United States Court of Appeals,

Eleventh Circuit.

No. 94-7044.

Johnny E. LEWIS and Jerry M. Morrison, Petitioners,

v.

SECRETARY OF AGRICULTURE, United States Department of

Agriculture, Respondents.

Jan. 22, 1996.

Petition for Review of an Order of the Secretary, United States

Department of Agriculture.

Before HATCHETT and BIRCH, Circuit Judges, and GODBOLD, Senior

Circuit Judge.

GODBOLD, Senior Circuit Judge:

Jerry M. Morrison, a horse owner, and Johnny E. Lewis, a horse

trainer, seek review of a final order of the Secretary of

Agriculture entered in an administrative proceeding under the Horse

Protection Act, 15 U.S.C. §§ 1821-1831. A Judicial Officer (JO),

acting for the Secretary of Agriculture, determined that the horse

"Senator's Mr. Big" was sore when entered in the Northport

(Alabama) Horse Show, that trainer Lewis violated the Act by

entering the sore horse and that owner Morrison violated the Act by

allowing the entry of a sore horse. Each was given the maximum

civil penalties allowed under 15 U.S.C. § 1825(b)(1) and (d), a

$2,000 penalty and disqualification from showing or exhibiting a

horse for a year.

We affirm the decision of the Secretary that the horse was

sore and the decision that trainer Lewis violated the Act by

entering the sore horse. We reverse the decision that owner

Morrison violated the Act by allowing the entry of a sore horse and
 1

A horse is sore under the Act 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,

(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.

15 U.S.C. § 1821(3) (1982). 

remand for further proceedings.

"Senator's Mr. Big" is a Tennessee Walking Horse. Such horses

are prized for their unique gait. Striving for this high-stepping

gait, some horse owners participate in the inhumane practice of

soring, which involves applying mechanical devices or chemical

substances to the forelimbs of the horse. 15 U.S.C. § 1821(3)

(1982).1

 Soring causes pain to the horse when it attempts to place

a forefoot on the ground, and the forelimb is then thrust forward.

This artificially produces the unique gait naturally produced

through years of training and championship bloodlines.

Congress reacted to the soring practice by enacting the Horse
Protection Act. The Act prohibits:

(2) The (A) showing or exhibiting, in any horse show or

horse exhibition, of any horse which is sore, (B) entering for

the purpose of showing or exhibiting in any horse show or

horse exhibition, any horse which is sore, (C) selling,

auctioning, or offering for sale, in any horse sale or

auction, any horse which is sore, and (D) allowing any

activity described in clause (A), (B), or (C) respecting a

horse which is sore by the owner of such horse.

15 U.S.C. § 1824(2).

Lewis entered "Senator's Mr. Big" in the Northport Show.

Ashley, owner Morrison's daughter, planned to show the horse in

three separate events. In the first event Rickey Statham, a

Designated Qualified Person ("DQP"), examined the horse. A DQP is

a person employed by the horse show management to examine horses

and to determine if the horses are sore. The appointment of DQPs

protects the show's management from liability under 15 U.S.C. §

1824(3). The horse was passed and participated in the first event.

Before the second event Statham again examined the horse, and it

again passed. Department of Agriculture (USDA) veterinarians

observed these examinations.

However, before the horse participated in the second event the

show sponsors announced that the horse, and Ashley as rider, were

disqualified because of Ashley's young age. Morrison prepared to

leave the show with the horse, but after he had loaded the horse on

the trailer the sponsors decided that Ashley was eligible for the

event. The horse was quickly removed from the trailer and again

examined by Statham. This time he wrote up a ticket noting that

the horse was disqualified from showing because it was "sensitive

in both front feet." Two USDA veterinarians, Dr. Hugh Hendricks

and Dr. Lowell Wood, then examined the horse by performing a
digital palpation test on the pastern areas. Both doctors

determined that the horse was sore. The two departmental

veterinarians completed a form, recording their findings.

About an hour after the horse was written up by Statham it was

examined by Dr. James W. St. John, Jr., the horse's regular

veterinarian, who found that the horse was not sore. Later that

evening Dr. Hendricks wrote an affidavit describing his

examinations and findings, and Dr. Wood completed a similar

affidavit a day or two later. Dr. St. John also gave an affidavit.

The Morrison family participates in horse shows as a hobby,

not as a business undertaking. Morrison contends that he

instructed trainer Lewis that if the horse exhibited sensitivity or

soreness he was not to show the horse and that the horse should not

be sored. Lewis acknowledges that he received such instructions.

A complaint was issued charging trainer Lewis with a violation

of § 1824(2)(B) and charging owner Morrison with a violation of §

1824(2)(D). A hearing was held before an ALJ who found that Lewis

violated the Act by entering in the show a horse that was sore and

that Morrison violated the Act by allowing the entry of a sore

horse. Both appealed and a JO, acting for the Secretary, affirmed.

With minor variations he adopted the ALJ's decision. He found that

the horse was sore and, additionally, relied on the statutory

presumption of § 1825(D)(5) that a horse is presumed to be sore if

it manifests abnormal sensitivity or inflammation in both of its

forelimbs.

I. Sufficiency of the evidence

 Our standard of review under the Act is a narrow
one—determining whether the JO employed the proper legal standards

and whether substantial evidence supports the decision. Fleming v.

U.S. Dept. of Agric., 713 F.2d 179, 188 (6th Cir.1983).

"Substantial evidence is more than a scintilla but less than a

preponderance." Elliott v. Administrator, Animal & Plant Health

Inspection Serv., 990 F.2d 140, 144 (4th Cir.1993), cert. denied,

--- U.S. ----, 114 S.Ct. 191, 126 L.Ed.2d 149 (1993). We hold that

sufficient evidence supports the Department's conclusion that the

horse was sore. Also, as an alternative ground, the JO relied upon

the rebuttable presumption of soring set out in § 1825(d)(5). The

two USDA veterinarians were highly experienced, they used accepted

testing procedures, and they conducted thorough examinations. The

DQP determined that the horse was not sore on two examinations, but

we cannot say that the Secretary erred in concluding that

veterinarians are better qualified to make the determination of

soreness.

Dr. St. John is a federally qualified veterinarian who

specializes in equine practice and examines horses using the same

palpation tests used by the departmental veterinarians. His

testimony differs from theirs—he thought the horse was merely

nervous, and he was troubled by its having passed two DQP exams.

But we cannot say that the Secretary erred in giving less weight to

his testimony on the ground that he was not impartial, that he

lacked experience with the requirements of the Act, that he

misunderstood the requirements for soreness, that an affidavit he

had given was inconsistent with his testimony, and that his

observations of mere nervousness by the horse were disputed by
other observers. Also his examination was made some 40 to 50

minutes after the USDA veterinarians completed their examinations,

and it was done in the horse trailer where lighting conditions were

less than desirable.

II. Violation by the trainer

 The fact of the entry of the horse by trainer Lewis and owner

Morrison is admitted. The evidence of soring was sufficient.

Lewis urges, however, that he had no knowledge that the horse was

sore. But there is no knowledge requirement. Thornton v. U.S.

Dept. of Agric., 715 F.2d 1508, 1511 (11th Cir.1983). Congress

amended the Act in 1976 with that intention. We must, therefore,

affirm the finding of a violation by the trainer.

III. Violation by the owner

 Proof of four elements is necessary to establish a violation

of § 1824(2)(D) by an owner:

(1) the person charged is the owner of the horse in question;

(2) the horse was shown, exhibited, or entered in a horse show

or exhibition;

(3) the horse was sore at the time it was shown, exhibited, or

entered; and

(4) the owner allowed such showing, exhibition, or entry.

Baird v. U.S. Dept. of Agric., 39 F.3d 131, 135 (6th Cir.1994).

The Secretary agrees that these four elements must be proved.

Our decision with respect to the owner turns on the meaning of

the fourth element and the word "allow." In Thornton we held that

an owner could "allow" the entry of a sore horse into competition

even if the owner had no knowledge that the horse was sore. But

determination that knowledge is irrelevant solves only half the
problem. Still left is a question of first impression in this

circuit: Accepting that the owner need not have knowledge, what

standard of liability does the fourth element impose on him? The

Secretary's position is straightforward and unequivocal: entry (by

the owner or by one acting for him) plus ownership and soreness are

the only required elements for a violation. "Allowing" is made an

ineluctable consequence of entry plus soring—if the horse is sore

and is entered the owner has "allowed" under factor four, and, all

factors being met, there is a violation. Stating it another way,

"allowing" by an owner is subsumed in factors two and three.

The Eighth Circuit has described the Secretary's position as

"strict liability." Burton v. U.S. Dept. of Agric., 683 F.2d 280,

282 (8th Cir.1982). The Sixth Circuit describes the Department's

interpretation as effectively rewriting the statute, making a

nullity of the requirement that the owner "allow" the horse to be

entered, shown, or exhibited while sore. Baird v. U.S. Dept. of

Agric., 39 F.3d 131, 136 n. 10 (6th Cir.1994). That court

describes the statute as not establishing strict liability, id. at

136 n. 9, but the government as arguing for "something akin to

strict liability." Id. at 135.

The Eighth Circuit, in Burton, focused on the definition of

"allow." The court explained that an owner could escape liability

under § 1824(2)(D) if the following three factors are shown:

(1) there is a finding that the owner had no knowledge that

the horse was in a "sore" condition,

(2) there is a finding that a Designated Qualified Person

examined and approved the horse before entering the ring, and

(3) there was uncontradicted testimony that the owner had

directed the trainer not to show a "sore" horse.
Burton, 683 F.2d at 283. Under Burton the presence of these three

factors, taken together, excuses liability. The Department

declines to follow Burton except in cases in which an appeal would

lie to the Eighth Circuit.

In Baird the Sixth Circuit attempted to give meaning to the

"somewhat protean character" of the word "allow." It indicated

that an owner may "allow" by condoning or authorizing the conduct

in question or failing to prevent it by "looking the other way" or

"burying one's head in the sand," and one who does not "know" may

"allow" by cultivating a training atmosphere conducive to soring or

doing nothing to dissuade it. Baird, 39 F.3d at 137.

The Baird court then formulated a burden-shifting test. It

held that the government must, as an initial matter, make out a

prima facie case of a § 1824(2)(D) violation by establishing

ownership, entry, and soreness. Once the government establishes a

prima facie case the owner may offer evidence that he took an

affirmative step in an effort to prevent the soring that occurred.

If the owner presents such evidence and the evidence is

"justifiably credited," it is then up to the government to prove

that the effort of the owner concerning soring of horses was merely

a pretext or a self-serving ruse designed to mask what is in

actuality conduct violative of § 1824. But we can find no support

in the Act for a burden-shifting test. Rather it seems to us that

analysis of the Act does not focus on an allocation of evidentiary

burdens but instead on definition of the term "allow."

The Department urges this court to adopt the reasoning of the

D.C. Circuit in Crawford v. U.S. Dept. of Agric., 50 F.3d 46
(D.C.Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 88, 133

L.Ed.2d 45 (1995). That court held that "allow" has a passive

meaning, i.e., "to permit by neglecting to restrain or prevent."

And, if an owner allows his sore horse to enter a competition, the

Secretary may assume that the owner has not prevented the trainer

from soring the horse. According to Crawford, the owner may rebut

the assumption and escape liability if a stranger was responsible

for the soring or if the trainer was responsible and was

discharged. Thus the consequence of ownership plus entry plus

soreness is made ineluctable but for a small escape hatch—a

stranger did it or the trainer was fired. Recognition by the

Department of the first prong—"the owner didn't "allow' what a

stranger did"—is in itself a recognition that ineluctable

consequences simply does not fit as a standard. The second prong

is a throwaway rationale that may make one feel that the

Secretary's position is not entirely arbitrary. But, though an

owner's post-event punishment of an erring trainer may be

prophylactic, it has no relation to whether the owner allowed the

event. We do not follow Crawford.

With a slight caveat we find the Burton test persuasive. The

test fits neatly into traditional judicial analysis. It carries

out the purposes of the Act while providing some protection for

horse owners who are cooperating in seeking compliance. The first

part of the Burton test does not conflict with this court's holding

in Thornton. That part requires a finding that the owner had no

knowledge of the soring. Thornton held that an owner violated §

1824 by allowing the entry of a sore horse into a show even if the
owner did not know the horse was sore. The Burton test only

protects an owner who does not know the horse was sore if a DQP

examined the horse and if the owner had directed the trainer not to

sore. Though an owner lacks knowledge, he may still be liable if

he fails to meet the two other factors.

The second element of the Burton test emphasizes the

importance of DQPs. Congress expressly recognized this importance

in 15 U.S.C. § 1823(c):

The Secretary shall prescribe by regulation requirements for

the appointment by the management of any horse show, horse

exhibition, or horse sale or auction of persons qualified

[i.e., DQPs] to detect and diagnose a horse which is sore or

to otherwise inspect horses for the purposes of enforcing this

chapter.

A horse show may be liable for not providing DQPs at horse shows.

15 U.S.C. § 1824(4).

Here, the owner fulfilled this second factor. The horse

passed two DQP examinations but failed the third, and the third led

to further examination and the filing of the charge. The JO

considered these examinations irrelevant except the third. A DQP

examination may be too remote to be accepted as probative, but it

seems to us that all DQP examinations at the same show on the same

day are relevant. The JO relied upon cases in which the owner

attempted to show that the horse was not sore on the day in

question because it had competed in other shows at other times and

had not been found sore. See In re: A.P. Holt, 52 Agric.Dec. 233

(1993) ("[T]he fact that "Flashing Gold' had competed in other

shows and had not been found sore is essentially irrelevant to the

question of whether he was sore at the Celebration show."), aff'd

per curiam, No. 93-3369 (6th Cir.1994) (unpublished); In re:
Larry Edwards, 49 Agric.Dec. 188, 197 (1990) ("The fact that the

Respondents had shown horses many times before with only a few

being written up is also not relevant to whether the horses in this

case were sore on the nights in question."), aff'd per curiam, 943

F.2d 1318 (11th Cir.1991) (unpublished), cert. denied, 503 U.S.

937, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992); In re Richard L.

Thornton, 41 Agric.Dec. 870 (1982) ("Since any horse owner or

trainer could have a motive to sore a horse for a particular show,

or could accidentally sore the horse a little more than planned on

a particular occasion, I do not attach any weight to the fact that

a horse was not written up as sore in examinations by USDA

personnel at shows other than the one at issue in a particular

case.").

 The caveat we put on Burton relates to the third factor.

Compliance with it (along with the other two factors), frees the

owner of the ineluctable consequences of entry plus the fact of

soreness and it frees him of being found to "allow" in the passive

sense described in Baird by "hiding his head" or doing nothing.

But compliance with the third element must be meaningful rather

than purely formal or ritualistic. The owner may give firm and

certain and suitably repeated directions not to sore and not to

show a horse that is in sore condition. He may maintain a training

environment that discourages soring or makes it impossible. He may

carry out inspection practices that tend to reveal any efforts to

sore. But, whatever the form, his efforts must be meaningful and

not a mere formalistic evasion.

The record developed by the ALJ is not sufficient to evaluate
 2

The petitioners have listed as issues that the statutory

definition of soreness is so vague that the application of it

deprives the petitioner of due process. This issue has not,

however, been briefed and we do not consider it. 

the first and third factors under the Burton test. The second

factor must be reconsidered with appropriate weight given to the

three findings by the DQPs.2

AFFIRMED in part, REVERSED and REMANDED in part.