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Marine Mammal Conservancy v. Department of Agric.

Citation: 28 ELR 20538
No. 96-1495, 134 F.3d 409/(D.C. Cir., 02/03/1998)

The court dismisses an organization's petition for judicial review of an administrative law judge's (ALJ's) decision denying the organization's request to intervene in a proceeding concerning the ownership and disposition of four dolphins. The court first holds that the organization failed to exhaust available administrative remedies when it did not prosecute an administrative appeal. The Administrative Procedure Act deems final for the purposes of judicial review only decisions of the judicial officer on appeal. The court next holds that three supposed exceptions to the exhaustion doctrine do not relieve the organization of the consequences of its failure to appeal to the judicial officer. The court rejects the organization's contention that it can petition for judicial review, without bothering to prosecute an administrative appeal, simply because it believes the ALJ made a fundamental error in ruling against it. Deciding whether the ALJ's decision amounted to a fundamental abuse would thrust the courts into the merits. Yet, the purpose of the exercise would be to determine if the court could decide the merits despite the litigant's failure to exhaust. In addition, this sort of exception would defeat the aim of rules requiring appeals to superior agency authority. If the decision of an inferior officer is so seriously in error that one might justifiably call it a fundamental abuse of the administrative process, this is all the more reason for insisting that the aggrieved party appeal and give the agency a chance to rectify the error.

The court next rejects the organization's argument that an agency rule prohibiting anyone other than a party to a decision to appeal or otherwise seek review or modification of a decision would have rendered the organization's appeal futile. The organization was not a party to the proceeding against the sanctuary that originally owned the dolphins. However, before the ALJ, the organization was surely a party to its own motion to intervene and its petition for review. Nonparties may move to intervene for the purposes of appeal; denials of such motions are, of course, appealable. The court also rejects the argument that an appeal was futile because if the organization had appealed, the judicial officer would have ruled against it. While adverse precedents increased the likelihood that the organization would lose, that cannot be enough. It must appear that pursuing available administrative remedies would have been clearly useless and that the ultimate denial of relief was a certainty. Doubt about the success of prosecuting an administrative appeal is no reason to excuse a litigant's failure to make the attempt.

Last, the court rejects the organization's argument that the constitutional nature of one of the organization's arguments excuses it from having to present the challenge to the judicial officer on appeal. There is no bright-line rule allowing litigants to bypass administrative appeals simply because one or all of their claims are constitutional in nature. Here, the policies underlying the exhaustion doctrine weigh decidedly against the organization's position.

Counsel for Petitioner
Arthur G. House
Hadley & House
4822 Montgomery La., Bethesda MD 20814
(301) 654-1181

Counsel for Respondents
M. Bradley Flynn
U.S. Department of Agriculture
14th and Independence Ave. SW, Washington DC 20250
(202) 720-8732

Before Edwards and Wald, JJ.