Fifth Circuit Rules No ‘Emergency’ Exists To Expedite HISA Motion

[Wandering Eyes]

The United States Fifth Circuit Court of Appeals ruled Thursday that it won't treat a request made by the Horseracing Integrity and Safety Act (HISA) Authority to vacate a recent HISA unconstitutionality order as an “emergency” that requires an expedited decision.

Instead, the Fifth Circuit told both the HISA Authority and a collective of plaintiffs led by the National Horsemen's Benevolent and Protective Association (NHBPA) that the case would proceed under the court's standard timetable, which gives the NHBPA and its 12 affiliates 10 days to file a response to HISA's motion.

The Dec. 29 passage into law of a bill that amended the operative language of HISA to fix a constitutional defect the Fifth Circuit had identified in its Nov. 18 anti-constitutionality order prompted the HISA Authority's Jan. 3 motion asking the Fifth Circuit to “vacate its opinion and the judgment of the Court forthwith to prevent the serious harms that mount each day [and to] rehear this case in light of the intervening congressional amendment ”

In response to the motion the HISA Authority made on Tuesday, the NHBPA had filed a same-day legal challenge that questioned whether a true “emergency” actually existed considering that “no crisis or irreparable harm justifies this accelerated treatment or a rushed briefing schedule.”

On Jan. 5, the Fifth Circuit agreed with the NHBPA, writing in an order that the HISA Authority's “request to treat the motion on an emergency basis is DENIED. [The NHBPA and its co-plaintiffs] are ORDERED to respond to Appellants' motion on or before Jan. 13.”

Lisa Lazarus, the HISA Authority's chief executive officer, briefly addressed the new law during a Thursday Zoom session with the media that had been scheduled prior to the Fifth Circuit's decision regarding the emergency status. Lazarus did not, however, want to speak on the record about any pending litigation involving HISA.

“We're delighted that Congress took the initiative to essentially correct the issue that the Fifth Circuit identified with the constitutionality of HISA, and so we're feeling obviously very optimistic about HISA's future,” Lazarus said.

“For me, 2023 is going to be all about building trust. Because I genuinely believe that if we can build trust with those constituencies that are resentful or resistant to HISA [then] we can achieve our objectives,” Lazarus said.

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