Pacito v. Trump - Ninth Circuit Court Opinion on Refugee Admissions

FOR PUBLICAT ION UNITE D STATES COURT OF APPE ALS FOR THE NI NTH CIR CUIT PACITO; ESTHER; JOSEPHINE; SARA; ALYAS; MARCOS; AHMED; RACHEL; ALI; HIAS, INC.; CHURC H WORLD SERVICE, INC.; LUTHERAN C OMMUN ITY SERVICES NORTHWE ST, Plaintiffs - Appel lees, v. DONALD J. TRUMP, in his official capacit y as Pres ident of th e United States; MARCO RU BIO, in his official capacit y as Se cret ary of St ate; KRISTI NOEM, in her offic ial capacit y as Secr etary o f Homel and Security; ROBERT F. KENNEDY JR., in h is official capacit y as Secretary of Health and Human Services, Defendants - Appellants. No s. 25-1313, 25-1939 D.C. No. 2:25- cv -00255- JNW OPINION Appeal f rom the United States Distr ict Court for the We stern Distric t of Washington Jamal N. Whitehead, District Judge, Presiding

2 P ACITO V. T RUM P Argued and Submitted September 3, 2025 Pasaden a, Calif orni a 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 pan el affi rmed in part an d rev ersed in pa rt 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, 202 5), 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 s ummary consti tutes no par t of the opi nion of the c ourt. It ha s been pre pared by c ourt staff for the convenie nce of t he reader.

P ACITO V. T RUM P 3 State Department’s suspension of USRAP violated the Admin istrat ive Pro cedure Act (“APA ”). The panel concl uded th at Pl ainti ffs 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 author ity under 8 U.S.C. § 1182(f) and the Refugee Act. As to the sections of th e executive order that suspend the admission of approved re fugees to the United States, the pan el reject ed the di strict cour t’s co ncerns that the Pre sident impermiss ibly suspended U SRAP in its entirety and indefinitely. As to the s ection 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 unr eviewable. First, the Government ar gued that APA does not provide an avenue for r eview because the Court of Federal Claims has exclusive jurisdiction over the organizational Plaintiffs’ claims under the Tucker Act. Reje cting that contention, the panel concluded that neither the source of the rights upon which Plaintiffs based their cl ai ms nor the relief sought sounded in contract. Next, the Government argued that the actions of the Presid ent and t he agen cies w ere not review able b ecause 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 refug ee reset tlement, the panel concluded that the Governme nt had not rebutted the strong presumption favoring judicial review.

4 P ACITO V. T RUM P Finally, the Government argued that there is no “fina l 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 agenc y within the meaning of the APA. Wit h respect t o the agen cies ’ decis ion to defund the refugee program, the panel rejected the argument that t here was no final agency acti on becau se the State Dep artment ultimate ly terminate d funding. Turning to the merits of Plaintiff s’ APA challe nges, the panel could not conclude that it was a rbitrary 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 D epartment should be required to maintain an overseas structure capable of processi ng tens of thousands of applications w hen the executive order ha s limited entr y to case -by- case consid eration. 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 p rovide statutorily mandated services to refu gees alre ady admi tted t o the Unit ed States. The panel also concluded that the ter mi nation of cooperati ve agre ement s with resettl ement su pport cen ters was likely arbitrary and c apricious because the Government failed to provide reasoned explanations, factual findings, or bases for the termination, and also ter minated the cooperative agreements without first conside ring the reliance interests of individual refugees. Turning to the remaining Winter factors with respect to Plaintiffs’ APA challenge to the defunding of domestic resettl ement s ervices, the panel con cluded t hat t hose facto rs also weighed in Plaintiffs’ favor.

P ACITO V. T RUM P 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 T rump v. CASA, Inc., 606 U.S. 831 (2025). B ecause CASA did not affect distric t courts’ ability to issue class - wide in juncti ve rel ief an d a cl ass had b een certi fied in t his case, the pane l concluded t hat the district court’s injunctions complied w ith CASA. Dissenting in part, Judge Lee disagreed on two points. First, Judge Le e did not think the court had jurisdiction o ver the organiza tional plaintiffs’ claims because they are br each - of- contract claims seeking money from the federal government and thus must b e heard by t he Court of F ederal Claims. Second, even assuming jurisdiction, the better reading of the statutory provisions is that the United States has discretion whether t o fund these services. Judge Le e also wrote separately to h ighlight that d istrict 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 lor ds over the President and Congress.

6 P ACITO V. T RUM P COUNSEL Linda B. Evarts (argued), Mevlüde A. Alp, Pedro Sepulveda Jr., and Deepa Al agesan, Inte rnation al Refug ee As sist ance Project, New York, New York; Melissa S. Kea ney (argued), Internat ional R efugee A ssist ance Proj ect, Fai r Oaks, California; Laurie B. Cooper, International Refugee Assistance Project, Washington, D.C.; Megan M. Ha uptman and Laurie B. Cooper, International Refugee Assistance Project, Washington, D.C.; Harry H. Schne ider Jr., Jonathan P. Hawley, and Shireen Lankara ni, Perkins Coie LLP, Seattl e, Wa shington; 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- Appell ees. Tiberius T. Davis (argued), August E. Flentje, Joseph McCarter, Lindsay W. Zimliki, Jason K. Zubata, I lana Kramer, and Alex andra Yeatts, Trial At torneys; Offi ce of Immigr ation Litigation, Civil Division; David Kim, Senior Litigation Counsel; Drew C. Ensign, Deputy Assistant Attorney General; Yaakov M. Roth, Principal Deputy Assistant Attorney General; Erne sto H. Molina, Deputy Direc tor; Brett A. Shumate, A ssistant Attorney Ge neral; United States Department of Justice, Washington, D.C.; for Defend ant -Appellants. Elizabeth B. Wydra, Brianne J. Gorod, Miriam Becker - Cohen, and Nina G. Henry, Constitut ional Accountability Center, Washington, D.C., for Amicus Curiae Constitutional Accountability Center. Andrew L. Schlafly, Far Hills, New Jersey, for Ami ci Curiae Immigr ation Reform Law Institu te.

P ACITO V. T RUM P 7 Fawn J. Rajbhandari - Korr, Lindsay Nako, and Lori Rifkin, Impact Fund, Berkeley, California, for Amici Curiae The Impact Fund, Justice in Aging, Refug ee and Immigrant Center for Educa tion, Ce ntro Legal de la Raz a, Contra Costa Senio r Legal Ser vices, Diverse Elders C oalit ion, L a Raza Centro Legal, Oas is L egal Serv ices, Sel f - Help for the Elderly, and Southeast Asia Resource Action Center. Hannah C. Vail and Brett M. Gannon, Assistant Attorneys General; E lizabeth D. Matos, Chief, Civil Rights Division; Tasha J. Bahal, Deputy Solicitor General; Andrea J. Campbell, Commonwealth of Massachuse tts Attorney General; Office of the Commonwealth of M as sachuset ts 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 A ttorney General, Office of the Cal iforni a Attorney Gener al, S acrament o, C aliforn ia; Philip J. Weiser, Colorado Attorney General, Of fice of the Colorado Attorney General, Denver, Colorado; William Tong, Connecticut Attorney General, Office of the Connecticut Attorney General, Hartford, Connecticut; Kathleen Jennin gs, Del aware At torn ey Gen eral, O ffice of the Delaware Attorney Gener al, Wilmington, Delaw are; Anne E. Lopez, Hawai‘i Attorney Gene ral, Office of the Hawai‘i Attorney General, Honolulu, Hawai ‘i; Kwame Raoul, Illinois Attorney General, Off ice of the Illinois Attorney General, Chicago, Illinois; Aaron M. F rey, Maine Attorn ey Gener al, Of fic e of the Maine Attorney General, Augusta, Maine; Anthony G. Brown, Maryland Attorney General, Offi ce of th e Maryl and A ttorney Gene ral,

8 P ACITO V. T RUM P Balti more, M aryland; Dana Nessel, Mich igan Attorn ey General, Office of the Michigan Attorney General, Lansing, Michigan; Keith Ellison, Minnesota Attorney Gene ral, Office of the Minnesota Attorney Ge neral, S t. Paul, Minnesota; Aaron D. Ford, Nevada Attorne y Gene ral, Offic e of the Nevada Attorney General, Carson City, Nevada; Matth ew J. Pl atkin, New Jersey At torney G ener al, Office o f the New Jersey A ttorne y General, Trenton, New Jersey; Letit ia James, New York Attorn ey General, Offi ce of the New York Attorne y General, New York, New York; Dan Rayfield, Oregon Attorney General, Office of the Ore gon Attorney General, Salem, Oregon; Peter F. Neron ha, Rhode Island A ttorney Gen eral, Office o f the R hod e Island Attorney General, Providence, Rhode Island; Joshua L. Ka ul, Wisconsin Attorney Genera l, 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, Delawar e, Hawai‘i, I llinois, Ma ine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, Ver mont, 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 Yo rk; Alexis N. Dyschkant and Evan K.W. Matsuda, Covington & Burling LLP, Washington, D.C.; for Amici Curiae Fo rmer U.S. Govern ment Officials. Linda Dakin - Grimm, Milbank LLP, Los Angeles, California; Atara Miller, V ictor Hollen berg, and Alex

P ACITO V. T RUM P 9 Ruppert, Milbank LLP, New York, New York; for Amici Curiae B et Tzed ek L egal S ervices and Fait h - Based Organizations. Gregory L. Diskant, Jonah Wacholder, Ia n D. E ppler, and Colleen Anderson, Patterson Belknap Webb & T yler LLP, New York, New York, for Amici Curiae Ethiopian Community Development Council and Luthe ran Services Caroli nas. 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 P ACITO V. T RUM P 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. 2 0, 2025). Pursuant to 8 U.S.C. §§ 1 182(f) and 1 185(a), the President determi ned that “en try i nto t he United St ates of refug ees under the [U nited S tates Refugee Admissions Program (USRAP)] w ould be detrime ntal to the inte rests of the United States ” and dir ected that “ent ry int o the Uni ted Stat es of refugees under the USRAP be suspended” pending further findings. Exec. Order. No. 14163, § 3(a). In respons e to the Executi ve Order, the Dep artment o f St ate sus pended all funding of the USRAP program, purportedly pu rsuant to a different ex ecutiv e or der ent itled “Reeval uat ing 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 t he United States seeking refugee status here and (2) dome stic resettl ement s ervices fo r refu gees admi tted to the United States. P laintif fs are refugees who have been recently admi tted to the Unite d States; refugees who have been approved for resettle ment in the United States but rema in outside the country; U.S. - based individuals seeking admission for their family members or sp onsees; and three organizations that had cooper ative ag reemen ts wit h the Stat e Departmen t to provide overseas processing and domestic resettlement services. P laintif fs alle g e that Executive Order N o. 14163’ s suspension of the refugee program violates the Refug ee Act

P ACITO V. T RUM P 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. §§ 1 101 et seq.), and tha t the defunding of USRAP violates various provisions of the Administrative Procedure Act, 5 U.S.C. § 551 et seq. The district cour t issued two prelimina ry injunction s prohibiting the enforcement or implementa tion of §§ 3(a), (b), (c), and 4 of Executive Order No. 14163 an d the suspension of USRAP funding and reinstatin g the termina ted 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 f or our consideration.” Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 165 (1993). “W e do not sit as a com mitt ee of revi ew .. ..” T V A v. Hill, 437 U.S. 153, 194 – 95 (1978). W e conclude that, with one exception, Plaintif fs ha ve not mad e the requisit e showing that they are likely to succee d on the merits. W e thus vacate the pre liminary injunction s in lar ge measure. I. BACKGROUND A. Constitutional and Statutory Backgr ound In this sec tion, we first re view the constitutiona l framework for the power of the political branches to regulate the admission of aliens to the United States. W e the n consider the statutory authorities and describe ho w USRAP works in practice. Because of the breadth of Plainti f fs’ challenge and the c omplexit y of USRAP, we set this forth in some deta il.

12 P ACITO V. T RUM P 1. Constitutional Framework It has long been “an accepted maxim of international law, that every sovere ign nation has the power, as inher ent in sovereignty, and essential to self - preser vation, to forbid the entrance of foreigners within its dominions, or to a dmit them only in such ca se s and upon such conditions as it may see fit to prescribe.” Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892). It is be yond dispute that “[t]he e xclusion of aliens is a fundamental act of sover eignty.” U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); see Landon v. Plasencia, 459 U.S. 21, 32 (198 2). The Constitution commits this “broad, undoubted power over the subject of immigration and the status of a liens” to Congress and the President. Arizona v. United States, 567 U.S. 387, 394 (2012); see al so Fiallo v. Bell, 430 U.S. 787, 79 2 (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 “regul ate Commerce with foreign Nations,” id. art. I, § 8, cl. 3, and to “declar e W ar,” id. art. I, § 8, cl. 1 1, facilitated by the more general po wer “[t]o m ake al l Laws whi ch s hall be necessa ry and proper for c arrying int o Execution the foregoing Powers, ” i d. art. I, § 8, cl. 18. The Supreme Court has long read these provisions as gra nting Congress plenary power to establish the country’ s su bstantive 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 a liens 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 Nav i gation Co. v. Stranahan, 214 U.S. 320, 339 (1909)).

P ACITO V. T RUM P 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 af fairs does no t 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 A mbassadors and other public Ministers,” U.S. Const. art. II, § 3, and secondarily from the Presi den t ’s role as “Comm ander in Chief, ” id. art. II, § 2, cl. 1, the V e sting Clause, id. art. II, § 1, cl. 1, and the President’ s broad responsibility to “take Care that t he Laws be fai thfull y executed,” id. art. II, § 3; see al so Zivot ofsky ex rel. Zivotof sky v. Ker ry, 576 U.S. 1, 33 – 34 (20 15). Indeed, “ Article II of the Constitution h as recognized the President’ s ‘vast share of responsibility for the conduct of our foreign relations.’” Garamendi, 539 U.S. at 414 (quoting Y oungstown Sheet & T ube Co. v. Sawyer, 343 U.S. 579, 610 – 1 1 (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 wi th the P residen t.” K nauff, 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), deter mi nes who is admissible, under what terms they may be admitted, and under what conditions they may be excluded or removed. See Mathews v. Diaz, 42 6 U.S. 67, 8 2–83 (1976); Galvan v. P re s s, 347 U.S. 522, 531 (1954). The Pre sident, possessing the discretion to admit or exclude aliens when Congress has

14 P ACITO V. T RUM P delegated him the power to do so, executes the policy. See T rump v. Hawaii, 585 U.S. 667, 683–85 (2018). 2. Statutory Background a. The Immigra tion and Nationality A ct A dmission of r efugees. Congress enacted the Immigration and Nationality Act of 1952 (INA), codified at 8 U.S.C. § 1 101 et seq., to establish “a compr ehens ive and complet e code cov ering all as pects of ad missi on of al iens to this country.” Elkins v. Mor eno, 435 U.S. 647, 664 (1978); see also Immigration and Nationality Act, U.S. Citi zenship & Immigr. Ser vs. (last updated July 10, 2019), https://perma.cc/J6DK - B 6LG (in enacting the INA, Congress “collected many provisions and reorganized the structur e of immi gration law”). Thr ough the INA, Congress prescribed the ter ms 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 natural ized as U.S. ci tizen s. See 8 U.S.C. § 1 101 et seq. The INA defines an “alie n” as “any pe rson n ot a ci tizen or national of the Unite d States.” 8 U.S.C. § 1 101(a)(3). “The te rms ‘admission’ and ‘admitte d ’ ” ref er to “t he lawful entry of [an] alien into the United States.” Id. § 1 101(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. § 1 181(a). Section 1 182 of the INA details various conditions under which an alien may be ineligible for admission. See id.

P ACITO V. T RUM P 15 § 1 182(a)(1)– (10) (def ini ng “[c]lasses of aliens ineligible for visas or admission”). It further provides: Whenev er the Pr esiden t fi nds th at the ent ry of any aliens or of any class of aliens into the United State s would be detrime ntal to the interests of the United States, he may by proclamation, and for such period as he shall deem ne cessary, suspend the entr y o f 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. § 1 182(f). Congres s has am ended t he INA several times over t he years. Parti cularl y relev ant t o thi s app eal, th e Ref ugee Act of 1980 amended the INA “to revise the procedures for the admission of refugees” and to “establish a m ore uniform basis for the provision of assistance to re fugees.” Pub. L. No. 96 - 212, 94 Stat. 102 (1980). In the years leading up to the Refuge e Act’ s passage, refugee admission policy had been “react ive and p iec emeal as i t grew in respo nse to humani tarian c rises and ethnic co nflict s.” Policy Manual Chapter 1 - Purpose and Backgr ound, U.S. Cit izenship & Immigr. S ervs. (last up dated D ec. 12, 2025), https://perma.cc/XQ6K - 3XKN. In an attempt to address these i ssues, C ongres s pas sed the R efugee Act to establi sh “a permanent and systematic procedure for the admission to this country of refugee s of special humanitarian concern to the United States, and to provide compreh ensive an d uniform provisions for [their] ef fective resettlement.” Pub. L. No. 96-212, § 101(b), 94 Stat. at 102.

16 P ACITO V. T RUM P T o accomplish this end, the Refugee Act made a number of changes to the INA. F irst, it established a uniform definition for “refugee” as a person who (1) “is outsi de 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 c ountry” (3) “becau se of p ersecu tion or a well - founded fear of persecution on acc ount of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1 101(a)(42). Import antly, the Refug ee Act exem pted alien s who qualif y as “refu gees ” from the st andard visa r equir ement and admission procedures specified in the INA. 8 U.S.C. § 1 181(c) (“The provisions of subsection (a) shall not apply to an alien whom the Attorney Ge n eral admits to th e United States under section 1 157 of this title.”). Instead, the Act created a separat e, co mprehen sive f ramewo rk for t he processing, admission, and resettlement of r efugees. See general ly 8 U.S.C. §§ 1 157, 1521–24. Section 1 157 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 increa sing that number in the case of unforeseen emer gency refugee situations, and for allocating admissions among refugees. See 8 U.S.C. § 1 157(a)– (c). Specifically, it provides that “the number of refugees who may be adm itted ” each year “shall b e such num ber as th e President determines, before the beginning of the fiscal year an d after appropriate consultation” with Congress. Id. § 1 157(a)(2). For purposes of the Refugee Act, “appropriate consultation” requires in - person discussions between

P ACITO V. T RUM P 17 “design ated C abinet - level represen tatives of t he Presid ent with member s of the Committees on the Jud iciary of the Senate an d of t he Hous e of R epres entativ es.” Id. § 1 157(e). These p arties m ust “discu ss t he reaso ns fo r bel ieving that th e [President’ s] proposed adm ission of refugees is just ified,” and the President’ s representatives must provide Congress with various sets of desc riptions, analyses, and other informa tion. Id. The “substance of such consultation” must be published, id. § 1 157(d)(2), and a h earing mu st general ly be held “to review the proposed” number of refugee admissions, id. § 1 157(d)(3)(A). After this consultation, individual refugee admissions are “all ocated among refug ees of s pecial hum anitari an concern to the Uni ted St ates.” Id. § 1 157(a)(3). 1 Sub ject to the “nume rical limitations” de termined by the President, the Attorney General is then authorized to, in his or her “discretion and pursuant to such regulations as the Att orney 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. § 1 157(c)(1). Sectio n 1 157(c) also c reates a s peci al clas s of “f oll ow - to - join” refugees. It provides that the spouse or child of a principa l refugee shall “be e ntitled to the same admission status” as the principal refugee so long a s the spouse or child is “accom panyin g, or fol lowing to join, such refugee” and the spouse or child is otherwise “admissible” under the INA. Id. § 1 157(c)(2)(A). The admission of such a spouse or child “shall be char ged against the numer ical limitation 1 The President may also increase the number of ann ual refugee admiss ions under ce rtain e merge ncy situat ions “aft er appropria te consult ation.” 8 U.S.C. § 1 157(b).

18 P ACITO V. T RUM P established in accordance with the appropria te subsection under which the [principal] refugee’ s admission is charged.” Id. Finally, § 1 157 expre ssly exempts refugees from being deemed in admis sible u nder c ertain § 1 182 grounds. 8 U.S.C. § 1 157(c)(3). S pecifical ly, refugee s ma y not be deemed in admi ssib le becau se they are “likel y at a ny ti me to become a pu blic charge” under § 1 182(a)(4), are seeking to enter the United States “for the purpose of performing skilled or unskilled labor” under § 1 182(a)(5), or do not possess a va lid visa or other valid entry doc ument under § 1 182(a)(7)(A). 8 U.S.C. § 1 157(c)(3). The Attorney Gener al is further authorized to waive, with several narrow exceptions, “ any other provision” of § 1 182 “ for humanitarian purposes, to assure f amily unity, or when it is otherwise in the public inter est.” Id. Resettle ment of r e fugees. Once an alien h as b een admit ted to t he Unit ed Stat es as a refu gee, h e or sh e acqui res certain rights and responsibilit ies. For example, the sole cause for revoking ref ugee status is a determination that an alien was “not in fa ct a refugee.. . at the time of the alien’ s admission,” 8 U.S.C. § 1 157(c)(4), but an admitte d refugee may contest removal proceedings by demonstrat ing his or her refugee status, see 8 U.SC. § 1252(e)(2)(c), (e)4(b). After a r efugee h as bee n phys ically p r esent in the United States for at le ast on e year, the r efuge e is gen eral ly enti tled to have his or her status adjusted to la wful permanent residency. See 8 U.S.C. § 1 159(a). The Refugee Act also establishes proc edures to provide various do mestic rese ttlement service s to recen tly admitted refugees. See 8 U.S.C. §§ 1521– 24. Section 1521 establ ishes t he Office of Refuge e Res ettl ement (ORR)

P ACITO V. T RUM P 19 within the Department of Health and Human Services (HHS). 8 U.S.C. § 1521(a). ORR’ s “function” is “to fund and admi nist er” refug ee assis tance p rogram s under Subchapter IV. Id. § 1521(b). Section 1522 outlines the initial domestic resettleme nt service s to be provided and authori zes the G overnme nt 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 refu gees” b e emp loyed “as soon as po ssibl e aft er their arri val; (2) “soci al ser vice funds” be focused on “employment - relat ed s ervices, English- as -a- second - language training ..., and case - managemen t s ervices ”; and (3) lo cal vol untary agenci es work in close cooperation with state and local gove rnments. 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 a ppropriations,” follow four char ges. Id. § 15 22(a)(1)(A). F irst, the Dir ector shal l “mak e avai lable suf ficient resources for employm ent training and placement in order t o achieve eco nomic s elf - suffic ienc y among refugees as quickly as possi ble.” Id. Second, th e Director shall “provide refugees with the opportunity to acquire suf ficient English lang uage training to enable them to become e ffectively r eset tled as quickl y as pos sib le.” Id. Third, the Dir ector sh all “insure t hat cas h ass istance i s mad e available to refugees in s uch a manner as not to discour age their eco nomic s elf - su f fi ciency.” Id. And finally, the Director s hall “i nsure that wo men have t he same opportunities as men to participate in tra ining and instruction.” Id. Section 1522(a) imposes severa l additional duties on t he Government. For example, it provides that the Government

20 P ACITO V. T RUM P “shall de velop and implement .. . policies an d st rategi es fo r the placem ent and res ettl ement o f refug ees wit hin the Uni ted States.” Id. § 1522(a)(2)(B). Those policies and strategies must take into account various fac tors, including the “likelihood of refugees placed in the area becoming self - suf ficient and free from long - term dependence on public assis tance.” Id. § 1522(a)(2)(C)(iii). The G overnment is also required to conduct “periodic assessment[s]” to evaluate the needs of admitted refugees, id. § 1522 (a)(3), and it must “develop a sys tem” to m oni tor and evalu ate “th e assi stance 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 “sh all”: “assur e th at an adequate n umber of t rained staff are availab le at the location ” where arriving refugees “enter the United States,” id. § 1522(b)(4)(A); “a ttempt 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 ad mitted unaccompanied refugee children that have not yet been placed, id.; and “develop and implement alterna tive projects” to “provide[] interim support, medical services, suppo rt services, and cas e manag ement” fo r ref ugees w ho have been in the United States f or less than thirty - six months and who are not otherwise receiving c ash or m edical assis tance, id. § 1522(e)(7)(A). The G overnment is further “authorized” to “make grants to, and contracts with, public or private nonpr ofit agencies for initial r esettlemen t (including initia l reception and placement with sponsors) of refugees in the United States.” Id. § 1522(b)(1)(A). Such grants or contracts mus t be made “consistent with the objectives” outlined in § 1522(a), and

P ACITO V. T RUM P 21 any assistance provided via such contracts and agreements must “be provided in coor dination with the Director ’ s provision of other assistance under” Subchapter IV. Id. The G overnment is required to trac k domesti c resettlement services provided under § 1522, and § 1523 requires the S ecretary of HHS to submi t a detai led an nual 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 coordina tion with United N ation s partner ship 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 a dministere d by HHS, through its sub - agency ORR, and by the Department of Homeland Security (DHS), through its sub - agen cies U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP). Collectively, this multi - agency implementation framewor k is referred to as the “United States Refugee Ass istance P rogr am” (US RAP). The execut ive h as pro mulgat ed extens ive reg ulati on s t o govern the implementation of USRAP. See generally 8 C.F.R. § 207 et seq. (a dmission of refugees); 45 C.F.R. § 400 et seq. (refugee re settlement programs). In practice, the admission and resettlement of ref ugees under the Refugee Act occurs acco rding to t he following procedures. Admission of r efugees. Each year, “afte r appro priate consultation” with Congress, the President d etermines the number of refugees that “may be admitted” to the United States in the following fiscal year. 8 U.S.C. § 1 157. This

22 P ACITO V. T RUM P finding is formalized in the annual “Pre sidential Determination on Refugee Admissions.” E.g., Pr esidential Determination No. 2024 - 13, 89 Fed. Reg. 83767 (Sept. 30, 2024) (determining that “[t]he admission of up t o 125,000 refugees” during fiscal year 2025 “is justifie d by humanitarian concerns or is otherwise in the national interest”). These determinations often include flexible “allocation ranges” indicating how many re fugees may be admitted from dif ferent 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). T o submit an application for refugee statu s, each ap plicant firs t “mus t receiv e a ref erral t o the [USRAP ] for cons ider ation as a refugee. ” Refu gees, U.S. Citizenship & I mmigr. Servs. (last upd ated 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 or ganization ”). The United Nations High C ommissioner for Refugees (UNHCR) is a common source of referrals. The United States Refugee Admissions Pr ogram (USRAP) Consultation and W orldwide Pr ocessing Priorities, U.S. Citizenship & Immigr. Servs. (last up dated Sept. 17, 2025), https://perma.cc/4HBM - 8LBY. Other referral sources include “U.S. embassies, certain senior U.S. government off icials, certified non -governmental or ganizations (NGOs), and W elcome Corps private sponsors.” Refugee Admissions, U.S. Dept. of State (last visited Dec. 14, 2025), h ttps://perma.cc/MT7J - NZEL. After an app lican t recei ves a ref erral, a Reset tlement Support Cente r (RSC) assists the alie n with submitting a refugee application (Form I - 590) and completing a pre - screening process. Refugee Pr ocessing and Security Scr eening, U.S. Citizenship & Immigr. Servs. (last updated

P ACITO V. T RUM P 23 Mar. 14, 2024), https://perma.cc/V TS8 - A9YH. RSC s are international or non - governmental or ganizations with which DOS ent ers into “cooperati ve agreem ents” t o prep are applicants for adjudication and to otherwise assist with USRAP implementation. During the pre - screen ing process, RSCs conduct interv iews, initiate se curity, biometric, and biographic checks for all applicants, and help applicants schedule USCIS eligibility interviews. Id. USCIS maintains waiting lists for all a pplications submitted for filing, and applicants a re selected from these lists according to “processing priorities” adopted by the Secretary of HHS. 8 C.F.R. § 207.5. The prioriti es may be based on “such considerations as re uniting families, close associa tion with the Unit ed States, c ompelling hu manitarian concerns, and public interest factors.” Id. “Fulfilling a processing priority enables a refugee applicant the opportunity to interview with a USCIS of ficer, but does not guarante e accept ance.” The United States Refugee Admissions Pr ogram (USRAP) Consultation and W orldwide Pr oc essing Priorities, U.S. Citizenship & Immigr. Servs. (last updated Sept. 17, 2025), https://pe rma.cc/4 HBM - 8LBY. After the p re - sc reening process is comp lete, app li cants over fourteen years old that are selected for processing mus t conduct an in - person, under - oath inte rview with a USCIS officer ove rseas t o det ermine wh ether t he ap pli cant is eligible f or refugee s tatus and resettle ment in the Unite d States. 8 C.F.R. § 207.2(a). During the interview, a sp eci ally trained USCIS of ficer elicits inf ormation to co nfirm tha t the applican t meets the stat ut ory requi rement s for refugee s tatus and is othe rwise eligible for admis sion to the United States. Refugee Pr o cessing and Security Scr eening, U.S. Citizenship & I mmigr. Servs. (l ast upd ated Mar. 14, 2024),

24 P ACITO V. T RUM P 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 c onduct extensive, individualized security vetting and background checks. Biographic data is provided to t he intelligence community and to law enfor cement partners, and biometrics are col lected and subm itted to the F BI, DOD, and other agency p artners. Id. According to the Presidentia l Determination on Refugee Admissions for Fiscal Y ear 2026, “ refu gees receive the most str ingent ide ntification verification of any c lass of alien seeking admission or entry into the Unite d States.” Preside ntial Determination No. 2025-13, 90 Fed. Reg. 49005 (Sept. 30, 2025). The info rmatio n collect ed on each refug ee is syn thesized in an assessment that is provided to USCIS. Refugee Pr ocessing and Security Scr ee ning, U.S. Citiz enship & Immigr. S ervs. (last updated Mar. 14, 2024), https://perma.cc/VTS8 - A9YH. Before approving any refugee application, USCIS confirms that all security checks have been com pleted an d that al l coll ected info rmatio n has been rev iewed and ana lyzed. Id. If an appl icant has completed and cleared a ll security checks, is found to qualify for refug ee stat us under the Act, is not otherwise inadmissible, and has no unresolved national security concerns, USC IS may adj udicat e the ap plicant ’ 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://per ma.cc/MT7J - NZEL. There is no appeal if USCIS denies an applica tion for refugee status. 8 C.F.R. § 207.4.

P ACITO V. T RUM P 25 Once an applica nt has been conditionally approved by USCIS for refugee status, the refugee is assigned to an RSC to assist with the final steps of admiss ion. The RSC helps the refugee under go 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 approve d domestic Resett lement Ag ency (RA). The RA enter s int o a cooperative agreement with DOS, through whi ch the RA commits to providing var io us initial resettle ment servic es during the refugee’ s first ninety days post - admissi on to the United State s. S ee 8 U.S.C. § 1522(b)(7) (listing resettl ement agen cies ’ statut ory dut ies). R efugees are not permitted to travel to the United States un til a sponsor ship assurance has been obtained. After a refug ee has comp leted all pre - travel requirem ents, t he RSC refers the r efuge e’ s case to the International Or ganization for Migration (IOM) to book travel to the United States. I OM is a nonprofit with which DOS cont racts to coordinate travel for approved refugees and that serves as the RSC at cer tain overs eas pro cessing locations. The United Stat es Refugee Admissions Pr ogram (USRAP) Consultation and W orldwide Pr ocessing Priorities, U.S. Citizenship & Immigr. Servs. (last up dated Sept. 17, 2025), ht tps://per ma.cc/4HBM - 8LBY. I OM books the refugee’ s trav el wit h an int erest - free l oan that the refuge e is expect ed to pay back after resettl ement in the U nited 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 re fugee must still be inspected by CBP upon arrival at a port of entry, and CBP ha s ultimate

26 P ACITO V. T RUM P authority whether to admit the r efugee into the United States. See id. Resettl ement of r efugee s. After a refugee h as been admit ted, OR R and PRM fun d resettl ement s ervices “to provide for the ef fective resettlement of refugees and to assis t them t o achieve ec onom ic self - su fficiency as quickl y as possible.” 45 C.F.R. § 400.1(b). T o f und these resettl ement s ervices, the G overnment has historically entered into coopera tive agreements with domestic nonprofit RAs. See 8 U.S.C § 1522(b)(1)– (7) (authorizing such collaboration with “public or private nonprofit ag encies for initial rese ttlement (including initial reception and placement with s ponso rs) of r efugees in the Un ited Stat es”). Domestic RA s must compete in a n annual c ompetitive funding process administered by PRM. PRM then executes “Recepti on and P laceme nt cooperat ive agre ement s” wit h the successful RAs, through which PRM grants federal funds to the RAs to pr ovide initial recept ion 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; deve loping an individualized service plan for the refugee; providing initial housing and basic furnishings, groceries, and clothing for at least thirty days; assistin g th e refugee with securing per manen t housing; providing cultural - orientation and English -language training; enrolling the refugee in sc hool; helping the refugee apply for a Social Security card and other public benefits; 2 Effect ive Janua ry 1, 2026, res ponsibil ity for a dminist ering init ial resettlement services under USRAP transferred from DOS to HHS - ORR. See Preside ntial Deter minatio n No. 20 25 - 14, 90 Fed. Reg. 49007 (Oct. 31, 2025).

P ACITO V. T RUM P 27 connecting the refugee with social service s; and arranging medical appointments. ORR also funds or administers various longer - term refugee resettlement projects. For instance, ORR funds refugee cash and me dical assistance programs for up to thirty - six months after a r efugee is admitted. ORR also provides funds for “employment services, on -the -job training, English language instruction, vocational t raining, case m anagem ent, tran slat ion/ interpret er serv ices, social adjust ment s ervices, health - related servi ces, hom e management, childcare, and transportation” for “ up to five years af ter arri val. ” Finally, after a refugee has been physically present in the United States for a year, the refugee is required to apply for lawful p ermanen t res iden ce status (a “Green Card ”). See 8 C.F.R. § 209.1. Upon application, USCIS will once again determi ne wheth er the r efugee is admi ssib le under § 1182, subject to the exceptions and waive r provisions of § 1 159. Id. § 209.1(e)– (f). If the refugee is found to be other wise admissible, th e refugee’ s status is adjuste d to lawful permanent resi dence, an d the r efugee is con sid ered t o have been ad mitt ed as a l awfu l perman ent res ident as o f the d ate of the re fugee’ s initial arriva l in the United Sta tes. Id. § 209.1(e); 8 U.S.C. § 1 159(a) (2). Alt hough there is no appeal of a d enial, t he refu gee may r enew the r equest f or lawful permanent resident status during removal proceedings. 8 C.F.R. § 209.1(e). B. Factual and Pr oce dural Backgr ound of This Case President Biden set the annua l admissions ceiling for FY 25 at 125,000 refugees. Preside ntial Deter mination No. 2024- 13, 89 Fed. Reg. 83767 (Sept. 30, 2024). At the time President T rump took of fice, over 128,000 individuals were

28 P ACITO V. T RUM P conditionally approved for refugee status, and approximately 37,000 refugees had already been admitte d to the United States pursuant to th e FY25 allocation. Hours after taking of fice on January 20, 2025, President T rump issued Executive Order No. 14163, which suspended the entry of all refuge es into the United States under USRAP pending further findings. Exec. Order No. 14163 § 3(a). The exe cutiv e order fi rst states that “[o]v er th e las t 4 years, the United States has been inundated with record levels of migration,” which has caused some jurisdictions to “declar e[] stat es of emergency.” Id. § 1. It further ass erts that the Un ited States “lacks the a bility t o absorb lar ge numbers of .. . ref ugees, into its communitie s in a manner that does not compromise the availability of resources for Americans, that p rot ects t heir safet y and s ecurity, 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 ref ugees under the USRAP wou ld be detrimen tal to the inter ests of the United States,” the executive order suspends all entry of refugees under USRAP “until a findin g is made in accordan ce with section 4 of th[e] orde r.” I d. § 3(a). Section 3(b) of the order further suspends all “decisions on applications for re fugee status” until such a finding is made. Id. § 3(b). Section 3(c) establ ishes a limited exception to the ge neral sus pension of admissions, under which the Secretary of State and the Secretary of Homeland Security “may jointly determine” to admit refugees “on a cas e -by- case b asis ” if they determ ine that such admission “is in the national interest and doe s not pose a th reat to t he securit y or welfare o f the Uni ted St ates.” Id. § 3(c).

P ACITO V. T RUM P 29 Section 4 of the executive order sets out the mech anism and criter ia for the resumption of USRAP. It directs the Secretary of Homeland Secur ity to submit a report to the President every ninety days regarding whether r esumption of USRAP would be in t he interests of the United States in “light of [four] polic[y]” consider ations. Id. § 4. Those considerations are: (1) “public safety and n ational security”; (2) the ability of refugees to “fully and appropriately assimilate in to the Unit ed States”; (3) t he p reservation of “taxpayer resources for [U.S.] citizens”; a nd (4) the involvemen t of “State a nd local jurisdic tions” in th e resettl ement pr ocess. Id. § 2. The order directs the Secret ary to continue submitting such reports “until [the President] determin e[s] that resump tion of the USRAP is in the intere sts of the Un ited States. ” 3 Id. § 4. Federal ag encies immediately began implementing Executive Order No. 14163. On January 21, 2025, DOS sent an email to its refu gee reset tlemen t partners stating that al l refugee arrival s wer e su spended “unti l furth er n otice, ” all previously booked travel was cance led, no new bookings were to b e made, all refu gee cas e proc essi ng and pre - departure a ctivities must cease, refugees should not be moved to transit centers, and no new referrals should be made to U SRAP. 4 3 President T rump has since iss ued a “Presidential Determination on Refugee Admissions for Fiscal Y ear 2026,” setting the annual cap at 7,500 ref ugees to “ primari ly be allocate d among Afrikaners from So uth Africa.” Presidential Determination No. 2025 - 13, 9 0 Fed. R eg. 49005 (Sept. 30, 2025). 4 During the final week of the B iden Admini strati on, seni or PRM of ficials were informed t hat Pres ident T rump intende d to issu e an executi ve order sus pending all refugee a dmissi ons immediately u pon

30 P ACITO V. T RUM P On January 24, 2025, DOS issued written n otices to resettle ment agencies stating that all “ award (s)” were “immed iately s uspend ed. . . pending a Department - wide review o f forei gn assi sta nce prog rams,” that recipients must “stop a ll work under the award(s),” “ cancel as man y outstanding obligations as possible, ” and incur no ne w costs. Recipients were also informe d that they may “submit payment requests for legitimate expenses incur red prior to” or “associated with” the suspension. T he suspension notices purported to be issued pursuant to a dif fere nt executive order, “Re evaluating and Realigning United States Foreign Aid,” wh ich d irect ed fede ral ag encies to “im mediat ely pau se new obligations and disbursements” of “foreign development assistance ” f unds. Exec. Order No. 14169 § 3(a), 90 Fed. Reg. 8619 (Jan. 20, 2025). On February 10, 2025, Plaintiffs f iled a put ativ e class action in the W estern District of W ashington against the Presid ent and t he Se cretari es of St ate, Ho meland Securi ty, and Health and Human Services. Plaintif fs comprise nin e individuals and three refugee - resettle ment or ganizations. The individu al Plaintif fs include three distinct groups: (1) refug ees abroad, whose travel or processing was canceled; (2) U.S. - b ased individuals, seeking admission for their fa mily members under the follow - to - join progr am o r for their sponsees; and (3) recentl y arrived refug ee s, wh o allege loss of resettlement support. The organizational taking of fice. In a nticipa tion of the forthc oming o r d e r, DOS preemptively canceled all travel s cheduled for after 12:00 p.m. on January 20, 2025. This w as appar ently d one to prevent r efugees from being st randed at a U.S. port of entry or a layo ver loc ation i n a thi rd country.

P ACITO V. T RUM P 31 Plaintif fs include two of the ten nation al resettle ment agencies and a lo cal affili ate of a th ird. 5 On February 1 1, 2025, Plaintif fs m oved for a preliminar y injunction to block the enforcement of Executive Order No. 14163 and the suspension of funding for rese ttlement services. Specifica lly, Plaintif fs ar gu ed tha t Executiv e Order No. 14163 was ultra vir es under the INA, that the executive order violated follow - to - join refuge es’ due process rights, that t he agenci es’ ces sati on of refugee processing and admissions viola ted the Administrative Procedur e Act (AP A), and that the suspension of funding for reset tlemen t services violated the AP A. During a hearing on February 25, 2025, the district court grante d Plaintif fs’ request and or ally issued a prelimina ry injunction prohibiting the enforcement or implementation of §§ 3(a), 3(b), 3(c), and 4 of Executive Ord er 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 agreem ents. Pacito v. T rump, 768 F. Supp. 3d 1 199, 1239 (W.D. W ash. 2025). On February 26, the day a fter the district court’ s oral ruling, the Government began e mailing notices to terminate 5 Plaintif fs Church W orld Se rvices, Inc. (CWS) a nd HIAS, Inc. are resettlement agencies that en tered into cooperative agreements wit h DOS to a ssis t both wit h overs eas USR AP proces sing and with do mesti c resettlemen t services. Pl aintiff Luthera n Community Se rvices Northwest (LCSNW), an af filiate of a national resettlement agency, entered i nto coopera tive agr eements wi th DOS to provide domestic resettlement services in the Pacific Northwest.

32 P ACITO V. T RUM P its USR AP - related co operat ive agre ements. By February 27, it had terminated every coopera tive agreement to provide resettl ement s ervices for refu gees i n the Uni ted St ates and all but one of the cooperative agreements to provide USRAP processing support abroad. The termin ation n otices were identical, one- page lett ers that stated: The U.S. Depart ment of S tate hereb y not ifies the rec ipient that this awa rd is immediately terminated as of February 27, 2025. This award no longer ef fectuates agency priorities and is t erminat ed in accor dance w ith th e U.S. Departmen t of St ate Stan dard T erms and Conditions, 2 CFR 200.340, and/or A ward Provisions as applicable. Like the suspension notices, the termination notices permitted recipients to submit reimbu rsement re quests “for legitimate c osts incurre d prior to this” ter mination. In light of the termination noti ces, the district court permitted Plaintif fs to amend their c omplaint and file a new motion for a preliminary injunction. On March 24, 2025, the district court issued a second pre liminary injun ction and enjoined the Government, except for President T rump individually, from enforcing or implementing any portion of the termination of the coopera tive agreements. Pacito v. Tr u m p, 722 F. Supp. 3d 1204, 1227 – 28 (W.D. W ash. 2025). The second injunction also required the Gove rnmen t to reinst ate all coo perat ive ag reement s termi nated after th e 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. Cit ing T rump

P ACITO V. T RUM P 33 v. Hawaii, 585 U.S. 667, 684 (2018), a motions panel of this court granted in part a nd denied in part the Gover nment’ s stay requ est. Pacito v. T rump, 2025 WL 1325305, at * 1 (9th Cir. Ma r. 25, 2025). Spec ifically, the motions panel declined to stay the d istrict court’ s injunction to the extent it a pplied to “individuals who were conditionally approved for refugee status .. . before Ja nuary 20, 2025.” Id. Upon further motions, t he panel issued two additional orders clarifying the scope of this “limite d carveout from the sta y.” 6 Pacito v. Tr u m p, 2025 WL 1325306 (9th Cir. Apr. 21, 2025). On July 14, 2025, the district court issued an order e stablishi ng a detail ed framework for enforcing the carveout and appointing a magistrate ju dge to overse e its implementa tion. On July 18, 2025, we issued an administrative stay of th at enforcement order. On July 30, 2025, the di strict court granted Plaintiffs’ moti on for clas s certifi cati on and cert ified th ree sub classes under F ederal Rule of Civil Procedure 23(b)(2). Pacito v. Tr u m p, 796 F. Supp. 3d 692, 702 – 03 (W.D. W ash. 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 fam ily m ember t o be pro cessed. ” Id. Second, “all refugees and Afghan an d Iraqi Special Immigration V is a holders r esettled to the United States a nd within the ir first ninety days post - resettlement as of January 20, 2025,. . . or who currently are, or will be, resettled in the United State s and within their first nin ety days post - resettle ment.” Id. at 703. And third, “a ll persons in t he United States who are curre ntly petitioning or will petition for family member s to 6 According to t he Gover nment, 77 co nditional ly appr oved refu gees, includin g two of th e individual Plaintiffs, were a dmitted to the United Stat es under the mot ions pa nel’ s carveout.

34 P ACITO V. T RUM P be admitted to the United States under the follow - to -join (“FTJ”) r efuge e progr am.” Id. Finally, on September 12, 2025, following oral ar gument, we issued a partial st ay of the district court’ s injunctions pending final resolution of the appeal. Although we concluded that the Government was likely t o prevail against most of Pla intiffs’ claims, we declined to stay the injunctions to the extent they required the Government to “reinst ate su ch coo perati ve agreem ents n eces sary t o provi de the recept ion and p lacem ent s ervices des cribed in § 1522 to refugees who have be en admitted to the United State s.” Pacito v. T rump, 152 F.4th 1082, 1088 (9th Cir. 20 25). II. JURIS DICTION The district court had jurisdi ction pursuant to 28 U.S.C. § 1331. W e have jurisdiction under 28 U.S.C. § 1292(a)(1). III. ST ANDARD AND SCOPE OF REVIEW The dec ision to grant a preliminary injunc tion is within the discretion of the district court. W e thus review an order granting a preliminary injunction “for abuse of discretion, but review any underlying issues of law de novo.” Karnoski v. T rump, 926 F.3d 1 180, 1 198 (9th Cir. 2019) (per curiam). A district court ab uses its discre tion when its ruling is ba sed “on an erroneous view of the law or on a clearly erroneous assessm ent of t he evid ence. ” Aar gon Agency, Inc. v. O’Laughlin, 70 F.4th 1224, 1230 (9th Cir. 2023) (quoting C T IA - The W ir eless Ass’n v. Cit y of Berk eley, 928 F.3d 832, 838 (9th Cir. 2019)). A preliminary injunction is “an extraordinary remedy that may only be awarded upon a cle ar showing that the plaintif f is entitle d to such re lief.” W inter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008). A plaintif f seeking

P ACITO V. T RUM P 35 preliminary injunctive relief thus bears the burden of demonstra ting that four ele ments are me t: [1] that he is like ly to suc ceed on the me rits, [2] that h e is li kely to su f fer irrep arable h arm in the ab sence of p relimi nary r elief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest. Id. at 20. W hile a plaintif f must e stablish all fou r elements, our circui t uses a “sli ding s cale app roach ” under which “a stronger showing of one element may offset a weaker showing of another.” All. for the W ild Roc kies v. Cottr ell, 632 F.3d 1 127, 1 131 (9th Cir. 2011). “Likelihood of success on the merits is a threshold inquiry and is the mos t important factor.” Env’ t Pr ot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir. 2020). But unde r our sliding scale approach, “if a plaintiff can only show t hat there are ‘serious questions going to the merits’ — a lesser showing than likelihood of success o n the merits — then a preliminary injunction may still issue if the ‘balanc e of hardsh ips tips sharply in the plaintif f ’ s favor,’ and the other two W inte r facto rs are satis fied.” Shell Offshor e, Inc. v. Gr eenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 20 13) (quoting Cottr ell, 6 32 F.3d at 1 135). W e l ikewis e review th e scope of a preliminary injunction for abuse of discre tion. Nat’l W ildlife 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 P ACITO V. T RUM P IV. LIKELIHOO D OF SUCC ESS ON THE MERITS The district court granted Plaintif fs’ 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. §§ 1 182(f) and 1 185(a). Second, the State Department’ s suspension of USRAP violated the Administrative Procedure Act. W e address the first issue in Part I V.A; the second, in Part IV.B. A. Executiv e Or der No. 141 63 The district court held that Executive Order No. 14163 was ultra vir es because it “over rides USRAP in its entirety” and “suspends USRAP indefinitely,” t hereby “effect[ing ] a wholesa le reversal of legislativ ely establishe d policy ” and “exceeding the President’ s statutory authority.” T he district court explained that § 1 182(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 s uspension to any resolvable, triggering even t o r condition.” The district co urt enjoined “[e ]nforcing or impleme nting” §§ 3(a), 3 (b), 3 (c), and 4 o f the ex ecutive o rder “in the ir entiret y.” Because §§ 3(a), 3 (c), and 4 address admission of approved refugees to the United States, while § 3(b) addresses applications for refug ee st atus, we wi ll addres s these i ssues s eparatel y. 1. Sections 3(a), 3(c), and 4 Section 1 182(f) provides: Whenev er the Pr esiden t fi nds th at the ent ry of any aliens or of any class of aliens into the United State s would be detrime ntal to the

P ACITO V. T RUM P 37 interests of the United States, he may by proclamation, and for such period as he shall deem ne cessary, suspend the entr y of al l 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, § 1 182(f) grants the President broad discretion to suspend the entr y of aliens into the United States.” T rump v. Hawaii, 585 U.S. 667, 683 – 84 (2018). Indeed, the Court continued, § 1 182(f) e xudes 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 interes t); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such peri od as he s hall deem n ecessar y”); an d on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have pre viously observed that § 1 182(f) vests the Pres ident with “ample power” to impose entry restric tions in addition to those e lsewhere enumerat ed in th e 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 “ indefin itely.” W e think the district court’ s concerns are not

38 P ACITO V. T RUM P well tak en. As to t he first point, § 1 182(f) anticipate s that it may be in “the interests of the United States” to “suspend the entry of all aliens.” 8 U.S.C. § 1 182(f) (emphasis added). Nothing in § 1 182 suggests that the President must maintain some non - zero admissions under USRAP. The Pres ident h as exercised authority consistent with the statute. No p rovision of the Refugee Act prev ents t he President from suspending all admissions, either. The district court concluded that the suspension of all refugees unlawfully “effect[ed] a wholes ale r eversal of legi slati vely e stabli shed policy” because Congress, in passing the Refugee Act, intended “to provide a permanent and systema tic procedure for [r efugee] admission.” Pac ito, 768 F. Supp. 3d at 1221 – 22 (quoting § 101(b), 94 Stat. at 102). But § 1 157(a), titled “ Maximum number of admissions,” provides tha t “the number of refugees who may be a dmitted ” in any year “shal l be such number as the Preside nt determines.” 8 U.S.C. § 1 157(a)(2) (e mphasis ad ded). Put simply, § 1 157 sets a ceiling, not a floor — nothing in the statute requires the admission of a non - zero num ber of refug ees. N or does the statute res trict the President’ s power to otherwise exclude refugees under § 1 182(f). “ Had Congress inst ead intended [§ 1 157] 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 f act, later in § 1 157, Congress did exp ressly exempt certain refugees from specific § 1 182 in eligibility provisions. Name ly, § 1 157(c)(3) provide s that “[t]he provis ions of pa ragraphs (4), (5), and (7)(A) of sect ion 1 182(a) of this title shall not b e applicable to any alien seekin g admissio n to the United St ates under this s ubsec tion.” That Congress specifically exempted refugees from these sub secti ons of § 1 182 but not § 1 182(f) c uts strongl y a gainst the district c ourt’ s reasoni ng.

P ACITO V. T RUM P 39 In any event, the fact th at the P resident decided t o 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 refuge e s, § 3(c) provides that “[n]otwithstanding the suspension of the USRAP.. ., the Secreta ry of St ate and t he Secreta ry of Hom eland Securit y may jointly de termine to admit aliens to the Un ited S tat es as refuge e s on a case -by- cas e basis. ” In other words, Executive Order No. 14163 does not suspend USRAP in it s entirety, and the President’ s decision to suspend all admissions (except on a case -by- case basis) is e xpressly permitted by the statute. As to the second point, even accepting the distr ict court’ s premise that USRAP’ s suspension is i ndefinite, § 1 182(f) authorizes the president to “suspend the entry of all aliens” for “such p eriod as he shall deem nec essary.” That is a complete answer to the district cour t’ s objection: Not only can we not rea d into the statute a “te mporal limitation” as the district co urt did, the statu te is also ex plicit that a suspension is not subject to any particular “temporal limita tion.” In T rump v. Hawaii, the Sup reme Court consider ed this s am e ar gument. The Court “agree[d] with plaintiffs that the word ‘suspen d’ often conno tes a ‘defe r[ral ] till later.. .. But tha t does not mean that the Pre sident is required to prescribe in advance a fixed end da te for the entry restrictions.” 585 U.S. at 687 (c itation omitted). 8 8 Plaintif fs have pointed t o langua ge in Doe # 1 v. T rump, 957 F.3d 105 0 (9th Ci r. 202 0) (Doe I), sugge sting tha t a presidential proclam ation iss ued under § 1 182 was “problematic” because there was a “lack of an explicit tim e limitation. ” Id. at 1065. That de cision denied the government ’ s motion to s tay a prel iminary inj unction. Doe I was super s ede d by a decis ion on the merits i n which we reve rsed the grant of the preli minary i njuncti on, rul ing in favo r of the governme nt. Doe #1 v.

40 P ACITO V. T RUM P Further, eve n if we were inclined to read such a limitation into the statute, § 4 of Executive Order No. 14163 contemp lates only a tempora ry pause in refugee admissions. The Secretary of Homeland Security, in consultation with the Secretary of State, must submit a report to the President every ni nety days rec ommending whether to resume USRAP. The restrictions o n admission will remain in ef fe ct until “resumption of entry ... under the USRAP would be in the interests of the United S tates.” Exec. Order No. 14163 § 4. The order lists four policy consider ations that would inform resumption: (1) “public saf ety and nati onal securit y,” (2) the ability of refugees to “fully and appropr iately assimila te” into society, (3) the preservation of “taxpaye r res ources for [U.S.] citizens,” and (4) the capacity for involvin g “State and l ocal jur isdictions” in re settlement. Id. § 2. Th ese are all legitimate considerations in the formulation of our national immigration policy an d are similar to the temporal limits imposed by the order at issue in Hawaii. See 585 U.S. a t 687 (“ [T] he Pro clamati on m akes clear tha t its ‘conditional restric tions’ will remain in force only so long as necessary to ‘addr ess’ the identified ‘inadequacies and risks.’”). Wheth er the listed considerations are on es we would adopt is irrelevant. As we noted at the beginning: “The wisdom of the policy choices Tr u m p, 984 F.3d 848 (9th C ir. 2020) (Do e II); see East Bay Sanctu ary Covenant v. Biden, 993 F.3d 6 40, 662 (9th C ir. 2021) (“the mot ions panel may be pe rsuasive but [is ] not bindi ng”). W e later vacated our merits decision a nd rem anded the matter to the distric t court with instru ctions to dismiss the su it as moot. Doe #1 v. T ru mp, 2 F. 4 th 128 4 (9 th Ci r. 20 21) (Doe III). When Doe III vacated our me rits opini on in Doe II, it did n ot reviv e our decis ion on t he st ay of the preli minary i njunctio n Do e I. We are not b ound by ou r decisi on in Doe I.

P ACITO V. T RUM P 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 a nd House Judiciary Committees. 8 U.S.C. § 1 157(e). W e view this as an important part of Congress’ s over sight responsibilities. As we descri bed abov e i n greater det ail, t he Presi dent provides Congress with information about “ the refugee situation” as the basis for “discuss[ing] the reasons for believing the [President’ s] proposed admis sion of re fugees is justified,” id. § 1 157(e)(1), and “regarding changes in the worldwide refugee situation, the progre ss of refugee admissions, and the possible need for adjustments in the allocatio n of admis sions among refugees,” id. § 1 157(d). But nothing in the statut e purports to bind the President to the Committee s ’ views during the a nnual consultation, nor could such consultations countermand the authority granted to the Presid ent in § 1 182. See Chadha v. INS, 462 U.S. 919, 954– 55 (1983). Rather, if th ere is d isagreem en t between members of Congress and the President, Congress remains free to amend the R efugee A ct to provide gr eater direction to the President. Finally, we wil l address he re the distr ict court’ s ruling that t he executi ve orde r violat es the Du e Process C lause wi th respect to spouses and children of refugee s. Under § 1 157(c)(2)(A) “ [a] spouse or child . . . of any refugee who qualifies for admission ... shall ... b e entitled to the same admission status as such refugee” if they are accompanying the refugee or “following to join.” According to the district court, § 1 157(c)(2)(A) gi ves such spouses or children “ a specific statutory entitleme nt” w hich “gives rise to procedural protections before that entitlement can be

42 P ACITO V. T RUM P suspended.” Pac ito, 768 F. Supp. 3d at 1234 –35. W e think this misrea ds the statute and t he effect of Execu tive Ord er No. 14163. W e do not read the order to af fect the “admissi on status” of spouses or children refe rred to in thi s 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 “admi ssion ” or “ entr y.” Sectio n 1157(c)(2)(A) does not guarantee entry to spouses and children of refugees who qualify for admission. They are ent itled onl y to “the sam e admis sion status.” 8 U.S.C. § 1 157(c)(2)(A). E ven if a refugee h as bee n grant ed entry to the Un ited States, his or her s pouse and children may be ad missible but not en titled to entr y. The y are still subje ct to other restrictions on entry, including determinations under § 1 182(f). This is made cl ear 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 m ight be barred if the annual ad missi on cap h as alre ady been m et: T he fi nal sentence of § 1 157(c)(2)(A) provides that “[u]pon the spouse’ s or child’ s admission to the United States, such admission sha ll be char ged aga inst the numer ical limitation establ ished i n accord ance wit h the app ropriat e subsection under which the refugee’ s admissi on is char ged.” Nothing in the executive ord er af fects the admissibility status of refugees who have already qualif ied — it af fects admission itse lf. See Hawaii, 585 U.S. a t 694 –97 (distinguishing between “the predicate question of a visa applicant’ s eligibilit y for admission and the subsequent question whether the holder of a visa may in fact enter the country”). W e thus ca nnot agree with the distr ict court tha t executive order violates the Due Process Clause o f the Fifth Amendment.

P ACITO V. T RUM P 43 2. Section 3(b) Section 3(b) of Executive Order No. 14163 requires a slightly differ ent analysis from §§ 3(a), (c), and 4. Those sections address the admission of refugees whose applications for refugee status have bee n approved. As we have explained above, the Refuge e Act gives the President broad authority over the entry of refugees into the United States. By contrast, § 3(b) of the executive ord er concerns the “decisions on applications for refugee status.” The Refugee Act does not contain separate instructions on t he application or decision process. Rather, the need for some kind of application and decision proce ss is implicit in the decisi on to adm it refug ees. That proces s 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 Pres ident’ s de cision to halt decision s on applications would follow logically from his deter mination to suspend all admissions. W e cannot se e anything in the Refugee Act that directs the President to continue to process ap pli cation s while admissions have been suspended. * * * In sum, Plaintif fs ha ve failed to ma k e a strong showing that they are likely to succeed on the merits of the ir challenges to Executive Order No. 14163 under the Refugee Act. B. T ermination of Funding for the Cooperative Agr eements Plaintif fs also br ing an AP A challenge to the d ecisi on s by the Depart ment of S tate, Departm ent of Ho melan d S ecurity, and Department of Health and Human Services to defund various services of fered under USRAP in light of Executive Order No. 14163 and Executive Order No. 14169. Before

44 P ACITO V. T RUM P we can consi der Plai ntiffs’ AP A claim s, howev er, we mu st address two arguments by the Government that, if correct, would preclude our review. First, t he United States ar gues that the AP A does not provide an avenue for our review because the Court of Fed er al Claims (“ CFC ”) has ex clusi ve jurisdiction over the or ganizational Plaintif fs ’ claims. Alterna tively, the G overnment asserts that, even if the CFC does not have jurisdiction under the T ucke r A ct, the district court could not conduct review under the AP A because the matter is c ommitted to agency discretio n by law or, alterna tively, becaus e the re has be en no final agen cy acti on. W e address thes e objections below in Part IV.B.1. Concluding that the G overnment is not likely to s ucceed on either of these objections, we consider the merits of Plaintiffs’ challenge to the defunding decision s in Par t IV.B.2. 1. Whether W e C an H ear This C ase U nder the AP A a. Court of Federal Claims and Tucker Act jurisdiction The Government challenges the district court’ s power to consid er the organizat io nal Pl aintiffs’ AP A claims because, in the Government’ s view, the coop erative agre ement s at issue ar e cont racts fo r whi ch the Uni ted St ates h as vest ed exclusive jurisdiction in the Court of Feder al Claims under the Tucker Act. 9 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims shall hav e jurisdiction to render 9 The Governme nt concede s that t he T ucker Act does not bar t he individual Plaintiffs’ AP A claims. Inste ad, the G overnme nt claims for the first time in a footnote in its reply brief that th e individual Plaintiffs lack stand ing to bring an AP A claim. B ecause we have concl uded that the T ucker Act do es not bar the organizational Pl aintiffs’ c laim, we need not consi der this ar gument at t his junc ture.

P ACITO V. T RUM P 45 judgment upon any claim against the United States founded. .. upon any express or implied contra ct with the United States.. ..”). The G overnm ent addi tional ly characte rizes the or ganization al Plaintiff s’ claims as see king 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. W e disagree. The AP A “provide[s] a general authorization for review of agency action in the district c ourts.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988). The AP A, however, is a d efault provision: It provides a forum for review whe re “ther e is no ot her adequat e remedy i n a court.” 5 U.S.C. § 704. Although the AP A wa ives the sovereign immunity of the United State s, it applies only where the party seek s “rel ief othe r than m oney dam ages, ” and only so long as no “other statute that grants conse nt 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 plaintiff s from exploiting t he AP A ’ s waiver to evade limitations on suit contained in other statutes.” Match -E- Be -Nash-She- W ish Band of Pottaw atomi Indians v. Patchak, 5 6 7 U.S. 209, 215 (2012). W e have summarized the restr ictions on AP A review as follows: “ the AP A waives sovereign immunity for [a plaintif f ’ s] claims only if three conditions are met: (1) its cla ims are not for money damages, (2) an adequ ate remed y fo r its clai ms is n ot availabl e elsewh ere and (3) it s claims do n ot seek relief expressly or impliedly forbidden by another statute.” T ucson Airport Auth. v. Gen. Dynam ics Corp., 136 F.3d 641, 645 (9th Cir. 1998). Because a claim falling under the T ucke r Act may be brought in the CFC, a claim falling under the T ucker Act cannot be brought in a distric t court under the AP A.

46 P ACITO V. T RUM P The Supreme Court has explained that the T ucker Act is merely ju risdiction -granting. United States v. T estan, 424 U.S. 392, 400 (1976). For the CFC to have jurisdiction over a claim, the cl aim mu st be bas ed on ei ther an “ express or implied contr act with the United State s ” or a statute th at “can fairly be interpreted as mandating compensation by the Federal G overnm ent fo r the dam ages sus tain ed.” Id. at 397 – 400 (citation omitted). “[W]hen a bre ach of contr act cl aim is brought. . ., the plaintif f c omes armed with the presumption that money damages are available.” Holmes v. United States, 657 F.3d 1303, 1314 (Fed. Cir. 201 1). But when a party see ks other forms of relief, “ we int erpret the T ucker Act to ‘impliedly forbid’ an AP A action seeking injunctive and declaratory relief only if that a ction is a ‘disguised’ breach -of- contract claim. ” United Aer onautical Corp. v. U.S. Air For ce, 80 F.4th 1017, 1026 (9th Cir. 2023) (citation omitted). T o determine whether an action falls under the T ucker Act becaus e it i s an act ion i n contract — “disguised” or otherwise— we have ado pted a t wo - part test from the D.C. Circuit’ s decision in M egapulse, Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982). See Un ited Aer onautical, 80 F.4t h at 1026. First, we look to “the so urce of the rights upon which the plaintif f base s its claims.” I d. (citation o mitted). Second, and relatedly, we look to “the type of re lief sought.” Id. (citation omitted). If the “rights and r emedies are statutorily or constitutionally based, then district courts have jurisdiction; if rights and re medies are contractually bas ed then only the Court of F ederal Claims does, even if the plaintif f for mally seeks injunctive relief. ” Id. (emphasis in original); see al so T ucson Airport Auth., 136 F.3d at 646. Sour ce of the rights. W e begin with the first part of the Megapulse test. The source of the rights claimed by the

P ACITO V. T RUM P 47 or ganizatio nal Plaintif fs in this case is their “cooperative agreem ents” wit h th e St ate Dep artment, whi ch the G overnmen t has ch aracteri zed as contracts subj ect to t he T ucker Act. W e think t he Government’ s c haracte rization is, at best, incomplete. The organizational Plaintif fs provide resettl ement s ervices to ref ugees ad mitt ed to t he Uni ted States under US RAP. T he resett lement program is creat ed by 8 U.S.C. § 1522, which authorizes the Secretary of State “to make g rants to, and contracts with, public or p rivate nonprofit a gencies f or initial res ettlement ... of re fugees in the Uni ted St ates.” Id. § 1522(b)(1); see also id. § 1522(b)(5), (b)(7), (c)(1)(A), (d)(2)(A), (e) (describing various services to be provi ded to refugees through grants and contracts). Although it has the discretion to provide these ser vices by contr act, the St ate Departm ent elect ed to proceed by cooperative agreement, which is a form of a grant. The terms “grant” and “coop erati ve agreem ent” h ave been defined by Congress in the Federal Grant and Cooperative Agreem ent Act of 1977 (FGCAA), 31 U.S.C. §§ 6301– 08. T he FGCAA was a dopted to “promote a better understanding of United States Governme nt expenditures and help e liminate unne cessary administr ative re quirements on recipients of Government awar ds .. ..” Id. § 6301(1). The FGC AA carefully d efines three t erms: “p rocurem ent contract s,” “grant agreemen ts,” and “c ooperat ive agreem ents.” Id. §§ 6303– 05. P rocurement contr acts are the “legal in strument reflecting a relationship between the United States Government and [a recipient] when[] the principal purpose of the instrument is t o acquire ... property or servi ces for t he dire ct benefi t or use o f the Unit ed S tates

48 P ACITO V. T RUM P Government.” Id. § 6303(1). 10 By contrast, grants and cooperati ve agre ement s are the app ropriate l egal instru ments when the “purpose of the relationship is to t ransfer 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 b etween a pro curement cont ract and a grant or cooperati ve agreem ent is whet her the Uni ted States Governm ent recei ves a d irect benef it from the arran gement: If it does, then the arra ngement is a procurement cont ract; if not, it is a cooperative agreement or a grant. See Patridge v. Reich, 141 F.3d 920, 924 (9th Ci r. 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 agreem ents ... can not be v iewed in t he same m anner as a bilateral contract governing a discrete transaction,” 10 Congress has give n agenci es s ome further flexibi lity, permi tti ng them in “specific instance[s],” to lab el an agreement a “procurement contract” even if it does not satis fy the defi nition p rovided 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 ex ecutive agency and the recip ient. Comp ar e 31 U.S.C. § 6304(2) (substa ntial involveme nt not expect ed with a gra nt) with 31 U.S.C. § 6305(2) (substant ial involveme nt expect ed wit h a cooperat ive agree ment). 12 In addition, “a greements that are not procurement contracts ... are not subject to the general s tatute s, regulat ions, a nd requi rements governing procurement contracts, e.g., the Compe tition i n Contract ing Act, 41 U.S.C. §§ 251 et s eq.; the C ontract Disputes A ct, 41 U.S.C. §§ [7101] e t seq.; a nd the Federa l Acquis ition R egulations, 48 C.F.R. Chap. 1.” T r auma Serv. Grp. v. United S tates, 33 Fed. Cl. 426, 429 (1995).

P ACITO V. T RUM P 49 ambiguities will not “invaria bly be resolved against the Federal Government”). A number of courts have looked to the definitions in the FGCAA to he lp determine whether speci fic ag reem ents were contracts for purpose s of the T ucker Act. See, e.g., A m. C t r. for Int ’ l Lab. Solidarity v. Chavez - DeRem er, 789 F. Supp. 3d 66, 86 n.5 (D.D.C. 2025); United States v. Pre sident & Fellows of Harvar d Coll., 323 F. Supp. 2d 151, 164 (D. Mass. 2004); St. Bernar d Par. Gov’ t v. United States, 134 Fed. Cl. 730, 735 (2017), aff ’d on differ ent gr ounds, 916 F.3d 987 (Fed. Cir. 2019); Anchorage v. Unit ed States, 1 19 Fed. Cl. 709, 713 (2015); Thermalon Indus., Ltd. v. United States, 34 Fed. Cl. 41 1, 417 (1995). In such cases, the agency’ s choice of instrument has been persuasive but not conclusive for T ucker A ct purposes. Compar e Anchorage, 1 19 Fed. Cl. at 713 (holding that the “rec iprocal nature of [an] Ag reement... [m ade i t ] an express contract and not a cooperati ve agreem ent”), with Am. Ctr. for Int ’ l Lab. Solidarity, 789 F. Supp. 3d at 91 (cooperative agreement was not a contract for purposes of th e T ucker A ct), and St. Bernar d Parish, 134 Fed. Cl. at 735 (same). The CFC h as also stated that cooperative agree ments, unli ke procureme nt contracts, are not presumed to provide money damages. St. Bernar d Parish, 134 Fed. Cl. at 734; see al so Am. Ctr. for Int ’ l Lab. Solidarity, 789 F. Supp. 3d at 87 (“how the government agen cy class ifies or denomi nates an a greement has prob ative value in as sessi ng” wh ether th e agreem ent “qualif [ies] as a cont ract fo r purpos es of th e T ucker Act ”). 13 13 W e emphasize here that the FGCAA merely provide s a fram ework for class ifying vari ous agreeme nts a s procurement contract s, grants, or coope rative agreemen ts. That classification is not determinativ e of whether a n instru ment is a contr act for purpose s of the T ucker Act. See

50 P ACITO V. T RUM P The Government failed to cite the FGCAA or to acknowledge the existence of this authority. In fact, t he Government ’ s argument appears to be inconsistent with its own prior expressed view. In it s brief to the Federa l Circuit in St. Bernar d Parish, the Government took t he exact opposite position that it takes now and cited the FGCAA to ar gue that a cooper ative agreem ent was not a Tucker Act contract becaus e it “ did not provide a direct benefit to the Government, and. . . was therefor e not an enforce able co ntract with in the jurisd iction of the [CFC].” Brief for Defend ant - Appell ee at 3, St. Bernar d Par. Gov., 916 F.3d 987 (9th Cir. 2019) (No. 18 - 1204), 2018 WL 1438313 [herein after St. Bernar d Bri ef]. In the lower court, the CFC agreed with the Government that becaus e the c ooperati ve agreem ent at issue p rovided “no direct benefit” to the Government— as compar ed to a “mer e inciden tal benefi t” — the agr eement lack ed “th e consid erati on neces sar y to fo rm an enfor ceable co ntr act.” St. Bernar d Par., 134 Fed. Cl. at 735– 36 (cita tion omitted). On appeal to the Federal Circuit, the Government ar gued that “[t]his holding appropriately respect[ed] t he distinctions between contracts, grants, and cooperati ve agre ement s.” St. Bernar d Brief at 20. The Government cannot have its cake and eat i t too by insisting that coop erative agr eemen ts a re not T ucker Act contract s when it does not want to litigate in the CFC but that they a re T r auma Serv. Grp., 10 4 F.3d at 1326. Rather, federal court s have long held tha t the FGCAA supplies a pr es umption that grant s and c ooperativ e agreements are not c ontrac ts under which a claim for money damages may be broug ht in the CFC. See, e.g., Rick’ s Mushr oom Serv. v. United States, 521 F.3d 1338, 1343 (Fe d. Cir. 2008). W e are thus pu zzled by the diss ent’ s argument that our hol ding would require claims based on gra nts to be brought in the CFC. Se e Dissenting Op. at 84.

P ACITO V. T RUM P 51 T ucker A ct contr acts wh en — as in this case — it w ould rather be there. Here, t he Stat e Depa rtment made a d eli berate ch oice t o proceed by cooperative agreement and not by c ontract. This is evi dent from the “F ederal A ssist ance A ward ” t he Stat e Depar tment entered into with the or ganizationa l Plaintiff s, which expressly identifi es the i nstrum ent as a “ coop erative agreem ent,” and makes the pa rties subject to the St ate Department’ s “Standard T erms and Conditions for Federal A wards” (Standard T erm s and Conditions). The Standard T erms and Conditions refer s repeatedly and exclusively to “grants o r coop erati ve agr eements.” F urth ermore, consistent with the FGCAA ’ s definition of “coope rative agreem ent,” th e Federal Assist ance A ward s pec ifies t hat “ [t] he Department of State will be substantially involved in carrying o ut [c ertain] asp ects of this cooperati ve agreem ent. ” See 31 U.S.C. § 6305(2) (“An executive agency shall use a cooperati ve ag reem ent ... when ... substantial involvement is expect ed bet ween t he execu tive ag ency an d the ... recipien t. ” (em phas is added)). The source s o f the rights claimed b y the org anizational Plaintif fs a re § 1522, which creates the res ettlem ent p rogram and permi ts th e State Departmen t to pro ceed b y cooper ative ag reemen t rather t han by cont ract; th e cooperat iv e agreemen ts them selve s; and the Standard T erms and Conditions, which appl ies to all such agreements. Nothing in the statute or the documents indicat es that the parti es were enteri ng int o a contr act, mu ch less a “procurement contract,” which would have triggered a host of additio nal rights a n d duties on the parties. See supra at 48 & nn. 1 1–12. The type of r elief soug ht. The second part of the Megapulse test considers “the type of relief sought.” 672 F.2d at 968. In general, if a party s eeks “mon ey dam ages”

52 P ACITO V. T RUM P stemming fr om an agreement with th e United States, its claim i s a “con tract - based action [that] falls within t he scope of the T ucker Act.” United Aer onautical, 80 F.4th at 1026. By cont rast, wh ere “cl aims ari se under a fed eral gr ant program and turn on the interpretation of statutes and regulat ions rat her th an on the i nterp retatio n of an ag reement negotiate d by the parties,” the plaintif f ’ s claims are generally “not contract claims for T ucker 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 thi s case, the o r gani zatio nal P laintiff s do not seek damages f rom t he Stat e Depart ment. No r has the Government pointed us to any statutory provisi on or provision within the coopera tive agreements that contemplates the payment of damages for breach of the agreem ent. 14 See Te s t a n, 424 U.S. at 400. The Standard T erms and Conditions also provide s a sing le remedy: termination “in whole or in part” a t the option of the recipient or the State Departme nt. The State D epartmen t’ s li st of justificatio ns for termina tion includes fa ilure to comply with “the terms and conditions of award” and “if the award no longer effectu ates t he pro gram goal s or agen cy p riorit ies.” Nothing in the Standard T erms and Conditions suggests that 14 Federal courts and the Government have previo usly considered this fact to be de terminative of the Tucker Act analysis. See Summit P owe r Grp., L LC v. Unite d States, 139 Fe d. Cl. 369, 37 4 (2018) (collect ing cases and noti ng that b oth the CFC “and the Federal C ircui t have hel d that part icular coope rative agreements [that] did not contempl ate payment of money a s a reme dy for b reach of the a greement” fell o utside the CF C ’ s jurisdiction); St. Bernar d Brief at 10 (“The agreement between the Pa rish a nd NRCS is clearly a cooperative agreement and, as such, i s not presume d to conte mplate money damages. Moreover, the agreement in fact does not contem plate m oney dama ges, and ther efore d oes not fa ll within the jurisdict ion of the Court of Fede ral Cla ims.”).

P ACITO V. T RUM P 53 either party has any right to seek damages in compensation for early termination of the resettle ment program. See Bennett, 470 U.S. at 669 (“Although we agree wit h the Stat e that T itle I grant agreemen ts had a co ntract ual a spect, t he program cannot be viewed in the same manner as a bilateral contract governing a discrete transaction.” (citation omitted)). W e cannot see how, und er either part of the Megapulse test, the coop erative agreem ent s q ualif y as contract s for purposes of the T uc ker Act. Our reading is fully consistent with the Supre me Court’ s decision in Bowen v. Massachusetts and the Cour t’ s recent decisions in Department of Education v. California, 604 U.S. 650 (2025) (per cur iam), and National Institutes of Health v. American Public Health Association, 606 U.S. ---- (2025) (per curiam). In Bowen, the state sued under the AP A for declar atory and inj unctiv e relie f after t he Sec retary of H ealth 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 prede cessor, “is the exclusive forum for judicial review of this type of age ncy action” because it purportedly involved “mon ey damag es.” Id. at 883, 891. The Court disagreed, distinguishing the State’ s “equitab le actio n for spe cific rel ief” fro m “an act ion 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 A P A r eview, as one “seeking to enforce [a] statutory mandate,” which could also “happe n[] to be one for t he payment of money.” Id. at 900. Because Massachusetts was not seeking “money in compensation for the damag e sustai ned b y the fai lure of th e Federal

54 P ACITO V. T RUM P Government to pay as mandated” but was instead seeking review of a law that entailed moneta ry implications, its AP A claim was not foreclosed by the T ucker Act. Id. at 900 (emphasis in original). In Department of Education, the states were recipie nts o f various education - related grants, which the De partment of Education terminated. The district cour t issued injunctive relief against the termination o f those gra nts, but it “also require[d] the Government to pay out past - due grant obligations and to continue paying obligations a s they accrue.” 6 04 U.S. at 650. In a brief order, the Court gr anted a stay pending appeal. It noted that “ the AP A ’ s limite d waiver of immunity does not exte nd to orders ‘t o enforce a contractual obligation to pay money’ along the lin es of what the District Court ordered here.” Id. at 651 (quoting G re a t - W est Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002)). The Court iss ued a similar stay in th e National Institute s of Health. NIH had t ermi nated res earch - r elated g rants, for which the America n Public Health Assoc iation sought “relief designed to e nforce 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 AP A. See id. at ---- (Barrett, J., concurring) (“[T] he District Cour t likely lacked juris diction to hear challenges to the grant terminations, which belo ng in the Court of Fed eral Claims. ”). In our case, the or ganizational Plaintif f s are parties to cooperati ve ag reem ents — not procurement contracts — with the St ate Departm ent. Those legal i nstrum ents have been

P ACITO V. T RUM P 55 denominated “cooperative agreements” consistent with the FGCAA de finitions and § 1522, which create s the re settlement program. And despite the Government’ s characterization, these Plaintiffs do not pursue specific performan ce o r comp ensat ion for t he can cellat ion of their cooperative agreements in a manner tha t sounds in contract. 15 As in Bow en, they pursue review of a final agency action and are thus “seeking to enf orce [a] statutory mandate,” which “happens to be on e ” that might result in “ the payment of money.” 487 U.S. at 900. U nlike the grantees i n Department of Education and NIH, P laintiff s 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, Plaintif fs’ AP A cl aim was properly brought in the district court. b. Reviewability under the APA The Government ar gues that the district court, and consequently this court, cannot revie w the President ’ s or the 15 Alt hough we co nclude t hat Pla intif fs’ AP A challenge i s properl y before the district c ourt, if Plaintiffs were seeking co mpensation for past servic es provided un der the c ooperative ag reement s, that would raise a dif ferent se t of iss ues concern ing CFC jurisdi ction over tha t cla im. Se e NIH, 606 U.S. at ---- (Barret t, J., c oncurrin g) (sugges ting t hat a cas e bringin g both a programma tic c hallenge and a claim for pas t - due monie s would r esult in “[t] wo - track litigation ”). Plaintiffs are no t seeking reimbu rsement here; the terminatio n notices exp ressly perm itted recipie nts to make r eimburs ement reque sts for p reviousl y incurred c osts. 16 The organizational Plaintif fs surely have a self - intere st in bei ng able to contin ue the ir coope rative agreements. But the hea rt of their c laims, when consi dered toge ther wit h the indivi dual Pla intif fs’ interests, is to see the refugee resettlement program conti nue, whether or not these specif ic or ganizati ons contin ue to be fun ded. That brings this cas e squarel y within Bowen.

56 P ACITO V. T RUM P agencies’ actio ns under § 706 of the AP A be cause th e “agency action i s comm itt ed to agen cy di scretio n by l aw.” 5 U.S.C. § 701(a)(2). Alt ernatively, the Government ar gues that there is no “final ag ency action” to review. Id. § 704. W e w ill add ress each clai m. Committed to agency discr etion. The Supreme Court has “‘long applied a strong presumption favor ing judicial review of administr ative actio n.’” W eyerhaeuser Co. v. U.S. Fish & W ildlife 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 a buse of discretion,” not all matters of discr etion are unrevi ewable. In f act, we are to “read the exception in § 70 1(a)(2) qui te nar ro wly, restricting it to ‘those rare ci rcumst ances whe re the relev ant s tatut e is drawn so that a court w ould have no meaningful standard against which to judge the agency’ s exercise of dis cretion.’” W eyerhaeus er, 585 U.S. at 23 (quoting Lincoln v. V igil, 508 U.S. 182, 191 (1993)). The Government re sts its claim on the Court’ s d ecision in Lincoln, in which it held that a lu mp - sum appropriation to the Indi an Health Serv ice “for the b enefi t, care, and assistance of the Indians,” 25 U.S.C. § 13, provide d no meaning ful st andard for judi cial revi ew becaus e “the very point of a lump - sum appropria tion is to give an agency th e capacit y to adap t to cha ngin g circums tances and m eet its statutory r esponsibilities in what it sees as the most ef fective or desir able way.” Lincoln, 508 U.S. at 192. Unlike the program in Lincoln, the Refugee A ct 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 establis h such a program, the Act establ ishes t he Office of Refug ee Resett lem ent and

P ACITO V. T RUM P 57 describes, in some detail, the services it is to provide to refugees resettl ed in t he 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 i n 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 re q u i re d by statute.” Community Legal Servs., v. U.S. Dep’ t of HHS, 137 F.4 th 932, 9 40 (9th C ir. 2025) (emphasis in original). T o b e sur e, an ag ency 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 revie w. The Gove rnment 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 AP A pr ovides that “[a]gen cy acti on ma de revi ewabl e by st atute and final agency action for which ther e is no other adequate remedy in a court are subjec t to judicial review.” The AP A thus prevents piecem eal or prem ature r eview of agen cy acti on and preserves the right to challenge any aspect of the agency’ s actio n once the ag ency has reach ed a fi nal d ecision. See 5 U.S.C. § 704 (“A preliminary, procedural, or intermediate agency action or r uling not directly review able is subject to re view on the review of the final agency action.”). Accordingly, the Court has explain ed that “final agency action” will be the “consummation of th e agency’ s decisionmaking process” — not of a “merely tentative or interlocutory nature” — and “one by which rights or obligations have been determined, or from w hich legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (cleaned up).

58 P ACITO V. T RUM P The Government ar gues that Executive Order No. 14163 was not a final ord er becaus e it call s for onl y tempo rary suspension of entry and that the funding termination wa s a 90- day pau se subj ect t o r eassessm ent. Th e Gover nment also points out that the executive order is not subject to AP A review be caus e the Pres iden t is no t an “agency ” wi thin the meaning of the AP A. These argumen ts call f or separat e treatm ent of the executive order and the defunding decision. W e can quickly address the AP A challenge to the President’ s decision to suspend entry. The AP A ’ s def inition of “ agen cy ” does not include the President, see 5 U.S.C. § 701(b)(1), and “[o]ut of respect for the se paration of powers and the unique constitutional position of the President,” the Court has determin ed that the President is not subje ct to the judicial review provisions of the AP A, Franklin v. Massachuset ts, 505 U.S. 788, 800 – 01 (1992). Becaus e “the fi nal acti on complained of is that of the President, and the President is not an agency within the meaning of the Act. . . t here is no final agency action that may be reviewed under the AP A standards.” Id. at 796. Plain tiffs’ challeng e to th e agen cies’ deci sion t o defu nd the refugee program stands on diff erent footing. Executive Order No. 14163 did not it sel f terminate the funding of the resettl ement pr ogram s. In stead, t hose effects flo wed f rom the termin ation letters iss ued by the State Depa rtment. Th e Government acknowledges that the ter mination qualifie d as agency action but contends that the acti on is not final because th e State D epart ment o nly su spended t hose awards in response to the executive order, which provides that USRAP’ s suspension can b e revisi ted eve ry ninety days. Although the State Depar tment initially suspended the awards on January 24, 20 25, in response to Executive Order

P ACITO V. T RUM P 59 No. 14163, it termina ted the awa rds on February 26, 2025, because they “no longer ef fectuate [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 w hich legal consequences will flow.” Benn ett, 520 U.S. at 178 (cl eaned up). 17 * * * W e co nclu de that Plaintif fs ha ve not made a suf ficient showing that they are likely to succeed on thei r claim tha t the execut ive order it self is sub ject to AP A review. Otherwi se, Plaintiffs have made such a showing, and we may proceed to consider the merits of their AP A cha ll enge to the termination of funding for refugee resettlement. 2. A PA Chal lenge to the Defunding of the Cooperative Agreement s The Gove rnment claims tha t the district co urt erred in enjoining the termination of the or ganiza tional Plaintiffs’ cooperati ve agreem ent s. Under § 706 of the AP A, we may “hold unlawful and set aside a gency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 70 6(2)(A). As before, we wil l first consi der separately the defunding of 17 The Governme nt also argu es, brief ly, that Plain tiffs are seeking “ wholes ale impro vement of [a] pr ogram b y court decree,” Luj an v. Nat ’ l W ildlife Fed’n, 497 U.S. 871, 891 (1990) (emphasi s in ori ginal), a task that wou ld “inject[] the judge into day - to - day agency ma nagement,” Nort on v. S. U tah W ilderness All., 542 U.S. 55, 67 (20 04). W e can see nothing in P laintif fs ’ challenges t o the termina tion of fundi ng of the resettlement program that would lead to the “[t]he prospect of per vasive oversight by fede ral co urts ove r the ma nner and pace of agenc y complia nce with. . . congr essional directives.” Id.

60 P ACITO V. T RUM P services to ap plicant s for refug ee statu s who are o utsi de the United States and then turn to the defunding of cooperative agreem ents pro vidin g resettl ement s ervices to refuge es admitted to the United States under USRAP. a. Defunding se rvices to a ppli cants outside the United State s 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 Ac t does not specify how the State Department is to process those who wish to apply for admission to t he Unit ed Stat es as ref ugees. Instead, it is the State Department’ s regula tions th at provide for the filing of applications for a dmission, 8 U.S.C. § 207.1, and the processing of those applications, id. § 207.2. Further details can be found on var ious websites maintained by the USCIS. General information may be found at Refu gees, U.S. Citizenship & Immigr. Servs. (last updated Sept. 17, 2025), https://per ma.cc/K5Z P -29NK. Tha t website, in turn, will refer applica nts to other websites. An applicant for refugee status must be sponsored and then register with the UNHCR. See T he United States Refugee Admissions Pr ogram (USRAP) Cons ultation and W orldwide Pr oce ssing Priorities, U.S. Citizenship & Immigr. Servs. (last up dated Sept. 17, 2025), https://per ma.cc/4HBM - 8LBY. Once an applican t has b een ref erred, the applican t may see k the assis tance of a n RSC, which will further help the applicant navigate the process. See Refugee Proc essing and Security Scr eening, U.S. C itizenship & Immigr. Servs., (last updated Mar. 14, 2024), https://perma.cc/V TS8 - A9YH. The RSCs entered i nto coop erat ive agr eements with t he S tate Department to conduct background interviews, start security checks, and schedule USCIS interviews for conditional approval. If USCIS conditionally approves an applicant,

P ACITO V. T RUM P 61 then an RSC helps t he applicant with m edical screening examinations, cultural orientation progra ms, and travel arrangem ents. W e cannot conclude that it was arbitrary and capricious or otherwise not in accordance with the Refugee Ac t for the State Department to defund the ove rseas operations of the RSCs. Once the President determined to s uspend the entry of refugees, it was not irrationa l for the State Department to termin ate the coo perati ve agre ements wi th RS Cs for the processing of applic ations overseas. As we noted above, although the Refugee Act surely contemplates an admission process, it does not mandate any particular pro cess. Executive Order No. 14163 does anticipate that some refugees will be admit ted on a case -by- cas e basis, but th ese applicat ions can be han dled by the S tate Dep artme nt it self or through future agreement s to provide more limited services. W e see no reason why the State Department should be required to maintain an over seas stru cture capab le of processing tens of thousands of applications when the executiv e order has limi ted ent ry to c ase -by- case consideration. b. Defunding servic es to refugees admitted t o the United State s The district court concluded that it was likely both contrary to law and arbitrary and capricious for the Government to terminate the cooperative agreements. T o the extent that doing so depriv ed newly admi tted re fugees of the domestic r esettlement b enefits to which the y were statutorily entit led, we agr ee. Contrary to law. Congress established a comprehensive statutory framework for providing resettlement services to newly adm itted refugees. See g enerall y 8 U.S.C. §§ 1521–

62 P ACITO V. T RUM P 1524. In so doing, Con gress directed that the Gove rnment “ shall, to the extent of available appropriations”: (i) make availab le su f fi cient res ources for employment training and placement in order to achiev e econo mic sel f - sufficien cy among refugees as quickly as possible, (ii) provide refugees with the opportunity to acquir e suf ficient English language training to enable them t o become effect ively r esettled as quickly as possible, (iii) ins ure that cash assis tance is m ade availab le to refu gees in such a manner as not to discourage their economi c self - su fficiency, in accordanc e with subsection (e)(2), and (iv) insur e that women hav e the s ame o pport unit ies as men to participate in training and instruction. 8 U.S.C. § 1522(a)(1)(A) (emp hasis ad ded). In addi tion to these four mandates, the statute commands that the Government “shall” pr ovide various other services and benefits. See, e.g., id. § 1522(d)(2)(B) (financial and l egal responsib ility for unaccompanied minor refugees “[d]uri ng any interim period while such a c hild is in the United States or in tran sit to the Unite d States but bef ore the c hild is so placed”); id. § 1522 (e)(7)(A) (cas h and medi cal ass istan ce for the first thirty - six months). W e conclude that by failing to provide these statutorily mandated serv ices, the Government acted contrary to law. The distric t court dete rmined that by ter minating the cooperative agreements, the Government rendered the domest ic refug ee reset tl ement i nfrastru cture fun ctional ly inoperat ive, and rec entl y admit ted r efugees have b een

P ACITO V. T RUM P 63 unable t o access reset tlement benefit s as a res ult. The Govern ment itself represented that the funding termination has caused “significant deterioration of functions t hroughout the USR AP.” Despi te 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 termi nating the cooperative agreements, the Government knowingly scrapped its only means of mee ting its statutory duties without any sort of contingency in place. As a resul t of the Government’ s actions, there are thousands of refugees potentially entitled to those serv ices who have not received —and will not rece ive — them. Fo r example, there were 37,000 refugees admitted to the United States during FY25 alone. The Government would also have to supply resett lement services t o the 77 refugees already admitted under the motion panel’ s carveout and to any refugees admitted pursuant to the case -by- case ex ception in § 3(c) of Exec utive Order No. 14163. And pursuant to the President’ s FY26 determination, up to 7,500 new refuge es may be admitted this year. Se e P residential D etermination No. 2025 - 13, 90 Fed. Reg. 49005 (Sept. 30, 2025). Each o f these groups of refugees is entitled to receive § 1522 service s following entry. The Government ar gues it was not contrary to § 1522 to termin ate the coo perati ve agr eement s becau se “ nothi ng in the plain text of the statute requires the Secretar y to fund init ial reset tlement servic es at al l.” W e dis agree. The wor d “ shall is mandatory.” Antonin S calia & Brya n A. Garner, Reading Law: The Interpr etation of Legal T ext 1 12 (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 “s hal l”

64 P ACITO V. T RUM P and “may” are used throughout § 1522; “shall” appears 49 times, whil e “may” appe ars 17 t imes. “An d when th e same Rule uses both ‘may’ and ‘shall,’ the normal inference is that each is used in its usual se nse — the one act being permissive, the other mandato r y. ” Anderson v. Y ungkau, 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 indispu table facts. First, as we have pointed out repeate dly, C ongress 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) (assis tance for chi ldren); (e) (cash and med ical a ssist ance). Second, Congress has comm itted substantial appropriations to fund refugee resettlement. 19 Where Congress has provided detailed instructions for creating a refugee program and then funded those progra ms, the Government must spend those appropriations to provide the mandated services to refugees, whether the refugees number i n the hundreds or t he tens of thousands. See C mty. Legal Ser vs., 1 37 F.4th at 941. 18 Indeed, i f there is ambiguity t o be had here, i t is over t he word “ma y,” which “i s often tre ated as impos ing a duty, rather tha n conferri ng a discretion.” United States ex r el. Sie gel v. Thoman, 1 56 U.S. 353, 3 59 (1895). When t he words “ shal l ” and “may” appear together, however, they “indi cat[e] command in the one a nd permis sion in the othe r.” Id. at 360. 19 Congress a ppropriate d $3.178 bi llion fo r migratio n and refuge e assistance for FY25, see Pub. L. No. 1 19 - 4, § 1 101(a)(1 1) (adopting funding a ppropria ted in divisi on F of Pu b. L. No. 1 18 - 147), whi ch was subseque ntly reduc ed by $800 mi llion i n the R escis sions Act of 2025, Pub. L. No. 1 19 - 28, § 2(b)(6).

P ACITO V. T RUM P 65 The Government’ s position that § 1522(a)(1)(A) requires the Government “to prioritize c ertain goals” only if, at its option, it de cides to provide resettle ment services in the first place is unconvincing. The R efugee Act provides that the United States shall pro vide resettle ment services to newly arrived refugee s. The Act further instru cts the State Depar tment what services, consistent with the monie s appropriated, will be offere d under the resettlement p rogram. And the A ct requires the Government to s ub mit a detailed annual repor t t o Congress on the re settlement 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 Depar tment will have discre tion in how the program is run. But the Governmen t does not have discretion wh ether to provide resettlement service s at all. So long as the United States is admittin g refugees, th e Gove rnment has a duty t o provide th em with rese ttlement services. Adopting the Government’ s posi tion, the dissent fo cuses on the prefatory language “[i]n providing assistance under this section,” arguing that “in,” as it is used he re, really means “i f.” S ee Dissenting Op. at 88–89 (quoting § 1522(a)(1)(A)). Although that may not be a gram matically 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 opini on, you shall address ar guments X, Y, and Z.” Should the clerk interpret those instructions as a command to draft an opinion that inclu des a discussion of X, Y, and Z arguments? O r should the clerk construe them — as the dissent contends — to mean that h e has

66 P ACITO V. T RUM P the option whether to draft the opinion at all, but that if he does decide to draf t it, he s hould make sure to addre ss X, Y, and Z? In this e xample, “in” is obviously not conditional; the clerk is not making a decision about whe ther to draft the opinion or not. Congress has used similar “in providing” language in other statutes that impose a mandatory duty on the Government. T ake 15 U.S.C. § 4724, for instance, the struct ure of wh ich cl os ely resemb les t hat of § 1522. Sectio n 4724(a) mand ates that “the Secr etary of Comm erce shall provide assistance for trade shows in t he United State s,” while § 4724(b) clarifies that such “[a]ssis tance u nder sub secti on (a) may be provided to” various ide ntified entitie s. Section 4724(c)— like § 1522(a)(1)(A) — identifies the objec t ives of the mandatory program: “In providing assistance under this se ction, the Secreta ry of Commer ce shal l ... mak e spe cial efforts to facilita te participation b y small businesse s and compan ies new to export.” Similarly, 12 U.S.C. § 41 13, which mandat es that the Government “shall” provide funds to certain d isplac ed low - i ncom e famili es “[t]o t he ext ent suf ficient funds are made available under appropriations Acts,” contains the qualification that “[i]n providing assis tance under t his s ectio n, the S ecretary sh all al locate t he assistance on a regiona l basis.” The duty to provide assistance in these examples is manda tory, 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 continu es to use legislative history in limited circums tances. See, e.g., Zivotofsky, 576 U.S. at 31. Here, “[t]hose who deem legislative history a useful interpr etive tool will find that the co ngressional history of [the Refugee

P ACITO V. T RUM P 67 Act] supports [our] analysis.” G u e r re ro - Lasprilla v. Barr, 589 U.S. 221, 234 (2020). Nothing in the legislative history of the R efugee Act, w hich creat ed the cu rren t refugee re settlement program, suggests that Congress intended the program to be discretionary. T o the contrary, the Senate Report on the Refug ee Act decl ares th at the Act’ s purp ose is to est ablish “a perman en t and sy stemat ic pro cedure” to provide “comprehensive and uniform provisions for assis tance to t hose refu gees who are adm itted,” th ereb y “plac[ing] into law what we do for r efugees now by custom.” S. Rep. No. 96 - 256, at 1, 4 (1979). One o f the bil l’ s “basic objectives” was to “provide[] for federal support of the refugee r esett lement proces s .. . and extend[] coverage to all refugees entering the United States for two years for cash and medical benef its, and l onger for other pr ogr ams that help the refug ees no rmali ze thei r lives in thei r adopted communities. ” Id. at 1 –2. The Report una mbiguously states that “t he federal gov ernmen t clea rly has a responsibility to assist state s and local c ommunities in rese ttling th e refugee s” and explains that § 1522 “provides this assistance.” Id. at 10. The related House C onference Report fur ther provides that “the President is required to provide for a study of which agency is best abl e to admi nist er the reset tlement grant program,” while re servi ng for the President discr etion “to designate the appropriate agency and/or of ficial to carry out such r es ponsibility.” H.R. Conf. Rep. No. 96 -781, at 22 (1 980) (emph asis ad ded). The Govern ment ar gues that it acted w ithin its lawful discretion in terminating the coope rative agreements because § 1522(b)(1)(A) merely “authorize[s],” rather than mandates, the Government to enter into cooperative agreem ents wit h res ettle ment ag encies t o provide certain

68 P ACITO V. T RUM P services. 20 T o be sure, the Government does not necessarily have to provide the § 1522 resettlement services through these specific r esett lemen t agencies or through the use of cooperati ve agreem ent s at all — the Government re tains discretion as to the method through which it p rovides the services. But that discret ion does not extend to rendering a ll resettl ement s ervices effectively i noperati ve as t he Government appears to have don e here. That the Govern ment may ultimate ly enjoy wide disc retion as to how and with whom it mee ts its statutor y obligations does not mean it may choose t o shirk those obligations in the first in stance. Se ction 1522(a) imposes a mandatory duty on the Government; § 1522(b) merely authorize s one potential procedure through which the Government may dischar ge that duty. In short, w e concl ude th at the word “shall” means just that. And here, Congress has di rected t hat the Government “shall ” provide cer tain s ervices s o long as there are fun ds appropriated for t hat purpose. 8 U.S.C. § 1522(a)(1)(A). By simultaneously termina ting all cooperative ag reemen ts to provide d omestic rese ttlement service s, the Governme nt left 20 The dissent also p oints to the title o f § 1522, “ Authoriz ation for programs for domestic resettl ement of and assistance to refugees,” as eviden ce that the statute is merely p ermissive. Dissenting Op. at 87. We do not t hink the ter m “auth orizat ion” can bear t hat wei ght. The t erm “authoriz ation” g rants an age ncy the powe r to do somethi ng, but of itsel f, the term doe s not tel l us whether tha t authorit y is manda tory or discretion ary. A d irection to do so meth ing is s urely aut horizat ion to do it. And while a ti tle ma y serve a s “a us eful clue” to under standi ng an unclear statutory prov ision, “[a] title [may] no t supplant the actua l text of the pr ovision.” D ubin v. Uni ted States, 599 U.S. 1 10, 121 – 24 (2023). In this c ase, rea ding § 1 522 as a whole pe rsuades us that t he aut horization to provi de rese ttlement services is mandat ory, and the title doe s not diss uade us from t hat readin g.

P ACITO V. T RUM P 69 itself without a viab le alternati ve means of providing those statutorily ma ndated services. The district court therefo re did not abuse its discretion in concluding that the Government likely acted contrary to law in so doing. 21 Arbitrary and Capricious. W e al so agr ee wit h the district court’ s conclusi on that the termination of the cooperati ve ag reem ents was lik ely arb itrary and caprici ous. First, the Government acted arbitrarily and capri ciously in suspending and terminating the cooper ativ e agreemen ts without providing a reasoned explana tion, factual findings, or bases for t he te rmination s. T o survive review under the arbitrary and capricious standard, an agency’ s a ction 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 V ehicle M f r. A s s ’ n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983)). T o have engaged in reasoned decisionmaking, the agency “ must examine the relevant data and arti culat e a sati sfact ory expl anati on for i ts act ion including a ‘rational connection between the facts found and the choi ce made.’” Id. (quot ing State Farm, 463 U.S. at 43). 21 W e note that the e ffect of our holding i s not t hat the Government is permanently preve nted f rom t erminating t he c ooperati ve agreeme nts. The dist rict court ’ s injunctions merely res tore the s tatus quo before t he imprope r terminati ons and r equire the Government to est ablish a n alternativ e mechanism to provide the § 1522 services before i t m ay lawfully te rminate the agre ements. See, e.g., Nw. Envtl. Def. Ctr. v. Bonnevill e Power Admin., 47 7 F.3d 66 8, 681 (9t h Cir. 200 7) (requiri ng an agenc y that vi olated the AP A by trans ferring funct ions to ne w contract or “to fund t he [origin al contra ctor], at l east for a pe riod of time in which [t he agency] can recons ider its action in a ccordance with [th e court’ s] opini on”).

70 P ACITO V. T RUM P Agencies cannot defend rules from AP A 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 Or der No. 14 169, titled “Reevaluating and Realigning United States Foreign Aid.” But an executi ve order that merel y calls for a pause in “ for eign dev elopmen t ass istan ce” canno t serv e as reasonab le justificatio n for the cessation of statutorily mandate d domestic s ervices. See 8 U.S.C. § 1522(a)(3) (expre ssly characterizing the services provide d under § 1522 as “domest ic assi stance ”). Mo reover, nei ther of the executi ve order s at issue here eve n refers t o — much l ess d irects t he agencies t o ce ase or defund — domestic resettlement services. In the February 26 termination notices, th e only explanation the Government provide d for the termination s was that th ey repr esent ed a “policy dete rmination vested in the Secret ary of St ate” an d a findi ng that the awards “no longer effectu ate [] agency priorities.” But as we have held, although the Government may be entitled to ch ange its mind as to what agency priorities are, it “must supply a reasoned analysis indicating that prior policies a nd standards are be ing deliber ately ch anged, n ot cas ually ignored.” Nw. Envtl. Def. C t r., 477 F.3d at 687. The G overnment supplie d no such analysi s in the termina tion letter s. T he Government also cites 2 C.F.R. § 200.340 as authority for the terminat ions, but that reg ulation allows agen cies to termina te coopera tive agreements only “to the extent authorize d by law,” a nd we have alr eady con cluded that it was co ntrary to law to termin ate the coo perati ve agr eement s in such a manner that prevented the Government from fulfilling its statutory obligations.

P ACITO V. T RUM P 71 The Government also likely acted arb itraril y and capriciously in terminat ing th e cooperati ve agreem ents without firs t considering the relia nce interests of individual refugees depending on the esse ntial reset tlement s ervices provided thereunder. The Supreme Court has explained that an agency acts arbitrarily and capriciously if i t changes course without first co nsidering legitimate reliance intere sts in longstanding policies. DHS v. Regents of Univ. of Cal., 591 U.S. 1, 30 – 33 (2020). T o lawfully termina t e the cooperati ve agreem ents, therefor e, the Govern ment was “requir ed to as sess wheth er ther e were relianc e int erests, determi ne whet her t hey wer e sign ificant, and weigh any such interests against competing policy concerns.” Id. at 33. But there is no indication that the Government ever consider ed the individua l Plaintif fs’ relia nce inter ests in receivin g reset tlemen t serv ices und er the coo perative agreements before issuing its termination notices. W e thus conclude that Plaintif fs’ AP A cha llenge is likel y to succeed on this alternative ground. V. REMAINING WINT ER F ACTORS Because Plai ntiffs have f ailed t o show t hat there are ev en serious questions as to the merits of th e i r chall enges to the executiv e order, to the suspension of refugee processing and admissions, and to the defunding of ove rseas refugee services, we need not address the remaining W inter factors as to those claim s. See Disney Enters., Inc. v. V i dAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (“ the court need not consider the other fa ctors” if no likelihood of succe ss is shown). But having determined that Plaintif fs have demonstrated a strong likelihood of succe ss on their A PA challeng e to the d efundin g of d omesti c resettl emen t services, we briefly address the remaining equitable factors with respect t o that cl aim only. W e co nclude t hat tho se facto rs

72 P ACITO V. T RUM P also weigh in favor of granting that portion of Plaintif fs’ requested reli ef. A. Irr eparable Harm At minimum, the ind ividua l Plaintif fs who have recently been ad mitt ed as refu gees t o th e United St ates hav e demonstrated that they would likely be irrepa rably harmed absent inju nctive relief. W e h ave not ed that “ [i]rrepa rable harm should be determined by reference to the pu rposes of the statute being enforced.” Nat’ l W ildlife Fed ’ n v. Nat ’ l Marine Fisherie s Serv., 886 F.3d 803, 818 (9th C ir. 2018). The express purpose of § 1522 is fourfold: to “(i) mak e available suf ficient resources for employment training and placement in order t o achi eve e conomi c self - sufficien cy among refugees a s quickly as possible, (ii) provide refugees with the opportunity to acquire sufficient English language training to e nable them to become effec tively resettled as quickly as possible, (iii) insure that ca sh assistance is made available to refugees in s uch a manner as not to discour a ge their ec onomic self - sufficiency, .. . and (iv) insure that women have the same opportuni ties as men to participate in training and instruction.” 8 U.S.C. § 1522 (a)(1)(A). For newly resettled refugees, the Government’ s termin ation o f the co oper ativ e agreemen ts h as end ed access to various statutorily ma ndated in itial resettle ment -support services aimed at acco mplishing these purposes. As the district court found, these recent ar rivals “have been cut off from cr itical resettlement bene fits and support services needed to establi sh thei r new li ves in America.” The loss of access to these forms of support during the cruc ial period after a refug ee firs t ent ers t he Uni ted St ates c onstitutes irrepar able h arm. Se e E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 677 (9th Cir. 2021) (harm is irreparable

P ACITO V. T RUM P 73 “where p arties cann ot typ ically recover mon etary damages flowing from their injury— as i s often t he cas e in AP A cases”); Enyart v. Nat ’ l Conf. of Bar Exam ’ rs, Inc., 630 F.3d 1 153, 1 165 (9th C ir. 2011) (“loss of opportunity to pursue [Plaintiff s’] chosen profession[s]” constitutes irreparable harm). Accordingly, the district court did not abuse its dis cretion in concluding that the individual Plaintif fs would face irreparable harm absent a preliminary injunction. B. Balance of Equities & Public Inter est B ecause Pl ainti ffs have e stabl ished a likelihood that the Government’ s termination of the cooperative a greements violated the Refugee Act and th e A PA, we conclude that both the public interest and the balance of equities tip sharply in favor of injunctive relief. “[I]t is cle ar that it would not be equitable or in the public ’ s intere st to allow the [Government]. . . to violate the requireme nts of federa l law, especial ly when t here are no adequat e remed ies availabl e.” V alle del Sol I nc. v. Whit ing, 732 F.3d 1006, 1029 (9th Cir. 2013) (citation omitted); s ee also East Bay Sanctuary Covenant, 993 F.3d at 679 (“[T]he public has an interest in ensuring that the ‘statutes enac ted by [their] repres entativ es are no t imp eriled by executiv e fiat.’” (cita tion omitted)); California v. Azar, 91 1 F.3d 558, 581 (9th Cir. 2018) (“The public interest is serve d by compliance with the AP A.”). The public interest would be served here by requiring the Government to comply with the requirements imposed on it by Congress through th e Refug ee A ct and the A PA. On the other hand, the Gove rnment will suffer no harm from being required to meet its statutory o bligations. Indeed, the Government has presented no evidence that it

74 P ACITO V. T RUM P would be harmed by such a l imited - in - scope injunction pending the district court’ s final judgment on the merits. The Govern ment’ s primary argume nt is that the distr ict court’ s second injunction “forces the Government to expend taxpayer funds in ways the Government has d etermined contravene the interests of the country.” That argument is not compelling where, as her e, Congress appropriated funds and commanded the G overnment to spend them o n projects it has expressl y determi ned a re in the public inter est. See 8 U.S.C. § 1522(a). Moreov er, becaus e the di stri ct court ’ s injunctions do not n eces sarily r equir e the disburs em ent of any funds to any specific entity, we are not convinced by the Govern ment’ s argument that it will b e 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 Plaintif fs have made the requisite showing as to all four W inter factors, and the district court did not abuse its discretion in granting injunctive relief to ensure the Government continues to provide the domestic resettlement se rvices mandated by statute. VI. SCOPE OF RELIEF Recently, the Supreme Court determined tha t “universal injunctions”— injunctions prohibiting enforcement of a law or policy against anyone, anywhe re — “lik ely ex ceed the equitable authority that Congress has grante d to federal courts” under the Judiciary A ct of 1789. T r ump v. CASA, Inc., 606 U.S. 831, 837 (2025). The G overnment a r gues that the distric t court’ s injunc tions are so overly broa d as to constitute “universal injunctions” that run afoul of CASA. W e d isagr ee.

P ACITO V. T RUM P 75 C AS A did not af fect distric t courts’ ability to issue c lass - wide injunc tive relief. Se e CASA, 606 U.S. at 868 (Alito, J., concurring) (“Putting the kibosh on un iversal injunctions does nothing to disrupt Rule 23’ s re quirements.”) And here, the distric t court has certifi ed three Ru le 23 su bclasses. That class cert ificati on orde r is no t on appeal. Because a class has been certified, the district court’ s injunctions comply with CASA, and we need not address whether t hey would constitute imp ermissible unive rsal injunction s absent the exist ence of a cl ass. S ee CASA, 606 U.S. at 849–50. VII. CONCLUSION W e recognize the en ormous practica l implications of this decisi on. There are over one hundred thousand v etted 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 consequenc e of C ongress’ s sw eeping grant of power to the President to “suspend the e ntry of all aliens or any class of alien s.” 8 U.S.C. § 1 182(f). Whet her that consequence reflects prudent policy is not a question for this court. T o hold otherwise would be to substi tute our judgment for Congress’ s, and the President’ s authority under § 1 182(f) pr ec ludes much of Plaintiffs ’ request for relief here. Because P laint iffs have n ot sho wn that t hey are li kely to succeed on the merit s of th eir challenges to Execu tiv e Order No. 14163, the cessation of refugee processi ng and admissions, and the funding of refugee rese ttlement services abroad, we rev erse those portions of the pre liminary injunctions as an abuse of discretion. See W inter, 555 U.S. at 32. But becaus e Plain tiffs are likely to succe ed o n their AP A challenge to the termination of cooperative agreements

76 P ACITO V. T RUM P to provide domestic rese ttlement ser vices, we affirm the district co urt’ s preliminary injunc tions to the extent the y require the Government to reins tate s uch co operat ive agreem ents nec essary t o pro vide th e resett lemen t servi ces described in § 1522 to refugees who have been admitted to the United States. Each party shall bear its own costs on appeal. AFFIRMED IN P ART; RE VERSED IN P ART. LEE, Circuit Judge, dissenting in part: I agree with J udge By bee’ s magist erial analy sis i n Section IV.A. explaining why 8 U.S.C. § 1 182(f) authorizes the President to suspend the admissions of refugees. I, however, diss ent on two points, both of which ar e close calls. First, I do not think we ha ve jurisdiction over the or ganizatio nal plaintif fs’ claims b ecause the y effective ly seek reinstatement of funding for refugee resettlement services. Such b reach -of- contract claims seeking money from the federal government must be heard by the Court of F ederal Claims. Second, even if w e do have jurisdiction, I believe the better reading of the statutory provisi ons is that the United States has discretion whether to fund these services. I also write separately to hi ghlight what happened in the dist rict court because it reflect s a rec ent tr end that I fear will erode the cre dibility of the judiciary. T o be clear, courts can and should intervene if the President oversteps legal bounds. We, however, must not be seduced by the temptation of judicial re sistance: Distr ict courts can not stand athwart, yelling “stop” just because they genuinely

P ACITO V. T RUM P 77 believe t hey are th e last refuge ag ainst polici es that t hey deem to be deeply unwise. Otherwise, we risk inching towards an imperial judiciary that lords ove r the President and Congress. Cf. T rum p v. CASA, Inc., 606 U.S. 831, 858 (2025) (warning against “embracing an imper ial judiciary”). * * * * When President T rump entered off ice on January 20, 2025, he suspended the admissi on 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 Admi ssions Program.” Congress expressly empowered the President to do so in clear a nd broad statutory language: He can “suspend the entry of all aliens or any class of aliens” whose entry he “finds” would be “detri mental to the inte rests of the United States.” 8 U.S.C. § 1 182(f). Only a few years ago, the Supreme Court upheld President T rump’ s so - called “Mu slim ban,” stating that this statutory provision “exudes deference to the President” and that he could ban the entry of a liens from certain Muslim countries with inadequate national security vetting. Tr u m p v. Hawaii, 585 U.S. 667, 683 - 84 (2018) (“By its plain language, § 1 182 (f) grants the President broad discretion to suspend the entry of aliens into the United Stat es.”). Y et the distr ict court prelimin arily enjoine d the President’ s executive order suspending refugee admissions. As the majority opinion explains, the district court’ s or der cannot be squared with the statutory text or the Supreme Court’ s decision in T rump v. Hawai i. Not surprisingly, an emer gency motions panel of the Ninth Circuit — c onsisting of Judges Silverman, Bade, and de Alba — mostly stay ed the district cou rt’ s preliminary

78 P ACITO V. T RUM P injunction, e xcept that it te mporarily a llowed in th ose 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 ove r 100,000 refugees — a number so high that an exa sperated Ninth Circuit panel remarked that its carveout “was not intended to compel the government to admit more refugees than authorized for the entire F iscal Y ear 2025” a nd that the “Pl aintiffs clearl y 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 “Plaintif f Pacito, who sold all of his belongings in anticipation of flyin g to safet y in th e Uni ted S tates an d was fo rced to s helter with his wife and baby in the parking lot of the U.S. embassy in Nairo bi afte r their t ra vel was ab rupt ly cancel led.” The panel emphasized that those who have “strong reliance interest arising prior to January 20, 2025” mea ns people “compar able to Plain tiff Pacit o.” The U.S. government then started a dmitting people w ith relianc e interests similar to Pacito ’ s. Despite this stay imposed by the Ninth Circuit, the district co urt issued a “Compliance Fra mework Order” that expanded the categories of refugees who could b e admitted. It held that r efugees “whos e trav el was cance led befor e January 20 [i.e., befor e the EO went into ef fect ] are no t necessarily excluded from the injunctive relief” — even though the Ninth Circuit expressly held that an individual must have had “confirmable travel plans to t he United States” as of January 20, 2025, to be admitted. So even thos e who had their travel plans cancelled in De cember 2024 during the Biden administration might have been e ligible for admission if their plans would have been rescheduled but for

P ACITO V. T RUM P 79 the EO. The district court also presumed Afghan refugees at Camp As Sayliyah could be admitted, despite the Ninth Circuit’ s s tay order including no such exc eption. The district court’ s “Compliance Framework Order” was in dee p tension with the Ninth Circu it emergency motion panel’ s s tay orders. The distric t court then a llowed the pla intif fs’ lawyers (at a non - governmental or ganization (NGO) and Perkins C oie) to initially re view the co urt - ordered survey responses from potentially thousands of refugees to flag who might have significa nt reliance in terests to qualify for admission. The government then had seven days to decide whether it disagreed. If it did so, the plaintif fs would submit a six -page brief to th e magistrate judge (with no time limit for submitting it); the government, howe ver, 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 ha ving a st rong rel iance i nteres t. The district court at one point even o rdered the United States to “su bmit weekly re ports to the Cour t detailing actions taken since the last report to comply wit h the Court’ s injunctions”— in ef fect, a weekly homework assignment for the Pres ident. Our con stitutional structu re will topp le if a sin gle distric t court sits atop the President, Congress, the Supreme Court, and the fed eral app ell ate court. As Alexander Hamilton noted in The Federalist No. 78, the judiciary is the “weakest” branch b ecaus e it has “neither FORCE nor WILL” but “merely judgment.” W e do not have the le git imacy of Congres s becaus e we are unelect ed and un accou ntable t o the

80 P ACITO V. T RUM P people. And we lack the power to enforce our own decisions and depend on the executive branch to enf orce them. W e thus rely solely on our credibility as neutral ar biters of the law, the mos t preciou s ass et we hav e as jud ges. That means we must scrupulously stay in our legal lane and a bide by the separation of powers system established by the Framers. Not only that, we inferior court judges must pay h eed to the Supreme Court. As Justi ce Gorsuch admonished, “[l]ower court judges may sometimes disagree with [the Supreme] Court’ s decisions, but they are never free to def y them.” Nat’l Insts. of Health v. Am. Pub. Health Ass’n (NIH), 145 S. Ct. 2658, 2663 (2025) (Gorsuch, J., concu rring 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 wel coming our family and feel blessed to enjoy the libe rties and opportunities provided by our great country. This experience shapes my own personal views on various policy issues. But whatever personal opinions I may hav e, they cannot and must not have any bearing on the legal issues before us. Our allegiance is always to the law and the Constitution. S ee W illiam H. Pryor, Jr. “The Judicial Oath a nd 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 t he Unit ed Stat es wherev er it lead s. W e d o not swear to follow a prediction or speculation about what future generations will favor.”).

P ACITO V. T RUM P 81 * * * * I. We lac k jurisdic tion to c onsider the plaint iffs’ claims se eking fu nding. The Supre me Court recently re iterated in its inte rim docket o rders that the T ucker Act r equir es cases a gainst the federal government sounding in contract law to b e brought before the Court of Fede ral Claims. 28 U.S.C. § 1491(a)(1); Dep't of Educ. v. Cali fornia, 604 U.S. 650, 651 (2025); see also NIH, 145 S.Ct. at 2660 (plurality opinio n). The majority, however, contends that this jurisdictional restriction does not apply here because plaintif fs do not seek “to enforce a contractual obligation to pay money.” G re a t - W est 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 w hether a claim against the federa l gover nment belongs in a distri ct court or the Court of Federal Claims. United Aer onauti cal Corp. v. U.S. Air For ce, 80 F.4th 1 017, 1026 (9th Cir. 2023) (adopting the two - part te st 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 “right s and remed ies are contractually based,” then “only the Court of Federal Cl aims” has jurisdiction over the claim. United Ae r onautical Corp., 80 F.4th at 1026 (emphasis in original). And a “contract - based actio n falls withi n the sco pe of the T ucker A ct” if th e plaint iff “seeks money damages f or the breach of a gov ernment contract” (rather than injunctive relief based on a statutory or constitutiona l claim). Id. (emphasis in original). In other words, a cl aim belongs in the Court of Federal Claims if a

82 P ACITO V. T RUM P party ess ential ly seeks mon etary r elief bas ed on a contract. I address each prong of the Megapulse test be low. A. The organizational plaintiffs’ “source of rights” arises f rom a con tract. The majority opinion correctly points out that the or ganizatio nal plaintif fs’ alleged rights a rise out of their “cooper ative ag reem ents” wi th the f ederal gover nmen t. The majority, however, thinks c ooperative agreements are not suf ficiently c ontractual. T o 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 orga nizational plai ntiff s are ef fectively seeking money damages based on their co ntract. The majority opinion seeks refuge in the F ederal Grant and Cooperative Agr eement Act of 1977 (FGCAA) which defines grants, cooperative agreements, and procurement contract s. See 31 U.S.C. §§ 6301– 08. Procurement contract s und er the FGCAA necess arily in volve t he fed eral government directly as a party to the bar gain. 31 U.S.C. § 6303. Grants involve the federal government the least, as all they require ar e disbursement and occasional supervision. 31 U.S.C. § 6304. Coopera tive 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, o n a sliding scale anal ysis, grants ar e least like con tracts; cooperati ve agreem ents are in the m iddl e; and cont racts a re cont racts. See 31 U.S.C. §§ 6303–05. Using this fr amework, the majority opinion claims that the State D epartment’ s “substantia l involvement” in providing services to third parties separates these arrangements from contractual relationships. But

P ACITO V. T RUM P 83 contract s — such as s ervice contract s or those agreem ents with good - faith ef fort provisions — can ofte n require substantial involvement of parties. So “s ubstantial involvement” alone cannot be the dispositive fa ctor. The majority a lso claims that a coo perative agreemen t is unlike a contract bec ause the gov ernment itself does n ot d irectly benef it from it. But third - party benefi ciary co ntract s —in whic h one of the parties does not directly benefit from the agreem ent — are co mmo n. See CONTR ACT, Black's La w Dictio nary (12th ed. 202 4) (defining third - party - b eneficia ry contracts). A contract does not stop being a contract just because a third p arty is the i ntended benefi ciary. Most importantly, the Supreme Court in rece nt orders on the inter im docket has hinted at a more functional frame work for T ucker 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 G re a t - W est Life & Annuity Ins. Co., 534 U.S. at 212). If so, then it belongs in the Court of Federal Claim s. See id. (“[T]he T ucker Act grants the Court of Federal Claims jurisdiction over suits b ased on ‘any express o r im plied co ntract w ith the United States.’”) (quoting 28 U.S.C. § 1491(a)(1)); cf. Me gapulse, 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 gove rnment’ s “termin ation o f vari ous r esearch - relat ed gran ts” seeks to enforce an “ob ligation to pay money pursuant to those grants” and thus likely cannot be ra ised as an AP A claim in district court. 145 S. Ct. 2658 at 2660. In short, the Supreme

84 P ACITO V. T RUM P 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 e nds. It envisions a world where claims based on procurement contract s (the most cont ract - like) and grants (the l east contract - like) may go to the Court of Federal Claims, but claims arisin g from coop erat ive agreements (more like contracts than grants) may be at home in district c ourt. This is a confusing result. Here, the o rganizati onal pl ainti f fs dem and the f ederal government to reinstate funding. As they put it i n their complaint, they want the c ourt to “direct[]” the gover nment to “restore funding pursuant to the terms of all cooperative agreem ents.” Put ano ther way, they want the court to enforce an “obligation to pay money pursuant to those” cooperati ve agr eement s. N IH, 145 S. Ct. 2658 at 2660. Such a claim be longs in the Cour t of Federa l Claims. 2 1 T o be su re, the majority cites several cases that suggest a difference between pr ocurement c ontrac ts and coope rative agreement s. B ut all those c ases exc ept one predat e the Supr eme Court’ s 2025 T uc ker Act orders, whi ch ap pear to a dopt a more pra gmatic ana lysis (i.e., whether the plai ntif f is se eking money from the feder al governm ent ari sing out of a contract). The one half - exception is a D.C. district court case in which “[n]o count claim[ed] that plainti ffs are entitled to relief because of any term or conditi on of their cooperative agreements .. . or any alleged breach of those agreements.” Am. Ct r. For Int’l Sol idarity v. Chavez - Der emer, 789 F. Supp. 3d 66, 84 (D. D.C. 2025). In cont rast here, the or ganizationa l plai ntif fs see k funding reinst atement ba sed on the cooperative agreements. 2 It is less clear whe ther the in dividu al plaintiffs — who are not express parties to these cooperative agreements — are seeking monet ary relief based on a contract (though perhaps they may be characterized as third - party beneficiaries of t he cooperative agree ments). In an y event, as

P ACITO V. T RUM P 85 B. The “typ e of relief s ough t” here is mon ey based on a contract. W e n ext turn to “the type of relief sought” under the Megapulse t wo - part an al ysis. Megapulse, 672 F. 2d at 968. “If rig hts and remedi es are statutorily or constitutionall y based, then districts courts have jurisdiction; if r ights and remedies are contractually based then only the Court of Federa l Claims does, even if the plain tiff for mally seeks injunctive r elief.” U nited Aer onautical Corp., 80 F.4th at 1026 (emphases in original). Or ganizationa l and individual plaintif fs in their complaint make clear that they want funding in the cooperati ve agr eement s rest ored. Th e majority opinion, however, dist inguishes this ask from those in the NIH and Department of Education cas es by cl aimin g th ose we re contractual because the plaintif fs there sought past -due payment under the grants. In contrast here, the majority says, t he plain tiffs seek “to enfo rce a s tatut ory m andate” which only incidentally results in the payment of mo n e y. But we must be wary of “an AP A action seeking injun ctive and declar atory relief ” when in realit y it is a “‘di sguis ed’ brea ch -of- contract claim. ” United Aer onautical, 80 F.4th at 1026. A plaintif f cannot point to a statute to a void the Court of Federa l Claims when it is seeking money based on a contrac t. And c entrally here, the or ganizational plaintiff s want the federal government to turn on the funding spigot again — and r eceive the flow of money under the cooperative agreements. Indeed, the plaint if fs, the district co urt, and the majority opinion highlig ht the critical explaine d later, their claims are unavail ing beca use funding u nder § 1522 is not ma ndatory an d thus g rants no s tatutor y rights to sue.

86 P ACITO V. T RUM P role of cooperative agreements in the program’ s operation. The distric t court frame d the termination’ s impact in te rms of funding cuts that led to layof fs, furloughs, and service reduction. The plaintif fs’ prayer for relief also focuses on the funding through these cooperative agreements. And their motion for preliminary injunction refers to the “USRAP Funding T ermination,” “ contract - termi nation claus es,” and the “ter mination of USRAP - related funding.” 3 Money is the core of the claim. This lawsuit belongs to the Court of Federal C laims. II. Section 1522 does not mandate the f unding of resettl ement s ervices. Even if we have jur isdict ion over these claims, I believe they fail because Sec tion 1522 gi ves the feder al 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 w ord “s hall” in sub section (a)(1)(A). It is a close cal l, but I belie ve the statute merely authoriz es — and does not mandate —funding. This i s apparent when th e stat ute is v iewed as a whole. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpr etation of Legal T exts 167 (2012) (“Per haps no interpre tive fault is mor e common tha n the failure to follow the whole - text cannon, which calls on the judicial i nterpreter 3 The majo rity argues that the organization al plaintiffs really seek the refugee resett lement pr ogram’ s restorat ion no mat ter the ir own fun ding status. The pleadin gs and the district co urt’ s analysis coun ter this claim. The or ganizati onal plaint if fs paint the impact of the termin ation in financia l terms a nd they se ek rest oration of the agreeme nts whi ch grant them federal fu nds.

P ACITO V. T RUM P 87 to consider the entire text, in view of its s tructure and of the physical and logical relation of its many parts.”). W e start with the title: Section 15 22’ s is titled “ Authorization for programs for dome stic resettlement of and assi stanc e to r efugees. ” (emp hasis added). Authorization is permissive, not mandatory. AUTHORIZA T ION, Black's Law D ictionary (12th ed. 2024) (defining it as “permission to do something” or the “official do c ument granting such permission”). While titles are not the opera tive text, the Supreme Court has held that they provide helpful context in determining a statute’ s meaning. See Almendar ez- T orr es 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 sta tute.” (quoting T rainmen v. Balt. & Ohio R. Co., 3 31 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 t he remainder of the statutory scheme ... because only one of the permissible meanings produces a substantive ef fect that is compatible with the rest of the law.’” (quoting U nited Sav. Assn. of T ex. v. T imbers of Inwood For est Associates, Ltd., 484 U.S. 365, 371 (1988)). The statutory language in the operative f unding provision in § 1522 underscore s that funding is discretionary. The four specific statutory provisions that provide funding for dif ferent refugee services — e.g., “Program of ini tial res ettl ement, ” “Cash ass ist ance and medical assist ance to re fug ees” — all state in th eir text that the “Dir ector is authorized ” to provide assistance. 8 U.S.C. § 1522(b)- (e) (emphasis added). This text explicitly grants the executive branch discretion over funding. Con federa ted

88 P ACITO V. T RUM P Salish & Kootenai T ribes v. Unit ed States, 343 F.3d 1 193, 1 196 (9th Cir. 2003) (no ting that the term “authorize” has “the connotation of being permissive, ra ther than mandato ry” (cl eaned up)). In ar guing that Sectio n 1522 imposes mandatory funding, my colleagues look to § 1522(a)— illustra tively titled “Conditions and considerations” — and f ocus on the word “shal l”: (a) Conditions and considerations (1)(A) In providing assistance under thi s section, the Director shall, to the extent of available appropriations, (i) make availabl e sufficient resources for employment training and placement in order to achieve economi c 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 ef fectivel y reset tl ed as qui ckly as possible, (iii) insu re that cash assi stanc e is made av ailabl e to re fug ees in su ch a manner as not to discourage their economic self - sufficiency, in a ccordance with subsection (e)(2), and (iv) insure th at women hav e the s ame o pport unit ies as men to participate in training and instruction. But the “sha ll” language is qualif ied by the immedia tely preceding phrase: “In providing assistance under this sectio n [i.e., the disc retionary funding provisions under § 1522(b)- (e)]. . .” In other words, § 1522(a) imposes certain mandatory “conditions and considerations” if

P ACITO V. T RUM P 89 the government chooses to fund refugee programs. For example, under subsection (a)(1)(A)(i), the Director “shall. . . make av ail able sufficien t reso urces fo r employment training and placement [under § 1522(c)’ s discretionary funding for “Project gra nts and contracts for services for refugees ”] i n order to a chieve econo mic self - sufficiency among r efug ees as qui ckly as possi ble.” S tated dif ferently, if the government chooses to fund employment training, it shall consi der “econo mic self - su fficiency . .. a s 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. Subs ection (a)(1)(A)(i i) em phasizes that a key “consideration” for funding is that refugees should learn “suf ficie nt English.” Subsec tion (iii) im poses a c ondition on “cash assi stanc e” such t hat i t is “m ade availab le . . . in s uch a manner as not t o dis courage thei r econ omi c self - suf ficiency.” And subsection (iv) ensures that women have the same opportunities as men w hen the government chooses to provide training and instruction. T o bolster their claim of mandatory spendin g, my colleagu es cite p ortion s of s ubsecti on (a) as well as subsections (d)(2)(B) and (e)(7)(A) which ar guably impose 4 The majorit y disagree s with t his sta tutory analys is and offer s the example of a judge tel ling a law clerk, “In drafti ng this opinion, y ou shall address argume nts X, Y, and Z” t o contend that t he judge’ s di rection is mandatory. I t hink a mo re apt a nalogy woul d be a jud ge tel ling a law clerk, “Y ou are authoriz ed t o grant ti me extensi ons. In granting an extensi on, you shal l conside r X, Y, and Z.” The law clerk c an grant an extensi on, but if he or she deci des to do s o, then the c lerk mu st consi der factors X, Y, and Z.

90 P ACITO V. T RUM P some obligations on the Director. None, however, persuasively counters the overall operation of § 1522. The provisions in subsection (a) merely give direction to the government in developing “policies and stra tegies” and to conduct “periodic assessment” of the program. These are housekeeping good governance measures for when the program operates — hard ly a mandate for the pr ogram’ s continuation. Subsection (d)(2)(B) requires that the program’ s Direc tor take legal and f inancial re sponsibility for unaccompanied refugee children only if such responsibility is “necessary.” Even while using the word “shall,” the subsection drips with defe rence to the executi ve branch and invokes no firm mandate. It also is not clear from t he record if there ar e any un accompan ied refug ee chil dren at issue t o whom plaintif fs c ould claim this sectio n’ s alleged mandate would apply. Similarly, subsection (e)(7)(A) st ates the “Secret ary shal l dev elop and imp lement” p roject s for cash and medi cal supp ort f or refug ees “as n eeded. ” The Dire ctor decides what is neede d. The mete s and bounds of the programs are up to exe cutive discretion: No congressional mandate in sight. When examined in its entirety, the statutory text su pports this conclusion repeatedly: Section 1522 authorizes the executive branch to cra ft programs under its discretion so long as appropriations flow. It does not require that those programs operate. W e and the district court lack jurisdiction. Even if we had it, the program’ s operation is not mandatory. I thus respectfully dissent in part and would re verse the district court’ s injunctions in t heir e ntirety.