The Rules of Practice provide that an answer must be filed within 20 days after service of the complaint (7 C.F.R. § 1.136(a)). Respondent Wanda (...continued) decision was properly issued where the respondent's first filing was more than 8 months 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 alleged in the complaint); In re John Walker, 56 Agric. Dec. 350 (1997) (holding the default decision was properly issued where the respondent's first filing was 126 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 Mary Meyers, 56 Agric. Dec. 322 (1997) (holding the default decision was properly issued where the respondent's first filing was 117 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 Animal Welfare Act and the Regulations and Standards alleged in the complaint); In re Dora Hampton, 56 Agric. Dec. 301 (1997) (holding the default decision was properly issued where the respondent's first filing was 135 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 and Standards alleged in the complaint); In re City of Orange, 55 Agric. Dec. 1081 (1996) (holding the default decision was properly issued where the respondent's first filing was 70 days after the respondent's answer was due and holding the respondent is deemed, by its failure to file a timely answer, to have admitted the violations of the Regulations and Standards alleged in the complaint); In re Ronald DeBruin, 54 Agric. Dec. 876 (1995) (holding the default decision was properly issued where the respondent failed to file an answer and holding the respondent is deemed, by his failure to file an answer, to have admitted the violations of the Animal Welfare Act and the Regulations and Standards alleged in the complaint); In re James Joseph Hickey, Jr., 53 Agric. Dec. 1087 (1994) (holding the default decision was properly issued where the respondent failed to file an answer and holding the respondent is deemed, by his failure to file an answer, to have admitted the violations of the Animal Welfare Act and the Regulations and Standards alleged the complaint); In re Ron Morrow, 53 Agric. Dec. 144 (1994) (holding the default decision was properly issued where the respondent was given an extension of time until March 22, 1994, to file an answer, but the answer was not received until March 25, 1994, 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), aff'd per curiam, 65 F.3d 168 (Table), 1995 WL 523336 (6th Cir. 1995), printed in 54 Agric. Dec. 870 (1995); In re Dean Daul, 45 Agric. Dec. 556 (1986) (holding the default decision was properly issued where the respondent failed to file a timely answer and, in his late answer, did not deny the material allegations of the complaint and holding the respondent is deemed, by his failure to file a timely answer and by his failure to deny the allegations in the complaint in his late answer, to have admitted the violations of the Animal Welfare Act and the Regulations alleged in the complaint); In re Ronald Jacobson, 43 Agric. Dec. 780 (1984) (holding the default decision was properly issued where the respondents failed to file a timely answer and holding the respondents are deemed, by their failure to file a timely answer, to have admitted the violations of the Standards alleged in the complaint); In re Willard Lambert, 43 Agric. Dec. 46 (1984) (holding the default decision was properly issued where the respondent failed to file an answer and holding the respondent is deemed, by his failure to file an answer, to have admitted the violations of the Animal Welfare Act and the Regulations and Standards alleged in the complaint); In re Randy & Mary Berhow, 42 Agric. Dec. 764 (1983) (holding the default decision was properly issued where the respondents failed to file an answer and holding the respondents are deemed, by their failure to file an answer, to have admitted the violations of the Standards alleged in the complaint). 62 Agric. Dec. 452 McQuary and Respondent Randall Jones failed to filed timely answers. Respondent Wanda McQuary's first and only filing in this proceeding is Respondent McQuary's Appeal Petition, which she filed 6 months 20 days after being served with the Complaint. Respondent Randall Jones' first and only filing in this proceeding is Respondent Jones' Appeal Petition, which he filed 6 months 5 days after being served with the Complaint. Respondent Wanda McQuary's and Respondent Randall Jones' failures to file timely answers are deemed, for purposes of this proceeding, admissions of the allegations in the Complaint and constitute waivers of hearing (7 C.F.R. §§ 1.136(c), .139, .141(a)). Accordingly, there are no issues of fact on which a meaningful hearing could be held in this proceeding, and the ALJ properly issued the Initial Decision and Order. Application of the default provisions of the Rules of Practice does not deprive Respondent Wanda McQuary or Respondent Randall Jones of rights under the due process clause of the Fifth Amendment to the Constitution of the United States.18 For the foregoing reasons, the following Order should be issued. ORDER 1. Respondent Wanda McQuary and Respondent Randall Jones, their 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, and in particular, shall cease and desist from: (a) Failing to provide veterinary care to animals in need of care; (b) Failing to establish and maintain programs of disease control and prevention, euthanasia, and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine; "See United States v. Hulings, 484 F. Supp. 562, 567-68 (D. Kan. 1980) (concluding that a hearing was not required under the Fifth Amendment to the Constitution of the United States where the respondent was notified that failure to deny the allegations of the complaint would constitute an admission of those allegations under the Rules of Practice and the respondent failed to specifically deny the allegations). See also Father & Sons Lumber and Building Supplies, Inc. v. NLRB, 931 F.2d 1093, 1096 (6th Cir. 1991) (stating that due process generally does not entitle parties to an evidentiary hearing where the National Labor Relations Board has properly determined that a default summary judgment is appropriate due to a party's failure to file a timely response); Kirk v. INS, 927 F.2d 1106, 1108 (9th Cir. 1991) (rejecting the contention that the administrative law judge erred by issuing a default judgment based on a party's failure to file a timely answer). (c) Failing to individually identify animals, as required; (d) Failing to maintain records of the acquisition, disposition, description, and identification of animals, as required; (e) Failing to maintain housing facilities for animals so that they are structurally sound and in good repair in order to protect the animals from injury, contain the animals securely, and restrict other animals from entering; (f) Failing to provide for the regular and frequent collection, removal, and disposal of animal and food wastes and dead animals, in a manner that minimizes contamination and disease risks; (g) Failing to construct and maintain indoor and sheltered housing facilities for animals so that they are adequately ventilated; (h) Failing to provide animals with adequate shelter from the elements; and (I) Failing to provide a suitable method for the rapid elimination of excess water and wastes from housing facilities for animals. The cease and desist provisions of this Order shall become effective as to Respondent Wanda McQuary on the day after service of this Order on Respondent Wanda McQuary. The cease and desist provisions of this Order shall become effective as to Respondent Randall Jones on the day after service of this Order on Respondent Randall Jones. 2. Respondent Wanda McQuary and Respondent Randall Jones are jointly and severally assessed an $8,800 civil penalty. The civil penalty shall be paid by certified check or money order made payable to the Treasurer of the United States and sent to: Frank Martin, Jr. United States Department of Agriculture Office of the General Counsel Marketing Division 1400 Independence Avenue, SW Room 2343-South Building Washington, DC 20250-1417 Payment of the civil penalty shall be sent to, and received by, Frank Martin, Jr., within 60 days after service of this Order on Respondent Wanda McQuary and Respondent Randall Jones. Respondent Wanda McQuary and Respondent Randall Jones shall state on the certified check or money order that payment is in reference to AWA Docket No. 03-0013. 3. Respondent Wanda McQuary's and Respondent Randall Jones' Animal 62 Agric. Dec. 452 Welfare Act license is revoked. Respondent Wanda McQuary and Respondent Randall Jones are permanently disqualified from becoming licensed under the Animal Welfare Act and the Regulations. The Animal Welfare Act license revocation provisions of this Order shall become effective as to Respondent Wanda McQuary on the 60th day after service of this Order on Respondent Wanda McQuary. The Animal Welfare Act license revocation provisions of this Order shall become effective as to Respondent Randall Jones on the 60th day after service of this Order on Respondent Randall Jones. The Animal Welfare Act license disqualification provisions of this Order shall become effective as to Respondent Wanda McQuary upon service of this Order on Respondent Wanda McQuary. The Animal Welfare Act license disqualification provisions of this Order shall become effective as to Respondent Randall Jones upon service of this Order on Respondent Randall Jones. RIGHT TO JUDICIAL REVIEW Respondent Wanda McQuary and Respondent Randall Jones have the right to seek judicial review of this Order in the appropriate United States Court of Appeals in accordance with 28 U.S.C. §§ 2341, 2343-2350. Such court has exclusive jurisdiction to enjoin, to set aside, to suspend (in whole or in part), or to determine the validity of this Order. Respondent Wanda McQuary and Respondent Randall Jones must seek judicial review within 60 days after entry of this Order. 7 U.S.C. § 2149(c). The date of entry of this Order is October 1, 2003. 492 BEEF PROMOTION AND RESEARCH ACT COURT DECISION LIVESTOCK MARKETING ASSOCIATION, v. USDA, ET AL. AND GARY SHARP ET AL. - INTERVENORS. Nos. 02-2769, 02-2832. Filed: July 8, 2003. Rehearing and Rehearing En Banc Denied Oct. 16, 2003. (Cite as: 335 F.3d 711). BPRA – First Amendment - Standing --Beef Checkoffs - Commercial speech - Government speech Regulatory scheme, broad Producer communications Compelled speech Controlled speech. Court affirmed lower court which held that the advertising paid by "Beef Checkoffs" is not immune from First Amendment considerations. The Beef Board was using BPRA funds to send messages to its members discouraging members from supporting a referendum to suspend or terminate the then current BPRA beef order [and its beef checkoffs] and to influence governmental action concerning the beef checkoff program. The market practices of beef producers were not regulated in any manner under the beef check off order. Livestock Marketing Association, et al. (LMA) had standing since they were being compelled (under the checkoff order) to support commercial speech to which they objected. LMA objected to their beef checkoff dollars being used for generic advertising such as to “promot[e] all cattle rather than American cattle." The court independently reviewed the material facts and determined that the beef check off order is in all material respects identical to the mushroom checkoff order in United Foods. The court favorably compared the advertizing aspects of the marketing order statues in United Foods, Washington State Apple Advertizing Comm 'n, Michigan Pork Producers while distinguishing it from Wileman Bros. & Elliott, Inc. The court held that "mandated support [via checkoffs] is contrary to First Amendment principals set forth in cases involving expression by groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity." The court also distinguished Central Hudson (controlled speech] versus United Foods [compelled speech]. United States Court of Appeals, Before LOKEN', Chief Judge, and McMILLIAN and FAGG, Circuit Judges. MCMILLIAN, Circuit Judge. 'The Honorable James B. Loken became Chief Judge of the United States Court of Appeals for the Eighth Circuit on April 1, 2003. |