9th Circuit Orders More Briefing in Tariff Suit on Whether Transfer Orders Are Reviewable
The U.S. Court of Appeals for the 9th Circuit on Sept. 24 ordered supplemental briefing in a case concerning the legality of tariffs imposed on Native Americans on the question of whether the court has subject matter jurisdiction to review an order transferring cases to another district court (Susan Webber v. U.S. Department of Homeland Security, 9th Cir. # 25-2717).
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The order from Judges William Fletcher, Ronald Gould and Ana de Alba came after the judges questioned litigants in the tariff lawsuit on the court's ability to review transfer orders (see 2509170074). In particular, Judge Fletcher appeared skeptical of the government's claim the court can't review the transfer order, since it's a non-final unappealable order.
The plaintiffs in the case are four members of Blackfeet Nation who filed suit to claim that tariffs imposed under the International Emergency Economic Powers Act and Section 232 violated the Constitution's Indian Commerce Clause and the Jay Treaty, among other claims (see 2504100039). The Montana district court in which the case was filed sent the case to the Court of International Trade after finding the trade court had exclusive jurisdiction to resolve the matter (see 2504250063).
During oral argument on appeal, the 9th Circuit questioned whether the transfer order is reviewable by the appeals court. Monica Tranel, counsel for the Blackfeet Nation members, said it is, citing 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 this claim.
Other issues with the transfer order include the applicability of 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.