Reported / Citable
Background
In June 2025, President Trump invoked 10 U.S.C. § 12406 to federalize 4,000 members of the California National Guard for 60 days in response to disturbances in Los Angeles, citing the need to protect federal personnel and property. Governor Newsom and the State of California sued, challenging the federalization as unlawful. The district court issued a temporary restraining order enjoining the deployment and returning control of the Guard to the Governor, which the Ninth Circuit treated as a preliminary injunction and stayed pending appeal (Case No. 25-3727). That appeal was fully briefed and argued on October 22, 2025. Subsequently, the district court issued two further injunctions: one barring use of the Guard for law enforcement unless Posse Comitatus Act exceptions were satisfied (Case No. 25-5553, held in abeyance), and another enjoining the extension of the initial federalization after Defendants issued new orders (Case No. 25-7781). The Ninth Circuit granted a partial stay of the extension injunction but later lifted it with Defendants' consent. No merits briefs were filed in Case No. 25-7781.
Defendants moved to dismiss both pending appeals (Nos. 25-3727 and 25-7781) under Federal Rule of Appellate Procedure 42(b)(2), which permits voluntary dismissal on the appellant's motion. Plaintiffs opposed both motions. The panel considered whether to exercise its discretion to deny dismissal in Case No. 25-3727, where substantial judicial resources had been expended, versus Case No. 25-7781, which remained unbriefed. The Supreme Court's intervening decision in Trump v. Illinois, 146 S. Ct. 432 (2025), and the en banc Ninth Circuit's dismissal of a similar appeal in Oregon v. Trump, 171 F.4th 1144 (2026), formed part of the backdrop for Defendants' motions.
The Court’s Holding
The panel denied the motion to dismiss the appeal in Case No. 25-3727 (the initial federalization injunction) for three reasons. First, the appeal is not moot because a merits decision would provide prospective relief by preventing future federalization under similar circumstances, and Defendants have expressly threatened to repeat the conduct. Second, the court and parties have invested substantial time: the appeal was fully briefed, argued, and the panel had begun drafting an opinion. Third, denying dismissal curtails strategic behavior by preventing Defendants from using Rule 42(b) to avoid an adverse precedent while reserving the right to re-litigate the same issues in a future case before a different panel. The panel distinguished Oregon v. Trump, where the State agreed to dismissal and briefing had not begun.
The panel granted the motion to dismiss the appeal in Case No. 25-7781 (the federalization-extension injunction). That appeal has little practical significance in light of the panel's separate decision on the merits of the initial federalization injunction. The parties have not briefed the extension appeal, the court has devoted minimal resources to it, and its dismissal poses less risk of strategic manipulation because the issues may not recur in future federalization cases.
Key Takeaways
- A voluntary dismissal motion under Rule 42(b) is discretionary, not mandatory, and courts may deny it to prevent strategic manipulation of precedent.
- An appeal of an injunction is not moot merely because the enjoined conduct has ceased, if a merits ruling would provide prospective relief against recurrence.
- Substantial judicial investment in briefing, argument, and opinion-drafting weighs heavily against granting a voluntary dismissal motion.
- A party's public statements threatening to repeat the challenged conduct support a finding that dismissal would enable forum-shopping and precedent avoidance.
- Appeals that are unbriefed and lack practical significance in light of other rulings are appropriate for voluntary dismissal.
Why It Matters
The decision establishes a significant precedent on the discretionary denial of Rule 42(b) motions in high-stakes constitutional litigation involving federal-state power dynamics. By refusing to allow the federal government to dismiss an appeal after full briefing and argument—particularly where the Executive has signaled intent to repeat the contested action—the Ninth Circuit affirms the judiciary's role in resolving novel separation-of-powers questions rather than permitting their evasion. The ruling also clarifies that mootness does not bar review when a live controversy persists over the legality of a repeatable executive action.
The partial dissent by Judge Bennett warns that retaining jurisdiction over interlocutory appeals in a shifting legal landscape risks deciding momentous issues prematurely and without adequate briefing on all claims, such as the Tenth Amendment and ultra vires arguments. Judge Bennett would have granted the motion to dismiss Case No. 25-3727, finding no signs of gamesmanship and no specific injury to Plaintiffs-Appellees, and citing the en banc court's dismissal in Oregon v. Trump as directly on point.