SHOW, Inc et al v. United States Department of Agriculture
Filing
20
MEMORANDUM OPINION REGARDING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER: Plaintiffs' motion for a TRO is DENIED. (Ordered by Judge Terry R Means on 7/10/2012) (dnw)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
SHOW, INC., et al.
VS.
UNITED STATES DEPARTMENT
OF AGRICULTURE
§
§
§
§
§
§
CIVIL ACTION NO. 4:12-CV-429-Y
MEMORANDUM OPINION REGARDING
PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
Before the Court is the motion for a temporary restraining
order (“TRO”) (doc. 1) filed by plaintiffs SHOW, Inc. (“SHOW”);
Contender Farms, LLP (“Contender Farms”); and Mike McGartland.
By
the motion, Plaintiffs seek to enjoin the Animal and Plant Health
Inspection Service (“APHIS”), an agency of the United States
Department of Agriculture (“USDA”), from adopting and implementing
a new rule, 9 C.F.R. § 11.25, effective July 9, 2012.
Plaintiffs
contend that § 11.25 violates the Horse Protection Act (“HPA”), 15
U.S.C.A. §§ 1821-1831 (West 2012); the Administrative Procedures
Act (“APA”), 5 U.S.C. § 706 (West 2012); and the United States
Constitution.
As the Court announced in its July 6, 2012 Order
Denying Motion for Temporary Restraining Order and Accelerating
Trial on the Merits (doc. 17), the Court has determined that
Plaintiffs’ TRO motion should be denied.
I.
Background
In 1970, Congress passed the HPA to eliminate and prevent the
“soring” of show horses.1
Soring--a practice that Congress has
found to be cruel and inhumane--involves harming the legs of a
horse so that it will walk with an exaggerated gait.
A superior
gait is a desired characteristic in a show horse because it helps
the horse to win competitions.
The HPA authorizes the USDA to designate persons to inspect
horse shows and exhibitions for evidence of soring.
U.S.C.A. § 1823(e).
See 15
USDA inspectors known as veterinary medical
officers (“VMOs”) have been designated to fill this role.
An
individual who is found to have violated the HPA is subject to
criminal and civil liability. See id. § 1825(a)-(b). In addition,
the USDA is authorized to disqualify such an individual from
participating in future horse shows and certain other events for at
least one year for a first-time violation and five years for
subsequent violations.
See id. § 1825(c).
The HPA sets out
procedures to govern these types of disqualification actions.
See
id. § 1825(c)-(d).
In addition to providing for direct enforcement of the HPA by
the USDA, Congress contemplated a method of private enforcement.
As a general matter, under the HPA, the USDA “is authorized to
issue such rules and regulations as he deems necessary to carry out
the provisions of [the HPA].”
Id. § 1828.
1
Congress amended the HPA in 1976.
F.2d 1483, 1488 (9th Cir. 1984).
2
More particularly, the
See Stamper v. Sec’y of Agric., 722
HPA requires the USDA to promulgate regulations concerning the
appointment “of persons qualified to detect and diagnose a horse
which is sore or to otherwise inspect horses” and the manner of
such inspections.
Id. § 1823(c).
called
qualified
designated
These private inspectors are
persons
(“DQPs”),
and
they
are
certified and trained by private entities known as horse-industry
organizations (“HIOs”).
See 9 C.F.R. §§ 11.1, 11.7, 11.21.
Under the HPA, when the manager of a horse show affiliates
with an HIO and hires DQPs to detect soring among the show’s
participants, the manager is not liable for any participants' being
later found to have engaged in soring unless the manager received
notice or gained knowledge that soring occurred.
§ 1824(5), (6).
See 15 U.S.C.A.
On the other hand, when a manager does not utilize
DQPs, he is strictly liable if any of the show’s participants are
found to have engaged in soring.
See id. § 1824(3), (4).
HIOs are
authorized to impose penalties against entrants whose horses are
identified as sore.
The USDA also may initiate an enforcement
action against any person whose horse has been identified as sore
by a DQP.
Prior to the effective date of the new § 11.25, an HIO
determined what penalty to assess for a particular violation by
consulting the penalty matrix set out in that HIO’s rulebook.
Similarly, an HIO determined its own procedure for administering
appeals.
But with the promulgation of § 11.25, a number of
3
requirements
concerning
HIO-affiliated
events
have
changed,
affecting HIOs as well as horse-show participants and sellers,
among others.
In light of this, Plaintiffs filed the instant
lawsuit, along with a motion for a TRO, seeking to enjoin the USDA
from adopting and implementing § 11.25.2
II.
Analysis
A TRO is an extraordinary form of relief and should only be
granted upon the showing of four prerequisites:
(i) a substantial likelihood of success on the merits;
(ii) a substantial threat of immediate and irreparable
harm for which the movant has no adequate remedy at law;
(iii) that greater injury will result from denying the
temporary restraining order than from its being granted;
and (iv) that a temporary restraining order will not
disserve the public interest.
Gonannies, Inc. v. Goupair.Com, Inc., 464 F. Supp. 2d 603, 607
(N.D. Tex. 2006) (Lindsay, J.) (citing Clark v. Prichard, 812 F.2d
991, 993 (5th Cir. 1987)). The third and fourth factors merge when
the government is the party against whom the TRO is sought.
See
Nken v. Holder, 556 U.S. 418, 435 (2009); Minard Run Oil Co. v.
U.S. Forest Serv., 670 F.3d 236, 256 (3d Cir. 2011).
A.
Likelihood of Success on the Merits
The newly promulgated § 11.25, in relevant part, identifies
several violations of the HPA, provides that such violations shall
2
SHOW is an HIO. Contender Farms is a limited-liability partnership that
owns trains, shows, and sells show horses. And McGartland an owner and general
partner of Contender Farms. McGartland owns and exhibits show horses, hires
trainers, and serves as a volunteer prosecutor for SHOW.
4
result in suspension, and prescribes the minimum suspensions and
penalties that must be assessed against those who commit such
violations.
See 9 C.F.R. § 11.25(b), (c).
More importantly, at
least for purposes of this case, it requires each HIO to enforce
and
include
in
its
rulebook
suspensions and penalties.
the
aforementioned
Id. § 11.25(a).
mandatory
Each HIO must also
“provide a process in its rulebook for alleged violators to appeal
penalties,”
which
“must
be
approved
by
[the
USDA].”
Id.
§
11.25(e).
Plaintiffs
advance
several
arguments
challenging
the
lawfulness of these provisions under the HPA, APA, and U.S.
Constitution.
After an initial review of those arguments, it is
the Court’s position that, while Plaintiffs’ have stated claims
that are colorable, they have not established that their likelihood
of success on the merits is substantial.
Clark, 812 F.2d at 993.
Under the HPA, the secretary of the USDA “is authorized to
issue such rules and regulations as he deems necessary to carry out
the provisions of [the HPA].”
15 U.S.C.A. § 1828.
rather broad grant of rule-making authority.
That is a
And while the Court
is committed to exploring further the merits of Plaintiffs’ claims,
the Court is not initially persuaded that Plaintiffs’ claims under
the HPA are substantially likely to prove meritorious, given the
broad grant of rule-making authority conferred upon the USDA by §
1828.
5
And given the Court’s initial position on Plaintiffs’ HPA
claims, the Court likewise concludes that Plaintiffs have not
demonstrated a substantial likelihood of success on the merits of
their APA claims.
Under the APA, a court must “hold unlawful and
set aside” a regulation promulgated by an agency that is (A)
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law”; (B) “contrary to constitutional right, power,
privilege, or immunity”; (C) “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right”; or (D)
“without observance of procedure required by law.”
706(2)(A)-(D).
5 U.S.C.A. §
At this point, the Court is not persuaded that §
11.25 falls into one of these categories.
Lastly, the Court fails to see obvious merit in Plaintiffs’
contention that § 11.25 offends the U.S. Constitution. Plaintiffs,
in the Court’s view, have not established a substantial likelihood
of success on their claim that § 11.25’s HIO-enforcement scheme
invites an improper exercise of Article III judicial power or
reflects an impermissible encroachment by the executive branch on
Congress’s
Article
I
power
to
create
inferior
tribunals.
Accordingly, the Court concludes that the likelihood-of-success
factor weighs against the granting of a TRO.
B.
Irreparable Harm
Plaintiffs contend that “SHOW will be unable to supply DQP’s
to its affiliated shows, whose management will thus be subject to
6
strict liability under the act, loss of a right under the HPA.”
(Pls.’ Reply Br. 19.)
In addition, Plaintiffs contend that SHOW
will be decertified as an HIO.
“are
losses
that
cannot
be
“These,” according to Plaintiffs,
recouped.”
(Id.)
In
addition,
Plaintiffs contend that Contender Farms and McGartland “will be
denied HPA statutory due process rights,” as well as constitutional
due process, and will suffer “wrongful suspensions” and “extreme
financial risk.”
(Id. at 20.)
Aside from the risk to SHOW of decertification, none of these
risks appears to be so imminent that it will injure Plaintiffs
before the Court has had a chance to resolve the merits of
Plaintiffs’ challenges to § 11.25.
And as far as decertificaiton
goes, the Court fails to see why SHOW, in the event of a successful
outcome
in
the
instant
case,
cannot
simply
re-apply
for
certification and seek recovery for any financial losses that it
incurred as a result of decertification.
In view of this, the
Court concludes that the irreparable-harm factor counsels against
granting
a
TRO
and
should
be
revisited
in
connection
with
Plaintiffs’ request for a preliminary injunction.
C.
Public Interest and Balance of Hardships
In the Court’s view, it is in the best interests of the
parties and the public that the Court reach a judicious ruling on
the lawfulness of § 11.25 before granting the extraordinary remedy
of a TRO.
Most of Plaintiffs’ public-interest concerns can be
7
satisfied, if proven successful, by a judgment at trial.
Given
Plaintiffs’ insistence on the importance of the separation-ofpowers doctrine, they surely understand the Court’s hesitation to
halt the executive branch from acting purportedly pursuant to a
congressional delegation of authority.
III. Conclusion
Based on the foregoing, Plaintiffs’ motion for a TRO is
DENIED.
SIGNED July 10, 2012.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/dc
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?