Crawford v. U.S. Dept. of Agriculture

• Decision Date: 31 March 1995
• Docket Number: No. 93-1852,93-1852
• Parties: Sheryl CRAWFORD, Petitioner, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 46

50 F.3d 46

311 U.S.App.D.C. 75

Sheryl CRAWFORD, Petitioner, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.

No. 93-1852.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 7, 1995.

Decided March 31, 1995.

Petition for Review of an Order of the United States Department of Agriculture.

John M. Harmon, Austin, TX, argued the cause and filed the briefs, for petitioner.

Jeffrey A. Knishkowy, Atty., U.S. Dept. of Agriculture, Washington, DC, argued the cause, for respondent. With him on the brief, was James M. Kelly, Associate Gen. Counsel, U.S. Dept. of Agriculture, Washington, DC. Raymond W. Fullerton, Washington, DC, entered an appearance.

Before: WALD, SILBERMAN, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Petitioner, a horse owner, challenges a civil penalty imposed under the Horse Protection Act for "allowing" the entry of a "sored" Tennessee Walking horse in a horse show. We deny the petition for review.

I.

Petitioner Sheryl Crawford owns and shows "Supreme Image," a Tennessee Walking horse. Such horses are prized for their distinctive high-stepping gait. Unfortunately, the competitive pressures of the Tennessee Walking horse industry have led some owners to "sore" their horses, inflicting injuries on the horses' forelimbs to alter their gait and improve their performance at horse shows. American Horse Protection Ass'n v. Lyng, 812 F.2d 1-2 (D.C.Cir.1987). Congress responded in 1970 with the Horse Protection Act (HPA or Act), 15 U.S.C. Sec. 1821 et seq. (1988), which outlaws such practices. ¹ The Act prohibits--with respect to "any horse which is sore"--the "showing or exhibiting," "entering for the purpose of showing or exhibiting in any horse show or horse exhibition," and the "allowing" of the entry, showing or exhibition of such a horse. 15 U.S.C. Sec. 1824(2)(A)-(D). Per Congress' 1976 amendments to the HPA, the government need not prove intent to sore in order to establish civil--as opposed to criminal--liability. ² See Thornton v. United States Dep't of Agriculture, 715 F.2d 1508, 1511-12 (11th Cir.1983).

Petitioner entered "Supreme Image" in the Belfast Lions Club Horse Show in Belfast, Tennessee, on August 1, 1986. Supreme Image was trained by Cecil Jordan; petitioner testified that she had specifically instructed Jordan not to sore the horse. Petitioner paid the entry fee and intended to ride Supreme Image in the show. Upon Jordan's presentation of the horse to the Designated Qualified Person (DQP) prior to the show, however, Supreme Image was rejected for the competition. ³ Two Department of Agriculture veterinarians, Knowles and Riggins, responsible for monitoring the DQPs and compliance with the Act, then examined Supreme Image and determined that the horse was sore within the Act's definition. The veterinarians recorded their observations.

On September 28, 1990, more than four years after the show, the Administrator of the Animal and Plant Health Inspection Service (APHIS), an agency within the Department, instituted a disciplinary proceeding under the HPA against petitioner for "allowing" the entry of a sored horse in the Belfast show. A hearing was held on June 27, 1991, at which petitioner disputed both whether Supreme Image was sore, and whether Crawford had "allowed" the entry of a sore horse. In his Initial Decision and Order filed January 30, 1992, the ALJ discounted the reliability of the government's supporting documentation establishing that Supreme Image was sore, and dismissed the complaint against petitioner. The ALJ determined the agency did not meet its burden of proving that Supreme Image was "sore"; and he therefore did not reach the question whether Crawford had "allow[ed]" the entry of a sored horse. Although he admitted the reports and affidavits of the Department veterinarians as "probative hearsay," the ALJ found that the documents were not supported by any present recollection, and that the government had presented no corroborating notes or other verification of the accuracy of the veterinarians' examinations. In the absence of independent indicia of trustworthiness of the "hearsay" forms and affidavits, he thought the documents were insufficient to make out the government's case.

The Administrator appealed the Initial Decision to the Department's judicial officer, who vacated the ALJ's decision and remanded, ordering the ALJ to reweigh the evidence of soring. The judicial officer concluded that the ALJ had asked for too much, as the APA contemplates reliance upon past recollections recorded as "reliable, probative and substantial evidence." 5 U.S.C. Sec. 556(d). In his Revised Order of January 29, 1993, the ALJ determined that petitioner violated the Act by "allow[ing] a horse owned by her to be entered in a show while the horse was sore." The ALJ assessed a $2,000 civil penalty and disqualified Crawford from showing, exhibiting, entering horses or otherwise participating in horse shows or auctions for one year. Petitioner's appeal to the Department's judicial officer was denied, and this petition for review of the Department's final order followed.

II.

Petitioner raises two arguments. She challenges the Department's finding that the horse was sore as lacking substantial evidence on the whole record, and also disputes the Department's conclusion that she "allowed" the entry of a sored horse--which involves more a question of statutory interpretation than a finding of historical fact. As to the first argument, petitioner urges us, as she did the Department, to reject the documentary evidence prepared by the Department's veterinarians and offered by the Administrator. The very night of the examination in question, however, Dr. Riggins, one of the two examining veterinarians, filled out a departmental form entitled "Summary of Alleged Violations" which described the horse's reaction to the doctor's "digital palpation," i.e., pressing on the horse's forelimbs to test for pain response. The summary report, stating that the horse reacted repeatedly to the palpation with a pain response and diagraming the location of the soreness, was signed by both veterinarians. Shortly thereafter both doctors prepared and signed affidavits describing the examination (Dr. Knowles three days later on August 4, and Dr. Riggins on August 15).

To be sure, at the hearing four years later, neither doctor had an independent recollection of the events. But contrary to petitioner's contention, administrative agencies are not barred from reliance on hearsay evidence. See, e.g., Richardson v. Perales, 402 U.S. 389, 405-06, 91 S.Ct. 1420, 1429-30, 28 L.Ed.2d 842 (1971). Such evidence need only bear satisfactory indicia of reliability, Hoska v. United States Dep't of the Army, 677 F.2d 131, 138 (D.C.Cir.1982), and can constitute substantial evidence if reliable and trustworthy. Johnson v. United States, 628 F.2d 187, 190-91 (D.C.Cir.1980). Nor are the minor inaccuracies in the report--a wrongly recorded digit of the horse's identification number--of such significance as to undermine the document's reliability since the horse was otherwise correctly identified. Four years does seem a long time to await an adjudication. Yet the veterinarians, who examine hundreds of horses at many horse shows--as was brought out at oral argument--would likely forget an actual examination in a much shorter period, so the delay did not prejudice petitioner nor does it appear relevant to the hearsay issue.

Petitioner offered her own testimony and that of her husband, her trainer, and a friend, as to the horse's condition and the circumstances surrounding the examination. Of those witnesses only petitioner observed the veterinarians' examination of the horse (it is perhaps noteworthy that after the DQP rejected Supreme Image, the trainer left the examination area). The others merely testified as to alternative reasons for the horse's reaction to diagnosis, that the horse was agitated because it had been transported with a mare in season and that the examination area, where the horse was required to remain for over an hour, was crowded. Petitioner herself did observe the veterinarians examine the horse and administer digital palpation three times, but she does not contradict directly the doctors' report. She testified only that neither doctor told her the horse was sore. ⁴ But it does not appear that the veterinarians expressed to her any conclusion one way or another.

It is undisputed, then, that the two doctors examined Supreme Image the night of August 1, 1986, after the DQP had rejected the horse for ostensible soreness, and that the doctors' summary report described soreness in the horse's legs per the digital palpation diagnostic procedure. Once the veterinarian's reports, which are essentially uncontradicted, are determined to be admissible we think it impossible to conclude that the Department's ruling is not supported by substantial evidence on the whole record. Trying another approach to discredit the reports, however, petitioner disputes the reliability of digital palpation, at least by itself, as a method of determining whether a horse is sore--despite a Department regulation, 9 C.F.R. Sec. 11.1 (1990), which explicitly approves that technique. Petitioner relies on Congress, which she points out, has expressed the same concern as does petitioner. In a recent Appropriations Act, Congress included a rider on the Department's appropriation:

For expenses, ... to carry out inspection, quarantine, and regulatory activities; ... $432,900,000, ... provided further, that none of these funds shall be used to pay the salary of any Department Veterinarian or Veterinary Medical Officer who, when conducting inspections at horse shows, exhibitions, sales, or auctions under the Horse Protection Act, as amended (15 U.S.C. 1821-1831), relies solely on the use of digital palpation as the only diagnostic test...