by Sue Finley and T. D. Thornton
This story has been updated.
The Fifth Circuit United States Court of Appeals on Tuesday denied a motion by the Horseracing Integrity and Safety Act (HISA) Authority for that court to vacate its recent opinion that HISA is unconstitutional.
Back on Jan. 3, the HISA Authority had asked for the Fifth Circuit's Nov. 18, 2022, anti-constitutionality order to be vacated based on a federal rewrite of the HISA law in December.
Also on Tuesday, separate motions for a rehearing of the case made by both the HISA Authority and the Federal Trade Commission (FTC) were shot down by the same Fifth Circuit panel of judges.
And after ruling on those two motions, the Fifth Circuit then issued a mandate that stated, “IT IS ORDERED and ADJUDGED that the judgment of the District Court is REVERSED and REMANDED to the District Court for further proceedings in accordance with the opinion of this Court.”
The flurry of Fifth Circuit court action Jan. 31 bolstered the case for a plaintiff team led by the National Horsemen's Benevolent and Protective Association (NHBPA), which two weeks ago urged the court not to grant either the vacated order or the rehearings because the new federal law that amended the operative language of HISA did not “fix” all the alleged constitutionality issues that plaintiffs have raised in federal lawsuits.
“We view this as additional strong evidence as to the valid concerns we have been raising all along and this should remind everyone that constitutionality isn't optional,” Eric Hamelback, the chief executive officer of the NHBPA, said in a statement.
“We have made it very clear that the one-sentence so-called fix tucked into Congress's must-pass year-end spending bill did not address all the legal questions created in the HISA corporation's enabling legislation,” Hamelback continued.
“With that said, it's extremely gratifying that the Fifth Circuit Court of Appeals has denied the HISA corporation's motion to vacate the Appellate Court's original unanimous opinion that found the Horseracing Integrity & Safety Act unlawful,” Hamelback said.
Asked to comment on Tuesday's court orders and the mandate, Mandy Minger, HISA's director of communications, wrote in an email that, “In the aftermath of the recent Congressional amendment, and without opining on the newly amended HISA law, the Fifth Circuit has sent the case back to the district court. Outside Louisiana and West Virginia, the Authority will continue enforcing the Racetrack Safety Program and preparing for the implementation of its Anti-Doping and Medication Control Program on March 27, subject to the Federal Trade Commission's approval of the rules.”
At a later point in the NHBPA statement, Hamelback took umbrage with the HISA Authority's recent resubmission of those medication rules while constitutional questions remained in limbo.
“Citing the legal uncertainties in the wake of the Fifth Circuit's ruling, the FTC issued an order on Dec. 12 of 2022 disapproving the Anti-Doping and Medication Control proposed rules submitted by the HISA corporation until those questions regarding constitutional challenges are resolved,” Hamelback said. “Therefore, it was the height of arrogance for the HISA corporation to recently resubmit such rules on the pretext that the so-called fix actually was one. As we see it now more than ever, the Fifth Circuit Court made it clear significant constitutional questions remain with HISA.”
Hamelback continued: “To be clear, absolutely nothing has changed in the Fifth Circuit Court of Appeals since the FTC originally rejected these rules, and the FTC must wait on the outcome of ongoing litigation to be resolved. Along with a bipartisan group of U.S. Senators and Congressmen, we believe the FTC must reject these again based on the unconstitutional uncertainty.”
Prior to reaching the Fifth Circuit on appeal, the underlying lawsuit was initiated by the NHBPA and 12 of its affiliates against personnel from the HISA Authority and the FTC on Mar. 15, 2021, bringing anti-constitutionality claims under the private-nondelegation doctrine, public-nondelegation doctrine, Appointments Clause, and the Due Process Clause.
On Mar. 31, 2022, a U.S. District Court judge dismissed that suit, writing in an order that “despite its novelty, [HISA] as constructed stays within current constitutional limitations as defined by the Supreme Court and the Fifth Circuit.”
The HBPA plaintiffs appealed that decision, leading to the Fifth Circuit's reversal on Nov. 18.
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