Patchak v. Zinke

Issues 

Does a statute directing the federal courts to “promptly dismiss” a pending lawsuit, after a determination by the Supreme Court that the suit may proceed, violate the Constitution’s separation of powers principles when it does not change the substantive law on which the original proceeding was based? 

Oral argument: 
November 7, 2017

The Supreme Court will decide whether a statute directing the federal courts to promptly dismiss a pending lawsuit, without amending the underlying law on which the lawsuit was brought, violates the Constitution’s separation of powers principles. Petitioner David Patchak argues that the Gun Lake Act, which removes subject-matter jurisdiction from any federal court to hear his case, is unconstitutional because it determines the outcome of pending litigation without changing the substantive law on which his lawsuit was first brought, specifically sovereign immunity law. Patchak believes that the statute grants the Legislature too much power over judicial matters. Respondents the Secretary of the Interior, et al. and the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the “Gun Lake Tribe”) argue that, because the statute merely dictates the subject-matter jurisdiction of the federal courts, it is well within Congress’ constitutional powers. The Secretary and the Gun Lake Tribe maintain that if statutes like the Gun Lake Act are unconstitutional, the Judiciary will have too much power because courts will be able to determine their own jurisdiction, limited only by their own discretion. This case will provide clarity on the line of cases regarding Congress’ ability to affect pending litigation and govern the specificity with which Congress will need to draft jurisdictional statutes in the future.         

Questions as Framed for the Court by the Parties 

Does a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including this Court’s determination that the “suit may proceed”)—without amending underlying substantive or procedural laws—violate the Constitution’s separation of powers principles?

Facts 

In 2005, the Bureau of Indian Affairs approved an application by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the “Gun Lake Tribe”) for a tract of land called the Bradley Property, located in Wayland Township, Michigan, to be put into trust under the Indian Reorganization Act (“IRA”). See Patchak v. Jewel, 828 F.3d 995, 3 (D.C. Cir. 2016). The Gun Lake Tribe sought to use the land for gaming facilities and, after the application was approved, opened the Gun Lake Casino in 2011. See id. 

Petitioner David Patchak, a resident of Wayland Township, filed a lawsuit in 2008 against the Secretary of the Interior and the Assistant Secretary of the Interior for the Bureau of Indian Affairs, protesting the taking of the Bradley Property into trust. See id. In this lawsuit, Patchak claimed that he would be injured by the construction and operation of the casino in his quiet, rural community, specifically through the increase of traffic, pollution, and taking away of resources from other residents to be put towards the casino. See id. at 4. Patchak also claimed that the Secretary of the Interior did not have the authority under the IRA to put the Bradley Property into trust because the Gun Lake Tribe, having formally been recognized only in 1999, was not a formally recognized tribe during the enactment of the IRA in 1934. See id.  

The District Court for the District of Columbia dismissed the case for lack of subject-matter jurisdiction, adopting the government’s argument that Patchak’s interest in the Bradley Property did not fall into the interests that the IRA was meant to affect. See id. The Court of Appeals for the District of Columbia Circuit disagreed and reversed the District Court’s dismissal. The Supreme Court affirmed, determining that Patchak had standing to bring the suit, and remanded the case to the District Court for further proceedings. See id.  

Before the litigation resumed in the District Court, the Secretary’s taking into trust of the Bradley Property was confirmed in two ways: 1) in an Amended Notice of Decision, the Department of Interior confirmed its authority to take land into trust for the Gun Lake Tribe and approved applications for two more parcels of land the Tribe wanted to acquire, and 2) Congress, in 2014, enacted the Gun Lake Act, which reaffirmed the Secretary’s authority to take the Bradley Property into trust and required all federal courts to dismiss all actions, such as Patchak’s, relating to the property. See id. at 5. Litigation resumed shortly thereafter and, in response to motions from both parties for summary judgment, the District Court, ruling that the Gun Lake Act removed its jurisdiction to review the case, granted summary judgment for the government and dismissed the case. See id. at 6. The Court of Appeals for the District of Columbia Circuit affirmed the decisions of the District Court. See id. at 19.  

Patchak then filed a writ of certiorari to the Supreme Court, and the Court granted the petition on May 1, 2017. 

Analysis 

CONSTITUTIONAL SEPARATION OF POWERS PRINCIPLES

Patchak argues that Gun Lake Act § 2(b), by ordering federal courts to “promptly dismiss” a pending case without altering relevant laws, intrudes on the judicial power and subsequently violates the separation of powers. See Brief for Petitioner at 16. Patchak adds that Congress’ direction in the Gun Lake Act also constitutes an unconstitutional reversion of the Supreme Court’s decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (“Patchak I”), which held that Patchak had standing, sovereign immunity was waived, and that his suit could proceed. See Brief for Petitioner at 14. Patchak also maintains that Gun Lake Act § 2(b) is similar to part of the contested statute in United States v. Klein (“Klein”), in which the Court held that Congress had violated separation of powers principles when Congress directed the court to dismiss pending cases without changing applicable legal standards. See Brief for Petitioner at 16. Federal Courts Scholars, in support of Patchak, agree, noting that although it may be tempting to read Klein as dealing primarily with the presidential pardon power, Article III separation of powers principles were more central to the Supreme Court’s holding in Klein. See Brief of Amici Curiae Federal Courts Scholars, in support of Petitioner at 78.

Patchak also contends that the historical acts of Congress, in not enacting statutes with characteristics similar to those of the Gun Lake Act, indicate that the Gun Lake Act is an unconstitutional use of power. See Brief for Petitioner at 18. Patchak quotes Printz v. United States, in which the Supreme Court deduced that Congress perhaps failed to wield such a hypothetically attractive power because it did not possess such power. See id.

In contrast, Zinke et al. argue that Gun Lake Act § 2(b) amends the law governing Patchak’s claim by disallowing federal courts to adjudicate the category of claims relating to the Bradley Property. See Brief for Respondents at 34. Zinke et al. maintain that Gun Lake Act § 2(b) differs from the statute at issue in Klein because the holding in Klein does not apply when Congress alters applicable law, so long as Congress does not impose a rule that removes the adjudicatory function from the court. See id. at 33. The Gun Lake Tribe adds that Gun Lake Act § 2(b) is dissimilar from the statute in Klein because § 2(b) only removed jurisdiction from federal courts rather than directing courts to dismiss cases with particular findings or directing a particular outcome, and thus that the manner in which Congress removed such jurisdiction is irrelevant. See id. at 41. Moreover, the Gun Lake Tribe argues that the Supreme Court must construe Gun Lake Act § 2(b) as constitutional, as it permits Congress to exercise its constitutional functions while remaining separate from judicial powers. See Brief for Respondent, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians at 34.

Zinke et al. argue that Congress has enacted statutes with characteristics similar to Gun Lake Act § 2(b), and that the Supreme Court has concluded that such statutes stated jurisdictional limitations. See Brief for Respondents at 20. Zinke et al. also argue that the cases Patchak uses to demonstrate the unconstitutionality of the Gun Lake Act are dissimilar to § 2(b), and that they do not support Patchak’s argument that the word “jurisdiction” was necessary to make § 2(b) a jurisdictional statute. See id. at 21. Further, the Gun Lake Tribe contends that although § 2(b) does not use the word “immunity,” there are many other similar statutes in which Congress has defined sovereign immunity that also omit the word. See Brief for Respondent at 21. The Gun Lake Tribe notes that Congress also acts to preserve sovereign immunity without using the word “immunity”, and that the Supreme Court upheld a statute revoking consent to suit by ordering that all pending suits be vacated. See id. at 2122.

JURISDICTIONAL DEFINITION

Patchak maintains that Gun Lake Act § 2(b) cannot be a jurisdictional statute because language of the statute does not include the word “jurisdiction.” See Brief for Petitioner at 23. Patchak argues further that Gun Lake Act § 2(b) would violate the separation of powers even if it appeared to be jurisdictional because it is inconsistent with the Constitution’s separation of powers principles. See id. at 24. Federal Courts Scholars, on behalf of Patchak, further explain that Gun Lake Act § 2(b) does not allow an exercise of judicial power, but instead it constitutes an act of legislative power that deprives federal “courts of jurisdiction to determine their jurisdiction.” See Brief of Amici Curiae Federal Courts Scholars at 21.

Zinke et al. argue that Congress has the constitutionally-derived authority to define and limit the jurisdiction of lower federal courts, including the power to confer jurisdiction and the power to take it away at will, in whole or in part. See Brief for Respondents at 16. Zinke et al. maintain that this is the power invoked in the Gun Lake Act, because the consequences of the Act in barring federal suit over the Bradley Property would be the same if the language stated directly that federal courts had no jurisdiction over actions relating to the Bradley Property. See id. at 22. The Gun Lake Tribe further contends that Congress does not have to use specific language or “magic words” to exercise jurisdictional power, and that the Gun Lake Act constitutes a valid withdrawal of subject matter jurisdiction despite its lack of jurisdictional language. See Brief for Respondent at 33.  

SOVEREIGN IMMUNITY

Patchak argues that Congress assumed judicial power in mandating that Patchak’s pending claim be dismissed, and that it did so after the Supreme Court held in Patchak I that sovereign immunity was waived and that Patchak’s suit could proceed. See Brief for Petitioner at 28. Patchak argues further that by intruding on the judicial power, Congress violated his constitutional right to a neutral adjudication of his claim. See id.

Zinke et al. contend that in drafting Gun Lake Act § 2(b), Congress was within its Article III power to define the jurisdiction of the federal courts and to exercise its authority to restore sovereign immunity to the United States government. See Brief for Respondents at 15. Zinke et al. also argue that Congress simply reinstated the United States’ sovereign immunity in response to the Supreme Court’s acknowledgment in Patchak I that Congress may restore sovereign immunity for other suits challenging the government’s ownership of land. See Brief for Respondents at 26. Moreover, the Gun Lake Tribe contends that in Patchak I, the Supreme Court invited Congress to restore the sovereign immunity that the Administrative Procedure Act §§ 551 et seq. (“APA”) had waived, and that Congress’s language in Gun Lake Act § 2(b) accepted that invitation by mirroring the language of the APA. See Brief for Respondent at 19. The Gun Lake Tribe argues further that Congress did not reverse any decision in Patchak I, as the Supreme Court referred only to Patchak’s prudential standing when it held that Patchak’s suit could proceed, and invited Congress to restore sovereign immunity. See Brief for Respondent at 40. 

Discussion 

PROPER SCOPE OF CONGRESS’ ABILITY TO DICTATE JUDICIAL RESULTS

The Federal Courts Scholars, in support of Patchak, argue that, if the Supreme Court deems the Gun Lake Act constitutional, Congress will now be able to dictate who wins or loses in pending cases before the federal courts. See Brief of the Federal Courts Scholars at 3. The Federal Court Scholars explain that the Gun Lake Act does not sufficiently amend the underlying law of Patchak’s case and, thus, allows Congress to impact the outcome of litigation directly rather than having to enact a general law that happens to affect pending litigation. See id. at 12. The problem with this, the Federal Courts Scholars point out, is a political one: Congress, unlike the Judiciary, is elected through majoritarian politics and must not be able to enact laws in a way that allows them to control how the laws will affect their constituents. See id. at 12-14. More broadly, the Federal Courts Scholars worry that a decision deeming the Gun Lake Act constitutional, thereby allowing the same body to make laws and dictate how they are applied to individuals, will violate core separation of powers concerns. See id. at 13.       

The Federal Respondents counter that the Gun Lake Act does not violate the separation of powers between the Legislature and Judiciary. In fact, the Federal Respondents claim, if Congress does not have the power to determine the jurisdiction of the federal courts, then the judiciary will actually gain too much power; this is because courts will be free to hear cases limited only by their own discretion. See Brief for the Federal Respondents at 42. The United States House of Representatives, in support of the Secretary and the Gun Lake Tribe, asserts that, in addition to affirming Congress’ constitutional authority to determine federal court jurisdiction, the Gun Lake Act also affirms Congress’ constitutional authority to enact laws relating to Indian matters, which the Constitution allows Congress to do “broadly” and that the power does not belong to the Judiciary. See Brief of Amicus Curiae the United States House of Representatives, in Support of Respondents at 6.       

IMPACT ON SURROUNDING AREA AND COMMUNITIES

Patchak argues that allowing the government to take the Bradley Property into trust for the Gun Lake Tribe disturbs the quiet and rural nature of the Wayland Township area, something he deems unique to the area and a reason why he decided to live there. See Patchak, 828 F.3d at 3. Specifically, Patchak claims that the gaming use for the Bradley Property could “irreversibly” alter the rural character of the community through increased traffic and pollution. See id. at 4. Patchak also voiced concern that the casino will take a disproportionate amount of local resources otherwise owed to existing residents. See id.

The Wayland Township, in support of the Secretary and the Gun Lake Tribe, asserts that the use of the Bradley Property has significantly improved the area’s economy, creating more than 1,000 jobs; furthermore, as of March 2017, the revenue from the Bradley Property to state and local government totaled $93 million. See Brief of Amici Curiae Wayland Township, Wayland Area Chamber of Commerce, and other Local Governments and Business Associations, in support of Respondent at 12, 17. The Federal Courts and Indian Law Scholars, in support of the Secretary and the Gun Lake Tribe, point out that the Gun Lake Act, and statutes like it, greatly benefits local Indian communities specifically, promoting independence and economic development among tribes in a tradition to help restore tribal lands that has been continuing for over 150 years. See Brief of Amici Curiae Federal Courts and Federal Indian Law Scholars, in Support of Respondents at 8. As the National Congress of American Indians explains, trust land furthers independence of Indian tribes by improving their socioeconomic position through the building of police departments and health care facilities. See Brief of Amicus Curiae the National Congress of American Indians, in Support of Respondents at 12. The Gun Lake Tribe explains that, when litigation creates a “cloud of uncertainty” over trust land, it deters building on or using the land, delaying or even halting these benefits. See Brief for Respondents, The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians at 23.

Edited by 

Acknowledgments 

 The authors would like to thank Professor Michael Dorf for his insights into this case.

Additional Resources