The Department of Justice (DOJ) has filed a response on behalf of the Department of the Interior (DOI) to West Flagler’s request for an en banc rehearing of the DC Circuit Court of Appeals ruling in the Florida sports betting case. That decision overturned the District Court and restored a 2021 Florida gaming compact allowing the Seminole Tribe of Florida to offer statewide online sports betting from servers housed on tribal land via its Hard Rock Sportsbook.
The response, requested by the US Court of Appeals for the District of Columbia following West Flagler’s petition, refutes the legal basis for a rehearing.
From the filing:
West Flagler’s arguments for rehearing are strawmen, premised on its erroneous assertion that, by referencing the state-sanctioned wagers, the Compact—and the Secretary’s approval thereof—purport to unilaterally legalize the placement of those wagers and the State regime for regulating them.
But, as West Flagler acknowledges, the panel held in no uncertain terms that the Compact does not do that.
The DOJ added the court made it “scrupulously” clear neither its opinion nor the Secretary’s approval stops West Flagler from challenging the relevant state law.
“Rehearing,” the filing states, “is unwarranted.”
With the response submitted, DC Circuit judges will determine whether a rehearing is required.
As the NFL season approaches, how fast that decision comes down will determine how soon the Seminoles relaunch online sports betting in Florida.
En Banc Request Latest in Years’ Long Case
The conflict between West Flagler and the DOI began in August 2021.
The operator previously behind Magic City Casino filed a lawsuit on behalf of itself and Bonita-Fort Myers Corp., operators of Bonita Springs Poker Room, against US Secretary of the Interior Debra Haaland.
The brick-and-mortar gambling houses took issue with Haaland for allowing a compact that included gaming on non-tribal lands.
In November 2021, Federal District Court Judge Dabney L. Friedrich ruled in West Flagler’s favor, finding the compact violated the Indian Gaming Regulatory Act (IGRA), which governs gaming on Indian lands.
However, on appeal, the DC Circuit Court found the District Court erred in its decision and overturned the ruling on June 30, 2023.
With the request for a rehearing en banc, West Flagler argued the opinion of the DC Circuit Court raised questions of “exceptional importance” about IGRA’s scope. The petition also claimed the ruling conflicts with precedents set in other circuits.
During a typical case, arguments occur before a three-judge panel. However, should the court grant the en banc rehearing, parties must repeat their arguments for the entire bench.
In the case of the DC Circuit Court of Appeals, that’s 11 judges.
Legal experts have said it’s unlikely that the court will grant a rehearing. But, as we’ve previously pointed out, the request serves a purpose even if it fails.
Thanks to an order accompanying the June ruling, the Seminoles can’t relaunch sports betting until seven days after the court responds to a rehearing petition.
So, although granting such requests is rare, the delay imposed by the order might be the objective.
Decision Determines What’s Next for Florida OSB
The last time the DC Circuit allowed a rehearing was in 2021. When a rehearing does happen, it’s more likely to be for a split decision.
In this case, the appeal court ruled 3-0 in the DOI’s favor. As a result, six of the remaining eight judges would need to approve the rehearing request for it to go ahead.
The court has also noted it would accept no further response from West Flagler. Therefore, presumably, a decision is close.
If the court rejects the rehearing request, the compact would take effect seven days later. In that case, a quick decision could see the Hard Rock Sportsbook operating in Florida early in the NFL regular season.
If the Circuit grants West Flagler’s request, Florida’s online sports betting return will likely remain on hold.
But, how long until the court renders a decision remains unknown. Despite the outcome, West Flagler seems inclined to keep up the fight.
To that end, the plaintiff can ask the DC Circuit to hold the mandate while it appeals to the Supreme Court. If that fails, they can, as noted by the Circuit Court, pursue the matter at the state level.
Conversely, the Seminoles could relaunch without the mandate, testing the court. But at this point, that seems unlikely.
Regardless, the DC Circuit’s next step will determine what’s next for online sports betting in the Sunshine State.
DOJ: Petition Should be Denied
As noted above, the office of Assistant Attorney General Todd Kim led the response to the rehearing request on behalf of the DOI.
Collectively, argued the filing, the plaintiffs are retail casinos who believe the State of Florida violated its constitution. They also claim the state engaged in unlawful discrimination by enacting a statute permitting the Seminoles to accept online sports bets from across the state.
As a result, the DOJ response said:
West Flagler responded by suing the Secretary of the Interior—who has no control over what gaming Florida permits on non-Indian land within its borders—because the Secretary did not disapprove a Tribal-State gaming compact addressing, among other topics, how the Tribe will treat state- sanctioned wagers placed from non-Indian land once received by the Tribe via servers located on Indian land.
What West Flagler has failed to do, the response continued, is explain how a customer’s online wager occurring outside Indian lands is “anything but directly related” to the receipt of that wager on tribal lands.
Further, the response noted that the Circuit Court’s opinion clarifies that the court should deny the rehearing request.
As a matter of law, the Compact does not render lawful any wagering outside Indian land, and West Flagler remains free to bring a challenge to the Florida statute that does authorize that wagering.
…any allegation that Florida’s regime offends equal protection must be raised in a lawsuit against Florida.
In conclusion, the 25-page response argued, “For these reasons, the petition should be denied.”