Labor & Employment Law Daily Wrap Up, PROCEDURE—9th Cir.: Petition for en banc rehearing of case challenging federal RIFs denied, (Jan 6, 2026)

By Todd Harrison, J.D.

In issuing its denial, the panel took time to respond to a lengthy dissent arguing that the deliberative process privilege was not overcome with regard to the RIF documents.

In a case where the AFGE and others challenged President Trump’s Executive Order 14210 directing federal agencies to commence large-scale reductions in force, a Ninth Circuit panel denied a petition for a panel rehearing or en banc rehearing of its decision: (1) denying the government’s petition for a writ of mandamus challenging the district court’s discovery order requiring in camera production of agency RIFs; (2) vacating the district court’s preliminary injunction; and (3) remanding the matter to the district court. Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by four others, contended that in denying the mandamus petition, the panel had erred and en banc rehearing was required to correct the purported errors (American Federation of Government Employees, AFL-CIO v. Trump, Nos. 25-3293 and 25-4476 (9th Cir. Jan. 5, 2026)).

This action stemmed from AFGE v. Trump, 155 F.4th 1082 (9th Cir. 2025). Here, the government petitioned for rehearing en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration and the petition for panel rehearing or rehearing en banc was denied.

Dissent. Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Callahan, Nelson, VanDyke, and Tung, argued that the majority failed to acknowledge the district court’s “clear error” in ordering the production of documents implicating the executive branch’s deliberative processes.

Stay. First, the dissent pointed out that the Supreme Court had stayed the district court’s preliminary injunction in an earlier iteration of this proceeding, making “swift work of our poor judgment” in concluding that “the Government [was] likely to succeed on its argument that the Executive Order and [OMB-OPM] Memorandum are lawful[.]” Trump v. AFGE, 145 S. Ct. 2635, 2635 (2025).

Although the Supreme Court did not opine on each agency’s individual RIF plan, observed the dissent, it also did not “bless wholesale judicial intervention in particular agency’s RIFs either.” This, argued the dissent, was a mistake on part of the Ninth Circuit panel.

Privileged documents? Next, the dissent contended that the Agency RIF and Reorganization Plans (ARRPs) in question were privileged predecisional, deliberative documents, noting that the majority had considered the idea that the internal plans were not even deliberative, “a truly extreme position.” Further, the dissent argued that the panel had relied on an “unbelievably narrow view of what’s deliberative.”

Strong showing of bad faith. In addition, the dissent asserted that the panel majority erred in viewing the deliberative process privilege overcome without any showing of bad faith or improper motive, a showing, the dissent argued, was necessary based on the Supreme Court’s holding in Department of Commerce v. New York, 588 U.S. 752 (2019). Even if the deliberative process privilege was overcome, continued the dissent, the panel majority erred “in not reigning in the district court’s overly broad discovery order.”

Response. Judge Fletcher, joined by Judge Rawlinson, believed that some of the arguments outlined in the dissent deserved an additional response. First, as to the Supreme Court’s stay of the district court’s preliminary injunction, the response noted that “the Court specifically left open the legality of the documents at issue in the petition before us.” Citing Justice Sotomayor’s concurrence wherein she noted that the Court’s stay “leaves the District Court free to consider those questions in the first instance.” Thus, the question before the panel was a necessary preliminary: whether the district court could look at the ARRPs in determining their legality. “The answer to that question is pretty obviously ‘yes,’” said the response.

Not predecisional. Addressing the dissent’s contention that the ARRPs in question were privileged, predecisional documents, the response asserted that there was a good reason to conclude that this was not the case. It is hard to argue that the ARRPs were predecisional when extensive reorganizations and RIFs were already underway, said the response.

Nevertheless, the response pointed out that the panel assumed in its order that at least some of the ARRPs were predecisional deliberative documents and that the privilege applied. However, the panel went on to state that, “So assuming, we agree with the district court’s conclusion that the privilege is overridden in the circumstances of this case.”

Warner test. Next, the response pointed out that the government had argued before the panel that the deliberative process privilege was not overcome and that mandamus was warranted, relying on the Ninth Circuit’s well-established, four-factor Warner test. FTC v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The panel’s order carefully considered the four Warner factors and concluded the privilege was overcome and mandamus was not warranted.

Department of Commerce. In disagreeing with this conclusion and arguing that a showing of bad faith or improper motive was necessary to overcome this privilege, the dissent relied on Department of Commerce. However, the response noted that the government never relied on—or even mentioned—this opinion in its briefing.

As to the dissent’s contention that bad faith or improper motive was a requirement, it took that language from the following paragraph in Department of Commerce: [W]e have recognized a narrow exception to the general rule against inquiring into “the mental processes of administrative decisionmakers.” On a “strong showing of bad faith or improper behavior,” such an inquiry may be warranted and may justify extra-record discovery.

As the opinion makes clear, asserted the response, this narrow exception addresses documents outside of the administrative record. The dissent overlooked the fact that the government successfully opposed producing an administrative record in the district court and thus the posture of the case makes Department of Commerce irrelevant, given there was no administrative record.

Exceptional standard. Finally, the response argued that the dissent failed to adequately account for the exceptional standard for granting mandamus. Absence of “clear error” is dispositive and fatal to a mandamus petition, explained the response. In this instance, the government agreed that Warner supplies the governing test for overcoming the asserted privilege and the district court had faithfully applied that test. Thus, there was no error in the district court’s application of Warner, a fact that the dissent had failed to address. Accordingly, the panel denied mandamus—and this court denied en banc rehearing—because the clear error standard was not met.

The case is Nos. 25-3293 and 25-4476.

Judge: Fletcher, W.

Attorneys: Alice Xiaohe Wang (Altshuler Berzon) for American Federation of Government Employees, AFL-CIO, American Federation of State, County & Municipal Employees, AFL-CIO, Service Employees International Union, American Federation Of Government Employees - Local 1122, American Federation Of Government Employees - Local 1236, American Federation of Government Employees - Local 2110, American Federation of Government Employees - Local 3172 and Service Employees International Union - Local 1000. Courtney Dixon, U.S. Department of Justice, for Donald J. Trump, U.S. Office of Management and Budget, Russell Vought, U.S. Office of Personnel Management and Charles Ezell.

Companies: American Federation of Government Employees, AFL-CIO; American Federation of State, County & Municipal Employees, AFL-CIO; Service Employees International Union; American Federation Of Government Employees - Local 1122; American Federation Of Government Employees - Local 1236; American Federation of Government Employees - Local 2110; American Federation of Government Employees - Local 3172; Service Employees International Union - Local 1000

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