[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 21, 2007
No. 06-11571 THOMAS K. KAHN
________________________ CLERK
DOA No. 02-0001-HPA
CHRISTOPHER JEROME ZAHND,
Petitioner,
versus
SECRETARY OF THE DEPARTMENT OF AGRICULTURE,
Respondent.
________________________
Petition for Review of a Decision of the
Department of Agriculture
_________________________
(February 21, 2007)
Before BIRCH and PRYOR, Circuit Judges, and NANGLE,* District Judge.
PRYOR, Circuit Judge:
This petition for review of an order of the Secretary of the United States
*
Honorable John F. Nangle, United States District Judge for the Eastern District of
Missouri, sitting by designation.
Department of Agriculture presents the following issue: whether substantial
evidence supports the decision of a Judicial Officer for the Department of
Agriculture that Lady Ebony’s Ace, a four-year-old Tennessee Walking Horse, was
sore within the meaning of the Horse Protection Act, 15 U.S.C. §§ 1821-1831,
when she was entered in a horse show in Shelbyville, Tennessee, on May 25, 2000.
After two veterinarians for the Department of Agriculture inspected Lady Ebony’s
Ace at the show, a ticket was issued charging Christopher Jerome Zahnd, the
horse’s trainer, and Ronald Beltz, the horse’s owner, with violating the Horse
Protection Act by entering a sore horse. Following a hearing, an Administrative
Law Judge dismissed the complaint because he found that Zahnd had rebutted the
statutory presumption of violation, but a Judicial Officer reversed. The Judicial
Officer relied on the expert testimony of a veterinarian who examined the horse.
After thorough review of the record, we affirm.
I. BACKGROUND
On the morning of May 25, 2000, Zahnd loaded Lady Ebony’s Ace into a
horse trailer at his stable in Trinity, Alabama. Zahnd then drove to the 30th
Annual Spring Fun Show Preview “S.H.O.W. Your Horses” in Shelbyville,
Tennessee. Lady Ebony’s Ace spent the greater part of the day in the trailer
because, in addition to driving time, Zahnd stopped for several hours at a horse sale
and a stall had not been procured for the use of Lady Ebony’s Ace before the show.
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When Lady Ebony’s Ace was unloaded from the trailer, shortly before her pre-
show inspection, she had been in the horse trailer for eleven to twelve hours. After
she was unloaded, Lady Ebony’s Ace was examined by Zahnd and Larry Joe
Appleton Jr., who was acting as Zahnd’s groom for the night. Neither Zahnd nor
Appleton observed any abnormal responses from the mare.
Lady Ebony’s Ace was then examined by Charles Thomas, the Designated
Qualified Person hired by the Spring Fun Show to ensure compliance with the
Horse Protection Act, and two veterinarians for the Department of Agriculture,
Drs. Clement Dussault and John Guedron. The purpose of that examination is to
determine whether the horse is sore, that is, whether a horse has been abused with
chemical or mechanical devices and will feel pain when moving. The typical
examination takes a minute to a minute and 15 seconds and involves two stages.
First, the horse is observed as it walks around a cone. Second, the feet and legs of
the horse are palpated with thumb pressure.
Thomas examined Lady Ebony’s Ace twice. After his examination, Thomas
disqualified her from showing that night. Thomas noted that Lady Ebony’s Ace
reacted to palpation on both front feet and walked slowly with a slight pull on the
reins when led. Thomas noted a mild reaction on the left front foot outside and a
stronger reaction on the right front foot outside. Thomas did not find a violation of
the Horse Protection Act.
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Lady Ebony’s Ace was then examined by Dr. Dussault. Dr. Dussault
observed that Lady Ebony’s Ace moved “somewhat freely” as she moved around
the cone. On palpation, Dr. Dussault observed that Lady Ebony’s Ace withdrew
her foot when he palpated the medial and lateral aspects of both the left and right
front pasterns. Dr. Dussault described the reaction as moderate. Based on his
observations, Dr. Dussault requested that Dr. Guedron examine Lady Ebony’s Ace.
During his examination, Dr. Guedron observed that, as she walked around
the cone, Lady Ebony’s Ace walked slowly “with a shortened gait and was
reluctant to lead.” On physical examination, Dr. Guedron observed “strong,
consistent and repeatable pain responses . . . to digital palpation of both the medial
and lateral heel bulbs” of the left foot. On the right foot, Dr. Guedron also
observed “strong, consistent and repeatable pain responses to digital palpation of
the same areas of the pastern as described for the left foot.”
After their examinations, Dr. Dussault and Dr. Guedron conferred and
agreed that Lady Ebony’s Ace was sore as defined by the Horse Protection Act. In
separate affidavits, both doctors gave their opinion that the horse had been sored
by use of chemical or mechanical means. Zahnd and Beltz were each issued tickets
that alleged violations of the Horse Protection Act.
On October 25, 2001, the Acting Administrator of the Animal and Plant
Health Inspection Service of the Department of Agriculture filed a complaint
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against Beltz and Zahnd and alleged that Lady Ebony’s Ace had been entered in
the show in Shelbyville for the purpose of showing while she was sore. A hearing
was scheduled for June 3, 2004. Because Dr. Guedron was unavailable to testify
on that date, the hearing was rescheduled to December 1, 2004. Before the
rescheduled hearing, the complaint against Beltz was settled, which left Zahnd as
the only respondent.
At the hearing, the Secretary offered the testimony of Dr. Dussault and eight
exhibits, which consisted of the affidavits of Thomas, Dr. Dussault, Dr. Guedron,
and Zahnd, the DQP ticket and examination sheet, the violation ticket issued by the
Department, and a video of the examination proceedings. Zahnd and Appleton
testified for Zahnd. Dr. Guedron did not testify.
Dr. Dussault testified that, during an examination, he looks for odors,
scarring, or evidence of other artificial substances on a horse’s leg. With regard to
palpation, Dr. Dussault looks for a repeated response such as withdrawal of the
foot as a sign of pain. Dr. Dussault testified that the pressure typically applied
during palpation is enough to blanch the thumbnail. Dr. Dussault testified that
palpation alone would not cause a horse to feel pain or move but jabbing a horse
could make it move.
With regard to his examination of Lady Ebony’s Ace, Dr. Dussault testified
that, when he palpated the lateral part of the horse’s pastern, she withdrew her foot,
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which is a sign of pain. Dr. Dussault did not observe any smells or scarring on
Lady Ebony’s Ace and did not recall any hair loss. On cross-examination, Dr.
Dussault agreed that increased reactions to multiple palpations could be a sign
either that the horse was feeling more pain or that the horse was irritated. Dr.
Dussault also agreed that a horse that had been in a trailer all day could be more
aggravated than a horse that had been in a stall, but opined that he did not believe
Lady Ebony’s Ace was aggravated because she only responded when palpated on
the lateral part of her pastern.
Appleton testified first for Zahnd. Appleton testified that Lady Ebony’s Ace
had spent eleven to twelve hours in a trailer on the day of the show and that the
trailer was “pretty unstable” when moving. With regard to his examination of
Lady Ebony’s Ace before the inspection by the Designated Qualified Person.
Appleton testified that he did not observe any reactions. Appleton testified that a
horse will become more irritated with repeated mashing of its foot and that,
depending on the manner of mashing, an examiner can obtain a different reaction
from a horse. Appleton also observed that, at least once during the examinations of
Lady Ebony’s Ace, another horse walked directly behind her. According to
Appleton, most of the time a horse will move if another horse walks behind it
during inspection. Appleton admitted, on cross-examination, that he was not a
veterinarian.
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Zahnd then testified on his own behalf. Zahnd testified that his occupation
was training Tennessee Walking Horses and that he had been in that field for
fifteen years. Zahnd testified that he showed Lady Ebony’s Ace eight to ten times
a month from March to November 2000. The instant citation was the only one
Zahnd had ever received. Zahnd testified that, on the night of the Spring Fun
Show, both he and Appleton examined Lady Ebony’s Ace before the official
inspection and he did not observe any response to palpation during either
examination. Zahnd testified that the kind of pressure used on a horse could affect
the strength of the reaction. Zahnd also testified that Lady Ebony’s Ace was a
“little bit stubborn and hateful thing” and that if her routine was changed she could
become irritated. Zahnd observed that, during one of the examinations, Lady
Ebony’s Ace was resting her back foot in a position that a horse will not take if it is
sore. Zahnd testified that he did not know during which inspection the horse rested
her back foot. In addition, Zahnd testified that if you poke on a horse’s foot
enough times eventually she will move. Zahnd testified that, in his experience,
hair loss or scarring is apparent on 90 percent of sored horses. On cross-
examination, Zahnd admitted that he was not a veterinarian and a veterinarian
should know more, “without a doubt,” about whether a horse is sore.
After consideration of the evidence, the Administrative Law Judge
dismissed the complaint. The Administrative Law Judge concluded that the
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Secretary had established the statutory presumption that Lady Ebony’s Ace was
sore, 15 U.S.C. § 1825(d)(5), but Zahnd had rebutted the statutory presumption.
The Administrative Law Judge concluded that Zahnd had rebutted the presumption
of soreness with evidence that the reactions of Lady Ebony’s Ace could be
attributed to multiple factors, including her temper and her long day spent in a
trailer. The Administrative Law Judge was also influenced in his decision by the
lack of any physical indicia of soring; the failure of Dr. Guedron to testify,
specifically with regard to his manner of palpation; the lack of any rebuttal
evidence to contradict Zahnd’s explanations for the mare’s behavior; and Zhand’s
unblemished record of compliance with the Horse Protection Act.
On appeal, the Judicial Officer reversed the Administrative Law Judge.
After making independent findings of fact, the Judicial Officer summarily
concluded that Zahnd’s evidence was not sufficient to rebut the statutory
presumption and did not outweigh the evidence that Lady Ebony’s Ace was sore.
The Judicial Officer then addressed the conclusions of the Administrative Law
Judge and his disagreements with those conclusions. The Judicial Officer found
that the failure of Dr. Guedron to testify was not a detriment to the Secretary’s case
because the pressure used by Dr. Guedron in palpating Lady Ebony’s Ace was
irrelevant. With regard to the absence of scarring, chemical odor, and hair loss, the
Judicial Officer found that, according to the policy of the Secretary of Agriculture,
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digital palpation alone is a highly reliable method of determining whether a horse
is sore. Based on his “personal experience with Horse Protection Act cases,” the
Judicial Officer disagreed with the conclusion of the Administrative Law Judge
that “scarring, chemical odor, and hair loss are the three most common indicia of
the use of mechanical or chemical soring devices” and noted that Dr. Dussault
testified that soreness was possible without odor or hair loss. The Judicial Officer
rejected Zahnd’s explanations for the reactions of Lady Ebony’s Ace because he
concluded that Lady Ebony’s Ace was not a “silly” horse, that is, a horse that
moves no matter where it is touched. The Judicial Officer reviewed a videotape of
the examinations by Thomas, Dussault, and Guedron to support his finding.
Finally, the Judicial Officer found that Zahnd’s record of compliance was
irrelevant to the question whether Lady Ebony’s Ace was sored. The Judicial
Officer did not otherwise explain his conclusion that Lady Ebony’s Ace was
proven sore and that Zahnd did not rebut the presumption. The Judicial Officer
imposed a fine of $2200 and disqualified Zahnd from showing or exhibiting for
one year.
II. STANDARD OF REVIEW
We review the findings of the Secretary to determine whether they are
supported by substantial evidence. 15 U.S.C. § 1825(b)(2). “Substantial evidence
is: ‘something less than the weight of the evidence, and the possibility of drawing
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two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’” Thornton v. U.S.
Dep’t of Agric., 715 F.2d 1508, 1510 (11th Cir. 1983) (quoting Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 620, 86 S. Ct. 1018, 1026 (1966)). To support the
findings of the Secretary, substantial evidence must be found on the record as a
whole. See Giles Lowery Stockyards, Inc. v. Dep’t of Agric., 565 F.2d 321, 326
(5th Cir. 1977).
III. DISCUSSION
To resolve this petition, we address two matters. First, we address the nature
of the alleged violation of the Horse Protection Act, 15 U.S.C. §§ 1821-1831, at
issue in this proceeding. Second, we address whether substantial evidence
supports the decision of the Judicial Officer that Zahnd did not rebut the statutory
presumption.
A. The Alleged Violation of the Horse Protection Act
The Horse Protection Act makes it illegal for any individual to enter “for the
purpose of showing or exhibiting in any horse show or horse exhibition, any horse
which is sore.” 15 U.S.C. § 1824(2)(B). As used by the statute, soring means the
application of devices or chemicals to the forelimbs of a horse to achieve the
distinctive high-stepping gait of the Tennessee Walking Horse. Soring causes
intense pain to the horse and gives the horse trainer an unfair advantage in
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competition by artificially inducing the distinctive gait.
Under the Act, a horse is sore only if the soreness is the result of one of
several artificial means.
(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, 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 of a
person licensed to practice veterinary medicine in the State in which
such treatment was given.
Id. § 1821(3). A horse is presumed to be sore “if it manifests abnormal sensitivity
or inflammation in both of its forelimbs or both of its hindlimbs.” Id. § 1825(d)(5).
With respect to Lady Ebony’s Ace, there is no dispute that the statutory
presumption of soreness was triggered. The Designated Qualified Person and two
veterinarians for the Department of Agriculture palpated Lady Ebony’s Ace and
observed abnormal sensitivity in both of her forelimbs. “Nevertheless, it is well
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settled that the presumption of soreness is rebuttable. While it imposes on the
party against whom it is directed the burden of producing evidence to me[e]t or
rebut the presumption, the burden of proof remains with the [Complainant] and
never shifts to the Respondent.” In re Martin, 53 Agric. Dec. 212, 223 (Mar. 16,
1994) (brackets in original).
B. The Decision of the Judicial Officer that Zahnd Did Not Rebut the Statutory
Presumption of Soreness Is Supported by Substantial Evidence.
Whether we can meaningfully review the decision of the Judicial Officer
that Zahnd failed to rebut the statutory presumption of soreness is a close question.
The Administrative Law Judge found that Zahnd rebutted the presumption, but the
Judicial Officer disagreed. Because the Judicial Officer is not bound by the
decision of the Administrative Law Judge and can draw independent inferences,
we review only the decision of the Judicial Officer for substantial evidence. See
Universal Camera, 340 U.S. at 496, 71 S. Ct. at 469. Our decision is made
difficult because, although the Judicial Officer expressed his disagreement with the
decision of the Administrative Law Judge, the Judicial Officer did not offer any
reasoning for his decision that Zahnd did not rebut the statutory presumption. The
Judicial Officer failed to address at least some of Zahnd’s evidence and explain
why that evidence did not rebut the presumption.
At the hearing, Zahnd presented a few explanations to rebut the presumption
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that Lady Ebony’s Ace was sore. Zahnd’s evidence was that Lady Ebony’s Ace
was an irritable horse: she had been subject to the irritation of a day in a horse
trailer; she had been subject to multiple palpations; the manner of palpation can
affect whether a horse moves; and an irritated horse could exhibit greater reactions
than a non-irritated horse. Zahnd also presented two other possible causes for
some of the movements of Lady Ebony’s Ace: first, Appleton testified that the
movement of another horse behind a horse being examined ordinarily will make
the latter horse move; and second, Zahnd observed that Lady Ebony’s Ace stood
resting a back foot during an examination, which was, in Zahnd’s lay experience, a
position a horse does not take when it is sore. Both Appleton and Zahnd
apparently were credible witnesses.
The only response of the Judicial Officer to this evidence was that the record
did not support the finding that Lady Ebony’s Ace was a “silly” horse. Although
the record supports that finding, the suggestion that Lady Ebony’s Ace was acting
“silly” was not the sole explanation for her behavior offered by Zahnd. The term
“silly” was used to refer to the horse’s irritability. In an affidavit procured by an
investigator for the Department of Agriculture, Zahnd stated that the horse “was
stirred up, because she acted silly during the whole time she was being checked.”
The Administrative Law Judge described Zahnd’s explanation for the horse’s
behavior as “due to the horse acting ‘silly’ as a result of spending most of the day
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in a horse trailer, and as a result of the extended examination process.” Although
both Appleton and Zahnd provided other testimony such that Lady Ebony’s Ace
moved when a horse walked behind her and that a horse will not rest a foot when it
is sore, the Judicial Officer did not explain his rejection of these explanations.
Nevertheless, under our highly deferential standard of review, we conclude
that the rejection by the Judicial Officer of the explanation that Lady Ebony’s Ace
was “silly” was intended to encompass Zahnd’s explanation that the mare was
aggravated or irritated, and substantial evidence supports that finding. As we have
noted in our review of agency decisions under the “arbitrary, capricious, . . . (or)
unsupported by substantial evidence” standard, “‘[t]he agency must articulate a
rational connection between the facts found and the choice made. . . . While we
may not supply a reasoned basis for the agency’s action that the agency itself has
not given, we will uphold a decision of less than ideal clarity if the agency’s path
may reasonably be discerned.’” Refrigerated Transp. Co., Inc. v. I.C.C., 663 F.2d
528, 531 (5th Cir. 1981) (quoting Bowman Transp., Inc. v. Arkansas-Best Freight
Sys., Inc., 419 U.S. 281, 285-86, 95 S. Ct. 438, 442 (1974)). Although Zahnd and
Appleton provided testimony that the reactions of Lady Ebony’s Ace could be
attributed to her irritable temper and multiple irritations, Dr. Dussault testified that
Lady Ebony’s Ace was not acting aggravated or irritated when she was palpated.
The Judicial Officer was entitled to rely on Dussault’s testimony and an
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independent review of the videotape of the examinations by Thomas, Dussault, and
Guedron to reject the explanation given by Zahnd.
The only remaining evidence offered by Zahnd to refute the presumption
was Appleton’s testimony that the movement of one horse behind another could
cause the latter horse to move, and Zahnd’s testimony that, in his experience, a
horse would not rest its foot when it is sore. Neither statement is sufficient for us
to conclude that the decision of the Judicial Officer is not supported by substantial
evidence. The Judicial Officer was entitled to rely on both his review of the
videotape of the examinations and the expert testimony of a veterinarian who
performed a reliable examination of the horse rather than the vague and speculative
testimony of two lay witnesses.
IV. CONCLUSION
The petition for review is DENIED.
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