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

In re: PETER A. LANG, d/b/a SAFARI WEST
United States
57 Agric. Dec. 91 (1998)


Case Details
Printable Version
Summary:   Proof of willfulness is not prerequisite to concluding that respondent violated Animal Welfare Act or assessing civil penalty or issuing cease and desist order.

Judge Initial Decision issued by Victor W. Palmer, Chief Administrative Law Judge. Order issued by William G. Jenson, Judicial Officer. delivered the opinion of the court.


Opinion of the Court:

   The 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 and standards issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-3.142) [hereinafter the Regulations and Standards]; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice], by filing a Complaint on October 2, 1995.

    *2 The Complaint alleges that: (1) on or about June 8, 1994, Peter A. Lang, d/b/a Safari West [hereinafter Respondent], transported three lechwes in a manner that caused trauma, behavioral stress, and physical harm and resulted in the death of one of the lechwes, in violation of section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)) (Compl. ¶ 3); (2) on or about June 9, 1994, Respondent failed to ensure that animals that were being transported were observed at least once every 4 hours, in willful violation of section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and section 3.140(a) of the Standards (9 C.F.R. § 3.140(a)) (Compl. ¶ 4); and (3) on or about June 10, 1994, Respondent handled two lechwes in a manner that caused trauma, behavioral stress, and physical harm and resulted in the death of one of the lechwes, in violation of section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)) (Compl. ¶ 5).

   On October 25, 1995, Respondent filed an Answer denying the material allegations in the Complaint. Chief Administrative Law Judge Victor W. Palmer [hereinafter Chief ALJ] presided over a hearing in San Francisco, California, from December 10, 1996, through December 12, 1996. Colleen A. Carroll, Esq., Office of the General Counsel, United States Department of Agriculture, represented Complainant. Respondent appeared pro se.

   On March 11, 1997, Complainant filed Complainant's Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof; on April 30, 1997, Respondent filed Respondent's Proposed Findings of Fact, Conclusions of Law, Brief and Summary in Support Thereof; and on May 15, 1997, Complainant filed Complainant's Reply to Respondents' [sic] Proposed Findings of Fact, Conclusions of Law, Brief and Summary in Support Thereof.

   On May 20, 1997, the Chief ALJ issued a Decision and Order [hereinafter Initial Decision and Order] in which the Chief ALJ: (1) concluded that with respect to one lechwe that died on June 10, 1994, Respondent failed to handle the animal as expeditiously and carefully as possible so as to prevent trauma, behavioral stress, physical harm, and unnecessary discomfort, in violation of section 2.131(a)(1) of the Regulations (9 C.F.R § 2.131(a)(1)) (Initial Decision and Order at 8); (2) ordered Respondent to cease and desist from failing to handle animals as expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort (Initial Decision and Order at 20); and (3) assessed Respondent a civil penalty of $1,500 (Initial Decision and Order at 20).

   On July 11, 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 failed to file a timely response to Respondent's Appeal, and on October 31, 1997, the Hearing Clerk transmitted the record of this proceeding to the Judicial Officer for decision.

    *3 On January 13, 1998, I issued a Decision and Order: (1) concluding that Respondent failed to handle a lechwe that died on June 10, 1994, as expeditiously and carefully as possible in a manner that did not cause trauma, behavioral stress, physical harm, and unnecessary discomfort, in violation of section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)); (2) assessing Respondent a civil penalty of $1,500; and (3) ordering Respondent to cease and desist from failing to handle animals as expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort. In re Peter A. Lang, 57 Agric. Dec. ___, slip op. at 16, 43-44 (Jan. 13, 1998).

   On March 12, 1998, Respondent filed Petition for Reconsideration, and on May 1, 1998, Complainant filed Complainant's Reply to Respondent's Petition for Reconsideration. On May 5, 1998, the Hearing Clerk transmitted the record of this proceeding to the Judicial Officer for reconsideration of the Decision and Order issued January 13, 1998.

Applicable Statutory Provisions, Regulations, and Standards

   7 U.S.C.:

TITLE 7--AGRICULTURE

   . . . .

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

   . . . .

   § 2132. Definitions

   When used in this chapter--

   . . . .

   (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

   (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[.]

   7 U.S.C. § 2132(f).

   9 C.F.R.:

TITLE 9--ANIMALS AND ANIMAL PRODUCTS

CHAPTER I--ANIMAL AND PLANT HEALTH INSPECTION SERVICE, DEPARTMENT OF AGRICULTURE

SUBCHAPTER A--ANIMAL WELFARE

PART 1--DEFINITION OF TERMS

   § 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 for 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.

    *4 . . . .

PART 2--REGULATIONS

. . . .

SUBPART H--COMPLIANCE WITH STANDARDS AND HOLDING PERIOD

   § 2.100 Compliance with standards.

   (a) Each dealer, exhibitor, operator of an auction sale, and intermediate handler shall comply in all respects with the regulations set forth in part 2 and the standards set forth in part 3 of this subchapter for the humane handling, care, treatment, housing, and transportation of animals.

   . . . .

SUBPART I--MISCELLANEOUS

   . . . .

   § 2.131 Handling of animals.

   (a) (1) Handling of all animals shall be done as expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort.

   . . . .

PART 3--STANDARDS

   . . . .

   SUBPART F--SPECIFICATIONS FOR THE HUMANE HANDLING, CARE, TREATMENT, AND TRANSPORTATION OF WARMBLOODED ANIMALS OTHER THAN DOGS, CATS, RABBITS, HAMSTERS, GUINEA PIGS, NONHUMAN PRIMATES, AND MARINE MAMMALS

   . . . .

TRANSPORTATION STANDARDS

   . . . .

   § 3.140 Care in transit.

   (a) During surface transportation, it shall be the responsibility of the driver or other employee to visually observe the live animals as frequently as circumstances may dictate, but not less than once every 4 hours, to assure that they are receiving sufficient air for normal breathing, their ambient temperatures are within the prescribed limits, all other applicable standards are being complied with and to determine whether any of the live animals are in obvious physical distress and to provide any needed veterinary care as soon as possible. . . . No animal in obvious physical distress shall be transported in commerce.

   9 C.F.R. §§ 1.1; 2.100(a), .131(a)(1); 3.140(a).

   Prior to addressing the specific issues raised by Respondent in his Petition for Reconsideration, there are two general aspects of Respondent's Petition for Reconsideration that must be addressed. First, Respondent requests reconsideration of the Initial Decision and Order issued by the Chief ALJ on May 20, 1997, as well as the Decision and Order issued on January 13, 1998 (Pet. for Recons. at 2).

   Section 1.143(a) and (b)(1) of the Rules of Practice requires a ruling on all motions and requests, as follows:

   § 1.143 Motions and requests.

   (a) General. All motions and requests shall be filed with the Hearing Clerk, and served upon all the parties, except (1) requests for extensions of time pursuant to § 1.147, (2) requests for subpoenas pursuant to § 1.149, and (3) motions and requests made on the record during the oral hearing. The Judge shall rule upon all motions and requests filed or made prior to filing an appeal of the Judge's decision pursuant to § 1.145, except motions directly relating to the appeal. Thereafter, the Judicial Officer will rule on any motions and requests, as well as the motions directly relating to the appeal.

    *5 (b) Motions entertained. (1) Any motion will be entertained other than a motion to dismiss on the pleading.

   7 C.F.R. § 1.143(a), (b)(1).

   Section 1.143(b)(1) of the Rules of Practice (7 C.F.R. § 1.143(b)(1)) provides that any motion will be entertained other than a motion to dismiss on the pleading. Generally, the word any is broadly inclusive. [FN2] Section 1.143(a) of the Rules of Practice (7 C.F.R. § 1.143(a)) provides that the administrative law judge shall rule upon all motions and requests filed or made prior to filing an appeal of the administrative law judge's decision pursuant to 7 C.F.R. § 1.145, except motions directly relating to the appeal. Thereafter, the Judicial Officer will rule on any motions or requests. As commonly used, the word all does not permit an exception or exclusion not specified. [FN3] Moreover, the context in which the words all and any are used in section 1.143(a) of the Rules of Practice (7 C.F.R. § 1.143(a)) and section 1.143(b)(1) of the Rules of Practice (7 C.F.R. § 1.143(b)(1)), respectively, provides no basis for reading the words all and any narrowly.

   Thus, I find section 1.143(b)(1) of the Rules of Practice (7 C.F.R. § 1.143(b)(1)) requires the Judicial Officer to entertain Respondent's Petition for Reconsideration of the Chief ALJ's Initial Decision and Order, which was filed after the filing of an appeal, and section 1.143(a) of the Rules of Practice (7 C.F.R. § 1.143(a)) requires the Judicial Officer to rule on Respondent's Petition for Reconsideration of the Chief ALJ's Initial Decision and Order.

   However, section 1.142(c)(4) of the Rules of Practice provides, as follows:

   § 1.142 Post-hearing procedure.

   . . . .

   (c) Judge's decision. . . .

   . . . .

   (4) The Judge's decision shall become effective without further proceedings 35 days after the issuance of the decision, if announced orally at the hearing, or if the decision is in writing, 35 days after the date of service thereof upon the respondent, unless there is an appeal to the Judicial Officer by a party to the proceeding pursuant to § 1.145; Provided, however, that no decision shall be final for purposes of judicial review except a final decision of the Judicial Officer upon appeal.

   7 C.F.R. § 1.142(c)(4).

   On July 11, 1997, Respondent filed a timely appeal to the Judicial Officer pursuant to 7 C.F.R. § 1.145. Consequently, while the Initial Decision and Order is part of the record, [FN4] the Initial Decision and Order never became effective and no purpose relevant to this proceeding would be served by reconsidering the Initial Decision and Order.

   Further, section 1.146(a)(3) of the Rules of Practice provides that a party to a proceeding may seek reconsideration of the decision of the Judicial Officer, as follows:

   § 1.146 Petitions for reopening hearing; for rehearing or reargument of proceeding; or for reconsideration of the decision of the Judicial Officer.

    *6 (a) Petition requisite. . . .

   . . . .

   (3) Petition to rehear or reargue proceeding, or to reconsider the decision of the Judicial Officer. A petition to rehear or reargue the proceeding or to reconsider the decision of the Judicial Officer shall be filed within 10 days after the date of service of such decision upon the party filing the petition. Every petition must state specifically the matters claimed to have been erroneously decided and alleged errors must be briefly stated.

   7 C.F.R. § 1.146(a)(3).

   Thus, petitions for reconsideration filed pursuant to section 1.146(a)(3) of the Rules of Practice (7 C.F.R. § 1.146(a)(3)) after the Judicial Officer's decision has been issued relate to reconsideration of the Judicial Officer's decision only. [FN5]

   Therefore, Respondent's Petition for Reconsideration, as it relates to the Chief ALJ's Initial Decision and Order, is denied. [FN6]

   Second, Respondent attaches to his Petition for Reconsideration new evidence [FN7] in support of his Petition for Reconsideration. Section 1.146(a)(2) of the Rules of Practice provides that either party may file a petition to reopen a hearing to take further evidence, as follows:

   § 1.146 Petitions for reopening hearing; for rehearing or reargument of proceeding; or for reconsideration of the decision of the Judicial Officer.

   (a) Petition requisite. . . .

   . . . .

   (2) Petition to reopen hearing. A petition to reopen a hearing to take further evidence may be filed at any time prior to the issuance of the decision of the Judicial Officer. Every such petition shall state briefly the nature and purpose of the evidence to be adduced, shall show that such evidence is not merely cumulative, and shall set forth a good reason why such evidence was not adduced at the hearing.

   7 C.F.R. § 1.146(a)(2).

   Respondent did not file a petition to reopen the hearing. Therefore, the new evidence [FN8] attached to the Petition for Reconsideration is not part of the record of this proceeding, and I have not considered this new evidence in connection with the Petition for Reconsideration.

   Respondent raises eight issues in his Petition for Reconsideration. First, Respondent contends that the allegations in the Complaint have caused him "to lose his ability to conduct business with a majority of the zoos in North America" and have "completely ruined" his reputation (Pet. for Recons. at 3).

   The Administrative Procedure Act provides that notice of matters of fact and law asserted must be provided to those entitled to notice of an agency hearing, as follows:

   § 554. Adjudications

   . . . .

   (b) Persons entitled to notice of an agency hearing shall be timely informed of--

   (1) the time, place, and nature of the hearing;

   (2) the legal authority and jurisdiction under which the hearing is to be held; and

   (3) the matters of fact and law asserted.

   5 U.S.C. § 554(b) (emphasis added).

    *7 Similarly, the Rules of Practice require that allegations of fact and provisions of law that form a basis for the proceeding must be included in a complaint, as follows:

   § 1.132 Definitions.

   As used in this subpart, the terms as defined in the statute under which the proceeding is conducted and in the regulations, standards, instructions, or orders issued thereunder, shall apply with equal force and effect. In addition and except as may be provided otherwise in this subpart:

   . . . .

   Complaint means the formal complaint, order to show cause, or other document by virtue of which a proceeding is instituted.

   . . . .

   § 1.133 Institution of proceedings.

   . . . .

   (b) Filing of complaint or petition for review. (1) If there is reason to believe that a person has violated or is violating any provision of a statute listed in § 1.131[ [FN9]] or any regulation, standard, instruction or order issued pursuant thereto, whether based on information furnished under paragraph (a) of this section or other information, a complaint may be filed with the Hearing Clerk pursuant to these rules.

   . . . .

   § 1.135 Contents of complaint or petition for review.

   (a) Complaint. A complaint filed pursuant to § 1.133(b) shall state briefly and clearly the nature of the proceeding, the identification of the complainant and the respondent, the legal authority and jurisdiction under which the proceeding is instituted, the allegations of fact and provisions of law which constitute a basis for the proceeding, and the nature of the relief sought.

   7 C.F.R. §§ 1.132, .133(b), .135(a) (emphasis added).

   Moreover, while it is well settled that the formalities of court pleading are not applicable in administrative proceedings, [FN10] due process applies and the Complaint in an administrative proceeding must reasonably apprise the litigant of the issues in controversy. [FN11] Therefore, in order to comply with the Administrative Procedure Act and the Rules of Practice, the Complaint must include allegations of fact and provisions of law that constitute a basis for the proceeding, and in order to comply with the Due Process Clause of the Fifth Amendment to the Constitution of the United States, the Complaint must apprise Respondent of the issues in controversy. While I find it unfortunate that mere allegations in a complaint would harm any respondent's business or reputation, this proceeding may only be instituted by filing a complaint and including in the complaint allegations of fact and provisions of law which constitute a basis for the proceeding.

   Second, Respondent "wonders if the $1,500" civil penalty assessed against him "is so important to the government when the consequences [to Respondent's business of merely instituting this proceeding against Respondent] are so huge." (Pet. for Recons. at 3.)

   Section 19(b) of the Animal Welfare Act (7 U.S.C. § 2149(b)) specifically provides the factors to be considered when determining the amount of the civil penalty to be assessed against a violator: (1) the appropriateness of the penalty with respect to the size of the business of the person involved; (2) the gravity of the violation; (3) the person's good faith; and (4) the history of previous violations. [FN12] I examined each of the factors required to be considered (7 U.S.C. § 2149(b)) when I assessed a $1,500 civil penalty against Respondent, and I addressed these factors in the Decision and Order. In re Peter A. Lang, 57 Agric. Dec. ___, slip op. at 29 (Jan. 13, 1998). The impact on a respondent's business of the institution of a disciplinary proceeding under the Animal Welfare Act is not one of the statutory factors required to be considered when determining the amount of the civil penalty to be assessed against a respondent. Therefore, even if I found that the institution of this disciplinary proceeding had a significant adverse impact on Respondent's business, that impact would not be considered when determining the amount of the civil penalty to be assessed against Respondent. [FN13]

    *8 Third, Respondent contends that:

   Because Respondent was charged with causing the death of the male lechwe, and because the [Judicial Officer] has rejected the allegation that the Respondent's conduct in fact caused the animal's death, the Respondent has been found not guilty of the offence with which he was charged and cannot be found guilty of an uncharged lesser offense.

   Pet. for Recons. at 3.

   I disagree with Respondent's contention that he was not found to have violated a Regulation which he is alleged in the Complaint to have violated. The Complaint alleges, inter alia, that:

   5. On or about June 10, 1994, respondents [sic] violated section 2.131(a) of the Regulations, (9 C.F.R. § 2.131(a)), by handling two lechwes in a manner that caused trauma, behavioral stress and physical harm, and resulted in the death of one of the lechwes.

   Compl. ¶ 5.

   I concluded that, with respect to the lechwe that died on June 10, 1994, Respondent violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)) as alleged in the Complaint, as follows:

Conclusions of Law

   . . . .

   4. With respect to the lechwe that died on June 10, 1994, the record evidence establishes that Respondent failed to handle the animal as expeditiously and carefully as possible [in a manner that did not cause] trauma, behavioral stress, physical harm, and unnecessary discomfort, in violation of [section 2.131(a)(1) of the Regulations] (9 C.F.R. § 2.131(a)(1)).

   In re Peter A. Lang, 57 Agric. Dec. ___, slip op. at 16 (Jan. 13, 1998).

   While the Complaint alleges that Respondent handled two lechwes in a manner that resulted in the death of one of the lechwes (Compl. ¶ 5), death is not an element that must be proven in order to prove a violation of section 2.131(a)(1) of the Regulations. One of the purposes of section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)) is to prevent death; however, the regulatory provision is explicitly designed to prevent trauma, overheating, excessive cooling, behavioral stress, physical harm, and even unnecessary discomfort to animals (9 C.F.R. § 2.131(a)(1)). Therefore, Respondent's actions and failures to act need not have been the cause of the June 10, 1994, death of the lechwe in question in order to find that Respondent violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)). Consequently, Complainant is not required to prove that Respondent's handling of the lechwes resulted in the death of one of the lechwes, even though Complainant gratuitously alleges in the Complaint that Respondent handled two lechwes in a manner that caused the death of one of the lechwes.

   Fourth, Respondent contends that the Complaint should be dismissed because Complainant failed to prove that Respondent willfully violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)) (Pet. for Recons. at 5-6).

   I disagree with Respondent's contention that Complainant must prove willfulness in order to prove that Respondent violated the Animal Welfare Act or the Regulations and Standards. Proof of willfulness is not a prerequisite to concluding that a respondent has violated the Animal Welfare Act or the Regulations and Standards or assessing a civil penalty or issuing a cease and desist order in accordance with section 19(b) of the Animal Welfare Act (7 U.S.C. § 2149(b)). [FN14]

    *9 Fifth, Respondent contends that there is no proof that he violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)), and the decision of the Judicial Officer is arbitrary (Pet. for Recons. at 6-35).

   I disagree with Respondent's contention that there is no proof that he violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)). As fully explicated in In re Peter A. Lang, 57 Agric. Dec. ___ (Jan. 13, 1998), I found that Complainant proved by a preponderance of the evidence [FN15] that Respondent, in violation of section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)), failed to handle a lechwe that died on June 10, 1994, as expeditiously and carefully as possible in a manner that did not cause trauma, behavioral stress, physical harm, and unnecessary discomfort. None of Respondent's arguments in his Petition for Reconsideration persuades me that Complainant failed to prove by a preponderance of the evidence that Respondent violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)).

   Sixth, Respondent contends that the Complaint was amended after the hearing started depriving him of an adequate opportunity to prepare a defense (Pet. for Recons. at 35-37).

   I disagree with Respondent's contention that the Complaint was amended. Complainant did address issues at the hearing and in post-hearing submissions that were not part of the Complaint. Further, at the hearing, Complainant expressed an intent to amend the Complaint in order to conform to the proof, but the Chief ALJ advised Complainant that such an amendment would not be allowed (Tr. 339-40). Complainant did not file a timely appeal of the Chief ALJ's ruling on Complainant's incipient motion to amend the Complaint, and the Complaint was never amended.

   Seventh, Respondent contends it was error for the Chief ALJ to deny admission into evidence of a letter from Robert A. Willems, DVM, to Dr. Mike Staton, dated April 13, 1993 (Pet. for Recons. at 37-38).

   The Administrative Procedure Act provides, as follows:

   § 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision

   . . . .

   (d) . . . Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.

   5 U.S.C. § 556(d).

   Section 1.141(h)(1)(iv) of the Rules of Practice provides, as follows:

   § 1.141 Procedure for hearing.

   . . . .

   (h) Evidence. (1) In general.

   . . . .

   (iv) Evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely, shall be excluded insofar as practicable.

   7 C.F.R. § 1.141(h)(1)(iv).

   I have reviewed the letter from Dr. Robert A. Willems, dated April 13, 1993 (Pet. for Recons., App. VI) and find that it concerns an incident that occurred more than 1 year prior to the date of the violations alleged in the Complaint and was written more than 1 year prior to the date of the violations alleged in the Complaint. I agree with the Chief ALJ's determination that the letter is irrelevant (Tr. 445-46) and should be excluded.

    *10 Eighth, Respondent contends that his expertise with respect to handling animals is relevant to the issue of whether he violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)). I disagree with Respondent's contention that his expertise is relevant to the issue in this proceeding; viz., whether, on a particular occasion, Respondent violated the Regulations and Standards. Even if I found that Respondent is an experienced handler of exotic animals and generally uses good judgment with respect to the handling of exotic animals, those findings would not affect the outcome of this proceeding.

   For the foregoing reasons and the reasons set forth in the Decision and Order filed January 13, 1998, In re Peter A. Lang, supra, Respondent's Petition for Reconsideration is denied.

   Section 1.146(b) of the Rules of Practice (7 C.F.R. § 1.146(b)) provides that the decision of the Judicial Officer shall automatically be stayed pending the determination to grant or deny a timely filed petition for reconsideration. [FN16] Respondent's Petition for Reconsideration was timely filed and automatically stayed the Decision and Order filed on January 13, 1998. Therefore, since Respondent's Petition for Reconsideration is denied, I hereby lift the automatic stay and the Order in the Decision and Order filed January 13, 1998, is reinstated, with allowance for time passed.

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

Order

   1. Respondent, Peter A. Lang, doing business as Safari West, is assessed a civil penalty of $1,500. The penalty shall be paid by certified check or money order, made payable to the "Treasurer of the United States," and forwarded to:

   Colleen A. Carroll

   United States Department of Agriculture

   Office of the General Counsel

   Room 2014 South Building

   1400 Independence Avenue, SW

   Washington, DC 20250-1417

   Respondent's payment of the civil penalty shall be forwarded to, and received by, Ms. Carroll within 65 days after service of this Order on Respondent. The certified check or money order should indicate that payment is in reference to AWA Docket No. 96-0002.

   2. Respondent, Peter A. Lang, doing business as Safari West, his agents and employees, successors and assigns, directly or indirectly through any corporate or other device shall cease and desist from violating the Animal Welfare Act and the Regulations and Standards, and, in particular, shall cease and desist from failing to handle animals as expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort.

   The cease and desist 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); 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 See United States v. Rosenwasser, 323 U.S. 360, 363 (1945) (the use of the words each and any to modify employee which, in turn, is defined to include any employed individual, discloses congressional intention to include all employees within the scope of the Fair Labor Standards Act, unless specifically excluded); Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 115 (3d Cir. 1992) (the word any is generally used in the sense of all or every and its meaning is most comprehensive), cert. denied sub nom. Doughboy Recreational, Inc. v. Fleck, 507 U.S. 1005 (1993); Kalmbach, Inc. v. Insurance Company of the State of Pennsylvania, Inc., 529 F.2d 552, 556 (9th Cir. 1976) (the common understanding of the word any is that it means all or every; generally, though not necessarily, the word any serves to enlarge the noun it modifies); FDIC v. Winton, 131 F.2d 780, 782 (6th Cir. 1942) (the word any modifying the word deposits in a provision of the Federal Reserve Act means one indiscriminately of whatever kind or quantity); Kuhlman v. W. & A. Fletcher Co., 20 F.2d 465, 468 (3d Cir. 1927) (an Act giving any seaman authority to sue, applies to every seaman); Kmart Corp. v. Key Industries, Inc., 877 F. Supp. 1048, 1051 (E.D. Mich. 1994) (the word any in a provision of the Michigan long-arm statute includes each and every); In re Far West Meats, 55 Agric. Dec. 1033, 1036- 37 (1996) (Ruling on Certified Questions) (generally, the word any is broadly inclusive; as commonly used the word all does not permit an exception or exclusion not specified; and the context in which the words all and any are used in 7 C.F.R. § 1.143(a) and (b)(1), respectively, provides no basis for reading the words all and any narrowly); In re Billy Gray, 52 Agric. Dec. 1044, 1090 (1993) (the word any is a broad and comprehensive term), aff'd, 39 F.3d 670 (6th Cir. 1994); In re Beef Nebraska, Inc., 44 Agric. Dec. 2786, 2830 (1985) (the word any is a broad and comprehensive term), aff'd, 807 F.2d 712 (8th Cir. 1986); In re Ben Gatz Co., 38 Agric. Dec. 1038, 1043 (1979) (the word any is a broad and comprehensive term); In re Mountainside Butter & Egg Co., 38 Agric. Dec. 789, 792 (1978) (Remand Order) (the word any is a broad and comprehensive term, and there is no basis for engrafting an exception not stated), final decision, 39 Agric. Dec. 862 (1980), aff'd, No. 80-3898 (D.N.J. June 23, 1982), aff'd mem., 722 F.2d 733 (3d Cir. 1983), cert. denied, 465 U.S. 1066 (1984).

FN3 See Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 610-11 (1944) (stating that all means all, not substantially all); William v. United States, 289 U.S. 553, 572 (1933) (describing the word all as a comprehensive word); McLean v. United States, 226 U.S. 374, 383 (1912) (stating that all excludes the idea of limitation); National Steel & Shipbuilding Co. v. United States, 419 F.2d 863, 875 (Ct. Cl. 1969) (stating that all means the whole of that which it defines, not less than its entirety and that the purpose of the word all is to underscore that intended breadth is not to be narrowed); Texaco, Inc. v. Pigott, 235 F. Supp. 458, 464 (S.D. Miss. 1964) (stating that all means the whole, the sum of all the parts, the aggregate and that all is about the most comprehensive and all inclusive word in the English language), aff'd per curiam, 358 F.2d 723 (5th Cir. 1966); Travelers Ins. Co. v. Cimarron Ins. Co., 196 F. Supp. 681, 684 (D. Or. 1961) (stating that the word all when referring to the amount, quantity, extent, duration, quality, or degree means the whole of and that a statute which says all excludes nothing); Fischer & Porter Co. v. Brooks Rotameter Co., 86 F. Supp. 502, 503 (E.D. Pa. 1949) (stating that the word any implies totality as plainly as does the word all and the only difference is that any arrives at totality by a series of choices for consideration, whereas all arrives at totality in a single leap); In re Central of Georgia Ry., 58 F. Supp. 807, 813 (S.D. Ga. 1945) (stating that a more comprehensive and all-inclusive word than all can hardly be found in the English language, there is a totality about the word all that few words possess), rev'd on other grounds and remanded sub nom. Liberty National Bank & Trust Co. v. Bankers Trust, 150 F.2d 453 (5th Cir. 1945); United States v. Bachman, 246 F. 1009, 1011 (E.D. Pa. 1917) (stating that the word intended to embrace every member of a class, where the number of the members of the class exceeds two, is the word all); Beckwith v. Chicago, M. & St. P. Ry., 223 F. 858, 860 (W.D. Wash. 1915) (stating that the word all is very comprehensive in its meaning); The Koenigin Luise, 184 F. 170, 173 (D.N.J. 1910) (describing the word all as an inclusive term); In re Cal-Almond, Inc., 56 Agric. Dec. 1158, 1168 (1997) (stating that as commonly used, the word all does not permit an exception or exclusion not specified); In re Lindsay Foods, Inc., 56 Agric. Dec. 1643, 1652 (1997) (Remand Order) (stating that, as commonly used, the word all does not permit an exception or exclusion not specified, and that there is no basis for reading the word all as used in 7 C.F.R. § 1.143(b)(2) narrowly); In re Far West Meats, 55 Agric. Dec. 1045, 1050 (1996) (Clarification of Ruling on Certified Questions) (stating that, as commonly used, the word all does not permit an exception or exclusion not specified, and that there is no basis for reading the word all as used in 7 C.F.R. § 1.143(a) narrowly); In re Far West Meats, 55 Agric. Dec. 1033, 1037 (1996) (Ruling on Certified Questions) (stating that, as commonly used, the word all does not permit an exception or exclusion not specified, and that there is no basis for reading the word all as used in 7 C.F.R. § 1.143(a) narrowly); In re Weissglass Gold Seal Dairy Corp., 32 Agric. Dec. 1004, 1041 (1973) (stating that: the word all means as much as possible, every individual component, every, and any whatever; the word all signifies the whole of; a more comprehensive word than all cannot be found in the English language; a more comprehensive and all-inclusive word than all can hardly be found in the English language), aff'd, 369 F. Supp. 632 (S.D.N.Y. 1973).

FN4 See 5 U.S.C. § 557(c).

FN5 See generally, In re Field Market Produce, Inc., 55 Agric. Dec. 1418, 1435 (1996) (stating that "[p]etitions for reconsideration under the Rules of Practice relate to reconsideration of the Judicial Officer's decision"); In re Lincoln Meat Co., 48 Agric. Dec. 937, 938 (1989) (stating that "[t]he Rules of Practice do not provide for a Motion for Reconsideration to the Administrative Law Judge").

FN6 I cannot conceive of a circumstance in a proceeding instituted under the Rules of Practice in which I would grant a petition to reconsider an initial decision and order once there has been a final decision and order issued by the Judicial Officer because reconsideration of an initial decision and order, which cannot become effective, would not serve any purpose relevant to the proceeding.

FN7 The new evidence that Respondent attaches to his Petition for Reconsideration consists of nine documents, as follows: (1) a facsimile transmittal from Jim Ashby to Nancy Lang dated February 20, 1998, concerning hourly temperatures (Pet. for Recons. at 12A); (2) a facsimile transmittal from Jim Ashby to Judy dated February 24, 1998, concerning hourly temperatures (Pet. for Recons. at 12B); (3) Table 1. Effective temperatures at various speeds and ambient temperatures (Pet. for Recons. at 15A); (4) a passage allegedly copied from "Bothma (Ed.) 1989. Game Ranch Management. J.L. van Schaik (Pty) Ltd. Pretoria, South Africa" (Pet. for Recons. at 23 n.60, 23A); (5) Declaration of Peter A. Lang, dated March 11, 1998 (Pet. for Recons., App. I); (6) Declaration of Glenn Benjamin, DVM, dated March 7, 1998 (Pet. for Recons., App. III); (7) letter dated April 7, 1995, from Alan R. Christian to Peter A. Lang (Pet. for Recons., App. IV); (8) United States Department of Agriculture, Animal and Plant Health Inspection Service, Civil Penalty Stipulation Agreement (Pet. for Recons., App. IV); and (9) Declaration of Warren Thomas, DVM, dated March 9, 1998 (Pet. for Recons., App. V).

FN8 See note 7.

FN9 One of the statutes listed in 7 C.F.R. § 1.131 is the Animal Welfare Act.

FN10 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).

FN11 NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 350-51 (1938); Rapp v. United States Dep't of Treasury, 52 F.3d 1510, 1519-20 (10th Cir. 1995); Aloha Airlines, Inc. v. CAB, 598 F.2d 250, 261-62 (D.C. Cir. 1979); Savina Home Industries, Inc. v. Secretary of Labor, 594 F.2d 1358, 1365 (10th Cir. 1979); NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1161 (5th Cir. 1977); Intercontinental Industries, Inc. v. American Stock Exchange, 452 F.2d 935, 941 (5th Cir. 1971), cert. denied, 409 U.S. 842 (1972); L.G. Balfour Co. v. FTC, 442 F.2d 1, 19 (7th Cir. 1971); Bruhn's Freezer Meats 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 Publishers 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); 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 Tammi Longhi, 56 Agric. Dec. 1373, 1387-89 (1997), appeal docketed, No. 97-3897 (6th Cir. Aug. 12, 1997); In re Fred Hodgins, 56 Agric. Dec. 1242, 1323 (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 200 n.9 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 132 (1996); In re James Joseph Hickey, Jr., 53 Agric. Dec. 1087, 1097- 98 (1994); In re James Petersen, 53 Agric. Dec. 80, 92 (1994); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1066 (1992), 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 SSG Boswell, II, 49 Agric. Dec. 210, 212 (1990); In re Floyd Stanley White, 47 Agric. Dec. 229, 264-65 (1988), aff'd per curiam, 865 F.2d 262, 1988 WL 133292 (6th Cir. 1988); In re Dr. John H. Collins, 46 Agric. Dec. 217, 233-32 (1987); In re H & J Brokerage, 45 Agric. Dec. 1154, 1197- 98 (1986); In re Dane O. Petty, 43 Agric. Dec. 1406, 1434 (1984), aff'd, No. 3-84-2200-R (N.D. Tex. June 5, 1986); In re Sterling Colorado 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 A.S. Holcomb, 35 Agric. Dec. 1165, 1173-74 (1976).

FN12 The Judicial Officer did give consideration to ability to pay when determining the amount of the civil penalty to assess under the Animal Welfare Act in In re Gus White III, 49 Agric. Dec. 123, 152 (1990). The Judicial Officer subsequently held that consideration of ability to pay in Gus White III 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. See In re James J. Everhart, 56 Agric. Dec. 1401, 1416 (1997) (stating that respondent's inability to pay the civil penalty is not a consideration in determining civil penalties assessed under the Animal Welfare Act); 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 James J. Everhart, 56 Agric. Dec. 1400, 1417 (1997) (stating that respondent's disability is not a mitigating factor with respect to the amount of the civil penalty to be assessed); In re Dora Hampton, 56 Agric. Dec. 301, 319-20 (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. 166, 258 (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 with respect to the sanction to be imposed), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997).

FN14 See In re Delta Air Lines, Inc., 53 Agric. Dec. 1076, 1084 (1994) (describing respondent's violations of the Animal Welfare Act and the Regulations and Standards as "serious" rather than "willful" and stating that there is no need to determine whether respondent's violations of the Animal Welfare Act and the Regulations and Standards were willful since no license is being suspended or revoked). Cf. In re JSG Trading Corp., 57 Agric. Dec. ___, slip op. at 71-73 (Mar. 2, 1998) (stating that it is not necessary to prove that respondents' violations of the Perishable Agricultural Commodities Act, 1930, as amended [hereinafter the PACA], were willful in order to prove that respondents violated the PACA).

FN15 The proponent of an Order has the burden of proof in proceedings conducted under the Administrative Procedure Act (5 U.S.C. § 556(d)), and the standard of proof by which the burden of persuasion is met is the preponderance of the evidence standard. Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981). The standard of proof in administrative proceedings conducted under the Animal Welfare Act is preponderance of the evidence. In re C.C. Baird, 57 Agric. Dec. ___, slip op. at 27 (Mar. 20, 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1455 n.7 (1997); In re Fred Hodgins, 56 Agric. Dec. 1242, 1246 n.*** (1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 461 (1997), appeal docketed, No. 97-3414 (3d Cir. Aug. 4, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 169 n.4 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 109 n.3 (1996); In re Julian J. Toney, 54 Agric. Dec. 923, 971 (1995), aff'd in part, rev'd in part, and remanded, 101 F.3d 1236 (8th Cir. 1996); In re Otto Berosini, 54 Agric. Dec. 886, 912 (1995); In re Micheal McCall, 52 Agric. Dec. 986, 1010 (1993); In re Ronnie Faircloth, 52 Agric. Dec. 171, 175 (1993), appeal dismissed, 16 F.3d 409, 1994 WL 32793 (4th Cir. 1994), printed in 53 Agric. Dec. 78 (1994); In re Craig Lesser, 52 Agric. Dec. 155, 166 (1993), aff'd, 34 F.3d 1301 (7th Cir. 1994); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1066-67 (1992), 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 Terry Lee Harrison, 51 Agric. Dec. 234, 238 (1992); In re Gus White, III, 49 Agric. Dec. 123, 153 (1990); In re E. Lee Cox, 49 Agric. Dec. 115, 121 (1990), aff'd, 925 F.2d 1102 (8th Cir.), reprinted in 50 Agric. Dec. 14 (1991), cert. denied, 502 U.S. 860 (1991); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1283-84 (1988); In re David Sabo, 47 Agric. Dec. 549, 553 (1988); In re Gentle Jungle, Inc., 45 Agric. Dec. 135, 146-47 (1986); In re JoEtta L. Anesi, 44 Agric. Dec. 1840, 1848 n.2 (1985), appeal dismissed, 786 F.2d 1168 (8th Cir.) (Table), cert. denied, 476 U.S. 1108 (1986).

FN16 In re Jerry Goetz, 57 Agric. Dec. ___, slip op. at 23 (Apr. 3, 1998) (Order Denying Respondent's Pet. for Recons. and Denying in Part and Granting in Part Complainant's Pet. for Recons.); In re Allred's Produce, 57 Agric. Dec. ___, slip op. at 4-5 (Feb. 2, 1998) (Order Denying Pet. for Recons.); In re Michael Norinsberg, 57 Agric. Dec. ___, slip op. at 10 (Jan. 26, 1998) (Order Denying Pet. for Recons.); In re Tolar Farms, 57 Agric. Dec. ___, slip op. at 20 (Jan. 5, 1998) (Order Denying Pet. for Recons.); In re Samuel Zimmerman, 56 Agric. Dec. 1458, 1467 (1997) (Order Denying Pet. for Recons.); In re Kanowitz Fruit & Produce, Co., 56 Agric. Dec. 942, 957 (1997) (Order Denying Pet. for Recons.); In re Volpe Vito, Inc., 56 Agric. Dec. 269, 275 (1997) (Order Denying Pet. for Recons.); In re City of Orange, 56 Agric. Dec. 370, 371 (1997) (Order Granting Request to Withdraw Pet. for Recons.); In re Five Star Food Distributors, Inc., 56 Agric. Dec. 898, 901 (1997) (Order Denying Pet. for Recons.); In re Havana Potatoes of New York Corp., 56 Agric. Dec. 1017, 1028 (1997) (Order Denying Pet. for Recons.); In re Saulsbury Enterprises, 56 Agric. Dec. 82, 101 (1997) (Order Denying Pet. for Recons.); In re Andershock Fruitland, Inc., 55 Agric. Dec. 1234 (1996) (Order Denying Pet. for Recons.).

 

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