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Wagner v. Department of Agriculture

March 3, 1994

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).

Before: Sloviter, Chief Judge, Alito, Circuit Judge, and Parell, District Judge*fn*

Author: Sloviter

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.*fn1 Dr. Binkley observed Sir Shaker respond with pain by pulling its foot away and tensing its abdomen when DQP Thomason palpated Sir Shaker's pasterns.*fn2

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 ...


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