HISA Opponents Seek National Injunction

HISA officials downplay move, say Congress’ amendment has addressed concerns.

Bloodhorse Article Written By Article by Dick Downey, Article posted on February 07, 2023

An amended complaint filed in a Louisiana federal court names a host of new states and other entities seeking a national injunction against oversight of important areas of horse racing by the Horseracing Integrity and Safety Authority.

The case referenced originally was filed by the states and racing commissions of Louisiana and West Virginia, the Louisiana Horsemen’s Benevolent and Protective Association and others. A preliminary injunction issued by Judge Terry Doughty of the U. S. District Court for the Western District of Louisiana led to a halt of rules enforcement in the two named states by HISA and the Federal Trade Commission.

According to the amended complaint, four other states are now involved in the lawsuit: Arkansas, Mississippi, Nebraska, and Oklahoma. Pari-mutuel racing is held in all of those states except Mississippi. In addition to the racing commissions of Louisiana and West Virginia, new plaintiffs include the Oklahoma Racing Commission and Nebraska Racing and Gaming Commission. Although the state of Arkansas is named in the case, the Arkansas Racing Commission is not a plaintiff.

In a statement, HISA officials expressed doubt that the injunction would be expanded.

“The ongoing litigation in Louisiana focuses solely on procedural matters regarding the FTC’s approval of HISA rules. The Fifth Circuit has already called into question the plaintiffs’ arguments on these matters in its previous ruling temporarily staying the district court’s injunction,” HISA officials said. “The sole basis for the Fifth Circuit’s subsequent decision to leave the injunction in place, i.e., the constitutionality of HISA, no longer applies given Congress’s amendment and the FTC’s ratification of HISA’s rules. This litigation does not question HISA’s constitutionality or validity.”

“HISA will continue to vigorously oppose the plaintiffs’ efforts to foment chaos and confusion in our sport.”

A number of other tracks, people and organizations also are named in the updated complaint, including Fonner Park, Horsemen’s Park and Legacy Downs Racetrack in Nebraska, and Turf Paradise Racetrack in Arizona. Also named are HBPA groups from Arizona, Arkansas, Illinois, Iowa, Indiana, Kentucky, Louisiana, Minnesota, Nebraska, Ohio, Oklahoma, Pennsylvania, and Washington; and the HBPAs of Charles Town and Tampa Bay Downs. Five individuals are also plaintiffs: Benard K. Chatters, Edward J. Fenasci, Larry Findley, Sr., Warren J. Haran III and Gerard Melancon; as well as the North American Association of Racetrack Veterinarians.

A companion case challenging HISA filed in a Texas federal court was denied, but an appeal to the Fifth Circuit Court of Appeals resulted in a ruling late last year that HISA is facially unconstitutional. The Texas case was instituted by the national HBPA and joined by many state HBPAs. The federal district courts in both Louisiana and Texas are under the Fifth Circuit umbrella of federal district courts.

After HISA and the FTC lost in the Fifth Circuit appeals court, they sought and obtained what they hope is a legislative fix enacted by Congress and signed into law by President Joe Biden. The amendment to HISA broadened the power of FTC to oversee HISA, a private entity created by the original legislation, in order to address concerns in the Fifth Circuit’s ruling.

The Fifth Circuit declined to provide further appellate review of its decision following the amendment. Instead, the appellate court remanded, or sent back, the cases to their respective district courts in Louisiana and Texas for further handling.

The amended lawsuit seeks a nationwide injunction against HISA justified by what it describes as “the broad collection of plaintiffs from around the country.” The new plaintiffs named in the amended complaint have asked leave of court to join the Louisiana case, but it doesn’t appear Doughty has granted them permission. If he does, plaintiffs argue, the injunction now in place in Louisiana and West Virginia should be expanded.

After the Fifth Circuit decision declined to provide further appellate review in light of HISA’s amendment, HISA said in late January that outside of Louisiana and West Virginia, it would continue enforcing the Racetrack Safety Program, which launched last year, and preparing for the implementation of its Anti-Doping and Medication Control Program on March 27, subject to the FTC’s approval of the rules.

The amended complaint in the Louisiana case continues its original arguments that HISA and the FTC exceeded their own statutory authority; that the adoption of HISA rules violate the federal Administrative Procedures Act; and that the legislation violates the Fourth and Seventh Amendments to the federal Constitution. It reignites what is sure to be protracted litigation over the legality of HISA.

The case filed in Texas argued broader constitutional grounds, and the Fifth Circuit’s ruling that HISA is facially unconstitutional stemmed from those legal arguments.

Further complicating matters, a split in legal authority will arise if a case pending in the Sixth Circuit Court of Appeals affirms the constitutionality of HISA. That case has been fully briefed and is under submission.

–Frank Angst also contributed to this story.

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