[00:00:01] Speaker 00: Case number 15-5200, David Pacek, Appellant vs. Sally Jewell, and her official capacity as Secretary of the United States Department of the Interior at L. Ms. [00:00:12] Speaker 00: Eubanks for the Appellant, Mr. McBadden for the Appellate. [00:00:47] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:00:50] Speaker 03: My name is Sharon E. Banks, and I represent David Patchett. [00:00:53] Speaker 03: I'd like to begin the argument this morning addressing the 28J's submission that was made by the government regarding the Bank-McHarsey v. Peterson case, which was decided by the Supreme Court on the 20th of April. [00:01:08] Speaker 03: Basically, to facilitate the collection of judgments, and this is in the Markazi case, obtained from victims of Iran-sponsored terrorism, Congress enacted a particular statute making bond assets subject to execution in order to satisfy judgments. [00:01:30] Speaker 03: That was Section 8772, and it was a consolidated enforcement proceeding. [00:01:37] Speaker 03: Bank Markazi, the central bank of Iran, actually argued that that was violative of separation of powers doctrine. [00:01:45] Speaker 03: In its decision, the Supreme Court found that it was not. [00:01:51] Speaker 03: The government cites to that case saying that it's dispositive of the claims that Mr. Pachak makes. [00:01:57] Speaker 03: regarding separation of powers, and I'm here to distinguish that case for you. [00:02:02] Speaker 03: Ben Markazi involved a new legal standard that applied to a set of undisputed facts. [00:02:09] Speaker 03: The statute covered a category of post-judgment execution claims filed by numerous plaintiffs who, in multiple civil actions, obtained evidence-based judgments against Iran. [00:02:22] Speaker 03: Now, there is a material dispute in the Patchak case. [00:02:26] Speaker 03: In Patchak, the question as to whether federal jurisdiction and federal recognition are the same thing is a hotly disputed question. [00:02:35] Speaker 03: In Patchak, the question of compliance with the Supreme Court's decision in Carcieri [00:02:41] Speaker 03: that it is a requirement in order to take land and to trust for a tribe, that the tribe must be under federal jurisdiction, is something that was raised initially in 2008 when Mr. Patchak filed his original complaint. [00:02:56] Speaker 03: But Ms. [00:02:58] Speaker 02: Eubanks, I think the stronger point of analogy with the Banco Marchese case is subsection A of the statute, which doesn't speak to the treatment of the trust lands under the IRA, but is a separate congressional [00:03:17] Speaker 02: taking into trust of the land. [00:03:20] Speaker 02: It's in effect saying one of the things that Congress can do is just by new legislation take land into trust and so they're ratifying and confirming what they characterize as having been done before but it's basically a new [00:03:40] Speaker 02: basis apart from the Indian Reorganization Act for the trust? [00:03:45] Speaker 02: And if we are to characterize it that way, the question I think is do you have any additional way of distinguishing Benkmar Casey? [00:03:56] Speaker 03: Yes, absolutely. [00:03:57] Speaker 03: In terms of the two sections of the Gun Lake Act, [00:04:00] Speaker 03: There is the gun leg act was not an amendment to an existing statute. [00:04:05] Speaker 03: And that's one of the things that Mark Ozzie does talk about. [00:04:08] Speaker 03: It talks about the fact that Congress may go ahead and amend a statute and that that consideration is something that [00:04:15] Speaker 03: gives rise to an ability to be able to make these changes. [00:04:20] Speaker 03: In terms of distinguishing Klein, what Markazzi talked about was that the court noted that Klein didn't inhibit Congress from amending applicable law. [00:04:33] Speaker 03: Now here, the affirmation of Indian trust land, Your Honor, and the provision that you referred to Part A, speaking as to reaffirmation of the trust land, [00:04:41] Speaker 03: and actions of the Secretary being ratified and confirmed still place this under the authority of the Secretary, notwithstanding the arguments that the government is making that this is a case where we are looking at the inherent power of Congress to pass laws dealing [00:04:59] Speaker 03: with Indians and to address these issues, that's actually not what happened here. [00:05:03] Speaker 03: And that's important to bear in mind. [00:05:05] Speaker 03: What happened here was the reaffirmation of Indian trust land, the Gumlake Act, was passed and it simply said that it reaffirmed the trust land. [00:05:15] Speaker 03: Reaffirming the trust land or reaffirming as trust land [00:05:19] Speaker 03: The actions of the secretary being ratified isn't the same thing as saying that the APA is out the window, that the APA is not something that needs to be considered. [00:05:31] Speaker 03: What Congress did was put the law out there in Part A and Part B, and I recognize that the intervener takes the position that, well, we can split this and Part A will survive. [00:05:43] Speaker 03: It's not at all clear what that would mean and whether Part A should survive because of the ambiguity here regarding what does it mean to ratify the actions of the Secretary and to confirm them. [00:05:54] Speaker 03: What is clear here is that the no claims provision singled out a single person, David Patchak, with regards to whether he could pursue his lawsuit. [00:06:05] Speaker 03: And worse than just singling him out, [00:06:07] Speaker 03: It directed the court as to how to do that, and it says that it shall be promptly dismissed. [00:06:15] Speaker 03: Now that is another determination that's completely different from the Marcasi case. [00:06:21] Speaker 03: There was no instruction governing one case only in Marcasi again. [00:06:25] Speaker 03: There were 16 suits, and each retained its separate character. [00:06:29] Speaker 03: The other thing that the court noted in Marcasi was that as in Klein, the court adopted a couple of really important points here. [00:06:38] Speaker 03: One, the statute in Klein infringed on the judicial power not because it left too little for the court to do, but it attempted to direct the result without altering the legal standards governing in Klein the effect of a pardon. [00:06:54] Speaker 03: So as the court offered in its [00:06:57] Speaker 03: the significance of Klein as discussed in Marcasi, the court said, Congress may not exercise its authority, including its power to regulate federal jurisdiction, in a way that requires a federal court to act unconstitutionally. [00:07:13] Speaker 03: And that's the entire point of Mr. Patchak's appeal, that there are a number of constitutional infirmities that exist, and that the powers set forth in, that the separation of powers [00:07:27] Speaker 03: clarified or addressed and clined discussed in the Marcasi decision does not in any way eradicate the claims that he raises here. [00:07:37] Speaker 03: In fact, the Marcasi case is helpful because it does make it clear that that was not just one case, and the court goes on to talk about, well, if it had been one case, that would mean something. [00:07:48] Speaker 03: It was consolidated action. [00:07:50] Speaker 03: Furthermore, as I said before, it was attached to another statute and an appeal. [00:07:55] Speaker 03: to make clear what assets would be reachable in these terrorism cases. [00:08:01] Speaker 03: So when we look at the plenary power of Congress, [00:08:06] Speaker 03: really not relevant whether the Bradley track was taken into trust under an improper and capricious exercise of the Secretary of Interior's power, because Congress, the intervener argues here, and the government as well, has a right to exercise its sovereign immunity. [00:08:26] Speaker 03: I want to distinguish a very important point that is made regarding the APA and sovereign immunity. [00:08:35] Speaker 03: Both the government and the intervener take the position that because the Gone Lake Act itself called out a requirement to [00:08:50] Speaker 03: Mr. Patchak's case, a requirement of dismissal of his case, that that particular action was something that was an APA's general waiver of sovereign immunity was applicable there because it excluded any other decisions that would lead to a [00:09:14] Speaker 03: a dismissal of a lawsuit or impliedly or expressly forbid the relief that is sought. [00:09:21] Speaker 03: We should look at the entirety, though, of the statute itself, of the Gunn-Lake Act, because it is not a grant of consent to suit. [00:09:32] Speaker 03: It is not a waiver of sovereign immunity. [00:09:34] Speaker 03: In fact, it's just the opposite. [00:09:36] Speaker 03: It's stating expressly what it is that cannot be done, that the suit may not survive, and that's very different from what the Supreme Court discussed when it heard [00:09:46] Speaker 03: Mr. Patchak's case itself and found that the Quiet Title Act was inapplicable there. [00:09:53] Speaker 02: Miss, you guys, can I just ask you to pin down for us what property right your client is claiming exactly? [00:10:02] Speaker 02: Sometimes it seems to me that it's a cause of action, right to use the courts on an unaccrued cause of action, his real property near this casino site. [00:10:16] Speaker 02: If you could just clarify for us if it's one or all of those things and in relation to which aspects of your claim. [00:10:22] Speaker 03: Thank you, Your Honor. [00:10:23] Speaker 03: I'll certainly try. [00:10:24] Speaker 03: Mr. Patchak brought his suit in order to protect his interests [00:10:30] Speaker 03: originally his interest in real property and his rights to the quiet enjoyment thereof. [00:10:37] Speaker 03: But in this litigation, he also claims that his lawsuit was a particular property right, particularly after the Supreme Court, who heard the case, made a determination that he had standing [00:10:50] Speaker 03: to bring that case. [00:10:51] Speaker 02: He has standing, but as I read the cases, a claim until it accrues, well, until it actually reaches final judgment, it doesn't have a property status. [00:11:03] Speaker 02: That we have a lot of law from the Supreme Court and elsewhere telling us that Congress has the power to change governing substantive law in a way that radically diminishes and alters [00:11:19] Speaker 02: things of value to individuals and that it can do that when a case is pending. [00:11:24] Speaker 02: So I'd like to hear more about what you mean by his claim having a property quality. [00:11:32] Speaker 03: Admittedly, it's a difficult argument to make because the question of finality. [00:11:37] Speaker 03: He did have a finding specifically allowing him [00:11:40] Speaker 03: to bring his claim because he had the standing to do that, and he had taken that all the way to the Supreme Court, which is unusual in any instance. [00:11:48] Speaker 03: I would concede to the court that it is difficult to make that argument, that that is a final judgment, but our position here is that that determination was something that he had a right [00:11:59] Speaker 03: to take to its conclusion in a court of law. [00:12:03] Speaker 03: What that standing meant, and the Supreme Court was clear on this, was only that he could pursue his case, not that he necessarily should win it. [00:12:12] Speaker 03: And looking at it from that viewpoint, having taken the case all the way to the Supreme Court, we maintain that that is an issue that gives rise to his property right. [00:12:22] Speaker 03: I also want to touch on another, I think, really important part of his case, and it is the bill detainer aspect. [00:12:31] Speaker 02: Although let me stop you right there, because my reading of the Bill of Attainter cases is that they apply to not only to the kind of targeted action that you've identified here, but to targeted action that imposes punishment. [00:12:47] Speaker 02: And the punishment that the Bill of Attainter clause refers to according to the Supreme Court is punitive, is criminal type punishment. [00:12:57] Speaker 02: And I don't see that here. [00:13:00] Speaker 03: This court's decision in Fortich is directly on point. [00:13:04] Speaker 03: And in Fortich, the court outlined three different ways that you look at the meaning of what's punitive and sort of brought it into, if you will, modern day actions. [00:13:15] Speaker 03: There's a historical context, meaning that it's legislative punishment in a historical sense. [00:13:21] Speaker 03: and it goes through some length and it's obviously a different case, but to look at the facts of what happened in Fortich and to compare those with what happened in the incident matter is something that I think is very useful to the court. [00:13:37] Speaker 03: In Fortich, the [00:13:40] Speaker 03: Congress enacted a law that forbade Mr. Fortich from seeing his minor daughter in visitation after he was divorced from his wife unless the daughter decided that it was okay. [00:13:54] Speaker 03: And ultimately the mother fled with the daughter overseas and then Congress enacted the Elizabeth Morgan Act so that she could come home and so that [00:14:06] Speaker 03: And he still had a problem though because it called out specifically him and only him for punishment. [00:14:13] Speaker 03: He maintained that the fact that the act was passed and he could not see his daughter and he couldn't change the act because he testified in Congress before the act became law and they tried to bargain with him to get him to take a particular position. [00:14:28] Speaker 03: But the only punishment that that has was a statute that said that he couldn't undertake a particular action. [00:14:35] Speaker 03: That's very similar to what we have here. [00:14:38] Speaker 03: In Fortitch, they apply the historical test, a functional test, and a motivational test to make the determination of what constituted punishment for these purposes. [00:14:49] Speaker 03: One of the cases that actually it's Cummings versus Missouri says that disqualification, some of the things that might [00:15:00] Speaker 03: involve punishment include disqualification from the pursuits of a lawful abacation, or from positions of trust, or from privilege of appearing in the courts, or as acting as an executor, administrator, or guardian. [00:15:15] Speaker 03: And now, to be fair, this court did not say, that's fine, we adopt all of that. [00:15:22] Speaker 03: They said that's sort of an uphill battle. [00:15:24] Speaker 03: But in applying the rational connections, [00:15:28] Speaker 03: that they did to the actions and how they affected Dr. Fortage. [00:15:32] Speaker 03: I think it's very similar to what we have with respect to Mr. Pachat. [00:15:38] Speaker 03: All right. [00:15:39] Speaker 03: Why don't we hear from counsel? [00:15:53] Speaker 03: Good morning. [00:15:53] Speaker 01: Good morning, Your Honors. [00:15:54] Speaker 01: May it please the Court, my name is Lane McFadden, here on behalf of the United States Department of the Interior. [00:16:00] Speaker 01: The separation of powers issues raised by Mr. Patchak in this case have been asked of this Court previously, and this Court has answered them already in both Anteloc and in the National Coalition to Save Our Mall case. [00:16:11] Speaker 01: In Angeloc, this court walks through the law dating back to the very beginning of the 19th century, discussing Congress's ability to remove cases or certain types of cases from the jurisdiction of the inferior federal courts, and it included, as the Supreme Court has many times, that Congress may do so without violating the Constitution, so long as it does not expand the jurisdiction of the federal courts beyond the outer bounds provided by Article III of the Constitution. [00:16:36] Speaker 01: National Coalition to Save Our Mall applies that rule in a more analogous case. [00:16:41] Speaker 01: That, too, is a multi-pronged statute, one of which reaffirmed the legality of a previously made agency decision, and another prong of it removed the right to judicial review of that decision from the federal courts. [00:16:54] Speaker 01: This court said that is perfectly within Congress's power within Article 3. [00:17:00] Speaker 01: And as the court pointed out in Angelock and briefly in that case as well, that's doubly true where you have a situation where the only cause of action and the only waiver of sovereign immunity granted by Congress is found in the APA. [00:17:13] Speaker 01: This is a case that existed at its outset solely at the grace of Congress, and it is well within Congress's congressional authority to remove that case from the federal courts, and it is done in subsection B of the Gun Lake Act. [00:17:25] Speaker 01: Given that Congress may do so, I think the District Court probably dismissed for want of subject matter jurisdiction and didn't have to reach the merits of Mr. Patchak's question about the Secretary's authority and expressly declined to do so. [00:17:41] Speaker 01: But as Your Honors I think have pointed out, an argument here today, subsection A, certainly does speak to those merits and it sort of [00:17:49] Speaker 01: I don't want to say preempts, but it sort of supersedes the initial question of whether the Secretary originally had authority under the Indian Rate Organization Act. [00:17:59] Speaker 02: So we need to reach the subsection B issue, the sort of Klein issue broadly framed, before we reach the subsection A issue, because the subsection B issue is the subject matter jurisdiction issue. [00:18:08] Speaker 01: Yes, you have to look at subsection B first because it dictates whether subsection A is even one that this court can consider. [00:18:18] Speaker 01: The district court dismissed for want of jurisdiction under subsection B and there's really nothing that's been put forth here today that would suggest that was incorrect. [00:18:28] Speaker 01: The Supreme Court has spoken to this, obviously, very recently in Banco Marcazi. [00:18:32] Speaker 01: And while the statute there is somewhat different in that it established a new legal standard to apply to specific facts, as counsel has pointed out, that's precisely what the Supreme Court has routinely held Congress may do. [00:18:48] Speaker 01: If Congress is to violate Klein, it could only do so. [00:18:51] Speaker 01: And I'm quoting here from Robertson, the Forest Service case from the early 90s. [00:18:55] Speaker 01: It may not direct any particular findings of fact or applications of law old or new to facts. [00:19:01] Speaker 01: That is not what subsection A does, and nor is it what subsection B does. [00:19:07] Speaker 01: And so in that sense, it does not violate Klein. [00:19:10] Speaker 01: In the 140 years since Klein was enacted, the federal courts have yet to find that it invalidated another act of Congress. [00:19:17] Speaker 01: And this one, too, is far more akin to that one, upheld by this court and national coalition to save them all. [00:19:24] Speaker 01: and to the jurisdiction stripping provision at issue in Antelope. [00:19:29] Speaker 01: The Congress has simply said the suit shall not be maintained in the federal courts, and that is well within its authority both to remove the cause of action under the APA that originally was pled in the complaint and also to define the contours of the Article III jurisdiction of the inferior federal courts. [00:19:47] Speaker 01: The Council suggested that the quotation in our brief from Section 702 in the APA is incorrect, [00:19:54] Speaker 01: I think there's something to that. [00:19:56] Speaker 01: But if you look at 7021 rather than 7022, 7021 makes clear that the APA shall have no effect on any other statute precluding judicial review or requiring the courts to perform any other more specific duty. [00:20:10] Speaker 01: And that is precisely what subsection B does. [00:20:13] Speaker 01: With some clarity, it is entitled no claims. [00:20:15] Speaker 01: It says that claims such as Mr. Patchak's, and he doesn't dispute that he falls within subsection B, [00:20:21] Speaker 01: shall not be filed or maintained in the federal courts. [00:20:24] Speaker 01: There's no ambiguity as to its effect on the jurisdiction of the court. [00:20:28] Speaker 01: And given that the court lacks jurisdiction, that resolves the matter before you hear, I think, without need to engage in any further inquiry. [00:20:37] Speaker 01: Any questions? [00:20:38] Speaker 01: No. [00:20:39] Speaker 01: Thank you. [00:20:39] Speaker 01: No further questions? [00:20:40] Speaker 01: I ask the district court be affirmed. [00:20:41] Speaker 03: Thank you. [00:20:44] Speaker 03: All right. [00:20:44] Speaker 03: Councilor Pellin? [00:20:50] Speaker 03: The Marcasi decision is controlling notwithstanding counsel's comments about to save our mall. [00:20:56] Speaker 03: Obviously, that's a decision of this court, but Marcasi did clarify what the issue was regarding decline. [00:21:03] Speaker 03: And so far as what this court should do at the end of the day, it should remand with instructions to vacate the motion to strike. [00:21:11] Speaker 03: That's important here because we're talking about the merits of the action when we look at the support and the administrative record and what the administrative record was supposed to contain. [00:21:23] Speaker 03: If this case does go back on remand, [00:21:27] Speaker 03: It's important to look at those issues, and I know that wasn't something that was addressed when I was up here before, but I would urge the Court to take a close look at that and the motion to strike, the basis for it, what constitutes the administrative record. [00:21:41] Speaker 03: Furthermore, there is another action of the Secretary regarding two other tracts of land. [00:21:47] Speaker 03: So, you know, we need not think that this is necessarily going to be the end of this case. [00:21:52] Speaker 03: There's a six-year statute of limitations under the APA. [00:21:55] Speaker 03: And with respect to what is to be done there and the current record, that's a different and separate record we maintain from the original record that was before the court that formed the basis on which the decision of the secretary was made. [00:22:09] Speaker 03: What the government has done here is stuffed into the older record the 2014 decision or clarification of the secretary regarding the Carcieri decision [00:22:22] Speaker 03: and place that before the district court. [00:22:24] Speaker 03: So I would ask the court to take a close look at that, and that's fully briefed by Mr. Patchak. [00:22:30] Speaker 03: Thank you very much. [00:22:31] Speaker 03: Thank you. [00:22:32] Speaker 03: We'll take the case under advisement.