US Appeals Court Grants En Banc Review in New Jersey Sports Betting Case

The United States Court of Appeals for the Third Circuit today issued an order granting petitions for an en banc re-hearing of a recent decision, in which a three-judge Third Court appellate panel declared that the most recent attempt by the State of New Jersey to enact a partial repeal of its standing prohibitions against sports betting was still in violation of federal law.

New JerseyToday’s order, agreed to by a majority of the Third Circuit’s roster of active judges, vacates the earlier ruling and raises the possibility that New Jersey’s “Christie II” law, which attempts to exempt state-regulated casinos and racetracks from the otherwise-intact statewide ban, may ultimately receive a favorable appellate vote.

The granting of the en banc hearing, rare though it is, still does not guarantee that New Jersey’s legal interests in the matter will prevail.  Even if the full Third Circuit sides with New Jersey against the plaintiffs in the case, five major US sports organizations, an appellate reversal would still likely result in two more attempts by the US-based leagues to stop New Jersey’s plans.  First, a motion asking for a stay of any activation of sports-betting action by New Jersey’s casinos and pari-mutuel facilities would certainly be filed, followed by an almost-certain appeal by the case to the US Supreme Court, even if the Supreme Court is statistically unlikely to hear the case, having turned down an earlier version of the legal tussle.

Still, the order granting the state’s en banc petition was itself even more of a rarity.  The Third Circuit Court of Appeals typically grants only one or two such petitions for review in any calendar year, out of thousands of cases it is offered for possible review.  As happened with this Christie II case, an en banc petition’s chances are greatly improved when multiple decisions appear to conflict with each other.  That happened in the Third Circuit’s appellate decisions in the Christie I and Christie II cases, with both decisions also going against New Jersey and in favor of the sports leagues, despite the conflicting justifications.

The succinct, single-paragraph announcement granting the petition read as follows:

A majority of the active judges having voted for rehearing en banc in the above captioned cases, it is ordered that the petitions for rehearing are GRANTED. The Clerk of this Court shall list the case for rehearing en banc at the convenience of the Court. The opinion and judgment entered August 25, 2015 are hereby vacated.

Eleven Third Circuit appellate judges were listed as having been present for the Circuit’s discussion of whether to grant the en banc petition.  Those eleven judges were: Thomas L. Ambro, Julio M. Fuentes, D. Brooks Smith, D. Michael Fisher, Michael A. Chagares, Kent A. Jordan, Thomas M. Hardiman, Joseph A. Greenaway, Jr., Thomas I. Vanaskie, Cheryl Ann Krause, Marjorie O. Rendell and Maryanne Trump Barry.

Judges Fuentes, Rendell and Trump Barry comprised the three-judge panel which initially ruled 2-1 in favor of the sports leagues — and against New Jersey — last August.  Fuentes sided with New Jersey, while Rendell and Trump Barry opted for the arguments of the leagues, which also left PASPA’s standing prohibitions intact.  Today’s Third Circuit order does not specify how the acting judges voted, other than a majority of the eleven — six or more — must have voted for the en banc review.

New Jersey State Senator Ray Lesniak, primary authority of both the “Christie I” and “Christie II” bills, enthusiastic Tweeted news of the Third Circuit order to his followers:

Despite Lesniak’s exuberance, it’s unlikely that all legal hurdles still in the case’s future will be decided this NFL season, no matter which way the en banc hearing goes.  The appellate court has not even scheduled its full review of the case, and depending on that review’s outcome and eventual ruling, either side would still have the option of appealing, as previously noted, to the US Supreme Court.  Thus, the 2016 NFL season is now likely to be part of the timeframe when New Jersey’s residents enjoy legal sports betting, if indeed the state’s challenge to PASPA ultimately succeeds.

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