Moore v. Madigan

• Citation: 789 F. Supp. 1479
• Decision Date: 30 March 1992
• Docket Number: No. 91-0029-CV-W-2.,91-0029-CV-W-2.
• Parties: Jackie MOORE, individually and as the operator of Joplin Regional Stockyards, et al., Plaintiffs, v. Edward MADIGAN, Secretary of the United States Department of Agriculture, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

789 F. Supp. 1479

Jackie MOORE, individually and as the operator of Joplin Regional Stockyards, et al., Plaintiffs, v. Edward MADIGAN, Secretary of the United States Department of Agriculture, et al., Defendants.

No. 91-0029-CV-W-2.

United States District Court, W.D. Missouri, W.D.

March 30, 1992.

COPYRIGHT MATERIAL OMITTED

John L. Williams, Fields, Brown, Williams & Clark, Kansas City, Mo.

Dorothy Lewis, Kansas City, Kan.

MEMORANDUM OPINION AND ORDER

GAITAN, District Judge.

This case is an appeal from an administrative agency decision before the Animal and Plant Health Inspection Service of the United States Department of Agriculture (USDA). Plaintiff seeks to enjoin the USDA decision to withdraw plaintiff's status as a "specifically approved stockyard" for a period of five years pursuant to Title 9, Code of Federal Regulations § 78.44 (1991). Pending before this Court are cross-motions for summary judgment.¹ Jurisdiction for this case is proper under 28 U.S.C. § 1331.

I. THE FACTS

In 1903, Congress enacted the Cattle Contagious Diseases Act for the purpose of preventing the introduction and dissemination of contagious diseases during the transportation of livestock. The Act was codified in 21 U.S.C. §§ 101-105, 111-113, and 120-128 (1972 & Supp.1991). Pursuant to 21 U.S.C. § 111, Congress gave the Secretary of Agriculture authority to make regulations and take measures which effectuate the purpose of the Act. Pursuant to this authority, the Secretary promulgated 9 C.F.R. § 78.44 (1991), which designates and controls the operation of "specifically approved stockyards."

A "specifically approved stockyard" is defined as the "premises where cattle or bison are assembled for sale or sale purposes and which meet the standards set forth in 78.44 and are approved by the Deputy Administrator." 9 C.F.R. § 78.1 (1991). In order to obtain the status as a "specifically approved stockyard," the operator of the stockyard must execute an "agreement" set forth in either 9 C.F.R. § 78.44(c) or (d), and the operator must maintain and operate the stockyard in accordance with the standards specified in the agreement. 9 C.F.R. § 78.44(a).² Consequently, if the operator violates the terms of the agreement, the Deputy Administrator is given the authority to withdraw the status as a "specifically approved stockyard" upon written notice of the violations. 9 C.F.R. § 78.44(b)(2).³ The regulation further provides that upon request the operator will be afforded an "opportunity for a hearing," and that the hearing will be conducted "in accordance with the rules of practice which shall be adopted for the proceeding." 9 C.F.R. § 78.44(b)(2).

Plaintiff Jackie Moore is the operator of the Joplin Regional Stockyards located in Joplin, Mo. The Stockyard qualified for operation as a "specifically approved stockyard" on April 13, 1987. On October 13, 1988 and May 18, 1989, inspections were conducted by the USDA at the Stockyard. In both inspection reports, the Stockyard was found to be in violation of the terms of the agreement. Specifically, the reports indicated that plaintiff failed to maintain the identity of cattle that were sold in the Stockyard, and that the Stockyard was not maintained in a sanitary condition.

On September 15, 1989, the USDA sent plaintiff a written notice indicating that the "specifically approved stockyard" status would be withdrawn. Plaintiff received a copy of the rules of practice which were adopted for the proceedings. The adopted rules of practice provided for an informal hearing. On June 25 and 26, 1990, the informal hearing was held before Frank Tang, a hearing officer and employee of the USDA. On November 7, 1990, Mr. Tang issued Findings of Fact and Conclusions which indicated that plaintiff was in violation of the terms of the agreement. Based upon these findings, the Deputy Administrator issued an order on December 10, 1990 withdrawing plaintiff's "specifically approved stockyard" status for a period of five years.

Plaintiff filed the present action seeking to enjoin the USDA's decision to withdraw plaintiff's "specifically approved stockyard" status. Pending before this court is plaintiff's motion for summary judgment, defendant's cross-motion for summary judgment, defendant's motion to suspend local rule 15, and defendant's motion to strike. The court will address the cross-motions for summary judgment first.

II. DISCUSSION

According to Rule 56(c), Fed.R.Civ.P., summary judgment shall be rendered if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The moving party bears this burden of proof. Aetna Life Insurance Co. v. Great National Corp., 818 F.2d 19, 20 (8th Cir.1987). If the moving party meets the initial burden, then the nonmoving party is required to go beyond the pleadings, etc. and designate specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In reviewing the motion for summary judgment, the court must view the facts in the light most favorable to the adverse party and allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); U.S. v. Conservation Chemical Co., 619 F.Supp. 162, 179-80 (W.D.Mo.1985).

A. Informal v. Formal Hearing Procedures

1. 9 C.F.R. § 78.44 and 7 C.F.R. § 1.131

Plaintiff filed the motion for summary judgment on the central issue that the USDA erred in adopting informal hearing procedures under 9 C.F.R. § 78.44, instead of the uniform rules of practice for formal adjudicatory proceedings set forth 7 C.F.R. § 1.131 et seq. (1991).⁴ Plaintiff claims that the USDA was required by 7 C.F.R. § 1.131 to apply the uniform rules of practice. Plaintiff argues that the USDA's failure to apply the uniform rules of practice violated case precedent, and was inconsistent with the USDA's purpose in establishing the uniform rules of practice.

By attacking the USDA's decision to adopt informal procedures for the hearing, plaintiff questions the USDA's interpretation and construction of its own regulations. Although an agency's interpretation of its governing statute is a question of law which is generally subject to de novo review, an agency's interpretation of its own regulations imposes a more stringent standard of judicial review. See City of St. Louis v. Dept. of Transportation, 936 F.2d 1528, 1534 n. 1 (8th Cir.1991) (greater deference is given to an agency's interpretation of its own rules than of an agency's interpretation of its governing statutes); Jones v. Federal Deposit Insurance Corp., 748 F.2d 1400, 1405 (10th Cir.1984) (court must give deference to the construction of a regulation by the agency that is charged with administering the regulation). In the Supreme Court decision of Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945), the Court stated that:

when a court is called upon to construe administrative regulations the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.

Upon review of the language in 9 C.F.R. § 78.44 and 7 C.F.R. § 1.131, the Court does not find that the USDA's construction of these regulations is plainly erroneous or inconsistent. Title 7, C.F.R. § 1.131 states that

(a) The rules of practice in this subpart shall be applicable to all adjudicatory proceedings under the statutory provisions listed below as those provisions have been or may be amended from time to time ...

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Act of February 2, 1903, commonly known as the Cattle Contagious Diseases Act of 1903, section 3, as amended (21 U.S.C. 122).

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(b) Adjudicatory proceedings under the regulations promulgated under the Animal Quarantine and Related Laws (21 U.S.C. 111 et seq.) for the suspension or revocation of accreditation of veterinarians (9 CFR Parts 160, 161).

Plaintiff contends that because this case was brought under the Cattle Contagious Diseases Act, 21 U.S.C. § 111, defendant was required by 7 C.F.R. § 1.131 to apply the uniform rules of practice. Although 7 C.F.R. § 1.131 refers to two sections of the Cattle Contagious Diseases Act, neither of these sections were applicable in the present case. The USDA specifically limited the applicability of the uniform rules of practice to only those proceeding under the Cattle Contagious Diseases Act which impose criminal or civil penalties, or involve veterinarian accreditation. The proceeding to revoke a stockyard's "specifically approved stockyard" status does not fall within any of those categories.

Furthermore, the USDA's decision not to apply the uniform rules of practice in this case is not inconsistent with the language in 9 C.F.R. § 78.44. Section 78.44(b)(2) expressly states that the agency may adopt their own procedures to be followed in proceedings to withdraw a "specifically approved stockyard" status. It is clear that this language does not require the agency to apply the uniform rules of practice.

Plaintiff attempts to uncover an inconsistent practice by the USDA by citing several different USDA administrative adjudications which were brought under 21 U.S.C. § 111, and which apparently applied the uniform rules of practice in 7 C.F.R. § 1.131.⁵ However, these cases do not offer proof of irregularity in the USDA's decision-making. None of the cases cited specifically involve the regulation at issue in this case, 9 C.F.R. § 78.44. More importantly, the USDA imposed civil penalties in those cases presumably under 21 U.S.C. § 122, which requires the application of the uniform rules of practice under 7 C.F.R. § 1.131.

This...