Anti-HISA Ruling Could Be Delayed for Months

The Fifth Circuit Court of Appeals, which in November ruled the Horseracing Integrity and Safety Act is unconstitutional, turned down a Dec. 15 request by the states and racing commissions of Louisiana and West Virginia to give the decision effect on Dec. 19. The upshot is enforcement of a lower court injunction against HISA could be delayed for months.

The two-line order denying the request was entered Dec. 16 by the same three Fifth Circuit judges who reversed a Texas federal district court ruling in favor of HISA. The lower court injunction against HISA was entered by a federal district court in Louisiana, which is also in the Fifth Circuit.

The Fifth Circuit's anti-HISA decision cannot take effect unless and until a mandate issues. A publication of the American Bar Association says, "At its most basic, the mandate is the device by which an appellate court closes an appeal."

HISA and the Federal Trade Commission, both of whom were affected by the Fifth Circuit decision, still have time to seek various avenues of relief from the Fifth Circuit decision, including asking for an "en banc" rehearing by the entire panel of judges who comprise the Fifth Circuit. When an en banc review is requested, delay of the mandate is automatic by rule, according to the ABA source.

"If the Defendants-Appellants indeed seek rehearing, then the mandate will be further postponed—possibly for months," wrote the attorneys who lost the mandate motion.