NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0115n.06
No. 09-4114
FILED
UNITED STATES COURT OF APPEALS Feb 17, 2011
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
LORENZO PEARSON, dba L&L Exotic
Animal Farm,
ON PETITION FOR REVIEW OF
Petitioner, AN ORDER OF THE SECRETARY,
UNITED STATES DEPARTMENT
v. OF AGRICULTURE
UNITED STATES DEPARTMENT OF
AGRICULTURE; TOM VILSACK, Secretary
of Agriculture,
Respondents.
/
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.
No. 09-4114
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
1
In proceedings before the Secretary, Petitioner’s name was mistakenly spelled Lorenza Pearson.
2
Petitioner was previously cited during inspections occurring in May and November 1998; however,
these citations were later withdrawn.
3
Petitioner implies that the APHIS inspections were improper due to the participation of inspector
Dr. Norma Harlan, who allegedly cited Petitioner for infractions after he refused to cooperate in the
investigation of another animal handler. However, Petitioner has not briefed the issue of selective
enforcement, so we deem it waived on appeal. See Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651,
656 n.2 (6th Cir. 2008) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived”) (citing McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir.
1997)).
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No. 09-4114
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
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No. 09-4114
(“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 several
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No. 09-4114
of 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 were
4
The judicial officer explained his sanction award as follows:
I assess Mr. Pearson a civil penalty of $275 for each violation committed on or before June
23, 2005, and $375 for each violation committed after June 23, 2005. Except that, I assess
Mr. Pearson $1,000 for each failure to have a responsible person available to allow APHIS
officials to inspect his facility, in violation of section 2.126(a) of the Regulations (9 C.F.R.
§ 2.126(a)) (August 27, 2002, May 5, 2003, and May 11, 2005); $2,000 for housing animals
at unapproved locations on January 18, 2004, in violation of section 2.5(d) of the
Regulations (9 C.F.R. § 2.5(d)); $2,000 for housing animals at unapproved locations on
January 30, 2004, in violation of section 2.5(d) of the Regulations (9 C.F.R. § 2.5(d));
$2,000 for the January 30, 2004, failure to notify the Animal Care Regional Director of
additional sites at which Mr. Pearson housed animals, in violation of section 2.8 of the
Regulations (9 C.F.R. § 2.8); and $2,000 for each refusal to allow APHIS officials to inspect
his entire facility, in violation of section 2.126(a)(4) of the Regulations (9 C.F.R. §
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No. 09-4114
appropriate 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.
2.126(a)(4)) (May 12, 2005, and October 5, 2005). I find these violations are extremely
serious because they thwart the Secretary of Agriculture’s ability to enforce the Animal
Welfare Act.
In re Lorenza Pearson, 2009 WL 2134028, at *30 n.9.
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No. 09-4114
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 of granting Petitioner’s request to retry the case, and that he
suffered prejudice as a result because ALJ Palmer was unable to assess the credibility of
Respondents’ witnesses. United States Department of Agriculture (“U.S.D.A.”) regulations speak
directly to the issue of when abatement and retrial are proper, providing that: “[i]n case of the
absence of the Judge or the Judge’s inability to act, the powers and duties to be performed by the
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Judge under these rules of practice in connection with any assigned proceeding may, without
abatement of the proceeding unless otherwise directed by the Chief Judge, be assigned to any other
Judge.” 7 C.F.R. § 1.144(d).
In denying Petitioner’s request to terminate proceedings and grant a retrial, ALJ Palmer
interpreted this provision to mean that “absent an order from the Chief Administrative Judge, the
case will proceed from the point at which the first administrative law judge became unavailable.”
The judicial officer affirmed. We do not believe this interpretation was “plainly erroneous or
inconsistent with the regulation.” See Intermodel Tech., Inc. v. Peters, 549 F.3d 1029, 1031 (6th Cir.
2008) (providing standard for reversal). Further, to address Petitioner’s concerns regarding witness
testimony, ALJ Palmer recalled all of Respondents’ witnesses and allowed them to be recross-
examined by Petitioner so that they could be impeached and their credibility examined anew. These
measures were adequate to ensure that Petitioner was not unduly prejudiced. Accordingly,
Petitioner’s procedural objection is not well taken.
B. The Secretary’s Denial of Petitioner’s Motion for a Continuance
Second, Petitioner alleges that the Secretary erred by denying his motion for a continuance
after Petitioner’s home was destroyed in a fire. While we are troubled by the Secretary’s disposition
of this issue,5 a denial of a continuance is reviewed deferentially for abuse of discretion and
petitioners must establish prejudice. See, e.g., United States v. Lewis, 605 F.3d 395, 401 (6th Cir.
5
We have little doubt that Petitioner’s request for a continuance was based on a legitimate and
compelling reason, not one that was “dilatory, purposeful or contrived” or the product of Petitioner’s own
actions. Powell v. Collins, 332 F.3d 376, 396 (6th Cir. 2003). However, this alone does not compel a finding
of abuse of discretion. Id.
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No. 09-4114
2010); Fitzhugh v. Drug Enforcement Admin., 813 F.2d 1248, 1252 (D.C. Cir. 1987); NLRB v.
Hackenberger, 531 F.2d 364, 365 (6th Cir. 1976).
In the instant case, Petitioner’s challenge to the Secretary’s decision fails because he is unable
to establish prejudice. Petitioner forfeited his right to submit evidence to the Secretary on April 6,
2006, two months prior to the fire, by failing to comply with the ALJ’s deadline regarding the
exchange and submission of exhibits. See 7 C.F.R. § 1.322(g) (“[N]o exhibit not provided to the
opposing party as provided above shall be admitted into evidence at the hearing absent a showing
of good cause.”). Even assuming that Petitioner’s late evidence would have been received, Petitioner
has failed to indicate, even on appeal to this Court, what if any destroyed evidence he would have
been able to reamass if given additional time. Without any such proffer, we are forced to conclude
that Petitioner was not prejudiced, and that no abuse of discretion occurred.
C. The Secretary’s Decision to Grant Respondents’ Cross-Appeal for Civil
Sanctions
Finally, Petitioner contends that the Secretary violated agency procedural rules when he
assessed civil sanctions against Petitioner pursuant to a cross-appeal that Respondents filed nearly
three months after the ALJ decision. Petitioner argues that Respondents’ cross-appeal contravenes
7 C.F.R. § 1.145(a) of the U.S.D.A. Rules of Practice, which provides that “[w]ithin 30 days after
receiving service of the Judge’s decision . . . a party who disagrees with the decision, any part of the
decision, or any ruling by the Judge or who alleges any deprivation of rights, may appeal the decision
to the Judicial Officer by filing an appeal petition with the Hearing Clerk.” Id.
After reviewing the Secretary’s decision and pertinent regulations, we conclude that no legal
error occurred. As a preliminary matter, Petitioner’s reliance on 7 C.F.R. § 1.145(a) is misplaced.
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No. 09-4114
Cross-appeals are in fact governed by sub-section (b) of the provision, which provides that “[w]ithin
20 days after the service of a copy of an appeal petition and any brief in support thereof, filed by a
party to the proceeding, any other party may file with the Hearing Clerk a response in support of or
in opposition to the appeal and in such response any relevant issue, not presented in the appeal
petition, may be raised.” 7 C.F.R. § 1.145(b). This procedural regulation has been interpreted to
“permit a party to await the other party’s appeal before filing a cross-appeal raising any relevant
issue, without first filing a protective notice of appeal.” In re Daniel Sterbin & William Strebin, 56
Agric. Dec. 1095, at *32 (U.S.D.A. Nov. 26, 1997) (table) (describing the rule as well-settled).
Therefore, Respondents’ brief was not due until 20 days after Petitioner submitted his appeal, and
Respondents were entitled to raise the issue of sanctions, even though it was not raised in
Petitioner’s appeal petition.
Respondents’ cross-appeal was also timely. Following the hearing, Petitioner and
Respondents were each granted a filing extension pursuant to the provisions of 7 C.F.R. §§ 1.143(d)
and 1.147(f). Petitioner’s appeal, which was initially due on May 9, 2008, was timely filed on July
23, 2007 pursuant to an extension. Respondents’ cross-appeal, initially due on August 13, 2007
based on the provisions of 7 C.F.R. § 1.145(b), was timely filed on August 21, 2007 pursuant to an
extension granted on August 8, 2007 that made August 21, 2007 the new due date. Because
Respondents cross-appealed for sanctions in accordance with agency procedures and pursuant to a
formal extension, we believe that the Secretary did not err when he took Respondents’ brief as
timely.
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No. 09-4114
Nonetheless, despite no finding of legal error, we feel compelled to express our concern
regarding the Secretary’s handling of the imposition of the fine. Had Petitioner not exercised his
right to appeal, presumably he would only be facing revocation of his license, not revocation plus
a $93,957 fine. While the Secretary was fully authorized to impose the fine, this outcome may
discourage other petitioners from exercising their statutory rights.
III. Evidentiary Support for the Secretary’s Determinations
Challenging a handful of the ALJ’s factual findings, Petitioner contends that his license
revocation was not supported by substantial evidence. This argument is without merit. An AWA
license may be revoked following a single, willful violation of the Animal Welfare Act, see Cox et
al. v. U.S. Dep’t of Agric., 925 F.2d 1102, 1105 (8th Cir. 1991), and in the instant case the Secretary
based his determinations on a substantial, perhaps overwhelming body of evidence, including
investigation reports, photographs, witness testimony, and exhibits concerning nearly twenty-five
inspections of Petitioner’s facilities that revealed infractions. Petitioner’s failure to bring his
facilities into compliance after repeated warnings also makes clear that his violations were willful.
See Hodgins v. U.S. Dep’t of Agric., 238 F.3d 421, at *9 (6th Cir. Nov. 20, 2000) (table) (defining
willful conduct as conduct “knowingly taken by one subject to the statutory provisions in disregard
of the action's legality”). Therefore, we affirm the Secretary’s findings.
CONCLUSION
The Secretary did not commit procedural error with respect to the proceedings, and the record
substantiates that Petitioner failed to conform his conduct to the requirements of the Animal Welfare
Act, despite having numerous opportunities to do so. Therefore, the petition for review is DENIED.
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