Medeiros v. Atlantic States Mari

United States Court of Appeals
For the First Circuit

No. 04-1841

STEPHEN P. MEDEIROS,

Plaintiff, Appellant,

v.

FREDERICK J. VINCENT, INTERIM DIRECTOR OF THE RHODE ISLAND
DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, AND
ATLANTIC STATES MARINE FISHERIES COMMISSION,

Defendants, Appellees,

and

UNITED STATES OF AMERICA,

Intervenor, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Boudin, Chief Circuit Judge,

Campbell and Cyr, Senior Circuit Judges.
 Robert J. Caron for appellant.
Paul A. Lenzini, with whom Gary Powers, Department of
Environmental Management, and Terence Tierney, Department of
Attorney General, were on brief for appellees.
R. Justin Smith, Environmental and Natural Resources Division,
U.S. Department of Justice, with whom Thomas L. Sansonetti,
Assistant Attorney General, Andrew Mergen, and John A. Bryson, U.S.
Department of Justice, were on brief for intervenor, appellee.

December 12, 2005

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 CYR, Senior Circuit Judge. Stephen P. Medeiros appeals

from a district court order dismissing the complaint he filed

against the Rhode Island Department of Environmental Management

(DEM), the Atlantic States Marine Fisheries Commission (ASMFC), and

the United States, challenging the constitutionality of a DEM

regulation restricting the number of lobsters which may be

harvested by methods other than lobster traps. We affirm the

district court order.

I

BACKGROUND

In 1942, with congressional approval, fifteen Atlantic

coast states, as well as the District of Columbia, entered into a

compact pursuant to which the signatories would exercise joint

regulatory oversight of their fisheries (viz., the area within

three miles of their respective shorelines), primarily through the

development of interstate fishery management plans ("IFMPs"). Each

signatory is represented on the Atlantic States Marine Fisheries

Commission (ASMFC). 16 U.S.C. § 5102(3).

Until 1993, the decision to participate in any IFMP was

entirely voluntary. As compliance was spotty, Congress enacted the

Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. §§

5101-5108 (1993) ("ACFCMA"), which permits the ASMFC (i) to

identify which IFMP terms it considers “necessary,” id. §

5104(a)(1), and (ii) to require that all member states adopt and

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comply with these terms. Id. § 5101(a)(4) (“The responsibility for

managing Atlantic coastal fisheries rests with the States, which

carry out a cooperative program of fishery oversight and management

through the Atlantic States Marine Fisheries Commission. It is the

responsibility of the Federal Government to support such

cooperative interstate management of coastal fishery resources.”).

Should a member refuse to comply, the ASMFC may contact the

Secretary of Commerce, id. § 5105(b), who makes a plenary

determination as to whether (i) the particular IFMP term is indeed

“necessary,” and (ii) the member state is in noncompliance. Id. §

5106(a). Should the Secretary determine that the member state is

not complying with an essential term, a moratorium on fishing may

be imposed in the offending member state’s coastal waters. Id. §

5106(c).

Approximately four-fifths of all Atlantic lobsters are

harvested within the territorial waters of the Atlantic states

(viz., within three miles of the shoreline), and an even greater

percentage by means of lobster traps. A small percentage – for

example, in Rhode Island, 1.62 percent – is harvested by trawling

and netting. In December 1997, ASMFC promulgated an IFMP

containing Amendment 3, after acquiring evidence suggesting that,

despite years of heavy regulatory oversight, the Atlantic lobster

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population was still being overfished.1 "Overfishing" is defined

as "a rate or level of fishing mortality that jeopardizes the

capacity of a fishery to produce the maximum sustainable yield on

a continuing basis." Id. § 1802(29). Specifically, ASMFC

determined that (i) ninety percent of recently harvested lobsters

were young “recruits” which had just molted into the minimum legal

size permitting their capture, and (ii) the loss of a population of

more mature lobsters had resulted in a drastic diminution in

lobster-egg production.

Thus, Amendment 3 promulgated a variety of “necessary”

measures to ward off an impending catastrophic collapse of the

Atlantic lobster stock. As concerns harvesting by lobster trap,

Amendment 3 reduced the number of traps allowed on a vessel, as

well as the trap capacity and the size of the trap vents designed

to allow smaller lobsters to escape. With respect to non-trap

lobstering methods, such as trawling and netting, Amendment 3

limited the daily harvest of lobsters to 100 per vessel, or 500 for

vessels undertaking fishing expeditions of five days or more. The

Rhode Island Marine Fisheries Council (RIMFC) duly implemented the

latter provision of Amendment 3 as RIMFC Regulation 15.18. In June

1999, Medeiros was indicted in Rhode Island superior court after

1
As the history of Atlantic lobster regulation is complex, we
confine the present discussion to the facts most material to this
appeal. A more comprehensive historical overview may be found in
Campanale & Sons, Inc. v. Evans, 311 F.3d 109, 112-14 (1st Cir.
2002).

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his otter trawler landed 131 lobsters. The case was ultimately

dismissed.

Some state officials were less than enthusiastic about

Amendment 3. Mark Gibson, a former DEM official, and Jan H.

Reitsma, a former director of DEM, stated that Amendment 3 was

discriminatory and resulted in no genuine conservation benefit. In

June 2000, over the strong objection of the Governor and the DEM,

RIMFC repealed Regulation 15.18, and, pursuant to the Atlantic

Coastal Act, ASMFC notified the Secretary of Commerce that Rhode

Island was no longer in compliance with this “necessary” IFMP

requirement. The Secretary agreed and announced an intention to

impose a moratorium. However, in November 2000, Rhode Island

reinstated Regulation 15.18, and stripped the RIMFC of its

authority to rescind the ASMFC regulations. RIMFC is now a purely

advisory body. See R.I. Gen. Laws § 20-3-2 (2001). Consequently,

the moratorium never went into effect.

Medeiros submitted the instant complaint in state court

against the ASMFC, the DEM, and the United States, alleging that

Amendment 3 (as adopted through RIMFC Regulation 15.18) violates

his rights to equal protection and substantive due process, and

constitutes an unlawful “commandeering” of Rhode Island’s

legislative prerogatives under the Tenth Amendment. The defendants

removed the case to the United States District Court for the

District of Rhode Island. Thereafter, pursuant to cross-motions

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for summary judgment the district court dismissed all counts in the

complaint. Medeiros v. Atlantic States Marine Fisheries Comm’n,

327 F. Supp. 2d 145 (D.R.I. 2004). Medeiros appeals.

II

DISCUSSION

Cross-motions for summary judgment are reviewed de novo,

and all facts, as well as reasonable inferences therefrom, are

reviewed in the light most favorable to the respective non-moving

parties, with a view to determining whether (i) a genuine issue

exists as to any material fact and (ii) either moving party is

entitled to judgment as a matter of law. See Barnes v. Fleet Nat’l

Bank, 370 F.3d 164, 170 (1st Cir. 2004).

A. The Equal Protection Claim

First, Medeiros claims that Amendment 3 and Regulation

15.18 violate the Equal Protection Clause, in that their

discrimination between trap and non-trap lobstering methods bears

no rational relationship to the asserted governmental purpose: to

conserve the dwindling Atlantic lobster stock.

Legislation or regulation which neither employs a suspect

classification2 nor impairs fundamental rights,3 will survive

2
Medeiros concedes that, unlike a racial or ethnic minority,
for example, see Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 n.4
(1976), non-trap lobstermen are not a “suspect class” for equal
protection purposes. See Mills v. State of Me., 118 F.3d 37, 47
(1st Cir. 1997) (defining “suspect class” as “a class of persons
characterized by some unpopular trait or affiliation . . . [that
would] reflect any special likelihood of bias [against them] on the

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constitutional scrutiny, provided the remedy is “rationally

related” to a legitimate governmental purpose. See Wine and

Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 53 (1st Cir.

2005); Citizens Awareness Network, Inc. v. United States, 391 F.3d

338, 355 (1st Cir. 2004). Remedial choices made by the appropriate

legislative or regulatory body are invested with a strong

presumption of validity, rebuttable only where the party

challenging the legislation or regulation can establish that “there

exists no fairly conceivable set of facts that could ground a

rational relationship between the challenged classification and the

government's legitimate goals.” See Wine and Spirits, 418 F.3d at

54 (citation omitted).

Regulation 15.18 was designed to ameliorate the

part of the ruling majority”) (citation omitted).
3
At oral argument on the summary judgment motion, Medeiros
intimated that Amendment 3 and Regulation 15.18 infringe upon his
fundamental right to pursue the livelihood or occupation of his
choosing: in this case, lobstering. Both for equal protection and
substantive due process purposes, however, see infra Section II.B,
it is well settled that no such fundamental right exists, and that
legislation or regulation impinging upon such a right therefore is
subject only to “rational basis” review, rather than “strict
scrutiny.” See, e.g., Dittman v. California, 191 F.3d 1020, 1031
n.5 (9th Cir. 1999); N.Y. State Trawlers Ass’n v. Jorling, 16 F.3d
1303, 1311 (2d Cir. 1994); Whittle v. United States, 7 F.3d 1259,
1262 (6th Cir. 1993); Sisk v. Tex. Parks and Wildlife Dep’t, 644
F.2d 1056, 1058 n.5 (5th Cir. 1981) (“[F]ishing is not a
fundamental right nor is the class of commercial fishermen a
suspect class.”); Cherenzia v. Lynch, 847 A.2d 818, 823-24 (R.I.
2004); cf. Piper v. Supreme Court of N.H., 723 F.2d 110, 112 (1st
Cir. 1983), aff’d, 470 U.S. 274 (1985) (noting that right to make
a living may be “fundamental” under the Privileges and Immunities
Clause).

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unprecedented overfishing of Atlantic lobster stocks, and the

resulting diminution in the overall vitality of those stocks. The

defendants proffer two principal rationales for the differing

treatment which Amendment 3 and Regulation 15.18 prescribe for trap

and non-trap lobstering.

Traps are a targeted, passive method for harvesting

lobster. The lobster trap rests passively on the ocean floor

awaiting the lobsters, which come for bait that is designed to

attract nothing but lobsters. Normally, newly molted lobsters, or

“soft shedders,” are not caught in traps, in part because the vents

in the traps permit smaller lobsters to escape from the trap.

Unless the smaller lobsters can escape, there cannot be a

sufficient population of mature lobsters capable of egg production,

and the ASMFC’s goal of rebuilding the Atlantic lobster stocks

would be threatened.

In contrast, non-trap methods, e.g., bottom trawling, are

both non-passive and non-selective. For the most part, the lobster

is a coincidental and insignificant by-catch for trawlers fishing

primarily for finfish. The trawler nets actively dredge the ocean

floor, catching whatever species may be in their path and large

enough to be caught in the mesh, and the act of trawling the bottom

may cause significant shell damage to the vulnerable population of

soft shell lobsters. The relatively small openings required in

trawler nets in order to catch most finfish species also lead to

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the capture of numerous soft shedders, which likewise causes a

diminution in overall egg production. For instance, seventy

percent of the 131 lobsters seized from the Medeiros vessel in June

1999 were soft shedders, many of which were moribund.

Given these inherent differences between the trap and

non-trap methods, these defendants opted to impose different

limitations on each. Trap methods are more amenable to “input”

controls, viz., limiting the number and size of lobsters which will

be caught in the first instance. Accordingly, Amendment 3 limited

the number of traps per vessel or expedition, their overall

capacity, and the minimum size of their escape vents.4

On the other hand, such input controls were simply a less

practicable and efficacious methodology for use in non-trap

lobstering. For instance, had defendants prescribed that the mesh

openings in a trawler net were to be made significantly larger to

enable the escape of small lobsters, the trawlers’ primary catch of

finfish would be necessarily and severely diminished as well.

ASMFC rationally adopted the 100/500 limitation because it would

4
At oral argument Medeiros suggested, absent record support,
that these limitations upon trap methods are entirely illusory,
inasmuch as they do not restrict the number of times lobstermen may
empty and reset traps. We disagree. If one trapper is allowed ten
traps, and another only two, and we assume that each trapper has
the same incentive to maximize his profits by resetting his traps
as many times as is practicable (viz., allowing a sufficient time
interval for capture), it logically follows that the trapper with
only two traps is likely to catch fewer lobster in any given
allotted time period. The same reasoning applies to the reductions
in the capacity of each trap imposed pursuant to Amendment 3.

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reasonably account for the historical, coincidental capture of

lobster during finfish trawling, while deterring trawlers from

deliberately targeting more lobster. Thus, ASMFC decided to impose

“output” controls upon non-trap methodologies.

The defendants point out as well that limitations upon

non-trap methodologies are essential, in that even though the

lobster by-catch on the part of fishing vessels presently employing

non-trap methods constituted a relatively minor percentage of the

overall lobster harvest,5 fishing vessels confronted with ever-

diminishing finfish stocks and/or with increasing regulatory

limitations upon finfish harvesting or trap lobstering might turn

increasingly to unregulated non-trap lobstering. Since non-trap

methods have proven most destructive to the vulnerable population

of soft shed lobsters, such a potential redirection of the vessels’

efforts into non-trap lobstering eventually would undermine the

essential aims of Amendment 3 and Regulation 15.18.

Medeiros maintains that these asserted reasons do not

constitute a rational basis for equal protection purposes. He

cites to the written opinions of Mark Gibson, a former DEM

official, and Jan H. Reitsma, a former director of DEM, who opposed

the 100/500 limit because (i) it would discriminate by placing

catch limits on the non-trap sector, but none on the trap sector,

5
For example, by the year 2000, merely 1.62 percent of Rhode
Island lobster landings were effected by non-trap methods.

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and (ii) offered no conservation benefit, since non-trap landings

constitute but a small fraction of the total lobster catch.

However sincere these officials may have been in regard

to the usefulness of the 100/500 lobster catch limits, their

opinions cannot satisfy the daunting burden of demonstrating that

the 100/500 limit has no conceivable rational basis. See McDonald

v. Bd. of Election Comm'rs, 394 U.S. 802, 809 (1969) (“Legislatures

are presumed to have acted constitutionally . . . .”); Wine and

Spirits, 418 F.3d at 53. A legislative or regulatory body is

entrusted with “substantial latitude to establish classifications

that roughly approximate the nature of the problem perceived.”

Gary S. v. Manchester Sch. Dist., 374 F.3d 15, 22 (1st Cir.)

(citation omitted), cert. denied, 125 S. Ct. 505 (2004). Once a

rational basis is identified, we must uphold the statute or

regulation even in cases when there is no empirical data in the

record to support the assumptions underlying the chosen remedy.

See Powers v. Harris, 379 F.3d 1208, 1217 (10th Cir. 2004); Donahue

v. City of Boston, 371 F.3d 7, 15 (1st Cir.) (noting that reasons

need not be supported by record, and any “‘plausible’ justification

will suffice”) (citation omitted), cert. denied, 125 S. Ct. 498

(2004); Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 146 (1st Cir.

2001).

Amendment 3 and Regulation 15.18 reasonably

“discriminate” by imposing “output controls” upon non-trap methods,

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as these methods are not amenable to the type of “input controls”

imposed upon the trap sector. The defendants aptly note that any

attempt to place comparable restrictions upon the non-trap sector

would be unworkable. For example, any requirement that trawling

nets have larger openings in their mesh would result in the

coincident loss of finfish, the trawlers’ primary catch. Moreover,

even if practicable input controls could be placed upon the non-

trap sector, the dredging method inherently poses a greater risk of

lobster mortality not presented by the trap sector. See N.Y. State

Trawlers Assocs. v. Jorling, 16 F.3d 1303, 1309-10 (2d Cir. 1994)

(upholding against equal protection challenge a statutory

prohibition on lobster trawling, based upon demonstrable damage to

lobster populations from trawling method).

The reliance by Gibson and Reitsma upon the relatively

small percentage of non-trap landings is similarly unavailing.

First, the conclusion which they draw – that the 100/500 limit has

“no” conservation benefit – is demonstrably false; at the very

least, the 100/500 limit would have some (albeit small)

conservation benefit commensurate with the relative size of the

non-trap sector. More importantly, a statute or regulation is not

lacking in a rational basis simply because it addresses a broader

problem in small or incremental stages. See City of New Orleans v.

Dukes, 427 U.S. 297, 303 (1976). It is only necessary that there

be some rational relation between the method chosen and the

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intended result. And it cannot be gainsaid that it is entirely

plausible to anticipate that the 100/500 limit likely would

decrease the non-trap harvesting of lobster to the extent such

unrestricted harvesting previously occurred.

The yet more fatal fallacy in the Medeiros argument is

that it conveniently ignores the assertion that the defendants

designed the 100/500 limit as a prophylactic measure to prevent any

future redirection of efforts from trap lobstering and finfishing

into non-trap lobstering methods. As this court has noted, “those

attacking the rationality of the legislative classification have

the burden ‘to negative every conceivable basis which might support

it[.]’” Abdullah v. Comm’r, 84 F.3d 18, 20 (1st Cir. 1996)

(quoting FCC v. Beach Communications, 508 U.S. 307, 315 (1993))

(emphasis added; citation omitted). In an industry increasingly

subjected to severe restrictions designed to enable the

replenishment of rapidly dwindling fishing stocks, it was entirely

rational for defendants to conclude that any opening left in the

regulatory net could entice fishermen to venture an advantageous

escape.

As surely as the opinion of the two DEM officials cannot

be successfully utilized to second-guess the ASMFC’s prerogatives,

neither may the court second-guess such regulatory judgments. See

Beach Communications, 508 U.S. at 313 (“[E]qual protection is not

a license for courts to judge the wisdom, fairness, or logic of

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legislative choices.”); Dukes, 427 U.S. at 303 (“[T]he judiciary

may not sit as a super legislature to judge the wisdom or

desirability of legislative policy determinations made in areas

that neither affect fundamental rights nor proceed along suspect

lines.”); LCM Enters. v. Town of Dartmouth, 14 F.3d 675, 679 (1st

Cir. 1994); Baker v. City of Concord, 916 F.2d 744, 749 (1st Cir.

1990).

As the district court correctly concluded that Medeiros

could not establish at trial that Amendment 3 and Regulation 15.18

lack any conceivable rational basis, it properly granted summary

judgment for the defendants on the instant claim.

B. The Substantive Due Process Claim

Medeiros appeals as well from the district court ruling

that he failed adequately or distinctly to plead the claim that

Amendment 3 and Regulation 15.18 violate his right to substantive

due process. Medeiros maintains that he adequately alleged that

the regulations infringed upon his “fundamental right” to make a

living, thereby triggering the heightened “strict scrutiny”

standard of review.

However, at oral argument Medeiros conceded that the

identical analysis applied to the equal protection and due process

claims. If Medeiros alleged an infringement of a fundamental

right, both claims were subject to "strict scrutiny" analysis.

Otherwise, both claims were governed by the “rational basis”

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standard of review.

The right to “make a living” is not a “fundamental

right,” for either equal protection or substantive due process

purposes. See N.Y. State Trawlers, 16 F.3d at 1309-12; supra note

3. Thus, Amendment 3 and Regulation 15.18 must be upheld against

the Medeiros substantive due process challenge, in that, as we have

already noted, see supra Section II.A; E. Enters. v. Chater, 110

F.3d 150, 159 (1st Cir. 1997) (“[A] court must apply substantially

the same [rational basis] analysis to both substantive due process

and equal protection challenges.”), both are rationally related to

the legitimate governmental purpose of lobster conservation. See

PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31-32 (1st Cir. 1991)

(“The doctrine of substantive due process ‘does not protect

individuals from all [governmental] actions that infringe liberty

or injure property in violation of some law. Rather, substantive

due process prevents “governmental power from being used for

purposes of oppression,” or “abuse of government power that shocks

the conscience,” or an “action that is legally irrational in that

it is not sufficiently keyed to any legitimate state interests.”’”)

(citations omitted). Accordingly, the district court correctly

entered summary judgment for the defendants on the Medeiros

substantive due process claim.

C. The Tenth Amendment Claim

Finally, Medeiros maintains that he alleged a viable

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Tenth Amendment claim: that the Atlantic Coastal Act in general and

in particular its provision permitting the Secretary of Commerce to

impose a moratorium on any member State that refuses to adopt a

“necessary” term of an IFMP constitutes an impermissible

“commandeering” by the federal government of the states’

legislative prerogatives. See, e.g., Printz v. United States, 521

U.S. 898, 924 (1997) (striking down Brady Act provision which

required state law enforcement officers to assist in national

instant background checks for firearm sales); New York v. United

States, 505 U.S. 144, 168 (1992) (striking down provision requiring

states to take title to radioactive waste as part of a federal

regulatory initiative).6 In other words, Medeiros intimates, the

mere threat of a moratorium has compelled Rhode Island, against its

will, to adopt the 100/500 limitation in Amendment 3.

The defendants counter that the instant claim must be

dismissed on jurisdictional grounds since private citizens like

Medeiros lack standing to assert Tenth Amendment claims, which are

to be prosecuted (if at all) by the state. The defendants note as

well that Rhode Island voluntarily has endorsed and continues to

endorse the policy underlying the enactment of the 100/500 limit,

see R.I. Gen. Laws § 20-8-7 (requiring that all state officials

take any action necessary to comply with the ACFCMA compact), and

6
The Tenth Amendment provides: “The powers not delegated to
the United States by the Constitution, nor prohibited to the
States, are reserved to the States respectively, or to the people.”

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that even if the Atlantic Coastal Act or its moratorium were to be

invalidated on Tenth Amendment grounds, Rhode Island voluntarily

would elect to leave Regulation 15.18 in place, and therefore the

harm incurred by Medeiros would not be redressed. In the

alternative, the defendants contend that, even if Medeiros did have

standing, the Atlantic Coastal Act does not constitute an

impermissible “commandeering” of Rhode Island’s legislative

prerogatives, but rather a permissible “program of cooperative

federalism” in which the federal and state governments have acted

voluntarily in tandem to achieve a common policy objective. See

New York, 505 U.S. at 167.

We resolve the threshold jurisdictional issue prior to

reaching the merits of the Medeiros claim. See Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 101-02 (1998) (noting

that court should not reach merits unless first assured that it has

jurisdiction; to assume jurisdiction arguendo would result in an

advisory opinion); Parella v. Ret. Bd. of the R.I. Employees' Ret.

Sys., 173 F.3d 46, 53-54 (1st Cir. 1999). We conclude, as did the

district court, that Medeiros lacks standing to present a Tenth

Amendment claim.

The United States Supreme Court has held that private

citizens lack standing to maintain Tenth Amendment claims. See

Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118, 144

(1939) [hereinafter: “TVA”] (“As we have seen there is no objection

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to the Authority's operations by the states, and, if this were not

so, the appellants, absent the states or their officers, have no

standing in this suit to raise any question under the amendment.”).

Medeiros incorrectly classifies the TVA holding as dictum. The

Court dismissed the Tenth Amendment claim after analyzing both the

standing issue and the merits, and hence, the former holding is an

alternative ground, rather than obiter dictum. See California v.

United States, 438 U.S. 645, 689 n.10 (1978); Woods v. Interstate

Realty Co., 337 U.S. 535, 537 (1949); Natural Res. Def. Council,

Inc. v. Nuclear Regulatory Comm'n, 216 F.3d 1180, 1189 (D.C. Cir.

2000). Accordingly, the Supreme Court's explicit holding in TVA,

which has never been reversed, remains binding precedent.

Medeiros counters that the Supreme Court’s subsequent

discussion of the Tenth Amendment in New York v. United States, 505

U.S. 144 (1992), undermines TVA:

The Constitution does not protect the
sovereignty of States for the benefit of the
States or state governments as abstract
political entities, or even for the benefit of
the public officials governing the States. To
the contrary, the Constitution divides
authority between federal and state
governments for the protection of individuals.
State sovereignty is not just an end in
itself: “Rather, federalism secures to
citizens the liberties that derive from the
diffusion of sovereign power.”

Id. at 181 (citation omitted). Medeiros suggests that this

language is to be read as abrogating the principle that only the

states’ interests are protected by the Tenth Amendment, and if

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individual citizens also have interests, they must have standing in

order to protect them in court. We do not agree.

First, as the New York decision does not mention TVA, it

cannot be construed as expressly overruling it.7 Moreover, even if

the Medeiros reading of the passage were plausible and we were to

conclude that its reasoning is inconsistent with TVA, we would

remain bound to apply TVA. “If a precedent of [the Supreme] Court

has a direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals

should follow the case which directly controls, leaving to [the

Supreme] Court the prerogative of overruling its own decisions.”

Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,

484 (1989). The TVA decision has direct application to the instant

case, in that it involved private parties attempting to assert

Tenth Amendment claims, whereas New York did not. Rather, since

New York involved a claim asserted only by a state, the question of

private-party standing under the Tenth Amendment was never at

issue; indeed, the word “standing” was never mentioned.

Moreover, the Medeiros interpretation of New York – as

holding that individuals must have standing to bring Tenth

Amendment claims in court – is by no means inarguable. The

7
In fact, the Supreme Court has reiterated its TVA holding in
subsequent dicta. Flast v. Cohen, 392 U.S. 83, 105 (1968) (noting
that private citizens cannot “assert the States’ interest in their
legislative prerogatives”).

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specific focus of the above-quoted discussion was whether a state

could assert a Tenth Amendment “commandeering” claim where a

previous administration of that state had initially acquiesced in

the commandeering, or whether the Tenth Amendment claim had been

waived. In responding that a state could never consent to an

unconstitutional commandeering, the Supreme Court noted that the

Amendment protects the individual citizens of the state generally

by diffusing power among sovereigns, and therefore the State cannot

waive a commandeering violation which in fact impinges upon that

interest. New York, 505 U.S. at 182.

One might suppose that this proposition leads inevitably

to the conclusion that, if a State refuses to oppose an unlawful

commandeering, an individual citizen is the only remaining party

with an interest and incentive to vindicate that violation, and

therefore the New York Court necessarily must have envisioned that

the private citizen would have standing to bring suit on the Tenth

Amendment claim. While this is one plausible interpretation, it is

not an inexorable one. Rather, the Court may simply have intended

that the State represents the interests of its citizens in general,

and, if it refuses to prosecute a viable Tenth Amendment claim, the

citizens of that state may have recourse to local political

processes to effect change in the state’s policy of acquiescence.

If the Tenth Amendment is not waivable, individuals could petition

state officials for redress at any time. We need not determine

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which interpretation is more likely, but only that it is at least

debatable whether, or to what extent, the New York decision

undermines the TVA holding.

Medeiros also notes that the Court recently granted a

writ of certiorari for the purpose of deciding this very issue,

see Pierce County, Washington v. Guillen, 537 U.S. 129 (2003), and

though it ultimately declined to reach the question, id. at 148

n.10, we should interpret this development as an indication of the

Court's readiness to overturn TVA. We can draw no such inference

on the basis of this development. Certiorari could mean either

that the Court is interested in reexamining and/or overruling TVA,

or that it merely intends to reaffirm TVA in the face of a circuit

split on the issue. Those circuit court decisions which have held

that private citizens possess standing to bring Tenth Amendment

claims are problematic. For instance, the Eleventh Circuit’s

precedent commenced without any reference to TVA, and subsequent

panels have expressed concern as to whether the omission has

resulted in the perpetuation of a circuit precedent inconsistent

with TVA. See, e.g., Dillard v. Baldwin County Comm’rs, 225 F.3d

1271, 1283 & n.1 (11th Cir. 2000) (Barkett, J., concurring). In

addition, the Seventh Circuit has permitted a state police officer

to maintain a Tenth Amendment claim that a federal regulation

interfered with the officer's state law enforcement job by

prohibiting persons convicted of domestic violence crimes from

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possessing guns, but in such specialized circumstances, it is

debatable whether the plaintiff is acting in behalf of the state or

simply as a private citizen. See Gillespie v. City of

Indianapolis, 185 F.3d 693, 702-04 (7th Cir. 1999); cf. Lomont v.

O'Neill, 285 F.3d 9, 13 n.3 (D.C. Cir. 2002) (noting in dicta that

TVA likely would preclude Tenth Amendment standing to a purely

private citizen, yet holding that a county sheriff and a chief of

police possessed standing to assert a commandeering claim). In

contrast, many courts explicitly have held that TVA, until

overruled, bars Tenth Amendment claims by private citizens. See,

e.g., United States v. Parker, 362 F.3d 1279, 1284-85 (10th Cir.),

cert. denied, 125 S. Ct. 88 (2004); City of Roseville v. Norton,

219 F. Supp. 2d 130, 147-48 (D.D.C. 2002), aff’d, 348 F.3d 1020

(D.C. Cir. 2003), cert. denied sub nom. Citizens for Safer Cmtys.,

541 U.S. 974 (2004); Vt. Assembly of Home Health Agencies v.

Shalala, 18 F. Supp. 2d 355, 370-71 (D. Vt. 1998).

We are particularly reluctant to second-guess the

continuing viability of TVA regarding so complex an issue of

constitutional law. If and when the Supreme Court revisits TVA, it

may be confronted with the question as to how a private citizen

proceeds to establish a Tenth Amendment “commandeering” claim where

the State itself has acquiesced in the federal-state arrangement.

For example, if Medeiros were to possess standing, the question

might arise as to whether he should be allowed discovery to

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determine why Rhode Island officials initially adopted Regulation

15.18, or why those officials reinstated the regulation with

dispatch following its brief repeal in 2000. On the other hand, if

the State cannot acquiesce in a commandeering regime, see New York,

505 U.S. at 182, its actual motivation in enacting Regulation 15.18

might be immaterial. Finally, if private citizens possess standing

to prosecute Tenth Amendment claims, it is not difficult to

envision a substantial increase in such litigation before the

federal courts. Given that potential, the prudential and

precedential principle enunciated in Rodriquez de Quijas seems

particularly apt. In the event TVA is no longer good law, it

should be for the Supreme Court explicitly to overrule it.

Accordingly, we affirm the district court holding that

Medeiros lacks standing to pursue a Tenth Amendment claim that the

Atlantic Coastal Act constitutes an unconstitutional commandeering

of the Rhode Island legislative processes.

Affirmed.

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