After months of waiting, briefs will finally be filed later this week in the Florida sports betting appeal.
The original case questioned the legality of the Florida gaming compact between the state and Seminole Tribe. Ultimately, a federal judge ruled that the agreement violated the Indian Gaming Regulatory Act. Therefore, the shortlived Florida sports betting market ceased operations.
As a result, the tribe and the Department of the Interior are appealing the ruling. This week’s filings are the first step of the appeals process. The opening round of briefs will come from both the DOI and the Seminole Tribe on or before Aug. 17.
The federal government will respond to the Seminole Tribe’s brief on Oct. 3. West Flagler Associates, the ownership group of a pair of Florida pari-mutuels, will answer both briefs on Oct. 6. West Flagler was the plaintiff in the original case.
Anyone looking to file an amicus brief must do so by Oct. 13, and they are limited to just 6,500 words.
How we got to this point
In August 2021, the DOI approved the compact between the state and the Seminoles. The compact allowed the Seminole Tribe to offer mobile sports betting throughout the state. Additionally, it expanded gaming options at both pari-mutuel facilities and Seminole-owned casinos.
The compact also provided a mechanism for pari-mutuel operators throughout the state to enter into partnerships with the tribe to offer sports betting. However, the terms of this arrangement were unsatisfactory to some. West Flagler Associates, which operates Magic City Casino and Bonita Springs Poker Room, filed suit over the sports betting model.
- West Flagler Associates had the necessary legal standing to challenge the decision of the Department of the Interior to allow the compact to come into force.
- The Seminole Tribe was not an indispensable party to the litigation; therefore, the failure to have them as a party did not mean that the case could not proceed.
- The meat of the decision, however, was that the Indian Gaming Regulatory Act (IGRA) does not permit the mobile scheme authorized by the compact as it allows for mobile gaming off of “Indian lands.”
- Finally, Judge Friedrich ruled that the failure of the mobile provision rendered it necessary to vacate the entirety of the compact, instead of simply excising the infringing portions.
By invalidating the compact, Judge Friedrich’s decision reinstated the previous gaming compact agreed to in 2010.
What does the bench look like for the appeal?
The D.C. Court of Appeals will have a three-judge panel to hear the arguments.
- Judge Patricia Millett is a 2013 appointee to the Court of Appeals by President Obama. Millett was at one time viewed as a potential Supreme Court nominee. She formerly headed up the Supreme Court practice group at the major law firm, Akin Gump. She also has a black belt in Tae Kwon Do and, at one time, was a contributing blogger on the Supreme Court tracking website SCOTUSBlog.
- Judge Judith Rogers is a 1994 President Bill Clinton appointee to the D.C. Court of Appeals. She filled the vacant seat left by Justice Clarence Thomas being confirmed to the Supreme Court.
- President Obama appointed Judge Robert Wilkins in 2014. Judge Wilkins is a former public defender. Interestingly, he clashed with Judge Millett in 2018 over the scope of the Administrative Procedure Act, which is the basis for West Flagler’s claims.
Last June, a trio of judges appointed by President Trump dismissed the Monterra case against the Florida gaming compact. The makeup of this panel is vastly different.
What can we expect from the Department of the Interior’s brief?
The DOI will likely make a two-pronged attack in their upcoming filing.
Firstly, the agency will likely defend the job it did to represent the interests of the Seminole Tribe of Florida. However, its focus will likely be on West Flagler Associates’ standing to bring this lawsuit in the first place. The decision of Judge Friedrich granting the company standing focused on the economic injury purportedly sustained by West Flagler due to the compact coming into force.
The second focus of the Interior’s brief is likely to center around the agency’s approval process and that the agreed-upon terms of the compact and designation of the location of a bet occurring are compliant with IGRA.
The Seminole Tribe’s likely arguments
The Seminole Tribe will likely argue that they are an indispensable party to this litigation, and the Department of the Interior cannot adequately represent their interests. If the argument prevails, that would likely spell the end of the litigation, as if they are added, they would cite their sovereign immunity as the reason for why they cannot be sued, and that would effectively spell the end of the litigation.
What to make of this?
These predictions, or perhaps more accurately, these educated guesses of what we will see in the upcoming briefs, are mere speculation. But, these briefs are stage setting. The court’s timeline for these filings indicate a resolution won’t happen until at least early 2023.
We expect the DOI to come out with a stronger argument for the legal basis for their decision to allow the compact to come into force. Judge Friedrich poked several holes in the reasoning used to justify the decision to allow the compact to take effect. We will know exactly what is in the briefs in just a few days.