Young v. U.S. Dept. of Agriculture

• Decision Date: 07 June 1995
• Docket Number: No. 94-40818,94-40818
• Parties: Bill YOUNG and Floyd Sherman, Petitioners, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 728

53 F.3d 728

Bill YOUNG and Floyd Sherman, Petitioners, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.

No. 94-40818.

United States Court of Appeals, Fifth Circuit.

June 7, 1995.

John M. Harmon, Boyce C. Cabaniss, Graves, Dougherty, Hearon & Moody, Austin, TX, G. Thomas Blankenship, Indianapolis, IN, for petitioners.

Stephen M. Reilly, Margaret M. Breinholt, Sharlene A. Deskins, Office of the Gen. Counsel, U.S. Dept. of Agriculture, Mike Espy, Secretary of Agriculture, Washington, DC, for respondent.

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

Before REAVLEY and EMILIO M. GARZA, Circuit Judges, and PRADO ^*, District Judge.

REAVLEY, Circuit Judge:

Bill Young and Floyd Sherman petition for review of a decision and order of the United States Department of Agriculture concluding that they entered or allowed entry of a "sored" Tennessee Walking horse in a show in violation of the Horse Protection Act.

BACKGROUND

The Horse Protection Act of 1970 (the "HPA"), 15 U.S.C. Sec. 1821 et seq., prohibits the practice of "soring" the legs of a Tennessee Walking horse through the use of chemicals or mechanical devices. Soring causes the horse to step more quickly and extend his legs farther, enhancing the type of gait prized in a Walking horse. The HPA prohibits the entry into exhibitions, or the "allowing" of entry of any horse that is sore and provides civil and criminal penalties. 15 U.S.C. Sec. 1824(2)(A)-(D), Sec. 1825. The HPA defines "sore" as the following:

(3) [t]he term "sore" when used to describe a horse means that--

(A) an irritating or blistering agent has been applied, internally or externally, by a person to any limb of a horse,

(B) any burn, cut, or laceration has been inflicted by a person on any limb of a horse,

(C) any tack, nail, screw, or chemical agent has been injected by a person into or used by a person on any limb of a horse, or

(D) any other substance or device has been used by a person on any limb of a horse or a person has engaged in a practice involving a horse,

and, as a result of such application, infliction, injection, use, or practice, such horse suffers, or can reasonably be expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting or otherwise moving....

15 U.S.C. Sec. 1821.

The United States Department of Agriculture (the "USDA") implements the HPA. Designated Qualified Persons ("DQPs"), employed by the USDA, examine horses to determine if they are fit for exhibition at a show. The USDA also employs veterinarians called Veterinary Medical Officers ("VMOs") to oversee the DQPs and examine some horses.

Floyd Sherman owned and Bill Young trained a horse named "A Mark for Me." During the pre-show inspection at the Tennessee Walking Horse National Celebration on August 31, 1990 a DQP rejected "A Mark for Me." At this time the USDA's sole technique for determining whether a horse was sore in violation of the HPA was digital palpation (digital palpation consists of pressing the ball of the thumb into the horse's An Administrative Law Judge ("ALJ") dismissed the complaint, finding that an encounter with another horse en route to the pre-show inspection area caused the horse to be highly agitated and explained its reaction to palpation. The USDA appealed to a Judicial Officer ("JO") who reversed. The JO ordered Young and Sherman each to pay a civil penalty of $2000 and disqualified Young and Sherman for one year from the exhibition of horses. Sherman and Young appeal. We reverse.

                forelimbs to test for pain).  The DQP testified that "A Mark for Me" did not show a strong reaction to palpation but that in 1990 the standard for prohibiting a horse from showing was "just about any movement."   The DQP testified that while "A Mark for Me" exhibited "sensitivity," he did not believe the horse to be sore.  Two VMOs immediately examined the horse and concluded that in their opinion the horse was sore.  "A Mark for Me" was disqualified and the USDA filed a complaint against Young and Sherman under the HPA
                

DISCUSSION

Sherman and Young contend that the USDA's decision that they sored "A Mark for Me" was not supported by substantial evidence. The JO's conclusion was based almost solely on the affidavits of the two VMOs and a USDA form entitled "Summary of Alleged Violations" filled out by the two VMOs after their inspection of "A Mark for Me" at the show. The two USDA VMOs recorded their observations of "A Mark for Me" on the summary report the night of the inspection and in individual affidavits completed the next day. These documents indicated that the VMOs concluded that "A Mark for Me" was sore because the horse experienced pain when its hoof areas were palpated. The VMOs testified before the ALJ regarding their conclusions. Their testimony was based on their general practices regarding this type of inspection. Neither VMO had any independent memory regarding their inspection of "A Mark for Me."

Sherman and Young contend that these documents do not constitute substantial evidence because they are unreliable hearsay. They essentially contend that the documents are unreliable because: 1) they were created with a bias towards the Government's position; and 2) the conclusions reached in them are based on an unreliable method of determining whether a horse has been sored.

The HPA states that the "findings of the Secretary shall be set aside if found to be unsupported by substantial evidence." 15 U.S.C. Sec. 1825(b)(2). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 476-78, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). This court has held that in determining whether hearsay can constitute substantial evidence "we must look to those factors which 'assure underlying reliability and probative value' ... to determine whether the hearsay in the present case constitutes substantial evidence." School Bd. v. H.E.W., 525 F.2d 900, 906 (5th Cir.1976) (citing Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1428, 28 L.Ed.2d 842 (1971)).

There is significant evidence in the record indicating that the evidence relied on by the JO and the USDA to support a finding of soreness is lacking in probative value and reliability. See Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 464 (holding that in determining whether an administrative order is based on substantial evidence, the reviewing court must consider "whatever in the record fairly detracts from [the] weight" of the evidence). The VMO's testimony in this case revealed that as a general practice VMOs prepare summary reports and affidavits only when administrative proceedings are anticipated. See Palmer v. Hoffman, 318 U.S. 800, 63 S.Ct. 757, 87 L.Ed. 1163 (1943) (holding that an accident report prepared by a railroad did not carry the indicia of reliability of a routine business record because it was prepared at least partially in anticipation of litigation); United States v. Stone, 604 F.2d 922, 925-26 (5th Cir.1979) (holding that an affidavit prepared by an official of the United States Treasury Department was unreliable because it was prepared in anticipation of litigation). More important, the VMOs admitted that they only included observations indicating that a horse was sore and did not include evidence indicating that a horse was not sore. The VMOs also indicated that they were given instructions regarding how to prepare the documents by USDA attorneys so that the documents would support a USDA complaint under the HPA. Thus, although the authors of the documents may have been objective in forming their opinion (as the JO found), the documents themselves admittedly recorded a biased account of the results of the inspection. We conclude that their probative value is limited.

The reliability of the veterinarians' conclusions recorded in the hearsay documents, based almost exclusively on the results of digital palpation, are also called into question by significant evidence presented at the hearing supporting the conclusion that an observed reaction to digital palpation alone is not a reliable indicator of a sore horse. Several highly qualified expert witnesses for the petitioners testified that soring could not be diagnosed through palpation alone. Petitioners also offered a written protocol signed by a group of prominent veterinarians coming to the same conclusion. The JO's basis for rejecting this evidence seems to be simply that it is contrary to the agency's policies and the agency's prior decisions. ¹ The JO does not point to scientific or medical data supporting the agency's chosen diagnostic technique. See Veal v. Bowen, 833 F.2d 693, 699 (7th Cir.1987) (holding that "[w]here diagnoses are not supported by medically acceptable clinical and laboratory diagnostic techniques, this court need not accord such diagnoses great weight").

Petitioners also point out that Congress noted its disapproval, in an appropriation bill, of soring...