Waiver Rules Govern Stay Appeals: First Circuit Limits Reliance on Supreme Court Interim Orders and Enforces Rule 8 in Denying Stay of Injunction Against Agency Dismantlement

Introduction

This commentary examines the First Circuit’s decision in State of Rhode Island v. Trump (No. 25-1477, Sept. 11, 2025), denying a motion to stay a preliminary injunction that blocked implementation of Section 2 of Executive Order 14,238, “Continuing the Reduction of the Federal Bureaucracy,” as applied to three congressionally created agencies: the Institute of Museum and Library Services (IMLS), the Minority Business Development Agency (MBDA), and the Federal Mediation and Conciliation Service (FMCS).

Twenty-one states alleged that federal officials implemented the Executive Order by firing, reassigning, or placing on leave all or nearly all personnel at the agencies and by cancelling a broad array of grants, effectively disabling the agencies’ statutory missions. The district court enjoined further implementation, ordered restoration of personnel and resumption of grant processing and disbursement in plaintiff states, and required reversal of policies implementing the Executive Order. The federal defendants (including the President in his official capacity) sought a stay pending appeal. The First Circuit denied that extraordinary relief.

Two themes define the decision. First, the court insists that stay applicants cannot rely on legal theories not presented to the district court, expressly enforcing Federal Rule of Appellate Procedure 8’s requirement to seek relief below and the ordinary rule against raising new arguments on appeal. Second, the court clarifies that recent Supreme Court interim (emergency) orders granting stays in superficially similar disputes do not automatically govern unless the case is truly “like” in terms of facts and arguments presented (citing Trump v. Boyle).

Summary of the Opinion

Applying the four Nken v. Holder factors for a stay pending appeal, the court held:

Likelihood of success on the merits: The government failed to make a strong showing. The plaintiffs had Article III standing based on concrete financial and service-delivery harms. More importantly, the court sustained the preliminary injunction on the plaintiffs’ constitutional Take Care Clause/separation-of-powers theory because the government waived its principal counter-arguments (that such claims are barred by Dalton v. Specter or channeled by the CSRA) by failing to raise them in the stay motion below.
Irreparable harm to the government: The government’s assertions that reinstating staff would cause irreparable harm were unpersuasive on this record, though the court credited some limited irreparable harm associated with compelled disbursement of grant funds and unrecoverable salary payments (tracking the Supreme Court’s analysis in American Public Health Association and Department of Education v. California).
Substantial injury to other parties: The states showed substantial, non-speculative harms from the agencies’ near-total disablement (loss of mediation services, research and data, programmatic support) and from terminated grants (closures, layoffs, cancelled programming and contracts).
Public interest: The court reiterated there is generally no public interest in perpetuating unlawful agency action, especially where the government did not affirmatively argue its actions were lawful on the merits at this stage.

Distinguishing recent Supreme Court stays in McMahon v. New York and the partial stay in American Public Health Association, the court concluded those orders did not compel a stay here: the government had not pressed key arguments (standing; agency not disabled), and the facts (near-total staffing eliminations) materially differed.

Result: Motion for stay denied.

Analysis

Precedents Cited and Their Influence

Nken v. Holder, 556 U.S. 418 (2009) and Hilton v. Braunskill, 481 U.S. 770 (1987): Provide the governing four-factor framework for a stay pending appeal; the first two factors (likelihood of success and irreparable harm) are “most critical.” The court meticulously walks through each factor and emphasizes that a stay is “extraordinary” and “not a matter of right.”
Trump v. Boyle, 145 S. Ct. 2653 (2025): Supreme Court cautioned that interim orders are not conclusive on the merits but “inform how a court should exercise its equitable discretion in like cases.” The First Circuit uses this to confine the persuasive force of recent Supreme Court stays to genuinely similar fact-and-argument settings.
McMahon v. New York, 145 S. Ct. 2643 (2025) (stay mem.) and Somerville Public Schools v. McMahon, 139 F.4th 63 (1st Cir. 2025): The Supreme Court stayed a district court injunction after the First Circuit had declined a stay in a DOE RIF case. Here, the First Circuit carefully explains why McMahon does not control: the government there argued lack of standing and lack of agency disablement (many employees remained), whereas here the government made neither argument and the district court found near-total disablement (which the government did not contest).
National Institutes of Health v. American Public Health Association, No. 25A103, 2025 WL 2415669 (U.S. Aug. 21, 2025) (per curiam) and Department of Education v. California, 145 S. Ct. 966 (2025) (per curiam): The Supreme Court partially stayed remedies that effectively enforced payment obligations under grants, relying on the Tucker Act’s jurisdictional bar for APA claims “based on” money-damages-like obligations and recognizing irreparable harm where funds “cannot be recouped.” The First Circuit credits the fiscal irreparable harm argument as to grants, yet still denies a stay overall due to weak merits showing and strong countervailing equities and public interest.
Standing cases: Raines v. Byrd, Lujan v. Defenders of Wildlife, Czyzewski v. Jevic Holding Corp., Crossroads Grassroots Policy Strategies v. FEC, TransUnion LLC v. Ramirez, Clapper v. Amnesty International USA. The court situates the states’ injuries as classic, concrete harms: loss of funds and loss of services on which they rely. Notably, the government did not press the speculative injury or informational-injury theories it had used elsewhere.
Dalton v. Specter, 511 U.S 462 (1994) and Elgin v. Department of Treasury, 567 U.S. 1 (2012): The government tried to deploy these (in the court of appeals) to argue constitutional claims were merely repackaged statutory claims barred by Dalton and to channel employment disputes through the CSRA. The First Circuit refuses to consider these theories because they were not presented to the district court in the stay motion, underscoring appellate waiver at the stay stage.
Appellate preservation / Rule 8 cases: New Jersey v. Trump, Acevedo-García v. Vera-Monroig, Philip Morris, Inc. v. Harshbarger, United States v. Lindsey, Mullane v. DOJ, Menninger v. PPD Development. Collectively, these support the principle that stay applicants must present arguments first to the district court; raising new arguments on appeal undermines Rule 8 and will not justify extraordinary relief.
Irreparable harm and equities: Philip Morris USA Inc. v. Scott (Scalia, J., in chambers), Sampson v. Murray, Vaquería Tres Monjitas, Inc. v. Irizarry, Automatic Radio Mfg. Co. v. Ford Motor Co., League of Women Voters v. Newby, and the First Circuit’s own Somerville Public Schools and New York v. Trump, 133 F.4th 51 (1st Cir. 2025). These authorities ground the court’s nuanced treatment of fiscal harm (sometimes irreparable), the insufficiency of alleged staffing-management harms without record support, and the recognition that lost services, program closures, and layoffs constitute substantial, often irreparable, harm to the states.

Legal Reasoning

Framing and burden: A stay is an “intrusion” and not a right; the moving party must make a “strong showing” on likelihood of success and demonstrate the other Nken factors favor a stay.
Standing is concrete and uncontroverted: The states alleged (and the district court found) real harms: cancelled grants causing layoffs, program cancellations, and defaults; and the agencies’ inability to deliver statutorily assigned services (research, data, technical assistance, and FMCS mediation). The government did not meaningfully dispute causation or injury below or on appeal. Unlike in McMahon, there was no case built around speculative chains or an intact agency workforce.
Merits: constitutional ground alone sustains the injunction at this stage:
- The district court found likely violations of both the APA and the Constitution (Take Care Clause/separation of powers).
- On appeal, the First Circuit “need not address” the APA issues because the constitutional theory suffices for a preliminary injunction given the government’s forfeiture of its principal constitutional defenses (Dalton; CSRA channeling) by failing to present them in its stay motion below.
- This is a notable procedural holding: at the stay stage, courts may uphold injunctive relief on any adequate ground that survives preservation scrutiny, without reaching alternative grounds. The court further notes its prior skepticism in Somerville Public Schools that the CSRA was intended to insulate mass agency shutdowns from any judicial review except individual employee claims.
Supreme Court interim stays do not control absent “like case” alignment:
- McMahon (DOE RIF): The Supreme Court granted a stay, but without reasoning. The First Circuit points out that the government argued different issues in that case (standing; non-disablement) and the staffing facts were materially different (here, nearly all IMLS/MBDA/FMCS staff were out). Thus, Boyle’s “like cases” principle does not trigger copycat relief.
- American Public Health Association: The First Circuit takes seriously the Tucker Act and irreparable harm points in the grant-termination context, acknowledging potential unrecoverability of grant disbursements. But those points do not overcome the weak merits showing and strong countervailing harms and public interest here. Notably, the government did not argue that the Tucker Act bars the constitutional theory at issue.
Irreparable harm analysis is granular:
- Staff reinstatement: Generalized assertions that judicial oversight of staffing impairs agency administration are insufficient; there is no record evidence of “workplace tensions.” The court previously rejected similar claims in Somerville.
- Grant disbursements and salaries: Compelled payments that may be unrecoverable are a form of irreparable harm (in line with APHA and California). The court credits this but treats it as limited in the overall balance.
Substantial injury to the states is concrete and immediate: The record reflects program closures, layoffs, inability to pay contractors, and loss of FMCS mediation—injuries that courts routinely treat as substantial and often irreparable. The government’s reliance on Sampson v. Murray (addressing an individual employee’s harms) is inapposite.
Public interest: The court reiterates the maxim that there is no public interest in continuing unlawful agency action (citing Newby), especially where the government does not defend the legality of its conduct on the merits for purposes of the stay. At most, the government shows a limited public interest in avoiding nonrecoupable disbursements, which does not outweigh the other factors.

Impact

Stay-appeal practice tightened: The decision underscores that stay applicants must present their core legal theories to the district court in the stay motion. Arguments first unveiled on appeal—such as Dalton-based limitations on constitutional claims or CSRA channeling—will not be entertained, particularly given Rule 8’s structure and the extraordinary nature of stay relief.
Limited portability of Supreme Court emergency stays: Agencies and the Department of Justice cannot assume that a recent Supreme Court stay in a seeming cognate dispute guarantees a stay elsewhere. Courts will scrutinize whether the case is truly “like” in terms of both facts (e.g., degree of agency disablement) and arguments (standing, causation, jurisdictional theories). Absent alignment, emergency orders have limited persuasive force.
Constitutional claims can sustain preliminary relief independent of APA claims when preserved: Where plaintiffs plausibly allege Take Care Clause/separation-of-powers violations (e.g., dismantling congressionally created agencies by executive fiat), a preliminary injunction may rest on constitutional grounds alone if the defense does not timely raise threshold bars (Dalton/CSRA). This affects litigation strategy for both plaintiffs and the government.
Grant litigation after APHA: The court integrates the Supreme Court’s view that compelled disbursements may be irreparable and that the Tucker Act can limit APA-based remedies in grant disputes. Agencies will likely cite APHA to resist injunctions that functionally enforce payment obligations; plaintiffs will respond by emphasizing non-APA grounds (e.g., constitutional or equitable ultra vires) and tailoring remedies.
Executive-branch restructuring via EOs faces judicial scrutiny: Efforts to “reduce to the minimum presence and function required by law” cannot disable agencies from performing congressionally mandated duties, especially through near-total staffing removals and wholesale grant cancellations. States relying on agency services possess standing to challenge such actions.
Remedial calibration: The district court’s order left room for bona fide efficiency measures, so long as agencies offer a reasoned explanation and do not disable statutory functions. This invites agencies to rebuild administrative records and defend targeted, reasoned changes while the appeal proceeds.

Complex Concepts Simplified

Stay pending appeal: Temporary relief that pauses a lower court order while the appeal is decided. It is extraordinary and assessed under four factors from Nken v. Holder: likelihood of success, irreparable harm to the movant, injury to others, and public interest.
Rule 8 (Federal Rules of Appellate Procedure): Requires parties to seek stays first in the district court before asking the court of appeals. This ensures the trial court can consider and potentially correct issues and promotes preservation of arguments.
Take Care Clause / separation of powers: The Constitution requires the President to “take Care that the Laws be faithfully executed.” Unilaterally disabling congressionally created agencies from performing statutory duties raises separation-of-powers concerns.
Dalton v. Specter bar: Dalton limits judicial review where a claim merely reframes a statutory objection as a constitutional one. But it is a defense that must be timely asserted; it cannot rescue a stay applicant if not raised below.
CSRA channeling: The Civil Service Reform Act provides a comprehensive scheme for individual federal personnel disputes. It does not necessarily bar systemic, separation-of-powers challenges to agency-wide dismantlement—especially at the stay stage where the government has not preserved the argument.
Tucker Act (28 U.S.C. § 1491): Confers jurisdiction on the Court of Federal Claims for money claims against the United States and can bar district court APA actions that effectively enforce payment obligations under grants. The Supreme Court has recognized this bar in analogous contexts; however, it does not automatically preclude non-APA constitutional claims.
Irreparable harm: Harm that cannot be repaired later by money or other relief. Fiscal harms can be irreparable where funds cannot be recovered. Program closures, lost services, and layoffs can also be irreparable or substantial and weigh heavily against a stay.

Conclusion

State of Rhode Island v. Trump delivers two salient doctrinal messages about stay practice. First, it enforces a rigorous preservation rule: stay applicants cannot sandbag by debuting core defenses (like Dalton or CSRA channeling) in the court of appeals. Federal Rule of Appellate Procedure 8 requires raising those arguments in the district court stay motion. Second, the First Circuit declines to treat Supreme Court interim stays as plug-and-play templates; under Trump v. Boyle, they are instructive only in “like cases,” which turns on both factual alignment and the arguments presented.

Substantively, the court confirms that states have standing to challenge executive actions that effectively shutter congressionally mandated agencies upon which they rely for services and funding. It recognizes some limited irreparable harm to the government from compelled disbursements, consistent with recent Supreme Court orders, but holds that such harm cannot overcome a weak merits showing and the concrete harms to the states and the public interest in lawful administration.

The key takeaway: At the stay stage, process matters. Preservation and precise alignment with prior emergency orders are decisive. And on substance, executive efforts to reduce agency footprints cannot cross the constitutional line into disabling entities that Congress has established and funded to perform statutory duties.