April 9, 2018

Congress Can Strip Courts of Jurisdiction over a Pending Case; Patchak v. Zinke

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Our system of government is based on a separation of powers, and the edges of the powers of the respective branches of government can get a bit fuzzy. In this fractured opinion, the Supreme Court tried clarifying the situation.

A band of an Indian tribe lives in Michigan. It identified some land where it wanted to build a casino and asked the Secretary of the Interior to take the land into trust on the Band’s behalf. The Secretary agreed.

A nearby landowner, Patchak sued, arguing that the Secretary lacked the statutory authority to take the land into trust for the Band. The Secretary moved to dismiss, arguing that Patchak (1) lacked standing, and (2) his claims were barred by sovereign immunity. The district court granted the motion, but that was reversed in a case which went to the Supreme Court.

After the case was remanded, Congress passed a law which said that the land at issue was “reaffirmed as trust land,” “ratified and confirmed” the Secretary’s actions, and stated that any action (including pending actions) related to the land “shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Based on this statute, the district court granted summary judgment to the Secretary, and the case was again appealed to the Supreme Court.

Justice Thomas wrote the opinion for the Court but was only joined by three other justices: Breyer, Alito, and Kagan. He noted that Congress has the legislative power, not the judicial power, and that it crosses the line when it “usurp[s] a court’s power to interpret and apply the law to the [circumstances] before it.”

To distinguish between permissible exercises of the legislative power and impermissible infringements of the judicial power, this Court’s precedents establish the following rule: Congress violates Article III when it “compel[s] … findings or results under old law.” But Congress does not violate Article III when it “changes the law.”

And the statute at issue here merely changes the law.

Specifically, it strips federal courts of jurisdiction over actions “relating to” the Bradley Property. Before the Gun Lake Act, federal courts had jurisdiction to hear these actions. Now they do not. This kind of legal change is well within Congress’ authority and does not violate Article III.

Justice Thomas noted that Congress always maintains the power to limit the jurisdiction of federal courts, and when it does so, “it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it.”

Patchak argued that this law crossed the line because it specifically directed courts to dismiss cases. But the Court disagreed because the new statute “does not flatly direct federal courts to dismiss lawsuits under old law. It creates new law for suits relating to the Bradley Property.” And the language Patchak pointed to was merely “mandatory language” that described “the consequences of a court’s determination that it lacks jurisdiction.”

Patchak also argued that the statute interferes with the Court’s decision in Patchak I. But the Court found there was no reason why Congress could not limit jurisdiction retrospectively.

Of course, we recognize that the Gun Lake Act was a response to this Court’s decision in Patchak I. The text of the Act, after all, cites both the administrative decision and the property at issue in that case. And we understand why Patchak would view the Gun Lake Act as unfair. By all accounts, the Band exercised its political influence to persuade Congress to enact a narrow jurisdiction-stripping provision that effectively ends all lawsuits threatening its casino, including Patchak’s.

But the question in this case is “[n]ot favoritism, nor even corruption, but power.” Under this Court’s precedents, Congress has the power to “apply newly enacted, outcome-altering legislation in pending civil cases,” even when the legislation “govern[s] one or a very small number of specific subjects.”

Justices Ginsburg and Sotomayor concurred separately, and their thesis was clear:

What Congress grants, it may retract. That is undoubtedly true of the Legislature’s authority to forgo or retain the Government’s sovereign immunity from suit. The Court need venture no further to decide this case.

Justice Sotomayor then wrote separately herself to explain her thought process further:

I agree with the dissent that Congress may not achieve through jurisdiction stripping what it cannot permissibly achieve outright, namely, directing entry of judgment for a particular party. I also agree that an Act that merely deprives federal courts of jurisdiction over a single proceeding is not enough to be considered a change in the law and that any statute that portends to do so should be viewed with great skepticism. I differ with the dissent’s ultimate conclusion only because, as Justice Ginsburg explains, the Gun Lake Trust Land Reaffirmation Act should not be read to strip the federal courts of jurisdiction but rather to restore the Federal Government’s sovereign immunity.

The remaining three justices dissented, with Chief Justice Roberts writing. He noted that the Constitution was written as it was to reflect the “concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person,” and that Congress violates this principle “when it arrogates the judicial power to itself and decides a particular case.” The Chief Justice found that this is exactly what happened here, as Patchak’s case was the only pending case dealing with the property, and the statute of limitations would prevent any other litigation. This “brazen” attempt to decide the outcome of this case was simply too much.

Contrary to the plurality, I would hold that Congress exercises the judicial power when it manipulates jurisdictional rules to decide the outcome of a particular pending case. Because the Legislature has no authority to direct entry of judgment for a party, it cannot achieve the same result by stripping jurisdiction over a particular proceeding. Does the plurality really believe that there is a material difference between a law stating “The court lacks jurisdiction over Jones’s pending suit against Smith” and one stating “In the case of Smith v. Jones, Smith wins”? In both instances, Congress has resolved the specific case in Smith’s favor.

What’s the rule going forward? Thanks to the fractured decision of the Court, it is not exactly clear. But what is clear is that well-connected defendants now have another way to defend themselves against lawsuits—get the legislature to strip courts of jurisdiction to hear the disputes.

Lessons:

  1. Congress may prevent federal courts from hearing certain types of cases, even if there is only one case of that type and it is currently pending.
  2. It is unclear whether this is a proper exercise of Congress’s power to limit the jurisdiction of federal courts or to reassert sovereign immunity.
  3. The plurality opinion of Justice Thomas conflicts with the Court’s efforts in other cases “to rein in the profligate use of the term jurisdiction.” Nothing in the statute specifies that it is “jurisdictional” but that’s the concept on which the plurality rests its analysis and will likely be the concept that Congress uses in the future when it seeks to overrule the judicial outcome in a case.