Respondents' facilities, animals, and records. In the absence of clear evidence to the contrary, public officers are presumed to have properly discharged their official duties." Therefore, I presume that these Animal and Plant Health Inspection "See United States v. Mezzanatto, 513 U.S. 196, 210 (1995) (stating the fact that there is potential for abuse of prosecutorial bargaining power is an insufficient basis for foreclosing plea negotiation; the great majority of prosecutors are faithful to their duties and absent clear evidence to the contrary, courts presume that public officers properly discharge their duties); INS v. Miranda, 459 U.S. 14, 18 (1982) (per curiam) (stating although the length of time to process the application is long, absent evidence to the contrary, the court cannot find that the delay was unwarranted); United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (stating a presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume they have properly discharged their official duties); Sunday Lake Iron Co. v. Wakefield TP, 247 U.S. 350, 353 (1918) (stating the good faith of taxing officers and the validity of their actions are presumed; when assailed, the burden of proof is on the complaining party); Chaney v. United States, 406 F.2d 809, 813 (5th Cir.) (stating the presumption that the local selective service board considered the appellant's request for reopening in accordance with 32 C.F.R. § 1625.2 is a strong presumption that is only overcome by clear and convincing evidence), cert. denied, 396 U.S. 867 (1969); Lawson Milk Co. v. Freeman, 358 F.2d 647, 649 (6th Cir. 1966) (stating without a showing that the action of the Secretary of Agriculture was arbitrary, his action is presumed to be valid); Donaldson v. United States, 264 F.2d 804, 807 (6th Cir. 1959) (stating the presumption of regularity supports official acts of public officers and in the absence of clear evidence to the contrary, courts presume they have properly discharged their duties); Panno v. United States, 203 F.2d 504, 509 (9th Cir. 1953) (stating a presumption of regularity attaches to official acts of the Secretary of Agriculture in the exercise of his congressionally delegated duties); Reines v. Woods, 192 F.2d 83, 85 (Emer. Ct. App. 1951) (stating the presumption of regularity which attaches to official acts can be overcome only by clear evidence to the contrary); NLRB v. Bibb Mfg. Co., 188 F.2d 825, 827 (5th Cir. 1951) (holding duly appointed police officers are presumed to discharge their duties lawfully and that presumption may only be overcome by clear and convincing evidence); Woods v. Tate, 171 F.2d 511, 513 (5th Cir. 1948) (concluding an order of the Acting Rent Director, Office of Price Administration, is presumably valid and genuine in the absence of proof or testimony to the contrary); Pasadena Research Laboratories, Inc. v. United States, 169 F.2d 375, 38182 (9th Cir.) (stating the presumption of regularity applies to methods used by government chemists and analysts and to the care and absence of tampering on the part of postal employees), cert. denied, 335 U.S. 853 (1948); Laughlin v. Cummings, 105 F.2d 71, 73 (D.C. Cir. 1939) (stating there is a strong presumption that public officers exercise their duties in accordance with law); In re Greenville Packing Co., 59 Agric. Dec. 194, 220-22 (2000) (stating that, in the absence of evidence to the contrary, Food Safety and Inspection Service inspectors are presumed to have properly issued process deficiency records), appeal docketed, No. 00-CV-1054 (N.D.N.Y. July 5, 2000); In re Dwight L. Lane, 59 Agric. Dec. 148, 177-78 (2000) (stating that a United States Department of Agriculture hearing officer is presumed to have adequately reviewed the record and no inference is drawn from an erroneous decision that the hearing officer failed to properly discharge his official duty to review the record), aff'd, A2-00-84 (D.N.D. July 18, 2001); In re Marilyn Shepherd, 57 Agric. Dec. 242, 280-82 (1998) (stating that, in the absence of clear evidence to the contrary, United States Department of Agriculture inspectors and investigators are presumed to have properly discharged their duty to document violations of the Animal Welfare Act); In re Auvil Fruit Co., 56 Agric. Dec. 1045, 1079 (1997) (stating without a showing that the official acts of the Secretary of Agriculture are arbitrary, his actions are presumed (continued...) 60 Agric. Dec. 647 Service inspectors were only motivated by the desire to properly discharge their official duties, and I reject Respondents' suggestion that these Animal and Plant Health Inspection Service inspectors had other motivations. For the foregoing reasons, Complainant's Petition for Reconsideration is granted. Section 1.146(b) of the Rules of Practice (7 C.F.R. § 1.146(b)) provides that the decision of the Judicial Officer shall automatically be stayed pending the determination to grant or deny a timely-filed petition for reconsideration.12 11(...continued) 12 to be valid); In re Kim Bennett, 55 Agric. Dec. 176, 210-11 (1996) (stating that instead of presuming United States Department of Agriculture attorneys and investigators warped the viewpoint of United States Department of Agriculture veterinary medical officers, the court should have presumed that training of United States Department of Agriculture veterinary medical officers was proper because there is a presumption of regularity with respect to official acts of public officers); In re C.I. Ferrie, 54 Agric. Dec. 1033, 1053 (1995) (stating use of United States Department of Agriculture employees in connection with a referendum on the continuance of the Dairy Promotion and Research Order does not taint the referendum process, even if petitioners show some United States Department of Agriculture employees would lose their jobs upon defeat of the Dairy Promotion and Research Order, because a presumption of regularity exists with respect to official acts of public officers); In re Mil-Key Farm, Inc., 54 Agric. Dec. 26, 55 (1995) (stating without a showing that the official acts of the Secretary of Agriculture are arbitrary, his actions are presumed to be valid); In re Hershey Chocolate U.S.A., 53 Agric. Dec. 17, 55 (1994) (stating without a showing that the official acts of the Secretary are arbitrary, his actions are presumed to be valid), aff'd, No. 1:CV-94-945 (M.D. Pa. Feb. 3, 1995); In re King Meat Co., 40 Agric. Dec. 1468, 1494 (1981) (stating there is a presumption of regularity with respect to the issuance of instructions as to grading methods and procedures by the Chief of the Meat Grading Branch, Food Safety and Quality Service, United States Department of Agriculture), aff'd, No. CV 81-6485 (C.D. Cal. Oct. 20, 1982), remanded, No. CV 81-6485 (C.D. Cal. Mar. 25, 1983) (to consider newly discovered evidence), order on remand, 42 Agric. Dec. 726 (1983), aff'd, No. CV 81-6485 (C.D. Cal. Aug. 11, 1983) (original order of Oct. 20, 1982, reinstated nunc pro tunc), aff'd, 742 F.2d 1462 (9th Cir. 1984) (unpublished) (not to be cited as precedent under 9th Circuit Rule 21); In re Gold Bell-I&S Jersey Farms, Inc., 37 Agric. Dec. 1336, 1361 (1978) (rejecting respondent's theory that United States Department of Agriculture shell egg graders switched cases of eggs to discredit respondent, in view of the presumption of regularity supporting acts of public officials), aff'd, No. 78-3134 (D.N.J. May 25, 1979), aff'd mem., 614 F.2d 770 (3d Cir. 1980). 12 In re Rafael Dominguez, 60 Agric. Dec. 210, 217 (2001) (Order Denying Pet. for Recons.); In re William J. Reinhart, 60 Agric. Dec. 241, 263 (2001) (Order Denying William J. Reinhart's Pet. for Recons.); In re Reginald Dwight Parr, 59 Agric. Dec. 629, 647 (2000) (Order Denying Respondent's Pet. for Recons.); In re Mangos. Plus, Inc., 59 Agric. Dec. 883, 890 (2000) (Order Denying Pet. for Recons.); In re Kirby Produce Co., 58 Agric. Dec. 1032, 1040 (1999) (Order Denying Pet. for Recons.); In re James E. Stephens, 58 Agric. Dec. 201, 209 (1999) (Order Denying Pet. for Recons.); In re Michael Norinsberg, 58 Agric. Dec. 619, 625 (1999) (Order Denying Pet. for Recons. on Remand); In re Sweck's, Inc., 58 Agric. Dec. 222, 227 (1999) (Order Denying Pet. for Recons.); In re Produce Distributors, Inc., 58 Agric. Dec. 535, 540-41 (1999) (Order Denying Pet. for Recons. as to Irene T. (continued...) Complainant's Petition for Reconsideration was timely filed and automatically stayed the June 13, 2001, Decision and Order. Since Complainant's Petition for Reconsideration is granted, the Order in the Decision and Order issued June 13, 2001, is not reinstated. For the foregoing reasons and the reasons in In re Karl Mitchell, 60 Agric. Dec. 91 (2001), the following Order should be issued. ORDER 1. Respondents, their agents, employees, successors, and assigns, directly or indirectly through any corporate or other device, shall cease and desist from violating the Animal Welfare Act and the Regulations and Standards. The cease and desist provisions of this Order shall become effective on the day after service of this Order on Respondents. 2. Respondents are jointly and severally assessed a $16,775 civil penalty. The civil penalty shall be paid by certified check or money order, made payable to the Treasurer of the United States. Respondents shall send the certified check or money order to: Colleen A. Carroll United States Department of Agriculture 12(...continued) Russo, d/b/a Jay Brokers); In re Judie Hansen, 58 Agric. Dec. 369, 387 (1999) (Order Denying Pet. for Recons.); In re Daniel E. Murray, 58 Agric. Dec. 77, 83 (1999) (Order Denying Pet. for Recons.); In re David M. Zimmerman, 58 Agric. Dec. 336, 338-39 (1999) (Order Denying Pet. for Recons.); In re C.C. Baird, 57 Agric. Dec. 1284, 1299 (1998) (Order Denying in Part and Granting in Part Pet. for Recons.); In re JSG Trading Corp., 57 Agric. Dec. 710, 729 (1998) (Order Denying Pet. for Recons. as to JSG Trading Corp.); In re Peter A. Lang, 57 Agric. Dec. 91, 110 (1998) (Order Denying Pet. for Recons.); In re Jerry Goetz, 57 Agric. Dec. 426, 444 (1998) (Order Denying Respondent's Pet. for Recons. and Denying in Part and Granting in Part Complainant's Pet. for Recons.); In re Allred's Produce, 57 Agric. Dec. 799, 801-02 (1998) (Order Denying Pet. for Recons.); In re Michael Norinsberg, 57 Agric. Dec. 791, 797 (1998) (Order Denying Pet. for Recons.); In re Tolar Farms, 57 Agric. Dec. 775, 789 (1998) (Order Denying Pet. for Recons.); In re Samuel Zimmerman, 56 Agric. Dec. 1458, 1467 (1997) (Order Denying Pet. for Recons.); In re Kanowitz Fruit & Produce Co., 56 Agric. Dec. 942, 957 (1997) (Order Denying Pet. for Recons.); In re Volpe Vito, Inc., 56 Agric. Dec. 269, 275 (1997) (Order Denying Pet. for Recons.); In re City of Orange, 56 Agric. Dec. 370, 371 (1997) (Order Granting Request to Withdraw Pet. for Recons.); In re Five Star Food Distributors, Inc., 56 Agric. Dec. 898, 901 (1997) (Order Denying Pet. for Recons.); In re Havana Potatoes of New York Corp., 56 Agric. Dec. 1017, 1028 (1997) (Order Denying Pet. for Recons.); In re Saulsbury Enterprises, 56 Agric. Dec. 82, 101 (1997) (Order Denying Pet. for Recons.); In re Andershock Fruitland, Inc., 55 Agric. Dec. 1234 (1996) (Order Denying Pet. for Recons.). 60 Agric. Dec. 669 Office of the General Counsel Marketing Division 1400 Independence Avenue, SW Room 2343-South Building Washington, DC 20250-1417 The certified check or money order shall be sent to, and received by, Ms. Carroll within 60 days after service of this Order on Respondents. Respondents shall state on the certified check or money order that payment is in reference to AWA Docket No. 01-0016. 3. Respondents' Animal Welfare Act license (Animal Welfare Act license number 88-C-0076) is revoked. The Animal Welfare Act license revocation provisions of this Order shall become effective on the 60th day after service of this Order on Respondents. 4. Respondents have the right to seek judicial review of this Order in the appropriate United States Court of Appeals in accordance with 28 U.S.C. §§ 2341, 2343-2350. Such court has exclusive jurisdiction to enjoin, to set aside, to suspend (in whole or in part), or to determine the validity of this Order. Respondents must seek judicial review within 60 days after entry of this Order. 7 U.S.C. § 2149(c). The date of entry of this Order is August 8, 2001. In re: DIANA DALTON. Dismissal Order. Filed November 8, 2001. Motion to Dismiss Robert A. Ertman, for Complainant Respondent, Pro se. Order issued by Dorothea A. Baker, Administrative Law Judge. Upon motion of the Complainant and for good cause shown, the complaints in the matter are dismissed, without prejudice. In re: VILLAGE WHOLESALE, INC., AND FRANCIS ENGLERT, JR. AWA DOCKET NO. 00-0012. Dismissal Order Filed November 8, 2001. Motion to Dismiss Robert A. Ertman, for Complainant Respondent, Pro se Order issued by Dorothea A. Baker, Administrative Law Judge. Upon motion of the Complainant and for good cause shown, the complaints in the matter are dismissed, without prejudice. In re: DALE GOODALE. Filed December 11, 2001. Animal welfare - Dealer - Remand. The Judicial Officer vacated Chief Administrative Law Judge James W. Hunt's (Chief ALJ) default decision and remanded the proceeding to the Chief ALJ to give Respondent a hearing. Brian Thomas Hill, for Complainant. Respondent, Pro se. Initial decision issued by James W. Hunt, Chief Administrative Law Judge. PROCEDURAL HISTORY The Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding by filing a "Complaint" on October 23, 2000. Complainant instituted the proceeding under the Animal Welfare Act, as amended (7 U.S.C. §§ 2131-2159) [hereinafter the Animal Welfare Act]; the regulations issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-2.133) [hereinafter the Regulations]; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130.151) [hereinafter the Rules of Practice]. |