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ARTICLE · 25 FEBRUARY 2021

D.C. Circuit Ducks Constitutionality Of USDA ALJ's — For Now

Duane Morris LLP
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A divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit recently decided a significant case for those animal-related businesses who are subject to regulation...

United StatesEnvironment
John M. Simpson
John M. Simpson
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A divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit recently decided a significant case for those animal-related businesses who are subject to regulation by the U.S. Department of Agriculture (USDA). Fleming v. U.S. Dep't of Agriculture, No. 17-1246, 1249 & 1250 (D.C. Cir. Feb. 16, 2021).

The case arose out of administrative enforcement actions brought by USDA against certain individuals (the petitioners in Fleming) who had allegedly violated the Horse Protection Act, 15 U.S.C. § 1821 et seq., a statute that imposes penalties on those who enter sored horses in shows or auctions. As the majority opinion (Maj. Op.) described it, "'soring' refers to the practice of injuring a horse's forelimbs so that it will quickly lift its feet as a result of the pain, inducing it to walk with a high-stepping gait considered desirable for shows and exhibitions." Maj. Op. at 3-4. Petitioners did not respond to USDA's

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