Petitioners' Appeal Petition] that they are entitled to a refund of assessments paid as follows:

Petitioners agree entirely with the decision reached by Chief Administrative Law Judge Palmer that the [Almond] Board's promotion and advertising program from 1986-87 through the 1994-95 crop years were unconstitutional and therefore not in accordance with law. However, Petitioners appeal this decision for the sole reason that the decision does not order a refund of assessments, and never addressed the issue of a refund....

Petitioners herein allege that they are entitled to the following relief, based upon Chief Administrative Law Judge Palmer's decision:

A.

An order that Petitioners are entitled to a refund from USDA of all their creditable advertising assessments and credit-back advertising assessments imposed by USDA for the crop years 1986-87 through the 1994-95 crop years;

B. An order ordering a refund from USDA of that portion of the administrative assessments used by the Almond Board for the Board's generic promotion and advertising program for the crop years 1986-87 through 1994-95 crop years;

C. That the refund of assessments listed in the two preceding paragraphs are required by the Ninth Circuit Court of Appeals' decisions in Cal-Almond, Inc., et al v. USDA, 14 F.3d 429 (9th Cir. 1993), and upon remand, Cal-Almond, Inc., et al v. USDA, District Court decision of September 19, 1994; and Wileman Bros. & Elliott, Inc., et al v. Espy, 95 Daily Journal D.A.R. 8411;

D.

In all other respects, [the] Chief Administrative Law Judge's decision should be affirmed.

As an initial matter, Petitioners' reliance on the Ninth Circuit decisions in CalAlmond and Wileman Bros. is misplaced; the Supreme Court of the United States

56 Agric. Dec. 1158

reversed the Ninth Circuit's decision in Wileman Bros. 29 and vacated the Ninth Circuit's decision in Cal-Almond.30 Further, the Supreme Court has remanded CalAlmond to the United States Court of Appeals for the Ninth Circuit for further consideration in light of the Supreme Court's decision in Wileman Bros. The Ninth Circuit, in turn, has remanded Cal-Almond "to the district court with instruction to dismiss Cal-Almond's First Amendment claim." (Respondent's Memorandum in Support of Motion for Immediate Decision, Attachment C.) Moreover, because I conclude in this Decision and Order that neither the AMAA nor the Almond Order violates Petitioners' rights guaranteed under the First Amendment of the Constitution of the United States, the issue of a refund of assessments is moot.

Respondent states that it "renews its motion to exclude the entire testimony of petitioner Monte Cristo." (Respondent's Proposed Findings of Fact and Conclusions of Law; Appeal of the ALJ's Findings of Fact and Conclusions of Law at 26). Petitioner Monte Cristo Packing Company did not testify during the hearing, and it is difficult to discern what "testimony" Respondent requests be excluded; therefore, Respondent's renewed motion is denied.31

III. Conclusions of Law

Neither the AMAA nor the Almond Order violates Petitioners' rights under the First Amendment to the Constitution of the United States.

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

IV. Order

The relief requested by Petitioners is denied and the Petitions are dismissed.

29 Glickman v. Wileman Bros. & Elliott, Inc., 117 S. Ct. 2130 (1997).

30 Department of Agric. v. Cal-Almond, Inc., 117 S. Ct. 2501 (1997).

"I do note that during the hearing the Chief ALJ denied Respondent's motion to exclude MC 1-22 (Tr. 2434-39). However, I do not speculate as to the nature of Respondent's renewed motion "to exclude the entire testimony of petitioner Monte Cristo." (Respondent's Proposed Findings of Fact and Conclusions of Law; Appeal of the ALJ's Findings of Fact and Conclusions of Law at 26.)

ANIMAL QUARANTINE and RELATED LAWS

In re: KENNETH WOLFE and CLARK LIVESTOCK AUCTION COMPANY, INC.

A.Q. Docket No. 95-0034.

Decision and Order filed July 15, 1997.

Failure to appear at hearing - Movement interstate of test-eligible cattle out of a class A state without a valid certificate - Civil penalty.

Respondent failed to appear at the hearing, after being duly notified of the time and place, without showing good cause. Such failure to appear constituted a waiver of the right to an oral hearing and an admission of the facts presented at the hearing. Accordingly, Administrative Law Judge Edwin S. Bernstein found that on or about August 17, 1994, Respondents moved interstate from Latexo, Texas to Bossier City, Louisiana, four test-eligible cattle without being accompanied by a certificate as required. Judge Bernstein imposed a civil penalty of $1,000 against each Respondent. In determining the appropriate penalty, Judge Bernstein considered the national importance of the brucellosis eradication program, the detrimental effect of Respondents' actions on the brucellosis eradication program, and Respondents' prior history of noncompliance with the brucellosis regulations.

Sheila H. Novak, for Complainant.

Respondents, Pro se.

Decision and Order issued by Edwin S. Bernstein, Administrative Law Judge.

This is an administrative proceeding for the assessment of civil penalties against Respondents, Kenneth Wolfe and Clark Livestock Auction Company, Inc., for a violation of Section 2 of the Act of February 2, 1903, as amended (21 U.S.C. § 111), Sections 4 and 5 of the Act of May 29, 1884, as amended (21 U.S.C. § 120), and the regulations promulgated thereunder (9 C.F.R. § 78.1 et seq.), in accordance with the Rules of Practice applicable to this proceeding (9 C.F.R. § 70.1 et seq. and 7 C.F.R. § 1.130 et seq.). This proceeding was instituted by a Complaint filed on July 11, 1995, by the Acting Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture. Respondents, Kenneth Wolfe and Clark Livestock Auction Company, Inc., filed an Answer on July 28, 1995, denying all material allegations of the Complaint.

On January 28, 1997, an Order was issued scheduling a hearing to begin on June 19, 1997, in Shreveport, Louisiana and directing the parties to exchange witness lists and exhibits by specified dates. Pursuant to a Notice of Hearing dated March 26, 1997, the parties were notified that the hearing in this matter would commence on June 19, 1997, at 9 a.m., local time, at the U.S. Courthouse, Conference Room 2265 (2nd floor), 300 Fannin Street, Shreveport, Louisiana.

I presided over a hearing on June 19, 1997, beginning at 9:30 a.m., local time.

56 Agric. Dec. 1228

Complainant was represented by Sheila H. Novak, Office of the General Counsel, United States Department of Agriculture, Washington, D.C. Respondents, Kenneth Wolfe and Clark Livestock Auction Company, Inc., did not appear at the hearing.

Findings of Fact

1. Kenneth Wolfe is an individual with a mailing address of 3601 Benton Road, Bossier City, LA 71111.

2. Clark Livestock Auction Company, Inc. is a corporation with a mailing address of 3601 Benton Road, Bossier City, LA 71111.

3. On or about August 17, 1994, Respondents moved interstate approximately four test-eligible cattle from Latexo, Texas, a Class A state, to Bossier City, Louisiana, in violation of section 78.9 (b)(3)(ii) of the regulations (9 C.F.R. § 78.9 (b)(3)(ii)), because the cattle were not accompanied interstate by a valid certificate, as required.

21 U.S.C. § 122 provides:

Applicable Legal Provisions

Any person, company, or corporation knowingly violating the provisions of this Act or the order or regulations made in pursuance thereof shall be guilty of a misdemeanor, and on conviction shall be punished by a fine of not less than one hundred dollars nor more than five thousand dollars, or by imprisonment of not more than one year, or by both such fine and imprisonment. Any person, company, or corporation violating such provisions, orders, or regulations may be assessed a civil penalty by the Secretary of Agriculture of not more than one thousand dollars. The Secretary may issue an order assessing such civil penalty only after notice and an opportunity for an agency hearing on the record. Such order shall be treated as a final order reviewable under Chapter 158 of Title 28, United States Code [28 U.S.C. §§ 2341 et seq.]. The validity of such order may not be reviewed in an action to collect such civil penalty.

9 C.F.R. § 78.1 provides, in relevant part:

Certificate. An official document, issued by an APHIS representative, state representative, or accredited veterinarian at the point of origin of an interstate movement of animals.

(a) The certificate must show the official eartag number, individual animal register breed association registration tattoo, individual animal registered breed association registration number, or similar individual identification of each animal to be moved; the number of animals covered by the certificate; the purpose for which the animals are to be moved; the points of origin and destination; the consignor; and the consignee.

Moved. Shipped, transported, delivered, or received for movement, or otherwise aided, induced, or caused to be moved.

Test-eligible cattle and bison. For purposes of interstate movement, test-eligible cattle and bison are:

(a) Cattle and bison which are not official vaccinates and which have lost their first pair of temporary incisors (18 months of age or over), except steers and spayed heifers;

(b) Officials calfhood vaccinates 18 months of age or over which are parturient or postparturient;

(c) Official calfhood vaccinates of beef breeds or bison with the first pair of permanent incisors fully erupted (2 years of age or over); and

(d) Official calfhood vaccinates of dairy breeds with partial eruption of the first pair of permanent incisors (20 months of age or over).

9 C.F.R. § 78.9 provides, in relevant part:

...Test-eligible cattle which are not brucellosis exposed and are from herds not known to be affected may be moved interstate only in accordance with § 78.10 and as follows:

(b) Class A States/areas. Test-eligible cattle which originate in Class A States or areas, are not brucellosis exposed, and are from a herd not known to be affected may be moved interstate from Class A states or areas only as specified below: (3) Movement other than in accordance with paragraphs (b)(1) and (2) of this section. Such cattle may be moved interstate other than in accordance with paragraphs (b)(1) and (2) of this section only if:

(ii) Such cattle are negative to an official test within 30