Request for full court hearing in Trump immigration case is 'encouraging,' observer says

By Dawn Geske | Feb 17, 2017

SAN FRANCISCO (Legal Newsline) – A sua sponte request for a vote has been made by the chief judge of the Court of Appeals for the 9th Circuit begging the question that something was missed in the initial decision to deny the restraining order in the immigration suit brought forth by the states of Washington and Minnesota against President Donald Trump.

The sua sponte request came after an order was issued by a three-judge panel on Feb. 9 to deny a stay of the temporary restraining order that was put in place forbidding certain provisions of the immigration executive order brought forth by Trump.

Through the sua sponte request it will be determined whether a vote should take place to consider the case en banc. Chief Judge Sidney Runyan Thomas had instructed all parties involved in the suit to file briefs to the judges’ panel by Feb. 16. At press time, they were not yet publicly available.

With the possible decision to go en banc, the case could go before all judges in the circuit.

The sua sponte request by Thomas brought to light that something may have been missed in the original ruling and that further consideration may be necessary.

“I believe the chief judge recognized what was missing in the opinions and/or briefs that were presented before and to avoid future embarrassment of being overturned by another court, he wants to ensure all their bases are covered,” Kirk Allen, co-founder of Edgar County Watchdogs, told Legal Newsline.

Noticibly missing from the suit is any mention of the Spokeo Inc. v. Robins case, which was the latest case of standing brought before the 9th Circuit Court of Appeals. Spokeo centered around the accuracy of consumer reports information as directed under The Fair Credit Reporting Act (FCRA) of 1970.

In Spokeo, the U.S. Supreme Court found that the 9th Circuit Court’s analysis was incomplete as it held that the plaintiff had to allege injury that was both “concrete and particularized.”

The Supreme Court held that the 9th Circuit overlooked “concreteness” and vacated the decision and remanded it so that the 9th Circuit could go back and consider both factors in determining injury.

“This whole immigration case has a standing argument whether or not one side has standing to even bring it forward,” Allen said. “Spokeo was never even mentioned by either side and that’s a glaring omission in a standing case where Spokeo is the most recent case law.”

Even if the case goes en banc, it may be too late for Trump’s administration to go through with the order as initially filed as the 90-day period it requested will soon be over.

“Personally, I don’t think it’s going to affect much of anything,” said Allen. “The government’s going to fight it out in the circuit court and it’s going to take more than the 90-day suspension that the executive order covered anyway. I don’t know what it’s going to accomplish.”

Interestingly, there has been little to no reporting on the pivotal chief judge’s request, which Allen attributes to the complicated nature of the request. He does see encouragement with the request from a legal perspective with a judge stepping forward about a possible error in a ruling.

“I think from a legal standpoint, and I’m not an attorney, but it’s encouraging to see a judicial entity in what appears to be holding himself accountable when they see an error in the process because I think this judge saw something that was omitted and should have been brought up and wasn’t,” Allen said.

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