State, other than to a quarantined feedlot or slaughtering establishment, must be tested for brucellosis thirty days prior to the movement and they must be accompanied interstate by a health certificate. A health certificate is used to document that the cattle moving interstate, from a Class A State to a place other than to a slaughter establishment or a quarantined feedlot, were tested for brucellosis thirty days prior to the movement. (Tr. 81, 83). The risk of cattle moving interstate without the health certificate involves the possibility of an infected animal going undetected, the inability to trace an infected animal back to its herd of origin, and the possible downgrading of a State's classification as Class Free, Class A, or otherwise. (Tr. 83, 84). Thus, such actions undermine the whole purpose of the program, namely, the eradication of the disease brucellosis. Respondent's acts of noncompliance facilitate the spread of brucellosis. The Complainant recommends that the Respondent be assessed a civil penalty of $500.00 per count, or $2,500.00. (Tr. 85). The Department's sanction policy is reviewed by the Judicial Officer in the case of In re: John Casey, et al., 54 Agric. Dec. 91 (1995) which follows the rationale set forth in In re: S.S. Farms Linn County, Inc., et al., 50 Agric Dec. 476,497 (1991), aff'd, 991 F.2d 803 (9th Cir. 1993) wherein it is stated, among other things, that, in determining sanction, each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose. In the present proceeding Dr. Eric Ebol, an employee of the United States Department of Agriculture, APHIS, Veterinary Services testified. He indicated, among other things, in his testimony the reasons why he was recommending a $500.00 per count sanction with respect to the Respondent: A Well, a Class A State has some level of infection. They have not achieved their class free status, therefore there is some risk of animals moving from a Class A state and having brucellosis. For the class free state that would receive such a movement, the potential for real problems is significant, simply because a class free state has gone to great lengths to achieve this status and the discovery of detection of infection in that state would automatically force them to go back to a Class A State. From the standpoint of a Class A state that cut [got] these cattle, lacking the proper certification and paperwork may make 55 Agric. Dec.767 the job of locating where that infection originated very difficult, and potentially would involve many other producers, innocent producers and require tests. (Tr. 84). In response to the question as to what would be an appropriate sanction in this case, Dr. Ebol testified that according to the Veterinary Services memorandum, a fine of $500.00per cow would be an appropriate penalty and that was the penalty which he was recommending. (Tr. 85). It is noted that the Complainant on brief has not based a penalty on the number of cows, but rather upon the number of counts set forth in the Complaint. The recommendation of Dr. Ebol is in accord with other cases and is warranted and appropriate herein. In re: Terry Horton et al., 50 Agric. Dec. 430, 463-64 (1991); In re: Grady, 45 Agric. Dec., 66, 109, (1986) and In re: Petty, 43 Agric. Dec. 1406, 1409-10 (1984), aff'd, No. 3-84-2200-R (N.D. Tex. June 5, 1986). For the foregoing reasons the following Order is issued. Order The Respondent, Hugh Tipton (Tip) Hennessey, is hereby assessed a civil penalty in the amount of Two Thousand Five Hundred Dollars ($2,500.00). The civil penalty shall be payable to the Treasurer of the United States, by a certified check or money order and shall be forwarded to: The United States Department of Agriculture Field Servicing Office, Accounting Section 100 North Sixth Street Minneapolis, Minnesota 55403 within thirty (30) days from the effective date of this Order. Respondent shall indicate on the check or money order that payment is made in reference to A.Q. Docket No. 95-7. All contentions, and motions of the parties have been carefully considered and, to the extent not ruled upon or not granted herein, they are denied. This Order shall be final and effective thirty-five (35) days after service of this Decision and Order upon Respondent, unless appealed to the Judicial Officer pursuant to section 1.145 of the Rules of Practice and Procedures applicable to the proceeding (7 C.F.R. §§ 1.130 et seq., 1.145). Copies hereof shall be served upon the parties. [This Decision and Order became final December 12, 1996.-Editor] 55 Agric. Dec. 775 ANIMAL WELFARE ACT COURT DECISION JULIAN TONEY and ANITA TONEY v. DAN GLICKMAN. No. 96-1317. Decided December 3, 1996. (Cite as: 101 F.3d 1236) Petition for review - Remand for redetermination of sanctions - Denial of request to reopen. The United States Court of Appeals for the Eighth Circuit affirmed most of Secretary's findings but found that the evidence did not support two of the allegations and, therefore, remanded the case for a redetermination of the sanction. It also affirmed the Judicial Officer's refusal the reopen the hearing. The Court found that the Toneys: falsely identified the sources of dogs; kept the dog; in unsafe and unsanitary conditions; forged health certificates; failed to keep animals for the required holding period; and altered records. However, it also found that the evidence did not support the findings that the Toneys falsely received dogs from two of the sources alleged. The case was remanded for the ALJ to determine a sanction based only on the substantiated violations. In addition the Court denied the Toneys' Request for Leave to Consider Additional Evidence. The Toneys sought to introduce inspection reports which stated that their records were in compliance with the regulation, as well additional evidence they acquired through the Freedom of Information Act. The request was denied because they failed to show good cause as to why the evidence was not introduced at the hearing. The evidence can be admitted on remand to the extent that it is relevant to sanctions. Before ARNOLD, Chief Judge and GIBSON and ROSS, Circuit Judges. UNITED STATES COURT OF APPEALS ARNOLD, Chief Judge. Julian and Anita Toney were in the business of selling animals to research facilities. The Administrative Law Judge (ALJ) found that they had committed hundreds of violations of the Animal Welfare Act, 7 U.S.C. §§ 2131 et seq. She then imposed what was, to that point, the harshest sanction in the history of the Act. The Judicial Officer affirmed the ALJ's findings and denied the Toneys' request to reopen the hearing for consideration of new evidence. While we affirm most of these findings, we hold that the evidence does not support all of them. Accordingly, we remand this matter to the Department for redetermination of the sanction. We also affirm the Judicial Officer's refusal to reopen the hearing and deny the Toneys' Request for Leave to Adduce Additional Evidence.' The Toneys are free, however, to seek leave to offer this additional evidence on remand to the extent it is relevant to the sanction. I. Background Animal dealing is a strictly regulated business. In 1966, Congress passed the Animal Welfare Act to deter animal stealing and to ensure the humane treatment of animals involved in the animal research trade. Among other things, the Act prohibits dealers from obtaining animals from certain sources, requires that they keep detailed records of animal they obtain, and mandated that they hold such animals for a certain period of time prior to selling them. The Act also requires dealers to provide safe and sanitary shelter for animals in their care. Julian Toney was a licensed animal dealer. Together with his wife Anita and his employee Cliff Waterburg, Mr. Toney obtained dogs from various sources and then sold them to animal research facilities. They had been in business since the mid-1980's without a formal complaint being lodged against them. In November of 1990, investigators from the Department of Agriculture (USDA) came to the Toneys' home and asked to look at their records. The Toneys kept their records in spiral notebooks, a practice which was not in itself violative of the Act. They also used USDA forms on an intermittent basis, but these forms were incomplete at the time of the first inspection. The Toneys' records were difficult to read and examine, and the Toneys later transposed the records onto USDA forms, and, at some point prior to the initiation of the first Complaint, supplied these records as well as the original notebook records to the USDA. As a result of its investigation, the Department issued the first of two complaints in September of 1992. A second investigation in early 1994 led to the filing of a second complaint, which was consolidated with the first. The Administrative Law Judge found that: (1) the Toneys kept records that falsely identified the source of many of the dogs they obtained and contained incorrect information about the sources; (2) they used forged certificates when selling at least 44 dogs to research facilities; (3) they failed to hold at least 190 animals for the five days required by the Act and then 'We have considered both the letter the Toneys sent to us after oral argument as well as the Government's response to it. |