Background
After disturbances in Los Angeles, President Donald Trump invoked 10 U.S.C. § 12406 in June 2025 and ordered 4,000 members of the California National Guard into federal service for 60 days. California and Governor Gavin Newsom sued the President, the Secretary of Defense, and the Department of Defense. The district court entered an order barring the initial federalization and deployment, prompting the government’s appeal in No. 25-3727. That appeal was fully briefed and argued, and the panel had begun drafting an opinion.
After the government issued orders extending the Guard’s federalization, the district court entered another injunction barring the extension. The government appealed that ruling in No. 25-7781, but no merits briefs had been filed. The government later moved under Federal Rule of Appellate Procedure 42(b)(2) to dismiss both appeals, and California opposed dismissal.
The Court’s Holding
The panel denied the government’s motion to dismiss No. 25-3727. It held that dismissal on an appellant’s motion under Rule 42(b)(2) is discretionary, not mandatory. The appeal was not moot because a merits ruling could provide California effective relief against similar future federalization, and the panel emphasized the substantial resources already invested after full briefing and oral argument.
The panel also concluded that retaining No. 25-3727 would limit the potential manipulation of precedent, given that the government had not abandoned its merits positions and had indicated that similar deployments could occur again. By contrast, the panel granted dismissal of No. 25-7781 because that unbriefed appeal had little practical significance in light of the panel’s same-day decision affirming the initial-federalization injunction, the court had devoted comparatively few resources to it, and dismissal presented less risk of strategic manipulation. Judge Bennett dissented in part, agreeing that No. 25-7781 should be dismissed but concluding that No. 25-3727 should be dismissed as well because he saw neither concrete injury to California nor evidence of gamesmanship sufficient to depart from the usual practice of granting voluntary dismissal.
Key Takeaways
- Rule 42(b)(2) gives an appellate court discretion to deny an appellant’s motion to dismiss its own appeal.
- The panel retained No. 25-3727 because the controversy remained live, substantial judicial and party resources had already been invested, and dismissal could permit strategic avoidance of precedent.
- The panel dismissed No. 25-7781 because it was unbriefed, had received limited judicial attention, and had little practical significance after the ruling concerning the initial federalization.
Why It Matters
The order underscores that an appellant does not have an absolute right to withdraw an appeal after invoking appellate jurisdiction. Courts may consider whether effective relief remains available, how far the appeal has progressed, and whether dismissal could distort the development of precedent.
The split disposition also shows that those considerations are appeal-specific: closely related appeals can receive different treatment depending on their procedural stage, practical importance, and potential for strategic use of voluntary dismissal.