Woonasquatucket River Watershed Council v. USDA

United States Court of Appeals

For the First Circuit

No. 25-1428

WOONASQUATUCKET RIVER WATERSHED COUNCIL; EASTERN RHODE ISLAND

CONSERVATION DISTRICT; GREEN INFRASTRUCTURE CENTER; NATIONAL

COUNCIL OF NONPROFITS; CHILDHOOD LEAD ACTION PROJECT; CODMAN

SQUARE NEIGHBORHOOD DEVELOPMENT CORPORATION,

Plaintiffs, Appellees,

v.

U.S. DEPARTMENT OF AGRICULTURE; BROOKE ROLLINS, in the official

capacity as Secretary of Agriculture; U.S. DEPARTMENT OF ENERGY;

CHRIS WRIGHT, in the official capacity as Secretary of Energy;

U.S. DEPARTMENT OF THE INTERIOR; DOUG BURGUM, in the official

capacity as Secretary of the Interior; U.S. ENVIRONMENTAL

PROTECTION AGENCY; LEE ZELDIN, in the official capacity as

Administrator of the Environmental Protection Agency; U.S.

OFFICE OF MANAGEMENT AND BUDGET; RUSSELL VOUGHT, in the official

capacity as Director of the Office of Management and Budget;

KEVIN HASSETT, in the official capacity as Director of the

National Economic Council; U.S. DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT; SCOTT TURNER, in the official capacity as Secretary

of Housing and Urban Development,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary S. McElroy, U.S. District Judge]

Before

Barron, Chief Judge,

Lipez and Rikelman, Circuit Judges.

Sean R. Janda, with whom Brett A. Shumate, Assistant Attorney

General, Sara Miron Bloom, First Assistant U.S. Attorney, Eric D. McArthur, Deputy Assistant Attorney General, Daniel Tenny, and

Brian J. Springer were on brief, for appellants.

Kevin E. Friedl, with whom Jessica Anne Morton, Robin F.

Thurston, and Democracy Forward Foundation were on brief, for

appellees.

Vincent M. Nolette, Amy E. Turner, and Sabin Center for

Climate Change Law, Columbia Law School on brief for the U.S.

Conference of Mayors as amicus curiae supporting appellees.

Andrea Moon Park and Massachusetts Law Reform Institute on

brief for Jane Addams Senior Caucus, et al. as amici curiae

supporting appellees.

August 7, 2026

BARRON, Chief Judge. In this appeal, several federal

agencies and agency heads challenge a district court order

preliminarily blocking their actions to categorically freeze

billions of dollars in federal financial assistance appropriated

under the Infrastructure Investment and Jobs Act and the Inflation

Reduction Act of 2022. We affirm in part and vacate in part.

I.

A.

In 2021, Congress enacted the Infrastructure Investment

and Jobs Act ("IIJA"). Pub. L. No. 117-58, 135 Stat. 429 (2021).

The IIJA authorized appropriations for transportation and

infrastructure projects, including federal highways, highway

safety programs, and transit programs. In the following year,

Congress enacted the Inflation Reduction Act of 2022 ("IRA"). Pub.

L. No. 117-169, 136 Stat. 1818 (2022). The IRA provided funding

to increase energy security and reduce greenhouse gas emissions.

Various federal agencies administer grant programs pursuant to the

IRA and the IIJA.

On the first day of his second term in office, President

Trump issued Executive Order No. 14154, titled "Unleashing

American Energy." 90 Fed. Reg. 8353 (Jan. 20, 2025). We will

refer to this executive order as the "Unleashing Executive Order."

Section 2 of the Unleashing Executive Order announced

nine "polic[ies] of the United States" related to energy

- 3 -production, use, and regulation.1 Id. § 2. Section 7, titled

"Terminating the Green New Deal," ordered:

All agencies shall immediately pause the

disbursement of funds appropriated through the

[IRA] or the [IIJA] . . . and shall review

their processes, policies, and programs for

issuing grants, loans, contracts, or any other

financial disbursements of such appropriated

funds for consistency with the law and the

polic[ies] outlined in . . . this order.

Id. § 7(a).

The Unleashing Executive Order also directed "all agency

heads" to "submit a report to the Director of the [National

Economic Council]" ("NEC") and "Director of [the Office of

Management and Budget]" ("OMB") detailing the findings of their

review. Id. It further provided that "[n]o funds" appropriated

through the IRA or the IIJA were to be disbursed "until the

1 Those policies are: (1) "to encourage energy exploration

and production on Federal lands and waters"; (2) "to establish our position as the leading producer and processor of non-fuel

minerals"; (3) "to protect the United States's economic and

national security and military preparedness by ensuring that an

abundant supply of reliable energy is readily accessible"; (4) "to ensure that all regulatory requirements related to energy are

grounded in clearly applicable law"; (5) "to eliminate the

'electric vehicle . . . mandate' and promote true consumer

choice"; (6) "to safeguard the American people's freedom to choose from a variety of goods and appliances"; (7) "to ensure that the

global effects of a rule, regulation, or action shall, whenever

evaluated, be reported separately from its domestic costs and

benefits"; (8) "to guarantee that all executive departments and

agencies . . . provide opportunity for public comment and

rigorous, peer-reviewed scientific analysis"; and (9) "to ensure

that no Federal funding be employed in a manner contrary to the

principles outlined in this section, unless required by law."

Unleashing Executive Order § 2.

- 4 -Director of OMB and Assistant to the President for Economic Policy

have determined that such disbursements are consistent with any

review recommendations they have chosen to adopt." Id.

The next day, Matthew J. Vaeth, Acting Director of OMB,

and Kevin Hassett, Assistant to the President for Economic Policy

and Director of NEC, issued a memorandum regarding the Unleashing

Executive Order to the heads of federal departments and agencies.2

We will refer to this memorandum as the "Unleashing Memorandum."

The Unleashing Memorandum stated that "[t]he directive"

in the Unleashing Executive Order "requires agencies to

immediately pause disbursement of funds appropriated under the

[IRA] or the [IIJA]." "This pause," the Unleashing Memorandum

explained, "only applies to funds supporting programs, projects,

or activities that may be implicated by the polic[ies] established

in [s]ection 2" of the Unleashing Executive Order.

The Unleashing Memorandum also informed recipients that,

"[f]or the purposes of implementing section 7 of the [Unleashing

Executive Order], funds supporting the 'Green New Deal' refer to

any appropriations for objectives that contravene the policies

established in section 2" of that order. "Agency heads may

2Memorandum from Matthew J. Veath, Acting Dir., Off. of Mgmt.

& Budget, & Kevin Hassett, Assistant to the President for Econ.

Pol'y & Dir., Nat'l Econ. Council, to Heads of Dep'ts & Agencies

(Jan. 21, 2025) [https://perma.cc/Y7KB-784F].

- 5 -disburse funds as they deem necessary after consulting with [OMB],"

the Unleashing Memorandum concluded.

B.

In March 2025, six nonprofit organizations filed a suit

in the U.S. District Court for the District of Rhode Island that

challenged various alleged final agency actions pertaining to the

Unleashing Memorandum, including the issuance of the memorandum

itself. The organizations are Woonasquatucket River Watershed

Council; Eastern Rhode Island Conservation District; Green

Infrastructure Center; Childhood Lead Action Project; Codman

Square Neighborhood Development Corporation; and National Council

of Nonprofits, a membership organization that filed suit on its

members' behalf. We will refer to the plaintiffs, collectively,

as the "Nonprofits."

The Nonprofits' operative complaint3 alleged that the

individual nonprofit plaintiffs as well as other organizations

that were members of the National Council of Nonprofits had "been

awarded grants and other financial assistance through the IRA and

IIJA" either as direct recipients or subgrantees of direct

recipients. The complaint went on to allege that, following the

issuance of the Unleashing Memorandum, there had been a "freeze on

funding appropriated by the IRA and IIJA," which resulted in the

3 The operative complaint is the Nonprofits' amended complaint.

- 6 -individual nonprofit plaintiffs and member organizations of the

National Council of Nonprofits being denied financial assistance

pursuant to their grant awards and subawards.

The complaint named the following defendants: OMB, the

Director of OMB, and the Director of NEC (collectively, the "OMB

Defendants"), as well as five other agencies and their respective

agency heads (collectively, the "Agency Defendants"). Those other

agencies are the Department of Energy ("DOE"), the Environmental

Protection Agency ("EPA"), the Department of Housing and Urban

Development ("HUD"), the Department of the Interior ("DOI"), and

the Department of Agriculture ("USDA"). We will refer to the

defendants collectively as the "Government."

The complaint alleged that the OMB Defendants' directive

in the Unleashing Memorandum to withhold financial assistance

appropriated under the IRA and the IIJA, as well as the Agency

Defendants' "blanket freeze[s]" of that assistance "en masse and

on a non-individualized basis," violated the Administrative

Procedure Act ("APA"). The complaint alleged that the directive

in the Unleashing Memorandum, which was issued by the Director of

OMB and the Director of NEC, constitutes final agency action. It

also alleged that each of the agency-level decisions to

categorically freeze the funds in question constitutes a final

agency action. It further alleged that the challenged final agency

actions are arbitrary and capricious, in excess of statutory

- 7 -authority, and contrary to law. See 5 U.S.C. § 706(2)(A), (C).

The Nonprofits sought declaratory and injunctive relief, including

"a stay under 5 U.S.C. § 705."

The Nonprofits thereafter filed a motion for a

preliminary injunction. To secure such relief, a party must show

"(1) a substantial likelihood of success on the merits, (2) a

significant risk of irreparable harm if the injunction is withheld,

(3) a favorable balance of hardships, and (4) a fit (or lack of

friction) between the injunction and the public interest."

NuVasive, Inc. v. Day, 954 F.3d 439, 443 (1st Cir. 2020) (quoting

Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003)).

To make the required showing, the Nonprofits submitted

declarations that attested that the individual nonprofits and

member organizations of the National Council of Nonprofits had not

received expected disbursements of IRA or IIJA financial

assistance or were unable to access the online payment portal for

their grants. The Nonprofits then contended that the challenged

directive by the OMB Defendants and the challenged decisions by

the Agency Defendants caused them irreparable harm. As support,

they pointed to the declarations attesting that those agency

actions led to the cutoff of funds that would force -- and in some

cases, already had forced -- the individual nonprofits and

National Council of Nonprofits members to reduce hiring, "furlough

- 8 -or lay off staff, shutter[] planned projects[,] and curtail[]"

their work.

The District Court granted the motion over the

Government's opposition. It also issued a memorandum opinion

explaining its reasoning.

The District Court first addressed a number of threshold

issues. It concluded that the Nonprofits adequately demonstrated

subject matter jurisdiction under Article III of the U.S.

Constitution. See U.S. Const. art. III, § 2, cl. 1. It also

rejected the Government's argument that the Nonprofits' APA claims

were barred by "[t]he pendency of a prior pending action in [a]

federal court" that assertedly involved the same claims. Sutcliffe

Storage & Warehouse Co. v. United States, 162 F.2d 849, 851 (1st

Cir. 1947) (quoting 1 Moore's Federal Practice 237 (1st ed. 1938)).

That case had been filed in the U.S. District Court for the

District of Columbia. See Nat'l Council of Nonprofits v. Off. of

Mgmt. & Budget, 775 F. Supp. 3d 100 (D.D.C.), appeal filed,

No. 25-5148 (D.C. Cir. 2025).

The District Court then addressed the Government's

arguments based on the APA itself. It rejected the Government's

argument that the Nonprofits had failed to identify any discrete

agency actions by the defendants and so were bringing a

"programmatic attack," which the APA does not permit. See Norton

v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). The District

- 9 -Court held instead that the Nonprofits had identified seven such

actions: "OMB and the NEC Director's decisions to issue the

[Unleashing Memorandum] mandating a pause (one action from each)

and [the Agency Defendants'] decisions to follow that guidance by

summarily freezing IIJA and IRA funds (one action from each of

the[] five agencies)."

In addition, the District Court rejected the

Government's argument that the Nonprofits' APA claims were

essentially contract claims and therefore had to be brought under

the Tucker Act in the U.S. Court of Federal Claims. See 28 U.S.C.

§ 1491(a). In rejecting this challenge to its statutory subject

matter jurisdiction, the District Court explained both that the

Nonprofits' APA claims did not depend on any contractual terms and

that they sought a remedy that, though it may result in the

disbursement of funds, was for prospective, equitable relief and

not money damages.

The District Court also concluded that the seven

challenged agency actions, in requiring the freezing of

already-awarded funds, likely were not "committed to agency

discretion by law." 5 U.S.C. § 701(a)(2). And, too, the District

Court concluded that they likely were final agency actions for

purposes of the APA. See id. § 704; Corner Post Inc. v. Bd. of

Governors of Fed. Rsrv. Sys., 603 U.S. 799, 808 (2024) (explaining

that a final agency action under the APA is one that "marks the

- 10 -consummation of the agency's decisionmaking process" and "by which

rights or obligations have been determined, or from which legal

consequences will flow" (citation modified)).

The District Court further determined that the

Nonprofits were likely to succeed in showing that the challenged

final agency actions violated the APA. It did so on the grounds

that the Nonprofits were likely to show that the challenged actions

are both "arbitrary and capricious" and in excess of statutory

authority.4 See 5 U.S.C. § 706(2)(A), (C).

Having determined that the Nonprofits satisfied the

"likelihood of success" factor of the test for obtaining a

preliminary injunction, the District Court went on to explain that

the balance of the equities under the remaining factors of that

test favored them as well. Finally, the District Court addressed

the scope of the preliminary injunction. It observed that the

"normal remedy" for unlawful agency action is vacatur, see 5 U.S.C.

§ 706(2), and it reasoned that a universal preliminary injunction

was therefore appropriate because "similarly situated

nonparties . . . should not be forced to suffer the harms [of the

likely unlawful agency actions] just because there was not enough

time or resources for them to join the suit."

4The District Court declined to reach the Nonprofits' claim

that the challenged agency actions are contrary to law under the

IRA, the IIJA, and regulations governing the administration of

federal awards. See 5 U.S.C. § 706(2)(A).

- 11 -The District Court's resulting order preliminarily

"ENJOINED" the Agency Defendants from "freezing, halting, or

pausing on a non-individualized basis the processing and payment

of [already-awarded] funding" appropriated under the IRA or the

IIJA and ordered them to "take immediate steps to resume the

processing, disbursement, and payment" of such funds and "to

release awarded funds previously withheld or rendered

inaccessible." The order also directed the OMB Defendants to

provide notice of the order to all the agencies that received the

Unleashing Memorandum, informing such agencies that "they may not

take any steps to implement, give effect to, or reinstate under a

different name the unilateral, non-individualized directives" in

the Unleashing Memorandum and they must "continue releasing any

disbursements on open awards that were paused due to or in reliance

on" the Unleashing Memorandum. Further, the order prohibited the

Government from "implementing, giving effect to, or reinstating

under a different name the directive in [the Unleashing Memorandum]

to unilaterally freeze awarded funding appropriated under" the IRA

or the IIJA.

The Government timely appealed.

II.

We start with a threshold issue: whether the Nonprofits

have shown, at this stage of the litigation, what they must to

establish that they have Article III standing. See Anversa v.

- 12 -Partners Healthcare Sys., Inc., 835 F.3d 167, 174 n.5 (1st Cir.

2016). "At the preliminary injunction stage, . . . the plaintiff

must make a 'clear showing' that she is 'likely' to establish each

element of standing." Murthy v. Missouri, 603 U.S. 43, 58 (2024)

(quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22

(2008)). The three elements of Article III standing are (1) an

injury-in-fact, (2) that is "fairly traceable" to the defendant's

challenged conduct, and (3) "that is likely to be redressed by a

favorable judicial decision." Conservation L. Found., Inc. v.

Acad. Express, LLC, 129 F.4th 78, 86 (1st Cir. 2025) (quoting

Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). Our review is

de novo. Id.

A.

The District Court determined that the individual

nonprofit plaintiffs had Article III standing to bring their

claims against the Agency Defendants after finding that they had

met their burden to show that they had suffered an injury-in-fact

traceable to the challenged conduct of each of those defendants.

The District Court explained that the Nonprofits showed both that

the Agency Defendants decided to "summarily freez[e] IIJA and IRA

funds" and that the individual nonprofit plaintiffs suffered

ongoing harms because of those decisions.

On appeal, the Government does not dispute the District

Court's determination that the individual nonprofit plaintiffs

- 13 -have met their burden to show that they have standing as to the

Agency Defendants that administer their grants. We agree that

they have done so.

The individual nonprofit plaintiffs alleged that they

were awarded IRA or IIJA grants by USDA, EPA, or HUD as either

direct grantees or subgrantees. They further alleged that they

had been harmed by the actions taken by these agencies to withhold

funds appropriated under those statutes.

For the direct grantees, these allegations suffice to

show that each suffered an injury-in-fact, see TransUnion LLC v.

Ramirez, 594 U.S. 413, 417 (2021), that is fairly traceable to the

challenged conduct, see Conservation L. Found., 129 F.4th at 90.

And there is no dispute that the requested relief would redress

these alleged injuries by precluding the Agency Defendants from

relying on the challenged decisions to impose the categorical

funding freezes.

For the subgrantees, the District Court found that they

did not receive their subgrant payments from the direct grantees

because of the challenged funding freezes, as nothing in the record

indicated that the direct grantees failed to pass on federal

financial assistance that they had received. Because this finding

is not clearly erroneous, we are satisfied that the individual

nonprofit plaintiffs that are subgrantees also have carried their

burden of showing that their injuries are traceable to the relevant

- 14 -Agency Defendants' decisions to impose the funding freezes.5 See

Dep't of Com. v. New York, 588 U.S. 752, 768 (2019) (finding

traceability satisfied based "on the predictable effect of

Government action on the decisions of third parties"). And, again,

there is no dispute that the requested relief would provide redress

to these plaintiffs.

B.

As to the individual nonprofit plaintiffs' standing to

bring their claims against the OMB Defendants, the Government does

not take issue with the District Court's determination that the

record supportably shows that the Agency Defendants relied on the

Unleashing Memorandum in adopting their categorical funding

freezes. The Government also does not challenge the District

Court's conclusion that the individual nonprofit plaintiffs

therefore demonstrated a causal connection between the Unleashing

Memorandum and their alleged injuries.

Given what the record shows, we see no reason for concern

either. So, here, too, we see no likely Article-III-standing bar,

given that the requested relief would provide redress.

5 We understand the individual nonprofits plaintiffs to have

each demonstrated standing as to the specific Agency Defendant

that they identify as administering their grant.

- 15 -C.

The Government has more to say about standing when it

comes to the National Council of Nonprofits. That organization

premises its standing on the standing of certain of the members

that it represents rather than on any injury that it has directly

suffered. To establish standing on that representative basis, the

National Council of Nonprofits must meet a three-part test. It

must show that (1) "its members would otherwise have standing to

sue in their own right;" (2) "the interests it seeks to protect

are germane to the organization's purpose;" and (3) "neither the

claim nor the requested relief requires the participation of

individual members in the lawsuit." Students for Fair Admissions,

Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 199

(2023) (quoting Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S.

333, 343 (1977)).

The Government does not dispute that the National

Council of Nonprofits would meet this test if it qualified as a

membership organization. It contends, however, that the

organization does not so qualify and therefore lacks what is often

referred to as organizational standing.

Relying on the Fifth Circuit's nearly three-decade-old

decision in Friends of the Earth, Inc. v. Chevron Chemical Co.,

129 F.3d 826 (5th Cir. 1997), the Government maintains that an

organization may assert standing on behalf of its members only if

- 16 -it explains "how its members direct or control the organization"

and presents "'indicia of membership' such as a 'clearly

articulated and understandable membership structure' with members

who 'elect[] the governing body.'" (Quoting id. at 829 (alteration

in original).) The Government then contends that the National

Council of Nonprofits has not done so.

In Students for Fair Admissions, however, the Supreme

Court rejected the Government's position about what a membership

organization must show to establish standing based on its asserted

members' standing. 600 U.S. at 200-01. The Court there explained

that the "indicia of membership" analysis on which the Government

now relies "has no applicability" when the group advancing

organizational standing is "a voluntary membership organization

with identifiable members." Id. at 201. So long as such a group

"has identified members and represents them in good faith," the

Court explained, no "further scrutiny" into its operation is

required. Id.

The National Council of Nonprofits has made that showing

here. Indeed, the Government does not suggest otherwise. Thus,

this ground for challenging the standing of the National Council

of Nonprofits fails.

That said, the National Council of Nonprofits also must

make the requisite showing under the three-part test for

establishing standing set forth above. But we conclude that it

- 17 -has, save for its claims pertaining to one of the Agency Defendants

insofar as it means to bring those claims against that defendant.

As to the first part of the three-part test, the National

Council of Nonprofits has identified members that receive

financial assistance from USDA, EPA, DOE, and DOI through grants

appropriated under the IRA and the IIJA. Because these members

include two of the individual nonprofit plaintiffs that we have

already determined have sufficiently demonstrated their standing

to bring their claims against these agencies as well as the OMB

Defendants, the National Council of Nonprofits has met its burden

as to the first part of the applicable standing test.6

In addition, the complaint alleges that the

organization's mission is to "support[] nonprofits in advancing

their missions." Therefore, the National Council of Nonprofits

also has satisfied the second part of that test, as the interests

6 Althoughthe Government submitted a declaration stating that

DOE had restored regular approval authority for disbursements of

obligated IRA and IIJA funds on February 24, 2025, a member of the National Council of Nonprofits responded with a declaration of its own, which indicated that claims for payment were not accepted by DOE until late March. Notably, the Government does not argue on

appeal that the National Council of Nonprofits is unlikely to

establish that, at the time the complaint was filed, DOE continued to categorically freeze disbursements for grants funded by the IRA or the IIJA. Nor does the Government advance any argument on

appeal that DOE's March payments moot the case. Cf. Fed. Bureau

of Investigation v. Fikre, 601 U.S. 234, 241 (2024) (stating that voluntary cessation of the challenged conduct can, on a proper

showing, moot the lawsuit).

- 18 -that the organization seeks to advance through this lawsuit are

germane to its purpose.

As to the test's third part, we again see no problem.

Given the nature of the APA claims and the universal relief sought

via those claims, we see no reason why the individual members of

the National Council of Nonprofits that have standing would need

to participate in the suit.

The only potential wrinkle is that the National Council

of Nonprofits has not identified any of its members that receive

financial assistance from HUD through grants appropriated under

the IRA or the IIJA. That is the only Agency Defendant, however,

for which no such showing has been made by this organization.

Thus, to the extent that the National Council of Nonprofits seeks

to represent its members in claims against HUD, it has not made

the requisite "clear showing" that any of its members "likely" has

an injury-in-fact that is traceable to that agency. Murthy, 603

U.S. at 58 (quoting Winter, 555 U.S. at 22). For that reason,

insofar as the National Council of Nonprofits seeks to bring claims

against HUD, we cannot conclude that it has established that it

has standing to bring them.

III.

We now turn to the Government's remaining challenges on

appeal to the District Court's decision to grant preliminary relief

- 19 -to the Nonprofits.7 The parties agree that, in assessing these

challenges, we must assess the District Court's decision under an

abuse of discretion standard. See Cent. Me. Power Co. v. Me.

Comm'n on Governmental Ethics & Election Pracs., 144 F.4th 9, 19

(1st Cir. 2025). The parties further agree that, under that

standard, we review questions of law de novo and factual findings

for clear error. Id. The parties also appear to agree on one

more thing -- that, in applying the abuse of discretion standard

in conducting our review, our focus must be on the four-part test

described above that determines whether an order granting

preliminary injunctive relief is appropriate. See NuVasive, 954

F.3d at 443. We follow the parties' lead.

7 As noted above, the District Court separately addressed an

issue concerning its statutory subject matter jurisdiction -- namely, whether the sovereign immunity of the

United States bars the Nonprofits' lawsuit from being brought in

federal district court insofar as the "essence" of their APA claims "is in contract." Am. Sci. & Eng'g, Inc. v. Califano, 571 F.2d

58, 63 (1st Cir. 1978). We agree with the District Court that the "essence" of the Nonprofits' claims is not contractual. Their APA claims do not turn on the terms of any contracts, and they sought APA remedies that included vacating the challenged agency actions. See 5 U.S.C. §§ 705-706. Notably, though, on appeal, the

Government frames the issue of sovereign immunity as one that

concerns the propriety of the scope of the relief that was ordered insofar as that relief "compel[s] continued payment of funds under grants" rather than whether the claims themselves are barred. In

light of this framing, we address this question about sovereign

immunity in Part IV, when we address the propriety of the scope of the relief that was ordered. See New York v. Trump, 171 F.4th 1,

26 n.11 (1st Cir. 2026).

- 20 -A.

With respect to the "likelihood of success" factor, the

Government advances a number of arguments as to why the Nonprofits

are not likely to succeed on their APA claims. We are not

persuaded.

1.

The Government first reprises its argument to the

District Court that the Nonprofits -- or, at least, some of

them -- impermissibly split their claims into two separate

lawsuits: the suit in the U.S. District Court for the District of

Rhode Island that gives rise to this appeal and a suit that was

brought by some of the same plaintiffs in the U.S. District Court

for the District of Columbia. See Nat'l Council of Nonprofits,

775 F. Supp. 3d 100. The Government rests this contention on the

established understanding that when "'actions involving the same

parties and similar subject matter are pending in different federal

district courts' and 'the overlap between the two suits is nearly

complete[,] . . . the usual practice is for the court that first

had jurisdiction to resolve the issues and the other court to

defer.'" Maldonado-Cabrera v. Anglero-Alfaro, 26 F.4th 523, 526

(1st Cir. 2022) (quoting TPM Holdings, Inc. v. Intra-Gold Indus.,

Inc., 91 F.3d 1, 4 (1st Cir. 1996)).

Under our precedent, though, "where the overlap between

[the] two suits is less than complete," the decision to defer "is

- 21 -made case by case, based on such factors as the extent of overlap,

the likelihood of conflict, the comparative advantage and the

interest of each forum in resolving the dispute." TPM Holdings,

91 F.3d at 4 (citation omitted). The Government does not dispute

that the "overlap" between the two cases here is less than

complete. Nonetheless, the Government points to several apparent

similarities that it contends show that the Nonprofits have split

their claims despite the lack of complete overlap. Those

similarities are shared counsel, overlapping plaintiffs,8 and

parallel allegations challenging "a categorical [funding] freeze

directed by OMB."

The only claims alleged in the suit before us are APA

claims, though, and each of them requires close analysis of the

specific agency action that is being challenged. Moreover, as the

District Court explained, those claims challenge the OMB

Defendants' "decisions to issue the [Unleashing Memorandum]

mandating a pause," "along with [the Agency Defendants'] funding

freezes arising from" it.

The lead plaintiff in the action filed in the District of

8

Columbia is the National Council of Nonprofits, and, in that

capacity, it seeks relief on behalf of its members. Nat'l Council of Nonprofits v. Off. of Mgmt. & Budget, 763 F. Supp. 3d 36, 44-46 (D.D.C. 2025). In their briefing to us, the Nonprofits acknowledge that four of the five individual nonprofit plaintiffs in the suit at hand are members of the National Council of Nonprofits.

- 22 -By contrast, as the District Court noted, the plaintiffs

in the District of Columbia case challenged a different OMB

directive to pause federal financial assistance, and they did not

challenge any separate agency funding freezes. See Nat'l Council

of Nonprofits, 775 F. Supp. 3d at 109-10, 124. Furthermore, the

memorandum challenged in the District of Columbia was withdrawn

(at least nominally), see id. at 110-11, 117-18, while the

Unleashing Memorandum was not.

We recognize that the OMB memorandum at issue in the

District of Columbia proceeding directed a "temporary pause" on

all activities related to obligating or disbursing federal

financial assistance that may be implicated by seven executive

orders issued in the first days of President Trump's second term

in office. See id. at 109-10. We also recognize that one of those

executive orders is the Unleashing Executive Order. Id. at 109.

Even still, an assessment of the lawfulness of the Agency

Defendants' actions taken pursuant to the Unleashing Executive

Order and Unleashing Memorandum (as well as of the lawfulness of

the Unleashing Memorandum itself) does not require an assessment

of whether the OMB directive challenged in the District of Columbia

lawsuit is lawful. Therefore, our resolution of the Nonprofits'

claims does not necessarily depend on the resolution of the same

issues as the plaintiffs' claims in the District of Columbia

lawsuit, or vice versa. Accordingly, we do not see how the

- 23 -pendency of the District of Columbia case suffices to show that

the District Court likely abused its discretion by entertaining

the Nonprofits' preliminary injunction motion. See TPM Holdings,

91 F.3d at 4 (holding that a New Hampshire district court did not

abuse its discretion by hearing a title dispute that implicated a

contract claim filed in Texas because resolution of the title

dispute did not require assessment of the merits of the contract

claim).

2.

The Government next argues that the Nonprofits are

unlikely to succeed on their APA claims because those claims fail

to challenge a final agency action within the meaning of that

statute. See 5 U.S.C. §§ 551(13) (defining agency action),

701(b)(2) (similar), 704 (authorizing judicial review of final

agency actions). The Government argues that the Nonprofits' claims

against the Agency Defendants advance only a "programmatic attack"

under the APA, which "the Supreme Court rebuffed in Norton [v.

Southern Utah Wilderness Alliance, 542 U.S. 55, 66-67 (2004)]"

precisely because the challenge there failed to take aim at any

discrete final agency action.

We recognized in New York v. Trump that "Norton does

make clear that the APA permits review of only discrete final

agency actions and precludes the kind of programmatic attack"

rejected by the Supreme Court in Lujan v. National Wildlife

- 24 -Federation, 497 U.S. 871 (1990). New York v. Trump, 171 F.4th 1,

18 (1st Cir. 2026) (citation modified). But we also explained in

New York that Norton goes on to clarify that the object of the

"programmatic attack" in Lujan -- the Bureau of Land Management's

(BLM) so-called "land withdrawal review program" -- "was not

itself an agency action." Id. (citation modified); see also Lujan,

497 U.S. at 890 (explaining that the term "'land withdrawal review

program' . . . does not refer to a single BLM order or regulation,

or even to a completed universe of particular BLM orders and

regulations").

That latter aspect of Norton is potentially significant

here. As we pointed out in New York, Lujan itself noted that a

"specific" agency action "apply[ing] some particular measure

across the board to all individual" actions "can of course be

challenged under the APA." New York, 171 F.4th at 18 (quoting

Lujan, 497 U.S. at 890 n.2). So, the key issue concerns whether

the Nonprofits are challenging only a broad program or instead

various discrete agency actions, each of which applies "across the

board."

The District Court determined that the Nonprofits'

complaint challenged the following seven specific

decisions -- each of which was undertaken by at least one of the

defendants: "OMB and the NEC Director's decisions to issue the

[Unleashing Memorandum] mandating a pause (one action from each)

- 25 -and [DOE], EPA, HUD, [DOI], and USDA's decisions to follow [the

Unleashing Memorandum] by summarily freezing IIJA and IRA funds

(one action from each of these five agencies)." The District Court

then determined that each of those decisions was likely an "agency

action" in its own right. We see no reason to disagree. See New

York, 171 F.4th at 16 (reviewing a finding of the existence of an

agency action for clear error).

To start, the District Court supportably found that each

Agency Defendant made the decision to impose a categorical, "across

the board" freeze of funding within its purview that had been

appropriated under the IRA and the IIJA. The District Court based

that factual finding on record evidence of memoranda, press

releases, and emails from the Agency Defendants.9

9 These

documents included: emails from USDA officers to grant

recipients explaining that "payments on contracts funded through

the [IRA] are currently on pause" and that reimbursement requests were rejected "due to the recent executive orders issued under the Trump Administration"; a memorandum from the Acting Chief

Financial Officer of EPA stating that "all disbursements for

unliquidated obligations funded by" the IRA or IIJA "are paused"; an email from EPA to a grant recipient stating that it "has paused all funding actions related to the [IRA] and the [IIJA]" to

implement the Unleashing Executive Order; a memorandum from the

Acting Secretary of DOE instructing that "[a]ll funding and

financial assistance activities . . . shall not be . . . approved, finalized, modified, or provided until a review of such takes

place"; an email from a DOI grant manager referring a grant

recipient to the Unleashing Memorandum "regarding the funding

pause" in response to the recipient's report that they could not

"draw" from their grant; and a declaration from a grant recipient attesting that the National Park Service, a subagency of DOI,

- 26 -The Nonprofits also entered into the record multiple

declarations from organizations that had been awarded IRA or IIJA

grants. Those declarations supportably demonstrated that the

organizations' grants had been frozen by the Agency Defendants

following the Unleashing Memorandum.

Taken together, this evidence supportably confirms that

each of the Agency Defendants made the decision to categorically

freeze IRA and IIJA funds in accordance with the Unleashing

Memorandum and the Unleashing Executive Order.10 And we agree with

the District Court's conclusion that each of those agency-level

"freeze" decisions also likely constitutes a final agency action

within the meaning of the APA. See Texas v. Biden, 597 U.S. 785,

793, 795, 808-09, 809 n.7 (2022) (holding that an agency memorandum

that "bound" agency staff by "forbidding them to continue" an

agency program was a final agency action).

communicated that grant recipients would not be able to draw down from grants "that include [IIJA] or IRA funding."

10 After the Government submitted its briefs in this appeal,

it filed a response letter under Federal Rule of Appellate

Procedure 28(j) asserting for the first time that the evidence is insufficient to support the District Court's finding that HUD

adopted an agency-wide policy summarily freezing funds appropriated under the IRA and the IIJA. But a party may not use

Rule 28(j) to raise new arguments that it failed to present in its briefs, Hernandez Lara v. Barr, 962 F.3d 45, 52 n.10 (1st Cir.

2020), and so, we do not consider this point further, see Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015) ("[W]e do not consider arguments for reversing a decision of a

district court when the argument is not raised in a party's opening brief.").

- 27 -The Government characterizes the District Court's

findings regarding the Agency Defendants' decisions to "freeze"

funding as having been based on "a hodgepodge of memos and emails."

But, even if that characterization were accurate, it would not

help the Government. Such evidence is not, by its nature,

incapable of sufficing to show that an agency has taken final

agency action. See New York, 171 F.4th at 11-12, 16 (considering

email correspondence to determine whether agency action

persisted); cf. Hisp. Affs. Project v. Acosta, 901 F.3d 378, 386

(D.C. Cir. 2018) (finding plausible final agency action based on

declarations of regulated parties' experiences); Venetian Casino

Resort, L.L.C., v. Equal Emp. Opportunity Comm'n, 530 F.3d 925,

929-31 (D.C. Cir. 2008) (identifying final agency action based on

unchallenged portion of statement of undisputed facts).

We also note that the Government does not deny the

Nonprofits' allegations that each of the Agency Defendants adopted

a policy to pause indiscriminately all funding under the IRA and

the IIJA that the agency administers. In fact, the sole

declaration that the Government submitted in opposition to the

Nonprofits' motion for a preliminary injunction acknowledged that

DOE had implemented a categorical pause of IRA and IIJA funding.

To be sure, the Government does contend that, even if

the evidence supportably shows that the challenged "freeze"

decisions were made by each of the Agency Defendants, the

- 28 -Nonprofits are still challenging "many individual decisions by

several agencies across a wide array of programs." Thus, the

Government argues, the Nonprofits are not challenging discrete

agency actions and are instead merely advancing a "programmatic

attack," which the APA prevents them from doing.

We explained in New York, however, that an

across-the-board decision by an agency can itself be a discrete

agency action. New York, 171 F.4th at 17-18; see also Lujan, 497

U.S. at 890 n.2 (clarifying that a "specific [agency action]

applying some particular measure across the board" can be an

identifiable final agency action for the purposes of APA review).

Indeed, in that case, we held that the plaintiffs were likely to

succeed in showing that a broad categorical freeze adopted by an

agency was itself a discrete agency action. New York, 171 F.4th

at 18. The Government does not explain why, given our decision in

New York, the identified agency-level "freeze" decisions

challenged here are any different. Thus, the

programmatic-attack-based argument fares no better here than it

did in New York.

That leaves only the two other asserted agency actions

to address in relation to the contention that the Nonprofits are

not challenging "final" agency actions -- the decisions by the OMB

Defendants to issue the directive in the Unleashing Memorandum to

withhold categorically obligated funding appropriated under the

- 29 -IRA or the IIJA. As the Government sees it, the District Court

"misconstrued" the Unleashing Memorandum. The Government insists

that the Unleashing Memorandum "does not itself direct any agency

to pause funding" and instead simply "provides guidance to agencies

about how to interpret and implement the [Unleashing] Executive

Order."

The Unleashing Executive Order does direct all agencies

to "immediately pause" disbursements of funds appropriated under

the IRA and the IIJA pending review for consistency with the

President's priorities. Unleashing Executive Order § 7(a).

However, the Unleashing Executive Order qualifies that directive

with another instruction: to implement the Unleashing Executive

Order "in a manner consistent with applicable law." Id. § 10(b).

Thus, agencies could have understood the Unleashing Executive

Order to require them to first consider their lawful authority to

withhold disbursements deemed inconsistent with the policies

established in that order before pausing such disbursements.

It is notable, then, that the District Court found the

Agency Defendants "sudden[ly] . . . paus[ed] funds soon after

[the] issuance of the [Unleashing Memorandum]." Unlike the

Unleashing Executive Order, the Unleashing Memorandum does not

include an express limiting instruction. Instead, it reads like

a command in its explanation that the Unleashing Executive Order

requires agencies to "immediately pause disbursements of funds

- 30 -appropriated under the [IRA] or the [IIJA] . . . that may be

implicated by the policy established in [s]ection 2 of the

[Unleashing Executive Order]."

The Unleashing Memorandum further orders agencies to

consult with OMB before releasing funds. And although one of the

policies established in section 2 of the Unleashing Executive

Order is "to ensure that no Federal funding be employed in a manner

contrary to the principles outlined in [that] section, unless

required by law," Unleashing Executive Order § 2(i), the

Unleashing Memorandum does not explain how agencies are to

simultaneously "immediately pause" IRA and IIJA disbursements

"that might be implicated" by the other policies in the Unleashing

Executive Order and determine which of those payments were required

by law. Cf. Nat'l Council of Nonprofits v. Off. of Mgmt. & Budget,

763 F. Supp. 3d 36, 51 (D.D.C. 2025) (questioning how agencies

could review the legal requirements of "hundreds of thousands" of

grants within twenty-four hours).

We thus see no error in the District Court's

determination that the Unleashing Memorandum itself "mandate[d] a

pause" of IRA and IIJA funding. To that point, the Nonprofits

entered into the record emails from agency officials to affected

grantees indicating that the grantees' funds were frozen "based on

instruction from OMB," which shows that those agency officials

understood the Unleashing Memorandum to require them to implement

- 31 -a categorical freeze of IRA and IIJA funding. Moreover, the

Government relies on OMB's authority to "establish[] financial

management policies and requirements" for the executive branch, 31

U.S.C. § 503(a)(2), as the statutory basis for issuing the

Unleashing Memorandum. Given that reliance and the evidence in

the record, we cannot see -- and the Government offers no

argument -- why the decisions to issue the Unleashing Memorandum,

then, are not themselves final agency actions, as the Unleashing

Memorandum imposes distinct obligations on federal agencies and

departments to pause IRA and IIJA funding. See Biden, 597 U.S. at

808-09, 809 n.7.

3.

The Government also argues, just as it did in New York,

that the District Court likely "exceeded the bounds of the APA by

ordering agencies to exercise or refrain from exercising their

unreviewable discretion in a particular manner." See New York,

171 F.4th at 18-19. For support, the Government relies on § 701

of the APA, which provides that agency actions that are "committed

to agency discretion by law" are not subject to judicial review.

5 U.S.C. § 701(a)(2).

The Government appears to concede that the allocation

and distribution of at least some of the affected funding streams

do not fall within the agencies' unfettered discretion. But the

Government goes on to identify a few scattered statutes and grant

- 32 -programs that it contends "leave the agency to choose how to best

distribute the funds." The Government then argues that these

statutes and programs are like the lump-sum appropriation at issue

in Lincoln v. Vigil, 508 U.S. 182 (1993), which held that certain

funding decisions under said appropriation were committed to

agency discretion.

In Lincoln, however, the Supreme Court did not address

an agency's discretion to categorically and indefinitely withhold

obligated funds. See New York, 171 F.4th at 19-20. Instead, in

that case, the Court determined that the Indian Health Service's

decision to discontinue a program was committed to agency

discretion by law -- and thus unreviewable under the APA -- on the

"limited ground that the allocation of funds from a lump-sum

appropriation is an administrative decision traditionally regarded

as committed to agency discretion and the relevant statutes spoke

about Indian health only in general terms and did not so much as

mention the program at issue." New York, 171 F.4th at 19 (citation

modified) (quoting Lincoln, 508 U.S. at 192, 194). The Government

therefore has failed to show that the challenged agency actions in

this case are committed to agency discretion by law, such that the

Nonprofits are unlikely to succeed in challenging those actions

under the APA. See Barlow v. Collins, 397 U.S. 159, 166 (1970)

("[J]udicial review of [final agency] action is the rule, and

nonreviewability an exception which must be demonstrated.").

- 33 -4.

The Government's remaining arguments concerning the

"likelihood of success" factor take aim at the Nonprofits' ability

to show that the challenged agency actions likely were either

arbitrary and capricious or in excess of statutory authority. The

Government does not dispute that the Nonprofits' "arbitrary and

capricious" claims -- if likely to succeed -- would themselves

support the preliminary relief issued by the District Court insofar

as any of their claims would. We therefore can dispose of this

set of arguments by the Government by focusing solely on the

Nonprofits' arbitrary and capricious claims, as we conclude that

the District Court did not err in determining that the Nonprofits

are likely to succeed in showing that the challenged agency actions

are arbitrary and capricious.

a.

"In assessing whether an agency action is arbitrary and

capricious, a court may consider only 'the grounds that the agency

invoked when it took the action.'" New York, 171 F.4th at 20

(quoting Dep't of Homeland Sec. v. Regents of the Univ. of Cal.,

591 U.S. 1, 20 (2020)). To survive "arbitrary and capricious"

review, agency action must be "reasonable and reasonably

explained." Id. (quoting Ohio v. Env't Prot. Agency, 603 U.S.

279, 292 (2024)). "When an agency changes course," Regents, 591

U.S. at 30, moreover, the requirement that agency action be

- 34 -reasonable includes "assess[ing] whether there [are] reliance

interests, determin[ing] whether they [are] significant, and

weigh[ing] any such interests against competing policy concerns,"

id. at 33. An agency "acts arbitrarily and capriciously by

ignoring such matters." New York, 171 F.4th at 21 (citation

modified).

b.

In determining that the Nonprofits are likely to succeed

in showing that the challenged agency actions were arbitrary and

capricious, the District Court explained that "[n]othing from OMB,

the NEC Director, or the five Agency Defendants shows that they

considered the consequences of their broad, indefinite

freezes: projects halted, staff laid off, goodwill tarnished."

The Government disagrees.

The Government appears to contend that the OMB and Agency

Defendants did not need to consider many grantees' reliance

interests and thus that the District Court erred in concluding

otherwise. As the Government sees things, grantees that receive

funds under the IRA and the IIJA "can hardly claim" reliance

interests. That is so, according to the Government, because "many

grant contracts authorize termination on various grounds,

including if 'an award no longer effectuates the program goals or

agency priorities.'" (Quoting 2 C.F.R. § 200.340(a)(4).) Yet,

the Government points out, the District Court "identified no legal

- 35 -requirement . . . that payments need to be made on a particular

timetable."

In Regents, however, the Court considered and rejected

the Department of Homeland Security's similar contention that it

did not need to consider the potential reliance interests of

recipients of the Deferred Action for Childhood Arrivals program

because the memorandum establishing that program stated that it

"'conferred no substantive rights' and provided benefits only in

two-year increments." 591 U.S. at 31. The Court explained that

"such features" of the challenged program did not "automatically

preclude reliance interests" because, although those "disclaimers

are surely pertinent in considering the strength of any reliance

interests," reasoned agency action still requires "that

consideration be undertaken by the agency in the first instance."

Id. Regents therefore is at odds with the Government's position

insofar as the Government means to argue that, even if the OMB and

Agency Defendants did not in fact undertake consideration of the

grantees' reliance interests, they were not required to do so

because "many" of the grants at issue allow for termination in

certain circumstances.

That leaves only the Government's distinct argument

that, given the text of the Unleashing Memorandum, we must conclude

that the OMB Defendants did consider the reliance interests of

grantees who, in consequence of the directive in that memorandum,

- 36 -would be denied financial assistance that they otherwise would

receive pursuant to their grants. Specifically, the Government

argues that the Unleashing Memorandum "made clear that the pause

directed by the [Unleashing] Executive Order did not apply to all

funds appropriated under the IRA and IIJA but instead applied only

to 'funds supporting programs, projects, or activities that may be

implicated by the policy established' in [that] Executive Order."

The Government further argues that the Unleashing

Memorandum "advanced" any reliance interests that the OMB

Defendants were required to consider because that memorandum

"reiterated that agencies could continue to disburse funding as

necessary after consulting with OMB." And, the Government also

asserts, the Unleashing Memorandum, like the Unleashing Executive

Order, "took steps to ameliorate any negative effects, including

for funding recipients who had reasonable reliance interests in

continued disbursement," such as "where such disbursement was

required by law." See Unleashing Executive Order §§ 2(i), 7(a).

It is true that the Unleashing Executive Order exempts

from the "immediate[] pause" of disbursements of funds

appropriated under the IRA and the IIJA any disbursements "required

by law."11 It also true that the Unleashing Memorandum states that

In relevant part, the Unleashing Executive Order stated

11

that "[i]t is the policy of the United States . . . to ensure that no Federal funding be employed in a manner contrary to the

- 37 -the "pause only applies to funds supporting programs, projects, or

activities that may be implicated by the" Unleashing Executive

Order. Even still, we cannot accept the Government's position

that the Unleashing Memorandum did consider the reliance interests

of the grant recipients.

As we have explained, the Unleashing Memorandum

expressly provides that the Unleashing Executive Order "requires

agencies to immediately pause disbursement of funds appropriated

under the [IRA] or the [IIJA]." (Emphasis added.) Yet the

Unleashing Memorandum does not explain how agencies are to

simultaneously "immediately pause" IRA and IIJA disbursements and

determine which of those payments were required by law. The record

also supportably shows, as we have explained, that the Agency

Defendants understood the Unleashing Memorandum to mandate an

immediate pause of funding appropriated under the IRA and the IIJA.

We therefore conclude that the record supports the District Court's

determination, which is "informed by the record evidence of the

consistent way that the intended recipients of the [Unleashing

Memorandum] understood it," New York, 171 F.4th at 23, that the

OMB Defendants "essentially adopted a 'freeze first, ask questions

later' approach."

principles outlined in this section, unless required by law."

Unleashing Executive Order § 2(i).

- 38 -We further conclude that the District Court did not err

in determining that, by ordering agencies to freeze funding in

that manner, the OMB Defendants disregarded the reliance interests

of the grant recipients and so likely acted in an arbitrary and

capricious manner. Accordingly, although we agree with the

Government that "the mere possibility that some agency might make

a legally suspect decision" pursuant to the Unleashing Memorandum

does not in and of itself justify enjoining enforcement of that

memorandum in every circumstance, "that principle has no relevance

here." New York, 171 F.4th at 23 (citation modified). Rather, as

we have explained, the District Court made the supportable finding

that the Unleashing Memorandum itself mandated a categorical and

immediate pause on disbursing funds already obligated under the

IRA and the IIJA. See Dep't of Com., 558 U.S. at 785 (observing

that courts reviewing agency actions "are not required to exhibit

a naiveté from which ordinary citizens are free" (citation

modified)).

The Government attempts to counter this conclusion by

directing our attention to the Unleashing Memorandum's instruction

that agencies may resume disbursing funds "as they deem necessary

after consulting with [OMB]." The Government argues that this

instruction demonstrates that the OMB Defendants considered the

grantees' reliance interests.

- 39 -By its nature, however, the post-hoc review process that

the instruction contemplates ignores the reliance interests

implicated by the "'freeze first, ask questions later' approach"

that, as we have explained, the District Court supportably found

that the OMB Defendants adopted. We therefore conclude that the

Nonprofits are likely to succeed in showing that the OMB

Defendants, like the Agency Defendants, acted arbitrarily and

capriciously by failing to consider reliance interests.

B.

Having concluded that the Nonprofits are likely to

succeed on the merits of their claims, we still must address the

remaining factors for assessing a motion for a preliminary

injunction. Those factors concern whether the Nonprofits have

shown that they would suffer irreparable harm, the balance of harms

that such relief would cause, and the public interest. See

NuVasive, 954 F.3d at 443. The Government argues that these

factors point against granting the relief that the District Court

ordered. We disagree.

1.

We start with the issue of whether the Nonprofits have

met their burden to show that they would suffer irreparable harm

absent the requested relief. The Government argues that the

Nonprofits have not met that burden because they "have no

cognizable interest in receiving federal funds to which they are

- 40 -not legally entitled or on a timeline that is not legally

compelled."

This argument rests on the premise that the Nonprofits

are unlikely to succeed on the merits of their APA claims. See

New York, 171 F.4th at 24. As we have explained, though, we agree

with the District Court that the Nonprofits have shown that they

are likely to do so.

The Government separately contends that the Nonprofits

have not shown irreparable harm because "the gravamen" of their

claimed injury "is monetary," which is "the classic example of

reparable harm." The Government does not dispute, however, that

the District Court found that the Nonprofits face nonpecuniary

harms from the funding freezes, including "wasted hours of labor

and planning" for projects that the Nonprofits cannot support

without federal assistance, "the impending loss of staff, and the

harms that the [funding] pauses have done to the Nonprofits'

relationship[s] with their communities." And the Nonprofits have

shown that these follow-on effects from their loss of funding are

irreparable harms. See Rhode Island v. Trump, 155 F.4th 35, 49

(1st Cir. 2025); cf. Dep't of Educ. v. California, 604 U.S. 650,

652 (2025) (per curiam) (holding plaintiffs did not face

irreparable harm due to funding loss based on their representation

"that they have the financial wherewithal to keep their programs

running").

- 41 -2.

As to the balance of harms and the public interest, the

Government contends in part that the challenged District Court

order "interferes with agencies' ability to exercise their lawful

authorities to implement the President's policy directives" and

that "there would be no guarantee that funds that the [Agency

Defendants] disbursed pursuant" to the preliminary injunction

"would be retrievable" if the Government were to prevail ultimately

in litigation. We observed in New York, however, that the

Government would endure such harms "only if the preliminary

injunction barred 'lawful conduct.'" New York, 171 F.4th at 25;

see also Rhode Island, 155 F.4th at 49 ("[T]here is generally no

public interest in the perpetuation of unlawful agency action."

(quoting Somerville Pub. Schs. v. McMahon, 139 F.4th 63, 76 (1st

Cir. 2025)). And, as we explained above, the Government has failed

to show that the Nonprofits are unlikely to succeed on the merits

of their APA claims.

The Government's other asserted harm arises from what

the Government contends are the "vague instructions" contained in

the District Court's order. It asserts that those instructions

lack "the requisite detail and precision" to provide notice of

what the order prohibits and that this failure "threatens to chill

agencies from taking legally permitted actions."

- 42 -The Government zeroes in partly on the portion of the

District Court's order that prohibits the Government "from

implementing, giving effect to, or reinstating under a different

name the directive in [the Unleashing Memorandum] to unilaterally

freeze awarded funding appropriated under the [IRA] or the [IIJA]."

The Government argues that this prohibition fails to "provid[e]

guidance as to what features matter" with respect to that

directive, as the Unleashing Memorandum "contains no such

directive."

By its own terms, however, the challenged order

identifies the "directive" set forth in the Unleashing Memorandum

as the instruction in that document "to unilaterally freeze awarded

funding appropriated under the [IRA] or the [IIJA]." Thus,

considered in the context of the District Court's order as a whole

and in light of the District Court's supporting memorandum, the

"unilateral[] freeze" to which the District Court's order refers

is clearly the categorical pause of "all" IRA and IIJA funding.

The Government also zeroes in on the portion of the

District Court's order that prohibits the Agency Defendants from

"freezing, halting, or pausing on a non-individualized basis the

processing and payment of [already-awarded] funding" appropriated

under the IRA or the IIJA. (Alteration in original.) The

Government objects that this part of the order "contains no

additional detail to make clear what sort of 'individualized'

- 43 -analysis" would be "an appropriate basis for agencies to exercise

their authority to pause disbursements."

The problem here for the Government is that the

"non-individualized basis" to which the District Court referred is

the categorical freeze of funding based solely on that funding's

status as an IRA or IIJA appropriation. And the District Court

explained that its "order does not prevent the Government from

making funding decisions in specific cases according to processes

like those established in 2 C.F.R. § 200.340." We therefore do

not understand the District Court's order to prevent the Agency

Defendants from exercising their discretion to pause disbursements

under the relevant actual statutory, regulatory, and contractual

authority that they possess.

Accordingly, we do not see how the Agency Defendants are

"chilled" in their exercise of lawful authority. Moreover, even

if we were to accept the Government's premise that some agency

action could be chilled, the Government fails to explain why that

"possibility constitutes a harm substantial enough to outweigh the

harm that [the Nonprofits] allege that they will suffer from the

agency actions that they challenge." New York, 171 F.4th at 26.

We therefore conclude that the Government has failed to show that

the District Court abused its discretion by finding the equities

favor the Nonprofits.

- 44 -IV.

There remains to consider only the Government's

challenges to the breadth of the relief that the District Court

ordered. Our review is for abuse of discretion. See DraftKings

Inc. v. Hermalyn, 118 F.4th 416, 423 (1st Cir. 2024).

The Government makes two distinct contentions with

respect to the breadth of the relief. First, the Government argues

that the District Court's order is too broad because it

impermissibly directs the Agency Defendants to make monetary

payments under contractual agreements. Second, the Government

argues that the relief that the District Court ordered was too

broad because it is "universal." We agree with the Government

that the order is too broad in the first respect, but we otherwise

reject the Government's challenge to the scope of the relief

ordered, at least given the specific arguments that the Government

has advanced.

A.

The District Court ordered the Agency Defendants to

"take immediate steps to resume the processing, disbursement, and

payment of already-awarded [IRA and IIJA] funding . . . and to

release awarded funds previously withheld or rendered

inaccessible." The Government contends that this portion of the

District Court's order exceeds the bounds of the District Court's

authority under the APA. We agree.

- 45 -"The APA's limited waiver of sovereign immunity does not

provide the [d]istrict [c]ourt with jurisdiction . . . to order

relief designed to enforce any obligation to pay money pursuant to

[contract-based] grants." New York, 171 F.4th at 26 (citation

modified) (quoting Nat'l Insts. of Health v. Am. Pub. Health Ass'n,

145 S. Ct. 2658, 2660 (2025)). The portion of the District Court's

order that directs the Agency Defendants to resume payment of funds

awarded under grants appropriated under the IRA and the IIJA is,

in effect, an order "to enforce a contractual obligation to pay

money," Dep't of Educ., 604 U.S. at 651 (quoting Great-West Life

& Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002)). As such,

it is beyond the District Court's authority under the APA. See 5

U.S.C. § 702 (providing that the APA's sovereign immunity waiver

does not include money damages or "confer[] authority to grant

relief if any other statute that grants consent to suit expressly

or impliedly forbids the relief which is sought"); 28 U.S.C. § 1491

(granting the U.S. Court of Federal Claims jurisdiction over claims

"upon any express or implied contract with the United States").12

The Nonprofits counter that the Tucker Act has no

application here because they "do not bring contract claims." But

12Neither party contends that the remaining disbursements due

under any grant would be less than $10,000. Cf. 28 U.S.C. § 1346(a)(2) (granting federal district courts jurisdiction over

contract claims against the United States when those claims do

"not exceed[] $10,000 in amount").

- 46 -neither did the plaintiffs in National Institutes of Health. See

Am. Pub. Health Ass'n v. Nat'l Insts. of Health, 145 F.4th 39, 50

(1st Cir. 2025). The plaintiffs in National Institutes of Health,

like the Nonprofits here, alleged that the agency actions that

they challenged violated the APA. See id. at 43. That the

Nonprofits do not bring contract claims here "thus does not cure

the likely problem with the District Court's remedy" for their APA

claims. New York, 171 F.4th at 28.

The Nonprofits also gesture at another reason why there

is no sovereign-immunity-based bar to the relief at issue. They

suggest that some of the plaintiffs, including subgrantees and the

National Council of Nonprofits, cannot assert contract claims

against the federal government in the U.S. Court of Federal Claims

because those plaintiffs are third parties to the federal grants.

Whether those plaintiffs can bring such claims in that

forum, however, is likely irrelevant to the relief that a district

court can order under the APA's "limited waiver of sovereign

immunity." Nat'l Insts. of Health, 145 S. Ct. at 2660 (citation

modified). That waiver does not extend to the ordering of

"specific performance [of] payment" pursuant to contractual

obligations. New York, 171 F.4th at 27; cf. Coggeshall Dev. Corp.

v. Diamond, 884 F.2d 1, 3 (1st Cir. 1989) ("We are unaware of any

waiver of sovereign immunity by the United States as to specific

performance for breach of contract."); Am. Sci. & Eng'g, Inc. v.

- 47 -Califano, 571 F.2d 58, 61-63, 63 n.6 (1st Cir. 1978) (explaining

that § 702 does not permit district courts to enjoin a contract

breach). And it is hard to see how the relief sought

here -- insofar as it takes the form of an injunction to pay the

funds obligated under existing grants -- could be premised on

anything other than the enforcement of a contractual obligation.

The remaining relief ordered by the District Court poses

no such sovereign immunity problems. After all, a district court

may vacate unlawful agency action, "preventing the agency from

using it going forward." New York, 171 F.4th at 30 (quoting Nat'l

Insts. of Health, 145 S. Ct. at 2662 n.1 (Barrett, J.,

concurring)); see 5 U.S.C. §§ 705-706. In that respect, although

the remaining relief -- which prohibits the Government from

implementing the challenged agency actions -- "may result in the

disbursement of funds," Dep't of Educ., 604 U.S. at 651 (emphasis

added), it does not exceed the District Court's authority under

the APA because it "is not itself an order to enforce a contractual

obligation to pay money," New York, 171 F.4th at 30 (emphasis

added) (citation modified). See also Bowen v. Massachusetts, 487

U.S. 879, 909-11 (1988) (holding that an order "reversing" an

agency decision that disallowed a Medicaid reimbursement is

"within the District Court's jurisdiction under § 702's waiver of

sovereign immunity" because the order is not a "money judgment"

even though "it is likely that the Government will abide by [the

- 48 -order] and reimburse . . . the requested sum"). It is instead

merely an order enjoining the defendants from relying on the

challenged agency actions as the basis for the ongoing withholding

of the funds in question.

B.

Concerns about sovereign immunity aside, the Government

argues that the District Court ordered relief that is overbroad by

ordering "universal" injunctive relief rather than relief tailored

to redress only party-specific harms. The Government contends

that such "universal" relief is foreclosed by Trump v. CASA, Inc.,

606 U.S. 831 (2025).

We begin by addressing the Government's contention that,

insofar as the District Court ordered the challenged relief

pursuant to its equitable authority under the Judiciary Act of

1789, that relief was overbroad under CASA. However, the District

Court did no such thing. We agree with the Nonprofits that the

record shows that the District Court is best understood to have

ordered that relief pursuant to its independent remedial authority

under the APA. See 5 U.S.C. § 705. Moreover, we conclude that,

at least given the arguments that the Government has advanced on

appeal, the Government has not shown that the District Court abused

its discretion in exercising that independent APA-based authority

in ordering such universal relief.

- 49 -1.

The Government is right that, under CASA, the District

Court likely lacked authority to issue a universal preliminary

injunction insofar as it did so pursuant to its equitable authority

under the Judiciary Act of 1789. The District Court did not

support the relief that it ordered with a finding that universal

relief was necessary to provide the Nonprofits with complete

relief. Cf. CASA, 606 U.S. at 853-54 (contemplating that a

universal injunction may be permissible as an application of the

complete-relief principle). Instead, the District Court

reasoned -- in part -- that universal relief was proper because

"[n]onparties in exactly the same circumstances [as the

Nonprofits] should not be forced to suffer the harms [of the likely

unlawful challenged agency actions] just because there was not

enough time or resources for them to join the suit."

CASA counsels, however, that nonparty relief of that

sort exceeds the equitable authority conferred by the Judiciary

Act of 1789. See id. at 853 ("Extending [an] injunction to cover

all other similarly situated individuals would not render [the

plaintiff's] relief any more complete."). That said, the

Nonprofits argue that the District Court did not premise that

relief on the remedial authority that the Judiciary Act of 1789

confers. They argue that the District Court instead premised that

relief on the remedial authority that the APA independently confers

- 50 -to "issue all necessary and appropriate process to postpone the

effective date of an agency action or to preserve status or rights"

pending judicial review. 5 U.S.C. § 705.

The Nonprofits then point out that CASA had no occasion

to address the scope of the relief that may be ordered pursuant to

that independent, APA-based grant of remedial authority. See CASA,

606 U.S. at 847 n.10 (noting that it did not "resolve[] the

distinct question" of relief under the APA); id. at 873 (Kavanaugh,

J., concurring) (observing that district courts may still

"preliminarily set[] aside" agency action under the APA). As a

result, the Nonprofits contend, CASA cannot itself be understood

to foreclose that relief. So, we next must address this

APA-grounded basis for upholding the relief that was ordered.

2.

Consistent with their contention that CASA is not

dispositive here, the Nonprofits specifically moved for

preliminary relief under § 705 of the APA. In addition, in

response to that motion, the District Court issued an order

granting it that explicitly states that the relief being ordered

"shall apply to the maximum extent provided for by Federal Rule of

Civil Procedure 65(d)(2) and 5 U.S.C. §§ 705 and 706." (Emphasis

added.)

We fail to see how, despite the statement by the District

Court expressly tying the ordered relief to § 705 of the APA, we

- 51 -could conclude that the District Court had no intention of resting

its order on the authority that § 705 independently confers.

Indeed, the District Court specifically stated in its opinion

supporting the challenged order that universal relief was

warranted because "[t]he normal remedy for a successful APA

challenge is vacatur of the [challenged agency action] and its

applicability to all who would have been subject to it."

The Government does respond that we cannot conclude that

the District Court issued the challenged relief pursuant to its

independent remedial authority under the APA. To make that case,

the Government asserts that § 705 confers "limited postponement

authority." And, the Government continues, the District Court's

order not only failed to "clearly invoke that authority," but also

speaks "in terms of compelling defendants to act and not act in

various ways," "not in terms of suspending any specific agency

action." The Government therefore contends that we must understand

the District Court to have been exercising its remedial authority

solely under the Judiciary Act of 1789, which is the remedial

authority that CASA expressly addressed.

We agree with the Government to this extent: The wording

of the District Court's order is such that it cannot be construed

to be merely postponing the effective date of the challenged agency

actions. In so concluding, we do not dispute that a postponement

of an agency action's effective date pending appeal, like a stay

- 52 -of such action pending appeal, "has some functional overlap" with

a preliminary injunction. See Nken v. Holder, 556 U.S. 418, 428

(2009). Nonetheless, the two forms of relief are distinct in how

they operate. See id. at 428-29. An injunction "direct[s] an

actor's conduct[,]" id. at 429, while a postponement of the

effective date of any agency action under § 705 operates only on

the agency action itself, as even the Nonprofits acknowledge.

Here, the relief ordered by the District Court operates

on the Government rather than the challenged agency actions.13

13 Excepting the portion of the order that we have already

determined must be vacated, see Part IV.A, the District Court:

• "ORDERED that [the Agency Defendants] are ENJOINED from

freezing, halting, or pausing on a non-individualized basis

the processing and payment of funding that (1) was

appropriated under the [IRA] or the [IIJA] and (2) has already

been awarded";

• "ORDERED that [the OMB Defendants] provide written notice of

the [District] Court's preliminary injunction to all agencies

to which [the Unleashing Memorandum] was addressed. The

written notice shall instruct those agencies that they may

not take any steps to implement, give effect to, or reinstate

under a different name the unilateral, non-individualized

directives in [the Unleashing Memorandum] with respect to the

disbursement of all open awards under the [IRA] or the [IIJA].

It shall also instruct those agencies to continue releasing

any disbursements on open awards that were paused due to or

in reliance on [the Unleashing Memorandum]";

• "ORDERED that [the Agency Defendants] provide written notice

of the [District] Court's preliminary injunction to all

grantees who have been awarded funds under the [IRA] or the

[IIJA]"; and

• "ORDERED that all Defendants are ENJOINED from implementing,

giving effect to, or reinstating under a different name the

directive in [the Unleashing Memorandum] to unilaterally

freeze awarded funding appropriated under the [IRA] or the

[IIJA]."

- 53 -Thus, despite the Nonprofits' argument to the contrary, we cannot

see how the order can be construed to be an exercise of § 705's

authority to postpone the effective date of the challenged agency

actions. Indeed, the Nonprofits styled their motion for relief

under § 705 as a motion for a preliminary injunction, and it was

that motion that the District Court granted.

Nonetheless, as the Nonprofits point out, § 705 empowers

a court to "issue all necessary and appropriate process [(1)] to

postpone the effective date of an agency action or [(2)] to

preserve status or rights pending conclusion of the review

proceedings." 5 U.S.C. § 705 (emphasis added). And the District

Court expressly stated that the order in question "shall apply to

the maximum extent provided for by" § 705.

Thus, because the Government itself agrees that the

District Court did not style its order as an exercise of the

"postponement" authority that § 705 concerns, we understand the

challenged relief to be an exercise of the additional remedial

authority that § 705 confers to "issue all necessary and

appropriate process . . . to preserve status or rights pending"

judicial review. Id. § 705. Otherwise, it is hard to see how

that order could apply -- as the District Court made clear was its

intention -- to the maximum extent that § 705 allows.

Accordingly, the critical question is whether the

District Court's order is overbroad even though the District Court

- 54 -issued it pursuant to § 705's grant of authority to "issue all

necessary and appropriate process . . . to preserve status or

rights pending" judicial review. And so, we must address that

question as well.

3.

The Government appears to contend that we must resolve

that question in its favor -- and so conclude that District Court's

order still is overbroad -- because § 705 itself "incorporates"

traditional equitable limitations on nonparty relief. Indeed,

anticipating the possibility that the order might be construed as

a stay rather than as an injunction, the Government argues at some

length that a postponement of the effective date of the challenged

agency action "would still properly be limited to redressing [the

Nonprofits'] irreparable harm." We are not persuaded.

a.

For starters, the Government fails to adequately defend

the premise of its assertion about the limited nature of the

authority that § 705 confers -- namely, that § 705 does not

authorize non-party relief even in authorizing the postponement of

the effective date of an agency action. Notably, several of our

sister circuits have held to the contrary as to that precise issue.

See Make the Road N.Y. v. Noem, No. 25-5320, 2025 WL 3563313, at

*35-36 (D.C. Cir. Nov. 22, 2025) (per curiam); Career Colls. &

Schs. v. U.S. Dep't of Educ., 98 F.4th 220, 255 (5th Cir. 2024);

- 55 -see also Nat'l TPS All. v. Noem, 150 F.4th 1000, 1028-29 (9th Cir.

2025) (affirming universal stay because partial postponement was

unworkable due to "binary" nature of challenged agency action under

the relevant statute). But cf. Immigrant Defs. L. Ctr. v. Noem,

145 F.4th 972, 995-96 (9th Cir. 2025) (limiting universal stay

issued under § 705 to the plaintiff's "current and future clients"

because that was "the more equitable approach 'to preserve status

[and] rights pending'" judicial review (alteration in original)

(quoting 5 U.S.C. § 705)).

The text of § 705 would appear to accord with those

rulings, as it refers to postponing "the effective date of an

agency action." 5 U.S.C. § 705 (emphasis added). As the District

of Columbia Circuit recently well explained, "agency orders,

regulations, and rules almost always have but one effective date.

If a court orders that an agency action shall not apply against

certain individuals, but that the agency can apply that action

against everyone else, the effective date of the action has not

been postponed." Make the Road N.Y., 2025 WL 3563313, at *35.

Moreover, these other circuits' understanding of the

postponement portion of § 705 nicely aligns with § 706(2), which

provides that reviewing courts may "set aside" unlawful agency

actions and has long been understood to authorize vacatur of such

actions. See Corner Post, 603 U.S. at 826 (Kavanaugh, J.,

concurring). The broader construction of § 705's postponement

- 56 -authority would thus appear to enable a district court, by

postponing "the effective date" of the challenged agency action,

to provide the "[r]elief pending review," 5 U.S.C. § 705, that

preserves the remedy -- vacatur -- to which a plaintiff, if

ultimately successful, is entitled, see id. § 706(2).

Of course, as we have explained, we do not understand

the District Court here to have relied on the authority that § 705

confers to postpone the effective date of an agency action in

ordering the relief at issue. Instead, we understand the District

Court's order to operate as an injunction because it operates

directly on the agency actors by enjoining them from engaging in

certain agency decision-making and does not merely vacate or set

aside an agency action already taken. Cf. Nken, 556 U.S. at 529

(explaining that a stay "temporarily suspend[s] the source of the

authority to act" whereas an injunction "direct[s]" the actor's

conduct).

Our discussion of the postponement authority that § 705

confers is still relevant, though, to the scope-of-the-relief

issue that we must resolve. It explains why we do not agree with

the Government -- at least given the arguments that it has made on

appeal -- that § 705 fails to contemplate any nonparty relief.

Put differently, that discussion explains why we cannot accept the

key premise of the Government's argument for concluding that,

- 57 -because the District Court's order is "universal" in scope, it is

overbroad even if it rests on § 705.

The upshot of our analysis to this point, then, is that

the Government can succeed in showing that the challenged order is

overbroad only if it can explain why, even though § 705 does not

bar all such nonparty relief, the portion of § 705 that authorizes

a district court to "issue all necessary and appropriate

process . . . to preserve status or rights pending" judicial

review does bar such relief. But, as we will explain, the

Government has offered no such explanation.

b.

The Government does point out that relief under § 705

may be issued only "to the extent necessary to prevent irreparable

injury." 5 U.S.C. § 705. We cannot agree with the Government's

contention, though, that this provision in and of itself shows

that the remedial authority that § 705 confers is limited to

redressing party-specific harms.

This provision appears to limit the relief that may be

granted from a challenged agency action to only those parts of the

agency action that are imposing an irreparable injury. See Make

the Road N.Y., 2025 WL 3563313, at *35. For example, if an agency

action contains severable components, this provision "just means

that courts should [postpone] the effective date only of those

portions of the agency action that are inflicting injury" and "let

- 58 -the other portions of the [agency action] take effect as

scheduled." Id. But we do not see how the "irreparable injury"

constraint speaks to the scope of the relief that may be ordered

to redress such an injury -- and so speaks to whether the relief

that may be issued once the irreparable injury has been shown must

be limited to redressing only party-specific harm or may be

universal in nature to preserve the rights that could be obtained

through vacatur.

Indeed, as we have explained, the power to postpone the

effective date of an agency action confers the power to order a

form of relief that, in its nature, appears to do more than simply

redress a party-specific harm. So, it is not evident that the "to

the extent necessary" language in § 705 in and of itself dictates,

as to any relief that may be issued pursuant to § 705, that such

relief cannot be universal.

The Government also points out that § 702 of the APA,

which identifies who may bring an APA suit and contains the

statute's sovereign immunity waiver, states that "[n]othing" in

that provision affects "the power or duty of the court" to "deny

relief on any other appropriate legal or equitable ground." 5

U.S.C. § 702. The Government then goes on to argue that this

provision shows that the APA "requires courts to decline to enter

universal relief" when a narrower remedy would provide complete

relief to the plaintiffs.

- 59 -Once again, though, this argument is premised on an

understanding of the scope of the postponement authority that the

Government has not shown to be correct. After all, this argument

would require even that remedial authority to be party-specific.

Yet the Government has not explained how the savings clause in

§ 702 has the asserted limiting effect as to some parts of § 705

but not others.

The Government next directs our attention to a piece of

legislative history to support its position that, across the board,

§ 705 precludes universal relief. The Government relies on the

House Report that accompanied the APA, which states that § 705

"would normally, if not always, be limited to the parties

complainant." H.R. Rep. No. 79-1980, at 277 (1946).

In explaining that § 705 relief "would normally" be

limited to the parties to the litigation, however, the House Report

itself contemplates that relief under § 705 may, in some

circumstances, extend to nonparties. We also note that the

corresponding Senate Report merely describes § 705 as permitting

courts "to maintain the status quo" "if the proper showing be

made," and explained that it should be used "to prevent irreparable

- 60 -injury or afford parties an adequate judicial remedy." S. Rep.

No. 79-752, at 213 (1945).14

So, given that the Government bears the burden on appeal,

we conclude that it has not advanced a persuasive argument for us

to hold that the District Court abused its discretion by issuing

relief of the present scope. Rather, as we have explained, its

only arguments for concluding otherwise are premised on the

mistaken understanding that even the postponement authority in

§ 705 must be so limited.15

We further observe that Congress considered and rejected

14

several versions of § 705 that included party-specific language.

See H.R. 339, 79th Cong. § 9(e) (1945) (granting equitable

authority to "preserve the status or the rights of the parties"

pending review and to "postpone the effective date" of a challenged action "to accord the parties a fair opportunity for judicial

review" (emphasis added)), reprinted in Federal Administrative

Procedure: Hearings on H.R. 184, H.R. 339, H.R. 1117, H.R. 1203,

H.R. 1206, and H.R. 2606 Before the H. Comm. on the Judiciary,

79th Cong. 139, 146 (1945) [hereinafter House Judiciary Committee Hearing]; H.R. 1117, 79th Cong. § 9(e) (1945) (same), reprinted in House Judiciary Committee Hearing at 147, 154; H.R. 2602, 79th

Cong. § 4(c) (1945) (same), reprinted in House Judiciary Committee Hearing at 176, 179. The version that it enacted lacked such

party-specific language. See Administrative Procedure Act, Pub.

L. No. 79-404, § 10(d), 60 Stat. 237, 243 (1946); 5 U.S.C. § 705. Though we do not afford "decisive significance to the unexplained disappearance of one word from an unenacted bill," Mead Corp. v.

Tilley, 490 U.S. 714, 723 (1989), we cannot presume that such

omission was inadvertent.

The Government makes no argument that Article III itself

15

would bar a district court from issuing universal injunctive relief to preserve the status quo if Congress were to have authorized its issuance in service of the vacatur remedy provided for in § 706,

and we see no basis for concluding that such a grant of remedial

authority would transgress the limits of Article III, given the

- 61 -C.

We make one final observation concerning the

scope-of-the-relief issue. Although we do not definitively

resolve in this appeal the extent of the remedial authority that

the non-postponement portion of § 705 confers, due to the limited

nature of the arguments that the Government has advanced to us

about that portion, we are aware that the District Court issued

this relief before CASA was decided. We also are aware that the

Nonprofits themselves argue on appeal that the remaining portions

of the District Court's remedial order -- those that we have

concluded do not exceed the APA's sovereign immunity waiver -- are

best construed to be an exercise of the "postponement" authority

that § 705 confers -- and so not to be a universal injunction at

all.

Thus, if a party successfully were to seek -- or the

District Court otherwise were to make -- a modification of the

order on remand based on § 705's postponement authority alone,

that modification might moot any questions about the extent of the

authority indicating that vacatur is itself a remedy that Congress may authorize. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,

890 n.2 (1990) (noting that a successful APA suit can affect the

entire challenged agency action); Corner Post, Inc. v. Bd. of

Governors of Fed. Rsrv. Sys., 603 U.S. 799, 827 (2024) (Kavanaugh, J., concurring) ("The Federal Government and the federal courts

have long understood § 706(2) to authorize vacatur of unlawful

agency rules . . . ."); see also, e.g., Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 36 & n.7 (2020) (affirming vacatur of agency rule).

- 62 -remedial authority that the non-postponement portion of § 705

confers. That reality, we conclude, points against our addressing

any such questions in this case, given that the Government has

developed no meaningful arguments about how they should be

resolved.

V.

For the foregoing reasons, we vacate paragraph 3 of the

April 15, 2025 order and otherwise affirm the District Court's

opinion and order of injunctive relief.

- 63 -