FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 4 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF WASHINGTON; STATE OF No. 25-7157 CALIFORNIA; STATE OF COLORADO; D.C. No. STATE OF CONNECTICUT; STATE OF 2:25-cv-01228-KKE

DELAWARE; STATE OF ILLINOIS;

STATE OF MAINE; STATE OF

MARYLAND; STATE OF

MASSACHUSETTS; STATE OF OPINION

MICHIGAN; STATE OF NEW MEXICO;

STATE OF NEW YORK; STATE OF

NEVADA; STATE OF OREGON; STATE

OF RHODE ISLAND; STATE OF

WISCONSIN,

Plaintiffs - Appellees,

v.

UNITED STATES DEPARTMENT OF

EDUCATION; LINDA MCMAHON, in her official Capacity as United States Secretary of Education,

Defendants - Appellants.

Appeal from the United States District Court for the Western District of Washington Kymberly K. Evanson, District Judge, Presiding

Submitted December 2, 2025 San Francisco, California

Before: Richard C. Tallman, Jay S. Bybee, and Gabriel P. Sanchez, Circuit Judges. Per Curiam Opinion Plaintiff-Appellees are 16 states who sued for declaratory and injunctive

relief after the United States Department of Education sent notices discontinuing

multi-year grants supporting mental health programs benefitting elementary and

secondary schools. On October 27, 2025, the district court granted Plaintiff States’

motion for a preliminary injunction, finding them likely to succeed on the merits of

their claim that the grant discontinuations were arbitrary and capricious under the

Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. Defendant-

Appellants U.S. Department of Education and Secretary of Education Linda

McMahon (“the Government”) now move for an emergency stay of the district

court’s preliminary injunction. For the reasons discussed herein, we deny the

motion.

LEGAL STANDARD

When deciding a motion for a stay pending appeal, we consider the Nken

factors: “(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) (citation modified) (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

2 25-7157 first two factors.” Cmty. Legal Servs. in E. Palo Alto v. U.S. Dep’t of Health &

Hum. Servs., 137 F.4th 932, 937 (9th Cir. 2025) (quoting Nken, 556 U.S. at 434–

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

circumstances justify” issuance of the stay. Nken, 556 U.S. at 433–34.

I.

The Government has not made a strong showing it is likely to succeed on the

merits of its claims that the district court lacks jurisdiction over this action. See

Gov’t Mot. for Emergency Stay, Dkt. 7 at 8–18.

A.

The Tucker Act vests exclusive jurisdiction in the Court of Federal Claims

over any claim against the United States founded “upon any express or implied

contract with the United States.” 28 U.S.C. § 1491. It “‘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)). See also Nat’l Insts. of Health (NIH) v. Am. Pub.

Health Ass’n, 145 S. Ct. 2658 (2025); Dep’t of Educ. v. California, 604 U.S. 650

(2025).

The Government has not made a strong showing that Plaintiff States’ claims

fall within the Tucker Act’s scope. Plaintiff States’ grants remain fully funded

3 25-7157 until December 31, 2025, and they make no claim that they are automatically

entitled to grant continuances. See Order Denying Mot. to Dismiss, ECF No. 190

at 17. Plaintiff States reconfirmed at oral argument that they are not entitled to

continued funding unless the Secretary of Education affirmatively decides to

continue their grants. Instead, their APA claims seek vacatur of the

discontinuation decisions, which take effect on December 31, 2025. Plaintiff

States allege that the discontinuation decisions are unlawful under the

Department’s own governing regulation, 34 C.F.R. § 75.253, its statutory

obligation to engage in notice-and-comment rulemaking under the General

Education Provisions Act, 20 U.S.C. §§ 1221e-4, 1232(a), (d), and its obligation to

provide reasoned explanations for its actions under the APA, 5 U.S.C. § 706(2)(A).

The relief sought in this action—vacatur of the allegedly unlawful

discontinuation decisions so the Secretary can make new decisions in accordance

with Plaintiff States’ theory of the law—does not cause any grant to be renewed

because grant continuances are not automatic. See 34 C.F.R. § 75.253. As the

Government acknowledged at oral argument, funding to grantees during this

calendar year is not at issue in this action and has not been cut off or disturbed.

Accordingly, the Government has not shown a strong likelihood that Plaintiff

States’ claims fall within the Court of Federal Claims’ jurisdiction because

Plaintiff States have not suffered nor sought any monetary damages. See

4 25-7157 California, 604 U.S. at 651 (“[T]he APA’s limited waiver of immunity does not

extend to orders ‘to enforce a contractual obligation to pay money.’” (quoting

Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002)); NIH,

145 S. Ct. at 2658 (discussing how the district court lacks jurisdiction to “order

relief designed to enforce any ‘obligation to pay money’ pursuant to [ ] grants”);

accord Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343–44

(Fed. Cir. 2008) (requiring plaintiffs “to identify a substantive source of law that

creates the right to recovery of money damages against the United States” to

establish Tucker Act jurisdiction).

The Government relies on NIH and California to argue that the Tucker Act

bars the district court from hearing Plaintiff States’ claims. But in California and

NIH, those plaintiffs explicitly sought, and the district courts ordered, the

immediate payment of past-due grant obligations and the continued payment of

ongoing obligations based on midyear grant terminations. See California, 604 U.S.

at 650; NIH, 145 S. Ct. at 2658. We do not construe the district court’s

preliminary injunction here to order payment of any funds; rather, we read the

order to merely freeze funds at issue until the Department makes a revised

continuation or discontinuation determination or wins on the merits of its claims.

See Preliminary Injunction Order, ECF No. 193 at 24 (“Plaintiff States do not

request an order requiring Defendants to continue the Grants.”).

5 25-7157 Because Plaintiff States’ claims seek purely prospective relief regarding

multiyear grant discontinuations that do not take effect until December 31, 2025—

and vacatur would not result in the automatic reinstatement or continuance of those

grants or the payment of any money to grantees—the Government has not

demonstrated a strong showing of success on the merits of its Tucker Act

jurisdictional claim.

B.

Nor has the Government made a strong showing on the merits of its claim

that the discontinuation decisions are committed to agency discretion and are

therefore unreviewable under the APA. See 5 U.S.C. § 701(a)(2); see also Lincoln

v. Vigil, 508 U.S. 182, 193 (1993) (holding “as long as the agency allocates funds

from a lump-sum appropriation to meet permissible statutory objectives,

§ 701(a)(2) gives the courts no leave to intrude”).

Unlike Lincoln, where the lump-sum appropriation covered all the agency’s

activities and established no specific programs, see 508 U.S. at 193–94, the

appropriation statute at issue here, the Bipartisan Safer Communities Act, Pub. L.

No. 117-159, 136 Stat. 1313, 1342 (2022), explicitly specifies the two grant

programs at issue in this action. Moreover, the Act does not commit broad

discretion to the Department, unlike other cases in which the Supreme Court has

found agency action committed to discretion by law. See Webster v. Doe, 486 U.S.

6 25-7157 592, 600 (1988); Heckler v. Chaney, 470 U.S. 821, 828–38 (1985). Finally, the

Department is constrained by its own regulations, including 34 C.F.R. § 75.253,

which provide meaningful standards for the court to apply to review

discontinuation decisions. See Thakur v. Trump, 148 F.4th 1096, 1105 (9th Cir.

2025). That 34 C.F.R. § 75.253(a)(5) requires “a determination from the Secretary

that continuation of the project is in the best interest of the Federal government”

does not preclude judicial review because we “routinely treat discretion-laden

standards as providing ‘law to apply.’” Perez Perez v. Wolf, 943 F.3d 853, 862

(9th Cir. 2019).

II.

The Government also has not demonstrated it will be irreparably injured

absent a stay. Because the district court’s injunction does not result in the

disbursement of any funds, the Government has not demonstrated it will be

irreparably harmed by the payment of monies that the Government cannot recover.

See, e.g., NIH, 145 S. Ct. at 2658; California, 604 U.S. at 650.

The Government argues that the funds at issue will lapse and revert to the

Treasury if not obligated by December 31, 2025. Even if that would constitute an

irreparable harm, courts have the power “to order that funds be held available

beyond their statutory lapse date if equity so requires.” Connecticut v. Schweiker,

684 F.2d 979, 997 (D.C. Cir. 1982); see also Wilson v. Watt, 703 F.2d 395, 403

7 25-7157 (9th Cir. 1983) (directing the district court to exercise that power). Further, “in the

appropriations context, Congress has expressly authorized courts to suspend the

lapse of budget authority while lawsuits play out.” Goodluck v. Biden, 104 F.4th

920, 928 (D.C. Cir. 2024); see 31 U.S.C. § 1502(b) (“A provision of law requiring

that the balance of an appropriation or fund be returned to the general fund of the

Treasury at the end of a definite period does not affect the status of lawsuits or

rights of action involving the right to an amount payable from the balance.”)

The district court is moving expeditiously to resolve the merits of these

claims. It has set the summary judgment hearing for December 11, 2025, and the

parties convey that the district court intends to issue a decision before the end of

the month. Under these circumstances, we see no basis to grant an emergency stay

of the preliminary injunction. We express no view on the merits of Plaintiff States’

claims.

EMERGENCY MOTION FOR ADMINISTRATIVE STAY DENIED.

8 25-7157