Case: 24-60055 Document: 134-1 Page: 1 Date Filed: 08/23/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 24-60055
FILED
August 23, 2024
____________
Lyle W. Cayce
George D. Arnesen; Jeffrey Ryan Bradley, Clerk
Plaintiffs—Appellants,
versus
Gina Raimondo, Secretary, U.S. Department of Commerce; National
Marine Fisheries Service; Janet Coit, NMFS Assistant
Administrator; Samuel D. Rauch, III, NMFS Deputy Assistant
Administrator for Regulatory Programs; Gulf of Mexico
Fishery Management Council, Et al.,
Defendants—Appellees,
______________________________
Karen Bell; A.P. Bell Fish Company, Inc.; William
Copeland,
Plaintiffs—Appellants,
versus
Gina Raimondo, Secretary, U.S. Department of Commerce; National
Marine Fisheries Service; Janet Coit, NMFS Assistant
Administrator,
Defendants—Appellees.
Case: 24-60055 Document: 134-1 Page: 2 Date Filed: 08/23/2024
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC Nos. 1:23-CV-145, 1:23-CV-160
______________________________
Before Wiener, Haynes, and Higginson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Congress enacted the Magnuson-Stevens Fishery Conservation and
Management Act in 1976 to regulate fishing in coastal waters after extensive
overfishing and lack of stewardship over vital fishery resources. 90 Stat. 331
(codified as amended at
16 U.S.C. § 1801 et seq.). The Secretary of
Commerce has delegated administration of the Act to the National Marine
Fisheries Service (NMFS). The Act created Regional Fishery Management
Councils.
16 U.S.C. § 1801(b)(5). As the Supreme Court recently explained,
these are “composed of representatives from the coastal States, fishery
stakeholders, and NMFS.” Loper Bright Enters. v. Raimondo,
144 S. Ct. 2244,
2254 (2024) (citing
16 U.S.C. § 1852(a), (b)). The Councils “develop annual
catch limits for” fisheries in their geographic regions,
16 U.S.C. § 1852(h)(6),
which are then given to the NMFS Assistant Administrator who reviews
them in establishing or amending fishery management plans and issuing, after
notice and comment, binding regulations to enact those plans,
id.
§ 1854(a)(3), (b)(3).
Plaintiffs are commercial fishers challenging the constitutionality of
the Gulf of Mexico Fishery Management Council on both removal and
appointment grounds. This suit arose from approval, after notice and
comment, of an amendment (“Amendment 54”) to the region’s fishery
management plan recommended by the Council to significantly reduce the
greater amberjack catch limit and the Secretary’s subsequent
implementation of that catch limit through regulations (“Final Rule”).
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George D. Arnesen and Jeffrey Ryan Bradley sued Secretary of
Commerce Gina Raimondo; NMFS; NMFS Assistant Administrator Janet
Coit; and the Gulf of Mexico Fishery Management Council, Samuel D.
Rauch, III, who serves on the Council through his role as NMFS Deputy
Assistant Administrator for Regulatory Programs, and the Council’s
individual members. Karen Bell, A.P. Bell Fish Company, Inc., and William
Copeland separately filed suit against the Secretary and the NMFS and its
Assistant Administrator.
Both sets of plaintiffs asserted that the Final Rule was void because
the Council members were improperly appointed under Article II, § 2,
Clause 2 of the U.S. Constitution. Arnesen plaintiffs additionally urged that
Council members were unconstitutionally insulated from removal. Both sets
of plaintiffs sought a declaratory judgment as to these constitutional
arguments and an injunction setting aside the Final Rule and prohibiting its
enforcement. Arnesen plaintiffs additionally requested that Amendment 54
itself be declared void and sought an injunction against the Council members
barring them from further developing annual catch limits for the greater
amberjack fishery.
The district court consolidated the cases and ultimately awarded
summary judgment to the government because the plaintiffs were not
entitled to relief for either constitutional challenge. As relevant here, the
district court concluded that six of the Council’s seventeen members were
inferior officers whose appointments violated the Appointments Clause. It
nevertheless determined that plaintiffs were not entitled to relief for two
independent reasons. First, the constitutional violation was not the
proximate cause of the plaintiffs’ injuries because the decision to implement
Amendment 54 by enacting the Final Rule was made by the Secretary’s
designee, the NMFS Assistant Administrator. Second, the “remaining
[eleven] Council [m]embers were properly appointed and exercised valid
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authority related to Amendment 54, while still constituting a quorum of the
Council.”
We remand to the district court to address, in the first instance,
whether (1) there is jurisdiction to consider Arnesen’s requested relief
declaring Amendment 54 itself void and enjoining the voting members of the
Council from developing further annual catch limits for the greater amberjack
fishery in light of the Government’s contention that judicial review under 16
U.S.C. § 1855(f)(1)–(2) is limited to “[r]egulations promulgated by the
Secretary” and “actions that are taken by the Secretary under regulations
which implement a fishery management plan,” 1 and (2) whether the NMFS
Assistant Administrator’s review and approval of the Final Rule functioned
as a ratification of Council’s actions. This follows an approach taken by our
court in a recent case.
In Braidwood Management v. Becerra, the district court considered
Appointments Clause challenges to three bodies “affiliated with the
Department of Health and Human Services.” 104 F.4th 930, 936 (5th Cir.
2024). As to one of those bodies, the district court concluded that its
members were principal officers who were improperly appointed. Id. at 938–
39. Our court affirmed. Id. at 946. The district court rejected the
Appointments Clause challenge to the other two bodies. Id. at 938–39. Our
court, rather than consider whether those two bodies were constituted by
individuals serving in violation of the Appointments Clause, remanded to the
district court. Id. at 957. This remand was to allow the district court to fully
consider various challenges to the Secretary’s memorandum adopting
recommendations from those bodies that the Government argued would
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1
We have previously remanded for similar determinations from district courts in
the first instance. See, e.g., Texas v. Caremark, Inc., 584 F.3d 655, 659 (5th Cir. 2009).
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have “effectively cured whatever Appointments Clause issues” that the
court might conclude existed as to those bodies. Id. at 956. Our court
explained that this approach was proper even though “[t]he district court, to
be sure, determined that the Secretary had properly ratified [the two bodies’
actions], but it had no opportunity to consider the” arguments as the parties
developed them on appeal. Id. at 957.
Following that panel’s lead, we remand for full district court
treatment of the ratification issue before we address whether the Council
members were validly appointed and whether, regardless of whether they
were validly appointed, their actions were ratified by the Assistant
Administrator’s review, approval, and publication of Amendment 54 and its
implementing regulations, or whether they are otherwise not entitled to
relief. The district court concluded that “the composition of the Council was
not the proximate cause of the [plaintiffs’] injury,” as “[t]he amberjack quota
reduction was ultimately signed off on by the Secretary’s Designee, [the
NMFS Assistant Administrator]—not the Council.” The district court
explained that this decision, reached after “rigorous” review, “adopt[ed]
Amendment 54 as the Secretary’s” and thus “cut[] off proximate causation
to the Council.” Following this explanation, it then noted in a footnote that
“[s]everal circuits have held that a properly appointed official can ratify an
improperly appointed official’s action,” citing to caselaw from the D.C.,
Second, Third, and Ninth Circuits. The district court, however, rested its
conclusion on lack of proximate cause and did not undertake the ratification
analysis itself.
After the district court’s order issued—indeed, after appellate
briefing concluded and just days before oral argument—Braidwood
Management issued. The district court will now benefit from that decision’s
ratification analysis in which our court explained that “[t]he remedial theory
seems to be well established . . . in a few of our sister circuits” that apply
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“basic principles of agency” law, id. at 947, and then applied that theory to
hold that the attempted ratification of one of the challenged bodies’ actions
was ineffective, id. at 948-49. 2
As our court in Braidwood Management explained, we “generally
prefer to adhere to our policy of being ‘a court of review, not first view.’” Id.
at 957 (quoting Deanda v. Becerra, 96 F.4th 750, 767 (5th Cir. 2024)). “So
rather than decide these heady questions ourselves without the benefit of any
considered judgment below,” we remand for the district court to address the
ratification theory that it identified “in the first instance,” so that “we will
be better positioned to weigh in” on this issue and consider the other issues
raised.
Id.
…
We therefore REMAND to the district court for proceedings
consistent with this opinion.
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2
We recognize, though, that there may be important differences between the
instant case and Braidwood Management. Ratification in that case concerns a memorandum
from the Secretary, issued after litigation commenced, adopting recommendations as his
own, including those challenged which were made several years earlier. Id. at 937–
38, 947. Here, the Council drafted Amendment 54 and implementing regulations which it
conveyed to the NMFS Assistant Administrator, who approved them—following notice
and comment and review according to, among other things, the statutory framework, see
16
U.S.C. § 1853(a)(1)(C)—before litigation commenced.
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