Judge Denies Injunction to Serpe a Second Time, but Adds ‘Race is Far from Over’ in Trainer’s Lawsuit Against HISA and FTC

[Wandering Eyes]

Trainer Phil Serpe, who is fighting both in federal court and at the Federal Trade Commission (FTC) appeal level to overturn a two-year suspension imposed by the Horseracing Integrity and Welfare Unit (HIWU) over a contested clenbuterol positive in one of his trainees at Saratoga Race Course in 2024, on Thursday had the judge in his lawsuit deny a request for a preliminary injunction for the second time in five months.

In explaining his decision, the judge in charge of the case, David Leibowitz of United States District Court (Southern District of Florida), wrote in his Oct. 30 order that, “Serpe has twice been denied advantage at the early turns, but the race is far from over.”

The judge further signaled that the 66-year-old trainer could end up prevailing in his overall lawsuit against the FTC and the Horseracing Integrity and Safety Authority (HISA), by writing that while Serpe “may ultimately win the race, two obstacles stop him from getting a preliminary injunction.”

Those obstacles, the judge explained, are 1) “Serpe does not face a threat of imminent irreparable harm” and 2) “Serpe has not demonstrated a substantial likelihood of success on the merits.”

Serpe's suspension stems from clenbuterol detected in the urine of Fast Kimmie (Oscar Performance) after her Aug. 10, 2024, victory in a $30,000 claiming race. Clenbuterol is classified as a “banned” substance, meaning it is never to be present in any HISA-regulated Thoroughbred.

A key issue in Serpe's case is the fact that HIWU and HISA did not pursue any monetary fine against him, which is a departure from how the agencies handled a dozen other clenbuterol detections since the Anti-Doping and Medication Control Program (ADMC) went into effect in May 2023.

Serpe has claimed that the non-pursuit of a fine of up to $25,000 by HISA and HIWU is an alleged end-around to stymie his efforts to prove in his lawsuit that he has been wrongfully denied a constitutional right to a jury trial.

Citing a U.S. Supreme Court case that previously ruled that a federal regulatory agency's enforcement for civil monetary penalties must be brought in a federal court, Serpe asserted in a July 15 legal filing that his Seventh Amendment rights are being violated by “gamesmanship” in the form of HISA and HIWU's non-pursuit of a monetary penalty, a move that he alleged “strategically” seeks to deprive federal-court jurisdiction over the facts of liability required for any sanction.

On Aug. 15, both HISA and the FTC responded by filing legal documents opposing Serpe's renewed motion for a preliminary injunction, stating that so long as no fine was part of Serpe's penalties, the judge should not grant the trainer any requested relief based on what HISA and the FTC say is a non-valid Seventh Amendment claim.

“Plaintiff accuses the Authority of engaging in 'gamesmanship' by withdrawing its initial request for a fine,” that Aug. 15 HISA legal filing stated. “But Plaintiff is the only one playing games.”

Beyond the year-old federal lawsuit that now seems certain to extend into 2026, the case has also been handled at the administrative level by HISA and HIWU.

Serpe has already appealed his penalization before a HIWU arbitrator and the administrative law judge (ALJ) assigned by the FTC, and as part of an FTC order dated Sept. 15, the FTC will be undertaking a “further review” of the case.

In the Oct. 30 court order, Judge Leibowitz wrote that, “what happened to [Serpe] in the wake of Fast Kimmie's win goes to the constitutional core of the American judicial system.”

Leibowitz then explained his reasoning for denying the injunction a second time. (The May 29 order denied the injunction “with prejudice” as to HISA. Thursday's order pertained to the FTC, the judge wrote.)

“The problem for Serpe at this stage of the litigation is that his suspension is disconnected from the basis of his Seventh Amendment challenge, a disconnect that Serpe himself has acknowledged,” the judge wrote.

“Serpe has previously conceded that the only legal relief at issue here is the monetary penalty, and he has explained that a Seventh Amendment violation would occur, if at all, only once the ALJ had imposed a monetary penalty,” the order stated.

The judge continued, at a different point in the order:

“To obtain a preliminary injunction, Serpe also must demonstrate a substantial likelihood of success on the merits of his claim. At this stage of the litigation, Serpe fails on this front as well–because of an issue underneath his Seventh Amendment claim that he addresses only cursorily in his motion.

“In particular, Serpe does not explain how his Seventh Amendment claim withstands his assent to the Covered Person Agreement–a prerequisite to his and Fast Kimmie's participation in the Aug. 10, 2024, horserace at Saratoga,” the order stated.

In essence, the judge wrote, because Serpe had opted into the HISA program by registering as a “covered person” who trains a “covered horse,” he is bound by the HISA rules that require him to agree to arbitrate any anti-doping rules violation dispute.

“In the Renewed Motion [for injunction], Serpe summarily states that he did not waive his Seventh Amendment right when he agreed to arbitration,” the judge's order stated. “He cites only two cases in support of his argument, and he complains that 'the Authority never attempted to defend the enforceability of the ADMC Program as an “arbitration agreement”' and, by extension, as a waiver of Serpe's Seventh Amendment rights in this circumstance.

“Serpe's cursory treatment of this issue dooms his request for a preliminary injunction, as it is his burden to prove all four [legal factors necessary for an injunction], and his entering into the registration agreement was clearly raised by the Defendants to this Court,” the judge wrote.

Judge Leibowitz then summed up the issue and outlined the next steps in the court case.

“This Court is not suggesting that Serpe's Seventh Amendment claim on the merits is doomed (the Court takes no position on the issue until it has been fully briefed and considered); instead, the Court concludes only that on this procedural posture Serpe's failure to show that he did not forfeit his Seventh Amendment claim means he has failed to meet his burden to show a substantial likelihood of success to obtain a preliminary injunction,” the order stated.

“The Court underscores that these early rulings turn largely on the standards governing such requests for extraordinary relief. On the merits, the parties have not yet perfected the factual record and fully briefed important substantive issues. The Court, therefore, directs the parties to submit a joint proposed schedule [by Nov. 28] for expedited discovery followed by a full briefing schedule for summary judgment motions on all issues of law,” the judge wrote.

Attempts to contact Serpe's legal team and the FTC for comment on Thursday's order did not yield replies prior to deadline for this story.

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