Bradshaw v. Dept of Agriculture

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 15, 2001
• Docket: 00-60582
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 00-60582 _______________

DAVID TRACY BRADSHAW,

Petitioner,

v.

UNITED STATES DEPARTMENT OF AGRICULTURE

Respondent.

--------------------------------- On Petition for Review of an Order of the Secretary, United States Department of Agriculture 99-0008 May 14, 2001

Before, JONES, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

David Bradshaw petitions this Court for review of the

Department of Agriculture’s (DOA) final administrative decision

finding that Bradshaw entered a “sore” Tennessee walking horse in

an exhibition in violation of § 1824(2)(D) the Horse Protection

Act, 15 U.S.C. §§ 1821-1831. The HPA vests this Court with

jurisdiction over such final orders. See 15 U.S.C. 1825(b)(2).

In Young v. United States Dep't of Agriculture, we

determined that a diagnosis of “soreness” based solely on digital

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. palpation was not substantial evidence sufficient to support a

violation of the HPA. 53 F.3d 728, 731 (5th Cir. 1995). We

expressed concern in Young over the reliability of digital

palpation and noted indicia in Congressional reports that digital

palpation should not be used as the sole means to determine

whether “soring” had occurred. Id. (citing Pub. L. No. 102-341,

106 Stat. 873, 881-82 (1992); H.R.Rep. No. 617, 102d Cong., 2d

Sess. 48 (1992); S.Rep. No. 334, 102d Cong.2d Sess. 49 (1992)).

We find this case sufficiently analogous to our decision in

Young. Although counsel for the DOA attempted to distinguish

Young, counsel conceded that there was little other evidence in

the record besides digital palpation to support the finding of

“soring.” The DOA's determination was thus not supported by

substantial evidence. Accordingly, we GRANT the petition for

review and REVERSE and RENDER judgment in favor of the

petitioner.