President Donald Trump attends a joint news conference with Ukraine”s President Volodymyr Zelenskyy following a meeting at Trump’s Mar-a-Lago club, Sunday, Dec. 28, 2025, in Palm Beach, Fla. (AP Photo/Alex Brandon). Inset: U.S. Circuit Judge Patrick Bumatay (9th U.S. Circuit Court of Appeals).
Several conservative judges on the 9th U.S. Circuit Court of Appeals dissented in no uncertain terms as the majority declined to order a full panel rehearing of a discovery order the DOJ framed as a judicial attack on the separation of powers.
The 9th Circuit’s en banc denial on Monday left in place a three-judge panel’s decision insofar as it permitted a district judge’s discovery order for in-chambers review of internal Trump administration documents about plans for mass layoffs or agency reductions in force and reorganization plans (ARRPs) across 19 federal government agencies.
The lawsuit, American Federation of Government Employees (AFGE) v. Trump, was filed in April, claiming President Donald Trump did not have the power to “reorganize, downsize, or otherwise transform the agencies of the federal government, unless and until Congress authorizes such action,” let alone through executive order 14210 and the Department of Government Efficiency (DOGE), the Office of Management and Budget (OMB), and the Office of Personnel Management (OPM).
In May, Senior U.S. District Judge Susan Yvonne Illston, a Bill Clinton appointee, issued a preliminary injunction blocking the layoffs and also compelling the administration to produce discovery of reduction in force plans to the court.
“[S]ince the Court requires more information to evaluate the individual ARRPs and what roles OMB, OPM, and DOGE have played in shaping them, it will order their disclosure under the Court’s inherent powers to manage discovery,” Illston wrote. “The Court finds it appropriate to order this production on an expedited discovery basis. The timelines required to be in the ARRPs will be particularly useful to the Court as it determines whether further prompt action is necessary.”
Unsurprisingly, the DOJ appealed, and the U.S. Supreme Court went on to stay the order on an emergency basis in July pending the outcome at the 9th Circuit.
In September, a three-judge panel on the 9th Circuit in a 2-1 decision refused to issue the “extraordinary” relief of a writ of mandamus, leaving untouched Illston’s “discovery order requiring in camera production of certain agency documents.” The majority called attention to the “care” with which the lower court handled the Trump administration’s privilege claims.
“By the time the Supreme Court issued its stay order, discovery proceedings in the district court regarding agency defendants’ ARRPs had already been under way for several months,” the panel said. “The chronology of those proceedings reflects the care with which the district court has dealt with this case, and the ‘careful consideration’ it has afforded to the government’s assertion of privilege and attendant separation of powers concerns.”
The Trump administration would not let that stand, asking the 9th Circuit to rehear the issue en banc.
On Monday, the 9th Circuit declined to do so, but not without some fireworks.
Although the denial “speaks for itself,” wrote Senior U.S. Circuit Judge William A. Fletcher and U.S. Circuit Judge Johnnie B. Rawlinson, both Bill Clinton appointees who formed the prior panel’s majority, the jurists saw fit to respond to the dissenters by first calling attention to how the U.S. Supreme Court handled the case when it issued its stay.
“Our colleague omits to mention that the Court specifically left open the legality of the documents at issue in the petition before us. We wrote in our order that the Court ‘expressly declined to express any view on ‘the legality of any Agency RIF and Reorganization Plan [ARRP] produced or approved pursuant to the Executive Order and Memorandum,'” the majority stated. “As Justice Sotomayor noted in concurrence, the Supreme Court’s stay ‘leaves the District Court free to consider those questions in the first instance.'”
“The question before our 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,'” concluded Fletcher and Rawlinson.
The dissent penned by U.S. Circuit Judge Patrick Bumatay, a Trump appointee, went off on the majority for declining order a rehearing that could force Illston to rectify her “clear error” through mandamus relief.
Bumatay, joined by fellow Trump-appointed U.S. Circuit Judges Lawrence VanDyke, Eric Tung and Ryan Nelson, plus George W. Bush appointee Consuelo Callahan, wrote that the Trump administration was right to assert that Illston overstepped and, in doing so, offended the separation of powers.
“This controversy began with a Sharpie,” the dissent began, alluding to Trump’s signing of his challenged executive order.
From here, the dissenters said, the majority stood idly by, ignored the “constitutional pitfall” of Illston’s making, “mangled the law,” and refused to “correct” multiple errors.
“The district court believed only agencies—acting independent of the President—could consider implementing RIFs. Of course, this ignores that only the President is vested with the Executive Power,” said the dissent, before sharply upbraiding the majority for doing nothing about an “error” that “seriously degrades the separation of powers” by “opening the federal government’s internal deliberations to the whims of district courts opposed to presidential policies.”
Drawing a football analogy, Bumatay added that the lower court and 9th Circuit had transformed the plaintiffs’ “Hail Mary pass into a screen pass” and signed off on “an easy end-run around” the Administrative Procedure Act’s “ordinary discovery limits.”
“Our respect for the Constitution demands that we treat the internal deliberative documents of a co-equal branch of government with appropriate care. We don’t cavalierly intrude on those communications because we disfavor the governments actions or believe it could have managed things differently,” the dissent ended.
