Case: 20-60003     Document: 00515521861         Page: 1    Date Filed: 08/10/2020




            United States Court of Appeals
                 for the Fifth Circuit                            United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                   August 10, 2020
                                No. 20-60003
                                                                    Lyle W. Cayce
                                                                         Clerk

 Douglas Keith Terranova, an individual; Terranova
 Enterprises, Incorporated, a Texas Corporation,

                                                                    Petitioners,

                                     versus

 United States Department of Agriculture,

                                                                   Respondent.


                   Petition for Review of an Order of the
                  United States Department of Agriculture
                 AWA Docket Nos. 15-58, 15-59, 16-37, 16-38


 Before Wiener, Haynes, and Costa, Circuit Judges.
 Per Curiam:*
        Petitioners Douglas Keith Terranova and Terranova Enterprises, Inc.
 (collectively, “Petitioners”) seek review of a decision and order of the
 Secretary of the United States Department of Agriculture (“USDA”)
 determining that they violated various provisions of the Animal Welfare Act


        *
          Pursuant to 5th Circuit Rule 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 opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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                                  No. 20-60003


 (“AWA”) and its implementing regulations, imposing civil penalties, and
 revoking the exhibitor license granted to Terranova Enterprises, Inc. We
 conclude 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. We therefore deny the petition for review.
                                        I.
        Petitioners provide wild animals such as tigers and monkeys for
 movies, circuses, and other entertainment. Terranova Enterprises, Inc. holds
 an exhibitor license issued by the Animal and Plant Health Inspection Service
 (“APHIS”), an agency of the USDA. In January 2015 and January 2016,
 APHIS filed complaints against Petitioners, alleging that: (1) they willfully
 violated multiple provisions of the AWA and the regulations promulgated
 thereunder and (2) they knowingly violated a cease and desist order issued in
 2011 ordering them to refrain from future violations of the AWA.
        After consolidating the complaints and conducting a hearing, the
 Administrative Law Judge (“ALJ”) issued a decision concluding that
 Petitioners committed four violations of the AWA, that three of those
 violations were willful, and that APHIS failed to prove the remainder of the
 alleged violations by a preponderance of the evidence. The ALJ issued a cease
 and desist order directing Petitioners to refrain from further violations of the
 AWA, suspending the exhibitor license issued to Terranova Enterprises, Inc.
 for thirty days, assessing a $10,000 penalty against Petitioners for their
 violations of the AWA, and imposing a $11,550 civil penalty for Petitioner’s
 knowing failure to obey a prior cease and desist order.




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                                     No. 20-60003


        Both parties appealed the ALJ’s decision and order to a Judicial
 Officer of the USDA. 1 The Judicial Officer concluded that Petitioners
 committed each of the violations of the AWA alleged in the consolidated
 complaints. The Judicial Officer revoked the exhibitor license issued to
 Terranova Enterprises, Inc., imposed a $35,000 joint and several penalty
 against Petitioners for their violations of the AWA, and imposed a $14,850
 civil penalty against each of the Petitioners for their knowing failure to obey
 a prior cease and desist order.
        After the Judicial Officer denied Petitioners’ motion to reconsider,
 Petitioners timely petitioned this court for review of the Judicial Officer’s
 decision and order. Petitioners complain that the determinations of the
 Judicial Officer that they violated the AWA are not supported by substantial
 evidence, that the Judicial Officer improperly shifted the burden of proof to
 them, and that the Judicial Officer abused her discretion in revoking the
 exhibitor license issued to Terranova Enterprises, Inc.
                                          II.
        We have jurisdiction to review the final order of the Secretary, as
 issued by a Judicial Officer, pursuant to 7 U.S.C. § 2149(c). Our review of
 “the decision of an administrative agency is narrow.” Allred’s Produce v. U.S.
 Dep’t of Agric., 178 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); Cmty. Care, LLC v. Leavitt, 537 F.3d
 546, 548 (5th Cir. 2008). We will not substitute our own judgment for that of
 the Secretary, and we will only set aside the order if it is “unwarranted in law


        1
           The Judicial Officer has final authority to issue decisions on behalf of the
 Secretary in formal adjudicatory proceedings. See 7 C.F.R. § 2.35(a).




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                                  No. 20-60003


 or without justification in fact.” Allred’s Produce, 178 F.3d at 746 (citations
 omitted). This deferential standard requires that Judicial Officer’s factual
 findings be upheld as long as they are supported by substantial evidence.
 Knapp v. U.S. Dep’t of Agric., 796 F.3d 445, 453–54 (5th Cir. 2015)
 “Substantial evidence is more than a scintilla, less than a preponderance, and
 is such relevant evidence as a reasonable mind might accept as adequate to
 support a conclusion.” Id. (quoting Ellis v. Liberty Life Assurance Co. of Bos.,
 394 F.3d 262, 273 (5th Cir. 2004) (internal quotation marks and citation
 omitted)). In making factual findings, the Judicial Officer may substitute her
 judgment for that of the ALJ. 5 U.S.C. § 557(b); Knapp, 796 F.3d at 454.
 However, when the Judicial Officer does not accept the findings of the ALJ,
 we must examine the evidence and findings of the Judicial Officer more
 critically than we would if the Judicial Officer and the ALJ were in agreement.
 Id.
        We review the Judicial Officer’s legal conclusions de novo but with
 the appropriate level of deference to her interpretations of the AWA and of
 USDA regulations. Knapp, 796 F.3d at 454. We review the Judicial Officer’s
 choice of sanction for abuse of discretion. Id. We may overturn the sanctions
 only if they are “unwarranted in law or without justification in fact.” Id.
 (quoting Butz v. Glover Livestock Comm’n Co., 411 U.S. 182, 186 (1973)).


                                       III.
                                       A.
        Petitioners contend that the Judicial Officer improperly shifted the
 burden of proof to them, requiring them to disprove the allegations that they
 violated the AWA. Pursuant to 5 U.S.C. § 556(d), the USDA had the burden
 of proof to establish that Petitioners violated the AWA. The Judicial Officer
 did not shift the burden of proof to Petitioners when she weighed the




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                                         No. 20-60003


 evidence presented. Rather, she concluded that the preponderance of the
 evidence supported the conclusion that Petitioners committed the alleged
 violations.
         Petitioners also contend that the findings of the Judicial Officer that
 they violated various provisions of the AWA are not supported by substantial
 evidence. Both the ALJ and the Judicial Officer determined that Petitioners
 committed the following violations of the AWA:
         (1) August 2, 2010 willful violation of 7 U.S.C. § 2146(a) and 9
         C.F.R. § 2.126(a) by failing to have a responsible person
         available to provide access to APHIS officials to conduct
         compliance investigations;
         (2) September 28, 2012 violation of 7 U.S.C. § 2146(a) and
         9 C.F.R. § 2.126(a) by failing to provide access to allow APHIS
         officials to conduct an inspection; 2
         (3) April 20, 2013 willful violations of 9 C.F.R. §§ 2.131(b)(1),
         (c)(1), and (d)(3) by failing to handle an adult tiger with
         sufficient distance and/or barriers between the tiger and the
         public and failing have the tiger under the direct control and
         supervision of a knowledgeable and experienced handler; 3 and




         2
           The ALJ concluded that this violation of the AWA was not willful. However, only
 one violation of the AWA must be willful to revoke or suspend an exhibitor’s license. See 7
 U.S.C. § 2149; 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); see also Pearson v. U.S. Dep’t of Agric.,
 411 F. App’x 866, 872 (6th Cir. 2011) (same). Whether the September 28, 2012 violation
 was willful is not material.
         3
           The ALJ treated this incident as a single violation of the AWA. The Judicial
 Officer concluded that this incident resulted in two violations of the AWA because
 Petitioners (1) failed to handle an adult tiger with sufficient distance and/or barriers
 between the tiger and the public, in violation of 9 C.F.R. § 2.131(c)(1) and (2) failed to have
 the tiger under the direct control and supervision of a knowledgeable and experienced
 handler, in violation of 9 C.F.R. § 2.131(d)(3).




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                                       No. 20-60003


         (4) November 14-19, 2015 willful violations of 9 C.F.R. §
         2.126(c) by failing to timely submit an accurate travel itinerary
         for several animals. 4
 We agree that there is substantial evidence to support these violations.
         The consolidated complaints also allege that petitioners committed
 numerous violations of the AWA by failing to meet the minimum standards
 promulgated under Part 3 of the Act. Those violations included the following:
         (1) March 10, 2011 violations of 9 C.F.R. §§ 3.125(a) and 3.128
         by failing to maintain the tiger enclosures properly;
         (2) September 25, 2013 violations of 9 C.F.R. §§ 3.76(c),
         3.125(a), and 3.131(c) related to facilities upkeep;
         (3) January 8, 2015 violation of 9 C.F.R. § 3.127(b) by failing to
         provide tigers with adequate shelter from inclement weather;
         (4) May 13, 2015 violation of 9 C.F.R. § 2.126(c) by failing to
         timely submit an accurate travel itinerary for two groups of
         tigers;
         (5) May 13, 2015 violations of 9 C.F.R. §§ 3.75(b), 3.75(c)(1)(i),
         3.77(c), 3.125(a), and 3.131(c) related to minimum standards
         for housekeeping and housing;
         (6) May 13, 2015 violation of 9 C.F.R. § 3.81 by failing to make
         an environmental enrichment plain available on request.
 Petitioners maintain that there is not substantial evidence to support the
 aforementioned violations. 5 Even under the more critical standard employed


         4
            The ALJ treated this incident as a single violation of the AWA. The AWA
 provides that “[e]ach violation and each day during which a violation continues shall be a
 separate offense.” 7 U.S.C. § 2149(b). The Judicial Officer concluded that this incident
 resulted in six violations of the AWA because each day of the November 14-19 travel
 itinerary violation constituted a separate violation of the Act.
         5
           The Complaints also alleged, and the Judicial Officer agreed, that Petitioners
 violated 9 C.F.R. § 2.40(a)(1) on May 13, 2015 by failing to have a complete written
 program of veterinary care. In their principal brief on appeal, Petitioners do not challenge




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                                       No. 20-60003


 when the ALJ and Judicial Officer disagree, see Knapp, 796 F.3d at 454, we
 conclude there is substantial evidence to support these violations.


                                             B.
         Petitioners also contend that the Judicial Officer abused her discretion
 in revoking the exhibitor license issued to Terranova Enterprises, Inc. The
 AWA authorizes the Secretary to revoke an exhibitor’s license following a
 single, willful violation of the Act. See 7 U.S.C. § 2149; Cox, 925 F.2d at 1105;
 see also Pearson, 411 F. App’x at 872. Further, APHIS recommended that the
 exhibitor license issued to Terranova Enterprises, Inc. be revoked. Although
 the recommended sanction is not dispositive, “[t]he administrative
 recommendation as to the appropriate sanction is entitled to great weight, in
 view of the experience gained by the administrative officials during their day-
 to-day supervision of the regulated industry.” See Knapp, 796 F.3d at 466
 (quoting In re S.S. Farms Linn Cnty., Inc., 50 Agric. Dec. 476, 497 (U.S.D.A.
 1991)). Petitioners committed more than one willful violation of the AWA,
 so we cannot say that revocation of the license issued to Terranova
 Enterprises, Inc. is “unwarranted in law or without justification in fact.”
 Knapp, 796 F.3d at 454 (quoting Butz, 411 U.S. at 186).
                                             IV.
         The petition for review is DENIED.




 the Judicial Officer’s determination related to that violation. Any argument regarding the
 May 13, 2015 violation of 9 C.F.R. § 2.40(a)(1) is therefore waived. See, e.g., Goodman v.
 Harris Cty., 571 F.3d 388, 399 (5th Cir. 2009) (concluding that issues not briefed on appeal
 are waived).




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