This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. s 2131 et seq.), and the regulations issued thereunder (9 C.F.R. s 1.1 et seq.). On October 2, 1989, Chief Administrative Law Judge Victor W. Palmer (ALJ) issued an initial Decision and Order assessing a civil penalty of $2,500, and directing respondent to cease and desist from various practices involving interfering with inspectors during the course of an inspection.
On November 2, 1989, 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. ss 556 and 557 (7 C.F.R. s 2.35). [FN1] The case was referred to the Judicial Officer for decision on February 14, 1990.
Oral argument before the Judicial Officer, which is discretionary (7 C.F.R. s 1.145(d)), was requested by respondent, but is denied inasmuch as the issues *177 on appeal have been thoroughly briefed and oral argument would seem to serve no useful purpose.
Based upon a careful consideration of the record, the initial decision is adopted as the final decision, with a few minor editorial changes, and a few additions included within brackets. Additional conclusions by the Judicial Officer follow the ALJ's conclusions.
ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION
This is a disciplinary proceeding under the Animal Welfare Act, 7 U.S.C. s 2131 et seq., as amended ("Act"), instituted by a complaint filed on November 3, 1988, by the Administrator of the Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture. The complaint alleges that the respondent, SEMA, Inc., wilfully violated section 16 of the Act, 7 U.S.C. s 2146 and section 2.126 of the regulations issued pursuant to the Act, 9 C.F.R. s 2.126, by repeatedly threatening, harassing and otherwise intimidating APHIS inspectors while they were engaged in an inspection of the SEMA facility.
**2 Respondent filed an answer on November 29, 1988, in which it denied violating the Act.
An oral hearing was held before me on May 3-5, 1989, in Washington, D.C. Carol C. Priest, Esq. and Mary Kyle Hobbie, Esq., Office of the General Counsel, United States Department of Agriculture, appeared on behalf of the complainant. Robert D. Sokolove, Esq. and Pamela D. Huang, Esq., Kornblut & Sokolove, Chevy Chase, Maryland, appeared on behalf of the respondent.
On July 3, 1989, respondent filed a petition to reopen the hearing for the submission of additional evidence. On July 31, 1989, complainant filed a reply objecting to the proposed reopening of the hearing. Upon consideration of the proposed evidence and the arguments of counsel for the parties, I concluded that the proposed evidence to be adduced at a reopened hearing would be either irrelevant or duplicative. Respondent's petition was therefore denied on August 18, 1989.
The parties have submitted proposed findings of fact, conclusions of law and supporting briefs. All proposed findings, conclusions and arguments have been considered. To the extent indicated, they have been adopted. Otherwise, the proposed findings, conclusions and arguments have been rejected as irrelevant, immaterial or lacking legal or evidentiary basis.
*178 For the reasons set forth in the findings and conclusions which follow, an order is being entered directing the respondent to cease and desist from further violations of the Act and assessing the respondent a civil penalty in the amount of $2,500.
Relevant Statutory Provisions and Regulations
7 U.S.C. s 2146(a) states in part:
The Secretary shall make such investigations or inspections as he deems necessary to determine whether any . . . research facility . . . has violated or is violating any provision of this chapter or any regulation or standard issued thereunder, and for such purposes, the Secretary shall, at all reasonable times, have access to the places of business and the facilities, [and] animals . . . of any such . . . research facility. The Secretary shall inspect each research facility at least once each year and, in the case of deficiencies or deviations from the standards promulgated under this chapter, shall conduct such follow-up inspections as may be necessary until all deficiencies or deviations from such standards are corrected.
9 C.F.R. s 2.126 states in part:
Each . . . research facility . . . shall, during ordinary business hours, permit Veterinary Services representatives, or other Federal officers or employees designated by the Secretary, to enter his place of business to examine records required to be kept by the Act and the regulations in this part, and to make copies of such records, and permit Veterinary Services representatives to enter his place of business, to inspect such facilities, property and animals as such representatives consider necessary to enforce the provisions of the Act, the regulations and the standards in this subchapter. The use of a room, table, or other facilities necessary for the proper examination of such records and inspection of such property or animals shall be extended to such authorized representatives of the Secretary by the . . . research facility, his agents and employees.
**3 7 U.S.C. s 2149(b) states in part:
*179 Any . . . research facility . . . 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, the person's good faith, and the history of previous violations.
Findings of Fact
1. SEMA, Inc., is a corporation engaged in the business of biomedical research with animal subjects, primarily nonhuman primates. Respondent's address is 2501 Research Boulevard, Rockville, Maryland 20850.
2. Respondent, at all times material herein, was registered under the Act as a research facility.
3. At the time of respondent's application for registration under the Act, respondent was apprised of the regulations and standards promulgated pursuant to the Act. Respondent agreed in writing to comply with these regulations and standards.
4. Virtually all of respondent's research is done under contract with the National Institutes of Health (NIH). SEMA personnel work closely with NIH project officers in many areas of SEMA's operations. As a consequence of this close relationship, recommendations and requests made to SEMA by NIH officers carry considerable weight.
5. On December 6, 1986, several persons, whose identities were unknown at the time of the hearing, gained entrance to the SEMA facility. Four primates and several documents were removed. A videotape was made within the facility and was later released as, or incorporated into, the film "Breaking Barriers". Dr. Jere Phillips, SEMA's primary veterinarian, testified that documents taken from his office later were part of a derogatory report on SEMA's operations prepared by People for the Ethical Treatment of Animals (PETA), an animal rights organization. In Dr. Phillips' opinion, the unauthorized photographs, videotaped images and documents which had been released to the public were the result of several penetrations of the SEMA facility carried out between June 1986, and December 1986.
*180 6. Special Agent Alan B. Carroll, of the Federal Bureau of Investigation, Silver Spring, Maryland, who participated in the investigation of the December 6, 1986, incident, testified that in the opinion of the Bureau, a SEMA employee assisted in the theft and was probably recruited and placed at SEMA specifically for that purpose.
7. The SEMA employee suspected of complicity in the theft was no longer employed at SEMA at the time of the hearing. However, neither SEMA officials nor the law enforcement personnel involved in the investigations of the December 6, 1986, incident had been able to rule out the possibility that other infiltrators or "moles" continue to work at SEMA. These lingering suspicions have contributed to an organizational climate characterized by tension and a strong distrust of outsiders.
**4 8. After the incident of December 6, 1986, NIH security personnel and law enforcement agencies were consulted and recommendations were solicited. As a result of these discussions, SEMA took steps to improve security at the facility. These included hiring Mr. Toby Ceslar as Security Director, installing video surveillance and alarm systems, implementing a program of physical security for individual offices and documents, and prohibiting photography on the premises. At the request of NIH project officers, a coding system for necropsy reports was developed and implemented.
9. On July 29, 1987, at approximately 8:30 a.m., APHIS inspectors Janet B. Payeur, D.V.M., and Cecilia Sanz, D.V.M., arrived at respondent's facility to perform a routine inspection to ascertain compliance with the Act and pertinent regulations. They met briefly with Dr. Jere Phillips, Vice President and Institutional Veterinarian of SEMA, Inc., and Mr. James Edwards, Primate Supervisor.
10. Drs. Payeur and Sanz then began their inspection. Dr. Phillips and Mr. Edwards accompanied them. Upon entering the second room containing laboratory animals, the inspectors found a strong odor of ammonia and a large quantity of fecal matter on the floor and animal cages. Dr. Payeur took a photograph of the area. Dr. Phillips then voiced strenuous objections to the taking of photographs within the SEMA facility. While making these objections, Dr. Phillips stood in front of Dr. Payeur so as to obstruct her view and prevent her from taking additional photographs. Dr. Phillips told the inspectors he was concerned that their photographs would compromise ongoing investigations of the December 6, 1986, theft and could eventually come into the hands of PETA and similar organizations. In response, the inspectors stated that photography is a standard method of documentation *181 during inspections, that inspectors have the right to use this method and that Dr. Phillips was interfering with the inspection.
11. As Drs. Payeur and Sanz proceeded through the facility, Dr. Phillips and Mr. Edwards continued to object to the taking of photographs. At times, Dr. Phillips and Mr. Edwards prevented the inspectors from taking photographs by placing themselves between the inspectors and the areas of interest. At other times, Drs. Payeur and Sanz refrained from taking photographs solely to avoid or terminate a confrontation.
12. In the course of the inspection, Drs. Payeur and Sanz asked to review selected veterinary records, including records of necropsies performed on animals which had died. The necropsy reports provided to the inspectors contained only coded references to causes of death. The inspectors were denied direct access to the code key. Therefore, they were required to ask Dr. Phillips for the diagnosis which corresponded to each particular code which they encountered. Dr. Payeur testified that the inability to examine more than one record at a time, combined with the lack of access to the code key, hampered the inspectors' analysis of the records.
**5 13. On the day of the inspection, Dr. John Landon, the President of SEMA, was away from the facility. When he happened to call his office that morning and spoke to Ms. Nancy Piech, he was told that USDA inspectors were in the building and were taking photographs. Dr. Landon thereupon instructed Ms. Piech to summon Mr. Toby Ceslar, SEMA's Security Director, to the facility. He further instructed Ms. Piech to tell Mr. Ceslar that the inspectors were not to leave the building with the film. Dr. Landon then placed a call to Dr. James Glosser, the Administrator of APHIS, to discuss the situation. Dr. Glosser stated that inspectors have the discretionary authority to take photographs which they believe to be necessary during an inspection. Dr. Glosser further stated that he would not substitute his judgment as to the necessity of photographs in a given situation for that of an inspector on the scene. Dr. Landon placed several more calls to Ms. Piech in the course of the morning and was kept apprised of events occurring at SEMA.
14. At approximately 2:00 p.m. on July 29, 1987, Drs. Payeur and Sanz decided to break for lunch. It was their intention to return to the facility after lunch to complete their review of records, write an exit report and discuss their findings with SEMA personnel.
15. The inspectors then walked across SEMA's parking lot to their car. They placed their equipment, including their cameras, into the car's trunk and proceeded to the Marriott Hotel across the street. They discovered that the *182 hotel's restaurant was closed. They then placed a call to the APHIS Animal Care Staff and decided to drive to another restaurant.
16. Upon returning to the SEMA parking lot, Drs. Payeur and Sanz found that their car was blocked by a pickup truck parked directly behind and perpendicular to it. As the inspectors approached the car, Mr. Ceslar, respondent's Security Director, emerged from the SEMA building. In response to a question from Dr. Payeur, Mr. Ceslar indicated that the truck belonged to him. Dr. Payeur then asked Mr. Ceslar to move the truck so that she and Dr. Sanz could go to lunch. Mr. Ceslar refused and demanded the inspectors' cameras and film. Alternatively, Mr. Ceslar suggested that the inspectors return to the building to discuss the situation with Dr. Phillips. The inspectors refused to surrender the cameras and film. Mr. Ceslar then threatened to call the local police and have the inspectors arrested. Mr. Ceslar told them that they could go to lunch without the car by walking to Harvey's, a restaurant located within a few hundred yards of SEMA.
17. Drs. Payeur and Sanz did go to Harvey's, but instead of having lunch, Dr. Payeur placed a second call to the Animal Care Staff. Upon reporting Mr. Ceslar's actions and his threat to call the police, Dr. Payeur was instructed to call Mr. Donald Tracy, an attorney with the Department's Office of General Counsel. Mr. Tracy advised Dr. Payeur not to surrender the cameras and film and instructed her to initiate police assistance in the matter.
**6 18. Dr. Payeur then called the Montgomery County Police Department. A few minutes later, the inspectors saw a Montgomery County Police car on its way to SEMA. They then started walking toward the SEMA parking lot to meet the officer. As they walked, they saw Mr. Ceslar move his truck from its original position behind their car. Mr. Ceslar did so because Officer John W. McKone, of the Montgomery County Police Department, had informed him that he had no legal right to block the inspectors' vehicle and that his truck would be towed upon request. Police records show that the officer had responded to a telephone call placed by Mr. Ceslar.
19. The inspectors proceeded to their car and drove out of the SEMA parking lot. They returned to Harvey's Restaurant, where Dr. Payeur placed a third call to the Animal Care Staff. She then reported the situation to Mr. Tracy, and he advised her to return to her office as soon as possible. Based upon Mr. Tracy's advice and their own perceptions of the hazards of further contact with SEMA personnel, the inspectors decided to leave the area without completing their inspection activities, i.e., further review of records, completion of an exit report and discussion of the report with SEMA personnel.
*183 20. Though the inspectors, as noted in their reports, observed some deficiencies in sanitary conditions at SEMA suggestive of violations of APHIS regulations, they concluded that, on balance, those conditions did not violate the Act or the regulations.
Respondent violated section 16(a) of the Act, 7 U.S.C. s 2146(a), and section 2.126 of the regulations, 9 C.F.R. s 2.126, by threatening, intimidating, and otherwise interfering with APHIS inspectors during the inspection of July 29, 1987, and thereby effectively denying the inspectors access to respondent's facilities.
The Animal Welfare Act seeks to ensure the humane treatment of various species of animals used for research or experimental purposes. See H.R. Rep. No. 1651, 91st Cong., 2d Sess. 9 (1970); 7 U.S.C. s 2131; Haviland v. Butz, 545 F.2d 169, 172 (D.C. Cir. 1976). The Act and the pertinent regulations set forth detailed standards of care for such animals and provide for inspections to monitor compliance.
However, the issue in this case is not whether the respondent failed to meet the applicable standards for the care of the animals in its custody, but whether the actions of its employees on June 29, 1987, constituted a denial of access for the purpose of inspection within the meaning of 7 U.S.C. s 2146(a). Upon consideration of the evidence and the arguments of counsel, it is my conclusion that Drs. Payeur and Sanz were in effect denied such access to the SEMA facility.
The success of the Animal Welfare Act regulatory program is critically dependent upon the ability of APHIS inspectors to conduct thorough inspections and produce detailed records of their inspections. See Donald Stumbo, 43 Agric. Dec. 1079, 1092 (1984) [, aff'd, 779 F.2d 35 (2d Cir. 1985) (not to be cited as precedent)]. Inspectors have considerable discretion in selecting their methods of inspection and the way in which they document their observations. JoEtta L. Anesi, 44 Agric. Dec. 1840, 1846-1847 [(1985), appeal dismissed, 786 F.2d 1168 (8th Cir. 1986) (unpublished)]; Donald Stumbo, 43 Agric. Dec. at 1092.
**7 Photographic documentation, obtained during normal business hours, in a reasonable manner that does not disrupt ongoing research, must be *184 construed as within the boundaries of such discretion. See 7 U.S.C. ss 2146(a), 2143[(a)](6)(A)(iii); Donald Stumbo, 43 Agric. Dec. at 1092. Interference with inspectors' efforts to take reasonable photographs in a reasonable manner to enhance an inspection is "an unwarranted interference with responsible officials in the conduct of their authorized activities" and constitutes a violation of 7 U.S.C. s 2146(a). Donald Stumbo, 43 Agric. Dec. at 109
2. The evidence adduced in this proceeding indicates that Drs. Payeur and Sanz were substantially impeded in their efforts to take photographs in a reasonable manner. Although they did succeed in obtaining photographs of several areas of investigative interest, their ability to photograph various other areas was thwarted by SEMA personnel. I have found Dr. Payeur's account of Dr. Phillips' conduct to be more credible than Dr. Phillips account. His manner of objecting to photography was not only distracting but intimidating. The level of intimidation necessary to cause an experienced inspector such as Dr. Payeur to refrain from using a method which she deems necessary is undoubtedly very high. Intimidation of such magnitude is as surely as much a denial of access as would be a locked door or an obstruction to an inspector's line of sight.
The evidence also shows that the inspectors were denied effective access to needed necropsy records because they were denied the code key and could not examine more than one record at a time. Although SEMA, understandably had legitimate concerns about security and the need to comply with wishes of NIH, which help explain its actions, nonetheless the ability of APHIS inspectors to examine records as they deem necessary to ascertain whether there has been compliance with the Act cannot be made to yield to such considerations. Accordingly, it is my conclusion that respondent's failure to afford the inspectors direct and unrestricted access to the veterinary records constituted a denial of access within the meaning of 7 U.S.C. s 2146(a).
The most serious acts of interference with the inspection occurred after Dr. Landon ordered Mr. Ceslar to keep the inspectors' film from leaving the SEMA facility. Although Dr. Landon did not state precisely how he wished his instructions to be carried out, his strongly worded instructions understandably led Mr. Ceslar to take extreme measures. Mr. Ceslar blocked the inspectors' car with his truck, demanded the film and threatened to have the inspectors arrested. The inspectors became so alarmed and intimidated, that they declined to re-enter the SEMA facility to complete their inspection. Dr. Landon's instructions and Mr. Ceslar's actions clearly constituted a denial of the kind of access required under 7 U.S.C. s 2146(a).
*185 In its defense, respondent has argued that the December 6, 1986, theft, the ongoing investigations and the perception of a continuing threat of infiltration and harassment by animal rights activists created a climate of extreme tension and vigilance at SEMA. The testimony by SEMA personnel about those conditions has been accepted. However, SEMA's public relations and security problems cannot justify its intimidation and interference with the APHIS inspectors. Dr. Landon's instructions to his staff and the actions taken by Mr. Ceslar to carry out those instructions are most disturbing and indefensible. During the June 29 telephone conversation between Dr. Landon and Dr. Glosser, the ranking official at APHIS, Dr. Glosser clearly stated that he would not substitute his own judgment as to the propriety or necessity of a given inspection technique for that of an inspector on the scene. Dr. Glosser further stated that Dr. Landon could raise his objections through other channels. Dr. Glosser's statements were sufficient to place Dr. Landon on notice that Drs. Payeur and Sanz were within the boundaries of their discretionary authority, that they enjoyed the full confidence and support of their agency, and that interfering with their inspection procedures was improper. Dr. Landon's persistence in attempting to stop the inspectors from removing their film from the premises, even after his conversations with Dr. Glosser, was a principal cause of most of the hostile conduct the inspectors experienced.
**8 Complainant has requested the issuance of a cease and desist order to prevent future interference with APHIS inspectors. This request is appropriate and an appropriate order is being issued.
Additionally, complainant urges that the actions of SEMA employees on the day of the inspection constitute a violation of 7 U.S.C. s 2146(a), and that a $5,000 penalty should be assessed under 7 U.S.C. s 2146(b). Inasmuch as 7 U.S.C. s 2146(b) provides for imprisonment and fines, I have no jurisdiction to take action under it and that part of the complaint which alleges a violation of 7 U.S.C. s 2146(b) is dismissed.
On the other hand, 7 U.S.C. s 2149(b) authorizes the Secretary to assess a penalty of $2,500 for each violation of the Act. This section of the Act further provides that in determining an appropriate civil penalty, the Secretary shall consider the size of the business, the gravity of the violation, the respondent's good faith and the history of previous violations.
The record contains evidence pertaining to each of these factors. Respondent is a relatively large business which conducts extensive research programs under contract with NIH. SEMA's veterinary care program and its record of compliance with the Animal Welfare Act are satisfactory. Moreover *186 the events which occurred at SEMA on June 29, 1987, were essentially the product of poor judgment and confusion, rather than bad faith, on the part of SEMA personnel. However, the acts of resistance and intimidation committed against responsible officials of APHIS by SEMA employees constitute a very serious violation of the Act. Actions of this nature are an intolerable threat to the integrity of the Animal Welfare Act regulatory program, and normally call for severe sanctions.
In the circumstances of this case, I believe that a moderate civil penalty, in addition to a cease and desist order, is appropriate. Inasmuch as actions of SEMA personnel on the day of the inspection could be construed as either several violations or as one violation of 7 U.S.C. s 2146(a), I will treat the events as constituting a single, serious violation and assess a civil penalty in the amount of $2,500, the statutory maximum for one violation of the Act as the appropriate penalty.
ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER
Respondent raises a number of issues on appeal that are completely without merit. The decision of the ALJ is correct, based on the evidence in the case, and the civil penalty of $2,500 is not excessive, considering the serious nature of the violations. No useful purpose would be served by discussing respondent's contentions. I agree fully with the Department's views set forth in Appellee's Response to Appeal, which is attached as an Appendix to this decision (but will not be reproduced in Agriculture Decisions).
Respondent's basic error is the failure to recognize that the Department's inspectors have authority to take whatever photographs they regard as appropriate during the course of an inspection. Respondent may object to the receipt of photographs in evidence at a disciplinary hearing, but respondent is not permitted to interfere with the inspectors when the inspectors believe that a photograph is appropriate, in connection with their inspection activities.
**9 Respondent complains about the absence of discovery availability, but the record here shows that respondent was furnished with a considerable amount of material relating to complainant's case, well in advance of the hearing. Furthermore, under the Department's Rules of Practice, there is no provision for pre-hearing discovery, and in similar cases it has been held that discovery is not available. Fairbank v. Hardin, 429 F.2d 264, 268 (9th Cir.), cert. denied, 400 U.S. 943 (1970); In re Sterling Colo. Beef Co., 35 Agric. Dec. 1599, 1600 (1976) (ruling on certified questions), final decision, 39 Agric. Dec. 184 (1980), appeal dismissed, No. 80-1293 (10th Cir. Aug. 11, 1980); In re Blackfoot *187 Livestock Comm'n Co., 45 Agric. Dec. 590, 616 (1986), aff'd, 810 F.2d 916 (9th Cir. 1987); In re Beef Nebraska, Inc., 44 Agric. Dec. 2786, 2834-35 (1985), aff'd, 807 F.2d 712 (8th Cir. 1986); In re Gilardi Truck & Transp., Inc., 43 Agric. Dec. 118, 143-45 (1984); In re Machado, 42 Agric. Dec. 820, 832-36 (1983) (remand order as to respondent Cozzi), final decision, 42 Agric. Dec. 1454 (1983) (decision as to respondent Cozzi), aff'd, 749 F.2d 36 (9th Cir. 1984) (unpublished).
For the foregoing reasons, the following order should be issued.
Respondent SEMA, Inc., its agents and employees, directly or through any corporate or other device, shall comply with every provision of the Animal Welfare Act, 7 U.S.C. s 2131 et seq., and the Regulations and Standards promulgated pursuant to the Act, 9 C.F.R. s 1.1 et seq. Specifically, respondent shall cease and desist from (a) preventing or interfering in any manner with the use of photography by APHIS personnel during valid inspections; (b) denying or restricting an inspector's access to any records which the inspector deems necessary to ascertain compliance with the Act and regulations; (c) restricting in any manner an inspector's freedom of movement; (d) threatening or attempting to take possession or control of any property owned or leased by the United States Department of Agriculture, including cameras, photographic film and automobiles; and (e) interfering with, harassing or intimidating in any other manner an APHIS inspector engaged in the performance of the inspector's official duties.
Respondent is assessed a civil penalty in the amount of $2,500, to be paid no later than 90 days after service of this order, by certified check or money order, made payable to the Treasurer of the United States, and sent to Robert A. Ertman, Esq., United States Department of Agriculture, Office of the General Counsel, Room 2014, South Building, Washington, D.C. 20250-1400.
The cease and desist provisions of this order 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. ss 450c-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1280 (1988). 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).