UNITED STATES DEPARTMENT OF AGRICULTURE

BEFORE THE SECRETARY OF AGRICULTURE

In re:
	Fabrizius Livestock, a Colorado corporation,	AHPA/CTESA Docket No. 21-J-0062
	Respondent.

OPINION ASSESSING CIVIL PENALTY AGAINST RESPONDENT

Appearances:

Danielle Park, Esq., with the Office of the General Counsel, United States Department of Agriculture, Washington, DC, for the Complainant, Administrator, Animal and Plant Health Inspection Service (“APHIS”)

Thomas D. Grant, Esq., of Grant & Hoffman Law Firm, P.C., Greeley, Colorado, for the Respondent, Fabrizius Livestock

Before Tierney M. Carlos, Administrative Law Judge               

I. Introduction

             This is a proceeding under the Animal Health Protection Act, as amended (7 U.S.C. §§ 8301 et seq.) (“AHPA”); the Commercial Transportation of Equine for Slaughter Act (7 U.S.C. § 1901 note) (“CTESA”); and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (“Rules of Practice”) (7 C.F.R. §§ 1.130 et seq.). The matter initiated with a complaint filed on August 24, 2021 by the Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture, alleging that Jason Fabrizius, doing business as Fabrizius Livestock, violated the AHPA and its regulations (9 C.F.R. Parts 71, 75, and 86) and the CTESA and its regulations (9 C.F.R. Part 88).[1]

 II. Procedural History

On August 24, 2021, the Administrator (“Complainant”) filed with the USDA Hearing Clerk a complaint against Jason Fabrizius, doing business as Fabrizius Livestock (“Respondent” or “Fabrizius”).[2] The Complaint alleged that Respondent was engaged in the business of buying and selling equine, including the transport of equines intended for slaughter, and was an owner/shipper as defined in 9 C.F.R. § 88.1. The Complaint alleged that on July 18, 2018, Respondent purchased fourteen horses intended for slaughter from an auction company in Nebraska, failed to prepare and sign owner/shipper certificates for the fourteen horses, and then commercially transported the fourteen horses to Respondent’s facility in Colorado without owner/shipper certificates in violation of 9 C.F.R. § 88.4(a)(3). The Complaint further alleged that between June and October 2018, Respondent moved fifty horses in nineteen separate incidents without the required interstate certificates of veterinary inspections in violation of 9 §§ C.F.R. 86.5(a) and (f). In addition, the Complaint alleged that on August 20, 2018, Respondent failed to exercise reasonable diligence to ascertain whether a horse was affected with any contagious, infectious, or communicable disease before offering the horse for interstate transportation and Respondent moved that horse, affected with equine infectious anemia (“EIA”), from Colorado to Wyoming in violation of 9 C.F.R. § 71.3(f).           

            On November 1, 2021, Respondent filed an answer and request for oral hearing with the USDA Hearing Clerk. The Answer admitted the jurisdictional allegations of the Complaint. Respondent admitted the allegations that he had purchased fourteen horses intended for slaughter in Nebraska, failed to prepare owner/shipper certificates for any of the horses, and commercially transported the horses to his facility in Colorado without the required owner/shipper certificates.  With respect to the alleged violations of 9 C.F.R. §§ 86.5(a) and (f), Respondent stated he had sold the horses to various buyers and that the buyers were responsible for the movement of the horses. He also stated that he was not the shipper/owner and was not responsible for the movement of the horses. Regarding the alleged violation of 9 C.F.R. § 71.3(f), Respondent denied that he had failed to exercise reasonable diligence. Finally, the Answer requested an oral hearing.

On November 4, 2021, I issued an order (“Exchange Order”) setting deadlines for submissions by the parties. The Exchange Order gave Complainant until December 6, 2021 to file with the Hearing Clerk a list of exhibits and witnesses and to send copies of its exhibits and list to Respondent. Respondent was given until January 20, 2022 to do the same.

On January 20, 2022, Respondent filed an unopposed motion for extension of time requesting an additional fourteen days to comply with the Exchange Order. In support thereof, Respondent stated that “the parties discussed [that day] the desire to work toward a resolution of this matter.”[3]

By early February the parties indicated they were unable to reach an agreement to resolve the matter, and on February 10, 2022 I scheduled a hearing for April 5 to 7, 2022.

On February 25, 2022, I was informed by Complainant that

[t]he parties [were] largely in agreement to the facts of the case and believe[d] that the legal arguments [could] be resolved via motions or briefing, and thus save the need to conduct a zoom hearing at all or at least shorten the amount of time required for the hearing.[4]

During a telephone conference on March 2, 2022, I was informed that the parties agreed on most of the facts of the case but disagreed on the legal issue of whether Respondent was a “persons responsible” under 9 C.F.R.  § 86.5(a).

On March 2, 2022, I issued an order setting a briefing schedule for the parties. The Order directed, inter alia, the parties to jointly file a written stipulation of facts and Complainant to file a motion for determination of legal issue(s) and supporting brief by April 5, 2022.[5] On that same date I cancelled the virtual hearing scheduled for April 5 to 7, 2022.

The Complainant filed two unopposed requests for extension of time to file the parties’ joint stipulation of facts and Complainant’s motion for determination of legal issue(s) and supporting brief.

On April 21, 2022, Complainant filed a motion for leave to file an amended complaint (“Motion to Amend Complaint”).[6] Complainant sought leave to amend the Complaint by substituting Fabrizius Livestock, a Colorado corporation, as the named Respondent.[7]

On April 26, 2022, Complainant filed a motion requesting a stay of submission deadlines (“Motion for Stay”).

On April 27, 2022, I held a telephone conference with the parties to address Complainant’s Motion to Amend Complaint and second request for extension of time to file its brief on the legal issue of whether Respondent was a “persons responsible.” Following the telephone conference, I denied Complainant’s Motion for Stay and issued an order amending the briefing schedule.[8]

On May 10, 2022, the parties filed their Stipulations as to Facts (“Stipulations”).[9]

On May 11, 2022, Respondent filed objections to Complainant’s Motion to Amend Complaint.[10]

On May 11, 2022, Complainant filed a motion for Summary Judgment. The Motion for Summary Judgment included a legal argument of why Respondent was a “persons responsible” under 9 C.F.R. § 86.5(a).

On May 24, 2022, I granted Complainant’s Motion to Amend Complaint. On the same date, Complainant filed its Amended Complaint.

On May 25, 2022, Respondent filed an unopposed motion for extension of time to file a response to Complainant’s Motion for Summary Judgment. On the same date, I issued an order granting Respondent’s Motion and extending the deadlines set forth in the amended briefing schedule.[11]

            On June 3, 2022, Respondent filed his Response to Complainant’s Motion for Summary Judgment and Respondent’s Opening Brief Regarding Determination of Legal Issues. 

            On June 9, 2022, Complainant filed its Response to Respondent’s Response to Complainant’s Motion for Summary Judgment.

            On June 10, 2022, Respondent filed his Answer to the Amended Complaint.

            On June 16, 2022, Respondent filed his Sur-Reply to Complainant’s Motion for Summary Judgment.

On July 5, 2022, I issued an opinion finding Respondent a “persons responsible” within the meaning of 9 C.F.R § 86.5(a) and denying Complainant’s Motion for Summary Judgment. 

On July 15, 2022, I held a telephone conference to obtain a status of the case. Both parties agreed that based upon my decision finding Respondent a “persons responsible,” there were no disputed facts that required a hearing.  However, the parties were unable to reach an agreement as to a civil penalty. I set a hearing date of August 30, 2022 to give both parties an opportunity to present evidence for me to consider to determine an appropriate civil penalty.

The hearing took place virtually, as scheduled, on August 30, 2022. Evidence was presented by Complainant and Respondent; however, additional time was needed to conclude Respondent’s evidence. Therefore, the hearing was continued until September 14, 2022. 

The hearing resumed on September 14, 2022, during which Respondent concluded its evidence. Both parties gave closing arguments and confirmed they would not file any post-hearing briefs. The hearing concluded, and the record is now closed.

III. Statutory and Regulatory Authority

A.    Animal Health Protection Act

Congress enacted the Animal Health Protection Act (7 U.S.C. §§ 8301-8316) (“AHPA”) to protect animal health and “the agriculture, environment, economy, and health and welfare of the people of the United States.”[12] To that end, the AHPA authorizes the Secretary of Agriculture to prohibit or restrict “the movement in interstate commerce of any animal . . . if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction or dissemination of any pest or disease of livestock.”[13] Pursuant to this authority, the Secretary has promulgated regulations to detect, control, and eradicate diseases[14] such as equine infectious anemia (“EIA”), a viral disease affecting members of the Equidae family (horses, ponies, zebras, mules, and donkeys) for which no vaccine or treatment is available.[15]

In accordance with the AHPA, the Secretary promulgated 9 C.F.R. Part 86, which sets forth requirements for the interstate movement of livestock in a manner that prevents the transmission of various animal diseases—including EIA.[16] Section 86.5, in particular, states:

§ 86.5  Documentation requirements for interstate movement of covered livestock.

(a) The persons responsible for animals leaving a premises for interstate movement must ensure that the animals are accompanied by an interstate certificate of veterinary inspection (ICVI) or other document required by this part for the interstate movement of animals.

. . . .

(f)  Horses and other equines. Horses and other equines moved interstate must be accompanied by an ICVI unless:

(1)  They are used as the mode of transportation (horseback, horse and buggy) for travel to another location and then return direct to the original location.

(2)  They are moved from the farm or stable for veterinary medical examination or treatment and returned to the same location without change in ownership.

(3)  They are moved directly from a location in one State through another State to a second location in the original State.

(4)  Additionally, equines may be moved between shipping and receiving States or Tribes with documentation other than an ICVI, e.g., an equine infectious anemia test chart, as agreed to by the shipping and receiving States or Tribes involved in the movement.

(5)  Equines moving commercially to slaughter must be accompanied by documentation in accordance with part 88 of this chapter. Equine infectious anemia reactors moving interstate must be accompanied by documentation as required by part 75 of this chapter.

9 C.F.R. § 86.5. The Secretary also promulgated 9 C.F.R. Part 71, which generally prohibits the interstate movement of diseased animals and poultry. Relevant to this case, section 71.3(f) provides:

Before offering cattle or other livestock or poultry for interstate transportation . . . all persons, companies, or corporations are required to exercise reasonable diligence to ascertain whether such animals or poultry are affected with any contagious, infectious, or communicable disease, or have been exposed to the contagion or infection of any such disease by contact with other animals or poultry so diseased or by location in pens, cars, or other vehicles, or upon premises that have contained animals or poultry so diseased.

9 C.F.R. § 71.3(f).

            The sanctions that are available for violations of the regulations in 9 C.F.R. Parts 86 and 71 are governed by section 10414(b) of the Act (7 U.S.C. § 8313(b)). Section 10414(b)) sets civil penalties for violations of the AHPA and its accompanying regulations and states in pertinent part:

[A]ny person that violates this chapter . . . may, after notice and opportunity for a hearing on the record, be assessed a civil penalty by the Secretary that does not exceed the greater of--

(A)(i) $50,000 in the case of any individual, except that the civil penalty may not exceed $1,000 in the case of an initial violation of this chapter by an individual moving regulated articles not for monetary gain;

(ii) $250,000 in the case of any other person for each violation; and

(iii) for all violations adjudicated in a single proceeding--

(I)            $500,000 if the violations do not include a willful violation; or

(II)          $1,000,000 if the violations include 1 or more willful violations.

7 U.S.C. § 8313(b)(1).[17] When determining the civil-penalty amount, the Secretary is required to consider “the nature, circumstance, extent, and gravity of the violation or violations” but “may consider, with respect to the violator-- (A) the ability to pay; (B) the effect on ability to continue to do business; (C) any history of prior violations; (D) the degree of culpability; and (E) such other factors as the Secretary considers to be appropriate.”[18]

B.    Commercial Transportation of Equine for Slaughter Act

The Commercial Transportation of Equine for Slaughter Act (7 U.S.C. § 1901 note) (“CTESA”), included as part of the 1996 Farm Bill, was designed to assure that horses being transported for slaughter are not subjected to unsafe and inhumane conditions.[19] Congress directed the Secretary of Agriculture to issue guidelines to accomplish this purpose, and the Secretary delegated this rulemaking authority to the Animal and Plant Health Inspection Service (“APHIS”). With this authorization, APHIS promulgated the CTESA regulations set forth at 9 C.F.R. Part 88.

Section 88.4 of the regulations sets forth requirements for transport. Pertinent to this case, section 88.4(a)(3) requires that prior to the commercial transportation of horses for slaughter, the owner/shipper must:

Complete and sign an owner-shipper certificate for each equine being transported. The owner-shipper certificate for each equine must accompany the equine throughout transit to slaughter and must include the following information, which must be typed or legibly completed in ink:

(i)             The owner/shipper’s name, address, and telephone number;

(ii)           The receiver’s (destination) name, address, and telephone number;

(iii)         The name of the auction/market, if applicable;

(iv)          A description of the conveyance, including the license plate number;

(v)           A description of the equine’s physical characteristics, including such information as sex, breed, coloring, distinguishing markings, permanent brands, tattoos, and electronic devices that could be used to identify the equine;

(vi)          The number of the USDA backtag applied to the equine in accordance with paragraph (a)(2) of this subsection;

(vii)        A statement of fitness to travel at the time of loading, which will indicate that the equine is able to bear weight on all four limbs, able to walk unassisted, not blind in both eyes, older than 6 months of age, and not likely to give birth during the trip;

(viii)      A description of any preexisting injuries or other unusual condition of the equine, such as a wound or blindness in one eye, that may cause the equine to have special handling needs;

(ix)          The date, time, and place the equine was loaded on the conveyance; and

(x)           A statement that the equine was provided access to food, water, and rest prior to transport[.]

9 C.F.R. § 88.4(a)(3). The Secretary may assess civil penalties of up to $5,000 per violation of the CTESA and regulations,[20] and “[e]ach equine transported in violation of the regulations . . . will be considered a separate violation.”[21]

IV. Discussion

A.    Respondent is guilty of all the violations alleged in the Complaint. 

In his Answer Respondent admitted to one violation of 9 C.F.R § 88.4(a)(3) as alleged in paragraph 5 of the Complaint. 

            As noted above, Respondent’s Answer admitted to the facts alleged in paragraphs 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, and 24 of the Complaint; however, he raised the legal argument that he was the seller of the horses and therefore was not a “persons responsible” under 9 C.F.R. § 86.5(a). Having found Respondent a “persons responsible” under 9 C.F.R. § 86.5(a)[22] and based upon the Stipulations signed by both parties, I have determined that Respondent moved or caused the movement of the equines as alleged in paragraphs 4, 6, 7, 8, 9,10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, and 24 of the Complaint.

Paragraph 19 of the Complaint alleged that Respondent violated 9 C.F.R. § 71.3(f) in that prior to offering an equine for interstate transportation, he failed to exercise reasonable diligence to ascertain whether the equine was affected with or exposed to any contagious, infectious, or communicable disease. In the Stipulations, Respondent admitted to selling a horse on August 20, 2018 and admitted that on August 27, 2018 the horse tested positive for EIA.[23] Based upon this admission, along with evidence contained in RX-13 and CX-103, I find that: 1)  Respondent was aware of the  possibility of exposure to contagious, infectious, or communicable disease;[24] 2) Respondent had blood drawn from the horse for a Coggins test on August 20, 2018;[25] and 3) Respondent did not await the results of the Coggins test prior to letting the horse leave his facility for interstate transport.[26] Therefore, I find that Respondent violated 9 C.F.R. § 71.3(f).  

In sum, I find Respondent is guilty of nineteen violations of 9 C.F.R. § 86.5 (a) and (f), as alleged in paragraphs 4, 6, 7,8, 9,10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, and 24 of the Complaint; one violation of 9 C.F.R. § 71.3(f), as alleged in paragraph 19 of the Complaint; and one violation of 9 C.F.R § 88.4(a)(3), as alleged in paragraph 5 of the Complaint. 

B.    Civil Penalty

            Section 10414(b)(1)(A) of the Act (7 U.S.C. 8313(b)(1)(A)), as modified by 7 C.F.R. § 3.91(b)(2)(vi) in 2010, permitted the Secretary to impose a civil penalty of up to $250,000 per violation.[27] However, the Inflation Adjustment Act raised the amount per violation to $381, 394 per violation of AHPA.[28] The maximum penalty for CTESA is $5,000 per violation.[29]

Applying the maximum penalty limitations of section 10414(b), the Secretary may impose a maximum civil penalty of total of $1,138, 937 for violations of the AHPA and $70,000 for violations of the CTESA. In imposing a civil penalty under the AHPA the Secretary should consider the statutory factors set forth in section 10414(b)(2) (7 U.S.C. § 8313(b)(2)). As previously noted, this section obligates the Secretary to consider the nature, circumstance, extent, and gravity of the Respondent’s violations and gives him the discretion to consider the Respondent’s ability to pay the civil penalty, the penalty’s effect on Respondent’s ability to continue to do business, any history of prior violations, and the Respondent’s degree of culpability, as well as any other factors that the Secretary deems appropriate.[30]

The nature, circumstances, and gravity of the violations are significant. On or about July 18, 2018, Respondent purchased fourteen horses intended for slaughter in Nebraska. He then transported those fourteen horses without the owner/shipper certificates required by 9 C.F.R § 88.4(a)(3).[31] He comingled those horses with other horses at his facility and then sold fifty horses from his facility to individual buyers, who transported those fifty horses in nineteen separate interstate movements without the required ICVIs. 

The consequences of Respondent’s actions were monumental. One of the fourteen horses that was purchased on July 18, 2018 and transported to Respondent’s facility in Colorado was later sold to an individual buyer and transported to Wyoming prior to testing positive for equine infectious anemia (“EIA”).[32] However, the testing was not done until over a month after the horse arrived at Respondent’s facility.[33] Respondent’s actions of co-mingling and reselling of those horses resulted in state and federal officials in twelve states investing hundreds of hours of time and energy to investigate and attempt to trace the 293 horses that were potentially exposed to EIA.[34] Out of the 293 horses that were potentially exposed to EIA, sixty-seven were never successfully traced. Thus, sixty-seven potentially exposed horses may continue to spread the disease.[35] Respondent’s violations also required the tracking, retesting and the quarantine of forty-seven horses sold by Respondent.[36]

These violations pose a grave threat to the health and economic vitality of the U.S. equine industry.[37] EIA is a contagious, incurable, potentially fatal disease that affects equines.[38] While it can cause the death of an infected horse, horses that survive the initial acute state of the disease become chronically infected and serve as a source of transmission of the virus to other horses for the remainder of their natural lives.[39] There is no vaccine, cure, or treatment for EIA.[40] The incubation period for EIA virus is thirty-five to forty-five days.[41]

In the early 1970s Leroy Coggins developed an EIA test (Coggins test).[42] When the United States first started testing using the Coggins test, EIA was widespread in the United States with approximately 50,000 cases per year.[43] There are now over 400 EIA laboratories conducting over 1.3 million tests per year at a cost of over $50 million.[44] There is no federal EIA program, and the USDA relies on state programs developed in the 1970’s.[45] Once notified of a positive EIA test, the state issues a quarantine on the premises where the horse is located.[46]  Positive horses are isolated at least 200 yards away from other horses and re-tested is done sixty days post –exposure.[47]  Trace-back epidemiological investigations are conducted to identify all horses that have been exposed to a EIA.[48]

  As a result of EIA testing and control programs, the current national prevalence is estimated to be .004 percent, or fewer than 100, cases per year.[49] However, individual cases are now much more important, as the consequences of potential exposure are greater than in the past.[50]  Every positive EIA test requires trace-back finding of the source and eradication of that source of infection.[51] Interstate Certificates of Veterinary Inspection (“ICVIs”) are very important documents because they are an official trace movement of horse from one location to another and also document the disease or clinical statues of the horse noted on the certificate.[52] A negative Coggins test is required to obtain an ICVI; thus, the test is an essential tool in preventing the spread of EIA.[53]

The United States export of equines amounts to between $300- and $500-million dollars a year.[54] APHIS communicates regularly with other ministries of agriculture across the world  for trade negotiations and trade pacts.[55] These trade agreements are based upon trust, and other countries assess the U.S. infrastructure and ability to trace back disease.[56] Anything that undermines the United States’ ability to regulate, manage, and respond to animal diseases impacts trade with other countries.[57]  Thus, Respondent’s violations impacted the U.S. equine industry and could have impacted the international equine market.   

            Respondent is highly culpable for his violations of the regulations because, as the evidence demonstrates, Respondent was fully aware of the regulatory requirements for interstate movement of horses but attempted to pass sole responsibility on the buyers of those horses.[58] Although the buyers were also responsible, Respondent, as a buyer/seller of equines for over six years,[59] was aware of the dangers of EIA and the requirement to obtain ICVIs prior to interstate transport.[60] This is even more egregious since Respondent’s own Facebook page stated the horses he was selling had been in kill pens with potential exposure to diseases.[61]  Thus, Respondent was fully aware of the high risk that the horses he was selling had been exposed to disease and allowed the horses to leave his facility without ICVIs. Moreover, blood had been drawn and Coggins tests ordered for forty-one of the fifty sales.[62] Respondent’s attempt to mitigate his culpability by showing he ordered Coggins tests for forty-one of the horses does not mitigate his actions in this case because it proves he was aware of the Coggins-test requirement and, after drawing blood and ordering the tests, let at least twenty-two horses leave his facility without the Coggins test results and let all the horses leave his facility without ICVIs.[63] Moreover, Respondent’s veterinarian testified that he was the one who had drawn the blood for the Coggins tests and had visually inspected the horses during the drawing of the blood.[64] Thus, the issuance of the ICVIs could have been completed upon obtaining the negative Coggins test results.

The nature, extent, and gravity of Respondent’s violations, coupled with his degree of culpability, warrant a severe penalty to deter Respondent and others from committing the same or similar violations in the future. “It is the policy of this Department to impose severe sanctions for violations of any of the regulatory programs administered by the Department that are repeated or are regarded by the Department and the Judicial Officer as serious, in order to serve as an effective deterrent not only to the Respondents, but also to other potential violators.”[65]

Dr. Donald Beckett works for APHIS and is the area veterinarian-in-charge for Colorado and Wyoming.[66] Dr. Beckett  recommended a fine of $193,500.[67] Dr. Beckett recommended a penalty of $250 per horse transported for a total of  penalty of $3,500 for the violation of 9 C.F.R. § 88.4(a)(3).[68] Dr. Beckett testified that the maximum penalty for the 9 C.F.R. §§ 86.5 (a) and (f) violations and one violation of 9 C.F.R. § 71.3(f) could have been $250,000 for each violation (without taking into consideration of the Inflation Adjustment Act).[69]  However, he was recommending a penalty of $9,500 per transaction for a total of $190,000.[70]  Thus, Dr. Beckett was recommending a total penalty of $193,500.[71]  Dr. Beckett acknowledged that in August 2020, USDA had offered to settled the case for $51,000.[72] Dr. Beckett testified that was a pre-litigation settlement offer.[73]

            Dr. Beckett testified that, in arriving at his recommended penalty, he had considered the effect the penalty would have on Respondent’s ability to continue business.[74] I also have considered it and find the evidence presented by Respondent and the testimony of Respondent’s accountant regarding the financial status of Fabrizius Livestock to be confusing and ambiguous, at best.[75]

In an attempt to prove his inability to pay even a modest penalty, Respondent submitted corporate income tax returns for the years 2015 through 2021.[76] Although the corporate income tax returns produced by Respondent show a negative taxable income of over $50,000 for the years 2015 through 2021, I find that the returns do not reflect an accurate picture of the financial viability of Fabrizius Livestock. The returns show that since 2018 Respondent has invested over $340,000 of corporate income into the purchase of equipment, for which Respondent was able to deduct the full 100%.[77] While the deduction of allowed expenses is legal, the attempt to portray this as a money losing business is not simply accurate. It stretches the imagination and credibility to imagine that Respondent has been operating this business at a loss for over seven years without any compensation or profit. Explaining this, Mr. Fabrizius testified that he does not take a salary from the business but, instead, all of his living expenses, including food, clothes, housing, gas, etc. for him and his family is taken out of the business and deducted as business expenses.[78] The co-mingling of business and personal expenses is highly problematic and makes it difficult to accurately assess the financial viability of Respondent’s business. Therefore, I am unpersuaded by Respondent’s evidence that his business would be unable to survive a substantial penalty. In fact, the evidence submitted by Respondent indicates that he will be able to absorb the financial penalty awarded by this Court.

  Dr. Beckett also testified that he considered Respondent’s lack of prior violations in his penalty recommendation but did not provide further explanation.[79] Under the regulations, I have the discretion, but am not obliged, to take into consideration the fact that Respondent has no prior history of adjudicated violations of the regulations.[80] I have decided that based upon the nature and circumstances of Respondent’s violations— including his experience buying and selling and transporting horses, his knowledge and awareness that the horses he was selling were exposed to “ all kind of sickness,”[81] his drawing blood for Coggins tests and allowing at least twenty-two of the horses leave his premises for interstate transport prior to obtaining the test results, [82] and the repeated violations over a two-month period— no reduction in civil penalty due to lack of prior history of adjudicated violations is warranted.  

 Respondent argues that the purpose of penalty assessment should be not only punishment but also compliance and that Respondent has shown compliance.[83] While I agree that the assessed penalty should take in account both punishment and compliance, Respondent has earned a severe punitive penalty in this case. Respondent has been in the horse business for years and aware of EIA and the regulations regarding interstate transportation of equines. Knowing the regulations and knowing that the horses he was selling were potentially exposed to “all kinds of sickness,”[84] he repeatedly let horses leave his premises for interstate transportation without ICVIs.  Amanda XXXXX testified that the procedures for selling horse to individual buyers changed about two years ago, two years after the disastrous transactions of the present case and two years after the state shut down Respondent’s operation and quarantined all of his horses for sixty days.[85] Voluntary compliance is commendable, but Respondent’s compliance is not voluntary.     

Respondent also argues that I should not penalize him for exercising his right to retain counsel and litigate his responsibility under the regulations and the final penalty awarded.[86]  In this regard he argues that any penalty over the initial settlement offer of $51,000 would penalize him for exercising his rights.[87]  I disagree.  Initial settlement offers are low offers intended to induce a quick resolution of the issues and avoid prolong litigation. The higher penalty assessed by this Court is not a penalty for Respondent exercising his rights, but an award based upon a full presentation of the facts—including the degree of Respondent’s culpability and the testimony of Dr. Pelzel-McCluskey and Dr. Beckett, which provided evidence of the severe consequences of Respondent’s actions (including the contagious nature of EIA, the potential exposure of 293 horses to EIA, the potential impact on the United States equine industry, and the hundreds of hours expended by state and federal officials from twelve states as a result of Respondent’s actions). Lastly, the evidence presented by Respondent indicates that Fabrizius Livestock will be able to absorb the penalty awarded by this Court. 

After due consideration of the factors referenced above and the Department’s severe sanctions policy, I have determined that the facts and circumstances of this case warrant a  penalty of ten -thousand dollars ($10,000) for Respondent’s violations of 9 C.F.R § 88.4(a)(3); a penalty of ten-thousand dollars ($10,000) for Respondent’s violation of 9 C.F.R. § 71.3(f); and a penalty of one-hundred-ninety thousand dollars ($190,000) for Respondent’s nineteen violations of 9 C.F.R. §§ 86.5(a) and (f), for a total civil penalty of two-hundred, ten-thousand dollars ($210,000) for all of the violations adjudicated in this proceeding. 

I believe that this civil penalty is sufficiently severe to deter Respondent and like-minded others from committing violations of the regulations in the future while striking an appropriate balance between the nature, gravity, and extent of Respondent’s violations, his culpability for the same, and his ability to continue in business.

VII. Findings of Fact and Conclusions of Law

In accordance with the evidence of record in this docket, the following findings of fact and conclusions of law are hereby adopted:

1.     (a) Respondent Fabrizius Livestock is a Colorado corporation, whose registered address is in XXXXX.

(b)  At all times material herein, Respondent engaged in the business of buying and selling equine, including the transport of equines intended for slaughter.

(c)   At all times material herein, Respondent was an “owner/shipper,” as defined in 9 C.F.R. § 88.1.        

2.     On or about July 18, 2018, Respondent purchased fourteen horses intended for slaughter in Nebraska and transported them to Colorado without owner/shipper certificates in violation of 9 C.F.R. § 88.4(a)(3).

3.     On or about August 20, 2018, Respondent failed to exercise reasonable diligence to ascertain whether a horse was affected with any contagious, infectious, or communicable disease before offering the horses for interstate transportation when he sold and let one horse affected with equine infectious anemia (“EIA”) leave his facility in Colorado and be transported to Wyoming in violation of 9 C.F.R. § 71.3(f).

4.     From on or about July 2018 through August 2018, Respondent was a responsible party for animals leaving a premises for interstate movement under 9 C.F.R. § 86.5(a) and committed nineteen violations of 9 C.F.R. § 86.5(a) and (f) when on nineteen separate incidents he sold and allowed fifty horses to leave his facility without ensuring the horses were accompanied by an interstate certificate of veterinary inspection (“ICVI”).  

ORDER

             In accordance with section 10414(b) of the Act (7 U.S.C. § 8312(b)), Respondent Fabrizius Livestock, a Colorado corporation, is assessed a civil penalty in the amount of two-hundred-ten thousand dollars ($210,000).  Respondent shall send a certified check or money order for two-hundred ten thousand dollars ($210,000), payable to the U.S. Department of Agriculture, to USDA APHIS, P.O. Box 979043, St. Louis, Missouri 63179-9000 within thirty (30) days from the effective date of this Order.  Respondent shall indicate on the certified check or money order that payment is in reference to AHPA/CTESA Docket No. 21-J-0062.

            Pursuant to the Rules of Practice governing procedures under the Act, this Decision and Order will become final without further proceedings 35 days after service hereof unless appealed to the Secretary by a party to the proceeding within 30 days after service as provided in sections 1.139 and 1.145 of the Rules of Practice (7 C.F.R. §§ 1.139 and 1.145).

Copies of this Decision and Order shall be served upon parties.

Done at Washington, D.C.,

this 1st day of November 2022

Tierney M. Carlos /S/

Tierney M. Carlos

Administrative Law Judge

Appendix 1

Hearing Clerk’s Office

United States Department of Agriculture

Stop 9203, South Building, Room 1031

1400 Independence Avenue, SW

Washington, DC 20250-9203

Tel:     202-720-4443

Fax:     844-325-6940

SM.OHA.HearingClerks@USDA.GOV

--

APPENDIX 1

UNITED STATES DEPARTMENT OF AGRICULTURE

BEFORE THE SECRETARY OF AGRICULTURE

In re:
	Fabrizius Livestock, a Colorado corporation,	AHPA/CTESA Docket No. 21-J-0062
	Respondent.

OPINION FINDING RESPONDENT A “PERSONS RESPONSIBLE” UNDER 9 C.F.R. § 86.5(a) AND

ORDER DENYING COMPLAINANT’S MOTION FOR SUMMARY JUDGMENT

Appearances:

Danielle Park, Esq., with the Office of the General Counsel, United States Department of Agriculture, Washington, DC, for the Complainant, Administrator, Animal and Plant Health Inspection Service (“APHIS”)

Thomas D. Grant, Esq., of Grant & Hoffman Law Firm, P.C., Greeley, Colorado, for the Respondent, Fabrizius Livestock

Before Tierney M. Carlos, Administrative Law Judge               

This is a proceeding under the Animal Health Protection Act, as amended (7 U.S.C. §§ 8301 et seq.) (“AHPA”); the Commercial Transportation of Equine for Slaughter Act (7 U.S.C. § 1901 note) (“CTESA”); and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130 et seq.) (“Rules of Practice”). The matter initiated with a complaint filed on August 24, 2021 by the Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture (“Complainant”), alleging that Jason Fabrizius, doing business as Fabrizius Livestock (“Respondent”), violated the AHPA and its regulations (9 C.F.R. Parts 71, 75, and 86) and the CTESA and its regulations (9 C.F.R. Part 88).^[88]

On November 4, 2021, I issued an order (“Exchange Order”) setting deadlines for submissions by the parties. The Exchange Order gave Complainant until December 6, 2021 to file with the Hearing Clerk a list of exhibits and witnesses and to send copies of its exhibits and list to Respondent. Respondent was given until January 20, 2022 to do the same.

On January 20, 2022, Respondent filed an unopposed motion for extension of time requesting an additional fourteen days to comply with the Exchange Order. In support thereof, Respondent stated that “the parties discussed [that day] the desire to work toward a resolution of this matter.”^[89]

By early February the parties indicated they had been unable to reach an agreement to resolve the matter, and on February 10, 2022 I scheduled a hearing for April 5 to 7, 2022.

On February 25, 2022, I was informed by Complainant that “[t]he parties [were] largely in agreement to the facts of the case and believe[d] that the legal arguments [could] be resolved via motions or briefing, and thus save the need to conduct a zoom hearing at all or at least shorten the amount of time required for the hearing.”^[90] During a telephone conference on March 2, 2022, I was informed that the parties agreed on the majority of the facts of the case but disagreed on the legal issue of whether Respondent was a “persons responsible” under 9 C.F.R.  § 86.5(a).

On March 2, 2022, I issued an order setting a briefing schedule for the parties. The Order directed, inter alia, the parties to jointly file a written stipulation of facts and Complainant to file a motion for determination of legal issue(s) and supporting brief by April 5, 2022.^[91]  On the same date I cancelled the virtual hearing scheduled for April 5 to 7, 2022.

On April 5, 2022, Complainant filed an unopposed motion for extension of time to file the parties’ joint stipulation of facts and Complainant’s motion for determination of legal issue(s) and supporting brief. On the same date, I issued an order granting Complainant’s Motion and extended the deadline to April 12, 2022.^[92]

On April 12, 2022, Complainant filed a second request for extension of time to file Complainant’s motion for determination of legal issue and the parties’ joint stipulation of facts. Complainant requested “that the time for filing . . . be extended up to and including April 26, 2022.”^[93]

On April 21, 2022, Complainant filed a motion for leave to file an amended complaint (“Motion to Amend Complaint”).^[94] Complainant sought leave to amend the Complaint by substituting Fabrizius Livestock, a Colorado corporation, as the named Respondent.^[95]

On April 26, 2022, Complainant filed a motion requesting a stay of submission deadlines (“Motion for Stay”).

On April 27, 2022, I held a telephone conference with the parties to address Complainant’s Motion to Amend Complaint and second request for extension of time to file its brief on the legal issue of whether Respondent was a “persons responsible.” Following the telephone conference, I denied Complainant’s Motion for Stay and issued an order amending the briefing schedule.^[96]

On May 10, 2022, the parties filed their Stipulations as to Facts (“Stipulations”).^[97]

On May 11, 2022, Respondent filed objections to Complainant’s Motion to Amend Complaint.^[98]

On May 11, 2022, Complainant filed a Motion for Summary Judgment. The Motion for Summary Judgment included a legal argument of why Respondent was a “persons responsible” under 9 C.F.R. § 86.5(a).

On May 24, 2022, I granted Complainant’s Motion to Amend Complaint. On the same date, Complainant filed its Amended Complaint.

On May 25, 2022, Respondent filed an unopposed motion for extension of time to file a response to Complainant’s Motion for Summary Judgment. On the same date, I issued an order granting Respondent’s Motion and extending the deadlines set forth in the amended briefing schedule.^[99]

            On June 3, 2022, Respondent filed his Response to Complainant’s Motion for Summary Judgment and Respondent’s Opening Brief Regarding Determination of Legal Issues. 

            On June 9, 2022, Complainant filed its Response to Respondent’s Response to Complainant’s Motion for Summary Judgment.

            On June 10, 2022, Respondent filed his Answer to the Amended Complaint.

            On June 16, 2022, Respondent filed his Sur-Reply to Complainant’s Motion for Summary Judgment.

RESPONDENT IS A “PERSONS RESPONSIBLE” WITHIN THE MEANING OF

9 C.F.R § 86.5(a)

Section 86.5(a) of the AHPA regulations (9 C.F.R. § 86.5(a)) provides that “persons responsible for animals leaving a premises for interstate movement must ensure that the animals are accompanied by an interstate certificate of veterinary inspection (ICVI) or other documents required by this part for the interstate movement of animals.”^[100] The term “persons responsible” is not defined in the AHPA or applicable regulations.

Unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.^[101] The ordinary, common meaning of “persons responsible” is all persons responsible for the horses leaving a premises for interstate movement. In the context of a commercial transaction, such as in the present case, the plain, ordinary meaning of “persons responsible” means the seller, the buyer, and the transporter.

            Respondent argues that section 86.5(a) is unconstitutionally vague and does not give adequate notice regarding who is responsible for obtaining the required certifications.^[102] There is nothing vague about the term “persons responsible”; in fact, it is just the opposite of vague – it is all encompassing. By using the plural of “person,” the plain meaning is to include all persons involved in the process of the horses leaving a premises into interstate movement: the seller, the buyer, and the transporter. This is especially true in the present case where Respondent advertised the horse for sale on the Internet and was aware that the buyers were from out of state. In addition, Respondent, as the seller, had possession of the horses, was the person responsible for the horses leaving his premises, and was the person in the best position to obtain the required certificates prior to arrival of the transport to the buyer’s location.

            Respondent also argues that persons of ordinary intelligence would not understand what the term “persons responsible” means. I disagree. The meaning is plain and simple, and a person of ordinary intelligence would understand that the seller is the reason for the horses leaving the premises into interstate movement – without the seller, there would be no movement. Here, the seller advertised the sale on the Internet via Facebook.^[103] The seller knew the buyers were from out of state based upon the PayPal payment receipts and that the majority (if not all) the transporters were from out of state.^[104] Under the present facts a person of ordinary intelligence would understand that Respondent, as the seller, is one of the persons responsible for the interstate movement. Indeed, under Respondent’s argument, neither the buyer nor the seller would be responsible for obtaining the certificates due to the great confusion caused by language of the statue.^[105]

Moreover, it is well settled that an agency’s interpretation of the statute it is charged with administering, and especially an agency’s interpretation of its own regulation, is entitled to great deference unless the interpretation is clearly erroneous or inconsistent with the language it interprets.^[106] APHIS’s interpretation of the meaning of “persons responsible” and interpretation of 9 C.F.R § 86.5(a) is not clearly erroneous or inconsistent with the language of C.F.R part 86 and is entitled to controlling weight.^[107]

            Respondent asks, “Where does the responsibility begin, and where does it end?”^[108] The answer is as simple as the meaning of words “persons responsible”: responsibility begins when a seller advertises horses for sale. It continues when the seller learns the buyer is from another state. It continues when the buyer or buyer’s transporter arrives to take possession of the horses. Responsibility ends when the seller obtains the necessary and required certificates or verifies that the buyer has obtained the required certifications. There is no mystery, no hidden meanings, and no attempts to snare unknowing sellers or buyers. The regulations require all persons involved in the animals leaving the premises into interstate movement to obtain required certificates prior to interstate movement.^[109] A seller who sells to an out-of-state buyer is a “persons responsible” for interstate movement under 9 C.F.R. § 86.5(a) and as such is responsible to obtain the required certificates. 

            Respondent also argues that the lack of temporal restrictions in the regulation is fatal and that, under the regulations, a seller who sold the horses “months or years in the past” would be liable.^[110] Respondent is incorrect. The wording of the regulation is the “persons responsible for animals leaving a premises for interstate movement.”^[111] Respondent is responsible because the horses left his premises and were transported directly out of state. If the horses left Respondent’s premises and were transported to another location in Colorado, stayed there for period of time (weeks, months, or years), and then were transported out of state, Respondent would not be a “persons responsible” because under those facts Respondent would not be responsible for the animals leaving a premises for interstate movement.

RESPONDENT MOVED HORSES UNDER AHPA DEFINTION OF “MOVE.”

The Animal Health Protection Act does not define “movement”; however, the regulations define the term “move” as “[t]o carry, enter, import, mail, ship, or transport; to aid, abet, cause, or induce carrying, entering, importing, mailing, shipping, or transporting; to offer to carry, enter, import, mail, ship, or transport; to receive in order to carry, enter, import, mail, ship, or transport; or to allow any of these activities.”^[112]

Respondent argues that he did not move the horses because he was not involved in or responsible for the physical transportation of the horses.^[113] However, Complainant has provided declarations from the buyers establishing that Respondent advertised horses for sale on the Internet and sold the horses to buyers from out of state.^[114] The horses were loaded onto transports and transported from Respondent’s premises.^[115] In at least some of the cases, Respondent’s employees helped load the horses onto the transports.^[116] Respondent has not produced any evidence rebutting any of the facts surrounding the sale or transporting of the horses. Having found that Respondent is a “persons responsible” under 9 C.F.R. § 86.5(a), I also find that Respondent, as the seller of the horses,^[117] aided, abetted, caused, and induced the shipping or transporting of the horses interstate. 

COMPLAINANT’S MOTION FOR SUMMARY JUDGMENT IS DENIED.

            Having found Respondent a “persons responsible,” I agree with Respondent that summary judgment is not appropriate.^[118] At the very least both parties are entitled to present evidence relating to civil penalties, including Respondent’s ability to pay, the effect on his ability to continue to do business, any history of prior violations, the degree of culpability, and others factors the parties wish to argue may be appropriate for the Court to consider.^[119]

CONCLUSION OF LAW

Respondent is a “persons responsible” within 9 C.F.R § 86.5(a).

ORDER

1.     Complainant’s Motion for Summary Judgment is denied.

2.     The parties will be contacted within seven (7) business days to discuss further scheduling issues.

            Copies of this Summary and Order shall be served upon the parties and counsel by the Hearing Clerk.

Done at Washington, D.C.,

this 5th day of July 2022

Tierney Carlos /S/

Tierney M. Carlos

Administrative Law Judge

Hearing Clerk’s Office     

U.S. Department of Agriculture

South Building, Room 1031

1400 Independence Avenue, SW

Washington, DC 20250-9203

Tel:     202-720-4443

Fax:     1-844-325-6940

SM.OHA.HearingClerks@OHA.USDA.GOV

---

[1] Complaint at 1.

[2] As will be discussed infra, Respondent’s name was subsequently changed to Fabrizius Livestock, a Colorado corporation. See Amended Complaint (filed May 24, 2022).

[3] Unopposed Motion for Extension of Time to File Witness & Exhibit List at 1.

[4] February 25, 2022 email from Complainant’s counsel, Danielle Park, to OALJ Administrative Management Specialist Marilyn “Nita” Kennedy.

[5] Summary of March 2, 2022 Telephone Conference & Order Setting Briefing Schedule at 1.

[6] Attached thereto was Complainant’s proposed Amended Complaint.

[7] Motion for Leave at 2.

[8] See Summary of March 2, 2022 Telephone Conference & Order Setting Briefing Schedule at 1-2.

[9] In the Stipulations, Respondent admitted that he sold the horses alleged in the Complaint and that they were moved interstate without ICVI certificates. See Stipulations at 1.

[10] The filing is titled, “Respondent’s Response to Complainant’s Motion to Amend Complaint.”

[11] See supra note 8 and accompanying text; Order Granting Respondent’s Unopposed Motion for Extension of Time to File Response to [Motion for] Summary Judgment at 2-3.

[12] 7 U.S.C. § 8301(5)(B); see Amazon Servs. LLC, 2022 WL 722724, at *12 (U.S.D.A. Feb. 2, 2022) (“The purpose of the AHPA is to prevent, detect, control, and eradicate disease and pests of animals.”).

[13] 7 U.S.C. § 8305.

[14] See 7 U.S.C. § 8301(1).

[15] Animal & Plant Health Inspection Service, U.S. Dep’t of Agric., Equine Infectious Anemia (EIA) (Mar. 1, 2022), https://www.aphis.usda.gov/aphis/ourfocus/animalhealth/animal-disease-information/equine/eia/equine-infectious-anemia. It is estimated that EIA testing alone cost the equine industry approximately $37 million in 2015. U.S. Dep’t of Agric., Equine Infectious Anemia (EIA) – Concept for Federal Regulations, https://www.aphis.usda.gov/animal_health/animal_diseases/eia/downloads/eia-proposedrule-conceptpaper.pdf (last visited Sept. 30, 2022).

[16] See 9 C.F.R. §§ 86.1 – 86.8.

[17] The Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. § 2461 note, Pub. L. No. 101-410), as amended by the Debt Collection Improvement Act of 1996 (31 U.S.C. § 3701 note, section 31001 of Pub. L. No. 104-134, 110 Stat. 1321), requires the Secretary to adjust for inflation the civil penalties that are available under the various statutes that he enforces at least once every four years.  The Secretary’s adjustments of the civil penalties for violations of the AHPA are promulgated in 7 C.F.R. § 3.91(b)(2)(vi).  In 2018, section 3.91(b)(2)(vi) was amended to increase the civil penalties for violations of the AHPA as follows: “Civil penalty for any person . . . that violates the Animal Health Protection Act . . . has a maximum of the greater of: $68,027 in the case of any individual, except that the civil penalty may not exceed $1,360 in the case of an initial violation of the AHPA by an individual moving regulated articles not for monetary gain, $340,131 in the case of any other  person for each violation, $569,468 for all violations adjudicated in a single proceeding if the violations do not include a willful violation, and $1,138,937 for all violations adjudicated in a single proceeding if the violations include a willful violation[.]” 7 C.F.R. § 3.91(b)(2)(vi) (2018). This increase applied to violations occurring between March 14, 2018, and June 16, 2020.  See 83 Fed. Reg. 11130 (Mar. 14, 2018).

[18] 7 U.S.C. § 8313(2) (emphasis added).

[19] See, e.g., Richardson, 66 Agric. Dec. 69, 87 (U.S.D.A. 2007); Simon, 2009 WL 330544, at *1 (U.S.D.A. Aug. 5, 2009) (Initial Decision). The Secretary is not required to consider the respondent’s ability to pay when determining the amount of civil penalty to be assessed for CTESA violations. Stanley, 2011 WL 5263577, at *4 (U.S.D.A. Oct. 4, 2011).

[20] 9 C.F.R. § 88.6(a).

[21] 9 C.F.R. § 88.6(b); see 7 C.F.R. § 3.91(b)(2)(xiv) (2018) (“Civil penalty for a violation of the Commercial Transportation of Equine for Slaughter Act, 7 U.S.C. 1901 note, and its implementing regulations in 9 CFR part 88, as set forth in 9 C.F.R. 88.6, has a maximum of $5000. Each horse transported in violation of Part 88 is a separate violation.”).

[22] See Opinion Finding Respondent a “Persons Responsible” Under 9 C.F.R. § 86.5(a) & Order Denying Complainant’s Motion for Summary Judgment (filed July 5, 2022), attached hereto as “Appendix 1.” 

[23] In paragraph S of the Stipulations Respondent admitted to moving a horse which later tested positive for EIA virus.  I find that this was a typographical error, since in all the other paragraphs in the Stipulation regarding selling of horses Respondent admitted to selling the horses and not moving them. In addition, the wording of the sentence, “Respondent moved (1) one horse to an individual in Wyoming and the horse was moved for Colorado to Wyoming” does not make sense.  Finally, Respondent’s position during the entire proceedings was that except for the allegation in Complaint paragraph 5 where he was the buyer, in all other transactions, he was the seller and not the mover. 

[24] RX-13.

[25] CX-103.

[26] CX-103.

[27] 7 U.S.C. § 8313(b)(1)(A)(ii).

[28] Tr. at 88 (Dr. Beckett); see supra note 17.

[29] Tr. at 89, 340 (Dr. Beckett); 9 C.F.R. § 88.6(a).

[30] The factors set forth in section 10414(b)(2) (7 U.S.C. § 8313(b)(2)) apply only to the AHPA, not the CTESA.

[31] The USDA considered the movement of the horses from Nebraska to Colorado as moving to an assembly point for equines in commercial transport to Mexico for purposes of slaughter. (Joint X-1 at 6). However, instead of transporting them for slaughter, Respondent co-mingled those fourteen horses with other horses at his facility and offered them for sale to individual buyers in the United States.   

[32] Tr. at 130 (Dr. Beckett); Stipulations ¶ S.

[33] CX-103.

[34] Tr. at 95 (Dr. Beckett). 

[35] Tr. at 95 (Dr. Beckett).

[36] Two of the horses died during transport or shortly after being sold by Respondent (CX-23; CX-27). The horse that tested positive for EIA was euthanized. Tr. at 258 (Fabrizius).

[37] CX-153 through CX-155.

[38] Tr. at 30 (Dr. Pelzel-McCluskey); CX-153.

[39] Tr. at 30 (Dr. Pelzel-McCluskey); CX-153.

[40] Tr. at 48 (Dr. Pelzel McCluskey).

[41] Tr. at 40 (Dr. Pelzel-McCluskey); CX-154. 

[42] Tr. at 48 (Dr. Pelzel-McCluskey).

[43] Tr. at 48 (Dr. Pelzel- McCluskey).

[44] Tr. at 49 (Dr. Pelzel-McCluskey).

[45] Tr. at 46 (Dr. Pelzel-McCluskey).

[46] CX-154; Tr. at 41 (Dr. Pelzel-McCluskey).

[47] CX-154.

[48] Tr. at 41 (Dr. Pelzel-McCluskey); CX-154.

[49] Tr. at 48-49 (Dr. Pelzel-McCluskey).                            

[50] Tr. at 49 (Dr. Pelzel-McCluskey).

[51] Tr. at 48-49 (Dr. Pelzel-McCluskey): CX-42.

[52] Tr. at 50-51 (Dr. Pelzel-McCluskey).

[53] Tr. at 64 (Dr. Pelzel-McCluskey).

[54] Tr. at 54 (Dr. Pelzel-McCluskey).

[55] Tr. at 53 (Dr. Pelzel-McCluskey).

[56] Tr. at 54 (Dr. Pelzel-McCluskey).

[57] Tr. at 54 (Dr. Pelzel-McCluskey).

[58] RX-13.

[59] Tr. at 251 (Fabrizius). Mr. Fabrizius testified he started Fabrizius Livestock in 2016, but he had been in the horse business his whole life. 

[60] Tr. at 256-57 (Fabrizius); RX-13.

[61] RX-13; Tr. at 202 (McMillan), 261 (Fabrizius).

[62] RX-2; Tr. at 214-16 (McMillan). Not all of the horses sold by Respondent had blood drawn for Coggins tests as some had Coggins tests that were still valid.

[63] The exact number of pending Coggins test results could not be determined from the evidence submitted by the parties since some of the affidavits submitted by the buyers did not include the exact date the horses were picked up from Respondent’s facility. However, Respondent stipulated that in all nineteen of the incidents alleged in the Complaint ICVIs were not obtained prior to the interstate movement of the horses. 

[64]  Tr. at 300-01, 306-08, 322-26 (Dr. Sina Parsaye).

[65] Hennessey, 48 Agric. Dec. 320, 326 (U.S.D.A. 1989).

[66] Tr. at 82-83 (Dr. Beckett).

[67] Tr. at 88 (Dr. Beckett) (“That’s broken down into $3,500 for CTESA violations, the 14 charges. And then AHPA charges of $190,000. So it’s for the 20 instances of that.”).

[68] Tr. at 88, 119 (Dr. Beckett).

[69] Tr. at 88-89 (Dr. Beckett).

[70] Tr. at 124 (Dr. Beckett).

[71] Tr. at 88 (Dr. Beckett).

[72] Tr. at 123 (Dr. Beckett); see RX-3.

[73] Tr. at 111-12 (Dr. Beckett).

[74] Tr. at 98, 342-43 (Dr. Beckett).

[75] For example, Mr. Sanders testified that he also prepared Mr. Fabrizius’s personal income tax and Mr. Fabrizius had income from other sources. Tr. at 177 (Sanders). Mr. Fabrizius testified that he did not earn any income and any personal income tax returns would show that he made no income. Tr. at 332 (Fabrizius).

[76] The corporate income tax returns were not complete and lacked any of the schedules referenced in the returns. RX-9 through RX-11; RX-4 through RX-7.

[77] RX-4 through RX-8; Tr. at 154-57 (Sanders); see Tr. at 161-76 (Sanders).

[78] Tr. at 270-72 (Fabrizius).

[79] See Tr. at 90, 97-98 (Dr. Beckett).

[80] See 7 U.S.C. § 8313(b)(2).

[81] Tr. at 202, 261 (McMillan); RX-13.

[82] See RX-2; CX-6; CX-7; CX-9; CX-11; CX-13; CX-14; CX-23; CX-27; CX-30; CX-34; CX-38; CX-45; CX-55; CX-76; CX-83; CX-86; CX-90; CX-101; CX-106; CX-115; CX-123; CX-137.

[83] Tr. at 366-67 (Thomas D. Grant, counsel for Respondent).

[84] Tr. at 202 (McMillan).

[85] Tr. at 219-22, 225-26, 249 (McMillan); see Tr. at 259 (Fabrizius) (“[A]nd after this hogwash happened, they tied me up there for 60 days at my house. . . .”).

[86] Tr. at 365-66 (Grant).

[87] Tr. at 353-55, 366 (Grant).

[88] Complaint at 1.

[89] Motion at 1.

[90] February 25, 2022 email from Complainant’s counsel, Danielle Park, to OALJ Administrative Management Specialist Marilyn “Nita” Kennedy.

[91] Summary of March 2, 2022 Telephone Conference & Order Setting Briefing Schedule at 1.

[92] See Order Granting Complainant’s Unopposed Motion for Extension of Time at 2-3.

[93] Second Request at 2.

[94] Attached thereto was Complainant’s proposed Amended Complaint.

[95] Motion for Leave at 2.

[96] See Summary of March 2, 2022 Telephone Conference & Order Setting Briefing Schedule at 1-2.

[97] In the Stipulations, Respondent admitted that he sold the horses alleged in the Complaint and that they were moved interstate without ICVI certificates. See Stipulations at 1.

[98] The filing is titled, “Respondent’s Response to Complainant’s Motion to Amend Complaint.”

[99] See supra note 9 and accompanying text; Order Granting Respondent’s Unopposed Motion for Extension of Time to File Response to [Motion for] Summary Judgment” at 2-3 (“2. By not later than 4:30 p.m. Eastern on June 2, 2022, Respondent shall file with the Hearing Clerk a response to Complainant’s Motion for Summary Judgment and/or countermotion for determination of legal issue(s) and supporting brief; 3. By not later than 4:30 p.m. Eastern on June 9, 2022, Complainant may file with the Hearing Clerk a Response to Respondent’s response; 4. By not later than 4:30 p.m. Eastern on June 16, 2022, Respondent may file with the Hearing Clerk a sur-reply to Complainant’s reply.”).

[100] 9 C.F.R. § 86.5(a).

[101] See Perrin v. United States, 444 U.S. 37, 42 (1979) (citing Burns v. Acala, 420 U.S. 575, 580-81 (1975) (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”).

[102] Respondent’s Sur-Reply at 1-2, 4-5. See Bauck, 68 Agric. Dec. 853, 865 (U.S.D.A. 2009) (“A regulation is unconstitutionally vague if the regulation is so unclear that ordinary people cannot understand what conduct is prohibited or required or that it encourages arbitrary and discriminatory enforcement.”).

[103] Perhaps it would be different if the horses were advertised for sale in local newspaper, or posted piece of paper in the local coffeeshop, or sold to a buyer who is a neighbor. However, those are not the present facts.

[104] See CX-17. Respondent’s facility is in Colorado. See Stipulations at 2.

[105] In his Answer to the Amended Complaint, Respondent stated that the buyer of the horses were the persons responsible for obtaining the required certificates. See Answer to Amended Complaint at 2-7.

[106] See Chem. Mfrs. Ass’n  v. Nat. Resources Defense Council, 470 U.S. 116, 125-26 (1985); Immigr. & Naturalization Serv. v. Stanisic, 395 U.S. 62, 72 (1969); see also Chevron, U.S.A., Inc. v. Nat. Res. Defense Council, 467 U.S. 837, 844 (1984); Bailey v. Fed. Intermediate Credit Bank, 788 F.2d 498, 499-500 (8th Cir. 1986), cert. denied, 479 U.S. 915 (1986).

[107] See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); see also Stanisic, 395 U.S. at 72; Udall v. Tallman, 380 U.S. 1, 16-17 (1965).

[108] Respondent’s Response to Complainant’s Motion for Summary Judgment and Respondent’s Opening Brief Regarding Determination of Legal Issues at 7.

[109] 9 C.F.R. § 86.5(a).

[110] Respondent’s Sur-Reply to Complainant’s Motion for Summary Judgment and Respondent’s Opening Brief Regarding Determination of Legal Issues at 2.

[111] 9 C.F.R. § 86.5(a).

[112] See 9 C.F.R. § 86.1.

[113] See Respondent’s Response to MSJ at 8-11.

[114] See CX-23; CX-25; CX-27; CX-30; CX-34; CX-36; CX-38; CX-50; CX-70; CX-83; CX-90.

[115] See CX-50; CX-70; CX-83; CX-106.

[116] See CX-27; CX-36; CX-50; CX-83.

[117] Respondent also acted as a buyer and transporter in one of the transactions listed in the Complaint. See Complaint ¶ 5; Stipulation of Facts ¶ E. Respondent appears to argue it is unclear whether the buyer or the seller is responsible for obtaining the required certificates; however, even as a buyer Respondent failed to obtain the required certificates.  

[118] See Respondent’s Response to MSJ at 14. I also note that, to the best of my recollection, Complainant never mentioned to the Court that it intended to file a motion for summary judgment during any of the telephone conferences held in this case. Instead of briefing the single issue agreed upon by the parties, Complainant submitted a fifty-seven-page motion for summary judgment, of which only fourteen pages address the agreed-upon issue of whether Respondent is a “persons responsible.” 

[119] See 7 U.S.C. § 8313(b)(2).