Pearson v. United States Dep't Of Agriculture, 09-4114

Decision Date17 February 2011
Docket NumberNo. 09-4114,09-4114
PartiesLORENZO PEARSON, dba L&L Exotic Animal Farm, Petitioner, v. UNITED STATES DEPARTMENT OF AGRICULTURE; TOM VILSACK, Secretary of Agriculture, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON PETITION FOR REVIEW OF AN ORDER OF THE SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE

BEFORE: SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.

CLAY, Circuit Judge. Petitioner Lorenzo Pearson petitions for review of the decision and order of the Secretary of the United States Department of Agriculture, terminating his license to own and exhibit wild animals, issuing a cease and desist order, and imposing civil sanctions in the amount of $93,975, for alleged violations of the Animal Welfare Act, 7 U.S.C. §§ 2131-2159. For the reasons set forth below, the petition for review is DENIED.

BACKGROUND

Between 1985 and 2005, Petitioner Lorenzo Pearson1 was a licensed exhibitor under the Animal Welfare Act ("AWA"), 7 U.S.C. §§ 2131-2159, and proprietor of a business called L&L Exotic Animal Farm in Akron, Ohio. At the peak of his business, Petitioner was the caretaker for more than eighty-two animals, including lions, tigers, and bears, which he displayed at fairs and exhibits. Petitioner also successfully underwent periodic inspections and annually renewed his exhibitor's license.

However, beginning in May 1999, 2 employees of the Animal and Plant Health Inspection Service ("APHIS") cited Petitioner for a number of violations of the AWA and associated regulations. Between May 1999, when Petitioner was initially found to be non-compliant, and February 2006, Petitioner's facilities were inspected by APHIS officials more than twenty-five times and Petitioner was cited for more than 280 instances of non-compliance. These included minor infractions such as using a cage with incorrect dimensions, as well as larger infractions concerning drainage and sanitation at the facility, the quality of record keeping, the adequacy of food provided to the animals, and the adequacy of veterinary care.3

Although the record reveals that Petitioner corrected many infractions brought to his attention, some problems persisted across inspections, including inadequate sewage and sanitation, lack of potable water for animals, preparation of unwholesome food, and inadequate veterinary care. On June 12, 2002, following nearly a dozen inspections that revealed infractions, APHIS commenced administrative disciplinary proceedings against Petitioner. However, these proceedings stalled after the administrative law judge ("ALJ") assigned to the case became unavailable. Petitioner continued to operate his business and undergo periodic inspection.

In addition to repeated APHIS investigations, Petitioner became the subject of a state nuisance action brought by the Summit County Board of Health that resulted in the seizure of many of his animals. As scrutiny mounted, Petitioner's upkeep of his facilities and compliance with animal welfare regulations appears to have decreased. During a May 2005 visit, Dr. Albert Lewandowski, an APHIS inspector formerly employed by the Akron Zoo, described Petitioner's facilities as "squalid," and oversaw the seizure of seven of Petitioner's bears that remained without adequate food, water, or veterinary care despite a previous warning. In 2005, Petitioner was also cited for denying APHIS inspectors access to his facilities on two occasions, and for storing animals offsite in an attempt to evade inspection. On October 5, 2005, APHIS sent Petitioner a license termination letter that served to initiate the proceedings which form the basis of this appeal.

Procedural History

On June 14, 2002, following a dozen inspections that revealed infractions, disciplinary proceedings were commenced against Petitioner and a hearing was held September 24-25, 2003 before ALJ Leslie Holt. After APHIS and the United States Department of Agriculture ("Respondents") presented their case and had their witnesses cross-examined, ALJ Holt became unavailable and proceedings were stayed before Petitioner was able to present his defense. The case was later reassigned to ALJ Victor W. Palmer. Petitioner moved to have ALJ Palmer retry the case in its entirety, claiming that retrial was necessary to permit credibility assessments of Respondents' witnesses. This motion was denied. However, ALJ Palmer agreed to recall Respondents' witnesses for cross-examination. A hearing was initially scheduled for June 8-10, 2004, but proceedings were repeatedly pushed back due to scheduling conflicts from both parties.

On March 17, 2006, Respondents filed an amended complaint that covered infractions occurring after June 2002. Respondents' amended complaint also sought a cease and desist order, civil sanctions in the amount of $100,000, and permanent revocation of Petitioner's AWA license. A hearing was scheduled for June 20-23, 2006, and April 4, 2006 was designated as the parties' deadline to submit exhibits. However, Petitioner failed to submit exhibits by the deadline.

On May 23, 2006, Petitioner's home was destroyed in a fire, along with most of the documents, veterinary reports, financial records, and photographs pertaining to Petitioner's animal farm. Citing the fire damage, on June 15, 2006 Petitioner moved to continue the hearing and requested three additional months to prepare. This motion was denied on grounds that rescheduling posed an administrative inconvenience, destroyed evidence could not be replaced, and Petitioner could make his case using witness testimony. Petitioner renewed his request for a continuance at the start of his June 20, 2006 hearing, and then again in the middle of proceedings. Petitioner also sought to continue proceedings on the additional ground that a veterinarian who cared for severalof his animals had a scheduling conflict and would be unable to testify. This request was denied on grounds that Petitioner had been given adequate opportunity to assemble witnesses for trial.

In a opinion dated April 6, 2007, ALJ Palmer issued a cease and desist order and permanently revoked Petitioner's exhibitor's license on grounds that Petitioner repeatedly committed willful violations of the AWA. However, ALJ Palmer declined to impose civil sanctions—reasoning that permanent revocation would provide sufficient deterrence under the Act, such that fines and civil sanctions were unwarranted.

Petitioner appealed the ALJ's decision to the Secretary of the United States Department of Agriculture ("the Secretary") on July 23, 2007. On August 21, 2007, Respondents cross-appealed the ALJ's decision not to impose sanctions. On July 13, 2009, a judicial officer acting as a designee for the Secretary released a Decision and Order adopting the ALJ's determination that Petitioner repeatedly violated the AWA, as well as the ALJ's decision to deny Petitioner's motion for a continuance and retrial, and to revoke Petitioner's license. However, the judicial officer granted Respondents' cross-appeal, concluding that civil sanctions in the amount of $93,9754 wereappropriate in light of what he determined were Petitioner's 281 individual violations of the AWA and associated regulations. See In re Lorenza Pearson, d/b/a L&L Exotic Animal Farm, No. 02-0020, 2009 WL 2134028, at *30 (U.S.D.A. July 13, 2009).

In this timely petition for review, Petitioner challenges the Secretary's decision on procedural grounds, and asserts that substantial evidence does not support his determinations.

DISCUSSION
I. Standard of Review

"We review a decision of the U.S. Department of Agriculture under the Act only to determine whether the proper legal standards were employed and [whether] substantial evidence supports the decision." Derickson v. U.S. Dep't of Agric., 546 F.3d 335, 340 (6th Cir. 2008) (citing Gray v. U.S. Dep't of Agric., 39 F.3d 670, 675 (6th Cir. 1994) (internal quotation marks omitted). Substantial evidence is evidence that "a reasonable mind might accept as adequate to support a conclusion." Gray, 39 F.3d at 675 (citing Murphy v. Sec 'y of Health & Human Servs., 801 F.2d 182, 184 (6th Cir. 1986)). "The record, as a whole, is considered in determining the substantiality of evidence." Derickson, 546 F.3d at 340-41.

Because the judicial officer "acts as the final deciding officer in lieu of the Secretary in Department administrative proceedings," Utica Packing Co. v. Block, 781 F.2d 71, 72 (6th Cir. 1986), we limit our review to his decision. See also Marine Mammal Conservancy, Inc. v. U.S. Dep't of Agric., 134 F.3d 409, 410-411 (D.C. Cir. 1998) (judicial review is limited to "decisions of the judicial officer on appeal"). When a judicial officer disagrees with certain conclusions of the ALJ, "the standard does not change; the ALJ's findings are simply part of the record to be weighed against other evidence supporting the agency." Rowland v. U.S. Dep't of Agric., 43 F.3d 1112, 1114 (6th Cir. 1995) (internal citations and quotation marks omitted).

Finally, "when the issue is whether the agency followed the requisite legal procedure, our review is limited, but exacting." Coal. for Gov't Procurement v. Fed. Prison Industs., Inc., 365 F.3d 435, 457 (6th Cir. 2004). When an agency is accused of violating a statute, we examine de novo whether "statutorily prescribed procedures have been followed."Id. (citing Nat'l Res. Def. Council, Inc. v. Sec. & Exch. Comm'n, 606 F.2d 1031, 1045 (D.C. Cir. 1979)). Alternately, when an appeal concerns an agency's compliance with ambiguous procedural regulations, we consider only whether the agency's interpretation is "plainly erroneous or inconsistent." Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 474 (6th Cir. 2008).

II. Procedural Aspects of the Secretary's Decision
A. The Secretary's Decision Not to Retry Petitioner's Case

First, Petitioner argues that the Secretary erred by allowing ALJ Palmer to take over the proceedings for ALJ Holt instead...

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