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)
2

Michael Poon [ARGUED]

Damien M. Schiff

PACIFIC LEGAL FOUNDATION

555 Capitol Mall, Suite 1290

Sacramento, CA 95814

Counsel for Appellants

John Edward Bies [ARGUED]

U.S. DEPARTMENT OF JUSTICE

ENVIRONMENT & NATURAL RESOURCES DIVISION

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 Commerce. That power is significant. But the Council members 
3

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. THE FISHERMEN CHALLENGE

LOWERED FISHING LIMITS

A. The Magnuson-Stevens Act Regulates U.S. Fisheries 

Nearly half a century ago, Congress passed the MagnusonStevens Act to conserve and manage U.S. fisheries. 16 U.S.C. 

§1801(a)(6). The Act sets up eight Regional Fishery Management 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 governors 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 Service 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 proposes 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, partially approve, or disapprove it. §1854(a)(3). If she does nothing, 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 Council” 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 reasonable time, the Secretary can make her own plan and regulations; 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-access 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 scientific 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 fishermen could catch in that region. The Council sent that amendment plus a rule to implement it to the Secretary. After the noticeand-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 fishermen who fish in those waters. Fewer fish to catch means lower 

profits, so they sued the government. They claim that, by proposing 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 
6

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 concluded 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 FISHERMEN HAVE STANDING

To invoke federal jurisdiction, a plaintiff must have standing 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-injury’ ” 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 reasonable 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 amendment, 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 violation. 

III. THE COUNCIL MEMBERS ARE

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 Departments” of the executive branch. Id. But these procedures need

not apply to hiring mere employees—“lesser functionaries subordinate 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 (quoting 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 discretion 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 direct[]” 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 advisory. 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 regularly vetoed colonial legislatures’ acts, restricting local government and angering the Founding generation. Bernard Bailyn, 
10

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 colonists began their list of grievances against the King by objecting that he “ha[d] refused his Assent to Laws, the most wholesome and necessary for the public good” and had blocked governors from passing needed laws. The Declaration of Independence ¶¶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. Reinstein, 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 separation of powers.” The Federalist No. 73, at 443 (Alexander 

Hamilton) (Clinton Rossiter ed., 1961) (first quotation); Gordon S. Wood, The Creation of the American Republic, 1776–

1787, at 553 (1998) (second one). To reassure colonists, Hamilton 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 Examiner, No. 4 (June 11, 1788), reprinted in 5 The Complete AntiFederalist 196 (Herbert J. Storing ed., 1981) (5.14.38). And a 
11

future President rightly described it as “beyond all comparison, 

[the President’s] most formidable prerogative.” Woodrow Wilson, 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 people 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 President 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 identifying 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 disapprove a plan or amendment for any reason. To avoid that constitutional issue, we adopt the government’s reasonable reading. 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. 
13

Second, there is the consultation requirement. Before revising any proposed regulations, the Secretary must consult with 

the Council. §1854(b)(3). The fishermen worry that the Council could just refuse to consult and thus force its proposed regulations to become law. The government denies that the law 

works that way; all the Secretary need do is solicit the Council’s views and give it a chance to respond. To avoid that constitutional issue, we again adopt the government’s reasonable 

reading. The consultation requirement does not give the Council 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 Secretary 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 Council authority is not significant either.

IV. COUNCIL MEMBERS ARE PRINCIPAL 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 supervised at some level by others who were appointed by [the] President[].” Edmond v. United States, 520 U.S. 651, 663 (1997).
14

Officers with unreviewable authority are principal officers. 

Arthrex, 594 U.S. at 23.

Council members have unreviewable authority. “[N]o principal 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 President and confirmed by the Senate, but they are not. Their appointments are unconstitutional.

V. THE REMEDY IS TO SEVER THE

UNCONSTITUTIONAL POWERS

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 problematic 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 provision 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 Fisheries 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 
15

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 Council’s significant authority.

Without those powers, the Council members are mere employees 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 fishermen, relieving the Council of its significant authority. 
1

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[.]”). 
2

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. 
3

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.