The Ninth Circuit Just LIT the Fuse on a Constitutional CRISIS! | PART 2

Quick Overview

The Ninth Circuit panel majority erred by issuing an overly broad discovery order that failed to recognize the separation of powers, particularly by ignoring that the discovery order applied to unapproved internal RIF plans and by failing to require plaintiffs to show bad faith or improper motive, thereby undermining the deliberative process privilege.

Key Points: The panel majority erred first by viewing the deliberative process privilege overcome without any showing of bad faith or improper motive. The panel majority erred in not reigning in the district court's overly broad discovery order, which applied to 21 federal agencies, including 13 that had not yet implemented any RIFs or reorganizations. The discovery order applied to unapproved internal RIF Plans, requiring disclosure of any plan simply submitted to OMB and OPM, which the court failed to narrow. The panel majority discounted the government's interests and improperly shifted the burden to prove governmental harm, focusing only on whether the government proved a 'chilling effect' on internal Executive Branch deliberations. The panel majority ignored precedent showing that the government is only protected by the privilege if it proves an immediate demonstrable injury. The panel majority's reasoning essentially allows for extra-record discovery simply by adding the words 'ultra vires' to a complaint, bypassing normal APA discovery limits. The dissent argued that the panel majority erred in not taking the case en banc to correct the panel majority's 'departures from settled principles' regarding separation of powers.

Context: The speaker, Andrew Branca, analyzes a judicial decision, likely a dissent, criticizing a Ninth Circuit panel majority's ruling regarding the scope of the deliberative process privilege in discovery requests related to internal government planning documents, specifically concerning Reduction in Force (RIF) plans. The core issue revolves around whether the lower court's discovery order was too broad and improperly bypassed established legal standards for overcoming executive privilege.