Ninth Circuit defers to agencies on process, but draws a line at content-based speech rules

Four rulings, one dividing line

Read together, four Ninth Circuit decisions draw a consistent line. When the dispute is about how an agency runs a program, or who gets to sue over it, the court leaves the government room to act. When a law singles out speech because of its content or its speaker, the court applies the strictest test and, in the California case before it, blocks the law while the case continues. m:…2169 m:…8177

The contrast matters because the same court produced both outcomes in the same window. Seattle's ordinance requiring app-based worker deactivation disclosures survived a preliminary challenge, while California's employer-speech law did not. The difference was not the subject matter. It was the mechanism: a disclosure rule for commercial speech on one side, and a penalty tied to discussing political or religious topics on the other. m:…8961 m:…2169

Where the government kept its discretion

In the wild horse case, the court affirmed summary judgment in favor of the Secretary of the Interior and other federal officials. The Wild Horse Act requires the Bureau of Land Management to remove excess animals as promptly as logistically and reasonably possible, but the court held that the law does not require the bureau to set a specific time frame for removal actions. The bureau has discretion to condition the timing of those actions on humane treatment, cost-efficiency, and ecological balance, and the immediacy requirement in the law does not apply to maintenance actions and their attendant conditions. m:…8177

The Diversity Visa case turned on a different gatekeeping question: standing. The court granted the government's emergency motion for a stay pending appeal of a preliminary injunction. Red Eagle Law, the court held, is not within the zone of interests protected by the Diversity Visa Program statute, which does not rely on legal services for applicants, and the firm lacked Article III standing because its alleged injury was speculative. The program is intended to encourage immigration, not generate revenue for law firms, and Red Eagle had not joined any prospective visa applicants to the suit. The court also distinguished the case from Past Bay Sanctuary Covenant, because the asylum statute in that case expressly contemplated access to pro bono legal services. m:…3805

The underlying dispute is narrow and procedural. The State Department failed to open the lottery registration period for the 2027 Diversity Visa Program, and the district court ordered the department to announce the registration period by October 29, 2026. The stay pauses that injunction while the appeal proceeds, and the court noted that the government bears the burden of showing that circumstances justify a stay pending appeal. Nothing in the decision resolves how the registration period itself should run. m:…3805

Where speech changed the outcome

Seattle's App-Based Workers Deactivation Rights Ordinance survived its early challenge. The court affirmed the district court's denial of a preliminary injunction against the ordinance, which requires network companies to inform app-based workers in writing of their deactivation policies. Those policies must be reasonably related to the company's safe and efficient operations. The court applied the Zauderer standard to the ordinance's regulation of commercial speech and held that the ordinance is not unconstitutionally vague, because it provides fair notice to a person of ordinary intelligence. m:…8961

Two limits in that ruling are worth noting. Judge Bennett dissented in part, arguing that the ordinance compels speech and should be subject to intermediate scrutiny rather than the standard the majority applied. And the Office of Labor Standards is prohibited from enforcing the prohibition on unwarranted deactivations until June 1, 2027. The ordinance stands for now, but its enforcement teeth arrive later, and the dissent signals where a future challenge may aim. m:…8961

California SB 399 failed the test Seattle's ordinance passed. The court affirmed the district court's preliminary injunction against the law, holding that it is facially content-based because it applies only when an employer discusses political or religious topics, and speaker-based because it is triggered only by speech communicating the employer's opinion. Strict scrutiny therefore applies. The court also held that the captive audience doctrine does not justify content-based restrictions on nongovernmental speech in a nongovernmental setting. The law imposes a civil penalty of 500 dollars per employee per violation, and Western Growers Association has standing to challenge it. The court did not reach the industry groups' preemption claim under the National Labor Relations Act. m:…2169

What this means for regulated employers

The practical takeaway is about drafting, not ideology. A rule that tells a company what it must disclose, and ties that disclosure to its own operations, fared better here than a rule that penalizes an employer for raising a topic. Disclosure framed as commercial information, with a fair-notice standard, survived early review. A penalty triggered by the viewpoint or topic of employer speech did not. That distinction should shape how any employer, platform, or agency writes its next rule, and how challengers frame their next complaint. m:…8961 m:…2169

The deference cases point the other way for litigants. Suing over the pace of an agency program, or suing as a business affected only indirectly by a program meant for someone else, faces a steep climb in this circuit. The wild horse ruling gives the administering agency room on timing, and the visa ruling closes the courthouse door to a plaintiff whose injury the court calls speculative. Those are preliminary and procedural postures, not final judgments on the merits of the underlying programs, but they set the terms on which the next round will be fought. m:…8177 m:…3805