COMMUNITY LEGAL SERVICES IN EAST PALO ALTO; SOCIAL JUSTICE COLLABORATIVE; AMICA CENTER FOR IMMIGRANT RIGHTS; ESTRELLA DEL PASO; FLORENCE IMMIGRANT AND REFUGEE RIGHTS PROJECT; GALVESTON-HOUSTON IMMIGRANT REPRESENTATION PROJECT; IMMIGRANT DEFENDERS LAW CENTER; NATIONAL IMMIGRANT JUSTICE CENTER; NORTHWEST IMMIGRANT RIGHTS PROJECT; ROCKY MOUNTAIN IMMIGRANT ADVOCACY NETWORK; VERMONT ASYLUM ASSISTANCE PROJECT v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF THE INTERIOR; OFFICE OF REFUGEE RESETTLEMENT
No. 25-2808
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MAY 14 2025
D.C. No. 3:25-cv-02847-AMO
Araceli Martinez-Olguin, District Judge, Presiding
Plaintiffs - Appellees,
v.
Defendants - Appellants.
Aрpeal from the United States District Court for the Northern District of California
ORDER
Order by Judge Koh
Dissent by Judge Callahan
KOH, Circuit Judge:
To protect unaccompanied children in immigration proceedings from the risks of “mistreatment, exploitation, and trafficking,” the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA“),
When deciding a motion for a stay pending appeal, the court considers “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The first two factors . . . are the most critical,” and the court will address the last two factors only once the applicant has satisfied the first two factors. Id. at 434-35. “The party requesting a stay bears the burden of showing that the circumstances justify” issuance of the stay. Id. at 433-34.
We conclude the Government has shown neither a likelihоod of success on the merits nor irreparable injury absent a stay and accordingly deny the
I.
The Government offers two reasons why it believes it is likely to succeed on the merits. First, the Government argues the Tucker Act,
A.
The APA “embodies [a] basic presumption of judicial review to one ‘suffering legal wrong because of agency action.‘” Abbott Lab‘ys v. Gardner, 387 U.S. 136, 140-41 (1967) (quoting
First, contrary to the Government‘s argument, plaintiffs’ APA claims are based on the Government‘s statutory and regulatory violations, not any government contract. In fact, no contract exists between plaintiffs аnd the Government. Instead, the Government has entered into a nationwide agreement with an organization called Acacia, who in turn subcontracts with legal service providers such as plaintiffs.
“[T]he Tucker Act . . . ‘impliedly forbid[s]’ an APA action seeking injunctive and declaratory relief only if that action is a ‘disguised’ breach-of-contract claim.” United Aeronautical Corp. v. U.S. Air Force, 80 F.4th 1017, 1026 (9th Cir. 2023) (quoting Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982)). In making this determination, we “look[] to (1) ‘the source of the rights upon which the plaintiff bases its claims’ and (2) ‘the type оf relief sought (or appropriate).‘” Id. (quoting Doe v. Tenet, 329 F.3d 1135, 1141 (9th Cir. 2003)).
Here, plaintiffs seek to enforce compliance with statutes and regulations, not any government contract. The TVPRA provides that the Government ”shall ensure, to the greatest extent practicable . . . that all unaccompanied alien children . . . have counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking.”
In evaluating the merits, the district court found plaintiffs were likely to succeed in showing a violation of both of these provisions. Congress has appropriated substantial funds specifically to carry out the TVPRA for over a
Second, as the Government concedes, subcontractors such as plaintiffs do not even have the right to sue under the Tucker Act. The Tucker Act provides the Court of Federal Claims with jurisdiction to hear claims based “upon any express or implied contract with the United States.”
The Government concedes (and indeed affirmatively argues) that the Court of Federal Claims lacks jurisdiction to hear plaintiffs’ claims because “it is ‘a hornbook rule that, under ordinary government prime contracts, subcontractors do not have standing to sue the government under the Tucker Act.‘” But the Government nonetheless argues the Tucker Act “impliedly forbids” plaintiffs’ APA claims because “subcontractors have fewer legal rights than prime contractors.” This argument lacks merit.
The Tucker Act‘s “exclusive jurisdiction” has been construed “to impliedly forbid contract claims against the Government from being brought in district court under the waiver in the APA.” Crowley Gov‘t Servs., Inc. v. Gen. Servs. Admin., 38 F.4th 1099, 1106 (D.C. Cir. 2022) (cleaned up) (quoting Perry Cap. LLC v. Mnuchin, 864 F.3d 591, 618-19 (D.C. Cir. 2017)). But “[t]here cannot be exclusivе jurisdiction under the Tucker Act if there is no jurisdiction under the
The result requested by the Government would mean that no court has jurisdiction to hear plaintiffs’ claims. Not only is this result contrary to common sense, but it also conflicts with the “strong presumption favoring judicial review of administrative action” that is embodied in the APA. Mach Mining, LLC v. E.E.O.C., 575 U.S. 480, 486 (2015) (internal quotation marks omitted); see Abbott Lab‘ys, 387 U.S. at 140-41.
The Supreme Court‘s recent decision in Department of Education v. California, 145 S. Ct. 966 (2025), does not change this conclusion. Department of Education involved a claim to enforce grant agreements that the plaintiffs had entered into directly with the government and thus “to enforce a contractual obligation to pay money.” Id. at 968 (citation omitted). The Supreme Court held that this claim fell within the Tuckеr Act‘s grant of exclusive jurisdiction and accordingly suggested that the suit must be brought in the Court of Federal Claims.
Accordingly, the Government has not shown a likelihood of success on its Tucker Act argument.
B.
The APA does not apply where “agency action is committed to agency discretion by law.”
The Government argues that the decision to cancel the program is committed to agency discretion by law. Its argument is based entirely upon the Supreme Court‘s decision in Lincoln v. Vigil, 508 U.S. 182 (1993). In that case, the Indian Health Service (the “Service“) was provided with a single lump-sum appropriation that covered all of the agency‘s activities. Id. at 185. The Service was authorized, but not required, to “‘expend such moneys as Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians,’ for the ‘relief of distress and conservation of health,‘” including on “Indian mental-health care.” Id. at 184 (quoting
The Supreme Court held that the Service‘s “allocation of funds from a lump-sum appropriation is [a type of] administrative decision traditionally regarded as
The rule announced in Lincoln has no application where, as here, the agency fails to carry out a program that is required by statute. Lincoln made clear that “an agency is not free simply to disregard statutory responsibilities” and “Congress may always circumscribe agency discretion to allocate resources by putting restrictions in the operative statutes.” Id. at 193; see also Los Coyotes Band of Cahuilla & Cupeno Indians v. Jewell, 729 F.3d 1025, 1038 (9th Cir. 2013) (noting that Lincoln applies only “absent some statutory constraint on the agency‘s discretion“). Where Congress establishes a mandatory program, in the sense that “Congress directs (rather than merely authorizes) the agency to conduct” certain activities, the rule in Lincoln has no application. U.S. Gov‘t Accountability Off., GAO-16-464SP, Principles of Federal Appropriations Law 2-37 & n.40 (4th Ed. 2016); U.S. Gov‘t Accountability Off., GAO-17-797SP, Principles of Federal
Here, the TVPRA provides that HHS ”shall ensure, to the greatest extent practicable . . ., that all unaccompanied alien children . . . have counsel to represent them in legal proceedings.”
To be sure, HHS is only required to provide counsel “to the greatest extent practicable” and the Foundational Rule similarly grants the agency some discretion in the procurement of counsel for unaccompanied children, but that in no way defeats judicial review. Whatever discretion the agency may have in evaluating what “the greatest extent practicable” may be, this phrаse certainly is not the same as “to no extent at all.” See Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm‘n, 449 F.2d 1109, 1114 (D.C. Cir. 1971) (explaining that the fact the agencies’ statutory duties were “qualified by the phrase ‘to the fullest extent possible‘” did “not provide an escape hatch for footdragging agencies” and did “not make [the statute‘s] requirements somehow ‘discretionary‘“). APA Section 701(a)(2) has “never been thought to put all exercises of discretion beyond judicial rеview.” ASSE Int‘l, Inc. v. Kerry, 803 F.3d 1059, 1071 (9th Cir. 2015). To the contrary, “the APA itself commits final agency action to [judicial] review for ‘abuse of discretion.‘” Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 720 (9th Cir. 2011) (quoting
Accordingly, the Government has not shown a likelihood of success on this argument either.
II.
An applicant for a stay pending appeal must show that a stay is necessary to avoid likely irreparable injury to the applicant while the appeal is pending. See Nken, 556 U.S. at 434. “[S]imply showing some possibility of irreparable injury” is insufficient. Id. (internal quotation marks omitted). Rather, “[t]he minimum threshold showing for a stay pending appeal requires that irreparable injury is likely to occur during the period before the appeal is likely to be decided.” Al Otro Lado v. Wolf, 952 F.3d 999, 1007 (9th Cir. 2020) (citing Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir. 2011)).
The Government has not met its irreparable injury burden. Despite waiting nearly a week to file this emergency motion to stay the preliminary injunction, the
First, the Government has made no showing that dispersing congressionally appropriаted funds for statutorily mandated purposes would cause irreparable harm in this case. Since 2012, and as recently as March 15, 2025, Congress has consistently appropriated funds to ensure compliance with the TVPRA‘s statutory mandate. See, e.g., Full-Year Continuing Appropriations and Extensions Act, 2025, Pub. L. No. 119-4, Div. A Tit. I Sec. 1101(8), 139 Stat. 9, 11 (2025); Further Consolidated Appropriations Act, 2024, Pub. L. No. 118-47, Div. D Tit. I, 138 Stat. 460, 664-665 (2024); Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, Div. F, Tit. II, 125 Stat. 786, 1077 (2011); S. Rep. 118-84, at 169. These funds are statutorily earmarkеd to carryout the TVPRA. Pursuant to the TVPRA, HHS “shall ensure, to the greatest extent practical . . ., that all unaccompanied alien children . . have counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking.”
The Supreme Court‘s decision in Department of Education is not to the contrary. In assessing the risks of injury to the government there, the Supreme Court relied upon a declaration from a government official asserting the difficulties inherent in recovering disbursed funds under the specific grant agreements in that case. See Department of Education, 145 S. Ct. at 969 (citing App. To Application To Vacate Order 15a, 17a.). No such evidence has been presented here. To thе contrary, the Government‘s motion fails to cite any evidence at all. Absent any showing from the Government, we cannot conclude that irreparable injury “is the more probable or likely outcome” here. Al Otro Lado, 952 F.3d at 1007 (quoting Leiva-Perez, 640 F.3d at 968).
Second, we reject the notion that the injunction‘s effect on the “separation of powers” qualifies as irreparable harm at the stay stage. See Washington v. Trump, 847 F.3d 1151, 1168 (9th Cir. 2017) (“To the extent that the Government claims that it has suffered an institutional injury by erosion of the sеparation of powers, that injury is not ‘irreparable.’ It may yet pursue and vindicate its interests in the full course of this litigation.“); see also E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 778 (9th Cir. 2018) (finding a separation of powers argument inadequate to demonstrate irreparable harm). In denying a motion to stay in another case, we concluded that the government had not established irreparable harm because “if we were to adopt the government‘s assertion that the irreparable hаrm standard is satisfied by the fact of executive action alone, no act of the executive branch asserted to be inconsistent with a legislative enactment could be the subject of a preliminary injunction. That cannot be so.” Doe #1 v. Trump, 957 F.3d 1050, 1059 (9th Cir. 2020). The Government does not acknowledge this line of precedent, much less attempt to distinguish it.
III.
For the reasons set forth above, we deny the Government‘s request for a stay pending appeal.
CALLAHAN, Circuit Judge, dissenting:
For the reasons provided in the dissent from rehearing en banc that I joined in the prior appeal in this case, I respectfully dissent. See Cmty. Legal Servs. in E. Palo Alto v. United States Dep‘t of Health & Hum. Servs., No. 25-2358, -- F.4th --, ----, 2025 WL 1203167, at *3-4 (9th Cir. Apr. 25, 2025) (Bumatay, J., and VanDyke, J., dissenting from the denial of rehearing en banc). Even if the district court had jurisdiction under the Administrative Procedure Act, the decision to terminate funding—or the decision of who to fund—is committed to agency discretion by law under