U.S. Fifth Circuit Court of Appeals declines to re-hear HISA case

The U.S. Fifth Circuit Court of Appeals ruled Tuesday that it would not re-hear a case involving the constitutionality of the Horseracing Integrity and Safety Authority and remanded the case to a lower court.

The ruling rejected a motion by HISA for the court to reconsider its ruling because of a one-paragraph federal amendment to HISA’s 2020 enabling legislation that passed late last year as part of an omnibus spending package. HISA was seeking the re-hearing in the Fifth Circuit in the hopes that the amendment would prod the court to reconsider its November ruling that HISA’s enabling legislation was “facially unconstitutional” because of violations to the non-delegation clause.

In denying the motion for a re-hearing, the court remanded the case to the Northern District of Texas, which had earlier dismissed the constitutional challenges to the suit. That court will now consider the case again in light of the amendment that was passed late last year. Supporters of the amendment believe that it ironed out the constitutional problems outlined in the Fifth Circuit ruling, but plaintiffs in the suit said that the amendment did not address all of the constitutional problems identified in the ruling.

In its ruling, the Fifth Circuit said that “any further appeal will be to this panel.”

Tuesday’s ruling was released approximately one week after the Federal Trade Commission, the overseer of HISA, posted the rules for HISA’s anti-doping and medication programs on its website. The posting triggered a 14-day public comment period and a 60-day approval period for the rules. HISA was hopeful that the FTC would be able to go forward with the approval process due to the amendment, but the Tuesday ruling will likely establish a legal hurdle to those plans.

Late last year, the FTC declined to approve HISA’s first batch of rules governing the anti-doping programs, citing the “legal uncertainty” created by the November Fifth Circuit opinion calling HISA’s enabling legislation unconstitutional.

Still, HISA said in a press release on Tuesday night that the authority “will continue enforcing the Racetrack Safety Program and preparing for the implementation of its Anti-Doping and Medication Control Program on March 27, subject to the Federal Trade Commission’s approval of the rules.” The Racetrack Safety Program was implemented last summer after FTC approval of the program’s rules in the spring. It is separate from the anti-doping and medication control program.

The plaintiffs that challenged the constitutionality of the enabling legislation included the National Horsemen’s Benevolent and Protective Association, along with a number of its affiliates. In a statement released after the ruling on Tuesday night, Eric Hamelback, chief executive of the National HBPA, praised the decision by the Fifth Circuit to reject HISA’s motion for a re-hearing of the case.

"We view this as additional strong evidence as to the valid concerns we have been raising all along and this should remind everyone that constitutionality isn’t optional,” Hamelback said. “We have made it very clear that the one-sentence so-called fix tucked into Congress’ must-pass year-end spending bill did not address all the legal questions created in the HISA corporation’s enabling legislation.”

Hamelback added that he believed that the FTC “must wait on the outcome of ongoing litigation to be resolved” before considering the anti-doping and medication control rules for approval, which could delay the program indefinitely.

A similar case challenging the constitutionality of HISA is before the U.S. Sixth Circuit Court of Appeals, which in January asked the parties in the suit to file briefs examining the legal impact of the passage of the amendment. The Sixth Circuit has yet to rule on the appeal. The case had earlier been dismissed by a lower court in Kentucky in 2022.