FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 February 21, 2007

THOMAS K. KAHN

CLERK

 Honorable John F. Nangle, United States District Judge for the Eastern District of *

Missouri, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-11571

________________________

DOA No. 02-0001-HPA

CHRISTOPHER JEROME ZAHND, 

Petitioner, 

versus 

SECRETARY OF THE DEPARTMENT OF AGRICULTURE, 

Respondent. 

________________________

Petition for Review of a Decision of the

Department of Agriculture

_________________________

(February 21, 2007)

Before BIRCH and PRYOR, Circuit Judges, and NANGLE, District Judge. *

PRYOR, Circuit Judge:

This petition for review of an order of the Secretary of the United States
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Department of Agriculture presents the following issue: whether substantial

evidence supports the decision of a Judicial Officer for the Department of

Agriculture that Lady Ebony’s Ace, a four-year-old Tennessee Walking Horse, was

sore within the meaning of the Horse Protection Act, 15 U.S.C. §§ 1821-1831,

when she was entered in a horse show in Shelbyville, Tennessee, on May 25, 2000. 

After two veterinarians for the Department of Agriculture inspected Lady Ebony’s

Ace at the show, a ticket was issued charging Christopher Jerome Zahnd, the

horse’s trainer, and Ronald Beltz, the horse’s owner, with violating the Horse

Protection Act by entering a sore horse. Following a hearing, an Administrative

Law Judge dismissed the complaint because he found that Zahnd had rebutted the

statutory presumption of violation, but a Judicial Officer reversed. The Judicial

Officer relied on the expert testimony of a veterinarian who examined the horse. 

After thorough review of the record, we affirm. 

I. BACKGROUND

On the morning of May 25, 2000, Zahnd loaded Lady Ebony’s Ace into a

horse trailer at his stable in Trinity, Alabama. Zahnd then drove to the 30th

Annual Spring Fun Show Preview “S.H.O.W. Your Horses” in Shelbyville,

Tennessee. Lady Ebony’s Ace spent the greater part of the day in the trailer

because, in addition to driving time, Zahnd stopped for several hours at a horse sale

and a stall had not been procured for the use of Lady Ebony’s Ace before the show. 
3

When Lady Ebony’s Ace was unloaded from the trailer, shortly before her preshow inspection, she had been in the horse trailer for eleven to twelve hours. After

she was unloaded, Lady Ebony’s Ace was examined by Zahnd and Larry Joe

Appleton Jr., who was acting as Zahnd’s groom for the night. Neither Zahnd nor

Appleton observed any abnormal responses from the mare. 

Lady Ebony’s Ace was then examined by Charles Thomas, the Designated

Qualified Person hired by the Spring Fun Show to ensure compliance with the

Horse Protection Act, and two veterinarians for the Department of Agriculture,

Drs. Clement Dussault and John Guedron. The purpose of that examination is to

determine whether the horse is sore, that is, whether a horse has been abused with

chemical or mechanical devices and will feel pain when moving. The typical

examination takes a minute to a minute and 15 seconds and involves two stages. 

First, the horse is observed as it walks around a cone. Second, the feet and legs of

the horse are palpated with thumb pressure. 

Thomas examined Lady Ebony’s Ace twice. After his examination, Thomas

disqualified her from showing that night. Thomas noted that Lady Ebony’s Ace

reacted to palpation on both front feet and walked slowly with a slight pull on the

reins when led. Thomas noted a mild reaction on the left front foot outside and a

stronger reaction on the right front foot outside. Thomas did not find a violation of

the Horse Protection Act. 
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Lady Ebony’s Ace was then examined by Dr. Dussault. Dr. Dussault

observed that Lady Ebony’s Ace moved “somewhat freely” as she moved around

the cone. On palpation, Dr. Dussault observed that Lady Ebony’s Ace withdrew

her foot when he palpated the medial and lateral aspects of both the left and right

front pasterns. Dr. Dussault described the reaction as moderate. Based on his

observations, Dr. Dussault requested that Dr. Guedron examine Lady Ebony’s Ace. 

During his examination, Dr. Guedron observed that, as she walked around

the cone, Lady Ebony’s Ace walked slowly “with a shortened gait and was

reluctant to lead.” On physical examination, Dr. Guedron observed “strong,

consistent and repeatable pain responses . . . to digital palpation of both the medial

and lateral heel bulbs” of the left foot. On the right foot, Dr. Guedron also

observed “strong, consistent and repeatable pain responses to digital palpation of

the same areas of the pastern as described for the left foot.” 

After their examinations, Dr. Dussault and Dr. Guedron conferred and

agreed that Lady Ebony’s Ace was sore as defined by the Horse Protection Act. In

separate affidavits, both doctors gave their opinion that the horse had been sored

by use of chemical or mechanical means. Zahnd and Beltz were each issued tickets

that alleged violations of the Horse Protection Act.

On October 25, 2001, the Acting Administrator of the Animal and Plant

Health Inspection Service of the Department of Agriculture filed a complaint
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against Beltz and Zahnd and alleged that Lady Ebony’s Ace had been entered in

the show in Shelbyville for the purpose of showing while she was sore. A hearing

was scheduled for June 3, 2004. Because Dr. Guedron was unavailable to testify

on that date, the hearing was rescheduled to December 1, 2004. Before the

rescheduled hearing, the complaint against Beltz was settled, which left Zahnd as

the only respondent. 

At the hearing, the Secretary offered the testimony of Dr. Dussault and eight

exhibits, which consisted of the affidavits of Thomas, Dr. Dussault, Dr. Guedron,

and Zahnd, the DQP ticket and examination sheet, the violation ticket issued by the

Department, and a video of the examination proceedings. Zahnd and Appleton

testified for Zahnd. Dr. Guedron did not testify. 

Dr. Dussault testified that, during an examination, he looks for odors,

scarring, or evidence of other artificial substances on a horse’s leg. With regard to

palpation, Dr. Dussault looks for a repeated response such as withdrawal of the

foot as a sign of pain. Dr. Dussault testified that the pressure typically applied

during palpation is enough to blanch the thumbnail. Dr. Dussault testified that

palpation alone would not cause a horse to feel pain or move but jabbing a horse

could make it move. 

With regard to his examination of Lady Ebony’s Ace, Dr. Dussault testified

that, when he palpated the lateral part of the horse’s pastern, she withdrew her foot,
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which is a sign of pain. Dr. Dussault did not observe any smells or scarring on

Lady Ebony’s Ace and did not recall any hair loss. On cross-examination, Dr.

Dussault agreed that increased reactions to multiple palpations could be a sign

either that the horse was feeling more pain or that the horse was irritated. Dr.

Dussault also agreed that a horse that had been in a trailer all day could be more

aggravated than a horse that had been in a stall, but opined that he did not believe

Lady Ebony’s Ace was aggravated because she only responded when palpated on

the lateral part of her pastern. 

Appleton testified first for Zahnd. Appleton testified that Lady Ebony’s Ace

had spent eleven to twelve hours in a trailer on the day of the show and that the

trailer was “pretty unstable” when moving. With regard to his examination of

Lady Ebony’s Ace before the inspection by the Designated Qualified Person. 

Appleton testified that he did not observe any reactions. Appleton testified that a

horse will become more irritated with repeated mashing of its foot and that,

depending on the manner of mashing, an examiner can obtain a different reaction

from a horse. Appleton also observed that, at least once during the examinations of

Lady Ebony’s Ace, another horse walked directly behind her. According to

Appleton, most of the time a horse will move if another horse walks behind it

during inspection. Appleton admitted, on cross-examination, that he was not a

veterinarian. 
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Zahnd then testified on his own behalf. Zahnd testified that his occupation

was training Tennessee Walking Horses and that he had been in that field for

fifteen years. Zahnd testified that he showed Lady Ebony’s Ace eight to ten times

a month from March to November 2000. The instant citation was the only one

Zahnd had ever received. Zahnd testified that, on the night of the Spring Fun

Show, both he and Appleton examined Lady Ebony’s Ace before the official

inspection and he did not observe any response to palpation during either

examination. Zahnd testified that the kind of pressure used on a horse could affect

the strength of the reaction. Zahnd also testified that Lady Ebony’s Ace was a

“little bit stubborn and hateful thing” and that if her routine was changed she could

become irritated. Zahnd observed that, during one of the examinations, Lady

Ebony’s Ace was resting her back foot in a position that a horse will not take if it is

sore. Zahnd testified that he did not know during which inspection the horse rested

her back foot. In addition, Zahnd testified that if you poke on a horse’s foot

enough times eventually she will move. Zahnd testified that, in his experience,

hair loss or scarring is apparent on 90 percent of sored horses. On crossexamination, Zahnd admitted that he was not a veterinarian and a veterinarian

should know more, “without a doubt,” about whether a horse is sore. 

After consideration of the evidence, the Administrative Law Judge

dismissed the complaint. The Administrative Law Judge concluded that the
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Secretary had established the statutory presumption that Lady Ebony’s Ace was

sore, 15 U.S.C. § 1825(d)(5), but Zahnd had rebutted the statutory presumption. 

The Administrative Law Judge concluded that Zahnd had rebutted the presumption

of soreness with evidence that the reactions of Lady Ebony’s Ace could be

attributed to multiple factors, including her temper and her long day spent in a

trailer. The Administrative Law Judge was also influenced in his decision by the

lack of any physical indicia of soring; the failure of Dr. Guedron to testify,

specifically with regard to his manner of palpation; the lack of any rebuttal

evidence to contradict Zahnd’s explanations for the mare’s behavior; and Zhand’s

unblemished record of compliance with the Horse Protection Act. 

On appeal, the Judicial Officer reversed the Administrative Law Judge. 

After making independent findings of fact, the Judicial Officer summarily

concluded that Zahnd’s evidence was not sufficient to rebut the statutory

presumption and did not outweigh the evidence that Lady Ebony’s Ace was sore. 

The Judicial Officer then addressed the conclusions of the Administrative Law

Judge and his disagreements with those conclusions. The Judicial Officer found

that the failure of Dr. Guedron to testify was not a detriment to the Secretary’s case

because the pressure used by Dr. Guedron in palpating Lady Ebony’s Ace was

irrelevant. With regard to the absence of scarring, chemical odor, and hair loss, the

Judicial Officer found that, according to the policy of the Secretary of Agriculture,
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digital palpation alone is a highly reliable method of determining whether a horse

is sore. Based on his “personal experience with Horse Protection Act cases,” the

Judicial Officer disagreed with the conclusion of the Administrative Law Judge

that “scarring, chemical odor, and hair loss are the three most common indicia of

the use of mechanical or chemical soring devices” and noted that Dr. Dussault

testified that soreness was possible without odor or hair loss. The Judicial Officer

rejected Zahnd’s explanations for the reactions of Lady Ebony’s Ace because he

concluded that Lady Ebony’s Ace was not a “silly” horse, that is, a horse that

moves no matter where it is touched. The Judicial Officer reviewed a videotape of

the examinations by Thomas, Dussault, and Guedron to support his finding. 

Finally, the Judicial Officer found that Zahnd’s record of compliance was

irrelevant to the question whether Lady Ebony’s Ace was sored. The Judicial

Officer did not otherwise explain his conclusion that Lady Ebony’s Ace was

proven sore and that Zahnd did not rebut the presumption. The Judicial Officer

imposed a fine of $2200 and disqualified Zahnd from showing or exhibiting for

one year. 

II. STANDARD OF REVIEW

We review the findings of the Secretary to determine whether they are

supported by substantial evidence. 15 U.S.C. § 1825(b)(2). “Substantial evidence

is: ‘something less than the weight of the evidence, and the possibility of drawing
10

two inconsistent conclusions from the evidence does not prevent an administrative

agency’s finding from being supported by substantial evidence.’” Thornton v. U.S.

Dep’t of Agric., 715 F.2d 1508, 1510 (11th Cir. 1983) (quoting Consolo v. Fed.

Mar. Comm’n, 383 U.S. 607, 620, 86 S. Ct. 1018, 1026 (1966)). To support the

findings of the Secretary, substantial evidence must be found on the record as a

whole. See Giles Lowery Stockyards, Inc. v. Dep’t of Agric., 565 F.2d 321, 326

(5th Cir. 1977). 

III. DISCUSSION

To resolve this petition, we address two matters. First, we address the nature

of the alleged violation of the Horse Protection Act, 15 U.S.C. §§ 1821-1831, at

issue in this proceeding. Second, we address whether substantial evidence

supports the decision of the Judicial Officer that Zahnd did not rebut the statutory

presumption. 

A. The Alleged Violation of the Horse Protection Act

The Horse Protection Act makes it illegal for any individual to enter “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). As used by the statute, soring means the

application of devices or chemicals to the forelimbs of a horse to achieve the

distinctive high-stepping gait of the Tennessee Walking Horse. Soring causes

intense pain to the horse and gives the horse trainer an unfair advantage in
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competition by artificially inducing the distinctive gait. 

Under the Act, a horse is sore only if the soreness is the result of one of

several artificial means.

(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, except that such term does not include such an

application, infliction, injection, use, or practice in connection with

the therapeutic treatment of a horse by or under the supervision of a

person licensed to practice veterinary medicine in the State in which

such treatment was given.

Id. § 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). 

With respect to Lady Ebony’s Ace, there is no dispute that the statutory

presumption of soreness was triggered. The Designated Qualified Person and two

veterinarians for the Department of Agriculture palpated Lady Ebony’s Ace and

observed abnormal sensitivity in both of her forelimbs. “Nevertheless, it is well
12

settled that the presumption of soreness is rebuttable. While it imposes on the

party against whom it is directed the burden of producing evidence to me[e]t or

rebut the presumption, the burden of proof remains with the [Complainant] and

never shifts to the Respondent.” In re Martin, 53 Agric. Dec. 212, 223 (Mar. 16,

1994) (brackets in original). 

B. The Decision of the Judicial Officer that Zahnd Did Not Rebut the Statutory

Presumption of Soreness Is Supported by Substantial Evidence. 

Whether we can meaningfully review the decision of the Judicial Officer

that Zahnd failed to rebut the statutory presumption of soreness is a close question. 

The Administrative Law Judge found that Zahnd rebutted the presumption, but the

Judicial Officer disagreed. Because the Judicial Officer is not bound by the

decision of the Administrative Law Judge and can draw independent inferences,

we review only the decision of the Judicial Officer for substantial evidence. See

Universal Camera, 340 U.S. at 496, 71 S. Ct. at 469. Our decision is made

difficult because, although the Judicial Officer expressed his disagreement with the

decision of the Administrative Law Judge, the Judicial Officer did not offer any

reasoning for his decision that Zahnd did not rebut the statutory presumption. The

Judicial Officer failed to address at least some of Zahnd’s evidence and explain

why that evidence did not rebut the presumption. 

At the hearing, Zahnd presented a few explanations to rebut the presumption
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that Lady Ebony’s Ace was sore. Zahnd’s evidence was that Lady Ebony’s Ace

was an irritable horse: she had been subject to the irritation of a day in a horse

trailer; she had been subject to multiple palpations; the manner of palpation can

affect whether a horse moves; and an irritated horse could exhibit greater reactions

than a non-irritated horse. Zahnd also presented two other possible causes for

some of the movements of Lady Ebony’s Ace: first, Appleton testified that the

movement of another horse behind a horse being examined ordinarily will make

the latter horse move; and second, Zahnd observed that Lady Ebony’s Ace stood

resting a back foot during an examination, which was, in Zahnd’s lay experience, a

position a horse does not take when it is sore. Both Appleton and Zahnd

apparently were credible witnesses. 

The only response of the Judicial Officer to this evidence was that the record

did not support the finding that Lady Ebony’s Ace was a “silly” horse. Although

the record supports that finding, the suggestion that Lady Ebony’s Ace was acting

“silly” was not the sole explanation for her behavior offered by Zahnd. The term

“silly” was used to refer to the horse’s irritability. In an affidavit procured by an

investigator for the Department of Agriculture, Zahnd stated that the horse “was

stirred up, because she acted silly during the whole time she was being checked.” 

The Administrative Law Judge described Zahnd’s explanation for the horse’s

behavior as “due to the horse acting ‘silly’ as a result of spending most of the day
14

in a horse trailer, and as a result of the extended examination process.” Although

both Appleton and Zahnd provided other testimony such that Lady Ebony’s Ace

moved when a horse walked behind her and that a horse will not rest a foot when it

is sore, the Judicial Officer did not explain his rejection of these explanations. 

Nevertheless, under our highly deferential standard of review, we conclude

that the rejection by the Judicial Officer of the explanation that Lady Ebony’s Ace

was “silly” was intended to encompass Zahnd’s explanation that the mare was

aggravated or irritated, and substantial evidence supports that finding. As we have

noted in our review of agency decisions under the “arbitrary, capricious, . . . (or)

unsupported by substantial evidence” standard, “‘[t]he agency must articulate a

rational connection between the facts found and the choice made. . . . While we

may not supply a reasoned basis for the agency’s action that the agency itself has

not given, we will uphold a decision of less than ideal clarity if the agency’s path

may reasonably be discerned.’” Refrigerated Transp. Co., Inc. v. I.C.C., 663 F.2d

528, 531 (5th Cir. 1981) (quoting Bowman Transp., Inc. v. Arkansas-Best Freight

Sys., Inc., 419 U.S. 281, 285-86, 95 S. Ct. 438, 442 (1974)). Although Zahnd and

Appleton provided testimony that the reactions of Lady Ebony’s Ace could be

attributed to her irritable temper and multiple irritations, Dr. Dussault testified that

Lady Ebony’s Ace was not acting aggravated or irritated when she was palpated. 

The Judicial Officer was entitled to rely on Dussault’s testimony and an
15

independent review of the videotape of the examinations by Thomas, Dussault, and

Guedron to reject the explanation given by Zahnd. 

The only remaining evidence offered by Zahnd to refute the presumption

was Appleton’s testimony that the movement of one horse behind another could

cause the latter horse to move, and Zahnd’s testimony that, in his experience, a

horse would not rest its foot when it is sore. Neither statement is sufficient for us

to conclude that the decision of the Judicial Officer is not supported by substantial

evidence. The Judicial Officer was entitled to rely on both his review of the

videotape of the examinations and the expert testimony of a veterinarian who

performed a reliable examination of the horse rather than the vague and speculative

testimony of two lay witnesses.

IV. CONCLUSION

The petition for review is DENIED.