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United States Department of Agriculture (U.S.D.A.)

In re: RONALD DeBRUIN
United States
54 Agric. Dec. 876 (1995)


Case Details
Printable Version
Summary:   Respondent's failure to file timely answer or deny allegations of complaint constitutes admission of allegations in complaint and waiver of hearing.

Judge Initial Decision issued by Edwin S. Bernstein, Administrative Law Judge. Decision and Order issued by Donald A. Campbell, Judicial Officer. delivered the opinion of the court.


Opinion of the Court:

This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. § 2131 et seq.), and the regulations issued thereunder (9 C.F.R. § 1.1 et seq.). On April 27, 1995, Administrative Law Judge Edwin S. Bernstein (ALJ) issued an Initial Decision and Order directing Respondent to cease and desist from various practices, including failing to keep primary enclosures clean and sanitized, failing to establish and maintain programs of disease control and adequate veterinary care, failing to individually identify dogs, and failing to construct the housing facilities so that they remain structurally sound, provide shelter from the elements and contain the animals.

On May 16, 18, and 30, 1995, 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). [FN1] Respondent seeks to file a late Answer denying the material allegations of the Complaint, and contest the allegations at a hearing. The case was referred to the Judicial Officer for decision on June 27, 1995.

Based upon a careful consideration of the entire record, the Initial Decision and Order (with a few minor editorial changes) is adopted as the Final Decision and Order, with the effective date changed in view of the appeal. Additional conclusions by the Judicial Officer follow the ALJ's conclusions.

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION

Preliminary Statement

This proceeding was instituted under the Animal Welfare Act ("Act"), as amended (7 U.S.C. § 2131 et seq.), by a complaint filed by the [Acting] Administrator, Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture, alleging that Ronald DeBruin, hereafter the Respondent, willfully violated the Act.

*2 The complaint and the Rules of Practice governing proceedings under the Act, 7 C.F.R. §§ 1.130-1.151, were served on the Respondent on March 3, 1995, by certified mail. Respondent was informed in the letter of service that an answer should be filed pursuant to the Rules of Practice and that failure to answer any allegation in the complaint would constitute an admission of that allegation.

The Respondent failed to file an answer within the time prescribed in the Rules of Practice, and the material facts alleged in the complaint, which are admitted by Respondent's failure to file an answer, are adopted and set forth herein as Findings of Fact and Conclusions of Law.

This decision and order, therefore, is issued pursuant to section 1.139 of the Rules of Practice, 7 C.F.R. § 1.139.

Findings of Fact and Conclusions of Law

1. Ronald DeBruin, hereinafter referred to as the respondent, is an individual whose address is Route 2, Prairie City, Iowa 50228.

2. The Respondent, at all times material herein, was licensed and operating as a dealer as defined in the Act and the regulations.

3. On June 5, 1992, the respondent willfully failed to individually identify dogs, in willful violation of section 11 of the Act (7 U.S.C. § 2141) and section 2.50 of the regulations (9 C.F.R. § 2.50).

4. On June 5, 1992, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and the standards specified below:

A. Primary enclosures for dogs were not kept clean and sanitized as required (9 C.F.R. § 3.11(a), (b)).

B. Indoor floor areas and other hard surfaces of sheltered housing facilities for dogs that were in contact with the animals were not impervious to moisture (9 C.F.R. § 3.3(e)(1)(i), (iii)).

C. 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)).

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

E. Primary enclosures for dogs were not constructed and maintained so that the floors protect the animals' feet and legs from injury (9 C.F.R. § 3.6(a)(1); 3.6(a)(2)(ii), (x)).

F. Watering receptacles for dogs were not kept clean and sanitized (9 C.F.R. § 3.10).

5. On November 21, 1991, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and the standards specified below:

A. Indoor floor areas and other hard surfaces of sheltered housing facilities for dogs that were in contact with the animals were not impervious to moisture (9 C.F.R. § 3.3(e)(1)(i), (iii)).

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

D. Primary enclosures for dogs were not constructed and maintained so that the floors protect the animals' feet and legs from injury (9 C.F.R. § 3.6(a)(1); 3.6(a)(2)(ii), (x)).

*3 E. Primary enclosures for dogs were not kept clean, as required (9 C.F.R. § 3.11(a)).

6. On July 25, 1991, the respondent willfully failed to maintain programs of disease control and prevention and adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine and failed to provide veterinary care to animals in need of care, in willful violation of section 2.40 of the regulations (9 C.F.R. § 2.40).

7. On July 25, 1991, the respondent willfully violated section 2.100(a) of the regulations (9 C.F.R. § 2.100(a)) and the standards specified below:

A. Indoor floor areas and other hard surfaces of sheltered housing facilities for dogs that were in contact with the animals were not impervious to moisture (9 C.F.R. § 3.3(e)(1)(i), (iii)).

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

D. Primary enclosures for dogs were not constructed and maintained so that the floors protect the animals' feet and legs from injury (9 C.F.R. § 3.6(a)(1); 3.6(a)(2)(ii), (x)).

E. Primary enclosures for dogs were not kept clean, as required (9 C.F.R. § 3.11(a)).

Conclusions

1. The Secretary has jurisdiction in this matter.

2. The following Order is authorized by the Act and warranted under the circumstances.

ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER

Under the Department's Rules of Practice Governing Formal Adjudicatory Administrative Proceedings Instituted By The Secretary, a Respondent's failure to file a timely Answer or deny the allegations of the Complaint constitutes an admission of the allegations in the Complaint and a waiver of hearing. Specifically, the Rules of Practice provide (7 C.F.R. §§ 1.136(a)-(c), .139, .141(a)):

§ 1.136 Answer.

(a) Filing and service. Within 20 days after the service of the complaint . . . the respondent shall file with the Hearing Clerk an answer signed by the respondent or the attorney of record in the proceeding. . . .

(b) Contents. The answer shall:

(1) Clearly admit, deny, or explain each of the allegations of the Complaint and shall clearly set forth any defense asserted by the respondent; or

(2) State that the respondent admits all the facts alleged in the complaint; or

(3) State that the respondent admits the jurisdictional allegations of the complaint and neither admits nor denies the remaining allegations and consents to the issuance of an order without further procedure.

(c) Default. Failure to file an answer within the time provided under § 1.136(a) shall be deemed, for purposes of the proceeding, an admission of the allegations in the Complaint, and failure to deny or otherwise respond to an allegation of the Complaint shall be deemed, for purposes of the proceeding, an admission of said allegation, unless the parties have agreed to a consent decision pursuant to § 1.138.

*4 . . . .

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

The failure to file an answer, or the admission by the answer of all the material allegations of fact contained in the complaint, shall constitute a waiver of hearing. Upon such admission or failure to file, complainant shall file a proposed decision, along with a motion for the adoption thereof, both of which shall be served upon the respondent by the Hearing Clerk. Within 20 days after service of such motion and proposed decision, the respondent may file with the Hearing Clerk objections thereto. If the Judge finds that meritorious objections have been filed, complainant's Motion shall be denied with supporting reasons. If meritorious objections are not filed, the Judge shall issue a decision without further procedure or hearing. . . .

. . . .

§ 1.141 Procedure for Hearing.

(a) Request for Hearing. Any party may request a hearing on the facts by including such request in the complaint or answer, or by a separate request, in writing, filed with the Hearing Clerk within the time in which an answer may be filed. Failure to request a hearing within the time allowed for the filing of the answer shall constitute a waiver of such hearing.

The Complaint contains allegations virtually identical to the findings of fact, supra, and states (Complaint at 4):

The respondent 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.

In addition, the letter from the Hearing Clerk enclosing a copy of the Rules of Practice and serving a copy of the Complaint on Respondent expressly and accurately advised Respondent of the effect of failure to file an Answer or plead specifically to any allegation of the Complaint. The letter states (emphasis in original):

Most importantly, you have 20 days from the receipt of this letter to file with the Hearing Clerk an original and three 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.

Respondent did not file an Answer to the Complaint. Accordingly, the default order was properly issued in this case. Although on rare occasions default decisions have been set aside for good cause shown or where Complainant did not object, [FN2] Respondent has shown no basis for setting aside the default decision here. [FN3]

The requirement in the Department's Rules of Practice that Respondents deny or explain any allegation of the Complaint and set forth any defense in a timely Answer is necessary to enable this Department to handle its large workload in an expeditious and economical manner. The Department's five ALJ's frequently dispose of 450 to 500 cases in a year. In recent years, the Department's Judicial Officer has disposed of 50 to 60 cases per year. In a recent month, 50 new cases were filed with the Hearing Clerk.

*5 The courts have recognized that administrative agencies "should be .free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties."' [FN4] If Respondent were permitted to contest some of the allegations of fact at this late date, or raise new issues, all other Respondents in all other cases would have to be afforded the same privilege. Permitting such practice would greatly delay the administrative process and would require additional personnel. However, there is no basis for permitting Respondent to present matters by way of defense at this time.

As to the sanction, the Department's current sanction policy is set forth in In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476, 497 (1991), aff'd, 991 F.2d 803, 1993 WL 128889 (9th Cir. 1993) (not to be cited as precedent under 9th Circuit Rule 36-3), as follows:

It is appropriate to state expressly the practice that has been followed by the Judicial Officer in recent cases, viz., that reliance will no longer be placed on the "severe" sanction policy set forth in many prior decisions, e.g., In re Spencer Livestock Comm'n Co., 46 Agric. Dec. 268, 435-62 (1987), aff'd on other grounds, 841 F.2d 1451 (9th Cir. 1988). Rather, the sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose.

The sanctions sought by Complainant and imposed by the ALJ are consistent with the sanctions imposed in other AWA cases of a similar nature. See, e.g., S.S. Farms Linn County, Inc., supra.

For the foregoing reasons, the following Order should be issued.

Order

1. Respondent, his agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Act and the regulations issued thereunder, and in particular, shall cease and desist from:

(a) Failing to construct and maintain housing facilities for animals so that they are structurally sound and in good repair in order to protect the animals from injury, contain them securely, and restrict other animals from entering;

(b) Failing to provide animals with adequate shelter from the elements;

(c) Failing to maintain housing facilities so that hard surfaces in contact with the animals are impervious to moisture and may be readily cleaned and sanitized;

(d) Failing to keep food and water receptacles clean and sanitized;

(e) Failing to keep primary enclosures clean and sanitized;

(f) Failing to individually identify animals, as required; and

(g) 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.

*6 2. Respondent is assessed a civil penalty of $ 5,000, which shall be paid within 90 days after service of this Order by a certified check or money order made payable to the Treasurer of the United States. The check or money order should be sent to Tejal Mehta, Marketing Division, Office of the General Counsel, United States Department of Agriculture, Room 2014, South Building, Washington D.C. 20250-1417.

3. Respondent's license is suspended for a period of 30 days and continuing thereafter until he demonstrates to the Animal and Plant Health Inspection Service that he is in full compliance with the Act, the regulations and standards issued thereunder, and this Order, including payment of the civil penalty imposed herein. When Respondent demonstrates to the Animal and Plant Health Inspection Service that he has satisfied this condition, a supplemental order will be issued in this proceeding upon the motion of the Animal and Plant Health Inspection Service, terminating the suspension.

The suspension provision shall become effective on the 35th day after service of this Order on Respondent. The cease and desist provisions shall become effective on the day after service of this Order on Respondent.

FN1 The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g), Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1280 (1988), and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994 (Pub. L. No. 103-354, § 212(a)(1), 108 stat. 3178, 3210 (1994)). 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).

FN2 In re Veg-Pro Distributors, 42 Agric. Dec. 273 (1983) (remand order), final decision, 42 Agric. Dec. 1173 (1983) (default decision set aside because service of the complaint by registered and regular mail was returned as undeliverable, and respondent's license under the Perishable Agricultural Commodities Act had lapsed before service was attempted); In re J. Fleishman & Co., 38 Agric. Dec. 789 (1978) (remand order), final decision, 37 Agric. Dec. 1175 (1978); In re Henry Christ, L.A.W.A. Docket No. 24 (Nov. 12, 1974) (remand order), final decision, 35 Agric. Dec. 195 (1976); and see In re Vaughn Gallop, 40 Agric. Dec. 217 (order vacating default decision) (case remanded to determine whether just cause exists for permitting late answer), final decision, 40 Agric. Dec. 1254 (1981).

FN3 See In re Mike Robertson, 47 Agric. Dec. 879 (1988) (default order proper where answer not filed); In re Morgantown Produce, Inc., 47 Agric. Dec. 453 (1988) (default order proper where answer not filed); In re Johnson-Hallifax, Inc., 47 Agric. Dec. 430 (1988) (default order proper where answer not filed); In re Charley Charton, 46 Agric. Dec. 1082 (1987) (default order proper where answer not filed); In re Les Zedric, 46 Agric. Dec. 948 (1987) (default order proper where timely answer not filed); In re Arturo Bejarano, 46 Agric. Dec. 925 (1987) (default order proper where timely answer not filed; respondent properly served even though his sister, who signed for the complaint, forgot to give it to him until after the 20-day period had expired); In re Schmidt & Son, Inc., 46 Agric. Dec. 586 (1987) (default order proper where timely answer not filed); In re Roy Carter, 46 Agric. Dec. 207 (1987) (default order proper where timely answer not filed; respondent properly served where complaint sent to his last known address was signed for by someone); In re Luz G. Pieszko, 45 Agric. Dec. 2565 (1986) (default order proper where answer not filed); In re Elmo Mayes, 45 Agric. Dec. 2320 (1986) (default order proper where answer not filed), rev'd on other grounds, 836 F.2d 550 (6th Cir. 1987) (unpublished); In re Leonard McDaniel, 45 Agric. Dec. 2255 (1986) (default order proper where timely answer not filed); In re Joe L. Henson, 45 Agric. Dec. 2246 (1986) (default order proper where answer admits or does not deny material allegations); In re J.W. Guffy, 45 Agric. Dec. 1742 (1986) (default order proper where answer, filed late, does not deny material allegations); In re Wayne J. Blaser, 45 Agric. Dec. 1727 (1986) (default order proper where answer does not deny material allegations); In re Northwest Orient Airlines, 45 Agric. Dec. 2190 (1986) (default order proper where timely answer not filed); In re Jerome B. Schwartz, 45 Agric. Dec. 1473 (1986) (default order proper where timely answer not filed); In re Midas Navigation, Ltd., 45 Agric. Dec. 1676 (1986) (default order proper where answer, filed late, does not deny material allegations); In re Gutman Bros., Ltd., 45 Agric. Dec. 956 (1986) (default order proper where answer does not deny material allegations); In re Dean Daul, 45 Agric. Dec. 556 (1986) (default order proper where answer, filed late, does not deny material allegations); In re Eastern Air Lines, Inc., 44 Agric. Dec. 2192 (1985) (default order proper where timely answer not filed; irrelevant that respondent's main office did not promptly forward complaint to its attorneys); In re Carl D. Cuttone, 44 Agric. Dec. 1573 (1985) (default order proper where timely answer not filed; respondent Carl D. Cuttone properly served where complaint sent by certified mail to his last business address was signed for by Joseph A. Cuttone), aff'd per curiam, 804 F.2d 153 (D.C. Cir. 1986) (unpublished); In re Corbett Farms, Inc., 43 Agric. Dec. 1775 (1984) (default order proper where timely answer not filed; respondent cannot present evidence that it is unable to pay $54,000 civil penalty where it waived its right to a hearing by not filing a timely answer); In re Ronald Jacobson, 43 Agric. Dec. 780 (1984) (default order proper where timely answer not filed); In re Joseph Buzun, 43 Agric. Dec. 751 (1984) (default order proper where timely answer not filed; respondent Joseph Buzun properly served where complaint sent by certified mail to his residence was signed for by someone named Buzun); In re Ray Mayer, 43 Agric. Dec. 439 (1984) (decision as to respondent Doss) (default order proper where timely answer not filed; irrelevant whether respondent was unable to afford an attorney), appeal dismissed, No. 84-4316 (5th Cir. July 25, 1984); In re Willard Lambert, 43 Agric. Dec. 46 (1984) (default order proper where timely answer not filed); In re Danny Rubel, 42 Agric. Dec. 800 (1983) (default order proper where respondent acted without an attorney and did not understand the consequences and scope of a suspension order); In re Randy & Mary Berhow, 42 Agric. Dec. 764 (1983) (default order proper where timely answer not filed); In re Pastures, Inc., 39 Agric. Dec. 395, 396-97 (1980) (default order proper where respondents misunderstood the nature of the order that would be issued); In re Jerry Seal, 39 Agric. Dec. 370, 371 (1980) (default order proper where timely answer not filed); In re Thomaston Beef & Veal, Inc., 39 Agric. Dec. 171, 172 (1980) (default order not set aside because of respondents' contentions that they misunderstood the Department's procedural requirements, when there is no basis for the misunderstanding).

FN4 Cella v. United States, 208 F.2d 783, 789 (7th Cir. 1953), cert. denied, 347 U.S. 1016 (1954), quoting from FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143 (1940); accord Swift & Co. v. United States, 308 F.2d 849, 851-52 (7th Cir. 1962).

 

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