Serpe Clenbuterol Case Reaches Legal Inflection Point

[Wandering Eyes]

In its ongoing case against Philip Serpe for a Clenbuterol positive stemming from last August, the Horseracing Integrity and Welfare Unit (HIWU) will not pursue a fine against the trainer–what could have been a $25,000 penalty–as per a letter issued by the agency last week.

Serpe, however, argues that this action was taken by HIWU to prejudicially stymie his legal efforts in a federal court case against the Horseracing Integrity and Safety Authority and the Federal Trade Commission (FTC), which includes the contention that he has been wrongfully denied his Seventh Amendment right to a jury trial.

In a joint motion filed last week, attorneys for the FTC and the HISA Authority wrote that the lack of a monetary fine in the case “moots Plaintiff's Seventh Amendment claim and removes any risk of cognizable harm with respect to it.”

As such, “The Court should dispose of Plaintiff's Seventh Amendment claim, and Plaintiff's motion for a preliminary injunction relating to that claim,” they wrote.

In his response, Serpe's attorneys argue that the defendants' “late-stage motion should be seen for what it probably is–part of a concerted effort with HIWU to prejudicially moot Serpe's claims during the pendency of this case. Defendants' motion should be swiftly and soundly rejected.”

In this filing, Serpe's attorneys contend that he is unaware of any other anti-doping and medication control case in which HIWU has “voluntarily decided” not to seek a fine against a charged person. He also alleges an “alignment” of actions between HIWU's enforcement decisions and the defendants' litigation.

The FTC is charged with overseeing the HISA Authority, including ensuring “transparency and integrity” in the Authority's operations.

“HIWU has again made a decision that is obviously intended to moot Serpe's requests for relief–almost as if Defendants need HIWU not to seek a fine to defeat Serpe's Seventh Amendment claim and/or remedy the irreparable harm that Serpe is suffering,” Serpe's attorneys wrote in the filing.

HISA spokesperson Mandy Minger wrote in an email that the agency would not comment on the matter.

On Aug. 10 last year, the Serpe-trained Fast Kimmie won a four-horse, off-the-turf $30,000 claimer at Saratoga for owner WellSpring Stables.

The A and B samples both confirmed the detection of Clenbuterol, a controversial bronchodilator that HISA has classified a “banned” substance, though it remains permitted under very specific uses. HIWU reportedly denied Serpe's request for hair testing and DNA analysis in the case.

On Oct. 10, HIWU formally issued Serpe a charge letter for the alleged violation. One week later, Serpe filed suit against the FTC and the HISA Authority in the United States District Court (Southern District of Florida).

In that suit, Serpe claimed that HISA and its regulations are unconstitutional–a claim underpinning a series of lawsuits aiming to strike down the federal law. HISA's constitutionality is expected to be decided either later this year or next year by the U.S. Supreme Court.

Serpe also argued that HISA violates his Seventh Amendment rights, in part because anti-doping and medication control cases under HISA have legal parallels with cases of fraud requiring jury trials.

The attorneys for the FTC and the HISA Authority have fought back against these claims.

In a January response to Serpe's motion for preliminary injunction, they argued that the Seventh Amendment claim is not “ripe,” a legal term meaning that it rests upon future events that may or may not occur.

“Plaintiff cannot say whether there will be any subsequent government proceeding to which the Constitution applies. Even if there is, the type of remedy that will be reviewed there–an 'all but dispositive' Seventh Amendment consideration,” the attorneys wrote, “remains unknown.”

While HIWU initially served a provisional suspension against Serpe–as was protocol at the time in cases involving banned substances–the following month, the HISA Authority asked HIWU to limit the circumstances in which it imposed these suspensions.

As a result, Serpe was one of the trainers who last November saw their provisional suspensions lifted, allowing him to return to training.

This month has seen a flurry of legal actions in Serpe's federal lawsuit. This includes oral arguments on April 10 on his motion for preliminary injunction.

The following day, the court ordered the parties to file supplemental briefs on whether the FTC had waived sovereign immunity “as to the recovery of damages for constitutional injuries suffered by persons subject to enforcement actions under the Horseracing Integrity and Safety Act.”

In their joint motion last week that asked to “dispose” of Serpe's Seventh Amendment and preliminary injunction claims, the attorneys for the FTC and the HISA Authority asked that the court either vacate the order for supplemental briefs, or to extend the deadline.

Because HIWU no longer intends to issue a fine against Serpe, thereby removing “any risk of cognizable harm,” there is no longer “any need to litigate this issue,” they wrote.

In his response, Serpe's attorneys asked the court to deny this request as the “defendants know they are vulnerable, if not likely to fail, on Serpe's Seventh Amendment Claim,” and that they “appear to be working with HIWU to do everything they can to avoid the Court's ruling.”

Serpe also lists a series of other legal requests covering a set of eventualities.

This includes how, if the court finds the FTC is not entitled to sovereign immunity or that the trainer is not suffering irreparable harm, “the Court simply convert his preliminary injunction motion papers into a motion for summary judgment.”

Alternatively, Serpe's attorneys write, “if the Court finds that Serpe's Seventh Amendment claim is not ripe for summary judgment because the arbitration is not concluded, then Serpe respectfully requests that the Court withhold ruling on the motion for summary judgment until the arbitration is concluded, at which time the parties can submit the arbitration record and the Court can rule as a matter of law on summary judgment.”

Serpe's arbitration hearing in this case is reportedly scheduled for June 5 and 6.

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