Whitfield: Rehearing Denied After a Remote-Work Injunction Remand

In Whitfield v. Mullin, No. 25-5220, the Ninth Circuit denied rehearing en banc on October 16, 2026, leaving in place a panel’s remand of a federal employee’s remote-work accommodation dispute. The panel had required the district court to reconsider an injunction request under the standard for a prohibitory injunction. The published rehearing order includes two dissents challenging circuit injunction doctrine. Those dissents explain the disagreement; the operative order denied rehearing.

The disputed return-to-office policy followed an earlier accommodation dispute

Daryl Whitfield worked as a Customs and Border Protection import specialist in the Los Angeles/Long Beach office. Before the pandemic, he performed in-person merchandise examinations one day each week. Import specialists worked remotely between March 2020 and April 2022. The agency then reinstated one office day weekly and, in March 2025, required full-time in-person work. May 5 memorandum, pages 1–2.

Whitfield had military-service-connected disabilities and sought full-time remote work as an accommodation. He began challenging the attendance change on March 2, 2022, before CBP reinstated an in-office requirement. The opinion describes accommodation requests, reconsideration requests and administrative complaints over the following years. He filed suit without counsel on May 19, 2025, alleging Rehabilitation Act accommodation, interactive-process and retaliation claims, along with a Title VII race claim. His emergency-relief motion rested on the Rehabilitation Act accommodation and interactive-process claims. May memorandum, pages 2–3.

The district court denied preliminary relief after applying the heightened standard for a mandatory injunction. It found that Whitfield had not made the required merits showing. Judge Bress’s later dissent recounts that CBP had offered accommodations including a return to one office day per week, which the district court considered in assessing likelihood of success. October order, pages 6–7. He appealed, and the panel reversed and remanded on May 5, 2026. The later rehearing proceeding concerned the panel’s legal instructions rather than a final judgment resolving the employment claims.

The date the controversy began determined the relevant status quo

The panel distinguished a mandatory injunction, which orders affirmative action beyond maintaining the status quo, from a prohibitory injunction preserving it. Under the framework it applied, the status quo meant the last uncontested state before the controversy. Whitfield began contesting the in-office policy while the fully remote arrangement was still in place in March 2022. The panel therefore treated the requested protection as prohibitory. May memorandum, pages 4–5.

That reasoning made the history more important than the latest instruction to return to the office. It was not enough to start the comparison with the attendance policy in force when the lawsuit was filed. The earlier objection and the work arrangement preceding it explained why the heightened mandatory-injunction standard was the wrong starting point in this case.

The panel remanded for the ordinary injunction analysis

The panel identified the Winter factors: likelihood of success, irreparable harm, the balance of equities and the public interest. It also described the Ninth Circuit’s sliding-scale approach, under which serious questions on the merits may suffice when hardships tip sharply toward the applicant and the other required factors are met. When the government is a party, the equities and public-interest factors merge. May memorandum, pages 3–4.

The panel did not decide whether Whitfield had actually established serious merits questions or whether hardships tipped sharply his way. It returned those questions to the district court under the prohibitory-injunction framework. This express remand boundary matters: The appellate disposition corrected the standard; the district court still had to apply it to the evidence. May memorandum, page 5.

The rehearing request challenged the sliding scale

The October 16 order records that a judge requested an en banc vote and that a majority of the non-recused active judges did not vote for rehearing. The petition was denied. The May memorandum is an unpublished disposition under Ninth Circuit Rule 36-3; the October document is a published rehearing order accompanied by dissents. The different documents should be identified separately when discussing the case. October 16 order, pages 1–3.

Judge Bress’s dissent, joined by nine other judges, argued that the serious-questions approach conflicts with the Supreme Court’s Winter and Starbucks decisions and with decisions from other circuits. He considered the difference between a likelihood-of-success showing and a lesser serious-questions showing consequential, especially because the district court had already found the stronger merits showing absent. The dissent also rejected the argument that this case was a poor vehicle for examining the circuit rule. October order, pages 4–13.

As the dissent explains, the government’s rehearing petition challenged the sliding scale rather than the panel’s classification of the requested injunction as prohibitory. That distinction keeps the disagreement focused: The judges opposing denial wanted the court to revisit what merits showing applies after classification, rather than simply restore the district court’s mandatory-injunction analysis. October order, pages 6–7, 12–13.

A second dissent challenged how panels address intervening Supreme Court law

Judge VanDyke, joined by Judges Bumatay and Tung, joined Judge Bress and wrote separately about the Ninth Circuit’s Miller v. Gammie framework, 335 F.3d 889, 893 (9th Cir. 2003). He argued that its “clearly irreconcilable” threshold gives circuit precedent too much protection when later Supreme Court decisions undermine it. His discussion reached beyond accommodation disputes and urged Supreme Court intervention. These were reasons for dissenting from denial of rehearing, rather than a new rule adopted by the court. October order, pages 14–18.

What the record teaches about an emergency accommodation request

The useful employment question is specific: What arrangement existed before the dispute, when did the employee first contest a change, and what relief is now requested? The accommodation requests, policy announcements and earlier objections can establish a chronology that a current return-to-office notice alone does not show. The medical and job-duty evidence then addresses the separate merits and harm inquiries.

For a federal employee considering a similar request, administrative requirements, the actual accommodation history and current controlling injunction law all need review. The separate practical guide focuses on assembling that issue-specific timeline. The Whitfield documents explain why a court’s choice of standard can require remand while leaving the employee’s entitlement to relief for further decision.