62 Agric. Dec. 452 7 C.F.R. §§ 1.136(a), (c), .139, .141(a). Moreover, the Complaint clearly informs Respondent Wanda McQuary and Respondent Randall Jones of the consequences of failing to file a timely answer, as follows: The respondents shall file an answer with the Hearing Clerk, United States Department of Agriculture, Washington, D.C. 20250-9200, in accordance with the Rules of Practice governing proceedings under the Act (7 C.F.R. § 1.130 et seq.). Failure to file an answer shall constitute an admission of all the material allegations of this complaint. Compl. at 6. Similarly, the Hearing Clerk informed Respondent Wanda McQuary and Respondent Randall Jones in the February 14, 2003, service letter that a timely answer must be filed pursuant to the Rules of Practice and that failure to file a timely answer to any allegation in the Complaint would constitute an admission of that allegation, as follows: February 14, 2003 Ms. Wanda McQuary Mr. Randall Jones and Mr. Gary Jackson 565 Country [sic] Road 131 Black Rock, Arkansas 72455 Dear Sir/Madam: Subject: In re: Wanda McQuary, Randall Jones, and Gary Jackson Respondents AWA Docket No. 03-0013 Enclosed is a copy of a Complaint, which has been filed with this office under the Animal Welfare Act, as amended. Also enclosed is a copy of the Rules of Practice which govern the conduct of these proceedings. You should familiarize yourself with the rules in that the comments which follow are not a substitute for their exact requirements. The rules specify that you may represent yourself personally or by an attorney of record. Unless an attorney files an appearance in your behalf, it shall be presumed that you have elected to represent yourself personally. Most importantly, you have 20 days from the receipt of this letter to file with the Hearing Clerk an original and four copies of your written and signed answer to the complaint. It is necessary that your answer set forth any defense you wish to assert, and to specifically admit, deny or explain each allegation of the complaint. Your answer may include a request for an oral hearing. Failure to file an answer or filing an answer which does not deny the material allegations of the complaint, shall constitute an admission of those allegations and a waiver of your right to an oral hearing. In the event this proceeding does go to hearing, the hearing shall be formal in nature and will be held and the case decided by an Administrative Law Judge on the basis of exhibits received in evidence and sworn testimony subject to cross-examination. You must notify us of any future address changes. Failure to do so may result in a judgment being entered against you without your knowledge. We also need your present and future telephone number [sic]. Your answer, as well as any motions or requests that you may hereafter wish to file in this proceeding should be submitted in quadruplicate to the Hearing Clerk, OALJ, Room 1081, South Building, United States Department of Agriculture, Washington, D.C. 20250-9200. Questions you may have respecting the possible settlement of this case should be directed to the attorney whose name and telephone number appears [sic] on the last page of the complaint. Sincerely, /s/ Joyce A. Dawson Hearing Clerk 62 Agric. Dec. 452 The Hearing Clerk sent Respondent Wanda McQuary and Respondent Randall Jones a letter dated April 30, 2003, informing them that their answers to the Complaint had not been received within the time required in the Rules of Practice. On May 6, 2003, in accordance with section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), Complainant filed a Motion for Default Decision and a Proposed Default Decision. The Hearing Clerk served Respondent Wanda McQuary with Complainant's Motion for Default Decision, Complainant's Proposed Default Decision, and a service letter on May 15, 2003." The Hearing Clerk served Respondent Randall Jones with Complainant's Motion for Default Decision, Complainant's Proposed Default Decision, and the Hearing Clerk's May 6, 2003, service letter on May 17, 2003.1 15 14 The Hearing Clerk informed Respondent Wanda McQuary and Respondent Randall Jones in the May 6, 2003, service letter that they had 20 days in which to file objections to Complainant's Proposed Default Decision, as follows: May 6, 2003 Ms. Wanda McQuary Mr. Randall Jones Mr. Gary Jackson 565 Country [sic] Road 131 Black Rock, Arkansas 72455 Dear Sir/Madam: Subject: In re: Wanda McQuary, Randall Jones, and Gary Jackson AWA Docket No. 03-0013 Enclosed is a copy of Complainant's Motion for Adoption of Proposed "United States Postal Service Domestic Return Receipt for Article Number 7001 0360 0000 0304 5357. "See note 4. this office in the above-captioned proceeding. In accordance with the applicable Rules of Practice, you will have 20 days from the receipt of this letter in which to file with this office an original and three copies of objections to the Proposed Decision. Sincerely, /s/ Joyce A. Dawson Respondent Wanda McQuary and Respondent Randall Jones failed to 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). Although, on rare occasions, default decisions have been set aside for good cause shown or where the complainant states that the complainant does not object to setting aside the default decision," generally there is no basis for 16 See In re Dale Goodale, 60 Agric. Dec. 670 (2001) (Remand Order) (setting aside the default decision because the administrative law judge adopted apparently inconsistent findings of a dispositive fact in the default decision, and the order in the default decision was not clear); In re Deora Sewnanan, 60 Agric. Dec. 688 (2001) (setting aside the default decision because the respondent was not served with the complaint); In re H. Schnell & Co., 57 Agric. Dec. 1722 (1998) (Remand Order) (setting aside the default decision, which was based upon the respondent's statements during two telephone conference calls with the administrative law judge and the complainant's counsel, because the respondent's statements did not constitute a clear admission of the material allegations in the complaint and concluding that the default decision deprived the respondent of its right to due process under the Fifth Amendment to the Constitution of the United States); In re Arizona Livestock Auction, Inc., 55 Agric. Dec. 1121 (1996) (setting aside the default decision because facts alleged in the complaint and deemed admitted by failure to answer were not sufficient to find a violation of the Packers and Stockyards Act or jurisdiction over the matter by the Secretary of Agriculture); In re Veg-Pro Distributors, 42 Agric. Dec. 273 (1983) (Remand Order) (setting aside the default decision because service of the complaint by registered and regular mail was returned as undeliverable, and the respondent's license under the PACA had lapsed before service was attempted), final decision, 42 Agric. Dec. 1173 (1983); In re Vaughn Gallop, 40 Agric. Dec. 217 (1981) (Order Vacating Default Decision and Remanding Proceeding) (vacating the default decision and remanding the case to the administrative law judge to determine whether just cause exists for permitting late answer), final decision, 40 Agric. Dec. 1254 (1981); In re J. Fleishman & Co., 38 Agric. Dec. 789 (1978) (Remand Order) (remanding the proceeding to the administrative law judge for the purpose of receiving evidence because the complainant had no objection to the respondent's motion for remand), final decision, 37 Agric. Dec. 1175 (1978); In re Richard Cain, 17 Agric. Dec. 985 (1958) (Order Reopening After Default) (setting aside a default decision and accepting a late-filed answer because the complainant did (continued...) 62 Agric. Dec. 452 setting aside a default decision that is based upon a respondent's failure to file a timely answer. 17 16(...continued) not object to the respondent's motion to reopen after default). "See generally In re David Finch, 61 Agric. Dec. 567 (2002) (holding the default decision was properly issued where the respondent filed his answer 3 months 18 days after he was served with the complaint and holding the respondent is deemed, by his failure to file a timely answer, to have admitted the violations of the Animal Welfare Act and the Regulations and Standards alleged in the complaint); In re Heartland Kennels, Inc., 61 Agric. Dec. 492 (2002) (holding the default decision was properly issued where the respondents filed their answer 3 months 9 days after they were served with the complaint and holding the respondents are deemed, by their failure to file a timely answer, to have admitted the violations of the Animal Welfare Act and the Regulations and Standards alleged in the complaint); In re Steven Bourk (Decision as to Steven Bourk and Carmella Bourk), 61 Agric. Dec. 25 (2002) (holding the default decision was properly issued where Respondent Steven Bourk's first and only filing was 10 months 9 days after he was served with the complaint and Respondent Carmella Bourk's first filing was 5 months 5 days after she was served with the complaint; stating both respondents are deemed, by their failure to file a timely answer, to have admitted the violations of the Animal Welfare Act and the Regulations alleged in the complaint); In re J. Wayne Shaffer, 60 Agric. Dec. 444 (2001) (holding the default decision was properly issued where the respondents' first filing in the proceeding was 5 months 13 days after they were served with the complaint and 4 months 24 days after the respondents' answer was due and holding the respondents are deemed, by their failure to file a timely answer, to have admitted the violations of the Animal Welfare Act and the Regulations alleged in the complaint); In re Beth Lutz, 60 Agric. Dec. 53 (2001) (holding the default decision was properly issued where the respondent filed her answer 23 days after she was served with the complaint and 3 days after the respondent's answer was due and holding the respondent is deemed, by her failure to file a timely answer, to have admitted the violations of the Regulations alleged in the complaint); In re Curtis G. Foley, 59 Agric. Dec. 581 (2000) (holding the default decision was properly issued where the respondents filed their answer 6 months 5 days after they were served with the complaint and 5 months 16 days after the respondents' answer was due and holding the respondents are deemed, by their failure to file a timely answer, to have admitted the violations of the Animal Welfare Act and the Regulations and Standards alleged in the complaint); In re Nancy M. Kutz (Decision as to Nancy M. Kutz), 58 Agric. Dec. 744 (1999) (holding the default decision was properly issued where the respondent's first filing in the proceeding was 28 days after service of the complaint on the respondent and the filing did not respond to the allegations of the complaint and holding the respondent is deemed, by her failure to file a timely answer and by her failure to deny the allegations of the complaint, to have admitted the violations of the Animal Welfare Act and the Regulations alleged in the complaint); In re Anna Mae Noell, 58 Agric. Dec. 130 (1999) (holding the default decision was properly issued where the respondents filed an answer 49 days after service of the complaint on the respondents and holding the respondents are deemed, by their failure to file a timely answer, to have admitted the violations of the Animal Welfare Act and the Regulations and Standards alleged in the complaint), appeal dismissed sub nom. The Chimp Farm, Inc. v. United States Dep't of Agric., No. 00-10608-A (11th Cir. July 20, 2000); In re Jack D. Stowers, 57 Agric. Dec. 944 (1998) (holding the default decision was properly issued where the respondent filed his answer 1 year 12 days after service of the complaint on the respondent and holding the respondent is deemed, by his failure to file a timely answer, to have admitted the violations of the Animal Welfare Act and the Regulations and Standards alleged in the complaint); In re James J. Everhart, 56 Agric. Dec. 1400 (1997) (holding the default (continued...) |