Advocating for Animals

For more than two decades, our firm has advised the Humane Society of the United States in its efforts to protect animals from torture and abuse. In 2022, a Washington, D.C.-based team of litigators achieved a victory that will help end the cruel, painful practice of horse soring.

Based on our arguments in the US Court of Appeals for the D.C. Circuit, the court held that the US Department of Agriculture (USDA) violated the Administrative Procedure Act by withdrawing a rule that would provide for more rigorous enforcement of the Horse Protection Act (HPA) — a landmark animal-cruelty law meant to eradicate the inhumane practice of horse soring, which involves inflicting pain on a horse’s limbs and forefeet to cause the horse to lift its legs higher when it steps and thereby improve its performance in walking horse shows. The rule would outlaw practices that are integral to horse soring and aim to hide evidence of it from inspectors. It would eliminate an industry inspection program that placed people with an incentive to perpetuate soring in charge of enforcement, replacing it with a network of independent, third-party inspectors licensed, trained, and overseen by the USDA.

The closely watched case, at the culmination of notice-and-comment rulemaking, presented a fundamental question of administrative procedure: when does an agency rule actually become law?

On January 11, 2017, the USDA published the full text of the 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, overhauling the agency’s prior regulations enforcing the HPA. 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.

“Our success in the D.C. Circuit is a long-overdue victory not only for the Humane Society, but also for horses subjected to unimaginable agony through soring practices.”

Roman Martinez, partner, Washington, D.C.

As a result, the agency left in place a regulatory regime that it had already acknowledged was “not adequately . . . promoting enforcement” of the HPA. The district court in this case nonetheless held that the USDA rule never was “final” and legally binding on the agency because it had not been published in the Federal Register. We argued that the agency was not free to reverse course once it had finalized and officially posted the rule for “public inspection.”

In summer 2022, 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 Horse Protection Act dates to the early 1970s, when Congress passed legislation to ban horse soring. From the beginning, underfunding and political pressure from industry insiders plagued the USDA’s enforcement of the act. We began collaborating with the Humane Society to abolish horse soring over 10 years ago — in fact, our work was instrumental in the 2017 rule that established the federal government’s “zero-tolerance” policy.

“Despite widespread outcry among veterinarians, trainers, and the public, horse soring has continued. Our success in the D.C. Circuit is a long-overdue victory not only for the Humane Society, but also for horses subjected to unimaginable agony through soring practices,” said partner Roman Martinez, who supervised the Latham team arguing the appeal.