The District of Columbia Court of Appeals issued its order last Friday, denying the Seminole Tribe of Florida’s motion to stay the D.C. District Court’s ruling that the 2021 Compact violates the Indian Gaming Regulatory Act (IGRA) it raised a lot of questions.
The first and most prominent question was whether the Seminole Tribe would shut down the Hard Rock Sportsbook app, which had continued taking deposits and wagers after the District Court issued its decision the week before. An answer to that question came Saturday morning when a message was posted to the Hard Rock Sportsbook Twitter page.
Hard Rock Sportsbook shuts down
The Hard Rock Sportsbook announced on Dec. 4 that as a result of the appellate court ruling, they would:
- No longer accept new bets, deposits, or accounts.
- Allow active bets placed on events starting before 11:00 a.m. (roughly the time of the announced shut down) on December 4 to run and be settled,
- All active bets for events starting after 11:00 a.m., including all futures bets, are voided.
- Free bets are not eligible for withdrawal but will be available when the company begins accepting bets again.
Perhaps most importantly, the company made clear that customer funds were available to still be withdrawn.
The D.C. Court of Appeals Order
The order from the D.C. Court of Appeals was short; there was no attached opinion. The first matter the three-judge panel addressed was efforts by the Monterra plaintiffs to intervene as amicus curiae who would oppose the stay. The Court of Appeals stated that the emergency stay process under the Federal Rules of Appellate procedure does not allow for the participation of amicus parties at this stage and nor do the Circuit’s own rules. As a result, the judges denied the motion.
Regarding the decision on whether to stay the order of the District Court, the panel was split 2-1 with Judges Pillard and Walker opposing granting the stay. In contrast, Judge Rogers voted in favor of granting the stay. Unfortunately for Florida-based sports bettors, the Court of Appeals makes decisions on a majority-rule basis. As a result, Florida returns to its pre-2021 compact status.
It is difficult to read too much into how Judge Rogers’s vote will translate down the road. Still, given the need to show a likelihood of success on the merits to prevail on the emergency stay, the Seminole Tribe may have one vote in their favor as the appeal moves forward. Of course, they may also have two votes against them, but a lot can develop between now and when the D.C. Court of Appeals issues their decision.
The internal split might be setting up a showdown at the Supreme Court, if nothing else.
Increasing chances for landing at the Supreme Court?
While the apparent 2-1 split in the D.C. Court of Appeals panel would not on its own significantly increase the likelihood of the Supreme Court taking a case (the Supreme Court hears about one percent of the petitions that it receives in any given year), there was news out the Eleventh Circuit Court of Appeals that could increase the chances.
On Nov. 29, 2021, West Flagler Associates filed an appeal with the Eleventh Circuit challenging the ruling of the federal court in the Northern District of Florida that ruled the South Florida gaming operators lacked standing to challenge the compact by suing Governor Ron DeSantis and Secretary Julie Imanuel Brown.
The Northern District of Florida court’s decision on the surface may appear as though it conflicts with the D.C. District Court’s finding that the West Flagler Associates plaintiffs had standing to sue the Department of the Interior and Secretary Deb Haaland.
However, they are distinct entities being sued, and there is the possibility that one could have the standing to sue the Department of the Interior and not the governor. But, there may be sufficient connection that a question about standing and/or IGRA arises that piques the Supreme Court’s interest sufficiently that they take the case particularly if the status quo remains unchanged at both the D.C. Court of Appeals and at the Eleventh Circuit.
What is next?
Both appeals are likely to play out on parallel tracks in the different courts of appeal. The case in the Eleventh Circuit will be slightly ahead of the matter in D.C. as the appellant’s brief is due on Jan. 10, 2022, with the Governor’s brief due 30 days after they receive the appellant’s brief (West Flagler Associates brief). Twenty-one days after service of the appellee’s brief, a reply is due.
This means that in a best-case scenario, we would be looking at oral arguments before the Eleventh Circuit in March or April of 2022. Of course, a decision could come any time after that, but the average time from notice of appeal to a decision is 9.7 months in the Circuit, which would mean we are likely looking at a decision somewhere between August and October of 2022.
The D.C. Court of Appeals case will play out similarly though the median time from Notice of Appeal to decision in the D.C. Court of Appeals is about 11 months, so, realistically, we are probably looking at a decision between November and January 2023 in the D.C. litigation.