
USCA1 Opinion

	




          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                                          I                                 The Tale of the Tail                                 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                                          II                                   Troubled Waters                                   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                                         III                                An Anchor to Windward                                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                                          IV                           The Tail of the Tale of the Tail                           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.          Affirmed.          ________                                          11
