United States District Court, District of Columbia
April 9, 2002
CONSERVATION LAW FOUNDATION, ET AL., PLAINTIFFS,
DONALD EVANS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gladys Kessler, United States District Court Judge.
Plaintiffs Conservation Law Foundation, Center for Marine
Conservation, National Audubon Society, and Natural Resources Defense
Council ("Plaintiffs") brought suit against the United States Secretary
of Commerce Donald Evans, the National Oceanic and Atmospheric
Administration, and the National Marine Fisheries Service
("Defendants"), charging that Defendants failed to prevent overfishing
and minimize bycatch*fn1 along the New England coast.
On December 28, 2001, the Court granted Plaintiffs' Motion for Summary
Judgment. The Court determined that Defendants violated the
Magnuson-Stevens Fishery Conservation and Management Act,
16 U.S.C. § 1801 et seq., as amended by the Sustainable Fisheries Act
("SFA"), Pub.L. No. 104-297, 110 Stat. 3559 (1996), and the
Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Specifically,
the Court found that Defendants violated the SFA and APA by failing to
implement Amendment 9 of the Fishery Management Plan, thereby violating
the overfishing, rebuilding and bycatch provisions of the SFA. The Court
further held that Amendment 9 violates the bycatch provisions of the
The Court must now enter a remedial order. The following parties have
intervened in the remedial proceedings: (1) Northeast Seafood Coalition;
(2) Associated Fisheries of Maine, the Cities of Portland, Maine and New
Bedford, Massachusetts, and the Trawlers Survival Fund; (3) the States
of Maine, New Hampshire, Rhode Island, and Massachusetts; and (4)
Northwest Atlantic Marine Alliance, Stonington Fisheries Alliance, Saco
Bay Alliance, Cape Cod Commercial Hook Fishermen's
Association, Paul Parker, and Craig A. Pendelton.
In light of the summary judgment briefs and the preliminary remedy
submissions,*fn2 it is apparent to the Court that the remedial phase will
involve highly technical and scientific issues relating to matters such
as the biomass and mortality levels of particular species of fish; the
impact such levels have upon the status of the species; the appropriate
scientific methodology to calculate such levels; the fishery management
measures that will achieve a particular biomass and mortality level;
and the effect of the various management measures on each species of
fish and the fishing industry. Consequently, the Court has determined
that a technical advisor is necessary to teach and instruct the Court.
It is important to note that the Court is appointing an expert
technical advisor, not an expert witness pursuant to Fed.R.Evid. 706.
The necessity of a technical advisor in this case is hightened by the
limited time frame in which the Court must make its decision. The
parties' final briefs are to be submitted by April 12, 2002, and the
fishing season begins on May 1, 2002. Therefore, the Court will have
only two weeks in which to evaluate the parties' arguments and issue
its remedial order.
I. Authority to Appoint a Technical Advisor
The Court's authority to appoint a technical advisor rests on two
independent grounds. First, a district court has the inherent authority
to appoint an advisor. Additionally, the Administrative Expenses Act of
1949, 5 U.S.C. § 3109, and the Court Interpreters Act, Pub.L. No.
95-539, § 5, 28 U.S.C. § 602(c), afford the judiciary statutory
authority to employ an expert.
In Reilly v. U.S., 682 F. Supp. 150 (D.R.I. 1988), the district court
conducted an exhaustive examination of the legal principles underlying a
court's inherent authority to appoint an advisor. In so doing, the court
determined that it possessed the inherent authority to appoint a
technical advisor to advise and instruct the court on the economic issues
surrounding the calculation of damages for loss of the earning capacity
of an infant. The court's determination was affirmed by that circuit,
see Reilly v. U.S., 863 F.2d 149 (1st Cir. 1988) (district court did not
abuse its discretion in appointing technical advisor), and has been
followed by courts that have addressed the issue. See Ass'n of
Mexican-American Educators v. State of California, 231 F.3d 572 (9th
Cir. 2000) (affirming district court's appointment of technical advisor
based on lower court's inherent authority to appoint an advisor).
Moreover, there is widespread recognition that courts are increasingly
facing complex scientific and technical issues for which they need
instruction and greater understanding. As Justice Breyer recognized, "as
cases presenting significant science-related issues have increased in
number, judges have increasingly found in the Rules of Evidence and Civil
Procedure ways to help them overcome the inherent difficulty of making
determinations about complicated scientific, or otherwise technical,
evidence. Among these techniques are . . . the appointment of special
masters and specially trained law clerks." General Electric Co. et al.
v. Joiner, 522 U.S. 136, 149 (1997) (Breyer, J., concurring) (citation
omitted). Many of the cases involving these increasingly scientific and
technical questions involve evidentiary gatekeeping functions or
decisions on summary judgment motions such as those addressed directly by
Supreme Court in Joiner and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), or, as in this case, the imposition of a
remedy whose appropriateness rests on complex scientific data.
Explanation from an expert may often assist courts in addressing such
The Administrative Expenses Act of 1949, 5 U.S.C. § 3109, and the
Court Interpreters Act, Pub.L. No. 95-539, § 5, 92 Stat. 2040, 2044
(1978), 28 U.S.C. § 602(c), provide an additional independent statutory
basis for the Court's authority to appoint an expert advisor.
The Administrative Expenses Act grants various departments and agencies
that constitute the executive branch the authority to procure the
temporary or intermittent services of experts or consultants. See
5 U.S.C. § 3109. Section 602(c) of the Court Interpreters Act
codifies the authority of the Director of the Administrative Office of
the U.S. Courts to employ experts and consultants authorized by
5 U.S.C. § 3109. See 28 U.S.C. § 602(c). Section 602(d) provides
that "[t]he Director may delegate any of the Director's functions,
powers, duties, and authority . . . to such officers and employees of the
judicial branch of Government as the Director may designate . . . and may
authorize the successive redelegation of such functions, powers, duties,
and authority as the Director may deem desirable." Id. § 602(d).
Therefore, a federal judge possesses statutory authority to appoint an
expert when properly designated by the Director or by an officer or
employee duly empowered to so designate. In this case, permission has
been obtained from the Director's delegates and therefore all statutory
requirements have been met.
II. Procedures for Selecting the Technical Advisor*fn3
The Court has made every effort to utilize a fair and open procedure
for appointing a neutral technical advisor, which includes affording the
parties the opportunity to assert any allegations of bias, partiality or
lack of qualification.
Upon determining the need for the assistance of a technical advisor,
the issue was raised with counsel in open court. The parties were asked
to submit the names of potential advisors on whom they agreed. With the
substantial assistance of the Director of the Alternative Dispute
Resolution Program, Nancy Stanley, a list of 10 technical experts was
developed. Each of the groups of parties*fn4 was afforded the
opportunity to strike one name from the list. The parties were afforded
two weeks to research the qualifications of most of the candidates and
one week to conduct research regarding an additional list of names
subsequently submitted by one of the parties.
The Court was thereafter provided with a ranked list of six technical
experts (the original list of ten minus four candidates who were struck
by a party) from which the Court could select a technical advisor. The
individual who the Court has selected as the technical advisor, Dr. Wayne
of the Department of Environmental Science, Policy and Management at
the University of California at Berkeley, was ranked second.
The parties were then afforded an additional opportunity to object
to the proposed advisors. The Court specifically requested allegations
of any direct conflicts of interest or bias. The parties were afforded
one week in which to conduct further investigations regarding the
proposed advisors and submit any objections to the Court. Only two
responses to the Court's order were filed.
Interveners the Associated Fisheries of Maine, Inc.; the City of
Portland, Maine; the City of New Bedford, Massachusetts; and the
Trawlers Survival Fund (collectively "AFM") expressed reservations
regarding the potential partiality of the expert ranked first on the
list of six individuals. The interveners also expressed a preference
for Dr. Getz and two other individuals. The Plaintiffs and interveners
the States of Maine, Massachusetts, New Hampshire and Rhode Island
filed a statement indicating that they did not object to the first
three experts on the list of six individuals.
The Court subsequently contacted the top three individuals. Because the
first ranked individual indicated that he would not be available to serve
as the technical advisor, it was not necessary for the Court to
evaluate AFM's concerns regarding his potential partiality. The
third individual contacted was also unavailable. Dr. Getz was therefore
selected as the Court's technical advisor.
III. Scope of the Technical Advisor's Duties
The scope of the expert advisor's duties will be to answer the Court's
technical questions regarding the meaning of terms, phrases, theories and
rationales included in or referred to in the briefs and exhibits of any
of the parties. He shall be a "tutor who aids the court in understanding
the `jargon and theory' relevant to the technical aspects of the
evidence." Ass'n of Mexican-American Educators, 231 F.3d at 612
(Tashima, J., dissenting). The advisor shall not give any advice to the
Court on the ultimate issue of the remedy that is most appropriate in
light of the entire record. Given the fact that the Court will have
approximately two weeks from the date final submissions are filed to the
May 1, 2002 deadline to order a remedy, the Court may only have the
opportunity to conduct sporadic but possibly lengthy phone discussions
with the technical advisor.
At the conclusion of this phase of the case, when the Court explains
its reasons for the remedial order, the Court will summarize the amount
and nature of its reliance on the technical advisor.
Pursuant to the Court's inherent and statutory authority, the Court has
obtained a technical advisor to assist the Court in understanding the
highly technical and scientific issues that will likely arise in the
remedial phase of the case. The manner in which the expert advisor was
selected was designed to establish a fair and open procedure for
obtaining a neutral advisor.
It is this 8th day of April 2002 hereby ORDERED, that Dr. Wayne M.
Getz of the Department of Environmental Science, Policy and Management
at the University of California at Berkeley is appointed as the Court's
technical advisor pursuant to the terms and procedures detailed in the
accompanying Memorandum Opinion.