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(c) Primary enclosures for dogs were not structurally sound and maintained in good repair (9 C.F.R. § 3.6(a)(1));

(d) Primary enclosures for dogs were not structurally sound and maintained in good repair so that they protect the animals from injury and have no sharp points or edges that could injure the animals (9 C.F.R. § 3.6(a)(1), (a)(2)); and

(e) Excreta was not removed from primary enclosures daily to prevent soiling of the dogs and to reduce disease hazards, insects, pests, and odors (9 C.F.R. § 3.11(a)).

7. On October 2, 2001, Respondent Wanda McQuary and Respondent Randall Jones willfully violated section 2.40 of the Regulations (9 C.F.R. § 2.40) by failing to provide veterinary care to animals in need of care.

8. On October 2, 2001, Respondent Wanda McQuary and Respondent Randall Jones willfully violated section 11 of the Animal Welfare Act (7 U.S.C. § 2141) and section 2.50 of the Regulations (9 C.F.R. § 2.50) by failing to individually identify dogs.

9. On October 2, 2001, Respondent Wanda McQuary and Respondent Randall Jones willfully violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and the Standards specified in Findings of Fact 9(a)-9(b):

(a) Primary enclosures for dogs were not structurally sound and maintained in good repair (9 C.F.R. § 3.6(a)(1)); and

(b) Primary enclosures for dogs were not structurally sound and maintained in good repair so that they protect the animals from injury and have no sharp points or edges that could injure the animals (9 C.F.R. § 3.6(a)(1), (a)(2)).

10. On March 26, 2002, Respondent Wanda McQuary and Respondent Randall Jones willfully violated section 11 of the Animal Welfare Act (7 U.S.C. § 2141) and section 2.50 of the Regulations (9 C.F.R. § 2.50) by failing to individually identify dogs.

11. On March 26, 2002, Respondent Wanda McQuary and Respondent Randall Jones willfully violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and the Standards specified in Findings of Fact 11(a)-11(c):

(a) Indoor housing facilities for dogs were not adequately ventilated and cooled so as to provide for the health and comfort of the animals at all times (9 C.F.R. § 3.2(b));

(b) Dogs in outdoor housing facilities were not provided with adequate protection from the elements (9 C.F.R. § 3.4(b)); and

(c) The premises, including buildings and surrounding grounds, were not kept in good repair, clean, and free of trash (9 C.F.R. § 3.11).

12. On September 26, 2002, Respondent Wanda McQuary and Respondent Randall Jones willfully violated section 2.40 of the Regulations (9 C.F.R. § 2.40) by failing to provide veterinary care to animals in need of

care.

13. On September 26, 2002, Respondent Wanda McQuary and Respondent Randall Jones willfully violated section 11 of the Animal Welfare Act (7 U.S.C. § 2141) and section 2.50 of the Regulations (9 C.F.R. § 2.50) by failing to individually identify dogs.

14. On September 26, 2002, Respondent Wanda McQuary and Respondent Randall Jones willfully violated section 16 of the Animal Welfare Act (7 U.S.C. § 2146) and section 2.126 of the Regulations (9 C.F.R. § 2.126) by failing to have the records of animals on hand, a program of veterinary care, and sales records located at Respondents' premises.

15. On September 26, 2002, Respondent Wanda McQuary and Respondent Randall Jones willfully violated section 2.100(a) of the Regulations (9 C.F.R. § 2.100(a)) and the Standards specified in Findings of Fact 15(a)-15(e):

(a) Indoor housing facilities for dogs were not sufficiently ventilated to provide for the health and well-being of the animals and to minimize odors, drafts, ammonia levels, and moisture condensation (9 C.F.R. § 3.2(b));

(b) The building surfaces in contact with the animals in outdoor housing facilities for dogs were not impervious to moisture (9 C.F.R. § 3.4(c)); (c) Primary enclosures for dogs were not structurally sound and maintained in good repair (9 C.F.R. § 3.6(a)(1));

(d) Primary enclosures for dogs were not kept clean and sanitized,

as required (9 C.F.R. § 3.11(b)(2)); and

(e) The premises, including buildings and surrounding grounds, were not kept in good repair, clean, and free of trash (9 C.F.R. § 3.11).

Conclusions of Law

1. The Secretary of Agriculture has jurisdiction in this matter. 2. By reason of the facts set forth in the Findings of Fact, Respondent Wanda McQuary and Respondent Randall Jones have willfully violated the Animal Welfare Act and the Regulations and Standards.

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Respondent Wanda McQuary's Appeal Petition

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62 Agric. Dec. 452

The Hearing Clerk served Respondent Wanda McQuary with the Initial Decision and Order on August 4, 2003. On September 4, 2003, 31 days after service, Respondent Wanda McQuary filed a letter dated August 22, 2003 [hereinafter McQuary's Appeal Petition]. Section 1.145(a) of the Rules of Practice provides that an appeal must be filed within 30 days after service of an administrative law judge's decision, as follows:

§ 1.145 Appeal to Judicial Officer.

(a) Filing of petition. Within 30 days after receiving service of the Judge's decision, if the decision is a written decision, ... a party who disagrees with the decision, any part of the decision, or any ruling by the Judge or who alleges any deprivation of rights, may appeal the decision to the Judicial Officer by filing an appeal petition with the Hearing Clerk.

7 C.F.R. § 1.145(a).

Respondent Wanda McQuary's late-filed appeal could be denied. However, section 1.139 of the Rules of Practice provides that an administrative law judge's default decision becomes final 35 days after service of the default decision, as follows:

§ 1.139 Procedure upon failure to file an answer or admission of facts.

Where the decision as proposed by complainant is entered, such decision shall become final and effective without further proceedings 35 days after the date of service thereof upon the respondent, unless there is an appeal to the Judicial Officer by a party to the proceeding pursuant to § 1.145.

7 C.F.R. § 1.139.

Thus, in accordance with section 1.139 of the Rules of Practice (7 C.F.R.

"United States Postal Service Domestic Return Receipt for Article Number 7001 0360 0000 0310

§ 1.139), a default decision does not become final and effective until 5 days after the 30-day appeal time has elapsed. This provision was placed in the Rules of Practice so that if an appeal is inadvertently filed up to 4 days late, e.g., because of a delay in the mail system, an extension of time could be granted by the Judicial Officer for the filing of a late appeal.' The Judicial Officer has jurisdiction to hear an appeal petition filed after the 30-day appeal time has elapsed but before the administrative law judge's decision becomes final.

The ALJ's Initial Decision and Order had not become final on September 4, 2003, when Respondent Wanda McQuary filed her appeal petition. The postmark on the envelope containing Respondent Wanda McQuary's appeal petition establishes that Respondent Wanda McQuary mailed her appeal petition from Pocahontas, Arkansas, on August 27, 2003. Under these circumstances, I grant Respondent Wanda McQuary a 1-day extension of time for filing her appeal petition. Thus, I deem Respondent

8

'In re David Finch, 61 Agric. Dec. 567, 582-84 (2002); In re Scamcorp, Inc., 55 Agric. Dec. 1395, 1405-06 (1996) (Ruling on Respondent's Motion to Reconsider Ruling Denying Motion to Dismiss Appeal); In re Sandra L. Reid, 55 Agric. Dec. 996, 999-1000 (1996); In re Rinella's Wholesale, Inc., 44 Agric. Dec. 1234, 1236 (1985) (Order Denying Pet. for Recons.); In re William T. Powell, 44 Agric. Dec. 1220, 1222 (1985) (Order Denying Late Appeal); In re Palmer G. Hulings, 44 Agric. Dec. 298, 300-01 (1985) (Order Denying Late Appeal), appeal dismissed, No. 85-1220 (10th Cir. Aug. 16, 1985); In re Toscony Provision Co., 43 Agric. Dec. 1106, 1108 (1984) (Order Denying Late Appeal), aff'd, No. 81-1729 (D.N.J. Mar. 11, 1985) (court reviewed merits notwithstanding late administrative appeal), aff'd, 782 F.2d 1031 (3d Cir. 1986) (unpublished); In re Henry S. Shatkin, 34 Agric. Dec. 296, 315 (1975) (Order Granting Motion to Withdraw Appeal).

'Had the ALJ's Initial Decision and Order become final prior to Respondent Wanda McQuary's filing an appeal, the Judicial Officer would not have had jurisdiction to consider Respondent Wanda McQuary's appeal petition. See In re Samuel K. Angel, 61 Agric. Dec. 275 (2002) (dismissing the respondent's appeal petition filed 3 days after the initial decision and order became final); In re Paul Eugenio, 60 Agric. Dec. 676 (2001) (dismissing the respondent's appeal petition filed 1 day after the initial decision and order became final); In re Harold P. Kafka, 58 Agric. Dec. 357 (1999) (dismissing the respondent's appeal petition filed 15 days after the initial decision and order became final), aff'd per curiam, 259 F.3d 716 (3d Cir. 2001) (Table); In re Kevin Ackerman, 58 Agric. Dec. 340 (1999) (dismissing Kevin Ackerman's appeal petition filed 1 day after the initial decision and order became final); In re Severin Peterson, 57 Agric. Dec. 1304 (1998) (dismissing the applicants' appeal petition filed 23 days after the initial decision and order became final); In re Queen City Farms, Inc., 57 Agric. Dec. 813 (1998) (dismissing the respondent's appeal petition filed 58 days after the initial decision and order became final); In re Gail Davis, 56 Agric. Dec. 373 (1997) (dismissing the respondent's appeal petition filed 41 days after the initial decision and order became final); In re Field Market Produce, Inc., 55 Agric. Dec. 1418 (1996) (dismissing the respondent's appeal petition filed 8 days after the initial decision and order became effective); In re Ow Duk Kwon, 55 Agric. Dec. 78 (1996) (dismissing (continued...)

62 Agric. Dec. 452

Wanda McQuary's appeal petition filed September 4, 2003, to have been timely filed.

Respondent Wanda McQuary's raises one issue related to the instant

(...continued)

the respondent's appeal petition filed 35 days after the initial decision and order became effective); In re New York Primate Center, Inc., 53 Agric. Dec. 529 (1994) (dismissing the respondents' appeal petition filed 2 days after the initial decision and order became final); In re K. Lester, 52 Agric. Dec. 332 (1993) (dismissing the respondent's appeal petition filed 14 days after the initial decision and order became final and effective); In re Amril L. Carrington, 52 Agric. Dec. 331 (1993) (dismissing the respondent's appeal petition filed 7 days after the initial decision and order became final and effective); In re Teofilo Benicta, 52 Agric. Dec. 321 (1993) (dismissing the respondent's appeal petition filed 6 days after the initial decision and order became final and effective); In re Newark Produce Distributors, Inc., 51 Agric. Dec. 955 (1992) (dismissing the respondent's appeal petition filed after the initial decision and order became final and effective); In re Laura May Kurjan, 51 Agric. Dec. 438 (1992) (dismissing the respondent's appeal petition filed after the initial decision and order became final); In re Kermit Breed, 50 Agric. Dec. 675 (1991) (dismissing the respondent's late-filed appeal petition); In re Bihari Lall, 49 Agric. Dec. 896 (1990) (stating the respondent's appeal petition, filed after the initial decision became final, must be dismissed because it was not timely filed); In re Dale Haley, 48 Agric. Dec. 1072 (1989) (stating the respondents' appeal petition, filed after the initial decision became final and effective, must be dismissed because it was not timely filed); In re Mary Fran Hamilton, 45 Agric. Dec. 2395 (1986) (dismissing the respondent's appeal petition filed with the Hearing Clerk on the day the initial decision and order had become final and effective); In re Bushelle Cattle Co., 45 Agric. Dec. 1131 (1986) (dismissing the respondent's appeal petition filed 2 days after the initial decision and order became final and effective); In re William T. Powell, 44 Agric. Dec. 1220 (1985) (stating it has consistently been held that, under the Rules of Practice, the Judicial Officer has no jurisdiction to hear an appeal after the initial decision and order becomes final); In re Toscony Provision Co., Inc., 43 Agric. Dec. 1106 (1984) (stating the Judicial Officer has no jurisdiction to hear an appeal that is filed after the initial decision becomes final), aff'd, No. 81-1729 (D.N.J. Mar. 11, 1985) (court reviewed merits notwithstanding late administrative appeal), aff'd, 782 F.2d 1031 (3d Cir. 1986) (unpublished); In re Dock Case Brokerage Co., 42 Agric. Dec. 1950 (1983) (dismissing the respondents' appeal petition filed 5 days after the initial decision and order became final); In re Veg-Pro Distributors, 42 Agric. Dec. 1173 (1983) (denying the respondent's appeal petition filed 1 day after the default decision and order became final); In re Samuel Simon Petro, 42 Agric. Dec. 921 (1983) (stating the Judicial Officer has no jurisdiction to hear an appeal that is filed after the initial decision and order becomes final and effective); In re Yankee Brokerage, Inc., 42 Agric. Dec. 427 (1983) (dismissing the respondent's appeal petition filed on the day the initial decision became effective); In re Charles Brink, 41 Agric. Dec. 2146 (1982) (stating the Judicial Officer has no jurisdiction to consider the respondent's appeal dated before the initial decision and order became final, but not filed until 4 days after the initial decision and order became final and effective), reconsideration denied, 41 Agric. Dec. 2147 (1982); In re Mel's Produce, Inc., 40 Agric. Dec. 792 (1981) (stating since the respondent's petition for reconsideration was not filed within 35 days after service of the default decision, the default decision became final and neither the administrative law judge nor the Judicial Officer has jurisdiction to consider the respondent's petition); In re Animal Research Center of Massachusetts, Inc., 38 Agric. Dec. 379 (1978) (stating failure to file an appeal petition before the effective date of the initial decision is jurisdictional); In re Willie Cook, 39 Agric. Dec. 116 (1978) (stating it is the consistent policy of the United States Department of Agriculture not to consider appeals filed more than 35 days after service of the initial decision).