                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-1-1994

Wagner v. Dept. of Agriculture
Precedential or Non-Precedential:

Docket 93-3318




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"Wagner v. Dept. of Agriculture" (1994). 1994 Decisions. Paper 68.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/68


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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                         _______________

                           NO. 93-3318
                         _______________

               ROY E. WAGNER and JUDITH E. RIZIO,

                                           Petitioners

                               v.

                   DEPARTMENT OF AGRICULTURE,

                                           Respondent
                         _______________

               On Petition for Review of an Order
         of the United States Department of Agriculture
                     (HPA Docket No. 91-58)
                         _______________

           Submitted Under Third Circuit LAR 34.1(a)
                         March 3, 1994

     Before:   SLOVITER, Chief Judge, ALITO, Circuit Judge,
                   and PARELL, District Judge1

                 (Opinion filed March 15, 1994)
                         _______________

Michael L. Rozman
Nicholas & Foreman
Harrisburg, PA 17110

          Counsel for Petitioners

Jeffrey A. Knishkowy
Office of General Counsel
United States Department of Agriculture
Washington, DC 20250

          Counsel for Respondent




 1
  Hon. Mary Little Parell, United States District Court for the
         District of New Jersey, sitting by designation.
                         OPINION OF THE COURT

SLOVITER, Chief Judge.


                                  I.

             Judith E. Rizio, the owner of the horse known as Sir

Shaker, and Roy E. Wagner, the horse's trainer, have filed this

petition for review from the administrative determination that

they violated the Horse Protection Act, 15 U.S.C. § 1821 et seq.

(1988) (the Act) by exhibiting a "sore horse."

             The sole issue before us is whether the United States

Department of Agriculture (USDA) met its burden of proof.

             Because the Secretary's determination that Sir Shaker

was sore within the meaning of the Act is supported by

substantial evidence, we affirm.

             When Sir Shaker was entered at the Eastern Classic

Horse Show in Quentin, Pennsylvania, he underwent routine

examination by two USDA veterinarians, Dr. Frances Miava Binkley

and Dr. Hugh V. Hendricks.     These veterinarians who, prior to the

Eastern Classic, had examined 400 to 500 horses and over 2,500

horses, respectively, were charged with the duties of enforcing

the Act and of monitoring the Designated Qualified Person (DQP)

Thomason.2    Dr. Binkley observed Sir Shaker respond with pain by


2
 "A DQP is employed by show management to inspect horses and
determine if they are 'sore.' Management employs these
individuals because it may be held liable under the Act if a
'sore' horse is shown and a DQP was not utilized." Elliott v.
Administrator, Animal & Plant Health Inspection Serv., 990 F.2d
140, 142 n.4 (4th Cir. 1993).
pulling its foot away and tensing its abdomen when DQP Thomason

palpated Sir Shaker's pasterns.3

          One day after the Eastern Classic, Dr. Binkley signed

an affidavit recounting her own examination of Sir Shaker:
          The DQP excused the horse and issued a DQP
          ticket for two foot sensitivity.

          I then palpated the horse. Each time I palpated the
          area on the front on the pasterns, 1"-2" above the
          coronary band, the horse pulled its foot away. The
          reaction was the same on both front feet. The horse
          also tensed his abdomen and shoulder during palpation.

            . . .

          In my professional opinion, the horse was
          sore and this condition was caused by a
          caustic chemical or a mechanical device or a
          combination of both.


          Dr. Hendricks summarized his independent examination of

Sir Shaker as follows in an affidavit, also signed one day after

the Eastern Classic:
          [Sir Shaker] exhibited definite pain
          responses when examined by the DQP and was
          turned down because of sensitivity in both
          front feet . . . .

               When [I applied] light to moderate
          digital pressure . . . to the anterior
          surface of both pasterns the horse would
          exhibit strong and definite pain responses.
          The horse would try and remove his foot from
          my grip and would jerk his head upward, there
          was a tightening of the abdominal muscles and
          a shifting of his weight back over the hind
          quarters when the sensitive areas were
          palpated.



3
 In layperson terminology, this means that DQP Thomason examined
by touch the front of each foot directly above the hoof. See
Webster's Third New International Dictionary 525, 1627 (1964).
                     Dr. Binkley and I conferred and
           were in complete agreement that this horse
           met the criteria to be classified as a "sore
           horse" a[s] defined by the Horse Protection
           Act.


           The Administrator of the Animal and Plant Health

Inspection Service (APHIS) instituted disciplinary action against

Wagner and Rizio pursuant to the Horse Protection Act, alleging

that they violated the Act by exhibiting Sir Shaker while the

horse was sore.   The Administrative Law Judge held that Sir

Shaker was sore at the time of exhibition in violation of the

Act, found a violation as to Rizio, and assessed a $2,000 civil

penalty and a one-year disqualification, but dismissed the

complaint as to Wagner on the ground that Wagner had not

"entered" the horse for purposes of the Act.   Though Wagner and

Rizio testified that Sir Shaker's conduct was caused by

nervousness, the ALJ credited testimony of Drs. Binkley and

Hendricks indicating that they could distinguish between pre-

exhibition nervousness and pain responses.   APHIS and Rizio both

filed administrative appeals, and the USDA's Judicial Officer

affirmed the judgment as to Rizio and modified the judgment so to

assess Wagner a $2,000.00 civil penalty and one-year

disqualification as well.   The decision of the Judicial Officer

is the final decision of the Secretary.   See 7 C.F.R. § 2.35

(1993).   This petition for review pursuant to 15 U.S.C.

§1825(b)(2) followed.

                               II.
          We must affirm the findings of the Secretary of

Agriculture if they are supported by substantial evidence.      See

15 U.S.C. § 1825(b)(2); Thornton v. United States Dep't of

Agriculture, 715 F.2d 1508, 1510 (11th Cir. 1983).   Substantial

evidence is "such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion."   Passaic Valley

Sewage Comm'rs v. United States Dep't of Labor, 992 F.2d 474, 480

(3d Cir. 1993) (quotation omitted).

          The Horse Protection Act prohibits the "entering 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).

A horse is sore if:
          (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 . . . .


Id. § 1821(3).   "[A] horse shall be presumed to be a horse which

is sore if it manifests abnormal sensitivity or inflammation in
both of its forelimbs or both of its hindlimbs."   Id.

§1825(d)(5).

           The testimony and affidavits of Drs. Hendricks and

Binkley are substantial evidence that Sir Shaker was

presumptively sore and in fact sore at the time of the Eastern

Classic.   Upon independent examination of Sir Shaker, both Dr.

Hendricks and Dr. Binkley filed affidavits which support the

finding that the horse was "sore" within the meaning of the Act.

Significantly, the veterinarians' respective affidavits, reveal

that:
           [t]he examining veterinarians did not simply
           conclude that the horses were abnormally
           sensitive in two limbs and, therefore, were
           "sore." Each veterinarian testified to the
           effect that the [horse] plainly experienced a
           high degree of pain upon palpation of [his]
           forelimbs, demonstrated by the horse['s]
           immediate and reflexive pulling away from the
           palpation, rearing up and sagging down on the
           hindquarters, and instinctively cinching up
           the abdominal muscles. The diagnosis was not
           based upon the [presumption attached to] mere
           abnormal sensitivity. . . . In other words,
           the horse[ was] "sore" within the meaning of
           the Act.


Elliott, 990 F.2d at 146.

           We therefore reject petitioners' argument that the

veterinarians' affidavits were not sufficiently detailed to

support the finding of soreness.

           Furthermore, we reject their contention that the ALJ

improperly attached "controlling" weight to the doctors' opinions
as to Sir Shaker's sore condition.   Brief for Petitioner at 11.4

The only evidence offered to discredit the doctors' findings

consisted of petitioners' testimony that Sir Shaker's behavior

manifested nervousness, not pain, and that Doctor Binkley

startled the horse by tossing her hair.     The strength of these

assertions was severely diluted when the ALJ credited the

testimony of Drs. Binkley and Hendricks that they could

distinguish between pain responses and nervousness.    In light of

the record as a whole, we are satisfied that a reasonable mind

would accept as adequate the evidence supporting the finding that

Sir Shaker was sore.   See Passaic Valley Sewage Comm'rs, 992 F.2d

at 481.

          We are not compelled to reach the opposite conclusion

merely because the veterinarians were unable to recall the

substance of their respective affidavits.    In spite of

petitioners' protestations to the contrary, it is well settled

that affidavits are a form of probative evidence.    See, e.g.,

Richardson v. Perales, 402 U.S. 389, 407 (1971).    Though live

testimony may generally be favored over affidavits because the

former permits cross-examination and credibility assessment,

these interests are adequately safeguarded when, as in this case,


4
  A survey of decisions under the Act demonstrates that the
testimony and affidavits of examining veterinarians, absent
contrary evidence, is commonly dispositive in cases brought under
the Act. See generally Elliott, 990 F.2d. at 146; Stamper v.
Secretary of Agriculture, 722 F.2d 1483, 1486-87 (9th Cir. 1984);
Fleming v. United States Dep't of Agriculture, 713 F.2d 179,
185-86 (6th Cir. 1983); Thornton, 715 F.2d at 1510-11. Given the
nature and subject of the Act, it is difficult to imagine an
alternative method of proof in such cases.
the affiant appears in court.    See id.   Though the doctors'

inability to recall their respective examinations of Sir Shaker

impaired petitioners' ability to cross-examine as to examination

itself, this does not upset our determination that the finding of

soreness is supported by substantial evidence.

          Any discrepancy between the two veterinarians'

affidavits does not alone suggest that the finding of soreness is

not supported by substantial evidence.     Each affidavit

independently supports the finding of soreness; that the

veterinarians arguably did not conduct identical examinations of

Sir Shaker is not relevant to the weight of each which, taken

together, constitute substantial evidence supporting the finding

of soreness.

          Finally, petitioners find it significant that Dr.

Henricks originally wrote a different horse's name on the

affidavit.   When questioned about this on cross-examination, Dr.

Hendricks explained that he immediately realized his error and

corrected it.   Because this is essentially a question of Dr.

Hendricks' credibility, an assessment reserved for the ALJ who

observed Dr. Hendricks in the courtroom, we will not attempt to

review this finding on appeal.

                               III.
          For the foregoing reasons, we will deny the petition
for review.
