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Ninth Circuit:
Discovery of Federal Workforce Reduction Plans May Proceed
Panel Rejects Trump Administration’s Petition for Writ of Mandamus Seeking Vacatur of Order Requiring in Camera Production of Restructuring Plans, Drawing Dissent Over Separation of Powers Concerns
By Kimber Cooley, associate editor
A divided panel of the Ninth U.S. Circuit Court of Appeals on Friday denied a petition for a writ of mandamus filed by the Executive Branch which sought the vacatur of an order by a District Court judge demanding that U.S. government agencies provide documents relating to plans to reduce their workforces pursuant to an executive order signed by President Donald Trump calling for a “critical transformation of the Federal bureaucracy.”
In an opinion accompanying Friday’s order, by Senior Circuit Judge William A. Fletcher and joined in by Circuit Judge Johnnie B. Rawlinson, the court rejected the government’s claim that the deliberative-process privilege shields the documents from disclosure. Fletcher wrote:
“[W]e are willing to assume…that at least some of the [plans] are predecisional deliberative documents and that the privilege therefore applies. So assuming, we agree with the district court’s conclusion that the privilege is overridden in the circumstances of this case.”
Circuit Judge Sandra S. Ikuta dissented, saying the majority discounted the separation of powers concerns at stake in the discovery order.
Fletcher and Rawlinson were both appointed by President Bill Clinton, a Democrat. Ikuta was an appointee of Republican President George W. Bush.
Executive Order
At issue is Executive Order 14210, signed by President Trump in February, which provides in part:
“Agency Heads shall promptly undertake preparations to initiate large-scale reductions in force (RIFs), consistent with applicable law….All offices that perform functions not mandated by statute or other law shall be prioritized in the RIFs, including all agency diversity, equity, and inclusion initiatives; all agency initiatives, components, or operations that my Administration suspends or closes; and all components and employees performing functions not mandated by statute or other law who are not typically designated as essential….”
On Aug. 5, a coalition of labor unions, nonprofit organizations, and local governments—including the counties of San Francisco and Santa Clara—filed suit against the President and other officials, challenging the executive order, an implementing memorandum from the Office of Management and Budget, and the agencies’ plans for reorganization.
The plaintiffs assert that the Executive Branch exceeded its constitutional authority in ordering the downsizing and acted in violation of the Administrative Procedure Act.
Preliminary Injunction
Friday’s order is the latest development in litigation that has already reached the U.S. Supreme Court. In May, Senior District Court Judge Susan Illston granted the plaintiff’s motion for preliminary relief, saying:
“The President has the authority to seek changes to executive branch agencies, but he must do so in lawful ways and, in the case of large-scale reorganizations, with the cooperation of the legislative branch….Indeed, the Court holds the President likely must request Congressional cooperation to order the changes he seeks, and thus issues a preliminary injunction to pause large-scale reductions in force and reorganizations in the meantime.”
After the Ninth Circuit rejected the government’s request to pause the order pending appeal, the U.S. Supreme Court granted an emergency stay of the preliminary injunction in July, noting that the government was “likely to succeed on its argument that the Executive Order and Memorandum are lawful,” but declining to address “the legality of any Agency…Reorganization Plan produced or approved pursuant to the Executive Order and Memorandum.”
Discovery proceedings were ongoing in the district court and, on July 18, Illston ordered the in-camera production of the federal agencies’ plans for reductions and reorganizations (referred to in the opinion as “ARRPs”). A few days later, the Executive Branch petitioned the Ninth Circuit, which granted an administrative stay pending review of the writ request at issue in Friday’s order.
Deliberative Process
Fletcher noted that “[a] document must be both ‘predecisional’ and ‘deliberative’ for the deliberative process privilege to apply and questioned whether the ARRPs could meet those requirements, saying:
“As the district court put it, ‘[I]f the ARRPs are non-final planning documents that do not commit an agency to take any specific action, pursuant to what, then, are the agencies implementing their large-scale reorganizations and RIFs?’ ”
However, he said that even if they meet the threshold, the disclosure would still be justified, writing:
“The government’s arguments against in camera disclosure do not withstand scrutiny….[T]he government contends that the ARRPs subject to the district court’s discovery order are not relevant to any claims plaintiffs could plausibly assert in the wake of the Supreme Court’s stay order….The government is mistaken. The ARRPs are plainly relevant to the very issue that the Court’s order expressly leaves open….It is therefore entirely appropriate for the district court to proceed with discovery of those plans toward an initial determination of their legality.”
Applying the factors relevant to whether the disclosures are appropriate regardless of an assertion of privilege, the jurist remarked:
“The evidence provided by the ARRPs cannot be obtained elsewhere…; the government is a party to the litigation…; and since the ARRPs do not represent the personal views of individual authors, it is unlikely that ‘disclosure would hinder frank and independent discussion regarding contemplated policies and decisions’….The government suggests that ‘production will have a chilling effect on internal Executive Branch deliberations,’…but it offers no evidentiary support for this claim.”
He added:
“Our denial of mandamus accords with the longstanding presumption that district courts have broad latitude to control discovery matters….Far from abusing its discretion, the district court has exercised care and restraint in managing discovery, affording ‘careful consideration’ to the government’s assertion of privilege.
Ikuta’s View
Ikuta wrote:
“The majority today does not acknowledge the district court’s clear error in ordering the production of documents that implicate the executive branch’s deliberative processes, even though producing such intra-executive branch dialogues implicates separation of process concerns that require the most ‘careful consideration’ by the judiciary….Because the district court’s production order was clearly erroneous as a matter of law, and the other mandamus factors also favor the government, I respectfully dissent from the decision to deny mandamus relief.”
She added:
“To conclude otherwise, the majority assumes that the ARRPs are final agency actions and then characterizes the issues involved as ordinary ‘discovery matters.’…Therefore, I respectfully dissent from the denial of the government’s petition for a writ of mandamus.”
Yesterday’s order also vacates the preliminary injunction order and grants the plaintiffs’ request for a remand of the government’s pending appeal relating to the decree, saying:
“[R]emand will afford the district court the opportunity to consider the impact of the Supreme Court’s recent decision in Trump v. Casa….[which] severely limits the power of district courts to issue nationwide injunctions.”
Ikuta joined in that portion of the order.
The case is American Federation of Government Employees v. Trump, 25-4476 and 25-3293.
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