Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

United States Court of Appeals,
Fifth Circuit.
No. 94-40818.
Bill YOUNG and Floyd Sherman, Petitioners,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.
June 7, 1995.
Petition for Review of an Order of United States Department of
Agriculture.
Before REAVLEY and EMILIO M. GARZA, Circuit Judges, and PRADO*,
District Judge.
REAVLEY, Circuit Judge:
Bill Young and Floyd Sherman petition for review of a decision
and order of the United States Department of Agriculture concluding
that they entered or allowed entry of a "sored" Tennessee Walking
horse in a show in violation of the Horse Protection Act.
BACKGROUND
The Horse Protection Act of 1970 (the "HPA"), 15 U.S.C. § 1821
et seq., prohibits the practice of "soring" the legs of a Tennessee
Walking horse through the use of chemicals or mechanical devices.
Soring causes the horse to step more quickly and extend his legs
farther, enhancing the type of gait prized in a Walking horse. The
HPA prohibits the entry into exhibitions, or the "allowing" of
entry of any horse that is sore and provides civil and criminal
penalties. 15 U.S.C. § 1824(2)(A)-(D), § 1825. The HPA defines
*District Judge of the Western District of Texas, sitting by
designation.
1

"sore" as the following:
(3) [t]he term "sore" when used to describe a horse means
that--
(A) an irritating or blistering agent has been applied,
internally or externally, by a person to any limb of a horse,
(B) any burn, cut, or laceration has been inflicted by a
person on any limb of a horse,
(C) any tack, nail, screw, or chemical agent has been
injected by a person into or used by a person on any limb of
a horse, or
(D) any other substance or device has been used by a
person on any limb of a horse or a person has engaged in a
practice involving a horse,
and, as a result of such application, infliction, injection,
use, or practice, such horse suffers, or can reasonably be
expected to suffer, physical pain or distress, inflammation,
or lameness when walking, trotting or otherwise moving....
15 U.S.C. § 1821.
The United States Department of Agriculture (the "USDA")
implements the HPA. Designated Qualified Persons ("DQPs"),
employed by the USDA, examine horses to determine if they are fit
for exhibition at a show. The USDA also employs veterinarians
called Veterinary Medical Officers ("VMOs") to oversee the DQPs and
examine some horses.
Floyd Sherman owned and Bill Young trained a horse named "A
Mark for Me." During the pre-show inspection at the Tennessee
Walking Horse National Celebration on August 31, 1990 a DQP
rejected "A Mark for Me." At this time the USDA's sole technique
for determining whether a horse was sore in violation of the HPA
was digital palpation (digital palpation consists of pressing the
ball of the thumb into the horse's forelimbs to test for pain).
2

The DQP testified that "A Mark for Me" did not show a strong
reaction to palpation but that in 1990 the standard for prohibiting
a horse from showing was "just about any movement." The DQP
testified that while "A Mark for Me" exhibited "sensitivity," he
did not believe the horse to be sore. Two VMOs immediately
examined the horse and concluded that in their opinion the horse
was sore. "A Mark for Me" was disqualified and the USDA filed a
complaint against Young and Sherman under the HPA.
An Administrative Law Judge ("ALJ") dismissed the complaint,
finding that an encounter with another horse en route to the
pre-show inspection area caused the horse to be highly agitated and
explained its reaction to palpation. The USDA appealed to a
Judicial Officer ("JO") who reversed. The JO ordered Young and
Sherman each to pay a civil penalty of $2000 and disqualified Young
and Sherman for one year from the exhibition of horses. Sherman
and Young appeal. We reverse.
DISCUSSION
Sherman and Young contend that the USDA's decision that they
sored "A Mark for Me" was not supported by substantial evidence.
The JO's conclusion was based almost solely on the affidavits of
the two VMOs and a USDA form entitled "Summary of Alleged
Violations" filled out by the two VMOs after their inspection of "A
Mark for Me" at the show. The two USDA VMOs recorded their
observations of "A Mark for Me" on the summary report the night of
the inspection and in individual affidavits completed the next day.
These documents indicated that the VMOs concluded that "A Mark for
3

Me" was sore because the horse experienced pain when its hoof areas
were palpated. The VMOs testified before the ALJ regarding their
conclusions. Their testimony was based on their general practices
regarding this type of inspection. Neither VMO had any independent
memory regarding their inspection of "A Mark for Me."
Sherman and Young contend that these documents do not
constitute substantial evidence because they are unreliable
hearsay. They essentially contend that the documents are
unreliable because: 1) they were created with a bias towards the
Government's position; and 2) the conclusions reached in them are
based on an unreliable method of determining whether a horse has
been sored.
The Horse Protection Act states that the "findings of the
Secretary shall be set aside if found to be unsupported by
substantial evidence." 15 U.S.C. § 1825(b)(2). Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Universal Camera Corp.
v. N.L.R.B., 340 U.S. 474, 476-78, 71 S.Ct. 456, 459, 95 L.Ed. 456
(1951). This court has held that in determining whether hearsay
can constitute substantial evidence "we must look to those factors
which "assure underlying reliability and probative value' ... to
determine whether the hearsay in the present case constitutes
substantial evidence." School Bd. v. H.E.W., 525 F.2d 900, 906
(5th Cir.1976) (citing Richardson v. Perales, 402 U.S. 389, 402, 91
S.Ct. 1420, 1428, 28 L.Ed.2d 842 (1971)).
There is significant evidence in the record indicating that
4

the evidence relied on by the JO and the USDA to support a finding
of soreness is lacking in probative value and reliability. See
Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 464 (holding
that in determining whether an administrative order is based on
substantial evidence, the reviewing court must consider "whatever
in the record fairly detracts from [the] weight" of the evidence).
The VMO's testimony in this case revealed that as a general
practice VMOs prepare summary reports and affidavits only when
administrative proceedings are anticipated. See Palmer v. Hoffman,
318 U.S. 800, 63 S.Ct. 757, 87 L.Ed. 1163 (1943) (holding that an
accident report prepared by a railroad did not carry the indicia of
reliability of a routine business record because it was prepared at
least partially in anticipation of litigation); United States v.
Stone, 604 F.2d 922, 925-26 (5th Cir.1979) (holding that an
affidavit prepared by an official of the United States Treasury
Department was unreliable because it was prepared in anticipation
of litigation). More important, the VMOs admitted that they only
included observations indicating that a horse was sore and did not
include evidence indicating that a horse was not sore. The VMOs
also indicated that they were given instructions regarding how to
prepare the documents by USDA attorneys so that the documents would
support a USDA complaint under the HPA. Thus, although the authors
of the documents may have been objective in forming their opinion
(as the JO found), the documents themselves admittedly recorded a
biased account of the results of the inspection. We conclude that
their probative value is limited.
5

The reliability of the veterinarians' conclusions recorded in
the hearsay documents, based almost exclusively on the results of
digital palpation, are also called into question by significant
evidence presented at the hearing supporting the conclusion that an
observed reaction to digital palpation alone is not a reliable
indicator of a sore horse. Several highly qualified expert
witnesses for the petitioners testified that soring could not be
diagnosed through palpation alone. Petitioners also offered a
written protocol signed by a group of prominent veterinarians
coming to the same conclusion. The JO's basis for rejecting this
evidence seems to be simply that it is contrary to the agency's
policies and the agency's prior decisions.1 The JO does not point
to scientific or medical data supporting the agency's chosen
diagnostic technique. See Veal v. Bowen, 833 F.2d 693, 699 (7th
Cir.1987) (holding that "[w]here diagnoses are not supported by
medically acceptable clinical and laboratory diagnostic techniques,
this court need not accord such diagnoses great weight").
Petitioners also point out that Congress noted its
disapproval, in an appropriation bill, of soring diagnoses based
1The JO pointed out that the experts' testimony and the
protocol stated that factors other than a negative response to
palpation must be observed before a sore diagnosis can be made.
He concludes that these other factors would require the examiner
to look for signs such as redness, swelling, heat or interference
with function which the JO contends would amount to a rewriting
of the HPA by requiring symptoms of soring other than a
reasonable expectation of pain. The expert testimony and
protocol indicate that the other observations should be made in
order to determine whether the horse has propensity for pain and
are indicia of pain or repercussions of pain as well as
additional symptoms of soring.
6

solely on palpations. See Pub.L. No. 102-341, 106 Stat. 873, 881-
882 (1992); see also H.R.Rep. No. 617, 102d Cong., 2d Sess. 48
(1992); S.Rep. No. 334, 102d Cong.2d Sess. 49 (1992). Congress'
new dictates do not retroactively bind an ALJ or a JO, but they do
support a conclusion that a diagnoses based solely on palpation and
recorded only in documents constituting hearsay where no
significant cross-examination can be done do not constitute
reliable evidence.2
It is important to note that in reviewing an administrative
decision, this court must look to the evidence in "the record
considered as a whole, not just evidence supporting the [agency's]
findings." N.L.R.B. v. Pinkston-Hollar Constr. Serv., Inc., 954
F.2d 306, 309 (5th Cir.1992) (citation omitted). In this case the
petitioners also presented substantial evidence indicating that the
horse was not sore.3 The petitioners offered the testimony of two
2In a recent opinion, the D.C. Circuit rejected the argument
that palpation alone is not an accurate diagnostic technique, and
that therefore, summary reports by USDA VMOs do not constitute
substantial evidence. Crawford v. Dept. of Agriculture, 50 F.3d
46 (D.C.Cir.1995). That court noted that the fact that horse
owners subsequently succeeded in convincing Congress that digital
palpation is unreliable is not relevant to the question of
whether the USDA appropriately relied on palpation as a technique
in the past. In the present case, however, the petitioners also
offer medical evidence--expert testimony and a written protocol--to
support the conclusion that digital palpation is not a reliable
diagnostic technique.
3In cases rejecting the appeals of trainers and owners
contesting a soreness finding on the grounds that VMO affidavits
and summary reports cannot constitute substantial evidence, both
the Third and Sixth Circuits found it important that the
petitioners in the cases before them presented no
counter-evidence, aside from the petitioner's own testimony,
showing that the horse in question was not sore. Gray v.
U.S.D.A., 39 F.3d 670, 676 (6th Cir.1994); Wagner v. Dept. of
7

private veterinarians and one off-duty DQP who examined "A Mark for
Me" immediately after inspection by the VMOs. All three testified
that they did not find soring.4 Indeed, the testimony of the
Government's DQP that he did not believe the horse to be sore also
supports the conclusion that the horse was not sore.
In cases where the Secretary of an agency does not accept the
findings of the ALJ, this court " "has an obligation to examine the
evidence and findings of the [JO] more critically than it would if
the [JO] and the ALJ were in agreement.' " Pinkston-Hollar Const.
Services, Inc., 954 F.2d at 309-310 (citation omitted); Garcia v.
Secretary of Labor, 10 F.3d 276, 280 (5th Cir.1993) (stating that
"[a]lthough this heightened scrutiny does not alter the substantial
evidence standard of review, it does require us to apply it with a
particularly keen eye, especially when credibility determinations
are in issue....). The ALJ specifically found petitioners'
witnesses' testimony to be more credible than the VMOs' testimony
as reported in the summary report and affidavits. The JO made the
opposite credibility determination essentially because he concluded
that the private veterinarians could not be unbiased since their
livelihoods' depended on their being in horse owners' good favor.
If this rationale were accepted, a trainer or owner would never be
Agriculture, 28 F.3d 279, 282-83 (3d Cir.1994).
4The JO discounts this testimony stating that there is a
possibility that an anesthetic had been applied to the horse's
leg before the examination. His basis for this conclusion is
pure speculation. There is no evidence in the record indicating
that an anesthetic was used and the JO even admits that the
evidence shows that it would be difficult for one to have been
applied out of public sight.
8

able to counter a Government veterinarian's conclusion with the
conclusion of a private veterinarian because private practitioners
will always be dependent, in some way, on horse owners. We
therefore reject the JO's basis for finding the petitioners'
witnesses lacking in credibility.
The question regarding the credibility of the Government's
witnesses is not whether their testimony on the stand should be
found credible, because they could not testify as to whether "A
Mark for Me" was sore at that time. Both VMOs admitted that they
did not have a current recollection of the inspection. The
question is whether the documentary evidence of soreness presented
by the Government was credible. We hold that in light of the
significant evidence calling into question the probative value and
reliability of that documentary evidence where we are required to
apply stricter scrutiny to the JO's conclusions which contradict
the ALJ and in light of the substantial counter-evidence indicating
that the horse was not sore, the JO's determination was not
supported by substantial evidence and his decision should be
reversed and judgment should be rendered in favor of Young and
Sherman.5
REVERSED AND RENDERED.
EMILIO M. GARZA, Circuit Judge, dissenting:
The only question before us is not whether "A Mark for Me" was
5Sherman also argued that even if the finding that the horse
was sore is correct, he should not be found liable without a
showing that he knew that the horse was sore. Our determination
with respect to the soreness finding makes it unnecessary for us
to address this issue.
9

in fact sore, but whether there is substantial evidence to support
the USDA's decision that the horse was sore. Based on the two
VMO's "objective" opinions, see maj. op. at 6 (acknowledging
objectivity of VMOs), I would hold that there is substantial
evidence,1 and, accordingly, I respectfully dissent.

1See Crawford v. U.S. Dep't of Agriculture, 50 F.3d 46
(D.C.Cir.1995) (noting that the relevant standard was the law at
the time of the events at issue, and holding that "we have no
legitimate basis to reject digital palpation as a diagnostic
technique, whether used alone or not, prior to the passage of the
[new law]" that rejected digital palpation as a sole diagnostic
method).
10