9th Circuit tosses Oregon National Guard ruling; judges to rehear case
Oct. 28, 2025 at 5:56 pm
By
Maxine Bernstein
oregonlive.com
A larger pool of judges on the 9th U.S. Circuit Court of Appeals will review whether to uphold a lower court’s order that bars President Donald Trump from sending Oregon National Guard troops to Portland.
A majority of the 29 active judges of the 9th Circuitvoted to reconsider the issue, throwing out an Oct. 20 decision by a three-judge panel of the court, the 9th Circuit’s Chief Judge Mary H. Murguia wrote in an order issued late Tuesday. She did not provide any further explanation.
As it mulls the matter, the appeals court let stand U.S. District Judge Karin J. Immergut’s temporary restraining order that bars federal deployment of the Oregon National Guard in Portland.
That order lasts through Saturday, and a second broader order Immergut issued that bars the federal deployment of National Guard from any state to Oregon remains in place through Sunday.
Meanwhile, a three-day trial is set to start in federal court in Portland on Wednesday before Immergut on the underlying merits of Oregon, California and the city of Portland’s challengeto Trump’s mobilization of National Guard members into federal service in Oregon.
Immergut said she wants to create “as robust a record” as possible setting out the events that led up to Trump’s Sept. 28 authorization of National Guard troops before issuing a final judgment on whether the federal deployment is lawful. The judge is compiling that record, expecting it will be reviewed by appeals courts after her ruling.
Related
On Oct. 20, the 2-1 majority of the three-judge 9th Circuit panel found that the president is due significant deference and that his decision to mobilize only 200 Oregon National Guard members for 60 days to Portland was a “measured response.”
The two Trump-nominated judges on the panel, Bridget S. Bade and Ryan D. Nelson, found that the federal government is likely to succeed in its argument that it is unable with “regular forces” to execute the laws of the U.S. as a result of protests outside the U.S. Immigration and Customs Enforcement building in Portland, one of the criteria required for the president to obtain control of Oregon National Guard troops.
The majority also criticized Immergut for restricting her assessment of the conditions outside Portland’s ICE facility to a limited time leading up to Trump’s Sept. 27 authorization of Guard members, saying the plain text of federal law contained “no such limitations.”
The dissenting judge, Susan P. Graber, urged her colleagues to review and reverse the majority’s decision. She not only urged an immediate review of the majority’s decision by her colleagues on the 9th Circuit, but also urged those “watching this case unfold” to “retain faith in our judicial system for just a little longer.”
Last Friday, the 9th Circuit put a temporary administrative hold until 5 p.m. Tuesday on the three-judge panel’s ruling.
Senior Circuit Judge Sidney R. Thomas cautioned that the brief administrative order “expresses no views on the merits of this matter.” Thomas serves as the court’s coordinator for so-called en banc reviews, which are reviews of rulings by a larger contingent, or 11 judges, of the 29-active member court. He previously served as chief judge of the 9th Circuit from 2014 to 2021.
Trial ahead
Also Tuesday, Immergut held a pretrial conference to prepare for the three-day trial that starts at 9 a.m. Wednesday. She informed the lawyers involved that there will be a “hard stop” at 5 p.m. each day because the court does not have sufficient security or staffing to stay any later. Much of the court staff is working without pay during the federal government shutdown.
She told lawyers that she wants to better understand at trial how protests are impeding federal officers from the execution of their law enforcement work, whether Portland police are willing to assist the Federal Protective Service in safeguarding the ICE facility and how many federal officers have been deployed to the building since June.
She also said she wants some more information about certain nights of activity that the three-judge panel of the 9th Circuit had highlighted in its ruling, including details about an alleged Sept. 9 threat of a bomb detonating at the property that did not materialize.
The judge also asked about one exhibit that appeared to indicate that the Oregon National Guard was deployed to the ICE facility sometime between midnight and 2 a.m. on Oct 5.
“Which is when my first TRO (temporary restraining order) was still in place,” Immergut said. “That would suggest it’s a violation of the TRO.”
Immergut said she might not be reading the federal document correctly and asked federal government lawyers to clarify.
Attorney Jean Lin, of the U.S. Department of Justice, said she’s not familiar with the document.
Linn said federal lawyers “triple and double-checked” with the U.S. Defense Department and National Guard members and “double-confirmed that no one was deployed” from the Oregon National Guard.
Immergut responded, “I’m going to assume the best — you’ll let me know.”
Maxine Bernstein.
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