Appendix — Reinhart v. Department of Agriculture
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OPMOE OF THE @LBRK
In the Supreme Court of the United States
WILLIAM J. REINHART, PETITIONER
V.
UNITED STATES DEPARTMENT OF
AGRICULTURE, RESPONDENT
ON PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE UNITED STATES
APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI
William J. Reinhart, Pro Se
1502 Harrison Road
Murfreesboro, TN 37128
(615) 890-1199
Theodore B. Olson, Solicitor General of the United States
Room 5614, Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
Jel
TABLE OF CONTENTS
Page
Appendix A - United States Court of Appeals for the Sixth
Circuit, No. 01-3283, William J. Reinhart v. United States
Department of Agriculture, Order, Sept. 24, 2002 ...... 1
Appendix B - United States Court of Appeals for the Sixth
Circuit, No. 01-3283, William J. Reinhart v. United States
Department of Agriculture, Opinion, July 10,2002 .. 2-6
Appendix C - United States Court of Appeals for the Sixth
Circuit, No. 01-3283, William J. Reinhart v. United States
Department of Agriculture, Order, July 26,2001 ...... 7
Appendix D - United States Court of Appeals for the Sixth
Circuit, No. 01-3283, William J. Reinhart v. United States
Department of Agriculture, Order, July 6,2001 ....... 8
Appendix E - United States Department of Agriculture Before the
Secretary of Agriculture, HPA Docket No. 99-0013, In
Re: William J. Reinhart & Reinhart Stables, Respondents,
Stay Order, Fume 20, 200) ..ccccccccsecscsscens 9-10
Appendix F - United States Department of Agriculture Before the
Secretary of Agriculture, HPA Docket No. 99-0013, In
Re: William J. Reinhart & Reinhart Stables, Respondents,
Order Denying William J. Reinhart’s Petition for
Reconsideration, January 23, 2001............. 11-35
Footnotes - Appendix F .... cc ccccccccccccscce 36 - 41
Appendix G - United States Department of Agriculture Before the
Secretary of Agriculture, HPA Docket No. 99-0013, In
Re: William J. Reinhart & Reinhart Stables, Respondents,
Decision & Order, November 9, 2000 .......... 42 - 92
Footnotes - Appendix G .............0eeeeees 93 - 100
Appendix H - United States Department of Agriculture Before the
Secretary of Agriculture, HPA Docket No. 99-0013, In
Re: William J. Reinhart & Reinhart Stables, Respondents,
Decision & Order, June 5, 2000 ............. 101-113
Appendix - The Atlanta Protocol, August 7,1991 .... 114-117
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 01-3283
WILLIAM J. REINHART, PETITIONER
v. |
UNITED STATES DEPARTMENT OF AGRICULTURE,
RESPONDENT
ORDER
Filed September 24, 2002
BEFORE: CLAY and GILMAN, Circuit Judges; and
HAYNES,* District Judge
The court having received a petition for rehearing en banc,
and the petition having been circulated not only to the original
panel members but also to all other active judges of this court, and
no judge of this court having requested a vote on the suggestion for
rehearing en banc, the petition for rehearing has been referred to
the original panel.
The panel has further reviewed the petition for rehearing
and concludes that the issues raised in the petition were fully
considered upon the original submission and.decision of the case.
Accordingly, the petition is denied.
ENTERED BY ORDER OF THE COURT
/S(LEONARD GREEN, CLERK
LEONARD GREEN, CLERK
*Hon. William J. Haynes, Jr., United States District Judge for the
Middle District of Tennessee, sitting by designation.
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 01-3283
WILLIAM J. REINHART, PETITIONER
v.
UNITED STATES DEPARTMENT OF AGRICULTURE,
RESPONDENT
Not Recommended for Full-Text Publication. Sixth Circuit Rule
28(g) limits citation to specific situations in the Sixth Circuit. If
cited, a copy must be served on other parties and the Court. This
notice is to be prominently displayed if this decision is reproduced.
On appeal from the United States Department of Agriculture
Filed July 10, 2002
OPINION
Before: CLAY and GILMAN, Circuit Judges; HAYNES,
District Judge.*
PER CURIAM. William J. Reinhart appeals from an order
entered by the Secretary of the United States Department of
Agriculture (USDA) that imposes civil penalties against him for
violating the Horse Protection Act (HPA). After concluding that
Reinhart violated the HPA by "soring" his Tennessee Walking -
Horse in order to enhance the horse’s performance at an
exhibition, the Secretary fined Reinhart $2,000 and barred him
from participating in any horse exhibition for a period of five years.
The Secretary subsequently denied Reinhart’s petition for
reconsideration of the decision. Reinhart now appeals, contending
*Hon. William J. Haynes, Jr., United States District Judge for the
Middle District of Tennessee, sitting by designation.
that the Secretary’s decision is not supported by substantial
evidence and that the HPA is unconstitutional. For the reasons set
forth below, we DISMISS this appeal as untimely filed.
A party has the right to judicial review of a final
administrative order imposing civil penalties pursuant to the HPA.
15 U.S.C. § 1825(b)(2). To exercise this right, the party must file
a notice of appeal in the United States Court of Appeals for the
circuit in which he resides or has his place of business within 30
days from the date on which the final administrative order was
issued. Id.; United States Dep’t of Agric. V. Kelly, 38 F.3d 999, 1002
(8 Cir. 1994) (holding that the time limit for appealing a HPA
penalty begins on the date that the final order is issued and
docketed).
In the present case, the Secretary issued a final order
imposing penalties against Reinhart under the HPA on January 23,
2001, the date on which Reinhart’s petition for reconsideration was
denied. The 30-day period for filing a notice of appeal therefore
began to run on that date. 7 C.F.R. § 1.146(b) (providing that “the
time for judicial review shall begin to run upon the filing of such
final action on the petition [for rehearing]"). Reinhart filed his
notice of appeal with this court on March 23, 2001, nearly 60 days
after the final order was issued. His notice of appeal was thus
untimely.
The USDA, however, concedes that a clerical error on its
part contributed to Reinhart’s delay in filing his notice of appeal.
Specifically, the USDA’s Office of the Hearing Clerk mistakenly
sent Reinhart a decision from a totally unrelated case rather than
the order denying his petition for reconsideration. The record does
not indicate when Reinhart received this decision, but the USDA
acknowledges that Reinhart notified it of the mistake and that the
decision from his case was then sent out to him on February 15,
2001. Reinhart did not receive this order until February 26, 2001,
34 days after the order was issued and 4 days after the time period
for appealing that order had expired.
Despite the equities that might otherwise allow Reinhart to
pursue his appeal, a statutory provision that sets the time limit for
3
seeking review of an administrative order is "mandatory and
jurisdictional" and "not subject to equitable tolling." Stone v. |
I.N.S., 514 U.S. 386, 405 (1995) (internal quotations omitted)
(holding that the time period for appealing a deportation order is
not tolled by the filing of a motion for reconsideration); Fed. R.
App. P. 26(b)(2) (providing that a federal court of appeals "may
not extend the time to file. . .a notice of appeal from or a petition
to. . .otherwise review an order of an administrative agency. . ."').
Such a time limit must be enforced with "strict fidelity" to its
terms. Stone, 514 U.S. at 405; Kelly, 38 F.3d at 1003 (recognizing
that the time limit for seeking review of an order imposing
penalties pursuant to the HPA “is a jurisdictional requirement that
cannot be modified or waived. . ."). An appeal filed beyond the
applicable time limit must therefore be dismissed even in the face
of apparent injustice or an administrative agency’s obvious
misapplication or violation of substantive law." Brown v. Dir.,
Office of Workers’ Com. Programs, 864 F.2d 120, 124 (11™ Cir.
1989) (holding that the time period for filing an appeal of an
administrative order under the Black Lung Benefits Act is not
subject to equitable tolling). |
ee ee eee ee
The only exception that allows this court to enlarge the time
limit for filing a notice of appeal is the “unique circumstances"
doctrine, a doctrine which applies “where a party has performed _
an act which, if properly done, would postpone the deadline for _
filing his appeal and has received specific assurances by a judicial _
officer that this act has been properly done." Osterneck v. Crnst &
Whinney, 489 U.S. 169, 179 (1989) (holding that the unique-
circumstances doctrine did not apply where the party thathad filed
a late notice of appeal never claimed that a judicial officer made _
any representations regarding the tolling of the applicable time
period). Because Reinhart never received any assurance from a
judicial officer that the time limit for filing his notice of appeal had
been tolled, the unique-circumstances doctrine does not apply to
the present case.
Moreover, the mailing error on the part of the USDA does
not completely excuse Reinhart’s untimely notice of appeal,
because [p]arties have an affirmative duty to monitor the dockets
4
to inform themselves of the entry of orders they may wish to
appeal. ... Therefore, the failure of a court clerk to give notice of
entry of an order is not a ground, by itself, to warrant finding an
otherwise untimely appeal to be timely.
In re Delaney, 29 F.3d 516, 518 (9" Cir. 1994) (internal
quotation marks and citation omitted); Polylok Corp. v. Manning,
793 F.2d 1318, 1320 (D.C. Cir. 1986) (holding that the time period
for filing an notice of appeal under Rule 4 of the Federal Rules of
Appellate Procedure "may not be extended on account of the
appellant’s lack of notice") (citing Fed. R. Civ. P. 77(d)). Indeed,
Reinhart received a decision in the unrelated case that was mailed
to him in error well before the period for filing his notice of appeal
had expired. His receipt of this decision gave him at least some
indication that action might have been taken in his case.
Nevertheless, Reinhart neither checked the docket nor called the
clerk to see if the Secretary had ruled on his petition for
reconsideration.
We therefore must conclude that Reinhart’s failure to file a
timely notice of appeal prevents us from exercising jurisdiction to
resolve this.case on the merits. Reinhart maintains, however, that
we should vacate the Secretary’s order even if we decline to
exercise jurisdiction, because the USDA’s mailing error allegedly
deprived him of due process. He also requests that we award him
damages in excess of $100,000 based upon the alleged constitutional
violation. But when this court is presented with an untimely notice
of appeal, ‘the only function remaining to the court is that of
announcing the fact and dismissing the case.’" Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94 (1998) (recognizing that a court
without jurisdiction lacks authority to issue any judicial decision)
(quoting Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1869)).
We are mindful that, in light of the USDA’s mailing error,
the dismissal of Reinhart’s appeal as untimely appears to be a
rather harsh result. Whether equitable considerations should be
taken into account when determining the timeliness of a notice of
appeal, however, is beyond our power to decide. Only the Supreme
Court or Congress can alter the current rule that prohibits
equitable tolling under the circumstances of this case.
Finally, if it is of any consolation tov Reinhart, we would not
have been inclined to set aside the Secretary’s order even if we had
jurisdiction to hear his appeal. The Secretary’s finding that
Reinhart violated the HPA appears to be supported by substantial
evidence, particularly in light of the fact that this court has
specifically held that a finding of soreness for the purposes of the
HPA may be based solely upon the results of palpation. Bobo v.
U.S. Dep’t of Agric., 52 F.3d 1406, 1413 (6" Cir. 1995). Reinhart
also challenges the constitutionality of the HPA, but existing
precedent would have left us hard-pressed to conclude that
Congress exceeded the scope of its power under the Commerce
Clause in enacting the HPA. In any event, the merits of his case
are not properly before us in light of the untimely appeal.
Based on all of the above, we DISMISS this appeal for lack
of jurisdiction.
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ae.
No. 01-3283
WILLIAM J. REINHART, PETITIONER
v.
UNITED STATES DEPARTMENT OF AGRICULTURE,
RESPONDENT
Filed July 26, 2001
ORDER
William J. Reinhart, a Tennessee resident proceeding pro se,
petitions for review of a decision that he violated the Horse
Protection Act, 15 U.S.C. §§ 1821-1831.
The parties are hereby order to submit supplemental briefs
on the issue whether, in the light of United States Dep’t of Agric. V.
Kelly, 38 F.3d 999, 1001-02 (8 Cir. 1994), this court has
jurisdiction over the appeal. See also 15 U.S.C. § 1825(b)(2).
CDS ee
The supplemental briefs shall be filed no more than 14 days
from the date of this order, and they shall not exceed ten pages in
length.- This court’s July 6, 2001, show cause order is hereby
discharged; the question of jurisdiction shall be submitted to the
panel.
ENTERED PURSUANT TO RULE 45(a) RULES OF THE
SIXTH CIRCUIT Leonard Green, Clerk
/s(LEQNARD GREEN
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 01-3283
WILLIAM J. REINHART, PETITIONER
v.
UNITED STATES DEPARTMENT OF AGRICULTURE,
RESPONDENT
Filed July 6, 2001
ORDER
William J. Reinhart, a Tennessee resident proceeding pro se,
petitions for review of a decision that he violated the Horse
Protection Act, 15 U.S.C. §§ 1821-1831.
It appears from the documents before the court that the
final order of the Secretary of the Department of Agriculture was
filed on January 23, 2001, and that Reinhart’s petition for review
was filed in this court on March 20, 2001. The Horse Protection
Act requires a petitioner to file his notice of appeal "within 30 days
from the date of such order and by simultaneously sending a copy
of such notice by certified mail to the Secretary." 15 U.S.C. §
1825(b)(2). It appears that Reinhart’s notice was filed late. United
States Dep’t Agric. V. Kelly, 38 F.3d 999, 1001-02 (8" Cir. 1994).
It is therefore ordered that Reinhart show cause in writing
not later than twenty-one days from the date of this order why
appeal No. 01-3283 should not be dismissed for lack of jurisdiction.
It if further ordered that the briefing schedule be held in
abeyance pending the resolution of the question of jurisdiction.
ENTERED PURSUANT TO RULE 45(a) RULES OF THE
SIXTH CIRCUIT Leonard Green, Clerk
/S/(LEONARD GREEN
I, Kt Betas “att Tei end <6 Us
APPENDIX E
UNITED STATES DEPARTMENT OF AGRICULTURE
BEFORE THE SECRETARY OF AGRICULTURE
HPA Docket No. 99-0013
IN RE:
WILLIAM J. REINHART AND
REINHART STABLES,
RESPONDENTS
Filed June 20, 2001
STAY ORDER
On November 9, 2000, I issued a Decision and Order: (1)
concluding that on October 28, 1998, William J. Reinhart, doing
business as Reinhart Stables [hereinafter Respondent], violated the
Horse Protection Act of 1970, as amended (15 U.S.C. §§ 1821-
1831), by entering for the purpose of showing or exhibiting a horse
at the National Walking Horse Trainers Show in Shelbyville,
Tennessee, while the horse was sore; (2) assessing Respondent a
$2,000 civil penalty; and (3) disqualifying Respondent for 5 years
from exhibiting, showing, or entering any horse and from
managing, judging, or otherwise participating in any horse show,
horse exhibition, horse sale, or horse auction. In re William J.
Reinhart, 59 Agric. Dec.__, slip op. at 13-14, 70-72 (Nov. 9, 2000).
On November 27, 2000, Respondent filed a petition for
reconsideration of the November 9, 2000, Decision and Order,
which I denied. In William J. Reinhart, 60 Agric. Dec.___ (Jan. 23,
2001) (Order Denying William J. Reinhart’s Pet. for Recons.).
On May 30, 2001, Respondent filed a letter {hereinafter
Motion for Stay] requesting a stay of the Order in Jn re William J.
Reinhart, 59 Agric. Dec.__ (Nov. 9, 2000), pending the outcome of
the proceedings for judicial review. The Administrator, Animal
and Plant Health Inspection Service, United States Department of
.
ss
Agriculture [hereinafter Complainant], failed to file a timely )
response to Respondent’s Motion for Stay. On June 20, 2001, the
Hearing Clerk transmitted the record to the Judicial Officer for a —
ruling on Respondent’s Motion for Stay.
Respondent filed a petition for review of In re William J.
Reinhart, 59 Agric. Dec.___ (Nov. 9, 2000), with the United States —
Court of Appeals for the Sixth Circuit. Reinhart v. United States
Dep’t of Agric., No. 01-3283 (6" Cir. Mar. 20, 2001). In accordance
with 5 U.S.C. § 705, Respondent’s Motion for Stay is granted. The
Order issued in In re William J. Reinhart,59 Agric. Dec.___ (Nov.
9, 2000), is hereby stayed pending the outcome of proceedings for
judicial review.
This Stay Order shall remain effective until it is lifted by the
Judicial Officer or vacated by a court of competent jurisdiction.
Done at Washington, DC
June 20, 2001
/s/William G. Jenson
William G. Jenson
Judicial Officer
APPENDIX F
UNITED STATES DEPARTMENT OF AGRICULTURE
BEFORE THE SECRETARY OF AGRICULTURE
HPA Docket No. 99-0013
IN RE:
WILLIAM J. REINHART AND
REINHART STABLES,
RESPONDENTS
Filed January 23, 2001
Order Denying William J. Reinhart’s Petition for Reconsideration
Procedural History
The Administrator, Animal and Plant Health Inspection
Service, United States Department of Agriculture [hereinafter
Complainant], instituted this disciplinary administrative
proceeding by filing a Complaint on March 10, 1999. Complainant
instituted the proceeding under the Horse Protection Act of 1970,
as amended (15 U.S.C. §§ 1821-1831) [hereinafter the Horse
Protection Act], and the Rules of Practice Governing Formal
Adjudicatory Proceedings Instituted by the Secretary Under
Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of
Practice]. Complainant alleges that on October 28, 1998, William
J. Reinhart [hereinafter Respondent Reinhart] allowed the entry
ofa horse called "Double Pride Lady" as entry number 146 in class
number 21 at the National Walking Horse Trainers Show in
Shelbyville, Tennessee, for the purpose of showing or exhibiting
Double Pride Lady, while Double Pride Lady was sore, in violation
of section 5(2)(D) of the Horse Protection Act (15 U.S.C. §
1824(2)(D)) (Compl. { 3).
On April 2, 1999, Respondent Reinhart filed a Response to
the Complaint. In his Response, Respondent Reinhart admits he
is the owner of Double Pride Lady and admits he allowed the entry
of Double Pride Lady at the National Walking Horse Trainers
11
Show in Shelbyville, Tennessee. However, Respondent Reinhart |
denies Double Pride Lady was sore, in violation of section 5(2)(D)
of the Horse Protection Act (15 U.S.C. § 1824(2)(D)), when he |
allowed the entry of Double Pride Lady at the National Walking |
Horse Trainers Show in Shelbyville, Tennessee. (Response.)
On June 28, 1999, Complainant filed a Motion to Amend
Complaint and an Amended Complaint. Complainant moved to
amend the Complain‘ to add Reinhart Stables as a respondent
(Motion to Amend Compl. 42). On August 5, 1999, Respondent
Reinhart filed an untitled document in which he opposed
Complainant’s Motion to Amend Complaint. On August 24, 1999,
Administrative Law Judge Edwin S. Bernstein (hereinafter the
ALF] granted Complainant’s Motion to Amend Complaint to be
Respondent Reinhart’s and Reinhart Stables’ [hereinafter
Respondents] Answer to the Amended Complaint (Order Granting
Complainant’s Motion to Amend Complaint).'
The Amended Complaint alleges that on October 28, 1998,
Respondents entered and allowed the entry of Double Pride Lady
as entry number 146 in class number 21 at the National Walking
Horse Trainers Show in Shelbyville, Tennessee for the purpose of
showing or exhibiting Double Pride Lady, while Double Pride Lady
was sore, in violation of section 5(2)(B) and (D) of the Horse
Protection Act (15 U.S.C. § 1824(2)(B), (D)) (Amended Compl. 4
6).
The ALJ presided at a hearing in Nashville, Tennessee, on
October 13 and 14, 1999. Colleen A. Carroll, Office of the General
Counsel, United States Department of Agriculture, represented
Complainant. Respondent Reinhart represented Reinhart Stables
and himself.
On December 10, 1999, Respondents filed a Post-Hearing
Brief. On December 27, 1999, Complainant filed Complainant’s
Proposed Findings of Fact and Conclusions of Law and
Memorandum of Point and Authorities in Support Thereof
[hereinafter Complainant’s Post-Hearing Brief]. On January 10,
2000, Complainant filed Complainant’s Reply to Respondents’
Post-Hearing Brief. On January 27, 2000, Respondents filed a
12
Motion for Dismissal and Reply Brief of Respondent.
On June 5, 2000, the ALJ issued an Initial Decision and
Order in which the ALJ: (1) concluded that on October 28, 1998,
Respondent Reinhart, acting as an owner of Reinhart Stables,
violated section 5(2)(B) of the Horse Protection Act (15 U.S.C. §
1824(2)(B)) by entering Double Pride Lady as entry number 146 in
class number 21 at the National Walking Horse Trainers Show in
Shelbyville, Tennessee, for the purpose of showing or exhibiting
Double Pride Lady, while Double Pride Lady was sore; (2)
concluded that Reinhart Stables is merely a name under which
Respondent Reinhart does business; (3) assess Respondent
Reinhart a $2,000 civil penalty; and (4) disqualified Respondent
Reinhart for 5 years from exhibiting, showing, or entering any
horse directly or indirectly through any agent, employee, or device,
and from managing, judging, or otherwise participating in any
horse show, horse exhibition, horse sale, or horse auction (Initial
Decision and Order at 4, 13-14).
On July 6, 2000, Respondents appealed to the Judicial
Officer. On September 5, 2000, Complainant filed Complainant’s
Response to Respondents’ Appeal of Decision and Order and
Complainant’s Appeal of Decision and Order. On September 27,
2000, Respondents filed Respondent’s Response to Complainant’s
Response to Respondent’s Appeal of Decision and Order’ and
Respondent’s Response to Complainant’s Appeal of Decision and
Order.
On October 2, 2000, Respondents filed a motion requesting
a list of citations and a motion requesting a transcript of the
hearing. On November 1, 2000, Complainant filed responses to
Respondents’ motion requesting a list of citations and
Respondents’ motion requesting a transcript of the hearing. On
November 3, 2000, the Hearing Clerk transmitted the record of the
proceeding to the Judicial Officer for a decision, a ruling on
Respondents’ motion requesting a list of citations, and a ruling on
Respondents’ motion requesting a transcript of the hearing.
On November 9, 2000, I issued a Decision and Order: (1)
concluding that on October 28, 1998, Respondent Reinhart, doing
13
business as Reinhart Stables, violated section 5(2)(B) of the Horse
Protection Act (15 U.S.C. § 1824(2)(B)) by entering for the purpose
of showing or exhibiting Double Pride Lady as entry number 146
in class number 21 at the National Walking Horse Trainers Show
in Shelbyville, Tennessee, while Double Pride Lady was sore; (2)
concluding that Reinhart Stables is merely a name under which
Respondent Reinhart does business; (3) assessing Respondent
Reinhart a $2,000 civil penalty; (4) disqualifying Respondent
Reinhart for 5 years from exhibiting, showing, or entering any
horse directly or indirectly through any agent, employee, or device,
and from managing, judging, or otherwise participating in any
horse show, horse exhibition, horse sale, or horse auction; (5)
denying Respondents’ motion requesting a list of citations; and (6)
denying Respondents’ motion requesting a transcript of the
hearing. In re William J. Reinhart, 59 Agric. Dec ___, slip op. at
13-14, 66-68, 70-72 (Nov. 9, 2000).
On November 27, 2000, Respondent Reinhart filed a
Petition for Reconsideration of Decision and Order by Judicial
Officer [hereinafter Petition for Reconsideration]. On January 2,
2001, Complainant filed Complainant’s Response to William J.
Reinhart’s Petition for Reconsideration. On January 4, 2001, the
Hearing Clerk transmitted the record of the proceeding to the
Judicial Officer for reconsideration of the November 9, 2000,
Decision and Order.
Complainant’s exhibits are designated by "CX";
Respondents’ exhibits are designated by "RX"; and transcript
references are designated by "Tr."
APPLICABLE STATUTORY AND
REGULATORY PROVISIONS
15 U.S.C.:
TITLE 15 - COMMERCE AND TRADE
CHAPTER 44 - PROTECTION OF HORSES
la
0 Me ee ee ee
§ 1821. Definitions
As used in this chapter unless the context otherwise
requires:
(3) The 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 or 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 of 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, except that such term does
not include such an application, infliction, injection, use or practice
in connection with the therapeutic treatment of a horse by or under
the supervision ofa person licensed to practice veterinary medicine
in the State in which such treatment was given.
§ 1822. Congressional statement of findings
The Congress finds and declares that -
(1) the soring of horses is cruel and inhumane;
(2) horses shown or exhibited which are sore, were such
soreness improves the performance of such horse, compete unfairly
with horses which are not sore;
(3) the movement, showing, exhibition, or sale of sore
horses in intrastate commerce adversely affects and burdens
interstate and foreign commerce;
(4) all horses which are subject to regulation under this
chapter are either in interstate or foreign commerce or
15
substantially affect such commerce; and
(5) regulation under this chapter by the Secretary is
appropriate to prevent and eliminate burdens upon commerce and
to effectively regulate commerce.
§ 1824. Unlawful acts
The following conduct is prohibited:
(2) The (A) showing or exhibiting, in any horse show or
horse exhibition, of any horse which is sore, (B) entering for the
purpose of showing or exhibiting in any horse show or horse
exhibition, any horse which is sore, (C) selling, auctioning, or
offering for sale, in any horse sale or auction, any horse which is
sore, and (D) allowing any activity described in clause (A), (B), or
(C) respecting a horse which is sore by the owner of such horse.
§ 1825. Violations and penalties
(b) Civil penalties; review and enforcement
(1) Any person who violates section 1824 of this title shall be
liable to the United States for a civil penalty of not more than
$2,000 for each violation. No penalty shall be assessed unless such
person is given notice and opportunity for a hearing before the
Secretary with respect to such violation. The amount of such civil
penalty shall be assessed by the Secretary by written order. In
determining the amount of such penalty, the Secretary shall take
into account all factors relevant to such determination, including
the nature, circumstances, extent, and gravity of the prohibited
conduct and, with respect to the person found to have engaged in
such conduct, the degree of culpability, any history of prior
offenses, ability to pay, effect on ability to continue to do business,
and such other matters as justice may require.
(2) Any person against whom a violation is found and a civil
penalty assessed under paragraph (1) of this subsection may obtain
review in the court of appeals of the United States for the circuit in
which such person resides or has his place of business or in the
United States Court of Appeals for the District of Columbia Circuit
16
ee
by filing a notice of appeal in such court within 30 days from the
date of such order and by simultaneously sending a copy of such
notice by certified mail to the Secretary. The Secretary shall
promptly file in such court a certified copy of the record upon
which such violation was found and such penalty assessed, as
provided in section 2112 of title 28. The findings of the Secretary
shall be set aside if found to unsupported by substantial evidence.
(c) Disqualification of offenders; orders; civil penalties
applicable; enforcement procedures
In addition to any fine, imprisonment, or civil penalty
authorized under this section, any person who was convicted under
subsection (a) of this section or who paid a civil penalty assessed
under subsection (b) of this section or is subject to a final order
under such subsection assessing a civil penalty for any violation of
any provision of this chapter or any regulation issued under this
chapter may be disqualified by order of the Secretary, after notice
and an opportunity for a hearing before the Secretary, from
showing or exhibiting any horse, judging or managing any horse
show, horse exhibition, or horse sale or auction for a period of not
less than one year for the first violation and not less than five years
for any subsequent violation. Any person who knowingly fails to
obey an order of disqualification shall be subject to a civil penalty
of not more than $3,000 for each violation. Any horse show, horse
exhibition, or horse sale or auction, or the management thereof,
collectively and severally, which knowingly allows any person who
is under an order of disqualification to show or exhibit any horse,
to enter for the purpose of showing or exhibiting any horse, to take
part in managing or judging, or otherwise to participate in any
horse show, horse exhibition, or horse sale or auction in violation
of an order shall be subject to a civil penalty of not more than
$3,000 for each violation. The provisions of subsection (b) of this
section respecting the assessment, review, collection, and
compromise, modification, and remission of a civil penalty apply
with respect to civil penalties under this subsection.
§ 1828. Rules and regulations
17
The Secretary is authorized to issue such rules and
regulations as he deems necessary to carry out the provisions of this
chaz; er.
15 U.S.C. §§ 1821(3), 1822, 1824(2), 1825(b)(1)-(2), (c), 1828.
9 C.F.R.:
TITLE 9 - ANIMALS AND ANIMAL PRODUCTS
CHAPTER I - ANIMAL AND PLANT HEALTH
INSPECTION SERVICE,
DEPARTMENT OF AGRICULTURE
SUBCHAPTER A - ANIMAL WELFARE
PART 11 - HORSE PROTECTION REGULATIONS
§ 11.1 Definitions.
For the purpose of this part, unless the context otherwise
requires, the following terms shall have the meanings assigned to
them in this section. The singular form shall also impart the plural
and the masculine form shall also impart the feminine. Words of
art undefined in the following paragraphs shall have the meaning
attributed to them by trade usage or general usage as reflected by
definition in a standard dictionary, such as ‘'Webster’s."
Inspection means the examination of any horse and any
records pertaining to any horse by use of whatever means are
deemed appropriate and necessary for the purpose of determining
compliance with the Act and regulations. Such inspection may
include, but is not limited to, visual examination of a horse and
records, actual physical examination ofa horse including touching,
rubbing, palpating and observation of vital signs, and the use of
any diagnostic device or instrument, and may require the removal
of any shoe, pad, action device, or any other equipment, substance
or paraphernalia from the horse when deemed necessary by the
person conducting such inspection.
18
Oo
9 C.F.R. § 11.1
CONCLUSIONS BY THE JUDICIAL OFFICER
Respondent Reinhart raises 24 issues in his Petition for
Reconsideration. First, Respondent Reinhart contends the
administrative proceeding deprives him of property in violation of
the due process clause of the Constitution of the United States (Pet.
For Recons. At 1, 19-20).
The Fifth Amendment to the Constitution of the United
States provides that no person shall be deprived of property
without due process of law. I have reviewed the record in this
proceeding. I find Respondent Reinhart was provided notice and
an opportunity for a hearing and all the process Respondent
Reinhart was due under the due process clause of the Fifth
Amendment to the Constitution of the United States. Therefore,
Respondent Reinhart was not deprived of property without due
process of law.
Second, Respondent Reinhart contends "{t]he only
legitimate function. . .that an administrative law tribunal has in
cases where taking of property is involved is the accumulation of
facts which may be presented to a court of competent jurisdiction
as a basis for a determination of law on the taking of property by
government action."" (Pet. For Recons. At 2.)
The Horse Protection Act provides that the Secretary of
Agriculture may assess a civil penalty against any person who
violates section 5 of the Horse Protection Act (15 U.S.C. § 1824)
and may disqualify a person who has been assessed a civil penalty
from showing or exhibiting any horse and from judging or
managing any horse show, horse exhibition, horse sale, or horse
auction. The alleged violator must be given notice and an
opportunity for a hearing before the Secretary of Agriculture. 15
U.S.C. § 1825(b), (c). Administrative proceedings under the Horse
Protection Act are conducted in accordance with the
Administrative Procedure Act which imposes a number of
procedural requirements. One of these requirements is that, after
the alleged violator is provided with an opportunity for an agency
19
hearing, the agency must issue a decision which includes findings
of fact, conclusions of law, and the reasons or basis for the findings
of fact and conclusions of law, as follows:
§ 557. Initial decisions; conclusiveness; review by agency;
submissions by parties; content of decisions; record
oer
All decisions, including initial, recommended, and tentative
decisions, are a part of the record and shall include a
statement of -
(A) findings and conclusions, and the reasons or
basis therefor, on all material issues of fact, law, or
discretion presented on the record; and
(B) the appropriate rule, order, sanction, relief, or
denial thereof.
5 U.S.C. § 557(c).
Therefore, I disagree with Respondent Reinhart’s
contention that the only legitimate function of the United States
Department of Agriculture in proceedings under the Horse
Protection Act is “the accumulation of facts which may be
presented to a court of competent jurisdiction as a basis for a
determination of law on the taking of property by government
action."
Third, Respondent Reinhart contends the ALJ and the
Judicial Officer exhibited extreme bias by their failures to find facts
concerning Charles L. Thomas’ background, Charles L. Thomas’
examination of Double Pride Lady, and Charles L. Thomas’
determination that Double Pride Lady was not sore (Pet. For
Recons. at 2-3).
Due process requires an impartial tribunal, and a biased
decisionmaker unfairly deprives the litigant of this impartiality.’
However, a substantial showing of legal bias is required to
disqualify an administrative law judge or judicial officer or to
obtain a ruling that the hearing is unfair.‘ Even if I found that the
ALJ and I erroneously failed to find facts concerning Charles L.
20
Thomas’ background, Charles L. Thomas’ examination of Double
Pride Lady, and Charles L. Thomas’ determination that Double
Pride Lady was not sore, that finding alone would not cause me to
conclude that the ALJ and I are biased against Respondent
Reinhart. —
Fourth, Respondent Reinhart contends the Judicial Officer
erroneously found that Charles L. Thomas formed no opinion
regarding whether Double Pride Lady was sore (Pet. For Recons.
at 3-5). Respondent Reinhart cites page 130 of the transcript and
the ALJ’s Initial Decision and Order as support for his assertion
that Charles L. Thomas was of the opinion that Double Pride Lady
was not sore (Pet. For Recons. at 4-5).
I have reviewed page 130 of the transcript and cannot find
any testimony which supports Respondent Reinhart’s assertion
that Charles L. Thomas was of the opinion that Double Pride Lady
was not sore. Moreover, the ALJ does not cite the basis for his
statement that Charles L. Thomas “was of the opinion that [Double
Pride Lady] was not sore" (Initial Decision and Order at 8).
While it is possible to infer from some of Charles L.
Thomas’ testimony that he was of the opinion that double Pride
Lady was not sore (Tr. 127-36, 151), such an inference would be
contrary to Charles L. Thomas’ testimony in which he specifically
addressed the issue regarding whether he formed such an opinion.
Specifically, Charles L. Thomas testified that: he observed Double
Pride Lady on October 28, 1998 but did not examine Double Pride
Lady to determine whether she was sore under the Horse
Protection Act; he formed no opinion regarding whether Double
Pride Lady was sore under the Horse Protection Act; and he could
not state whether Double Pride Lady was sore under the Horse
Protection Act (Tr. 138, 145-50). Therefore, I disagree with
Respondent Reinhart’s contention that my finding that Charles L.
Thomas formed no opinion regarding whether Double Pride Lady
was sore under the Horse Protection Act, is error.
Fifth, Respondent Reinhart asserts the Judicial Officer’s
statement that Charles L. Thomas formed no opinion regarding
whether Double Pride Lady was sore when she was entered in the
21
National Walking Horse Trainers Show demonstrates the Judicial
Officer’s great confusion. Respondent Reinhart states Double
Pride Lady was entered 2 weeks before the National Walking Horse
Trainers Show, and Charles L. Thomas did not see Double Pride
Lady 2 weeks before the National Walking Horse Trainers Show.
(Pet. For Recons. at 4.)
I agree with Respondent Reinhart that there is no evidence
that Charles L. Thomas observed Double Pride Lady 2 weeks prior
to the National Walking Horse Trainers Show. However, I disagree
with Respondent Reinhart’s assertion that I found that Charles L.
Thomas observed Double Pride Lady 2 weeks prior to the National
Walking Horse Trainers Show.
It is well settled that "entry" within the meaning of the
Horse Protection Act is a process, not an event. The process of
“entry" includes all activities required to be completed before a
horse can be shown or exhibited. The process generally begins with
the payment of the fee to enter a horse in a horse show and includes
pre-show examination of the horse by Designated Qualified Persons
or United States Department of Agriculture veterinarians or both.*
The evidence establishes that Charles L. Thomas observed Double
Pride Lady on October 28, 1998, just before Double Pride Lady’s
pre-show examination by two Designated Qualified Persons and
two United States Department of Agriculture veterinarians (Tr.
140-49, 159-66). Thus, Charles L. Thomas observed Double Pride
Lady when she was entered at the National Walking Horse
Trainers Show. Charles L. Thomas testified that, when he
observed Double Pride Lady, he formed no opinion regarding
whether Double Pride Lady was sore under the Horse Protection
Act (Tr. 145-50).
Sixth, Respondent Reinhart contends the Judicial Officer
arbitrarily and capriciously found that Complainant’s Post-
Hearing Brief was time filed (Pet. For Recons. at 5-6).
I disagree with Respondent Reinhart’s contention that I
arbitrarily and capriciously found that Complainant’s Post-
Hearing Brief was timely filed. Respondents raised this same issue
in Respondents’ Petition for Review [hereinafter Respondents’
22
Appeal Petition] (Respondents’ Appeal Pet. at 3). My reasons for
finding that Complainant’s Post-Hearing Brief was timely filed are
set forth in the November 9, 2000, Decision and Order. Jn re
William J. Reinhart, 59 Agric. Dec.___, slip op. at 26-28 (Nov. 9,
2000).
Seventh, Respondent Reinhart contends the Judicial Officer
arbitrarily and capriciously found that Respondent Reinhart’s
response to a motion to lift stay filed in In re Jack Stepp, 57 Agric.
Dec. 297 (1998), aff'd, 188 F.3d 508 (Table), 1999 WL 646138 (6"
Cir. 1999) (not to be cited as precedent under 6" Circuit Rule 206),
was late-filed (Pet. For Recons. at 6).
I did find that Jack Stepp and William Reinhart failed to
file a timely response to a motion to lift stay in In re Jack Stepp, 59
Agric. Dec.___ (Apr. 26, 2000) (Order Lifting Stay). However, my
finding that Jack Stepp and William Reinhart failed to file a timely
response to a motion to lift stay in a prior proceeding is not
relevant to this proceeding.
Respondent Reinhart alleges " [a] pattern of discriminatory
rulings against [him] on filing deadlines in prior proceedings" and
contends that this pattern “is sufficient evidence as part of an
overall argument that [he] was not provided a fair trial in a fair
tribunal" (Pet. for Recons. at 6).
I disagree with Respondent Reinhart’s contention that there
is a pattern of discriminatory rulings against him regarding filing
deadlines in prior proceedings. Moreover, purported
discriminatory rulings against Respondent Reinhart in prior
proceedings are not relevant to this proceeding.
Respondents raised the issue of the disparate application of
section 1.147(g) of the Rules of Practice (7 C.F.R. § 1.147(g))
(which concerns the effective date of filing in administrative
proceedings instituted under the Rules of Practice) in Respondents’
Appeal Petition (Respondents’ Appeal Pet. at 3-5). My reasons for
rejecting Respondents’ contention that 7 C.F.R. § 1.147(g) was
disparately applied to the litigants in this proceeding and in Jn re
23
Jack Stepp, 57 Agric. Dec. 297 (1998), aff’d, 188 F.3d 508 (Table),
1999 WL 646138 (6" Cir. 1999) (not to be cited as precedent under
6" Circuit Rule 206), are set forth in the November 9, 2000,
Decision and Order. In re William J. Reinhart, 59 Agric. Dec.___,
slip op. at 28-32 (Nov. 9, 2000).
Eighth, Respondent Reinhart contends the Judicial Officer
completely misunderstands Carroll v. C.I.R., 71 F.3d 1228 (6" Cir.
1995), cert. denied, 518 U.S. 1017 (1996). Respondent Reinhart
asserts "the Judicial Officer believes the Carroll case imposes the
common law mailbox rule to any filings with any federal court."
Further, Respondent Reinhart asserts Carroll held "the mailbox
rule generally applies to all federal circuits but specifically in the
Sixth Circuit, the filing must be by certified mail as opposed to
general delivery." (Pet. for Recons. at 6.)
As an initial matter, I did not state in the November 9, 2000,
Decision and Order that Carroll “imposes the common law mailbox
rule to any filings with any federal court," as Respondent Reinhart
contends. Moreover, as fully discussed in the November 9, 2000,
Decision and Order, Carroll is not applicable to this administrative
proceeding. In re William J. Reinhart, 59 Agric. Dec.___, slip op.
at 32-33 (Nov. 9, 2000).
Ninth, Respondent Reinhart asserts the record contains
overwhelming evidence that digital palpation is not a reliable
method by which to determine whether a horse is "sore" as defined
in the Horse Protect Act (Pet. for Recons. at 7).
Respondent Reinhart does not cite any part of the record to
support his assertion that the record contains overwhelming —
evidence that digital palpation is not a reliable method by which to
determine whether a horse is sore. Moreover, I cannot locate ©
evidence that supports Respondent Reinhart’s assertion.
Therefore, I reject Respondent Reinhart’s assertion that the
record contains overwhelming evidence that digital palpationis not —
a reliable method by which to determine whether a horse is "sore" |
as defined in the Horse Protection Act.
Tenth, Respondent Reinhart asserts Dr. Slauter and Dr.
Smith testified that they could cite no scientific or clinical evidence
that palpation is a reliable method for detecting sore horses (Pet.
for Recons. at 7).
Respondent Reinhart does not refer to any part of the
transcript to support his assertion that Dr. Slauter and Dr. Smith
testified that they could not cite scientific or clinical evidence that
palpation is a reliable method for detecting sore horses. I find no
testimony by Dr. Smith that he cannot cite scientific or clinical
evidence that palpation is a reliable method for detecting sore
horses. Moreover, I find no testimony by Dr. Slauter that he
cannot cite clinical evidence that palpation is a reliable method for
detecting sore horses. However, Dr. Slauter does indicate that he
cannot cite scientific evidence of the connection between a horse’s
reaction to digital palpation and soring of that horse (Tr. 63). Both
Dr. Slauter and Dr. Smith testified that digital palpation is a
reliable method by which to detect sore horses under the Horse
Protection Act (Tr. 29-30, 106-09). Therefore, ever if Drs. Slauter
and Smith had testified as Respondent Reinhart asserts, such
testimony would not change the disposition of this proceeding.
Eleventh, Respondent Reinhart contends the ALJ
erroneously excluded the Atlanta Protocol (RX 1) (Pet. for Recons.
at 7). I disagree with Respondent Reinhart’s contention that the
ALJ erroneously excluded the Atlanta Protocol. Respondents
raised the issue of the ALJ’s exclusion of the Atlanta Protocol in
Respondents’ Appeal Petition (Respondents’ Appeal Pet. at 5-9).
My reasons for concluding that the ALJ properly excluded the
Atlanta Protocol (RX 1) are set forth in the November 9, 2000,
Decision and Order. In re William J. Reinhart, 59 Agric. Dec. ,
slip op. at 33-40 (Nov. 9, 2000).
Respondent Reinhart also contends the Atlanta Protocol
(RX 1) was admitted in a previous proceeding, Jn re Bill Young, 53
Agric. Dec. 1232 (1994), “even thought the authors of that
document were not present to testify (Pet. for Recons. at 7 n.1).
However, a review of In re Bill Young, 53 Agric. Dec. 1232 (1994),
rev'd, 53 F.3d 728 (5" Cir. 1995), reveals that two of the authors of
the Atlanta Protocol, Dr. Proctor and Dr. Miller, testified in the
25
administrative proceeding.
Twelfth, Respondent Reinhart contends the United States
Department of Agriculture has a "vested and biased interest in its
reliance of digital palpation as they only procedure for detecting
sore horses" (Pet. for Recons. at 8-11).
I disagree with Respondent Reinhart’s contention that the
United States Department of Agriculture has a ''vested and biased
interest in its reliance on digital palpation as the only procedure for
detecting sore horses."' The record does not reveal that the United
States Department of Agriculture has a "vested and biased
interest" in relying on palpation as the sole method to determine
whether a horse is sore under the Horse Protection Act.
The Horse Protection Regulations (9 C.F.R. pt. 11) defines —
the term "inspection" as the examination of a horse by whatever —
means are deemed appropriate and necessary to determine —
compliance with the Horse Protection Act and the Horse Protection
Regulations. The definition of the term “inspection" identifies a
number of methods by which a horse may be inspected to
determine whether the horse is "sore" as defined in the Horse |
Protection Act. 9 C.F.R. § 11.1. This definition of the term ©
"inspection" for the purpose of determining compliance with the —
Horse Protection Act and the Horse Protection Regulations clearly —
establishes that the United States Department of Agriculture does —
not rely on palpation as the sole means by which to determine |
whether a horse is sore under the Horse Protection Act.
Moreover, Dr. Slauter and Dr. Smith did not limit their
inspection of Double Pride Lady to palpation. Drs. Slauter and |
Smith observed Double Pride Lady’s movement and, in part, based —
their determinations that Double Pride Lady was sore on their |
observations of her movement (CX 9, CX 10; Tr. 46, 109-09).
Thirteenth, Respondent Reinhart contends Dr. Slauter’s |
and Dr. Smith’s examinations of Double Pride Lady were not in —
compliance with the Horse Protection Act because the ©
examinations were conducted while Double Pride Lady was ©
standing still (Pet. for Recons. at 11-12).
26
I disagree with Respondent Reinhart’s contention that Dr.
Slauter’s and Dr. Smith’s examinations of Double Pride Lady were
not in compliance with the Horse Protection Act because the
examinations were conducted while Double Pride Lady was
standing still. Respondents raised the issue of Dr. Slauter’s and Dr.
Smith’s examinations of Double Pride Lady in Respondents’
Appeal Petition (Respondents’ Appeal Pet. at 8). My reasons for
rejecting Respondents’ contention that Dr. Slauter’s and Dr.
Smith’s examinations of Double Pride Lady did not comply with
the Horse Protection Act are set forth in the November 9, 2000,
Decision and Order. In re William J. Reinhart, 59 Agric. ee.
slip op. at 40-44 (Nov. 9, 2000).
Fourteenth, Respondent Reinhart asserts that when Drs.
Slauter and Smith palpated Double Pride Lady, they observed
Double Pride Lady’s "conditioned reflex" to training, which had
been activated by Charles L. Thomas’ examination, not a reaction
to pain (Pet. for Recons. at 12).
Respondents presented no evidence to support the claim
that Double Pride Lady’s response to digital palpation by Drs.
Slauter and Smith was a "conditioned reflex" to training activated
by Charles L. Thomas’ examination. Moreover, Respondent
Reinhart raises this argument for the first time in his Petition for
Reconsideration. It is well settled that new arguments cannot be
raised for the first time on appeal to the Judicial Officer.®
Respondent Reinhart has raised the issue of Double Pride Lady’s
“conditioned reflex" too late for me to consider the issue.
Even if I found that Respondent Reinhart had timely raised
the issue of Double Pride Lady’s "conditioned reflex," I would
reject the argument because Dr. Slauter and Dr. Smith testified
that they can distinguish a horse’s response to pain from a horse’s
response to some other condition (Tr. 22-24, 29-30, 98-99).
Moreover, Respondent Reinhart’s theory of Double Pride Lady’s
“conditioned reflex" does not explain Double Pride Lady’s poor
locomotion (CX 9, CX 10; Tr. 46, 108-09).
Fifteenth(sic), Respondent Reinhart contends he did not
violate the Horse Protection Act because he did not present Double
27
ee ee
Pride Lady "in a cruel or inhumane condition" (Pet. for Recons. at
12-14). 4
Section 3 of the Horse Protection Act sets forth
congressional findings (15 U.S.C. § 1822). One of these
congressional findings is that the act of soring horses is cruel and
inhumane (15 U.S.C. § 1822(1)). However, a finding that a
respondent "presented" a horse in a “cruel or inhumane
condition" is not a prerequisite to the conclusion that the
respondent has violated the Horse Protection Act. Complainant —
proved by a preponderance of the evidence’ that Respondent
Reinhart entered Double Pride Lady for the purpose of showing or
exhibiting Double Pride Lady as entry number 146 in class number
21 at the National Walking Horse Trainers Show in Shelbyville,
Tennessee, while Double Pride Lady was sore, which is all that is
necessary for a conclusion that Respondent Reinhart violated
section 5(2)(B) of the Horse Protection Act (15 U.S.C. § 1824
(2)(B)). Therefore, I reject Respondent Reinhart’s contention that
he did not violate the Horse Protection Act because he did not
present Double Pride Lady in a "cruel and inhumane condition."
Sixteenth, Respondent Reinhart contends the Horse 7
Protection Act is an unconstitutional exercise of power under the
Commerce Clause of the Constitution of the United States (Pet. for
Recons. at 12-15).
I disagree with Respondent Reinhart’s contention that the
Horse Protection Act is an unconstitutional regulation ofintrastate —
commerce. Respondents raised this same issue regarding the
constitutionality of the Horse Protection Act in Respondents’
Appeal Petition (Respondents’ Appeal Pet. at 16-27). My reasons
for concluding that the Horse Protection Act is not an —
unconstitutional regulation of intrastate commerce are set forth in
the November 9, 2000, Decision and Order. In re William J.
Reinhart, 59 Agric. Dec.___, slip op. at 20-22 (Nov. 9, 2000).
Seventeenth, Respondent Reinhart contends the conclusion
that he violated section 5(2)(B) of the Horse Protection Act (15
U.S.C. § 1824(2)(B)) is error because Complainant failed to prove |
that Double Pride Lady’s performance would have been improved
28
by soring (Pet. for Recons. at 14).
Section 3 of the Horse Protection Act sets forth
congressional findings (15 U.S.C. § 1822). One of these
congressional findings is that "horses shown or exhibited which are
sore, where such soreness improves the performance of such horse,
compete unfairly with horses which are not sore" (15 U.S.C. §
1822(2)). However, a finding that soring improved or would have
improved a respondent’s horse’s performance is not a prerequisite
to the conclusion that the respondent has violated the Horse
Protection Act. Complainant proved by a preponderance of the
evidence* that Respondent Reinhart entered Double Pride Lady for
the purpose of showing or exhibiting Double Pride Lady as entry
number 146 in class number 21 at the National Walking Horse
Trainers Show in Shelbyville, Tennessee, while Double Pride Lady
was sore, which is all that is necessary to prove tht Respondent
Reinhart violated section 5(2)(B) of the Horse Protection Act (15
U.S.C. § 1824(2)(B)). Therefore, I reject Respondent Reinhart’s
contention that the conclusion that he violated the Horse Protection
Act is error because Complainant failed to prove that soring
improved or-would have improved Double Pride Lady’s
performance.
Eighteenth, Respondent Reinhart contends "the Judicial
Officer states the ludicrous proposition that Drs. Slauter and Smith
are more credible witnesses than Charles Thomas" (Pet. for
Recons. at 15-16).
Respondent Reinhart does not cite any part of the
November 9, 2000, Decision and Order in which I state that Drs.
Slauter and Smith are more credible witnesses than Charles L.
Thomas. Moreover, I cannot locate any part of the November 9,
2000, Decision and Order in which I state that Drs. Slauter and
Smith are more credible than Charles L. Thomas. I found Drs.
Slauter and Smith to be credible witnesses, but I also found Charles
L. Thomas was a credible witness. In re William J. Reinhart, 59
Agric. Dec.___, slip op. at 12-13, 44 (Nov. 9, 2000).
Nineteenth, Respondent Reinhart contends Young v. United
States Dep’t of Agric., 53 F.3d 728 (5* Cir. 1995), is controlling (Pet.
29
for Recons. at 15-16).
I disagree with Respondent Reinhart’s contention that
Young is controlling. Respondents contended that Young is
controlling in Respondents’ Appeal Petition (Respondents’ Appeal |
Pet. at 6, 8-9). My reasons for rejecting Respondents’ contention |
that Young is controlling are set forth in the November 9, 2000,
Decision and Order. In re William J. Reinhart, 59 Agric. Dec.___,
slip op. at 37-40 (Nov. 9, 2000).
Twentieth, Respondent Reinhart contends the United States
Court of Appeals for the Fifth Circuit held in Young v. United
States Dep’t of Agric., 53 F.3d 728 (5" Cir. 1995), that palpation as |
a method for detecting sore horses is not reliable, that palpation as _ |
a method for detecting sore horses is illegal, and that 9 C.F.R. pt. —
11 is illegal (Pet. for Recons. at 16).
A review of Young reveals that the United States Court of
Appeals for the Fifth Circuit did not hold that digital palpation is —
illegal or that 9 C.F.R. pt. 11 is illegal, as Respondent Reinhart ©
contends. However, the Court does state that there was significant
evidence presented at the administrative hearing that "an observed |
reaction to digital palpation alone is not a reliable indicator of a
sore horse." Young, 53 F.3d at 731.
None of the litigants in this proceeding presented significant
evidence that an observed reaction to digital palpation alone is not
a reliable indicator of a sore horse. Moreover, Dr. Slauter and Dr.
Smith based their determinations that Double Pride Lady was sore
not only on Double Pride Lady’s reaction to palpation, but also on
their observations of Double Pride Lady’s movement (CX 9, CX
10; Tr. 46, 108-09).
Twenty-first, Respondent Reinhart contends that, since the
United States Court of Appeals for the Fifth Circuit decided Young ©
v. United States Dep’t of Agric., 53 F.3d 728 (5% Cir. 1995), the —
Secretary of Agriculture has not enforced the Horse Protection Act —
within the jurisdiction of the United States Court of Appeals for —
the Fifth Circuit. Respondent Reinhart contends that because he |
30
resides within the jurisdiction of the United States Court of
Appeals for the Sixth Circuit, the Secretary of Agriculture’s
selective enforcement of the Horse Protection Act and 9 C.F.R. pt.
11 denies him equal protection of the law. (Pet. for Recons. at 16-
17.)
Respondent Reinhart cites no basis for his contention that
since the United States Court of Appeals for the Fifth Circuit
decided Young on June 7, 1995, the Secretary of Agriculture has
not enforced the Horse Protection Act within the jurisdiction of the
United States Court of Appeals for the Fifth Circuit (Louisiana,
Mississippi, and Texas). I cannot locate any evidence that support
Respondent Reinhart’s contention. Complainant states
Respondent Reinhart’s contention that the Secretary of
Agriculture has not enforced the Horse Protection Act in
Louisiana, Mississippi, and Texas since June 7, 1995, is false
(Complainant’s Response to Respondent William J. Reinhart’s
Petition for Reconsideration at 22). Moreover, since June 7, 1995,
I have issued decisions in three proceedings under the Horse
Protection Act in which the respondents could appeal to the United
States Court of Appeals for the Fifth Circuit.’ In two of these three
proceedings, the horses found to e sore had been entered in horse
shows conducted within the jurisdiction of the United States Court
of Appeals for the Fifth Circuit." Therefore, I reject Respondent
Reinhart’s contention that the Secretary of Agriculture has not
enforced the Horse Protection Act in Louisiana, Mississippi, and
Texas since June 7, 1995.
Twenty-second, Respondent Reinhart contends the United
States Department of Agriculture has misstated the position of the
United States Court of Appeals for the Sixth Circuit "which has
only ruled that, evidence of soreness based on palpation is sufficient
to invoke the presumption of soreness" and which "has specifically
stated that evidence that can overcome this presumption is
permissible and will be considered" (Pet. for Recons. at 17
(emphasis in original)).
The United States Court of Appeals for the Sixth Circuit has
held that "a finding of ‘soreness’ based upon the results of digital
palpation alone is sufficient to invoke the rebuttable presumption"
31
that a horse is sore. Bobo v. United States Dep’t of Agric., 52 F.3d |
1406, 1413 (6" Cir. 1995). In the November 9, 2000, Decision and
Order, I cited Bobo stating the Sixth Circuit has held that a horse’s
reaction to digital palpation alone is sufficient to invoke the
presumption that the horse is sore. In re William J. Reinhart, 59
Agric. Dec. __, slip op. at 16, 37 (Nov. 9, 2000). In my view, the
November 9, 2000, Decision and Order accurately describes the
Sixth Circuit’s holding in Bobo. Therefore, I reject Respondent
eee ee ee
Reinhart’s contention that the United States Department of ©
Agriculture has misstated the position of the United States Court
of Appeals for the Sixth Circuit.
Twenty-third, Respondent Reinhart contends the Secretary
of Agriculture through the adoption of 9 C.F.R. pt. 11 has
“completely changed the Horse Protection Act from an effort by
the Congress to regulate interstate commerce to an effort by the
[United States Department of Agriculture] to illegally assume
responsibility for the enforcement of a federal law relating to
cruelty to animals." Respondent Reinhart asserts that 9 C.F.R. pt.
11 violates the Commerce Clause of the Constitution of the United
States (Pet. for Recons. at 17)..
The Secretary of Agriculture is authorized to issue such
regulations as the Secretary deems necessary to carry out the Horse
Protection Act (15 U.S.C. § 1828). I have reviewed 9 C.F.R. pt. 11.
I conclude that all of the regulations in 9 C.F.R. pt. 11 are designed
to carry out the Horse Protection Act and none of the regulations
are beyond the authority granted to the Secretary of Agriculture
under the Horse Protection Act. Moreover, 9 C.F.R. pt. 11 does
not violate the Commerce Clause of the Constitution of the United
States, as Respondent Reinhart asserts.
Twenty-fourth, Respondent Reinhart requests that I either
dismiss the proceeding or refer the proceeding to a district court of
the United States or to the United States Court of Appeals for the
Sixth Circuit (Pet. for Recons. at 21).
Complainant proved by a preponderance of the evidence''
that on October 28, 1998, Respondent Reinhart violated section
5(2)(B) of the Horse Protection Act (15 U.S.C. § 1824(2)(B)) by
32
entering for the purpose of showing or exhibiting the horse known
as "Double Pride Lady" as entry number 146 in class number 21
at the National Walking Horse Trainers Show in Shelbyville,
Tennessee, while Double Pride Lady was sore. Therefore, I find no
basis for dismissing this proceeding, as Respondent Reirhart
requests.
Moreover, the Judicial Officer has no authority under the
Rules of Practice to refer a proceeding to a district court of the
United States or to the United States Court of Appeals for the Sixth
Circuit.” Therefore, I deny Respondent Reinhart’s request that I
refer this proceeding to a district court of the United States or to
the United States Court of Appeals for the Sixth Circuit.
For the foregoing reasons and the reasons set forth in Jn re
William J. Reinhart, 59 Agric. Dec.___ (Nov. 9, 2000), Respondent
Reinhart’s Petition for Reconsideration is denied.
Section 1,146(b) of the Rules of Practice (7 C.F.R. §
1,146(B)) provides that the decision of the Judicial Officer shall
automatically be stayed pending the determination to grant or
deny a timely-filed petition for reconsideration." Respondent
Reinhart’s Petition for Reconsideration was timely filed and
automatically stayed the November 9, 2000, Decision and Order.
Therefore, since Respondent Reinhart’s Petition for
Reconsideration is denied, I hereby lift the automatic stay, and the
Order in the Decision and Order filed November 9, 2000, is
reinstated: except that (1) the date within which payment of the
civil penalty was required to be forwarded to and received by Ms.
Carroll in paragraph 1 of the November 9, 2000, Order; (2) the
effective date in paragraph 2 of the November 9, 2000, Order; aud
(3) and the date of the Order in paragraph 3 of the November 9,
2000, Order, are the dates indicated in paragraphs 1, 2, and 3 of
the Order in this Order Denying William J. Reinhart’s Petition for
Reconsideration.
For the foregoing reasons, the following Order should be
issued.
Order
33
1. William J. Reinhart is assessed a $2,000 civil penalty.
The civil penalty shall be paid by certified check or money order
made payable te the ''Treasurer of the United States" and sent to:
Colleen A. Carroll
United States Department of Agriculture
Office of the General Counsel
Marketing Division
Room 2343 South Building
Washington, DC 20250-1417
William J. Reinhart’s payment of the civil penalty shalt be
forwarded to, and received by, Mr. Carroll within 60 days after
service of this Order on William J. Reinhart. William J. Reinhart
shall indicate on the certified check or money order that payment
is in reference to HPA Docket No. 99-0013.
2. William J. Reinhart is disqualified for a period of 5
years from showing, exhibiting, or entering any horse directly or
indirectly through any agent, employee, or device, and from
managing, judging, or otherwise participating in any horse show,
horse exhibition, horse sale, or horse auction. "Participating"
means engaging in any activity beyond that of a spectator, and
includes, without limitation: (a) transporting or arranging for the
transportation of horses to or from any horse show, horse
exhibition, horse sale, or horse auction; (b) personally giving
instructions to exhibitors; (c) being present in the warm-up areas,
inspection areas, or other areas where spectators are not allowed at
any horse show, horse exhibition, horse sale, or horse auction; and
(d) financing the participation of others in any horse show, horse
exhibition, horse sale, or horse auction.
This 5-year period of disqualification is to be served
consecutive to the disqualification of William J. Reinhart ordered
in In re Jack Stepp, 57 Agric. Dec. 297 (1998), aff'd, 188 F.3d 508
(Table), 1999 WL 646138 (6% Cir. 1999) (not to be cited as
precedent under 6" Circuit Rule 206). The disqualification shall
become effective on the 60" day after service of this Order on
William J. Reinhart.
34
3. William J. Reinhart has the right to obtain review of
this Order in the court of appeals of the United States for the
circuit in which William J. Reinhart resides or has his place of
business or in the United States Court of Appeals for the District
of Columbia Circuit. William J. Reinhart must file a notice of
appeal in such court within 30 days from the date of this Order and
must simultaneously send a copy of such notice by certified mail to
the Secretary of Agriculture. 15 U.S.C. § 1825(b)(2), (c). The date
of this Order is January 23, 2001.
Done at Washington, DC
January 23, 2001
/s/William G. Jenson
William G. Jenson
Judicial Officer
35
FOOTNOTES - APPENDIX F
1. The ALJ also amended the caption of the proceeding which had previously
been "Jn re William J. Reinhart" to read In re William J. Reinhart, an individual,
and Reinhart Stables, an unincorporated association or sole proprietorship (Order
Granting Complainant’s Motion to Amend Complaint). The ALJ appears to
have abandoned the caption in his Order Granting Complainant’s Motion to
Amend Complaint, and I have retained the caption adopted by the ALJ in his
June 5, 2000, Decision and Order [hereinafter Initial Decision and Order].
2. The Rules of Practice do not provide for a litigant’s filing a response to a
response to an appeal petition. However, a litigant may file, and I may grant,
a motion requesting the opportunity to file a response to a response to an appeal
petition. Respondents did not file a motion requesting the opportunity to file
a response to Complainant’s Response to Respondents’ Appeal of Decision and
Order. Therefore, I have not considered Respondent’s Response to
Complainant’s Response to Respondent’s Appeal of Decision and Order.
3. Withrow v. Larkin, 421 U.S. 35, 46-47 (1975) (stating a fair trial in a fair
tribunal is a basic requirement of due process and this requirement applies to
administrative agencies, which adjudicate, as well as to the courts; not only is
a biased decisionmaker constitutionally unacceptable, but our system of law has
always endeavored to prevent even the probability of unfairness);
Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 150
(1968) (stating any tribunal permitted by law to try cases and controversies not
only must be unbiased, but also must avoid even the appearance of bias);
Harline v. DEA, 148 F.3d 1199, 1203 (10% Cir. 1998) (stating due process
guarantees a hearing concerning the deprivation of life or a recognized
property or liberty interest before a fair and impartial tribunal and this
guarantee applies to administrative adjudications as well as those in the court),
cert. denied, 525 U.S. 1068 (1999); Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir.
1995) (stating essential to a fair administrative hearing is an unbiased judge);
Grant v. Shalala, 989 F.2d 1332, 1345 (3d Cir. 1993) (stating bias on the part of
administrative law judges may undermine the fairness of the administrative
process); Roach v. NTSB, 804 F.2d 1147, 1160 (10* Cir. 1986) (stating due
process entitles an individual in an administrative proceeding to a fair hearing
before an impartial tribunal), cert. denied, 486 U.S. 1006 (1988); Hummel v.
Heckler, 736 F.2d 91, 93 (3d Cir. 1984) (stating trial before an unbiased judge
is essential to due process and that this rule of due process is applicable to
administrative as well as judicial adjudications); Johnson v. United States Dep't
of Agric., 734 F.2d 774, 782 (11* Cir. 1984) (stating a fair hearing requires an
impartial arbiter); Helena Laboratories Corp. v. NLRB, 557 F.2d 1183, 1188 (5*
Cir. 1977) (stating a fair trial by an unbiased and non-partisan trier of the facts
is of the essence of the adjudicatory process as well when the judging is done in
an administrative proceeding by an administrative functionary as when it is
done in a court by a judge); Doraiswamy v. Secretary of Labor, 555 F.2d 832, 843
36
(D.C. Cir. 1976) (stating a litigant’s entitlement to a tribunal graced with an
unbiased adjudicator obtains in administrative proceedings); Roberts v. Morton,
549 F.2d 158, 164 (10 Cir. 1976) (stating an adjudicatory hearing before an
administrative tribunal must afford a fair trial in a fair tribunal as a basic
requirement of due process), cert. denied, 434 U.S. 834 (1977); Wasson v.
Trowbridge, 382 F.2d 807, 813 (2d Cir. 1967) (stating a fair hearing requires an
impartial trier of fact); Amos Treat & Co. v. SEC, 306 F.2d 260, 263 (D.C. Cir.
1962) (stating quasi-judicial proceedings entail a fair trial and fairness requires
an absence of actual bias in the trial of cases and our system of law has always
endeavored to prevent even the appearance of bias); NLRB v. Phelps, 136 F.2d
562, 563 (S™ Cir. 1943) (stating a fair trial by an unbiased and non-partisan
trier of the facts is of the essence of the adjudicatory process as well when the
judging is done in an administrative proceeding by an administrative
functionary as when it is done in a court by a judge); Continental Box Co. v.
NLRB, 113 F.2d 93, 95-96 (S™ Cir. 1940) (stating it is the essence of a valid
judgment that the body that pronounces judgment ina judicial or quasi-judicial
proceeding be unbiased); Inland Steel Co. V. NLRB, 109 F.2d 9, 20 (7 Cir.
1940) (stating trial by a biased judge is not in conformity with due process and
the recognition of this principle is an essential in proceedings before
administrative agencies as it is before the courts).
4. Harline v. DEA, 148 F.3d 1199, 1203 (10" Cir. 1998) (stating an
administrative law judge enjoys a presumption of honesty and integrity which
is only rebutted by a showing of some substantial countervailing reason to
conclude that the administrative law judge is actually biased with respect to
factual issues being adjudicated), cert. denied, 525 U.S. 1068 (1999); Akin v.
Office of Thrift Supervision, 950 F.2d 1180, 1186 (5* Cir. 1992) (stating in order
to disqualify an administrative law judge for bias, the moving party must plead
and prove, with particularity, facts that would persuade a reasonable person
that bias exists); Gimbel v. CFTC, 872 F.2d 196, 198 (7 Cir. 1989) (stating in
order to set aside an administrative law judge’s findings on the grounds of bias,
the administrative law judge’s conduct must be so extreme that it deprives the
hearing of that fairness and impartiality necessary to fundamental fairness
required by due process); Miranda v. NTSB, 866 F.2d 805, 808 (5* Cir. 1989)
(stating a substantial showing of bias is required to disqualify a hearing officer
or to obtain a ruling that the hearing is unfair); NLRB v. Webb Ford, Inc., 689
F.2d 733, 737 (7 Cir. 1982 ) (stating the standard for determining whether an
administrative law judge’s display of bias or hostility requires setting aside his
findings and conclusions and remanding the case for a hearing before a new
administrative law judge is an exacting one, and requires that the
administrative law judge’s conduct be so extreme that it deprives the hearing
of that fairness and impartiality necessary to that fundamental fairness
required by due process); Nicholson v. Brown, 599 F.2d 629, 650 (5" Cir. 1979)
(stating in order to maintain a claim of personal bias on the part of an
administrative tribunal, there must be a substantial showing); Roberts v.
Morton, 549 £.2d 158, 164 (10™ Cir. 1976) (stating a substantial showing of
personal bias is required to disqualify a hearing officer or to obtain a ruling
37
tll
that the hearing is unfair), cert. denied, 434 U.S. 834 (1977); United States ex rel.
DeLuca v. O’Rourke, 213 F.2d 759, 763 (8" Cir. 1954) (stating it requires a
substantial showing of bias to disqualify a hearing officer or to justify a ruling
that the hearing was unfair).
5. In re Jack Stepp, 57 Agric. Dec. 297, 309 (1998) (stating "entering" within
the meaning of the Horse Protection Act, is a process that begins with the
payment of the entry fee and includes pre-show examination by the Designated
Qualified Person or the United States Department of Agriculture veterinarian
or both), aff'd, 188 F.3d 508 (Table), 1999 WL 646138 (6" Cir. 1999) (not to be
cited as precedent under 6" Circuit Rule 206); In re Danny Burks, 53 Agric.
Dec. 322, 334 (1994) (rejecting the respondent’s argument that “the mere act
of submitting a horse for pre-show inspection does not constitute ‘entering’ as
that term is [used in the Horse Protection] Act"); In re Eddie C. Tuck (Decision
as to Eddie C. Tuck), 53 Agric. Dec. 261, 280 (1994) (rejecting the respondent’s
argument that “entering,” as used in the Horse Protection Act, is limited to
“doing whatever is specifically required by the management of any particular
horse show to cause a horse to become listed on the class sheet for a specific
class of that horse show"), appeal voluntarily dismissed, No. 94-1887 (4 Cir.
Oct. 6, 1994); In re John Allan Callaway, 52 Agric. Dec. 272, 293 (1993) (stating
“entering a horse in a horse show 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 Paul A. Watlington, $2 Agric. Dec. 1172, 1183 (1193)
(stating entry is a process that gives a status of being entered to a horse and
entry includes filling out forms and presenting the horse to the Designated
Qualified person for inspection); In re Glen O. Crowe, 52 Agric. Dec. 1132,
1146-47 (1993) (stating “entering,” within the meaning of the Horse Protection
Act, is a process that begins with the payment of the entry fee); In re William
Dwaine Elliott (Decision as to William Dwaine Elliott), 51 Agric. Dec. 334, 344
(1993) (stating “entering,” within the meaning of the Horse Protection Act, is
a process that begins with the payment of the entry fee and includes pre-show
examination by the Designated Qualified Person or the United States
Department of Agriculture veterinarians or both), aff'd, 990 F.2d 140 (4® Cir.),
cert. denied, $10 U.S. 867 (1993).
6In re Marysville Enterprises, Inc. (Decision as to Marysville Enterprises, Inc.,
d/b/a Marysville Hog Buying Co., and James L. Breeding), 59 Agric. Dec.___,
slip op. at 46 (Jan. 4, 2000); In re Mary Meyers, 58 Agric. Dec. 861, 866 (1999)
(Order Denying Pet. for Recons.); In re Anna Mae Noell, 58 Agric. Dec. 855,
859-60 (1999) (Order Denying the Chimp Farm, Inc.’s Motion to Vacate); In re
Kreider Dairy Farms, Inc., 57 Agric. Dec. 413, 423-24 (1998) (Order Denying
Pet. for Recons.); In re Michael Norinsberg, 57 Agric. Dec. 719, 795 (1998)
(Order Denying Pet. for Recons.); In re Allred’s Produce, 56 Agric. Dec. 1884,
1911 (1997), aff'd, 178 F.3d 743 (5* Cir. 1999), cert. denied, 528 U.S. 1021
(1999); In re David M. Zimmerman, 56 Agric. Dec. 433, 373-74 (1997), aff'd, 156 _
F.3d 1227 (3d Cir. 1998) (Table), printed in 57 Agric. Dec. 46 (1998); In re
Barry Glick, 55 Agric. Dec. 275, 282 (1996); In re Jeremy Byrd, 55 Agric. Dec. |
443, 448 (1996); In re Bama Tomato Co., 54 Agric. Dec. 1334, 1342 (1995), aff'd,
38
112 F.3d 1542 (11 Cir. 1997); In re Stimson Lumber Co., 54 Agric. Dec. 155,
166 n.5 (1995); In re Johnny E. Lewis, 53 Agric. Dec. 1327, 1354-55 (1994), affrd
in part, rev’d & remanded in part, 73 F.3d 312 (11 Cir. 1996), decision on
remand, 55 Agric. Dec. 246 (1996), aff’d per curiam sub nom. Morrison v.
Secretary of Agric., 111 F.3d 897 (11" Cir. 1997) (Table); In re Craig Lesser, 52
Agric. Dec. 155, 167 (1993), aff'd, 34 F.3d 1301 (7" Cir. 1994); In re Rudolph J.
Luscher, 51 Agric. Dec. 1026, 1026 (1992); In re Lloyd Myers Co., 51 Agric. Dec.
782, 783 (1992) (Order Denying Pet. for Recons.), aff'd, 15 F.3d 1086 (9" Cir.
1994), 1994 WL 20019 (9" Cir. 1994) (not to be cited as precedent under 9"
Circuit Rule 36-3), printed in 53 Agric. Dec. 686 (1994); In re Van Buren County
Fruit Exchange, Inc., 51 Agric. Dec. 733, 740 (1992); In re Consesus Milk
Producers, 48 Agric. Dec. 871, 880 (1989); In re James W. Hickey, 47 Agric. Dec.
840, 861 (1988), aff'd, 878 F.2d 385, 1989 WL 71462 (9" Cir. 1989) (not to be
cited as precedent under 9“ Circuit Rule 36-3), printed in 48 Agric. Dec. 107
(1989); In re Dean Daul, 45 Agric. Dec. 556, 565 (1986); In re Digby Palmer, 44
Agric. Dec. 248, 253 (1985); In re Evans Potato Co., 42 Agric. Dec. 308, 309-10
(1983); In re Richard "Dick" Robinson, 42 Agric. Dec. 7 (1983), aff'd, 718 F.2d
336 (10% Cir. 1983); In re Daniel M. Winger, 38 Agric. Dec. 182, 187 (1979),
appeal dismissed, No. 79-C-126 (W.D. Wis. June 1979); In re Lamers Dairy, Inc.,
36 Agric. Dec. 265, 289 (1977), aff'd sub nom. Lamers Dairy, Inc. v. Bergland,
No. 77-C-173 (E.D. Wis. Sept. 28, 1977), printed in 36 Agric. Dec. 1642, aff'd,
607 F.2d 1007 (7* Cir. 1979), cert. denied, 444 U.S. 1077 (1980).
7The proponent of an order has the burden of proof in proceedings conducted
under the Administrative Procedure Act (5 U.S.C. § 556(d)), and the standard
of proof by which the burden of proof is met is the preponderance of the
evidence standard. Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92
(1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981). The standard of proof in
administrative proceedings conducted under the Horse Protection Act is
preponderance of the evidence. In re David Tracy Bradshaw, 59 Agric. Dec.__,
slip op. at 10-11 (June 14, 2000), appeal docketed, No. 00-60582 (5“ Cir. Aug. 21,
2000); In re Carl Edwards & Sons Stables (Decision as to Carl Edwards & Sons
Stables, Gary R. Edwards, Larry E. Edwards, and Etta Edwards), 56 Agric.
Dec. 529, 539 (1997), aff'd per curiam, 138 F.3d 958 (11% Cir. 1998) (Table),
printed in S7 Agric. Dec. 296 (1998); In re Gary R. Edwards (Decision as to Gary
R. Edwards, Larry E. Edwards, and Carl Edwards & Sons Stables), 55 Agric.
Dec. 892-903 (1996), dismissed, No. 96-9472 (11% Cir. Aug. 15, 1997); In re John
T. Gray (Decision as to Glen Edward Cole), 55 Agric. Dec. 853, 857 n.2 (1996);
In re Jim Singleton, 55 Agric. Dec. 848, 850 n.2 (1996); In re Keith Bechnell, 54
Agric. Dec. 335, 343-44 (1995); In re CM. Oppenheimer (Decision as to C. M.
Oppenheimer), 54 Agric. Dec. 221, 245-46 (1995); In re Eddie C. Tuck (Decision
as to Eddie C. Tuck), 53 Agric. Dec. 261, 285 (1994), appeal voluntarily
dismissed, No. 94-1887 (4* Cir. Oct. 6, 1994); In re William Earl Bobo, 53 Agric.
Dec. 176, 197 (1994), aff’d, 52 F.3d 1406 (6* Cir. 1995); In re Jack Kelly, 52
Agric. Dec. 1278, 1286 (1993), appeal dismissed, 38 F.3d 999 (8 Cir. 1994); In
re Charles Sims (Decision as to Charles Sims), 52 Agric. Dec. 1243, 1253-54
(1994); In re Paul A. Watlington, 52 Agric. Dec. 1172, 1186-87 (1993); In re
39
EOE SG AERUGINOSA RNP! Re 8 i tt
Te Me ee ae
Jackie McConnell (Decision as to Jackie McConnell), 52 Agric. Dec. 1156, 1167
(1993), aff'd, 23 F.3d 407, 1994 WL 162762 (S" Cir. 1994), printed in 53 Agric.
Dec. 175 (1994); In re A.P. Holt (Decision as to Richard Polch and Merrie |
Polch), 52 Agric. Dec. 233, 242-43 (1993), aff'd per curiam, 32 F.3d 569, 1994
WL 390510 (6" Cir. 1994) (citation limited under 6" Circuit Rule 24); In re _
Steve Brinkley, 52 Agric. Dec. 252, 262 (1993); In re John Allan Callaway, 52
Agric. Dec. 272, 284 (1993); In re Linda Wagner (Decision as to Roy E. Wagner
and Judith E. Rizio), 52 Agric. Dec. 298, 307 (1993), aff'd, 28 F.3d 279 (3d Cir.
1994), reprinted in 53 Agric. Dec. 169 (1994); In re William Dwaine Elliott
(Decision as to William Dwaine Elliott), 51 Agric. Dec. 334, 341 (1992), aff'd,
990 F.2d 140 (4" Cir.), cert. denied, 510 U.S. 867 (1993); In re Pat Sparkman
(Decision as to Pat Sparkman and Bill McCook), 50 Agric. Dec. 602, 612 (1991);
In re Albert Lee Rowland, 40 Agric. Dec. 1934, 1941 n.5 (1981), aff'd, 713 F.2d
179 (6" Cir. 1983); In re Steve Beech, 37 Agric. Dec. 1181, 1183-85 (1978).
8See note 7.
9In re David Tracy Bradshaw, 59 Agric. Dec.___ (June 14, 2000), appeal
docketed, No. 00-60582 (5" Cir. Aug. 21, 2000); In re Stephen Douglas Bolton
(Decision as to Stephen Douglas Bolton), 58 Agric. Dec. 254 (1999); In re Gerald
Funches, 56 Agric. Dec. 517 (1997).
10/n re Stephen Douglas Bolton (Decision as to Stephen Douglas Bolton), 58
Agric. Dec. 254 (1999); In re Gerald Funches, 56 Agric. 517 (1997)
11See note 7.
12In re William J. Reinhart, 59 Agric. Dec.___, slip op. at 65 (Nov. 9, 2000); Jn
re Jack Stepp, 59 Agric. Dec.___, slip op. at 4 (Apr. 26, 2000) (Order Lifting
Stay); In re Nikiambi Jean Lema, 58 Agric. Dec. 362, 305 (1999) (Order Denying
Pet. for Recons. and Mot. To Transfer Venue). Cf In re Stimson Lumber Co.,
56 Agric. Dec. 480, 492 (1997) (stating the Chief Administrative Law Judge does
not have authority to transfer a case to a district court of the United States
under the Rules of Practice Governing Adjudication of Sourcing Area
Applications and Formal Review of Sourcing Areas Pursuant to the Forest
Resources Conservation and Shortage Relief Act of 1990).
13In re Reginald Dwight Parr, 59 Agric. Dec.___, slip op. at 23 (Order Denying —
Respondent’s Pet. for Recons.); In re Mangos Plus, Inc., 59 Agric. Dec.___, slip
op. at 11 (Sept. 7, 2000 (Order Denying Pet. for Recons.); In re David Tracy
Bradshaw, 59 Agric. Dec.___, slip op. at 6 (Aug. 3, 2000) (Order denying Pet.
for Recons.); In re Kirby Produce Co., 58 Agric. Dec. 1032, 1040 (1999) (Order
Denying Pet. for Recons.); In re James E. Stephens, 58 Agric. Dec. 201, 209
(1999) (Order Denying Pet. for Recons.); In re Michael Norinsberg, 58 Agric. |
Dec. 619, 625 (1999) (Order Denying Pet. for Recons. on Remand); In re |
Sweck’s, Inc., 58 Agric. Dec. 222, 227 (1999) (Order Denying Pet. for Recons.); |
In re Produce Distributors, Inc., 58 Agric. Dec. 535, 540-41 (1999) (Order
40
Denying Pet. for Recons. as to Irene T. Russo, d/b/a Jay Brokers); In re Judie
Hansen, 58 Agric. Dec. 369, 387 (1999) (Order Denying Pet. for Recons.); In re
Daniel E. Murray, 58 Agric. Dec. 77, 83 (1999) (Order Denying Pet. for
Recons.); In re David M. Zimmerman, 58 Agric. Dec. 336, 338-39 (1999) (Order
Denying Pet. for Recons.); In re C.C. Baird, 57 Agric. Dec. 1284, 1299 (1998)
(Order Denying in Part and Granting in Part Pet. for Recons.); In re JSG
Trading Corp., 57 Agric. Dec. 710, 729 (1998) (Order Denying Pet. for Recons.
as to JSG Trading Corp.); In re Peter A. Lang, 57 Agric. Dec. 91, 110 (1998)
(Order Denying Pet. for Recons.); In re Jerry Goetz, 57 Agric. Dec. 426, 444
(1998) (Order Denying Respondent’s Pet. for Recons. and Denying in Part and
Granting in Part Complainant’s Pet. for Recons.); In re Allred’s Produce, 57
Agric. Dec. 799, 801-02 (1998) (Order Denying Pet. for Recons.); In re Michael
Norinsberg, 57 Agric. Dec. 791, 797 (1998) (Order Denying Pet. for Recons.); In
re Tolar Farms, 57 Agric. Dec. 775, 789 (1998) (Order Denying Pet. for
Recons.); In re Samuel Zimmerman, 56 Agric. Dec. 1458, 1467 (1997) (Order
Denying Pet. for Recons.); In re Kanowitz Fruit & Produce, Co., 56 Agric. Dec.
942, 957 (1997) (Order Denying Pet. for Recons.); In re Volpe Vito, Inc., 56
Agric. Dec. 269, 275 (1997) (Order Denying Pet. for Recons.); In re City of
Orange, 56 Agric. Dec. 370, 371 (1997) (Order Granting Request to Withdraw
Pet. for Recons.); Jn re Five Star Food Distributors, Inc., 56 Agric. Dec. 898, 901
(1997) (Order Denying Pet. for Recons.); In re Havana Potatoes of New York
Corp., 56 Agric. Dec. 1017, 1028 (1997) (Order Denying Pet. for Recons.); In re
Saulsbury Enterprises, 56 Agric. Dec. 82, 101 (1997) (Order Denying Pet. for
Recons.); In re Andershock Fruitland, Inc., 55 Agric. Dec. 1234 (1996) (Order
Denying Pet. for Recons.).
4
APPENDIX G
UNITED STATES DEPARTMENT OF AGRICULTURE
BEFORE THE SECRETARY OF AGRICULTURE
HPA Docket No. 99-0013
IN RE:
WILLIAM J. REINHART AND
REINHART STABLES,
RESPONDENTS
DECISION AND ORDER
Filed November 9, 2000
Procedural History
The Administrator, Animal and Plant Health Inspection
Service, United States Department of Agriculture [hereinafter
Complainant], instituted this disciplinary administrative
proceeding by filing a Complaint on March 10, 1999. Complainant
institute the proceeding under the Horse Protection Act of 1970, as
amended (15 U.S.C. §§ 1821-1831) [hereinafter the Horse
Protection Act], and the Rules of Practice Governing Formal
Adjudicatory Proceedings Instituted by the Secretary Under
Various Statutes [hereinafter the Rules of Practice]. Complainant
alleges that on October 28, 1998, William J. Reinhart allowed the
entry of a horse called "Double Pride Lady" as entry number 146
in class number 21 at the National Walking Horse Trainers Show |
in Shelbyville, Tennessee, for the purpose of showing or exhibiting
Double Pride Lady, while Double Pride Lady was sore, in violation _ q
of section 5(2)(D) of the Horse Protection Act (15 U.S.C. § |
1824(2)(D)) (Compl. 3).
On April 2, 1999, William J. Reinhart filed a Response to |
the Complaint. In his Response, William 1 Reinhart admits he is |
the owner of Double Pride Lady and admits he allowed the entry
of Double Pride Lady at the National Walking Horse Trainers [|
42
Show in Shelbyville, Tennessee. However, William J. Reinhart
denies Double Pride Lady was sore, in violation of section 5(2)(D)
of the Horse Protection Act (15 U.S.C. § 1824(2)(D)), when he
allowed her entry at the National Walking Horse Trainers Show in
Shelbyville, Tennessee. (Response.)
On June 28, 1999, Complainant filed a Motion to Amend
Complaint and an Amended Complaint. Complainant moved to
amend the Complaint to add Reinhart Stables as a respondent
(Motion to Amend Compl. § 2). On August 5, 1999, William J.
Reinhart filed an untitled document in which he opposed
Complainant’s Motion to Amend Complaint. On August 24, 1999,
Administrative Law Judge Edwin S. Bernstein [hereinafter the
ALJ] granted Complainant’s Motion to Amend Complaint and
deemed William J. Reinhart’s opposition to Complainant’s Motion
to Amend Complaint to be William J. Reinhart’s and Reinhart
Stables’ [hereinafter Respondents! Answer to the Amended
Complaint (Order Granting Complainant’s Motion to Amend
Complaint).!
The Amended Complaint alleges that on October 28, 1998,
Respondents entered and allowed the entry of Double Pride Lady
as entry number 146 in class number 21 at the National Walking
Horse Trainers Show in Shelbyville, Tennessee, for the purpose of
showing or exhibiting Double Pride Lady, while Double Pride Lady
was sore, in violation of sections 5(2)(B) and 5(2)(D) of the Horse
Protection Act (15 U.S.C. §§ 1824(2)(B), 1824(2)(D)) (Amended
Compl. { 6).
The ALJ presided at a hearing in Nashville, Tennessee, on
October 13 and 14, 1999. Colleen A. Carroll, Office of the General
Counsel, United States Department of Agriculture, represented
Complainant. William J. Reinhart represented Reinhart Stables
and himself.
On December 10, 1999, Respondents filed a Post-Hearing
Brief. On December 27, 1999, Complainant filed Complainant’s
Proposed Findings of Fact and Conclusions of Law and
Memorandum of Point and Authorities in Support Thereof
[hereinafter Complainant’s Post-Hearing Brief]. On January 10,
43
2000, Complainant filed Complainant’s Reply to Respondents’
Post-Hearing Brief. On January 27, 2000, Respondents filed a
Motion for Dismissal and Reply Brief of Respondent.
On June 5, 2000, the ALJ issued an Initial Decision and
Order in which the ALJ: (1) concluded that on October 28, 1998,
William J. Reinhart, acting as an owner of Reinhart Stables,
violated section (5)(2)(B) of the Horse Protection Act (15 U.S.C. §
1824(2)(B)) by entering Double Pride Lady as entry number 146 in
class number 21 at the National Walking Horse Trainers Show in
Shelbyville, Tennessee, for the purpose of showing or exhibiting
Double Pride Lady, while Double Pride Lady was sore; (2)
concluded that Reinhart Stables is merely a name under which
William J. Reinhart does business; (3) assessed William J. Reinhart
a $2,000 civil penalty; and (4) disqualified William J. Reinhart for
5 years from exhibiting, showing, or entering any horse, directly or
indirectly through any agent, employee, or device, and from
managing, judging, or otherwise participating in any horse show,
horse exhibition, horse sale, or horse auction (Initial Decision and
Order at 4, 13-14).
On July 6, 2000, Respondents appealed to the Judicial
Officer. On September 5, 2000, Complainant filed Complainant’s
Response to Respendents’ Appeal of Decision and Order
{hereinafter Complainant’s Response to Respondents’ Appeal
Petition] and Complainant’s Appeal of Decision and Order
{hereinafter Complainant’s Appeal Petition]. On September 27,
2000, Respondents filed Respondent’s Response to Complainant’s
Response to Respondent’s Appeal of Decision and Order’ and
Respondent’s Response to Complainant’s Appeal of Decision and
Order.
On October 2, 2000, Respondents filed a motion requesting |
a list of citations and a motion requesting a transcript of the |
hearing. On November 1, 2000, Complainant filed responses to |
Respondents’ motion requesting a list of citations and |
Respondents’ motion requesting a transcript of the hearing. On
November 3, 2000, the Hearing Clerk transmitted the record of the
proceeding to the Judicial Officer for a decision, a ruling on
Respondents’ motion requesting a list of citations, and a ruling on
43
Respondents’ motion requesting a transcript of the hearing.
I have considered the entire record in this proceeding. I
have not considered Respondent’s Response to Complainant’s
Response to Respondent’s Appeal of Decision and Order.’ To the
extent indicated, I have adopted proposed findings, proposed
~ conclusions, and arguments; otherwise, they have been rejected as
irrelevant or not supported by the evidence. Based upon a careful
consideration of the record and pursuant to section 1.145(i) of the
Rules of Practice (7 C.F.R. § 1.145(i)), I adopt, with minor
modifications, the ALJ’s Initial Decision and Order as the final
Decision and Order. Additional conclusions by the Judicial Officer
follow the ALJ’s discussion of sanctions, as restated.
Complainant’s exhibits are designated by "CX";
Respondents’ exhibits are designated by "RX"; and transcript
references are designated by "Tr."
APPLICABLE STATUTORY AND
REGULATORY PROVISIONS
13 US.C.:
TITLE 15 - COMMERCE AND TRADE
CHAPTER 44 - PROTECTION OF HORSES
§ 1821. Definitions
As used in this chapter unless the context otherwise
requires: |
(3) The 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 or 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
45
horse, or
, (D) any other substance or device has been used by a person
on any limb of a horse of 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, except that such term does
not include such an application, infliction, injection, use or practice —
in connection with the therapeutic treatment ofa horse by or under |
the supervision ofa person licensed to practice veterinary medicine
in the State in which such treatment was given.
§ 1822. Congressional statement of findings
The Congress finds and declares that -
(1) the soring of horses is cruel and inhumane;
(2) horses shown or exhibited which are sore, were such
soreness improves the performance of such horse, compete unfairly
with horses which are not sore;
(3) the movement, showing, exhibition, or sale of sore
horses in intrastate commerce adversely affects and burdens
interstate and foreign commerce;
(4) all horses which are subject to regulation under this
chapter are either in interstate or foreign commerce or
substantially affect such commerce; and
(5) regulation under this chapter by the Secretary is
appropriate to prevent and eliminate burdens upon commerce and
to effectively regulate commerce.
§ 1824. Unlawful acts
The following conduct is prohibited:
a eT ee ee er ee ee, ee ee
(2) The (A) showing or exhibiting, in any horse show or :
horse exhibition, of any horse which is sore, (B) entering for the
purpose of showing or exhibiting in any horse show or horse —
exhibition, any horse which is sore, (C) selling, auctioning, or
46
offering for sale, in any horse sale or auction, any horse which is
sore, and (D) allowing any activity described in clause (A), (B), or
(C) respecting a horse which is sore by the owner of such horse.
§ 1825. Violations and penalties
(b) Civil penalties; review and enforcement
(1) Any person who violates section 1824 of this title shall be
liable to the United States for a civil penalty of not more than
$2,000 for each violation. No penalty shall be assessed unless such
person is given notice and opportunity for a hearing before the
Secretary with respect to such violation. The amount of such civil
penalty shall be assessed by the Secretary by written order. In
determining the amount of such penalty, the Secretary shall take
into account all factors relevant to such determination, including
the nature, circumstances, extent, and gravity of the prohibited
conduct and, with respect to the person found to have engaged in
such conduct, the degree of culpability, any history of prior
offenses, ability to pay, effect on ability to continue to do business,
and such other matters as justice may require.
(2) Any person against whom a violation is found and a civil
penalty assessed under paragraph (1) of this subsection may obtain
review in the court of appeals of the United States for the circuit in
which such person resides or has his place of business or in the
United States Court of Appeals for the District of Columbia Circuit
by filing a notice of appeal in such court within 30 days from the
date of such order and by simultaneously sending a copy of such
notice by certified mail to the Secretary. The Secretary shall
promptly file in such court a certified copy of the record upon
which such violation was found and such penalty assessed, as
provided in section 2112 of title 28. The findings of the Secretary
shall be set aside if found to unsupported by substantial evidence.
(c) Disqualification of offenders; orders; civil penalties
applicable; enforcement procedures
In addition to any fine, imprisonment, or civil penalty
47
authorized under this section, any person who was convicted under
subsection (a) of this section or who paid a civil penalty assessed
under subsection (b) of this section or is subject to a final order
under such subsection assessing a civil penalty for any violation of
any provision of this chapter or any regulation issued under this
chapter may be disqualified by order of the Secretary, after notice
and an opportunity for a hearing before the Secretary, from
showing or exhibiting any horse, judging or managing any horse
show, horse exhibition, or horse sale or auction for a period of not
less than one year for the first violation and not less than five years
for any subsequent violation. Any person who knowingly fails to
obey an order of disqualification shall be subject to a civil penalty
of not more than $3,000 for each violation. Any horse show, horse
exhibition, or horse sale or auction, oy tne management thereof,
collectively and severally, which knowingly allows any person who
is under an order of disqualification to show or exhibit any horse,
to enter for the purpose of showing or exhibiting any horse, to take
part in managing or judging, or otherwise to participate in any
horse show, horse exhibition, or horse sale or auction in violation
of an order shall be subject to a civil penalty of not more than
$3,000 for each violation. The provisions of subsection (b) of this
section respecting the assessment, review, collection, and
compromise, modification, and remission of a civil penalty apply
with respect to civil penalties under this subsection.
§ 1827. Utilization of personnel of Department of Agriculture and
officers and employees of consenting States; technical and
other nonfinancial assistance to State
(c) Assistance from Department of Agriculture and States
The Secretary, in carrying out the provisions of this chapter,
shall utilize, to the maximum extent practicable, the existing
personnel and facilities of the Department of Agriculture. The
Secretary is further authorized to utilize the officers and employees
of any State, with its consent, and with or without reimbursement,
to assist him in carrying out the provisions of this chapter.
(d) Assistance to States
The Secretary may, upon request, provide technical and
other nonfinancial assistance (including the lending of equipment
on such terms and conditions as the Secretary determines is
appropriate) to any State to assist it in administering and enforcing
any law of such State ‘designed to prohibit conduct described in
section 1824 of this title.
§ 1829. Preemption of State laws; concurrent jurisdiction;
prohibition on certain State action
No provision of this chapter shall be construcd as indicating
an intent on the part of the Congress to occupy the field in which
such provision operates to the exclusion of the law of any State on
the same subject matter, unless there is a direct and positive
conflict between such provision and the law of the State so that the
two cannot be reconciled or consistently stand together. Nor shall
any provision of this chapter be construed to exclude the Federal
Government from enforcing the provision of this chapter within
any State, whether or not such State has enacted legislation on the
same subject, it being the intent of the Congress to establish
concurrent jurisdiction with the States over such subject matter.
In no case shall any such State take action pursuant to this section
involving a violation of any such law of that State which would
preclude the United States from enforcing the provisions of this
chapter against any person.
15 U.S.C. §§ 1821(3), 1822, 1824(2), 1825(b)(1)-(2), (c), 1827, 1829.
ADMINISTRATIVE LAW JUDGE’S
INITIAL DECISION AND ORDER (AS RESTATED)
1. Respondent William J. Reinhart, doing business as
Reinhart Stables, is the owner of a horse known as "Double Pride
Lady." William J. Reinhart’s mailing address is 3878
Murfreesboro Highway, Manchester, Tennessee 37355. (CX 2, CX
6.)
2. William J. Reinhart employed Jack Stepp, full time, as
a trainer of Double Pride Lady (Tr. 190-91).
49
3. On October 28, 1998, William J. Reinhart entered for the
purpose of showing or exhibiting Double Pride Lady as entry
number 146 in class number 21 at the National Walking Horse |
Trainers Show in Shelbyville, Tennessee (CX 2, CX 3, CX 4, CX 5). |
4. At the National Walking Horse Trainers Show, |
Designated Qualified Persons‘ Mark Thomas and Bob Flynn |
examined Double Pride Lady. Mark Thomas and Bob Flynn |
determined Double Pride Lady was sensitive in both front feet and
refused to allow Double Pride Lady to be shown at the National |
Walking Horse Trainers Show. (Tr. 46-47; CX 9, CX 10, CX 15,
CX 16, CX 17.)
5. United States Department of Agriculture veterinary |
medical officers routinely monitor examinations conducted by —
Designated Qualified Persons. United States Department of |
Agriculture veterinary medical officers also randomly select horses, |
which have been entered at horse shows, and conduct their own |
examinations to determine whether these horses are sore. Two
United States Department of Agriculture veterinary medical
officers, Dr. John Edward Slauter and Dr. David C. Smith, were
assigned to the National Walking Horse Trainers Show. (Tr. 19-21,
30-31, 87-89, 99.)
5. Dr. Slauter had been practicing veterinary medicine for
27 years at the time of the National Walking Horse Trainers Show.
For the past 10 years, Dr. Slauter has been a United States
Department of Agriculture veterinary medical officer. Dr. Slauter
has personally examined at least 300 horses for compliance with the
Horse Protection Act and has overseen inspections of several
thousand horses by Designated Qualified Persons. (Tr. 14-17, 20-
21.) Dr. Slauter is well qualified to examine horses to determine
whether they are "sore" as defined in the Horse Protection Act. I |
found Dr. Slauter to be a forthright and credible witness.
7. Dr. Slauter observed Designated Qualified Persons Mark :
hy
ba
Thomas and Bob Flynn examine Double Pride Lady, who "led up |
to the inspection area very reluctant to move" (CX 9; Tr. 45-47). *
After Mark Thomas and Bob Flynn had examined Double Pride
Lady, finding her to be sensitive on both front feet, Dr. Slauter ;
50
examined Double Pride Lady (CX 9; Tr. 46-47). Dr. Slauter
testified that he did not specifically remember his examination of
Double Pride Lady. However, Dr. Slauter testified that he
prepared an affidavit (CX 9) and the Summary of Alleged
Violations form (CX 6) while his examination of Double Pride Lady
was fresh in his mind and that his affidavit and the Summary of
Alleged Violations form are accurate. (Tr. 36-37, 40-45.) Dr.
Slauter repeatedly palpated Double Pride Lady, finding her to be
bilaterally sore. Dr. Slauter found Double Pride Lady to be sore at
the pastern of the left front foot just above the bulb of the heel and
on the medial and lateral aspects of the pastern of the right front
foot. (CX 6, CX 9; Tr. 47.) After Dr. Slauter completed his
examination of Double Pride Lady, he asked Dr. Smith to examine
Double Pride Lady (Tr. 47-48).
8. Dr. Smith had been practicing veterinary medicine for 11
years at the time of the National Walking Horse Trainers Show.
Dr. Smith has been employed by the Animal and Plant Health
Inspection Service, United States Department of Agriculture, for
the past 3 years. (Tr. 85-86.) Dr. Smith has personally examined
approximately 300 to 600 horses for compliance with the Horse
Protection Act (Tr. 89). Dr. Smith is well qualified to examine
horses to determine whether they are "sore" as defined in the
Horse Protection Act. I found Dr. Smith to be a forthright and
credible witness.
9. Dr. Smith testified that he did not specifically remember
his examination of Double Pride Lady. However, Dr. Smith
testified that he prepared an affidavit (CX 10) and the Summary
of Alleged Violations form (CX 6) while his examination of Double
Pride Lady was fresh in his mind and that his affidavit and the
Summary of Alleged Violations form are accurate. (Tr. 99-103.)
Double Pride Lady exhibited consistent and repeatable pain
responses each time Dr. Smith palpated Double Pride Lady’s
pastern on the medial and lateral heel bulbs of the left front foot
and on the medial and lateral aspects of the pastern of the right
front foot (CX 6, CX 10).
10. After their examinations, Drs. Slauter and Smith agreed
Double Pride Lady was bilaterally sore" as defined in the Horse
51
Ee
Protection Act (CX 9, CX 10).
Conclusions of Law
1. On October 28, 1998, Respondent William J. Reinhart, |
doing business as Reinhart Stables, violated section 5(2)(B) of the
Horse Protection Act (15 U.S.C. § 1824(2)(B)) by entering for the
purpose of showing or exhibiting the horse known as "Double
Pride Lady" as entry number 146 in class number 21 at the
National Walking Horse Trainers Show in Shelbyville, Tennessee,
while Double Pride Lady was sore.
2. Respondent Reinhart Stables is merely a name under
which Respondent William J. Reinhart does business.
Discussion
Congress found “the soring of horses is cruel and
inhumane" and “horses shown or exhibited which are sore, where
such soreness improves the performance. .., compete unfairly with
horses which are.not sore" (15 U.S.C. § 1822(1)-(2)). Congress
made it unlawful to: (1) show or exhibit a sore horse in any horse
show or horse exhibition; (2) enter for the purpose of showing or
exhibiting a sore horse in any horse show or horse exhibition; or (3)
allow the showing of a sore horse in any horse show or horse
exhibition. 15 U.S.C. § 1824(2)(A)-(B), (D). The term "sore"
describes a horse, which, as a result of the use of a substance or
practice, 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. § 1821(3)).
Based on the credible testimony of Drs. Slauter and Smith, | |
I find Double Pride Lady was sore when William J. Reinhart | /
entered Double Pride Lady at the National Walking Horse Trainers |
Show in Shelbyville, Tennessee, on October 28, 1998. Drs. Slauter |
and Smith, who examined Double Pride Lady, are experienced and |
qualified veterinarians and were credible witnesses. Each | |
veterinarian independently palpated Double Pride Lady’s pasterns. |
Double Pride Lady exhibited strong and definite pain responses to |”
each veterinarians’ palpation of her forelimbs. (Tr. 47, 100; CX 9, :
$2
CX 10.) Abnormal sensitivity in a horse’s forelimbs raises a
rebuttable presumption that the horse has been sored (15 U.S.C. §
1825(d)(5)).
Respondents contend that palpation alone is not sufficient
to determine whether a horse is sore. Respondents also believe that
Dr. Slauter’s and Dr. Smith’s examinations of Double Pride Lady
should be deemed unreliable because Complainant fails to "cite one
scientific study or any medical data" that supports palpation as a
reliable means for determining soreness in horses (Tr. 12-13, 328-
29) and because Dr. Slauter and Dr. Smith failed to examine
Double Pride Lady in accordance with the procedures
recommended in the Atlanta Protocol (RX 1). Respondents also
cite Young v. United States Dep’t of Agric., 53 F.3d 728 (5" Cir.
1995), in support of their position that digital palpation alone is not
a reliable method by which to determine whether a horse is sore
(Respondents’ Post-Hearing Brief st 10-11; Tr. 251-59).
The United States Department of Agriculture has used
palpation to determine whether a horse is sore within the meaning
of the Horse Protection Act for the past 30 years. The Judicial
Officer and the two circuits in which this case may be appealed
have held palpation to be the accepted method for determining
whether a horse is sore. In Bobo v. United States Dep’t of Agric., 52
F.3d 1496, 1412-14 (6" Cir. 1995), the Court held that "pursuant
to the [Horse Protection Act], the agency need not show
inflammation or lameness in addition to a pain reaction in order to
conclude that a horse is ‘sore,’" and a horse’s reaction to digital
palpation alone is sufficient to invoke the presumption that the
horse is sore. In the other circuit in which this case may be
appealed, the United States Court of Appeals for the District of
Columbia Circuit held in Crawford v. United States Dep’t of Agric.,
50 F.3d 46, 49-50 (D.C. Cir.), cert. denied, 516 U.S. 824 (1995),
palpation is an effective method for concluding that a horse is sore.
In In re Gary R. Edwards (Decision as to Gary R. Edwards, Larry
E. Edwards, and Carl Edwards & Sons Stables), 55 Agric. Dec.
892, 959-60 (1996), dismissed, No. 96-9472 (11 Cir. Aug 5, 1997),
the Judicial Officer held that the scientific basis for palpation is not
necessary to be shown, and in In re Kim Bennett, 55 Agric. Dec.
53
176, 180-81 (1996), the Judicial Officer rejected the Atlanta |
Protocol and held "palpation alone is a highly reliable method of ;
determining whether a horse is sore, within the meaning of the
Horse Protection Act."
Respondents also contend the United States Department of
Agriculture veterinary medical officers’ affidavits and Summary of
Alleged Violations form (CX 6, CX 9, CX 10) are inadmissible
hearsay because they were prepared in anticipation of litigation
and do not meet the standard of evidence that was set out in
Young, 53 F.3d 627 (5" Cir. 1995) (Respondents’ Post-Hearing
Brief at 8-9). Respondents cite Palmer v. Hoffman, 318 U.S. 109
(1943), which held that an accident report prepared by a railroad
company did not carry the indicia of reliability of a routine
business record because the accident report was prepared at least
partially in anticipation of litigation and also cite United States v.
Stone, 604 F.2d 922, 925-26 (5 Cir. 1979), which held that an
affidavit prepared by an officials of the United States Treasury
Department was unreliable because the affidavit was prepared in
anticipation of litigation (Respondents’ Post-Hearing Brief at 9).
Respondents further rely on the Fifth Circuit’s holding in Young,
53 F.3d at 731, that the probative value of the United States
Department of Agriculture veterinary medical officers’ affidavits
is limited because the affidavits were prepared in anticipation of
litigation and because the affidavits only described observations
supporting the conclusion that the horse in question was sore.
Dr. Slauter’s and Dr. Smith’s affidavits and the Summary
of Alleged Violations form (CX 6, CX 9, CX 10) are reliable and
probative hearsay statements. Under the Rules of Practice, 7
C.F.R. § 1.141(h), and the Administrative Procedure Act, 5 U.S.C.
§ 556(d), hearsay statements are admissible into evidence. As held FF
ele MRR RR Rien, do eee alga LEER OREN NEE SNL NEON ES EN os geet a j : ‘ ,
, » = oa bs ee ra . SPY ote Fee Sa i lt iat ats POR RY ee Ee TOT
in In re Kim Bennett, “the business of the Animal and Plant Health F
Inspection Service under the Horse Protection Act is investigating
and litigating, where violations are found. As law enforcement
officers, it is the duty of [veterinary medical officers] to detect E
violations of the federal statute and to initiate the procedure for §
bringing disciplinary complaints against the violators. Hence,
litigating is ‘the inherent nature of the business in question’ . . .,
54
and the preparation of the Summary of Alleged Violations form
and affidavits is the most important of the ‘methods systematically
employed for the conduct of the business as a business.’" In re Kim
Bennett, 55 Agric. Dec. at 213-14 (quoting Palmer y. Hoffman, 318
U.S. 109, 115 (1943)).
This case cannot be appealed to the United States Court of
Appeals for the Fifth Circuit. Therefore, the Young decision does
not govern. The United States Court of Appeals for the District of
Columbia Circuit and the United States Court of Appeals for the
Sixth Circuit are the appellate courts that may hear this matter
and, as such, their views will determine whether hearsay is
admissible. In Crawford, 50 F.3d at 49, the District of Columbia
Circuit confirmed that administrative agencies are not barred from
reliance on hearsay evidence, which only need bear satisfactory
indicia of reliability. Likewise, the Sixth Circuit held in Bobo, 52
F.3d at 1412-14, that the affidavits of and the Summary of Alleged
Violations forms completed by four veterinary medical officers
were sufficient to invoke the presumption, for the purpose of
charges against the owner, that the horse in question was "sore" as
defined by the Horse Protection Act, despite the contention that the
affidavits were hearsay. Although in Bobo, three of the United
States Department of Agriculture veterinary medical officers
testified that they were unable to independently recall their
examinations of the horse in question, they stated that they
documented their examinations in written statements and Signed
their written statements while the details of their examinations
were fresh in their minds. The Court emphasized that the written
forms and affidavits contained great detail concerning the
examinations of the horse in question, and the owner and trainer
were given the opportunity to cross-examine the United States
Department of Agriculture veterinary medical officers as to the
content of these reports. Bobo, 52 F.3d at 1414.
In the instant proceeding, both Dr. Slauter and Dr. Smith
testified that they did not recall their examinations of Double Pride
Lady. However, they also testified that they completed the
Summary of Alleged Violations from and documented their
findings in affidavits while the facts were still fresh in their minds.
55
(Tr. 31-32, 36-37, 40-45, 99-103.) Respondents had the opportunity :
to cross-examine Dr. Slauter and Dr. Smith regarding the content |
of their affidavits and the Summary of Alleged Violations form. |
Moreover, Dr. Slauter’s affidavit, Dr. Smith’s affidavit, and the |
Summary of Alleged Violations form contain great detail
concerning the examinations of Double Pride Lady (CX 6, CX 9,
CX 10). Therefore, these hearsay statements are reliable,
probative, and admissible.
Respondents presented three witnesses: (1) William J.
Reinhart’s wife, Judith Reinhart; (2) Double Pride Lady’s trainer,
Jack Stepp, who was sanctioned by the National Horse Show
Commissicn in connection with the entry of Double Pride Lady at
the National Walking Horse Trainers Show on October 28, 1998 |
(Tr. 282-86); and (3) the steward at the National Walking Horse |
Trainers Show, Charles L. Thomas. None of Respondents’ })
witnesses examined Double Pride Lady for compliance with the |
Horse Protection Act. Charles L. Thomas, who is a Designated | /
Qualified Person, was only serving as a steward at the National [|
Walking Horse Trainers Show. He merely viewed Double Pride —
Lady’s movement but did not palpate her. Charles L. Thomas
testified that, when he observed Double Pride Lady, he formed no
opinion regarding whether Double Pride Lady was sore under the |
Horse Protection Act and could not testify whether Double Pride [
Lady was sore under the Horse Protection Act and could not testify |
whether Double Pride Lady was sore when William J. Reinhart |
entered Double Pride Lady at the National Walking Horse Trainers |.
Show. (Tr. 127, 138, 145-50.) Respondents’ evidence fails to rebut
Complainant’s evidence that Double Pride Lady was sore when —
William J. Reinhart entered her at the National ‘Valking Horse —
Trainers Show in Shelbyville, Tennessee, on October 28, 1998.
Respondents further contend the Horse Protection Act is
unconstitutional as it does not fall within the confines of the
Commerce Clause of the United States Constitution. Respondents
rely on United States v. Lopez, 514 U.S. 549 (1995), which held that
the Gun-Free School Zones Act of 1990 was invalid as it went
beyond Congress’ power to regulate commerce. The Gun-Free
School Zones Act of 1990 made the intentional possession of a
firearm in a school zone a federal offense. Lopez, 514 U.S. at 551.
56
The Court in Lopez held that the activity being regulated must
substantially affect interstate commerce and brining guns onto a
school ground does not have a great enough effect on interstate
commerce to qualify for regulation under the Commerce Clause.
Respondents compare their case to Lopez and argue that
participation in a Tennessee walking horse exhibition does not have
a substantial enough effect on interstate commerce to warrant
regulation under the Commerce Clause. Respondents emphasize
that the prizes are minimal (only $100 or so) and argue that these
Shows are presented merely for leisurely purposes.
In another case concerning Congress’ power to regulate
under the Commerce Clause, the Supreme Court in United States
v. Morrison, 120 S. Ct. 1740 (2000), confirmed the holding that
Congress’ power to regulate through the Commerce Clause is
allowed only in situations in which the activity to be regulated, if
not a channel or instrumentality of interstate commerce,
substantially affects interstate commerce. In Morrison, the Court
invalidated a federal statute that provided a federal civil remedy
for victims of gender-motivated crimes. The Court held that crimes
that are gender-motivated are not economic activity and their
results do not affect interstate commerce.
While ad administrative law judge may not dismiss a case
based upon a finding of unconstitutionality of the statute under
which the case is instituted, the administrative law judge may
render an opinion on the issue. See Public Utilities Commission of
California v. United States, 355 U.S. 534, 539 (1958); In re Utica
Packing Co., 39 Agric. Dec. 590, 599 (1980). I do not agree that the
Horse Protection Act is unconstitutional.
Lopez identified the three categories of activity that
Congress may regulate under the Commerce Clause. Congress
may regulate the use of channels of interstate commerce (roadways,
railways, etc.); Congress may regulate and protect the
instrumentalities of interstate commerce or persons and things in
interstate commerce; and Congress may also regulate activities that
substantially affect interstate commerce. Lopez, 514 U.S. at 558-59.
See Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Darby,
57
312 U.S. 100 (1941). The activities regulated under the Horse
Protection Act fall within the third category, as they have a
substantial effect on interstate commerce.
The Horse Protection Act regulates an industry, not just a
leisurely activity, as Respondents contend. Although this industry
only provides minimal monetary returns in the form of prizes for
the owner, it is an occupation for the individuals who prepare the
horse for competition. Those who train, groom, and transport the
horses would be adversely affected if the Horse Protection Act were
not in place. Not only does the soring of horses endanger the health
of the animals, but it also could affect the employment status of
those who service horses that are unfairly disadvantaged.
Respondents also argue the Horse Protection Act encroaches
upon the sovereignty of the State of Tennessee, which also has a
statute prohibiting the soring of horses. A federal statute may be
found to encroach upon the sovereignty of a state if: (1) the federal
statute compels a state to enact or enforce a particular law;* (2)
the federal statute compels state or local officials to perform specific
federal administrative tasks;’ or (3) the federal statute infringes on
the authority of the people of a state to determine the qualifications
for office of state governments officials.* The Horse Protection Act
does not require the State of Tennessee to enact or enforce any law,
does not require state or local officials to perform federally
delegated tasks, and does not infringe on the authority of the
people of the State of Tennessee to determine qualifications for
office of state government officials. The United States Department
of Agriculture polices horse shows, using its own employees, and
holds violators accountable through its own administrative law
procedures. The State of Tennessee may still enforce its own
statute and is not required to administer or enforce the Horse
Protection Act (15 U.S.C. §§ 1827, 1829). Therefore, the Horse
Protection Act does not encroach upon the sovereignty of the State
of Tennessee.
Respondents also filed a Motion for Dismissal on January
27, 2000. In the Motion for Dismissal, Respondents argue that the
Complaint should be dismissed because of an extension granted to
Complainant to file Complainant’s Post-Hearing Brief.
58
Respondents’ Motion for Dismissal is denied. The extension was
appropriate and caused no prejudice to Respondents.
Sanctions
The Horse Protection Act authorizes the assessment of a
civil penalty of not more than $2,000 for each violation. 15 U.S.C.
§ 1825(b)(1). The Horse Protection Act also authorizes the
disqualification, from showing or exhibiting any horse or judging
or managing any horse show, horse exhibition, horse sale, or horse
auction, or any person who is assessed a civil penalty. The Horse
Protection Act provides minimum periods of disqualification of not
less than 1 year for a first violation and not less than 5 years for
any subsequent violation. 15 U.S.C. § 1825(c).
Complainant requests that I assess William J. Reinhart a
$2,000 civil penalty and disqualify William J. Reinhart from
showing or exhibiting any horse or judging or managing any horse
show, horse exhibition, horse sale, or horse auction. Complainant
also requests that any period of disqualification imposed on
William J. Reinhart in this Decision and Order be consecutive to,
rather than concurrent with, the disqualification of William J.
Reinhart in In re Jack Stepp, 57 Agric. Dec. 297 (1998), aff'd sub
nom. Reinhart v. United States Dep’t of Agric., 188 F.3d 508 (Table),
1999 WL 646138 (6" Cir. 1999) (not to be cited as precedent under
6" Circuit Rule 206). Complainant also requests that I assess
Reinhart Stables a $2,000 civil penalty and disqualify Reinhart
Stables from showing or exhibiting any horse or judging or
managing any horse show, horse exhibition, horse sale, or horse
auction for 1 year.
The main purpose of the Horse Protection Act is to prevent
the cruel, inhumane, and unfair practice of soring horses. Since
deterrence is the goal of the Horse Protection Act, monetary
penalties are not enough to achieve this goal. The Judicial Officer
has held that disqualification is an appropriate sanction in almost
every Horse Protection Act case. In In re Albert Lee Rowland, 40
Agric. Dec. 1934, 1951-52 91981), aff’d, 713 F.2d 179 (6" Cir.
1983), the Judicial Officer stated:
59
Congress has provided the Department with the
"tools" needed to eliminate the practice of soring Tennessee
Walking Horses. But they must be used, to be effective. In
order to achieve the Congressional purpose of the Act, it
would seem necessary to impose at least the minimum
disqualification provisions of the 1976 amendments on
every horse owner (and trainer) who allows one of his
horses to be exhibited while sore. [Footnote omitted.]
See also In re John Allan Callaway, 52 Agric. Dec. 272, 295-96
(1993); In re Eldon Stamper, 42 Agric. Dec. 20, 60-61 (1983), aff'd,
722 F.2d 1483 (9" Cir. 1984), reprinted in 51 Agric. Dec. 302 (1992).
William J. Reinhart has violated the Horse Protection Act
before. See In re Jack Stepp, 57 Agric. Dec. 297 (1998), aff'd sub
nom. Reinhart v. United States Dep’t of Agric., 188 F.3d 508 (Table),
1999 WL 646138 (6" Cir. 1999) (not to be cited as precedent under
6" Circuit Rule 206). Therefore, I find disqualification of William
J. Reinhart from showing or exhibiting any horse or judging or
managing any horse show, horse exhibition, horse sale, or horse
auction for the minimum 5-year period for a second violation of the
Horse Protection Act, to be an appropriate sanction. 15 U.S.C. §
1825(c).
As far as sanctions for Reinhart Stables are concerned, the
evidence indicates that Reinhart Stables is merely a name under
which William J. Reinhart was conducting business. Thus,
sanctioning Reinhart Stables would be redundant. Therefore, I
conclude the sanctions requested by Complainant for Reinhart
Stables are inappropriate.
ADDITIONAL CONCLUSIONS BY THE
JUDICIAL OFFICER
Respondents’ Appeal Petition
Respondents raise 15 issues in their Petition for Review |
{hereinafter Respondents’ Appeal Petition]. First, Respondents
contend the ALJ erroneously accepted and _ considered
60
ee
Complainant’s Post-Hearing Brief, which Respondents content
Complainant filed late (Respondents’ Appeal Pet. at 3).
The ALJ ordered Complainant to "mail" Complainant’s
Post-Hearing Brief no later than December 10, 1999 (Tr. 332). On
December 7, 1999, Complainant requested that the ALJ extend the
time for "filing and mailing" Complainant’s Post-Hearing Brief to
December 23, 1999 (Motion to Amend Briefing Schedule). On
December 7, 1999, the ALJ extended the time for "filing"
Complainant’s Post-Hearing Brief to December 23, 1999 (Order
Extending Briefing Schedule). On December 14, 1999,
Respondents requested that the ALJ reconsider the extension of
time granted to Complainant for filing Complainant’s Post-
Hearing Brief (Statement in Opposition to Government’s Motion
for Extension of Time to File Briefs). On December 15, 1999, the
ALJ rejected Respondents’ request (Order).
Complainant did not file Complainant did not file
Complainant’s Post-Hearing Brief until December 27, 1999.
However, Complainant asserts Complainant’s Post-Hearing Brief
was timely filed, as follows:
On December 23, 1999, Department of Agriculture
employees were given early dismissal because of the
Christmas holiday, and the Office of the Hearing Clerk
closed early. Counsel for [CJomplainant, by telephone,
requested and was granted leave to file [C]omplainant’s
[P]ost-[H]earing [B]rief on the following business day,
December 27, 1999. (December 24 was a federal holiday).
The extension of time was for good cause, in accordance
with the Rules of Practice. 7 C.F.R. § 1.147(f).
The [C]omplainant’s [P]ost-[H]earing [B]rief was filed on
Deceraber 27, 1999, and was timely filed in accordance with
the Rules of Practice. 7 C.F.R. § 1.147(g).
Complainant’s Response to Respondents’ Appeal Petition at 3.
Complainant does not cite, and I cannot locate, any filing by
the ALJ granting Complainant’s oral request to extend the time for
61
filing Complainant’s Post-Hearing Brief to December 27, 1999. I
find the lack of any filing granting Complainant’s oral request for
an extension of time, troubling. However, Respondents raised the
issue of the timeliness of Complainant’s Post-Hearing Brief before
the ALJ in a Motion for Dismissal filed January 27, 2000. The ALJ
denied Respondents Motion for Dismissal stating "the extensions
were appropriate and caused no prejudice to Respondent{s]."
(Initial Decision and order at 11.) Based on the ALJ’s ruling on
Respondents’ Motion for Dismissal, I find Complainant orally
requested that the ALJ extend the time for filing Complainant’s
Post-Hearing Brief to December 27, 1999, and the ALJ orally
granted Complainant’s request. Therefore, I find Complainant
timely filed Complainant’s Post-Hearing Brief on December 27,
1999, and I reject Respondents’ contention that the ALJ
erroneously accepted and considered Complainant’s Post-Hearing
Brief. :
Second, Respondents contend the disparate application of
section 1,147(g) of the Rules of Practice (7 C.F.R. § 1.147(g)) to
parties in administrative proceedings conducted under the Rules
of Practice violates Respondents’ rights to due process of law.
Specifically, Respondents contend the Judicial Officer strictly
applies 7 C.F.R. § 1.147(g) to the respondents in administrative
proceedings and rejects documents filed by respondents that do not
timely reach the Hearing Clerk. Respondents contend that, in
contrast to the strict application of 7 C.F.R. § 1.147(g) to the
respondents, the Judicial Officer accepts and considers documents
filed by complainants that do not time reach the Hearing Clerk.
Respondents cite In re Jack Stepp, 57 Agric. Dec. 297 (1998), aff'd,
188 F.3d 508 (Table), 1999 WL 646138 (6" Cir. 1999) (not to be
cited as precedent under 6" Circuit Rule 206), as an example of the
Judicial Officer’s disparate treatment of the respondents and the
complainants in administrative proceedings conducted under the
Rules of Practice. (Respondents’ Appeal Pet. at 3-5.)
Section 1.147(g) of the Rules of Practice provides that any
document or paper filed in an administrative proceeding conducted
under the Rules of Practice shall be deemed to be filed at the time
when it reaches the Hearing Clerk, as follows:
62
§ 1.147 Filing; service; extensions of time; and computation
of time.
(g) Effective date of filing. Any document or paper
required or authorized under the rules in this part to be
filed shall be deemed to be filed at the time when it reaches
the Hearing Clerk; or, if authorized to be filed with another
officer or employee of the Department it shall be deemed to
be filed at the time when it reaches such officer or employee.
7 C.F.R. § 1.147(g).
As an initial matter, the purported disparate application of
7 C.F.R. § 1.147(g) to litigants in prior proceedings is not relevant
to this proceedings. Respondents’ argument that they have been
denied due process in this proceeding because the Judicial Officer
disparately applied 7 C.F.R. § 1.147(g) to litigants in prior
proceedings is without merit.
Moreover, the Judicial Officer has been punctilious about
the application of 7 C.F.R. § 1.147(g) to the complainants, as well
as the respondents, in administrative proceedings conducted under
the Rules of Practice.’ Nothing in In re Jack Stepp supports
Respondents’ contention that the Judicial Officer disparately
applied 7 C.F.R. § 1.147(g) to the litigants in that proceeding.
The Rules of Practice are binding on administrative law
judges and the Judicial Officer," and administrative law judges
and the Judicial Officer have very limited authority to modify the
Rules of Practice in a proceeding."' Even if an administrative law
judge or the Judicial Officer was presented with a circumstance in
which the administrative law judge or the Judicial Officer had
authority to modify the Rules of Practice, I cannot now conceive of
a circumstance in which an administrative law judge or the
Judicial Officer would modify 7 C.F.R. § 1.147(g) in a manner
which would result in the disparate application of 7 C.F.R.
§1.147(g) to litigants in a proceeding.
The record in this proceeding does not reveal that the ALJ
or the Judicial Officer disparately applied 7 C.F.R. § 1.147(g) to
63
the parties. All of Respondents’ and Complainant’s filings have
been timely filed. Neither the ALJ nor the Judicial Officer has
rejected a filing in this proceeding because it did not timely reach
the Hearing Clerk. Therefore, I find no basis for Respondents’
contention that the Judicial Officer disparately applied 7 C.F.R. §
1.147(g) to Respondents and Complainant, and I find no basis for
Respondents’ contention that the disparate application of 7 C.F.R.
§ 1.147(g) to Respondents and Complainant denied Respondents
due process under the Fifth Amendment to the United States
Constitution.
Third, Respondents contend section 1.147(g) of the Rules of
Practice (7 C.F.R. § 1.147(g)) is contrary to Carroll v. C.LR., 71
F.3d 1228 (6" Cir. 1995), cert. denied, 518 U.S. 1017 (1996).
Respondents assert that Carroll requires federal administrative
agencies to provide that the effective date of filing in administrative
proceedings is the date a properly addressed document, bearing
proper postage, and sent by regular mail, is postmarked
{hereinafter the mailbox rule]. (Respondents’ Appeal Pet. at 3, 5.)
None of Respondents’ fillings have been rejected because
they did not timely reach the Hearing Clerk, as provided in 7
C.F.R. § 1.147(g). Therefore, the application to this proceeding of
7 C.F.R. § 1.147(g), rather than the mailbox rule, has not resulted
in the rejection of any of Respondents’ filings. Even if I found that
the Secretary of Agriculture is required by Carroll to apply the
mailbox rule to this proceeding (which I do not find), that finding
would have no effect on the timeliness of Respondents’ filings.
Under these circumstances, I find Respondents’ contention that the
mailbox rule must be applied to determine the effective date of
filing has no relevance to this proceeding.
Moreover, in Carroll, the United States Court of Appeals for
the Sixth Circuit did not hold that federal agencies must adopt the
mailbox rule in administrative proceedings, as Respondents assert.
Instead, the Sixth Circuit found that the petitioners in Carroll
could not invoke the common law presumption that the Internal
Revenue Service received their properly addressed communication
bearing proper postage after the normal 2- or 3-day interval
64
necessary for United States Postal Service delivery. Carroll, 71
F.3d at 1230, 1233, I find Carroll inapposite. Nothing in Carroll
requires the Secretary of Agriculture to adopt the mailbox rule in
this proceeding or any other United States Department of
Agriculture administrative proceeding.
Fourth, Respondents contend the ALJ erroneously excluded
the Atlanta Protocol. Specifically, Respondents contend the ALJ’s
exclusion of the Atlanta Protocol is reversible error because: (1)
months before the hearing, Respondents listed the Atlanta Protocol
as one of the documents which they would introduce at the
hearing; (2) Respondents laid the proper foundation for the
Atlanta Protocol through Charles L. Thomas; and (3) the United
States Court of Appeals for the Fifth Circuit in Young v. United
States Dep’t of Agric., 53 F.3d 728 (5 Cir. 1995), accepted and
relied on the Atlanta Protocol. (Respondents’ Appeal Pet. at 5-9.)
I disagree with Respondents’ contention that their listing
the Atlanta Protocol as a document, which they would introduce at
the hearing, requires the ALJ to admit the Atlanta Protocol into
evidence. Section 1.140(a)(1)(iii) of the Rules of Practice (7 C.F.R.
§ 1.140(a)(1)(iii)) provides that an administrative law judge may
order each party to furnish copies of or a list of documents which
that party anticipates introducing at the hearing. On May 11,
1999, pursuant to 7 C.F.R. § 1.140(a)(1)(iii), the ALJ issued an
order requiring Complainant and Respondents to exchange copies
of proposed hearing exhibits (Summary of Telephone Conference
{ 2). On August 31, 1999, Respondents filed with the Hearing
Clerk a list of the witnesses they intended to call and a list of the
documents they intended to introduce at the hearing. Respondents
listed the Atlanta Protocol as one of the documents which they ~
intended to introduce into evidence. (Respondent’s List of
Witnesses and Exhibits.) However, the act of filing a list of
documents, which a party anticipates introducing at the hearing,
does not require the administrative law judge presiding at the
hearing to admit the listed documents into evidence.
Section 1.141(h)(1)(iv) of the Rules of Practice provides that
evidence may be excluded, as follows:
65
§ 1.141 Procedure for hearing.
(h) Evidence - (1) Jn general.
(iv) Evidence which is immaterial, irrelevant, or
unduly repetitious, or which is not of the sort upon which
responsible persons are accustomed to rely, shall be
excluded insofar as practicable.
7 C.F.R. § 1.141(h)(1)(iv).
Therefore, even if a party identifies a document as one
which that party anticipates introducing into evidence, the
administrative law judge presiding at the hearing may exclude the
document because it is immaterial, irrelevant, unduly repetitious,
or not the sort upon which responsible persons are accustomed to
rely.
Respondents attempted to introduce the Atlanta Protocol
through Jack Stepp, who could not authenticate the Atlanta
Protocol, and the ALJ properly excluded the Atlanta Protocol as
follows:
MS. CARROLL: Your Honor, could I also note for
the record an objection on foundation grounds? Unless Mr.
Stepp is going to testify that he participated in the
preparation of this document, I think there’s a foundation
problem and an authentication problem.
JUDGE BERNSTEIN: WellI think someone should
probably explain what this document is. Mr. Reinhart?
MR. REINHART: Yes?
JUDGE BERNSTEIN: Someone should explain what
this document is.
MR. REINHART: Yes, I'll be glad to. Would you
like me to explain it now?
MS. CARROLL: He’s not under oath.
JUDGE BERNSTEIN: You’re not under oath.
MR. REINHART: Oh, well, could you explain what
the document is, Mr. Stepp?
THE WITNESS: It’s just -
66
JUDGE BERNSTEIN: I don’t want you to read it,
just tell me where it came from.
THE WITNESS: It’s just -
JUDGE BERNSTEIN: I don’t want you to read it,
just tell me where it came from.
THE WITNESS: What it tells me that —
JUDGE BERNSTEIN: No, I don’t want you to tell
me what it says, I want you to tell me where it came from,
what’s the background of this?
THE WITNESS: Well, a group of veterinarians and
doctors, it was in the early ‘90s sometime I think they went
down in Georgia and they set down the rules and
regulations governing the -
JUDGE BERNSTEIN: So this is what they think
should be the standards for evaluating horses.
THE WITNESS: Horses, yes sir.
MS. CARROLL: Same objection unless any of those
- the authors of this document are here to be cross
examined. Mr. Stepp doesn’t - I assume didn’t participate
in this and doesn’t - cannot be cross examined on the
validity of the statements in here. This is a third party
document and as such it’s hearsay, it’s not regulations, it’s
opinions of third parties who are not available for cross
examination. And it is offered, I assume, to establish the
truth of the statements that it contains.
MR. REINHART: It was accepted as evidence in the
Fifth Circuit. |
JUDGE BERNSTEIN: One moment. I’ve had cases
way back in which I’ve had veterinarians testify about it,
but that’s not the case here. I think the objection is well-
founded and I will reverse my ruling and not admit the
document, since it is hearsay of a type that should not be
admitted.
Tr. 257-59. —
I also disagree with Respondents’ contention that the ALJ’s
exclusion of the Atlanta Protocol is reversible error because they
laid the proper foundation for the Atlanta Protocol through
Charles L. Thomas (Respondents’ Appeal Pet. at 5-6). I
67
thoroughly reviewed Charles L. Thomas’ testimony and cannot
locate any testimony about the Atlanta Protocol (Tr. 126-73).
Therefore, I reject Respondents’ contention that they laid the
proper foundation for the Atlanta Protocol through Charles L.
Thomas.
Further, I disagree with Respondents’ contention that the
ALJ’s exclusion of the Atlanta Protocol is reversible error because
the United States Court of Appeals for the Fifth Circuit, in Young
v. United States Dep’t of Agric., 53 F.3d 728 (5" Cir. 1995), accepted
and relied on the Atlanta Protocol (Respondents’ Appeal Pet. at 6,
8-9).
Appeal in this proceeding does not lie to the United States
Court of Appeals for the Fifth Circuit. Moreover, the two circuits
in which this case may be appealed rejected the position taken by
Respondents, which is similar to the conclusion in the Atlanta
Protocol, that palpation alone is not sufficient to determine whether
a horse is sore. In Bobo v. United States Dep’t of Agric., 52 F.3d
1406, 1412-14 (6 Cir. 1995), the Court held that, pursuant to the
Horse Protection Act, the United States Department of Agriculture
need not show inflammation or lameness, in addition to a pain
reaction, in order to conclude that a horse is sore under the Horse
Protection Act and that a finding of soreness based on the results
of digital palpation alone is sufficient to raise the presumption that
a horse is sore. In the other circuit to which appeal in this
proceeding lies, the United States Court of Appeals for the District
of Columbia Circuit held that palpation, whether used alone or not,
is an effective diagnostic technique by which to determine whether
a horse is sore. Crawford v. United States Dep’t of Agric., 50 F.3d
46, 50 (D.C. Cir.), cert. denied, 516 U.S. 824 (1995). Thus, I
conclude the ALJ’s failure to follow Young is not error.
Even if Respondents could appeal to the United States
Court of Appeals for the Fifth Circuit, I would find Young
apposite. The Court in Young held that digital palpation alone is
not a reliable method by which to determine whether a horse is
sore. However, the holding in Young is based upon a number of
factors that are not present in this proceeding. In Young, several
68
“highly qualified expert witnesses" testified for the respondents
that "soring could not be diagnosed through palpation alone."
Young, 53 F.3d at 731. Respondents, in this proceeding, did not
introduce expert witness testimony that soring could not be
diagnosed through palpation alone. Moreover, Dr. Slauter and Dr.
Smith based their determinations that Double Pride Lade was sore
not only on Double Pride Lady’s reaction to palpation, but also on
their observations of Double Pride Lady’s movement (Tr. 46, 108-
09; CX 9, CX 10).
In Young, two private veterinarians and one off-duty
Designated Qualified Person testified they examined the horse in
question immediately after United States Department of
Agriculture veterinary medical officers found the horse was sore.
These private veterinarians and the off-duty Designated Qualified
person testified they did not find the horse to be sore. Young, 53
F.3d at 731-32. The record in this proceeding does not contain any
testimony regarding an examination of Double Pride Lady
immediately after Drs. Slauter and Smith concluded their
examinations. Moreover, Mark Thomas and Bob Flynn, the two
Designated Qualified Persons who examined Double Pride Lady at
the National Walking Horse Trainers Show, determined that
Double Pride Lady was sensitive in both front feet, issued a ticket
for bilateral soring, and refused to allow Double Pride Lady to be
shown at the National Walking Horse Trainers Show. (Tr. 46-47;
CX 9, CX 10, CX 15, CX 16, CX 17.)
In Young, the administrative law judge found the
respondents’ witnesses to be more credible than the complainant’s
witnesses. Young, 53 F.3d at 732. In the instant proceeding, the
ALJ found Dr. Slauter and Dr. Smith forthright and credible
witnesses and Dr. Slauter’s affidavit (CX 9), Dr. Smith’s affidavit
(CX 10), the Summary of Alleged Violations form (CX 6), and Dr.
Slauter’s and Smith’s testimony reliable (Initial Decision and
Order at 3, 5, 7-8). The ALJ also found Respondents’ three
witnesses, none of whom examined Double Pride Lady for
compliance with the Horse Protection Act, failed to rebut
Complainant’s evidence that Double Pride Lady was sore (Initial
Decision and Order at 8).
69
EN ee ee
Finally, in Young, the administrative law judge dismissed
the complaint and the Judicial Officer reversed the administrative
law judge. Young, 53 F.3d at 732. In the instant proceeding, the
ALJ and the Judicial Officer agree that the evidence supports the
conclusion that William J. Reinhart violated section 5(2)(B) of the
Horse Protection Act (15 U.S.C. § 1824(2)(B)) by entering for the
purpose of showing or exhibiting Double Pride Lady as entry
number 146 in class number 21 at the National Walking Horse
Trainers Show in Shelbyville, Tennessee, while Double Pride Lady
was sore.
Therefore, I find Young inapposite. I find the ALJ did not
err by failing to following the holding in Young v. United States
Dep’t of Agric., 53 F.3d 728 (5 Cir. 1995).
Fifth, Respondents contend that “palpation is not in
compliance with the Horse Protection Act because this examination
is conducted while the horse is standing still with one foot off the
ground in an unnatural position and not while ‘moving’ as the
{Horse Protection] Act requires." (Respondents’ Appeal Pet. at 8.)
I disagree with Respondents’ contention that the Horse
Protection Act requires that horses must be examined while they
are moving. Respondents appear to be confusing the definition of
"sore" under the Horse Protection Act with an examination used
to determine if a horse is sore. Under the Horse Protection Act, the
term "sore" describes a horse, which, as a result of the use of a
substance or practice, suffers, or can reasonably be expected to
suffer, physical pain or distress, inflammation, or lameness when
moving. However, the Horse Protection Act does not specify the
examination required to make the finding that the horse suffers, or
can reasonably be expected to suffer, physical pain or distress,
inflammation, or lameness when moving.
Dr. Slauter testified he can determine, based upon a horse’s
reaction to palpation, whether it is reasonable to expect that the
horse will experience pain when moving, as follows:
70
BY MS. CARROLL:
Q. I may have already asked this, but if I have, please let
me know.
I wanted to ask how you determine that what the horse
is presenting to you during your examination is a response to pain
rather than to some other condition.
[BY DR. SLAUTER:]
A. There’s a number of conditions that can cause pain, but
when you get on a horse’s foot and you find localized areas of pain,
local lesions, localized areas of pain that are consistent and
repeatable, and in this case the horse that we’re talking about here
today, it was bilateral, areas of consistent repeatable pain, localized
areas of pain, not just on one foot, but two feet. And you do not see
that generalized areas of pain around the pastern, but you see areas
of - - localized areas of pain where you go back and you
consistently repeatedly get those pain responses and those are areas
where action devices will hit, on those localized areas, and if that
horse is exhibiting pain when it’s not moving or at least when I
have my hands on its foot, it’s not moving, it’s reasonable for me
to expect that when that horse gets into the show ring, you know,
hit with speed and the action devices on this particular horse
coming down on those areas, that that horse will experience even
more pain and stress on his front limbs.
Tr. 29-30.
Similarly, Dr. Smith testified he determined, based upon
Double Pride Lady’s reaction to palpation, that Double Pride Lady
would have suffered pain if she had been shown at the National
Walking Horse Trainers Show, as follows:
[BY MS. CARROLL:]
Q. Can you tell from your documentation whether this
horse would have been in pain if it had been shown in the ring
immediately following your examination?
[BY DR. SMITH:]
A. Yes.
Q. And what do you base that opinion on?
A. The locations of the painful areas on both those forefect
would be areas where an action device would fall.
71
Q. And what is — how does that tell you that the horse
would be in pain? :
A. If the horse feels pain when I am pressing on the painful
areas gently, with the flat of my thumb, certainly the pressure of a
chain coming down on that area as the horse not only walks but
canters, trots in the ring, would definitely cause pain to the horse.
Q. Would that be the case - would there be pain if there
were not action devices?
A. Well, the fact that I can elicit pain just by touching him,
I think indicates that the area is painful. Action devices would
certainly enhance that pain.
Tr. 106-07.
Moreover, Dr. Slauter and Dr. Smith did observe Double
Pride Lady’s movement and, in part, based their determinations
that Double Pride Lady was sore on their observations of her
movement (CX 9, CX 10). Drs. Slauter and Smith testified about
Double Pride Lady’s movement and the conclusions they drew
from the manner in which Double Pride Lady moved, as follows:
[BY MS. CARROLL:]
Q. And can you tell from your documentation whether this
horse would have been in pain if it had been shown in the ring?
[BY DR. SLAUTER:]
A. Yes, in my professional opinion, that horse would have
experienced pain in the show ring.
Q. And what is that opinion based on?
A. It’s based on my findings and the fact that the horse led
up reluctantly. My observation of two DQPs who checked the
horse before I did, both of them found the horse to be bilaterally
sore.
BY MS. CARROLL:
Q. Based on your documentation which contains the
statement that the horse’s way of going was stiff.
[BY DR. SMITH:]
A. Un-huh.
Q. Or appeared a little stiff, would you believe that this
horse would experience pain if it were shown in the show ring
72
immediately following your examination?
A. I'd have to say yes because he’s already showing me by
his locomotion that something’s not right. Now when I said that I
didn’t know earlier about whether or not the horse was going to
experience pain, I was specifically addressing those painful areas to
palpation, and looked at the whole picture of this particular horse,
the fact that he was already abnormal as far as his locomotion
went. Horses don’t walk cautiously without a reason. There’s
something that’s causing him to walk stiff, so that there’s
something going on.
Tr. 46, 109-09.
Sixth, Respondents contend the ALJ erroneously gave no
weight to Charles L. Thomas’ testimony (Respondents’ Appeal Pet. -
at 9-10).
Respondents do not cite the portion of the Initial Decision
and Order in which the ALJ states that he gives no weight to
Charles L. Thomas’ testimony, and I cannot locate the portion of
the Initial Decision and Order in which the ALJ states that he gives
no weight to Charles L. Thomas’ testimony.
I have carefully reviewed Charles L. Thomas’ testimony.
On the basis of that review, I find Charles L. Thomas credible.
However, Charles L. Thomas’ testimony does not rebut
Complainant’s evidence that Double Pride Lady was sore. Charles
L. Thomas testified that he observed Double Pride Lady’s
movement, but did not examine her. Charles L. Thomas also
testified that, when he observed Double Pride Lady, he formed no
opizion regarding whether Double Pride Lady was sore under the
Horse Protection Act and could not testify regarding whether
Double Pride Lady was sore when William J. Reinhart entered
Double Pride Lady at the National Walking Horse Trainers Show.
(Tr. 129, 134, 138, 145-50.)
Respondents also contend Charles L. Thomas was the chief
witness for the United States Department of Agriculture during the
administrative hearing in In re William Earl Bobo, 53 Agric. Dec.
176 (1994), aff'd, 52 F.3d 1406 (6" Cir. 1995), and the United States
73
Department of Agriculture "considers Mr. Thomas to be a valid
witness when he is testifying for the [United States Department of
Agriculture’s] side that a horse was sore, but that his testimony
deserves ‘zero weight’ when he is testifying for a [r]espondent that
the [r]Jespondent’s horse was not sore."" (Respondents’ Appeal Pet.
at 10.)
Again, Respondents fail to cite, and I cannot locate, any
portion of the Initial Decision and order in which the ALJ states
that he gives Charles L. Thomas’ testimony no weight. Moreover,
Charles L. Thomas testified that he has appeared on behalf of the
respondents in a number of administrative proceedings conducted
under the Horse Protection Act, but that he has “never testified for
the government." (Tr. 138.) A review of In re William Earl Bobo
reveals that Respondents’ contention that Charles L. Thomas as
the chief witness for the United States Department of Agriculture
is not correct end that, in Jn re William Earl Bobo, Charles L.
Thomas testified on behalf of the respondents. See In re William
Earl Bobo, 53 Agric. Dec. 186.
Seventh, Respondents contend the United States
Department of Agriculture takes the position that palpation is 100
percent accurate, subject to no possibility of error (Respondents’
Appeal Pet. at 10).
The United States Department of Agriculture has long held
that palpation is a highly reliable method for determining whether
a horse is "sore," as defined in the Horse Protection Act.” The
United States Department of Agriculture’s reliance on palpation to
determine whether a horse is sore is based upon the experience of
a large number of veterinarians, many of whom have had 10 to 20
years of experience in examining many thousands of horses as part
of their efforts to enforce the Horse Protection Act. Moreover, the
Horse Protection Regulations (9 C.F.R. pt. 11), issued pursuant to
the Horse Protection Act, explicitly provides for digital palpation
as a diagnostic technique to determine whether a horse complies
with the Horse Protection Act. However, the United States
Department of Agriculture does not take the position that
palpation is 100 percent accurate and not subject to error.
Respondents do not cite any basis for their assertion that the
74
United States Department of Agriculture takes the position that
palpation is 100 percent accurate and not subject to error, and I
cannot locate any case in which the Judicial Officer has taken that
position.
Eighth, Respondents contend the United States Department
of Agriculture does not admit or consider any evidence that
contradicts testimony given by veterinarians employed by the
United States Department of Agriculture and does not consider
evidence that challenges the United States Department of
Agriculture’s "political and programmatic agenda"!
(Respondents’ Appeal Pet. at 10-1 1).
Section 1.141(h)(1)(iv) of the Rules of Practice (7 C.F.R. §
1.141(h)(1)(iv)) provides that evidence may be excluded only as
follows:
§ 1.141 Procedure for hearing.
(h) Evidence -(1) In general. ...
(iv) Evidence which is immaterial, irrelevant, or
unduly repetitious, or which is not of the sort upon which
responsible persons are accustomed to rely, shall be
excluded insofar as practicable.
7 C.F.R. § 1.141(h)(1)(iv).
Section 1.141(h)(1)(iv) of the Rules of Practice (7 C.F.R. §
1.141(h)(1)(iv)) does not provide that an administrative law judge
or the Judicial Officer may exclude evidence merely because the
evidence contradicts testimony given by veterinarians employed by
the United States Department of Agriculture or because the
evidence challenges the United States Department of Agriculture’s
“political and programmatic agenda." Respondents do not cite
any proceeding in which an administrative law judge or the
Judicial Officer excluded evidence merely because the evidence
contradicted testimony given by veterinarians employed by the
United States Department of Agriculture or because the evidence
challenged the United States Department of Agriculture’s "political
75
and programmatic agenda." Moreover, I cannot locate any
administrative proceeding conducted under the Rules of Practice
in which an administrative law judge or the Judicial Officer
excluded evidence merely because the evidence contradicted
testimony given by veterinarians employed by the United States
Department of Agriculture or because the evidence challenged the
United States Department of Agriculture’s "political and
programmatic agenda." Further still, the record in this proceeding
does not indicate that the ALJ excluded evidence because the
evidence contradicted Dr. Slauter’s or Dv. Smith's testimony or
because the evidence challenged the United States Department of
Agriculture’s "political and programmatic agenda."
Ninth, Respondents contend United States Department of
Agriculture administrative proceedings conducted under the Horse
Protection Act are unfair because the veterinarians and
investigators who testify, the attorneys who represent the
complainants, and the administrative law judges who preside at the
hearings are all employees of the United States Department of
Agriculture (Respondents’ Appeal Pet. at 12-13).
Dr. Slauter and Dr. Smith, the two veterinarians who
testified in this proceeding; Colleen A. Carroll, the attorney who
represents Complainant; and the ALJ were United States
Department of Agriculture employees at the time of the hearing
(Tr. 4, 14, 85, 334) While J.R. Odle, the investigator who testified,
- was not an employee of the United States Department of
Agriculture at the time of the hearing, he was a former United
States Department of Agriculture employee (Tr. 174). However,
Respondents do not cite any authority for their contention that an
administrative proceeding is unfair if the veterinarians and
investigators who testify, the complainant’s attorney, and the
administrative law judge are all employed by the agency
conducting the administrative proceeding. I find Respondents’
contention is without merit.
An agency may combine investigative, adversarial, and
adjudicative functions as long as an employee or agent engaged in
the performance of investigative or prosecuting functions for an
agency in a case does not participate in or advise in the decision or
76
agency review in the case or a factually related case. (5 U.S.C. §
554(d).)'* Respondents do not assert that a United States
Department of Agriculture employee or agent engaged in the
performance of investigative or prosecuting functions in this
proceeding, participated in or advised in the ALJ’s Initial Decision
and Order, or the agency review of the ALJ’s Initial Decision and
Order. Further, the record contains no indication that a United
States Department of Agric
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