Thakur v. Trump

FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 23 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NEETA THAKUR, on behalf of themselves No. 25-4249

and all others similarly situated; KEN D.C. No.

ALEX; NELL GREEN NYLEN; ROBERT 3:25-cv-04737-RFL

HIRST; CHRISTINE PHILLIOU; JEDDA

FOREMAN; ELI BERMAN; SUSAN

HANDY, AMENDED ORDER

Plaintiffs - Appellees,

v.

DONALD J. TRUMP, in his official

capacity as President of the United States;

UNITED STATES DEPARTMENT OF

GOVERNMENT EFFICIENCY; AMY

GLEASON, in her official capacity as

Acting Administrator of the Department of

Government Efficiency; NATIONAL

SCIENCE FOUNDATION; BRIAN

STONE, in his official capacity as Acting

Director of the National Science

Foundation; NATIONAL ENDOWMENT

FOR THE HUMANITIES; MICHAEL

MCDONALD, in his official capacity as

Acting Chairman of the National

Endowment for the Humanities; UNITED

STATES ENVIRONMENTAL

PROTECTION AGENCY; LEE ZELDIN,

in his official capacity as Administrator of

the U.S. Environmental Protection Agency;

UNITED STATES DEPARTMENT OF

AGRICULTURE; BROOKE ROLLINS, in

her official capacity as Secretary of the U.S.

Department of Agriculture; AMERICORPS,

aka the Corporation for National and

Community Service; JENNIFER

BASTRESS TAHMASEBI, in her official

capacity as Interim Agency Head of

AmeriCorps; UNITED STATES

DEPARTMENT OF DEFENSE; PETER

HEGSETH, in his official capacity as

Secretary of the U.S. Department of

Defense; UNITED STATES

DEPARTMENT OF EDUCATION;

LINDA MCMAHON, in her official

capacity as Secretary of the U.S.

Department of Education; UNITED

STATES DEPARTMENT OF ENERGY;

CHRIS WRIGHT, in his official capacity as

Secretary of Energy; UNITED STATES

DEPARTMENT OF HEALTH AND

HUMAN SERVICES; ROBERT F.

KENNEDY, Jr., in his official capacity as

Secretary of the U.S. Department of Health

and Human Services; UNITED STATES

CENTERS FOR DISEASE CONTROL;

MATTHEW BUZZELLI, in his official

capacity as Acting Director of the Centers

for Disease Control; UNITED STATES

FOOD AND DRUG ADMINISTRATION;

MARTIN A. MAKARY, in his official

capacity as Commissioner of the Food and

Drug Administration; UNITED STATES

NATIONAL INSTITUTES OF HEALTH;

JAYANTA BHATTACHARYA, in his

official capacity as Director of the National

Institutes of Health; INSTITUTE OF

MUSEUM AND LIBRARY SERVICES;

KEITH SONDERLING, in his official

capacity as Acting Director of the Institute

of Museum and Library Services; UNITED

STATES DEPARTMENT OF THE

INTERIOR; DOUG BURGUM, in his

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official capacity as Secretary of the Interior;

UNITED STATES DEPARTMENT OF

STATE; MARCO RUBIO, in his official

capacity as Secretary of the U.S.

Department of State; UNITED STATES

DEPARTMENT OF TRANSPORTATION;

SEAN DUFFY, in his official capacity as

Secretary for the U.S. Department of

Transportation,

Defendants - Appellants.

Appeal from the United States District Court

for the Northern District of California

Rita F. Lin, District Judge, Presiding

Argued and Submitted July 31, 2025

San Francisco, California

Before: Richard A. Paez, Morgan B. Christen, and Roopali H. Desai, Circuit

Judges.

CHRISTEN, Circuit Judge:

On June 23, 2025, the district court issued a class-wide preliminary

injunction ordering three government agencies to reinstate research grants the

agencies had terminated pursuant to certain Executive Orders. The government

appealed and moved for a partial stay pending appeal of the preliminary

injunction.1 We grant in part and deny in part the government’s motion.

1

The government’s motion for partial stay requested relief by August 4, 2025, but

did not invoke this court’s rule governing emergency motions. Fed. R. App. P. 27-

3. Instead, the government invoked Rule 27-1(3), which permits a movant to

request relief by a date certain to avoid irreparable harm. Fed. R. App. P. 27-1(3).

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FACTUAL BACKGROUND

Plaintiffs are six researchers at the University of California (UC) who

applied for and received multi-year federal research grants from three agencies: the

Environmental Protection Agency (EPA), the National Science Foundation (NSF),

and the National Endowment for the Humanities (NEH).2 On appeal, the

government moves for a stay of the injunction only as it pertains to the research

grants awarded by EPA and NEH, so we limit our discussion to those two

agencies.3

In April 2025, EPA and NEH sent form letters to Plaintiffs notifying them

that their grants were terminated. The EPA form letter states: “the award no longer

effectuates the program goals or agency priorities. The objectives of the award are

no longer consistent with EPA funding priorities.” The NEH form letter states:

“[y]our grant no longer effectuates the agency’s needs and priorities,” and informs

The motion did not explain the government’s need for a ruling by August 4, 2025.

At oral argument, however, the government stated that there was no specific reason

that relief was requested by that date, other than the general urgency to avoid

irreparable harm.

2

Plaintiffs have since amended their complaint to include additional plaintiffs who

received funding from other agencies.

3

On August 19, 2025, the government filed a citation of supplemental authorities

requesting that NSF join the arguments raised in the government’s motion to stay

the injunction. See Fed. R. App. P. 28(j). Because the government has not moved

for NSF to join that motion, we do not address the request here.

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the recipient that “NEH is repurposing its funding allocations in a new direction in

furtherance of the President’s agenda.”

Plaintiffs allege that these terminations resulted from agency implementation

of at least eight Executive Orders the President issued in January and February

2025: Executive Orders 14173, 14151, 14168, 14154, 14217, 14238, 14158, and

14222. Executive Orders 14173 and 14151 (the “DEI Executive Orders”) seek to

eliminate diversity, equity, and inclusion (“DEI”) and diversity, equity, inclusion,

and accessibility (“DEIA”) policies and initiatives from all aspects of the federal

government. More specifically, Executive Order No. 14173, Ending Illegal

Discrimination and Restoring Merit-Based Opportunity, states that “critical and

influential institutions of American society,” including the federal government and

institutions of higher education, “have adopted and actively use dangerous,

demeaning, and immoral race- and sex-based preferences under the guise of so-

called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and

accessibility’ (DEIA) that can violate the civil-rights laws of this Nation.” 90 Fed.

Reg. 8633, 8633 (Jan. 21, 2025). This Executive Order directs the Office of

Management and Budget (OMB) to “[e]xcise references to DEI and DEIA

principles under whatever name they may appear,” including federal grants. Id. at

8634. Executive Order No. 14151, Ending Radical and Wasteful Government DEI

Programs and Preferencing, instructs “each agency, department, or commission

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head,” to provide the director of OMB with a list of all “[f]ederal grantees who

received [f]ederal funding to provide or advance DEI, DEIA, or ‘environmental

justice’ programs, services, or activities since January 20, 2021.” 90 Fed. Reg.

8339, 8339–40 (Jan. 20, 2025). This Executive Order directs agency heads to

assess the operational impact and cost of those specified grants and recommend

action. Id. at 8340. It expressly directs agency heads to “terminate . . . all . . .

‘equity-related’ grants.” Id. at 8339. Similarly, Executive Order No. 14168, titled

Defending Women from Gender Ideology Extremism and Restoring Biological

Truth to the Federal Government, directs that “federal funds shall not be used to

promote gender ideology.” 90 Fed. Reg. 8615, 8616 (Jan. 20, 2025).

The remaining Executive Orders reflect the various mechanisms through

which the administration seeks to refocus or reduce government spending,

including the establishment of the Department of Government Efficiency (DOGE).

For example, Executive Orders 14217, 14158, and 14222 instruct OMB and

federal agencies to work with DOGE to review existing grants and terminate those

considered unnecessary in an effort to reduce federal spending. 90 Fed. Reg.

10577, 10577 (Feb. 19, 2025); 90 Fed. Reg. 8441, 8441 (Jan. 20, 2025); 90 Fed.

Reg. 11095, 11095–96 (Feb. 26, 2025).

PROCEDURAL HISTORY

Plaintiffs filed suit on behalf of a proposed class of similarly situated UC

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researchers against sixteen agencies, alleging that the mass termination of grants

violated separation of powers, the First and Fifth Amendments of the Constitution,

and the Administrative Procedure Act (APA). Plaintiffs sought an order vacating

the grant terminations and a preliminary injunction enjoining the agencies from

giving effect to those terminations.

The district court granted Plaintiffs’ motion for a preliminary injunction and

provisionally certified two classes of UC researchers: (1) those whose research

grants were terminated by form letter without any grant-specific explanation (the

“Form Termination Class”); and (2) those whose research grants were terminated

because of the DEI Executive Orders (the “DEI Termination Class”). The court

concluded that the Form Termination Class was likely to succeed on its claim that

the terminations were arbitrary and capricious, and that the DEI Termination Class

was likely to succeed on its claims that the terminations violated the First

Amendment and were contrary to the agencies’ congressionally mandated

directives. The government appealed and moved for a partial stay of the district

court’s injunction.

ANALYSIS

We consider four factors when we decide whether to stay an injunction

pending appeal: (1) has the stay applicant made a strong showing that she is likely

to succeed on the merits; (2) will the applicant be irreparably injured absent a stay;

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(3) will issuance of the stay substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies. Nken v. Holder, 556 U.S. 418,

434 (2009). The party seeking a stay pending appeal—here, the government—

bears the burden of establishing that these factors favor a stay. See id. at 433–34.

The government’s motion challenges the injunction only as it applies to the EPA

and NEH grants.

I. Likelihood of success on the merits

The government’s motion renews the arguments it made before the district

court that: (1) the district court lacks jurisdiction over the Form Termination

Class’s APA claim; (2) at least some members of the Form Termination Class lack

standing; and (3) Plaintiffs are not likely to succeed on the merits of their claims.

A. Jurisdiction over the Form Termination Class’s APA claim

The government argues that the Tucker Act precludes district court

jurisdiction over the Form Termination Class’s APA claim. In light of the Supreme

Court’s decision in National Institutes of Health v. American Public Health Ass’n

(NIH), 145 S. Ct. 2658 (2025), we agree.

The Tucker Act gives the Court of Federal Claims jurisdiction “to render

judgment upon any claim against the United States founded . . . upon any express

or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). Because this

statute “grants consent to suit” and “impliedly forbids” declaratory and injunctive

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relief, it precludes bringing contract claims against the United States in federal

district court pursuant to the APA’s waiver of sovereign immunity. 5 U.S.C. § 702.

See Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645–46 (9th Cir.

1998). In other words, for contract claims against the United States seeking more

than $10,000, the Tucker Act confers exclusive jurisdiction on the Court of Federal

Claims.4 Id.

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)). To

determine whether a claim is a disguised breach-of-contract claim, we apply the

Megapulse test, which considers: (1) the source of the rights upon which the

plaintiff bases its claims and (2) the type of relief sought (or appropriate). N. Star

Alaska v. United States, 14 F.3d 36, 37 (9th Cir. 1994). If the plaintiff’s rights and

remedies, as alleged, “are statutorily or constitutionally based, then district[] courts

have jurisdiction,” but if those rights and remedies “are contractually based then

4

Pursuant to the Little Tucker Act, district courts have “concurrent jurisdiction

with the claims court for actions not exceeding $10,000.” N. Star Alaska v. United

States, 9 F.3d 1430, 1432 (9th Cir. 1993) (en banc) (per curiam) (citing 28 U.S.C.

§ 1346(a)(2)).

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only the Court of Federal Claims does.” United Aeronautical, 80 F.4th at 1026

(emphasis in original).

We are bound by NIH, which held that the APA’s limited waiver of

sovereign immunity did “not provide the District Court with jurisdiction to

adjudicate” similar APA claims challenging grant terminations. 145 S. Ct. at 2658.

Here, the Form Termination Class challenges the government’s termination of

research grants as arbitrary and capricious under the APA. NIH held that similar

claims were “based on . . . research-related grants.” Id. (citation modified).

Further, the Form Termination Class sought—and the district court awarded—

vacatur of the termination notices and reinstatement of the terminated grants. NIH

held that such relief is “designed to enforce an[] obligation to pay money pursuant

to [the] grants” at issue. Id. (citation modified). Accordingly, we conclude the

government has made a strong showing that it is likely to establish that the district

court lacks jurisdiction to review the Form Termination Class’s APA claim.5

B. DEI Termination Class’s likelihood of success

The government argues that the district court abused its discretion when it

concluded that the DEI Termination Class was likely to succeed on the merits of its

5

Because we conclude the government is likely to prevail on its argument that the

district court lacks jurisdiction, we need not address whether the government is

likely to succeed in showing that members of the Form Termination Class lack

Article III standing, that the grant terminations are not reviewable under the APA,

or that the grant terminations were reasonable.

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First Amendment claim that the agencies unlawfully terminated their grants based

on their viewpoint. The government relies on the significant flexibility it is

afforded when acting as a patron to subsidize speech, as opposed to when it

regulates speech as a sovereign. The government argues that it “can, without

violating the Constitution, selectively fund a program to encourage certain

activities it believes to be in the public interest” to the exclusion of other activities.

Rust v. Sullivan, 500 U.S. 173, 193 (1991); Regan v. Tax’n With Representation of

Wash., 461 U.S. 540, 549–50 (1983). In support, the government relies on

National Endowment for the Arts v. Finley to argue that there is a First Amendment

violation only when the government uses its sovereign power to “drive ‘certain

ideas or viewpoints from the marketplace’”—not when the government simply

ceases funding those ideas or viewpoints. 524 U.S. 569, 587 (1998) (citation

omitted).

In our view, the government misreads Finley. There, Congress amended the

National Endowment for the Arts’s (NEA) reauthorization bill to require that grant

applications be evaluated by “taking into consideration general standards of

decency and respect for the diverse beliefs and values of the American public.” Id.

at 572 (citation omitted). The Plaintiffs, performance artists who applied for

grants, brought a facial challenge to the amendment and argued that it violated

their First Amendment rights. Id. at 577, 580. Importantly, the Plaintiffs “d[id]

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not allege discrimination in any particular funding decision,” and therefore, the

Supreme Court “ha[d] no occasion . . . to address an as-applied challenge in a

situation where the denial of a grant may be shown to be the product of invidious

viewpoint discrimination.” Id. at 586–87. The Court explained that “[i]f the NEA

were to leverage its power to award subsidies on the basis of subjective criteria

into a penalty on disfavored viewpoints, then [it] would confront a different case.”

Id. at 587. The Court went on to emphasize that “even in the provision of

subsidies, the Government may not ‘aim at the suppression of dangerous ideas.’”

Id. (emphasis added) (citation modified) (quoting Regan, 461 U.S. at 550).

Contrary to the government’s argument, this case does not appear to be one

in which an agency decided not to “fund a program.” See Rust, 500 U.S. at 193.

Rather, it is one in which more than a dozen agencies selected particular grants for

termination regardless of the programs through which they were funded, based on

their connection to DEI, DEIA, and environmental justice. Thus, we “confront a

different case” than Finley (where plaintiffs brought a facial challenge to

Congress’s mandate that NEA consider standards of decency in awarding grants),

Rust (where plaintiffs brought a facial challenge to HHS regulations interpreting

Title X’s prohibition on funding for abortion services), and Regan (where plaintiffs

brought a facial challenge to the IRS’s requirement that organizations refrain from

lobbying to qualify for § 501(c)(3) tax-exempt status). Plaintiffs’ as-applied

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challenge is closer to Rosenberger v. Rector and Visitors of University of Virginia,

515 U.S. 819 (1995). In that case, the University of Virginia made funds available

to cover printing costs for student newspapers. Id. at 843. The University denied a

Christian newspaper’s application for funds because the newspaper engaged in

“religious activity” by “promot[ing] or manifest[ing] a particular belie[f] in or

about a deity or an ultimate reality,” conduct prohibited by the University’s

guidelines for student activity funding. Id. at 827. The Court concluded that the

University “d[id] not exclude religion as a subject matter” but “select[ed] for

disfavored treatment those student journalistic efforts with religious editorial

viewpoints.” Id. at 831, 833, 835 (“[W]hen the State is the speaker, it may make

content-based choices,” but “[h]aving offered to pay the third-party contractors on

behalf of private speakers who convey their own messages, the [State] may not

silence the expression of selected viewpoints.”).

Here, the record at this stage shows that the agencies selected grants for

termination based on viewpoint. Indeed, at the oral argument held on July 31,

2025, the government did not meaningfully dispute that DEI, DEIA, and

environmental justice are viewpoints. The agencies, the termination letters, and

the Executive Orders do not define these terms, but dictionary definitions

demonstrate that DEI, DEIA, and environmental justice are not merely neutral

topics. Instead, the terms inherently convey the viewpoint that the exclusion of

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historically disadvantaged groups is undesirable. diversity, equity and inclusion,

Merriam-Webster, https://perma.cc/84ZW-7JSR (last visited Aug. 12, 2025) (“a set

of values and related policies and practices focused on establishing a group culture

of equitable and inclusive treatment and on attracting and retaining a diverse group

of participants, including people who have historically been excluded or

discriminated against”); diversity, equity and inclusion, Cambridge English

Dictionary, https://perma.cc/M2GS-L4UT (last visited Aug. 12, 2025) (“the idea

that all people should have equal rights and treatment and be welcomed and

included, so that they do not experience any disadvantage because of belonging to

a particular group, and that each person should be given the same opportunities as

others according to their needs”); environmental justice, Cambridge English

Dictionary, https://perma.cc/V5CK-Z2GP (last visited Aug. 12, 2025) (“the idea

that all groups of people deserve to live in a clean and safe environment”).

We are bound by the bedrock principle that the government cannot “leverage

its power to award subsidies on the basis of subjective criteria into a penalty on

disfavored viewpoints” or “aim at the suppression of dangerous ideas” in the

provision of subsidies. Finley, 524 U.S. at 587 (citation modified) (quoting Regan,

461 U.S. at 550). The government does not dispute that it terminated the subject

grants because they promoted DEI, DEIA, or environmental justice; instead, it

contends that government funding decisions need not be viewpoint neutral. We

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agree that the government enjoys broad discretion in choosing which programs to

fund, but we cannot reconcile the position the government advances here—that it is

free to terminate funding even when it does so based on viewpoint—with binding

Supreme Court authority. See id. We therefore conclude that the government has

failed to make a strong showing that the district court abused its discretion when it

concluded that the DEI Termination Class was likely to succeed on the merits of its

First Amendment claim.

The agencies’ implementation of the DEI Executive Orders reinforces our

conclusion. Acting Chairman of NEH Michael McDonald stated in a declaration

that, between January and April 2025, NEH staff reviewed open grants in light of

the DEI Executive Orders, and NEH’s “policy for selecting grants for termination

at NEH focused first on identifying open grants that focused on or promoted (in

whole or in part) ‘environmental justice,’ ‘diversity, equity, and inclusion,’ or

‘diversity, equity, inclusion and accessibility,’ and ‘gender ideology.’” NEH

created and used spreadsheets that identified grants as “either ‘High, Medium,

Low, or No Connection’ in terms of the Executive Orders.” Daniel Coogan,

Deputy Assistant Administrator for Infrastructure and Extramural Resources in the

EPA’s Office of Mission Support, stated in a June 2025 declaration that the grant

termination process “began by looking at grant titles and project descriptions.”

Although his declaration states that the EPA reviewed and terminated grants

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“independent from” the Executive Orders, the EPA’s public announcements state

the opposite. For example, on March 10, 2025, the EPA announced that it

“cancelled grants and contracts related to DEI and environmental justice.” EPA

Administrator Lee Zeldin Cancels 400+ Grants in 4th Round of Cuts with DOGE,

Saving Americans More than $1.7B, EPA (Mar. 10, 2025), https://perma.cc/3P2M-

6PUY.

Because the current record suggests that the government aimed at the

suppression of speech that views DEI, DEIA, and environmental justice favorably,

the government has not shown that it is likely to succeed on the merits of its claim

that the district court abused its discretion when it concluded the agencies likely

terminated the grants based on viewpoint.6

II. Remaining Nken factors

The government argues that the preliminary injunction risks irreparable

harm to the government and the public interest by: (1) interfering with the

6

Because we conclude the government failed to show that it was likely to succeed

on the merits of its claim that the district court abused its discretion when it

concluded that Plaintiffs were likely to succeed on their First Amendment claim,

we do not reach the government’s argument challenging the class’s claim that the

terminations were contrary to NEH’s enabling statute.

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President’s ability to carry out core Executive Branch policies, and (2) compelling

the government to disburse funds that it cannot recover.7

The government first argues the district court’s preliminary injunction will

interfere with the Executive Branch’s chosen policy agenda. This argument rests

on the assumption that the government’s conduct is lawful. But the government

has not made a strong showing of a likelihood of success on the merits in regard to

Plaintiffs’ First Amendment claim, and the government “cannot suffer harm from

an injunction that merely ends an unlawful practice.” Rodriguez v. Robbins, 715

F.3d 1127, 1145 (9th Cir. 2013). Moreover, we have rejected the assertion that “the

irreparable harm standard is satisfied by the fact of executive action alone.” Doe

#1 v. Trump, 957 F.3d 1050, 1059 (9th Cir. 2020). The government’s first claimed

harm is not irreparable because the government “may yet pursue and vindicate its

interests in the full course of this litigation.” Washington v. Trump, 847 F.3d 1151,

1168 (9th Cir. 2017) (per curiam).

The government also contends that it will be irreparably harmed because the

district court’s preliminary injunction requires it to disburse money it may never

recover. “[W]hile the loss of money is not typically considered irreparable harm,

that changes if the funds ‘cannot be recouped’ and are thus ‘irrevocably

7

To the extent the government argues that the third and fourth factors merge, that

is so when the government is the party opposing a stay, rather than the party

seeking one, as it is here. See Nken, 556 U.S. at 435.

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expended.’” NIH, 145 S. Ct. at 2658 (citation omitted). Here, as in NIH, the

government “faces such harm.” Id. Like the plaintiffs in NIH, Plaintiffs “do not

state that they will repay grant money if the Government ultimately prevails.” Id.

We consider the final two Nken factors “if the first two factors are satisfied.”

Doe #1, 957 F.3d at 1058. The government made such a showing as to the Form

Termination Class, but not as to the DEI Termination Class. See id.

We are mindful of the Supreme Court’s decision in NIH, where the Court

concluded that similar circumstances justified a stay. NIH, 145 S. Ct. at 2658.

Although such 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). We conclude that the public interest would be harmed by

requiring the agencies to continue to make payments pursuant to the grants, and

that despite the harms identified by Plaintiffs, due consideration of the Nken factors

warrants the entry of a stay as to the Form Termination Class. See NIH, 145 S. Ct.

at 2658.

CONCLUSION

The government’s motion for partial stay pending appeal (Dkt. No. 7) is

GRANTED in part as to the Form Termination Class and DENIED in part as to

the DEI Termination Class. We express no opinion on Plaintiffs’ remaining

constitutional and statutory claims, nor on whether it would be appropriate for the

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district court to certify other provisional classes based on those claims.

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