Historically, during the pre-show inspection required, if the USDA veterinarian felt a horse was in violation of the Horse Protection Act and/or federal regulations, the USDA would have a second veterinarian on hand examine the horse. (This practice was discarded by the USDA for a number of years – approximately 2013 through and including 2017, without explanation.) The two USDA veterinarians would then consult and determine whether or not the horse should be disqualified. *During the period of approximately 2013 through and including 2017, a second opinion was not required and was not performed regardless of whether several USDA veterinarians were on hand or whether it was requested that a horse by reinspected by its handler. Currently, a handler can request a re-inspection.
For many years, once a horse was disqualified for the presumption of being sore, a USDA veterinarian would immediately fill out APHIS Form 7077 while the events were fresh in their mind. That practice also disappeared as early as 2013, allowing the USDA veterinarian several days to complete the form and time to watch and re-watch the video of the inspection. This basically allows the USDA to rely on watching video footage to build their case rather than first hand observations.
At some point, the form completed and other documents gathered were to be turned over to the USDA IES (Investigative Enforcement Services) division. The USDA investigators were charged with ensuring all of the USDA’s evidence was complete, as well as interviewing, either in person or on the telephone, the owner, rider, trainer and anyone else who was listed as being connected with the horse who had been disqualified. Again, as early as 2013 and continuing to date, IES stopped contacting owners, riders, and trainers to get their statements and focused only on building the USDA’s case rather than performing an independent investigation and presenting facts.
It is unclear, and has always been unclear/unknown, who within the Department of Agriculture ultimately decides what disqualifications to prosecute and what disqualifications to ignore. The USDA has the authority to proceed both civilly and criminally.
As there have only been two criminal cases prosecuted in the recent past (2012 and 2013), with one pleading guilty to conspiring to violate (but not actually violating) and the other pleading guilty to having violated the Horse Protection Act, we are focusing on the civil prosecution.
Once a civil Complaint is filed by the USDA, it is mailed it to the person(s) being sued for allegedly violating the Horse Protection Act and/or federal regulations by certified mail, return receipt requested. If someone other than the named accused signs for the certified letter, it is considered served – even if that person throws it in the trash and never tells the accused. From the date of receipt, the accused has 20 calendar days (including weekends) to respond by filing an Answer to the Complaint. (It is recommended Answers be emailed and sent by Federal Express. Regular US Postal Mail, and certified mail, is delayed due to security checks and scanning. Even if you mail your Answer the day it is received, if it does not reach the Hearing Clerk within 20 days, you are in default – the same as if you had not bothered to respond at all.)
In years past, the overwhelming majority of Complaints went unanswered. By failing to respond, the USDA was permitted to take a Default Decision, or automatic win against the accused and hand down a suspension and fine. The Default Decision was then mailed with a Motion to Show Cause to the accused, advising them they had 20 days to respond and show cause why they failed to timely answer the Complaint. Throughout the last 35 years, only a handful have attempted to show cause. All who have, no reason for the failure to respond was sufficient to overturn the Default Decision. Once the Administrative Law Judge rules that you do not have justification for failing to Answer, the accused goes on suspension and is fined unless they appeal to the Judicial Officer for review. In cases appeals to the Judicial Officer, the Judicial Officer has always affirmed the initial ruling and the suspension and fine are upheld. Keep in mind that because the overwhelming majority of the Complaints throughout history went unanswered, the accused were automatically found guilty and ordered to serve a suspension and pay a fine. No evidence whatsoever was ever presented in those cases. They were automatic wins for the USDA.
For those who did file an Answer, both parties (USDA and the accused) are ordered to file proposed exhibits and proposed witness that they intend to rely upon at a hearing. The USDA’s exhibits or evidence typically includes the entry form, APHIS Form 7077, video of the inspection, photographs, and written statements of the USDA veterinarian(s). On a very rare occasion, thermography scans have been included. From 1981 to date, no foreign substance swab, swab results or x-ray has ever been produced by the USDA in a case that proceeded to a hearing despite thousands being performed.
The civil cases involving alleged violations of the Horse Protection Act and/or federal regulations are handled through the Administrative Procedures Act and Administrative Law. Even though the USDA is a federal entity, civil cases are not handled in Federal Court. Under the Administrative Procedures Act, each Department is to promulgate Administrative Rules that apply to both sides. The EPA and SEC has volumes of rules that both sides must abide by. The USDA has generalized rules such as the time to respond to a Complaint (20 days) and that personal service is not required. They also have many rules that are specific to particular matters like Grain Standards Act, Packers and Stockyards Act, and Food Safety and Inspection Service Regulations. For Horse Protection Act cases, there is only one specific rule – it allows the USDA to give notice prior to the filing of a Complaint and the parties to reach an agreement without the necessity of the Complaint, and provides that if a penalty is not paid within the time prescribed – the penalty shall not be relevant in the assessment after a Complaint is filed.
Without a clear set of rules that are specific to Horse Protection Act cases, the Administrative Law Judge typically allows more lenience toward the procedures followed, it seems more so to the benefit of the USDA than the accused. Whatever you have learned from watching Law and Order or have heard from your neighbor, it doesn’t apply under Administrative Law. There is no standard of evidence or proof. There are no rules of civil procedure.
Case law is well established that once the USDA has made the allegation that a horse is sore by the filing of the Complaint and has established a statutory presumption that the horse is sore by producing the opinion by at least one USDA veterinarian that the horse was sore, the burden of proof shifts to the accused to prove that that horse was not sore or that the soreness was due to natural causes. This simply means that one USDA veterinarian can testify that any horse is sore and it is up to the accused to prove it was not sore. The testimony of the USDA veterinarian, regardless of their equine qualifications or lack thereof, is always given more weight than any other testimony.
The USDA does not have to submit one shred of scientific evidence that the horse was in fact sore or evidence of what was used to sore the horse. All they merely have to do is have one USDA veterinarian, their paid employee, testify that is their professional opinion the horse was sore. That professional opinion of their veterinarian may be based 100% on palpation alone and may exclude and/or disregard any and all x-rays, thermographic scans, and/or gas chromatography testing (foreign substance swab testing) – all of which the USDA is not required to produce unless they intend to rely upon them at the Hearing. It is rare that a thermographic scan is entered into evidence. As previously mentioned, no x-ray or gas chromatography testing has been entered into evidence on any case that has proceeded to a hearing.
The USDA makes the allegation that the horse is sore by filing the Complaint. The statutory presumption that the horse is sore is established by one USDA veterinarian who relies solely on digital palpation, and then it is up to the accused to prove the horse was not sore. So, how does the accused prove the horse was not sore? It is essentially impossible. If a horse leaves the inspection area after disqualification and is then later examined by a private equine veterinarian, even five minutes later, the testimony of the USDA veterinarian is given more credibility than the private equine veterinarian.
A review of Horse Protection Act cases, including hearing testimony, as well as a review of Judicial Summaries from June 1981 through December 2016, reveal there are three cases where the accused prevailed. Three cases in thirty-five years where the accused won. Let that sink in. One of three proved the horse had a fungus on its feet which was established by the horse’s treating veterinarian. The other two were in the 5th Circuit jurisdiction where the federal appeal Courts take issue with the USDA relying solely on digital palpation alone and demand scientific proof when it comes to penalizing and jeopardizing a person’s livelihood.
In the thirty-five years between 1981 and 2016, there are approximately 50 cases that made it to the Hearing stage, where testimony under oath was given. 50 cases in 35 years is 0.7% cases per year. A handful of cases were won by the accused at the Hearing level, only to be overturned by the Judicial Officer. (The USDA prosecutor, Administrative Law Judge and Judicial Officer are all federal employees after all.) Some were settled prior to hearing or post hearing while on appeal. At any time while the case is pending and not considered final, the parties can reach an agreement or settlement. That agreement is called a Consent Agreement or Consent Decision. Both sides are encourage to try to reach an agreement without the necessity of a hearing or during the appeals process in order to conserve judicial resources.
Prior to January 2017, the average number of disqualifications for the presumption of soring that were prosecuted would be 4 annually. In December 2016 and January 2017, the USDA filed an astounding and unprecedented 150 Complaints, more than all of the 35 years prior combined.
While the USDA has never gone on record as to why so many Complaints were filed over a 60 day period, President Trump taking office on January 20, 2017 is presumed to have been the reason. Those 150 Complaints were the most convoluted nonsensical Complaints filed in USDA history. Those are not Trump Complaints. Those are not Secretary Purdue Complaints.
In 2017, after the filing of those 150 Complaints, the USDA entered Default Decisions on 17 of those cases for those who failed to file an Answer within the 20 days prescribed. 17 is roughly 11.34% and an amazingly low number considering the default rate is typically 75% and the 20 day time limit to respond. By the end of 2017, 81 had been settled by Consent Decisions and another 28 were settled by Consent Decisions during 2018. In reviewing numerous of those Consent Decisions, many specifically state that the accused “neither admits nor denies” the allegations against them while others “specifically deny the allegations against them”. None of the 109 Consent Decisions can legally be considered to have violated the Horse Protection Act and/or federal regulations because there has been no finding of guilt. Therefore, 72.66% have NOT been found guilty. 16 cases were still pending as of mid August, 2019.
In speaking with numerous people over the years, both previously accused and attorneys, the cost of hiring counsel to defend these actions range from $10,000.00 to $25,000.00 and do not include any appeal work. One quote to file an appeal at the U.S. Supreme Court level was quoted at $75,000.00, with no guarantee that the Supreme Court would even agree to hear the case.
Knowing that the burden of the USDA to prove its case is to merely file the Complaint and have one USDA veterinarian testify that it is their opinion the horse is sore, absent any scientific evidence or proof whatsoever, and the burdens shift to the accused to prove that the horse was not sore, as well as the fact that only 3 cases in the last 35 years have been favorable to the accused, coupled with the cost of defense, what would you do if you had a civil Complaint filed against you?
The fact that prior trainers, this year’s top three trainers or even the trainer of the year, consented to serve a suspension and pay fine serves as proof of only one thing – the manner in which these cases are handled are biased in favor of the USDA. They are NOT proof of guilt. They are NOT proof of abuse.
HSUS, Marty Irby, and Clant Seay and anyone else talking nonsense about known violators, serial violators, and soring violations regarding top trainers that stem from the 150 Complaints filed on the eve of President Trump taking office are doing so for donations and to garner support for the Past Act, even though they know such a law is arbitrary and capricious – an abuse of power. Everyone knows that cannot even ban girls from the Boy Scouts. Common principals of law dictate that it is inapposite to pass a law that bans any equipment from one group, while allowing all other groups to utilize the same or similar equipment. It doesn’t matter if you’re making laws about horse shoes or football helmets. You cannot ban the wearing of football helmets by the Titans, Cowboys and Bears, while all other NFL teams are permitted to wear helmets. All the Past Act does is ban certain shoes (equipment) on Tennessee Walking Horses, Racking Horses and Spotted Saddle Horses and opens the door to banning them on other breeds next. Congress is not going to recall a law they passed. They will apply it to all breeds before they do that. These animal rights groups know that. You should too!!
It’s time to support the Horse Protection Amendments Act of 2019, S 1455, that calls for science based inspections. The USDA has had the science for over twenty five years. Some times they use it during inspections. Some times they do not. But, they do NOT rely on it in the prosecution of cases on a regular basis. Supporting S 1455 would change that, not only for the Tennessee Walking Horse, Racking Horse or Spotted Saddle Horse but other breeds as well. Supporting S 1455 would ensure that other breeds of horses, as well as the Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse does not lose their shoes. Supporting S 1455 would spare other breeds from having to endure what the walking horse industry has for decades.