On Monday, February 27, 2017, a three-judge panel of the US Court of Appeals for the Ninth Circuit (the “Court”) denied the Trump administration’s request to hold the “Travel Ban” appeal proceedings in abeyance pending further developments. Citing its brief of February 16, 2017, in which the Department of Justice (“DOJ”) had advised the Court that “the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order,” DOJ moved the Court to suspend the briefing schedule and “hold all proceedings on appeal in abeyance pending further order of the Court.” The states of Washington and Minnesota opposed the motion to delay the proceedings, citing repeated statements by the president and the White House press secretary “that they intend to pursue this appeal and defend the Executive Order — not repeal it.” Accordingly, the states argued, “there is no justification for the extraordinary request that proceedings be ‘held in abeyance.’”
In a simple one-line order and without further elaboration, the three-judge panel denied the motion of the administration to hold the proceedings in abeyance. On its own motion, the Court did extend the briefing schedule by one week, with the opening brief due March 10, 2017, and the response due March 31, 2017. An optional reply brief would be due April 5, 2017.
Executive Order 13769, signed by President Trump on January 27, 2017, restricted travel into the United States by nationals of seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) and temporarily suspended the admission of refugees. A February 9, 2017, order of the three-judge panel denying an emergency stay requested by the administration left intact the temporary restraining order (“TRO”) of the US District Court for the Western District of Washington enjoining implementation of the president’s order. 1
We anticipate that when the new executive order is issued many of the cases pending in the courts will be amended to seek invalidation of the new order.