Agency Implementation of Presidential Orders Remains Reviewable Under the APA Absent a No‑Discretion Mandate: The First Circuit’s Denial of a Stay in Orr v. Trump

Introduction

This commentary analyzes the First Circuit’s order in Orr v. Trump (No. 25-1579, Sept. 4, 2025), denying the federal government’s motion for a stay pending appeal of a preliminary injunction. The underlying litigation challenges a State Department “Passport Policy,” promulgated following Executive Order No. 14,168, that would require U.S. passports to display the bearer’s biological sex at birth. Under the preexisting policy, passport applicants could select “M,” “F,” or “X” without the designation needing to match biological sex.

The plaintiffs—transgender and non-binary Americans certified in two classes—allege violations of the Administrative Procedure Act (APA) and the Equal Protection Clause. The district court preliminarily enjoined enforcement of the Passport Policy based on two independent grounds: (1) a likelihood of success on their APA arbitrary-and-capricious claim and (2) a likelihood of success on an animus-based Equal Protection claim. The government sought a stay pending appeal, arguing among other things that the policy was unreviewable under the APA because it was compelled by the President’s Executive Order and because the passport statute vests discretion in the President.

The First Circuit denied the stay, emphasizing both the government’s failure to make a strong showing of likely success on the merits and the district court’s factual findings of immediate, irreparable harm to the plaintiff classes.

Summary of the Judgment

Applying the familiar four-factor test for a stay pending appeal, the First Circuit held the government did not meet its burden. Two aspects of the ruling stand out:

Likelihood of success on the merits: The government did not make a strong showing that the Passport Policy is unreviewable under the APA simply because it implements a presidential directive. The court underscored that agency actions carrying out an Executive Order are “ordinarily subject to APA review,” and it found no controlling authority extending Franklin v. Massachusetts’s bar on APA review of presidential action to shield agency action—even where a statute speaks in terms of the President’s discretion. The court also noted the government did not meaningfully argue that the Passport Policy would survive APA review on the merits and engaged only superficially with the district court’s animus-based Equal Protection analysis.
Irreparable harm and balance of equities: The government articulated long-term institutional interests in favor of a stay, but the district court found concrete, immediate, and unrebutted evidence that the policy’s enforcement would expose transgender and non-binary people to increased risks of harassment and violence while traveling abroad. On this record, the balance of harms and the public interest favored maintaining the injunction.

Because the government failed on the most critical factors—likelihood of success and irreparable harm—the court denied the stay, preserving the district court’s preliminary injunction pending appeal.

Analysis

Precedents Cited and Their Influence

Nken v. Holder, 556 U.S. 418 (2009): Establishes the four-factor stay framework and emphasizes that the first two factors—likelihood of success and irreparable harm—are “the most critical.” The First Circuit’s analysis hewed closely to Nken by focusing on these determinants.
Franklin v. Massachusetts, 505 U.S. 788 (1992): Holds that the President is not an “agency” under the APA, so presidential actions are not reviewable under the APA. The government sought to leverage Franklin to shield the State Department’s policy from APA review. The First Circuit rejected any automatic extension of Franklin to agency actions, noting the absence of controlling precedent to that effect.
Bradford v. Department of Labor, 101 F.4th 707 (10th Cir. 2024), cert. denied, 145 S. Ct. 1047 (2025): The government leaned on Bradford to argue that an agency action compelled by an Executive Order is unreviewable. The First Circuit distinguished Bradford on a key factual/legal axis: unlike in Bradford, Executive Order 14,168 did not eliminate the State Department’s discretion. The district court had found that State made several independent determinations in formulating the Passport Policy, and the government did not contest that point in its stay briefing.
New York v. Trump, 133 F.4th 51, 70 n.17 (1st Cir. 2025): Cited for the proposition that agency actions implementing presidential directives are ordinarily reviewable under the APA. This intra-circuit authority powerfully undercut the government’s non-reviewability theory.
Nebraska v. Su, 121 F.4th 1, 15 (9th Cir. 2024): Reinforces that the Supreme Court has never exempted an otherwise final agency rule from APA review merely because it carries out a presidential directive. This cross-circuit alignment strengthens the First Circuit’s stance.
Chamber of Commerce v. Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996): Recognizes judicial review of agency action taken in response to Executive Orders where the challenge turns on statutory constraints. Again, this supports the principle that Executive Orders do not generally immunize implementing agencies from APA scrutiny.
Does 1–3 v. Mills, 39 F.4th 20, 24 (1st Cir. 2022) and Boston Parent Coalition for Academic Excellence v. School Committee of Boston, 996 F.3d 37, 44 (1st Cir. 2021): First Circuit authorities restating the stay factors and guiding the court’s application of Nken.
New Jersey v. Trump, 131 F.4th 27, 41–42 (1st Cir. 2025): Used to highlight waiver/forfeiture principles in the stay context where the moving party fails to engage with adverse reasoning below. Here, the government’s two-sentence challenge to the animus finding was insufficient.
NetChoice, LLC v. Fitch, No. 25A97, 2025 WL 2350189, at *1 (U.S. Aug. 14, 2025) (Kavanaugh, J., concurring): Invoked for the notion that where the lower court finds concrete irreparable harm and the movant does not adequately contest those findings, the balance of harms and equities disfavors a stay that would upend the status quo.
United States v. Skrmetti, 145 S. Ct. 1816 (2025): The government focused on Skrmetti’s implications for a separate sex-discrimination claim, but the district court had expressly held that the APA and animus-based Equal Protection rulings independently supported the injunction. The First Circuit therefore did not need to address Skrmetti to deny the stay.

Legal Reasoning

The First Circuit’s reasoning proceeds in two principal steps.

Likelihood of success on the merits:
- APA reviewability of agency action implementing an Executive Order. The court reaffirmed that agency actions taken to implement presidential directives are ordinarily reviewable under the APA. Crucially, the court declined to extend Franklin’s bar on APA review of presidential action to agency action, noting the government identified no Supreme Court or federal appellate decision embracing that extension. The government’s alternative theory—that 22 U.S.C. § 211a commits passport content decisions to the President’s sole discretion—was not sufficiently developed to carry its burden, particularly absent precedent applying Franklin in the expansive manner the government urged.
- Discretion matters. The First Circuit distinguished the Tenth Circuit’s Bradford decision because the Executive Order here did not eliminate all agency discretion; the Department made “independent determinations” in crafting the Passport Policy. The presence of discretion typically means there is agency judgment to review under the APA.
- On-the-merits APA defense was cursory. Even assuming reviewability, the government barely argued that the Passport Policy could survive arbitrary-and-capricious review—a separate failure to show likely success. The court also observed that the government did not argue that the APA claim could not independently support the preliminary injunction.
- Equal Protection (animus) claim left largely unaddressed. The district court identified four overarching considerations supporting a likelihood of success on an animus-based Equal Protection claim, yet the government devoted only two sentences to contesting that analysis. Under circuit practice, that level of underdevelopment fails to show a likelihood of success and can amount to waiver for purposes of extraordinary relief.
Irreparable harm, balance of equities, and the public interest:
- The government highlighted long-term institutional interests in uniform passport content and executive branch prerogatives, but the district court made specific factual findings—grounded in affidavits and expert declarations—that enforcing the policy would immediately increase the risk of harassment and violence for transgender and non-binary travelers. The government did not contest that record in the district court.
- Given those unrefuted findings, the balance of harms and public interest favored denying a stay. As the Supreme Court has recently cautioned, a stay that would upend the status quo and expose parties to identified immediate harms is disfavored absent a compelling showing.

Impact and Forward-Looking Implications

APA review and Executive Orders: The order fortifies a significant administrative-law principle: Executive Orders do not, by themselves, insulate implementing agency actions from APA review. Unless an Executive Order truly leaves an agency with “no discretion,” agency implementation remains subject to the APA’s procedural and substantive constraints. This framing narrows the potential reach of Bradford to rare, no-discretion contexts and cautions agencies against invoking Executive Orders as a shield from judicial scrutiny.
Boundary of Franklin v. Massachusetts: The First Circuit’s refusal to extend Franklin to agency action—especially where agency discretion persists—signals that efforts to repackage agency rules as “presidential” will face skepticism. The court also flagged that any such extension would be a matter of first impression at the appellate level, foreclosing a “strong showing” at the stay stage.
Animus-based Equal Protection claims remain viable and independent: Even as debates continue over the standard of review for sex- or gender-identity-based classifications, this order underscores that an animus theory can independently sustain preliminary relief. Parties opposing injunctions must engage the animus record and reasoning head-on.
Litigation strategy lesson: The decision is a cautionary tale for stay applicants. Cursory treatment of core issues—reviewability, APA merits, and constitutional claims—will not satisfy the “strong showing” needed under Nken. Robust development in the district court and on appeal is critical.
Practical consequences for passports: The injunction remains in place, preserving the pre-2025 self-identification regime (M, F, or X) during the appeal. That stability has immediate safety and dignity implications for transgender and non-binary passport holders and applicants, especially in international travel contexts.
Potential for future circuit tension: While the First Circuit distinguished rather than rejected Bradford, the different emphases could foreshadow further appellate development on when, if ever, Executive Orders render agency actions unreviewable. Clearer Supreme Court guidance may be sought in an appropriate merits posture.

Complex Concepts Simplified

Stay pending appeal: A request to pause a lower court’s order while the appeal proceeds. Courts weigh four factors: (1) likelihood of success on appeal, (2) irreparable harm to the movant absent a stay, (3) harm to other parties if a stay is granted, and (4) the public interest. The first two are the most important.
APA “arbitrary and capricious” review: A court sets aside agency action if the agency failed to examine relevant data, ignored important aspects of the problem, offered explanations contrary to the evidence, or failed to connect facts to its choices. Agencies must show reasoned decision-making.
Reviewability and Franklin: The APA does not apply to the President because the President is not an “agency.” Franklin thus bars APA review of presidential actions themselves. But agencies are “agencies,” and their actions are presumptively reviewable unless Congress clearly precludes review or the action is committed to agency discretion by law. The question here was whether presidential direction converts agency implementation into unreviewable presidential action. The First Circuit said no—absent a showing that the agency had no discretion.
“Committed to the President’s sole discretion” statutes: Some statutes vest certain decisions in the President. Even so, when an agency takes implementing steps, courts generally ask whether the agency exercised discretion or judgment that can be reviewed under the APA. The government’s argument to extend Franklin to those agency actions is, at best, unsettled and did not warrant a stay.
Animus-based Equal Protection: Government action motivated by hostility toward a group (animus) can violate the Equal Protection Clause even under rational-basis review. Courts infer animus from factors like statements by decisionmakers, procedural departures, poor fit between means and ends, and burdens placed on a targeted class.
Status quo in stay practice: Stays are meant to preserve the status quo during appeal. Where the lower court has found immediate, concrete harms and the movant does not meaningfully refute them, courts are reluctant to grant stays that would impose those harms pending appeal.

Conclusion

The First Circuit’s order in Orr v. Trump establishes an important principle at the intersection of executive power and administrative law: agency actions implementing presidential directives remain subject to APA review unless the Executive Order truly leaves the agency with no discretion. The court’s insistence on meaningful appellate engagement—both on reviewability and on the merits—coupled with its deference to unrefuted findings of immediate harm, provides a careful and disciplined application of Nken’s stay framework.

Practically, the decision keeps the prior passport regime in place during the appeal and signals that neither Executive Orders nor broad invocations of presidential discretion will automatically shield agency policies from judicial scrutiny. Strategically, it underscores the need for fully developed arguments and evidence at the stay stage, especially where constitutional claims of animus and concrete harms to vulnerable groups are in play.

Key takeaway: There is no “presidential directive” exception to the APA. Unless an Executive Order deprives the agency of all discretion, courts will review the agency’s implementation for compliance with the APA—and will preserve injunctions where the government does not make a strong showing on the merits or irreparable harm.