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Fourth and Ninth Circuit Courts to Review Latest Executive Order Regarding Travel Suspension

Marc D. Katz, Isabel Crosby and Jayde Ashford Brown
April 17, 2017

As detailed in our previous alert on this issue, on March 16, 2017, Federal Judge Theodore D. Chuang (D. Maryland) issued a nationwide preliminary injunction that prevented the United States Government from enforcing Section 2 of the “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States” issued on March 6, 2017, (the “new E.O.”). On March 17, 2017, the United States Justice Department filed a notice to appeal the ruling to the Fourth Circuit.  

The Fourth Circuit will Conduct En Banc Review of the New E.O.  

On April 10, 2017, the United States Court of Appeals for the Fourth Circuit ordered an initial hearing en banc (before the full 15-judge court) to review the legality of the new E.O.’s 90-day suspension of travel and entry into the United States of foreign nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen. 

The court’s order of en banc review is a strong indication that the pending challenges to the new E.O. present questions of exceptional importance. Oral arguments will occur on May 8, 2017, in Richmond, Virginia.

The Ninth Circuit will Review the District Court of Hawaii Rulings Against the New E.O.

The new E.O. is also under review before the United States Court of Appeals for the Ninth Circuit. As detailed in our previous alert on this issue, on March 30, 2017, the United States Government filed a Notice of Appeal to the Ninth Circuit in which the Government appealed the District Court of Hawaii’s March 29, 2017, order indefinitely blocking the travel suspensions under Sections 2 and 6 of the new E.O. On April 3, 2017, the Ninth Circuit agreed to hear the United States Government’s appeal on an expedited basis. 

On April 11, 2017, attorneys for Plaintiffs-Appellees filed a “Petition for Initial Hearing En Banc,” in which the Plaintiffs-Appellees urged the Ninth Circuit to consider following the Fourth Circuit in granting en banc review. As of this writing, the Ninth Circuit has not ruled on the petition.

This matter continues to evolve. The Andrews Kurth Kenyon Labor & Employment team will continue to monitor judicial review of the new E.O. and issue additional updates as warranted.


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