No. 25-1477
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIRST CIRCUIT
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`STATE OF RHODE ISLAND, et al.,
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`Plaintiffs-Appellants,
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`v.
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`DONALD J. TRUMP, in his official capacity, et al.,
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`Defendants-Appellees.
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`On Appeal from the United States District Court
`for the District of Rhode Island
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`MOTION FOR STAY PENDING APPEAL AND
`AN ADMINISTRATIVE STAY
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`YAAKOV M. ROTH
`Acting Assistant Attorney General
`SARA MIRON BLOOM
`Acting United States Attorney
`ERIC D. M
`CARTHUR
`Deputy Assistant Attorney General
`MARK R. FREEMAN
`GERARD SINZDAK
`SIMON G. JEROME
`Attorneys, Appellate Staff
`Civil Division, Room 7209
`U.S. Department of Justice
`950 Pennsylvania Avenue NW
`Washington, DC 20530
`(202) 514-1673 
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`INTRODUCTION
`In what has become a troubling pattern, the district court entered a sweeping
`preliminary injunction interfering with internal Executive Branch operations, and did
`so based on the same legal errors underlying several similar injunctions recently stayed
`by higher courts. See, e.g., Department of Education v. California, 145 S. Ct. 966 (2025);
`Order, National Treasury Employees Union v. Vought, No. 25-5091 (D.C. Cir. Apr. 11,
`2025). Like the orders the Supreme Court and the D.C. Circuit previously stayed, the
`district court’s order here unlawfully prevents agencies from implementing the
`President’s instructions to reorganize and streamline their operations in keeping with
`the administration’s policy initiative to reform the federal bureaucracy.
`The district court’s order suffers from numerous defects, all of which arise
`from a fundamental misunderstanding of the proper scope of judicial review under
`the Administrative Procedure Act. The APA affords review of discrete agency actions
`or inactions that allegedly cause the plaintiff harm. It does not permit wholesale
`review of the way an agency carries out its statutory duties, based on a concern that
`the agency’s operational choices may adversely affect the agency’s future work. Yet
`that is precisely the sort of impermissible “programmatic” review the district court
`undertook here. Lujan v. National Wildlife Federation, 497 U.S. 871, 891 (1990).
`The district court’s erroneous conclusion that it had the authority to review the
`operations of the relevant agencies writ large and to, in effect, take judicial control of
`the way they carry out their work produced a preliminary injunction order rife with
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`legal errors. It led the district court to award broad relief far beyond what plaintiffs
`have standing to pursue. It also led the court to award specific forms of relief,
`including the reinstatement of employees and grant contracts, that the court had no
`jurisdiction to provide because Congress has channeled such claims to other forums.
`See, e.g., Department of Education, 145 S. Ct. at 968 (emphasizing that the APA’s waiver
`of sovereign immunity does not extend to orders enforcing a contractual obligation to
`pay money). And it produced a decision at odds with basic principles of APA review,
`including the requirement that parties challenge “final” agency action that aggrieves
`the plaintiffs here-and-now, not a loose amalgamation of agency activities that may
`someday impact the agencies’ ability to perform their statutory functions. Any one of
`these numerous errors provides reason to vacate the injunction.
`The remaining stay factors also favor the government. The order strips the
`agencies of their authority to manage their workforces and to make operational
`decisions to align the agencies with their new leadership in a new Presidential
`Administration. It also forces the agencies to disburse funds that may never be
`recovered and undertake the burdensome obligation of reinstating personnel the
`agencies no longer believe are needed to meet their statutory obligations. The harms
`to the government and the public interest favor a stay of the order’s palpable
`infringement on internal Executive Branch operations.
`Accordingly, the government respectfully requests that this Court stay the
`district court’s preliminary injunction pending the government’s appeal. And given
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`the order’s disruptive consequences, the government also respectfully requests that
`the Court grant an immediate administrative stay of the district court’s injunction
`while it considers the government’s stay motion. Plaintiffs oppose this motion.
`STATEMENT
`1. Three federal agencies are at issue in this case. The Institute for Museum
`and Library Services (IMLS) is charged with “ensuring the availability of museum,
`library, and information services adequate to meet the essential information,
`education, research, economic, cultural, and civic needs of the people of the United
`States.” 20 U.S.C. § 9103(c)(1). To that end, IMLS awards grants, conducts research,
`and offers policy programming. See id. §§ 9108(a), 9141, 9165, 9173. The Minority
`Business Development Agency (MBDA) promotes the growth of minority-owned
`business through similar grantmaking and research functions. See, e.g., 15 U.S.C.
`§§ 9511-26, 9541-43, 9552-53, 9561. And the Federal Conciliation and Mediation
`Service (FCMS) helps “parties to labor disputes in industries affecting commerce …
`to settle such disputes through conciliation and mediation.” 29 U.S.C. § 173(a).
`On March 14, 2025, the President issued Executive Order 14,238, which
`directed that the “non-statutory components and functions” of the aforementioned
`three agencies be eliminated and that the agencies’ “performance of their statutory
`functions and associated personnel” be reduced to “the minimum presence and
`function required by law.” Exec. Order No. 14,238, 90 Fed. Reg. 13043 (Mar. 14,
`2025). The three agencies then began implementing the Executive Order, including
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`by placing staff on administrative leave in anticipation of a reduction-in-force and
`terminating a number of grant agreements.
`2. On April 4, 2025, plaintiffs—who ar e twenty-one States—filed this suit.
`Their complaint centers on alleged “Closure Decisions” at each of the three
`agencies—that is, in plaintiffs’ telling, “a final decision … to implement the
`[Executive] Order and to gut [the agencies’] operations.” Compl. ¶ 54. Plaintiffs
`allege that, in implementing the Executive Order, the agencies violated the APA, their
`statutory obligations, and the Constitution. The same day plaintiffs filed their suit,
`they moved for a temporary restraining order, which the parties agreed to treat as a
`motion for a preliminary injunction. Dkt. 31.
`The district court granted plaintiffs’ motion for a preliminary injunction. Dkt.
`57. The court concluded that plaintiffs had standing to challenge the agencies’
`implementation of the Executive Order and reasoned that, notwithstanding plaintiffs’
`inchoate moniker of “Closure Decisions,” that label referred to final agency action
`reviewable under the APA. PI Op. 21-26. The court also held that inasmuch as the
`“Closure Decisions” carried the consequences of terminations of grants and
`personnel, the Tucker Act and the CSRA did not deprive it of jurisdiction to enjoin
`those consequences under the APA. Id. 14-21. On the merits, the district court
`concluded that plaintiffs were likely to succeed in demonstrating that the
`implementation of the Executive Order was unreasoned and contrary to
`constitutional and statutory law. Id. 26-40.
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`The injunction prohibits defendants from implementing Section 2 of the
`Executive Order and requires them to “take all necessary steps to reverse any policies,
`memoranda, directives, or actions issued before this Order that were designed or
`intended, in whole or in part, to implement, give effect to, comply with, or carry out
`the directives contained” in the Order. Dkt. 60 ¶¶ 1, 2. The injunction further
`provides that defendants must “restore all [agency] employees and personal service
`contractors, who were involuntarily placed on leave or involuntarily terminated due to
`the implementation” of the Executive Order, “to their status before March 14, 2025.”
`Id. ¶ 3. And the injunction orders defendants not to “further pause, cancel, or
`otherwise terminate IMLS or MBDA grants or contracts or fail to disburse funds to
`recipients in plaintiff States according to such grants or contracts for reasons other
`than the grantees’ or contractors’ non-compliance with applicable grant or contract
`terms.” Id. ¶ 5. Furthermore, defendants must “take immediate steps to resume the
`processing, disbursement, and payment of already-awarded funding, and to release
`awarded funds previously withheld or rendered inaccessible due to or in reliance on”
`the Executive Order, “with respect to recipients in plaintiff States.” Id. ¶ 6.
`The injunction does not preclude defendants “from taking actions that would
`improve Agency efficiency or reduce the size or scope” of the agencies “as long as (a)
`the Agency Defendant provides a reasoned explanation for such action, and (b) the
`action will not prevent the Agency Defendant from fulfilling any of [its] statutory
`obligations.” Dkt. 60 ¶ 3. Moreover, the injunction does not “preclude[] the Agency
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`Defendants from making personnel decisions that are not related to or motivated by”
`the Executive Order. Id. ¶ 4.
`3. The government moved for a stay pending appeal in the district court and
`will promptly notify this Court when the district court rules on the stay motion.  
`ARGUMENT
`A stay pending appeal is warranted. The government is likely to succeed on the
`merits and will face irreparable injury absent a stay. Moreover, the balance of the
`equities and public interest favor a stay. See Nken v. Holder, 556 U.S. 418, 426 (2009).
`I. The Government Is Likely to Succeed on Appeal
`The district court’s injunction rests on a fundamental misunderstanding of the
`nature of APA review. Judicial review under the APA is limited to review of discrete
`agency actions or inactions that cause harm to the particular plaintiff. The APA does
`not permit sweeping, programmatic review and judicial superintendence of the
`manner in which an agency conducts its work. Nor does the APA authorize courts to
`oversee an agency’s reorganization efforts to ensure that an agency does not fall short
`of its statutory responsibilities in the future.
`Yet, in concluding that it could review the agencies’ compliance with EO
`14,238 and had the authority to take action to quell its concern that the agencies might
`not meet their statutory obligations in the future, the district court engaged in
`precisely the sort of wholesale review and superintendence of agency operations that
`the APA does not allow. And that fundamentally flawed conclusion is reflected in the
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`preliminary injunction order’s numerous defects. The sweeping order grants relief far
`beyond what plaintiffs have standing to seek. It also grants relief, including the
`restoration of grants and employees, that the court lacked jurisdiction to provide
`through the APA. And it ignores basic APA principles, including the requirement
`that plaintiffs challenge final agency action that has already occurred and is harming
`plaintiffs, not an amalgam of agency activities that might one day have consequences
`for the agencies’ work.
`A. Plaintiffs Lack Standing
`In allowing plaintiffs to bring their broad, prospective challenge to operations
`at the three agencies, the district court’s order flouts principles of standing. Federal
`courts do not sit to “exercise general legal oversight of the Legislative and Executive
`Branches,” but to redress concrete injuries to specific interests. TransUnion LLC v.
`Ramirez, 594 U.S. 413, 423-24 (2021). “This requires, among other things, that the
`plaintiff have suffered an invasion of a legally protected interest which is … concrete
`and particularized, and that the dispute is traditionally thought to be capable of
`resolution through the judicial process[.]” Raines v. Byrd,
` 521 U.S. 811, 819 (1997).
`Plaintiffs’ principal contention is that the three agencies have decided to
`“dismantle their operations and cease performance of their functions” in violation of
`federal constitutional and statutory law, including the separation of powers. Dkt. 3.
`Putting aside the absence of any credible evidence that the agencies have decided to
`shutter their operations entirely—indeed, the Executive Order in question requires
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`them only to reduce their functions to the statutory minimum—plaintiffs’ asserted
`interest in vindicating the proper operation of the Executive Branch is exactly the sort
`of abstract and generalized grievance that cannot be redressed by a federal court
`under Article III.
`First, a generalized dispute over whether an agency will perform its statutory
`duties or will have sufficient resources to do so involves no “legally and judicially
`cognizable” harm. Raines, 521 U.S. at 819. Such suits have no “ground[ing] in
`historical practice” or “close relationship to a harm that has traditionally been
`regarded as providing a basis for a lawsuit in English or American courts.” Spokeo v.
`Robins, 578 U.S. 330, 341 (2016).
`Second, plaintiffs lack a particularized interest in safeguarding the separation of
`powers, because “[a]ll citizens” share “an interest in the independence of each branch
`of Government.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220, 226-
`27 (1974). This “generalized interest … is too abstract to constitute a ‘case or
`controversy’ appropriate for judicial resolution.” Id.
`Third, such a programmatic injury is not redressable, as it would require
`“interpos[ing] the federal courts as virtually continuing monitors of the wisdom and
`soundness of … administration, contrary to the more modest role Article III
`envisions.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 346 (2006).
`And even if the plaintiffs have standing to challenge particular actions the
`agency has taken in implementing the Executive Order, the district court’s preliminary
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`injunction plainly awards relief plaintiffs lack standing to pursue. It requires the
`agencies to reverse all actions the agency has taken to implement the Executive Order
`and to reinstate all agency employees and contractors to their March 14, 2025 status,
`and is not limited to those actions or employees that involve programs or grants on
`which the States allegedly rely. Plaintiffs must possess standing “for each form of
`relief that is sought.” Town of Chseter, N.Y. v. Laroe Estates, Inc., 581 U.S. 433, 439
`(2017). The sweeping relief the district court awarded, which far exceeds the harms
`alleged by plaintiffs, is reason alone to stay it.
`B. The Agencies’ Implementation of the EO Is Not Reviewable
`Under the APA
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`The APA contemplates judicial review only of “agency action.” 5 U.S.C.
`§§ 704, 551(13). As the Supreme Court has explained, a reviewable “action” is limited
`to the set of “circumscribed, discrete agency actions” identified in the APA’s
`definition of “action.” See Norton v. Southern Utah Wilderness All. (SUWA), 542 U.S. 55,
`62 (2004); see also 5 U.S.C. § 551(13). This definition, while expansive, is “not so all-
`encompassing as to authorize [courts] to exercise judicial review [over]
` everything done by an administrative agency.” Independent Equip. Dealers Ass’n v. EPA,
`372 F.3d 420, 427 (D.C. Cir. 2004) (Roberts, J.). Importantly, the APA— reflecting
`constitutional limits on the judicial role—does not permit “general judicial review of
`[an agency’s] day-to-day operations,” National Wildlife Fed’n, 497 U.S. at 899; nor does
`it authorize agencies to oversee “the common business of managing government
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`programs,” Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 20 (D.C.
`Cir. 2006). Under these principles, agency plans, strategies, and goals fall outside the
`APA’s defined list of agency actions. Id. at 20. Even if a challenged act qualifies as an
`agency action, it is not reviewable unless it is “final,” meaning that it “mark[s] the
`‘consummation’ of the agency’s decisionmaking process,” and is an action by which
`“rights or obligations have been determined,” or from which “legal consequences will
`flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997).
`The alleged “Closure Decisions” do not constitute such final agency action. A
`challenge to the implementation of an Executive Order—i.e., a challenge to agency
`operations—is the opposite of the discrete , circumscribed agency action that is
`required for review under the APA. See Lujan v. National Wildlife Federation, 497 U.S.
`871, 891 (1990); Nat’l Veterans Legal Servs. Program v. United States Dep’t of Def., 990 F.3d
`834, 839 (4th Cir. 2021) (explaining that final agency action does not include conduct
`like “operating a program”). The agencies’ efforts to implement the Executive Order
`involve countless operational decisions, including determining which functions are
`statutorily required, which personnel are required to fulfill those functions, and how
`best to organize its operations consistent with federal law and the Executive Order.
`“Closure Decisions” is thus “simply the name by which [plaintiffs] have . . . referred
`to the continuing (and thus constantly changing) operations of the” agencies, which
`are not reviewable agency action. Lujan, 497 U.S. at 890.
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`In this respect, this case is materially dissimilar to New York v. Trump, 133 F.4th
`51, 67 (1st Cir. 2025). There, this Court rejected the defendants’ argument that a
`challenge to the “Federal Funding Freeze” did not identify final agency action
`because, in the Court’s view, there existed a defined aggregate of discrete actions in
`the form of “freezes on obligated funds.” Id. at 67. Even taking the correctness of
`that holding as given, there is nothing uniform or categorical about a decision to
`reduce agency activities to the maximum extent permitted by law. And rather than
`tether their claims to specific terminated programs, payments, or personnel on which
`they rely, plaintiffs challenge an entire course of conduct by three federal agencies.
`By extension, the “decision” to comply with an Executive Order to reduce
`agency staffing and programming is not “final” within the meaning of the APA. The
`agencies’ ongoing implementation of the Executive Order marks the initiation, not
`the consummation, of the agency’s decision-making process. Bennett, 520 U.S. at 177-
`78. And a plan to take action—even if any subsequent action will have definite
`effects for the public—does not itself create consequences for would-be plaintiffs.
`And this makes sense because attempting to review ongoing operations is a futile task.
`Directions may be changed, and operational decisions may be reversed. See, e.g., Dkt.
`63-1 ¶ 9 (explaining that the IMLS’s Grants to States program was fully reinstated
`before court’s preliminary injunction order).
`To hold that final agency action existed, the district court diverged from the
`amorphous “Closure Decision” concept and relied predominantly on plaintiffs’
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`evidence of terminations of grants and personnel, as well as (to a significantly lesser
`extent) descriptions of terminated programming. PI Op. 23-25. But, as explained
`below, this shift does not solve the problem: to the extent those actions are relevant,
`they mean that the district court lacked jurisdiction to enter a preliminary injunction.
`See infra Parts C. and D.
`C. The District Court Erred by Or dering the Restoration of Grant
`Agreements
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`The district court independently erred by ordering restoration of grant
`contracts. The “APA’s limited waiver of sovereign immunity does not extend to
`orders to enforce a contractual obligation to pay money.” Department of, 145 S. Ct. at
`967. Instead, the Tucker Act grants the Court of Federal Claims jurisdiction over
`suits based on contracts with the government. Id.
`The federal government is generally immune from suit absent an
`“unequivocally expressed” waiver of sovereign immunity. Harper v. Rettif, 46 F.4th 1, 6
`(1st Cir. 2022). Although the APA provides “a limited waiver of sovereign immunity
`for claims against the United States” seeking non-monetary relief, Crowley Gov’t Servs.,
`Inc. v. GSA, 38 F.4th 1099, 1105 (D.C. Cir. 2022), that waiver does not apply “if any
`other statute that grants consent to suit expressly or impliedly forbids the relief which
`is sought,” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S.
`209, 215 (2012).
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`When a party seeks funding that it believes the government is obligated to pay
`under a contract or grant, the proper remedy is a suit under the Tucker Act, not the
`APA. The Tucker Act provides that the “United States Court of Federal Claims shall
`have jurisdiction to render judgment upon any claim against the United States
`founded” on “any express or implied contract with the United States.” 28 U.S.C.
`§ 1491(a). As a result, “the Tucker Act impliedly forbids” the bringing of “contract
`actions” against “the government in a federal district court” under the APA. Albrecht
`v. Committee on Employee Benefits of the Federal Reserve Employee Benefits Sys., 357 F.3d 62,
`67-68 (D.C. Cir. 2004). The Tucker Act’s preclusive effect on APA review extends to
`claims founded on grants that are implemented through contracts. Boaz Housing Auth.
`v. United States, 994 F.3d 1359, 1368 (Fed. Cir. 2021). The proper recourse for
`asserted violations of those grant agreements is a “suit in the Claims Court for
`damages relating to [the] alleged breach.” Id.
`In determining whether “a particular action” is “at its essence a contract
`action” subject to the Tucker Act or instead a challenge properly brought under the
`APA, courts look to both “the source of the rights upon which the plaintiff bases its
`claims” and “the type of relief sought (or appropriate).” Megapulse, Inc. v. Lewis, 672
`F.2d 959, 968 (D.C. Cir. 1982); see also American Sci. & Eng’g, Inc. v. Califano, 571 F.2d
`58, 63 (1st Cir. 1978).
`Where, as here, a plaintiff seeks to enforce a contractual agreement with the
`federal government and obtain the payment of money, that inquiry is straightforward.
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`The source of the plaintiffs’ right to payment arises from the grant contract and an
`order requiring the government to pay the funds it allegedly owes under the contract
`constitutes specific performance, a quintessential contract remedy.
`Consistent with these principles, the Supreme Court recently stayed an order
`that enjoined the government from terminating education-related grants. Department
`of Educ., 145 S. Ct. at 968-69. Department of Education was, like this suit, a case brought
`under the APA. In granting a stay, the Supreme Court emphasized that “the APA’s
`limited waiver of immunity does not extend to orders ‘to enforce a contractual
`obligation to pay money’ along the lines of what the District Court ordered [t]here.”
`Id. at 968. The government was thus “likely to succeed in showing the District Court
`lacked jurisdiction to order the payment of money under the APA.” Id.
`Department of Education should have been the beginning and end of the district
`court’s analysis. But the court first dismissed the case as non-precedential,
`“considering that the Supreme Court issued the decision on its emergency docket.”
`PI Op. 15. Precedential or not, “[a] just legal system seeks not only to treat different
`cases differently but also to treat like cases alike.” Pepper v. United States, 562 U.S. 476,
`510 (2011) (Breyer, J., concurring in part). The district court then attempted to
`distinguish this case on the basis that “the States’ challenges are grounded on whether
`the Defendants’ actions exceeded the bounds of their statutory or constitutional
`authorities.” PI Op. 16. But exactly the same thing was true in Department of
`Education. See California v. Department of Educ., 132 F.4th 92, 97 (1st Cir. 2025) (“The
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`States’ claims are, at their core, assertions that the Department acted in violation of
`federal law—not its contracts.”). The same result, then, should obtain here.
`The district court also found it significant that plaintiffs are seeking equitable
`relief, not money damages. PI Op. 17. But that misses the point. Even if plaintiffs’
`requested relief can be characterized as “other than money damages,” 5 U.S.C. § 702,
`they nonetheless fail the separate requirement of showing they do not seek relief that
`another statute “impliedly forbids.” Id. As explained, the Tucker Act impliedly forbids
`a court from relying on the APA ’s waiver of sovereign immunity to order the
`government to specifically perform a contract. See Albrecht, 357 F.3d at 68.
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`D. The District Court Erred by Or dering the Reinstatement of the
`Agencies’ Employees and Contractors
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`The district court also lacked jurisdiction to adjudicate the States’ challenges to
`the federal agencies’ employment decisions. Congress has “established a
`comprehensive system” that provides the “exclusive means” for administrative and
`judicial review of disputes between employees and their federal employers. Elgin v.
`Department of the Treasury, 567 U.S. 1, 5, 8 (2012). The Civil Service Reform Act,
`together with the Federal Service Labor-Management Relations Statute, “creates an
`integrated scheme of administrative and judicial review, wherein the Congress
`intentionally provided—and intentionally chose not to provide—particular forums
`and procedures for particular kinds of claims.” American Fed’n of Gov’t Emps. v. Secretary
`of the Air Force, 716 F.3d 633, 636 (D.C. Cir. 2023). Congress allowed certain
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`individual federal employees who are affected by agency personnel decisions to
`challenge those decisions “by litigating their claims through the statutory scheme in
`the context of [a] concrete” dispute. See American Fed’n of Gov’t Emps. v. Trump, 929
`F.3d 748, 757 (D.C. Cir. 2019).
`The district court concluded that those statutory limitations are irrelevant
`because the States are not entitled to administrative or judicial review under the
`CSRA. PI Op. 19. That has it backwards. The “exclusion” of States “from the
`provisions establishing administrative and judicial review for personnel action” of the
`type challenged here “prevents [them] from seeking review” under other provisions.
`United States v. Fausto, 484 U.S. 439, 455 (1988) (emphasis added).
`Supreme Court precedent makes clear that when a comprehensive scheme of
`the sort at issue here permits review at the behest of some types of plaintiffs but not
`others, it implicitly precludes review by plaintiffs who are not authorized to bring
`claims. See Block v. Community Nutrition Inst., 467 U.S. 340, 346-47 (1984) (observing
`that “[i]n a complex scheme, the omission of [a provision for litigation by consumers]
`is sufficient reason to believe that Congress intended to foreclose consumer
`participation in the regulatory process”). The same principles fully apply to the
`CSRA. See Fausto, 484 U.S. at 448.
`It is no answer to say, as the district court did, that “a finding of CSRA
`preclusion would foreclose all meaningful judicial review over the States’ claims
`because they cannot bring their claims under CSRA ’s statutory scheme.” PI Op. 19.
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`If the remedial scheme Congress designed for federal personnel decisions excludes
`the States, that is a feature, not a bug. See Block, 467 U.S. at 347. What is more, the
`district court’s observation reflects not that it is necessary to evade the limits on
`review Congress established, but that the review plaintiffs should seek is at most to
`actions that directly affect them.
`E. Plaintiffs’ APA and Constituti onal Claims Fail for Additional
`Reasons
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`1. Even if the APA permitted review of plaintiffs’ claims, the district court
`fatally erred in the analytical framework it applied to them. The crux of plaintiffs’
`APA claims is that the agencies are likely to fail to perform functions they are obliged
`by statute to carry out. Such claims are thus governed by the APA’s provision
`permitting courts to “compel agency action unlawfully withheld,” 5 U.S.C. § 706(1).
`Plaintiffs cannot succeed under 5 U.S.C. § 706(1)’s mandamus-like standard, and the
`district court’s failure to apply it warrants a stay of the preliminary injunction.
`“The only agency action that can be compelled under the APA is action legally
`required.” SUWA, 542 U.S. at 63. In 5 U.S.C. § 706(1), “the APA carried forward
`the traditional practice prior to its passage, when judicial review was achieved
`through” writs like mandamus, a remedy “normally limited to enforcement of a
`specific, unequivocal command, the ordering of a precise, definite act . . . about which
`[an official] had no discretion whatever.” Id.
`Case: 25-1477 Document: 00118288488 Page: 18 Date Filed: 05/21/2025 Entry ID: 6722769
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`18
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`Analysis under Section 706(1) “starts from the premise that issuance of the writ
`[of mandamus] is an extraordinary remedy, reserved only for the most transparent 
`violations of a clear duty to act.” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir.
`2008). Reflecting the traditional limitations on mandatory injunctions issued to co-
`equal branches, “[i]n the case of agency inaction” the Court “not only must satisfy
`[itself] that there indeed exists such a duty, but that the agency has ‘unreasonably
`delayed’ the contemplated action.” Bluewater, 234 F.3d at 1315 (quoting 5 U.S.C.
`§ 706(1)). And even once there has been an “unreasonable delay” in fulfilling the
`required statutory duty, the court must evaluate “whether the agency’s delay is so
`egregious as to warrant mandamus.” Core Communications, Inc., 531 F.3d at 855.
`Rather than applying these well-established standards to plaintiffs’ request for
`preliminary relief, the district court treated plaintiffs’ claim as one challenging an
`agency action. See PI Op. 25-38. That was error because, insofar as plaintiffs
`challenge the agency’s expected failure to carry out statutory obligations, they are not
`challenging “agency action,” but rather agency inaction. See SUWA, 542 U.S. at 64.
`Thus, any relief would have to accord with the remedial principles that apply under
`Section 706(1). Yet the district court made no attempt to identify any “specific,
`unequivocal command” such that it could “order[] … a precise, definite act.” SUWA,
`542 U.S. at 63. It found no “transparent violations of a clear duty to act,” let alone
`one that has been withheld so long as to be “unreasonably delayed.” Bluewater, 23