National Treasury Employees Union v. Russell T. Vought

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 16, 2025 Decided August 15, 2025
No. 25-5091
NATIONAL TREASURY EMPLOYEES UNION, ET AL.,
APPELLEES
v.
RUSSELL T. VOUGHT, IN HIS OFFICIAL CAPACITY AS ACTING
DIRECTOR OF THE CONSUMER FINANCIAL PROTECTION
BUREAU AND CONSUMER FINANCIAL PROTECTION BUREAU,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:25-cv-00381)
Eric D. McArthur, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellants.
With him on the briefs were Mark R. Freeman, Melissa N.
Patterson, Catherine Padhi, and Kevin J. Kennedy, Attorneys.
Jennifer D. Bennett argued the cause for appellees. With
her on the brief were Julie Wilson, Paras N. Shah, Allison C.
Giles, Deepak Gupta, Robert Friedman, Michael Skocpol,
Gabriel Chess, Wendy Liu, Adina H. Rosenbaum, Julie Wilson,
Paras N. Shah, and Allison C. Giles.

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Ariel Levinson-Waldman was on the brief for amici curiae
42 Nonprofit Veterans, et al. in support of appellees.
Elizabeth B. Wydra and Brianne J. Gorod were on the
brief for amici curiae Current and Former Members of
Congress in support of appellees.
Matthew J. Platkin, Attorney General, Office of the
Attorney General for the State of New Jersey, Brian L.
Schwalb, Attorney General, Office of the Attorney General for
the District of Columbia, Caroline Van Zile, Solicitor General,
Ashwin P. Phatak, Principal Deputy Solicitor General, Letitia
James, Attorney General, Office of the Attorney General for
the State of New York, Barbara D. Underwood, Solicitor
General, Dustin J. Brockner, Assistant Solicitor General,
Kristen K. Mayes, Attorney General, Office of the Attorney
General for the State of Arizona, Philip J. Weiser, Attorney
General, Office of the Attorney General for the State of
Colorado, Kathleen Jennings, Attorney General, Office of the
Attorney General for the State of Delaware, Kwame Raoul,
Attorney General, Office of the Attorney General for the State
of Illinois, Anthony G. Brown, Attorney General, Office of the
Attorney General for the State of Maryland, Dana Nessel,
Attorney General, Office of the Attorney General for the State
of Michigan, Rob Bonta, Attorney General, Office of the
Attorney General for the State of California, William Tong,
Attorney General, Office of the Attorney General for the State
of Connecticut, Anne E. Lopez, Attorney General, Office of the
Attorney General for the State of Hawaii, Aaron M. Frey,
Attorney General, Office of the Attorney General for the State
of Maine, Andrea Joy Campbell, Attorney General, Office of
the Attorney General for the Commonwealth of Massachusetts,
Keith Ellison, Attorney General, Office of the Attorney
General for the State of Minnesota, Aaron D. Ford, Attorney
General, Office of the Attorney General for the State of

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Nevada, Jeff Jackson, Attorney General, Office of the Attorney
General for the State of North Carolina, Peter F. Neronha,
Attorney General, Office of the Attorney General for the State
of Rhode Island, Nicholas W. Brown, Attorney General, Office
of the Attorney General for the State of Washington, Raul
Torrez, Attorney General, Office of the Attorney General for
the State of New Mexico, Dan Reyfield, Attorney General,
Office of the Attorney General for the State of Oregon, Charity
R. Clark, Attorney General, Office of the Attorney General for
the State of Vermont, and Joshua L. Kaul, Attorney General,
Office of the Attorney General for the State of Wisconsin, were
on the brief for amici curiae State of New York, et al. in support
of appellees.
Harold Hongju Koh and Jed W. Clickstein were on the
brief for amici curiae Former Consumer Financial Protection
Bureau Officials in support of appellees.
Before: PILLARD, KATSAS, and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge KATSAS.
Dissenting opinion filed by Circuit Judge PILLARD.
KATSAS, Circuit Judge: To promote the President’s
deregulatory agenda, the Consumer Financial Protection
Bureau undertook a series of actions to substantially downsize
the agency. These actions included terminating employees,
cancelling contracts, declining additional funding, moving to
smaller headquarters, and requiring advance approval for
agency work. The plaintiffs in this case either represent CFPB
employees or use services provided by the agency. They sued
to stop what they describe as a decision to “shut down” the
Bureau. The district court found that agency leadership had
made such a decision and then entered a preliminary injunction
severely restricting agency actions regarding employment,

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contracting, and facilities, among other things. We hold that
the district court lacked jurisdiction to consider the claims
predicated on loss of employment, which must proceed through
the specialized-review scheme established in the Civil Service
Reform Act. And the other plaintiffs’ claims target neither
final agency action reviewable under the Administrative
Procedure Act nor unconstitutional action reviewable in equity.
Accordingly, we vacate the preliminary injunction.
I
A
In 2010, Congress established the Consumer Financial
Protection Bureau to enforce federal laws that protect
consumers of financial products. 12 U.S.C. § 5511(a).
Congress transferred to the CFPB “the authority to administer
18 existing consumer protection statutes,” and it “vested the
Bureau with rulemaking, enforcement, and adjudicatory
authority” over those statutes. CFPB v. Cmty. Fin. Servs. Ass’n
of Am., 601 U.S. 416, 421–22 (2024). Congress authorized the
CFPB to pursue five general objectives: provide timely and
understandable information to consumers, protect consumers
from unfair practices, reduce regulatory burdens, enforce
consumer financial laws consistently, and encourage the
relevant markets to operate transparently and efficiently. 12
U.S.C. § 5511(b).
Congress gave the CFPB broad discretion regarding how
to pursue these goals. For example, the Bureau’s general grant
of rulemaking power is expressly permissive; it states that the
agency “may prescribe rules and issue orders and guidance, as
may be necessary or appropriate to enable the Bureau to
administer and carry out the purposes and objectives of the
Federal consumer financial laws, and to prevent evasions
thereof.” 12 U.S.C. § 5512(b)(1); see also id. § 5531(b) (CFPB

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“may prescribe rules” regarding certain “unfair, deceptive, or
abusive acts or practices”). The Bureau’s enforcement
authority is also discretionary. See id. § 5562 (CFPB “may”
conduct investigations, subpoena witnesses, or demand
documents). So is its adjudicatory authority. Id. § 5563(a)
(CFPB “is authorized to conduct hearings and adjudication
proceedings”).
The CFPB is mostly free to organize its internal affairs as
it wishes. For example, it may establish “general policies …
with respect to all executive and administrative functions,” 12
U.S.C. § 5492(a), including personnel and contracting matters,
id. § 5492(a)(2), (3), (7). The Director also may “fix the
number of, and appoint and direct, all employees of the
Bureau.” Id. § 5493(a)(1)(A). And the Director has
unreviewable discretion to determine how much funding the
Bureau needs to carry out its objectives, subject only to a
statutory cap. Id. § 5497(a)(1)–(2); see id. § 5497(a)(2)(C)
(barring congressional committees from reviewing the
Director’s determination).
Congress did require the CFPB to provide some specific
services to the public. For example, the Bureau must establish
“reasonable procedures to provide a timely response to
consumers” for inquiries or complaints. 12 U.S.C. § 5534(a);
see id. § 5493(b)(3)(A) (requiring toll-free telephone number,
website, and database for consumer complaints). The agency
must prepare reports about interest rates, credit cards, and other
matters. See id. § 5493(b)(1); 15 U.S.C. §§ 1646(a)–(b),
1632(d)(3). It must help compile information about depository
institutions. 12 U.S.C. § 2809(b). And it must have a “Private
Education Loan Ombudsman” to “provide timely assistance to
borrowers of private education loans.” Id. § 5535(a).

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B
In early 2025, the President took several steps to
implement a new deregulatory agenda. On January 20, he
imposed a cross-agency freeze on new regulatory actions. See
Regulatory Freeze Pending Review, 90 Fed. Reg. 8249 (Jan.
20, 2025). On February 26, he imposed a cost-cutting initiative
that required agency heads to scale back contracts, grants, real
estate, and other expenses. See Exec. Order No. 14,222, 90
Fed. Reg. 11095 (Feb. 26, 2025).
These initiatives brought changes to the Bureau. On
Friday, January 31, the President removed the incumbent
CFPB Director and designated Scott Bessent as the agency’s
Acting Director. On Monday, February 3, Bessent instructed
agency employees and contractors to pause most activities
while he evaluated them for “consistency with the goals of the
Administration.” J.A. 110. Bessent made clear, however, that
the pause did not apply to work “expressly approved by the
Acting Director or required by law.” Id. On February 7, the
President designated Russell Vought to replace Bessent as
Acting Director. On February 8, Vought reiterated the pause
on CFPB work, with the same exception for activities
“expressly approved by the Acting Director or required by
law.” Id. at 117. The same day, Vought concluded that
existing funds—which exceeded $700 million—were
“sufficient” for the Bureau to meet its statutory mandates for
the next fiscal quarter. Id. at 123. On February 9, CFPB
leadership decided to close the Bureau’s headquarters for a
week because of protests outside the building. Id. at 105–06,
119. Around the same time, they also decided to cancel the
lease of agency headquarters, which had remained largely
vacant since the COVID pandemic, and to move the Bureau to
smaller headquarters. Id. at 104, 106.

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On February 10, Vought issued a new directive reminding
employees of the office closure and instructing them to “not
perform any work tasks” without prior approval from Chief
Legal Officer Mark Paoletta. J.A. 101. The parties dispute
whether this directive required approval for legally mandated
activities or whether it carried forward the exception from the
February 3 and February 8 emails. In any event, Paoletta did
approve some legally required work, starting on February 10.
See id. at 286–87 (exempting “work to publish the Average
Prime Offer Rate”—a legally required task—“from the stop
work order”).1 And on March 2, Paoletta clarified that
“[e]mployees should be performing work that is required by
law and do not need to seek prior approval to do so.” Id. at
387. In the interim, though, some required work was neglected,
such as maintenance of the consumer-complaint database.
Over the same timeframe, the Bureau also addressed
contract and personnel matters. On February 11, its Chief
Financial Officer instructed component heads to identify which
contracts directly supported statutory obligations. J.A. 416–17.
Agency leadership decided to cancel all contracts in five
components and all but two contracts in a sixth, id. at 288, 407,
though it is unclear how many of those contracts actually were
1 See also, e.g., J.A. 298–300 (approving work related to the
call center, online complaint form, and a required report for
Congress); id. at 306 (approving the Office of Fair Lending’s request
to perform statutory functions); id. at 308 (directing an employee to
attend meetings and perform trainings); id. at 284 (Bureau COO
confirming that work related to the consumer complaint database and
home mortgage disclosure application should continue); id. at 285
(confirming that the COO stated the work stoppage “does not apply
to the … Consumer Resource Center”); id. at 313 (COO approving
the processing of FOIA requests); id. at 326 (COO confirming that
employees “can resume all regular work related to fulfilling statutory
obligations”).

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cancelled, see id. at 131 (plaintiffs’ declaration explaining that
contract cancellations would not take effect for at least thirty
days). On February 19, Paoletta forbade employees from
cancelling any contract “without specific authorization” from
himself or the Acting Director, id. at 654, and at least some
contracts were then reactivated, see id. at 378. As for
personnel, the Bureau terminated 85 probationary employees
and 130 term employees, including the “Student Loan
Ombudsman.” Id. at 421, 648, 650, 950–51. It planned to
implement two Reductions in Force (RIFs), which would have
terminated at least eighty percent of the Bureau’s remaining
workforce. See id. at 649, 953, 1052. It considered placing the
remainder of its employees on administrative leave, unless they
were authorized to perform a work task. See, e.g., id. at 465.
And it decided to eliminate software enabling employees to
work remotely. Id. at 239.
C
Six plaintiffs claim various harms from these actions,
which they characterize as a coordinated effort “to eliminate
the CFPB.” J.A. 44. Two plaintiff organizations—the
National Treasury Employees Union (NTEU) and the CFPB
Employee Association—represent Bureau employees. They
allege that the wholesale termination of their members will
harm the members and cause the organizations to lose revenue.
Three plaintiff organizations—the National Association for the
Advancement of Colored People (NAACP), the National
Consumer Law Center (NCLC), and the Virginia Poverty Law
Center (VPLC)—claim harm from the loss of services provided
by the Bureau. NCLC also alleges that the Bureau cancelled
subscriptions to several of its publications. The final plaintiff,
Ted Steege, alleges that his late wife could not meet with the
Student Loan Ombudsman after that official was fired.

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The plaintiffs brought two claims. First, the government’s
“actions to eliminate” the Bureau “usurp legislative authority
conferred upon Congress by the Constitution.” J.A. 44.
Second, the “actions to suspend or terminate CFPB’s
statutorily mandated activities—including by issuing stop-
work instructions, cancelling contracts, declining and returning
funding, firing employees, and terminating the lease for its
headquarters—constitute final agency action” that is
reviewable under the APA, unlawful, arbitrary, and in excess
of the agency’s authority. Id. at 46–47.2 The plaintiffs asked
the district court to set aside “actions and intended further
actions to dismantle the CFPB, including issuance of stop-work
instructions, cancellation of contracts, declining and returning
funding, reductions in force, firing of employees, and
termination of the lease for its headquarters.” Id. at 47. The
plaintiffs further sought to enjoin the CFPB from issuing stop-
work instructions and to require the agency “to resume
immediately all activities that CFPB is required by statute to
perform.” Id. at 48.
After a two-day evidentiary hearing, the district court
granted a preliminary injunction on March 28. The court found
that the government was “engaged in a concerted, expedited
effort to shut the agency down” and that it had “no intention of
operating the CFPB at all.” See NTEU v. Vought, 774 F. Supp.
3d 1, 58 (D.D.C. 2025). From that premise, the court
concluded that the plaintiffs were likely to prevail on their
separation-of-powers claim, id. at 55–77, and their APA
claims, id. at 77–78. The court identified only two putative
final agency actions undergirding the APA claims: the
February 10 email sent by Vought, id. at 77, and the “wholesale
2 The plaintiffs also challenge the President’s designation of
Vought as the CFPB’s Acting Director. J.A. 45. The district court
did not pass on this claim, so neither do we.

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cessation of activities—the decision to shut down the agency
completely,” id. at 46. Among other things, the preliminary
injunction required the government to reinstate all probationary
and term employees who had been fired after February 10; to
refrain from firing any employee except for cause; to refrain
from instituting any work stoppage; to rescind all contract
terminations issued after February 10; to provide Bureau
employees with “either fully-equipped office space” or the
means to work remotely; and to maintain a toll-free telephone
number, website, and database in order to respond to consumer
complaints. Id. at 85–86.
The government appealed and moved for an emergency
stay. For purposes of the stay motion, it challenged only the
scope of the preliminary injunction. We issued a partial stay
that allowed the CFPB to terminate employees or stop work if
the agency determined, after a particularized assessment, that
the employees or work at issue were unnecessary to the
performance of the Bureau’s statutory duties. NTEU v. Vought,
No. 25-5091, 2025 WL 1721068 (D.C. Cir. Apr. 11, 2025).
Days later, the agency issued a RIF notice to more than
eighty percent of its workforce. J.A. 894. The Bureau
represented that it had made the individualized assessment
required by our partial stay order. Rather than attempt to police
compliance with that requirement, we lifted the partial stay
insofar as it allowed the government to conduct RIFs. NTEU
v. Vought, No. 25-5091, 2025 WL 1721136 (D.C. Cir. Apr. 28,
2025).
II
A preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff is
entitled to such relief.” Winter v. NRDC, 555 U.S. 7, 22 (2008).
To obtain a preliminary injunction, the plaintiff “must establish

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that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an injunction
is in the public interest.” Id. at 20. We have reserved the
question whether a strong showing on one of the Winter factors
may compensate for a weaker showing on another, despite
expressing some skepticism on that point. Sherley v. Sebelius,
644 F.3d 388, 392–93 (D.C. Cir. 2011). Regardless of that
possibility, if a court concludes that a claim fails as a matter of
law—on a point of jurisdiction or merits—then a preliminary
injunction is inappropriate. See United States Ass’n of Reptile
Keepers, Inc. v. Zinke, 852 F.3d 1131, 1135 (D.C. Cir. 2017)
(“When, as here, the ruling under review rests solely on a
premise as to the applicable rule of law, and the facts are
established or of no controlling relevance, we may resolve the
merits even though the appeal is from the entry of a preliminary
injunction.” (cleaned up)); see also, e.g., Munaf v. Geren, 553
U.S. 674, 691–92 (2008); Wrenn v. D.C., 864 F.3d 650, 667
(D.C. Cir. 2017); Arkansas Dairy Co-op Ass’n, Inc. v. USDA,
573 F.3d 815, 832–33 (D.C. Cir. 2009).
Although we review the grant of a preliminary injunction
for abuse of discretion, we review de novo any “underlying
legal conclusions.” CityFed Fin. Corp. v. OTS, 58 F.3d 738,
746 (D.C. Cir. 1995).
III
As always, we start with jurisdiction. Because the district
court granted a preliminary injunction, our appellate
jurisdiction is secure. See 28 U.S.C. § 1292(a)(1). The CFPB
contends that the district court lacked statutory jurisdiction
over the claims of organizations representing its employees and
that none of the other plaintiffs has Article III standing. We
agree with the first contention but disagree with the second.

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A
District courts usually have jurisdiction over claims arising
under federal law, 28 U.S.C. § 1331, but a special statutory
review scheme may displace that jurisdiction. Axon Enter.,
Inc. v. FTC, 598 U.S. 175, 185 (2023). To decide whether such
a scheme displaces section 1331, we consider two questions.
First, we ask whether a preclusive intent is “fairly discernible
in the statutory scheme.” Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 207 (1994) (cleaned up). Second, we ask
whether the claims at issue “are of the type Congress intended
to be reviewed within” the special scheme. Id. at 212.
The injuries alleged by NTEU and the CFPB Employee
Association flow from their members’ loss of employment.
NTEU represents agency employees who have already been
fired or may soon be fired, which will harm the employees and
decrease NTEU’s revenue. The Employee Association
likewise represents such employees. These plaintiffs thus seek
to redress injuries from agency decisions to fire employees.
But a specialized-review scheme governs such claims and ousts
the district courts of their arising-under jurisdiction.
The Civil Service Reform Act, 5 U.S.C. § 1101 et seq.,
which includes the Federal Service Labor-Management
Relations Statute, comprehensively “regulates virtually every
aspect of federal employment.” Nyunt v. Chairman, Broad. Bd.
of Governors, 589 F.3d 445, 448 (D.C. Cir. 2009). Through it,
Congress “carefully constructed a system for review and
resolution of federal employment disputes, intentionally
providing—and intentionally not providing—particular forums
and procedures for particular kinds of claims.” Filebark v.
Dep’t of Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009). The
CSRA permits federal employees to seek review of adverse
personnel actions in the Merit Systems Protection Board

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(MSPB), which may grant relief including reinstatement,
backpay, and attorney’s fees. See 5 U.S.C. §§ 7701(a),
1204(a)(2), 7701(g); 5 C.F.R. § 351.901. MSPB decisions in
turn are reviewable in the Federal Circuit. See 5 U.S.C.
§ 7703(a)(1), (b)(1). Similarly, the FSLMRS provides for the
adjudication of federal labor disputes before the Federal Labor
Relations Authority, which also may order reinstatement with
backpay. See id. §§ 7105(a)(2)(G), 7116(a), 7118. Its
decisions are reviewable in the courts of appeals. Id. § 7123(a),
(c). For covered claims, this scheme is “exclusive.” Elgin v.
Dep’t of Treasury, 567 U.S. 1, 5 (2012); see AFGE v. Trump,
929 F.3d 748, 755 (D.C. Cir. 2019).
The organizations contend that their claims, though keyed
to adverse employment actions taken against CFPB employees,
fall outside the CSRA. “Claims will be found to fall outside of
the scope of a special statutory scheme in only limited
circumstances, when (1) a finding of preclusion might
foreclose all meaningful judicial review; (2) the claims are
wholly collateral to the statutory review provisions; and (3) the
claims are beyond the expertise of the agency.” AFGE, 929
F.3d at 755 (cleaned up). Here, none of these considerations
applies.
First, a finding of preclusion would not foreclose
meaningful judicial review. The organizations’ injuries arise
from the termination of their members, which the MSPB and
FLRA may remedy by ordering reinstatement with backpay.
See 5 U.S.C. §§ 1204(a)(2), 7118(a)(7)(C). The organizations
object that the MSPB or FLRA might not reinstate employees
to positions that have been abolished. But they cite only one
decision indicating that, as a matter of discretion, the MSPB
does not typically reinstate employees to abolished positions
when other comparable jobs are available. See Bullock v. Dep’t
of Air Force, 80 M.S.P.R. 361 (M.S.P.B. 1998). In any event,

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the Supreme Court has held that the CSRA provides the
exclusive means for federal employees to obtain judicial
review of adverse personnel actions even in circumstances
where, unlike here, the CSRA itself forecloses review. See
United States v. Fausto, 484 U.S. 439, 447 (1988).
Second, the organizations’ claims are not wholly collateral
to the CSRA scheme. Claims that “seek to reverse the removal
decisions” at issue are not wholly collateral to the CSRA, as
the Supreme Court held in Elgin. See 567 U.S. at 22 (“A
challenge to removal is precisely the type of personnel action
regularly adjudicated by the MSPB and the Federal Circuit
within the CSRA scheme.”). The organizations seek to obtain
reinstatement for members already terminated and to prevent
the CFPB from terminating other members in the future, which
is precisely the relief afforded through the CSRA.
Third, the organizations’ claims are not beyond the
expertise of the MSPB and the FLRA. As explained above, the
claims seek redress for allegedly unlawful terminations—the
heartland of CSRA coverage. The organizations object that
these agencies have no expertise regarding broad disputes
about agency shutdowns. In Elgin, however, the Supreme
Court held that the CSRA review scheme is exclusive even
where the harmed employee contends that a governing “federal
statute is unconstitutional.” 567 U.S. at 5. The same rationale
controls here, where the claim is that an agency has violated
the Constitution by disregarding federal statutes.3
3 It is unclear whether the CFPB Employees Association, which
is neither a federal employee nor a labor union, could itself invoke
the CSRA to obtain reinstatement for its members. But assuming it
cannot, its “exclusion … from the provisions establishing
administrative and judicial review for personnel action” is no reason
to permit it to seek judicial review of personnel actions under other

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In sum, the CSRA precludes district-court jurisdiction
over the claims of the NTEU and CFPB Employee Association.
B
The remaining four plaintiffs do not seek redress for
employment-related injuries, but the government contends that
they lack constitutional standing under Article III. In assessing
the sufficiency of standing allegations, we take the plaintiffs’
merits theory as a given. Tanner-Brown v. Haaland, 105 F.4th
437, 444 (D.C. Cir. 2024). Here, that means we assume that
CFPB leadership was unlawfully attempting to dismantle the
Bureau. For standing purposes, the question is whether these
plaintiffs have shown that dismantling the Bureau would cause
them to suffer a concrete, particularized injury that a favorable
decision would likely redress. See TransUnion LLC v.
Ramirez, 594 U.S. 413, 423 (2021).
An organization can establish standing based on an injury
to one or more of its members. Students for Fair Admissions,
Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181,
199 (2023) (SFFA). We call this kind of standing associational
standing. See, e.g., Sierra Club v. FERC, 827 F.3d 59, 65 (D.C.
Cir. 2016). “To invoke it, an organization must demonstrate
that (a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are germane
to the organization’s purpose; and (c) neither the claim asserted
provisions. Fausto, 484 U.S. at 455. In Block v. Community
Nutrition Institute, 467 U.S. 340 (1984), the Supreme Court held that
a statute creating a special statutory review scheme for challenges to
regulatory action brought by dairy producers and handlers—but not
consumers—foreclosed judicial review for claims by consumers. Id.
at 347. The same reasoning applies here; if employees cannot end-
run the CSRA’s reticulated scheme of administrative and judicial
review, then neither can organizations representing employees.

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nor the relief requested requires the participation of individual
members in the lawsuit.” SFFA, 600 U.S. at 199 (cleaned up).
The NAACP meets these requirements. It is a membership
organization that works to “accelerate the well-being,
education, and economic security of Black people and all
persons of color.” J.A. 57. In furtherance of that mission, it
was “actively working” with the CFPB “to address predatory
practices for NAACP members who were victims of the Los
Angeles wildfires.” Id. On the NAACP’s telling, the CFPB
promised to send it educational materials for NAACP members
but “did not do so because of the shutdown.” Id. at 58. As a
result, at least one NAACP member, Juanita West-Tillman,
was denied access to these materials, which have at least some
monetary value. See id. at 217–18. She therefore suffered a
concrete injury. And her injury would likely be redressed by
an injunction, which would enable CFPB staff to proceed with
its plans to assist wildfire victims. Her injury also relates to the
financial education of NAACP members, which is germane to
the NAACP’s purpose, and there is no reason this suit requires
her individual participation. The NAACP thus has
associational standing.
Because the NAACP’s claims suffice to tee up the
dispositive questions that we address below, we need not
consider whether the other plaintiffs have Article III standing.
Biden v. Nebraska, 600 U.S. 477, 489 (2023).
IV
This case arises from several actions taken by CFPB
leadership to downsize the agency. They laid off employees,
cancelled contracts, decided to move to smaller headquarters,
declined additional funding, and subjected work to an advance-
approval requirement. In the ordinary course, the plaintiffs
here could challenge many of these actions in court. As

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explained above, aggrieved employees (like members of
NTEU and the CFPB Employee Association) could challenge
their terminations before the MSPB or the FLRA. Aggrieved
service providers (like the NCLC) could claim breaches of
contract in the Court of Federal Claims. See 28 U.S.C. § 1491.
And aggrieved consumers of services that the CFPB must
provide to the public (like the NAACP, NCLC, and VPLC)
could file APA actions alleging that the service has been
unlawfully withheld or unreasonably delayed. See 5 U.S.C.
§ 706(1). Such challenges would target specific agency action
or inaction that is alleged to be unlawful and to harm specific
individual plaintiffs. And the courts, if they set aside the
specific action alleged to be unlawful, or compelled the specific
action alleged to be unlawfully withheld, could redress the
specific injuries of individual plaintiffs.
This case is not constructed like that. Instead, the plaintiffs
seek to challenge what they describe as a single, overarching
decision to shut down the CFPB, which they infer from the
various discrete actions noted above. To remedy that asserted
decision, they seek pervasive judicial control over the day-to-
day management of the agency, including decisions about how
many employees the agency may terminate, how many
contracts it may cancel, how it may approve work, which
buildings it must occupy, and how employees will complete
remote work. Furthermore, the plaintiffs urge all this despite
the lack of any causal connection between many of the specific
agency actions alleged to comprise the shutdown (for example,
not providing reports regarding credit cards) and the specific
injuries alleged by these plaintiffs (for example, Mr. Steege’s
ongoing difficulty in addressing his late wife’s student loans).
As we now explain, this challenge is not viable. It cannot
be brought under the APA because that statute provides a cause
of action to challenge discrete, final agency action, which the

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claims here do not target. And it cannot be brought in equity
because the claims here neither raise constitutional questions
nor satisfy the stringent prerequisites for ultra vires review.
V
The Administrative Procedure Act provides the standard
means for obtaining judicial review of federal agency action.
Yet the plaintiffs and the district court downplay it. The district
court treated the APA claims as an afterthought, warranting
two short paragraphs of analysis after an exhaustive, 23-page
discussion of what it described as non-APA “ultra vires and
constitutional claims.” NTEU, 774 F. Supp. 3d at 55–78.
Likewise, the plaintiffs lead with a contention that the
Constitution itself confers an implied right of action to
challenge what they describe as separation-of-powers
violations. The court and the plaintiffs have good reason to be
skittish about the APA claims here.
A
The APA cabins the timing, focus, and intensiveness of
judicial review of federal agency action. It requires the
plaintiff to target specific agency action that has caused him an
injury. It requires that action to be final, ripe for review, and
discrete. And it does not permit the courts to superintend how
an agency carries out its broad statutory responsibilities.
1
By its terms, the APA structures judicial review around
“agency action” that harms the plaintiff and, unless another
statute provides otherwise, around such “final” agency action.
It provides that a person “suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to

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judicial review.” 5 U.S.C. § 702. It permits judicial review of
“[a]gency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court.”
Id. § 704. And it instructs reviewing courts to “compel agency
action unlawfully withheld or unreasonably delayed” or to “set
aside agency action” that is arbitrary or otherwise unlawful. Id.
§ 706(1), (2). The APA defines “agency action” to include “the
whole or a part of an agency rule, order, license, sanction,
relief, or the equivalent or denial thereof, or failure to act.” Id.
§ 551(13); see also id. § 701(b)(2) (same definition).
To be reviewable through the APA, agency action must be
final and ripe for review. See 5 U.S.C. § 704 (finality); Abbott
Laboratories v. Gardner, 387 U.S. 136, 148 (1967) (ripeness).
To be final, agency action must “mark the consummation of
the agency’s decisionmaking process,” Bennett v. Spear, 520
U.S. 154, 178 (1997) (cleaned up), and must impose “direct and
appreciable legal consequences” on the plaintiff, Army Corps
of Eng’rs v. Hawkes Co., 578 U.S. 590, 598 (2016) (quoting
Bennett, 520 U.S. at 178). If an action affects the challenger’s
rights only “on the contingency of future administrative
action,” it is not final. DRG Funding Corp. v. Sec’y of Hous.
& Urb. Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996) (quoting
Rochester Tel. Corp. v. United States, 307 U.S. 125, 130
(1939)); see also Franklin v. Massachusetts, 505 U.S. 788, 797
(1992) (action must “directly affect the parties”). In assessing
finality, we evaluate agency action relative to the
“decisionmaking processes set out in [the] agency’s governing
statutes and regulations.” Soundboard Ass’n v. FTC, 888 F.3d
1261, 1267 (D.C. Cir. 2018). And we may consider “post-
guidance events to determine whether the agency has applied
the guidance as if it were binding on regulated parties.” Nat’l
Mining Ass’n v. McCarthy, 758 F.3d 243, 253 (D.C. Cir. 2014)
(Kavanaugh, J.). The ripeness inquiry is similar: “[It] requires
us to consider ‘the fitness of the issues for judicial review and

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the hardship to the parties of withholding court consideration.’”
Village of Bensenville v. FAA, 376 F.3d 1114, 1119 (D.C. Cir.
2004) (quoting Abbott Laboratories, 387 U.S. at 149). An
action is ripe for review only if it has caused, or threatens,
direct and immediate harm to the plaintiff. Nat’l Ass’n of Home
Builders v. Army Corps of Eng’rs, 417 F.3d 1272, 1281, 1283
(D.C. Cir. 2005).
To illustrate these principles, consider the difference
between a legislative rule and an agency plan. A legislative
rule is typically reviewable. It is formally promulgated at the
end of a defined process for the adoption of specific legal text.
5 U.S.C. § 553. And it binds both the agency and regulated
parties, who must conform their behavior to the rule or else face
legal penalties. See Abbott Laboratories, 387 U.S. at 151
(regulated parties); United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260, 267 (1954) (agency). These
characteristics often make legislative rules an appropriate
target for APA review, Abbott Laboratories, 387 U.S. at 150,
unless the rule is unclear in its application or its immediate
effects are modest, see Toilet Goods Ass’n v. Gardner, 387
U.S. 158, 164–65 (1967). In contrast, an agency plan is
unreviewable insofar as it reflects only a nonbinding statement
of something the agency intends to do in the future. See Fund
for Animals, Inc. v. Bureau of Land Mgmt., 460 F.3d 13, 18–22
(D.C. Cir. 2006). Because such a plan has no immediate effect,
a plaintiff cannot challenge the plan itself but instead must
await further agency actions implementing it. See id. at 22.
Finality and ripeness standards are flexible, so informal
guidance documents sometimes are reviewable. See Cal.
Cmtys. Against Toxics v. EPA, 934 F.3d 627, 634–36 (D.C. Cir.
2019). But to be reviewable, such items must impose standards
that the agency treats as binding. See, e.g., id. at 638–40; Nat’l
Mining Ass’n, 758 F.3d at 252 (“The most important factor
concerns the actual legal effect (or lack thereof) of the agency

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action in question on regulated entities.”); Nat’l Env’t Dev.
Ass’n’s Clean Air Project v. EPA, 752 F.3d 999, 1007 (D.C.
Cir. 2014) (internal directive “provide[d] firm guidance” that
enforcement officials “relied on”).
2
In Lujan v. National Wildlife Federation, 497 U.S. 871
(1990), the Supreme Court held that “agency action” under the
APA must also be “specific.” See id. at 894. The plaintiffs
there alleged that the Bureau of Land Management (BLM)
made various land-use decisions that violated the governing
statutes. See id. at 879. Rather than challenge any of these
actions individually, the plaintiffs sought to challenge all of
them together, grouped under what they described as a “land
withdrawal review program.” Id. at 890. Rejecting the
challenge, the Supreme Court held that the APA requires a
plaintiff to “direct its attack against some particular ‘agency
action’ that causes it harm.” Id. at 891 (emphasis added). The
Court reasoned that the “land withdrawal review program” was
not “derived from any authoritative text” in the governing
statutes or regulations and did not “refer to a single BLM order
or regulation, or even to a completed universe of particular
BLM orders and regulations.” Id. at 890. Instead, it was
simply shorthand for the “continuing (and thus constantly
changing) operations of the BLM” in administering public
lands, and was no more a “final agency action” than “a
‘weapons procurement program’ of the Department of Defense
or a ‘drug interdiction program’ of the Drug Enforcement
Administration,” neither of which would themselves be
reviewable. Id. The Court stressed that any “flaws in the entire
‘program’—consisting principally of the many individual
actions referenced in the complaint, and presumably action yet
to be taken as well—cannot be laid before the courts for
wholesale correction under the APA, simply because one of

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them that is ripe for review adversely affects” one of the
plaintiffs. Id. at 893. To the contrary, the APA requires a
“case-by-case approach” targeting “specific ‘final agency
action,’” rather than “more sweeping actions” seeking
“systemic improvement” at a “higher level of generality.” Id.
at 894; see also id. at 891 (APA does not authorize courts to
consider “wholesale improvement” or “programmatic
improvements” in agency administration).
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55
(2004) (SUWA), elaborated on these principles in the context
of APA actions under 5 U.S.C. § 706(1) to “compel agency
action unlawfully withheld.” The Court made clear that the
withheld action must be a “circumscribed, discrete agency
action[],” 542 U.S. at 62, which “precludes the kind of broad
programmatic attack” rejected in National Wildlife, id. at 64.
And consistent with traditional mandamus standards, the
compelled action must also be one that the agency is “legally
required” to take, id. at 63, which “rules out judicial direction
of even discrete agency action that is not demanded by law,”
id. at 65. Combining both principles, “a claim under § 706(1)
can proceed only where a plaintiff asserts that an agency failed
to take a discrete agency action that it is required to take.” Id.
at 64. SUWA involved a statute requiring the BLM to manage
certain lands “in a manner so as not to impair the suitability of
such areas for preservation as wilderness.” 43 U.S.C.
§ 1782(c). The Court described this statute as “mandatory as
to the object to be achieved,” but still leaving the agency “a
great deal of discretion in deciding how to achieve it.” 542
U.S. at 66. The plaintiffs contended that BLM was violating
the statute. Id. at 65. But instead of identifying any discrete
action that BLM allegedly was taking or withholding
unlawfully, they sought an order simply compelling BLM to
comply with the non-impairment mandate. See id. at 66.
Rejecting that claim, the Court explained that the APA does not

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authorize general orders compelling compliance with such
“broad statutory mandates.” Id. Orders like that would require
the courts, in determining whether “compliance was achieved,”
to become enmeshed in “day-to-day agency management.” Id.
at 66–67. And the APA does not permit “pervasive oversight
by federal courts over the manner and pace of agency
compliance with such congressional directives.” Id. at 67.
In Fund for Animals, this Court held that National Wildlife
and SUWA barred APA review of a BLM “plan” to achieve a
mandatory statutory goal of protecting wild horses. See 460
F.3d at 15, 20–22. The “plan” consisted of “many individual
actions,” some of which were not themselves legally required.
See id. at 20–21 (cleaned up). For such general plans, we
concluded, “it is only specific actions implementing the plans
that are subject to judicial scrutiny.” Id. at 21; see also City of
New York v. DoD, 913 F.3d 423, 432 (4th Cir. 2019) (National
Wildlife and SUWA limit review to “only those acts that are
specific enough to avoid entangling the judiciary in
programmatic oversight, clear enough to avoid substituting
judicial judgments for those of the executive branch, and
substantial enough to prevent an incursion into internal agency
management”).
* * * *
These requirements—agency action, finality, ripeness, and
discreteness—reflect that the APA does not make federal
courts “roving commissions” assigned to pass on how well
federal agencies are satisfying their statutory obligations.
Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973). Rather,
a court may intervene only when a specific unlawful action
harms the plaintiff, and only to the extent necessary to set aside
that action. By avoiding premature adjudication and narrowing
the scope of judicial review, these requirements “protect

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agencies from undue judicial interference with their lawful
discretion[] and … avoid judicial entanglement in abstract
policy disagreements which courts lack both expertise and
information to resolve.” SUWA, 542 U.S. at 66.4
B
The plaintiffs here complain about a slew of different
CFPB “actions” that include “issuing stop-work instructions,
cancelling contracts, declining and returning funding, firing
employees, and terminating the lease for its headquarters.”
J.A. 46–47. But they point to only two actions that allegedly
satisfy the finality, ripeness, and discreteness requirements
summarized above. One of them is an email asking employees
to obtain approval before performing work. Another is an
4 Two other APA limitations reinforce these points. First, APA
review normally is based on an administrative record, obviating the
need for intrusive discovery into internal agency processes. See, e.g.,
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549
(1978); Camp v. Pitts, 411 U.S. 138, 142–43 (1973) (per curiam).
That limit is inconsistent with a focus on putative agency action that
requires a multi-day evidentiary hearing just to identify. Second,
once the reviewing court corrects a discrete legal error, it normally
must remand rather than retain jurisdiction to implement a complex
remedial decree. See, e.g., Calcutt v. FDIC, 598 U.S. 623, 629
(2023) (“the function of the reviewing court ends when an error of
law is laid bare” (quoting FPC v. Idaho Power Co., 344 U.S. 17, 20
(1952))). That limit is inconsistent with programmatic review of
broad agency management.

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asserted decision, inferred from the various discrete actions
mentioned, to shut down the Bureau.
1
On February 10, the Acting Director of the CFPB emailed
agency staff. In its entirety, the email stated:
As you have been informed by the Chief Operating
Officer in an email yesterday, the Bureau’s DC
headquarters building is closed this week. Employees
should not come into the office. Please do not perform
any work tasks. If there are any urgent matters, please
alert me through Mark Paoletta, Chief Legal Officer,
to get approval in writing before performing any work
task. His email is [redacted]. Otherwise, employees
should stand down from performing any work task.
Thank you for your attention on this matter.
J.A. 101.
This email does not qualify as final agency action. To
begin with, it did not mark the consummation of any agency
decision-making process, much less a defined process for
rulemaking, adjudication, or anything equivalent. The email
was not formally promulgated, much less published in the Code
of Federal Regulations, the Federal Register, or any official
agency records. In context, it reflected a new presidential
Administration and a new Acting Director trying to assess all
agency activities. And it linked the prior-approval requirement
to a short-term exigency requiring the temporary closure of
agency headquarters. Most importantly, the email did not
definitively decide anything. Instead, it merely directed
employees to obtain advance approval before performing work,
while remaining silent on legally mandated work and leaving
the Chief Legal Officer with discretion to approve it.

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Likewise, the email triggered no appreciable legal
consequences for employees, contractors, regulated parties, or
members of the public. It neither terminated any employees
nor cancelled any contracts. It did not purport to prohibit any
statutorily required tasks. Because the Chief Legal Officer did
approve many tasks upon request, it is difficult to see how the
email affected the plaintiffs even practically, much less how it
directly changed their legal rights. See note 1, supra. Finally,
less than three weeks after that email, the Chief Legal Officer
sent another email clarifying that “[e]mployees should be
performing work that is required by law and do not need to seek
prior approval to do so.” J.A. 387. So the February 10 email
by its terms did not require legally mandatory work to be
abandoned, and the CFPB did not apply the email “as if it were
binding” on that question. See Nat’l Mining Ass’n, 758 F.3d at
253.
The plaintiffs note that staff directives and other informal
kinds of agency action are sometimes reviewable under the
APA. That is true, but only if the agency treats the action as
binding, and only if the action has appreciable legal
consequences for the plaintiff. See Cal. Cmtys. Against Toxics,
934 F.3d at 638–40; Nat’l Mining Ass’n, 758 F.3d at 252. The
authorities cited by the plaintiffs confirm as much. The internal
directive in National Environmental Development Association
“provide[d] firm guidance to enforcement officials,” who
“relied on” it in making permitting decisions throughout the
country. See 752 F.3d at 1007. Likewise, the letter in Ciba-
Geigy Corp. v. EPA, 801 F.2d 430 (D.C. Cir. 1986), informed
a regulated party of the agency’s considered view that the party
had no right to a hearing it desired. See id. at 436–38. The
February 10 email, in requiring advance approval to perform
work, does nothing so firm or consequential.

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2
We turn next to the putative shutdown decision. The
plaintiffs point to no regulation, order, document, email, or
other statement, written or oral, purporting to shut down the
CFPB. Instead, they infer such an overarching decision from
various discrete “actions” taken by agency leadership to
downsize the Bureau, “including by issuing stop-work
instructions, cancelling contracts, declining and returning
funding, firing employees, and terminating the lease for its
headquarters.” J.A. 46–47. The district court found a “decision
to shut down the agency completely” and equated it to a
“wholesale cessation” of CFPB activities. NTEU, 774 F. Supp.
3d at 46.
For its part, the government does not claim the power to
“shut down” the CFPB. Nor could it. Congressional statutes
create the Bureau and define its powers and duties. Agency
officials cannot wipe those provisions off the books.
Moreover, as explained above, many CFPB functions are
mandatory; for example, the Bureau must respond to consumer
complaints, disseminate various reports, and assist individuals
with student loans. The agency does not suggest that it could
lawfully abandon these various responsibilities. Finally, while
the Bureau’s rulemaking, enforcement, and adjudicatory
powers are discretionary, we assume that it must engage in
some regulation of, say, the Nation’s largest banks. See
Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985).
Instead, the government disputes that it undertook to shut
down the CFPB. First, it contends that agency leadership at all
times intended for the Bureau to remain open and to perform
all of its statutorily required functions. Second, it contends that
no decision to shut down the Bureau was ever reduced to final,
reviewable agency action. Questions of what CFPB leadership

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wanted or intended to do at any particular point in time are
factual, and we are reluctant to conclude that the district court’s
factual assessments were clearly erroneous. But the question
of what counts as final agency action reviewable under the
APA is a legal one, which we decide without deference to the
district court. See, e.g., Soundboard Ass’n, 888 F.3d at 1267–
74; Nat’l Mining, 758 F.3d at 250–53. On that question, we
agree with the government that there was no reviewable
decision to shut down the CFPB.
First, the APA does not authorize review of “abstract
decision[s] apart from specific agency action, as defined in the
APA.” Biden v. Texas, 597 U.S. 785, 809 (2022). In Biden v.
Texas, the Secretary of Homeland Security issued a June 1,
2021 memorandum “officially terminating” a discretionary
immigration program known as the Migrant Protection
Protocols. See id. at 793. After a court set aside that
termination and remanded for further consideration, the
Secretary again formally terminated the program on October
29, 2021, this time with some forty pages of reasoning. See id.
at 795–96. The court of appeals treated the second termination
not as a separately reviewable agency action, but as a mere
“post hoc rationalization[]” for what it described as a
“Termination Decision” independent of the June 1 and
October 29 memoranda. See id. at 796–97, 809–10. The
Supreme Court reversed. Quoting from the APA’s definition
of a “rule,” it held that the court of appeals had erred “by
postulating the existence of an agency decision wholly apart
from any ‘agency statement of general or particular
applicability … designed to implement’ that decision.” Id. at
809 (quoting 5 U.S.C. § 551(4)).
Here, too, there is no such “action” as defined in the
APA—i.e., no such “rule, order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act,” 5 U.S.C.

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§ 551(13). The plaintiffs suggest that the putative shutdown
decision qualifies as a rule, which would require some “agency
statement” designed “to implement, interpret, or prescribe law
or policy.” Id. § 551(4) (emphasis added). The plaintiffs point
to no such statement, formal or informal, written or oral. Nor
do they suggest that the putative shutdown decision is anything
like an “order, license, sanction, [or] relief.” These too are
defined terms, see id. § 551(6), (8), (10), (11), and a decision
to shut down an agency would not satisfy any of the definitions.
In sum, the shutdown decision posited here, like the
Termination Decision posited in Biden v. Texas, is an abstract
decision “wholly apart from” any “specific agency action, as
defined in the APA.” 597 U.S. at 809.5
5 The dissent responds that section 551(13)’s definition of
“agency action” encompasses “comprehensively every manner in
which an agency may exercise its power.” Post at 22, 45 (quoting
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 478 (2001)). But
American Trucking involved only a question about finality, not
whether there was “agency action” to begin with. See 531 U.S. at
478–79. Moreover, in SUWA, the Court looked to the specific
defined terms embedded in section 551(13)—“rule, order, license,
sanction, relief, or the equivalent or denial thereof”—to limit the
scope of what counts as “agency action” under the APA. See 542
U.S. at 62–63. Likewise, in Biden v. Texas, the Court looked to the
specific definition of an APA “rule”—an “agency statement of
general or particular applicability … designed to implement” a
decision—to hold that an alleged abstract decision to terminate an
agency program, distinct from the one announced by memorandum,
was not “agency action” under the APA. See 597 U.S. at 809–10.
We too “have long recognized that the term [agency action] is not so
all-encompassing as to authorize us to exercise judicial review over
everything done by an administrative agency.” Indep. Equip.
Dealers Ass’n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004) (cleaned
up). For example, agencies do many things “in anticipation of”
taking “agency action,” such as making budget requests. Fund for

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Second, the putative shutdown decision was not final
agency action. No such decision by itself effected the
termination of any employees or the cancellation of any
contracts. To the contrary, as the CFPB attempted to downsize,
it had to undertake separate, discrete actions to lay off workers
and cancel contracts—actions that, had they not been
preliminarily enjoined, would have been reviewable in the
MSPB or the Court of Federal Claims. Nor did the posited
shutdown prohibit any legally required work. As explained
above, CFPB transitional leadership made a handful of
statements addressing what work employees could do during
the initial days of the new presidential Administration. While
these statements all required prior approval to perform work,
three of them expressly excepted legally required work, J.A.
110 (Bessent on Feb. 3); id. at 117 (Vought on Feb. 8); id. at
387 (Paoletta on Mar. 2), while one of them expressly
empowered the Chief Legal Officer to approve work, id. at 101
(Vought on Feb. 10). And the Chief Legal Officer did, in fact,
Animals, Inc., 460 F.3d at 19–20. A budget request “may serve as a
useful planning document, but it is not a ‘rule,’” id. at 20, because it
is not a “statement … designed to implement, interpret, or prescribe
law or policy,” 5 U.S.C. § 551(4). Neither are an agency director’s
non-public, unrecorded decisions.
The dissent further contends that the Acting Director’s alleged
unrecorded decision to shut down the Bureau was “the equivalent”
of a rule. Post at 43–44 (quoting 5 U.S.C. § 551(13)). But again, a
“rule” is an “agency statement.” 5 U.S.C. § 551(4) (emphasis
added). A “statement” is something that one says or writes, usually
to make something known to others. See Statement, Webster’s New
International Dictionary of the English Language (2d ed. 1945) (“Act
of stating, reciting, or presenting, orally or on paper”); Present,
Webster’s New International Dictionary of the English Language (2d
ed. 1945) (“to bring to anyone’s attention or cognizance … to show;
display; set forth; describe”). Unexpressed decisions are the
opposite of, not something “equivalent” to, such a “statement.”

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approve much legally required work. So there was neither a
definitive agency decision to stop mandatory work nor a direct
and appreciable impact on the rights of the plaintiffs.
Third, the posited shutdown decision is insufficiently
discrete to qualify as “agency action.” To begin with, no statute
or regulation authorizes the CFPB to shut itself down, so the
posited decision is not “derived from any authoritative text”
that might help structure judicial review. See Nat’l Wildlife
Fed’n, 497 U.S. at 890. Nor does the posited shutdown
decision “refer to a single [CFPB] order or regulation, or even
to a completed universe of particular [CFPB] orders and
regulations.” See id. Instead, it is the plaintiffs’ way of
referring to a constellation of then-ongoing actions—the
February 10 email, firing employees, cancelling contracts,
declining additional funding, and terminating the lease for the
Bureau’s current headquarters. Rather than seeking to
challenge any of these discrete decisions that may have caused
them harm, the plaintiffs seek to dress up these “many
individual actions” as a single decision in order to challenge all
of them at once, which is exactly what National Wildlife
prevents. See id. at 893.
Fourth, the discreteness problem is made worse by the
open-ended nature of the legal duties that the plaintiffs seek to
enforce. Essentially, they seek an order compelling the CFPB
to keep providing its mandatory services. See Oral Arg. Tr.
48–50 (proposing injunction barring the government from
“try[ing] to shut down the agency”). But while the statute
specifies various services that the Bureau must provide, it gives
the agency “a great deal of discretion in deciding how” to
provide them. SUWA, 542 U.S. at 66 (emphasis added). For
example, how many employees must the Bureau have to ensure
adequately functioning offices to process consumer
complaints, disseminate reports, and afford student-loan

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assistance? Which contracts are essential for achieving those
objectives? How much funding is necessary for doing so?
Congress gave the Bureau discretion to make decisions like
these. See 12 U.S.C. § 5493(a)(1)(A) (“The Director may fix
the number of … employees of the Bureau.”); id. § 5497(a)(1)
(Director shall determine the funding “reasonably necessary to
carry out the authorities of the Bureau”). An order requiring
the Bureau to retain specified levels of employment,
contracting, funding, and the like would run afoul of SUWA’s
prohibition of “judicial direction of even discrete agency action
that is not demanded by law.” 542 U.S. at 65. And any
“general” order merely “compelling compliance with broad
statutory mandates” would present essentially the same
problem: The courts “would necessarily be empowered” to
“determine whether compliance was achieved—which would
mean that it would ultimately become the task of the
supervising court, rather than the agency, to work out
compliance with the broad statutory mandate, injecting the
judge into day-to-day agency management.” Id. at 66–67.
We faced exactly this problem in considering the
government’s motion for a stay pending appeal. Because the
government then challenged only the scope of the preliminary
injunction, we were presented with a dilemma that proved
insoluble: Enjoin specific activity like the termination of
agency employees, as the preliminary injunction had done,
which would restrict a wide range of activity that the agency
may lawfully undertake. Or, alternatively, craft a follow-the-
law injunction requiring the Bureau to retain enough
employees to meet its statutory obligations. Our partial stay
order tried the latter course, and it immediately embroiled the
courts in compliance issues about how many employees were

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necessary—a determination that the Judicial Branch is neither
authorized nor competent to make.6
Finally, the challenge to the posited shutdown decision is
unripe. For starters, the issues are not fit for review. As
explained above, the plaintiffs point to no definitive statement
regarding an agency shutdown but seek to infer one from
various specific acts to downsize. Because the exact scope of
the putative shutdown is thus unclear, judicial review “is likely
to stand on a much surer footing in the context of a specific
application.” Toilet Goods Ass’n, 387 U.S. at 164. Moreover,
agency consideration remained ongoing, which means that
“judicial intervention would inappropriately interfere with
further administrative action.” Ohio Forestry Ass’n. v. Sierra
Club, 523 U.S. 726, 733 (1998); see also Texas v. United
States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for
adjudication if it rests upon contingent future events that may
not occur as anticipated, or indeed may not occur at all.”
(cleaned up)). Even if we assume, as the district court found,
that interim CFPB leadership at one point made an abstract
6 The dissent contends that SUWA has “little to say regarding
the merits of Plaintiffs’ section 706(2) challenge” to set aside agency
action because SUWA “is a section 706(1) case” to compel agency
action. Post at 35. But SUWA’s analysis turned on the fact that
section 706(1) “insist[s] upon an ‘agency action,’” 542 U.S. at 62, as
does section 706(2). Moreover, SUWA expressly built on National
Wildlife, which construed the phrase “agency action” in a section
706(2) case. See id. at 64–65. And SUWA’s concerns about overly
intrusive APA remedies do not fall away merely because a plaintiff
sues under section 706(2). See id. at 67 (“The prospect of pervasive
oversight by federal courts over the manner and pace of agency
compliance with such congressional directives is not contemplated
by the APA.” (emphasis added)). The concerns apply equally here,
where the plaintiffs ask us to enjoin the Bureau’s putative decision
not to meet its statutory responsibilities by issuing what is, in effect,
a general order compelling the agency to meet them.

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decision to shut down the Bureau, see NTEU, 774 F. Supp. 3d
at 58–69, this decision was not final. Instead, the leadership
had an opportunity to change course before the decision
resulted in the denial of any service. And the Bureau did
change course—it has reactivated certain contracts, J.A. 663;
refined its RIF plans, id. at 758; and issued a directive to
“ensure that everyone is carrying out any statutorily required
work,” id. at 387. Under these circumstances, immediate
judicial review would deny the Bureau “an opportunity to
correct its own mistakes.” FTC v. Standard Oil Co., 449 U.S.
232, 242 (1980). In sum, regularly moving targets do not raise
issues fit for review. 7
Moreover, the plaintiffs will suffer no unusual hardship
from postponing review. Unlike in cases allowing pre-
enforcement review, the actions challenged here do not require
them “to engage in, or to refrain from, any conduct.” Texas v.
United States, 523 U.S. at 301. And if their fears come to pass,
they may “protect all of their rights and claims by returning to
court when the controversy ripens.” Atl. States Legal Found.
v. EPA, 325 F.3d 281, 285 (D.C. Cir. 2003). Specifically, they
7 The dissent dismisses the change in course as “whitewashing”
and asserts that it goes only to mootness. Post at 31–32. But the
Acting Director’s speedy renunciation of any intent to shut down the
Bureau, backed with concrete action, bears directly on whether there
was a final shutdown decision to begin with. As explained above,
we routinely consider shifting “post-guidance events” to determine
whether an agency treats any informal guidance “as if it were
binding.” Nat’l Mining Ass’n, 758 F.3d at 253. Moreover, a central
purpose of prudential ripeness doctrine is to allow an agency space
to “alter a tentative position.” Pub. Citizen Health Rsch. Grp. v.
FDA, 740 F.2d 21, 31 (D.C. Cir. 1984); see also Ohio Forestry Ass’n,
523 U.S. at 735. If the Bureau’s change in course here—before any
plaintiff was denied any statutorily required service—went only to
mootness, then the ripeness doctrine would be futile.

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may seek judicial review to “compel agency action unlawfully
withheld or unreasonably delayed.” 5 U.S.C. § 706(1). In such
suits, they would have to wait until the Bureau actually denied
them a discrete service—and show either an immediate
entitlement to it or an unreasonable delay in providing it. See
Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C.
Cir. 1984). This is not a hardship; it is par for the course, even
in cases where plaintiffs’ lives and livelihoods depend on the
prompt receipt of agency services. See, e.g., Afghan & Iraqi
Allies v. Blinken, 103 F.4th 807, 810 (D.C. Cir. 2024) (delay in
the provision of “special-immigrant visas to certain Iraqi and
Afghan nationals who face serious threats because of their
faithful service to the United States”).
3
The plaintiffs respond by citing cases where unwritten
action, agency plans, and decisions to terminate agency
programs were held reviewable under the APA. They also seek
to distinguish National Wildlife and SUWA. But the cited cases
are inapposite, and the asserted distinctions fail.
Unwritten action. Cases involving final agency action not
committed to writing are few and far between. The plaintiffs
cite two. The first, Brotherhood of Locomotive Engineers and
Trainmen v. FRA, 972 F.3d 83 (D.C. Cir. 2020), is entirely
inapposite. It involved a regulatory scheme in which an
agency’s failure to act on a license application within a certain
number of days constituted an approval by operation of law.
Id. at 89–90. Approval of a license is final agency action,
whether committed to writing or not. Id. at 90; see 5 U.S.C.
§ 551(8), (13). Even so, we pointed to the application itself as
a “relevant written document” that would make clear exactly
what the agency had approved. See 972 F.3d at 100–01.

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The second case, Venetian Casino Resort, LLC v. EEOC,
530 F.3d 925 (D.C. Cir. 2008), involved an EEOC policy
allowing the agency to disclose confidential information
without prior notice to the submitter. Id. at 929–30. The parties
disputed which version of a written compliance manual setting
forth the policy was operative, but the district court found the
versions to be “identical in all material aspects,” and neither
party contested that finding on appeal. See id. at 928–30.
Moreover, each version left “no doubt” that EEOC permitted
disclosure without prior notice, and the agency conceded as
much. See id. An employer who had submitted confidential
information sued to enjoin EEOC from relying on the policy to
disclose its information. EEOC objected that promulgating the
manual was not final agency action because the manual was
“merely a guidance document that d[id] not affect its own or
the public’s legal obligations.” Id. at 931. This Court
responded that “the agency took final action by adopting the
policy, not by including it in the Manual.” Id. We further noted
that the policy was ripe for review because EEOC was on the
cusp of applying it to harm the plaintiff. See id. at 927–28.
On the plaintiffs’ telling, Venetian Casino stands for the
proposition that the APA permits review of agencies’
unrecorded abstract decisions. But the policy at issue there was
recorded repeatedly, in different versions of an agency
compliance manual. Its terms were clear from the manual and
materially identical in both versions. See 530 F.3d at 929.
Moreover, the manual was disseminated to agency employees
precisely to guide their decisions. See id. at 928–29. So,
statements in the manual qualified as a rule, see 5 U.S.C.
§ 551(13), which was final because the agency treated them as
binding. See, e.g., Nat’l Mining Ass’n, 758 F.3d at 253; Nat’l
Env’t Dev. Ass’n’s Clean Air Project, 752 F.3d at 1007. None
of this suggests that the unrecorded shutdown decision at issue
here, which was expressed in no agency statement, qualifies as

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a rule. To the contrary, courts cannot “postulat[e] the
existence” of a rule “wholly apart from” any agency statement
or its equivalent. See Biden v. Texas, 597 U.S. at 809. And
especially so, as the dissent acknowledges, post at 41, when the
agency has reduced the policy to writing, as it did in Venetian
Casino. In any event, we reviewed the policy at issue there
only because the agency was about to apply it to harm the
plaintiff, so the policy implicated none of the finality or
ripeness concerns associated with the shutdown decision here.
Agency plans. As explained above, agency plans generally
are not final because they contemplate “specific actions
implementing the plans.” Fund for Animals, 460 F.3d at 21.
But there are exceptions—some plans are made reviewable by
statute, see 5 U.S.C. § 704, and others are final because a
statute gives them some binding effect. The plaintiffs cite
cases involving such plans. See Marin Audubon Soc’y v. FAA,
121 F.4th 902, 906 (D.C. Cir. 2024) (plan made reviewable by
statute); Defs. of Wildlife v. Salazar, 651 F.3d 112, 113 (D.C.
Cir. 2011) (plan made binding by statute); Senior Res. v.
Jackson, 412 F.3d 112, 115 (D.C. Cir. 2005) (same). These
cases are inapposite, for no statute made the CFPB’s putative
shutdown decision binding or otherwise reviewable.
Program terminations. Finally, the plaintiffs point to
cases reviewing decisions to terminate agency programs—
most notably DHS v. Regents of the University of California,
591 U.S. 1 (2020), and Biden v. Texas. These cases prove that
such decisions can be final agency action. But neither one
suggests that the CFPB took final agency action here.
Regents involved Deferred Action for Childhood Arrivals
(DACA), “a program for conferring affirmative immigration
relief” on certain aliens unlawfully present in the United States.
591 U.S. at 18. DACA entitled qualifying aliens to apply for

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deferred action—a status enabling the alien to remain in the
United States, to work here, and to receive government benefits
such as Social Security and Medicare. See id. at 10. Following
a change in presidential administrations, the Acting Secretary
of Homeland Security issued a written memorandum
rescinding DACA. See id. at 12–13. The government argued
that the memorandum was unreviewable because it was
committed to agency discretion by law; the government never
suggested that the memorandum, self-executing on its face and
formally published by an acting Cabinet Secretary, was not
final agency action. See id. at 17–19. Still, the Supreme Court
stressed that the memorandum “provide[d] a focus for judicial
review.” Id. at 18 (cleaned up).
Biden v. Texas involved the Migrant Protection Protocols,
which required certain aliens entering the country from Mexico
to be returned to Mexico pending resolution of their removal
proceedings. 597 U.S. at 791. Following a change in
presidential administrations, the Acting Secretary of Homeland
Security issued a self-executing, written memorandum
formally ending the program. See id. at 808 (“I am hereby
terminating MPP.”). The Supreme Court held that the
memorandum was final agency action because it “marked the
consummation of the agency’s decisionmaking process and
resulted in rights or obligations being determined.” Id.
(cleaned up). Specifically, the memorandum “bound DHS staff
by forbidding them to continue the program in any way
from that moment on.” Id. at 808–09 (cleaned up).
In short, reviewability in these cases did not turn on the
fact that program terminations were at issue; it turned on the
fact that the plaintiffs challenged final, written memoranda
with formal legal consequence. Moreover, the Court in Biden
v. Texas made clear that it was reviewing the formal memo
itself, not any “abstract” termination decision “wholly apart

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from” that final rule. 597 U.S. at 809. Here, in contrast, the
plaintiffs seek to challenge an unrecorded decision that neither
binds agency staff nor restricts access to agency benefits.8
Discreteness precedents. The plaintiffs’ attempts to
distinguish National Wildlife and SUWA also fall flat. The
plaintiffs contend that the challengers in National Wildlife
sought to contest “thousands” of decisions, whereas they seek
to challenge only “a single plan to shut down the agency.” Red
Br. 35. But on the plaintiffs’ own account, that asserted plan
implicates hundreds of distinct contract and personnel
decisions. See, e.g., J.A. 648–49. And in any event, National
Wildlife held that an APA challenge may not bundle together
discrete actions in order to challenge them all together. See 497
U.S. at 890–94. Here, the plaintiffs equate all of the individual
“actions to suspend or terminate CFPB’s statutorily mandated
activities—including by issuing stop-work instructions,
cancelling contracts, declining and returning funding, firing
employees, and terminating the lease” with the “final agency
action”—in the singular—reviewable under the APA. J.A. 46–
47. As for SUWA, the plaintiffs contend it is inapplicable
because they seek to set aside an unlawful shutdown decision,
8 The dissent suggests that our analysis would permit the
government to terminate programs by “conceal[ing] … what it is
doing.” Post at 43; see also id. at 51 (positing action that “agencies
manage to obfuscate”). But programs afford benefits, which the
government could not rescind without some kind of public statement.
If the denial of some benefit were judicially reviewable while the
relevant program remained in effect, it would also be reviewable—
and would surely be set aside—if the government invoked a secret
termination decision as the basis for the denial. Moreover, if the
government sought to implement a secret termination by simply
refusing to provide benefits, or to act on applications for benefits,
courts could compel those actions under section 706(1), as we have
explained.

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not to compel mandatory agency operations. But the same
analysis of “agency action” governs both suits to set aside
unlawful action under section 706(2) and suits to compel action
unlawfully withheld under section 706(1). See SUWA, 542
U.S. at 64–65. And despite the plaintiffs’ disclaimer, they
sought and obtained a preliminary injunction ordering all kinds
of agency actions that were not themselves legally required,
such as a prohibition on conducting any RIFs.
4
The dissent asks us to imagine that the Acting Director had
issued a “formal written memorandum” announcing the
termination of the CFPB. Post at 23. The dissent argues that,
because such a hypothetical memorandum would be
reviewable, the shutdown decision inferred here must also be
reviewable. See id. at 39–42.
One can easily imagine a shutdown memorandum that
would be reviewable. Suppose the Acting Director had issued
this edict: “The Bureau is shut down. Effective immediately,
Bureau employees may not perform any work.” This memo
would be a rule—that is, “an agency statement … designed to
implement, interpret, or prescribe law or policy.” 5 U.S.C.
§ 551(4). And it would be final, reflecting the Bureau’s firm
decision to take an action with tangible legal consequences,
namely refusing to provide services as required by Congress.
See Biden v. Texas, 597 U.S. at 808–09. In effect, the memo
would operate like a legislative rule eliminating services that
the agency was required to provide. And because the memo
would have tangible legal consequences, a court could
meaningfully set it aside, restoring the Bureau’s ability to
perform mandatory services and, in so doing, redressing the
injuries of individuals who use the agency services. In other

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words, the reviewing court could undo the legal consequence
imposed by the memo.
But it hardly follows that the APA permits review of an
unrecorded rule—the existence of which the agency denies—
inferred from a collection of disparate agency actions. The
dissent cites no case in which any court reviewed a putative
rule that the agency denied having promulgated. And the very
notion of an unrecorded rule is almost oxymoronic. Agencies
promulgate rules to alter legal relationships, which is why rules
are often subject to pre-enforcement review. See, e.g., Abbott
Laboratories, 387 U.S. at 152. It is difficult to see how an
agency could accomplish that through a secret decision not
memorialized in any public statement, written or oral.
In any event, our analysis does not hinge on the absence of
a memorandum alone. Even if there were a memo, it would
not be reviewable unless it bound the agency. Suppose the
Acting Director wrote this: “I intend to shut down the Bureau.
Once the Bureau is shut down, it will have no employees and
will perform no tasks. Employees should begin preparing to
wind up the Bureau’s operations.” Suppose further that the
Acting Director, immediately after issuing the memo,
instructed employees to perform at least some of the Bureau’s
required work indefinitely. This memo would be a nonbinding
statement of something the agency intends to do in the future.
See Fund for Animals, 460 F.3d at 22. A court could not review
it, but only specific actions taken to implement it. See id.
The dissent posits that the Acting Director decided to shut
down the Bureau, and we do not contest this. But the dissent
does not explain how that decision bound the agency. It
acknowledges that the agency’s Chief Legal Officer, just three
weeks after the posited shutdown decision, instructed
employees to perform all legally required work. Post at 30–31.

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Moreover, the Acting Director took action inconsistent with a
final shutdown decision just one day after the decision is
alleged to have occurred. See J.A. 286 (February 11 email to
an employee: “I am specifically directing you … to continue
indefinitely to perform all tasks necessary to publish the APOR
on weekly basis.”). So even if an inferred shutdown decision
could be equivalent to a rule, the decision here was not final—
in other words, conclusive and binding.
The dissent’s analysis also reflects a mismatch between
the final agency action inferred and the remedy provided. If
the Acting Director had promulgated a formal memorandum
instructing Bureau employees not to perform any work, the
memo would be final agency action, and the reviewing court
could set it aside and thereby nullify its legal consequences.
But the court could not, in reviewing such a memo, enjoin or
set aside other agency actions—such as a RIF announced
around the same time. Yet the dissent advocates just that
approach. Like the plaintiffs, the dissent contends that we
should set aside not only the putative shutdown decision, which
has no legal consequence except as implemented through other
decisions, but that we should enjoin the constellation of
discrete actions from which it infers the shutdown decision.
See post at 56–59. As we have shown, the APA does not allow
us to leverage our review from one discrete action to another.
* * * *
The plaintiffs seek to set aside an abstract decision,
inferred from a constellation of discrete actions, to
prophylactically ensure that the Bureau can fulfill its statutory
mandate. This theory contravenes all the APA limits discussed
above—agency action, finality, ripeness, and discreteness
alike. If the plaintiffs’ theory were viable, it would become the
task of the judiciary, rather than the Executive Branch, to

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determine what resources an agency needs to perform its broad
statutory functions. Such pervasive judicial control of agency
administration falls well beyond limited APA review.
VI
With no express cause of action under the APA, the
plaintiffs must resort to equity.
A
To seek judicial review, a party ordinarily needs a
statutory cause of action expressly provided by Congress. But
sometimes, the Supreme Court has held, parties aggrieved by
federal agency action may seek equitable relief even without
an express statutory cause of action. See, e.g., Free Enter.
Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 491 n.2
(2010); Trudeau v. FTC, 456 F.3d 178, 190 (D.C. Cir. 2006).
The availability of such implied equitable relief substantially
depends on whether the plaintiff claims a statutory or
constitutional violation.
Implied equitable claims that a federal agency has violated
a federal statute, which we refer to as ultra vires claims, are
“extremely limited” in scope. Griffith v. FLRA, 842 F.2d 487,
493 (D.C. Cir. 1988). Confirming this point, the Supreme
Court recently described ultra vires challenges as “essentially
a Hail Mary pass—and in court as in football, the attempt rarely
succeeds.” NRC v. Texas, 145 S. Ct. 1762, 1776 (2025)
(quoting Nyunt, 589 F.3d at 449). To succeed on an ultra vires
claim, the plaintiff must show that (1) judicial review is not
expressly foreclosed; (2) the agency made an extreme legal
error; and (3) there is no alternative means for the plaintiff to
seek judicial review. See, e.g., Changji Esquel Textile Co. v.
Raimondo, 40 F.4th 716, 721–22 (D.C. Cir. 2022); DCH Reg’l
Med. Ctr. v. Azar, 925 F.3d 503, 509 (D.C. Cir. 2019). The

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plaintiffs expressly disavow any such ultra vires claim. For
good reason: As explained above, aggrieved CFPB employees
may seek judicial review through the CSRA scheme, and
aggrieved consumers of CFPB services may seek review
through the APA cause of action for unreasonable delay.
Courts also have long recognized implied equitable claims
arising under the Constitution. See Trudeau, 456 F.3d at 190.
And although the Supreme Court has all but eliminated implied
damages actions for constitutional claims, see, e.g., Egbert v.
Boule, 596 U.S. 482 (2022), it has continued to recognize
implied equitable actions “directly under the Constitution,”
Free Enter. Fund, 561 U.S. at 491 n.2. For implied equitable
claims under the Constitution, we have imposed neither the
requirements for ultra vires review nor those for APA review.9
B
To avoid the requirements for an ultra vires claim, the
plaintiffs seek to describe their equitable claim here as a
constitutional one. The claim targets the defendants’ putative
decision to shut down the CFPB. As explained above, the
plaintiffs contend that a shutdown would violate statutes that
establish the Bureau and require it to perform various tasks.
9 We have described such implied claims as involving “a direct
cause of action under” the Constitution. Trudeau, 456 F.3d at 190;
see also Free Enter. Fund, 561 U.S. at 491 n.2 (“an implied private
right of action directly under the Constitution”). This terminology is
perhaps imperfect insofar as equity courts did not speak of “causes
of action” as such. See Bray & Miller, Getting into Equity, 97 Notre
Dame L. Rev. 1763, 1772–76 (2022). Regardless of historical labels,
the “cause of action” or “private right of action” terminology does
help distinguish between two critically different questions—whether
the defendant has violated some provision of substantive law and
whether an injured plaintiff may seek redress in court.

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And because the Executive Branch cannot “amend statutes
unilaterally” or “usurp legislative authority conferred upon
Congress,” the plaintiffs say that a shutdown would also violate
the separation of powers. J.A. 44. Invoking Free Enterprise
Fund, the plaintiffs thus assert what they describe as a “cause
of action under the Constitution for the violation of the
separation of powers.” Red Br. 25.
In Dalton v. Specter, 511 U.S. 462 (1994), the Supreme
Court rejected a similar attempt to transform statutory claims
into constitutional ones. Dalton involved a presidential
decision to close the Philadelphia Naval Shipyard. Id. at 464.
Review through the APA was unavailable because the
President is not an “agency” for APA purposes. See id. at 469–
70. Nonetheless, following its decision in Franklin v.
Massachusetts, 505 U.S. 788 (1992), the Court assumed an
implied equitable action to review presidential decisions “for
constitutionality.” Dalton, 511 U.S. at 471–72. The plaintiffs
argued that the President’s decision to close the shipyard
violated various provisions in the governing statute. See id.
They further argued that these statutory violations had a
“constitutional aspect” because “whenever the President acts in
excess of his statutory authority, he also violates the
constitutional separation-of-powers doctrine.” Id. at 471.
Accordingly, they concluded, “judicial review must be
available to determine whether the President has statutory
authority for whatever action he takes.” Id. (cleaned up).
The Supreme Court rejected this argument. The Court
explained that it had “often distinguished between claims of
constitutional violations and claims that an official has acted in
excess of his statutory authority.” 511 U.S. at 472. And if “all
executive actions in excess of statutory authority were ipso
facto unconstitutional,” then these precedents would have had
“little need” for “specifying unconstitutional and ultra vires

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conduct as separate categories.” Id. Moreover, “if every claim
alleging that the President exceeded his statutory authority
were considered a constitutional claim, the exception identified
in Franklin would be broadened beyond recognition.” Id. at
474. Yet the “distinction between claims that an official
exceeded his statutory authority, on the one hand, and claims
that he acted in violation of the Constitution, on the other, is
too well established to permit this sort of evisceration.” Id. For
these reasons, the Court held that “claims simply alleging that
the President has exceeded his statutory authority are not
‘constitutional’ claims” freely reviewable in equity. Id. at 473.
Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320
(2015), reinforces this analysis. That case presented the
question whether healthcare providers have an implied
equitable action for statutory violations in state Medicaid plans.
Id. at 324. The providers argued that their claims were
constitutional because any state violation of a federal statute
would also violate the Supremacy Clause of the Constitution,
which makes federal law supreme over state law. See U.S.
Const. Art. VI, cl. 2; 575 U.S. at 324. The Supreme Court
refused to treat the claim as a constitutional one giving rise to
an unrestricted equitable action. See id. at 324–27. Instead, it
treated the claim as statutory—and applied ordinary canons of
construction to conclude that Congress had foreclosed
equitable relief. See id. at 327–29. In other words, statutory
claims do not become constitutional ones by operation of the
separation-of-powers principles that prevent the States and the
Executive Branch from disregarding federal statutes.
Those principles control this case. The assertedly
constitutional claim here begins with the premise that shutting
down the CFPB would violate the statutes that create the
agency and require it to perform various mandatory tasks.
Because CFPB leadership decided to violate these statutes, the

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argument goes, it “also violate[d] the constitutional separation-
of-powers doctrine.” Dalton, 511 U.S. at 471. This supposed
separation-of-powers violation turns entirely on whether CFPB
officials violated the governing statutes, so Dalton requires us
to analyze the claim as an ultra vires one. See id. at 472–74.10
C
The plaintiffs offer three responses to this straightforward
conclusion, but none is persuasive.
First, they contend that Dalton rested on a conclusion that
the statute at issue there committed base-closure decisions to
the discretion of the President, whereas no statute here
authorizes executive officials to shut down the CFPB. That
argument confuses two distinct rulings in Dalton. After
holding that constitutional review was unavailable because the
claims at issue were not constitutional, the Court then
separately considered whether ultra vires review was available.
As it did for the alleged constitutional claims, the Court
“assume[d] for the sake of argument that some claims that the
President has violated a statutory mandate are judicially
reviewable outside the framework of the APA.” 511 U.S. at
474. But, the Court explained, such ultra vires review “is not
available when the statute in question commits the decision to
the discretion of the President.” Id. Then, the Court concluded
that the statute at issue did not “limit the President’s
discretion,” which foreclosed ultra vires review. See id. at 476.
None of this reasoning narrowed the Court’s prior conclusion
that implied equitable review for constitutional claims is
10 In Global Health Council v. Trump, --- F.4th ---, No. 25-5097
(D.C. Cir. Aug. 13, 2025), this Court applied Dalton to hold that an
asserted separation-of-powers claim is statutory rather than
constitutional for reviewability purposes. See id. at __ (slip op. at
16–24). Our analysis is fully consistent with Global Health Council.

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unavailable where the plaintiff argues that statutory violations
by executive officials implicate the separation of powers. See
id. at 472–74.
Second, the plaintiffs invoke the Supreme Court’s
statement in Free Enterprise Fund that the Constitution creates
an “implied private right of action” for “separation-of-powers
claim[s]” as well as for individual-rights claims. See 561 U.S.
at 491 n.2. But the separation-of-powers claim vindicated in
Free Enterprise Fund was that Article II of the Constitution
prohibits Congress from insulating executive officers from
presidential control through two levels of for-cause removal
protection. See id. at 514. And since Free Enterprise Fund,
cases engaging in implied equitable review for separation-of-
powers claims have likewise involved claims that statutes
themselves violate Article II or other structural constitutional
provisions. See, e.g., Axon, 598 U.S. at 180; Collins v. Yellen,
594 U.S. 220, 227–28 (2021). None of these cases casts doubt
on Dalton’s holding that claims alleging nothing more than
executive actions in contravention of statutes give rise to ultra
vires claims but not implied constitutional claims.
Finally, the plaintiffs invoke Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579 (1952), which held that neither the
Vesting Clause nor the Commander-in-Chief Clause of Article
II authorized the President to seize the nation’s steel mills. See
id. at 585–89; U.S. Const. Art. II, § 1, cl. 1 & § 2, cl. 1. The
dispute in Youngstown was entirely constitutional. As the
Supreme Court explained in Dalton, the government had
“disclaimed any statutory authority for the President’s seizure
of steel mills” in Youngstown, so the case “necessarily turned
on whether the Constitution authorized the President’s actions”
through a freestanding Article II power. 511 U.S. at 473 (citing
Youngstown, 343 U.S. at 585–87). This case is the opposite:
The Executive has invoked no such freestanding Article II

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power. Instead, the only constitutional source of executive
authority in this case is the President’s obligation to take care
that the statutes governing the CFPB are faithfully executed.
See U.S. Const. Art. II, § 3. And as Dalton made clear, a claim
that executive officials have not discharged such a
responsibility under the Take Care Clause gives rise at most to
an ultra vires claim. See 511 U.S. at 472–74.11
VII
Some of the plaintiffs cannot establish jurisdiction, and the
others have no viable cause of action. The plaintiffs’ claims
therefore fail as a matter of law. We vacate the preliminary
injunction and remand the case for further proceedings
consistent with this opinion.
So ordered.
11 The dissent worries that a test characterizing claims
according to the authority invoked by the government would
empower it to avoid judicial review. Post at 54–55. But the question
is not whether the government may avoid judicial review; it is rather
whether plaintiffs must comply with statutory limits on APA review
or judge-made limits on ultra vires review. As we have shown,
Dalton holds that plaintiffs may not plead around those limits simply
by contending that the Executive Branch violates the Constitution by
acting in violation of a statute. See 511 U.S. at 472–74. As for the
dissent’s further hypothetical about a President nationalizing steel
mills yet denying it in litigation, post at 54, we repeat a point made
earlier: It is difficult to imagine a form of executive action
sufficiently public and conclusive to inflict immediate injuries but
not sufficiently public and conclusive to support judicial review,
through the APA or otherwise.

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P ILLARD, Circuit Judge, dissenting: Congress created the
Consumer Financial Protection Bureau to safeguard consumers
and the broader financial system after the unprecedented chaos
and hardship of the 2008 financial crisis and the ensuing Great
Recession. Congress gave the Bureau rulemaking,
enforcement, and direct-service duties and authorities befitting
its mission. The Bureau’s statutory mandates, like those of
other agencies, allow presidential administrations to exercise
significant discretion in adjusting agency priorities to account
for changing conditions and the vision and mandate of the
serving President. The exercise of that prerogative is subject
to the ordinary judicial review that prevents final agency action
that is arbitrary, capricious, or in violation of a statutory
command or constitutional right. The President’s chosen
CFPB leadership may—within those constraints—run the
Bureau as it determines best serves the public interest. But it
is emphatically not within the discretion of the President or his
appointees to decide that the country would benefit most if
there were no Bureau at all. Congress made the contrary
decision in legislation establishing the CFPB, and the power to
repeal that law lies with the legislative branch.
The district court found that Defendants acted to
unilaterally abolish the CFPB, apparently viewing its
continued existence to be inconsistent with President Trump’s
vision for the federal government. The court therefore
appropriately entered a preliminary injunction to preserve the
status quo ante and prevent the destruction of the Bureau
before the lawfulness of that action could be adjudicated.
Neither the government nor the majority seriously disputes
that, if we accept the district court’s findings of fact,
Defendants’ actions violated both the CFPB’s organic statute
and the constitutional separation of powers. The majority
appropriately rejects the government’s arguments that
Plaintiffs lack standing to challenge the destruction of the
CFPB, and that we otherwise lack jurisdiction to hear their

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claims. And the majority does not—and could not on the
record before us—conclude that the district court’s factual
findings setting out Defendants’ actions at the time this suit was
filed were clearly erroneous. The district court’s power to act
when it did to preliminarily enjoin Defendants’ unlawful action
should be apparent and uncontroversial.
My colleagues nonetheless vacate the preliminary
injunction because they deem the decision to unilaterally
abolish the CFPB not a type of agency action we are authorized
to review. That constricted view of our statutory and equitable
power contravenes statutes, precedent, and basic principles of
our constitutional government. Congress created the CFPB,
assigned it important missions and powers, and subjected its
decisions to the strong presumption of judicial review that
applies as a matter of course to the final actions of federal
agencies. It is untenable to hold that same Congress meant the
agency’s continued existence to be a matter of unilateral and
unexplained presidential edict.
The notion that courts are powerless to prevent the
President from abolishing the agencies of the federal
government that he was elected to lead cannot be reconciled
with either the constitutional separation of powers or our
nation’s commitment to a government of laws. I respectfully
dissent from the decision vacating the district court’s amply
supported preliminary injunction.
I.
A.
Following the 2008 financial crisis, Congress enacted the
Consumer Financial Protection Act of 2010 (CFPA, or Act) as
part of the broader Dodd–Frank Wall Street Reform and
Consumer Protection Act to overhaul supervision of the

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financial industry. Pub. L. No. 111-203, 124 Stat. 1955 (2010)
(codified at 12 U.S.C. § 5481 et seq.). After holding more than
50 hearings to inform its development of an effective
legislative response, Congress decided to consolidate authority
to enforce 18 preexisting, separate consumer protection statutes
in a single agency. CFPB v. Cmty. Fin. Servs. Ass’n, 601 U.S.
416, 421-22 (2024); see Members of Congress Amicus Br. 20-
22. The Act therefore created the Consumer Financial
Protection Bureau (CFPB or the Bureau), “which shall regulate
the offering and provision of consumer financial products or
services under the Federal consumer financial laws.” 12
U.S.C. § 5491(a).
Congress determined that the new agency, with existing
regulatory tools under common leadership, was essential to
safeguard consumers’ financial interests and the stability of the
financial system. Congress gave the CFPB responsibility to
combat misleading and fraudulent consumer financial
products. It sought to ensure that the true costs to consumers
of what are often their most expensive and consequential
investments are clearly and accurately communicated in
advance. And Congress understood that sound regulation,
reliably enforced, is also essential to a level playing field
among competitors. Without it, transparent and fair financial
services cannot survive a race to the bottom led by
unscrupulous competitors with inferior products. See
Members of Congress Amicus Br. 20-24.
It has thus been the CFPB’s duty since 2010 to encourage
compliance with and enforce violations of existing statutes,
including the Truth in Lending Act, 12 U.S.C. § 4308(a)(1), the
Equal Credit Opportunity Act, 15 U.S.C. § 1691c(a)(9), the
Home Mortgage Disclosure Act, 12 U.S.C. § 2808(a), and
others. The financial services Congress tasked the CFPB to
regulate include credit and debit cards, Compl. ¶ 25 (J.A. 28),

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student loans, Barnard Decl. ¶ 5 (J.A. 184), automobile loans,
Shearer Decl. ¶ 20 (J.A. 164), home mortgages, see 12 U.S.C.
§ 5581(b)(7), home equity loans, see 12 C.F.R. § 1026.40,
payday lenders, see 12 U.S.C. § 5514(a)(1)(E), debt collectors,
Meyer Decl. ¶ 6 (J.A. 62), payment apps like PayPal and
Venmo, see Defining Larger Participants of a Market for
General-Use Digital Consumer Payment Applications, 89 Fed.
Reg. 99582 (Dec. 10, 2024), and consumer credit reporting
services, Meyer Decl. ¶ 5 (J.A. 62).
Congress also gave the Bureau some new enforcement
tools. See Former CFPB Officials Amicus Br. 6-7. For
example, the Bureau elicits reports from and conducts
examinations of non-depository institutions, entities like
mortgage companies or payday lenders that are not banks but
still offer consumer financial products. 12 § U.S.C. 5514(b).
The Bureau has exclusive authority to supervise very large
banks with more than $10 billion in assets—whose
malfeasance poses unique risks to the broader economy—for
compliance with federal consumer-protection laws. Id. §
5515(a)-(b). That supervisory power, which preempts similar
efforts by state regulators, enables the Bureau to identify in
advance and communicate to regulated entities new
“consumer-protection issues before they become systemic or
cause significant harm” and informs future enforcement
actions against violators. States Amicus Br. 6-7, 24; see also
Former CFPB Officials Amicus Br. 7; Members of Congress
Amicus Br. 24-25.
The Bureau’s enforcement activities, including its
coordination of other regulatory bodies, are the “linchpin” of
Congress’s chosen financial oversight regime. Nonprofit Orgs
Amicus Br. 15; see Halperin Decl. ¶ 5 (J.A. 198). They reach
both “banks and ‘non-banks’ such as payday lenders, auto title
lenders, debt collectors, digital payment platforms, and

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5
consumer reporting agencies,” ensuring that even companies
not subject to the CFPB’s direct supervisory authority comply
with federal consumer protection laws. Halperin Decl. ¶ 4 (J.A.
198). The CFPB’s responsibility for supervising and
conducting examinations of financial institutions entails
assessing their financial health, risk management policies and
practices, and compliance with applicable laws. CFPB
supervision heads off financial problems like the 2008 financial
crisis before they occur by enabling the Bureau to “flag
problematic industry trends” and share its findings with
regulated parties “to guide compliance and promote
consistency and predictability.” Nonprofit Orgs. Amicus Br.
11-12. The CFPB also has regulatory authority to set common
ground rules for the industry. Its guidance on loan origination
and servicing, for example, now shapes daily practice in the
mortgage industry, after “th[at] sector . . . nearly sank the
world economy during the Great Recession.” Nonprofit Orgs
Amicus Br. 12-13.
The CFPB’s work since 2010 has curbed fraudulent and
misleading practices, including illegal junk fees, deceptive
credit card charges, and the unlawful seizure of consumers’
personal vehicles. Salas Decl. ¶ 3 (J.A. 192); Shearer Decl.
¶¶ 18, 20 (J.A. 163-64). More generally, the Bureau’s work
has served to deter regulated entities—particularly the largest
financial institutions who are largely exempt from state
financial regulations—from engaging in unlawful,
destabilizing, and consumer-harming behavior. See States
Amicus Br. 24-25. “Before the creation of the CFPB,
consumer financial protection had not been the primary focus
of any federal agency.” Halperin Decl. ¶ 3 (J.A. 197). The
2008 financial crisis provided a stark reminder of the risks of
such a regime. Without the work of “the one agency whose job
is to protect all American consumers,” Americans will

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6
inevitably face a “higher risk of losing their homes, their cars,
and their savings.” Salas Decl. ¶ 11 (J.A. 196).
Congress made extensive provision for the CFPB to carry
out its mission. The Act required the creation of several
identified divisions and the performance of discrete functions,
including enforcement, supervision, and adjudicatory
functions. See 12 U.S.C. §§ 5515, 5562-63. The Bureau is also
required to research congressionally identified topics, id. §
5493(b)(1), maintain and staff a telephone number and website
to receive and respond to consumer complaints, id. §
5493(b)(3), maintain and staff offices dedicated to financial
education and the protection of service members, traditionally
underserved consumers, older Americans, and student loan
borrowers, id. §§ 5493(d)(1), (e)(1), (b)(2), (g)(1); id. § 5535,
and carry out other statutorily specified functions conducive to
its core mission. See Former CFPB Officials Amicus Br. 7-9.
The CFPB has continued to carry out its obligations across
multiple presidential administrations despite the regulated
sector’s significant political and legal challenges to the Bureau
since its creation. In Seila Law LLC v. CFPB, 591 U.S. 197
(2020), the Supreme Court determined that the Act’s removal
protections for the CFPB Director violated the constitutional
separation of powers. Id. at 213, 220. When the Court severed
those protections from the rest of the statute, however, it held
that the Act’s provisions “bearing on the CFPB’s structure and
duties remain fully operative.” Id. at 235 (plurality opinion);
see also id. at 296-97 (Kagan, J., concurring in part and
dissenting in part). The CFPB’s unusual funding system,
which empowers the Bureau’s director to request funds directly
from the Federal Reserve System rather than proceeding
through the normal appropriations process, 12 U.S.C.
§ 5497(a), also drew legal challenge, but the Supreme Court

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upheld Congress’s chosen method to fund the Bureau. Cmty.
Fin. Servs. Ass’n, 601 U.S. at 424.
Until the events of this case, however, there has never been
any suggestion that Congress’s directives in establishing the
CFPB were somehow optional or lacking full operative effect.
During the first Trump administration, for example, Acting
CFPB Director Mick Mulvaney critiqued the Bureau’s funding
mechanism as “den[ying] the American people their rightful
control over how the Bureau spends their money.” Letter from
Mick Mulvaney, Acting Dir., CFPB, to the Hon. Jerome
Powell, Chair, Bd. of Governors of the Fed. Rsrv. Sys. (Mar.
23, 2018), https://perma.cc/D62E-JE6M. But, even before the
Court sustained that funding mechanism, Acting Director
Mulvaney recognized his obligation “to execute the law as
written,” and accordingly requested agency funding from the
Federal Reserve. Id. What happened here represents a sea
change.
B.
Virtually all the facts relevant to this appeal are
undisputed. The district court’s opinion clearly sets forth the
court’s findings of fact and amply supports them by reference
to the record. See NTEU v. Vought, 774 F. Supp. 3d 1, 16-39
(D.D.C. 2025). Those findings more than adequately justify
the district court’s entry of a preliminary injunction to preserve
the possibility of relief if Plaintiffs ultimately prevail. I briefly
recount here the key facts.
Starting on February 6, officials at the Department of
Treasury directed the Bureau to allow officials from the United
States Department of Government Efficiency (DOGE) access
to CFPB headquarters. Id. at 40. The next day, February 7,
President Trump designated Office of Management and Budget
Director Russell Vought as acting director of the Bureau.

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8
Under the new leadership, the CFPB’s homepage was taken
offline, Third Meyer Decl. ¶¶ 19-21 (J.A. 172-73), and Elon
Musk—whom President Trump described as “head[ing]
DOGE”1—posted “CFPB RIP” alongside a tombstone emoji
on his personal X account, Am. Compl. ¶ 39 (J.A. 33).
The next day, OMB Director Vought instructed CFPB
staff not to approve any rules or guidance, take enforcement
actions, issue public communications, or take certain other
actions “unless . . . required by law.” Feb. 8 Vought Email
(J.A. 117). That email echoed language from an earlier
message to Bureau staff from then-Acting Director (and
Treasury Secretary) Scott Bessent. See Feb. 3 Bessent Email
(J.A. 110). Vought followed that missive with a directive to all
Bureau Employees on the morning of Monday, February 10,
categorically ordering them to “not perform any work tasks”
without securing written approval from him through the
Bureau’s new Chief Legal Officer, Mark Paoletta. Feb. 10
Vought Email (Stop Work Order) (J.A. 101). Unlike previous
communications, the Stop Work Order referenced no exception
for performing statutorily required work. It was soon followed
by the announcement of a public tip line encouraging members
of the public to report CFPB employees who might be
attempting to do their jobs “in violation” of the Stop Work
Order. Frotman Decl. ¶¶ 5-6 (J.A. 204-05).
On the heels of the Bureau-wide Stop Work Order,
President Trump triumphantly told a reporter that “we did the
right thing” because the Bureau “was a very important thing to
get rid of,” and he “praised his administration for shutting
[down] the CFPB.” Compl. ¶ 47 (J.A. 36). In contrast to the
typical process of re-prioritization during a transition from one
1 Megan Lebowitz, Lawyer Submits ‘New Evidence’ in Case against
DOGE, Using Trump’s Own Words, NBC (Mar. 5, 2025),
https://perma.cc/24DA-TX5R.

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9
administration to the next, Shearer Decl. ¶¶ 6-7 (J.A. 157),
Bureau leadership began to execute its shut-down policy by
indiscriminately ceasing and unwinding ongoing work. They
directed staff to terminate hard-fought litigation midstream:
The cases dismissed by the CFPB sought relief on
behalf of students who were subject to illegal
collections on loans that had been discharged in
bankruptcy; borrowers who were deceived about the
true cost of loans made on a peer-to-peer nonbank
lending platform; people shopping for a mortgage
loan that were victims of an illegal scheme to steer
them to a specific lender; manufactured home buyers
who were set up to fail with unaffordable loans;
struggling customers of small dollar loans who were
induced into a fee-harvesting and loan-churning
scheme; and consumers who were deceived about
their personal savings accounts. The CFPB’s
complaints had alleged that consumers in these cases
experienced billions of dollars of harm.
Halperin Decl. ¶ 16 (J.A. 201). Bureau leadership halted
impending examinations at mortgage lenders, auto finance
companies, debt collection agencies, and other consumer-
facing industries that the Bureau was undertaking in
cooperation with state regulators. Salas Decl. ¶ 9 (J.A. 195).
Only a trickle of public-facing activities resumed after Paoletta
instructed staff to at least partially restart them—a step he took
in response to advice that keeping them offline risked a public
backlash. See Mar. 10 Hearing Tr. 89:2-6, 192:21-25 (J.A.
988, 1091).
With the Bureau’s work effectively shuttered, Defendants
then took steps to permanently unwind the agency. During the
week that started with the Stop Work Order on Monday,

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10
Defendants fired all the Bureau’s probationary and term
employees. Drew Doe Decl. ¶ 5 (J.A. 135). That Tuesday, the
Bureau’s Chief Financial Officer directed staff to inform
leadership of any “contracts directly support[ing] a statutory
requirement, meaning that [the Bureau] would not be able to
meet a statutory requirement without this contract.” Ex. F (J.A.
416-17). But that exercise was pointless. Rather than conduct
any discernably rational assessment of which contracts were
necessary for the Bureau to continue to do the work Congress
assigned it, Paoletta simply terminated all contracts across five
separate divisions of the Bureau—a mere six hours after
supposedly expressing an interest in knowing which contracts
had to be preserved. Feb. 11 Paoletta Email (J.A. 288). The
terminated contracts included, for example, every contract in
the Office of Consumer Response, even though that Office had
responded to leadership’s earlier request and singled out some
of those contracts as necessary for statutorily required work.
Ex. F (J.A. 417); Pfaff Decl. ¶ 27 (J.A. 148). Bureau leadership
directed contracting officers to terminate the chosen contracts
less than an hour after Paoletta’s order. Feb. 11 Galicki Email
(J.A. 407). Presumably because of Defendants’ urgency to
eliminate those necessary contracts as soon as possible, the
termination letters included no directions to contractors to
preserve Bureau data or records they held on behalf of the
Bureau. Mar. 10 Hearing Tr. 174:6-10 (J.A. 1073). As a result,
critical systems were turned off before the CFPB’s employees
or contractors could secure the agency’s data, raising the risk
that some of the data loss may have been irrecoverable. Drew
Doe Decl. ¶ 6 (J.A. 135).
Having eliminated the Bureau’s contracts and
probationary and term employees, Defendants moved on by
Wednesday to shed the CFPB’s permanent staff. On the
evening of February 12, the Bureau agreed to pay OPM for
“restructuring assistance services” related to a planned

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11
Reduction in Force (RIF). Ex. II (J.A. 572-73). Federal
regulations ordinarily require agencies to give employees who
will be subjected to a RIF 90 days’ advance notice to enable
those employees to compete for other positions. See 5 C.F.R.
§ 351.402(c). However, on Thursday CFPB Chief Operating
Officer Adam Martinez asked OPM for an exception to the 90-
day rule, explaining that the RIF was being done in immediate
response to the Stop Work Order. Feb. 13 RIF Request (J.A.
578-80). OPM approved the request, and Defendants began
preparing the paperwork to fire about 1200 employees with the
bare minimum 30-day notice, leaving the Bureau with less than
a fifth of its original headcount, and to place the employees on
administrative leave in the interim. Feb. 13 RIF Request (J.A.
578-80); Feb. 14 Martinez Administrative Leave Email (J.A.
582); see Mar. 11 Hearing Tr. 45:9-18 (J.A. 1219). Martinez
explained to staff that the regulation’s 90-day period, designed
to give employees subject to RIFs the opportunity to compete
for remaining positions, was unnecessary because the Bureau’s
elimination would leave no remaining positions. Mar. 11
Hearing Tr. 59:14-22 (J.A. 1233). Defendants planned for the
RIF of the vast majority of the Bureau’s staff to take place by
the end of the day on Friday February 14, one week after
Vought was named Acting Director. Feb. 14 Martinez
Administrative Leave Email (J.A. 582). Those plans were
disrupted by this litigation.
C.
Plaintiffs, a group of nonprofits that benefit from the
CFPB’s work together with organizations that represent the
Bureau’s employees, filed suit on February 9. On February 13,
Plaintiffs filed an amended complaint and moved for a
temporary restraining order. On February 14, the district court
scheduled a hearing on the TRO motion for that afternoon.
Martinez and the others working on the ongoing RIF planning

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12
were soon informed of the scheduled hearing. Ex. LL (J.A.
584).
Impending court proceedings gave Defendants no pause;
they responded by doubling down. Less than 10 minutes after
Martinez received an email alerting him to the scheduled
federal court hearing—and a mere 16 minutes before the
hearing was scheduled to begin—the Bureau told OPM that it
could no longer “wait until COB” and instead “need[ed] the
last set of [RIF materials] now.” Ex. MM (J.A. 586). The
Bureau’s leadership and OPM continued to send emails back
and forth for the next few hours, with OPM confirming that the
RIF was necessary to implement the Stop Work Order, and
Martinez explaining that the remaining Bureau employees
(including himself) would be terminated “in the next group” by
an ensuing RIF. Feb. 14 Martinez RIF Email (J.A. 539).
Defendants were unable to finalize the RIF before the
district court acted. On the afternoon of Friday, February 14,
the court entered a partial stay by consent order. The stay order
prohibited Defendants from deleting CFPB data, terminating
additional CFPB employees (except for cause), or transferring
away the Bureau’s funds. Consent Order (J.A. 99-100). The
initial stay order was supplemented by an agreement between
the parties to freeze any additional contract terminations
pending the district court’s ruling on a preliminary injunction.
See Joint Notice of Agreement, ECF No. 65.2
The RIF team at the CFPB continued to meet during the
following week, with Martinez informing colleagues that the
RIF would resume and the agency would completely shut down
after the court order was lifted. Mar. 11 Hearing Tr. 56-59 (J.A.
1230-33). Senior Bureau executives told staff that all CFPB
2 All citations to ECF Numbers are to National Treasury Employees
Union v. Vought, No. 25-cv-00381.

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13
offices would close and that all data storage and compliance
activities would cease to be necessary. Drew Doe Decl. ¶¶ 7-8
(J.A. 136). Meanwhile, the Stop Work Order remained in
effect and the Bureau’s congressionally assigned functions
halted. The agency drifted along in that state of limbo until
early March.
The district court scheduled oral argument on the
preliminary injunction motion for March 3. On the afternoon
before the scheduled argument, Paoletta sent a message to all
Bureau staff stating “[i]t has come to my attention . . . that
some employees have not been performing statutorily required
work” since the Stop Work Order. Mar. 2 Paoletta Email (J.A.
338). Paoletta informed staff that “work that is required by
law” could proceed without prior approval from Bureau
leadership—although he gave no instruction on which work
was and was not “required by law.” Over the next few days,
Paoletta authorized some requests from staff to resume
functions that had been halted by the Stop Work Order. See
Mar. 2 Paoletta/Warren Emails (J.A. 341-44); Mar. 2
Paoletta/Johnson Emails (J.A. 347); Mar. 3 Correal Email (J.A.
351); Mar. 3 Martinez/Lee Emails (J.A. 374-77); Mar. 3
Paoletta/Pappalardo Emails (J.A. 390-91).
The White House appears not to have understood the
newfound importance of demonstrating a commitment to the
Bureau’s statutory work. The White House website soon
celebrated that the CFPB had been “ordered . . . to halt
operations.” Vought, 774 F. Supp. 3d at 47. And, given the
lack of direction, staff remained confused as to what work, if
any, they were authorized to perform. See Mar. 10 Hearing Tr.
105:12-16, 109:13-21 (J.A. 1004, 1008).
On March 10-11, the district court held a two-day
evidentiary hearing on the motion for a preliminary injunction,

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14
at which Martinez testified as Defendants’ primary witness.
Before the hearing, Martinez submitted a declaration stating
that, notwithstanding the Stop Work Order, the Bureau was
continuing to fulfill its statutory obligations, and that the
CFPB’s leadership was “engaging in ongoing decision-making
to assess how to make the Bureau more efficient and
accountable.” First Martinez Decl. ¶¶ 19-23 (J.A. 106-07). But
once Plaintiffs submitted evidence showing that Defendants’
actions had in fact prevented the Bureau from performing its
required activities, and that Martinez himself had told staff that
the CFPB was shutting down, Martinez revised his position.
In a supplemental declaration, Martinez conceded that
claims from Bureau employees that Martinez had said the
agency was closing entirely were “not inaccurate,” and in fact
aligned with DOGE directives that Martinez understood “to
reflect the position of agency leadership.” Supp. Martinez
Decl. ¶ 3 (J.A. 240). However, Martinez continued, “since
then . . . a great deal has evolved at the CFPB,” and the current
leadership—admittedly, the same people as before—was now
“focused on running a substantially more streamlined and
efficient [B]ureau,” having moved on from the “very fluid
situation” around February 10. Id. ¶ 4 (J.A. 241).
At the hearing, Martinez testified to similar effect. He
confirmed what he averred in his supplemental declaration:
Based on communications from DOGE staff operating with
authorization of agency leadership, he had understood as of the
week of February 10 that the CFPB was being closed down and
that his statements to the contrary in his first declaration were
inaccurate. Mar. 10 Hearing Tr. 54-55, 126-28 (J.A. 953-54,
1025-27). He also testified that Defendants had been in the
process of eliminating entire statutorily required divisions of
the CFPB before the district court intervened. Mar. 10 Hearing
Tr. 130-31 (J.A. 1029-30). But, Martinez added,

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15
“circumstances [had] changed since the week of February 10,”
and Vought did not currently intend to implement the plans that
were being carried out during the week of February 10. Mar.
10 Hearing Tr. 56, 61:6-8 (J.A. 955, 960).
Then, on cross-examination, Martinez backtracked again.
He conceded that neither Vought, Paoletta, nor anyone else had
told him that the plan had changed at any time since the
announcement that the Bureau was to be abolished. Mar. 10
Hearing Tr. 158, 229-230 (J.A. 1057, 1128-29). He
acknowledged that he did not know the current plans for the
CFPB. Mar. 11 Hearing Tr. 24-25 (J.A. 1198-99).
Martinez further testified that, until the eve of the March 3
district court argument when Vought sent out his email telling
staff that they had apparently been free to do statutorily
required work all along, Bureau employees had not been
performing required activities since the Stop Work Order. See
Mar. 10 Hearing Tr. 66:10-16 (J.A. 965). Martinez conceded
that statements in his first declaration—that the Bureau had in
fact been performing obligatory functions despite the Stop
Work Order—were false. See Mar. 10 Hearing Tr. 187-88
(J.A. 1086-87). He further admitted he would “not [be]
surprise[d]” if staff remained sidelined even after Vought’s
supposedly clarifying email, and that he did not know how
many staff had been brought back from administrative leave
following Defendants’ newly professed commitment to the
Bureau’s resumption of statutorily required work. Mar. 10
Hearing Tr. 67-68 (J.A. 966-67). Martinez also acknowledged
that, without any apparent forethought or assessment,
Defendants had cancelled scores of contracts necessary to the
Bureau’s work. See Mar. 10 Hearing Tr. 70-71 (J.A. 969-70).
Plaintiffs presented two witnesses at the hearing. The first,
a pseudonymous CFPB employee listed in the record as Alex

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Doe, testified that on the week of February 10 Martinez and
DOGE staffers, relaying instructions from Defendants,
explained that the Bureau was in the process of being
eliminated, Mar. 11 Hearing Tr. 39-40 (J.A. 1213-14), and that
all staff would be subjected to RIFs across multiple divisions
with no employees to be retained, Mar. 11 Hearing Tr. 43 (J.A.
1217). Doe further testified that Martinez said that the plan
remained unchanged after the week of February 10. Mar. 11
Hearing Tr. 59-60, 63-64 (J.A. 1233-34, 1237-38). The second
witness, Matthew Pfaff, Chief of Staff at the Bureau’s Office
of Consumer Response, testified that his office had been unable
to respond to consumer complaints or referrals because of the
Stop Work Order and Defendants’ cancellation of contracts,
including contracts that employees had told Defendants were
necessary to perform statutorily required work. Mar. 11
Hearing Tr. 76-79 (J.A. 1250-53).
Following the evidentiary hearing, the district court
granted the preliminary injunction. The court held that
Plaintiffs had a cause of action under the Constitution to
challenge the alleged termination of the Bureau on separation-
of-powers grounds, and that they could challenge both the Stop
Work Order and the action shuttering the CFPB under the
APA. The court also determined that the plaintiff nonprofit
organizations had standing because they and their members
would be harmed by the shutdown of the Bureau, and that harm
could be redressed by a court order preventing Defendants
from abolishing the agency. Vought, 774 F. Supp. 3d at 49-53.
On the merits, the court rejected Defendants’ “attempts to
deny what was afoot” as “at odds with the undisputed facts in
the record and the documents produced by both sides.” Id. at
47. The court found that Defendants’ attempts to demonstrate
that the Bureau was carrying out its required work were “highly
misleading, if not intentionally false,” and “ha[d] been shown

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17
to be unreliable and inconsistent with the agency’s own
contemporaneous records.” Id. at 57. The court emphasized
that Defendants’ efforts to characterize the Stop Work Order,
in defiance of the record, as “not really a stop work order at all”
were “so disingenuous that the [c]ourt is left with little
confidence that [Defendants] can be trusted to tell the truth
about anything.” Id.
The court concluded by finding that Defendants “were in
fact engaged in a concerted, expedited effort to shut the agency
down entirely when the motion for injunctive relief was filed;
while the effort to do so was stalled by the [c]ourt's
intervention, the plan remains unchanged; and [Defendants]
have absolutely no intention of operating the CFPB at all.” Id.
at 57-58.
On that basis, the court held that Plaintiffs were likely to
succeed on the merits of their claim that Defendants had
unlawfully ordered the shuttering of the Bureau. Id. Plaintiffs
had shown irreparable harm, the court found, because
Defendants would finish eliminating the agency in short order
in the absence of a preliminary injunction forbidding it. The
balance of equities and the public interest also favored an
injunction. The public interest would be served by preventing
Defendants from “overstep[ping] their statutory and
constitutional authority and usurp[ing] the power of the
members of Congress.” Id. at 82. And the public interest
would be served by preventing the massive disruption of the
financial sector that would occur if the CFPB were shut down.
Id. at 82-84.
The preliminary injunction directed Defendants to: 1)
maintain and not delete Bureau records and data, 2) reinstate
the probationary and term employees who had been fired, 3)
not terminate or subject to a RIF any additional CFPB

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employee, except for cause, 4) not enforce the Stop Work
Order, 5) provide Bureau employees with the means to work
in-office or remotely, 6) maintain the Office of Consumer
Response’s consumer complaint system, and 7) rescind notices
of contract termination and not finalize the termination of any
future contract (although Defendants were permitted to halt
contracts following an individualized assessment that they
were unnecessary). Preliminary Injunction Order at 1-3 (J.A.
745-47).
Defendants appealed to this court and sought to stay the
preliminary injunction pending appeal. In seeking a stay,
Defendants did not meaningfully contest the propriety of an
injunction preventing them from unlawfully abolishing the
CFPB; they argued only that portions of the preliminary
injunction were overbroad in ways that impermissibly
restricted their management discretion. See Stay Mot. Oral
Arg. Tr. 6-7. We responded by partially staying the
preliminary injunction to afford legitimate managerial leeway.
The stay order permitted Defendants to refrain from reinstating
terminated employees whom they had determined were
unnecessary to fulfilling the Bureau’s statutory duties, to
conduct further terminations or RIFs of employees who had
been determined to be similarly unnecessary, and to conduct
limited work stoppages of activities that Defendants had
determined were not necessary for the Bureau’s legal
obligations. NTEU v. Vought, No. 25-5091, 2025 WL 1721068
(D.C. Cir. Apr. 11, 2025).
Days after our partial stay, Defendants attempted a RIF of
approximately 90% of the Bureau’s employees. When
Plaintiffs asked the district court to halt that RIF as inconsistent
with the unstayed portions of the preliminary injunction, the
government sought clarification from us. We reinstated the
original prohibition of all RIFs to avoid further collateral

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litigation or personnel action that might prevent Plaintiffs from
“receiv[ing] meaningful final relief should [Defendants] not
prevail” on their appeal. NTEU v. Vought, No. 25-5091, 2025
WL 1721136 (D.C. Cir. Apr. 28, 2025).
II.
We review the district court’s decision to grant a
preliminary injunction for abuse of discretion, its legal
conclusions de novo, and its factual findings for clear error.
Media Matters for Am. v. Paxton, 138 F.4th 563, 573 (D.C. Cir.
2025). “[D]eciding whether to grant a preliminary
injunction is normally to make a choice under conditions of
grave uncertainty.” Singh v. Berger, 56 F.4th 88, 95 (D.C. Cir.
2022) (quoting O Centro Espirita Beneficiente Uniao do
Vegetal v. Ashcroft, 389 F.3d 973, 1015 (10th Cir. 2004) (en
banc) (McConnell, J., concurring)). The purpose of a
preliminary injunction is not to finally set the obligations of the
parties, but to “preserve the status quo pending the outcome of
litigation.” Dist. 50, United Mine Workers of Am. v. Int’l
Union, United Mine Workers of Am., 412 F.2d. 165, 168 (D.C.
Cir. 1969).
I concur in the majority’s holding that at least one plaintiff
nonprofit organization is likely to demonstrate standing to
challenge the unlawful shutdown of the CFPB. Because only
one plaintiff need have standing for us to reach the merits,
Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232
(D.C. Cir. 1996), we need not address whether the employee
plaintiffs’ claims were also properly asserted in district court
or must instead be channeled through the separate
administrative structure Congress created for federal
employment disputes.

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III.
Plaintiffs press an APA challenge to Defendants’ “final,
concrete decision to shut down the agency entirely.” Vought,
774 F. Supp. 3d at 47. Defendants strenuously deny the
existence of such a decision. They insist they never adopted
any policy to unlawfully abolish the Bureau. But the district
court made well-supported findings of fact to the contrary.
Defendants offered no contemporaneous alternative
explanation for their challenged conduct that squares with both
the facts and the Bureau’s statutory obligations going forward.
And they certainly have not carried their burden to show clear
error in the district court’s findings.
Defendants argue instead that Plaintiffs lack a cause of
action under the APA to contest a decision to abolish an agency
created by Congress. Rather than seek APA review of any
shutdown order, Defendants assert, Plaintiffs must await and
challenge each of the steps the agency would have taken to
implement the Bureau’s shuttering. Vought Br. 37-38.
Alternatively, Defendants argue, Plaintiffs should have waited
until the Bureau had been abolished entirely and then
challenged its inevitable failure to perform statutorily required
work under the APA quasi-mandamus provision allowing a
plaintiff to “compel agency action unlawfully withheld or
unreasonably delayed.” Vought Br. 40-41 (quoting 5 U.S.C.
§ 706(1)). Plaintiffs’ challenge to the directive to shut down
the agency, Defendants say, exceeds limits Congress placed on
any APA cause of action, such as the bar on “programmatic
challenges” that do not identify a discrete agency action
amenable to review. Vought Br. 22, 30-31.
Defendants’ position that Plaintiffs have no APA cause of
action to challenge an agency’s policy decision to cease some
(actually all) of its ongoing work is incompatible with binding

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precedent. Notwithstanding all of Defendants’ objections that
their challenged action is non-final or too diffuse, or that
Plaintiffs’ claim is somehow unripe, the Supreme Court has
undertaken APA review of agency action that, like the policy
decision Plaintiffs challenge in this case, directed an agency to
shut down its activities. Biden v. Texas, 597 U.S. 785, 809
(2022); Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,
591 U.S. 1, 16-18 (2020); see also Public Citizen v. Steed, 733
F.2d 93, 98 (D.C. Cir. 1984). At bottom, the basis Defendants
rely on to distinguish those cases is that the agencies there made
formal, published announcements of their policy decisions,
whereas the record in this case contains no similarly public
announcement. But Defendants may not evade APA review
solely because, as the district court found, Defendants acted to
abolish the agency without bothering to draft an official
memorandum first.
Circuit precedent is clear that agency action need not “be
committed to writing” to be judicially reviewable. Bhd. of
Locomotive Eng’rs & Trainmen v. Fed. R.R. Admin., 972 F.3d
83, 100 (D.C. Cir. 2020). We have held an agency takes final
action “by adopting [a] policy” that binds its employees,
regardless of whether or how the agency memorializes that
policy’s adoption. Venetian Casino Resort, LLC v. EEOC, 530
F.3d 925, 931 (D.C. Cir. 2008). Any rule to the contrary would
simply encourage agencies to act in secret, in defiance of
foundational principles of administrative law.
Plaintiffs may challenge the decision to abolish the CFPB
as final agency action under the APA. Because Defendants
have never argued that their shutting down of the Bureau was
lawful under any substantive standard we might apply to such
action, the district court appropriately found that Plaintiffs
were likely to succeed on that challenge and entered a

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preliminary injunction to preserve the agency while litigation
continues.
A.
Plaintiffs’ statutory claims face a threshold question
whether they have identified a “final agency action” subject to
challenge under the APA. See 5 U.S.C. § 704. The “central
purpose” of the APA is to permit a “broad spectrum of judicial
review of agency action.” Bowen v. Massachusetts, 487 U.S.
879, 903 (1988). Courts therefore read the word “action”
generously to encompass “comprehensively every manner in
which an agency may exercise its power.” Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 478 (2001). The “bite” in the
statute is instead provided by the condition that the action also
be “final,” id., requiring that it both “mark the consummation
of the agency’s decisionmaking process” and “be [an action]
by which rights or obligations have been determined, or from
which legal consequences will flow.” Bennett v. Spear, 520
U.S. 154, 177-78 (1997) (citations omitted). An action’s
effects need not be immediate for it to be subject to APA
challenge, so long as it “result[s] in a final determination of
rights or obligations.” Biden v. Texas, 597 U.S. at 809 n.7
(citation omitted). And, as just noted above, we may review
agency action even if it is not “committed to writing.” Bhd. of
Locomotive Eng’rs, 972 F.3d at 100.
The district court held that the “final, concrete decision to
shut down the agency entirely” was final agency action subject
to challenge under the APA. Vought, 774 F. Supp. 3d at 47.
Defendants’ primary argument to the contrary is that a decision
to eliminate the Bureau would only be “a preliminary step
along the way to a final action.” Vought Br. 37. In other
words, Defendants suggest that Plaintiffs were required to
delay filing their suit until the Bureau had been destroyed,

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rather than challenge the determination to eliminate the CFPB
in the first place. The law assuredly does not so require.
An example drawn from Plaintiffs’ brief helps to illustrate
the point. See NTEU Br. 3. Imagine if, on February 10, Acting
Director Vought had issued a formal written memorandum to
CFPB staff announcing that the Bureau was closing up shop
and telling employees to “take all appropriate actions to
terminate the Bureau.” By itself, such a memo would have no
immediate, real-world effect on any person who, like the
nonprofit plaintiffs in this case, benefited from the CFPB’s
existence and would be harmed by its shuttering. Only once
subordinate staff began to implement the order by, for example,
halting lawsuits promising relief, terminating contracts needed
for the Bureau’s work, refusing to accept or respond to hotline
requests, and firing the Bureau’s employees would the memo’s
impact on would-be plaintiffs be felt. But the law is clear that
such a memo reflects reviewable agency action. Plaintiffs need
not wait until the policy decision is fully implemented before
they can challenge it. See Toilet Goods Ass’n v. Gardner, 387
U.S. 158, 164 (1967) (explaining that agency action is ripe for
judicial review when “the impact of the administrative action
could be said to be felt immediately by those subject to it”).
In Biden v. Texas, the Supreme Court endorsed APA
review of a decision that could just as easily be characterized
as “a preliminary step along the way” to a complete action,
Vought Br. 37, as the Bureau shutdown in this case. The
district court accepted the claim for review as soon as
Homeland Security Secretary Mayorkas issued the memo
terminating the “Remain in Mexico” program and directing
staff “to take all appropriate actions to terminate [the program],
including taking all steps necessary to rescind implementing
guidance and other directives or policy guidance issued to
implement the program.” Biden v. Texas, 595 U.S. at 793-94.

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That memo qualified as final agency action because it bound
staff to stop implementing the terminated program—just as the
hypothesized Vought memo would have bound Bureau staff to
discontinue their own work. See id. at 808-09. In fact, in Biden
v. Texas the Supreme Court also held that a later, similar memo
likewise qualified as reviewable agency action even though
that memo ordered staff to take no action to terminate the
program until ongoing litigation was completed. Id. at 809 n.7.
No matter that, by its own terms, the memo could have no real-
world effect until the occurrence of a separate event beyond the
agency’s control. Nothing in Biden v. Texas suggests that the
government could have forestalled a court challenge by
ordering the termination of the entirety of Customs and Border
Protection, or the whole Department of Homeland Security,
instead of that individual program.
In this case, of course, there is no record of such a memo.
It is especially remarkable that Defendants rely on the absence
of documentation here, at a litigation stage prior to any
discovery into the internal machinations of Bureau leadership,
and on a record that reflects Defendants’ deliberate avoidance
of the ordinary tools of openly reasoned and vetted agency
decision making. The lack of evidence that Vought reduced
his directive to writing is of no legal import—just as the result
in Biden v. Texas would have been the same had Secretary
Mayorkas elected to terminate the Remain in Mexico program
orally or by semaphore rather than by written command.
Binding circuit precedent confirms the point. In Venetian
Casino Resort, the plaintiff challenged the EEOC’s alleged
policy authorizing Commission staff to disclose an employer’s
confidential business information without first notifying the
employer. 530 F.3d at 927. As part of its defense, the EEOC
argued that its internal compliance manual, which appeared to
authorize such disclosures, was not reviewable final agency

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25
action because it was a guidance document and did not create
any legal obligations. Id. at 931. But we held that argument
“misdirected,” as:
Venetian does not contend the Manual itself is a final
agency action. Rather, Venetian challenges the
decision of the Commission to adopt a policy of
disclosing confidential information without notice.
The Manual is relevant insofar as it illuminates the
nature of the policy, but the agency took final action
by adopting the policy, not by including it in the
Manual. Adopting a policy of permitting employees
to disclose confidential information without notice is
surely a consummation of the agency’s
decisionmaking process, and one by which [the
submitter’s] rights [and the agency’s] obligations
have been determined.
Id. (formatting altered). So too here.
The CFPB took final action when it adopted a policy to
shut itself down, just as the Department of Homeland Security
took final action by adopting a policy to terminate the Remain
in Mexico program. The specific verbal and written statements
of Vought and others are critical evidence as to what action the
Bureau did or did not take, but the action itself is the “manner
in which an agency . . . exercise[s] its power,” Am. Trucking,
531 U.S. at 478, rather than the method by which that exercise
of power is communicated or memorialized. Indeed, at oral
argument the government’s counsel conceded the point that
courts may “infer from circumstantial evidence that there’s a
decision.” Oral Arg. Tr. 78:6-7. In the district court, Plaintiffs
also pursued an alternative theory that the Stop Work Order
was itself final agency action challengeable under the APA.
See Vought, 774 F. Supp. 3d at 42-46; NTEU Br. 32-34. But

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the gravamen of their claim is simply that “[D]efendants
decided to shut down the agency.” NTEU Br. 14. The scope
and effects of the Stop Work Order certainly reinforce the
nature of the action Defendants took, but resolving this case
does not require analyzing that Order separately under the
APA.
B.
Because binding precedent establishes that adopting a
policy to terminate the CFPB would constitute final reviewable
agency action, the next question is whether Defendants in fact
adopted such a policy. The district court found in the
affirmative. As the court explained: “The decision to close an
agency is not a theoretical or hypothetical concept—it’s real.
The agency is either open or it’s not.” Vought, 774 F. Supp. 3d
at 47. And the record supports the district court’s finding that
Defendants made “a final, concrete decision to shut down the
agency entirely.” Id. Following a two-day evidentiary hearing
and review of extensive written evidence, the district court
concluded that “defendants were in fact engaged in a concerted,
expedited effort to shut the agency down entirely” on the week
of February 10. Id. at 58. Defendants had ordered “the
wholesale cessation of activities” through “the decision to shut
down the agency completely, id. at 46, and “the agency was
barreling full speed ahead in [the] effort to dismantle the
agency completely by the end of the week [of February 10],”
id. at 58, before the district court intervened. Those findings
are well supported by the record and certainly survive clear
error review.
To recap the most relevant undisputed facts of record: The
same day that Vought was named acting CFPB director, CFPB
leadership took the Bureau’s website offline and deleted its X
account, while Elon Musk—whose DOGE subordinates were

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embedded within the Bureau—posted “CFPB RIP” alongside
a tombstone emoji on his personal X account. Third Meyer
Decl. ¶ 19 (J.A. 172); Kaspar Decl. ¶ 6 (J.A. 52). On February
10, the first full workday after Vought’s appointment, Vought
directed CFPB employees to “not perform any work tasks.”
Stop Work Order (J.A. 101). President Trump announced the
same day that “[t]he CFPB was a very important thing to get
rid of” and “we did the right thing.” Frotman Decl. ¶ 4 (J.A.
204); Roston/Scible Decl. Ex. G, ECF No. 38-17; see Vought,
774 F. Supp. 3d at 16-38, 40. The next day, Bureau Chief Legal
Officer Paoletta ordered the cancellation of all contracts in
several of the CFPB’s largest and most important divisions,
including Enforcement, Supervision, and Consumer Response.
Feb. 11 Paoletta Email (J.A. 288). The terminated contracts
included the contracts that staff had, at Paoletta’s request,
identified as necessary for the Bureau’s (statutorily required)
work. Pfaff Decl. ¶ 27 (J.A. 148). CFPB employees were
directed to terminate contracts as fast as possible without
bothering to take typical measures to preserve CFPB data.
Mar. 10 Hearing Tr. 174 (J.A. 1073); Charlie Doe Decl. ¶¶ 3-
5, 12 (J.A. 129-30, 132). After terminating all probationary
and term-limited employees, Defendants then began preparing
the paperwork to terminate all other Bureau employees in two
phases. Mar. 10 Hearing Tr. 129-30 (J.A. 1028-29); see Feb.
14 Martinez RIF Email (J.A. 539). Those efforts were paused
by the district court’s consent order (the effect of which we
extended in a stay pending decision of this expedited appeal).
Martinez meanwhile continued to inform Bureau employees
that the Bureau would be closed entirely once the order was
lifted and it became possible to do so. Mar. 11 Hearing Tr. 57-
59 (J.A. 1231-33).
Based on those findings of fact, the district court’s factual
conclusion that Defendants had adopted a policy to eliminate
the CFPB is unassailable. Analogizing again to Biden v. Texas,

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imagine if no formal memo had issued but President Biden had
made public statements that it was “very important” to have
gotten rid of the Remain in Mexico program; that Department
of Homeland Security leadership had ordered employees who
had been implementing the policy to cease their activities,
terminated contracts necessary to carry out the policy, and
stated that DHS staff responsible for the policy were slated for
termination without replacement; and that the Department’s
Chief Operating Officer had informed staff that the policy
would be formally terminated as soon as a court order
preventing them from doing so was lifted. A court reviewing
that record would reasonably conclude that Secretary
Mayorkas had in fact directed the Department of Homeland
Security to terminate the Remain in Mexico program, or that
the Department had otherwise adopted a policy of terminating
that program. The district court’s intervention through the
consent order and stay to forestall Defendants’ implementation
of some of the necessary steps to abolish the CFPB does not
alter the calculus, just as the second memo in Biden v. Texas
was a final, reviewable agency action even though it could not
have operative effect until an injunction protecting the Remain
in Mexico policy was lifted. 597 U.S. at 809 n.7.
Defendants strenuously deny any intent to shut down the
Bureau, but the evidence they point to regarding their activities
around February 10—that is, at the time when the district court
found that they adopted a binding policy to abolish the CFPB—
is scarce indeed. For example, Defendants emphasize that
Paoletta approved restarting the statutorily required consumer
complaint hotline and publication of data under the Home
Mortgage Disclosure Act after both had ceased pursuant to the
Stop Work Order. Oral Arg. Tr. 21:19-23. But Martinez
testified that such work was restarted primarily because
Agency leadership feared a backlash if public-facing activities
of the Bureau were to go dark. Mar. 10 Hearing Tr. 89:2-6,

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192:21-25 (J.A. 988, 1091). The district court dismissed
Defendants’ limited efforts to restart some workstreams the
week of February 10 as too little, too late. Leadership’s
approvals were “narrow and grudging,” and “when it was doing
anything, the agency was largely doing what was statutorily
mandated to manage itself internally,” not reviving what was
needed to carry on the Bureau’s public-protective activities.
Vought, 774 F. Supp. 3d at 65. The district court’s factfinding
is dispositive.
More importantly, even as the Bureau took limited steps to
restore limited, public-facing functions, any restoration was
illusory because it remained impossible to run the activities
ostensibly restarted, such as the CFPB Consumer Resource
Center’s consumer complaint hotline and database, without the
contracts necessary to their operation. For example,
Defendants had cancelled and not restored five contracts for
components including systems enabling data sharing, and for
virus scanning software, each of which was required for the
complaint hotline’s case management system. Without the
contracts, the hotline could not effectively respond to calls
from members of the public, whether to submit a complaint,
answer a question, or provide an update. See Pfaff Decl. ¶¶ 27-
30 (J.A. 148-49). Even as Defendants went through the
motions of starting to bring a limited set of public-facing
activities back online, they simultaneously sought permission
from OPM to permanently eliminate, on an accelerated
timeline, the entirety of the offices and staff responsible for
much of that work. Memorandum from Adam Martinez to
Michael J. Mahoney (Feb. 13, 2025) (J.A. 518).
On clear error review, we “may not reverse” a district
court’s factual findings that are “plausible in light of the record
viewed in its entirety.” Cuddy v. Carmen, 762 F.2d 119, 124
(D.C. Cir. 1985). The government’s counsel insisted at oral

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argument that “there’s a fog of confusion about what’s going
on in the early days” of Vought’s leadership of the Bureau.
Oral Arg. Tr. 78:13-14. But the district court found based on
record evidence that Defendants’ actions—stopping essentially
all of the Bureau’s work, terminating contracts necessary for
the CFPB’s operations, preparing to eliminate the entirety of
the agency’s staff, and informing staff that the Bureau would
cease to exist after the court’s order was lifted—resulted from
an intentional effort to implement the policy decision
announced by the President, the leader of DOGE, and the
Bureau’s own Chief Operating Officer. That policy decision
was to close the CFPB and cease to perform the work that
Congress created it to perform. The only other conceivable
explanation would seem to be recklessness and gross
incompetence, but Defendants have not advanced that
explanation.
Instead, Defendants principally argue that, even accepting
that they attempted to abolish the CFPB in February, they had
repudiated any such policy by early March. See Vought Br.
49-52. But Defendants cannot recast the action that forced
Plaintiffs to file this suit—the shutdown decision that they had
begun implementing when the district court acted—solely by
claiming to have later changed their minds. And the evidence
of such an about-face is, in any event, minimal and failed to
persuade the district court. To be sure, on March 2 Paoletta
informed Bureau staff that employees had been expected all
along to carry out statutorily required work without any prior
permission. Mar. 2 Paoletta Email (J.A. 338). He did not
explain how that squared with the Stop Work Order’s
requirement of prior permission to do essential work, or the tip
line to report and stop any work proceeding without
permission. Paoletta’s new order was followed by a flurry of
directives from March 2-3 authorizing staff to perform certain
required tasks. Martinez gestured at this theory when he

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31
testified that, although “DOGE came in with a very hard fist,”
there had since been a “change in posture” and a “differing
approach[]” once Vought and his deputies—whom Martinez
referred to as “the adults”—were in command. Mar. 10
Hearing Tr. 23:2-5 (J.A. 922). Notably, the record contains no
evidence that Defendants had in fact developed any plan
whatsoever for running the agency—as opposed to eliminating
it.
The district court rejected Defendants’ effort to reframe
the evidence and the conclusions Defendants insisted could
flow from it as a “charade for the [c]ourt’s benefit,” given that
Defendants sent the putative course-correction emails shortly
before the district court’s scheduled hearing on the motion for
a preliminary injunction. Vought, 774 F. Supp. 3d at 11.
Neither those emails nor any other evidence in the record could
give a reasonable observer a “definite and firm conviction” that
a mistake was made. Cooper v. Harris, 581 U.S. 285, 309
(2017) (internal quotation marks omitted). The district court
was on solid evidentiary ground when it rejected Defendants’
contentions that the CFPB’s Chief Legal Officer was somehow
unaware for almost three weeks that the Bureau’s statutorily
required work had halted, and the termination was intended to
be permanent.
Indeed, Defendants’ continued insistence that the Stop
Work Order was never intended to pause statutorily required
work squarely conflicts with their contemporaneous attempt to
use that same Order to justify the accelerated, permanent firing
of the employees who performed the work that Defendants now
say they intended to continue. And the government could not
even stick to its talking points. Shortly after Paoletta’s
whitewashing email, the White House publicly celebrated that
President Trump had “ordered [the Bureau] . . . to halt
operations.” Id. at 47.

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In any event, the argument that Plaintiffs cannot obtain an
injunction because, weeks after they filed suit, Defendants took
steps to reverse the policy Plaintiffs challenged is at most a
suggestion that the case is moot—an argument that Defendants
are not making, and that is unsupported. To be sure, federal
courts may not resolve a case after “a complaining party
manages to secure outside of litigation all the relief he might
have won in it,” but it is well established that a defendant may
not “automatically moot a case by the simple expedient of
suspending its challenged conduct after it is sued.” FBI v.
Fikre, 601 U.S. 234, 240-41 (2024) (internal quotation marks
omitted). Any defendant seeking to show mootness in such
circumstances faces a “formidable burden” to prove that the
challenged practice “cannot ‘reasonably be expected to recur.’”
Id. at 241 (quoting Friends of the Earth, Inc. v. Laidlaw Env’t
Servs. (TOC), Inc., 528 U.S. 167, 189-90 (2000)).
Defendants have never—not before the district court nor
on appeal—sought to bear their formidable burden to show that
Plaintiffs’ claims are moot. Nor have they ever sought to
modify or vacate the preliminary injunction on grounds of
changed circumstances rendering its continued enforcement no
longer equitable. See Horne v. Flores, 557 U.S. 433, 447
(2009) (holding that a party may move to modify or vacate a
judgment or order if “a significant change either in factual
conditions or in law renders continued enforcement detrimental
to the public interest.”); cf. Petties v. District of Columbia, 662
F.3d 564, 571 (D.C. Cir. 2011). They cannot stitch together
evidence of what they say is a post-litigation embrace of their
legal obligations to recharacterize the record as it existed—
showing just the opposite—when the case was filed.

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C.
Defendants’ efforts to portray Plaintiffs’ claims as, at their
heart, a miscast attempt to “compel agency action unlawfully
withheld,” 5 U.S.C. § 706(1), fare no better. Vought Br. 39-
42. Throughout this case, Plaintiffs have made clear that they
challenge Defendants’ decision to shut down the CFPB rather
than seek to compel the performance of any specific agency
duty or service. NTEU Br. 35-36. Defendants insist that
anticipation of “losing access to services [Plaintiffs] allege
CFPB is statutorily required to provide” can only support a
quasi-mandamus APA suit to compel agency action
“unlawfully withheld or unreasonably delayed.” Vought Br.
39; 5 U.S.C. § 706(1). Their insistence that Plaintiffs’ only
recourse under the APA must be found in section 706(1) is
squarely foreclosed by precedent.
This case challenges the Executive’s unilateral decision to
disband an agency Congress created by statute, not that
agency’s failure to answer individual queries or bring certain
wished-for enforcement actions. The public that Congress
intended to benefit is not disallowed from bringing the former
kind of challenge nor relegated exclusively to the latter.
Regents illustrates the point. The plaintiffs there challenged a
DHS memorandum ordering the termination of the “DACA
Program,” which allowed certain undocumented immigrants to
apply for forbearance of removal, work authorization, and
other federal benefits. 591 U.S. at 8-10. Those plaintiffs, who
would have been harmed by DACA’s abolition, challenged the
order terminating the program under 5 U.S.C. § 706(2), which
permits courts to “hold unlawful and set aside agency action.”
591 U.S. at 16. The Supreme Court undertook review in
Regents and vacated the DHS order. It did so even though the
plaintiffs’ claims, which necessarily arose from the harms they
would have suffered had the agency failed to continue

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implementing the to-be-cancelled DACA Program, might have
equally been described as an attempt to compel the agency to
perform actions unlawfully withheld—such as acting on their
individual DACA applications or providing them benefits they
would be afforded if they qualified under DACA.
Biden v. Texas is further support. Plaintiffs’ APA claim
arose from the injury they would incur if DHS stopped
enrolling noncitizens in the Remain in Mexico program. The
suit could easily have been framed as an attempt to compel the
agency to act by continuing those enrollments. See 597 U.S. at
793-94. The Court nonetheless recognized the case as
challenging final agency actions that had occurred, and not as
a quasi-mandamus suit to compel actions that plaintiffs claimed
the agency had unlawfully failed to take. Id. at 807-08.
Congress in the APA did not confine persons in Plaintiffs’
position to claiming that the agency must reconstruct,
piecemeal and from the bottom up, each of the components of
the terminated agency on which they depend for specific
services or broader legal protections.
To be sure, demonstrating standing to challenge the
shutting down of the CFPB requires Plaintiffs to show that the
challenged agency action causes them harm that likely would
be redressed if the challenged action were set aside. See FDA
v. All. for Hippocratic Med., 602 U.S. 367, 380 (2024). But the
standing inquiry—wherein Plaintiffs must identify how they
benefit from the Bureau’s activities to support their claim that
its abolition would injure them by ceasing those activities —
does not somehow transform their section 706(2) challenge to
the CFPB’s shutdown into a premature section 706(1)
challenge to the Bureau’s failure to provide future services or
protection.

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Nor does it matter that eliminating the CFPB would affect
Plaintiffs indirectly, rather than regulating their own primary
conduct. It is “typical” in APA suits that “[a]n unregulated
plaintiff” will “challenge an allegedly unlawful agency rule
that regulates others but also has adverse downstream effects
on the plaintiff,” and seek to benefit from the court’s broad
power to vacate unlawful agency actions. Corner Post, Inc. v.
Bd. Of Governors of the Fed. Rsrv. Sys., 603 U.S. 799, 826-27,
829-30 (2024) (Kavanaugh, J., concurring).
Defendants’ argument that Norton v. Southern Utah
Wilderness Alliance (SUWA), 542 U.S. 55 (2004), forecloses
Plaintiffs’ suit is wide of the mark. See Vought Br. 41-43.
SUWA held that plaintiffs may not invoke the APA’s compel-
agency-action provision unless they “assert[] that an agency
failed to take a discrete agency action that it is required to
take.” Id. at 64. SUWA is a section 706(1) case, with little to
say regarding the merits of Plaintiffs’ section 706(2) challenge.
Plaintiffs have never asked that the court force the CFPB to do
anything other than vacate its unlawful order to disband the
agency. Defendants’ objections that, in doing so, Plaintiffs
must nonetheless identify a “specific, unequivocal command”
producing a “clear duty” for the agency to act in the manner
Plaintiffs desire similarly carry no weight. See Vought Br. 43
(citations omitted). Defendants have never disputed that the
Bureau is unambiguously legally obliged not to shut itself
down.
And, in the posture of a 706(2) suit, a plaintiff is free to
challenge an agency’s decision to halt ongoing operations even
when there is no dispute that those activities were not
specifically statutorily required. See Regents, 591 U.S. at 16
(noting that “[a]ll parties” agreed that the government was not
legally obliged to continue DACA). Of course, the CFPB’s
existence and operation is statutorily required, but Defendants’

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actions would be subject to review even if it were not. One
central function of the 706(2) cause of action is to ensure that,
even when agencies take (or refrain from) action that the
agency’s own statute leaves in their discretion, the agencies
must comply with the fundamental requirement of reasoned
decision making. The fact that Congress permits agencies a
degree of discretion in what action to take does not invite
agencies to act arbitrarily, without forethought, transparency,
or public comment on the decisions they choose. And it surely
does not insulate from review an agency’s decision to unwind
itself.
D.
Defendants also argue that Plaintiffs are barred from
mounting an APA challenge to the order to shut down the
CFPB because their requested relief is impermissibly
“programmatic.” Vought Br. 21-22. It is uncontroversial that
plaintiffs “cannot seek wholesale improvement of [an agency]
program by court decree,” but must instead “direct [their]
attack against some particular ‘agency action’ that causes
[them] harm.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891
(1990). If Plaintiffs’ argument were that Defendants’
management of the Bureau is too lax, inattentive, or lethargic,
that dispute would presumably have to be resolved “in the
offices of the [Bureau] or the halls of Congress, where
programmatic improvements are normally made.” Id.
Similarly, even though the management of an agency is,
necessarily, made up of various discrete actions, many of
which might be subject to APA challenge, a plaintiff cannot
mount a “generic challenge to all aspects of [the agency’s]
program” by aggregating ongoing and changing agency
operations into a package they label a discrete, reviewable
action. Id. at 890 n.2. The Court in Lujan accordingly rejected
plaintiffs’ efforts to mount an APA section 706(2) challenge,

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as parties “aggrieved” under section 702 by the Bureau of Land
Management’s “land withdrawal review program.” Id. at 890.
The Court explained that the “program” plaintiffs identified
was not an “identifiable agency action” but only “the name by
which petitioners have occasionally referred to” BLM’s
ongoing “operations . . . in reviewing withdrawal revocation
applications and the classifications of public lands and
developing land use plans as required by [statute].” Id.
(internal quotation marks omitted).
This case, challenging a distinct agency decision of major
legal and practical import, bears no resemblance to the diffuse
collection of agency activities at issue in Lujan. Defendants
weakly contest the factual footing of Plaintiffs’ claim that
Defendants adopted a policy to terminate the CFPB, but that
challenge fails for reasons already discussed. See supra Part
III.B. Defendants cannot achieve the same result by treating
Lujan as if it were a thread they can pull to unravel the
established APA cause of action that Plaintiffs invoke here.
See 5 U.S.C. § 706(2). That APA cause of action is available
to challenge Defendants’ highly focused agency action. It is
not defeated under Lujan because the action has broad
effects—effects that might even be fairly labeled as
“programmatic”—across all the Bureau’s operations. Nothing
in Lujan supports Defendants’ contention that the decision by
CFPB’s new leadership to abolish the Bureau is unreviewable
under section 706(2) to determine whether it was arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.
Indeed, Lujan itself underscored in no uncertain terms that
plaintiffs may challenge a specific action “applying . . . across
the board to all [land] classification terminations,” even though
“the entire ‘land withdrawal review program,’ insofar as the
content of that particular action is concerned, would thereby be

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affected.” 497 U.S. at 890 n.2. It is hard to imagine an agency
action that more clearly applies “across the board” to all
ensuing agency operations than an order to terminate an agency
entirely. That conclusion is confirmed by the Supreme Court’s
treatment of the challenges to the termination of the DACA and
Remain in Mexico programs as justiciable APA challenges to
discrete, reviewable agency action, rather than impermissible
programmatic challenges to the general way the defendant
agencies intended to oversee those programs. Defendants
cannot evade judicial review of their unlawful action simply
because their adopted policy’s effects are complicated and will
have comprehensive, programmatic impact on how the agency
does (or, more to the point here, does not) carry out its
obligations. Plaintiffs have a cause of action to challenge under
the APA the decision to terminate the CFPB’s activities and
shut down the agency.
E.
The majority embraces every argument Defendants make
as reason to defeat Plaintiffs’ statutory cause of action. After
summarizing well-accepted guidelines constraining judicial
review of agency action, my colleagues object that:
• Plaintiffs have not identified a specific rule or “agency
statement” authorizing the Bureau’s shutdown,
Majority Op. 29 (quoting 5 U.S.C. § 551(4) and adding
emphasis);
• any shutdown order was not final because ensuing
agency actions like contract terminations and RIFs
would need to occur before the decision would be fully
implemented, Majority Op. 30;
• shutting down the Bureau is “insufficiently discrete” to
merit judicial review because the CFPA itself provides

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no structure for the Bureau’s exercise of that power,
Majority Op. 31;
• preventing the CFPB’s unlawful abolition would
require overly intrusive judicial management of the
Bureau’s functions, Majority Op. 31-32; and
• any shutdown was not ripe for review because, they
say, Defendants have reevaluated their plans since the
week of February 10—despite the district court’s
explicit findings to the contrary, Majority Op. 33-34;
see Vought, 774 F. Supp. 3d at 58.
I have already explained why none of those hurdles applies to
justify vacating the preliminary injunction.
The keystone on which all of Defendants’ attacks on the
preliminary injunction rest is a much simpler, singular
assertion. Their unifying premise is that an agency
categorically immunizes its exercise of power from judicial
review by refraining from memorializing its directives as such.
After all, each of Defendants’ other reasons for asserting that
Plaintiffs lack a cause of action would, in theory, equally apply
if the record showed that, on or around February 10, Vought
sent a memo to Paoletta and other members of the Bureau’s
leadership directing them to take “all appropriate actions” to
abolish the CFPB in defiance of Congress’s command
otherwise.
As discussed above, even an authoritative written memo
would, on Defendants’ view, require further agency action to
implement it to the detriment of Plaintiffs or other interested
parties before Plaintiffs could bring an APA challenge to the
policy it memorializes. Such a memo would not derive from
any specific “authoritative text” that might help structure
judicial review—at least if the majority is right that “no statute
or regulation authorizes the CFPB to shut itself down.”

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Majority Op. 31. It is also quite possible that, by the time a
court vacates an unlawful shutdown decision, agency
leadership might in the meantime have decided to pursue a
different policy. But binding precedent is unambiguous that
such a shutdown order, if shown to be unlawful, can be
reviewed in court and vacated or “set aside.” And,
notwithstanding the majority’s catalogue of hurdles, I do not
understand my colleagues to disagree with that. Rather, the
majority ultimately rests on distinguishing Biden v. Texas and
Regents—both of which permitted judicial review of shutdown
orders despite sharing the difficulties the majority also
catalogues—on the ground that those cases involved “written
memoranda.” Majority Op. 38.
The issue, then, is what weight should be placed on the
absence of any such memo in the record here. To analogize to
Regents, consider the dilemma of a district court seeking to
follow the majority’s approach in that case if there were no
memo, but the record included unrebutted statements by the
President and agency leadership that the DACA program had
been abolished, testimony of DHS employees that they had
been told that the program was being abolished, and evidence
that all the employees and contracts necessary for the program
had been terminated such that the program was not in fact being
implemented. The majority does not explain why the result
should be different on that record for want of “written
memoranda” reflecting the order that DHS staff abolish
DACA. Majority Op. 38. Defendants, for their part, appear to
suggest that the district court, even if certain that the DACA
program had been unlawfully abolished, would lack authority
to enjoin its termination, and could only encourage the
plaintiffs to file quasi-mandamus suits under section 706(1) to
attempt to force the agency to recreate the program piecemeal.
I cannot agree.

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To begin with, consider the illogic and perverse incentives
inherent in adopting Defendants’ preferred approach. My
colleagues suggest the ability of any affected plaintiff to obtain
relief turns entirely on the form of the evidence establishing the
agency’s action. But there is no substantive distinction
between a termination of a program triggered by a formal
memo decreeing it and one mandated without such
memorialization: Even if Plaintiffs could proffer a memo, the
agency “action” we review would be the same agency closure,
not the preparation or circulation of the memo. And the import
of the availability of a memo for the judicial review process is
primarily evidentiary. In either case, the legality of any such
shutdown turns on the agency’s statutory authority to abolish
the program at issue, and perhaps on the agency’s
contemporaneous reasons for doing so, rather than on whether
the termination happened by memo, email, or verbal directive.
The majority relies on Biden v. Texas and Regents for its
preferred rule, Majority Op. 37-39, but nothing in those cases
suggests that the written nature of the program terminations at
issue was pivotal to their outcomes. Because the government
there had proceeded in the ordinary fashion by announcing
major policy changes via written directives, the Court naturally
relied on those documents in identifying the relevant agency
action. (We would have, too.) Neither decision, however,
purported to hold that “final, written memoranda” were always
necessary for agency action. Majority Op. 38. To the contrary:
Regents explained that the “action [that] provide[d] a focus for
judicial review” was the “creation” of DACA and its
“rescission,” not the written memorandum. 591 U.S. at 18
(quoting Heckler v. Chaney, 470 U.S. 821, 832 (1985)). And
Biden held only that, where a formal memorandum terminating
Remain in Mexico did exist, it served as the “operative agency
action[]” because it qualified as a rule on its own terms and
“bound [agency] staff by forbidding them to continue the

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program in any way from that moment on.” 597 U.S. at
808-09, 810 (internal quotation marks omitted) (citing 5 U.S.C.
§ 551(4)). It strains credulity to think that either outcome
would have been different had DHS proceeded as the CFPB
did here, rather than by memorializing its decisions. In holding
as much, the panel majority essentially punches a hole in the
“basic presumption of judicial review” of agency action
codified in the APA, McLaughlin Chiropractic Assocs. v.
McKesson Corp., 145 S. Ct. 2006, 2015 (2025) (internal
quotation marks omitted), to the benefit of agencies that, for
whatever reason, proceed without a record of their reasoning or
formal public notice that leaves a paper trail.
That said, the majority’s rule remains somewhat unclear.
In attempting to distinguish Biden v. Texas and Regents from
this case, the opinion emphasizes the presence in those cases of
“written memoranda,” Majority Op. 38, but it elsewhere
suggests that even an “informal” or “oral” statement might
suffice, Majority Op. 29, 41. Certainly, this case would be
more straightforward if Defendants had announced in the
Federal Register their decision to close the CFPB. But the
majority does not make clear why the record here fails to satisfy
even its own newfound rule. If it does not, what would? An
email from Vought stating that the decision had been made to
close the agency? The same announcement at an all-staff
meeting? A press conference where the decision is made
public? In my view, agency leadership’s mode of
communicating its decision to abolish the agency—a decision
the district court found was made—does not change the
decision’s susceptibility to APA review. It is the agency’s
decision itself that is the focus of our review.
Defendants’ argument that Plaintiffs lack an APA section
706(2) cause of action is also wholly at odds with the basic
purpose of administrative law to ensure that agency actions are

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“the product of reasoned decisionmaking,” Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 52
(1983), and that an agency “clearly disclose[]” its reasons for
acting as it does, SEC v. Chenery Corp., 318 U.S. 80, 94
(1943). That is why, for example, agencies cannot act and then
defend their actions with justifications developed after the fact.
Id. at 94-95; see, e.g., Regents, 591 U.S. at 20. That is also why
it counts strongly against an agency when, in a judicial
proceeding challenging the agency’s action, the record shows
that the agency concealed its true reasons for acting. See Dep’t
of Com. v. New York, 588 U.S. 752, 785 (2019). Defendants
argue—and my colleagues now appear to hold—that if the
agency not only conceals its reasons for acting, but obfuscates
what it is doing while it acts, it may thereby immunize its
operations from judicial review. There is no plausible reason
why Congress would have wanted to afford less judicial
scrutiny to executive agencies when they make critical
decisions—including shutting down an agency created by
statute—without any publicly available, lawful, nonarbitrary
reasoning to justify them.
To be sure, an APA section 706(2) cause of action is
definitionally limited to its statutory scope. If Congress had in
fact provided for judicial review only insofar as a final agency
action is effectuated by a clear, written directive, then I would
credit Defendants’ argument. But Congress did no such thing.
The relevant statutory provision defines an agency action as
“includ[ing] the whole or a part of an agency rule, order,
license, sanction, relief, or the equivalent . . . thereof.” 5
U.S.C. § 551(13) (emphasis added).
My colleagues affirm that the Bureau’s action shutting
itself down would be reviewable under section 706(2) if there
were a memo or oral announcement directing it. See Majority
Op. 40-41. But they offer no reason why the agency’s doing

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the same thing without the overarching announcement
necessarily falls outside of Congress’s residual reference to
“equivalent” types of agency action. 5 U.S.C. § 551(13).
Instead, they fall back on the reference to a “statement” in the
statutory definition of an agency “rule.” Majority Op. 29 n.5
(quoting 5 U.S.C. § 551(4)). That bears, at most, on whether
the form of action shutting down the CFPB was an agency
“rule.” It does nothing to establish that every type of agency
action—whether “rule, order, license, sanction, relief, or the
equivalent . . . thereof,” 5 U.S.C. § 551(13)—must be
encapsulated in a “statement” to be subject to judicial review.
By barring review of the decision to shut down the Bureau for
want of a memorandum or “statement” announcing it, the court
without comment reads “the equivalent . . . thereof” out of
Congress’s intentionally capacious definition of agency action.
See id.
The majority further cabins the APA by holding that a
“collection of disparate agency actions” is not a fit focus of
judicial review, and characterizing the decision to shut down
the Bureau as just such an unreviewable amalgam. Majority
Op. 41. But Plaintiffs challenge a single action—the shutdown
decision—as to which a collection of different agency actions
is probative evidence. Nothing about those actions themselves
is “disparate.” Rather, the record reflects a concerted and
coordinated campaign undertaken by agency leadership
simultaneously to dismantle every functional requisite of the
Bureau’s, with all steps keyed to the single goal stated publicly
by the President and his subordinates: “get[ting] rid of” the
CFPB. See supra pp. 26-27. That is a far cry from a random
assortment of “disparate agency actions” or a “secret,”
“unrecorded,” or “[u]nexpressed” shutdown decision made by
a single agency head. Majority Op. 29 n.5, 41.

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Nor is there anything “oxymoronic” about recognizing that
an “unrecorded” agency action could be the subject of APA
review. Majority Op. 41. The expansive statutory definition
of “agency action” is designed to reach situations in which
agencies adopt an “equivalent” of any of the most common
types of agency action without necessarily making the formal
“statement” typical of an agency rule. The declarations by the
President and his subordinates of their objective, together with
swift and near-complete execution, suffices anyway as “a
statement” of the agency’s decision. That no prior case has
reviewed such a situation speaks only to the unprecedented
nature of the government’s actions here.
In any event, we do not interpret the APA’s text on a blank
slate. The Supreme Court has explained that “agency action”
as used in the APA is “meant to cover comprehensively every
manner in which an agency may exercise its power.” Am.
Trucking, 531 U.S. at 478; see FTC v. Standard Oil Co. of
Calif., 449 U.S. 232, 238 n.7 (1980). When this circuit has
identified agency action as outside that “broad sweep,” we have
done so because the action complained of had no “concrete
impact . . . whatsoever” and “imposed no obligations and
denied no relief.” Indep. Equip. Dealers Ass’n v. EPA, 372
F.3d 420, 427 (2004). It is self-evident that an agency acting
to eliminate itself is an “exercise [of] its power” with “concrete
impact[s].” Such an action is, moreover, “discrete” in the same
way a rule is. SUWA, 542 U.S. at 62.
The majority disclaims resting on the absence of a memo
alone, Majority Op. 41, noting that even an unstated action
would have to bind the agency to be final and reviewable, and
asserting that Vought’s decision to shut down the CFPB was
not binding, Majority Op. 41-42. The district court, however,
found precisely the opposite. After a two-day evidentiary
hearing, it found that the “consequences” of the shutdown

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decision were “swift”: employees understood that they were to
stand down entirely from their tasks, sweeping terminations of
job positions and contracts quickly followed (with the rest to
follow soon thereafter), and the day-to-day operation of the
Bureau ground to a halt. Vought, 774 F. Supp. 3d at 44-46,
58-60. To conclude otherwise, the majority would have to
establish that those factual findings were clearly erroneous, a
step it pointedly does not take. And the facts rule out the
majority’s alternative embrace of Defendants’ assertion that no
purported shutdown decision was ever finalized. Majority Op.
33-34, 41-42. The district court found that the last-minute
actions Defendants highlight were mere “window dressing”
ahead of the impending preliminary-injunction hearing, not
proof that no shutdown decision had been made. Vought, 774
F. Supp. 3d at 11.
Perhaps the majority means that the elimination of an
agency is “agency action,” but it is not “final” unless it is
communicated or memorialized with sufficient levels of
formality. I doubt it, though, as that position is legally
unsupported and makes no sense on its own terms. What
makes an agency action “final,” and thus reviewable, is that it
“mark[s] the consummation of the agency’s decisionmaking
process” and is an action “by which rights or obligations have
been determined, or from which legal consequences will flow.”
Bennett, 520 U.S. at 177-78 (citations omitted). If an agency
promptly shuts itself down in response to its leadership’s
adoption of a policy to that effect, that action both concludes
the decision-making process and produces legal consequences.
That is true even if the agency leaders fail to commemorate
their decision with a formal announcement.
Binding precedent reaffirms that commonsense
understanding of the scope of APA review. In Venetian Casino
Resort, we held that an agency takes final, reviewable action

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by “adopting [a] policy” that has legal consequences,
regardless of whether or how that policy’s adoption is written
down. 530 F.3d at 931. Defendants do not dispute that basic
principle. They accept that we may “infer from circumstantial
evidence that there’s a decision,” such as the adoption of a
policy, subject to judicial review. Oral Arg. Tr. 78:6-7. The
district court’s finding of just such a decision is enough to meet
that standard. The majority nonetheless endeavors to skirt
Venetian Casino Resort’s binding holding. It argues that,
unlike here, “the policy at issue there was recorded repeatedly,
in different versions of an agency compliance manual,” and
thus “qualified as a rule.” Majority Op. 36 (emphasis omitted).
That is not quite right. We were explicit in Venetian Casino
Resort that the final agency action at issue consisted of
“adopting the policy” of disclosing confidential information
without notice, “not . . . including it in the [m]anual.” 530 F.3d
at 931 (emphasis added). And nowhere did we hint that it
mattered to our holding whether the statements in the manual
separately qualified as a “rule.” To the contrary, we
emphasized that the relevant agency action under review was
“the decision of the Commission to adopt a policy,” not “the
[m]anual itself.” Id.
The majority also insists that Venetian Casino Resort is
distinguishable because the court there reviewed the
policy only when “EEOC was on the cusp of applying it to
harm the plaintiff,” so the policy “implicated none of the
finality or ripeness concerns associated with the shutdown
decision here.” Majority Op. 36-37. The district court here,
however, found that Defendants had already gone beyond “the
cusp” of applying their policy decision against Plaintiffs—the
policy’s implementation was well underway and in overdrive
at the time of the initial consent order. See Vought, 774 F.
Supp. 3d at 58-61. Besides, finality and ripeness are distinct
from the separate requirement of “agency action,” so they

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provide no reason to distinguish Venetian Casino Resort on
that basis.
The majority ultimately relies on language from Biden v.
Texas cautioning against “reviewing an abstract decision apart
from specific agency action, as defined in the APA.” 597 U.S.
at 809; see Majority Op. 28-29 & n.5, 38-39. But nobody is
suggesting that Plaintiffs may obtain judicial review of an
“abstract decision” that is not final agency action—i.e., that is
not “the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent . . . thereof,” 5 U.S.C.
§ 551(13), and is not also an action “by which rights or
obligations have been determined, or from which legal
consequences will flow.” Bennett, 520 U.S. at 177-78 (citation
omitted). The Supreme Court applied that test to identify the
final agency action in Biden v. Texas, and it equally applies
here to defeat the suggestion that Plaintiffs lack a cause of
action under section 706(2).
The finality issue in Biden v. Texas arose because, after
Secretary Mayorkas’s first memorandum terminating the
Remain in Mexico program was enjoined by a district court,
which “found that the agency failed to engage in reasoned
decisionmaking and therefore acted arbitrarily and capriciously
in violation of the APA,” the agency “considered anew”
whether to terminate the program. 597 U.S. at 794-95 (citation
omitted). The agency then released a second memorandum that
also ordered the abolition of the program but included
additional explanation of the agency’s reasons. Id. The Fifth
Circuit refused to treat the second memorandum (with its more
detailed reasoning) as a separate reviewable action, holding
instead that it only “explained” the decision the agency had
already made by terminating the Remain in Mexico program
the first time. Id. at 796-97 (citation and emphasis omitted).
That was error. The Supreme Court recognized that the agency

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took one final, reviewable action by terminating the program
through the first memo, and then elected to “tak[e] new agency
action” after its first action was enjoined in court. Id. at 807-08
(internal quotation marks omitted). The Fifth Circuit should
not have ignored the second action or treated it only “as post
hoc rationalizations” of the first action, as if the object of
review were some underlying “abstract decision” to abolish the
Remain in Mexico program, rather than an actual final agency
action under the APA. Id. at 809-10.
What follows is that Plaintiffs must identify the agency
action that is the subject of their APA challenge. Plaintiffs
have done so. They do not deny that an “abstract decision” on
the part of Vought or another agency leader to abolish the
CFPB at some point in the future would be unlikely to qualify
as final and reviewable. Even decisive identification of a
possible future action is unlikely to count as an exercise of
agency authority, and it is hard to see how any such decision,
by itself, would create rights, obligations, or legal
consequences. What Biden v. Texas shows is that, if Plaintiffs
prevail in this suit, any future decision Defendants might take
to abolish the CFPB is likely to be a distinct agency action,
reviewable on its own terms.
But it decidedly does not follow from Biden v. Texas,
where no such issue was before the Court, that an agency could
categorically evade judicial review by declining to write down
its directives on paper. Nothing in Biden v. Texas is fairly read
to cast doubt on Venetian Casino Resort’s holding that an
agency’s adoption of a policy with binding, legal effect
qualifies as reviewable agency action. And, as previously
noted, I strongly doubt the Supreme Court in Biden v. Texas
understood itself as holding that Secretary Mayorkas could
have abolished the Remain in Mexico program entirely without
exposing the agency to judicial review through the simple

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expedient of proceeding directly to the program’s shutdown
without first drafting any memo. The majority’s oblique hint
to the contrary does not suffice to avoid the binding effect of
Venetian Casino Resort’s holding on the scope of reviewable
agency action, nor has the majority claimed any prerogative not
to follow it.
The majority additionally sees a supposed “mismatch”
between “the final agency action inferred” (i.e., the shutdown
decision) “and the remedy provided” (i.e., enjoining or setting
aside the “constellation of discrete actions” comprising the
shutdown). Majority Op. 42. But that would equally have
prevented review in Regents and Biden v. Texas, as each case
likewise challenged termination of programs that could readily
have been described as constellations of discrete components.
Terminating DACA, for instance, involved halting work
authorizations, ending eligibility for Medicaid, and providing
new enforcement guidance to ICE. See Regents, 591 U.S. at
18-19. But the Court did not hold that review must be had, if
at all, via quasi-mandamus suits under section 706(1). It
understood that the decision to terminate a program is itself an
agency action reviewable under section 706(2). The same
reasoning controls here.
Perhaps most worryingly, the upshot of the government’s
and the majority’s position is that an agency may either
completely evade judicial review of its activities—or,
technically, face challenges only under section 706(1)’s inapt
standard—if it can just keep its shutdown plans non-public
until they are fait accompli. Defendants do not deny that a
unilateral Executive Branch decision to shut down CFPB
would be unlawful. They focus instead on attacking Plaintiffs’
right to challenge their action because—at least as far as we
now know—they decided on the challenged action without the
kind of memorialization the majority requires. In adopting

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Defendants’ preferred gloss on the APA, the majority does not
appear to consider that an agency determined to perform an act
of dubious legality might be disinclined to publicly announce
what it has determined to do.
Rather than grapple with the perverse incentives its
decision creates, the majority insists that section 706(1)
provides an adequate avenue for judicial review of termination
decisions not formally announced that result in withholding or
unreasonably delaying mandatory agency action. Majority Op.
39 n.8. But a section 706(1) remedy is insufficient here for all
the reasons previously explained. See supra Part III.C. To re-
emphasize just one, it provides no relief to plaintiffs injured by
the agency’s complete abdication of its duties in matters
committed to its general discretion—that is, the bulk of what
the Bureau was set up to do. To its credit, the majority rightly
assumes that the CFPB “must engage in some regulation of,
say, the Nation’s largest banks,” Majority Op. 27 (citing
Chaney, 470 U.S. at 833 n.4), even though its rulemaking,
enforcement, and adjudicatory authorities are discretionary.
See 12 U.S.C. §§ 5512(b)(1), 5531(b), 5562, 5563(a). It is
anyone’s guess how that acknowledgement—which is surely
correct—squares with the majority’s insistence that section
706(1) is the only avenue for judicial review.
The government’s preference for a rule that empowers an
agency to stymie meaningful APA review of presumptively
unlawful action is clear. How their approach squares with the
APA’s provision for judicial review of agency action remains,
at least to me, entirely obscure. Defendants seek effective
immunity from meaningful oversight in the federal courts of
even the most consequential actions by agencies, provided the
agencies manage to obfuscate the scope and reasons for their
action—and perhaps the reality that they are acting at all. The
court’s decision to endorse the government’s attack on the

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district court’s preliminary injunction is incompatible with the
core principles underlying APA review and, more generally,
corrosive of the rule of law.
IV.
Even if Plaintiffs lacked a cause of action under the APA,
they have an independent claim under the Constitution against
the Executive’s unilateral action to shut down the CFPB.
Defendants do not dispute the general, well-established
principle that a plaintiff who is injured by unconstitutional
government action may sue to enjoin it even if the action is not
also amenable to suit under the APA. See Dalton v. Specter,
511 U.S. 462, 469 (1994); Trudeau v. FTC, 456 F.3d 178, 190
(D.C. Cir. 2006); see also Webster v. Doe, 486 U.S. 592, 603
(1988). That principle applies “without regard to the particular
constitutional provisions at issue,” including to a “separation-
of-powers claim.” Free Enter. Fund v. Pub. Co. Acct.
Oversight Bd., 561 U.S. 477, 491 n.2 (2010).
Defendants maintain that this case concerns solely
statutory claims. Plaintiffs point out that the legal authority to
eliminate an agency Congress created rests with Congress, so
eliminating the agency by unilateral Executive Branch policy
choice unconstitutionally usurps congressional power. Only
Congress can repeal its own enactments. But in Defendants’
view, that constitutional argument merely repackages
Plaintiffs’ allegations that abolishing the Bureau would violate
the agency’s organic statute. Vought Reply Br. 17-18.
Defendants rest principally on Dalton. A plaintiff has a
constitutional claim, they assert, only insofar as an executive
official either relies solely on an invocation of inherent
constitutional authority, or “on a statute that itself violates the
Constitution.” Vought Reply Br. 17. Challenges to all other
executive activity must be treated as statutory, constrained by

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the availability of statutory causes of action and the limits of
ultra vires review, and subject to resolution by statutory
interpretation alone.
That analysis misapprehends the nature of Plaintiffs’
constitutional claim. Defendants seek to equate this case to
Dalton, but Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579 (1952), is the better analogue. The power Plaintiffs allege
Defendants arrogate to themselves is undisputably beyond the
Executive’s legitimate reach: Neither Defendants nor my
colleagues have ever suggested that Defendants have any
statutory authority—under any statute—to eliminate the CFPB
unilaterally. This case is therefore unlike Dalton, which
affirmed the statutory character of a challenge to the
President’s exercise of a statutory base-closing power where
the plaintiffs’ only objection was that he failed to follow certain
statutorily prescribed procedures when doing so. Rather, like
Youngstown, this case “involve[s] the conceded absence of any
statutory authority” to undertake the challenged action.
Dalton, 511 U.S. at 473. The majority, for its part, avoids that
clear parallel only by repeating the error that plagues its APA
analysis: it insists that the gravamen of Plaintiffs’ complaint is
that the Executive failed to “take care” that the Bureau
performed its statutorily mandated duties, Majority Op. 49, an
equitable constitutional claim it reads Dalton to foreclose. As
previously explained, that framing misconstrues the issue.
Plaintiffs object not to the cessation of discrete and mandatory
agency duties, but to the decision to shutter an agency created
by Congress—an action for which the President’s authority, if
it is to exist at all, “must be found in . . . the Constitution.”
Youngstown, 343 U.S. at 587.
For like reasons, this circuit’s recent decision in Global
Health Council v. Trump, No. 25-5097 (D.C. Cir. Aug. 13,
2025), is inapposite. That case concerned the claim that the

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President’s impoundment of congressionally appropriated
foreign-aid funds violated the separation of powers. Slip op.
15. Relying on Dalton, the panel majority rejected that
equitable constitutional claim as essentially statutory in
character. See id. at 18-24. Notably, however, Congress has
delegated authority to the President, via the Impoundment
Control Act, to propose rescissions or deferrals of appropriated
funds. Id. at 6-7 (citing 2 U.S.C. § 681 et seq.). In Global
Health Council, therefore—as in Dalton—a statute directly
contemplated the presidential action under consideration. See
Global Health Council, No. 25-5097, slip op. at 20-21. Here,
by contrast, no statute contemplates that the Executive might
shutter an agency created by Congress—much less authorizes
him to do so. In ordering the Bureau to shut down, the
President did not act in “excess” of a specific statutory power,
Dalton, 511 U.S. at 472; he acted without any statutory
authorization whatsoever.
This case differs from Youngstown only in that President
Truman conceded in Youngstown that he had ordered the
nationalization of the steel mills but sought to defend his
constitutional authority to do so. 343 U.S. at 585-87. But
Defendants here simply deny the action—ordering the
elimination of the CFPB—that the district court found they had
undertaken without any authority, conditional or otherwise,
from Congress. Nowhere, before the district court or on
appeal, have Defendants identified any statutory or
constitutional authority that permits them to shut down the
CFPB. Nor have they disputed that unilaterally abolishing the
Bureau would “amount[] to lawmaking, a legislative function
which the Constitution has expressly confided to the Congress
and not to the President.” Id. at 582.
To show how Youngstown’s framework applies here,
assume that, although he acknowledged the lack of any statute

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or constitutional provision authorizing him alone to nationalize
the steel mills, President Truman simply denied having ordered
any nationalization. If a court found that, Truman’s denials to
the contrary, he had in fact issued such an order, would the
court lack authority to invalidate his action as a violation of the
constitutional separation of powers? The order’s constitutional
defect would be identical to the defect in the actual Youngstown
case, unaltered by Truman’s hypothetical litigation strategy of
disputing the facts rather than the constitutional character of the
arrogation of power.
Defendants’ apparent theory here is that courts may only
review under the Constitution action of executive officers who
explicitly and exclusively invoke constitutional authority for
their conduct. That theory is artificially cramped and
indefensible. Its implicit premise is that any constitutional
claim evaporates if officers simply deny having taken an action
that all recognize as indisputably unconstitutional. Any rule
that so richly rewards deceptive Executive Branch
gamesmanship has a burden of justification unmet here.
Plaintiffs claim and the district court found that Defendants
exercised a power that no statute delegates to them and that all
parties agree is not theirs under the Constitution, but
Congress’s. Equity therefore permits plaintiffs injured by the
exercise of such a power to seek to have it enjoined in federal
court.
The majority credits Defendants’ effort to distinguish
Youngstown because that “dispute . . . was entirely
constitutional.” Majority Op. 48. But, again, the Youngstown
dispute was only more obviously “constitutional” than this one
insofar as President Truman acknowledged that he exercised a
power of disputed constitutionality, rather than denying that he
wielded a power of undisputed unconstitutionality. Just as
plaintiffs may not “plead around” Dalton’s limitations by

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recasting a statutory claim as a constitutional one, Majority Op.
49 n.11, so, too, the Executive may not neuter an implied
constitutional claim through obfuscatory litigation tactics.
Neither Youngstown nor Dalton requires us to so reward an
agency for acting without the transparency the law demands
from our government.
V.
It suffices to resolve this appeal that we decide
Defendants’ attacks on Plaintiffs’ standing and cause of action.
But it is worth underscoring what is not raised here.
Defendants have never argued that unilateral action to abolish
the CFPB is within the executive’s constitutional authority.
And Defendants have not responded to the APA claim with any
plausible explanation of their conduct as anything other than
arbitrary, capricious, and contrary to law.
Defendants’ remaining argument is that the district court’s
injunction was too broad. Vought Br. 53-58. They made
materially identical arguments in seeking a stay pending
appeal, which we largely accommodated in our partial stay of
the injunction issued earlier this year. NTEU v. Vought, No.
25-5091, 2025 WL 1721068 (D.C. Cir. Apr. 11, 2025). As
Plaintiffs note, the only provision of the preliminary injunction
that Defendants now seriously dispute is the temporary
prohibition on reductions in force—meaning a pause on the
agency’s ability to finalize permanent, mass firings of all or
virtually all of the agency’s staff. When we sought to tailor our
stay to afford maximal leeway to Defendants, consistent with
preliminary relief preserving the status quo pending final
judgment, Defendants immediately took steps to fire 90 per
cent of Bureau staff. See NTEU Br. 51-52. At that juncture,
the district court was on solid ground in concluding that
“[a]llowing [D]efendants to execute their plans without

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preliminary relief will cause irreparable harm to the Bureau,
the plaintiffs in this case, and plaintiffs’ members and
constituents.” Vought, 774 F. Supp. 3d at 79.
RIFs are a typical, lawful personnel-management tool
under normal circumstances. But it can be appropriate to
enjoin “otherwise permissible practices connected with the acts
found to be illegal” so that “relief is effectual.” United States
v. Loew’s, 371 U.S. 38, 53 (1962). As we noted in reimposing
the relevant portion of the district court’s injunction,
preventing Defendants from instituting large-scale RIFs that
would have the effect of terminating many (if not all) of the
Bureau’s functions is necessary here to “ensure[] that
[P]laintiffs can receive meaningful final relief should
[Defendants] not prevail in this [litigation.]” NTEU v. Vought,
No. 25-5091, 2025 WL 1721136, at *1 (D.C. Cir. Apr. 28,
2025).
It will be cold comfort to Plaintiffs if they ultimately
succeed on the merits in their challenge to the CFPB’s
shutdown only to discover that Defendants have put the agency
in a hole from which it can never fully recover. That would be
the effect of the agency’s decisions to fire all or virtually all
employees who once worked at the agency, terminate every
contract that supported their work, purge all the data they
amassed, and ghost all the experts and organizations with
whom they had built up beneficial working relationships.
Without the district court’s preliminary injunction, the agency
would have permanently destroyed the valuable resources on
which the Bureau has long relied to understand and tackle the
problems Congress established it to address. At best, the
defunct agency would face a years-long process of rebuilding.
A preliminary injunction is necessarily a “stopgap
measure” aimed at preserving the status quo, rather than a

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definitive resolution of a case or controversy. Singh, 56 F.4th
at 95 (citations omitted). “Crafting a preliminary injunction is
an exercise of discretion and judgment, often dependent as
much on the equities of a given case as the substance of the
legal issues it presents.” Trump v. Int’l Refugee Assistance
Project, 582 U.S. 571, 579 (2017). The district court did not
abuse its discretion or its reasoned judgment in determining
that restrictions on RIFs were necessary to ensure that there
would still be a Bureau when the time came to rule definitively
on the merits of Plaintiffs’ challenges.
It is uncontested that responsibility for the Bureau’s
operations lies with the President and his chosen, politically
accountable leadership rather than with the judiciary. The
district court has appropriately invited Defendants to
“propose[] reasonable and appropriate modifications to the
preliminary injunction that preserve [their] day-to-day
managerial discretion.” April 3 Order at 1, ECF No. 102. We
have made clear that concerns of overbreadth “do[] not
necessitate the dissolution of the preliminary injunction,” as
“[t]he district court retains the power to modify the injunction
in the exercise of its sound discretion” to accommodate the
enjoined party. Nat’l Wildlife Fed’n v. Burford, 835 F.2d 305,
325-26 (D.C. Cir. 1987). Defendants have not taken up the
district court’s invitation. Indeed, it is striking that, throughout
all their objections to the scope of relief in this case, Defendants
never offered any “workable path in this emergency posture for
narrowing the scope of relief.” Nebraska v. Biden, 52 F.4th
1044, 1048 (8th Cir. 2022). A district court cannot be forced
to “fashion narrower, ostensibly permissible policies from
whole cloth” where Defendants have proposed no such policy
themselves. J.D. v. Azar, 925 F.3d 1291, 1335 (D.C. Cir.
2019). It is up to the government, not the district court, to
“suggest the contours of any such approach.” Id. They have
not.

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I would therefore reject Defendants’ arguments that the
district court abused its discretion in acting to preserve the
status quo while litigation over their unlawful attempt to
terminate the agency continues.
VI.
Throughout this case, Defendants have offered no
convincing explanation for their activity on the week of
February 10. Before the district court, Martinez, with
impressive understatement, suggested that Defendants’ actions
created a “very fluid situation” at the Bureau. Supplemental
Martinez Decl. ¶ 4 (J.A. 241). In oral argument to this court,
Defendants’ counsel described the situation as obscured by “a
fog of confusion.” Oral Arg. Tr. 78:13-14. In this preliminary
posture, in circumstances in which the speed and scope of the
government’s action put enormous pressure on the court and
the litigants, and without the benefit of discovery, the record is
doubtlessly less clear than we might like.
But the evidence that is before us is damning. Many of
Defendants’ undisputed actions cannot reasonably be
understood as advancing any purpose other than the willful
destruction of a congressionally created agency, in the face of
the “bedrock principle[] of constitutional law” that the
executive “may not decline to follow a statutory mandate or
prohibition simply because of policy objections.” In re Aiken
Cnty, 725 F.3d 255, 259 (D.C. Cir. 2013) (Kavanaugh, J.). Had
the district court not acted, there is very little reason to believe
that the CFPB would have existed by the end of March.
The majority does not deny that Defendants acted as the
district court found. Nor do my colleagues dispute that such
actions were unlawful for all the reasons that Plaintiffs have
alleged. Nevertheless, they elect to shield Defendants’
illegality from any effective judicial oversight. Defendants

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announced and celebrated their lawless decision to reporters
and the broader public. But they did not announce their
decision in the pages of the Federal Register, and my
colleagues take that lack of formal recordation as grounds to
vacate the preliminary injunction. Doing so is an invitation to
agency evasion and deception. Our constitutional and statutory
responsibility to hold executive agencies to the law requires
more. I respectfully dissent.

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