Week in Review: Arguments and Opinion from the Week of November 6, 2017

The Court heard oral arguments in only two cases this week, previously discussed here, and it issued its first opinion of the Term. In Hamer v. Neighborhood Services of Chicago, argued on October 10, the Court unanimously held, in an opinion by Justice Ginsburg, that a rule of appellate procedure governing extensions to file a notice of appeal did not create a jurisdictional deadline. Only time limits provided in statutes create jurisdictional bars. ISCOTUS now described the oral argument in Hamer here. Justice Ginsburg prides herself on writing opinions quickly and recently dubbed herself “Rapid Ruth” in a speech, as described by the Associated Press here.

On Tuesday, the Court heard argument Patchak v. Zinke, which presented the question of whether a statute that directed federal courts to “promptly dismiss” any legal action pertaining to a particular tract of land, without amending the underlying substantive or procedural laws and enacted while a lawsuit was pending, violates the Constitution’s separation of powers doctrine.

David Patchak, a resident who lived near the Bradley Property – the tract of land at issue in the case – sued Secretary of the Interior Ryan Zinke in 2008, claiming Zinke lacked the authority to put the tract into a trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the “Gun Lake Tribe”), who subsequently built a casino on the land. After the Supreme Court decided that Patchak had standing to sue in that suit, President Obama signed into law the Gun Lake Trust Reaffirmation Act in 2014, which provided that any legal action relating to the Bradley Property “shall not be filed or maintained in a Federal court and shall be promptly dismissed.”

Scott Gant, representing Mr. Patchak, argued that Congress exceeded its constitutional authority by passing a statute that directs the dismissal of specific litigation. Gant acknowledged that, pursuant to Ex Parte McCardle, a case from 1869, Congress has the authority to statutorily strip jurisdiction from federal courts, but that the Gun Lake Trust Reaffirmation Act in an unconstitutional abridgment of judicial power because it directs the dismissal of a specific lawsuit, rather than passing a law that limits jurisdiction more generally.

Ann O’Connell, Assistant to the Solicitor General in the Department of Justice, represented Zinke. She argued that, because the Court has previously held that Congress may enact jurisdictional rules and apply them to pending cases, such a rule poses no separation of powers problem.

Pratik Shah represented the Gun Lake Tribe, who joined the suit as an intervening defendant. Shah argued that the Court should not rule the Act unconstitutional just because Patchak’s case was the only case at the time that the Act applied to.  “Instead,” he said, “you should look at the words that Congress enacted which was trying to insulate a category of cases. . . from any federal court exercising jurisdiction. That’s precisely what Congress has done for over 150 years dating back to McCardle and in a line of cases since then.”

On Monday, the Court heard arguments in Merit Management Group v. FTI Consulting, Inc. That  case seeks to resolve a circuit split over the scope of a safe harbor provision of the Bankruptcy Code, prohibiting avoidance of a transfer made by or to a financial institution. Under bankruptcy law, when a person or entity declares bankruptcy, some transfers of funds that they made beforehand can be recovered, or “avoided.” The safe harbor provision here protects transfers made to or from financial institutions.

This post was drafted by Bridget Flynn and edited by Elisabeth Hieber, both ISCOTUS Fellows and Chicago-Kent Class of 2019.

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