Federal agents attempt to keep protesters back outside a downtown U.S. Immigration and Customs Enforcement (ICE) facility on Oct. 5, 2025, in Portland, Oregon. (Spencer Platt/Getty Images)
"Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 40(c)," the court said in a short order issued Tuesday.
There is no immediate timetable when the "en banc" court – consisting of a random selection of 11 Ninth Circuit judges – will hear the case.
Immergut, a Trump appointee, will preside over the trial in Portland set to begin Wednesday stemming from a lawsuit filed by the city and state against the Trump administration in a bid to block the troop deployment.
During the trial, witnesses are expected to take the stand for both sides and face cross-examination. The federal defendants will call officials from U.S. Immigrationa and Customs Enforcment (ICE), the War Department and the Federal Protective Service, the agency that provides security for federal buildings.
Immergut previously categorized protests in the city as relatively small and said such demonstrations did not justify the use of federalized forces and that the deployment could harm Oregon's state sovereignty.
"This country has a longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs," Immergut wrote in one filing, adding, "This historical tradition boils down to a simple proposition: this is a nation of Constitutional law, not martial law."
9TH CIRCUIT COURT RULES ON TRUMP'S NATIONAL GUARD DEPLOYMENT IN PORTLAND
U.S. Border Patrol agents detain a demonstrator during a protest outside of the ICE headquarters in south Portland, Oregon, on Thursday, Oct. 3, 2025. (Reuters/Carlos Barria)
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"Our city is not ravaged, and there is no rebellion," Rayfield also said. "Members of the Oregon National Guard are not a tool for him to use in his political theater."
Fox News Digital’s Ashley Oliver, Lee Ross and The Associated Press contributed to this report.
Greg Norman is a reporter at Fox News Digital.
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