Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—9th Cir.: Government’s mandamus petition denied, preliminary injunction of RIFs vacated and remanded, (Sep 22, 2025)

By Todd Harrison, J.D.

The government’s assertion that the deliberative process privilege applied to its Agency RIF and Reorganization Plans, even if true, was overcome by the circumstances in this case.

A divided Ninth Circuit panel rejected the government’s petition for a writ of mandamus that would require the district court to vacate a discovery order requiring in camera production of certain agency documents. Further, as to the appellees’ motion for remand of the government’s pending appeal of the district court’s preliminary injunction, the Ninth Circuit vacated the preliminary injunction and remanded to the district court, providing the lower court with the opportunity to consider, among other things, the impact of the Supreme Court’s recent decision in Trump v. Casa. In a partial dissent, Judge Ikuta contended 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 (American Federation of Government Employees, AFL-CIO v. Trump, No. 25-3293 (9th Cir. Sept. 19, 2025)).

On February 11, 2025, President Trump issued an executive order directing federal agencies to commence large-scale reductions in force. Shortly thereafter, an implementing memorandum from the Office of Management and Budget (OMB) and the Office of Personnel Management (OPM) directed multiple federal agencies to submit Agency RIF and Reorganization Plans (ARRPs) for review and approval by the OMB and the OPM.

Lawsuit. In the wake of sweeping reorganizations and cuts to agency personnel, the plaintiffs filed suit in a federal district court in California, alleging in seven claims that the ongoing efforts to reorganize and cut broad swaths of the federal government were contrary to law. The district court addressed four of those claims (Claims I, II, III, and V). Based on those claims, it issued a temporary restraining order against the government followed by a preliminary injunction. The district court did not address the merits of the three other claims, which remain pending in the district court.

Stay. Subsequently, the government appealed the grant of the preliminary injunction. A motions panel of the Ninth Circuit denied the government’s request. The government then obtained an emergency stay from the Supreme Court. The Court’s brief order noted that the government was “likely to succeed on its argument that the Executive Order and Memorandum are lawful,” but the Court expressly declined to express any view on “the legality of any Agency RIF and Reorganization Plan produced or approved pursuant to the Executive Order and Memorandum.”

In a separate concurrence, Justice Sotomayor wrote that she agreed with the Court’s stay because it left the district court free to consider the legality of the plans and their implementation in the first instance.

Discovery order. By the time the Supreme Court issued its stay order, discovery proceedings in the district court regarding the agency defendants’ ARRPs had already been under way for several months. The district court had ordered production of the ARRPs, explaining that their release would aid its review of the merits of the plaintiffs’ APA claims. The government moved for a protective order or for reconsideration based on an asserted claim of deliberative process privilege. Upon reconsideration, the district court on May 15 ordered the government to produce ARRPs from four agencies for in camera review in order to assess “whether the deliberative process privilege applies to the ARRPs of the federal agency defendants in this case.”

After reviewing the four ARRPs in camera, the district court determined on the existing record that the assertion of privilege was inadequately supported. The court then issued an order requiring in camera production of the ARRPs of all named agency defendants.

The government then sought mandamus before the Ninth Circuit, asking that it direct the district court to vacate its discovery order. The appellate court granted an administrative stay of the district court order pending its review of the mandamus petition. The plaintiffs then moved to remand the government’s appeal of the district court’s preliminary injunction. The court considered both issues here.

Deliberative process. First addressing the government’s petition for a writ of mandamus, the appellate court found no clear error on the part of the district court, a dispositive factor foreclosing the issuance of a writ. Nonetheless, the court addressed the government’s argument that the ARRPs were protected by the deliberative process privilege and that the privilege, if it exists, is not overcome by the interest in discovery. The court did not agree.

The court explained that a document must be both “predecisional” and “deliberative” for the privilege to apply. As the Ninth Circuit and others have long held, “undifferentiated declarations of perpetual non-finality are an inadequate basis for a claim of privilege,” said the court. The breadth of the ongoing agency reorganizations and RIFs at issue in this case, continued the court, undermined the government’s contention that the ARRPs are predecisional in a sense that precludes judicial review.

Further, the court found little evidence in the record to support the government’s assertion that the ARRPs were deliberative. All available evidence, including the four ARRPs reviewed thus far in camera, indicated that the ARRPs represented the considered position of the agency submitted for approval by OMB, and not the personal opinions of an individual.

Privilege overridden. Even assuming that at least some of the ARRPs were predecisional, deliberative documents to which the privilege applied, the court found that the privilege would be overridden in this instance. First, the ARRPs are “plainly relevant” to the very issue that the Supreme Court’s order had expressly left open—the legality of any agency RIF and reorganization plan produced pursuant to the executive order or agency memorandum.

Further, 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 was unlikely that the disclosure would hinder frank and independent discussion regarding contemplated policies and actions. As to the government’s suggestion that production would have a chilling effect on internal Executive Branch deliberations, the court found no evidentiary support for such a claim, noting that the government had made no showing of harm resulting from the four ARRPs already reviewed in camera.

Ultra vires. Next, the court considered the government’s claim of privilege as a presumption that judicial review of agency action under the Administrative Procedure Act (APA) is ordinarily limited to the administrative record. The court was unmoved, noting that the plaintiffs challenged the approval and implementation of the ARRPs not merely under the APA, but also as exceeding lawful authority and therefore ultra vires. “Review of an ultra vires challenge would not be limited to an administrative record,” said the court.

No ordinary APA review. In addition, the court observed that this case did not come before it in the posture of an ordinary APA review. There was no compilation of a conventional administrative record, no notice-and-comment rulemaking, and no issuance of a final rule or adjudication. Instead, massive RIFs and reorganizations have “been carried out without anything resembling the normal rulemaking or adjudicatory processes that typically produce a conventional administrative record,” explained the court.

Given this case’s current posture, the court here found no reason to insist “that the district court remain ignorant of documents that may or may not eventually be included in an administrative record.” Accordingly, the court denied the government’s petition for mandamus.

Motion to remand. Turning to the motion to remand, the court noted several developments that had occurred since the district court’s issuance of the preliminary injunction in May, including the Supreme Court’s stay of the injunction pending appeal; the Supreme Court’s decision in Trump v. Casa ; ongoing agency reorganizations since the district court issued its injunction; the continuing pendency of claims IV, VI and VII in the district court; and the decision today denying a writ of mandamus.

Taking all of these factors into account, the Ninth Circuit concluded that it would serve judicial economy for the district court to assess in the first instance the impact of these developments. As such, the court vacated and remanded for further proceedings.

Partial dissent. In a partial dissent, Judge Ikuta would have found that the district court committed clear error in ordering the production of documents implicating the executive branch’s deliberative processes, and because the district court’s production order was clearly erroneous as a matter of law, and finding that the other mandamus factors also favored the government, Judge Ikuta would have granted mandamus relief.

The case is No. 25-3293.

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 and American Federation of Government Employees - Local 1122. Courtney Dixon, U.S. Department of Justice, for Donald J. Trump, U.S. Office of Management and Budget, Russell Vought, Charles Ezell and U.S. Department of Government Efficiency.

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

MainStory: TopStory RemediesDamages Procedure PublicEmployees Layoffs AgencyNews AlaskaNews ArizonaNews CaliforniaNews HawaiiNews IdahoNews MontanaNews NevadaNews OregonNews WashingtonNews GCNNews