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DAUL v. MECKUS

August 24, 1995

DEAN R. DAUL, Plaintiff,
v.
KEVIN F. MECKUS, et al., Defendant.



The opinion of the court was delivered by: PAUL L. FRIEDMAN

 Having considered defendants' motion, plaintiffs opposition, all other filings made by plaintiff, defendants' reply and the entire record herein, the Court concludes that defendants Kevin Meckus, John Campbell and Donald Campbell are insulated from suit by the doctrine of absolute immunity. The Court finds that defendants Robert Ertman and William Struck performed their duties in good faith and with reasonable judgment, consistent with applicable statutes and regulations. They therefore are protected by qualified immunity.

 I. FACTUAL BACKGROUND

 On January 15, 1985, Mr. Daul's license as a Class A Dealer under the Animal Welfare Act ("AWA") was officially terminated by the USDA for failure to submit the annual report and license fee required by the AWA regulations. 9 C.F.R. § 2.5. On September 25, 1985, Mr. Daul was served with a complaint alleging violations of the AWA and its corresponding regulations for selling guinea pigs to a research facility without a license on two separate occasions, refusing to allow USDA inspectors to examine his premises and refusing to permit inspectors access to his business records. 7 U.S.C. §§ 2134, 2146(a); 9 C.F.R. § 2.126 (1985). The complaint informed him that rules and regulations of the USDA required him to file an answer within 20 days of the receipt of the complaint, that failure to file an answer or plead specifically to any allegation would constitute an admission, and that he had a right to request an oral hearing. It also informed him that failure to file a timely answer would constitute a waiver of the oral hearing. In re Dean Paul, 45 Agric. Dec. 556, 561 (1986). *fn2"

 Daul's answer, which was dated October 15, 1985, was not received by the USDA until October 21, 1985. It stated in its entirety:

 
This is in response to AWA Docket #360. I will not set forth any explanation at this time. I request a hearing in the city of Green Bay.

 The USDA found that the answer was untimely because the regulations then in force required the answer to reach the USDA Rearing Clerk within 20 days in order to be timely filed. 7 C.F.R. § 1.147(d) (1977), now 7 C.F.R § 1.47(g). The regulations also provided that for the purposes of the USDA proceedings, Mr. Daul's failure to deny or otherwise respond to the allegations in the complaint constituted an admission of the allegations. 7 C.F.R § 1.136(c). The USDA therefore determined that Mr. Daul's case warranted a default decision under 7 C.F.R. § 1.136(c).

 The USDA, represented by defendant Kevin Meckus, filed a motion for proposed decision. In his response to the proposed decision, Mr. Daul stated that "there was nothing to deny as all of the allegations are correct. . . . the thing that needs to be resolved is whether any laws have been violated." In re Dean Paul, 45 Agric. Dec. at 562. Based upon the record, Administrative Law Judge John Campbell entered a decision against plaintiff, finding that Mr. Daul had violated 7 U.S.C. § 2134, which requires a valid license, and 7 U.S.C. § 2146 and 9 C.F.R. § 2.126, by refusing access to his premises and records. ALJ Campbell assessed the then applicable maximum fine of $ 1,000 for each of the three counts and ordered the total fine of $ 3,000 to be paid immediately. 7 U.S.C. § 2149(b). The ALJ notified Mr. Daul of this decision on December 7, 1985 and informed him that he had the right to appeal the decision, the fine or both, within 30 days.

 Mr. Daul filed a late appeal, contending that he voluntarily allowed his Animal Welfare license to expire in November 1984 by orally informing a USDA inspector that he did not want to file an annual report or renew his license. Acting upon the assumption that his license was terminated, Mr. Daul argued that he had no further obligations under the AWA and that he therefore was justified in denying the inspectors access to his premises and records. Judicial Officer Donald A. Campbell issued a decision holding that plaintiff could not assert this and other new defenses on appeal, but that even if he were permitted to do so the record supported findings of violations of the AWA and the implementing regulations. Mr. Campbell specifically found that the record showed both that Mr. Daul had failed properly to terminate his license by making an oral statement to an inspector in 1984 and that he effectively had conceded in his answer and response that the allegations were correct by failing to set forth any defenses. In re Dean Paul, 45 Agric. Dec. at 561-62. Mr. Daul petitioned for reconsideration, but that petition was denied. Mr. Daul did not appeal the decision of the Judicial Officer to the United States Court of Appeals as required by statute. 7 U.S.C. § 2149.

 Mr. Daul wrote to USDA attorney Robert Ertman on September 10, 1987, objecting to the imposition of the penalty and the legality of administrative offset to collect the penalty. Mr. Daul also demanded that the USDA reimburse him $ 6,715 for the costs he had incurred as a result of the dispute. Finally, Mr. Daul stated that he did not fall under the AWA definition of a licensed dealer because he did not derive more than $ 500 from the sale or negotiation of the purchase or sale of any wild animal during any calendar year. See 7 U.S.C. § 2132(f)(ii). The USDA considered the letter as a request for a review of the determination of debt. Government's Exhibit ("Govt's Ex.") 3.

 Mr. William Struck, a Review Official with the Inspection Service, reviewed Mr. Daul's case and found that the decision by the Judicial Officer was final and conclusive, that the reasons raised by plaintiff were the same ones that had been found lacking by the Judicial Officer, and that his arguments about the inappropriateness of administrative offset were without merit. Mr. Struck ordered that the debt be collected. Mr. Daul again protested the collection by administrative offset. The USDA, by letter dated April 18, 1989, and signed by Mr. Robert Ertman, responded that Mr. Daul had failed to state any valid reasons why administrative offset was not appropriate. Govt's Ex. 3.

 More than five years later, Mr. Daul filed this lawsuit, alleging that Mr. Kevin Meckus breached his legal duty by subjecting plaintiff to litigation that lacked any factual or legal basis, that Administrative Law Judge John Campbell breached his lawful duty by applying the AWA and regulations to Mr. Daul's actions when he was no longer a dealer, that Mr. Donald Campbell and Mr. William Struck violated their duties by upholding the ALJ's decision and order, and that Mr. Robert Ertman violated his duty to apply the "specific" collection means rather than the "administrative offset" method of collecting the USDA fine pursuant to 7 U.S.C. § 2149(b). Complaint PP 17, 21, 25, 29, 33. Mr. Daul alleges that these breaches of duty culminated in a violation of his Fifth Amendment due process rights which directly and/or indirectly resulted in the injury of having to litigate a factually and legally deficient complaint, mental anguish, and ...


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