New York Times:
By Adam Liptak
February 13, 2017
WASHINGTON — The Justice Department said in a brief filed on Monday that it would continue to defend President Trump’s targeted travel ban in the federal appeals court in San Francisco, which on Thursday refused to reinstate it.
The department did not say whether it would try to appeal that ruling to the Supreme Court. But its silence on the matter suggested that the Trump administration will not pursue an immediate appeal.
The administration had asked a three-judge appeals court panel for prompt action to avert a national security emergency — and was rebuffed last week — after a trial judge had blocked the ban, allowing refugees and visitors from seven Muslim-majority nations into the United States. The Justice Department has moved at a more deliberate pace since its loss last Thursday, an indication that it will not file an emergency application in the Supreme Court.
The administration may have decided that the chances of success at the Supreme Court are poor. For the last year, the court has had just eight members, and a 4-to-4 tie would leave the appeals court ruling in place. It would take five votes to overturn the ruling, and it appears unlikely that any of the court’s four more liberal justices would support the administration’s position.
The Justice Department asked the trial judge, Judge James L. Robart, of the Federal District Court in Seattle, to “postpone any further proceedings” in his court while the appeals court, the United States Court of Appeals for the Ninth Circuit, considers whether to rehear the case.
Lawyers for the states of Washington and Minnesota, which are challenging the ban, urged Judge Robart to order the parties to start exchanging information in preparation for trial.
“Given the gravity of the states’ constitutional allegations, defendants’ stated national security concerns, and the public interests at stake, the states respectfully submit that discovery should proceed without delay,” Noah G. Purcell, Washington’s solicitor general, wrote.
At a hearing on Monday afternoon in Seattle, Michelle Bennett, a Justice Department lawyer, urged Judge Robart to halt proceedings in the trial court.
Judge Robart said he was surprised to hear her make that argument, in light of a statement from Mr. Trump after the Ninth Circuit’s ruling. “‘See you in court,’” Judge Robart said, quoting a Twitter post by Mr. Trump, which drew a laugh in the courtroom.
“I’m not prepared to slow this down,” Judge Robart said. “There is a very sensitive time issue.”
Unless the appeals court or the Supreme Court acts, Judge Robart’s Feb. 3 temporary restraining order, which blocked the key provisions of targeted travel ban, will remain in place. The ban, one of the first executive orders Mr. Trump issued after taking office, suspended worldwide refugee entry into the United States. It also suspended travel from seven Muslim-majority nations — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — for 90 days.
On Thursday, a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, refused to stay Judge Robart’s order.
On Friday, an unidentified appeals court judge called for a vote on whether the three-judge panel’s ruling should be reheard by a larger panel of the Ninth Circuit. Those briefs are due Thursday.
If a majority of the court’s active judges voted to rehear the case, it would typically be considered by an 11-member panel made up of the circuit’s chief judge and 10 judges chosen at random.
Rehearing motions filed by parties and requests for votes on rehearings requested by judges are not particularly unusual. The Ninth Circuit rehears decisions issued by three-judge panels 15 to 25 times a year, the court said.
The Ninth Circuit has 25 active judges, 18 of whom were appointed by Democratic presidents.
In a separate order, the three-judge panel last Thursday set a schedule for submitting briefs in the underlying appeal. (The question decided on Thursday was whether to stay the trial court order. The question at issue in the new briefs is whether that ruling was correct.) The last of those briefs is due March 29.
Judge Robart, meanwhile, was considering on Monday what should happen in his court in the meantime.
Last Friday, he asked the states and the Justice Department to file briefs on whether there was a need for further proceedings in his court. Ordinarily, after a temporary restraining order is issued, the parties would file additional briefs and perhaps submit evidence on whether to make the order more permanent by entering a preliminary injunction.
Before the Ninth Circuit ruled, Judge Robart ordered the parties to file those briefs starting on Feb. 9 and ending on Feb. 17.
But the Ninth Circuit’s ruling complicated matters by treating the order as a preliminary injunction, suggesting that there was nothing more for Judge Robart to do for now.
Mr. Purcell said that was the right interpretation of the appeals court’s ruling.
“In short, because the Ninth Circuit has construed the Feb. 3 order to grant all the preliminary relief the states would have sought through a motion for a preliminary injunction, no additional briefing or evidence is required in the district court on the propriety of preliminary relief,” Mr. Purcell wrote.
The Justice Department, in a brief signed by Ms. Bennett, did not take a firm position on that question, saying only that “further proceedings in the Ninth Circuit will likely inform whether additional proceedings on a preliminary injunction motion are necessary in the district court.”
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