Appeals – Stay – HHS RIF

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Where the government has moved for a stay pending appeal of a U.S. District Court order clarifying an earlier order that preliminarily enjoined the U.S. Department of Health and Human Services from further implementing its reduction-in-force and restructuring plans for four of its sub-agencies, the stay motion should be denied because the government has failed to show a likelihood of success on the merits.

“As the party seeking a stay pending appeal, the government bears the burden of justifying the extraordinary relief it requests. See Nken v. Holder, 556 U.S. 418, 433-34 (2009). … In evaluating the government’s stay motion, we must consider four factors: (1) whether the government has made ‘a strong showing that [it] is likely to succeed on the merits’ of its appeal; (2) whether the government has shown that it ‘will be irreparably injured absent a stay’; (3) ‘whether issuance of the stay will substantially injure the other parties interested in the proceeding’; and (4) ‘where the public interest lies.’ … The first two factors ‘are the most critical.’ …

“The government relies heavily in its motion papers on the Supreme Court’s recent interim order granting a stay in McMahon v. New York, 145 S. Ct. 2643 (2025). …

“We begin with the first stay factor under the Nken test: whether the government has made a ‘strong showing’ that it is likely to succeed on the merits of its appeal. The government makes three merits-based arguments in its stay motion: (1) that the plaintiffs lack Article III standing, (2) that the Civil Service Reform Act (CSRA) divests the district court of jurisdiction to hear this case, and (3) that, under the APA, the plaintiffs cannot challenge the agency action at issue because it is both programmatic and not final, and, in addition, it is neither arbitrary and capricious nor contrary to law. …

“Having failed to show a likelihood of success on the merits, the government’s two pages of argument on the three remaining Nken factors do not meet its burden to justify a stay. As to the second prong of the Nken test, we do credit the government’s contention that it would be irreparably harmed if it were erroneously required, during the pendency of the preliminary injunction, to pay salaries to employees it would otherwise terminate under the RIF. … Nevertheless, we conclude that this argument, like the government’s contention that irreparable harm arises from encroachment on its Article II authority, cannot be enough to meet the government’s burden for a stay when the government has failed to make a strong showing of a likelihood of success on the merits — that is, when it has not established that it is likely to prevail on appeal in establishing the lawfulness of its challenged actions. …

“For all these reasons, the motion for a stay pending appeal is denied.”

State of New York, et al. v. Kennedy, et al. (Lawyers Weekly No. 01-198-25) (10 pages) (Docket No. 25-1780) (Sept. 17, 2025).

Click here to read the full text of the opinion.