Whitfield v. Mullin

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 5, 2026
• Docket: 25-5220
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 5 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DARYL WHITFIELD, No. 25-5220

Plaintiff - Appellant, D.C. No. 2:25-cv-04499-HDV-PD v.

MARKWAYNE MULLIN, in his official MEMORANDUM* capacity as Secretary of the Department of Homeland Security,

Defendant - Appellee.

Appeal from the United States District Court for the Central District of California Hernan Diego Vera, District Judge, Presiding

Submitted April 30, 2026**

Before: McKEOWN, N.R. SMITH, and H.A. THOMAS, Circuit Judges.

Daryl Whitfield appeals the district court’s denial of his motion for a

preliminary injunction enjoining then-Secretary Kristi Noem from allowing

Customs and Border Protection (“CBP”)—Whitfield’s employer—to mandate that

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Whitfield report in-person to the Los Angeles/Long Beach CBP office. We have

jurisdiction under 28 U.S.C. § 1292(a)(1). Because the district court applied an

incorrect preliminary injunction standard, we reverse and remand for further

proceedings.

Whitfield is an import specialist for CBP. He suffers from numerous

military service-connected disabilities: post-traumatic stress disorder, chronic

migraines, tinnitus, gastroesophogeal reflux disease, rhinitis, sinusitis, ADHD,

rheumatoid arthritis, generalized anxiety disorder, and obstructive sleep apnea.

Since January 26, 2024, he has been found “totally and permanently disabled due

to [his] service-connected disabilities.”

Before 2020, Whitfield conducted in-person examinations of merchandise

one day per week. Between March 2020 and April 2022, CBP suspended all in-

person work for import specialists due to the COVID-19 pandemic. In April 2022,

Whitfield’s team reinstituted a one-day-per-week in-person work requirement. In

March 2025, CBP required that all import specialists return to in-person work full

time.

Whitfield first contested his return to in-person work under his collective

bargaining agreement on March 2, 2022, prior to the reinstatement of the post-

COVID return-to-work policy. He filed reasonable accommodation requests in

March and October of 2022, and December of 2024; multiple requests to

2 25-5220 reconsider those accommodation requests; and multiple Equal Employment

Opportunity Commission complaints. On May 19, 2025, Whitfield commenced

this action pro se, alleging that CBP failed to engage in the interactive process,

failed to provide reasonable accommodation, and retaliated against him in violation

of the Rehabilitation Act; and that Whitfield suffered racial discrimination in

violation of Title VII. The following day, Whitfield filed a motion seeking a

temporary restraining order and preliminary injunction based on his Rehabilitation

Act reasonable-accommodation and interactive-process claims.

The district court denied Whitfield’s motion for a preliminary injunction

because he could not show a likelihood of success on the merits. In doing so, the

district court applied the heightened preliminary injunction standard for mandatory

injunctions.

We review de novo the district court’s legal conclusions. Where Do We Go

Berkeley v. Cal. Dep’t of Transport., 32 F.4th 852, 857 (9th Cir. 2022) (citation

omitted). Plaintiffs seeking a preliminary injunction must establish (1) a likelihood

of success on the merits; (2) irreparable harm; (3) that the balance of equities tips

in their favor; and (4) that an injunction is in the public interest. Winter v. Nat.

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). When the government is a party,

the last two factors merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092

(9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).

3 25-5220 When evaluating the Winter factors, we employ a “sliding scale test.” All.

for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011).

Although we have held that failure to demonstrate a likelihood of success on the

merits permits a district court to deny a preliminary injunction without considering

the other factors, Bennett v. Isagenix Int’l LLC, 118 F.4th 1120, 1126 (9th Cir.

2024), our sliding scale approach means that “when plaintiffs establish that the

balance of hardships tips sharply in their favor,” and the other factors are met,

plaintiffs “need only show serious questions on the merits,” Where Do We Go

Berkeley, 32 F.4th at 859 (citation modified).

The district court erred by applying the mandatory injunction standard and

requiring that “a court must find more than a likelihood of success” and that “the

laws and facts [must] clearly favor [Whitfield’s] position.” Instead, under our

ordinary sliding-scale approach for prohibitory injunctions, Whitfield needed only

establish that a “serious question” existed as to whether he was denied a reasonable

accommodation under the Rehabilitation Act if the balance of hardships tips

“sharply” in his favor. See id. at 859.

Mandatory injunctions are those that “order[] a responsible party to ‘take

action’” and “go[] well beyond simply maintaining the status quo pendente lite.”

Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc). “The status

quo means the last, uncontested status which preceded the pending controversy.”

4 25-5220 Id. at 740 n.4 (quoting N.D. ex rel. Parents v. Haw. Dep’t of Educ., 600 F.3d 1104,

1112 n.6 (9th Cir. 2010)). Here, Whitfield began contesting CBP’s in-office

attendance policy in March 2022, prior to the end of the COVID-era remote-work

policy. Therefore, the status quo pendente lite was fully remote work. See

GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (“In this

case, the status quo ante litem existed before Disney began using its allegedly

infringing logo. The [contrary] interpretation . . . would lead to absurd situations,

in which plaintiffs could never bring suit once infringing conduct had begun.”).

Properly construed, then, Whitfield’s request is one for an ordinary prohibitory

injunction.

We do not decide whether the balance of hardships tips sharply in

Whitfield’s favor or if Whitfield has successfully established a “serious question”

as to the merits of his reasonable accommodation claim. We reverse and remand

for further consideration under the Winter sliding-scale prohibitory injunction

standard.

REVERSED and REMANDED for further proceedings consistent with this

disposition.

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