Cox v. U.S. Dept. of Agriculture

• Decision Date: 13 February 1991
• Docket Number: No. 90-1384,90-1384
• Citation: 925 F.2d 1102
• Parties: E. Lee COX and Becky Cox, d/b/a Pixy Pals Kennel, Petitioners, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1102

925 F.2d 1102

E. Lee COX and Becky Cox, d/b/a Pixy Pals Kennel, Petitioners, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.

No. 90-1384.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 14, 1990.

Decided Feb. 13, 1991.

Robert F. Bartle, Lincoln, Neb., for petitioners.

Jeffrey A. Knishkowy, U.S. Dept. of Agriculture, Washington, D.C., for respondent.

Before ARNOLD and MAGILL, Circuit Judges, and BATTEY, ^* District Judge.

MAGILL, Circuit Judge.

Lee and Becky Cox, owners of Pixy Pals Kennel, petition 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 Sec. 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. We affirm.

I.

The Coxes, at the time relevant to this action, jointly owned and operated Pixy Pals Kennel. ¹ Pixy Pals is one of the largest dog brokers in Nebraska and has a gross income of over $1 million per year. During 1985 the Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) began investigating the Coxes for suspected violations of the Animal Welfare Act (AWA), 7 U.S.C. Secs. 2131-2156 (1982), and accompanying regulations. In January 1988, an APHIS investigator, Bob Wells, arrived to inspect the facility and records. Lee Cox told him to leave and said that Wells would have to make an appointment at least two weeks in advance if he wanted any information. While escorting Wells to his car, Cox said, "you people are just like the Gestapo ... you're just like the Communists ... leave and don't ever come back." After this incident, the Coxes sent a letter to APHIS stating that APHIS had no right to enter their property without their express written approval and repeating their demand of two weeks' notice before any inspection could take place. The Coxes also sent copies of this letter to other dog breeders and pet store owners with a cover letter urging them to sign it and send it to APHIS. The Coxes had earlier put out at least one newsletter critical of the Department and addressed to the same audience. That newsletter, although primarily devoted to criticism of the American Kennel Club, also referred to the A.K.C.'s "communistic conspirator friends at U.S.D.A."

The Department filed charges against the Coxes, and a hearing was held before an administrative law judge (ALJ) in December 1988. The ALJ found that the Coxes had committed forty-one violations of the AWA and its regulations, as follows: (1) twelve violations of 9 C.F.R. Sec. 2.130, ² delivering dogs less than eight weeks old to carriers for transportation in commerce; (2) thirteen violations of 7 U.S.C. Sec. 2135 and 9 C.F.R. Sec. 2.101, ³ failure to hold dogs at least five days after acquisition; (3) fifteen violations of 7 U.S.C. Sec. 2140 and 9 C.F.R. Sec. 2.75, ⁴ failure to maintain accurate records; ⁵ and (4) one violation ⁶ of 7 U.S.C. Sec. 2146 and 9 C.F.R. Sec. 2.126, ⁷ refusing to permit APHIS officials to inspect the Pixy Pals facility and records. All of the violations except the failure to permit inspection took place during 1985. The ALJ ordered the Coxes to cease and desist from these violations, imposed a $12,000 fine on them, and suspended their license for ninety days. In addition, the suspension was to continue until they demonstrated compliance with the AWA and regulations.

The Coxes appealed to the Department of Agriculture's judicial officer (JO), who affirmed the ALJ's decision. The Coxes then petitioned this court for review. They ask that we set aside the JO's order or, in the alternative, modify the sanctions imposed.

II.

The Department of Agriculture's decision must be upheld if it is supported by substantial evidence. Western States Cattle Co. v. United States Dep't of Agric., 880 F.2d 88, 89 (8th Cir.1989); Farrow v. United States Dep't of Agric., 760 F.2d 211, 213 (8th Cir.1985). ⁸ Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938).

A. Willfulness

The Coxes argue first that the evidence is insufficient to sustain a finding of willfulness, which is required under Sec. 558(c) of the Administrative Procedure Act before a suspension may be imposed. 5 U.S.C. Sec. 558(c) (1988). Willfulness, as both parties point out in their briefs, includes not only intent to do a prohibited act but also careless disregard of statutory requirements. Goodman v. Benson, 286 F.2d 896, 900 (7th Cir.1961); accord George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 994 (2d Cir.), cert. denied, 419 U.S. 830, 95 S.Ct. 53, 42 L.Ed.2d 55 (1974); Arab Stock Yard, Inc., 37 Agric.Dec. 293, 306 (1978), aff'd mem. 582 F.2d 39 (5th Cir.1978); see also Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 93 S.Ct. 1455, 1459 n. 5, 36 L.Ed.2d 142 (1973) (" 'Wilfully' could refer to either intentional conduct or conduct that was merely careless or negligent.").

The Coxes incorrectly assert that the willfulness of their violations of the AWA is a question of law to be reviewed de novo by this court. It is true that the definition of willfulness is a question of law to be reviewed de novo; however, that question is not before us. Nor are we to consider whether, as a matter of law, the Coxes' actions met that definition; rather, we must decide whether the evidence is legally sufficient, under the substantial evidence standard, to support the Department's finding that the violations were willful. There is ample evidence to support this finding. Refusing to permit inspection is obviously willful. The same goes for falsifying records. Of course, people write down the wrong date accidentally on occasion, but when it happens three times within a one-month period and when each time the change makes an illegal act appear legal, an inference of willfulness is justified. The Coxes argue that even if their records were wrong, they themselves did not violate the AWA because the dates in the records were supplied and recorded by their employees. Section 2139 of the AWA, however, imputes the acts of employees to their employers. ⁹

As for the holding violations, there is substantial evidence that they too were willful. The ALJ did not believe Becky Cox's testimony that she believed the information in the records to be accurate. The fact that the Coxes falsified records to cover up the holding period violations shows that they knew they had committed them and suggests that these violations were deliberate.

Finally, the Coxes contend that because they in good faith believed that the puppies were eight weeks old at the time of sale, they did not willfully violate the eight-week age minimum. The Coxes did not find out that the puppies were too young, they say, until they received the American Kennel Club papers showing the date of birth after the puppies had already been shipped. Ignorance is not a defense, especially when it is avoidable; the Coxes could have made sure they were complying with the law by waiting for the A.K.C. papers to arrive. See James & Julia Stuekerjuergen, 44 Agric.Dec. 186, 190 (1985) (dealers assumed the risk that the dogs might be underage when they sold them without waiting for the papers). Such careless disregard of statutory requirements constitutes willfulness. See id.

Finally, it should be pointed out that for a suspension to be authorized in this case, the only requirement is that at least one of the violations be willful. See 7 U.S.C. Sec. 2149(a); 5 U.S.C. Sec. 558(c). ¹⁰ The government need not show that all the violations were willful.

B. First Amendment

The Coxes next contend that they were punished for exercising their free speech rights: specifically, for their letter to APHIS, for the letters they sent to other dog breeders and pet store owners, and for Lee Cox's insulting remarks to the APHIS inspector. A reviewing court is required to set aside agency action, findings, and conclusions "contrary to constitutional right." 5 U.S.C. Sec. 706(2)(B). Although questions of constitutional law are reviewed de novo, whether the Department's action was contrary to constitutional right depends on what its motivation was, which is a question of fact. At the administrative level, the Coxes pursued the theory that the Department was retaliating against them for speaking out, but the ALJ and JO were not convinced. We review their implicit finding that the Department's action was motivated by legitimate enforcement concerns under the same substantial evidence standard as other findings of fact.

The Coxes cite as evidence that the Department retaliated against them: (1) the ALJ's mention of Mr. Cox's abusive remarks to the APHIS inspector in his opinion, which was incorporated in the opinion of the JO; and (2) the testimony given at the hearing by two APHIS inspectors, who discussed the content and impact of the Coxes' mailings. One of them also recommended that a severe sanction be imposed.

We note first that APHIS did not begin investigating the Coxes because of their letters. APHIS had already received complaints and started investigating well before the first newsletter was sent out. Second, the sanctions imposed were fully justified by the Coxes' violations of the AWA. The Coxes have not shown that they were punished for what they said rather than for what they did. That the ALJ quoted Mr. Cox's abusive remarks to the APHIS inspector does not prove otherwise. The quotation serves to emphasize the willfulness of the Coxes'...