Young v. U.S. Dept. of Agriculture, No. 94-40818

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore REAVLEY and EMILIO M. GARZA; REAVLEY; EMILIO M. GARZA
Citation53 F.3d 728
PartiesBill YOUNG and Floyd Sherman, Petitioners, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.
Decision Date07 June 1995
Docket NumberNo. 94-40818

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.

Page 729

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

Page 730

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.

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.

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...

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7 practice notes
  • Turco v. Hoechst Celanese Chemical Group, Inc., Civ. A. No. G-95-007.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • December 5, 1995
    ...to Turco, and to retrain him, merely because he was disabled and no longer could perform his job as process operator. Cf. Dutcher, 53 F.3d at 728 (holding that a welder with a permanently injured arm, who was laid off during a reduction in force, was not discriminatorily denied reinstatemen......
  • Knapp v. U.S. Dep't of Agric., No. 14-60002
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 31, 2015
    ...evidence and findings of the [JO] more critically than it would if the [JO] and the ALJ were in agreement." Young v. U.S. Dep't of Agric., 53 F.3d 728, 732 (5th Cir. 1995) (second and third alterations in original) (internal quotation marks and citations omitted); see also In re Knapp, AWA ......
  • Knapp v. U.S. Dep't of Agric., No. 14–60002.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 31, 2015
    ...evidence and findings of the [JO] more critically than it would if the [JO] and the ALJ were in agreement.” Young v. U.S. Dep't of Agric., 53 F.3d 728, 732 (5th Cir.1995) (second and third alterations in original) (internal quotation marks and citations omitted); see also In re Knapp, AWA D......
  • Zarzycki v. United Technologies Corp., No. 3:96-CV-1782 (GLG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • December 18, 1998
    ...new hires differed depending on the elements of the specific jobs. Wiechetek Dep. of 6/13/97, Def.'s Mem. Ex. G, at 56. 8. See Dutcher, 53 F.3d at 728 (noting that an employee did not offer any evidence that her employer perceived her as being unable to work in the class of jobs as a 9. See......
  • Request a trial to view additional results
7 cases
  • Turco v. Hoechst Celanese Chemical Group, Inc., Civ. A. No. G-95-007.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • December 5, 1995
    ...to Turco, and to retrain him, merely because he was disabled and no longer could perform his job as process operator. Cf. Dutcher, 53 F.3d at 728 (holding that a welder with a permanently injured arm, who was laid off during a reduction in force, was not discriminatorily denied reinstatemen......
  • Knapp v. U.S. Dep't of Agric., No. 14-60002
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 31, 2015
    ...evidence and findings of the [JO] more critically than it would if the [JO] and the ALJ were in agreement." Young v. U.S. Dep't of Agric., 53 F.3d 728, 732 (5th Cir. 1995) (second and third alterations in original) (internal quotation marks and citations omitted); see also In re Knapp, AWA ......
  • Knapp v. U.S. Dep't of Agric., No. 14–60002.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 31, 2015
    ...evidence and findings of the [JO] more critically than it would if the [JO] and the ALJ were in agreement.” Young v. U.S. Dep't of Agric., 53 F.3d 728, 732 (5th Cir.1995) (second and third alterations in original) (internal quotation marks and citations omitted); see also In re Knapp, AWA D......
  • Zarzycki v. United Technologies Corp., No. 3:96-CV-1782 (GLG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • December 18, 1998
    ...new hires differed depending on the elements of the specific jobs. Wiechetek Dep. of 6/13/97, Def.'s Mem. Ex. G, at 56. 8. See Dutcher, 53 F.3d at 728 (noting that an employee did not offer any evidence that her employer perceived her as being unable to work in the class of jobs as a 9. See......
  • Request a trial to view additional results

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