     Case: 10-60109 Document: 00511369992 Page: 1 Date Filed: 02/02/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 2, 2011

                                       No. 10-60109                         Lyle W. Cayce
                                                                                 Clerk

ZOOCATS, INC., a Texas corporation; MARCUS COOK, also known as Marcus
Cline Hines Cook, an individual; MELISSA COODY, also known as Misty Coody,
an individual jointly doing business as Zoo Dynamics and Zoocats Zoological
Systems,


                                                   Petitioners

v.

UNITED STATES DEPARTMENT OF AGRICULTURE,


                                                   Respondent




                        Petition for Review of an Order of the
                      United States Department of Agriculture
                       Animal Welfare Act Docket No. 03-0035


Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       This petition follows a final order of the Secretary of the United States
Department of Agriculture (USDA) ordering ZooCats, Inc., Marcus Cook, and


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 10-60109

Melissa Coody (collectively ZooCats) to cease and desist from violating the
Animal Welfare Act (AWA), and revoking ZooCats’s animal exhibitor license.
ZooCats argues on appeal that the Secretary erred in extending certain filing
deadlines, erred in determining certain audio tapes were inadmissible evidence,
and erred in determining that ZooCats does not qualify as a “research facility”
under the AWA.       We find that the Secretary’s order was not arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law,
and that it was supported by substantial evidence.
                                       I.
      ZooCats is in the business of exhibiting wild animals such as lions and
tigers to the public for promotional events, conventions, and photography
sessions. In 2003, the Animal and Plant Health Inspection Service (APHIS), an
agency of the USDA, issued a complaint against ZooCats alleging that ZooCats
wilfully violated the AWA and its regulations, which set forth the standards for
the exhibition, housing, and treatment of animals. See 7 U.S.C. §§ 2131-2159;
9 C.F.R. §§ 1.1-3.142. The evidence supporting the complaint included affidavits
and reports by APHIS inspectors showing that ZooCats had repeatedly failed to
provide its animals with proper facilities, adequate food, and veterinary care,
and had exhibited its animals in ways that risked harm to both the animals and
the public. In 2007, the Administrative Law Judge (ALJ) instructed APHIS to
file an amended complaint by April 13, 2007.       On April 13, 2007, APHIS
requested that the ALJ extend the filing deadline due to “the abundance of
materials” APHIS was reviewing and the “significant number of additional
violations” it was alleging.
      On May 8, 2007, APHIS filed an amended complaint alleging additional
AWA violations by ZooCats similar to those in the original complaint occurring
between July 2002 and February 2007, and also alleging that ZooCats does not
qualify as a “research facility” under the AWA because ZooCats never performed

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research and never established the administrative procedures required by the
AWA for research facilities. Also on May 8, 2007, the ALJ instructed APHIS to
file its supplemental witness and exhibits list by November 9, 2007. APHIS filed
its supplemental exhibits list on December 11, 2007.               APHIS filed its
supplemental witness list on December 19, 2007. Upon APHIS’s request, the
ALJ permitted both late filings. ZooCats did not object to any of APHIS’s late
filings or to the ALJ’s extensions of the deadlines.
      On September 24, 2008, the ALJ issued a decision and order finding that
ZooCats (i) did not qualify as a “research facility,” (ii) wilfully violated the AWA’s
animal handling regulations on numerous occasions, (iii) wilfully violated the
AWA’s animal sanitation, employee, housing, drainage, and feeding standards,
and (iv) wilfully violated the veterinary care regulations.         Based on these
findings, the ALJ ordered ZooCats to cease and desist from violating the AWA
and its regulations, and permanently revoked ZooCats’s exhibitor license.
      ZooCats timely appealed the ALJ’s decision and order to the USDA
Judicial Officer (JO). On July 27, 2009, the JO issued a decision and order
adopting the ALJ’s decision and order with minor changes related to the
admissibility of audio tape recordings into evidence. The JO stated that ZooCats
“repeatedly endangered the lives of the viewing public, as well as the lives of [its]
animals. . . . To allow [ZooCats] to have an Animal Welfare Act exhibitor
license . . . would subject both the animals [it] would exhibit and the public, to
an unacceptable level of risk of harm.” On December 14, 2009, the JO denied
ZooCats’s petition to reconsider, and on January 8, 2010, the JO stayed its final
order pending review by this court. ZooCats timely petitioned for review.
                                         II.
      We have jurisdiction to review the final order of the Secretary, as issued
by the JO, pursuant to 7 U.S.C. § 2149(c). “Judicial review of the decision of an
administrative agency is narrow.” Allred’s Produce v. U.S. Dep’t of Agric., 178

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F.3d, 743, 746 (5th Cir. 1999). We will uphold the Secretary’s order unless it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law [or] unsupported by substantial evidence.” 5 U.S.C. § 706(2)(A), (E). We
do not substitute our own judgment for that of the Secretary, and will only set
aside the order if it is “unwarranted in law or without justification in fact.”
Allred’s Produce, 178 F.3d at 746 (citations omitted). This deferential standard
requires that we affirm if there is substantial evidence in the record considered
as a whole to support the decision. Cedar Lake Nursing Home v. U.S. Dep’t of
Health & Human Servs., 619 F.3d 453, 456 n.3 (5th Cir. 2010). “Substantial
evidence is ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Chao v. Occupational Safety & Health Review
Comm’n, 401 F.3d 355, 362 (5th Cir. 2005) (quoting Consol. Edison Co. of N.Y.
v. Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938) (citations omitted)).
      ZooCats argues: (i) that the ALJ erred when it extended the filing
deadlines for the amended complaint and the witness and exhibits list; (ii) that
the ALJ and JO improperly excluded from evidence an audio tape of a
conversation between Marcus Cook and an APHIS investigator; and (iii) that the
ALJ and JO incorrectly found that ZooCats does not qualify as a “research
facility.” In essence, ZooCats contends that each of these alleged errors makes
the Secretary’s order “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.” § 706(2)(A). We find each of these arguments
unpersuasive.
      First, ZooCats argues that ALJ erred when it extended the filing deadlines
for the amended complaint and the witness and exhibits list. It contends that
the additional evidence supporting the amended complaint should not have been
admitted or considered by the Secretary in issuing its order. We disagree. An
ALJ has broad discretion to manage its docket to promote judicial economy,
efficiency, and to protect the interests of the parties. See Fla. Mun. Power

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Agency v. Fla. Energy Regulatory Comm’n, 315 F.3d 362, 366 (D.C. Cir. 2003).
Additionally, extensions of filing deadlines are authorized if, in the ALJ’s
judgment, there is “good reason for the extension.” 7 C.F.R. § 1.147(f). In this
case, the decisions to grant extensions were within the ALJ’s discretion, and
APHIS provided good reasons (i.e., the amount of evidence being compiled and
the number of allegations being prepared) to justify the deadline extensions.
      Moreover, ZooCats failed to object to the extensions and was not
prejudiced by the extensions because there was sufficient evidence supporting
the original complaint showing ZooCats had wilfully violated the AWA. See 7
U.S.C. § 2149; see also Cox v. U.S. Dep’t of Agric., 925 F.2d 1102, 1105 (8th Cir.
1991) (noting only one willful violation is needed to revoke a license). We find
the ALJ committed no error in granting the extensions, permitting the amended
complaint, and admitting the additional evidence.
      Second, ZooCats argues that the audio tape recordings were admissible
evidence and asks that we remand this case to the JO for consideration of the
audio tape evidence. ZooCats states that the recordings contain a conversation
between Marcus Cook and an APHIS inspector where they discuss ZooCats’s
alleged non-compliance with the AWA and are therefore relevant evidence.
ZooCats is correct that the audio tapes were excluded from evidence by the ALJ
on an improper basis. And on appeal, the JO correctly found that the tapes were
generally admissible evidence. Nonetheless, the JO upheld the ALJ’s decision
because ZooCats failed to lay a proper foundation to admit the tapes, and that
in any case the failure to admit the tapes was harmless error.
      We agree with the JO that the tapes lacked foundation and ZooCats does
not challenge the JO’s finding. Moreover, even if the tapes were admissible,
failure to admit the tapes would be harmless error because we find that there is
still substantial evidence in the record supporting the agency’s determination
that ZooCats wilfully violated the AWA. See Conoco, Inc., v. Dir., Office of

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Worker’s Comp. Programs, 194 F.3d 684, 690-91 (5th Cir. 1999) (holding even
where an ALJ committed “significant legal error,” such error was harmless
because substantial evidence supported the agency’s order). The administrative
record shows that on numerous occasions ZooCats exhibited lions and tigers for
photography shoots with children without placing any barrier between the
animals and the public, creating a danger to the public and a risk of behavioral
stress and harm to the animals. Additionally, several members of the public
have been injured by the animals due to improper exhibition barriers. There is
evidence that ZooCats’s trainers did not handle the animals properly, at times
using physical abuse with a cattle prod to train, work, or control an animal
during an exhibition. Evidence also shows that ZooCats failed to provide its
animals with a proper diet, failed to properly treat the animals or illnesses and
injuries, and failed to maintain proper facilities in which to house the animals.
Even if failure to admit the tapes was legal error, it would not be so significant
as to overcome the overwhelming amount of evidence in support of the order.
      Finally, ZooCats contends that the agency erred in concluding that it did
not qualify as a “research facility” as that term is defined by the AWA. Under
the AWA, a “research facility” is “any school, institution, organization, or person
that uses or intends to use live animals in research, tests, or experiments.” 7
U.S.C. § 2132(e). The ALJ and the JO found that ZooCats did not use or intend
to use its animals in research, tests, or experiments, in part because ZooCats has
not complied with many of the regulations governing research facilities. ZooCats
was first registered as a research facility in March 2001, but the record indicates
that ZooCats has not conducted any research, tests, or experiments with its
animals since that time.         The absence of any research, testing, or
experimentation in the almost ten years since ZooCats registered as a research
facility and its lack of adherence to the regulations refute its assertion that it



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intends to conduct research with the animals. Therefore, we find that the
Secretary did not err in concluding that ZooCats is not an AWA research facility.
                                      III.
      We reject each of ZooCats’s arguments that the ALJ or JO committed legal
errors, and find that the administrative record contained substantial evidence
that ZooCats repeatedly and wilfully violated the AWA, and that ZooCats is not
an AWA research facility.      We therefore hold that the Secretary’s order
compelling ZooCats to cease and desist from violating the AWA and permanently
revoking ZooCats’s exhibitor license was not “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.” 2 U.S.C. § 706(2)(A).
PETITION DENIED.




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