Commentary on Patchak v. Salazar et al., No. 09-5324.

On January 21, 2011, the United States Court of Appeals for the District of Columbia Circuit disagreed with three other federal circuits and held that sovereign immunity is waived for a challenge to a Department of the Interior decision to take land into trust for an Indian tribe, so long as the plaintiff itself is not claiming title to the land. The decision is Patchak v. Salazar et al., No. 09-5324. Because Interior can usually be sued in the District of Columbia, Patchak not only creates a circuit split but also opens a ready forum for future challenges to trust acquisitions. This opening of the courthouse doors for suits against the United States makes a petition for rehearing en banc and, if unsuccessful, a petition for certiorari by the Solicitor General highly likely.

Patchak, an individual plaintiff, filed suit claiming that Interior’s decision to take land into trust for the Match-e-be-nash-she-wish Band of Pottawatomie (Gun Lake Tribe) in Michigan was ultra vires and contrary to statute. After Patchak unsuccessfully sought to enjoin the acquisition pending resolution of his complaint, Interior took the land into trust, and the district court dismissed the suit for lack of standing. On appeal, the D.C. Circuit reversed on the standing issue and addressed the United States’ claim of sovereign immunity under the Quiet Title Act. Until now, all three circuits that have addressed the issue (the Ninth, Tenth, and Eleventh) have held that the Quiet Title Act, 28 U.S.C. § 2409a, bars suits like Patchak’s. See Fla. Dep’t of Bus. Regulation v. Dep’t of Interior, 768 F.2d 1248, 1253-55 (11th Cir. 1985); Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961-63 (10th Cir. 2004); Metro. Water Dist. of S. Cal. v. United States, 830 F.2d 139, 143-44 (9th Cir. 1987). The Quiet Title Act allows suits “under this section to adjudicate a disputed title to real property in which the United States claims an interest,” and specifically excludes “trust or restricted Indian lands.” Courts have read this language as barring all after-the-fact challenges to the United States’ trust acquisitions for Indian tribes—notwithstanding the general waiver of sovereign immunity in the Administrative Procedure Act, 5 U.S.C. § 702, for actions seeking non-monetary relief against official agency action.

Rejecting this analysis, the D.C. Circuit examined the language and history of the Quiet Title Act and held that Patchak’s claim challenging the legality of the trust acquisition was not a “quiet title” action at all, because Patchak did not claim title to the lands at issue. Therefore, the Court reasoned, his suit was not covered by the Quiet Title Act or its “Indian lands” exception. In so holding, the D.C. Circuit identified and disagreed with two rationales relied on by other circuits. One is that the legislative history of the Indian lands exception to the Quiet Title Act cites the federal government’s obligations to Indian tribes. The D.C. Circuit reasoned that this spoke only to the need to exclude certain quiet title actions from the Act—not to whether a particular suit is a quiet title action. The other rationale is that Congress would have had no reason to allow suits by persons not claiming a title interest if it barred suits by those who do. The D.C. Circuit held that because the APA waiver in § 702 was enacted (in 1976) after the Quiet Title Act (in 1972), suits by persons not claiming title would not have been contemplated at all when the Quiet Title Act was passed. Thus, it reasoned, the Quiet Title Act does not speak to this distinction, and § 702 controls.

The breach in precedent protecting its immunity that Patchak opened will likely be of acute concern to the Justice Department. That, combined with the clear conflict in the circuits, is likely to prompt the Solicitor General to seek rehearing en banc in the D.C. Circuit (which is rarely granted) and, if that does not succeed, to take its case to the Supreme Court. The fact that the case is interlocutory is unlikely to pose a barrier. The Supreme Court generally allows interlocutory review of sovereign immunity claims, Puerto Rico Aqueduct & Sewer Auth., v. Metcalfe & Eddy, Inc., 506 U.S. 139 (1993), and it has granted certiorari to review interlocutory Quiet Title Act claims in the past, see United States v. Mottaz, 476 U.S. 834 (1986).

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