# National Treasury Employees Union v. Russell Vought

> Court of Appeals for the D.C. Circuit · August 15, 2025

URL: https://www.frixlaw.com/law-library/cases/11121348

## Case

- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** August 15, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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
3
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.
7
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”).
8
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.
9
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 divis

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11121348. Public record. Not legal advice.