                                                      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.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                       --------------------

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).

                                        8
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.

                                          9
                                       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
