Thursday, February 9, 2017

USDA doesn't prosecute 99% of Animal Welfare Cases (or how to waste $25 million dollars and get promoted)

This post discusses USDA and APHIS' failure to prosecute Animal Welfare cases under the leadership of Bernadette Juarez at Investigative and Enforcement Services. As you will see below (based on case closure data released by APHIS), less than 1% of Animal Welfare cases are ever prosecuted.

When I worked at Animal Care, the Animal Care Inspectors (who were usually very dedicated to animal welfare) were very frustrated by IES.  It was disheartening to them to see the same violators get away with the same violations over and over again with impunity (due to IES' failure to process cases).  The one solace that they had (that helped them believe their jobs had value and actually helped protect animals) was that, until this year, AC Inspection Reports were publicly available through the website. So even though AWA violators would almost certainly never face any legal consequences, at least the AWA violations were public through the the Animal Care search tool (which was easy to use).  Many animal welfare groups would encourage consumers to look at the inspection reports in order to vet various regulated entities before giving them business (such as pet stores, zoos, breeders).  It was a "name and shame" method which had the effect of encouraging compliance with the AWA so as not to end up with a bad inspection report that anyone could see.

However, now USDA and APHIS has shut down the one effective method of encouraging compliance. Similar to removing Warnings (7060s) from the website, Juarez also now has disabled the AC Inspection Report Search Tool for the same dubious reasons.  USDA has now effectively ensured that animal abusers can continue to abuse animals with impunity and very likely nobody will ever find out about it.

I spoke in my previous post about how a law is only as good as its enforcement.  I also mentioned Bernadette Juarez, who ran IES from around 2008 until 2016 (first as a Deputy Director, then as a Director).  This post is going to substantiate my claims that under Bernadette Juarez's tenure, IES was ineffective and botched cases so that Animal Welfare Act (AWA) and Horse Protection Act (HPA) violators could rest easy knowing that there was a 99% chance their case would never be prosecuted and they would face no real consequences.  As a result of Juarez's failures, she was promoted and  is now the Deputy Administrator of Animal Care where she has quickly gone on to further protect AWA and HPA violators.

Here is APHIS' website description of Bernadette : 

Bernadette Juarez, Deputy Administrator, Animal Care (AC) Program 
Ms. Juarez leads the program’s many employees in protecting and ensuring the welfare of millions of animals nationwide that are covered under the Animal Welfare Act (AWA) and the Horse Protection Act (HPA).  She also oversees the collaborative work done at AC’s Center for Animal Welfare, building critical partnerships domestically and internationally, while seeking to improve regulatory practices and develop training and educational resources.
Prior to being named Deputy Administrator in February 2016, Ms. Juarez served with APHIS’ Investigative and Enforcement Services (IES), first as Deputy Director for nearly 5 years and then as Director beginning in 2013.  As Director, Ms. Juarez was responsible for leading investigations of alleged AWA and HPA violations, as well as all other APHIS-administered statutes and regulations, and pursuing enforcement actions where warranted.  She also transformed the unit’s ability to complete investigation and enforcement actions nearly 50% faster by streamlining its business processes and focusing on the highest priority investigations.  Ms. Juarez’s experience enforcing the AWA and HPA began prior to her joining APHIS as a trial attorney in USDA’s Office of the General Counsel from 2002 to 2009.  In over 6 years, she represented APHIS in numerous AWA and HPA administrative enforcement proceedings. 

That statement may be true, but it is nothing to applaud. Under Juarez's leadership 90% of cases were closed without any results (real or otherwise).  That she closed cases 50% faster than her predecessors is not an achievement in any sense of the word, given how few cases under her tenure ever led to any consequences for the violators. The Agency could close cases 100% faster by just throwing them out, which is essentially what Juarez did. 

As a background, APHIS' Investigative and Enforcement Services (IES) describes itself as providing investigative, enforcement, and regulatory support services to four APHIS programs—Animal Care (AC), Biotechnology Regulatory Services (BRS), Plant Protection and Quarantine (PPQ), and Veterinary Services (VS).  Animal Care's mission is to enforce the Animal Welfare Act (AWA) and the Horse Protection Act (HPA).  To that end, Animal Care sends its inspectors (hereinafter "AC inspectors") to AWA-regulated entities (such as exhibitors, research facilities, and breeders) to inspect whether those entities are in compliance with the AWA.  Animal Care also sends inspectors to some Tennessee Walking horse shows to ensure that the trainers, show managers, and industry officials are in compliance with the HPA.  After Animal Care has done its inspections then, depending on the severity or the frequency of violations, Animal Care must refer the case to IES.  IES' role is to research the case (facts and law) to determine if the case is viable for administrative prosecution, at which point the case is forwarded to USDA's Office of General Counsel (hereinafter "USDA OGC"). In addition, IES prepares the cases they forward to USDA OGC in anticipation of eventual litigation.  IES also has discretion to settle cases before they go to court and to close cases where they do not find a legal violation. Animal Care is required to process almost all cases through IES.  Hence, IES has the power and capability to ruin nearly every AWA or HPA case.

A few years ago, I put in FOIA request for IES' budget.  In response, I received documentation regarding APHIS's budget from FY2011-FY2014.  Give or take, IES got about $14 million a year from congress (which comes straight from the taxpayers).  AWA and HPA cases make up more than a fourth of IES's caseload.  So over eight years of running IES, Juarez likely wasted more than $25 million dollars of taxpayer funds subverting the mission of APHIS and assisting those who willfully violate the AWA and HPA.

In 2016, another FOIA requester received and shared information regarding IES' closed investigations from 2012-2016.  Almost all of these closed cases were opened post-2008 (at which time Bernadette had started leading IES), so for the most part, the lifetime of these cases (from opening to closing) all happened under Juarez's leadership of IES.  Although the FOIA requested all IES closed cases, I limited my analysis below to AWA and HPA cases, about which I have a lot of familiarity.  I previously served in Animal Care, but I worked closely with both IES and USDA OGC, so I've followed AWA and HPA cases from inspection through final action and I understand the process.

The above-mentioned FOIA request produced 292 pages of records and each page contained about 65 cases with the case number, subject name, open date, close date, violation date, program, subprogram, investigation required (yes/no), final action code, final action date.  I could not go through 18,900 of these cases one-by-one (I tried, hence the partial highlighting on the PDF linked here).  The document is a PDF, so I was also unable to manipulate it to isolate the data (as an Excel spreadsheet would have allowed).  What I was able to do, however, was use terms that I knew would be related to AWA and HPA cases in order to sort through the chart for only the AWA/HPA cases and outcomes. I have linked to all the original documents upon which my analysis is based.  I have also gone into a detailed explanation of my methodology so that anyone can duplicate my numbers if they wish

In order to come up with the total number of AWA/HPA cases, I used acrobat search tool to search for terms that I know belong to AWA/HPA cases.  Below is the breakdown of the numbers of AWA/HPA cases I found based on each search term I used.

Total number of “Horse Protection cases”:  1294 cases
Total number of “HP unilateral sore”: 256
Total number “Exhibitor”: 484
Total number “HP bilateral sore”: 246
Total number of “HP Foreign Substance” 995
Total number of “Research Facility”: 119
Total number “Dog Dealer”: 857
Total number “Other Dealer” 130
Total number “AWA license”: 18
Total number “AWA identifiers”: 26
Total number “Intermediate handlers”: 23
Total number “Carrier”: 125
Total number “HP scar”: 345
Total number “Random source”: 50
Total number “HP disqualification”: 5
Total number “other HPA violations”: 47
Total number “Carrier”: 115
Total number of “AC none”: 34
Total number “HP Disqualification”: 5
Total number “Inspection Refusal”: 2
Total number of Animal Welfare cases:  5176

5176 AWA/HPA cases, means that AWA/HPA cases accounted for 27.39% of all the cases closed in IES from 2012-2016.  My suspicion is that the outcomes below remain consistent for all of IES (i.e. the other 72.61%), however my analysis was limited to AWA/HPA cases.

Next, I had to isolate the outcomes for AWA/HPA cases.  In order to do so, I used acrobat search to search for the terms for the various outcomes, exported that to a CSV file and then sorted that file and used excel's count function to count out the cases that were either HPA or AWA.

AWA/HPA case results
Percentage of all AWA/HPA cases
Warning (7060)
Denied / Declined
Consent Decision
Insufficient Evidence
Declined to Pursue
No Violation
Statute of Limitations
Fact Finding
Decision and Order
Complaint Dismissed
Submitted to external agency
AWA license denied
External Penalty
Informal Conference
Letter of Warning
Letter of Information
Although these outcomes only account for 95% of the cases, I am not perturbed because the IES closed case chart had many cases that were blank in the final outcome code box, so the missing 281 outcomes is most likely due to that.  It is also possible I somehow missed a term, but unlikely and, given the results I have, I am fairly confident that none of my assertions would change based on the missing 5%.

The first thing you should notice seeing this data is that this is not good.  Maybe under Juarez's tenure, the IES cases were processed 50% faster, but they were also processed 100% terribly. Out of 5176 cases, less than 1% of cases processed through IES actually made it into the litigation stage (meaning out of IES and forwarded to USDA OGC who then filed a complaint in an administrative court against the alleged AWA/HPA violator).  Out of that 1%, USDA OGC lost or dropped a third of those (that's what "Complaint Dismissed" means). The fact that one third of the 1% of cases that made it into court were lost or dropped in itself undermines any argument that the low percentage of cases forwarded to OGC and litigated was the result of IES being thorough and only sending the strongest cases up to USDA OGC.  If these 1% were truly strong cases, then one third of them would not have been dropped (without any settlement). Only 35 cases ever resulted in a "Decision and Order" (meaning the court  made a judgment).  Having done a cursory glance at these 35 cases, many of those lost as well, in fact, USDA OGC and APHIS' performance in court was so bad, that a judge even awarded defendants attorneys fees of thousands of taxpayer dollars in one case I examined! Even where those cases were somewhat successful, the sanctions were usually a slap on the wrist. 

But one could argue that in litigation, most cases settle out of court, so maybe IES just settled most of  the cases.  Lets look at the settlement data.  There are three ways that APHIS settles these cases.  Either it could involve a court ("Consent Decision" ) or it could happen while its still at IES (through a "Settlement" or a "Stipulation").  Lets pretend that these settlements actually were effective at deterring future abuse.  Even using that fiction, only 8.48% of cases were settled.  Which means that even assuming that USDA OGC prevailed in most of the 35 cases that they took to court which had a Decision and Order and that all the settlements were effective, you still have a "win" rate of less than 9%, hardly something to be proud of.  I would mention here that these assumptions are not the case, in fact, the settlements generally involve nominal amounts of money, if any.  The largest settlements come from large animal-research facilities, such that the total amount is insignificant for the facility and probably considered the cost of doing business rather than a deterrent  (like the NYU case where APHIS let the defendants pay a $25,000 settlement essentially - which is nothing for an entity as large as NYU).  Many settlements only require an admission of wrongdoing and a promise not to do it again.

So using this data alone, if you get caught violating the AWA or HPA then there is a 91% chance that you will face no legal consequences whatsoever and less than a 9% chance of having to compromise with a settlement.  There is less than a .5% chance of losing in court ( and even if you did lose in court, the administrative law judge will usually lower the sanctions requested by APHIS significantly).  In other words, AWA/HPA violators can continue violating with impunity.

By far, the primary method IES used to "process" cases was to close them out with a Warning (called a "7060" in APHIS parlance).  Close to 70% of cases were closed out with a 7060 .  A 7060 is a letter that APHIS sends to the alleged AWA/HPA violator that essentially says “we think you broke the law; we’re not going to do a thing about it but here’s a letter for your information.”  There is no legal consequence to a 7060.  AWA and HPA violators often receive  multiple 7060s over the years.  The only actual consequence of a 7060 used to be that it was posted on APHIS' website under Enforcement Actions (and posting this information presumably had the"name and shame" deterrent effect - assuming that anyone actually knew how to navigate APHIS' badly organized website to find that information).  However this week, Juarez and APHIS decided to further protect AWA/HPA violators by taking that information off the website (they claim it's for FOIA and Privacy Act reasons.  I worked in FOIA for years and that explanation is bogus).  Because this information isn't even publicly available anymore, now if you violate the HPA or AWA you'll just get a private 7060 in the mail to let you know that APHIS thinks you broke the law but has no intention of ever doing their job.  

The terms "Denied/Declined", "Insufficient Evidence", "Declined to Pursue", and "No Violation" all mean  that IES decided to drop the case completely.  I can't speak to the validity of this, as I have not specifically examined these cases (so they may have been good cases that just got dropped, or, more likely these were bad cases that should never have been pursued to begin with - hence APHIS didn't even make the pretend-effort of issuing a 7060).   I can say, anecdotally, that often cases processed through IES were based on allegations that, even if true, were not actually violations of the AWA or HPA.  During my detail at IES, I even caught Bernadette Juarez herself make this type of mistake. She was moving a case through IES based on an allegation of breeding without a license, but she was misinterpreting how the regulations count  the number of "breeding animals".  When I pointed out to her that the alleged violator's situation fit within the de minimus exemptions in the AWA regulations (the comments to the regulations specifically talked about this type of situation and specifically said that APHIS would consider it de minimus such that it would not require a license), Juarez replied that she was too busy to research the regulations. I guess it was too much to ask that a former USDA OGC attorney who specialized in Animal Care cases and was running IES (the stated purpose of which is to check for the legal sufficiency of cases) should actually read and understand how to interpret her own Agency's regulations! 

A bit less than 1% of the cases were closed because of the "Statute of Limitations", which means that the case sat in IES for so long, that the time-period for enforcement ended.  Most legal matters have a window of time during which they can pursued, that's called the statute of limitations; if you are outside of that time period, then you can no longer pursue a case.  Statutes of limitations apply to federal regulations as well, so this 1% of cases sat in IES so long that the federal government could no longer pursue any action against the violator.  Another thing you'll notice from looking at the chart (even though I did not analyze this data specifically) is that it is typically years between when a case is opened (the violation date) and when it is closed (final action date).  

One reason statutes of limitations run out in these cases is due to the lengthy amount of time that IES spends on processing cases.  IES cases, even simple ones, will usually take years to process and hundreds of hours of taxpayer funded work because of all the "busy-work" they have written into their processes (most of which is repetitive and adds very little value to the case, asides from the  fact that 99% of these cases will never see a courtroom so this work is never actually used). 

An AWA/HPA case typically begins with an AC inspector finds a violation and writes it up in an Inspection Report.  Depending on how many violations there are and the frequency of that particular person's violations, a case will be opened against the alleged violator and that gets sent to IES.  At that point, the AC inspectors have already documented the violation and take pictures or videos to substantiate the violation.   IES contributes the following: First, IES will send out their own IES investigators to interview every single party in any way involved in the case (including the violator and the AC Inspectors).  The IES investigator conducts numerous interviews and then has all parties sign affidavits.  Usually this is the part of the investigation that takes the most time. However, on a practical level, almost none of these affidavits ever end up being used and they serve little to no purpose.  As we've seen above, more than 99% of these cases never make it into a courtroom.  Even if they did go to court, there's very little added value in having an affidavit from an AC inspector, when that AC inspector would testify at the trial anyway (and they would not take a case to trial without an AC inspector willing to give live testimony).  It makes more sense to have an affidavit with regard to the violator, but how useful is to routinely make that much of an effort in every case from the get-go when 99% of them will never see a courtroom?  

Having litigated myself, I could tell you that the first step in any case should be the settlement offer, and then, after that is rejected, you start building your case. That way, you don't spend a lot of time building a case that could settle very easily based on the preliminary evidence. IES does things backwards. They waste substantial time and resources on building their cases and it isn't until years into "investigating" a case that they pursue a settlement. I asked Bernadette Juarez about this when I detailed at IES, and she replied that APHIS can't ask for a settlement unless the case is ready to go to court.  That is an idiotic statement/belief! The purpose of a settlement is to avoid court preparation.  No defendant has a right to have a case be litigation-ready prior to a settlement offer.  

After the "investigation-stage" is over (which really just is an IES investigator "certifying" what the AC inspector has already done), then IES writes a Report of Investigation (ROI).  The ROI is basically a summary of all the AC inspection reports and all the affidavits.  The ROI is usually very long (not merely a quick snapshot of the case that might actually be useful to a USDA OGC attorney) and is written in long paragraph format.  The ROI  also take a lot of time to write up and yields no benefits (the only useful part of the ROI is the table of contents of the actual evidence and that is a very small part of the ROI).  If the case ever makes to to a USDA OGC attorney (which is less than a 5% chance), then the USDA OGC attorney will typically, upon receiving the case, immediately throw the ROI in the trash.  The reason that they do that is because no decent attorney would rely on a non-attorney's summary of the primary evidence.  It is not admissible in court and the legal conclusions written by non-attorneys would not and should not be relied upon by an attorney (especially given the lack of knowledge of the law typical in IES). Any good attorney would review the primary evidence him/herself to come to their own legal conclusions before filing a complaint.  So, to sum up, the entire process of IES takes years to do, costs a lot of money and adds no value to any enforcement.  In fact, IES' role removes value as they take a few years to process cases during which the Statute of Limitations may run out and, by the time it gets to court, if ever, the violations appear less egregious because of the lag in time from violation to prosecution. A judge is not going to care as much that a person failed to properly clean out animal enclosures (a common violation) when the evidence is three years old and the defendant will claim that they have already learned their lesson and cleaned up their act.

The purpose of this post was not just to point out how terrible Juarez is for animals and how she has been rewarded for her incompetence.  Rather this is just one instance of things that happen ever day in the Federal Executive.  Juarez is the rule, not the exception.  In future posts I will speak more about why this system is in place (where the higher up you go, the more inept the person in the position usually is) and the factors that contribute to the federal executive being run by completely useless people who work against their Agency's mission rather than for it.