United States Court of Appeals
for the Federal Circuit
THE HUMANE SOCIETY OF THE
HUMANE SOCIETY INTERNATIONAL,
and DEFENDERS OF WILDLIFE,
WILLIAM J. CLINTON, President,
NORMAN Y. MINETA, Secretary
and MADELEINE K. ALBRIGHT,
Secretary of State,
DECIDED: January 4, 2001
Patti A. Goldman, Earthjustice Legal Defense Fund, of Seattle,
Washington, argued for plaintiffs-appellants.
Lucius B. Lau, Attorney, Commercial Litigation Branch,
Civil Division, Department of Justice, of Washington, DC, argued
for defendants-appellees. With him on the brief were David
W. Ogden, Assistant Attorney General; Lois J. Schiffer,
Assistant Attorney General; and David M. Cohen, Director.
Of counsel were Mark A. Brown, Attorney; James C. Kilbourne,
Attorney; and M. Alice Thurston, Attorney. Also of counsel
were Violanda Botet, Attorney, U.S. Department of State,
of Washington, DC; and Margaret Hayes, Attorney, Department
of Commerce, of Washington, DC.
Before CLEVENGER, Circuit Judge,
PLAGER, Senior Circuit Judge,* and
RADER, Circuit Judge.
Opinion for the court filed by Senior
Circuit Judge PLAGER. Circuit Judge RADER concurs
in the result.
PLAGER, Senior Circuit Judge.
The Humane Society of the United
States, Humane Society International, and Defenders of Wildlife
(collectively "Humane Society") appeal from a decision
of the Court of International Trade. The Court of International
Trade denied their request to issue a writ of mandamus directing
the President to impose sanctions on Italy for violation of the
Driftnet Fishing Act, 16 U.S.C. §§ 1826-1826g (Supp.
IV 1998), and denied their request for an order requiring the
Secretary of Commerce to rescind his certification that Italy
had terminated large-scale driftnet fishing. The Court of International
Trade did grant their petition regarding issuance of an order
requiring the Secretary of Commerce, pursuant to 16 U.S.C. §
1826a(b)(1)(B), again to identify Italy as a nation for which
there is reason to believe its nationals or vessels are conducting
large-scale driftnet fishing. Because the Court of International
Trade did not err in its judgment, the judgment is affirmed.
Large-scale driftnet fishing is
defined in 16 U.S.C. § 1826c(2)(A) as "a method of
fishing in which a gillnet composed of a panel or panels of webbing,
or a series of such gillnets, with a total length of two and
one- half kilometers or more is placed in the water and allowed
to drift with the currents and winds for the purpose of entangling
fish in the webbing." A fishing boat deploys the driftnets
by suspending them vertically beneath the surface of the water,
between buoys at the ocean surface and a weighted lead line at
the bottom of the nets. The driftnets are deployed at night when
they are less visible to marine life. Though intended to catch
fish, the nets indiscriminately catch virtually all aquatic life
including fish, whales, dolphins, sea turtles, and sea birds.
The fish are captured when the mesh catches behind their gills,
and the whales, dolphins, and other air-breathing sea life are
caught when they become entangled in the net. At dawn, fishermen
collect the driftnets, remove the target fish, and discard any
non-target species, often drowned, that were caught in the nets.
In 1991, the United Nations General
Assembly passed numerous resolutions calling for a worldwide
moratorium on large-scale high seas driftnets. The resolutions
were aimed primarily at driftnet fishing in the area of the seas
beyond what is known in international law as the Exclusive Economic
Zone ("the EEZ"). The EEZ is the area of the seas that
lies within 200 nautical miles from the shore of a coastal nation;
the area beyond the EEZ is known as the high seas.
In implementing the resolutions,
the United States passed the High Seas Driftnet Fisheries Enforcement
Act, Pub. L. No. 102-582, 106 Stat. 4900 (1992) (codified as
amended at 16 U.S.C. §§ 1826-1826g) (the "Driftnet
Act"). The Driftnet Act establishes a process under which
the United States may take various actions against a foreign
nation whose fishing vessels on the high seas engage in large-scale
driftnet fishing, as the Act defines it.1
We will examine the provisions of the Act in detail below. For
now, it will be enough to outline the way the Act works.
Whenever the Secretary of Commerce
has reason to believe that the nationals or vessels of any nation
are conducting large-scale driftnet fishing beyond the EEZ of
any nation, the Secretary is to identify that nation, and notify
the President and the nation of the identification. 16 U.S.C.
Thereafter, the President is to
enter into consultations with the government of the identified
nation "for the purpose of obtaining an agreement that will
effect the immediate termination of large-scale driftnet fishing
by the nationals or vessels of that nation . . . ." 16 U.S.C.
§ 1826a(b)(2). If those consultations are not "satisfactorily
concluded," the President is to order the Secretary of the
Treasury to prohibit the importation into the United States of
fish and fish products from that nation. 16 U.S.C. § 1826a(b)(3)(A)(ii).
In addition, the Act provides that
the Secretary of Commerce, after giving notice to the nations
involved, is to publish periodically a list of nations whose
nationals or vessels conduct large-scale driftnet fishing beyond
the EEZ of any nation, and the Secretary of the Treasury shall
thereafter deny entry of any such vessel to any place in the
United States. 16 U.S.C. § 1826a(a)(1)-(3). Denial of port
privileges, as well as import sanctions if imposed, remain in
effect until the Secretary of Commerce certifies to the President
and the Congress that such nation has terminated large-scale
driftnet fishing by its nationals and vessels beyond the EEZ.
16 U.S.C. § 1826b.
In 1995, the Humane Society and
other plaintiffs filed suit in the Court of International Trade.
They alleged that, in the face of evidence to the contrary, the
Secretary of Commerce had failed to identify Italy as a nation
whose nationals or vessels conduct large-scale driftnet fishing
in violation of the Driftnet Act. Humane Soc'y of the United
States v. Brown, 901 F. Supp. 338, 345 (Ct. Int'l Trade 1995).
Ultimately, the Court of International Trade agreed, and held
that the Secretary of Commerce had reason to believe that Italian
nationals were conducting large-scale driftnet fishing on the
high seas and that, therefore, the decision not to identify was
an abuse of discretion. Humane Soc'y of the United States
v. Brown, 920 F. Supp. 178, 192-196 (Ct. Int'l Trade 1996).
The Government did not appeal the decision. Pursuant to the trial
court's decision, the Secretary of Commerce on March 28, 1996
identified Italy as a nation for which there was reason to believe
its nationals or vessels were conducting large-scale driftnet
fishing beyond the exclusive economic zone of any nation, and
notified the President of Italy's identification.
Acting through the Department of
State, the President entered into consultations with Italy. In
July 1996, the Italian government sent documents formalizing
its agreement with the United States to end proscribed driftnet
fishing by its nationals and vessels. The United States informed
Italy that its proposals were sufficient to avoid the imposition
of sanctions under the Driftnet Act. Thereafter, on January 7,
1997, the Secretary of Commerce certified to the President and
Congress that Italy had terminated illegal driftnet fishing.
This case arose when, in 1998, pursuant
to the authority of 28 U.S.C. § 1581(i) (1994), the Humane
Society plaintiffs brought another suit in the Court of International
Trade against the President and the Secretary of Commerce. The
suit asked for injunctive and declaratory relief. The Humane
Society alleged that, despite the earlier agreement, illegal
driftnet fishing by Italian nationals and vessels continued in
the Mediterranean Sea in the 1997 and 1998 fishing seasons. The
Humane Society requested the trial court to issue a writ of mandamus
directing the President to impose sanctions on Italy based on
the 1996 identification, enjoin the Secretary of Commerce to
rescind his January 7, 1997 certification of termination by Italy,
and, in the alternative, enjoin the Secretary of Commerce again
to order that there is reason to believe that Italy is a nation
whose nationals or vessels are continuing to conduct large-scale
driftnet fishing beyond the exclusive economic zone.
The Humane Society moved for summary
judgment and the Government defendants filed cross motions for
summary judgment. The trial court held in favor of the Government
regarding the consequences attributable to the 1995-97 events.
The court held that the President's duty to decide if talks with
Italy had "satisfactorily concluded" was discretionary,
and declined to issue a writ of mandamus requiring sanctions.
Further, the trial court found that the Secretary of Commerce's
January 7, 1997 certification of termination was not arbitrary,
capricious or an abuse of discretion, since talks with Italy
had concluded in a formal agreement to end driftnet fishing.
With regard to the state of affairs
at the time of trial, the trial court reviewed the evidence presented
by the Humane Society, which included data provided by the Italian
government indicating 59 administrative violations, 33 administrative
seizures, and 98.5 kilometers of net seized for violations during
1997. In addition, the United States Navy had sighted several
vessels, suspected of being Italian, which were presumed to be
engaging in illegal driftnet fishing. Also, Greenpeace reported
twenty driftnet vessels in March of 1997; in 1998, nine violations
On the basis of this evidence, the
trial court held that the Secretary of Commerce's refusal to
identify Italy a second time was arbitrary and capricious. The
court ordered the Secretary of Commerce again to identify Italy,
pursuant to § 1826a(b)(1)(B), as a nation for which there
is reason to believe that its nationals or vessels are conducting
large-scale driftnet fishing beyond the exclusive economic zone
of any nation, and to notify the President of that identification.
The Humane Society plaintiffs appeal those parts of the decision
of the trial court not in their favor.
Under Rule 56(d) of the United States
Court of International Trade, summary judgment is appropriate
if "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law." When reviewing such a decision by the Court of International
Trade, we assess as a matter of law whether that standard was
correctly applied. Campbell Soup Co. v. United States,
107 F.3d 1556, 1559 (Fed. Cir. 1997); St. Paul Fire &
Marine Ins. v. United States, 6 F.3d 763, 767 (Fed. Cir.
Furthermore, this Court will apply
the standard of review set forth in 5 U.S.C. § 706 to an
action instituted pursuant to 28 U.S.C. § 1581(i). Miami
Free Zone Corp. v. Foreign-Trade Zones Bd., 136 F.3d 1310,
1312-1313 (Fed. Cir. 1998); Shakeproof Indus. Prods. Div.
of Ill. Tool Works Inc. v. United States, 104 F.3d 1309,
1313 (Fed. Cir. 1997). Section 706 of title 5, United States
Code, the Administrative Procedure Act ("APA"), provides
To the extent necessary to decision
and when presented, the reviewing court shall decide all relevant
questions of law, interpret constitutional and statutory provisions,
and determine the meaning or applicability of the terms of an
agency action. The reviewing court shall-
(1)compel agency action unlawfully
withheld or unreasonably delayed; and
(2)hold unlawful and set aside agency
action, findings, and conclusions found to be
(A) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right,
power, privilege, or immunity;
(C) in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right;
(D) without observance of procedure
required by law;
(E) unsupported by substantial evidence
in a case subject to sections 556 and 557 of this title or otherwise
reviewed on the record of an agency hearing provided by statute;
(F) unwarranted by the facts to
the extent that the facts are subject to trial de novo by the
In making the foregoing determinations,
the court shall review the whole record or those parts of it
cited by a party, and due account shall be taken of the rule
of prejudicial error.
Applying this standard of review,
an administrative action is to be upheld if the agency has "considered
the relevant factors and articulated a rational connection between
the facts found and the choices made." Balt. Gas &
Elec. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105
(1983). The Court has recognized that this standard is "highly
deferential" to the administrative agency's factual findings.
Shakeproof, 104 F.3d at 1313.
It is important to understand that
there are two separate actions by United States officials that
are at issue, and two that are not. The two that are not are,
first, the decision by the Court of International Trade that
held arbitrary and capricious the failure of the Secretary of
Commerce in 1995 to identify Italy as a nation about which there
was reason to believe that her nationals or vessels were conducting
high seas driftnet fishing. That judgment was not appealed, and
resulted in the Secretary so identifying Italy, with the attendant
consequences as specified in the Driftnet Act.
The second action not at issue is
the order by the Court of International Trade, this time as part
of the current litigation, overturning the Secretary's new negative
decision regarding identification of Italy. The Court of International
Trade concluded that there was again ample evidence of a "reason
to believe" that Italy was in violation of the Act, and
that the Secretary's refusal to identify Italy anew pursuant
to § 1826a(b)(1)(B) was arbitrary and capricious, and not
in accordance with the Driftnet Act. The Government has not cross-appealed
that decision by the Court of International Trade.
The two decisions that are challenged
on appeal by the Humane Society plaintiffs are (1) the refusal
by the trial court to order the President, after Italy was identified
by the Secretary of Commerce pursuant to the court's 1996 Order,
to direct imposition of import restrictions; and (2) the conclusion
by the trial court that the Secretary's later certification,
that Italy had terminated large-scale driftnet fishing, was not
arbitrary and capricious.
The Humane Society argues that as
a matter of law the President has a non- discretionary duty under
the Driftnet Act to direct the imposition of import sanctions
against nations whose nationals or vessels engage in large-scale
driftnet fishing on the high seas, and this duty can be the basis
for a writ of mandamus. The Humane Society also argues that the
Secretary of Commerce, in certifying that Italy had terminated
large-scale driftnet fishing based solely on an agreement that
had not yet been fully implemented and without any evidence that
the driftnet fishing had, in fact, ceased, had acted arbitrarily
The Government responds first that
the Court of International Trade should not entertain a challenge
to the Government's non-imposition of trade sanctions against
Italy pursuant to the Driftnet Act because there has been no
waiver of sovereign immunity by the United States. Second, even
if the court concludes there has been such a waiver of sovereign
immunity, argues the Government, the President's non-imposition
of trade sanctions against Italy is rational and in accordance
With regard to the Secretary of
Commerce's 1997 certification that Italy had terminated large-scale
driftnet fishing by Italian nationals and vessels, the Government
argues the issue is moot in light of the new court order finding
that Italy is again engaged in high seas driftnet fishing. Finally,
the Government posits that, even if the 1997 certification has
not been rendered moot, it was rational and in accordance with
We first address whether, as the
Government contends, in an action under § 1581 to enforce
the provisions of the Driftnet Act, the President and other executive
officers are immune from suit under the doctrine of sovereign
immunity. This is an issue of first impression. The trial court
declined to address this issue on the grounds that, since the
court was going to hold for the Government on the merits of the
question of whether the President acted within his authority,
there was no need to decide the question of sovereign immunity.
But sovereign immunity goes to the issue of the court's power
to hear the case, and therefore is antecedent to the merits of
the case. See Fed. Deposit Ins. Corp. v. Meyer,
510 U.S. 471-475 (1994) ("Sovereign immunity is jurisdictional
in nature."). Thus, we must address this issue first.
The doctrine of sovereign immunity
is an historic carryover from the days of the near-absolute power
of the English kings. Essentially the doctrine prescribes that
the sovereign-the Federal Government has long claimed status
as such-cannot be brought into court and held liable for its
wrongs against its citizens unless it first consents to be sued.
See Louis L. Jaffe, Suits Against Governments and Officers:
Sovereign Immunity, 77 Harv. L. Rev. 1, 1-5 (1963).
Sovereign immunity and subject matter
jurisdiction are related but different juridical concepts. Federal
courts are courts of limited jurisdiction; they have only such
jurisdiction as is granted to them by law, either by the Constitution
or Congressional legislation. A grant of subject matter jurisdiction
to a particular court, even one that grants jurisdiction over
suits against the Federal Government itself, is not necessarily
the same as a waiver of sovereign immunity. The question is whether
a statute that grants particular jurisdiction to a court also
serves as such a waiver, or whether, as the Government contends
is the case here, a separate statutory waiver is needed. The
answer depends on the particular statutory grant, and what can
be ascertained about Congress's purpose and intent.
Chapter 95, 28 U.S.C., entitled
"Court of International Trade," provides the authority
in § 1581 for "Civil actions against the United States
and agencies and officers thereof." Subsection (i) of §
1581 gives the Court of International Trade:
exclusive jurisdiction of any civil
action commenced against the United States, its agencies, or
its officers, that arises out of any law of the United States
providing for . . .
(1)embargoes or other quantitative
restrictions on the importation of merchandise for reasons other
than the protection of the public health or safety; or
(2)administration and enforcement
. . . .
This is the provision under which
the present Humane Society suit is brought.
The Government argues that 28 U.S.C.
§ 1581(i) does not itself waive sovereign immunity. In support
of its argument, the Government points to part of the legislative
history of the Customs Court Act of 1980 which includes the statement
that "subsection (i) is intended only to confer subject
matter jurisdiction upon the court, and not to create any new
causes of action not founded on other provisions of law."
H.R. Rep. No. 96- 1235, at 47 (1980), reprinted in 1980
U.S.C.C.A.N. 3729, 3759. The Government also refers to statements
indicating that the intent of Congress in enacting § 1581(i)
was to eliminate the confusion that existed between the jurisdiction
of the district courts and that of the Court of International
The Government then cites to the
standing provision governing the commencement of civil actions
in the Court of International Trade which provides, in part,
"[a]ny civil action of which the Court of International
Trade has jurisdiction . . . may be commenced in the court by
any person adversely affected or aggrieved by agency action within
the meaning of section 702 of title 5." 28 U.S.C. §
2631(i). The Government cites to the legislative history of 28
U.S.C. § 2631(i), which provides that "[t]his subsection
is intended to correlate with and complement the broad grant
of residual jurisdiction found in proposed section 1581(i)."
H.R. Rep. No. 96- 1235, at 52, 1980 U.S.C.C.A.N. at 3764. The
Government concludes that a reading of these several provisions
demonstrates that § 1581(i) was not intended to create any
new causes of action, and thus the waiver of sovereign immunity
must be found elsewhere and that waiver must be in the APA.
The Humane Society answers that
United States v. Boe, 543 F.2d 151 (CCPA 1976), and other
portions of the legislative history of the Customs Courts Act
of 1980 demonstrate that § 1581 itself waives sovereign
immunity. In Boe, the Court of Customs and Patent Appeals
construed 28 U.S.C. § 1582, the jurisdictional statute that
was the predecessor of § 1581. Id. Boe held
that "[t]he consent of the sovereign to be sued in the Customs
Court is found in 28 U.S.C. § 1582, which both establishes
and limits the jurisdiction of that court." Id. at
154. Thus, according to Boe that statute itself served
as a waiver of sovereign immunity.
Congress, in enacting the Customs
Courts Act of 1980, which changed the name of the Customs Court
to the Court of International Trade and clarified the new court's
The purpose of this broad jurisdictional
grant is to eliminate confusion which currently exists as to
the demarcation between the jurisdiction of the district courts
and the Court of International Trade. This provision makes it
clear that all suits of the type specified are properly commenced
only in the Court of International Trade.
H.R. Rep. No. 96-1235, at 47, 1980
U.S.C.C.A.N. at 3759. Therefore, argues the Humane Society, the
change from § 1582 to § 1581 was merely intended to
clarify those matters within the exclusive jurisdiction of the
Court of International Trade, and thus did not serve as a withdrawal
of the waiver of sovereign immunity held by Boe to be
embodied in the grant of jurisdiction. Additionally, notes the
Humane Society, that conclusion is supported by the numerous
cases in which the Court of International Trade has since considered
challenges to the actions of the President pursuant to the grant
of jurisdiction in § 1581(i). See, e.g., Florsheim
Shoe Co. v. United States, 744 F.2d 787 (Fed. Cir. 1984);
United States Sugar Cane Refiners Ass'n v. Block, 683
F.2d 399 (CCPA 1982); Kemet Elecs. Corp. v. Barshefsky,
976 F. Supp. 1012 (Ct. Int'l Trade 1997); Luggage & Leather
Goods Mfrs. of Am., Inc. v. United States, 588 F. Supp. 1413
(Ct. Int'l Trade 1984).
We believe the Humane Society's
reading of § 1581 is the correct one. In addition to crediting
the points raised by them, it is informative to look at another
court with complementary subject-matter jurisdiction involving
suits against the United States, the Court of Federal Claims.
Pursuant to 28 U.S.C. § 1491(a) (1994), the Tucker Act,
the Court of Federal Claims has jurisdiction "to render
judgment upon any claim against the United States founded either
upon the Constitution, or any Act of Congress or any regulation
of an executive department, or upon any express or implied contract
with the United States, or for liquidated or unliquidated damages
in cases not sounding in tort." As noted, the jurisdiction
of the two courts is complementary: 28 U.S.C. § 1491(b)
states that "[n]othing herein shall be construed to give
the United States Court of Federal Claims jurisdiction of any
civil action within the exclusive jurisdiction of the Court of
In United States v. Mitchell,
463 U.S. 206 (1983), the Supreme Court acknowledged that terminology
employed in some of its prior decisions had generated some confusion
as to whether the Tucker Act, in addition to granting jurisdiction
to the Court of Claims (the predecessor to the Court of Federal
Claims) over suits against the Federal Government, also constituted
a waiver of sovereign immunity. Id. at 212. The Court
reviewed the history of the Act, the prior decisions regarding
it, and its legislative history. The Court quoted with approval
the statement in the House Judiciary Committee report that the
measure was designed "to give the people of the United States
what every civilized nation of the world has already done-the
right to go into the courts to seek redress against the Government
for their grievances." Id. at 214. The conclusion
the Court reached was that the jurisdictional grant carried with
it the unequivocal waiver of sovereign immunity: "If a claim
falls within the terms of the Tucker Act, the United States has
presumptively consented to suit." Id. at 216.
We can see no basis for treating
the grant of jurisdiction to the Court of International Trade
in a manner different from that by which the jurisdictional grant
to the Court of Federal Claims is treated. The same pattern exists-a
specific grant of jurisdiction by the sovereign to a specific
court for specific causes of action against the sovereign-with
the same result-a determination of liability because of conduct
by the sovereign's officials in the ordinary course of their
assigned duties. Unless the grant of jurisdiction carries with
it a coextensive waiver of sovereign immunity, the Congressional
grant would be a hollow act, with no significant consequences
to the sovereign, and no significant benefits to the sovereign's
Given the prior understanding of
the predecessor act which both granted jurisdiction to the Court
of International Trade and waived sovereign immunity, and the
parallels to the Tucker Act, we follow the same approach taken
by the Supreme Court and conclude that § 1581 not only states
the jurisdictional grant to the Court of International Trade,
but also provides a waiver of sovereign immunity over the specified
classes of cases. The Court of International Trade properly exercised
jurisdiction over this case.
We note in passing that the Government,
having assumed that § 1581 does not constitute a waiver
of sovereign immunity, looks instead in its brief to this court
to § 702 of the APA for the requisite waiver. That leads
the Government into extensive consideration of standing under
the APA. We need not go there; neither party raises the standing
issue independently of the APA issue, and since we do not rely
on the APA for its waiver of sovereign immunity, questions of
standing under the APA are not before us.
Furthermore, courts have recognized
the standing of organizations such as the Humane Society to bring
suits against the Government to implement environmental legislation.
See Japan Whaling Ass'n v. Am. Cetacean Soc'y,
478 U.S. 221, 230 n.4 (1986) ("[T]hey undoubtedly have alleged
a sufficient `injury in fact' in that the whale watching and
studying of their members will be adversely affected by continued
whale harvesting, and this type of interest is within the `zone
of interests' protected by the Pelly and Packwood Amendments.");
United States v. Students Challenging Regulatory Agency Procedures,
412 U.S. 669, 685 (1973) (holding that the trial court did not
err in denying motion to dismiss based on lack of standing because
appellees sufficiently alleged "that their members used
the forests, streams, mountains, and other resources in the Washington
metropolitan area for camping, hiking, fishing, and sightseeing,
and that this use was disturbed by the adverse environmental
impact caused by the nonuse of recyclable goods brought about
by a rate increase on those commodities"); see also
28 U.S.C. § 2631 (general standing provision for suits under
We turn then to the first issue
raised by the appellant Humane Society: whether the issuance
of sanctions by the President pursuant to § 1826a(b)(3)(A)(ii)
is nondiscretionary, and thus the issuance of mandamus would
be appropriate. As a general proposition, two requirements must
be satisfied in order for a writ of mandamus to issue: 1) the
plaintiff must have exhausted all avenues for relief; and 2)
the defendant must owe the plaintiff a clear non-discretionary
duty. Heckler v. Ringer, 466 U.S. 602, 616 (1984); see
also Bobula v. United States Dep't of Justice, 970
F.2d 854, 859-60 (Fed. Cir. 1992) (relying on the Heckler
standard). Here, it is uncontested that the Humane Society plaintiffs
have satisfied the first requirement. Humane Soc'y of United
States v. Clinton, 44 F. Supp. 2d 260, 268 (Ct. Int'l Trade
1998). Thus, the issue is whether the second requirement has
The Driftnet Act is not a model
of clarity in statutory drafting. Not surprisingly, the parties
find in the statute very different understandings. Part of the
problem lies in the order in which the several sections of the
Act are presented. The Act in section 101 (16 U.S.C. § 1826a)
begins by requiring that the Secretary of Commerce, not later
than 30 days after enactment, "and periodically thereafter,"
publish a list of nations whose nationals or vessels conduct
large-scale driftnet fishing beyond the EEZ. The Secretary of
the Treasury "shall" then deny port privileges to any
such nation's large-scale driftnet fishing vessels.
Subsection (b) of section 101 (16
U.S.C. § 1826a(b), entitled "Sanctions" but actually
containing extensive procedural requirements), requires the Secretary
of Commerce, not later than January 10, 1993, and "[a]t
any time after . . . whenever the Secretary . . . has reason
to believe" that the nationals or vessels of any nation
are conducting large-scale driftnet fishing beyond the EEZ, to
(i) identify that nation, and (ii) notify the President of the
identification. The President is then required to enter into
consultations with the government of that nation "for the
purpose of obtaining an agreement that will effect the immediate
termination of large- scale driftnet fishing by the nationals
or vessels of that nation beyond the exclusive economic zone
of any nation." 16 U.S.C. § 1826a(b)(2).
"The President[,] . . . if
the consultations with the government of a nation under paragraph
(2) are not satisfactorily concluded within ninety days, shall
direct the Secretary of the Treasury to prohibit the importation
into the United States of fish and fish products and sport fishing
equipment [from such nation] . . . ." 16 U.S.C. § 1826a(b)(3)(A)
The Humane Society contends that
the only logical way to assess whether the negotiations have
been "satisfactorily concluded" is by reference to
the purpose of the negotiations-specifically, to determine objectively
whether they "produce an agreement that will effectuate
an immediate end to the illegal driftnet fishing." The Humane
Society notes the evidence of continuing violations by Italian
vessels as clear evidence that the President failed to act in
accordance with the statutory standard. In the view of the Humane
Society plaintiffs, if the agreement fell short, then the President
was obligated to direct the Secretary of the Treasury to impose
import sanctions. The Humane Society asks this court to remand
the case to the trial court for its determination of the question
of whether the agreement met that standard, and if the agreement
did not, then to order the President to take the required action.
The Government responds that the
phrase "satisfactorily concluded" refers to a highly
subjective state of mind, such as `to make happy,' or `to please,'
phrases taken from dictionary definitions of "satisfy."
The Government further notes that, in cases in which international
relations are concerned, the President plays a dominant role.
In these matters, it is generally assumed that Congress does
not set out to tie the President's hands; if it wishes to, it
must say so in clear language. See United States v.
Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) ("It
is quite apparent that if, in the maintenance of our international
relations, embarrassment . . . is to be avoided and success .
. . to be achieved, congressional legislation which is to be
made effective through negotiation and inquiry within the international
field must often accord to the President a degree of discretion
and freedom from statutory restriction which would not be admissible
were domestic affairs alone involved."); see also
B-West Imps., Inc. v. United States, 75 F.3d 633, 636
(Fed. Cir. 1996) ("[S]tatutes granting the President authority
to act in matters touching on foreign affairs are to be broadly
construed . . . ."); Am. Ass'n of Exps. and Imps.-Textile
& Apparel Group v. United States, 751 F.2d 1239, 1247
(Fed. Cir. 1985) (stating that, in the international field, "congressional
delegations are normally given broad construction") (citing
S. P.R. Sugar Co. Trading Corp. v. United States, 334
F.2d 622, 632 (Ct. Cl. 1964)).
In this setting, when Congress has
chosen a broad and ill-defined phrase such as "satisfactorily
concluded," this court cannot say with certainty that there
is a fixed, measurable standard that limits the President's discretion.
The agreement with Italy, negotiated on the President's behalf
pursuant to the Act, consisted of six documents, covering a variety
of enforcement practices and policies to which the Italian Government
committed itself. Whether these commitments should have satisfied
the President that they would effect the immediate termination
of large-scale driftnet fishing by Italian vessels is a question
of judgment about the good faith of the Italian government, and
what is possible for the United States to demand and what will
work. The fact that there is evidence of later, continuing violations
is troubling, but the Act seems to allow for that possibility
by providing for subsequent listing of a nation whose vessels
or nationals again are in violation.
Furthermore, because of the broad
discretion that is delegated to the President by Congress in
§ 1826a(b)(3)(A), even without the added complication of
the mandamus remedy, there would be serious doubt whether a court
could review the President's determination of whether the consultations
were "satisfactorily concluded." SeeDalton v. Specter,
511 U.S. 462, 474-76, 477 (1994) ("Where a statute . . .
commits decisionmaking to the discretion of the President, judicial
review of the President's decision is not available.");
Florsheim Shoe Co. v. United States, 744 F.2d 787, 796
(Fed. Cir. 1984) ("In short, the presidential decision [in
this case] is a `multifaceted judgmental decision,' for which
there is `no law to apply.' After it is decided that the President
has congressional authority for his action, `his motives, his
reasoning, his findings of facts requiring action, and his judgment
are immune from judicial scrutiny.'").
We conclude that the trial court
was correct when it held that the question of whether consultations
were "satisfactorily concluded," and thus whether the
requirement for import sanctions was triggered, is a matter that
lies within the broad discretion of the President. Therefore,
the trial court was also correct in finding that it cannot issue
a writ of mandamus. Nothing in the facts of this case suggests
that the President acted in other than good faith, or otherwise
was in violation of his duties under the Act.
The second issue raised is whether
the Secretary of Commerce acted in violation of the Act when
he certified in 1997 that Italy had terminated large-scale driftnet
fishing. Here again the statute leaves something to be desired.
Section 102 (16 U.S.C. § 1826b) of the Act states in its
Any denial of port privileges or
sanction under section 101 [16 U.S.C. § 1826a, which includes
the import sanctions] with respect to a nation shall remain in
effect until such time as the Secretary of Commerce certifies
to the President and the Congress that such nation has terminated
large-scale driftnet fishing by its nationals and vessels beyond
the exclusive economic zone of any nation.
The Act does not explain what evidence
or circumstances should guide the Secretary in making this certification,
or guide our determination of whether the Secretary's action
is arbitrary or capricious.
The Government first attacks this
issue by arguing, presumably even if the Secretary's action was
in fact arbitrary or capricious, that the issue is now moot because
the Court of International Trade has ordered the Secretary to
identify Italy a second time, thus nullifying the previous certification.
According to the Government, Italy is currently identified, and
the statutory sanctions are in play. Therefore the court should
not address the issue further.
The Humane Society points out that
the problem with the Government's mootness argument is that it
creates the possibility of an endless series of steps, beginning
with identification of a nation whose vessels are in violation
(perhaps at the instance of the court over the Secretary's objection),
followed by a certification by the Secretary that the nation
is complying, followed by, if further violations occur, another
identification. Such a process may permit a noncomplying nation
to escape close scrutiny, and places on interested parties like
the plaintiffs the burden to constantly refile suits against
Article III of the United States
Constitution limits federal judicial power to cases or controversies.
NEC Corp. v. United States, 151 F.3d 1361, 1369 (Fed.
Cir. 1998). "If a case becomes moot it no longer presents
a justiciable controversy over which a federal court may exercise
jurisdiction." Id. "`A case is moot when the
issues presented are no longer "live" or the parties
lack a legally cognizable interest in the outcome.'" Id.
(quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).
However, a claim is not moot if that action is capable of repetition,
yet evading review. Torrington Co. v. United States, 44
F.3d 1572, 1577 (Fed. Cir. 1995). See generally 13A Charles
Alan Wright, Arthur Miller & Edward H. Cooper, Federal
Practice and Procedure § 3533.8 (2d ed. 1984) (discussing
"capable of repetition, yet evading review" exception
to mootness doctrine).
"To qualify for this exception,
the challenged action must meet two conditions." Torrington,
44 F.3d at 1577. "First, the action must `in its duration
be too short to be fully litigated prior to its cessation or
expiration.'" Id. (quoting Cambridge Lee Indus.,
Inc. v. United States, 916 F.2d 1578, 1581 (Fed. Cir. 1990)).
"Second, there must be `reasonable likelihood' that the
party `will again suffer the injury that gave rise to the suit.'"
Id. (quoting Cambridge, 916 F.2d at 1581).
In Torrington, Torrington
appealed the trial court's determination that Torrington's challenge
to the International Trade Administration's method of calculating
the cash deposit rate for imported merchandise was moot. Id.
at 1571. This court held that the trial court erred in determining
the challenge was moot because that challenge fell within the
exception to the mootness doctrine for recurring, short term
conduct. Id. at 1578. The court reasoned that the International
Trade Administration "can impose a new cash deposit rate
before interested parties can fully litigate the method of calculating
the cash deposit rate for the prior administrative review. .
. . [L]itigation cannot keep pace with the rate of administrative
reviews." Id. at 1578. The court also determined
that "a reasonable likelihood exists that Torrington-currently
an active participant in antidumping duty litigation-will face
the same cash deposit rate issue again." Id.
In a memorandum date-stamped April
28, 1997, concerning "Procedural steps under the High Seas
Driftnet Fisheries Enforcement Act," government attorneys
recognized that the Driftnet Act did not explicitly address the
situation if Italy was to continue or resume large-scale driftnet
fishing after the Secretary's certification that driftnet fishing
had ceased. The memorandum stated that it was possible to read
the Act to require a new identification of Italy under §
1826a(b)(1)(B) and a second round of consultations under §
1826a(b)(2) before the Secretary could prohibit the importation
of fish products from Italy. The memorandum also noted that such
a process would appear to be incompatible with the purpose of
the statute and could result in an annual cycle of agreements
that appear to be adequate on paper but prove to be ineffectual
We can assume that, if a plaintiff
was to challenge the Secretary's certification that a nation
had ceased driftnet fishing and brought forth adequate evidence
of persistent proscribed driftnet fishing, the Secretary would
likely identify that nation again. Because of that re-identification,
the challenge to the Secretary's prior certification would almost
always be moot under the Government's theory. Thus, the question
of the propriety of the Secretary's certification would escape
judicial review. Even the Government's attorneys recognized that
an ineffectual cycle of repetitious events could occur. We conclude
that the purpose of the Act is better effectuated by holding
that the question, whether the Secretary's certification that
a nation has ceased driftnet fishing is in accord with law, is
not rendered moot by a later re-listing or re-identification
of that nation.
On the merits, the Humane Society
argues that the Secretary's certification was based solely on
the July 1996 agreement, and that the Secretary conducted no
investigation of Italian driftnet practices. They argue further
that the Secretary relied on the Secretary of State's announcement
that an agreement had been reached, without independently scrutinizing
that agreement to determine whether it would in fact effectuate
an end to the illegal driftnet fishing. From this, the Humane
Society concludes that any certification that fails to consider
actual fishing practices must be struck down as arbitrary and
The Government acknowledges that
the Secretary's sole stated reason for certifying that Italy
has terminated large-scale driftnet fishing by its nationals
and vessels was the agreement reached with the United States
in 1996. The Government argues that this was reason enough to
conclude that Italy had terminated such fishing. The fact that
certain elements of the agreement remained to be implemented
was immaterial, according to the Government, as was the fact
that the State Department was urging Italy to pursue its enforcement
program more vigorously. With regard to the Humane Society's
allegations that illegal driftnet fishing had not ended, the
Government argues that the record indicates that, between the
conclusion of the July 1996 Agreement and January 1997, reports
of illegal driftnet fishing were limited, sporadic, and unsubstantiated.
The trial court drew a distinction
between the Secretary's decision to initially identify a nation
under section 101 (16 U.S.C. § 1826a) whose nationals or
vessels are engaged in illegal driftnet fishing, and the Secretary's
decision to certify under section 102 (16 U.S.C. § 1826b)
that a nation has terminated large-scale driftnet fishing. Humane
Soc'y of the United States v. Clinton, 44 F. Supp. 2d 260,
271 (Ct. Int'l Trade 1999). The trial court viewed the focus
in the first decision to be on the conduct of individuals and
vessels, whereas the focus in the latter was on the conduct and
intentions of the nation's government. We concur; this is a sensible
way to parse the language of the Act and to understand the differences
between the two decisions, and it illuminates the kind of inquiry
appropriate to testing the Secretary's decision.
Accordingly, the trial court looked
to the circumstances that prevailed in January 1997, when the
certification was issued. The court concluded that the evidence
supported the Secretary's determination that the agreement, though
not fully implemented, was substantially so, and that adequate
assurances had been given that it would be completed before the
commencement of the 1997 fishing season. Given the court's focus,
the fact that there may have been some individual violations
by Italian vessels would not be determinative. The trial court
concluded that in light of this analysis, it cannot be said that
the Secretary's decision was so unreasonable as to be legally
arbitrary and capricious. We concur in the trial court's analysis
and conclusions; the trial court's ruling in that regard is upheld.
In sum: (1) Neither the President
nor other executive officers are immune from suit under 28 U.S.C.
§ 1581 with regard to their compliance with the provisions
of 16 U.S.C. § 1826; the grant of jurisdiction to the Court
of International Trade under § 1581 carries with it a co-extensive
waiver of sovereign immunity. (2) The statutory standard governing
the President's determination that consultations leading to an
agreement with an identified nation have been "satisfactorily
concluded" gives the President broad discretion; it is not
a standard that comes within the reach of a mandamus action.
(3) The determination in the form of a certification by the Secretary
of Commerce that a nation has terminated the proscribed large-
scale driftnet fishing is subject to judicial review under the
statutory standard for review of such actions, focused on the
actions taken by that nation under the negotiated agreement with
the President. On the facts found by the trial court in this
case, the Secretary's determination did not violate the standard.
The judgment of the Court of International
RADER, Circuit Judge, concurs
in the result.
Judge Plager assumed senior status
on November 30, 2000.
Large-scale driftnet fishing by United
States nationals and vessels, both within the United States EEZ
and on the high seas, is prohibited by 16 U.S.C. § 1857(1)(M),
the Magnuson Fishery Conservation and Management Act.