The 4th Circuit Court of Appeals is mulling over whether the full court — as opposed to only three judges — should hear a challenge to a federal district court’s decision to halt a core provision of President Donald Trump’s revised travel ban nearly two weeks ago.
US District Court Judge Theodore Chuang imposed a nationwide halt to the portion of the President’s executive order that tried to bar foreign nationals from six majority-Muslim nations from entering the country for 90 days. The Justice Department formally appealed Chuang’s decision on Friday, calling it “extraordinary.”
Normally, such an appeal from a trial court’s decision would be heard by a randomly assigned panel of three judges on the 4th Circuit Court of Appeals, which hears cases from Maryland, Virginia, West Virginia, North Carolina and South Carolina.
Yet, on Monday the appeals court issued an order asking both sides whether the case should be heard by the full court — otherwise known as “en banc” review — in the first instance and skip the three-judge panel.
The move may potentially signal to the parties the weightiness of the issues involved, as rehearings en banc are generally “not favored” in the federal system and “ordinarily will not be ordered unless … necessary to secure or maintain uniformity of the court’s decisions; or the proceeding involves a question of exceptional importance.”
“It’s unusual for a court of appeals to go en banc at such an early stage, but not unheard of — and may simply signal an entirely understandable view that, given the significance of the questions presented, the matter was likely to go to the full court even if it was first heard by a three-judge panel,” explained Stephen Vladeck, a CNN contributor and professor at the University of Texas School of Law.
“Given that, and given that the travel ban remains on hold pending the appeal, I think it’s a rather frank admission by the court of appeals that, regardless of how it comes out, this case is a pretty big deal — and ought to be treated as such,” he added.
The parties have until Thursday to provide their positions on the issue.
An attorney who represents the refugee groups and other individual plaintiffs who filed the lawsuit declined to comment, and the Justice Department did not immediately respond.
Last week, the 4th Circuit set an oral argument date in the case for May 8 in Richmond, Virginia.
Meanwhile, litigation over the travel ban continues in federal court in Hawaii. Like Chuang, US District Court Judge Derrick Watson in Honolulu issued a nationwide temporary restraining order, which blocked the core provisions of the travel ban, and is now considering whether to convert that ruling into a longer-term order. The Justice Department has not made any moves to appeal Watson’s ruling.
