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HAROLD
P. KAFKA v. USDA
60 Agric. Dec. 23
Part 1 (General)
ANIMAL WELFARE
ACT
COURT DECISION
HAROLD P. KAFKA
v. SECRETARY OF AGRICULTURE.
No. 99-5313.
Filed May 25,
2001.
(Cite as 259
F.3d 716 (3d Cir.)).
Animal Welfare Act - Default - Jurisdiction
of Judicial Officer - Prior violation - Final decision - Untimely appeal.
The United States Court of Appeals, Third
Circuit, upheld the Judicial Officer’s (JO) decision. The JO found that under the regulations at 7 C.F.R. § 1.145, the
Administrative Law Judge’s (ALJ) decision became final and effective after 35 days
and the JO was without jurisdiction to review the ALJ’s decision when the
Respondent’s appeal petition was not timely filed.
Respondent was Pro se and failed to
file a timely response to the underlying Complaint whereupon, the ALJ entered a
default decision against him.
Respondent had a civil penalty from a prior Complaint which was
suspended and which was re-instituted as a result of this case.
United States
Court of Appeals
Third Circuit
Before:
SCIRICA, RENDELL and FUENTES, CIRCUIT JUDGES
PER CURIAM
On July 7, 1998, the Administrator of the
Animal and Plant Health Inspection Service (the “Administrator”) filed a
complaint alleging that Petitioner Harold Kafka exhibited animals without a
license in violation of the Animal Welfare Act. 7 U.S.C. §§ 2131-2159 (1999),
and the regulations thereunder, 9 C.F.R. §§ 1.1-4.11 (1999). The complaint directed Petitioner to file a
timely answer and stated that a failure to do so would be an admission of the
allegations in the complaint.
In serving the complaint, the hearing
clerk notified Petitioner by letter that he had twenty days from its receipt to
answer and that a failure to do so would be an admission of the allegations and
would waive his right to a hearing. The
hearing clerk provided Petitioner a copy of the Rules of Practice governing the
proceedings. These documents were
served on Petitioner, as shown by a certified mail receipt, on September 18,
1998.[1] On October 14, 1998, the hearing clerk
notified Petitioner that the Department did not receive a timely answer to the
complaint. On October 21, 1998, the
hearing clerk received a letter from Petitioner stating, “At this time I am
responding to Complaint and am not guilty and I am sure I will hear from you soon.”
The
Administrator filed a Motion for Adoption of Proposed Decision and Order on
October 29, 1998. The Administrator asserted that the hearing clerk served the
complaint and the Rules of Practice on Petitioner and informed him that the
failure to answer any allegation in the complaint would be an admission of that
allegation and Petitioner failed to file a timely answer. Since Petitioner admitted the allegations by
default, the Administrator moved for the adoption of an order assessing a civil
penalty of $5,000 for violation of the Animal Welfare Act. In addition, Respondent sought the
assessment of a civil penalty of $22,500 which was imposed upon Petitioner in a
prior proceeding but was suspended upon the condition that Petitioner not
violate the Animal Welfare Act for a period of twenty years. On November 2, 1998, the hearing clerk sent
Petitioner by certified mail a copy of the motion and proposed decision and
order and informed him that he had twenty days from their receipt to file
objections. Petitioner received the
documents on November 5 as shown by a certified mail receipt.
Having received no objections, on December
1, 1998, an Administrative Law Judge (“ALJ”) ruled that Petitioner failed to
timely answer the complaint and its allegations were deemed admitted. The ALJ thus found that Petitioner exhibited
animals without a license in violation of the Animal Welfare Act and the
regulations thereunder and assessed the civil penalties of $5,000 and
$22,500. The order stated that it would
be effective after becoming final thirty-five days after service, pursuant to
the Rules of Practice. The hearing
clerk sent Petitioner by certified mail a copy of the decision and order and
notified him that he had thirty days from their service to appeal to a Judicial
Officer. The hearing clerk also
informed Petitioner that if he did not appeal, the ALJ’s decision is binding
and effective thirty-five days after its service and that no decision is final
for purposes of judicial review except a final order issued by the Secretary of
the Department of Agriculture or a Judicial Officer pursuant to an appeal. The documents were returned marked
“unclaimed” and on January 14, 1999, a legal technician served them by regular
mail pursuant to the Rules of Practice.
On February 2, 1999, the hearing clerk received
a letter from Petitioner requesting an appeal and stating that while he had
previously plead not guilty, he did not hear from the hearing clerk until he
received the ALJ’s decision. Petitioner
requested information about how to file an appeal. On February 3, 1999, a hearing clerk sent Petitioner a letter
enclosing a copy of his filing, and stating, that the Administrator had twenty
days to respond. The Administrator
filed a memorandum arguing that since Petitioner failed to timely answer the
complaint, the ALJ’s decision and order were properly entered. The Administrator
described its filing as opposition to Petitioner’s motion to set aside the
default decision.
On March 1, 1999, a Judicial Officer ruled
that Petitioner’s February 2 letter did not conform to the requirements for an
appeal petition and did not move to vacate the ALJ’s decision. Rather, the letter was a request for
information. The Judicial Officer granted
the request and directed Petitioner to the applicable provision of the Rules of
Practice. The Judicial Officer also
advised Petitioner that a default decision becomes final thirty-five days after
service and since the record indicates that he was served on January 14, 1999,
the ALJ’s decision became final on
February 18. Citing, numerous agency
decisions, the Judicial Officer stated that he has no jurisdiction to hear an
appeal that is filed after a decision becomes final. He stated that he could only consider an appeal petition if Petitioner showed that the record does
not accurately reflect when he was served with the ALJ’s decision and that he
filed an appeal petition within thirty-five days of the date on which he was
served.
On March 5, 1999, Petitioner responded by
letter stating that he believed he had twenty days from February 15 to appeal,
that he has been trying to file an appeal and that he was denied his right to a
hearing. Petitioner also submitted a
document allegedly supporting that he did not violate the Animal Welfare Act. On the same date, the hearing clerk sent
Petitioner a letter enclosing a copy of his filing and stating that the
Administrator would have twenty days to respond. The Administrator again argued in response that since Petitioner
failed to file a timely answer to the complaint, the
ALJ’s decision was proper and further argued that the appeal petition is
untimely.
On April 5, 1999, the Judicial Officer
ruled that Petitioner’s appeal petition is untimely. In response to his contention that he had twenty days from
February 15 to appeal, the Judicial Officer found that the correspondence sent
to Petitioner at this time was the letter informing him that the Administrator
had twenty days to respond to his February 2 letter. While Petitioner stated that he had been trying to file his
appeal, the Judicial Officer found that despite any efforts that Petitioner may
have made, he did not file an appeal petition until March 5. The Judicial
Officer concluded again that since the ALJ’s decision was served on January 14,
1999 and became final on February 18, he no longer has jurisdiction to consider
the appeal. The Judicial Officer found
this construction of the Rules of Practice consistent with the construction of
Federal Rules of Appellate Procedure and further stated that the matter should
not be considered by a reviewing court since under § 1.139 of the Rules of
Practice, no decision is final for purposes of judicial review except a final
decision of the Judicial Officer on appeal.
The Judicial Officer ordered that the ALJ’s decision is the final
decision in this proceeding. Petitioner
filed a timely petition for review.
This Court has
jurisdiction to review a final order of the Secretary of Agriculture pursuant
to 7 U.S.C. § 2149(c) and 28 U.S.C. § 2342.
While the petition for review refers to the ALJ’s decision that
Petitioner violated the Animal Welfare Act, this Court has no jurisdiction to
review that decision. The only issue
before this Court is whether the Judicial Officer[2] erred in
finding that he does not have jurisdiction to hear Petitioner’s appeal.
The Rules of Practice governing Department
of Agriculture proceedings address the time for filing an appeal to a Judicial
Officer. The regulations provide:
Within 30 days
after receiving service of the Judge’s decision, a party who disagrees with the
decision, or any part thereof, or any ruling by the Judge or any alleged
deprivation of rights, may appeal such decision to the
Judicial Officer by filing an appeal petition with the Hearing Clerk.
7 C.F.R. §
1.145. The Rules of Practice further
provide that the ALJ’s decision becomes final and effective thirty-five days
after the date it is served. Id.
§ 1.139. The Department of Agriculture has consistently held that the Judicial Officer has no
jurisdiction to hear an appeal that is filed after the ALJ’s decision becomes
final. See, e.g., In
re Ow Duk Kwon, d/b/a Kwang Dong Chinese Herbs Enterprise, Inc., et al., 55
Agric. Dec. 78, 83 (1996)(citing cases).
The Department has found this construction of the Rules of Practice
consistent with the rule of law that federal courts of appeals are without
jurisdiction to review a decision where a notice of appeal is untimely. See id. at 84; see also Budinich
v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988)(stating rule
regarding untimely notice of appeal under the Federal Rules of Appellate
Procedure).
An agency’s interpretation of the statute
it administers is entitled to deference, provided that its interpretation is a
permissible construction of the statute.
Dep’t of the Navy v. Federal Labor Relations Authority, 836 F.2d
1409, 1410 (3d Cir. 1988). An agency
decision may only be overturned if “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Id. (quoting 5 U.S.C. § 706(2)(A)). The Judicial Officer’s findings that
Petitioner received service of the ALJ’s decision on January 14, 1999 and filed
his appeal petition on March 5 are supported by the record.[3] In addition, the March 5 filing is untimely
under § 1.14 5 of the Rules of Practice.
We cannot find that the Judicial Officer’s decision that he was without
jurisdiction to review the ALJ’s decision was arbitrary, capricious, an abuse
of discretion or otherwise not in accordance with the law. Accordingly, we will deny the petition for
review.[4]
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