By T. D. Thornton
The North American Association of Racetrack Veterinarians (NAARV) is arguing for the United States Court of Appeals for the Fifth Circuit to overturn the Horseracing Integrity and Safety Act (HISA) on constitutional grounds because the law allegedly “places the racetrack veterinarians at a greater risk than other covered persons” from a due process standpoint.
Chief among the assertions made by the NAARV in a 51-page “friend of the court” brief filed July 14 are that “initial findings of wrongdoing by a member of NAARV, pursuant to HISA, result in a report to the Federal Trade Commission (FTC) and, therefore, a federal violation. A federal violation would inevitably result in the loss of not only the NAARV member's track license, but also the loss of the member's professional license to practice veterinarian medicine.”
In addition, the NAARV alleged that HISA creates a “financial barrier to due process review.”
That's because, according to the NAARV's filing, the ultimate authority, the FTC, isn't obligated to accept any covered person's request for review of a HISA ruling against them.
And if such a request for review is denied, that covered person's only right to appeal is to bring the matter all the way to a United States Court of Appeals, the NAARV stated. There are only 12 such courts in the country, divided regionally.
“Logistically, this is more challenging,” the NAARV filing stated. “Take, for example, a covered person who has an alleged violation in Texas. He or she must now pursue an appeal before the Fifth U.S. Circuit Court of Appeals in New Orleans, Louisiana.
“A person who has allegedly committed a medication violation in Puerto Rico, if he or she decide to appeal, must pursue that appeal before the First U.S. Circuit Court of Appeals in Boston,” the brief continued.
Beyond potential travel burdens, the NAARV pointed out, bringing any legal action to that level of the federal court system isn't cheap.
“The estimated legal cost for a trip to the U.S. Court of Appeals is in excess of $25,000,” the NAARV stated.
“It creates a cost or premium for substantive due process rights that is unobtainable for most NAARV members and thus, results in a denial of their due process rights,” the NAARV stated.
At a different point in the filing, the NAARV explained that veterinarians accused of wrongdoing would no longer be “in a position to 'take the deal' on a minimum violation but instead forced to defend their position to maintain their license and their livelihood.”
The NAARV continued: “Prior to the implementation of HISA, NAARV members were able to negotiate a state violation without necessarily risking their general veterinary license. Under HISA, they are forced to do so in a system [that] deprives them of both substantive and procedural due process.”
The NAARV's assertions were made in support of the appeal led by the National Horsemen's Benevolent and Protective Association (NHBPA) and 12 of its affiliates.
The defendants in the underlying case, which has lingered in the federal court system for 28 months, are personnel from the FTC and the HISA Authority.
The HISA Authority and FTC have an Aug. 4 deadline to file their own briefs with the Fifth Circuit Court.
Oral arguments in the case are tentatively scheduled for the first week in October.
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