President Donald Trump speaks during a lunch with African leaders in the State Dining Room of the White House, Wednesday, July 9, 2025, in Washington (AP Photo/Evan Vucci).
After several days of orders, accusations, stays, and mea culpas, a federal court of appeals has fully put the kibosh on a victory for the Trump administration in one of the ongoing legal scuffles over the federal use of state National Guard troops to police American cities.
Late Tuesday, the full U.S. Court of Appeals for the 9th Circuit voted to rehear en banc a case out of Oregon that was originally decided in the federal government”s favor by a three-judge panel early last week.
And in so doing, the panel’s decision has been “vacated,” according to Chief U.S. Circuit Judge Mary Murguia, a Barack Obama appointee.
“Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard,” the terse, one-paragraph order reads.
Love true crime? Sign up for our newsletter, The Law&Crime Docket, to get the latest real-life crime stories delivered right to your inbox.
While the full appellate court’s order is the first to formally rescind the pro-Trump panel’s earlier decision, the vacatur marks the second time the 9th Circuit has rendered the earlier stay ineffective.
The underlying litigation was filed on Sept. 28, premised on alleged violations of statutory law concerning troop deployments, the Administrative Procedure Act (APA), and the Constitution. Originally, only Oregon sued to stop the deployment of troops to Portland.
On Oct. 4, U.S. District Judge Karin Immergut, an appointee of President Donald Trump during his first term in office, granted a temporary restraining order (TRO) that expired on Oct. 18. The court’s order barred “the federalization and deployment of Oregon National Guard service members.”
The Trump administration immediately appealed to the U.S. Court of Appeals for the 9th Circuit seeking a stay and, later that same night, apparently tried an end-run around Immergut’s restraining order by communicating its intent to use 200 members of the California National Guard in Portland in lieu of the Beaver State’s own troops.
On Oct. 5, in response to the threat of Golden State troops being activated, California joined the litigation and filed an amended complaint as well as a second motion for a temporary restraining order — which Immergut granted that very same day.
The second restraining order, more broadly, enjoined the government “from deploying federalized members of the National Guard in Oregon.” And, similarly, it expired on its own terms on Oct. 19.
On Oct. 15, after a hearing, the district court found “good cause to extend” both of its own temporary restraining orders — pending the results of the then-ongoing appeal with the 9th Circuit.
On Oct. 20, the three-judge panel voted to stay the first restraining order in a clear win for the White House. The 2-1 majority decision was penned by Trump-appointed U.S. Circuit Judge Bridget S. Bade, with a concurrence by Trump-appointed U.S. Circuit Judge Ryan D. Nelson. In dissent was Bill Clinton-appointed U.S. Circuit Judge Susan P. Graber.
On Oct. 23, attorneys for Oregon alerted the appellate court to an issue with some of the figures provided by the U.S. Department of Justice in service of the government’s winning stay request.
“Plaintiffs write to alert the Court of a material factual error by defendants on which the panel relied to grant a stay pending appeal,” the citation of supplemental authorities reads. “Given that reliance, and the gravity of the interests at stake, plaintiffs ask that the panel immediately withdraw its order or, in the alternative, that the en banc court immediately vacate it.”
In that post-hearing discovery, the government “admitted that 115 FPS officers have never been redeployed to Portland.” Rather, the Beaver State says, “[o]nly a fraction of that number was ever in Portland at any given time before the President’s directive.” Citing four separate time frames, the discovery showed deployments of 27 officers, 31 officers, 29 officers, and 20 officers in Portland at any given time between the middle of June and end of October.
On Oct. 24, the full 9th Circuit administratively stayed, or paused, the panel’s own stay – “[w]ithout objection from the panel.”
On Oct. 27, the DOJ admitted multiple prior representations about federal deployments to Portland were “incorrect” and expressed “regret” for making numerous such “errors” in various court filings.
So, after the week-plus of missteps, the full 9th Circuit will have a chance to consider the merits of the first Immergut TRO. Notably, however, the second Immergut TRO has remained in effect the entire time – despite some protestations to the contrary due to the original, since-vacated, panel decision.
While the second restraining order was not appealed by the federal government or formally considered by the trio of judges, the panel strongly suggested that order should be paused as well.
“The district court stated that it granted the second TRO based on the same legal reasoning it provided in its order issuing the first TRO,” the panel’s opinion reads. “Defendants are thus correct that the first TRO and the second TRO rise or fall together on the merits of the issues raised in this motion for a stay pending appeal.”
Now, no matter what collection of circuit judges on the 9th Circuit have weighed in or how, the first TRO is in full effect, once again.
