision of [fishery management] plans.” 16 U.S.C.
§ 1801(b)(5). But in pursuit of that aim, the Council’s primary functions are to “prepare and
submit to the Secretary” fishery management plans and later amendments, to hold public
hearings “to allow all interested persons an opportunity to be heard in the development of fishery
management plans,” and to conduct research and report its findings to the Service and the
Secretary. See id. § 1852(h). The Council has no authority to promulgate rules. Anglers
Conservation Network, 809 F.3d at 667 (citing Scallop Fishermen, 635 F.3d at 112 n.15).
Indeed, none of its proposed plans or regulations are effective until the Secretary has reviewed
them, conducted notice-and-comment rulemaking, and approved their contents. See 16 U.S.C.
§ 1854(a)–(b).
In that regard, the Council resembles the IRGs examined in Washington Research
Project, serving as an advisory body to the Secretary and the Service equipped to make
13 recommendations. See 504 F.2d at 248. To be sure, the Council is heavily involved in the
development of FMPs—much more so than it appears the IRGs were involved in decisions
whether to make grant awards. Indeed, that is by statutory design. See 16 U.S.C. § 1801(b)(5).
The Council, along with its regional peers, is provided considerable resources to conduct
research, issue reports, and develop proposals. See id. § 1852(f), (h). But the Council’s plans
and accompanying regulations still do not “achieve the dignity of an agency’s final decision”
until the Secretary reviews and adopts them. Wash. Research Project, 504 F.2d at 248. And
thus the Council does not “by law ha[ve] authority to take final and binding action affecting the
rights and obligations of individuals.” Dong, 125 F.3d at 881 (quoting James O. Freedman,
Administrative Procedure and the Control of Foreign Direct Investment, 119 U. Pa. L. Rev. 1, 9
(1970)); see also Grumman, 482 F.2d at 715 (noting, in finding that the Regional Boards were
“agencies,” that they were “empowered to make final decisions not even reviewable by the
[Renegotiation] Board”). That authority remains with the Secretary and, by delegation, the
Service. The Council, on the other hand, does not “exercise [substantial] governmental
authority” such that it is “an authority of the government.” Dong, 125 F.3d at 881 (emphasis
removed).4
The rest of the MSA only reinforces the advisory nature of the Council’s role. Not only
does the MSA reserve the authority to adopt FMPs for the Secretary, but matters of
implementation and enforcement are left to the Secretary as well. See 16 U.S.C. § 1855(d)
4 As part of the 2007 amendments to the MSA, Congress included the following finding: “A number of Fishery Management Councils have demonstrated significant progress in integrating ecosystem considerations in fisheries management using the existing authorities provided under this chapter.” 16 U.S.C. § 1801(a)(11). The Court does not read this statement to suggest that Congress considers the Councils to be a governmental “authority” as that term is used in 5 U.S.C. § 701(b)(1) and has been understood by courts in this Circuit.
14 (providing the Secretary authority to “carry out any [FMP] approved or prepared by him”); id.
§§ 1858–61 (reserving powers of investigation and enforcement for the Secretary). Indeed, it
appears that the MSA deliberately channels decision-making authority through the Secretary,
whose actions Congress expressly made subject to judicial review. See 16 U.S.C. § 1855(f); see
also id. § 1861(d) (granting federal district courts jurisdiction over “any case or controversy”
stemming from the Secretary’s enforcement of the MSA and its attendant regulations). 5
Particularly relevant here, the MSA’s judicial review provision for FMPs and any additional
implementing regulations provides solely for review of such regulations as “promulgated by the
Secretary.” Id. § 1855(f) (emphasis added). Defendants argue that this provision implicitly
precludes the actions Plaintiffs bring against the Council under the APA. See Defs.’ MTD at 15–
19. While that may be so, the Court views § 1855(f) as further evidence that the MSA does not
contemplate that the Council functions beyond the role of expert advisor. The critical action
when it comes to the adoption or amendment of FMPs—the action that Congress saw fit
specifically to subject to judicial review—is the approval and promulgation by the Secretary
after his own review for consistency with the existing plans, the MSA, and other applicable law.
The Court furthermore notes that it does not write on a blank slate. The one other court
that appears to have directly addressed the status of the MSA’s Fishery Management Councils as
“agencies” likewise concluded, while acknowledging that “the question [was] a close one,” that
5 Though § 1861(d) does not by its terms limit its grant of jurisdiction to enforcement actions, courts have recognized that the provision should be read only to refer to cases arising from enforcement actions. See, e.g., Kramer v. Mosbacher, 878 F.2d 134, 136 (4th Cir. 1989); Delta Commercial Fisheries Ass’n v. Gulf of Mex. Fishery Mgmt. Council, 259 F. Supp. 2d 511, 516 (E.D. La. 2003), aff’d, 364 F.3d 269 (5th Cir. 2004); see also id. (noting that, regardless, the definition of “provisions of this chapter,” 16 U.S.C. § 1861(j), would limit § 1861(d)’s reach to actions regarding regulations and permits, both of which are responsibilities reserved for the Secretary).
15 they did not possess the requisite substantial “independent authority,” and relied heavily on
precedent from this Circuit in so concluding. See J.H. Miles & Co., Inc. v. Brown, 910
F. Supp. 1138, 1157–59 (E.D. Va. 1995). In fact, the D.C. Circuit in Dong specifically cited J.H.
Miles as an example of a court holding that an entity could not “be an authority of the
government” because it did not “exercise some governmental authority.” 125 F.3d at 881.
Several other courts have also accepted that the MSA’s Fishery Management Councils are not
“agencies” under the APA, though they provided no detailed reasoning. See Scallop Fishermen,
635 F.3d at 112 n.15 (“The fishermen concede—as they must—that the [New England Council]
is not itself an ‘agency’ . . . under the APA.”);6 Anglers Conservation Network v. Pritzker, 70
F. Supp. 3d 427, 437 (D.D.C. 2014) (“An action by the Mid-Atlantic Council does not qualify as
an ‘agency action’ under the APA because, as Plaintiffs appear to concede, a fishery
management council is not itself an ‘agency’ subject to judicial review.” (citation and quotation
marks omitted)). While the Court does not place great weight on these cases in reaching its
conclusion here, it finds the courts’ assuredness telling.
The Court also is mindful of its obligation to strictly construe waivers of sovereign
immunity in favor of the federal government. Lane, 518 U.S. at 192. The Court would arrive at
the same conclusion—that the Council is not an “agency” as defined in 5 U.S.C. § 701 and
therefore that the waiver of sovereign immunity in § 702 does not apply here—regardless of that
obligation, but it underscores that the MSA should not be read to confer agency status on the
Council such that it is subject to suit. See Anderson, 802 F.3d at 9 (citing this principle in
6 The D.C. Circuit cited this footnote in Anglers Conservation Network for the proposition that the Councils have “no authority to promulgate federal rules.” 809 F.3d at 667.
16 refusing to adopt the plaintiff’s liberal interpretation of the scope of § 701’s definition of
“agency”).
In arguing that the Council does qualify as an “agency” under § 702, Plaintiffs appear to
overstate the Council’s authority under the MSA. They repeatedly contend that many of the
Council’s decisions in developing FMPs are “unreviewable,” though they point to no provision
in the MSA to support that assertion. See ECF No. 167 (“Pls.’ Opp’n”) at 21–23. Rather, they
argue that because the Council may decide what to include in its own proposed plans, choices
the Secretary certainly does not directly control, those decisions are necessarily unreviewable.
To be sure, § 1854(a) does not appear to permit the Secretary to modify the Council’s proposals
as he sees fit. But the proposed plans still have no binding effect until the Secretary has
independently reviewed them, ensured that they are consistent with the objects of the MSA and
that they comply with any applicable law, and adopted them after notice and comment. See
Flaherty I, 850 F. Supp. 2d at 54 (“While . . . it is the Council’s role to name the species to be
managed ‘in the first instance,’ it is [the Service’s] role, in the second instance, to ensure that the
Council has done its job properly under the MSA and any other applicable law.”).
Moreover, Plaintiffs appear to operate on the assumption that the Secretary’s ability to
review those proposals is somehow circumscribed and limited to something like an “abuse-of-
discretion” review. See Pls.’ Opp’n at 20. Nothing in § 1854 or elsewhere in the MSA
prescribes as much. If the Secretary determines that the Council’s proposal does not meet the
requirements of the Act, the Secretary can, indeed must, disapprove of their proposal, which will
continue to have no binding effect. See 16 U.S.C. § 1854(a); Flaherty I, 850 F. Supp. 2d at 54
(“While [the Service] may defer to the Council on policy choices, the [MSA] plainly gives [the
Service] the final responsibility for ensuring that any FMP is consistent with the MSA’s National
17 Standards, and ‘the overall objectives’ of the Act.” (emphasis added) (quoting N.C. Fisheries
Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 71–72 (D.D.C. 2007))). 7
Plaintiffs also point to the Circuit’s acknowledgment of the power to “investigate” as a
well-established “authority” of the government, contending that Congress conferred such powers
on the Council. See Pls.’ Opp’n at 20–21. But the mandate to conduct research and present
findings, as the Council must do under the MSA, is a far cry from the “power of investigation”
contemplated by the Circuit in Soucie, 448 F.2d at 1075 n.27 (citing McCrain v. Daugherty, 273
U.S. 135 (1927), which affirmed the United States Senate’s powers to subpoena testimony from
the Attorney General), and in Energy Research Foundation, 917 F.2d at 584–85 (discussing the
Safety Board’s “full panoply of investigative powers commonly held by other agencies of
government” at its disposal to investigate the practices of the Department of Energy).
Plaintiffs do point to one circumstance in which the Council wields a degree of regulatory
authority. They point out that § 1854(h) provides that the Secretary may not “repeal or revoke”
an FMP unless the relevant Fishery Management Council approves of the repeal or revocation by
a three-quarters majority vote. Given the Secretary’s general duty to carry out the MSA’s
7 The Court recognizes that in J.H. Miles, the court did in fact characterize the Secretary’s review of the Council as “analogous to an ‘abuse of discretion’ or ‘clear error’ standard.” J.H. Miles, 910 F. Supp. at 1158–59. That characterization, however, was based solely on a single regulation, applicable only to a particular fishery and Fishery Management Council, stating that the Service can only modify catch quotas proposed by the Mid-Atlantic Fishery Management Council (MAFMC) “if he/she can demonstrate that the MAFMC’s recommendations violate the national standards of the [MSA] or the objectives of the Atlantic Surfclam and Ocean Quahog FMP or other applicable law.” 50 C.F.R. § 648.72(a)(2). As an initial matter, it is not even clear whether that language should be read to require a more restrictive review than that prescribed by Congress generally for Council proposals in 16 U.S.C. § 1854(a)–(b). More importantly, the Court, in determining whether Fishery Management Councils constitute “agencies” under the APA, does not afford much weight to a single regulation, particularly in light of statutory indications to the contrary in the MSA. And notably, even with that understanding, the court in J.H. Miles still concluded that the Fishery Management Councils were not agencies under the APA.
18 objectives, the Court struggles to see how the ability to repeal an FMP, provided it were
necessary under the Act, differs in practice from the ability to amend FMPs in pursuit of those
same objectives. More importantly, however, the Council’s ability to prevent one type of action
by the Secretary does not, on its own, confer agency status on it, particularly given the Council’s
powerlessness otherwise to take any binding affirmative action. See Dong, 125 F.3d at 882
(citing Lombardo, 397 F. Supp. at 794). That limited veto power, upon consideration of the
Council’s otherwise non-binding activities and function within the broader scheme of the MSA,
is insufficient for the Court to conclude that the Council possesses the degree of “substantial
independent authority” necessary to elevate the Council to the status of “agency.”
Ultimately, the Court, echoing the Circuit, recognizes that the APA’s definition of
“agency” does not lend itself to bright-line rules. But that has not prevented the Circuit from
highlighting some tell-tale features pertinent here. Given those instructions, and upon
consideration of the structure and function of the Council within the context of the MSA, the
Court does not find that the Council exercises “substantial independent authority” such that it
qualifies as an “agency” for purposes of 5 U.S.C. § 702.
Conclusion
For the above reasons, the Court concludes that Congress, through the APA, has not
waived the federal government’s sovereign immunity as applied to the Council. Thus, the Court
lacks subject-matter jurisdiction over Plaintiffs’ claims against it. As a result, Defendants’
Motion to Dismiss Counts II and III, ECF No. 164, and Defendant-Intervenor’s Motion to
19 Dismiss in Part, ECF No. 166, will be granted, and the Council will be dismissed as a Defendant.
A separate order will issue.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge
Date: March 9, 2019