Escobar v. US Dept of Agri ( 2004 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60081
Summary Calendar
FRANCISCO ESCOBAR, JR.,
Petitioner,
versus
UNITED STATES DEPARTMENT
OF AGRICULTURE,
Respondent.
Petition for Review of the Decision of the
United States Department of Agriculture
(93-68)
August 23, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Returning to Nogales, Arizona from a fishing trip in Mexico,
Francisco Escobar, Jr., was stopped by agents of the U.S. Customs
Service and APHIS PPQ officers. The officers asked him whether he
was bringing any agricultural products back from Mexico. Escobar
answered that he had some filets of fish and some wooden statues,
but nothing more. Subsequently, the agents searched the motor home
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
he was driving and found some potatoes and chorizo that Escobar had
purchased in the United States before going on his fishing trip.
The agents offered Escobar the opportunity to pay an on-the-spot
fine of $25 to $50 for bringing banned food products over the
border from Mexico. Escobar refused.
The Acting Administrator of the Animal and Plant Health
Inspection Service subsequently filed a complaint against him
seeking a $2,000 civil penalty and alleging violations of four
federal regulations -- 7 C.F.R. § 321.3(b),1 7 C.F.R. § 321.3(c),2
7 C.F.R. § 321.7,3 and 9 C.F.R. § 94.9(b).4 After a hearing, an ALJ
found that Escobar had indeed brought the potatoes and chorizo into
the United States without declaring them, but that the potatoes and
chorizo were of United States origin. She found that Escobar had
violated only one of the four cited regulations, and ordered a $250
civil penalty. Both APHIS and Escobar appealed to the Judicial
Officer. The JO determined that Escobar had violated all four
regulations, and ordered a $2,000 civil penalty. Escobar now
appeals. We affirm.
1
7 C.F.R. § 321.3(b) forbids "entry" of potatoes without "an
original certificate."
2
7 C.F.R. § 321.3(c) provides that potatoes may not be
"admitted" without a permit designating the port of entry.
3
7 C.F.R. § 321.7 requires notification of the Secretary
upon the "arrival" of the potatoes.
4
9 C.F.R. § 94.9(b) forbids "import[ing]" into the United
States any pork or pork products from a country where hog cholera
is known to exist unless certain specified requirements are met.
2
Escobar's principal argument is that he did not violate the
regulations. He argues that the regulations were promulgated to
control the importation of foreign products, not the return of
American products such as his over the border from Mexico. This
interpretation of the regulations, he argues, is the only one that
makes sense, and it is supported by the ALJ's finding that one of
the government's expert witnesses stated that the regulations would
not be violated if the potatoes and chorizo came from the United
States. (The witness, the assistant officer-in-charge in El Paso,
conceded that he was not an expert on legal questions.)
However, the plain language of the regulations is against
Escobar. Although he may well be correct that the regulations were
drafted in order to prevent the importation of foreign agricultural
products, nothing in the clear language of the regulations limits
them to that function. The potato quarantine regulation imposes a
broad ban on the "admi[ssion]" or "entry" of potatoes over the
border from Mexico without proper documentation and notification.
7 C.F.R. §§ 321.3(a)-(c), 321.7(a). The broad ban grants some
limited exceptions, for example, for the importation of potatoes
from Bermuda, or from parts of Canada. 7 C.F.R. §§ 321.8, 321.9.
There is no exception in the regulations for potatoes grown in the
United States. Similarly, the regulatory ban against importing
pork or pork products into the United States provides for no
applicable exception for chorizo that originates in the United
States. 9 C.F.R. § 94.9(a)-(c). In short, we cannot accept
Escobar's invitation to search for the intent of regulations'
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drafters where the regulations are as clear and unambiguous as they
are here.
To counter the text of the three potato regulations, Escobar
relies upon the title of the potato regulations: "Subpart --
Foreign Potatoes." 7 C.F.R. § 321.1 (heading). Headings can be
useful interpretative guides when the text of a regulation is
ambiguous, but here the regulations are clear. "[T]he title of a
statute and the heading of a section cannot limit the plain meaning
of the text." Brotherhood of R.R. Trainmen v. Baltimore & O.R.R.,
331 U.S. 519, 528-29 (1947). Escobar also protests that he could
not have complied with the regulations' commands to obtain a
certificate of inspection or a permit, because those are available
only to importers of foreign products. We agree, but this does not
mean Escobar could not have complied with the regulations. Since
the regulations prohibited the entry of his potatoes and chorizo
without proper documentation, and since he could not obtain that
documentation, the regulations in effect banned his potatoes and
chorizo from being brought across the border and required him to
simply dispose of them at the border.
The Department of Agriculture's interpretation of its own
regulations is entitled to great deference if it is not
unconstitutional or in conflict with a federal statute. See
Chevron U.S.A. v. Natural Res. Def. Counsel, 467 U.S. 837 (1984).
Without such a strict construction of its regulations, the
Department of Agriculture would have difficulty preventing the
spread of hog cholera or potato pests, because once American
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potatoes or chorizo enter countries like Mexico, it is impossible
to tell whether those American products have become contaminated,
commingled with, or exchanged for other potatoes or pork products,
either intentionally or not. Accordingly, we defer to the
Department of Agriculture's reading of its own regulations.
Escobar also raises four other arguments. First, he argues
that the JO found him guilty of all the violations charged because
he failed to declare his potatoes and sausage. Escobar
mischaracterizes the JO's decision. The JO found that Escobar
violated the regulations by bringing the potatoes and chorizo into
the Unites States, whether or not Escobar declared them. The JO
simply noted that had Escobar declared them, that might have been
a mitigating circumstance in Escobar's favor.
Second, Escobar argues that he was not properly notified of
the government's intent to prosecute him for violating the potato
regulations. The citation he received at the border stated that he
had violated 7 C.F.R. § 319.56. Because he was not found in
violation of this section, but was instead found in violation of
other, related potato regulations, he argues that he was never
given sufficient notice.
We find the notice in this case sufficient. The regulation
that the agents cited at the border is the opening regulation in
the section regulating the quarantine on fruits and vegetables,
including potatoes. Although not exact, the citation was
sufficient to ensure that Escobar could reasonably understand the
nature of the charges. See Aloha Airlines, Inc. v. Civil
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Aeronautics Bd., 598 F.2d 250, 262 (D.C. Cir. 1979) ("Pleadings in
administrative proceedings are not judged by the standards applied
to the indictment at common law.") (citing 2 K. Davis,
Administrative Law Treatise § 8.04 at 525 (1958)). In any event,
the formal complaint issued after the border stop informed Escobar
of the exact regulations at issue.
Third, Escobar challenges the size of the sanction. The JO
improperly based the $2,000 penalty assessment on the damage that
Escobar's potatoes and chorizo could have caused, Escobar argues.
Because Escobar was able to prove to the ALJ that his American
potatoes and chorizo could not have caused any damage and that they
did not in fact commingle with any Mexican food products, Escobar
argues that the $2,000 penalty assessed against him is unwarranted.
However, the JO's point was not that the potatoes and chorizo
actually caused any damage. The Department of Agriculture concedes
that they were harmless. Rather, the point is that the border
agents could not have known at the time of the border stop whether
Escobar's food was harmless or infested. Even if the border agents
had known that the potatoes and chorizo were of American origin,
they could not have known at the border whether Escobar had
commingled his food with Mexican food products, contaminated his
food, or exchanged his food for Mexican food products,
intentionally or not. A single piece of infested pork or a single
infested potato can start an infestation in America, imposing on
this country the extremely high costs of controlling and
eradicating the spread of the disease.
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The acts that the regulations at issue administer authorize a
$1,000 maximum civil penalty for each violation. 7 U.S.C. § 163;
21 U.S.C. § 122. In this case, the Secretary assessed Escobar a
$500 civil penalty for each of the violated regulations, only one
half of the maximum statutory penalty. "[W]here Congress has
entrusted an administrative agency with the responsibility of
selecting the means of achieving the statutory policy the relation
of the remedy to policy is peculiarly a matter for administrative
competence." Butz v. Glover Livestock Comm'n Co., 411 U.S. 182,
185 (1973) (internal quotations omitted). Because the sanction was
neither unwarranted in law nor without factual justification, we
defer to the Department of Agriculture's appropriate assessment of
the sanction.
Finally, Escobar challenges the regulations as void for
vagueness. If even the government's own expert witness could, on
the stand, erroneously interpret the regulations so as not to cover
Escobar's conduct, the regulations are fatally vague, he argues.
Yet we find the regulations clear, and the expert witness's
and Escobar's interpretations clearly wrong. Although the
regulations never explicitly state that they apply to American
products returning from Mexico, they do impose a clear uniform
prohibition on the entry or admission of potatoes and chorizo from
Mexico without proper documentation and notification. They state
no applicable exceptions. Regulations, like statutes, "are not
automatically invalidated as vague simply because difficulty is
found in determining whether certain marginal offenses fall within
7
their language." United States v. National Dairy Products Corp.,
372 U.S. 29, 32 (1963).
Accordingly, we AFFIRM.
8