Robinson v. U.S., No. 83-1218

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore SETH, Chief Judge, and LOGAN and SEYMOUR; LOGAN
Citation718 F.2d 336
PartiesRichard "Dick" ROBINSON, Petitioner, v. UNITED STATES of America, Respondent.
Docket NumberNo. 83-1218
Decision Date08 September 1983

Page 336

718 F.2d 336
Richard "Dick" ROBINSON, Petitioner,
v.
UNITED STATES of America, Respondent.
No. 83-1218.
United States Court of Appeals,
Tenth Circuit.
Sept. 8, 1983.

Page 337

John S. Adams of Gustin, Adams, Kasting & Liapis, Salt Lake City, Utah, for petitioner.

James Michael Kelly, Associate Gen. Counsel, Raymond W. Fullerton, Asst. Gen. Counsel, and Aaron B. Kahn, Attorney, U.S. Dept. of Agriculture, Washington, D.C., for respondent.

Before SETH, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

Richard "Dick" Robinson was charged by the Department of Agriculture with violating the Animal Welfare Act of 1970 (AWA) Sec. 4, 7 U.S.C. Sec. 2134, for transporting a wolf from Utah to California for exhibition on television without a license. Robinson exhibited the wolf on several television programs to promote his most recent book about his exploits as an animal trainer and producer of animal films. Respondent once held a valid exhibitor's license under the AWA, but the license was revoked in 1979 when Robinson failed to comply with the terms of a consent decision requiring him to install more adequate plywood cover for his bear cages.

After a hearing, the Administrative Law Judge (ALJ) for the Department of Agriculture issued a cease and desist order to prevent Robinson from further illegally transporting and exhibiting his animals and assessed a $500 civil penalty against him. The Judicial Officer of the Department of Agriculture affirmed the order of the ALJ on appeal. Robinson's petition for review in this Court raises two issues: First, did the ALJ improperly preclude Robinson's affirmative defenses that the AWA is unconstitutional and that Robinson is not subject to the Act? Second, was the imposition of a $500 fine excessive and an abuse of discretion under the circumstances of this case?

I

Although Robinson claims on appeal that the ALJ effectively precluded him from attacking the constitutionality of the AWA and the applicability of the AWA to his activities, the record clearly indicates

Page 338

that Robinson in fact had numerous opportunities to present his defenses. Robinson bases his preclusion argument on a prehearing telephone conference between the ALJ, counsel for the Department of Agriculture, and Robinson, who at the time represented himself. During that conversation Robinson admitted transporting the wolf from Utah to California for exhibition on the television shows. With this admission in mind, at the conclusion of the telephone conference the ALJ issued an order entitled "Summary of Telephone Conference," declaring that the only issue at trial "on which evidence will be taken will be what sanction, if any, should be imposed upon [Robinson]." Although Robinson thereafter filed other written motions, he made no objection or comments concerning the preclusion of his affirmative defenses until he was actually at the hearing. 1 After some discussion at the beginning of the hearing, the ALJ clarified the situation when he stated,

"That [the affirmative defenses] won't be a matter of evidence. That will be a matter of briefing and argument. You should feel free to submit briefs and argument on that. If you have any problems, if there is some problem about some evidence you think you should be entitled to bring forward, we will discuss it."

R.II, 14.

Even if the ALJ had refused to admit Robinson's evidence, he still could have made the evidence a part of the record through an offer of proof. See 7 C.F.R. Sec. 1.141(g)(7). Further, the Judicial Officer could have decided all issues de novo under the Administrative Procedure Act, 5 U.S.C. Sec. 557(b), when it...

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16 practice notes
  • Knapp v. U.S. Dep't of Agric., No. 14-60002
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 31, 2015
    ...Officer, in making factual findings, may substitute its judgment for that of the ALJ. See 5 U.S.C. § 557(b); Robinson v. United States, 718 F.2d 336, 338 (10th Cir. 1983); Mattes v. United States, 721 F.2d 1125, 1129 (7th Cir. 1983). However, "[i]n cases where the Secretary of an agency doe......
  • Knapp v. U.S. Dep't of Agric., No. 14–60002.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 31, 2015
    ...Officer, in making factual findings, may substitute its judgment for that of the ALJ. See 5 U.S.C. § 557(b) ; Robinson v. United States, 718 F.2d 336, 338 (10th Cir.1983) ; Mattes v. United States, 721 F.2d 1125, 1129 (7th Cir.1983). However, “[i]n cases where the Secretary of an agency doe......
  • Johnson v. Board of Governors of Registered Dentists of State of Okl., No. 82371
    • United States
    • Supreme Court of Oklahoma
    • March 19, 1996
    ...supported by the facts, the decision as to what discipline is proper is within the discretion of the Board. See Robinson v. United States, 718 F.2d 336 (10th Dr. Johnson also argues due process requires the Board to enact rules establishing disciplinary guidelines that are uniform. The Unit......
  • Cohon v. State Dep't of Health, No. CIV–08–1115 LAM/RHS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 2, 2009
    ...did not have the authority to declare the Mi Via Waiver program statute or regulations unconstitutional. See Robinson v. United States, 718 F.2d 336, 338 (10th Cir.1983) (explaining that an administrative agency “may provide its views about [its governing] statute ..., [but] the agency may ......
  • Request a trial to view additional results
16 cases
  • Knapp v. U.S. Dep't of Agric., No. 14-60002
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 31, 2015
    ...Officer, in making factual findings, may substitute its judgment for that of the ALJ. See 5 U.S.C. § 557(b); Robinson v. United States, 718 F.2d 336, 338 (10th Cir. 1983); Mattes v. United States, 721 F.2d 1125, 1129 (7th Cir. 1983). However, "[i]n cases where the Secretary of an agency doe......
  • Knapp v. U.S. Dep't of Agric., No. 14–60002.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 31, 2015
    ...Officer, in making factual findings, may substitute its judgment for that of the ALJ. See 5 U.S.C. § 557(b) ; Robinson v. United States, 718 F.2d 336, 338 (10th Cir.1983) ; Mattes v. United States, 721 F.2d 1125, 1129 (7th Cir.1983). However, “[i]n cases where the Secretary of an agency doe......
  • Johnson v. Board of Governors of Registered Dentists of State of Okl., No. 82371
    • United States
    • Supreme Court of Oklahoma
    • March 19, 1996
    ...supported by the facts, the decision as to what discipline is proper is within the discretion of the Board. See Robinson v. United States, 718 F.2d 336 (10th Dr. Johnson also argues due process requires the Board to enact rules establishing disciplinary guidelines that are uniform. The Unit......
  • Cohon v. State Dep't of Health, No. CIV–08–1115 LAM/RHS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • December 2, 2009
    ...did not have the authority to declare the Mi Via Waiver program statute or regulations unconstitutional. See Robinson v. United States, 718 F.2d 336, 338 (10th Cir.1983) (explaining that an administrative agency “may provide its views about [its governing] statute ..., [but] the agency may ......
  • Request a trial to view additional results

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