United States Court of Appeals for the Third Circuit
SAMUEL ZIMMERMAN v. UNITED STATES OF AMERICA AND SECRETARY OF AGRICULTURE
57 Agric. Dec. 869 (1998)
Agency's choice of sanction is not to be overturned unless it is unwarranted by law, unjustified by facts, or represents abuse of discretion; sanction is not rendered invalid in particular case because it is more severe than sanctions imposed in other cases.
NYGAARD, Circuit Judge.
delivered the opinion of the court.
Opinion of the Court:
MEMORANDUM OPINION OF THE COURT
Petitioner Samuel Zimmerman is a dog kennel operator and a licensed animal dealer under the Animal Welfare Act. He was charged by the Animal and Plant Health Inspection Service in a disciplinary administrative proceeding under the Animal Welfare Act. A hearing was held before an Administrative Law Judge ("ALJ") which resulted in a Decision and Order imposing a $500 fine. The Department of Agriculture appealed the order, and the Judicial Officer, on review, issued an Opinion increasing the sanction to a $7,500 fine and a forty day suspension. Zimmerman then requested reconsideration, which was denied. He has filed a Petition for Review with this Court.
Zimmerman argues that the ALJ, who found that only two of the charges against him were "serious," correctly assessed the gravity of the situation. Zimmerman contends that the larger $7,500 fine imposed by the Judicial Officer was ""arbitrary and capricious" and must be vacated. He requests that the case be remanded, or, in the alternative, that the ALJ's less severe fine be reinstated. We will affirm.
The Acting Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture, the Complainant, instituted this disciplinary administrative proceeding under the Animal Welfare Act, as amended, see 7 U.S.C. §§ 2131-2159; the regulations and standards issued under the Animal Welfare Act, see 9 C.F.R. §§ 1.1-3.142; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes, see 7 C.F.R. §§ 1.130-.151. The Complainant alleged that on October 5, 1994, November 15, 1994, and January 31, 1995, Zimmerman did some or all of *871 the following: (1) failed to maintain complete records showing the acquisition, disposition, and identification of animals; (2) failed to maintain programs of disease control and prevention, euthanasia, 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; (3) failed to store supplies of food and bedding in a manner so as to protect them from spoilage, contamination, and vermin infestation; (4) failed to provide structurally sound and well-maintained primary enclosures for dogs in order to protect the animals from injury; (5) failed to remove excreta from primary enclosures daily in order to prevent soiling of the animals and to reduce disease hazards, insects, pests, and odors; (6) failed to keep premises where the housing facilities were located clean and in good repair to protect the animals from injury, to facilitate husbandry practices, and to reduce or eliminate breeding and living areas for rodents and other pests and vermin; (7) failed to individually identify dogs; (8) failed to make provisions for the regular and frequent collection, removal, and disposal of animal wastes and other fluids and wastes in a manner that minimized contamination and disease risks; and (9) denied the Animal and Plant Health Inspection Service entry to inspect his facility, all in willful violation of various portions of the statutes, regulations and standards governing his conduct.
**2 Zimmerman filed an Answer denying the material allegations in the Complaint. The ALJ held a hearing at which Zimmerman appeared pro se. On May 29, 1997, the ALJ's Decision and Order: (1) concluded that Zimmerman violated the Regulations and Standards; (2) ordered Zimmerman to cease and desist from violating the Animal Welfare Act and the Regulations and Standards; and (3) assessed Zimmerman a civil penalty of $500. The government appealed to the Judicial Officer.
The Judicial Officer issued a Decision and Order that affirmed the ALJ's findings of fact and concluded that Zimmerman was indeed responsible for essentially all of the failures alleged in the Complaint. Based on this conclusion, the Judicial Officer increased the civil penalty against Zimmerman to $7,500, ordered him to cease and desist from violating the Animal Welfare Act and the Regulations and Standards, and suspended his Animal Welfare Act license for a period of forty days.
Zimmerman filed a Petition for Reconsideration in which he contended (as he does before us) that the $7,500 civil penalty and the forty day license suspension were excessive. The Judicial Officer denied his Petition.
*872 II. ISSUE AND DISCUSSION
Specifically, the question before us on appeal is: "Did the Judicial Officer abuse his discretion and consider matters outside the record in increasing the penalty from a $500 fine to a $7,500 fine plus a forty-day suspension?" As previously stated, we will affirm.
The Judicial Officer found that Zimmerman had corrected some of the cited violations either during inspections or between inspections. He also found that there was no proof that Zimmerman had intentionally harmed his animals. He further determined that the refusal to allow an inspection occurred in the heat of the moment, and not in defiance of the law. Based on these factors, Zimmerman contends the penalty was excessive. We disagree.
Despite finding that Zimmerman corrected a number of the cited violations, the Judicial Officer concluded that, although corrections are encouraged and may be taken into account when determining the sanction, the correction of a condition has no bearing on the fact that a violation occurred. This is true. The law requires each dealer to be in compliance in all respects with the Regulations and Standards, and this duty exists regardless of a correction date.
Section 19 of the Animal Welfare Act provides that:
[i]f the Secretary has reason to believe that any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter, or any of the rules or regulations or standards promulgated by the Secretary hereunder, he may suspend such person's license temporarily, but not to exceed 21 days, and after notice and opportunity for hearing, may suspend for such additional period as he may specify, or revoke such license, if such violation is determined to have occurred.
Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. Each violation and each day during which a violation continues shall be a separate offense .... The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, *873 the person's good faith, and the history of previous violations.
7 U.S.C. § 2149(a) - (b).
The Judicial Officer also found that "[t]here is no evidence that Zimmerman deliberately harmed his animals." However, in regard to the effect and potential effect of Zimmerman's violations on the health and well-being of his animals, it found that:
[f]our of [Zimmerman's] violations, [Zimmerman's] failures to provide adequate veterinary care, and failures to remove excreta from primary enclosures on October 5, 1994, and November 15, 1994, constitute "serious" violations in that they directly affected the health and well-being of [ [Zimmerman's] animals .... [Zimmerman's] 10 other violations, while not " "serious, are "significant" in that they constitute violations of the Regulations and Standards which could have affected the health and well-being of animals under certain circumstances.
Zimmerman could have been assessed a maximum daily penalty of $2,500 for each of his fifteen violations, for a total of $37,500. Moreover, his license under the Animal Welfare Act could be revoked for a single willful violation of the Animal Welfare Act or the Regulations and Standards. Hence, the sanction was well within the range of options of the Judicial Officer.
Our review is very deferential. An agency's choice of sanction is not to be overturned unless it is unwarranted by the law or unjustified by the facts or represents an abuse of discretion. See Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 187-88, 93 S. Ct. 1455, 1459 (1973). Zimmerman's primary argument is that the fine amount of $7,500 is excessive in light of the fact that he only grosses between $15,000 and $25,000 per year. He points out that this level of fine is often imposed on kennel operators who earn much more each year. However, in Butz, the Supreme Court explicitly noted that a sanction is "not rendered invalid in a particular case because it is more severe than sanctions imposed in other cases." Id. at 187, 93 S. Ct. at 1459. This holding effectively counters Zimmerman's argument. Hence, the fine imposed, being well within the statutory limits and the Department's discretion, is valid.
**4 The Judicial Officer examined each of the pertinent factors under section 19 of the Animal Welfare Act, the recommendation of the Acting Administrator of the *874 Animal and Plant Health Inspection Service, and all the relevant circumstances. The sanction imposed in the November 6, 1997, Decision and Order is consistent with the Animal Welfare Act and the Department's sanction policy.
We will affirm.
FNa1. The Honorable Richard W. Goldberg, Judge for the United States Court of International Trade, sitting by designation.