Three sentences set the sports betting world afire this morning when the US Court of Appeals for the Third Circuit issued an order granting New Jersey’s petition for rehearing en banc in the most recent round of sports betting litigation. In simple terms, this means that the case will be heard anew by the active judges of the Third Circuit plus the two senior judges who participated in the case – the final count will be an oral argument in front of a total of about 11 judges at once – more than the Supreme Court.
As we’ve covered here, this case centered around what it means to “authorize.” Previously, New Jersey challenged the constitutionality of the Professional and Amateur Sports Protection Act (“PASPA”) on the grounds that it commandeered the states to maintain a federal prohibition. As has been written before, PASPA does not prohibit sports betting – it prohibits a state from authorizing sports betting by law. But the courts found PASPA constitutional because it gave the states a choice: keep sports betting prohibitions in place, or repeal them. That choice saved the constitutionality of PASPA. New Jersey, seizing on this language, partially repealed its prohibitions on sports betting. The sports leagues argued that partial repeal amounts to an “authorization,” which violates PASPA. The court agreed.
Judge Julio Fuentes wrote the court’s 2013 opinion on constitutionality – finding the statute to be constitutional. He was again on the panel in 2015. This time, he dissented, writing that a partial repeal was permissible under PASPA because there is a difference between authorizing and repealing.
The Court of Appeals grants rehearing en banc when either a question of exceptional importance is involved or is there is a need to reconcile precedents of the court. Needless to say, Judge Fuentes’ view that the 2015 opinion was not consistent with the 2013 opinion probably triggered some of the judges on the court to want to take a close look at the consistency of the two cases. It is also the case that a prior precedential opinion of the Court can only be overruled en banc – so it is possible that the Court wants to take a closer look at the constitutionality of PASPA as addressed in Christie I. There is no guarantee, however, that the Court will reach a different result this time around. Because rehearing en banc has been granted, however, the court’s August 2015 opinion is vacated.
The fact that the court granted en banc review does mean that some of the judges may be inclined to reach a different result. The logic there is that if the judges were satisfied with the result, they would have simply let the underlying decision stand. That too is no guarantee of a different result – they may, after examination, reach the same result but based on different reasoning. Of course, the en banc review could lead to a different result or to a modification of Christie I.
Thus far it is not known when the en banc hearing will be scheduled. No new briefs will be filed. Typically the Court schedules a number of en banc cases on the same day for convenience. The case will be orally argued and voted on by the judges who hear it; one will be assigned to write an opinion, which will have to receive a vote of a majority of the judges who hear the case in order to become the opinion of the court.
One thing is clear – unless rehearing was granted, New Jersey’s only remaining shot under the partial repeal legislation was the extremely unlikely chance that the Supreme Court would take the case after once declining to do so. New Jersey’s chances of success have increased significantly as a result of this order.