Animal Welfare Act: Related Cases
|IN RE: SEMA, INC.||49 Agric. Dec. 176 (1990)||Inspectors have considerable discretion in selecting their methods of inspection and way in which they document their observations, and photographic documentation obtained during normal business hours in reasonable manner that does not disrupt ongoing research must be construed as within boundaries of such discretion; interference with inspectors' reasonable efforts to take photographs to enhance inspection violates § 2146(a).|
|Animal Legal Defense Fund v. Veneman||490 F.3d 725 (9th Cir. 2007)||
Plaintiffs, who include the Animal Legal Defense Fund ("ALDF"), the Animal Welfare Institute ("AWI"), and three individuals, challenged the United States Department of Agriculture's ("USDA") decision not to adopt a Draft Policy that would have provided guidance to zoos, research facilities, and other regulated entities in how to ensure the psychological well-being of nonhuman primates in order to comply with the federal Animal Welfare Act ("AWA"). The district court granted USDA's motion to dismiss, to which the ALDF timely appealed. Over a vigorous dissent, an appeals court panel reversed the district court's decision. After a sua sponte call, however, a majority of active judges voted to rehear the case en banc. Yet, before the rehearing occurred, the parties had reached a settlement and had agreed to dismiss the case with prejudice provided that the panel's opinion and judgment were vacated. The majority of the en banc panel agreed to vacate the panel's opinion and judgment with prejudice, but Judge Thomas filed the dissenting opinion.
|E. LEE COX AND BECKY COX, D/B/A PIXY PALS KENNEL, PETITIONERS v. UNITED STATES DEPARTMENT OF AGRICULTURE, RESPONDENT||50 Agric. Dec. 14 (1991)||
Lee and Becky Cox, owners of Pixy Pals Kennel, petitioned for review of a decision of the Department of Agriculture suspending their license for ninety days, imposing a $12,000 civil fine, and ordering the Coxes to cease and desist from specified violations of the Animal Welfare Act. The Coxes claim that (1) the suspension violated s 558(c) of the Administrative Procedure Act because there was insufficient evidence to support the Department's finding that their violations of the Animal Welfare Act were willful; (2) they were unconstitutionally penalized for exercising their first amendment rights; and (3) the sanctions imposed on them were excessive. In affirming the USDA decision, the Eighth Circuit held that the definition of "willfulness" was not called into question; rather the Department had presented substantial evidence to demonstrate willfulness. Further, since petitioners' first amendment claim concerned the Department's "motivations," the court held that proof of motivation is a question of fact rather than law, not subject to de novo review. The sanction imposed by the Department, although severe, was not excessive given the size of petitioners' business and the severity of the violations.
|IN RE: E. LEE COX AND BECKY COX, D/B/A PIXY PALS KENNEL||50 Agric. Dec. 1662 (1991)||
On March 14, 1990, the civil penalty and suspension provisions of the order issued in this case on January 29, 1990, 49 Agric.Dec. 115, were stayed pending the outcome of proceedings for judicial review. This order is issued lifting the stay. The civil penalty of $12,000 assessed against the respondents shall be paid no later than the 90th day after service of this order.
|IN RE: S.S. FARMS LINN COUNTY, INC., JAMES W. HICKEY, MARIE HICKEY, JAMES JOSEPH HICKEY AND SHANNON HANSEN||50 Agric. Dec. 476 (1991)||Reliance is to be no longer placed on "severe" sanction policy set forth in prior decisions; rather, sanction in each case will be determined by examining nature of violations in relation to remedial purposes of regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to recommendations of administrative officials charged with responsibility for achieving congressional purpose.|
|IN RE: MARY BRADSHAW||50 Agric. Dec. 499 (1991)||
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 January 29, 1991, Administrative Law Judge James W. Hunt (ALJ) issued an Initial Decision and Order assessing a civil penalty of $10,000, and directing respondent to cease and desist from violating the Act, regulations and standards, and, in particular, to cease and desist from engaging in any activity for which a license is required without holding a valid license. The court held that a suspension order may be issued where violation occurred while respondent was not licensed.
|IN RE: PET PARADISE, INC.||51 Agric. Dec. 1047 (1992)||Where complaint advised respondent of exact matters at issue, there is no basis for dismissing any allegations of complaint merely because they failed to specify subsections of regulations or standards involved in some of alleged violations. Formalities of court pleading are not applicable in administrative proceedings. Findings of fact need only be supported by a preponderance of the evidence. A violation is willful if the person intentionally does an act which is prohibited or acts with careless disregard of statutory requirements.|
|IN RE: JEROME A. JOHNSON AND LAURA JOHNSON||51 Agric. Dec. 209 (1992)||Ability to pay civil penalty is not to be considered in determining penalty under Animal Welfare Act.|
|IN RE: TERRY LEE HARRISON AND PAMELA SUE HARRISON, RESPONDENTS||51 Agric. Dec. 234 (1992)||Willful violation is defined as one where violator either intentionally does act which is prohibited, irrespective of evil motive or reliance on erroneous advice, or acts with careless disregard of statutory requirements.|
|LEE ROACH AND ROACH LABORATORIES, INC.||51 Agric. Dec. 252 (1992)||Company which produces antiserum for medical diagnostic tests by injecting rabbits and other live animals with antigens and then extracting their blood is research facility within meaning of Act.|
|IN RE: CECIL BROWNING, DELORES BROWNING AND DARREN BROWNING, d/b/a ALLIGATORLAND SAFARI ZOO, INC.||52 Agric. Dec. 129 (1993)||
This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. s 2131 et seq.), and the regulations and standards issued thereunder (9 C.F.R. s 1.1 et seq.). On November 20, 1992, Administrative Law Judge Edwin S. Bernstein (ALJ) issued an Initial Decision and Order assessing a civil penalty of $2,000, and suspending Respondents' license for 30 days, and thereafter until they are in full compliance with the Act, regulations and standards, because Respondents failed to keep their primary enclosures sanitary and in suitable condition, failed to maintain complete records, failed to keep food and watering receptacles clean, failed to handle wastes properly, failed to provide adequate veterinarian care, and failed to utilize sufficient personnel to maintain proper husbandry practices. (Respondents were licensed exhibitors of captive wildlife, including deer, non-human primates, and bears, among other animals.) The court also found the sanctions were not too severe, considering the willfullness of the violations.
|IN RE: CRAIG LESSER AND MARILYN LESSER||52 Agric. Dec. 155 (1993)||
Respondents, Craig and Marilyn Lesser, were respectively, president and vice-president of LSR Industries, a Wisconsin corporation that was in the business of breeding and selling rabbits to research institutions, and licensed dealers under the Animal Welfare Act. The ALJ issued an Initial Decision and Order assessing civil penalties of $9,250, and suspending Respondents' license for 30 days, after respondents interfered with APHIS inspections of their facilities and failed to maintain their facilities in accordance with the standards involving housing, sanitation, cleaning, ventilation, storage of food and bedding, and lighting. However, the Judicial Officer increased the civil penalties of $9,250 assessed by the ALJ by $500, because of sanitation and waste violations, for which the ALJ assessed no civil penalties. Since Respondents did not raise any issue before the ALJ as to whether warrantless inspections are unreasonable under the Fourth Amendment, they cannot raise the issue on appeal. The Fourth Amendment is not violated by warrantless inspections under this regulatory statute.
|IN RE: RONNIE FAIRCLOTH AND JR's AUTO & PARTS, INC.||52 Agric. Dec. 171 (1993)||Individual who owned auto parts company, and who kept exotic animals on premises (allegedly as pets), was exhibitor for purposes of Act, even though economic benefit to him from exhibiting animals to public was de minimis, because individual's activities were in commerce.|
|IN RE: ALEX PASTERNAK||52 Agric. Dec. 180 (1993)||
The court concluded that respondent had committed more than thirty violations of the AWA for his abuse of his exhibition animals (mainly leopards). Among the violations were a failure to maintain required records, failure to provide veterinary care, failure to comply with standards affecting all aspects of cat care, and physically abusing animals. As a result, respondent's license was suspended, a civil penalty was imposed and an order was issued directing respondent to cease and desist from violating the Act. Although respondent sought the protection of the bankruptcy code, the automatic stay of proceedings provided by bankruptcy law does not prevent the Department from obtaining corrective action to preserve animal welfare.
|IN RE: MICHEAL McCALL AND KATHY McCALL||52 Agric. Dec. 986 (1993)||This opinion held that the USDA may impose sanctions even if respondent dealer is not licensed. Respondents were operators of kennel facilities in Washington, Kansas, and in nearby Reynolds, Nebraska. In 1991 and 1992, Respondents each applied for dealer's licenses under the Act and both were denied. The Judicial Officer affirmed that part of the Order by Judge Bernstein (ALJ) assessing civil penalties of $7,500, and ordering Respondents to cease and desist from engaging in any activity for which a license is required without being licensed, and failing to maintain their facilities in accordance with the regulations and standards involving housing, shelter, veterinary care, records, sanitation, cleaning, food, and water. However, the Judicial Officer increased from 1 year to 10 years the period in which Respondents are disqualified from becoming licensed under the Act and regulations.|
|In Defense of Animals v. National Institutes of Health||527 F.Supp.2d 23 (D.D.C., 2007)||
This FOIA case was brought against the National Institutes of Health ("NIH") by In Defense of Animals (“IDA”) seeking information related to approximately 260 chimpanzees located as the Alamogordo Primate Facility (“APF”) in New Mexico. Before the court now is NIH's Motion for Partial Reconsideration as to the release of records. This Court rejected NIH’s arguments that the records are not “agency records” because they belong to NIH's contractor, Charles River Laboratories, Inc. (“CRL”), a publicly held animal research company. Also, the Court was equally unconvinced that the information requested here is “essentially a blueprint of the APF facility,” and that release of such information presents a security risk to the facility. This Order was Superseded by In Defense of Animals v. National Institutes of Health , 543 F.Supp.2d 70 (D.D.C., 2008).
|In re: DELTA AIR LINES, INC.||53 Agric. Dec. 1076 (1994)||The Judicial Officer affirmed the Decision by Chief Judge Palmer (Chief ALJ) assessing civil penalties of $140,000, with $60,000 held in abeyance for 1 year, for transporting 108 dogs and cats in a cargo space that was without sufficient air, causing the death of 32 dogs. The Order also directs Respondent to cease and desist from violating the Act, regulations and standards, and, in particular, to cease and desist from failing to ensure that dogs and cats have a supply of air sufficient for normal breathing. On appeal, the court held that when regulated entity fails to comply with Act, regulations or standards, there is separate violation for each animal consequently harmed or placed in danger.|
|In re: JAMES JOSEPH HICKEY, JR., d/b/a S & H SUPPLY CO., AND JERRY R. BRANTON||53 Agric. Dec. 1087 (1994)||Respondents' failure to file timely answer, or deny allegations of complaint, constituted admission of complaint allegations and waiver of hearing, irrespective of respondents' contention that they were justified in not filing answer because ALJ did not rule on respondents' motions to sever, strike and make more definite and certain, since Department's rules of practice do not alter time for filing answer when such motions are filed.|
|IRVIN WILSON and PET PARADISE, INC. v. UNITED STATES DEPARTMENT OF AGRICULTURE||54 Agric. Dec. 111 (1995)||Irvin Wilson, Sr. owns a corporation named Pet Paradise, Incorporated, which included a pet shop, also called Pet Paradise, specializing in exotic animals. The pet shop was operated by Irvin Wilson, Jr., who is now incarcerated on unrelated charges. Several inspections by the United States Department of Agriculture (USDA) resulted in a finding of 61 violations involving 27 of the regulations and standards promulgated pursuant to the Animal Welfare Act, 7 U.S.C. § 2131 et seq. The USDA imposed sanctions of a $5,000 fine and a suspension of the USDA license for 30 days or until compliance is shown. This court found no reason to disturb the sanctions imposed.|
|In re: PATRICK D. HOCTOR||54 Agric. Dec. 114 (1995)||
Sanction in each case is to be determined by examining nature of violations in relation to remedial purposes of regulatory statute involved, along with all relevant circumstances, giving appropriate weight to recommendations of administrative officials having responsibility for achieving congressional purpose.
|In re: RONALD DeBRUIN||54 Agric. Dec. 876 (1995)||Respondent's failure to file timely answer or deny allegations of complaint constitutes admission of allegations in complaint and waiver of hearing.|
|In re: OTTO BEROSINI.||54 Agric. Dec. 886 (1995)||Congress has authority under Commerce Clause (Art I, § 8, cl 3) to give Department of Agriculture authority to regulate interstate activities within purview of Animal Welfare Act (7 USCS §§ 2131 et seq.), including activities of animal exhibitors.|
|In re: JULIAN J. TONEY AND ANITA L. TONEY||54 Agric. Dec. 923 (1995)||Civil penalty of $200,000.00 (largest civil penalty ever imposed under Act) was appropriate, where degree of willfulness and flagrancy of respondents' violations was astonishing, and even after hearing was pending on initial complaint, respondents continued to violate Act.|
|Haviland v. Butz||543 F.2d 169 (D.C. Cir. 1976)||
This case addresses whether the Secretary of Agriculture intended to include “animal acts” under the AWA. Animal acts are any performance of animals where such animals are trained to perform some behavior or action or are part of a show, performance, or exhibition. Defendant presented an animal act with dogs and ponies to paying audiences and occasionally appeared on commercial television. Defendant asserted that he did not “exhibit” animals simply by showing dogs and ponies and argued that the Secretary unconstitutionally added “animal acts” to the AWA. The court held that the inclusion of “animal acts” was authorized as“[t]he words ‘includes’ and ‘such as’ [in the AWA] point convincingly to the conclusion that the listing of types of exhibitions in the statutory text was intended to be but partial and illustrative.”
|In re: BIG BEAR FARM, INC., ANDREW BURR, AND CAROL BURR||55 Agric. Dec. 107 (1996)||Only requirement of 7 USCS § 2149(a), which authorizes suspension or revocation of license of exhibitor if exhibitor has violated or is violating any provision of Animal Welfare Act (7 USCS §§ 2131 et seq.) or any regulation or standard promulgated by Secretary under Act, is that at least one of violations be willful; existence of additional violations not shown to be willful does nothing to take away Secretary's authority to suspend or revoke exhibitor's license.|
|In re: WILLIAM JOSEPH VERGIS||55 Agric. Dec. 148 (1996)||Except as provided in 9 CFR § 2.11, neither Animal Welfare Act (7 USCS §§ 2131 et seq.) nor regulations issued under Act specifically provide for order prohibiting person who is unlicensed from obtaining license; nevertheless, Act provides that Secretary has general authority to promulgate such "orders," as well as such rules and regulations, as may be necessary to effectuate purposes of Act (7 USCS § 2151), which means that Secretary does have power to order that unlicensed person who violates Act, or regulations or standards under Act, be barred from licensure.|
|In re: JAMES J. EVERHART||56 Agric. Dec. 1400 (1997)||Respondent's inability to pay civil penalty is not consideration in determining civil penalties assessed under Animal Welfare Act.|
|In re: SAMUEL ZIMMERMAN||56 Agric. Dec. 1419 (1997)||Proof of respondent's willful violations of Animal Welfare Act and regulations and standards is not necessary for revocation or suspension of respondent's license where respondent received notice in writing of facts or conduct that might warrant suspension or revocation of his license, and respondent had opportunity to achieve compliance with requirements of Act and regulations and standards.|
|In re: VOLPE VITO, INC., d/b/a FOUR BEARS WATER PARK AND RECREATION AREA||56 Agric. Dec. 166 (1997)||While corrections are to be encouraged and may be taken into account when determining sanction to be imposed, even immediate correction of violation does not operate to eliminate fact that violation occurred and does not provide basis for dismissal of alleged violation.|
|In re: JACK D. STOWERS, DOING BUSINESS AS SUGAR CREEK KENNELS||56 Agric. Dec. 279 (1996)||Willfulness is not required for cease and desist orders or for monetary fines; it is only required for license revocation if agency has not given respondent written notice of violations and opportunity to come into compliance with regulations. (Chief Administrative Law Judge Victor W. Palmer imposed a civil penalty of $15,000.00, issued a cease and desist order, and revoked Respondent's license after finding that Respondent: failed to allow department officials to inspect its facility; failed to maintain complete and accurate records of the acquisition, disposition, and identification of dogs; failed to properly identify dogs; failed to hold dogs for the required period of time; offered dogs for transportation in enclosures that did not conform to structural strength and space requirements; failed to construct and maintain primary enclosures for dogs that protect the dogs from injury; failed to deliver health certificates for dogs transported interstate; failed to provide adequate veterinary care; and obtained random source dogs from individuals who had not bred and raised the dogs on their own premises.)|
|In re: DAVID M. ZIMMERMAN||56 Agric. Dec. 433 (1997)||Purpose of sanctions is to deter respondent, as well as others, from committing same or similar violations.|
|In re: DAVID M. ZIMMERMAN||57 Agric. Dec. 1038 (1998)||Ongoing pattern of violations establishes "history of previous violations" for purposes of 7 USCS § 2149(b), and it is appropriate to view evidence as establishing prior violations in determining appropriate level of civil penalty.|
|In re: JUDIE HANSEN||57 Agric. Dec. 1072 (1998)||Recommendations of administrative officials charged with responsibility for achieving congressional purpose of statute are highly relevant to any sanction to be imposed and are entitled to great weight in view of experience gained by administrative officials during their day-to-day supervision of regulated industry; however, recommendation of administrative officials as to sanction is not controlling, and in appropriate circumstances, sanction imposed may be considerably less, or different, than that recommended by administrative officials.|
|IN RE: STEVEN M. SAMEK AND TRINA JOANN SAMEK||57 Agric. Dec. 185 (1998)||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.|
|In re: JOHN D. DAVENPORT, d/b/a KING ROYAL CIRCUS.||57 Agric. Dec. 189 (U.S.D.A. May 18, 1998)||Since 7 USCS § 2140 requires that exhibitors make their records identifying animals available for inspection at all reasonable times, it is not unreasonable to expect that records be with animals as they are transported|
|In re: MARILYN SHEPHERD||57 Agric. Dec. 242 (1998)||Recommendations of administrative officials charged with responsibility for achieving congressional purpose of Animal Welfare Act are highly relevant to any sanction to be imposed and are entitled to great weight in view of experience gained by administrative officials during their day-to-day supervision of regulated industry; however, recommendation of administrative officials as to sanction is not controlling, and in appropriate circumstances, sanction imposed may be considerably less, or different, than that recommended by administrative officials.|
|In re: JAMES MICHAEL LaTORRES||57 Agric. Dec. 53 (1997)||Respondent who, after being duly notified, fails to appear at hearing for good cause, is deemed to have admitted any facts presented at hearing and all material allegations of fact contained in Animal Welfare Act complaint.|
|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.|
|In re: PETER A. LANG, d/b/a SAFARI WEST||57 Agric. Dec. 91 (1998)||Proof of willfulness is not prerequisite to concluding that respondent violated Animal Welfare Act or assessing civil penalty or issuing cease and desist order.|
|In re: JAMES E. STEPHENS AND WATER WHEEL EXOTICS, INC.||58 Agric. Dec. 149 (1999)||Ongoing pattern of violations establishes "history of previous violations" for purposes of 7 USCS § 2149(b).|
|VOLPE VITO, INC. v. UNITED STATES DEPARTMENT OF AGRICULTURE||58 Agric. Dec. 85 (1999)||Judicial officer is not required to accept ALJ's findings of fact, even when those findings are based on credibility determinations, and judicial officer is authorized to substitute his or her judgment for that of ALJ.|
|Knaust v. Digesualdo||589 Fed.Appx. 698 (5th Cir. 2014)||Appellant operated a USDA-licensed exotic animal business in Texas. In February 2010, a United States Department of Agriculture (“USDA”) Animal and Plant Health Inspection Service agent visited the business on a routine inspection and cited Appellant for several USDA regulation violations. After several subsequent inspections, several other violations were discovered and Appellant was presented with a Notice of Intent to Confiscate Animals. The next day, the animals were confiscated. Using Bivens, Appellant argued the agents violated her Fifth Amendment Due Process rights by (1) seizing her property without providing a method for challenging the seizure and (2) not allowing sufficient time to cure the cited violations prior to seizing her property. The district court granted Defendants' motion to dismiss for failure to state a claim. On appeal, the 9th Circuit affirmed the district court’s decision because the Appellant failed to assert factual allegations showing how each defendant, by his or her own individual acts, violated her constitutional rights.|
|People for Ethical Treatment of Animals, Inc. v. United States Department of Agriculture||60 F.Supp.3d 14 (D.D.C. 2014)||On December 16, 2013, this Court issued an Opinion that dismissed a lawsuit brought by People for the Ethical Treatment of Animals alleging that the United States Department of Agriculture had unlawfully failed to implement the Animal Welfare Act with respect to birds. The Court found that the actions PETA sought to compel USDA to take—promulgating bird-specific regulations and enforcing the AWA against bird abusers—were committed to the agency's discretion by law. On January 13, 2014, PETA moved for reconsideration of the second part of that decision. PETA also asked, in the alternative, for leave to amend its Complaint. The government opposed both requests. Because the Court stands by its initial conclusions, and because leave to amend was not allowed at this juncture, it denied PETA's Motion. This case was appealed, see People for the Ethical Treatment of Animals v. U.S. Dept. of Agriculture, 797 F.3d 1087 (D.C. Cir., 2015). For a prior District Court case, see People for the Ethical Treatment of Animals v. U.S. Dept. of Agriculture, 7 F. Supp. 3d 1 (D.D.C. 2013)|
|White v. U.S.||601 F.3d 545 (C.A.6 (Ohio), 2010)||
The Plaintiff-Appellants are citizens (show bird breeders, feed store owners, and game bird judges) who allege that the AWA amendments to § 2156 concerning animal fighting ventures have caused them various individual and collective injuries. The plaintiffs-appellants allege that these provisions are unconstitutional insofar as they constitute a bill of attainder; violate the principles of federalism contained in, inter alia, the Ninth, Tenth, and Eleventh Amendments to the United States Constitution; and unduly impinge on the plaintiffs-appellants' First Amendment right of association, constitutional right to travel, and Fifth Amendment right to due process for deprivations of property and liberty. The district court dismissed the lawsuit for lack of Article III standing. The Sixth Circuit held that while economic injuries may constitute an injury-in-fact for the purposes of Article III standing, the plaintiffs' alleged economic injuries due to restrictions on cockfighting are not traceable only to the AWA. Additionally, because the AWA does not impose any penalties without a judicial trial, it is not a bill of attainder. The decision of the district court was affirmed.
|U.S. ex rel. Haight v. Catholic Healthcare West||602 F.3d 949 (9th Cir., 2010)||
The plaintiffs, In Defense of Animals and Patricia Haight brought suit against the defendants under the False Claims Act. In 1997, defendant Michael Berens, Ph.D., submitted a grant application to the NIH in which he sought federal funding for a project to develop a canine model to study glioma, a form of human brain cancer, and attempted to create a process for implanting gliomas in the brains of beagles. The district court granted summary judgment to the defendants, holding that the plaintiffs failed to produce sufficient evidence from which a reasonable jury could find that the challenged grant application statements were objectively false.
|Humane Society of U.S. v. U.S. Postal Service||609 F.Supp.2d 85 (D.D.C.,2009)||
The question in this case centers on whether a response from the United States Postal Service (USPS) to the Humane Society of the United States (HSUS) qualifies as a "final agency action" for purposes of judicial reviewability under the APA. At issue is the HSUS's petition to the USPS to declare a monthly periodical entitled The Feathered Warriror unmailable under the AWA. While the USPS has been broadly exempted from judicial review under the APA, there are exceptions, which include “proceedings concerning the mailability of matter." While the term "proceedings" is largely undefined in the Act, the Court held that it would not limit the term to the post hoc meaning ascribed by the USPS that limits it to only "formal" proceedings. Despite finding that the actions taken by the USPS were indeed judicially reviewable, the court remanded the matter because, after the Humane Society initiated this lawsuit, Congress amended § 2156 of the Animal Welfare Act again, further defining issue of nonmailable animal fighting material.
|Zimmerman v. Wolff||622 F.Supp.2d 240 (E.D. Pa. 2008)||Plaintiff initiated this action against defendant in his official capacity as Secretary of the Pennsylvania Department of Agriculture, asking the Court to enjoin defendant from seizing plaintiff's dogs and from preventing him from operating his dog kennel under his federal license. Plaintiff simultaneously filed a motion for a temporary restraining order and a preliminary injunction. The State moved for dismissal due to lack of subject matter jurisdiction. Since the Animal Welfare Act did not create a private cause of action, the district court dismissed the claim for lack of subject matter jurisdiction. Plaintiff’s constitutional claims were also dismissed because the court lacked subject matter jurisdiction over constitutional claims brought against state actors directly. Plaintiff’s motions were therefore denied and defendant’s motion was granted. The court went on to address whether it would be appropriate to grant plaintiff leave to amend his complaint to bring the Commerce and Supremacy clause claims under 42 U.S.C. § 1983 and found that it would be futile for both.|
|U.S. v. Hackman||630 F.3d 1078 (8th Cir. 2011)||Defendants appealed sentences arising out of a Missouri-based dog-fighting conspiracy. Each man pleaded guilty to conspiring to engage in animal fighting ventures in violation of 18 U.S.C. § 371, and one Defendant additionally pleaded guilty to engaging in animal fighting ventures in violation of 7 U.S.C. § 2156. When sentencing each defendant, the district court applied an upward departure provision found in the application notes to United States Sentencing Guidelines (USSG or Guidelines). Each appellant argued that his relevant conduct was not sufficiently cruel to warrant the upward departure. The 8th Circuit found, however, that the district court had properly considered conduct that was legally relevant to Defendants' sentencing under the Guidelines. The court also found that Defendants' conduct amounted to more than just possessing fighting pit bulls. Defendants bred, raised, trained, sold, and fought them knowing that the dogs would be allowed, if not required, to fight until severely injured or dead. Thus, the ordinary cruelty inherent in dog fighting justifies base offense level, while the extraordinary cruelty of Defendants' crimes separately justified the upward departure. The district court's judgment was affirmed.|
|Schmidt, d/b/a Top of the Ozark Auction||65 Agric. Dec. 60 (U.S.D.A. Feb. 10, 2006)||The Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture instituted a disciplinary proceeding alleging that Jerome Schmidt, a veterinarian, willfully violated the regulations and standards promulgated under the Animal Welfare Act. The alleged violations were based upon ten inspections conducted by a USDA inspector of Schmidt’s Top of the Ozark Auction facility where he conducted dog auctions. The 36 alleged violations centered on housing standards, structural soundness, soundness and security of the enclosures, house keeping and sanitation, trash on the premises, sufficiency of the lighting, the adequacy of the Schmidt’s insect and rodent control program, and interference and refusal of access to a USDA inspector. The Court found that the frequent inspections of Schmidt’s auction facility were inconsistent with and not based upon an objective risk-based assessment. None of the inspections, with the potential exception of one, conformed to the requirements of established Agency guidelines or policy. The inspector’s findings were exaggerated, biased, and unsupported by sufficient credible objective evidence of non-compliance. The egregious behavior of the inspector tainted the inspection results and, therefore, were precluded from being used for the purposes of an enforcement action. The Court ultimately dismissed the complaint against Schmidt and directed the Administrator of APHIS to take appropriate action to insure that the published polices and procedures of the Department are followed by APHIS personnel in future inspections.|
|State v. DeFrancesco||668 A.2d 348 (Conn. 1995)||
After the USDA went to the defendant’s house to perform a prelicense inspection for an Animal Welfare Act permit for a rabbit, the USDA discovered the defendant also kept a Bengal cat, a Jungle cat and a Bobcat on the premises; the USDA then notified the Connecticut Department of Environmental Protection (DEP) about the three cats. After the defendant’s attempt to sell the three cats, the DEP confiscated them and placed them in the care of an expert; the DEP also charged the defendant with three misdemeanor violations of General Statutes section 26-40a. After trial and appellate court determinations, the Connecticut Supreme Court found the three cats to be included on the list of prohibited felidae in General Statutes section 26-40a and found General Statutes section 26-40a did not violate Due Process.