Back v. United States Dep't of Agriculture, No. 10-3455

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtJANE B. STRANCH
Docket NumberNo. 10-3455
PartiesKIMBERLY COPHER BACK; RICHARD EVANS, Petitioners, v. UNITED STATES DEPARTMENT OF AGRICULTURE; UNITED STATES OF AMERICA, Respondents.
Decision Date14 September 2011

KIMBERLY COPHER BACK; RICHARD EVANS, Petitioners,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE; UNITED STATES OF AMERICA, Respondents.

No. 10-3455

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Dated: September 14, 2011


NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0671n.06

ON PETITION FOR REVIEW OF AN ORDER OF THE
SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE

OPINION

Before: CLAY and STRANCH, Circuit Judges; BARRETT, District Judge.*

JANE B. STRANCH, Circuit Judge. Petitioners Kimberly Copher Back and Richard Evans seek review of a final decision of the Secretary of the Department of Agriculture ("USDA") concluding that they violated provisions of the Horse Protection Act of 1970 ("HPA"), 15 U.S.C. §§ 1821-31, by entering and showing a sore horse named Reckless Youth in a horse show. A "sore" horse, as this Court has previously explained, is one "on which chemicals or other implements have been used on its front feet to make the horse highly sensitive to pain causing the horse to lift its feet quickly, reproducing the distinctive, high-stepping gait that show judges look for in Tennessee

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Walking Horses." Derickson v. United States Dep't of Agric., 546 F.3d 335, 337 n.1 (6th Cir. 2008) (internal quotation marks omitted). For the following reasons, we DENY the petition for review.

I. BACKGROUND

On April 20, 2007, Reckless Youth, a Tennessee Walking Horse, was entered in the Spring Jubilee Charity Horse Show in Harrodsburg, Kentucky. The horse was trained by Evans and owned by Back. Prior to the start of the competition, Evans presented the horse for inspection by Greg Williams, a Designated Qualified Person ("Qualified Person") retained by show management to inspect participating horses. Williams, who is not a veterinarian, inspected the horse and found no soreness or any other abnormality that would preclude it from participating in the show.

Back rode the horse during the show and finished in third place. After the show, two USDA Veterinary Medical Officers ("VMOs" or "Vets"), Drs. Miava Binkley and Lynn Bourgeois, independently examined Reckless Youth and concluded that it was "sore" within the meaning of the HPA. Their examination utilized a technique called digital palpation, which involves the application of pressure to a horse's legs and feet to detect any unusual signs of soreness. See 9 C.F.R. § 11.21(a)(2). Binkley and Bourgeois documented their findings on a USDA Summary of Alleged Violations form ("Violations Form") and in affidavits executed the day after the show. When Dr. Binkley digitally palpated Reckless Youth's feet, she found the horse withdrew both front feet several times and did so strongly in response to palpation of one area. Binkley found this to be "a marked pain response."

After finishing her examination, Binkley invited Williams to reexamine the horse. Upon reexamination, Williams again found no sensitivity on the horse's left foot and slight initial response

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on his right foot. Binkley testified that she observed Williams doing his reexamination and, in her view, he applied insufficient pressure when he was doing his palpation. Williams testified to his belief that he applied the appropriate amount of pressure.

Dr. Bourgeois then examined the horse and found results similar to Binkley. According to Bourgeois, digital palpation of several specified parts of the horse's feet "elicited repeated, reproducible pain responses" that were characterized by attempts to withdraw the limb and strong clenching of shoulder and abdominal muscles. He opined that the horse was sored by chronic application of caustic chemicals and overwork in chains. Binkley and Bourgeois both signed the Violations Form, which illustrated the sore locations on the horse's feet.

On October 22, 2007, the Acting Administrator of the USDA's Animal and Plant Health Inspection Service ("APHIS") initiated disciplinary proceedings against Back and Evans. The complaint, in relevant part, alleged that Evans entered Reckless Youth in the Harrodsburg horse show while the horse was sore in violation of 15 U.S.C. § 1824(2)(B), and that Back showed the sore horse in violation of 15 U.S.C. § 1824(2)(A). A hearing was held before an Administrative Law Judge ("ALJ") on February 2, 2009.

On May 12, the ALJ issued an order dismissing the complaint, noting that the Vets relied exclusively on digital palpation to determine whether Reckless Youth was sore. Although the ALJ recognized that "exclusive reliance upon the use of digital palpation to determine whether a horse has been sored has . . . been upheld in numerous cases, including both the Sixth and District of Columbia Circuits," he determined that the USDA's use of the "scientific" technique had never been evaluated using the criteria set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

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113 S. Ct. 2786 (1993). The ALJ then applied the admissibility factors set forth in Daubert, and concluded that the use of palpation evidence to establish soreness is not sufficiently scientific to be a reliable diagnostic means under the Daubert standard. The ALJ discredited the Vets' findings and determined that there was insufficient evidence that Reckless Youth was sore.

The Government filed an appeal with the USDA's Judicial Officer ("JO"), who serves as the Secretary's final...

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