Legislative Intrusion on Article III Courts Considered in Patchek
The Supreme Court provided its most up-to-date guidance on the boundaries of Article III jurisdiction relative to acts of Congress in Patchak v. Zinke, No. 16-498. This decision, issued on February 27th, previews the varying perspectives that will drive the ultimate conclusion in Oil States.
Stating the holding of the Patchak plurality (6-3) most succinctly, and perhaps foreshadowing Oil States, Justice Ginsburg explained: “What Congress grants, it may retract.”
The underlying dispute in Patchak involved a parcel of land (“Bradley Property”) taken into trust by the federal government for use by Pottawatomi Indians as a casino. The plaintiff, David Patchak owned a neighboring parcel of land and opposed the casino. After years of litigation over standing, and a previous trip to the SCOTUS, Congress decided it had enough of Mr. Patchak and enacted the Gun Lake Act. This Act prohibited any litigation over the Bradley Property. Mr. Patchak appealed to the SCOTUS arguing that the Act usurped the power of the judiciary to decide his case. The Court rejected this challenge (here)
Patchak focused on the power of Congress to define the laws that Article III courts apply. While different that the Article III dispute in Oil States, nevertheless, the decision provides some tantalizing insights into the Justice’s varying perspectives on the impingement of Article III jurisdiction. These ingrained perspectives will drive the outcome in Oil States.
As noted above, in Patchak, Justice Ginsburg (joined by Sotomayor) deferred to the power of Congress to rewrite the laws, as was similarly done when the America Invents Act (AIA) supplanted inter partes reexamination. Likewise, during the Oil States oral argument Justice Ginsburg repeatedly challenged the petitioner to articulate the constitutional infirmity of the AIA in permitting the USPTO to correct mistakes in patent issuance.
Justice Thomas (joined by Breyer, Alito and Kagan) broke from his conservative colleagues to draft the opinion of the Court, articulating a broad view of congressional authority. During the Oil States argument (like most others) Justice Thomas remained silent. My view at the time was that Breyer, Alito and Kagan viewed the PTAB as constitutional. Perhaps Thomas will join his colleagues on this topic again in Oil States.
The dissent (Gorsuch, Roberts, Kennedy) strictly adhered to the Northern Pipeline line of cases — hardly surprising. My take on the Oil States oral argument was that, at worst, Gorsuch and Kennedy would find the PTAB unconstitutional. (In my eye. Justice Roberts did not seem to be in sync with Gorsuch on Oil States). The decision in Patchak reinforces my original view that Oil States is a 7-2 decision upholding constitutionality.