                              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




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