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

IN RE: STEVEN M. SAMEK AND TRINA JOANN SAMEK
United States
57 Agric. Dec. 185 (1998)


Case Details
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Summary:   Respondent who is unable to afford attorney has no right to have counsel provided by government in disciplinary administrative proceedings conducted under Animal Welfare Act.

Judge Default Decision issued by Victor W. Palmer, Chief Administrative Law Judge. Ruling issued by William G. Jenson, Judicial Officer. delivered the opinion of the court.


Opinion of the Court:

The Acting Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding under the Animal Welfare Act, as amended (7 U.S.C. §§ 2131-2159) [hereinafter the Animal Welfare Act]; the regulations and standards issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-3.142) *186 [hereinafter the Regulations and Standards; [FN1] 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], by filing a Complaint on October 18, 1996.

The Complaint alleges that Steven M. Samek and Trina JoAnn Samek violated the Animal Welfare Act and the Regulations and Standards. [FN1] Mr. Kent A. Permentier, Senior Investigator with the Animal and Plant Health Inspection Service, personally served a copy of the Complaint on Steven M. Samek [[hereinafter Respondent] on February 21, 1997 (United States Department of Agriculture, Certificate of Personal Service of Kent A. Permentier, filed June 25, 1997).

Respondent failed to answer the Complaint within 20 days as required by section 1.136 of the Rules of Practice (7 C.F.R. § 1.136). On August 22, 1997, in accordance with section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), the Chief ALJ issued a Proposed Decision and Order Upon Admission of Facts by Reason of Default as to Steven M. Samek [hereinafter Default Decision] in which the Chief ALJ found that Respondent violated the Animal Welfare Act and the Regulations and Standards as alleged in the Complaint; assessed a civil penalty of $15,000 against Respondent; suspended Respondent's Animal Welfare Act license for 30 days; and ordered Respondent to cease and desist from violating the Animal Welfare Act and the Regulations and Standards.

On April 6, 1998, Respondent was served with the Default Decision, and on April 10, 1998, Respondent filed a motion requesting appointment of a public defender to appeal the Default Decision [hereinafter Respondent's Motion]. Respondent's Motion reads in its entirety, as follows:

**2 To the Honorable Judge Victor W. Palmer

Upon receipt of the decision of my case[,] I respectfully request to have a public defender appointed to me to appeal this decision[.]

I am [i]ncarcerated an [sic] unable to afford legal representation[.]

*187 On May 4, 1998, Complainant filed Complainant's Response to Appeal of Decision and Order [hereinafter Complainant's Response], and on May 6, 1998, the Hearing Clerk transmitted the record of the proceeding to the Judicial Officer for a ruling on Respondent's Motion.

Before ruling on Respondent's Motion, there are two general matters which must be addressed. First, Respondent improperly addressed Respondent's Motion to the Chief ALJ. Section 1.143(a) of the Rules of Practice provides that motions relating to an appeal shall be ruled on by the Judicial Officer, as follows:

§ 1.143 Motions and requests.

(a) General. All motions and requests shall be filed with the Hearing Clerk, and served upon all the parties, except (1) requests for extensions of time pursuant to § 1.147, (2) requests for subpoenas pursuant to § 1.149, and (3) motions and requests made on the record during the oral hearing. The Judge shall rule upon all motions and requests filed or made prior to the filing of an appeal of the Judge's decision pursuant to § 1.145, except motions directly relating to the appeal. Thereafter, the Judicial Officer will rule on any motions and requests, as well as the motions directly relating to the appeal.

7 C.F.R. § 1.143(a).

Respondent's Motion, which requests appointment of a public defender "to appeal" the Default Decision, directly relates to the appeal and should properly be submitted to the Judicial Officer for a ruling.

Second, Complainant responds to Respondent's Motion as if it is an appeal of the Default Decision (Complainant's Response). However, Respondent's April 10, 1998, filing does not indicate that Respondent disagrees with the Default Decision, any part of the Default Decision, or any ruling by the Chief ALJ. Further, Respondent's April 10, 1998, filing does not allege any deprivation of Respondent's rights. Section 1.145(a) of the Rules of Practice describes the purpose and contents of an appeal petition, as follows:

§ 1.145 Appeal to Judicial Officer.

(a) Filing of petition. Within 30 days after receiving service of the Judge's decision, a party who disagrees with the decision, or any part thereof, or any ruling by the Judge or any alleged deprivation of rights, may appeal such decision to the Judicial Officer by filing an appeal petition *188 with the Hearing Clerk. As provided in § 1.141(h)(2), objections regarding evidence or a limitation regarding examination or cross-examination or other ruling made before the Judge may be relied upon in an appeal. Each issue set forth in the petition, and the arguments thereon, shall be separately numbered; shall be plainly and concisely stated; and shall contain detailed citations of the record, statutes, regulations or authorities being relied upon in support thereof. A brief may be filed in support of the appeal simultaneously with the petition.

7 C.F.R. § 1.145(a).

**3 I do not find that Respondent's April 10, 1998, filing is an appeal of the Default Decision, but rather is a request for the appointment of a public defender to represent Respondent for the purposes of a contemplated appeal of the Default Decision.

The Administrative Procedure Act provides that a party in an agency proceeding may appear by or with counsel, as follows:

§ 555. Ancillary matters

...

(b) ... A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding.

5 U.S.C. § 555(b).

However, a respondent who is unable to afford an attorney has no right under the Constitution of the United States, the Administrative Procedure Act, or the Rules of Practice to have counsel provided by the government in disciplinary administrative proceedings such as those conducted under the Animal Welfare Act. [FN2] Therefore, Respondent's Motion is denied.

FN1. On March 26, 1998, Complainant filed a motion to dismiss the Complaint as to Trina JoAnn Samek (Motion to Dismiss Without Prejudice as to Trina JoAnn Samek), which Chief Administrative Law Judge Victor W. Palmer [hereinafter Chief ALJ] granted on March 31, 1998 (Dismissal of Complaint Against Trina JoAnn Samek).

FN2. See generally Elliott v. SEC, 36 F.3d 86, 88 (11th Cir. 1994) (per curiam) (rejecting petitioner's assertion of prejudice due to his lack of representation in an administrative proceeding before the Securities and Exchange Commission and stating that there is no statutory or constitutional right to counsel in disciplinary administrative proceedings before the Securities and Exchange Commission); Henry v. INS, 8 F.3d 426, 440 (7th Cir. 1993) (stating that it is well settled that deportation hearings are in the nature of civil proceedings and that aliens therefore have no constitutional right to counsel under the Sixth Amendment); Michelson v. INS, 897 F.2d 465, 467 (10th Cir. 1990) (stating that a deportation proceeding is civil in nature; thus no Sixth Amendment right to counsel exists); Lozada v. INS, 857 F.2d 10, 13 (1st Cir. 1988) (stating that because deportation proceedings are deemed to be civil, rather than criminal, in nature, petitioners have no constitutional right to counsel under the Sixth Amendment); Sartain v. SEC, 601 F.2d 1366, 1375 (9th Cir. 1979) (per curiam) (stating that 5 U.S.C. § 555(b) and due process assure petitioner the right to obtain independent counsel and have counsel represent him in a civil administrative proceeding before the Securities and Exchange Commission, but the Securities and Exchange Commission is not obliged to provide petitioner with counsel); Feeney v. SEC, 564 F.2d 260, 262 (8th Cir. 1977) (rejecting petitioners' argument that the Securities and Exchange Commission erred in not providing appointed counsel for them and stating that, assuming petitioners are indigent, the Constitution, the statutes, and prior case law do not require appointment of counsel at public expense in administrative proceedings of the type brought by the Securities and Exchange Commission), cert. denied, 435 U.S. 969 (1978); Nees v. SEC, 414 F.2d 211, 221 (9th Cir. 1969) (stating that petitioner has a right under 5 U.S.C. § 555(b) to employ counsel to represent him in an administrative proceeding, but the government is not obligated to provide him with counsel); Boruski v. SEC, 340 F.2d 991, 992 (2nd Cir.) (stating that in administrative proceedings for revocation of registration of a broker-dealer, expulsion from membership in the National Association of Securities Dealers, Inc., and denial of registration as an investment advisor, there is no requirement that counsel be appointed because the administrative proceedings are not criminal), cert. denied, 381 U.S. 943 (1965); Alvarez v. Bowen, 704 F. Supp. 49, 52 (S.D.N.Y. 1989) (stating that the Secretary of Health and Human Services is not obligated to furnish a claimant with an attorney to represent the claimant in a social security disability proceeding); In re Ray H. Mayer (Decision as to Jim Doss), 43 Agric. Dec. 439, 442 (1984) (stating that a disciplinary proceeding under the Packers and Stockyards Act, 1921, as amended and supplemented, is not a criminal proceeding and respondent, even if he cannot afford counsel, has no constitutional right to have counsel provided by the government), appeal dismissed, No. 84-4316 (5th Cir. July 25, 1984).

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