HISA Rehearing Appeal Denied by Fifth Circuit

[Wandering Eyes]

The United States Court of Appeals for the Fifth Circuit has denied a motion from the Horse Racing Integrity and Safety Authority to either vacate the panel's finding or for a rehearing of their ruling that found HISA unconstitutional, according to a filing by the court today.

The brief order reads, “Appellees Jerry Black, Katrina Adams, Leonard Coleman, Nancy Cox, Joseph Dunford, Frank Keating, Kenneth Schanzer, and Horseracing Integrity and Safety Authority, Inc. have moved to vacate the panel's opinion in light of Congress's recent amendment to the Horseracing Integrity and Safety Act. They have also moved for panel rehearing on the same basis. The remaining Appellees—the Federal Trade Commission, Kelly Slaughter, Rohit Chopra, Noah Phillips, and Christine Wilson—have separately moved for panel rehearing, also based on the recent amendment. The motion to vacate the panel's opinion is DENIED. The motions for panel rehearing are DENIED. The case is REMANDED to the district court for further proceedings. Any further appeal will be to this panel. The mandate shall issue forthwith.”

Citing the year-end passage into law of a bill that included language giving the Federal Trade Commission (FTC) more rule-making authority in the Horseracing Integrity and Safety Act (HISA), officials from HISA and the FTC who are defendants in two lawsuits before the Fifth Circuit United States Court of Appeals filed four separate documents in early January seeking to vacate two opinions related to constitutionality issues and get rehearings in both cases.

In one lawsuit initiated by the National Horsemen's Benevolent and Protective Association (NHBPA) and 12 of its affiliates against personnel from the HISA Authority and the FTC, the Fifth Circuit ruled on Nov. 18 that HISA was unconstitutional because it “delegates unsupervised government power to a private entity,” and thus “violates the private non-delegation doctrine.” In this case, the defendants fired back with a pair of “emergency” motions and petitions Jan. 3.

Those filings essentially said that Congress and the President have done their parts to clear up any lingering constitutional ambiguity, and now the Fifth Circuit is obliged to do its duty to “say what the law is” with regard to HISA. The Fifth Circuit court disagreed with that ruling Tuesday, and said that all further appeals must be to the three-man panel who ruled it unconstitutional on Nov. 18.

This story will be updated.

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