61 Agric. Dec. 19 desist order for any violation of the Animal Welfare Act or any regulation promulgated thereunder' our review in this case narrows to whether the relevant penalties are "without justification in fact." A. The Violations In our prior opinion, we addressed the Secretary's finding that Hodgins Kennels committed fifty-eight violations and the Secretary's decision to impose a $13,500 fine, issue a cease and desist order, and suspend Hodgins Kennels' license. While we found that the record did not support the majority of violations or a license revocation, we noted that a small fine might be appropriate for a series of relatively minor violations. While we assume familiarity with our prior opinion, we discuss relevant portions of our prior decision below. 1. Recordkeeping In our prior opinion we summarized the facts underlying the recordkeeping violations as follows: On January 18, 1994, Hodgins Kennels had rabbits and goats with no records. On March 1, 1994, Hodgins Kennels was cited for a pig with no record of acquisition. At the next inspection, April 5, 1994, the pig's record had been corrected, but there were five dogs and one cat on the records that were not present in the facility. On May 10 and June 23, 1994, the inspectors counted one fewer dog in the facility than the records showed. Hodgins, 2000 WL 1785733, at *17. We acknowledged that "a minimal fine might be supportable" for these violations. Id. On remand, the Secretary ruled that Hodgins Kennels committed 'Section 2149(b) provides in pertinent part: Any dealer ... subject to section 2141 of this title that violates any violation, and the Secretary may also make an order that such person 7 U.S.C. § 2149(b) (1999). five violations of the relevant recordkeeping provisions, 7 U.S.C. § 2140 and 9 C.F.R. § 2.75. 2. Structural Requirements We recounted the Department's factual findings regarding structural violations, detailing: The November 16, 1993, inspection reportedly found some broken cement blocks, a door with a poorly-patched hole, gaps underneath two doors, and cracking concrete. The January 18, 1994 inspection allegedly disclosed that some wall panels were loose or missing, and that ceiling panels in the cat building needed repair. It also alleged that a door was falling apart. The March 1, 1994 inspection disclosed that the “main barn ceiling had missing panels" and that the roof was leaking in another building (citation omitted) . . . . The April 5, 1994, report stated that a barn ceiling was poorly repaired, “leaving exposed insulation and holes" The Hodgins were also cited several times [on September 13, 1994, and November 22, 1994] for bent or broken pen-wires, which (as Dr. Vaupel testified) is the natural and unavoidable result of keeping often-rowdy animals in cages. Id. at 17-*18. .... As with the record keeping infractions, we ruled that the record did not support a license revocation, but accepted that "a minimal fine might be supportable." Id. at *18. On remand, the Secretary concluded that the record supported a finding of six violations of 9 C.F.R. § 3.1(a), the operative structural regulation. 3. Food Storage In our prior opinion, we also discussed the two food storage violations presently at issue. We noted that during inspections on March 1 and September 13, 1993 the Department found (1) paint stored with the animal's feed and (2) the animal's feed stored in the same room as gasoline. We ruled that these violations were not willful and thus could not support a license revocation, but did not question the evidence regarding the actual violation. Id. The Secretary, on remand, concluded that the record supported a finding that Hodgins Kennels committed two violations of 9 C.F.R. § 3.1(e). 4. Space Requirements 61 Agric. Dec. 19 With respect to the space requirement violation, we noted the Department's finding that Hodgins Kennels housed too many dogs in a pen together on January 18, 1994; nine dogs were in a pen that the inspectors said should have had only eight dogs. Id. at *23. Although we acknowledged that "a small fine might be supportable," the Secretary, citing the de minimis nature of the violation and the confusing methodology governing space calculation, did not impose a fine for this offense, an otherwise finable violation of 9 C.F.R. § 3.6(a)(2)(xi). 5. Primary Conveyance Lastly, we detailed that Department inspectors found a McDonald's napkin and a can of WD-40 oil in the back of the van, and a McDonald's wrapper in between the two passenger seats during a November 22, 1994 inspection. Id. at *27. Like the space requirement violation, the Secretary also characterized the violation of 9 C.F.R. § 3.15 as de minimis and granted Hodgins Kennels' request that no fine be imposed. B. The $325 Fine In light of the factual record, we cannot conclude that the Secretary's imposition of a $325 fine was "without justification in fact." The factual record provides sufficient evidence that Hodgins Kennels committed the fifteen violations at issue. While we agree with Hodgins Kennels' characterization that these are minor violations, the Secretary nevertheless has the statutory authority to remedy these violations. In fulfilling its statutory obligation to safeguard the “humane care and treatment" of animals for "use in research facilities," 7 U.S.C. § 2131, the Act authorizes the Secretary to remedy any violation, not only willful or particularly egregious violations. While these violations plainly could not support a license revocation, they adequately support the minimal $325 fine imposed by the Secretary. C. The Cease and Desist Order As a practical matter, the Secretary's decision to impose a cease and desist order may have been a bit overzealous. The violations underlying this appeal are not only minor, but they occurred approximately eight years ago and have long since been corrected. Hodgins Kennels has apparently learned from these prior violations because in the past four years, it has achieved perfect compliance with the Animal Welfare Act rules and regulations. Thus, the Secretary probably did not need the additional firepower of a cease and desist order and the accompanying option to impose a fine for any future violation of the Act and for violation of the cease and desist order to ensure Hodgins Kennels' compliance. Accordingly, we share Hodgins Kennels' concern that a standing cease and desist order, coupled with the prospect of a double penalty for any violation of the Act, however trivial, might lead to an unduly severe and disproportionate punishment. Nevertheless, given the factual record and the language of section 2149(b), we cannot conclude that the Secretary's decision to issue a cease and desist order was either "unwarranted in law" or "without justification in fact." And while we are concerned about the potential limitless reach of the cease and desist order, we are ultimately confident that the Secretary, in addressing any future violation by Hodgins Kennels, will give due consideration to Hodgins Kennels' recent compliance and the relatively distant nature of the violations at issue in this case. III. Hodgins Kennels also argues that the Secretary impermissibly assumed the role of Department advocate on remand. According to Hodgins Kennels, the Department's decision to submit only a Recommendation for Sanction and its failure to submit supplemental briefing forced the Secretary into performing the Department's advocacy function. In light of the extensive record in this case, including the Department's prior briefing, the Department's extensive factual findings and our prior opinion, we cannot conclude that the Department's decision to submit only a Recommendation for Sanctions transformed the Secretary from neutral arbiter to Department advocate. Therefore, we reject Hodgins Kennels' argument that the Secretary improperly assumed the role of advocate on remand. IV. For the foregoing reasons, we AFFIRM the Secretary's order of a $325 fine and issuance of a cease and desist order. 61 Agric. Dec. 25 ANIMAL WELFARE ACT DEPARTMENTAL DECISIONS In re: STEVEN BOURK, CARMELLA BOURK, AND DONYA BOURK. AWA Docket No. 01-0004. Decision and Order as to Steven Bourk and Carmella Bourk. Filed January 4, 2002. AWA Failure to file answer Default - Dealer – License - Appointed counsel - Public officials - Presumption of regularity – Sanction policy – Civil penalty – License disqualification - Cease and desist order. The Judicial Officer (JO) reversed the Default Decision issued by Chief Administrative Law Judge James W. Hunt. The JO deemed Respondents' failure to file a timely answer to the complaint an admission of the allegations in the complaint (7 C.F.R. § 1.136(c)) and a waiver of hearing (7 C.F.R. § 1.139). The JO concluded Respondents operated as dealers as defined in the Animal Welfare Act (7 U.S.C. § 2132(f)) and the Regulations (9 C.F.R. § 1.1) without an Animal Welfare Act license, in willful violation of 7 U.S.C. § 2134 and 9 C.F.R. § 2.1. The JO ordered Respondents to cease and desist from violating the Animal Welfare Act and the Regulations; assessed Respondents, jointly and severally, a $5,000 civil penalty; and disqualified Respondents from obtaining an Animal Welfare Act license for 30 days. The JO held the Chief ALJ erroneously concluded Donya Bourk violated the Animal Welfare Act and the Regulations because Complainant had previously withdrawn the Complaint as to Donya Bourk and, at the time the Chief ALJ issued the Default Decision, Donya Bourk was not a party to the proceeding. The JO rejected Respondent Carmella Bourk's contention that the Chief ALJ had not read her objections to the Complainant's motion for a default decision and proposed default decision, stating, in the absence of evidence to the contrary, public officers are presumed to have properly discharged their duties. The JO further stated that, under the Rules of Practice (7 C.F.R. § 1.139), the Chief ALJ had the duty to read and consider Respondent Carmella Bourk's timely-filed objections and the record contained no indication that the Chief ALJ failed to properly perform his duty. The JO rejected Respondent Steven Bourk's request that he be provided with counsel stating that a respondent who is unable to obtain counsel has no right under the Constitution, the Administrative Procedure Act, or the Rules of Practice to have counsel provided by the government in disciplinary administrative proceedings conducted under the Animal Welfare Act. Brian T. Hill, for Complainant. Respondents Steven Bourk and Carmella Bourk, Pro se. Initial decision issued by James W. Hunt, Chief Administrative Law Judge. Decision and Order issued by William G. Jenson, Judicial Officer. PROCEDURAL HISTORY William R. DeHaven, Acting Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter |