FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 19 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
AMERICAN FEDERATION OF No. 25-3293 GOVERNMENT EMPLOYEES, AFL-CIO; D.C. No. 3:25-cv-03698-SI AMERICAN FEDERATION OF STATE, Northern District of California, COUNTY & MUNICIPAL EMPLOYEES, San Francisco AFL-CIO; SERVICE EMPLOYEES INTERNATIONAL UNION; AMERICAN ORDER FEDERATION OF GOVERNMENT EMPLOYEES - LOCAL 1122; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES - LOCAL 1236; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES - LOCAL 2110; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES - LOCAL 3172; SERVICE EMPLOYEES INTERNATIONAL UNION - LOCAL 1000; ALLIANCE FOR RETIRED AMERICANS; AMERICAN GEOPHYSICAL UNION; AMERICAN PUBLIC HEALTH ASSOCIATION; CENTER FOR TAXPAYER RIGHTS; COALITION TO PROTECT AMERICA'S NATIONAL PARKS; COMMON DEFENSE CIVIC ENGAGEMENT; MAIN STREET ALLIANCE; NATURAL RESOURCES DEFENSE COUNCIL, INC.; NORTHEAST ORGANIC FARMING ASSOCIATION, INC.; VOTEVETS ACTION FUND, INC.; WESTERN WATERSHEDS PROJECT; COUNTY OF SANTA CLARA; CITY OF CHICAGO; COUNTY OF MARTIN LUTHER KING, JR.,; COUNTY OF HARRIS; CITY OF BALTIMORE; CITY AND COUNTY OF SAN FRANCISCO,
Plaintiffs - Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES OFFICE OF MANAGEMENT AND BUDGET; RUSSELL VOUGHT, in his official capacity as Director of U.S. Office of Management and Budget; UNITED STATES OFFICE OF PERSONNEL MANAGEMENT; CHARLES EZELL, in his official capacity as Acting Director of the U.S. Office of Personnel Management; UNITED STATES DEPARTMENT OF GOVERNMENT EFFICIENCY; ELON MUSK, in his official capacity as the actual head of the Department of Government Efficiency; AMY GLEASON, in her official capacity as the titular Acting Administrator of the Department of Government Efficiency; UNITED STATES DEPARTMENT OF AGRICULTURE; BROOKE ROLLINS, in her official capacity as Secretary of the U.S. Department of Agriculture; UNITED STATES DEPARTMENT OF COMMERCE; HOWARD LUTNICK, in his official capacity as Secretary of the U.S. Department of Commerce; UNITED STATES DEPARTMENT OF DEFENSE; PETER HEGSETH, in his official capacity as Secretary of the U.S. Department of Defense; UNITED STATES DEPARTMENT OF ENERGY; CHRIS
2 25-4476 WRIGHT, in his official capacity as Secretary of the U.S. Department of Energy; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; ROBERT F. KENNEDY, Jr., in his official capacity as Secretary of the U.S. Department of Health and Human Services; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; KRISTI NOEM, in her official capacity as Secretary of the U.S. Department of Homeland Security; UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; SCOTT TURNER, in his official capacity as Secretary of the U.S. Department of Housing and Urban Development; DOJ - UNITED STATES DEPARTMENT OF JUSTICE; PAMELA BONDI, Attorney General, in her official capacity as Attorney General of the U.S. Department of Justice; UNITED STATES DEPARTMENT OF THE INTERIOR; DOUG BURGUM, in his official capacity as Secretary of the U.S. Department of the Interior; UNITED STATES DEPARTMENT OF LABOR; LORI CHAVEZ-DEREMER, in her official capacity as Secretary of the U.S. Department of Labor; UNITED STATES DEPARTMENT OF STATE; MARCO RUBIO, in his official capacity as Secretary of the U.S. Department of State; UNITED STATES DEPARTMENT OF THE TREASURY; SCOTT BESSENT, in his official capacity as Secretary of U.S. Department of Treasury; UNITED STATES DEPARTMENT OF TRANSPORTATION; SEAN DUFFY, in his official capacity as Secretary for the U.S. Department of Transportation; UNITED STATES
3 25-4476 DEPARTMENT OF VETERANS AFFAIRS; DOUG COLLINS, in his official capacity as Secretary of Veterans Affairs; AMERICORPS; JENNIFER BASTRESS TAHMASEBI, in her official capacity as Interim Agency Head of AmeriCorps; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; LEE ZELDIN, in his official capacity as Administrator of U.S. Environmental Protection Agency; UNITED STATES GENERAL SERVICES ADMINISTRATION; STEPHEN EHIKIAN, in his official capacity as Acting Administrator for U.S. General Services Administration; NATIONAL LABOR RELATIONS BOARD; MARVIN E. KAPLAN, in his official capacity as Chairman of the National Labor Relations Board; WILLIAM COWEN, in his official capacity as the Acting General Counsel of the National Labor Relations Board; NATIONAL SCIENCE FOUNDATION; BRIAN STONE, in his official capacity as Acting Director of the National Science Foundation; UNITED STATES SMALL BUSINESS ADMINISTRATION; KELLY LOEFFLER, in her official capacity as Administrator of the U.S. Small Business Administration; SOCIAL SECURITY ADMINISTRATION; FRANK BISIGNANO, Commissioner of Social Security, in his official capacity as Commissioner of the U.S. Social Security Administration,
Defendants - Appellants.
4 25-4476 IN Re DONALD J. TRUMP No. 25-4476 ___________________________ D.C. No. 3:25-cv-03698-SI Northern District of California, DONALD J. TRUMP; UNITED STATES San Francisco OFFICE OF MANAGEMENT AND BUDGET; RUSSELL VOUGHT; UNITED ORDER STATES OFFICE OF PERSONNEL MANAGEMENT; CHARLES EZELL; UNITED STATES DEPARTMENT OF GOVERNMENT EFFICIENCY; ELON MUSK; AMY GLEASON; UNITED STATES DEPARTMENT OF AGRICULTURE; BROOKE ROLLINS; UNITED STATES DEPARTMENT OF COMMERCE; HOWARD LUTNICK; UNITED STATES DEPARTMENT OF DEFENSE; PETER HEGSETH; UNITED STATES DEPARTMENT OF ENERGY; CHRIS WRIGHT; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; ROBERT F. KENNEDY, Jr.; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; KRISTI NOEM; UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; SCOTT TURNER; DOJ - UNITED STATES DEPARTMENT OF JUSTICE; PAMELA BONDI, Attorney General; UNITED STATES DEPARTMENT OF THE INTERIOR; DOUG BURGUM; UNITED STATES DEPARTMENT OF LABOR; LORI CHAVEZ-DEREMER; UNITED STATES DEPARTMENT OF STATE; MARCO RUBIO; UNITED STATES DEPARTMENT OF THE TREASURY; SCOTT BESSENT; UNITED STATES DEPARTMENT OF TRANSPORTATION; SEAN DUFFY; UNITED STATES
5 25-4476 DEPARTMENT OF VETERANS AFFAIRS; DOUG COLLINS; AMERICORPS; JENNIFER BASTRESS TAHMASEBI; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; LEE ZELDIN; UNITED STATES GENERAL SERVICES ADMINISTRATION; STEPHEN EHIKIAN; NATIONAL LABOR RELATIONS BOARD; MARVIN E. KAPLAN; WILLIAM COWEN; NATIONAL SCIENCE FOUNDATION; BRIAN STONE; UNITED STATES SMALL BUSINESS ADMINISTRATION; KELLY LOEFFLER; SOCIAL SECURITY ADMINISTRATION; FRANK BISIGNANO, Commissioner of Social Security,
Petitioners,
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO,
Respondent,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO; AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES, AFL-CIO; SERVICE EMPLOYEES INTERNATIONAL UNION; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES - LOCAL 1122; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES - LOCAL 1236; AMERICAN FEDERATION OF
6 25-4476 GOVERNMENT EMPLOYEES - LOCAL 2110; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES - LOCAL 3172; SERVICE EMPLOYEES INTERNATIONAL UNION - LOCAL 1000; ALLIANCE FOR RETIRED AMERICANS; AMERICAN GEOPHYSICAL UNION; AMERICAN PUBLIC HEALTH ASSOCIATION; CENTER FOR TAXPAYER RIGHTS; COALITION TO PROTECT AMERICA'S NATIONAL PARKS; COMMON DEFENSE CIVIC ENGAGEMENT; MAIN STREET ALLIANCE; NATURAL RESOURCES DEFENSE COUNCIL, INC.; NORTHEAST ORGANIC FARMING ASSOCIATION, INC.; VOTEVETS ACTION FUND, INC.; WESTERN WATERSHEDS PROJECT; COUNTY OF SANTA CLARA; CITY OF CHICAGO; COUNTY OF MARTIN LUTHER KING, JR.,; COUNTY OF HARRIS; CITY OF BALTIMORE; CITY AND COUNTY OF SAN FRANCISCO,
Real Parties in Interest.
Before: William A. Fletcher, Johnnie B. Rawlinson, and Sandra S. Ikuta, Circuit Judges
ORDER
W. FLETCHER, Circuit Judge:
On July 21, 2025, the government parties, defendants in the district court,
petitioned for a writ of mandamus that would require the district court to vacate a
discovery order requiring in camera production of certain agency documents.
7 25-4476 Trump v. United States District Court for the Northern District of California, No.
25-4476. On August 5, 2025, American Federation of Government Employees,
AFL–CIO et al., plaintiffs in the district court and appellees in this court, moved
for remand of the government parties’ pending appeal of the district court’s
preliminary injunction. American Federation of Government Employees v. Trump,
No. 25-3293.
We deny the petition for mandamus, and we vacate the district court’s
preliminary injunction and remand to the district court.
I. Background
On February 11, 2025, President Trump signed Executive Order 14210,
directing federal agencies to commence large-scale reductions in force (“RIFs”) as
part of what the Executive Order characterized as a “critical transformation of the
Federal bureaucracy.” 90 Fed. Reg. 9669 (Feb. 11, 2025). Shortly thereafter, an
implementing memorandum (“Memorandum”) from the Office of Management
and Budget (“OMB”) and the Office of Personnel Management (“OPM”) directed
multiple federal agencies to submit Agency RIF and Reorganization Plans
(“ARRPs”) for review and approval by OMB and OPM.
Sweeping reorganizations and cuts to agency personnel swiftly followed.
See AFGE v. Trump, 139 F.4th 1020, 1028, 1035 (9th Cir. 2025) (noting sweeping
8 25-4476 cuts underway at, inter alia, Social Security Administration, Environmental
Protection Agency, Department of Labor, General Services Administration, and
Department of Housing and Urban Development); AFGE v. Trump, No. 25-CV-
03698, ---- F.Supp.3d ----, 2025 WL 1482511, at *1 n.1, *5 (N.D. Cal. May 22,
2025) (same at, inter alia, Department of Health and Human Services,
AmeriCorps, and Small Business Administration). Plaintiffs filed suit in the
District Court for the Northern District of California, alleging in seven claims that
the ongoing efforts to reorganize and cut broad swaths of the federal government
were contrary to law. Dist. Ct. Dkt. No. 1 (complaint); Dist. Ct. Dkt. No. 100
(amended complaint). The district court addressed four of the seven claims
(Claims I, II, III, and V). Based on those claims, it issued a temporary restraining
order (“TRO”) against the government defendants (“the government”) on May 9,
Dist. Ct. Dkt. No. 85, and a preliminary injunction on May 22. Dist Ct. Dkt. No.
124. The district court did not address the merits of the three other claims (Claims
IV, VI, and VII), which remain pending in the district court.
The government appealed the grant of the preliminary injunction. A
motions panel of this court denied the government’s request for an emergency stay
of the injunction. AFGE, 139 F.4th at 1029. The government then obtained an
emergency stay from the Supreme Court. Trump v. AFGE, 145 S. Ct. 2635, 2635
(2025). The Court’s brief order noted that the government was “likely to succeed
9 25-4476 on its argument that the Executive Order and Memorandum are lawful,” but the
Court expressly declined to express any view on “the legality of any Agency RIF
and Reorganization Plan produced or approved pursuant to the Executive Order
and Memorandum.” Id. The Court noted that the district court had “enjoined
further implementation or approval of the plans based on its view about the
illegality of the Executive Order and Memorandum, not on any assessment of the
plans themselves.” Id. Justice Sotomayor wrote in a separate concurrence that she
agreed with the Court’s stay because it left the district court free to consider the
legality of the plans and their implementation in the first instance. Id. (Sotomayor,
J., concurring).
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 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. Karnoski v. Trump, 926 F.3d 1180, 1207
(9th Cir. 2019) (per curiam). The district court first ordered production of ARRPs
on May 9, explaining that “the release of the ARRPs will significantly aid the
Court’s review of the merits of these APA claims.” Dist. Ct. Dkt. No. 85 at 37.
After the government moved for a protective order or for reconsideration based on
10 25-4476 an asserted claim of deliberative process privilege, Dist. Ct. Dkt. No. 88, the
district court stayed the production deadline to allow evaluation of the asserted
privilege. Dist. Ct. Dkt. No. 92. Upon reconsideration, the district court on May
15 ordered the government to produce ARRPs from four agencies for in camera
review in order to assess “whether the deliberative process privilege applies to the
ARRPs of the federal agency defendants in this case.” Dist. Ct. Dkt. No. 109, at 4.
After reviewing the four ARRPs in camera, the district court determined on
the existing record that the assertion of privilege was inadequately supported. The
court gave the government an opportunity to submit further declarations from the
four agencies whose ARRPs it had reviewed. Dist. Ct. Dkt. No. 139. The
government filed declarations under seal on June 13. Dist. Ct. Dkt. No. 165.
On July 18, the district court issued the discovery order at issue in the
mandamus petition now before us. That order required in camera production of
the ARRPs of all named agency defendants. Dist. Ct. Dkt. No. 214. On July 21,
the government sought mandamus in our court, asking that we direct the district
court to vacate its discovery order. We granted an administrative stay of the
district court order pending our review of the mandamus petition.
On August 5, plaintiffs moved to remand the government’s appeal of the
district court’s preliminary injunction.
11 25-4476 We held oral argument on the mandamus petition and the remand request on
August 21. For the reasons explained below, we deny the government’s
mandamus petition and grant plaintiffs’ motion to remand to the district court.
II. Mandamus Petition
Mandamus “is a drastic and extraordinary remedy reserved for really
extraordinary causes.” In re Bundy, 840 F.3d 1034, 1040 (9th Cir. 2016) (quoting
Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004)); see also In re S. Bay United
Pentecostal Church, 992 F.3d 945, 949 (9th Cir. 2021); In re U.S., 791 F.3d 945,
954 (9th Cir. 2015). In Cheney, the Supreme Court cautioned that because “the
writ is one of the most potent weapons in the judicial arsenal,” it may issue only
when the petitioner has no other adequate means to attain relief, and when
petitioner demonstrates that the right to the writ is “clear and indisputable.” 542
U.S. at 380–81 (cleaned up). Even where those prerequisites are met, “the issuing
court, in the exercise of its discretion, must be satisfied that the writ is appropriate
under the circumstances.” Id. at 381.
In keeping with the high bar set by Cheney, our circuit applies a five-factor
test in assessing petitions for mandamus. See Bauman v. U.S. Dist. Ct., 557 F.2d
650, 654–55 (9th Cir. 1977); Karnoski v. Trump, 926 F.3d 1180, 1203 (9th Cir.
2019). We have long held that the absence of the third factor, clear error, is
dispositive; in the absence of clear error, the writ cannot be granted. In re S. Bay,
12 25-4476 992 F.3d at 949; In re U.S., 791 F.3d at 955; In re Bundy, 840 F.3d at 1041. The
bar for clear error is high: “The clear error standard is significantly deferential and
is not met unless the reviewing court is left with a ‘definite and firm conviction
that a mistake has been committed.’” In re Bundy, 840 F.3d at 1041 (quoting In re
U.S., 791 F.3d at 955). Where there is “no prior Ninth Circuit authority [that]
prohibited the course taken by the District Court, its ruling is not clearly
erroneous.” In re Morgan, 506 F.3d 705, 713 (9th Cir. 2007). Even when the
above factors are met, mandamus remains “at bottom discretionary.” In re U.S.,
895 F.3d 1101, 1104 (9th Cir. 2018). We find no clear error.
The government makes three primary arguments in favor of the writ: first,
that the ARRPs are protected by the deliberative process privilege; second, that the
privilege, if it exists here, is not overcome by the interest in discovery in this case;
and third, that judicial review ought to be confined to an administrative record
which, they assert, does not include the ARRPs. We address these arguments in
turn.
The first two arguments are linked, and we consider them together. There
are good reasons to conclude that the deliberative process privilege does not apply
to the ARRPs. However, like the district court, we conclude that it is unnecessary
to decide that question since we find no clear error in the district court’s
13 25-4476 determination that the privilege, even if applicable, is overcome in the
circumstances of this case.
A document must be both “predecisional” and “deliberative” for the
deliberative process privilege to apply. FTC v. Warner Commc’ns Inc., 742 F.2d
1156, 1161 (9th Cir. 1984) (citing Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854 (D.C. Cir. 1980)).
The government claims that the ARRPs are predecisional, echoing OMB’s
blanket statement that “[n]o ARRP is ever ‘final.’” Dist. Ct. Dkt. No. 88-1 at 2;
Pet. 12 (“A Plan is never final . . . .”). But as our circuit and others have long held,
undifferentiated declarations of perpetual non-finality are an inadequate basis for a
claim of privilege. “Any memorandum always will be ‘predecisional’ if
referenced to a decision that possibly may be made at some undisclosed time in the
future.” Assembly of State of Cal. v. Dep’t of Commerce, 968 F.2d 916, 921 (9th
Cir. 1992); see also Sackett v. EPA, 566 U.S. 120, 127 (2012) (“The mere
possibility that an agency might reconsider . . . does not suffice to make an
otherwise final agency action nonfinal.”); Gen. Elec. Co. v. EPA, 290 F.3d 377,
380 (D.C. Cir. 2002) (“If the possibility . . . of future revision . . . could make
agency action non-final as a matter of law, then it would be hard to imagine when
any agency rule . . . would ever be final as a matter of law.”). The breadth of the
ongoing agency reorganizations and Reductions in Force (“RIFs”) at issue in the
14 25-4476 case before us undermines the government’s contention that the ARRPs are
predecisional in a sense that precludes judicial review. On May 16, six days before
the district court issued the preliminary injunction, the Solicitor General had
represented to the Supreme Court that “about 40 RIFs in 17 agencies were in
progress.” Stay Application at 29, Trump v. AFGE, No. 24A1106 (U.S. May 16,
2025). See also AFGE, 139 F.4th at 1028 (noting extensive reorganizations and
RIFs already underway by late May); AFGE, ---- F.Supp.3d ----, 2025 WL
1482511, at *1 n.1, *5 (same). As the district court put it, “[I]f the ARRPs are
non-final planning documents that do not commit an agency to take any specific
action, pursuant to what, then, are the agencies implementing their large-scale
reorganizations and RIFs?” Dist. Ct. Dkt. No. 214 at 10.
Further, there is little evidence in the record to support the government’s
assertion that the ARRPs are deliberative. Deliberative documents “reflect the
give-and-take of the consultative process,” and consist of “subjective documents
which reflect the personal opinions of the writer rather than the policy of the
agency.” Coastal States, 617 F.2d at 866. “Documents which are protected by the
privilege are those which would inaccurately reflect or prematurely disclose the
views of the agency, suggesting as agency position that which is as yet only a
personal position.” Id. (emphasis added). See also Maricopa Audubon Soc. v.
U.S. Forest Service, 108 F.3d 1089, 1093 (9th Cir. 1997) (noting that “[w]e have
15 25-4476 adopted the D.C. Circuit’s definition” of the terms “deliberative process” and
“predecisional”). Deliberative documents contain material “so candid or personal
in nature that public disclosure is likely in the future to stifle honest and frank
communication within the agency.” Coastal States, 617 F.2d at 866. But all
available evidence, including the four ARRPs reviewed thus far in camera,
indicates that the ARRPs represent the considered position of the agency submitted
for approval by OMB, and not the personal opinions of an individual.
However, we are willing to assume arguendo, as did the district court, that at
least some of the ARRPs are predecisional deliberative documents and that the
privilege therefore applies. So assuming, we agree with the district court’s
conclusion that the privilege is overridden in the circumstances of this case. In
determining whether the privilege is overridden, we consider the four factors
articulated in Warner: “(1) the relevance of the evidence; (2) the availability of
other evidence; (3) the government’s role in the litigation; and (4) the extent to
which disclosure would hinder frank and independent discussion regarding
contemplated policies and decisions.” 742 F.2d at 1161. The district court
faithfully applied these factors in assessing whether the privilege, if applicable, is
overcome by the litigant’s “need for the materials and the need for accurate fact-
finding.” Dist. Ct. Dkt. No. 214 at 7–8 (quoting Warner, 742 F.2d at 1161).
16 25-4476 The government’s arguments against in camera disclosure do not withstand
scrutiny. Regarding the first factor, the government contends that the ARRPs
subject to the district court’s discovery order are not relevant to any claims
plaintiffs could plausibly assert in the wake of the Supreme Court’s stay order.
Pet. 13–14. The government is mistaken. The ARRPs are plainly relevant to the
very issue that the Court’s order expressly leaves open. The Court wrote, “We
express no view on the legality of any Agency RIF and Reorganization Plan
produced or approved pursuant to the Executive Order and Memorandum.” Trump
v. AFGE, 145 S. Ct. at 2635. That language most obviously pertains to the three
claims (Claims IV, VI, and VII) upon which the district court expressly did not
rely in issuing its preliminary injunction, and which were not considered by the
Supreme Court. For example, Claim IV challenges, inter alia, any OMB and OPM
decision approving an ARRP, while Claims VI and VII challenge the
“implementation of ARRPs” by named agency defendants as arbitrary and
capricious. Dist. Ct. Dkt. No. 100 at 111–15. The ARRPs are plainly relevant to
those claims. Further, as we explain below, the ARRPs are also relevant to three
of the four claims upon which the district court based its preliminary injunction.
Justice Sotomayor specifically noted in her concurrence that since “[t]he plans
themselves are not before this Court,” the Court’s order “leaves the District Court
free to consider those questions in the first instance.” Trump v. AFGE, 145 S. Ct. at
17 25-4476 2635 (Sotomayor, J., concurring). It is therefore entirely appropriate for the
district court to proceed with discovery of those plans toward an initial
determination of their legality.
The evidence provided by the ARRPs cannot be obtained elsewhere (second
Warner factor); the government is a party to the litigation (third factor); and since
the ARRPs do not represent the personal views of individual authors, it is unlikely
that “disclosure would hinder frank and independent discussion regarding
contemplated policies and decisions” (fourth factor). Warner, 742 F.2d at 1161.
The government suggests that “production will have a chilling effect on internal
Executive Branch deliberations,” Pet. 2, but it offers no evidentiary support for this
claim. Were it true that discovery of the ARRPs would “hinder frank and
independent discussion” or otherwise harm the government, we might expect the
disclosures already effectuated to have produced such effects. But the government
has made no showing of harm resulting from disclosure of the four ARRPs already
reviewed in camera, nor from the one ARRP already in the public record. See
Supp.Add.164–71 (ARRP of National Endowment for the Humanities).
The government’s third argument reframes the government’s claim of
privilege as a presumption that judicial review of agency action under the
Administrative Procedure Act (“APA”) is ordinarily limited to the administrative
record. The government contends the ARRPs would not be included in a judicially
18 25-4476 reviewable record because, as it continues to argue, they are predecisional and
deliberative. Besides the reasons already identified for doubting that
characterization of the ARRPs, there are further reasons why this line of argument
fails. First, plaintiffs challenge approval and implementation of the ARRPs not
merely under the APA, but also as exceeding lawful authority and therefore ultra
vires. See infra, at 21–22. Review of an ultra vires challenge would not be limited
to an administrative record. Second, this case does not come to us in the posture of
an ordinary APA review. There has been no compilation of a conventional
administrative record, no notice-and-comment rulemaking, and no issuance of a
final rule or adjudication. 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. Indeed,
government counsel acknowledged at oral argument that he was unsure whether
“an administrative record has ever really been put together for a RIF.” Oral
Argument at 21:30. If there have been “departures from settled principles” in this
case, cf. Dissent 11, 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. With this case in its current posture, we see no
19 25-4476 reason to insist that the district court remain ignorant of documents that may or
may not eventually be included in an administrative record.
In short, we nowhere find clear error by the district court nor a clear
entitlement to relief on the part of the government. Our denial of mandamus
accords with the longstanding presumption that district courts have broad latitude
to control discovery matters. See Little v. City of Seattle, 863 F.2d 681, 685 (9th
Cir. 1988) (noting a district court’s “wide discretion in controlling discovery”);
Pizzuto v. Tewalt, 136 F.4th 855, 867 (9th Cir. 2025) (“wide latitude in controlling
discovery”). 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. Karnoski, 926 F.3d at 1207; see supra, at 10–
11.
III. Motion to Remand
There are several factors, including developments since the district court’s
issuance of its preliminary injunction in May of this year, that bear on the question
whether to remand to the district court: the Supreme Court’s stay of the district
court’s injunction pending appeal; the Supreme Court’s decision in Trump v. Casa,
145 S. Ct. 2540 (2025); ongoing agency reorganizations since the district court
issued its injunction; the continuing pendency of Claims IV, VI and VII in the
district court; and our decision today denying a writ of mandamus. Taking all of
20 25-4476 these factors into account, we conclude that it would serve judicial economy for
the district court to assess in the first instance the impact of these developments.
First, as noted above, the Supreme Court has stayed the district court’s
injunction pending review on appeal and certiorari to the Court. Some delay in
reaching a decision in this case is thus already guaranteed.
Second, remand will afford the district court the opportunity to consider the
impact of the Supreme Court’s recent decision in Trump v. Casa. When the
district court granted the preliminary injunction, Casa had not yet been decided.
Casa severely limits the power of district courts to issue nationwide injunctions.
At oral argument before us, government counsel stated the government will
challenge the existing preliminary injunction on the ground that, inter alia, it is
overly broad under Casa. Oral Argument at 55:31. Remand will allow the district
court to tailor any possible injunction in light of Casa.
Third, a remand will allow the district court to assess this suit in light of
government actions since the issuance of the now-stayed injunction in continuing
to dismiss and threaten dismissal of employees. An up-to-date factual record will
allow the district court to tailor any possible injunctive relief to current rather than
past circumstances.
21 25-4476 Fourth, remanding to the district court may not delay the ultimate
termination of this litigation. The government would prefer to obtain a definitive
ruling in its favor sooner rather than later. But, of course, it is not clear at this time
that the government will prevail. Further, even if the government does ultimately
prevail it may not suffer significant harm from a remand, given that it will be
permitted to engage in its challenged behavior while the district court considers the
case on remand, and given that the Supreme Court may well grant another stay of
any relief that the district court may order. Finally, it is not clear, given the
continued pendency of Claims IV, VI and VII in the district court, that a definitive
ruling disposing of the entire litigation will be delayed by a remand of Claims I, II,
III and V.
Fifth, the district court’s evaluation of the claims we remand today will be
assisted by the information that will be available based on discovery of the ARRPs
at issue in the mandamus petition. The ARRPs will obviously be useful in
evaluating Claims IV, VI and VII, which have remained in the district court. But
as plaintiffs’ counsel represented to us at oral argument without contradiction by
the government, the ARRPs will also be useful in evaluating remanded Claims II,
III and V. Claim II challenges not merely the Executive Order and Memorandum
as ultra vires, but also all “actions and orders of OMB, OPM, and DOGE to
implement” the Order, “including but not limited to . . . any direction, approval, or
22 25-4476 requirement imposed with respect to any ARRPs” as exceeding lawful authority,
“contrary to statute and thus ultra vires.” Dist. Ct. Dkt. No. 100 at 109. Claim III
contains similar language challenging “any direction, approval or requirement
imposed with respect to any ARRPs” as in violation of the APA. Id. at 111. Claim
V encompasses within its challenge “any decision ‘approving’ an ARRP.” Id at
113. The ARRPs at issue in the discovery order before us are plainly relevant to
these elements of these three claims. A remand to allow the district court to
consider these ARRPs, as well as other discovered evidence, is consistent with the
Supreme Court’s order, which expressly declined to express a view on the legality
of the ARRPs.
We express no view on the merits of the current appeal and grant the motion
to remand to the district court. We note that on September 9, the district court
granted the government’s motion to dismiss the allegations against defendant
DOGE in Claims II–V of the amended complaint, denied the balance of the motion
to dismiss, and granted plaintiffs leave to amend their allegations regarding DOGE.
Dist. Ct. Dkt. No. 259 at 11–13. No appeal of the district court’s September 9
order is before us.
IV. Conclusion
We DENY the petition for writ of mandamus in Trump v. United States
District Court for the Northern District of California, No. 25-4476. We VACATE
23 25-4476 AND REMAND in American Federation of Government Employees v. Trump, No.
25-3293.
24 25-4476 FILED Trump v. U.S. Dist. Court, No. 25-4476 & AFGE v. Trump, No. 25-3293 SEP 19 2025 IKUTA, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
The majority today does not acknowledge the district court’s clear error in
ordering the production of documents that implicate the executive branch’s
deliberative processes, even though producing such intra-executive branch
dialogues implicates separation of process concerns that require the most “careful
consideration” by the judiciary. Karnoski v. Trump, 926 F.3d 1180, 1206–07 (9th
Cir. 2019) (per curiam). Because the district court’s production order was clearly
erroneous as a matter of law, and the other mandamus factors also favor the
government, I respectfully dissent from the decision to deny mandamus relief.
I
On February 11, 2025, the President issued Executive Order 14210 (the EO)
to require heads of federal agencies to “undertake preparations to initiate large-
scale reductions in force (RIFs), consistent with applicable law.” The EO also
required the Agency Heads to develop and submit agency reorganization plans to
the head of the Office of Management and Budget (OMB). The EO gave the
Director of the Office of Personnel Management (OPM) authority to “grant
exemptions from this order.” To flesh out the EO, OMB and OPM issued a
memorandum (the Memorandum) explaining the nature of the Agency RIF and
Reorganization Plans (ARRPs) requested in the EO, and how the ARRPs should be submitted for review and approval from OMB and OPM. In effect, the EO and the
Memorandum began a dialogue with federal agencies about potential RIFs and
reorganizations.
In response to the EO and the Memorandum, the agencies provided OMB
and OPM with ARRPs describing potential RIFs and reorganizations. According
to OMB, neither the ARRPs themselves, nor their review or approval, bound an
agency to any particular course of action. At some point, individual agencies
proceeded with reductions in force. The record does not reflect whether any
agency adopted an ARRP for its final agency decision document. Therefore, the
majority errs in holding that the ARRPs are final agency actions as to the RIFs and
reorganizations. Maj. Ord. at 13–15.
A coalition of labor unions, nonprofit organizations, and municipal
governments (collectively, Plaintiffs) brought seven claims against the President,
OMB, OPM, and government agencies and their heads (the individual agency
defendants) challenging the EO, the Memorandum, and the agencies’ RIFs and
reorganizations. Claims I and II, the ultra vires claims, claimed that the President,
OMB, and OPM acted outside their scope of authority, while Claims III, IV, and V
alleged violations of the Administrative Procedure Act (APA). Claims VI and VII
alleged that the individual agency defendants violated the APA due to their
2 responses to OMB and OPM, such as by producing ARRPs for review and
approval, and by engaging in RIFs and reorganizations.
In response to the Plaintiffs’ motion, the district court granted a preliminary
injunction that paused “further RIFs and reorganization of the executive branch for
the duration of this lawsuit.” The district court held that the Plaintiffs were likely
to succeed on the merits of Claims I and II, the ultra vires claims, and Claims III
and V, two APA claims against OMB and OPM. The district court reserved ruling
on the other claims. The government appealed, and a motions panel of our court
denied the government’s motion for a stay pending appeal. AFGE v. Trump
(AFGE I), 139 F.4th 1020, 1029 (9th Cir. 2025).
In July 2025, the Supreme Court stayed the preliminary injunction “pending
the disposition of the appeal in” the Ninth Circuit “and disposition of a petition for
a writ of certiorari, if such a writ is timely sought.” Trump v. AFGE (AFGE II),145
S. Ct. 2635, 2635 (2025). The Supreme Court stated that “the Government is
likely to succeed on its argument that the [EO] and Memorandum are lawful,” and
that “the other factors bearing on whether to grant a stay are satisfied.” Id.
However, the Supreme Court expressed “no view on the legality of any [ARRP]
produced or approved pursuant to the [EO] and Memorandum,” because “[t]hose
plans [were] not before this Court.” Id.
3 After the preliminary injunction was stayed, the parties proceeded with
litigation. In May 2025, the district court ordered the government to produce all of
the agencies’ ARRPs on an expedited basis. In opposing that initial order, the
government argued that the Plaintiffs’ APA claims must be adjudicated based on
the administrative record, and not on extra-record evidence. See 5 U.S.C. § 706
(stating that reviewing courts under the APA “shall review the whole record.”)
However, the district court rejected the government’s argument, and on July 18,
2025, the district court again ordered the production of all the ARRPs (the
production order) without deciding whether these materials would be part of any
administrative record. Instead, the district court stated that there were narrow
exceptions to the general rule that courts reviewing an agency action are limited to
the administrative record, and it was “premature for the government to assert that
such exceptions would never apply here.”1 The district court then “assume[d]
without deciding that at least some ARRPs may include pre-decisional and
deliberative materials,” such that they would be protected from disclosure by the
deliberative process privilege. But, the district court concluded “that the need for
accurate fact-finding in this litigation overrides any interest in non-disclosure.”
1 After the Supreme Court stayed the district court’s preliminary injunction, the district court focused on the relevance of the ARRPs to the remaining APA claims that were not addressed by its preliminary injunction order. 4 The government petitioned for a writ of mandamus and asked us to “direct[]
the district court to vacate its order of July 18, 2025.”
II
The district court’s order for discovery of the ARRPs, which are pre-
termination, pre-decisional documents, is clearly erroneous. A “well-settled
principle[] govern[s] judicial review of agency action under the APA.” Blue
Mountains Biodiversity Project v. Jeffries, 99 F.4th 438, 444 (9th Cir. 2024).
Namely, “the whole record” in an APA action under 5 U.S.C. § 706 is ordinarily
‘the record the agency presents.’” Id. at 444–45 (quoting Fla. Power & Light Co.
v. Lorion, 470 U.S. 729, 743–44 (1985)). “Thus, barring clear evidence to the
contrary, we presume that an agency properly designated the Administrative
Record.” Id. at 445 (citation modified). “[A] court is ordinarily limited to
evaluating the agency’s contemporaneous explanation in light of the existing
administrative record.” Dep’t of Commerce v. New York, 588 U.S. 752, 780 (2019)
(citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense
Council, Inc., 435 U.S. 519, 549 (1978)). Thus, deliberative documents prepared
for the decision-making process are ordinarily not part of the administrative record.
Blue Mountains Biodiversity Project, 99 F.4th at 445. Courts may justify extra-
record discovery only on a “strong showing of bad faith or improper behavior” by
5 the agency decisionmakers. Dep’t of Commerce, 588 U.S. at 781 (citation
omitted).2
Pre-decisional, deliberative documents are protected by the deliberative
process privilege. See FTC v. Warner Commc’ns, Inc., 742 F.2d 1156, 1161 (9th
Cir. 1984) (per curiam). This privilege “was developed to promote frank and
independent discussion among those responsible for making governmental
decisions, and also to protect against premature disclosure of proposed agency
policies or decisions.” Id. (citation modified). We have held that the deliberative
process privilege is applicable if a document meets two requirements. First, it
must be pre-decisional, in that “it must have been generated before the adoption of
an agency’s policy or decision.” Id. Second, it “must be deliberative in nature,
containing opinions, recommendations, or advice about agency policies.” Id.; see
also Karnoski, 926 F.3d at 1204 (stating that the deliberative process privilege
protects “‘documents reflecting advisory opinions, recommendations and
2 The majority claims that judicial review would not be limited to the administrative record because the Plaintiffs have raised ultra vires claims in addition to their APA claims. Maj. Ord. at 19. But the district court did not require the production of the ARRPs to support its analysis of the Plaintiffs’ ultra vires claims. Rather, the district court concluded that the Plaintiffs were likely to succeed on the merits of their ultra vires claims because the President, OMB, and OPM violated separation of powers and therefore exceeded their lawful authority in ordering the agencies to engage in RIFs and reorganizations. 6 deliberations comprising part of a process by which governmental decisions and
policies are formulated’” (quoting Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8 (2001))).3 The ARRPs meet both requirements, as
they provided recommendations for potential RIF and reorganization plans before
the agencies implemented their final decision.4
The privilege “although not absolute, require[s] careful consideration by the
judiciary, even when [it has] not been clearly or persuasively raised by the
government.” Karnoski, 926 F.3d at 1207. Its “unique features” suggest that,
when a district court orders production of such deliberative documents, “there is no
other adequate means of relief” beyond mandamus. Id. at 1203.
3 Contrary to the majority, our cases do not limit the deliberative process privilege to personal opinions alone. Maj. Ord. at 15–16. Even Coastal States Gas Corp. v. Dep’t of Energy, the out-of-circuit case on which the majority relies, lists communications that are “subjective or personal” in nature as just one example of the types of documents protected by the deliberative process privilege. 617 F.2d 854, 868 (D.C. Cir. 1980). 4 The deliberative process privilege is equally applicable outside the APA context. See, e.g., Warner Comm’ns, 742 F.2d at 1161–62 (applying privilege in action to block a proposed joint venture under the Federal Trade Commission Act); United States v. Fernandez, 231 F.3d 1240, 1246–47 (9th Cir. 2000) (applying privilege to documents related to government’s request for authorization to pursue death penalty). To the extent the district court ordered production of the ARRPs to assess the ultra vires claims, the deliberative process privilege would still apply. 7 Special considerations inform courts in deciding whether discovery of such
documents is warranted. See Order, U.S. Doge Service v. Ctr. for Responsibility
and Ethics in Washington, No. 24A1122 (U.S. June 6, 2025). Courts must
consider “whether the District Court’s actions constituted an unwarranted
impairment of another branch in the performance of its constitutional duties.”
Cheney v. U.S. Dist. Ct., 542 U.S. 367, 390 (2004). Ordinarily, courts limit their
evaluation to “reflect[] the recognition that further judicial inquiry into executive
motivation represents a substantial intrusion into the workings of another branch of
Government and should normally be avoided.” Dep’t of Commerce, 588 U.S. at
780–81 (citation modified).
Here, the district court clearly exceeded the scope of its authority. Judicial
review “is ordinarily limited” to the administrative record, id. at 780, subject to
limited exceptions.5 Not only did the district court err in failing to decide whether
the ARRPs were part of such record, but it further erred by failing to decide
5 The majority claims that there is no conventional administrative record because the government’s RIFs and reorganizations have been carried out without the processes that would ordinarily produce such a record. Maj. Ord. at 18–19. However, Plaintiffs themselves sought production of the administrative record in the district court and contend that such a record should be available. While government counsel noted at oral argument that he was unsure whether “an administrative record has even been put together for a RIF,” he did not suggest that such a record does not exist or could not be compiled. 8 whether an exception to that general rule was applicable, and by putting the burden
on the government to show that an exception to the rule did not apply.6 Rather, to
justify an order compelling extra-record discovery, the district court must find that
a narrow exception applies, not merely assert that exceptions are possible. See
Dep’t of Commerce, 588 U.S. at 781; Blue Mountains Biodiversity Project, 99
F.4th at 445 (“Deliberative documents, which are prepared to aid the
decision-maker in arriving at a decision, are ordinarily not relevant to” assessing
the lawfulness of agency action) (citations omitted).
Furthermore, the district court clearly erred by failing to address separation
of powers concerns. Generally, courts may not intrude “into the workings of
another branch of Government.” Dep’t of Commerce, 588 U.S. at 780-81. Courts
“may not reject an agency’s stated reason for acting simply because the agency
might also have had other unstated reasons,” and they “may not set aside an
agency’s policymaking decision solely because it might have been . . . prompted by
an Administration’s priorities.” Id. Inquiring into the “mental processes of
administrative decisionmakers” requires, at minimum, “a strong showing of bad
6 The majority errs by determining, based on its own fact-finding, that the ARRPs would be part of any administrative record and may be disclosed to the district court and plaintiffs’ counsel. Maj. Ord. at 15, 18–19. Nothing in the record supports this determination. 9 faith or improper behavior.” Id. (citation modified). This concern is especially
strong for communications within the Executive Branch. See, e.g., Order, U.S.
Doge Service; Cheney, 542 U.S. at 385. The district court order implicates these
concerns by compelling disclosure of pre-decisional, deliberative communications
within the Executive Branch. But, instead of addressing the separation of powers,
the district court considered only the possible damage to the government’s
employee recruitment, retention, and labor relations. The district court did not
consider whether its order requiring “extra-record discovery” would implicate the
separation of powers concerns that the Supreme Court identified in Department of
Commerce. 588 U.S. at 781–82. Thus, the district court “should not have ordered
extra-record discovery when it did,” id., and its production order was clearly
erroneous.
These departures from settled principles establish that the district court’s
production order is clearly erroneous as a matter of law.7 To conclude otherwise,
the majority assumes that the ARRPs are final agency actions and then
7 The other mandamus factors are also satisfied here. The district court’s order is not directly appealable, as it is neither a final order nor an interlocutory order granting an injunction. See 28 U.S.C. §§ 1291, 1292(a). The government would be harmed from the disclosure of privileged deliberations to the district court and plaintiffs’ counsel, which cannot be reversed or rectified by an appeal from final judgment. See Karnoski, 926 F.3d at 1203. Finally, the order raises “new and important problems or issues of first impression.” Id. 10 characterizes the issues involved as ordinary “discovery matters.” Maj. Ord. at 20.
Therefore, I respectfully dissent from the denial of the government’s petition for a
writ of mandamus.