Community Legal Services in East Palo Alto v. United States Department of Health and Human S

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COMMUNITY LEGAL SERVICES No. 25-2808

IN EAST PALO ALTO; SOCIAL

D.C. No.

JUSTICE COLLABORATIVE;

3:25-cv-02847-

AMICA CENTER FOR

AMO

IMMIGRANT RIGHTS;

ESTRELLA DEL PASO;

FLORENCE IMMIGRANT AND ORDER

REFUGEE RIGHTS PROJECT;

GALVESTON-HOUSTON

IMMIGRANT REPRESENTATION

PROJECT; IMMIGRANT

DEFENDERS LAW CENTER;

NATIONAL IMMIGRANT

JUSTICE CENTER; NORTHWEST

IMMIGRANT RIGHTS PROJECT;

ROCKY MOUNTAIN

IMMIGRANT ADVOCACY

NETWORK; VERMONT ASYLUM

ASSISTANCE PROJECT,

Plaintiffs - Appellees,

v.

UNITED STATES DEPARTMENT

OF HEALTH AND HUMAN

SERVICES; UNITED STATES

DEPARTMENT OF THE

2 CMTY. LEGAL SERVICES V. U.S. HHS

INTERIOR; OFFICE OF REFUGEE

RESETTLEMENT,

Defendants - Appellants.

Filed October 10, 2025

Before: William A. Fletcher, Consuelo M. Callahan, and

Lucy H. Koh, Circuit Judges.

Order;

Statement by Judges W. Fletcher and Koh;

Dissent by Judges Bumatay and VanDyke

SUMMARY *

Immigration/Tucker Act/Stays

The panel denied a petition for rehearing en banc in a

case in which the panel denied the Government’s motion for

a stay pending appeal of the district court’s order

preliminarily enjoining the Government from terminating all

funding for counsel to represent unaccompanied children in

immigration proceedings.

Respecting the denial of rehearing en banc, Judges W.

Fletcher and Koh wrote that Plaintiffs here have no contract

with the Government, do not invoke any contractual terms

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CMTY. LEGAL SERVICES V. U.S. HHS 3

as the basis for their action, and do not seek a contractual

remedy from the Government. Rather, Plaintiffs’

Administrative Procedure Act claims seek declaratory and

injunctive relief requiring Defendants’ compliance with

their statutory obligations under the Trafficking Victims

Protection Reauthorization Act of 2008 and their regulatory

obligations under the Foundational Rule promulgated to

implement the statute. Accordingly, Plaintiffs’ claims fall

outside the jurisdictional bounds of the Tucker Act, which

vests exclusive jurisdiction in the Court of Federal Claims

over any claim against the United States that is founded upon

a contract with the United States, and squarely within the

purview of the Administrative Procedure Act.

Judges Bumatay and VanDyke, joined by Judges

Callahan, Ikuta, Bennett, R. Nelson, Collins, Lee, and Bress,

dissented from the denial of rehearing en banc. Judges

Bumatay and VanDyke wrote that the court should have

reheard the case en banc because the Government, at a

minimum, is likely to succeed in showing that the district

court lacked jurisdiction. Specifically, Judges Bumatay and

VanDyke concluded that Plaintiffs’ claims are

fundamentally contract claims that belong in the Court of

Federal Claims under the Tucker Act. Judges Bumatay and

VanDyke also wrote that Department of Education and NIH

control this case, but the Ninth Circuit has failed to respect

the Supreme Court’s guidance and has let stand an injunction

that violates the limits Congress has set on the courts’

jurisdiction and interferes with the Executive’s prerogative

to set and review policies.

4 CMTY. LEGAL SERVICES V. U.S. HHS

ORDER

Judge Koh voted to deny the petition for rehearing en

banc and Judge W. Fletcher so recommended. Judge

Callahan voted to grant the petition for rehearing en banc. A

judge of the court requested a vote on whether to rehear the

matter en banc. The matter failed to receive a majority of the

votes of the active judges in favor of en banc consideration.

Fed. R. App. P. 35. Judge H.A. Thomas did not participate

in the deliberations or vote in this case. The petition for

rehearing en banc, Dkt. No. 23, is DENIED.

W. FLETCHER and KOH, Circuit Judges, respecting the

denial of rehearing en banc:

This case concerns the Government’s statutory and

regulatory obligations to ensure that unaccompanied

children in immigration proceedings have legal

representation. Earlier this year, the Government abruptly

halted funding for its only program ensuring legal

representation for unaccompanied children. Plaintiffs

brought this lawsuit arguing that the Government is failing

to meet its statutory and regulatory obligations and that the

Government’s actions were arbitrary and capricious. The

district court agreed, and we declined to stay the district

court’s preliminary injunction pending appeal.

Our dissenting colleagues attempt to reframe Plaintiffs’

suit as a breach of contract action against the Government,

which could only be brought in the Court of Federal Claims.

We respectfully disagree.

CMTY. LEGAL SERVICES V. U.S. HHS 5

The bottom line is that Plaintiffs have no contract with

the Government. They do not invoke any contractual terms

as the basis for their action. Nor do they seek a contractual

remedy from the Government. Rather, Plaintiffs seek

declaratory and injunctive relief requiring compliance with

the statutory obligations set out by Congress and the

regulatory obligations set forth by Defendants themselves.

Thus, as the district court put it, “Plaintiffs’ claims have no

business before the [Court of Federal] Claims.” Cmty. Legal

Servs. in E. Palo Alto v. U.S. Dep’t of Health & Hum. Servs.,

780 F. Supp. 3d 897, 917 (N.D. Cal. 2025).

I.

The Trafficking Victims Protection Reauthorization Act

of 2008 (“TVPRA”) requires the Department of Health and

Human Services (“HHS”) to “ensure, to the greatest extent

practicable,” that all unaccompanied children in immigration

custody receive legal representation. 8 U.S.C. § 1232(c)(5).

To implement this statutory mandate, HHS’s Office of

Refugee Resettlement (“ORR”) promulgated the

“Foundational Rule,” which provides that ORR “shall fund

legal service providers to provide direct immigration legal

representation for certain unaccompanied children, subject

to ORR’s discretion and available appropriations.” 45 C.F.R.

§ 410.1309(a)(4) (2024) (emphasis added).

Since 2012, and as recently as March 15, 2025, Congress

has consistently appropriated funds to ensure compliance

with the TVPRA’s mandate. See Full-Year Continuing

Appropriations and Extensions Act, Pub. L. No. 119-4,

§ 1101(8), 139 Stat. 9, 11 (2025). Such funding is critical,

given that the TVPRA was passed after a pilot program

found that ORR could not meet the legal needs of

unaccompanied minors through pro bono counsel alone. See

6 CMTY. LEGAL SERVICES V. U.S. HHS

Olga Byrne & Elise Miller, The Flow of Unaccompanied

Children Through the Immigration System 22–23, VERA

INST. JUST. (March 2012), https://perma.cc/M352-AA3N.

As a recent Senate report stated, “[t]he Committee also

expects these funds will be used to provide access to counsel,

consistent with the goals of the Trafficking Victims

Protection Reauthorization Act of 2008 for all children to

have access to counsel in their immigration proceedings.” S.

Rep. No. 118-84, at 169 (2023). In accordance with those

congressional appropriations, every presidential

administration since the TVPRA’s passage has provided

funding for direct representation of unaccompanied children

pursuant to Section 1232(c)(5).

But just six days after the latest congressional

appropriation, HHS, ORR, and the Department of the

Interior (collectively, the “Government”) made an abrupt

about-face. The Government cancelled all funding for direct

representation of unaccompanied children (the

“Cancellation Order”). At the time of the Cancellation

Order, such representation was being provided through a

single agreement with the Acacia Center for Justice (the

“Acacia contract”). Cmty. Legal Servs., 780 F. Supp. 3d at

909. The Acacia contract contained a provision “reserv[ing]

the right to terminate th[e] contract, or any part [t]hereof, for

[the Government’s] sole convenience.” The Government

stated that it was terminating funding for “the Government’s

convenience” in the Cancellation Order, but it provided no

alternative plan to comply with the TVPRA and the

Foundational Rule.

Plaintiffs are organizations dedicated to ensuring legal

representation for persons in immigration proceedings. That

mission includes providing representation for the uniquely

vulnerable population of unaccompanied children. As one

CMTY. LEGAL SERVICES V. U.S. HHS 7

organization explained, a “central tenet of [its] mission has

been that no child should have to stand alone in court.” To

support their work, Plaintiffs have received federal funding

disbursed through Acacia. But Acacia is not a plaintiff in this

case. Plaintiffs are not a party to Acacia’s contract with the

Government. Nor have Plaintiffs alleged that the

Government breached its contract with Acacia. Indeed,

Plaintiffs are unlikely to succeed on such a claim because of

the Acacia contract’s termination provision. Rather,

Plaintiffs challenged the Government’s failure to comply

with the TVPRA and the Foundational Rule under the

Administrative Procedure Act (“APA”).

The APA “sets forth the procedures by which federal

agencies are accountable to the public and their actions

subject to review by the courts.” Franklin v. Massachusetts,

505 U.S. 788, 796 (1992). It requires agencies to engage in

“reasoned decisionmaking,” Michigan v. EPA, 576 U.S.

743, 750 (2015) (cleaned up), and directs that agency actions

be “set aside” if they are “arbitrary” or “capricious,” 5

U.S.C. § 706(2)(A). Likewise, the APA requires reviewing

courts to “hold unlawful and set aside agency action . . .

found to be . . . otherwise not in accordance with law.” Id.

Here, Plaintiffs brought garden-variety APA claims.

First, Plaintiffs alleged that the Government’s actions were

“not in accordance” with the Government’s statutory

obligations under the TVPRA because, despite available

congressional appropriations, the Government cancelled all

funding and provided no alternative plan to ensure legal

representation for unaccompanied children. Second, for the

same reasons, Plaintiffs alleged that the Government’s

behavior was “not in accordance” with ORR’s own

regulation, the Foundational Rule. Third, Plaintiffs alleged

that the Government’s sudden change of position was

8 CMTY. LEGAL SERVICES V. U.S. HHS

arbitrary and capricious because the Government provided

no reasoned explanation for its actions and failed to consider

critical reliance issues—like ongoing legal proceedings for

unaccompanied children—before halting all funding.

Together, Plaintiffs alleged that the Government’s

failure to comply with the TVPRA, Foundational Rule, and

APA harmed Plaintiffs’ missions to ensure that

unaccompanied children in immigration proceedings have

legal representation. As a remedy, Plaintiffs sought relief

untethered from their contractual relationship with Acacia.

Specifically, Plaintiffs requested declaratory relief that an

APA violation occurred, an order “[s]et[ting] aside” any

actions that violate the APA, and an injunction preventing

the Government “from ceasing to fund counsel to represent

unaccompanied children in violation of the TVPRA and the

Foundational Rule.” To put a finer point on it, Plaintiffs did

not demand an injunction that the Government pay money to

Plaintiffs. Rather, Plaintiffs sought prospective relief

requiring the Government to take some action to use the

congressionally appropriated funds to comply with the

TVPRA and the Foundational Rule.

Through preliminary injunction proceedings, the district

court found that: (1) congressionally appropriated funds for

direct representation remained available, (2) the

Government cut all funding for direct representation of

unaccompanied children, (3) the Cancellation Order’s sole

justification was “the Government’s convenience,” 1 (4) the

Government disclosed no plan to ensure ongoing

1

The Government’s district court declaration stated that the Acacia

contract was cancelled “to reduce spending and achieve more cost

efficiency.” But, as the district court explained, “[n]one of these

rationales are evidenced” in the Cancellation Order.

CMTY. LEGAL SERVICES V. U.S. HHS 9

representation for unaccompanied children, and (5) by

cancelling the use of congressionally appropriated funds, the

Government “effectively eliminat[ed] direct representation

for unaccompanied children.”

Thus, the district court determined that Plaintiffs were

likely to succeed on all three APA claims and issued a

preliminary injunction against the cancellation of the

congressionally authorized funding. We denied the

Government’s motion for a stay pending appeal. See Cmty.

Legal Servs. in E. Palo Alto v. U.S. Dep’t of Health & Hum.

Servs., 137 F.4th 932, 937 (9th Cir. 2025). An en banc call

to review our denial of the Government’s stay motion failed,

and several of our colleagues now write to dissent from the

failure to rehear our stay denial en banc. In the meantime,

briefing on the merits of the appeal of the preliminary

injunction was completed on August 14, 2025, and will be

ruled upon by a merits panel.

With that context, we turn to the question of whether the

district court and our court or the Court of Federal Claims

have subject matter jurisdiction over this suit.

II.

We have subject matter jurisdiction over suits brought

under the APA. 5 U.S.C. § 702. The APA “confers a general

cause of action upon persons ‘adversely affected or

aggrieved by agency action within the meaning of a relevant

statute.’” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345

(1984) (quoting 5 U.S.C. § 702). The APA’s waiver of

sovereign immunity, however, “does not apply ‘if any other

statute that grants consent to suit expressly or impliedly

forbids the relief which is sought.’” Dep’t of Educ. v.

California, 604 U.S. 650, 651 (2025) (quoting 5 U.S.C.

§ 702). As relevant here, the Tucker Act, 28 U.S.C. § 1491,

10 CMTY. LEGAL SERVICES V. U.S. HHS

vests exclusive jurisdiction in the Court of Federal Claims

over any claim against the United States that is founded

“upon any express or implied contract with the United

States.”

The Tucker Act “‘impliedly forbid[s]’ an APA action

seeking injunctive and declaratory relief only if that action

is a ‘disguised’ breach-of-contract claim.” United

Aeronautical Corp. v. U.S. Air Force, 80 F.4th 1017, 1026

(9th Cir. 2023) (quoting Megapulse, Inc. v. Lewis, 672 F.2d

959, 968 (D.C. Cir. 1982)). In making this determination, we

“look[ ] to (1) ‘the source of the rights upon which the

plaintiff bases its claims’ and (2) ‘the type of relief sought

(or appropriate).’” Id. (quoting Doe v. Tenet, 329 F.3d 1135,

1141 (9th Cir. 2003)). Moreover, courts “categorically reject

the suggestion that a federal district court can be deprived of

jurisdiction by the Tucker Act when no jurisdiction lies in

the Court of Federal Claims.” Tootle v. Sec’y of Navy, 446

F.3d 167, 176 (D.C. Cir. 2006).

Contrary to the dissent, we have jurisdiction over

Plaintiffs’ APA claims, and Plaintiffs do not bring a

“disguised” breach-of-contract claim in this case. Dissent at

22–23. First, Plaintiffs’ claims stem from the Government’s

failure to comply with its statutory obligations under the

TVPRA and its regulatory obligations under the

Foundational Rule, and Plaintiffs do not seek to enforce the

Acacia contract. Second, Plaintiffs do not seek a money

damages for breach of contract. Rather, they “seek to ensure

representation for unaccompanied children in immigration

proceedings, regardless of which lawyers provide it.” Cmty.

Legal Servs., 780 F. Supp. 3d at 917. Finally, this case also

differs from the U.S. Supreme Court’s decisions in

Department of Education v. California, 604 U.S. 650 (2025),

and National Institutes of Health v. American Public Health

CMTY. LEGAL SERVICES V. U.S. HHS 11

Ass’n (“NIH”), 145 S. Ct. 2658 (2025). Unlike the plaintiffs

in those cases, Plaintiffs have no contractual relationship

with the Government. We address each point in turn.

A.

Start with the source of Plaintiffs’ rights. United

Aeronautical, 80 F.4th at 1026. To evaluate the “source of

rights,” we consider (1) whether resolution of Plaintiffs’

claims primarily require examination of statutes or

regulations that the Government allegedly violated;

(2) whether Plaintiffs’ rights exist independently of any

contract; and (3) whether Plaintiffs seek to enforce a

contractual duty imposed upon the government. See Crowley

Gov’t Servs., Inc. v. Gen. Servs. Admin., 38 F.4th 1099,

1108–09 (D.C. Cir. 2022). Each factor weighs in favor of our

jurisdiction.

First, Plaintiffs’ claims “primarily” turn on “an

examination” of the TVPRA and the Foundational Rule. Id.

Plaintiffs advance standard APA claims that the Government

violated statutory (TVPRA) and regulatory (Foundational

Rule) obligations and acted arbitrarily and capriciously by

changing position without reasoned explanation. See 5

U.S.C. § 706(2)(A).

The APA grants a right to judicial review to any “person

. . . adversely affected or aggrieved by agency action within

the meaning of a relevant statute” when “seeking relief other

than money damages.” Id. § 702. Plaintiffs are such persons

because they have a direct interest in ensuring representation

of unaccompanied children that stands independent from the

Acacia contract. The Government’s non-compliance has

injured Plaintiffs’ attempts to serve their mission. Thus,

Plaintiffs may challenge the Government’s actions under the

APA. See California v. Trump, 963 F.3d 926, 941–42 (9th

12 CMTY. LEGAL SERVICES V. U.S. HHS

Cir. 2020) (a party whose “interests are congruent with those

of Congress and are not ‘inconsistent with the purposes

implicit in the statute’” is a suitable challenger to agency

action under the APA (quoting Match-E-Be-Nash-She-Wish

Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225

(2012))).

The TVPRA and the Foundational Rule create statutory

and regulatory obligations for the Government to fund legal

representation for unaccompanied children “to the greatest

extent practicable.” 8 U.S.C. § 1232(c)(5); see also 45

C.F.R. § 410.1309(a)(4). Plaintiffs assert that the

Government’s total refusal to fund direct representation for

unaccompanied children—despite the availability of

congressionally appropriated funds to comply with the

TVPRA’s mandate—violates those statutory and regulatory

obligations. In other words, the core of Plaintiffs’ claims is

that when congressionally appropriated funding is available,

the Government must comply with the TVPRA and the

Foundational Rule. As we explained in our stay order, “the

greatest extent practicable” is not the same as “to no extent

at all.” Cmty. Legal Servs., 137 F.4th at 941. That is not a

contractual claim.

Second, Plaintiffs’ rights “exist[] prior to and apart from

rights created under” the Acacia contract. Crowley, 38 F.4th

at 1107 (alteration in original) (quoting Spectrum Leasing

Corp. v. United States, 764 F.2d 891, 894 (D.C. Cir. 1985)).

The TVPRA and the Foundational Rule—both of which

exist separate and apart from the Acacia contract—are what

require the Government to act. Plaintiffs’ asserted harms

arise from the frustration of their mission and diversion of

resources to ensure unaccompanied children have legal

representation. As the district court explained, “if the

Government takes steps to ensure direct representation

CMTY. LEGAL SERVICES V. U.S. HHS 13

through others, the harm Plaintiffs suffer in the form of

providing representation without payment or diverting

resources would be alleviated.” Cmty. Legal Servs., 780 F.

Supp. 3d at 914. Plaintiffs’ claims do not rely upon the terms

of the Acacia contract or even its existence. Indeed,

Plaintiffs may challenge the Government’s decision to

refuse to ensure the direct representation of unaccompanied

children without reference to the Government’s existing

contractual obligations.

Finally, Plaintiffs do not seek to enforce any specific

contractual term from the Acacia contract. Plaintiffs are not

a party to the Acacia contract. In fact, the Government’s

position throughout this appeal has been that Plaintiffs—as

subcontractors—cannot proceed in the Court of Federal

Claims to enforce the Acacia contract. Moreover, Plaintiffs

do not allege that the Government breached any duty

imposed by the Acacia contract and do not rely on any

provision in the Acacia contract to demonstrate the

Government’s actions were unlawful.

This case is poles apart from the cases the dissent cites,

which involved “disguised” breach-of-contract claims.

Dissent at 36. In each of those cases, the plaintiffs’ claims

depended upon the existence and breach of a contract

between the plaintiffs and the Government. 2 Here, by

2

See Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 647

(9th Cir. 1998) (finding the Tucker Act applied where plaintiff’s “claims

do not exist independent of the Modification Center Contract” and

plaintiff was “asking the district court to decide what its contract rights

are”); United States v. Park Place Assocs., Ltd., 563 F.3d 907, 932 (9th

Cir. 2009) (“[T]he [Federal Arbitration Act] does not impose a

substantive duty on the United States to participate in arbitration or abide

by an arbitration award. That duty, if it exists, derives from the

contract.”); Ingersoll-Rand Co. v. United States, 780 F.2d 74, 77–80

14 CMTY. LEGAL SERVICES V. U.S. HHS

contrast, Plaintiffs do not “seek to enforce any duty imposed

upon [the Government] by the . . . only relevant contracts to

which [the Government] is a party.” Perry Cap. LLC v.

Mnuchin, 864 F.3d 591, 619 (D.C. Cir. 2017) (concluding

Tucker Act was inapplicable where “[t]he class plaintiffs

d[id] not contend Treasury breached the terms of the Stock

Agreements []or otherwise invoke them except to establish

that Treasury is a controlling shareholder”).

At bottom, Plaintiffs’ claims turn on the TVPRA, the

Foundational Rule, and the APA, not the terms or existence

of the Acacia contract. These are not contract claims in

disguise.

B.

The non-contractual source of Plaintiffs’ rights is

dispositive. See Megapulse, 672 F.2d at 971. In any event,

the second inquiry, “the type of relief sought,” also supports

jurisdiction in the district court. Id. at 968. Under this prong,

we assess whether the “complaint ‘in essence’ seeks

monetary relief.” Crowley, 38 F.4th at 1111 (quoting

Kidwell v. Dep’t of Army, Bd. for Corr. of Mil. Recs., 56 F.3d

279, 284 (D.C. Cir. 1995)). It does not.

Plaintiffs do not seek money damages for breach of

contract or the “explicitly contractual remedy of specific

performance.” Crowley, 38 F.4th at 1107 (internal quotation

marks and citation omitted). Plaintiffs requested an

(D.C. Cir. 1985) (concluding “the essential rights at stake [were]

contractual” where plaintiff’s claim distilled to the allegation that the

government “wrongful[ly] terminat[ed its] contract [with plaintiff] and

unlawful[ly] resolicitat[ed] . . . the contract,” and where plaintiff sought

as relief “an order reinstating the original award of the contract”);

Spectrum Leasing, 764 F.2d at 894 (“The [Act], even if it applied, confers

no such right in the absence of the contract itself.”).

CMTY. LEGAL SERVICES V. U.S. HHS 15

injunction preventing the Government “from ceasing to fund

counsel to represent unaccompanied children in violation of

the TVPRA and the Foundational Rule.” Plaintiffs did not

ask the court to reinstate the Acacia contract. Again,

Plaintiffs’ request is that the Government must take some

action to provide counsel for unaccompanied migrant

children. That someone need not be Acacia or Plaintiffs.

Nor does it matter that the declaratory and injunctive

relief Plaintiffs seek may result in payment of money to

them. As the Supreme Court has long held, “[t]he fact that a

judicial remedy may require one party to pay money to

another is not a sufficient reason to characterize the relief as

‘money damages.’” Bowen v. Massachusetts, 487 U.S. 879,

893 (1988). “[A] plaintiff does not ‘in essence’ seek

monetary relief . . . merely because he or she hints at some

interest in a monetary reward from the federal government

or because success on the merits may obligate the United

States to pay the complainant.” Tootle, 446 F.3d at 176

(emphasis in original) (quoting Kidwell, 56 F.3d at 284). A

plaintiff does not essentially seek money damages where, as

here, “any relief would not be determined by reference to the

terms of the contract,” but would instead exclusively depend

on the Government’s independent legal obligations. Perry

Cap., 864 F.3d at 619.

Plaintiffs do not seek reinstatement of the Acacia

contract. Rather, Plaintiffs challenge the Cancellation Order

because the Government had previously complied with the

TVPRA and the Foundational Rule solely through the

Acacia contract and failed to provide any meaningful

alternative to comply with the TVPRA and the Foundational

Rule. As the district court explained, the record indicates that

the Government put in “no effort to ensure pro bono

counsel” was available, Cmty. Legal Servs., 780 F. Supp. 3d

16 CMTY. LEGAL SERVICES V. U.S. HHS

at 922, and terminated all funding “with no supplemental

plan to ensure unaccompanied children have legal counsel”

at all, id. at 921. Thus, what Plaintiffs seek is for the

Government to comply with the TVPRA and the

Foundational Rule, not the reinstatement of this particular

contract.

Moreover, even if carrying out the Acacia contract was

the only practical way for the Government to comply with

the TVPRA and the Foundational Rule, that does not show

that Plaintiffs are seeking remedies that arise from the

Acacia contract. See Megapulse, 672 F.2d at 971 (“[T]he

mere fact that an injunction would require the same

governmental restraint that specific (non)performance might

require in a contract setting is an insufficient basis to deny a

district court the jurisdiction otherwise available . . . .”).

Rather, that would show only that the Acacia contract arises

from the Government’s antecedent obligation to comply

with the TVPRA and the Foundational Rule. Those

independent legal obligations are what Plaintiffs seek to

enforce, whatever the Government’s ultimate means of

compliance may be. 3

C.

The Supreme Court’s recent decision in NIH reinforces

this conclusion. There, the district court vacated two distinct

agency actions: (1) the issuance of guidance documents, and

(2) the termination of specific research grants pursuant to

3

As the D.C. Circuit explained in Megapulse, if “an agency action may

not be enjoined, even if in clear violation of a specific statute, simply

because that same action might also amount to a breach of contract,” then

“the government could avoid injunctions against activities violative of a

statutory duty simply by contracting not to engage in those activities.”

Megapulse, 672 F.2d at 971.

CMTY. LEGAL SERVICES V. U.S. HHS 17

that guidance. See NIH, 145 S. Ct. at 2661 (Barrett, J.,

concurring in partial grant of application for stay). The

Supreme Court determined that the Tucker Act subsumed

the plaintiffs’ APA challenge to the grant terminations. Id.

at 2658. But a majority of the Justices upheld the district

court’s exercise of jurisdiction over the plaintiffs’ APA

challenge to the guidance documents. Id. at 2661 (Barrett, J.,

concurring in partial grant of application for stay) (“The

Government is not entitled to a stay of the judgments insofar

as they vacate the guidance documents.”).

Unlike the plaintiffs in NIH, Plaintiffs here do not seek

the reinstatement of individual agreements between

Plaintiffs and the Government because no such agreements

exist. Rather, like the challenge to the guidance documents

in NIH, Plaintiffs challenge the Government’s broader

policy of non-compliance with the TVPRA and the

Foundational Rule through the complete termination of

funding combined with no specified alternative means of

compliance. That Plaintiffs’ challenge is “related to grants

does not transform a challenge” into “a claim ‘founded . . .

upon’ contract that only the [Court of Federal Claims] can

hear.” Id. (quoting 28 U.S.C. § 1491(a)(1)).

This case is consistent with the Supreme Court’s recent

decisions in NIH and Department of Education for yet

another reason. Unlike in those cases, Plaintiffs have no

contractual relationship with the Government.

“[T]he Court of Federal Claims can have exclusive

jurisdiction only with respect to matters that Congress has

proclaimed are within its jurisdictional compass.” Tootle,

446 F.3d at 176–77 (emphasis in original). “Under the

Tucker Act, the Court of Federal Claims has jurisdiction

only if there is privity of contract between plaintiffs and the

18 CMTY. LEGAL SERVICES V. U.S. HHS

government.” Park Props. Assocs., L.P. v. United States, 916

F.3d 998, 1002 (Fed. Cir. 2019). No such privity exists here

between Plaintiffs and the Government. 4 Thus, unlike the

claims in NIH and Department of Education, the Court of

Federal Claims’s jurisdiction does not cover this dispute. See

Crowley, 38 F.4th at 1109 (“Because a plaintiff could not

bring this type of tort action in [the Court of Federal Claims]

in the first place, that Court would not have exclusive

jurisdiction of them.”).

We disagree with our dissenting colleagues that

Plaintiffs have no right of action under the APA merely

because they are subcontractors. Dissent at 36. As we

explained above, Plaintiffs bring standard APA claims

grounded in the Government’s statutory and regulatory

obligations from the TVPRA and the Foundational Rule. It

is true that the APA does not “guarantee . . . a federal forum.”

Allen v. Milas, 896 F.3d 1094, 1099 (9th Cir. 2018). But the

APA embodies a “‘strong presumption’ favoring judicial

review of administrative action.” Mach Mining, LLC v.

E.E.O.C., 575 U.S. 480, 486 (2015) (citation omitted). To

overcome this presumption, the Government bears the

“heavy burden” to establish that the “statute’s language or

4

As the dissent notes, there are limited circumstances in which

subcontractors can bring claims in the Court of Federal Claims. See

NavCom Def. Elecs., Inc. v. Ball Corp., 92 F.3d 877, 879–80 (9th Cir.

1996) (explaining that “[a] subcontractor may assert a claim against the

government only by having the prime contractor ‘sponsor’ and certify

the subcontractor’s claim”). Those circumstances do not apply here.

“[T]o establish a pass-through claim,” the prime contractor must show it

is liable to subcontractors for “damages caused by the government’s

alleged breach.” Scott Timber Co. v. United States, 692 F.3d 1365, 1377

(Fed. Cir. 2012) (emphasis added). Again, in this case, there is no breach

of contract because the Government appears to have complied with all

terms of the Acacia contract.

CMTY. LEGAL SERVICES V. U.S. HHS 19

structure demonstrates that Congress wanted an agency to

police its own conduct,” and thus “‘prohibit[ed] all judicial

review’ of the agency’s compliance with a legislative

mandate.” Id. (quoting Dunlop v. Bachowski, 421 U.S. 560,

567 (1975)). The Government has not met that heavy burden

here.

The dissent’s reliance upon North Star Alaska v. United

States, 14 F.3d 36 (9th Cir. 1994), is unpersuasive. Dissent

at 36–37. That case involved a request for equitable

reformation of a contract between the plaintiff and the

Government. See North Star Alaska, 14 F.3d at 37–38. We

therefore held that “contract claims seeking equitable relief”

cannot be heard under the APA in light of the Tucker Act.

Id. at 38 (cleaned up). But it is one thing to say that a

particular remedy is unavailable where the Tucker Act

applies because the plaintiff may recover a different remedy

in the Court of Federal Claims. It is quite another to say that

an individual who cannot sue in the Court of Federal Claims

for any remedy also may not sue in district court.

We therefore reject the notion that two sovereign

immunity waivers, the Tucker Act and the APA, create a

jurisdictional Catch-22 in which no court can consider

Plaintiffs’ claims.

III.

Our court made the correct decision in denying en banc

review. To obtain a stay pending appeal, the Government

was required to make “a strong showing” that it will likely

succeed on the merits, that it will be irreparably harmed

absent a stay, and that the balance of the equities favors a

stay. Nken v. Holder, 556 U.S. 418, 434 (2009). In this

appeal, the Government’s merits arguments have been

limited solely to whether the district court had subject matter

20 CMTY. LEGAL SERVICES V. U.S. HHS

jurisdiction to entertain this appeal. For the reasons stated

above, as well as those stated in our opinion denying the

Government’s motion for a stay, the Government has failed

to make the required “strong showing” that it will likely

succeed on the merits of its jurisdictional argument. See

Cmty. Legal Servs., 137 F.4th at 936–42 (quoting Nken, 556

U.S. at 434).

We emphasize again that, unlike in NIH and Department

of Education, Plaintiffs have no contract with the

Government. Plaintiffs’ claims stem from the Government’s

failure to comply with its statutory obligations under the

TVPRA and regulatory obligations under the Foundational

Rule, not the Acacia contract. And Plaintiffs’ requested

relief “seek[s] to ensure representation for unaccompanied

children in immigration proceedings, regardless of which

lawyers provide it.” Cmty. Legal Servs., 780 F. Supp. 3d at

917. Such claims fall outside the jurisdictional bounds of the

Tucker Act and squarely within the purview of the APA.

CMTY. LEGAL SERVICES V. U.S. HHS 21

BUMATAY and VANDYKE, Circuit Judges, joined by

CALLAHAN, IKUTA, BENNETT, R. NELSON,

COLLINS, LEE, and BRESS, Circuit Judges, dissenting

from the denial of rehearing en banc:

The Supreme Court has warned against an “imperial

Judiciary.” Trump v. CASA, Inc., 606 U.S. 831, 858 (2025).

In recent times, the Court has repeatedly needed to dial back

lower court decisions that exceed the judiciary’s equitable

authority. See, e.g., Noem v. Nat’l TPS All., 606 U.S. __,

2025 WL 2812732 (Oct. 3, 2025) (Mem.); Noem v. Nat’l

TPS All., 145 S. Ct. 2728 (2025) (Mem.); Trump v. Am.

Fed’n of Gov’t Emps., 145 S. Ct. 2635 (2025) (Mem.);

McMahon v. New York, 145 S. Ct. 2643 (2025) (Mem);

Noem v. Doe, 145 S. Ct. 1524 (2025) (Mem.); Trump v.

Wilcox, 145 S. Ct. 1415 (2025). The Constitution and

Congress have placed significant constraints on the role of

the courts, and it is our duty to respect those limits. CASA,

606 U.S. at 858. For cases involving hot-button policy

issues, our review is often constrained—and sometimes

curtailed altogether. That means staying in our lane and

respecting our jurisdictional bounds. But once again, the

Ninth Circuit fails to respect our role and the Supreme

Court’s guidance.

In this case, the Executive Branch, through the

Department of Health and Human Services’ (“HHS”) Office

of Refugee Resettlement (“ORR”), used its regulatory

discretion to stop funding the Acacia Center for Justice, a

non-profit organization that subcontracts with other

organizations to provide legal representation to

unaccompanied minors in immigration proceedings. See 45

C.F.R. § 410.1309(a)(4). ORR stopped funding ongoing

work while the Executive Branch reviews the integrity of its

22 CMTY. LEGAL SERVICES V. U.S. HHS

multimillion-dollar payments to Acacia from its lump-sum

appropriation. Congress appropriates funding this way so

that the Executive can make these choices, for “the very

point of a lump-sum appropriation is to give an agency the

capacity to adapt to changing circumstances and meet its

statutory responsibilities in what it sees as the most effective

or desirable way.” Lincoln v. Vigil, 508 U.S. 182, 192

(1993).

In a familiar pattern, groups opposed to the Executive

Branch’s policies rushed to the federal courthouse in San

Francisco. This time, it was several subcontractors of

Acacia, the non-profit organization that had directly

contracted with the government (“Plaintiffs”). They argued

that the district court should force the government to

continue funding Acacia based on its contract with the

government. The district court agreed and enjoined the

government’s action. A divided panel of our court then

denied a stay pending appeal. See Cmty. Legal Servs. in E.

Palo Alto v. U.S. Dep’t of Health & Hum. Servs., 137 F.4th

932, 937 (9th Cir. 2025).

But the district court never had jurisdiction in this case.

No matter how hard we squint, we can’t avoid the fact that

this is a contract dispute. No statute or regulation entitles

Plaintiffs to funding. Instead, Plaintiffs simply want money

from the federal government based on the government’s

contract with the organization that Plaintiffs have

subcontracted with.

Under the Tucker Act, any plaintiff seeking more than

$10,000 in monetary relief founded upon a federal contract

must bring suit in the Court of Federal Claims. 28 U.S.C.

§§ 1346(a)(2), 1491(a)(1); see also Tucson Airport Auth. v.

Gen. Dynamics Corp., 136 F.3d 641, 646 (9th Cir. 1998)

CMTY. LEGAL SERVICES V. U.S. HHS 23

(Ҥ 1491 gives the Court of Federal Claims exclusive

jurisdiction to award money damages” over $10,000)

(emphasis added). Trying to avoid this requirement,

Plaintiffs dress their complaint up as an Administrative

Procedure Act (“APA”) challenge. But the APA doesn’t

waive the federal government’s sovereign immunity in

contract suits. See 5 U.S.C. § 702; see also N. Star Alaska

v. United States, 14 F.3d 36, 38 (9th Cir. 1994). Sure, in

some cases, it can be difficult to figure out whether a

plaintiff’s claim is grounded in contract. But this case isn’t

one of them. We never had jurisdiction over this matter, and

our job was simply to stay the lower court’s ultra vires

injunction.

Indeed, the Supreme Court has recently demonstrated

how we should handle cases like this. Just a few months ago,

the Court ruled in a case on all fours with this one. See Dep’t

of Educ. v. California, 604 U.S. 650, 652 (2025) (per

curiam). In that case, several States sued the federal

government to stop the termination of education-related

grants. The Court told us how to analyze these cases:

The APA’s waiver of sovereign immunity

does not apply “if any other statute that grants

consent to suit expressly or impliedly forbids

the relief which is sought.” Nor does the

waiver apply to claims seeking “money

damages.” . . . [T]he APA’s limited waiver

of immunity does not extend to orders “to

enforce a contractual obligation to pay

money” . . . . Instead, the Tucker Act grants

the Court of Federal Claims jurisdiction over

24 CMTY. LEGAL SERVICES V. U.S. HHS

suits based on “any express or implied

contract with the United States.”

Id. at 651 (simplified). The Supreme Court thus stayed the

injunction because “the Government [was] likely to succeed

in showing the District Court lacked jurisdiction to order the

payment of money under the APA.” Id.

While that’s the only direction we should need, we have

more. Several weeks ago, the Supreme Court made even

more clear how we should handle this case. The Court again

intervened to stay a district court injunction based on the

likely lack of jurisdiction in a government contract dispute.

See Nat’l Insts. of Health v. Am. Pub. Health Ass’n, 145 S.

Ct. 2658 (2025) (Mem.) (“NIH”). It held that Department of

Education controlled. Id. Two Justices observed that the

district court in NIH ignored Department of Education when

it “permitted a suit involving materially identical grants to

proceed to final judgment.” See id. at 2663 (Gorsuch, J.,

joined by Kavanaugh, J., concurring in part and dissenting

in part). Regardless of how it was framed, the core of the

suit alleged the unlawful termination of grants—“a breach of

contract claim.” Id. at 2665 (Kavanaugh, J. concurring in

part and dissenting in part). So the district court “likely

lacked jurisdiction,” and the suit “belong[ed] in the Court of

Federal Claims.” Id. at 2661 (Barrett, J., concurring).

We must follow the Supreme Court’s instructions. Even

though the Court’s “interim orders are not conclusive as to

the merits, they inform how a court should exercise its

equitable discretion in like cases.” Trump v. Boyle, 145 S.

Ct. 2653, 2654 (2025). It’s our duty to follow the Supreme

Court’s lead on how to exercise our equitable power. In

cases where a district court’s jurisdiction is likely wanting,

CMTY. LEGAL SERVICES V. U.S. HHS 25

as here, the Court has directed that we stay injunctions

against the Executive Branch.

The D.C. Circuit got the message after Department of

Education. See Widakuswara v. Lake, No. 25-5144, 2025

WL 1288817, at *3–4 (D.C. Cir. May 3, 2025) (per curiam)

(staying a district court injunction restoring grant funding

because of likely lack of jurisdiction). The First Circuit

didn’t. See Am. Pub. Health Ass’n v. Nat’l Insts. of Health,

145 F.4th 39, 52, 56 (1st Cir. 2025) (denying a stay despite

the jurisdictional questions). The Supreme Court,

unsurprisingly, stepped in and corrected the First Circuit.

NIH, 145 S. Ct. 2658.

In its statement respecting the denial of rehearing en

banc, the panel majority doubles down on Plaintiffs’

assertion that this is no contract case. Sure, Plaintiffs have

no direct contract with the government. But that’s because

they are subcontractors to the government. And, as we

discuss below, there is no subcontractor exception to the

Tucker Act. Nor can the panel majority ignore that the

Acacia contract is at the heart of Plaintiffs’ complaint—

expressly mentioned at least eleven times. See Compl. ¶¶

11, 39, 64, 65, 66, 88, 91, 95, 96, 131. The panel majority

also can’t skirt around the fact that Plaintiffs explicitly pled

that the cancellation of the Acacia contract was the direct

cause of their harm—causing them “to lay off employees

and lose huge percentages of their overall funding.” Id. ¶ 99.

See, e.g., id. ¶ 100 (one of the plaintiff’s alleging that

“funding for the services Defendants have illegally cancelled

makes up approximately 55% of [its] budget and pays for

113 of [its] approximately 200 employees.”).

Thus, the panel majority is simply wrong to say that

Plaintiffs’ alleged standing is based solely on organizational

26 CMTY. LEGAL SERVICES V. U.S. HHS

standing—that their harms arose “from the frustration of

their mission and diversion of resources.” As even the

district court conceded, “Plaintiffs have suffered near-

immediate financial impacts [from the Cancellation Order],

and they have thus made a sufficient showing of concrete

and imminent economic injury.” Cmty. Legal Servs. in E.

Palo Alto v. U.S. Dep’t of Health & Hum. Servs., 780 F.

Supp. 3d 897, 913 n.2 (N.D. Cal. 2025). Finally, the panel

majority can’t deny that the only way to remedy Plaintiffs’

injuries is to pay them for their services—in other words, to

reinstate the Acacia contract. Regardless of how the panel

majority dresses it, the source of Plaintiffs’ rights is the

Acacia contract and any remedy is a contract remedy. So

none of the facts of this case distinguish it from the binding

precedent of Department of Education and NIH.

We should have reheard this case en banc. No matter

how creatively pled, Plaintiffs’ claims are fundamentally

contract claims, and the district court lacked jurisdiction to

consider them. By refusing to rehear this case, our court lets

stand an injunction that violates the limits Congress has set

on our jurisdiction and interferes with the Executive’s

prerogative to set and review policies. We respectfully

dissent.

I.

Under the Trafficking Victims Protection

Reauthorization Act (“TVPRA”), HHS “shall ensure, to the

greatest extent practicable and consistent with [8 U.S.C.

§ 1362], that all unaccompanied alien children” in the

custody of HHS or the Department of Homeland Security

(“DHS”) “have counsel to represent them in legal

proceedings or matters.” 8 U.S.C. § 1232(c)(5). Within

HHS, ORR implements the TVPRA’s directives. Congress

CMTY. LEGAL SERVICES V. U.S. HHS 27

has funded ORR through lump-sum appropriations since

2012. That funding remains available through September

2027.

To further its responsibilities under the TVPRA, ORR

promulgated what is known as the Foundational Rule in

April 2024. The Foundational Rule fleshes out how ORR

will discharge its multiple responsibilities under the

TVPRA. It provides, “[t]o the extent ORR determines that

appropriations are available, and insofar as it is not

practicable for ORR to secure pro bono counsel, ORR shall

fund legal service providers to provide direct immigration

legal representation for certain unaccompanied children,

subject to ORR’s discretion and available appropriations.”

45 C.F.R. § 410.1309(a)(4).

In 2022, the Acacia Center for Justice contracted with

ORR to provide direct representation to unaccompanied

children. To fulfill its contractual obligations, Acacia hired

subcontractor organizations, including Plaintiffs. Earlier

this year, in February 2025, HHS issued a directive raising

concerns about “serious programmatic failures” in ORR’s

administration of “the Unaccompanied Alien Children

(UAC) Program.” Particularly, the directive cited the results

of a Florida grand-jury investigation, which found “sponsor

vetting failures, identity verification lapses, instances of

child trafficking, and fraud in the sponsorship process.” The

directive then required agency personnel to “briefly pause all

payments made . . . to contractors, vendors, and grantees

related to immigration and refugee settlement for internal

review for payment integrity.”

A month later, the government sent a letter to Acacia

partially terminating its contract “for the Government’s

convenience,” which eliminated ORR’s funding of counsel

28 CMTY. LEGAL SERVICES V. U.S. HHS

for unaccompanied children in removal proceedings

(“Cancellation Order”). The letter directed Acacia to

“immediately stop all work” on its contract, and Acacia

notified its direct-representation subcontractors on the same

day.

Almost immediately, the district court issued a

preliminary injunction forcing the government to continue

paying money to Acacia. The district court enjoined the

government from “withdrawing the services or funds

provided” by ORR, “particularly ORR’s provision of funds

for direct legal representation services to unaccompanied

children.” Cmty. Legal Servs., 780 F. Supp. 3d at 911. A

divided panel denied a stay of the preliminary injunction.

See Cmty. Legal Servs., 137 F.4th at 937. Judge Callahan

dissented, raising jurisdictional concerns and noting that,

even if the district court had jurisdiction, the law commits

funding decisions to “agency discretion.” Id. at 943

(Callahan, J., dissenting).

II.

We should’ve reheard this case en banc because the

government, at minimum, is likely to succeed in showing

that the district court lacked jurisdiction to order the

continued payment of the Acacia contract under the APA.

Federal courts are “courts of limited jurisdiction,” with

limitations imposed “by statute.” Royal Canin U.S.A., Inc.

v. Wullschleger, 604 U.S. 22, 26 (2025) (simplified). One

such statute is the Tucker Act, which precludes district court

jurisdiction over suits seeking to reinstate government

contract funding. 28 U.S.C. § 1491(a)(1). Instead, the

Tucker Act requires that such claims be brought in the Court

of Federal Claims. Id. And when “a federal court concludes

that it lacks subject-matter jurisdiction, the court must

CMTY. LEGAL SERVICES V. U.S. HHS 29

dismiss the complaint in its entirety.” Arbaugh v. Y&H

Corp., 546 U.S. 500, 514 (2006). That’s what the district

court should have done here.

Given that none of the other stay factors favor Plaintiffs,

see Nken v. Holder, 556 U.S. 418, 434 (2009), the panel

should have granted a stay here. When it didn’t, the full

court should have taken this case en banc.

A.

The District Court Lacked Jurisdiction over Plaintiffs’

Contract Claims

The Tucker Act grants the Court of Federal Claims

jurisdiction over claims against the government

“founded . . . upon any express or implied contract with the

United States.” 28 U.S.C. § 1491(a)(1). We have long

interpreted the Tucker Act to vest “exclusive jurisdiction”

over these claims and to bar invocation of the APA’s waiver

of sovereign immunity. See Tucson Airport Auth., 136 F.3d

at 646. So even if a breach-of-contract claim is “disguised”

as “an APA action seeking injunctive and declaratory relief,”

we’ve held that the Tucker Act “impliedly forbids” our

jurisdiction, so the suit must be brought in the Court of

Federal Claims. See United Aeronautical Corp. v. U.S. Air

Force, 80 F.4th 1017, 1025–26 (9th Cir. 2023) (simplified).

Since no federal law gives Plaintiffs the ability to enforce

any duty to fund legal representation for unaccompanied

children, their claim must be based in contract. Because

Plaintiffs’ claims don’t exist outside the Acacia contract, the

district court had no jurisdiction here.

30 CMTY. LEGAL SERVICES V. U.S. HHS

1.

The Tucker Act Precludes the APA’s Sovereign

Immunity Waiver

A suit may be brought against the United States “only if

Congress has waived sovereign immunity for the lawsuit,”

and a district court has jurisdiction over a suit “only if

Congress has provided for jurisdiction there.” Tucson

Airport Auth., 136 F.3d at 644 (simplified). One basis for

the waiver of sovereign immunity—the one Plaintiffs

invoke—is the APA. See 5 U.S.C. § 702. But the APA is

only a limited waiver of sovereign immunity. This waiver is

subject to three limitations: “(1) [the] claim must not seek

‘money damages’; (2) an adequate remedy for [the] claims

must not be available elsewhere; and (3) [the] claims must

not seek relief expressly or impliedly forbidden by another

statute.” United States v. Park Place Assocs., Ltd., 563 F.3d

907, 929 (9th Cir. 2009) (interpreting 5 U.S.C. § 702).

The question here is whether “another statute” bars the

waiver of sovereign immunity. The answer is yes—the

Tucker Act does. It’s well established that the Tucker Act

“‘impliedly forbids’ declaratory and injunctive relief” and

“precludes a § 702 waiver of sovereign immunity” on

contract claims over $10,000. Tucson Airport Auth., 136

F.3d at 646 (simplified). And this is true no matter how

plaintiffs dress up such a claim—even if they “formally

seek[] injunctive relief” under the APA, United Aeronautical

Corp., 80 F.4th at 1026, or the “complaint nowhere mentions

breach of contract,” Ingersoll-Rand Co. v. United States, 780

F.2d 74, 77 (D.C. Cir. 1985). The bottom line: “If rights and

remedies are statutorily or constitutionally based, then

district[] courts have jurisdiction; if rights and remedies are

CMTY. LEGAL SERVICES V. U.S. HHS 31

contractually based[,] then only the Court of Federal Claims

does.” United Aeronautical Corp., 80 F.4th at 1026.

To determine if a claim is really a disguised breach-of-

contract claim, we look to both “(1) the source of the rights

upon which the plaintiff bases its claims, and (2) the type of

relief sought (or appropriate).” Id. at 1026 (simplified). In

considering the “source of the rights,” we may examine

(a) whether “the plaintiff’s asserted rights and the

government’s purported authority arise from statute,”

(b) whether “the plaintiff’s rights exist prior to and apart

from rights created under the contract,” and (c) whether “the

plaintiff seeks to enforce any [contractual] duty imposed

upon the government.” Crowley Gov’t Servs. v. Gen. Servs.

Admin, 38 F.4th 1099, 1106–07 (D.C. Cir. 2022)

(simplified). The “type of relief sought” turns on whether a

claim “in essence” seeks more than $10,000 from the federal

government. Id. at 1107 (simplified).

2.

Plaintiffs’ Source of Rights and the Type of Relief

Sought Are Contractual

Plaintiffs are nonprofit organizations that have received

funding from HHS and ORR through Acacia to provide legal

representation to unaccompanied children. As Plaintiffs’

complaint asserts, the government sent “a notice terminating

the contract line items through which Defendants HHS and

ORR had provided funding for counsel for unaccompanied

children and ordering Plaintiffs to ‘immediately stop work’

on their ongoing funded representations.” For relief,

Plaintiffs seek to “[e]njoin [HHS and ORR] nationwide from

ceasing to fund counsel to represent unaccompanied

children.” No federal law or regulation entitles Plaintiffs to

payment for their work. They only received funding through

32 CMTY. LEGAL SERVICES V. U.S. HHS

a contract. Thus, the source of rights and type of relief

sought here are patently contractual.

Let’s look more closely at the Acacia contract. On

March 29, 2022, the Acacia Center for Justice entered a

contract with the government to fund its work to provide

representation to unaccompanied children. In that contract,

Acacia promised to provide “[f]ull legal representation for

children in and out of ORR custody, as well as other

nonrepresentation services such as ‘friend of court’ services

in hearings for unaccompanied children appearing in

immigration court or preparing forms without attorneys.” In

exchange, ORR promised to pay Acacia from its lump-sum

funds. Before the government terminated its funding,

Acacia met its contractual obligations through its

subcontractors, a network of 89 legal services organizations,

including Plaintiffs, in 159 offices across the country. Now,

Plaintiffs want to continue to be paid for the services they

used to provide as subcontractors under the Acacia contract.

All this points to the Acacia contract as the source of

Plaintiffs’ rights.

What’s more, Plaintiffs seek to enjoin the government

from ceasing payments for their legal services to

unaccompanied minors—meaning they seek reinstatement

of the Acacia contract. And an injunction to order specific

performance of a contract is a quintessential contract

remedy. Cf. Ingersoll-Rand, 780 F.2d at 79–80 (suggesting

that “the essence” of a claim is a “request for specific

performance of the original contract” when the “practical

result of granting plaintiff’s request for declaratory and

injunctive relief would be reinstatement of terminated

contracts”) (simplified). In response, Plaintiffs argue ORR

doesn’t necessarily need to follow the Acacia contract to

grant it relief, claiming that ORR could conceive of “non-

CMTY. LEGAL SERVICES V. U.S. HHS 33

contractual” remedies. But setting aside that this suggestion

is practically unrealistic, it would contradict the terms of the

district court’s injunction. Recall that the district court

enjoined the government from “withdrawing the services or

funds provided” by ORR, “particularly ORR’s provision of

funds for direct legal representation services to

unaccompanied children.” Cmty. Legal Servs., 780 F. Supp.

3d at 911. This order means that ORR can’t alter or

“withdraw” its preexisting relationship with Acacia—a

preexisting relationship that is clearly contractual.

Plaintiffs’ requested relief also targets the Cancellation

Order—further establishing the contractual nature of their

claim. Plaintiffs’ complaint seeks to “[s]et aside

Defendants’ actions that violate the APA,” and expressly

alleges that the “Cancellation Order” is an unlawful agency

action because it ends the Acacia contract. The Cancellation

Order that Plaintiffs expressly ask to be judicially stopped

pertains only to the partial termination of the Acacia

contract, again evincing that the type of relief sought by

Plaintiffs is grounded in contract.

Plaintiffs assert that their APA claims are premised on a

violation of the TVPRA and ORR’s Foundational Rule—not

the Acacia contract. But regardless of the government’s

obligations under either the TVPRA or the ORR—which do

not protect Plaintiffs—Plaintiffs can’t escape that their

claims “do not exist independent of the” Acacia contract and

that they “seek[] specific performance of the [Acacia]

contract.” Tucson Airport Auth., 136 F.3d at 647; see also

Ingersoll-Rand Co., 780 F.2d at 78 (holding that the

plaintiff’s claim that the government’s termination of a

contract “for convenience” violated two regulations did not

change the action’s fundamentally contractual character).

Therefore, their APA claims are necessarily “founded . . .

34 CMTY. LEGAL SERVICES V. U.S. HHS

upon [an] express or implied contract with the United

States.” 28 U.S.C. § 1491(a)(1). Indeed, under the APA, the

plaintiff must “suffer [a] legal wrong because of agency

action” or be “adversely affected or aggrieved by agency

action within the meaning of a relevant statute.” 5 U.S.C.

§ 702. And here, the alleged legal wrong or adverse effect

the district court sought to remedy was the government’s

termination of the Acacia contract. Boiled down, Plaintiffs’

only alleged injury and purported legal violation was the

cancellation of the Acacia contract. Thus, it follows that

Plaintiffs’ claims are contractually based.

NIH guides us on how to consider Plaintiffs’ claims. See

145 S. Ct. 2658. In that case, the plaintiffs alleged that the

government’s directives to terminate certain grants were

“unlawful agency-wide policies because they violate various

federal statutes and the Constitution,” and they argued that

the “[grant] terminations flowed directly from those

unlawful policies.” Nat’l Insts. of Health, 145 F.4th at 51.

Like here, the First Circuit refused to stay the injunction

because the plaintiffs’ claims didn’t require the district court

to “interpret the terms of any contracts between the parties.”

Id. at 52 n.5. Despite the claimed independent statutory

violations, the Supreme Court concluded that the APA’s

“‘limited waiver of [sovereign] immunity’ does not provide

the District Court with jurisdiction to adjudicate claims

‘based on’ the research-related grants or to order relief

designed to enforce any ‘obligation to pay money’ pursuant

to those grants.” NIH, 145 S. Ct. 2658 (quoting Dep’t of

Educ., 604 U.S. at 651). In fact, one of the NIH dissenting

opinions made the same arguments as Plaintiffs here—but

that reasoning was rejected by the Court. See NIH, 145 S.

Ct. at 2666 (Jackson, J., concurring in part and dissenting in

CMTY. LEGAL SERVICES V. U.S. HHS 35

part) (explaining that the NIH and related parties had a

statutory duty to provide funding).

And unlike NIH, in which the plaintiffs challenged both

internal agency guidance documents and the termination of

research grants, Plaintiffs here only challenge the

termination of the Acacia contract. In her concurrence,

Justice Barrett distinguished between “challenges to the

grant terminations, which belong in the Court of Federal

Claims[,]” and “vacatur of internal agency guidance,” which

are frequently litigated “on arbitrary-and-capricious grounds

in district court or directly in the D. C. Circuit.” 145 S. Ct.

at 2661. In NIH, the “internal guidance documents”

established the agency’s funding priorities, which included

defunding research related to DEI objectives, gender

identity, or COVID-19. Id. To Justice Barrett, “[b]oth logic

and law . . . support channeling challenges to the grant

terminations and guidance to different forums.” Id. Justice

Barrett explained that these two claims “are legally distinct”

and that vacating the guidance documents wouldn’t

necessarily reinstate the challenged grants. Id. Here,

Plaintiffs only challenged the Cancellation Order, which

terminated the Acacia contract. Plaintiffs don’t attack any

other internal agency guidance document, nor it is clear that

they would have constitutional and statutory standing to do

so. So under Justice Barrett’s concurrence, Plaintiffs’ claims

must be sent to the Court of Federal Claims.

Ignoring these jurisdictional limits, the panel majority

simply proclaimed that “[s]eeking to ensure compliance with

statutory and regulatory commands is a matter beyond the

scope of the Tucker Act’s exclusive jurisdiction.” Cmty.

Legal Servs., 137 F.4th at 938. But trying to dress up a

breach-of-contract claim in the guise of a broad statutory

claim is nothing new. Before, we’ve been able to ferret this

36 CMTY. LEGAL SERVICES V. U.S. HHS

out. See, e.g., Tucson Airport Auth., 136 F.3d at 647; Park

Place Assocs., 563 F.3d at 932; Ingersoll-Rand, 780 F.2d at

77. See also Spectrum Leasing Corp. v. United States, 764

F.2d 891, 894 (D.C. Cir. 1985); Widakuswara, No. 25-5144,

2025 WL 1288817, at *3–4. There is no excuse as to why

we failed to do so here.

3.

There is No Subcontractor Exception to the Tucker Act

The panel majority brushed aside these jurisdictional

concerns by creating a “subcontractor exception” to the

Tucker Act. According to the panel majority, because

subcontractors “generally have no right to sue under the

Tucker Act,” they must be allowed to bring an APA suit in

district court. Cmty. Legal Servs., 137 F.4th at 938–39. The

panel majority reasoned the “result” of following the Tucker

Act for subcontractors would be that “no court has

jurisdiction to hear plaintiffs’ claims,” which the panel says

conflicts with “common sense” and with the “strong

presumption favoring judicial review of administrative

action” under the APA. Id. at 939 (simplified). The panel

thus exempts subcontractors from the limits of the Tucker

Act. Id.

But that once again puts the cart before the horse. The

APA’s waiver of sovereign immunity is no “guarantee of a

federal forum.” Allen v. Milas, 896 F.3d 1094, 1099 (9th

Cir. 2018). It’s hornbook law that “the APA does not

provide an independent basis for subject matter jurisdiction

in the district courts.” Tucson Airport Auth., 136 F.3d at 645.

And we’ve previously rejected the panel majority’s

aggrandized view of the APA. In North Star Alaska, the

plaintiff made the same argument as Plaintiffs here: “that the

district court cannot refuse jurisdiction if there is no

CMTY. LEGAL SERVICES V. U.S. HHS 37

alternative forum available to hear [plaintiff’s] claim.” 14

F.3d at 38. But we expressly “decline[d] to overrule . . . [the]

very specific holdings that the APA does not waive

sovereign immunity for contract claims seeking equitable

relief.” Id. (simplified). It would make little sense to create

a subcontractor loophole when Congress expressly carved

out from the APA’s waiver of sovereign immunity claims

“expressly or impliedly forbid[den]” by “other statute[s].” 5

U.S.C. § 702. Indeed, whatever the presumption for judicial

review, it’s equally axiomatic that “a waiver of sovereign

immunity is to be strictly construed, in terms of its scope, in

favor of the sovereign.” Dep’t of Army v. Blue Fox, Inc., 525

U.S. 255, 261 (1999).

And we can’t just disregard the limits Congress placed

on contract suits through the Tucker Act. According to one

report from 2007, “the government had prime contracts with

approximately 169,000 different contractors.” James F.

Nagle & Jonathan A. DeMella, A Primer on Prime

Contractor-Subcontractor Disputes under Federal

Contracts, 46 PROCUREMENT LAW 12, 14 (Winter 2011). If

those prime contractors were allowed to sue the government,

that would be a “very large, but manageable” number of

suits. Id. But “[i]f subcontractors . . . were included” in the

right to sue, “millions of entities would have the ability to

sue the government directly.” Id. No wonder Congress

enacted the Tucker Act. Thus, we can’t allow subcontractors

to engage in “the creative drafting of complaints” to avoid

the statutory scheme for bringing contractual claims against

the government. See Crowley Gov’t Servs., 38 F.4th at 1107.

That the Tucker Act limits subcontractors’ ability to seek

relief is for Congress—not the courts—to address (if it

wishes). But we can’t take matters into our own hands and

make it easier for subcontractors to sue the government than

38 CMTY. LEGAL SERVICES V. U.S. HHS

contractors. That’s the result that flows from the panel

majority’s novel subcontractor exception. Now

subcontractors can bring suits arising out of government

contracts in any district court, including allowing them to

utilize the full array of equitable relief available to district

courts, while contractors are limited to the Court of Federal

Claims. See N. Star Alaska v. United States, 9 F.3d 1430,

1432 (9th Cir. 1993).

The panel majority also ignored that subcontractors are

not completely barred from bringing claims in the Court of

Federal Claims. “A subcontractor may assert a claim against

the government” if it “ha[s] the prime contractor ‘sponsor’

and certify the subcontractor’s claim.” NavCom Def. Elecs,

Inc. v. Ball Corp., 92 F.3d 877, 879–80 (9th Cir. 1996)

(citing Erickson Air Crane Co. v. United States, 731 F.2d

810, 813 (Fed. Cir. 1984); Federal Acquisition Regulation

44.203(c); Major John J. Thrasher, Subcontractor Dispute

Remedies: Asserting Subcontractor Disputes against the

Federal Government, 23 PUB. CONT. L.J. 39, 82–99 (1993));

see also United States v. Johnson Controls, Inc., 713 F.2d

1541, 1551 (Fed. Cir. 1983) (“establish[ing] the proposition

that there can be privity of contract between the government

and subcontractors where the prime contractor is a mere

government agent”); E.R. Mitchell Constr. Co. v. Danzig,

175 F.3d 1369, 1370 (Fed. Cir. 1999) (holding that a prime

contractor may sue the government on behalf of its

subcontractor, in the nature of a pass-through suit, for costs

incurred by the subcontractor). The fact that Plaintiffs failed

to bring their claims in conformity with the Tucker Act is not

an excuse to ignore our jurisdictional limits.

CMTY. LEGAL SERVICES V. U.S. HHS 39

4.

Department of Education and NIH Control This Case

Worst yet is our failure to follow the Supreme Court’s

decisions. In similar and controlling cases, the Court has

been forced to intercede again and again through interim

orders. As Justice Gorsuch observed, “[w]hatever their own

views, judges are duty-bound to respect ‘the hierarchy of the

federal court system created by the Constitution and

Congress.’” NIH, 145 S. Ct. at 2665 (Gorsuch, J.,

concurring in part and dissenting in part) (simplified). We

should be heeding that important admonition.

Department of Education controls this case. Its

instruction was clear: “the APA’s limited waiver of

immunity does not extend to orders to enforce a contractual

obligation to pay money . . . . Instead, the Tucker Act grants

the Court of Federal Claims jurisdiction over suits based on

any express or implied contract with the United States.” 604

U.S. at 651 (simplified).

The panel majority brushed Department of Education

aside, circularly reasoning in one line that “Department of

Education has no application where, as here, the claims

sound in statute, rather than contract.” Cmty. Legal Servs.,

137 F.4th at 939. That’s all the panel majority said on the

case.

But the panel majority ignored the fact that the plaintiffs

in Department of Education made the same argument that

Plaintiffs do here. There, the district court ruled that “the

‘essence’ of the action was not contractual in nature since

the source of the plaintiffs’ rights was in federal statute and

regulations and because the relief was injunctive in nature.”

California v. U.S. Dep’t of Educ., 769 F. Supp. 3d 72, 76 (D.

40 CMTY. LEGAL SERVICES V. U.S. HHS

Mass. 2025). The district court thus concluded it had

jurisdiction because “Plaintiff States have . . . sufficiently

shown that the dispute does not hinge on the terms of a

contract between the parties, but rather federal statute and

regulations put in place by Congress and the Department.”

Id. (simplified); see also California v. U.S. Dep’t of Educ.,

132 F.4th 92, 97 (1st Cir. 2025) (agreeing that the “States’

claims are, at their core, assertions that the Department acted

in violation of federal law—not its contracts”). Sound

familiar? It should, because that is precisely this case.

None of this fooled the Supreme Court. The Court saw

through the statutory dressing that the Department of

Education plaintiffs gave to their claim and recognized that

it was fundamentally contractual in nature. So the panel

majority was wrong to wave away Department of Education

by simply labeling this case as “statut[ory]” as opposed to

“contract[ual].” Cmty. Legal Servs., 137 F.4th at 939.

Department of Education and now NIH control this case.

Any claim based on an “express or implied contract with the

United States” must be brought in the Court of Federal

Claims. Dep’t of Educ., 604 U.S. at 651 (simplified).

Regardless of any purported violations of the TVPRA or the

Foundational Rule, Plaintiffs can’t hide that any obligation

to pay them was “based on” the Acacia contract.

III.

Our court should have stayed the district court’s

injunction. The government has shown that the district court

likely lacks jurisdiction over this case. The other

preliminary injunction factors—irreparable injury and the

public interest—are even more straightforwardly in the

government’s favor. The government suffers an irreparable

injury when it is forced to pay funds that it likely cannot

CMTY. LEGAL SERVICES V. U.S. HHS 41

recoup at the end of litigation. See Dep’t of Educ., 604 U.S.

at 651–52; see also NIH, 145 S. Ct. at 2658 (“[W]hile the

loss of money is not typically considered irreparable harm,

that changes if the funds cannot be recouped and are thus

irrevocably expended.”) (simplified). And Plaintiffs have

not represented that they would repay the government’s

money if the government were to ultimately prevail. See

NIH, 145 S. Ct. at 2658. Further, when a court “improperly

intrudes on a coordinate branch of the Government and

prevents the Government from enforcing its policies,” this is

a form of irreparable harm and against the public interest.

See CASA, Inc., 606 U.S. at 859 (simplified). The bottom

line is that all the Nken factors warrant a stay of the district

court’s injunction.

Plaintiffs have sought, and succeeded, in enjoining the

government from pausing its funding for direct legal

representation of unaccompanied minors. But any duty

ORR has to make those payments to Acacia is a creature of

contract. Though Plaintiffs style this suit as one premised

on the APA, “in essence” it’s contractual. This dispute

therefore belongs in the Court of Federal Claims, and we’re

powerless to hear it. This should have been a hard point to

miss, particularly given the Supreme Court’s recent

decisions. Even so, our court has decided against rehearing

this case. In doing so, we leave in place a novel and intrusive

injunction that the district court never had the authority to

enter.