Skip to content

Court Grants Preliminary Injunction to McSwain



Keith and Dan McSwain have been successful in obtaining a preliminary injunction against the USDA in their inspection of Honors.  The conclusion of the ruling handed down by United States District Judge Richard W. Story stated:

"In accordance with the foregoing, the Court DECLARES that Plaintiffs have met their burden to show a substantial likelihood of success on the merits of their claim that Defendants' enforcement of the HPA violates the Due Process clause of the Fifth Amendment.  The Court GRANTS Plaintiffs' Motion for Preliminary Injunction.  Defendants are hereby ENJOINED from disqualifying Plaintiffs' horse, Honors, under the Scar Rule without providing Plaintiffs with adequate pre-deprivation process, including notice and opportunity to be heard."

The defendants in the case are Tom Vilsack, United States Secretary of Agriculture, and the United States Department of Agriculture.

The lawsuit filed by Keith and Dan McSwain was an action under the Administrative Procedures Act and the United States Constitution against the USDA for its failure to afford due process to those affected by its deprivation of property while acting under the color of federal law, for its failure to abide by its own rules, regulations, and procedures related to the Horse Protection Act, and for acting contrary to an in excess of the authority delegated to it by Congress.

The suit seeks a declaratory judgment from the court against the USDA for its failure to provide notice and hearing, thus violating the due process clause of the Fifth Amendment.  It also seeks declaratory judgment for failure to adhere to the scar rule and procedure for detecting violations as well as a preliminary and permanent injunction.  The McSwain’s also ask the court to reverse and set aside the Honors scar rule disqualifications and a recovery of their fees.

In receiving a preliminary injunction, the McSwain’s had to demonstrate: (1) they have a substantial likelihood of success on the merits; (2) irreparable injury will be suffered absent an injunction; (3) the injury to the movant outweighs the injury the proposed injunction would cause to the opposing party; and (4) the proposed injunction would serve the public interest.

The lawsuit points out many of the items the industry has complained to the USDA about regarding the application of the scar rule.  The suit points out the change in interpretation of the scar rule without any change to the HPA or Regulations, the misapplication of the anterior and posterior definitions for scar and the highly subjective nature of the inspection.

Pathology expert Dr. Paul C. Stromberg, DVM, PhD, concluded after the 2015 Celebration that the USDA’s method for enforcing the Scar Rule “ignores other possible causes and betrays a lack of understanding of basic pathologic principles.  It’s not medically rational or scientifically defendable.  It’s just pseudoscience and poor medical practice.”

The preliminary injunction granted by Judge Story is only a first step and the suit will continue to move forward in the coming months.  The USDA has not responded at this time to the granting of the injunction.

Click here to view the complete Order.

More Stories

  • Office Holiday Hours

    The office will be closed for Christmas holidays beginning Monday, Dec. 18, 2017, and will reopen Tuesday, Jan. 2, 2018. We hope you enjoy that time with your families as we will be... Read More
  • Walking For Cancer show announces date

    The 2018 Walking For Cancer show will be held April 21 at the Champions Arena in Shelbyville. The start time is still pending however organizers are aiming for 5 p.m. Further details will be announced as they become available... Read More
  • Youth Council awards

    New this year for the Youth Council, a point system was put into place to help encourage all youth members to participate in different events and horse shows. Throughout the year members earned points by helping to raise money for the FAST Legal Fund and for assisting at horse shows... Read More
  • Two new faces join TWHBEA Executive Committee

    The Tennessee Walking Horse Breeders’ and Exhibitors’ Association’s annual meetings were held last weekend in Lewisburg, Tennessee with two new faces joining the Executive Committee (EC) following the annual elections, held Saturday... Read More
  • Equine Obituary - The Land Shark

    The Report has recently learned of the passing of multi world champion and world grand champion The Land Shark. The five-year-old black stallion was owned and loved by Larry and Pam Russell.  Read More
  • Birth Announcement - Knox Lucas Robbins

    Paul and Jennifer Robbins welcomed their second son, Knox Lucas Robbins, on December 4, 2017. He weighed 8lbs., 6.5 oz and measured 20 inches in length. Read More
  • GWHEA High Point Banquet schedule

    The Georgia Walking Horse Exhibitors' Association High Point Awards Banquet will be held January 27, 2018, at the Monroe Golf and Country Club in Monroe, Georgia. Happy hour will be from 5:30-6:30, with a short business meeting to follow. Read More
  • WHTA presents Lifetime Achievement Award

    Starting in 2015, the Walking Horse Trainers’ Association Lifetime Achievement award is presented each year to the person or persons who have made a lasting impression to both the WHTA and the Walking Horse world in general. This year’s honoree certainly embody those credentials... Read More
  • Walking Horse Trainers’ Auxiliary plans exciting 47th year

    Plans for their annual Money Tree Classic, another Money Tree Classic Fall Show and election of officers brought 26 members out for the General Membership meeting of the WHT Auxiliary at the Edgemont Baptist Church in Shelbyville, Tennessee on December 1, 2017... Read More
  • Equine Obituary - Jake's Jubilee Star

    Jakes Jubilee Star, affectionately known as Rosebud, passed away on December 3, 2017. She was owned and loved by Leighanne Tibbs... Read More