53 Agric. Dec. 1219 person presenting the horse ([Gray]) and wrote down the response-"Billy Gray." Consequently, the record contains reliable, probative and substantial evidence that [Gray] entered the horse. See also Elliott, 990 F.2d at 145 (observing that "entering" a horse in a show entails paying the entry fee, registering the horse, and presenting the horse for inspection). Equally unavailing is Gray's claim as to the sufficiency of the evidence pertaining to the condition of Night Prowler at the time Hester and Rushing conducted their examination. As is evident from their affidavits, Hester and Rushing confirmed independently what the DQP had already surmised; namely, that Night Prowler was "sore" within the meaning of the Act. For his part, Gray points out that Hester and Rushing characterized the sensitivity Night Prowler manifested in its forelimbs and hindlimbs as "extreme." Only "abnormal" sensitivity, Gray hastens to add, triggers the statutory presumption of soreness. See 15 U.S.C. § 1825(d)(5). Notwithstanding Hester's and Rushing's failure to employ the magic word, we reject Gray's contention. Put simply, to contend that "extreme" sensitivity is not also "abnormal" sensitivity ignores the meaning of both words." With respect to the cause of Night Prowler's sensitivity, we conclude that here, too, substantial evidence supports the JO's decision. At the June 1991 hearing, Rushing testified: "In my professional opinion, a horse that was sore would have had some abuse, perhaps resulting from the application of changing the chains, or action devices in conjunction with chemicals or substances applied to the front legs of the horse." He added: "[T]o my knowledge, there is no other means of producing this pattern of inflammation or soreness other than soring." This testimony led the JO to conclude that Night Prowler "was sored either by the use of a caustic agent or mechanical devices. To the extent causation is, as Gray urges, an element of a § 1824(2)(B) violation, we conclude that such element has been satisfied. C. Sanctions 'Gray also asserts that the government may note prevail simply by resorting to the statutory presumption. Without implying approval of Gray's assertion, we note that neither the ALJ nor the JO relied on the presumption created by § 1825(d)(5). For instance, the ALJ stated: "Even without the presumption, the Complainant established a prima facie case that Gray violated the Act." The JO subsequently observed that "the ALJ correctly found that the evidence in the record established the horse was sore without recourse to the presumption." Next, Gray challenges the sanctions leveled against him. As noted above, Gray was required to pay a $2,000 penalty and was disqualified from showing, exhibiting, or entering horses for a period of five years. Specifically, Gray alleges that the JO failed to consider all of the factors relevant to the imposition of sanctions under the Act. These factors are set forth in 15 U.S.C. § 1825(b)(1), which provides in pertinent part: In determining the amount of such penalty, the Secretary shall take into account all factors relevant to such determination, including the nature, circumstances, extent and gravity of the prohibited conduct and, with respect to the person found to have engaged in such conduct, the degree of culpability, any history of prior offenses, ability to pay, effect on ability to continue to do business, and such other matters as justice may require. "The scope of our review in this area is limited. 'Only if the remedy chosen is unwarranted in law or is without justification in fact should a court attempt to intervene in the matter." Stamper v. Secretary of Agric., 722 F.2d 1483, 1489 (9th Cir. 1984). Notwithstanding Gray's assertion, our review of the record convinces us that the JO did, indeed, abide by the dictates of § 1825(b)(1). Initially, the Jo touched on the gravity of the violation in dispute: "The violation in this case is extremely grave since this is exactly the type of inhumane and anticompetitive conduct that Congress intended to eliminate when they implemented the Act." After taking judicial notice of a previous case in which Gray was found to have violated the Act, the JO commented on the degree 8 'Gray's prior violation occurred in 1974, two years before the Act was amended to add the disqualification provision. This, however, does not preclude the use of this prior violation to lengthen the period of Gray's disqualification. As the JO made clear: "It is well settled that crimes for which a defendant was convicted before a habitual offender statute was passed or amended may be used to invoke the increased penalties of such statute for a crime committed after the date on which it became effective." For this proposition, the JO relied in part on Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948), in which the Court, faced with a question largely analogous to the one in dispute, stated: Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive or subjects the petitioner to double jeopardy. The sentence as a fourth offender or habitual criminal is not to be viewed as either a new 53 Agric. Dec. 1219 of Gray's culpability, Gray's ability to pay the penalty, and the appropriateness of disqualification as an additional sanction. In short, the JO imposed a sanction within statutory bounds pursuant to a thorough analysis that took into account all of the relevant factors. Accordingly, we reject Gray's challenge to the sanctions imposed against him. AFFIRMED. jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one. Id. at 732, 68 S.Ct. at 1258. We feel the Court's reasoning applies with equal force in the present context. We similarly are not persuaded by Gray's claim that, because his prior violation was not for "soring," it cannot now be invoked for purposes of 15 U.S.C. § 1825(c). In this regard, we note that a period of disqualification may be assessed under this section against "any person... who paid a civil penalty assessed under subsection (b) of this section or is subject to a final order under such subsection assessing a civil penalty for any violation of any provision of this chapter or any regulation issued under this chapter..." 15 U.S.C. § 1825(c) (emphasis added). The broad language Congress employed in crafting § 1825(c) clearly suggests that Congress intended that a prior violation of 15 U.S.C. § 1824(7) could trigger the longer disqualification period. 1232 HORSE PROTECTION ACT DEPARTMENTAL DECISIONS In re: BILL YOUNG AND FLOYD SHERMAN. HPA Docket No. 91-203. Decision and Order filed August 3, 1994. Civil penalty Horse soring Horse trainer - Past recollection recorded Rebuttable presumption of soring — Ames study — Auburn study - Lameness not required. The Judicial Officer reversed the Decision by Judge Kane (ALJ), which dismissed the Complaint alleging that Respondent Young entered for the purpose of showing or exhibiting a horse while the horse was sore, and Respondent Sherman, owner of the horse, allowed such entry. The Judicial Officer assessed civil penalties of $2,000 against each Respondent, and disqualified each Respondent for 1 year, inter alia, from showing, exhibiting or entering a horse in a horse show. "Entering" a horse is a continuing process, not an event, and includes all activities required to be completed before a horse can actually be shown or exhibited. Much more than a preponderance of the evidence supports the allegations of the Complaint, which is all that is required. A horse may be found to be sore based solely upon the professional opinion of veterinarians from their palpation of the horse's pasterns. Past recollection recorded, in the form of affidavits and a summary form, made while the events were fresh in the witnesses' minds, is reliable, probative and substantial. Abnormal way of going, or gait deficit, is not required. The Ames and Auburn studies, relied on by Respondents, are outdated. The general consensus of a 1991 Atlanta meeting and the 1991 Recommended Protocol for DQP examinations are not persuasive. The amendment to the Fiscal Year 1993 budget for APHIS, prohibiting the payment of salary to any Department veterinarian who relies solely on the use of digital palpation as the only diagnostic test to determine whether or not a horse is sore, and the language in the 1994 appropriations bill conference report that digital palpation should not be used as the sole means of determining soring, are not applicable. Bilateral, reproducible pain in response to palpation, standing alone, is sufficient to be considered abnormal sensitivity and thus raise the statutory presumption of a sore horse, and to support a finding of a violation of the Act. Examinations of the private veterinarians and DQPs in this case are not as persuasive as those of the USDA veterinarians. The facts and circumstances of this case reveal no basis for an exception to the general policy of imposing the minimum 1-year disqualification order on the person who entered the sore horse, in addition to a $2,000 civil penalty. Sharlene A. Deskins, for Complainant. G. Thomas Blankenship, Indianapolis, IN, for Respondents. I. Complainant's Evidence Established a Prima Facie Case and Also a Statutory Presumption That "A Mark For Me" Was Sore When Entered.. A. Preponderance of the Evidence Is All That Is Required . . . . . B. Complainant's Past-Recollection-Recorded Evidence Is Reliable, Probative, and Substantial .. 1251 1251 C. Complainant's Palpation Evidence Established a Prima Facie Case and Also a Statutory Presumption That "A Mark For Me" Was Sore When Entered 1253 II. Respondents Failed to Rebut Complainant's Prima Facie Case or the Statutory Presumption ... A. Abnormal Way of Going, or Gait Deficit, Not Required 1267 .... 1267 B. Ames and Auburn Studies, Relied on by Respondents, Are Outdated 1268 |