MGM RESORTS INTERNATIONAL GLOBAL GAMING DEVELOPMENT, LLC, Plaintiff-Appellant,
Dannel P. Malloy, in his official capacity as Governor of Connecticut; Denise Merrill, in her official capacity as Connecticut Secretary of the State; Jonathan A. Harris, in his official capacity as Commissioner of the Connecticut Department of Consumer Protection, Defendants-Appellees.
Argued: November 28, 2016
from the United States District Court for the District of
Connecticut. No. 3:15 Civ. 1182 - Alvin W. Thompson, Judge.
King (Thomas Brugato, Covington & Burling LLP,
Washington, DC; Neil K. Roman, Cléa Liquard, Covington
& Burling LLP, New York, NY, on the brief), Covington
& Burling LLP, Washington, DC, for Plaintiffs-Appellants.
J. Deichert, Assistant Attorney General, for George Jepsen,
Attorney General, Hartford, CT, for Defendants-Appellees.
Before: Walker, Sack, and Chin, Circuit Judges.
M. Walker, Jr., Circuit Judge
MGM Resorts International Global Gaming Development, LLC
("MGM"), a developer of casinos and other
commercial gaming enterprises, appeals a judgment of the
United States District Court for the District of Connecticut
(Thompson, J.) dismissing its complaint against the
State of Connecticut for lack of Article III standing. MGM
claims that Special Act 15-7 (the "Act") of the
Connecticut General Assembly, which creates a special
registration pathway for the state's two federally
recognized Indian tribes to apply to build commercial casinos
on non-Indian land, places it at a competitive disadvantage
in the state's gaming industry. Because MGM has failed to
allege any specific plans to develop a casino in Connecticut,
we conclude that any competitive harms imposed by the Act are
too speculative to support Article III standing. We therefore
AFFIRM the judgment of the district court.
2015, the Connecticut General Assembly enacted Special Act
15-7, which establishes a framework through which
Connecticut's two federally-recognized Indian tribes, the
Mashantucket Pequot and the Mohegans (the
"Tribes"), may seek to negotiate with
municipalities to establish commercial casinos on
non-reservation land. Under the Indian Gaming Regulatory Act
("IGRA"), 25 U.S.C. § 2701 et seq.,
federally recognized Indian tribes may establish casinos on
tribal land by entering into compacts with the surrounding
state, subject to the approval of the Secretary of the
Interior. By contrast, gaming on non-tribal land
("commercial gaming") is regulated by the law of
the relevant state. The Tribes already operate two
casinos-Foxwoods and Mohegan Sun-on tribal land in
Connecticut, which were established pursuant to IGRA.
Act 15-7 establishes a process by which the Tribes may
jointly apply to establish commercial casinos elsewhere in
Connecticut. It mandates that if the Tribes wish to pursue
commercial gaming opportunities on non-tribal land, they must
form a "tribal business entity" (TBE) for that
purpose. A TBE is a business entity registered with the
Connecticut Secretary of the State, and jointly owned by both
of the Tribes. § 1(a)(1). It is the only entity
permitted to negotiate with municipalities on behalf of the
Tribes. Though the Act allows a TBE to negotiate for the
establishment of new commercial casinos, it mandates that the
Connecticut General Assembly amend state law to expressly
"provide for the operation of and participation in"
a new gaming facility by the Tribes before any new casino can
be built. § 1(c)-(d). The Act also requires that any
requests for proposals ("RFPs") issued by a TBE
regarding the establishment of a casino on non- tribal land
be submitted to the state Department of Consumer Protection
("DCP"), and published on that agency's
website. § 1(b).
the Act requires the Tribes to establish a TBE in order to
pursue commercial casino development, it makes no mention of
any other potential market actors. The parties dispute the
meaning of this omission. MGM interprets the statutory
language to mean that only the Tribes are authorized to
establish commercial casinos in Connecticut at all, because
the Act is the only statute that provides any entity with an
express right to enter into such negotiations with
municipalities. The state argues that nothing in the Act
prevents other developers from soliciting municipalities for
contracts, and that it imposes a unique burden on the Tribes
by requiring them to partner with each other through a TBE in
order to compete for contracts. No Connecticut state court
decision has interpreted the Act or suggested any path toward
resolving this dispute.
on its interpretation of the Act that a non-tribal land
casino requires the establishment of a TBE, on July 23, 2015,
MGM attempted to register a TBE with the Connecticut
Secretary of the State as a preliminary step to issuing RFPs
to municipalities for potential casino developments. The
Secretary rejected the application on the ground that it
"[did] not comply with Connecticut law" because MGM
has "no affiliation with either of [the] Tribes."
[Amended Complaint ¶ 53, App'x 23-24]. MGM claims
that it remains interested in establishing a commercial
casino in Connecticut. According to MGM's brief, "[a]s
part of its development and expansion efforts, " it has
"conducted a study analyzing the viability of a casino
in Connecticut and concluded that such a development would be
both feasible and desirable." [Appellant's Br. At
13]. However, MGM does not appear to be currently engaged in
negotiations with any municipalities on specific projects.
Tribes registered a TBE with the Secretary of the State on
August 24, 2015. Shortly thereafter, they published an RFP on
the website of the state Department of Consumer Protection.
While the Tribes' negotiations to build a casino remain
"ongoing, " no development agreement has been
August 4, 2015, MGM filed a complaint in the District of
Connecticut seeking a declaratory judgment and other relief
on the basis that Special Act 15-7 violates the Equal
Protection Clause of the Fourteenth Amendment and the dormant
Commerce Clause. On June 23, 2016, the district court
dismissed the complaint under Federal Rule of Civil Procedure
12(b)(1), after determining that MGM had not suffered a
concrete harm and therefore did not have Article III
standing. MGM now appeals.
review de novo a district court's grant of a
motion to dismiss. Baur v. Veneman, 352 F.3d 625,
631 (2d Cir. 2003). At the pleading stage, a reviewing court
must accept as true any facts plausibly alleged in a