ELR Citation: ELR 20938
No(s). s. 93-3709 et al (5th Cir. Apr 12, 1995)

The court reverses and remands a district court's grant of summary judgment for the U.S. government in actions the government brought to collect civil penalties that the National Oceanic and Atmospheric Administration (NOAA) assessed against shrimpers for violating the Endangered Species Act (ESA) by knowingly failing to use qualified turtle excluder devices while shrimping. The court first holds that one defendant's notice of appeal was timely and that the court has jurisdiction to hear his appeal even though he filed the notice on January 28, 1994—more than 60 days after the district court's original entry of judgment on November 8, 1993. Because the district court's November 8 judgment did not specify the amount of damages the defendant owed, it did not constitute a final judgment. The district court's January 12, 1994, amended judgment reflecting the penalty amount was the final judgment. Regarding the same defendant, the court next holds that the district court erred in granting the government summary judgment without considering the record as a whole. ESA §11(a)(1) requires judicial review based on the entire administrative record, and the government failed to file a certified copy of the administrative record with the district court. The court also holds that the district court's error was not harmless. The court reverses and remands the decision against this defendant in order to provide the government with the opportunity to file a certified copy of the administrative record with the district court, and for that court then to proceed with appropriate review.

The court next holds that two other defendants exhausted all administrative remedies required by statute or agency rule, and that neither the ESA nor its regulations require further exhaustion as a condition to judicial review. Because the ESA does not specifically address exhaustion of administrative remedies, the Administrative Procedure Act (APA), 5 U.S.C. §703, applies. Under case law interpreting §703, agency action is final when an aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule. Although NOAA regulations permit parties to seek wholly discretionary review within the agency, they do not require this as a prerequisite to judicial review. The court next holds that the district court erred in holding that the defendants' failure to pursue discretionary review within NOAA waived their due process arguments. It is clear that the defendants raised their due process arguments before the administrative law judge (ALJ) by twice requesting hearings, and these requests constituted sufficient objections to preserve the arguments. The court also holds that the district court erred in granting summary judgment for the government because the ALJ improperly granted summary judgment in favor of NOAA. The ALJ improperly shifted the burden of proof from NOAA to the parties charged with the violations.

[One of the district court's opinions is published at 24 ELR 21151.]

Counsel for Plaintiff
Peter Appel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Bernard J. Bagert Jr.
Bagert & Trinchard
Pan-American Life Ctr.
601 Poydras St., Ste. 2075, New Orleans LA 70130
(504) 523-1118

Before POLITZ, Chief Judge, GARWOOD and BENAVIDES, Circuit Judges.