The Honorable Thomas W. Phillips, United States District Judge for the Eastern District of Tennessee,

*

sitting by designation.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 06a0917n.06

Filed: December 20, 2006

Case No. 05-4543

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TIM GRAY,

Petitioner,

v.

UNITED STATES DEPARTMENT

OF AGRICULTURE,

Respondent.

_______________________________________

)

)

)

)

)

)

)

)

)

)

)

)

)

ON APPEAL FROM THE

UNITED STATES

DEPARTMENT OF

AGRICULTURE

BEFORE: BATCHELDER and GRIFFIN, Circuit Judges; PHILLIPS , District Judge. *

ALICE M. BATCHELDER, Circuit Judge. Petitioner Tim Gray (“Gray”) appeals the

United States Department of Agriculture’s (“USDA”) decision finding him in violation of the Horse

Protection Act (“HPA”), 15 U.S.C. § 1821 et seq. On appeal Gray argues that the Administrative

Law Judge (“ALJ”) committed procedural errors rendering the USDA’s judgment “null and void.”

Because Gray’s arguments are without merit, we affirm the decision of the USDA.

I. Background

In 2001, the Administrator (“Administrator”) of the Animal and Plant Health Inspection

Service (“APHIS”), an agency of the USDA, filed a complaint against Gray, Sand Creek Farm, Inc.
2

(“Sand Creek”), William B. Johnson, and Sandra Johnson, alleging that they violated the HPA, 15

U.S.C. § 1824(2), by entering a horse in a show or exhibition while that horse was “sore.” The case

was assigned to ALJ Jill S. Clifton, and a hearing was set for March 2004. One week before the

hearing, the respondents moved for a continuance because Gray had suffered injuries that prevented

him from attending the hearing. The Administrator opposed the continuance, or in the alternative,

moved to sever Gray from the proceedings. The ALJ decided to sever Gray so that the proceedings

could continue against the Johnsons. Moreover, because Sand Creek could not obtain a fair hearing

without Gray’s participation, the ALJ also severed Sand Creek from the original action, and

consolidated Sand Creek and Gray in a separate proceeding.

The hearing against Gray and Sand Creek was set for Monday, March 7, 2005. However on

Thursday, March 3, the Administrator filed a motion to summarily resolve the matter against Sand

Creek. After a series of teleconferences on Friday, March 4, the ALJ excused Sand Creek from the

March 7 hearing in order to provide Sand Creek with additional time to respond to the

Administrator’s March 3 motion. Nevertheless, in an effort to continue in an “orderly” and

“efficient” fashion, the ALJ announced that she would proceed with the March 7 hearing against

Gray. The ALJ entered an order severing the parties and assigning separate docket numbers to the

recently divided proceedings.

Up to this point, Gray had been proceeding pro se and candidly admitted that he was “riding

the coattails” of, and utterly depending on, Sand Creek for legal assistance. Because the proceedings

were severed on Friday and the hearing was set for Monday, Gray was unable to find counsel on such

short notice. At the beginning of the hearing, however, the ALJ noted that she “would hear [Gray]

out” if he requested a continuance to obtain counsel. Despite Gray’s complaints that he did not know
3

what to do or how to act at the hearing, he did not request a continuance.

At the close of evidence, the ALJ issued an oral decision, concluding that Gray had violated

the HPA, 15 U.S.C. § 1824(2)(b), by entering a horse in a show or exhibition while that horse was

sore. The ALJ then ordered Gray to pay a civil penalty of $2,200 and disqualified him from

participating in any horse shows or exhibitions for a two-year period. Finally, the ALJ scrupulously

outlined Gray’s rights of appeal to the Judicial Officer (“JO”) and provided him with a copy of the

relevant appellate rules.

Following the ALJ’s decision, Gray obtained numerous continuances of his administrative

appeal deadline. Despite these continuances, however, Gray filed his appeal beyond the allotted time

period. As a result of this untimely filing, the JO denied his claim. The JO also rejected Gray’s

argument that his proceeding was not final because the ALJ had no authority to sever it. Gray filed

a petition for reconsideration with the JO, which was denied, and he then filed a timely notice of

appeal with this Court.

II. Analysis

On appeal Gray argues that the ALJ did not have “power” to issue a decision against him.

More specifically, he contends that the ALJ’s decision was “null and void” because she lacked

authority to sever proceedings under the Rules of Practice Governing Formal Adjudicatory

Proceedings Instituted by the Secretary under Various Statutes (“Rules of Practice”). We reject the

premise of Gray’s argument -- that an ALJ lacks authority to sever proceedings -- and find his

position unpersuasive.

While the Rules of Practice do not explicitly authorize severance of proceedings, we find that

the severance orders in Gray’s proceedings were supported by other provisions in the Rules of
Gray does not allege -- and indeed the record does not indicate -- that he objected to the ALJ’s decision to 1

sever the proceedings.

4

Practice. The Rules of Practice expressly authorize an ALJ to hold conferences to “expedite” the

proceedings, see 7 C.F.R. § 1.140(a)(1), and to consider “matters as may expedite and aid in the

disposition of the proceeding,” see 7 C.F.R. § 1.140(a)(3)(ix). In our case, the ALJ granted the first

severance request because Gray was injured and unable to attend the hearing. The ALJ thereafter

ordered the second severance to provide Sand Creek with additional time to respond to a motion, and

the ALJ, in an effort to proceed in an “orderly” and “efficient” fashion, saw no reason to delay

Gray’s hearing. In both instances, the ALJ was acting to expedite the timely disposition of the

proceedings, as she was authorized to do under the Rules of Practice. We therefore conclude that 1

even though the Rules of Practice do not expressly authorize an AJL to sever proceedings, the

severance orders in Gray’s case were implicitly permitted under other provisions of the Rules of

Practice. Moreover, it is well-settled that “[a]dministrative agencies enjoy ‘broad discretion’ to

manage their own dockets,” see Florida Mun. Power Agency v. Fed. Energy Regulatory Comm’n,

315 F.3d 362, 366 (D.C. Cir. 2003), and as expressed above, the ALJ did not abuse her “broad

discretion” in issuing the severance orders in this case.

Gray’s arguments imply that the ALJ’s second severance prejudiced him by affording

inadequate time to obtain counsel. We find that any prejudice Gray experienced was caused by his

admitted choice to depend on Sand Creek for legal assistance. Moreover, at the beginning of the

hearing, the ALJ indicated that she would seriously entertain a request for a continuance; however,

Gray did not request one. In light of these facts, we determine that Gray was not unfairly prejudiced

by the ALJ’s decision to sever his proceedings.
5

Finally, Gray contends -- without citing any legal authority -- that even if the ALJ did not err

in severing his proceedings, she lacked authority to issue her decision because she was not formally

“appointed as judge” over the newly severed proceedings. It is clear that ALJ Clifton was assigned

to the original proceedings involving Gray, and we therefore find that she acted within her discretion

in continuing to preside over Gray’s post-severance proceedings.

III. Conclusion

For the foregoing reasons, we conclude that the ALJ did not err in severing Gray’s

proceedings, nor did she err in presiding over the post-severance proceedings. Consequently, we

deny Gray’s appeal and affirm the USDA’s decision finding Gray in violation of the HPA.