Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Trump administration must provide unredacted firing plans to court, redacted versions to plaintiffs, (Jul 22, 2025)

By Brandi O. Brown, J.D.

The government sought to invoke the deliberative process privilege to prevent being compelled to produce the ARRPs.

Responding to the “urgent request” by plaintiffs, including AFGE, that it issue a final ruling on the motion for reconsideration filed by the Trump administration in May, the Northern District of California has denied in part and granted in part the Trump administration’s motion for a protective order or reconsideration.

Previously, the court had granted a TRO ordering the administration to produce the Agency RIF and Reorganization Plans (ARRPs) that had been created pursuant to Executive Order 14210 and OMB guidance. After the urgent request, the district court ordered the administration to submit a response, which it did, arguing that it should not be compelled to produce the ARRPs based on the deliberate process privilege. The administration also sought a protective order. Late last week, the court denied in part that motion for a protective order or reconsideration.

EO 14210. On February 11, 2025, President Trump issued Executive Order (EO) 14210, “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative.” 90 Fed. Reg. 9,669 (Feb. 11, 2025). By its terms, the EO “commences a critical transformation of the Federal bureaucracy[.]”

OMB/OPM Memo. In response to EO 14210, the directors of OMB and the Office of Personnel Management (OPM) sent a memo to heads of executive departments and agencies on February 26, 2025, instructing agency heads to submit Agency RIF and Reorganization Plans (ARRPs) to OMB and OPM for review and approval. Agencies were directed to submit a “Phase 1” ARRP by March 13, 2025, and a “Phase 2” ARRPs by April 14, 2025.

Lawsuit and motion for TRO. The plaintiffs filed their complaint on April 28, 2025, alleging that EO 14210 is ultra vires and usurps Congressional authority in violation of the Constitution’s separation of powers; that OMB, OPM, and DOGE also acted ultra vires or beyond their authority in directing agencies to submit ARRPs and engage in RIFs; that the February 26, 2025, memo violated the Administrative Procedure Act (APA) in several ways; and that the federal agency defendants’ ARRPs also violate the APA.

In May, the court found the plaintiffs were entitled to a TRO and that they showed a likelihood of success on their claim that the EO usurps Congress’s Article I powers, and no statute gives OPM, OMB, or DOGE the authority to direct another federal agency to engage in large-scale terminations, restructuring, or elimination of itself. It also determined there was a likelihood of success on the plaintiffs’ claims that OPM and OMB engaged in rulemaking to implement the EO without the public notice and comment process required by the APA. The administration moved for reconsideration, for the first time expressly invoking the deliberative process privilege.

Ninth Circuit. In late May, the district court issued a preliminary injunction, but did not rule on whether the ARRPs should be disclosed. The administration appealed and a divided Ninth Circuit panel upheld the preliminary injunction, finding that the government had yet to show a single piece of evidence to support its allegation of irreparable injury resulting from the district court’s temporary restraining order or preliminary injunction.

SCOTUS weighs in. Earlier this month, the U.S. Supreme Court issued a two-paragraph unsigned order staying the preliminary injunction pending disposition of the appeal in the Ninth Circuit and disposition of a writ of certiorari. It found that the government was likely to succeed on its argument that the executive order and a joint memorandum from OMB and OPM implementing the order are lawful. It expressed no view on the legality of any Agency RIF and Reorganization Plan produced or approved pursuant to the order and memorandum. Justice Sotomayor concurred in the grant of a stay and Justice Jackson dissented.

Deliberative process privilege. Considering the motions and responses filed by the parties, the federal district court examined whether the deliberative process privilege should prevent the government from being compelled to produce the ARRPs. “The deliberative process privilege is qualified,” the court explained, “not absolute.” To determine whether the government could assert it in this case, the court explained, requires answering “several questions.”

Questions to ask. “First, are the documents relevant to the litigation? If so, are the documents of the nature to be covered by the privilege—that is, are they pre-decisional and deliberative? Even if so, should the privilege be qualified and overridden by other considerations? Finally, if the documents are ordered produced, should their disclosure be limited by a protective order?”.

Supreme Court’s order. Although the government has argued “repeatedly” in its recent filings that the Supreme Court’s order staying the preliminary injunction “effectively ends this case,” the court did not agree with that reading. In granting the preliminary injunction, it noted, it “did not reach several of the claims in the amended complaint.” Thus, the High Court’s stay of the injunction had no bearing on those claims.

Moreover, the High Court’s “terse order” to stay the injunction was “inherently preliminary” and the Ninth Circuit was still to determine whether the preliminary injunction was appropriate. Moreover, the High Court stated explicitly that it was expressing no view on the legality of the ARRPs and that the plans themselves were not before it. In her concurrence, Justice Sotomayor, the court explained, had “noted that the Supreme Court’s decision allows the district court to consider the legality of the ARRPs “in the first instance.””

Relevant, plainly. In this matter, the ARRPs are relevant to the claims in the amended complaint, the court determined, noting as an example the APA claim alleging arbitrary and capricious action by the federal agency defendants, for which the ARRPs themselves would be “highly relevant.”

“To summarize,” the court explained, “the ARRPs are plainly relevant.” Should they nevertheless be protected from disclosure because of the deliberative process privilege? To fall within that privilege, they must be both “predecisional” and “deliberative.” The court observed it was willing to assume without deciding that some of the ARRPs may include pre-decisional and deliberative materials.

The next question was whether that privilege should be qualified or overridden. Certain factors apply to that consideration, including the relevance of the evidence, the availability of other evidence, the government’s role in the litigation, and “the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.” The ARRPs are relevant, the court explained, and that information does not appear to be available elsewhere, in light of unsuccessful FOIA requests and unanswered questions by Senators. The third factor also favors the plaintiffs, the court stated. As for the final one, the court did not find that a protected disclosure of the ARRPs “as outlined” by the court “would chill future frank and independent discussions within agencies.”

Protective order granted via redactions. Notwithstanding its determination that “the information at issue is of grave public concern,” the court explained that at this “still-early stage of the case,” it would grant a protective order limiting distribution of the ARRPs to plaintiffs’ counsel and the Court only.

“All federal agency defendants’ ARRPs must be produced,” the court concluded, but it would allow the defendants to redact “any material addressing union negotiating strategy” to plaintiffs’ counsel, although that material had to be highlighted in the versions provided to the court. “This Court has afforded defendants several opportunities to propose redactions to the ARRPs,” the court noted by way of explanation for this approach, “but defendants have come back only with near-total redactions. The Court cautions defendants not to abuse this allowance by redacting material unrelated to union negotiation strategies.”

How many RIFs and where? Additionally, the court noted that “[i]n defendants’ application for a stay to the Supreme Court, the U.S. Solicitor General represented that “about 40 RIFs in 17 agencies were in progress and are currently enjoined.”” However, the defendants have been back-tracking, “telling this Court that, actually, those RIFs have not been finalized, many were in an early stage, and some are not now going forward.”

“The government’s shifting positions degrade the Executive’s credibility and further underscore the need for an examination of the documents themselves. The Court repeats a query that it previously posed: if 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?”.

“Further,” the court explained that in its order on July 9, 2025, it had directed the government defendants to “provide a list of the ‘about 40 RIFs in 17 agencies’ that defendants referenced in their Supreme Court stay application.” However, they “provided a list of agencies, not a list of the RIFs.” Thus, the court also ordered the defendants to “file with the Court, not under seal, a list of the RIFs referenced in the Supreme Court stay application. Defendants may note which RIFs, if any, agencies have decided not to move forward, or provide any other details they wish.”

The case is No. 25-cv-03698-SI.

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