FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 14 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

COMMUNITY LEGAL SERVICES IN No. 25-2808 EAST PALO ALTO; SOCIAL JUSTICE D.C. No. COLLABORATIVE; AMICA CENTER 3:25-cv-02847-AMO

FOR IMMIGRANT RIGHTS; ESTRELLA

DEL PASO; FLORENCE IMMIGRANT

AND REFUGEE RIGHTS PROJECT;

GALVESTON-HOUSTON IMMIGRANT ORDER

REPRESENTATION PROJECT;

IMMIGRANT DEFENDERS LAW

CENTER; NATIONAL IMMIGRANT

JUSTICE CENTER; NORTHWEST

IMMIGRANT RIGHTS PROJECT;

ROCKY MOUNTAIN IMMIGRANT

ADVOCACY NETWORK; VERMONT

ASYLUM ASSISTANCE PROJECT,

Plaintiffs - Appellees,

v.

UNITED STATES DEPARTMENT OF

HEALTH AND HUMAN SERVICES;

UNITED STATES DEPARTMENT OF

THE INTERIOR; OFFICE OF REFUGEE

RESETTLEMENT,

Defendants - Appellants.

Appeal from the United States District Court for the Northern District of California Araceli Martinez-Olguin, District Judge, Presiding Before: William A. Fletcher, Consuelo M. Callahan, and Lucy H. Koh, Circuit Judges. Order by Judge Koh Dissent by Judge Callahan

KOH, Circuit Judge:

To protect unaccompanied children in immigration proceedings from the

risks of “mistreatment, exploitation, and trafficking,” the Trafficking Victims

Protection Reauthorization Act of 2008 (“TVPRA”), 8 U.S.C. § 1232, directs that

the Department of Health and Human Services (“HHS”) “shall ensure, to the

greatest extent practicable,” that unaccompanied children in immigration custody

receive legal representation. Id. § 1232(c)(5). To carry out this obligation, the

Office of Refugee Resettlement (“ORR”) promulgated the “Foundational Rule”

which states that “ORR shall fund legal service providers to provide direct

immigration legal representation for certain unaccompanied children, subject to

ORR’s discretion and available appropriations.” 45 C.F.R. § 410.1309(a)(4). Since

2012, and as recently as March 15, 2025, Congress has consistently appropriated

funds to ensure compliance with the TVPRA’s statutory mandate. See Full-Year

Continuing Appropriations and Extensions Act, 2025, Pub. L. No. 119-4, Div. A

Tit. I Sec. 1101(8), 139 Stat. 9, 11 (2025); Further Consolidated Appropriations

Act, 2024, Pub. L. 118-47, Div. D Tit. I, 138 Stat. 460, 664–665 (2024);

Consolidated Appropriations Act, 2012, Pub. L. 112-74, Div. F, Tit. II, 125 Stat.

2 786, 1077 (2011); S. Rep. 118-84, at 169. In this matter, the district court

preliminarily enjoined Defendants HHS, ORR and the Department of the Interior

(“DOI”) (collectively, the “Government”) from withdrawing government-provided

funding for counsel to represent unaccompanied children in immigration

proceedings. The Government appealed the issuance of the preliminary injunction

and now moves to stay the injunction while this appeal is pending.

When deciding a motion for a stay pending appeal, the court considers

“(1) whether the stay applicant has made a strong showing that he is likely to

succeed on the merits; (2) whether the applicant will be irreparably injured absent a

stay; (3) whether issuance of the stay will substantially injure the other parties

interested in the proceeding; and (4) where the public interest lies.” Nken v.

Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776

(1987)). “The first two factors . . . are the most critical,” and the court will address

the last two factors only once the applicant has satisfied the first two factors. Id. at

434–35. “The party requesting a stay bears the burden of showing that the

circumstances justify” issuance of the stay. Id. at 433–34.

We conclude the Government has shown neither a likelihood of success on

the merits nor irreparable injury absent a stay and accordingly deny the

3 Government’s motion.1

I.

The Government offers two reasons why it believes it is likely to succeed on

the merits. First, the Government argues the Tucker Act, 28 U.S.C. § 1491,

“impliedly forbids” plaintiffs’ Administrative Procedure Act (“APA”) claims and

thus the district court lacked jurisdiction. Second, the Government argues that its

decision to completely defund direct legal services for unaccompanied children

constitutes an unreviewable exercise of agency discretion. As explained below, the

Government has not made “a strong showing that [it] is likely to succeed on the

merits” of either argument. Nken, 556 U.S. at 434 (quoting Hilton, 481 U.S. at

776).

A.

The APA “embodies [a] basic presumption of judicial review to one

‘suffering legal wrong because of agency action.’” Abbott Lab’ys v. Gardner, 387

U.S. 136, 140–41 (1967) (quoting 5 U.S.C. § 702). The APA generally waives

sovereign immunity and permits a challenge to agency action unless “any other

statute that grants consent to suit expressly or impliedly forbids the relief which is

1 Because the Government failed to satisfy the first two stay factors, we need not reach the two remaining stay factors. See Nken, 556 U.S. at 434–35.

4 sought.” 5 U.S.C. § 702.2 The Government argues that the Tucker Act “impliedly

forbids” plaintiffs’ suit because plaintiffs’ claims sound in contract and

accordingly can only be brought in the Court of Federal Claims (if at all). This

argument is unlikely to succeed for two reasons.

First, contrary to the Government’s argument, plaintiffs’ APA claims are

based on the Government’s statutory and regulatory violations, not any

government contract. In fact, no contract exists between plaintiffs and the

Government. Instead, the Government has entered into a nationwide agreement

with an organization called Acacia, who in turn subcontracts with legal service

providers such as plaintiffs.

“[T]he Tucker Act . . . ‘impliedly forbid[s]’ an APA action seeking

injunctive and declaratory relief only if that action is a ‘disguised’ breach-of-

contract claim.” United Aeronautical Corp. v. U.S. Air Force, 80 F.4th 1017, 1026

(9th Cir. 2023) (quoting Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C. Cir.

1982)). In making this determination, we “look[] to (1) ‘the source of the rights

upon which the plaintiff bases its claims’ and (2) ‘the type of relief sought (or

appropriate).’” Id. (quoting Doe v. Tenet, 329 F.3d 1135, 1141 (9th Cir. 2003)).

2 The APA also does not apply to suits that either (a) seek “money damages,” 5 U.S.C. § 702; or (b) where “other adequate remed[ies]” to review the agency action exist, id. § 704. On appeal, the Government does not argue that either of these limitations on APA review apply here.

5 “If rights and remedies are statutorily or constitutionally based, then district

courts have jurisdiction; if rights and remedies are contractually based then only

the Court of Federal Claims does . . . .” Id. (emphasis in original); see also

Ferreiro v. United States, 501 F.3d 1349, 1353 n.3 (Fed. Cir. 2007) (“An order

compelling the government to follow its regulations is equitable in nature and is

beyond the jurisdiction of the Court of Federal Claims.”).

Here, plaintiffs seek to enforce compliance with statutes and regulations, not

any government contract. The TVPRA provides that the Government “shall

ensure, to the greatest extent practicable . . . that all unaccompanied alien

children . . . have counsel to represent them in legal proceedings or matters and

protect them from mistreatment, exploitation, and trafficking.” 8 U.S.C.

§ 1232(c)(5) (emphasis added). The Foundational Rule states that “ORR shall fund

legal service providers to provide direct immigration legal representation for

certain unaccompanied children, subject to ORR’s discretion and available

appropriations.” 45 C.F.R. § 410.1309(a)(4) (emphasis added). Seeking to ensure

compliance with statutory and regulatory commands is a matter beyond the scope

of the Tucker Act’s exclusive jurisdiction.

In evaluating the merits, the district court found plaintiffs were likely to

succeed in showing a violation of both of these provisions. Congress has

appropriated substantial funds specifically to carry out the TVPRA for over a

6 decade and as recently as 2025. See, e.g., Full-Year Continuing Appropriations and

Extensions Act, 2025, Pub. L. No. 119-4, Div. A Tit. I Sec. 1101(8), 139 Stat. 9,

11 (2025); Further Consolidated Appropriations Act, 2024, Pub. L. 118-47, Div. D

Tit. I, 138 Stat. 460, 664–665 (2024). The district court found that the Government

elected to withhold all congressionally authorized funding for direct legal

representation, even though such funding was necessary to ensure all

unaccompanied children remained represented. It was “undisputed that

appropriations for direct representation remain available,” and that the Government

had “evidenced no effort to ensure pro bono counsel.” Indeed, the district court

found the Government made its decision “with no supplemental plan to ensure

unaccompanied children have legal counsel” at all, let alone “to the greatest extent

practicable.” On appeal, the Government contests the district court’s jurisdiction

but does not dispute any of the aforementioned findings. Plaintiffs accordingly are

likely to establish the requisite violations of law to support their APA claims

irrespective of any contractual violation.

Second, as the Government concedes, subcontractors such as plaintiffs do

not even have the right to sue under the Tucker Act. The Tucker Act provides the

Court of Federal Claims with jurisdiction to hear claims based “upon any express

or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). Consistent

with the statute’s plain text, “[t]o maintain a cause of action pursuant to the Tucker

7 Act that is based on a contract, the contract must be between the plaintiff and the

government.” Cienega Gardens v. United States, 194 F.3d 1231, 1239 (Fed. Cir.

1998) (quoting Ransom v. United States, 900 F.2d 242, 244 (Fed. Cir. 1990)).

Subcontractors, who have not entered into contracts with the Government,

generally have no right to sue under the Tucker Act, and the Court of Federal

Claims has no jurisdiction to hear their suit. See id.; Erickson Air Crane Co. of

Wash., Inc. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984).

The Government concedes (and indeed affirmatively argues) that the Court

of Federal Claims lacks jurisdiction to hear plaintiffs’ claims because “it is ‘a

hornbook rule that, under ordinary government prime contracts, subcontractors do

not have standing to sue the government under the Tucker Act.’” But the

Government nonetheless argues the Tucker Act “impliedly forbids” plaintiffs’

APA claims because “subcontractors have fewer legal rights than prime

contractors.” This argument lacks merit.

The Tucker Act’s “exclusive jurisdiction” has been construed “to impliedly

forbid contract claims against the Government from being brought in district court

under the waiver in the APA.” Crowley Gov’t Servs., Inc. v. Gen. Servs. Admin., 38

F.4th 1099, 1106 (D.C. Cir. 2022) (cleaned up) (quoting Perry Cap. LLC v.

Mnuchin, 864 F.3d 591, 618–19 (D.C. Cir. 2017)). But “[t]here cannot be

exclusive jurisdiction under the Tucker Act if there is no jurisdiction under the

8 Tucker Act.” Tootle v. Sec’y of Navy, 446 F.3d 167, 177 (D.C. Cir. 2006). For this

reason, the D.C. Circuit has “categorically reject[ed] the suggestion that a federal

district court can be deprived of jurisdiction by the Tucker Act when no

jurisdiction lies in the Court of Federal Claims.” Id. at 176; see also Crowley, 38

F.4th at 1109 (“Because a plaintiff could not bring this type of tort action in [the

Court of Federal Claims] in the first place, that Court would not have exclusive

jurisdiction of them.”).

The result requested by the Government would mean that no court has

jurisdiction to hear plaintiffs’ claims. Not only is this result contrary to common

sense, but it also conflicts with the “strong presumption favoring judicial review of

administrative action” that is embodied in the APA. Mach Mining, LLC v.

E.E.O.C., 575 U.S. 480, 486 (2015) (internal quotation marks omitted); see Abbott

Lab’ys, 387 U.S. at 140–41.

The Supreme Court’s recent decision in Department of Education v.

California, 145 S. Ct. 966 (2025), does not change this conclusion. Department of

Education involved a claim to enforce grant agreements that the plaintiffs had

entered into directly with the government and thus “to enforce a contractual

obligation to pay money.” Id. at 968 (citation omitted). The Supreme Court held

that this claim fell within the Tucker Act’s grant of exclusive jurisdiction and

accordingly suggested that the suit must be brought in the Court of Federal Claims.

9 See id. (“But, as we have recognized, the APA’s limited waiver of immunity does

not extend to orders to enforce a contractual obligation to pay money along the

lines of what the District Court ordered here. Instead, the Tucker Act grants the

Court of Federal Claims jurisdiction over suits based on any express or implied

contract with the United States.” (internal citations and quotation marks omitted)).

Department of Education has no application where, as here, the claims sound in

statute, rather than contract.

Accordingly, the Government has not shown a likelihood of success on its

Tucker Act argument.

B.

The APA does not apply where “agency action is committed to agency

discretion by law.” 5 U.S.C. § 701(a)(2). This exception has been construed

“narrowly” to apply only in “those rare circumstances where the relevant statute is

drawn so that a court would have no meaningful standard against which to judge

the agency’s exercise of discretion.” Weyerhaeuser Co. v. U.S. Fish & Wildlife

Serv., 586 U.S. 9, 23 (2018) (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)).

The Supreme Court has identified certain categories of agency decisions that have

traditionally been regarded as committed to agency discretion and are, accordingly,

“presumptively unreviewable.” Heckler v. Chaney, 470 U.S. 821, 832–33 (1985)

(holding agency decision whether to initiate an enforcement action was

10 presumptively unreviewable). Even where an action falls within the class of

actions traditionally committed to agency discretion, “judicial review is available

where there are ‘meaningful standards to cabin the agency’s otherwise plenary

discretion.’” Physicians for Soc. Resp. v. Wheeler, 956 F.3d 634, 643 (D.C. Cir.

2020) (quoting Drake v. FAA, 291 F.3d 59, 71 (D.C. Cir. 2002)).

The Government argues that the decision to cancel the program is committed

to agency discretion by law. Its argument is based entirely upon the Supreme

Court’s decision in Lincoln v. Vigil, 508 U.S. 182 (1993). In that case, the Indian

Health Service (the “Service”) was provided with a single lump-sum appropriation

that covered all of the agency’s activities. Id. at 185. The Service was authorized,

but not required, to “‘expend such moneys as Congress may from time to time

appropriate, for the benefit, care, and assistance of the Indians,’ for the ‘relief of

distress and conservation of health,’” including on “Indian mental-health care.” Id.

at 184 (quoting 25 U.S.C. § 13). The Service had historically exercised this

discretion to establish the “Indian Children’s Program,” which provided a variety

of medical services to Indian children, but subsequently decided to cancel that

program. Id. at 184–85. Plaintiffs brought an APA claim challenging the Service’s

decision not to fund the program. Id.

The Supreme Court held that the Service’s “allocation of funds from a lump-

sum appropriation is [a type of] administrative decision traditionally regarded as

11 committed to agency discretion” and was, accordingly, presumptively

unreviewable. Id. at 192. The Court explained that “allocation of funds from a

lump-sum appropriation requires ‘a complicated balancing of a number of factors

which are peculiarly within [agency] expertise.’” Id. at 193 (quoting Heckler, 470

U.S. at 831). Because the relevant statutes did “not so much as mention the

Program” that was cancelled, let alone require it, the Court found “[t]he decision to

terminate the Program was committed to the Service’s discretion” by law. Id. at

193–94.

The rule announced in Lincoln has no application where, as here, the agency

fails to carry out a program that is required by statute. Lincoln made clear that “an

agency is not free simply to disregard statutory responsibilities” and “Congress

may always circumscribe agency discretion to allocate resources by putting

restrictions in the operative statutes.” Id. at 193; see also Los Coyotes Band of

Cahuilla & Cupeno Indians v. Jewell, 729 F.3d 1025, 1038 (9th Cir. 2013) (noting

that Lincoln applies only “absent some statutory constraint on the agency’s

discretion”). Where Congress establishes a mandatory program, in the sense that

“Congress directs (rather than merely authorizes) the agency to conduct” certain

activities, the rule in Lincoln has no application. U.S. Gov’t Accountability Off.,

GAO-16-464SP, Principles of Federal Appropriations Law 2-37 & n.40 (4th Ed.

2016); U.S. Gov’t Accountability Off., GAO-17-797SP, Principles of Federal

12 Appropriations Law 3-30 (4th Ed. 2017 Rev.) (“When Congress appropriates

money to implement a program, and implementation of the program is mandatory,

the agency may not use the appropriated amounts to terminate the program.”); see,

e.g., Shawnee Tribe v. Mnuchin, 984 F.3d 94, 100 (D.C. Cir. 2021) (explaining that

where “Congress has ‘circumscribe[d] agency discretion to allocate resources by

putting restrictions in the operative statute[]’” there is “no presumption of non-

reviewability” (quoting Lincoln, 508 U.S. at 193)); Ramah Navajo Sch. Bd. v.

Babbitt, 87 F.3d 1338, 1347 (D.C. Cir. 1996) (distinguishing Lincoln where

“Congress intended the [statute] to limit the Secretary’s discretion in funding

matters”). Rather, in such circumstances the Executive has no authority to withhold

the funds appropriated by Congress or otherwise refuse to comply with the law.

See City & Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1232 (9th Cir. 2018)

(“Aside from the power of veto, the President is without authority to thwart

congressional will by canceling appropriations passed by Congress.”); In re Aiken

Cnty., 725 F.3d 255, 266 (D.C. Cir. 2013) (Kavanaugh, J.) (“Prosecutorial

discretion does not include the power to disregard other statutory obligations that

apply to the Executive Branch, such as statutory requirements to issue rules, or to

pay benefits, or to implement or administer statutory projects or programs.”

(internal citation omitted)); see also Memorandum from William H. Rehnquist,

Assistant Attorney General, Office of Legal Counsel, to Edward L. Morgan,

13 Deputy Counsel to the President (Dec. 1, 1969) (“While there have been instances

in the past in which the President has refused to spend funds appropriated by

Congress for a particular purpose, we know of no such instance involving a statute

which by its terms sought to require such expenditure.”).

Here, the TVPRA provides that HHS “shall ensure, to the greatest extent

practicable . . . , that all unaccompanied alien children . . . have counsel to

represent them in legal proceedings.” 8 U.S.C. § 1232(c)(5) (emphasis added); see

also id. § 1232(c)(1) (HHS “shall establish policies and programs to ensure that

unaccompanied alien children in the United States are protected from traffickers”

(emphasis added)). This statute does not say that HHS “may” provide certain

services, as was the case in Lincoln. Instead, the use of “shall” plainly imposes a

mandatory duty on HHS to take steps to ensure “all” such children have counsel.

See Alabama v. Bozeman, 533 U.S. 146, 153 (2001) (“The word ‘shall’ is

ordinarily the language of command.” (internal quotation marks and citation

omitted)). Similarly, the Foundational Rule states that “ORR shall fund legal

service providers to provide direct immigration legal representation for certain

unaccompanied children, subject to ORR’s discretion and available

appropriations.” 45 C.F.R. § 410.1309(a)(4) (emphasis added). These affirmative

obligations stand in stark contrast with those at issue in Lincoln, where “no statute

or regulation even mention[ed] the Program” that was cancelled, let alone required

14 that the Executive carry out the program. 508 U.S. at 190.

To be sure, HHS is only required to provide counsel “to the greatest extent

practicable” and the Foundational Rule similarly grants the agency some discretion

in the procurement of counsel for unaccompanied children, but that in no way

defeats judicial review. Whatever discretion the agency may have in evaluating

what “the greatest extent practicable” may be, this phrase certainly is not the same

as “to no extent at all.” See Calvert Cliffs’ Coordinating Comm., Inc. v. U. S.

Atomic Energy Comm’n, 449 F.2d 1109, 1114 (D.C. Cir. 1971) (explaining that the

fact the agencies’ statutory duties were “qualified by the phrase ‘to the fullest

extent possible’” did “not provide an escape hatch for footdragging agencies” and

did “not make [the statute’s] requirements somehow ‘discretionary’”). APA

Section 701(a)(2) has “never been thought to put all exercises of discretion beyond

judicial review.” ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1071 (9th Cir. 2015). To

the contrary, “the APA itself commits final agency action to [judicial] review for

‘abuse of discretion.’” Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 720

(9th Cir. 2011) (quoting 5 U.S.C. § 706(a)(2)(A)). Review is prohibited only where

“there is truly no law to apply.” Jajati v. U.S. Customs & Border Prot., 102 F.4th

1011, 1014 (9th Cir. 2024) (quoting Perez Perez v. Wolf, 943 F.3d 853, 861 (9th

Cir. 2019)). And courts routinely find far less determinate language than that at

issue here establishes a sufficient standard to permit review. See, e.g., Citizens to

15 Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 411 (1971) (determination

whether “no feasible and prudent alternative” existed was reviewable); Pac. Nw.

Generating Coop. v. Bonneville Power Admin., 596 F.3d 1065, 1075 (9th Cir.

2010) (requirement that agency act “consistent with sound business principles”

provided meaningful standard for review); City of Los Angeles v. U.S. Dep’t of

Com., 307 F.3d 859, 869 n.6 (9th Cir. 2002) (requirement that an agency Secretary

“shall” act “if he considers it feasible” provided a meaningful standard for review).

Accordingly, the Government has not shown a likelihood of success on this

argument either.

II.

An applicant for a stay pending appeal must show that a stay is necessary to

avoid likely irreparable injury to the applicant while the appeal is pending. See

Nken, 556 U.S. at 434. “[S]imply showing some possibility of irreparable injury” is

insufficient. Id. (internal quotation marks omitted). Rather, “[t]he minimum

threshold showing for a stay pending appeal requires that irreparable injury is

likely to occur during the period before the appeal is likely to be decided.” Al Otro

Lado v. Wolf, 952 F.3d 999, 1007 (9th Cir. 2020) (citing Leiva-Perez v. Holder,

640 F.3d 962, 968 (9th Cir. 2011)).

The Government has not met its irreparable injury burden. Despite waiting

nearly a week to file this emergency motion to stay the preliminary injunction, the

16 Government provides no evidence to support its claims of irreparable injury. Cf. Al

Otro Lado, 952 F.3d at 1007 (rejecting “a weak showing” of harm where the

government had the opportunity to gather evidence in support of its claims).

Rather, the Government asserts evidence is unnecessary in this case because the

injunction requires the disbursement of taxpayer funds that may never be

recovered, and the injunction harms the separation of powers. We disagree.

First, the Government has made no showing that dispersing congressionally

appropriated funds for statutorily mandated purposes would cause irreparable harm

in this case. Since 2012, and as recently as March 15, 2025, Congress has

consistently appropriated funds to ensure compliance with the TVPRA’s statutory

mandate. See, e.g., Full-Year Continuing Appropriations and Extensions Act,

2025, Pub. L. No. 119-4, Div. A Tit. I Sec. 1101(8), 139 Stat. 9, 11 (2025); Further

Consolidated Appropriations Act, 2024, Pub. L. 118-47, Div. D Tit. I, 138 Stat.

460, 664–665 (2024); Consolidated Appropriations Act, 2012, Pub. L. 112-74,

Div. F, Tit. II, 125 Stat. 786, 1077 (2011); S. Rep. 118-84, at 169. These funds are

statutorily earmarked to carryout the TVPRA. Pursuant to the TVPRA, HHS “shall

ensure, to the greatest extent practical . . . , that all unaccompanied alien children . .

. have counsel to represent them in legal proceedings or matters and protect them

from mistreatment, exploitation, and trafficking.” 8 U.S.C. § 1232(c)(5). The

President is required to spend these funds for the purpose of carrying out the

17 TVPRA and only for that purpose. See 31 U.S.C. § 1301(a) (“Appropriations shall

be applied only to the objects for which the appropriations were made except as

otherwise provided by law.”); City & Cnty. of San Francisco, 897 F.3d at 1232

(“[T]he President does not have unilateral authority to refuse to spend the funds.”

(quoting Aiken, 725 F.3d at 261 n.1)). The district court concluded that the

Government is likely now shirking a statutory obligation that has been in place for

over a decade. The Government “cannot suffer harm from an injunction that

merely ends an unlawful practice.” Rodriguez v. Robbins, 715 F.3d 1127, 1145

(9th Cir. 2013). The Government has failed to demonstrate that spending

congressionally appropriated funds as directed by Congress causes irreparable

injury.

The Supreme Court’s decision in Department of Education is not to the

contrary. In assessing the risks of injury to the government there, the Supreme

Court relied upon a declaration from a government official asserting the difficulties

inherent in recovering disbursed funds under the specific grant agreements in that

case. See 145 S. Ct. at 969 (citing App. To Application To Vacate Order 15a,

17a.). No such evidence has been presented here. To the contrary, the

Government’s motion fails to cite any evidence at all. Absent any showing from

the Government, we cannot conclude that irreparable injury “is the more probable

or likely outcome” here. Al Otro Lado, 952 F.3d at 1007 (quoting Leiva-Perez, 640

18 F.3d at 968).

Second, we reject the notion that the injunction’s effect on the “separation of

powers” qualifies as irreparable harm at the stay stage. See Washington v. Trump,

847 F.3d 1151, 1168 (9th Cir. 2017) (“To the extent that the Government claims

that it has suffered an institutional injury by erosion of the separation of powers,

that injury is not ‘irreparable.’ It may yet pursue and vindicate its interests in the

full course of this litigation.”); see also E. Bay Sanctuary Covenant v. Trump, 932

F.3d 742, 778 (9th Cir. 2018) (finding a separation of powers argument inadequate

to demonstrate irreparable harm). In denying a motion to stay in another case, we

concluded that the government had not established irreparable harm because “if we

were to adopt the government’s assertion that the irreparable harm standard is

satisfied by the fact of executive action alone, no act of the executive branch

asserted to be inconsistent with a legislative enactment could be the subject of a

preliminary injunction. That cannot be so.” Doe #1 v. Trump, 957 F.3d 1050, 1059

(9th Cir. 2020). The Government does not acknowledge this line of precedent,

much less attempt to distinguish it.

III.

For the reasons set forth above, we deny the Government’s request for a stay

pending appeal.

19

FILED

Community Legal Services in East Palo Alto, et al. v. United States Department of Health and Human Services, et al., No. 25-2808 MAY 14 2025

MOLLY C. DWYER, CLERK

CALLAHAN, Circuit Judge, dissenting: U.S. COURT OF APPEALS

For the reasons provided in the dissent from rehearing en banc that I joined

in the prior appeal in this case, I respectfully dissent. See Cmty. Legal Servs. in E.

Palo Alto v. United States Dep’t of Health & Hum. Servs., No. 25-2358, --- F.4th --

--, ----, 2025 WL 1203167, at *3-4 (9th Cir. Apr. 25, 2025) (Bumatay, J., and

VanDyke, J., dissenting from the denial of rehearing en banc). Even if the district

court had jurisdiction under the Administrative Procedure Act, the decision to

terminate funding—or the decision of who to fund—is committed to agency

discretion by law under 5 U.S.C. § 701(a)(2). See 8 U.S.C. § 1232(c)(5)

(qualifying the provision of legal services “to the greatest extent practicable”). I

would therefore grant the government’s stay motion.