Both sides in the case Washington v. Trump regarding the temporary restraining order blocking President Trump’s immigration ban filed briefs on Thursday regarding whether the case should be reviewed by the full 9th Circuit Court of Appeals.
The state of Washington filed a brief with the federal appeals court arguing against the “en banc” review that would rehear a three-judge panel’s decision. The term “en banc” refers to a case being heard before the full court. In other federal appeals courts, en banc includes all active judges, but the 9th Circuit convenes a “limited en banc court” that features the chief judge and 10 other active judges chosen at random.
“En banc reconsideration of the panel’s order is unwarranted because the threshold criteria for such extraordinary review are not satisfied under the circuit’s rules for en banc reconsideration of a motions panel order or the broader principles governing en banc review,” the states wrote. “Under the Circuit rules, en banc reconsideration of an order issued by a motions panel (as opposed to a merits panel) is ‘not favored,’ and requires a showing that the panel has ‘overlooked or misunderstood a point of law or fact’ or that there has been ‘a change in legal or factual circumstances after the order which would entitle the movant to relief.’ This case does not meet those criteria.”
Trump’s Justice Department countered that a full review was necessary because the three-judge panel’s decision relied on a misconception of the scope of Trump’s action.
“The principal basis of the panel’s decision was its conclusion that the order applies to [legal permanent residents],” the federal government argued. ” The order is ambiguous in this respect and, at the time it was issued, was reasonably interpreted to encompass LPRs. However, it is also reasonably interpreted to exclude LPRs, and the White House counsel’s ‘authoritative guidance’ confirms that narrower interpretation. The panel seriously erred in construing the order to raise constitutional difficulties when the government instead advanced an interpretation that would avoid those very difficulties. The panel appeared to misconstrue the order in other respects as well.”
Now that briefs from both sides have been filed, a vote will be scheduled on the en banc call. If a majority of the 9th Circuit’s active 29 judges favor the rehearing, it will proceed. The larger size of the 9th Circuit, as the Washington Examiner previously noted, makes its en banc hearing and rehearing processes different from other circuit courts.
UPDATE: Since Trump said he intends to announce a new executive order relating to the immigration ban soon, the federal appeals court decided to stay additional proceedings. The court heeded the Justice Department’s urging that the court halt its consideration of the case until after the new order is issued.
