Full Ninth Circuit keeps Trump's Oregon National Guard efforts blocked for now, tossing order that sided with Trump

The appeals court voted to vacate last week's 2-1 order, which had sought to allow Trump to send troops to Portland during litigation.

A majority of the West Coast federal appeals court on Tuesday voted for closer review of the Trump administration’s request to let President Donald Trump federalize and deploy the Oregon National Guard in Portland — tossing out an order from last week that sided with Trump.

Tuesday‘s order from the U.S. Court of Appeals for the Ninth Circuit means that U.S. District Judge Karin Immergut’s temporary restraining order blocking deployment of the National Guard will remain in effect for now.

The Tuesday order from the full Ninth Circuit vacated last week’s 2-1 order, which had granted the Justice Department a stay of the TRO pending appeal. The appeals court will now rehear DOJ’s stay request en banc, with an 11-judge panel.

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After Immergut had issued her initial TRO on October 4, DOJ asked the Ninth Circuit for a stay of that TRO pending appeal. A 2-1 panel — with two Trump appointees in the majority — granted that request on October 20, but a judge of the Ninth Circuit nearly immediately asked for a vote from the full court on whether that decision should be reconsidered en banc.

Then, on October 24, the court “administratively stayed” the panel’s stay decision through 5 p.m. PT Tuesday while it considered the en banc request. That decision meant the TRO was not stayed over the weekend — while Immergut had been considering the effect of the Ninth Circuit’s stay on a second TRO she had issued in the case barring deployment of any National Guard in the state. (The most important effects of the confusing October 24 order were that it basically put everything about the TROs on hold until there was an en banc decision — and kept National Guard from being deployed in the meantime.)

Minutes after that 5 p.m. deadline passed on Tuesday, the new order from the Ninth Circuit came down, granting en banc rehearing and vacating the October 20 stay order.

Notably, the order came just six days after the Ninth Circuit had announced it denied en banc review of an earlier order granting a similar stay pending appeal in the case over the Trump administration National Guard deployment in California.

Given the fact that Tuesday’s vote in favor of en banc review followed so closely after the announcement that they rejected en banc review in the California case, it is clear that a majority of the court felt that, even at this early stage of the litigation, it was not workable to allow last week’s order in the Oregon case to stand.

What happens now?

While an en banc proceeding normally would consist of all of the active judges of the appeals court, the size of the Ninth Circuit — with 29 active judges — has led it to implement what it calls a “limited en banc” procedure, whereby the chief judge and 10 randomly selected active judges will rehear the case. (Judge Susan Graber, a senior judge and Clinton appointee, will also be eligible to be on the en banc panel despite being a senior judge because she was on the initial panel.)

Although en banc review generally takes significant time, it is possible that the time-sensitive nature of this request — for a stay pending appeal over a TRO — could lead the court to expedite the process. (Or not. See the footnote.)

As all of that is happening, however, Immergut is also slated to begin her three-day bench trial in the Oregon case on Wednesday. The district court docket has been a flurry of activity this week, and a final pretrial conference was held on Tuesday.

As such, a final judgment in the case — leading to a new set of appeals — could come from Immergut before the en banc court rules.¹

During that time, it is almost certain that some order will remain in place blocking the deployment of any National Guard by the Trump administration in Oregon.

1. This could, in fact, be what the full appeals court — or, at least, some of the judges — expects. As such, this en banc review could essentially just be putting off the matter until the final judgment comes up to the court on appeal.