Pacito v. Trump

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PACITO; ESTHER; JOSEPHINE; Nos. 25-1313,

SARA; ALYAS; MARCOS; 25-1939

AHMED; RACHEL; ALI; HIAS,

INC.; CHURCH WORLD SERVICE,

D.C. No.

INC.; LUTHERAN COMMUNITY

2:25-cv-00255-

SERVICES NORTHWEST,

JNW

Plaintiffs - Appellees,

OPINION

v.

DONALD J. TRUMP, in his official

capacity as President of the United

States; MARCO RUBIO, in his

official capacity as Secretary of State;

KRISTI NOEM, in her official

capacity as Secretary of Homeland

Security; ROBERT F. KENNEDY

JR., in his official capacity as

Secretary of Health and Human

Services,

Defendants - Appellants.

Appeal from the United States District Court

for the Western District of Washington

Jamal N. Whitehead, District Judge, Presiding

2 PACITO V. TRUMP

Argued and Submitted September 3, 2025

Pasadena, California

Filed March 5, 2026

Before: Richard R. Clifton, Jay S. Bybee, and Kenneth K.

Lee, Circuit Judges.

Opinion by Judge Bybee;

Partial Dissent by Judge Lee

SUMMARY *

Immigration

The panel affirmed in part and reversed in part the

district court’s preliminary injunctions prohibiting

enforcement or implementation of Executive Order No.

14163, “Realigning the United States Refugee Admissions

Program,” 90 Fed. Reg. 8459 (Jan. 30, 2025), which

suspended the United States Refugee Admissions Programs

(“USRAP”), as well as related suspensions of funding for

USRAP.

Applying the factors set out in Winter v. Nat. Res. Def.

Council, 555 U.S. 7 (2008), for evaluating a preliminary

injunction, the panel reviewed the district court’s two broad

grounds for granting injunctive relief: (1) the executive order

was beyond the President’s statutory authority; and (2) the

*

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

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

PACITO V. TRUMP 3

State Department’s suspension of USRAP violated the

Administrative Procedure Act (“APA”).

The panel concluded that Plaintiffs failed to make a

strong showing that they are likely to succeed on the merits

of their challenges to Executive Order No. 14163 as beyond

the President’s statutory authority under 8 U.S.C. § 1182(f)

and the Refugee Act. As to the sections of the executive

order that suspend the admission of approved refugees to the

United States, the panel rejected the district court’s concerns

that the President impermissibly suspended USRAP in its

entirety and indefinitely. As to the section of the executive

order that suspends decisions on all applications for refugee

status, nothing in the Refugee Act directs the President to

continue to process applications while admissions have been

suspended.

Turning to Plaintiffs’ APA challenges to decisions to

defund various services offered under USRAP, the panel

addressed the Government’s arguments that these claims

were unreviewable. First, the Government argued that APA

does not provide an avenue for review because the Court of

Federal Claims has exclusive jurisdiction over the

organizational Plaintiffs’ claims under the Tucker

Act. Rejecting that contention, the panel concluded that

neither the source of the rights upon which Plaintiffs based

their claims nor the relief sought sounded in contract.

Next, the Government argued that the actions of the

President and the agencies were not reviewable because the

“agency action is committed to agency discretion by law.” 5

U.S.C. § 701(a)(2). Reasoning that the Refugee Act is quite

specific in describing the programs for refugee resettlement,

the panel concluded that the Government had not rebutted

the strong presumption favoring judicial review.

4 PACITO V. TRUMP

Finally, the Government argued that there is no “final

agency action” to review.” 5 U.S.C. § 704. The panel

agreed that the executive order itself is not subject to APA

review because the President is not an agency within the

meaning of the APA. With respect to the agencies’ decision

to defund the refugee program, the panel rejected the

argument that there was no final agency action because the

State Department ultimately terminated funding.

Turning to the merits of Plaintiffs’ APA challenges, the

panel could not conclude that it was arbitrary and capricious

or otherwise not in accordance with the Refugee Act for the

State Department to defund overseas operations. The panel

saw no reason why the State Department should be required

to maintain an overseas structure capable of processing tens

of thousands of applications when the executive order has

limited entry to case-by-case consideration.

Next, the panel concluded that the district court did not

abuse its discretion in concluding that the Government likely

acted contrary to law by failing to provide statutorily

mandated services to refugees already admitted to the United

States. The panel also concluded that the termination of

cooperative agreements with resettlement support centers

was likely arbitrary and capricious because the Government

failed to provide reasoned explanations, factual findings, or

bases for the termination, and also terminated the

cooperative agreements without first considering the

reliance interests of individual refugees.

Turning to the remaining Winter factors with respect to

Plaintiffs’ APA challenge to the defunding of domestic

resettlement services, the panel concluded that those factors

also weighed in Plaintiffs’ favor.

PACITO V. TRUMP 5

With respect to the scope of relief, the Government

argued that the district court’s injunctions are so overly

broad as to constitute “universal injunctions” that run afoul

of Trump v. CASA, Inc., 606 U.S. 831 (2025). Because

CASA did not affect district courts’ ability to issue class-

wide injunctive relief and a class had been certified in this

case, the panel concluded that the district court’s injunctions

complied with CASA.

Dissenting in part, Judge Lee disagreed on two

points. First, Judge Lee did not think the court had

jurisdiction over the organizational plaintiffs’ claims

because they are breach-of-contract claims seeking money

from the federal government and thus must be heard by the

Court of Federal Claims. Second, even assuming

jurisdiction, the better reading of the statutory provisions is

that the United States has discretion whether to fund these

services.

Judge Lee also wrote separately to highlight that district

courts cannot stand athwart, yelling “stop” just because they

genuinely believe they are the last refuge against policies

that they deem to be deeply unwise. Otherwise, the courts

risk inching towards an imperial judiciary that lords over the

President and Congress.

6 PACITO V. TRUMP

COUNSEL

Linda B. Evarts (argued), Mevlüde A. Alp, Pedro Sepulveda

Jr., and Deepa Alagesan, International Refugee Assistance

Project, New York, New York; Melissa S. Keaney (argued),

International Refugee Assistance Project, Fair Oaks,

California; Laurie B. Cooper, International Refugee

Assistance Project, Washington, D.C.; Megan M. Hauptman

and Laurie B. Cooper, International Refugee Assistance

Project, Washington, D.C.; Harry H. Schneider Jr., Jonathan

P. Hawley, and Shireen Lankarani, Perkins Coie LLP,

Seattle, Washington; Joel W. Nomkin, Perkins Coie LLP,

Phoenix, Arizona; John M. Devaney, Perkins Coie LLP,

Washington, D.C.; Nicholas J. Surprise, Perkins Coie LLP,

Madison, Wisconsin; for Plaintiffs-Appellees.

Tiberius T. Davis (argued), August E. Flentje, Joseph

McCarter, Lindsay W. Zimliki, Jason K. Zubata, Ilana

Kramer, and Alexandra Yeatts, Trial Attorneys; Office of

Immigration Litigation, Civil Division; David Kim, Senior

Litigation Counsel; Drew C. Ensign, Deputy Assistant

Attorney General; Yaakov M. Roth, Principal Deputy

Assistant Attorney General; Ernesto H. Molina, Deputy

Director; Brett A. Shumate, Assistant Attorney General;

United States Department of Justice, Washington, D.C.; for

Defendant-Appellants.

Elizabeth B. Wydra, Brianne J. Gorod, Miriam Becker-

Cohen, and Nina G. Henry, Constitutional Accountability

Center, Washington, D.C., for Amicus Curiae Constitutional

Accountability Center.

Andrew L. Schlafly, Far Hills, New Jersey, for Amici Curiae

Immigration Reform Law Institute.

PACITO V. TRUMP 7

Fawn J. Rajbhandari-Korr, Lindsay Nako, and Lori Rifkin,

Impact Fund, Berkeley, California, for Amici Curiae The

Impact Fund, Justice in Aging, Refugee and Immigrant

Center for Education, Centro Legal de la Raza, Contra Costa

Senior Legal Services, Diverse Elders Coalition, La Raza

Centro Legal, Oasis Legal Services, Self-Help for the

Elderly, and Southeast Asia Resource Action Center.

Hannah C. Vail and Brett M. Gannon, Assistant Attorneys

General; Elizabeth D. Matos, Chief, Civil Rights Division;

Tasha J. Bahal, Deputy Solicitor General; Andrea J.

Campbell, Commonwealth of Massachusetts Attorney

General; Office of the Commonwealth of Massachusetts

Attorney General, Boston, Massachusetts; Emma Grunberg,

Kelly A. Paradis, and Cristina Sepe, Deputy Solicitors

General; Nicholas W. Brown, Washington Attorney

General; Office of the Washington Attorney General,

Olympia, Washington; Kristin K. Mayes, Arizona Attorney

General, Office of the Arizona Attorney General, Phoenix,

Arizona; Rob Bonta, California Attorney General, Office of

the California Attorney General, Sacramento, California;

Philip J. Weiser, Colorado Attorney General, Office of the

Colorado Attorney General, Denver, Colorado; William

Tong, Connecticut Attorney General, Office of the

Connecticut Attorney General, Hartford, Connecticut;

Kathleen Jennings, Delaware Attorney General, Office of

the Delaware Attorney General, Wilmington, Delaware;

Anne E. Lopez, Hawai‘i Attorney General, Office of the

Hawai‘i Attorney General, Honolulu, Hawai‘i; Kwame

Raoul, Illinois Attorney General, Office of the Illinois

Attorney General, Chicago, Illinois; Aaron M. Frey, Maine

Attorney General, Office of the Maine Attorney General,

Augusta, Maine; Anthony G. Brown, Maryland Attorney

General, Office of the Maryland Attorney General,

8 PACITO V. TRUMP

Baltimore, Maryland; Dana Nessel, Michigan Attorney

General, Office of the Michigan Attorney General, Lansing,

Michigan; Keith Ellison, Minnesota Attorney General,

Office of the Minnesota Attorney General, St. Paul,

Minnesota; Aaron D. Ford, Nevada Attorney General, Office

of the Nevada Attorney General, Carson City, Nevada;

Matthew J. Platkin, New Jersey Attorney General, Office of

the New Jersey Attorney General, Trenton, New Jersey;

Letitia James, New York Attorney General, Office of the

New York Attorney General, New York, New York; Dan

Rayfield, Oregon Attorney General, Office of the Oregon

Attorney General, Salem, Oregon; Peter F. Neronha, Rhode

Island Attorney General, Office of the Rhode Island

Attorney General, Providence, Rhode Island; Joshua L.

Kaul, Wisconsin Attorney General, Office of the Wisconsin

Attorney General, Madison, Wisconsin; for Amici Curiae

The State of Washington, Commonwealth of Massachusetts,

and States of Arizona, California, Colorado, Connecticut,

Delaware, Hawai‘i, Illinois, Maine, Maryland, Michigan,

Minnesota, Nevada, New Jersey, New York, Oregon, Rhode

Island, Vermont, and Wisconsin.

Matthew Z. Crotty, Riverside NW Law Group PLLC,

Spokane, Washington, for Amici Curiae Refugees

International.

Clara J. Shin, Covington & Burling LLP, San Francisco,

California; Michael E. Cunniff and Aparna Sundaram,

Covington & Burling LLP, New York, New York; Alexis N.

Dyschkant and Evan K.W. Matsuda, Covington & Burling

LLP, Washington, D.C.; for Amici Curiae Former U.S.

Government Officials.

Linda Dakin-Grimm, Milbank LLP, Los Angeles,

California; Atara Miller, Victor Hollenberg, and Alex

PACITO V. TRUMP 9

Ruppert, Milbank LLP, New York, New York; for Amici

Curiae Bet Tzedek Legal Services and Faith-Based

Organizations.

Gregory L. Diskant, Jonah Wacholder, Ian D. Eppler, and

Colleen Anderson, Patterson Belknap Webb & Tyler LLP,

New York, New York, for Amici Curiae Ethiopian

Community Development Council and Lutheran Services

Carolinas.

Sarah M. Rich and Somil B. Trivedi, Democracy Forward

Foundation, Washington, D.C.; Sunil R. Varghese, Refugee

Council USA, Washington, D.C.; for Amicus Curiae

Refugee Council USA.

10 PACITO V. TRUMP

OPINION

BYBEE, Circuit Judge:

On January 20, 2025, the President issued Executive

Order No. 14163, “Realigning the United States Refugee

Admissions Program.” 90 Fed. Reg. 8459 (Jan. 20, 2025).

Pursuant to 8 U.S.C. §§ 1182(f) and 1185(a), the President

determined that “entry into the United States of refugees

under the [United States Refugee Admissions Program

(USRAP)] would be detrimental to the interests of the

United States” and directed that “entry into the United States

of refugees under the USRAP be suspended” pending further

findings. Exec. Order. No. 14163, § 3(a). In response to the

Executive Order, the Department of State suspended all

funding of the USRAP program, purportedly pursuant to a

different executive order entitled “Reevaluating and

Realigning United States Foreign Aid.” Exec. Order No.

14169, 90 Fed. Reg. 8619 (Jan. 20, 2025). Pending further

review, this included the suspension of funding for

(1) processing applications from persons outside the United

States seeking refugee status here and (2) domestic

resettlement services for refugees admitted to the United

States.

Plaintiffs are refugees who have been recently admitted

to the United States; refugees who have been approved for

resettlement in the United States but remain outside the

country; U.S.-based individuals seeking admission for their

family members or sponsees; and three organizations that

had cooperative agreements with the State Department to

provide overseas processing and domestic resettlement

services. Plaintiffs allege that Executive Order No. 14163’s

suspension of the refugee program violates the Refugee Act

PACITO V. TRUMP 11

of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified in

various provisions of the Immigration and Nationality Act, 8

U.S.C. §§ 1101 et seq.), and that the defunding of USRAP

violates various provisions of the Administrative Procedure

Act, 5 U.S.C. § 551 et seq. The district court issued two

preliminary injunctions prohibiting the enforcement or

implementation of §§ 3(a), (b), (c), and 4 of Executive Order

No. 14163 and the suspension of USRAP funding and

reinstating the terminated cooperative agreements. The

Government sought review.

Our task is to determine whether the President’s actions

were within the statutory authority granted him under the

INA. Whether we agree with those actions is beside the

point: “The wisdom of the policy choices made by [the

President] is not a matter for our consideration.” Sale v.

Haitian Centers Council, Inc., 509 U.S. 155, 165 (1993).

“We do not sit as a committee of review . . . .” TVA v. Hill,

437 U.S. 153, 194–95 (1978). We conclude that, with one

exception, Plaintiffs have not made the requisite showing

that they are likely to succeed on the merits. We thus vacate

the preliminary injunctions in large measure.

I. BACKGROUND

A. Constitutional and Statutory Background

In this section, we first review the constitutional

framework for the power of the political branches to regulate

the admission of aliens to the United States. We then

consider the statutory authorities and describe how USRAP

works in practice. Because of the breadth of Plaintiffs’

challenge and the complexity of USRAP, we set this forth in

some detail.

12 PACITO V. TRUMP

1. Constitutional Framework

It has long been “an accepted maxim of international law,

that every sovereign nation has the power, as inherent in

sovereignty, and essential to self-preservation, to forbid the

entrance of foreigners within its dominions, or to admit them

only in such cases and upon such conditions as it may see fit

to prescribe.” Nishimura Ekiu v. United States, 142 U.S.

651, 659 (1892). It is beyond dispute that “[t]he exclusion

of aliens is a fundamental act of sovereignty.” U.S. ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); see

Landon v. Plasencia, 459 U.S. 21, 32 (1982). The

Constitution commits this “broad, undoubted power over the

subject of immigration and the status of aliens” to Congress

and the President. Arizona v. United States, 567 U.S. 387,

394 (2012); see also Fiallo v. Bell, 430 U.S. 787, 792 (1977).

Congress wields the bulk of this power. The Constitution

vests in Congress the power “[t]o establish an uniform rule

of Naturalization,” U.S. Const. art. I, § 8, cl. 4, to “regulate

Commerce with foreign Nations,” id. art. I, § 8, cl. 3, and to

“declare War,” id. art. I, § 8, cl. 11, facilitated by the more

general power “[t]o make all Laws which shall be necessary

and proper for carrying into Execution the foregoing

Powers,” id. art. I, § 8, cl. 18. The Supreme Court has long

read these provisions as granting Congress plenary power to

establish the country’s substantive immigration policy. See

Ekiu, 142 U.S. at 659; see also INS v. Chadha, 462 U.S. 919,

940 (1983) (“The plenary authority of Congress over aliens

under Art. I, § 8, cl. 4 is not open to question . . . .”); Fiallo,

430 U.S. at 792 (“‘[O]ver no conceivable subject is the

legislative power of Congress more complete than it is over’

the admission of aliens.”) (quoting Oceanic Navigation Co.

v. Stranahan, 214 U.S. 320, 339 (1909)).

PACITO V. TRUMP 13

That said, the power to exclude aliens “stems not alone

from legislative power but is inherent in the executive power

to control the foreign affairs of the nation.” Knauff, 338 U.S.

at 542. Although “the source of the President’s power to act

in foreign affairs does not enjoy any textual detail,” Am. Ins.

Ass’n v. Garamendi, 539 U.S. 396, 414 (2003), it flows

generally from the President’s duty to “receive Ambassadors

and other public Ministers,” U.S. Const. art. II, § 3, and

secondarily from the President’s role as “Commander in

Chief,” id. art. II, § 2, cl. 1, the Vesting Clause, id. art. II, § 1,

cl. 1, and the President’s broad responsibility to “take Care

that the Laws be faithfully executed,” id. art. II, § 3; see also

Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 33–34

(2015). Indeed, “Article II of the Constitution has

recognized the President’s ‘vast share of responsibility for

the conduct of our foreign relations.’” Garamendi, 539 U.S.

at 414 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 610–11 (1952) (Frankfurter, J., concurring)).

Whether or not the President has authority independent of

Congress to authorize or forbid the admission of aliens, “the

decision to admit or to exclude an alien may be lawfully

placed with the President.” Knauff, 338 U.S. at 543.

The precise steps for this constitutional choreography are

not critical to our decision. In general, Congress, possessing

plenary “power to set the procedures to be followed in

determining whether an alien should be admitted,” DHS v.

Thuraissigiam, 591 U.S. 103, 139 (2020), determines who is

admissible, under what terms they may be admitted, and

under what conditions they may be excluded or removed.

See Mathews v. Diaz, 426 U.S. 67, 82–83 (1976); Galvan v.

Press, 347 U.S. 522, 531 (1954). The President, possessing

the discretion to admit or exclude aliens when Congress has

14 PACITO V. TRUMP

delegated him the power to do so, executes the policy. See

Trump v. Hawaii, 585 U.S. 667, 683–85 (2018).

2. Statutory Background

a. The Immigration and Nationality Act

Admission of refugees. Congress enacted the

Immigration and Nationality Act of 1952 (INA), codified at

8 U.S.C. § 1101 et seq., to establish “a comprehensive and

complete code covering all aspects of admission of aliens to

this country.” Elkins v. Moreno, 435 U.S. 647, 664 (1978);

see also Immigration and Nationality Act, U.S. Citizenship

& Immigr. Servs. (last updated July 10, 2019),

https://perma.cc/J6DK-B6LG (in enacting the INA,

Congress “collected many provisions and reorganized the

structure of immigration law”). Through the INA, Congress

prescribed the terms on which aliens may be admitted to the

United States, the conditions under which they may remain

within its borders, and the requirements for aliens to become

naturalized as U.S. citizens. See 8 U.S.C. § 1101 et seq.

The INA defines an “alien” as “any person not a citizen

or national of the United States.” 8 U.S.C. § 1101(a)(3).

“The terms ‘admission’ and ‘admitted’” refer to “the lawful

entry of [an] alien into the United States.” Id.

§ 1101(a)(13)(A) (emphasis added). In general, to qualify

for entry, an alien must apply for admission, be approved for

an immigrant visa, and present specified travel or

identification documents. See 8 U.S.C. § 1181(a).

Section 1182 of the INA details various conditions under

which an alien may be ineligible for admission. See id.

PACITO V. TRUMP 15

§ 1182(a)(1)–(10) (defining “[c]lasses of aliens ineligible for

visas or admission”). It further provides:

Whenever the President finds that the entry

of any aliens or of any class of aliens into the

United States would be detrimental to the

interests of the United States, he may by

proclamation, and for such period as he shall

deem necessary, suspend the entry of all

aliens or any class of aliens as immigrants or

nonimmigrants, or impose on the entry of

aliens any restrictions he may deem to be

appropriate.

8 U.S.C. § 1182(f).

Congress has amended the INA several times over the

years. Particularly relevant to this appeal, the Refugee Act

of 1980 amended the INA “to revise the procedures for the

admission of refugees” and to “establish a more uniform

basis for the provision of assistance to refugees.” Pub. L.

No. 96-212, 94 Stat. 102 (1980). In the years leading up to

the Refugee Act’s passage, refugee admission policy had

been “reactive and piecemeal as it grew in response to

humanitarian crises and ethnic conflicts.” Policy Manual

Chapter 1 - Purpose and Background, U.S. Citizenship &

Immigr. Servs. (last updated Dec. 12, 2025),

https://perma.cc/XQ6K-3XKN. In an attempt to address

these issues, Congress passed the Refugee Act to establish

“a permanent and systematic procedure for the admission to

this country of refugees of special humanitarian concern to

the United States, and to provide comprehensive and

uniform provisions for [their] effective resettlement.” Pub.

L. No. 96-212, § 101(b), 94 Stat. at 102.

16 PACITO V. TRUMP

To accomplish this end, the Refugee Act made a number

of changes to the INA. First, it established a uniform

definition for “refugee” as a person who (1) “is outside any

country of such person’s nationality” and (2) “is unable or

unwilling to return to, and is unable or unwilling to avail

himself or herself of the protection of, that country”

(3) “because of persecution or a well-founded fear of

persecution on account of race, religion, nationality,

membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42).

Importantly, the Refugee Act exempted aliens who

qualify as “refugees” from the standard visa requirement and

admission procedures specified in the INA. 8 U.S.C.

§ 1181(c) (“The provisions of subsection (a) shall not apply

to an alien whom the Attorney General admits to the United

States under section 1157 of this title.”). Instead, the Act

created a separate, comprehensive framework for the

processing, admission, and resettlement of refugees. See

generally 8 U.S.C. §§ 1157, 1521–24.

Section 1157 of the INA lays out the process for

admitting refugees to the United States. It provides

procedures for determining an annual “[m]aximum number

of admissions,” for increasing that number in the case of

unforeseen emergency refugee situations, and for allocating

admissions among refugees. See 8 U.S.C. § 1157(a)–(c).

Specifically, it provides that “the number of refugees who

may be admitted” each year “shall be such number as the

President determines, before the beginning of the fiscal year

and after appropriate consultation” with Congress. Id.

§ 1157(a)(2).

For purposes of the Refugee Act, “appropriate

consultation” requires in-person discussions between

PACITO V. TRUMP 17

“designated Cabinet-level representatives of the President

with members of the Committees on the Judiciary of the

Senate and of the House of Representatives.” Id. § 1157(e).

These parties must “discuss the reasons for believing that the

[President’s] proposed admission of refugees is justified,”

and the President’s representatives must provide Congress

with various sets of descriptions, analyses, and other

information. Id. The “substance of such consultation” must

be published, id. § 1157(d)(2), and a hearing must generally

be held “to review the proposed” number of refugee

admissions, id. § 1157(d)(3)(A).

After this consultation, individual refugee admissions

are “allocated among refugees of special humanitarian

concern to the United States.” Id. § 1157(a)(3). 1 Subject to

the “numerical limitations” determined by the President, the

Attorney General is then authorized to, in his or her

“discretion and pursuant to such regulations as the Attorney

General may prescribe, admit any refugee who” is: (1) “not

firmly resettled in any foreign country”; (2) “determined to

be of special humanitarian concern to the United States”; and

(3) is otherwise “admissible.” Id. § 1157(c)(1).

Section 1157(c) also creates a special class of “follow-

to-join” refugees. It provides that the spouse or child of a

principal refugee shall “be entitled to the same admission

status” as the principal refugee so long as the spouse or child

is “accompanying, or following to join, such refugee” and

the spouse or child is otherwise “admissible” under the INA.

Id. § 1157(c)(2)(A). The admission of such a spouse or child

“shall be charged against the numerical limitation

1

The President may also increase the number of annual refugee

admissions under certain emergency situations “after appropriate

consultation.” 8 U.S.C. § 1157(b).

18 PACITO V. TRUMP

established in accordance with the appropriate subsection

under which the [principal] refugee’s admission is charged.”

Id.

Finally, § 1157 expressly exempts refugees from being

deemed inadmissible under certain § 1182 grounds. 8

U.S.C. § 1157(c)(3). Specifically, refugees may not be

deemed inadmissible because they are “likely at any time to

become a public charge” under § 1182(a)(4), are seeking to

enter the United States “for the purpose of performing

skilled or unskilled labor” under § 1182(a)(5), or do not

possess a valid visa or other valid entry document under

§ 1182(a)(7)(A). 8 U.S.C. § 1157(c)(3). The Attorney

General is further authorized to waive, with several narrow

exceptions, “any other provision” of § 1182 “for

humanitarian purposes, to assure family unity, or when it is

otherwise in the public interest.” Id.

Resettlement of refugees. Once an alien has been

admitted to the United States as a refugee, he or she acquires

certain rights and responsibilities. For example, the sole

cause for revoking refugee status is a determination that an

alien was “not in fact a refugee . . . at the time of the alien’s

admission,” 8 U.S.C. § 1157(c)(4), but an admitted refugee

may contest removal proceedings by demonstrating his or

her refugee status, see 8 U.SC. § 1252(e)(2)(c), (e)4(b).

After a refugee has been physically present in the United

States for at least one year, the refugee is generally entitled

to have his or her status adjusted to lawful permanent

residency. See 8 U.S.C. § 1159(a).

The Refugee Act also establishes procedures to provide

various domestic resettlement services to recently admitted

refugees. See 8 U.S.C. §§ 1521–24. Section 1521

establishes the Office of Refugee Resettlement (ORR)

PACITO V. TRUMP 19

within the Department of Health and Human Services

(HHS). 8 U.S.C. § 1521(a). ORR’s “function” is “to fund

and administer” refugee assistance programs under

Subchapter IV. Id. § 1521(b). Section 1522 outlines the

initial domestic resettlement services to be provided and

authorizes the Government to work with States and nonprofit

agencies to provide them. The statute expressly identifies

Congress’s “intent . . . in providing refugee assistance under

this section” is that (1) “employable refugees” be employed

“as soon as possible after their arrival; (2) “social service

funds” be focused on “employment-related services,

English-as-a-second-language training . . ., and case-

management services”; and (3) local voluntary agencies

work in close cooperation with state and local governments.

8 U.S.C. § 1522(a)(1)(B).

The first provision of § 1522 directs that “[i]n providing

assistance under this section, the Director [of ORR] shall, to

the extent of available appropriations,” follow four charges.

Id. § 1522(a)(1)(A). First, the Director shall “make available

sufficient resources for employment training and placement

in order to achieve economic self-sufficiency among

refugees as quickly as possible.” Id. Second, the Director

shall “provide refugees with the opportunity to acquire

sufficient English language training to enable them to

become effectively resettled as quickly as possible.” Id.

Third, the Director shall “insure that cash assistance is made

available to refugees in such a manner as not to discourage

their economic self-sufficiency.” Id. And finally, the

Director shall “insure that women have the same

opportunities as men to participate in training and

instruction.” Id.

Section 1522(a) imposes several additional duties on the

Government. For example, it provides that the Government

20 PACITO V. TRUMP

“shall develop and implement . . . policies and strategies for

the placement and resettlement of refugees within the United

States.” Id. § 1522(a)(2)(B). Those policies and strategies

must take into account various factors, including the

“likelihood of refugees placed in the area becoming self-

sufficient and free from long-term dependence on public

assistance.” Id. § 1522(a)(2)(C)(iii). The Government is

also required to conduct “periodic assessment[s]” to evaluate

the needs of admitted refugees, id. § 1522(a)(3), and it must

“develop a system” to monitor and evaluate “the assistance

provided under this section,” id. § 1522(a)(7).

The remaining provisions of § 1522 are a mix of

mandatory duties and permissive authorizations. Among

other things, the Government “shall”: “assure that an

adequate number of trained staff are available at the

location” where arriving refugees “enter the United States,”

id. § 1522(b)(4)(A); “attempt to arrange for the placement”

of “unaccompanied refugee children,” id.

§ 1522(d)(2)(B)(ii); “assume legal responsibility (including

financial responsibility) for” any in-transit or admitted

unaccompanied refugee children that have not yet been

placed, id.; and “develop and implement alternative

projects” to “provide[] interim support, medical services,

support services, and case management” for refugees who

have been in the United States for less than thirty-six months

and who are not otherwise receiving cash or medical

assistance, id. § 1522(e)(7)(A).

The Government is further “authorized” to “make grants

to, and contracts with, public or private nonprofit agencies

for initial resettlement (including initial reception and

placement with sponsors) of refugees in the United States.”

Id. § 1522(b)(1)(A). Such grants or contracts must be made

“consistent with the objectives” outlined in § 1522(a), and

PACITO V. TRUMP 21

any assistance provided via such contracts and agreements

must “be provided in coordination with the Director’s

provision of other assistance under” Subchapter IV. Id.

The Government is required to track domestic

resettlement services provided under § 1522, and § 1523

requires the Secretary of HHS to submit a detailed annual

report to Congress on such activities. See generally 8 U.S.C.

§ 1523.

b. Implementation of the INA

The Refugee Act’s statutory framework is implemented

through a variety of government agencies in coordination

with United Nations partnership agencies and other

nonprofit agencies located both domestically and abroad. It

is managed by the Department of State (DOS), through its

sub-agency the Bureau of Population, Refugees, and

Migration (PRM), and it is jointly administered by HHS,

through its sub-agency ORR, and by the Department of

Homeland Security (DHS), through its sub-agencies U.S.

Citizenship and Immigration Services (USCIS) and U.S.

Customs and Border Protection (CBP). Collectively, this

multi-agency implementation framework is referred to as the

“United States Refugee Assistance Program” (USRAP).

The executive has promulgated extensive regulations to

govern the implementation of USRAP. See generally 8

C.F.R. § 207 et seq. (admission of refugees); 45 C.F.R. § 400

et seq. (refugee resettlement programs). In practice, the

admission and resettlement of refugees under the Refugee

Act occurs according to the following procedures.

Admission of refugees. Each year, “after appropriate

consultation” with Congress, the President determines the

number of refugees that “may be admitted” to the United

States in the following fiscal year. 8 U.S.C. § 1157. This

22 PACITO V. TRUMP

finding is formalized in the annual “Presidential

Determination on Refugee Admissions.” E.g., Presidential

Determination No. 2024-13, 89 Fed. Reg. 83767 (Sept. 30,

2024) (determining that “[t]he admission of up to 125,000

refugees” during fiscal year 2025 “is justified by

humanitarian concerns or is otherwise in the national

interest”). These determinations often include flexible

“allocation ranges” indicating how many refugees may be

admitted from different regions. See, e.g., id.

Once the Presidential Determination has been issued,

USCIS begins processing applications for refugee status.

See 8 C.F.R. § 207.1(a). To submit an application for refugee

status, each applicant first “must receive a referral to the

[USRAP] for consideration as a refugee.” Refugees, U.S.

Citizenship & Immigr. Servs. (last updated Sept. 17, 2025),

https://perma.cc/K5ZP-29NK; 8 C.F.R. § 207.2(c) (all

refugee applicants “must be sponsored by a responsible

person or organization”). The United Nations High

Commissioner for Refugees (UNHCR) is a common source

of referrals. The United States Refugee Admissions Program

(USRAP) Consultation and Worldwide Processing

Priorities, U.S. Citizenship & Immigr. Servs. (last updated

Sept. 17, 2025), https://perma.cc/4HBM-8LBY. Other

referral sources include “U.S. embassies, certain senior U.S.

government officials, certified non-governmental

organizations (NGOs), and Welcome Corps private

sponsors.” Refugee Admissions, U.S. Dept. of State (last

visited Dec. 14, 2025), https://perma.cc/MT7J-NZEL.

After an applicant receives a referral, a Resettlement

Support Center (RSC) assists the alien with submitting a

refugee application (Form I-590) and completing a pre-

screening process. Refugee Processing and Security

Screening, U.S. Citizenship & Immigr. Servs. (last updated

PACITO V. TRUMP 23

Mar. 14, 2024), https://perma.cc/VTS8-A9YH. RSCs are

international or non-governmental organizations with which

DOS enters into “cooperative agreements” to prepare

applicants for adjudication and to otherwise assist with

USRAP implementation. During the pre-screening process,

RSCs conduct interviews, initiate security, biometric, and

biographic checks for all applicants, and help applicants

schedule USCIS eligibility interviews. Id.

USCIS maintains waiting lists for all applications

submitted for filing, and applicants are selected from these

lists according to “processing priorities” adopted by the

Secretary of HHS. 8 C.F.R. § 207.5. The priorities may be

based on “such considerations as reuniting families, close

association with the United States, compelling humanitarian

concerns, and public interest factors.” Id. “Fulfilling a

processing priority enables a refugee applicant the

opportunity to interview with a USCIS officer, but does not

guarantee acceptance.” The United States Refugee

Admissions Program (USRAP) Consultation and Worldwide

Processing Priorities, U.S. Citizenship & Immigr. Servs.

(last updated Sept. 17, 2025), https://perma.cc/4HBM-

8LBY.

After the pre-screening process is complete, applicants

over fourteen years old that are selected for processing must

conduct an in-person, under-oath interview with a USCIS

officer overseas to determine whether the applicant is

eligible for refugee status and resettlement in the United

States. 8 C.F.R. § 207.2(a). During the interview, a specially

trained USCIS officer elicits information to confirm that the

applicant meets the statutory requirements for refugee status

and is otherwise eligible for admission to the United States.

Refugee Processing and Security Screening, U.S.

Citizenship & Immigr. Servs. (last updated Mar. 14, 2024),

24 PACITO V. TRUMP

https://perma.cc/VTS8-A9YH. USCIS also considers

conditions in the applicant’s country of origin and initiates

its own biometric and biographic checks. Id.

Throughout this process, DOS and DHS conduct

extensive, individualized security vetting and background

checks. Biographic data is provided to the intelligence

community and to law enforcement partners, and biometrics

are collected and submitted to the FBI, DOD, and other

agency partners. Id. According to the Presidential

Determination on Refugee Admissions for Fiscal Year 2026,

“refugees receive the most stringent identification

verification of any class of alien seeking admission or entry

into the United States.” Presidential Determination No.

2025-13, 90 Fed. Reg. 49005 (Sept. 30, 2025).

The information collected on each refugee is synthesized

in an assessment that is provided to USCIS. Refugee

Processing and Security Screening, U.S. Citizenship &

Immigr. Servs. (last updated Mar. 14, 2024),

https://perma.cc/VTS8-A9YH. Before approving any

refugee application, USCIS confirms that all security checks

have been completed and that all collected information has

been reviewed and analyzed. Id. If an applicant has

completed and cleared all security checks, is found to qualify

for refugee status under the Act, is not otherwise

inadmissible, and has no unresolved national security

concerns, USCIS may adjudicate the applicant’s Form I-590

and conditionally approve the applicant as a refugee.

Refugee Admissions, U.S. Dept. of State (last visited Dec.

14, 2025), https://perma.cc/MT7J-NZEL. There is no appeal

if USCIS denies an application for refugee status. 8 C.F.R.

§ 207.4.

PACITO V. TRUMP 25

Once an applicant has been conditionally approved by

USCIS for refugee status, the refugee is assigned to an RSC

to assist with the final steps of admission. The RSC helps

the refugee undergo mandatory medical screening

examinations, 8 C.F.R. § 207.2(b), and it arranges pre-entry

cultural orientation programs. The RSC also obtains a

“sponsorship assurance” from an approved domestic

Resettlement Agency (RA). The RA enters into a

cooperative agreement with DOS, through which the RA

commits to providing various initial resettlement services

during the refugee’s first ninety days post-admission to the

United States. See 8 U.S.C. § 1522(b)(7) (listing

resettlement agencies’ statutory duties). Refugees are not

permitted to travel to the United States until a sponsorship

assurance has been obtained.

After a refugee has completed all pre-travel

requirements, the RSC refers the refugee’s case to the

International Organization for Migration (IOM) to book

travel to the United States. IOM is a nonprofit with which

DOS contracts to coordinate travel for approved refugees

and that serves as the RSC at certain overseas processing

locations. The United States Refugee Admissions Program

(USRAP) Consultation and Worldwide Processing

Priorities, U.S. Citizenship & Immigr. Servs. (last updated

Sept. 17, 2025), https://perma.cc/4HBM-8LBY. IOM books

the refugee’s travel with an interest-free loan that the refugee

is expected to pay back after resettlement in the United

States.

The refugee must then arrive at a port of entry of the

United States “within four months of the date the refugee

application was approved.” 8 C.F.R. § 207.4. Even with an

approved Form I-590, the refugee must still be inspected by

CBP upon arrival at a port of entry, and CBP has ultimate

26 PACITO V. TRUMP

authority whether to admit the refugee into the United States.

See id.

Resettlement of refugees. After a refugee has been

admitted, ORR and PRM fund resettlement services “to

provide for the effective resettlement of refugees and to

assist them to achieve economic self-sufficiency as quickly

as possible.” 45 C.F.R. § 400.1(b). To fund these

resettlement services, the Government has historically

entered into cooperative agreements with domestic nonprofit

RAs. See 8 U.S.C § 1522(b)(1)–(7) (authorizing such

collaboration with “public or private nonprofit agencies for

initial resettlement (including initial reception and

placement with sponsors) of refugees in the United States”).

Domestic RAs must compete in an annual competitive

funding process administered by PRM. PRM then executes

“Reception and Placement cooperative agreements” with the

successful RAs, through which PRM grants federal funds to

the RAs to provide initial reception services to newly

admitted refugees, often for a period of thirty to ninety days. 2

Such services may include: providing transportation from

the airport upon arrival; developing an individualized

service plan for the refugee; providing initial housing and

basic furnishings, groceries, and clothing for at least thirty

days; assisting the refugee with securing permanent housing;

providing cultural-orientation and English-language

training; enrolling the refugee in school; helping the refugee

apply for a Social Security card and other public benefits;

2

Effective January 1, 2026, responsibility for administering initial

resettlement services under USRAP transferred from DOS to HHS-

ORR. See Presidential Determination No. 2025-14, 90 Fed. Reg. 49007

(Oct. 31, 2025).

PACITO V. TRUMP 27

connecting the refugee with social services; and arranging

medical appointments.

ORR also funds or administers various longer-term

refugee resettlement projects. For instance, ORR funds

refugee cash and medical assistance programs for up to

thirty-six months after a refugee is admitted. ORR also

provides funds for “employment services, on-the-job

training, English language instruction, vocational training,

case management, translation/interpreter services, social

adjustment services, health-related services, home

management, childcare, and transportation” for “up to five

years after arrival.”

Finally, after a refugee has been physically present in the

United States for a year, the refugee is required to apply for

lawful permanent residence status (a “Green Card”). See 8

C.F.R. § 209.1. Upon application, USCIS will once again

determine whether the refugee is admissible under § 1182,

subject to the exceptions and waiver provisions of § 1159.

Id. § 209.1(e)–(f). If the refugee is found to be otherwise

admissible, the refugee’s status is adjusted to lawful

permanent residence, and the refugee is considered to have

been admitted as a lawful permanent resident as of the date

of the refugee’s initial arrival in the United States. Id.

§ 209.1(e); 8 U.S.C. § 1159(a)(2). Although there is no

appeal of a denial, the refugee may renew the request for

lawful permanent resident status during removal

proceedings. 8 C.F.R. § 209.1(e).

B. Factual and Procedural Background of This Case

President Biden set the annual admissions ceiling for

FY25 at 125,000 refugees. Presidential Determination No.

2024-13, 89 Fed. Reg. 83767 (Sept. 30, 2024). At the time

President Trump took office, over 128,000 individuals were

28 PACITO V. TRUMP

conditionally approved for refugee status, and

approximately 37,000 refugees had already been admitted to

the United States pursuant to the FY25 allocation.

Hours after taking office on January 20, 2025, President

Trump issued Executive Order No. 14163, which suspended

the entry of all refugees into the United States under USRAP

pending further findings. Exec. Order No. 14163 § 3(a).

The executive order first states that “[o]ver the last 4 years,

the United States has been inundated with record levels of

migration,” which has caused some jurisdictions to

“declare[] states of emergency.” Id. § 1. It further asserts

that the United States “lacks the ability to absorb large

numbers of . . . refugees, into its communities in a manner

that does not compromise the availability of resources for

Americans, that protects their safety and security, and that

ensures the appropriate assimilation of refugees.” Id.

Based on these assertions and the President’s finding

“that entry into the United States of refugees under the

USRAP would be detrimental to the interests of the United

States,” the executive order suspends all entry of refugees

under USRAP “until a finding is made in accordance with

section 4 of th[e] order.” Id. § 3(a). Section 3(b) of the order

further suspends all “decisions on applications for refugee

status” until such a finding is made. Id. § 3(b). Section 3(c)

establishes a limited exception to the general suspension of

admissions, under which the Secretary of State and the

Secretary of Homeland Security “may jointly determine” to

admit refugees “on a case-by-case basis” if they determine

that such admission “is in the national interest and does not

pose a threat to the security or welfare of the United States.”

Id. § 3(c).

PACITO V. TRUMP 29

Section 4 of the executive order sets out the mechanism

and criteria for the resumption of USRAP. It directs the

Secretary of Homeland Security to submit a report to the

President every ninety days regarding whether resumption

of USRAP would be in the interests of the United States in

“light of [four] polic[y]” considerations. Id. § 4. Those

considerations are: (1) “public safety and national security”;

(2) the ability of refugees to “fully and appropriately

assimilate into the United States”; (3) the preservation of

“taxpayer resources for [U.S.] citizens”; and (4) the

involvement of “State and local jurisdictions” in the

resettlement process. Id. § 2. The order directs the Secretary

to continue submitting such reports “until [the President]

determine[s] that resumption of the USRAP is in the interests

of the United States.” 3 Id. § 4.

Federal agencies immediately began implementing

Executive Order No. 14163. On January 21, 2025, DOS sent

an email to its refugee resettlement partners stating that all

refugee arrivals were suspended “until further notice,” all

previously booked travel was canceled, no new bookings

were to be made, all refugee case processing and

pre-departure activities must cease, refugees should not be

moved to transit centers, and no new referrals should be

made to USRAP. 4

3

President Trump has since issued a “Presidential Determination on

Refugee Admissions for Fiscal Year 2026,” setting the annual cap at

7,500 refugees to “primarily be allocated among Afrikaners from South

Africa.” Presidential Determination No. 2025-13, 90 Fed. Reg. 49005

(Sept. 30, 2025).

4

During the final week of the Biden Administration, senior PRM

officials were informed that President Trump intended to issue an

executive order suspending all refugee admissions immediately upon

30 PACITO V. TRUMP

On January 24, 2025, DOS issued written notices to

resettlement agencies stating that all “award(s)” were

“immediately suspended . . . pending a Department-wide

review of foreign assistance programs,” that recipients must

“stop all work under the award(s),” “cancel as many

outstanding obligations as possible,” and incur no new costs.

Recipients were also informed that they may “submit

payment requests for legitimate expenses incurred prior to”

or “associated with” the suspension. The suspension notices

purported to be issued pursuant to a different executive

order, “Reevaluating and Realigning United States Foreign

Aid,” which directed federal agencies to “immediately pause

new obligations and disbursements” of “foreign

development assistance” funds. Exec. Order No. 14169

§ 3(a), 90 Fed. Reg. 8619 (Jan. 20, 2025).

On February 10, 2025, Plaintiffs filed a putative class

action in the Western District of Washington against the

President and the Secretaries of State, Homeland Security,

and Health and Human Services. Plaintiffs comprise nine

individuals and three refugee-resettlement organizations.

The individual Plaintiffs include three distinct groups:

(1) refugees abroad, whose travel or processing was

canceled; (2) U.S.-based individuals, seeking admission for

their family members under the follow-to-join program or

for their sponsees; and (3) recently arrived refugees, who

allege loss of resettlement support. The organizational

taking office. In anticipation of the forthcoming order, DOS

preemptively canceled all travel scheduled for after 12:00 p.m. on

January 20, 2025. This was apparently done to prevent refugees from

being stranded at a U.S. port of entry or a layover location in a third

country.

PACITO V. TRUMP 31

Plaintiffs include two of the ten national resettlement

agencies and a local affiliate of a third. 5

On February 11, 2025, Plaintiffs moved for a preliminary

injunction to block the enforcement of Executive Order No.

14163 and the suspension of funding for resettlement

services. Specifically, Plaintiffs argued that Executive Order

No. 14163 was ultra vires under the INA, that the executive

order violated follow-to-join refugees’ due process rights,

that the agencies’ cessation of refugee processing and

admissions violated the Administrative Procedure Act

(APA), and that the suspension of funding for resettlement

services violated the APA.

During a hearing on February 25, 2025, the district court

granted Plaintiffs’ request and orally issued a preliminary

injunction prohibiting the enforcement or implementation of

§§ 3(a), 3(b), 3(c), and 4 of Executive Order No. 14163. On

February 28, the district court issued a written order to define

the scope of its February 25 ruling, specifying that the

preliminary injunction also prohibits the suspension of

USRAP funding and the withholding of reimbursements for

work already performed pursuant to the cooperative

agreements. Pacito v. Trump, 768 F. Supp. 3d 1199, 1239

(W.D. Wash. 2025).

On February 26, the day after the district court’s oral

ruling, the Government began emailing notices to terminate

5

Plaintiffs Church World Services, Inc. (CWS) and HIAS, Inc. are

resettlement agencies that entered into cooperative agreements with

DOS to assist both with overseas USRAP processing and with domestic

resettlement services. Plaintiff Lutheran Community Services

Northwest (LCSNW), an affiliate of a national resettlement agency,

entered into cooperative agreements with DOS to provide domestic

resettlement services in the Pacific Northwest.

32 PACITO V. TRUMP

its USRAP-related cooperative agreements. By February

27, it had terminated every cooperative agreement to provide

resettlement services for refugees in the United States and

all but one of the cooperative agreements to provide USRAP

processing support abroad. The termination notices were

identical, one-page letters that stated:

The U.S. Department of State hereby notifies

the recipient that this award is immediately

terminated as of February 27, 2025. This

award no longer effectuates agency priorities

and is terminated in accordance with the U.S.

Department of State Standard Terms and

Conditions, 2 CFR 200.340, and/or Award

Provisions as applicable.

Like the suspension notices, the termination notices

permitted recipients to submit reimbursement requests “for

legitimate costs incurred prior to this” termination.

In light of the termination notices, the district court

permitted Plaintiffs to amend their complaint and file a new

motion for a preliminary injunction. On March 24, 2025, the

district court issued a second preliminary injunction and

enjoined the Government, except for President Trump

individually, from enforcing or implementing any portion of

the termination of the cooperative agreements. Pacito v.

Trump, 722 F. Supp. 3d 1204, 1227–28 (W.D. Wash. 2025).

The second injunction also required the Government to

reinstate all cooperative agreements terminated after the

February 25 ruling. Id. The Government filed notices of

appeal on February 28 and March 25, 2025.

On March 8, 2025, the Government sought a stay

pending appeal of the February 28 injunction. Citing Trump

PACITO V. TRUMP 33

v. Hawaii, 585 U.S. 667, 684 (2018), a motions panel of this

court granted in part and denied in part the Government’s

stay request. Pacito v. Trump, 2025 WL 1325305, at *1 (9th

Cir. Mar. 25, 2025). Specifically, the motions panel declined

to stay the district court’s injunction to the extent it applied

to “individuals who were conditionally approved for refugee

status . . . before January 20, 2025.” Id. Upon further

motions, the panel issued two additional orders clarifying the

scope of this “limited carveout from the stay.” 6 Pacito v.

Trump, 2025 WL 1325306 (9th Cir. Apr. 21, 2025). On July

14, 2025, the district court issued an order establishing a

detailed framework for enforcing the carveout and

appointing a magistrate judge to oversee its implementation.

On July 18, 2025, we issued an administrative stay of that

enforcement order.

On July 30, 2025, the district court granted Plaintiffs’

motion for class certification and certified three subclasses

under Federal Rule of Civil Procedure 23(b)(2). Pacito v.

Trump, 796 F. Supp. 3d 692, 702–03 (W.D. Wash. 2025).

First, “all persons who are being or will be processed for

admission . . . as a refugee or who have applied or will apply

for a family member to be processed.” Id. Second, “all

refugees and Afghan and Iraqi Special Immigration Visa

holders resettled to the United States and within their first

ninety days post-resettlement as of January 20, 2025, . . . or

who currently are, or will be, resettled in the United States

and within their first ninety days post-resettlement.” Id. at

703. And third, “all persons in the United States who are

currently petitioning or will petition for family members to

6

According to the Government, 77 conditionally approved refugees,

including two of the individual Plaintiffs, were admitted to the United

States under the motions panel’s carveout.

34 PACITO V. TRUMP

be admitted to the United States under the follow-to-join

(“FTJ”) refugee program.” Id.

Finally, on September 12, 2025, following oral

argument, we issued a partial stay of the district court’s

injunctions pending final resolution of the appeal. Although

we concluded that the Government was likely to prevail

against most of Plaintiffs’ claims, we declined to stay the

injunctions to the extent they required the Government to

“reinstate such cooperative agreements necessary to provide

the reception and placement services described in § 1522 to

refugees who have been admitted to the United States.”

Pacito v. Trump, 152 F.4th 1082, 1088 (9th Cir. 2025).

II. JURISDICTION

The district court had jurisdiction pursuant to 28 U.S.C.

§ 1331. We have jurisdiction under 28 U.S.C. § 1292(a)(1).

III. STANDARD AND SCOPE OF REVIEW

The decision to grant a preliminary injunction is within

the discretion of the district court. We thus review an order

granting a preliminary injunction “for abuse of discretion,

but review any underlying issues of law de novo.” Karnoski

v. Trump, 926 F.3d 1180, 1198 (9th Cir. 2019) (per curiam).

A district court abuses its discretion when its ruling is based

“on an erroneous view of the law or on a clearly erroneous

assessment of the evidence.” Aargon Agency, Inc. v.

O’Laughlin, 70 F.4th 1224, 1230 (9th Cir. 2023) (quoting

CTIA - The Wireless Ass’n v. City of Berkeley, 928 F.3d 832,

838 (9th Cir. 2019)).

A preliminary injunction is “an extraordinary remedy

that may only be awarded upon a clear showing that the

plaintiff is entitled to such relief.” Winter v. Nat. Res. Def.

Council, 555 U.S. 7, 22 (2008). A plaintiff seeking

PACITO V. TRUMP 35

preliminary injunctive relief thus bears the burden of

demonstrating that four elements are met:

[1] that he is likely to succeed on the merits,

[2] that he is likely to suffer irreparable harm

in the absence of preliminary relief, [3] that

the balance of equities tips in his favor, and

[4] that an injunction is in the public interest.

Id. at 20. While a plaintiff must establish all four elements,

our circuit uses a “sliding scale approach” under which “a

stronger showing of one element may offset a weaker

showing of another.” All. for the Wild Rockies v. Cottrell,

632 F.3d 1127, 1131 (9th Cir. 2011). “Likelihood of success

on the merits is a threshold inquiry and is the most important

factor.” Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989

(9th Cir. 2020). But under our sliding scale approach, “if a

plaintiff can only show that there are ‘serious questions

going to the merits’—a lesser showing than likelihood of

success on the merits—then a preliminary injunction may

still issue if the ‘balance of hardships tips sharply in the

plaintiff’s favor,’ and the other two Winter factors are

satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d

1281, 1291 (9th Cir. 2013) (quoting Cottrell, 632 F.3d at

1135).

We likewise review the scope of a preliminary injunction

for abuse of discretion. Nat’l Wildlife Fed’n v. Nat’l Marine

Fisheries Serv., 886 F.3d 803, 823 (9th Cir. 2018). “A trial

court abuses its discretion ‘by fashioning an injunction

which is overly broad.’” Id. (quoting United States v. AMC

Ent., Inc., 549 F.3d 760, 768 (9th Cir. 2008)).

36 PACITO V. TRUMP

IV. LIKELIHOOD OF SUCCESS ON THE MERITS

The district court granted Plaintiffs’ request for

injunctive relief on two broad grounds: First, Executive

Order No. 14163, which suspends USRAP, is beyond the

President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a).

Second, the State Department’s suspension of USRAP

violated the Administrative Procedure Act. We address the

first issue in Part IV.A; the second, in Part IV.B.

A. Executive Order No. 14163

The district court held that Executive Order No. 14163

was ultra vires because it “overrides USRAP in its entirety”

and “suspends USRAP indefinitely,” thereby “effect[ing] a

wholesale reversal of legislatively established policy” and

“exceeding the President’s statutory authority.” The district

court explained that § 1182(f) authorizes only temporary

suspensions of USRAP, and in its view, Executive Order No.

14163 “had no fixed end date and failed to tie the suspension

to any resolvable, triggering event or condition.” The

district court enjoined “[e]nforcing or implementing”

§§ 3(a), 3(b), 3(c), and 4 of the executive order “in their

entirety.”

Because §§ 3(a), 3(c), and 4 address admission of

approved refugees to the United States, while § 3(b)

addresses applications for refugee status, we will address

these issues separately.

1. Sections 3(a), 3(c), and 4

Section 1182(f) provides:

Whenever the President finds that the entry

of any aliens or of any class of aliens into the

United States would be detrimental to the

PACITO V. TRUMP 37

interests of the United States, he may by

proclamation, and for such period as he shall

deem necessary, suspend the entry of all

aliens or any class of aliens as immigrants or

nonimmigrants, or impose on the entry of

aliens any restrictions he may deem to be

appropriate.

“By its plain language, § 1182(f) grants the President broad

discretion to suspend the entry of aliens into the United

States.” Trump v. Hawaii, 585 U.S. 667, 683–84 (2018).

Indeed, the Court continued,

§ 1182(f) exudes deference to the President in

every clause. It entrusts to the President the

decision whether and when to suspend entry

(“[w]henever [he] finds that the entry” of

aliens “would be detrimental” to the national

interest); whose entry to suspend (“all aliens

or any class of aliens”); for how long (“for

such period as he shall deem necessary”); and

on what conditions (“any restrictions he may

deem to be appropriate”). It is therefore

unsurprising that we have previously

observed that § 1182(f) vests the President

with “ample power” to impose entry

restrictions in addition to those elsewhere

enumerated in the INA.

Id. at 684 (quoting Sale, 509 U.S. at 187).

The district court had two particular concerns: that the

executive order suspended USRAP “in its entirety” and

“indefinitely.” We think the district court’s concerns are not

38 PACITO V. TRUMP

well taken. As to the first point, § 1182(f) anticipates that it

may be in “the interests of the United States” to “suspend the

entry of all aliens.” 8 U.S.C. § 1182(f) (emphasis added).

Nothing in § 1182 suggests that the President must maintain

some non-zero admissions under USRAP. The President has

exercised authority consistent with the statute.

No provision of the Refugee Act prevents the President

from suspending all admissions, either. The district court

concluded that the suspension of all refugees unlawfully

“effect[ed] a wholesale reversal of legislatively established

policy” because Congress, in passing the Refugee Act,

intended “to provide a permanent and systematic procedure

for [refugee] admission.” Pacito, 768 F. Supp. 3d at 1221–

22 (quoting § 101(b), 94 Stat. at 102). But § 1157(a), titled

“Maximum number of admissions,” provides that “the

number of refugees who may be admitted” in any year “shall

be such number as the President determines.” 8 U.S.C.

§ 1157(a)(2) (emphasis added). Put simply, § 1157 sets a

ceiling, not a floor—nothing in the statute requires the

admission of a non-zero number of refugees. Nor does the

statute restrict the President’s power to otherwise exclude

refugees under § 1182(f). “Had Congress instead intended

[§ 1157] to constrain the President’s power to determine who

may enter the country, it could easily have chosen language

directed to that end.” 7 Hawaii, 585 U.S. at 695.

7

And in fact, later in § 1157, Congress did expressly exempt certain

refugees from specific § 1182 ineligibility provisions. Namely,

§ 1157(c)(3) provides that “[t]he provisions of paragraphs (4), (5),

and (7)(A) of section 1182(a) of this title shall not be applicable to any

alien seeking admission to the United States under this subsection.” That

Congress specifically exempted refugees from these subsections of

§ 1182 but not § 1182(f) cuts strongly against the district court’s

reasoning.

PACITO V. TRUMP 39

In any event, the fact that the President decided to

suspend the entry of all aliens does not wholly suspend

USRAP; the program is still in place. Even though § 3(a) of

the order suspends the entry of refugees, § 3(c) provides that

“[n]otwithstanding the suspension of the USRAP . . . , the

Secretary of State and the Secretary of Homeland Security

may jointly determine to admit aliens to the United States as

refugees on a case-by-case basis.” In other words, Executive

Order No. 14163 does not suspend USRAP in its entirety,

and the President’s decision to suspend all admissions

(except on a case-by-case basis) is expressly permitted by

the statute.

As to the second point, even accepting the district court’s

premise that USRAP’s suspension is indefinite, § 1182(f)

authorizes the president to “suspend the entry of all aliens”

for “such period as he shall deem necessary.” That is a

complete answer to the district court’s objection: Not only

can we not read into the statute a “temporal limitation” as the

district court did, the statute is also explicit that a suspension

is not subject to any particular “temporal limitation.” In

Trump v. Hawaii, the Supreme Court considered this same

argument. The Court “agree[d] with plaintiffs that the word

‘suspend’ often connotes a ‘defer[ral] till later . . . . But that

does not mean that the President is required to prescribe in

advance a fixed end date for the entry restrictions.” 585 U.S.

at 687 (citation omitted). 8

8

Plaintiffs have pointed to language in Doe #1 v. Trump, 957 F.3d 1050

(9th Cir. 2020) (Doe I), suggesting that a presidential proclamation

issued under § 1182 was “problematic” because there was a “lack of an

explicit time limitation.” Id. at 1065. That decision denied the

government’s motion to stay a preliminary injunction. Doe I was

superseded by a decision on the merits in which we reversed the grant of

the preliminary injunction, ruling in favor of the government. Doe #1 v.

40 PACITO V. TRUMP

Further, even if we were inclined to read such a

limitation into the statute, § 4 of Executive Order No. 14163

contemplates only a temporary pause in refugee admissions.

The Secretary of Homeland Security, in consultation with

the Secretary of State, must submit a report to the President

every ninety days recommending whether to resume

USRAP. The restrictions on admission will remain in effect

until “resumption of entry . . . under the USRAP would be in

the interests of the United States.” Exec. Order No. 14163

§ 4. The order lists four policy considerations that would

inform resumption: (1) “public safety and national

security,” (2) the ability of refugees to “fully and

appropriately assimilate” into society, (3) the preservation of

“taxpayer resources for [U.S.] citizens,” and (4) the capacity

for involving “State and local jurisdictions” in resettlement.

Id. § 2. These are all legitimate considerations in the

formulation of our national immigration policy and are

similar to the temporal limits imposed by the order at issue

in Hawaii. See 585 U.S. at 687 (“[T]he Proclamation makes

clear that its ‘conditional restrictions’ will remain in force

only so long as necessary to ‘address’ the identified

‘inadequacies and risks.’”). Whether the listed

considerations are ones we would adopt is irrelevant. As we

noted at the beginning: “The wisdom of the policy choices

Trump, 984 F.3d 848 (9th Cir. 2020) (Doe II); see East Bay Sanctuary

Covenant v. Biden, 993 F.3d 640, 662 (9th Cir. 2021) (“the motions panel

may be persuasive but [is] not binding”). We later vacated our merits

decision and remanded the matter to the district court with instructions

to dismiss the suit as moot. Doe #1 v. Trump, 2 F.4th 1284 (9th Cir. 2021)

(Doe III). When Doe III vacated our merits opinion in Doe II, it did not

revive our decision on the stay of the preliminary injunction Doe I. We

are not bound by our decision in Doe I.

PACITO V. TRUMP 41

made by [the President] is not a matter for our

consideration.” Sale, 509 U.S. at 165.

Additionally, nothing in the executive order affects the

obligation of the President’s “designated Cabinet-level

representatives” to consult annually with Senate and House

Judiciary Committees. 8 U.S.C. § 1157(e). We view this as

an important part of Congress’s oversight responsibilities.

As we described above in greater detail, the President

provides Congress with information about “the refugee

situation” as the basis for “discuss[ing] the reasons for

believing the [President’s] proposed admission of refugees

is justified,” id. § 1157(e)(1), and “regarding changes in the

worldwide refugee situation, the progress of refugee

admissions, and the possible need for adjustments in the

allocation of admissions among refugees,” id. § 1157(d).

But nothing in the statute purports to bind the President to

the Committees’ views during the annual consultation, nor

could such consultations countermand the authority granted

to the President in § 1182. See Chadha v. INS, 462 U.S. 919,

954–55 (1983). Rather, if there is disagreement between

members of Congress and the President, Congress remains

free to amend the Refugee Act to provide greater direction

to the President.

Finally, we will address here the district court’s ruling

that the executive order violates the Due Process Clause with

respect to spouses and children of refugees. Under

§ 1157(c)(2)(A) “[a] spouse or child . . . of any refugee who

qualifies for admission . . . shall . . . be entitled to the same

admission status as such refugee” if they are accompanying

the refugee or “following to join.” According to the district

court, § 1157(c)(2)(A) gives such spouses or children “a

specific statutory entitlement” which “gives rise to

procedural protections before that entitlement can be

42 PACITO V. TRUMP

suspended.” Pacito, 768 F. Supp. 3d at 1234–35. We think

this misreads the statute and the effect of Executive Order

No. 14163. We do not read the order to affect the “admission

status” of spouses or children referred to in this section.

“The concepts of entry and admission . . . are used

interchangeably in the INA.” Hawaii, 585 U.S. at 695 n.4.

“Admissibility” is not the same as “admission” or “entry.”

Section 1157(c)(2)(A) does not guarantee entry to

spouses and children of refugees who qualify for admission.

They are entitled only to “the same admission status.” 8

U.S.C. § 1157(c)(2)(A). Even if a refugee has been granted

entry to the United States, his or her spouse and children may

be admissible but not entitled to entry. They are still subject

to other restrictions on entry, including determinations under

§ 1182(f). This is made clear by the qualification that the

spouse or child shall be entitled to the same admission status

only “if the spouse or child is admissible.” Id. Moreover,

the spouse’s or child’s admission might be barred if the

annual admission cap has already been met: The final

sentence of § 1157(c)(2)(A) provides that “[u]pon the

spouse’s or child’s admission to the United States, such

admission shall be charged against the numerical limitation

established in accordance with the appropriate subsection

under which the refugee’s admission is charged.”

Nothing in the executive order affects the admissibility

status of refugees who have already qualified—it affects

admission itself. See Hawaii, 585 U.S. at 694–97

(distinguishing between “the predicate question of a visa

applicant’s eligibility for admission and the subsequent

question whether the holder of a visa may in fact enter the

country”). We thus cannot agree with the district court that

executive order violates the Due Process Clause of the Fifth

Amendment.

PACITO V. TRUMP 43

2. Section 3(b)

Section 3(b) of Executive Order No. 14163 requires a

slightly different analysis from §§ 3(a), (c), and 4. Those

sections address the admission of refugees whose

applications for refugee status have been approved. As we

have explained above, the Refugee Act gives the President

broad authority over the entry of refugees into the United

States. By contrast, § 3(b) of the executive order concerns

the “decisions on applications for refugee status.” The

Refugee Act does not contain separate instructions on the

application or decision process. Rather, the need for some

kind of application and decision process is implicit in the

decision to admit refugees. That process has been addressed

in detailed regulations, see 8 U.S.C. § 207 et seq., and

directions from USCIS, supra Part I.A.2.b.

The President’s decision to halt decisions on applications

would follow logically from his determination to suspend all

admissions. We cannot see anything in the Refugee Act that

directs the President to continue to process applications

while admissions have been suspended.

***

In sum, Plaintiffs have failed to make a strong showing

that they are likely to succeed on the merits of their

challenges to Executive Order No. 14163 under the Refugee

Act.

B. Termination of Funding for the Cooperative Agreements

Plaintiffs also bring an APA challenge to the decisions by

the Department of State, Department of Homeland Security,

and Department of Health and Human Services to defund

various services offered under USRAP in light of Executive

Order No. 14163 and Executive Order No. 14169. Before

44 PACITO V. TRUMP

we can consider Plaintiffs’ APA claims, however, we must

address two arguments by the Government that, if correct,

would preclude our review. First, the United States argues

that the APA does not provide an avenue for our review

because the Court of Federal Claims (“CFC”) has exclusive

jurisdiction over the organizational Plaintiffs’ claims.

Alternatively, the Government asserts that, even if the CFC

does not have jurisdiction under the Tucker Act, the district

court could not conduct review under the APA because the

matter is committed to agency discretion by law or,

alternatively, because there has been no final agency action.

We address these objections below in Part IV.B.1.

Concluding that the Government is not likely to succeed on

either of these objections, we consider the merits of

Plaintiffs’ challenge to the defunding decisions in Part

IV.B.2.

1. Whether We Can Hear This Case Under the APA

a. Court of Federal Claims and Tucker Act

jurisdiction

The Government challenges the district court’s power to

consider the organizational Plaintiffs’ APA claims because,

in the Government’s view, the cooperative agreements at

issue are contracts for which the United States has vested

exclusive jurisdiction in the Court of Federal Claims under

the Tucker Act. 9 28 U.S.C. § 1491(a)(1) (“The United States

Court of Federal Claims shall have jurisdiction to render

9

The Government concedes that the Tucker Act does not bar the

individual Plaintiffs’ APA claims. Instead, the Government claims for

the first time in a footnote in its reply brief that the individual Plaintiffs

lack standing to bring an APA claim. Because we have concluded that

the Tucker Act does not bar the organizational Plaintiffs’ claim, we need

not consider this argument at this juncture.

PACITO V. TRUMP 45

judgment upon any claim against the United States founded

. . . upon any express or implied contract with the United

States . . . .”). The Government additionally characterizes

the organizational Plaintiffs’ claims as seeking specific

performance and compensation for the cancellation of the

cooperative agreements, which it argues are remedies that

sound in contract and belong in the CFC. We disagree.

The APA “provide[s] a general authorization for review

of agency action in the district courts.” Bowen v.

Massachusetts, 487 U.S. 879, 903 (1988). The APA,

however, is a default provision: It provides a forum for

review where “there is no other adequate remedy in a court.”

5 U.S.C. § 704. Although the APA waives the sovereign

immunity of the United States, it applies only where the

party seeks “relief other than money damages,” and only so

long as no “other statute that grants consent to suit expressly

or impliedly forbids the relief which is sought.” Id. § 702.

The condition on the waiver of sovereign immunity in § 702

thus “prevents plaintiffs from exploiting the APA’s waiver to

evade limitations on suit contained in other statutes.”

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.

Patchak, 567 U.S. 209, 215 (2012). We have summarized

the restrictions on APA review as follows: “the APA waives

sovereign immunity for [a plaintiff’s] claims only if three

conditions are met: (1) its claims are not for money

damages, (2) an adequate remedy for its claims is not

available elsewhere and (3) its claims do not seek relief

expressly or impliedly forbidden by another statute.” Tucson

Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645

(9th Cir. 1998). Because a claim falling under the Tucker

Act may be brought in the CFC, a claim falling under the

Tucker Act cannot be brought in a district court under the

APA.

46 PACITO V. TRUMP

The Supreme Court has explained that the Tucker Act is

merely jurisdiction-granting. United States v. Testan, 424

U.S. 392, 400 (1976). For the CFC to have jurisdiction over

a claim, the claim must be based on either an “express or

implied contract with the United States” or a statute that “can

fairly be interpreted as mandating compensation by the

Federal Government for the damages sustained.” Id. at 397–

400 (citation omitted). “[W]hen a breach of contract claim

is brought . . . , the plaintiff comes armed with the

presumption that money damages are available.” Holmes v.

United States, 657 F.3d 1303, 1314 (Fed. Cir. 2011). But

when a party seeks other forms of relief, “we interpret the

Tucker Act to ‘impliedly forbid’ 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)

(citation omitted).

To determine whether an action falls under the Tucker

Act because it is an action in contract—“disguised” or

otherwise—we have adopted a two-part test from the D.C.

Circuit’s decision in Megapulse, Inc. v. Lewis, 672 F.2d 959

(D.C. Cir. 1982). See United Aeronautical, 80 F.4th at 1026.

First, we look to “the source of the rights upon which the

plaintiff bases its claims.” Id. (citation omitted). Second,

and relatedly, we look to “the type of relief sought.” Id.

(citation omitted). If the “rights and remedies are statutorily

or constitutionally based, then district courts have

jurisdiction; if rights and remedies are contractually based

then only the Court of Federal Claims does, even if the

plaintiff formally seeks injunctive relief.” Id. (emphasis in

original); see also Tucson Airport Auth., 136 F.3d at 646.

Source of the rights. We begin with the first part of the

Megapulse test. The source of the rights claimed by the

PACITO V. TRUMP 47

organizational Plaintiffs in this case is their “cooperative

agreements” with the State Department, which the

Government has characterized as contracts subject to the

Tucker Act. We think the Government’s characterization is,

at best, incomplete. The organizational Plaintiffs provide

resettlement services to refugees admitted to the United

States under USRAP. The resettlement program is created

by 8 U.S.C. § 1522, which authorizes the Secretary of State

“to make grants to, and contracts with, public or private

nonprofit agencies for initial resettlement . . . of refugees in

the United States.” Id. § 1522(b)(1); see also id.

§ 1522(b)(5), (b)(7), (c)(1)(A), (d)(2)(A), (e) (describing

various services to be provided to refugees through grants

and contracts). Although it has the discretion to provide

these services by contract, the State Department elected to

proceed by cooperative agreement, which is a form of a

grant.

The terms “grant” and “cooperative agreement” have

been defined by Congress in the Federal Grant and

Cooperative Agreement Act of 1977 (FGCAA), 31 U.S.C.

§§ 6301–08. The FGCAA was adopted to “promote a better

understanding of United States Government expenditures

and help eliminate unnecessary administrative requirements

on recipients of Government awards . . . .” Id. § 6301(1).

The FGCAA carefully defines three terms: “procurement

contracts,” “grant agreements,” and “cooperative

agreements.” Id. §§ 6303–05. Procurement contracts are the

“legal instrument reflecting a relationship between the

United States Government and [a recipient] when[] the

principal purpose of the instrument is to acquire . . . property

or services for the direct benefit or use of the United States

48 PACITO V. TRUMP

Government.” Id. § 6303(1). 10 By contrast, grants and

cooperative agreements are the appropriate legal instruments

when the “purpose of the relationship is to transfer a thing of

value to [the recipient] to carry out a public purpose of

support or stimulation authorized by a law of the United

States.” 11 Id. §§ 6304(1), 6305(1). In a nutshell, the

difference between a procurement contract and a grant or

cooperative agreement is whether the United States

Government receives a direct benefit from the arrangement:

If it does, then the arrangement is a procurement contract; if

not, it is a cooperative agreement or a grant. See Patridge v.

Reich, 141 F.3d 920, 924 (9th Cir. 1998). An agency’s

choice of legal instrument has important consequences

across a variety of contexts, including the “general rules

regarding drafting and ambiguities.” 12 Bennett v. Ky. Dep’t

of Educ., 470 U.S. 656, 669 (1985) (because “grant

agreements . . . cannot be viewed in the same manner as a

bilateral contract governing a discrete transaction,”

10

Congress has given agencies some further flexibility, permitting them

in “specific instance[s],” to label an agreement a “procurement contract”

even if it does not satisfy the definition provided in § 6303(1). See 31

U.S.C. § 6303(2).

11

The difference between a grant and a cooperative agreement is whether

“substantial involvement” is expected between the executive agency and

the recipient. Compare 31 U.S.C. § 6304(2) (substantial involvement

not expected with a grant) with 31 U.S.C. § 6305(2) (substantial

involvement expected with a cooperative agreement).

12

In addition, “agreements that are not procurement contracts . . . are not

subject to the general statutes, regulations, and requirements governing

procurement contracts, e.g., the Competition in Contracting Act, 41

U.S.C. §§ 251 et seq.; the Contract Disputes Act, 41 U.S.C. §§ [7101] et

seq.; and the Federal Acquisition Regulations, 48 C.F.R. Chap. 1.”

Trauma Serv. Grp. v. United States, 33 Fed. Cl. 426, 429 (1995).

PACITO V. TRUMP 49

ambiguities will not “invariably be resolved against the

Federal Government”).

A number of courts have looked to the definitions in the

FGCAA to help determine whether specific agreements were

contracts for purposes of the Tucker Act. See, e.g., Am. Ctr.

for Int’l Lab. Solidarity v. Chavez-DeRemer, 789 F. Supp. 3d

66, 86 n.5 (D.D.C. 2025); United States v. President &

Fellows of Harvard Coll., 323 F. Supp. 2d 151, 164 (D.

Mass. 2004); St. Bernard Par. Gov’t v. United States, 134

Fed. Cl. 730, 735 (2017), aff’d on different grounds, 916

F.3d 987 (Fed. Cir. 2019); Anchorage v. United States, 119

Fed. Cl. 709, 713 (2015); Thermalon Indus., Ltd. v. United

States, 34 Fed. Cl. 411, 417 (1995). In such cases, the

agency’s choice of instrument has been persuasive but not

conclusive for Tucker Act purposes. Compare Anchorage,

119 Fed. Cl. at 713 (holding that the “reciprocal nature of

[an] Agreement . . . [made it] an express contract and not a

cooperative agreement”), with Am. Ctr. for Int’l Lab.

Solidarity, 789 F. Supp. 3d at 91 (cooperative agreement was

not a contract for purposes of the Tucker Act), and St.

Bernard Parish, 134 Fed. Cl. at 735 (same). The CFC has

also stated that cooperative agreements, unlike procurement

contracts, are not presumed to provide money damages. St.

Bernard Parish, 134 Fed. Cl. at 734; see also Am. Ctr. for

Int’l Lab. Solidarity, 789 F. Supp. 3d at 87 (“how the

government agency classifies or denominates an agreement

has probative value in assessing” whether the agreement

“qualif[ies] as a contract for purposes of the Tucker Act”). 13

13

We emphasize here that the FGCAA merely provides a framework for

classifying various agreements as procurement contracts, grants, or

cooperative agreements. That classification is not determinative of

whether an instrument is a contract for purposes of the Tucker Act. See

50 PACITO V. TRUMP

The Government failed to cite the FGCAA or to

acknowledge the existence of this authority. In fact, the

Government’s argument appears to be inconsistent with its

own prior expressed view. In its brief to the Federal Circuit

in St. Bernard Parish, the Government took the exact

opposite position that it takes now and cited the FGCAA to

argue that a cooperative agreement was not a Tucker Act

contract because it “did not provide a direct benefit to the

Government, and . . . was therefore not an enforceable

contract within the jurisdiction of the [CFC].” Brief for

Defendant-Appellee at 3, St. Bernard Par. Gov., 916 F.3d

987 (9th Cir. 2019) (No. 18-1204), 2018 WL 1438313

[hereinafter St. Bernard Brief]. In the lower court, the CFC

agreed with the Government that because the cooperative

agreement at issue provided “no direct benefit” to the

Government—as compared to a “mere incidental benefit”—

the agreement lacked “the consideration necessary to form

an enforceable contract.” St. Bernard Par., 134 Fed. Cl. at

735–36 (citation omitted). On appeal to the Federal Circuit,

the Government argued that “[t]his holding appropriately

respect[ed] the distinctions between contracts, grants, and

cooperative agreements.” St. Bernard Brief at 20. The

Government cannot have its cake and eat it too by insisting

that cooperative agreements are not Tucker Act contracts

when it does not want to litigate in the CFC but that they are

Trauma Serv. Grp., 104 F.3d at 1326. Rather, federal courts have long

held that the FGCAA supplies a presumption that grants and cooperative

agreements are not contracts under which a claim for money damages

may be brought in the CFC. See, e.g., Rick’s Mushroom Serv. v. United

States, 521 F.3d 1338, 1343 (Fed. Cir. 2008). We are thus puzzled by the

dissent’s argument that our holding would require claims based on grants

to be brought in the CFC. See Dissenting Op. at 84.

PACITO V. TRUMP 51

Tucker Act contracts when—as in this case—it would rather

be there.

Here, the State Department made a deliberate choice to

proceed by cooperative agreement and not by contract. This

is evident from the “Federal Assistance Award” the State

Department entered into with the organizational Plaintiffs,

which expressly identifies the instrument as a “cooperative

agreement,” and makes the parties subject to the State

Department’s “Standard Terms and Conditions for Federal

Awards” (Standard Terms and Conditions). The Standard

Terms and Conditions refers repeatedly and exclusively to

“grants or cooperative agreements.” Furthermore,

consistent with the FGCAA’s definition of “cooperative

agreement,” the Federal Assistance Award specifies that

“[t]he Department of State will be substantially involved in

carrying out [certain] aspects of this cooperative agreement.”

See 31 U.S.C. § 6305(2) (“An executive agency shall use a

cooperative agreement . . . when . . . substantial involvement

is expected between the executive agency and the . . .

recipient.” (emphasis added)). The sources of the rights

claimed by the organizational Plaintiffs are § 1522, which

creates the resettlement program and permits the State

Department to proceed by cooperative agreement rather than

by contract; the cooperative agreements themselves; and the

Standard Terms and Conditions, which applies to all such

agreements. Nothing in the statute or the documents

indicates that the parties were entering into a contract, much

less a “procurement contract,” which would have triggered a

host of additional rights and duties on the parties. See supra

at 48 & nn. 11–12.

The type of relief sought. The second part of the

Megapulse test considers “the type of relief sought.” 672

F.2d at 968. In general, if a party seeks “money damages”

52 PACITO V. TRUMP

stemming from an agreement with the United States, its

claim is a “contract-based action [that] falls within the scope

of the Tucker Act.” United Aeronautical, 80 F.4th at 1026.

By contrast, where “claims arise under a federal grant

program and turn on the interpretation of statutes and

regulations rather than on the interpretation of an agreement

negotiated by the parties,” the plaintiff’s claims are generally

“not contract claims for Tucker Act purposes.” Md. Dep’t of

Hum. Res. v. Dep’t of Health & Hum. Servs., 763 F.2d 1441,

1449 (D.C. Cir. 1985).

In this case, the organizational Plaintiffs do not seek

damages from the State Department. Nor has the

Government pointed us to any statutory provision or

provision within the cooperative agreements that

contemplates the payment of damages for breach of the

agreement. 14 See Testan, 424 U.S. at 400. The Standard

Terms and Conditions also provides a single remedy:

termination “in whole or in part” at the option of the recipient

or the State Department. The State Department’s list of

justifications for termination includes failure to comply with

“the terms and conditions of award” and “if the award no

longer effectuates the program goals or agency priorities.”

Nothing in the Standard Terms and Conditions suggests that

14

Federal courts and the Government have previously considered this

fact to be determinative of the Tucker Act analysis. See Summit Power

Grp., LLC v. United States, 139 Fed. Cl. 369, 374 (2018) (collecting

cases and noting that both the CFC “and the Federal Circuit have held

that particular cooperative agreements [that] did not contemplate

payment of money as a remedy for breach of the agreement” fell outside

the CFC’s jurisdiction); St. Bernard Brief at 10 (“The agreement between

the Parish and NRCS is clearly a cooperative agreement and, as such, is

not presumed to contemplate money damages. Moreover, the agreement

in fact does not contemplate money damages, and therefore does not fall

within the jurisdiction of the Court of Federal Claims.”).

PACITO V. TRUMP 53

either party has any right to seek damages in compensation

for early termination of the resettlement program. See

Bennett, 470 U.S. at 669 (“Although we agree with the State

that Title I grant agreements had a contractual aspect, the

program cannot be viewed in the same manner as a bilateral

contract governing a discrete transaction.” (citation

omitted)). We cannot see how, under either part of the

Megapulse test, the cooperative agreements qualify as

contracts for purposes of the Tucker Act.

Our reading is fully consistent with the Supreme Court’s

decision in Bowen v. Massachusetts and the Court’s recent

decisions in Department of Education v. California, 604 U.S.

650 (2025) (per curiam), and National Institutes of Health v.

American Public Health Association, 606 U.S. ---- (2025)

(per curiam). In Bowen, the state sued under the APA for

declaratory and injunctive relief after the Secretary of Health

and Human Services prospectively disallowed certain

Medicaid reimbursements. 487 U.S. at 887. The

Government in turn raised a “novel proposition that the

Claims Court,” the CFC’s predecessor, “is the exclusive

forum for judicial review of this type of agency action”

because it purportedly involved “money damages.” Id. at

883, 891. The Court disagreed, distinguishing the State’s

“equitable action for specific relief” from “an action at law

for damages.” Id. at 893. It explained that an action for

“money damages” is one “intended to provide a victim with

monetary compensation for an injury to his person, property,

or reputation.” Id. And it described an “equitable action,”

which would permit APA review, as one “seeking to enforce

[a] statutory mandate,” which could also “happen[] to be one

for the payment of money.” Id. at 900. Because

Massachusetts was not seeking “money in compensation for

the damage sustained by the failure of the Federal

54 PACITO V. TRUMP

Government to pay as mandated” but was instead seeking

review of a law that entailed monetary implications, its APA

claim was not foreclosed by the Tucker Act. Id. at 900

(emphasis in original).

In Department of Education, the states were recipients of

various education-related grants, which the Department of

Education terminated. The district court issued injunctive

relief against the termination of those grants, but it “also

require[d] the Government to pay out past-due grant

obligations and to continue paying obligations as they

accrue.” 604 U.S. at 650. In a brief order, the Court granted

a stay pending appeal. It noted that “the APA’s limited

waiver of immunity does not extend to orders ‘to enforce a

contractual obligation to pay money’ along the lines of what

the District Court ordered here.” Id. at 651 (quoting Great-

West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212

(2002)).

The Court issued a similar stay in the National Institutes

of Health. NIH had terminated research-related grants, for

which the American Public Health Association sought

“relief designed to enforce any ‘obligation to pay money’

pursuant to those grants.” 606 U.S. at ---- (citation omitted).

Although the Court did not say as much, its language

strongly suggested that the CFC had jurisdiction over the

claims, thus depriving the district court of review under

§ 704 of the APA. See id. at ---- (Barrett, J., concurring)

(“[T]he District Court likely lacked jurisdiction to hear

challenges to the grant terminations, which belong in the

Court of Federal Claims.”).

In our case, the organizational Plaintiffs are parties to

cooperative agreements—not procurement contracts—with

the State Department. Those legal instruments have been

PACITO V. TRUMP 55

denominated “cooperative agreements” consistent with the

FGCAA definitions and § 1522, which creates the

resettlement program. And despite the Government’s

characterization, these Plaintiffs do not pursue specific

performance or compensation for the cancellation of their

cooperative agreements in a manner that sounds in

contract. 15 As in Bowen, they pursue review of a final

agency action and are thus “seeking to enforce [a] statutory

mandate,” which “happens to be one” that might result in

“the payment of money.” 487 U.S. at 900. Unlike the

grantees in Department of Education and NIH, Plaintiffs do

not seek backpay of funds or a guarantee of continued

funding. 16 Dep’t of Educ., 604 U.S. at 650; NIH, 606 U.S.

at ----. Under the Megapulse test, Plaintiffs’ APA claim was

properly brought in the district court.

b. Reviewability under the APA

The Government argues that the district court, and

consequently this court, cannot review the President’s or the

15

Although we conclude that Plaintiffs’ APA challenge is properly before

the district court, if Plaintiffs were seeking compensation for past

services provided under the cooperative agreements, that would raise a

different set of issues concerning CFC jurisdiction over that claim. See

NIH, 606 U.S. at ---- (Barrett, J., concurring) (suggesting that a case

bringing both a programmatic challenge and a claim for past-due monies

would result in “[t]wo-track litigation”). Plaintiffs are not seeking

reimbursement here; the termination notices expressly permitted

recipients to make reimbursement requests for previously incurred costs.

16

The organizational Plaintiffs surely have a self-interest in being able

to continue their cooperative agreements. But the heart of their claims,

when considered together with the individual Plaintiffs’ interests, is to

see the refugee resettlement program continue, whether or not these

specific organizations continue to be funded. That brings this case

squarely within Bowen.

56 PACITO V. TRUMP

agencies’ actions under § 706 of the APA because the

“agency action is committed to agency discretion by law.” 5

U.S.C. § 701(a)(2). Alternatively, the Government argues

that there is no “final agency action” to review. Id. § 704.

We will address each claim.

Committed to agency discretion. The Supreme Court has

“‘long applied a strong presumption favoring judicial review

of administrative action.’” Weyerhaeuser Co. v. U.S. Fish &

Wildlife Serv., 586 U.S. 9, 23 (2018) (quoting Mach Mining,

LLC v. EEOC, 575 U.S. 480, 489 (2015)). Because

§ 706(2)(A) authorizes courts to set aside agency action that

is, among other things, “an abuse of discretion,” not all

matters of discretion are unreviewable. In fact, we are to

“read the exception in § 701(a)(2) quite narrowly, restricting

it to ‘those rare circumstances where the relevant statute is

drawn so that a court would have no meaningful standard

against which to judge the agency’s exercise of discretion.’”

Weyerhaeuser, 585 U.S. at 23 (quoting Lincoln v. Vigil, 508

U.S. 182, 191 (1993)).

The Government rests its claim on the Court’s decision

in Lincoln, in which it held that a lump-sum appropriation to

the Indian Health Service “for the benefit, care, and

assistance of the Indians,” 25 U.S.C. § 13, provided no

meaningful standard for judicial review because “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, 508 U.S. at 192. Unlike the

program in Lincoln, the Refugee Act is quite specific in

describing the programs for refugee resettlement in the

United States. Far from conferring discretion on the agency

to establish or not establish such a program, the Act

establishes the Office of Refugee Resettlement and

PACITO V. TRUMP 57

describes, in some detail, the services it is to provide to

refugees resettled in the United States. See 8 U.S.C.

§§ 1521–22. This case is not even close to the lump-sum

appropriation for Indian health generally at issue in Lincoln.

As we recently wrote, “[t]he rule announced in Lincoln has

no application where, as here, the agency fails to carry out a

program that is required by statute.” Community Legal

Servs., v. U.S. Dep’t of HHS, 137 F.4th 932, 940 (9th Cir.

2025) (emphasis in original). To be sure, an agency almost

always will have some discretion in the design and

administration of a program, but that measure of discretion

does not insulate it from judicial review. The Government

has not rebutted the “strong presumption favoring judicial

review of administrative action.” Mach Mining, 575 U.S. at

489.

Final agency action. Section 704 of the APA provides

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

agency action for which there is no other adequate remedy

in a court are subject to judicial review.” The APA thus

prevents piecemeal or premature review of agency action

and preserves the right to challenge any aspect of the

agency’s action once the agency has reached a final decision.

See 5 U.S.C. § 704 (“A preliminary, procedural, or

intermediate agency action or ruling not directly reviewable

is subject to review on the review of the final agency

action.”). Accordingly, the Court has explained that “final

agency action” will be the “consummation of the agency’s

decisionmaking process”—not of a “merely tentative or

interlocutory nature”—and “one by which rights or

obligations have been determined, or from which legal

consequences will flow.” Bennett v. Spear, 520 U.S. 154,

177–78 (1997) (cleaned up).

58 PACITO V. TRUMP

The Government argues that Executive Order No. 14163

was not a final order because it calls for only temporary

suspension of entry and that the funding termination was a

90-day pause subject to reassessment. The Government also

points out that the executive order is not subject to APA

review because the President is not an “agency” within the

meaning of the APA.

These arguments call for separate treatment of the

executive order and the defunding decision. We can quickly

address the APA challenge to the President’s decision to

suspend entry. The APA’s definition of “agency” does not

include the President, see 5 U.S.C. § 701(b)(1), and “[o]ut of

respect for the separation of powers and the unique

constitutional position of the President,” the Court has

determined that the President is not subject to the judicial

review provisions of the APA, Franklin v. Massachusetts,

505 U.S. 788, 800–01 (1992). Because “the final action

complained of is that of the President, and the President is

not an agency within the meaning of the Act . . . there is no

final agency action that may be reviewed under the APA

standards.” Id. at 796.

Plaintiffs’ challenge to the agencies’ decision to defund

the refugee program stands on different footing. Executive

Order No. 14163 did not itself terminate the funding of the

resettlement programs. Instead, those effects flowed from

the termination letters issued by the State Department. The

Government acknowledges that the termination qualified as

agency action but contends that the action is not final

because the State Department only suspended those awards

in response to the executive order, which provides that

USRAP’s suspension can be revisited every ninety days.

Although the State Department initially suspended the

awards on January 24, 2025, in response to Executive Order

PACITO V. TRUMP 59

No. 14163, it terminated the awards on February 26, 2025,

because they “no longer effectuate[d] agency priorities.” See

2 C.F.R. § 200.340. The termination, as opposed to the

suspension, is final agency action “by which rights or

obligations have been determined, or from which legal

consequences will flow.” Bennett, 520 U.S. at 178 (cleaned

up). 17

***

We conclude that Plaintiffs have not made a sufficient

showing that they are likely to succeed on their claim that

the executive order itself is subject to APA review.

Otherwise, Plaintiffs have made such a showing, and we may

proceed to consider the merits of their APA challenge to the

termination of funding for refugee resettlement.

2. APA Challenge to the Defunding of the Cooperative

Agreements

The Government claims that the district court erred in

enjoining the termination of the organizational Plaintiffs’

cooperative agreements. Under § 706 of the APA, we may

“hold unlawful and set aside agency action” that is

“arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A). As

before, we will first consider separately the defunding of

17

The Government also argues, briefly, that Plaintiffs are seeking

“wholesale improvement of [a] program by court decree,” Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 891 (1990) (emphasis in original), a task

that would “inject[] the judge into day-to-day agency management,”

Norton v. S. Utah Wilderness All., 542 U.S. 55, 67 (2004). We can see

nothing in Plaintiffs’ challenges to the termination of funding of the

resettlement program that would lead to the “[t]he prospect of pervasive

oversight by federal courts over the manner and pace of agency

compliance with . . . congressional directives.” Id.

60 PACITO V. TRUMP

services to applicants for refugee status who are outside the

United States and then turn to the defunding of cooperative

agreements providing resettlement services to refugees

admitted to the United States under USRAP.

a. Defunding services to applicants outside the

United States

The Refugee Act provides a framework for determining

who are refugees and how many refugees many be admitted

to the United States in any given year. But the Act does not

specify how the State Department is to process those who

wish to apply for admission to the United States as refugees.

Instead, it is the State Department’s regulations that provide

for the filing of applications for admission, 8 U.S.C. § 207.1,

and the processing of those applications, id. § 207.2. Further

details can be found on various websites maintained by the

USCIS. General information may be found at Refugees,

U.S. Citizenship & Immigr. Servs. (last updated Sept. 17,

2025), https://perma.cc/K5ZP-29NK. That website, in turn,

will refer applicants to other websites. An applicant for

refugee status must be sponsored and then register with the

UNHCR. See The United States Refugee Admissions

Program (USRAP) Consultation and Worldwide Processing

Priorities, U.S. Citizenship & Immigr. Servs. (last updated

Sept. 17, 2025), https://perma.cc/4HBM-8LBY. Once an

applicant has been referred, the applicant may seek the

assistance of an RSC, which will further help the applicant

navigate the process. See Refugee Processing and Security

Screening, U.S. Citizenship & Immigr. Servs., (last updated

Mar. 14, 2024), https://perma.cc/VTS8-A9YH. The RSCs

entered into cooperative agreements with the State

Department to conduct background interviews, start security

checks, and schedule USCIS interviews for conditional

approval. If USCIS conditionally approves an applicant,

PACITO V. TRUMP 61

then an RSC helps the applicant with medical screening

examinations, cultural orientation programs, and travel

arrangements.

We cannot conclude that it was arbitrary and capricious

or otherwise not in accordance with the Refugee Act for the

State Department to defund the overseas operations of the

RSCs. Once the President determined to suspend the entry

of refugees, it was not irrational for the State Department to

terminate the cooperative agreements with RSCs for the

processing of applications overseas. As we noted above,

although the Refugee Act surely contemplates an admission

process, it does not mandate any particular process.

Executive Order No. 14163 does anticipate that some

refugees will be admitted on a case-by-case basis, but these

applications can be handled by the State Department itself or

through future agreements to provide more limited services.

We see no reason why the State Department should be

required to maintain an overseas structure capable of

processing tens of thousands of applications when the

executive order has limited entry to case-by-case

consideration.

b. Defunding services to refugees admitted to the

United States

The district court concluded that it was likely both

contrary to law and arbitrary and capricious for the

Government to terminate the cooperative agreements. To the

extent that doing so deprived newly admitted refugees of the

domestic resettlement benefits to which they were statutorily

entitled, we agree.

Contrary to law. Congress established a comprehensive

statutory framework for providing resettlement services to

newly admitted refugees. See generally 8 U.S.C. §§ 1521–

62 PACITO V. TRUMP

1524. In so doing, Congress directed that the Government

“shall, to the extent of available appropriations”:

(i) make available sufficient resources for

employment training and placement in order

to achieve economic self-sufficiency among

refugees as quickly as possible, (ii) provide

refugees with the opportunity to acquire

sufficient English language training to enable

them to become effectively resettled as

quickly as possible, (iii) insure that cash

assistance is made available to refugees in

such a manner as not to discourage their

economic self-sufficiency, in accordance

with subsection (e)(2), and (iv) insure that

women have the same opportunities as men

to participate in training and instruction.

8 U.S.C. § 1522(a)(1)(A) (emphasis added). In addition to

these four mandates, the statute commands that the

Government “shall” provide various other services and

benefits. See, e.g., id. § 1522(d)(2)(B) (financial and legal

responsibility for unaccompanied minor refugees “[d]uring

any interim period while such a child is in the United States

or in transit to the United States but before the child is so

placed”); id. § 1522(e)(7)(A) (cash and medical assistance

for the first thirty-six months). We conclude that by failing

to provide these statutorily mandated services, the

Government acted contrary to law.

The district court determined that by terminating the

cooperative agreements, the Government rendered the

domestic refugee resettlement infrastructure functionally

inoperative, and recently admitted refugees have been

PACITO V. TRUMP 63

unable to access resettlement benefits as a result. The

Government itself represented that the funding termination

has caused “significant deterioration of functions throughout

the USRAP.” Despite acknowledging this months ago, the

Government has made no indication that it has since

developed an alternative mechanism for providing the

§ 1522 services. In other words, by terminating the

cooperative agreements, the Government knowingly

scrapped its only means of meeting its statutory duties

without any sort of contingency in place.

As a result of the Government’s actions, there are

thousands of refugees potentially entitled to those services

who have not received—and will not receive—them. For

example, there were 37,000 refugees admitted to the United

States during FY25 alone. The Government would also have

to supply resettlement services to the 77 refugees already

admitted under the motion panel’s carveout and to any

refugees admitted pursuant to the case-by-case exception in

§ 3(c) of Executive Order No. 14163. And pursuant to the

President’s FY26 determination, up to 7,500 new refugees

may be admitted this year. See Presidential Determination

No. 2025-13, 90 Fed. Reg. 49005 (Sept. 30, 2025). Each of

these groups of refugees is entitled to receive § 1522 services

following entry.

The Government argues it was not contrary to § 1522 to

terminate the cooperative agreements because “nothing in

the plain text of the statute requires the Secretary to fund

initial resettlement services at all.” We disagree. The word

“shall is mandatory.” Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Text 112 (2012);

see also Alabama v. Bozeman, 533 U.S. 146, 153

(2001) (“[T]he word ‘shall’ is ordinarily ‘the language of

command.’” (citation omitted)). Moreover, the terms “shall”

64 PACITO V. TRUMP

and “may” are used throughout § 1522; “shall” appears 49

times, while “may” appears 17 times. “And when the same

Rule uses both ‘may’ and ‘shall,’ the normal inference is that

each is used in its usual sense—the one act being permissive,

the other mandatory.” Anderson v. Yungkau, 329 U.S. 482,

485 (1947); see also Jama v. Immigr. & Customs Enf’t, 543

U.S. 335, 346 (2005); Lopez v. Davis, 531 U.S. 230, 240–41

(2001). 18

Our reading is fortified by two indisputable facts. First,

as we have pointed out repeatedly, Congress described the

services the United States will provide to refugees in some

detail. See, e.g., 8 U.S.C. § 1522(a)(1)(B) (employment); (d)

(assistance for children); (e) (cash and medical assistance).

Second, Congress has committed substantial appropriations

to fund refugee resettlement. 19 Where Congress has

provided detailed instructions for creating a refugee program

and then funded those programs, the Government must

spend those appropriations to provide the mandated services

to refugees, whether the refugees number in the hundreds or

the tens of thousands. See Cmty. Legal Servs., 137 F.4th at

941.

18

Indeed, if there is ambiguity to be had here, it is over the word “may,”

which “is often treated as imposing a duty, rather than conferring a

discretion.” United States ex rel. Siegel v. Thoman, 156 U.S. 353, 359

(1895). When the words “shall” and “may” appear together, however,

they “indicat[e] command in the one and permission in the other.” Id. at

360.

19

Congress appropriated $3.178 billion for migration and refugee

assistance for FY25, see Pub. L. No. 119-4, § 1101(a)(11) (adopting

funding appropriated in division F of Pub. L. No. 118-147), which was

subsequently reduced by $800 million in the Rescissions Act of 2025,

Pub. L. No. 119-28, § 2(b)(6).

PACITO V. TRUMP 65

The Government’s position that § 1522(a)(1)(A)

requires the Government “to prioritize certain goals” only if,

at its option, it decides to provide resettlement services in the

first place is unconvincing. The Refugee Act provides that

the United States shall provide resettlement services to

newly arrived refugees. The Act further instructs the State

Department what services, consistent with the monies

appropriated, will be offered under the resettlement

program. And the Act requires the Government to submit a

detailed annual report to Congress on the resettlement

program, including a description of all resettlement services

provided and “the Director’s plans for improvement of

refugee resettlement.” 8 U.S.C. § 1523(b)(4). As with most

federal programs, there is play in the joints and the State

Department will have discretion in how the program is

run. But the Government does not have discretion whether

to provide resettlement services at all. So long as the United

States is admitting refugees, the Government has a duty to

provide them with resettlement services.

Adopting the Government’s position, the dissent focuses

on the prefatory language “[i]n providing assistance under

this section,” arguing that “in,” as it is used here, really

means “if.” See Dissenting Op. at 88–89 (quoting

§ 1522(a)(1)(A)). Although that may not be a grammatically

impossible reading of the statute, we do not believe it is the

best one. First, it does not comport with a common-sense

understanding of the language used. Consider, for example,

a scenario where a judge gives her law clerk the following

instructions: “In drafting this opinion, you shall address

arguments X, Y, and Z.” Should the clerk interpret those

instructions as a command to draft an opinion that includes

a discussion of X, Y, and Z arguments? Or should the clerk

construe them—as the dissent contends—to mean that he has

66 PACITO V. TRUMP

the option whether to draft the opinion at all, but that if he

does decide to draft it, he should make sure to address X, Y,

and Z? In this example, “in” is obviously not conditional;

the clerk is not making a decision about whether to draft the

opinion or not.

Congress has used similar “in providing” language in

other statutes that impose a mandatory duty on the

Government. Take 15 U.S.C. § 4724, for instance, the

structure of which closely resembles that of § 1522.

Section 4724(a) mandates that “the Secretary of

Commerce shall provide assistance for trade shows in the

United States,” while § 4724(b) clarifies that such

“[a]ssistance under subsection (a) may be provided to”

various identified entities. Section 4724(c)—like

§ 1522(a)(1)(A)—identifies the objectives of the mandatory

program: “In providing assistance under this section, the

Secretary of Commerce shall . . . make special efforts to

facilitate participation by small businesses and companies

new to export.” Similarly, 12 U.S.C. § 4113, which

mandates that the Government “shall” provide funds to

certain displaced low-income families “[t]o the extent

sufficient funds are made available under appropriations

Acts,” contains the qualification that “[i]n providing

assistance under this section, the Secretary shall allocate the

assistance on a regional basis.” The duty to provide

assistance in these examples is mandatory, not discretionary,

and the prefatory language does not alter that duty.

Although we recognize that “legislative history is not the

law,” Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523 (2018), the

Court continues to use legislative history in limited

circumstances. See, e.g., Zivotofsky, 576 U.S. at 31. Here,

“[t]hose who deem legislative history a useful interpretive

tool will find that the congressional history of [the Refugee

PACITO V. TRUMP 67

Act] supports [our] analysis.” Guerrero-Lasprilla v. Barr,

589 U.S. 221, 234 (2020). Nothing in the legislative history

of the Refugee Act, which created the current refugee

resettlement program, suggests that Congress intended the

program to be discretionary. To the contrary, the Senate

Report on the Refugee Act declares that the Act’s purpose is

to establish “a permanent and systematic procedure” to

provide “comprehensive and uniform provisions for

assistance to those refugees who are admitted,” thereby

“plac[ing] into law what we do for refugees now by custom.”

S. Rep. No. 96-256, at 1, 4 (1979). One of the bill’s “basic

objectives” was to “provide[] for federal support of the

refugee resettlement process . . . and extend[] coverage to all

refugees entering the United States for two years for cash

and medical benefits, and longer for other programs that help

the refugees normalize their lives in their adopted

communities.” Id. at 1–2. The Report unambiguously states

that “the federal government clearly has a responsibility to

assist states and local communities in resettling the refugees”

and explains that § 1522 “provides this assistance.” Id. at

10. The related House Conference Report further provides

that “the President is required to provide for a study of which

agency is best able to administer the resettlement grant

program,” while reserving for the President discretion “to

designate the appropriate agency and/or official to carry out

such responsibility.” H.R. Conf. Rep. No. 96-781, at 22

(1980) (emphasis added).

The Government argues that it acted within its lawful

discretion in terminating the cooperative agreements

because § 1522(b)(1)(A) merely “authorize[s],” rather than

mandates, the Government to enter into cooperative

agreements with resettlement agencies to provide certain

68 PACITO V. TRUMP

services. 20 To be sure, the Government does not necessarily

have to provide the § 1522 resettlement services through

these specific resettlement agencies or through the use of

cooperative agreements at all—the Government retains

discretion as to the method through which it provides the

services. But that discretion does not extend to rendering all

resettlement services effectively inoperative as the

Government appears to have done here. That the

Government may ultimately enjoy wide discretion as to how

and with whom it meets its statutory obligations does not

mean it may choose to shirk those obligations in the first

instance. Section 1522(a) imposes a mandatory duty on the

Government; § 1522(b) merely authorizes one potential

procedure through which the Government may discharge

that duty.

In short, we conclude that the word “shall” means just

that. And here, Congress has directed that the Government

“shall” provide certain services so long as there are funds

appropriated for that purpose. 8 U.S.C. § 1522(a)(1)(A). By

simultaneously terminating all cooperative agreements to

provide domestic resettlement services, the Government left

20

The dissent also points to the title of § 1522, “Authorization for

programs for domestic resettlement of and assistance to refugees,” as

evidence that the statute is merely permissive. Dissenting Op. at 87. We

do not think the term “authorization” can bear that weight. The term

“authorization” grants an agency the power to do something, but of itself,

the term does not tell us whether that authority is mandatory or

discretionary. A direction to do something is surely authorization to do

it. And while a title may serve as “a useful clue” to understanding an

unclear statutory provision, “[a] title [may] not supplant the actual text

of the provision.” Dubin v. United States, 599 U.S. 110, 121–24 (2023).

In this case, reading § 1522 as a whole persuades us that the authorization

to provide resettlement services is mandatory, and the title does not

dissuade us from that reading.

PACITO V. TRUMP 69

itself without a viable alternative means of providing those

statutorily mandated services. The district court therefore

did not abuse its discretion in concluding that the

Government likely acted contrary to law in so doing. 21

Arbitrary and Capricious. We also agree with the

district court’s conclusion that the termination of the

cooperative agreements was likely arbitrary and capricious.

First, the Government acted arbitrarily and capriciously in

suspending and terminating the cooperative agreements

without providing a reasoned explanation, factual findings,

or bases for the terminations. To survive review under the

arbitrary and capricious standard, an agency’s action must

have been the result of “reasoned decisionmaking.” See

Altera Corp. & Subsidiaries v. Comm’r of Internal Revenue,

926 F.3d 1061, 1080 (9th Cir. 2019) (quoting Motor Vehicle

Mfr. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 52 (1983)). To have engaged in reasoned

decisionmaking, the agency “must examine the relevant data

and articulate a satisfactory explanation for its action

including a ‘rational connection between the facts found and

the choice made.’” Id. (quoting State Farm, 463 U.S. at 43).

21

We note that the effect of our holding is not that the Government is

permanently prevented from terminating the cooperative agreements.

The district court’s injunctions merely restore the status quo before the

improper terminations and require the Government to establish an

alternative mechanism to provide the § 1522 services before it may

lawfully terminate the agreements. See, e.g., Nw. Envtl. Def. Ctr. v.

Bonneville Power Admin., 477 F.3d 668, 681 (9th Cir. 2007) (requiring

an agency that violated the APA by transferring functions to new

contractor “to fund the [original contractor], at least for a period of time

in which [the agency] can reconsider its action in accordance with [the

court’s] opinion”).

70 PACITO V. TRUMP

Agencies cannot defend rules from APA review with post

hoc rationalizations. See State Farm, 463 U.S. at 50.

The initial funding suspension on January 24 was done

purportedly pursuant to Executive Order No. 14169, titled

“Reevaluating and Realigning United States Foreign Aid.”

But an executive order that merely calls for a pause in

“foreign development assistance” cannot serve as reasonable

justification for the cessation of statutorily mandated

domestic services. See 8 U.S.C. § 1522(a)(3) (expressly

characterizing the services provided under § 1522 as

“domestic assistance”). Moreover, neither of the executive

orders at issue here even refers to—much less directs the

agencies to cease or defund—domestic resettlement

services.

In the February 26 termination notices, the only

explanation the Government provided for the terminations

was that they represented a “policy determination vested in

the Secretary of State” and a finding that the awards “no

longer effectuate[] agency priorities.” But as we have held,

although the Government may be entitled to change its mind

as to what agency priorities are, it “must supply a reasoned

analysis indicating that prior policies and standards are being

deliberately changed, not casually ignored.” Nw. Envtl. Def.

Ctr., 477 F.3d at 687. The Government supplied no such

analysis in the termination letters. The Government also

cites 2 C.F.R. § 200.340 as authority for the terminations, but

that regulation allows agencies to terminate cooperative

agreements only “to the extent authorized by law,” and we

have already concluded that it was contrary to law to

terminate the cooperative agreements in such a manner that

prevented the Government from fulfilling its statutory

obligations.

PACITO V. TRUMP 71

The Government also likely acted arbitrarily and

capriciously in terminating the cooperative agreements

without first considering the reliance interests of individual

refugees depending on the essential resettlement services

provided thereunder. The Supreme Court has explained that

an agency acts arbitrarily and capriciously if it changes

course without first considering legitimate reliance interests

in longstanding policies. DHS v. Regents of Univ. of Cal.,

591 U.S. 1, 30–33 (2020). To lawfully terminate the

cooperative agreements, therefore, the Government was

“required to assess whether there were reliance interests,

determine whether they were significant, and weigh any

such interests against competing policy concerns.” Id. at 33.

But there is no indication that the Government ever

considered the individual Plaintiffs’ reliance interests in

receiving resettlement services under the cooperative

agreements before issuing its termination notices. We thus

conclude that Plaintiffs’ APA challenge is likely to succeed

on this alternative ground.

V. REMAINING WINTER FACTORS

Because Plaintiffs have failed to show that there are even

serious questions as to the merits of their challenges to the

executive order, to the suspension of refugee processing and

admissions, and to the defunding of overseas refugee

services, we need not address the remaining Winter factors

as to those claims. See Disney Enters., Inc. v. VidAngel, Inc.,

869 F.3d 848, 856 (9th Cir. 2017) (“the court need not

consider the other factors” if no likelihood of success is

shown). But having determined that Plaintiffs have

demonstrated a strong likelihood of success on their APA

challenge to the defunding of domestic resettlement services,

we briefly address the remaining equitable factors with

respect to that claim only. We conclude that those factors

72 PACITO V. TRUMP

also weigh in favor of granting that portion of Plaintiffs’

requested relief.

A. Irreparable Harm

At minimum, the individual Plaintiffs who have recently

been admitted as refugees to the United States have

demonstrated that they would likely be irreparably harmed

absent injunctive relief. We have noted that “[i]rreparable

harm should be determined by reference to the purposes of

the statute being enforced.” Nat’l Wildlife Fed’n v. Nat’l

Marine Fisheries Serv., 886 F.3d 803, 818 (9th Cir. 2018).

The express purpose of § 1522 is fourfold: to “(i) make

available sufficient resources for employment training and

placement in order to achieve economic self-sufficiency

among refugees as quickly as possible, (ii) provide refugees

with the opportunity to acquire sufficient English language

training to enable them to become effectively resettled as

quickly as possible, (iii) insure that cash assistance is made

available to refugees in such a manner as not to discourage

their economic self-sufficiency, . . . and (iv) insure that

women have the same opportunities as men to participate in

training and instruction.” 8 U.S.C. § 1522(a)(1)(A).

For newly resettled refugees, the Government’s

termination of the cooperative agreements has ended access

to various statutorily mandated initial resettlement-support

services aimed at accomplishing these purposes. As the

district court found, these recent arrivals “have been cut off

from critical resettlement benefits and support services

needed to establish their new lives in America.” The loss of

access to these forms of support during the crucial period

after a refugee first enters the United States constitutes

irreparable harm. See E. Bay Sanctuary Covenant v. Biden,

993 F.3d 640, 677 (9th Cir. 2021) (harm is irreparable

PACITO V. TRUMP 73

“where parties cannot typically recover monetary damages

flowing from their injury—as is often the case in APA

cases”); Enyart v. Nat’l Conf. of Bar Exam’rs, Inc., 630 F.3d

1153, 1165 (9th Cir. 2011) (“loss of opportunity to pursue

[Plaintiffs’] chosen profession[s]” constitutes irreparable

harm).

Accordingly, the district court did not abuse its discretion

in concluding that the individual Plaintiffs would face

irreparable harm absent a preliminary injunction.

B. Balance of Equities & Public Interest

Because Plaintiffs have established a likelihood that the

Government’s termination of the cooperative agreements

violated the Refugee Act and the APA, we conclude that both

the public interest and the balance of equities tip sharply in

favor of injunctive relief. “[I]t is clear that it would not be

equitable or in the public’s interest to allow the

[Government] . . . to violate the requirements of federal law,

especially when there are no adequate remedies

available.” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029

(9th Cir. 2013) (citation omitted); see also East Bay

Sanctuary Covenant, 993 F.3d at 679 (“[T]he public has an

interest in ensuring that the ‘statutes enacted by [their]

representatives are not imperiled by executive fiat.’”

(citation omitted)); California v. Azar, 911 F.3d 558, 581 (9th

Cir. 2018) (“The public interest is served by compliance with

the APA.”). The public interest would be served here by

requiring the Government to comply with the requirements

imposed on it by Congress through the Refugee Act and the

APA.

On the other hand, the Government will suffer no harm

from being required to meet its statutory obligations.

Indeed, the Government has presented no evidence that it

74 PACITO V. TRUMP

would be harmed by such a limited-in-scope injunction

pending the district court’s final judgment on the merits. The

Government’s primary argument is that the district court’s

second injunction “forces the Government to expend

taxpayer funds in ways the Government has determined

contravene the interests of the country.” That argument is

not compelling where, as here, Congress appropriated funds

and commanded the Government to spend them on projects

it has expressly determined are in the public interest. See 8

U.S.C. § 1522(a). Moreover, because the district court’s

injunctions do not necessarily require the disbursement of

any funds to any specific entity, we are not convinced by the

Government’s argument that it will be irreparably harmed by

being forced to pay out funds that it cannot recover. Cf. NIH,

606 U.S. at ----; Dep’t of Educ., 604 U.S. at 651–52.

In sum, we conclude that Plaintiffs have made the

requisite showing as to all four Winter factors, and the

district court did not abuse its discretion in granting

injunctive relief to ensure the Government continues to

provide the domestic resettlement services mandated by

statute.

VI. SCOPE OF RELIEF

Recently, the Supreme Court determined that “universal

injunctions”—injunctions prohibiting enforcement of a law

or policy against anyone, anywhere—“likely exceed the

equitable authority that Congress has granted to federal

courts” under the Judiciary Act of 1789. Trump v. CASA,

Inc., 606 U.S. 831, 837 (2025). The Government argues that

the district court’s injunctions are so overly broad as to

constitute “universal injunctions” that run afoul of CASA.

We disagree.

PACITO V. TRUMP 75

CASA did not affect district courts’ ability to issue class-

wide injunctive relief. See CASA, 606 U.S. at 868 (Alito, J.,

concurring) (“Putting the kibosh on universal injunctions

does nothing to disrupt Rule 23’s requirements.”) And here,

the district court has certified three Rule 23 subclasses. That

class certification order is not on appeal. Because a class has

been certified, the district court’s injunctions comply with

CASA, and we need not address whether they would

constitute impermissible universal injunctions absent the

existence of a class. See CASA, 606 U.S. at 849–50.

VII. CONCLUSION

We recognize the enormous practical implications of this

decision. There are over one hundred thousand vetted and

conditionally approved refugees, many of whom may have

spent years completing the USRAP process in a third country

only to be turned away on the tarmac. But such a result is

one potential consequence of Congress’s sweeping grant of

power to the President to “suspend the entry of all aliens or

any class of aliens.” 8 U.S.C. § 1182(f). Whether that

consequence reflects prudent policy is not a question for this

court. To hold otherwise would be to substitute our

judgment for Congress’s, and the President’s authority under

§ 1182(f) precludes much of Plaintiffs’ request for relief

here.

Because Plaintiffs have not shown that they are likely to

succeed on the merits of their challenges to Executive Order

No. 14163, the cessation of refugee processing and

admissions, and the funding of refugee resettlement services

abroad, we reverse those portions of the preliminary

injunctions as an abuse of discretion. See Winter, 555 U.S.

at 32. But because Plaintiffs are likely to succeed on their

APA challenge to the termination of cooperative agreements

76 PACITO V. TRUMP

to provide domestic resettlement services, we affirm the

district court’s preliminary injunctions to the extent they

require the Government to reinstate such cooperative

agreements necessary to provide the resettlement services

described in § 1522 to refugees who have been admitted to

the United States. Each party shall bear its own costs on

appeal.

AFFIRMED IN PART; REVERSED IN PART.

LEE, Circuit Judge, dissenting in part:

I agree with Judge Bybee’s magisterial analysis in

Section IV.A. explaining why 8 U.S.C. § 1182(f) authorizes

the President to suspend the admissions of refugees. I,

however, dissent on two points, both of which are close calls.

First, I do not think we have jurisdiction over the

organizational plaintiffs’ claims because they effectively

seek reinstatement of funding for refugee resettlement

services. Such breach-of-contract claims seeking money

from the federal government must be heard by the Court of

Federal Claims. Second, even if we do have jurisdiction, I

believe the better reading of the statutory provisions is that

the United States has discretion whether to fund these

services.

I also write separately to highlight what happened in the

district court because it reflects a recent trend that I fear will

erode the credibility of the judiciary. To be clear, courts can

and should intervene if the President oversteps legal

bounds. We, however, must not be seduced by the

temptation of judicial resistance: District courts cannot

stand athwart, yelling “stop” just because they genuinely

PACITO V. TRUMP 77

believe they are the last refuge against policies that they

deem to be deeply unwise. Otherwise, we risk inching

towards an imperial judiciary that lords over the President

and Congress. Cf. Trump v. CASA, Inc., 606 U.S. 831, 858

(2025) (warning against “embracing an imperial judiciary”).

* * * *

When President Trump entered office on January 20,

2025, he suspended the admission of refugees, citing the

record number of migrants who had to come to our shores

during the last administration. See Executive Order 14163,

90 Fed. Reg. 8459 (Jan. 20, 2025), “Realigning the United

States Refugee Admissions Program.” Congress expressly

empowered the President to do so in clear and broad

statutory language: He can “suspend the entry of all aliens or

any class of aliens” whose entry he “finds” would be

“detrimental to the interests of the United States.” 8 U.S.C.

§ 1182(f). Only a few years ago, the Supreme Court upheld

President Trump’s so-called “Muslim ban,” stating that this

statutory provision “exudes deference to the President” and

that he could ban the entry of aliens from certain Muslim

countries with inadequate national security vetting. Trump

v. Hawaii, 585 U.S. 667, 683-84 (2018) (“By its plain

language, § 1182(f) grants the President broad discretion to

suspend the entry of aliens into the United States.”).

Yet the district court preliminarily enjoined the

President’s executive order suspending refugee admissions.

As the majority opinion explains, the district court’s order

cannot be squared with the statutory text or the Supreme

Court’s decision in Trump v. Hawaii.

Not surprisingly, an emergency motions panel of the

Ninth Circuit—consisting of Judges Silverman, Bade, and

de Alba—mostly stayed the district court’s preliminary

78 PACITO V. TRUMP

injunction, except that it temporarily allowed in those

refugees who had been conditionally approved for refugee

status before January 20. The plaintiffs insisted though that

the Ninth Circuit’s narrow carveout from the stay would

allow the admission of well over 100,000 refugees—a

number so high that an exasperated Ninth Circuit panel

remarked that its carveout “was not intended to compel the

government to admit more refugees than authorized for the

entire Fiscal Year 2025” and that the “Plaintiffs clearly grasp

that” the panel’s order was not intended to be that broad.

The Ninth Circuit panel explained that its stay order

included only a narrow exception for people like “Plaintiff

Pacito, who sold all of his belongings in anticipation of

flying to safety in the United States and was forced to shelter

with his wife and baby in the parking lot of the U.S. embassy

in Nairobi after their travel was abruptly cancelled.” The

panel emphasized that those who have “strong reliance

interest arising prior to January 20, 2025” means people

“comparable to Plaintiff Pacito.” The U.S. government then

started admitting people with reliance interests similar to

Pacito’s.

Despite this stay imposed by the Ninth Circuit, the

district court issued a “Compliance Framework Order” that

expanded the categories of refugees who could be admitted.

It held that refugees “whose travel was canceled before

January 20 [i.e., before the EO went into effect] are not

necessarily excluded from the injunctive relief”—even

though the Ninth Circuit expressly held that an individual

must have had “confirmable travel plans to the United

States” as of January 20, 2025, to be admitted. So even those

who had their travel plans cancelled in December 2024

during the Biden administration might have been eligible for

admission if their plans would have been rescheduled but for

PACITO V. TRUMP 79

the EO. The district court also presumed Afghan refugees at

Camp As Sayliyah could be admitted, despite the Ninth

Circuit’s stay order including no such exception. The district

court’s “Compliance Framework Order” was in deep tension

with the Ninth Circuit emergency motion panel’s stay

orders.

The district court then allowed the plaintiffs’ lawyers (at

a non-governmental organization (NGO) and Perkins Coie)

to initially review the court-ordered survey responses from

potentially thousands of refugees to flag who might have

significant reliance interests to qualify for admission. The

government then had seven days to decide whether it

disagreed. If it did so, the plaintiffs would submit a six-page

brief to the magistrate judge (with no time limit for

submitting it); the government, however, would have only

four days to file its opposition brief. Then a magistrate judge

would submit its recommendation, and finally the district

court would make the ultimate decision. This would happen

for every potential person that the plaintiffs identified as

having a strong reliance interest.

The district court at one point even ordered the United

States to “submit weekly reports to the Court detailing

actions taken since the last report to comply with the Court’s

injunctions”—in effect, a weekly homework assignment for

the President.

Our constitutional structure will topple if a single district

court sits atop the President, Congress, the Supreme Court,

and the federal appellate court. As Alexander Hamilton

noted in The Federalist No. 78, the judiciary is the “weakest”

branch because it has “neither FORCE nor WILL” but

“merely judgment.” We do not have the legitimacy of

Congress because we are unelected and unaccountable to the

80 PACITO V. TRUMP

people. And we lack the power to enforce our own decisions

and depend on the executive branch to enforce them. We

thus rely solely on our credibility as neutral arbiters of the

law, the most precious asset we have as judges. That means

we must scrupulously stay in our legal lane and abide by the

separation of powers system established by the Framers. Not

only that, we inferior court judges must pay heed to the

Supreme Court. As Justice Gorsuch admonished, “[l]ower

court judges may sometimes disagree with [the Supreme]

Court’s decisions, but they are never free to defy them.”

Nat’l Insts. of Health v. Am. Pub. Health Ass’n (NIH), 145 S.

Ct. 2658, 2663 (2025) (Gorsuch, J., concurring in part and

dissenting in part).

None of this means that judges are automatons without

personal views, even strong ones. As an immigrant, I am

forever grateful to the United States for welcoming our

family and feel blessed to enjoy the liberties and

opportunities provided by our great country. This experience

shapes my own personal views on various policy issues. But

whatever personal opinions I may have, they cannot and

must not have any bearing on the legal issues before us. Our

allegiance is always to the law and the Constitution. See

William H. Pryor, Jr. “The Judicial Oath and the Judgment

of History,” Public Discourse (Dec. 29, 2025), available at

https://www.thepublicdiscourse.com/2025/12/99817/

(“Judges swear before God to uphold the Constitution and

laws of the United States wherever it leads. We do not swear

to follow a prediction or speculation about what future

generations will favor.”).

PACITO V. TRUMP 81

* * * *

I. We lack jurisdiction to consider the plaintiffs’

claims seeking funding.

The Supreme Court recently reiterated in its interim

docket orders that the Tucker Act requires cases against the

federal government sounding in contract law to be brought

before the Court of Federal Claims. 28 U.S.C. § 1491(a)(1);

Dep't of Educ. v. California, 604 U.S. 650, 651 (2025); see

also NIH, 145 S.Ct. at 2660 (plurality opinion). The

majority, however, contends that this jurisdictional

restriction does not apply here because plaintiffs do not seek

“to enforce a contractual obligation to pay money.” Great-

West Life & Annuity Ins. Co v. Knudson, 534 U.S. 204, 212

(2002). I disagree.

As the majority opinion notes, our court has adopted the

D.C. Circuit’s Megapulse test to determine whether a claim

against the federal government belongs in a district court or

the Court of Federal Claims. United Aeronautical Corp. v.

U.S. Air Force, 80 F.4th 1017, 1026 (9th Cir. 2023) (adopting

the two-part test from Megapulse, Inc. v. Lewis, 672 F.2d

959, 968 (D.C. Cir. 1982)). Under Megapulse, we look to

(1) “the source of rights” undergirding the claims and (2) the

“type of relief sought (or appropriate).” 672 F.2d at 968. If

a party’s “rights and remedies are contractually based,” then

“only the Court of Federal Claims” has jurisdiction over the

claim. United Aeronautical Corp., 80 F.4th at 1026

(emphasis in original). And a “contract-based action falls

within the scope of the Tucker Act” if the plaintiff “seeks

money damages for the breach of a government contract”

(rather than injunctive relief based on a statutory or

constitutional claim). Id. (emphasis in original). In other

words, a claim belongs in the Court of Federal Claims if a

82 PACITO V. TRUMP

party essentially seeks monetary relief based on a contract.

I address each prong of the Megapulse test below.

A. The organizational plaintiffs’ “source of rights”

arises from a contract.

The majority opinion correctly points out that the

organizational plaintiffs’ alleged rights arise out of their

“cooperative agreements” with the federal government. The

majority, however, thinks cooperative agreements are not

sufficiently contractual. To reach that end, the majority

opinion tries to distinguish a cooperative agreement from a

typical government contract. But if we examine the nature

of these agreements, the organizational plaintiffs are

effectively seeking money damages based on their contract.

The majority opinion seeks refuge in the Federal Grant

and Cooperative Agreement Act of 1977 (FGCAA) which

defines grants, cooperative agreements, and procurement

contracts. See 31 U.S.C. §§ 6301–08. Procurement

contracts under the FGCAA necessarily involve the federal

government directly as a party to the bargain. 31 U.S.C.

§ 6303. Grants involve the federal government the least, as

all they require are disbursement and occasional supervision.

31 U.S.C. § 6304. Cooperative agreements are in between.

See 31 U.S.C. § 6305. These agreements benefit individuals

or entities who also expect the federal government’s

“substantial involvement.” Id. In other words, on a sliding

scale analysis, grants are least like contracts; cooperative

agreements are in the middle; and contracts are contracts.

See 31 U.S.C. §§ 6303–05.

Using this framework, the majority opinion claims that

the State Department’s “substantial involvement” in

providing services to third parties separates these

arrangements from contractual relationships. But

PACITO V. TRUMP 83

contracts—such as service contracts or those agreements

with good-faith effort provisions—can often require

substantial involvement of parties. So “substantial

involvement” alone cannot be the dispositive factor. The

majority also claims that a cooperative agreement is unlike a

contract because the government itself does not directly

benefit from it. But third-party beneficiary contracts—in

which one of the parties does not directly benefit from the

agreement—are common. See CONTRACT, Black's Law

Dictionary (12th ed. 2024) (defining third-party-beneficiary

contracts). A contract does not stop being a contract just

because a third party is the intended beneficiary.

Most importantly, the Supreme Court in recent orders on

the interim docket has hinted at a more functional framework

for Tucker Act questions: It looks at whether a claim seeks

“to enforce a contractual obligation to pay money.” Dep’t of

Educ., 604 U.S. at 651 (quoting Great-West Life & Annuity

Ins. Co., 534 U.S. at 212). If so, then it belongs in the Court

of Federal Claims. See id. (“[T]he Tucker Act grants the

Court of Federal Claims jurisdiction over suits based on ‘any

express or implied contract with the United States.’”)

(quoting 28 U.S.C. § 1491(a)(1)); cf. Megapulse, 672 F.2d at

968 (second factor looking at “the type of relief sought (or

appropriate)”). In Department of Education, the Court

applied this principle in issuing a stay in a grant funding

dispute and ruling that it likely must be brought in the Court

of Federal Claims. 604 U.S. at 651–652. Likewise, in NIH,

the Court held that a claim based on the government’s

“termination of various research-related grants” seeks to

enforce an “obligation to pay money pursuant to those

grants” and thus likely cannot be raised as an APA claim in

district court. 145 S. Ct. 2658 at 2660. In short, the Supreme

84 PACITO V. TRUMP

Court has strongly suggested that even suits based on federal

grants belong in the Court of Federal Claims. 1

The majority opinion thus potentially leads to odd ends.

It envisions a world where claims based on procurement

contracts (the most contract-like) and grants (the least

contract-like) may go to the Court of Federal Claims, but

claims arising from cooperative agreements (more like

contracts than grants) may be at home in district court. This

is a confusing result.

Here, the organizational plaintiffs demand the federal

government to reinstate funding. As they put it in their

complaint, they want the court to “direct[]” the government

to “restore funding pursuant to the terms of all cooperative

agreements.” Put another way, they want the court to

enforce an “obligation to pay money pursuant to those”

cooperative agreements. NIH, 145 S. Ct. 2658 at 2660. Such

a claim belongs in the Court of Federal Claims. 2

1

To be sure, the majority cites several cases that suggest a difference

between procurement contracts and cooperative agreements. But all

those cases except one predate the Supreme Court’s 2025 Tucker Act

orders, which appear to adopt a more pragmatic analysis (i.e., whether

the plaintiff is seeking money from the federal government arising out of

a contract). The one half-exception is a D.C. district court case in which

“[n]o count claim[ed] that plaintiffs are entitled to relief because of any

term or condition of their cooperative agreements . . . or any alleged

breach of those agreements.” Am. Ctr. For Int’l Solidarity v. Chavez-

Deremer, 789 F. Supp. 3d 66, 84 (D.D.C. 2025). In contrast here, the

organizational plaintiffs seek funding reinstatement based on the

cooperative agreements.

2

It is less clear whether the individual plaintiffs—who are not express

parties to these cooperative agreements—are seeking monetary relief

based on a contract (though perhaps they may be characterized as third-

party beneficiaries of the cooperative agreements). In any event, as

PACITO V. TRUMP 85

B. The “type of relief sought” here is money based

on a contract.

We next turn to “the type of relief sought” under the

Megapulse two-part analysis. Megapulse, 672 F.2d at 968.

“If rights and remedies are statutorily or constitutionally

based, then districts courts have jurisdiction; if rights and

remedies are contractually based then only the Court of

Federal Claims does, even if the plaintiff formally seeks

injunctive relief.” United Aeronautical Corp., 80 F.4th at

1026 (emphases in original).

Organizational and individual plaintiffs in their

complaint make clear that they want funding in the

cooperative agreements restored. The majority opinion,

however, distinguishes this ask from those in the NIH and

Department of Education cases by claiming those were

contractual because the plaintiffs there sought past-due

payment under the grants. In contrast here, the majority

says, the plaintiffs seek “to enforce a statutory mandate”

which only incidentally results in the payment of money.

But we must be wary of “an APA action seeking

injunctive and declaratory relief” when in reality it

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

Aeronautical, 80 F.4th at 1026. A plaintiff cannot point to a

statute to avoid the Court of Federal Claims when it is

seeking money based on a contract. And centrally here, the

organizational plaintiffs want the federal government to turn

on the funding spigot again—and receive the flow of money

under the cooperative agreements. Indeed, the plaintiffs, the

district court, and the majority opinion highlight the critical

explained later, their claims are unavailing because funding under § 1522

is not mandatory and thus grants no statutory rights to sue.

86 PACITO V. TRUMP

role of cooperative agreements in the program’s operation.

The district court framed the termination’s impact in terms

of funding cuts that led to layoffs, furloughs, and service

reduction. The plaintiffs’ prayer for relief also focuses on

the funding through these cooperative agreements. And their

motion for preliminary injunction refers to the “USRAP

Funding Termination,” “contract-termination clauses,” and

the “termination of USRAP-related funding.” 3 Money is the

core of the claim. This lawsuit belongs to the Court of

Federal Claims.

II. Section 1522 does not mandate the funding of

resettlement services.

Even if we have jurisdiction over these claims, I believe

they fail because Section 1522 gives the federal government

discretion whether to fund the resettlement services.

My colleagues interpret 8 U.S.C. § 1522 as requiring the

government to provide certain services to refugees, pointing

to the word “shall” in subsection (a)(1)(A). It is a close call,

but I believe the statute merely authorizes—and does not

mandate—funding.

This is apparent when the statute is viewed as a whole.

See Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 167 (2012) (“Perhaps no

interpretive fault is more common than the failure to follow

the whole-text cannon, which calls on the judicial interpreter

3

The majority argues that the organizational plaintiffs really seek the

refugee resettlement program’s restoration no matter their own funding

status. The pleadings and the district court’s analysis counter this claim.

The organizational plaintiffs paint the impact of the termination in

financial terms and they seek restoration of the agreements which grant

them federal funds.

PACITO V. TRUMP 87

to consider the entire text, in view of its structure and of the

physical and logical relation of its many parts.”).

We start with the title: Section 1522’s is titled

“Authorization for programs for domestic resettlement of

and assistance to refugees.” (emphasis added).

Authorization is permissive, not mandatory.

AUTHORIZATION, Black's Law Dictionary (12th ed.

2024) (defining it as “permission to do something” or the

“official document granting such permission”).

While titles are not the operative text, the Supreme Court

has held that they provide helpful context in determining a

statute’s meaning. See Almendarez-Torres v. United States,

523 U.S. 224, 234 (1998) (“‘the title of a statute and the

heading of a section’ are ‘tools available for the resolution of

a doubt’ about the meaning of a statute.” (quoting Trainmen

v. Balt. & Ohio R. Co., 331 U.S. 519, 528–29 (1947)); King

v. Burwell, 576 U.S. 473, 492 (2015) (“‘A provision that may

seem ambiguous in isolation is often clarified by the

remainder of the statutory scheme ... because only one of the

permissible meanings produces a substantive effect that is

compatible with the rest of the law.’” (quoting United Sav.

Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd.,

484 U.S. 365, 371 (1988)).

The statutory language in the operative funding

provision in § 1522 underscores that funding is

discretionary. The four specific statutory provisions that

provide funding for different refugee services—e.g.,

“Program of initial resettlement,” “Cash assistance and

medical assistance to refugees”—all state in their text that

the “Director is authorized” to provide assistance. 8 U.S.C.

§ 1522(b)-(e) (emphasis added). This text explicitly grants

the executive branch discretion over funding. Confederated

88 PACITO V. TRUMP

Salish & Kootenai Tribes v. United States, 343 F.3d 1193,

1196 (9th Cir. 2003) (noting that the term “authorize” has

“the connotation of being permissive, rather than

mandatory” (cleaned up)).

In arguing that Section 1522 imposes mandatory

funding, my colleagues look to § 1522(a)—illustratively

titled “Conditions and considerations”—and focus on the

word “shall”:

(a) Conditions and considerations

(1)(A) In providing assistance under this

section, the Director shall, to the extent of

available appropriations, (i) make available

sufficient resources for employment

training and placement in order to achieve

economic self-sufficiency among refugees

as quickly as possible, (ii) provide refugees

with the opportunity to acquire sufficient

English language training to enable them to

become effectively resettled as quickly as

possible, (iii) insure that cash assistance is

made available to refugees in such a

manner as not to discourage their economic

self-sufficiency, in accordance with

subsection (e)(2), and (iv) insure that

women have the same opportunities as men

to participate in training and instruction.

But the “shall” language is qualified by the immediately

preceding phrase: “In providing assistance under this

section [i.e., the discretionary funding provisions under

§ 1522(b)-(e)]. . .” In other words, § 1522(a) imposes

certain mandatory “conditions and considerations” if

PACITO V. TRUMP 89

the government chooses to fund refugee programs.

For example, under subsection (a)(1)(A)(i), the Director

“shall. . . make available sufficient resources for

employment training and placement [under § 1522(c)’s

discretionary funding for “Project grants and contracts for

services for refugees”] in order to achieve economic self-

sufficiency among refugees as quickly as possible.” Stated

differently, if the government chooses to fund employment

training, it shall consider “economic self-sufficiency . . . as

quickly as possible” as a “consideration” that must be taken

into account (e.g., employment training should focus on

training to be, say, an electrician, not a poetry teacher). 4

The rest of the statutory provision imposes similar

conditions and considerations to discretionary funding.

Subsection (a)(1)(A)(ii) emphasizes that a key

“consideration” for funding is that refugees should learn

“sufficient English.” Subsection (iii) imposes a condition on

“cash

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