Did Congress Go Too Far? Take Two of Tribal Land Dispute at SCOTUS

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By Melissa Heelan Stanzione

The U.S. Supreme Court—again—heard arguments Nov. 7 in a dispute over land in Michigan placed in trust by the government for an American Indian tribe.

This time, the court faces a separation of powers showdown. The question before the justices turns on whether Congress acted appropriately in passing a law directing courts to dismiss the petitioner’s complaint in Patchak v. Zinke , U.S., No. 16-498 , argued 11/7/17 .

It was an active bench in Patchak, with questions from all justices except Clarence Thomas. Chief Justice John G. Roberts Jr. even extended the time for two of the three attorneys arguing so the justices could complete their questions and allow time for answers and a rebuttal.

The case could further define how far a congressional act can encroach upon the role of the judiciary by ordering the outcome of a case.

The high court in Bank Markazi v. Peterson in 2016 said that the U.S. Constitution “bars Congress from telling a court how to apply pre-existing law to particular circumstances.”

The court also held, however, that “Congress may amend a law and make the amended prescription retroactively applicable in pending cases,” upholding a statute specifying that assets in a pending terrorism suit against Iran were available to satisfy judgments.

Patchak I, II

David Patchak first filed suit in 2008 under the Administrative Procedures Act, arguing that the Department of Interior didn’t have authority to put land not far from his home in trust for the Gun Lake Tribe. Patchak opposed the tribe’s plans for a casino on the site.

The high court held in 2012 that he could sue the government because sovereign immunity didn’t apply.

Patchak’s second appearance at the court, however, could help define the limits of judicial and legislative power.

After Patchak’s first case was sent back to the district court, Congress passed a law saying that any lawsuits pending in federal court relating to the land at issue here “shall be promptly dismissed.”

The district court did so and the U.S. Court of Appeals for the District of Columbia Circuit affirmed the dismissal.

Patchak now argues that the new law unlawfully terminates his litigation. He says it violates the U.S. Constitution’s separation of powers principles because it’s an impermissible congressional overreach upon the judiciary’s role.

But the government argues that Congress is authorized to determine the jurisdiction of the federal courts. The statute simply amends jurisdiction, which is within Congress’s power, it said.

Search for Rule

The statute isn’t jurisdictional because it doesn’t say that it is, Scott E. Gant of Boies, Schiller & Flexner LLP, Washington, argued for Patchak.

But if it is, what is your separation of powers rule? Justice Samuel A. Alito Jr. asked Gant.

If a statute is construed as a jurisdiction-stripping statute, it’s not automatically “immunized” and must be subject to a separation-of-powers analysis, Gant said.

This analysis involves two “touchstone principles,” Gant said: Whether Congress has exercised judicial power, and whether it has “prevented the courts from fulfilling their constitutionally assigned responsibilities.”

What makes this statute unconstitutional if it’s jurisdiction-stripping? Justice Elena Kagan asked Gant.

Congress changed the outcome of this one case without changing any law, Gant said.

Congress is changing jurisdiction and in doing so, it’s changing the law, Kagan said. “We haven’t said Congress has to change substantive law,” she said.

It’s important to look at the particulars of a case and determine whether Congress was “directing the outcome of particular cases,” Gant said later on.

But any time Congress strips jurisdiction in pending cases, it directs their outcomes and we’ve said many times that’s “perfectly fine,” Kagan said.

“This may be an example of what the Court has talked about in other contexts where line-drawing can be hard,” Gant said.

Looking for Limits

The justices also asked Ann O’Connell, arguing for the government, to define Congress’ power.

Is there any limit on Congress’ power to direct the outcome of pending cases? Roberts asked O’Connell.

If Congress passed a law saying in the lawsuit Smith v. Jones, Smith wins, that wouldn’t work because it’s not changing any underlying law, she said.

So “we should look at this and decide whether we think this is in substance different from ‘Smith wins’?” Roberts asked.

The statute is broader than that, she said. It’s not saying “Smith wins” but rather “there’s no jurisdiction over the suit.”

A lot in the government’s argument hinges on whether the statute is jurisdictional, Justice Neil M. Gorsuch said.

“And this Court in recent years has instructed that we’re not going to lightly assume Congress is stripping jurisdiction,” he said.

There are “a lot of different things at play” in the wording of the statute that make this jurisdictional, O’Connell said.

It says not only that the cases can’t be maintained in a federal court, but also that they can’t be filed, which “speaks to jurisdictional terms,” she said.

The statute calls for dismissal of suits “relating to the land,” Justice Sonia Sotomayor said.

Does this include slip and fall suits? Sotomayor asked.

The statute is broad but it “at least” covers suits relating to the trust status of the property, O’Connell said.

All that’s left for the court to determine regarding jurisdiction-stripping statutes like this one is “whether this case falls within that category and then it should dismiss,” she said.

Walk the Line

An “administrable line” in a separation of powers case is one that completely excludes the courts from adjudicating an issue, like here, Pratik A. Shah said.

Shah, of Akin Gump Strauss Hauer & Feld LLP, Washington, represented the Gun Lake Tribe, which was a respondent in the case, along with the government.

It’s different if the federal courts have jurisdiction but Congress restricts their power to adjudicate, he said.

If you completely exclude the court from adjudicating, there’s no separation of powers issue, Shah said.

How is legislation saying in Jones v. Smith, Smith loses, different from legislation saying in Jones v. Smith, there’s no jurisdiction, and thus Smith loses? Kagan asked Shah.

What if the statute says “in order to ensure that Smith wins, there shall be no jurisdiction,” Justice Anthony M. Kennedy asked.

You’re taking away jurisdiction to have a particular result in litigation, he said.

The result, however, is different because “there’s no merits judgment, no award of relief, and there’s no res judicata effect,” Shah said.

Shah asked the court to look at the words of the statute, which Congress enacted to insulate a category of cases from federal court jurisdiction.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

Oral argument transcript at http://src.bna.com/t39.

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