American Horse Protection Ass'n, Inc. v. Lyng

• Decision Date: 24 February 1987
• Docket Number: No. 85-6166,85-6166
• Parties: AMERICAN HORSE PROTECTION ASSOCIATION, INC., Appellant, v. Richard E. LYNG, Secretary, U.S. Department of Agriculture.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1

812 F.2d 1

258 U.S.App.D.C. 397

AMERICAN HORSE PROTECTION ASSOCIATION, INC., Appellant, v. Richard E. LYNG, Secretary, U.S. Department of Agriculture.

No. 85-6166.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 17, 1986.

Decided Feb. 24, 1987.

Russell J. Gaspar, Washington, D.C., for appellant.

Patricia D. Carter, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before STARR and WILLIAMS, Circuit Judges, and GREEN, ^* District Judge.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

The American Horse Protection Association (the "Association") appeals from a grant of summary judgment to the Secretary of Agriculture in its challenge to regulations under the Horse Protection Act, 15 U.S.C. Secs. 1821-1831 (1982) (the "Act"). We find that summary judgment was inappropriate in view of the Secretary's failure to offer a satisfactory explanation of his refusal to institute rule making proceedings.

I. BACKGROUND

The regulations at issue concern the practice of deliberately injuring show horses to improve their performance in the ring. This practice, called soring, may involve fastening heavy chains or similar equipment, called action devices, on a horse's front limbs. As a result of wearing action devices, the horse may suffer intense pain as its forefeet touch the ground. This pain causes it to adopt a high-stepping gait that is highly prized in Tennessee walking horses and certain other breeds. See generally H.R.Rep. No. 1174, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S.Code Cong. & Admin.News 1696, 1699 (Soring "causes the animal to quickly lift its feet and thrust them forward. Also, the horse reaches further with its hindfeet in an effort to take weight off its front feet, thereby lessening the pain."). In the Horse Protection Act, Congress sought to end this practice by forbidding the showing or selling of sored horses. 15 U.S.C. Secs. 1821-1824. Exercising broadly phrased rulemaking power under 15 U.S.C. Sec. 1828, the Secretary issued regulations that prohibited soring devices and other soring methods in both general and specific terms. The general prohibition, 9 C.F.R. Sec. 11.2(a) (1986), states

Notwithstanding the provisions of paragraph (b) of this section [containing specific prohibitions], no chain, boot, roller, collar, action device, nor any other device, method, practice, or substance shall be used with respect to any horse at any horse show, horse exhibition, or horse sale or auction if such use causes or can reasonably be expected to cause such horse to be sore.

The regulations' specific prohibitions include the use of chains weighing more than eight or ten ounces (depending on the age of the horse), rollers weighing more than fourteen ounces, and certain padded shoes on young horses. Id. Sec. 11.2(b). Lighter chains and rollers are not specifically prohibited.

Use of action devices in violation of either the general or specific prohibitions is unlawful under 15 U.S.C. Sec. 1824(7) and may subject the violator to both criminal and civil penalties under 15 U.S.C. Sec. 1825. Under the general prohibition, however, there is no penalty unless the use of the device is shown to have caused soreness or the device can "reasonably be expected to cause" soreness. Use of pain killers may make detection of actual soring difficult. See H.R.Rep. No. 1174, 94th Cong., 2d Sess. 4, 11, reprinted in 1976 U.S.Code Cong. & Admin.News 1696, 1699, 1706. The regulations give no guidance as to when a device not specifically prohibited may reasonably be expected to cause soreness. There are no such definitional difficulties, of course, when a violation involves a device specifically prohibited.

The Association here contends that developments since these regulations were originally promulgated have demonstrated their inadequacy and that, accordingly, the Secretary should revise them in a new rulemaking. In fact, in its original rulemaking the agency made quite clear its recognition that the premises for not enacting broader specific prohibitions might erode. In its notice of proposed rulemaking, it stated that it relied on evidence from three test clinics which appeared to exonerate action devices weighing less than those that it proposed to forbid. 43 Fed.Reg. 18,514, 18,516-17 (1978). When the final rule was issued, the agency stated that it would consider prohibiting all action devices and padded shoes if the practice of soring continued. 44 Fed.Reg. 25,172, 25,173-74 (1979). At the same time it also mentioned that the agency had recently commissioned "a study of soring methods and techniques at a major university" that might eventually result in further changes in the regulations. Id. at 25,174.

This study was conducted at the Auburn University School of Veterinary Medicine between September 1978 and December 1982. Joint Appendix ("J.A.") at 32. The Auburn study evaluated use of eight- and ten-ounce chains and fourteen-ounce rollers--devices that the agency had declined to prohibit on the grounds that they did not cause soring when properly used under actual training conditions. 43 Fed.Reg. at 18,516-17. The study concluded that ten-ounce chains caused lesions, bleeding, edema, ¹ and inflammation. J.A. at 38- 39. It also considered the effects of eight- and ten-ounce chains and fourteen-ounce rollers on scarred horses, and found that these devices caused raw lesions. Id. at 43-46. The effects of these devices thus fell within the statutory definition of sore. 15 U.S.C. Sec. 1821(3) ("The term 'sore' when used to describe a horse means that [as a result of any substance or device used on a horse's limb] such horse suffers, or can reasonably be expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving...."). In tests of two-, four-, and six-ounce chains, however, the study found no harmful effects. J.A. at 46. The Auburn study also made preliminary findings on the effects of padded shoes, suggesting they caused problems not suspected at the time of the initial rulemaking. Compare J.A. at 48-50 with 44 Fed.Reg. at 25,174. The Association relies on these results in challenging the Agriculture Department's regulations.

Even before the Auburn study was completed, however, the agency considered revising its regulations on action devices. In a May 1981 letter to the Administrator of the Animal and Plant Health Inspection Service ("APHIS"), the Agriculture Department's Office of General Counsel recognized that soring had not been eliminated and argued that the gaps in the regulations were "undermining the Department's ability to achieve effective enforcement of the law and ... preventing the attainment of the goal Congress ha[d] set." J.A. at 73. The letter cited administrative cases interpreting the regulations to allow soring with "legal" action devices, i.e., those not covered by the specific prohibitions. J.A. at 73-75.

Bureaucratic activity surged briefly, then ebbed. The Administrator of APHIS endorsed the letter from the Office of General Counsel, "OGC's comments make sense," and asked his staff for recommendations on possible changes. J.A. at 73, 77. In early 1982, representatives of the Association met with the Administrator to propose a ban on all action devices and pads. See id. at 88. In March, the Administrator informed the group by letter that the agency's Veterinary Services staff had already prepared a justification for such a ban and was currently drafting a proposed rulemaking to implement it. Id. In July, he confirmed that such regulations had been drafted and that the agency had intended to publish the proposals "as soon as possible." Id. at 89. But, he reported, these plans were now being held in abeyance in order to observe the "self-regulation efforts of the industry." Id.

In March 1984, agency officials met with representatives of the walking horse industry, the Association, and others to discuss enforcement of the Act. The Association again requested a rulemaking. Id. at 85-86. In a letter to the Association discussing this meeting, the Deputy Administrator of Veterinary Services wrote, "The apparent inconsistency of the current regulations regarding the weight of action devices with the law and research performed at Auburn University has been a matter of concern for Veterinary Services and the Office of the General Counsel for some time." Id. at 90. Nevertheless, he reported that the agency would withhold publication of the proposed rule pending further studies by the industry. Id. He also reported the industry representatives' remark "that the allowable weight of action devices could not be lowered and still retain the desired gait." Id. Perhaps supposing that industry approval was required for any change in the regulations, the Deputy Administrator said, "We are ... disappointed that no consideration has been given to restricting the weight of action devices." Id.

II. THE STANDARD OF REVIEW

The reviewability of a refusal to institute a rulemaking has been a source of some uncertainty since the Supreme Court held refusals to take ad hoc enforcement steps presumptively unreviewable in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). See Oil, Chemical and Atomic Workers International Union v. Zegeer, 768 F.2d 1480, 1484 (D.C.Cir.1985). Although the Court expressly noted that Chaney did not "involve the question of agency discretion not to invoke rulemaking proceedings," 470 U.S. at 825 n. 2, 105 S.Ct. at 1652 n. 2, its reasoning applies to some extent to a refusal to institute a rulemaking. Our examination of Chaney persuades us, however, that it does not bar review of the agency's decision here.

The Chaney Court relied on three features of nonenforcement decisions in arriving at its negative presumption. First,...