Raymond Lofstad; Gus Lovgren v. Gina Raimondo

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 24-1420
_______________
RAYMOND LOFSTAD; GUS LOVGREN,
Appellants
v.
GINA RAIMONDO, in her official capacity as Secretary of
the United States Department of Commerce; JANET COIT,
in her official capacity as Assistant Administrator of the
National Marine Fisheries Service; NATIONAL MARINE
FISHERIES SERVICE
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3:22-cv-07360)
District Judge: Honorable Robert Kirsch
_______________
Argued: July 10, 2024
Before: BIBAS, FREEMAN, and RENDELL, Circuit Judges
(Filed: September 25, 2024)

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Michael Poon [ARGUED]
Damien M. Schiff
PACIFIC L EGAL FOUNDATION
555 Capitol Mall, Suite 1290
Sacramento, CA 95814
Counsel for Appellants
John Edward Bies [ARGUED]
U.S. D EPARTMENT OF JUSTICE
E NVIRONMENT & N ATURAL RESOURCES D IVISION
P.O. Box 7415
Washington, DC 20044
Counsel for Appellees
J. Timothy Hobbs, Jr.
K&L Gates
501 Commerce Street, Suite 1500
Nashville, TN 37203
Counsel for Amicus Seafood Harvesters of America in
Support of Appellee
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
The buck stops with the President—but not when unelected
officials get a veto. Under a federal fishing law, a Regional
Council can veto some actions taken by the Secretary of Com-
merce. That power is significant. But the Council members

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were never appointed by the President, as the Constitution
requires. Two fishermen rightly challenge this scheme. The
remedy, we hold, is to sever the pocket-veto powers so the
Council plays only an advisory role.
I. T HE F ISHERMEN C HALLENGE
LOWERED F ISHING LIMITS
A. The Magnuson-Stevens Act Regulates U.S. Fisheries
Nearly half a century ago, Congress passed the Magnuson-
Stevens Act to conserve and manage U.S. fisheries. 16 U.S.C.
§ 1801(a)(6). The Act sets up eight Regional Fishery Manage-
ment Councils. § 1852. One of them, the Mid-Atlantic Council,
oversees the waters from New York down through Virginia.
§ 1852(a)(1)(B). Of its twenty-one voting members, state gov-
ernors appoint seven, the Secretary of Commerce appoints
thirteen from a pool of nominees submitted by state governors,
and the regional director of the National Marine Fisheries Ser-
vice sits in the last spot. § 1852(b)(1). None is appointed by the
President or confirmed by the Senate.
Each Council prepares fishery management plans and pro-
poses amendments to them. § 1852(h)(1). These plans must
include conservation measures to prevent overfishing and keep
U.S. fisheries healthy and stable in the long term. § 1853(a)(1).
To prevent overfishing, each plan must specify how to set each
fishery’s annual catch limits. §§ 1852(h)(6), 1853(a)(15); 50
C.F.R. § 600.310(f)(1), (4); see also Oceana, Inc. v. Coggins,
606 F. Supp. 3d 920, 923–24 (N.D. Cal. 2022). Plans can also
delegate managing fisheries to states. § 1856(a)(3)(B). When
they do, the relevant state may adopt and enforce regulations
that are “consistent with” the plan. Id.

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Once a Council drafts a plan or amendment, the Secretary
of Commerce reviews it. 16 U.S.C. § 1854(a)(1). After sixty
days for public comments, she has thirty days to approve, par-
tially approve, or disapprove it. § 1854(a)(3). If she does noth-
ing, the plan or amendment takes effect. Id. If she disapproves
it, she must explain how it conflicts with applicable law and
send it back to the Council. Id. If the Council fails to submit a
revised plan or amendment, the Secretary can craft her own.
§ 1854(c)(1).
Plans are implemented by regulation. § 1851(a). First, the
Council proposes regulations. § 1853(c). (Among other things,
these regulations set annual catch limits for fisheries.) Then,
after letting the public comment, the Secretary decides whether
to promulgate or reject them. § 1854(b)(1), (3). She can also
revise proposed regulations after “consult[ing] with the Coun-
cil” and explaining any changes in the Federal Register.
§ 1854(b)(3). But nothing in the statute requires the Council’s
approval for those changes. On the contrary, if the Secretary
disapproves a plan or the Council fails to make one in reason-
able time, the Secretary can make her own plan and regula-
tions; the Council may only advise on these. §§ 1854(c),
1855(d).
Each Council can also block (or pocket veto) three of the
Secretary’s actions:
• First, it can block setting limits on who can fish in
each fishery. The Secretary can set up a limited-ac-
cess fishing system, but only if a majority of the
Council approves it. §§ 1854(c)(3), 1802(26)–(27).

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• Second, it can block delegating fishery management
to a state. The Secretary can delegate that power to
some states only if three-quarters of the Council
approves it. § 1856(a)(3)(B).
• Last, it can block repealing a plan. The Secretary can
repeal a plan only if three-quarters of the Council
approves. § 1854(h).
The Councils also have various advisory functions. They
hold public hearings, make periodic reports, hear from scien-
tific and statistical experts, and recommend what research is
needed. § 1852(g)–(h).
B. After the Council Lowered Fishing Limits,
the Fishermen Sued
In 2022, the Mid-Atlantic Council approved an amendment
to its fishery-management plan, lowering the amount of scup,
summer flounder, and black sea bass that commercial fisher-
men could catch in that region. The Council sent that amend-
ment plus a rule to implement it to the Secretary. After the notice-
and-comment period, the Secretary approved the amendment
and promulgated the rule. Amendment 22 to Summer Flounder,
Scup, and Black Sea Bass Fishery Management Plan, 87 Fed.
Reg. 68,925 (Nov. 17, 2022) (codified at 50 C.F.R. pt. 648).
Raymond Lofstad and Gus Lovgren are commercial fisher-
men who fish in those waters. Fewer fish to catch means lower
profits, so they sued the government. They claim that, by pro-
posing the amendment and its implementing rule, the Council’s
members acted as “Officers of the United States.” U.S. Const.
art. II, § 2, cl. 2. And because the members were not properly

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appointed by the President or the head of a department, they
claim, the rule should be set aside.
The District Court disagreed. It reasoned that because the
Council merely makes suggestions and proposals, Council
members do not exercise “significant authority.” App. 40–43
(quoting Lucia v. SEC, 585 U.S. 237, 245 (2018)). So it con-
cluded that they are not “Officers of the United States.” Id.
(quoting U.S. Const. Art. II, § 2, cl. 2). The court denied the
fishermen’s motion for summary judgment and instead granted
the government’s cross-motion. The fishermen now appeal.
We review the District Court’s grant of summary judgment
de novo. Tundo v. County of Passaic, 923 F.3d 283, 286 (3d
Cir. 2019). The parties agreed that no discovery was needed
and that the court could decide the case on the administrative
record. The only question is a purely legal one: whether the
government or the fishermen are “entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The fishermen are.
The merits issue, in Parts III and IV, is whether Council
members are officers of the United States. (They are.) They
were not properly appointed, so the remedial issue in Part V is
what to do about that problem. (Sever the unconstitutional
powers that Council members exercise.) First, though, in Part
II we must confirm that the fishermen have standing to bring
this suit. (They do.)
II. THE F ISHERMEN HAVE STANDING
To invoke federal jurisdiction, a plaintiff must have stand-
ing to sue. He “must have (1) suffered an injury in fact, (2) that
is fairly traceable to the challenged conduct of the defendant,

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and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
The fishermen have standing. First, a “litigant need not
show direct harm or prejudice caused by an Appointments
Clause violation … . Such harm is presumed.” Cirko v. Comm’r
of Soc. Sec., 948 F.3d 148, 154 (3d Cir. 2020). What is more,
the fishermen show evidence of two injuries: For one, they
have enough evidence at this stage for “ ‘a here-and-now-in-
jury’ ” because they claim that they were subject to “an agency
… wielding authority unconstitutionally.” Axon Enter., Inc. v.
FTC, 598 U.S. 175, 189, 191 (2023) (quoting Seila L. LLC v.
CFPB, 591 U.S. 197, 212 (2020)). They argue that the Council
members were appointed improperly, making all their actions
(like the plan and any amendments to it) unlawful. For another,
they allege that the amendment cost them money. TransUnion
LLC v. Ramirez, 594 U.S. 413, 425 (2021). They usually catch
summer flounder and black sea bass up to or near the annual
catch limits. By lowering those limits, the amendment reduces
how many fish they may catch and how much money they
make. So the fishermen have shown enough of an injury.
Second, their claimed injuries trace back to the Council
members’ appointments. They say that without a properly
appointed Council, there is no plan; and without a plan (or a
rejected plan or the Council’s failure to make one in a reason-
able time), the Secretary cannot make regulations. §§ 1853(c),
1854(a)(1). Specifically, the Council proposed the amendment;
the Secretary accepted it without change and then promulgated
it as a regulation. Had the Council never proposed the amend-
ment, the Secretary neither would have accepted it nor made it
a regulation. Third, we could remedy those injuries by undoing

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the amendment and its implementing regulation. That is
enough for standing for an alleged Appointments Clause vio-
lation.
III. T HE C OUNCIL MEMBERS A RE
OFFICERS OF THE UNITED STATES
The Constitution specifies procedures for appointing some
federal officials, called “Officers of the United States.” U.S.
Const. art. II, § 2, cl. 2. Principal officers must be nominated
by the President and confirmed by the Senate. Id. “[I]nferior
Officers” may, with Congress’s approval, be appointed by “the
President alone, … the Courts of Law, or … the Heads of Depart-
ments” of the executive branch. Id. But these procedures need
not apply to hiring mere employees—“lesser functionaries sub-
ordinate to officers of the United States.” Buckley v. Valeo, 424
U.S. 1, 126 n.162 (1976) (per curiam).
To distinguish officers from employees, the Supreme Court
has given us two guideposts. First, employees’ duties may be
merely “occasional or temporary,” while officers’ duties must
be “continuing and permanent.” Lucia, 585 U.S. at 245 (quot-
ing United States v. Germaine, 99 U.S. 508, 511–12 (1879)).
As the government did not dispute, Council members’ duties
are continuing.
Second, officers must “exercis[e] significant authority” under
federal law. Id. (quoting Buckley, 424 U.S. at 126). That inquiry
turns on how much “power an individual wields in carrying out
his assigned functions.” Id. Having significant duties and dis-
cretion to carry them out is significant authority. Freytag v.
Comm’r, 501 U.S. 868, 881–82 (1991). Power akin to a federal
judge’s also suffices. Id.; Lucia, 585 U.S. at 246. So do “broad

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administrative powers” to make rules, issue advisory opinions,
and decide who is eligible to get funds and to run for office
without day-to-day supervision. Buckley, 424 U.S. at 140–41.
Our inquiry also turns on whether another part of the federal
executive, legislative, or judicial branch can “control or di-
rect[ ]” how an official exercises her powers. Id. at 126 n.162.
The government argues that the Council’s role is purely
advisory. And the fishermen agree that advisory powers are not
enough. To be sure, many of the Council’s powers are advi-
sory. But we must take each power on its own. United States v.
Arthrex, 594 U.S. 1, 24 (2021) (plurality opinion). As with
many poisons, a little unconstitutional power is deadly. And
some of the Council members’ powers go well beyond advice:
They can block some actions by the Secretary of Commerce.
Because those powers are significant, the Council members are
officers, not just employees.
A. The Council’s Pocket-Veto Powers Are
Significant Authority
The Council can block the Secretary of Commerce from
acting in three situations. The Secretary must get its approval
before adopting a limited-access fishery system, delegating
fishery management to a state, or repealing a plan.
§§ 1854(c)(3), (h), 1856(a)(3)(B). By withholding their assent,
Council members can pocket veto those actions.
The Founders understood the veto power’s significance.
The King of England could veto Parliament’s laws. 1 William
Blackstone, Commentaries *154–55. Royal governors regu-
larly vetoed colonial legislatures’ acts, restricting local govern-
ment and angering the Founding generation. Bernard Bailyn,

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The Origins of American Politics 67–69 (1968); Edward
Campbell Mason, The Veto Power: Its Origin, Development
and Function in the Government of the United States (1789–
1889) § 7, at 17 (1890). In declaring independence, the colo-
nists began their list of grievances against the King by object-
ing that he “ha[d] refused his Assent to Laws, the most whole-
some and necessary for the public good” and had blocked gov-
ernors from passing needed laws. The Declaration of Inde-
pendence ¶¶ 3–4 (U.S. 1776). Independence would change all
that.
After freeing themselves from the Crown, the Founders
refused to give any American official an English-style absolute
veto. 2 Joseph Story, Commentaries on the Constitution of the
United States §§ 878–79, at 343–45 (1833); Robert J. Rein-
stein, The Limits of Executive Power, 59 Am. U. L. Rev. 259,
278 (2009). Instead, the Constitution gave the President only a
qualified veto, letting two-thirds of Congress override it. U.S.
Const. art. I, § 7, cls. 2–3. The Founders adopted it as a check
on “improper laws” and “a device to maintain the proper sepa-
ration of powers.” The Federalist No. 73, at 443 (Alexander
Hamilton) (Clinton Rossiter ed., 1961) (first quotation); Gor-
don S. Wood, The Creation of the American Republic, 1776–
1787, at 553 (1998) (second one). To reassure colonists, Ham-
ilton insisted that the president would use his veto only “with
great caution.” The Federalist No. 73, at 444.
Even so, the veto is a fearsome power. Opponents of the
Constitution fretted that the veto would put the President above
the law, making him another king. See, e.g., Impartial Exam-
iner, No. 4 (June 11, 1788), reprinted in 5 The Complete Anti-
Federalist 196 (Herbert J. Storing ed., 1981) (5.14.38). And a

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future President rightly described it as “beyond all comparison,
[the President’s] most formidable prerogative.” Woodrow Wil-
son, Congressional Government: A Study in American Politics
52 (1885). The mere existence of the veto power may shape
legislation by deterring expansive measures that might provoke
it. See The Federalist No. 73, at 446.
The Council’s pocket-veto power is especially significant
because it undermines the democratic chain of command. The
Constitution trusts the President with significant powers, like
the veto, because he is elected and accountable to the voters.
Executive officers below the President are not. So they must
be “accountab[le] to the public through a clear and effective
chain of command down from the President, on whom all peo-
ple vote.” Arthrex, 594 U.S. at 11 (internal quotation marks
omitted).
The Council’s pocket-veto powers thwart that chain of
command. The Council need not reflect the President’s views
because it is an advisory body. But the Secretary of Commerce,
who heads the Department of Commerce, answers to the Pres-
ident and the people. And Council members can refuse to let
her set up limited-access fisheries, delegate to states, or repeal
a plan. By blocking her actions, the Council wields significant
authority. And no one can override the Council’s pocket veto
(unlike the President’s limited veto). That is enough to make
Council members officers, not employees.
B. The Council’s Other Challenged Powers Are
Not Significant
The fishermen also challenge three other Council powers,
but none of them counts as significant authority. First, there is

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the Council’s power to propose plans and amendments. When
rejecting a plan or amendment, the Secretary must identify and
explain “the applicable law with which the plan or amendment
is inconsistent.” § 1854(a)(3)(A). The fishermen claim that the
Secretary may disapprove a plan or amendment only by iden-
tifying a specific law with which it conflicts—not for moral,
cultural, environmental, or other reasons. But this provision
does not expressly condition disapproval on a conflict with
law, so the government argues that the Secretary may disap-
prove a plan or amendment for any reason. To avoid that con-
stitutional issue, we adopt the government’s reasonable read-
ing. Gomez v. United States, 490 U.S. 858, 864 (1989); Amy
Coney Barrett, Substantive Canons and Faithful Agency, 90
B.U. L. Rev. 109, 138–39 (2010). On this reading, the buck
stops with the Secretary (and thus the President). Because she
may disapprove plans and amendments for any reason, the
Council’s mere power to propose them is not significant.
The fishermen hint that a Council’s plan delegating fishery
management to a state under § 1856(a)(3)(B) could “take effect”
under § 1854(a)(3) if the Secretary fails to act within thirty days.
They also suggest that such a plan could have legal force absent
any federal regulations because the state could regulate and
enforce the plan itself. In that situation, the Council’s plan
would have legal effect without the Secretary’s approval. Yet
the fishermen have not properly developed this argument on
appeal. Rather than raise it in their opening brief, they waited
until oral argument, so they forfeited it. Ghana v. Holland, 226
F.3d 175, 180 (3d Cir. 2000). Thus we reserve judgment on
whether Sections 1854(a)(3) and 1856(a)(3)(B) could combine
to create significant authority.

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Second, there is the consultation requirement. Before revis-
ing any proposed regulations, the Secretary must consult with
the Council. § 1854(b)(3). The fishermen worry that the Coun-
cil could just refuse to consult and thus force its proposed reg-
ulations to become law. The government denies that the law
works that way; all the Secretary need do is solicit the Coun-
cil’s views and give it a chance to respond. To avoid that con-
stitutional issue, we again adopt the government’s reasonable
reading. The consultation requirement does not give the Coun-
cil a back door to force its proposals into law.
Finally, there is the emergency-regulations power. If the
Council finds an emergency and votes unanimously, “the Sec-
retary shall promulgate emergency regulations or interim
measures … to address the emergency or overfishing.”
§ 1855(c)(2)(A). The fishermen stress that the word “shall”
requires the Secretary to act. But the Council cannot force the
Secretary to take any particular action. And the Secretary can
and does block unanimous votes by having her designee (the
Regional Director) vote against all such measures. This Coun-
cil authority is not significant either.
IV. C OUNCIL M EMBERS ARE P RINCIPAL OFFICERS
The Council members are not only officers, but principal
officers. To decide whether an officer is principal or inferior,
courts often consider whether the officers have power to make
final decisions for the United States. Arthrex, 594 U.S. at 13–
14. Inferior officers are those “whose work is directed and super-
vised at some level by others who were appointed by [the] Pres-
ident[ ].” Edmond v. United States, 520 U.S. 651, 663 (1997).

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Officers with unreviewable authority are principal officers.
Arthrex, 594 U.S. at 23.
Council members have unreviewable authority. “[N]o prin-
cipal officer at any level within the Executive Branch directs
and supervises” Council members’ pocket vetoes. Id. at 14
(cleaned up). On the contrary, they exercise their pocket vetoes
over a principal officer: the Secretary of Commerce. Thus, they
are principal officers. They should be appointed by the Presi-
dent and confirmed by the Senate, but they are not. Their appoint-
ments are unconstitutional.
V. T HE R EMEDY IS TO SEVER THE
U NCONSTITUTIONAL P OWERS
The fishermen ask us to invalidate the amendment. But we
need not go so far. When a statute is constitutionally flawed,
“we try to limit the solution to the problem, severing any prob-
lematic portions while leaving the remainder intact.” Free Enter.
Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 508 (2010)
(internal quotation marks omitted). Even though this statute has
no severability clause, we can sever an unconstitutional provi-
sion unless Congress evidently would not have passed the
remaining parts without the invalid ones. Id. at 509. To figure
this out, we look at the statute’s text and historical context. Id.
Even if we knock out the pocket vetoes, the statute remains
“fully operative.” Id. (internal quotation marks omitted). The
Council’s “most significant responsibility” is drafting proposed
plans; that duty remains untouched. NRDC v. Nat’l Marine Fish-
eries Serv., 71 F. Supp. 3d 35, 40 (D.D.C. 2014) (K.B. Jackson,
J.). What is more, the government conceded at argument that
these pocket-veto provisions are rarely used and that severing

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them would not disrupt the statutory scheme. So we will sever
the pocket-veto powers in Sections 1854(c)(3), 1854(h), and
1856(a)(3)(B). Those severances suffice to remove the Coun-
cil’s significant authority.
Without those powers, the Council members are mere employ-
ees who fall outside the Appointments Clause. They did not use
their unconstitutional powers to enact or tweak the amendment
in this case. Their advisory role in proposing the amendment
plus its implementing regulation was proper.
* * * * *
Executive officials who have significant authority must be
properly appointed. Because the Council members were not,
we sever the pocket-veto provisions that gave them significant
authority. Without those powers, the Council members are no
longer officers but rather employees. As employees, they need
not be appointed by the President or Secretary. We will thus
reverse the District Court’s order granting summary judgment
for the government and instead render judgment for the fisher-
men, relieving the Council of its significant authority.

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Lofstad v. Raimondo, No. 24-1420
RENDELL, Circuit Judge, dissenting:
I appreciate the majority’s view that the councils do
important work and can, in certain instances, block or cause
action by the Secretary. But I wrestle with whether the power
they exercise really equates to “significant authority.”
“Authority,” perhaps, but “significant;” I am not so sure.
“Significant Authority,” to me, should be reserved for those
who exercise executive power. And, as the District Court
concluded, the power to actually promulgate regulations is
where the rubber meets the road. The Secretary does that, not
the Councilmembers.
The caselaw does not help us discern whether the
presidential appointment principles really “fit” here.1 We are
1 The jurisprudence on who counts as an Officer for purposes
of the Appointments Clause is limited to commissioners with
significant authority in overseeing elections and special judges
with the ability to issue final decisions in tax and SEC cases
without review. Buckley v. Valeo, 424 U.S. 1 (1976); Freytag
v. Comm’r, 501 U.S. 868 (1991); Lucia v. SEC, 585 U.S. 237
(2018). I view those roles as a far cry from the
Councilmembers’, and as wielding far more discretion and
power. And the Supreme Court has admitted its guidance is not
particularly helpful. See Lucia, 585 U.S. at 245-46 (“The
standard is no doubt framed in general terms, tempting
advocates to add whatever glosses best suit their argument. . . .
And maybe one day we will see a need to refine or enhance the
test Buckley set out so concisely. But that day is not this
one[.]”).

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in uncharted territory. And the consequences of reaching the
conclusion that the majority reaches are huge, upending a
scheme that has existed and functioned effectively for years, as
the amicus points out.2 The majority does a creditable job of
avoiding that result, but does so, I fear, by gutting the powers
given the Councils by Congress. I wonder whether we really
should be doing this. The cases in which we have explored this
failsafe tactic seem to me to be less invasive.3
The other hesitancy I face is a pragmatic one. There are
118 voting members of the eight councils. They are chosen by
diverse appointers based on unique expertise that qualifies
them to assist the Secretary in this specific area, with special
scientific and economic ramifications. They are not to carry out
2 “Appellants’ requested relief is drastic, would needlessly
scrap the system for managing ocean fisheries that has been in
place for nearly 50 years, would jeopardize the health of ocean
fisheries, and would cause massive uncertainty and economic
losses.” Br. of Seafood Harvesters of America as Amicus
Curiae, ECF No. 26 at 23.
3 While we should “use a scalpel rather than a bulldozer” in
curing constitutional defects, the majority’s scalpel cuts too
deeply. Seila L. LLC v. CFPB, 591 U.S. 197, 237 (2020).
“Constitutional avoidance is not a license to rewrite Congress’s
work to say whatever the Constitution needs it to say in a given
situation.” Id. at 230. In Seila Law, the remedy was quite
simple: the offending tenure restriction could be severed
readily from the Dodd-Frank Act while leaving the CFPB’s
structure and duties fully operative and intact. Id. at 235. But
here, the majority’s cure excises precisely what Congress gave
the Councils authority to do.

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policy of the President as such. How many other executive
bodies are there that advise and exercise some authority
regarding matters requiring special expertise? Do we really
believe each of these members of the councils need to be
appointed by the President and confirmed by the Senate? This
seems unwieldy, cumbersome, and fraught with potential
political wrangling.
On balance, I would affirm the District Court’s order as
I believe that the buck stops with the Secretary, not the
Councils, and we should avoid rewriting the legislative
scheme.

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