In the appeals case regarding a potential Florida sports betting market, the written dust settled on Nov. 14. At this point, all three parties in the case submitted their briefs to the D.C. Court of Appeals.
West Flagler Associates is arguing to uphold the District Court opinion while the Department of the Interior wants it overturned. The Seminole Tribe of Florida is filing for limited intervention. They will file for case dismissal if the judges allow the intervention.
However, the Seminole Tribe would consider it a victory if their motion was denied, but the DOI won the appeals battle. Both parties have the same goal – reinstate the 2021 Florida gaming compact. The gaming compact is the key to relaunching the Florida sports betting industry.
The Nov. 14 deadline for filing is exactly one month before oral arguments. During oral arguments, we expect to see the two appellants, the Department of the Interior and the Seminole Tribe, make their case against the District Court’s ruling.
In November 2021, Judge Dabney Friedrich ruled in favor of West Flagler, the ownership group of two Florida pari-mutuels. As a result, Friedrich invalidated the compact. West Flagler filed suit over the ‘hub-and-spoke’ model for sports betting, which gave an essential monopoly to the tribe.
The Dec. 14 hearing will occur at 9:30 a.m. An audio stream should be available at this link for those interested in listening in.
In addition to confirming the hearing date, the D.C. Circuit Court of Appeals released the names of the judges that will be hearing oral arguments. Many like to read into how judges will decide cases based on the president’s affiliation that appointed the judge.
However, that is a difficult game to play with a case like this, which deals with a very specific piece of legislation and a case of first impression within the Circuit. With that said, the panel hearing the case includes:
- Judge Karen L. Henderson, a 1990 appointee to the D.C. Circuit of George H. W. Bush. Judge Henderson was first appointed to the federal bench in the District of South Carolina by Ronald Reagan in 1986.
- Judge Robert L. Wilkins is a Barack Obama appointee to the federal bench, first being appointed to the D.C. District Court in 2010, and then being elevated to the D.C. Circuit Court of Appeals in 2014. Following the death of Justice Antonin Scalia, Judge Wilkins was considered a possible nominee for the Supreme Court seat by President Obama, however, the seat would ultimately be filled by President Donald Trump
- Judge J. Michelle Childs was first appointed to the federal bench in the District of South Carolina by President Obama in 2010 and then elevated to the D.C. Circuit Court of Appeals by President Biden in 2022. Like Judge Wilkins, Judge Childs was once considered to be on the short list of potential Supreme Court nominees for the seat ultimately filled by Justice Ketanji Brown Jackson.
Reading the tea leaves
While I just cautioned about attempting to read too much into which judges hear the case, one decision by a member of the panel did catch my eye. The case of Soundboard Association v. FTC. The case is relevant because it involved the Administrative Procedure Act and a staff letter authored by the FTC. Ultimately, Judge Wilkins wrote a majority opinion that the staff letter was not subject to judicial review under the APA.
The case centered on whether the letter was final agency action, with the majority concluding it was not. The case at hand involves substantially different issues. However, both involve the APA.
Ultimately, the issues in the litigation over the Compact involve relatively novel issues that the D.C. Circuit Court of Appeals will have to address.
Looking at the key issues
It is important to remember there are effectively two appeals taking place. First, the Department of the Interior is appealing the District Court’s decision that the compact negotiated by the Seminole Tribe of Florida and Gov. Ron DeSantis, which temporarily brought sports betting to the Sunshine State, violated the Indian Gaming Regulatory Act. In her ruling, Judge Friedrich said allowing online betting to occur off tribal land violated the IGRA.
The Department of the Interior argues that the compact does not violate IGRA. They claim that although the compact discusses gaming that takes place offsite from tribal lands, it wasn’t done under IGRA. It was merely an ancillary subject included in the deal.
West Flagler has contended that the DOI’s interpretation of the compact not authorizing the mobile scheme is effectively linguistic gymnastics to justify a result that the government desires.
Indeed, as a reader, the government’s argument has sometimes been challenging to grasp. The good news for the DOI is that they have a clean slate with the Court of Appeals. While the D.C. District Court had several issues with counsel for the department, things seem to have been going much smoother at the Court of Appeals.
The Seminoles will focus on its ability to intervene in the case. The tribe will likely use its argument time to frame the discussion around the District Court erring in excluding the Tribe. Expect them to argue that Rule 19 of the Federal Rules of Civil Procedure requires them as a party.
By contrast, West Flagler’s legal team will argue that the District Court was correct in both its rulings and that they should be upheld.
What to expect at oral arguments?
We expect that each party will have ten minutes of oral argument time. That is an exceedingly short time, and the panel will likely hint at which issues they see as pertinent through their questions. Judges usually take between 6-12 months to make a decision once oral arguments conclude.