A Washington, D.C.-based pro bono team scored a victory for the Humane Society, our longtime pro bono client, in a closely watched case in the US Court of Appeals for the D.C. Circuit concerning administrative procedure and horse soring (Humane Society of the United States, et al. v. U.S. Department of Agriculture et al., No. 20-5291).
Based on our arguments, the US Department of Agriculture (USDA) is now required to reinstate a rule providing for more rigorous enforcement of the Horse Protection Act (HPA), a landmark animal-cruelty law meant to eradicate the practice of “horse soring” (the inhumane practice of inflicting pain on a horse’s limbs and forefeet, with the aim of causing the horse to lift its legs higher when it steps).
The case presents a fundamental question of administrative procedure: When does a rule finalized by the agency actually become law? Here — at the culmination of notice-and-comment rulemaking — the USDA had formally approved a “final rule” overhauling the agency’s prior regulations enforcing the HPA. On January 11, 2017, the USDA published the full text of that signed final rule on its website and transmitted the rule to the Office of the Federal Register — where it was then officially posted for “public inspection” as a final rule. But, following the 2017 presidential transition a short time later, the USDA abruptly changed course and withdrew the document on the eve of its publication in the Federal Register.
As a result, the agency left in place a regulatory regime it had already acknowledged is “not adequately . . . promoting enforcement” of the Horse Protection Act. The district court in this case nonetheless held that the USDA rule never was “final” and legally binding on the agency. We argued that the agency was not free to reverse course once it had finalized the rule and distributed it to the public. In last Friday’s decision, the D.C. Circuit agreed, explaining: “Because a rule made available for public inspection prescribes law with legal consequences for regulated parties, the [Administrative Procedure Act] requires the agency to undertake notice and comment before repealing it.” The court also rebuked the government’s position that unpublished final rules are invalid and yet also enforceable by the agency in certain circumstances — saying that the agency’s understanding “does not comport with even the most impoverished notions of due process.”
“The D.C. Circuit decision is a long-overdue victory for Tennessee walking horses and those who have fought for robust enforcement of federal prohibitions on horse soring for many years. The 2017 Horse Protection Act Rule is a crucial step toward eradicating the terrible and widespread abuse of horses in the industry. We are gratified that the agency’s unreasoned attempt to withdraw these regulations has been firmly rebuked in a court of law,” said associate Caroline Flynn, who argued the appeal.
Latham’s engagement with the Humane Society to end the practice of horse soring goes back more than a decade and includes work that was instrumental in the USDA’s 2016-2017 rulemaking. That rule established the federal government’s “zero-tolerance” policy regarding horse soring, and was considered a major victory for animal rights activists. But due to the rule’s withdrawal in 2017 — and despite widespread outcry among veterinarians, trainers, and the general public — the practice of horse soring has continued.
In addition to Caroline, the Latham appellate team included partners Roman Martinez and Julie Hatcher and associates L. Allison Herzog and Joseph Begun. The district court trial team included Julie; retired partner Claudia O’Brien; associates Jamie Friedland and Julianne (Brauer) Osborne; and former associates Kelly Walters, Laura Glickman, Tyler Williams, and Sally Cohen. Partners Rick Bress and Dan Meron and associates Eric Konopka, Michael Clemente, Nick Rosellini, and Peter Davis served as mooters to prepare for argument. Senior paralegals Rachel Jaffe and Olga Baeza provided invaluable assistance with appellate filings.