West Virginia | Horse Racing Free Tips

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.

The post Appeals Court Revisits Some Elements of HISA Stay Order appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

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).

The post HISA Seeks Stay After Louisiana, West Virginia Ruling appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

Restraining Order Denied In HISA Lawsuit

A federal judge has denied a motion for a temporary restraining order in a lawsuit designed to keep the Horseracing Integrity and Safety Act (HISA) rules from going into effect.

The order, dated June 30 but posted to the court docket on the morning of July 1, the effective date for HISA's implementation, was handed down in the aftermath of a 35-minute Thursday afternoon conference call that was hastily arranged at the urgent request of lead plaintiffs from the states of Louisiana and West Virginia in their suit against HISA and Federal Trade Commission (FTC) representatives.

“Participants discussed the Motion for a Temporary Restraining Order and Preliminary Injunction pending before the Court,” wrote Judge Terry Doughty of U.S. District Court (Western District of Louisiana). “Plaintiffs and Defendants both expressed their views on the pending motion. The Court also expressed its view, which is that issuing a temporary restraining order regarding an Act of Congress would be inappropriate.”

The plaintiffs had argued in court filings that a restraining order was needed to stave off the “irreparable harm” from “illegal rules” and the resulting “chaos created by HISA.”

The Department of Justice, representing the FTC, responded with its own court filing that stated the plaintiffs' “eleventh-hour challenge” to a set of HISA rules that have been publicly known to be going into effect for at least three months is “an emergency of their own making.”

The judge also wrote that the two-week briefing schedule set by the court on Thursday will “remain in effect with regard to the Motion for Preliminary Injunction. The Court will decide the Motion on briefs. If the Court determines that oral arguments are necessary in order to make its decision, oral arguments will be set.”

The post Restraining Order Denied In HISA Lawsuit appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

Feds: Last-Minute HISA Suit An ‘Emergency of Plantiffs’ Own Making’

A federal judge on Thursday opted not to immediately grant the “expedited consideration” restraining order or injunction that opponents of the Horseracing Integrity and Safety Act (HISA) alleged was needed to stave off the “irreparable harm” from “illegal rules” that are set to go into effect at midnight Friday.

But within several hours of learning June 30 that Judge Terry Doughty of U.S. District Court (Western District of Louisiana) had given HISA and other defendants two weeks to file a response to the restraining order motion, the lead plaintiffs from the states of Louisiana and West Virginia made a separate plea to the court, asking for an “immediate” status conference to address “the chaos created by HISA.”

The judge granted that request, and according to the court docket, a telephone conference was to have happened at 5:30 p.m. Eastern, some 6 1/2 hours before the first set of HISA rules was to go into effect. As of 7:30 p.m. Thursday, there were no notations within the docket that the court made any new orders as the result of that status conference.

For details on the new federal lawsuit filed June 29 that seeks to block the HISA rules from going into effect, click here.

“[T]hese issues are extremely urgent,” the plaintiffs stated in the motion requesting the urgent conference. “Plaintiffs face severe and irreparable harm if not granted a temporary restraining order before the legally deficient rules purportedly take effect tomorrow, July 1.”

The Department of Justice, which represents the Federal Trade Commission (FTC), one of the defendants in the case, stated in a June 30 filing that “The FTC Defendants oppose Plaintiffs' requests. The three rules Plaintiffs challenge were approved on [Mar. 3, Mar. 25, and Apr. 1], All three were stipulated to take effect on July 1 by statute. Plaintiffs' eleventh-hour challenge to those rules on the eve of the statutory deadline is therefore an emergency of their own making. Having waited three months to come to Court, Plaintiffs are not entitled to abrogate the two-weeks that the Court has already allotted Defendants for their response briefs.”

The post Feds: Last-Minute HISA Suit An ‘Emergency of Plantiffs’ Own Making’ appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post