National Treasury Employees Union v. Russell Vought

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 16, 2025 Decided August 15, 2025

No. 25-5091

NATIONAL TREASURY EMPLOYEES UNION, ET AL.,

APPELLEES

v.

RUSSELL T. VOUGHT, IN HIS OFFICIAL CAPACITY AS ACTING

DIRECTOR OF THE CONSUMER FINANCIAL PROTECTION

BUREAU AND CONSUMER FINANCIAL PROTECTION BUREAU,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:25-cv-00381)

Eric D. McArthur, Deputy Assistant Attorney General,

U.S. Department of Justice, argued the cause for appellants.

With him on the briefs were Mark R. Freeman, Melissa N.

Patterson, Catherine Padhi, and Kevin J. Kennedy, Attorneys.

Jennifer D. Bennett argued the cause for appellees. With

her on the brief were Julie Wilson, Paras N. Shah, Allison C.

Giles, Deepak Gupta, Robert Friedman, Michael Skocpol,

Gabriel Chess, Wendy Liu, Adina H. Rosenbaum, Julie Wilson,

Paras N. Shah, and Allison C. Giles.

2

Ariel Levinson-Waldman was on the brief for amici curiae

42 Nonprofit Veterans, et al. in support of appellees.

Elizabeth B. Wydra and Brianne J. Gorod were on the

brief for amici curiae Current and Former Members of

Congress in support of appellees.

Matthew J. Platkin, Attorney General, Office of the

Attorney General for the State of New Jersey, Brian L.

Schwalb, Attorney General, Office of the Attorney General for

the District of Columbia, Caroline Van Zile, Solicitor General,

Ashwin P. Phatak, Principal Deputy Solicitor General, Letitia

James, Attorney General, Office of the Attorney General for

the State of New York, Barbara D. Underwood, Solicitor

General, Dustin J. Brockner, Assistant Solicitor General,

Kristen K. Mayes, Attorney General, Office of the Attorney

General for the State of Arizona, Philip J. Weiser, Attorney

General, Office of the Attorney General for the State of

Colorado, Kathleen Jennings, Attorney General, Office of the

Attorney General for the State of Delaware, Kwame Raoul,

Attorney General, Office of the Attorney General for the State

of Illinois, Anthony G. Brown, Attorney General, Office of the

Attorney General for the State of Maryland, Dana Nessel,

Attorney General, Office of the Attorney General for the State

of Michigan, Rob Bonta, Attorney General, Office of the

Attorney General for the State of California, William Tong,

Attorney General, Office of the Attorney General for the State

of Connecticut, Anne E. Lopez, Attorney General, Office of the

Attorney General for the State of Hawaii, Aaron M. Frey,

Attorney General, Office of the Attorney General for the State

of Maine, Andrea Joy Campbell, Attorney General, Office of

the Attorney General for the Commonwealth of Massachusetts,

Keith Ellison, Attorney General, Office of the Attorney

General for the State of Minnesota, Aaron D. Ford, Attorney

General, Office of the Attorney General for the State of

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Nevada, Jeff Jackson, Attorney General, Office of the Attorney

General for the State of North Carolina, Peter F. Neronha,

Attorney General, Office of the Attorney General for the State

of Rhode Island, Nicholas W. Brown, Attorney General, Office

of the Attorney General for the State of Washington, Raul

Torrez, Attorney General, Office of the Attorney General for

the State of New Mexico, Dan Reyfield, Attorney General,

Office of the Attorney General for the State of Oregon, Charity

R. Clark, Attorney General, Office of the Attorney General for

the State of Vermont, and Joshua L. Kaul, Attorney General,

Office of the Attorney General for the State of Wisconsin, were

on the brief for amici curiae State of New York, et al. in support

of appellees.

Harold Hongju Koh and Jed W. Clickstein were on the

brief for amici curiae Former Consumer Financial Protection

Bureau Officials in support of appellees.

Before: PILLARD, KATSAS, and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge KATSAS.

Dissenting opinion filed by Circuit Judge PILLARD.

KATSAS, Circuit Judge: To promote the President’s

deregulatory agenda, the Consumer Financial Protection

Bureau undertook a series of actions to substantially downsize

the agency. These actions included terminating employees,

cancelling contracts, declining additional funding, moving to

smaller headquarters, and requiring advance approval for

agency work. The plaintiffs in this case either represent CFPB

employees or use services provided by the agency. They sued

to stop what they describe as a decision to “shut down” the

Bureau. The district court found that agency leadership had

made such a decision and then entered a preliminary injunction

severely restricting agency actions regarding employment,

4

contracting, and facilities, among other things. We hold that

the district court lacked jurisdiction to consider the claims

predicated on loss of employment, which must proceed through

the specialized-review scheme established in the Civil Service

Reform Act. And the other plaintiffs’ claims target neither

final agency action reviewable under the Administrative

Procedure Act nor unconstitutional action reviewable in equity.

Accordingly, we vacate the preliminary injunction.

I

A

In 2010, Congress established the Consumer Financial

Protection Bureau to enforce federal laws that protect

consumers of financial products. 12 U.S.C. § 5511(a).

Congress transferred to the CFPB “the authority to administer

18 existing consumer protection statutes,” and it “vested the

Bureau with rulemaking, enforcement, and adjudicatory

authority” over those statutes. CFPB v. Cmty. Fin. Servs. Ass’n

of Am., 601 U.S. 416, 421–22 (2024). Congress authorized the

CFPB to pursue five general objectives: provide timely and

understandable information to consumers, protect consumers

from unfair practices, reduce regulatory burdens, enforce

consumer financial laws consistently, and encourage the

relevant markets to operate transparently and efficiently. 12

U.S.C. § 5511(b).

Congress gave the CFPB broad discretion regarding how

to pursue these goals. For example, the Bureau’s general grant

of rulemaking power is expressly permissive; it states that the

agency “may prescribe rules and issue orders and guidance, as

may be necessary or appropriate to enable the Bureau to

administer and carry out the purposes and objectives of the

Federal consumer financial laws, and to prevent evasions

thereof.” 12 U.S.C. § 5512(b)(1); see also id. § 5531(b) (CFPB

5

“may prescribe rules” regarding certain “unfair, deceptive, or

abusive acts or practices”). The Bureau’s enforcement

authority is also discretionary. See id. § 5562 (CFPB “may”

conduct investigations, subpoena witnesses, or demand

documents). So is its adjudicatory authority. Id. § 5563(a)

(CFPB “is authorized to conduct hearings and adjudication

proceedings”).

The CFPB is mostly free to organize its internal affairs as

it wishes. For example, it may establish “general policies …

with respect to all executive and administrative functions,” 12

U.S.C. § 5492(a), including personnel and contracting matters,

id. § 5492(a)(2), (3), (7). The Director also may “fix the

number of, and appoint and direct, all employees of the

Bureau.” Id. § 5493(a)(1)(A). And the Director has

unreviewable discretion to determine how much funding the

Bureau needs to carry out its objectives, subject only to a

statutory cap. Id. § 5497(a)(1)–(2); see id. § 5497(a)(2)(C)

(barring congressional committees from reviewing the

Director’s determination).

Congress did require the CFPB to provide some specific

services to the public. For example, the Bureau must establish

“reasonable procedures to provide a timely response to

consumers” for inquiries or complaints. 12 U.S.C. § 5534(a);

see id. § 5493(b)(3)(A) (requiring toll-free telephone number,

website, and database for consumer complaints). The agency

must prepare reports about interest rates, credit cards, and other

matters. See id. § 5493(b)(1); 15 U.S.C. §§ 1646(a)–(b),

1632(d)(3). It must help compile information about depository

institutions. 12 U.S.C. § 2809(b). And it must have a “Private

Education Loan Ombudsman” to “provide timely assistance to

borrowers of private education loans.” Id. § 5535(a).

6

B

In early 2025, the President took several steps to

implement a new deregulatory agenda. On January 20, he

imposed a cross-agency freeze on new regulatory actions. See

Regulatory Freeze Pending Review, 90 Fed. Reg. 8249 (Jan.

20, 2025). On February 26, he imposed a cost-cutting initiative

that required agency heads to scale back contracts, grants, real

estate, and other expenses. See Exec. Order No. 14,222, 90

Fed. Reg. 11095 (Feb. 26, 2025).

These initiatives brought changes to the Bureau. On

Friday, January 31, the President removed the incumbent

CFPB Director and designated Scott Bessent as the agency’s

Acting Director. On Monday, February 3, Bessent instructed

agency employees and contractors to pause most activities

while he evaluated them for “consistency with the goals of the

Administration.” J.A. 110. Bessent made clear, however, that

the pause did not apply to work “expressly approved by the

Acting Director or required by law.” Id. On February 7, the

President designated Russell Vought to replace Bessent as

Acting Director. On February 8, Vought reiterated the pause

on CFPB work, with the same exception for activities

“expressly approved by the Acting Director or required by

law.” Id. at 117. The same day, Vought concluded that

existing funds—which exceeded $700 million—were

“sufficient” for the Bureau to meet its statutory mandates for

the next fiscal quarter. Id. at 123. On February 9, CFPB

leadership decided to close the Bureau’s headquarters for a

week because of protests outside the building. Id. at 105–06,

119. Around the same time, they also decided to cancel the

lease of agency headquarters, which had remained largely

vacant since the COVID pandemic, and to move the Bureau to

smaller headquarters. Id. at 104, 106.

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On February 10, Vought issued a new directive reminding

employees of the office closure and instructing them to “not

perform any work tasks” without prior approval from Chief

Legal Officer Mark Paoletta. J.A. 101. The parties dispute

whether this directive required approval for legally mandated

activities or whether it carried forward the exception from the

February 3 and February 8 emails. In any event, Paoletta did

approve some legally required work, starting on February 10.

See id. at 286–87 (exempting “work to publish the Average

Prime Offer Rate”—a legally required task—“from the stop

work order”).1 And on March 2, Paoletta clarified that

“[e]mployees should be performing work that is required by

law and do not need to seek prior approval to do so.” Id. at

387. In the interim, though, some required work was neglected,

such as maintenance of the consumer-complaint database.

Over the same timeframe, the Bureau also addressed

contract and personnel matters. On February 11, its Chief

Financial Officer instructed component heads to identify which

contracts directly supported statutory obligations. J.A. 416–17.

Agency leadership decided to cancel all contracts in five

components and all but two contracts in a sixth, id. at 288, 407,

though it is unclear how many of those contracts actually were

1

See also, e.g., J.A. 298–300 (approving work related to the

call center, online complaint form, and a required report for

Congress); id. at 306 (approving the Office of Fair Lending’s request

to perform statutory functions); id. at 308 (directing an employee to

attend meetings and perform trainings); id. at 284 (Bureau COO

confirming that work related to the consumer complaint database and

home mortgage disclosure application should continue); id. at 285

(confirming that the COO stated the work stoppage “does not apply

to the … Consumer Resource Center”); id. at 313 (COO approving

the processing of FOIA requests); id. at 326 (COO confirming that

employees “can resume all regular work related to fulfilling statutory

obligations”).

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cancelled, see id. at 131 (plaintiffs’ declaration explaining that

contract cancellations would not take effect for at least thirty

days). On February 19, Paoletta forbade employees from

cancelling any contract “without specific authorization” from

himself or the Acting Director, id. at 654, and at least some

contracts were then reactivated, see id. at 378. As for

personnel, the Bureau terminated 85 probationary employees

and 130 term employees, including the “Student Loan

Ombudsman.” Id. at 421, 648, 650, 950–51. It planned to

implement two Reductions in Force (RIFs), which would have

terminated at least eighty percent of the Bureau’s remaining

workforce. See id. at 649, 953, 1052. It considered placing the

remainder of its employees on administrative leave, unless they

were authorized to perform a work task. See, e.g., id. at 465.

And it decided to eliminate software enabling employees to

work remotely. Id. at 239.

C

Six plaintiffs claim various harms from these actions,

which they characterize as a coordinated effort “to eliminate

the CFPB.” J.A. 44. Two plaintiff organizations—the

National Treasury Employees Union (NTEU) and the CFPB

Employee Association—represent Bureau employees. They

allege that the wholesale termination of their members will

harm the members and cause the organizations to lose revenue.

Three plaintiff organizations—the National Association for the

Advancement of Colored People (NAACP), the National

Consumer Law Center (NCLC), and the Virginia Poverty Law

Center (VPLC)—claim harm from the loss of services provided

by the Bureau. NCLC also alleges that the Bureau cancelled

subscriptions to several of its publications. The final plaintiff,

Ted Steege, alleges that his late wife could not meet with the

Student Loan Ombudsman after that official was fired.

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The plaintiffs brought two claims. First, the government’s

“actions to eliminate” the Bureau “usurp legislative authority

conferred upon Congress by the Constitution.” J.A. 44.

Second, the “actions to suspend or terminate CFPB’s

statutorily mandated activities—including by issuing stop-

work instructions, cancelling contracts, declining and returning

funding, firing employees, and terminating the lease for its

headquarters—constitute final agency action” that is

reviewable under the APA, unlawful, arbitrary, and in excess

of the agency’s authority. Id. at 46–47.2 The plaintiffs asked

the district court to set aside “actions and intended further

actions to dismantle the CFPB, including issuance of stop-work

instructions, cancellation of contracts, declining and returning

funding, reductions in force, firing of employees, and

termination of the lease for its headquarters.” Id. at 47. The

plaintiffs further sought to enjoin the CFPB from issuing stop-

work instructions and to require the agency “to resume

immediately all activities that CFPB is required by statute to

perform.” Id. at 48.

After a two-day evidentiary hearing, the district court

granted a preliminary injunction on March 28. The court found

that the government was “engaged in a concerted, expedited

effort to shut the agency down” and that it had “no intention of

operating the CFPB at all.” See NTEU v. Vought, 774 F. Supp.

3d 1, 58 (D.D.C. 2025). From that premise, the court

concluded that the plaintiffs were likely to prevail on their

separation-of-powers claim, id. at 55–77, and their APA

claims, id. at 77–78. The court identified only two putative

final agency actions undergirding the APA claims: the

February 10 email sent by Vought, id. at 77, and the “wholesale

2

The plaintiffs also challenge the President’s designation of

Vought as the CFPB’s Acting Director. J.A. 45. The district court

did not pass on this claim, so neither do we.

10

cessation of activities—the decision to shut down the agency

completely,” id. at 46. Among other things, the preliminary

injunction required the government to reinstate all probationary

and term employees who had been fired after February 10; to

refrain from firing any employee except for cause; to refrain

from instituting any work stoppage; to rescind all contract

terminations issued after February 10; to provide Bureau

employees with “either fully-equipped office space” or the

means to work remotely; and to maintain a toll-free telephone

number, website, and database in order to respond to consumer

complaints. Id. at 85–86.

The government appealed and moved for an emergency

stay. For purposes of the stay motion, it challenged only the

scope of the preliminary injunction. We issued a partial stay

that allowed the CFPB to terminate employees or stop work if

the agency determined, after a particularized assessment, that

the employees or work at issue were unnecessary to the

performance of the Bureau’s statutory duties. NTEU v. Vought,

No. 25-5091, 2025 WL 1721068 (D.C. Cir. Apr. 11, 2025).

Days later, the agency issued a RIF notice to more than

eighty percent of its workforce. J.A. 894. The Bureau

represented that it had made the individualized assessment

required by our partial stay order. Rather than attempt to police

compliance with that requirement, we lifted the partial stay

insofar as it allowed the government to conduct RIFs. NTEU

v. Vought, No. 25-5091, 2025 WL 1721136 (D.C. Cir. Apr. 28,

2025).

II

A preliminary injunction is “an extraordinary remedy that

may only be awarded upon a clear showing that the plaintiff is

entitled to such relief.” Winter v. NRDC, 555 U.S. 7, 22 (2008).

To obtain a preliminary injunction, the plaintiff “must establish

11

that he is likely to succeed on the merits, that he is likely to

suffer irreparable harm in the absence of preliminary relief, that

the balance of equities tips in his favor, and that an injunction

is in the public interest.” Id. at 20. We have reserved the

question whether a strong showing on one of the Winter factors

may compensate for a weaker showing on another, despite

expressing some skepticism on that point. Sherley v. Sebelius,

644 F.3d 388, 392–93 (D.C. Cir. 2011). Regardless of that

possibility, if a court concludes that a claim fails as a matter of

law—on a point of jurisdiction or merits—then a preliminary

injunction is inappropriate. See United States Ass’n of Reptile

Keepers, Inc. v. Zinke, 852 F.3d 1131, 1135 (D.C. Cir. 2017)

(“When, as here, the ruling under review rests solely on a

premise as to the applicable rule of law, and the facts are

established or of no controlling relevance, we may resolve the

merits even though the appeal is from the entry of a preliminary

injunction.” (cleaned up)); see also, e.g., Munaf v. Geren, 553

U.S. 674, 691–92 (2008); Wrenn v. D.C., 864 F.3d 650, 667

(D.C. Cir. 2017); Arkansas Dairy Co-op Ass’n, Inc. v. USDA,

573 F.3d 815, 832–33 (D.C. Cir. 2009).

Although we review the grant of a preliminary injunction

for abuse of discretion, we review de novo any “underlying

legal conclusions.” CityFed Fin. Corp. v. OTS, 58 F.3d 738,

746 (D.C. Cir. 1995).

III

As always, we start with jurisdiction. Because the district

court granted a preliminary injunction, our appellate

jurisdiction is secure. See 28 U.S.C. § 1292(a)(1). The CFPB

contends that the district court lacked statutory jurisdiction

over the claims of organizations representing its employees and

that none of the other plaintiffs has Article III standing. We

agree with the first contention but disagree with the second.

12

A

District courts usually have jurisdiction over claims arising

under federal law, 28 U.S.C. § 1331, but a special statutory

review scheme may displace that jurisdiction. Axon Enter.,

Inc. v. FTC, 598 U.S. 175, 185 (2023). To decide whether such

a scheme displaces section 1331, we consider two questions.

First, we ask whether a preclusive intent is “fairly discernible

in the statutory scheme.” Thunder Basin Coal Co. v. Reich,

510 U.S. 200, 207 (1994) (cleaned up). Second, we ask

whether the claims at issue “are of the type Congress intended

to be reviewed within” the special scheme. Id. at 212.

The injuries alleged by NTEU and the CFPB Employee

Association flow from their members’ loss of employment.

NTEU represents agency employees who have already been

fired or may soon be fired, which will harm the employees and

decrease NTEU’s revenue. The Employee Association

likewise represents such employees. These plaintiffs thus seek

to redress injuries from agency decisions to fire employees.

But a specialized-review scheme governs such claims and ousts

the district courts of their arising-under jurisdiction.

The Civil Service Reform Act, 5 U.S.C. § 1101 et seq.,

which includes the Federal Service Labor-Management

Relations Statute, comprehensively “regulates virtually every

aspect of federal employment.” Nyunt v. Chairman, Broad. Bd.

of Governors, 589 F.3d 445, 448 (D.C. Cir. 2009). Through it,

Congress “carefully constructed a system for review and

resolution of federal employment disputes, intentionally

providing—and intentionally not providing—particular forums

and procedures for particular kinds of claims.” Filebark v.

Dep’t of Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009). The

CSRA permits federal employees to seek review of adverse

personnel actions in the Merit Systems Protection Board

13

(MSPB), which may grant relief including reinstatement,

backpay, and attorney’s fees. See 5 U.S.C. §§ 7701(a),

1204(a)(2), 7701(g); 5 C.F.R. § 351.901. MSPB decisions in

turn are reviewable in the Federal Circuit. See 5 U.S.C.

§ 7703(a)(1), (b)(1). Similarly, the FSLMRS provides for the

adjudication of federal labor disputes before the Federal Labor

Relations Authority, which also may order reinstatement with

backpay. See id. §§ 7105(a)(2)(G), 7116(a), 7118. Its

decisions are reviewable in the courts of appeals. Id. § 7123(a),

(c). For covered claims, this scheme is “exclusive.” Elgin v.

Dep’t of Treasury, 567 U.S. 1, 5 (2012); see AFGE v. Trump,

929 F.3d 748, 755 (D.C. Cir. 2019).

The organizations contend that their claims, though keyed

to adverse employment actions taken against CFPB employees,

fall outside the CSRA. “Claims will be found to fall outside of

the scope of a special statutory scheme in only limited

circumstances, when (1) a finding of preclusion might

foreclose all meaningful judicial review; (2) the claims are

wholly collateral to the statutory review provisions; and (3) the

claims are beyond the expertise of the agency.” AFGE, 929

F.3d at 755 (cleaned up). Here, none of these considerations

applies.

First, a finding of preclusion would not foreclose

meaningful judicial review. The organizations’ injuries arise

from the termination of their members, which the MSPB and

FLRA may remedy by ordering reinstatement with backpay.

See 5 U.S.C. §§ 1204(a)(2), 7118(a)(7)(C). The organizations

object that the MSPB or FLRA might not reinstate employees

to positions that have been abolished. But they cite only one

decision indicating that, as a matter of discretion, the MSPB

does not typically reinstate employees to abolished positions

when other comparable jobs are available. See Bullock v. Dep’t

of Air Force, 80 M.S.P.R. 361 (M.S.P.B. 1998). In any event,

14

the Supreme Court has held that the CSRA provides the

exclusive means for federal employees to obtain judicial

review of adverse personnel actions even in circumstances

where, unlike here, the CSRA itself forecloses review. See

United States v. Fausto, 484 U.S. 439, 447 (1988).

Second, the organizations’ claims are not wholly collateral

to the CSRA scheme. Claims that “seek to reverse the removal

decisions” at issue are not wholly collateral to the CSRA, as

the Supreme Court held in Elgin. See 567 U.S. at 22 (“A

challenge to removal is precisely the type of personnel action

regularly adjudicated by the MSPB and the Federal Circuit

within the CSRA scheme.”). The organizations seek to obtain

reinstatement for members already terminated and to prevent

the CFPB from terminating other members in the future, which

is precisely the relief afforded through the CSRA.

Third, the organizations’ claims are not beyond the

expertise of the MSPB and the FLRA. As explained above, the

claims seek redress for allegedly unlawful terminations—the

heartland of CSRA coverage. The organizations object that

these agencies have no expertise regarding broad disputes

about agency shutdowns. In Elgin, however, the Supreme

Court held that the CSRA review scheme is exclusive even

where the harmed employee contends that a governing “federal

statute is unconstitutional.” 567 U.S. at 5. The same rationale

controls here, where the claim is that an agency has violated

the Constitution by disregarding federal statutes.3

3

It is unclear whether the CFPB Employees Association, which

is neither a federal employee nor a labor union, could itself invoke

the CSRA to obtain reinstatement for its members. But assuming it

cannot, its “exclusion … from the provisions establishing

administrative and judicial review for personnel action” is no reason

to permit it to seek judicial review of personnel actions under other

15

In sum, the CSRA precludes district-court jurisdiction

over the claims of the NTEU and CFPB Employee Association.

B

The remaining four plaintiffs do not seek redress for

employment-related injuries, but the government contends that

they lack constitutional standing under Article III. In assessing

the sufficiency of standing allegations, we take the plaintiffs’

merits theory as a given. Tanner-Brown v. Haaland, 105 F.4th

437, 444 (D.C. Cir. 2024). Here, that means we assume that

CFPB leadership was unlawfully attempting to dismantle the

Bureau. For standing purposes, the question is whether these

plaintiffs have shown that dismantling the Bureau would cause

them to suffer a concrete, particularized injury that a favorable

decision would likely redress. See TransUnion LLC v.

Ramirez, 594 U.S. 413, 423 (2021).

An organization can establish standing based on an injury

to one or more of its members. Students for Fair Admissions,

Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181,

199 (2023) (SFFA). We call this kind of standing associational

standing. See, e.g., Sierra Club v. FERC, 827 F.3d 59, 65 (D.C.

Cir. 2016). “To invoke it, an organization must demonstrate

that (a) its members would otherwise have standing to sue in

their own right; (b) the interests it seeks to protect are germane

to the organization’s purpose; and (c) neither the claim asserted

provisions. Fausto, 484 U.S. at 455. In Block v. Community

Nutrition Institute, 467 U.S. 340 (1984), the Supreme Court held that

a statute creating a special statutory review scheme for challenges to

regulatory action brought by dairy producers and handlers—but not

consumers—foreclosed judicial review for claims by consumers. Id.

at 347. The same reasoning applies here; if employees cannot end-

run the CSRA’s reticulated scheme of administrative and judicial

review, then neither can organizations representing employees.

16

nor the relief requested requires the participation of individual

members in the lawsuit.” SFFA, 600 U.S. at 199 (cleaned up).

The NAACP meets these requirements. It is a membership

organization that works to “accelerate the well-being,

education, and economic security of Black people and all

persons of color.” J.A. 57. In furtherance of that mission, it

was “actively working” with the CFPB “to address predatory

practices for NAACP members who were victims of the Los

Angeles wildfires.” Id. On the NAACP’s telling, the CFPB

promised to send it educational materials for NAACP members

but “did not do so because of the shutdown.” Id. at 58. As a

result, at least one NAACP member, Juanita West-Tillman,

was denied access to these materials, which have at least some

monetary value. See id. at 217–18. She therefore suffered a

concrete injury. And her injury would likely be redressed by

an injunction, which would enable CFPB staff to proceed with

its plans to assist wildfire victims. Her injury also relates to the

financial education of NAACP members, which is germane to

the NAACP’s purpose, and there is no reason this suit requires

her individual participation. The NAACP thus has

associational standing.

Because the NAACP’s claims suffice to tee up the

dispositive questions that we address below, we need not

consider whether the other plaintiffs have Article III standing.

Biden v. Nebraska, 600 U.S. 477, 489 (2023).

IV

This case arises from several actions taken by CFPB

leadership to downsize the agency. They laid off employees,

cancelled contracts, decided to move to smaller headquarters,

declined additional funding, and subjected work to an advance-

approval requirement. In the ordinary course, the plaintiffs

here could challenge many of these actions in court. As

17

explained above, aggrieved employees (like members of

NTEU and the CFPB Employee Association) could challenge

their terminations before the MSPB or the FLRA. Aggrieved

service providers (like the NCLC) could claim breaches of

contract in the Court of Federal Claims. See 28 U.S.C. § 1491.

And aggrieved consumers of services that the CFPB must

provide to the public (like the NAACP, NCLC, and VPLC)

could file APA actions alleging that the service has been

unlawfully withheld or unreasonably delayed. See 5 U.S.C.

§ 706(1). Such challenges would target specific agency action

or inaction that is alleged to be unlawful and to harm specific

individual plaintiffs. And the courts, if they set aside the

specific action alleged to be unlawful, or compelled the specific

action alleged to be unlawfully withheld, could redress the

specific injuries of individual plaintiffs.

This case is not constructed like that. Instead, the plaintiffs

seek to challenge what they describe as a single, overarching

decision to shut down the CFPB, which they infer from the

various discrete actions noted above. To remedy that asserted

decision, they seek pervasive judicial control over the day-to-

day management of the agency, including decisions about how

many employees the agency may terminate, how many

contracts it may cancel, how it may approve work, which

buildings it must occupy, and how employees will complete

remote work. Furthermore, the plaintiffs urge all this despite

the lack of any causal connection between many of the specific

agency actions alleged to comprise the shutdown (for example,

not providing reports regarding credit cards) and the specific

injuries alleged by these plaintiffs (for example, Mr. Steege’s

ongoing difficulty in addressing his late wife’s student loans).

As we now explain, this challenge is not viable. It cannot

be brought under the APA because that statute provides a cause

of action to challenge discrete, final agency action, which the

18

claims here do not target. And it cannot be brought in equity

because the claims here neither raise constitutional questions

nor satisfy the stringent prerequisites for ultra vires review.

V

The Administrative Procedure Act provides the standard

means for obtaining judicial review of federal agency action.

Yet the plaintiffs and the district court downplay it. The district

court treated the APA claims as an afterthought, warranting

two short paragraphs of analysis after an exhaustive, 23-page

discussion of what it described as non-APA “ultra vires and

constitutional claims.” NTEU, 774 F. Supp. 3d at 55–78.

Likewise, the plaintiffs lead with a contention that the

Constitution itself confers an implied right of action to

challenge what they describe as separation-of-powers

violations. The court and the plaintiffs have good reason to be

skittish about the APA claims here.

A

The APA cabins the timing, focus, and intensiveness of

judicial review of federal agency action. It requires the

plaintiff to target specific agency action that has caused him an

injury. It requires that action to be final, ripe for review, and

discrete. And it does not permit the courts to superintend how

an agency carries out its broad statutory responsibilities.

1

By its terms, the APA structures judicial review around

“agency action” that harms the plaintiff and, unless another

statute provides otherwise, around such “final” agency action.

It provides that a person “suffering legal wrong because of

agency action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is entitled to

19

judicial review.” 5 U.S.C. § 702. It permits judicial review of

“[a]gency action made reviewable by statute and final agency

action for which there is no other adequate remedy in a court.”

Id. § 704. And it instructs reviewing courts to “compel agency

action unlawfully withheld or unreasonably delayed” or to “set

aside agency action” that is arbitrary or otherwise unlawful. Id.

§ 706(1), (2). The APA defines “agency action” to include “the

whole or a part of an agency rule, order, license, sanction,

relief, or the equivalent or denial thereof, or failure to act.” Id.

§ 551(13); see also id. § 701(b)(2) (same definition).

To be reviewable through the APA, agency action must be

final and ripe for review. See 5 U.S.C. § 704 (finality); Abbott

Laboratories v. Gardner, 387 U.S. 136, 148 (1967) (ripeness).

To be final, agency action must “mark the consummation of

the agency’s decisionmaking process,” Bennett v. Spear, 520

U.S. 154, 178 (1997) (cleaned up), and must impose “direct and

appreciable legal consequences” on the plaintiff, Army Corps

of Eng’rs v. Hawkes Co., 578 U.S. 590, 598 (2016) (quoting

Bennett, 520 U.S. at 178). If an action affects the challenger’s

rights only “on the contingency of future administrative

action,” it is not final. DRG Funding Corp. v. Sec’y of Hous.

& Urb. Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996) (quoting

Rochester Tel. Corp. v. United States, 307 U.S. 125, 130

(1939)); see also Franklin v. Massachusetts, 505 U.S. 788, 797

(1992) (action must “directly affect the parties”). In assessing

finality, we evaluate agency action relative to the

“decisionmaking processes set out in [the] agency’s governing

statutes and regulations.” Soundboard Ass’n v. FTC, 888 F.3d

1261, 1267 (D.C. Cir. 2018). And we may consider “post-

guidance events to determine whether the agency has applied

the guidance as if it were binding on regulated parties.” Nat’l

Mining Ass’n v. McCarthy, 758 F.3d 243, 253 (D.C. Cir. 2014)

(Kavanaugh, J.). The ripeness inquiry is similar: “[It] requires

us to consider ‘the fitness of the issues for judicial review and

20

the hardship to the parties of withholding court consideration.’”

Village of Bensenville v. FAA, 376 F.3d 1114, 1119 (D.C. Cir.

2004) (quoting Abbott Laboratories, 387 U.S. at 149). An

action is ripe for review only if it has caused, or threatens,

direct and immediate harm to the plaintiff. Nat’l Ass’n of Home

Builders v. Army Corps of Eng’rs, 417 F.3d 1272, 1281, 1283

(D.C. Cir. 2005).

To illustrate these principles, consider the difference

between a legislative rule and an agency plan. A legislative

rule is typically reviewable. It is formally promulgated at the

end of a defined process for the adoption of specific legal text.

5 U.S.C. § 553. And it binds both the agency and regulated

parties, who must conform their behavior to the rule or else face

legal penalties. See Abbott Laboratories, 387 U.S. at 151

(regulated parties); United States ex rel. Accardi v.

Shaughnessy, 347 U.S. 260, 267 (1954) (agency). These

characteristics often make legislative rules an appropriate

target for APA review, Abbott Laboratories, 387 U.S. at 150,

unless the rule is unclear in its application or its immediate

effects are modest, see Toilet Goods Ass’n v. Gardner, 387

U.S. 158, 164–65 (1967). In contrast, an agency plan is

unreviewable insofar as it reflects only a nonbinding statement

of something the agency intends to do in the future. See Fund

for Animals, Inc. v. Bureau of Land Mgmt., 460 F.3d 13, 18–22

(D.C. Cir. 2006). Because such a plan has no immediate effect,

a plaintiff cannot challenge the plan itself but instead must

await further agency actions implementing it. See id. at 22.

Finality and ripeness standards are flexible, so informal

guidance documents sometimes are reviewable. See Cal.

Cmtys. Against Toxics v. EPA, 934 F.3d 627, 634–36 (D.C. Cir.

2019). But to be reviewable, such items must impose standards

that the agency treats as binding. See, e.g., id. at 638–40; Nat’l

Mining Ass’n, 758 F.3d at 252 (“The most important factor

concerns the actual legal effect (or lack thereof) of the agency

21

action in question on regulated entities.”); Nat’l Env’t Dev.

Ass’n’s Clean Air Project v. EPA, 752 F.3d 999, 1007 (D.C.

Cir. 2014) (internal directive “provide[d] firm guidance” that

enforcement officials “relied on”).

2

In Lujan v. National Wildlife Federation, 497 U.S. 871

(1990), the Supreme Court held that “agency action” under the

APA must also be “specific.” See id. at 894. The plaintiffs

there alleged that the Bureau of Land Management (BLM)

made various land-use decisions that violated the governing

statutes. See id. at 879. Rather than challenge any of these

actions individually, the plaintiffs sought to challenge all of

them together, grouped under what they described as a “land

withdrawal review program.” Id. at 890. Rejecting the

challenge, the Supreme Court held that the APA requires a

plaintiff to “direct its attack against some particular ‘agency

action’ that causes it harm.” Id. at 891 (emphasis added). The

Court reasoned that the “land withdrawal review program” was

not “derived from any authoritative text” in the governing

statutes or regulations and did not “refer to a single BLM order

or regulation, or even to a completed universe of particular

BLM orders and regulations.” Id. at 890. Instead, it was

simply shorthand for the “continuing (and thus constantly

changing) operations of the BLM” in administering public

lands, and was no more a “final agency action” than “a

‘weapons procurement program’ of the Department of Defense

or a ‘drug interdiction program’ of the Drug Enforcement

Administration,” neither of which would themselves be

reviewable. Id. The Court stressed that any “flaws in the entire

‘program’—consisting principally of the many individual

actions referenced in the complaint, and presumably action yet

to be taken as well—cannot be laid before the courts for

wholesale correction under the APA, simply because one of

22

them that is ripe for review adversely affects” one of the

plaintiffs. Id. at 893. To the contrary, the APA requires a

“case-by-case approach” targeting “specific ‘final agency

action,’” rather than “more sweeping actions” seeking

“systemic improvement” at a “higher level of generality.” Id.

at 894; see also id. at 891 (APA does not authorize courts to

consider “wholesale improvement” or “programmatic

improvements” in agency administration).

Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55

(2004) (SUWA), elaborated on these principles in the context

of APA actions under 5 U.S.C. § 706(1) to “compel agency

action unlawfully withheld.” The Court made clear that the

withheld action must be a “circumscribed, discrete agency

action[],” 542 U.S. at 62, which “precludes the kind of broad

programmatic attack” rejected in National Wildlife, id. at 64.

And consistent with traditional mandamus standards, the

compelled action must also be one that the agency is “legally

required” to take, id. at 63, which “rules out judicial direction

of even discrete agency action that is not demanded by law,”

id. at 65. Combining both principles, “a claim under § 706(1)

can proceed only where a plaintiff asserts that an agency failed

to take a discrete agency action that it is required to take.” Id.

at 64. SUWA involved a statute requiring the BLM to manage

certain lands “in a manner so as not to impair the suitability of

such areas for preservation as wilderness.” 43 U.S.C.

§ 1782(c). The Court described this statute as “mandatory as

to the object to be achieved,” but still leaving the agency “a

great deal of discretion in deciding how to achieve it.” 542

U.S. at 66. The plaintiffs contended that BLM was violating

the statute. Id. at 65. But instead of identifying any discrete

action that BLM allegedly was taking or withholding

unlawfully, they sought an order simply compelling BLM to

comply with the non-impairment mandate. See id. at 66.

Rejecting that claim, the Court explained that the APA does not

23

authorize general orders compelling compliance with such

“broad statutory mandates.” Id. Orders like that would require

the courts, in determining whether “compliance was achieved,”

to become enmeshed in “day-to-day agency management.” Id.

at 66–67. And the APA does not permit “pervasive oversight

by federal courts over the manner and pace of agency

compliance with such congressional directives.” Id. at 67.

In Fund for Animals, this Court held that National Wildlife

and SUWA barred APA review of a BLM “plan” to achieve a

mandatory statutory goal of protecting wild horses. See 460

F.3d at 15, 20–22. The “plan” consisted of “many individual

actions,” some of which were not themselves legally required.

See id. at 20–21 (cleaned up). For such general plans, we

concluded, “it is only specific actions implementing the plans

that are subject to judicial scrutiny.” Id. at 21; see also City of

New York v. DoD, 913 F.3d 423, 432 (4th Cir. 2019) (National

Wildlife and SUWA limit review to “only those acts that are

specific enough to avoid entangling the judiciary in

programmatic oversight, clear enough to avoid substituting

judicial judgments for those of the executive branch, and

substantial enough to prevent an incursion into internal agency

management”).

* * * *

These requirements—agency action, finality, ripeness, and

discreteness—reflect that the APA does not make federal

courts “roving commissions” assigned to pass on how well

federal agencies are satisfying their statutory obligations.

Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973). Rather,

a court may intervene only when a specific unlawful action

harms the plaintiff, and only to the extent necessary to set aside

that action. By avoiding premature adjudication and narrowing

the scope of judicial review, these requirements “protect

24

agencies from undue judicial interference with their lawful

discretion[] and … avoid judicial entanglement in abstract

policy disagreements which courts lack both expertise and

information to resolve.” SUWA, 542 U.S. at 66.4

B

The plaintiffs here complain about a slew of different

CFPB “actions” that include “issuing stop-work instructions,

cancelling contracts, declining and returning funding, firing

employees, and terminating the lease for its headquarters.”

J.A. 46–47. But they point to only two actions that allegedly

satisfy the finality, ripeness, and discreteness requirements

summarized above. One of them is an email asking employees

to obtain approval before performing work. Another is an

4

Two other APA limitations reinforce these points. First, APA

review normally is based on an administrative record, obviating the

need for intrusive discovery into internal agency processes. See, e.g.,

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549

(1978); Camp v. Pitts, 411 U.S. 138, 142–43 (1973) (per curiam).

That limit is inconsistent with a focus on putative agency action that

requires a multi-day evidentiary hearing just to identify. Second,

once the reviewing court corrects a discrete legal error, it normally

must remand rather than retain jurisdiction to implement a complex

remedial decree. See, e.g., Calcutt v. FDIC, 598 U.S. 623, 629

(2023) (“the function of the reviewing court ends when an error of

law is laid bare” (quoting FPC v. Idaho Power Co., 344 U.S. 17, 20

(1952))). That limit is inconsistent with programmatic review of

broad agency management.

25

asserted decision, inferred from the various discrete actions

mentioned, to shut down the Bureau.

1

On February 10, the Acting Director of the CFPB emailed

agency staff. In its entirety, the email stated:

As you have been informed by the Chief Operating

Officer in an email yesterday, the Bureau’s DC

headquarters building is closed this week. Employees

should not come into the office. Please do not perform

any work tasks. If there are any urgent matters, please

alert me through Mark Paoletta, Chief Legal Officer,

to get approval in writing before performing any work

task. His email is [redacted]. Otherwise, employees

should stand down from performing any work task.

Thank you for your attention on this matter.

J.A. 101.

This email does not qualify as final agency action. To

begin with, it did not mark the consummation of any agency

decision-making process, much less a defined process for

rulemaking, adjudication, or anything equivalent. The email

was not formally promulgated, much less published in the Code

of Federal Regulations, the Federal Register, or any official

agency records. In context, it reflected a new presidential

Administration and a new Acting Director trying to assess all

agency activities. And it linked the prior-approval requirement

to a short-term exigency requiring the temporary closure of

agency headquarters. Most importantly, the email did not

definitively decide anything. Instead, it merely directed

employees to obtain advance approval before performing work,

while remaining silent on legally mandated work and leaving

the Chief Legal Officer with discretion to approve it.

26

Likewise, the email triggered no appreciable legal

consequences for employees, contractors, regulated parties, or

members of the public. It neither terminated any employees

nor cancelled any contracts. It did not purport to prohibit any

statutorily required tasks. Because the Chief Legal Officer did

approve many tasks upon request, it is difficult to see how the

email affected the plaintiffs even practically, much less how it

directly changed their legal rights. See note 1, supra. Finally,

less than three weeks after that email, the Chief Legal Officer

sent another email clarifying that “[e]mployees should be

performing work that is required by law and do not need to seek

prior approval to do so.” J.A. 387. So the February 10 email

by its terms did not require legally mandatory work to be

abandoned, and the CFPB did not apply the email “as if it were

binding” on that question. See Nat’l Mining Ass’n, 758 F.3d at

253.

The plaintiffs note that staff directives and other informal

kinds of agency action are sometimes reviewable under the

APA. That is true, but only if the agency treats the action as

binding, and only if the action has appreciable legal

consequences for the plaintiff. See Cal. Cmtys. Against Toxics,

934 F.3d at 638–40; Nat’l Mining Ass’n, 758 F.3d at 252. The

authorities cited by the plaintiffs confirm as much. The internal

directive in National Environmental Development Association

“provide[d] firm guidance to enforcement officials,” who

“relied on” it in making permitting decisions throughout the

country. See 752 F.3d at 1007. Likewise, the letter in Ciba-

Geigy Corp. v. EPA, 801 F.2d 430 (D.C. Cir. 1986), informed

a regulated party of the agency’s considered view that the party

had no right to a hearing it desired. See id. at 436–38. The

February 10 email, in requiring advance approval to perform

work, does nothing so firm or consequential.

27

2

We turn next to the putative shutdown decision. The

plaintiffs point to no regulation, order, document, email, or

other statement, written or oral, purporting to shut down the

CFPB. Instead, they infer such an overarching decision from

various discrete “actions” taken by agency leadership to

downsize the Bureau, “including by issuing stop-work

instructions, cancelling contracts, declining and returning

funding, firing employees, and terminating the lease for its

headquarters.” J.A. 46–47. The district court found a “decision

to shut down the agency completely” and equated it to a

“wholesale cessation” of CFPB activities. NTEU, 774 F. Supp.

3d at 46.

For its part, the government does not claim the power to

“shut down” the CFPB. Nor could it. Congressional statutes

create the Bureau and define its powers and duties. Agency

officials cannot wipe those provisions off the books.

Moreover, as explained above, many CFPB functions are

mandatory; for example, the Bureau must respond to consumer

complaints, disseminate various reports, and assist individuals

with student loans. The agency does not suggest that it could

lawfully abandon these various responsibilities. Finally, while

the Bureau’s rulemaking, enforcement, and adjudicatory

powers are discretionary, we assume that it must engage in

some regulation of, say, the Nation’s largest banks. See

Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985).

Instead, the government disputes that it undertook to shut

down the CFPB. First, it contends that agency leadership at all

times intended for the Bureau to remain open and to perform

all of its statutorily required functions. Second, it contends that

no decision to shut down the Bureau was ever reduced to final,

reviewable agency action. Questions of what CFPB leadership

28

wanted or intended to do at any particular point in time are

factual, and we are reluctant to conclude that the district court’s

factual assessments were clearly erroneous. But the question

of what counts as final agency action reviewable under the

APA is a legal one, which we decide without deference to the

district court. See, e.g., Soundboard Ass’n, 888 F.3d at 1267–

74; Nat’l Mining, 758 F.3d at 250–53. On that question, we

agree with the government that there was no reviewable

decision to shut down the CFPB.

First, the APA does not authorize review of “abstract

decision[s] apart from specific agency action, as defined in the

APA.” Biden v. Texas, 597 U.S. 785, 809 (2022). In Biden v.

Texas, the Secretary of Homeland Security issued a June 1,

2021 memorandum “officially terminating” a discretionary

immigration program known as the Migrant Protection

Protocols. See id. at 793. After a court set aside that

termination and remanded for further consideration, the

Secretary again formally terminated the program on October

29, 2021, this time with some forty pages of reasoning. See id.

at 795–96. The court of appeals treated the second termination

not as a separately reviewable agency action, but as a mere

“post hoc rationalization[]” for what it described as a

“Termination Decision” independent of the June 1 and

October 29 memoranda. See id. at 796–97, 809–10. The

Supreme Court reversed. Quoting from the APA’s definition

of a “rule,” it held that the court of appeals had erred “by

postulating the existence of an agency decision wholly apart

from any ‘agency statement of general or particular

applicability … designed to implement’ that decision.” Id. at

809 (quoting 5 U.S.C. § 551(4)).

Here, too, there is no such “action” as defined in the

APA—i.e., no such “rule, order, license, sanction, relief, or the

equivalent or denial thereof, or failure to act,” 5 U.S.C.

29

§ 551(13). The plaintiffs suggest that the putative shutdown

decision qualifies as a rule, which would require some “agency

statement” designed “to implement, interpret, or prescribe law

or policy.” Id. § 551(4) (emphasis added). The plaintiffs point

to no such statement, formal or informal, written or oral. Nor

do they suggest that the putative shutdown decision is anything

like an “order, license, sanction, [or] relief.” These too are

defined terms, see id. § 551(6), (8), (10), (11), and a decision

to shut down an agency would not satisfy any of the definitions.

In sum, the shutdown decision posited here, like the

Termination Decision posited in Biden v. Texas, is an abstract

decision “wholly apart from” any “specific agency action, as

defined in the APA.” 597 U.S. at 809.5

5

The dissent responds that section 551(13)’s definition of

“agency action” encompasses “comprehensively every manner in

which an agency may exercise its power.” Post at 22, 45 (quoting

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 478 (2001)). But

American Trucking involved only a question about finality, not

whether there was “agency action” to begin with. See 531 U.S. at

478–79. Moreover, in SUWA, the Court looked to the specific

defined terms embedded in section 551(13)—“rule, order, license,

sanction, relief, or the equivalent or denial thereof”—to limit the

scope of what counts as “agency action” under the APA. See 542

U.S. at 62–63. Likewise, in Biden v. Texas, the Court looked to the

specific definition of an APA “rule”—an “agency statement of

general or particular applicability … designed to implement” a

decision—to hold that an alleged abstract decision to terminate an

agency program, distinct from the one announced by memorandum,

was not “agency action” under the APA. See 597 U.S. at 809–10.

We too “have long recognized that the term [agency action] is not so

all-encompassing as to authorize us to exercise judicial review over

everything done by an administrative agency.” Indep. Equip.

Dealers Ass’n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004) (cleaned

up). For example, agencies do many things “in anticipation of”

taking “agency action,” such as making budget requests. Fund for

30

Second, the putative shutdown decision was not final

agency action. No such decision by itself effected the

termination of any employees or the cancellation of any

contracts. To the contrary, as the CFPB attempted to downsize,

it had to undertake separate, discrete actions to lay off workers

and cancel contracts—actions that, had they not been

preliminarily enjoined, would have been reviewable in the

MSPB or the Court of Federal Claims. Nor did the posited

shutdown prohibit any legally required work. As explained

above, CFPB transitional leadership made a handful of

statements addressing what work employees could do during

the initial days of the new presidential Administration. While

these statements all required prior approval to perform work,

three of them expressly excepted legally required work, J.A.

110 (Bessent on Feb. 3); id. at 117 (Vought on Feb. 8); id. at

387 (Paoletta on Mar. 2), while one of them expressly

empowered the Chief Legal Officer to approve work, id. at 101

(Vought on Feb. 10). And the Chief Legal Officer did, in fact,

Animals, Inc., 460 F.3d at 19–20. A budget request “may serve as a

useful planning document, but it is not a ‘rule,’” id. at 20, because it

is not a “statement … designed to implement, interpret, or prescribe

law or policy,” 5 U.S.C. § 551(4). Neither are an agency director’s

non-public, unrecorded decisions.

The dissent further contends that the Acting Director’s alleged

unrecorded decision to shut down the Bureau was “the equivalent”

of a rule. Post at 43–44 (quoting 5 U.S.C. § 551(13)). But again, a

“rule” is an “agency statement.” 5 U.S.C. § 551(4) (emphasis

added). A “statement” is something that one says or writes, usually

to make something known to others. See Statement, Webster’s New

International Dictionary of the English Language (2d ed. 1945) (“Act

of stating, reciting, or presenting, orally or on paper”); Present,

Webster’s New International Dictionary of the English Language (2d

ed. 1945) (“to bring to anyone’s attention or cognizance … to show;

display; set forth; describe”). Unexpressed decisions are the

opposite of, not something “equivalent” to, such a “statement.”

31

approve much legally required work. So there was neither a

definitive agency decision to stop mandatory work nor a direct

and appreciable impact on the rights of the plaintiffs.

Third, the posited shutdown decision is insufficiently

discrete to qualify as “agency action.” To begin with, no statute

or regulation authorizes the CFPB to shut itself down, so the

posited decision is not “derived from any authoritative text”

that might help structure judicial review. See Nat’l Wildlife

Fed’n, 497 U.S. at 890. Nor does the posited shutdown

decision “refer to a single [CFPB] order or regulation, or even

to a completed universe of particular [CFPB] orders and

regulations.” See id. Instead, it is the plaintiffs’ way of

referring to a constellation of then-ongoing actions—the

February 10 email, firing employees, cancelling contracts,

declining additional funding, and terminating the lease for the

Bureau’s current headquarters. Rather than seeking to

challenge any of these discrete decisions that may have caused

them harm, the plaintiffs seek to dress up these “many

individual actions” as a single decision in order to challenge all

of them at once, which is exactly what National Wildlife

prevents. See id. at 893.

Fourth, the discreteness problem is made worse by the

open-ended nature of the legal duties that the plaintiffs seek to

enforce. Essentially, they seek an order compelling the CFPB

to keep providing its mandatory services. See Oral Arg. Tr.

48–50 (proposing injunction barring the government from

“try[ing] to shut down the agency”). But while the statute

specifies various services that the Bureau must provide, it gives

the agency “a great deal of discretion in deciding how” to

provide them. SUWA, 542 U.S. at 66 (emphasis added). For

example, how many employees must the Bureau have to ensure

adequately functioning offices to process consumer

complaints, disseminate reports, and afford student-loan

32

assistance? Which contracts are essential for achieving those

objectives? How much funding is necessary for doing so?

Congress gave the Bureau discretion to make decisions like

these. See 12 U.S.C. § 5493(a)(1)(A) (“The Director may fix

the number of … employees of the Bureau.”); id. § 5497(a)(1)

(Director shall determine the funding “reasonably necessary to

carry out the authorities of the Bureau”). An order requiring

the Bureau to retain specified levels of employment,

contracting, funding, and the like would run afoul of SUWA’s

prohibition of “judicial direction of even discrete agency action

that is not demanded by law.” 542 U.S. at 65. And any

“general” order merely “compelling compliance with broad

statutory mandates” would present essentially the same

problem: The courts “would necessarily be empowered” to

“determine whether compliance was achieved—which would

mean that it would ultimately become the task of the

supervising court, rather than the agency, to work out

compliance with the broad statutory mandate, injecting the

judge into day-to-day agency management.” Id. at 66–67.

We faced exactly this problem in considering the

government’s motion for a stay pending appeal. Because the

government then challenged only the scope of the preliminary

injunction, we were presented with a dilemma that proved

insoluble: Enjoin specific activity like the termination of

agency employees, as the preliminary injunction had done,

which would restrict a wide range of activity that the agency

may lawfully undertake. Or, alternatively, craft a follow-the-

law injunction requiring the Bureau to retain enough

employees to meet its statutory obligations. Our partial stay

order tried the latter course, and it immediately embroiled the

courts in compliance issues about how many employees were

33

necessary—a determination that the Judicial Branch is neither

authorized nor competent to make.6

Finally, the challenge to the posited shutdown decision is

unripe. For starters, the issues are not fit for review. As

explained above, the plaintiffs point to no definitive statement

regarding an agency shutdown but seek to infer one from

various specific acts to downsize. Because the exact scope of

the putative shutdown is thus unclear, judicial review “is likely

to stand on a much surer footing in the context of a specific

application.” Toilet Goods Ass’n, 387 U.S. at 164. Moreover,

agency consideration remained ongoing, which means that

“judicial intervention would inappropriately interfere with

further administrative action.” Ohio Forestry Ass’n. v. Sierra

Club, 523 U.S. 726, 733 (1998); see also Texas v. United

States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for

adjudication if it rests upon contingent future events that may

not occur as anticipated, or indeed may not occur at all.”

(cleaned up)). Even if we assume, as the district court found,

that interim CFPB leadership at one point made an abstract

6

The dissent contends that SUWA has “little to say regarding

the merits of Plaintiffs’ section 706(2) challenge” to set aside agency

action because SUWA “is a section 706(1) case” to compel agency

action. Post at 35. But SUWA’s analysis turned on the fact that

section 706(1) “insist[s] upon an ‘agency action,’” 542 U.S. at 62, as

does section 706(2). Moreover, SUWA expressly built on National

Wildlife, which construed the phrase “agency action” in a section

706(2) case. See id. at 64–65. And SUWA’s concerns about overly

intrusive APA remedies do not fall away merely because a plaintiff

sues under section 706(2). See id. at 67 (“The prospect of pervasive

oversight by federal courts over the manner and pace of agency

compliance with such congressional directives is not contemplated

by the APA.” (emphasis added)). The concerns apply equally here,

where the plaintiffs ask us to enjoin the Bureau’s putative decision

not to meet its statutory responsibilities by issuing what is, in effect,

a general order compelling the agency to meet them.

34

decision to shut down the Bureau, see NTEU, 774 F. Supp. 3d

at 58–69, this decision was not final. Instead, the leadership

had an opportunity to change course before the decision

resulted in the denial of any service. And the Bureau did

change course—it has reactivated certain contracts, J.A. 663;

refined its RIF plans, id. at 758; and issued a directive to

“ensure that everyone is carrying out any statutorily required

work,” id. at 387. Under these circumstances, immediate

judicial review would deny the Bureau “an opportunity to

correct its own mistakes.” FTC v. Standard Oil Co., 449 U.S.

232, 242 (1980). In sum, regularly moving targets do not raise

issues fit for review. 7

Moreover, the plaintiffs will suffer no unusual hardship

from postponing review. Unlike in cases allowing pre-

enforcement review, the actions challenged here do not require

them “to engage in, or to refrain from, any conduct.” Texas v.

United States, 523 U.S. at 301. And if their fears come to pass,

they may “protect all of their rights and claims by returning to

court when the controversy ripens.” Atl. States Legal Found.

v. EPA, 325 F.3d 281, 285 (D.C. Cir. 2003). Specifically, they

7

The dissent dismisses the change in course as “whitewashing”

and asserts that it goes only to mootness. Post at 31–32. But the

Acting Director’s speedy renunciation of any intent to shut down the

Bureau, backed with concrete action, bears directly on whether there

was a final shutdown decision to begin with. As explained above,

we routinely consider shifting “post-guidance events” to determine

whether an agency treats any informal guidance “as if it were

binding.” Nat’l Mining Ass’n, 758 F.3d at 253. Moreover, a central

purpose of prudential ripeness doctrine is to allow an agency space

to “alter a tentative position.” Pub. Citizen Health Rsch. Grp. v.

FDA, 740 F.2d 21, 31 (D.C. Cir. 1984); see also Ohio Forestry Ass’n,

523 U.S. at 735. If the Bureau’s change in course here—before any

plaintiff was denied any statutorily required service—went only to

mootness, then the ripeness doctrine would be futile.

35

may seek judicial review to “compel agency action unlawfully

withheld or unreasonably delayed.” 5 U.S.C. § 706(1). In such

suits, they would have to wait until the Bureau actually denied

them a discrete service—and show either an immediate

entitlement to it or an unreasonable delay in providing it. See

Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C.

Cir. 1984). This is not a hardship; it is par for the course, even

in cases where plaintiffs’ lives and livelihoods depend on the

prompt receipt of agency services. See, e.g., Afghan & Iraqi

Allies v. Blinken, 103 F.4th 807, 810 (D.C. Cir. 2024) (delay in

the provision of “special-immigrant visas to certain Iraqi and

Afghan nationals who face serious threats because of their

faithful service to the United States”).

3

The plaintiffs respond by citing cases where unwritten

action, agency plans, and decisions to terminate agency

programs were held reviewable under the APA. They also seek

to distinguish National Wildlife and SUWA. But the cited cases

are inapposite, and the asserted distinctions fail.

Unwritten action. Cases involving final agency action not

committed to writing are few and far between. The plaintiffs

cite two. The first, Brotherhood of Locomotive Engineers and

Trainmen v. FRA, 972 F.3d 83 (D.C. Cir. 2020), is entirely

inapposite. It involved a regulatory scheme in which an

agency’s failure to act on a license application within a certain

number of days constituted an approval by operation of law.

Id. at 89–90. Approval of a license is final agency action,

whether committed to writing or not. Id. at 90; see 5 U.S.C.

§ 551(8), (13). Even so, we pointed to the application itself as

a “relevant written document” that would make clear exactly

what the agency had approved. See 972 F.3d at 100–01.

36

The second case, Venetian Casino Resort, LLC v. EEOC,

530 F.3d 925 (D.C. Cir. 2008), involved an EEOC policy

allowing the agency to disclose confidential information

without prior notice to the submitter. Id. at 929–30. The parties

disputed which version of a written compliance manual setting

forth the policy was operative, but the district court found the

versions to be “identical in all material aspects,” and neither

party contested that finding on appeal. See id. at 928–30.

Moreover, each version left “no doubt” that EEOC permitted

disclosure without prior notice, and the agency conceded as

much. See id. An employer who had submitted confidential

information sued to enjoin EEOC from relying on the policy to

disclose its information. EEOC objected that promulgating the

manual was not final agency action because the manual was

“merely a guidance document that d[id] not affect its own or

the public’s legal obligations.” Id. at 931. This Court

responded that “the agency took final action by adopting the

policy, not by including it in the Manual.” Id. We further noted

that the policy was ripe for review because EEOC was on the

cusp of applying it to harm the plaintiff. See id. at 927–28.

On the plaintiffs’ telling, Venetian Casino stands for the

proposition that the APA permits review of agencies’

unrecorded abstract decisions. But the policy at issue there was

recorded repeatedly, in different versions of an agency

compliance manual. Its terms were clear from the manual and

materially identical in both versions. See 530 F.3d at 929.

Moreover, the manual was disseminated to agency employees

precisely to guide their decisions. See id. at 928–29. So,

statements in the manual qualified as a rule, see 5 U.S.C.

§ 551(13), which was final because the agency treated them as

binding. See, e.g., Nat’l Mining Ass’n, 758 F.3d at 253; Nat’l

Env’t Dev. Ass’n’s Clean Air Project, 752 F.3d at 1007. None

of this suggests that the unrecorded shutdown decision at issue

here, which was expressed in no agency statement, qualifies as

37

a rule. To the contrary, courts cannot “postulat[e] the

existence” of a rule “wholly apart from” any agency statement

or its equivalent. See Biden v. Texas, 597 U.S. at 809. And

especially so, as the dissent acknowledges, post at 41, when the

agency has reduced the policy to writing, as it did in Venetian

Casino. In any event, we reviewed the policy at issue there

only because the agency was about to apply it to harm the

plaintiff, so the policy implicated none of the finality or

ripeness concerns associated with the shutdown decision here.

Agency plans. As explained above, agency plans generally

are not final because they contemplate “specific actions

implementing the plans.” Fund for Animals, 460 F.3d at 21.

But there are exceptions—some plans are made reviewable by

statute, see 5 U.S.C. § 704, and others are final because a

statute gives them some binding effect. The plaintiffs cite

cases involving such plans. See Marin Audubon Soc’y v. FAA,

121 F.4th 902, 906 (D.C. Cir. 2024) (plan made reviewable by

statute); Defs. of Wildlife v. Salazar, 651 F.3d 112, 113 (D.C.

Cir. 2011) (plan made binding by statute); Senior Res. v.

Jackson, 412 F.3d 112, 115 (D.C. Cir. 2005) (same). These

cases are inapposite, for no statute made the CFPB’s putative

shutdown decision binding or otherwise reviewable.

Program terminations. Finally, the plaintiffs point to

cases reviewing decisions to terminate agency programs—

most notably DHS v. Regents of the University of California,

591 U.S. 1 (2020), and Biden v. Texas. These cases prove that

such decisions can be final agency action. But neither one

suggests that the CFPB took final agency action here.

Regents involved Deferred Action for Childhood Arrivals

(DACA), “a program for conferring affirmative immigration

relief” on certain aliens unlawfully present in the United States.

591 U.S. at 18. DACA entitled qualifying aliens to apply for

38

deferred action—a status enabling the alien to remain in the

United States, to work here, and to receive government benefits

such as Social Security and Medicare. See id. at 10. Following

a change in presidential administrations, the Acting Secretary

of Homeland Security issued a written memorandum

rescinding DACA. See id. at 12–13. The government argued

that the memorandum was unreviewable because it was

committed to agency discretion by law; the government never

suggested that the memorandum, self-executing on its face and

formally published by an acting Cabinet Secretary, was not

final agency action. See id. at 17–19. Still, the Supreme Court

stressed that the memorandum “provide[d] a focus for judicial

review.” Id. at 18 (cleaned up).

Biden v. Texas involved the Migrant Protection Protocols,

which required certain aliens entering the country from Mexico

to be returned to Mexico pending resolution of their removal

proceedings. 597 U.S. at 791. Following a change in

presidential administrations, the Acting Secretary of Homeland

Security issued a self-executing, written memorandum

formally ending the program. See id. at 808 (“I am hereby

terminating MPP.”). The Supreme Court held that the

memorandum was final agency action because it “marked the

consummation of the agency’s decisionmaking process and

resulted in rights or obligations being determined.” Id.

(cleaned up). Specifically, the memorandum “bound DHS staff

by forbidding them to continue the program in any way

from that moment on.” Id. at 808–09 (cleaned up).

In short, reviewability in these cases did not turn on the

fact that program terminations were at issue; it turned on the

fact that the plaintiffs challenged final, written memoranda

with formal legal consequence. Moreover, the Court in Biden

v. Texas made clear that it was reviewing the formal memo

itself, not any “abstract” termination decision “wholly apart

39

from” that final rule. 597 U.S. at 809. Here, in contrast, the

plaintiffs seek to challenge an unrecorded decision that neither

binds agency staff nor restricts access to agency benefits.8

Discreteness precedents. The plaintiffs’ attempts to

distinguish National Wildlife and SUWA also fall flat. The

plaintiffs contend that the challengers in National Wildlife

sought to contest “thousands” of decisions, whereas they seek

to challenge only “a single plan to shut down the agency.” Red

Br. 35. But on the plaintiffs’ own account, that asserted plan

implicates hundreds of distinct contract and personnel

decisions. See, e.g., J.A. 648–49. And in any event, National

Wildlife held that an APA challenge may not bundle together

discrete actions in order to challenge them all together. See 497

U.S. at 890–94. Here, the plaintiffs equate all of the individual

“actions to suspend or terminate CFPB’s statutorily mandated

activities—including by issuing stop-work instructions,

cancelling contracts, declining and returning funding, firing

employees, and terminating the lease” with the “final agency

action”—in the singular—reviewable under the APA. J.A. 46–

47. As for SUWA, the plaintiffs contend it is inapplicable

because they seek to set aside an unlawful shutdown decision,

8

The dissent suggests that our analysis would permit the

government to terminate programs by “conceal[ing] … what it is

doing.” Post at 43; see also id. at 51 (positing action that “agencies

manage to obfuscate”). But programs afford benefits, which the

government could not rescind without some kind of public statement.

If the denial of some benefit were judicially reviewable while the

relevant program remained in effect, it would also be reviewable—

and would surely be set aside—if the government invoked a secret

termination decision as the basis for the denial. Moreover, if the

government sought to implement a secret termination by simply

refusing to provide benefits, or to act on applications for benefits,

courts could compel those actions under section 706(1), as we have

explained.

40

not to compel mandatory agency operations. But the same

analysis of “agency action” governs both suits to set aside

unlawful action under section 706(2) and suits to compel action

unlawfully withheld under section 706(1). See SUWA, 542

U.S. at 64–65. And despite the plaintiffs’ disclaimer, they

sought and obtained a preliminary injunction ordering all kinds

of agency actions that were not themselves legally required,

such as a prohibition on conducting any RIFs.

4

The dissent asks us to imagine that the Acting Director had

issued a “formal written memorandum” announcing the

termination of the CFPB. Post at 23. The dissent argues that,

because such a hypothetical memorandum would be

reviewable, the shutdown decision inferred here must also be

reviewable. See id. at 39–42.

One can easily imagine a shutdown memorandum that

would be reviewable. Suppose the Acting Director had issued

this edict: “The Bureau is shut down. Effective immediately,

Bureau employees may not perform any work.” This memo

would be a rule—that is, “an agency statement … designed to

implement, interpret, or prescribe law or policy.” 5 U.S.C.

§ 551(4). And it would be final, reflecting the Bureau’s firm

decision to take an action with tangible legal consequences,

namely refusing to provide services as required by Congress.

See Biden v. Texas, 597 U.S. at 808–09. In effect, the memo

would operate like a legislative rule eliminating services that

the agency was required to provide. And because the memo

would have tangible legal consequences, a court could

meaningfully set it aside, restoring the Bureau’s ability to

perform mandatory services and, in so doing, redressing the

injuries of individuals who use the agency services. In other

41

words, the reviewing court could undo the legal consequence

imposed by the memo.

But it hardly follows that the APA permits review of an

unrecorded rule—the existence of which the agency denies—

inferred from a collection of disparate agency actions. The

dissent cites no case in which any court reviewed a putative

rule that the agency denied having promulgated. And the very

notion of an unrecorded rule is almost oxymoronic. Agencies

promulgate rules to alter legal relationships, which is why rules

are often subject to pre-enforcement review. See, e.g., Abbott

Laboratories, 387 U.S. at 152. It is difficult to see how an

agency could accomplish that through a secret decision not

memorialized in any public statement, written or oral.

In any event, our analysis does not hinge on the absence of

a memorandum alone. Even if there were a memo, it would

not be reviewable unless it bound the agency. Suppose the

Acting Director wrote this: “I intend to shut down the Bureau.

Once the Bureau is shut down, it will have no employees and

will perform no tasks. Employees should begin preparing to

wind up the Bureau’s operations.” Suppose further that the

Acting Director, immediately after issuing the memo,

instructed employees to perform at least some of the Bureau’s

required work indefinitely. This memo would be a nonbinding

statement of something the agency intends to do in the future.

See Fund for Animals, 460 F.3d at 22. A court could not review

it, but only specific actions taken to implement it. See id.

The dissent posits that the Acting Director decided to shut

down the Bureau, and we do not contest this. But the dissent

does not explain how that decision bound the agency. It

acknowledges that the agency’s Chief Legal Officer, just three

weeks after the posited shutdown decision, instructed

employees to perform all legally required work. Post at 30–31.

42

Moreover, the Acting Director took action inconsistent with a

final shutdown decision just one day after the decision is

alleged to have occurred. See J.A. 286 (February 11 email to

an employee: “I am specifically directing you … to continue

indefinitely to perform all tasks necessary to publish the APOR

on weekly basis.”). So even if an inferred shutdown decision

could be equivalent to a rule, the decision here was not final—

in other words, conclusive and binding.

The dissent’s analysis also reflects a mismatch between

the final agency action inferred and the remedy provided. If

the Acting Director had promulgated a formal memorandum

instructing Bureau employees not to perform any work, the

memo would be final agency action, and the reviewing court

could set it aside and thereby nullify its legal consequences.

But the court could not, in reviewing such a memo, enjoin or

set aside other agency actions—such as a RIF announced

around the same time. Yet the dissent advocates just that

approach. Like the plaintiffs, the dissent contends that we

should set aside not only the putative shutdown decision, which

has no legal consequence except as implemented through other

decisions, but that we should enjoin the constellation of

discrete actions from which it infers the shutdown decision.

See post at 56–59. As we have shown, the APA does not allow

us to leverage our review from one discrete action to another.

* * * *

The plaintiffs seek to set aside an abstract decision,

inferred from a constellation of discrete actions, to

prophylactically ensure that the Bureau can fulfill its statutory

mandate. This theory contravenes all the APA limits discussed

above—agency action, finality, ripeness, and discreteness

alike. If the plaintiffs’ theory were viable, it would become the

task of the judiciary, rather than the Executive Branch, to

43

determine what resources an agency needs to perform its broad

statutory functions. Such pervasive judicial control of agency

administration falls well beyond limited APA review.

VI

With no express cause of action under the APA, the

plaintiffs must resort to equity.

A

To seek judicial review, a party ordinarily needs a

statutory cause of action expressly provided by Congress. But

sometimes, the Supreme Court has held, parties aggrieved by

federal agency action may seek equitable relief even without

an express statutory cause of action. See, e.g., Free Enter.

Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 491 n.2

(2010); Trudeau v. FTC, 456 F.3d 178, 190 (D.C. Cir. 2006).

The availability of such implied equitable relief substantially

depends on whether the plaintiff claims a statutory or

constitutional violation.

Implied equitable claims that a federal agency has violated

a federal statute, which we refer to as ultra vires claims, are

“extremely limited” in scope. Griffith v. FLRA, 842 F.2d 487,

493 (D.C. Cir. 1988). Confirming this point, the Supreme

Court recently described ultra vires challenges as “essentially

a Hail Mary pass—and in court as in football, the attempt rarely

succeeds.” NRC v. Texas, 145 S. Ct. 1762, 1776 (2025)

(quoting Nyunt, 589 F.3d at 449). To succeed on an ultra vires

claim, the plaintiff must show that (1) judicial review is not

expressly foreclosed; (2) the agency made an extreme legal

error; and (3) there is no alternative means for the plaintiff to

seek judicial review. See, e.g., Changji Esquel Textile Co. v.

Raimondo, 40 F.4th 716, 721–22 (D.C. Cir. 2022); DCH Reg’l

Med. Ctr. v. Azar, 925 F.3d 503, 509 (D.C. Cir. 2019). The

44

plaintiffs expressly disavow any such ultra vires claim. For

good reason: As explained above, aggrieved CFPB employees

may seek judicial review through the CSRA scheme, and

aggrieved consumers of CFPB services may seek review

through the APA cause of action for unreasonable delay.

Courts also have long recognized implied equitable claims

arising under the Constitution. See Trudeau, 456 F.3d at 190.

And although the Supreme Court has all but eliminated implied

damages actions for constitutional claims, see, e.g., Egbert v.

Boule, 596 U.S. 482 (2022), it has continued to recognize

implied equitable actions “directly under the Constitution,”

Free Enter. Fund, 561 U.S. at 491 n.2. For implied equitable

claims under the Constitution, we have imposed neither the

requirements for ultra vires review nor those for APA review.9

B

To avoid the requirements for an ultra vires claim, the

plaintiffs seek to describe their equitable claim here as a

constitutional one. The claim targets the defendants’ putative

decision to shut down the CFPB. As explained above, the

plaintiffs contend that a shutdown would violate statutes that

establish the Bureau and require it to perform various tasks.

9

We have described such implied claims as involving “a direct

cause of action under” the Constitution. Trudeau, 456 F.3d at 190;

see also Free Enter. Fund, 561 U.S. at 491 n.2 (“an implied private

right of action directly under the Constitution”). This terminology is

perhaps imperfect insofar as equity courts did not speak of “causes

of action” as such. See Bray & Miller, Getting into Equity, 97 Notre

Dame L. Rev. 1763, 1772–76 (2022). Regardless of historical labels,

the “cause of action” or “private right of action” terminology does

help distinguish between two critically different questions—whether

the defendant has violated some provision of substantive law and

whether an injured plaintiff may seek redress in court.

45

And because the Executive Branch cannot “amend statutes

unilaterally” or “usurp legislative authority conferred upon

Congress,” the plaintiffs say that a shutdown would also violate

the separation of powers. J.A. 44. Invoking Free Enterprise

Fund, the plaintiffs thus assert what they describe as a “cause

of action under the Constitution for the violation of the

separation of powers.” Red Br. 25.

In Dalton v. Specter, 511 U.S. 462 (1994), the Supreme

Court rejected a similar attempt to transform statutory claims

into constitutional ones. Dalton involved a presidential

decision to close the Philadelphia Naval Shipyard. Id. at 464.

Review through the APA was unavailable because the

President is not an “agency” for APA purposes. See id. at 469–

70. Nonetheless, following its decision in Franklin v.

Massachusetts, 505 U.S. 788 (1992), the Court assumed an

implied equitable action to review presidential decisions “for

constitutionality.” Dalton, 511 U.S. at 471–72. The plaintiffs

argued that the President’s decision to close the shipyard

violated various provisions in the governing statute. See id.

They further argued that these statutory violations had a

“constitutional aspect” because “whenever the President acts in

excess of his statutory authority, he also violates the

constitutional separation-of-powers doctrine.” Id. at 471.

Accordingly, they concluded, “judicial review must be

available to determine whether the President has statutory

authority for whatever action he takes.” Id. (cleaned up).

The Supreme Court rejected this argument. The Court

explained that it had “often distinguished between claims of

constitutional violations and claims that an official has acted in

excess of his statutory authority.” 511 U.S. at 472. And if “all

executive actions in excess of statutory authority were ipso

facto unconstitutional,” then these precedents would have had

“little need” for “specifying unconstitutional and ultra vires

46

conduct as separate categories.” Id. Moreover, “if every claim

alleging that the President exceeded his statutory authority

were considered a constitutional claim, the exception identified

in Franklin would be broadened beyond recognition.” Id. at

474. Yet the “distinction between claims that an official

exceeded his statutory authority, on the one hand, and claims

that he acted in violation of the Constitution, on the other, is

too well established to permit this sort of evisceration.” Id. For

these reasons, the Court held that “claims simply alleging that

the President has exceeded his statutory authority are not

‘constitutional’ claims” freely reviewable in equity. Id. at 473.

Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320

(2015), reinforces this analysis. That case presented the

question whether healthcare providers have an implied

equitable action for statutory violations in state Medicaid plans.

Id. at 324. The providers argued that their claims were

constitutional because any state violation of a federal statute

would also violate the Supremacy Clause of the Constitution,

which makes federal law supreme over state law. See U.S.

Const. Art. VI, cl. 2; 575 U.S. at 324. The Supreme Court

refused to treat the claim as a constitutional one giving rise to

an unrestricted equitable action. See id. at 324–27. Instead, it

treated the claim as statutory—and applied ordinary canons of

construction to conclude that Congress had foreclosed

equitable relief. See id. at 327–29. In other words, statutory

claims do not become constitutional ones by operation of the

separation-of-powers principles that prevent the States and the

Executive Branch from disregarding federal statutes.

Those principles control this case. The assertedly

constitutional claim here begins with the premise that shutting

down the CFPB would violate the statutes that create the

agency and require it to perform various mandatory tasks.

Because CFPB leadership decided to violate these statutes, the

47

argument goes, it “also violate[d] the constitutional separation-

of-powers doctrine.” Dalton, 511 U.S. at 471. This supposed

separation-of-powers violation turns entirely on whether CFPB

officials violated the governing statutes, so Dalton requires us

to analyze the claim as an ultra vires one. See id. at 472–74.10

C

The plaintiffs offer three responses to this straightforward

conclusion, but none is persuasive.

First, they contend that Dalton rested on a conclusion that

the statute at issue there committed base-closure decisions to

the discretion of the President, whereas no statute here

authorizes executive officials to shut down the CFPB. That

argument confuses two distinct rulings in Dalton. After

holding that constitutional review was unavailable because the

claims at issue were not constitutional, the Court then

separately considered whether ultra vires review was available.

As it did for the alleged constitutional claims, the Court

“assume[d] for the sake of argument that some claims that the

President has violated a statutory mandate are judicially

reviewable outside the framework of the APA.” 511 U.S. at

474. But, the Court explained, such ultra vires review “is not

available when the statute in question commits the decision to

the discretion of the President.” Id. Then, the Court concluded

that the statute at issue did not “limit the President’s

discretion,” which foreclosed ultra vires review. See id. at 476.

None of this reasoning narrowed the Court’s prior conclusion

that implied equitable review for constitutional claims is

10

In Global Health Council v. Trump, --- F.4th ---, No. 25-5097

(D.C. Cir. Aug. 13, 2025), this Court applied Dalton to hold that an

asserted separation-of-powers claim is statutory rather than

constitutional for reviewability purposes. See id. at __ (slip op. at

16–24). Our analysis is fully consistent with Global Health Council.

48

unavailable where the plaintiff argues that statutory violations

by executive officials implicate the separation of powers. See

id. at 472–74.

Second, the plaintiffs invoke the Supreme Court’s

statement in Free Enterprise Fund that the Constitution creates

an “implied private right of action” for “separation-of-powers

claim[s]” as well as for individual-rights claims. See 561 U.S.

at 491 n.2. But the separation-of-powers claim vindicated in

Free Enterprise Fund was that Article II of the Constitution

prohibits Congress from insulating executive officers from

presidential control through two levels of for-cause removal

protection. See id. at 514. And since Free Enterprise Fund,

cases engaging in implied equitable review for separation-of-

powers claims have likewise involved claims that statutes

themselves violate Article II or other structural constitutional

provisions. See, e.g., Axon, 598 U.S. at 180; Collins v. Yellen,

594 U.S. 220, 227–28 (2021). None of these cases casts doubt

on Dalton’s holding that claims alleging nothing more than

executive actions in contravention of statutes give rise to ultra

vires claims but not implied constitutional claims.

Finally, the plaintiffs invoke Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579 (1952), which held that neither the

Vesting Clause nor the Commander-in-Chief Clause of Article

II authorized the President to seize the nation’s steel mills. See

id. at 585–89; U.S. Const. Art. II, § 1, cl. 1 & § 2, cl. 1. The

dispute in Youngstown was entirely constitutional. As the

Supreme Court explained in Dalton, the government had

“disclaimed any statutory authority for the President’s seizure

of steel mills” in Youngstown, so the case “necessarily turned

on whether the Constitution authorized the President’s actions”

through a freestanding Article II power. 511 U.S. at 473 (citing

Youngstown, 343 U.S. at 585–87). This case is the opposite:

The Executive has invoked no such freestanding Article II

49

power. Instead, the only constitutional source of executive

authority in this case is the President’s obligation to take care

that the statutes governing the CFPB are faithfully executed.

See U.S. Const. Art. II, § 3. And as Dalton made clear, a claim

that executive officials have not discharged such a

responsibility under the Take Care Clause gives rise at most to

an ultra vires claim. See 511 U.S. at 472–74.11

VII

Some of the plaintiffs cannot establish jurisdiction, and the

others have no viable cause of action. The plaintiffs’ claims

therefore fail as a matter of law. We vacate the preliminary

injunction and remand the case for further proceedings

consistent with this opinion.

So ordered.

11

The dissent worries that a test characterizing claims

according to the authority invoked by the government would

empower it to avoid judicial review. Post at 54–55. But the question

is not whether the government may avoid judicial review; it is rather

whether plaintiffs must comply with statutory limits on APA review

or judge-made limits on ultra vires review. As we have shown,

Dalton holds that plaintiffs may not plead around those limits simply

by contending that the Executive Branch violates the Constitution by

acting in violation of a statute. See 511 U.S. at 472–74. As for the

dissent’s further hypothetical about a President nationalizing steel

mills yet denying it in litigation, post at 54, we repeat a point made

earlier: It is difficult to imagine a form of executive action

sufficiently public and conclusive to inflict immediate injuries but

not sufficiently public and conclusive to support judicial review,

through the APA or otherwise.

PILLARD, Circuit Judge, dissenting: Congress created the

Consumer Financial Protection Bureau to safeguard consumers

and the broader financial system after the unprecedented chaos

and hardship of the 2008 financial crisis and the ensuing Great

Recession. Congress gave the Bureau rulemaking,

enforcement, and direct-service duties and authorities befitting

its mission. The Bureau’s statutory mandates, like those of

other agencies, allow presidential administrations to exercise

significant discretion in adjusting agency priorities to account

for changing conditions and the vision and mandate of the

serving President. The exercise of that prerogative is subject

to the ordinary judicial review that prevents final agency action

that is arbitrary, capricious, or in violation of a statutory

command or constitutional right. The President’s chosen

CFPB leadership may—within those constraints—run the

Bureau as it determines best serves the public interest. But it

is emphatically not within the discretion of the President or his

appointees to decide that the country would benefit most if

there were no Bureau at all. Congress made the contrary

decision in legislation establishing the CFPB, and the power to

repeal that law lies with the legislative branch.

The district court found that Defendants acted to

unilaterally abolish the CFPB, apparently viewing its

continued existence to be inconsistent with President Trump’s

vision for the federal government. The court therefore

appropriately entered a preliminary injunction to preserve the

status quo ante and prevent the destruction of the Bureau

before the lawfulness of that action could be adjudicated.

Neither the government nor the majority seriously disputes

that, if we accept the district court’s findings of fact,

Defendants’ actions violated both the CFPB’s organic statute

and the constitutional separation of powers. The majority

appropriately rejects the government’s arguments that

Plaintiffs lack standing to challenge the destruction of the

CFPB, and that we otherwise lack jurisdiction to hear their

2

claims. And the majority does not—and could not on the

record before us—conclude that the district court’s factual

findings setting out Defendants’ actions at the time this suit was

filed were clearly erroneous. The district court’s power to act

when it did to preliminarily enjoin Defendants’ unlawful action

should be apparent and uncontroversial.

My colleagues nonetheless vacate the preliminary

injunction because they deem the decision to unilaterally

abolish the CFPB not a type of agency action we are authorized

to review. That constricted view of our statutory and equitable

power contravenes statutes, precedent, and basic principles of

our constitutional government. Congress created the CFPB,

assigned it important missions and powers, and subjected its

decisions to the strong presumption of judicial review that

applies as a matter of course to the final actions of federal

agencies. It is untenable to hold that same Congress meant the

agency’s continued existence to be a matter of unilateral and

unexplained presidential edict.

The notion that courts are powerless to prevent the

President from abolishing the agencies of the federal

government that he was elected to lead cannot be reconciled

with either the constitutional separation of powers or our

nation’s commitment to a government of laws. I respectfully

dissent from the decision vacating the district court’s amply

supported preliminary injunction.

I.

A.

Following the 2008 financial crisis, Congress enacted the

Consumer Financial Protection Act of 2010 (CFPA, or Act) as

part of the broader Dodd–Frank Wall Street Reform and

Consumer Protection Act to overhaul supervision of the

3

financial industry. Pub. L. No. 111-203, 124 Stat. 1955 (2010)

(codified at 12 U.S.C. § 5481 et seq.). After holding more than

50 hearings to inform its development of an effective

legislative response, Congress decided to consolidate authority

to enforce 18 preexisting, separate consumer protection statutes

in a single agency. CFPB v. Cmty. Fin. Servs. Ass’n, 601 U.S.

416, 421-22 (2024); see Members of Congress Amicus Br. 20-

22. The Act therefore created the Consumer Financial

Protection Bureau (CFPB or the Bureau), “which shall regulate

the offering and provision of consumer financial products or

services under the Federal consumer financial laws.” 12

U.S.C. § 5491(a).

Congress determined that the new agency, with existing

regulatory tools under common leadership, was essential to

safeguard consumers’ financial interests and the stability of the

financial system. Congress gave the CFPB responsibility to

combat misleading and fraudulent consumer financial

products. It sought to ensure that the true costs to consumers

of what are often their most expensive and consequential

investments are clearly and accurately communicated in

advance. And Congress understood that sound regulation,

reliably enforced, is also essential to a level playing field

among competitors. Without it, transparent and fair financial

services cannot survive a race to the bottom led by

unscrupulous competitors with inferior products. See

Members of Congress Amicus Br. 20-24.

It has thus been the CFPB’s duty since 2010 to encourage

compliance with and enforce violations of existing statutes,

including the Truth in Lending Act, 12 U.S.C. § 4308(a)(1), the

Equal Credit Opportunity Act, 15 U.S.C. § 1691c(a)(9), the

Home Mortgage Disclosure Act, 12 U.S.C. § 2808(a), and

others. The financial services Congress tasked the CFPB to

regulate include credit and debit cards, Compl. ¶ 25 (J.A. 28),

4

student loans, Barnard Decl. ¶ 5 (J.A. 184), automobile loans,

Shearer Decl. ¶ 20 (J.A. 164), home mortgages, see 12 U.S.C.

§ 5581(b)(7), home equity loans, see 12 C.F.R. § 1026.40,

payday lenders, see 12 U.S.C. § 5514(a)(1)(E), debt collectors,

Meyer Decl. ¶ 6 (J.A. 62), payment apps like PayPal and

Venmo, see Defining Larger Participants of a Market for

General-Use Digital Consumer Payment Applications, 89 Fed.

Reg. 99582 (Dec. 10, 2024), and consumer credit reporting

services, Meyer Decl. ¶ 5 (J.A. 62).

Congress also gave the Bureau some new enforcement

tools. See Former CFPB Officials Amicus Br. 6-7. For

example, the Bureau elicits reports from and conducts

examinations of non-depository institutions, entities like

mortgage companies or payday lenders that are not banks but

still offer consumer financial products. 12 § U.S.C. 5514(b).

The Bureau has exclusive authority to supervise very large

banks with more than $10 billion in assets—whose

malfeasance poses unique risks to the broader economy—for

compliance with federal consumer-protection laws. Id. §

5515(a)-(b). That supervisory power, which preempts similar

efforts by state regulators, enables the Bureau to identify in

advance and communicate to regulated entities new

“consumer-protection issues before they become systemic or

cause significant harm” and informs future enforcement

actions against violators. States Amicus Br. 6-7, 24; see also

Former CFPB Officials Amicus Br. 7; Members of Congress

Amicus Br. 24-25.

The Bureau’s enforcement activities, including its

coordination of other regulatory bodies, are the “linchpin” of

Congress’s chosen financial oversight regime. Nonprofit Orgs

Amicus Br. 15; see Halperin Decl. ¶ 5 (J.A. 198). They reach

both “banks and ‘non-banks’ such as payday lenders, auto title

lenders, debt collectors, digital payment platforms, and

5

consumer reporting agencies,” ensuring that even companies

not subject to the CFPB’s direct supervisory authority comply

with federal consumer protection laws. Halperin Decl. ¶ 4 (J.A.

198). The CFPB’s responsibility for supervising and

conducting examinations of financial institutions entails

assessing their financial health, risk management policies and

practices, and compliance with applicable laws. CFPB

supervision heads off financial problems like the 2008 financial

crisis before they occur by enabling the Bureau to “flag

problematic industry trends” and share its findings with

regulated parties “to guide compliance and promote

consistency and predictability.” Nonprofit Orgs. Amicus Br.

11-12. The CFPB also has regulatory authority to set common

ground rules for the industry. Its guidance on loan origination

and servicing, for example, now shapes daily practice in the

mortgage industry, after “th[at] sector . . . nearly sank the

world economy during the Great Recession.” Nonprofit Orgs

Amicus Br. 12-13.

The CFPB’s work since 2010 has curbed fraudulent and

misleading practices, including illegal junk fees, deceptive

credit card charges, and the unlawful seizure of consumers’

personal vehicles. Salas Decl. ¶ 3 (J.A. 192); Shearer Decl.

¶¶ 18, 20 (J.A. 163-64). More generally, the Bureau’s work

has served to deter regulated entities—particularly the largest

financial institutions who are largely exempt from state

financial regulations—from engaging in unlawful,

destabilizing, and consumer-harming behavior. See States

Amicus Br. 24-25. “Before the creation of the CFPB,

consumer financial protection had not been the primary focus

of any federal agency.” Halperin Decl. ¶ 3 (J.A. 197). The

2008 financial crisis provided a stark reminder of the risks of

such a regime. Without the work of “the one agency whose job

is to protect all American consumers,” Americans will

6

inevitably face a “higher risk of losing their homes, their cars,

and their savings.” Salas Decl. ¶ 11 (J.A. 196).

Congress made extensive provision for the CFPB to carry

out its mission. The Act required the creation of several

identified divisions and the performance of discrete functions,

including enforcement, supervision, and adjudicatory

functions. See 12 U.S.C. §§ 5515, 5562-63. The Bureau is also

required to research congressionally identified topics, id. §

5493(b)(1), maintain and staff a telephone number and website

to receive and respond to consumer complaints, id. §

5493(b)(3), maintain and staff offices dedicated to financial

education and the protection of service members, traditionally

underserved consumers, older Americans, and student loan

borrowers, id. §§ 5493(d)(1), (e)(1), (b)(2), (g)(1); id. § 5535,

and carry out other statutorily specified functions conducive to

its core mission. See Former CFPB Officials Amicus Br. 7-9.

The CFPB has continued to carry out its obligations across

multiple presidential administrations despite the regulated

sector’s significant political and legal challenges to the Bureau

since its creation. In Seila Law LLC v. CFPB, 591 U.S. 197

(2020), the Supreme Court determined that the Act’s removal

protections for the CFPB Director violated the constitutional

separation of powers. Id. at 213, 220. When the Court severed

those protections from the rest of the statute, however, it held

that the Act’s provisions “bearing on the CFPB’s structure and

duties remain fully operative.” Id. at 235 (plurality opinion);

see also id. at 296-97 (Kagan, J., concurring in part and

dissenting in part). The CFPB’s unusual funding system,

which empowers the Bureau’s director to request funds directly

from the Federal Reserve System rather than proceeding

through the normal appropriations process, 12 U.S.C.

§ 5497(a), also drew legal challenge, but the Supreme Court

7

upheld Congress’s chosen method to fund the Bureau. Cmty.

Fin. Servs. Ass’n, 601 U.S. at 424.

Until the events of this case, however, there has never been

any suggestion that Congress’s directives in establishing the

CFPB were somehow optional or lacking full operative effect.

During the first Trump administration, for example, Acting

CFPB Director Mick Mulvaney critiqued the Bureau’s funding

mechanism as “den[ying] the American people their rightful

control over how the Bureau spends their money.” Letter from

Mick Mulvaney, Acting Dir., CFPB, to the Hon. Jerome

Powell, Chair, Bd. of Governors of the Fed. Rsrv. Sys. (Mar.

23, 2018), https://perma.cc/D62E-JE6M. But, even before the

Court sustained that funding mechanism, Acting Director

Mulvaney recognized his obligation “to execute the law as

written,” and accordingly requested agency funding from the

Federal Reserve. Id. What happened here represents a sea

change.

B.

Virtually all the facts relevant to this appeal are

undisputed. The district court’s opinion clearly sets forth the

court’s findings of fact and amply supports them by reference

to the record. See NTEU v. Vought, 774 F. Supp. 3d 1, 16-39

(D.D.C. 2025). Those findings more than adequately justify

the district court’s entry of a preliminary injunction to preserve

the possibility of relief if Plaintiffs ultimately prevail. I briefly

recount here the key facts.

Starting on February 6, officials at the Department of

Treasury directed the Bureau to allow officials from the United

States Department of Government Efficiency (DOGE) access

to CFPB headquarters. Id. at 40. The next day, February 7,

President Trump designated Office of Management and Budget

Director Russell Vought as acting director of the Bureau.

8

Under the new leadership, the CFPB’s homepage was taken

offline, Third Meyer Decl. ¶¶ 19-21 (J.A. 172-73), and Elon

Musk—whom President Trump described as “head[ing]

DOGE” 1—posted “CFPB RIP” alongside a tombstone emoji

on his personal X account, Am. Compl. ¶ 39 (J.A. 33).

The next day, OMB Director Vought instructed CFPB

staff not to approve any rules or guidance, take enforcement

actions, issue public communications, or take certain other

actions “unless . . . required by law.” Feb. 8 Vought Email

(J.A. 117). That email echoed language from an earlier

message to Bureau staff from then-Acting Director (and

Treasury Secretary) Scott Bessent. See Feb. 3 Bessent Email

(J.A. 110). Vought followed that missive with a directive to all

Bureau Employees on the morning of Monday, February 10,

categorically ordering them to “not perform any work tasks”

without securing written approval from him through the

Bureau’s new Chief Legal Officer, Mark Paoletta. Feb. 10

Vought Email (Stop Work Order) (J.A. 101). Unlike previous

communications, the Stop Work Order referenced no exception

for performing statutorily required work. It was soon followed

by the announcement of a public tip line encouraging members

of the public to report CFPB employees who might be

attempting to do their jobs “in violation” of the Stop Work

Order. Frotman Decl. ¶¶ 5-6 (J.A. 204-05).

On the heels of the Bureau-wide Stop Work Order,

President Trump triumphantly told a reporter that “we did the

right thing” because the Bureau “was a very important thing to

get rid of,” and he “praised his administration for shutting

[down] the CFPB.” Compl. ¶ 47 (J.A. 36). In contrast to the

typical process of re-prioritization during a transition from one

1

Megan Lebowitz, Lawyer Submits ‘New Evidence’ in Case against

DOGE, Using Trump’s Own Words, NBC (Mar. 5, 2025),

https://perma.cc/24DA-TX5R.

9

administration to the next, Shearer Decl. ¶¶ 6-7 (J.A. 157),

Bureau leadership began to execute its shut-down policy by

indiscriminately ceasing and unwinding ongoing work. They

directed staff to terminate hard-fought litigation midstream:

The cases dismissed by the CFPB sought relief on

behalf of students who were subject to illegal

collections on loans that had been discharged in

bankruptcy; borrowers who were deceived about the

true cost of loans made on a peer-to-peer nonbank

lending platform; people shopping for a mortgage

loan that were victims of an illegal scheme to steer

them to a specific lender; manufactured home buyers

who were set up to fail with unaffordable loans;

struggling customers of small dollar loans who were

induced into a fee-harvesting and loan-churning

scheme; and consumers who were deceived about

their personal savings accounts. The CFPB’s

complaints had alleged that consumers in these cases

experienced billions of dollars of harm.

Halperin Decl. ¶ 16 (J.A. 201). Bureau leadership halted

impending examinations at mortgage lenders, auto finance

companies, debt collection agencies, and other consumer-

facing industries that the Bureau was undertaking in

cooperation with state regulators. Salas Decl. ¶ 9 (J.A. 195).

Only a trickle of public-facing activities resumed after Paoletta

instructed staff to at least partially restart them—a step he took

in response to advice that keeping them offline risked a public

backlash. See Mar. 10 Hearing Tr. 89:2-6, 192:21-25 (J.A.

988, 1091).

With the Bureau’s work effectively shuttered, Defendants

then took steps to permanently unwind the agency. During the

week that started with the Stop Work Order on Monday,

10

Defendants fired all the Bureau’s probationary and term

employees. Drew Doe Decl. ¶ 5 (J.A. 135). That Tuesday, the

Bureau’s Chief Financial Officer directed staff to inform

leadership of any “contracts directly support[ing] a statutory

requirement, meaning that [the Bureau] would not be able to

meet a statutory requirement without this contract.” Ex. F (J.A.

416-17). But that exercise was pointless. Rather than conduct

any discernably rational assessment of which contracts were

necessary for the Bureau to continue to do the work Congress

assigned it, Paoletta simply terminated all contracts across five

separate divisions of the Bureau—a mere six hours after

supposedly expressing an interest in knowing which contracts

had to be preserved. Feb. 11 Paoletta Email (J.A. 288). The

terminated contracts included, for example, every contract in

the Office of Consumer Response, even though that Office had

responded to leadership’s earlier request and singled out some

of those contracts as necessary for statutorily required work.

Ex. F (J.A. 417); Pfaff Decl. ¶ 27 (J.A. 148). Bureau leadership

directed contracting officers to terminate the chosen contracts

less than an hour after Paoletta’s order. Feb. 11 Galicki Email

(J.A. 407). Presumably because of Defendants’ urgency to

eliminate those necessary contracts as soon as possible, the

termination letters included no directions to contractors to

preserve Bureau data or records they held on behalf of the

Bureau. Mar. 10 Hearing Tr. 174:6-10 (J.A. 1073). As a result,

critical systems were turned off before the CFPB’s employees

or contractors could secure the agency’s data, raising the risk

that some of the data loss may have been irrecoverable. Drew

Doe Decl. ¶ 6 (J.A. 135).

Having eliminated the Bureau’s contracts and

probationary and term employees, Defendants moved on by

Wednesday to shed the CFPB’s permanent staff. On the

evening of February 12, the Bureau agreed to pay OPM for

“restructuring assistance services” related to a planned

11

Reduction in Force (RIF). Ex. II (J.A. 572-73). Federal

regulations ordinarily require agencies to give employees who

will be subjected to a RIF 90 days’ advance notice to enable

those employees to compete for other positions. See 5 C.F.R.

§ 351.402(c). However, on Thursday CFPB Chief Operating

Officer Adam Martinez asked OPM for an exception to the 90-

day rule, explaining that the RIF was being done in immediate

response to the Stop Work Order. Feb. 13 RIF Request (J.A.

578-80). OPM approved the request, and Defendants began

preparing the paperwork to fire about 1200 employees with the

bare minimum 30-day notice, leaving the Bureau with less than

a fifth of its original headcount, and to place the employees on

administrative leave in the interim. Feb. 13 RIF Request (J.A.

578-80); Feb. 14 Martinez Administrative Leave Email (J.A.

582); see Mar. 11 Hearing Tr. 45:9-18 (J.A. 1219). Martinez

explained to staff that the regulation’s 90-day period, designed

to give employees subject to RIFs the opportunity to compete

for remaining positions, was unnecessary because the Bureau’s

elimination would leave no remaining positions. Mar. 11

Hearing Tr. 59:14-22 (J.A. 1233). Defendants planned for the

RIF of the vast majority of the Bureau’s staff to take place by

the end of the day on Friday February 14, one week after

Vought was named Acting Director. Feb. 14 Martinez

Administrative Leave Email (J.A. 582). Those plans were

disrupted by this litigation.

C.

Plaintiffs, a group of nonprofits that benefit from the

CFPB’s work together with organizations that represent the

Bureau’s employees, filed suit on February 9. On February 13,

Plaintiffs filed an amended complaint and moved for a

temporary restraining order. On February 14, the district court

scheduled a hearing on the TRO motion for that afternoon.

Martinez and the others working on the ongoing RIF planning

12

were soon informed of the scheduled hearing. Ex. LL (J.A.

584).

Impending court proceedings gave Defendants no pause;

they responded by doubling down. Less than 10 minutes after

Martinez received an email alerting him to the scheduled

federal court hearing—and a mere 16 minutes before the

hearing was scheduled to begin—the Bureau told OPM that it

could no longer “wait until COB” and instead “need[ed] the

last set of [RIF materials] now.” Ex. MM (J.A. 586). The

Bureau’s leadership and OPM continued to send emails back

and forth for the next few hours, with OPM confirming that the

RIF was necessary to implement the Stop Work Order, and

Martinez explaining that the remaining Bureau employees

(including himself) would be terminated “in the next group” by

an ensuing RIF. Feb. 14 Martinez RIF Email (J.A. 539).

Defendants were unable to finalize the RIF before the

district court acted. On the afternoon of Friday, February 14,

the court entered a partial stay by consent order. The stay order

prohibited Defendants from deleting CFPB data, terminating

additional CFPB employees (except for cause), or transferring

away the Bureau’s funds. Consent Order (J.A. 99-100). The

initial stay order was supplemented by an agreement between

the parties to freeze any additional contract terminations

pending the district court’s ruling on a preliminary injunction.

See Joint Notice of Agreement, ECF No. 65. 2

The RIF team at the CFPB continued to meet during the

following week, with Martinez informing colleagues that the

RIF would resume and the agency would completely shut down

after the court order was lifted. Mar. 11 Hearing Tr. 56-59 (J.A.

1230-33). Senior Bureau executives told staff that all CFPB

2

All citations to ECF Numbers are to National Treasury Employees

Union v. Vought, No. 25-cv-00381.

13

offices would close and that all data storage and compliance

activities would cease to be necessary. Drew Doe Decl. ¶¶ 7-8

(J.A. 136). Meanwhile, the Stop Work Order remained in

effect and the Bureau’s congressionally assigned functions

halted. The agency drifted along in that state of limbo until

early March.

The district court scheduled oral argument on the

preliminary injunction motion for March 3. On the afternoon

before the scheduled argument, Paoletta sent a message to all

Bureau staff stating “[i]t has come to my attention . . . that

some employees have not been performing statutorily required

work” since the Stop Work Order. Mar. 2 Paoletta Email (J.A.

338). Paoletta informed staff that “work that is required by

law” could proceed without prior approval from Bureau

leadership—although he gave no instruction on which work

was and was not “required by law.” Over the next few days,

Paoletta authorized some requests from staff to resume

functions that had been halted by the Stop Work Order. See

Mar. 2 Paoletta/Warren Emails (J.A. 341-44); Mar. 2

Paoletta/Johnson Emails (J.A. 347); Mar. 3 Correal Email (J.A.

351); Mar. 3 Martinez/Lee Emails (J.A. 374-77); Mar. 3

Paoletta/Pappalardo Emails (J.A. 390-91).

The White House appears not to have understood the

newfound importance of demonstrating a commitment to the

Bureau’s statutory work. The White House website soon

celebrated that the CFPB had been “ordered . . . to halt

operations.” Vought, 774 F. Supp. 3d at 47. And, given the

lack of direction, staff remained confused as to what work, if

any, they were authorized to perform. See Mar. 10 Hearing Tr.

105:12-16, 109:13-21 (J.A. 1004, 1008).

On March 10-11, the district court held a two-day

evidentiary hearing on the motion for a preliminary injunction,

14

at which Martinez testified as Defendants’ primary witness.

Before the hearing, Martinez submitted a declaration stating

that, notwithstanding the Stop Work Order, the Bureau was

continuing to fulfill its statutory obligations, and that the

CFPB’s leadership was “engaging in ongoing decision-making

to assess how to make the Bureau more efficient and

accountable.” First Martinez Decl. ¶¶ 19-23 (J.A. 106-07). But

once Plaintiffs submitted evidence showing that Defendants’

actions had in fact prevented the Bureau from performing its

required activities, and that Martinez himself had told staff that

the CFPB was shutting down, Martinez revised his position.

In a supplemental declaration, Martinez conceded that

claims from Bureau employees that Martinez had said the

agency was closing entirely were “not inaccurate,” and in fact

aligned with DOGE directives that Martinez understood “to

reflect the position of agency leadership.” Supp. Martinez

Decl. ¶ 3 (J.A. 240). However, Martinez continued, “since

then . . . a great deal has evolved at the CFPB,” and the current

leadership—admittedly, the same people as before—was now

“focused on running a substantially more streamlined and

efficient [B]ureau,” having moved on from the “very fluid

situation” around February 10. Id. ¶ 4 (J.A. 241).

At the hearing, Martinez testified to similar effect. He

confirmed what he averred in his supplemental declaration:

Based on communications from DOGE staff operating with

authorization of agency leadership, he had understood as of the

week of February 10 that the CFPB was being closed down and

that his statements to the contrary in his first declaration were

inaccurate. Mar. 10 Hearing Tr. 54-55, 126-28 (J.A. 953-54,

1025-27). He also testified that Defendants had been in the

process of eliminating entire statutorily required divisions of

the CFPB before the district court intervened. Mar. 10 Hearing

Tr. 130-31 (J.A. 1029-30). But, Martinez added,

15

“circumstances [had] changed since the week of February 10,”

and Vought did not currently intend to implement the plans that

were being carried out during the week of February 10. Mar.

10 Hearing Tr. 56, 61:6-8 (J.A. 955, 960).

Then, on cross-examination, Martinez backtracked again.

He conceded that neither Vought, Paoletta, nor anyone else had

told him that the plan had changed at any time since the

announcement that the Bureau was to be abolished. Mar. 10

Hearing Tr. 158, 229-230 (J.A. 1057, 1128-29). He

acknowledged that he did not know the current plans for the

CFPB. Mar. 11 Hearing Tr. 24-25 (J.A. 1198-99).

Martinez further testified that, until the eve of the March 3

district court argument when Vought sent out his email telling

staff that they had apparently been free to do statutorily

required work all along, Bureau employees had not been

performing required activities since the Stop Work Order. See

Mar. 10 Hearing Tr. 66:10-16 (J.A. 965). Martinez conceded

that statements in his first declaration—that the Bureau had in

fact been performing obligatory functions despite the Stop

Work Order—were false. See Mar. 10 Hearing Tr. 187-88

(J.A. 1086-87). He further admitted he would “not [be]

surprise[d]” if staff remained sidelined even after Vought’s

supposedly clarifying email, and that he did not know how

many staff had been brought back from administrative leave

following Defendants’ newly professed commitment to the

Bureau’s resumption of statutorily required work. Mar. 10

Hearing Tr. 67-68 (J.A. 966-67). Martinez also acknowledged

that, without any apparent forethought or assessment,

Defendants had cancelled scores of contracts necessary to the

Bureau’s work. See Mar. 10 Hearing Tr. 70-71 (J.A. 969-70).

Plaintiffs presented two witnesses at the hearing. The first,

a pseudonymous CFPB employee listed in the record as Alex

16

Doe, testified that on the week of February 10 Martinez and

DOGE staffers, relaying instructions from Defendants,

explained that the Bureau was in the process of being

eliminated, Mar. 11 Hearing Tr. 39-40 (J.A. 1213-14), and that

all staff would be subjected to RIFs across multiple divisions

with no employees to be retained, Mar. 11 Hearing Tr. 43 (J.A.

1217). Doe further testified that Martinez said that the plan

remained unchanged after the week of February 10. Mar. 11

Hearing Tr. 59-60, 63-64 (J.A. 1233-34, 1237-38). The second

witness, Matthew Pfaff, Chief of Staff at the Bureau’s Office

of Consumer Response, testified that his office had been unable

to respond to consumer complaints or referrals because of the

Stop Work Order and Defendants’ cancellation of contracts,

including contracts that employees had told Defendants were

necessary to perform statutorily required work. Mar. 11

Hearing Tr. 76-79 (J.A. 1250-53).

Following the evidentiary hearing, the district court

granted the preliminary injunction. The court held that

Plaintiffs had a cause of action under the Constitution to

challenge the alleged termination of the Bureau on separation-

of-powers grounds, and that they could challenge both the Stop

Work Order and the action shuttering the CFPB under the

APA. The court also determined that the plaintiff nonprofit

organizations had standing because they and their members

would be harmed by the shutdown of the Bureau, and that harm

could be redressed by a court order preventing Defendants

from abolishing the agency. Vought, 774 F. Supp. 3d at 49-53.

On the merits, the court rejected Defendants’ “attempts to

deny what was afoot” as “at odds with the undisputed facts in

the record and the documents produced by both sides.” Id. at

47. The court found that Defendants’ attempts to demonstrate

that the Bureau was carrying out its required work were “highly

misleading, if not intentionally false,” and “ha[d] been shown

17

to be unreliable and inconsistent with the agency’s own

contemporaneous records.” Id. at 57. The court emphasized

that Defendants’ efforts to characterize the Stop Work Order,

in defiance of the record, as “not really a stop work order at all”

were “so disingenuous that the [c]ourt is left with little

confidence that [Defendants] can be trusted to tell the truth

about anything.” Id.

The court concluded by finding that Defendants “were in

fact engaged in a concerted, expedited effort to shut the agency

down entirely when the motion for injunctive relief was filed;

while the effort to do so was stalled by the [c]ourt's

intervention, the plan remains unchanged; and [Defendants]

have absolutely no intention of operating the CFPB at all.” Id.

at 57-58.

On that basis, the court held that Plaintiffs were likely to

succeed on the merits of their claim that Defendants had

unlawfully ordered the shuttering of the Bureau. Id. Plaintiffs

had shown irreparable harm, the court found, because

Defendants would finish eliminating the agency in short order

in the absence of a preliminary injunction forbidding it. The

balance of equities and the public interest also favored an

injunction. The public interest would be served by preventing

Defendants from “overstep[ping] their statutory and

constitutional authority and usurp[ing] the power of the

members of Congress.” Id. at 82. And the public interest

would be served by preventing the massive disruption of the

financial sector that would occur if the CFPB were shut down.

Id. at 82-84.

The preliminary injunction directed Defendants to: 1)

maintain and not delete Bureau records and data, 2) reinstate

the probationary and term employees who had been fired, 3)

not terminate or subject to a RIF any additional CFPB

18

employee, except for cause, 4) not enforce the Stop Work

Order, 5) provide Bureau employees with the means to work

in-office or remotely, 6) maintain the Office of Consumer

Response’s consumer complaint system, and 7) rescind notices

of contract termination and not finalize the termination of any

future contract (although Defendants were permitted to halt

contracts following an individualized assessment that they

were unnecessary). Preliminary Injunction Order at 1-3 (J.A.

745-47).

Defendants appealed to this court and sought to stay the

preliminary injunction pending appeal. In seeking a stay,

Defendants did not meaningfully contest the propriety of an

injunction preventing them from unlawfully abolishing the

CFPB; they argued only that portions of the preliminary

injunction were overbroad in ways that impermissibly

restricted their management discretion. See Stay Mot. Oral

Arg. Tr. 6-7. We responded by partially staying the

preliminary injunction to afford legitimate managerial leeway.

The stay order permitted Defendants to refrain from reinstating

terminated employees whom they had determined were

unnecessary to fulfilling the Bureau’s statutory duties, to

conduct further terminations or RIFs of employees who had

been determined to be similarly unnecessary, and to conduct

limited work stoppages of activities that Defendants had

determined were not necessary for the Bureau’s legal

obligations. NTEU v. Vought, No. 25-5091, 2025 WL 1721068

(D.C. Cir. Apr. 11, 2025).

Days after our partial stay, Defendants attempted a RIF of

approximately 90% of the Bureau’s employees. When

Plaintiffs asked the district court to halt that RIF as inconsistent

with the unstayed portions of the preliminary injunction, the

government sought clarification from us. We reinstated the

original prohibition of all RIFs to avoid further collateral

19

litigation or personnel action that might prevent Plaintiffs from

“receiv[ing] meaningful final relief should [Defendants] not

prevail” on their appeal. NTEU v. Vought, No. 25-5091, 2025

WL 1721136 (D.C. Cir. Apr. 28, 2025).

II.

We review the district court’s decision to grant a

preliminary injunction for abuse of discretion, its legal

conclusions de novo, and its factual findings for clear error.

Media Matters for Am. v. Paxton, 138 F.4th 563, 573 (D.C. Cir.

2025). “[D]eciding whether to grant a preliminary

injunction is normally to make a choice under conditions of

grave uncertainty.” Singh v. Berger, 56 F.4th 88, 95 (D.C. Cir.

2022) (quoting O Centro Espirita Beneficiente Uniao do

Vegetal v. Ashcroft, 389 F.3d 973, 1015 (10th Cir. 2004) (en

banc) (McConnell, J., concurring)). The purpose of a

preliminary injunction is not to finally set the obligations of the

parties, but to “preserve the status quo pending the outcome of

litigation.” Dist. 50, United Mine Workers of Am. v. Int’l

Union, United Mine Workers of Am., 412 F.2d. 165, 168 (D.C.

Cir. 1969).

I concur in the majority’s holding that at least one plaintiff

nonprofit organization is likely to demonstrate standing to

challenge the unlawful shutdown of the CFPB. Because only

one plaintiff need have standing for us to reach the merits,

Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232

(D.C. Cir. 1996), we need not address whether the employee

plaintiffs’ claims were also properly asserted in district court

or must instead be channeled through the separate

administrative structure Congress created for federal

employment disputes.

20

III.

Plaintiffs press an APA challenge to Defendants’ “final,

concrete decision to shut down the agency entirely.” Vought,

774 F. Supp. 3d at 47. Defendants strenuously deny the

existence of such a decision. They insist they never adopted

any policy to unlawfully abolish the Bureau. But the district

court made well-supported findings of fact to the contrary.

Defendants offered no contemporaneous alternative

explanation for their challenged conduct that squares with both

the facts and the Bureau’s statutory obligations going forward.

And they certainly have not carried their burden to show clear

error in the district court’s findings.

Defendants argue instead that Plaintiffs lack a cause of

action under the APA to contest a decision to abolish an agency

created by Congress. Rather than seek APA review of any

shutdown order, Defendants assert, Plaintiffs must await and

challenge each of the steps the agency would have taken to

implement the Bureau’s shuttering. Vought Br. 37-38.

Alternatively, Defendants argue, Plaintiffs should have waited

until the Bureau had been abolished entirely and then

challenged its inevitable failure to perform statutorily required

work under the APA quasi-mandamus provision allowing a

plaintiff to “compel agency action unlawfully withheld or

unreasonably delayed.” Vought Br. 40-41 (quoting 5 U.S.C.

§ 706(1)). Plaintiffs’ challenge to the directive to shut down

the agency, Defendants say, exceeds limits Congress placed on

any APA cause of action, such as the bar on “programmatic

challenges” that do not identify a discrete agency action

amenable to review. Vought Br. 22, 30-31.

Defendants’ position that Plaintiffs have no APA cause of

action to challenge an agency’s policy decision to cease some

(actually all) of its ongoing work is incompatible with binding

21

precedent. Notwithstanding all of Defendants’ objections that

their challenged action is non-final or too diffuse, or that

Plaintiffs’ claim is somehow unripe, the Supreme Court has

undertaken APA review of agency action that, like the policy

decision Plaintiffs challenge in this case, directed an agency to

shut down its activities. Biden v. Texas, 597 U.S. 785, 809

(2022); Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,

591 U.S. 1, 16-18 (2020); see also Public Citizen v. Steed, 733

F.2d 93, 98 (D.C. Cir. 1984). At bottom, the basis Defendants

rely on to distinguish those cases is that the agencies there made

formal, published announcements of their policy decisions,

whereas the record in this case contains no similarly public

announcement. But Defendants may not evade APA review

solely because, as the district court found, Defendants acted to

abolish the agency without bothering to draft an official

memorandum first.

Circuit precedent is clear that agency action need not “be

committed to writing” to be judicially reviewable. Bhd. of

Locomotive Eng’rs & Trainmen v. Fed. R.R. Admin., 972 F.3d

83, 100 (D.C. Cir. 2020). We have held an agency takes final

action “by adopting [a] policy” that binds its employees,

regardless of whether or how the agency memorializes that

policy’s adoption. Venetian Casino Resort, LLC v. EEOC, 530

F.3d 925, 931 (D.C. Cir. 2008). Any rule to the contrary would

simply encourage agencies to act in secret, in defiance of

foundational principles of administrative law.

Plaintiffs may challenge the decision to abolish the CFPB

as final agency action under the APA. Because Defendants

have never argued that their shutting down of the Bureau was

lawful under any substantive standard we might apply to such

action, the district court appropriately found that Plaintiffs

were likely to succeed on that challenge and entered a

22

preliminary injunction to preserve the agency while litigation

continues.

A.

Plaintiffs’ statutory claims face a threshold question

whether they have identified a “final agency action” subject to

challenge under the APA. See 5 U.S.C. § 704. The “central

purpose” of the APA is to permit a “broad spectrum of judicial

review of agency action.” Bowen v. Massachusetts, 487 U.S.

879, 903 (1988). Courts therefore read the word “action”

generously to encompass “comprehensively every manner in

which an agency may exercise its power.” Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 478 (2001). The “bite” in the

statute is instead provided by the condition that the action also

be “final,” id., requiring that it both “mark the consummation

of the agency’s decisionmaking process” and “be [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) (citations omitted). An action’s

effects need not be immediate for it to be subject to APA

challenge, so long as it “result[s] in a final determination of

rights or obligations.” Biden v. Texas, 597 U.S. at 809 n.7

(citation omitted). And, as just noted above, we may review

agency action even if it is not “committed to writing.” Bhd. of

Locomotive Eng’rs, 972 F.3d at 100.

The district court held that the “final, concrete decision to

shut down the agency entirely” was final agency action subject

to challenge under the APA. Vought, 774 F. Supp. 3d at 47.

Defendants’ primary argument to the contrary is that a decision

to eliminate the Bureau would only be “a preliminary step

along the way to a final action.” Vought Br. 37. In other

words, Defendants suggest that Plaintiffs were required to

delay filing their suit until the Bureau had been destroyed,

23

rather than challenge the determination to eliminate the CFPB

in the first place. The law assuredly does not so require.

An example drawn from Plaintiffs’ brief helps to illustrate

the point. See NTEU Br. 3. Imagine if, on February 10, Acting

Director Vought had issued a formal written memorandum to

CFPB staff announcing that the Bureau was closing up shop

and telling employees to “take all appropriate actions to

terminate the Bureau.” By itself, such a memo would have no

immediate, real-world effect on any person who, like the

nonprofit plaintiffs in this case, benefited from the CFPB’s

existence and would be harmed by its shuttering. Only once

subordinate staff began to implement the order by, for example,

halting lawsuits promising relief, terminating contracts needed

for the Bureau’s work, refusing to accept or respond to hotline

requests, and firing the Bureau’s employees would the memo’s

impact on would-be plaintiffs be felt. But the law is clear that

such a memo reflects reviewable agency action. Plaintiffs need

not wait until the policy decision is fully implemented before

they can challenge it. See Toilet Goods Ass’n v. Gardner, 387

U.S. 158, 164 (1967) (explaining that agency action is ripe for

judicial review when “the impact of the administrative action

could be said to be felt immediately by those subject to it”).

In Biden v. Texas, the Supreme Court endorsed APA

review of a decision that could just as easily be characterized

as “a preliminary step along the way” to a complete action,

Vought Br. 37, as the Bureau shutdown in this case. The

district court accepted the claim for review as soon as

Homeland Security Secretary Mayorkas issued the memo

terminating the “Remain in Mexico” program and directing

staff “to take all appropriate actions to terminate [the program],

including taking all steps necessary to rescind implementing

guidance and other directives or policy guidance issued to

implement the program.” Biden v. Texas, 595 U.S. at 793-94.

24

That memo qualified as final agency action because it bound

staff to stop implementing the terminated program—just as the

hypothesized Vought memo would have bound Bureau staff to

discontinue their own work. See id. at 808-09. In fact, in Biden

v. Texas the Supreme Court also held that a later, similar memo

likewise qualified as reviewable agency action even though

that memo ordered staff to take no action to terminate the

program until ongoing litigation was completed. Id. at 809 n.7.

No matter that, by its own terms, the memo could have no real-

world effect until the occurrence of a separate event beyond the

agency’s control. Nothing in Biden v. Texas suggests that the

government could have forestalled a court challenge by

ordering the termination of the entirety of Customs and Border

Protection, or the whole Department of Homeland Security,

instead of that individual program.

In this case, of course, there is no record of such a memo.

It is especially remarkable that Defendants rely on the absence

of documentation here, at a litigation stage prior to any

discovery into the internal machinations of Bureau leadership,

and on a record that reflects Defendants’ deliberate avoidance

of the ordinary tools of openly reasoned and vetted agency

decision making. The lack of evidence that Vought reduced

his directive to writing is of no legal import—just as the result

in Biden v. Texas would have been the same had Secretary

Mayorkas elected to terminate the Remain in Mexico program

orally or by semaphore rather than by written command.

Binding circuit precedent confirms the point. In Venetian

Casino Resort, the plaintiff challenged the EEOC’s alleged

policy authorizing Commission staff to disclose an employer’s

confidential business information without first notifying the

employer. 530 F.3d at 927. As part of its defense, the EEOC

argued that its internal compliance manual, which appeared to

authorize such disclosures, was not reviewable final agency

25

action because it was a guidance document and did not create

any legal obligations. Id. at 931. But we held that argument

“misdirected,” as:

Venetian does not contend the Manual itself is a final

agency action. Rather, Venetian challenges the

decision of the Commission to adopt a policy of

disclosing confidential information without notice.

The Manual is relevant insofar as it illuminates the

nature of the policy, but the agency took final action

by adopting the policy, not by including it in the

Manual. Adopting a policy of permitting employees

to disclose confidential information without notice is

surely a consummation of the agency’s

decisionmaking process, and one by which [the

submitter’s] rights [and the agency’s] obligations

have been determined.

Id. (formatting altered). So too here.

The CFPB took final action when it adopted a policy to

shut itself down, just as the Department of Homeland Security

took final action by adopting a policy to terminate the Remain

in Mexico program. The specific verbal and written statements

of Vought and others are critical evidence as to what action the

Bureau did or did not take, but the action itself is the “manner

in which an agency . . . exercise[s] its power,” Am. Trucking,

531 U.S. at 478, rather than the method by which that exercise

of power is communicated or memorialized. Indeed, at oral

argument the government’s counsel conceded the point that

courts may “infer from circumstantial evidence that there’s a

decision.” Oral Arg. Tr. 78:6-7. In the district court, Plaintiffs

also pursued an alternative theory that the Stop Work Order

was itself final agency action challengeable under the APA.

See Vought, 774 F. Supp. 3d at 42-46; NTEU Br. 32-34. But

26

the gravamen of their claim is simply that “[D]efendants

decided to shut down the agency.” NTEU Br. 14. The scope

and effects of the Stop Work Order certainly reinforce the

nature of the action Defendants took, but resolving this case

does not require analyzing that Order separately under the

APA.

B.

Because binding precedent establishes that adopting a

policy to terminate the CFPB would constitute final reviewable

agency action, the next question is whether Defendants in fact

adopted such a policy. The district court found in the

affirmative. As the court explained: “The decision to close an

agency is not a theoretical or hypothetical concept—it’s real.

The agency is either open or it’s not.” Vought, 774 F. Supp. 3d

at 47. And the record supports the district court’s finding that

Defendants made “a final, concrete decision to shut down the

agency entirely.” Id. Following a two-day evidentiary hearing

and review of extensive written evidence, the district court

concluded that “defendants were in fact engaged in a concerted,

expedited effort to shut the agency down entirely” on the week

of February 10. Id. at 58. Defendants had ordered “the

wholesale cessation of activities” through “the decision to shut

down the agency completely, id. at 46, and “the agency was

barreling full speed ahead in [the] effort to dismantle the

agency completely by the end of the week [of February 10],”

id. at 58, before the district court intervened. Those findings

are well supported by the record and certainly survive clear

error review.

To recap the most relevant undisputed facts of record: The

same day that Vought was named acting CFPB director, CFPB

leadership took the Bureau’s website offline and deleted its X

account, while Elon Musk—whose DOGE subordinates were

27

embedded within the Bureau—posted “CFPB RIP” alongside

a tombstone emoji on his personal X account. Third Meyer

Decl. ¶ 19 (J.A. 172); Kaspar Decl. ¶ 6 (J.A. 52). On February

10, the first full workday after Vought’s appointment, Vought

directed CFPB employees to “not perform any work tasks.”

Stop Work Order (J.A. 101). President Trump announced the

same day that “[t]he CFPB was a very important thing to get

rid of” and “we did the right thing.” Frotman Decl. ¶ 4 (J.A.

204); Roston/Scible Decl. Ex. G, ECF No. 38-17; see Vought,

774 F. Supp. 3d at 16-38, 40. The next day, Bureau Chief Legal

Officer Paoletta ordered the cancellation of all contracts in

several of the CFPB’s largest and most important divisions,

including Enforcement, Supervision, and Consumer Response.

Feb. 11 Paoletta Email (J.A. 288). The terminated contracts

included the contracts that staff had, at Paoletta’s request,

identified as necessary for the Bureau’s (statutorily required)

work. Pfaff Decl. ¶ 27 (J.A. 148). CFPB employees were

directed to terminate contracts as fast as possible without

bothering to take typical measures to preserve CFPB data.

Mar. 10 Hearing Tr. 174 (J.A. 1073); Charlie Doe Decl. ¶¶ 3-

5, 12 (J.A. 129-30, 132). After terminating all probationary

and term-limited employees, Defendants then began preparing

the paperwork to terminate all other Bureau employees in two

phases. Mar. 10 Hearing Tr. 129-30 (J.A. 1028-29); see Feb.

14 Martinez RIF Email (J.A. 539). Those efforts were paused

by the district court’s consent order (the effect of which we

extended in a stay pending decision of this expedited appeal).

Martinez meanwhile continued to inform Bureau employees

that the Bureau would be closed entirely once the order was

lifted and it became possible to do so. Mar. 11 Hearing Tr. 57-

59 (J.A. 1231-33).

Based on those findings of fact, the district court’s factual

conclusion that Defendants had adopted a policy to eliminate

the CFPB is unassailable. Analogizing again to Biden v. Texas,

28

imagine if no formal memo had issued but President Biden had

made public statements that it was “very important” to have

gotten rid of the Remain in Mexico program; that Department

of Homeland Security leadership had ordered employees who

had been implementing the policy to cease their activities,

terminated contracts necessary to carry out the policy, and

stated that DHS staff responsible for the policy were slated for

termination without replacement; and that the Department’s

Chief Operating Officer had informed staff that the policy

would be formally terminated as soon as a court order

preventing them from doing so was lifted. A court reviewing

that record would reasonably conclude that Secretary

Mayorkas had in fact directed the Department of Homeland

Security to terminate the Remain in Mexico program, or that

the Department had otherwise adopted a policy of terminating

that program. The district court’s intervention through the

consent order and stay to forestall Defendants’ implementation

of some of the necessary steps to abolish the CFPB does not

alter the calculus, just as the second memo in Biden v. Texas

was a final, reviewable agency action even though it could not

have operative effect until an injunction protecting the Remain

in Mexico policy was lifted. 597 U.S. at 809 n.7.

Defendants strenuously deny any intent to shut down the

Bureau, but the evidence they point to regarding their activities

around February 10—that is, at the time when the district court

found that they adopted a binding policy to abolish the CFPB—

is scarce indeed. For example, Defendants emphasize that

Paoletta approved restarting the statutorily required consumer

complaint hotline and publication of data under the Home

Mortgage Disclosure Act after both had ceased pursuant to the

Stop Work Order. Oral Arg. Tr. 21:19-23. But Martinez

testified that such work was restarted primarily because

Agency leadership feared a backlash if public-facing activities

of the Bureau were to go dark. Mar. 10 Hearing Tr. 89:2-6,

29

192:21-25 (J.A. 988, 1091). The district court dismissed

Defendants’ limited efforts to restart some workstreams the

week of February 10 as too little, too late. Leadership’s

approvals were “narrow and grudging,” and “when it was doing

anything, the agency was largely doing what was statutorily

mandated to manage itself internally,” not reviving what was

needed to carry on the Bureau’s public-protective activities.

Vought, 774 F. Supp. 3d at 65. The district court’s factfinding

is dispositive.

More importantly, even as the Bureau took limited steps to

restore limited, public-facing functions, any restoration was

illusory because it remained impossible to run the activities

ostensibly restarted, such as the CFPB Consumer Resource

Center’s consumer complaint hotline and database, without the

contracts necessary to their operation. For example,

Defendants had cancelled and not restored five contracts for

components including systems enabling data sharing, and for

virus scanning software, each of which was required for the

complaint hotline’s case management system. Without the

contracts, the hotline could not effectively respond to calls

from members of the public, whether to submit a complaint,

answer a question, or provide an update. See Pfaff Decl. ¶¶ 27-

30 (J.A. 148-49). Even as Defendants went through the

motions of starting to bring a limited set of public-facing

activities back online, they simultaneously sought permission

from OPM to permanently eliminate, on an accelerated

timeline, the entirety of the offices and staff responsible for

much of that work. Memorandum from Adam Martinez to

Michael J. Mahoney (Feb. 13, 2025) (J.A. 518).

On clear error review, we “may not reverse” a district

court’s factual findings that are “plausible in light of the record

viewed in its entirety.” Cuddy v. Carmen, 762 F.2d 119, 124

(D.C. Cir. 1985). The government’s counsel insisted at oral

30

argument that “there’s a fog of confusion about what’s going

on in the early days” of Vought’s leadership of the Bureau.

Oral Arg. Tr. 78:13-14. But the district court found based on

record evidence that Defendants’ actions—stopping essentially

all of the Bureau’s work, terminating contracts necessary for

the CFPB’s operations, preparing to eliminate the entirety of

the agency’s staff, and informing staff that the Bureau would

cease to exist after the court’s order was lifted—resulted from

an intentional effort to implement the policy decision

announced by the President, the leader of DOGE, and the

Bureau’s own Chief Operating Officer. That policy decision

was to close the CFPB and cease to perform the work that

Congress created it to perform. The only other conceivable

explanation would seem to be recklessness and gross

incompetence, but Defendants have not advanced that

explanation.

Instead, Defendants principally argue that, even accepting

that they attempted to abolish the CFPB in February, they had

repudiated any such policy by early March. See Vought Br.

49-52. But Defendants cannot recast the action that forced

Plaintiffs to file this suit—the shutdown decision that they had

begun implementing when the district court acted—solely by

claiming to have later changed their minds. And the evidence

of such an about-face is, in any event, minimal and failed to

persuade the district court. To be sure, on March 2 Paoletta

informed Bureau staff that employees had been expected all

along to carry out statutorily required work without any prior

permission. Mar. 2 Paoletta Email (J.A. 338). He did not

explain how that squared with the Stop Work Order’s

requirement of prior permission to do essential work, or the tip

line to report and stop any work proceeding without

permission. Paoletta’s new order was followed by a flurry of

directives from March 2-3 authorizing staff to perform certain

required tasks. Martinez gestured at this theory when he

31

testified that, although “DOGE came in with a very hard fist,”

there had since been a “change in posture” and a “differing

approach[]” once Vought and his deputies—whom Martinez

referred to as “the adults”—were in command. Mar. 10

Hearing Tr. 23:2-5 (J.A. 922). Notably, the record contains no

evidence that Defendants had in fact developed any plan

whatsoever for running the agency—as opposed to eliminating

it.

The district court rejected Defendants’ effort to reframe

the evidence and the conclusions Defendants insisted could

flow from it as a “charade for the [c]ourt’s benefit,” given that

Defendants sent the putative course-correction emails shortly

before the district court’s scheduled hearing on the motion for

a preliminary injunction. Vought, 774 F. Supp. 3d at 11.

Neither those emails nor any other evidence in the record could

give a reasonable observer a “definite and firm conviction” that

a mistake was made. Cooper v. Harris, 581 U.S. 285, 309

(2017) (internal quotation marks omitted). The district court

was on solid evidentiary ground when it rejected Defendants’

contentions that the CFPB’s Chief Legal Officer was somehow

unaware for almost three weeks that the Bureau’s statutorily

required work had halted, and the termination was intended to

be permanent.

Indeed, Defendants’ continued insistence that the Stop

Work Order was never intended to pause statutorily required

work squarely conflicts with their contemporaneous attempt to

use that same Order to justify the accelerated, permanent firing

of the employees who performed the work that Defendants now

say they intended to continue. And the government could not

even stick to its talking points. Shortly after Paoletta’s

whitewashing email, the White House publicly celebrated that

President Trump had “ordered [the Bureau] . . . to halt

operations.” Id. at 47.

32

In any event, the argument that Plaintiffs cannot obtain an

injunction because, weeks after they filed suit, Defendants took

steps to reverse the policy Plaintiffs challenged is at most a

suggestion that the case is moot—an argument that Defendants

are not making, and that is unsupported. To be sure, federal

courts may not resolve a case after “a complaining party

manages to secure outside of litigation all the relief he might

have won in it,” but it is well established that a defendant may

not “automatically moot a case by the simple expedient of

suspending its challenged conduct after it is sued.” FBI v.

Fikre, 601 U.S. 234, 240-41 (2024) (internal quotation marks

omitted). Any defendant seeking to show mootness in such

circumstances faces a “formidable burden” to prove that the

challenged practice “cannot ‘reasonably be expected to recur.’”

Id. at 241 (quoting Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc., 528 U.S. 167, 189-90 (2000)).

Defendants have never—not before the district court nor

on appeal—sought to bear their formidable burden to show that

Plaintiffs’ claims are moot. Nor have they ever sought to

modify or vacate the preliminary injunction on grounds of

changed circumstances rendering its continued enforcement no

longer equitable. See Horne v. Flores, 557 U.S. 433, 447

(2009) (holding that a party may move to modify or vacate a

judgment or order if “a significant change either in factual

conditions or in law renders continued enforcement detrimental

to the public interest.”); cf. Petties v. District of Columbia, 662

F.3d 564, 571 (D.C. Cir. 2011). They cannot stitch together

evidence of what they say is a post-litigation embrace of their

legal obligations to recharacterize the record as it existed—

showing just the opposite—when the case was filed.

33

C.

Defendants’ efforts to portray Plaintiffs’ claims as, at their

heart, a miscast attempt to “compel agency action unlawfully

withheld,” 5 U.S.C. § 706(1), fare no better. Vought Br. 39-

42. Throughout this case, Plaintiffs have made clear that they

challenge Defendants’ decision to shut down the CFPB rather

than seek to compel the performance of any specific agency

duty or service. NTEU Br. 35-36. Defendants insist that

anticipation of “losing access to services [Plaintiffs] allege

CFPB is statutorily required to provide” can only support a

quasi-mandamus APA suit to compel agency action

“unlawfully withheld or unreasonably delayed.” Vought Br.

39; 5 U.S.C. § 706(1). Their insistence that Plaintiffs’ only

recourse under the APA must be found in section 706(1) is

squarely foreclosed by precedent.

This case challenges the Executive’s unilateral decision to

disband an agency Congress created by statute, not that

agency’s failure to answer individual queries or bring certain

wished-for enforcement actions. The public that Congress

intended to benefit is not disallowed from bringing the former

kind of challenge nor relegated exclusively to the latter.

Regents illustrates the point. The plaintiffs there challenged a

DHS memorandum ordering the termination of the “DACA

Program,” which allowed certain undocumented immigrants to

apply for forbearance of removal, work authorization, and

other federal benefits. 591 U.S. at 8-10. Those plaintiffs, who

would have been harmed by DACA’s abolition, challenged the

order terminating the program under 5 U.S.C. § 706(2), which

permits courts to “hold unlawful and set aside agency action.”

591 U.S. at 16. The Supreme Court undertook review in

Regents and vacated the DHS order. It did so even though the

plaintiffs’ claims, which necessarily arose from the harms they

would have suffered had the agency failed to continue

34

implementing the to-be-cancelled DACA Program, might have

equally been described as an attempt to compel the agency to

perform actions unlawfully withheld—such as acting on their

individual DACA applications or providing them benefits they

would be afforded if they qualified under DACA.

Biden v. Texas is further support. Plaintiffs’ APA claim

arose from the injury they would incur if DHS stopped

enrolling noncitizens in the Remain in Mexico program. The

suit could easily have been framed as an attempt to compel the

agency to act by continuing those enrollments. See 597 U.S. at

793-94. The Court nonetheless recognized the case as

challenging final agency actions that had occurred, and not as

a quasi-mandamus suit to compel actions that plaintiffs claimed

the agency had unlawfully failed to take. Id. at 807-08.

Congress in the APA did not confine persons in Plaintiffs’

position to claiming that the agency must reconstruct,

piecemeal and from the bottom up, each of the components of

the terminated agency on which they depend for specific

services or broader legal protections.

To be sure, demonstrating standing to challenge the

shutting down of the CFPB requires Plaintiffs to show that the

challenged agency action causes them harm that likely would

be redressed if the challenged action were set aside. See FDA

v. All. for Hippocratic Med., 602 U.S. 367, 380 (2024). But the

standing inquiry—wherein Plaintiffs must identify how they

benefit fro

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