Skip to content

Lawsuit against USDA may be dismissed



        The Concerned Citizens for the True Horse Protection lawsuit against the United States Department of Agriculture, brought by Donald Hendrick and the Concerned Citizens for True Horse Protection, is in danger of being dismissed.

  The USDA filed a motion to dismiss the lawsuit for failure to state a claim. The USDA also argues that the U.S. District Court located in Western Kentucky does not have jurisdiction to hear the claim; and that there is no reason why the USDA’s current administrative review process is insufficient and relief by judicial means is necessary and that plaintiffs must exhaust administrative remedies first.
         Hendrick and the Concerned Citizens for True Horse Protection have filed their response to the motion to dismiss and a complete copy of the response can be viewed at below.

         The response argues that the Horse Protection Act and Scar Rule fail to provide equal protection and that “in recent years, the USDA and APHIS have continually acted arbitrarily, inconsistently, unfairly and in blatant contradiction to the statute itself, the implementing regulations and most importantly, the rights of those individuals subject to the statute and its regulations.”

          It also alleges that “VMOs consistently employ techniques of inspecting horses that are inconsistent and improper, not in keeping with the HPA and its regulations which have the effect of intentionally eliciting pain responses from horses causing them disqualification from shows and exhibitions.”

          The claim alleges that “as a direct result, participation in Tennessee Walking Horse shows is the lowest it has been in years. Horse shows are losing money and so are the charitable organizations that typically benefit from the show proceeds.”

          In answer to the USDA’s claims, the suit alleges that the plaintiffs have established that pursuit of the USDA’s administrative avenues would constitute “an effort of futility.”

          The Walking Horse Report will continue to monitor the progress of this lawsuit.



UNITED STATE DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION

CIVIL ACTION NO. 1:06-CV-80-M

 

DONALD HENDRICK, et al.                            PLANTIFFS
VS.     
 UNITED STATE OF AMERICA                    DEFENDANTS

 

PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO DISMISS AND MEMORANDUM IN SUPPORT THEREOF 
                                   **************************

Come the Plaintiffs, Donald Hendrick and Concerned Citizens for True Horse Protection, a not-for-profit organization, by and through counsel, and respectfully asks the Court to deny Defendant’s Motion to Dismiss.  In support of their position, Plaintiffs submit the following Response to Defendant’s motion:

 INTRODUCTION

A. BACKGROUND

This declaratory judgment action is brought on behalf of Donald Hendrick, an individual, and Concerned Citizens for True Horse Protection, a Kentucky not-for-profit
organization.  Donald Hendrick is a resident of Bowling Green, Kentucky and has been an owner, exhibitor and enthusiast of Tennessee Walking Horses for over 40 years,
including time served as Horse Show Chairman.  Concerned Citizens for True Horse Protection is a Kentucky non-profit comprised of owners, breeders, trainers and enthusiasts of the Tennessee Walking Horse, all of whom collectively who seek to promote and protect the breed.


The Tennessee Walking Horse is a light horse breed founded in middle Tennessee.  Originally bred as a utility horse, the Tennessee Walker is known for its calm, docile temperament and naturally smooth and easy gait, making it an ideal mount for riders of all ages and levels of experience and adding to its popularity as one of the world’s greatest show, trail, and pleasure horses.  Thousands of Tennessee Walkers are shown in hundreds of shows and exhibitions held each year around the world.  It has ruly become a multi-million dollar industry, but for reasons stated hereinbelow has suffered a severe decline in recent years.

Generally, Tennessee Walkers are shown and exhibited in one of two (2) classes, performance horses and “flat shod” horses.  Horses shown in pads, i.e. performance horses, are commonly shown with double nailed and triple nailed pads to add dimension of the hoof.  Pads are training devices that provide a sounder base to the hoof and change certain angles and paths in the motion of the hoof.  Pads are an integral part of the training of the performance Tennessee Walker and aid greatly in accentuating the gait of the show horse.  Flat shod horses, on the other hand, are shown without pads and allow for easier training of the breed and the natural inherited gait.

The historic Tennessee Walking Horse National Celebrations is the largest of all Tennessee Walking Horse shows and is one of if not the largest horse show in the world.
It has been described as both the Super Bowl and World Series of horse shows.  The Celebration takes place in Shelbyville, Tennessee over the course of 11 days every summer.  Each year at the Celebration nearly a quarter of a million tickets are sold to fans from more than 40 states.  The Celebration takes place at Calsonic Arena in
Shelbyville, an outdoor stadium that seats approximately 30,000 patrons. A recent economic impact study of the Celebration revealed that on an annual basis visitors at theCelebration spend approximately $38,000,000 into the local economy.  A recent account of the financial impact of the Celebration on local economies was the subject of
an article in the Times-Gazette, the daily newspaper of Shelbyville, Tennessee, a copy of which is attached hereto as Exhibit A.
 
B. HORSE PROTECTION ACT
 
In 1970, Congress passed the Horse Protection Act (“HPA), 15 U.S.C.  1821, et seq., and it was amended in 1976.  The HPA prohibits horses from showing at such events like the Celebration if they have been subjected to a practice called soring.  Be it known that soring is an inhumane practice that Plaintiffs stand firmly against.  It is
accomplished when one deliberately  tampers with a horse’s front limbs, such as administering a foreign substance or chemical, causing the horse pain when its feet touch the ground.  This causes the horse to react by lifting the feet up quickly, creating the appearance of an enhanced gait and , to the guilty party, an unfair advantage in the
show ring.

Pursuant to Congressional authorization provided under 15 U.S.C.  1828, the Secretary of the United States Department of Agriculture (“USDA”) promulgated regulations to support enforcement of the HPA, one of which is codified at 9 C.F.R. 11.3 and known universally as the “Scar Rule.”  The Scar Rule applied to all horses born after October 1, 1975.  Horses subject to this rule that do not meet the Scar Rule criteria set out in the regulation are considered “sore” for purpose of the HPA.  However, the technical and medical meaning of what constitutes a “scar” has never been established and is just one of the issues being raised in this lawsuit.

In the 1970’s when the HPA was enacted, the practice of soring and scarring was unfortunately quite prevalent within the industry.  Over time, through the education of
owners and trainers and with the enactment and implementation of the HPA, this practice has all but been eradicated.  Suffice it to say, the landscape has certainly changed from where it was 30 years ago.

The USDA has charged the Administrator of the Animal and Plant Health Inspection Service (“APHIS”), a division of  the USDA, with civil and criminal enforcement of the Horse Protection Act.  To facilitate this enforcement, APHIS has
established the Designated Qualified Person (“DQP” program.  DQPs are USDA-accredited veterinarians with equine experience who attend shows, sales and exhibits
and physically inspect each and every Tennessee Walking Horse before they are shown, sold or exhibited.

In addition to the DQPs, APHIS has additional inspection teams that attend horse shows to conduct unannounced inspections.  These teams include Veterinary Medical Officers (“VMOs”). By definition established by APHIS, VMOS are charged with evaluating the performance of DQPs, observing horses during shows and examining any horse at any time for signs of soring, Scar Rule violations or other violations of federal regulations.
 
C. RECENT DEVELOPMENTS

Centrally, at issue in this case is the fairness, enforcement, construction and application of the HPA and Scar Rule.  Quite simply, the HPA and Scar Rule fail to
provide equal protection.  The proof in this case will establish that in recent years the USDA and APHIS have continually acted arbitrarily, inconsistently, unfairly and in blatant contradiction to the statue itself, the implementing regulations and, most importantly, the rights of those individuals subject to the statue and its regulations.

The proof will establish that in the absence of a medical definition for what constitutes a “scar” pursuant to the codified Scar Rule, the USDA and APHIS, by and through its VMOs and inspection teams, have acted arbitrarily and inconsistently in the conduct of their inspections and routinely render conclusions and prosecute individuals
in an inconsistent and unfair manner based on equally inconsistent and unfair application of the rules.  In other words, medical proof will establish that a scar on a
horse’s limbs, if it existed, would take days and weeks to develop.  However, walking horse owners and trainers are consistently faced with situations where a horse passes
pre-show Scar Rule inspection one evening and fails the very same inspection the next evening without any explanation as to the manner in which the VMO arrived at his conclusions.  Plaintiffs submit that the proof in this case will establish specific instances of this conduct and has video evidence of the same.

Additionally, VMOs consistently employ techniques of inspecting horses that are inconsistent and improper, not in keeping with the HPA and its regulations and which have the effect of intentionally eliciting pain responses from horses causing them disqualification from shows and exhibitions.  Again, the proof will establish specific
instances of the same.

The USDA and APHIS have also taken it upon themselves to arbitrarily administer varying methods of inspection, often changing from one day to the next. These methods include but are not limited to digital palpation of the horses’ limbs, use of thermographic devices and gas chromatography/mass spectrometry.  Again, nowhere in the HPA is it made clear what methods are acceptable and under what parameters differing techniques and methods can be utilized.  Moreover, in choosing to prosecute criminal and /or civil proceedings against alleged violators, the USDA and APHIS have had absolutely no responsibility to date for confirming the scientific reliability of their
chosen often changing methods.

Ultimately, the effect of the unfairness and lack of equal protection afforded under the HPA and the Scar Rule has caused increased conflict between the government and those individuals in the walking horse industry.  As a direct result, participation in Tennessee Walking Horse shows is the lowest it has been in years.  Horse shows are losing money and so are the charitable organizations that typically benefit from the show proceeds.

One need only look back to the 2006 Tennessee Walking Horse National Celebration in Shelbyville to observe the extent of these problems.  On the most important night at the largest Tennessee Walking Horse Show in the world, with approximately 30,000 fans in attendance, USDA inspectors disqualified seven of 10 horses entered in the World Grand Champion class, the highest class existing.  As a result, matters became so intense that over 20 Tennessee Highway Patrol Officers had to separate the federal inspectors from the show patrons.  Ultimately, the show was canceled.  For the first time in almost 70 years there was no World Grand Champion crowned.  The story received front page headlines in The Tennessean, Nashville, Tennessee’s foremost daily newspaper. (See Attached Ex.2.).

In sum, Plaintiffs file this pre-emptive action seeking a judicial declaration of their rights and rights of those who may be subject to Horse  Protection Act in the future, in order that the Court may set the controversy to rest before it leads to repudiation of obligations, invasion of further rights and commission of additional wrongs.
 
LEGAL STANDARD

A motion to dismiss such as the one Defendant has filed tests whether the Plaintiffs have stated a claim for which the law provides relief.  Gazette v. City of Pontiac, 41 f.3d 1061, 1064 (6th Cir. 1994).  Upon a motion to dismiss for failure to state a claim, the Court must construe the complaint in a light most favorable to the Plaintiffs, accept all the factual allegations as true.  Sistrunk v. City of Stongsville, 99 F.3d 194, 197 (6th Cir. 1996), cert. denied, 520 U.S. 1251 (1997); Lawrence v. Chancery Court of Tenn., 188 F.3d 687,691 (6th Cir. 1999) ( citing Miller v. Currie, 50 F3d 373, 377 (6th Cir. 1995)). Dismissal is only warranted upon a showing that beyond a reasonable doubt Plaintiffs can prove no set of facts in support of their claim that would entitle them to relief.  Achterhof v. Selvaggio, 886 F.2d 826, 831 (6th Cir. 1989)citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

ARGUMENT

 I.  JURISDICTION IS PROPER IN THIS COURT

This Court has jurisdiction to hear Plaintiff’s claims.  This case is brought by Plaintiffs pursuant to the federal Declaratory judgment Act, 28 U.S.C. 2201, et seq. The express language of the Act provides that: In a case of actual controversy within its jurisdiction,…any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. 28
U.S.C. 2201 (a).  (emphasis supplied).

As a general rule the district courts of the United States have jurisdiction in a proper case to render a declaratory judgment. 28 U.X.C. 2201 (a).  Such jurisdiction, however, must exist either because a federal question is involved or because of diversity of citizenship.  Kennel and Lehman, 26 D.J.S. Declaratory Judgments. 116.

Plaintiff’s Complaint herein alleges jurisdiction pursuant of federal question, namely 28 U.S.C. 1331.  (See Plaintiff’s Complaint, 06/07/06, Dkt. #1). Federal
question jurisdiction exists where the suit arises under the Constitution, laws, or treaties of the United States. 28 W.S.C. 1331.  Without dispute, this case centers around federal law, namely the Horse Protection Act, 15 U.S.C. 1821, et seq.  Furthermore, 28 U.S.C. 1391(e) expressly provides that any civil action in which a defendant is an officer, employee or agency of the United States, or the United States, maybe brought in any judicial district in which the plaintiff resides. 28 U.S.C. 1391(e).

In its motion, Defendant tries to pigeonhole this case into one where Plaintiffs are purely challenging the USDA’s interpretation of its own rules.  A cursory reading of the Complaint would certainly establish otherwise.  And even if it were as simple as Defendant contends, Fed. R. Civ. P. 57 explicitly provides that “[T]he existence of
another remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.” Fed. R. Civ. P. 57. Defendant argues further that Plaintiffs can show no reason why the USDA’s current administrative review process is insufficient and declaratory relief via judicial means is necessary.  The language of Fed. R. Civ. P. 57 notwithstanding, Plaintiff submits that such an argument is immaterial to this issue.  Declaratory judgments are favored in cases when judgment will serve a useful purpose in clarifying and settling legal relationships at issue and when they will terminate and afford relief from uncertainty, insecurity and controversy giving rise to proceeding.  Bortz v. DeGolyer, 904 F. Supp. 680 (S.D. Ohio 1995). Such is precisely the basis for this litigation, and the proof in this case will even further support Plaintiff’s claims.

Congress having conferred upon federal courts the power to grant declaratory relief in such instances, the right to it should not lightly be denied.  Maryland Cas. Co. v. Faulkner, 126 F. 2d 175 (6th Cir. 1942). For these reasons, this Court’s jurisdiction is proper and Defendant’s Motion to Dismiss should be denied.

 II.    PLAINTIFFS’ COMPLAINT STATES A JUSTICIABLE CAUSE

Defendant further argues that Plaintiff’s Complaint presents no actual claim or controversy for this Court to decide under the Federal Declaratory Judgment Act.
However, Plaintiff submits that federal courts are empowered to entertain declaratory judgment actions when a party alleges facts that “show that there is a substantial
controversy, between parties having adverse legal interests, of sufficient immediacy and reality…” 28 U.S.C. 2201; Foundation for Interior Design Educ. Research v.
Savannah College of Art & Design, 244 F.3d 521, 526 (6th Cir. 2001) (citing Maryland Cas. Co. v Pacific Coal & oil Co., 3112 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941); Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 844-45 (6th Cir. 1994)). Plaintiff cannot imagine a set of circumstances more in line with this notion than the facts in the case at bar.

Challenges such as the one brought by Plaintiffs herein are routinely brought pursuant to the Declaratory Judgment Act, 28 U.S.C. 2201 (a) before a completed injury-in-fact has occurred.  Peoples Rights Organization, Inc. v. City of Columbus, 152 F.3d 522, 526 (6th Cir. 1998) (citing National Rifle Ass’n of America v. Magaw, 132 F. 3d 272, 279 (6th Cir. 1997); Pic-A-State Pa., Inc.v. Reno, 776 F.3d 1294, 1298 (3rd Cir. 1996), Cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996)). (emphasis
supplied).

When seeking declaratory relief in such an action, the plaintiff must only demonstrate actual present harm or a significant possibility of future harm to justify the relief sought.  Id. (citing Magaw, supra, at 279:Bras v. California Pub. Utilities Comm’n, 59F. 3d 869, 873 (9th Cir. 1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 800, 133 L.Ed.2d 748 (1996)).  It is likewise clear that in order for an individual to satisfy the injury-in-fact requirement he does not have to await the consummation of threatened injury to obtain preventive relief.  Rather, if the injury is certainly impending, that is sufficient.  Babbitt v. United Farm Workers Union, 442 U.S. 289,298,99 S. Ct. 2301, 60 L.Ed. 2d 895 (1979) all at p. 526.  This is all that is needed for one to satisfy the “actual
controversy” requirement of the Declaratory Judgment Act and engage judicial review of the case.  Magaw, supra.

In the instant action, the proof in the case will establish a multitude of specific instances and occurrences entitling Plaintiff’s to a declaration of legal rights. Furthermore, Plaintiff’s challenge is ripe for judicial review because of the immediacy of the hardship imposed by the HPA on them as individual owners, trainers, exhibitors and enthusiasts of the Tennessee Walking Horse.

In the midst of the status quo, compliance is coerced by the threat of unfair and unjust enforcement, and the controversy is both immediate and real as the Tennessee
Walking Horse Industry provides most of these Plaintiffs with their sole means of earning a living.  As such, these Plaintiffs are consistently being put in the untenable
position of having to choose either to comply with the statue and immediately sustain Economic hardship or refuse to comply and cause enforcement of the statute against them, which would result in severe criminal and civil penalties.

For these reasons, Plaintiffs’ Complaint is ripe for judicial review. The Declaratory Judgment Act enables the court to declare rights of  adverse parties to a lawsuit even when the suit may not have ripened to a point at which an affirmative remedy is needed.  Dayao v. Staley, 303 F. Supp. 16(S.D. Tex. 1969).

III. THERE EXISTENCE OF ANOTEHR POTENTIAL REMEDY DOES NOT
PRECLUDE PLAINTIFFS FROM A JUDGEMENT FOR DECLARATORY RELIEF

Defendant finally argues that Plaintiffs have failed to exhaust administrative remedies.  For reasons cited hereinabove, Plaintiffs have established that pursuit of the USDA’s administrative avenues, if they exist, would constitute an effort of futility. Besides, such avenues should not be made prerequisites to judicial review in this instance because the only circumstance in which such could take place could only occur in response to a federal civil or criminal complaint for violation of the HPA, at which time the alleged wrongdoer has already suffered damage in being denied an opportunity to exhibit his or her horse.

Notwithstanding the foregoing, Defendant’s argument of failure to exhaust administrative remedies cannot serve as a basis for dismissal of this action as the law stands clear that the mere existence of another adequate remedy does not preclude a judgment for declaratory relief.  Fed R. Civ. P. 57.  Such has been the holding of the Sixth Circuit Court of Appeals in Maryland Cas. Co. v. Faulkner, 126 F. 2d 175, 177 (6th Cir. 1942).  This is because the purpose behind declaratory judgment statues is to make
courts more serviceable in the settlement of controversies and afford relief from uncertainty and insecurity with respect to rights.  Continental Ins. Co. v. Riggs, 126
S.W. 2d 853 (KY.1939).

For the foregoing reasons, exhaustion of administrative remedies is notwarranted prior to Plaintiffs’ seeking the relief requested herein.  Furthermore, such cannot be used as a basis for dismissal of an action for declaratory judgment.

 CONCLUSION

For all of the foregoing reasons, the Plaintiffs, Donald Hendrick and concernedCitizens for True Horse Protection, by and through counsel, respectfully move the Court to deny Defendant’s motion to dismiss.

This the 3rd day of May, 2007


                        Respectfully submitted,

 

                        BRODERICK & ASSOCIATES

                        921 College Street – Phoenix Place

                        P.O. Box 3100
                        Bowling Green, KY 42102-3100
                        Telephone: (270) 782-6700

                        Facsimile:  (270) 782-3110

                         /s/ David F. Broderick

                                         CERTIFICATE OF SERVICE

I hereby certify that on May 3, 2007, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF System, which will send a notice of electronic
Filing to the following.

 Hon. Brady Miller, Asst. United States Attorney

                      /s/ David F. Broderick

 
1. www.twbea.com – Official website of the Tennessee Walking Horse Breeders’ and Exhibitors’ Association.

2. www.twhnc.com – Official website of the Tennessee Walking Horse National Celebration.
 

 

More Stories

  • Supreme Court Decision Holds ALJs Must Be Appointed

    The United States Supreme Court has ruled that Administrative Law Judges must be appointed by the department head and not how they are currently retained by the agency they represent.  The case, Lucia vs. the Securities and Exchange Commission, does not deal with administrative law judges in the USDA, however the ruling could have a major impact on the enforcement scheme currently utilized by the USDA in Horse Protection Act cases. Read More
  • Obituary – Sam Hartsell

    Sam “Shot” Hartsell, age 74, of Newport, passed away Saturday, June 9, 2018, in Knoxville. He was preceded in death by his wife, Nan Hartsell and parents, Floyd and Viola McMahan Hartsell... Read More
  • WHOA announces International judging panel

    The Walking Horse Owners' is pleased to announce the three judges selected by current WHOA members. Charlie Brown, Shelli MeHaffey and Lonnie Messick will officiate the 40th Annual International Pleasure & Colt Championship.

    Read More
  • Savannah Lions Club adds classes

    The 52nd Annual Savannah Lions Club Show, scheduled for June 23 at 6:30 pm, has added two classes to their original schedule... Read More
  • Scrivner selected to judge Mid-South

    The Mid-South Walking Horse Association Show, scheduled for July 14, has selected Dickie Scrivner of Murfreesboro, Tennessee to mark the cards for this year's event. The show will be held at Pugh Bourne Park in Jackson, Tennessee.  Read More
  • Equine Obituary - Gen’s Armed & Dangerous

    The Report has recently learned of the passing of Gen’s Armed and Dangerous. The beautiful stallion was the 1994 Tennessee Walking Horse World Grand Champion. Read More
  • Ohio Valley adds class

    Ohio Valley Walking Horse Association show, scheduled for June 23 in Stanford, Kentucky, has added a 4 and Under Trail Pleasure to their show.  Read More
  • Walking For Hope Show updates

    The Walking For Hope show, scheduled for June 16, has selected Chris Zahnd to judge this year’s event. Originally scheduled to start at 4:00, the show will start at 5:00 pm. Read More
  • WHOA Versatility revises class schedule

    The Walking Horse Owners Association has added 5 classes to its June 16 show scheduled at Tennessee Tech, Hyder-Burk Facility in Cookeville, TN. The show starts at 10 am and is a casual dress show (boots, long pants, shirts with a collar) and "Youth 11 and Under" are required to wear a safety helmet. Read More
  • Putnam Co. Fair selects judge

    The Putnam County Fair and Upper Cumberland Walking Horse Association are pleased to announce that Newton Parks of Murfreesboro, Tennessee will judge this year’s event... Read More