Petitioner appeals the decision of the Secretary of the United States Department of Agriculture ("Secretary") finding that he violated 15 U.S.C. Sec. 1824(2)(D) on two separate occasions by allowing horses he owned to be exhibited and entered in a horse show while the horses were "sore." Because we find that petitioner actually attempted to prevent, rather than allow, the exhibition or entry of his horses while they were sore, we reverse.

Before addressing the circumstances surrounding petitioner's violations, a discussion of the relevant statutory framework is necessary to bring the issues involved in this appeal into sharper focus.

The Horse Protection Act ("Act") prohibits:

The (A) showing or exhibiting, in any horse show or horse exhibition, of any horse which is sore, (B) entering for the purpose of showing or exhibiting in any horse show or horse exhibition, any horse which is sore, (C) selling, auctioning, or offering for sale, in any horse sale or auction, any horse which is sore, and (D) allowing any activity described in clause (A), (B), or (C) respecting a horse which is sore by the owner of such horse.

The Act defines "sore" in the following manner:

(3) The term "sore" when used to describe a horse means that--

(A) an irritating or blistering agent has been applied, internally or externally, by a person to any limb of a horse,

(B) any burn, cut, or laceration has been inflicted by a person on any limb of a horse,

(C) any tack, nail, screw, or chemical agent has been injected by a person into or used by a person on any limb of a horse, or

(D) any other substance or device has been used by a person on any limb of a horse or a person has engaged in a practice involving a horse,

and, as a result of such application, infliction, injection, use, or practice, such horse suffers, or can reasonably be expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving, except that such term does not include such an application, infliction, injection, use, or practice in connection with the therapeutic treatment of a horse by or under the supervision of a person licensed to practice veterinary medicine in the State in which such treatment was given.

Id. Sec. 1821(3). A horse is presumed to be sore "if it manifests abnormal sensitivity or inflammation in both of its forelimbs or both of its hindlimbs." Id. Sec. 1825(d)(5).

Individuals found to have violated Sec. 1824 are subject to civil and criminal penalties. In the case of the former, 15 U.S.C. Sec. 1825(b)(1) provides in pertinent part that "[a]ny person who violates section 1824 of this title shall be liable to the United States for a civil penalty of not more than $2,000 for each violation."

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.

Id. Sec. 1825(b)(1).

The Secretary may also disqualify a person required to pay such a fine "from showing or exhibiting any horse ... for a period of not less than one year for the first violation and not less than five years for any subsequent violation." Id. Sec. 1825(c).

In October 1987, "Handshaker's Carbon," a Tennessee Walking Horse owned by Calvin Baird, was entered in the Ohio Celebration, a horse show in Columbus, Ohio. This was by no means Baird's first foray into the world of horse shows. Baird had owned over 50 such horses and had entered some of these horses in shows as often as, if not more than, 100 times per year.

The task of training Handshaker's Carbon for the Ohio Celebration belonged to Charles Roach. Prior to Handshaker's Carbon's performance, Roach worked the horse with eight ounce chains for "about 15, 20 minutes to see that he was ready, to prepare him for the horse show." Handshaker's Carbon subsequently underwent and passed a pre-show inspection conducted by the show's Designated Qualified Person ("DQP").2 Following this inspection, Roach put the horse through an additional workout: "I took the horse about 20 feet away, 30 feet away from the inspection area ... and grazed the horse as normal, and dropped a six ounce chain on, [rode] him just maybe 40, 60 yards, and I put the rider on, and they rode him about 40, 60 yards."

After Handshaker's Carbon's performance--which was enough to earn it first place honors in its class--the horse was examined by experienced USDA veterinarians, John R. Clifford and Clement Dussault. As a result of their examinations, both Clifford and Dussault concluded that Handshaker's Carbon was "sore" within the meaning of the Act. They documented their findings in a Summary of Alleged Violations ("SAV") form and in affidavits. In his affidavit, Clifford noted: "I found the horse to be sore in the pocket on the flexor surface of the pastern of both front feet. Upon digital pressure in the location described above this horse would try to pull [its] foot away." The SAV form was given to a USDA investigator, Allen Christian, who then interviewed Roach. Roach informed Christian that Baird not only owned the horse, but also had entered it in the show.

In April 1990, another of Baird's horses, "Cabbage Row Joe," was entered in the Kiwanis Club Walking Horse Show ("Kiwanis Club show") in Murfreesboro, Tennessee. Unlike Handshaker's Carbon, Cabbage Row Joe, who was trained by David Brown, did not even make it past the DQP's examination. As had been the case with Handshaker's Carbon, two experienced USDA veterinarians, Allen M. Knowles and Tyler Riggins, conducted independent examinations of Cabbage Row Joe. These examinations confirmed what the DQP had already determined; namely, that Cabbage Row Joe was sore. Knowles and Riggins completed a SAV form and also signed affidavits attesting to their findings.

Knowles' affidavit, which was signed two days after the examination, stated:

I approached the left side of the horse and picked up the left front foot. I found a moderate pain response on the anterior pastern. The horse tried to withdraw his foot and tightened his abdominal muscles when the painful area was palpated. I moved to the right foot and found an extreme pain response on the anterior pastern. The horse tried to withdraw his foot, tightened his abdominal muscles, and shifted his weight to his rear feet when the painful area was palpated.

I then asked Dr. Riggins to examine the horse while I watched. The horse showed excessive movement of the forelimbs along with tightening of the abdominal muscles and shifting of weight to the rear feet when the painful areas were palpated.

I dismissed the horse and we watched his way-of-going as he was lead away. The horse was somewhat reluctant to lead, but it was not pronounced.

We found this horse sore as defined by the Horse Protection Act. I informed Mr. Brown of our findings. Information was taken from Mr. Brown by Jimmy Odle and recorded along with our findings on form 19-7.

In my professional opinion the pain exhibited by this horse was caused by a combination of caustic chemicals and/or action devices.

In his affidavit, which he signed 16 days after examining Cabbage Row Joe, Riggins observed:

I observed DQP Bob Flynn examine [Cabbage Row Joe]. Mr. Flynn got a pain response in both front feet when pressure was applied to the pastern areas. He turned the horse down and would not allow it to show. Immediately Dr. Knowles checked the horse and the horse reacted painfully to his examination. The horse exhibited a painful response when Dr. Knowles palpated the pastern areas of both front feet.

When Dr. Knowles had finished his examination I examined the horse. I first palpated the posterior pastern of the left front foot. The horse did not exhibit any pain. Then I applied pressure to the anterior pastern of the same foot, I observed a moderate pain reflex. The horse would jerk its foot.

Then I palpated the posterior pastern of the right front foot and again did not observe any painful reaction. I palpated the anterior pastern of the same foot and got an extreme pain reaction by the horse jerking the foot, tightening its abdominal muscles and raising of the head.

Dr. Knowles informed the trainer, Mr. David Brown, that the horse met the criteria of a sore horse and that an alleged violation case would be prepared.

In my professional opinion the soring of the horse's feet was caused by a caustic chemical or mechanical device or a combination of the two.

In January 1990, the Acting Administrator of the Animal and Plant Health Inspection Service ("APHIS") filed a complaint, charging Roach and Baird with violating the Act. Specifically, Roach was said to have violated 15 U.S.C. Sec. 1824(2)(A) and (B), by exhibiting and entering Handshaker's Carbon at the Ohio Celebration. Baird, it was alleged, had violated 15 U.S.C. Sec. 1824(2)(D) by allowing such exhibition and entry. Roach subsequently signed a consent decision and therefore is not a party to this appeal.

In an additional complaint filed in October 1990, APHIS again charged Baird with violating 15 U.S.C. Sec. 1824(2)(D), this time for having allowed the entry of Cabbage Row Joe at the Kiwanis Club show. This complaint also alleged that Brown had entered the horse in violation of 15 U.S.C. Sec. 1824(2)(B). Brown, like Roach, signed a consent decision.

An administrative law judge ("ALJ") held a hearing on these complaints in September 1991. In a decision issued in March 1992, the ALJ found in favor of APHIS, concluding that Baird had violated Sec. 1824(2)(D) with respect to both Handshaker's Carbon and Cabbage Row Joe.3 The ALJ imposed a civil penalty of $4,000 against Baird and disqualified him from showing or exhibiting horses for a period of one year.

Baird appealed to the USDA's Judicial Officer ("JO"), who affirmed the ALJ's decision. This appeal followed.II.

We consider Baird's assignments of error in light of the operative standard of review. "Review of the USDA's administrative decision under the Horse Protection Act is limited to determining whether the proper legal standards were employed and substantial evidence supports the decision."4 Fleming v. United States Dep't of Agric., 713 F.2d 179, 188 (6th Cir.1983).

To prove a violation of 15 U.S.C. Sec. 1824(2)(D), the government has to establish by a preponderance of evidence that (1) the person charged is the owner of the horse in question; (2) the horse was shown, exhibited, or entered in a horse show or exhibition; (3) the horse was sore at the time it was shown, exhibited, or entered; and (4) the owner allowed such showing, exhibition, or entry. As to the first three elements of the above test, we are not persuaded that, based upon the evidence, the JO reached the wrong conclusion.5 Whether Baird allowed Handshaker's Carbon and Cabbage Row Joe to be exhibited and entered while they were sore, however, presents a more difficult question.

Baird contends that he cannot be held liable for allowing the exhibition in Handshaker's Carbon's case or the entry in Cabbage Row Joe's case because he did not know that the horses were sore and because he specifically instructed Roach and Brown not to sore the horses they were training. The government, on the other hand, argues for something akin to strict liability; it maintains that Baird's knowledge of the horses' condition and the instructions he claims to have issued are immaterial for purposes of determining his liability under the Act. In short, the government urges this court to adopt the JO's reasoning and "rule that an owner violates the Act whenever he or she allows a person to enter or exhibit a sore horse in a horse show, unless the person enters or exhibits the horse without the owner's permission or acquiescence."6

Although this court has not previously considered the meaning of the term "allow" for purposes of assigning liability under 15 U.S.C. Sec. 1824(2)(D), the Eighth Circuit has addressed the matter.7 In Burton v. United States Department of Agriculture, 683 F.2d 280 (8th Cir.1982), the court was confronted with a factual scenario largely analogous to the one at bar. The owner of a walking horse, who had been found to have violated Sec. 1824(2)(D), argued on appeal that " 'allow' requires that one must know the horse was 'sore' at the time it was exhibited." Id. at 282. The government, as it does here, "urge[d] that owners be held to a strict liability standard, and that knowledge of the horse's 'soreness' is not required under 15 U.S.C. Sec. 1824(2)(D)." Id. Noting the absence of expressed congressional intent suggesting the legitimacy of the government's position, the court ruled in favor of the owner and reversed the Secretary, stating:

[W]e hold that the owner cannot be held to have "allowed" a "sore" horse to be shown when the following three factors are shown to exist: (1) there is a finding that the owner had no knowledge that the horse was in a "sore" condition, (2) there is a finding that a Designated Qualified Person examined and approved the horse before entering the ring, and (3) there was uncontradicted testimony that the owner had directed the trainer not to show a "sore" horse. All of these factors taken together are sufficient to excuse an owner from liability.

Although we agree with the conclusion that Sec. 1824(2)(D) does not establish a strict liability standard,9 we do not read the three-pronged analysis set forth in Burton as constituting a hard-and-fast test to determine whether an owner has violated the provision. Instead, Burton, in our view, provides guidance for courts reviewing cases like the one at bar, and it does so by enumerating a set of relevant factors to consider, a set that is not necessarily exhaustive.

At the heart of this controversy is, of course, the meaning of "allow." Black's Law Dictionary offers the following definition of the word:

[Allow] has no rigid or precise meaning, its import varying according to circumstances or context in connection with which it is used. It may mean to bestow or assign to any one as his right or due. To approve of, accept as true, admit, concede, adopt or fix. To grant something as a deduction or an addition; to abate or deduct; as, to allow a sum for leakage. To sanction, either directly or indirectly, as opposed to merely suffering a thing to be done; to acquiesce in; to suffer; to tolerate.

Black's Law Dictionary 76 (6th ed.1990) (citation omitted) (emphasis added).

Notwithstanding its somewhat protean character, the word "allow" surely is not broad enough to encompass the interpretation proposed by the agency. As the above definition makes clear, there are basically two ways to allow something to happen: either "directly," e.g., explicitly condoning or authorizing the conduct or act in question; or "indirectly," e.g., by failing to prevent such conduct or act--in other words, by "looking the other way" or by "burying one's head in the sand." In this sense, allowing is not tantamount to knowing. To illustrate: if a horse owner knows about the condition of his sore horse and does not attempt to prevent that horse from being entered, shown, or exhibited at a horse show, it can fairly be said that the owner "allowed" the horse to be so entered, shown, or exhibited, in violation of Sec. 1824(2)(D). The opposite, however, does not always hold true; that is, an owner who does not know that a horse he owns is sore--which horse is entered, shown, or exhibited at a horse show--may yet be found to have violated Sec. 1824(2)(D), notwithstanding his ignorance. Liability would follow in this latter instance if, for example, an owner had cultivated a training atmosphere conducive to soring, or had done nothing to dissuade the practice, knowing the tactics of his trainers in particular and/or the pervasiveness of the practice in general.

In our view, the government must, as an initial matter, make out a prima facie case of a Sec. 1824(2)(D) violation. It may do so by establishing (1) ownership; (2) showing, exhibition, or entry; and (3) soreness. If the government establishes a prima facie case, the owner may then offer evidence that he took an affirmative step in an effort to prevent the soring that occurred. Assuming the owner presents such evidence and the evidence is justifiably credited, it is up to the government then to prove that the admonitions the owner directed to his trainers concerning the soring of horses constituted merely a pretext or a self-serving ruse designed to mask what is in actuality conduct violative of Sec. 1824.10

Here, as noted above, the government did indeed establish a prima facie case. In response, Baird testified that, as a general matter, he would direct his trainers not to sore his horses and that he would take horses away from trainers he suspected of contravening his directive ("I have it definitely understood that anybody that has a horse of mine, that I do not want that horse sored, period."). Baird further testified that both Brown and Roach understood his feelings on the issue of soring. The government did not offer evidence to contradict Baird's testimony11 and, accordingly, failed to establish pretext. For this reason, the Secretary's finding that Baird violated Sec. 1824(2)(D) with respect to the exhibition of Handshaker's Carbon at the Ohio Celebration and the entry of Cabbage Row Joe at the Kiwanis Club show must be reversed.

In light of this determination, we need not consider Baird's claim that the evidence relied upon by the JO was erroneously admitted. Nor do we address Baird's assignments of error relative to the sanctions that were imposed against him.

REVERSED.