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2002, the Hearing Clerk sent a letter to Trimble informing him that his answer to the complaint had not been filed within the time required.

On October 11, 2002, in accordance with 7 C.F.R. § 1.139, the Inspection Service filed a motion for a default decision which the Hearing Clerk mailed to Trimble on October 15, 2002. Trimble did not object to the motion for a default decision. On December 30, 2002, Administrative Law Judge James W. Hunt (ALJ) issued a decision finding that Trimble entered "Pushover The Top" in the Charity Celebration while the horse was sore and concluded that Trimble had violated 15 U.S.C. § 1824(2)(B). The ALJ imposed a $2,200 civil penalty and disqualified Trimble for one year from showing, exhibiting, or entering any horse and from judging, managing, or otherwise participating in any horse show, horse exhibition, horse sale, or horse auction. Trimble received personal service of the ALJ's decision in Frankewing, Tennessee, on February 3, 2003.

On February 20, 2003, Trimble filed an appeal of the ALJ's decision and order. The Secretary of Agriculture issued a final decision on March 27, 2003. The Secretary adopted the ALJ's decision and order as his final decision and added additional conclusions. The Secretary affirmed the ALJ's conclusion that Trimble failed to file an answer to the complaint within the time provided for under 7 C.F.R. § 1.136(a). The Secretary also concluded that the "[a]pplication of the default provisions of the Rules of Practice does not deprive [Mr. Trimble] of his rights under the due process clause of the Fifth Amendment to the United States Constitution." The Secretary assessed Trimble a civil penalty of $2,200 and disqualified him for one year from showing, exhibiting, or entering any horse and from judging, managing, or otherwise participating in any horse show, horse exhibition, horse sale, or horse auction. This petition for review followed.

On appeal, Trimble asserts that his due process rights were violated because he was not notified in a reasonable manner of the administrative action against him regarding the alleged violations of the Horse Protection Act.

The court's review of an administrative decision regarding the Horse Protection Act is limited to a determination of whether proper legal standards were used and whether substantial evidence exists to support the decision.

62 Agric. Dec. 576

Bobo v. United States Dep't of Agric., 52 F.3d 1406, 1410 (6th Cir. 1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence means more than a scintilla, but less than a preponderance, and must be based on the record taken as a whole. Id.

Trimble contends that the service of process by certified mail of the February 4, 2002, complaint was insufficient under the due process clause of the Fifth Amendment. The facts establish that the Hearing Clerk for the Department of Agriculture sent the complaint to Trimble's last known business address by certified mail. Service by certified package is a constitutionally adequate method of notice. Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). The fact that Trimble may not have received the certified package does not negate the constitutional adequacy of the attempt to accomplish actual notice. United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996). The Secretary had no other address for notifying Trimble of the proceedings. Under these circumstances, the Secretary's effort to send the complaint to Trimble's last known address is "reasonably calculated under all the circumstances" to notify Trimble of the proceedings. DePiero v. City of Macedonia, 180 F.3d 770, 788-89 (6th Cir.1999) (serving a summons to the plaintiff's last known address is sufficient where the plaintiff was not incarcerated and where the city had no information about the plaintiff's whereabouts that would give the city reason to suspect he would not actually receive the notice mailed to his last known address).

Accordingly, the petition for review is denied.

HORSE PROTECTION ACT

DEPARTMENTAL DECISIONS

In re: BOWTIE STABLES, LLC, A TENNESSEE CORPORATION; JAMES L. CORLEW, SR., AN INDIVIDUAL; BETTY CORLEW, AN INDIVIDUAL; AND B.A. DORSEY, AN INDIVIDUAL.

HPA Docket No. 00-0017.

Decision and Order.

Filed July 11, 2003.

HPA - Horse protection - Entry - Allowing entry - Palpation - Sore - Substantial evidenceCivil penalty - Disqualification.

The Judicial Officer affirmed the decision by Administrative Law Judge Jill S. Clifton concluding that James L. Corlew, Sr., and B.A. Dorsey entered Ebony's Bad Bubba in a horse show while the horse was sore in violation of 15 U.S.C. § 1824(2)(B) and Bowtie Stables, LLC, and Betty Corlew allowed the entry of Ebony's Bad Bubba in a horse show while the horse was sore in violation of 15 U.S.C. § 1824(2)(D). The Judicial Officer assessed each Respondent a $2,200 civil penalty and disqualified each Respondent from participating in horse shows, horse exhibitions, horse sales, and horse auctions for 1 year. The Judicial Officer found substantial evidence supported the finding that the horse was sore. The Judicial Officer also found the horse manifested abnormal sensitivity in both of his forelimbs raising the presumption that he was sore and Respondents failed to rebut the presumption. The Judicial Officer held palpation is a highly reliable method for determining whether a horse is sore. The Judicial Officer also held that Ebony's Bad Bubba was entered in the 32nd Annual National Walking Horse Trainers Show even though two Designated Qualified Persons disqualified the horse from competing in the show after concluding their pre-show inspection of the horse. The Judicial Officer found that Betty Corlew could be found to have allowed the entry of Ebony's Bad Bubba in violation of 15 U.S.C. § 1824(2)(D) based on her ownership of Ebony's Bad Bubba and her control of Bowtie Stables, LLC, which was also an owner of Ebony's Bad Bubba.

Sharlene A. Deskins, for Complainant.

David F. Broderick, for Respondents.

Initial decision issued by Jill S. Clifton, Administrative Law Judge.
Decision and Order issued by William G. Jenson, Judicial Officer.

PROCEDURAL HISTORY

Bobby R. Acord, Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding by filing a "Complaint" on July 5, 2000. Complainant instituted the proceeding under the Horse

62 Agric. Dec. 580

Protection Act of 1970, as amended (15 U.S.C. §§ 1821-1831) [hereinafter the Horse Protection Act]; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice]. The Complaint includes "Billy Corlew, an individual" as one of the Respondents. On August 31, 2000, Complainant filed a "Notice of Withdrawal of Complaint Without Prejudice as to Respondent Billy Corlew." On September 8, 2000, Chief Administrative Law Judge James W. Hunt issued an "Order Allowing Withdrawal of 'Billy Corlew' as a Respondent and Order Amending Case Caption." On May 9, 2001, Complainant filed an "Amended Complaint" which added "Betty Corlew, an individual," as a Respondent.

Complainant alleges that: (1) on or about March 22, 2000, James L. Corlew, Sr., and B.A. Dorsey entered a horse known as "Ebony's Bad Bubba" as entry, 181 in class 9 at the 32nd Annual National Walking Horse Trainers Show in Shelbyville, Tennessee, while Ebony's Bad Bubba was sore, for the purpose of showing or exhibiting the horse, in violation of section 5(2)(B) of the Horse Protection Act (15 U.S.C. § 1824(2)(B)); and (2) on or about March 22, 2000, Bowtie Stables, LLC, and Betty Corlew allowed James L. Corlew, Sr., and B.A. Dorsey to enter Ebony's Bad Bubba as entry 181 in class 9 at the 32nd Annual National Walking Horse Trainers Show in Shelbyville, Tennessee, while Ebony's Bad Bubba was sore, for the purpose of showing or exhibiting the horse, in violation of section 5(2)(D) of the Horse Protection Act (15 U.S.C. § 1824(2)(D)) (Amended Compl. ¶¶ 7-8). On June 4, 2001, Bowtie Stables, LLC, James L. Corlew, Sr., Betty Corlew, and B.A. Dorsey [hereinafter Respondents] filed "Respondent's Answer to Amended Complaint" [hereinafter Answer to Amended Complaint] in which Respondents deny violating the Horse Protection Act (Answer to Amended Compl. ¶3).

Administrative Law Judge Jill S. Clifton [hereinafter the ALJ] presided at a hearing in Clarksville, Tennessee, on August 8 and 9, 2001. Sharlene A. Deskins, Office of the General Counsel, United States Department of Agriculture, represented Complainant. David F. Broderick, Broderick & Thornton, Bowling Green, Kentucky, represented Respondents.

On October 17, 2001, Respondents filed "Respondents' Proposed Findings of Fact, Conclusions and Order" and "Respondents' Opening Brief” and Complainant filed "Complainant's Proposed Findings of Fact, Conclusions of Law, Proposed Order and Brief in Support Thereof." On November 7, 2001,

Complainant filed "Complainant's Reply to the Respondent's Proposed Findings of Fact, Conclusions and Order of Dismissal." On November 8, 2001, Respondents filed "Respondents' Responsive Brief."

On April 4, 2002, the ALJ issued a "Decision and Order" [hereinafter Initial Decision and Order] in which the ALJ: (1) concluded Bowtie Stables, LLC, and Betty Corlew allowed Ebony's Bad Bubba to be entered at the 32nd Annual National Walking Horse Trainers Show in Shelbyville, Tennessee, while Ebony's Bad Bubba was sore, for the purpose of showing or exhibiting the horse, in violation of section 5(2)(D) of the Horse Protection Act (15 U.S.C. § 1824(2)(D)); (2) concluded James L. Corlew, Sr., Betty Corlew, and B.A. Dorsey entered Ebony's Bad Bubba at the 32nd Annual National Walking Horse Trainers Show in Shelbyville, Tennessee, while Ebony's Bad Bubba was sore, for the purpose of showing or exhibiting the horse, in violation of section 5(2)(B) of the Horse Protection Act (15 U.S.C. § 1824(2)(B)); (3) assessed each Respondent a $2,200 civil penalty; and (4) disqualified each Respondent from showing, exhibiting, or entering any horse and from managing, judging, or otherwise participating in any horse show, horse exhibition, horse sale, or horse auction for 1 year (Initial Decision and Order at 22-25).

On June 5, 2002, Respondents appealed to the Judicial Officer. On July 19, 2002, Complainant filed "Complainant's Opposition to the Respondents' Appeal Petition." On July 23, 2002, the Hearing Clerk transmitted the record to the Judicial Officer for consideration and decision.

Based upon a careful consideration of the record, I agree with the ALJ's Initial Decision and Order, except for the ALJ's finding that Betty Corlew was not an owner of Ebony's Bad Bubba and the ALJ's conclusion that Betty Corlew violated 15 U.S.C. § 1824(2)(B). Therefore, I adopt, with modifications, the Initial Decision and Order as the final Decision and Order.

Complainant's exhibits are designated by "CX." Respondents' exhibits are designated by "RX." Transcript references are designated by "Tr."

APPLICABLE STATUTORY AND REGULATORY PROVISIONS

15 U.S.C.:

TITLE 15-COMMERCE AND TRADE

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