from sellers; and that Respondent has an excellent animal husbandry program. I disagree with Respondent that the record supports that at all times Respondent's actions were in good faith; that Respondent was the victim of deception by Respondent's sellers; that Respondent acted immediately to rectify procedures to stop seller deception; that Respondent did not rely on sellers to the point of delegating Respondent's.regulatory duties; that Respondent is without the necessary resources to authenticate the seller's representations; that Respondent has a history of good faith dealings with USDA; and that Respondent never falsified its records. Moreover, unlike the ALJ, I found that Respondent's violations were willful, and I found that Respondent committed at least 67 violations of the random source regulation (9 C.F.R. § 2.132). As a final matter, Respondent, by letter filed May 1, 1997, requests that Respondent be permitted to retain the civil penalty for "better care for the animals." I am aware of no provision in the Animal Welfare Act, the Rules of Practice, or the Regulations and Standards for a respondent's retention of a civil penalty for such purposes, and Respondent cites no authority for his request. Respondent's request to retain the civil penalty for animal care purposes is denied. For the foregoing reasons, the following Order should be issued. VI. ORDER. 1. Respondent, 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 issued under the Animal Welfare Act and, in particular, shall cease and desist from: A. Failing to make, keep, and maintain records which fully disclose all required information; B. Acquiring random source dogs from unauthorized sources; and C. Failing to make provision for the regular and frequent collection, removal, and disposal of water in a manner that minimizes contamination and disease risks. The cease and desist provisions of this Order shall become effective on the day after service of this Order on Respondent. 2. Respondent is assessed a civil penalty of $9,250. The civil penalty shall be paid by certified check or money order, made payable to the "Treasurer of the United States," and sent to: Robert A. Ertman, Esq., United States Department of Agriculture, Office of the General Counsel, Room 2014-South Building, 1400 Independence Avenue, S. W., Washington, D.C. 20250-1417. Respondent's payment of the civil penalty shall be forwarded to, and received by, Mr. Ertman 57 Agric. Dec. 185 within 90 days after service of this Order on Respondent. Respondent shall indicate on the certified check or money order that payment is in reference to AWA Docket No. 95-0017. 3. Respondent's Animal Welfare Act license is suspended for 14 days and continuing thereafter until Respondent demonstrates to the Animal and Plant Health Inspection Service that he is in full compliance with the Animal Welfare Act and the Regulations and Standards issued under the Animal Welfare Act, and this Order, including payment of the civil penalty assessed in this Order. When Respondent demonstrates to the Animal and Plant Health Inspection Service that he has satisfied the conditions in this paragraph of this Order, a Supplemental Order will be issued in this proceeding upon the motion of the Animal and Plant Health Inspection Service, terminating the suspension of Respondent's Animal Welfare Act license after the expiration of the 14-day license suspension period. The Animal Welfare Act license suspension provisions in this Order shall become effective on the 90th day after service of this Order on Respondent. In re: STEVEN M. SAMEK AND TRINA JOANN SAMEK. Ruling Denying Motion to Appoint Public Defender as to Steven M. Samek filed May 12, 1998. The Judicial Officer ruled that, while the Administrative Procedure Act (5 U.S.C. § 555(b)) provides that a party may appear by or with counsel in agency proceedings, Respondent has no right under the Constitution of the United States, the Administrative Procedure Act, or the Rules of Practice (7 C.F.R. §§ 1.130-.151) to have counsel provided by the government in disciplinary administrative proceedings such as those conducted under the Animal Welfare Act. Colleen A. Carroll, for Complainant. Respondent, pro se. Default Decision issued by Victor W. Palmer, Chief Administrative Law Judge. 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 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 18, 1996. The Complaint alleges that Steven M. Samek and Trina JoAnn Samek violated the Animal Welfare Act and the Regulations and Standards.' Mr. Kent A. Permentier, Senior Investigator with the Animal and Plant Health Inspection Service, personally served a copy of the Complaint on Steven M. Samek [hereinafter Respondent] on February 21, 1997 (United States Department of Agriculture, Certificate of Personal Service of Kent A. Permentier, filed June 25, 1997). Respondent failed to answer the Complaint within 20 days as required by section 1.136 of the Rules of Practice (7 C.F.R. § 1.136). On August 22, 1997, in accordance with section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), the Chief ALJ issued a Proposed Decision and Order Upon Admission of Facts by Reason of Default as to Steven M. Samek [hereinafter Default Decision] in which the Chief ALJ found that Respondent violated the Animal Welfare Act and the Regulations and Standards as alleged in the Complaint; assessed a civil penalty of $15,000 against Respondent; suspended Respondent's Animal Welfare Act license for 30 days; and ordered Respondent to cease and desist from violating the Animal Welfare Act and the Regulations and Standards. On April 6, 1998, Respondent was served with the Default Decision, and on April 10, 1998, Respondent filed a motion requesting appointment of a public defender to appeal the Default Decision [hereinafter Respondent's Motion]. Respondent's Motion reads in its entirety, as follows: To the Honorable Judge Victor W. Palmer Upon receipt of the decision of my case[,] I respectfully request to have a public defender appointed to me to appeal this decision[.] I am [i]ncarcerated an [sic] unable to afford legal representation[.] 'On March 26, 1998, Complainant filed a motion to dismiss the Complaint as to Trina JoAnn Samek (Motion to Dismiss Without Prejudice as to Trina JoAnn Samek), which Chief Administrative Law Judge Victor W. Palmer [hereinafter Chief ALJ] granted on March 31, 1998 (Dismissal of Complaint Against Trina JoAnn Samek). 57 Agric. Dec. 185 On May 4, 1998, Complainant filed Complainant's Response to Appeal of Decision and Order [hereinafter Complainant's Response], and on May 6, 1998, the Hearing Clerk transmitted the record of the proceeding to the Judicial Officer for a ruling on Respondent's Motion. Before ruling on Respondent's Motion, there are two general matters which must be addressed. First, Respondent improperly addressed Respondent's Motion to the Chief ALJ. Section 1.143(a) of the Rules of Practice provides that motions relating to an appeal shall be ruled on by the Judicial Officer, 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 the filing of 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. 7 C.F.R. § 1.143(a). Respondent's Motion, which requests appointment of a public defender "to appeal" the Default Decision, directly relates to the appeal and should properly be submitted to the Judicial Officer for a ruling. Second, Complainant responds to Respondent's Motion as if it is an appeal of the Default Decision (Complainant's Response). However, Respondent's April 10, 1998, filing does not indicate that Respondent disagrees with the Default Decision, any part of the Default Decision, or any ruling by the Chief ALJ. Further, Respondent's April 10, 1998, filing does not allege any deprivation of Respondent's rights. Section 1.145(a) of the Rules of Practice describes the purpose and contents of an appeal petition, as follows: § 1.145 Appeal to Judicial Officer. (a) Filing of petition. Within 30 days after receiving service of the Judge's decision, a party who disagrees with the decision, or any part thereof, or any ruling by the Judge or any alleged deprivation of rights, may appeal such decision to the Judicial Officer by filing an appeal petition with the Hearing Clerk. As provided in § 1.141(h)(2), objections regarding evidence or a limitation regarding examination or cross-examination or other ruling made before the Judge may be relied upon in an appeal. Each issue set forth in the petition, and the arguments thereon, shall be separately numbered; shall be plainly and concisely stated; and shall contain detailed citations of the record, statutes, regulations or authorities being relied upon in support thereof. A brief may be filed in support of the appeal simultaneously with the petition. 7 C.F.R. § 1.145(a). I do not find that Respondent's April 10, 1998, filing is an appeal of the Default Decision, but rather is a request for the appointment of a public defender to represent Respondent for the purposes of a contemplated appeal of the Default Decision. The Administrative Procedure Act provides that a party in an agency proceeding may appear by or with counsel, as follows: § 555. Ancillary matters (b) ... A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding. 5 U.S.C. § 555(b). However, a respondent who is unable to afford an attorney has no right under the Constitution of the United States, the Administrative Procedure Act, or the Rules of Practice to have counsel provided by the government in disciplinary administrative proceedings such as those conducted under the Animal Welfare Act. Therefore, Respondent's Motion is denied. 'See generally Elliott v. SEC, 36 F.3d 86, 88 (11th Cir. 1994) (per curiam) (rejecting petitioner's assertion of prejudice due to his lack of representation in an administrative proceeding before the Securities and Exchange Commission and stating that there is no statutory or constitutional right to counsel in disciplinary administrative proceedings before the Securities and Exchange Commission); Henry v. INS, 8 F.3d 426, 440 (7th Cir. 1993) (stating that it is well settled that deportation hearings are in the nature of civil proceedings and that aliens therefore have no constitutional right to counsel under the Sixth Amendment); Michelson v. INS, 897 F.2d 465, 467 (10th Cir. 1990) (stating that a deportation proceeding is civil in nature; thus no Sixth Amendment right to counsel exists); Lozada v. INS, 857 F.2d 10, 13 (1st (continued...) |