N.H. Lottery Comm'n v. Rosen

N.H. Lottery Comm'n v. Rosen

Opinion

 [*44]  KAYATTA, Circuit Judge. In 2018, the Office of Legal Counsel ("OLC") of the U.S. Department of Justice ("DOJ") issued a legal opinion, adopted by DOJ, that all prohibitions [**4]  in the Wire Act of 1961, save one, apply to all forms of bets or wagers (the "2018 Opinion"). The 2018 Opinion superseded an OLC opinion from 2011 concluding that the Wire Act's prohibitions were uniformly limited to sports gambling (the "2011 Opinion"). Suffice it to say, the more expansive construction of the Wire Act adopted in 2018 caused great consternation among the many states and their vendors who, as the 2018 Opinion acknowledged, had "beg[u]n selling lottery tickets via the Internet after the issuance of [the] 2011 Opinion." Not eager to scrap or shrink its lottery, the New Hampshire Lottery Commission and one of its vendors, NeoPollard,³ commenced this action in February 2019, seeking relief under the Declaratory Judgment Act and the Administrative Procedure Act. The district court granted both requests, ruling that the Wire Act is limited to sports gambling, as OLC initially opined.

The Attorney General, DOJ, and the United States (collectively "the government") appealed the district court's judgment.  [*45]  For the following reasons, we hold that the controversy before us is justiciable and that the Wire Act's prohibitions are limited to bets or wagers on sporting events or contests. [**5]  We depart from the district court only by deciding that relief under the Declaratory Judgment Act alone is sufficient.

In 1961, Congress passed the Wire Act. See 18 U.S.C. § 1084 (codifying Pub. L. No. 87-216, § 2, 75 Stat. 491, 491 (1961)). The subsection relevant for our purposes, section 1084(a), reads:

Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined under this title or imprisoned not more than two years, or both.

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