USDA OALJ/OHC UNITED STATES DEPARTMENT OF AGRICULTURE 206 FEB 11 PH & 24 BEFORE THE SECRETARY OF AGRICULTURE RECEIVED Inre ) AWA Docket 15-0080 )) TIMOTHY STARK, an individual, ) COMPLAINANT'S ) PETITION FOR APPEAL AND Respondent ) SUPPORTING BRIEF Complainant, the Administrator of the Animal and Plant Health Inspection Service (APHIS), hereby files complainant's petition for appeal of the initial decision in the above- captioned matter, and complainant’s supporting brief. This filing is made pursuant to section 1.145 of the Rules of Practice governing proceedings under the Animal Welfare Act (7 C.F.R. § 1.145), on all of the pleadings and papers on filed herein, and on the following supporting brief. COMPLAINANT'S BRIEF IN SUPPORT OF PETITION FOR APPEAL 1 Statement of Facts ‘This proceeding was instituted under the Animal Welfare Act, as amended (7 U.S.C. § 2131 ‘et seq.)(Act or AWA), by an “Order to Show Cause Why Animal Welfare Act License 32-C-0204 Should Not Be Terminated” (OSC), filed on February 26, 2015, by APHIS. ‘The respondent filed an answer on March 23, 2015,:in which he admitted “the factual allegations of enumerated paragraph 3 of the Order.” Answer at 1,43. Paragraph 3 of the OSC alleged that respondent “has been found to have violated the Endangered Species Act, a federal law pertaining to the ownership and welfare of animals.” OSC at 2, 43. On June 3, 2015, APHIS filed a motion for summary judgment. On July 28, 2015, respondent Stark filed a motion for summary judgment. On December 7, 2015, the complainant filed a request for a ruling on the pending motions.On January 11, 2016, the Acting Chief Administrative Law Judge Janice K. Bullard filed a “Decision and Order Denying and Granting Summary Judgment” (Initial Decision and Order). ‘The Judge found that “USDA has failed to carry the burden of proof in this matter,” and stated: “Accordingly, | find it appropriate to DENY USDA's motion for summary judgment, By denying Complainant's motion for summary judgment, I have tacitly granted Respondent's motion for summary judgment in his favor.” Initial Decision and Order at 6-7. ‘The Judge ordered APHIS to “issue Respondent's AWA Exhibitor's license, if it has been timely submitted for renewal and if all fees have been paid.” Id. at 8, The Judge further stated that the Initial Decision and Order “shall be effective 35 days after this decision is served upon the Petitioner unless there is an appeal to the Judicial Officer pursuant to 7 C.F.R. § 1.145." Id. The complainant was served with a copy of the Initial Decision and Order on January 12, 2016. The thirtieth day after January 12, 2016, is February 11, 2016. iT nm ‘The AWA is a remedial statute enacted to “insure that animals . . . are provided humane care and treatment.” Section 2.12 of the Regulations, through section 2.11, authorizes the Department to terminate any license issued to a person who: “[hJas made any false or fraudulent statements or provided any false or fraudulent records to the Department or other government agencies, or has pled nolo contendere (no contest) or has been found to have violated any Federal, State, or local laws or regulations pertaining to the transportation, ownership, neglect or welfare of animals, or is otherwise unfit to be licensed and the Administrator determines that the issuance of a license would be contrary to the purposes of the Act.” 9 CER. § 2.11086). Section 2.12 states: “A license may be terminated during the license renewal process or at any other tic for any reason that an initial license application may be denied pursuant to § 2.11 after a hearing in accordance with the applicable rules of practice.” 9C.F.R.§2.12. The final version of sections 2.11 and 2.12 of the Regulations was published in the Federal Register on July 14, 2004 (69 Fed.Reg. 42,089 (July 14, 2004), Sections 2.11 and 2.12 of the Regulations became effective on August 14, 2004 (69 Fed. Reg. 42,089 (Iuly 14, 2004)). The Judge erred in denying summary judgment to the complainant on the grounds that (1) respondent Stark’s conviction for violating the Endangered Species Act was “an old conv and was an insufficient basis for license termination; (2) APHIS failed to “establish that the Administrator of APHIS determined that the issuance of a license to Respondent would be contrary to the purposes of the Act;” (3) APHIS annually renewed AWA license 32-C-0204; (4) APHIS did not allege or introduce evidence “that Respondent failed to report his conviction;” and (5) APHIS. did not prove that Respondent “has been found to have harmed the animals in his custody.” The Initial Decision and Order should be reversed or vacated because it is based on an incorrect interpretation and application of the Vicensed Regulations, and failure 10 apply relevant case law, AL inating Respondent’s License ‘The Judge erred in finding that the respondent was convicted of violating the Endangered Species Act in 2007, and in discounting his conviction as a basis for license termination because the Judge considered it “an old conviction.” Initial Decision and Order at 8; 6 (“I find that it would be arbitrary and capricious for APHIS to now terminate Respondent’ license for conduct occurring, more than fen years in the past..”); see also Id. at 7 (“The instant action to terminate Respondent's ‘AWA license rests solely on his conviction for an offence that occurred more than ten years ago.”) First, at the outset, the respondent was convicted of a Violation of the Endangered Species Act in 2008, See SC at CX 2 (page 18)(Judgment in a Criminal Case), Second, the date of the respondent's underlying act (in around October 2004) did not trigger the ability of APHIS to institute an AWA license termination proceeding; his 2008 conviction did.In re Animals of Montana, Inc., 68 Agric. Dec. 92, 109 (2009) (holding conviction triggers the Secretary of Agriculture's ability to terminate an Animal Welfare Act license pursuant to 9 C.F.R. §§ 2.11(a)(6) and 2.12; not the date of the underlying criminal activities); In re Lee Marvin Greenly, 2013 WL 8213613, at *6 (July 2, 2013)(“[T}he “claim” in this proceeding first accrued on March 14, 2007, when Mr. Greenly was convieted of violating the Lacey Act, not in September and October 2005, when Mr. Greenly asserts he violated the Lacey Act.”) Third, the Judge states that “[t}here has been no allegation made, and no evidence presented, that Respondent failed to report his conviction,” presumably to APHIS. Initial Decision and Order a6, The Regulations contain no requirement that APHIS establish that a respondent in an AWA icense termination proceeding “failed to report his conviction.” Moreover, absent notice to APHIS by a member of the public, or a governmental official, or the licensee, APHIS would not necessarily learn that a licensee had been found to have violated a local, state, or federal law or regulation pertaining to animals. In this case, APHIS obtained certified copies of the filing in United States v. Timothy L. Stark, Case No. 4:07CR00013-001 (S.D. Ind.), in September 2014. See CX 2 (Information, Waiver of Indictment, Petition to Enter a Plea of Guilty, Plea Agreement, Rights Form, Report of Proceedings/Judgment in a Criminal Case bear certification on September 2, 2014, by the Clerk of the United States District Court for the Southern District of Indiana). Finally, the Judge cites no applicable statute of limitations barring APHIS from instituting this license termination action, pursuant to sections 2.11(a)(6) and 2.12 of the Regulations, based on the respondent’s 2008 conviction for violating the Endangered Species Act. The Judicial Officer has held that neither 28 U.S.C. § 2462 nor 18 U.S.C. § 3282(a) applies to AWA license termination proceedings. “Second, Loreon Vigne asserts 9 C.F.R. § 2.11(a)(6) contains no “statute of limitations” (Appeal Pet. at 1)While Ms. Vigne is correct that 9 C.F-R. § 2.11(a)(6) does not contain a statute of limitations, she cites no authority for her assertion that 9 C.P-R. § 2.11(a)(6) must contain a statute of limitations and I can find no such authority. The United States Code does contain @ general statute of limitations that applies to the commencement of certain actions, as follows: § 2462. Time for commencing proceedings. Except as otherwise provided by Act of Congress, an action, suit, or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon. 28 U.S.C. § 2462. However, a “penalty,” as that term is used in 28 U.S.C. § 2462, is a form of punishment imposed by the government for unlawful or proscribed conduet which goes beyond remedying the damage caused to the harmed parties by the respondent's actions.* The Acting Administrator secks to terminate Ms. Vigne's Animal Welfare Act license, not to punish her for her actions, but because Ms. Vigne's actions reflect on her fitness to be licensed under the Animal Welfare Act. Thus, I conclude the statute of limitations in 28 ULS.C. § 2462 is not applicable to an action by the Secretary of Agriculture to terminate an existing Animal Welfare Act license pursuant to 9 C.F.R. § 2.12, based upon a licensee's unfitness to continue to be licensed under the Animal Welfare Act. Termination of an Animal Welfare Act license pursuant to 9 C.F.R. § 2.12 is remedial in nature and thus outside the scope of the statute of limitations in 28 U.S.C. § 2462.” Inre Loreon Vigne, 67 Agric. Dec. 1060, 1067-68 (2008), “Second, Mr. Greenly contends the Chief ALJ erroneously concluded this proceeding is not time barred. Mr. Greenly asserts this proceeding is time barred by 18 US.C. § 3282(a) and 28 U.S.C. § 2462 because these statutes of limitations prohibit commencement of a proceeding more than 5 years after an offense has been committed. Mr. Greenly asserts he committed the Lacey Act offenses in September and October 2005 and the Administrator commenced this proceeding by filing the Order to Show Cause on November 29, 2010. (Appeal Pet. at 4-10.) The statute of limitations in 18 U.S.C. § 3282(a) limits the time within which 2 proceeding may be instituted after an offense, as follows: § 3282. Offenses not capital (a) IN GENERAL. —Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed. The purpose of the statute of limitations in 18 U.S.C. § 3282(a) is to limit exposure to criminal prosecution to a certain fixed time following occurrence of acts the legislature has decided to punish by criminal sanctions. This proceeding is an administrative proceeding not a criminal proceeding; therefore, I conclude the time bar in 18 U.S.C. § 3282(a) is not applicable to this proceeding. ‘The statute of limitations in 28 U.S.C. § 2462 provides, as follows: § 2462. Time for commencing proceedings Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine,penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon. A “penalty,” as that term is used in 28 U.S.C. § 2462, is a form of punishment imposed by the government for unlawful or proscribed conduct which goes beyond remedying the damage caused to the harmed parties by the respondent's actions. The Administrator does not seek to punish Mr. Greenly for his actions. Instead, the Administrator seeks termination of Mr. Greenly's Animal Welfare Act license because Mr. Greenly's actions reflect on his fitness to be licensed under the Animal Welfare Act. Thus, I conclude the statute of limitations in 28 U.S.C. § 2462 is not applicable to an action by the Secretary of Agriculture to terminate an existing Animal Welfare Act license pursuant to 9 C.F.R. § 2.12, based upon a licensee's unfitness to continue ta be licensed under the Animal Welfare Act. Termination of an Animal Welfare Act license pursuant to 9 C.F.R. § 2.12 is remedial and thus outside the scope of the statute of limitations in 28 U.S.C. § 2462.” Inre Greenly, 2013 WL 8213613, at *5-6 (July 2, 2013)(footnotes omitted). B, __ License Renewal Is Not the Same as the Issuance of an Initial License The Judge found that “[tJhe evidence fails to establish that the Administrator or APHIS. determined that the issuance of a license to Respondent would be contrary to the purposes of the Act.” Initial Decision and Orderat 6. ‘The Judge erred in equating “issuance” of an initial license with the renewal of an existing, valid license. “The terms “issue” and “renew” have distinct meanings.” ALDF v. U.S. Dep't of Agriculture, 789 F.3d 1206, 1218 (11" Cir, 2015)(finding that USDA’s administrative procedure for AWA license renewal was a reasonable policy choice entitled to deference). A copy of the 11" Circuit's opinion in ALDF is attached hereto. ‘ongress has prescribed what an exhibitor must do to obtain isswance of a license in the first instance, but Congress has not spoken precisely to the question of license renewal under the AWA. USDA in turn has adopted comprehensive renewal regulations. USDA’s renewal scheme requires Seaquarium to submit a form summarily certifying its regulatory compliance, a fee, and an annual report setting forth the number of exhibited animals. No annual inspection occurs. Given the thousands of exhibitors across the country and its limited tesourees, USDA conducts license renewal through a purely administrative procedure.” ALDE v. US. Dep't of Agriculture, 789 F.3d 1206, 1209-10 (11" Cir. 2015) First, as an initial matter, this is not a license denial case, where APHIS has determined that an initial license should not be issued, and denied a license application. Respondent Stark alreadypossesses a valid AWA license, 32-C-0204, which APHIS seeks to terminate. The issuance of an initial AWA license to an applicant is not the same as license renewal. ALDF y, U.S. Dep't of Agriculture, 789 F.3d 1206, 1222 (11" Cir. 2015)(“The regulations issued in 1967 establish USDA has long adhered to the interpretation that issuance and renewal are separate processes...”) “The parties dispute whether the word “issue” unambiguously encompasses the word “renew.” “Issue” is not defined in the AWA. In the absence of a statutory definition, “we look to the common usage of words for their meaning.” Consol. Bank, N.4., Hialeah, Fla, v. U.S. Dep't of Treasury, Office of Comptroller of Currency, 118 F.3d 1461, 1464 (11th Cir. 1997). “Issue” is defined, in the sense linguistically relevant to the circumstances here, as “to come out, go out,” “to proceed or come forth from a usually specified source.” or “to cause to appear or become available by officially putting forth or distributing or granting or proclaiming or promulgating.” WEBSTER’S NEW INTERNATIONAL DICTIONARY 1201 (3d ed. 1976).[footnote omitted] ‘The word “renew” is also not defined in the AWA, nor does it even appear anywhere in the statute. “Renew” means “to make new again,” “to restore to fullness or sufficiency,” or “to grant or obtain an extension of.” Jd. at 1922. Comparing these two definitions, we conclude the plain meaning of “issue” does not necessarily include “renew.” Rather than make a license “come out” or “go out,” one could store to fullness” a license that has already “come out” or “gone out.” In fact, that is precisely the type of licensing regime USDA has established under the AWA. USDA makes a license “go out” once an applicant has met the requirements for an issuance. After USDA. makes the license go out, it remains “valid and effective” unless the licensee fails to comply with the administrative renewal process. See 9 C.F-R. § 2.5(a) (stating a “license issued under this part shall be valid and effective” unless “revoked or suspended pursuant to section 19 of the Act”). No license is given out during the renewal process; instead, the exhibitor maintains the same license number.” ALDF vy. U.S. Dep't of Agriculture, 789 F.3d 1206, 1215-16 (11" Cir. 2015). “Moving beyond the AWA itself, a survey of § 2133's relationship to the whole United States Code shows issuing a license is not unambiguously the same as renewing one. See Green v, Bock Laundry Mach. Co., 490 U.S, 504, 528, 109 S. Ct. 1981, 1994 (1989) (Scalia, J., concurring) (remarking a statute should be understood in a manner “most compatible with the surrounding body of law into which the provision must be integrated ‘8 compatibility which, by a benign fiction, we assume Congress always has in mind”. Whereas Congress did not explicitly address renewal in the AWA, Congress has demonstrated an ability to address renewal when it intends to do so. See, .g., 7 U.S.C. § 85 (stating Secretary “may refuse to renew .. . any license”); 12 U.S.C. § 5105(a) (discussing “minimum standards for license renewal”); 16 U.S § 808 (setting forth detailed renewal process); 46 U.S.C. § 7106(a) (stating “license issued” may be “renewed for additional 5- year periods”); 47 U.S.C. § 1421(b)(2) (describing “renewal” of “initial license").” ALDF ¥. U.S. Dep't of Agriculture, 789 F.3d 1206, 1217 (11" Cir. 2015).Second, because the “issuance” of a license to the respondent is irrelevant and moot in this license termination proceeding, APHIS was not required to establish that “the Administrator or APHIS determined that the issuance of a license to Respondent would be contrary to the purposes of the Act.” Initial Decision and Order at 6. Finally, APHIS neither alleged nor sought to establish that an initial license should not be “issued” to the respondent (and APHIS was not required to do so). ‘The OSC specifically states that “[t]he Administrator has determined that the renewal of respondent’s license would be contrary to the purposes of the Act, and that said license should be terminated.” OSC at 2. That the APHIS Administrator made that determination cannot reasonably be disputed, as the Administrator of APHIS himself signed the OSC. Cc. That Al Annual) enewed AWA Lice 1-C-0204 levi ‘The Judge concluded that because APHIS had annually renewed the respondent's AWA 1D license, APHIS did not consider the respondent to be unfit. Init ion_and Order at 7 (Despite his convi ion, APHIS has routinely renewed Respondent's valid license under the AWA.”); Id. at 8 (“...USDA has failed to establish how Respondent could be determined unfit to hold an AWA license for an old conviction, which did not prevent APHIS from repeatedly thereafter issuing him the license which USDA seeks to terminate.”). “The evidence fails to establish that the Administrator of APHIS determined that the issuance of a license to Respondent would be contrary to the purposes of the Act. In fact, APHIS has renewed Respondent’s AWA license following his conviction, most recently in November, 2014. [footnote omitted]...Since APHIS has issued an AWA license to Respondent many times in years following his conviction for conduct occurring in 2004, and since the Show Cause Order rests solely upon that action, | find that it would be arbitrary and capricious for APHIS to now terminate Respondent’s license for conduct occurring more than ten years in the past, with no additional evidence impugning Respondent's fitness to hold an AWA license.” Id, at 6.‘The Judge erred in finding relevance in APHIS’s previous renewal of respondent’s AWA license. The Regulations require APHIS to renew licenses annually upon timely payment of license fees and submission of the renewal form and annual report, without more. 9 C.F.R. § 2.2(b)(*APHIS will renew a license after the applicant certifies by signing the application form that, to the best of the applicant’s knowledge and belief, he or she is in compliance with the regulations and standards and agrees to continue to comply with the regulations and standards, APHIS will supply a copy of the applicable regulations and standards to the applicant upon request.”), The AWA prohibits exhibitors[] from exhibiting any animals unless they “have obtained a license from the Secretary and such license shall not have been suspended or revoked.” 7 U.S.C. § 2134. “[NJo such license shall be issued” until the exhibitor “shall have demonstrated that his facilities comply with the standards promulgated by the Secretary.” /d. § 2133. In addition to this statutory command, the AWA vests USDA with the authority to “promulgate such rules, regulations, and orders as he may deem necessary in order effectuate the purposes” of the statute. 7 U.S.C. § 2151. Pursuant to this section, USDA has adopted comprehensive renewal regulations that combine purely administrative requirements, random inspections, and discretionary enforcement proceedings. On or before the expiration date of his or her one-year license, an exhibitor must submit a completed application form to the appropriate USDA regional office fulfilling three, purely administrative criteria, See 9 C.F.R. § 2.1(@). First, the exhibitor certifies by signing the application form that, to the best of her knowledge or belief, she is compliant and will continue to comply with all AWA animal wildlife standards. Id. § 2.2(b). Second, the exhibitor pays an annual fee calculated according to USDA’s fee schedule that varies according to the number of animals owned, held, or exhibited. Id. § 2.6. Third, the exhibitor submits an arinual report detailing the number of animals owned, held, or exhibited. Id. § 2.7(d). So long as an exhibitor meets these three criteria, even if her facility fails to compl with animal wildlife standards on the license expiration date, USDA must grant her a renewal. See id § 2.2(b) (stating “[USDA] will issue a license” after applicant fulfills administrative requirements). Otherwise, the license automatically terminates due to expiration. Id. § 2.5(b). ALDF y, US. Dep't of Agriculture, 789 F.3d 1206, 1211 (11" Cir. 2015)(emphasis added). ‘That APHIS renewed respondent's license in accordance with the licensing Regulations is irrelevant to whether the respondent's AWA license may be terminated based upon his violation of the Endangered Species Act. ‘There is no provision in the Regulations for simply declining torenew a valid license when the licensee has fully and timely complied with the renewal requirements, and doing so would violate due proc D. The Licens 1g Regulations Do Not Require a Showing That Animals Were Harmed In the findings of fact supporting the Judge’s Initial Decision and Order, the Judge stated that “[t]here is no evidence that Respondent's actions harmed the ocelot that was transferred, or any other animal.” Initial Decision and Order at 7. “The evidence also fails to support USDA’s allegation that Respondent ‘.,.has been found to have harmed the animals in his custody...” Show Cause Order, at 4 Respondent’s guilty plea clearly limits his violation of the Endangered Species Act in October, 2004, to one count in which Respondent agreed that he ‘did knowingly, intentionally and unlawfully receive, transport, and ship in interstate commerce an endangered species, namely, an ocelot he sold to an individual from Texas in the course of commercial activity...’ CX-2, at 1. In addition, samples of inspections of Respondent's facility conducted by APHIS over several years did not disclose that animals were harmed by Respondent. RX-C.” Initial Decision and Order at 6. First, there is no requirement that the complainant show that the ocelot was physically injured by respondent Stark. In Jn re Loreon Vigne, 67 Agric. Dec. 1060, 1067 (2008), the Secretary held that a license may be terminated based upon the licensee’s conviction for violating the Endangered Species — by illegally selling ocelots -- without any showing that the ocelots, or any’ other animals, were physically injured by the licensee. Second, the Judge correctly noted that in the OSC the complainant stated: “Permitting respondent Stark to continue to hold an AWA license would be contrary to the Act’s purpose of ensuring humane treatment of animals because respondent has been found to have harmed animals in his custody.” OSC at 2, The complainant explained the basis for that statement in complainant's response to respondent's motion to dismiss (which the Judge denied): Second, the statement in the OSC that “respondent has been found to have harmed animals in his custody” is supported by respondent's conviction of violating the Endangered Species Act by illegally receiving, selling, transporting and shipping an ocelot. Ocelots werelisted as endangered in 1982, are protected by the Endangered Species Act, and are listed Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Commercial trade of CITES Appendix | species is strictly prohibited. Respondents actions harmed occlots by taking and selling an ocelot, interfering with that particular animal's normal behavioral activities, and interfering with the welfare of the ocelot species as a whole.” Complainant's Response to Motion to Dismiss at 2. In a footnote, the complainant described the harm to animals that is determined to result from an illegal “take” of animals under the Endangered Species Act: 2“http://www.fws.gov/endangered/esa-library/pdflocelot. pdf. Once a species becomes listed as "endangered" or "threatened." it receives special protections by the federal government. The primary goal of the Endangered Species Act is to make species’ populations healthy and vital so they can be delisted from the Endangered Species Act. Animals are protected from “take” and being traded or sold, “Take" means to "harass, harm, pursue, hunt, shoot, wound, kill trap, capture, or collect, or to attempt to engage in any such conduct.” The law also protects against interfering in vital breeding and behavioral activities or degrading critical habitat.” Complainant's Response to Motion to Dismiss at Note 2. II Conclusion For the reasons outlined above, the complainant respectfully requests either that a final jon and order be decision be issued reversing the initial decision and order, or that the initial de vacated and this matter remanded to the Judge for issuance of a decision and order in conformance with the Regulations, departmental precedent, and relevant case law. DATED: February 11, 2016 spec! Colleen A. Carroll Attorney for Complainant