Key Points

  • The Ninth Circuit denied the government's petition for rehearing en banc in Whitfield v. Mullin, a Rehabilitation Act case brought by a CBP import specialist seeking to keep working remotely.
  • The unpublished panel decision had held that Whitfield sought a prohibitory, not mandatory, injunction and directed the district court to apply the circuit's 'serious questions' sliding-scale test on remand.
  • Judge Bress, joined by nine judges, dissented, arguing the 'serious questions' test is inconsistent with Winter v. NRDC and Starbucks Corp. v. McKinney and conflicts with the Fourth and Tenth Circuits, while the Second and Seventh Circuits have retained it.
  • Judge VanDyke, joined by Judges Bumatay and Tung, separately dissented, urging the Supreme Court to take the case and also overturn Miller v. Gammie's 'clearly irreconcilable' rule for following intervening Supreme Court precedent.

The U.S. Court of Appeals for the Ninth Circuit on Oct. 16 refused to reconsider a rule that lets judges grant preliminary injunctions to plaintiffs who have not shown they are likely to win. Ten of its judges dissented, saying the rule cannot be squared with Supreme Court precedent.

The court denied the federal government's petition for rehearing en banc in a disability-accommodation suit by a U.S. Customs and Border Protection employee. The order said the petition failed to win a majority of the non-recused active judges.

Judge Bress wrote the principal dissent, joined by Judges Callahan, Bennett, R. Nelson, Bade, Collins, Lee, Bumatay, VanDyke and Tung. Citing the Supreme Court's 2024 decision in Starbucks Corp. v. McKinney, he wrote, "Starbucks thus confirms that our 'serious questions' test is invalid."

The denial leaves intact the circuit's "sliding scale test," which a 2022 Ninth Circuit decision said "allows a strong showing on the balance of the hardships to compensate for a lesser showing of likelihood of success." The dissenters said the test defies Winter v. Natural Resources Defense Council, the 2008 decision requiring plaintiffs to show likely success, and puts the circuit on the wrong side of a split among the federal appeals courts.

The plaintiff, Daryl Whitfield, is a CBP import specialist with disabilities related to his prior military service, according to Judge Bress's account of the panel decision. Before 2020 he worked in the office one day a week. CBP suspended in-office work from March 2020 to April 2022, restored the one-day schedule, then required full-time in-person work in March 2025. The defendant is Markwayne Mullin, sued in his official capacity as secretary of homeland security.

Whitfield first asked to work remotely full time as an accommodation in March 2022. In May 2025, acting without a lawyer, he sued under the Rehabilitation Act, alleging that CBP failed to provide reasonable accommodations or engage in the required interactive process. He sought a preliminary injunction barring the agency from requiring him to return to in-person work.

The district court denied the motion. It treated the request as one for a "mandatory injunction," an order requiring a defendant to act rather than preserve the status quo, so Whitfield had to show that the law and facts "clearly favor" his position. The court found he was unlikely to succeed because CBP had offered accommodations, including a return to his old one-day-a-week schedule.

A panel of Judges M. Margaret McKeown, N. Randy Smith and Holly A. Thomas reversed in an unpublished decision on May 5, 2026. Because fully remote work was the status quo in March 2022, when Whitfield began challenging CBP's policies, the panel held that "Whitfield's request is one for an ordinary prohibitory injunction."

The panel then told the district court to apply the sliding scale on remand. It wrote that "under our ordinary sliding-scale approach for prohibitory injunctions, Whitfield needed only establish that a 'serious question' existed as to whether he was denied a reasonable accommodation under the Rehabilitation Act if the balance of hardships tips 'sharply' in his favor." The panel did not decide whether he met that standard.

The government's petition did not challenge the mandatory-injunction ruling but asked the full court to reevaluate the serious-questions precedent. The panel appointed pro bono counsel for Whitfield, whose response, Judge Bress wrote, "did not attempt to defend our 'serious questions' test on the merits" and argued that the case was a poor vehicle for the question.

Judge Bress traced the test to pre-2008 circuit law, which let plaintiffs show either likely success and a "possibility" of irreparable injury, or serious questions plus hardships tipping sharply in their favor. Winter rejected the first route as "too lenient." In 2011, in Alliance for the Wild Rockies v. Cottrell, the Ninth Circuit held that the second route survived. That determination, Judge Bress wrote, "was incorrect even then given Winter's plain rejection of a modified preliminary injunction test."

He wrote that the Second and Seventh Circuits had kept the test after Winter, while the Fourth and Tenth Circuits had rejected it. The D.C. Circuit wrote in 2025 that "it is questionable that the sliding scale approach remains good law" after Winter. "The split of authority post-Winter is clear," Judge Bress wrote.

In Starbucks, the Supreme Court rejected a Sixth Circuit standard under which the National Labor Relations Board could win injunctions under Section 10(j) of the National Labor Relations Act by showing reasonable cause to believe unfair labor practices had occurred and that relief was just and proper, and could establish reasonable cause by showing that its legal theory was "substantial and not frivolous." The justices reasoned that the standard "substantively lowers the bar for securing a preliminary injunction." Judge Bress wrote that the Ninth Circuit's test "also substantively lowers the bar," noting that the circuit itself had described it as involving "a lesser showing of likelihood of success."

Because a serious question "is less determinate and more open to interpretation," he wrote, the test "broadens the circumstances in which district courts may issue preliminary injunctions." He added that the test is of particular concern "given the influx of emergency appeals we are seeing from the grant of preliminary injunctions."

Judge Bress rejected Whitfield's vehicle argument. Given the district court's finding that Whitfield "cannot show a likelihood of success on the merits," he wrote, overruling the test might let the panel simply affirm by treating the mandatory-injunction error as harmless.

Judge VanDyke, joined by Judges Bumatay and Tung, wrote a separate dissent aimed at Miller v. Gammie, a 2003 Ninth Circuit decision. Under Miller, three-judge panels must follow circuit precedent unless it is "clearly irreconcilable" with a later Supreme Court ruling. Judge VanDyke wrote that the rule kept panels from conforming the serious-questions test to Starbucks, and that its effect "is both obvious and obviously wrong." He added, "The Supreme Court should not have to keep trimming the same poison ivy one tiny branch at a time."

The denial leaves the panel's remand in place. That remand sends Whitfield's motion back to the district court for further consideration under what the panel called "the Winter sliding-scale prohibitory injunction standard." Judge VanDyke wrote that "the Supreme Court should take up this case to correct our circuit's erroneous 'serious questions' rule," and urged it to overturn Miller's standard as well.