# The Ninth Circuit Just LIT the Fuse on a Constitutional CRISIS! | PART 2 Source: https://www.youtube.com/watch?v=5P_j-zmKqxg Recap page: https://rapidrecap.app/video/5P_j-zmKqxg Generated: 2026-01-13T18:45:51.797+00:00 --- ## 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. ![Screenshot at 00:00: The speaker, Andrew Branca, begins analyzing a document excerpt that criticizes a panel majority's decision for failing to step in when the Supreme Court already should have, specifically regarding the separation of powers and the denial of rehearing en banc.](https://ss.rapidrecap.app/screens/5P_j-zmKqxg/00-00-00.jpg) **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. ## Detailed Analysis The speaker critiques the Ninth Circuit panel majority's decision, stating it erred by viewing the deliberative process privilege as overcome without requiring any showing of bad faith or improper motive. Even if the privilege was overcome, the panel majority erred by not reigning in the district court's discovery order, which was overly broad. The discovery order applied to 21 federal agencies, including at least 13 that had not yet implemented any RIFs or reorganizations, and required disclosure of unapproved internal RIF Plans simply submitted to OMB and OPM. The panel majority improperly shifted the burden to the government to prove harm, focusing only on a 'chilling effect' rather than requiring evidence of demonstrable injury, as established in precedent. The panel majority's reasoning effectively allows plaintiffs to obtain extra-record discovery simply by claiming 'ultra vires' without meeting the necessary burden. The speaker references the dissent, which argued the panel majority's decision constituted 'departures from settled principles' regarding separation of powers, and notes that the Supreme Court has recently warned against overly broad 'ultra vires' review becoming an easy end-run around normal judicial review statutes like the APA. The speaker concludes by referencing historical precedents from Presidents Washington, Jefferson, Hamilton, and others who exercised executive privilege, and notes that the deliberative process privilege derives from the separation of powers doctrine. ### Initial Critique & Mandamus Threshold - Satisfying the threshold for mandamus is high but not insurmountable - The panel majority's denial of rehearing en banc was wrong because it departed from settled principles regarding separation of powers. ### Panel Majority's Errors in Discovery - Panel majority erred first by viewing the deliberative process privilege overcome without showing bad faith or improper motive - The discovery order was overly broad, applying to RIF plans not yet implemented by 13 of 21 agencies. ### Government Interest Discounted - Panel majority discounted government interests and shifted the burden to prove harm, focusing only on a 'chilling effect' on internal deliberations. ### Ultra Vires Claims as Discovery Shortcut - Plaintiffs argued the RIF plans exceeded unlawful authority ('ultra vires'), but the panel majority accepted this without proper citation or limiting the review to an administrative record. ### Historical Context of Executive Privilege - Deliberative process privilege is a form of executive privilege, grounded in the Constitution and separation of powers, established since the Founding Era (citing Washington's cabinet). ### Deliberative Process Privilege Not Overcome - The privilege is not absolute; courts must give 'careful consideration' to Executive interests, requiring discovery orders to be 'narrow' and not broader than necessary (citing Cheney and Karkowski). ### APA Review and Discovery Limits - The panel majority misread APA review rules, applying them to non-deliberative material and ignoring that plaintiffs failed to show harm or that the normal challenge channel (Merit Systems Protection Board/Federal Circuit) was inadequate. ![Screenshot at 00:00: The speaker begins analyzing a document excerpt that criticizes a panel majority's decision for failing to step in when the Supreme Court already should have, specifically regarding the separation of powers and the denial of rehearing en banc.](https://ss.rapidrecap.app/screens/5P_j-zmKqxg/00-00-00.jpg) ![Screenshot at 00:24: The speaker emphasizes that the discovery order's reach was too broad, applying to RIF plans that were not yet implemented by many agencies.](https://ss.rapidrecap.app/screens/5P_j-zmKqxg/00-00-24.jpg) ![Screenshot at 01:36: The speaker quotes the argument that RIF plans infused with policy recommendations and legal analyses fit the requirements of a predecisional, deliberative document.](https://ss.rapidrecap.app/screens/5P_j-zmKqxg/00-01-36.jpg) ![Screenshot at 05:57: The speaker details the panel majority's first error: viewing the deliberative process privilege overcome without any showing of bad faith or improper motive.](https://ss.rapidrecap.app/screens/5P_j-zmKqxg/00-05-57.jpg) ![Screenshot at 11:43: The speaker cites historical precedent showing executive privilege roots in the Founding Era, with Washington asserting the right to withhold documents requested by Congress.](https://ss.rapidrecap.app/screens/5P_j-zmKqxg/00-11-43.jpg)