Fifth Circuit Court of Appeals | Horse Racing Free Tips

HBPA Rips HISA’s Request for ‘Emergency’ Court Action

The National Horsemen's Benevolent and Protective Association (NHBPA) and 12 of its affiliates have filed a legal challenge to a Jan. 3 “emergency” motion made by the Horseracing Integrity and Safety Act (HISA) Authority that had asked for the United States Fifth Circuit Court of Appeals to vacate its recent HISA unconstitutionality order.

In essence, the horsemen's opposition to the request for emergency treatment stated that no pressing need or harm exists to speed up what would usually be a full 10 days for the NHBPA and other co-plaintiffs from the underlying lawsuit to respond to the motion to vacate the unconstitutionality order.

In the spring of 2022, the Fifth Circuit court had taken this case on appeal from a Mar. 31, 2022, ruling out of U.S. District Court (Northern District of Texas) that affirmed HISA's constitutionality by stating “the law as constructed stays within current constitutional limitations as defined by the Supreme Court…”

Then on Nov 18, a Fifth Circuit panel overturned the lower court's decision by ruling that HISA was indeed unconstitutional because it “delegates unsupervised government power to a private entity,” and thus “violates the private non-delegation doctrine.”

But on Dec. 29, President Biden signed into law a massive, year-end spending bill that included a small bit of language inserted by HISA supporters in Congress that amended the operative language of HISA to fix the constitutional defect the Fifth Circuit had identified.

The passage of that law prompted the HISA Authority's Jan. 3 motion asking the Fifth Circuit to “vacate its opinion and the judgment of the Court forthwith to prevent the serious harms that mount each day [and to] rehear this case in light of the intervening congressional amendment.”

Later on Tuesday (beyond TDN's deadline for this original story), the NHBPA filed its objection to the “emergency” nature of the motion.

“[T]he Authority Appellees come to this Court–on the very last day of their unusually long window to petition for rehearing–and demand that it reverse its prior decision, vacate its opinion, and issue a new opinion and the mandate 'forthwith,' namely, by Jan. 13, 2023. No crisis or irreparable harm justifies this accelerated treatment or a rushed briefing schedule that shortens Appellants' time to respond to the motion.

“The Authority Appellees have had since at least Dec. 5, 2022, to formulate their legal strategy (that being the first day the potential amendment was publicly reported in the news; it is possible the Authority knew much earlier). They have had since at least Dec. 20, 2022, when the omnibus language was first made public, to work on drafting the particulars of their motion (again, they may have seen it before it was made public, or even had a hand in writing the amendment's language).”

At a later point, the NHBPA filing continued: “[T]his is not a motion that can be dealt with in a quick two or three pages, like a motion for an extension of time to file a brief or hold a case in abeyance. This is a motion that seeks to vacate a published opinion of this Court. Such an important motion, in such an important case no less, deserves the full time authorized for a thoughtful, thorough response.

“Appellees point to no crisis or irreparable harm that justifies shortening the normal schedule. … Appellees do not even try to show 'irreparable harm,' even though this Circuit's rule for emergency motions requires that the motion 'state the nature of the emergency and the irreparable harm the movant will suffer if the motion is not granted.'

“If anything, this entire episode once again prompts the question Appellants have been asking all along: Who is really driving the train here, the Authority or the [Federal Trade] Commission? It is the Authority, not the Commission, that…is now filing the motion to vacate and the petition for rehearing. It is the Authority, not the Commission, asking this Court to take a decision that was briefed, argued, and decided over the course of months and toss it all aside in 10 days.”

The NHBPA's filing summed up: “The entire narrative only confirms that the Commission lacks any independent policy interest in the Act's administration or survival; it sees itself as humble minister of everyone else's will.”

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HISA, FTC File to Get Fifth Circuit Opinions Vacated, Cases Reheard

Citing the year-end passage into law of a bill that included language giving the Federal Trade Commission (FTC) more rule-making authority in the Horseracing Integrity and Safety Act (HISA), officials from HISA and the FTC who are defendants in two lawsuits before the Fifth Circuit United States Court of Appeals filed four separate documents on Tuesday seeking to vacate two opinions related to constitutionality issues and get rehearings in both cases.

In one lawsuit initiated by the National Horsemen's Benevolent and Protective Association (NHBPA) and 12 of its affiliates against personnel from the HISA Authority and the FTC, the Fifth Circuit ruled on Nov. 18 that HISA was unconstitutional because it “delegates unsupervised government power to a private entity,” and thus “violates the private non-delegation doctrine.” In this case, the defendants fired back with a pair of “emergency” motions and petitions Jan. 3.

Those filings essentially said that Congress and the President have done their parts to clear up any lingering constitutional ambiguity, and now the Fifth Circuit is obliged to do its duty to “say what the law is” with regard to HISA.

“This is the rare case where critical 'dialogue between and among the branches of Government,' has worked in real time both to advance Congress's pressing policy goals and to address the judiciary's asserted constitutional concerns,” the HISA and FTC defendants stated, referring to how swiftly–just over a month–the legislative and executive branches reacted to the Fifth Circuit's unconstitutionality ruling on HISA.

“Since their July 1 effectiveness date, the new [HISA] regulations have brought much-needed safety reforms to the benefit of horses and horseracing participants and, in turn, have begun to restore integrity to the sport,” the defendants stated.

“A few weeks ago, however, this Court held that HISA violates the private-nondelegation doctrine…. Because (in the panel's view) the FTC lacked 'the final word on the substance of the rules, the panel concluded that the Authority did not 'function subordinately to the agency.'”

The motion to vacate continued: “Congress heard this Court's concern and acted swiftly to resolve it. On Dec. 23 Congress again enacted, and on Dec. 29 President Biden signed into law, bipartisan legislation–this time amending the operative language of HISA to fix the alleged constitutional defect the panel had identified…

“Accordingly, the [Fifth Circuit] panel opinion–predicated on a prior version of HISA that no longer exists and that Congress purposefully replaced–cannot stand. Congress's direct response to the constitutional concern at the heart of the panel opinion–obviating the principal basis for Plaintiffs-Appellants' constitutional objection–strongly supports affirmance of the district court's judgment.

“But regardless of how and when the Court ultimately adjudicates this appeal, the panel should vacate its opinion and the judgment of the Court forthwith to prevent the serious harms that mount each day from the now-moot holding that the former version of the Act is facially unconstitutional…

“The panel should rehear this case in light of the intervening congressional amendment HISA and reverse the district court's grant of a preliminary injunction,” the filing concluded.

That last line refers to a Mar. 31, 2022, ruling in United States District Court (Northern District of Texas) that affirmed HISA's constitutionality by stating “the law as constructed stays within current constitutional limitations as defined by the Supreme Court and the Fifth Circuit.”

The HISA and FTC defendants also made related Jan. 3 filings in a separate Fifth Circuit case. This one involves the states of Louisiana and West Virginia, plus other “covered persons” under HISA, alleging unconstitutionality and federal rulemaking procedure violations.

Unlike the two filings in the above-referenced HBPA case, these were not labelled “emergency” motions or petitions. But they did ask for the panel's previously issued opinion to be vacated, the reinstation of a previously issued stay pending further appeal, and a panel rehearing.

“The district court's order preliminarily enjoining enforcement in Louisiana and West Virginia of all then-existing rules promulgated under HISA directly undermines Congress's goal of providing for uniform regulations to protect horseracing participants (equine and human) and restore integrity to the sport nationwide,” the defendants' filing stated.

“This Court appropriately stayed that order, finding that each of 'the stay elements are met' with respect to the district court's (manifestly flawed) conclusion that the Administrative Procedure Act forecloses the 14-day notice period the FTC formally provided…

“The stay pending appeal was necessary to 'allow [the Court] to bring 'considered judgment' to the matter before [it] and 'responsibly fulfill [its] role in the judicial process.' Yet the panel's subsequent decision to remand the case and lift the stay short-circuits that process, not based on the merits of the district court's order–which have never been adjudicated–but on the sole ground that a panel in a 'separate cases held that 'HISA is facially unconstitutional.'”

The filing summed up: “This Court should vacate its panel opinion and judgment, and reinstate the Court's stay pending further adjudication of this appeal…. The Court should grant [a] panel rehearing and reverse the district court's grant of a preliminary injunction.”

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The TDN’s Top 10 Stories of 2022

Another eventful year for horse racing is about to come to an end, which makes this a good time to look back at the TDN stories that were the most widely read during the year. From the heroics of Flightline (Tapit) to the on-going saga of the Horse Racing Integrity and Safety Act (HISA) to the latest developments in the Jorge Navarro-Jason Servis scandal, there was no shortage of important stories. Unfortunately, there were a number of major stories that reflected poorly on the sport, but, our statistics show, those are stories the readers want to read.

Here are the most widely read stories of 2022:

Fifth Circuit Court of Appeals Finds HISA Unconstitutional

by TDN Staff. 162,916 views.

It was mid-November and HISA was just a month and half away from taking over the functions of drug testing and enforcing medication rules for the entire sport. The wind was at its back, at least until a bombshell ruling in a federal court. The United States Court of Appeals for the Fifth Circuit ruled that the Horseracing Integrity and Safety Act (HISA) is unconstitutional because it “delegates unsupervised government power to a private entity,” and thus “violates the private non-delegation doctrine.” It was a major blow for HISA and, in time, may prove to be the beginning of the end when it comes to efforts to unify the sport under one umbrella group responsible for regulating many vital aspects of the game.

Chris Oakes Sentenced to Three Years

by Bill Finley, 138,313 views.

As has been the case since the indictments in the doping scandal were announced in March of 2020, TDN readers could not get enough of coverage of this story. In March of 2022, standardbred trainer Chris Oakes was sentenced to three years in prison after pleading guilty to one count of misbranding and drug adulteration with intent to defraud or deceive. Oakes was not only doping his own horses, but worked closely with Navarro and provided him with performance-enhancing drugs. Though the subject was a harness trainer, the story of Oakes's sentencing was easily the second most read TDN story of 2022.

Owner Hits Jackpot With First Horse

by Bill Finley, 41,777 views

Not everything the TDN reported on in 2022 was about scandals or a matter of gloom and doom. The third story on the list was a feel-good story about 83-year-old owner Pat Kearney. Kearney got involved in the sport late in life and the very first horse he purchased turned out to be Kathleen O. (Upstart), who won the GII Gulfstream Park Oaks and the GII Davona Dale S. “It has been an amazing, exciting, energizing experience,” said Kearney, who races under the name of Winngate Stables.

Chad Brown Arrested in Saratoga on 'Obstruction of Breathing' Charge

by Bill Finley, Mike Kane and Sydney Kass, 29,360 views.

Perhaps the most shocking story of the year occurred in August when future Hall-of-Fame trainer Chad Brown was arrested and charged with criminal obstruction of breathing. It was alleged that Brown choked and then pushed a former girlfriend down some stairs who had entered his house uninvited. Brown later pled guilty to the lesser charge of harassment, which allowed him to avoid any jail time.

Flightline Retired to Lane's End

by TDN staff, 26,262 views

After Flightline won the GI Breeders' Cup Classic there was a flicker of hope that he would race in 2023 as a 5-year-old. But, in the end, the realities of the economics of the sport made it so that he was far more valuable as a sire than as a racehorse and his connections announced his retirement less than 24 hours after he won the Classic.

Green Light Go Euthanized After Belmont Workout

by TDN staff, 23,849 views

No one wants to see a horse have to be euthanized, particularly one who enjoyed success on the racetrack. Green Light Go (Hard Spun), who won the 2019 GII Saratoga Special S., had to be put down after breaking a sesamoid bone in his right foreleg during a workout at Belmont in April.

Parx Investigation Finds Contraband Suspensions Expected

by Bill Finley, 20,635 views

It was the weekend of the GI Pennsylvania Derby at Parx, but not all the news was made on the racetrack. Investigators set up shop at the Parx backstretch gate, checking cars and individuals for illegal contraband. They uncovered a number of syringes and caught a jockey possessing a battery. Two trainers and the jockey were suspended.

2022 Kentucky Race Dates Set

by T.D. Thornton, 19,444 views

With the rise in purses in Kentucky, it's no wonder that this story, which reported on the Kentucky Horse Racing Commission awarding of dates for 2022, was the eighth most-read story of the year in 2022.

Trainer Doug O'Neill Suspended 60 Days

by TDN staff, 18,946 views

In November, O'Neill was suspended 60 days, fined $10,000, and put on probation for one year stemming from a medication positive by his starter Worse Read Sanchez (Square Eddie) at Golden Gate Fields May 1.

After McCarthy Spill, Migliore Points to the NY Stewards

by Bill Finley, 18,779 views

There are a lot of people, retired jockey Richard Migliore among them, who believe the New York stewards are too lenient when it comes to penalizing jockeys for rough and careless riding. After Trevor McCarthy went down in a spill in November, fracturing his collar bone and pelvis, Migliore called out the stewards. “It's irresponsible on the part of the rider but they are not being held accountable,” Migliore said. “When that happens, it's human nature. The more you can get away with, the rougher it's going to get. The stewards need to really crack down and lay down the law. No more nonsense.”

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Grassley Amendment Fails; HISA `Fix’ Language in Omnibus Bill

After a week of political uncertainty, the Senate has passed a version of the full year-end omnibus spending bill with language affording the Federal Trade Commission (FTC) more rule-making authority in the Horseracing Integrity and Safety Act (HISA), according to a source close to the process.

The language is designed to address a ruling in the Fifth Circuit Court of Appeals from November, which found the law as written doesn't afford the FTC enough latitude in the rule-making process.

The Senate voted in favor of the bill 68-29, but it must first pass the House of Representatives before heading to the president's desk.

It's currently unclear what specific language the Senate's version of the $1.7-trillion spending bill includes regarding HISA and the FTC's modified role.

But language in a prior version of the bill allows the FTC to “abrogate, add to, and modify the rules of the Authority promulgated in accordance with this Act as the Commission finds necessary or appropriate to ensure the fair administration of the Authority, to conform the rules of the Authority to requirements of this Act and applicable rules approved by the Commission, or otherwise in furtherance of the purposes of this Act.”

Currently, the FTC can only accept or reject a proposed rule constructed by the Horseracing Integrity and Safety Authority, the private entity given broad umbrella power over implementing the act.

In a statement immediately following the news, National Horsemen's Benevolent and Protective Association (HBPA) CEO, Eric Hamelback, praised last-minute efforts by a group of lawmakers led by Senator Chuck Grassley to strip the language from the omnibus spending bill.

“We know there were several Senators who would have supported removal language. However, the amendment did not get that opportunity and the HISA “fix” language remains in the Omnibus bill. With that said we are on firm ground to remain focused as the “fix” language changes very little about the Act as it remains unconstitutional,” wrote Hamelback.

HISA spokesperson, Mandy Minger, said that the Authority would have a comment after the bill is signed.

If enacted into law, questions swirl about what this legislative fix possibly means for HISA. Various avenues were detailed in a recent conversation with constitutional law expert, Lucinda Finley.

Last week, the FTC announced that it had disapproved “without prejudice” the program's anti-doping and medication control (ADMC) rules because of the law's constitutional holes.

In the near-term, with this new language HISA can resubmit the ADMC rules with the FTC. It would then take approximately 60 days for these rules to go into effect, “assuming that the FTC was going to approve them substantively,” HISA CEO Lisa Lazarus previously explained.

There remains a ruling pending in the Sixth Circuit Court of Appeals concerning similar constitutional questions to the Fifth Circuit. It is currently unclear when that ruling will land.

But if the amended language in the omnibus spending bill is sufficient in the judgement of the Fifth Circuit, it could essentially render the current cases before the Fifth and Sixth Circuits legally moot in a practical sense.

It could also make the possibility of the Supreme Court taking them up altogether highly unlikely.

Even then, don't expect the legal fireworks to end, with a case in the U.S. District Court of Texas–Northern District, Amarillo Division–a potentially nasty looking legal blackthorn for the law.

Finley told the TDN that the case raises several additional constitutional arguments that the Fifth and Sixth Circuits did not rule on, including HISA's investigative, subpoena and punishment power as a private body, and the way in which individuals on the HISA board are appointed.

“It argues that the whole structure is a delegation of not only too much executive authority, but can amount to a delegation of legislative and judicial authority as well,” Finley explained.

If the judge in the case agrees that HISA indeed delegates too much power to a private entity, the plaintiffs in the case are seeking an injunction to suspend enforcement of the law, said Finley.

Would such an injunction apply nationwide or just in Texas?

“You've actually asked what is one of the most raging controversies in U.S. law,” Finley replied, leaving the answer open-ended.

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