United States Department of Justice Office of Legal Counsel, 1980

Litigating Authority of the Regional Fishery Management Councils

United States Department of Justice Office of Legal Counsel · Decided September 17, 1980

Opinion

T h e leg islativ e h isto ry and g en eral s ta tu to ry fra m e w o rk o f th e F ish e ry C o n serv atio n and

M a n ag em en t A c t o f 1976 in d icate th a t C o n g re ss d id n ot in ten d the R egional F ish ery M an ag em en t C o u n c ils to h av e litig atin g a u th o rity in d ep en d en t o f th e D e p a rtm e n t o f Ju stice, so as to en ab le them to c h a lle n g e in c o u rt a d ecision by th e S e c re ta ry o f C o m m e rc e taken u n d er the F C M A and relatin g to the establishm ent o f th e C o u n c ils and th e ir functions.

T h e C o u n c ils h a v e n e ith e r express s ta tu to ry a u th o rity n o r th at freed o m from ex ecu tiv e c o n tro l th at w o u ld g iv e rise to som e in feren c e su p p o rtiv e o f th e ir h av in g in d ep en d en t litig atin g a u th o rity .

T h e g en eral ru le against in te r-a g e n c y and in tra -ag en c y law suits arises n ot o n ly from a d esire fo r ce n tra liz e d c o n tro l o f litigation, but also from the co n stitu tio n al p rin cip le th at d isp u tes b etw een en tities su b ject to th e c o n tro l o f th e P re sid en t sh o u ld be reso lv ed w ith in th e e x e c u tiv e b ran ch .

September 17, 1980 ' M EM ORANDUM OPIN IO N FOR T H E G E N ER A L COUNSEL,

N A TIO N A L O CEAN IC AND ATM OSPHERIC AD M IN ISTRA TIO N

You have asked this Office whether Regional Fishery Management Councils (Councils), established by the Fishery Conservation and Man agement Act of 1976 (FCMA), 16 U.S.C. §§ 1801-82, may, on their own behalf, challenge in court a decision by the Secretary of Com merce (the Secretary) taken under the FCMA and relating to the establishment of the Councils and their functions.1 We have concluded that the Councils do not have independent litigating authority, and cannot, therefore, challenge the Secretary’s actions in court. The FCMA “adopts a somewhat convoluted scheme to achieve its purposes of conservation and management of fishery resources.” Wash ington Trollers Ass'n v. Kreps, 466 F. Supp. 309, 311 (W.D. Wash. 1979). This is at least in part the result of Congress’ desire to effect a compro mise between the need for federal control of the nation’s marine re sources and the states’ desire for authority over “their” fish. See 122 Cong. Rec. 115 (1976); H.R. Rep. No. 948, 94th Cong., 2d Sess. 50 (1976); H.R. Rep. No. 445, 94th Cong., 1st Sess. 61-62 (1975);

1 In your letter you raised tw o issues. T h e first, concerning boundaries betw een adjoining Councils, w as addressed in o u r m em orandum to you o f D ecem ber 14, 1979 [3 Op. O .L .C . 464 (1979)]. 50 C.F.R. §601.1 (1979). As originally drafted, this legislation provided that the Secretary and the Councils were to be coordinate authorities:

The regional Councils are, in concept, intended to be similar to a legislative branch of government. . . . The Secretary of Commerce is given authority under the bill to act as the “executive,” with ultimate authority to make decisions about management regulations for the entire nation. . . . Finally, section 204 establishes an appellate body, theoretically comparable to the judicial branch, the Fishery Management Review Board. . . . The concept of an administrative review board of this nature is not new (i.e., the National Labor Relations Board) and will hope fully provide an independent review process with the ease of access and speed of decision that will give confidence to the decisionmaking process.

S. Rep. No. 416, 94th Cong., 1st Sess. 29 (1975). The Board “would have [had] exclusive and original jurisdiction to hear appeals from actions of the Secretary relating to fishery management. The purpose of the Board [was] to provide an independent review procedure for the settlement of disputes arising from the administration of the A ct.” Id. at 38-39.

Two groups could appeal to it:

(1) Any person who is adversely affected or aggrieved by, or who suffers legal wrong through [a final rule, regula tion or decision of the Secretary, and,] . . . (2) Any Council whose recommended management regu lations were determined by the Secretary to be non- consistent with the national standards . . . .

Id. at 58 (proposed § 204(c)(1), (2)).

This provision was included because the Senate committee believed that:

It is inevitable that disputes will arise with respect to fishery management decisions. To meet the need for dis pute settlement, the bill establishes a Fishery Management Review Board. The Board, an independent quasi-judicial administrative body, would review disputes between the Secretary and the Regional Councils, as well as other disputes relating to fishery management decisions.

Id. at 5. Appeals from the Board to the Court of Appeals could only be brought by a person “who is adversely affected or aggrieved by, or who suffers legal wrong through, a decision of the Board . . . ,” not by a Council. Id. at 59 (proposed § 204(g)).

The Board, however, did not become a part of the final version of FCMA. The House and Senate, having passed different versions of FCMA, deleted it in conference, stating:

The implementation process provisions follow comparable provisions in the House bill and the Senate amendment [S. 961], except that . . . (2) the provisions in the Senate amendment establishing a 5-member, President-appointed “Fishery Management Review Board” to determine ap peals from regulations promulgated by the Secretary is not included in the conference substitute in favor of judi cial review.

H.R. Rep. No. 948, 94th Cong., 2d Sess. 55 (1976). Judicial review under FCMA is in accordance with the Administrative Procedure Act (APA). 16 U.S.C. § 1855(d). Review under the APA is available to “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action. . . . ” 5 U.S.C. § 702. The legislative history, therefore, indicates that Congress decided not to permit the Councils to challenge the Secretary’s decision administra tively.

Under the FCMA, the Councils’ staff and administrative expenses are funded by Congress, and the disbursement of funds is controlled by the Secretary. 16 U.S.C. § 1852(0(7). The Secretary appoints a majority of the voting members to their three-year terms. 16 U.S.C. § 1852(b)(3). He provides the guidelines for the fishery management plans, 50 C.F.R. §602.1 et seq., and has final responsibility for their development, 16 U.S.C. §§ 1854, 1855, and enforcement, 16 U.S.C. §§ 1856(b), 1858, 1861, and for promulgation of regulations. The Councils, on the other hand, have a purely advisory function under the statute. 16 U.S.C. § 1852(h). The Secretary can, if he wishes, develop a plan or implement a set of regulations of which a Council disapproves. 16 U.S.C. §§ 1854(c)(1)(B), (c)(2), 1855(c).

Given this framework, we believe that the Councils lack independent litigating authority. The conduct of litigation involving the United States or one of its agencies 2 is broadly reserved to the Department of

2 A gencies include "an y d epartm ent, independent establishm ent, commission, adm inistration, a u th o r ity, board o r bureau o f the U nited States. . . 28 U.S.C. §451. All o f the opinions discussing the C ouncils' status under various statutes appear to place them in at least one o f these categories. See M em orandum O pinion for the G eneral C ounsel, U.S. D epartm ent o f Com m erce, N ational O ceanic and A tm ospheric A dm inistration (N O A A ) from Leon Ulman, D eputy Assistant A ttorney G eneral, O ffice o f Legal Counsel, O cto b er 14, 1977 [I Op. O .L .C . 239] (independent establishm ent under the Federal T ort Claims A ct); m em orandum for the D eputy G eneral Counsel, D epartm ent o f C om m erce from the Assistant A tto rn ey G eneral, C ivil Division, Ju ly 12, 1977 (agencies under Federal T o rt Claims Act); m em orandum for the D eputy G eneral Counsel, N O A A , from a staff attorney, N ovem ber 30, 1976 (agency under the A dm inistrative Procedure Act); m em orandum for the G eneral Counsel, D epartm ent o f C om m erce from the G eneral C ounsel, N O A A (same); m em orandum for the A cting G eneral Counsel, D epartm ent o f C om m erce from the G eneral Counsel, O ffice o f M anagem ent and Budget, M arch 22, 1977 (statutory advisory com m ittee); m em orandum for the G eneral Counsel, N O A A from the Assistant G eneral Counsel, G eneral Services A dm inistration, Septem ber 30, 1977 (independent Justice. 28 U.S.C. §516. Without express authorization, an agency or department risks having the court dismiss its suit. Interstate Commerce Com m ’n v. Southern Railway Co., 43 F.2d 534, 536-38 (5th Cir. 1976); Federal Trade Commission v. Guignon, 390 F.2d 323, 324 (8th Cir. 1968); Securities & Exchange Commission v. Robert Collier & Co., 76 F.2d 939, 940 (2d Cir. 1935); Sutherland v. International Insurance Co., 43 F.2d 969, 970-71 (2d Cir.) (L. Hand, J.), cert, denied, 282 U.S. 890 (1930).3 Under the FCMA itself, for example, the Secretary must refer civil penalty and forfeiture proceedings to the Attorney General for enforcement. 16 U.S.C. §§ 1858(c), 1860(b)(c). In enacting the FCMA, Congress considered—and rejected—a statutory scheme that would have permitted the Councils to challenge before an administrative body the Secretary’s final decision. Congress knows how to draft a statute that would allow an agency to challenge a final order of another agency.4 In the absence of any such express statutory authority, the Councils may not litigate against anyone, including the Secretary.5 This will certainly not prevent states or individual council members from challenging the Secretary so long as they have standing to do so. See, State o f Maine v. Kreps, 563 F.2d 1043, 1045 n.l (1st Cir. 1977). This reading of the Councils’ authority also is consistent with the general principle that statutes should be construed so as to avoid doubts regard ing their constitutionality, see generally, Kent v. Dulles, 357 U.S. 116 (1958). As discussed below, construing the Councils to have such au thority would raise a substantial constitutional question.

This general rule against inter- and intra-agency lawsuits arises not only from a desire for centralized control of litigation but also from the establishment); m em orandum for the G eneral Counsel, N O A A from the Solicitor o f Labor, O c to ber 19, 1979 (w holly ow ned instrum entality o f the U nited States under the Social S ecurity A ct and Federal Employees* C om pensation A ct); m em orandum for the D epartm ent o f C om m erce from the Chief, W age, Excise and A dm inistrative Provisions Branch, Internal Revenue Service, N ovem ber 22, 1977 (w holly ow ned instrum entality under Federal Insurance C ontributions A ct). But cf. m em orandum for the Assistant Secretary for A dm inistration, D epartm ent o f C om m erce from the A cting G eneral C ounsel, United States Civil Service Commission, A ugust 3, 1976 (public m embers not federal employees).

3 See The Gray Jacket. 72 U.S. (5 W all.) 370, 371 (1866); 5 U.S.C. §3106; Exec. O rd e r No. 12,146, § 1-4, reprinted in 28 U.S.C. § 509 A pp. at 1162 (Supp. Ill 1979); Exec. O rder No. 6,166, § 5 (1933), reprinted in 5 U.S.C. §§ 124-32 A pp. at 159 (1964); P. Bator, P. M ishkin, D. S hapiro & H. W echsler, H art & W echsJer’s T he Federal C ourts & the Federal System 1315-20 (2d ed. 1973 8t 1977 Supp ). 4 U nder the Federal Coal M ine Safety A ct o f 1952 (the A ct), for exam ple, C ongress set up a Coal Mine Safety Board o f R eview (the Board). 30 U.S.C. § 475 (1964). T h e Board could o verrule decisions made by the D irecto r o f the United States Bureau o f Mines. 30 U.S.C. § 477(a) (1964). T h e A ct specifically provided, how ever, that the D irecto r could then challenge any final o rd e r o f the Board in the C ourt o f A ppeals. 30 U.S.C. § 478(a) (1964) (“ upon the filing in such court o f a notice o f appeal by the D irecto r . . . .” ) See Director, United States Bureau o f Mines v. Princess Elkhorn Coal Co., 226 F.2d 570 (6th Cir. 1955); Director. United States Bureau o f Mines v. Three Fork Coal Co.. 222 F.2d 425 (4th Cir. 1955) (appeal dismissed as untimely). T h e Board was elim inated under the Federal C oal Mine Health and Safety A ct o f 1969. S. Rep. No. 411, 91st Cong., 1st Sess. 38 (1969). Instead, C ongress substituted “ traditional adm inistrative and judicial procedures.*’ Id. at 37-38. See 30 U.S.C. § 8l6 (aX l) (Supp. I ll 1979). See also Klaus, The Taft-Hartley Experiment in Separation o f N L R B Functions. 11 Indus & Lab. Rel. Rev. 371 (1958). 6 See Lee v. Civil Aeronautics Board. 225 F.2d 950, 951-52 (D .C . Cir. 1955); D avis, Standing o f a Public Official To Challenge Agency Decisions: A Unique Problem o f State Administrative Law. 16 A d. L. Rev. 163, 167, 168 (1964). constitutional structure of our government. Disputes between parts of the executive branch, each of which is ultimately responsible to the President, should be resolved within the executive branch. See Execu tive Order No. 12,146, § 1-4, reprinted in 28 U.S.C. § 509 App. at 1162 (Supp. Ill 1979). Independence of an agency from the executive’s supervisory control may overcome this presumption.6 The Councils, however, have neither express statutory authority nor that freedom from executive control that would give rise to some inference support ive of their having independent litigating authority. However independ ent the Councils may be in their day-to-day operations, ultimate author ity over a majority of their membership,7 budgets,8 and their major area of concern—the fishery management plans—remains with the Sec retary or other federal agencies. The Councils perform the basic re search, hold hearings, draft the plan for their area, and propose regula tions. 16 U.S.C. §§ 1852(h), 1853(c). It is the Secretary, however, to whom the drafts and proposals are submitted and it is the Secretary who either approves the management plan or amends it to his satisfac tion. 16 U.S.C. § 1854. See State o f Maine v. Kreps, 563 F.2d 1052, 1055-56 (1st Cir. 1977). It is also the Secretary who reviews the regulations to insure their legality and who implements them. 16 U.S.C. § 1855(c). That the Department of Commerce has found it most effi cient to allow the Councils maximum leeway, see 50 C.F.R §601.1 (1979), does not change an analysis based on the statutory framework. The Councils are subordinate parts of the Department of Commerce. Any attempt on their part to sue the Secretary would therefore raise a substantial constitutional question. .

We believe that the Councils are a part of the Departm ent-of Com merce and subject to its overall control. In the absence of specific contrary legislation, they must be represented in any court proceeding by the Secretary’s lawyer, the Attorney General. Since the Councils cannot go into court without the Attorney General, the Councils have

6 See United States v. Nixon, 418 U.S. 683, 694-95 (1974); Federal Maritime Board v. Isbrandtsen, 356 U.S. 481 (1958); Secretary o f Agriculture v. United States, 347 U.S. 645 (1954); Chapman v. FPC,- 345 U.S. 153 (1953); IC C v. Jersey City, 322 U.S. 503 (1944); United States v. ICC, 221 F. Supp. 584 (D .D .C . 1963); Benson v. United States, 175 F. Supp. 265 (D .D .C . 1959); United States v. ICC, 142 F. Supp. 741 (D .D .C . 1956).

7 T h e S ecretary appoints a m ajority o f th e voting m em bers from lists subm itted by each state's govern o r. 16 U.S.C. § 1852(b)(1)(B). T h e nonvoting m em bers represent various federal agencies. 16 U .S.C. f 1852(c). W h eth er th e Secretary m ay freely rem ove th e voting m em bers w hom he appoints, 16 U .S.C. § 1852(bXlXC), need not be decided. It appears, how ever, that the C ouncils’ functions are prim arily executive, not legislative o r judicial. Wiener v. United States, 357 U.S. 349, 351-53 (1958); Lewis v. Carter, 436 F. Supp. 958, 961 (D .D .C . 1977).

* T h e Secretary pays for th e C ouncils’ necessary staff and adm inistration. 16 U .S.C. § 1852(0(7). no authority to bring suit on their own behalf to challenge a decision by the Secretary taken under FCMA and relating to the establishment of the Councils or their functions.

L a r r y L . S im m s Deputy Assistant Attorney General

Office o f Legal Counsel

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