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Ninth Circuit Partially Reverses District Court’s Denial of Sovereign Immunity December 11, 2007

Posted by rezjudicata in 9th Circuit, Federal Circuits.
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Burlington Northern v. Vaughn, No. 05-16755 (9th Cir. Dec. 7, 2007)

Issue(s): Federal Courts > Appellate Jurisdiction >> Interlocutory Appeals; Tribal Sovereign Immunity > Injunctions >> Ex Parte Young Doctrine; Federal Courts > Jurisdiction >> Pendant Appellate Jurisdiction

Normally, the Court of Appeals has appellate jurisdiction only over final decisions. Before final judgment, however, courts may hear interlocutory appeals over a small class of lower court orders. These are orders that finally determine claims of right that are collateral to the merits of the action. The district court denied the Appellants’ motion to dismiss based on tribal sovereign immunity. Can the Court review the district court’s order under the collateral orders doctrine?

Unless waived or abrogated by Congress, tribal sovereign immunity prevents suits against tribal officials acting within the scope of their authority. An outgrowth of the Ex Parte Young doctrine, however, allows suits for prospective relief against tribal officials allegedly acting in violation of federal law. Burlington Northern alleged that the Hualapai Tribe violated federal law by attempting to tax their railroad. Does tribal sovereign immunity bar their suit?

The Ninth Circuit said yes to the first question. The Court also said yes to the second, but only as to one of the Appellants. The collateral order doctrine permits interlocutory review of orders that: (1) conclusively answer the dispute, (2) resolve an important issue that is separate from the merits, and (3) is effectively unreviewable later. The district court’s denial order satisfied all of these requirements. Immunity was clearly an important issue and the court could not amend its order. Moreover, tribal sovereign immunity is immunity from suit, not liability. The right is lost if the court denies immunity. Thus, the order would be “effectively unreviewable” after a full trial. Therefore, the Ninth Circuit held that it had jurisdiction over the appeal.

Appellants (the Chairman and Treasurer of the Hualapai Tribe) sought immunity from attacks on a tax on Burlington Northern’s railroad. Burlington sought a declaratory judgment that the tax was invalid and an injunction to prevent enforcement. Under the extension of Ex Parte Young, Burlington only had to allege a violation of federal law and seek prospective relief. This it did. Nevertheless, the officials must have some “enforcement connection” to the challenged law. The Treasurer had principal authority for enforcing the tax. Burlington, however, never alleged that the Chairman had any duty or power to enforce the tax. Therefore, the Court held that tribal sovereign immunity protected the President from suit, but not the Treasurer.

The district court also denied the Appellant’s motion to dismiss based on Burlington’s failure to exhaust tribal remedies. The Court, however, declined to determine whether or not exhaustion was a collateral order worthy of interlocutory review. Because exhaustion was a completely separate issue from tribal sovereign immunity, there was no pendant appellate jurisdiction. Therefore, the Ninth Circuit did not review the district court’s dismissal.

It is also important to note that the Court expressed no opinion on the validity of the tax or the jurisdiction of the tribal courts for purposes of exhaustion.

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