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, ez 4/,
`Plaintiffs-Appellants,
`V.
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`DONALD J. TRUMP, in his official capacity, ¢7 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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`REPLY IN SUPPORT OF MOTION FOR STAY PENDING APPEAL
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`BRETT A. SHUMATE
`Assistant Attorney General
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`SARA MIRON BLOOM
`Acting United States Attorney
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`ERIC D. MCARTHUR
`Deputy Assistant Attorney General
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`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
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`Executive Order 14,238 lawfully directed the three federal agency defendants in
`this suit to reduce their operations to the maximum extent consistent with law, while
`ensuring that the agencies perform all statutorily required functions. Proceeding from
`the mistaken premise that the APA permits it to superintend the agencies’
`reorganization, the district court entered a preliminary injunction that suffers from
`numerous fatal flaws. As the government explained in its stay motion, the order
`grants plaintiffs relief far beyond what they have standing to pursue, grants relief the
`court lacks jurisdiction to provide, and ignores fundamental principles of APA review,
`including the requirement that a plaintiff challenge discrete, “final” agency actions, not
`an agency’s evolving plan to reorganize itself.
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`Plaintiffs offer no convincing response to these serious defects. Consistent
`with recent decisions of the Supreme Court and Fourth Circuit staying similarly
`capacious injunctions, this Court should stay the district court’s order. Department of
`Education v. California, 145 S. Ct. 966 (2025); Sustainability Inst. v. Trump, No. 25-1575,
`2025 WL 1587100 (4th Cir. June 5, 2025).
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`ARGUMENT
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`A. The Government Is Likely to Succeed on the Merits
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`1. Plaintiffs do not dispute that to obtain relief in federal court, a plaintiff must
`have a “personal stake” in the lawsuit, Raines v. Byrd, 521 U.S. 811, 819 (1997)—that is,
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`a particularized injury, caused by the allegedly unlawful action, which may be
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`redressed by favorable relief. Accord Resp. to Mot. for Stay Pending Appeal 10. It
`follows that injunctive relief beyond what might remedy a cognizable injury is outside
`a federal court’s power to award. Gil/ v. Whitford, 585 U.S. 48, 68 (2018) (“[A] remedy
`must of course be limited to the inadequacy that produced the injury in fact that the
`plaintiff has established.”).
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`Plaintiffs have proffered only two types of injury: delayed and withheld grant
`funding, and loss of agency-provided services. Resp. 10, 11. At most, then—putting
`aside the other insurmountable threshold obstacles to relief, see infra—an order
`tailored to plaintiffs’ standing theories might have directed the agencies to disburse
`funds and to provide certain services.
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`But the preliminary relief the district court awarded—which prohibits
`defendants from “implementing” a facially valid Executive Order and directs them to
`unwind all steps taken in prior compliance with that Order, Add. A2-A3, 9 1-2—
`exceeds plaintiffs’ theories of harm. The injunction, for example, requires the
`agencies to reinstate a// agency employees to their former status, not just those needed
`to carry out the agencies’ mandated functions. Indeed, the injunction’s sweeping'
`language might fairly be read to include purely internal tasks, such as analyzing which
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`agency functions are statutorily required and the number of employees required to
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`' Contrary to the assertion that the injunction “accepted all the Defendants’
`suggestions for ensuring that the injunction was narrowly drafted,” Resp. 12, the
`problematic language proposed by plaintiffs survived defendants’ objections to its
`ambiguity. See Defs.” Resp. to Pls.” Proposed Order, Dkt. No. 59.
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`staff those functions. See Exec. Order 14,238, § 2(b). But neither plaintiffs nor the
`district court explains how such an analysis would cause loss of funding or services.
`To the contrary, the only theory of standing that might justify the district court’s
`broad order—a generic interest in the constitutional operation of government, whose
`vindication requires judicial supervision of wholesale agency functions—is one the
`Supreme Court has rejected time and again. Raznes, 521 U.S. at 819; Scblesinger v.
`Reservists Comm. to Stop the War, 418 U.S. 208, 220, 226-27 (1974); DainlerChrysler Corp.
`v. Cuno, 547 U.S. 332, 346 (2000).
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`2. Defendants’ motion explained why plaintiffs’ requests for delayed and
`withheld grant funding belong in the Court of Federal Claims: because the “source of
`the rights” on which plaintitfs rely is a set of contracts—their grant agreements with
`IMLS and MBDA—and because the “type of relief sought” is specific performance,
`“a quintessential contract remedy.” Mot. for Stay Pending Appeal 13-14 (quoting
`Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982)).
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`The Supreme Court’s decision in Department of Education confirms the point.
`There, the Supreme Court followed similar logic in staying a district-court order
`enjoining the government from terminating education-related grants. 145 S. Ct. at
`968-69. Plaintiffs dismiss the import of Department of Education, saying that it “is not a
`ruling on the merits” and “did not purport to disturb well-settled law.” Resp. 12.
`Those are non-sequiturs. Merits ruling or not, the outcome reached by the Supreme
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`Court under similar circumstances demands deference from lower courts. And
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`defendants do not claim that Department of Education altered the governing legal
`framework. Rather, it applied the “well-settled” principle that that “suits based on
`‘any . . . contract with the United States™ are to be heard by the Court of Federal
`Claims. Department of Education, 145 S. Ct. at 968.
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`Plaintiffs do not dispute that they seek relief that is contractual in nature.
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`Instead, they argue that the “legal rights” they invoke ““‘exist[ed] prior to and apart
`from rights created under’ grant agreements or any other contract.” Resp. 13. Just
`last week, the Fourth Circuit rejected a materially identical argument when it stayed a
`preliminary injunction that required the payment of grant monies. Sustainability Inst.,
`2025 WL 1587100. The panel noted that, like the Department of Education plaintiffs, the
`Sustainability Institute plaintiffs disavowed the contractual nature of their claims in favor
`of an APA framing. Id. at *2. “Yet,” the Fourth Circuit reasoned, “like the grants in
`[Department of Education], the grants . . . were awarded by federal executive agencies to
`specific grantees from a generalized fund. While the appropriation statutes authorize
`the agencies to award grants, it is the operative grant agreements which entitle any
`particular Plaintiff to receive federal funds.” Sustainability Inst., 2025 WL 1587100, at
`*2. So too here. Plaintiffs have not identified any statute® or constitutional provision
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`that requires the government to fund their specsfic grants. Plaintiffs cannot then
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`plausibly demand money from the U.S. Treasury based on the statutes or the
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`> As defendants explained, Mot. 11, IMLS voluntarily and fully reinstated grants
`under the Grants to States program before the preliminary injunction.
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`Constitution. This Court should follow the Supreme Court’s and the Fourth Circuit’s
`lead and reject plaintiffs’ attempted end-run around the Tucker Act and the limits on
`a court’s jurisdiction under the APA.
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`Pivoting, plaintiffs point to their second alleged injury—a loss of agency
`programming and services—as a reason to avoid the application of the Tucker Act.
`Resp. 13-14. But the relevant analysis proceeds claim by claim. Crowley Gov’t Servs.,
`Inc. v. General Servs. Admin., 38 F.4th 1099, 1106-07 (D.C. Cir. 2022). So even if
`plaintitfs’ programming-related claims could proceed in this forum (and, as explained
`below, they cannot), their grant-related claims may not.
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`3. In addition to their claims seeking terminated or delayed grant funding,
`plaintiffs sought and obtained relief against the agency defendants’ recent and planned
`reductions in workforce size. This latter category of claims, which fundamentally
`concern agency personnel decisions, is precluded by the Civil Service Reform Act.
`Mot. 15-17.
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`Detfendants acknowledge the apparent contrary conclusion reached by a stay
`panel of this Court in Somerville Public Schools v. McMahon, Nos. 25-1495 & 25-1500,
`2025 WL 1576570, at *4 (1st Cir. June 4, 2025).> Even so, the Court should not and
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`need not follow Somerville tor two reasons. First, the Somerville panel found material
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`’ The government has applied to the Supreme Court to stay the district court’s
`injunction in Somerville and its companion case. McMahon v. New York, No. 24A1203
`(U.S. June 6, 2025).
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`that reductions in force at the Department of Education were “explicitly implemented
`to shut down an agency.” Id. (emphasis and alteration omitted). Here, in contrast,
`although the district court repeatedly used plaintiffs’ term “dismantling,” it did not
`find that the President intended to eliminate the agencies entirely. Bu# see Somerville
`Pub. Schs., 2025 WL 1576570, at *2 n.1. And, indeed, the Executive Order makes
`clear that the agencies must continue to perform all functions required by law. See
`Exec. Order 14,238, § 2(b).
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`Second, defendants respectfully disagree with the Somerville court’s apparent
`conclusion, repeated by plaintiffs (at 16-17), that honoring CSRA preclusion would
`leave plaintiffs with no remedy. See id. at *4. 1f “parties . . . will be imminently injured
`by [an] agency’s effective inability to provide them with the services to which they are
`entitled,” 7., a court may “compel agency action unlawfully withheld or unreasonably
`delayed,” 5 U.S.C. § 706(1), and leave to the agencies the appropriate manner of
`compliance. Permitting private parties to enmesh themselves in personnel decisions,
`in contrast, runs directly counter to Congress’ intent in promulgating the CSRA.
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`4. a. An APA claim may only proceed where it challenges “circumscribed,
`discrete agency actio[n].” Norton v. Southern Utah Wilderness All., 542 U.S. 55, 62 (2004)
`(SUW.A). Here, plaintiffs have challenged a “Closure Decision” at each agency—that
`is, in the district court’s telling, a “policy . .. ‘of eliminating all functions and
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`components not mandated by statute, and of dramatically reducing their remaining
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`functions’ across the board.” Add. A26. Simply to recite the district court’s label
`reveals that this “policy” is neither “circumscribed” nor “discrete.”
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`In response, Plaintiffs unconvincingly point to Somerville and New York v. Trump,
`133 F.4th 51 (1st Cir. 2025). Resp. 19. But even if a reduction-in-force or funding
`freeze of the sort at issue in those two cases may be considered a discrete agency
`action or set thereof, there are many more underlying steps here. To comply with the
`Executive Order, an agency must evaluate which functions are statutorily required,
`assess personnel, funding, and programmatic needs, and take steps to eliminate non-
`essential personnel. This is a far cry from a single reduction-in-force or across-the-
`board pause in funding. Somerville Pub. Schs., 2025 WL 1576570, at *1.
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`b. By extension, the “Closure Decisions” were not final. Mot. 11. Plaintiffs
`offer no convincing rebuttal to defendants’ argument that, by their very nature, the
`agencies’ “decisions” to comply with an Executive Order mark the beginning, not the
`consummation, of a process. Mot. 11. That failure is independently fatal, as a
`purportedly final action must meet both of Bennet?'s prongs. See Ipsen
`Biopharmacenticals, Inc. v. Azar, 943 F.3d 953, 955-56 (D.C. Cir. 2019). Instead,
`plaintiffs reiterate that they have “lost access to critical programs, grants, and
`services,” meaning that the Closure Decisions have had “legal consequences” for
`them. Resp. 20. If true, those losses stem not from a vaguely defined “Closure
`Decision,” but rather from individual decisions to terminate grants and to reduce
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`workforce size. See zd. (describing such individual decisions). Plaintiffs cannot
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`circumvent the above-described barriers to review of those individual decisions by
`instead attacking the agency’s operations on a large scale.
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`c. Atits core, plaintiffs’ suit is not about what the agencies allegedly did, but
`what they allegedly failed to do—i.e., provide grant funding and programming. Such a
`claim should have been evaluated under the APA’s stringent, mandamus-like standard
`of review under 5 U.S.C. § 706(1). Mot. 17-19. In response, Plaintiffs double down
`on their characterization of their suit as challenging action, not inaction, Resp. 21-22,
`simply confirming that their suit is an attempted end-run around § 706(1)’s limited
`avenue for relief.
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`Under § 706(1), the district’s court’s analysis does not pass muster. Buf see
`Resp. 22. Far from carefully delineating “discrete action[s]” that are “legally
`required,” SUWA, 542 U.S. at 63, the district court recited a laundry list of statutory
`provisions and concluded that defendants had likely acted “not in accordance” with
`them by undertaking undefined “Closure Decisions.” Add. A35-A43. And the relief
`the court granted proves that it overstepped: the court did not identity “specific,
`unequivocal command|s],” SUW.A, 542 U.S. at 63, but generically instructed
`defendants to cease and unwind “implementation” of an Executive Order.
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`5. In Dalton v. Specter, the Supreme Court explained that claims “simply alleging
`that the President has exceeded his statutory authority[] are not ‘constitutional’
`claims.” 511 U.S. 462, 473 (1994). That principle resolves plaintiffs’ “constitutional”
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`claims here, which are little more than a repackaging of their statutory claims.
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`Plaintiffs nevertheless try to circumvent Dalton, insisting that defendants must have
`acted in reliance on the Constitution because no statute authorized the action they
`took. Resp. 23. This attempted rhetorical move leads precisely to the outcome Dalton
`rejected, where any statutory claim could be converted to a constitutional claim
`through proper framing. That cannot be right, and plaintiffs make no effort to
`reconcile their rebuttal with Dalton’s logic. Plaintifts’ citations to Dalton and Chamber of
`Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1990), are also inapposite. Dalton
`recognized that courts must determine “whether the Constitution authorize[s|”
`executive action in cases where “no statutory authority was claimed.” 511 U.S. at 473.
`Here, in contrast, defendants have not disclaimed reliance on statutory law. And the
`cited portion of Chamber of Commerce dealt with limitations on judicial review that are
`not raised here. 74 F.3d at 1332.
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`B. The Remaining Factors Favor a Stay
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`As defendants explained and documented, the injunction visits two types of
`harm on them: it requires them to re-employ particular personnel against their will,
`creating workplace tensions and affecting agency administration, and results in the
`expenditure of likely unrecoverable funds—both through improper grant payments
`and associated staff expenditures. Mot. 19-21. The latter harm is exactly what the
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`Supreme Court found sufficient to support emergency relief in Department of Education.
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`145 S. Ct. at 969; see also Sustainability Inst., 2025 WL 1587100, at *2.
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`Plaintiffs do not engage with defendants’ workplace-related harms at all. Resp.
`24-25. Instead, they surmise that some portion of grant monies paid may be
`recoverable through “debt collection procedures.” Id. 24. Plaintiffs do not explain,
`however, why the amounts disbursed might qualify for collection, nor how the
`government might recoup the costs of collecting that debt, nor why the same facts
`made no difference to the Supreme Coutt in Department of Education. Indeed, the
`government cannot recoup those costs, and so its financial injuries (unlike any harm
`plaintiffs have pleaded from grants that are later determined to be improperly
`cancelled or withheld) are actually irremediable. Buf see Resp. 24.
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`On the other side of the ledger, plaintiffs would not be irreparably harmed if
`the injunction were stayed. Their “hundreds of pages of declarations,” Resp. 25, can
`be reduced to statements that they will not be paid grant funding (a classic remediable
`harm, Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)), and that they
`may lose access to services and programs they enjoy participating in. Even accepting
`these harms as established, they pale in comparison to the administrative disruption
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`and damage to the public fisc the preliminary injunction will continue to cause.
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`CONCLUSION
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`For the foregoing reasons, the Court should grant a stay pending appeal.
`Respecttully submitted,
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`BRETT A. SHUMATE
`Assistant Attorney General
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`SARA MIRON BLOOM
`Acting United States Attorney
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`ERIC D. MCARTHUR
`Deputy Assistant Attorney General
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`MARK R. FREEMAN
`GERARD SINZDAK
`s/ Simon G. Jerome
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`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
`simon.g.jerome@usdoj.gov
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`June 2025
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`11
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`CERTIFICATE OF COMPLIANCE
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`I hereby certify that the foregoing reply complies with the word limit of Federal
`Rule of Appellate Procedure 27(d)(2)(C) because it contains 2,558 words. The reply
`also complies with the typeface and type-style requirements of Federal Rules of
`Appellate Procedure 27(d)(1)(E) and 32(a)(5) and (6) because it was prepared using
`Word for Microsoft 365 in Garamond 14-point font, a proportionally spaced
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`typeface.
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`s/ Simon G. Jerome
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`Simon G. Jerome
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`CERTIFICATE OF SERVICE
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`I hereby certify that on June 11, 2025, I electronically filed the foregoing reply
`with the Clerk of the Court for the United States Court of Appeals for the First
`Circuit by using the appellate CM/ECF system. Participants in the case are registered
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`CM/ECEF users, and service will be accomplished by the appellate CM/ECF system.
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`s/ Simon G. Jerome
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`Simon G. Jerome
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