                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0115n.06

                                            No. 09-4114
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS                             Feb 17, 2011
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


LORENZO PEARSON, dba L&L Exotic
Animal Farm,
                                                       ON PETITION FOR REVIEW OF
       Petitioner,                                     AN ORDER OF THE SECRETARY,
                                                       UNITED STATES DEPARTMENT
v.                                                     OF AGRICULTURE

UNITED STATES DEPARTMENT OF
AGRICULTURE; TOM VILSACK, Secretary
of Agriculture,

       Respondents.

                                                /




BEFORE:        SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.

       CLAY, Circuit Judge. Petitioner Lorenzo Pearson petitions for review of the decision and

order of the Secretary of the United States Department of Agriculture, terminating his license to own

and exhibit wild animals, issuing a cease and desist order, and imposing civil sanctions in the amount

of $93,975, for alleged violations of the Animal Welfare Act, 7 U.S.C. §§ 2131–2159. For the

reasons set forth below, the petition for review is DENIED.
                                               No. 09-4114

                                            BACKGROUND

        Between 1985 and 2005, Petitioner Lorenzo Pearson1 was a licensed exhibitor under the

Animal Welfare Act (“AWA”), 7 U.S.C. §§ 2131–2159, and proprietor of a business called L&L

Exotic Animal Farm in Akron, Ohio. At the peak of his business, Petitioner was the caretaker for

more than eighty-two animals, including lions, tigers, and bears, which he displayed at fairs and

exhibits. Petitioner also successfully underwent periodic inspections and annually renewed his

exhibitor’s license.

        However, beginning in May 1999,2 employees of the Animal and Plant Health Inspection

Service (“APHIS”) cited Petitioner for a number of violations of the AWA and associated

regulations. Between May 1999, when Petitioner was initially found to be non-compliant, and

February 2006, Petitioner’s facilities were inspected by APHIS officials more than twenty-five times

and Petitioner was cited for more than 280 instances of non-compliance. These included minor

infractions such as using a cage with incorrect dimensions, as well as larger infractions concerning

drainage and sanitation at the facility, the quality of record keeping, the adequacy of food provided

to the animals, and the adequacy of veterinary care.3


        1
            In proceedings before the Secretary, Petitioner’s name was mistakenly spelled Lorenza Pearson.
        2
          Petitioner was previously cited during inspections occurring in May and November 1998; however,
these citations were later withdrawn.
        3
          Petitioner implies that the APHIS inspections were improper due to the participation of inspector
Dr. Norma Harlan, who allegedly cited Petitioner for infractions after he refused to cooperate in the
investigation of another animal handler. However, Petitioner has not briefed the issue of selective
enforcement, so we deem it waived on appeal. See Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651,
656 n.2 (6th Cir. 2008) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived”) (citing McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir.
1997)).

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                                           No. 09-4114

       Although the record reveals that Petitioner corrected many infractions brought to his

attention, some problems persisted across inspections, including inadequate sewage and sanitation,

lack of potable water for animals, preparation of unwholesome food, and inadequate veterinary care.

On June 12, 2002, following nearly a dozen inspections that revealed infractions, APHIS

commenced administrative disciplinary proceedings against Petitioner. However, these proceedings

stalled after the administrative law judge (“ALJ”) assigned to the case became unavailable.

Petitioner continued to operate his business and undergo periodic inspection.

       In addition to repeated APHIS investigations, Petitioner became the subject of a state

nuisance action brought by the Summit County Board of Health that resulted in the seizure of many

of his animals. As scrutiny mounted, Petitioner’s upkeep of his facilities and compliance with

animal welfare regulations appears to have decreased. During a May 2005 visit, Dr. Albert

Lewandowski, an APHIS inspector formerly employed by the Akron Zoo, described Petitioner’s

facilities as “squalid,” and oversaw the seizure of seven of Petitioner’s bears that remained without

adequate food, water, or veterinary care despite a previous warning. In 2005, Petitioner was also

cited for denying APHIS inspectors access to his facilities on two occasions, and for storing animals

offsite in an attempt to evade inspection. On October 5, 2005, APHIS sent Petitioner a license

termination letter that served to initiate the proceedings which form the basis of this appeal.

                                       Procedural History

       On June 14, 2002, following a dozen inspections that revealed infractions, disciplinary

proceedings were commenced against Petitioner and a hearing was held September 24–25, 2003

before ALJ Leslie Holt.       After APHIS and the United States Department of Agriculture


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                                            No. 09-4114

(“Respondents”) presented their case and had their witnesses cross-examined, ALJ Holt became

unavailable and proceedings were stayed before Petitioner was able to present his defense. The case

was later reassigned to ALJ Victor W. Palmer. Petitioner moved to have ALJ Palmer retry the case

in its entirety, claiming that retrial was necessary to permit credibility assessments of Respondents’

witnesses. This motion was denied. However, ALJ Palmer agreed to recall Respondents’ witnesses

for cross-examination. A hearing was initially scheduled for June 8–10, 2004, but proceedings were

repeatedly pushed back due to scheduling conflicts from both parties.

       On March 17, 2006, Respondents filed an amended complaint that covered infractions

occurring after June 2002. Respondents’ amended complaint also sought a cease and desist order,

civil sanctions in the amount of $100,000, and permanent revocation of Petitioner’s AWA license.

A hearing was scheduled for June 20–23, 2006, and April 4, 2006 was designated as the parties’

deadline to submit exhibits. However, Petitioner failed to submit exhibits by the deadline.

       On May 23, 2006, Petitioner’s home was destroyed in a fire, along with most of the

documents, veterinary reports, financial records, and photographs pertaining to Petitioner’s animal

farm. Citing the fire damage, on June 15, 2006 Petitioner moved to continue the hearing and

requested three additional months to prepare. This motion was denied on grounds that rescheduling

posed an administrative inconvenience, destroyed evidence could not be replaced, and Petitioner

could make his case using witness testimony. Petitioner renewed his request for a continuance at

the start of his June 20, 2006 hearing, and then again in the middle of proceedings. Petitioner also

sought to continue proceedings on the additional ground that a veterinarian who cared for several




                                                  4
                                               No. 09-4114

of his animals had a scheduling conflict and would be unable to testify. This request was denied on

grounds that Petitioner had been given adequate opportunity to assemble witnesses for trial.

       In a opinion dated April 6, 2007, ALJ Palmer issued a cease and desist order and permanently

revoked Petitioner’s exhibitor’s license on grounds that Petitioner repeatedly committed willful

violations of the AWA. However, ALJ Palmer declined to impose civil sanctions—reasoning that

permanent revocation would provide sufficient deterrence under the Act, such that fines and civil

sanctions were unwarranted.

       Petitioner appealed the ALJ’s decision to the Secretary of the United States Department of

Agriculture (“the Secretary”) on July 23, 2007. On August 21, 2007, Respondents cross-appealed

the ALJ’s decision not to impose sanctions. On July 13, 2009, a judicial officer acting as a designee

for the Secretary released a Decision and Order adopting the ALJ’s determination that Petitioner

repeatedly violated the AWA, as well as the ALJ’s decision to deny Petitioner’s motion for a

continuance and retrial, and to revoke Petitioner’s license. However, the judicial officer granted

Respondents’ cross-appeal, concluding that civil sanctions in the amount of $93,9754 were


       4
           The judicial officer explained his sanction award as follows:

       I assess Mr. Pearson a civil penalty of $275 for each violation committed on or before June
       23, 2005, and $375 for each violation committed after June 23, 2005. Except that, I assess
       Mr. Pearson $1,000 for each failure to have a responsible person available to allow APHIS
       officials to inspect his facility, in violation of section 2.126(a) of the Regulations (9 C.F.R.
       § 2.126(a)) (August 27, 2002, May 5, 2003, and May 11, 2005); $2,000 for housing animals
       at unapproved locations on January 18, 2004, in violation of section 2.5(d) of the
       Regulations (9 C.F.R. § 2.5(d)); $2,000 for housing animals at unapproved locations on
       January 30, 2004, in violation of section 2.5(d) of the Regulations (9 C.F.R. § 2.5(d));
       $2,000 for the January 30, 2004, failure to notify the Animal Care Regional Director of
       additional sites at which Mr. Pearson housed animals, in violation of section 2.8 of the
       Regulations (9 C.F.R. § 2.8); and $2,000 for each refusal to allow APHIS officials to inspect
       his entire facility, in violation of section 2.126(a)(4) of the Regulations (9 C.F.R. §

                                                      5
                                           No. 09-4114

appropriate in light of what he determined were Petitioner’s 281 individual violations of the AWA

and associated regulations. See In re Lorenza Pearson, d/b/a L&L Exotic Animal Farm, No.

02-0020, 2009 WL 2134028, at *30 (U.S.D.A. July 13, 2009).

       In this timely petition for review, Petitioner challenges the Secretary’s decision on procedural

grounds, and asserts that substantial evidence does not support his determinations.

                                          DISCUSSION

I.     Standard of Review

       “We review a decision of the U.S. Department of Agriculture under the Act only to determine

whether the proper legal standards were employed and [whether] substantial evidence supports the

decision.” Derickson v. U.S. Dep’t of Agric., 546 F.3d 335, 340 (6th Cir. 2008) (citing Gray v. U.S.

Dep’t of Agric., 39 F.3d 670, 675 (6th Cir. 1994) (internal quotation marks omitted). Substantial

evidence is evidence that “a reasonable mind might accept as adequate to support a conclusion.”

Gray, 39 F.3d at 675 (citing Murphy v. Sec’y of Health & Human Servs., 801 F.2d 182, 184 (6th Cir.

1986)). “The record, as a whole, is considered in determining the substantiality of evidence.”

Derickson, 546 F.3d at 340–41.

       Because the judicial officer “acts as the final deciding officer in lieu of the Secretary in

Department administrative proceedings,” Utica Packing Co. v. Block, 781 F.2d 71, 72 (6th Cir.

1986), we limit our review to his decision. See also Marine Mammal Conservancy, Inc. v. U.S.



       2.126(a)(4)) (May 12, 2005, and October 5, 2005). I find these violations are extremely
       serious because they thwart the Secretary of Agriculture’s ability to enforce the Animal
       Welfare Act.

In re Lorenza Pearson, 2009 WL 2134028, at *30 n.9.

                                                  6
                                           No. 09-4114

Dep’t of Agric., 134 F.3d 409, 410–411 (D.C. Cir. 1998) (judicial review is limited to “decisions of

the judicial officer on appeal”). When a judicial officer disagrees with certain conclusions of the

ALJ, “the standard does not change; the ALJ's findings are simply part of the record to be weighed

against other evidence supporting the agency.” Rowland v. U.S. Dep’t of Agric., 43 F.3d 1112, 1114

(6th Cir. 1995) (internal citations and quotation marks omitted).

       Finally, “when the issue is whether the agency followed the requisite legal procedure, our

review is limited, but exacting.” Coal. for Gov’t Procurement v. Fed. Prison Industs., Inc., 365 F.3d

435, 457 (6th Cir. 2004). When an agency is accused of violating a statute, we examine de novo

whether “statutorily prescribed procedures have been followed.” Id. (citing Nat’l Res. Def. Council,

Inc. v. Sec. & Exch. Comm’n, 606 F.2d 1031, 1045 (D.C. Cir. 1979)). Alternately, when an appeal

concerns an agency’s compliance with ambiguous procedural regulations, we consider only whether

the agency’s interpretation is “plainly erroneous or inconsistent.” Ky. Waterways Alliance v.

Johnson, 540 F.3d 466, 474 (6th Cir. 2008).

II.    Procedural Aspects of the Secretary’s Decision

       A.      The Secretary’s Decision Not to Retry Petitioner’s Case

       First, Petitioner argues that the Secretary erred by allowing ALJ Palmer to take over the

proceedings for ALJ Holt instead of granting Petitioner’s request to retry the case, and that he

suffered prejudice as a result because ALJ Palmer was unable to assess the credibility of

Respondents’ witnesses. United States Department of Agriculture (“U.S.D.A.”) regulations speak

directly to the issue of when abatement and retrial are proper, providing that: “[i]n case of the

absence of the Judge or the Judge’s inability to act, the powers and duties to be performed by the


                                                 7
                                              No. 09-4114

Judge under these rules of practice in connection with any assigned proceeding may, without

abatement of the proceeding unless otherwise directed by the Chief Judge, be assigned to any other

Judge.” 7 C.F.R. § 1.144(d).

        In denying Petitioner’s request to terminate proceedings and grant a retrial, ALJ Palmer

interpreted this provision to mean that “absent an order from the Chief Administrative Judge, the

case will proceed from the point at which the first administrative law judge became unavailable.”

The judicial officer affirmed. We do not believe this interpretation was “plainly erroneous or

inconsistent with the regulation.” See Intermodel Tech., Inc. v. Peters, 549 F.3d 1029, 1031 (6th Cir.

2008) (providing standard for reversal). Further, to address Petitioner’s concerns regarding witness

testimony, ALJ Palmer recalled all of Respondents’ witnesses and allowed them to be recross-

examined by Petitioner so that they could be impeached and their credibility examined anew. These

measures were adequate to ensure that Petitioner was not unduly prejudiced. Accordingly,

Petitioner’s procedural objection is not well taken.

        B.      The Secretary’s Denial of Petitioner’s Motion for a Continuance

        Second, Petitioner alleges that the Secretary erred by denying his motion for a continuance

after Petitioner’s home was destroyed in a fire. While we are troubled by the Secretary’s disposition

of this issue,5 a denial of a continuance is reviewed deferentially for abuse of discretion and

petitioners must establish prejudice. See, e.g., United States v. Lewis, 605 F.3d 395, 401 (6th Cir.



        5
          We have little doubt that Petitioner’s request for a continuance was based on a legitimate and
compelling reason, not one that was “dilatory, purposeful or contrived” or the product of Petitioner’s own
actions. Powell v. Collins, 332 F.3d 376, 396 (6th Cir. 2003). However, this alone does not compel a finding
of abuse of discretion. Id.

                                                     8
                                            No. 09-4114

2010); Fitzhugh v. Drug Enforcement Admin., 813 F.2d 1248, 1252 (D.C. Cir. 1987); NLRB v.

Hackenberger, 531 F.2d 364, 365 (6th Cir. 1976).

       In the instant case, Petitioner’s challenge to the Secretary’s decision fails because he is unable

to establish prejudice. Petitioner forfeited his right to submit evidence to the Secretary on April 6,

2006, two months prior to the fire, by failing to comply with the ALJ’s deadline regarding the

exchange and submission of exhibits. See 7 C.F.R. § 1.322(g) (“[N]o exhibit not provided to the

opposing party as provided above shall be admitted into evidence at the hearing absent a showing

of good cause.”). Even assuming that Petitioner’s late evidence would have been received, Petitioner

has failed to indicate, even on appeal to this Court, what if any destroyed evidence he would have

been able to reamass if given additional time. Without any such proffer, we are forced to conclude

that Petitioner was not prejudiced, and that no abuse of discretion occurred.

       C.      The Secretary’s Decision to Grant Respondents’ Cross-Appeal for Civil
               Sanctions

       Finally, Petitioner contends that the Secretary violated agency procedural rules when he

assessed civil sanctions against Petitioner pursuant to a cross-appeal that Respondents filed nearly

three months after the ALJ decision. Petitioner argues that Respondents’ cross-appeal contravenes

7 C.F.R. § 1.145(a) of the U.S.D.A. Rules of Practice, which provides that “[w]ithin 30 days after

receiving service of the Judge’s decision . . . a party who disagrees with the decision, any part of the

decision, or any ruling by the Judge or who alleges any deprivation of rights, may appeal the decision

to the Judicial Officer by filing an appeal petition with the Hearing Clerk.” Id.

       After reviewing the Secretary’s decision and pertinent regulations, we conclude that no legal

error occurred. As a preliminary matter, Petitioner’s reliance on 7 C.F.R. § 1.145(a) is misplaced.

                                                   9
                                            No. 09-4114

Cross-appeals are in fact governed by sub-section (b) of the provision, which provides that “[w]ithin

20 days after the service of a copy of an appeal petition and any brief in support thereof, filed by a

party to the proceeding, any other party may file with the Hearing Clerk a response in support of or

in opposition to the appeal and in such response any relevant issue, not presented in the appeal

petition, may be raised.” 7 C.F.R. § 1.145(b). This procedural regulation has been interpreted to

“permit a party to await the other party’s appeal before filing a cross-appeal raising any relevant

issue, without first filing a protective notice of appeal.” In re Daniel Sterbin & William Strebin, 56

Agric. Dec. 1095, at *32 (U.S.D.A. Nov. 26, 1997) (table) (describing the rule as well-settled).

Therefore, Respondents’ brief was not due until 20 days after Petitioner submitted his appeal, and

Respondents were entitled to raise the issue of sanctions, even though it was not raised in

Petitioner’s appeal petition.

          Respondents’ cross-appeal was also timely. Following the hearing, Petitioner and

Respondents were each granted a filing extension pursuant to the provisions of 7 C.F.R. §§ 1.143(d)

and 1.147(f). Petitioner’s appeal, which was initially due on May 9, 2008, was timely filed on July

23, 2007 pursuant to an extension. Respondents’ cross-appeal, initially due on August 13, 2007

based on the provisions of 7 C.F.R. § 1.145(b), was timely filed on August 21, 2007 pursuant to an

extension granted on August 8, 2007 that made August 21, 2007 the new due date. Because

Respondents cross-appealed for sanctions in accordance with agency procedures and pursuant to a

formal extension, we believe that the Secretary did not err when he took Respondents’ brief as

timely.




                                                 10
                                            No. 09-4114

       Nonetheless, despite no finding of legal error, we feel compelled to express our concern

regarding the Secretary’s handling of the imposition of the fine. Had Petitioner not exercised his

right to appeal, presumably he would only be facing revocation of his license, not revocation plus

a $93,957 fine. While the Secretary was fully authorized to impose the fine, this outcome may

discourage other petitioners from exercising their statutory rights.

III.   Evidentiary Support for the Secretary’s Determinations

       Challenging a handful of the ALJ’s factual findings, Petitioner contends that his license

revocation was not supported by substantial evidence. This argument is without merit. An AWA

license may be revoked following a single, willful violation of the Animal Welfare Act, see Cox et

al. v. U.S. Dep’t of Agric., 925 F.2d 1102, 1105 (8th Cir. 1991), and in the instant case the Secretary

based his determinations on a substantial, perhaps overwhelming body of evidence, including

investigation reports, photographs, witness testimony, and exhibits concerning nearly twenty-five

inspections of Petitioner’s facilities that revealed infractions. Petitioner’s failure to bring his

facilities into compliance after repeated warnings also makes clear that his violations were willful.

See Hodgins v. U.S. Dep’t of Agric., 238 F.3d 421, at *9 (6th Cir. Nov. 20, 2000) (table) (defining

willful conduct as conduct “knowingly taken by one subject to the statutory provisions in disregard

of the action's legality”). Therefore, we affirm the Secretary’s findings.

                                          CONCLUSION

       The Secretary did not commit procedural error with respect to the proceedings, and the record

substantiates that Petitioner failed to conform his conduct to the requirements of the Animal Welfare

Act, despite having numerous opportunities to do so. Therefore, the petition for review is DENIED.


                                                  11
