The full 9th U.S. Circuit Court of Appeals has declined to rehear a panel decision that allows a lower court to review the Trump administration’s internal agency downsizing plans. The case will now continue in the district court, where discovery into the workforce reduction plans can proceed.
Background and Procedural History
The legal battle stems from President Trump’s Executive Order 14210, issued in February 2025, which directed federal agencies to “promptly undertake preparations to initiate large-scale reductions in force (RIFs).” In response, a coalition of federal employee unions and other groups filed suit, arguing the president lacks unilateral authority to order such sweeping reorganizations without congressional approval and that the actions violate the Administrative Procedure Act (APA).
The case has traveled through the federal court system since early last year. In May, a federal district court issued a preliminary injunction to halt the RIFs. However, the U.S. Supreme Court stayed that injunction in July, stating the government was likely to succeed on its argument that the Executive Order itself was lawful. The Supreme Court stay order explicitly left the door open for further judicial review of the specific agency plans developed under the order.
Following that guidance, a three-judge panel of the 9th Circuit in September vacated the preliminary injunction but denied the administration’s request for a writ of mandamus to block discovery of the plans, remanding the case to the district court. It was this September ruling that the administration asked the full circuit court to reconsider.
9th Circuit Upholds Discovery Order
In its January 5 order, the 9th Circuit stated that a majority of its non-recused active judges had not voted in favor of rehearing the case en banc. At the center of the dispute is the government’s refusal to produce its Agency RIF and Reorganization Plans (ARRPs), which the administration has argued are protected by the deliberative process privilege.
Judges William Fletcher and Johnnie Rawlinson, who formed the majority in the original panel, defended their decision. They stressed that the Supreme Court “specifically left open the legality of the documents at issue.”
They wrote that the necessary preliminary question was “whether the district court could look at the ARRPs in determining their legality.” Applying the established four-factor test from a 1984 case, FTC v. Warner Communications Inc. , the panel had concluded that even if the privilege applied, the plaintiffs’ need for the evidence overrode it. “The answer to that question is pretty obviously ‘yes,'” they stated.
The judges also rejected the government’s argument that discovery should be limited to an administrative record, noting that this case was not an “ordinary APA review” because “there has been no compilation of a conventional administrative record.”
Meanwhile, the discovery dispute has also continued at the district court level. In a separate order issued December 19, the district court instructed the administration to search for and produce communications about the RIF plans from high-level officials, including Office of Management and Budget Director Russell Vought and former Department of Government Efficiency head Elon Musk.
Dissent and Next Steps
Judge Patrick Bumatay, joined by four other judges in a dissenting opinion included in the order, argued that the panel majority “severely weakened the deliberative process privilege — a doctrine with deep common-law roots that protects the separation of powers.”
He wrote that the panel “mangled the law for ordering extra-record discovery and so expanded it to circumvent any limits on the production of internal government documents.” This, Bumatay warned, creates a “blueprint for making an end-run around the Administrative Procedure Act’s normal discovery rules” by allowing plaintiffs to “engage in fishing expeditions for any internal government documents so long as they add an ‘ultra vires’ claim to their APA complaint.”
His concerns were similar to those in a partial dissent from Judge Sandra Ikuta in the September 2025 panel decision, who had argued that compelling extra-record discovery required a “strong showing of bad faith” that was not met.
With the 9th Circuit’s denial of a rehearing, the case now returns to the district court to proceed with discovery and an initial determination of the legality of the specific agency workforce reduction plans.
For more on the Administrative Procedure Act and judicial review of agency actions, see Checkpoint’s Federal Tax Coordinator 2d ¶ U-4101.
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