Ninth Circuit won't rehear Trump admin challenge to discovery order in mass layoffs suit

(CN) — The Ninth Circuit Court of Appeals, on Monday, declined to rehear a challenge by the Trump administration to a discovery order in a case filed by federal labor unions to block the executive branch from initiating mass layoffs.

The terse ruling spurred a blistering dissent from five judges — all Republican, four of whom had been appointed by President Donald Trump.

“The Ninth Circuit has mishandled this case from the start,” wrote U.S. Circuit Judge Patrick Bumatay, a Trump appointee, in the dissent, adding that the order “seriously degrades the separation of powers — opening the federal government’s internal deliberations to the whims of district courts opposed to presidential policies.”

The case took a trip to the U.S. Supreme Court, which ultimately reinstated February’s Executive Order 14210. The order directed agency heads to “undertake preparations to initiate large-scale reductions in force (RIFs), consistent with applicable law” — directing most departments via the Office of Personnel Management and Office of Management and Budget to slash the workforce and shrink the federal government.

The Supreme Court decision meant a discovery order — which directed the federal government to produce the plans for reorganization and layoffs produced by a slew of agencies, including Homeland Security, Housing and Urban Development, Justice, Interior and Parks, among others — remained live.

The Trump administration asked the Ninth Circuit to block the discovery order, but a three-judge panel declined.

The administration asked for en banc review of that denial; on Monday, that, too, was rejected, citing a lower court’s preliminary injunction.

“The question before our panel was a necessary preliminary: whether the district court could look at the [reorganization and layoff plans] in determining their legality. The answer to that question is pretty obviously ‘yes,’” U.S Circuit Judge William Fletcher, a Bill Clinton appointee, wrote for the majority opinion.

“We denied mandamus — and this court appropriately denied en banc rehearing—because the clear error standard was not met,” Fletcher said.

In response to the argument that the reorganization plans were “deliberative documents,” Fletcher determined, “There is good reason to conclude that they are not,” noting that the reorganization was already underway.

The five dissenting justices called this “a truly extreme position” that “relied on an unbelievably narrow view of what’s deliberative.”

The case now bounces back to federal court. It is unclear whether the Supreme Court will take up the issue of discovery. Neither sets of lawyers immediately responded to a request for comment on Monday’s ruling.

A bevy of federal labor unions and advocacy sued to block the order in April, arguing “The president does not possess authority to reorganize, downsize, or otherwise transform the agencies of the federal government, unless and until Congress authorizes such action.”

U.S. District Judge Susan Illston agreed, and issued a preliminary injunction, blocking Trump’s executive order.

“The president has the authority to seek changes to executive branch agencies, but he must do so in lawful ways and, in the case of large-scale reorganizations, with the cooperation of the legislative branch,” Illston, a Bill Clinton appointee, wrote then. “Nothing prevents the president from requesting this cooperation — as he did in his prior term of office.”

In July, the U.S. Supreme Court stepped in and blocked Illston’s order, reasoning that the order was likely lawful. In a concurring opinion, Justice Sonia Sotomayor, a Barack Obama appointee, noted that the executive order was simply an order to draw up plans to reduce workforce — plans that were “consistent with applicable law.”

“The plans themselves are not before this court, at this stage, and we thus have no occasion to consider whether they can and will be carried out consistent with the constraints of law,” Sotomayor wrote then.

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