Patchak v. Zinke

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Patchak v. Zinke

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Conference of June 13, 2019

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
16-498	D.C. Cir.	Nov 7, 2017 Tr.Aud.	Feb 27, 2018	6-3	Thomas	OT 2017

Holding: David Patchak filed suit challenging the authority of the secretary of the Interior Department to take into trust a property (Bradley Property) on which Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians wished to build a casino. In an earlier appeal in the case, the Supreme Court held that the secretary lacked sovereign immunity and that Patchak had standing, and it remanded the case for further proceedings. Congress subsequently enacted the Gun Lake Act, which “reaffirmed as trust land” the Bradley Property, Section 2(a), and provided that “an action . . . relating to [that] land shall not be filed or maintained in a Federal court and shall be promptly dismissed,” Section 2(b). The court of appeals properly affirmed the district court’s dismissal of Patchak’s lawsuit pursuant to that statute.

Judgment: Affirmed, 6-3, in an opinion by Justice Thomas on February 27, 2018. Justice Thomas, joined by Justices Breyer, Alito and Kagan, concluded that Section 2(b) of the Gun Lake Act does not violate Article III of the Constitution. Justice Breyer filed a concurring opinion. Justice Ginsburg filed an opinion concurring in the judgment, in which Justice Sotomayor joined, concluding that Congress acted effectively to displace the Administrative Procedure Act’s waiver of immunity for suits against the United States — which enabled Patchak to launch this litigation — with a contrary command applicable to the Bradley Property. Justice Sotomayor filed an opinion concurring in the judgment, concluding that that Section 2(b) of the Gun Lake Act is most naturally read as having restored the Federal Government’s sovereign immunity from Patchak’s suit challenging the trust status of the Bradley Property. Chief Justice Roberts filed a dissenting opinion, in which Justices Kennedy and Gorsuch joined.

In Recess #7: "Robot Ban" (First Mondays)
Opinion analysis: Sharply divided court narrowly approves Congress’ power to resolve pending litigation (Ronald Mann)
OT2017 #6: "Year of Munsingwear" (First Mondays)
Argument analysis: Justices struggle to find the “beef” in challenge to congressional authority to resolve pending litigation (Ronald Mann)
OT2017 #5: “Oglethorpe’s Second Cousin” (First Mondays)
Argument preview: Indian case turns justices’ scrutiny to Congress’ power to use statutes to circumvent pending litigation (Ronald Mann)
In Recess #4: "Stone Soup" (First Mondays)
Today's orders (Amy Howe)
Petition of the day (Kate Howard)

Date	Proceedings and Orders (key to color coding)
Oct 11 2016	Petition for a writ of certiorari filed. (Response due November 14, 2016)
Nov 11 2016	Brief of respondent Match-E-Be-Nash-She-Wish band of Pottawatomi Indians in opposition filed.
Nov 14 2016	Waiver of right of respondent Sally Jewel, Secretary of the Interior, et al. to respond filed.
Nov 14 2016	Motion for leave to file amici brief filed by Federal Courts Scholars.
Nov 28 2016	Opposition of intervenor-respondent Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, to motion for leave to file amicus curiae brief of Federal Courts Scholars filed.
Nov 30 2016	DISTRIBUTED for Conference of January 6, 2017.
Dec 15 2016	Response Requested. (Due January 17, 2017)
Jan 12 2017	Order extending time to file response to petition to and including February 16, 2017.
Feb 15 2017	Order further extending time to file response to petition to and including March 20, 2017.
Mar 20 2017	Brief of Federal Respondents in opposition filed.
Apr 03 2017	Reply of petitioner David Patchak filed.
Apr 05 2017	DISTRIBUTED for Conference of April 21, 2017.
Apr 24 2017	DISTRIBUTED for Conference of April 28, 2017.
May 01 2017	Motion for leave to file amici brief filed by Federal Courts Scholars GRANTED.
May 01 2017	Petition GRANTED limited to Question 1 presented by the petition.
May 16 2017	The time to file the joint appendix and petitioner's brief on the merits is extended to and including July 13, 2017.
May 16 2017	The time to file respondents' briefs on the merits is extended to and including September 11, 2017.
Jul 12 2017	Joint appendix filed. (Statement of costs filed)
Jul 12 2017	Brief of petitioner David Patchak filed.
Jul 19 2017	Brief amici curiae of Federal Courts Scholars filed.
Aug 31 2017	SET FOR ARGUMENT on Tuesday, November 7, 2017
Sep 07 2017	CIRCULATED
Sep 11 2017	Brief of respondent Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians filed. (Distributed)
Sep 11 2017	Brief of Federal Respondents filed. (Distributed)
Sep 12 2017	Record requested from the U.S.C.A. District of Columbia Circuit.
Sep 15 2017	Blanket Consent filed by Respondent, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians on 09/15/2017
Sep 18 2017	Brief amici curiae of Wayland Township, et al. filed. (Distributed)
Sep 18 2017	Brief amicus curiae of U.S. House of Representatives filed. (Distributed)
Sep 18 2017	Brief amicus curiae of National Congress of American Indians filed. (Distributed)
Sep 18 2017	Brief amici curiae of Federal Courts and Federal Indian Law Scholars filed. (Distributed)
Sep 18 2017	Brief amicus curiae of Professor Edward A. Hartnett filed. (Distributed)
Sep 18 2017	Motion for divided argument filed by respondent.
Oct 10 2017	Motion for divided argument filed by respondent GRANTED.
Oct 11 2017	Reply of petitioner David Patchak filed. (Distributed)
Nov 07 2017	Argued. For petitioner: Scott E. Gant, Washington, D. C. For federal respondents: Ann O'Connell, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians respondent: Pratik A. Shah, Washington, D. C.
Feb 27 2018	Adjudged to be AFFIRMED. Thomas, J., announced the judgment of the Court and delivered an opinion, in which Breyer, Alito, and Kagan, JJ., joined. Breyer, J., filed a concurring opinion. Ginsburg, J., filed an opinion concurring in the judgment, in which Sotomayor, J., joined. Sotomayor, J., filed an opinion concurring in the judgment. Roberts, C. J., filed a dissenting opinion, in which Kennedy and Gorsuch, JJ., joined.
Apr 02 2018	JUDGMENT ISSUED.

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The Supreme Court will release orders from the June 13 conference on Monday at 9:30 a.m.; John Elwood's "Relist Watch" compiles the petitions that were relisted for this conference.
There is a possibility of opinions on Monday at 10 a.m.
On Thursday, the justices meet for their June 20 conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
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Recent Decisions
- Quarles v. United States Michigan’s third-degree home-invasion statute substantially corresponds to or is narrower than generic burglary for purposes of qualifying for enhanced sentencing under the Armed Career Criminal Act.
- Parker Drilling Management Services, Ltd. v. Newton Under the Outer Continental Shelf Lands Act, when federal law addresses the relevant issue, state law is not adopted as surrogate federal law on the Outer Continental Shelf.
- Return Mail Inc. v. United States Postal Service The federal government is not a “person” capable of petitioning the Patent Trial and Appeal Board to institute patent review proceedings under the Leahy-Smith America Invents Act.
- Azar v. Allina Health Services Because the Department of Health and Human Services neglected its statutory notice-and-comment obligations when it revealed a new policy that dramatically – and retroactively – reduced Medicare payments to hospitals serving low-income patients, its policy must be vacated.
- Fort Bend County, Texas v. Davis The charge-filing precondition to suit set out in Title VII of the Civil Rights Act of 1964 is not a jurisdictional requirement.
- Mont v. United States Pretrial detention later credited as time served for a new conviction tolls a supervised-release term under 18 U.S.C. §3624(e), even if the court must make the tolling calculation after learning whether the time will be credited.
- Taggart v. Lorenzen A creditor may be held in civil contempt for violating a bankruptcy court’s discharge order if there is no fair ground of doubt as to whether the order barred the creditor’s conduct.
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Current Relists
- Jordan v. City of Darien, Georgia Whether the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law.
- Klein v. Oregon Bureau of Labor and Industries (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith’s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.
- McGee v. McFadden (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.
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