The U.S. Court of Appeals for the Ninth Circuit has denied a petition for rehearing, both at the panel level and en banc, in a high-stakes legal battle concerning the disclosure of internal government documents related to planned large-scale federal workforce reductions (RIFs) initiated under President Donald J. Trump’s Executive Order 14210. The decision affirms the panel’s earlier ruling, which had both denied the government’s request for a writ of mandamus to stop discovery and vacated a district court preliminary injunction.
The case pits a coalition of federal employee unions, advocacy groups, and local governments (the Appellees) against President Trump and numerous federal agencies and officials (the Appellants), including newly created or proposed departments like the “Department of Government Efficiency” led by Elon Musk.
The Core Dispute: Discovery of Internal Planning Documents
The controversy centers on the district court’s order compelling the government to produce internal Agency RIF and Reorganization Plans (ARRPs) to the plaintiffs. These ARRPs were developed following Executive Order 14210, which directed agencies to prepare for significant workforce cuts based on statutory mandates and efficiency goals.
The government parties sought a writ of mandamus—an extraordinary judicial order—to halt this discovery, arguing that the ARRPs were protected by the deliberative process privilege, a key component of executive privilege designed to shield internal government deliberations from premature public scrutiny.
Panel Majority Defends Discovery Order
In the order denying rehearing, Circuit Judges William A. Fletcher and Johnnie B. Rawlinson explained why they upheld the district court’s decision to allow discovery, despite the government’s assertion of privilege.
First, the judges noted that while the Supreme Court had previously stayed a preliminary injunction in an earlier iteration of this case, the Court explicitly avoided ruling on the “legality of any Agency RIF and Reorganization Plan.” This left the question of whether the district court could examine these documents to determine their legality squarely open.
Second, the panel acknowledged the government’s argument that the ARRPs were protected by the deliberative process privilege but concluded that, under the specific facts of this case, the privilege was overcome. The panel suggested the ARRPs might not even qualify as “predecisional” since reorganizations were already underway, or “deliberative,” as they appeared to represent the agency’s considered position rather than mere personal opinions. However, the judges clarified they were willing to assume the privilege applied *arguendo* before finding it overridden based on the established four-factor test from *FTC v. Warner Commc’ns Inc.*
Third, the majority pointed out that the government’s mandamus petition relied heavily on the Supreme Court’s decision in *Department of Commerce v. New York*, which requires a “strong showing of bad faith or improper behavior” for discovery outside the administrative record. The panel emphasized that this standard was irrelevant because the government had successfully resisted compiling a conventional administrative record in the first place. As the court noted, the government cannot ignore ordinary processes and then invoke presumptions that usually attend those very processes to shield its actions from scrutiny.
Finally, the judges stressed the high bar for mandamus relief, which requires showing “clear error” by the lower court. They concluded that the district court faithfully applied the agreed-upon legal test (*Warner* test) and committed no clear error in its analysis.
Dissent Highlights Separation of Powers Concerns
Judge Carlos G. Bumatay, joined by four other judges, dissented from the denial of en banc review, arguing the panel majority made multiple errors that undermined constitutional separation of powers principles.
Judge Bumatay contended the panel majority wrongly questioned whether the RIF Plans were deliberative in the first place, suggesting an unduly narrow view that only “personal opinions” qualify, contrary to precedent. More critically, the dissent argued the panel severely weakened the deliberative process privilege by failing to give proper weight to the separation-of-powers concerns inherent in compelling disclosure of intra-executive branch communications.
The dissent further criticized the panel for suggesting that ordinary discovery rules—which typically limit review to the administrative record—do not apply when the government undertakes actions perceived as “massive” or “sweeping” without “ordinary processes.” Judge Bumatay warned this creates a “blueprint for making an end-run around the APA’s normal discovery rules.”
The dissent also took issue with the panel’s acceptance of the plaintiffs’ “ultra vires” (acting beyond legal authority) claim as a password for unlimited discovery. Citing recent Supreme Court guidance, Judge Bumatay asserted that *ultra vires* review is narrowly confined and should not automatically bypass APA discovery limits, especially when statutory review mechanisms exist.
“Our respect for the Constitution demands that we treat the internal deliberative documents of a co-equal branch of government with appropriate care,” Judge Bumatay wrote in conclusion, arguing that the panel failed to show how the government’s interest in confidentiality was overcome.
The Ninth Circuit’s denial means the discovery order compelling the production of the internal RIF and Reorganization Plans will stand, at least for now, pending any further appeal or action in the underlying district court case.