Reported / Citable
Background
Daryl Whitfield is an import specialist at U.S. Customs and Border Protection with disabilities related to prior military service. Before 2020 he worked in the office one day per week. CBP suspended in-office work from March 2020 to April 2022 because of COVID-19, resumed the one-day requirement in April 2022, and in March 2025 required full-time in-person work. Beginning in March 2022 he asked to work remotely full time and later filed further requests and administrative complaints. In May 2025, acting pro se, he sued the Secretary of Homeland Security under the Rehabilitation Act, alleging failure to provide reasonable accommodations and failure to engage in the interactive process. He moved for a preliminary injunction against the return-to-office requirement.
The Central District of California denied the motion. It applied the four Winter factors but treated the request as a mandatory injunction, requiring that the law and facts clearly favor Whitfield. It concluded he could not show a likelihood of success on the merits, given CBP's accommodation efforts, including an offer to return him to his earlier one-day-per-week schedule and other accommodations. In an unpublished disposition, a Ninth Circuit panel reversed. It held that the status quo when Whitfield began challenging the policy was fully remote work, so his request was an ordinary prohibitory injunction. On remand, the panel said, he need only show serious questions on the merits if the balance of hardships tips sharply in his favor and the other factors are met. The panel did not decide whether he met that standard.
The Court’s Holding
The court denied the government's petition for rehearing en banc in a published order. Judge Thomas voted to deny, and Judges McKeown and N.R. Smith recommended denial. A judge requested a vote, and the matter did not receive a majority of the non-recused active judges. The order is not a merits ruling. It leaves the panel disposition and the remand in place, and the Rehabilitation Act claim and the preliminary injunction request remain undecided. The government did not challenge the panel's conclusion that the mandatory-injunction standard was misapplied. It asked only that the court revisit the serious-questions test. Whitfield, represented by court-appointed pro bono counsel, did not defend the test on the merits and argued that the case was a poor vehicle.
Judge Bress, joined by Judges Callahan, Bennett, R. Nelson, Bade, Collins, Lee, Bumatay, VanDyke and Tung, dissented from the denial. He reasoned that Winter requires a plaintiff to show likely success on the merits and rejected a mere possibility of irreparable harm. Starbucks v. McKinney held that a lower reasonable-cause standard conflicted with Winter. The circuit itself calls serious questions a lesser showing on the merits. He said the Fourth and Tenth Circuits have rejected the test, the D.C. Circuit has called its survival questionable, and the Eighth Circuit has called similar language imprecise, while the Second and Seventh Circuits have retained it. He rejected the vehicle objection because the panel's remand instructions depend on the test, and he said the unpublished form of the disposition did not matter because it rested on established circuit precedent.
Judge VanDyke, joined by Judges Bumatay and Tung, joined that dissent and wrote separately. He argued that Miller v. Gammie's "clearly irreconcilable" requirement keeps three-judge panels from following intervening Supreme Court authority unless it is nearly identical to circuit precedent. In his view, errors therefore persist unless the en banc court or the Supreme Court acts. He urged the Supreme Court to correct the serious-questions rule and Miller. These views are dissents, not holdings.
Key Takeaways
- The en banc denial is not a merits ruling, and the district court must reconsider the preliminary injunction request on remand under the prohibitory-injunction framework.
- The panel's disposition is unpublished and carries no precedential weight, but the serious-questions test it invoked remains Ninth Circuit law drawn from published decisions.
- Ten judges dissented, contending that the test lowers the merits showing required by Winter and Starbucks.
- The dissent describes a split in which the Fourth and Tenth Circuits reject the test, the D.C. Circuit questions it, and the Second and Seventh Circuits retain it.
- Judge VanDyke's separate dissent targets the Miller v. Gammie standard for when a panel may depart from circuit precedent, a question the order does not resolve.
Why It Matters
The order shows that a substantial minority of the Ninth Circuit's active judges believe the serious-questions test cannot be reconciled with Winter and Starbucks. Because rehearing was denied, district courts in the circuit must keep applying the sliding scale, and plaintiffs may still obtain a preliminary injunction on a lesser merits showing when the hardships tip sharply in their favor.
The dissents invite Supreme Court attention, but nothing in the order guarantees review. Whether Whitfield can meet either standard, and how the district court will treat the accommodation CBP offered, remain open on remand.