that this violation was not proven. However, I must quibble with the ALJ's inclusion of the "chewed wood" alleged violation under the "excessive" requirement of 9 C.F.R. § 3.1(c)(1)(i). Clearly, worn or soiled housing surfaces are covered by section 3.1(c)(2) of the Standards; and, the Complaint states that housing surfaces "were not maintained on a regular basis," as required by 9 C.F.R. § 3.1(c)(2) (Compl. ¶ IV(2)). A reading of 9 C.F.R. § 3.1(c)(2) reveals no "excessive" requirement. Despite this discrepancy, however, there is still not sufficient record evidence to reverse the ALJ. In fact, the entirety of the evidence is from the July 12, 1994, Inspection Report, which merely states that chewed wooden frames and rotted wood "shall be repaired when worn and soiled." (CX 223 at 2.) These words do not actually state a violation, which violation must be otherwise understood from the marking of the section 3.1 box on line 12 on page 1 of the Inspection Form, and the inclusion of the words "[correct by 8/12/94" on page 2 of the Inspection Form (CX 223 at 1-2). I agree with the ALJ that the violation of 9 C.F.R. § 3.1(c)(2) was not proven. I also concur with the ALJ's conclusion that Respondent violated 9 C.F.R. § 3.1(f). Respondent does not contest that there was a poorly drained area near one of the dog runs, described as a "methal" (Tr. 247). Although Respondent promptly covered the area with a cement sidewalk, the ALJ is correct that it is still a violation (Tr. 248). Paragraph V of the Complaint alleges violations of the Regulations and Standards governing the handling and care of dogs during transportation, as follows: V A. On August 17, 1994, [Respondent handled an animal in a manner which caused trauma, behavioral stress, physical harm, and unnecessary discomfort to the animal, in willful violation of sections 2.100(a) and 2.131(a)(1) of the [Regulations (9 C.F.R. §§ 2.100(a) and 2.131(a)(1)). B. On August 17, 1994, APHIS inspected a ground transportation shipment of dogs by the [Respondent and found the following willful violations of section 2.100(a) of the [Regulations (9 C.F.R. § 2.100(a) and the [Standards specified below: 1. Primary enclosures were stacked in a manner that may reasonably be expected to result in their falling (9 C.F.R. § 3.19(b)(2); and 2. The interior of the animal cargo space was not kept clean 57 Agric. Dec. 127 (9 C.F.R. § 3.15(g)). The file relevant to this proceeding contains an APHIS Form 7008 Inspection Report filed by a Veterinary Medical Officer (CX 224), that Veterinary Medical Officer's Affidavit (CX 225), and photographs (CX 226) in support of the alleged violations in paragraph V. However, these exhibits were not admitted into evidence. The transcript is clear that the ALJ and the parties expected that an additional evidentiary hearing would be arranged, as follows: MR. ERTMAN: Your Honor, subject to the possibility of a hearing session for testimony by telephone, if there is one, we move that Dr. Garland's inspection and her affidavit and the photographs marked on the back, being Exhibits 24, 25 and 26 be received. I'm sorry, 224, 225 and 226. (The documents were identified as Complainant Exhibits 224, 225 and 226.) JUDGE HUNT: Did you give me copies of these? MR. ERTMAN: Yes, Your Honor. JUDGE HUNT: I guess they got mixed up. Oh, wait a second. Mr. Gilder? MR. GILDER: Your Honor, our position as far as Dr. Garland's report is that we two witnesses that we had wanted to take telephonic depositions of before the hearings were closed. One was Dr. Steven Young and the other was Michael Darwin. They're both in California also. And we would not object to Dr. Garland's reports if we were permitted to use Dr. Young and Michael Darwin in [sic] impeach part of the reports. So, I understand Mr. Ertman may want to -- if the Court allows us to take those telephonic depositions, to also take the telephonic deposition of Dr. Garland. But, we would object to the report unless we're able to get in some impeachment testimony. JUDGE HUNT: Would that be the burden of your two witnesses, just concerning Dr. Garland's report? MR. GILDER: Yes. JUDGE HUNT: Response to her report? MR. GILDER: Yes, sir, Your Honor. Essentially that's what it would be. They might have testimony that would be favorable to Mr. Baird, but essentially it would be for the purpose of refuting some of the things contained in Dr. Garland's report. JUDGE HUNT: I think under the circumstance I'm not going to admit 224, 225 and 226. I think they should all be subject to subsequent hearings since it is disputed and he says he'll respond to it. So, we could do it a number of ways. One would be a subsequent telephone hearing. We could do it separately. I mean, have Dr. Garland, get her testimony and then have another telephone hearing, or three if necessary to take the testimony of the witnesses. That is if you're moving for the admission of those documents, I would reserve on ruling on their admissibility until we have her testimony. - MR. ERTMAN: Your Honor, I think this is something we could probably arrange I'm not sure what your schedule is in the next couple of weeks. If you're in Washington, it's unlikely that the whole thing would take more than a couple of hours. JUDGE HUNT: I don't have any hearings next week. I'll be out the following three weeks. So, if we could do it sometime next week except Monday, or it would have to be about a month from now. I'm flexible, so if you want to work it out and let me know what days except Monday of next week if you want to do it next week. Just get together, agree and let me know. MR. ERTMAN: All right, sir. JUDGE HUNT: I can virtually do it any time or I can work it in. Let's put it that way. Why don't you do that. You don't have to look now. Get together and then just let me know what day next week. I'd like to do it all on one day if we could, preferably one half day if we can do it. If you can't, then I'll work with you. Just leave that for the moment and I'll wait to hear from you gentlemen as to your schedule. 57 Agric. Dec. 127 MR. GILDER: Thank you, Your Honor. JUDGE HUNT: All right. So, on 224, 225 and 226, they've been identified and they've been offered. I'll wait to rule on the admissibility later. MR. ERTMAN: Thank you. Subject to that, the Complainant rests. Tr. 161-64. Notwithstanding these plans for an additional hearing, the record does not contain additional hearings on the violations alleged in paragraph V of the Complaint, and Complainant's exhibits covering these alleged violations were never admitted. No mention of paragraph V is made by the ALJ or Complainant after the above exchange at the hearing. Therefore, Complainant has not proven the violations in paragraphs IV(1), IV(2), and V of the Complaint. Respondent has no violations previous to those alleged in paragraphs II, III, and IV(3) of the Complaint. Dr. Gaj performed a routine inspection on February 21, 1995, and Respondent's facility was found to be in compliance (see Amended Answer, Ex. B, Animal Care Inspection Report for routine inspection of February 21, 1995). Moreover, Dr. Gaj's routine inspection report of February 21, 1995, lists the date of the last inspection as November 21, 1994, but there are listed on the February 21, 1995, inspection report no non-compliant items to have been corrected from the last inspection. C. Complainant's Appeal. Complainant raises two major issues on appeal, arguing that the ALJ erred both by not finding Respondent's violations willful, and by understating Respondent's recordkeeping violations, as follows: I. THE ALJ ERRED IN FINDING THAT THE VIOLATIONS WERE NOT WILLFUL. A. THE ALJ ERRED IN FINDING THAT THE VIOLATIONS OF B. THE ALJ ERRED IN FINDING THAT THE RESPONDENT'S II. THE ALJ ERRED IN UNDERSTATING THE NUMBER OF RECORDKEEPING VIOLATIONS. Complainant's Appeal at 2, 4, 15. I agree with Complainant's Appeal, paragraph I, that the ALJ erred in not finding Respondent's violations willful, both as to the recordkeeping violations and as to Respondent's impermissible acquisition of random source dogs. An action is willful under the Administrative Procedure Act (5 U.S.C. § 558(c)) if a prohibited act is done intentionally, irrespective of evil intent, or done with careless disregard of statutory requirements. Concerning the recordkeeping 'Toney v. Glickman, 101 F.3d 1236, 1241 (8th Cir. 1996); Cox v. United States Dep't of Agric., 925 F.2d 1102, 1105 (8th Cir.), cert. denied, 502 U.S. 860 (1991); Finer Foods Sales Co. v. Block, 708 F.2d 774, 777-78 (D.C. Cir. 1983); American Fruit Purveyors, Inc. v. United States, 630 F.2d 370, 374 (5th Cir. 1980) (per curiam), cert. denied, 450 U.S. 997 (1981); George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 994 (2d Cir.) cert. denied, 419 U.S. 830 (1974); Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961); Eastern Produce Co. v. Benson, 278 F.2d 606, 609 (3d Cir. 1960); In re Peter A. Lang, 57 Agric. Dec. slip op. at 31 (Jan. 13, 1998); In re Samuel Zimmerman, 56 Agric. Dec. slip op. at 43 n.4 (Nov. 6, 1997); In re Fred Hodgins, 56 Agric. Dec. slip op. at 143-44 (July 11, 1997), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 476 (1997), appeal docketed, No. 97-3414 (3d Cir. Aug. 4, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 255-56 (1997), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 138 (1996); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1284 (1988); In re David Sabo, 47 Agric. Dec. 549, 554 (1988). See also Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 187 n.5 (1973) ("Wilfully' could refer to either intentional conduct or conduct that was merely careless or negligent."); United States v. Illinois Central R.R., 303 U.S. 239, 242-43 (1938) ("In statutes denouncing offenses involving turpitude, `willfully' is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Our opinion in United States v. Murdock, 290 U.S. 389, 394, shows that it often denotes that which is intentional, or knowing, or voluntary, as distinguished from accidental,' and that it is employed to characterize `conduct marked by careless disregard whether or not one has the right so to act."") The United States Court of Appeals for the Fourth Circuit and the United States Court of Appeals for (continued...) |