David Patchak v. Sally Jewell

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2016 Decided July 15, 2016
No. 15-5200
DAVID PATCHAK,
APPELLANT
v.
SALLY JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF
THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01331)
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.
Before: ROGERS, PILLARD and WILKINS, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: David Patchak brought this suit
under the Administrative Procedure Act, 5 U.S.C. §§ 702,
705, challenging the authority of the Department of the
Interior to take title to a particular tract of land under the
Indian Reorganization Act (IRA), 25 U.S.C. § 465. The land,
called the Bradley Property, had been put into trust for the use
of the Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians in Michigan, otherwise known as the Gun Lake Band
or the Gun Lake Tribe.
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),
Pub. L. No. 113-179, 128 Stat. 1913 (2014), a stand-alone
statute reaffirming the Department of the Interior’s decision to
take the land in question into trust for the Gun Lake Tribe,
and removing jurisdiction from the federal courts over any
actions relating to that property. Taking into account this new
legal landscape, the District Court determined on summary
judgment that it was stripped of its jurisdiction to consider
Mr. Patchak’s claim. Holding additionally that the Act was
not constitutionally infirm, as Mr. Patchak contended, the
District Court dismissed the case.
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
3
discretion by denying Mr. Patchak’s motion to strike a
supplement to the administrative record.
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, 25 C.F.R. §§ 83.1-83.46, in 1992.
The Tribe was formally recognized by the Department of the
Interior in 1999. In 2001, the Tribe petitioned for a tract of
land in Wayland Township, Michigan – called the Bradley
Property – to be put into trust under the IRA. The Tribe
sought to use the land to construct and operate a gaming and
entertainment facility. The Bureau of Indian Affairs approved
the petition in 2005, placing the Bradley Property into trust
for the Tribe’s use. See Notice of Determination, 70 Fed.
Reg. 25596, 25596 (May 13, 2005). The Gun Lake Casino
opened on February 10, 2011.
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
4
August 1, 2008, invoking the court’s jurisdiction under the
Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 705.
Mr. Patchak claimed that he would be injured by the
construction and operation of a casino in his community
because it would, among other things, irreversibly change the
rural character of the area, increase traffic and pollution, and
divert local resources away from existing residents. Mr.
Patchak argued that because the Tribe was not formally
recognized when the IRA was enacted in June 1934, the
Secretary lacked the authority to put the Bradley Property into
trust for the Gun Lake Tribe. 1 The Gun Lake Tribe
intervened as a defendant.
In response to Mr. Patchak’s complaint, the United States
and the Tribe claimed that Mr. Patchak lacked prudential
standing because 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.
1
Mr. Patchak’s arguments on the merits of his claim rely heavily
on the Supreme Court’s decision in Carcieri v. Salazar, 555 U.S.
379 (2009), published after he initially filed his lawsuit. Carcieri
interpreted part of the recognition provision of the IRA, 25 U.S.C.
§ 479. 555 U.S. at 387-93. Because we do not reach the merits of
Mr. Patchak’s claim in this appeal, we do not consider the impact of
Carcieri in this case.
5
In the time between the Supreme Court’s prudential
standing determination and the parties’ renewed attention to
the case, both the Department of the Interior and Congress
weighed in further on the legal status of the Gun Lake Tribe
and the Bradley Property, respectively. First, the Department
of the Interior issued an Amended Notice of Decision
approving an application the Tribe had submitted for two
other parcels of land it sought to acquire. As part of this
Notice of Decision, the Secretary expressly considered, and
confirmed, its authority to take land into trust for the benefit
of the Gun Lake Tribe. Second, on September 26, 2014,
President Obama signed the Gun Lake Act into law. The
substantive text of the Gun Lake Act is as follows:
(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.
6
Gun Lake Act § 2.
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 that
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. Gun Lake Act § 2(b). Accordingly,
Patchak’s suit “shall not be . . . maintained . . . and shall be
promptly dismissed.” Id. Of course, this is only so if the Gun
Lake Act is not otherwise constitutionally infirm, as “a
statute’s use of the language of jurisdiction cannot operate as
a talisman that ipso facto sweeps aside every possible
constitutional objection.” Nat’l Coal. to Save Our Mall v.
Norton, 269 F.3d 1092, 1096 (D.C. Cir. 2001) (citing
RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER’S THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 368 (4th ed.
1996)). The federal courts have “presumptive jurisdiction . . .
7
to inquire into the constitutionality of a jurisdiction-stripping
statute.” Belbacha v. Bush, 520 F.3d 452, 456 (D.C. Cir.
2008).
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 Article III judicial power of the courts to
decide cases and controversies, in violation of well-
established constitutional principles of the separation of
powers. Article III imbues in the Judiciary “the ‘province and
duty . . . to say what the law is’ in particular cases and
controversies.” Bank Markazi v. Peterson, 136 S. Ct. 1310,
1322 (2016) (quoting Marbury v. Madison, 5 U.S. (1 Cranch)
137, 177 (1803)). This endowment of authority necessarily
“blocks Congress from ‘requir[ing] federal courts to exercise
the judicial power in a manner that Article III forbids.’” Id. at
1322-23 (quoting Plaut v. Spendthrift Farm, Inc., 514 U.S.
211, 218 (1995)).
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
8
superintend how [courts] decide those cases.” Id. at 1869.
Congress impermissibly encroaches upon the judiciary when
it “prescribe[s] rules of decision” for a pending case. United
States v. Klein, 80 U.S. (13 Wall.) 128, 146 (1871). In short,
Congress may not direct the result of pending litigation unless
it does so by “supply[ing] new law.” Robertson v. Seattle
Audubon Soc., 503 U.S. 429, 439 (1992). Mr. Patchak argues
that the Gun Lake Act did not provide any new legal standard
to apply, but rather impermissibly directed the result of his
lawsuit under pre-existing law.
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, Pub. L. No. 101-121, § 318, 103
Stat. 745 (1989). Id. at 433. It established rules to govern the
forest harvesting at issue in the pending consolidated cases,
and spoke expressly to those suits – even identifying them by
caption number. Id. at 433-35. If loggers complied with the
new rules, Congress posited, they would thereby satisfy the
statutory obligations on which the pending environmental
litigation rested. Id. The Ninth Circuit held that the
Northwest Timber Compromise unconstitutionally dictated
the outcome of pending litigation without amending the
underlying laws, but the Supreme Court disagreed. The Court
9
held that the legislation effectively “replaced the legal
standards underlying the two original challenges . . . without
directing particular applications under either the old or the
new standards.” Id. at 436-37. Because the provision
“compelled changes in law,” id. at 438, the Court concluded
that the provision “affected the adjudication of the
[specifically identified] cases . . . by effectively modifying the
provisions at issue in those cases,” id. at 440.
The Supreme Court’s recent Bank Markazi decision
likewise applied new legislation to pending 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, Pub. L. No. 112-158, § 502, 126 Stat. 1214, 1258, 22
U.S.C. § 8772 (2012) had been passed in order “[t]o place
beyond dispute” the availability of certain assets for
satisfaction of judgments rendered in certain specifically
identified terrorism cases. Bank Markazi, 136 S. Ct. at 1318.
The statute was enacted as a freestanding measure, not as an
amendment to the Foreign Sovereign Immunities Act of 1976
(FSIA) (which allows American nationals to file suit against
state sponsors of terrorism in United States courts, see 28
U.S.C. § 1605A), or the Terrorism Risk Insurance Act of
2002 (TRIA) (which authorizes execution of judgments
obtained under the FSIA’s terrorism exception against “the
blocked assets of [a] terrorist party”). Id. Rejecting a
challenge similar to the one Mr. Patchak pursues here – that
the provision “did not simply amend pre-existing law,” id. at
1325 Рthe Court held that Ҥ 8772 changed the law by
establishing new substantive standards,” id. at 1326. As the
Court explained, Ҥ 8772 provides a new standard clarifying
that, if Iran owns certain assets, the victims of Iran-sponsored
terrorist attacks will be permitted to execute against those
assets.” Id.
10
Our decision in National Coalition to Save Our Mall is
also instructive. There, we considered a separation-of-powers
challenge to a statute that withdrew from the federal courts
subject matter jurisdiction to review challenges to specific
executive decisions relating to the placement of the World
War II Memorial on the National Mall. 269 F.3d at 1096-97.
In rejecting that challenge, we emphasized that there is no
“prohibition against Congress’s changing the rule of decision
in a pending case, or (more narrowly) changing the rule to
assure a pro-government outcome.” Id. at 1096. And while
this Court “express[ed] no view” on the question whether a
court could do so without amending the substantive law on
which a pending claim rested, we did note that the provision
at issue (Public Law No. 107-11) “present[ed] no more
difficulty than the statute upheld in [Seattle Audubon], as
Public Law No. 107-11 similarly amend[ed] the applicable
substantive law.” 269 F.3d at 1097.
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 be 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
11
legislative action is not unconstitutional on that basis alone.
See Bank Markazi, 136 S. Ct. at 1327-28; Plaut, 514 U.S. at
239 n.9; Nat’l Coal. to Save Our Mall, 269 F.3d at 1097.
“Even laws that impose a duty or liability upon a single
individual or firm are not on that account invalid . . . .” Plaut,
514 U.S. at 239 n.9.
In passing the Gun Lake Act, Congress exercised its
“broad general powers to legislate in respect to Indian tribes,
powers that [the 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 First Amendment right to petition. See U.S. CONST.
amend. I (“Congress shall make no law . . . abridging . . . the
right of the people . . . to petition the Government for a
redress of grievances.”). The Petition Clause “protects the
right of individuals to appeal to courts and other forums
established by the government for resolution of legal
disputes.” Borough of Duryea v. Guarnieri, 564 U.S. 379,
387 (2011).
The right of access to courts is, without question, “an
aspect of the First Amendment right to petition the
government.” Id. (quoting Sure-Tan, Inc. v. NLRB, 467 U.S.
883, 896-97 (1984)); see also Cal. Motor Transp. Co. v.
Trucking Unltd., 404 U.S. 508, 513 (1972). It is an important
right, see Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731,
741 (1983), but it is not absolute, see McDonald v. Smith, 472
12
U.S. 479, 484 (1985). For example, an individual does not
have a First Amendment right of access to courts in order to
pursue frivolous litigation. Id. More to the point, the right to
access federal courts is subject to Congress’s Article III
power to define and limit the jurisdiction of the inferior courts
of the United States. See U.S. CONST. art. III, § 1; cf. Lauf v.
E.G. Shinner & Co., 303 U.S. 323, 330 (1938); Ameur v.
Gates, 759 F.3d 317, 326 (4th Cir. 2014). Congress may
withhold jurisdiction from inferior federal courts “in the exact
degrees and character which to Congress may seem proper for
the public good.” Palmore v. United States, 411 U.S. 389,
401 (1973) (quoting Cary v. Curtis, 44 U.S. (3 How.) 236,
245 (1845)).
Moreover, the 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, associate, 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
13
U.S. (3 How.) at 245). There is no constitutional infirmity
here.
C.
Mr. Patchak also claims that the Gun Lake Act implicates
his rights under the Fifth Amendment’s Due Process Clause.
The Fifth Amendment instructs that the federal government
may not deprive individuals of property “without due process
of law.” U.S. CONST. amend. V. In order to determine
whether there has been a violation of due process rights, we
undertake a two-part inquiry: first, we must determine
whether the claimant was deprived of a protected interest; and
second, if the claimant was so deprived, we then consider
what process the claimant was due. Logan v. Zimmerman
Brush Co., 455 U.S. 422, 428 (1982); Ralls Corp. v. Comm.
on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).
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 protection. Logan, 455 U.S. at
428 (analyzing due process rights under the Fourteenth
Amendment) (citing Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306 (1950)). Surely so, as “[t]he hallmark of
property . . . is an individual entitlement grounded in state
law, which cannot be removed except ‘for cause.’” Id. at 430
(quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S.
1, 11-12 (1978)). Once the legislature confers an interest by
statute, it may not constitutionally authorize the deprivation of
that interest without implementing appropriate procedural
safeguards. Id. at 432.
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
14
that is due. As discussed above, the legislature has the power
to change the underlying laws applicable to a case while it is
pending and, as a result, to alter the outcome of that case. See
Nat’l Coal. to Save Our Mall, 269 F.3d at 1096; see also
United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110
(1801) (where “a law intervenes and positively changes the
rule which governs, the law must be obeyed”).
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-created 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
property” 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.” 455 U.S. 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
15
that decision. It did not violate Mr. Patchak’s due process
rights by doing so.
D.
Mr. Patchak’s final constitutional challenge to the Gun
Lake Act is that it constitutes an impermissible Bill of
Attainder. See U.S. CONST. art. I, § 9, cl. 3. Under this
provision, Congress may not “enact[] ‘a law that legislatively
determines guilt and inflicts punishment upon an identifiable
individual without provision of the protections of a judicial
trial.’” Foretich v. United States, 351 F.3d 1198, 1216 (D.C.
Cir. 2003) (quoting Nixon v. Adm’r of Gen. Servs., 433 U.S.
425, 468 (1977)). A law is prohibited under the Bill of
Attainder Clause if two elements are met: (1) the statute
applies with specificity; and (2) the statute imposes
punishment. Id. at 1217. We are able to resolve Mr.
Patchak’s challenge on the second element alone, because the
Gun Lake Act is not punitive.
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:
(1) whether the challenged statute falls within the
historical meaning of legislative punishment;
(2) whether the statute, ‘viewed in terms of the type
and severity of burdens imposed, reasonably can be
said to further nonpunitive legislative purposes’; and
(3) whether the legislative record ‘evinces a
congressional intent to punish.’
16
Id. (quoting Nixon, 433 U.S. at 475-76, 478). These factors
are considered independently, and are weighed together to
resolve a bill of attainder claim. See Foretich, 351 F.3d at
1218. None of the three factors is necessarily dispositive, but
this Court has noted that the second factor – what is called the
“functional test” – “invariably appears to be the most
important of the three.” Id. (quoting BellSouth Corp. v. FCC,
162 F.3d 678, 684 (D.C. Cir. 1998)).
Historically, laws invalidated as 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 traditional ‘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 rational connection between the
burden imposed and [the] nonpunitive purposes.” Foretich,
17
351 F.3d at 1220-21. In other words, the means employed by
the statute must be rationally designed to meet its legitimate
nonpunitive goals.
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 ratifying 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 claim 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.
18
E.
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 Record “[f]or the reasons set forth in the
Memorandum Opinion” entered on the same date, see Order,
19
Patchak v. Jewell, Civil Action No. 08-1331 (RJL), Docket
No. 93 (D.D.C. June 17, 2015) – i.e., the District Court’s
determination, at issue in this appeal, that it was without
jurisdiction to consider the suit and that the case was to be
dismissed in its entirety, Patchak v. Jewell, 109 F. Supp. 3d
152 (D.D.C. 2015). The District Court only mentioned the
record supplement in the Procedural Background section of its
opinion in order to indicate the “events [that] have altered the
legal landscape” in the time since the case was remanded
from the Supreme Court. Id. at 158. The District Court did
not abuse its discretion by referencing that development in
this way. Nor did it abuse its discretion by denying a motion
to strike a supplement to the record at the same time that it
was dismissing the case in its entirety for lack of jurisdiction.
IV.
For the foregoing reasons, the District Court’s decisions
below are affirmed.
So ordered.