Case Details

Navigation

Full Site Search

Loading...

The navigation select boxes below will direct you to the selected page when you hit enter.

Topical Explanations

Primary Legal Materials

Select by Subject

Select by Species

Select Administrative Topic


World Law

Secondary Legal Materials

Great Apes and the Law

Great Apes and the Law

Maps of State Laws

Map of USA
Share |
United States Department of Agriculture (U.S.D.A.)

In re: JAMES JOSEPH HICKEY, JR., d/b/a S & H SUPPLY CO., AND JERRY R. BRANTON
United States
53 Agric. Dec. 1087 (1994)


Case Details
Printable Version
Summary:   Respondents' failure to file timely answer, or deny allegations of complaint, constituted admission of complaint allegations and waiver of hearing, irrespective of respondents' contention that they were justified in not filing answer because ALJ did not rule on respondents' motions to sever, strike and make more definite and certain, since Department's rules of practice do not alter time for filing answer when such motions are filed.

Judge Initial Decision issued by Dorothea A. Baker, Administrative Law Judge. Decision and Order issued by Donald A. Campbell, Judicial Officer delivered the opinion of the court.


Opinion of the Court:

   This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. s 2131 et seq.), and the regulations issued thereunder (9 C.F.R. s 1.1 et seq.). On August 23, 1994, Administrative Law Judge Dorothea A. Baker (ALJ) issued an initial Decision and Order prohibiting Respondent from obtaining a license for a period of 10 years, assessing a civil penalty of $10,000, and directing Respondent to cease and desist from various practices involving interfering with inspectors during the course of an inspection, recordkeeping, maintenance of facilities, and failing to maintain programs of disease control, euthanasia, and adequate veterinary care.

   On September 26, 1994, Respondent appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the *1088 Department's cases subject to 5 U.S.C. ss 556 and 557 (7 C.F.R. s 2.35). [FN1] The case was referred to the Judicial Officer for decision on October 20, 1994.

    **2 Based upon a careful consideration of the entire record, the Initial Decision and Order (with a few minor editorial changes) is adopted as the Final Decision and Order, except that the effective date is changed in view of the appeal. Additional conclusions by the Judicial Officer follow the ALJ's conclusions.

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION

Preliminary Statement

   This proceeding was instituted under the Animal Welfare Act ("Act"), as amended (7 U.S.C. s 2131 et seq.), by a complaint filed by the Administrator, Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture, alleging that James Joseph Hickey and Jerry R. Branton willfully violated the Act.

   A copy of the complaint and the Rules of Practice governing proceedings under the Act, 7 C.F.R. ss 1.130-1.151, was served on James Joseph Hickey (hereafter "respondent") on April 21, 1994, by certified mail. Respondent was informed in the letter of service that an answer should be filed pursuant to the Rules of Practice and that failure to answer any allegation in the complaint would constitute an admission of that allegation.

   The respondent failed to file an answer within the time prescribed in the Rules of Practice, and the material facts alleged in the complaint, which are admitted by respondent's failure to file an answer, are adopted and set forth herein as Findings of Fact and Conclusions of Law.

   The complaint was filed herein on April 4, 1994, alleging, inter alia, with specificity, that respondent James Joseph Hickey, Jr., d/b/a S & H Supply Co., had violated various provisions of the Animal Welfare Act. Jerry R. Branton was also named as a respondent. On July 18, 1994, a Default Decision was issued as to him, providing for a period of disqualification and *1089 the imposition of a $2,500 civil penalty.

   The complaint was served on respondent Hickey on April 21, 1994. Respondent Hickey failed to file an answer. However, he did file, on May 10, 1994, a Request for Hearing and Motions (to Sever, Strike, and Make More Definite and Certain), to which complainant filed a Response on May 17, 1994. The case was assigned to this Judge on June 15, 1994, at a time after respondent was in default for having failed to file an answer. However, in complainant's Response of May 17, 1994, it was stated:

   Complainant has alerted Respondent's counsel, Mr. Andrew Ositis, of this [Default]. Complainant will not object to the Court's granting an extension of time up through an additional 30 days for Respondent to file an Answer.

   Upon assignment of the case to me on June 15, 1994, I issued a "Clarification of Status of Record" which specifically stated:

   Accordingly, Respondent Hickey is granted to and including July 15, 1994, within which to file an Answer.

   I further stated, "Assuming that an Answer is filed," respondent Hickey's Motions would be considered. Respondent Hickey has more than sufficiently been advised that the filing of an answer was required by the Rules of Practice; by the Judge's above-referenced Clarification of Status of Record; and, by complainant's counsel who has indicated:

    **3 On May 17, 1994, attorney for complainant also called the respondent's attorney, Andrew Ositis, to inform him that the Rules of Practice required the filing of an answer. (Motion: July 28, 1994).

   Respondent Hickey has filed no answer as required by the Rules of Practice and Procedure. Respondent Hickey seeks to avoid the requirement of filing an answer because there has been no ruling on his Motions filed May 10, 1994. This was addressed by the Judge in the Clarification of Status of Record. The filing of Motions does not obviate the requirement of filing an answer. There is no necessity to rule on said Motions at this time but if I were to rule, I would deny Respondent Hickey's Motions in their entirety (except for request for hearing), premised on the record as a whole, including the reasons set forth by complainant in its Response thereto of May 17, 1994.

    *1090 This decision and order, therefore, is issued pursuant to section 1.139 of the Rules of Practice, 7 C.F.R. s 1.139.

Findings of Fact and Conclusions of Law

   1. James Joseph Hickey, Jr., d/b/a S & H Supply Co., is an individual whose address is 5050 Columbus Street, SE TRLR 33, Albany, Oregon 97321.

   2. James Joseph Hickey, Jr., at all times material herein, was licensed and operating as a dealer as defined in the Act and the regulations, and was subject to the provisions of the Act. The Secretary, therefore, has jurisdiction in this matter.

   3. From on or about October 24, 1989, and continuing to on or about June 28, 1990, respondent James Joseph Hickey, Jr., purchased at least 46 live random source dogs and cats from an unlicensed dealer, Jerry R. Branton, who did not breed and raise the dogs and cats on his own premises, in willful violation of section 2.132 of the regulations (9 C.F.R. s 2.132).

   4. On February 7, 1990, APHIS inspected respondent James Joseph Hickey, Jr.'s dog facility and records and found that respondent had failed to maintain complete records showing the acquisition, disposition, and identification of animals, in willful violation of section 10 of the Act (7 U.S.C. s 2140) and section 2.75(a)(1) of the regulations (9 C.F.R. s 2.75(a)(1)).

   5. On February 7, 1990, APHIS inspected respondent James Joseph Hickey, Jr.'s premises and found that respondent had failed to maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine and failed to provide veterinary care to animals in need of care, in willful violation of section 2.40 of the regulations (9 C.F.R. s 2.40).

   6. On February 7, 1990, APHIS inspected respondent James Joseph Hickey, Jr.'s premises and found that respondent had failed to provide adequate veterinary care to animals, in willful violation of section 2.40 of the regulations (9 C.F.R. s 2.40).

   7. On February 7, 1990, APHIS inspected respondent James Joseph Hickey, Jr.'s dog facility and found the following willful violations of section 2.100(a) of the regulations (9 C.F.R. 2.100(a)) and the specified standards:

    **4 a. Provisions were not made for the removal and disposal of animal wastes so as to minimize vermin infestation, odors, and disease hazards (9 C.F.R. s 3.1(d));

   b. Primary enclosures for dogs were not structurally sound and maintained in good repair so as to protect the animals from injury and to *1091 contain them (9 C.F.R. s 3.4(a)); and

   c. Primary enclosures for dogs were not sanitized as required (9 C.F.R. s 3.7(a)).

   8. On June 22, 1990, APHIS inspected respondent James Joseph Hickey, Jr.'s dog facility and found that watering receptacles for dogs were not kept clean and sanitized (9 C.F.R. s 3.6) in willful violation of section 2.100(a) of the regulations (9 C.F.R. 2.100(a)) and the specified standards.

   9. On June 22, 1990, respondent James Joseph Hickey, Jr., willfully violated section 16 of the Act, 7 U.S.C. s 2146, and section 2.126 of the regulations, 9 C.F.R. s 2.126, by failing to give APHIS officials access to any records relating to numerous dogs on hand at the dog facility.

   10. On June 22, 1990, respondent James Joseph Hickey, Jr., willfully violated section 16 of Act, 7 U.S.C. s 2146, and section 2.126 of the regulations, 9 C.F.R. s 2.126, by interfering with APHIS inspection of the dog facility and related records through verbal abuse and threats.

   11. On June 22, 1990, APHIS inspected respondent James Joseph Hickey, Jr.'s cat facility and records and found that respondent had failed to maintain complete records showing the acquisition, disposition, and identification of animals, in willful violation of section 10 of the Act (7 U.S.C. s 2140) and section 2.75(a)(1) of the regulations (9 C.F.R. s 2.75(a)(1)).

   12. On June 22, 1990, APHIS inspected respondent James Joseph Hickey, Jr.'s cat facility and found that primary enclosures for cats were not structurally sound and maintained in good repair so as to protect the animals from injury and to contain them (9 C.F.R. s 3.4(a)), in willful violation of section 2.100(a) of the regulations (9 C.F.R. 2.100(a)) and the specified standards.

   13. The following Order is authorized by the Act and warranted under the circumstances.

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

   Under the Department's Rules of Practice Governing Formal Adjudicatory Administrative Proceedings Instituted By The Secretary, a Respondent's failure to file a timely Answer or deny the allegations of the Complaint constitutes an admission of the allegations in the Complaint and a waiver of hearing. Specifically, the Rules of Practice provide (7 C.F.R. ss 1.136(a)-(c), .139, .141(a)):

s 1.136 Answer.

    *1092 (a) Filing and service. Within 20 days after the service of the complaint . . . the respondent shall file with the Hearing Clerk an answer signed by the respondent or the attorney of record in the proceeding. . . .

   (b) Contents. The answer shall:

   (1) Clearly admit, deny, or explain each of the allegations of the Complaint and shall clearly set forth any defense asserted by the respondent; or

    **5 (2) State that the respondent admits all the facts alleged in the complaint; or

   (3) State that the respondent admits the jurisdictional allegations of the complaint and neither admits nor denies the remaining allegations and consents to the issuance of an order without further procedure.

   (c) Default. Failure to file an answer within the time provided under s 1.136(a) shall be deemed, for purposes of the proceeding, an admission of the allegations in the Complaint, and failure to deny or otherwise respond to an allegation of the Complaint shall be deemed, for purposes of the proceeding, an admission of said allegation, unless the parties have agreed to a consent decision pursuant to s 1.138.

   . . . .

s 1.139 Procedure upon failure to file an answer or admission of facts.

   The failure to file an answer, or the admission by the answer of all the material allegations of fact contained in the complaint, shall constitute a waiver of hearing. Upon such admission or failure to file, complainant shall file a proposed decision, along with a motion for the adoption thereof, both of which shall be served upon the respondent by the Hearing Clerk. Within 20 days after service of such motion and proposed decision, the respondent may file with the Hearing Clerk objections thereto. If the Judge finds that meritorious objections have been filed, complainant's Motion shall be denied with supporting reasons. If meritorious objections are not filed, the Judge shall issue a decision *1093 without further procedure or hearing. . . .

   . . . .

s 1.141 Procedure for Hearing.

   (a) Request for Hearing. Any party may request a hearing on the facts by including such request in the complaint or answer, or by a separate request, in writing, filed with the Hearing Clerk within the time in which an answer may be filed. Failure to request a hearing within the time allowed for the filing of the answer shall constitute a waiver of such hearing.

   The Complaint contains allegations virtually identical to the findings of fact, supra, and states (Complaint at 5):

   The respondents shall file an answer with the Hearing Clerk, United States Department of Agriculture, Washington, D.C. 20250-9200, in accordance with the Rules of Practice governing proceedings under the Act (7 C.F.R. s 1.130 et seq.). Failure to file an answer shall constitute an admission of all the material allegations of this complaint.

   In addition, the letter from the Hearing Clerk enclosing a copy of the Rules of Practice and serving a copy of the Complaint on Respondent expressly and accurately advised Respondent of the effect of failure to file an Answer or plead specifically to any allegation of the Complaint. The letter states:

   Most importantly, you have 20 days from the receipt of this letter to file with the Hearing Clerk an original and four copies of your written and signed answer to the complaint. It is necessary that your answer set forth any defense you wish to assert, and to specifically admit, deny or explain each allegation of the complaint. Your answer may include a request for an oral hearing. Failure to file an answer or filing an answer which does not deny the material allegations of the complaint, shall constitute an admission of those allegations and a waiver of your right to an oral hearing.

    **6 Respondent did not file an Answer to the Complaint. Accordingly, the default order was properly issued in this case. Although on rare occasions *1094 default decisions have been set aside for good cause shown or where Complainant did not object, [FN2] Respondent has shown no basis for setting aside the default decision here. [FN3]

    *1095 The requirement in the Department's Rules of Practice that Respondents deny or explain any allegation of the Complaint and set forth any defense in a timely Answer is necessary to enable this Department to handle its large workload in an expeditious and economical manner. The Department's five ALJ's frequently dispose of 450 to 500 cases in a year. In recent years, the Department's Judicial Officer has disposed of 50 to 60 cases per year. In a recent month, 50 new cases were filed with the Hearing Clerk.

   The courts have recognized that administrative agencies "should be .free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties."' [FN4] If Respondent were permitted to contest some of the allegations of fact at this late date, or raise new issues, all other Respondents in all other cases would have to be afforded the same privilege. Permitting such practice would greatly delay the administrative process and would require additional personnel. However, there is no basis for permitting Respondent to present matters by way of defense at this time.

    *1096 Respondent argues that he was justified in not filing an Answer because the ALJ did not rule on his motions to sever, strike, and make more definite and certain. If this case were in a federal district court operating under the Federal Rules of Civil Procedure, Respondent's argument would be correct. The Federal Rules of Civil Procedure provide:

Rule 12. Defenses and Objections--When and How Presented--By Pleading or Motion--Motion for Judgment on Pleadings

   (a) WHEN PRESENTED. A defendant shall serve an answer within 20 days after the service of the summons and complaint upon that defendant, except when service is made under Rule 4(e) and a different time is prescribed in the order of court under the statute of the United States or in the statute or rule of court of the state. . . . The service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; (2) if the court grants a motion for a more definite statement the responsive pleading shall be served within 10 days after the service of the more definite statement.

   . . . .

   (e) MOTION FOR MORE DEFINITE STATEMENT. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

    **7 (f) MOTION TO STRIKE. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any *1097 time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

   However, unlike the Federal Rules of Civil Procedure, the Department's Uniform Rules of Practice applicable to all disciplinary hearings categorically require that an Answer be filed within 20 days after service of the Complaint. There is no provision in the Department's Rules of Practice altering the period of time for filing an Answer because of a motion to strike or for a more definite statement. The Rules of Practice were drafted in this manner by design, in order to avoid the delays between the Complaint and the Answer that are commonplace in court proceedings. Furthermore, those of us who worked on the Department's Uniform Rules of Practice recognized that there are striking differences between judicial complaints and administrative disciplinary complaints. As stated in In re Dane O. Petty, 43 Agric. Dec. 1406, 1434 35 (1984), aff'd, No. 3-84-2200-R (N.D. Tex. June 5, 1986):

   It is well settled that the formalities and technicalities of court pleading are not applicable in administrative proceedings.27 It is only necessary that the complaint in an administrative proceeding reasonably apprise the litigant of the issues in controversy; any such notice is adequate and satisfies due process in the absence of a showing that some party was misled.28

FN27 Wallace Corp. v. NLRB, 323 U.S. 248, 253 (1944); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 142-44 (1940).

FN28 NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 350-51 (1938); Aloha Airlines, Inc. v. CAB, 598 F.2d 250, 261-62 (D.C. Cir. 1979); NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1161 (5th Cir. 1977); L.G. BalfourCo. v. FTC, 442 F.2d 1, 19 (7th Cir. 1971); Bruhn's Freezer Meats of Chicago, Inc. v. USDA, 438 F.2d 1332, 1342 (8th Cir. 1971); Swift & Co. v. United States, 393 F.2d 247, 252-53 (7th Cir. 1968); Cella v. United States, 208 F.2d 783, 788-89 (7th Cir. 1953), cert. denied, 347 U.S. 1016 (1954); American Newspaper Pub. Ass'n v. NLRB, 193 F.2d 782, 799-800 (7th Cir. 1951), cert. denied sub nom. International Typographical Union v. NLRB, 344 U.S. 816 (1952); Mansfield Journal Co. v. FCC, 180 F.2d 28, 36 (D.C. Cir. 1950); E.B. Muller & Co. v. FTC, 142 F.2d 511, 518-19 (6th Cir. 1944); *1098 A.E. Staley Mfg. Co. v. FTC, 135 F.2d 453, 454-55 (7th Cir. 1943); NLRB v. Pacific Gas & Elec. Co., 118 F.2d 780, 788 (9th Cir. 1941); In re Sterling Colo. Beef Co., 35 Agric. Dec. 1599, 1601 (1976) (ruling on certified questions), final decision, 39 Agric. Dec. 184 (1980), appeal dismissed, No. 80-1293 (10th Cir. Aug. 11, 1980); In re Holcomb, 35 Agric. Dec. 1165, 1173-74 (1976).

    **8 The Department very deliberately did not provide in its Rules of Practice for a delay incident either to a motion to strike or for a more definite statement of the Complaint.

   The Rules of Practice are controlling irrespective of whether Respondent had knowledge of them. But in this case, Respondent was provided with a copy of the Rules of Practice with the Hearing Clerk's letter serving the Complaint. In addition, the Complaint and the Hearing Clerk's letter both advised Respondent of the need to file a timely Answer. Moreover, Complainant's attorney advised Respondent's attorney on May 17, 1994, by a telephone call and a response to Respondent's motions that Respondent was in default because of his failure to file a timely Answer. Specifically, Complainant stated in Complainant's Response to Respondent Hickey's Motions to Sever, Strike and Make More Definite and Certain filed May 17, 1994, at 6-7:

   Respondent was served with the Complaint on April 21, 1994. Complainant notes that Respondent has failed to file an Answer affirming or denying the allegations of the Complaint within 20 days of the date of service, as per the Rules of Practice, 7 C.F.R. s 1.136. Respondent has also failed to file a request for an extension of time for filing an Answer. According to the Rules of Practice, 7 C.F.R. s 1.136(c), Respondent is now subject to default.

   Complainant has alerted Respondent's counsel, Mr. Andrew Ositis, of this. Complainant will not object to the Court's granting an extension of time up through an additional 30 days for Respondent to file an Answer.

   On June 16, 1994, the ALJ filed a document labeled "Clarification of Status of Record," stating:

   On May 10, 1994, Respondent Hickey, through counsel filed Motions to Sever, Strike, and Make More Definite and Certain, together with a request for hearing. Complainant filed a Response thereto on May 17, *1099 1994, opposing said Motions, except for the request for an oral hearing, and stated, among other things:

   Complainant will not object to the Court's granting an extension of time up through an additional 30 days for Respondent to file an Answer.

   Accordingly, Respondent Hickey is granted to and including July 15, 1994, within which to file an Answer. Assuming that an Answer is filed, a pre-hearing conference call will be arranged and other aspects of Respondent Hickey's Motions will be considered, including a time and place of the oral hearing, and dates for the mutual exchange of copies of anticipated exhibits and witness lists.

   Copies hereof shall be served upon the parties.

   Respondent's attorney states that he never received the ALJ's "Clarification of Status of Record." In Respondent's Objections to Proposed Decision and Order at 1, Respondent states:

   1. On May 10, 1994, pursuant to 7 C.F.R. s 1.143(b)(2), respondent Hickey filed motions to sever, strike, and to make more definite portions of the complaint in the case. While counsel for the agency filed objections to the motion, there has never been a ruling on the motions; only an apparent extension of time, never received by counsel, in which to file an answer.

    **9 Assuming that Respondent's attorney did not receive the ALJ's Order extending his time for filing an Answer, Respondent was, nonetheless, bound by the Department's Rules of Practice. Respondent was in default for failure to file an Answer, as required by the Rules of Practice. Procedural due process does not require the Department to have a rule like Rule 12 of the Federal Rules of Civil Procedure extending the time for filing an Answer until after a ruling is made on a motion to strike or for a more definite statement.

   As to the sanction, the Department's current sanction policy is set forth in In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476, 497 (1991), aff'd, No. 91 70169 (9th Cir. Apr. 23, 1993) (Table) (text in WESTLAW) (not to be cited as precedent *1100 under 9th Circuit Rule 36 3), as follows:

   It is appropriate to state expressly the practice that has been followed by the Judicial Officer in recent cases, viz., that reliance will no longer be placed on the "severe" sanction policy set forth in many prior decisions, e.g., In re Spencer Livestock Comm'n Co., 46 Agric. Dec. 268, 435 62 (1987), aff'd on other grounds, 841 F.2d 1451 (9th Cir. 1988). Rather, the sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose.

   The sanctions sought by Complainant and imposed by the ALJ are consistent with the sanctions imposed in other AWA cases of a similar nature. See, e.g., In re Ron Morrow, 53 Agric. Dec. 144 (1994) ($50,000 civil penalty and 10-year license disqualification); In re James Petersen, 53 Agric. Dec. 80 (1994) ( $5,000 civil penalty and 1-year license disqualification); In re Alex Pasternak, 52 Agric. Dec. 180 (1993) ($10,000 civil penalty and minimum 1-year license suspension); In re Dwight Carpenter, 51 Agric. Dec. 239 (1992) ( $3,000 civil penalty and minimum 6-month license suspension). The ALJ's sanction is appropriate in view of Respondent's violations in this case. The violations are particularly egregious because they occurred while a prior disciplinary case was pending before the Department involving somewhat similar violations. In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476 (1991) ($10,000 civil penalty and minimum 1-year license suspension), aff'd, 991 F.2d 803 (9th Cir. 1993) (Table) (text in WESTLAW) (not to be cited as precedent under 9th Circuit Rule 36-3).

   For the foregoing reasons, the following Order should be issued.

Order

   1. Respondent, his agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Act and the regulations and standards issued thereunder, and in particular, shall cease and desist from:

    **10 (a) Failing to maintain housing facilities for dogs in a structurally sound *1101 condition and in good repair;

   (b) Failing to make provisions for the removal and disposal of animal wastes;

   (c) Failing to keep food and water receptacles clean and sanitized;

   (d) Failing to maintain primary enclosures for dogs in a clean and sanitary condition;

   (e) Failing to establish and maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine;

   (f) Failing to provide veterinary care to animals; and

   (g) Failing to maintain records of the acquisition, disposition, description, and identification of animals, as required;

   (h) Failing to give APHIS officials access to records relating to the facility being inspected; and

   (i) Interfering with APHIS inspection of the facility and records through verbal abuse and threats.

   2. The Respondent is assessed a civil penalty of $10,000 which shall be paid within 90 days after service of this Order by a certified check or money order made payable to the Treasurer of the United States. The check or money order should be sent to Tejal Mehta, Marketing Division, Office of the General Counsel, United States Department of Agriculture, Room 2014, South Building, Washington D.C. 20250-1417.

   3. The Respondent is disqualified for a period of 10 years from being licensed under the Act and regulations.

   The provisions of this Order shall become effective on the day after service of this Order on Respondent.

FN1 The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1280 (1988). The Department's present Judicial Officer was appointed in January 1971, having been involved with the Department's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' appellate litigation relating to appeals from the decisions of the prior Judicial Officer; and 8 years as administrator of the Packers and Stockyards Act regulatory program).

FN2 In re Veg-Pro Distributors, 42 Agric. Dec. 273 (1983) (remand order), final decision, 42 Agric. Dec. 1173 (1983) (default decision set aside because service of the complaint by registered and regular mail was returned as undeliverable, and respondent's license under the Perishable Agricultural Commodities Act had lapsed before service was attempted); In re J. Fleishman & Co., 38 Agric. Dec. 789 (1978) (remand order), final decision, 37 Agric. Dec. 1175 (1978); In re Henry Christ, L.A.W.A. Docket No. 24 (Nov. 12, 1974) (remand order), final decision, 35 Agric. Dec. 195 (1976); and see In re Vaughn Gallop, 40 Agric. Dec. 217 (order vacating default decision) (case remanded to determine whether just cause exists for permitting late answer), final decision, 40 Agric. Dec. 1254 (1981).

FN3 See In re Mike Robertson, 47 Agric. Dec. 879 (1988) (default order proper where answer not filed); In re Morgantown Produce, Inc., 47 Agric. Dec. 453 (1988) (default order proper where answer not filed); In re Johnson-Hallifax, Inc., 47 Agric. Dec. 430 (1988) (default order proper where answer not filed); In re Charley Charton, 46 Agric. Dec. 1082 (1987) (default order proper where answer not filed); In re Les Zedric, 46 Agric. Dec. 948 (1987) (default order proper where timely answer not filed); In re Arturo Bejarano, 46 Agric. Dec. 925 (1987) (default order proper where timely answer not filed; respondent properly served even though his sister, who signed for the complaint, forgot to give it to him until after the 20-day period had expired); In re Schmidt & Son, Inc., 46 Agric. Dec. 586 (1987) (default order proper where timely answer not filed); In re Roy Carter, 46 Agric. Dec. 207 (1987) (default order proper where timely answer not filed; respondent properly served where complaint sent to his last known address was signed for by someone); In re Luz G. Pieszko, 45 Agric. Dec. 2565 (1986) (default order proper where answer not filed); In re Elmo Mayes, 45 Agric. Dec. 2320 (1986) (default order proper where answer not filed), rev'd on other grounds, 836 F.2d 550 (6th Cir. 1987) (unpublished); In re Leonard McDaniel, 45 Agric. Dec. 2255 (1986) (default order proper where timely answer not filed); In re Joe L. Henson, 45 Agric. Dec. 2246 (1986) (default order proper where answer admits or does not deny material allegations); In re J.W. Guffy, 45 Agric. Dec. 1742 (1986) (default order proper where answer, filed late, does not deny material allegations); In re Wayne J. Blaser, 45 Agric. Dec. 1727 (1986) (default order proper where answer does not deny material allegations); In re Northwest Orient Airlines, 45 Agric. Dec. 2190 (1986) (default order proper where timely answer not filed); In re Jerome B. Schwartz, 45 Agric. Dec. 1473 (1986) (default order proper where timely answer not filed); In re Midas Navigation, Ltd., 45 Agric. Dec. 1676 (1986) (default order proper where answer, filed late, does not deny material allegations); In re Gutman Bros., Ltd., 45 Agric. Dec. 956 (1986) (default order proper where answer does not deny material allegations); In re Dean Daul, 45 Agric. Dec. 556 (1986) (default order proper where answer, filed late, does not deny material allegations); In re Eastern Air Lines, Inc., 44 Agric. Dec. 2192 (1985) (default order proper where timely answer not filed; irrelevant that respondent's main office did not promptly forward complaint to its attorneys); In re Carl D. Cuttone, 44 Agric. Dec. 1573 (1985) (default order proper where timely answer not filed; respondent Carl D. Cuttone properly served where complaint sent by certified mail to his last business address was signed for by Joseph A. Cuttone), aff'd per curiam, 804 F.2d 153 (D.C. Cir. 1986) (unpublished); In re Corbett Farms, Inc., 43 Agric. Dec. 1775 (1984) (default order proper where timely answer not filed; respondent cannot present evidence that it is unable to pay $54,000 civil penalty where it waived its right to a hearing by not filing a timely answer); In re Ronald Jacobson, 43 Agric. Dec. 780 (1984) (default order proper where timely answer not filed); In re Joseph Buzun, 43 Agric. Dec. 751 (1984) (default order proper where timely answer not filed; respondent Joseph Buzun properly served where complaint sent by certified mail to his residence was signed for by someone named Buzun); In re Ray Mayer, 43 Agric. Dec. 439 (1984) (decision as to respondent Doss) (default order proper where timely answer not filed; irrelevant whether respondent was unable to afford an attorney), appeal dismissed, No. 84- 4316 (5th Cir. July 25, 1984); In re Willard Lambert, 43 Agric. Dec. 46 (1984) (default order proper where timely answer not filed); In re Danny Rubel, 42 Agric. Dec. 800 (1983) (default order proper where respondent acted without an attorney and did not understand the consequences and scope of a suspension order); In re Randy & Mary Berhow, 42 Agric. Dec. 764 (1983) (default order proper where timely answer not filed); In re Pastures, Inc., 39 Agric. Dec. 395, 396-97 (1980) (default order proper where respondents misunderstood the nature of the order that would be issued); In re Jerry Seal, 39 Agric. Dec. 370, 371 (1980) (default order proper where timely answer not filed); In re Thomaston Beef & Veal, Inc., 39 Agric. Dec. 171, 172 (1980) (default order not set aside because of respondents' contentions that they misunderstood the Department's procedural requirements, when there is no basis for the misunderstanding).

FN4 Cella v. United States, 208 F.2d 783, 789 (7th Cir. 1953), cert. denied, 347 U.S. 1016 (1954), quoting from FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143 (1940); accord Swift & Co. v. United States, 308 F.2d 849, 851-52 (7th Cir. 1962).

Top of Page
Share |