                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 08a0289n.06
                                  Filed: May 22, 2008

                                           NO. 07-3961

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


PERRY LACY,

               Petitioner,                           PETITION FOR REVIEW OF
v.                                                   A DECISION OF THE UNITED
                                                     STATES DEPARTMENT OF
UNITED STATES DEPARTMENT,                            AGRICULTURE
OF AGRICULTURE,

            Respondent.
__________________________________/

BEFORE:        SUHRHEINRICH, CLAY, and COOK, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Perry Lacy (“Lacy”), owner of the horse “Mark of

Buck,” seeks review of the decision by the United State Department of Agriculture’s (“USDA”)

Judicial Officer (“JO”) that he violated the Horse Protection Act (“HPA”), 15 U.S.C. §§ 1821-1831,

by attempting to show Mark of Buck when the horse was “sore.” Because substantial evidence

supports the JO’s decision, we DENY Lacy’s petition for review, and AFFIRM the decision of the

JO.

                                                I.

       On the evening of August 25, 2002, Lacy entered Mark of Buck in the 64th Annual

Tennessee Walking Horse National Celebration (“Celebration”), in Shelbyville, Tennessee. Lacy

employed Donald Campbell (“Campbell”) as Mark of Buck’s trainer, and Campbell presented the

horse for inspection at the Celebration.
       Several Designated Qualified Persons (“DQP”)1 were working that evening at the Celebration

to check for soreness.2 DQPs Henry Chaffin and Ira Gladney examined Mark of Buck. Both found

that the horse “led slow” and reacted strongly to palpation of the front feet, and agreed that the horse

was sore. The DQPs documented their findings in affidavits, issued Lacy a DQP ticket stating that

Mark of Buck was sore in violation of the HPA, and disqualified the horse from showing.

       The USDA’s Animal and Plant Health Inspection Service (“APHIS”) assigned two

Veterinary Medical Officers (“VMO”), Drs. Michael Guedron and Lynn Bourgeois, to monitor the

DQPs and inspect horses at the Celebration that evening. After observing the DQPs’ examinations

of Mark of Buck, Dr. Guedron inspected Mark of Buck and elicited “strong, repeatable, reproducible

pain responses” on the horse’s front feet. VMO Dr. Bourgeois inspected the horse, and noted that

it displayed “strong, repeatable, reproducible pain responses” upon palpation of its front pasterns,

including severe clenching of its abdominal muscles and attempts to withdraw its limb and

redistribute its weight to the hind legs. Dr. Bourgeois concluded that Mark of Buck “was sored with

caustic chemicals and/or overwork in chains.” Drs. Guedron and Bourgeois conferred and agreed

that Mark of Buck was sore.

       Eleven days later, on September 5, 2002, Campbell, Mark of Buck’s trainer, reported to Lacy


       1
        DQPs are employed by horse industry organizations and are delegated authority to
determine if horses are sore. 15 U.S.C. § 1823; 9 C.F.R. § 11.7. DQPs need not be
veterinarians, but must attend USDA-certified horse industry organization DQP training
programs. DQPs examine every horse before it is permitted to show at a horse show, and they
examine post-show all horses finishing first in Tennessee Walking horse events. 9 C.F.R. §
11.20.
       2
        Soring occurs when an injury to or sensitization of a horse’s legs, rather than training and
breeding, is used to induce the high stepping gait for which Tennessee Walkers are known.
Rowland v. United States Dep’t of Agric., 43 F.3d 1112, 1113 (6th Cir. 1995) (citing Thornton v.
United States Dep’t of Agric., 715 F.2d 1508, 1510 (11th Cir. 1983)).

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that the horse appeared “tired” and “lifeless,” and that the horse needed to be seen by a veterinarian.

Campbell transported the horse to Dr. John O’Brien, a private veterinarian in Bowling Green,

Kentucky, who examined the horse. Dr. O’Brien inspected the horse, and observed that Mark of

Buck had a scared and anxious look, was hypersensitive to touch, and had a “somewhat ataxic” gait.

Dr. O’Brien described the horse’s symptoms as “mild at the time we saw it.” Dr. O’Brien took a

blood sample from the horse, which tested positive for West Nile Virus.

       On January 18, 2006, the Acting Administrator of the APHIS instituted a disciplinary

administrative proceeding under the HPA by filing a complaint against Lacy. The complaint alleged

that Lacy violated the HPA by: (1) entering Mark of Buck in the Celebration for the purpose of

showing or exhibiting the horse while the horse was sore, in violation of 15 U.S.C. § 1824(2)(B);

and (2) allowing such showing or exhibiting, in violation of 15 U.S.C. § 1824(2)(D). In his answer,

Lacy admitted that he owned Mark of Buck and that he entered the horse in the Celebration, but

denied he entered, or allowed to be entered, the horse in the Celebration while it was sore.

       On August 22, 2006, an Administrative Law Judge (“ALJ”) conducted a hearing. The

Agency presented the testimony of an APHIS investigator and VMO Dr. Bourgeois, introduced nine

exhibits, and offered a copy of a videotape taken of the pre-show inspections of Mark of Buck on

the evening of August 25, 2002. Lacy presented the testimony of Dr. O’Brien, introduced two

exhibits, and testified on his own behalf. The ALJ refused to enter into the record the copy of the

videotape, concluding that APHIS had not provided a copy of the videotape to Lacy in a timely

manner.

       On October 23, 2006, the ALJ issued a Decision and Order dismissing the complaint after

finding that: (1) Mark of Buck was not sore within the meaning of the HPA on August 25, 2002; and


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(2) although the Agency presented sufficient evidence to satisfy the HPA’s presumption that a horse

is sore when it exhibits sensitivity to palpation in both of its front feet, Lacy adequately rebutted the

presumption because: (i) Lacy presented evidence that Mark of Buck had contracted West Nile

Virus; and (ii) the presence of West Nile Virus explained the horse’s bilateral sensitivity at the pre-

show inspection.

        The Agency appealed the ALJ’s decision to the JO,3 and on June 29, 2007, the JO reversed.

The JO concluded that Lacy violated the HPA by entering Mark of Buck in the Celebration while

the horse was sore, because Lacy’s evidence that the horse tested positive for West Nile Virus eleven

days later did not rebut the HPA’s presumption of soreness. The JO also found that the ALJ erred

in excluding the videotape, but the exclusion was not “unduly prejudicial.” The JO imposed a civil

penalty of $2,200 on Lacy and disqualified him from showing, exhibiting, or entering any horse, and

from managing, judging, or otherwise participating in any horse show, horse exhibition, horse sale,

or horse auction for a period of one year.

                                                   II.

                                                   A.

        In his petition for review, Lacy contends that the JO’s finding that he failed to rebut the

statutory presumption of soreness was not supported by substantial evidence. Lacy also argues that

we should affirm the JO’s determination that the ALJ’s exclusion of the videotape in the August 22,

2006 hearing was not unduly prejudicial.

        This Court reviews an administrative decision of the Secretary of Agriculture under the HPA


        3
         The Secretary of Agriculture has delegated authority to the JO to act as final deciding
officer in the USDA’s adjudicatory proceedings subject to 5 U.S.C. §§ 556 & 557. 7 C.F.R. §
2.35.

                                                  -4-
to determine whether the proper legal standards were employed and substantial evidence supports

the decision. Bobo v. USDA, 52 F.3d 1406, 1410 (6th Cir. 1995). “Substantial evidence means

‘more than a scintilla but less than a preponderance’ of the evidence,” and “‘must be based upon the

record taken as a whole.’” Bobo, 52 F.3d at 1410 (quoting Elliott v. Administrator, Animal & Plant

Health Inspection Serv., 990 F.2d 140, 144 (4th Cir. 1993); Gray v. United States Dep’t. of Agric.,

39 F.3d 670, 675 (6th Cir. 1994)).

       Unlike a federal court, a JO “sitting in review of an ALJ’s initial decision, is authorized by

statute to substitute [his] judgment for that of the ALJ.” Parchman v. USDA, 852 F.2d 858, 860 n.1

(6th Cir. 1988) (quoting Farrow v. USDA, 760 F.2d 211, 213 (8th Cir. 1985)) (internal quotations

omitted). However, where findings of fact are based on determinations of witness credibility, the

ALJ’s findings are given greater weight. Rowland v. USDA, 43 F.3d 1112, 1114 (6th Cir. 1995).

                                                 B.

       Section 1824(2) prohibits showing a sore horse. A horse is sore if chemicals or other

implements have been used on its front feet to make them highly sensitive to pain. 15 U.S.C. §

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).

       The JO concluded that the horse met the statutory definition for being sore, relying on the

statutory presumption of soreness. See id. We find no error in the JO’s conclusion that the horse

met the statutory presumption of soreness because substantial evidence supports this finding.

       Seven documents in the record constitute substantial evidence that Mark of Buck was

“abnormally sensitive”:

       First: the APHIS Form 7077, entitled “Summary of Alleged Violations.” The form was


                                                -5-
completed and signed by VMO Dr. Guedron, and later signed by VMO Dr. Bourgeois. The form

contains a checkbox indicating that the horse was “sore” as defined under the HPA, and also a chart

noting the locations on the horse where Drs. Guedron and Bourgeois found “[a]reas of consistent,

repeatable pain responses.”

        Second: the “DQP Ticket” form, number 23383. The form was completed by DQPs Chaffin

and Gladney after their inspection of Mark of Buck, and states that Mark of Buck was “bilateral

sore” in violation of the HPA, and a checkbox notes that the DQPs “notified Show Management that

[Mark of Buck] was excused or disqualified.”

        Third: the DQP Examination Form. The form was completed by DQP Chaffin, and notes

that the horse “led slow,” and exhibited “strong takeaway motion” upon palpation of the medial and

anterior surfaces of both limbs.

        Fourth: the affidavit of DQP Chaffin. The affidavit, sworn to on the date of inspection,

states that Campbell, Mark of Buck’s trainer, presented the horse for inspection, and that “the horse

was bilateral sore in both front feet,” “led slowly,” “turned . . . slowly,” and had “strong takeaway

motion” on the front limbs upon palpation.

        Fifth: the DQP Examination Form. The form was completed by DQP Gladney, and notes

that the horse “led slowly,” “turned slow[ly],”“reacted to palpation” on the front of the left foot’s

coronary band, and “reacted strongly” to palpation on the front of the right foot’s coronary band.

        Sixth: the affidavit of DQP Gladney. The affidavit, sworn to on the date of inspection, states

that Campbell presented the horse for inspection, and that “the horse was bilateral sore in both front

feet,” “led slowly,” “turned . . . slowly,” and upon palpation the horse “reacted on [the] left front foot

coronary band and [the] right front foot . . . coronary [band] and outside.”


                                                   -6-
       Seventh: the affidavit of VMO Dr. Bourgeois. The affidavit, sworn to on September 5, 2002,

states that: Dr. Bourgeois observed DQP Gladney’s inspection of the horse, in which the horse

“lead[] slowly,” and “digital palpation of anterior aspects of both fore pasterns elicited repeatable

pain responses characterized by withdrawal, abdominal tucking and tucking back on hind limbs”;

DQPs Chaffin and Gladney then diagnosed the horse as “bilateral sore”; Dr. Bourgeois observed

VMO Dr. Guedron’s examination, in which the horse “led slowly and reluctantly,” and Dr. Guedron

“elicit[ed] strong, repeatable, reproducible pain responses characterized by strong withdrawal,

rocking back on hind limbs to redistribute weight[,] and marked tucking of abdominal muscles”; and

Dr. Bourgeois conducted her own inspection of the horse, in which “visual observation and digital

palpation” of the posterior pasterns was normal, but palpation of each “entire anterior pastern elicited

strong, repeatable, reproducible pain responses characterized by attempts [by the horse] to withdraw

[the] limb from [her] grasp, rocking back onto [its] hind limbs to redistribute [its] weight[,] and

severe clenching of [its] abdominal muscles.”

       Lacy challenges the documentary evidence relating to VMO Dr. Guedron and DQPs Chaffin

and Gladney for the reason that they did not testify. This argument lacks merit. First, “the

Administrative Procedure Act (APA) provides that an agency conducting a hearing may receive

‘[a]ny oral or documentary evidence.”’ Gray, 39 F.3d at 676 (quoting 5 U.S.C. § 556(d)). Second,

although our “missing witness rule” provides for an adverse inference to arise in some instances

from a party’s failure to present live testimony, Lacy never raised the issue below. According to the

“missing witness rule,” an adverse inference arises “when a party fails to call a witness peculiarly

within his power to produce and whose testimony would elucidate the transaction.” Bennett v.

United States Dep’t of Agric., 219 Fed. App’x 441, 447 (6th Cir. 2007) (quoting United States v.


                                                  -7-
Blakemore, 489 F.2d 193, 195 (6th Cir. 1973) (quotation marks and alterations omitted). The

Secretary of Agriculture also applies this adverse inference in proceedings under the HPA. See

Bennett, 219 Fed. App’x at 447 n.4 (citing In re David Tracy Bradshaw, 59 Agric. Dec. 228, 2000

WL 799108, at *16 (June 14, 2000)). Although we need not determine whether or how the “missing

witness rule” applies–because Lacy never raised the issue below–we note that the rule would not

apply, in any event, to the affidavit of VMO Dr. Bourgeois, who did testify. In the proceedings

below, Dr. Bourgeois testified consistently with her affidavit that the horse “present[ed] pain

responses upon palpation of the anterior pasterns.” She also testified that she observed the

inspections conducted by VMO Dr. Guedron and DQP Gladney, which were, in turn, consistent with

the forms and affidavits that they submitted.

       Lacy argues that JO erred in crediting the affidavit of Dr. Bourgeois because her testimony

at the August 22, 2006 hearing was not based on a present recollection of her examination of Mark

of Buck. Dr. Bourgeois’s testimony was instead based on past recollections recorded in her affidavit

and on the Summary of Alleged Violation Form. Lacy’s argument lacks merit, however, because

“this Court has previously held that the affidavits of VMOs and Summary of Alleged Violations

Forms are reliable and probative.” Turner v. USDA, 217 F. App’x 462, 467 (6th Cir. 2007) (citing

Gray, 39 F.3d at 676). In Gray we held that the affidavits of the VMOs and a Summary of Alleged

Violations Form satisfied the admissibility criteria where the VMOs in that case had no independent

recollection because “[t]hey were signed and/or prepared by individuals who were experienced in

their tasks and who had no reason to record their findings in other than an impartial fashion.

Moreover, the documents were created almost contemporaneously with the observations they relay.”

Gray, 39 F.3d at 676. The affidavit and Summary of Alleged Violations Form of VMO Dr.


                                                -8-
Bourgeois satisfify this criteria: Dr. Bourgeois is an experienced veterinarian; there is no evidence

that she did not conduct her inspection of Mark of Buck in an impartial fashion; and she prepared

her statement for her affidavit on August 30, 2002,4 only five days after inspecting of the horse.

Thus, the JO did not err in crediting VMO Dr. Bourgeois’s affidavit.

       Accordingly, we find that the USDA produced substantial evidence that the horse was

“abnormally sensitive” sufficient to trigger the § 1825(d)(5) statutory presumption of soreness.

                                                 C.

       Although a horse is presumed sore “if it manifests abnormal sensitivity or inflammation in

both of its forelimbs or both of its hindlimbs,” 15 U.S.C. § 1825(d)(5), “it is well settled that the

presumption of soreness is rebuttable.” Zahnd v. Sec’y of Dep’t of Agric., 479 F.3d 767, 772 (11th

Cir. 2007) (quoting In re Martin, 53 Agric. Dec. 212, 223 (Mar. 16, 1994)). Lacy contends that the

JO’s conclusion that Lacy failed to rebut the statutory presumption that Mark of Buck was sore was

not supported by substantial evidence.

       The ALJ found that Lacy rebutted the statutory presumption of soreness by presenting the

testimony of Dr. O’Brien. Dr. O’Brien testified that Mark of Buck had contracted West Nile Virus,

a condition that explained the horse’s bilateral sensitivity on the date of the inspection. He further

testified that Mark of Buck reacted with hypersensitivity associated with encephalitis resulting from

West Nile Virus rather than soring during its inspection at the Celebration.

       The JO disagreed with the ALJ’s conclusion that Lacy rebutted the statutory presumption of

soreness. The JO found that Dr. O’Brien did “not identify a clear connection between his diagnosis



       4
           The affidavit was sworn on September 5, 2002.


                                                 -9-
on September 5, 2002, that Mark of Buck contracted West Nile Virus[,] and the observation of

USDA veterinarians and the DQPs 11 days earlier.” The JO first noted Dr. O’Brien’s testimony that

he had little knowledge of the examinations done on the horse on August 25, 2002. Next, the JO

noted that Dr. O’Brien did “not explain how the encephalitis caused hypersensitivity in Mark of

Buck that was limited to pinpoint spots on the front of the horse’s feet.” The JO then noted that Dr.

O’Brien’s observation of Mark of Buck’s presentation on September 5, 2002, was markedly different

from the observations of the DQPs and VMOs on August 25, 2002; while Dr. O’Brien found the

horse exhibiting ataxia, hypersensitivity, and anxiousness, VMO Dr. Bourgeois found none of these

symptoms.

       We find that the substantial evidence supports the JO’s conclusion that Lacy failed to rebut

the statutory presumption of soreness. The JO was reasonable in discounting Dr. O’Brien’s

testimony that West Nile Virus was responsible for Mark of Buck’s bilateral sensitivity during the

horse’s inspections at the Celebration. First, the presentation of Mark of Buck during its inspection

at the Celebration was consistent with soring, not West Nile Virus as described by Dr. O’Brien. See

In re Billy Gray, 52 Agric. Dec. 1044, 1993 WL 308542, at *21 (July 23, 1993) (noting that USDA

VMOs “follow a simple procedure to distinguish [high-strung, or nervous, or silly] horses from those

that are experiencing pain. . . . “[T]hey look for . . . specific spots which were painful when

palpated.”), aff’d sub nom. Gray v. USDA, 39 F.3d 670 (6th Cir. 1994). The horse exhibited pin-

point pain responses solely in the front surfaces of the pasterns at the Celebration. VMO Dr.

Bourgeois testified that West Nile Virus, conversely, would not cause pin-point pain responses solely

in the front surfaces of the pasterns. Second, although Dr. O’Brien did not observe pin-point pain

responses on the horse’s front pasterns during his exam, finding no response to digital palpation of


                                                -10-
the coronary band through the pastern area, he acknowledged that the temporal proximity from the

inspections on August 25, 2002, to his inspection on September 5, 2002, may have explained the

horse’s responses on the latter date.

       Lacy also argues that the JO erred in crediting VMO Dr. Bourgeois’s testimony, because Dr.

Bourgeois had no training or experience with West Nile Virus. We disagree, because Dr. Bourgeois

testified that she had studied and was familiar with encephalitis, a symptom of West Nile Virus.

                                                D.

       The JO found that the ALJ’s exclusion of the videotape of Mark of Buck’s examination was

erroneous but not unduly prejudicial to the Agency, and that substantial evidence, exclusive of the

videotape, supported its finding that the horse was sore when it was entered in the Celebration.

Because we find that substantial evidence supports the JO’s decision that Mark of Buck was sore,

we need not reach the issue of the videotape’s admissibility.

                                               III.

       For the foregoing reasons, we DENY Lacy’s petition for review, and AFFIRM the decision

of the Judicial Officer.




                                               -11-
