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NEW INFORMATION Lawsuit against USDA and APHIS Concerning HPA Dismissed
Received via email April 23, 2008
United States District Court, W.D. Kentucky, Bowling Green Division - Donald HENDRICK and Concerned Citizens for True Horse Protection, Plaintiffs v. UNITED STATES DEPARTMENT OF AGRICULTURE ("USDA"), and Animal and Plant Health Inspection Service ("Aphis"), Defendants. United States - Slip Copy, 2007 WL 2900526 (W.D.Ky.)
Summary: This matter is before the Court on the motion of Defendant United States Department of Agriculture's Motion to Dismiss. The Horse Protection Act (HPA) is federal legislation which outlaws the practice of "soring" (harm to the feet or limbs of horses in order to enhance the attractiveness of a light-stepped or high-stepping gait during horse-show performances), which is a particular concern for the breed of Tennessee Walking Horses. The Plaintiffs have filed suit, requesting a declaration of rights. Plaintiffs seek to have the Court define "sore" and "scar" beyond the definitions provided in the regulations (specifically the "scar rule"). The court found, however, that any alleged or threatened injury based on the HPA or the Scar Rule has not yet occurred. Mere uncertainty about the HPA and Scar Rule alone does not create an injury in fact. The USDA's motion to dismiss was granted based on a lack of jurisdiction. Judge JOSEPH H. McKINLEY, JR., Unites States District Judge delivered the opinion of the court.
Opinion of the Court: *1 This matter is before the Court on the motion of Defendant United States Department of Agriculture's Motion to Dismiss. This matter is fully briefed and ripe for decision. Attachments to the briefs have not been considered, and this matter is considered only as a motion to dismiss, without conversion to a motion for summary judgment.
FACTS The Horse Protection Act (HPA) is federal legislation which outlaws the practice of "soring." 15 U.S.C. § 1821, et seq.FN1 Soring involves harm to the feet or limbs of horses in order to enhance the attractiveness of a light-stepped or high-stepping gait during horse-show performances. This is a particular concern for the breed of Tennessee Walking Horses. Under the HPA, horses are examined for soring prior to shows. If it is determined that a horse has been subjected to soring, the horse is excluded from the show.
FN1. The Act, 15 U.S.C. § 1821(3), defines "sore" in the following manner: (3) The term "sore" when used to describe a horse means that- (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, or (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.
Congress enacted the HPA in 1970. Since then, controversy has ensued over the interpretation and application of the HPA, and a related regulation known as the "Scar Rule" which is codified at 9 C.F.R. § 11.3. The Plaintiffs have filed suit, requesting a declaration of rights. Plaintiffs seek to have the Court define "sore" and "scar" beyond the definitions provided in the regulations. Plaintiffs assert that a case and controversy exists based on the inconsistent enforcement of the HPA and Scar Rule and the inconsistent method of inspections. In addition to providing definitions, the Plaintiffs request the Court to establish uniform policies and procedures that relate to the HPA and Scar Rule.
Discussion The USDA asserts that this case should be dismissed based on a lack of jurisdiction, a failure to state a claim upon which relief may be granted, and a failure to exhaust administrative remedies.
The Plaintiffs assert that jurisdiction exists pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq. But "[i]t is well established that the Declaratory Judgment Act ... is not an independent source of federal jurisdiction." Louisville and Nashville R. Co. v. Donovan, 713 F.2d 1243, 1245 (6th Cir.1983). "[B]efore invoking the Act, the court must have jurisdiction already." Heydon v. MediaOne of Southeast Mich., Inc., 327 F.3d 466, 470 (6th Cir.2003). The Declaratory Judgment Act, 28 U.S.C. § 2201(a), provides that federal courts "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." With the Declaratory Judgment Act, Congress created an opportunity, not a duty, to grant relief to qualifying litigants. Westfield Ins. Corp. v. Mainstream Capital Corp., 366 F.Supp.2d 519, 521 (E.D.Mich.2005) (quoting Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 969 (6th Cir.2000). "[T]he exercise of jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201(a), is not mandatory, and at times the better exercise of discretion favors abstention." Westfield Ins. Corp., 366 F.Supp.2d at 521, citing Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942).
*2 Thus, the Court must consider whether there is independent federal jurisdiction over this matter. The Plaintiff has the burden to establish jurisdiction. Courtney v. Smith, 297 F.3d 455, 459 (6th Cir.2002). For the Court to have jurisdiction, the Plaintiffs must establish that they have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Airline Prof'ls Ass'n of the Int'l Bhd. of Teamsters v. Airborne, Inc., 332 F.3d 983, 987-88 (6th Cir.2003).
While the Defendants in this case did not specifically address the matter of standing in their briefing, "federal Courts have an independent obligation to investigate and police the boundaries of their own jurisdiction." Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604, 607 (6th Cir.1998)(overruled on other grounds); S.E.C. v. Basic Energy & Affiliated Resources, Inc. 273 F.3d 657, 665 (6th Cir.2001)(the court has "an independent obligation to police [its] own jurisdiction."); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165 (11th Cir.1997); Minority Police Offiers Ass'n v. City of South Bend, 721 F.2d 197, 199 (7th Cir.1983). "The existence of subject matter jurisdiction may be raised at any time, by any party, or even sua sponte by the court itself." In re Lewis, 398 F.3d 735, 739 (6th Cir.2005).
"[C]onstitutional standing is always a threshold inquiry that a court must consider before exercising jurisdiction." In re Cannon, 277 F.3d 838, 852 (6th Cir.2002)(internal citation omitted). "[S]tanding is perhaps the most important of the jurisdictional doctrines." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)(internal citations omitted). "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498 (1975). In light of the importance that Sixth Circuit and Supreme Court precedent places upon standing, this Court would be remiss if it did not address Plaintiffs' standing in this case.
To satisfy the standards for constitutional standing, "a plaintiff must establish three elements: (1) an injury in fact that is concrete and particularized; (2) a connection between the injury and the conduct at issue-the injury must be fairly traceable to the defendant's action; and (3)[a] likelihood that the injury would be redressed by a favorable decision of the Court." Blachy v. Butcher, 221 F.3d 896, 909 (6th Cir.2000).
An injury in fact is an injury that has been sustained or is presently causing an immediate danger of injury. O'Shea v. Littleton, 414 U.S. 488, 493-94 (1974). Without evidence that an injury is "actual or imminent," the injury is only "conjectural or hypothetical" and therefore does not establish standing. Mich. Gas Co. v. Fed. Energy Regulatory Comm'n, 115 F.3d 1266, 1270 (6th Cir.1997). In this case, it is unclear what injury the Plaintiffs allege. The Plaintiffs' Complaint alleged that federal legislation and regulation in the form of the HPA and the Scar Rule are unclear and arbitrarily enforced. But the Complaint does not allege that this has caused harm, either to the Plaintiffs themselves or to anyone else. The complaint submits that there is "an actual case and controversy between the parties ... in that USDA and APHIS have acted arbitrarily, inconsistently and unfairly in the process of their inspection (pre- and post show), interpretation and enforcement of the Horse Protection Act, the Scar Rule and other implementing federal regulations." But this is the type of injury that is "conjectural or hypothetical." See Mich. Gas Co., 115 F.3d at 1270. The complaint has not alleged any instances of the inconsistencies or unfairness relating to the HPA, only generalized complaints. There is no "concrete and particularized" injury in this case. See Blachy, 221 F.3d at 909. Because the Plaintiffs lack a concrete injury, the Court cannot examine whether such an injury is fairly traceable to the defendant's action or whether an injury could be redressed by this court. Absent a showing of harm or injury in fact, the Plaintiffs have failed to establish standing.
*3 Here, any alleged or threatened injury based on the HPA or the Scar Rule has not yet occurred. The Plaintiffs have not shown that a judicial decision in this case is needed, or that any hardship will ensue if the case is not litigated at this time. It was the duty of the Plaintiffs to more completely allege that the USDA has caused harm or that it imminently will cause harm. Mere uncertainty about the HPA and Scar Rule alone does not create an injury in fact. See Airline Professionals Association, 332 F.3d at 988 (uncertainty about whether an agreement was binding did not alone create an injury in fact). In the case of Fleming v. USDA, 713 F.2d 179 (1983), the Court found that the HPA prohibitions on soring were not unconstitutionally vague, and further, there was not a denial of due process in the alleged lack of uniformity in determining soreness. Id. Thus, the Sixth Circuit has previously determined that the definitions of soring provided in the HPA are sufficient. Id. The Plaintiffs' bare assertions of a lack of clarity in the law do not demonstrate an injury, particularly when the Sixth Circuit has previously pronounced the legislation's definitions as sufficient. In this case, the Plaintiffs lack standing and this Court lacks jurisdiction.
In the alternative, even if the Plaintiffs were to establish standing, this court would not find it appropriate to exercise jurisdiction. See Brillhart v. Excess Ins. Co., 316 U.S. at 494 (the exercise of jurisdiction is not mandatory and the court may use its discretion). Section (b) of the HPA provides for judicial review in the circuit court after a person has been cited for violating the HPA. 15 U.S.C. § 1825(b). The Sixth Circuit has previously found the language and implementation of the HPA to be constitutional. Fleming, 713 F.2d 179; see also Gray v. Madigan, 796 F.Supp. 1093 (M.D.Tenn.1992). In light of Fleming and the statutorily prescribed method of review contained in the HPA, this Court does not find this to be an appropriate situation in which to exercise its discretion under the Declaratory Judgment Act. See Scottsdale Ins., 211 F.3d at 969 (the Declaratory Judgment Act gives the court "an opportunity, rather than a duty" to exercise jurisdiction). The Court does not find that the alleged lack of clarity in the HPA will result in irreparable harm, and thus, this Court will not exercise jurisdiction. Conclusion
For all the foregoing reasons, it is hereby ordered that USDA's Motion to Dismiss is GRANTED based on a lack of jurisdiction [DN 16].
W.D.Ky.,2007.
NEW INFORMATION HSUS OFFERS $10,000 REWARD FOR INFORMATION ABOUT SORING -
NEW INFORMATION HPA SUSPENSION LIST NOW ONLINE - CLICK HERE FOR MORE INFORMATION
NWHA Tracking Registry Prevails
Click here for the press release from NWHA’s website TWHBEA had instigated a lawsuit against NWHA, stating that NWHA was infringing on TWHBEA’s copyright by asking for pedigree information on horses registered with the TWHBEA. TWHBEA claimed trademark infringement, unfair competition, trademark dilution, and intentional interference with business relations, and copyright infringement. Of the five claims, the court ruled in favor of NWHA of the first four claims. The court ruled in favor of TWHBEA on the copyright infringement in that NWHA asked for copies of TWHBEA paperwork on the horse to prove its pedigree. However, The court ruled that pedigree information is property of the owner, now of TWHBEA. Therefore, the pedigree information can still be provided to NWHA by the owner if the owner so chooses to do so. For reference information, I have included the press release from the TWHBEA website. It is important to note that they have not provided the level of detail that NWHA provided in their press release. They only provide information on the single ruling in their favor. Click here for the press release.
Free the Tennessee Walking Horse—The truth of the struggle within TWHBEA
Received via email September 13, 2007
Please note: My apologies to whomever wrote this article, as I don’t know who wrote it or where it was originally posted. I am posting it here because it is an excellent narrative as to what’s going on within TWHBEA and the TWH industry in general. If you are a member of TWHBEA, PLEASE be sure to vote for the right people and save the sound TWH!
Free The Tennessee Walking Horse
Basically, some time ago, TWHBEA voted to not renew the contract with the NHSC, and that's what really started the ball moving for change. That move was made because the NHSC has for decades been nothing more than a tool to protect the guilty and the status quo. Before going on I want to repeat that I am not anti-padded. However, I am vehemently anti-sore, and although that makes me a tree-hugger to some, I do not equate sore and padded. That said, prior to about two years ago, virtually the entire industry was controlled for decades by the padded horse "old guard". The rest of the breed was treated like they didn't really count other than as an outlet for their culls. You don't have to go very far to find that that attitude still prevails with a lot of the old guard in the industry.
Free The Breeders (http://www.freethebreeders.org) represents that old guard in the industry. Like a lot of situations, the old guard is actually a relatively small clique within the breed, being major owners and trainers, that controlled the industry for their own purposes and benefit. Their primary purpose was to promote the padded horse and use their definition of a "unified industry" to fight in every way they could the USDA and anyone else who wanted to clean up the industry. Back at one time, back when the NHSC was virtually the only HIO, they even extracted $1/entry of every entry at every show that went into a fund that was used to defend those who had federal cases pending against them, brought by the USDA. If you think their mind-set has really changed from those days, think again.
As mentioned, they controlled the industry for their own benefit, and did so largely at everyone else's expense. How? First, they have done everything they could to keep the breed the way they wanted it, which at the same time kept it on a head-on collision course with the USDA and public opinion. You saw that happen in 2006 at the National Celebration. How has this cost the breed? First, it is a combination of the ongoing but more recently prominent public "black eye" the old guard has given the breed plus the fact that nobody knows for sure how long the battle will continue for the soul of the breed and the industry that is largely responsible for the TWH market tanking. Yes, horse values are down in general right now, but not nearly to the extent that they are in this breed. All of us are paying that price; not just in terms of the current market, but from the fact that the negative image this breed already had was magnified nationally by the publicity it received last year, and it will take years to overcome that damage even if we can manage to truly get the industry cleaned up. It is also hard to bring new people into the breed and showing with all of this mess going on. However, the old guard really couldn't care less about any of that except in one sense, and that is that it has put a spotlight on what they are doing with their horses, and they would like that spotlight to go away for obvious reasons.
Some visionary folks within TWHBEA - some of them having even been part of the old guard - were smart enough to see where things were headed, and realized the necessity of change. One of the first measurable effects of that realization came when the contract with the NHSC was not renewed. It largely went unnoticed until the then existing contract actually lapsed, and then the realization began to set in with the old guard that "things, they were a changin'". For a short time there was a mad scramble, as there was a question as to whether WHOA was going throw their lot in with TWHBEA or go with the old guard. The old guard managed to get enough folks on the WHOA board to keep that from happening, and WHTA and WHOA struck an agreement to contract the NHSC and keep it going. Bear in mind that the old guard had already suffered a major setback in the late 90's when the KWHA, NWHA HIOs were formed along with FOSH (affiliated with HPC and then HIT), the combination of which nearly cut in half the number of inspections performed by the NHSC. However, with TWHBEA's sanctioning plan introduced, they realized that their long held stranglehold on the industry was truly in permanent jeopardy. Further, their cash cow - being the registry itself - was no longer under their control or at their disposal.
True to form, the old guard has spent the past year circling the wagons in an effort to "reunify" the industry. TWHBEA also wants to unify the industry, but there is a key difference. The old guard, represented by Free The Breeders, wants to take things back to unify the industry with things back just like they were before, or as close to it as they can get. TWHBEA wants to unify the breed by providing a structure to move the breed forward toward a better relationship with the USDA, true enforcement of the HPA rather than lip service the old guard gives it, a better image for the breed with the public and the rest of the equine world, and to truly represent all facets of the breed rather than 95% of the emphasis being on the padded horse, as it had been for decades. The old guard has been fighting all of this, tooth and toenail. They have done everything they can to discredit TWHBEA. They have withdrawn advertising in the Voice, and then complain about the lack of advertising. They complain about the DNA conversion, when Dee Dee Sale (one of the Free The Breeders co-founders) and Kathy Zeis were largely responsible for those problems by insisting on doing it their way rather than other ways that could have avoided many of those problems. They even complain about the TWHBEA office building problems, as if they weren't the ones on whose watch that building was constructed. The fact is that the current staff and majority of the executive committee are dealing with the fallout from years and years of rule by the old guard, and they are doing so with the old guard fight them every step of the way.
So, if you want more of the past with control of the industry by a relatively small number of wealthy owners and their trainers, and all of the self-serving corruption that has existed with that, then support Free The Breeders, because the past is what they are all about. In spite of what they say, they have never had any desire to represent all facets of the breed until it became politically expedient for them to do so, and that has only been since they have been out of power at TWHBEA.
However, if you want this breed to move forward into a brighter future, please visit http://freethetwh.org, and vote for the candidates they endorse as well as for all of the bylaws amendments. Many of the current leadership at TWHBEA have taken great personal risk to move the breed forward. They have put their money where their mouth is, so to speak. They truly are about all aspects of the breed, including the padded horse, but they want a public image and relationship with the USDA that is worthy of the breed, and will actually do what it takes to achieve it. They took those steps when it was not personally expedient for them to do so, but did so in the interest of the breed and in the interest of the overall membership of TWHBEA.
A couple of final thoughts concern the bylaws changes. One of the bylaws changes helps ensure continuity of the executive committee by making it somewhat rotational in nature. It has always been elected each year prior to this. It was never an issue in the past when the old guard was in power because they controlled it every year anyway. However, it is a change that makes good business and organizational sense, regardless of which side of the fence you are on. Another change involving contract terms also makes sense, as most businesses today do business on a multi-year contract basis, and it is undesirable in many instances to have the kind of uncertainty that is inherent in a one-year contract. Rest assured that the old guard never dreamt that they would ever lose power, or they would have already had these provisions in place.
Another of the amendments makes ineligible to serve as a TWHBEA director anyone who in the prior three year has served or is serving an HPA suspension of longer than 30 days. Needless to say, the old guard would be opposed to that for obvious reasons. You need to know that the candidates endorsed by Free The Breeders have a combined total of 31 HPA violations, including bilateral sore, unilateral sore, scar rule, and foreign substance violations. Is that the quality of people we want in charge of the future of this breed? We can do much better.
This has been long, but I hope the historical perspective and information helps you make a more balanced and thoughtful decision. I would strongly encourage all of you to vote for the bylaws amendments and for the candidates listed on the Free The Tennessee Walking Horse website, link above. It is a vote for a positive future for our breed.
USDA Clarifies Horse Protection Stance, June 24, 2007
USDA Clarifies Horse Protection Stance By Christy Howard Parsons Copyright Walking Horse Report 2007 Editor’s Note: The Walking Horse Report has been provided a copy of a letter from the United States Department of Agriculture to all Horse Industry Organizations. The purpose of the letter is to clarify any misconceptions about the regulatory responsibility and penalties associated with the enforcement of the Horse Protection Act. June 22, 2007 The purpose of this letter is to clarify any misconceptions about the regulatory responsibility and penalties associated with the enforcement of the Horse Protection Act (HPA). The roles and responsibilities for signatory and non signatory Horse Industry Organizations (HIOs) have not changed. However, due to some misunderstanding within the industry, I find it important to clarify the expectations of the USDA for the enforcement of penalties within the industry. When a horse is found in violation of the HPA, HIOs that are signatories to the Horse Protection Operating Plan (OP) may impose penalties as outlined in that plan, and USDA will not initiate a Federal Case against the owner, trainer and exhibitor except under very exceptional circumstances. For purposes of HPA enforcement, a horse with a scar is a sore horse. As a signatory to the OP, HIOs have voluntarily agreed to the duties and responsibilities defined in the OP. Under the OP, APHIS agrees to sub-delegate to the signatory HIOs the initial enforcement responsibility for affiliated shows, exhibitions, sales, and auction. This means the USDA has allowed the signatory HIOs to employ uniform and effective inspection procedures and to penalize conduct violative of the HPA and regulations and has decided that it will not institute enforcement under the HPA if a signatory HIO's enforcement actions satisfy the requirements of the OP and fulfill the purposes of the HPA. The USDA maintains authority to enforce the HPA when a signatory HIO fails to properly enforce violations of the HPA or apply the appropriate penalty. HIOs that are not signatories to the OP, must solely fall under the purview of the HPA and Regulations. Without the OP, the USDA maintains the primary role for the enforcement of the HPA and will initiate Federal Cases against owners, trainers and exhibitors associated with any horse found not to be in compliance with the HPA and the Regulations. This is regardless of any industry penalty imposed by the HIO.
Chester A Gipson Deputy Administrator
Full Coverage of TWHBEA Semi-Annual Meeting - Saturday, May 26, 2007 Attempts to Overthrow TWHBEA HIO Sanctioning Plan Fail - CLICK HERE FOR MORE INFORMATION |
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