United States Court of Appeals For the First Circuit No. 25-1495
SOMERVILLE PUBLIC SCHOOLS; EASTHAMPTON PUBLIC SCHOOLS; AMERICAN FEDERATION OF TEACHERS; AMERICAN FEDERATION OF TEACHERS MASSACHUSETTS; AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 93; AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS; SERVICE EMPLOYEES INTERNATIONAL UNION,
Plaintiffs, Appellees,
v.
LINDA MARIE MCMAHON, in her official capacity as Secretary of the U.S. Department of Education; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF EDUCATION,
Defendants, Appellants.
No. 25-1500
STATE OF NEW YORK; COMMONWEALTH OF MASSACHUSETTS; STATE OF HAWAII; STATE OF CALIFORNIA; STATE OF ARIZONA; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; STATE OF ILLINOIS; STATE OF MAINE; STATE OF MARYLAND; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF OREGON; STATE OF RHODE ISLAND; STATE OF WASHINGTON; STATE OF WISCONSIN; STATE OF VERMONT; DANA NESSEL, Attorney General of Michigan; DISTRICT OF COLUMBIA,
LINDA MARIE MCMAHON, in her official capacity as Secretary of the U.S. Department of Education; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF EDUCATION,
Defendants, Appellants. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Myong J. Joun, U.S. District Judge]
Before
Barron, Chief Judge, Kayatta and Rikelman, Circuit Judges.
Steven A. Myers, Attorney, Appellate Staff, Civil Division, Yaakov M. Roth, Acting Assistant Attorney General, Leah B. Foley, U.S. Attorney, Eric D. McArthur, Deputy Assistant Attorney General, Mark R. Freeman and Melissa N. Patterson, Attorneys, Appellate Staff, Civil Division, for appellants. Andrea Joy Campbell, Attorney General of Massachusetts, Katherine Dirks, Chief State Trial Counsel, Yael Shavit, Chief, Consumer Protection Division, Anna Lumelsky, Deputy State Solicitor, Elizabeth Carnes Flynn, Nathaniel Hyman, Arjun Jaikumar, Assistant Attorneys General, Letitia James, Attorney General of New York, Barbara D. Underwood, Solicitor General, Ester Murdukhayeva, Deputy Solicitor General, Matthew W. Grieco, Senior Assistant Solicitor General, Anne E. Lopez, Attorney General of Hawai'i, David D. Day, Special Assistant to the Attorney General, Kaliko'onālani D. Fernandes, Solicitor General, Ewan C. Rayner, Caitlyn B. Carpenter, Deputy Solicitors General, Rob Bonta, Attorney General of California, Lucia J. Choi, Deputy Attorney General, Michael L. Newman, Senior Assistant Attorney General, Srividya Panchalam, James E. Stanley, Supervising Deputy Attorneys General, Natasha A. Reyes, Megan Rayburn, Deputy Attorneys General, Kristin K. Mayes, Attorney General of Arizona, Clinten N. Garrett, Senior Appellate Counsel, Kathleen Jennings, Attorney General of Delaware, Ian R. Liston, Director of Impact Litigation, Vanessa L. Kassab, Deputy Attorney General, Phil Weiser, Attorney General of Colorado, David Moskowitz, Deputy Solicitor General, Brian L. Schwalb, Attorney General of the District of Columbia, Andrew Mendrala, Assistant Attorney General, Public Advocacy Division, William Tong, Attorney General of Connecticut, Michael Skold, Solicitor General, Patrick Ring, Assistant Attorney General, Kwame Raoul, Attorney General of Illinois, Jane Elinor Notz, Solicitor General, Sarah A. Hunger, Deputy Solicitor General, Aaron M. Frey, Attorney General of Maine, Sean D. Magenis, Assistant Attorney General, Keith Ellison, Attorney General of Minnesota, Liz Kramer, Solicitor General, Joseph R. Richie, Special Counsel, Rule of Law, Anthony G. Brown, Attorney General of Maryland, Julia Doyle, Solicitor General, Keith M. Jamieson, Assistant Attorney General, Aaron D. Ford, Attorney General of Nevada, Heidi Parry Stern, Solicitor General, Dana Nessel, Attorney General of Michigan, Neil Giovanatti, Kathleen Halloran, Assistant Attorneys General, Matthew J. Platkin, Attorney General of New Jersey, Jessica L. Palmer, Andrew Simon, Deputy Attorneys General, Dan Rayfield, Attorney General of Oregon, Leigh A. Salmon, Assistant Attorney General, Nicholas W. Brown, Attorney General of Washington, Spencer W. Coates, Assistant Attorney General, Cristina Sepe, Deputy Solicitor General, Peter F. Neronha, Attorney General of Rhode Island, Kathryn T. Gradowski, Special Assistant Attorney General, Joshua L. Kaul, Attorney General of Wisconsin, Charlotte Gibson, Assistant Attorney General, Charity R. Clark, Attorney General of Vermont, and Jonathan T. Rose, Solicitor General, for state appellees. Rachel F. Homer, Elena Goldstein, Victoria S. Nugent, and Adnan Perwez, for appellees Somerville Public Schools, Easthampton Public Schools, American Federation of Teachers, American Federation of Teachers Massachusetts, American Federation of State, County, and Municipal Employees, Council 93; American Association of University Professors, and Service Employees International Union.
June 4, 2025 BARRON, Chief Judge. On March 13, 2025, two days after
the U.S. Department of Education (the "Department") announced a
reduction in force (RIF) that impacted approximately half of its
employees, twenty-one states sued the Secretary of Education (the
"Secretary"), the Department, and the President in the District of
Massachusetts. Soon after, five labor organizations and two
school districts did the same. The plaintiffs in the two cases
then moved for a preliminary injunction against the Secretary and
the Department, contending that the RIF violated the U.S.
Constitution and the Administrative Procedure Act (APA). The
plaintiffs also sought an injunction against the transfer of
certain functions out of the Department, which was announced by
the President on March 21, based on the same alleged violations.
The District Court consolidated the two cases and, after making
extensive factual findings, issued an order that granted the
motions. The appellants now move for a stay pending appeal of the
District Court's order granting the preliminary injunction. The
stay is denied.
I.
The District Court determined that the plaintiffs were
likely to succeed on the merits of their claims. It concluded
that the "mass terminations" effected by the RIF and transfer of
congressionally mandated functions to other agencies likely
violated the separation of powers and were ultra vires in
- 4 - consequence of the statute establishing the Department. See 20
U.S.C. §§ 3401-3510. The District Court also determined that the
challenged actions likely violated the APA as being contrary to
law, see 5 U.S.C. § 706(2)(A), in light of the Department's
enabling statute as well as the "numerous federal laws that require
the Department to carry out certain functions."
In addition, the District Court concluded that the
challenged actions likely violated the APA because they were
arbitrary and capricious. See id. It explained that the
announcement of the RIF as well as the decision to transfer certain
functions outside of the Department were not accompanied by "a
reasoned explanation, let alone an explanation at all," and that
nothing in the record demonstrated consideration of the
substantial harms that would result for a variety of stakeholders
including students, educational institutions, and the states.
The preliminary injunction provides as follows. First,
it enjoins the Department and Secretary "from carrying out the
[RIF] announced on March 11, 2025; from implementing [the
President's] March 20, 2025 Executive Order[, Improving Education
Outcomes by Empowering Parents, States, and Communities, Exec.
Order No. 14242, 90 Fed. Reg. 13679 (Mar. 20, 2025)]; and from
carrying out the President's March 21, 2025 Directive to transfer
management of federal student loans and special education
functions out of the Department." Second, it enjoins the same
- 5 - defendants "from implementing, giving effect to, or reinstating"
these directives "under a different name." Third, the order
provides that the Department and Secretary "shall reinstate
federal employees whose employment was terminated or otherwise
eliminated on or after January 20, 2025, as part of the RIF
announced on March 11, 2025, to restore the Department to the
status quo such that it is able to carry out its statutory
functions." Finally, it requires the Secretary and Department to
provide notice of the preliminary injunction to their "officers,
agents, servants, employees, attorneys, and anyone acting in
concert with them" and file regular status reports with the
District Court.
II.
The appellants bear the burden of satisfying the
well-established four-factor test for obtaining the extraordinary
relief that is a stay of a preliminary injunction pending appeal.
See Nken v. Holder, 556 U.S. 418, 433-34 (2009). We thus must
consider whether the appellants have made: (1) a "strong showing
that [they are] likely to succeed on the merits" in challenging
the preliminary injunction on appeal; (2) a showing that they "will
be irreparably injured absent a stay" pending the appeal's
resolution; (3) a showing that the "issuance of the stay will [not]
substantially injure the other parties interested in the
proceeding"; and (4) a showing that the stay would serve "the
- 6 - public interest." Id. at 426 (quoting Hilton v. Braunskill, 481
U.S. 770, 776 (1987)). The first and second factors are the "most
critical" ones. Id. at 434.
III.
A.
The appellants argue that the "likelihood of success"
factor favors them because the plaintiffs lack Article III
standing to pursue their claims. They do not dispute that the
plaintiffs would suffer a cognizable injury under Article III if
the Department were unable -- in consequence of actions taken to
close it down -- to perform its statutorily assigned functions.
Instead, they argue, in part, that, in contravention of Clapper v.
Amnesty International USA, 568 U.S. 398 (2013), the plaintiffs'
Article III standing rests on "speculation that, contrary to the
Secretary['s] . . . judgment, the Department's remaining 2,183
employees will be unable to perform the Department's statutory
functions."
In support of this argument, the appellants assert that
the RIF did not -- and would not -- prevent the Department from
carrying out its statutorily assigned functions, given the
remaining employees' capacity to carry them out. But the District
Court found, based on the evidence submitted by the plaintiffs,
that the RIF, which it found was "explicitly implemented to shut
- 7 - down the Department" 1 and "eliminat[ed] entire offices and
programs," has "made it effectively impossible for the Department
to carry out its statutorily mandated functions."2 And, insofar
as the appellants mean to challenge that factual finding, they
have submitted no evidence to support a contrary one.
The appellants do point to specific parts of the District
Court's opinion as support for their argument that the District
Court "principally focused on harms that could or might occur" in
finding that harms to the plaintiffs are "certainly impending"
under Clapper, 568 U.S. at 402. Insofar as the appellants mean
In finding that the RIF was implemented for the purpose of 1
closing down the Department, the District Court relied in part on the executive order issued on March 20, which provided that "the Secretary [] shall, to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education." Improving Education Outcomes by Empowering Parents, States, and Communities, 90 Fed. Reg. at 13679. The District Court also relied on the President's statements prior to the RIF that he would "like to close [the Department] immediately." Even though the RIF preceded the executive order, the appellants do not dispute the relevance of the executive order to assessing the impact or lawfulness of the RIF. We highlight some of the District Court's specific findings 2
about how the extent and nature of the RIF impacted particular functions within the Department. For example, as to the Institute for Education Sciences (IES), which is the Department's main office for education research, the District Court found that the RIF had left it "unable to fulfill [its] mandates" to collect and analyze data because one of its subdivisions had "only three employees remaining" and, at two other subdivisions, "the only remaining employees are the two Commissioners." As to the Department's Office of Federal Student Aid (FSA), the District Court found that "the entire team that supervises [the Free Application for Federal Student Aid (FAFSA)] was eliminated," such that "the administration of FAFSA applications will be disrupted."
- 8 - to suggest, in pointing to those passages, that the District Court
did not in fact find that the Department was already unable to
carry out statutorily assigned functions in consequence of the
RIF, we are not persuaded. The District Court's detailed and
extensive factual findings to the contrary throughout its opinion
show that it did so find. And insofar as the appellants mean to
suggest, in pointing to those passages, that the District Court
drew impermissibly speculative inferences in finding that the RIF
made it effectively impossible for the Department to carry out its
statutorily assigned functions, the appellants do not identify
evidence in the record to counter the District Court's contrary
findings about the impact of the RIF.
Thus, on the record before us, we see no basis on which
to conclude that the appellants have made a "strong showing" that
the District Court likely clearly erred in finding that the RIF
made it effectively impossible for the Department to carry out its
statutory obligations.3 See Me. People's All. & Nat. Res. Def.
Council v. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir. 2006)
3 The stay motion's discussion of Article III standing focuses on the District Court's RIF-based findings, but the motion also contains a footnote in the merits section that states without elaboration that "[the] plaintiffs have identified no basis to conclude that any transfer of the Department's handling of student loans or special education is imminent." As the District Court noted, however, the plaintiffs introduced evidence of the President's statement that the transfer of responsibilities would be happening "immediately." The appellants identify no evidence to suggest that was not the case.
- 9 - ("When . . . the trial court's standing determination rests on
findings of fact, we must honor those factual findings unless they
are clearly erroneous."). That being so, the appellants also have
not made a strong showing that they are likely to succeed on appeal
in challenging the District Court's determination that the
plaintiffs have Article III standing under Clapper because their
injuries are certainly impending.
The appellants' citation to OPM v. American Federation
of Government Employees, No. 24A904, 2025 U.S. LEXIS 1451 (U.S.
Apr. 8, 2025), does not convince us otherwise. There, a district
court entered a preliminary injunction that required six federal
agencies to reinstate all their probationary employees who had
been terminated in February 2025. Am. Fed'n of Gov't Emps. v.
OPM, No. C 25-01780, 2025 WL 820782, at *1 (N.D. Cal. Mar. 14,
2025). The Supreme Court of the United States then stayed that
ruling on the ground that, "under established law," the allegations
of the nonprofit plaintiffs "are presently insufficient to support
the organizations' standing," and cited Clapper, 568 U.S. 398, for
that proposition. OPM, 2025 U.S. LEXIS 1451, at *1.
The district court in American Federation of Government
Employees did conclude that "the unlawfully directed terminations
disable[d] the federal agency services on which [the plaintiffs]
or their members depend." 2025 WL 820782, at *7. But, unlike the
plaintiffs in that case, the plaintiffs here are not challenging
- 10 - an action to terminate the employment of only the newest and most
inexperienced employees at an agency. Moreover, the termination
of probationary employees at issue in that case did not have the
effect, as the District Court found the RIF here has had, of
"eliminating entire offices and programs." Nor did American
Federation of Government Employees involve a situation in which a
district court found, as the District Court found here, that the
relevant defendants were "using a large-scale RIF" to "dismantle
[an agency] -- and effectively close it." So, even if the Supreme
Court's grant of the stay in American Federation of Government
Employees rested on a determination that a strong showing had been
made that the district court in that case likely clearly erred in
finding that the challenged terminations had the effect of
disabling the relevant agencies from performing their statutory
functions, it does not follow that the appellants here have made
a strong showing that they are likely to succeed in demonstrating
that the District Court erred in determining that the challenged
RIF causes the plaintiffs injuries that are imminent under Clapper.
See Dep't of Com. v. New York, 588 U.S. 752, 785 (2019) ("Our
review is deferential, but we 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))).
Our reasons for rejecting the Clapper-based arguments
that the appellants advance as to the "likelihood of success"
- 11 - factor also require us to reject the other Article III-based
argument that they advance as to that factor. In that argument,
the appellants contend that they are likely to succeed in showing
that the plaintiffs' bid for Article III standing impermissibly
depends on an "abstract and generalized" interest in "vindicating
the separation of powers" or a "programmatic injury" that turns
federal courts into "continuing monitors" of the soundness of
administration. But, as we have just explained, the appellants
have not made a strong showing that the District Court likely
clearly erred in finding, consistent with Clapper, that the
plaintiffs face imminent injury from the challenged RIF precisely
because that action has made it impossible for the Department to
carry out statutorily assigned functions on which the plaintiffs
directly rely. That being so, we do not see how the appellants
have made a strong showing that their appeal likely will reveal
that the plaintiffs' imminent injuries are properly characterized
as merely "abstract and generalized" or "programmatic" rather than
cognizable.
The appellants separately seek to satisfy the
"likelihood of success" factor based on a non-Article-III-based
jurisdictional ground. They argue that the District Court was
barred from considering the plaintiffs' constitutional and APA
claims challenging what the appellants call "the Department's
personnel decisions" because the Civil Service Reform Act (CSRA)
- 12 - provides "an exclusive procedure for challenging federal personnel
decisions." Berrios v. Dep't of the Army, 884 F.2d 28, 31 (1st
Cir. 1989).
The CSRA cases that the appellants cite do not hold,
however, that when, as the District Court found here, "mass
terminations [a]re explicitly implemented to shut down [an
agency]," federal courts lack the power to hear non-CSRA claims
brought by parties who will be imminently injured by the agency's
effective inability to provide them with the services to which
they are entitled.4 See Thunder Basin Coal Co. v. Reich, 510 U.S.
200, 212-15 (1994) (considering "whether petitioner's claims are
of the type Congress intended to be reviewed within this statutory
structure"). We do appreciate the appellants' concern that the
CSRA may not be bypassed by the mere recharacterization of a
challenge to a termination of employment. Still, we are loath at
this juncture of the proceedings to attribute to Congress the
intention in enacting the CSRA that the appellants appear to
attribute to it. The appellants appear to be of the view that
Congress intended to bar every challenge to an unlawful effort by
the Executive to shut down a statutorily created agency by
4United States v. Fausto, 484 U.S. 439, 441, 448 (1988); Rodriguez v. United States, 852 F.3d 67, 74, 84 (1st Cir. 2017); González v. Vélez, 864 F.3d 45, 48 (1st Cir. 2017); and Berrios, 884 F.2d at 31, all involved suits brought by discharged federal employees.
- 13 - summarily firing its employees en masse -- including, on the
appellants' seeming view, even by terminating the employment of
every single one of the agency's employees -- except for those
specific challenges that the terminated employees themselves may
choose to bring. Cf. Axon Enter., Inc. v. FTC, 598 U.S. 175, 189
(2023) (noting that it would be "surprising" if claims raising
questions about an agency's "structure or very existence" could
not be heard in district court).
The appellants do invoke Block v. Community Nutrition
Institute, 467 U.S. 340 (1984), as support for their position
regarding the CSRA. But Block held that a statute that permitted
dairy handlers -- but not consumers -- to obtain review of "milk
market orders" reflected Congress's intent to foreclose the
ability of consumers to obtain judicial review of such orders.
Id. at 341-42. It did not hold, as the appellants contend, that
a comprehensive statutory scheme authorizing review of an agency
action by one category of plaintiffs always forecloses claims by
other plaintiffs regardless of the nature of those claims. Thus,
Block does not provide us with a reason to attribute to Congress
the seemingly self-defeating -- and therefore "surprising," Axon
Enter., Inc., 598 U.S. at 189 -- intention in enacting the CSRA
that the appellants appear to assert that we must attribute to it.
Finally, the appellants rely on an order in which a
divided panel of the Fourth Circuit granted the request to stay a
- 14 - preliminary injunction that required the government to reinstate
terminated employees. See Maryland v. USDA, Nos. 25-1248,
25-1338, 2025 WL 1073657 (4th Cir. Apr. 9, 2025). The summary
order in that case does not make clear, however, whether the
jurisdictional ground for granting the stay was based on the
contentions that the government made about the CSRA or those that
it made about Article III. Id. at *1. In addition, that case,
like American Federation of Government Employees, concerned the
termination of only probationary employees. Id. Thus, unlike
this case, there was no allegation or finding by the district court
in that case that mass terminations of employees at all levels of
an agency were being used to shut it down.
B.
The appellants also take aim at the District Court's
merits determinations in contending that they can meet their burden
as to the "likelihood of success" factor. They do not dispute,
however, that, to meet that burden, they must show that both the
District Court's constitutional ruling and its APA ruling are
likely not to hold up. So, we may bypass the appellants'
contentions about the District Court's constitutional ruling
because we conclude that the appellants have not met their "strong
showing" burden as to the District Court's APA ruling.
The appellants assert that "[i]t violates neither the
Constitution nor any other law for the government to endeavor to
- 15 - operate as efficiently as possible or for politically accountable
officials to make and implement their own judgments about staffing
levels needed to carry out any statutory mandates." They may mean
by that assertion to contest the District Court's determination
that the RIF and transfer of functions violated the APA. But if
so, that contention does not itself constitute a "strong showing"
that the District Court's APA ruling is likely wrong.
Notably, in making that assertion, the appellants do not
even attempt to engage with the District Court's record-based
findings about the extent of the RIF or the intent behind both it
and the transfer of functions to shut down the Department. Nor
do the appellants in making that assertion acknowledge, let alone
meaningfully dispute, the District Court's record-based findings
about the disabling impact of those actions on the Department's
ability to carry out statutorily assigned functions. Rather, the
assertion merely favorably characterizes the actions found to have
been contrary to law and arbitrary and capricious as
run-of-the-mill personnel decisions.
The appellants separately assert that the plaintiffs "do
not challenge reviewable agency action" under the APA. That
contention is premised, however, on the contention that the
appellants are likely to succeed in showing that the RIF is
reviewable only through the CSRA. This contention thus fails for
the same reasons as does their contention regarding whether the
- 16 - CSRA imposes a jurisdictional bar to the APA claims concerning the
RIF.
The appellants do invoke Carter v. U.S. Department of
Education, 2025 WL 1453562 (D.D.C. May 21, 2025), in pressing their
challenge in their stay motion to the District Court's APA ruling.
In that case, a district court rejected a challenge to the same
RIF at issue in this case insofar as the RIF impacted the
Department's Office of Civil Rights (OCR). Id. at *1.
Carter involved a situation, however, in which the
district court found that the "plaintiffs ha[d] not offered
sufficient evidence demonstrating that OCR [failed] to perform its
statutory and regulatory duties," id. at *6, such that their
challenge was really to the Office's "general operations and the
speed at which OCR [would] be able to process civil rights
complaints in the future," id. at *9. Thus, we do not understand
the district court in that case to have held that a reduction in
force -- in its nature -- is not a discrete agency action subject
to review under the APA, such that the APA's "agency action"
requirement stands as an independent bar to an APA challenge to a
specific reduction in force even when the CSRA does not stand as
a bar to it.
By contrast, the District Court found here that "the
massive reduction in staff has made it effectively impossible for
the Department to carry out its statutorily mandated functions."
- 17 - And the appellants fail to explain why a reduction in force that
effects mass terminations and is implemented to effectively shut
down a cabinet department fails to constitute a "discrete" agency
action under the cases that they cite. See Norton v. S. Utah
Wilderness All., 542 U.S. 55, 62 (2004); see also Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 899 (1990); Fund for Animals, Inc.
v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 20 (D.C. Cir. 2006).
The appellants instead just assert that such a reduction in force
is not a "discrete" agency action. Thus, we cannot say that the
appellants have made a strong showing that the plaintiffs here
challenge "flaws in the entire 'program'" and request "wholesale
correction under the APA," Carter, 2025 WL 1453562, at *9 (quoting
Lujan, 497 U.S. at 892-93), which Lujan and Norton would bar them
from doing, see id. at *10-11.
The appellants separately assert that, even if the RIF
is an agency action, it is the kind of agency action that is
"committed to agency discretion by law," and so not subject to
judicial review under the APA. 5 U.S.C. § 701(a)(2). But, in
support of this assertion, the appellants cite only to Sampson v.
Murray, 415 U.S. 61, 83-84 (1974), which did not concern
§ 701(a)(2) and explicitly held that a district court could issue
injunctive relief in cases where a plaintiff challenges an agency's
decision regarding their employment, id. at 80, 83-84.
- 18 - C.
The final set of merits-based grounds for satisfying the
"likelihood of success" factor that the appellants advance
pertains to the remedy. The appellants first contend that "the
district court lacked authority to order reinstatement of
terminated employees to active status" because
"[r]einstatement . . . [was] not a remedy that was traditionally
available at equity." See Grupo Mexicano de Desarrollo S.A. v.
All. Bond Fund, Inc., 527 U.S. 308, 318-19 (1999).
The appellants appear to be making this contention for
the first time in their stay motion to us, notwithstanding our
settled practice not to address previously unraised arguments
absent "the most extraordinary circumstances." Teamsters,
Chauffeurs, Warehousemen & Helpers Union, Loc. No. 59 v. Superline
Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992). In any event, the
appellants once more cite only to Sampson as support. See 415
U.S. at 83. But Sampson described the relevant historical
practice as the "traditional unwillingness of courts of equity to
enforce contracts for personal service either at the behest of the
employer or of the employee." Id. (citing 5A Corbin on Contracts
§ 1204 (1964)). We thus do not understand Sampson to have spoken
to the situation at hand, which concerns whether a court of equity
would historically have been deprived of authority to remedy the
effective disabling of a cabinet department of its statutorily
- 19 - assigned functions, just because that disabling was effectuated
through the mass termination of the department's employees rather
than through, say, an order for the employees not to carry out
their duties.
The appellants appear at times separately to contend
that the District Court's injunction is unnecessarily overbroad,
even to prevent the "unilateral[] clos[ure] [of] the Department."
Insofar as the appellants contend that this is so because the
preliminary injunction forces them to adhere to "the prior
administration's employee count," we disagree with this
understanding of the injunction. The injunctive relief that the
District Court ordered pertains, in relevant part, only to those
employees who were "terminated . . . as part of the [RIF] announced
on March 11, 2025" and applies only insofar as it is necessary "to
restore the Department to the status quo such that it is able to
carry out its statutory functions" (emphasis added), and not for
the purpose of ensuring a particular level of staffing as adopted
by a prior administration.
If the appellants instead mean that the injunction is
overbroad because the reinstatement of certain employees is not
necessary to prevent the effective disabling of the Department to
carry out its statutorily assigned functions, they do not explain
why. Nor do they contest the District Court's evidence-based
conclusion "that the Department will not be able to carry out its
- 20 - statutory functions -- and in some cases, is already unable to do
so" with the RIF in place.
IV.
Turning to the remaining Nken factors, the appellants
contend that the District Court's order imposes irreparable harm
because it "usurp[s]" the Executive's Article II authority to
manage the Department according to its own judgment. They cite
no authority, however, to support the contention that the Executive
Branch suffers irreparable harm by being required to carry out
Congress's duly enacted statutes. See New York v. Trump, 133
F.4th 51, 72 (1st Cir. 2025). That omission is concerning, given
that it is the government's inability to "effectuat[e] statutes
enacted by representatives of [the] people" that we have previously
held gives rise to irreparable harm. Int'l Ass'n of Machinists
Loc. Lodge 207 v. Raimondo, 18 F.4th 38, 47 (1st Cir. 2021)
(quoting Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts,
C.J., in chambers)).
We also conclude that there is no force to the
appellants' assertion that the preliminary injunction causes
irreparable injury by "undermining implementation of an important
presidential policy." The appellants do not at any point in their
stay motion specify what that "policy" is. The District Court,
however, identified the "policy" as the appellants' closure of the
Department. Yet, we do not understand the appellants to mean to
- 21 - argue that they would be irreparably harmed by being barred from
implementing that policy, as they concede that they may not
lawfully carry out such a policy.
The appellants assert that the injunction "requir[es]
the government to continue employing individuals whose services it
no longer requires" and "forc[es] adherence to a prior
administration's judgment about how, and with how many employees,
the Department should function." But, for the reason we have
already explained, we do not understand the injunction to impose
any requirement that the appellants adhere per se to the prior
administration's staffing levels.5
All that said, we agree with the appellants that, if it
were to turn out that the government was erroneously required to
continue paying Department employees, then that injury would be
irreparable to the extent that the appellants would not be able to
recoup those expenditures. It is also the case that the District
Court did not impose bond. So, on this basis, we conclude that
5 The appellants do also make a passing contention that "[e]ndeavoring to comply with th[e] injunction . . . on the ordered timeframe" itself imposes an "extraordinary burden[]" warranting immediate relief. But the injunction itself does not impose any specific timeline apart from the deadlines for providing notice of the injunction and status reports to the District Court. And we do not see how complying with those aspects of the injunction imposes a burden on the government, no less one that is "extraordinary." Moreover, the appellants also do not identify any timeline ordered by the injunction that they contend is unreasonably short or excessively burdensome.
- 22 - the appellants have identified an irreparable injury. See Dep't
of Educ. v. California, 145 S. Ct. 966, 968-69 (2025).
We also must consider, however, the other side of the
ledger. And we are not persuaded by the appellants' attempt to
argue that, as to the third Nken factor, "issuance of the stay"
will not "substantially injure the other parties [to this
litigation]." 556 U.S. at 434 (quoting Hilton, 481 U.S. at 776).
The appellants base this assertion in part on arguments
that mirror their arguments as to the first Nken factor for
concluding that the impact of the RIF identified by the District
Court was "speculative." Thus, just as we concluded those
arguments were not persuasive with respect to that factor, we
conclude that they are not persuasive with respect to this one.
The appellants do contend that the plaintiffs cannot
establish an injury that is irreparable because they can "recover
any wrongfully withheld funds through suit in an appropriate
forum." Dep't of Educ., 145 S. Ct. at 969. But, in Department
of Education, the Supreme Court emphasized that the plaintiffs had
"represented . . . that they ha[d] the financial wherewithal to
keep their programs running" notwithstanding the federal
government's failure to pay the funds allegedly due. Id. Here,
by contrast, the District Court found that the record sufficed to
support the plaintiffs' contention that the disabling of the
Department's statutorily assigned functions caused by the
- 23 - challenged actions would jeopardize their ability to proceed with
their programs. Moreover, Department of Education involved the
loss of funds that arguably could be "recover[ed]" at a later date,
id., whereas the District Court in this case specifically concluded
that the harms to the plaintiffs from the Department's inability
to provide its statutorily mandated services are of a kind that
could not be recompensed. Indeed, even if the plaintiffs
ultimately prevail in this case, there is no guarantee that the
Department could return to effective staffing levels on a
reasonable timeline, given that its employees (including the many
senior and experienced ones subjected to the RIF) may well have
accepted new positions in the interim.
As to the final Nken factor, the appellants appear to
rest their argument about "where the public interest lies," Nken,
556 U.S. at 434 (quoting Hilton, 481 U.S. at 776), on their
contention that the public's interests are indistinguishable from
the appellants' interests. But "there is generally no public
interest in the perpetuation of unlawful agency action." League
of Women Voters of the U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir.
2016); see also New Jersey v. Trump, 131 F.4th 27, 41 (1st Cir.
2025); Newby, 838 F.3d at 12 ("[T]here is a substantial public
interest 'in having governmental agencies abide by the federal
laws that govern their existence and operations.'" (quoting
Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994))).
- 24 - V.
In sum, the appellants have failed to make a strong
showing that they are likely to succeed in their appeal as to the
injunctive relief at issue insofar as that relief is predicated on
the plaintiffs' APA claims. They also have failed to show that
the plaintiffs would not be substantially injured by a stay of
this preliminary injunction during the pendency of this appeal.
Nor have they shown that the public's interest lies in permitting
a major federal department to be unlawfully disabled from
performing its statutorily assigned functions.
Against that backdrop, we cannot say that the mere fact
that the appellants have demonstrated some risk of irreparable
harm entitles them to a stay. See Does 1-3 v. Mills, 39 F.4th 20,
25 (1st Cir. 2022) ("A stay 'is not a matter of right, even if
irreparable injury might otherwise result to the appellant.'"
(quoting Nken, 556 U.S. at 427)). Certainly, the appellants make
no argument that this risk of harm in and of itself entitles them
to a stay, such that they need not pursue the ordinary appellate
means of overturning an adverse order. Nor are we aware of any
controlling case suggesting that this risk entitles them to such
extraordinary interim relief. Cf. Camelot Banquet Rooms, Inc. v.
U.S. Small Bus. Admin., 14 F.4th 624, 628 (7th Cir. 2021) ("The
other factors are essentially a wash, so the final result is driven
by the likelihood of success on the merits.").
- 25 - What is at stake in this case, the District Court found,
was whether a nearly half-century-old cabinet department would be
permitted to carry out its statutorily assigned functions or
prevented from doing so by a mass termination of employees aimed
at implementing the effective closure of that department. Given
the extensive findings made by the District Court and the absence
of any contrary evidence having been submitted by the appellants,
we conclude that the appellants' stay motion does not warrant our
interfering with the ordinary course of appellate adjudication in
the face of what the record indicates would be the apparent
consequences of our doing so.
The appellants' motion for a stay is denied.
- 26 -