In a case in which the American Federation of Government Employees, AFL–CIO and others challenge President Trump’s Executive Order 14210 directing federal agencies to commence large-scale reductions in force (“RIFs”), the panel denied a petition for panel rehearing or en banc rehearing of the panel’s decision (1) denying the government parties’ petition for a writ of mandamus challenging the district court’s discovery order requiring in camera production of the Agency RIF and Reorganization Plans of all named agency defendants, (2) vacating the district court’s preliminary injunction, and (3) remanding to the district court.

Respecting the denial of rehearing en banc, Judge W. Fletcher and Judge Rawlinson responded to the dissent from the denial of rehearing en banc. First, although the Supreme Court had stayed the district court’s preliminary injunction in an earlier iteration of this case, the Court specifically left open the legality of the documents at issue. Second, the panel assumed that the privilege for predecisional deliberative documents applied to the Agency RIF and Reorganization Plans in question but agreed with the district court’s conclusion that the privilege was overridden in the circumstances of this case. Third, the panel carefully considered the well-established four-factor test set forth in FTC v. Warner Commc’ns Inc., 742 F.2d 1156 (9th Cir. 1984), in determining that the deliberative process privilege was overcome and that mandamus was not warranted. Fourth, the strong showing of a bad faith required for discovery of documents outside the administrative record was irrelevant because in this case there was no administrative record. Finally, the dissent fails to adequately account for the exceptional standard for granting mandamus.

Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Callahan, R. Nelson, VanDyke and Tung, wrote that, in denying the mandamus petition, the panel made three errors that needed correction by our en banc court. First, the panel majority flirted with the idea that the government’s internal RIF Plans were not even deliberative—a truly extreme position. It wrongly suggested that the government’s internal RIF Plans are not predecisional, deliberative materials. Second, and more importantly, the panel majority severely weakened the deliberative process privilege—a doctrine with deep common-law roots that protects the separation of powers. It failed to adequately address the separation-of-powers concerns in ordering the discovery of intra-executive branch documents. Third, the panel majority created a blueprint for making an end-run around the Administrative Procedure Act’s normal discovery rules. It mangled the law for ordering extra-record discovery and so expanded it to circumvent any limits on the production of internal government documents.

https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/05/25-3293.pdf