Terry Doughty | Horse Racing Free Tips

HISA Seeks Stay After Louisiana, West Virginia Ruling

Just six days after Horse Racing Integrity and Safety Authority (HISA) opponents won a round in court in which a federal judge granted a preliminary injunction that halted implementation of HISA rules going into effect in Louisiana and West Virginia, HISA and the Federal Trade Commission were back in court Monday filing an emergency motion for a stay pending appeal.

The motion was filed in the United States Court of Appeals for the Fifth Circuit.

The filing from HISA maintains that when granting the preliminary injunction, the court erred in regards to the length of the period required for public comment. Lawyers for HISA contend that the Federal Trade Commission, which oversees HISA, has provided 14 days for public comment following its publication of proposed rules, which does not violate any rules. They contend that the “court mistakenly believed required the Commission to provide a minimum 30-day comment period.”

The filing continues: “A stay is warranted because that ruling rests on legal error and does not reflect a sound balancing of the equities. The APA (Administrative Procedure Act) imposes no minimum comment period, and the district court plainly erred in concluding otherwise.”

When granting an injunction to the plaintiffs, which included the Jockeys' Guild and the states of West Virginia and Louisiana, Judge Terry Doughty of U.S. District Court (Western District of Louisiana) did not appear to consider the public comment period a major factor in his decision. Instead, he focused on the plaintiffs allegations that HISA was causing them irreparable harm and that an injunction was needed while still other courts were deciding the constitutionality of the Horse Racing Integrity and Safety Act.

“Here, there is an obvious link between the HISA rules and Plaintiffs' alleged injuries,” Doughty wrote. “All the above alleged injuries are 'fairly traceable' to the rules enacted thus far by HISA and the FTC.”

Borrowing a page from their adversaries, HISA attorneys wrote that if they are not granted a stay and HISA regulations cannot immediately be implemented in West Virginia and Louisiana that “will cause grave and irreparable harm to the horseracing industry and the public in contravention of Congress's clear intent.” They called Doughty's decision a case of “flagrant judicial overreach.”

Two separate federal courts have already dismissed lawsuits from the same plaintiffs that include similar arguments made before Doughty's court and question whether or not HISA is constitutional. Both courts ruled in favor of HISA but those decisions have been appealed.

“The preliminary injunction is unlikely to survive appeal and, in the meantime, will cause irreparable damage to the Authority's ability to implement the Act in a timely and orderly fashion,” HISA's court filing reads.

The HISA filing relies on the same arguments that gave birth to the Horse Racing Integrity and Safety Act, that when it comes to integrity and safety, the industry was adrift, in need of change and that the best way to accomplish that was through a central authority.

“The importance of this program cannot be overstated as [the Authority] build[s] on advances the industry has already

made by implementing national, uniform rules and regulations, increasing accountability, and using data- and research-driven solutions to enhance the safety of our horses and jockeys,” the filing reads.

The filing concludes: “This Court should stay the order pending appeal as soon as possible, but no later than Aug. 5, 2022 (as the harm from the injunction mounts with each racing day).

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Injunction Halts HISA Rules, But Only in Louisiana and West Virginia

The plaintiff states of Louisiana and West Virginia won a preliminary injunction in federal court Tuesday that will keep the Horseracing Integrity and Safety Act (HISA) Authority's rules from being implemented in those two states until a lawsuit challenging the constitutionality of HISA gets decided in full.

“This court believes the threatened harm to Plaintiffs outweighs any harm that may result to the Defendants and that a preliminary injunction will not undermine the public interest,” wrote Judge Terry Doughty of U.S. District Court (Western District of Louisiana).

“This Court is only ruling on the adoption of the rules by HISA, not the constitutionality of the Act,” Doughty was quick to add.

“The geographic scope of the injunction shall be limited to the states of Louisiana and West Virginia, and as to all Plaintiffs in this proceeding,” Doughty wrote.

The defendants, who consist of the HISA Authority, the Federal Trade Commission (FTC), and board members and overseers of both entities, are alleged in the June 29 suit to have violated the Fourth, Seventh and Tenth Amendments to the U.S. Constitution, plus the Administrative Procedure Act (APA), which governs the process by which federal agencies develop and issue regulations.

Lisa Lazarus, the chief executive officer of the HISA Authority, told TDN in an emailed statement that read, in part, “[Tuesday's] ruling from the Western District of Louisiana relates only to the FTC rules, is limited in geographic scope to Louisiana and West Virginia…and does not question HISA's constitutionality or validity. The Authority remains focused on implementing the Racetrack Safety program and drafting Anti-Doping and Medication Control rules for implementation in January 2023….

“The reality is that the majority of racing participants support the Authority's mission to protect those who play by the rules and hold those who fail to do so accountable in order to keep our equine and human athletes safe and the competition fair. The immense collaboration with state racing commissions, stewards, veterinarians, racetracks, trainers, and other horsemen that has taken place to date is evidence of this support, and we intend to continue to fulfill our mandate and work to make the industry safer,” Lazarus continued.

The plaintiffs, led by the states of Louisiana and West Virginia, plus the Jockeys' Guild and various Louisiana-based “covered persons” under HISA rules, had told the judge that it was imperative to obtain an injunction before the case winds its way through the legal system, lest they be exposed to the alleged harms of the rules. These types of federal court cases can often linger in the legal system for years without resolution.

In a 28-page memorandum explaining his ruling, Doughty noted that two civil suits attempting to get HISA struck down based on alleged unconstitutionality have already failed in federal courts and are currently pending appeal, and that those suits shared some common plaintiffs with the case that is now before his court.

But a key difference, Doughty wrote, is that, “This suit is the third attempt at stopping enforcement of HISA but the first to address the legality of the rules enacted.”

Doughty wrote that he first had to determine whether his court has judicial power to hear this case under the doctrine of “standing.” A federal court has judicial power only where a plaintiff has demonstrated that it 1) suffered an injury in fact; 2) is fairly traceable to the challenged conduct of the defendant, and 3) is likely to be redressed by a favorable decision. The party invoking federal jurisdiction has the burden of establishing those three elements.

Once the first phase of rules (covering racetrack safety, enforcement, and financial assessment methodology) went into effect July 1, Doughty wrote “All Plaintiffs allege they will suffer injuries 'in the form of vast destruction of the horseracing industry through individual penalties and systematic changes to the longstanding regulatory structure and revenue model. They argue that there will be financial costs so great that numerous participants will be driven out of business if the rules are enforced.”

On the other side, Doughty wrote, “Defendants argue there is no injury to Plaintiffs because 1) none of the alleged injuries have 'transpired over the two weeks in which the rules have already been in effect'; 2) the harms are self-inflicted under the rules; 3) there is not a challenge to the Act's scope; 4) the injuries derive from the Act enacted by Congress itself, not any of the implemented rules, and 5) the mere apprehension or fear of future harm does not establish a concrete injury.”

Doughty reconciled those conflicting viewpoints this way: “The applicable time period under this element is not whether the injury has occurred since the implementation of the rules, but whether it was imminent at the time the complaint was filed. While Defendants' argument that the injuries have not occurred and that the private Plaintiffs' fear of future injury might go to the success on the merits, they do not negate Plaintiffs' standing. Plaintiffs are challenging the legality of government action and are objects of said action. All Plaintiffs are participants in the horseracing industry, making them directly affected by regulation actions.”

Doughty wrote that the “fairly traceable” link requirement was straightforwardly accomplished by the plaintiffs.

The plaintiffs also had to prove the “redressability element of standing,” which requires demonstrating “a substantial likelihood” that the requested relief will remedy the alleged injury.

“Because Plaintiffs are challenging the legality of government action in the form of HISA and the FTC approving and implementing rules, Plaintiffs have demonstrated a substantial likelihood that the requested relief would remedy the alleged injuries in fact,” Doughty wrote. “If Plaintiffs are successful in having the HISA rules declared invalid, this would redress their alleged injuries.”

At a later point in the memorandum, Doughty wrote that “Obtaining a preliminary injunction is an 'extraordinary and drastic remedy'” that a movant is only entitled to if four factors are established.

They are: 1) a substantial likelihood of success on the merits; 2) the movant is likely to suffer irreparable harm without preliminary relief; 3) the possible injury to the movant outweighs the possible harm to the other party, and 4) an injunction is in the public interest.

“Plaintiffs have satisfied all four elements required for a preliminary injunction to be issued. After considering all factors, this Court has determined that a preliminary injunction shall be issued by Plaintiffs against the Defendants,” Doughty wrote.

The injunction shall be in effect, Doughty wrote, “pending the final resolution of this case,” adding that the final ruling could extend all the way up to an appeal before the United States Supreme Court.

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Mulling HISA Injunction, Judge Says No to Lengthy Hearing

After receiving back-and-forth written briefs from both parties on whether or not to impose a preliminary injunction that would halt the Horseracing Integrity and Safety Act (HISA) Authority's rules until a lawsuit challenging them gets decided in full, the judge in charge of the case on Friday denied a request by the plaintiffs to hold a potentially lengthy in-person hearing to debate the issue any further.

The plaintiffs, led by the states of Louisiana and West Virginia, plus the Jockeys' Guild and various Louisiana-based “covered persons” under HISA rules, had told the judge Thursday that it was imperative to allow them to plead their case for an injunction in person.

The plaintiffs wrote in a July 21 court document that they were prepared to produce at least 10 witnesses to testify to the “extreme level of disruption that the HISA rules are inflicting on the States, racing commissions, industry, and its participants.”

That witness list consisted of Louisiana-based horsemen's group and racing commission executives, plus racing officials, veterinarians, owners, trainers, jockeys, a state steward, and two Jockeys' Guild representatives. Some of the proposed witnesses were also plaintiffs in the case.

Judge Terry Doughty of U.S. District Court (Western District of Louisiana) wasn't persuaded that he needed to hear all of that testimony before making up his mind. Writing in a July 22 order, he stated that his pending decision on whether or not to grant a preliminary injunction will be based solely on the written pleadings.

The defendants, who consist of the HISA Authority, the Federal Trade Commission (FTC), and board members and overseers of both entities, are alleged to have violated the Fourth, Seventh and Tenth Amendments to the United States Constitution, plus the Administrative Procedure Act (APA), which governs the process by which federal agencies develop and issue regulations.

The defendants have already survived the plaintiffs' motion for a temporary restraining order that accompanied the original lawsuit. That complaint got filed two days before the July 1 effective date for the first phase of HISA's new rules that are now in effect nationwide.

At that time, Doughty wrote that “issuing a temporary restraining order regarding an Act of Congress would be inappropriate.” But he added that the asked-for preliminary injunction could still be a possibility.

The preliminary injunction question the judge must now decide is fundamentally different, but it still has the potential to halt HISA's rules like a temporary restraining order would have.

A temporary restraining order is generally an “emergency” type of injunction to ward off immediate harm, and it has an expiration date. A preliminary injunction, on the other hand, is often used to restrain a party from taking a certain action while a case is pending, and it usually remains in force until the case gets settled in its entirety.

On July 15, the HISA-led defendants wrote in a filing opposing the injunction that, “The vast majority of stakeholders in the horseracing industry recognize the need for uniform regulations and are cooperating with the Authority and the FTC to ensure a smooth transition to this new congressionally mandated regime. But a small contingent of outliers, including Plaintiffs, have long opposed the Act on policy grounds and are growing increasingly desperate in their attempts to thwart its implementation.”

Not so, responded the plaintiffs in their July 22 filing:

“The facts on the ground further expose the flaws in Defendants' description of the horseracing industry since July 1, when HISA's rules took effect. The industry is in chaos because of HISA's hastily adopted and imprudent regulatory scheme. The FTC shares blame for this chaos because it failed to provide proper oversight of a private, nonprofit corporation's takeover-by-regulation of the horseracing industry; its token consideration and rubberstamp approval of HISA's rules fall far short of the substantive and procedural consideration required,” the document stated.

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