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
