F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 2 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ROBERT B. McCLOY, JR.,
Petitioner,
No. 02-9543
v.
UNITED STATES DEPARTMENT
OF AGRICULTURE,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE SECRETARY,
UNITED STATES DEPARTMENT OF AGRICULTURE
(D.C. No. HPA 99-0020)
Todd O. Lafferty, Gibson, Ochsner & Adkins, L.L.P., Amarillo, Texas, for
Petitioner.
Stephen M. Reilly, (James Michael Kelly, Deputy General Counsel, and
Margaret M. Breinholt, Assistant General Counsel, on the brief), Office of the
General Counsel, U.S. Department of Agriculture, Washington, D.C., for
Respondent.
Before KELLY, HENRY, and HARTZ, Circuit Judges.
HARTZ, Circuit Judge.
Petitioner Robert B. McCloy, Jr., appeals from an order of the Secretary of
Agriculture (the Secretary) finding him liable under the Horse Protection Act
(HPA), 15 U.S.C. §§ 1821-31, for allowing a sore horse to be entered in a horse
show. We have jurisdiction under 15 U.S.C. § 1825(b)(2), and we affirm.
BACKGROUND
Congress enacted the HPA in 1970 to combat the “cruel and inhumane”
practice of soring Tennessee Walking Horses in order to improve their
performance at horse shows. 15 U.S.C. § 1822. “If the front feet of the horse
were deliberately made sore, the intense pain which the animal suffered when
placing his forefeet on the ground would cause him to lift them up quickly and
thrust them forward, reproducing exactly the desired gait.” H.R. Rep. No. 91-
1597 (1970), reprinted in 1970 U.S.C.C.A.N. 4870, 4871. “[S]oring is usually
done by applying a blistering agent, such as oil of mustard, to the pastern area of
the horse’s leg and by wrapping this area with chains or metal rollers.” Id.
The HPA prohibits:
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.
15 U.S.C. § 1824(2). Those found in violation of the HPA are subject to civil
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penalties of up to $2,200 for each violation and suspension from showing horses
for a period of at least one year. See 15 U.S.C. § 1825(b)(1); 7 C.F.R.
§ 3.91(b)(2)(vii) (adjusting fine upward to $2,200 in accordance with Federal
Civil Penalties Inflation Adjustment Act of 1990); 15 U.S.C. § 1825(c). Knowing
violations are subject to criminal penalties. 15 U.S.C. § 1825(a). The HPA
authorizes the Secretary “to issue such rules and regulations as he deems
necessary to carry out the provisions of [the HPA].” 15 U.S.C. § 1828.
Dr. McCloy purchased Ebony’s Threat’s Ms. Professor (Missy), a
Tennessee Walking Horse, in 1995 and placed her with trainer Ronal Young in
1997. According to Dr. McCloy, he instructed Young that “[t]here was no need to
sore the horse,” Tr. 152, and he made unannounced visits to Young’s stables to
insure that Missy was not sored, Tr. 170, although Dr. McCloy also admits in his
affidavit that he gave Young “no verbal or written instructions concerning the
training of [Missy]. Mr. Young was given complete custody in training the
horse.” Complainant’s Exh. 4. Despite the apparently inconsistent testimony, the
Judicial Officer (JO) for the United States Department of Agriculture (USDA)
found that Dr. McCloy had given Young a genuine instruction not to sore Missy.
Aplt. App. I at 58.
Missy was entered in the 60th Annual Tennessee Walking Horse National
Celebration in Shelbyville, Tennessee, on September 4, 1998. Officials from the
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horse show inspected Missy and disqualified her from participating on the ground
that she was sore. Two veterinarians from the Animal and Plant Health
Inspection Service (APHIS), an agency of the USDA, then examined Missy and
determined that she was indeed sore. Dr. McCloy learned of the disqualification
while watching the show in the stands and testified later that he was not aware
that Missy would be shown.
The APHIS filed a complaint against Dr. McCloy in May of 1999. An
Administrative Law Judge (ALJ) determined on August 10, 2001, that
Dr. McCloy had violated the HPA by allowing entry of a sore horse and assessed
a fine of $2,200. On appeal to the JO, the APHIS argued that Dr. McCloy should
also be disqualified from showing horses for a period of time; and Dr. McCloy
argued that the ALJ had erred in concluding that he had violated the HPA. On
March 22, 2002, the JO filed a 73-page opinion affirming the finding that
Dr. McCloy violated the HPA, affirming imposition of the $2,200 fine, and
additionally imposing a one-year disqualification period.
The JO determined that the “evidence establishes that [Dr. McCloy] did not
know that Ronal Young entered Missy . . . until he was informed . . . that Missy
had been ‘turned down,’” and the JO also noted that there is “no evidence that
[Dr. McCloy] objected to his trainers entering Missy in horse shows or horse
exhibitions, and, specifically, the record contains no evidence that [Dr. McCloy]
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objected to Ronal Young’s entering Missy in the 60th Annual Tennessee Walking
Horse National Celebration.” Aplt. App. I at 28-29. Adopting the USDA’s
position on what constitutes “allowing” a sore horse to be entered, the JO further
found that Dr. McCloy was a “guarantor that Missy would not be sore when Ronal
Young entered Missy in the 60th Annual Tennessee Walking Horse National
Celebration . . . [and] . . . [Dr. McCloy] breached his guarantee as a horse owner
that Ronal Young . . . would not enter Missy in the [show] . . . while she was
sore.” Id. at 29-30. The Secretary’s position, as characterized by the JO, is that
“a horse owner who allows a person to enter the owner’s horse in a horse show or
horse exhibition for the purpose of showing or exhibiting the horse is a guarantor
that the horse will not be sore when the horse is entered in that horse show or
horse exhibition.” Id. at 28 (citing In re Carl Edwards & Sons Stables, 56 Agric.
Dec. 529, 589-90 (1997); In re Gary R. Edwards, 55 Agric. Dec. 892, 979 (1996);
In re John T. Gray, 55 Agric. Dec. 853, 888 (1996)). A subsequent motion for
reconsideration was denied, and Dr. McCloy filed a timely petition for review
with this court.
DISCUSSION
Our review of the JO’s decision is limited to determining “whether the
proper legal standards were employed and substantial evidence supports the
decision.” Gray v. USDA, 39 F.3d 670, 675 (6th Cir. 1994) (internal quotation
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marks omitted); see also 15 U.S.C. § 1825(b)(2) (“[F]indings of the Secretary
shall be set aside if found to be unsupported by substantial evidence.”). Dr.
McCloy challenges both the legal standard employed by the JO and the
sufficiency of the evidence to support the JO’s findings. We begin with the
challenge to the legal standard.
Section 1824(2) of the HPA prohibits:
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.
Clause (D) is the clause that governs the liability of owners. It states that the
owner is liable for “allowing any activity described in clause (A), (B), or (C)
respecting a horse which is sore.” The decisive question is what must the owner
allow if he is to be liable. The USDA reading of the statute is that the owner
need only allow the entry of the horse in a show, the sale of the horse, etc. The
fact of the horse’s being sore is not a component of what the owner must allow.
The owner need have no knowledge of the horse’s being sore, nor need the owner
bear any fault with respect to the soring. If, for example, the owner allows a
horse to be entered in an exhibition, then the owner is liable if it turns out that the
horse was sore. We will refer to this interpretation as the “simply-allowing”
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interpretation.
The alternative reading of the statute is that the owner must allow not just
the entry of a horse, but the entry of a sore horse. If that is the proper reading of
the statute, there remains the issue of what it means to “allow” the entry of a sore
horse. One could say that the owner “allows” the entry of a sore horse only if the
owner knows the horse is sore. Or one might say that an owner can “allow” such
entry by failing to take reasonable steps to prevent the horse from being entered
when sore. Or one might interpret “allow” to require some other degree of
responsibility by the owner. All such interpretations, however, would require
some element of owner responsibility for the soring itself. We will refer to these
interpretations as “allowing-plus” interpretations. Dr. McCloy argues for an
allowing-plus interpretation. He contends that USDA’s contrary construction of
the statute is simply wrong.
When an agency charged with the administration of a statute consistently
applies a reasonable construction of the statute in the course of formal
adjudication, we ordinarily defer to that construction. See SEC v. Zandford, 535
U.S. 813, 819 (2002) (consistent interpretation of § 10(b) by SEC in formal
adjudication is entitled to deference if reasonable); United States v. Mead Corp.,
533 U.S. 218, 229-30 (2001); Crawford v. USDA, 50 F.3d 46, 50-51 (D.C. Cir.
1995) (deferring to USDA interpretation of § 1824(2)). There can be no dispute
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that the USDA is charged with administering the HPA, and that it has consistently
interpreted § 1824(2)(D) in the context of formal adjudication. But there is a
circuit split regarding whether the USDA’s construction of the HPA with respect
to owner liability is reasonable. Compare Crawford v. USDA, 50 F.3d 46, 50-51
(D.C. Cir. 1995) (deferring to USDA interpretation of § 1824(2)) with Baird v.
USDA, 39 F.3d 131, 137 n.10 (6th Cir. 1994) (USDA interpretation does not
“fall[] within the range of permissible interpretations”). In our view, the USDA
interpretation is a reasonable one. That interpretation is supported by the
following analysis.
The key to deciding what the statute requires the owner to allow is the
phrase “respecting a horse which is sore” in clause (D). The inclusion of this
phrase supports the “simply-allowing” interpretation, because, as we now proceed
to explain, the phrase would seem to serve no purpose if the statute were intended
to impose an “allowing-plus” requirement for liability.
With the words “respecting a horse which is sore” deleted from clause (D),
§ 1824(2) would prohibit:
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) by the owner of such
horse.
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The natural reading of the subsection as so rewritten would be that clause (D)’s
phrase “activity described in clause (A)” (and similarly for clauses (B) and (C))
refers to “showing or exhibiting, in any horse show or horse exhibition, of any
horse which is sore.” (emphasis added). With the words “respecting a horse
which is sore” omitted, there would be no reason to construe the “activity
described in clause (A)” as anything other than the activity described by all the
words in clause (A). Accordingly, clause (D) would prohibit the owner from
“allowing” the “showing or exhibiting, in any horse show or exhibition, of any
horse which is sore.” The statutory language would seem to call for an allowing-
plus interpretation. To be liable, the owner would have to bear some measure of
responsibility (the precise measure being unnecessary to decide for present
purposes) for the soring.
This construction becomes questionable, however, once the words
“respecting a horse which is sore” are reinserted in clause (D). When those words
are added, what the owner is prohibited from doing is “allowing any activity
described in clause (A), (B), or (C) respecting a horse which is sore.”
Consequently, the “activity described in clause (A)” cannot be the activity
described by all the words in clause (A): “showing or exhibiting, in any horse
show or horse exhibition, of any horse which is sore.” If that were the “activity
described in clause (A),” then clause (D), as written in the statute, would prohibit
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an owner from “allowing [the showing or exhibiting, in any horse show or horse
exhibition, of any horse which is sore] respecting a horse which is sore.” The
words “respecting a horse which is sore” would become sloppy surplusage.
Under a long-standing canon of statutory interpretation, one should avoid
construing a statute so as to render statutory language superfluous. See, e.g., Oxy
USA, Inc. v. Babbitt, 268 F.3d 1001, 1006 (10th Cir. 2001) (en banc). That canon
is particularly apt and persuasive here, because in this short subsection the
uselessness of the words “respecting a horse which is sore” could not have
escaped the drafters’ notice. Thus, one could reasonably conclude that in clause
(D) the words “activity described in clause (A)” (and similarly for (B) and (C))
should be interpreted as “showing or exhibiting [a horse] in any horse show or
horse exhibition,” not “showing or exhibiting, in any horse show or horse
exhibition, of any horse which is sore.”
Proceeding, then, from this construction of the phrase “activity described in
clause (A),” what clause (D) prohibits an owner from doing is “allowing [the
showing or exhibiting in any horse show or horse exhibition] respecting a horse
which is sore.” This can reasonably be read to say that what the owner must
“allow” is merely the showing or exhibiting of the horse, but that there is no
violation unless the showing or exhibiting was with respect to (i.e., involved) a
sore horse. In other words, the statute prohibits “simply allowing.” The language
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might also support an allowing-plus interpretation—that what the owner is
prohibited from doing is allowing the showing or exhibiting of a sore horse. But,
as explained above, one would reach this interpretation even if the words
“respecting a horse which is sore” were deleted from clause (D). Why would the
drafters bother to insert the phrase “respecting a horse which is sore,” if the same
meaning would be conveyed (indeed, conveyed more clearly) without the phrase?
Again, the USDA could properly avoid construing the statute so as to render
statutory language surplusage. See Oxy USA, 268 F.3d at 1006.
In sum, the words “respecting a horse which is sore” in clause (D) pose a
significant obstacle to an allowing-plus interpretation of the clause—an
interpretation that would limit the prohibition to allowing, for example, the entry
of a sore horse. If that were the intended meaning, it would have been easier, and
cleaner, to convey the point by omitting the words “respecting a horse which is
sore” from § 1824(2)(D). Reluctant to assume that the drafters were trying to be
clumsy and confusing, the USDA could reasonably read the statute to say that if a
sore horse is entered in a show, etc., the owner is liable simply for allowing it to
be entered, regardless of whether the owner is implicated in any way (by intent,
negligence, or even failure to exercise greater control) in the soring.
Moreover, the USDA’s interpretation of the statute does not produce a
remarkable result. In essence, it imposes on the owner a nondelegable duty not to
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engage in the practice of soring. This may be a heavy burden on owners. But it
may be justified as a prophylactic measure necessary to ensure that trainers have
no incentive to sore their horses. See Crawford, 50 F.3d at 51-52. Although
some circuits appear reluctant to uphold sanctions when there is uncontradicted
testimony that the owner instructed the trainer not to engage in soring, see, e.g.,
Burton v. USDA, 683 F.3d 280, 283 (8th Cir. 1982), one can be skeptical of self-
serving testimony to that effect by the owner or trainer. Of course, when an
owner can convince the USDA of his or her efforts to prevent soring, the agency
may decide to impose only a light sanction or none at all. See 15 U.S.C.
§ 1825(b)(1). (Also, recall that criminal penalties are authorized only for
knowing violations of § 1824. See 15 U.S.C. § 1825(a).)
As for Dr. McCloy’s challenge to the sufficiency of the evidence, we need
only find that there was sufficient evidence for the JO to be persuaded that the
trainer had authority to enter Missy in the show. The JO wrote the following:
[T]he record is clear that Respondent allowed Ronal Young to
enter Missy in the 60th Annual Tennessee Walking Horse National
Celebration. Respondent testified that trainers who Respondent
hired, including Ronal Young, entered Missy in horse shows and
horse exhibitions approximately 25 times before September 4, 1998,
and Ronal Young entered Missy in at least two horse shows or horse
exhibitions after September 4, 1998 (Tr. 151, 174-75). The record
contains no evidence that Respondent objected to his trainers
entering Missy in horse shows or horse exhibitions, and, specifically,
the record contains no evidence that Respondent objected to Ronal
Young’s entering Missy in the 60th Annual Tennessee Walking
Horse National Celebration for the purpose of showing or exhibiting
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Missy in that horse show. Moreover, Respondent does not contend
that he did not allow Ronal Young to enter Missy in the 60th Annual
Tennessee Walking Horse National Celebration.
In addition, there was no evidence that Dr. McCloy ever complained to Young
about having entered Missy.
In our view, the JO could reasonably infer that Young had authority to enter
Missy in shows and exhibitions without obtaining specific approval for each
entry.
CONCLUSION
Holding that the JO employed the proper legal standard and that his
decision is supported by substantial evidence, we AFFIRM the Secretary’s
decision.
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No. 02-9543, Robert B. McCloy v. United States Department of Agriculture
KELLY, Circuit Judge, dissenting.
The court adopts the USDA’s position that an owner is liable regardless of
knowledge or fault for a sore horse. See Crawford v. USDA, 50 F.3d 46, 50-51
(D.C. Cir. 1995). In so doing, the court ignores the language of the statute and
does not consider the language as a whole and rejects an interpretation that would
require the USDA to prove that the owner is somehow responsible for the soring,
either by authorizing, condoning, or remaining deliberately ignorant about it. See
Lewis v. Sec’y of Agric., 73 F.3d 312, 315-16 (11th Cir. 1996); Baird v. USDA,
39 F.3d 131, 136 (6th Cir. 1994); Burton v. USDA, 683 F.2d 280, 282-83 (8th
Cir. 1982). According to the court, the key to this issue is contained in a phrase
used in § 1824(2)(D)–“respecting a horse which is sore.” The court reasons that
this phrase could not mean the same thing as “any horse which is sore,” which is
used three times before in the statute. According to the court, the phrase “any
horse which is sore” does not inform the reading of § 1824(2)(D); rather,
“respecting a horse which is sore” means that entering, showing, or exhibiting a
horse in a horse show results in liability if the horse turns out to be sore.
In my view, the court reads far too much into what appears to be ordinary
language rather than perfection in draftsmanship. This novel approach to the
statute is not that of the USDA, although surely the USDA will agree with the
result. According to the USDA, “[w]hether [Dr.] McCloy violated the HPA turns
on the meaning of the term ‘allow.’” Respondent’s Br. at 15. I agree, and note
that several other circuits resolved the issue based upon the meaning of “allows.”
Regardless of whether “respecting a horse which is sore” is surplusage, it is clear
that the statute prohibits entering, showing or exhibiting a sore horse,
§ 1824(2)(A)–(B), and also prohibits an owner allowing such entry, show or
exhibition. § 1824(2)(D).
The USDA contends that the act of entering a sore horse establishes
liability under § 1824(2)(B), so in like manner § 1824(2)(D) should do the same
for owners. Respondent’s Br. at 14-16. The fact that the statute differentiates
between those who directly enter, show, or exhibit horses and those who do not
suggests just the opposite. The USDA’s interpretation reads “allows” out of the
statute. Cf. Baird, 39 F.3d at 137 n.10 (refusing to extend Chevron deference to
USDA’s interpretation of § 1824(2)(D) because it would render the term “allow”
a nullity). Congress chose a more nuanced approach. The term “allow” connotes
more than strict liability (or the liability of a guarantor)–according to the Oxford
English Dictionary the term means “[t]o praise, commend, approve of,” or “[t]o
admit the realization of, permit.” Oxford English Dictionary (2d ed. 1989).
The undisputed testimony of Dr. McCloy was that he was not even aware
that Missy would be shown on the day the horse was disqualified for being sore
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before the show. Dr. McCloy further offered uncontradicted testimony that he did
not praise, commend, or approve of soring Missy, nor did he permit it in any
meaningful sense. Rather, Dr. McCloy made unannounced visits to check on
Missy and, in the JO’s own words, the USDA “did not prove that [Dr. McCloy’s]
admonitions directed to Ronal Young concerning the soring of Missy constituted
merely a pretext or a self-serving ruse.” Id. at 38. In light of these facts and my
interpretation of § 1824(2)(D), I would hold that Dr. McCloy cannot be held
liable for violating the HPA. See Lewis, 73 F.3d at 315-17.
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