Today the Supreme Court heard oral argument in Patchak v. Zinke. Patchak is a case about everyone's favorite doctrine, the Klein doctrine, which says—this is disputed by academics, but not by the parties, at least not comprehensibly so—that while Congress may make new law applicable to pending cases, and even limit that new law's applicability to a pending case, it may not direct results of cases under old law without impinging on the federal courts' powers under Article III. That's how the Court understood the doctrine a year ago in Bank Markazi v. Peterson, at any rate.
In Patchak, Patchak sued the Department of Interior under the APA to challenge its decision to take title to a tract in Michigan known as the Bradley Property on behalf of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians. The government claimed it hadn't waived its sovereign immunity from this sort of suit; the Supreme Court held in Patchak I that it had.
Congress responded by passing the Gun Lake Act, section 2(b) of which provides that "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) [the Bradley Property] shall not be filed or maintained in a Federal court and shall be promptly dismissed." The D.C. Circuit held that the Gun Lake Act constitutionally stripped federal jurisdiction over Patchak's suit. Patchak petitioned for and somehow obtained certiorari on whether, as he put it, "a statute directing the federal courts to 'promptly dismiss' a pending lawsuit . . . without amending underlying substantive or procedural laws [] violate[s] the Constitution's separation of powers principles."
Patchak's briefs were, to charitably understate matters, extremely unhelpful on what about this statute violated Klein. The relevant sections of his briefs consist of string-cites of every high-sounding generality in a Supreme Court opinion about the separation of powers in the last 200 years, interspersed with occasional empty assertions about the statute actually on review. (E.g., "the principles recognized and secured in the Court's prior decisions instruct that the Gun Lake Act invades and weakens the judicial power, and thereby violates the separation of powers.")
An amicus brief in support of Patchak signed by Steve Vladeck and joined by Prawfsblawgger Howard Wasserman and such eminent professors as Dean Chemerinsky, David Strauss, and Ernest Young provided much more concrete guidance. This brief, rather candidly and self-defeatingly, allowed that the "first clause" of section 2(b), the part that said a suit relating to the Bradley Property "shall not be filed or maintained in a Federal court," was constitutional. The problem, its signatories argued, was that section 2(b) didn't "only remove[] federal jurisdiction," which would have been fine; when it went on to say that cases relating to the Bradley Property "shall be promptly dismissed, it "additionally command[ed] the federal courts to dismiss all cases" as to which jurisdiction had been removed. That isn't okay, they argued, because it deprived federal courts of jurisdiction to decide that jurisdiction had been removed under the "shall not be filed or maintained" clause, and simply dictated a brute result.
With respect to Vladeck et al., this is rather like arguing that section 1332 would violate Article III and the separation of powers if it said that federal courts must dismiss suits brought under 1332 that don't involve the requisite amount in controversy, as opposed to "only" saying, as it now does, that jurisdiction only extends to diversity suits that do involve the requisite amount in controversy. Of course federal courts must dismiss suits over which they have no jurisdiction; what else are they supposed to do with them? Such a clause in 1332 would be as inoffensive as it would be unnecessary. But Patchak's briefing being what it was, that was the thread by which his case was hanging going into oral argument.
At oral argument, the majority of the Court snipped the thread. Clearly convinced that the addition of "shall be promptly dismissed" to a jurisdictional bar couldn't sink that bar (whether because it could be severed, because it could be deemed surplusage, or because it could simply be deemed the necessary consequence of a jurisdictional bar), a number of Justices repeatedly asked Patchak's counsel to say whether 2(b) would be unconstitutional without the (putatively) offending phrase, and if so why. Patchak's counsel adamantly insisted that 2(b) would be unconstitutional if it merely stripped jurisdiction over suits relating to the Bradley Property without commanding their dismissal, but was completely unable to articulate a reason why. Recounting in any detail the various attempts he made to give a reason why would be unkind, but they generally circled around the mantra that even if Congress had made new jurisdictional law and applied it to Patchak's pending case, the Court still had to ask whether Congress was exercising judicial power in doing so. How Congress could possibly be exercising judicial power in making a new jurisdictional bar, and how the Court was to decide if Congress had done so in enacting the Gun Lake Act, Patchak's counsel never explained.
So the Gun Lake Act will survive, and deservedly so; there was never anything really the matter with it. There is, however, the niggling detail of just what to say about "and shall be promptly dismissed." I want to suggest a couple ideas, the first of which should appeal to the Chief Justice, who seems to be the only member of the Court that's truly worried about the constitutionality of the statute.
The Vladeck amicus brief claims that "and shall be promptly dismissed" deprives federal courts of jurisdiction to determine whether "shall not be filed or maintained" strips their jurisdiction over Bradley Property-related actions; they must dismiss such actions and enter judgment for the government whether they think they have jurisdiction or not. This strikes me as a rather uncharitable reading of section 2(b), and certainly one that flouts the doctrine of constitutional avoidance.
Having provided that Bradley Property-related suits "shall not be . . . maintained" in federal court, Congress had already mandated their dismissal before it said so; how could a court heed the command that such suits shall not be maintained in federal court without dismissing them? The addition of "and shall be promptly dismissed," rather than mandating dismissal prior to or independently from a jurisdictional determination, can be read to merely confirm the jurisdictional nature of "shall not be filed or maintained," which otherwise might be read as a claim-processing rule under the Court's clear-statement rule for deciding when jurisdictional statutes are really jurisdictional. One might say that this reads 2(b)'s second clause to contain a silent "therefore"—"shall not be filed or maintained in federal court and shall therefore be promptly dismissed"—that clarifies Bradley Property-related suits are to be dismissed because they "shall not be maintained in federal court," i.e., because there is no federal jurisdiction over them. I do not think it does much violence to 2(b) to suggest that this "therefore" is nascent in the statute.
Such a parsimonious reading of mandatory language should be familiar to Chief Justice Roberts, who, having determined in NFIB that the ACA would be unconstitutional if it contained an insurance mandate, invoked avoidance to read the ACA's seeming command "that individuals 'shall' maintain health insurance" as "a condition . . . that triggers a tax," not as "a legal command to buy insurance." I tend to find that saving construction more plausible than most; since the only legal consequence of "mandating" people to buy insurance under the ACA was requiring them to make a relatively small payment to the IRS if they didn't, it was quite possible to read the mandate as precatory. I also have never understood what great difference the saving construction made; couldn't the mandate have been severed from the tax/penalty and practically produced just the same result?
But in any event, I think my reading of "and shall promptly be dismissed" is even more plausible than Roberts' reading of the mandate; whereas Roberts read the ACA's "shall" to mandate nothing at all, I would read "and shall be promptly dismissed" to mandate dismissal, on the jurisdictional grounds provided earlier in the sentence. This seems to me not only a permissible reading of section 2(b), but its most natural reading. After all, if 1332 said that federal courts had jurisdiction of diversity suits with an amount-in-controversy in excess of $75,000, and shall dismiss suits with an amount-in-controversy of $75,000 or less, would we read the "shall dismiss" clause to deprive district courts of jurisdiction to determine their jurisdiction in cases with an amount-in-controversy of $75,000 or less, or simply as the inverse of the jurisdictional grant? I should think the latter, and if 1332's constitutionality turned on it, we would be compelled to read it that way. So too with the Gun Lake Act.
This is not only correct as a matter of avoidance and, I would suggest, common sense; it's also correct as a matter of anti-surplusage. For the Vladeck reading of section 2(b) renders "shall not be filed or maintained in federal court" a nullity that federal courts cannot apply before applying the "and shall be promptly dismissed" clause; the claim quite literally is that the latter clause "does not allow" federal courts to decide if Bradley Property-related suits are jurisdictionally barred by the former clause. Were that so, why did Congress bother to write "shall not be filed or maintained in federal court"? If the courts are not even allowed to apply that language, for whom was it written? My reading, on the other hand, not only gives effect to that language, but gives effect to "shall be promptly dismissed" as well; for me, that phrase confirms the jurisdictionality of "shall not be filed or maintained in federal court," which could otherwise potentially be read as a non-jurisdictional claim-processing rule.
Given all that, I would find a holding that section 2(b) contains a brute command of results overlaid on top of a jurisdictional bar that federal courts are pretermitted from applying, as opposed to a garden-variety jurisdictional bar and some language confirming that bar, all but indefensible. It isn't what 2(b) means and it certainly isn't what 2(b) unambiguously means, so if unconstitutional or even possibly so, that interpretation of 2(b) must be avoided.
However, if 2(b) does command dismissal of Bradley Property-related suits independent of their extrajurisdictionality under 2(b) itself, that command could be severed as unconstitutional. It is critical to note, however, that that would be in no way a win for Patchak. Patchak's suit would still be barred by the perfectly constitutional jurisdictional provision that his suit may not be maintained in federal court, and the judgment below affirming the dismissal of that suit for lack of subject-matter jurisdiction would be affirmed. To be sure, the Court sometimes "affirms" a judgment it disagrees with, for remedial reasons, because it agrees with the constitutional holding of an opinion below, so conversely it might "reverse" the D.C. Circuit's judgment because it disagrees with the D.C. Circuit's opinion insofar as it found no constitutional violation. As Will Baude has argued, however, the Court should really cut this sort of thing out; a constitutional holding isn't itself a judgment or a part of a judgment, but only a reason for it.
Assuming the Court affirmed, it isn't obvious to me how the Court could write an opinion in which the invalidation and severing of the "shall be promptly dismissed" clause wouldn't be one huge dictum, given that the Court's judgment would ultimately rest on the ground that Congress constitutionally forbade Patchak's suit from being "maintained" in federal court, whether or not it acted constitutionally in proceeding to further mandate its dismissal. And even if the Court's severance of the "shall be promptly dismissed" clause were deemed a holding, its severing that clause would have no effect whatsoever on how any district court adjudicated suits relating to the Bradley Property; district courts would continue to dismiss those suits for lack of jurisdiction. The emptiness of such an undertaking underscores the wisdom of the Chief Justice's course in NFIB; why go to the trouble of invalidating a phrase in a statute that has no real legal consequence?
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