(Editor’s Note: The following status update, which includes extremely detailed and important updates regarding the FAST Legal Fund as it relates to pending litigation within the walking horse industry, was written and released Wednesday April 4 by Kasey Kesselring.)
FAST continues to be actively involved in supporting legal issues that seek to make the enforcement of the HPA more effective, fair and lawful. FAST supported a lawsuit filed in 2013 that challenged APHIS’ rule requiring HIOs to impose mandatory minimum suspension penalties on those whose horse failed a DQP inspection. In February 2015, the Fifth Circuit Court of Appeals held that the USDA was not lawfully authorized to require private organizations to enforce federal law.
In 2016, FAST supported a lawsuit seeking the USDA remove from its website about 15 lists falsely identifying thousands of individuals as having violated the HPA, even though no proceeding had been filed that determined they violated the Act. The misleading information and lists were removed by the USDA, which in February 2017, announced a new policy that restricted publication of enforcement actions to identifying only parties who had been adjudicated a violator. The lawsuit was voluntarily dismissed in February 2017, and the USDA has followed its policy over the past year, including successfully defending it in two district court proceedings filed by animal advocacy organizations seeking such lists placed on the USDA’s FOIA website.
Both lawsuits were filed on behalf of private parties – Mike and Lee McGartland and SHOW --- by Karin Cagle and David Broiles, attorneys in Fort Worth, Texas. Both lawsuits were supported by FAST in the hope that, if successful, they would have industry-wide benefits. And they did. Unfortunately, another action by APHIS in 2016 created a crisis in the industry. At the 2016 Celebration, USDA VMO inspectors identified 161 horses they said they reasonably believed were sore or noncompliant with the HPA. Between late December 2016 and mid-January 2017, APHIS filed enforcement proceedings against more than 200 respondents based on these inspections.
Ms. Cagle undertook representation of some respondents, and with the voluntary assistance of Mr. Broiles, they raised several defenses that, if successful, would benefit all the respondents. Ms. Cagle filed motions to abate or dismiss the claims against her clients contending the USDA’s Administrative Law Judges were not lawfully appointed pursuant to the Appointments Clause of the Constitution. These motions were denied by the ALJs. But this issue was being litigated in the District of Columbia Circuit Court of Appeals. With support from the Celebration and SHOW, Mr. Broiles filed a brief in that court supporting the position that the SEC’s ALJs, like the USDA’s ALJs, were not lawfully appointed. The full court tied five to five, and the case was appealed to the Supreme Court in July 2017. In November, the Solicitor General of the United States changed positions, conceded the SEC’s ALJs were not constitutionally appointed, and asked the Supreme Court to decide the issue.
The Supreme Court agreed to decide the issue, and a decision will probably be issued in June 2018. Mr. Broiles, with encouragement from industry leaders, including FAST, filed a brief on behalf of SHOW supporting the position that Administrative Law Judges are not constitutionally appointed. Several other attorneys representing respondents in HPA enforcement proceedings raised this issue before the ALJs, and the result has been that the cases that are still pending are at a standstill until the Supreme Court decides the issue.
The Supreme Court case will only decide whether SEC ALJs are lawfully appointed. In denying the motions filed in USDA proceedings, the USDA ALJs took the position that they would not decide whether they were legally appointed, because only an Article III Circuit Court could decide the issue. To get this issue before a court, the respondent would first have to try the case before a USDA ALJ and lose. Then the ALJ’s decision would have to be appealed to the Judicial Officer, and he would have to affirm the ALJ’s decision. Only then could the issue be appealed to a court. All of this could take years and be very expensive.
An alternative arose when eight respondents had default orders entered against them because their answers were filed a few days late. They had raised the issue about the appointment of the ALJ, along with the contention that disqualifications could not be assessed for first offenses. They contacted Ms. Cagle, who agreed to represent them on appeals to the Judicial Officer. In the appeals, Ms. Cagle challenged the appointments of the ALJs and the Judicial Officer as violations of the Constitution. The Celebration supported Mr. Broiles’ research on the legality of the Judicial Officer’s appointment and Ms. Cagle included his arguments in her briefs.
The appeals also raised the issue whether disqualification penalties could be assessed for first offences. Ms. Cagle also contended that the USDA’s procedures denied the respondents due process and basic fairness.
The Judicial Officer ruled against five of the respondents and said a court would have to decide whether the USDA ALJs were lawfully appointed, though he did decide his appointment was lawful. Thus, the opportunity to raise these issue on appeal was available. Ms. Cagle’s five clients agreed she should appeal and will bear the cost of her representation. Mr. Broiles agreed to represent the five clients, but they would not be obligated to pay him.
The five appeals were filed in the Circuit Court of Appeals for the District of Columbia. That court was selected because anyone who tries an HPA case and loses can appeal to that court, and any favorable precedents arising from these five appeals will thus benefit everyone. The appeals are now held in abeyance until the Supreme Court decides the case before it. When they resume, the court will have to address whether USDA ALJs and the Judicial Officer are lawfully appointed, whether the HPA alloys disqualification penalties for first offenses, whether the USDA’s practices and procedures violate due process of law, and whether the USDA’s methods of imposing penalties violate both the Horse Protection Act and the Administrative Procedures Act.
These are very important issues with industry-wide implications and benefits if the appeals are successful. The decisions by the Court of Appeals will directly affect the five cases on appeal, 84 HPA enforcement cases still pending before the USDA’s ALJs arising from the 2016 Celebration, plus dozens of other pending cases arising from other events. FAST’s hope is that the decisions will make for more efficient and fair enforcement of the HPA in the future, punishing those who are lawfully and fairly determined to have violated the HPA.
To bring these issues before the court, FAST agreed to cover Mr. Broiles’ expenses for the Supreme Court brief and the appeals, with some fee for his time given the industry wide ramifications to be determined in these cases. Recently, it was brought to my attention that that there was some concern within the industry that FAST was providing financial support for individual cases with an overtone of disagreement for having agreed to do so. The clients in the cases above serve in the same capacity as SHOW, FAST or the McGartlands have in prior legal initiatives. We often must have clients with “standing” on specific legal issues in a specific court to be able to seek a court decision that will provide for industry wide outcomes. Those clients are still paying their own legal fees to Ms. Cagle to represent them in their specific cases before the USDA. The FAST Board of Directors voted to support this initiative for Mr. Broiles’ fees, which were projected to be less than $17,000.00 for both the brief to the Supreme Court and the legal work to seize that the opportunity the industry had before the circuit court in these five cases.
Having had to fight my own legal battles with the USDA, I am sensitive to the stress induced by having to produce the funds to seek legal representation in the near 200 cases filed by APHIS; however, we cannot, as an industry, allow this to serve as a catalyst for implosion. Instead, we need to remain focused on the wider implications of the work our consulting attorneys have done and will continue to do to serve the interests of the industry. To allow our personal stressors, however raw and real they may be, to manifest itself in distrust of FAST, our industry leaders or our consulting attorneys, only serves to diminish the industry effort. We must remain focused on the bigger picture, as we have been, to realize the justice we have been seeking in creating a balanced inspection approach for our show horse. Sadly, the only real relief we have experienced has been in the measurable and steadfast journey through the court system. It is time consuming and costly, but I have little doubt that our show horse exists today because of that work. Our industry has long been plagued by divisiveness and infighting in times of stress; this has often led to reactions mirroring that of the dog that eats her own pups. Outside organizations who have long opposed our show horse count on, encourage and seize the opportunities we give them to capitalize on this industry weakness, and it has served them well to bring us to our knees. The industry leaders who have been steadfastly working to improve our standing with APHIS, including myself, have all at one time or another been a target of those organizations working to eliminate our show horse; there has been no immunity for anyone. Sadly, it is at these times that we most often see this demonstrative petulance that cause our industry leaders and organizations working vigorously on behalf of the whole industry to begin questioning their perseverance to an industry that sometimes has little desire to cooperate to achieve beneficial goals. We cannot afford to allow that to happen when we are on the threshold of achieving some long term and sustainable conditions.
As a means of removing any optical allusions that FAST is supporting individuals in their cases, FAST will not provide funding from the legal fund for Mr. Broiles’ work; instead, an industry donor who prefers to remain anonymous has written a check to FAST to cover the entirety of Mr. Broiles’ fees. Mr. Broiles has already returned to FAST the $3,559.13 he was issued for 2017 expenses.
It is my great hope that this resolves, definitively, any concerns regarding the funding of this recent legal initiative and though I stand firm in the decision of the FAST Board of Directors to support this legal initiative, I am also grateful for the donor who stepped forward to provide the funding to eliminate any unwanted rhetoric that may only serve to impede our progress. As we continue to move forward, let us be mindful of the hard work and sacrifices we have all made, each and everyone one of you, to assure that our show horse continues to thrive for generations to come.
Sincerely,
Dr. Kasey C. Kesselring, President
FAST