ANIMAL WELFARE ACT COURT DECISION PETER A. LANG; NANCY ANNE LANG, dba SAFARI WEST v. UNITED STATES DEPARTMENT OF AGRICULTURE. No. 98-70807. Filed July 16, 1999. (Cite as 189 F.3d 473 (9th Cir.))(Table) Animal Welfare Act - Handling animals – Substantial evidence – Due process - Amended complaint. The United States Court of Appeals for the Ninth Circuit denied petitioners' petition for review of the Judicial Officer's finding that Peter A. Lang violated 9 C.F.R. § 2.131(a). The Court held that the Judicial Officer's decision was supported by substantial evidence and that the petitioners' contention that the Judicial Officer's decision was arbitrary and capricious lacks merit. The Court rejected petitioners' contention that Lang's due process rights were violated when the government sought to amend its complaint against him and add additional violations. The Court stated that this contention lacks merit because the ALJ explicitly denied the request to amend the complaint and the Judicial Officer did not consider any evidence not relevant to the allegations in the complaint. UNITED STATES COURT OF APPEALS MEMORANDUM' On Petition for Review of an Order of the Judicial Officer Submitted July 12, 19992 Before: FARRIS, HAWKINS, and GRABER, Circuit Judges. 'This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3. 'The Langs' request for oral argument is denied. The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 58 Agric. Dec. 742 Peter A. Lang and Nancy A. Lang, doing business as Safari West, petition pro se for review of the order of the Judicial Officer ("JO”) dismissing their appeal from the administrative law judge's (“ALJ") assessment of a civil penalty and issuance of an order to cease and desist from handling animals in violation of the Animal Welfare Act, 7 U.S.C. §§ 2131-2159.3 We have jurisdiction under 7 U.S.C. § 2149(c), and we deny the petition. Our review of administrative decisions is narrow, and administrative agency decisions will be upheld unless they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See Farley & Calfee, Inc. v. Department of Agric., 941 F.2d 964, 966 (9th Cir. 1991). The JO's findings must be upheld if they are supported by substantial evidence. See Spencer Livestock Comm'n Co. v. Department of Agric., 841 F.2d 1451, 1454 (9th Cir. 1988). Lang contends that the JO's decision was arbitrary and capricious and his findings were not supported by substantial evidence. This contention lacks merit. Substantial evidence supports the JO's finding that Lang failed to handle an animal in his care as "expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort." See 9 C.F.R. § 2.131(a)(1). Lang contends that his due process rights were violated because the government sought to amend its complaint against him and add additional violations. This contention lacks merit because the ALJ explicitly denied the request to amend the complaint and the JO did not consider any evidence not relevant to the allegations in the complaint concerning the handling of the lechwes. PETITION FOR REVIEW DENIED. 'The Langs also appeal the ALJ's original decision. The ALJ's decision, however, is not a final appealable order. See 28 U.S.C. § 2342(2). ANIMAL WELFARE ACT DEPARTMENTAL DECISIONS In re: NANCY M. KUTZ AND STEVEN M. KUTZ. AWA Docket No. 99-0001. Decision and Order as to Nancy M. Kutz filed July 12, 1999. Default Failure to file timely answer - Failure to respond to complaint Dealer Operating without license — Ability to pay — Cease and desist order — Civil penalty — License suspension — License disqualification. The Judicial Officer affirmed the Default Decision by Administrative Law Judge James W. Hunt assessing a civil penalty of $16,000 against Respondent, suspending Respondent's Animal Welfare Act (Act) license, and directing Respondent to cease and desist from violating the Act and the Regulations and Standards issued under the Act. Respondent's failure to file a timely answer is deemed an admission of the allegations in the complaint (7 C.F.R. § 1.136(c)) and constitutes a waiver of hearing (7 C.F.R. § 1.139). Accordingly, the Default Decision was properly issued. The Judicial Officer stated that even if Respondent's late-filed answer had been timely filed, it would be deemed an admission of the allegations of the complaint because Respondent's answer did not respond to the allegations in the complaint. The Judicial Officer also concluded that Respondent's ability to pay the civil penalty is not a basis for setting aside or reducing the civil penalty assessed by the ALJ. Robert A. Ertman, for Complainant. Respondent, Pro se. Initial decision issued by James W. Hunt, Administrative Law Judge. The Administrator, 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 October 15, 1998. The Complaint alleges that Nancy M. Kutz and Steven M. Kutz [hereinafter Respondents] operated as a dealer, as defined in the Animal Welfare Act and the Regulations without obtaining an Animal Welfare Act 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). 58 Agric. Dec. 744 The Hearing Clerk served Respondents with a copy of the Complaint, a copy of the Rules of Practice, and a service letter on October 22, 1998.' Respondents failed to answer the Complaint within 20 days after service, as required by section 1.136(a) of the Rules of Practice (7 C.F.R. § 1.136(a)). On November 19, 1998, Respondent Nancy M. Kutz filed a late Answer, which does not respond to the allegations of the Complaint, as required by section 1.136(b) of the Rules of Practice (7 C.F.R. § 1.136(b)). On March 2, 1999, in accordance with section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), Complainant filed Motion for Adoption of Proposed Decision and Order [hereinafter Motion for Default Decision] and a Proposed Decision and Order Upon Admission of Facts by Reason of Default [hereinafter Proposed Default Decision]. The Hearing Clerk served a copy of Complainant's Motion for Default Decision, a copy of Complainant's Proposed Default Decision, and a service letter on Respondent Nancy M. Kutz on March 11, 1999,2 and on Respondent Steven M. Kutz on April 23, 1999.3 Respondents did not file objections to Complainant's Motion for Default Decision or Complainant's Proposed Default Decision within 20 days after service, as required by section 1.139 of the Rules of Practice (7 C.F.R. § 1.139). On May 19, 1999, Administrative Law Judge James W. Hunt [hereinafter the ALJ] issued a Decision and Order Upon Admission of Facts by Reason of Default [hereinafter Initial Decision and Order]: (1) concluding that Respondents operated as a dealer, as defined in the Animal Welfare Act and the Regulations without obtaining an Animal Welfare Act 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); (2) directing that Respondents 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) assessing Respondents a $16,000 civil penalty; and (4) suspending Respondents' Animal Welfare Act license for 90 days. On June 1, 1999, Respondent Nancy M. Kutz appealed to the Judicial Officer; on June 21, 1999, Complainant filed Memorandum in Opposition to Appeal; and 'See Domestic Return Receipt for Article Number P 368 427 000 and Domestic Return Receipt for Article Number P 368 427 0001 [sic]. 'See Domestic Return Receipt for Article Number P 368 427 112. 'See memorandum of "TMFisher" dated April 23, 1999. on June 23, 1999, the Hearing Clerk transferred the record of the proceeding to the Judicial Officer for decision as to Respondent Nancy M. Kutz.* Based upon a careful consideration of the record and pursuant to section 1.145(i) of the Rules of Practice (7 C.F.R. § 1.145(i)), I adopt the ALJ's Initial Decision and Order as the final Decision and Order as to Nancy M. Kutz. Additional conclusions by the Judicial Officer follow the ALJ's Conclusions, as restated. APPLICABLE STATUTORY PROVISIONS AND REGULATIONS 7 U.S.C.: TITLE 7-AGRICULTURE CHAPTER 54-TRANSPORTATION, SALE, AND HANDLING § 2131. Congressional statement of policy The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce, in order (1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment; (2) to assure the humane treatment of animals during transportation in commerce; and *The Hearing Clerk served the Initial Decision and Order on Respondent Steven M. Kutz on June 3, 1999. (See memorandum of "TMFisher" dated June 3, 1999.) Respondent Steven M. Kutz did not appeal the Initial Decision and Order, and in accordance with section 1.142(c)(4) of the Rules of Practice (7 C.F.R. § 1.142(c)(4)), the Initial Decision and Order became effective as to Respondent Steven M. Kutz on July 8, 1999. |