Appeals – Stay

Listen to this article

Where a U.S. District Court judge issued a preliminary injunction requested by 21 states challenging the implementation of an executive order regarding the Institute of Museum and Library Services, the Minority Business Development Agency and the Federal Mediation and Conciliation Service, a defense motion for a stay pending appeal should be denied based on the four factors set forth in Nken v. Holder, 556 U.S. 418, 427 (2009).

“On May 13, 2025, the United States District Court for the District of Rhode Island issued a preliminary injunction in response to a suit by twenty-one states. The suit challenges actions by various federal agencies and the officials who head them (collectively, the ‘agency defendants’) to implement Executive Order 14,238, Continuing the Reduction of the Federal Bureaucracy (the ‘EO’), 90 Fed. Reg. 13043. The President of the United States issued the EO on March 14, 2025. The EO, among other things, in Section 2 directs federal officials to ‘eliminate[]’ ‘the non-statutory components and functions’ of several specified federal agencies and ‘reduce’ their ‘statutory functions and associated personnel to the minimum presence and function required by law.’ …

“The relevant agencies in this suit are the Institute of Museum and Library Services (IMLS), the Minority Business Development Agency (MBDA), and the Federal Mediation and Conciliation Service (FMCS). …

“The agency defendants and the President request a stay pending appeal of the District Court’s preliminary injunction. The motion to stay the preliminary injunction is denied. …

“We begin with the first Nken factor, which concerns the appellants’ likelihood of success on the merits in their pending appeal. … Ultimately, for the reasons we will explain, the appellants’ arguments fall short of the requisite ‘strong showing’ that they are likely to succeed on the merits of their challenge to the preliminary injunction. …

“There remain the appellants’ arguments about the three other Nken factors. … As we will explain, those arguments fail to show that the appellants are entitled to a stay of the preliminary injunction. …

“While the appellants have established the possibility of some limited irreparable harm to themselves from the District Court’s preliminary injunction, they have failed to (1) make a strong showing that they are likely to succeed on the merits of their appeal, (2) show that other parties interested in this litigation would not be substantially injured were we to issue the requested stay, or (3) show that the issuance of a stay is in the public interest. We thus cannot conclude that the mere possibility of some limited irreparable harm to the appellants warrants the issuance of a stay. …”

State of Rhode Island, et al. v. Trump, et al. (Lawyers Weekly No. 01-193-25) (32 pages) (Barron, C.J.) Appealed from a decision by McConnell, J., in the U.S. District Court for the District of Rhode Island. Brett A. Shumate, Yaakov M. Roth, Sara Miron Bloom, Eric D. McArthur, Mark R. Freeman, Gerard Sinzdak and Simon G. Jerome on brief for the defendants-appellants; Peter F. Neronha, Attorney General of Rhode Island, Kathryn M. Sabatini, Chief, Civil Division, Special Assistant Attorney General, Katherine Connolly Sadeck, Solicitor General, Keith D. Hoffmann, Chief of Policy, Assistant Attorney General, Natalya A. Buckler, Assistant Attorney General, Paul Meosky, Special Assistant Attorney General, Anne E. Lopez, Attorney General of Hawai’i, David D. Day, Special Assistant to the Attorney General, Kalikoʻonālani D. Fernandes, Solicitor General, Letitia James, Attorney General of New York, Barbara D. Underwood, Solicitor General, Ester Murdukhayeva, Deputy Solicitor General, Kartik Naram, Assistant Solicitor General, Kristin K. Mayes, Attorney General of Arizona, Syreeta A. Tyrell, Assistant Attorney General, Rob Bonta, Attorney General of California, Jay C. Russell, Deputy Attorney General, Thomas S. Patterson, Senior Assistant Attorney General, Anya M. Binsacca, Supervising Deputy Attorney General, Zelda Vassar, Deputy Attorney General, Philip J. Weiser, Attorney General of Colorado, David Moskowitz, Deputy Solicitor General, William Tong, Attorney General of Connecticut, Ashley Meskill, Assistant Attorney General, Kathleen Jennings, Attorney General of Delaware, Ian R. Liston, Director of Impact Litigation, Vanessa L. Kassab, Deputy Attorney General, Kwame Raoul, Attorney General of Illinois, Holly F.B. Berlin, Assistant Attorney General, Aaron M. Frey, Attorney General of Maine, Vivian A. Mikhail, Deputy Attorney General, Anthony G. Brown, Attorney General of Maryland, Julia Doyle, Solicitor General, Keith M. Jamieson, Assistant Attorney General, Andrea Joy Campbell, Attorney General of Massachusetts, Katherine Dirks, Chief State Trial Counsel, Dana Nessel, Attorney General for the People of Michigan, Neil Giovanatti, BreAnna Listermann, Assistant Attorneys General, Keith Ellison, Attorney General of Minnesota, Jacob Harris, Assistant Attorney General, Aaron D. Ford, Attorney General of Nevada, Heidi Parry Stern, Solicitor General, Matthew J. Platkin, Attorney General of New Jersey, Joshua Bohn, Max Lesser, Deputy Attorneys General, Raúl Torrez, Attorney General of New Mexico, Anjana Samant, Deputy Counsel for Impact Litigation, Dan Rayfield, Attorney General of Oregon, Brian Simmonds Marshall, Senior Assistant Attorney General, Charity R. Clark, Attorney General of Vermont, Ryan P. Kane, Deputy Solicitor General, Nicholas W. Brown, Attorney General of Washington, Kate S. Worthington, Sarah E. Smith-Levy, Assistant Attorneys General, Joshua L. Kaul, Attorney General of Wisconsin, Colin T. Roth, Assistant Attorney General, on brief for the plaintiffs-appellees (Docket No. 25-1477) (Sept. 11, 2025).

Click here to read the full text of the opinion.