US Tells 9th Circuit Transfer Order Unreviewable in Blackfeet Nation Members' Tariff Suit
The U.S. filed a supplemental brief on Dec. 3 urging the U.S. Court of Appeals for the 9th Circuit to affirm a Montana court's decision to transfer a group of tribal members' tariff lawsuit to the Court of International Trade. The government said the plaintiffs will be able to fully adjudicate their claims at the trade court and that the 9th Circuit can't review the Montana court's transfer order, since it's not a final order nor an "immediately appealable collateral order" (Susan Webber v. U.S. Department of Homeland Security, 9th Cir. # 25-2717).
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The litigants, four Blackfeet Nation members, filed suit to claim that the International Emergency Economic Powers Act and Section 232 tariffs violated the Constitution's Indian Commerce Clause and the Jay Treaty (see 2504100039). The Montana court sent the case to CIT, finding that the two cases establishing CIT's exclusive jurisdiction to hear cases arising out of the Trading With the Enemy Act, IEEPA's predecessor, confirm CIT's exclusive jurisdiction to hear cases involving IEEPA, given that IEEPA has the "same operative language as that contained in the TWEA" (see 2504250063).
The Blackfeet Nation members appealed to the 9th Circuit, which the U.S. contested on the basis that the appellate court can only review final orders (see 2505020054). The court heard oral argument in September largely on whether the transfer order is appealable. Filing deadlines in the case were stayed due to the federal government shutdown (see 2510020039).
Resuming litigation now that the government has reopened, the U.S. made additional arguments for why the transfer order is not final and thus not reviewable. A transfer order doesn't resolve all the claims in the case, and, in fact, it does just "the opposite," since it lets parties "continue litigating a case to final judgment in the transferee court," the brief said. And to the extent the plaintiffs claim the transfer order delays litigation, the U.S. said this is a delay of the tribal members' own making, since they decided to appeal the transfer order and further delay proceedings.
The U.S. spent much of the brief arguing that the transfer order also isn't a "collateral order," which is an order that conclusively determines a disputed question, resolves an important issue that is completely separate from the case's merits and is effectively unreviewable on appeal. The government said every court to consider the issue "has correctly held that" transfer orders aren't collateral orders, the brief said.
The courts that have considered the issue, which include the Courts of Appeal for the 1st, 2nd, 3rd, 4th, 5th, 6th, 10th, 11th, D.C. and Federal circuits, haven't drawn a distinction between "transfers based on the transferor court’s lack of personal jurisdiction over the defendant" and "transfers based on a lack of subject-matter jurisdiction," as plaintiffs urge, the brief said. Even if such a distinction existed, this court has previously said "an interlocutory ruling on personal jurisdiction is, if anything, 'a much more attractive candidate for interlocutory appeal' than a ruling on subject-matter jurisdiction."
The government added that transfer orders fail to satisfy the "three predicates for the collateral order doctrine -- much less any of them." First, the orders don't "conclusively determine a disputed question because the transferee court remains obligated to assure itself of its subject matter jurisdiction," the brief said.
Second, determining whether a court has jurisdiction to hear the claims isn't "completely separate from the merits" in the relevant sense. While there are no hard rules here, courts examining this question distinguish between orders that are a "part of determining 'the cause itself'" and those that "involve preliminary procedural determinations about how the trial on the merits will proceed," the brief said. A ruling on subject-matter jurisdiction falls into this first category, since lack of jurisdiction is a "basis for entering final judgment in the case," so it can "hardly be separate from the court's determination of 'the cause itself.'"
Lastly, the Blackfeet Nation members can "readily press their jurisdictional arguments on appeal in the Federal Circuit," the brief said.
The only exception the plaintiffs have offered is a "pair of decisions addressing a rare circumstance, that is not implicated here and that Congress has since ensured will not recur, where effectual appellate review would always be impossible absent an interlocutory appeal." The cases addressed the situation where a district court sent a claim worth less than $10,000 to the Court of Federal Claims, which raises a unique issue, given that the reviewing court wouldn't have the basis to review jurisdiction, since both the Federal Circuit and Court of Federal Claims have concurrent jurisdiction.
"Nothing comparable could occur here: The CIT’s jurisdiction is exclusive, and the Federal Circuit can always review its rulings on subject-matter jurisdiction after final judgment," the brief said.