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James Wisner v. Gary Locke

December 2, 2011

JAMES WISNER, PLAINTIFF,
v.
GARY LOCKE, SECRETARY OF THE U.S. DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, AND NATIONAL MARINE FISHERIES SERVICE, DEFENDANTS.



ORDER

This matter comes before the Court pursuant to Federal Defendants' Motion to Dismiss (Doc. # 3), filed on July 29, 2011. Pro se Plaintiff James Wisner filed his Opposition to Defendants' Motion to Dismiss (Doc. # 6) on August 30, 2011. For the reasons that follow, the Court grants the Motion.

I. Background and Procedural History

Wisner filed suit in this Court on June 10, 2011, challenging the June 3, 2011, appointment of Dr. Pamela J. Dana to the Gulf of Mexico Fishery Management Council. (Doc. # 1). Wisner asserts that Dr. Dana's appointment is contrary to the mandates of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801, et seq., which prescribes the requirements for appointments to the Gulf Council. (Id. at 1-2). Wisner further argues that Dr. Dana's appointment violates the Fourteenth Amendment to the U.S. Constitution. (Id. at 2).

Dr. Dana was appointed to fill an "at-large" seat on the Gulf Council that, Wisner alleges, should have been filled by an individual representing recreational fishermen. (Id. at ¶¶ 16, 40). Dr. Dana is designated as representing "charter fishing" on the list of nominees submitted to Defendants by Florida Governor Rick Scott on March 14, 2011. (Id. at ¶¶ 30, 34, 40). Wisner asserts that Defendants also categorize Dr. Dana as representing charter fishing. (Id. at ¶ 42). As such, Dr. Dana represents commercial interests. (Id. at ¶¶ 62-63).

Wisner argues that the Magnuson-Stevens Act requires that appointments filling open seats on the Gulf Council be made based upon the representative interests of the existing members. (Id. at 2). Florida has three voting seats on the Gulf Council, one of which is held by a member described as "scientific/other" and another held by a member categorized as "commercial." The remaining seat had been held by a member categorized as representing recreational fishing. (Id. at ¶¶ 44-48). Wisner contends that the only way to maintain a "fair and balanced" Council, as required by the Magnuson-Stevens Act, would be to fill the open seat with a nominee representing recreational fishing. (Id. at ¶¶ 25, 52-55).

Wisner asserts that Governor Scott's preferred nominee, Eugene Gorham, represents "recreational fishing." (Id. at ¶¶ 31, 37-38). Wisner also alleges that, in all previous appointments, Defendants selected the Governor's nominee based upon the "category" of the open seat. This time, however, Defendants "ignored the legal mandates" of the Magnuson-Stevens Act and selected Dr. Dana for political expediency. (Id. at ¶¶ 56-57).

Wisner describes himself as "first and foremost a recreational fisherman" representing the "fair and legal interests and voice of all 4 million plus recreational fisherman of Florida and its' [sic] multi-billion dollar recreational fishing economy." (Id. at ¶ 1). Wisner argues that he and all other recreational fishermen in Florida "will suffer severe disenfranchisement . . . from not being adequately and fairly represented" by a recreational fisherman on the Gulf Council. (Id. at ¶ 2).

Wisner seeks a declaratory judgment that Defendants violated the Magnuson-Stevens Act and the Administrative Procedure Act (APA), 5 U.S.C. § 551, et seq., and an order blocking the swearing-in of Dr. Dana.*fn1 (Id. at 22). He also seeks an order precluding the Secretary of Commerce from appointing anyone other than a nominee representing recreational fishing to fill the Gulf Council seat at issue. (Id.)

Defendants argue in their Motion to Dismiss that Wisner's complaint fails for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. # 3). Specifically, Defendants argue that there is no express or implied right of action to challenge appointments to the Council. Furthermore, Defendants assert that the United States has not waived sovereign immunity to suit with regard to Wisner's claims and that Wisner lacks standing to bring suit in this matter.

In his response to the Motion, Wisner asserts that "[t]here may be no express or implied right of action to challenge appointments to the Council but there is a right to hold the Defendants to the legal mandates" of the Magnuson-Stevens Act -- that is, to ensure a "fair and balanced" Gulf Council "to the extent practicable." (Doc. # 6 at 3). Wisner further argues that Defendants "have no immunity from clearly violating the law. The Secretary has overstepped the authority given to him by Congress and has illegally abused his discretion." (Id. at 4).

Wisner quotes § 702 of the APA, which entitles "a person suffering legal wrong because of agency action" to judicial review of such wrong. (Id. at 10). Wisner asserts that he has "suffered legal wrong because the Secretary has clearly overstepped the authority given to him by Congress." (Id. at 11).

II. Standard of Review

Federal courts are courts of limited jurisdiction; in order to establish a claim in federal court, the plaintiff must display complete diversity or raise a question of federal law. The party invoking jurisdiction bears the burden of demonstrating that the matter falls within the court's subject matter jurisdiction. Curry v. High Springs Family Practice & Diagnosis Ctr., No. 1:08-cv-00008-MP-AK, 2009 WL 3163221, at *2 (N.D. Fla. Sept. 30, 2009).

Motions to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) may attack jurisdiction facially or factually. Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). When the jurisdictional attack is facial, as it is here, the Court looks to the complaint to determine if the "plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (internal quotations and citations omitted). "On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion." Id.

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, this Court favors the plaintiff with all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). "A motion to dismiss will be denied unless it appears beyond all doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). "In the case of a pro se action, moreover, the court should construe the complaint more liberally than it would formal pleadings drafted by lawyers." Id.

However, the Supreme Court has explained that: While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and citations omitted). A plausible claim for relief must include "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Courts are not "bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).

The Court notes that its analysis is confined to the four corners of the Complaint. The Court may consider the various exhibits attached to the Complaint without converting the Motion to Dismiss into one for summary ...


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