Fabrizius v. United States Department of Agriculture

129 F.4th 1226

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 24, 2025
• Docket: 23-9570
• Status: Published

Opinion

Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 1

FILED PUBLISH United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS February 24, 2025 FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court

JASON FABRIZIUS; FABRIZIUS LIVESTOCK LLC,

Petitioners,

v. No. 23-9570

UNITED STATES DEPARTMENT OF AGRICULTURE,

Respondent. _________________________________

Petition for Review of an Order from the Department of Agriculture (Department No. 21-J-0062) _________________________________

Thomas D. Grant, Grant and Associates, P.C., Greeley, Colorado, for Petitioners.

Kevin J. Kennedy, U.S. Department of Justice, Washington, DC, Attorney, Appellate Staff (Brian M. Boynton, Principal Deputy Assistant Attorney, and Mark B. Stern, Attorney, Appellate Staff, U.S. Department of Justice, Washington, DC, and Matthew W. Walton, Attorney Advisor, Danielle Park, and John V. Rodriguez, Trial Attorneys, Department of Agriculture, Washington, DC, with him on the brief), for Respondent. _________________________________

Before TYMKOVICH, McHUGH, and ROSSMAN, Circuit Judges. _________________________________

ROSSMAN, Circuit Judge. _________________________________ Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 2

Petitioners Jason Fabrizius and Fabrizius Livestock LLC (Fabrizius

Livestock) seek this court’s review of a May 30, 2023 order by a United

States Department of Agriculture (USDA) Judicial Officer. That order

denied an appeal of two USDA Administrative Law Judge (ALJ) orders: one

finding Fabrizius Livestock is among the “persons responsible” for ensuring

animals transported interstate have certain required documentation, and

one issuing a $210,000 fine against the company. Exercising jurisdiction

under 7 U.S.C. § 8313(b)(4)(A), we deny the petition for review.

I1

A

Mr. Fabrizius is an experienced horse dealer. He is the sole owner of

Fabrizius Livestock, 2 a Colorado corporation that buys and sells horses,

mostly intended for slaughter. The corporation kept many of the horses it

sold in a “kill pen,” an enclosure that left the animals particularly

1 We mostly take the facts from the Judicial Officer order on review,

with some elaboration from the ALJ orders and other uncontested parts of the record. 2 The only entity USDA fined is “Fabrizius Livestock,” with no “LLC.”

The petitioning parties, in contrast, are “Jason Fabrizius” and “Fabrizius Livestock LLC.” At oral argument, the petitioners’ counsel confirmed “Fabrizius Livestock” and “Fabrizius Livestock LLC” are the same entity. Oral Arg. at 15:25–15:46. We proceed on that understanding. Notwithstanding the new “LLC” label on appeal, Fabrizius Livestock is a corporation. See RII.328 (calling the company a “corporation”); Op. Br. at ii (same). 2 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 3

vulnerable to spreading disease. Fabrizius Livestock is a family affair; Mr.

Fabrizius’s partner, Amanda McMillan, helps him with the business when

she is not tending to their two children, and Mr. Fabrizius pays for the

family’s expenses using the business accounts.

Selling horses across state lines involves paperwork. Three specific

kinds bear mentioning. First, owner-shipper certificates help track horses

sold commercially for slaughter. See 9 C.F.R. § 88.4(a)(3) (2024). Second,

interstate certificates of veterinary inspection (ICVIs) help with disease-

tracing efforts for livestock transported across state lines. See id. § 86.5.

These “ICVIs are used in the investigation of animal disease exposure and

response efforts like trace-back to identify the source of infection.” RII.328.

ICVIs both “provide information about the movement of livestock from one

location to another” and “record information from an attending veterinarian

about an animal’s health status and potential exposure to disease.” RII.329.

Third, tests for equine infectious anemia (EIA) verify a horse is not infected

with that often deadly and highly communicable disease, which lacks a

vaccine or known treatment. See generally 9 C.F.R. § 75.4.

Fabrizius Livestock sold horses to a variety of buyers, including for

slaughter, and often marketed the horses on Facebook. The business often

discussed regulatory requirements for shipping horses with buyers and

transporters, though often only after the other party asked. On its Facebook

3 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 4

page, Fabrizius Livestock “clearly state[d] to potential buyers that the

buyers will be responsible for making sure that any horses that will be

transported out of the state will have the necessary paperwork.” RI.14 ¶ 26.

Still, the company occasionally provided buyers with some of the requisite

documentation, including EIA test results. It also sometimes helped buyers

load horses for transport.

Fabrizius Livestock’s financial condition is somewhat unclear from

the record. While it had negative income from 2015 to 2021, it has invested

more than $340,000 in business upgrades since 2018. “Th[e] comingling of

business and personal expenses compounds the difficulty in making an

accurate assessment of [Fabrizius Livestock’s] current finances.” RII.348.

From here on, for brevity, we refer to Mr. Fabrizius and Fabrizius

Livestock collectively as “Fabrizius.”

B

The industry in which Fabrizius operates is federally regulated. For

purposes of this case, two statutes are particularly relevant. First, the

Commercial Transportation of Equine for Slaughter Act (CTESA) empowers

“the Secretary of Agriculture to issue guidelines for the regulation of the

commercial transportation of equine for slaughter by persons regularly

engaged in that activity within the United States.” 7 U.S.C. § 1901 note

4 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 5

(Commercial Transportation of Equine for Slaughter) (quoting Pub. L. No.

104-127, § 901, 110 Stat. 888, 1184 (1996)). Acting under that authority,

USDA requires each commercially transported horse’s owner or shipper to

“[c]omplete and sign an owner-shipper certificate” providing information on

the shipper, destination, conveyance, and horse, and helping ensure the

horse’s welfare during transportation. 9 C.F.R. § 88.4(a)(3). Each violation

of that or other CTESA regulations can yield a civil penalty of up to $5,000.

Id. § 88.6(a). “Each equine transported in violation of the [CTESA]

regulations . . . will be considered a separate violation.” Id. § 88.6(b).

Second, Congress passed the Animal Health Protection Act (AHPA) to

“prevent[], detect[], control, and eradicat[e] . . . diseases and pests of

animals.” 7 U.S.C. § 8301(1). It found these actions “essential to” promoting,

inter alia, “animal health,” “the economic interests of the livestock and

related industries,” and “interstate . . . and foreign commerce . . . in animals

and other articles.” Id. § 8301(1)(A), (C), (E).

To effect these goals, the AHPA empowers the Secretary of

Agriculture to “prohibit or restrict . . . the movement in interstate commerce

of any animal . . . if the Secretary determines that the prohibition or

restriction is necessary to prevent the introduction or dissemination of any

pest or disease of livestock.” Id. § 8305(1). The AHPA defines “move”

5 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 6

broadly; it means “to carry, enter, import, mail, ship, or transport,” and “to

aid, abet, cause, or induce” any of those actions. Id. § 8302(12)(A)–(B).

Finally, the AHPA authorizes the Secretary to “promulgate such

regulations, and issue such orders, as the Secretary determines necessary

to carry out” those provisions. Id. § 8315. The Secretary has delegated his

authority under this statute to USDA’s Animal and Plant Health Inspection

Service (APHIS). 7 C.F.R. §§ 2.22(a)(2)(xxxii), 2.80(a)(37) (2024).

Acting under AHPA authority, 3 APHIS promulgated two relevant

regulations. The first prohibits selling diseased livestock across state lines.

“Animals or poultry affected with” certain listed diseases, “or any other

communicable disease which is endemic to the United States, . . . shall not

be moved interstate.” 9 C.F.R § 71.3(a). Relatedly, “[b]efore offering . . .

livestock . . . for interstate transportation, . . . all persons . . . or

corporations are required to exercise reasonable diligence to ascertain

whether such animals . . . are affected with any contagious, infectious, or

communicable disease, or have been exposed to the contagion or infection of

any such disease . . . .” Id. § 71.3(f).

A second AHPA regulation requires certain measures to help trace

disease outbreaks. It provides “[t]he persons responsible for animals leaving

3 Fabrizius does not challenge USDA’s statutory authority to issue any of the regulations on review. 6 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 7

a premises for interstate movement must ensure that the animals are

accompanied by an [ICVI] or other document required by this part for the

interstate movement of animals.” Id. § 86.5(a). Mirroring the AHPA’s broad

statutory definition, the regulation defines “move” as “[t]o carry, enter,

import, mail, ship, or transport; to aid, abet, cause, or induce carrying,

entering, importing, mailing, shipping, or transporting; . . . or to allow any

of these activities.” 9 C.F.R. § 86.1.

Offenders can face a misdemeanor for “knowingly violat[ing]” the

AHPA, or a felony for “knowingly . . . mov[ing] any animal or article[] for

distribution or sale.” 7 U.S.C. § 8313(a)(1)(A)–(B). In addition, “any person

that violates” the AHPA can receive civil penalties, id. § 8313(b)(1)—which

are at issue here. In deciding on a civil penalty amount, USDA:

• “[S]hall take into account the nature, circumstance, extent, and

gravity of the violation or violations,” id. § 8313(b)(2) (emphasis

added);

• “[M]ay consider . . . the [violator’s] ability to pay; the effect on ability

to continue to do business; any history of prior violations; the degree

of culpability; and such other factors as the Secretary considers to be

appropriate,” id. § 8313(b)(2)(A)–(E) (emphasis added); and

7 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 8

• May not exceed $250,000 per violation, and $500,000 total, for non-

willful corporate violators, id. § 8313(b)(1)(A)(ii), (b)(1)(A)(iii)(I). 4

C

The challenged fines in this case concern a number of transactions

between Fabrizius and out-of-state parties. In August 2021, APHIS filed a

complaint against Mr. Fabrizius alleging three categories of violations.

First, in July 2018, Fabrizius bought fourteen horses intended for slaughter

from a seller in Nebraska and transported the animals to its facility in

Colorado without preparing the owner/shipper certificates required under

CTESA regulations. See 9 C.F.R. § 88.4(a)(3). Second, between June and

August of 2018, in nineteen transactions, Fabrizius sold a total of fifty

horses to buyers from other states without the ICVIs required under AHPA

regulations, specifically § 86.5(a). See id. § 86.5(a), (f). Third, in one of those

nineteen transactions, Fabrizius sold a horse that moved from Colorado to

Wyoming without exercising the reasonable diligence required under AHPA

regulations, specifically § 71.3(f), to confirm the horse did not carry a

4 Pursuant to statute, USDA updated these figures for inflation, making the relevant maximum fines $340,131 per violation and $569,468 total. RII.342–43; see also 28 U.S.C. § 2461 note (Federal Civil Penalties Inflation Adjustment). 8 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 9

communicable disease—and the horse was, in fact, infected with EIA. See

id. § 71.3(f).

In May 2022, an ALJ allowed APHIS to substitute Fabrizius Livestock

for Mr. Fabrizius as the respondent. The ALJ characterized this as

“essentially an administrative change” as “all of the material allegations,

facts, and dates remain[ed] the same.” RI.26.

After a variety of administrative proceedings, the parties largely

agreed on the operative facts. And Fabrizius does not dispute the central

facts on which our decision relies. As to the first category of violations—on

the CTESA regulations—Fabrizius admitted it purchased fourteen horses

intended for slaughter from Nebraska but never prepared owner/shipper

certificates for them.

As to the second category of violations—failing to procure ICVIs—

Fabrizius admitted it sold fifty horses, in nineteen transactions, who were

then moved across state lines without ICVIs. The company’s “agent” often

“helped load the horses for transport.” RII.337. Fabrizius also knew each

horse’s buyer was “from out of state based upon the PayPal payment

receipts.” RI.41. Each of these “horses w[as] transported ‘directly’ to [a]

state[] outside of Colorado.” RII.338 (quoting RI.43).

As to the third category of violations—on the EIA-positive horse—

Fabrizius admitted the horse was moved from Colorado to Wyoming on

9 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 10

August 20, 2018. It also admitted it conducted an EIA test only that day,

and the test came back positive for EIA a week later. By that time, the horse

had already reached Wyoming. That positive test “resulted in state and

federal officials in twelve states investing hundreds of hours of time and

energy to investigate and attempt to trace the 293 horses that were

potentially exposed to EIA.” RII.313. Of those 293 potentially exposed

horses, “sixty-seven were never successfully traced” and “may continue to

spread the disease.” RII.313–14. Forty-seven of Fabrizius’s horses also

required tracking, retesting, and quarantining.

Despite these admitted and otherwise uncontested facts, Fabrizius

contested its liability to the ALJ. In arguing against liability for the ICVI

failures, Fabrizius maintained it was not among “[t]he persons responsible

for animals leaving a premises for interstate movement,” a requirement for

liability under § 86.5(a). In a July 2022 order, the ALJ disagreed, holding

Fabrizius was among the “‘persons responsible’ within” that section. RI.45.

The ALJ then held a virtual evidentiary hearing over two

nonconsecutive days in August and September 2022. That November, the

ALJ issued a second order, now finding Fabrizius liable for all alleged

CTESA and AHPA violations and issuing a $210,000 civil fine. To reach that

fine, the ALJ assessed a $10,000 penalty for each of (i) the fourteen horses

10 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 11

transported without owner/shipper certificates required by the CTESA (all

together, for $10,000 total); 5 (ii) the nineteen AHPA violations related to

the ICVIs (separately, for $190,000 total); and (iii) the single AHPA

violation related to the EIA-positive horse.

Fabrizius appealed both ALJ orders—finding Fabrizius was among

the “persons responsible” and imposing liability and a civil fine—to a USDA

Judicial Officer. Notably, Fabrizius contested its liability only regarding the

ICVI-related AHPA regulation, not the CTESA regulation or the EIA-

related AHPA regulation. Fabrizius raised five arguments to the Judicial

Officer:

1. The ALJ erred in finding that 9 C.F.R. § 86.5(a) is constitutional and not void for vagueness;

2. The ALJ erred in finding that Respondent was [among the] “persons responsible” for interstate movement as defined in 9 C.F.R. § 86.5;

3. The ALJ erred in imposing a civil penalty when Respondent did not have adequate notice in violation of its rights to due process;

5 The ALJ found Fabrizius liable for only “one violation of” CTESA

regulations. RII.312. But those regulations clarify “[e]ach equine transported in violation of the [CTESA] regulations . . . will be considered a separate violation.” 9 C.F.R. § 88.6(b) (2024). Thus, because Fabrizius admitted to transporting fourteen horses without owner/shipper certificates, the Judicial Officer later reasonably found Fabrizius “committed 14 separate violations of the CTESA.” RII.343 n.70. 11 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 12

4. The ALJ erred in imposing a fine against Respondent in the amount of $210,000 which was both arbitrary and capricious; and

5. The ALJ imposed a fine against Respondent which was an excessive fine under the Eighth Amendment of the United States Constitution.

RII.331–32.

The Judicial Officer rejected each argument, affirming both ALJ

orders in full. He found (1) the ICVI-related AHPA regulation, § 86.5(a), “is

not unconstitutionally vague and provides adequate notice to satisfy due

process,” RII.333; (2) § 86.5(a) “include[s] the seller,” and thus Fabrizius, as

part of “persons responsible,” RII.333, 336; (3) Fabrizius had

constitutionally “adequate notice that” it was among the “persons

responsible,” RII.339; (4) “the $210,000 civil penalty assessed by the ALJ

. . . is authorized by applicable law and justified by the facts in this

proceeding” and thus is not “arbitrary and capricious,” RII.341; and (5) “the

$210,000 civil penalty is not constitutionally excessive” under “the Eighth

Amendment,” RII.351.

This timely petition for review followed. On appeal, Fabrizius raises

the same five arguments advanced to the Judicial Officer.

II

We now proceed to the merits. We will first explain the scope of our

review and then address each of Fabrizius’s arguments in turn.

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The Administrative Procedure Act (APA) largely governs our review

of final agency action, including the Judicial Officer’s order. 6 See 5 U.S.C.

§ 704. The APA requires us to “hold unlawful and set aside” certain “agency

action, findings, and conclusions.” Id. § 706(2). As relevant to this appeal,

we must “set aside” agency actions that are “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law” and those that are

“contrary to constitutional right, power, privilege, or immunity.” Id.

§ 706(2)(A)–(B).

When we review an agency action for arbitrariness, “[o]ur ‘inquiry

under the APA must be thorough, but the standard of review is very

deferential to the agency.’” OXY USA Inc. v. U.S. Dep’t of the Interior, 32

F.4th 1032, 1044 (10th Cir. 2022) (quoting Hillsdale Env’t Loss Prevention,

Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156, 1165 (10th Cir. 2012)). We

are “not to substitute [our] judgment for that of the agency. Nevertheless,

the agency must examine the relevant data and articulate a satisfactory

explanation for its action including a ‘rational connection between the facts

found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the U.S. v. State

6 Neither party disputes that the Judicial Officer’s order is a final agency action subject to APA review. 13 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 14

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck

Lines v. United States, 371 U.S. 156, 168 (1962)).

Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Id.

Under this standard, we ask whether the agency’s interpretation of the regulations at issue was based on an examination of the relevant evidence and if the agency “articulated a rational connection between the facts found and the decision made.” We may reject the agency’s interpretation only when the interpretation is unreasonable, plainly erroneous, or inconsistent with the regulation’s plain meaning.

OXY USA, 32 F.4th at 1044 (quoting Payton v. U.S. Dep’t of Agric., 337 F.3d

1163, 1168 (10th Cir. 2003)).

When we review an agency action for constitutionality, however, our

standard of review differs. “Although we generally grant considerable

deference to agency action, ‘[w]e review de novo claims alleging

constitutional abuse by an agency.’” People for the Ethical Treatment of

Prop. Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990, 999–1000 (10th

Cir. 2017) (alteration in original) (quoting Burke v. Bd. of Governors of the

Fed. Rsrv. Sys., 940 F.2d 1360, 1367 (10th Cir. 1991)).

14 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 15

When we review USDA’s factual findings, we apply a substantial-

evidence standard. See 5 U.S.C. § 706(2)(E). This standard of review is

highly deferential. As we have explained,

[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The substantial evidence standard does not allow us to displace the agency’s choice “between two fairly conflicting views, even though [we] would justifiably have made a different choice had the matter been before [us] de novo.”

OXY USA, 32 F.4th at 1044–45 (second and third alterations in original)

(citation omitted) (quoting Wyo. Farm Bureau Fed’n v. Babbitt, 199 F.3d

1224, 1231 (10th Cir. 2000)).

Fabrizius first urges reversal on constitutional grounds. The company

brings two Due Process challenges related to the ICVI-related regulations.

First, Fabrizius maintains the language of § 86.5(a), especially “persons

responsible,” is void for vagueness. Second, Fabrizius avers it lacked notice

that it was among the “persons responsible” for ensuring horses moved from

its premises to another state had ICVIs. Reviewing de novo, see People for

the Ethical Treatment of Prop. Owners, 852 F.3d at 999–1000, we consider

each Due Process claim in turn.

15 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 16

We begin with Fabrizius’s void-for-vagueness arguments against

§ 86.5(a). Again, that section provides “[t]he persons responsible for animals

leaving a premises for interstate movement must ensure that the animals

are accompanied by an [ICVI] or other document required by this part for

the interstate movement of animals.” 9 C.F.R. § 86.5(a). According to

Fabrizius, the statutory language leaves unclear “the real question – what

makes a person responsible.” Op. Br. at 9. Based on that alleged lack of

clarity, Fabrizius argues this section “does not provide fair warning” and is

therefore unconstitutionally vague. Op. Br. at 10. As we explain, we are not

persuaded.

The Supreme Court has outlined the contours of a vagueness

challenge. This “doctrine addresses at least two connected but discrete due

process concerns.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253

(2012). First, “regulated parties should know what is required of them so

they may act accordingly.” Id. “[S]econd, precision and guidance are

necessary so that those enforcing the law do not act in an arbitrary or

discriminatory way.” Id. To address these concerns, the Due Process Clause

disallows any regulation that “fails to provide a person of ordinary

intelligence fair notice of what is prohibited, or [that] is so standardless that

16 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 17

it authorizes or encourages seriously discriminatory enforcement.” Id.

(quoting United States v. Williams, 553 U.S. 285, 304 (2008)).

“Some vagueness challenges contend a [regulation] is facially

vague . . . . Other vagueness challenges claim [regulations] are vague as

applied to particular parties in particular circumstances. ‘As-applied

vagueness challenges involve a factual dimension in that vagueness is

determined “in light of the facts of the case at hand.”’” Wyo. Gun Owners v.

Gray, 83 F.4th 1224, 1234 (10th Cir. 2023) (quoting United States v. Ochoa-

Colchado, 521 F.3d 1292, 1299 (10th Cir. 2008)).

As a preliminary matter, Fabrizius does not clarify whether it is

bringing a facial or as-applied vagueness challenge. For completeness, we

consider, and ultimately reject, both theories.

A regulation is not vague facially if it “has a ‘plainly legitimate

sweep,’” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,

449 (2008) (quoting Washington v. Glucksberg, 521 U.S. 702, 740 n.7 (1997)

(Stevens, J., concurring)), or if it “delineates its reach in words of common

understanding,” Jake’s Fireworks Inc. v. Acosta, 893 F.3d 1248, 1258 (10th

Cir. 2018) (quoting Brennan v. Occupational Safety & Health Rev. Comm’n,

505 F.2d 869, 872 (10th Cir. 1974)). The regulation “need not spell out all

situations where activity is” prohibited. Id.

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A regulation is not vague as applied when “the standard is clear in

light of the conduct to which it was applied.” Id. “[T]he ‘Constitution does

not . . . impose impossible standards of specificity, and courts should remain

ever mindful that general statements of the law are not inherently

incapable of giving fair and clear warning.’” Wyo. Gun Owners, 83 F.4th at

1233 (quoting Sperry v. McKune, 445 F.3d 1268, 1271 (10th Cir. 2006)).

“That there may be some borderline questions to decide is not fatal to” a

regulation. United States v. Villano, 529 F.2d 1046, 1055 (10th Cir. 1976).

Particularly here, where only civil penalties are at issue, we find

instructive that the Supreme Court has “expressed greater tolerance of

enactments with civil rather than criminal penalties because the

consequences of imprecision are qualitatively less severe.” Vill. of Hoffman

Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498–99 (1982). And it

has observed “economic regulation is subject to a less strict vagueness test

because its subject matter is often more narrow, and because businesses,

which face economic demands to plan behavior carefully, can be expected to

consult relevant legislation”—and, presumably, relevant regulations—“in

advance of action.” Id. at 498.

Applying these principles, we must reject Fabrizius’s contention that

§ 86.5(a) is unconstitutionally vague. We readily conclude the law is not

vague facially. It “has a ‘plainly legitimate sweep.’” Wash. State Grange,

18 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 19

552 U.S. at 449 (quoting Glucksberg, 521 U.S. at 740 n.7 (Stevens, J.,

concurring)). For example, buyers and interstate-livestock-transportation

companies—a central part of the regulation’s “sweep”—would clearly be

“persons responsible for animals leaving a premises for interstate

movement.” 9 C.F.R. § 86.5(a). And the regulation contains only “words of

common understanding.” Jake’s Fireworks, 893 F.3d at 1258 (quoting

Brennan, 505 F.2d at 872). That it does not “spell out all situations where

activity is” prohibited does not render it unconstitutional. Id.

This regulation is also not vague as applied. Tellingly, the Judicial

Officer had little trouble discerning § 86.5(a)’s meaning and applying it to

the instant situation. See RII.333. APHA regulations define “person” as

“[a]ny individual, corporation, company, association, firm, partnership,

society, or joint stock company, or other legal entity.” 9 C.F.R. § 86.1.

Fabrizius Livestock, a corporation, clearly meets this definition.

The only other arguably vague term in this regulation is

“responsible.” 7 But that term is also not vague. The Judicial Officer

proffered two dictionary definitions: “being a source or cause” and “being

7 Fabrizius does not bring an argument challenging on constitutional

grounds any of the following language: “for animals leaving a premises for interstate movement must ensure that the animals are accompanied by an [ICVI] or other document required by this part for the interstate movement of animals.” 9 C.F.R. § 86.5(a). 19 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 20

the cause or explanation.” RII.333 & n.36 (first quoting Responsible,

Webster’s II New College Dictionary (3d ed. 2005); and then quoting

Responsible, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003)). That

approach is reasonable; it clarifies the language “is clear,” including “in

light of the conduct to which it was applied.” Jake’s Fireworks, 893 F.3d at

1258. We take that same approach, but we use a dictionary from 2011, the

closest edition available for a major English-language dictionary to the year

of the final rule at issue (2013). See Traceability for Livestock Moving

Interstate, 78 Fed. Reg. 2040 (Jan. 9, 2013). Like the Judicial Officer, we

find “responsible,” as used in § 86.5(a), means “[b]eing a source or cause.”

Responsible, The American Heritage Dictionary of the English Language

(5th ed. 2011).

Nothing about this definition suggests unclarity as applied to

Fabrizius’s situation. While “responsible” may not be a mathematically

precise term, “the ‘Constitution does not . . . impose impossible standards

of specificity, and . . . general statements of the law” can be sufficiently

clear. Wyo. Gun Owners, 83 F.4th at 1233 (quoting Sperry, 445 F.3d at

1271). Our conclusion is reinforced by the less-searching standard the

Supreme Court has endorsed for civil penalties from economic regulations

of businesses—at issue here. See Vill. of Hoffman Ests., 455 U.S. at 498

(finding these factors increase “[t]he degree of vagueness that the

20 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 21

Constitution tolerates” and decrease “the relative importance of fair notice

and fair enforcement”).

None of Fabrizius’s contrary arguments persuade. Fabrizius first

describes several borderline cases for which the regulation allegedly

provides no clear answer, including, for instance, veterinarians, sellers to

buyers who lie about the horses’ destinations, and transporters at auctions.

See Op. Br. at 10–13. But these hypotheticals do not move the needle for

either possible type of vagueness challenge. Recall, we must reject a facial

vagueness challenge if the regulation “has a ‘plainly legitimate sweep.’”

Wash. State Grange, 552 U.S. at 449 (quoting Glucksberg, 521 U.S. at 740

n.7 (Stevens, J., concurring)). If that condition is met—as it is here—our

inquiry ends. Similarly, for an as-applied challenge, the relevant facts are

those underlying the “conduct to which [the regulation] was applied,” Jake’s

Fireworks, 893 F.3d at 1258—that is, that facts in this case, not the facts in

hypothetical future cases not before us. Again, “[t]hat there may be some

borderline questions to decide is not fatal.” Villano, 529 F.2d at 1055; see

also Vill. of Hoffman Ests., 455 U.S. at 495 (noting a party “who engages in

some conduct that is clearly proscribed cannot complain of the vagueness of

the law as applied to the conduct of others”).

Fabrizius next contends Colautti v. Franklin, 439 U.S. 379 (1979),

abrogated on other grounds by Dobbs v. Jackson Women’s Health Org., 597

21 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 22

U.S. 215, 276–77 (2022), requires us to find § 86.5(a) unconstitutionally

vague. Op. Br. at 12. In Colautti, the Supreme Court found a statute

criminalizing certain abortion-related procedures void for vagueness, in

part because of “the absence of a scienter requirement.” 439 U.S. at 390.

Fabrizius argues the AHPA regulations also lack a scienter requirement for

civil liability, suggesting they are similarly void for vagueness. Op. Br. at

12. Compare 7 U.S.C. § 8313(a)(1)(A)–(B) (imposing criminal liability on

those who “knowingly” violate the AHPA), with id. § 8313(b)(1) (imposing

civil liability on “any person that violates” the AHPA, with no scienter

requirement (emphasis added)).

But Colautti is distinguishable. It dealt with criminal penalties for

doctors, not civil penalties for businesses. 439 U.S. at 381; see Vill. of

Hoffman Ests., 455 U.S. at 498–99 (endorsing a less stringent vagueness

test for civil penalties from economic regulations of businesses). And the

Court found the lack of scienter merely “aggravated” already-existing

ambiguities. 439 U.S. at 390. Here, in contrast, we find § 86.5(a)’s terms

clear, and the regulation’s lack of a scienter requirement does not change

that conclusion.

Finally, Fabrizius assigns error to the ALJ’s interpretation of

“persons responsible,” asserting that interpretation imposes liability on

only “the seller, the buyer and the transporter” in a horse sale. Op. Br. at

22 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 23

8–11 (quoting RI.40). The company also asserts the ALJ’s interpretation

contains its own ambiguities and edge cases, “which only raises further

questions, thus demonstrating the vagueness of the regulation itself.” Op.

Br. at 13.

At the outset, whether we can even reach these arguments is not

immediately clear. Fabrizius “is appealing” only the Judicial Officer’s order,

not the two ALJ orders. Op. Br. at 1. Our jurisdiction to review USDA’s

proceedings is dictated by 7 U.S.C. § 8313(b)(4)(A), which allows review

“under chapter 158 of Title 28.” That chapter confers jurisdiction on “[t]he

court[s] of appeals” to review “the order of the agency” described in the

“petition for review.” 28 U.S.C. § 2349(a). And the only order referenced in

Fabrizius’s petition for review is the Judicial Officer’s. 8

On the one hand, Fabrizius nowhere suggests the Judicial Officer

explicitly invoked this particular part of the ALJ’s reasoning as his own. On

the other hand, a reasonable mind could view the Judicial Officer’s order as

implicitly incorporating every aspect of the ALJ’s interpretation, including

what Fabrizius specifically challenges here. See, e.g., RII.334 (providing

8 USDA does not make this jurisdictional point in its response brief.

But cases are legion that, “[w]hether or not raised by the parties, we are obligated to satisfy ourselves as to our own jurisdiction at every stage of the proceeding.” M.S. v. Premera Blue Cross, 118 F.4th 1248, 1261 (10th Cir. 2024) (alteration in original) (quoting Alexander v. Anheuser-Busch Cos., Inc., 990 F.2d 536, 538 (10th Cir. 1993)). 23 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 24

reasons to support “[t]he ALJ’s interpretation of the AHPA regulations”).

While the question is close, we ultimately conclude the Judicial Officer’s

reliance on the ALJ’s interpretation is sufficient to give us jurisdiction to

reach these arguments.

On the merits, however, Fabrizius’s arguments are unavailing.

Fabrizius suggests “the ALJ stated that [‘persons responsible’] clearly

means the buyer, seller and transporter” and “only these three parties”—

unduly excluding “other parties in the production system, including

veterinarians.” Op. Br. at 10 (emphasis added). But nowhere does the ALJ

suggest only these three parties could be liable, and veterinarians and

others could not be. He observes, “In the context of a commercial

transaction, such as in the present case, the plain, ordinary meaning of

‘persons responsible’ means the seller, the buyer, and the transporter.”

RI.40. The critical word “only” is notably absent from that sentence. And

that same order later calls § 86.5(a) “all encompassing,” casting doubt on

the notion that the ALJ intended to limit his interpretation to only three

categories of actors. RI.41. Further, according to Fabrizius, the ALJ’s

interpretation left several ambiguities intact, “which only raises further

questions, thus demonstrating the vagueness of the regulation itself.” Op.

Br. at 13. But, as discussed, the existence of edge cases under other sets of

facts is not probative here.

24 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 25

Thus, § 86.5(a) is not unconstitutionally vague.

Fabrizius’s second Due Process challenge to § 86.5(a) concerns notice.

This challenge is closely related to the broader vagueness challenge. Recall,

notice is one of the two animating principles underlying the void-for-

vagueness doctrine. Fox Television, 567 U.S. at 253.

On this front, Fabrizius argues § 86.5(a) “failed to give [it] adequate

notice that [it] was the responsible person for obtaining” ICVIs. Op. Br. at

18. USDA conducted no apparent “education campaign . . . to notify buyers

and sellers that it was their responsibility to obtain health certificates.” Op.

Br. at 19 (citing RI.131); see also Op. Br. at 22–24 (quoting RI.99) (citing

RI.245) (summarizing testimony to this effect). Ms. McMillan also testified

the agency did not issue a warning letter before seeking to fine Fabrizius.

Op. Br. at 20 (citing RI.151). Moreover, per Ms. McMillan, “the standard

practice of an auction where horses may be sold” involves buyers obtaining

ICVIs and other documentation for interstate transportation. Op. Br. at 20

(citing RI.145); see also Op. Br. at 20–22 (quoting RI.242, 244–45) (citing

RI.226–27, 229–30, 236–39, 245) (summarizing similar testimony from a

doctor who participates in livestock auctions). Under the circumstances, no

one at Fabrizius knew “it was their responsibility, as the seller[,] to obtain

a certificate.” Op. Br. at 19.

25 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 26

The trouble with these arguments is they mainly concern whether

Fabrizius had actual notice that it was liable under § 86.5(a). See, e.g., Op.

Br. at 24 (describing the mistaken “belief” of “Jason Fabrizius, Amanda

McMillan,” and a veterinarian who testified before the ALJ). The Supreme

Court has “long recognized the ‘common maxim, familiar to all minds, that

ignorance of the law will not excuse any person, either civilly or criminally.’”

United States v. Apollo Energies, Inc., 611 F.3d 679, 690 n.5 (10th Cir. 2010)

(quoting Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S.

573, 581 (2010)). Put differently, “due process does not require that citizens

be provided actual notice of all criminal rules and their meanings.” United

States v. Corrow, 119 F.3d 796, 804 (10th Cir. 1997) (quoting United States

v. Vasarajs, 908 F.2d 443, 449 (9th Cir. 1990)). We see no reason to hold

otherwise in this case, simply because the notice issue arises in the context

of civil penalties and administrative regulations. Thus, “[w]hat knowledge

[Fabrizius] had of the [AHPA]’s provisions is irrelevant to our analysis.”

Apollo Energies, 611 F.3d at 690 n.5. Fabrizius’s complaint that it was not

specifically made aware it was among the “persons responsible” under

§ 86.5(a) thus falls short.

Insofar as Fabrizius instead argues, under these circumstances, no

person would reasonably have notice, its arguments are similarly

unpersuasive. As discussed, the regulation’s terms are plain, such that

26 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 27

“regulated parties [w]ould know what is required of them.” Fox Television,

567 U.S. at 253. The record leaves no doubt Fabrizius itself was aware some

ICVI requirement existed, as it concedes it discussed that and similar

requirements with buyers and posted on Facebook that buyers had to obtain

ICVIs. 9 Fabrizius evidently construed the scope of the requirement

differently than USDA. The company cites no authority to support its

contention that USDA had to provide an education campaign, warning

letters, or the like before seeking a fine. That buyers typically obtain ICVIs

for horses sold at auction is irrelevant because, as USDA points out, the

regulation’s clear terms are decisive—and besides, none of the nineteen

transactions here involved an auction. Resp. Br. at 28–29.

Fabrizius also alludes to testimony at the ALJ hearing that ICVIs

“were only valid for thirty days,” so if someone “quarantine[d] their horses

in Colorado for” longer than that “prior to leaving state borders,” “then

another health certificate would be needed.” Op. Br. at 18. The company

also “clearly posted notice to buyers on their Facebook page that they were

responsible for obtaining the” ICVIs. Op. Br. at 18. But the company fails

to explain how these facts relate to the fair-notice inquiry, and we do not

9 Fabrizius stopped this posting practice once it “learned” its understanding that only buyers “were responsible for obtaining” ICVIs was “not accurate.” RI.139. 27 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 28

see how they are related. As USDA persuasively observes, the

“quarantining in Colorado first” scenario is not implicated here in any

event: “[t]he Judicial Officer noted, ‘the ALJ found, and [Fabrizius] does not

dispute . . . , that the horses [involved in the § 86.5(a) violations] were

transported “directly” to states outside of Colorado.’” Resp. Br. at 21

(ellipses in original) (quoting RII.338).

We are sympathetic to the tenor of Fabrizius’s arguments: that

complying with the myriad applicable regulations, and understanding their

reach, can be difficult for any business, and especially a small family

business. But the Supreme Court has made clear “the law is full of instances

where a man’s fate depends on his estimating rightly . . . some matter of

degree”—and such instances frequently survive constitutional scrutiny.

Johnson v. United States, 576 U.S. 591, 604 (2015) (alteration in original)

(quoting Nash v. United States, 229 U.S. 373, 377 (1913)). That is true even

when a regulation uses only a “qualitative standard,” as this one does. Id.

We therefore cannot say USDA acted unconstitutionally in enforcing

§ 86.5(a) against Fabrizius.

Fabrizius next argues, even if finding liability under § 86.5(a) passes

constitutional scrutiny, USDA acted arbitrarily and capriciously in finding

Fabrizius was among “[t]he persons responsible for animals leaving a

28 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 29

premises for interstate movement.” 9 C.F.R. § 86.5(a); see Op. Br. at 14–17.

In contrast to our de novo review of Fabrizius’s constitutional challenges,

our review here “is very deferential to the agency.” OXY USA, 32 F.4th at

1044 (quoting Hillsdale, 702 F.3d at 1165). Accordingly, “[w]e may reject

the agency’s interpretation only when the interpretation is unreasonable,

plainly erroneous, or inconsistent with the regulation’s plain meaning.” Id.

at 1052 (quoting Biodiversity Conservation All. v. Jiron, 762 F.3d 1036,

1060 (10th Cir. 2014)).

We begin by observing Fabrizius “does not dispute” the fifty horses at

issue “were transported ‘directly’” from its premises “to states outside of

Colorado.” RII.338 (quoting RI.43). Thus, there can be no dispute, in these

nineteen transactions, “animals le[ft] a premises for interstate movement.”

9 C.F.R. § 86.5(a). Fabrizius also concedes all fifty horses lacked ICVIs. All

that is at issue, then, is whether Fabrizius is among the “persons

responsible” for those horses’ “interstate movement.” Id. And recall,

Fabrizius meets the regulatory definition of “person.” See id. § 86.1. So the

dispositive inquiry is whether the Judicial Officer erred in finding Fabrizius

was among those “responsible” for the animals’ interstate movement.

We discern no error. As the Judicial Officer summarized,

[t]he word “responsible” is commonly understood to mean “being a source or cause.” By use of the plural form, “persons,” the AHPA regulations reach beyond any single person responsible

29 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 30

to encompass all persons involved in the process of “animals leaving a premises for interstate movement.” In the context of commercial transactions like the ones at issue, an individual of ordinary intelligence would understand “persons responsible” to include the seller.

RII.333 (footnotes and citations omitted) (quoting Responsible, Webster’s II

New College Dictionary (3d ed. 2005)); accord Responsible, The American

Heritage Dictionary of the English Language (5th ed. 2011) (providing the

same definition in a more contemporaneous dictionary). This interpretation

is not “unreasonable, plainly erroneous, or inconsistent with the

regulation’s plain meaning.” OXY USA, 32 F.4th at 1052 (quoting

Biodiversity Conservation All., 762 F.3d at 1060). We cannot find USDA’s

conclusion “runs counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in view or the

product of agency expertise.” State Farm, 463 U.S. at 43. A dealer selling

horses to buyers known to be from out of state can be reasonably deemed

“responsible,” under the word’s plain meaning, for those horses’ interstate

movements.

While that plain meaning is decisive, two other factors the Judicial

Officer discussed reinforce our conclusion. First, the notice of proposed

rulemaking proposing this regulation would have applied liability to only

“[t]he person directly responsible.” RII.334 (quoting Traceability for

Livestock Moving Interstate, 76 Fed. Reg. 50082, 50109 (Aug. 11, 2011)).

30 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 31

Following public comments, to clarify the rule would not “single out the

accredited veterinarian or any other individual as being the primary

responsible party in all cases,” APHIS changed the regulatory language to

the broader “persons responsible.” RII.334 (quoting Traceability for

Livestock Moving Interstate, 78 Fed. Reg. 2040, 2057 (Jan. 9, 2013)). This

change clarifies § 86.5(a) “is not limited to the single person who is directly

responsible for transporting the animals from the premises or writing the

ICVI.” RII.334. APHIS’s evident intent to broaden the scope of liability

under § 86.5(a) reinforces that horse sellers who know buyers are from

another state are among those responsible for horses’ interstate movement.

Second, the regulation defines “move” broadly to include “aid[ing],

abet[ting], caus[ing], or induc[ing] carrying, entering, importing, mailing,

shipping, or transporting,” as well as “allow[ing] any of these activities.” 9

C.F.R. § 86.1; accord 7 U.S.C. § 8302(12)(A)–(B) (providing a similarly

broad statutory definition of “move”). By selling the fifty horses, Fabrizius

at least “aid[ed], abet[ted], cause[d], or induce[d]” their “transport[ation],”

or “allowed” it. 9 C.F.R. § 86.1. Indeed, as the Judicial Officer found,

Fabrizius itself often “helped load the horses for transport.” 10 RII.337.

10 Fabrizius argues the affidavits establishing this fact are not credible because the people who prepared them have a material interest in Fabrizius being found liable. Op. Br. at 16. But the applicable substantial- evidence standard for factual judgments like this is too high for us to reject 31 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 32

Fabrizius’s arguments to the contrary are unavailing. It first argues

it cannot know where buyers will go after taking ownership and possession

of the horses, making it not “responsible” for their being moved interstate.

Op. Br. at 14–17. But § 86.5(a)’s plain meaning, as reinforced by the two

factors already described, confirms causing the interstate movement

suffices. By selling horses to buyers known to be from outside Colorado,

Fabrizius caused those horses’ interstate movement. Under that plain

meaning, Fabrizius is indeed “responsible.” Recall, § 86.5 carries no scienter

or ownership requirement for civil liability. It only requires a person be

among the “persons responsible[, i.e., who are a source or cause,] for animals

leaving a premises for interstate movement[, including people who cause,

induce, aid, abet, or allow transportation across state lines, regardless of

their mens rea].” 9 C.F.R. § 86.5(a). Fabrizius meets that broad definition. 11

We thus cannot find the Judicial Officer erred in so holding, particularly

this factual finding because of purported bias. “Our function” in reviewing an agency order “is not to weigh the evidence or to evaluate the witnesses’ credibility.” Gallagher v. NTSB, 953 F.2d 1214, 1217 (10th Cir. 1992) (quoting Sorenson v. NTSB, 684 F.2d 683, 685 (10th Cir. 1982)); see also F & H Coatings, LLC v. Acosta, 900 F.3d 1214, 1221 (10th Cir. 2018) (similar). 11 Further, the buyers’ out-of-state addresses in these nineteen transactions, see RI.41, mean Fabrizius could not have claimed surprise when the horses moved directly across state lines. While Fabrizius suggests some out-of-state buyers sometimes keep horses in Colorado immediately after buying them, see Op. Br. at 18, it does not suggest it had any particular reason to expect that from these out-of-state buyers. 32 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 33

given the “very deferential” standard of review we apply to this challenge.

OXY USA, 32 F.4th at 1044 (quoting Hillsdale, 702 F.3d at 1165). 12

Finally, Fabrizius challenges the size of the fines USDA imposed.

Recall, the ALJ imposed, and the Judicial Officer affirmed, a fine of $10,000

for each of (i) the fourteen CTESA violations (all together), (ii) the nineteen

ICVI-related violations (separately), and (iii) the EIA-related violation—for

$210,000 total. Fabrizius urges reversal on two grounds. First, it argues the

fine is arbitrary and capricious. Second, it argues the fine is excessive under

the Eighth Amendment. Neither argument is availing, as we explain. 13

12 What is more, § 86.5(a) merely requires that “[t]he persons responsible . . . ensure that the animals are accompanied by an [ICVI] or other document required by this part for the interstate movement of animals.” 9 C.F.R. § 86.5(a) (emphasis added). Each “person[] responsible” therefore need not procure the ICVI themselves; they must merely “ensure” one is procured. This regulatory scheme imposes broad liability on all parties with a significant role in an animal’s interstate movement to ensure at least one party procures an ICVI. See RII.336 (explaining this broad “understanding is consistent with the purpose of the AHPA—to prevent, detect, control, and eradicate diseases and pests of animals”). While we need not decide § 86.5(a)’s precise contours in this case, it is possible Fabrizius could have met its requirement by, for example, making buyers sign a document promising to obtain an ICVI if they would leave the state. But Fabrizius does not suggest it took any similar steps to ensure an ICVI was procured. 13 In its opening brief, Fabrizius contests the “civil penalty of $210,000”—i.e., its penalty for all of the AHPA and CTESA violations. Op. Br. at 2; see also Op. Br. at 2, 5, 6, 24, 28, 32 (referencing this penalty amount). But the $10,000 penalty for the fourteen CTESA violations is not 33 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 34

We begin with Fabrizius’s arbitrariness challenge to the fines. Key to

this inquiry is whether “the agency has relied on factors which Congress

has not intended it to consider” or “entirely failed to consider an important

aspect of the problem.” State Farm, 463 U.S. at 43. We also ask whether

USDA offered “an explanation for its decision that runs counter to the

evidence before the agency, or is so implausible that it could not be ascribed

to a difference in view or the product of agency expertise.” Id.

As to the relevant “factors” and “important aspect[s],” id., the AHPA

is explicit about what factors USDA is to consider in deciding on civil

penalty amounts. The Judicial Officer was similarly clear about the factors

on which he relied. We thus begin by walking through the statutory factors

and the Judicial Officer’s reasoning as to each.

The AHPA lists four factors USDA “shall”—i.e., must—“take into

account”: the violations’ (i) “nature,” (ii) “circumstance,” (iii) “extent,” and

(iv) “gravity.” 7 U.S.C. § 8313(b)(2). The Judicial Officer discussed each one.

properly before us. As USDA clarifies, Fabrizius does not challenge—and, jurisdictionally, likely could not challenge—its liability under the CTESA in this appeal. See Resp. Br. at 1 n.1 (noting the CTESA, unlike the AHPA, does not allow “direct review in the courts of appeals under 28 U.S.C. § 2342; instead, review would be had in the appropriate district court under 28 U.S.C. § 1331”). Fabrizius’s reply brief once references “a $250,000 fine.” Reply Br. at 15. That value’s source is unclear. We now clarify the fines we can review total $200,000. 34 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 35

On (i), he found “[t]he nature of the violations is extremely serious.” RII.344.

Failing to obtain ICVIs and moving an EIA-positive horse across state lines

“undermined USDA’s animal disease control efforts and posed a threat to

animal health.” RII.344; see also 7 U.S.C. § 8301(1)(A) (confirming concern

for protecting “animal health” underlies the AHPA).

On (ii), the Judicial Officer found “[t]he circumstances of the

violations also favor the” $200,000 penalty because Mr. Fabrizius “is an

experienced horse dealer” who knew a lot about horse-related

documentation and disease-testing requirements, making his failures

especially obvious. RII.344–45. “Moreover,” the Judicial Officer continued,

Fabrizius’s “conduct is made more egregious by its own awareness of the

high risk that the horses it was selling and allowed to leave its premises

without ICVIs were exposed to disease.” RII.345.

On (iii), the Judicial Officer found “[t]he extent of the violations also

supports the civil penalty assessment” as the § 86.5 violations “involved 50

horses, 19 separate transactions, and multiple out-of-state buyers”—all

“over a short period of time.” RII.345–46; see also RI.17–23 ¶¶ D, F–R, T–X

(confirming the § 86.5 violations all occurred between June and October

2018).

And on (iv), he found “that the gravity of the violations is great”

because Fabrizius’s failures concerning the EIA-positive horse “created a

35 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 36

very serious risk” and the sixty-seven untraced horses “could still be

transmitting the disease.” RII.346. Fabrizius’s ICVI failures were especially

serious because “the horses that left its premises without ICVIs were

particularly vulnerable to disease exposure.” RII.346. “Further,” he

reasoned, “the potential impact [Fabrizius]’s conduct could have had on the

international equine market cannot be ignored,” as disease risk and poor

traceability hinder the valuable horse-export market. RII.347.

The AHPA next lists five factors USDA “may consider”: “(A) the

[violator’s] ability to pay; (B) the effect on ability to continue to do business;

(C) any history of prior violations; (D) the degree of culpability; and (E) such

other factors as the Secretary considers to be appropriate.” 7 U.S.C.

§ 8313(b)(2)(A)–(E). On (A) and (B), the Judicial Officer agreed with the

ALJ’s assessment of the evidence on Fabrizius’s finances “as ‘confusing and

ambiguous, at best.’” RII.347 (quoting RII.318). The business and personal

tax returns in the record painted unclear and conflicting pictures, made

even more opaque by Mr. Fabrizius’s “comingling of business and personal

expenses.” RII.347–48. Based on this evidence, the Judicial Officer

concluded he “cannot find that the record reflects an inability to pay or

effect on [Fabrizius]’s ability to continue to do business to warrant a

reduction of the civil penalty assessed by the ALJ.” RII.348.

36 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 37

On (C), the Judicial Officer acknowledged Fabrizius “had no prior

violations.” RII.349. Still, a reduction of the civil penalty was not

warranted, the Judicial Officer reasoned, “given the nature and

circumstances of the violations in this proceeding.” RII.349.

On (D), the Judicial Officer agreed with the ALJ that Fabrizius “is

‘highly culpable.’” RII.348 (quoting RII.316). Mr. Fabrizius has been “in the

horse business his whole life,” and “[h]e was well-experienced in buying and

selling horses and was aware of relevant regulations governing the horse

industry” and attendant “paperwork requirements.” RII.348–49. Fabrizius

“also knew that the horses it advertised for sale were at high risk of disease

exposure.” RII.348–49.

The Judicial Officer did not address discretionary factor (E), the

catchall for “other factors.” See RII.347–49.

In sum, the Judicial Officer considered all mandatory factors and all

discretionary factors except the catchall for “other factors.” He thus did not

“entirely fail[] to consider an important aspect of the problem.” State Farm,

463 U.S. at 43. He did not apparently consider any impermissible factors,

so we cannot find he “relied on factors which Congress has not intended

[him] to consider.” Id. He reasonably found all mandatory factors, and three

of the four discretionary factors he considered, support a nontrivial penalty.

And we cannot say his explanation “runs counter to the evidence before the

37 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 38

agency, or is so implausible that it could not be ascribed to a difference in

view or the product of agency expertise.” Id. Nothing in this analysis is

“unwarranted in law or without justification in fact,” so “we [may] not

overturn [the] agency’s choice of sanctions.” Chapman v. U.S. Dep’t of

Health & Hum. Servs., 821 F.2d 523, 529 (10th Cir. 1987) (citing Butz v.

Glover Livestock Comm’n, 411 U.S. 182, 185 (1973)). 14

Fabrizius’s contrary arguments are unavailing. It first complains

about the lack of a “clear formula” or “specifics on how the fine was

determined.” Op. Br. at 25; see also Op. Br. at 26 (faulting USDA for not

using a “standardized worksheet, training or protocols to determine the

fine”); Op. Br. at 27 (faulting USDA for not explaining “the process by which

all these parties determine the actual number of the fine recommended”).

But the company cites no authority requiring a formula or additional

explanation. “[R]eviewing courts are generally not free to impose”

14 Notably, the maximum penalty in this case was $340,131 per violation and $569,468 total. See supra note 4. These $10,000 fines thus constituted about 2.9% of the maximum per-violation fine, and the $200,000 total fines constituted about 35.1% of the maximum per-proceeding fine. It is at least arguable that, mirroring the CTESA, USDA could have determined each horse sold, rather than each transaction, to constitute a violation of AHPA regulations. In that case, given fifty horses sold without ICVIs and one sold without adequate diligence to discover its EIA infection, Fabrizius would have committed fifty-one violations instead of twenty. At the same $10,000 per violation, USDA then could have imposed a 255% larger total AHPA fine: $510,000. 38 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 39

“additional procedural rights” “if the agencies have not chosen to grant

them.” Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S.

519, 524 (1978). We also doubt if much more precision would be possible as

each statutory factor is qualitative and open to varying interpretations.

Fabrizius next insists its financial condition should have received

more import in the fine analysis, and some testimony suggests this fine will

put Fabrizius out of business. Op. Br. at 27–28. But substantial evidence

supports the Judicial Officer’s conclusion that the record evidence does not

“reflect[] an inability to pay or effect on [Fabirizius]’s ability to continue to

do business.” RII.348. Other evidence points in the opposite direction; for

instance, Fabrizius “invested more than $340,000 for business upgrades

since 2018 and deducted 100% of the purchases.” RII.348. “[A] reasonable

mind might accept” this evidence “as adequate to support” the Judicial

Officer’s “conclusion” about Fabrizius’s finances—all that is required under

the deferential standard applicable here. OXY USA, 32 F.4th at 1044. We

may not “displace the agency’s choice ‘between two fairly conflicting views,

even though [we] would justifiably have made a different choice had the

matter been before [us] de novo.’” Id. at 1044–45 (alterations in original)

(quoting Wyo. Farm Bureau Fed’n, 199 F.3d at 1231). And besides, these

two ability-to-pay-related factors are discretionary. See 7 U.S.C.

§ 8313(b)(2)(A)–(B). So we could not accept Fabrizius’s argument without

39 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 40

impermissibly “substitut[ing our] judgment” on how to weigh these

nonmandatory factors “for that of the agency.” State Farm, 463 U.S. at 43.

Fabrizius then urges us to consider mitigating factors the penalty

apparently does not reflect: the violations constituted “a first offense”;

Fabrizius has since taken “remedial steps . . . to address the concerns raised

by the agency”; and Fabrizius had performed an EIA test on the EIA-

positive horse, even if too late, and testimony suggests that test may have

mitigated the resulting damage. Op. Br. at 28–30. The second and third of

these do not appear to be statutory factors, see 7 U.S.C. § 8313(b)(2)(A)–(E),

so we cannot find the Judicial Officer erred by not considering them. And

the Judicial Officer did observe this was Fabrizius’s first offense, but he

found other factors overcame that single discretionary factor to justify a

nontrivial penalty. RII.349.

Finally, Fabrizius alleges most of USDA’s concern lies with the one

horse with EIA; “[t]he record shows little impact for the 50 horses that left

the state without veterinary certificates.” Reply Br. at 20. To the contrary,

the Judicial Officer noted even poor traceability from ICVI failures can have

a high “potential impact . . . on the international equine market.” RII.347.

That invokes Congress’s concern for “the economic interests of the livestock

and related industries” and “interstate . . . and foreign commerce . . . in

animals and other articles.” 7 U.S.C. § 8301(1)(C), (E). It is easy to see how

40 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 41

poor equine-disease traceability can hinder both goals, as the Judicial

Officer reasonably explained. And besides, a slight impact from some

violations is, at most, one factor among many, and we cannot disturb the

Judicial Officer’s reasonable balancing of all factors. 15

Thus, we find the $200,000 fine under review is not arbitrary or

capricious.

Fabrizius’s challenge to the fines under the Eighth Amendment’s

Excessive Fines Clause likewise lacks merit. We review constitutional

regulatory issues de novo. See People for the Ethical Treatment of Prop.

Owners, 852 F.3d at 999–1000. But we still apply a deferential substantial-

evidence standard to underlying factual findings. See OXY USA, 32 F.4th

at 1044–45; cf. United States v. Wagoner Cnty. Real Est., 278 F.3d 1091,

1102 (10th Cir. 2002) (citing United States v. Bajakajian, 524 U.S. 321, 336

n.10 (1998)) (applying a “clearly erroneous” standard to a district court’s

factual findings underlying an Excessive Fines Clause ruling).

15 Fabrizius’s analogy to Corder v. United States, 107 F.3d 595 (8th

Cir. 1997), falls short. See Op. Br. at 29–30. Besides being out of circuit, Corder involves USDA levying the maximum fine against a food-stamp trafficker based on a formula that weighed an impermissible mix of extrastatutory factors. Corder, 107 F.3d at 597–98. Here, in contrast, USDA used no formula, balanced statutory factors, and imposed a fine well below the statutory maximum. 41 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 42

Fabrizius argues the $200,000 penalty violates the Excessive Fines

Clause. The Eighth Amendment reads, “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII (emphasis added).

“The touchstone of the constitutional inquiry under the Excessive

Fines Clause is the principle of proportionality: The amount of the forfeiture

must bear some relationship to the gravity of the offense that it is designed

to punish.” Bajakajian, 524 U.S. at 334. More specifically, “[i]f the amount

of the forfeiture is grossly disproportional to the gravity of the defendant’s

offense, it is unconstitutional.” 16 Id. at 337 (emphasis added).

To test for gross disproportionality, the Bajakajian “Court examined

several factors. One of the most important was Congress’s judgment about

the appropriate punishment,” as indicated mainly by the “[m]aximum

statutory fines.” Wagoner Cnty., 278 F.3d at 1100. We, in turn, have

approvingly cited an Eleventh Circuit case holding “if the value of forfeited

property is within the range of fines prescribed by Congress, a strong

presumption arises that the forfeiture is constitutional.” Id. (quoting United

16 While much of the caselaw on the Excessive Fines Clause, including

Bajakajian, is about forfeitures, not fines as such, these forfeiture cases apply to fines. The Bajakajian Court treated the forfeiture at issue as “a ‘fine’ within the meaning of the Excessive Fines Clause.” 524 U.S. 321, 334 (1998). The $200,000 penalty on review is similarly a “fine” within the meaning of the Eighth Amendment; no party contends otherwise. 42 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 43

States v. 817 N.E. 29th Dr., 175 F.3d 1304, 1309 (11th Cir. 1999)).

“Additional factors for consideration of the gravity of the offense include the

extent of the [unlawful] activity, related illegal activities, and the harm

caused to other parties.” 17 Id. (citing Bajakajian, 524 U.S. at 337–39).

We begin with the preeminent factor: “Congress’s judgment about the

appropriate punishment.” Id. At Fabrizius’s own admission, “a sizeable gap

between the penalty imposed and the maximum penalty in the statute”

exists. 18 Reply Br. at 22. At the outset, therefore, “a strong presumption

arises that the forfeiture is constitutional.” Wagoner Cnty., 278 F.3d at 1100

(quoting 817 N.E. 29th Dr., 175 F.3d at 1309). The dispositive question

becomes whether other Bajakajian factors overcome this “strong

presumption.”

They do not. As discussed, the unlawful conduct supporting

Fabrizius’s liability was extensive, involving fifty horses across nineteen

17 This court has “suggested other considerations” to supplement “the

Bajakajian factors.” United States v. Wagoner Cnty. Real Est., 278 F.3d 1091, 1101 (10th Cir. 2002). But each of those “other considerations” is relevant only to the forfeiture context, see id., so we need not consider them here. 18 Fabrizius argues these maximum penalties are reserved for “large

scale corporation[s],” not “a small family run business,” so the fine in this case should be judged relative to a lower maximum amount. Reply Br. at 22. But Fabrizius cites no authority for that contention, so we are unpersuaded. 43 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 44

transactions. Multiple regulatory failures occurred in a short period,

involving two AHPA regulations and one CTESA regulation. And

substantial evidence supports the Judicial Officer’s factual finding that

Fabrizius’s “violations posed a threat to the health and economic vitality of

the U.S. equine industry.” RII.353. Thus, all Bajakajian factors—including

the critical “Congress’s judgment” factor—confirm this $200,000 fine is

constitutional.

Fabrizius resists this conclusion. The company points to APHIS

seeking a higher penalty after substituting the company for Mr. Fabrizius

as the Respondent. Op. Br. at 31–32. But USDA correctly observes

“Fabrizius Livestock, an experienced and active horse trader, was plainly

among the class of persons for whom the regulations were intended”—

meaning fining that company, and not the individual, is consistent with

Congress’s intent. Resp. Br. at 37.

Fabrizius next suggests, in contrast to the EIA-related § 71.3(f)

violation, the ICVI-related § 86.5(a) violations caused little harm, especially

because Fabrizius undertook voluntary traceability-focused measures even

where not required—making the identical $10,000 fines for each violation

difficult to defend. Op. Br. at 32–35. But USDA is again correct that the

Eighth Amendment only “requires that no single offense be punished

excessively”; that the allegedly more-serious § 71.3(f) violation and the

44 Appellate Case: 23-9570 Document: 75-1 Date Filed: 02/24/2025 Page: 45

nineteen allegedly less-serious § 86.5(a) violations each carried an identical

$10,000 fine, of itself, does not have constitutional consequences. Resp. Br.

at 39.

Fabrizius insists the fine “would force [Mr. Fabrizius] out of

business.” Op. Br. at 35. That is relevant to the constitutional inquiry. See

Bajakajian, 524 U.S. at 335 (“Magna Charta . . . required only that

amercements (the medieval predecessors of fines) should be proportioned to

the offense and that they should not deprive a wrongdoer of his livelihood.”

(emphasis added)). And we are sympathetic to this possibility. But the party

alleging an Eighth Amendment violation bears the burden to demonstrate

gross disproportionality. Wagoner Cnty., 278 F.3d at 1101 n.8. And, as

explained above, substantial evidence supports the Judicial Officer’s

conclusion that the record does not support finding Fabrizius cannot pay.

See RII.348. We thus cannot find Fabrizius has made the required showing

here.

Thus, the fine is not excessive under the Eighth Amendment.

III

We DENY the petition for review.