Elliott v. Administrator, Animal and Plant Health Inspection Service, U.S. Dept. of Agriculture

• Decision Date: 30 March 1993
• Docket Number: No. 92-1662,92-1662
• Citation: 990 F.2d 140
• Parties: William Dwaine ELLIOTT, Petitioner, v. ADMINISTRATOR, ANIMAL AND PLANT HEALTH INSPECTION SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE; United States of America, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 140

990 F.2d 140

William Dwaine ELLIOTT, Petitioner, v. ADMINISTRATOR, ANIMAL AND PLANT HEALTH INSPECTION SERVICE UNITED STATES DEPARTMENT OF AGRICULTURE; United States of America, Respondents.

No. 92-1662.

United States Court of Appeals Fourth Circuit.

Argued Feb. 2, 1993.

Decided March 30, 1993.

Philip Leroy Whitson, Charlotte, NC, for petitioner.

Leslie Karen Lagomarcino, Office of Gen. Counsel, U.S. Dept. of Agriculture, argued (James Michael Kelly, Associate Gen. Counsel, Raymond W. Fullerton, Asst. Gen. Counsel, Margaret M. Breinholt, Deputy Asst. Gen. Counsel, Office of Gen. Counsel, U.S. Dept. of Agriculture, Washington, DC, on brief), for respondents.

Before HAMILTON and LUTTIG, Circuit Judges, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.

OPINION

HAMILTON, Circuit Judge:

William D. Elliott ¹ appeals the decision of the Secretary of the United States Department of Agriculture (Secretary) that he violated § 5(2)(B) (codified at 15 U.S.C. § 1824(2)(B)) ² of the Horse Protection Act 84 Stat. 1404 (1970) (codified as amended at 15 U.S.C. §§ 1821 through 1831) (the Act), by entering on three separate occasions, for purposes of showing, Tennessee Walking Horses (Walkers) which were "sore" within the meaning of the Act. ³

On the complaint of the Administrator of the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA), a hearing was held before an Administrative Law Judge (ALJ). The ALJ found in favor of Elliott on the grounds that the Act did not prohibit a horse from being "sore" at the time the three Walkers were inspected by USDA veterinarians and found to be "sore." The APHIS appealed to the Judicial Officer (JO) of the USDA who reversed the decision of the ALJ and found that Elliott had violated the Act. The decision of the JO thus became the final decision of the Secretary.

Elliott appeals, in part, on the grounds that: (1) the Secretary erred in interpreting the Act, (2) the Act was unconstitutionally vague, and (3) the Secretary improperly relied upon an evidentiary presumption.

We find no reversible error in the decision of the Secretary and, accordingly, his decision is affirmed.

I

On June 16, 1988, Elliott, a trainer of Walkers, paid the fee to enter "Mark's Ebony Ace" in the East Tennessee Walking Horse Classic at Gray, Tennessee. The next day, Elliott presented the horse to the Designated Qualified Person (DQP) ⁴ for inspection.

Dr. L.W. Critchfield, a USDA veterinarian, testified that he observed the horse during the DQP's inspection and noted that the horse: (1) exhibited pain response to the DQP's palpation of the horse's forelimbs; (2) was standing in a tucked position, with unusual facial expression; and (3) exhibited other body signs of discomfort. Dr. Critchfield then inspected the horse himself, palpating various locations on the horse's front feet and lower legs while observing the horse's reaction. Mark's Ebony Ace exhibited strong pain responses during Dr. Critchfield's examination. Dr. Critchfield's report on the examination states that the horse stood in a manner which indicated it was in pain, and, upon palpation, reflexively tightened its abdominal muscles, strongly tried to move its leg away, shuffled its rear feet forward, reared upward, and then sagged back on its hindquarters. Dr. Critchfield testified at the hearing that such pain responses indicated that "something was done to the horse [to cause the pain]," (J.A. 72) and that this pain was not caused by other potential causes such as infection, "a stone bruise," or "founder." (J.A. 74).

Another USDA veterinarian, Dr. George Clawson, before learning of Dr. Critchfield's conclusion and without seeing his examination, independently examined Mark's Ebony Ace and got the same strong pain responses upon palpation of the front legs. Both doctors separately concluded that the horse was indeed "sore" as defined by the Act.

On June 8, 1989, Elliott paid the fee to enter "Delight's Big Boy" in a show in Dallas, North Carolina. Elliott's employee presented the horse for its inspection on June 10. The DQP first examined the horse and determined it to be "sore." USDA veterinarians Dr. David Kelly and Dr. William J. Martin independently examined the horse by palpating and examining for hair loss, tendon structure, lesions, or discoloration. Dr. Martin noted:

the skin of the [lower leg] appeared bright pink similar to a fair skinned individual who is sun burned. The hair coat was very sparse indicating, in my opinion, excessive wear by the use of action devices.... The posterior [lower leg] of the right forefoot was similarly colored and had hair loss identical to the left forefoot.

(Affidavit, J.A. 251). Dr. Martin further testified that the horse experienced extreme pain in both forelimbs and suffered from inflammation of the muscles. Dr. Kelly testified that the presence of pain in both of the horse's front legs was not the result of some type of accidental injury. Each veterinarian independently found the horse to be "sore" as the result of action devices or caustic chemicals.

On August 6, 1990, Elliott paid the fee to enter "This is It" in the Tennessee Walking Horse National Celebration at Shelbyville, Tennessee. Elliott presented the horse for inspection on August 24, 1990. Dr. Clawson observed the horse react as if in pain during the DQP's examination. The DQP rejected the horse as "sore" on both front feet. Dr. Clawson conducted an independent examination and noted that the horse exhibited pain responses to his palpation. Dr. Critchfield also noted "extreme pain" responses and both doctors concurred in the conclusion that the horse was "sore." Dr. Critchfield testified that such a reaction indicated that the horse was deliberately treated to cause the pain.

An administrative proceeding was held on January 31, 1990 on the three alleged violations of 15 U.S.C. § 1824(2)(B), i.e. "entering for the purposes of showing ... any horse which is sore...." Elliott admitted that he was the horses' trainer and that he "paid the entry fee and entered the horses in their respective horse shows." (Appellant's Brief 4). He denied that the horses were "sore" when entered or that it was proven they were "sore" at all. Elliott also argued that the Act was unconstitutional because it discriminated against owners and trainers of Walkers, because "entering" is vague, and because the Act creates a presumption that a horse is "sore" when the two forelegs are "abnormally sensitive."

The ALJ found that testimony established that the three horses were "sore" within the meaning of the Act when examined by the USDA veterinarians. He found that at the time of inspection the horses had already been "entered" because the respective horses were registered at that point for the show and that the Act did not cover the time period after entering and before showing. The ALJ, therefore, dismissed the complaint.

The APHIS appealed the decision to the JO. The JO determined that "entering" a horse included all those activities required to be completed before the horse could be shown, including inspection, not just registration. The JO stated:

the entering process is [not] somehow completed at a point certain sometime after the horse is signed in for the show, on the one hand, and the pre-show clearing by the Show-Steward or Veterinarian, on the other. To the contrary, the entering of the horse is a continuing process, not an event, and includes all activities required to be completed before a horse can actually be shown or exhibited.

In re Elliott, No. 90-20, slip op. (Dept.Agric. May 14, 1992). The JO reasoned that including the initial sign-up in the entering process, but excluding the pre-show clearance examination would provide a "window-of-opportunity" to make a horse "sore," and neither the plain language of the Act allows this result nor could Congress have intended this result. The JO also rejected Elliott's arguments that the Act violated the Constitution because it was vague, discriminatory, or because it utilized a rebuttable presumption that a horse is "sore" when the horse is "abnormally sensitive" in both forelimbs. ⁵

The JO imposed upon Elliott the maximum civil penalty of $2,000 for each of the three violations and a disqualification period of five years for each violation, to run consecutively. This appeal followed.

II

A court's standard of review of agency decisions is to determine if the agency action is consistent with the authority granted by Congress and is supported by substantial evidence. See, e.g., Universal Camera Corp. v. Labor Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938). Substantial evidence is more than a scintilla but less than a preponderance. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966). Even if we were to reach a different conclusion from the agency, the agency's reasonable choice, supported by substantial evidence, may not be overturned. Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026-27, 16 L.Ed.2d 131 (1966).

With respect to an agency's interpretation of a statute, if a statute is plain on its face, there is no room for a contrary agency interpretation. When we review an agency's interpretation of a statute which is not plain on its face, we look first to the intent of Congress. If that intent is clear, then we and the agency are bound to give effect to it. Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). If Congress explicitly leaves a gap in the legislation, then the agency has authority to fill that gap and the agency is entitled to deference...