Petition for Writ of Certiorari — Benigni v. Maas

Supreme Court brief1994

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Text

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

KENNETH S. BENIGNI,

PETITIONER,

vs.

DONALD W. MAAS, JOHN F. KIRCHBERG,

DENNIS MUNSON, AND P.M. EPPELE,

RESPONDENTS ,

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

KENNETH S. BENIGNI

PETITIONER PRO SE

7485 Kauppi Lake Road

Cotton, Minnesota 55724

Tel: (None)

QUESTIONS PRESENTED

1. Can a governmental agency, in this

case the United States Department of

Agriculture, deny an applicant the specific

license he needed and applied for, return

his submitted license fees; then issue him

an unrequired, unwanted, unapplied for,

unpaid for, and rejected license; for which

he was not even legally eligible, qualified,

or required to have under the Animal Welfare

Act; and then subject him to the sanctions

of that legally impossible to exist license,

especially under the due process clause of

Amendment Five of the United States

Constitution?

2. Even if the person were licensed,

in this case under the AWA, in the absence

of exigent circumstances, can government

agents, without warrant or consent, during

the absence of the owner/licensee and all of

his representatives, if any, and without his

or their knowledge, conduct administrative

inspections/searches of his premises, i.e.

in secret, under Amendment Four of the

United States Constitution? (in this case,

also in violation of their agency’s own

rules and regulations, and beyond the scope

and authority of the AWA, and on four

separate occasions)

3. Inasmuch as under the provisions of

9 CFR Ch. 1 Section 2.5 (a)(2), the licensee

could voluntarily terminate his license at

the onset of the administrative search and

thus prevent its occurrence, were he present

to do so, does his absence, precluding his

opportunity to voluntarily terminate his

license to prevent the search deny him his

right to due process under the Fifth

Amendment of the United States Constitution?

4. Does the mere licensing of a person

under the Animal Welfare Act, subject all of

ities me ml

that person’s property, including areas

devoid of any animals and having no

relationship whatsoever to the AWA, to

searches by USDA agents; or are the searches

limited in scope to animals and facilities

specifically covered by the authority of the

Act under Amendment Four of the United

States Constitution?

5. When the evidence shows that the

government agents, without warrant or

consent, searched a person’s premises for

four days, while neither he nor anyone else

Was present or had any knowledge of the

searches; falsified official documents in

violation of criminal statute (Title 18

U.S.C. Section 1001.), fabricated evidence,

urinated near that person’s water well, and

took affirmative steps to maliciously

prosecute that person based on the material

falsified documents, proven incontrovertibly

to be false, and were motivated in large

iii

part by a desire and intent to retaliate

against Petitioner for his exercise of his

freedom of speech to criticize illegal,

dangerous, or improper acts of government

agents, has (A) the United Attorney abused

his authority or discretion by certifying

that the agents’ acts were within the scope

of their employment? (B) have the courts

below abused their discretion by accepting

the United States Attorney’s certification

that the agents were acting within the scope

of their employment?

LIST OF ALL PARTIES TO THIS

PROCEEDING IN THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

I certify that the following comprise

all interested parties known to Petitioner:

Kenneth S. Benigni - Petitioner

Donald W. Maas,

John F. Kirchberg,

Dennis Munson,

P. M. Eppele - Respondents. ee

United States of America Cou

Cite

Va S. Benigni

Petitioner, pro se

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ........ i

LIST OF INTERESTED PARTIES .......... ah

TABLE OF CONTENTS .......... eccces secee Vi

IMDEX TO APPEMDIXN ..cccccccccsecs cocoee Wil

TABLE OF AUTHORITIES ....... cecccccecce Wil

OPINIONS BELOW eoeeeeeeveeeveeeeeeeeeeeneeeee 2

FORTE Kv eccessawst hksees obbised 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ccoccccccccccccccece 3

STATEMENT OF THE CASE ...ceseceeeeceee 20

REASONS FOR GRANTING WRIT ........... 4&4

SEARCHES WITHOUT PRESENCE,

KNOWLEDGE, CONSENT, OR WARRANT , 45

THE IMPOSSIBILITY OF LICENSURE . 57

Voluntary Licensure ....... 65

Automatic Termination ,..... 66

Written Notice Not Required 69

Letter Taken Out of Context 70

SCOPE OF EMPLOYMENT .......ee00+ 73

CONCLUSION eeeeeeeeeee eee eeeeeneeeee ee 77

INDEX TO APPENDIX ~

Opinion of the Court of Appeals for

the Eighth Circuit eeeeeeveeeeeeeeeaeeneene la

Order of the United States District

Court, District of Minnesota, Third

Division eeeeeeeeeeveeeeeeneeeeeeeeeee isa

Report and Recommendation of the Magis-

trate, adopted by the United States

District Court, District of Minnesota,

Third Division ...ccccccccccccccccccg 188

Order Denying Motion to Vacate or

Amend *eeneeeneeeeeneeneeeneeneeneee e*eeeoeeneeee 73a

United States Court of Appeals for

the Eighth Circuit Order Denying

Petition for Rehearing and Suggestion

for Rehearing En Banc (January 21,

1994) @eeeereeeeeeeeeeeeeeeeeeee ee eee 75a

TABLE OF AUTHORITIES

CASES

774 F.2d 1193 (1985) @eeeeeeeeee eee eee 70

Bivens v. Six Unknown Named

Agents of Federal Bureau of

Narcotics 403 U.S. 388 (1971) .... 34,57

387 U.S. 323 (1967) ..cccscccceccccee &F

Donovan vy. Dewey 452 U.S. 594 eeeeeee 47

vii

(continued)

CASES

(cont. )

Marshall v. Barlow’s, Inc. (1981)

436 U.S. 307 (1978) eeeenveaeeeeeeeee e280 47

2 U.S. 91 19 7) @eeeneveveeee eee 48

United States v. Bisswell

See Wale SEO CEUTE? co... ccccccces OF

Vv 153 F.Supp.

yee Taeere Bee Peal BB9: aaccccccceocesn OF

STATES

First Amendment ......... scocccce got?

coccce 4,38, 46,48, 56,74

Fifth Amendment ,.., 4,38,39,46,56,74, 76

Fourth Amendment

PUBLIC LAWS

P.L. 91-579 ®eerereeevevesr eee ee 2080808 13,51

P.L. 94-279 @eeeeeeveeneeeee ee eee eecee 5,57

viii

TABLE OF AUTHORITIES

continued

STATUTES

5 U.S.C. Sec. 558 cescccccee 18,4%1,69,70

98 UcB.C. BOC 1001 coccccccoccsesce 15,79

18 U.S.C. Sec. 1623 ...seeeseee ha cate <a

28 U.S.C. Sec. 2679 .e-uees sce 20a

7 U.S.C. S@C. 2146 ...ceee scp tne etal

7 U.S.C. SeC. 2132 cecccceeces pence... Soa"

REGULATIONS

9 CFR Sec. 1-1 ,....- ssccccee 6,596,58,68

9 CFR SEC. 2-1 wessecceeereceees eon,

9 CFR SEC. 2-2 seccersceeoreree® cco 9,66

9 CFR Sec. 2-5 .----+ 10,26,27,56 , 66,67

9 CFR Sec.2.126 eecvoeceeeeeee ee? 11,50,51

9 CFR S€C.2.128 wuscereerrrrere” sen “22,50

7 CFR Subtitle A, Sec. 0.735-11 --- 14,75

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

Kenneth S. Benigni,

Petitioner,

vs.

Donald W. Maas, John G. Kirchberg,

Dennis Munson, and P.M. Eppele,

Respondents,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

To the Honorable Chief Justice and Associate

Justices of the Supreme Court of the United

States.

Kenneth S. Benigni, the petitioner

herein, prays that a writ of certiorari

issue to review the judgment of the United

States Court of Appeals for the Eight

Circuit entered in the above-entitled case

on December 8, 1993.

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Eight Circuit is

unreported. (Appendix at page 2a) The

Judgment of the United States District

Court, District of Minnesota, Third

Division, unreported, appears in the

Appendix, at page i4a. The Report and

Recommendation of the Magistrate, adopted by

the United States District Court, District

of Minnesota, Third Division, unreported,

appears in the Appendix at page 17a. The

Order of the United States District Court,

District of Minnesota, Third Division

denying motion to vacate or amend the

Court’s Order of February 22, 1993 appears

in the Appendix at page 66a. The Order

Denying Petition for Rehearing and

Suggestion for Rehearing En Banc of the

United States Court of Appeals for the

Eighth Circuit Appears in the Appendix at

page 68a.

JURISDICTION

The Opinion of the United States Court

of Appeals for the Eighth Circuit (Appendix

at page 2a) was filed on December 8, 1993.

A timely Petition. for Rehearing was filed

on December 21, 1993. The Court of Appeals’

denial of the Petition for Rehearing and

Suggestion for Rehearing En Banc was issued

on January 21, 1994 and appears in the

Appendix at page 68a. This cCourt’s

jurisdiction is invoked under Title 28,

U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES, AND

REGULATIONS INVOLVED

AMENDMENT I TO THE UNITED STATES

CONSTITUTION

Congress shall make no law respecting

an establishment of religion, or prohibiting

the free exercise thereof; or abridging the

freedom of speech, or of the press; or the

right of the people peaceably to assemble,

and to petition the Government for a redress

of grievances.

AMENDMENT IV TO THE UNITED STATES

CONSTITUTION

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by

Oath or affirmation, and particularly

describing the place to be searched, and the

persons or things to be seized.

AMENDMENT V TO THE UNITED STATES

CONSTITUTION

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of a

Grand Jury, except in cases arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be

subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a

witness against himself, nor be deprived of

life, liberty, or property, without due

process of law; nor shall private property

be taken for public use, without just

compensation.

-27 : :

Sect; 3. (f). or Title 7 U.S.C. Secti

2132 Definiti :

(f) The term "dealer" means any person who,

in commerce, for compensation or profit,

delivers for transportation, or transports,

except as a carrier, buys, or sells, or

negotiates the purchase or sale of,(1) any

dog or other animal whether alive or dead

for research, teaching, exhibition, or use

as 2 pet, or (2) any dog for hunting,

security, or breeding purposes, except that

this term does not include —

(ii) any person who does not sell, or

negotiate the purchase or sale of any wild

animal, dog or cat, and who derives no more

than $500 gross income from the sale of

other animals during any calendar year;

9 CFR Ch. 1 Section 1.1 Definitions (1-1-86

Edition:

(t) "Dealer" means any person who, in

commerce, for compensation or profit,

delivers, for transportation, or buys, or

sells, or negotiates the purchase or sale

of, (1) any dog or other animal whether

alive of(sic)dead for researeh, teaching,

exhibition, or use as a pet, or (2) any dog

for hunting, security, or breeding purposes,

except that this term does not include:

(ii) Any person who does not sell or

negotiate the purchase or sale of any wild

animal, dog, or cat, and who derives no more

than $500 gross income from the sale of

other animals during any calendar year.

(w) "Exhibitor" means any person (public or

private) exhibiting any animals, which were

purchased in commerce or the intended

distribution of which affects commerce, or

will affect commerce, to the public for

compensation....

9 CFR Ch. 1 Section 2.1 Application (1-1-86

Editi

(a) Any person operating or desiring to

operate as a dealer, exhibitor, or operator

of an auction sale (where any dogs or cats

are sold affecting commerce), except persons

who are exempted from the liceiusing

requirements under section 3 of the Act,

shall apply for a license on a form which

will be furnished, upon request, by the

Veterinarian in Charge of the State in which

such person operates or intends to operate.

If such person operates in more than one

State, he shall apply to the State in which

he has his principal place of business. The

completed application form shall be filed

with such Veterinarian in Charge.

(b) Any person who is not a dealer or

exhibitor, but who desires to obtain a

license, shall follow the requirements for

dealers and exhibitors set forth in

paragraph (a) of this section and in

sections 2.2 and 2.3, and shall agree in

writing, on a form furnished by Veterinary

Services, to comply with all the requiremen-

ts af the Act and the provisions of this

subchapter. A license will be issued to any

such applicant when the requirements of

section 2.2 and 2.3 have been met, and when

the applicant has submitted to the

Veterinarian in Charge a fee of $5 by

certified check, cashier’s check, personal

check, or money order. In addition to the

fee required to be paid upon application for

a license,such licensee shall submit to the

Veterinarian in Charge a fee of $5, by

certified check, cashier’s check, personal

check, or money order, on or before each

anniversary date of his license. The

failure of any such person to comply with

any provision of the Act, or any of the

provisions of the regulations or standards

of this subchapter, shall constitute grounds

for automatic termination of such license or

for its suspension or revocation by the

Secretary.

9 CFR Ch. 1 Section 2.2 Acknowledgement of

standards. (1-1-86 Edition)

A copy of the applicable standards will be

supplied to the applicant with each request

for an application for license, and the

applicant shall acknowledge receipt of such

NO itt SA OE wo OD ret wee .

standards and agree to comply with them by

signing the application form provided for

such purpose by Veterinary Services.

9 CFR Ch. 1 Section 2.5 Duration of license.

(1-1-85 Edition)

(a) A license issued under this part shall

be valid and effective unless:

(1) Said license has’ been revoked or

suspended pursuant to section 19 of the Act.

(2) Said license is voluntarily terminated

upon the request of the licensee in writing

to the Veterinarian in Charge.

(b) Failure by a licensee to pay the annual

license fee as required by sections 2.1 and

2.6 or to file the annual report as required

by section 2.7 on or before the anniversary

date of his license shall result in

automatic termination of the license:

Provided, however, that prior to such

termination the licensee shall be given

notice and opportunity to comply with the

annual license fee and reporting

requirements. Failure to comply with the

annual license fee and reporting

requirements within 60 days from receipt of

such notice shall result in automatic

termination of license.

paragraph (a) of this section shall be

surrendered to the Veterinarian in Charge in

the State where the license was issued.

2 CFR Ch. 1 Section 2.126 Access and

inspection of records and property. (1-1-86

Edition)

Each dealer, exhibitor, operator of an

auction sale, or research facility, shall,

during ordinary business hours, permit

Veterinary Services representatives, or

other Federal officers or employees

designated by the Secretary, to enter his

place of business to examine records

required to be kept by the Act and the

regulations in this part, and to make copies

of such reports, and permit Veterinary

Services representatives to enter his place

of business, to inspect such facilities,

property and animals as such representatives

consider necessary to enforce the provisions

of the Act, the regulations and the

standards in this subchapter....

issi imal (1-1-86 Edition)

(a) Each dealer, exhibitor, operator of an

auction sale and research facility shall,

upon request, during ordinary business

hours, permit, under the following

conditions, police or law officers of

legally constituted law enforcement agencies

with general law enforcement authority (not

those agencies whose duties are limited to

enforcement of local animal regulations) to

enter the place of business of such dealer,

exhibitor, operator of an auction sale or

research facility to inspect animals and

records for the purpose of seeking animals

that are missing:

(2) The police or law officer shall abide by

all security measures required by the

dealer, exhibitor, operator of an auction

sale or research facility to prevent the

spread of disease, including the use of

sterile clothing, footwear, and masks where

required, or to prevent the escape of an

animal.

"Sec. 16 (a) The Secretary shall make such

investigations or inspections as he deems

necessary to determine whether any dealer,

exhibitor, research facility, or operator of

an auction sale subject to section 12 of

this Act, has violated or is violating any

provision of this Act or any regulation or

standard issued thereunder, and for such

purposes, the Secretary shall, at all

reasonable times, have access to the places

of business and the facilities, animals, and

those records required to be kept pursuant

to section 10 of any dealer, exhibitor,

intermediate handler, carrier, research

facility, or operator of an auction sale....

Investigations and inspections. (same as

P.L. 91-579 above except that last two lines

read: "section 2140 of this title of any

such dealer, exhibitor, intermediate

handler, carrier, research facility, or

operator of an auction sale.) (in effect in

1986)

7 CFR Subtitle A (1-1-92 Edition) Subpart

B —~— Conduct and Responsibilities of

Employees

Section 0.735-11 Prohibited conduct —

general. (as amended 4/20/81)

(a) An employee shall avoid any action,

whether or not specific-prohibited by this

subpart, which might result or create the

appearance of:

(2) Giving preferential treatment to any

person;

(3) Impeding Government efficiency or

economy;

(5) Making a Government decision outside of

official channels; or

(6) Affecting adversely the confidence of

the public in the integrity of the

Government.

(b) Employees are specifically prohibited

from:

(1) Engaging in criminal, infamous,

dishonest or notoriously disgraceful

conduct, or other conduct prejudicial to the

Government.

Title 18 U.S.C. Section 1001. Statements or

~ entries generally

Whoever, in any matter within the

jurisdiction of any department or agency of

the United States knowingly and willfully

falsifies, conceals or covers up by any

trick, scheme, or device a material fact, or

makes any false, fictitious or fraudulent

statements or representations, OF makes. or

uses any false writing or document knowing

the same to contain any false, fictitious or

fraudulent statement or entry, shall be

fined not more than $10,000 or imprisoned

not more than five years, or both.

Title 18 U.S.C. Section 1623, False

tions ju

(a) Whoever under oath (or in any

declaration, certificate, verification, or

statement under penalty of perjury as

permitted under section 1746 of title 28,

United states Code) in any proceeding before

or ancillary to any court or grand jury of

the United States knowingly makes any false

material declaration or makes or uses any

other information, including any book,

paper, document, record, recording, or other

material, knowing the same to contain any

false material declaration, shall be fined

not more than $10,000 or imprisoned not more

than five years, or both.

Title 28 U.S.C. Sect: 2679, Exclusi

of remedy (FTCA), (b)(1) The remedy against

the United States provided by sections

1346(b) and 2672 of this title for injury or

loss of property, or personal injury or

death arising or resulting from the

negligent or wrongful act or omission of any

employee of the Government while acting

within the scope of his office of employment

is exclusive of any other civil action or

proceeding for money damages by reason of

the same subject matter against the employee

whose act or omission gave rise to the claim

i lig ep ac) wns tl cea

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ween

or against the estate of such employee. Any

other civil action or proceeding for money

damages arising out of or relating to the

same subject matter against the employee of

the employee’s estate is precluded without

regard to when the act or omission occurred.

(2) Paragraph (1) does not extend or apply

to a civil action against an employee of the

Government —

(A) which is brought for a violation of the

Constitution of the United States, Or....-

(a) This section applies, according to the

provisions thereof, to the exercise of a

power of authority.

(b) A sanction may not be imposed or

substantive rule or order issued except

within jurisdiction delegated to the agency

and as authorized by law.

required by law, the agency, with due regard

for the rights and privileges of all the

interested parties or adversely affected

persons and within a reasonable time, shall

set and complete proceedings required to be

conducted in accordance with sections 556

and 557 of this title or other proceedings

required by law and shall make its decision.

Except in cases of willfulness or those in

which public health, interest, or safety

requires otherwise, the withdrawal,

suspension, revocation, or annulment of a

license is lawful only if, before the

institution of agency proceedings therefor,

the licensee has been given —

(1) notice by the agency in writing of the

facts or conduct which may warrant the

action; and

(2) opportunity to demonstrate or achieve

compliance with all lawful requirements.

Sener once ae

When the licensee has make timely and

sufficient application for renewal or a new

license in accordance with agency rules, a

license with reference to an activity of a

continuing nature does not expire until the

application has been finally determined by

the agency.

NT _OF

From about 1965 through 1984,

Petitioner was involved in the raising of

fur bearing animals. About 1973, he began

to raise "“alterative type" pet animals;

descented skunks, ferrets, raccoons, and

wolves, etc. for the pet trade. This

activity required a USDA "Gealer" license

under the Animal Welfare Act. Petitioner

held a USDA Class A dealer license issued to

him by the United States Department of

Agriculture, Animal and Plant Health

Inspection Service, Veterinarian Services

(USDA) from June 26, 1974 until June 25,

1979. From June 26, 1979 until June 25,

1985, Petitioner held a Class B dealer

license, which is required if the licensee

buys animals for resale to pet shops, in

addition to those animals which he raised

for himself. (essentially wholesale)

Petitioner stopped selling any animals for

pets in 1984 and was converting his

operation to that of roadside zoo for which

he was required to have a Class C

"exhibitor" license. His 1985 application

for renewal of his Class B license with re-

quest it be changed to a Class C license,

brought the reply: "Your application and

fee for continuation of your "B" dealers

license #41-B-100 from 6/26/85 through

6/25/86 has been received.", whereas all

previous replies to Petitioner’s

applications stated unequivocally: "Your

application for a "B" dealer’s license under

TOE) RR pl se BT Cin tte Anal i ea bly tah. Ctiymamilgdles

Cart I he Ate Re Le Ne RBI Abie IE Lmbe 2.

ae a ee

the Animal Welfare Act has been approved.",

or essentially the same, but always

including the words "has been approved".

The 1985 application was never "approved",

either in writing or orally. On August 13,

1985, Respondent Donald W. Maas did inspect

Petitioner’s zoo facilities for Class C

licensing purposes. During that inspection

Maas falsified the inspection report by

listing fictional violations which were

physically impossible to have been observed

from any point he had access t>. The Class

B license was never approved, denied, or

changed to a Class C license as requested.

In 1986, to avoid the ambiguity and

avoidance of specific requests for the class

of license change, Petitioner specifically

applied for a Class C (exhibitor) license

which was the only license which would meet

the legal requirements for his un-opened

zoo. Moreover, his St. Louis Co., Minnesota

Land Permit required: "that all applicable

State and Federal regulations be adhered

to." (obtained 9/17/84). Petitioner had

already acquired a zoo license from the

State of Minnesota in June of 1986. The

USDA Class C license was the last license

needed to open his zoo. Instead of

proceeding on Petitioner’s application for

a Class C license, the USDA instead renewed

his never approved 1985 Class B license

which was not legal or of any value for

Petitioner’s purposes. Petitioner rejected

the Class B license by letter on August 18,

1986. On August 20, Respondents Maas, John

F. Kirchberg (Kirchberg, and another USDA

employee, W. Scott Manning (Manning),

clutching Petitioner’s letter openly in

their hands, arrived unannounced = and

inspected Petitioner’s zoo facilities for

Class C licensing purposes. The inspection

was strictly limited to the zoo area, as

eda ts OWE

established by Petitioner’s land use permit,

and no one entered any of the 14 buildings

on the premises which were not being used

for any purpose covered by the AWA and were

physically separate from the zoo area.

After the inspection, all three agents told

Petitioner that his zoo facilities did not

meet the requirements of the AWA and that he

could not be licensed as an exhibitor and

that a Class C license would not be granted

to him and his $10 license fee was returned

to him. All three agents told Petitioner

that he must send the USDA $5 for the Class

B license (which he had not applied for, and

could not legally have or use). They also

told Petitioner that since he was not

selling any animals whatsoever, he was not

required to have a USDA license of any sort.

Their statements are confirmed in three

affidavits make under oath upon their return

to Minneapolis/St. Paul. The inspection

report was signed by Maas and Manning, given

to Petitioner who signed it, taken back by

Maas when the subject of skunks came up and

Manning or Kirchberg realized that none of

the agents had been in the skunk shed, who

then inserted Petitioner’s copy back under

the carbon copy portion of the original

report, continued to write on the report for

a couple of minutes, handed Petitioner’s

copy back to him and the agents’ then

promptly left. After putting his reading

glasses on shortly thereafter, Petitioner

saw that Maas had listed violations in the

skunk shed where the agents had never been

or even close to. In addition, the same

violations, impossible to observe because

chain link security fences and locked gates

precluded any possibility of visual

observance of the subject area regardless of

what | the conclusion would be, were again

included. Petitioner was outraged by these

er ee

ONS ED Pda ROA Ry SE went, QOL ie mcr iD pet we Rah

lies and vowed to have nothing whatsoever to

do with any USDA licenses and in fact began

to again explore the possibilities of

operating his zoo free and not be required

to be licensed by the USDA. Respondent

Eppele sent Petitioner a letter dated August

26, 1986 which officially denied his

application for the Class C license while

still attempting to saddle him with the

unapplied for Class B license. Petitioner

willfully and by design never sent the USDA

the $5 Class B license fee because he never

applied for it and could not use it.

Under the provisions of 9 CFR Section

2.5 (b), a license is automatically

terminated for non-payment of the renewal

fee; provided that (during 1986) the

licensee is given notice to comply with the

fee payment, and is given 60 days in which

to do so. Under the broadest scenario,

Petitioner was given notice to pay the $5

fee on August 20, 1986 (confirmed in their

three affidavits). Thus, the unapplied for

and unpaid for Class B license, if it even

ever existed, automatically terminated on

October 19, 1986.

On December 3, 1986, Respondents Maas,

Kirchberg, and Dennis Munson (Munson); on

December 4, 1986, Maas and Krichberg; and cn

December 5 and 10, Maas alone; conducted

warrantless, consentless searches of

Petitioner’s premises while neither he nor

any agent of his was present on the

premises, Or had any knowledge of the

searches. Since Petitioner was not present,

he was denied the right and opportunity to

voluntarily terminate his license under the

provisions of 9 CFR Section 2.5 (a)(2), if

such license even ever existed. The agents

conduct is explicitly prohibited by USDA

rules, regulations and policies. During the

search of December 10, 1986, Maas urinated

SUES toe Mtr Rall Dookie On dv ere da tees PLL

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in very close proximity to Petitioner’s

water well and only source of drinking water

on the premises. The inspection reports

resulting from these searches were replete

with fabricated and false statements which

are proven to be false by the agents’ own

photographs which show that the serious and

material critical misrepresentations made in

the inspection reports were, again,

impossible to have been observed or

otherwise verified, or were non-existent.

During the searches, the three agents

entered every building or other area on the

premises unless foiled by locked security

gates or locked doors. These buildings

involved no activity covered by the AWA and

were beyond the scope and authority of the

AWA. Maas made sketches of a sign

Petitioner had legally erected on his land

near the highway strongly urging the sheriff

to enforce the drunk and reckless driving

laws in the = area, and sketches of

Petitioner’s no trespassing signs; which had

nothing to do with the AWA, but everything

to do retaliation against him for exercising

his right of freedom of speech, and included

those sketches with his inspection reports.

On December 16, Respondent P. M. Eppele

(Eppele), the Veterinarian in Charge, and

Superior of the other Respondents, sent a

letter to "All USDA Registrants and

Licensees", stating that the USDA had

to eliminate unproductive time spent on

unsuccessful inspection attempts and

advising them that in the future "After

reasonable accommodation and documented

notice of warning, an alleged violation will

be prepared for failure to allow inspection

by any licensee whose facility is not

accessible for unannounced inspections

during ordinary business hours..." The

existence of this letter strongly implies

that: (a) other USDA agents were not

conducting inspections or searches when the

licensee was absent from his premises; (b)

they knew such conduct was prohibited by

Amendment Four; (c) Eppele was not going to

tolerate unsuccessful inspections.

On about February 1, 1987, Petitioner

first learned of the searches from the

animal caretaker, Stanley Miller, when

Petitioner called him from Ohio. Miller

told Petitioner about the urination near the

well at that time, and has signed a

notarized statement to that effect since

then. On February 3, 1986, Petitioner sent

Eppele a letter of outrage concerning the

illegal searches and the falsified documents

of August 13, 1985 and August 20, 1986.

Petitioner clearly stated in that letter:

"It should have been crystal clear to you

that I had severed all connections with your

agency when I did not send you the five

dollars license fee after you returned my

overpayment money order of ten dollars which

you had held for months instead of

depositing it as a reputable federai agency

would have done. Since you did not have

enough sense to realize that, this then is

a formal notification: I have severed any

and all association with your disgraceful

agency. U.S.D.A.-A.P.H.I.S.-V.S. Void my

license immediately." The letter,

inarticulate as it is, since Petitioner was

in a fighting mood, and not a writing mood,

nevertheless shows that Petitioner never had

any intention to accept the unapplied for

Class B license and allowed it to

lapse/automatically terminate, as it by law

did on October 26, 1986 at the latest, if it

ever even existed. The "Void my license

immediately" statement was made out of

exasperation at their refusal to admit that

they no longer had any authority over

——

Petitioner or his farm and persisted to

pretend that Petitioner had a _ license.

Petitioner at this time was not even aware

that not one, but four searches had

occurred, or of the scope of those searches,

or that Respondent had maliciously initiated

an effort to fine him $5,000 which was based

on their fabricated evidence and falsified

documents. This was only learned by

Petitioner when he was served with

Respondents’ brief for their motion to

dismiss on about August 23, 1992 or a few

days thereafter. On February 10, 1987, one

day after receiving Petitioner’s letter of

outrage complaining, inter alia, about Maas

urinating near his well, Kirchberg sent

Eppele a report identified as Case No. MN-

AW-87-11, in which, besides the previously

referred to false statements, he added:

"His file contains many abusive letters

which he has written to VS and some

inspection reports and other official

documents which he has returned to this

office after crumpling them, defacing then,

urinating on them and writing obscenities on

some." These lies, obviously made to cover

up Maas’ urinating by Petitioner’s water

well, were also indicative of the

Respondent’s desire and intent to retaliate

for his exercise of his freedom of speech.

Additionally, Petitioner never returned his

copies of inspection reports which suggests

theft or fabrication or both. Kirchberg’s

report was acquired via a@ Freedom of

Information Act request; and appeal, after

it was claimed that all records had been

destroyed. More FOIA appeals are pending

since the USDA is not responding to

Petitioner’s requests truthfully or

completely, and Petitioner’s Request for

Production of Documents was denied by

Respondents.

Petitioner brought a Bivens action

against the Respondents in the st. Louis

County District Court of Minnesota. on

January 12, 1991, the action was removed to

the United States District Court, District

of Minnesota, Fifth Division. Jurisdiction

was invoked under Title 28 U.S.C. 1331,

1346, and 1332. On March 9, 1992,

Respondents filed their Motion to Dismiss

or, in the Alternative, for Summary

Judgment. On April 23, 1992, the United

States was submitted as defendant and

Respondents were certified as acting within

the scope of employment by the United States

Attorney. On May 28, 1992, Respondent’s

motion for dismissal was heard before

Magistrate Judge Raymond L. Erickson who

ordered supplemental briefs to be submitted.

On January 7, 1993, Magistrate Judge

Erickson filed his Report and

Recommendation. On January 20, 1993,

Petitioner filed his objections to the

Report and Recommendation. On February 1,

1993, Respondents filed their response to

Petitioner’s objections to the Report and

Recommendation. On February 23, 1993, the

District Court issued its Order that the

Magistrate Judges Report and Pecommendation

was accepted in whole, and Petitioner’s

Complaint was dismissed for lack of

jurisdiction. Petitioner filed his motion

to vacate or amend judgment, and/or for a

new hearing on all the issues or, in the

alternative, for relief from judgment. On

March 15, 1993, Respondents filed their

response to Petitioner’s motion to vacate or

amend judgment, and/or for a new hearing on

all the issues or, in the alternative, for

relief from judgment. On March 30, 1993,

the District Court issued its Order denying

Petitioner’s motion to vacate or amend

judgment. On April 28, 1993, Petitioner

filed a timely Notice of Appeal. Petitioner

requested and was granted an additional 14

days in which to file his brief and on June

29, 1993, Petitioner submitted his timely

brief to the Court of Appeals for the Eighth

Circuit. Respondents similarly requested

and were granted additional time to file

their brief; and did file their timely

brief. Petitioner’s arguments in his brief

were essentially the same as those embodied

in this Petition for Writ of Certiorari anc

those he has argued consistently throughout

this litigation, which are: that he did not

meet the 9 CFR Section 1.1 (t) definition

and requirements of a "dealer"; that he was

not engaged in any activity subject to the

AWA; that he could not legally be licensed

as a dealer, but only as an exhibitor; that

he had applied only for a Class C

(exhibitor) license which was denied, the

application fee returned, and that should

have been the end of any connection to any

USDA license; that the USDA could not

substitute a useless and illegal Class B

license and hold Petitioner subject to its

provisions, especially when he rejected it

and willfully did not pay the license fee;

that he had voluntarily terminated his

unapproved 1985 Class B_ license by

specifically applying for a Class C license

when a licensee is permitted to possess only

one class of license, and by specifically

rejecting it after it was issued to him

instead of the applied for Class C license;

that even if the Class B license actually

existed, it was automatically terminated, by

law before the warrantless, consentless,

without his presence or knowledge, searches

occurred; that even if the Class B license

actually existed, the warrantless and

consentless searches were still prohibited

during the absence of the licensee and any

agent of his and without their knowledge;

that, additionally, the searches, under any

circumstances, were conducted in areas

beyond the scope and authority of the AWA;

that for those reasons, the searches were

unreasonable, and in violation of Amendment

Four of the United States Constitution; that

the searches conducted in Petitioner’s

absence, denied him the right and

opportunity to voluntarily terminate his

license, if it actually existed, which would

have terminated the searches at their onset,

thus, Petitioner’s rights under the due

process clause of the Fifth Amendment of the

United States Constitution were violated;

that the illegal acts of the USDA agents in

fabricating evidence, falsifying official

documents, including affidavits under oath,

and attempting to maliciously prosecute and

fine him $5000, urinating by his water well,

were deliberately done in retaliation for

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

KENNETH S. BENIGNI,

PETITIONER,

vs.

DONALD W. MAAS, JOHN F. KIRCHBERG,

DENNIS MUNSON, AND P.M. EPPELE,

RESPONDENTS ,

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

KENNETH S. BENIGNI

PETITIONER PRO SE

7485 Kauppi Lake Road

Cotton, Minnesota 55724

Tel; (None)

Petitioner’s use of his freedom of speech to

criticize other illegal or improper

government acts, which violated his rights

under Amendment One of the Constitution of

the United States; that the effect of the

USDA agents’ illegal acts was to destroy any

possibility of Petitioner ever obtaining a

Class C license to operate his zoo, or being

able to operate it without fear of more

false and serious charges, based on

fabricated evidence, being brought or

leveled against him by USDA or other

government agents in retaliation for his

seeking redress for his grievances, or

otherwise criticizing or exposing the

Respondents; that Petitioner’s rights to

earn a living in a lawful business, to use

his property according to his will, and to

engage in his chosen profession under the

Fifth Amendment of the Constitution of the

United States were violated; that the acts

of the USDA agents, including criminal acts,

were not done in the scope of their

employment, and the United States cannot be

substituted as the Defendant; that possible

separate claims for malicious prosecution

and the intentional infliction of mental

distress, based on evidence of fraudulently

concealed until discovered in Respondents’

brief served on Petitioner after being

mailed April 23, 1992, subject to the

Federal Tort Claims Act, provided Petitioner

files a properly executed Form 95 to the

USDA within the 2 year statute of

limitations; are viable and not affected by

the instant case; that summary judgment

would be improper since Respondents had

refused Petitioner’s request for the

production of documents; and, that the

District Court had abused its discretion by

overly deferring to the Respondents’

Declarations which their previously made

affidavits showed were perjurious' in

material and critical matters.

The Court of Appeals for the Eighth

Circuit held: that it was undisputed that

Petitioner had not derived more than $500 in

1985 or 1986; that, however, the regulations

all»swed individuals to be licensed under the

AWA even if they did not meet the technical

requirements of a dealer or exhibitor; that

the status of Petitioner’s 1985 license was

immaterial; that Petitioner’s claim that he

had terminated his Class B license was

unfounded; that the Administrative Procedure

Act (5. U.S.C. Section 558 (c)) requires a

written notice and opportunity to achieve

compliance before a license can be revoked

or suspended; that Petitioner was a licensed

dealer and thus subject to the AWA; that the

warrantless administration searches were

reasonable and not in violation of the

Fourth Amendment; that Petitioner’s actual

441

presence at the searches, which were

conducted in his absence was immaterial;

that Petitioner had given consent to the

searches; that Petitioner did not exhaust

his administrative remedies subject to the

FTCA and, thus, the District Court was

without subject matter jurisdiction, anid

therefore, the Eighth Circuit did not need

to address the issue of deference to the

certification of scope of employment, the

malicious prosecution clain, or... tie

contamination claim; and that, the District

Court did not abuse its discretion in

denying Petitioner’s motion to alter or

amend the judgment. The Eighth Circuit,

however, failed to address the issues of:

Were searches conducted in areas beyond any

authority of the AWA unlawful and

unreasonable? Were the criminal acts of

deliberately falsifying official documents

outside the scope of the agents’ employment?

Did the District Court err in relying on the

Respondents’ proven to be _ perjurious

declarations that Petitioner was buying and

selling animals in concluding that he was a

dealer? and, whether the District Court

erred in denying the Petitioner’s motion to

vacate by dismissing Petitioner’s newly

discovered evidence is hearsay legal

conclusions when, in fact, Petitioner’s

affidavit clearly states that Petitioner was

a party to the conversations, that he has

tapes of the conversations, that he has

telephone bills confirming the calls to the

other party, who was in fact, a former USDA

agent who had participated in the licensing

purpose inspection of Petitioner’s zoo

facilities on August 20, 1986 and whose

Sworn Affidavit concerning that event

appears in the Respendents’ exhibits, and

who admits that the agents never entered the

skunk building in which several violations

were falsely listed on their official USDA

inspection report, and, in fact, the agents

never even saw the animals in that building.

Petitioner’s Petition for Rehearing and

Suggestion for Rehearing En Bane was denied

January 21, 1994.

REASONS FOR GRANTING WRIT

Certiorari should be granted for three

reasons. In holding that the actual

presence of the owner/licensee, or an agent

of his, during an administrative search of

his premises, without him, or any agent of

his having any knowledge of the search, is

immaterial; the Eighth Circuit has decided

an extremely important question of federal

law which had not been, but should be sett-

led by this Court and which in other aspects

conflicts with applicable decisions of this

Court.

In holding: (a) that Petitioner was a

Licensed dealer at the time of the searches,

ee ee

when numerous facts make that an

impossibility, and (b) in not addressing the

issue of the certification of scope of

employment, when criminal acts and

deliberate violations of Amendments, One,

Four and Five were certified to be within

the scope of employment; the Eighth Circuit

has so far departed from the accepted and

usual judicial proceedings, that its

departure calls for an exercise of this

Court’s power of supervision.

Because the issue of searches without

presence, knowledge, consent, or warrant

concerns a matter of grave national

consequences, it will be addressed first,

although the logical sequence would be to

address the issue of licensure first.

SEARCHES WITHOUT PRESENCE, KNOWLEDGE,

CONSENT, OR WARRANT

Reasonableness, has always been the

cornerstone of this Court’s decisions

pertaining to the Fourth Amendment of the

United States Constitution. (petition at

4 ) Barring exigent circumstances,

administrative searches conducted during the

absence of the owner/licensee, or any agents

of his, and without his/their knowledge or

consent, and without warrant, i.e. in

secret, are unreasonable. For a licensee,

owner, or manager of a business subject to

administrative searches, to have to live in

constant fear that the minute he or his

agents are absent during arbitrary "business

hours", defined by clock and calendar,

rather than by facts and circumstances,

government agents, without his or his

agents’ consent or knowledge, and without

warrant, can swarm all over and through his

business premises and possessions, is not

only unreasonable, it's outrageous Not only

is the Fourth Amendment offended, but the

due process clause of the Fifth Amendment is

also offended since such searches rob the

licensee, owner, or manager of his right to

insist that the government agents comply

with statutory safeguards and/or his own

security requirements, or to limit the

extent of the search. It also robs him of

his right to see credentials and monitor the

activities of the government agents, or to

insist on a warrant, regardless of whether

penalties might issue for that insistence,or

to simply voluntarily terminate his license

at the onset of the search which would

terminate the search by reason of the

elimination of the authority to conduct the

search.

In the leading cases relating to

administrative searches that came before this

Court; specifically: Camara v. Municipal

Court, 387 U.S. 523 (1967); United States v.

Bisswell, 406 U.S. 311 (1972); Donovan v.

Dewey, 452 U.S. 594 (1981); Marshall v.

Sb D tree Be hE ns eel Pl A ltt A lo ae Seg AEM AN AP late S

Barlow’s, Inc., 436 U.S. 307 (1978); and New

york v. Burger, 482 U.S. 691 (1987), all are

distinguishable in that the lessee,

licensee, owner, or his agent was always

present, and thus, this Court was not

presentea with the opportunity to

specifically settle the question of: Is an

administrative search conducted during the

absence of the owner/licensee, or any agents

of his, without his/their knowledge or

consent, and without warrant, (essentially

in secret) in violation of the Fourth

Amendment of the United States Constitution?

Knowledge of and presence of extremely basic

factors relevant to any search. Their

exclusion makes administrative searches a

whole new ball game; reaching all regulated

or quasi-regulated businesses and should be

addressed by this Court. The Eighth

Circuit’s holding that knowledge of or

presence at the administrative search by the

licensee/owner, or any of his agents is

immaterial has essentially wrested all right

of control of their own property and

premises from business owners or managers.

Under this holding, government agents can

simply wait until the owner or his agents go

to lunch; go shopping; go to the hospital;

go to a funeral; go on a vacation; or go on

a honeymoon; and then enter the premises

and run amok for days. Such searches are

patently unreasonably. Without the

owner/licensee or his agent being present

during the search, it is impossible for him

to: monitor the activities of the government

agents; prevent their entrance into areas

not covered by the authority of the agents;

check their credentials to prevent

unauthorized persons being slipped in; learn

the agents’ identity; prevent contraband

being brought in to possibly frame him for

crimes or violations; prevent disease being

AEE Sa MEE it CRNA IRE RRS TR Be RIN a CALAN ERR LM RLS

BENS NE yin /

brought in; prevent disease being taken out;

prevent the agents from being exposed to

disease, dangerous conditions like: high-

voltage lines, attack dogs, dangerous

animals, quicksand, or deadly chemicals;

know if the agents are really agents and not

burglars, an uncertainty which could easily

result in the death of the agents or of the

owner/licensee or his agent(s); or, as the

instant case explicitly demonstrates; to be

aware of the wholesale falsification of

documents and the fabrication of evidence

intended to be used to maliciously prosecute

Petitioner in retaliation of his criticism

of illegal or improper acts of government

agents; and to prevent the contamination of

his water supply.

In the instant case, the District

Court’s reliance (Appendix at 55a )on 9 CFR

Section 2.126 (petition at 11) which states

in pertinent part:

Each dealer, exhibitor, operator of an

auction sale, or research facility,

shall, during ordinary business hours,

permit Veterinary Services

representatives, or other Federal

officers or employees designated by

the Secretary, to enter his place of

business...(emphasis added)

is unfounded. The record shows that

Petitioner was not engaged in any business.

He did not buy, sell, or exhibit any animals

during 1985 or 1986. Thus, his premises

were not a "place of business". This fact

also precludes the existence of "business

hours" which imply a business is being

conducted there. Moreover, although 9 CFR

Section 2.126 uses the term "during ordinary

business hours", Public Law 91-579, 84 Stat

1560 (Animal Welfare Act of 1970) (petition

ati3) used the term "at all reasonable

times" (emphasis added). During one’s

absence is not a reasonable time.

Additionally, since it is undisputed that

Petitioner applied for a Class C license, on

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;

the official application form, and that

applicaticn was rejected and Petitioner’s

$10 application fee returned, (Appendix at

2a) that act terminated anything Petitioner

may have agreed to comply with on the

application form. His agreement to comply

became null and void. There was no contract

or agreement entered into. Thus, Petitioner

was not subject to any of the requirements

under the AWA. Moreover, 9 CFR Section

2.128 (petitionat 12) provides in pertinent

part:

(a) Each dealer, exhibitor, operator

of an auction sale and research

facility shall, upon request, during

ordinary business hours, permit, ynder

, police of

law officers of legally constituted

law enforcement agencies with general

law enforcement authority...to enter

the place of business of such

dealer...to inspect animals and

records for the purpose of seeking

animals that are missing: (2) The

including the use of sterile clothing,

footwear, and masks where recuired, or

OT aa mamma ana

The fact that this AWA regulaticn requires

that law enforcement officers make a

request, and the licensee is authorized to

demand the law enforcement officers abide

by all of his security measures, precludes

any possibility that the search could be

made without the licensee or an agent of his

being aware of the search, either by his

presence, or by the required request, at

which time he could require his present as

one of his easily understandable security

measures. Petitioner did not argue that

administrative searches were impermissible

without a warrant as the Eighth Circuit

implies. (Appendix at 7a) They, of course,

are; provided the person whose premises are

being searched is duly licensed; and he or

an agent of his is present, and the search

OS te: CaO ON

does not go beyond the scope and authority

of the AWA. This was well understood by the

USDA. The record shows that a letter

written by USDA Administrator James W.

Glosser to then, United States Senator, Rudy

Boschwitz on April 3, 1989 concerning

Petitioner and USDA searches, states in

totally unambiguous terms:

If he were to become licensed, our

personnel would only inspect his

facility when he was present.

A letter written by Respondent P. M. Eppele

to all licensees, admits to,and complains of

"unsuccessful inspection attempts". Were

USDA agents permitted to search when

licensees or their agents were not present,

such unsuccessful inspections would not have

occurred. Former USDA agent W. Scott

Manning, who was present at the August 20,

1986 licensing purpose inspection of

Petitioner’s zoo facilities confirmed that

USDA agents were not permitted to enter a

licensee’s premises when no one was present,

during a taped conversation in 1993; after

Petitioner finally located hin.

Additionally, through a Freedom of

Information Act (FOIA) request and appeal,

Petitioner obtained a USDA, APHIS, REAC

training manual entitled: "BASIC TRAINING

MODULES" which has a section entitled:

"ATTEMPTED INSPECTIONS", which states in

pertinent part:

"Since all routine inspections are

unannounced, there may be times you

arrive at the facility to find no one

home. If this happens, do the

following: 1. Make sure there is no

one home. Knock loudly several times.

Call out the person’s name. If you

are in a rural area, honk your horn a

few times. 2. Check file for phone

numbers to call (work, spouse,

neighbor) see if they can be at the

facility in 15-20 minutes. 3. If no

response, wait in your car for 15-20

minutes to see if anyone comes. (Use

this time to review files or

regulations) If no one comes, fill

out an attempted inspection report as

follows:...First attempt...Second

attempt...Third attempt...After you

have made an attempt inspection,

please do not return to the facility

until after you have received a copy

of the certified letter from the

office. (emphasis in original)

9 CFR Section 2.5 provides in pertinent

part: (petition at 10)

(a) A license issued under this part

shall be valid unless: (2) Said

license is voluntarily terminated upon

the request of the licensee in writing

to the Veterinarian in Charge.

This section establishes that all a licensee

need do is to hand the would-be searching

agents a note made out to the Veterinarian

in Charge requesting that his license be

terminated and the authority for conducting

the search is simultaneously terminated.

That right of his is denied him if the

opportunity to do so is precluded by a

search conducted in his absence and without

his knowledge in violation of both Amendment

Four and Amendment Five of the United States

Constitution.

Moreover, the USDA agents searched 12

buildings, 11 of which were 96 feet long,

none of which housed any animals whatsoever,

and did not come under the authority of the

AWA under any circumstances. The entire

area was posted against trespassing and, in

fact, Respondent Maas included sketches of

some of those no trespassing signs in his

notes. The searches were blatant

intentional constitutional torts, excluded

from the PICA by 28 U.S.C. Section 2679

(b)(2)(A), (petition at 17). Therefore, the

agents are liable under Bivens v. Six

Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971)

THE IMPOSSIBILITY OF LICENSURE

Petitioner could not have been legally

licensed as a dealer under the AWA at the

time the searches occurred for several

reasons, any one of which is sufficient to

preclude any possibility of his having a

valid Class B dealer license at the time of

the searches. Public Law 94-279 and Title

7 U.S.C. Section 2132 (f) (petition at5 )

states in pertinent part:

(f) The term "dealer" means any person

who,

of, (1) any dog

or other animal whether alive or dead

for research, teaching, exhibition, or

use as a pet...except that this term

does not include - (ii) any person who

does not sell, or negotiate the

purchase or sale of any wild animal,

dog,or catand who derives no more than

from the sale of

other animals any calendar year;

(emphasis added)

Petitioner did not buy or sell any animals

whatsoever in 1985 and 1986. There was

absolutely no commerce involved. Not one

cent changed hands. The matter is

jurisdictional, Petivcioner did not fit the

definition of a dealer and the Animal

Welfare Act did not have any jurisdiction

over him as such. The matter should end

there. Under 9 CFR Section 1.1 (w),

Petitioner could have only qualified as an

"exhibitor", (petition at6) provided he had

been issued a Class C "exhibitor" license,

and had actually engaged in the activity,

which he was not and did not, respectively.

He did not meet the requirements of a dealer

in order to be granted a Class B license,

and he was denied the Class C license he had

applied for. He had no license at the time

of the searches. The Eighth Circuit

mistakenly concluded that Petitioner had

sought to convert his Class B license to a

Class C license in 1986. That attempt was

made in 1985. (Appendix at2a) The record

shows that Petitioner stopped selling

animals in 1984. In June of 1985,

Petitioner requested a change from his Class

B license, which was no longer legal or

applicable to his needs, to a Class c

license which was legally applicable to his

needs and was required by law. The USDA

ignored his request for the class of license

change and sent him a letter which simply

said that his fee had been received, rather

then; that his application had _ been

approved, as had been done on 11 previous

applications spanning 11 years. Without an

approval, an application remains simply an

application. Thus, the status of the 1985

is significant — one cannot renew what one

does not have to begin with. Specifically

to avoid the run around, ambiguity, and the

failure of the USDA to respond to his

request for a class of license change in

1985: in June of 1986, he applied

specifically for a Class C license and

enclosed the $10 Class C license fee and not

the $5 Class B license fee; but he again

was sent the useless, and illegal for his

purposes, Class B license which he had not

applied for. On August 18, 1986, Petitioner

sent a certified letter to the USDA

rejecting the Class B license which stated

in pertinent part: "I acknowledged that I

had received my Class C license. However,

I said that I wanted a Class C license

inasmuch as I have no intention of selling

animals." ("received my license" meant

receiving approval for application)

Petitioner’s certified letter not only

rejected the Class B license, but put the

USDA on notice that he had no intention of

selling animals (which precluded any need or

use for a Class B dealer license). The fact

that it was certified indicates that

Petitioner considered the contents tc be

important. Since a licensee is permitted to

have only one class of license, it is only

logical to conclude that an application for

a Class C license is a voluntary termination

of the Class B license. Especially when

followed by a letter rejecting the Class B

license which was sent. USDA policy is

reflected in a letter, obtained via an FOIA

request by Petitioner, written to F. Miave

Binkley, Animal Care Specialist, Annapolis,

MD by R.L. Crawford, Director, Animal Care

Staff, Regulatory Enforcement and Animal

Care, entitled: Policy — Change of License

Class. It states:

This is to

concerning the procedures to follow

when a licensee changes the class of

license held. A change of license is

business to a Class B dealer, the

licensee must apply for a new license

prior to conducting any business

involving animals which the dealer

does not raise. All deficiencies must

be corrected prior to issuance of a

new license. ..In the case of a Class C

The dealer/exhibitor is allowed to

continue to operate until renewal

because an exhibitor may buy and sell

animals and a B dealer may exhibit.

The licensee should be advised prior

to termination of the license, that

new license. If the licensee can

provide proof that they do meet the

definition then the license could be

continued. The decision between a

depend upon which type of operation is

the major part of the business (most

income derived from it). (emphasis

added)

Although written on December 13, 1991, 5

years after the searches, the letter,

nevertheless states it was written to

clarify the policy concerning license class

changes, indicating the policies existed

prior to the letter, and were, in fact, as

Petitioner knew them to be in 1986. It does

establish that great emphasis was put on

strict adherence to the terms of the

definitions of dealer and exhibitor, and

that a change of license is a new license,

and that licenses could, and were being

terminated if they did not meet the

requirements of those definitions.

The record further shows that

Respondents were fully aware that Petitioner

wanted, and could only use a Class C

license, and on August 20, 1986, three USDA

agents all told him that he did not qualify

for a Class C license, returned his $10

application fee and told him that he would

have to pay the $5 renewal fee for the Class

B license, which he did not apply for.

(Appendix at 2a) Petitioner was explicitly

told that he must send the $5 fee for the

useless Class B license by all three agents

individually. That certainly was sufficient

notice; and considered to be such «ince all

three agents included that information in

their sworn affidavits within 2 days of the

August 20, 1986 inspection. Moreover,

Petitioner did not "request" a change of

class of license, he applied specifically

for the only license he could legally use,

which was a Class C exhibitor license. It

was a Class cC license or pothing.

Additionally, the denial of the Class C

license and the return of the application

fee terminated the application, and released

Petitioner from any conditions he may have

agreed to on the application form, which was

subject to the Class C license being issued.

That was the end of any effort by Petitioner

to enter into a contract for a license.

There was no contract made. The USDA had no

option to substitute a useless and unwanted

and illegal, (for purely exhibiting

purposes) Class B license.

Voluntary Licensure

The Eighth Circuit erred in concluding

that the regulations in effect in 1986

allowed Petitioner to be licensed even if he

did not meet the technical requirements of

a dealer. (Appendix at5a) 9 CFR Section 2.1

(b), (petition at 7) provides in part:

(b) Any person who is not a dealer or

exhibitor but desires to obtain a

license, shall follow the requirements

for dealers and exhibitors set forth

in paragraph (a) of this section and

in sections 2.2 and 2.3, and shail

j furnished

agree in writing, on a form

by Veterinary Services... (emphasis

added)

While this regulation may have allowed

voluntary licensure, that allowance is

contingent upon their desire to obtain a

voluntary licensure, not the USDA’s desire

to license then. The record shows that

Petitioner had no desire to have a

voluntary, useless Class B license, nor did

he apply for one, nor did he sign any

special form for one, nor have the

Respondents ever claimed the existence of

any such voluntary license. The Eighth

Circuit’s conclusion is contrary to the

evidence and erroneous.

Automatic Termination

9 CFR Section 2.5(b) (petition at 10)

provides in part:

(b) Failure by a licensee to pay the

annual iicense fee as required by

section 2.7 on or before’ the

anniversary date of his license shall

result in automatic termination of the

license: Provided, however, That

prior to such termination the licensee

shall be given notice and opportunity

to comply with the annual license fee

and reporting requirements. Failure

to comply with the annual license fee

and reporting requirements within 60

days from the receipt of such notice

shall result in automatic termination

of the license.

Since Petitioner deliberately did not send

the USDA the demanded $5 Class B license fee

for the renewal of the never approved 1985

Class B license, if it ever even existed,

(there is not one shred of paper that

indicates the 1985 application was ever

approved or issued) by the terms of 9 CFR

2.5(b), it expired on October 20, 1986, 60

days after he was notified to send the $5

fee by three USDA agents individually on

August 20, 1986. The Eighth Circuit erred

when it accepted the District Court’s

conclusion that Petitioner first received

notice on December 3, 1986. (Appendix at

6a) This "notice" was a "note" on the back

of the inspection report made during the

first search, and was left pinned to the

door to Petitioner’s house when it became

known that Petitioner was 900 miles away

(approximately) in Ohio, and did not provide

the 60 days grace period, but rather an

arbitrary 12 days. Petitioner never even

saw the report and the note until about May

1, 1987 when he returned from Ohio. If this

was sufficient notice, then the verbal

notifications of three individual agents on

August 20, 1986, certainly were sufficient

notice. He had been provided with the

pertinent regulations of 9 CFR Section 1.1

et seq. which provided all the notice he

ever needed, and in fact, present USDA

policy and regulations consider being

provided with those regulations is

sufficient notice. Moreover, any

irregularity involving the Respondents’

responsibility should work to’ their

prejudice, not to Petitioner’s.

writt Not Not _R ned

The Eighth Circuit erred by holding

that the notice to pay the license fee must

be in writing. (Appendix at 6a) Nowhere in

9 CFR Section 2.5 is written notice

required. (petition at f0) Moreover,

Petitioner’s act of not paying the $5 fee

was purely willful, and is thus excluded

from the provisions of the Administrative

Procedure Act, § U.S.C. 558 (c) (petition

at 18)states in pertinent part:

_ (c)..-Except in cases of willfulness

or those in which public health,

interest, or safety requires

otherwise, the withdrawal, suspension,

revocation, or annulment of a license

is lawful only if, before the

institution of agency proceedings

therefore, the licensee has been given

— (1) notice....,(2) opportunity...,

(emphasis added)

Additionally; in Schwebel_ v. Orrick,

D.C.D.C. (1957), 153 F. Supp. 701, affirmed

251 F.2d 919, 102 U.S.App.D.C. 210,

certiorari denied 78 S.Ct. 716, 356 U.S.

925; it was held that:

This section providing that except in

cases of "willfulness", revocation of

any license shall be unlawful unless

prior to institution of agency pro-

ceedings written notice is given to

licensee, “willfulness" means the in-

tentional doing of act charged.

and in: Atlantic Richfield Co. v. U.S.

(1985), 774 F.2d 1193, 249 U.S.App. D.C.

224; it was held that:

License that expires on its own terms

is not protected by 5. U.S.C. Section

558 (c), governing withdrawal of

licenses.

Thus, Petitioner was given adequate notice

on August 20, 1986 and the Class B license,

if it ever even existed, automatically

terminated on October 20, 1986.

Letter Taken Out of Context

The Eighth Circuit’s determination that

Petitioner "requested" that APHIS void his

license is taken completely out of context.

Petitioner clearly stated earlier in that

same paragraph: "It should have been

crystal clear to you that I had severed all

connections with your agency when I did not

send you the 5 dollar license fee..." and

"Since your did not have enough sense to

realize that, then this is a formal

notification: I have severed any and all

association with your disgraceful agency".

(emphasis added) Those statements clearly

indicate that Petitioner had severed any

connection with the USDA when he

deliberately did not send the fee for the

unwanted and unapplied for Class B license.

Petitioner’s statements were made in the

past tense. One does not make requests in

the past tense. It is not disputed that

Petitioner concluded the letter with "Void

my license immediately." However, since he

knew he didn’t have a license anymore, but

a mob of USDA agents were pretending he did

and were swarming all over his property and

through his buildings, and urinating where

it certainly contaminated his water supply,

and he was 900 miles away and couldn’t guard

his farm, and he wanted those outrageous

acts to stop immediately; he had to say

something to get the message across and get

the agents off his property. Those were the

words that came out. He could have said

"take your phoney license and shove it, and

don’t you ever put one foot on my land

again.™ The thrust is the same. However,

the letter is mere surplusage; the license

was already terminated by the provisions of

the AWA on October 20, 1986; if it ever even

existed in the first place. Especially

since Petitioner couldn’t meet the

definition of dealer, and wasn’t involved in

any commerce whatsoever to bring him under

the authority of the AWA. Legal issues

aside, if Petitioner had wanted a Class B

license; all he had to do was send the USDA

$5, simple as that. As he had done pre-

viously for 11 years, But he didn’t. In

writing; in words; and by his actions;

Petitioner said No to a Class B license.

When a woman says No to sexual demands of a

man; is he entitled to rape her anyway?

because she didn’t provide him with a lawyer

authored refusal? Petitioner thinks, not.

SCOPE OF EMPLOYMENT

The record shows that Respondents Maas,

Kirchberg, and Munson, under the supervision

of Respondent Eppele, conducted 4 searches

of Petitioner’s premises, including 12

buildings, 11 of which were 96 feet long,

containing no animals whatsoever, and were

beyond any authority of the AWA, during

Petitioner’s absence, without his knowledge

or consent, and without warrant, in

violation of the Fourth Amendment of the

United States Constitution; (petition at 4)

deprived Petitioner of his right to

terminate the search(s) by voluntarily

terminating his license (if it actually

existed) thereby removing the authority to

conduct the search(s) in violation of the

due process clause of the Fifth Amendment of

the United States Constitution (petition at

4}; fabricated evidence and falsified

government documents in violation of Title

18 U.S.C. Section 1001 which is a felony,

punishable up to 5 years in prison and/or a

$10,000 fine (petition at 15); later sent the

falsified documents to the Chief Staff

Officer of the VS, APHIS Compliance and

Enforcement Program "in order to commence

enforcement proceedings" and the case was

then sent to the Office of the General

Counsel for legal action with a

recommendation that Petitioner be fined

$5,000. The record further shows that Maas

urinated in very close proximity to

Petitioner’s drinking water supply, thereby

contaminating it. The agents violated their

own USDA regulations against "Engaging in

criminal, infamous, dishonest, or

notoriously disgraceful conduct or other

conduct prejudicial to the Government."

(7 CFR Subtitle A, Sec. 0.735=-11) (petiti-

on at 14) Maas also falsified other

official government documents on August 13,

1985 and August 20, 1986. The record

contains examples of the agents’ animosity

to Petitioner’s use of his freedom of speech

to criticize the unlawful acts or improper

conduct of government agents or officials

which strongly suggests that the agents were

strongly motivated to retaliate against him

for his exercise of his freedom of speech in

violation of the First Amendment of the

United States Constitution (petition at }3)

And, to intentionally inflict mental anguish

upon Petition for his criticism of

government agents’ unlawful or improper

acts. The deliberate prevention of

Petitioner, through the unlawful acts of the

agents, to use his land as he chose, and to

engage in his chosen profession, further

violated his property and liberty rights

under the Fifth Amendment of the United

States Constitution. (petition at 4)

None of the above acts of the agents

could possibly be in the interest of their

employer, the United States. They are the

antithesis of the interest of the United

States. Their acts were not contemplated by

their employer. Their acts were not within

the scope of their employment. Moreover,

Title 28 U.S.C. Section 2679 (b)(2)(A)

(petition at 17) states in pertinent part:

(2) Paragraph (1) does not extend or

apply to a civil action against an

employee of the Government = (A)

which is brought for a violation of

the Constitution of the United

States....

For these reasons the United States cannot

be substituted as the Defendant. The Eighth

Circuit erred by finding, and by deferring

to the United States Attorney’s

Certification of Scope of Employment, that

the Respondents were acting within the scope

of employment. That finding is completely

unsupported by the evidence.

CONCLUSION

For the foregoing reasons this petition

for a writ of certiorari should be granted.

Dated: April 20, 1994,

Substitution, pursuant to Supreme Court

Rule 33.7, dated: May 22, 1994.

Respectfully submitted,

Ltteey

Kenneth S. Benigni

Petitioner, pro se

OE ep ee ee ee, ee ae eee oe

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 93-2134

Kenneth S. Benigni,

Appellant, Appeal from the

United States

District Court for

the District

of Minnesota

Vv.

Donald W. Maas; John

F. Kirchberg; Dennis

Munson; P. M. Eppele,

[UNPUBLISHED]

*eeeeenee ee +

Appellees.

Submitted: November 1, 1993

Filed: December 8, 1993

Before JOHN R. GIBSON, MAGILL, AND BEAM,

Circuit Judges.

PER CURIAM.

Kenneth Benigni appeals the district

court’s' dismissal of his Federal Tort

Claims Act (FTCA) cause of action and his

Bivens claim. We affirm.

From 1973 to June 1986, Benigni was a

licensed animal vendor, pursuant to the

Animal Welfare Act (AWA), 7 U.S.C. § 2131,

et. seq. On June 3, 1986, Benigni notified

the Animal and Plant Health Inspection

Service (APHIS) that he wanted to convert

his Class B "dealer" license to a Class C

"exhibitor" license, and sent the $10

application fee for a Class c license.

APHIS renewed Benigni’s Class B license

until June 26, 1987. On August 20, 1986,

APHIS officials inspected his operation.

Benigni was told that he did not qualify for

a Class C license. The inspectors returned

Benigni’s Class C application fee and told

Benigni that he would have to pay the $5

renewal fee for his Class B license.

Shortly thereafter, Benigni left

ithe Honorable Richard H. Kyle, United

States District Judge for the District of

Minnesota.

Minnesota for Ohio and left the care of his

animals to his neighbors. On December 3,

1986, defendants Maas, Krichberg, and

Munson, all APHIS employees, inspected

Benigni’s farm and posted a list of

deficiencies on his front door. Follow-up

inspections occurred on December 4, 5 and

10, 1986. On February 3, 1987, Benigni

wrote a letter to defendant Eppele, APHIS

Veterinarian in Charge, expressing his

discontent with APHIS inspecting his

property in his absence and expressly

requesting that APHIS void his license.

Eppele terminated Benigni’s license on

February 10, 1987.

Benigni, pro se, brought this Bivens

action for alleged violations of his Fourth

Amendment rights, along with tort claims

stemming from the December 1986 inspections.

Over Benigni’s objections, the district

court adopted the magistrate judge’s?

ei ellis an anal

lengthy and thorough report and granted the

defendants’ motion to dismiss. After

Benigni’s motion to vacate or amend the

district court’s order was denied, he timely

appealed.

Benigni contends that the district

court erred in finding that he was a dealer

and thus subject to the AWA because he did

not meet the transactional requirements of

a "dealer"; his 1985 license was not

renewed; he rejected his 1986 Class B

license; and he never paid his 1986 Class B

license renewal fee and, therefore, his

license automatically terminated before the

searches occurred. It is undisputed that

Benigni had not derived more than $500 in

animal sales in 1985 or 1986. See 9 C.F.R.

§ 1.1(t) (1986). The regulations in effect

2vhe Honorable Raymond L. Erickson,

United States Magistrate Judge for the

District of Minnesota.

in 198€, however, allowed individuals to be

licensed under the AWA even if they did not

meet the technical requirements of a dealer

or an exhibitor. See 9 C.F.R. § 2.1(b)

(1986). Also, Benigni fails to acknowledge

that he sought a renewal of his Class B

license and that this license was renewed

from June 26, 1986, to June 27, 1987. The

status of his 1985 license is immaterial.

Benigni’s claim that he terminated his Class

B license is unfounded. His August 18, 1986

letter APHIS does not clearly convey a

desire to terminate his Class B license.

Further, on August 20, 1986, APHIS

inspectors told Benigni that he need not be

licensed under the AWA at all. Benigni,

however, refused to surrender his Class B

license.

Benigni contends that even if he had a

Class B license, it expired after he failed

to pay the renewal fee. Benigni relies on

9 C.F.R. § 2.5(b) (1986) for support that

his 1986 Class B license terminated prior to

the December searches. Section 2.5(b)

states that a failure to pay the renewal fee

will automatically terminate a license sixty

days after the licensee receives notice and

an opportunity to comply. 9C.F.R. § 2.5(b)

(1986). Benigni contends that he received

notice during the August 20, 1986 inspection

of his premises and that his license,

therefore, terminated around October 20,

1986, because of his failure to pay the

renewal fee. The district court determined

that Benigni received notice on December 3,

1986, when the defendants posted a list of

deficiencies on Benigni’s door. The

Administrative Procedure Act requires that

a licensee receive written notice and an

opportunity to achieve compliance before a

license can be revoked or suspended. 5

U.S.C. § 558(c) (emphasis added); cf. Cox v.

United States Dep’t of Agric., 925 F.2d

1102, 1104 n.8, 1105 (8th Cir. 1991)

(applying the APA to an AWA case), cert.

denied, 112 S. Ct. 178 (1991). Notice in

this context must be in writing; the August

20, 1986 conversation did not suffice. The

district court correctly determined that

Benigni was a licensed dealer and thus

subject to the AWA.

Benigni next asserts that the district

court erred in finding that the AWA

authorizes warrantless searches of dealers.

Warrantless administrative searches are

permissible when the business is closely

regulated and the regulatory rules limit the

scope of the search. New York v. Burger,

482 U.S. 691, 702-03 (1987); Western States

Cattle Co. v. Edwards, 895 F.2d 438, 441

(8th Cir. 1990). Warrantless administrative

searches are only reasonable when three

criteria are met: (1) the administrative

scheme concerns a substantial government

interest; (2) the warrantless search is

necessary to further the regulatory scheme;

and (3) the rules governing the inspection

offer a constitutionally adequate substitute

for the Fourth Amendment warrant requirement

by limiting the time, place and scope of the

search. Burger, 482 U.S. at 702-03. The

district court applied the Burger criteria

and found that AWA warrantless

administrative searches were reasonable and

not in violation of the Fourth Amendment.

Upon de novo review, we find the district

court was correct.

The AWA addresses aé_e substantial

government interest. See 7 U.S.C. §

2131(1). Congress recognized the need for

federal legislation because abuse of animals

occurs nationwide and state laws are

ineffective in preventing abuse. S. Rep.

No. 1281, 89th Cong., 2d Sess. (1966),

reprinted in 1966 U.S.C.C.A.N. 2636-37. The

Supreme Court has upheld as a substantial

government interest similar purposes

advanced in other statutory schemes. Ct.

Donovan v. Dewey, 452 U.S. 594, 602 (1981)

(substantial federal interest in improving

safety of nation’s mines); United States v.

Biswell, 406 U.S. 311, 315 (1972)

(regulating firearms of central importance

to federal efforts to prevent violent crime

and to assist states in regulating

firearms).

In Burger, the Supreme Court found

warrantless administrative inspections of

automobile junkyards necessary to further

the regulatory scheme. The Court stated

that "because stolen cars and parts pass

quickly through an automobile junkyard,

‘frequent’ and ’unannounced’ inspections are

necessary in order to detect them. In sum,

surprise is crucial...% Burger, 482 U.S. at

710. Likewise, surprise inspections are

crucial to detect violations of the AWA

which can be covered up quickly. See

Biswell, 406 U.S. at 316; Cox, 925 F.2d at

1107 (refusal to allow inspection prevents

detection of AWA violations). The need for

a warrant could frustrate the purposes of

the AWA.

The statutory scheme must be sufficient

comprehensive and defined that owners of

commercial property are aware that their

property will be subject to periodic

inspections. Burger, 482 U.S. at 691. The

AWA expressly authorizes administrative

inspections. See 7 U.S.C. § 2146(a). In

addition, regulations promulgated by the

Secretary allow for inspections. See 9

C.F.R. § 2.126 (1986). Each applicant for

a license or a renewal of a license must

acknowledge receipt of a copy of the

10a

regulations and agree to comply with then.

See 9 C.F.R. § 2.2. It is inconceivable

that a licensed dealer would have any doubt

about being subject to routine and regular

compliance inspections. In summary, after

review of the Burger requirements, we hold

that the AWA authorizes warrantless

administrative inspections.

Finally, Benigni argues that the

searches were illegal because they were

conducted in his absence. As discussed

above, individuals licensed under the AWA

cannot help but be aware that their property

will be inspected. Agreeing to the

extensive regulations by becoming licensed

is deemed to be consent to administrative

inspections. Marshal] _v. Barlow’s, Inc.,

436 U.S. 307, 313 (1978). In addition,

notice of future inspections is also given

by the statute itself and the signing of the

agreement to abide by the statute and

lia

regulations. Western States Cattle, 895

F.2d at 442 n.4; see also 9 C.F.R. § 2.2

(1986) (acknowledgement of standards). As

Benigni gave consent to, and received notice

of, future inspections, his actual present

was immaterial.

FTCA claims against the government must

be presented to the appropriate federal

agency within two years after the claims

accrue. 28 U.S.C. §§ 2401(b), 2675(a).

Benigni failed to exhaust his administrative

remedies because he never presented his

claims to any federal agency. As Benigni

has demonstrated no grounds for equitable

tolling, the district court correctly

determined that it was without subject

matter jurisdiction. See Niccolai v. United

States Bureau of Prisons, No. 92-3021, 1993

WL 347119, *2 (8th Cir. Sept. 15, 1993).

We, therefore, need not address the issue of

deference to the certification of scope of

12a

employment, the malicious prosecution clain,

or the contamination clain.

Finally, the district court did not

abuse its discretion in denying Benigni’s

motion to alter or amend the judgment. See

Concordia College Corp. v. W.R. Grace & Co.,

999 F.2d 326, 330 (8th Cir. 1993).

Accordingly, we affirn.

A true copy.

Attest:

CLERK, U.S. COURT OF

APPEALS, EIGHTH CIRCUIT.

13a

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

Kenneth S. Benigni,

Plaintiff,

Civil No. 5-91-183

Vv.

ORDER

Donald W. Maas, John F.

Kirchberg, Dennis Munson,

and P.M. Eppele,

Defendants.

Plaintiff Kenneth S. Benigni objects to

Magistrate Judge Raymond L. Erickson’s

Report and Recommendation that Benigni’s

complaint be dismissed for lack of

jurisdiction.

Benigni brought this action seeking

damages for alleged Fourth Amendment

violations, trespass, damage to property,

adulteration of documents, infliction of

emotional distress, and for purported

violations of the Minnesota Constitution.

l4a

These claims stem from several inspections

of his animal facilities pursuant to the

Animal Welfare Act (AWA), 7 U.S.C. § 2131 et

seq. (1988), by employees of the United

States Department of Agriculture (USDA) and

the Animal and Plant Health Inspection

Services (APHIS).

Magistrate Judge Erickson concluded

that the inspections Benigni complains of

were reasonable warrantless administrative

searches and therefore did not violate the

Fourth Amendment. As to the state law

claims, Magistrate Judge Erickson concluded

that the alleged acts were performed within

the scope of employment and thus that

Benigni’s sole remedy is under the Federal

Tort Claims Act (FTCA). As a jurisdictional

prerequisite, the FTCA requires that

plaintiffs submit their claims to the

appropriate federal agency within two years

of the accrual of their causes of action.

15a

28 U.S.C. § 2401(b) (1988). Because Benigni

has not filed a claim with the USDA or APHIS

and more than two years have elapsed since

the inspections, Magistrate Judge Erickson

concluded that the Court has no subject

matter jurisdiction over his potential FTC-

A claims,

The Court reviews de novo those port-

ions of the magistrate judge's report to

which the parties object. D.Minn. L. R. 72.

1(c)(2),. Benigni objects to the Report and

Recommendation on the grounds that he was

insulated from APHIS inspections because

he was not a "dealer" under the AWA, and

that the inspections did not comply with

AWA standards for administrative inspect-

ions.

After carefully reviewing Magistrate

Judge Erickson's report and Benigni's ob-

jections to it, the Court concludes that

Benigni was a licensed dealer at the time

16a

of the inspections and that the inspect-

ions did comply with the AWA standards.

Accordingly; based upon the entire

record the court ORDERS that Magistrate

Judge Erickson’s Report and Recommendation

of January 7, 1993, is ACCEPTED IN WHOLE.

Therefore, the defendants’ motion to dismiss

is GRANTED and Benigni’s complaint is

DISMISSED for lack of jurisdiction.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: February 22, 1993.

RICHARD H. KYLE, Judge

United States District Court

17a

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FIFTH DIVISION

Kenneth S. Benigni,

Plaintiff, REPORT AND

RECOMMENDATION

be Civil No. 5-91-183

Donald W. Maas, John F.

Kirchberg, Dennis Munson,

and P.M. Eppele,

Defendants.

ee ee

At Duluth, in the District of

Minnesota, this 7th day of January, 1993.

I. Introduction

The above-entitled matter came betore

the undersigned United State Magistrate

Judge, pursuant to a special assignment made

in accordance with the provisions of Title

28 6U.8.C. § 636(b)(1)(B), upon the

Defendants’ Motion for an Order which would

dismiss this action or, in the alternative,

would grant them Summary Judgment. A

18a

Hearing was held on the Motion, at which

time the Plaintiff appeared pro se, and the

Defendants appeared by Friedrich A. P.

Siekert, Assistant United States Attorney.

For reasons which follow, we recommend

that Plaintiff’s Complaint be dismissed for

lack of subject matter jurisdiction.

II. Procedural and Factual Background

By this action, which was commenced on

November 30, 1991, the Plaintiff seeks

damages for alleged violations of his rights

guaranteed under the Fourth Amendment of the

United States Constitution, and for asserted

acts of trespass, damage to property,

adulteration of documents, emotional

distress, and'a purported violation of the

provisions of the Minnesota Constitution.

The Defendants are officers and employees of

the United States Department of Agriculture

("USDA"), Animal and Plant Health Inspection

Service ("APHIS"), who are each responsible,

19a

in some capacity, for the inspection of

animal facilities and for the enforcement of

the Animal Welfare Act ("AWA"). Title 7

8.6. 13 t seq. The facts which

underlie the Plaintiff’s claims may be

briefly summarized.

The Plaintiff has been continuously

licensed by the USDA, as a dealer of

animals, from June 25, 1973 until February

10, 1987. On May 1, 1986, the Defendant P.

M. Eppele, who was the Area Veterinarian-in-

Charge of the Minnesota Branch of Veterinary

Services for APHIS, sent a letter to the

Plaintiff advising that his Class B license

would expire on June 26, 1986, and that, if

he wanted the license to be renewed, he

would be required to sign an application

form that had been enclosed with the letter,

and pay the application fee. The letter

also informed the Plaintiff that, if he

decided to discontinue his license, he was

20a

Lest aN Nae 6 OM Sie tradi Wes Aaihad ines edict a Haka Keates

obligated to notify APHIS by letter and to

license certificate for

return his

termination.

On June 3, 1986, the Plaintiff signed

the license application and transmitted it

by mail, along with a written request that

his license be changed from Class B dealer’s

license to a Class C exhibitor’s license.

The Plaintiff also enclosed the appropriate

application fee for a Class cC license.

Nevertheless, instead of receiving a Class

C license, the Plaintiff received a Class B

license from the APHIS.

On August 18, 1986, the Plaintiff wrote

to Eppele requesting information on

ultrasonic fly repelling devices, and

seeking a means to substitute a Class C

license for a Class B license which APHIS

had sent to hin.

On August 20, 1986, the Defendants

Donald W. Maas ("Maas"), John F. Kirchberg

21a

("Kirchberg"), and Dr. W. Scott Manning, all

of whom were employees of APHIS, conducted

an inspection of the Plaintiff’s premises at

the direction of Eppele.' The Report which

followed that inspection revealed new and

previously recurring deficiencies, as had

been noted during a prior inspection on

August 13, 1985 as they related to the

manner in which the Plaintiff was caring for

his animals and was operating his facility.

At the time of the most recent inspection,

Kirchberg returned the Plaintiff’s $10.00

application fee and requested that the

‘According to APHIS inspection records,

on August 20 and December 3, 4, 5 and 20,

1986, the Plaintiff held in confinement at

least 9 skunks, 5 wolves, 1 fox and 1

raccoon which, in the judgment of APHIS

personnel, were restricted in primary

enclosures under conditions that did not

comply with the Animal Welfare Act ("AWA")

or the minimum standards for animal care as

required by 9 C.F.R. Chapter 1, Subchapter

A, Part 3, Subpart F. The Plaintiff denies

that any ‘violations of the AWA, or of the

applicable regulations, occurred.

-22a

Serene eee et

Plaintiff return his Class B_ License

Certificate, which the Plaintiff refused to

do as he wished to remain licensed by the

USDA.

Shortly thereafter, the Plaintiff left

his home to travel to the State of Ohio,

where he stayed until the Spring of 1987.

While he was out-of-state, Stan Miller

("Miller") and his wife, who were friends of

the Plaintiff, assumed responsibility for

the care of the Plaintiff’s animals.

Apparently, the Millers were unable to

attend the animals with a greater frequency

then two times per week because of their own

employment activities, and they were

required to carry water from their home to

the Plaintiff’s property for the use of the

animals.*

On August 26, 1986, Eppele directed a

letter to the Plaintiff informing him that

23a

he was required to correct all of the

deficiencies that had been reported during

his last inspection, by October 5, 1986. In

response to the Plaintiff’s concern that he

would not be able to exhibit animals without

a Class C license, Eppele’s letter also

advised that the Plaintiff would be able to

exhibit animals with his current Class B

license.

At the direction of Eppele, Messrs.

Maas, Dennis Munson ("Munson") ,and Kirchberg

inspected the Plaintiff’s premises on

December 3, 1986. At that time, they found

that the door to the Plaintiff’s house had

been padlocked, and they observed no

evidence that anyone had been on the

@2puring the course of the Hearing in

this matter, the Plaintiff explained that

water was available on his property, but

that the Millers would have been required to

prime his water pump, which would freeze in

the winter, in order to draw water from his

well.

24a

property since at least one day earlier.

Their inspection report reflected numerous

deficiencies, including those that had been

previously noted on the August 20, 1986,

inspection report. A copy of the inspection

report was left attached to the door of the

Plaintiff’s house. In the "Recommendations"

section of the report, the inspectors wrote

as follows:

Note: Have not received license fee

for current year. License may be

canceled unless $5.00 license fee is

received by 12/15/86.

Mr. Benigni: If you do not wish to

keep your license, please return the

original license certificate to to

[sic] our St. Paul office.

The report was signed by Kirchberg, Maas and

Munson.

On December 4, 1986, Maas and Kirchberg

returned to the Plaintiff’s premises for a

follow-up inspection and in order to check

on the status of his animals. Once again,

they observed no evidence that anyone had

25a

been on the premises since their visit on

the previous day. The inspection report

indicated that the previous deficiencies

were still in existence and that one

additional deficiency was detected.

On December 5, 1986, Maas returned to

the Plaintiff’s premises, discerned no

evidence that anyone hac been there to care

for the animals, and he noted that the

previously reported deficiencies had not

been remedied.

On December 6 and 7, 1986, Miller fed

at least some of the Plaintiff’s animals and

placed burlap sacks, as a bedding material,

in some of the animal cages. Miller

observed numerous footprints around the farm

and in the sheds where the Plaintiff housed

his animals. Miller also found a note,

signed by the Defendant Maas, that had been

posted on the door to the Plaintiff’s house.

Within the following days, Maas and

26a

Kirchberg reported to Eppele that they

believed that an emergency condition existed

on the Plaintiff’s premises. Eppele

directed Maas to re-inspect the facilities

on December 10, 1986, and to take further

steps to ensure the safety of the animals

which were located there. Upon his

inspection, Maas found that someone had been

on the premises, had fed the skunks, and

placed burlap sacks in some of the skunk

cages, but had not corrected the noted

deficiencies. A further deficiency was also

discovered. Pursuant to Eppele’s

instructions, Maas made inquiries’ to

determine who had been caring for the

Plaintiff’s animals, and he learned that the

Millers were assuming that responsibility in

the Plaintiff’s absence. Maas spoke with

the Millers and was advised that the

Plaintiff had been out-of-state for several

27a

months, that the Millers were only able to

feed and water the animals once or twice per

week, and that they had been hauling water

to the animals from their own home.

On December 11, 1986, Miller returned

to the Plaintiff’s property and retrieved

the report that had been posted on the

Plaintiff’s door. While there, Miller

noticed a set of footprints in newly fallen

snow which lead from the Plaintiff’s front

door to an area near the Plaintiff’s well,

where he observed evidence that someone had

urinated there. On the basis of this

evidence, the Plaintiff believes that Maas,

who had posted the inspection report on the

Plaintiff’s door, had intentionally urinated

so as to contaminate the Plaintiff’s potable

water supply. Maas has vehemeritly denied

having performed any such act upon the

Plaintiff’s premises.*

28a

On February 1, 1987, the Plaintiff

learned about the APHIS inspections that had

occurred during the previous December, and

on February 10, 1987, the APHIS office

received a letter from the Plaintiff, dated

February 3, 1987, which was addressed to

Eppele. The letter accused APHIS officers

ef conducting unauthorized searches, of

falsifying inspection reports, and of

urinating in the Plaintiff’s well. The

swe note that the Affidavit of Miller,

while notarized, does not purport to express

Miller’s views as having been elicited

pursuant to an oath or affirmation. The

purpose of the notarization is quizzical. at

best. Moreover, the comments ot Miller were

"notarized" nearly two years after the

events, to which the comments were directed,

occurred.

Despite these limitations in the

recitations of Miller, and notwithstanding

the facts that Miller’s observations are

directly contradicted by the nearly

contemporaneous memorializations of Maas, we

accepted Miller’s statements as true for our

purposes here. Miener v. State of Missouri,

673 F.2d 969, 972 n.3 (8th Cir 1982), cert.

29a

letter also advised that the Plaintiff was

desirous of terminating and of returning his

license.

On February 10, 1987, Eppele responded

by letter and advised the Plaintiff that his

license had been terminated according to his

request of February 3, 1987, and that the

Plaintiff was to return his license to APHIS

immediately. The Plaintiff returned his

license to APHIS sometime between September

4, 1987 and September 29, 1987.

Upon these facts, the Defendants have

moved the Court for an Order that dismisses

this action pursuant to Rule 12(b)(1) and

(6), Federal Rules of Civil Procedure, or

for an award of Summary Judgment pursuant to

denied, 459 U.S. 909 and 916 (1982); Jackson

, 580 F.2d

302, 308 (8th Cir. 1979); cert. denied, 432

U.S. 1070 (1979); Buranen v. Hanna, 623 F.

Supp. 445,446 n.3 (D. Minn. 1985) ("On a

motion to dismiss, of course, the Court mu-

st accept plaintiff's allegations as true”)

30a

Rule 56, Federal Rules of Civil Procedure.*

III. Discussion

The crux of the Plaintiff’s Complaint

rests upon his contention that he has been

denied his constitutional right to be secure

in his home as a result of a series of

warrantless searches that were conducted by

the Defendants. Since the Defendants were,

at all times, acting under color of Federal

law, the Plaintiff has alleged the making of

a Bivens-type action. Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics,

‘seeking to take advantage of the final

sentence of Rule 12(b), Federal Rules of

Civil Procedure, the Defendants have

submitted materials outside the pleadings

for the Court’s consideration. The

Plaintiff has responded in kind with his own

documentary submissions. As the subsequent

sections of this Opinion shall detail, the

Court has concluded that it is without

jurisdiction over the subject matter of the

Plaintiff’s Complaint and, therefore, the

procedural and substantive prerequisites to

the granting of Summary Judgment need not be

further addressed.

3la

403 U.S. 388 (1971) (violation of the Fourth

Amendment’s prohibition against unreasonable

searches and seizures can give rise to an

action for damages even in the absence of an

express statutory authorization for the

suit. )?

Even if no Bivens claim were presented,

our examination of the Plaintiff’s

Complaint, with the indulgent construction

that the law requires, counsels a

determination of whether the Plaintiff’s

purported tort claims may properly be

asserted under the Federal Tort Claim Act

Dp & 4 liberally construed, the

Plaintiff’s Complaint could be understood as

asserting a claimed violation of his Fifth

Amendment right to be free from _ the

deprivation of his property rights without

just compensation. However, this Court does

not have jurisdiction to entertain a claim

for damages, in excess of $10,000, which is

based upon an unconstitutional taking

without just compensation. Cf.,

Gun South,

inc. v¥. Brady, 877 F.2d 858 (11th Cir.

1989); Myers v. United States, 323 F.2d 580

(9th Cir. 1963). The Plaintiff has alleged

328

("FTCA"). Title 28 U.S.C. § 267] et seq.

We examine each of these issues in turn.®

damages of $30,000.

Moreover, even if the Plaintiff’s

claim, as so construed, were properly before

this Court, the Plaintiff has not shown that

he has suffered any damage. Rather, he

points to his apprehension that his well may

be contaminated, but his water supply has

never been tested so as to determine if any

contamination has occurred. As a

consequence, any alleged interference with

the Plaintiff’s property, which purportedly

resulted from a senseless act of vandalism

has not been shown to be of such a character

or of such subsicantiality as would warrant

an award of just compensation. Richmond

Agency, 561 F.2d 1327 (9th Cir. 1977).

twe recognize that, logically, the

issues should be addressed in reverse order

for, if the Plaintiff has a right to

recovery under the Federal Tort Claims Act

("FTCA"), then he would have no actionable

Bivens claim. cCf., Schweiker v. Chilicky,

487 U.S. 412, 421-22 (1988) (Where Congress

has provided an equally effective

alternative remedy, resort to a Bivens

action is unavailing); Bush v. Lucas, 462

U.S. 367 (1983). Nevertheless, since the

Plaintiff has denied any interest in

pursuing an FTCA claim, we address his

Bivens action first as that is his primary

Claim for relief. Irrespective of a pro se

litigant’s rejection of an alternative claim

33a

The essential elements of a Biven-type

action, which the Plaintiff must

successfully plead and prove, are:

1. that the Defendants performed acts

or actions under color of federal law;

2. which resulted in the deprivation

of a right, privilege or immunity

guaranteed or preserved by the United

States Constitution; and,

es that produced damage to the

Plaintiff.

See, Parrattv. Taylor, 451 U.S. 527, 535

(1981), o/ruled on o/grounds, Daniels v.

Williams, 474 U.S. 327 (1986); Jenson v.

Qlson, 353 F.2d 825, 828 (8th Cir. 1965).

Notably, the Plaintiff’s Complaint only

asserts a claim against the Defendants in

their individual capacities.’

for relief, our obligation remains to

evaluate each of that litigant’s potential

avenues of recovery.

34a

"If the Plaintiff had asserted a Bivens

claim against the Defendants in their

official capacities, it would have been a

suit against the offices that they have held

and, as such, it would have been no

different than a suit against the Federal

government itself. See, j

, 491 U.S. 58 (1989).

As a general rule, therefore, a suit against

a public officer in his official capacity is

considered a suit against the government if

the Judgment in the action would invade the

public treasury, would interfere with the

public administration, or would restrain the

government from acting or would compel it to

act. See,

Pennhurst State “School and

Hospital v. Halderman, 465 U.S. 89, 101 n.11

(1984); see also, Kentucky v. Graham, 473

U.S. 159 (1985).

‘

While there can be no doubt but that

the Defendants were exercising their powers

under the AWA and related Regulations, a

suit against them in their official

capacities would be barred. For, as we have

noted, an action against Federal officers in

the official capacity is treated as a suit

against the United States. See, Kentucky v.

Graham, supra. The United States enjoys

immunity from civil suits, except where it

has specifically waived that immunity.

Congress has not consented to Bivens-type

suits against the United States. See, Keene

, 700 F.2d 836,

845 n. 13 (2d Cir 1983), cert. denied, 464

U.S. 864 (1983); ;

581 F.2d 390, 393 (4th Cir. 1978), cert.

denied, 439 U.S. 1003 (1983); also cf.,

Laswell _v. Brown, 683 F.2d 261 (8th Cir.

35a

Our analysis turns to the elements of

the Plaintiff’s Biven-type claim. Under the

circumstances of this case, we need only

address the second element of proof in his

Bivens action, as the Defendants have

conceded that their activities, of which the

Plaintiff has complained, were performed

under color of Federal Law and, in view of

our determination that no constitutional

violations have occurred, a discussion of

the Plaintiff’s claimed damages is

unnecessary .®

1982), cert. denied, 459 U.S. 1210 (1982).

Accordingly, even if the Plaintiff had

alleged a Bivens action against the

Defendants in their official capacities, the

action would be barred as this Court would

lack the subject matter jurisdiction to

entertain the suit.

Swe would note in passing that, at

least ostensibly, the more pressing claim

for damages is that which is related to the

asserted contamination of the Plaintiff’s

water supply. Upon closer. examination,

however, those damages would appear to be

conjectural at best. The Plaintiff never

had his potable water supply examined for

36a

1. Deprivation of a Constitutional

There is, and can be, no dispute that

the inspections in question did, in fact,

occur and that they were searches within the

meaning of the Fourth Amendment to the

United States Constitution. See, Marshall

Vv. Barlow’s, Inc., 436 U.S. 307 (1978)

(inspection of business premises implicates

the Fourth Amendment).® Consequently, the

the presence of coliform bacteria, or for

any other indicia of contamination, and his

assertion of an injury relates solely to his

anxiety of using his well water without

purification. Of course, any anxiety of

that sort could have been resolved through

the performance of routine testing

techniques. In the absence of any proof

that his well water was contaminated -- and

the passage of time has made such proof

extremely problematic -- there can be no

cognizable claim for damages in that

respect.

%Although the evidence is not

compelling, for our purposes we assume that

the searches conducted by the Defendants

invaded areas of the Plaintiff’s property

37a

issue before the Court resolves to whether

a reasonable basis for the inspections

existed, at the time that the inspections

occurred, so as to satisfy the exacting

requirements of the Fourth Amendment’s

guarantees.

The Fourth Amendment, with its

proscription against unreasonable searches

and seizures, is intended to protect the

that he, subjectively, had an expectation

would remain private. The protections

afforded by the Fourth Amendment extend only

to areas where there is a legitimate

expectation of privacy,

States, 389 U.S. 347 (1967), which includes

houses, even if only occasionally occupied,

cf., Robertson v. United States, 165 F.2d

752, 754-55 (6th Cir. 1948), and curtilage,

which is the area of domestic’ use

immediately surrounding a dwelling and

usually fenced in with the dwelling.

iS, 328 F.2d 361, 363

(5th Cir. 1964), cert. denied, 379 U.S. 850

(1964). A more fundamental approach to what

is protected curtilage considers the

proximity or the annexation of that area to

the dwelling, its inclusion within the

general enclosure surrounding the dwelling,

and its use and enjoyment as an adjunct to

the domestic economy of the family. Care v.

38a

' iii

sanctity of a person’s home and the

privacies of one’s life from searches that

are conducted under the aegis of an

indiscriminate, general authority. See,

Warden v. Hayden, 387 U.S. 294, 301 (1967).

In this respect, the Amendment’s purpose is

to deter the undesirable and the

unreasonable conduct of government officers.

id. Generally, the facts of each case will

determine whether the conduct of government

, 231 F.2d 22, 25 (10th Cir.

United States

1956) (Mellot, J.) cert. denied, 351 U.S.

932; , 363 F.2d

599, 603 (8th Cir. 1967).

The Plaintiff admits that his house is

85 feet from the sheds in which the animals

are kept and where the inspections occurred,

but his averments are somewhat inconsistent

as to whether the buildings had been used

for the housing of pets or for animals which

served as a adjunct to his staple foods. In

any event, the areas searched on the

Plaintiff’s property appear to fall within

the definition of curtilage, and are,

therefore, reasonably expected to be

private, although a persuasive argument to

the contrary could well be made.

39a

officers has been unreasonable. Ker v.

California, 374 U.S. a3, 33 (1963).

Warrantless searches are presumptively

unreasonable, tz v. Uni t , 389

U.S. 347, 357 (1967), even when applied to

commercial premises, Camara v. Municipal

Court, 387 U.S. 523, 543 (1967), and,

normally, it is the burden of the government

to demonstrate that a warrantless search is

otherwise reasonable under the Fourth

Amendment. ite tates v ~ oon

U.S. 48, 51 (1951).

The privacy interests which underlie

the constitutional privilege to be free from

unreasonable searches are, understandably,

highly revered by this Plaintiff. He has

assured the Court that the "Constitution of

the United States of America * * * has been

pinned to [his] wall for 20 years -- opened

to Amendment Four." Likewise, the Plaintiff

assures that the driveway to his home has

40a

been blocked for the past 15 years with a

placard which instructs: "ABSOLUTELY NO

ADMITTANCE BEYOND THIS’~ POINT." The

Plaintiff’s unwavering allegiance to the

privacy of his household and his ardent

insistence, premised upon his construction

of the language of the Fourth Amendment,

that the agents of the Federal Government

must recognize and respect his right to

untrammeled solitude, are beyond serious

question.’ We do not quarrel with the

veneration that the Plaintiff holds for his

Fourth Amendment rights, only with his

inference that those rights extend, without

so much as the slightest qualifications, to

most any interest that the Plaintiff should

choose to protect. Even in the most

While the Court respects the adamancy

of the Plaintiff’s insistence upon his

constitutional rights, that adamancy is

frequently vocalized in a derisory or

contemptuous and, on occasion, in a

4Yia

individualistically oriented of societies,

on one occasion or another, individualists

will have to interact, and therein lies the

rub. Here, the interests of an individual

have collided with society’s interest in

regulating the nurture and exhibition of

animals. Which of these conflicting forces

will prove to be the irresistible one is

dependent upon historic doctrines of

Constitutional Law.

Although prodigious in its protective

breadth, the safeguards of the Fourth

Amendment, including its insistence upon the

needlessly vulgar way. For disagreeing with

the Plaintiff on a myriad of subjects,

including his interpretation of the Fourth

Amendment, the Defendants have been

castigated with language that is intemperate

and demeaning, at best. With an indulgent

eye, the Court has viewed these virulent

expressions, as they have been exhaustively

repeated in his written communications with

APHIS, as a symbolic, if not hyperbolic,

pronouncement of the Plaintiff’s keen sense

of individualisn.

42a

use of search warrants, are not without

limits. Exceptions to the search warrant

requirements of the Fourth Amendment have

long been recognized. As but one example,

warrants are not essential to the search of

pervasively regulated businesses, or of

closely regulated industries which have long

been subjected to exacting supervision and

inspection. Marshall _v. Barlow’s, Inc.,

supra at 313. The industries which have

been included within this exception have had

such a prolonged history of government

oversight, or have been so impacted by

licensing and regulatory requirements, that

any person who should choose to enter such

a business would be well aware of the

regulatory restrictions and would, in

effect, consent to the same.'’ Id. When a

“Although the duration of the

regulatory scheme is an important factor in

determining whether a warrantless inspection

43a

legislature "has reasonably determined that

warrantless searches are necessary to

further a regulatory scheme and the * * *

regulatory presence is sufficiently

comprehensive and defined that the owner of

commercial property cannot help but be aware

that his property will be subject to

periodic inspections undertaken for specific

purposes" a warrant may be required by the

Constitution. Donovan v. Dewey, 452 U.S.

594, 600 (1981) (warrantless inspection made

pursuant to the Federal Mine Safety and

Health Act); see also, United States v.

is permissible, the Supreme Court has

cautioned that absurd results would occur if

the length of regulation were the only

pertinent criterion. New York v. Buraer,

482 U.S.69) n.12(1987), quoting Donovan v.Dew-

ey, 452 U.S.594,606 (1981). we regard both

the length of time that the AWA has been in

effect, and the carefully structured

inspection program that has been created

pursuant to its terms, to overcome any

reluctance to treat the nurture and the

exhibition of animals as a closely regulated

industry. Cf., j

Cox v. United States Dept.

of Agriculture, 925 F.2d 1102 (8th Cir.

Liha

Biswell, 406 U.S. 311 (1972) (warrantless

inspection of premises of a pawn shop

operator, who was federally licensed to sell

sporting weaponsunder the Gun Control Act of

1968); Wyman v. James, 400 U.S. 309 (1971);

New York v. Burger, 482 U.S. 691 (1987)

(warrantless inspection of an automobile

junkyard).

Where the privacy interests of the

owner of a business are weakened and the

governmental interests in regulating that

particular business are, concomitantly,

enhanced, a warrantless inspection of the

owner’s business premises may well be

reasonable within the meaning of the Fourth

Amendment. New York v. Burger, supra at

702. However, the warrantless inspection of

1991), (the court of Appeals for the Eighth

Circuit affirmed the imposition of a fine

that was assessed when a licensee under the

AWA refused an unannounced inspection by

APHIS personnel).

45a

a pervasively regulated business will be

deemed to be reasonably only so long as

three criteria are satisfied. Id. First,

there must be a "substantial" governmental

interest that informs the regulatory scheme

pursuant to which the inspection is made."

Second, the warrantless inspections must be

necessary in order to further the regulatory

scheme. Jd. For example, where forcing

inspectors to obtain a warrant before every

inspection might alert the owners or the

operators of the business to an impending

inspection, thereby frustrating the purposes

See, Donovan v. Dewey, supra at 602,

("substantial federal interest in improving

the health and safety conditions in the

Nation’s underground and surface mines") ;

United States v. Biswell, 406 U.S. 311, 315

(1972) (regulation of firearms is "of

central importance to federal efforts to

prevent violent crime and to assist the

States in regulating the firearms traffic

within their boniers");

, 9OF-O.8. -32, 35

(1970) (Federal interest "in protecting the

revenue against various types of fraud.

46a

of the legislation which authorizes that

inspection, warrantless searches may be

necessary. Donovan v. Dewey, supra at 603.

Finally, the statute’s inspection progran,

in terms of the certainty and regularity of

its application, must provide a

constitutionally adequate substitute for a

warrant. New York v. Burger, supra at 703.

As stated in the Burger decision:

In other words, the regulatory statute

must perform the two basic functions

of a warrant: it must advise the

owner of the commercial premises that

the search is being made pursuant to

the law and has a properly defined

scope, and it must limit’ the

discretion of the inspecting officers.

See Marshall v. Barlow’s, Inc., 436

U.S., at 323; see also id., at 332

(Stevens, J., dissenting). To perform

this first function, the statute must

be "sufficiently comprehensive and

defined that the owner of commercial

property cannot help but be aware that

his property will be subject to

periodic inspections undertaken for

specific purposes." Donovan v. Dewey,

452 U.S., at 600. In addition, in

defining how a _ statute limits the

discretion of the inspectors, we have

observed that it must be “carefully

limited in time, place and scope."

Id. at 703.

47a

In applying these criteria to the

circumstances before the Court, we conclude

that the warrantless searches conducted by

the Defendants were reasonable and not

violative of the protections of the Fourth

Amendment.

a. Substantial Governmental Interest.

The statutory scheme, under which the

Defendants’ authority to inspect arose, was

promulgated by the AWA, Title 7 U.S.c.

§2131, et seq., which was first enacted in

1966. Section 2131 expresses the

Congressional policies which fostered the

AWA, and which were intended, at least in

part, "to insure that animals intended * *

* for exhibition purposes or for use as pets

are provided humane care and treatment."

The Statement of Policy clearly reflects the

substantial interest that Congress extended

to the regulation of animals held for

exhibition or for sale as pets, by expressly

4ka

characterizing such regulation as being

"essential." Id. Although the existence of

a substantial governmental interest, in

regulating animals for exhibition or for

sale as pets, has been established, there

must also be a showing that such an interest

will be furthered by a regulatory scheme

which includes inspections. This, too, has

clearly been demonstrated by the express

terms of the AWA.

Title 7 U.S.C. §2146(a) provides in

pertinent part:

The Secretary shall make such

investigations or inspections as he

deems necessary to determine whether

any dealer [for] exhibitor * * * has

violated or is violating any provision

of this chapter or any regulation or

standard thereunder * * *,

The Regulations which created the inspection

regimen, that the Secretary of Agriculture

has determined was essential to further the

purposes of the AWA, are codified at 9

40a

C.F.R. Chapter 1, Part 2, Subpart A. These

Regulations verify that inspections of the

facilities, which are intended for uses

covered by the Act, are necessary to

ascertain whether the applicant for a

Federal license, and Federal licenses, are

in compliance with the standards and

regulations that have been promulgated under

the Act. See, 9 C.F.R. §§2.3 and 2.126.

Accordingly, inspections are critical to the

continued enforcement of the AWA’s

regulatory scheme, and the first criterion

of New York v. Burger is satisfied.

b. Warrantless Inspections _ Are

Necessary to a ___ Requlatory

Purpose.

As with the Donovan case, warrantless

inspections are undoubtedly necessary under

the AWA. Any forewarning of an impending

inspection would frustrate the purposes of

the Act by allowing operators to remove

animals evidencing signs of mistreatment or

50a

to transiently correct and deficiencies in

anticipation of a scheduled inspection,

solely for the purposes of passing that

inspection. Donovan v. Dewey, supra at 603;

United States v. Biswell, supra at 316

("({I]f inspection is to be effective and

serve as a credible deterrent, unannounced,

even frequent, inspections are essential.")

Given the statement of Congressional

purpose, the prerequisite of a warrant could

easily frustrate inspection and, therefore,

the second criterion of New York v. Burger

is fulfilled. Cox v. United States Dept. of

Agriculture, 925 F.2d 1102, 1107 (8th Cir.

1991) (“Refusal to allow inspection is

serious because it prevents detection of AWA

violations."), cert. denied, 112 S.Ct. 178

(1991).

c. Certainty and Regularity of the

inspection Program.

As set out in New York v. Burger, the

S5la

regulatory scheme must advise the owner that

any inspection that is to be undertaken will

be accomplished according to the statutory

standards and within a properly defined

scope. In other words, the regulatory

program must be sufficiently comprehensive

and defined that the owner of the property

cannot help but be aware that his property

will be subject to periodic inspections

which will be conducted for specific

purposes. Moreover, the regulatory process

must effectively constrain the discretion of

the inspecting officers by delimiting the

time, place and scope of the inspection.

Id. at 702-03.

In this respect, the AWA explicitly

authorizes administrative investigations and

inspections. Title 7 U.S.C. §2146(a)

provides, in relevant part:

The Secretary shall make such

investigations or inspections as he

52a

deems necessary to determine whether

any dealer [or] exhibitor * * * has

violated or is violating any provision

of [the Act] or any regulation or

standard issued [funder it], and for

such purposes, the Secretary shall, at

all reasonable times, have access to

the places of business and the

facilities, animals, and those records

required to be kept * * *."

In furtherance of these objectives, the

Regulations promulgated by the Secretary

under the AWA require that any person

operating or desiring to operate as a

dealer, as defined by the Act," is

Spitle 7 U.S.C. §2132(f) provides, in

part:

"The term ‘dealer’ means any person

who, in commerce, for compensation or

profit, delivers for transportation,

or transports, except as a carrier,

buys, sells, or negotiates the

purchase or sale of, (1) any dog or

other animal whether alive or dead for

research, teaching, exhibition, or use

as a pet * * *,"

The Plaintiff’s past licensure and his most

recent license application reveal his intent

to be a dealer or an exhibitor under the

AWA. Accordingly, he was subject to the

constraints of the regulatory program

established by the AWA.

53a

required to have a valid license, and that

each dealer must comply with the Regulations

set forth in Part 2 and the Standards set

forth in Part 3 of Subchapter A. 9 C.F.R.

§§ 2.1(a), 2.-100(a). The same Regulations

provide that each new applicant for a

license, and each applicant for a renewal of

a license, will receive and must acknowledge

the receipt of a copy of the applicable

Regulations, and must agree to comply with

them. 9 C.F.R. §2.2.

The Regulations, as they existed at the

time of the subject inspections, expressly

provided as follows:

Each applicant must demonstrate that

his premises and any facilities or

equipment used in his business comply

with the standards set forth in Part 3

of this subchapter. Upon request by

the Veterinarian in Charge, the

applicant must make his premises,

facilities, and equipment available at

a time or times mutually agreeable to

said applicant and Veterinary Services

representative for the purposes of

ascertaining compliance with said

standards. If the applicant’s

54a

premises, facilities, or equipment do

not meet the requirements of the

standards, the applicant will be

advised of existing deficiencies and

the corrective measures that must be

taken and completed to bring such

premises, facilities, and equipment

into compliance with the standards.

9 Fn FF § 2.3.

Each dealer, exhibitor, operator of an

auction sale, or research facility

shall, during ordinary business hours,

permit Veterinary Services

representatives, or other Federal

officers or employees designated by

the Secretary, to enter his place of

business to examine records required

to be kept by the Act and the

regulations in this part, and to make

copies of such records, and permit

Veterinary Services representatives to

enter his place of business, to

inspect such facilities, property and

animals as such representatives

consider necessary to enforce the

provisions of the Act, the regulations

and the standards in this subchapter.

The use of a room, table, or other

facilities necessary for the proper

examination of such records and

inspection of such property or animals

shall be extended to such authorized

representatives of the Secretary by

the dealer, exhibitor, operator of an

auction sale, or research facility,

his agents and employees.

3 FF F §2.126.

55a

As the foregoing provisions make clear, the

regulatory scheme of the AWA is sufficiently

comprehensive and defined that an applicant

for a license, or for a renewal of a

licensee, could not reasonably avoid being

aware that specific segments of his property

and of his business records would be open to

periodic inspections in order to determine

his compliance with the AWA. The time,

place and the scope of the inspections are

clearly defined, and the Regulations assure

that those applying for a license, or for a

license renewal, are aware of the potential

inspections by acknowledging and agreeing to

the regulatory provisions. 9 C.F.-R.

§2.2." Therefore, the third criterion of

New York v. Burger is met. See, e.g.,

Western States Cattle Co., Inc. v. Edwards,

895 F.2d 438, 442 and n. 4 (8th Cir. 1990)

“section 2.2 provided, at the time of

the inspections that the Plaintiff contests,

56a

(recognizing that notice of a search can be

provided by receipt of the agency’s

regulations which advise of a susceptibility

to unannounced searches).

The criteria for a reasonable, but

warrantless administrative inspection having

been satisfied, we conclude that the

searches of the Plaintiff’s premises, that

had been conducted by the Defendants, were

valid and did not violate” the Plaintiff’s

constitutional rights."

as follows:

Acknowledgement of standards.

A copy of the applicable standards

will be supplied to the applicant with

each request for an application for a

license, and the applicant’. shall

acknowledge receipt of such standards

and agree to comply with them by

signing the application form provided

for such purpose by Veterinary

Services.

Stn view of our ruling that the

Plaintiff’s constitutional rights were not

violated, we need not reach the issue of the

Defendants’ qualified immunity. We do note,

57a

however, the substantial probability that

the doctrine of qualified immunity would

shield these Defendants from any liability

arising from their inspections of the

Plaintiff’s animal business. Anderson v.

Creighton, 483 U.S. 635 (1987); New York v.

Burger, supra; Blair v. Freeman, 483 U.S.

10:4 (1987; Blair v. Freeman, 862 F.2d 1330,

1331-32 (8th Cir. 1989) (applying the

holdings in Anderson and Burger to a

warrantless search conducted in 1982 under

a regulatory scheme similar to that

presented by the AWA in 1986).

‘we reject the Plaintiff’s argument

that he was insulted from any APHIS

inspection because his license application

fee had been returned to him and, under his

construction of the regulations, he was

without a license. The provisions of 9

C.F.R. §2.5(b), upon which the Plaintiff

relies, are not supportive of his argument.

While the regulation may be read to reflect

that an "automatic termination" of a license

will befall the applicant who does not,

within 60 days of receiving notice of his

failure to pay the application fee, refuses

to pay the fee, the Plaintiff never received

such notice. In August of 1986, when the

APHIS representatives returned his

application fee, they also requested that he

return his license. They did not terminate

his license, nor did he return his license,

because he wanted to retain USDA licensure.

Although the APHIS personnel attempted to

notify the Plaintiff that his license would

terminate if he did not pay his application

fee by December 15, 1986, that notice was

posted on the door to his home as the

Plaintiff’s whereabouts could not be

determined, other than to the extent of the

58a

Miller’s belief that he was in Ohio. No

inspections occurred after December 15,

1986.

On this point, we find particularly

instructive the Plaintiff’s comments in his

letter to Eppele of February 3, 1987:

It should have been crystal clear to

you that I have severed all

connections with your agency when I

did not send you the five dollar

license fee after you returned ny

overpayment money order of ten dollars

which you had held for months instead

of depositing it as a _e reputable

federal agency would have done. Since

you did not have enough sense to

realize that, this then is a formal

notification: I have severed any and

all association with your disgraceful

agency, U.S.D.A.-A.P.H.I.S.-V.S. Void

my license immediately.

In response, by letter dated February 10,

1987, the Plaintiff’s license was

terminated. By his own tacit admission, the

Plaintiff had a valid USDA license at the

time of the subject inspections, and the

record before the Court is devoid of any

showing that the APHIS personnel were aware

of any intent, on the Plaintiff’s part, to

terminate his USDA license prior to their

receipt of his letter of February 3.

We are mindful that the APHIS

representatives ultimately concluded that

the Plaintiff was not required to have a

license as he had not been selling animals for

some period of time. Nevertheless, it was

59a

B. The Plaintiff’s FTCA Claim.

The FTCA is a limited waiver of

sovereign immunity, ite State >

Orleans, 425 U.S. 807, 813 (1976), Sy which

the United States has agreed to assume

liability for tort claims in the same manner

and to the same extent as a private

individual would be liable under like

circumstances. Within the confines of the

FTCA, the existence of a legally

recognizable tort is determined by

application of the law of the State in which

the tort is alleged to have occurred. Title

28 U.S.C. §2679(b)(2)(A).

Here, the Plaintiff has asserted that

the Defendants are liable for damages, by

reason of their violation of the Minnesota

the Plaintiff who applied for licensure and

it was he who, in his application of June 3,

1986, acknowledged receipt of and agreed to

comply "with all the regulations and

standards contained in 9 C.F.R. Chapter I,

Subchapter A."

60a

Statutes which relate to trespass, Minn.

Stat. §609.60, to damage to property, Minn.

Stat. §609.687, subd. a), and to the

infliction of emotional distress, as well as

a claimed violation of Article I, Section

10, of the Minnesota Constitution. The

statutes cited by the Plaintiff, however,

are criminal statutes which do not create

private causes of action. Cf., Jeffers v.

Convoy Co., 636 F. Supp. 1337 (D. Minn.

1986); see also, H.J., Inc. v. Northwestern

Bell _ Corp., 420 N.W.2d 673 (Minn. App.

1988). Nevertheless, trespass is a well-

recognized common law tort, see, e.g.,

Martin v. Smith, 214 Minn. 9, 7 N.W.2d 481

(1942), and claims for damages, arising from

the infliction of mental distress, are now

actionable in Minnesota. See, e.g., Leaon

v. Washington County, 397 N.W.2d 867 (Minn.

1986). The claimed damage to- the

Plaintiff’s property could be asserted on

6la

either negligence or trespass grounds, and

the purported adulteration of documents

would most closely be akin to fraud, while

the Plaintiff’s allegation that Minnesota’s

Constitution has been violated resembles a

claim for an invasion of privacy. Under

such an expansive view, the Plaintiff’s

claims assert tort causes of action which

may be asserted under the FTCA. See, Title

8 U.S.C. 671, et seq.

The Plaintiff does not assert

jurisdiction based upon the FTCA and, during

the Hearing on these Motions, he expressly

denied that he was pursuing any remedy under

the FTCA. Nevertheless, the FTCA is the

exclusive remedy for tort claims against an

employee of the United States Government for

any acts or omissions of that employee which

occurred during the course and scope of the

employee’s office or employment. Title 28

Y.$.C. §2679(b)(1).

62a

Section 2679(d)(2) provides the

procedural mechanism by which the "scope of

employment" determination is made:

Upon certification by the Attorney

General that the defendant employee

was acting within the scope of his

office or employment at the time of

the incident out of which the claim

arose, any civil action or proceeding

commenced upon such a claim * * *

shall be deemed an action or

proceeding brought against the United

States under the provisions of this

title * * * and the United States

Shall be substituted as a party

defendant.

The United States Attorney for this

District, as the disignee of the Attorney

General, has certified that the Defendants’

actions, here complained of, occurred while

they were acting within the scope of their

employment." This certification is

conclusive for removal purposes only, S J

W chv tinen, 913 F.2d 1538 (11th

“See Docket entry No. 16 in the

Clerk’s file.

63a

Cir. 1990), opinion amended by 924 F.2d 1555

(llth Cir. 1991), cert. denied, 112 S.Ct. 62

(1991), and it is subject to de novo review

by the District Court once removal from the

State Court has been accomplished. Brown v.

Armstrong, 949 F.2d 1007, 1011 (8th Cir.

1991); Meridian v. United States, 939 F.2d

740 (9th Cir. 1991); ick v. in,

931 F.2d 1209 (7th Cir. 1991), cert. denied,

112 S.Ct. 200 (1991); Nadler v. Mann, 731 F.

Supp. 493 (S.D. Fla. 1990), aff’d. in part,

rev’d in part, on o/grounds, 951 F.2d 301

(llth Cir. 1992).

Even through it is subject to de novo

review, the certification by the United

States Attorney constitutes prima facie

evidence that the Defendants were acting

within the scope of their employment, Brown

v. Armstrong, supra, and the Plaintiff has

the burden of presenting specific facts

which demonstrate that the conduct of which

64a

he complains occurred outside the scope of

employment. See Nadler _v. Mann, 951 F.2d

301, 304 n.5 (11th Cir. 1992); Hamrick v.

Franklin, supra. In the present case, the

Plaintiff has wholly failed to do so.

In his Supplemental Memorandum, which

was submitted after the Hearing upon the

Court’s invitation, the Plaintiff has

contended that sufficient facts have been

presented to establish that the Defendants

have falsified documents, and that such

falsification is proof that the Defendants

acted outside the scope of their employment.

It is State law, however, which sets the

boundaries for the "scope of employment"

determination, cf., Brown v. Armstrong,

supra at 1012, and in Minnesota, liability

for acts committed by employees within the

scope of their employment extends’ to

willful, wanton, malicious or fraudulent

acts, as well as to those which are the

65a

product of negligence. See, e.g., Semrad v.

Edina Realty, Inc., 470 N.W.2d 135, 143

(Minn. App. 1991), aff’d. in part, rev’d.

in part, on o/grounds, --- N.W.2d ---, 1992

WL 354, 942 (Minn. December 4, 1992); Opatz

v. John G. Kinnard and Co., Inc., 454 N.W.

471, 473-74 (Minn. App. 1990); Marston v.

ea i Clinic

Neurology, Ltd., 329 N.W.2d 306, 309-11

(Minn. 1983); ev. j ’

297 Minn. 399, 403-04, 211 N.W.2d 783, 785

(1973); Manion v. Jewel Tea Co., 135 Minn.

—— i. ee

250, 160 N.W. 767 (1916). Roemer Vv,

Jacob Schmidt Brewing Co,, 132 Minn.

399, 157 N.W. 640 (1916). Consequently, the

Plaintiff’s conclusory allegations of bad

faith and fraud are insufficient to take the

Defendants’ actions outside the scope of

their employment. See, Brown v. Armstrong,

supra at 1011; Nelson v. Nelson, 282 Minn.

487, 166 N.W.2d 70 (1969) (substantial

64a

deviation from employer’s business

required).

The Plaintiff has also asserted that

the alleged urination near his well was an

act performed outside the scope of Maas’

employment, but such an assertion also fails

to meet the applicable test. An employee’s

deviations from the employer’s business,

which are only slight or incidental, see,

Nelson v. Nelson, supra, or which were taken

for the employee’s personal comfort, will

not remove those activities from the scope

of employment. Edgewater Motels, Inc. v.

Gatzke, 277 N.W.2d 11 (1979); Reliance Ins.

Co. v. Stack, 289 N.W.2d 71 (1979). We

hasten to add that we do not condone the

conduct complained of, if it did occur; we

only note that, under the laws of the State

of Minnesota, such conduct is not outside

the scope of employment, absent other

factors which have not been demonstrated to

67a

have occurred here. Thus, the United States

is the proper Defendant with respect to the

Plaintiff’s tort claims, and the exclusive

remedy for asserting those claims is under

the FTCA.

Even if the FTCA claim had been

properly paid, we believe nonetheless, that

the claim would be absolutely barred. Title

28 U.S.C. § 2679(d)(4) provides as follows:

Upon certification, any action or

proceeding subject to paragraph (1),

(2) or (3) shall proceed in the same

manner as any action against the

United States filed pursuant’ to

section 1346(b) of this title and

shall be subject to the same

limitations and exceptions applicable

to those actions.

One of the referenced limitations is

contained in Title 28 U.S.C. §2675(a), which

requires, as a jurisdictional prerequisite,

that any claim brought under the FTCA first

be presented to the appropriate federal

agency and be finally denied by that agency.

68a

Se ca tt i et pe neti

It is undisputed that the Plaintiff has

failed to present his tort claims to the

USDA and, even if the Court were to presume

that the Plaintiff’s letter of February 3,

1987, was intended to be a notice to the

USDA of a tort claim, the letter would be

patently insufficient. Nowhere in the

letter does the Plaintiff assert a claim

against the United States Government, nor

does the letter request any monetary

damages. See, Title 28 U.S.C. §2675(a);

Montoya v. United States, 841 F.2d 102 (5th

Cir. 1988). Since more than two years have

elapsed since the Plaintiff’s tort causes of

action accrued, his opportunity to present

his claims to the USDA is time barred.

Title 28 U.S.C. §2401(b). The Plaintiff’s

failure to assert his tort claims within the

two-year statutory period mandates a finding

that the Plaintiff has failed to exhaust his

administrative remedies. Therefore, this

69a

Court lacks subject matter jurisdiction over

the Plaintiff’s tort claims, see, Title 28

U.S.C. §2675(a), and the Defendants are

entitled to Judgment as a matter of law on

those claims.

The Court having no jurisdiction over

the Plaintiff’s claims whether they arise

under either the Bivens doctrine or the

FTCA, the Complaint of the Plaintiff should

be dismissed for want of subject matter

jurisdiction. Rule 12(b)(1), Federal Rules

Civil E

WHEREFORE, it is --

RECOMMENDED:

That the Court enter an Order GRANTING

the Defendants’ Motion to Dismiss [Docket

Entry Nos. 8 and 13], and DISMISSING the

Plaintiff’s Complaint for want of subject

matter jurisdiction.

70a

Raymond L. Erickson

UNITED STATES MAGISTRATE JUDGE

NOTICE

Pursuant to Rule 6(a), Federal Rules of

Civil Procedure, D. Minn. LR1.1(f), and D.

Minn LR72.1(c)(2), any party may object to

this Report and Recommendation by filing

with the Clerk of Court, and by serving upon

all parties by no later than January 20,

1993, a writing which specifically

identifies those portions of the Report to

which objections are made and the bases of

those objections. Failure to comply with

this procedure shall operate as a forfeiture

of the objecting party’s right to seek

review in the Court of Appeals.

if the consideration of the objections

requires a review of a transcript of a

7la

Hearing, then the party making’ the

objections shall timely order and file a

complete transcript of that Hearing by no

later than January 20, 1993, unless all

interested parties stipulate that’ the

District Court is not required by Title 28

U.S.C. §636 to review the transcript in

order to resolve all of the objections made.

72a

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

Kenneth S. Benigni,

Plaintiff,

Vv.

Civil No. 5-91-183

Donald W. Maas, John F.

Kirchberg, Dennis Munson, ORDER

and P.M. Eppele,

Defendants.

Benigni moves the Court, under Fed. R.

Civ. P. 52(b) and 59(a) & (e), to vacate or

amend the Court’s Order of February 22, 1993

dismissing Benigni’s Complaint. Benigni

bases his request on arguments previously

rejected by the Court, on regulations no in

effect at the time of the relevant events,

and on his affidavit containing a hearsay

restatement of a conversation he had with a

former U.S.D.A. employee. The Court will

not reconsider arguments it has already

73a

rejected and the regulations Benigni cites

are irrelevant. As to the "newly discovered

evidence" in the affidavit, it consists

mostly of hearsay legal conclusions.

Moreover, Benigni does not explain why he

could not have obtained this "evidence"

earlier.

Accordingly, IT IS HEREBY ORDERED THAT

Benigni’s motion to vacate or amend the

February 22, 1993 Order is DENIED.

Dated: March 28, 1993.

RICHARD H. KYLE, Judge

United States District Court

Tha

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 93-2134MND

Order Denying

Petition for

Rehearing and

Suggestion for

Rehearing

En Banc

Kenneth S. Benigni,

Appellant,

vs.

Donald W. Maas; et al.,

+ + + + + * He HF F

Appellees.

The suggestion for rehearing en banc is

denied. The petition for rehearing by the

panel is also denied.

January 21, 1994

Order Entered at the Direction of the Court:

Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

75a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.