Agency Implementation of Presidential Directives Remains APA-Reviewable Absent “No Discretion” and Requires Developed Stay Showing

1. Introduction

Orr v. Trump (1st Cir. June 5, 2026) arises from a challenge by transgender and non-binary Americans—representing two certified classes—to a U.S. Department of State policy governing passport sex markers (the “Passport Policy”). The Passport Policy was promulgated in connection with President Donald J. Trump’s Executive Order No. 14,168, which instructed the Secretary of State to implement changes requiring passports to “accurately reflect the holder’s sex.” Under the prior Department policy, applicants could select “M,” “F,” or “X” without the marker being required to match sex assigned at birth. The new Passport Policy would require passports to state the bearer’s biological sex at birth.

The district court preliminarily enjoined enforcement of the Passport Policy, concluding (among other things) that plaintiffs were likely to succeed on an Administrative Procedure Act (“APA”) claim that the policy was arbitrary and capricious, and also finding an independent basis for relief in an animus-based Equal Protection Clause claim. The government sought an emergency procedural remedy: a stay pending appeal of the preliminary injunction.

The First Circuit’s decision is not a final merits ruling on the legality of the Passport Policy. It is an order denying the government’s motion for a stay pending appeal. Even so, it meaningfully clarifies (i) what a movant must do to justify a stay, (ii) the continued presumptive APA-reviewability of agency action taken to implement presidential directives, and (iii) the consequences of underdeveloped arguments—especially where a district court relied on multiple independent grounds for injunctive relief.

2. Summary of the Opinion

The First Circuit denied the government’s motion for a stay pending appeal. Applying the four-factor framework for stays pending appeal, the court held the government failed to make the required “strong showing” of likely success on the merits and failed to demonstrate that the balance of harms and public interest favored a stay.

On likelihood of success, the court concluded the government did not persuasively show that the Passport Policy is categorically unreviewable under the APA merely because it implements a presidential executive order. The court also emphasized that the district court’s preliminary injunction rested on two independent bases (APA and animus-based equal protection), and that the government did not meaningfully engage with the district court’s equal protection analysis in its stay papers.

On irreparable harm and equitable balance, the court contrasted the government’s asserted institutional interests with district-court factual findings (based on affidavits and expert declarations) that class members faced immediate, irreparable harms, including increased risk of harassment and violence while traveling.

3. Analysis

3.1 Precedents Cited

Nken v. Holder, 556 U.S. 418 (2009)

Nken v. Holder supplies the overarching standard for stays pending appeal and is used here for two key propositions: (1) a stay is “extraordinary relief,” and (2) the “first two factors” (likelihood of success and irreparable injury) “are the most critical.” The First Circuit uses Nken to frame the government’s burden and to justify denying relief once the government failed to make a strong merits showing.

Does 1-3 v. Mills, 39 F.4th 20 (1st Cir. 2022) and Bos. Parent Coal. for Acad. Excellence Corp. v. Sch. Comm. of Bos., 996 F.3d 37 (1st Cir. 2021)

Does 1-3 v. Mills (quoting Bos. Parent Coal. for Acad. Excellence Corp. v. Sch. Comm. of Bos.) provides the First Circuit’s articulation of the four-factor stay test within the circuit. The court uses these cases to structure the analysis and to underscore that each factor must be addressed with substance, not conclusory assertions.

Franklin v. Massachusetts, 505 U.S. 788 (1992)

The government relied on Franklin v. Massachusetts for the proposition that presidential actions are not reviewable under the APA. The First Circuit accepted the baseline point that Franklin limits APA review of the President’s own actions, but stressed that the government was seeking to extend Franklin further—effectively to block APA review of agency action implementing a presidential directive. The court found that extension insufficiently supported on the government’s submissions.

Bradford v. Department of Labor, 101 F.4th 707 (10th Cir. 2024), cert. denied, 145 S. Ct. 1047 (2025)

The government also cited Bradford v. Department of Labor to argue the Passport Policy was “compelled by” the Executive Order and therefore unreviewable. The First Circuit distinguished Bradford on the ground emphasized by the Tenth Circuit: whether the executive directive left the agency with “no discretion.” Here, the district court found the Department made “independent determinations” in formulating the Passport Policy, undermining any claim that the agency was merely a mechanical instrument of presidential will.

New York v. Trump, 133 F.4th 51 (1st Cir. 2025); Nebraska v. Su, 121 F.4th 1 (9th Cir. 2024); Chamber of Com. of U.S. v. Reich, 74 F.3d 1322 (D.C. Cir. 1996)

These cases form the decision’s most consequential doctrinal backbone on reviewability:

  • New York v. Trump is cited for the proposition that agency action carrying out a presidential directive is ordinarily subject to APA review.
  • Nebraska v. Su is quoted for a broader statement: the Supreme Court “has never excepted a final rule from APA review because it carried out a presidential directive.”
  • Chamber of Com. of U.S. v. Reich is a leading D.C. Circuit decision recognizing that agencies do not escape APA constraints merely because the President directed the action.

Collectively, these authorities support the First Circuit’s skepticism toward an “executive-order shield” against APA review—especially where the agency exercised policy discretion.

New Jersey v. Trump, 131 F.4th 27 (1st Cir. 2025)

New Jersey v. Trump appears twice and functions as a procedural discipline tool. First, it is cited for waiver: arguments not meaningfully developed can be treated as forfeited. Second, it is used to reinforce that a stay movant must address the district court’s specific harm findings rather than speak in generalities. The First Circuit uses New Jersey to justify denying relief where the government offered only cursory engagement with key parts of the district court’s reasoning (particularly on the animus-based equal protection theory and irreparable harm).

United States v. Skrmetti, 145 S. Ct. 1816 (2025)

The court references United States v. Skrmetti primarily to explain what it did not need to decide at the stay stage. The government focused on a sex-discrimination claim and argued Skrmetti affected that claim. The First Circuit noted that the district court had already identified the APA claim and the animus-based Equal Protection Clause claim as independent bases supporting the preliminary injunction—so even if Skrmetti mattered to one theory, it would not carry the government’s burden unless it undermined all independent grounds supporting the injunction.

NetChoice, LLC v. Fitch, No. 25A97, 2025 WL 2350189 (U.S. Aug. 14, 2025) (Kavanaugh, J., concurring)

NetChoice, LLC v. Fitch is cited to support the conclusion that the government failed to show the “balance of harms and equities” favored disturbing the status quo. By invoking Justice Kavanaugh’s concurrence, the First Circuit bolsters the principle that where concrete, immediate harms to affected individuals are supported by evidence and factual findings, generalized institutional assertions are often insufficient to justify emergency relief.

3.2 Legal Reasoning

(a) The stay standard is demanding—and the movant must do the work

The First Circuit’s analysis reflects a recurring theme: a stay is not granted because an appeal has been filed, nor because the government asserts high-level interests. The movant must make a strong showing on likely success and irreparable injury and must engage the district court’s reasoning. Here, the government’s submissions were repeatedly characterized as underdeveloped—e.g., “cursory” APA merits assertions and only “two sentences” addressing the animus-based equal protection ruling.

(b) APA reviewability: implementing an executive order does not ordinarily immunize an agency

The government argued the Passport Policy was unreviewable because it was “compelled by” the Executive Order, invoking Franklin v. Massachusetts and Bradford v. Department of Labor. The First Circuit rejected the notion that this alone defeats APA review:

  • The court reaffirmed that agency action implementing a presidential directive is ordinarily subject to APA review, citing New York v. Trump, Nebraska v. Su, and Chamber of Com. of U.S. v. Reich.
  • The court distinguished Bradford because the Executive Order here did not leave the Department with “no discretion”; rather, the Department made “independent determinations” in formulating the Passport Policy.

(c) The court highlights a “first impression” question—but refuses to resolve it on thin briefing

The government advanced a narrower theory: even if agency implementation is typically reviewable, it becomes unreviewable when a statute commits the action to the President’s sole discretion, and it suggested that title 22, section 211a (passport contents) fits that bill. The First Circuit did not foreclose the argument; instead, it emphasized the government had not provided controlling Supreme Court or appellate authority extending Franklin to bar review of agency action that is otherwise covered by the APA, solely because a President exercised “sole discretion.” The court characterized this extension as apparently “a matter of first impression in the federal courts of appeals” and held that on the submissions presented, the government did not make the required “strong showing.”

This approach is methodologically important: at the emergency stay stage, a novel doctrinal leap—especially one that would significantly contract judicial review—requires careful, developed support.

(d) Multiple independent grounds: a stay movant must address each dispositive basis

The district court relied on two independent grounds for preliminary relief: the APA arbitrary-and-capricious claim and an animus-based Equal Protection Clause claim. The First Circuit held that the government’s inability to show likely success on the APA issues was enough to defeat the stay. It also noted, separately, the government’s failure to meaningfully engage the animus analysis. The implicit lesson is practical: when an injunction rests on multiple independent grounds, the stay movant must confront each one, or the motion fails even if one ground is plausibly vulnerable.

(e) Irreparable harm and equities: evidentiary findings matter, and generalized interests may not suffice

The First Circuit credited the district court’s factual findings—based on affidavits and expert declarations—of “immediate and irreparable harms,” including increased risk of harassment and violence while traveling. It contrasted these concrete harms with the government’s mostly institutional, long-term assertions and emphasized the government did not contest plaintiffs’ evidence in the district court. This fed directly into the conclusion that the balance of harms and public interest did not justify “upending the status quo.”

3.3 Impact

(1) APA litigation involving executive orders

The order strengthens (at least at the stay stage) a key proposition: agencies generally remain bound by the APA even when implementing presidential directives, particularly where the agency exercised discretion in translating broad executive instructions into operational policy. Future litigants challenging executive-order-driven agency policies will likely cite this decision to resist threshold arguments for nonreviewability.

(2) The “Franklin extension” debate is now explicitly framed as a novel appellate question

By calling the government’s theory—extending Franklin to shield otherwise-reviewable agency action based on presidential “sole discretion”—a likely issue of first impression, the First Circuit has effectively identified and named a doctrinal fault line for future appellate development. Other circuits may now confront (and either adopt or reject) that extension with more extensive briefing on the interaction between the APA, statutory delegations to the President, and separation-of-powers concerns.

(3) Stay practice: consequences of cursory briefing and failure to grapple with district-court reasoning

The opinion is also a procedural precedent in tone and substance: stay motions require targeted engagement with the district court’s analysis and factual findings. The First Circuit’s emphasis on “two sentences” and “cursory assertion” signals that insufficiently developed arguments can be dispositive, particularly when the injunction has multiple independent supports.

(4) Practical effects in passport and civil-rights contexts

While not a final merits adjudication, denial of a stay preserves the preliminary injunction, maintaining access (for the certified classes) to passports not restricted to sex assigned at birth while the appeal proceeds. The decision’s harms analysis—recognizing travel-related safety risks—may influence how courts evaluate irreparable harm in future cases involving identity documents and compelled disclosure.

4. Complex Concepts Simplified

  • Stay pending appeal: A temporary pause of a lower court’s order while an appeal is ongoing. It is “extraordinary relief,” not automatic. The movant must strongly justify it.
  • Preliminary injunction: An early, temporary court order stopping a challenged policy before final judgment, typically to prevent irreparable harm.
  • APA “arbitrary and capricious” (5 U.S.C. § 706(2)(A)): A standard requiring agencies to provide reasoned explanations and consider important aspects of the problem. A policy can be unlawful if it is irrational, inadequately explained, or ignores relevant evidence.
  • APA reviewability: Most “final agency action” can be reviewed in court. The President is generally not an “agency” under the APA (a point associated with Franklin v. Massachusetts), but agencies usually remain reviewable even when acting under presidential direction.
  • “No discretion” concept: If an executive directive leaves an agency with no policy choice—only a ministerial duty—the agency may argue it is not meaningfully responsible for the challenged decision. The First Circuit treated the presence of “independent determinations” by the Department as cutting against that characterization.
  • Animus-based Equal Protection Clause claim: A theory that a policy violates equal protection because it is driven by unconstitutional hostility toward a targeted group, not merely because it has disparate effects.
  • Waiver/forfeiture: Courts may treat arguments as waived when a party does not develop them with meaningful analysis and support, especially when responding to a detailed lower-court ruling.

5. Conclusion

Orr v. Trump denies a stay pending appeal of a preliminary injunction against a State Department passport sex-marker policy tied to an executive order. The First Circuit’s central takeaway is procedural and structural: a stay requires a strong, developed showing on the merits and harms, and arguments—especially novel ones extending Franklin v. Massachusetts—cannot be asserted in skeletal form. Substantively, the order reinforces that agency action implementing presidential directives is ordinarily APA-reviewable, particularly where the agency exercised discretion. Finally, the decision underscores the practical importance of evidentiary records of immediate harm in emergency litigation, and the necessity of addressing each independent ground supporting an injunction.