First Circuit Opinion — New York v. Trump (Federal Funding Freeze) (1st Cir.)

Record facts

U.S. Court of Appeals for the First Circuit · No. 25-1236 · Doc. 00118417747 · 2026-03-16 · Docket on CourtListener

Full text

United States Court of Appeals 
For the First Circuit 
  
 
Nos. 25-1236, 25-1413 
STATE OF NEW YORK; STATE OF CALIFORNIA; STATE OF ILLINOIS; STATE 
OF RHODE ISLAND; STATE OF NEW JERSEY; COMMONWEALTH OF 
MASSACHUSETTS; STATE OF ARIZONA; STATE OF COLORADO; STATE OF 
CONNECTICUT; STATE OF DELAWARE; DISTRICT OF COLUMBIA; STATE OF 
HAWAII; STATE OF MAINE; STATE OF MARYLAND; STATE OF MICHIGAN; 
STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NORTH CAROLINA; 
STATE OF NEW MEXICO; STATE OF OREGON; STATE OF VERMONT; STATE OF 
WASHINGTON; STATE OF WISCONSIN; and OFFICE OF THE GOVERNOR OF 
KENTUCKY, ex rel. ANDREW BESHEAR, in his official capacity as 
Governor of the Commonwealth of Kentucky,  
 
Plaintiffs, Appellees, 
v. 
DONALD J. TRUMP, in his official capacity as President of the 
United States; U.S. OFFICE OF MANAGEMENT AND BUDGET; RUSSELL T. 
VOUGHT, in his official capacity as Director of the U.S. Office 
of Management and Budget; U.S. DEPARTMENT OF THE TREASURY; SCOTT 
BESSENT, in his official capacity as Secretary of the Treasury; 
BRANDON L. BEACH, in his official capacity as Treasurer of the 
United States; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; 
ROBERT F. KENNEDY, JR., in his official capacity as Secretary of 
the Department of Health and Human Services; U.S. DEPARTMENT OF 
EDUCATION; LINDA M. MCMAHON, in her official capacity as 
Secretary of Education; FEDERAL EMERGENCY MANAGEMENT AGENCY; 
KAREN S. EVANS, in her official capacity as Senior Official 
Performing the Duties of the Administrator of the U.S. Federal 
Emergency Management Agency; U.S. DEPARTMENT OF TRANSPORTATION; 
SEAN P. DUFFY, in his official capacity as Secretary of 
Transportation; U.S. DEPARTMENT OF LABOR; LORI CHAVEZ-DEREMER, 
in her official capacity as Secretary of Labor; U.S. DEPARTMENT 
OF ENERGY; CHRISTOPHER A. WRIGHT, in his official capacity as 
Secretary of the U.S. Department of Energy; U.S. ENVIRONMENTAL 
PROTECTION AGENCY; LEE M. ZELDIN, in his official capacity as 
Administrator of the U.S. Environmental Protection Agency; U.S. 
DEPARTMENT OF HOMELAND SECURITY; KRISTI NOEM, in her official 
capacity as Secretary of the U.S. Department of Homeland 
Security; U.S. DEPARTMENT OF THE INTERIOR; DOUGLAS J. BURGUM, in 
his official capacity as Secretary of the Interior; U.S. 
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DEPARTMENT OF JUSTICE; PAMELA J. BONDI, in her official capacity 
as Attorney General; U.S. DEPARTMENT OF AGRICULTURE; BROOKE L. 
ROLLINS, in her official capacity as Secretary of Agriculture; 
NATIONAL SCIENCE FOUNDATION; SETHURAMAN PANCHANATHAN, in his 
official capacity as Director of the National Science 
Foundation; U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; 
SCOTT TURNER, in his official capacity as Secretary of Housing 
and Urban Development; U.S. DEPARTMENT OF STATE; U.S. AGENCY FOR 
INTERNATIONAL DEVELOPMENT; MARCO RUBIO, in his official 
capacities as Secretary of State and Acting Administrator of the 
U.S. Agency for International Development; U.S. DEPARTMENT OF 
DEFENSE; PETER HEGSETH, in his official capacity as Secretary of 
Defense; U.S. DEPARTMENT OF VETERANS AFFAIRS; DOUGLAS A. 
COLLINS, in his official capacity as Secretary of Veterans 
Affairs; U.S. DEPARTMENT OF COMMERCE; HOWARD W. LUTNICK, in his 
official capacity as Secretary of Commerce; NATIONAL AERONAUTICS 
AND SPACE ADMINISTRATION; JARED ISAACMAN, in his official 
capacity as Administrator of the National Aeronautics and Space 
Administration; CORPORATION FOR NATIONAL AND COMMUNTIY SERVICE; 
JENNIFER BASTRESS TAHMASEBI, in her official capacity as Interim 
Head of the Corporation for National and Community Service; U.S. 
SOCIAL SECURITY ADMINISTRATION; FRANK J. BISIGNANO, in his 
official capacity as Commissioner of the U.S. Social Security 
Administration; U.S. SMALL BUSINESS ADMINISTRATION; and KELLY L. 
LOEFFLER, in her official capacity as Administrator of the U.S. 
Small Business Administration,  
 
Defendants, Appellants. 
 
 
APPEALS FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF RHODE ISLAND 
 
[Hon. John J. McConnell, Jr., U.S. District Judge] 
 
 
Before 
 
Barron, Chief Judge, 
Montecalvo and Rikelman, Circuit Judges. 
 
 
 
Brian J. Springer, with whom Brett A. Shumate, Assistant 
Attorney General, Yaakov M. Roth, Acting Assistant Attorney 
General, Sara Miron Bloom, Acting United States Attorney, Eric D. 
McArthur, Deputy Assistant Attorney General, Daniel Tenny, and 
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Sean R. Janda, Attorneys, Appellate Staff, Civil Division, U.S. 
Department of Justice, were on brief, for appellants. 
 
Judith N. Vale, with whom Letitia James, Attorney General, 
State of New York, Barbara D. Underwood, Solicitor General, Mark 
S. Grube, Senior Assistant Solicitor General, Rabia Muqaddam, 
Special Counsel for Federal Initiatives, Michael J. Myers, Senior 
Counsel, Molly Thomas-Jensen, Special Counsel, Colleen Faherty, 
Special Trial Counsel, Zoe Levine, Special Counsel for Immigrant 
Justice, Kwame Raoul, Attorney General, State of Illinois, Jane 
Elinor Notz, Solicitor General, Alex Hemmer, Deputy Solicitor 
General, R. Sam Horan, Assistant Attorney General, Rob Bonta, 
Attorney General, State of California, Laura L. Faer, Christine 
Chuang, Supervising Deputy Attorneys General, Nicholas Green, 
Marie Elizabeth Logan, Theodore McCombs, Deputy Attorneys General, 
Andrea 
Joy 
Campbell, 
Attorney 
General, 
Commonwealth 
of 
Massachusetts, Katherine B. Dirks, Chief State Trial Counsel, 
Turner Smith, Deputy Chief, Energy and Environment Bureau, David 
C. Kravitz, State Solicitor, Anna Lumelsky, Deputy State 
Solicitor, Peter F. Neronha, Attorney General, State of Rhode 
Island, Katheryn M. Sabatini, Civil Division Chief, Special 
Assistant Attorney General, Sarah W. Rice, Deputy Chief, Public 
Protection 
Bureau, 
Assistant 
Attorney 
General, 
Leonard 
Giarrano IV, Special Assistant Attorney General, Matthew J. 
Platkin, Attorney General, State of New Jersey, Angela Cai, 
Executive Assistant Attorney General, Jeremy M. Feigenbaum, 
Solicitor General, Shankar Duraiswamy, Deputy Solicitor General, 
Kristen K. Mayes, Attorney General, State of Arizona, Joshua D. 
Bendor, Solicitor General, Philip J. Weiser, Attorney General, 
State of Colorado, Shannon Stevenson, Solicitor General, William 
Tong, Attorney General, State of Connecticut, Michael K. Skold, 
Solicitor General, Jill Lacedonia, Kathleen Jennings, Attorney 
General, State of Delaware, Vanessa L. Kassab, Deputy Attorney 
General, Delaware Department of Justice, Brian L. Schwalb, 
Attorney General, District of Columbia, Andrew Mendrala, Assistant 
Attorney General, Public Advocacy Division, Aaron M. Frey, 
Attorney General, State of Maine, Jason Anton, Assistant Attorney 
General, Anne E. Lopez, Attorney General, State of Hawai'i, 
Kaliko'onālani D. Fernandes, Solicitor General, David D. Day, 
Special Assistant to the Attorney General, Anthony G. Brown, 
Attorney General, State of Maryland, Julia Doyle, Solicitor 
General, Adam D. Kirschner, Senior Assistant Attorney General, 
Dana 
Nessel, 
Attorney 
General, 
State 
of 
Michigan, 
Linus 
Banghart-Linn, Chief Legal Counsel, Neil Giovanatti, Assistant 
Attorney General, Michigan Department of Attorney General, Keith 
Ellison, Attorney General, State of Minnesota, Liz Kramer, 
Solicitor General, Aaron D. Ford, Attorney General, State of 
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Nevada, Heidi Parry Stern, Solicitor General, Office of the Nevada 
Attorney General, Raúl Torrez, Attorney General, State of New 
Mexico, Anjana Samant, Deputy Counsel, N.M. Department of Justice, 
Jeff Jackson, Attorney General, State of North Carolina, Daniel P. 
Mosteller, Associate Attorney General, Dan Rayfield, Attorney 
General, State of Oregon, Benjamin Gutman, Solicitor General, 
Robert A. Koch, Senior Assistant Attorney General, Charity R. 
Clark, Attorney General, State of Vermont, Jonathan T. Rose, 
Solicitor General, Nicholas W. Brown, Attorney General, State of 
Washington, Andrew Hughes, Assistant Attorney General, Leah Brown, 
Assistant Attorney General, S. Travis Mayo, General Counsel, 
Office of the Governor ex rel. Andy Beshear in his official 
capacity as Governor of the Commonwealth of Kentucky, Taylor Payne, 
Chief Deputy General Counsel, Laura C. Tipton, Deputy General 
Counsel, Joshua L. Kaul, Attorney General, State of Wisconsin, and 
Aaron J. Bibb, Assistant Attorney General, were on brief, for 
appellees. 
 
Russell Coleman, Attorney General, and Matthew F. Kuhn, 
Solicitor General, on brief for the Commonwealth of Kentucky as 
amicus curiae supporting appellants. 
 
Alexander Haberbush and Constitutional Counsel Group on brief 
for 
the 
Claremont 
Institute's 
Center 
for 
Constitutional 
Jurisprudence and John C. Eastman as amici curiae supporting 
appellants. 
 
Christina L. Wentworth, Nikhel S. Sus, and Citizens for 
Responsibility and Ethics in Washington on brief for Former Office 
of Management and Budget Officials as amici curiae supporting 
appellees.  
 
David A. O'Neil, Debevoise & Plimpton LLP, Washington, D.C., 
Beatrice A. Walton, Raphael M. Vim, William F. Goncher, and 
Debevoise & Plimpton LLP, New York, NY, on brief for Ilya Somin as 
amicus curiae in support of appellees. 
 
Joshua B. Shiffrin, J. Alexander Rowell, and Bredhoff & 
Kaiser, P.L.L.C. on brief for Legal Scholars of Federal Courts and 
Jurisdiction as amici curiae in support of appellees. 
 
Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, 
Miriam 
Becker-Cohen, 
Nina 
G. 
Henry, 
and 
Constitutional 
Accountability Center on brief for Constitutional Accountability 
Center as amicus curiae supporting appellees.  
 
Samuel R. Bagenstos on brief for Samuel R. Bagenstos as amicus 
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curiae supporting appellees.  
 
Thomas Zimpleman and Natural Resources Defense Council on 
brief for National Resources Defense Council, Inc. as amicus curiae 
supporting appellees. 
 
Vincent Levy, Kevin D. Benish, Charlotte Baigent, Christopher 
M. Kim, and Holwell Shuster & Goldberg LLP on brief for Former 
Executive Branch Officials as amici curiae supporting 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.  
 
Philip S. May, Groombridge, Wu, Baughman and Stone LLP, 
Washington, D.C., Jennifer H. Wu, Eric Alan Stone, Josephine Young, 
Jenny C. Wu, Jennifer Rea Deneault, Peter Sandel, Alexander S. 
Evelson, and Groombridge, Wu, Baughman and Stone LLP, New York, 
NY, on brief for Dr. Arati Prabhakar as amicus curiae supporting 
appellees.  
 
Maura Eileen O'Connor, The Brennan Center for Justice, NYU 
School of Law, Brian A. Sutherland, Melanie C. Gold, and Complex 
Appellate Litigation Group LLP on brief for 157 Members of Congress 
as amici curiae supporting appellees.  
 
Susannah Landes Weaver, Envolve Law, Jonas Monast, Patrick R. 
Jacobi, Alexandra L. St. Romain, and Center for Applied 
Environmental Law and Policy on brief for Law Scholars as amici 
curiae supporting appellees. 
 
 
 
March 16, 2026 
 
 
 
 
 
 
 
 
 
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BARRON, Chief Judge.  These consolidated appeals concern 
events that trace back to the early weeks of the current Trump 
Administration.  In the first appeal, we confront a challenge to 
a preliminary injunction that, among other things, blocks a 
sweeping and unprecedented categorical "freeze" of federal 
financial assistance that various federal agencies are alleged to 
have implemented soon after President Trump took office on January 
20, 2025.  In the other appeal, we confront a challenge to orders 
that enforce the preliminary injunction against one of those 
agencies -- the Federal Emergency Management Agency (FEMA) -- for 
failing to comply with it.  We affirm the preliminary injunction 
in part and vacate it in part.  We affirm the orders enforcing the 
preliminary injunction against FEMA in full. 
I.  
A. 
On January 27, 2025, the Acting Director of the Office 
of Management and Budget (OMB) issued Memorandum M-25-13, entitled 
"Temporary Pause of Agency Grant, Loan, and Other Financial 
Assistance Programs" (the "OMB Memorandum").  It directed "Federal 
agencies to identify and review all Federal financial assistance 
programs and supporting activities consistent with the President's 
policies and requirements," (footnotes omitted) including those 
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set forth in seven executive orders that President Trump issued in 
"the initial days of his Administration."1   
"To implement these orders," the 
OMB 
Memorandum 
instructed, "each agency must complete a comprehensive analysis of 
all of their Federal financial assistance programs to identify 
programs, projects, and activities that may be implicated by any 
of the President's executive orders."  It went on to provide that 
"[i]n the interim, to the extent permissible under applicable law, 
Federal agencies must temporarily pause all activities related to 
obligation 
or 
disbursement 
of 
all 
Federal 
financial 
assistance . . . that may be implicated by the executive orders."   
The OMB Memorandum stated that the "temporary pause will 
become effective" at 5:00 p.m. on January 28, 2025 -- one day after 
the OMB Memorandum was released.  It concluded by directing that 
[e]ach agency must pause: (i) issuance of new 
awards; (ii) disbursement of Federal funds 
under 
all 
open 
awards; 
and 
(iii) other 
relevant agency actions that may be implicated 
 
1 Those executive orders were: Protecting the American People 
Against Invasion, Exec. Order No. 14159, 90 Fed. Reg. 8443 
(Jan. 20, 2025); Reevaluating and Realigning United States Foreign 
Aid, Exec. Order No. 14169, 90 Fed. Reg. 8619 (Jan. 20, 2025); 
Putting America First in International Environmental Agreements, 
Exec. Order No. 14162, 90 Fed. Reg. 8455 (Jan. 20, 2025); 
Unleashing American Energy, Exec. Order No. 14154, 90 Fed. Reg. 
8353 (Jan. 20, 2025); Ending Radical and Wasteful Government DEI 
Programs and Preferencing, Exec. Order No. 14151, 90 Fed. Reg. 
8339 (Jan. 20, 2025); Defending Women from Gender Ideology 
Extremism 
and 
Restoring 
Biological 
Truth 
to 
the 
Federal 
Government, Exec. Order No. 14168, 90 Fed. Reg. 8615 (Jan. 20, 
2025); and Enforcing the Hyde Amendment, Exec. Order No. 14182, 90 
Fed. Reg. 8751 (Jan. 24, 2025). 
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by the executive orders, to the extent 
permissible by law, until OMB has reviewed and 
provided guidance to your agency with respect 
to the information submitted.  
 
The next day, OMB issued "guidance" concerning the OMB 
Memorandum.  It stated that the "pause" was "limited to programs, 
projects, and activities implicated" by the executive orders but 
that the pause did not apply to programs that provide direct 
benefits, such as the Supplemental Nutrition Assistance Program, 
Social Security, Medicare, and Medicaid.   
OMB also circulated a document, "Instructions for 
Federal Assistance Program Analysis in Support of [the OMB 
Memorandum]."  It "required" "[a]ll Federal agencies that provide 
Federal financial assistance" to complete an attached spreadsheet 
and submit it to OMB by February 7, 2025.  
The spreadsheet listed over 2,500 funding lines.  It 
asked administering agencies to report, among other things, 
whether the funding line "has any anticipated obligations or 
disbursement[s]" and "any statutory requirements mandating the 
obligation or disbursement of funds" through March 15, 2025.  
B. 
On January 28, 2025 -- the OMB Memorandum's deadline for 
instituting the "pause" -- twenty-two states and the District of 
Columbia (the "States") filed a complaint in the United States 
District Court for the District of Rhode Island.  The plaintiffs 
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named as defendants President Donald Trump, OMB, the Acting 
Director of OMB, eleven other agencies, and various agency heads 
and officials at those agencies.   
The complaint alleged that the directive in the OMB 
Memorandum to "temporarily pause all activities related to 
obligation or disbursement of all Federal financial assistance" 
within twenty-four hours -- which the complaint referred to as the 
"OMB Directive" -- was a final agency action that violated the 
Administrative Procedure Act (APA).  The complaint alleged that 
the OMB Directive did so because it was "contrary to law" and 
"arbitrary and capricious."  See 5 U.S.C. § 706(2)(A)-(C).  The 
complaint 
further 
alleged 
that 
the 
OMB 
Directive 
was 
unconstitutional on several grounds.  
In support of these claims, the States alleged that they 
receive and rely on significant federal financial assistance to 
provide 
essential 
services 
to 
their 
residents, 
including 
healthcare, disaster relief, and education.  They further alleged 
that the OMB Directive would impair their abilities to provide 
such services.  Those injuries, the States alleged, were 
"compounded" because OMB "provided effectively no notice" to them 
before implementing the OMB Directive and thereby prevented them 
from 
"lessen[ing] 
the 
blow" 
by 
establishing 
reserves, 
appropriating funds through their own legislatures, or taking 
other similar measures.   
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The States sought declaratory and injunctive relief as 
well as vacatur of the OMB Directive.  They also sought a Temporary 
Restraining Order (TRO) to "restrain and enjoin the Agency 
Defendants from implementing or enforcing the OMB Directive."   
C. 
The same day that the States filed their complaint, 
January 28, 2025, the U.S. District Court for the District of 
Columbia heard a separate case about the OMB Memorandum and its 
implementation.  See Nat'l Council of Nonprofits v. Off. of Mgmt. 
& Budget, 763 F. Supp. 3d 13 (D.D.C. 2025).  The plaintiffs in 
that case were various nonprofits.  Id. at 16.  They alleged that 
they relied on federal financial assistance that the OMB Memorandum 
and its implementation put in jeopardy.  Id.  The district court 
granted those plaintiffs' request for an administrative stay and 
ordered the defendants in that case -- OMB and its acting 
director -- to "refrain from implementing [the] OMB Memorandum."  
Id. at 16-17.  
The next day -- January 29, 2025 -- in the case that the 
States had filed, the District Court scheduled a hearing on their 
motion for a TRO for 3:00 that afternoon.  Later that day, OMB 
issued a new memorandum that stated: "OMB Memorandum M-25-13 is 
rescinded.  If you have questions about implementing the 
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President's Executive Orders, please contact your agency General 
Counsel."   
The Government informed the District Court of the 
rescission of the OMB Memorandum and contended that it mooted the 
States' case -- and so their request for injunctive relief.  The 
States argued otherwise.   
For this argument, the States chiefly relied on a 
statement that White House Press Secretary Karoline Leavitt posted 
on social media immediately after the rescission of the OMB 
Memorandum.  In her statement, she asserted: "This is NOT a 
rescission of the federal funding freeze.  It is simply a 
rescission of the OMB memo.  Why?  To end any confusion created by 
the court's injunction.  The President's [executive orders] on 
federal funding remain in full force and effect, and will be 
rigorously implemented."   
The States also relied on declarations from state 
officials.  In those declarations, the state officials averred 
that they did not receive expected funds or were unable to access 
grant portals in the wake of the OMB Directive -- and even so after 
the OMB Memorandum itself had been formally rescinded.   
D. 
On January 31, 2025, the District Court granted the 
States' motion for the TRO.  In the memorandum and order granting 
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that relief, the District Court explained that "[t]he Executive's 
action unilaterally suspends the payment of federal funds to the 
States" without regard to "the authorizing or appropriating 
statute, the regulatory regime, or the terms of the grant itself."  
It further concluded that the States were likely to succeed on the 
merits of "some, if not all" of their claims.  
With respect to the issue of mootness, the District Court 
concluded that "the evidence shows that the alleged rescission of 
the OMB Directive was in name-only."  It pointed to the White House 
Press Secretary's social media post as well as an email that the 
States had put in the record from an official at the Environmental 
Protection Agency (EPA).  That email, which the official sent the 
day after the White House Press Secretary's social media post, 
asserted that the agency was "work[ing] 'diligently to implement 
the [OMB] Memorandum.'" 
Based on this evidence, the District Court concluded 
"that the policies in the OMB Directive that the States challenge" 
were "still in full force and effect" and that "the issues 
presented in the States' TRO motion" were accordingly "not moot."  
The TRO prohibited the Agency Defendants from "imped[ing] the 
States' access" to obligated or awarded federal financial 
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assistance "except on the basis of the applicable authorizing 
statutes, regulations, and terms."2  
E. 
One week later, on February 7, 2025, the States filed a 
motion for a preliminary injunction.  The States submitted 
declarations from various state officials in support of the motion.  
The officials stated in their declarations that they had not 
received expected disbursements or were unable to draw down on 
their open grants.  The officials also described the potential 
impacts of the sudden freeze of federal financial assistance, 
including possible layoffs, reductions in service, and closures 
for childcare programs; probable slowed emergency response times 
to major disasters; and likely reduced levels of service in 
processing, approving, and paying out unemployment insurance 
claims and benefits.  
On 
February 12, 
2025, 
the 
Government 
filed 
its 
opposition to the States' motion for a preliminary injunction.  It 
argued that the rescission of the OMB Memorandum mooted the States' 
case and characterized the States' claims as "directed solely" 
against that document.  The Government did not submit any evidence 
 
2 The Government later appealed the TRO and a subsequent order 
enforcing it, but ultimately asked us to dismiss the appeals, which 
we did.  The TRO and the order enforcing it are not at issue in 
this appeal.   
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of its own in opposing the States' motion for the preliminary 
injunction.  
The following day, the States filed an amended 
complaint.  It named one new plaintiff3 and a dozen additional 
agencies and agency officials as defendants.  It also described 
the agency actions subject to APA review as "[t]he Federal Funding 
Freeze, effectuated through [executive orders], the Unleashing 
Directive,[4] the OMB Directive, and other agency actions 
implementing them as detailed herein."   
The amended complaint included additional factual 
allegations about the "major funding disruptions" that followed 
the issuance of the executive orders, some of which predated the 
OMB Memorandum.  It also asserted that "[e]ven after the purported 
rescission" of the OMB Memorandum, agencies continued to freeze 
federal 
grants, 
"resulting 
in 
widespread 
and 
significant 
 
3 The additional plaintiff was Andrew Beshear, the Governor 
of Kentucky.   
4 The "Unleashing Directive" referred to by the States is an 
OMB memorandum issued on January 21, "Guidance Regarding Section 
7 of the Executive Order Unleashing American Energy."  That 
memorandum directed agencies to "immediately pause disbursement of 
funds appropriated" by the Inflation Reduction Act of 2022, Pub. 
L. No. 117-169, 136 Stat. 1818 (2022), or the Infrastructure 
Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429 (2021), 
"that may be implicated by the policy established" in "Unleashing 
American Energy," Exec. Order No. 14154, 90 Fed. Reg. 8343 
(Jan. 20, 2025).  The specifics of that policy are not relevant to 
this appeal.    
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disruptions" of the States' ability to "provide essential services 
to their residents."  
In addition, the amended complaint alleged that the 
challenged agency actions were contrary to law under the APA, see 
5 U.S.C. § 706(2)(B)-(C), because they violated the Impoundment 
Control Act of 1974, 2 U.S.C. §§ 681-92.  It also set forth an 
equitable ultra vires claim based on the defendants having acted 
beyond the scope of their statutory authority.   
The following day, the States filed their reply to the 
Government's opposition to their preliminary injunction motion.  
In that reply, the States referenced the amended complaint.  They 
urged the District Court to treat the amended complaint as the 
operative complaint for purposes of their preliminary injunction 
motion, notwithstanding that the amended complaint had been filed 
after that motion.  
The District Court held a hearing on the preliminary 
injunction motion on February 21.  On March 6, it granted the 
States' motion for a preliminary injunction.  It also denied the 
Government's request to stay the order pending appeal.  
In its memorandum and order, the District Court rejected 
the Government's contention that the States' claims likely were 
moot.  It found that "the evidence suggests that the OMB 
Directive's rescission was in name only" and that the "substantive 
effect of the" OMB Directive "carries on."  It then applied the 
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voluntary cessation doctrine, concluding that: (1) the "voluntary 
rescission of the OMB Memorandum was a clear effort to moot legal 
challenges to the federal funding freeze" and (2) it was not 
"absolutely clear that the allegedly wrongful behavior could not 
reasonably be expected to recur," as there was "nothing" to 
"suggest[]" that the OMB Directive had been rescinded either 
because it was deemed unnecessary to advance the President's policy 
priorities in light of the executive orders or out of recognition 
that it was contrary to law or in excess of legal authority.  
Finally, the District Court concluded that the rescission of the 
OMB Memorandum did not "provide the States with all the prospective 
relief they ha[d] requested" because the States were "challenging 
a pause on federal funding that was implemented under not only the 
OMB Directive, but also to the [executive orders] incorporated 
therein and other agency actions such as the OMB's issuance of the 
Unleashing [Directive]."   
The District Court also concluded that the States were 
likely to succeed in showing both that they had standing under 
Article III of the U.S Constitution, see U.S. Const. art. III, 
§ 2, cl. 1, and that their APA claims were meritorious.  Citing 
constitutional avoidance principles, the District Court declined 
to address whether the States were likely to prevail on their 
non-APA claims.  It further concluded that the other preliminary 
injunction factors weighed in the States' favor.  See Winter v. 
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Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (setting forth 
factors). 
The preliminary injunction that the District Court 
issued applies to all the agencies and agency officials that the 
States 
named 
as 
defendants 
in 
their 
amended 
complaint -- collectively, the Agency Defendants.  It does not 
apply to the President.  
The 
preliminary 
injunction 
prohibits 
the 
Agency 
Defendants "from reissuing, adopting, implementing, giving effect 
to, or reinstating under a different name the [OMB Directive] with 
respect to" obligated federal funds.  It further directs the Agency 
Defendants to provide a written notice of the preliminary 
injunction to the "federal departments and agencies to which the 
OMB Directive was addressed."  That notice must instruct the 
agencies to release to the States any disbursements of "awarded 
grants, 
executed 
contracts, 
or 
other 
executed 
financial 
obligations that were paused" because of the OMB Directive, 
including the executive orders identified in the OMB Memorandum.  
The District Court also ordered FEMA to submit a status report of 
its compliance because the States had previously alleged that FEMA 
was not complying with the TRO.  
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F. 
The Government timely appealed and filed an application 
with our Court to stay the preliminary injunction during the 
pendency of the appeal.  We denied the stay request.  New York v. 
Trump, 133 F.4th 51, 57 (1st Cir. 2025).   
During the pendency of the appeal, FEMA filed a status 
report in the District Court about its compliance with the 
preliminary injunction.  The report asserted that the claimed 
delays in FEMA's issuance of payments did not reflect a "pause" or 
"freeze" in funding.  It asserted instead that the delays resulted 
from FEMA's "manual review process," which had been put in place 
pursuant to FEMA's independent authority to ensure compliance with 
its regulatory obligations.   
On March 24, 2025, the States filed a motion to enforce 
compliance with the District Court's preliminary injunction based 
on FEMA's alleged noncompliance.  On April 4, 2025, the District 
Court granted the States' motion to enforce compliance with the 
preliminary injunction.   
As relevant here, the District Court concluded that 
"FEMA's adoption of a manual review process . . . is essentially 
an adoption of a funding review scheme that strives to effectuate 
the funding mandates in section 17 of the Invasion [Executive 
Order], which [it] enjoined in its preliminary injunction."  
Accordingly, the District Court "reaffirm[ed] its preliminary 
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injunction order that the Defendants are enjoined from" freezing 
federal funds 
based on the OMB Directive, including funding 
freezes dictated, described, or implied by 
Executive Orders issued by the President 
before rescission of the OMB Directive or any 
other materially similar order, memorandum, 
directive, policy, or practice under which the 
federal government imposes or applies a 
categorical 
pause 
or 
freeze 
of 
funding 
appropriated by Congress.  
G. 
The same day that the District Court granted the States' 
motion to enforce the preliminary injunction against FEMA based on 
its alleged noncompliance, the Supreme Court of the United States 
issued its ruling in Department of Education v. California, 604 
U.S. 650 (2025) (per curiam).  In that case, the district court 
concluded that the states that brought the lawsuit were likely to 
succeed on their APA claims in which they challenged the 
termination of various U.S. Department of Education grants.  Id. 
at 650-51.  The district court in that case then entered a TRO 
that enjoined the Department of Education from terminating various 
grants and also ordered that Department to pay out certain grant 
obligations.  Id. at 650.   
The Department of Education sought an administrative 
stay of the TRO from the Supreme Court, which granted it.  Id. at 
651-52.  The Court explained that the Department of Education was 
"likely to succeed in showing the District Court lacked 
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jurisdiction to order the payment of money under the APA."  Id. at 
651.  That was so, according to the Court, because the APA's 
"limited waiver of [sovereign] immunity does not extend to orders 
'to enforce a contractual obligation to pay money' along the lines 
of what the District Court ordered."  Id. 
Based on the Supreme Court's stay ruling in Department 
of Education, the Government in this case filed a motion for 
reconsideration of the District Court's order granting the States' 
motion to enforce the preliminary injunction against FEMA based on 
its noncompliance.  The Government argued that, under Department 
of Education, the District Court "lacks jurisdiction to consider 
Plaintiffs' enforcement motion" because an "order compelling 
continued payment of funds under . . . particular FEMA grants" was 
essentially an "order[] to enforce a contractual obligation to pay 
money," which was a remedy that the Supreme Court made clear in 
Department of Education is not available under the APA.  (Second 
alteration in original.)  The District Court denied the motion on 
April 14, 2025.  
H. 
On April 28, 2025, the Government timely appealed both 
the District Court's order granting the States' motion to enforce 
and the order denying the Agency Defendants' motion for 
reconsideration of that order.  Upon the Government's unopposed 
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motion, we consolidated that appeal with the Government's appeal 
of the preliminary injunction.  We then heard oral arguments in 
the consolidated appeals.  
II.  
To secure a preliminary injunction, the moving party 
must establish "that [it] is likely to succeed on the merits, that 
[it] is likely to suffer irreparable harm in the absence of 
preliminary relief, that the balance of equities tips in [its] 
favor, and that an injunction is in the public interest."  Winter, 
555 U.S. at 20.  We review the grant of a preliminary injunction 
for abuse of discretion.  N.H. Indon. Cmty. Support v. Trump, 157 
F.4th 29, 34 (1st Cir. 2025).  In conducting that review, we 
"review the legal issues de novo and the factual findings for clear 
error."  Id. 
III. 
The Government's lead challenge to the preliminary 
injunction rests on the contention that the States cannot satisfy 
the "likelihood of success" factor because the OMB Memorandum's 
rescission mooted their case -- and so stripped the District Court 
of Article III subject matter jurisdiction -- almost as soon as 
their case began.  See Powell v. McCormack, 395 U.S. 486, 496 
(1969) ("[A] case is moot when the issues presented are no longer 
'live' or the parties lack a legally cognizable interest in the 
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outcome.").  The Government acknowledges that under the voluntary 
cessation doctrine, the recission of the OMB Memorandum moots the 
case only if "it is absolutely clear [that] the allegedly wrongful 
behavior" that the States challenged "could not reasonably be 
expected to recur."  Bayley's Campground, Inc. v. Mills, 985 F.3d 
153, 158 (1st Cir. 2021) (quoting ACLU of Mass. v. U.S. Conf. of 
Cath. Bishops, 705 F.3d 44, 55 (1st Cir. 2013)); see also FBI v. 
Fikre, 601 U.S. 234, 241 (2024).  But the Government appears to 
contend that it can meet this "formidable burden," Bayley's 
Campground, 985 F.3d at 157 (quoting ACLU of Mass., 705 F.3d at 
55), because it reasons that there is no realistic chance that OMB 
would reissue the OMB Memorandum that was rescinded or any document 
like it.   
The voluntary cessation doctrine would come into play in 
this case, however, only if the OMB Memorandum's rescission caused 
the governmental action that the States are challenging to cease.  
We cannot see how we could conclude that the rescission had that 
consequence.   
The States are challenging the OMB Directive, not the 
piece of paper that contained it.  And the District Court expressly 
found that the rescission of the OMB Memorandum was "in name only" 
because the "substantive effect of the directive [contained in the 
OMB Memorandum] carrie[d] on."  Notably, the Government does not 
address (let alone challenge) that finding, despite it being one 
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of fact that we may review only for clear error.  See Hisp. Affs. 
Project v. Acosta, 901 F.3d 378, 386 (D.C. Cir. 2018) (treating 
the existence of a de facto policy as a factual finding).  And, we 
emphasize, that finding was based on not only the White House Press 
Secretary's "unequivocal statement" immediately following the OMB 
Memorandum's rescission that the "federal funding freeze" itself 
had not been rescinded but also the record evidence of "the 
continued actions of Executive agencies" following the OMB 
Memorandum's rescission, which included evidence of their 
continued freezing of federal financial assistance.  We therefore 
do not see how the Government's asserted ability to meet the 
voluntary cessation doctrine's requirements shows that the OMB 
Memorandum's rescission rendered their case moot, as the 
Government has not carried its burden of showing that the 
rescission of that document "has deprived the [States] of a 
personal stake in the outcome of the lawsuit."  West Virginia v. 
EPA, 597 U.S. 697, 719 (2022) (citation modified) (explaining that 
the party claiming mootness "bears the burden to establish that a 
once-live case has become moot").    
The Government's related mootness argument is also 
unpersuasive.  Here, the Government contends that by rescinding 
the OMB Memorandum, the Agency Defendants gave the States all the 
relief that they sought.  But, given the District Court's factual 
finding that the OMB Directive "carrie[d] on" even after the 
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rescission of the OMB Memorandum, this mootness argument fails for 
the simple reason that the rescission did not give the States any 
relief from the OMB Directive.   
In addition, we note that the District Court correctly 
determined that the amended complaint challenges some agency 
actions to freeze federal funds that began before the OMB 
Memorandum issued.  See Hisp. Affs. Project, 901 F.3d at 387 
(treating the scope of plaintiffs' challenge to a de facto policy 
as a question of law).  Thus, the OMB Memorandum's rescission 
failed to give the States all the relief that they were seeking in 
this respect, too, see Powell, 395 U.S. at 497 ("Where one of the 
several issues presented becomes moot, the remaining live issues 
supply the constitutional requirement of a case or controversy."), 
as (for the reasons we have explained) the States' case was not 
moot at the time that they filed their amended complaint.  
IV. 
We now turn to the Government's remaining arguments as 
to why we must reject the District Court's determination that the 
States have met their burden as to the "likelihood of success" 
factor.  We find these arguments unpersuasive as well. 
A. 
We start with the Government's argument that the 
District Court made a procedural error in ruling that the States 
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were likely to succeed on their APA claims.  This contention rests 
on the fact that when the States moved for the preliminary 
injunction they had filed only their initial complaint and the 
Government's assertion that the initial complaint challenged only 
the OMB Memorandum.   
According to the Government, because the States filed 
the amended complaint only after they filed their preliminary 
injunctive motion, the District Court was barred from relying on 
the allegations that the amended complaint set forth in granting 
the requested preliminary injunction.  Moreover, the Government 
contends, the OMB Memorandum did not itself violate the APA.  Thus, 
the Government reasons that the District Court erred procedurally 
when it ruled that the States were likely to succeed on their APA 
claims, as, in doing so, the District Court necessarily -- but 
impermissibly -- relied 
on the allegations in the amended 
complaint.   
The record shows, however, that the Government did not 
preserve the argument that the District Court erred procedurally 
by relying on the amended complaint in granting the preliminary 
injunction.  The Government first referred to the timing of the 
States' filing of their amended complaint at the hearing on the 
States' motion requesting the preliminary injunction.  The 
Government did so at that time only through bare observation by 
its counsel that "shortly before filing their reply brief, 
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Plaintiffs . . . filed an amended complaint seeking to broaden 
their claims, no longer just challenging th[e] singular OMB memo 
but challenging the so-called funding freeze."    
Unsurprisingly, the District Court did not treat that 
mere characterization of what had transpired in the proceedings up 
until that point as if it were an argument that the amended 
complaint had no legal bearing on the States' motion for 
preliminary injunctive relief.  Nor did the District Court have 
any evident reason to treat that account as if it were such an 
argument.  The States made it known before the hearing that they 
were relying on the amended complaint -- which had been filed more 
than a week earlier -- in seeking the preliminary injunction, and 
the substance of the allegations in the amended complaint were 
directly addressed by both parties at the hearing.  
We review unpreserved arguments only for plain error.  
Universitas Educ., LLC v. Granderson, 98 F.4th 357, 373 (1st Cir. 
2024).  The Government develops no argument, however, that the 
District Court made an error of that plain sort in taking account 
of the allegations in the amended complaint.  Thus, the Government 
has waived any such argument on appeal.  See id. 
B.  
The Government separately argues that, even if the 
States' APA claims properly target more than just the OMB 
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Memorandum, the States still are not likely to succeed on the 
merits as to any of those claims.  The Government argues that, in 
that event, the States would necessarily be relying on a broader 
challenge to the "Federal Funding Freeze," which would mean that 
they would be advancing an impermissible "programmatic attack on 
federal spending."  That is so, the Government asserts, because 
the States' APA claims, as set forth in the amended complaint, 
take aim at "a category of actions" rather than "any particular 
decision."  Therefore, the Government urges us to conclude that by 
"amalgamat[ing]" "countless discrete decisions into a single, 
challengeable 
'Federal 
Funding 
Freeze,'" 
the 
States 
are 
necessarily mounting the type of "programmatic attack" under the 
APA that the Supreme Court "squarely rejected" in Norton v. 
Southern Utah Wilderness Alliance, 542 U.S. 55, 66-67 (2004), on 
the ground that it failed to challenge discrete agency actions.  
We rejected this same argument when we denied the 
Government's application for a stay of the preliminary injunction 
pending appeal.  New York, 133 F.4th at 66-69.  It fares no better 
on direct appeal. 
"Norton does make clear that the APA permits review of 
only discrete final agency actions and 'precludes the kind of broad 
programmatic attack [the Supreme Court] rejected in Lujan v. 
National Wildlife Federation, 497 U.S. 871 (1990).'"  Id. at 67 
(alteration in original) (quoting Norton, 542 U.S. at 64).  But it 
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also clarified "that the 'broad programmatic attack' at issue in 
Lujan" was to the Bureau of Land Management's land withdrawal 
review program, which "was not [itself] an 'agency action.'"  Id. 
(alteration in original) (quoting Norton, 542 U.S. at 64).  And 
Lujan itself recognized that if "some specific order or 
regulation[] appl[ies] some particular measure across the board to 
all 
individual 
classification 
terminations 
and 
withdrawal 
revocations, and . . . that order or regulation is final . . . it 
can of course be challenged under the APA."  Lujan, 497 U.S. at 
890 n.2.  
The Government does not argue that the States' challenge 
to the OMB Directive is itself an impermissible "programmatic 
attack."  It also fails to explain why an individual agency-wide 
freeze of the kind that the District Court found that each Agency 
Defendant 
likely 
had 
implemented 
is 
not 
the 
kind 
of 
across-the-board but still discrete agency action that Lujan 
explains may be challenged under the APA.   
True, the Government argues that the District Court 
misconstrued the scope of the States' challenge by treating it as 
if it were a challenge to more than the OMB Memorandum.  But, as 
we explained above, the States' amended complaint makes clear that 
the States are challenging a broader set of agency actions: the 
OMB Directive and the agency-wide, categorical funding freezes 
allegedly implemented by each Agency Defendant.  As we also 
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explained above, the Government has not given us any reason to 
agree with its unpreserved contention that the States' amended 
complaint cannot be considered in assessing the merits of their 
motion requesting the preliminary injunction. 
Thus, as the case comes to us, the States are challenging 
the discrete, agency-wide categorical freeze that each of the 
Agency Defendants allegedly put in place, as well as the OMB 
Directive.  And so, because nothing prevents a plaintiff from 
challenging more than a single discrete final agency action in a 
single suit, we see no merit to the Government's argument that the 
States' APA claims are likely to fail for constituting an 
impermissible "programmatic attack."  
C. 
That brings us to the Government's contention 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."  The Government relies for 
this contention on § 701(a)(2) of the APA, which makes a final 
agency action unreviewable when it is "committed to agency 
discretion by law."  5 U.S.C. § 701(a)(2).   
Because the APA "embodies a 'basic presumption of 
judicial review,'" Dep't of Com. v. New York, 588 U.S. 752, 771 
(2019) (quoting Abbott Lab'ys v. Gardner, 387 U.S. 136, 140 
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(1967)), § 701(a)(2)'s exception to reviewability applies only to 
"those rare administrative decisions traditionally left to agency 
discretion," Dep't of Homeland Sec. v. Regents of the Univ. of 
Cal., 591 U.S. 1, 17 (2020) (citation modified), "or when the 
relevant statute 'is drawn so that a court would have no meaningful 
standard against which to judge the agency's exercise of 
discretion,'" Union of Concerned Scientists v. Wheeler, 954 F.3d 
11, 17 (1st Cir. 2020)(quoting Lincoln v. Vigil, 508 U.S. 182, 191 
(1993)).  As a result, to succeed on this argument, the Government 
needs to identify the agency actions that likely are "committed to 
agency discretion by law" that the District Court either relied on 
in issuing the preliminary injunction or that the injunction bars.  
5 U.S.C. § 701(a)(2).  The Government has failed to do so.  
The Government appears to concede that, with respect to 
at least some of the affected funding streams, the Agency 
Defendants do not possess unreviewable discretion in allocating 
and disbursing federal financial assistance.  Nonetheless, the 
Government likens many of the other agency actions that the States 
challenge to the agency action that was challenged in Lincoln v. 
Vigil, which the Supreme Court deemed to be an action "committed 
to agency discretion by law."  508 U.S. at 193 (quoting 5 U.S.C. 
§ 701(a)(2)).  The Government argues that it follows that the 
preliminary injunction at issue here impermissibly enjoins 
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"funding decisions within broad statutory mandates that do not 
limit an agency's bases for decisionmaking."  
As support for this line of argument, the Government 
identifies a few specific statutes that it contends afford the 
relevant agencies that are defendants here latitude "over how to 
achieve the program's purposes."  See, e.g., 16 U.S.C. § 2105 
(establishing "urban and community forestry challenge cost-sharing 
program" for which the Secretary of the Department of Agriculture 
shall make awards "on a competitive basis"); 42 U.S.C. § 7437 
(authorizing the EPA Administrator to "competitively award grants" 
for "developing a plan for the reduction of greenhouse gas air 
pollution").  The Government thus appears to be of the view that, 
notwithstanding the APA's presumption of reviewability, the 
limited statutory examples that it has put forth suffice to cast 
doubt on whether virtually any of the States' APA claims target 
agency actions that can be reviewed under § 701(a)(2).   
Even if we were to accept that doubtful premise, however, 
we still would reject the Government's position, given what Lincoln 
holds.  There, the Supreme Court held that the Indian Health 
Service's decision to discontinue a program that provided services 
"to handicapped Indian children in the Southwest" was "'committed 
to agency discretion by law.'"  Lincoln, 508 U.S. at 184 (quoting 
5 U.S.C. § 701(a)(2)).  But the Supreme Court did so on the limited 
grounds that "[t]he allocation of funds from a lump-sum 
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appropriation is [an] administrative decision traditionally 
regarded as committed to agency discretion," id. at 192, and the 
relevant statutes spoke "about Indian health only in general terms" 
and did "not so much as mention" the program at issue, id. at 194.   
Thus, contrary to the Government's suggestion, Lincoln 
did not address an agency's discretion to withhold obligated funds.  
It thus did not hold that agencies have unreviewable discretion to 
categorically stop disbursing obligated funds, such that they may 
indefinitely pause their disbursement of them in a categorical 
fashion without, for example, having a reasoned explanation for 
doing so, as the APA ordinarily requires for any final agency 
action.5  See Pol'y & Rsch., LLC v. HHS, 313 F. Supp. 3d 62, 76 
(D.D.C. 2018) (reviewing agency decision to terminate grant 
funding for arbitrariness and capriciousness); cf. Train v. City 
of New York, 420 U.S. 35, 41-46 (1975) (holding the Clean Water 
 
5 For similar reasons, the Government's citation to Milk 
Train, Inc. v. Veneman, 310 F.3d 747 (D.C. Cir. 2002), is equally 
unpersuasive.  At issue in that case was the Secretary of 
Agriculture's implementation of a subsidy program for milk 
producers.  Id. at 748.  The D.C. Circuit held the Secretary's 
decision to cap the amount of milk production eligible for 
assistance was unreviewable under the APA because the relevant 
statute committed that decision to the agency's discretion by 
directing the funds be provided "in a manner determined appropriate 
by the Secretary."  Id. at 751 (quoting Pub. L. No. 106-78, § 805, 
113 Stat. 1135, 1179 (1999)).  For the reasons we have explained, 
the challenged agency actions here are not of the kind Vigil 
treated as having been similarly committed to agency discretion, 
and the Government identifies no statutory provisions containing 
language like that relied on in Milk Train. 
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Act did not give the EPA Administrator discretion to withhold 
appropriated funds). 
D. 
The 
Government's 
remaining 
argument 
about 
the 
"likelihood of success" factor concerns the District Court's "not 
in accordance with the law" and "arbitrary and capricious" rulings.  
See 5 U.S.C. § 706(2)(A).  We can bypass the Government's arguments 
about why the States are unlikely to be able to show that the 
challenged agency actions were "not in accordance with the law" 
because we conclude that there is no merit to the Government's 
arguments that the States are unlikely to be able to show that 
those actions were arbitrary and capricious.  
1. 
Agency action is arbitrary and capricious "if it is not 
'reasonable and reasonably explained.'"  Ohio v. EPA, 603 U.S. 
279, 292 (2024) (quoting FCC v. Prometheus Radio Project, 592 U.S. 
414, 423 (2021)).  A court therefore "must ensure . . . that the 
agency has offered a satisfactory explanation for its action, 
including a rational connection between the facts found and the 
choice made."  Id. (citation modified). 
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."  Regents, 591 U.S. at 20 (quoting 
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Michigan v. EPA, 576 U.S. 743, 758 (2015)).  It also must be 
mindful that an agency's explanation for its action needs only to 
be "clear enough that its 'path may reasonably be discerned.'"  
Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016) (quoting 
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 
281, 286 (1974)).   
When an agency fails "to provide even that minimal level 
of analysis," however, "its action is arbitrary and capricious."  
Id.  Additionally, when offering an explanation for its action, 
the agency "must 'be cognizant that longstanding policies may have 
"engendered serious reliance interests that must be taken into 
account,'"" Regents, 591 U.S. at 30 (quoting Encino Motorcars, 579 
U.S. at 222), because it acts arbitrarily and capriciously by 
"ignor[ing] such matters," id. (quoting FCC v. Fox Television 
Stations, Inc., 556 U.S. 502, 515 (2009)). 
2. 
The Government relies heavily on the OMB Memorandum to 
make the case that the District Court's "arbitrary and capricious" 
rulings are wrong.  It asserts that the OMB Memorandum makes clear 
that freezing federal financial assistance "was necessary to 
minimize 
the 
expenditure 
of 
funds 
inconsistent 
with 
the 
Administration's policy priorities while the Administration 
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reviewed funding" "because substantial federal funds are spent 
every day."   
Thus, in the Government's view, the OMB Memorandum's 
objective was to "safeguard valuable taxpayer resources" and 
"effectuate the President's Executive Orders."  The Government 
also contends that the OMB Memorandum adequately considered the 
recipients' reliance interests because it exempted from the pause 
direct assistance given to individuals and payments required by 
law, and allowed for exceptions on a case-by-case basis.  In that 
regard, the Government emphasizes, the OMB Memorandum expressly 
stated that agencies must comply with its directive only "to the 
extent permissible by law."  
As we have explained, however, we cannot accept as a 
premise -- insofar as the Government's argument requires us to do 
so -- that the States challenge only the OMB Memorandum.  We 
instead proceed on the understanding that they challenge the 
"funding freeze" that they allege was directed through the OMB 
Directive in the OMB Memorandum and implemented through the 
individual Agency Defendants' categorical, agency-wide freezes, 
some of which they allege began even before the OMB Memorandum 
issued.   
That is significant because the District Court found 
that the States were likely to succeed in showing both that the 
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Agency Defendants took those actions to implement "the freeze" and 
that  
[t]he breadth and immediacy of the funding 
freeze and the catastrophic consequences that 
flowed reflects the Agency Defendants' failure 
to: (1) meaningfully consider the important 
aspects of the problems -- namely, the plain 
implications of withholding trillions of 
dollars of federal financial assistance; and 
(2) reflect if the freeze fell within the 
bounds of their statutory authority.   
(Citation modified.)  So, to make the case that the OMB 
Memorandum's text shows that the challenged agency actions are not 
likely arbitrary and capricious, the Government needs to do one of 
two things: It needs either to undermine the District Court's 
finding that the Agency Defendants likely took the agency-wide 
actions 
to 
freeze 
financial 
assistance 
categorically 
and 
immediately or it needs to explain why the text of the OMB 
Memorandum shows that, in taking those actions, the Agency 
Defendants likely acted based on reasoned assessments. 
The Government does not meaningfully dispute, however, 
the District Court's determination that the Agency Defendants 
likely did institute the alleged agency-wide categorical freezes.  
And the Government also does not address whether, in taking those 
actions, the Agency Defendants failed to make reasoned assessments 
about the impacts of those actions and the scope of their legal 
authority.   
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For example, 
the Government asserts 
that 
"[t]he 
Memorandum contemplated that funds would continue being disbursed 
in circumstances where reliance interests would be most acute, 
including for direct assistance to individuals, payments required 
by law, and payments that agencies believed appropriate to continue 
on a case-by-case basis."  But the relevant question is whether, 
in implementing the challenged funding freeze, the Agency 
Defendants considered whether "payments [were] required by law" 
and evaluated whether the payments were "appropriate" on "a 
case-by-case basis."6  The OMB Memorandum itself obviously does 
not show that the Agency Defendants did so with respect to any of 
the freezes that they implemented in advance of that document's 
issuance.  Nor can the OMB Memorandum show as much as to those 
freezes that were implemented in its wake, except, we suppose, by 
 
6 We recognize that the Government separately asserts that 
"numerous covered grant programs allow funding pauses."  As we 
have already explained, however, because we affirm the District 
Court's 
preliminary 
injunction 
on 
arbitrary-and-capricious 
grounds, we need not delve into the issue of whether the 
categorical freezes were contrary to law.  To the extent that the 
Government means to advance this argument to challenge the District 
Court's determination that the agency actions likely were 
arbitrary and capricious, it fails to explain how this argument 
undermines that ruling.  Even if the affected funding streams allow 
for pauses based on policy priorities, the Government does not 
explain how the categorical agency-wide freezes accounted for the 
reliance interests at stake that the District Court determined the 
States were likely to succeed in showing had been ignored.  
Moreover, the authority to suspend funding based on a determination 
that the program no longer advances agency priorities does not 
necessarily include the authority to suspend funding before such 
a determination has been made.   
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inference.  Yet the District Court reasonably found, based on the 
immediate and categorical nature of the agency-wide freezes that 
it supportably found were implemented, that the States were likely 
to succeed in showing that the Agency Defendants did not in fact 
consider such things.  Nothing in the OMB Memorandum itself 
undermines that finding.  
Moreover, the Government does not point to anything 
other than the text of the OMB Memorandum when it comes to how the 
Agency Defendants decided to take the challenged actions.  Indeed, 
although the States introduced over a thousand pages documenting 
the harms that they faced as a result of the funding freeze, the 
Government offered no evidence of its own to indicate that the 
Agency Defendants' decision-making processes considered rather 
than ignored the States' reliance interests in the already 
obligated federal financial assistance that they receive but that 
the challenged agency actions would jeopardize.  
As to OMB's action in issuing the challenged OMB 
Directive itself, it is important to remember that the States' 
challenge that action rather than the OMB Memorandum.  It is also 
important to keep in mind that, in assessing whether the OMB 
Directive was arbitrary and capricious, the District Court relied 
not only on the text of the OMB Memorandum but also on how the OMB 
Directive operated after that document had been formally 
rescinded.   
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It is in that context that the District Court determined, 
based on "the undisputed evidence" before it, that the "to the 
extent permissible by law" caveat in the OMB Memorandum "was 
nothing more than window dressing."  Overall, the District Court 
concluded, the OMB Directive "amounted to a command, not a 
suggestion, that Agency Defendants shall execute a categorical, 
indefinite funding freeze to align funding decisions with the 
President's priorities."  
The District Court supported that conclusion by pointing 
to the fact that the OMB Memorandum provided that the OMB Directive 
was "effective on January 28[, 2025]" and stated that "Federal 
agencies 
must 
temporarily 
pause" 
all 
implicated 
funding 
activities.  It then explained that "the mere twenty-four hours 
that the OMB gave agencies to discern which of thousands of funding 
freezes must or must not be paused flouts the [Agency] Defendants' 
argument[] that" the "to the extent permissible by law" 
"instruction mitigated the harm that the pause caused."  See Nat'l 
Council of Nonprofits v. Off. of Mgmt. & Budget, 763 F. Supp. 3d 
36, 51 (D.D.C. 2025) ("[I]t is unclear whether twenty-four hours 
is sufficient time for an agency to independently review a single 
grant, let alone hundreds of thousands of them."). 
The Government counters that the District Court misread 
the OMB Memorandum, chiefly by emphasizing the OMB Memorandum's 
"to the extent permissible by law" language.  But the record 
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supportably shows that, as the District Court found, the agencies 
and agency officials to whom the OMB Memorandum was directed 
consistently acted based on the alleged OMB Directive, which those 
agencies and agency officials understood to require them to freeze 
first and ask questions later.7   
Thus, while we agree that "[t]he mere possibility that 
some agency might make a legally suspect decision" with regard to 
a policy "does not justify an injunction against enforcement of a 
policy" that may properly be implemented in many circumstances, 
Building & Construction Trades Department, AFL-CIO v. Allbaugh, 
 
7 The Government does point to OMB's follow-on guidance as 
"making clear that agencies should only pause funding 'to the 
extent permissible by law.'"  But, although the guidance does state 
that the OMB Memorandum requested agencies to "temporarily pause, 
to the extent permitted by law, grant, loan or federal financial 
assistance programs" implicated by the executive orders, it later, 
in response to the question, "Is the pause of federal financial 
assistance an impoundment," answered, "No, it is not an impoundment 
. . . .  It is a temporary pause to give agencies time to ensure 
that financial assistance conforms to the policies set out in the 
President's Executive Orders, to the extent permitted by law."  
There, the "to the extent permitted by law" caveat modifies the 
assurance that financial assistance conforms to the President's 
executive orders, not the pause itself.  Further, the spreadsheet 
that OMB required agencies to complete "in support" of the OMB 
Memorandum included over 2,500 funding programs -- including 
programs that the OMB Memorandum purportedly exempted from the 
pause, such as individual assistance programs like the Special 
Supplemental Nutrition Program for Women, Infants, and Children.  
And the States submitted evidence showing that even after 
January 29, agencies understood the OMB Directive to mandate a 
categorical freeze of the funding streams implicated by the 
executive orders, while the Government offered no evidence to 
counter that showing.  We thus do not agree that the follow-on 
guidance "ma[de] clear" that the Agency Defendants only were to 
pause funding "to the extent permissible by law."  
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295 F.3d 28, 33 (D.C. Cir. 2002), that principle has no relevance 
here.  As we have explained, the District Court made a supportable 
finding about the content of the OMB Directive that was informed 
by the record evidence of the consistent way that the intended 
recipients of the OMB Directive understood it.  And, based on that 
record 
evidence, 
the 
District 
Court 
determined 
that, 
notwithstanding the "to the extent permitted by law" language in 
the OMB Memorandum, OMB had ordered, through the OMB Directive, 
the immediate and categorical freezing of federal financial 
assistance that the individual Agency Defendants then implemented 
by imposing their own agency-wide categorical freezes.  See City 
& Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1239 (9th Cir. 
2018) ("Savings clauses are read in their context . . . ."); cf. 
Dep't of Com., 588 U.S. at 785 ("[W]e are 'not required to exhibit 
a naiveté from which ordinary citizens are free.'" (quoting United 
States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977))).8   
Moreover, we agree with the District Court that the 
States are likely to succeed in showing that OMB acted arbitrarily 
and capriciously by directing the Agency Defendants to freeze 
 
8 Because we conclude that the District Court's analysis of 
the States' claim that the OMB Directive and agency-wide freezes 
were arbitrary and capricious supports its conclusion that the 
States were likely to succeed on the merits of their APA claims, 
we do not reach the other grounds considered by the District 
Court -- that the funding freeze was contrary to the Impoundment 
Control Act and appropriation laws.  
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obligated funds in this immediate and categorical way.  By doing 
so, the District Court explained, OMB directed the Agency 
Defendants to freeze such funds without considering an obvious 
aspect of the problem -- namely, the reliance interests of the 
recipients of the obligated federal funds that were to be frozen.  
See Regents, 591 U.S. at 33 (explaining that when an agency changes 
course, it must "assess whether there were reliance interests, 
determine whether they were significant, and weigh any such 
interests against competing policy concerns").  We thus agree that 
the States are likely to succeed in showing that it was "arbitrary 
and capricious to ignore such matters."  Id. at 30 (quoting Fox 
Television, 556 U.S. at 15). 
V.  
The Government separately challenges the preliminary 
injunction based on the remaining Winter preliminary injunction 
factors.  See 555 U.S. at 20.  Specifically, it argues that the 
States failed to show that they are "likely to suffer irreparable 
harm in the absence of preliminary relief, that the balance of 
equities tips in [their] favor, [or] that an injunction is in the 
public interest."  Id.  Once again, we disagree. 
A.  
With respect to irreparable harm, the Government argues 
that the States "have no cognizable interest in receiving federal 
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funds to which they are not legally entitled or on a timeline that 
is not legally compelled."  The argument presupposes, however, 
that the States are not likely to succeed on the merits of their 
APA claims.  But, as we have explained, the Government has failed 
to show that the District Court erred in ruling that the States 
are likely to succeed in doing just that.  
The Government also argues as to "irreparable harm" that 
the States "can bring an action in an appropriate forum" and 
ultimately "will receive any funds that agencies are legally 
obligated to disburse."  The Government points to Department of 
Education, 604 U.S. at 652, which ruled that the plaintiffs there 
"would not suffer irreparable harm" in part because "they can 
recover any wrongfully withheld funds through suit in an 
appropriate forum."  This argument fails to account, however, for 
the nonpecuniary harms that the District Court found would follow 
from the categorical freeze of federal funds.  These harms include, 
among 
others, 
"catastrophic[] 
disrupt[ion]" 
to 
"student 
instruction"; 
possible 
"layoffs, 
reductions 
in 
service, 
and . . . closures" of childcare programs; and "significant[] 
impediments to "the delivery of basic health care services" to 
vulnerable populations, and "upend[ing]" state budgets and leading 
states to incur debts due to the unanticipated loss of obligated 
funds.  See Rhode Island v. Trump, 155 F.4th 35, 49 (1st Cir. 2025) 
(concluding that follow-on effects from loss of funding may 
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constitute irreparable harm and collecting cases to similar 
effect); cf. Dep't of Educ., 604 U.S. at 652 (basing irreparable 
harm conclusion in part on the plaintiffs' representation "that 
they have the financial wherewithal to keep their programs 
running").   
B. 
As for the public interest and the balance of the 
equities, the Government identifies three harms on their side of 
the scale.  First, it points to "interfere[nce] with agencies' 
ability to exercise their lawful authorities to implement the 
President's policy directives," which it contends undermines the 
separation of powers.9  Second, it points to the absence of any 
"guarantee" that funds paid to the States pursuant to the 
preliminary injunction "would be retrievable . . . after the 
fact."  And, third, it points to a chilling effect on decisions by 
the Agency Defendants to take "legally permitted actions to review 
and realign funding," particularly in light of "the risk of 
contempt proceedings" and the preliminary injunction's assertedly 
"vague instructions."  The Government then asserts that, 
collectively, these three harms are so substantial that the 
 
9 The Agency Defendants similarly suggest that harm also 
arises from the District Court "micromanaging the administration 
of federal funds."   
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equities weigh in its favor, seemingly even if the States are 
likely to show irreparable harm.  
The Government would suffer the first two of these 
asserted harms, however, only if the preliminary injunction barred 
"lawful conduct."  But, as we have explained, the Government fails 
to show that the States are not likely to succeed on the merits of 
their APA claims.  
That brings us to the third asserted harm -- the 
chilling effect -- which the Government traces to the preliminary 
injunction's assertedly "vague instructions."  As the Government 
sees it, those "instructions" give the Agency Defendants too little 
"guidance" as to what the preliminary injunction prohibits.  
As we explained in our opinion denying a stay pending 
appeal, however, the injunction meets the requirements of Federal 
Rule of Civil Procedure 65 by describing its restraints in 
"reasonable detail."  New York, 133 F.4th at 72 (quoting Fed. R. 
Civ. P. 65(d)(1)(C)).  Contrary to the Government's supposition, 
the preliminary injunction does not "allow[] plaintiffs to bring 
all manner of funding disputes to a single district judge."  By 
its very terms, the preliminary injunction permits the States to 
bring to the District Court only those disputes in which they 
allege that funds are withheld "based on the OMB Directive, 
including funding freezes dictated, described, or implied by" the 
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executive orders issued by President Trump before the rescission 
of the OMB Memorandum.  
The Government separately tries to support its claim of 
a chilling effect by directing our attention to the District 
Court's order enforcing the preliminary injunction.  It suggests 
that this order illustrates the broad reach of the preliminary 
injunction, characterizing the District Court as exercising its 
authority over funding decisions "when any connection can be traced 
back to" an executive order identified in the OMB Memorandum.  On 
that basis, it argues that the Agency Defendants would be chilled 
in their exercise of lawful authority when faced with "the risk of 
contempt proceedings."   
In its order granting the motion to enforce, however, 
the District Court expressly found that FEMA's funding review 
process was not undertaken pursuant to FEMA's "independent 
regulatory authority."  Instead, based on the temporal proximity 
of FEMA's funding policy to the OMB Directive and the language of 
various memoranda by FEMA leadership, the District Court found 
that FEMA's "manual review process" was "essentially an adoption 
of a funding review scheme that strives to effectuate the funding 
mandates" in one of the executive orders identified by the OMB 
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Directive.10  Given those findings, we fail to see how that order 
reveals that the preliminary injunction chills the Agency 
Defendants' exercise of lawful conduct.   
Even if we were to assume, however, that the injunction 
might in theory chill some lawful agency action, the Government 
does 
not 
meaningfully 
explain 
why 
that 
mere 
possibility 
constitutes a harm substantial enough to outweigh the harm that 
States allege that they will suffer from the agency actions that 
they challenge.  Nor does the Government explain why that mere 
possibility suffices to overwhelm the public interest in blocking 
the challenged agency actions insofar as the States are likely to 
succeed in showing that those actions violate the APA.  We 
therefore conclude that the Government has not shown that District 
Court abused its discretion in concluding that the remaining Winter 
factors support the preliminary injunction. 
VI. 
We still must address the Government's argument that the 
preliminary injunction is overly broad because it impermissibly 
orders the payment of money to remedy what are essentially contract 
 
10 The executive order was "Protecting the American People 
Against Invasion," Exec. Order No. 14159, 90 Fed. Reg. 8443 
(Jan. 20, 2025).  In relevant part, it directed the Secretary of 
Homeland 
Security 
to 
"ensure 
that 
so-called 
'sanctuary' 
jurisdictions, which seek to interfere with the lawful exercise of 
Federal law enforcement, do not receive access to Federal funds."  
Id. at 8446, § 17.   
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claims.11  Here, we agree that the preliminary injunction is too 
broad in some respects. 
A. 
After the District Court entered this preliminary 
injunction, the Supreme Court decided Department of Education v. 
California, 604 U.S. 650 (2025) (per curiam), and National 
Institutes of Health v. American Public Health Association, 145 
S. Ct. 2658 (2025).  In both cases, the federal government asked 
the Supreme Court to stay preliminary injunctions that vacated the 
termination of grants awarded by executive branch departments or 
agencies.  Dep't of Educ., 604 U.S. at 650; Nat'l Insts. of Health, 
145 S. Ct. at 2659.  The Supreme Court granted stays with respect 
to the grant terminations, explaining that "[t]he [APA]'s 'limited 
waiver of [sovereign] immunity' does not provide the District Court 
with jurisdiction to adjudicate claims 'based on' . . . grants or 
to order relief designed to enforce any 'obligation to pay money' 
pursuant to those grants."  Nat'l Insts. of Health, 145 S. Ct. at 
2659 (third alteration in original) (quoting Dep't of Educ., 604 
U.S. at 651); accord Dep't of Educ., 604 U.S. at 651-52.  
 
11 In its briefing, the Government framed this argument as a 
reason why the District Court erred in its merits analysis.  We 
understand the point, however, to relate to the relief ordered.  
See 5 U.S.C. § 702 (sovereign immunity waiver does not "confer[] 
authority to grant relief if any other statute that grants consent 
to suit expressly or impliedly forbids the relief which is 
sought").  
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Drawing on 
Department of Education 
and 
National 
Institutes of Health, the Government argues that the District Court 
"lacks the power to order direct monetary payments" to resolve 
"contractual disputes."  That is so, the Government contends, 
because those decisions show that the Tucker Act, 28 U.S.C. 
§ 1491(a)(1), requires that contract claims for payment of moneys 
be brought in the Court of Federal Claims.  Thus, the Government 
argues, the District Court exceeded its authority "to the extent 
that contractual disputes fall within the scope of the preliminary 
injunction."  For that reason, the Government contends, "the 
injunction cannot stand in its current form."  
B. 
The Tucker Act poses no bar to the first paragraph of 
the preliminary injunction.  Nothing in that paragraph orders the 
payment of money.  It simply prohibits the Agency Defendants "from 
reissuing, 
adopting, 
implementing, 
giving 
effect 
to, 
or 
reinstating under a different name" the OMB Directive.  Cf. Nat'l 
Insts. of Health, 145 S. Ct. at 2662 n.1 (Barrett, J., concurring) 
("If a district court decides that agency guidance violates the 
APA, it may vacate the guidance, preventing the agency from using 
it going forward."). 
The Tucker Act also does not cast doubt on the second 
paragraph of the preliminary injunction.  That paragraph enjoins 
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the 
Agency 
Defendants 
from 
"pausing, 
freezing, 
blocking, 
canceling, suspending, terminating, or otherwise impeding the 
disbursement of appropriated federal funds to the States . . . 
based on the OMB Directive."  Read in context, that paragraph 
merely further specifies the portion of the preliminary injunction 
that bars the Agency Defendants from "implementing" or "giving 
effect to" the OMB Memorandum.  See Fed. R. Civ. P. 65(d)(1)(C) 
(requiring orders granting injunctions to "describe in reasonable 
detail" the restrained acts); cf. Axia Netmedia Corp. v. Mass. 
Tech. Park Corp., 889 F.3d 1, 12 (1st Cir. 2018) ("The specificity 
requirements are not merely technical but are designed to prevent 
uncertainty and confusion and to avoid basing a contempt citation 
on a decree too vague to be understood." (citation modified)).  
So, we do not understand that paragraph of the preliminary 
injunction to order direct money payments either.   
There also is no Tucker Act-based problem with the 
paragraph of the preliminary injunction that requires the Agency 
Defendants to "provide written notice" of the preliminary 
injunction "to all federal departments and agencies to which the 
OMB Directive was addressed" and to "instruct those departments 
and agencies that they may not take any steps to implement, give 
effect to, or reinstate under a different name . . . the OMB 
Directive."  It, too, does not order the payment of money. 
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The fourth paragraph of the preliminary injunction, 
however, is a different story.  There, the District Court ordered 
the Agency Defendants "to release and transmit any disbursements 
to the States on awarded grants, executed contracts, or other 
executed financial obligations that were paused on the grounds of 
the OMB Directive and Executive Orders included by reference 
therein or issued before the rescission of the OMB Directive."  In 
this paragraph, the District Court ordered specific performance 
with respect to payment to remedy the States' contractual injuries 
as to "awarded grants" and "executed contracts."  But, under the 
Supreme Court's recent pronouncements regarding the interaction 
between the APA and the Tucker Act, it is likely the District Court 
cannot do so.  See Nat'l Insts. of Health, 145 S. Ct. at 2659. 
The States disagree with this conclusion.  In their view, 
Department of Education is distinguishable because it concerned 
claims challenging grant terminations as such, whereas the States' 
claims here do not turn on "the terms of any particular award."  
Instead, the States contend, their claims only the Agency 
Defendants' "broad, categorical freezes on obligated funds" 
without review of applicable statutory, regulatory, or grant 
terms.  
The plaintiffs' claims in National Institutes of Health, 
however, similarly did not turn on the terms of any particular 
grant awards.  Am. Pub. Health Ass'n v. Nat'l Insts. of Health, 
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145 F.4th 39, 50 (1st Cir. 2025) ("[N]either the plaintiffs' claims 
nor the court's orders depend on the terms or conditions of any 
contract.").  Instead, the plaintiffs in that case, like the 
plaintiffs here, argued that the challenged grant terminations 
violated the APA and other various constitutional guarantees.  Id. 
at 43.  That the States' claims do not focus on specific, 
individual grants thus does not cure the likely problem with the 
District Court's remedy for those claims.  See Nat'l Insts. of 
Health, 145 S. Ct. at 2658 (explaining that the APA does not grant 
district courts "jurisdiction to adjudicate claims based on . . . 
grants or to order relief designed to enforce any obligation to 
pay money pursuant to those grants" (emphasis added) (citation 
modified)).  We therefore vacate the preliminary injunction to the 
extent 
that 
it 
requires 
the 
Agency 
Defendants 
to 
make 
"disbursements to the States on awarded grants" and "executed 
contracts."12   
 
12 The same portion of the preliminary injunction also uses 
the phrase "other executed financial obligations."  It is not clear 
whether that phrase encompasses only payments that the Government 
must make to the States for their claims that concern "grants" as 
National 
Institutes 
of 
Health 
v. 
American 
Public 
Health 
Association, 145 S. Ct. 2658, 2659 (2025), used the term "grant" 
in identifying the Tucker Act problem there.  It is possible that 
the phrase also encompasses the States' claims that seek payment 
for 
"executed 
financial 
obligations" 
that 
are 
materially 
distinguishable from the claims that concern "grants" that gave 
rise to the Tucker Act problem in National Institutes of Health.  
Indeed, the Government itself appears to be of the view that the 
preliminary injunction orders some payments that do not implicate 
 
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VII.  
We now turn to FEMA's appeal of the District Court's 
order granting the States' motion to enforce the preliminary 
injunction and its denial of the Agency Defendants' motion for 
reconsideration.  After addressing the parties' threshold dispute 
about whether we have jurisdiction over the appeal, we explain why 
we affirm the orders. 
A. 
As support for there being appellate jurisdiction, FEMA 
relies on 28 U.S.C. § 1292(a)(1).  That provision gives federal 
courts of appeals subject matter jurisdiction over district court 
orders "granting, continuing, modifying, refusing or dissolving 
injunctions, or refusing to dissolve or modify injunctions."  FEMA 
asserts that we have appellate jurisdiction under § 1292(a)(1) 
because the District Court's orders are "better conceived" of as 
modifying its injunction.  It appears to concede that we lack 
jurisdiction over those orders, however, if they "merely enforced 
 
the jurisdiction of the Court of Federal Claims under the Tucker 
Act for claims "based on 'any express or implied contract with the 
United States.'"  Dep't of Educ. v. California, 604 U.S. 650, 651 
(2025) (quoting 28 U.S. § 1491(a)(2)).  To the extent that the 
phrase "executed financial obligations" refers to obligations 
pursuant to instruments akin to the "grants" at issue in National 
Institutes of Health, however, we agree with the Government that 
it must be vacated for the reasons above.  We leave any questions 
about the scope of this portion of the preliminary injunction to 
the District Court in the first instance.  
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[the] Preliminary Injunction."  (Alteration in original.)  For 
their part, the States assert that we lack jurisdiction over these 
orders because they "merely enforced the preliminary injunction."  
See Hatten-Gonzales v. Hyde, 579 F.3d 1159, 1170 (10th Cir. 2009) 
(explaining that appellate courts lack § 1292(a)(1) jurisdiction 
over an order that "enforce[s]" or "clarifie[s]," but does not 
"modify," a preliminary injunction); Arlington Indus., Inc. v. 
Bridgeport Fittings, Inc., 759 F.3d 1333, 1340 (Fed. Cir. 2014) 
("A contempt order interpreting or enforcing an injunction is 
generally not appealable until final judgment." (citation 
modified)).   
Whether these 
orders are properly understood as 
"modifying" (rather than simply enforcing) the District Court's 
preliminary injunction is not perfectly clear.  But we can bypass 
the question because, even assuming that we do have appellate 
jurisdiction over them, FEMA's challenge to them is meritless.  
See Federated Mut. Ins. Co. v. Peterson's Oil Serv., Inc., 155 
F.4th 1, 6 (1st Cir. 2025) ("When a case poses a question of 
statutory, not Article III, jurisdiction and when the decision on 
the merits will favor the party challenging the court's 
jurisdiction, we may sidestep the jurisdictional determination 
altogether and resolve the case by asserting hypothetical 
jurisdiction." (citation modified)); Akebia Therapeutics, Inc. v. 
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Azar, 976 F.3d 86, 91-92 (1st Cir. 2020) (relying on hypothetical 
statutory jurisdiction in challenge to preliminary injunction). 
B.  
FEMA argues that, under Department of Education, 604 
U.S. at 651, the District Court "lacked jurisdiction" to enter one 
portion of the order granting the States' motion to enforce the 
preliminary injunction.  Contrary to FEMA's theory, however, the 
District Court, by granting the States' motion to enforce the 
preliminary injunction, did not in that portion of the order 
impermissibly "order the payment of money under the APA."  Id.  In 
fact, that portion of the order did not require FEMA to pay any 
money at all.   
After concluding that FEMA's "manual review process" was 
"essentially an adoption of a funding review scheme" enjoined by 
the preliminary injunction, the District Court ordered FEMA to 
"immediately cease" that manual review process.  It also ordered 
FEMA to "comply with the plain text of the preliminary injunction 
order not to pause or otherwise impede the disbursement of 
appropriated federal funds to the States based on funding freezes 
dictated, described, or implied by Executive Orders issued by the 
President before the recission of the OMB [Memorandum]."  The 
District Court then went on to order FEMA to give notice of the 
preliminary injunction and motion-to-enforce order "to FEMA's 
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leadership and all FEMA staff who administer the[] FEMA grants and 
other federal financial assistance" and to "file notice . . . 
within 10 days, evidencing its payment to the States of each of 
the challenged payments this Order effected."   
The sole portion of the motion-to-enforce order that the 
Government identifies as creating a problem based on the Tucker 
Act is the portion that orders FEMA to "comply with the plain text 
of the preliminary injunction order not to pause or otherwise 
impede the disbursement of appropriated federal funds to the States 
based on funding freezes dictated, described, or implied by 
Executive Orders issued by the President before the recission of 
the OMB [Memorandum]."  As we explained in connection with our 
discussion of the Government's Tucker Act-based challenge to the 
preliminary injunction, however, "[i]f a district court decides 
that agency guidance violates the APA, it may vacate the guidance, 
preventing the agency from using it going forward."  Nat'l Insts. 
of Health, 145 S. Ct. at 2662 n.1 (Barrett, J., concurring).  Thus, 
an order prohibiting implementation of agency guidance does not 
create a problem based on the Tucker Act simply because the 
guidance "discusses internal policies related to grants."  Id. at 
2661; see also Dep't of Educ., 604 U.S. at 651 ("A district court's 
jurisdiction is not barred by the possibility that [its] order 
setting aside an agency's action may result in the disbursement of 
funds." (citation modified)).  
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When read in context, the portion of the order that the 
Government challenges is best understood merely to restate the 
portion of the preliminary injunction that, as we explained above, 
bars the Agency Defendants from "implementing" or "giving effect 
to" the proscribed funding freezes.  As we also explained above, 
that portion of the preliminary injunction is not itself 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)); see also Nat'l Insts. of 
Health, 145 S. Ct. at 2661 (Barrett, J., concurring) ("Even if the 
guidance and grant terminations are linked, vacating the guidance 
does not necessarily void decisions made under it . . . .").  It 
therefore follows that this portion of the motion-to-enforce order 
also is not 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., 534 U.S. at 212). 
We therefore conclude that the Government has not shown 
that the District Court abused its discretion in issuing the order 
granting the motion to enforce the preliminary injunction against 
FEMA.13  Nor do we see any abuse of discretion in the order denying 
FEMA's motion for reconsideration of that order.  
 
13 To be sure, the order does require FEMA to "file 
notice . . . evidencing its payment to the States of each of the 
challenged payments this Order effected."  But, consistent with 
 
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- 58 - 
VIII.  
The March 6, 2025 preliminary injunction is affirmed in 
part and vacated in part, and the April 4, 2025 and April 14, 2025 
orders are affirmed. 
 
 
our understanding that the only portion of the order that the 
Government identifies as giving rise to a Tucker Act problem does 
not itself direct FEMA to make any payments, FEMA does not identify 
this portion of the order as independently giving rise to such a 
problem.   
Case: 25-1236     Document: 00118417747     Page: 58      Date Filed: 03/16/2026      Entry ID: 6793669

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