Ninth Circuit orders feds to turn over workforce purge documents

SAN FRANCISCO (CN) — A panel of Ninth Circuit judges affirmed a lower court decision Friday compelling the government to turn over documents related to the White House’s plans to fire thousands of federal workers.

The three-judge panel, ruling 2-1, declined to vacate the lower court’s discovery order requiring the government to produce certain documents.

“We nowhere find clear error by the district court nor a clear entitlement to relief on the part of the government,” U.S. Circuit Judge William Fletcher, Bill Clinton appointee, wrote for the majority.

“Our denial of mandamus accords with the longstanding presumption that district courts have broad latitude to control discovery matters. Far from abusing its discretion, the district court has exercised care and restraint in managing discovery, affording ‘careful consideration’ to the government’s assertion of privilege.”

The panel also unanimously granted the plaintiffs’ request to return the case to federal court due to developments in the case since the preliminary injunction was issued in May, including multiple Supreme Court decisions and ongoing agency reorganization.

Elena Goldstein, an attorney for the plaintiffs from the D.C.-based Democracy Forward Foundation, said the Ninth Circuit’s decision is “an important victory for transparency and accountability.”

“The Trump-Vance administration tried to hide its sweeping plans to dismiss civil servants and dismantle the programs Americans depend on. The court made it clear that these documents — and the truth about what the administration is doing — are essential to this case,” she said.

A representative for the Department of Justice declined to comment.

A coalition of cities and a Texas county, along with organized labor groups and nonprofits, sued the government in April claiming that President Donald Trump had violated the Constitution via executive order by taking for himself the legislative power of Congress to recreate federal agencies in the manner he sees fit. The executive order calls for thousands of workers to be fired at federal agencies, the plaintiffs say.

On July 18, U.S. District Court Judge Susan Illston, a Clinton appointee, ordered the government to disclose its Agency Reduction-in-force and Reorganization Plans — together known as ARRPs — submitted to the Office of Management and Budget and the Office of Personnel Management, as well as the versions approved by the two agencies.

Shortly after, the government appealed the order to the Ninth Circuit, arguing that the disclosure of the documents would cause irreparable harm and that they are covered by the deliberative process privilege, as the documents are predecisional and deliberative.

However, the panel found that there are “good reasons” to conclude that deliberative process privilege does not apply to the reorganization plans.

The panel also rejected the government’s claim that judicial review should be confined to an administrative record that does not include the reorganization plans.

Fletcher wrote that the case is not “ordinary” as there is no conventional administration record, notice-and-comment period or final rule issued.

“Instead, massive RIFs and reorganizations have been carried out without anything resembling the normal rulemaking or adjudicatory processes that typically produce a conventional administrative record,” he said.

In August, the plaintiffs filed a motion to return the case to federal court to allow it to consider new developments in the case. The government argued that it was entitled to an appeal after a preliminary injunction, which Illston issued in May.

The panel rejected that argument, finding that remanding the case will allow the lower court to consider the Supreme Court’s stay of the injunction and government actions dismissing employees since then.

Returning the case would not cause the government significant harm, the panel noted, as it is still allowed to terminate employees as the federal court considers the case.

U.S. Circuit Judge Sandra Ikuta dissented from the majority ruling, writing that predecisional, deliberative documents are protected by the deliberative process privilege.

The George W. Bush appointee added that the lower court “clearly exceeded the scope of its authority” and “clearly erred by failing to address separation of powers concerns.”

“These departures from settled principles establish that the district court’s production order is clearly erroneous as a matter of law,” she wrote. “To conclude otherwise, the majority assumes that the ARRPs are final agency actions and then characterizes the issues involved as ordinary ‘discovery matters.’ Therefore, I respectfully dissent from the denial of the government’s petition for a writ of mandamus.”

Fletcher, in response to Ikuta’s dissent, wrote: “If there have been ‘departures from settled principles’ in this case, they consist in the sweep of actions undertaken by the government without ordinary processes — actions which the government now seeks to shield from scrutiny by invoking presumptions ordinarily attendant upon the very processes it has ignored.”

U.S. Circuit Judge Johnnie Rawlinson, a fellow Clinton appointee, joined Fletcher and Ikuta on the panel.

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