Keeping Tabs on HISA Lawsuits: Current Status

After several delays imposed by court order and its own choices, the Horseracing Integrity and Safety Authority is prepared to fully engage enforcement powers for anti-doping and medication control on May 22. Here's a rundown of the current status of various legal challenges to HISA, all of which are pending in the federal court system.

Sixth Circuit Court of Appeals 

A three-judge panel of the Sixth Circuit Court of Appeals based in Cincinnati in early March upheld the constitutionality of HISA after Congress amended the underlying legislation, affirming the decision of a federal district court in Lexington that reached the same result before the amendment. The states of Oklahoma, West Virginia, Louisiana, and other plaintiffs requested an en banc review of the case in April. That type of review is rare and must be agreed by a majority of the active circuit judges. There's no ruling on the request yet, but if it's denied, the plaintiffs have one remaining avenue of relief: the United States Supreme Court.

Fifth Circuit Court of Appeals - Texas Cases

A case that originated in the Northern District of Texas has been up and down the ladder with the Fifth Circuit Court of Appeals based in New Orleans, and it's going back up again. Federal District Judge James Wesley Hendrix originally ruled HISA constitutional following a complaint filed by the National Horsemen's Benevolent and Protective Association and affiliated HBPAs. On appeal, the Fifth Circuit reversed, finding the regulatory scheme unconstitutional on its face. The appeals court held no interpretation of the law could save HISA because the Authority, which is a private non-profit corporation, was not subordinate to a federal government agency, in this case, the Federal Trade Commission.

The Congressional amendment cited above followed, saying the FTC may modify, add to, or abrogate HISA rules. The Fifth Circuit then kicked the ball back to Hendrix to decide what it all means. He ruled last Friday the amendment fixed the problem raised by the ruling of the Fifth Circuit. In so doing, Hendrix denied a motion for a preliminary injunction against HISA. Despite the ruling, plaintiffs asked for an injunction pending appeal Monday. Assuming that motion is denied, plaintiffs will appeal to the Fifth Circuit, where they will seek an injunction as well as another decision finding HISA unconstitutional.

A second case filed in Texas called Gulf Coast Racing LLC, et al vs. HISA, et al was consolidated into the case handled by Hendrix. Those cases are on the same track now.

Fifth Circuit Court of Appeals - Louisiana Case

This is the case in which Judge Terry Doughty issued a preliminary injunction in favor of plaintiffs Louisiana, West Virginia, and individual plaintiffs that included the Jockeys' Guild until the Guild withdrew from the case. This case is based on alleged violations of the federal Administrative Procedures Act, not constitutional issues. Following the Fifth Circuit ruling finding HISA unconstitutional, Doughty's injunction remains in place, and HISA rules are not being enforced in Louisiana and West Virginia.

At the moment the parties are locked in a dispute over whether a number of additional plaintiffs from different states were improperly injected into the case. Adding those plaintiffs could, in theory, form a basis for enlarging the scope of the injunction to more states. But would Doughty do that, given the rulings of the Sixth Circuit and Judge Hendrix?

U.S. District Court for the Eastern District of Arkansas

This case was filed against HISA in Arkansas by the Iowa Horsemen's Benevolent and Protective Association and others. Federal district courts in Arkansas and Iowa all operate under the umbrella of the Eighth Circuit Court of Appeals. Not much has happened yet. A motion for preliminary injunction was filed by the plaintiffs on April 11. The time for defendants to respond to the motion was recently extended to May 15, and defendants have until June 16 to respond to the complaint.

U.S. District Court for the Western District of Oklahoma

Filed on March 29 by 15 individuals who are described as "mostly Thoroughbred racehorse owners, trainers, and veterinarians in Oklahoma," a motion for an emergency temporary restraining order was filed, but it was withdrawn at the request of the plaintiffs on April 3. There's been no substantive activity in the case since.

Summary

HISA opponents' chances of being granted review by the Supreme Court could be lessened if they are 0-2 in the Fifth and Sixth Circuits, but if the Fifth Circuit splits with the Sixth Circuit, a classic reason for granting review by the high court would arise.