HISA files for re-hearing of Fifth Circuit decision

The Horseracing Integrity and Safety Authority has asked a U.S. District Court to reconsider a ruling calling the organization “facially unconstitutional” in the wake of Congressional action at the end of the year amending the authority’s enabling legislation.

HISA and its overseeing federal agency, the Federal Trade Commission, asked for the reconsideration in several filings on Tuesday to the U.S. Fifth Circuit Court of Appeals, which issued the ruling on Nov. 18 that called into question the authority’s constitutionality and sent HISA into legal limbo. Since the ruling, legislators added an amendment to HISA’s enabling legislation seeking to clarify the FTC’s role in overseeing HISA. The omnibus legislative package containing the amendment was passed Dec. 23 and signed by President Biden.

“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 filing by HISA and FTC stated.

The filing went on to state that “Congress heard this court’s concern and acted swiftly to resolve it” while calling the foundation of the court’s opinion “predicated on a prior version of HISA that no longer exists and that Congress purposefully replaced.”

The Fifth Circuit ruling put HISA’s plans to launch its anti-doping and medication control program on the backburner indefinitely. The program was set to be implemented in a dozen states on Jan. 1. If the ruling is not stayed, it will go into effect in the three jurisdictions covered by the court – Texas, Louisiana, and Mississippi – on Jan. 10, when the court is expected to issue a so-called “mandate” to enforce its decision.

The Fifth Circuit heard the case after a lower court in Texas dismissed a challenge to the constitutionality of HISA filed by the National Horsemen’s Benevolent and Protective Association and most of its affiliates. Separately, the U.S. Fourth Circuit Court of Appeals also has heard a challenge to a lower court’s decision upholding HISA’s constitutionality, and that court is expected to issue a ruling in the next several months.

Separately on Tuesday, the FTC issued an order clarifying that its previous approval of HISA’s safety regulations remained in force. Those rules went into effect on July 1 and were not impacted by the Fifth Circuit ruling.

In December, the FTC had declined to issue its approval of the rules in HISA’s anti-medication and doping control program, citing the Fifth Circuit decision. The program would shift the responsibility for drug sampling, drug testing, and enforcement of drug and medication violations from racing commissions to HISA.