Back v. United States Department of Agriculture , 445 F. App'x 826 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0671n.06
FILED
No. 10-3455
Sep 14, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
KIMBERLY COPHER BACK; )
RICHARD EVANS, )
)
)
Petitioners, )
) ON PETITION FOR REVIEW OF
v. ) AN ORDER OF THE
) SECRETARY OF THE UNITED
UNITED STATES DEPARTMENT ) STATES DEPARTMENT OF
OF AGRICULTURE; UNITED ) AGRICULTURE
STATES OF AMERICA, )
)
) OPINION
Respondents. )
_______________________________________)
Before: CLAY and STRANCH, Circuit Judges; BARRETT, District Judge.*
JANE B. STRANCH, Circuit Judge. Petitioners Kimberly Copher Back and Richard
Evans seek review of a final decision of the Secretary of the Department of Agriculture (“USDA”)
concluding that they violated provisions of the Horse Protection Act of 1970 (“HPA”), 15 U.S.C.
§§ 1821–31, by entering and showing a sore horse named Reckless Youth in a horse show. A “sore”
horse, as this Court has previously explained, is one “on which chemicals or other implements have
been used on its front feet to make the horse highly sensitive to pain causing the horse to lift its feet
quickly, reproducing the distinctive, high-stepping gait that show judges look for in Tennessee
*
The Honorable Michael R. Barrett, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 10-3455
Back v. United States Department of Agriculture
Walking Horses.” Derickson v. United States Dep’t of Agric., 546 F.3d 335, 337 n.1 (6th Cir. 2008)
(internal quotation marks omitted). For the following reasons, we DENY the petition for review.
I. BACKGROUND
On April 20, 2007, Reckless Youth, a Tennessee Walking Horse, was entered in the Spring
Jubilee Charity Horse Show in Harrodsburg, Kentucky. The horse was trained by Evans and owned
by Back. Prior to the start of the competition, Evans presented the horse for inspection by Greg
Williams, a Designated Qualified Person (“Qualified Person”) retained by show management to
inspect participating horses. Williams, who is not a veterinarian, inspected the horse and found no
soreness or any other abnormality that would preclude it from participating in the show.
Back rode the horse during the show and finished in third place. After the show, two USDA
Veterinary Medical Officers (“VMOs” or “Vets”), Drs. Miava Binkley and Lynn Bourgeois,
independently examined Reckless Youth and concluded that it was “sore” within the meaning of the
HPA. Their examination utilized a technique called digital palpation, which involves the application
of pressure to a horse’s legs and feet to detect any unusual signs of soreness. See 9 C.F.R. §
11.21(a)(2). Binkley and Bourgeois documented their findings on a USDA Summary of Alleged
Violations form (“Violations Form”) and in affidavits executed the day after the show. When Dr.
Binkley digitally palpated Reckless Youth’s feet, she found the horse withdrew both front feet
several times and did so strongly in response to palpation of one area. Binkley found this to be “a
marked pain response.”
After finishing her examination, Binkley invited Williams to reexamine the horse. Upon
reexamination, Williams again found no sensitivity on the horse’s left foot and slight initial response
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on his right foot. Binkley testified that she observed Williams doing his reexamination and, in her
view, he applied insufficient pressure when he was doing his palpation. Williams testified to his
belief that he applied the appropriate amount of pressure.
Dr. Bourgeois then examined the horse and found results similar to Binkley. According to
Bourgeois, digital palpation of several specified parts of the horse’s feet “elicited repeated,
reproducible pain responses” that were characterized by attempts to withdraw the limb and strong
clenching of shoulder and abdominal muscles. He opined that the horse was sored by chronic
application of caustic chemicals and overwork in chains. Binkley and Bourgeois both signed the
Violations Form, which illustrated the sore locations on the horse’s feet.
On October 22, 2007, the Acting Administrator of the USDA’s Animal and Plant Health
Inspection Service (“APHIS”) initiated disciplinary proceedings against Back and Evans. The
complaint, in relevant part, alleged that Evans entered Reckless Youth in the Harrodsburg horse
show while the horse was sore in violation of 15 U.S.C. § 1824(2)(B), and that Back showed the sore
horse in violation of 15 U.S.C. § 1824(2)(A). A hearing was held before an Administrative Law
Judge (“ALJ”) on February 2, 2009.
On May 12, the ALJ issued an order dismissing the complaint, noting that the Vets relied
exclusively on digital palpation to determine whether Reckless Youth was sore. Although the ALJ
recognized that “exclusive reliance upon the use of digital palpation to determine whether a horse
has been sored has . . . been upheld in numerous cases, including both the Sixth and District of
Columbia Circuits,” he determined that the USDA’s use of the “scientific” technique had never been
evaluated using the criteria set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
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113 S. Ct. 2786 (1993). The ALJ then applied the admissibility factors set forth in Daubert, and
concluded that the use of palpation evidence to establish soreness is not sufficiently scientific to be
a reliable diagnostic means under the Daubert standard. The ALJ discredited the Vets’ findings and
determined that there was insufficient evidence that Reckless Youth was sore.
The Government filed an appeal with the USDA’s Judicial Officer (“JO”), who serves as the
Secretary’s final decisionmaking authority. See 7 C.F.R. § 2.35. On March 17, 2010, the JO
reversed the ALJ’s decision, finding that the affidavits and Violations Forms submitted by the Vets
constituted significant evidence that the horse was sore in each front foot. The JO specifically
rejected the ALJ’s critique of palpation, concluding that digital palpation is a valid and appropriate
method for determining whether horses are sore under the HPA. He also found that Williams erred
during his examination of the horse, presumably referring to Williams’ alleged failure to apply
sufficient pressure. Each of the petitioners was fined $2,000 and disqualified from showing or
exhibiting horses for one year. Petitioners filed a timely petition for review of the Secretary’s
decision in this Court.
II. ANALYSIS
A. Standard of Review
We review a decision of the USDA under the Horse Protection Act only to determine
“whether the proper legal standards were employed and substantial evidence supports the decision.”
Fleming v. United States Dep’t of Agric., 713 F.2d 179, 188 (6th Cir. 1983). “Substantial evidence
means more than a scintilla but less than a preponderance of the evidence, and must be based upon
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the record taken as a whole.” Lacy v. United States Dep’t of Agric., 278 F. App’x 616, 619 (6th Cir.
2008) (internal quotation marks omitted).
An administrative agency’s Judicial Officer “sitting in review of an ALJ’s initial decision .
. . is authorized by statute to substitute [his] judgment for that of the ALJ.” Parchman v. United
States Dep’t of Agric., 852 F.2d 858, 860 n.1 (6th Cir. 1988) (internal quotation marks omitted).
“When an administrative agency disagrees with the conclusions of its ALJ, the standard does not
change; the ALJ’s findings are simply part of the record to be weighed against other evidence
supporting the agency.” Rowland v. United States Dep’t of Agric., 43 F.3d 1112, 1114 (6th Cir.
1995) (internal quotation marks omitted). “If substantial evidence supports the Secretary’s decision
and the proper legal standards were employed, we must affirm his decision.” Id.B. Propriety of the Secretary’s Decision
The HPA, in relevant part, prohibits the “showing or exhibiting, in any horse show or horse
exhibition, of any horse which is sore.” 15 U.S.C. § 1824(2)(A). It also prohibits the “entering for
the purpose of showing or exhibiting in any horse show or horse exhibition” a “sore” horse. Id. §
1824(2)(B). As noted above, a horse is generally considered sore under the HPA “if chemicals or
other implements have been used on its front feet to make them highly sensitive to pain.” Lacy, 278
F. App’x at 619 (citing and paraphrasing statutory definition of “sore” in 15 U.S.C. § 1821(3)).
Importantly, “[i]n any civil or criminal action to enforce [the HPA] . . . a horse shall be presumed
to be . . . sore if it manifests abnormal sensitivity or inflamation in both of its forelimbs or both of
its hindlimbs.” 15 U.S.C. § 1825(d)(5). On appeal, Evans and Back assert several arguments
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challenging the JO’s determination that Reckless Youth was “sore” under the HPA. Each argument
lacks merit.
First, Evans and Back claim that the JO’s opinion was based exclusively on digital palpation,
which they contend is not a sufficiently probative and reliable method of detecting soreness.
Although a divided panel of one circuit court has been receptive to a similar argument, see Young
v. United States Dep’t of Agric., 53 F.3d 728 (5th Cir. 1995), this Court has expressly rejected it,
holding that “a finding of ‘soreness’ based upon the results of digital palpation alone is sufficient to
invoke the rebuttable presumption of 15 U.S.C. § 1825(d)(5).” Bobo v. United States Dep’t of
Agric., 52 F.3d 1406, 1413 (6th Cir. 1995); see also Martin v. United States Dep’t of Agric., 57 F.3d
1070, 1995 WL 329255, at *6 n.3 (6th Cir. 1995) (unpublished table opinion) (“emphasiz[ing] that
we have no quarrel with whether palpation is effective to determine whether a horse’s feet
experience pain”). Both Vets in this case digitally palpated Reckless Youth and both concluded that
the horse was sore. They also documented their findings shortly after the show and were subject to
cross examination before the ALJ. As this Court has recognized on multiple occasions, Vets’
findings may constitute “substantial evidence that the horse was ‘abnormally sensitive’ so as to
trigger the statutory presumption” of soreness, Martin, 1995 WL 329255, at *5, particularly where,
as here, the Vets were experienced and well-qualified. See Turner v. U.S. Dep’t. of Agric. 217 F.
App’x 462, 468 (6th Cir. 2007).
Second, Evans and Back ask this Court to re-examine our existing precedent regarding the
propriety of digital palpation as a method of detecting soreness. In particular, they rely on the
Supreme Court’s decision, Daubert v. Merrell Dow Pharmaceuticals, Inc., which established the
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general requirements for the admissibility of expert testimony under Federal Rule of Evidence 702.
509 U.S. at 592–94. Because we are bound by our previous post-Daubert holdings that digital
palpation is sufficiently probative and reliable to give rise to a presumption of soreness, we decline
petitioners’ invitation to reconsider the issue. See, e.g., Nat’l Union Fire Ins. Co. v. VP Bldgs., Inc.,
606 F.3d 835, 839–40 (6th Cir. 2010) (refusing to reconsider issue decided by previous panel
“[b]ecause [the Court is] bound by the prior panel’s decision”). Nonetheless, we note that Daubert’s
applicability to administrative proceedings is doubtful, cf. Bayliss v. Barnhart, 427 F.3d 1211, 1218
n.4 (9th Cir. 2005), and, in any event, the record before us falls short of persuading us that digital
palpation is an unreliable technique for detecting soreness.
Third, Evans and Back argue that the presumption of soreness applied in this case essentially
shifted the burden of persuasion to them, in violation of due process. Although we have embraced
a lower-court decision holding that “[d]ue process forbids the presumption . . . from shifting the
burden of persuasion to defendants,” in doing so we expressly noted that “the presumption may
constitutionally shift the burden of going forward with the evidence once the Secretary has
introduced evidence of abnormal sensitivity.” Martin, 1995 WL 329255, at *5 (quoting Landrum
v. Block, 40 Agric. Dec. 922, 925 (M.D. Tenn. 1981)) (alterations and internal quotation marks
omitted).
The ultimate burden of persuasion is not impermissibly shifted merely because the applicable
presumption relieves the Government of having to present additional evidence “that the horse was
made sore by artificial means.” Id. Accordingly, once the Government introduced the digital-
palpation evidence sufficient to give rise to a presumption of soreness, Evans and Back were
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required to rebut the presumption by, for example, presenting “credible evidence of a natural cause
for the soreness.” Id. They point to no such evidence in the record. They contend, instead, that the
presumption of soreness was sufficiently rebutted by Williams’ finding that Reckless Youth was not
sore. While a Qualified Person’s contrary finding may detract from the weight of the evidence
supporting the Government’s case, it is not necessarily sufficient to establish that a JO’s decision
lacks substantial supporting evidence. See, e.g., Groover v. USDA, 64 Agric. Dec. 1434, 1437 (6th
Cir. 2005) (holding that Secretary’s finding of soreness based on testimony from Vets was supported
by substantial evidence despite conflicting opinions of two Qualified Persons). The JO could
reasonably determine that Williams, who was not a veterinarian, was “not as careful as [he] should
have been or [was] not as expert as the VMOs.” McConnell v. United States Dep’t of Agric., 198
F. App’x 417, 422 (6th Cir. 2006). As a result, the presumption of soreness properly arising from
the findings of the Vets was not rebutted and the Secretary’s determination stands.
CONCLUSION
For the reasons stated, we find the evidence in the record to be sufficiently detailed as to
constitute substantial evidence that Reckless Youth was sore when the Vets examined him.
Accordingly, we DENY the petition for review.
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