A group of conservative judges from the 9th U.S. Circuit Court of Appeals expressed strong dissent as the majority decided not to proceed with a full panel rehearing of a discovery order. This order, according to the Department of Justice, represents a judicial infringement on the separation of powers.

On Monday, the 9th Circuit declined to revisit a previous decision by a three-judge panel. This decision allows a district judge to continue with a discovery order that includes the in-chambers review of internal Trump administration documents. These documents pertain to plans for mass layoffs, agency reductions, and reorganization efforts across 19 federal agencies.

The legal challenge, titled American Federation of Government Employees (AFGE) v. Trump, was initiated in April. It argues that President Donald Trump lacked the authority to reorganize or downsize federal agencies without explicit Congressional approval. This challenge particularly targets actions taken under executive order 14210, and involves the Department of Government Efficiency (DOGE), the Office of Management and Budget (OMB), and the Office of Personnel Management (OPM).

In May, Senior U.S. District Judge Susan Yvonne Illston, appointed by Bill Clinton, issued a preliminary injunction. This injunction halted the proposed layoffs and required the Trump administration to provide the court with detailed plans regarding the reduction in force.

Judge Illston emphasized the need for more information to assess the specific agency reduction and reorganization plans (ARRPs) and the roles played by OMB, OPM, and DOGE. She stated, “The Court requires more information to evaluate the individual ARRPs and the involvement of OMB, OPM, and DOGE. Therefore, it will order their disclosure under the Court’s inherent powers to manage discovery.” She further noted that the expedited disclosure of these plans is crucial for determining whether swift further action is needed.

Unsurprisingly, the DOJ appealed, and the U.S. Supreme Court went on to stay the order on an emergency basis in July pending the outcome at the 9th Circuit.

In September, a three-judge panel on the 9th Circuit in a 2-1 decision refused to issue the “extraordinary” relief of a writ of mandamus, leaving untouched Illston’s “discovery order requiring in camera production of certain agency documents.” The majority called attention to the “care” with which the lower court handled the Trump administration’s privilege claims.

“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 panel said. “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.”

The Trump administration would not let that stand, asking the 9th Circuit to rehear the issue en banc.

On Monday, the 9th Circuit declined to do so, but not without some fireworks.

Although the denial “speaks for itself,” wrote Senior U.S. Circuit Judge William A. Fletcher and U.S. Circuit Judge Johnnie B. Rawlinson, both Bill Clinton appointees who formed the prior panel’s majority, the jurists saw fit to respond to the dissenters by first calling attention to how the U.S. Supreme Court handled the case when it issued its stay.

“Our colleague omits to mention that the Court specifically left open the legality of the documents at issue in the petition before us. We wrote in our order 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,’” the majority stated. “As Justice Sotomayor noted in concurrence, the Supreme Court’s stay ‘leaves the District Court free to consider those questions in the first instance.’”

“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,’” concluded Fletcher and Rawlinson.

The dissent penned by U.S. Circuit Judge Patrick Bumatay, a Trump appointee, went off on the majority for declining order a rehearing that could force Illston to rectify her “clear error” through mandamus relief.

Bumatay, joined by fellow Trump-appointed U.S. Circuit Judges Lawrence VanDyke, Eric Tung and Ryan Nelson, plus George W. Bush appointee Consuelo Callahan, wrote that the Trump administration was right to assert that Illston overstepped and, in doing so, offended the separation of powers.

“This controversy began with a Sharpie,” the dissent began, alluding to Trump’s signing of his challenged executive order.

From here, the dissenters said, the majority stood idly by, ignored the “constitutional pitfall” of Illston’s making, “mangled the law,” and refused to “correct” multiple errors.

“The district court believed only agencies—acting independent of the President—could consider implementing RIFs. Of course, this ignores that only the President is vested with the Executive Power,” said the dissent, before sharply upbraiding the majority for doing nothing about an “error” that “seriously degrades the separation of powers” by “opening the federal government’s internal deliberations to the whims of district courts opposed to presidential policies.”

Drawing a football analogy, Bumatay added that the lower court and 9th Circuit had transformed the plaintiffs’ “Hail Mary pass into a screen pass” and signed off on “an easy end-run around” the Administrative Procedure Act’s “ordinary discovery limits.”

“Our respect for the Constitution demands that we treat the internal deliberative documents of a co-equal branch of government with appropriate care. We don’t cavalierly intrude on those communications because we disfavor the governments actions or believe it could have managed things differently,” the dissent ended.