Orr v. Trump, 151 F.4th 9

Background

Plaintiffs: twelve named transgender and non‑binary U.S. citizens (representing two certified classes) sued the President, the State Department, the Secretary of State, and the United States to enjoin a Department Passport Policy requiring passports to state the bearer’s biological sex at birth.
Prior policy allowed applicants to select M, F, or X and did not require the marker to match biological sex; Executive Order No. 14,168 directed the Secretary to implement changes so passports "accurately reflect the holder's sex."
The district court preliminarily enjoined enforcement, finding plaintiffs likely to succeed on an APA arbitrary-and-capricious claim and on an Equal Protection claim grounded in unconstitutional animus; the court made factual findings of immediate, class‑wide irreparable harms (e.g., increased risk of harassment and violence while traveling).
The government sought a stay pending appeal, arguing the Passport Policy is not reviewable under the APA because it was compelled by the President (invoking Franklin and Bradford) and asserting statutory authority; it also advanced merits defenses and institutional‑interest arguments.
The First Circuit applied the four‑factor stay test (Nken), concluded the government had not shown a strong likelihood of success on the APA or meaningfully rebutted the animus analysis, found the district court’s irreparable‑harm findings persuasive, and DENIED the stay.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Reviewability under the APA of agency action implementing a presidential directive	Agency action implementing the EO is reviewable under the APA	Policy is unreviewable because it was compelled by the President (Franklin/Bradford) or committed to Presidential discretion	First Circuit: agency action is ordinarily reviewable; govt failed to show strong likelihood that the policy is unreviewable under APA
Whether the Passport Policy is arbitrary and capricious under the APA	Policy is arbitrary and capricious and plaintiffs likely to succeed	Policy is a lawful implementation of the EO and not arbitrary	District court found plaintiffs likely to succeed; First Circuit: government did not show a strong likelihood of prevailing on appeal
Equal Protection — animus toward transgender people	Policy is motivated by unconstitutional animus and violates Equal Protection	Policy advances legitimate objectives (EO purposes, objective/biological criterion) and is not motivated by animus	First Circuit: govt failed to meaningfully engage the district court’s four‑pronged animus analysis; plaintiffs’ likelihood of success on animus claim stands
Stay factors: irreparable harm, balance of harms, public interest	Plaintiffs will suffer immediate, irreparable harms (e.g., increased risk of harassment/violence); public interest favors injunction	Executive‑branch institutional interests and administration of passports will be harmed by injunction	Court: district court’s factual findings of irreparable harm stand; balance of harms and public interest do not favor a stay; stay denied

Key Cases Cited

Nken v. Holder, 556 U.S. 418 (stay applicant bears burden; four‑factor stay test)
Franklin v. Massachusetts, 505 U.S. 788 (discusses reviewability limits for presidential action)
Bradford v. Department of Labor, 101 F.4th 707 (10th Cir. treatment of presidentially compelled agency action)
New York v. Trump, 133 F.4th 51 (agency action carrying out EO ordinarily subject to APA review)
Nebraska v. Su, 121 F.4th 1 (same—agency action implementing presidential directive is reviewable)
Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322 (D.C. Cir.) (agency rules implementing executive directives are typically reviewable)
New Jersey v. Trump, 131 F.4th 27 (waiver for failure to meaningfully develop appellate arguments)
Does 1-3 v. Mills, 39 F.4th 20 (First Circuit discussion of stay factors)
United States v. Skrmetti, 145 S. Ct. 1816 (Supreme Court decision referenced regarding a distinct sex‑discrimination claim)