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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Appendix — Reinhart v. Department of Agriculture · 538 U.S. 979 | Frix