An important appeal date for the fate of is fast approaching, as West Flagler has until Monday, Aug. 14, to officially appeal a U.S. Court of Appeals for the District of Columbia ruling that restored a 2021 Florida gaming compact.
West Flagler, the plaintiffs in the hearing, have until Monday to file a petition for an en banc hearing of the U.S. Court of Appeals decision. If they do not file a petition by Aug. 14, the official mandate restoring the Florida gaming compact will go into effect on Monday, Aug. 21. If restored, the Seminole Tribe will once again be able to launch its Florida sports betting services, along with craps and roulette in its Florida casinos.
But what are the odds that West Flagler will appeal the decision? Or take the issue to the Supreme Court of the United States (SCOTUS)? Daniel Wallach, a gaming law attorney, Founder of Wallach Legal and UNHLaw Sports Wagering, told Sports Betting Dime that he expects West Flagler to continue their fight in one way or another, but face long odds to have a rehearing request granted.
Florida Gaming Compact Restored After Ruling
In late June, a three-judge panel for the U.S. Court of Appeals for the the District of Columbia unanimously to overturn a ruling from U.S. District Court Judge Dabney L. Friedrich that declared a 2021 Florida gaming compact violated the Indian Gaming Regulatory Act (IGRA).
The gaming compact was thrown out by Friedrich in November 2021. Ultimately, Friedrich determined the compact violated the conditions set forth by IGRA that limits tribal gaming to the confines of tribal lands. The Seminole Tribe argued in the gaming compact that because the servers that processed the online sports bets were located on tribal land, then the bets themselves were placed on tribal lands.
The three-judge panel for the U.S. Court of Appeals for the the District of Columbia disagreed with her ruling.
“We see the case differently. IGRA ‘regulate[s] gaming on Indian lands, and nowhere else.’ Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 795 (2014). Thus, to be sure, an IGRA gaming compact can legally authorize a tribe to conduct gaming only on its own lands. But at the same time, IGRA does not prohibit a gaming compact—which is, at bottom, an agreement between a tribe and a state—from discussing other topics, including those governing activities “outside Indian lands[.]” Id. at 796. In fact, IGRA expressly contemplates that a compact ‘may’ do so where the activity is ‘directly related to’ gaming,” the judges wrote in the ruling.
West Flagler has options moving forward if they hope to continue their legal fight. The District Court specifically noted in its ruling that the plaintiffs could take the issue to Florida State Court. The plaintiffs can also apply for an en banc hearing of the U.S. Court of Appeals decision or appeal to the Supreme Court of the United States to hear the case.
But will West Flagler continue their fight?
Appeal From West Flagler Likely
Wallach today spoke at length with Sports Betting Dime about the potential for an appeal from West Flagler. The gaming law attorney said an appeal is a no-risk play for West Flagler and he expects them to file with both the U.S. Court of Appeals and Supreme Court moving forward.
If West Flagler does nothing, they ll face immediate competition by virtue of online sports betting being activated in the state[ ]there is very little downside to an appeal and there s no risk. It s an insignificant cost compared with what they ve already spent fighting this. If they re already in this far, I don t see the logic of conceding at this point, Wallach said.
There could be more support for West Flagler s legal position in this matter than there is for the D.C. Circuit ruling, he said. The hook, or logic, that the D.C. Circuit used in concluding that the compact addresses internet wagering as a permitted term is inconsistent with decisions made by federal appeals courts in the ninth circuit, 10th circuit, and D.C. Circuit.
SCOTUS may have interest in hearing the case if West Flagler goes that route, Wallach said. The D.C. Circuit court ruling may have triggered a number of grounds that would appeal to a SCOTUS hearing.
If West Flagler chooses to not appeal the U.S. Court of Appeals decision, it will have until Sept. 30 to request a writ of certiorari with SCOTUS.
This is an unsettled question of law. Ultimately, the question of whether the Indian Gaming Regulatory Act applies to tribal gaming outside of Indian lands is a question that has been wrestled with in a number of previous federal court decisions. The confusion over this issue has prompted proposed federal legislation. Two times this has prompted the Department of Interior to propose new rules recognizing that compact s can includes provisions for online sports betting, he said.
The conflict around this issue will not subside with the D.C. Circuit s decision and it is doubtful that it will be the last federal appeals court to weigh in on the issue unless heard by SCOTUS, Wallach said.
That conflict (IGRA vs. online gaming on tribal land) has never been resolved and I think this is the perfect opportunity for the U.S. Supreme Court to bring certainty and clarity to this issue, which has resulted in all these efforts to change or reinterpret IGRA. If the Supreme Court doesn t weigh in now, the federal court system will be inundated with further challenges down the road, Wallach said.
The conflict around this issue will not subside with the D.C. Circuit s decision. It is doubtful that it will be the last federal appeals court to weigh in on the issue, he said.
Odds Are Steep if an Appeal Is Granted
But just because the plaintiff appeals for a rehearing or asks for a hearing in front of SCOTUS does not mean it will be granted, Wallach said.
En banc hearings are rarely granted by the U.S. Court of Appeals, Wallach said, as the court typically grants only one review for every 500 three-judge panel decisions. An en banc hearing has not been granted since 2021, he noted.
The interpretation of a gaming statute is not on par with the kinds of issue the D.C. Circuit would typically grant a rehearing on. These are issues that present important federal constitutional questions, separation of power type issues, and this doesn t strike me as the kind of case that reaches the threshold of being an issue of exceptional importance, Wallach said.
West Flagler may have a better chance at having a hearing with SCOTUS, but those are still long odds. Wallach said SCOTUS typically hears between 60 to 80 cases a year, but receives many more positions.
60 slots versus one slot. You do the math. You look at the scope of what the Supreme Court grants writ of certiorari on and I think this has a decent chance of bucking the odds. Because, this issue is a recurring one that will not go away anytime soon, particularly if other states and tribes utilize the Florida compact as a blueprint, he said.
SBD will update the story with more information as the Monday, Aug. 14 deadline draws near.
