After a somewhat surprising ask from the D.C. Circuit Court of Appeal requesting a response to West Flagler Associates’ petition for rehearing en banc, the Department of the Interior (DOI) filed that response and recommended that the appellate court kick the Florida sports betting petition to the curb.
A mere 11 days after the response, the entirety of the D.C. Circuit Court of Appeals denied the rehearing. The clock is now kicking as sports bettors in Florida need to wait for at least seven days after this petition is resolved before the Seminole Tribe of Florida can turn the lights back on for Hard Rock Bet.
In theory, mobile FL sports betting could be back up in time for Week 3 of NFL betting, and a turning-over at the top of the ACC as Florida State faces off against Clemson in Week 4 of the college season.
While the D.C. Circuit Court of Appeals rejection was expected, just about everyone expects West Flagler to file a petition at the Supreme Court. West Flagler has 90 days to file a petition at the Supreme Court.
Quick look at brief from the feds
The government’s answering brief (widely reported that it was filed by the Seminole Tribe of Florida, but it was filed by the DOI) was limited to 3,900 words. The short brief got straight to the heart of its point in the second paragraph arguing:
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. And the panel did so while making scrupulously clear that neither its opinion nor the Secretary’s approval prevents West Flagler from challenging the relevant State law in Florida’s courts. Rehearing is unwarranted.
The government’s brief fairly explicitly argues that the three-judge panel, which unanimously reversed the opinion of District Court Judge Dabney Friedrich, did not leave the petitioners without options. But the options remaining to West Flagler reside within the state court system in Florida, not the federal court system in D.C.
The denial of rehearing
The denial of the en banc petition is a single sentence:
Upon consideration of appellees’ petition for rehearing en banc, the response thereto, and the absence of a request by any member of the court for a vote, it is ORDERED that the petition be denied.
The decision was issued as a per curiam order, meaning that there was no individual author; the order is from the entirety of the panel. The decision spells the end of the case’s time in the D.C. Circuit, though it appears highly likely that the case will proceed in the coming months in the city, at least until the Supreme Court votes on whether to hear a final appeal.
What next in Florida sports betting?
The short order issued by the Court left readers to believe that the arguments made in the brief authored by the DOJ and signed by DOJ attorney Rachel Heron, which laid out in no uncertain terms that the federal government did not believe that this matter should be reheard by the entire panel of Circuit Court of Appeals judges, was convincing. An en banc rehearing is incredibly rare.
The fact that the Court requested a response to the petition was undoubtedly a small glimmer of light for West Flagler Associates, but it proved to be nothing more. Ultimately, the odds of having the Supreme Court hear the case are stacked against the South Florida-based gaming magnates. The Supreme Court typically hears about 1% of the cases that it receives petitions for, and the current composition of the Court has been hearing even fewer cases than in the past.
When could sports betting in Florida restart?
For Florida sports bettors, the order likely means one more week of waiting. Regulated sports betting was not there for NFL Week 1 and will not be here for Week 2. And in all likelihood, it will not be here for Week 3.
While there is not yet an official word, bettors can expect that Hard Rock Bet will be taking bets in short order in the Sunshine State.
For those looking ahead, it seems highly probable that West Flagler will appeal; after all, they have little to lose in asking the Supreme Court to hear the case. One aspect to watch is how West Flagler frames the questions they ask the Supreme Court to resolve in any petition. While this Court’s composition, led by Justice Neil Gorsuch, has garnered attention for its numerous decisions in favor of tribes or tribal interests, the biggest challenge will likely be getting the Court to agree to hear the case, as four judges need to vote to hear any petition to the Supreme Court.
