By T. D. Thornton
Eight individual owners, trainers and other Thoroughbred industry licensees in Oklahoma on July 24 filed what is now the sixth federal lawsuit in three years to try and get the Horseracing and Safety Integrity Act (HISA) declared unconstitutional.
As in previous lawsuits that have similarly targeted the HISA Authority and Federal Trade Commission (FTC) as defendants, the Oklahoma horsemen want declaratory judgments, injunctions, and restraining orders imposed that would invalidate HISA rules and prohibit the HISA Authority, the FTC, and the Horseracing Integrity and Welfare Unit (HIWU) from enforcing the regulations that govern the sport.
“As with other litigation making similar claims, we will vigorously defend our ability to implement HISA's safety and integrity rules,” a spokesperson for the Authority stated Friday in an emailed response to TDN's request for comment on the new lawsuit.
Even though the two counts in the Oklahoma horsemen's civil complaint-alleged violations of the Constitutional non-delegation doctrine and the Administrative Procedure Act (APA)-are familiar planks whose angles have been argued in some of the other lawsuits, this new one filed Wednesday in United States District Court of Oklahoma (Western District) hits on the fact that there are now two conflicting opinions in federal appeals courts about whether or not HISA is constitutional.
Although the lawsuit does not specifically mention that the question over HISA's constitutionality could be headed for the U.S. Supreme Court to resolve the conflicting appeals courts' opinions, the plaintiffs did make sure to underscore that the Fifth Circuit, on July 5, 2024, issued a ruling stating that HISA's enforcement provisions are facially unconstitutional. That opinion was a departure from the Sixth Circuit's ruling from Mar. 3, 2023, which stated that a change of language in the HISA law at the end of 2022 was sufficient to alleviate any concerns over the act's constitutionality.
The plaintiffs in this new case are Joe Offolter, Danny Caldwell, Elizabeth Butler, Randy Blair, Bryan Hawk, Scott Young, Boyd Caster and Michael Major. The complaint describes most of them as licensed participants for the upcoming Thoroughbred meet at Remington Park in Oklahoma City that starts Aug. 16.
Their lawsuit stated the following:
“The Act gives the Authority investigatory powers and the right to enforce alleged rule violations with fines, suspensions, and civil enforcement actions, asserting the power of the federal government…
“After an APA challenge, a federal district court in Louisiana held that the FTC's implementation of the rules violated the APA and enjoined their enforcement (in certain states, and for certain parties)…
“In a challenge involving Oklahoma, the Sixth Circuit found that Congress's amendment cured the facial constitutional defect by placing the Authority subordinate to the FTC. Pertinent here, the Sixth Circuit evaluated the challenge to the Act's enforcement provisions as a facial challenge, not an as-applied challenge to an individual enforcement action…
“A few weeks ago, the Fifth Circuit, on another look at HISA, disagreed with the Sixth Circuit, holding that HISA's enforcement provisions, on its face, unconstitutionally delegates federal executive power to a private entity…
“The Court should declare certain HISA provisions and concomitant regulations unconstitutional and preliminarily and permanently enjoin Defendants (or any of its associates or agents) from implementing and enforcing the same in Oklahoma and/or grant Plaintiffs alternative relief under the APA or other federal law.”
Beyond the Fifth Circuit case, whose lead plaintiff is the National Horsemen's Benevolent and Protective Association (HBPA), and the Sixth Circuit case, led by the states of Oklahoma, West Virginia and Louisiana, another case at the federal appeals court level is awaiting judgment in the Eighth Circuit.
That case involves leaders of the HBPA affiliates in Arkansas and Iowa seeking to reverse a lower court's denial of a preliminary injunction that sought to halt HISA and its Anti-Doping and Medication Control program.
Yet another federal lawsuit, in which both HISA and the FTC are defendants in a 2022 complaint initiated by the states of Louisiana and West Virginia, is listed on the docket as being “administratively stayed” pending the ruling by the Fifth Circuit that came out three weeks ago.
That's the lawsuit that, exactly two years ago, on July 26, 2022, put in place a preliminary injunction that is currently prohibiting HISA rules from being implemented in the states of Louisiana and West Virginia.
A sixth anti-HISA federal lawsuit filed in Texas in 2022 by a consortium of present, past, and aspirational pari-mutuel track operators in that state was ordered in 2023 to be condensed into the HBPA's lawsuit that also originated in Texas, which is the one that ended up going to the Fifth Circuit appeals court.
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