McSwain Obtains Injunction

From the Walking Horse Report

Court Grants Preliminary Injunction to McSwain
Wednesday, May 25, 2016
Keith and Dan McSwain have been successful in obtaining a preliminary injunction against the USDA in their inspection of Honors.  The conclusion of the ruling handed down by United States District Judge Richard W. Story stated:

“In accordance with the foregoing, the Court DECLARES that Plaintiffs have met their burden to show a substantial likelihood of success on the merits of their claim that Defendants’ enforcement of the HPA violates the Due Process clause of the Fifth Amendment.  The Court GRANTS Plaintiffs’ Motion for Preliminary Injunction.  Defendants are hereby ENJOINED from disqualifying Plaintiffs’ horse, Honors, under the Scar Rule without providing Plaintiffs with adequate pre-deprivation process, including notice and opportunity to be heard.”

The defendants in the case are Tom Vilsack, United States Secretary of Agriculture, and the United States Department of Agriculture.

The lawsuit filed by Keith and Dan McSwain was an action under the Administrative Procedures Act and the United States Constitution against the USDA for its failure to afford due process to those affected by its deprivation of property while acting under the color of federal law, for its failure to abide by its own rules, regulations, and procedures related to the Horse Protection Act, and for acting contrary to an in excess of the authority delegated to it by Congress.

The suit seeks a declaratory judgment from the court against the USDA for its failure to provide notice and hearing, thus violating the due process clause of the Fifth Amendment.  It also seeks declaratory judgment for failure to adhere to the scar rule and procedure for detecting violations as well as a preliminary and permanent injunction.  The McSwain’s also ask the court to reverse and set aside the Honors scar rule disqualifications and a recovery of their fees.

In receiving a preliminary injunction, the McSwain’s had to demonstrate: (1) they have a substantial likelihood of success on the merits; (2) irreparable injury will be suffered absent an injunction; (3) the injury to the movant outweighs the injury the proposed injunction would cause to the opposing party; and (4) the proposed injunction would serve the public interest.

The lawsuit points out many of the items the industry has complained to the USDA about regarding the application of the scar rule.  The suit points out the change in interpretation of the scar rule without any change to the HPA or Regulations, the misapplication of the anterior and posterior definitions for scar and the highly subjective nature of the inspection.

Pathology expert Dr. Paul C. Stromberg, DVM, PhD, concluded after the 2015 Celebration that the USDA’s method for enforcing the Scar Rule “ignores other possible causes and betrays a lack of understanding of basic pathologic principles.  It’s not medically rational or scientifically defendable.  It’s just pseudoscience and poor medical practice.”

The preliminary injunction granted by Judge Story is only a first step and the suit will continue to move forward in the coming months.  The USDA has not responded at this time to the granting of the injunction.

Click here to view the complete Order.


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