Sixth Circuit: No Rehearing On HISA Constitutionality Decision

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The United States Court of Appeals for the Sixth Circuit ruled Thursday that it will not grant a full-court rehearing to the losing plaintiffs who contested a three-judge panel's Mar. 3 decision to uphold the constitutionality of the Horse Racing Integrity and Safety Act (HISA).

The case is one of five anti-HISA constitutionality lawsuits currently active in the federal court system. Led by the states of Oklahoma, West Virginia and Louisiana, the plaintiffs collectively petitioned Apr. 17 for a rarely granted “en banc” procedure that asked for a rehearing before all 28 of the Sixth Circuit's judges instead of just the panel of three who had ruled that a change of language in the HISA law was sufficient to alleviate the plaintiffs' concerns over constitutionality.

“The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc. Therefore, the petition is denied,” the May 18 order stated in its entirety.

A United States Court of Appeals explanatory page about how en banc requests work stated that the granting of that type of rehearing was “rare” at the federal level. The Sixth Circuit took on only seven en banc hearings between January 2018 and September 2021, according to the University of Cincinnati Law Review.

Beyond the above-mentioned states, the plaintiffs include the racing commissions from Oklahoma and West Virginia, plus three Oklahoma tracks (Remington Park, Will Rogers Downs and Fair Meadows), the Oklahoma Quarter Horse Association, the U.S. Trotting Association, and Hanover Shoe Farms, a Pennsylvania Standardbred breeding entity.

The defendants are the United States of America, the HISA Authority, and six individuals acting in their official capacities for the Federal Trade Commission (FTC).

The underlying lawsuit dates to Apr. 26, 2021, when the plaintiffs sued, alleging that “HISA gives a private corporation broad regulatory authority.”

On June 2, 2022, that claim was dismissed by a judge in U.S. District Court, Eastern District of Kentucky (Lexington) for failure to state a claim of action. The plaintiffs then appealed to the U.S. Sixth Circuit.

In between the filing of that appeal and the Sixth Circuit's decision on it, an updated version of HISA was passed into law Dec. 29, 2022, with the aim of fixing constitutional flaws that a separate Fifth Circuit appeal had identified.

The Mar. 3 order by the Sixth Circuit affirmed the constitutionality of the amended HISA law. On remand from the Fifth Circuit, a United States District Court judge in Texas did the same thing May 4.

In its Apr. 17 rehearing petition, the plaintiffs had stated that parts of the panel's decision were “erroneous, and this Court should rehear the case en banc in order to resolve those questions of exceptional importance.”

Thursday's ruling by the Sixth Circuit disagreed.

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