Procedural Issues May Determine Immediate Fate of President’s Executive Order Before Diverse Panel of Ninth Circuit Judges

The near-term fate of President Trump’s Executive Order barring entry from seven Muslim-majority countries was before the Ninth Circuit Court of Appeals on February 7, 2017.  The Court must decide whether to stay a Temporary Restraining Order, or “TRO,” entered by U.S. District Judge James L. Robart, stopping enforcement of the Executive Order in response to a challenge by the States of Washington and Minnesota.  The three judges on the panel exemplify judicial diversity: Hon. William C. Canby, Jr., is an 85-year old Carter appointee based out of Phoenix; Hon. Richard Clifton is a 66-year old George W. Bush appointee from Hawaii; and Hon. Michelle Friedland is a 44-year old Obama appointee from San Francisco.

Although many controversial and politically charged issues are ultimately at play, the oral argument stands as a reminder to all that sometimes procedural issues are outcome determinative.  Washington’s Solicitor General Noah G. Purcell, representing the two plaintiff states, explained that a TRO is not normally appealable to the Circuit Court unless it is functionally a full preliminary injunction.  Thus, he urged the Court to consider the Government’s application as one seeking a writ of mandamus, under which the Court may only overturn a district court decision in the most extraordinary of circumstances.   And although the states had a heavy burden to obtain the TRO in the first place, the panel was quick to point out that it was the Government that was seeking a stay of the District Court’s TRO and the Government, therefore, bore the burden of persuading the Court that a stay was necessary.

On the merits, both sides faced tough questions. All three judges questioned Department of Justice Attorney, August E. Flentje, on whether there was any evidence supporting the Government’s assertion that there would be “irreparable harm” if the Executive Order were not allowed to go into effect. The Government, the judges observed, was hard pressed to point to a single example in the recent past of an entrant from one of the seven banned countries that had been arrested for terrorism related activities.  For his part, Mr. Purcell was peppered with questions about whether the Executive Order is different from other immigration orders, like President Reagan's ban on entry by most Cuban immigrants.

The Ninth Circuit panel took the case under advisement, noting its understanding of the time sensitive nature of the issue and the need for a prompt decision.

For more information, please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.