Judges Rap Rehearing Denial in Federal Staffing-Cuts Case

Tuesday, January 6, 2026

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Judges Rap Rehearing Denial in Federal Staffing-Cuts Case

Ninth Circuit Jurists Decry Panel Decision, Leaving Intact Order Requiring That U.S. Agencies Provide Unions With Internal Workforce Reduction Plans Following Executive Order, as Violative of Separation of Powers

By a MetNews Staff Writer

Five Ninth U.S. Circuit Court of Appeals judges yesterday bemoaned the denial of a petition for an en banc rehearing in a case in which a divided three-judge panel declined a request by the Executive Branch for vacatur of a District Court order demanding that U.S. government agencies provide documents relating to their plans for reducing workforces pursuant to an executive order calling for a “critical transformation of the Federal bureaucracy.”

Senior Circuit Judge William A. Fletcher authored the statement of decision accompanying the Ninth Circuit order, filed Sept. 19, denying the government’s petition for a writ of mandamus relating to a July discovery decree by Senior District Court Judge Susan Illston of the Northern District of California. The order calls for the in-camera production of the reduction-in-force and reorganization plans of certain federal agencies.

Circuit Judge Johnnie B. Rawlinson joined in Fletcher’s statement. Circuit Judge Sandra S. Ikuta (now deceased) dissented, saying that “[t]he majority…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.”

Circuit Judge Patrick J. Bumatay, joined by Circuit Judges Consuelo M. Callahan, Ryan D. Nelson, Lawrence VanDyke, and Eric Tung, authored a statement dissenting from the denial of rehearing en banc, agreeing with Ikuta and calling the panel decision “a blow to the separation of powers.”

Fletcher and Rawlinson penned a response, saying that “[o]ur published order speaks for itself” but writing that “some of the arguments” raised by Bumatay’s dissent “deserve additional response.”

Each of the dissenters was appointed by a Republican. Fletcher and Rawlinson are both appointees of President Bill Clinton, a Democrat.

Executive Order

At issue in the case is Executive Order 14210, signed by President Donald Trump last 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….”

Following the order, a coalition of labor unions, nonprofit organizations, and local governments—including the counties of San Francisco and Santa Clara—filed a complaint against Trump and other officials in August, challenging the executive order, an implementing memorandum from the Office of Management and Budget, and the agencies’ plans for reorganization.

After Ilston granted the plaintiff’s motion for a preliminary injunction last May, opining that the president must seek Congressional “cooperation” to enact such a large-scale reorganization of the federal government, the U.S. Supreme Court granted an emergency stay on July 8, noting that the Executive Branch was “likely to succeed on its argument” that the actions were lawful. Ten days later, Ilston ordered the in-camera production of the agency plans.

Mishandled From Start

Bumatay wrote:

“The Ninth Circuit has mishandled this case from the start. The first misstep? Weeks after the complaint’s filing, the district court ruled that the President was without authority to direct executive agencies to even plan for RIFs and enjoined ‘any actions’ directed by the President’s Executive Order….This was ‘a sweeping preliminary injunction that strip[ped] the Executive of control over its own personnel.’…[A] divided motions panel of the Ninth Circuit then refused to stay the preliminary injunction….The Supreme Court made swift work of our poor judgment. It stayed the preliminary injunction….Sure, the Court didn’t opine on each agency’s individual RIF plan but it didn’t bless wholesale judicial intervention in particular agency’s RIFs either.”

He continued:

“[I]n July, even after the Supreme Court stayed the preliminary injunction, the district court continued to order the government to produce its internal RIF Plans to Plaintiffs’ counsel….The only solace for the government? The district court granted a protective order preventing counsel from sharing the internal RIF plans.”

Saying that, “[o]nce again, we failed to fix this mistake” by denying the government’s petition for a writ of mandamus, the jurist commented that “[t]his error…seriously degrades the separation of powers—opening the federal government’s internal deliberations to the whims of district courts opposed to presidential policies.”

Noting that the deliberative process privilege permits the government to withhold documents that are “predecisional” and “deliberative,” he commented that “[t]he…internal RIF Plans easily fit the requirements” and argued that “the panel majority flipped any presumption of non-disclosure and sanctioned broad production of internal government documents on the flimsiest rationale.”

Not Personal

The judge asserted that the panel majority suggested that the “internal RIF Plans as non-deliberative because they ‘represent the considered position of the agency…, and not the personal opinions of an individual’ within the government.” Disagreeing with this characterization, he said:

“As Judge Ikuta’s dissent explained, the deliberative process privilege is not limited ‘to personal opinions’ alone….The panel majority seemingly highlighted one category of clearly deliberative material,…and concluded it represented the exclusive universe of deliberative documents.”

Calling the move “an extraordinary narrowing of the privilege,” he further opined:

“[U]nder settled APA rules, the whole record is the ‘record the agency presents.’…As Judge Ikuta recognized, compelling extra-record discovery requires, at a minimum, putting plaintiffs to their burden of showing a ‘narrow exception applied or a ‘strong showing of bad faith or improper behavior.’…But those limits were cast aside under the panel majority’s ruling. According to the panel majority, merely saying the magic words of ‘ultra vires’ gets plaintiffs around any limits on discovery in APA suits.”

Acknowledging that “the threshold for mandamus is high,” he asserted that the standard was met, reasoning:

“[W]hile this case began with a Sharpie, unless corrected, it ends with a blow to the separation of powers. The Supreme Court already had to step in once in this case. But we failed to police ourselves yet again. We should have taken this case en banc to correct the panel majority’s ‘departures from settled principles.’ ”

Bumatay added:

“Our respect for the Constitution demands that we treat the internal deliberative documents of a co-equal branch of government with appropriate care. We don’t cavalierly intrude on those communications because we disfavor the government’s actions or believe it could have managed things differently. Because the panel majority’s decision ordered the production of internal government plans, proposals, and recommendations without special consideration for the separation of powers, I respectfully dissent.”

Other View

Fletcher and Rawlinson asserted that Bumatay’s dissent “pushes on an open door,” saying that “[i]t is hard to argue that the ARRPs are predecisional when ‘extensive reorganizations and RIFs [were] already underway” but that “[w]e nevertheless assumed in our order that the privilege for predecisional, deliberative documents applies.”

Noting that “the government argued…that the deliberative process privilege was not overcome and that mandamus was warranted, relying on our well-established four-factor…test,” they wrote:

“Our order carefully considered the four…factors and concluded that the privilege was overcome and that mandamus was not warranted….In disagreeing with our conclusion, our colleague nowhere addresses [that] test.”

Saying that Bumatay only considered whether a “narrow exception” to the privilege that deals with documents that are “outside of the administrative record” applies, they opined that “[o]ur colleague overlooks the fact that the government successfully opposed producing an administrative record in the district court.” They added:

“[O]ur colleague fails to adequately account for the exceptional standard for granting mandamus….Absence of ‘clear error’ is dispositive and fatal to a mandamus petition….There was no error in the district court’s application of [the four-factor test], which our colleague’s dissent does not address. We denied mandamus—and this court appropriately denied en banc rehearing—because the clear error standard was not met.”

The case is American Federation of Government Employees v. Trump, 25-3293 and 4476.