Eagle Eye v. COMM ( 1994 )

March 31, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1740
EAGLE EYE FISHING CORPORATION, ET AL.,
Petitioners, Appellants,
v.
UNITED STATES DEPARTMENT OF COMMERCE, ET AL.,
Respondents, Appellees.
ERRATA SHEET
The opinion of this Court issued on March 17, 1994, is
amended as follows:
On cover sheet, under counsel, please delete the following:
with whom Andrew C. Mergen was on brief.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1740
EAGLE EYE FISHING CORPORATION, ET AL.,
Petitioners, Appellants,
v.
UNITED STATES DEPARTMENT OF COMMERCE, ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Selya, Boudin and Stahl, Circuit Judges.
Edward F. Bradley, Jr., for appellants.
Joan M. Pepin, Attorney, United States Department of
Justice, with whom Myles E. Flint, Deputy Assistant Attorney
General, A. John Pappalardo, United States Attorney, Edward J.
Shawaker, Charles W. Brooks, Patricia Kraniotis, and Karen Antrim
Raine were on brief, for appellees.
March 17, 1994
SELYA, Circuit Judge. The marlin's tail, a central
SELYA, Circuit Judge.
image in one of the little masterpieces of modern literature,1
today finds a new habitat: we must pass upon a fine levied by
the National Oceanic and Atmospheric Administration (NOAA) for
possession of such a tail. In the last analysis, however, the
appeal does not turn on matters of either ichthyology or
literature, but on pedestrian principles of procedural default.
We conclude that, on the facts of this case, the raise-or-waive
rule must be applied strictly, and, consequently, we affirm the
district court's dismissal of appellants' petition for judicial
review.
I
The Tale of the Tail
On April 28, 1989, in San Juan, Puerto Rico, Mahlon
Pickering, an agent of the National Marine Fisheries Service,
observed the severed tail of a large fish hanging from the
rigging of the F/V EAGLE EYE. The agent boarded the craft,
interrogated a crew member, inspected the caudal appendage, and
launched the investigation that led NOAA to charge the vessel's
owner, petitioner-appellant Eagle Eye Fishing Corporation, and
its captain, petitioner-appellant Bruce Beebe, under the Magnuson
Fishery Conservation and Management Act of 1976, 16 U.S.c.
1801-1882 (1988), and the regulations promulgated pursuant
1See Ernest Hemingway, The Old Man and the Sea 99 (Chas.
Scribner's Sons 1952) (describing the marlin tail as "higher than
a big scythe blade and a very pale lavender above the dark blue
water").
3
thereto, see 50 C.F.R. 644.7(d), 644.22 (1990).2 The
regulations prohibit not only capture, but mere possession, of a
billfish such as a blue marlin shoreward of this nation's
exclusive economic zone (EEZ).3
Appellants denied the charges. Though able to afford
counsel, they chose to appear pro se at the ensuing
administrative hearing. They did not object when the vessel's
logbook was introduced into evidence. By like token, they did
not controvert expert testimony that, assuming a Caribbean catch,
the tail could only belong to a blue marlin. Instead, appellants
argued that NOAA could not prove with the requisite degree of
probability that the tail found aboard appellants' vessel
belonged to a marlin caught in Caribbean waters. They suggested
that the tail perhaps belonged to a black marlin.4
The administrative law judge (ALJ) found that the fish
had been snagged in Caribbean waters frequented by the blue (but
2Former section 644.7(d) is now recodified as 50 C.F.R.
644.7(e) (1993).
3To be precise, the regulations proscribe possession of such
a billfish "by a vessel with a pelagic longline or drift net
aboard or harvested by gear other than rod and reel," 50 C.F.R.
644.7(d) (1990), "shoreward of the outer boundary of the EEZ,"
id. 644.22. The regulations delineate the EEZ as that span of
the sea from the shoreward boundary of each coastal state to
points 200 nautical miles from the "baseline," or low water line,
along the state's coast. See 50 C.F.R. 620.2; see also Thomas
J. Schoenbaum, Admiralty and Maritime Law 2-4, at 26 (1987).
Appellants do not dispute that the F/V EAGLE EYE is a vessel
subject to 50 C.F.R. 644.7(d). Similarly, they do not dispute
that San Juan Harbor lies within this nation's EEZ.
4The black marlin is an unprotected species indigenous to
the Pacific Ocean and the Indian Ocean.
4
not the black) marlin. He rested that determination on several
pieces of evidence, including, inter alia, (1) the logbook, which
verified the vessel's coordinates at all relevant times; (2) a
swordfishing permit, which generally defined the vessel's fishing
area; (3) testimony of a crew member regarding the vessel's
location during the voyage; and (4) Agent Pickering's opinion
that the fish seemed to have been caught only a day or two before
the ship had docked, or, stated differently, four to five days
before he first observed it. Based principally on this
determination as to the situs of the catch, the ALJ decided that
the tail belonged to a blue marlin and fined appellants $5,250.
Appellants secured counsel and filed a petition seeking
further administrative review, see 15 C.F.R. 904.273. In the
course of that review, appellants for the first time argued that
NOAA violated its own confidentiality regulations by publicly
disclosing information contained in the logbook.5 The NOAA
Administrator equivocated about the merits of this argument, but
concluded that, in all events, appellants were barred from
advancing it because they had not raised it before the ALJ.6
5Logbooks of this type must be kept as a matter of course by
all regulated fishing vessels, and the vessels must record
certain specified information therein. See 50 C.F.R. 603. The
information is gathered for use in the agency's fisheries
management program and is to be held in confidence, see id.,
subject to certain specified exceptions, see, e.g., 50 C.F.R.
603.5, 603.7.
6The Administrator based his finding of waiver on a
procedural regulation providing that:
Issues of fact or law not argued before the
[ALJ] may not be raised on review unless they
5
Appellants then sought judicial review pursuant to 16
U.S.C. 1861(d). In their complaint, they again challenged the
use of the logbook at the administrative hearing. The district
court dealt appellants a double blow; the court upheld the agency
determination on the ground of procedural default, and also
concluded that, wholly apart from the logbook, there existed
ample evidence to underbrace the ALJ's finding that appellants
unlawfully possessed a blue marlin within the EEZ. This appeal
followed.
II
Troubled Waters
The doctrine of administrative waiver is a subset of
the broader doctrine of procedural default. It teaches that,
"[i]n the usual administrative law case, a court ought not to
consider points which were not seasonably raised before the
agency." Massachusetts Dep't of Pub. Welfare v. Secretary of
Agric., 984 F.2d 514, 523 (1st Cir.), cert. denied, 114 S. Ct. 81(1993). This doctrine serves a variety of worthwhile ends,
including judicial economy, agency autonomy, and accuracy of
result.7
were raised for the first time in the initial
decision, or could not reasonably have been
foreseen and raised by the parties during the
hearing.
15 C.F.R. 904.273(d).
7These interests are similar, but not identical, to the main
interests underlying the concept of administrative exhaustion.
See, e.g., Ezratty v. Puerto Rico, 648 F.2d 770, 774 (1st Cir.
1981); United States v. Newmann, 478 F.2d 829, 831 (8th Cir.
6
To be sure, the general rule of administrative waiver
is ringed with exceptions. See Massachusetts DPW, 984 F.2d at
524. Appellants seek to invoke one such exception, applicable to
significant questions of law, especially those of constitutional
magnitude which are not only likely to arise again but also are
susceptible to resolution on the existing record. See, e.g.,
United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990)
(developing this exception in the context of an analogous rule
involving an appellate court's treatment of questions not raised
in the trial court). In furtherance of this attempt, appellants
assert that their confidentiality argument is substantive and
bears on NOAA's central mission of fisheries management, raising
the specter that the agency's misuse of routinely collected
information could drive fishermen to falsify their records. We
are unpersuaded. If the NOAA Administrator shared appellants'
fear, then he could have reached out to decide the
confidentiality issue on administrative review as a matter of
discretion. The fact that he did not do so speaks volumes. We
add, moreover, that appellants come nowhere near satisfying the
other requirements of the La Guardia exception. For example,
there is no reason to think that this question will recur after
all, it apparently has not arisen on any other occasion in the
seventeen-year history of the Magnuson Act and, at any rate,
1973); see also Massachusetts DPW, 984 F.2d at 523 n.8. This is
as it should be, for both rules are aimed at assuring full
development of fact and law at the agency level.
7
the question cannotconfidently be resolvedon the existingrecord.8
Appellants have a second hook on their line. They tell
us that they proceeded pro se before the ALJ, represented only by
a corporate officer and the officer could not have been
expected to understand the significance of admitting the logbook
into evidence. Appellants view this circumstance as sufficient
to justify an exception to the administrative waiver rule, either
because, in general, the absence of counsel should insulate
parties from the usual strictures of the rule, or because, in
particular, appellants should be found to come within the
regulatory exception that permits a new argument to be raised if
it "could not reasonably have been foreseen" at the time of the
initial hearing, 15 C.F.R. 904.273(d), quoted supra note 6. We
find neither of these theorems to be convincing.
A pro se litigant, like any litigant, is guaranteed a
meaningful opportunity to be heard. See Logan v. Zimmerman Brush
8The government denies that its use of the logbook
transgressed the confidentiality regulation. To the contrary, it
asserts that all individuals who had access to the statistics
fell within the confidentiality exemptions permitting disclosure
to federal employees responsible for monitoring and enforcement
of fisheries management plans, as well as to other NOAA personnel
on a need-to-know basis. See 50 C.F.R. 603.5. The government
also argues that limited use of otherwise confidential data, such
as logbook information, is frequently allowed for purposes of
enforcement proceedings in federal courts, see, e.g., United
States v. Kaiyo Maru No. 53, 699 F.2d 989, 992 (9th Cir. 1983);
United States v. Daiei Maru No. 2, 562 F. Supp. 34, 35 (D. Alaska
1982), as well as in administrative proceedings, see, e.g., In re
Ostrovsry, 5 Ocean Resources and Wildlife Reporter (ORW) 578
(NOAA 1987); In re Shoffler, 3 ORW 618 (NOAA 1984). The
administrative record is not sufficiently well developed to
enable enlightened resolution of these contentions a
circumstance which, in itself, militates strongly against
excusing appellants' administrative waiver.
8
Co., 455 U.S. 422, 437 (1982). While courts have historically
loosened the reins for pro se parties, see, e.g., Haines v.
Kerner, 404 U.S. 519, 520-21 (1972) (suggesting that courts
should construe a pro se litigant's pleadings with liberality),
the "right of self-representation is not `a license not to comply
with relevant rules of procedural and substantive law.'" Andrews
v. Bechtel Power Corp., 780 F.2d 124, 140 (1st Cir. 1985)
(quoting Faretta v. California, 422 U.S. 806, 835 n.46 (1975)),
cert. denied, 476 U.S. 1172 (1986). The Constitution does not
require judges or agencies, for that matter to take up the
slack when a party elects to represent himself. See McKaskle v.
Wiggins, 465 U.S. 168, 183-84 (1984) (explaining that courts need
not "take over chores for a pro se defendant that would normally
be attended to by trained counsel as a matter of course").
Although Faretta and McKaskle are criminal cases, the
principles for which they stand are fully applicable in this
instance. Indeed, there is a long line of authority rejecting
the notion that pro se litigants in either civil or regulatory
cases are entitled to extra procedural swaddling. See Julie M.
Bradlow, Comment, Procedural Due Process Rights of Pro Se Civil
Litigants, 55 U. Chi. L. Rev. 659, 668 nn.41,42 (1988)
(collecting cases); see also Andrews, 780 F.2d at 140 (declining
to carve out a pro se exception to Fed. R. Evid. 103(a)(2)).
While we can imagine cases in which a court appropriately might
extend special solicitude to a pro se litigant, see, e.g., Rana
v. United States, 812 F.2d 887, 889 n.2 (4th Cir. 1987) (dictum),
9
the instant case is clearly not cut from that cloth. Appellants
simply appear to have been penny wise and pound foolish; they
knowingly chose to handle their own defense, forsaking
professional assistance; they lost; and no miscarriage of justice
looms. Consequently, appellants must reap the predictable
harvest of their procedural default.
We give short shrift to appellants' claim that, due to
their pro se status, the confidentiality argument "could not
reasonably have been foreseen and raised," 15 C.F.R.
904.273(d), during the initial round of hearings. The exception
limned in this regulation is a narrow one. It should be applied
sparingly. And, moreover, foreseeability in this context must be
judged according to a standard of objective reasonableness. Cf.
Jorgensen v. Massachusetts Port Auth., 905 F.2d 515, 521 (1st
Cir. 1990) (explaining, in the tort context, that foreseeability
should be judged by means of a similar standard). Hence, parties
who choose to represent themselves must be held to anticipate
what trained counsel would ordinarily anticipate. In other
words, if a reasonably well-prepared litigant could have foreseen
an issue, and would have raised it, then the exception contained
in the regulation does not pertain. So it is here.
III
An Anchor to Windward
Before ending our voyage, we add that any error was
harmless. We have carefully reviewed the record and are
confident that suppression of the logbook would have had no
10
effect on the outcome of the proceeding. Although the logbook
entries comprise the only evidence establishing the precise
location of the F/V EAGLE EYE, the record makes manifest that the
agency's case depends upon the general location of the vessel,
not its exact longitude and latitude at any given moment. Here,
substantial evidence apart from the logbook entries establishes
beyond serious hope of contradiction that the vessel was in the
Caribbean at the time it caught the fish to which the offending
tail was once attached. That evidence, without more, was fully
sufficient to confirm the species of fish and, consequently, to
warrant a finding that the regulations had been infringed.
IV
The Tail of the Tale of the Tail
We need go no further. In many respects, these
proceedings parallel Hemingway's novella. Before the ALJ,
appellants "tried not to think but only to endure." Hemingway,
supra, at 50. On administrative review, they acted as if "[e]ach
time was a new time." Id. at 73. But these apothegms make
better sense on the open sea than they do in open court. Here,
at long last, appellants must recognize that, in Hemingway's
words, they are "beaten now finally and without remedy." Id. at
131. The civil penalty assessed by NOAA must be paid.
Affirmed.
11