9th Cir. Judges Hold Argument on Order Transferring IEEPA Tariff Suit to CIT
Judges at the U.S. Court of Appeals for the 9th Circuit held argument on the U.S. District Court for the District of Montana's decision to transfer a case against the legality of International Emergency Economic Powers Act tariffs and Section 232 tariffs as applied to tribal members to the Court of International Trade. One of the judges, Judge William Fletcher, appeared skeptical of the government's claim that the court can't review the district court's transfer 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 IEEPA and Section 232 tariffs violated the Constitution's Indian Commerce Clause and the Jay Treaty (see 2504100039). The Montana court sent the case to the trade court, 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 Montana court also noted that the Blackfeet Nation members' claims regarding the applicability of tariffs to Native Americans similarly belongs at CIT, since similar claims have historically been considered by the trade court.
The Blackfeet Nation members appealed to the 9th Circuit, which the U.S. challenged on the basis that the appellate court can't review the district court's transfer order (see 2505020054). The government said the appellate court can review only "final orders," adding that an order transferring a case under 28 U.S.C. Section 1631 for litigation to continue in another court is necessarily not final.
During argument, Fletcher asked Monica Tranel, counsel for the Blackfeet Nation members, whether the order is an appealable order. In response, Tranel cited a line of cases indicating that when a constitutional right is implicated by the transfer order, "judicial review is presumed." Fletcher said he's "inclined to agree" with that argument.
Tranel then argued that the law is settled that transfer orders are only appealable in the circuit of the transferor court, and not the transferee court. The attorney invoked the Supreme Court's decision in Christensen v. Colt in which two circuit courts kept transferring a case back and forth, and the high court said the first court to make the decision's precedent applies and is shown deference.
In response, DOJ attorney Sarah Welch said the trade court and the U.S. Court of Appeals for the Federal Circuit have an obligation to determine their own jurisdiction. And while Tranel cited precedent showing that the transferee court must review the transfer decision deferentially, Welch said the Supreme Court made clear in Firestone Tire & Rubber Co. v. Bruch that "the fact that something is reviewed deferentially" isn't enough to "put a case within the class of collateral orders that are immediately appealable."
Tranel also repeatedly invoked the U.S. Court of Appeals for the 4th Circuit's decision in Gower v. Lehman, which relied on the "collateral order doctrine" -- which lets an appeals court review a non-final order if the order resolves a disputed question, the question is important and separate from the merits, and the order would be "effectively unreviewable" if the appeal had to wait until final judgment -- to review a transfer order. In response, Welch argued that the 4th Circuit's holding in In Re Carefirst of Maryland limited Gower to its facts.
Fletcher disagreed with this argument, declaring that "I'm not sure Carefirst gets us where you want to get," adding that he's "read all the cases" the government's cited and "none of them are on point."
Welch also urged the 9th Circuit to suspend the case pending the Supreme Court's resolution of the two lead cases on the legality of IEEPA tariffs, noting that the appellate court has already stayed another IEEPA tariff case brought by the State of California pending resolution of the Supreme Court's cases. Fletcher said they stayed that one and not the present dispute due to the Blackfeet Nation members' specific claims regarding the applicability of tariffs to Native Americans.
Fletcher added that he anticipates the court will "wait to hear from the Supreme Court" on the lead cases.
In addition to arguing on the appealability of the transfer order, Tranel also said CIT doesn't have exclusive jurisdiction, since the case involves claims under the Indian Commerce Clause of the Constitution. She argued that the trade court only has jurisdiction on cases arising out of laws that provide for tariffs, and that IEEPA, which lets the president regulate property from a foreign country, isn't included in that statute when Native American land comes into play. Tranel mentioned that the tariffs should be found not to apply to cross-border ports of authority that exclusively reside on Native American land.
In response, Welch invoked precedent showing that disputes regarding tariffs and the Indian Commerce Clause and the Jay Treaty have been exclusively considered by the trade court or its predecessor.