Bobo v. U.S. Dept. of Agriculture

• Decision Date: 05 May 1995
• Docket Number: No. 94-3311,94-3311
• Citation: 52 F.3d 1406
• Parties: William Earl BOBO; Jack Mitchell, Petitioners, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1406

52 F.3d 1406

William Earl BOBO; Jack Mitchell, Petitioners, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.

No. 94-3311.

United States Court of Appeals Sixth Circuit.

Argued March 20, 1995.

Decided May 5, 1995.

G. Thomas Blankenship (argued), Blankenship & Robbins, Indianapolis, IN, John M. Harmon (briefed), Boyce C. Cabiness (briefed), Graves, Dougherty, Hearon & Moody, Austin, TX, for petitioners.

Jeffrey Alan Knishkowy (argued and briefed), U.S. Dept. of Agriculture, Washington, DC, for respondent.

Before: MILBURN and NELSON, Circuit Judges; JOINER, ^* District Judge.

MILBURN, Circuit Judge.

Petitioners William Earl Bobo and Jack Mitchell seek review of the decision of the Secretary of Agriculture pursuant to the Horse Protection Act ("HPA"), 15 U.S.C. Sec. 1821, et seq., assessing civil penalties and prohibiting petitioners from showing or entering horses for a period of two years, based upon the finding that petitioners had on two previous occasions showed a Tennessee Walking Horse, Ultimate Beam, at a horse show while the horse was "sore." On appeal, the issues are (1) whether "soreness" under the HPA can be determined based solely upon a horse's reaction to digital palpation; and (2) whether substantial evidence supports the finding of the administrative law judge ("ALJ") that the horse, Ultimate Beam, was "sore" within the meaning of the HPA at the time of the two horse shows, which were held in May and July 1990. For the reasons that follow, the petition for review is denied.

I.

A.

On August 13, 1991, the Administrator of Animal and Plant Health Inspection Service ("APHIS") filed a complaint against petitioners. ¹ The amended complaint alleged that petitioners Bobo and Mitchell violated the HPA, 15 U.S.C. Sec. 1824(2), on two occasions: (1) on May 26, 1990, by entering and allowing the entry of a horse, Ultimate Beam, for showing while the horse was "sore," and (2) on July 21, 1990, by entering and exhibiting and allowing the entry and exhibition of the same horse while the horse was "sore." The Administrator of APHIS sought the imposition of civil penalties against petitioners under Sec. 6(b) of the HPA and the disqualification of petitioners from significant participation in the horse industry under Sec. 6(c) of the Act, 15 U.S.C. Sec. 1825(b), (c). Petitioners filed a timely answer on September 23, 1991, denying the material allegations in the complaint.

A hearing was held before an ALJ in Nashville, Tennessee, from December 14 through December 17, 1992. On July 14, 1993, the ALJ issued a decision and order in which he determined that Ultimate Beam had been "sore" within the meaning of the HPA on May 26, 1990, and again on July 21, 1990. The ALJ assessed a civil penalty of $2000 against petitioner Bobo and petitioner Mitchell, and he disqualified both petitioners from showing or exhibiting horses for a period of two years.

On October 13, 1993, petitioners filed an appeal with the United States Department of Agriculture ("USDA") Judicial Officer ("JO"). In a decision and order dated January 12, 1994, the JO affirmed the ALJ's decision and order and adopted the findings of the ALJ with minimal modifications. On January 31, 1993, petitioners filed a petition for reconsideration of the JO's decision and order, which was denied by the JO on February 28, 1994. Thereafter, on March 24, 1994, petitioners filed a petition for review of the Secretary's decision in this court.

B.

This case involves a determination by the USDA that Ultimate Beam, a Tennessee Walking Horse, which was trained by petitioner William Earl Bobo and owned by petitioner Jack Mitchell was "sore" as defined by the HPA when the horse was entered in two horse shows held in May and July 1990.

Petitioner Bobo entered Ultimate Beam in the Twentieth Annual Dominion Bank Spring Fun Show at Shelbyville, Tennessee, on May 26, 1990. Mr. Bobo signed the entry form for Ultimate Beam and delivered it, along with the entry fee, to the management of the Horse show. Mr. Bobo also testified that he entered Ultimate Beam in the Fun Show.

The stallion, Ultimate Beam, was examined by the Designated Qualified Person ("DQP"), Charles Thomas, at approximately 9 p.m. on May 26, 1990. DQP Thomas' examination was performed prior to the start of the scheduled competition. DQP Thomas found that Ultimate Beam was "sensitive" in both front feet, and he excused the horse from competition. Mr. Thomas testified that his finding of "sensitive" meant that Ultimate Beam repeatedly moved his feet in reaction to palpation of specific areas of both pasterns.

Immediately following DQP Thomas' examination, Ultimate Beam was examined by two USDA veterinarians, George Clawson, D.V.M., and Tyler Riggins, D.V.M., who were the Veterinary Medical Officers ("VMOs") assigned to examine the horses at the Shelbyville Fun Show. Both veterinarians independently observed that Ultimate Beam exhibited pain responses to their palpations of the anterior pasterns of both forelegs and the posterior pastern of the left foreleg. The pain was extreme in the right leg. Ultimate Beam demonstrated his pain by jerking his foot and tightening his abdominal muscles when pressure was applied to the anterior pasterns of both forelegs. In addition, the horse raised his head in response to pressure on the anterior pastern of his right foreleg.

Drs. Clawson and Riggins concluded that the pain responses exhibited by Ultimate Beam did not result from natural causes. Dr. Clawson recorded his opinion that the pain exhibited by Ultimate Beam resulted from "abuse[ ] with mechanical devices or chemicals during training." J.A. 98. Dr. Riggins recorded his opinion that the condition of the horse "was caused by caustic chemicals or mechanical devices or a combination of both." J.A. 100, 101.

Both veterinarians agreed that Ultimate Beam was "sore" as defined in the HPA. If both veterinarians had not agreed that Ultimate Beam was "sore," no violation action would have been initiated.

Dr. Clawson prepared a Summary of Alleged Violations, VS Form 19-7, which was later signed by both veterinarians. The summary described the location and nature of the pain exhibited by Ultimate Beam and stated that the horse met the criteria for being "sore" as defined in the HPA. Each veterinarian prepared an affidavit recording the results of his examination of Ultimate Beam. Although both Dr. Clawson and Dr. Riggins testified that they had no independent recollection of the examination of Ultimate Beam at the time of the hearing in this case, each testified that he prepared the affidavit recording the results of his examination shortly after the examination and while the event was fresh in his mind. In addition, both Drs. Clawson and Riggins testified that in palpating a horse's pastern, they employ examination methods that would distinguish consistent and localized pain response to palpation from the reaction of a nervous or skittish horse, which generally would react to touching anywhere on its foot.

Subsequently, petitioner Bobo entered Ultimate Beam as Entry 27, Class 13, in the Twenty-Second Annual Albertville Horse Show at Albertville, Alabama, on July 21, 1990. Mr. Bobo signed the class sheet and paid Ultimate Beam's entry fee for the Albertville show. Mr. Bobo testified that he prepared Ultimate Beam for show and that he presented him for both pre-show and post-show examinations.

Ultimate Beam wore chains while in the show ring at the Albertville show. Because Ultimate Beam placed first in his class, he was examined after the show by two USDA veterinarians, Gerald Dienhart, D.V.M., and Lowell Wood, D.V.M.

Dr. Dienhart was completing his training in the detection of "soreness" under the Act, and he was gaining experience in the detection of "soreness" under Dr. Wood's supervision. On the other hand, Dr. Wood had extensive experience in examining horses to determine if they were in compliance with the HPA.

Each veterinarian independently examined Ultimate Beam and observed pain responses to his palpations of the posterior and anterior pasterns of the forelegs. Both Dr. Dienhart and Dr. Wood concluded that Ultimate Beam was "sore" as defined by the HPA.

Shortly after the examinations by the two veterinarians, Dr. Wood prepared a Summary of Alleged Violations, VS Form 19-7, which was signed by both Dr. Dienhart and Dr. Wood. The summary stated that the horse was "sore" and depicted the affected areas of the horse's pasterns in diagrams.

Dr. Wood testified that he did not have any independent recollection of the examination on July 21, 1990, but that he prepared an affidavit in which he recorded his findings shortly after the events described in the affidavit and while they were still fresh in his mind. Dr. Wood stated that Ultimate Beam demonstrated pain by withdrawing his foot when light to moderate digital pressure was applied to the following areas of each foreleg: an area on the anterior pastern ranging from medial to lateral, beginning about two centimeters above the coronary band and proceeding proximally for about three centimeters; and an area above the medial bulb of the heel on the posterior pastern ranging proximally and medially toward the medial pastern joint area.

Dr. Dienhart also prepared an affidavit shortly after the examination of Ultimate Beam, while the event was still fresh in his mind. Dr. Deinhart stated that the horse elicited strong, consistent, and repeatable pain responses during both his examination and Dr. Wood's examination. He stated that Ultimate Beam withdrew his foot, jerked his head and tightened his abdominal musculature in response to the palpation of the following areas of both forelegs: an area of the anterior pastern one inch above the coronary band, both medial and lateral; and an area above the bulb of the heel on the medial side of the posterior pastern. Dr. Dienhart recorded his opinion that Ultimate Beam's pain responses were caused by a...