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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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In the aftermath of a federal judge's ruling earlier this week that will keep the Horseracing Integrity and Safety Act (HISA) rules from going into effect in Louisiana and West Virginia while a lawsuit challenging those regulations is pending, the HISA Authority responded Friday with a series of legal actions that attempt to both reverse and clarify that injunction order.

The most significant of the July 29 filings from the HISA Authority defendants was a notice that they are appealing Judge Terry Doughty's July 26 decision to grant a preliminary injunction to the plaintiffs, who are led by the states of Louisiana and West Virginia, plus the Jockeys' Guild. This new appeal will be heard by the United States Court of Appeals for the Fifth Circuit.

At the same time, HISA asked Doughty for an emergency stay that would stave off the injunction he ordered just 72 hours earlier.

“The Court's order constitutes judicial overreach,” the HISA defendants argued, questioning how Doughty arrived at his decision to enforce an injunction.

“Although the Court purported to conduct a standing analysis, it did not analyze standing or ripeness as to each individual challenged rule,” the HISA filing stated.

HISA continued: “The Court thus invalidated the Federal Trade Commission (FTC)'s racetrack safety, enforcement, and assessment methodology rules in their entirety without ever assessing how any particular rule injured (or imminently risks injuring) Plaintiffs. The Court's resulting advisory opinion is also deeply flawed on the merits.”

Acting swiftly, Doughty responded to the defendants' 38-page filing within two hours on Friday morning. He required barely more than a single page to firmly assert “no” to HISA's request to put the regulations back into effect in Louisiana and West Virginia until the Fifth Circuit ruled on the new appeal.

“[T]his Court, for the reason more fully set out in the [preliminary injunction ruling], believes that the likelihood of Authority Defendants' success on the merits is low,” Doughty wrote in his July 29 denial. “This Court further finds Authority Defendants will not suffer irreparable harm if a stay is not entered. This Court further finds that other parties will be harmed if the stay is granted.”

Doughty then added a terse warning apparently aimed at letting the Authority know he believes there are flaws in its rulemaking process, which is at the heart of the overall lawsuit.

“Further, HISA has not yet adopted rules addressing the horseracing anti-doping and medication program,” Doughty wrote. “HISA has time to address any constitutional authority issues and procedural issues under the Administrative Procedures Act (APA) in re-drafting and re-noticing rules related to a Racetrack Safety Program.”

The HISA defendants are alleged in the June 29 suit to have violated the Fourth, Seventh and Tenth Amendments to the U.S. Constitution, plus the APA, which governs the process by which federal agencies develop and issue regulations.

The third court action undertaken by the HISA defendants Friday was a request for a clarification of Doughty's July 26 order, specifically the section that stated, “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,”

That clarification request was a direct response to a claim articulated by the Jockeys' Guild in a Wednesday press release that interpreted the judge's words to mean that the injunction “applies to all of the members of the Jockeys' Guild, regardless of the U.S. jurisdiction in which the jockey is riding.”

The HISA defendants stated that's not the proper interpretation.

“Plaintiffs have asserted that the Order extends to all of Plaintiffs' members nationwide,” the HISA filing argued. “But the members of the [Guild] are plainly not Plaintiffs in this case. And Plaintiffs' reading would wreak havoc on the sport. For example, many jockeys are not Guild members, such that different rules would apply to jockeys riding in the same race.”

The HISA Authority wants the judge to explicitly state that the injunction “applies to the implementation of the challenged rules as to Plaintiffs only and not as to [Guild] members nationwide.”

Technically, as listed on the original June 29 lawsuit, the state and organizational plaintiffs are the states of Louisiana and West Virginia, the racing commissions in both states, the Louisiana Horsemen's Benevolent and Protective Association, the Louisiana Thoroughbred Breeders Association, and the Jockeys' Guild. The only individual plaintiffs are five Louisiana-based “covered persons” under HISA rules, and only one, Gerard Melancon, is an active jockey.

The defendants consist of the HISA Authority, the FTC, and board members and overseers of both entities.

Notably, the FTC and its individually named defendants were not listed alongside the names of the HISA defendants who moved for the appeal, the stay, and the clarification in the July 29 filings.

The post HISA Appeals Injunction, But Judge Says No to Reversing Earlier Order appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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