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United States Department of Agriculture (U.S.D.A.)

In re: JAMES J. EVERHART
United States
56 Agric. Dec. 1400 (1997)


Case Details
Printable Version
Summary:   Respondent's inability to pay civil penalty is not consideration in determining civil penalties assessed under Animal Welfare Act.

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


Opinion of the Court:

   The Acting Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding under the Animal Welfare Act, as amended (7 U.S.C. §§ 2131-2159) [hereinafter the Animal Welfare Act]; the regulations issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-2.133) [hereinafter the Regulations]; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice], by filing a Complaint on May 8, 1996.

   The Complaint alleges that: (1) in April or May 1994, James J. Everhart [hereinafter Respondent] operated as a dealer as defined in the Animal Welfare Act and the Regulations without having obtained a license, in willful violation of section 4 of the Animal Welfare Act (7 U.S.C. § 2134) and section 2.1 of the Regulations (9 C.F.R. § 2.1) (Compl. ¶ II(A)); (2) in April or May 1994, Respondent failed to maintain complete records showing the acquisition, disposition, and identification of one nonhuman primate, in willful violation of section 10 of the Animal Welfare Act (7 U.S.C. § 2140) and section 2.75(b)(1) of the Regulations (9 C.F.R. § 2.75(b)(1)) (Compl. ¶ II(B)); and (3) in April or May 1994, Respondent transported, in commerce, one nonhuman primate without it being accompanied by a health certificate executed and issued by a licensed veterinarian, in willful violation of section 2.78(a) of the Regulations (9 C.F.R. § 2.78(a)) (Compl. ¶ II(C)).

    *2 Respondent was served with the Complaint on September 5, 1996. Respondent failed to answer the Complaint within 20 days, as required by section 1.136(a) of the Rules of Practice (7 C.F.R. § 1.136(a)), and on March 5, 1997, in accordance with section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), Administrative Law Judge Dorothea A. Baker [hereinafter ALJ] issued a Decision and Order Upon Admission of Facts by Reason of Default [hereinafter Default Decision] in which the ALJ: (1) found that Respondent violated the Animal Welfare Act and the Regulations as alleged in the Complaint; (2) issued a cease and desist order directing that Respondent cease and desist from violating the Animal Welfare Act, the Regulations, and the Standards issued under the Animal Welfare Act (9 C.F.R. §§ 3.1-.142) [hereinafter the Standards]; (3) assessed a civil penalty of $3,000 against Respondent; and (4) disqualified Respondent from becoming licensed under the Animal Welfare Act and the Regulations for a period of one year (Default Decision at 2-3).

   On July 28, 1997, Respondent appealed to the Judicial Officer to whom the Secretary of Agriculture has delegated authority to act as final deciding officer in the Department's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35). [FN1] Complainant filed Complainant's Opposition to Respondent's Appeal of the Default Decision and Complainant's Motion to Modify the Order Issued Therein [hereinafter Complainant's Response and Motion to Modify] on August 8, 1997, and on September 25, 1997, the case was referred to the Judicial Officer for decision and ruling on Complainant's motion.

   Based upon a careful consideration of the record in this proceeding, I have adopted the Default Decision as the final Decision and Order; except that I have granted the motion to modify the ALJ's Order in the Default Decision. Additions or changes to the Default Decision are shown by brackets, deletions are shown by dots, and minor editorial changes are not specified. Additional conclusions by the Judicial Officer follow the ALJ's conclusion.

Applicable Statutory Provisions and Regulations

   7 U.S.C.:

CHAPTER 54--TRANSPORTATION, SALE, AND HANDLING OF CERTAIN ANIMALS

   . . . .

   § 2132. Definitions

   When used in this chapter--

   . . . .

   (b) The term "Secretary" means the Secretary of Agriculture of the United States or his representative who shall be an employee of the United States Department of Agriculture[.]

   . . . .

   (f) The term "dealer" means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes, except that this term does not include--

   (i) a retail pet store except such store which sells any animals to a research facility, an exhibitor, or a dealer; or

    *3 (ii) any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year[.]

. . . .

   § 2133. Licensing of dealers and exhibitors

   The Secretary shall issue licenses to dealers and exhibitors upon application therefor in such form and manner as he may prescribe and upon payment of such fee established pursuant to 2153 of this title: Provided, That no such license shall be issued until the dealer or exhibitor shall have demonstrated that his facilities comply with the standards promulgated by the Secretary pursuant to section 2143 of this title[.]

   § 2134. Valid license for dealers and exhibitors required

   No dealer or exhibitor shall sell or offer to sell or transport or offer for transportation, in commerce, to any research facility or for exhibition or for use as a pet any animal, or buy, sell, offer to buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this chapter any animals, unless and until such dealer or exhibitor shall have obtained a license from the Secretary and such license shall not have been suspended or revoked.

   § 2140. Recordkeeping by dealers, exhibitors, research facilities, intermediate handlers, and carriers

   Dealers and exhibitors shall make and retain for such reasonable period of time as the Secretary may prescribe, such records with respect to the purchase, sale, transportation, identification, and previous ownership of animals as the Secretary may prescribe. . . . Such records shall be made available at all reasonable times for inspection and copying by the Secretary.

   § 2149. Violations by licensees

   . . . .

   (b) Civil penalties for violation of any section, etc; separate offenses; notice and hearing; appeal; considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order

   Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. Each violation and each day during which a violation continues shall be a separate offense. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing with respect to the alleged violation[.]

7 U.S.C. §§ 2132(b), (f), 2133, 2134, 2140, 2149(b).

   9 C.F.R.:

SUBCHAPTER A--ANIMAL WELFARE

PART 1--DEFINITION OF TERMS

    *4 § 1.1 Definitions.

   For the purposes of this subchapter, unless the context otherwise requires, the following terms shall have the meanings assigned to them in this section. The singular form shall also signify the plural and the masculine form shall also signify the feminine. Words undefined in the following paragraphs shall have the meaning attributed to them in general usage as reflected by definitions in a standard dictionary.

   . . . .

   Dealer means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or use as a pet; or any dog for hunting, security, or breeding purposes. This term does not include: A retail pet store, as defined in this section, unless such store sells any animals to a research facility, an exhibitor, or a dealer (wholesale); or any person who does not sell, or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats, during any calendar year[.]

PART 2--REGULATIONS

SUBPART A--LICENSING

   § 2.1 Requirements and application.

   (a) (1) Any person operating or desiring to operate as a dealer, exhibitor, or operator of an auction sale . . . must have a valid license.

SUBPART G--RECORDS

   § 2.75 Records: Dealers and exhibitors.

   . . . .

   (b) (1) Every dealer . . . shall make, keep, and maintain records or forms which fully and correctly disclose the following information concerning animals other than dogs and cats, purchased or otherwise acquired, owned, held, leased, or otherwise in his or her possession or under his or her control, or which is transported, sold, euthanized, or otherwise disposed of by that dealer or exhibitor. The records shall include any offspring born of any animal while in his or her possession or under his or her control.

   (i) The name and address of the person from whom the animals were purchased or otherwise acquired;

   (ii)The USDA license or registration number of the person if he or she is licensed or registered under the Act;

   (iii) The vehicle license number and state, and the driver's license number and state of the person, if he or she is not licensed or registered under the Act;

   (iv) The name and address of the person to whom an animal was sold or given;

   (v) The date of purchase, acquisition, sale, or disposal of the animal(s);

   (vi) The species of the animal(s); and

   (vii) The number of animals in the shipment.

   § 2.78 Health certification and identification.

   (a) No dealer, exhibitor, operator of an auction sale, broker, or department, agency, or instrumentality of the United States or of any State or local government shall deliver to any intermediate handler or carrier for transportation, in commerce, or shall transport in commerce any dog, cat, or nonhuman primate unless the dog, cat, or nonhuman primate is accompanied by a health certificate executed and issued by a licensed veterinarian. The health certificate shall state that:

    *5 (1) The licensed veterinarian inspected the dog, cat, or nonhuman primate on a specified date which shall not be more than 10 days prior to the delivery of the dog, cat, or nonhuman primate for transportation; and

   (2) when so inspected, the dog, cat, or nonhuman primate appeared to the licensed veterinarian to be free of any infectious disease or physical abnormality which would endanger the animal(s) or other animals or endanger public health. 9 C.F.R. §§ 1.1, 2.1(a)(1), .75(b)(1), .78(a)

ADMINISTRATIVE LAW JUDGE'S DEFAULT DECISION

(AS MODIFIED)

   . . . .

   Respondent . . . has 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 as set forth [in this Decision and Order] by Respondent's failure to file an answer, are adopted and set forth [in this Decision and Order] as Findings of Fact and Conclusions of Law.

   This Decision and Order, therefore, is issued pursuant to section 1.139 of the Rules of Practice (7 C.F.R. § 1.139).

Findings of Fact and Conclusions of Law

   1. James J. Everhart . . . is an individual whose address is 401 South Park, Springfield, Illinois 62704.

   2. Respondent, at all times material herein, was operating as a dealer as defined in the [Animal Welfare] Act and the Regulations.

   3. Respondent willfully violated section 4 of the [Animal Welfare] Act (7 U.S.C. § 2134) and section 2.1 of the Regulations (9 C.F.R. § 2.1) by operating as a dealer as defined in the [Animal Welfare] Act and the Regulations without having obtained a license. Respondent negotiated the sale of, transported, and sold, in commerce, one nonhuman primate for use as a pet or for exhibition.

   4. In April or May 1994, Respondent transported, in commerce, one nonhuman primate without it being accompanied by a health certificate executed and issued by a licensed veterinarian, in willful violation of section 2.78(a) of the Regulations (9 C.F.R. § 2.78(a)).

   5. In April or May 1994, Respondent [failed to maintain complete records showing the acquisition, disposition, and identification of one nonhuman primate,] in willful violation of section [10 of the Animal Welfare Act (7 U.S.C. § 2140) and section 2.75(b)(1) of the Regulations (9 C.F.R. § 2.75(b)(1))].

Conclusion

   1. The Secretary has jurisdiction in this matter.

   . . . .

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

   In Respondent's letter dated July 22, 1997, and filed July 28, 1997 [hereinafter Respondent's Appeal Petition], Respondent denies that he violated the Animal Welfare Act and the Regulations as alleged in the Complaint and states that he is not "liable for" the $3,000 civil penalty assessed against him in the Default Decision (Respondent's Appeal Petition). Respondent's denial of the material allegations of the Complaint comes too late.

   On September 5, 1996, Respondent was personally served at his residence with a copy of the Complaint and a copy of the Rules of Practice. [FN2]

    *6 Section 1.147(c)(3)(i) of the Rules of Practice provides:

   § 1.147 Filing; service; extensions of time; and computation of time.

   . . . .

   (c) Service on party other than the Secretary

   . . . .

   (3) Any document or paper served other than by mail, on any party to a proceeding, other than the Secretary or agent thereof, shall be deemed to be received by such party on the date of:

   . . . .

   (i) Delivery to any responsible individual at, or leaving in a conspicuous place at, the last known principal place of business of such party, last known principal place of business of the attorney or representative of record of such party, or last known residence of such party if an individual[.]

7 C.F.R. § 1.147(c)(3)(i).

   Sections 1.136, 1.139, and 1.141 of the Rules of Practice provide:

   § 1.136 Answer.

   (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. . . .

   . . . .

   (c) Default. Failure to file an answer within the time provided under § 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 § 1.138.

   § 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 without further procedure or hearing.

   § 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.

7 C.F.R. §§ 1.136(a), (c), .139, .141(a).

   The Complaint served on Respondent on September 5, 1996, states:

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

*7 Complaint at 2.

   The Complaint clearly informs Respondent of the consequences of failure to file a timely answer. Respondent's Answer was due no later than September 25, 1996. Respondent's first filing in this proceeding was filed on May 19, 1997, more than 8 months after the Complaint was served on Respondent and more than 7 months after Respondent's Answer was due. Moreover, Respondent's May 19, 1997, filing does not address the allegations in the Complaint. [FN3] Further, Respondent made two additional filings in May and June 1997, neither of which address the allegations in the Complaint. [FN4] Section 1.136(b) of the Rules of Practice provides:

   § 1.136 Answer.

   . . . .

   (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

   (2) State that the respondent admits all 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.

7 C.F.R. § 1.136(b).

   It is well settled that the formalities of court pleadings are not applicable in administrative proceedings. [FN5] However, Respondent's May 19, 1997, May 20, 1997, and June 18, 1997, filings address matters extraneous to the Complaint. Respondent's May and June 1997 filings do not: (1) admit, deny, or explain the allegations of the Complaint and set forth any defense relevant to the instant proceeding; (2) admit all the facts alleged in the Complaint; or (3) state that 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. Therefore, I do not find that Respondent's May and June 1997 filings constitute an answer as described in section 1.136 of the Rules of Practice (7 C.F.R. § 1.136); thus, Respondent's May and June 1997 filings provide no basis for setting aside the Default Decision.

   Respondent's Appeal Petition, filed July 28, 1997, is the first document filed in this proceeding that addresses the allegations in the Complaint. Respondent's Appeal Petition was filed more than 10 months after Respondent's answer was due. Respondent's failure to file a timely Answer constitutes an admission of the material allegations in the Complaint (7 C.F.R. § 1.136(a), (c)) and a waiver of hearing (7 C.F.R. §§ 1.139, .141(a)).

   On December 19, 1996, in accordance with 7 C.F.R. § 1.139, Complainant filed a Motion for Adoption of Proposed Decision and Order [hereinafter Motion for Proposed Default Decision] and a Proposed Decision and Order Upon Admission of Facts by Reason of Default [hereinafter Proposed Default Decision] based upon Respondent's failure to file an Answer to the Complaint within the time prescribed in 7 C.F.R. § 1.136(a).

    *8 On January 24, 1997, in accordance with section 1.147(c)(3)(i) of the Rules of Practice (7 C.F.R. § 1.147(c)(3)(i)), Respondent was personally served at his residence with a copy of the Motion for Proposed Default Decision and a copy of the Proposed Default Decision. [FN6]

   Respondent failed to file objections to Complainant's Motion for Proposed Default Decision and Complainant's Proposed Default Decision within 20 days, as provided in 7 C.F.R. § 1.139, and on March 5, 1997, the ALJ filed the Default Decision.

   Respondent denies the allegations in the Complaint and states that he is not "liable for" the $3,000 civil penalty assessed against him in the Default Decision (Respondent's Appeal Petition). Respondent's denial of the material allegations of the Complaint comes too late. Although on rare occasions default decisions have been set aside for good cause shown or where Complainant did not object, [FN7] Respondent has shown no basis for setting aside the Default Decision and allowing Respondent to file an Answer. [FN8]

   The Rules of Practice, a copy of which was served on Respondent on September 5, 1996, with a copy of the Complaint, clearly provides that an Answer must be filed within 20 days after the service of the Complaint (7 C.F.R. § 1.136(a)). Respondent's first filing in this proceeding was filed May 19, 1997, more than 8 months after Respondent was served with the Complaint and more than 7 months after Respondent's Answer was due. Moreover, Respondent's Appeal Petition, filed July 28, 1997, more than 10 months after Respondent's Answer was due, is Respondent's first and only filing which addresses the allegations in the Complaint and which could be construed to be an Answer to the Complaint.

   The requirement in the Rules of Practice that Respondent 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 four ALJ's frequently dispose of hundreds of cases in a year. In recent years, the Department's Judicial Officer has disposed of 40 to 60 cases per year.

   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. [FN9] If Respondent were permitted to contest some of the allegations of fact after failing to file a timely Answer, 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.

   The record clearly establishes that Respondent was provided with a meaningful opportunity for a hearing in accordance with the Rules of Practice. Respondent waived his right to a hearing by failing to file a timely Answer (7 C.F.R. §§ 1.139, .141(a)). Moreover, Respondent's failure to file a timely Answer is deemed, for the purposes of this proceeding, to be an admission of the allegations in the Complaint (7 C.F.R. § 1.136(c)).

    *9 Respondent requests that "the Department of Agriculture . . . waive the three thousand dollars and also suspend, indefinitely, [his Animal Welfare Act license]." (Respondent's Appeal Petition.) In support of this request, Respondent states that:

   To pay the three thousand dollars, that I am not liable for, would cause a great hardship on myself. I am disabled and live on a fixed income, with no assets or available money to pay such a great amount.

Respondent's Appeal Petition.

   Respondent's inability to pay the civil penalty is not a consideration in determining civil penalties assessed under the Animal Welfare Act. Section 19(b) of the Animal Welfare Act specifically provides the factors to be considered when determining the amount of a civil penalty and ability to pay is not one of the statutory factors to be considered. [FN10] While the Judicial Officer did give consideration to ability to pay in one case, [FN11] the Judicial Officer subsequently held that consideration of ability to pay in that case was inadvertent error and that ability to pay would not be considered in determining the amount of civil penalties assessed under the Animal Welfare Act in the future. [FN12] Therefore, while I sympathize with Respondent's current financial circumstances, Respondent's financial condition forms no basis for setting aside or modifying the Default Decision.

   Moreover, Respondent's disability is not a mitigating factor and forms no basis for setting aside or modifying the Default Decision. [FN13]

   Accordingly, the Default Decision was properly issued in this proceeding. Application of the default provisions of the Rules of Practice does not deprive Respondent of his rights under the due process clause of the Fifth Amendment to the United States Constitution. See United States v. Hulings, 484 F. Supp. 562, 568-69 (D. Kan. 1980). There is no basis for allowing Respondent to present matters by way of defense at this time.

   On August 8, 1997, Complainant filed Complainant's Response and Motion to Modify in which Complainant requests the modification of the Order in the Default Decision and states that Respondent joins in the motion to modify the Order in the Default Decision as follows:

   Complainant also requests that the order contained in the default decision issued March 5, 1997, be modified as proposed herein. The Respondent has been contacted by Complainant's attorney and does not object to the Complainant's proposed order. The Respondent has stated that he joins the Complainant's motion to modify the order issued on March 5, 1997.

   . . . .

   Complainant requests that the Judicial Officer's Order issued in this matter on March 5, 1997, be modified as follows:

Order

   1. Respondent is assessed a civil penalty of $3,000, which is hereby suspended provided that the respondent does not violate the Animal Welfare Act or the Regulations and Standards issued under the Animal Welfare Act for a period of ten years from the effective date of this order.

    *10 2. Respondent, his agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Animal Welfare Act and the Regulations and Standards issued under the Animal Welfare Act, and in particular, shall cease and desist from engaging in any activity for which a license is required under the Animal Welfare Act and the Regulations issued under the Animal Welfare Act.

   3. Respondent is permanently disqualified from obtaining a license under the Animal Welfare Act and Regulations issued under the Animal Welfare Act.

Complainant's Response and Motion to Modify at 1, 4 (footnote omitted).

   Complainant's Response and Motion to Modify was served on Respondent by certified mail on August 29, 1997, and Respondent did not file a response. Complainant's motion to modify the Order in the Default Decision issued in this proceeding on March 5, 1997, which I find that Respondent has joined, is granted.

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

Order

   1. Respondent is assessed a civil penalty of $3,000, which is hereby suspended, provided that Respondent does not violate the Animal Welfare Act or the Regulations and Standards issued under the Animal Welfare Act, for a period of 10 years from the effective date of this Order. Respondent shall not be required to pay the $3,000 civil penalty if Respondent does not violate the Animal Welfare Act or the Regulations and Standards issued under the Animal Welfare Act within 10 years from the effective date of this Order.

   2. Respondent, his agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Animal Welfare Act and the Regulations and Standards issued under the Animal Welfare Act, and in particular, shall cease and desist from engaging in any activity for which a license is required under the Animal Welfare Act and the Regulations issued under the Animal Welfare Act.

   3. Respondent is permanently disqualified from obtaining a license under the Animal Welfare Act and the Regulations issued under the Animal Welfare Act.

   4. This Order shall become effective upon 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); section 4(a) of Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219, 3221 (1953), reprinted in 5 U.S.C. app. § 4(a) at 1491 (1994); and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. § 6912(a)(1)).

FN2 An affidavit of Harry G. Dawson, dated October 11, 1996, filed on October 17, 1996, states:

   I, (name of affiant) Harry G. Dawson, being duly sworn on oath make the following statement: On September 5, 1996, pursuant to [s]ection 1.147(c)(3)(i) of the Uniform Rules of Practice (7 CFR 1.130, etc), I personally served a copy of the Complaint and Rules of Practice in AWA Docket No. 96-51 on James J. Everhart by attaching the copies to Mr. Everhart's front door of his residence located at 401 South Park, Springfield, Illinois 62704.

FN3 On May 19, 1997, Respondent filed two copies of a Motion to Amend which he had filed in In re Jimmy J. Everhart, Case No. 97-70771 (Bankr. C.D. Ill. filed May 14, 1997).

FN4 On May 20, 1997, Respondent filed a copy of a Notice of Amendment which had been filed in In re Jimmy J. Everhart, Case No. 97-70771 (Bankr. C.D. Ill. filed May 14, 1997), and on June 18, 1997, Respondent filed a copy of a Notice of Objection Date which had been filed in In re Jimmy J. Everhart, Case No. 97-70771 (Bankr. C.D. Ill. filed May 29, 1997) and two copies of Discharge of Debtor which had been filed in In re Jimmy J. Everhart, Case No. 97-70771 (Bankr. C.D. Ill. filed June 11, 1997).

FN5 Wallace Corp. v. NLRB, 323 U.S. 248, 253 (1944); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 142-44 (1940); NLRB v. Int'l Bros. of Elec. Workers, Local Union 112, 827 F.2d 530, 534 (9th Cir. 1987); Citizens State Bank of Marshfield v. FDIC, 751 F.2d 209, 213 (8th Cir. 1984); Consolidated Gas Supply Corp. v. FERC, 611 F.2d 951, 959 n.7 (4th Cir. 1979); Aloha Airlines, Inc. v. CAB, 598 F.2d 250, 262 (D.C. Cir. 1979); A.E. Staley Mfg. Co. v. FTC, 135 F.2d 453, 454 (7th Cir. 1943).

FN6 An affidavit of Harry G. Dawson, dated January 24, 1997, filed on February 11, 1997, states:

   I, (name of affiant) Harry G. Dawson, being duly sworn on oath make the following statement: . . . . On Friday, January 24, 1997, at approximately 9:30 am, I went to the residence address of James J. Everhart at 401 South Park, Springfield, Illinois 62702 to deliver copies of the Complainant's Motion for Adoption of Proposed Decision and Order together with Proposed Decision and Order Upon Admission of Fact by Reason of Default for personal service. AWA Docket No 96-0051. HGD No one responded at the James J. Everhart residence. Therefore, according to my instructions for personal service, I taped the copies to Mr. Everhart's front door. I then took photographs of the taped information, which I had enclosed in an envelop [sic]. Also present in the photographs was the identical Chevrolet Blazer, Illinois license plate E 3737 (which is licensed to James J. Everhart). The photographs which I took were processed on this date and also submitted to Regulatory Enforcement staff are included with this sworn statement. I have read this statement, and it is true & correct to the best of my knowledge.

FN7 See generally In re Arizona Livestock Auction, Inc., 55 Agric. Dec. 1121 (1996) (setting aside a default decision because facts alleged in the Complaint and deemed admitted by failure to answer were not sufficient to find a violation of the Packers and Stockyards Act or jurisdiction over the matter by the Secretary of Agriculture); In re Veg-Pro Distributors, 42 Agric. Dec. 273 (1983) (remand order), final decision, 42 Agric. Dec. 1173 (1983) (setting aside a default decision 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); In re Vaughn Gallop, 40 Agric. Dec. 217 (vacating a default decision and remanding the case to determine whether just cause exists for permitting late Answer), final decision, 40 Agric. Dec. 1254 (1981).

FN8 See generally In re Dean Byard (Decision as to Dean Byard), 56 Agric. Dec. ___ (Aug. 8, 1997) (holding that the default decision was proper where respondent's answer was over 2 years late); In re Spring Valley Meats, Inc. (Decision as to Spring Valley Meats, Inc.), 56 Agric. Dec. ___ (Aug. 1, 1997) (holding the default decision proper where respondents' December 13, 1996, filing, even if found to be an answer, was filed 46 days after the complaint was served on respondents); In re Spring Valley Meats, Inc. (Decision as to Charles Contris), 56 Agric. Dec. ___ (Aug. 1, 1997) (holding the default decision proper where respondents' December 13, 1996, filing, even if found to be an answer, was filed 46 days after the complaint was served on respondents); In re John Walker, 56 Agric. Dec. ___ (Mar. 21, 1997) (holding the default decision proper where respondent's first filing was 126 days after the complaint was served on respondent); In re Mary Meyers, 56 Agric. Dec. ___ (Mar. 13, 1997) (holding the default decision proper where respondent's first filing was filed 117 days after respondent's answer was due); In re Dora Hampton, 56 Agric. Dec. ___ (Jan. 15, 1997) (holding the default decision proper where respondent's first and only filing in the proceeding was filed 135 days after respondent's answer was due); In re Gerald Funches, 56 Agric. Dec. ___ (Jan. 15, 1997) (holding the default decision proper where respondent's first and only filing in the proceeding was filed 94 days after the complaint was served on respondent); In re City of Orange, 55 Agric. Dec. 1081 (1996) (holding that the default decision proper where respondent's first and only filing in the proceeding was filed 70 days after respondent's answer was due); In re Bibi Uddin, 55 Agric. Dec. 1010 (1996) (holding the default decision proper where response to complaint was filed more than 9 months after service of complaint on respondent); In re Billy Jacobs, Sr., 56 Agric. Dec. ___ (Aug. 15, 1996) (holding the default decision proper where response to complaint was filed more than 9 months after service of complaint on respondent), appeal docketed, No. 96-7124 (11th Cir. Nov. 8, 1996); In re Sandra L. Reid, 55 Agric. Dec. 996 (1996) (holding the default decision proper where response to complaint was filed 43 days after service of complaint on respondent); In re Jeremy Byrd, 55 Agric. Dec. 443 (1996) (holding the default order proper where a timely answer not filed); In re Moreno Bros., 54 Agric. Dec. 1425 (1995) (holding the default order proper where a timely answer was not filed); In re Ronald DeBruin, 54 Agric. Dec. 876 (1995) (holding the default order proper where an answer was not filed); In re James Joseph Hickey, Jr., 53 Agric. Dec. 1087 (1994) (holding the default order proper where an answer was not filed); In re Bruce Thomas, 53 Agric. Dec. 1569 (1994) (holding the default order proper where an answer was not filed); In re Ron Morrow, 53 Agric. Dec. 144 (1994), aff'd per curiam, 65 F.3d 168 (Table), 1995 WL 523336 (6th Cir. 1995) (holding the default order proper where respondent was given an extension of time until March 22, 1994, to file an answer, but it was not received until March 25, 1994); In re Donald D. Richards, 52 Agric. Dec. 1207 (1993) (holding the default order proper where timely answer was not filed); In re A.P. Holt (Decision as to A.P. Holt), 50 Agric. Dec. 1612 (1991) (holding the default order proper where respondent was given an extension of time to file an answer, but the answer was not filed until 69 days after the extended date for filing the answer); In re Mike Robertson, 47 Agric. Dec. 879 (1988) (holding the default order proper where answer was not filed); In re Morgantown Produce, Inc., 47 Agric. Dec. 453 (1988) (holding the default order proper where an answer was not filed); In re Johnson-Hallifax, Inc., 47 Agric. Dec. 430 (1988) (holding the default order proper where an answer was not filed); In re Charley Charton, 46 Agric. Dec. 1082 (1987) (holding the default order proper where an answer was not filed); In re Les Zedric, 46 Agric. Dec. 948 (1987) (holding the default order proper where a timely answer not filed); In re Arturo Bejarano, Jr., 46 Agric. Dec. 925 (1987) (holding the default order proper where a timely answer not filed and finding 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) (holding the default order proper where a timely answer was not filed); In re Roy Carter, 46 Agric. Dec. 207 (1987) (holding the default order proper where a timely answer was not filed and finding 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) (holding the default order proper where an answer was not filed); In re Elmo Mayes, 45 Agric. Dec. 2320 (1986) (holding the default order proper where an answer was not filed), rev'd on other grounds, 836 F.2d 550, 1987 WL 27139 (6th Cir. 1987); In re Leonard McDaniel, 45 Agric. Dec. 2255 (1986) (holding the default order proper where a timely answer was not filed); In re Joe L. Henson, 45 Agric. Dec. 2246 (1986) (holding the default order proper where the answer admits or does not deny material allegations); In re Northwest Orient Airlines, 45 Agric. Dec. 2190 (1986) (holding the default order proper where a timely answer was not filed); In re J.W. Guffy, 45 Agric. Dec. 1742 (1986) (holding the default order proper where an answer, filed late, does not deny material allegations); In re Wayne J. Blaser, 45 Agric. Dec. 1727 (1986) (holding the default order proper where the answer does not deny material allegations); In re Jerome B. Schwartz, 45 Agric. Dec. 1473 (1986) (holding the default order proper where a timely answer not filed); In re Midas Navigation, Ltd., 45 Agric. Dec. 1676 (1986) (holding the default order proper where an answer, filed late, does not deny material allegations); In re Gutman Bros., Ltd., 45 Agric. Dec. 956 (1986) (holding the default order proper where the answer does not deny material allegations); In re Dean Daul, 45 Agric. Dec. 556 (1986) (holding the default order proper where the answer, filed late, does not deny material allegations); In re Eastern Air Lines, Inc., 44 Agric. Dec. 2192 (1985) (holding the default order proper where a timely answer was not filed and finding it irrelevant that respondent's main office did not promptly forward complaint to its attorneys); In re Carl D. Cuttone, 44 Agric. Dec. 1573 (1985) (holding the default order proper where a timely answer was not filed and finding 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) (holding the default order proper where a timely answer was not filed); In re Ronald Jacobson, 43 Agric. Dec. 780 (1984) (holding the default order proper where a timely answer was not filed); In re Joseph Buzun, 43 Agric. Dec. 751 (1984) (holding the default order proper where a timely answer was not filed and finding Respondent Joseph Buzun properly served where complaint sent by certified mail to his residence was signed for by someone named Buzun); In re Ray H. Mayer (Decision as to Jim Doss), 43 Agric. Dec. 439 (1984) (holding the default order proper where a timely answer was not filed and finding irrelevant respondent's inability to afford an attorney), appeal dismissed, No. 84-4316 (5th Cir. July 25, 1984); In re William Lambert, 43 Agric. Dec. 46 (1984) (holding the default order proper where a timely answer was not filed); In re Randy & Mary Berhow, 42 Agric. Dec. 764 (1983) (holding the default order proper where a timely answer was not filed); In re Danny Rubel, 42 Agric. Dec. 800 (1983) (holding the default order proper where respondent acted without an attorney and did not understand the consequences and scope of a suspension order); In re Pastures, Inc., 39 Agric. Dec. 395, 396-97 (1980) (holding the 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) (holding the default order proper where a timely answer was not filed); In re Thomaston Beef & Veal, Inc., 39 Agric. Dec. 171, 172 (1980) (refusing to set aside the default order because of respondents' contentions that they misunderstood the Department's procedural requirements, when there is no basis for the misunderstanding).

FN9 See FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143 (1940) (stating 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); Seacoast Anti-Pollution League v. Costle, 597 F.2d 306, 308 (1st Cir. 1979) (stating that absent law to the contrary, agencies enjoy wide latitude in fashioning procedural rules); Silverman v. CFTA, 549 F.2d 28, 33 (7th Cir. 1977) (stating 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); Nader v. FCC, 520 F.2d 182, 195 (D.C. Cir. 1975) (holding that regulatory agencies should be free to fashion their own rules of procedure and to pursue methods for inquiry capable of permitting them to discharge their multitudinous duties and that regulatory agencies have discretion to control disposition of their caseload); Swift & Co. v. United States, 308 F.2d 849, 851-52 (7th Cir. 1962) (stating that administrative convenience or even necessity cannot override constitutional requirements, however, in administrative hearings, the hearing examiner has wide latitude as to all phases of the conduct of the hearing, including the manner in which the hearing will proceed); Cella v. United States, 208 F.2d 783, 789 (7th Cir. 1953) (stating 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), cert. denied, 347 U.S. 1016 (1954).

FN10 Section 19(b) of the Animal Welfare Act provides with respect to the assessment of a civil penalty that:

   The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations.

7 U.S.C. § 2149(b).

FN11 In re Gus White III, 49 Agric. Dec. 123, 152 (1990).

FN12 See In re Mr. & Mrs. Stan Kopunec, 52 Agric. Dec. 1016, 1023 (1993) (stating that ability to pay a civil penalty is not a relevant consideration in Animal Welfare Act cases); In re Micheal McCall, 52 Agric. Dec. 986, 1008 (1993) (stating that ability or inability to pay is not a criterion in Animal Welfare Act cases); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1071 (1992) (stating that the Judicial Officer once gave consideration to the ability of respondents to pay a civil penalty, but that the Judicial Officer has removed the ability to pay as a criterion, since the Animal Welfare Act does not require it), aff'd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)); In re Jerome A. Johnson, 51 Agric. Dec. 209, 216 (1992) (stating that the holding in In re Gus White III, 49 Agric. Dec. 123 (1990), as to consideration of ability to pay, was an inadvertent error; ability to pay is not a factor specified in the Animal Welfare Act and it will not be considered in determining future civil penalties under the Animal Welfare Act).

FN13 Cf. In re Dora Hampton, 56 Agric. Dec. ___, slip op. at 22 (Jan. 15, 1997) (stating that age cannot be considered either as a defense to respondent's violations of the Animal Welfare Act, the Regulations, and the Standards, or as a mitigating factor); In re Volpe Vito Inc., 56 Agric. Dec. ___, slip op. 112-13 (Jan. 13, 1997) (stating that failing health is not a defense to violations of the Animal Welfare Act, the Regulations, and the Standards, and is not considered as a mitigating factor).

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