Bradshaw v. Dept of Agriculture ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 00-60582
_______________
DAVID TRACY BRADSHAW,
Petitioner,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE
Respondent.
---------------------------------
On Petition for Review of an Order of the Secretary,
United States Department of Agriculture
99-0008
May 14, 2001
Before, JONES, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
David Bradshaw petitions this Court for review of the
Department of Agriculture’s (DOA) final administrative decision
finding that Bradshaw entered a “sore” Tennessee walking horse in
an exhibition in violation of § 1824(2)(D) the Horse Protection
Act, 15 U.S.C. §§ 1821-1831. The HPA vests this Court with
jurisdiction over such final orders. See 15 U.S.C. 1825(b)(2).
In Young v. United States Dep't of Agriculture, we
determined that a diagnosis of “soreness” based solely on digital
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
palpation was not substantial evidence sufficient to support a
violation of the HPA. 53 F.3d 728, 731 (5th Cir. 1995). We
expressed concern in Young over the reliability of digital
palpation and noted indicia in Congressional reports that digital
palpation should not be used as the sole means to determine
whether “soring” had occurred. Id. (citing Pub. L. No. 102-341,
106 Stat. 873, 881-82 (1992); H.R.Rep. No. 617, 102d Cong., 2d
Sess. 48 (1992); S.Rep. No. 334, 102d Cong.2d Sess. 49 (1992)).
We find this case sufficiently analogous to our decision in
Young. Although counsel for the DOA attempted to distinguish
Young, counsel conceded that there was little other evidence in
the record besides digital palpation to support the finding of
“soring.” The DOA's determination was thus not supported by
substantial evidence. Accordingly, we GRANT the petition for
review and REVERSE and RENDER judgment in favor of the
petitioner.
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