The judges all agreed the case was extraordinary. They did not agree on whether a trial court could even look at the Trump administration’s confidential plans to shrink parts of the federal government.
At the center of the dispute is a discovery order in American Federation of Government Employees (AFGE) v. Trump. A district judge in California told the administration to privately share internal reorganization and layoff plans so the court could decide whether they were lawful. A divided Ninth Circuit panel refused to intervene. When the full court was asked to step in, Trump-appointed judges accused their colleagues of eroding the separation of powers.
The Lawsuit Behind the Discovery Fight
The case began when the AFGE union and other plaintiffs sued President Donald Trump and several federal agencies in the Northern District of California. Their complaint, filed in April, argues that the president cannot unilaterally “reorganize, downsize, or otherwise transform the agencies of the federal government, unless and until Congress authorizes such action” and that he tried to do so anyway through Executive Order 14210 and related directives to the Department of Government Efficiency (DOGE), the Office of Management and Budget (OMB), and the Office of Personnel Management (OPM). (Complaint)
According to the complaint and accompanying filings, the order and implementing documents required agencies to prepare “Agency Reduction in Force and Reorganization Plans” known as ARRPs. Those plans spelled out potential layoffs, office closures, and restructuring across 19 federal agencies. The plaintiffs, including federal workers who said their jobs were threatened, claimed the president had overstepped statutory limits by directing sweeping workforce changes without clear authorization from Congress. (Executive Order 14210)
A District Judge Demands the Plans
In May, Senior U.S. District Judge Susan Illston, a Clinton appointee, issued a preliminary injunction that temporarily blocked the planned layoffs and reorganizations. She also ordered the administration to provide the ARRPs to the court for in-chambers review. That kind of review is often described as in camera, meaning the judge sees the material privately rather than placing it on the public docket. (Preliminary injunction)
Judge Illston said the court needed to see the specific plans and the roles that OMB, OPM, and DOGE played to determine whether the challenged executive actions were lawful. In her words, “[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.” She added that deadlines and timelines in the plans “will be particularly useful to the Court as it determines whether further prompt action is necessary.”
The Department of Justice (DOJ) objected that these documents reflected core internal deliberations within the executive branch and should be protected by privilege. When Judge Illston maintained her order, DOJ turned to the Supreme Court.
Supreme Court Stays Discovery, But Not the Questions
In July, the Supreme Court granted an emergency application from the administration and stayed Judge Illston’s discovery order pending review in the Ninth Circuit. The stay put the disclosure of ARRPs on hold while the appeals court considered whether to step in. (Stay order)
According to the later description by the Ninth Circuit majority, the Supreme Court did not decide whether the ARRPs themselves were legal or whether the plans could ever be reviewed. The appellate judges quoted their own order recounting 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.'” They also cited Justice Sonia Sotomayor’s concurrence, which said the stay “leaves the District Court free to consider those questions in the first instance.”
That framing matters. It allowed the Ninth Circuit to separate the narrow question of discovery and in camera review from the larger fight over the president’s power to reorganize agencies.
Ninth Circuit Panel Backs Limited Discovery
In September, a three-judge panel of the Ninth Circuit issued a 2 1 decision denying DOJ’s petition for a writ of mandamus. A writ of mandamus is an extraordinary order that tells a lower court to correct what a higher court sees as a clear and serious error. The panel declined to issue that relief, which left Judge Illston’s discovery order intact, subject to the existing Supreme Court stay. (Panel opinion)
The majority, Judges William Fletcher and Johnnie Rawlinson, both Clinton appointees, emphasized the procedural posture. They wrote that the only question before them was whether the district court could look at the ARRPs at all while weighing their legality. “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,'” they concluded.
The panel also stressed how the district court had handled executive privilege concerns. The judges noted that “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.”
Dissatisfied, the Trump administration asked the full Ninth Circuit to rehear the dispute en banc. That request set the stage for the internal clash that followed.
En Banc Request Denied, Dissenters Sound Alarm
When the full Ninth Circuit declined to rehear the case, Judges Fletcher and Rawlinson said the brief order “speaks for itself” but still responded to colleagues who had filed dissents. They repeated that the Supreme Court had left room for the district court to evaluate the legality of the ARRPs and argued that their panel had done nothing more than allow a judge to see material central to that task.
Judge Patrick Bumatay, a Trump appointee, wrote a lengthy dissent from the denial, joined by fellow Trump-appointed Judges Lawrence VanDyke, Eric Tung, and Ryan Nelson, as well as George W. Bush appointee Consuelo Callahan. In their view, Judge Illston’s discovery order was a “clear error” that merited the extraordinary step of mandamus.
The dissent opened with a line aimed directly at the origins of the dispute: “This controversy began with a Sharpie,” Bumatay wrote, referring to the president’s signing of Executive Order 14210. From there, he argued that the district court had strayed into constitutionally forbidden territory by compelling disclosure of internal executive branch deliberations about workforce reductions.
Bumatay and his colleagues said the majority had “mangled the law” and failed to appreciate what they called a “constitutional pitfall.” At one point the dissent described the litigation strategy of the plaintiffs, who sought to block sweeping reorganizations through a pre-enforcement challenge, as a “Hail Mary pass” that the courts had turned into “a screen pass” and “an easy end run around” normal discovery limits in Administrative Procedure Act cases.
The heart of the dissent focused on separation of powers. Bumatay warned that allowing district courts to demand internal agency planning documents in this setting would “seriously degrade[] the separation of powers” by “opening the federal government’s internal deliberations to the whims of district courts opposed to presidential policies.” He closed with a statement of principle: “Our respect for the Constitution demands that we treat the internal deliberative documents of a coequal branch of government with appropriate care. We do not cavalierly intrude on those communications because we disfavor the government’s actions or believe it could have managed things differently.”
What The Ruling Changes, And What It Does Not
The Ninth Circuit’s refusal to rehear the case en banc leaves the earlier panel decision in place. That means DOJ does not get the mandamus order it sought, and Judge Illston’s in chambers discovery order formally survives. At the same time, the Supreme Court’s emergency stay continues to shape what can actually happen with the ARRPs until the high court indicates otherwise.
For now, the underlying lawsuit over Executive Order 14210 and the authority to order mass layoffs and reorganizations remains pending in the district court. The appeals to date have not resolved whether the president had statutory power to direct the ARRPs, whether specific plans violate federal law, or what long-term limits the Constitution places on judicial review of internal executive branch planning.
What the opinions do provide is a clear snapshot of competing views inside the federal courts. One group of judges sees controlled in camera review of internal plans as a routine step in testing the legality of major executive initiatives. Another sees it as a serious intrusion into a coequal branch. The next time a president orders sweeping bureaucratic changes and a court is asked to look behind the curtain, one of those visions is likely to be invoked again.
