Animal Welfare Act Decisions

• §2131 . Congressional statement of policy 
• §2132 . Definitions
• §2133 . Licensing of dealers and exhibitors
• §2134 . Valid license for dealers and exhibitors required
• §2135 . Time period for disposal of dogs or cats by dealers or exhibitors
• §2136 . Registration of research facilities, handlers, carriers and unlicensed exhibitors
• §2137 . Purchase of dogs or cats by research facilities prohibited except from authorized operators of auction sales and licensed dealers or exhibitors
• §2138 . Purchase of dogs or cats by United States Government facilities prohibited except from authorized operators of auction sales and licensed dealers or exhibitors
• §2139 . Principal-agent relationship established
• §2140 . Recordkeeping by dealers, exhibitors, research facilities, intermediate handlers, and carriers
• §2141 . Marking and identification of animals
• § 2142 . Humane standards and recordkeeping requirements at auction sales
• § 2143 . Standards and certification process for humane handling, care, treatment, and transportation of animals
• § 2144 . Humane standards for animals by United States Government facilities
• § 2145 . Consultation and cooperation with Federal, State, and local governmental bodies by Secretary of Agriculture
• § 2146 . Administration and enforcement by Secretary
• § 2147 . Inspection by legally constituted law enforcement
• § 2148 . Importation of live dogs
• § 2149 . Violations by licensees
• § 2150 . [Repealed]
• § 2151 . Rules and regulations
• § 2152 . Separability 
• § 2153 . Fees and authorization of appropriations
• § 2154 . Effective dates
• § 2155 . Annual report to the President of the Senate and the Speaker of the House of Representatives
• § 2156 . Animal fighting venture prohibition
• § 2157 . Release of trade secrets
• § 2158 . Protection of Pets
• § 2159 . Authority to apply for injunctions

§ 2131D  DECISIONS [§ 2131. Congressional statement of policy ]

1. Purpose

Private individuals and animal welfare groups who suffered no cognizable injuries due to medical research institution's treatment of experimental animals have no right to seek relief under 7 USCS § 2131 which was intended to insure humane treatment for research animals. International Primate Protection League v Institute for Behavioral Research, Inc. (1986, CA4 Md) 799 F2d 934, cert den (1987) 481 US 1004, 95 L Ed 2d 198, 107 S Ct 1624, reh den (1987) 482 US 909, 96 L Ed 2d 383, 107 S Ct 2492.

Animal Welfare Act (7 USCS §§ 2131 et seq.) was not intended to preempt or ban state and local legislation regulating wild animals. DeHart v Town of Austin (1994, CA7 Ind) 39 F3d 718.

The Animal Welfare Act does not provide a private cause of action. Zimmerman v. Wolff, 622 F.Supp.2d 240 (E.D. Pa. 2008)

2. Relation to state laws

State statute which prohibited importation of pets for resale from states with less stringent licensing laws and regulations for commercial pet dealers was not preempted by Animal Welfare Act of 1970, 7 USCS §§ 2131 et seq., given different purposes behind federal statute (preventing pet thievery and inhumane research) and state statute (public health), and clear expressions of Congressional intent to foster co-operation with state interests under Act found in 7 USCS § 2145 (d), and therefore there was no Congressional intent to ban remedial state legislation in field of interstate commerce in pets. Winkler v Colorado Dep't of Health (1977) 193 Colo 170, 564 P2d 107.

3. Educational requirements

Regulations promulgated pursuant to Animal Welfare Act, 7 USCS §§ 2131 et seq., pertaining to employee skill requirements at zoo, were drawn so as not to require any educational degrees; while some education might be necessary for some requirements, evidence did not establish that high school diploma was related or necessary to job requirements. Padilla v Stringer (1974, DC NM) 395 F Supp 495, 10 BNA FEP Cas 575, 9 CCH EPD P 10196, 19 FR Serv 2d 832.

4. Article Three Standing

While the district court found that impairment of a nonprofit organization’s animal-rights programs due to government agency inaction constituted an injury in fact, it granted the government agency’s motion to dismiss because the Animal Welfare Act (AWA)'s enforcement provision strongly suggested that its implementation was committed to agency discretion by law and because section 2143 of the AWA did not require the USDA to issue avian-specific animal-welfare standards. People for the Ethical Treatment of Animals, Inc. v. United States Department of Agriculture, 7 F.Supp.3d 1 (D.C. Cir. 2015)

Though animal rights advocacy organization was defending a rule, rather than challenging it, the district court found that certain impediments to the advocacy organization's activities constituted “concrete and demonstrable” injuries sufficient to confer standing. The court also found the organization would be permitted to intervene as of right. Associated Dog Clubs of New York State v. Vilsack, 44 F.Supp.3d 1 (D.D.C. 2014) 

[ §2131 Acts ] [ §2131 History ]

§ 2132D  DECISIONS [§ 2132. Definitions]

1. Constitutionality

Classification of "exhibitor" contained in 7 USCS § 2132 (h) does not infringe equal protection guaranty of Fifth Amendment's due process clause because it includes carnivals, circuses, zoos, and animal acts but excludes retail pet stores, country fairs, livestock shows, rodeos, and other exhibitions; constitutional call for equality of treatment does not requiring choosing between attacking every aspect of problem or not attacking problem at all. Haviland v Butz (1976) 177 US App DC 22, 543 F2d 169, 36 ALR Fed 615, cert den (1976) 429 US 832, 50 L Ed 2d 97, 97 S Ct 95.

2. "Exhibitor"

Regulation of Secretary of Agriculture which added "animal acts" to definition of "exhibitor" contained within 7 USCS § 2132 (h) was proper; listing of types of exhibitions in statutory text was intended to be but partial and illustrative; owner and operator of professional animal act in which dogs and ponies were featured was within regulatory compass of 7 USCS § 2132, therefore, action brought for judgment declaring that owner of such act was not subject to regulation was properly dismissed. Haviland v Butz (1976) 177 US App DC 22, 543 F2d 169, 36 ALR Fed 615, cert den (1976) 429 US 832, 50 L Ed 2d 97, 97 S Ct 95.

Individual is exhibitor even though he exhibits only one animal. In re Lloyd A. Good, Jr. (1990) 49 Ag Dec 156.

Individual who owned auto parts company, and who kept exotic animals on premises (allegedly as pets), was exhibitor for purposes of Act, even though economic benefit to him from exhibiting animals to public was de minimis, because individual's activities were in commerce. In re Ronnie Faircloth and JR's Auto & Parts, Inc. (1993) 52 Ag Dec 171.

3. "Research facility"

Company which produces antiserum for medical diagnostic tests by injecting rabbits and other live animals with antigens and then extracting their blood is research facility within meaning of Act. In re Lee Roach and Roach Laboratories, Inc. ( 1992) 51 Ag Dec 252.

The absence of any research, testing, or experimentation in the almost ten years since exhibitor registered as a research facility and its lack of adherence to the regulations refuted its assertion that it intended to conduct research with the animals. ZooCats, Inc. v. U.S. Dept. of Agriculture,  417 Fed.Appx. 378(5th Cir. 2011) 

4. "Person"

Individual and business entity in which individual owns stock or is partner are not same "person" for purposes of Animal Welfare Act (7 USCS §§ 2131 et seq.). Longhi v Animal & Plant Health Inspection Serv. (1999, CA6) 165 F3d 1057, 1999 FED App 27P.

5. "Dealer"

Company which produces antiserum for medical diagnostic tests by injecting rabbits and other live animals with antigens and then extracting their blood is dealer within meaning of Act. In re Lee Roach and Roach Laboratories, Inc. (1992) 51 Ag Dec 252.

5a. "Retail Pet Store"

With the increase of sales over the Internet, the Department of Agriculture, through the Animal and Plant Health Inspection Service (“APHIS”), issued a new rule that redefined “retail pet store” to include online pet stores. Several breeders argued that the agency exceeded its statutory authority in issuing the new rule. The Secretary for the Department of Agriculture moved for summary judgment. Since APHIS acted within its authority in promulgating the rule and otherwise complied with the requirements of the Administrative Procedures Act, the Court granted summary judgment for the agency. Associated Dog Clubs of New York State v. Vilsack, 44 F.Supp.3d 1 (D.D.C. 2014)

Membership organization filed a rulemaking petition with the Agriculture Department, urging a change in the regulatory definition of “retail pet store” so that residential operations would not be exempted. The District of Columbia Circuit Court found the regulation was a permissible construction of the statutory term “retail pet store." Doris Day Animal League v. Veneman, 315 F.3d 297, 301 (D.C. Cir. 2003)

6. "Animal"

Without an adequate discussion about why the Judicial Officer held aoudad, alpaca, and miniature donkeys were not “farm animals” exempt from the statute's licensing requirement, the Court of Appeals could not exercise judicial review. Knapp v. U.S. Department of Agriculture, 796 F.3d 445 (5th Cir. 2015)

A non-profit organization, a private firm and an individual, alleged that the defendants, the USDA and APHIS, violated the mandate of the Animal Welfare Act (AWA) by promulgating regulations that exclude birds, mice and rats from the definition of “animal” under the Act. The district court held that the AWA does not grant the USDA "unreviewable discretion" to determine what animals are covered under the AWA.  Alternatives Research & Development Foundation v. Glickman, D.D.C.2000, 101 F.Supp.2d 7 (D.D.C. 2000)

People for the Ethical Treatment of Animals (PETA) brought suit against the United States Department of Agriculture, alleging that the Department had unlawfully failed to implement the Animal Welfare Act with respect to birds. On appeal, the court found PETA had standing, but had failed to plausibly allege that the USDA's decade-long inaction constituted agency action “unlawfully withheld” in violation of the APA. People for the Ethical Treatment of Animals v. U.S. Dept. of Agriculture, 797 F.3d 1087 (D.C. Cir., 2015)

7. "Farm Animal"

Without an adequate discussion about why the Judicial Officer held aoudad, alpaca, and miniature donkeys were not “farm animals” exempt from the statute's licensing requirement, the Court of Appeals could not exercise judicial review. Knapp v. U.S. Department of Agriculture, 796 F.3d 445 (5th Cir. 2015)

While an animal's use for breeding is relevant to the determination of whether that animal is a farm animal, there is no separate categorical exception for all animals purchased for breeding purposes. Knapp v. U.S. Deparment of Agriculture, 796 F.3d 445 (5th Cir. 2015)

[ §2132 Acts ] [ §2132 History ]

§ 2133D  DECISIONS [Licensing of dealers and exhibitors ]

The 11th Circuit found it had subject matter jurisdiction to review the animal advocacy organizations' challenge to a licence renewal under the Administrative Procedure Act; it also found that the USDA's interpretation—which did not condition renewal on compliance with animal welfare standards on the anniversary of the license issuance date—was a reasonable one. Animal Legal Defense Fund v. U.S. Dept. of Agriculture, 789 F.3d 1206 (11th Cir. 2015)

No Decisions

[ §2133 Acts ] [ §2133 History ]

§ 2134D  DECISIONS [§ 2134. Valid license for dealers and exhibitors required ]

Animal trainer who transported, without license, wolf from Utah to California for exhibition on television violated Animal Welfare Act of 1970 (7 USCS §§ 2131 et seq.); ALJ did not err in issuing cease and desist order to prevent trainer from further illegally transporting and exhibiting his animals and in assessing $500 civil penalty against trainer. Robinson v United States (1983, CA10) 718 F2d 336.

Willful violation is defined as one where violator either intentionally does act which is prohibited, irrespective of evil motive or reliance on erroneous advice, or acts with careless disregard of statutory requirements. In re Terry Lee Harrison, et al. (1992) 51 Ag Dec 234.

Congress has authority under Commerce Clause (Art I, § 8, cl 3) to give Department of Agriculture authority to regulate interstate activities within purview of Animal Welfare Act (7 USCS §§ 2131 et seq.), including activities of animal exhibitors. In re Otto Berosini (1995) 54 Ag Dec 886.

Operator did not qualify for the licensing exemption for persons who only purchased animals for personal use and did not also sell animals. Knapp v. U.S. Department of Agriculture, 796 F.3d 445 (5th Cir. 2015)

Department of Agriculture's Guide on the unambiguous hoofstock exemption was inconsistent with Department regulations. Department regulation required dealers to have a valid license except under eight enumerated circumstances. None of these exemptions covered the sale of hoofstock. Knapp v. U.S. Department of Agriculture 796 F.3d 445 (5th Cir. 2015)

Sale of 12 animals to specified auction house violated the Animal Welfare Act. Knapp v. U.S. Department of Agriculture 796 F.3d 445 (5th Cir. 2015)

[ §2134 Acts ] [ §2134 History ]

§ 2135D  DECISIONS [ § 2135. Time period for disposal of dogs or cats by dealers or exhibitors ]

Company which produces antiserum for medical diagnostic tests by injecting rabbits and other live animals with antigens and then extracting their blood is research facility within meaning of Act, and must therefore be registered. In re Lee Roach and Roach Laboratories, Inc. (1992) 51 Ag Dec 252.

[ §2135 Acts]   [§2135 History ]

§ 2136D  DECISIONS [ §2136. Registration of research facilities, handlers, carriers and unlicensed exhibitors ]

Company which produces antiserum for medical diagnostic tests by injecting rabbits and other live animals with antigens and then extracting their blood is research facility within meaning of Act, and must therefore be registered. In re Lee Roach and Roach Laboratories, Inc. (1992) 51 Ag Dec 252.

[ §2136 Acts ] [ § 2136 History ]

§2137 D  DECISIONS [§2137. Purchase of dogs or cats by research facilities prohibited except from authorized operators of auction sales and licensed dealers or exhibitors ]

No Decisions

[ §2137 Acts ] [ §2137 History ]

§2138D  DECISIONS [§2138. Purchase of dogs or cats by United States Government facilities prohibited except from authorized operators of auction sales and licensed dealers or exhibitors]

No Decisions

[ §2138 Acts ] [ §2138 History ]

§ 2139D  DECISIONS [§ 2139. Principal-agent relationship established]

Corporation and individuals exercising sole control and direction over corporation are jointly assessed penalties under 7 USCS § 2149, based on 7 USCS § 2139, which deals with establishment of principal-agent relationship. Irvin Wilson and Pet Paradise, Inc. v U.S. Dept. of Agriculture (1995, CA7) 54 Ag Dec 111.

[§2139 Acts ] [ §2139 History ]

§ 2140D  DECISIONS [ § 2140. Recordkeeping by dealers, exhibitors, research facilities, intermediate handlers, and carriers ]

Dealers and other regulated persons are required to grant access to their records during ordinary business hours, without any advance notice from Department. In re E. Lee Cox and Becky Cox d/b/a Pixy Pals Kennel (1990) 49 Ag Dec 115.

Since 7 USCS § 2140 requires that exhibitors make their records identifying animals available for inspection at all reasonable times, it is not unreasonable to expect that records be with animals as they are transported. In re John D. Davenport, d/b/a King Royal Circus (1998) 57 Ag Dec 189.

[ §2140 Acts ] [ §2140 History ]

§2141 D  DECISIONS [§2141 Marking and identification of animals ]

No Decisions

[ §2141 Acts ] [ §2141 History ]

§ 2142 D  DECISIONS [§ 2142. Humane standards and recordkeeping requirements at auction sales]

Secretary is authorized to promulgate standards applicable to operator of auction sale as to care, treatment, housing, feeding, watering, and sanitation of animals, since literal language of 7 USCS § 2142 and its legislative history gives Secretary broad authority to impose on auction operator standards of humane handling of all animals subject to Animal Welfare Act, and although construing word "handling" in § 2143 broad enough to include those areas would nullify significance and effect of additional terms, contemporaneous construction of Act by administrative officials charged with responsibility for achieving congressional purpose of ensuring humane care and treatment of animals indicates Secretary has authority to impose such standards on auction operators. In re Zartman (1985) 44 Ag Dec 174.

[ §2142 Acts ] [ §2142 History ]

§ 2143 D  DECISIONS [ § 2143. Standards and certification process for humane handling, care, treatment, and transportation of animals ]

Individuals and organizations seeking to monitor treatment of animals and compliance with Federal Laboratory Animal Welfare Act (7 USCS §§ 2131 et seq.) do not have standing to challenge regulations promulgated under 7 USCS § 2143 because plaintiffs are outside Act's zone of interest and have not alleged sufficient injury. Animal Legal Defense Fund v Espy (1994, App DC) 308 US App DC 74, 29 F3d 720.

Self-professed animal lover who was frequent visitor to animal park fell within zone of interest protected by Animal Welfare Act (7 USCS § 2143) and had standing to bring lawsuit which sought invalidation of federal regulations concerning treatment of primates on grounds that those regulations failed to live up to mandate of Act. Animal Legal Defense Fund v Glickman (1998, App DC) 332 US App DC 104, 154 F3d 426, 29 ELR 20202, cert den (1999, US) 143 L Ed 2d 541, 119 S Ct 1454.

Kennel owner's Supremacy Clause challenge to new state animal dealers act must fail, where many of proposed state regulations apparently "mirror identically" federal regulations already in force, because it is clear that Animal Welfare Act (7 USCS §§ 2131 et seq.) does not evince intent to preempt state regulation of animal welfare. Kerr v Kimmell (1990, DC Kan) 740 F Supp 1525.

Regulation was too remote and peripheral to statutory grant and beyond scope of regulatory grant to enforce provisions of act provided in 7 USCS § 2143, where regulation required that "a sufficient number of employees shall be utilized to maintain the prescribed level of husbandry practices set forth in this subpart." In re Mrs. John M. DeBoer (1979) 38 Ag Dec 345.

Regulations require that persons transporting live animals in primary enclosures must insure that each animal has sufficient space to turn about freely in standing position using normal body movement, to stand and sit erect, and to lie in natural position. In re Marshall Research Animals, Inc. (1980) 39 Ag Dec 359.

Secretary is authorized to promulgate standards applicable to operator of auction sale as to care, treatment, housing, feeding, watering, and sanitation of animals, since literal language of 7 USCS § 2142 and its legislative history gives Secretary broad authority to impose on auction operator standards of humane handling of all animals subject to Animal Welfare Act, and although construing word "handling" in § 2143 broad enough to include those areas would nullify significance and effect of additional terms, contemporaneous construction of Act by administrative officials charged with responsibility for achieving congressional purpose of ensuring humane care and treatment of animals indicates Secretary has authority to impose such standards on auction operators. In re Zartman (1985) 44 Ag Dec 174.

At-will veterinarian stated cause of action for wrongful discharge under state's public policy exception to employment at will doctrine, when he pleaded that he was retaliated against and discharged because he reported violation of Animal Welfare Act. Luethans v Washington Univ. (1992, Mo App) 838 SW2d 117, 7 BNA IER Cas 1131.

State Dog Law was preserved and expressly authorized by the AWA; and where state or local action was specifically authorized by Congress, the law was not subject to the Commerce Clause even if it interfered with interstate commerce. Zimmerman v. Wolff, 622 F.Supp.2d 240 (E.D. Pa. 2008)

Breeder was in the business of buying, breeding, raising, and selling of exotic and wild animals. The town passed an ordinance making it unlawful to keep certain wild animals, and the breeder filed suit challenging the constitutionality of a local ordinance.  On appeal, the court found the ordinance was not preempted by the Animal Welfare Act, amongst other holdings. DeHart v. Town of Austin, Ind., 39 F.3d 718, 720 (7th Cir. 1994)

[ §2143 Acts ] [ §2143 History ]

§ 2144D  DECISIONS [Humane standards for animals by United States Government facilities]

No Decisions

[ §2144 Acts ] [ §2144 History ]

§ 2145 D  DECISIONS [ § 2145. Consultation and cooperation with Federal, State, and local governmental bodies by Secretary of Agriculture]

Dealers and other regulated persons are required to grant access to their records during ordinary business hours, without any advance notice from Department. In re E. Lee Cox and Becky Cox d/b/a Pixy Pals Kennel (1990) 49 Ag Dec 115.

State statute which prohibited importation of pets for resale from states with less stringent licensing laws and regulations for commercial pet dealers was not pre-empted by Animal Welfare Act of 1970, 7 USCS §§ 2131 et seq., given different purposes behind federal statute (preventing pet thievery and inhumane research) and state statute (public health), and clear expressions of Congressional intent to foster co-operation with state interests under Act found in 7 USCS § 2145 (d), and therefore there was no Congressional intent to ban remedial state legislation in field of interstate commerce in pets. Winkler v Colorado Dep't of Health (1977) 193 Colo 170, 564 P2d 107.

[ §2145 Acts ] [ §2145 History ]

§ 2146D  DECISIONS [ § 2146. Administration and enforcement by Secretary ]

Action brought by owner of professional animal act for judgment declaring that he was not subject to regulation under Animal Welfare Act of 1970 was within jurisdiction of federal district court. Haviland v Butz (1976) 177 US App DC 22, 543 F2d 169, 36 ALR Fed 615, cert den (1976) 429 US 832, 50 L Ed 2d 97, 97 S Ct 95.

Search conducted by Administrator of Animal and Plant Health Inspection Service pursuant to Animal Welfare Act (7 USCS §§ 2131 -2159) fits within exception to warrant requirement for "closely regulated" industries, and Act's inspection program provides constitutionally adequate substitute for search warrant during routine searches. Lesser v Espy (1994, CA7) 34 F3d 1301.

Judicial officer is not required to accept ALJ's findings of fact, even when those findings are based on credibility determinations, and judicial officer is authorized to substitute his or her judgment for that of ALJ. Volpe Vito, Inc. v USDA (1999, CA6) 58 Ag Dec 85.

Inspectors have considerable discretion in selecting their methods of inspection and way in which they document their observations, and photographic documentation obtained during normal business hours in reasonable manner that does not disrupt ongoing research must be construed as within boundaries of such discretion; interference with inspectors' reasonable efforts to take photographs to enhance inspection violates § 2146(a). In re SEMA, Inc. (1990) 49 Ag Dec 176.

Dealer who chooses not to be, or cannot be, present at inspection must designate someone to allow inspection in his absence. In re Craig Lesser, et al. (1993) 52 Ag Dec 155.

Equitable estoppel does not generally apply to government acting in its sovereign capacity, as it does in disciplinary proceeding under Animal Welfare Act (7 USCS §§ 2131 et seq.), and estoppel is only available if government's wrongful conduct threatens to work serious injustice, if public's interest would not be unduly damaged by imposition of estoppel, and generally, only if there is proof of affirmative misconduct by government. In re Big Bear Farm, Inc. (1996) 55 Ag Dec 107.

By alleging a regulatory scheme as unconstitutional and not the individual acts of the Defendants, Appellant failed to state a claim under Bivens. Knaust v. Digeualdo, 589 Fed.Appx. 698 (5th Cir. 2014)

[ §2146 Acts ] [ §2146 History ]

§2147 D  DECISIONS [§2147 Inspection by legally constituted law enforcement]

No Decisions

[ §2147 Acts ] [ §2147 History ]

§ 2148D  [Importation of live dogs]

No Decisions

[ §2148 Acts ] [ §2148 History ]

§ 2149 D  DECISIONS [§ 2149. Violations by licensees ]

1. Generally

Imposition of $4,000 civil penalty was appropriate under 7 USCS § 2149 (b) where respondent committed numerous, serious violations of Animal Welfare Act, respondent handled large number of animals, and violations continued after respondent was advised in writing of violations and given opportunity to correct them. In re Stumbo (1984) 43 Ag Dec 1079.

There was nothing in record that indicated need for any type of disciplinary order under 7 USCS § 2149 for trivial violations of standards promulgated by Secretary under Animal Welfare Act which did not pose serious threat to well-being of animals, where respondent had been in animal auction business for 32 years, respondent had long, unblemished record of compliance with federal and state requirements applicable to animal auction, and testimony and photographs failed to reveal any serious violations warranting imposition of sanction. In re Zartman (1985) 44 Ag Dec 174.

Ability to pay civil penalty is not to be considered in determining penalty under Animal Welfare Act. In re Jerome A. Johnson, et al . (1992) 51 Ag Dec 209.

Where complaint advised respondent of exact matters at issue, there is no basis for dismissing any allegations of complaint merely because they failed to specify subsections of regulations or standards involved in some of alleged violations. In re Pet Paradise, Inc. (1992) 51 Ag Dec 1047.

Fact that individual charged with violating Act has filed for bankruptcy does not restrict Department's ability to obtain corrective action required to maintain and preserve welfare of animals. In re Alex Pasternak (1993) 52 Ag Dec 180.

When regulated entity fails to comply with Act, regulations or standards, there is separate violation for each animal consequently harmed or placed in danger. In re Delta Airlines, Inc. (1994) 53 Ag Dec 1076.

Respondent's inability to pay civil penalty is not consideration in determining civil penalties assessed under Animal Welfare Act. In re James J. Everhart (1997) 56 Ag Dec 1400.

Respondent who, after being duly notified, fails to appear at hearing for good cause, is deemed to have admitted any facts presented at hearing and all material allegations of fact contained in Animal Welfare Act complaint. In re James Michael LaTorres (1997) 57 Ag Dec 53.

Imposition of sanction within authority of administrative agency is not rendered invalid in particular case because it is more severe than sanctions imposed in other cases. In re Volpe Vito, Inc., d/b/a Four Bears Water Park and Recreation Area (1997) 56 Ag Dec 166.

Respondent who is unable to afford attorney has no right to have counsel provided by government in disciplinary administrative proceedings conducted under Animal Welfare Act. In re Steven M. Samek and Trina Joann Samek (1998) 57 Ag Dec 185.

Recommendations of administrative officials charged with responsibility for achieving congressional purpose of Animal Welfare Act are highly relevant to any sanction to be imposed and are entitled to great weight in view of experience gained by administrative officials during their day-to-day supervision of regulated industry; however, recommendation of administrative officials as to sanction is not controlling, and in appropriate circumstances, sanction imposed may be considerably less, or different, than that recommended by administrative officials. In re Marilyn Shepherd (1998) 57 Ag Dec 242.

Recommendations of administrative officials charged with responsibility for achieving congressional purpose of statute are highly relevant to any sanction to be imposed and are entitled to great weight in view of experience gained by administrative officials during their day-to-day supervision of regulated industry; however, recommendation of administrative officials as to sanction is not controlling, and in appropriate circumstances, sanction imposed may be considerably less, or different, than that recommended by administrative officials. In re Judie Hansen (1998) 57 Ag Dec 1072.

Ongoing pattern of violations establishes "history of previous violations" for purposes of 7 USCS § 2149 (b), and it is appropriate to view evidence as establishing prior violations in determining appropriate level of civil penalty. In re David M. Zimmerman (1998) 57 Ag Dec 1038.

Ongoing pattern of violations establishes "history of previous violations" for purposes of 7 USCS § 2149 (b). In re James E. Stephens and Water Wheel Exotics, Inc. (1999) 58 Ag Dec 149.

Purpose of administrative sanction is deterrence rather than punishment. In re James E. Stephens and Water Wheel Exotics, Inc. (1999) 58 Ag Dec 149.

Sanction in each case is to be determined by examining nature of violations in relation to remedial purposes of regulatory statute involved, along with all relevant circumstances, giving appropriate weight to recommendations of administrative officials having responsibility for achieving congressional purpose. In re Patrick D. Hoctor  (1995) 54 Ag Dec 114.

The Animal Welfare Act indicates that the Court of Appeals, not the District Court, has “exclusive” jurisdiction to set aside or determine the validity of the Secretary's order.  US v. Korn, 2010 WL 5110048 (D. Idaho Dec. 2010)

Court of Appeals reviews Judicial Officer's choice of sanction for abuse of discretion. The sanction may be overturned only if it is “unwarranted in law or without justification in fact.” Knapp v. U.S. Deparment of Agriculture,  796 F.3d 445 (5th Cir. 2015)

Plaintiff's complaint was based on government employees’ duty to exercise reasonable care in the execution of their official duties. Government moved to dismiss for lack of subject matter jurisdiction. The district court found the action was barred by three exceptions to the Federal Torts Claims Act: the misrepresentation exception, the discretionary exception, and the interference with contracts exception. Government motion was granted. Hawthorn Corp. v. U.S.,  --- F.Supp.3d ----2015 WL 1346473 (M.D. Fla., 2015)

2. Purpose

Purpose of sanctions is to deter respondent, as well as others, from committing same or similar violations. In re David M. Zimmerman (1997) 56 Ag Dec 433.

Purpose of administrative sanction is deterrence of future violations by violator and other potential violators. In re David M. Zimmerman (1998) 57 Ag Dec 1038.

3. Congressional intent

Sanction in each case is to be determined by examining nature of violation in relation to remedial purposes of regulatory statute involved, along with all relevant circumstances, giving appropriate weight to recommendations of administrative officials charged with responsibility for achieving congressional purpose. In re Cecil Browning, et al. (1993) 52 Ag Dec 129.

4. Burden of proof

Burden of proof in disciplinary proceedings under Animal Welfare Act is preponderance of evidence; quantitatively, complainant need only show scintilla more than fifty percent of evidence to prevail under preponderance standard. In re John D. Davenport, d/b/a King Royal Circus (1998) 57 Ag Dec 189.

Burden of proof in disciplinary proceedings under Animal Welfare Act is preponderance of evidence. In re C.C. Baird, d/b/a Martin Creek Kennel (1998) 57 Ag Dec 127; In re Marilyn Shepherd (1998) 57 Ag Dec 242.

5. Authority of Secretary

Secretary acted within his authority under Act in imposing sanction consisting of $9250 fine and 30-day license suspension where judicial officer considered size of plaintiffs' business, their business reputation, and their history of compliance with Act, but also found that plaintiffs were guilty of numerous violations of varying degrees of severity, some of which violations plaintiffs had willfully failed to correct, and that plaintiffs had repeatedly refused in bad faith to allow inspections. Lesser v Espy (1994, CA7) 34 F3d 1301.

In assessing penalties under § 2149(b), Secretary must give due consideration to size of business involved, gravity of violation, person's good faith, and history of previous violations. In re Lee Roach and Roach Laboratories, Inc. (1992) 51 Ag Dec 252.

Except as provided in 9 CFR § 2.11, neither Animal Welfare Act (7 USCS §§ 2131 et seq.) nor regulations issued under Act specifically provide for order prohibiting person who is unlicensed from obtaining license; nevertheless, Act provides that Secretary has general authority to promulgate such "orders," as well as such rules and regulations, as may be necessary to effectuate purposes of Act (7 USCS § 2151), which means that Secretary does have power to order that unlicensed person who violates Act, or regulations or standards under Act, be barred from licensure. In re William Joseph Vergis (1996) 55 Ag Dec 148.

An Administrative Law Judge has broad discretion to manage its docket to promote judicial economy, efficiency, and to protect the interests of the parties. ZooCats, Inc. v. U.S. Dept. of Agriculture, 417 Fed.Appx. 378 (5th Cir. 2011)

6. Time limitations

Suspension of zoo operator's license for definite period pursuant to 7 USCS § 2149 (a), (b), and regulations thereunder is appropriate where operator, having been notified that his annual report and annual fee were due, neither paid fee nor filed report within time allowed by statute. In re Mitchell Mathena, D.B.A. Plainsman Zoo (1979) 38 Ag Dec 1531.

Respondents' failure to file timely answer, or deny allegations of complaint, constituted admission of complaint allegations and waiver of hearing, irrespective of respondents' contention that they were justified in not filing answer because ALJ did not rule on respondents' motions to sever, strike and make more definite and certain, since Department's rules of practice do not alter time for filing answer when such motions are filed. In re James Joseph Hickey, Jr., d/b/a S & H Supply Co. and Jerry R. Branton (1994) 53 Ag Dec 1087.

Respondent's failure to file timely answer or deny allegations of complaint constitutes admission of allegations in complaint and waiver of hearing. In re Ronald DeBruin (1995) 54 Ag Dec 876.

Failure of operator to file petition within 60 days after final decision, as required by statute, deprived the 8th Circuit of jurisdiction to consider petition.  Hansen v. U.S. Dept. of Agriculture, 221 F.3d 1342

7. Suspension periods

Dog broker shipping dogs under 8 weeks old was assessed civil penalty of $7,000 and license as dealer under Animal Welfare Act was suspended for 35 days, since broker was one of largest dog brokers in state, 8-week minimum age requirement was based on finding that ability of dogs to function in adult environment was adversely affected if shipped under that age, violations were serious and flagrant in view of large number of puppies shipped on 10 different occasions during 2-month period, and broker had violated Act and standards on prior occasion resulting in 12 day license suspension. In re Stuekerjuergen (1985) 44 Ag Dec 186.

Civil penalty of $1,000 against unlicensed dealer was appropriate under 7 USCS § 2149 (b), and greater penalty could have been requested where although moderate size of kennel suggested modest penalty, selling hundreds of dogs without license over 40-month period was grave violation of Animal Welfare Act, violations were not committed in good faith since dogs were knowingly and intentionally sold without license after receiving 4 warnings, and even though dealer thought mistakenly that Department would not prosecute her for such violations and there was no history of previous violations, the hundreds of violations proven were sufficient to warrant severe sanction. In re Ennes (1986) 45 Ag Dec 540.

Licensed dealer found guilty of numerous violations of Act involving care and housing of dogs and cats, failure to allow inspection of records, and failure to keep and maintain adequate records as to acquisition and disposition of animals, is properly penalized with 25-year suspension of license, civil penalty of $40,000, and cease and desist order. In re James W. Hickey, d/b/a S&S Farms (1988) 47 Ag Dec 840.

Licensed dealer who engaged in recurring pattern of trivial noncompliance with housekeeping requirements, failed to provide records on two occasions and failed to permit inspection on one occasion, is properly sanctioned with 20-day license suspension, $1500 civil penalty, and cease and desist order. In re Ervin Stebane (1988) 47 Ag Dec 1264.

Exhibitor who engaged in recurring pattern of noncompliance with standards governing structural strength, food storage, ventilation, maintenance of facilities and enclosures, cleaning, housekeeping and interior building surfaces, but who made good faith effort to achieve compliance, is properly sanctioned with $1000 civil penalty, 20-day suspension, and cease and desist order. In re Zoological Consortium of Maryland, Inc. (1988) 47 Ag Dec 1276.

8 . "Severe" sanction policy

Reliance is to be no longer placed on "severe" sanction policy set forth in prior decisions; rather, sanction in each case will be determined by examining nature of violations in relation to remedial purposes of regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to recommendations of administrative officials charged with responsibility for achieving congressional purpose. In re S. S. Farms Linn County, et al. (1991) 50 Ag Dec 476.

9. Willfulness

Civil penalty of $200,000.00 (largest civil penalty ever imposed under Act) was appropriate, where degree of willfulness and flagrancy of respondents' violations was astonishing, and even after hearing was pending on initial complaint, respondents continued to violate Act. In re Julian J. Toney and Anita L. Toney (1995) 54 Ag Dec 923.

Only requirement of 7 USCS § 2149 (a), which authorizes suspension or revocation of license of exhibitor if exhibitor has violated or is violating any provision of Animal Welfare Act (7 USCS §§ 2131 et seq.) or any regulation or standard promulgated by Secretary under Act, is that at least one of violations be willful; existence of additional violations not shown to be willful does nothing to take away Secretary's authority to suspend or revoke exhibitor's license. In re Big Bear Farm, Inc., et al. (1996) 55 Ag Dec 107.

Willfulness is not required for cease and desist orders or for monetary fines; it is only required for license revocation if agency has not given respondent written notice of violations and opportunity to come into compliance with regulations. In re Jack D. Stowers, d/b/a Sugar Creek Kennels (1997) 56 Ag Dec 279.

Proof of respondent's willful violations of Animal Welfare Act and regulations and standards is not necessary for revocation or suspension of respondent's license where respondent received notice in writing of facts or conduct that might warrant suspension or revocation of his license, and respondent had opportunity to achieve compliance with requirements of Act and regulations and standards. In re Samuel Zimmerman (1997) 56 Ag Dec 1419.

Proof of willfulness is not prerequisite to concluding that respondent violated Animal Welfare Act or assessing civil penalty or issuing cease and desist order. In re Peter A. Lang, d/b/a Safari West (1998) 57 Ag Dec 91

7 U.S.C. § 2149(b) does not require a willfulness determination before the imposition of civil penalties or a cease and desist order.  Horton v. U.S. Dept. of Agriculture, 559 Fed.Appx. 527 (6th Cir. 2014); Knapp v. U.S. Deparment of Agriculture, 796 F.3d 445 (5th Cir. 2015)

Fact that animal dealers had not previously violated regulations governing dealer identification of animals on premises could mean that charged violations were willful. Prior, routine inspection of dealers' records did not preclude finding that violations were willful, since such a discovery would entail an investigation that went beyond merely examining the records. Toney v. Glickman, 101 F.3d 1236 (8th Cir., 1996)

10. Cease and desist order

Animal trainer who transported, without license, wolf from Utah to California for exhibition on television violated Animal Welfare Act of 1970 (7 USCS §§ 2131 et seq.); ALJ did not err in issuing cease and desist order to prevent trainer from further illegally transporting and exhibiting his animals and in assessing $500 civil penalty against trainer. Robinson v United States (1983, CA10) 718 F2d 336.

Willful violations of 7 USCS §§ 2131 -2156 by Class B dealer warrant issuance of cease and desist order; Class B dealer license of corporation is revoked and individuals exercising sole control and direction are jointly assessed civil penalty of $1,000 under 7 USCS § 2149. In re Animal Research Center of Massachusetts, Inc. (1978) 37 Ag Dec 1168.

11. Corrections

While corrections are to be encouraged and may be taken into account when determining sanction to be imposed, even immediate correction of violation does not operate to eliminate fact that violation occurred and does not provide basis for dismissal of alleged violation. In re Volpe Vito, Inc., d/b/a Four Bears Water Park and Recreation Area (1997) 56 Ag Dec 166.

12. No license

Suspension order may be issued where violation occurred while respondent was not licensed. In re Mary Bradshaw (1991) 50 Ag Dec 499.

Department may impose sanctions even if respondent dealer is not licensed. In re Micheal McCall and Kathy McCall (1993) 52 Ag Dec 986.

13. Principle-agent relationship

Corporation and individuals exercising sole control and direction over corporation are jointly assessed penalties under 7 USCS § 2149, based on 7 USCS § 2139, which deals with establishment of principal-agent relationship. Irvin Wilson and Pet Paradise, Inc. v U.S. Dept. of Agriculture (1995, CA7) 54 Ag Dec 111.

14. Falsification of records

Fine of $12,000 was appropriate where several serious violations were involved, including falsification of records, and there was evidence that violations were willful and violators had annual gross income of $1 million dollars, even though violators had no history of previous violations of Animal Welfare Act. Cox v United States Dep't of Agriculture (1991, CA8) 925 F2d 1102 , cert den (1991) 502 US 860, 116 L Ed 2d 141, 112 S Ct 178.

15. Appeals

Judicial officer is not required to accept ALJ's findings of fact, even when those findings are based on credibility determinations, and judicial officer is authorized to substitute his or her judgment for that of ALJ. Volpe Vito, Inc. v USDA (1999, CA6) 58 Ag Dec 85.

Where administrative law judge denied motion to intervene, would-be intervenor's petition for judicial review of that decision must be denied due to failure to appeal administrative law judge's decision to judicial officer. Marine Mammal Conservancy v Department of Agric. (1998, App DC) 328 US App DC 253, 134 F3d 409, 28 ELR 20538.

Agency's choice of sanction is not to be overturned unless it is unwarranted by law, unjustified by facts, or represents abuse of discretion; sanction is not rendered invalid in particular case because it is more severe than sanctions imposed in other cases. Zimmerman v United States of America and Secretary of Agriculture (1998, CA3) 57 Ag Dec 869.

[ §2149 Acts ] [ §2149 History ]

[ §2150D  [Repealed] ]

No Decisions

[ §2150 Acts ] [ §2150 History ]

§ 2151D  DECISIONS [ § 2151. Rules and regulations ]

Except as provided in 9 CFR § 2.11, neither Animal Welfare Act (7 USCS §§ 2131 et seq.) nor regulations issued under Act specifically provide for order prohibiting person who is unlicensed from obtaining license; nevertheless, Act provides that Secretary has general authority to promulgate such "orders," as well as such rules and regulations, as may be necessary to effectuate purposes of Act ( 7 USCS § 2151), which means that Secretary does have power to order that unlicensed person who violates Act, or regulations or standards under Act, be barred from licensure. In re William Joseph Vergis (1996) 55 Ag Dec 148.

Department of Agriculture rule governing minimum height of enclosures for dangerous animals was substantive rule subject to notice and comment procedure set forth in Administrative Procedure Act. Hoctor v. U.S. Dep't of Agric., 82 F.3d 165 (7th Cir. 1996)

[ §2151 Acts ] [ §2151 History ]

[ §2152D  Separability ]

No Decisions

[ §2152 Acts ] [ §2152 History ]

[§ 2153 D  Fees and authorization of appropriations]

No Decisions

[ §2153 Acts ] [ §2153 History ]

[§ 2154D  Effective dates ]

No Decisions

[ §2154 Acts ] [ §2154 History ]

[§ 2155D  Annual report to the President of the Senate and the Speaker of the House of Representatives ]

No Decisions

[ §2155 Acts ] [ §2155 History]

[§ 2156D  Animal fighting venture prohibition]

Constitutionality

The Animal Welfare Act is a constitutional exercise of Congress' power under the Commerce Clause, and that the provision of different elements of the crime in jurisdictions permitting animal fighting does not violate equal protection rights under the Fifth Amendment. United States v. Lawson, 677 F.3d 629 (4th Cir., 2012)  

Fourth Circuit held that the animal fighting statute was a legitimate exercise of Congress' power under the Commerce Clause. It also held that the statute did not require the government to prove the defendants' knowledge regarding the particular venture's nexus to interstate commerce. U.S. v. Gibert, 77 F.3d 613 (4th Cir. 2012)

Plaintiff challenged the constitutionality of the Animal Welfare Act after it created a regulation that prohibited the interstate or foreign commerce transport of birds that would be used in fighting ventures. She argued that the regulators did not consider whether fighting ventures were legal in the state where the birds were being transported to. However, the regulation was considered constitutional since under terms of section 2156(b), only the foreign and interstate transport of the birds was prohibited. Slavin v. United States, 403 F.3d 522 (8th Cir. 2005).

The Plaintiff-Appellants were citizens (show bird breeders, feed store owners, and game bird judges) who allege that the Animal Welfare Act (AWA) amendments to § 2156 concerning animal fighting ventures have caused them various individual and collective injuries. The plaintiffs-appellants allege that these provisions are unconstitutional insofar as they constitute a bill of attainder; violate the principles of federalism contained in, inter alia, the Ninth, Tenth, and Eleventh Amendments to the United States Constitution; and unduly impinge on the plaintiffs-appellants' First Amendment right of association, constitutional right to travel, and Fifth Amendment right to due process for deprivations of property and liberty. The district court dismissed the lawsuit for lack of Article III standing. The Sixth Circuit held that while economic injuries may constitute an injury-in-fact for the purposes of Article III standing, the plaintiffs' alleged economic injuries due to restrictions on cockfighting are not traceable only to the AWA. Additionally, because the AWA does not impose any penalties without a judicial trial, it is not a bill of attainder. The decision of the district court was affirmed. White v. United States, 601 F.3d 545 (6th Cir. 2010).

Postal Service

Despite finding that the actions taken by the USPS were indeed judicially reviewable, the court remanded the matter because, after the Humane Society initiated this lawsuit, Congress amended § 2156 of the Animal Welfare Act again, further defining issue of nonmailable animal fighting material. Humane Soc'y of U.S. v. U.S. Postal Serv., 609 F. Supp. 2d 85(D.D.C. 2009)

Sentencing

The 8th Circuit found the district court had properly considered conduct that was legally relevant to Defendants' sentencing under the  United States Sentencing Guidelines. The court also found that Defendants' conduct amounted to more than just possessing fighting pit bulls. Defendants bred, raised, trained, sold, and fought them knowing that the dogs would be allowed, if not required, to fight until severely injured or dead. Thus, the ordinary cruelty inherent in dog fighting justifies base offense level, while the extraordinary cruelty of Defendants' crimes separately justified the upward departure. U.S. v. Hackman, 630 F.3d 1078 (8th Cir. 2011).

[ [§2156 Acts ] [ §2156 History]

[§ 2157D  Release of trade secrets]

No Decisions

[ §2157 Acts ] [ §2157 History ]

[§ 2158D  Protection of Pets]

No Decisions

[ §2158 Acts ] [ §2158 History ]

[§ 2159D  Authority to apply for injunctions ]

No Decisions

[ §2159 Acts ] [ §2159 History ]