Mary Cummins Animal Advocates Los Angeles California Wildlife Rehabilitation Real Estate

Monday, February 13, 2017

Lawsuit behind the USDA deleting inspection and permit reports - Contender Farms, Show inc, Lee McGartland, horse soring

USDA, HSUS, Contender Farms, Lee McGartland, Mike McGartland, Show Inc, united states department of agriculture

UPDATE: I just found the documents which the McGartlands wanted removed from the USDA website. They publicly filed them in their public lawsuit against the USDA. Therefore the documents are privileged and can be publicly shared. The documents attached to their February 2016 lawsuit against the USDA include Tab, Exhibit 8 which are official warning letters and form 7060. They involve four horses who showed evidence of soring at two events on three different days. The documents in order are as follows,

August 23, 2012 form 7060 violations of federal law, unlawful acts, case TN130373-AC, violator Mike McGartland, 15 U.S.C. Sec 1824(7) showing of horse with substance used to sore a horse, ( C.F.R. Sec 11.2(c) prohibited substance, horse tested positive for sulfur, horse "Low on Gin," 74th Annual Tennessee Walking Horse National Celebration in Shelbyville, TN.

Same violation against Lee McGartland.

Same violation against Chris Alexander.

August 30, 2012 form 7060, case TN130155-AC, against Mike McGartland, 15 U.S.C. Sec 124(2), horse is sore. 9 C.F.R. Sec 11.3 scar rule, horse is sore, horse "He's Shady in Black," in the 74th Annual Tennessee Walking Horse Naional Celebration in Shelbyville, TN.

Same violation against Lee McGartland.

Same violation against Chris Alexander.

February 17, 2016 official warning letter from the USDA, case TN150128-AC. Letter states USDA could impose civil penalties up to $2,200 or other sanctions for each violation. USDA decided not to pursue penalties as long as they don't violate the regulations again. They offered them the opportunity for a hearing.

August 26, 2014, Lee McGartland, TN150128-AC, 15 U.S.C. sec 1824(2)(A), horse is sore, horse "She's A Shady Sister" (class no. 120, entry no. 1001) at the 76th Annual Tennessee Walking Horse National Celebration in Shelbyville, Tennessee.

Same warning letter as February 17, 2016 but to Michael McGartland.

Same for 7060 as above August 26, 2014 but to Michael McGartland, case TN150127-AC. This time the horse is "Blue's Master" (class no. 139B, entry no. 982), same show.

Below is the link to the documents.

https://drive.google.com/file/d/0BxE8KfVPjYF4dUhGeFJwRFp3YjQ/view?usp=sharing

It's really shocking that the McGartlands would demand that the USDA remove all inspection, permit, violation reports because of a few warning forms and letters. In their lawsuit they said they were denied a hearing. In the letter the USDA offered them a hearing if they wanted to contest the warnings. The USDA could have cited them, fined them but they didn't.

From personal experience I can tell you that USDA is not very strict on enforcing regulations. You have to do something really bad to even get a warning. Even after warning letters they don't start any action unless the person refuses to correct their behavior and defies the USDA like the Wildlife Waystation and Tiger Rescue did numerous times. I personally feel that the Texas attorneys who owned the horse just wanted to bully the USDA into silence. They almost succeeded. Hopefully the USDA will be able to stop them. We need those records to be public for this reason.

February 3, 2017 USDA removed permit and inspection reports along with the search engine stating it was in part due to litigation. February 7, 2017 they updated their reason, see below.

https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/enforcementactions

"Last Modified: Feb 3, 2017  Print
Courts are continuously issuing decisions that provide agencies with guidance on interpreting and applying laws applicable to the release of information to the public by the Federal government, including the Privacy Act and Freedom of Information Act. In addition, the U.S. Department of Justice maintains comprehensive guidance involving the Privacy Act, Freedom of Information Act, and other laws, and updates such guidance based on legal developments. APHIS, with the support from the Office of the General Counsel, continuously monitors these sources of information and makes refinements to APHIS’ practices, as needed.

Based on our commitment to being transparent, remaining responsive to our stakeholders’ informational needs, and maintaining the privacy rights of individuals, APHIS is implementing actions to remove documents it posts on APHIS’ website involving the Horse Protection Act (HPA) and the Animal Welfare Act (AWA) that contain personal information. These documents include inspection reports, research facility annual reports, regulatory correspondence (such as official warnings), lists of regulated entities, and enforcement records (such as pre-litigation settlement agreements and administrative complaints) that have not received final adjudication. In addition, APHIS will review and redact, as necessary, the lists of licensees and registrants under the AWA, as well as lists of designated qualified persons (DQPs) licensed by USDA-certified horse industry organizations to ensure personal information is not released to the general public.

Those seeking information from APHIS regarding inspection reports, research facility annual reports, regulatory correspondence, and enforcement records should submit Freedom of Information Act requests for that information. Records will be released when authorized and in a manner consistent with the FOIA and Privacy Act. If the same records are frequently requested via the Freedom of Information Act process, APHIS may post the appropriately redacted versions to its website. In addition, some enforcement records (such as initial decision and orders, default decisions, and consent decisions) are available on the USDA’s Office of Administrative Law Judge’s website (https://www.oaljdecisions.dm.usda.gov). For more information on preparing and submitting Freedom of Information Act requests, please visit https://efoia-pal.usda.gov/palMain.aspx."

USDA stated they removed the documents because of litigation. I went and found a couple of the cases related to the take down of this public information. One of the cases is CONTENDER FARMS, LLP, LEE MCGARTLAND, MIKE MCGARTLAND and SHOW, INC., Plaintiffs vs.
UNITED STATES DEPARTMENT OF AGRICULTURE, Case No. 4:16-cv-163-Y, UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF TEXAS, FORT WORTH DIVISION.

This is the second lawsuit the McGartlands who are both lawyers, attorneys filed against the USDA over their alleged violations and public reports. From the Washington Post,

Lee Wall McGartland, Michael "Mike" McGartland, Texas, lawyers, personal injury, tennessee walking horses, usda, lawsuit


"Three summers ago, Lee Wall McGartland and Mike McGartland entered a horse named The Royal Dollar in the 74th annual Red Carpet Show of the South. A veterinary medical officer from the U.S. Department of Agriculture was there, too.

The animal placed third in its class in the competition for Tennessee walking horses, which have a high-stepping gait that enthusiasts say comes from breeding and training. But it can also come from the application of caustic chemicals to a horse’s legs and other painful practices called “soring.” These are outlawed under the federal Horse Protection Act, and the Agriculture department is responsible for horse owners’ compliance. During a post-show inspection, the veterinary officer determined that The Royal Dollar was sore.

The finding resulted in one of several official warnings between 2013 and 2016 that identified the McGartlands as “violators” — warnings that appeared on a public USDA database and that now underpin a legal battle between the Texas couple and the department. The McGartlands sued, arguing that the enforcement program denies due process to those accused of violations and breaks privacy laws by publishing personal information."

In this case the USDA noted that the Plaintiffs violated the Horse Protection Act. USDA posted in the USDA website their inspection reports, inventory of animals, warning letters and other related USDA documents.

Plaintiffs sued the USDA stating that posting that information is a violation of Plaintiff's privacy. Plaintiffs also state that they feel the reports are false and defamatory. Plaintiffs state they were never allowed a hearing before a court of law before the violations were listed on the USDA website even though they did receive warning letters. From the second amended complaint which is linked below,

"Plaintiffs in this case allege that both USDA’s use of warnings and publication of the Form 7060s and other enforcement-related information are unlawful and not authorized by the HPA. (ECF No. 45, Second Am. Compl. ¶¶ 44-51, 58, 64)."

Previously USDA said there could be no settlement of this lawsuit. Now all of a sudden after the documents were purged Plaintiffs said there could be a settlement. HSUS then intervened because they need online access to the documents because they cannot be timely obtained through FOIA requests. Below is the motion and memorandum in support. If you look at the linked USDA documents in the memorandum, they're now missing. You get a 403 page.

Second Amended Complaint by Plaintiffs.

https://drive.google.com/file/d/0BxE8KfVPjYF4V3dVY2dxUi1icVU/view?usp=sharing

HSUS Motion to Intervene.

https://drive.google.com/file/d/0BxE8KfVPjYF4bkZHMWdsQVdHd3M/view?usp=sharing

HSUS memorandum in support of motion to intervene.

https://drive.google.com/file/d/0BxE8KfVPjYF4c21IdWxzcUNFbXc/view?usp=sharing

Here is the docket.

https://drive.google.com/file/d/0BxE8KfVPjYF4NmtqQ1dzdHFHTFE/view?usp=sharing

Plaintiffs argue that having the documents online is a violation of the Privacy Act §552a(b).

"The legal wrong about which the McGartlands and Contender Farms complain results from
USDA employees unlawfully deciding the McGartlands violated the HPA and imposing sanctions
on them by assessing penalties that are then published on USDA databases. 5 U.S.C. §551(10)(C)
and (13). SHOW complains that the USDA has wrongfully publicized on these same databases
that SHOW has violated the HPA."

The McGartlands also complain that the USDA has violated their privacy rights by
disclosing and publishing false and misleading personal information about them on USDA
databases in violation of the Privacy Act, 5 U.S.C. §552a(b).

"D. The USDA Unlawfully Disclosed the McGartlands’ Personal Information
Without Their Consent in Violation of Privacy Act §552a(b).
69. On June 8, 2015, the McGartlands saw on the USDA’s website that they were identified as
having violated the HPA on August 23 and 30, 2012. The USDA was immediately contacted and
informed of the McGartlands’ concern that it had been publically disclosed that they had violated
the Act, pointing out that the HPA does not authorize the Agency to release allegations about those
it investigated or believed had violated the Act. The USDA was requested to remove the website
and inform the world that it was a mistake to have said the McGartlands violated the Act.
70. On June 12, 2015, the McGartlands wrote the USDA complaining of the lists the Agency
was publishing that identified them as having violated the Act, pointing out that the USDA was
violating HPA §1825(b) and the Privacy Act. The McGartlands requested the Agency stop making
disclosures about them. The disclosures about the McGartlands on the Searchable Violations List
and Enforcement Actions List were materially false and misleading."

Plaintiffs further argue that the documents should not be released in a FOIA request.

"76. The Privacy Act and FOIA Exemption 7(C) protect from disclosure information compiled
for law enforcement purposes where release “could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C. §552(b)(7)(C). There can be little question
that Agency disclosures, that the McGartlands have been targets of USDA law-enforcement
investigations and enforcement actions, can, and have subjected them to embarrassment and
potentially more serious reputational harm."

They request their information be removed.

"118. Plaintiffs seek a declaration holding unlawful and setting aside Defendant’s alternative
enforcement programs to Formal Enforcement Proceedings, under which the USDA decides that
people have violated the HPA, penalizes them for the violation and falsely and misleadingly
publishes their names on database list as having been determined to have violated the Act.

119. Plaintiffs seek an order enjoining the USDA from publishing the Searchable Violations
List, Enforcement Actions List and HIO Penalty Lists, which falsely or misleadingly identify
people as having been determined to have violated the HPA.

120. Under the APA, HPA and Privacy Act, the McGartlands request this Court declare that the
USDA has violated and is violating the Privacy Act by disclosing the McGartlands’ personal
information in violation of 5 U.S.C. §552a(b). The McGartlands request that the Court enjoin such
violations from occurring in the future, and order that all USDA lists identifying the McGartlands
as having been the subjects of investigations into HPA violations or identifying them as having
been penalized with a public reprimand or Form 7060 be removed from the USDA’s website."

Below is HSUS answer to Plaintiff's complaint. They state Plaintiffs have failed to state a claim and lack standing. I believe if Plaintiffs feel they were defamed, they should have sued for defamation. As the reports are now outside of the statute of limitations of one year for defamation in Texas, they cannot bring a suit for defamation.

https://drive.google.com/file/d/0BxE8KfVPjYF4WExpMGZFZE1kZU0/view?usp=sharing

Plaintiff previously sued USDA for similar things. They lost in district court under fair Judge Terry means, appealed, it was affirmed in part and reversed in part. Below is the docket of the previous case.

https://drive.google.com/file/d/0BxE8KfVPjYF4TTA2aDVSSjJsZ2c/view?usp=sharing

Opinion on the appeal.

https://drive.google.com/file/d/0BxE8KfVPjYF4MUNpMmpCeUtZZkk/view?usp=sharing

http://www.ca5.uscourts.gov/opinions%5Cpub%5C13/13-11052-CV0.pdf

Legal summary about the case.

http://www.courthousenews.com/2015/02/23/5th-circuit-nixes-usda-horse-protection-rule.htm

In summary it appears that Lee and Mike McGartland of Show Inc and Contender Farms show their Tennessee walking horses. They were upset that USDA passed a regulation in 2012 making it mandatory for horse shows to suspend horses which show evidence of soring per USDA inspectors. One of their horses place third then was suspended when a USDA inspector found evidence of soring. The McGartlands sued. They lost in district court, appealed. It was affirmed in part and reversed in part. The McGartlands sued on a technicality stating that the law states there should be a horse inspection but never stated it should be by a USDA inspector.

The McGartlands sued the second time to remove their inspection reports, violation reports and warning letters from the USDA website claiming privacy violations. They also sued because they feel they were noted as having violations without being given a chance to have their case heard before a judge. My opinion is that they could have appealed the USDA's violation report. I did that with the California Dept of Fish & Game. I didn't have a violation report. I appealed an administrative issue and won. The owners of the horse and Plaintiffs in the lawsuit are both personal injury attorneys.

As I see it the Gartlands were found to have sored horses by the USDA. The received violations and their inspection reports were posted online. They felt this hurt their reputation and business. They sued to have evidence of their horse soring removed from the public websites. Sounds to me like someone who committed cruel acts on an animal and they just don't want everyone to know it. These lawsuits bring even more attention to the alleged cruel acts.

Previous article on this USDA issue.

http://animaladvocatesmarycummins.blogspot.com/2017/02/animal-advocates-starts-usdachallenge.html

Here is another one of the lawsuits behind the USDA document dump.

http://marycumminsrealestatemarycummins.blogspot.com/2017/02/usda-removed-documents-because-of-party.html

Mary Cummins of Animal Advocates is a wildlife rehabilitator licensed by the California Department of Fish and Game and the USDA. Mary Cummins is also a licensed real estate appraiser in Los Angeles, California.


Google+ Mary Cummins, Mary K. Cummins, Mary Katherine Cummins, Mary Cummins-Cobb, Mary, Cummins, Cobb, wildlife, wild, animal, rescue, wildlife rehabilitation, wildlife rehabilitator, fish, game, los angeles, california, united states, squirrel, raccoon, fox, skunk, opossum, coyote, bobcat, manual, instructor, speaker, humane, nuisance, control, pest, trap, exclude, deter, green, non-profit, nonprofit, non, profit, ill, injured, orphaned, exhibit, exhibitor, usda, united states department of agriculture, hsus, humane society, peta, ndart, humane academy, humane officer, animal legal defense fund, animal cruelty, investigation, peace officer, animal, cruelty, abuse, neglect #marycummins #animaladvocates #losangeles #california #wildlife #wildliferehabilitation #wildliferehabilitator #realestate #realestateappraiser #realestateappraisal #lawsuit

No comments:

Post a Comment