2. Respondent violated 9 C.F.R. § 161.2(a) by completing and issuing an official health certificate covering animals which he had not personally inspected and thoroughly examined.

3. A suspension of Respondent's veterinary accreditation for six months is an appropriate sanction. Brucellosis is a bacterial disease of livestock, primarily a reproductive disease. It is normally spread from animal to animal [through] direct contact of an infected animal [or] tissues and fluids of an infected animal to a noninfected animal. This normally occurs in association with calving. The Department of Agriculture has an extensive program designed to minimize the impact of brucellosis. In order for that program to be effective, it is important that testing procedures be conducted accurately. (TR 8) Guidelines of the veterinary services of the Department of Agriculture recommend a minimum of 90-day suspension for this type of violation. (TR 34) However, in this case, Respondent had previously received a letter of warning and had received two separate accreditation suspensions of 60 days each for prior violations of the standards. (TR 25, 29, 147-149, CX 2) Upon consideration of the violations in question, the importance of encouraging compliance with the brucellosis testing program, and the prior letter of warning and suspensions, I find that a suspension of Dr. Purvis' veterinary accreditation for six months is appropriate.

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Respondent contends that the evidence does not adequately support the ALJ's findings of fact, but there is more than a preponderance of the evidence, which is all that is required.2

Respondent further contends that the sanction is too severe. But the sanction is not too severe, considering (i) respondent's prior warning and suspensions, and (ii) the importance of the Brucellosis Eradication Program. As stated in In re Burns, 48 Agric. Dec. re Grady, 45 Agric. Dec. 66, 109 (1986):

(Aug. 2, 1989), quoting from In

'See Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981); In re Rowland, 40 Agric. Dec. 1934, 1941 n. 5 (1981), aff'd, 713 F.2d 179 (6th Cir. 1983); In re Gold Bell-I&S Jersey Farms, Inc., 37 Agric. Dec. 1336, 1346 (1978), aff'd, No. 78-3134 (D.N.J. May 25, 1979), aff'd mem., 614 F.2d 770 (3d Cir. 1980).

49 Agric. Dec. 219

The brucellosis eradication program is important to the national welfare. To date, the program has cost in excess of $1 billion. It costs about $150 million [$63 million in 1987 (Tr. 8)] a year (Tr. 440).

The Brucellosis Eradication Program is described in In re Petty, 43 Agric. Dec. 1406, 1409-10 (1984), aff'd, No. 3-84-2200-R (N.D. Tex. June 5, 1986), as follows:

4. Brucellosis (also known as Bangs disease or undulant fever) is a contagious, infectious and communicable disease affecting livestock. It is transmittable to humans. 4/ (Tr. 32, 95-96, 1056-59, 1160-64, 1177-80). The incubation period of the disease varies from about 10 days to a year, but does not generally exceed several months (Tr. 95, 1180).

*Brucellosis is "a disease of man of sudden or insidious onset and long duration characterized by great weakness, extreme exhaustion on slight effort, night sweats, chilliness, remittent fever, and generalized aches and pains and acquired through direct contact with infected animals or animal products or from the consumption of milk, dairy products, or meat from infected animals" (Webster's Third New International Dictionary, Unabridged (1981), at 285).

For many years the Federal Government has maintained a vigorous and costly program directed to the control and eradication of this disease (Tr. 32-33, 1059-63). For example, in 1980, the Federal Government spent $73,715,667 for brucellosis eradication (1982 Budget Explanatory Notes, USDA, vol. 2, at 8). To control the disease, some entire herds of cattle are destroyed, with some indemnification from the Federal Government (9 C.F.R. § 51.3(a)(2) (1980); Tr. 239-41). Because of the large economic impact of the cattle industry on the nation, the success of the Brucellosis Eradication Program is of national importance.

In carrying out the Brucellosis Eradication Program, the Federal Government, through regulations issued by the United States

Department of Agriculture, regulates the interstate movement of cattle. 9 C.F.R. Part 78 (1980).

Finally, respondent's motion to dismiss Complainant's Opposition to Respondent's Petition for Appeal is denied, since complainant's document was not untimely filed, as alleged. (Even if it had been untimely filed, it would have been considered, since it would not have unduly delayed the proceeding.) For the foregoing reasons, the following order should be issued in this proceeding.

Order

The veterinary accreditation of Dr. Harley E. Purvis, Jr., under the provisions of 9 C.F.R. §§ 160-162, is hereby suspended for 6 months, starting on the 30th day after service of this order on the respondent.

In re: HARLEY E. PURVIS, JR.

V.A. Docket No. 43.

Stay Order filed February 27, 1990.

Jaru Ruley, for Complainant.

Gerald W. Chatham, Hernando, MS, for Respondent.

Order issued by Donald A. Campbell, Judicial Officer.

The order previously issued in this case is hereby stayed pending the outcome of proceedings for judicial review.

In re: ROBERT BELLINGER, D.V.M.

V.A. Docket No. 40.

Decision and Order filed January 31, 1990.

Use of health certificate without ascertaining accuracy thereof.

The Judicial Officer affirmed the order by Judge Hunt (ALJ) revoking respondent's accreditation as a veterinarian authorized to perform official duties under State-Federal disease eradication programs, because respondent permitted a Brucellosis Test Record and a United States Origin Health Certificate to be used before ascertaining that they were accurately and fully completed,

49 Agric. Dec. 226

and failed to immediately report the misuse of the Health Certificate and the Test Record to the veterinarian-in-charge or the State animal health official. Although the case was delayed over 5 years, there is no showing that the delay prejudiced respondent. The evidence exceeds a preponderance of the evidence, which is all that is required. The statute provides no subpoena power, and an ALJ can issue a subpoena only as authorized by the statute under which the proceeding is conducted. There is no showing that respondent was singled out for disciplinary action. The sanction is not too severe, considering respondent's serious violations and the importance of the Brucellosis Eradication Program.

William Jenson, for Complainant.

Respondent, Pro se.

Initial decision issued by James W. Hunt, Administrative Law Judge.
Decision and Order issued by Donald A. Campbell, Judicial Officer.

This is a disciplinary proceeding instituted by the Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture, under the regulations (9 C.F.R. § 160.1 et seq.) promulgated under the Animal Quarantine and Related Laws (21 U.S.C. § 111 et seq.). On June 20, 1989, Administrative Law Judge James W. Hunt (ALJ) issued an initial Decision and Order revoking respondent's accreditation as a veterinarian authorized to perform official duties under State-Federal disease eradication programs, because respondent permitted a Brucellosis Test Record and a United States Origin Health Certificate to be used before ascertaining that they were accurately and fully completed, and failed to immediately report the misuse of the Health Certificate and the Test Record to the veterinarian-in-charge or the State animal health official.

On August 1, 1989, respondent appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the Department's cases subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35). The case was referred to the Judicial Officer for decision on September 19, 1989.

Oral argument before the Judicial Officer, which is discretionary (7 C.F.R. § 1.145(d)), was requested by respondent, but is denied inasmuch as the issues are not complex, prior cases are persuasive as to the result here, the case has

"The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1068 (1982). The Department's present Judicial Officer was appointed in January 1971, having been involved with the Department's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' appellate litigation relating to appeals from the decisions of the prior Judicial Officer, and 8 years as administrator of the Packers and Stockyards Act regulatory program).

been thoroughly briefed, and oral argument would seem to serve no useful purpose.

Based upon a careful consideration of the record, the initial Decision and Order is adopted as the final Decision and Order in this case, except that the effective date of the order is changed in view of the appeal. Additional conclusions by the Judicial Officer follow the ALJ's conclusions.

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION

This is a disciplinary proceeding instituted by the Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture ("USDA"), under the regulations promulgated under the Animal Quarantine and Related Laws (21 U.S.C. § 111 et seq.). The Administrator ("complainant") seeks to revoke respondent's accreditation as a veterinarian because of alleged violations of the Standards for Accredited Veterinarians (9 C.F.R. § 160.1 et seq.) (also referred to as "Standards").

A hearing was held in Binghamton, New York on January 25 and 26, 1989. Complainant was represented by William Jenson, Esq. Respondent appeared pro se. Both parties filed post-hearing briefs, which have been considered together with the record in this matter.

Facts

Respondent, a licensed doctor of veterinary medicine practicing in the State of New York, has been an accredited veterinarian under the statefederal cooperative disease control program since 1971. When he received his accreditation, respondent agreed to comply with state and federal rules and regulations when conducting tests and inspections and when issuing animal health certificates. He also agreed to cooperate in the eradication of brucellosis in accordance with instructions and rules prescribed by the state

'At the hearing, respondent moved to dismiss the complaint because of the delay from the date of the alleged violation (November 1983) to the time of the hearing (January 1989). A proceeding can be dismissed because of unreasonable delay or when it prejudices a respondent. Sweeney v. Anderson, 129 F.2d 756 (10th Cir. 1942); 27 C.J.S. Dismissal & Nonsuit § 65. Although complainant has not given a satisfactory reason for the delay, respondent has not shown that he has been prejudiced. The motion to dismiss is denied, but with the caveat that an unexplained delay of over five years borders on being unreasonable and may in some future proceeding be cause for dismissal.