373 F. Supp. 3d 97
D.C. Cir.2019Background
- Plaintiffs (Flaherty, Hastbacka, Ocean River Institute) challenge amendments to the Atlantic Herring Fishery Management Plan (Herring FMP), alleging failures to designate river herring and shad as managed "stocks."
- Regional New England Fishery Management Council developed and submitted Amendment 5 (which did not list river herring or shad as stocks); the Secretary/NOAA/NMFS reviewed and promulgated the final rule implementing Amendment 5.
- Plaintiffs amended their complaint to add direct APA and MSA claims against the Council (Counts II and III) for submitting Amendment 5 and for failing to initiate a new amendment.
- Defendants and an intervenor moved to dismiss those counts, arguing the Council is not an APA "agency" and sovereign immunity/MSA provisions preclude suit.
- The court held the central question is whether the Council is an "agency" under 5 U.S.C. § 701(b)(1); it concluded the Council is an advisory body without "substantial independent authority," so § 702's APA waiver of sovereign immunity does not apply.
- Because sovereign immunity bars suit against the Council, the court dismissed Counts II and III for lack of subject-matter jurisdiction and dismissed the Council as a defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Fishery Management Council is an "agency" under the APA | Council exercises sufficient independent authority in preparing and shaping FMP proposals and conducting research; its actions are effectively unreviewable | Council is advisory; it cannot promulgate binding rules—only the Secretary/Service can approve and promulgate FMPs | Not an agency; the Council lacks substantial independent authority; advisory role precludes APA agency status |
| Whether § 702 waives sovereign immunity for claims against the Council | APA § 702 waives immunity for non-monetary relief against agencies; plaintiffs treat the Council as an agency so waiver applies | § 702 applies only to defendants that qualify as "agencies"; because Council is not an agency, sovereign immunity remains | No waiver; sovereign immunity bars suit against the Council, depriving the court of jurisdiction |
| Whether MSA's judicial-review scheme allows direct suit against the Council | Plaintiffs argue direct APA review is available if Council action is final | Defendants point to MSA procedures making Secretary the actor subject to review and to statutory review scheme for Secretary actions | Court views MSA review provisions as reinforcing that Secretary, not Council, is the reviewable actor; Council suits are not permitted under § 702 |
| Whether any Council powers (e.g., limited veto over repeal) make it an agency | Plaintiffs cite limited statutory features suggesting regulatory effect | Defendants emphasize that any limited veto or research mandate does not equate to final, binding governmental authority | Limited veto/research duties insufficient; do not transform advisory Council into an APA "agency" |
Key Cases Cited
- Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971) (defines APA agency by "substantial independent authority" standard)
- Grumman Aircraft Eng'g Corp. v. Renegotiation Bd., 482 F.2d 710 (D.C. Cir. 1973) (Regional boards treated as agencies where they exercised final, unreviewable decisionmaking)
- Washington Research Project, Inc. v. Dep't of Health, Educ. & Welfare, 504 F.2d 238 (D.C. Cir. 1974) (entities that merely make recommendations and lack legal decisionmaking authority are not agencies)
- Energy Research Found. v. Def. Nuclear Facilities Safety Bd., 917 F.2d 581 (D.C. Cir. 1990) (entity was an agency where it exercised investigative and other powers beyond mere advice)
- Dong v. Smithsonian Inst., 125 F.3d 877 (D.C. Cir. 1997) (agency status requires exercise of governmental authority; advisory organizations can be non-agencies)
- Flaherty v. Bryson (Flaherty I), 850 F. Supp. 2d 38 (D.D.C. 2012) (prior proceedings in this litigation examining Service review of Council proposals)