The day many sports betting watchers in Florida have been waiting for has finally come.
Oral arguments were held Wednesday morning in the litigation over the 2021 gaming Compact that brought sports betting to the Sunshine State. The deal that was struck between Governor Ron DeSantis and the Seminole Tribe of Florida was challenged in late 2021, with a decision ending the short-lived FL sports betting product in November 2021.
The decision of Judge Dabney Friedrich was appealed by the Department of Interior and the Seminole Tribe of Florida, who challenged separate issues with the District Court’s decision. After months of briefs, today was the day when the parties presented their oral arguments before Judges Henderson, Wilkins, and Childs of the United States Court of Appeals for the District of Columbia.
Who won Florida sports betting oral arguments?
It is always a dangerous game to try to read too much into oral arguments, especially at a Court where the judges’ preferences are less well-known, in comparison to the Supreme Court, where some Justices have well-known ideological positions or positions on specific issues. With that said, from listening to oral arguments, I think there is a good chance of a 2-1 split on the panel.
Childs spoke the least of the three judges, and it was difficult to get a clear read on the areas of the case that she saw as important. Regardless of how the Court of Appeals rules, it seems likely that the losing party, or parties, appeal either for a rehearing en banc or directly to the Supreme Court.
Now the waiting begins. Sccording to the median time to decision from oral arguments from 2017, the D.C. Circuit was one of the fastest appeals courts, with a median turnaround time of 2.6 months. However, it is probably wise not to read too much into that figure as it is now a little dated, but it is a point in the future to begin thinking that a decision might come soon.
Recapping Department of Interior argument
The Department of the Interior was represented by Department of Justice (DoJ) attorney Rachel Heron, who has been one of the senior DOJ attorneys on the case. The DOJ was likely looking to avoid some of the shortfalls of the oral arguments at the District Court in this round.
Heron framed her argument around the issue of whether the Secretary of the Interior acted within her authority when she allowed the Compact between the Seminole Tribe of Florida and the State of Florida to come into law. Heron focused much of her early statement on arguing that West Flagler (the appellees) has an incorrect view of the Secretary’s obligations under the Indian Gaming Regulatory Act (IGRA).
Early questions to the DOJ attorney centered on whether the Secretary of the Interior has an affirmative duty to reject a compact inconsistent with state law. Heron argued that IGRA only requires the Secretary to affirmatively reject a Compact that is inconsistent with IGRA, and the Secretary has the authority, but not the mandate, to reject a Compact that is incompatible with other federal laws.
When asked about the Compact’s compatibility with a number of other statutes raised by the appellees (e.g., the Wire Act, UIGEA), Heron argued that the Court did not need to address those, as the District Court did not. She further argued that this matter could be addressed by a simple reversal of the decision as it relates to permissibility under IGRA.
Rule 19 inconsistencies?
The Judges quickly honed much of their focus on the federal government’s seemingly disparate arguments across a variety of cases with regards to Rule 19, which relates to the intervention of the Seminole Tribe of Florida in the case. Heron argued that the cases where the federal government has argued that a party is necessary under Rule 19 are distinguishable from the present case. Additionally, the federal government argued they had done an adequate job representing the Tribe.
One question appeared to trip up Heron, when she was asked whether the Court needs to address the Rule 19 question if they resolve to reverse the District Court’s decision on the question relating to IGRA. After initially answering yes, she quickly reversed and said the Court does not need to deal with the Rule 19 matter if they choose to reverse on the other question.
Seminole Tribe of Florida’s arguments
Second up was the Seminole Tribe of Florida, represented by long-time Tallahassee-based gaming attorney Barry Richard. Richard’s focus, naturally, was on the denial of the Seminole Tribe’s motion to intervene at the District Court. Richard argued that the prejudice suffered by the Tribe by not allowing their inclusion undermines the Tribe’s sovereign immunity.
When asked if the allowing the Tribe to intervene would effectively mean the end for third parties challenging IGRA, Richard argued that would not be the case and that while the Department of the Interior can adequately represent the interest of tribes in many cases, that was not the case here.
Florida’s turn
When the State of Florida was given a brief chance to make its case, it elected attorney Henry Whitaker to convey its arguments. Whitaker spent much of his time devoting the panel’s attention to the issue of severability and whether the District Court should have severed offending parts of the Compact and allowed the remainder to survive.
When asked about the issue of the Equal Protection Clause claims made, Mr. Whitaker articulated that the State did not have a position.
West Flagler Associates case
West Flagler Associates turned to famed litigator Hamish Hume, who showed his experience with his poise and presence. Hume immediately took aim at the Compact, arguing that the Compact allows gambling off “Indian lands,” even though the government concedes doing that would not be compatible with IGRA.
When asked why it is not dispositive when the government says that the Compact does not allow gaming off tribal lands, Hume said that it will be “a cruel joke if this court accepts the government’s argument [about the compact] in this case.”
Mr. Hume explained that IGRA only has one approval provision; there is not a “big A approval” for gaming on tribal lands and a little “wink wink approval” for off-tribal lands gaming.
Is Florida sports betting compact unique?
Hume was asked whether the Compact language was unique at one point. He argued it was, which prompted Wilkins to ask about “a case from California.” The Judge was likely referring to Iipay Nation (though it is impossible to know if that was the case he was referencing for sure) as an illustration of a case with similar language that case would likely support Hume’s arguments.
After allowing Hume significant time to make his arguments with little interruption, he was asked about the provision that deems a bet to occur in the location of the servers and whether any federal law says that you can not do such a thing.
Hume responded that there is nothing in IGRA that allows for the reclassification of “actual facts.” He then highlighted that the government previously argued that a bet occurs both in where it is sent from and where it is received.
When asked in the concluding minutes about whether the Seminole Tribe of Florida is a necessary party, Hume stated that he agreed with the federal government that they were not.
Monterra plaintiffs’ arguments
The Monterra plaintiffs were represented by Jenea Reed.
Reed devoted much of her time to arguing that the Compact was an attempted “run-around” of the Florida Constitution and Amendment 3, passed several years ago, requiring voter approval for gaming expansion in the state.
