In a significant development, several conservative judges from the 9th U.S. Circuit Court of Appeals have vehemently expressed their dissent as the majority decided against ordering a full panel rehearing of a contentious discovery order. The Department of Justice has portrayed this order as an infringement on the separation of powers.

The decision by the 9th Circuit, announced on Monday, upholds the ruling of a three-judge panel. This panel had previously allowed a district judge to conduct an in-chambers review of internal documents from the Trump administration. These documents pertain to plans involving mass layoffs, reductions in force, and reorganization strategies across 19 federal agencies.

The lawsuit in question, American Federation of Government Employees (AFGE) v. Trump, was initiated in April. It challenges former President Donald Trump’s authority to reorganize or downsize federal agencies without explicit Congressional approval. This challenge is tied to executive order 14210, and the roles of the Department of Government Efficiency (DOGE), the Office of Management and Budget (OMB), and the Office of Personnel Management (OPM) in these efforts.

In May, Senior U.S. District Judge Susan Yvonne Illston, appointed by Bill Clinton, issued a preliminary injunction to halt the layoffs. This injunction also mandated that the administration provide the court with discovery materials related to the reduction in force plans.

Judge Illston emphasized the necessity of this information for evaluating the individual agency reorganization plans and the involvement of OMB, OPM, and DOGE. She justified the expedited discovery process, indicating that the timelines within these plans would aid the court in determining the need for further rapid interventions.

Predictably, the Department of Justice contested the ruling, leading the U.S. Supreme Court to issue an emergency stay of the order in July, pending a decision from 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.