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August 17, 2017

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

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.  

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.

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.

© 2017 Andrews Kurth Kenyon LLP


About this Author

Marc D. Katz, Labor Law Attorney, Andrews Kurth Law Firm

Marc is the Chair of the firm's Labor & Employment section and focuses his practice on management-side labor and employment litigation and counseling. His experience includes drafting, negotiating and litigating non-competition and confidentiality agreements, trade secret litigation, state and federal employment discrimination cases, wage and hour issues, medical leave, FMLA and ADA compliance issues, class action employment cases, wrongful discharge, and defamation litigation.

Marc develops workplace policies and advises corporate clients on mass layoffs, reductions in force,...

Isabel Crosby, Labor & Employment Litigation Attorney

Isabel has experience representing employers as the first or second chair litigator in both state and federal courts and in administrative actions before the Department of Labor’s Office of Administrative Law Judges, the Occupational Safety & Health Review Commission, the Texas Education Agency, and the National Labor Relations Board.

Her practice focuses on negotiating settlements in anticipation of and during litigation and advising and counseling management on labor and employment issues, including those arising under Title VII, the ADA, the FLSA, the FMLA, OSHA, and the NLRA. Isabel also represents management at grievance hearings, board of trustee hearings, and internal meetings and has drafted responses to the EEOC and other government agencies. In addition, she provides management training on topics including workplace violence, the ADA, rightful discharges, the electronic workplace, wellness programs, effective documentation, and collective bargaining agreement compliance.

Jayde Ashford Brown, Andrews Kurth, management side labor litigation lawyer, employment matters attorney

Jayde Ashford Brown represents corporate clients in management-side labor and employment matters arising under federal and state law, including, but not limited to Title VII, the FLSA, the FMLA, the ADA, the ADEA, and workers compensation under Section 451 of the Texas Labor Code. In addition to litigation, Jayde counsels clients on best practices relating to hiring and termination decisions, employment policies and employee investigations, and the OFCCP and related AAP obligations for federal contractors and subcontractors. Jayde also prepares and negotiates separation...