Goethel v. US Dept of Commerce , 854 F.3d 106 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-2103
DAVID GOETHEL, XIII NORTHEAST FISHERY SECTOR, INC.,
Plaintiffs, Appellants,
v.
U.S. DEPARTMENT OF COMMERCE; WILBUR ROSS, in his official
capacity as Secretary, U.S. Department of Commerce; BENJAMIN
FRIEDMAN, in his official capacity as Acting Administrator,
National Oceanic and Atmospheric Administration; NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION; SAMUEL D. RAUCH III, in
his official capacity as Assistant Administrator for Fisheries
(Acting) for the National Marine Fisheries Service; NATIONAL
MARINE FISHERIES SERVICE,*
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph Laplante, Chief U.S. District Judge]
* Pursuant to Fed. R. App. P. 43(c)(2), the following
substitutions have been made among the appellees: Wilbur Ross,
U.S. Secretary of Commerce, for former Secretary Penny Pritzker;
Benjamin Friedman, Acting Administrator, National Oceanic and
Atmospheric Administration, for former Administrator Kathryn
Sullivan; and Samuel D. Rauch III, Assistant Administrator for
Fisheries (Acting) for the National Marine Fisheries Service, for
former Assistant Administrator Eileen Sobeck.
Before
Kayatta, Circuit Judge,
Souter, Associate Justice,**
and Stahl, Circuit Judge.
Julie A. Smith, with whom Eric R. Bolinder, Ryan P. Mulvey,
Cause of Action Institute, and James C. Wheat, Pierre A. Chabot,
and Wadleigh, Starr & Peters, P.L.L.C., were on brief for
appellants.
Thekla Hansen-Young, with whom John C. Cruden, Assistant
Attorney General, Andrew C. Mergen, Robert Lundman, Alison C.
Finnegan, Andrea Gelatt, Environment & Natural Resources Division,
U.S. Department of Justice, and Mitch MacDonald, Gene Martin,
National Oceanic and Atmospheric Administration, Office of General
Counsel, Northeast Section, were on brief for appellees.
April 14, 2017
** Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
STAHL, Circuit Judge. This case arrives on the court's
deck from regulations promulgated by the National Marine Fisheries
Service (NMFS), which require that on certain commercial fishing
trips, fishermen must be accompanied on their vessels by at-sea
monitors to ensure compliance with catch quotas, and that the
industry must foot the bill for these unwelcome guests. David
Goethel, a New Hampshire fisherman joined in these proceedings by
a group of commercial fishermen subject to this "industry funding"
requirement, brought suit in federal district court in New
Hampshire, claiming that the industry funding requirement violates
several pertinent statutes and is also unconstitutional.
The district court granted summary judgment in favor of
the government, reasoning that Goethel's suit was not filed within
the applicable statute of limitations and that Goethel's statutory
and constitutional challenges would have failed even if timely.
On appeal, Goethel renews the bulk of his constitutional and
statutory arguments, and urges this court to find that his suit
was not time-barred. Because we agree with the district court
that Goethel's suit was not timely, we AFFIRM the grant of summary
judgment in favor of the government, and do not reach the question
of whether the industry funding requirement contravenes the edicts
of the relevant statutes or the Constitution.
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I. Facts & Background
A. The Regulations
The Magnuson-Stevens Fishery Conservation and Management
Act (MSA), 16 U.S.C. §§ 1801-1884, was passed by Congress in 1976
in "[r]espon[se] to depletion of the nation's fish stocks due to
overfishing." Associated Fisheries of Me., Inc. v. Daley, 127
F.3d 104, 107 (1st Cir. 1997). The stated goals of the MSA were,
inter alia, to "conserve and manage the fishery resources found
off the coasts of the United States" and "to promote domestic
commercial and recreational fishing under sound conservation and
management principles." 16 U.S.C. § 1801(b)(1),(3). The MSA
tasked the Department of Commerce1 with regulating commercial
fishing throughout the Exclusive Economic Zone of the United
States, which extends 200 nautical miles from the seaward boundary
of each coastal state. Id. § 1802(11); see also Pres. Proc. No.
5030, Exclusive Economic Zone of the United States, 48 Fed. Reg.
10,605 (Mar. 10, 1983) (defining the geographic scope of the
1 The Department of Commerce in turn delegated this role to
the National Oceanic and Atmospheric Administration ("NOAA"),
which regulates the fisheries through its sub-agency, the National
Marine Fisheries Service ("NMFS"). For simplicity's sake, these
entities (all of which are named as defendants-appellees along
with their respective chiefs in their official capacities) are
referred to throughout this opinion as the "government."
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Exclusive Economic Zone of the United States and the sovereign
rights exercised therein under international law).
Pursuant to the MSA, eight regional Fishery Management
Councils (FMCs) were established and charged with preparing, and,
if circumstances warranted, amending, regional Fishery Management
Plans (FMPs), which set certain standards for the fishing industry
within the given FMC's regional purview. The MSA was amended in
2007 to include a requirement that each FMP include "measures to
ensure accountability" with respect to catch limits. See 16 U.S.C.
§ 1853(a)(15). In an effort to effectuate this requirement, the
regional FMP at issue in this case, the Northeast Multispecies
FMP, was amended by the New England Council (the relevant FMC) to
include a requirement that commercial fishermen within the purview
of the Northeast Multispecies FMP must, on occasion, be accompanied
by at-sea monitors (ASMs) who would collect certain data related
to the particular fishing trip and the vessel's catch. See
generally Northeast (NE) Multispecies Fishery, Amendment 16, 75
Fed. Reg. 18,262 (Apr. 9, 2010). The amendment that added this
monitoring requirement was known as "Amendment 16," and was
published on April 9, 2010, following a period of public comment.
Goethel was a council member at the time of the enactment of
Amendment 16 and voted against the proposal.
The at-sea monitors are human employees of private,
third-party contractors who accompany the fishermen on board their
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vessels during certain fishing trips, observe their activities to
ensure compliance with fishing limits, and file reports upon their
return to port. While catch quotas had previously been imposed,
and overall catch hauls recorded upon a fisherman's return to port,
at-sea monitors were intended to verify the specific geographic
areas in which a boat fished, and also to monitor fish discards at
sea. See 75 Fed. Reg. at 18,342. While not every fishing journey
is monitored, costs for the monitors when a particular fishing
trip is selected for such monitoring are estimated at $700-$800
per trip. See Goethel v. Pritzker, No. 15-CV-497-JL, 2016 WL
4076831, at *1 (D.N.H. July 29, 2016). Application of the at-sea
monitoring program depends on whether a particular fishmerman is
a member of a "sector," an association of "vessels that have
voluntarily signed a contract and agree[d] to certain fishing
restrictions," most notably catch restrictions and management
requirements compiled in a sector operations plan. See Lovgren v.
Locke, 701 F.3d 5, 15-16 (1st Cir. 2012) (citing Northeast (NE)
Multispecies Fishery, Amendment 13, 69 Fed. Reg. 22,906, 22,945
(Apr. 27, 2004)). The sector program is voluntary and those
vessels that choose not to join a sector are still able to fish
from the "common pool" allocation of fish under a separate program
that tracks number of days spent at sea, rather than using catch
limits, and that does not require at-sea monitoring. See generally
50 C.F.R. § 648.82 (discussing days-at-sea restrictions for
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members of the common pool). The relevant sectors in this case
are comprised of those fishing for groundfish.2
As is the case with many government regulations,
Amendment 16 requires compliance without offering to pay or
reimburse the regulated entity for the cost of compliance. To the
contrary, Amendment 16 itself requires that the sector fishermen
bear the costs of the at-sea monitors. See Northeast (NE)
Multispecies Fisheries, Amendment 16, 75 Fed. Reg. 18,262, 18,342
(April 9, 2010) ("Beginning in fishing year 2010, a sector must
develop, implement, and pay for, to the extent not funded by NMFS,
an independent third-party dockside/roving and at-sea/electronic
monitoring program that is satisfactory to, and approved by, NMFS
. . . ."). Notwithstanding this clear requirement, the government
paid the ASM costs throughout the first several years of the
program's existence. See, e.g., Standardized Bycatch Reporting
Methodology Omnibus Amendment, 80 Fed. Reg. 37,182, 37,185 (June
30, 2015) ("To date, we have been able to provide sufficient
funding for the groundfish sector at-sea monitoring program such
that industry did not have to pay for at-sea monitoring.").
However, a 2011 ruling by the D.C. Circuit required NMFS
to fund a separate reporting program, see Oceana v. Locke, 670
2
"Groundfish" is a generic term for various bottom-dwelling
fish species including, most notably, cod, haddock, halibut, and
flounder. Goethel, 2016 WL 4076831, at *2 n.4.
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F.3d 1238 (D.C. Cir. 2011), which in turn depleted the funds that
the agency had available for the at-sea monitoring program in the
Northeast. Beginning in 2015, responding to funding shortfalls
caused by the requirements of the D.C. Circuit ruling, NMFS took
a series of steps to inform the sectors that it could no longer
fund the at-sea monitoring costs, and the sectors themselves and
their constituent fishermen would soon be on the hook for these
costs, as envisioned by Amendment 16. Because of the importance
of the various dates in 2015 for purposes of the statute of
limitations, we explain the relevant communications between the
agency and the regulated sectors below.
• March 9, 2015: NMFS published a Proposed Rule to
approve seventeen sector operations plans for fishing
years 2015 and 2016. While noting that the agency
had been able to pay the costs of ASM coverage during
the years 2012 to 2014, the agency explained that this
would change: "Due to funding changes . . . we expect
that sector vessels will be responsible for paying
at-sea costs associated with the ASM program before
the end of the 2015 fishing year." Proposed Rule,
2015 and 2016 Sector Operations Plans for Northeast
Multispecies Fishery, 80 Fed. Reg. 12,380, 12,385
(Mar. 9, 2015).
• May 1, 2015: NMFS published a final rule that
reiterated the same language from the March 9th
proposed rule, namely, that the agency "expect[ed]
that sector vessels will be responsible for paying
the at-sea portion of costs associated with the sector
ASM program before the end of the 2015 fishing year."
Final Rule, 2015 and 2016 Sector Operations Plans for
Northeast Multispecies Fishery, 80 Fed. Reg. 25,143,
25,148 (May 1, 2015). The notice also added that
"funding for our portion of ASM costs is expected to
expire before the end of the 2015 fishing year" but
"we have begun working on an implementation plan to
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help ensure a seamless transition when the industry
assumes responsibility for at-sea costs in 2015." Id.
at 25,149.
• November 10, 2015: NOAA Northeast Fisheries Science
Center announced that "federal funds in the major at-
sea monitoring contracts for northeast groundfish
sectors will be expended by December 31, 2015," and
that "[t]ransition of monitor sea-day costs to
industry will therefore be effective January 1, 2016."
This announcement was sent to the relevant sectors in
an email, but was not published in the Federal
Register. The email, titled "Update: Federal Funding
for At-Sea Monitoring Ends December 31, 2015,” stated,
in pertinent part:
Based on the data we have on actual fishing
effort, we have determined that federal
funds in the major at-sea monitoring
contracts for northeast groundfish sectors
will be expended by December 31, 2015.
Transition of monitor sea-day costs to
industry will therefore be effective
January 1, 2016.
Although the November 10th email notification purported
to establish a date certain when industry funding would kick in
(January 1, 2016), the government was ultimately able to continue
paying ASM costs through mid-February 2016. Additionally, on June
23, 2016, a NOAA email notification informed the Northeast Sector
that the agency would fully fund the shore-based monitoring program
and would "use remaining funds to offset some of industry's costs
of the groundfish at-sea monitoring program."
B. The Parties
Plaintiff-appellant David Goethel is a New Hampshire-
based commercial fishermen and sector member who is subject to the
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various provisions of the Northeast Multispecies FMP, including
the industry funding requirement for the at-sea monitoring
program. Plaintiff-appellant XIII Northeast Fishery Sector, Inc.
("Sector 13"), one of the approved groundfish sectors, is a
corporation organized under Section 501(c)(5) of the U.S. Internal
Revenue Code, and consists of thirty-two fishermen and twenty
active boats. The members of Sector 13 are also subject to the
Northeast Multispecies FMP, including the at-sea monitoring
program. Goethel and Sector 13 presented evidence that the
industry funding requirement for the at-sea monitoring program
would impose draconian costs on the Sector and its members,
including citing a NOAA report which concluded that "nearly 60% of
the fleet could see negative returns to owner when full 2015 ASM
costs are factored in." Plaintiffs-appellants are concerned that
the industry funding requirement will essentially render the
groundfish industry no longer viable from a commercial standpoint.
The defendants-appellees are the U.S. Department of
Commerce, the NOAA, and the NMFS, as well as their respective
directors in their official capacities.
C. The Lawsuit
Goethel filed his suit on December 9, 2015. As discussed
in greater detail below, Goethel argues that because his complaint
was filed within thirty days of the November 10th email
notification, it was therefore timely under the MSA's thirty-day
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statute of limitations. In his complaint and subsequent briefing
to the district court, Goethel advanced a multitude of alleged
statutory and constitutional violations, falling into one of three
categories: an allegation that the industry funding requirement
is unlawful, a challenge to the at-sea monitoring requirement in
general, and a facial attack on the entire Magnuson-Stevens
framework. We briefly describe these claims below.
First, Goethel alleged that the industry funding
requirement was unlawful because the agency acted in excess of its
statutory authority under the MSA and failed to follow proper
procedures, resulting in agency action that was arbitrary,
capricious, and an abuse of discretion, in violation of the
requirements of the Administrative Procedure Act (APA), 5 U.S.C.
§ 706(2)(A).3 In addition to alleging a violation of the APA,
Goethel cast his net even further, alleging that the industry
funding requirement was an improper tax in violation of the
Appropriations Clause, U.S. Const. art. I, § 9, cl. 7, the Anti-
Deficiency Act (ADA)4, 31 U.S.C. § 1341, and the Miscellaneous
3 With some exceptions not relevant to the present case, the
MSA generally incorporates the APA's judicial review provisions.
See 16 U.S.C. § 1855(f)(1)(B).
4 In relevant part, the ADA prohibits federal officers from
"mak[ing] or authoriz[ing] an expenditure or obligation exceeding
an amount available in an appropriation or fund for the expenditure
or obligation" and from "involv[ing] [the United States] in a
contract or obligation for the payment of money before an
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Receipts Act (MRS)5, 31 U.S.C. § 3302, and also constituted the
imposition of improper user fees in violation of the Independent
Offices Appropriations Act (IOAA)6, 31 U.S.C. § 9701. He also
alleged that the industry funding requirement violated the
interstate commerce clause, U.S. Const. art. I, § 8, cl. 3, by
requiring that the fishermen enter the market for at-sea monitors
and purchase those services. Finally, he alleged two procedural
violations: that the agency failed to prepare a Regulatory
Flexibility Analysis, as required by the Regulatory Flexibility
Act (RFA), 5 U.S.C. §§ 601-612, and that it failed to assess the
impact of its regulatory actions on the environment, as required
by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321–
4370e. All of these arguments are preserved on appeal, with the
exception of the alleged NEPA violation, which is not raised in
Goethel's opening brief.
Second, Goethel challenged the at-sea monitoring program
itself (as distinct from the requirement that the sectors pay for
appropriation is made unless authorized by law." 31 U.S.C.
§ 1341(a)(1)(A)-(B).
5 This statute provides that "an official or agent of the
Government receiving money for the Government from any source shall
deposit the money in the Treasury as soon as practicable without
deduction for any charge or claim." 31 U.S.C. § 3302(b).
6 The IOAA permits an agency to "prescribe regulations
establishing the charge for a service or thing of value provided
by the agency," 31 U.S.C. § 9701(b), in effect recouping fees from
those who receive services provided by the agency.
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it) on constitutional grounds. The sheer volume of constitutional
claims that Goethel made initially suggests that he was, in a
manner of speaking, on a fishing expedition. Specifically, he
alleged that the at-sea monitoring requirement violates the First
Amendment by "compelling fishermen to join sectors"7; violates the
Port Preference Clause8 by discriminating between the various
States, leading fishing vessels to prefer one state's port over
another; and violates the Fourth Amendment's prohibition on
unreasonable searches and seizures. Not content to leave any part
of the kitchen sink unused, Goethel also alleged that the at-sea
monitoring program violates the Third Amendment's prohibition on
the quartering of soldiers during peacetime because fishermen were
compelled to accommodate federally-mandated monitors on multi-day
fishing voyages.9 Of these arguments, only the Fourth Amendment
claim is preserved in this appeal.
7 This argument was abandoned by the plaintiffs during an
early phase of the proceedings below, was not addressed by the
district court in its opinion, and is not raised on appeal.
8 See U.S. Const. art. I, § 9, cl. 6 ("No Preference shall be
given by any Regulation of Commerce or Revenue to the Ports of one
State over those of another; nor shall Vessels bound to, or from,
one State, be obliged to enter, clear, or pay Duties in another.").
Goethel likewise abandoned this argument prior to summary
judgment, and does not raise it on appeal.
9 See U.S. Const. Amend. III ("No Soldier shall, in time of
peace be quartered in any house, without the consent of the Owner,
nor in time of war, but in a manner to be prescribed by law.").
The Third Amendment was a response to the Quartering Acts of 1765
and 1774, in which Parliament authorized British military
commanders to requisition private homes as barracks, see Engblom
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Third, Goethel alleged that the entire MSA regulatory
framework was unconstitutional. First, he alleged that the
regional FMCs are improperly constituted, in violation of the
Appointments Clause, U.S. Const. art. II, § 2, cl. 2, because
members of the councils are "inferior officers" whose appointments
could thus only be vested "in the President alone, in the Courts
of Law, or in the Heads of Departments." Goethel argues that
because the governors of the various coastal states are involved
in nominating individuals to the councils, and because state
executive officials are not among the permissible entities in which
Congress can vest the appointment power for inferior officers, the
councils are constitutionally infirm and actions taken by those
councils, including the Northeast Multispecies FMP, are void.
Second, Goethel argues that the MSA conscripts state officers by
requiring that they participate in the councils, in turn violating
the Tenth Amendment anti-commandeering doctrine. See Printz v.
United States, 521 U.S. 898, 935 (1997) ("The Federal Government
v. Carey, 677 F.2d 957, 967 (2d Cir. 1982) (Kaufman, J., concurring
in part and dissenting in part), and its application to private
contractors engaged in on-board monitoring of the fishing industry
is a dubious proposition to say the least. However, as with the
Port Preference Clause and First Amendment claims, the plaintiffs
conceded their Third Amendment argument before summary judgment,
thus depriving this court of the rare opportunity to opine on the
scope and application of the Third Amendment. See Goethel, 2016
WL 4076831, at *9 n.13 ("Earlier in this litigation, plaintiffs
also argued that industry funding of ASM also violated the Third
Amendment's prohibition against quartering of soldiers. They no
longer advance that claim.").
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may neither issue directives requiring the States to address
particular problems, nor command the States' officers, or those of
their political subdivisions, to administer or enforce a federal
regulatory program."). The alleged violations of the Appointments
Clause and the Tenth Amendment are preserved in this appeal.
D. The District Court Ruling
After the parties cross-moved for summary judgment, the
district court, in an order dated July 29, 2016, rejected Goethel's
various challenges and granted summary judgment in favor of the
government. First, the court found that the claims were not timely
because "the plaintiffs [sic] 30–day window to challenge the
industry funding component of ASM closed, at the latest, in June
2015, well before this suit was filed." Goethel, 2016 WL 4076831,
at *4. The district court rejected Goethel's argument that the
November 10th email notification was a separately reviewable
"action" under the MSA, but also declined the government's
invitation to find that the statute of limitations began to run in
2012 when the regulations implementing Amendment 16 took effect,
which would have meant Goethel's claims were time-barred by a
matter of years. See id. at *3-4.
Second, the court, after concluding that Goethel's suit
was time-barred, proceeded to analyze Goethel's statutory and
constitutional claims, and found that they would have failed on
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the merits even if his suit had been filed within the MSA's thirty-
day statute of limitations.
This timely appeal followed.
II. Analysis
The district court determined that Goethel's complaint
was barred by the MSA's statute of limitations, a finding that we
review de novo. See Santana-Castro v. Toledo-Dávila, 579 F.3d
109, 113 (1st Cir. 2009). The MSA includes provisions that govern
judicial review. Specifically, parties may challenge "regulations
promulgated by" NMFS, 16 U.S.C. § 1855(f)(1), and they may also
seek review of "actions that are taken by the Secretary under
regulations which implement a fishery management plan, including
but not limited to actions that establish the date of closure of
a fishery to commercial or recreational fishing," id.§ 1855(f)(2). Furthermore, as relevant (and ultimately
dispositive) to this case, judicial review is only available if a
complaint "is filed within 30 days after the date on which the
regulations are promulgated or the action is published in the
Federal Register, as applicable." Id. § 1855(f)(1).
As an initial matter, we address an argument that Goethel
spends much time advancing in both his opening and reply briefs:
that he is entitled to pre-enforcement review under the APA, in
lieu of violating the statute and then bringing his statutory and
constitutional arguments as a defense to an enforcement action.
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The thirty-day statute of limitations embodied in the MSA, Goethel
argues, does not apply to pre-enforcement review. Not so. Of
course pre-enforcement review is available as a general matter
under the MSA, but, as the district court noted below, "plaintiffs
cite no authority which permits the court to waive the statute of
limitations applicable to pre-enforcement review" of agency action
under the MSA. Goethel, 2016 WL 4076831, at *4 n.4.
On appeal, Goethel renews this same argument, but fails
to cite any authority for the proposition that the thirty-day
statute of limitations in the MSA can be deep-sixed simply by the
fact that the party seeking judicial review is making a pre-
enforcement challenge to the statute in question. Indeed, the
courts that have encountered this question appear to have uniformly
concluded that the thirty-day statute of limitations cannot be
sidestepped when a party is challenging a regulation promulgated
pursuant to NMFS authority under the MSA. See, e.g., Turtle Island
Restoration Network v. U.S. Dep't of Commerce, 438 F.3d 937, 939
(9th Cir. 2006) (concluding that although the appellant's claims
were "framed . . . in terms of violations of the APA [and
environmental statutes]," they were "in actuality . . .
challenge[s] to the reopening of the [swordfish] Fishery" and thus
subject to the MSA's thirty-day statute of limitations); N.C.
Fisheries Ass'n, Inc. v. Evans, 172 F. Supp. 2d 792, 798–99 (E.D.
Va. 2001) (holding that challenges to regulations arising from an
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FMP amendment must be filed within the thirty-day statute of
limitations period from the promulgation of the amendment itself);
F/V Robert Michael, Inc. v. Kantor, 961 F. Supp. 11, 15 (D. Me.
1997) (concluding that lobstermens' challenge to the Department of
Commerce's denial of permits, on the grounds that such a denial
violated the MSA, was time-barred because "[p]laintiffs' quarrel
lies with the regulation itself" and that regulation had been
promulgated long before the plaintiffs sought review); Stinson
Canning Co. v. Mosbacher, 731 F. Supp. 32, 34–35 (D. Me. 1990)
("Plainly, Congress intended pre-enforcement review since it
provided that a petition for such review must be filed thirty
days from promulgation."). We agree with these cases and hold
that Goethel's pre-enforcement challenge only can proceed if it
was filed within thirty days of the "action" in question as
required by § 1855(f)(1).
Goethel's case, therefore, hinges on whether the
November 10th email is a separately reviewable "action" for
purposes of the thirty-day statute of limitations, since any of
the other pertinent dates -- the 2010 promulgation of Amendment 16
which included by its own terms a requirement of industry funding,
and the March 9th and May 1st, 2015, proposed and final rules
announcing the expected exhaustion of government contributions to
the at-sea monitoring program -- would fall well outside the
thirty-day window. Goethel argues that it was on November 10th,
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for the first time, that the government established a "date
certain" when industry funding would finally take effect, and
therefore this date should be treated as the relevant "action."
In support of this argument, he cites to Bennett v.
Spear, 520 U.S. 154 (1997), where the Supreme Court explained that
agency actions are reviewable under Section 704 of the APA when
they (1) "mark the 'consummation' of the agency's decision-making
process" and (2) are events "by which 'rights or obligations have
been determined,' or from which 'legal consequences will flow.'"
Id. at 177-78. Here, Goethel argues, the November 10th date was
both the "consummation of the agency's decision-making process" by
setting a date on which money would no longer be expended by the
agency, and also when "obligations" had been "determined," namely
who would pay the monitoring costs. Goethel also argued to the
district court, and argues again on appeal, that prior to having
a date certain on which industry funding actually would kick in,
a potential suit would have been dismissed as unripe. See Goethel,
2016 WL 4076831, at *4 n.6 (rejecting Goethel's ripeness argument
as "necessarily speculative," but also observing that it was
"inconceivable that a suit filed within 30 days of the Rule's
publication in May 2016 [sic] would have been found unripe").
We are not convinced by Goethel's argument. First, the
language of § 1855(f) itself requires that for judicial review to
be available, a complaint must be "filed within 30 days after the
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date on which the regulations are promulgated or the action is
published in the Federal Register, as applicable." 16 U.S.C.
§ 1855(f)(1) (emphasis added). Goethel does not argue that the
November 10th email is a stand-alone "regulation," which, although
not defined in the MSA, generally "refers to legally binding
obligations placed upon a council and/or the agency which have the
force and effect of law and, as such, are analogous to substantive
rules issued by an administrative agency which are subject to APA
review." Tutein v. Daley, 43 F. Supp. 2d 113, 121 (D. Mass. 1999)
(citing Chrysler Corp. v. Brown, 441 U.S. 281, 301–302 (1979)).
Nor was the November 10th email published in the Federal Register.
Second, to the extent that the language of the statute
allowing for review within thirty days of the time when "the action
is published in the Federal Register, as applicable," envisions a
category of "actions" for which publication is not applicable,10
10 In briefing and at oral argument, Goethel emphasized that
insulating all non-published agency actions from review might
create incentives for agencies to announce changes in particular
regulatory programs that do shift certain legal obligations for
regulated parties, and avoid legal challenges by refraining from
publishing such decisions. While documents "having general
applicability and legal effect" are generally "required to be filed
for public inspection with the Office of the Federal Register and
published in the Federal Register," 1 C.F.R. § 5.2(c), we do share
Goethel's concern that a bright-line rule requiring publication in
order for judicial review to be available under the MSA might
preclude judicial review in cases where an unpublished action taken
by an agency does, in fact, lead to a change in the legal position
of regulated parties. Because we find that NOAA's November 10th
email had no such effect, we save for a later day whether, under
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we disagree that the November 10th email would qualify. Agency
"action" for purposes of administrative law generally "includes
the whole or a part of an agency rule, order, license, sanction,
relief, or the equivalent or denial thereof, or failure to act."
5 U.S.C. § 551(13). Goethel's argument, that the email
notification was the equivalent of an agency "order," clearly
fails, as the APA defines an order as resulting from agency
adjudication, see id. § 551(7), and there is no suggestion that
the November 10th email was the product of an agency adjudication.
Rather, the email was one of several updates sent to regulated
parties throughout 2015, a routine effort to keep the sectors
abreast of developments pursuant to a final rule which had been
published in May of 2015.11 In short, the November 10th
notification does not have the significance that Goethel seeks to
certain circumstances, unpublished agency actions could still be
subject to judicial review under the MSA.
11While we need not reach this issue given that the November
10th email does not meet the basic requirements for reviewable
agency "action," we think, as a factual matter, that the sectors'
obligation to pay was certainly consummated, at the latest, with
publication of the May 2015 final rule. Therefore, Bennett v.
Spear, which observed that for agency action to be "final," it
must "mark the 'consummation' of the agency's decision-making
process," 520 U.S. at 178 (internal citation omitted), is of no
help to Goethel in this case because the November 10th email had
no such effect.
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assign to it, and we conclude that it is not a separately
reviewable agency "action" for purposes of § 1855(f)(1).12
We agree with the district court that the most recent
"action" that could have plausibly been challenged was the May
2015 final rule, and for that reason we agree with the district
court that the "plaintiffs [sic] 30–day window to challenge the
industry funding component of ASM closed, at the latest, in June
2015, well before this suit was filed." Goethel, 2016 WL 4076831,
at *4. Therefore, the suit is time-barred.
III. Conclusion
Because we find that Goethel's suit was not filed within
the MSA's thirty-day statute of limitations, we need go no further,
and we take no position on the district court's statutory and
constitutional rulings. However, given NOAA's own study which
indicated that the groundfish sector could face serious
difficulties as a result of the industry funding requirement, we
note that this may be a situation where further clarification from
Congress would be helpful for the regulated fisheries and the
12 Goethel and Sector 13 were subject to the applicable
regulations at the time NMFS promulgated Amendment 16, and at the
time that the government announced, in the May 2015 final rule,
that the industry funding requirement would kick in at the
beginning of the 2016 calendar year. Therefore, we need not
consider what other rights, if any, a party who became subject to
the regulations for the first time more than thirty days after the
May 2015 final rule would have, nor do we take any position on how
the MSA's thirty-day statute of limitations would apply to a claim
by such a party.
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agency itself as it balances the competing goals of conservation
and the economic vitality of the fishery.
While the concurring opinion suggests that this is
inappropriate, we note that it is not uncommon in this and other
circuits to include language in opinions that flags potential
issues for Congress to consider, should it choose to do so.13 See,
e.g., Sony BMG Music Entm't v. Tenenbaum, 660 F.3d 487, 490 (1st
Cir. 2011) (commenting, in the context of a copyright infringement
suit, that the case "raises concerns about application of the
Copyright Act which Congress may wish to examine"); Slayton v. Am.
Express Co., 604 F.3d 758, 772 (2d Cir. 2010) (noting, while not
deciding the issue, that "Congress may wish to give further
direction on how to resolve [a] tension" in the Private Securities
Litigation Reform Act); Holender v. Mut. Indus. N. Inc., 527 F.3d
352, 357 (3d Cir. 2008) (observing, in a dispute over the scope of
the Age Discrimination in Employment Act, that "Congress may wish
to revisit this regulatory regime if it proves unworkable");
Elsenety v. Health Care Fin. Admin., 85 F. App'x 405, 410 (6th
Cir. 2003) (acknowledging that the statutory framework in question
13 Indeed, beginning in 1995 with the Long Range Plan for the
Federal Courts, the Judicial Conference and Congress have
collaborated on the Project to Provide Congress with Appellate
Opinions Bearing on Technical Matters of Statutory Construction,
and we have occasionally sent opinions to Congress that we believe
may warrant additional clarification via legislation, precisely
because, as the concurring opinion suggests, the judiciary lacks
expertise on the policy trade-offs faced by Congress.
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created a "harsh rule" and that "[a]t some point in the future,
Congress may wish to reexamine" the statute); Cefalu v. Vill. of
Elk Grove, 211 F.3d 416, 428 (7th Cir. 2000) (suggesting that
certain in-trial evidence presentations are likely reimbursable
under statute governing fees for exemplification, but noting that
"[g]iven the costs associated with some of these" practices, "this
is an area that Congress may wish to revisit and supply further
guidance"); see also United States v. Godin, 534 F.3d 51, 65 (1st
Cir. 2008) (Lynch, J., concurring) (noting that "Congress may wish
to clarify in new legislation the scope of the enhanced penalties"
under an aggravated identity theft statute); Schafer v. Am.
Cyanamid Co., 20 F.3d 1, 7 (1st Cir. 1994) (Stahl, J., concurring)
(agreeing with the majority's interpretation of the National
Childhood Vaccine Injury Act, but "respectfully suggest[ing] that
this is an issue which Congress may wish to revisit."); Olson v.
Gen. Dynamics Corp., 960 F.2d 1418, 1425 (9th Cir. 1991)
(Reinhardt, J., concurring) ("The proliferation of ERISA [Employee
Retirement Income Security Act] preemption cases, in my view,
raises a question as to whether ERISA is having an effect that is
substantially contrary to that intended by those who favored its
adoption. This is a matter which Congress may wish to examine
carefully."); United States v. Collins, CR No. 03-51 S, 2016 WL
6477031, at *3 n.1 (D.R.I. Nov. 2, 2016) (suggesting that "Congress
may wish to consider amending the enumerated offenses clause of
- 24 -
[the Armed Career Criminal Act] to include those crimes, such as
murder, which previously were understood to fall squarely within
the residual clause.").
Because Goethel's claim is untimely, however, we AFFIRM
the grant of summary judgment in favor of the government.
-Concurring Opinion Follows-
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KAYATTA, Circuit Judge, concurring. I join in the
panel's opinion with the exception of its call on Congress to
provide further clarification. The nicely reasoned conclusion
that the petition is untimely means that we lack jurisdiction to
consider the merits of the appeal. See Norbird Fisheries, Inc. v.
Nat'l Marine Fisheries Serv., 112 F.3d 414, 416 (9th Cir. 1997).
My colleagues nevertheless call on Congress to provide "further
clarification" not concerning the matter of our jurisdiction, but
rather concerning "the industry funding requirement" in light of
the "competing goals" at stake. To the extent my colleagues imply
that the statute is unclear, or that the "competing goals" at stake
trigger some sort of express statement preference in these
circumstances, I respectfully disagree. The default norm,
manifest without express statement in literally hundreds of
regulations, is that the government does not reimburse regulated
entities for the cost of complying with properly enacted
regulations, at least short of a taking. If this statute needs
clarification on this point, then so too do hundreds of others.
Additionally, given that we have no jurisdiction to hear the merits
of this appeal, nor any expertise on the policy trade-offs made by
Congress in deciding how best to protect our fisheries from
overfishing, and who should pay for that protection, I think it
prudent to be more parsimonious with our advice. See Stephen
Breyer, Active Liberty: Interpreting Our Democratic
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Constitution 5 (2005) ("The judge, compared to the legislator,
lacks relevant expertise.").
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