Appeals Court Revisits Some Elements of HISA Stay Order



A panel of three judges from the United States Court of Appeals for the Fifth Circuit issued a new, more fine-tuned order Monday in the Horseracing Integrity and Safety Act Authority (HISA) lawsuit that narrows the scope of an “administrative stay” that same court had issued five days earlier.

The Aug. 8 order now means that instead of the entire slate of HISA rules being re-activated in Louisiana and West Virginia (as per the Aug. 3 Appeals Court order that trumped a preliminary injunction issued July 26 by a lower U.S. District Court in Western Louisiana), three contested HISA rules will once again be off-limits from being enforced in those two plaintiff states, at least until “expedited” oral arguments are scheduled in front of the Appeals Court next month.

“The district court in granting the injunction that is the subject of the motion to stay ruled only

on the lawfulness of the rules and not on the constitutional issues raised which are pending before this court in another case,” the Aug. 8 order stated.

“The district court held that Plaintiffs had a strong likelihood of success on the following two claims: '1) The 14-day period for notice and comment for each set of approved rules was insufficient under the Administrative Procedure Act (APA) and 2) Several rules go beyond the statutory authority given to HISA and the Federal Trade Commission (FTC).'” The order stated. “We conclude that the stay elements are met with respect to the insufficiency of the 14-day period of notice.

“With respect to the second part of the ruling, the district court did not address the vast majority of the regulations at issue, instead concluding only that a few of the rules within the regulations exceeded the authority.”

The order continued: “Having considered those matters, we rule as follows: The motion to stay the district court's July 26, 2022, preliminary injunction is GRANTED in part and DENIED in part. We grant the motion to stay the injunction as to all of the regulations except for the following: Rules 8400 and 8510 and two provisions of Rule 2010.”

Rule 8400 establishes the Authority's power of access to records and places of business used in connection with Covered Horses and authorize the seizure of medications or other items that are in violation or suspected violation of Authority rules. The rules require Covered Persons to cooperate with the Authority in investigations, and they include the duty to respond truthfully to questions posed by investigators about a racing matter. Rule 8400 also authorizes the issuance of subpoenas and oaths to witnesses.

Rule 8510 is HISA's “Methodology for Determining Assessments” that fund the Authority.

The plaintiffs in the underlying June 29 lawsuit (the state of Louisiana, its racing commission, the Louisiana Horsemen's Benevolent and Protective Association, the Louisiana Thoroughbred Breeders Association, the Jockeys' Guild, the state of West Virginia, its racing commission, and five individuals regulated as “covered persons” under the HISA Act) have argued that using purses as part of that assessment calculation violates the enabling legislation.

The two provisions of Rule 2010 that now can't be enforced in the plaintiff states deal with the definitions section of the racetrack safety program, specifically “the date of the Horse's entry in a Covered Horserace” and “the date of the Horse's nomination for a Covered Horserace,” according to the Aug. 8 order.

The defendants (the HISA Authority, the FTC, and board members and overseers of both entities) are alleged to have violated the Fourth, Seventh and Tenth Amendments to the Constitution, plus the APA, which governs the process by which federal agencies develop and issue regulations.

But that underlying lawsuit can't move forward until the Appeals Court issues get legally resolved first.

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