DAVID PATCHAK, APPELLANT v. SALLY JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., APPELLEES
No. 15-5200
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided July 15, 2016
Argued May 13, 2016
Before: ROGERS, PILLARD and WILKINS, Circuit Judges.
Sharon Y. Eubanks argued the cause and filed the briefs for Appellant.
Lane N. McFadden, Attorney, U.S. Department of Justice, argued the cause for federal Appellees. With him on the brief was John C. Cruden, Assistant Attorney General.
Nicole E. Ducheneaux and Conly J. Schulte were on the brief for intervenor Defendant-Appellees Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians.
WILKINS, Circuit Judge: David Patchak brought this suit under the Administrative Procеdure Act,
Following the Supreme Court‘s determination in 2012 that Mr. Patchak had prudential standing to bring this lawsuit, see Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2212 (2012), Congress passed the Gun Lake Trust Land Reaffirmation Act (the Gun Lake Act),
Mr. Patchak now appeals the dismissal of his suit, as well as a collateral decision regarding the District Court‘s denial of a motion to strike a supplement to the administrative record. For the reasons stated below, we affirm the District Court‘s determination that the Gun Lake Act is constitutionally sound and, accordingly, that Mr. Patchak‘s suit must be dismissed. We further conclude that the District Court did not abuse its
I.
The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the Gun Lake Tribe) is an Indian tribe whose members descend from a band of Pottawatomi Indians, led by Chief Match-E-Be-Nash-She-Wish, who occupied present day western Michigan. See Proposed Findings for Acknowledgement of the Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan, 62 Fed. Reg. 38113, 38113 (July 16, 1997). While the Tribe had been a party to many treaties with the United States government in the 18th and 19th centuries, it only began pursuing federal acknowledgement under the modern regulatory regime of the Bureau of Indian Affairs,
David Patchak lives in a rural area of Wayland Township commonly referred to as Shelbyville, in close proximity to the Bradley Property. Mr. Patchak asserts that he moved to the area because of its unique rural setting, and that he values the quiet life afforded him there. Mr. Patchak filed the present lawsuit against the Secretary of the Interior and the Assistant Secretary of the Interior for the Bureau of Indian Affairs on
In response to Mr. Patchak‘s complaint, the United States and the Tribe claimed that Mr. Patchak lacked prudential standing becаuse his interest in the Bradley Property was “fundamentally at odds with the purpose of the IRA” and he therefore did not fall within the IRA‘s “zone of interests.” Patchak v. Salazar, 646 F. Supp. 2d 72, 76 (D.D.C. 2009). The District Court agreed, and dismissed the complaint for lack of subject matter jurisdiction. Id. at 76, 79. Patchak appealed to this Court, and we reversed. See Patchak v. Salazar, 632 F.3d 702 (D.C. Cir. 2011). The Supreme Court agreed, holding that Patchak did indeed have prudential standing to bring his suit. See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, 132 S. Ct. at 2212. The case was remanded to the District Court for further proceedings.
(a) IN GENERAL.—The land taken into trust by the United States for the benefit of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians and described in the final Notice of Determination of the Department of the Interior (70 Fed. Reg. 25596 (May 13, 2005)) is reaffirmed as trust land, and the actions of the Secretary of the Interior in taking that land into trust are ratified and confirmed.
(b) NO CLAIMS.—Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.
(c) RETENTION OF FUTURE RIGHTS.—Nothing in this Act alters or diminishes the right of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians from seeking to have any additional land taken into trust by the United States for the benefit of the Band.
Shortly following the enactment of the Gun Lake Act, the parties filed motions for summary judgment. The District Court determined that, as a result of this legislation, it was now stripped of jurisdiction to consider Mr. Patchak‘s claim. See Patchak v. Jewell, 109 F. Supp. 3d 152, 159 (D.D.C. 2015). Rejecting Mr. Patchak‘s constitutional challenges to the Gun Lake Act, the District Court granted summary judgment in favor of the Government and the Tribe, and dismissed the case. Id. at 160-65. The District Court also denied Mr. Patchak‘s Motion to Strike the Administrative Record Supplement, which had challenged the addition of the Amended Notice of Decision to the record before the court. See Order, Patchak v. Jewell, Civil Action No. 08-1331 (RJL), Docket No. 93 (D.D.C. June 17, 2015). Mr. Patchak now appeals those decisions.
II.
The language of the Gun Lake Act makes plain thаt Congress has stripped federal courts of subject matter jurisdiction to consider the merits of Mr. Patchak‘s complaint, which undisputedly “relat[es] to the land described” in Section 2(a) of the Act.
Mr. Patchak‘s constitutional challenges to the Gun Lake Act are pure questions of law that we review de novo. See, e.g., Eldred v. Reno, 239 F.3d 372, 374 (D.C. Cir. 2001).
A.
Mr. Patchak first argues that the Gun Lake Act encroaches upon the
Congress is generally free to direct district courts to apply newly enacted legislation in pending civil cases. See Bank Markazi, 136 S. Ct. at 1325. Without question, “a statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts.” Id. This rule is no different when the newly enacted legislation in question removes the judiciary‘s authority to review a particular case or class of cases. See Nat‘l Coal. to Save Our Mall, 269 F.3d at 1096. It is well settled that “Congress has the power (within limits) to tell the courts what classes of cases they may decide.” City of Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013). Congress may not, however, “prescribe or
These principles do not require, as Mr. Patchak suggests, that in order to affect pending litigation, Congress must directly amend the substantive laws upon which the suit is based. Indeed, Supreme Court precedent belies such a contention.
In Seattle Audubon, for example, the Supreme Court considered the impact of new legislation on pending cases challenging the federal government‘s efforts to allow the harvesting and sale of old-growth timber in the Pacific Northwest. 503 U.S. at 431. The legislation was the Northwest Timber Compromise, a provision of the Department of the Interior and Related Agencies Appropriations Act, 1990,
The Supreme Court‘s recent Bank Markazi decision likewise applied new legislation to pеnding litigation. That legislation did not directly amend or modify the particular statute upon which the pending litigation was based. Section 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012,
Consistent with those decisions, we conclude that the Gun Lake Act has amended the substantive law applicable to Mr. Patchak‘s claims. That it did so without directly amending or modifying the APA or the IRA is no matter. Through its ratification and confirmation of the Department of the Interior‘s decision to take the Bradley Property into trust, expressed in Section 2(a), and its clear withdrawal of subject matter jurisdiction in Section 2(b), the Gun Lake Act has “changed the law.” Bank Markazi, 136 S. Ct. at 1326. More to the point, Section 2(b) provides a new legal standard we are obliged to apply: if an action relates to the Bradley Property, it must promptly bе dismissed. Mr. Patchak‘s suit is just such an action.
That this change has only affected Mr. Patchak‘s lawsuit does not change our analysis here, for Congress is not limited to enacting generally applicable legislation. Particularized
In passing the Gun Lake Act, Congress exercised its “broad general powers to legislate in respect to Indian tribes, powers that [thе Supreme Court] ha[s] consistently described as ‘plenary and exclusive.‘” United States v. Lara, 541 U.S. 193, 200 (2004). Accordingly, we ought to defer to the policy judgment reflected therein. Such is our role. Indeed, “[a]pplying laws implementing Congress’ policy judgments, with fidelity to those judgments, is commonplace for the Judiciary.” Bank Markazi, 136 S. Ct. at 1326.
B.
Mr. Patchak next asserts that the Gun Lake Act burdens his
The right of access to courts is, without question, “an aspect of the
Moreover, thе Gun Lake Act does not foreclose Mr. Patchak‘s right to petition the government in all forums; it affects only his ability to do so via federal courts. And while he argues that other forms of petition – such as seeking redress directly from the agency – would be futile, Patchak concedes that he is not entitled to a successful outcome in his petition, or even for the government to listen or respond to his complaints. Rightfully so. “Nothing in the First Amendment or in [the Supreme] Court‘s case law interpreting it suggests that the rights to speak, associаte, and petition require government policymakers to listen or respond to individuals’ communications on public issues.” Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984); see also We the People Found., Inc. v. United States, 485 F.3d 140, 141 (D.C. Cir. 2007).
By stripping federal courts of subject matter jurisdiction over challenges to the status of the Bradley Property, Congress has made its determination as to what is “proper for the public good.” Palmore, 411 U.S. at 401 (quoting Cary, 44
C.
Mr. Patchak also claims that the Gun Lake Act implicates his rights under the
Mr. Patchak identifies a potentially protected property interest in his unadjudicated claim. The Supreme Court has “affirmatively settled” that a cause of action is a species of property requiring due process prоtection. Logan, 455 U.S. at 428 (analyzing due process rights under the
But even assuming that there may be a property right to pursue a cause of action, in a challenge to legislation affecting that very suit, the legislative process provides all the process
In Logan, the Supreme Court acknowledged that “[o]f course,” a legislature “remains free to create substantive defenses or immunities for use in adjudication—or to eliminate its statutorily-creаted causes of action altogether—just as it can amend or terminate” benefits programs it has put into place. 455 U.S. at 432; cf. PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 92 (1980) (Marshall, J., concurring) (“[T]he Due Process Clause does not forbid the ‘creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.‘” (quoting Silver v. Silver, 280 U.S. 117, 122 (1929))). Indeed, “[n]o person has a vested interest in any rule of law, entitling him to insist that it shall remain unchanged for his benefit.” N.Y. Cent. R.R. Co. v. White, 243 U.S. 188, 198 (1917). Accordingly, while a cause of action may be a “species of proрerty” that is afforded due process protection, Logan, 455 U.S. at 428, there is no deprivation of property without due process when legislation changes a previously existing and still-pending cause of action, id. at 432. In such a circumstance, “the legislative determination provides all the process that is due.” Id. at 433.
We have no reason to except the Gun Lake Act from this general approach. Congress made a considered determination to ratify the Department of the Interior‘s decision to take the Bradley Property into trust for the Gun Lake Tribe, and further to remove any potential impediments to the finality of
D.
Mr. Patchak‘s final constitutional challenge to the Gun Lake Act is that it constitutes an impermissible Bill of Attainder. See
In order to decide whether a statute impermissibly inflicts punishment, we consider each case in “its own highly particularized context.” Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 852 (1984) (quoting Flemming v. Nestor, 363 U.S. 603, 616 (1960)). In so doing, we pursue a three-part inquiry:
- whether the challenged statute falls within the historical meaning of legislative punishment;
- whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes‘; and
- whether the legislative record ‘evinces a congressional intent to punish.’
Historically, laws invalidated аs bills of attainder “offer[ed] a ready checklist of deprivations and disabilities so disproportionately severe and so inappropriate to nonpunitive ends that they unquestionably have been held to fall within the proscription of [Article] I, § 9.” Nixon, 433 U.S. at 473. “This checklist includes sentences of death, bills of pains and penalties, and legislative bars to participation in specified employments or professions.” Foretich, 351 F.3d at 1218. Jurisdictional limitations are generally not of this type. See Ameur, 759 F.3d at 329 (“[J]urisdictional limits are usually not viewed as trаditional ‘punishment.‘“); Hamad v. Gates, 732 F.3d 990, 1004 (9th Cir. 2013) (“Jurisdictional limitations . . . do not fall within the historical meaning of legislative punishment.“); see also Scheerer v. U.S. Att‘y Gen., 513 F.3d 1244, 1253 n.9 (11th Cir. 2008) (declining to find that a “generally applicable jurisdictional rule” amounted to a bill of attainder in part because it “d[id] not impose punishment of any kind“); Nagac v. Derwinski, 933 F.2d 990, 991 (Fed. Cir. 1991) (jurisdictional limitation “d[id] not impose a punishment ‘traditionally adjudged to be prohibited by the Bill of Attainder Clause‘” (quoting Nixon, 433 U.S. at 475)).
The second prong of the inquiry, the “functional test,” requires that the legislation have “a legitimate nonpunitive purpose” and that there is “a rationаl connection between the burden imposed and [the] nonpunitive purposes.” Foretich,
The Gun Lake Act passes this test. The Gun Lake Act serves the legitimate nonpunitive purpose of “provid[ing] certainty to the legal status of the [Bradley Property], on which the Tribe has begun gaming operations as a means of economic development for its community.” S. REP. NO. 113-194, at 2 (2014). Congress accomplished this goal by affirming and rаtifying the Department of the Interior‘s initial decision to put the land into trust for the Tribe in Section 2(a), but also by removing jurisdiction over matters relating to the land in Section 2(b). In point of fact, Congress‘s intended goal of providing certainty with respect to the trust land would have been impossible to achieve absent the termination of any outstanding litigation – specifically, Mr. Patchak‘s suit. The legislative history reflects an acknowledgement of this fact, noting that Mr. Patchak‘s suit “places in jeopardy the Tribe‘s only tract of land held in trust and the economic development project that the Tribe is currently operating on the land.” Id. Whatever burden is imposed by Section 2(b), on Mr. Patchak or otherwise, the statute is rationally designed to meet its legitimate, nonpunitive purpose of providing certainty with respect to the trust land.
Finally, the legislative record does not evince a congressional intent to punish. Mr. Patchak has presented no evidence, other than the acknowledgement that his case would be affected, for his clаim that Congress purposefully targeted him for retaliation through the Gun Lake Act. While it may be true that Mr. Patchak was adversely affected as a result of the legislation, the record does not show that Congress acted with any punitive or retaliatory intent.
The Government suggests that there is an alternative ground on which we could rule, arguing that the Gun Lake Act provides an exemption to the APA‘s waiver of sovereign immunity. While the Government did not make this argument in the proceedings below, sovereign immunity is a threshold jurisdictional question that speaks to the court‘s authority to hear a given case, and so we would be well within bounds to consider the question. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). “Indeed, the ‘terms of the United States’ consent to be sued in any court define that court‘s jurisdiction to entertain the suit.‘” Id. (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). Nevertheless, because we conclude that the Gun Lake Act is not constitutionally infirm, and that subject matter jurisdiction over Mr. Patchak‘s claim has thus validly been withdrawn, we need not consider the matter further.
III.
In a separate challenge to the proceedings below, Mr. Patchak contends that the District Court erred by permitting the administrative record to be supplemented. We review the District Court‘s denial of Mr. Patchak‘s Motion to Strike the Administrative Record Supplement for abuse of discretion. Cf. Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008).
Although this case may not present circumstances typically permitting the agency to supplement the record, see id., the District Court‘s failure to strike the supplemental information provided to it was not an abuse of discretion. The District Court denied Mr. Patchak‘s Motion to Strike Supplemental Rеcord “[f]or the reasons set forth in the Memorandum Opinion” entered on the same date, see Order,
IV.
For the foregoing reasons, the District Court‘s decisions below are affirmed.
So ordered.