Hard Rock Florida relaunch facing delay as Florida pari-mutuel operator seeks full bench rehearing
West Fagler & Associates files en banc petition in last minute move to rehash landmark case
The long-running legal dispute between the Seminole Tribe, the Department of the Interior (DOI), and West Fagler & Associates went into overtime yesterday, with the filing of a new petition seeking a rehearing of the case.
On Monday (August 14), lawyers for West Fagler & Associates, the Florida-based pari-mutuel operator, filed for a so-called ‘en banc’ petition to have the ongoing case reheard by the Court of Appeals District of Columbia Circuit.
August 15 marked the last day of a 45-day window in which West Fagler could file a petition in the case following the District of Columbia court’s decision to side with the Seminole Tribe in June.
In that decision, the three-judge US Court of Appeals for the District of Columbia Circuit sided with the Seminole Tribe and the DOI, unanimously contending that the Indian Gaming Regulatory Act (IGRA) does not prevent the Seminole tribe from accepting bets remotely.
Although it acknowledged the rule of IGRA over gaming on Indian land, the panel asserted that IGRA did not directly prohibit a tribe from discussing and agreeing compacts to govern gaming off Indian lands, as officials in Florida had agreed with the Seminole Tribe in 2021.
An en banc hearing is essentially a rehearing of a court case before a full bench of all of the judges of particular court rather than just a select judge or multi-judge panel, as per this case.
Such rehearings are rarely granted as all judges of the court must agree to proceed before a rehearing can take place.
Under Federal Rules of Appellate Procedure, en banc hearings are generally looked upon unfavorably by appeals courts due to the additional demands placed on the court, but can be ordered in two instances.
These are if the issue is an exceptionally important one, as lawyers have argued in this case, and if a consideration is necessary to reinforce the uniformity of the court’s decisions.
In a 63-page petition filing, West Fagler’s lawyers, Boies Schiller Flexner LLP, summarized the exceptional importance of the case, citing the interpretation of the IGRA.
“The opinion [filed by the District of Columbia court in June] is erroneous and will create confusion, and thus rehearing is warranted,” the petition read.
“The net effect of the opinion is that a tribe and state may now contract to give the tribe a statewide monopoly on gaming off Indian lands so long as some of the gaming also occurs on at least one square foot of Indian land,” counsel added.
West Fagler’s lawyers further asserted that in siding with the Seminole Tribe, the District of Columbia court had departed from prior case law by allowing a tribe to use IGRA to obtain approval from the Department of the Interior for statewide gambling rather than just on Indian lands.
“It says the Secretary may provide such approval even where – as here – the law of the state prohibits the type of gambling in question if conducted off of Indian lands,” the petition stated.
The call for a rehearing pushes a potential relaunch of the Hard Rock Digital online sportsbook further into the second half of 2023. Had West Fagler & Associates chosen not to file an en banc petition, Hard Rock could potentially have relaunched in Florida as early as August 22.
The Hard Rock Digital sportsbook was ordered to close in November 2021 when US District Court for the District of Columbia Judge Dabney Friedrich voided the tribe’s 30-year compact with the state of Florida on the grounds that it violates the IGRA, the Unlawful Internet Gambling Enforcement Act (UIGEA), and the Wire Act.
The case continues.