• The D.C. Circuit Court last week ordered the Seminole Tribe provide a response to West Flagler Associates en banc hearing request
• West Flagler last week petitioned for an en banc rehearing of a D.C. Circuit Court’s decision to restore a 2021 Florida gaming compact
• The Tribe has until Aug. 31 to submit its response

In a move that could raise a few eyebrows, the U.S. Court of Appeals for the District of Columbia last week requested a response from the Seminole Tribe regarding West Flagler Associates’ petition for an en banc hearing of the court’s decision to restore a 2021 Florida gaming compact.

The Seminole Tribe has until Thursday, Aug. 31, to submit its response.

As reported by Daniel Wallach, a gaming law attorney, Founder of Wallach Legal and UNHLaw Sports Wagering, en banc hearings are usually either accepted or denied without requests for responses from parties involved in the case.

In most cases, the court just denies the petition for rehearing without requesting a response. The fact that they ordered a response — on their own motion, no less — adds some further intrigue. But I still expect rehearing to be denied. SCOTUS is a different story, however.

— Daniel Wallach (@WALLACHLEGAL) August 17, 2023

Potential Sports Betting Launch Pushed Back

If an en banc hearing is not granted, it would allow the Seminole Tribe to launch Florida online sports betting when the court’s mandate officially goes into effect. However, with this newest request, Florida online sports betting’s launch would likely be delayed past the Thursday, Sept. 7, NFL start date.

Despite the request, the odds are still unlikely that West Flagler receives an en banc hearing. The court has not granted an en banc rehearing since 2021. West Flager petitioned the court for an en banc hearing on Monday, Aug. 14.

In late June, a three-judge panel for the U.S. Court of Appeals for the the District of Columbia unanimously agreed to overturn a ruling from U.S. District Court Judge Dabney L. Friedrich that declared a 2021 Florida gaming compact violated the Indian Gaming Regulatory Act (IGRA).

The gaming compact was thrown out by Friedrich in November 2021. Ultimately, Friedrich determined the compact violated the conditions set forth by IGRA that limits tribal gaming to the confines of tribal lands. The Seminole Tribe argued in the gaming compact that because the servers that processed the online sports bets were located on tribal land, then the bets themselves were placed on tribal lands.

The three-judge panel for the U.S. Court of Appeals for the the District of Columbia disagreed with her ruling.

In West Flagler’s request, counsel for the plaintiff’s wrote that the Supreme Court’s ruling of Michigan v. Bay Mills Indian Community found the Indian Gaming Regulatory Act (IGRA) regulates gaming on “Indian lands, and nowhere else.”

“The Opinion is erroneous and will create confusion, and thus rehearing is warranted. The Opinion relies on an interpretation of an IGRA provision itemizing the ancillary subject matters that are permissible in an IGRA compact. As shown by both the plain text of this provision and the overall legislative purpose of IGRA, this provision cannot reasonably be read to allow IGRA compacts to contain provisions that on their face seek to authorize gaming activities off of Indian lands,” counsel wrote in the document.

En Banc Hearing Petitions Can Take ‘Months’

A spokesperson for the court told Sports Betting Dime that there is no timeline for an en banc hearing request and it can sometimes takes “months” for a determination to be made.

To be granted an en banc hearing, six of the 11 district judges have to approve the request. Considering that three judges have already ruled against West Flagler and would likely not approve the request, six of the remaining eight judges would have to agree to a rehearing.

A spokesperson for the Seminole Tribe released a statement reminding everyone that the three-judge panel was unanimously in favor of the Department of the Interior and the gaming compact approval.

“It’s important to note the three Judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a unanimous decision in favor of the U.S. Department of the Interior, which approved the Gaming Compact between the Seminole Tribe and the State of Florida,” the Seminole Tribe spokesperson wrote.

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