                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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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Back v. United States Department of Agriculture

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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Back v. United States Department of Agriculture

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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Back v. United States Department of Agriculture

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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Back v. United States Department of Agriculture

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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Back v. United States Department of Agriculture

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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Back v. United States Department of Agriculture

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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