FAST Continues To Monitor Legal Matters

Jul 26th, 2022 | By | Category: News

 

After the 2016 Celebration, APHIS filed 193 administrative cases alleging violations of the HPA. In 2017, APHIS defaulted eight participants when their answer was a few days late. Two lawyers who had represented the industry’s interests agreed to appeal these ALJ decisions. Six cases were appealed to the Court of Appeals for the District of Columbia. FAST, through a donor, supported these appeals not because of the individuals but the cases were positioned well for the industry to address legal ramifications that would be beneficial for everyone in the industry; the individuals continued to pay their own legal expenses to defend their individual cases. Despite our efforts to communicate otherwise, FAST did not pay the personal legal expenses for these individuals but merely used the current status of their cases to present a legal argument that, if successful, would be of benefit to all in the industry. Five issues were presented, and the court decided one, that the USDA’s ALJ was not appointed as required by the Constitution’s Appointments Clause. The default orders were reversed, and the cases were remanded. This was exactly the outcome we could have hoped for in FAST supporting this particular effort in the adjudication process which has been and will continue to be helpful to industry participants. Seven of the 193 cases continue to be pending, represented by the lawyers who handled the appeals. They have presented the four unresolved issues in the administrative proceedings before an ALJ.
These four issues apply in any HPA enforcement proceeding; a brief description follows.
1. The USDA Judicial Officer is an inferior officer appointed by the Secretary. However, the Secretary has delegated to the Judicial Officer final decision-making authority in enforcement proceedings. Only a principal officer, appointed by the President with the Senate’s consent, can make final decisions. The Judicial Officer is not lawfully appointed.
2. USDA ALJs are appointed by the Secretary as inferior officers. ALJs’ decisions are appealable only to the Judicial Officer, also an inferior Officer. Only a principal officer can make final decisions for the agency. USDA ALJs are not constitutionally appointed because their decisions become final without possible review by a principal officer appointed by the President with Senate confirmation.
3. USDA ALJs cannot be fired by the President or Secretary. They can only be fired for good cause as determined by the Merit System Protection Board, whose members also have good cause tenure protection. The President’s duty to see to the enforcement of the laws is impeded if the officers serving him cannot be fired for disobedience. ALJs serve unconstitutionally in violation of the Constitution’s separation of powers doctrine.
4. HPA §1825(c) authorizes a respondent to be disqualified from events for HPA violations, but only if the respondent has (a) been criminally convicted of an HPA violation, or (b) previously paid a fine assessed by the Secretary for an HPA violation, or (c) is subject to a final order issued by the Secretary assessing a fine for an HPA violation, which has not been paid. APHIS consistently seeks to assess disqualifications against those who have never been found in violation of the HPA, by ignoring these three jurisdictional preconditions. First Offenders cannot be disqualified in the initial proceeding in which they are found to have violated the HPA – they can only be fined.
These motions and briefs are available to lawyers and respondents in HPA enforcement proceedings upon request to FAST. Lastly, key industry organizations have been working collaboratively to provide information to legislators concerning the PAST Act as it will be coming up for a committee hearing shortly. We are presenting inspection data and economic impact data, both of which favorably support our position that the proposed PAST Act does not support the need to make extreme changes, particularly in our performance horse. Our industry organization leaders and our lobbyist are working well together in presenting alternative data, including alternative legislation, that more appropriately addresses industry concerns with regard to objective inspections.

Dr. Kasey C. Kesselring, President

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