Delta Commercial Fisheries Ass'n v. Gulf of Mexico Fishery Management Council , 364 F.3d 269 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
Revised April 6, 2004
March 19, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-30545
DELTA COMMERCIAL FISHERIES ASSOCIATION; JOHN THOMPSON,
Plaintiffs-Appellants,
versus
GULF OF MEXICO FISHERY MANAGEMENT COUNCIL; UNITED STATES
DEPARTMENT OF COMMERCE, Donald L. Evans, as Secretary of,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
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Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Plaintiff-Appellant Delta Commercial Fisheries Association is
a non-profit corporation designed to represent the interests of
commercial fishermen. Plaintiff-Appellant John E. Thompson is a
commercial fisherman and president of the Association. Appellants
(together, the “Association”) sued the Gulf of Mexico Fishery
Management Council and Secretary of Commerce Donald Evans, the
federal authorities responsible for regulating fishing in U.S.
waters in the Gulf of Mexico. The Association’s suit alleges that
the Council does not include “fair and balanced” representation of
commercial and recreational fishing interests as required by a
provision of the Magnuson-Stevens Fishery Conservation and
Management Act, 16 U.S.C.A. § 1852(b)(2)(B) (West 2000). The
district court determined that it lacked jurisdiction to hear the
Association’s claims and dismissed the suit. We affirm the
judgment of the district court for two reasons: first, the
Association lacked standing; and second, the United States has not
waived its sovereign immunity from this type of suit.
I.
The Magnuson-Stevens Fishery Conservation and Management Act,
16 U.S.C.A. §§ 1801-1883 (West 2000), aims to preserve fishery
resources by preventing overfishing, id. § 1801(a)(6). The Act
creates several Regional Fishery Management Councils, each of which
works with the Secretary of Commerce to manage fishery resources in
a particular area. Id. § 1852(a). For instance, the Gulf of
Mexico Fishery Management Council manages fishery resources off the
coasts of Texas, Louisiana, Mississippi, Alabama, and Florida. Id.
§ 1852(a)(1)(E). Each council develops a fishery management plan
with accompanying regulations and limits on catches, takes public
comments, and submits the proposed plan and regulations to the
Secretary. Id. § 1852(h). The Secretary then reviews the proposed
plan and regulations and either approves or disapproves them. Id.
§ 1854.
2
The Gulf of Mexico Council comprises seventeen voting members,
eleven of which the Secretary appoints.1 Id. § 1852(a)(1)(E).
Each voting member serves a three-year term. Id. § 1852(b)(3).
The Secretary must appoint candidates from lists submitted by the
governors of the states represented on the Council. Id. §
1852(b)(2)(C). After consulting representatives of commercial and
recreational fishing interests “to the extent practicable,” each
governor submits a list of three qualified individuals for each
vacancy on the Council. Id. The Secretary then reviews each
governor’s list and, if any individual on the list is not
qualified, directs the governor to submit a new list. Id. In
making appointments, the Secretary “shall, to the extent
practicable, ensure a fair and balanced apportionment, on a
rotating or other basis, of the active participants (or their
representatives) in the commercial and recreational fisheries under
the jurisdiction of the Council.” Id. § 1852(b)(2)(B). The
Secretary must submit a report to two congressional committees
showing that the Council is fair and balanced. Id.
This case focuses on § 1852(b)(2)(B)’s requirement that the
Secretary ensure “fair and balanced” representation of commercial
and recreational fishing interests. The Association asserts the
Council has not been fair and balanced because representation is
1
The other members of the Council are the regional director of the National
Maritime Fisheries Service and the principal state officer in charge of fisheries
for each represented state. Id. § 1852(b)(1).
3
weighted toward recreational interests. Over the last four years,
seven of the eleven appointed members have represented recreational
interests, while only three or four members have represented
commercial interests. The Association complained to the Secretary
about this imbalance, but the Secretary responded that his ability
to ensure “fair and balanced” representation is limited because the
governors control the pool of available appointees.
The Association then sued the Council and the Secretary in his
official capacity.2 The suit seeks declarations (1) that the
composition of the Council is not and has not been “fair and
balanced”; (2) that shrimp aquaculture (which some recent Council
members have represented) is not a commercial fishing interest; and
(3) that when a substantial imbalance of representation exists, a
list of nominees drawn solely from recreational fishing interests
is not “qualified” within the meaning of the Act. The suit also
seeks a preliminary (but not permanent) injunction prohibiting the
Secretary and Council from (1) appointing new members; (2) allowing
new members to take their seats; and (3) conducting business that
affects commercial fishermen.
The Government moved to dismiss under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). The Government argued (1) that
the United States has not waived its sovereign immunity; (2) that
2
The Association originally sued the Secretary as an individual but later
amended its pleadings to delete all reference to the Secretary as an individual.
Thus, the Association has not sued the Secretary or any voting member of the
Council in his or her individual capacity and does not seek to invoke Ex parte
Young, 209 U.S. 123 (1908).
4
the Act does not provide for a private right of action to challenge
the Council’s composition; and (3) that the Association lacked
Article III standing to sue.
The district court concluded that the Act did not waive the
Government’s sovereign immunity against a suit challenging the
composition of the Council and therefore dismissed the case based
on lack of jurisdiction. Delta Commercial Fisheries Ass’n v. Gulf
of Mex. Fishery Mgmt. Council, 259 F. Supp. 2d 511, 516 (E.D. La.
2003). The Association appealed.
II.
We first address the Association’s Article III standing to
challenge the composition of the Council. Although the district
court did not address standing, this Court “may affirm summary
judgment on any legal ground raised below, even if it was not the
basis for the district court’s decision.” Performance Autoplex II
Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003).
We review questions of standing de novo. Arguello v. Conoco, Inc.,
330 F.3d 355, 361 (5th Cir. 2003).
If a plaintiff lacks Article III standing, then a federal
court lacks jurisdiction to hear the complaint. Grant ex rel.
Family Eldercare v. Gilbert, 324 F.3d 383, 386 (5th Cir. 2003).
The Association, as the party invoking federal jurisdiction, bears
the burden of establishing the three familiar elements of Article
5
III standing: injury in fact, causation, and redressibility.
McConnell v. Fed. Election Comm’n, 124 S. Ct. 619, 707 (2003).
To show injury in fact, a plaintiff must demonstrate an injury
that is “‘concrete,’ ‘distinct and palpable,’ and ‘actual or
imminent.’” Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 155
(1990)). The Association has failed to explain how the purported
imbalance of interests on the Council causes any such injury. The
Association alleges that regulations made by the Council profoundly
affect their ability to earn a living. However, the Association
has failed to challenge any specific fishery plan, regulation,
order, or enforcement action. Nor has the Association challenged
any specific appointment to the Council.
The Association admits that it has not challenged any specific
adverse action by the Council or by the Secretary. Instead, the
Association emphasizes the purported deviation from the statutory
requirement that the Council be “fair and balanced.” According to
the Association, this deviation by itself constitutes injury in
fact. But the only interest injured by deviating from this mandate
is the Association’s generalized interest in proper application of
the law. Frustration of such an interest is not by itself an
injury in fact for purposes of standing. See Sierra Club v.
Glickman, 156 F.3d 606, 613 (5th Cir. 1998).3
3
Cargill, Inc. v. United States, 173 F.3d 253 (5th Cir. 1999), a case that
bears some superficial resemblance to this case, is distinguishable. In Cargill,
a federal agency planned a study of the toxic effects of diesel on miners. The
agency decided to arrange for peer review of the protocol to be used in the
6
The Association complains that challenging a specific
regulation would be unworkable. Any such challenge, the
Association argues, would require a showing that the regulation is
arbitrary and capricious--a showing that, in the Association’s
view, is exceedingly difficult. These practical obstacles,
however, do not obviate the “irreducible” constitutional
requirement that a plaintiff demonstrate an actual or imminent
injury. See McConnell v. Fed. Election Comm’n, 124 S. Ct. at 707
(quoting Vt. Agency of Natural Res. v. United States ex rel.
Stevens, 529 U.S. 765, 771 (2000)).
A plaintiff’s failure to establish one of the three elements
of Article III standing deprives federal courts of jurisdiction to
hear the plaintiff’s suit. Rivera v. Wyeth-Ayerst Labs., 283 F.3d
315, 319 (5th Cir. 2002). Therefore, because the Association has
study. The agency therefore authorized a board of scientific counselors to
review the protocol. A coalition of mine owners protested that the board was not
“fairly balanced in terms of points of view represented” as required by § 5 of
the Federal Advisory Committee Act (“FACA”), 5 U.S.C.A. app. 2 § 5 (West 1996).
The Government argued that the mine owners had not demonstrated that a deviation
from the “fairly balanced” requirement constituted an injury in fact. However,
Cargill determined that “[w]hen the requirement is ignored, persons having a
direct interest in the committee’s purpose suffer injury-in-fact sufficient to
confer standing to sue.” 173 F.3d at 337 (quoting Nat’l Anti-Hunger Coalition
v. Executive Comm. of the President’s Private Sector Survey on Cost Control, 711
F.2d 1071, 1074 n.2 (D.C. Cir. 1983)).
The challenge mounted by the mine owners in Cargill was far more concrete
than the allegations brought by the Association in this case. The plaintiff mine
owners in Cargill were challenging review of a specific protocol that would
control an already-planned study in which the government required them to
participate. Cargill, 173 F.3d at 330 n.5. The data gleaned from the study
would have paved the way for new regulations based on the study’s findings and
could also have exposed the mine owners to tort liability. Id. In contrast, the
Association has identified no regulation or order that the Council has taken or
is more likely to take as a result of the alleged underrepresentation of
commercial fishing. Therefore, Cargill does not control this case.
7
failed to establish an injury in fact, the district court’s
dismissal for lack of jurisdiction was appropriate.
III.
We also agree with the district court that the Association’s
suit is barred by sovereign immunity. The United States must
consent to be sued, and that consent is a prerequisite to federal
jurisdiction. United States v. Navajo Nation, 537 U.S. 488, 502
(2003). Consent may not be inferred, but must be unequivocally
expressed. United States v. White Mountain Apache Tribe, 537 U.S.
465, 472 (2003). Even when the United States waives its sovereign
immunity in part, that partial waiver must be strictly construed in
favor of the Government. Ardestani v. INS, 502 U.S. 129, 137
(1991).4 We review claims of sovereign immunity de novo. Koehler
v. United States, 153 F.3d 263 (5th Cir. 1998).
The Association contends that § 1861(d) of the Magnuson-
Stevens Act waives the United States’ sovereign immunity. That
section provides that “[t]he district courts of the United States
shall have exclusive jurisdiction over any case or controversy
arising under the provisions of this chapter.” 16 U.S.C.A.
§ 1861(d) (West 2000). The Association argues that, because “this
chapter” refers to the entire Act, the United States has waived
sovereign immunity for “any case or controversy” arising under the
4
Section 1855(f) of the Act does partially waive sovereign immunity by
providing for judicial review of regulations promulgated pursuant to the Act.
However, the Association has not attacked any regulations and does not rely on
§ 1855(f).
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Act. The Association further argues that because § 1861(d)
authorizes district courts to issue various orders and to “take
such actions as are in the interest of justice,” the United States
has unequivocally waived its sovereign immunity from suit.
We find no such unequivocal waiver in § 1861(d). We have
consistently held that a statute providing for district court
jurisdiction over certain kinds of cases or controversies does not
by itself waive sovereign immunity. See, e.g., Beall v. United
States, 336 F.3d 419, 421-22 (5th Cir. 2003); Koehler, 153 F.3d at
266 n.2 (5th Cir. 1998).5 Nor does the fact that § 1861(d) also
authorizes district courts to issue certain orders and take certain
actions transform this provision into an unequivocal waiver of
sovereign immunity. Empowering a district court to take certain
actions is not tantamount to authorizing a civil action against the
federal government.
Without an unequivocal waiver, federal courts lack
jurisdiction to hear suits brought against the United States.
White Mountain, 537 U.S. at 472 (2003). Therefore, the district
court’s dismissal of this case for lack of jurisdiction was
appropriate.
5
In Beall, for instance, the court analyzed 28 U.S.C. § 1346, which
authorizes district court jurisdiction over cases involving the recovery of
erroneously or illegally collected taxes. Beall, 336 F.3d at 422. The court
determined that § 1346 did not by itself waive sovereign immunity. Id. Only
when combined with a provision allowing for a civil action to recover wrongfully
collected taxes could § 1346 be considered a waiver of sovereign immunity. Id.
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IV.
The Association has failed to prove that any injury in fact
flowed from the purported imbalance on the Council. Furthermore,
sovereign immunity bars the Association’s challenge to the
composition of the Council.6 We therefore AFFIRM district court’s
judgment dismissing the Association’s suit for lack of
jurisdiction.
6
Because we decide this case based on standing and sovereign immunity, we
decline to address the Government’s alternative arguments that the Magnuson-
Stevens Act authorizes no private right of action to challenge the composition
of the Council and that the Act’s “fair and balanced” requirement is
nonjusticiable.
10