U. S. FIFTH CIRCUIT COURT OF APPEALS OVERTURNS USDA “MANDATORY MINIMUM” PENALTIES REGULATION –  CCABLAC (Citizens Campaign Against “Big Lick” Animal Cruelty) VOWS TO NEVER SOUND RETREAT IN FIGHT TO ELIMINATE THE SORE “BIG LICK”

JOHN MINOR WISDOM FEDERAL COURTHOUSE ““ NEW ORLEANS, LA  ““  “The Horses” were thrown under the bus” today by a Fifth Circuit Court of Appeals three judge panel which overturned the “mandatory minimum” penalties federal regulation adopted by the USDA  (United States Department of Agriculture)  in July 2012.

“BIG LICK” APPELLANT MIKE MCGARTLAND AT 2014  CELEBRATION

APPELLANT MIKE MCGARTLAND AT 2014 TENNESSEE WALKING HORSE NATIONAL CELEBRATION

APPELLANT MIKE MCGARTLAND AT 2014 TENNESSEE WALKING HORSE NATIONAL CELEBRATION

In its 23 page opinion, the three judge panel found:

  • USDA had taken “intrusive steps into the private scheme to strengthen the penalties that HIOs must levy against those found to sore horses.”  
  • USDA did not have the authority to establish a mandatory  private enforcement  system  on the horse inspection programs it oversees.
  • Horse Protection Act does not contemplate the USDA involvement in HIO enforcement mechanisms.

THEHORSES

CLICK LINK BELOW TO READ THE FIFTH CIRCUIT PANEL OPINION

5th Circuit Opinion

FIFTHCIRCUITOPINION02192015

The “mandatory minimum” penalties regulation adopted by the USDA after extensive “listening sessions” put needed “teeth” in the enforcement of the Horse Protection Act to punish horse sorers.  Previously, the “self-regulation” by the Tennessee Walking Horse Celebration’s inspection program S.H.O.W., HIO had resulted in “wrist slap” penalties.

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KEY PARTS OF THE PANEL’S OPINION

“In sum, the Regulation is an indisputably significant effort by the USDA to become involved in HIO enforcement procedures. Although participants in horse shows have always been subject to regulations from both HIOs and the USDA,  the USDA has now taken intrusive steps into the private scheme to strengthen the penalties that HIOs must levy against those found to sore horses.  Additionally, the USDA significantly increased its oversight of HIO review procedures. In the past the HIOs could develop their own appeal procedures, but these procedures must now be approved by the USDA and reconfigured in accordance with the USDA’s specific requirements.

So, we now move on to decide whether the HPA contemplates such USDA involvement in  HIO enforcement mechanisms and,  as we explain below, we conclude that it  does not.    …  “The USDA purports to draw its authority to adopt the Regulation from  several provisions of the HPA. Upon examining these provisions, we conclude that none of these provisions authorizes the Regulation but conversely, that these provisions plainly prohibit the Regulation.

Thus, a broad grant of general rulemaking authority does not allow an agency to make amendments to statutory provisions. As in American Bar, the Regulation addresses an area that is plainly outside the USDA’s statutory authority. The HPA authorizes the USDA to develop a private inspection system carried out by DQPs who are certified by HIOs, but it does not imply that the USDA may then establish a mandatory private enforcement system administered by those HIOs. The USDA’s reading of its rulemaking authority under § 1828 of the HPA stretches beyond the statute’s plain language. We also reject the USDA’s argument that it can maintain this scheme merely because Congress did not expressly disallow such regulation.”

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Commenting on the Court’s decision today, CCABLAC said,    “While we are disappointed with the Court’s ruling today,   we are confident that the will of the American People to see the end of soring Tennessee Walking Horses will prevail in this matter.   The other horse breeds across the United States are lined up against the animal cruelty represented by the sore “Big Lick” Tennessee Walking Horse.  We shall never sound retreat from the cause to protect these horses from the people who hurt them or profit from them in the name of family entertainment.”  

QUESTIONS FACING USDA ENFORCEMENT OF THE HORSE PROTECTION ACT

The Fifth Circuit Court of Appeal panel’s decision today also makes moot the USDA’s Complaint to decertify the Celebration’s S.H.O.W., HIO DQP program for not complying with the Horse Protection Act.

COMPLAINT TO DECERTIFY CELEBRATION S.H.O.W. INSPECTION PROGRAM

USDACOMPLAINT01

The action filed APHIS Administrator Kevin Shea on January 9, 2014, only cited one decertification ground which was  S.H.O.W., HIO’s  failure to assess and enforce the minimum penalties against violators of the Horse Protection Act in accordance with the federal regulation imposing the mandatory minimum penalties. Mr. Shea was represented by USDA Office of General Counsel attorney Mr. Frank Martin, Jr.

KEVIN SHEA - APHIS ADMINISTRATOR

KEVIN SHEA – APHIS ADMINISTRATOR

At present,  Deputy Aphis Administrator Chester Gipson notified S.H.O.W., HIO on September 15, 2014 to issue “Letters Of Warning” to certain DQPs which refused to write “Scar Rule” violations when instructed to do so by USDA Vets overseeing them.   In response,  S.H.O.W., HIO has taken an adversarial position and refused to do so.

Also looming over the USDA are questions regarding its:

  • Resolve to enforce the “Scar Rule” using science based objective technology such as “Thermography” and “Iris Scanning” such as was done in 2014.  Confusion now exists due to the USDA recently inserting into its DQP Training the following language outline in red:
  •  SCARRULEREVISION02152015 copy
  • Complying with the OIG (Office of Inspector General) Audit) recommendation to abolish the DQP system.
 DR. CHESTER GIPSON, DVM - BLOWS HOT AND COLD ON ENFORCING THE HORSE PROTECTION ACT

DR. CHESTER GIPSON, DVM – BLOWS HOT AND COLD ON ENFORCING THE HORSE PROTECTION ACT

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POSSIBLE APPEALS OF 5TH CIRCUIT PANEL DECISION

It is likely that the USDA attorney will ask for an en banc review of the panel’s ruling by all 18 Fifth Circuit Court of Appeals Judges.   And if the panel’s decision is affirmed, it is possible that the case could be appealed to the U. S. Supreme Court.

The sore  “Big Lick” is now concentrated in the Red States.  It has been rejected by 70% of the members of the U. S. House of Representatives and by  60 U. S. Senators who have publicly called for elimination of the sore “Big Lick” by removing the chains and the padded/stack shoes (weighing 10-15 lb each) from the Tennessee Walking Show Horses.

PASTActMapCopyrightTIGHT4STATES

BILLY&RADARHEADSHOTS

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WWW.BILLYGOBOY.COM   SEPTEMBER 4, 2014 REPORT

MICHAEL MCGARTLAND/CONTENDER FARMS, LLP APPEAL HEARD BEFORE THREE JUDGE PANEL OF THE U. S. FIFTH CIRCUIT COURT OF APPEALS IN NEW ORLEANS, LOUISIANA

JOHN MINOR WISDOM FEDERAL COURTHOUSE ““ NEW ORLEANS, LA  ““  Three Judges, two from Texas and one from Mississippi,  spent about  35  minutes on Wednesday hearing oral arguments in a case which, barring passage of the  PAST ACT,  will decide the future enforcement of the Horse Protection Act, and possibly the ultimate life or death of the Big Lick Tennessee Walking Horse.

JOHN MINOR WISDOM FEDERAL COURT HOUSE

JOHN MINOR WISDOM FEDERAL COURT HOUSE

Michael McGartland/Contender Farms, LLP,  came in loaded for bear with a three lawyer team ““ trial veterans Karin Cagle and David Broiles of Fort Worth, Texas, and specialist Justin R. Chappa of Dallas, Texas to argue the case before the three judge panel.

TEXAS TRIAL LAWYER ON WRONG END OF JUDGE MEANS "SLAM DUNK"

Michael McGartland,  Contender Farms, LLP

Lee W. McGartland, PSHA Secretary & Board Member

Lee W. McGartland, PSHA Secretary & Board Member, Contender Farms, LLP

The gist of McGartland/Contender appeal is that the  USDA’s promulgation of the mandatory minimum penalties to enforce the Horse Protection Act does not provide McGartland/Contender with due process and procedural safeguards contemplated by the HPA.   M/C also argues that it is an example of governmental overreaching to achieve a desired result when the present system of self-regulation is sufficient.

The government’s position is the U. S. District Court’s Summary Judgement upholding the USDA’s  “mandatory minimum penalties” federal regulations is correct and should stand, and that the USDA’s promulgation and implementation of the federal regulation is authorized by existing case law and the HPA.

THE BACKGROUND

Charged with enforcing the Horse Protection Act,  the USDA,  after following the required procedures,  promulgated a regulation to enforce the HPA which provided for mandatory minimum penalties for soring violations.    The penalties provided real teeth to the enforcement of the HPA which had become mired in a miasma where the Horse inspection programs (HIOs) were administering “wrist slap” suspensions, and USDA Office of General Counsel Attorney Frank Martin was issuing worthless 7060 Letters of Warning clearing his docket and only actually prosecuting a few of the cases against people who sore horses.

The mandatory minimum penalties federal regulation went into effect in July 2012, and the Tennessee Walking Horse National Celebration’s S.H.O.W. HIO and Michael McGartland, Contender Farms, LLP, a Mississippi limited partnership, sued the USDA in the Northern District of Texas to stop the USDA’s implementation of the new regulation.   The Judge offered a trial, but the Plaintiffs and the USDA agreed for U. S. District Judge Terry Means to rule based on the record submitted which included briefs and documents from the parties and a “Friend of the Court” brief prepared by Washington, DC attorney Russell Gaspar on behalf of sound horse interests.  In July 2013,  Judge Means granted a Summary Judgment Motion in favor of the USDA upholding the federal regulation, and dismissed the Celebration and McGartland/Contender suit.  The Celebration accepted the federal regulation, but McGartland/Contender Farms, LLP appealed.  More briefs were submitted, including another “Friend of the Court” brief by Russell Gaspar,  and the Fifth Circuit Court of Appeals set the case for oral argument for Wednesday, September 3, 2014.

THE THREE JUDGE PANEL

The three judge panel members are  Judge E. Grady Jolly  of Jackson, Mississippi presiding,  and  Judge Edith Jones  of Houston, Texas,  and  Judge David Godbey  of Dallas, Texas.

Judge Jones asked  85-90%  of the questions of both counsels,  Judge Godbey  10-15%, and Judge Jolly didn’t ask any questions.

U. S. Circuit Judge E. Grady Jolly
U. S. Circuit Judge E. Grady Jolly
U. S. CIrcuit Judge Edith Jones
U. S. CIrcuit Judge Edith Jones
U. S. District Judge David Godbey
U. S. District Judge David Godbey

It is interesting to note that Judge  Edith Jones formerly served as Chief Judge for the entire Fifth Circuit Court of Appeals.    She was initially appointed by President Ronald Reagan to the bench in 1985.   Judge E. Grady Jolly of Jackson, Mississippi has served for 32 years, and was appointed in 1982 by President Ronald Reagan. U. S. Disrict Judge David Godbey was appointed in 2002 by President George W. Bush.

THE PARTIES AND THEIR ATTORNEYS

Attorney  Michael McGartland  was accompanied by his three attorneys:    Karen Kaigle, David Broiles  of Fort Worth, Texas, and  Justin R. Chappa  of Dallas, Texas.  Counsel Chappa argued the case before the panel.   Interestingly,   Chappa previously served as law clerk to U. S. District Judge David Godbey who is hearing the case.  Chappa graduated from Stanford Law School in 2010, and he clerked for Judge Catharina Haynes of the Fifth Circuit Court of Appeals and U. S. District Judge David Godbey before entering private practice.

The United States was represented by Honorable  Patrick Nemeroff  of the Appellate Staff, Civil Division of the  U. S. Department of Justice in Washington, DC.   Although not present, Honorable  Russell Gaspar  filed an Amicus Curiae (Friend of the Court) brief on behalf of the American Horse Protection Association, Inc.; Friends of Sound Horses, Inc.; International Walking Horse Association and National Walking Horse association, Inc.  Gaspar’s brief provides the necessary background which should allow the three Judge Panel to have a perspective of how things came to the point that the USDA had to promulgate a sweeping regulation to put teeth into the Horse Protection Act which was passed in 1970 and amended in 1976.

THE ARGUMENTS,  QUESTIONS AND COMMENTS

The order of argument was Counsel Chappa went first, then U. S. Attorney Nemeroff for the USDA, and then Chappa concluded on behalf of the Plaintiffs/Appellants McGartland/Contender.

Judge Godbey opened Counsel Chappa’s argument by saying, McGartland/Contender “has gone to great lengths to stop this regulation” and challenged Chappa to state the reasons for the judges to do so.

Counsel Chappa argued that the inspections were “subjective” and said at the recent Tennessee Walking Horse “Superbowl (referring to the Celebration) that “43% of the violations” were scar rule violation interpretations, and he questioned the severity of penalties under the new regulation.  Chappa complained that under the new regulation that there was  “no judicial oversight”,  “deprivation of procedural rights”  and plaintiffs would  “suffer monetary loss”.

In his allotted time,  U.S. DOJ Attorney Nemeroff,  on behalf of the USDA,   attempted to give a background of the HPA passed in 1970, amended in 1976, and explained the HIO concept.  He was interrupted several times by Judge Jones with questions and comments which included  “criticism of subjective inspections”.  Counsel Nemeroff explained that the increase in the severity of the penalties under the new regulation would carry out the intent of the HPA, and he provided examples of the penalties that the new regulation would, i.e.,   a one year suspension where under the old HIO system the penalties for the same offense would stair step,  60 days,  120 days and finally 1 year.

Judge Jones was critical of the proposed resulting suspensions and appeals overlapping.   Counsel Nemeroff countered by saying that the USDA regulation was designed to address the concerns outlined in the Office of Inspector General report.

Judge Jones asked what Sections of the HPA that the USDA relied upon in implementing the mandatory minimum penalties in Section 1823 (c) and Section 1825.  Judge Jones observed that  if the system had worked from 1976 to 2013 without the new mandatory minimum penalty regulation,  why was it needed now?    Regarding the Horse Protection Act, Judge Jones observed that it came about originally because  “Senators from horsey states wanted to provide for the welfare of the animals, but did not want to ruin the horse business”.    Judge Jones questioned if the HPA gave the USDA the authority to go as far as the mandatory minimum penalties regulation in enforcing the HPA.  Counsel Nemeroff replied that nowhere did the HPA set a ceiling on what the USDA determined to be the best practices to enforce the Horse Protection Act.

Counsel Chappa then proceeded to argue that if anything was wrong with the present system, it would not have taken  35  years to come up with the mandatory minimum penalties proposed by the USDA in this regulation.   Chappa concluded his argument saying that Section 1825 of the HPA provides clear judicial oversight and procedural safeguards,  and the USDA,  by implementing the mandatory minimum penalty regulations,  cannot delegate these procedural safeguards to the HIO.

The oral argument was concluded and the Court recessed.

Rulings normally take from 90 days to six months.

“””””””””””””””””””””“

OBSERVATIONS:

Judge Jones and Judge Jolly have served together for over  30  years on the Fifth Circuit Court of Appeals.  It is interesting that Judge Jones asked virtually all the questions while Judge Jolly presided.  It is also interesting that a sitting judge from the Northern District of Texas,  where this case originated and a Summary Judgment was entered,  is on the panel.  And it shows how much Appellant Mike McGartland has put into this case for him to select Justin R.  Chappa  to argue the case in front of panel member U.S. District Judge David Godbey.

Nephew Eugene talked with Randolph from Theta who went to Vanderbilt University Law School.  Randolph says you can never tell:

  • which horse will win the race,
  • who a woman is going to marry,  
  • what a three judge panel is going to do.

Randolph also says that if the USDA’s position is sustained, the Amicus Curiae (Friend of the Court) brief filed by Russell Gaspar of Cohen Mohr in Washington, DC could play a major role in that outcome.    From what happened at the Wednesday Hearing, however, it appeared that the judges either didn’t read the Amicus brief,   or more disturbingly,  they did read it and then decided to focus their attention elsewhere.  And having said that, the appearance could be all wrong.

Coming in,  the odds were strongly in favor of the Fifth Circuit Court of Appeals upholding the Summary Judgment granted by U. S. District Judge Terry Means.  Then the Fifth Circuit granted McGartland/Contender’s request for oral argument wanting to hear what the attorneys had to say.   Then in the argument on Wednesday,  there were fundamental questions as to whether or not the actions of the USDA in promulgating the mandatory minimum penalties was a governmental overreach,  why the mandatory minimum penalties regulation was 35 years in coming, and if this isn’t perhaps a matter better left to the U.S. Congress to address.

Meantime the  PAST ACT‘s window is closing.   There will be very few days remaining following the November 4, 2014 election, and possible conclusion of the Ethics probe regarding Congressman Ed Whitfield on  November 10, 2014  which was precipitated by a December 2013 letter from Lee McGartland and her fellow PSHA Directors.

The tea leaves favor a possible House action and a floor vote on the  PAST ACT, but so far,  there is  no discernible plan  to break the Senator Mitch McConnell/Senator Lamar Alexander ping-pong hold in the United States Senate.

If Senator McConnell is re-elected, and the Republicans take control of the U. S. Senate, the  PAST ACT  will be dead for the foreseeable future.

And so it goes.

BGBHEADSHOT01

 

View Violator Name Horse Name Violation Date Violation Suspension Term Settlement ($) Result
Lee McGartland Low on Gin 8/23/2012 Foreign Substance
Mike McGartland Low on Gin
Horse or Person on Suspension First Name Middle Initial Last Name Title City State Zip Code Horse Name Horse Registry Type of Finding Second Finding Detail Other Type of Finding Suspension Start Date Suspension End Date Fine Amount HIO USDA Present? Notes
Mike McGartland Raymond MS 39154 Unilateral Sore 06/16/2008 07/15/2008 NHSC

 

Lee McGartland not listed Not Listed / Unknown Low on Gin Foreign Substance Not Specified 08/23/12 Sulfur TN130373-AC 7060 10/18/13 74th Annual Tennessee Walking Horse National Celebration
Mike McGartland Raymond Mississippi 39154 Unilateral Sore Not Specified 06/16/08 07/15/08 NHSC
Mike McGartland not listed Not Listed / Unknown He s Shady in Black Foreign Substance Not Specified 08/30/12 Sulfur and Vitamin E acetate TN130188-AC 7060 10/18/13 74th Annual Tennessee Walking Horse National Celebration
Mike McGartland not listed Not Listed / Unknown Low on Gin Foreign Substance Not Specified