Lesser v. Espy

• Decision Date: 30 August 1994
• Docket Number: No. 93-2826,93-2826
• Citation: 34 F.3d 1301
• Parties: Craig LESSER and Marilyn S. Lesser, Doing Business As LSR Industries, Inc., Petitioners, v. Michael ESPY, Secretary of Agriculture, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1301

34 F.3d 1301

Craig LESSER and Marilyn S. Lesser, Doing Business As LSR Industries, Inc., Petitioners, v. Michael ESPY, Secretary of Agriculture, Respondent.

No. 93-2826.

United States Court of Appeals Seventh Circuit.

Argued April 7, 1994.

Decided Aug. 30, 1994.

Curry First (argued), First, Blondis, Albrecht, Bangert & Novotnak, S.C., Milwaukee, WI, for petitioners.

Margaret M. Breinholt, Raymond Fullerton, Dept. of Agriculture, Office of the Gen. Counsel, Stephen M. Reilly (argued), U.S. Dept. of Agriculture, Office of Gen. Counsel, Washington, DC, for respondent.

Before FLAUM and ROVNER, Circuit Judges, and CRABB, District Judge. ^*

FLAUM, Circuit Judge.

Congress enacted the Animal Welfare Act, 7 U.S.C. Secs. 2131-2159, to expand the regulation of animals used in scientific research. 7 U.S.C. Sec. 2131(1). The Act authorizes the Secretary of Agriculture to promulgate standards that govern the handling, care, treatment, and transportation of such animals. 7 U.S.C. Sec. 2143. The Act also empowers the Secretary to issue licenses to those who deal in such animals. 7 U.S.C. Sec. 2133. To facilitate compliance with the Act (and the standards promulgated thereunder), agents of the Secretary are authorized to inspect each dealer's facilities, animals, and records concerning the transportation, receiving, handling, and delivery of the animals. 7 U.S.C. Sec. 2146(a). No search warrant or other process is mentioned under the Act. If the Secretary finds that the Act was violated or that his standards were not complied with, he may, after notice and an opportunity for a hearing, suspend or revoke the dealer's license, 7 U.S.C. Sec. 2149(a), and assess a civil penalty of as much as $2500 per day for each day of each violation. 7 U.S.C. Sec. 2149(b).

The petitioners, Craig and Marilyn Lesser of Union Grove, Wisconsin, are licensed dealers of long-eared, short-tailed lagomorphs with long hind legs--better known as rabbits. They breed and sell from 15,000 to 20,000 of these creatures each year to research institutions across the United States. In October 1990, the Administrator of the Animal and Plant Health Inspection Service (APHIS) charged the Lessers with failing to satisfy various standards and with unlawfully refusing to allow inspections of their rabbitry on five occasions between September 1989 and August 1990. An Administrative Law Judge (ALJ) found that numerous standards with which the Lessers had not complied and that the Lessers' refusal to permit inspections of their rabbitry constituted a violation of the Act. He imposed a civil penalty of $9250 and suspended the Lessers' license "for 30 days and thereafter until [their] facility is found to be in compliance with the Act and the regulations and standards thereunder."

The Lessers appealed the ALJ's decision to the Judicial Officer--the individual to whom the Secretary has delegated his authority to act as the final deciding officer for the Department of Agriculture. 7 C.F.R. Sec. 2.35(a). The Judicial Officer affirmed the ALJ's decision and increased the $9250 penalty by $500. The Lessers then petitioned this court for review of the Judicial Officer's decision. 7 U.S.C. Sec. 2149(c). They claim that, in inspecting and attempting to inspect their rabbitry without a warrant, the APHIS violated their right guaranteed by the Fourth Amendment to be free from unreasonable searches, and that the sanction imposed by the Secretary is excessive. After due consideration we deny the petition for review.

I

Craig Lesser started the rabbitry, LSR Industries, as a teenager in 1974. Through LSR the Lessers sell what is known in the industry as "clean" rabbits which are to be used in sensitive laboratory research. LSR's customers demand that it supply healthy, disease-free rabbits lest their research suffer. The Lessers apparently had no problems with customers or even APHIS inspectors until 1989 when a new APHIS veterinarian, Elizabeth Goldentyer, was appointed to inspect facilities in their area. The inspector prior to Goldentyer, Donald Leonard, had conducted inspections of the Lesser rabbitry since 1976 and had been refused inspection by Craig Lesser only on one occasion on which Leonard was wearing soiled coveralls. Leonard's supervisor, A.R. McGlaughlin, subsequently admonished Leonard that he was required to wear a separate pair of clean overalls for each inspection, because soiled overalls could endanger the rabbits by introducing a sickness into Lesser's disease-free breeding colony.

The outgoing inspector, Leonard, reported that the Lessers maintained a good facility and that they usually corrected any deficiencies that he found. Nevertheless, a deficiency reported in September 1986--small cracks in the floor and unsealed wood in the interior beams--had not been corrected at the time of Leonard's last inspection in February 1989. In May 1989, Goldentyer, the new inspector, visited the Lesser rabbitry, but apparently was unable to cultivate the same working relationship with the Lessers as Leonard. During the first inspection Marilyn Lesser was present at the facility and gave her consent for Goldentyer to inspect. Although Goldentyer found the animals to be healthy, she also noted the following minor infractions: (1) some cages were less than the minimum size for the rabbits, (2) a marginal build-up of animal waste had developed under some of the cages, (3) one cleaning scoop was not working properly, (4) one bag of rabbit food was left open, (5) the lighting was too dim for the rabbits' comfort, and (6) some of the cages also had an apparent build-up of rabbit hair and waste pellets in the vents. Goldentyer's careful inspection also noted that the small cracks in the floor and the interior wood beams were still not fixed. Goldentyer informed the Lessers that she would return to monitor their compliance.

As promised, Goldentyer returned to monitor the Lesser rabbitry four more times between September 1989 and May 1990. While no inspections took place during this period, a seemingly antagonistic relationship developed between Goldentyer and the Lessers. On September 17, 1989, Marilyn Lesser refused inspection after telephoning Craig Lesser, who was out of town. Goldentyer returned on December 14, 1989, and was told by an employee of the rabbitry that the Lessers were out of town. The employee said that she was not authorized to allow an inspection. The next two attempted inspections took place on February 20 and May 4, 1990. Marilyn Lesser was present on both occasions, but refused to allow an inspection because her husband, who was out of town, told her that he was to be present during inspections.

In January 1990, Craig Lesser had written a letter to Franklin Kriewald, an APHIS supervisor, in which he stated that the rabbitry could be inspected any time that he was present and that because he doubted Goldentyer's objectivity Lesser was looking for a manager to supervise the inspections when Lesser could not be present. Lesser also requested in the letter that inspectors not inspect his facility within 72 hours after visiting another animal facility because of his concern about disease transmissions. Kriewald replied by letter that inspectors had the authority to conduct unannounced, warrantless searches and that the refusal to allow an inspection would violate the Animal Welfare Act and would be grounds for prosecution.

On August 24, 1990, Goldentyer and Ellen Magid, another inspector, showed up at the Lesser rabbitry to conduct an inspection. Craig Lesser was present and met with them in his office. Lesser began the meeting by asking Goldentyer where she and her co-inspector had been that day and the types of facilities that they had inspected. Goldentyer would only confirm that they had not inspected any rabbits in the previous few days and that she planned to take what she considered to be reasonable precaution to prevent the transmission of disease. While Lesser testified that he had agreed to allow an inspection, he also insisted that for fear of disease transmission no one, except himself, would actually handle the animals. Lesser also refused to grant Goldentyer permission to enter certain parts of the property which he felt were unnecessary for the inspection (LSR is located on the same piece of land as the Lessers' home residence perhaps causing some confusion as to what is business and what is personal). Finally, demonstrating his apparent doubt of Goldentyer's lack of objectivity, Lesser demanded that the inspector not "write down the picky problems." This exchange between Goldentyer and Lesser apparently became heated. Goldentyer responded that she could not conduct an inspection within the limitations that Lesser wanted to impose and that she could not allow Lesser to determine what she did and did not record in her inspection report. Goldentyer left without conducting an inspection. The complaint charging the Lessers with violating the Animal Welfare Act and the Secretary's standards ensued.

Craig Lesser testified at the hearing before the ALJ that the deficiencies noted by Goldentyer had been or were to be corrected. He further testified that he had told his wife not to allow any unannounced inspections when he was not at the facility because of his concern about disease transmission. As for his conduct at the August 1990 meeting, Lesser stated that Goldentyer refused to wear the protective clothing he provided to all visitors. Both Craig and Marilyn Lesser said that they would not refuse to allow inspections in the future.

The total civil penalty of $9250 imposed by the ALJ was comprised of a penalty of $250 for the lighting violation cited by Goldentyer; $500 for the cage-size violation cited by Goldentyer; $1000 for the cracks in the floor and unsealed wood cited by Leonard and Goldentyer; $500 for the Lessers' first refusal to allow an inspection; $1000 for the second; $1500 for the third; $2000 for the fourth; and...