Whitfield v. Mullin — Ninth Circuit declined to rehear its preliminary-injunction ruling en banc

Case
Daryl Whitfield v. Markwayne Mullin, in his official capacity as Secretary of the Department of Homeland Security
Court
U.S. Court of Appeals for the Ninth Circuit
Judge
M. Margaret McKeown (Bill Clinton, 1998); N. Randy Smith (George W. Bush, 2007); Holly A. Thomas (Joe Biden, 2022)
Date Decided
October 16, 2026
Docket No.
25-5220
Topics
Preliminary Injunctions; Rehabilitation Act; Remote Work; En Banc Review
Source
Read the full opinion

Background

Daryl Whitfield, a U.S. Customs and Border Protection import specialist with service-related disabilities, sought permission to work remotely full time. After CBP began requiring import specialists to return to the office full time in March 2025, Whitfield sued under the Rehabilitation Act and requested a preliminary injunction barring enforcement of the in-person requirement.

The district court denied preliminary relief after treating Whitfield’s request as a mandatory injunction and concluding that he had not shown the law and facts clearly favored him. A Ninth Circuit panel reversed, reasoning that fully remote work was the status quo when Whitfield began challenging CBP’s policies, so he sought an ordinary prohibitory injunction. The panel remanded for application of the circuit’s sliding-scale test, under which a plaintiff may raise serious questions on the merits if the balance of hardships tips sharply in his favor and the remaining requirements are met.

The government petitioned for rehearing en banc. It did not challenge the panel’s classification of the requested injunction as prohibitory, but asked the full court to reconsider whether the Ninth Circuit’s serious-questions test remains valid after Supreme Court decisions addressing preliminary-injunction standards.

The Court’s Holding

The Ninth Circuit denied rehearing en banc because a majority of the non-recused active judges did not vote in favor of rehearing. The order therefore left the panel disposition and its remand instructions in place. It did not decide whether Whitfield was entitled to a preliminary injunction, whether the hardships tipped sharply in his favor, or whether his Rehabilitation Act claim raised serious questions on the merits.

Judge Bress, joined by nine judges, dissented. He argued that the serious-questions test improperly lowers the merits threshold required by Winter v. Natural Resources Defense Council and is inconsistent with Starbucks Corp. v. McKinney, which rejected a preliminary-injunction standard that reduced the movant’s burden. He also emphasized a post-Winter circuit split and maintained that the case was a suitable vehicle for resolving the issue.

Judge VanDyke, joined by Judges Bumatay and Tung, separately dissented. In addition to agreeing with Judge Bress, he criticized the Ninth Circuit’s rule that a three-judge panel may depart from circuit precedent in light of later Supreme Court authority only when the two are clearly irreconcilable. He urged Supreme Court review of both that rule and the circuit’s serious-questions test.

Key Takeaways

  • The denial of rehearing en banc leaves intact the panel’s direction that the district court reconsider Whitfield’s request under the Ninth Circuit’s sliding-scale standard for prohibitory injunctions.
  • The court did not award Whitfield an injunction or resolve the merits of his Rehabilitation Act reasonable-accommodation claim.
  • The dissents argued that Supreme Court precedent requires an independent showing of likely success on the merits and does not permit a strong balance of hardships to substitute for that showing.

Why It Matters

The order preserves, for now, the Ninth Circuit’s serious-questions route to preliminary relief. Litigants in the circuit may continue to invoke that approach when they can show that the balance of hardships tips sharply in their favor, along with likely irreparable harm and consistency with the public interest.

The ten-judge dissent highlights continuing disagreement over whether that test survives the Supreme Court’s recent preliminary-injunction decisions. The dispute may invite further Supreme Court review because it concerns both the threshold for obtaining extraordinary relief and the circumstances in which appellate panels may treat circuit precedent as displaced by intervening Supreme Court authority.

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