National Institutes of Health et al v. American Public Health Association

 

Pix credit here

 Now many years ago, as the American establishment elite were engaged in the first moments of hand wringing and disaster prognostications on the election of Donal Trump in 2016 I suggested that whatever the transitory political consequence of that election (to the chagrin, at the time, of large swaths of elites, or a large spectrum of political hues, who had collectively grown comfortable in what they viewed as their unassailable dominance in the guidance and leadership of the Republic), would occur at a fundamental level of operation.  What I called it then, "Let's Make a Deal" econo-politics ("Let's Make a Deal" as Economic Policy (2016)), had by 2025 morphed into an overall zeitgeist of the times--the foundational ordering principle of "transaction" and the sensibilities of the Merchant as the template of politics.

And nothing says "merchant" and "transaction" better that the disputes from out of which economic expectations and actions are defined and disciplined.  It would follow that a "Transactions"/Merchant presidency would also bring with it a taste for the displacement of politics of policy for a politics of transactions, and with it the displacement of the political branches as the primary site of politics by the judicial branches. That, in turn, would produce a set of substantial challenges for the courts.  Those challenges might include the need to reframe and develop  the jurisprudence of abuse of discretion (now built increasingly around notions of protecting the principle of "benefit of the bargain" in contract against arbitrary and capricious action (the old terminology)). It would also pose issues respecting the taxonomy of regulation. In context in which the State is both regulator and party to contract, the old expectations of the jurisdiction of courts and the constitution of cases  will be tested. That testing will become acute where, for example, jurisdiction is split between contract and policy claims--especially where, under regimes of merchant/transaction the issues of policy and contract are effectively indivisible (policy is contract and contract is policy).

All of these tensions are much on display in the continuing saga of the Trump Administration's battle against a cluster of policies, sensibilities, action expectations, and rules that the Trump Administration has gathered together in what if calls DEI policy. More specifically where the Trump Administration has sought to write policy guidance respecting the awarding and continuation of public grants and then use its own guidance in the administration of grants already awarded but not yet complete. In National Institutes of Health et al v. American Public Health Association (No 25A103) 606 U.S. -- (2025) a quite divided Supreme Court determined that where a grant recipients whose awards were terminated on the basis (at least in part) of the application of administrative guidance documents, the current state of the law required the plaintiffs to seek vindication of their claims touching on abuse of discretion respecting the guiding documents before the federal district courts, but that they must pursue their claims on the wrongful termination of their grants before the Court of Federal Claims (CFC).

Two-track litigation results from “[t]he jurisdictional scheme governing actions against the United States,” which “often requires . . . plaintiffs to file two actions in different courts to obtain complete relief in connection with one set of facts.” United States v. Tohono O’odham Nation, 563 U. S. 307, 323 (2011) (SOTOMAYOR, J., concurring in judgment); see also ibid. (stating that a claim seeking “to set aside agency action must proceed in district court, but a claim that the same agency action constitutes a taking of property requiring just compensation must proceed in the CFC”). True, plaintiffs cannot necessarily sue the government in two forums simultaneously. As JUSTICE J ACKSON notes, 28 U. S. C. §1500 bars CFC jurisdiction over claims pending in other courts when those claims arise from “ ‘substantially the same operative facts.’ ” Post, at 15, n. 4. If the challenges to the guidance and grant terminations have the requisite factual overlap—and I am not sure that they do—the plaintiffs will have to proceed sequentially rather than simultaneously. But we have previously explained that the statutory scheme puts plaintiffs to precisely this choice, Tohono O’odham Nation, 563 U. S., at 316–317, and we have rejected the argument that it is unfair to require plaintiffs “to choose between partial remedies available in different courts,” id., at 316. Suits against the United States are “available by grace and not by right,” and the relief available is subject to the conditions Congress sets. Id., at 317. (Barrett, cincurring in the partial grant of the application for stay, p. 4-5). 

 Justice Barrett's "split the baby" view prevailed because, as sometimes happens, four of the justices would have granted the stay in whole, and four of the Justices would have denied the application in full. 

And all of this before the merits of the claim are litigated (though in fairness the merits serve as the underlying foundation for much of the text  of the opinions). Transactional politics, however, appear in need of courts better fitted to the resolution of political transactions. That, in turn, will eventually require the alignment of trajectories of development of disciplinary rules managing exercises of administrative discretion and the "benefit of the bargain"  baseline for elaborating legally remediable negative impacts on rights.   

The full text of the opinion follows. 

 

Cite as: 606 U. S. ____ (2025)

1

SUPREME COURT OF THE UNITED STATES

_________________

No. 25A103

_________________

NATIONAL INSTITUTES OF HEALTH, ET AL. v.

AMERICAN PUBLIC HEALTH

ASSOCIATION, ET AL.

ON APPLICATION FOR STAY

[August 21, 2025]

The application for stay presented to JUSTICE JACKSON

and by her referred to the Court is granted in part and

denied in part.

The application is granted as to the District Court’s

judgments vacating the Government’s termination of

various research-related grants. See Department of Ed. v.

California, 604 U. S. ___ (2025) (per curiam). The

Administrative Procedure Act’s “limited waiver of

[sovereign] immunity” does not provide the District Court

with jurisdiction to adjudicate claims “based on” the

research-related grants or to order relief designed to

enforce any “‘obligation to pay money’” pursuant to those

grants. Id., at ___ (slip op., at 2). And while the loss of

money is not typically considered irreparable harm, that

changes if the funds “cannot be recouped” and are thus

“irrevocably expended.” Philip Morris USA Inc. v. Scott,

561 U. S. 1301, 1304 (2010) (Scalia, J., in chambers). The

Government faces such harm here. The plaintiffs do not

state that they will repay grant money if the Government

ultimately prevails. Moreover, the plaintiffs’ contention

that they lack the resources to continue their research

projects without federal funding is inconsistent with the

proposition that they have the resources to make the

Government whole for money already spent.

The application is otherwise denied.2 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

BARRETT, J., concurring

Paragraphs 3 and 4 of the June 23, 2025 order of the

United States District Court for the District of

Massachusetts, case No. 1:25–cv–10787, and paragraph II

of the June 23, 2025 order of the United States District

Court for the District of Massachusetts, case No. 1:25–cv–

10814, are stayed pending the disposition of the appeal in

the United States Court of Appeals for the First Circuit and

disposition of a petition for a writ of certiorari, if such a writ

is timely sought. Should certiorari be denied, this stay shall

terminate automatically. In the event certiorari is granted,

the stay shall terminate upon the issuance of the judgment

of the Court. The Government may raise its arguments as

to the remainder of the District Court’s judgments in the

ordinary course.

THE CHIEF JUSTICE, JUSTICE SOTOMAYOR, JUSTICE

KAGAN, and JUSTICE JACKSON would deny the application

in full.

JUSTICE THOMAS, JUSTICE ALITO, JUSTICE GORSUCH, and

JUSTICE KAVANAUGH would grant the application in full.

JUSTICE BARRETT, concurring in the partial grant of the

application for stay.

In recent months, the National Institutes of Health has

worked to align its funding with changed policy priorities

mandated by a series of executive orders. See Exec. Order

No. 14151, 90 Fed. Reg. 8339 (2025); Exec. Order

No. 14168, 90 Fed. Reg. 8615 (2025); Exec. Order

No. 14173, 90 Fed. Reg. 8633 (2025). NIH issued internal

guidance documents describing those priorities: Going

forward, the agency will not fund research related to DEI

objectives, gender identity, or COVID–19. Nor will it

continue the practice of awarding grants to researchers

based on race. After review, NIH issued numerous

decisions terminating existing grants, and various

plaintiffs sued, challenging the guidance documents and

their individual grant terminations under theCite as: 606 U. S. ____ (2025)

3

BARRETT, J., concurring

Administrative Procedure Act. The District Court declared

unlawful and vacated both the guidance and the individual

terminations, and the First Circuit denied the

Government’s request for a stay. Both courts treated NIH’s

termination of grants and its issuance of guidance as

distinct agency actions. The Government sought a stay

from this Court.

As today’s order states, the District Court likely lacked

jurisdiction to hear challenges to the grant terminations,

which belong in the Court of Federal Claims (CFC). See

Department of Ed. v. California, 604 U. S. ___ (2025)

(per curiam). In my view, however, the Government is not

entitled to a stay of the judgments insofar as they vacate

the guidance documents.

Plaintiffs frequently seek vacatur of internal agency

guidance on arbitrary-and-capricious grounds in district

court or directly in the D. C. Circuit. See, e.g., Ciox Health,

LLC v. Azar, 435 F. Supp. 3d 30 (DDC 2020) (challenge to

HHS guidance); POET Biorefining, LLC v. EPA, 970 F. 3d

392 (CADC 2020) (challenge to EPA guidance). That the

agency guidance discusses internal policies related to

grants does not transform a challenge to that guidance into

a claim “founded . . . upon” contract that only the CFC can

hear. 28 U. S. C. §1491(a)(1). So the District Court was

likely correct to conclude that it had jurisdiction to

entertain an APA challenge to the guidance, and it would

be confusing for our disposition of this application to

suggest that the CFC is the right forum for that claim.

THE CHIEF JUSTICE and JUSTICE JACKSON maintain that

because the District Court is the right forum for the

challenge to the guidance, it is necessarily also the right

forum for the challenge to the grant terminations. Post, at

1 (ROBERTS, C. J., concurring in part and dissenting in

part); post, at 14–16 (JACKSON, J., concurring in part and

dissenting in part). Both logic and law, however, support

channeling challenges to the grant terminations and4 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

BARRETT, J., concurring

guidance to different forums. First, logic: Vacating the

guidance does not reinstate terminated grants. If one

simply flowed from the other, the District Court would have

needed only to vacate the guidance itself. Cf. Bowen v.

Massachusetts, 487 U. S. 879, 910 (1988) (one judgment

vacating HHS decision). Here, by contrast, the District

Court separately “vacated” the grant terminations and

ordered the Government to pay plaintiffs sums due under

the agreements “forthwith.” App. to Application 160a.

Second, law: Even if the guidance and grant terminations

are linked, vacating the guidance does not necessarily void

decisions made under it, as the First Circuit recognized.

145 F. 4th 39, 50 (CA1 2025); see also, e.g., D. A. M. v. Barr,

486 F. Supp. 3d 404, 415 (DDC 2020) (vacatur does not

necessarily “eras[e] from legal existence all past

adjudications under the vacated rule”). The claims are

legally distinct. And if the CFC has exclusive jurisdiction

over the grant terminations, see California, 604 U. S., at

___ (slip op., at 2), the plaintiffs cannot end-run that limit

simply by packaging them with a challenge to agency

guidance.1

Two-track litigation results from “[t]he jurisdictional

scheme governing actions against the United States,” which

“often requires . . . plaintiffs to file two actions in different

courts to obtain complete relief in connection with one set

of facts.” United States v. Tohono O’odham Nation, 563

U. S. 307, 323 (2011) (SOTOMAYOR, J., concurring in

judgment); see also ibid. (stating that a claim seeking “to

——————

1 Nor is JUSTICE JACKSON correct to say that this approach leaves the

plaintiffs without any prospect of relief. Post, at 14–15. Each forum has

the authority to fully adjudicate the claims over which it has jurisdiction.

If the CFC concludes that the Government breached a grant agreement,

it may award relief to the grantee. If a district court decides that agency

guidance violates the APA, it may vacate the guidance, preventing the

agency from using it going forward. JUSTICE JACKSON’s fundamental

objection is to sending the grant-termination claims to the CFC, but

California already addressed that question.Cite as: 606 U. S. ____ (2025)

5

BARRETT, J., concurring

set aside agency action must proceed in district court, but a

claim that the same agency action constitutes a taking of

property requiring just compensation must proceed in the

CFC”). True, plaintiffs cannot necessarily sue the

government in two forums simultaneously. As JUSTICE

JACKSON notes, 28 U. S. C. §1500 bars CFC jurisdiction

over claims pending in other courts when those claims arise

from “‘substantially the same operative facts.’” Post, at 15,

n. 4. If the challenges to the guidance and grant

terminations have the requisite factual overlap—and I am

not sure that they do—the plaintiffs will have to proceed

sequentially rather than simultaneously. But we have

previously explained that the statutory scheme puts

plaintiffs to precisely this choice, Tohono O’odham Nation,

563 U. S., at 316–317, and we have rejected the argument

that it is unfair to require plaintiffs “to choose between

partial remedies available in different courts,” id., at 316.

Suits against the United States are “available by grace and

not by right,” and the relief available is subject to the

conditions Congress sets. Id., at 317. Because of those

conditions, my preliminary judgment is that the plaintiffs’

challenges to the grant terminations belong in the CFC, and

their APA challenges to the guidance belong in district

court.

Of course, whether claims about the guidance in this case

will succeed is another question. It is not obvious, for

instance, that NIH’s guidance is final agency action. Yet

the Government did not press this argument—or any

other—in its stay application.2 Instead, its application

largely ignores the guidance, which suggests that this

——————

2 Citing stray references to the guidance, JUSTICE KAVANAUGH draws a

different conclusion. Post, at 1–2 (opinion concurring in part and

dissenting in part). I respectfully disagree with his reading of the filings.

In my view, the Government plainly raised merits-based arguments

regarding the grant terminations, not the guidance. See Application 29–

34.6 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

BARRETT, J., concurring

aspect of the judgments causes it no irreparable harm. The

Government has therefore failed to show that it is entitled

to a stay of the judgments insofar as they vacate the

guidance. Of course, it remains free to challenge the

District Court’s vacatur of the guidance before the First

Circuit.Cite as: 606 U. S. ____ (2025)

1

 

Opinion of ROBERTS, C. J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 25A103

_________________

NATIONAL INSTITUTES OF HEALTH, ET AL. v.

AMERICAN PUBLIC HEALTH

ASSOCIATION, ET AL.

ON APPLICATION FOR STAY

[August 21, 2025]

CHIEF JUSTICE ROBERTS, with whom JUSTICE

SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON join,

concurring in part and dissenting in part.

In my view, the District Court’s vacatur of the challenged

directives distinguishes this case from Department of Ed. v.

California, 604 U. S. ___ (2025) (per curiam). This relief—

which has prospective and generally applicable

implications beyond the reinstatement of specific grants—

falls well within the scope of the District Court’s

jurisdiction under the Administrative Procedure Act, 5

U. S. C. §701 et seq. And if the District Court had

jurisdiction to vacate the directives, it also had jurisdiction

to vacate the “Resulting Grant Terminations.” App. to

Application 148a–152a. The Government has neither

contended that the terminations did not result from the

directives, nor contested the District Court’s conclusion

that the directives constituted final agency action. To the

contrary, it has taken the position that the District Court’s

two remedies are “inseparable,” Reply 5, and that the

directives set forth “a uniform policy” that was

“implement[ed] . . . globally,” Application 33. In such

circumstances, the District Court was not “required . . . to

split [the case] into two parts.” Bowen v. Massachusetts,

487 U. S. 879, 911 (1988).Cite as: 606 U. S. ____ (2025)

1

 

Opinion of GORSUCH, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 25A103

_________________

NATIONAL INSTITUTES OF HEALTH, ET AL. v.

AMERICAN PUBLIC HEALTH

ASSOCIATION, ET AL.

ON APPLICATION FOR STAY

[August 21, 2025]

JUSTICE GORSUCH, with whom JUSTICE KAVANAUGH

joins, concurring in part and dissenting in part.

Lower court judges may sometimes disagree with this

Court’s decisions, but they are never free to defy them. In

Department of Ed. v. California, 604 U. S. ___ (2025)

(per curiam), this Court granted a stay because it found the

government likely to prevail in showing that the district

court lacked jurisdiction to order the government to pay

grant obligations. California explained that “suits based on

‘any express or implied contract with the United States’” do

not belong in district court under the Administrative Proce-

dure Act (APA), but in the Court of Federal Claims under

the Tucker Act. Id., at ___ (slip op., at 2) (quoting 28

U. S. C. §1491(a)(1)). Rather than follow that direction, the

district court in this case permitted a suit involving mate-

rially identical grants to proceed to final judgment under

the APA. As support for its course, the district court in-

voked the “persuasive authority” of “the dissent[s] in Cali-

fornia” and an earlier court of appeals decision California

repudiated. Massachusetts v. Kennedy, ___ F. Supp. 3d ___,

___ (Mass. 2025), App. to Application 232a (App.). That was

error. “[U]nless we wish anarchy to prevail within the fed-

eral judicial system, a precedent of this Court must be fol-

lowed by the lower federal courts no matter how misguided2 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of GORSUCH, J.

the judges of those courts may think it to be.” Hutto v. Da-

vis, 454 U. S. 370, 375 (1982) (per curiam).

In casting California aside, the district court stressed

that the Court there granted only interim relief pending ap-

peal and a writ of certiorari and did not issue a final judg-

ment on the merits. ___ F. Supp. 3d, at ___, App. 229a.

True enough. But this Court often addresses requests for

interim relief—sometimes pending a writ of certiorari, as in

California, and sometimes after a writ of certiorari is

granted, as in Mahmoud v. Taylor, 606 U. S. ___ (2025), and

Free Speech Coalition, Inc. v. Paxton, 606 U. S. ___ (2025).

And either way, when this Court issues a decision, it con-

stitutes a precedent that commands respect in lower courts.

Of course, decisions regarding interim relief are not nec-

essarily “conclusive as to the merits” because further litiga-

tion may follow. Trump v. Boyle, 606 U. S. ___ (2025) (slip

op., at 1). But regardless of a decision’s procedural posture,

its “reasoning—its ratio decidendi”—carries precedential

weight in “future cases.” Ramos v. Louisiana, 590 U. S. 83,

104 (2020) (opinion of GORSUCH, J.); see also Bucklew v.

Precythe, 587 U. S. 119, 136 (2019) (“[J]ust as binding as [a]

holding is the reasoning underlying it”). And California’s

reasoning was clear. There, the Court explained that “the

APA’s limited waiver of immunity does not extend to orders

to enforce a contractual obligation to pay money . . . . In-

stead, the Tucker Act grants the Court of Federal Claims

jurisdiction over suits based on any express or implied con-

tract with the United States.” 604 U. S., at ___ (slip op., at

2) (internal quotation marks omitted). That reasoning

binds lower courts as a matter of vertical stare decisis.

Moreover, even probabilistic holdings—such as Califor-

nia’s top-line conclusion that “the Government is likely to

succeed in showing the District Court lacked jurisdiction to

order the payment of money under the APA,” id., at ___–___

(slip op., at 1–2)—must “inform how a [lower] court” pro-

ceeds “in like cases,’’ Boyle, 606 U. S., at ___ (slip op., at 1).Cite as: 606 U. S. ____ (2025)

3

Opinion of GORSUCH, J.

If nothing else, the promise of our legal system that like

cases are treated alike means that a lower court ought not

invoke the “persuasive authority” of a dissent or a repudi-

ated court of appeals decision to reach a different conclusion

on an equivalent record. ___ F. Supp. 3d, at ___, App. 232a.

To be sure, beyond expressing mere disagreement with

California, the district court also sought to distinguish it.

But that effort failed too. This case, the district court as-

serted, is “somewhat different” from California because the

“only claim” there concerned the denial of “previously

awarded discretionary grants.” ___ F. Supp. 3d, at ___,

App. 228a (internal quotation marks omitted). But the

same holds true here. The only injury the district court

sought to remedy in its judgments stems from the govern-

ment’s denial of previously awarded discretionary grants.

Accordingly, California controls.

Perhaps sensing the problems with the district court’s ap-

proach, the court of appeals tried to distinguish California

in still two other ways. First, the court of appeals suggested

that the district court had not invoked the APA to order the

government to pay money in defiance of California, but in-

stead invoked the APA only to vacate the government’s de-

cision to terminate respondents’ grants. 145 F. 4th 39, 51

(CA1 2025). This Court’s precedents, however, cannot be so

easily circumvented. An order vacating the government’s

decision to terminate grants under the APA is in every

meaningful sense an order requiring the government to pay

those grants. Even the district court recognized as much,

instructing the government that its “vacation of ” the grant

terminations should “result in forthwith . . . disbursement

of funds” pursuant to the grants. App. 160a–161a. Second,

the court of appeals asserted that, unlike in California, the

claims here do not “depen[d] on the terms and conditions of

the grant awards.” 145 F. 4th, at 52. But that is also incor-

rect. In both cases, respondents’ injury and alleged right to

payment stem from the government’s refusal to pay4 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of GORSUCH, J.

promised grants according to the terms and conditions that

accompany them.1

For these reasons, I concur in the Court’s decision to stay

the district court’s judgments vacating the grant termina-

tions. If the district court’s failure to abide by California

were a one-off, perhaps it would not be worth writing to ad-

dress it. But two months ago another district court tried to

“compel compliance” with a different “order that this Court

ha[d] stayed.” Department of Homeland Security v.

D. V. D., 606 U. S. ___, ___ (2025) (KAGAN, J., concurring)

(slip op., at 1). Still another district court recently diverged

from one of this Court’s decisions even though the case at

hand did not differ “in any pertinent respect” from the one

this Court had decided. Boyle, 606 U. S., at ___ (slip op., at

1). So this is now the third time in a matter of weeks this

Court has had to intercede in a case “squarely controlled”

by one of its precedents. Ibid. All these interventions

should have been unnecessary, but together they under-

score a basic tenet of our judicial system: Whatever their

own views, judges are duty-bound to respect “the hierarchy

of the federal court system created by the Constitution and

Congress.” Hutto, 454 U. S., at 375.2

——————

1 JUSTICE JACKSON’s dissent suggests that individuals enjoy a free-

floating “right” under the APA to ensure the government “engage[s] in

reasoned decisionmaking.” Post, at 13, 16. But that, too, is mistaken.

To sue under the APA, a litigant must “suffe[r] legal wrong because of

agency action.” 5 U. S. C. §702. And here, the alleged legal wrong the

district court sought to remedy was the government’s failure to pay

promised grants, a point the dissent itself elsewhere acknowledges. See

post, at 13, n. 2 (observing that respondents’ “injury and right to payment

actually stem from the Government’s allegedly arbitrary and capricious

termination of their grant funding” (emphasis in original)).

2 I would also have stayed the remainder of the district court’s judg-

ments, which vacated internal agency guidance. The only injury that

gave respondents standing to obtain that relief was the termination of

pre-existing grants. See Application 25–26; Reply 4–5; post, at 15 (JACK-

SON, J., concurring in part and dissenting in part). True, respondents in

this case also asserted injuries from the guidance based on theCite as: 606 U. S. ____ (2025)

Opinion of GORSUCH, J.

5

——————

government’s alleged failure to process new grant applications. But the

district court declined to pass on those allegations, and they therefore

cannot provide a basis for the judgments. See Application 25–26; ___

F. Supp. 3d ___, ___ (Mass. 2025), App. 208a; App. to Respondent States’

Opposition 105a–106a. So all claims on which the district court rendered

judgment were “based on” respondents’ contracts with the government,

and those judgments were thus entered without jurisdiction. California,

604 U. S., at ___ (slip op., at 2).

 

 

Cite as: 606 U. S. ____ (2025)

1

Opinion of KAVANAUGH, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 25A103

_________________

NATIONAL INSTITUTES OF HEALTH, ET AL. v.

AMERICAN PUBLIC HEALTH

ASSOCIATION, ET AL.

ON APPLICATION FOR STAY

[August 21, 2025]

JUSTICE KAVANAUGH, concurring in part and dissenting

in part.

Like JUSTICES THOMAS, ALITO, and GORSUCH, I would

grant the Government’s application for an interim stay in

full.

First, I agree with the Government (and the Court) that

plaintiffs’ claims challenging NIH’s grant terminations

likely belong in the Court of Federal Claims, not in federal

district court. This Court previously indicated as much in

the interim order in Department of Ed. v. California, 604

U. S. ___ (2025) (per curiam). The reason is

straightforward: The core of plaintiffs’ suit alleges that the

Government unlawfully terminated their grants. That is a

breach of contract claim. And under the Tucker Act, such

claims must be brought in the Court of Federal Claims, not

federal district court. 28 U. S. C. §1491(a)(1).

Second, I also agree with the Government that plaintiffs’

challenge to NIH’s guidance on grant terminations is likely

unavailing. For starters, it is not evident that plaintiffs’

challenge to the guidance is separable from their challenge

to the grant terminations. But even if it is, plaintiffs are

unlikely to succeed on the merits of their arbitrary and

capricious challenge to the guidance, for reasons that the

Government persuasively explained in its application to

this Court. See Application 29–34; id., at 31 (“The district2 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of KAVANAUGH, J.

court’s principal objection was that the NIH never defined

the term ‘DEI.’ . . . But there is no APA rule that agencies

define every term in every internal guidance document,

particularly when that guidance steers highly discretionary

decisions over how to allocate limited agency resources”);

id., at 32 (“Here, the NIH’s guidance described the

Administration’s general priorities on research funding and

instructed implementation on a grant-by-grant basis”);

ibid. (“Agency guidance documents do not need to come

with glossaries just to avoid APA invalidation”); Reply Brief

11 (“Respondents echo . . . the district court’s criticism of

the guidance documents’ failure to explicitly define DEI.

Respondents ignore case law holding that grant criteria

need not define terms with exacting precision”).

Finally, the harms and equities are weighty on both

sides. But in my view, they tilt toward the Government

because plaintiffs have not represented that they would

return the grant money if the Government were to

ultimately prevail in the merits litigation.

JUSTICE JACKSON seems to suggest that we can avoid this

significant (albeit interim) forum-channeling decision by

simply denying the application. That is wrong. We have to

decide the application. Denying the application in whole

(as JUSTICE JACKSON and three others would do) would

mean that the suit belongs for now in the Federal District

Court or the First Circuit. Granting the application in

whole (as I and three others would do) would mean that the

suit belongs for now in the Court of Federal Claims.

Granting in part and denying in part (as the Court’s order

does) means that the challenge to the grant terminations

belongs for now in the Court of Federal Claims and the

arbitrary and capricious claim belongs for now in the

Federal District Court or the First Circuit. For this Court,

there is no way to avoid deciding the application and

thereby making that interim forum-channeling decision.Cite as: 606 U. S. ____ (2025)

Opinion of KAVANAUGH, J.

* * *

3

For those reasons, I would grant the Government’s

application for an interim stay in full.Cite as: 606 U. S. ____ (2025)

1

Opinion of JACKSON, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 25A103

_________________

NATIONAL INSTITUTES OF HEALTH, ET AL. v.

AMERICAN PUBLIC HEALTH

ASSOCIATION, ET AL.

ON APPLICATION FOR STAY

[August 21, 2025]

JUSTICE JACKSON, concurring in part and dissenting in

part.

This past spring, as March turned to April, the Court took

a mere nine days to address a difficult and nuanced legal

issue: whether a federal district court or the Court of

Federal Claims has statutory jurisdiction over a claim that

the Government violated the Administrative Procedure Act

(APA), 5 U. S. C. §706, by arbitrarily and capriciously

terminating federal grants en masse. See Department of

Ed. v. California, 604 U. S. ___ (2025) (per curiam). It chose

the Court of Federal Claims. Id., at ___ (slip op., at 2). I

viewed the Court’s intervention then—in an emergency

stay posture, while racing against a fast-expiring

temporary restraining order—as “equal parts unprincipled

and unfortunate.” Id., at ___ (JACKSON, J., dissenting) (slip

op., at 16).

As it turns out, the Court’s decision was an even bigger

mistake than I realized. The Court’s reasoning in

California was not only “at the least under-developed, and

very possibly wrong,” id., at ___ (KAGAN, J., dissenting) (slip

op., at 1), but also evidently resolved more than the

jurisdictional dispute over the particular education-related

grants at issue in that case. Today’s decision reveals

California’s considerable wingspan: That case’s ipse dixit

now apparently governs all APA challenges to grant-2 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of JACKSON, J.

funding determinations that the Government asks us to

address in the context of an emergency stay application. A

half paragraph of reasoning (issued without full briefing or

any oral argument) thus suffices here to partially sustain

the Government’s abrupt cancellation of hundreds of

millions of dollars allocated to support life-saving

biomedical research.

For a cautionary tale about lawmaking on the emergency

docket, look no further than this newest iteration. By

today’s order, an evenly divided Court neuters judicial

review of grant terminations by sending plaintiffs on a

likely futile, multivenue quest for complete relief. Neither

party to the case suggested this convoluted procedural

outcome, and no prior court has held that the law requires

it. But, in the view of the deciding vote, California compels

this conclusion. “So only another under-reasoned

emergency order undergirds today’s.” Trump v. Boyle, 606

U. S. ___, ___ (2025) (KAGAN, J., dissenting from grant of

application for stay) (slip op., at 2).

The Court also lobs this grenade without evaluating

Congress’s intent or the profound legal and practical

consequences of this ruling. Stated simply: With

potentially life-saving scientific advancements on the line,

the Court turns a nearly century-old statute aimed at

remedying unreasoned agency decisionmaking into a

gauntlet rather than a refuge. But we have no business

erecting a novel jurisdictional barrier to judicial review—

especially when it appears nowhere in the relevant statutes

and makes little sense. Because the Government’s

application should have been denied in full, I respectfully

dissent in part.

I

Some background helps to clarify the character of the

governmental action the Court now bends over backward to

accommodate.Cite as: 606 U. S. ____ (2025)

3

Opinion of JACKSON, J.

A

The National Institutes of Health (NIH) is the largest

public funder of medical research in the world. Congress’s

express instructions have enabled that status: By statute,

the NIH must “make grants-in-aid to universities,

hospitals, laboratories, and other public or private

institutions, and to individuals” to contribute to the effort

to diagnose, treat, and prevent “physical and mental

diseases and impairments of man.” 42 U. S. C. §§241(a),

(a)(3).

Various statutory provisions shape the NIH’s discretion

in allocating these funds, including in ways that recognize

the importance of science for the study, healing, and service

of a diverse Nation. For instance, Congress requires the

National Cancer Institute, an institute within the NIH, to

fund “community-based programs designed to assist

women who are members of medically underserved

populations, low-income populations, or minority groups.”

§285a–6(c)(1)(C). And it instructs another NIH-based

institute, the National Institute on Minority Health and

Health Disparities, to “make awards of grants . . . for the

purpose of . . . supporting programs of excellence in

biomedical and behavioral research training for individuals

who are members of minority health disparity populations.”

§285t–1(a); see also, e.g., §289a–2(a)(1) (requiring the NIH

to ensure that women and members of minority groups are

represented in the clinical research it supports).

Historically, the NIH has awarded multiyear grants

pursuant to established statutory criteria and objectives.

See, e.g., 42 CFR §52a.5 (2024). Also historically, the NIH’s

grant selection process has been rigorously scientific. See

Brief for Association of American Medical Colleges (AAMC)

et al. as Amici Curiae 5–8. Grant terminations, meanwhile,

have been rare; according to testimony in this case, the NIH

terminated fewer than six grants midstream in the 13 years

from 2012 to January 20, 2025.4 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of JACKSON, J.

The NIH’s implementation of its grantmaking obligations

changed dramatically in February 2025, after the President

signed a trio of executive orders instructing the

Government to stop diversity, equity, and inclusion (DEI)

initiatives, “gender ideology” promotion, and COVID–19

research.1 In response, NIH leadership issued a series of

directives ordering termination, en masse, of existing

grants that the agency perceived as in tension with the new

Administration’s policies.

A frantic process followed. As detailed by the District

Court, the NIH and its constituent institutes subsequently

engaged in a “wholesale effort to excise grants in 8

categories over a period of less than 90 days.” ___ F. Supp.

3d ___, ___ (Mass. 2025), App. to Application 116a (App.).

When the dust settled, thousands of grants had been

canceled, including those supporting research into suicide

risk and prevention, HIV transmission, Alzheimer’s, and

cardiovascular disease.

B

1

The two informally consolidated cases now before the

Court were brought by, first, a group of individual

researchers, doctors, and unions who depend on NIH

funding for their research; and, second, a coalition of 16

States, suing on behalf of their public universities. The

plaintiffs sued in Federal District Court, arguing that the

NIH had implemented the executive orders in a manner

that violated the APA, the separation of powers, the

Spending Clause, and the Constitution’s prohibition

against ultra vires action.

Handling the case with dispatch, the District Court

initially analyzed what has become the Government’s

primary contention: that the APA claim is really a breach-

——————

1 See Exec. Order No. 14151, 90 Fed. Reg. 8339 (2025); Exec. Order

No. 14168, 90 Fed. Reg. 8615; Exec. Order No. 14173, 90 Fed. Reg. 8633.Cite as: 606 U. S. ____ (2025)

5

Opinion of JACKSON, J.

of-contract suit, and that the Tucker Act, 28 U. S. C. §1491,

therefore channels the case to the Court of Federal Claims

rather than the District Court. As it does here, the

Government took inspiration from this Court’s recent order

in California. But the District Court concluded that

California was “somewhat different,” Massachusetts v.

Kennedy, ___ F. Supp. 3d ___, ___ (Mass. 2025), App. 228a,

such that Bowen v. Massachusetts, 487 U. S. 879 (1988),

controlled and permitted the case to remain in district

court.

The basic distinction, the court explained, is that while

breach-of-contract actions for money damages go to the

Claims Court, statutory actions to ensure compliance with

federal law belong in district court. California could be

conceived of as the former, insofar as it focused only on

“sums awarded . . . in previously awarded discretionary

grants.” App. 228a (internal quotation marks omitted). By

contrast, this action sought to prevent the NIH “from

violating the statutory grant-making architecture created

by Congress, replacing Congress’ mandate with new

policies that directly contradict that mandate, and

exercising authority arbitrarily and capriciously”—

wheelhouse APA contentions. Id., at 235a.

After dismissing some of the plaintiffs’ claims, the

District Court proceeded directly to a bench trial on the

merits. At the trial’s conclusion, the District Court reserved

judgment on most claims but ruled on the one it was

“confident in” after “a careful review”: that the challenged

directives and resulting terminations were arbitrary and

capricious, and so had to be set aside under the APA. Id.,

at 159a–160a; see 5 U. S. C. §706(2)(A).

The District Court laid out its factual findings and legal

conclusions in a 103-page opinion. With respect to the

arbitrariness allegation, the District Court explained,

among other things, that “DEI”—the central concept the

executive orders aimed to extirpate—was nowhere defined,6 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of JACKSON, J.

leaving individual agency employees “to arrive at whatever

conclusion [they] wishe[d].” ___ F. Supp. 3d, at ___, ___,

App. 126a–127a, 131a–132a. That definitional void left

them applying “circular and nonsensical boilerplate

language,” id., at 129a, to cancel grants without

explanation or reason and in a manner that had “absolutely

nothing to do with the promotion of science or research,” id.,

at 52a. In place of science, meanwhile, came something

more pernicious: The court found, as a factual matter, “an

unmistakable pattern of discrimination against women’s

health issues” and “pervasive racial discrimination”—

indeed, “palpable” racial discrimination of a sort the judge

had “never seen” in 40 years on the bench. Id., at 45a–46a,

n. 4, 166a. The result was a policy of mass grant

terminations that was “breathtakingly arbitrary and

capricious.” Id., at 124a. So the District Court declared

unlawful and vacated the challenged directives and the

“resulting . . . terminations” of the plaintiffs’ grants. Id., at

148a–152a (capitalization omitted).

2

After the District Court entered partial final judgment,

the Government asked that court, and then the First

Circuit, to stay that judgment pending appeal. Both courts

declined. In response to the Government’s primary

argument—the Tucker Act one—the First Circuit issued an

opinion that sought to “harmonize” this Court’s decisions in

Bowen, 487 U. S. 879; Great-West Life & Annuity Ins. Co. v.

Knudson, 534 U. S. 204 (2002); and California, 604 U. S.

___. See 145 F. 4th 39, 50 (2025). It concluded that those

decisions permitted the District Court to enter, as it had,

“‘prospective relief ’ that will govern ‘the rather complex

ongoing relationshi[p]’ between the [NIH] and grant

recipients,” especially because the District Court’s

determination did not depend on the terms of any contract.

Id., at 50–51 (quoting Bowen, 487 U. S., at 905).Cite as: 606 U. S. ____ (2025)

7

Opinion of JACKSON, J.

The First Circuit’s stay opinion also evaluated the

relative harms and compared the balance of the equities to

those in California. It concluded that these plaintiffs stood

to lose more and the Government less: Unlike in California,

these researchers lack the financial wherewithal to keep

their programs running on their own—meaning a stay

would euthanize animal subjects, terminate life-saving

trials, and close community health clinics. And unlike in

California, there is no fast-expiring temporary restraining

order incentivizing a rushed drawdown of granted funds.

Accordingly, the First Circuit declined to stay the District

Court’s partial judgment pending appeal.

C

The Government now asks us for a stay. To obtain one,

the Government must make “a strong showing” that it will

likely succeed on the merits, that it will be irreparably

harmed absent a stay, and that the balance of the equities

(including the public interest) favors a stay. See Nken v.

Holder, 556 U. S. 418, 426 (2009) (internal quotation marks

omitted). Because two lower courts have already denied

stays, the Government bears “an especially heavy burden”

to secure one from us. Edwards v. Hope Medical Group for

Women, 512 U. S. 1301, 1302 (1994) (Scalia, J., in

chambers) (internal quotation marks omitted).

Yet, today, without any such showing, this Court gives

the Government much of what it asks for. It splits review

of the grant terminations from review of the grant

termination policy—thereby preserving the mirage of

judicial review while eliminating its purpose: to remedy

harms. The Court now holds that a plaintiff who maintains

that the Government’s midstream termination of promised

grant funding was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law,” 5

U. S. C. §706(2)(A), can file a claim in federal district court,

seeking to set aside the unlawful agency guidance that8 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of JACKSON, J.

caused it to lose its grant. But if it wants the improperly

terminated grant funding restored, a lawsuit filed in

district court will not suffice; apparently, for that remedy,

the plaintiff has to bring another legal action in a different

court. See ante, at 3–5 (BARRETT, J., concurring in partial

grant of application for stay).

It gets worse. From the logic (such as it is) of the Court’s

order, it appears that a plaintiff ’s pursuit of grant

reinstatement in the Court of Federal Claims—where

today’s ruling shunts them—will be in vain, because the

Tucker Act “impliedly forbids” that plainly appropriate

relief. 5 U. S. C. §702. And worse still, the viability of the

initial district court action is also in doubt, since a plaintiff

seeking invalidation of an unlawful grant termination

policy standing alone (a posture that today’s decision

requires) might still flunk the APA’s final-agency-action

test. See ante, at 5–6 (opinion of BARRETT, J.).

It would have been much simpler for the Court to just

announce that, regardless of the plain text of the APA or

what Congress intended to authorize, we no longer accept

that the Government’s grant-termination decisions are

subject to arbitrary-and-capricious review or that vacatur

of an arbitrary grant-termination decision is an available

remedy. At least that would have been straightforward.

Instead, as I explain below, the Court obliquely rewrites

both the plaintiffs’ complaint and the APA. First, it forces

the plaintiffs to allege that the agency has unlawfully

breached a grant contract when their actual claim is the

unlawful decisionmaking cause of action that the APA

plainly authorizes. Then, the Court adopts a bifurcated,

ultimately ineffectual approach to seeking complete relief

for the disfigured claim it has created. Today’s order thus

effectively extinguishes district courts’ power to “set aside”

arbitrary grant terminations, as that remedial power

necessarily involves the concomitant restoration of the

unlawfully terminated grant funding.Cite as: 606 U. S. ____ (2025)

9

Opinion of JACKSON, J.

Part II, below, explains why the Court’s order is wrong

with respect to both the merits of the underlying

jurisdictional question and the claim-splitting procedure it

adopts. Part III demonstrates that the remaining,

nonmerits factors weigh heavily against the stay, which

means today’s error will have grave real-world

consequences. Either way, the Government’s emergency

application should have been denied in full.

II

A

A majority of the Court rightly rejects the Government’s

frontline merits position: that this whole case belonged in

the Court of Federal Claims. Had it prevailed, that view

would have flatly contravened seven decades of

administrative law and practice. See, e.g., Sharp v.

Weinberger, 798 F. 2d 1521, 1523 (CADC 1986) (Scalia, J.).

It would have also carried astonishing implications—

including, by the Government’s own admission, that no

court would have the power to vacate or enjoin a blatantly

discriminatory grant-related policy, such as a blanket ban

on federal grants to Black or Catholic researchers. See

Reply 7–8.

Five Members of the Court reject that radical view today.

So, district courts may still exercise jurisdiction over—and

vacate—grant-related policies that contravene federal law,

including the one here, which this District Court considered

“breathtakingly arbitrary and capricious” and therefore set

aside under the APA. ___ F. Supp. 3d, at ___, App. 124a.

From there, this case should have been easy. The sole

legal conclusion the District Court reached concerned the

arbitrary and capricious (i.e., unlawful) nature of the

challenged directives. And those directives were the

undisputed basis for the plaintiffs’ grant terminations.

Thus, in the District Court’s view, as in mine, the remedy

for the unlawful grant-termination directives is obvious:10 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of JACKSON, J.

invalidation of the policy and reinstatement of the

plaintiffs’ grants. Accord, ante, at 1 (ROBERTS, C. J.,

concurring in part and dissenting in part). It is, after all,

an “uncontroversial” feature of APA review “that, when a

court with jurisdiction finds that the plaintiffs before it

were harmed by an agency decision issued under an illegal

rule, the court should vacate that wrongful decision as a

remedy.” D. A. M. v. Barr, 486 F. Supp. 3d 404, 416 (DC

2020).

The Court’s order deviates dramatically from this

ordinary, commonsense approach to APA review. Its

chosen approach—splitting the directives from the grants—

implies one of two things. Either the Court doubts that the

grant terminations at issue here in fact resulted from the

unlawful directives; or it doubts that plaintiffs who prevail

in APA cases should see any benefit from their victory.

The Court’s order does not own either implication—and

for good reason. The District Court carefully reinstated (or,

more precisely, declared unlawful the termination of ) only

those grants whose termination “result[ed]” from the

directives. App. 148a–152a. The causal chain from policy

to termination is a factual question, and we are given no

basis upon which to second-guess the District Court’s view.

Cf. Trump v. American Federation of Government

Employees, 606 U. S. ___, ___–___ (2025) (JACKSON, J.,

dissenting from grant of application for stay) (slip op., at 8–

12). Indeed, not even the Government contests—instead, it

emphasizes—the fit between directive and implementation.

See, e.g., Application 25–26; Reply 4–5 (“the guidance led to

the termination of [the plaintiffs’] grants”); see also ante, at

1 (opinion of ROBERTS, C. J.). I also do not take the Court

to be revisiting, much less unsettling, the (recently

reaffirmed) basic principle that a prevailing plaintiff should

generally get to benefit from its victory. See, e.g., Franklin

v. Gwinnett County Public Schools, 503 U. S. 60, 76 (1992)

(rejecting interpretation of a statute that would “leaveCite as: 606 U. S. ____ (2025)

11

Opinion of JACKSON, J.

petitioner remediless”); cf. Trump v. CASA, Inc., 606 U. S.

___, ___ (2025) (slip op., at 17) (courts should generally

grant “complete relief to the plaintiffs before the court”

(emphasis deleted)).

B

So there must be something different about this context—

some reason that, normal remedial principles

notwithstanding, a district court cannot order the

restoration of a plaintiff ’s federal grants after it finds that

those grants were terminated pursuant to an unlawful

policy. For this, the Court turns to the Tucker Act. But the

Tucker Act likely has nothing to say about this case. It

certainly neither constructs the jurisdictional maze today’s

order sketches nor requires the result today’s order

presumes (i.e., no relief for unlawfully short-changed

grantee-plaintiffs).

The Government’s jurisdictional argument lies,

ironically, at the intersection of two sovereign-immunity

waivers. The APA waives the Government’s sovereign

immunity from claims complaining of unlawful agency

action and “seeking relief other than money damages.” 5

U. S. C. §702. The Tucker Act waives the Government’s

sovereign immunity from (as relevant here) money-

damages claims “founded . . . upon any express or implied

contract with the United States,” and it sends such claims

(again, as relevant here) to the Court of Federal Claims. 28

U. S. C. §1491(a)(1); see United States v. Mitchell, 463 U. S.

206, 212 (1983). The Government does not dispute that the

APA’s waiver, by its terms, applies to the claims brought in

this lawsuit—it does not, for instance, argue that these

plaintiffs seek “money damages.” See Application 21–22.

So the question is not whether sovereign immunity has been

waived but which waiver applies: the APA’s or the Tucker

Act’s.12 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of JACKSON, J.

On this point, the APA itself offers guidance by means of

two intersection-navigating provisions. First and foremost,

the APA makes its cause of action available only if there is

“no other adequate remedy in a court.” 5 U. S. C. §704.

And, notably, the Government does not argue that district

court review is unavailable for failure to meet this

requirement. Nor could it reasonably do so, because the

Court of Federal Claims is authorized to award only money

damages for contract breaches, not reinstatement of grant

funding improperly terminated in violation of federal law.

By its plain terms, then, §704 permits an APA lawsuit in

district court seeking the otherwise unavailable remedy of

grant reinstatement. See Bowen, 487 U. S., at 904–905.

Recognizing that Bowen forecloses a §704-based

argument, the Government points instead to §702. This

provision anticipates potential waiver overlap and

withdraws the APA’s immunity waiver when plaintiffs

attempt to use the APA to obtain relief that “any other

statute that grants consent to suit expressly or impliedly

forbids.” Section 702 thus “prevents plaintiffs from

exploiting the APA’s waiver to evade limitations on suit

contained in other statutes.” Match-E-Be-Nash-She-Wish

Band of Pottawatomi Indians v. Patchak, 567 U. S. 209, 215

(2012).

But, of course, any statute that might preclude APA relief

via §704 (by providing an adequate alternative remedy) or

§702 (by forbidding the remedy sought) must be “addressed

to the type of grievance” the APA claim asserts. See id., at

220–221 (quoting H. R. Rep. No. 94–1656, p. 28 (1976));

Maryland Dept. of Human Resources v. Department of

Health and Human Servs., 763 F. 2d 1441, 1449 (CADC

1985). The relevant part of the Tucker Act is “addressed to”

contract claims, which these are not.

These plaintiffs’ legal claims have nothing at all to do

with individual grant contracts, nor do the plaintiffs seek

“past due sums” as relief. See Maine Community HealthCite as: 606 U. S. ____ (2025)

13

Opinion of JACKSON, J.

Options v. United States, 590 U. S. 296, 326–327 (2020).

The plaintiffs do not argue that the Government shorted

any of its contractual obligations. Rather, they claim the

Government flubbed its most basic statutory one: to engage

in reasoned decisionmaking.2 And they seek not damages

for the Government’s contract breach but a mandate that it

comply with federal law over the course of the parties’

“ongoing relationship.” Bowen, 487 U. S., at 905.3 The

plaintiffs, in other words, “asser[t] a grievance altogether

different from the kind the [Tucker Act] concerns.” Match-

E-Be-Nash-She-Wish Band, 567 U. S., at 216. And the

grievance they assert is “a garden-variety APA claim,” id.,

at 220—which means it likely belongs in federal district

court.

The analysis should end there. The Government’s sole

retort is that, in this context, a winning APA claim—setting

aside the guidance and, consequently, vacating the

——————

2 Thus, it mischaracterizes the plaintiffs’ claims to construe them as

being based on a contract breach. It is simply not true that the plaintiffs’

“injury and alleged right to payment stem from the government’s refusal

to pay promised grants according to the terms and conditions that

accompany them.” Ante, at 3–4 (GORSUCH, J., concurring in part and

dissenting in part). Indeed, from these plaintiffs’ perspective, the terms

and conditions of the promised grants, and whether or not the

Government complied with them, are entirely beside the point—

regardless, the Government must act (make decisions, including the

decision to cancel grants) in accordance with federal law. So, as the

plaintiffs’ complaints and arguments consistently maintain, their injury

and right to payment actually stem from the Government’s allegedly

arbitrary and capricious termination of their grant funding in violation

of the APA.

3 See also, e.g., Transohio Sav. Bank v. Director, Office of Thrift

Supervision, 967 F. 2d 598, 610 (CADC 1992), abrogated on other

grounds as recognized in Perry Capital LLC v. Mnuchin, 864 F. 3d 591,

620 (CADC 2017) (“The lesson . . . is straightforward: under §702 and the

Tucker Act, litigants may bring common-law contract claims only as

actions for money damages in the Claims Court, but they may bring

statutory and constitutional claims for specific relief in the federal

district court”).14 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of JACKSON, J.

resulting grant terminations—would obligate it to pay

money to the plaintiffs. (This central tenet of the

Government’s argument, by the way, is apparently not

shared by JUSTICE BARRETT, whose deciding vote causes a

winning APA claim somehow to confer no financial benefit

to the injured plaintiffs.) But we have long recognized that

such a mere “by-product” of APA review does not send a

case to the Court of Federal Claims. See Bowen, 487 U. S.,

at 910; accord, California, 604 U. S., at ___ (slip op., at 2)

(“[A] district court’s jurisdiction ‘is not barred by the

possibility’ that an order setting aside an agency’s action

may result in the disbursement of funds” (quoting Bowen,

487 U. S., at 910)); Department of State v. AIDS Vaccine

Advocacy Coalition, 604 U. S. ___, ___ (2025) (ALITO, J.,

dissenting from denial of application to vacate order) (slip

op., at 6) (“Bowen simply recognized a basic reality of APA

review: after a court sets aside an agency action, a natural

consequence may be the release of funds to the plaintiff

down the road”).

Given all this, I would have concluded, at least in this

preliminary posture, that the Tucker Act bears not at all on

this case.

C

But whatever the Tucker Act might have to say about

APA claims brought in cases like this one, it surely does not

compel the bizarre claim-splitting regime the Court

imposes today. After today’s order, how are plaintiffs like

these—federal grantees who believe their grants were

terminated pursuant to an unlawful policy—to get complete

relief? The Court does not say. The answer, it seems, is

they cannot.

Such a grantee can operate like the plaintiffs here did, by

filing an APA claim in district court challenging the policy

under which they lost their grants. Such a grantee can, like

the plaintiffs here, win that claim and have the policy setCite as: 606 U. S. ____ (2025)

15

Opinion of JACKSON, J.

aside as unlawful. And then—what? The district court that

just set aside the unlawful policy apparently cannot

“adjudicate claims ‘based on’” the grant terminations that

resulted from the policy (whatever that means after today)

or “order relief designed to enforce any ‘“obligation to pay

money”’ pursuant to those grants.” Ante, at 1 (order)

(quoting California, 604 U. S., at ___ (slip op., at 2)). But,

of course, it is the prospect of getting its wrongfully

terminated grant money that brings the grantee to court in

the first place. That prospect is also, one presumes, the only

(or at least the primary) reason the grantee has Article III

standing to sue at all.

Because past courts recognized the absurdity of such a

result, we have already rejected the argument that the

Tucker Act requires the District Court “to split” cases like

this “into two parts.” Bowen, 487 U. S., at 911. Rather,

having struck down unlawful agency action, the District

Court “also had the authority to grant the complete relief ”

that followed. Ibid.4 Under the rule the Court announces

——————

4 Not only does the Tucker Act not require splitting the case into two;

28 U. S. C. §1500 likely forbids it. That provision precludes Claims

Court jurisdiction over any claim that shares “substantially the same

operative facts” with a claim pending in another court, even if the claims

seek different relief. United States v. Tohono O’odham Nation, 563 U. S.

307, 317 (2011). So, besides the obvious inefficiency of recruiting two

courts to do what one could, §1500 likely precludes the sort of parallel-

track litigation the Court seems to envision. See ante, at 2 (KAVANAUGH,

J., concurring in part and dissenting in part) (explaining that today’s

order “means that the challenge to the grant terminations belongs for

now in the Court of Federal Claims and the arbitrary and capricious

claim belongs for now in the Federal District Court or the First Circuit”);

see, e.g., Solenex, LLC v. United States, 163 Fed. Cl. 128, 132–133 (2022).

Perhaps the district court and Claims Court actions can proceed seriatim

rather than simultaneously, assuming the statute of limitations does not

run in the meantime. But seriatim actions would raise tricky questions

of issue and claim preclusion. Cf. Petro-Hunt, LLC v. United States, 862

F. 3d 1370, 1385–1386 (CA Fed. 2017). The Court grapples with none of

these complexities before sending plaintiffs through the labyrinth it has

created.16 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of JACKSON, J.

today, however, no court can reinstate the plaintiffs’

grants—apparently, the Tucker Act “impliedly forbids” it.

5 U. S. C. §702. This novel reading of the Tucker Act

undermines not only Bowen’s holding but also the basic

remedial principles underlying it. Forget complete relief—

the reasoning of today’s order might leave plaintiffs unable

to obtain any effective relief at all.

To be specific: “Unlike the district courts, . . . the [Claims

Court] has no general power to provide equitable relief

against the Government or its officers.” United States v.

Tohono O’odham Nation, 563 U. S. 307, 313 (2011); see also

United States v. King, 395 U. S. 1, 3 (1969) (Claims Court

lacked jurisdiction over claim that was “not limited to

actual, presently due money damages” but rather sought a

declaratory judgment that governmental action “was

legally wrong”). This means, it seems, that the Claims

Court cannot reinstate unlawfully terminated grant

funding—a distinct remedy from the money damages that

JUSTICE BARRETT suggests are still available in the Claims

Court. See ante, at 4, n. 1. And while the Claims Court

does have authority to award money damages for a breach

of contract, it is not clear that it could do so here, where the

right the plaintiffs seek to vindicate “is not a contract right”

but a statutory one. See Crowley Govt. Servs., Inc. v.

General Servs. Admin., 38 F. 4th 1099, 1110 (CADC 2022).5

This result, it should be evident, is also impossible to

reconcile with the Court’s recent pronouncements. Not so

long ago, the Court insisted that “the party-specific

principles that permeate our understanding of equity”

instruct courts to award “complete relief ” to plaintiffs and

no relief to nonplaintiffs. CASA, Inc., 606 U. S., at ___, ___

——————

5 The Claims Court can adjudicate statutory claims but only those

derived from “money-mandating provisions.” Maine Community Health

Options v. United States, 590 U. S. 296, 324 (2020); United States v.

Navajo Nation, 556 U. S. 287, 290 (2009). No one contends that the APA

is such a provision.Cite as: 606 U. S. ____ (2025)

17

Opinion of JACKSON, J.

(slip op., at 8, 15). Today’s exercise of equity flips that

proposition on its head. Non-plaintiffs might see some

benefit from district courts’ vacatur of unlawful directives

because agencies will not be able to rely on them to cancel

grants going forward. But the plaintiffs who filed the

lawsuit will see none.

In a broader sense, however, today’s ruling is of a piece

with this Court’s recent tendencies. “[R]ight when the

Judiciary should be hunkering down to do all it can to

preserve the law’s constraints,” the Court opts instead to

make vindicating the rule of law and preventing manifestly

injurious Government action as difficult as possible. Id., at

___ (JACKSON, J., dissenting) (slip op., at 21). This is

Calvinball jurisprudence with a twist. Calvinball has only

one rule: There are no fixed rules.6 We seem to have two:

that one, and this Administration always wins.7

III

This Court has an obligation to balance the equities

before issuing the “extraordinary” relief of a stay pending

appeal, Graves v. Barnes, 405 U. S. 1201, 1203 (1972)

(Powell, J., in chambers), by “‘explor[ing] the relative

harms to applicant and respondent, as well as the interests

of the public at large,’” Barnes v. E-Systems, Inc. Group

Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305

(1991) (Scalia, J., in chambers) (quoting Rostker v.

Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in

——————

6 See Oxford English Dictionary (2025), https://www.oed.com/

dictionary/calvinball_n.

7 JUSTICE BARRETT’s separate opinion proves the point. It injects final

agency action into the case as an additional potential barrier to relief,

suggesting that the only challenge the order leaves open—the one to

agency guidance—is in fact foreclosed by a doctrine the Government does

not press. See ante, at 5–6; see also ante, at 4, n. 2 (opinion of GORSUCH,

J.) (indicating that plaintiffs lack standing to pursue vacatur of the

internal agency guidance).18 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of JACKSON, J.

chambers)); see also Nken, 556 U. S., at 435. If the Court

had bothered to do so here, the result would be plain.

At the threshold, before this Court even entertains the

factors required for granting a stay application, it ought to

ensure that the applicant faces the sort of true emergency

that warrants our consideration of its request and the

attendant interference with the standard review processes

pending in the lower courts—what I have elsewhere called

a “line-jumping justification.” Labrador v. Poe, 601 U. S.

___, ___ (2024) (JACKSON, J., dissenting from grant of stay)

(slip op., at 1).8 Here, the Government does not come close

to offering any reason for us to intervene. Its asserted

harm—its only asserted harm—is that it might have to

keep paying out grants it has already committed to paying

for the few months it will take to appeal the District Court’s

decision. Those payments are incremental, and the

Government does not so much as represent their cadence;

it gives zero information that would enable us to ascertain

how much money is on the line in the coming months.

——————

8 We do not have to decide this case—not in this posture, or, really,

ever. But see ante, at 2 (opinion of KAVANAUGH, J.). We exercise an

enormous amount of discretion even in the ordinary course. See

Supreme Court Rule 10 (“Review on a writ of certiorari is not a matter of

right, but of judicial discretion”). That discretion only expands when we

are presented with a request for extraordinary relief: Intervention in this

posture “is not a matter of right, but of discretion sparingly exercised.”

Supreme Court Rule 20. Thus, JUSTICE KAVANAUGH’s suggestion that

the Court has no choice but to decide the parties’ relative interim status

when an emergency application asks us to do so, see ante, at 2, comes

from nowhere; no rule of Supreme Court procedure supports it. What is

more, casting our role as compulsory when it comes to applications of this

sort contradicts decades of practice. “The opinions are legion in which

individual Justices, reviewing such requests in chambers, declined to

intervene—reiterating that ‘such power should be used sparingly and

only in the most critical and exigent circumstances.’ ” Libby v. Fecteau,

605 U. S. ___, ___ (2025) (JACKSON, J., dissenting from grant of

application for injunction) (slip op., at 4) (quoting Williams v. Rhodes, 89

S. Ct. 1, 2, 21 L. Ed. 2d 69 (1968) (Stewart, J., in chambers)).Cite as: 606 U. S. ____ (2025)

19

Opinion of JACKSON, J.

The Government fares no better under the traditional

stay factors, even if this Court’s attention were warranted.

As it did in California, the Court concludes that the

Government faces irreparable harm simply because the

plaintiffs do not pinky-promise to reimburse the

Government if the Government ultimately prevails.

Whether or not that correctly states the law of irreparable

harm, but see Nken, 556 U. S., at 433–434 (stay applicant

bears burden), the gauge by which the Court is measuring

harm seems significantly off.9 The harm that the plaintiffs

and the public will suffer from a stay plainly dwarfs the

purportedly irreparable injury to the Government if a stay

is denied. For the Government, the incremental

expenditure of money is at stake. For the plaintiffs and the

public, scientific progress itself hangs in the balance—along

with the lives that progress saves.

Make no mistake: Per the evidence in front of the District

Court, the forward march of scientific discovery will not

only be halted—it will be reversed. Because “studies and

researchers cannot be held in stasis,” “there is no way to

recover the lost time, research continuity, or training value

once disrupted.” 145 F. 4th, at 55 (internal quotation marks

omitted; emphasis deleted). Thus, yearslong studies will

lose validity. Animal subjects will be euthanized. Life-

saving medication trials will be abandoned. Countless

researchers will lose their jobs. And community health

——————

9 The Government promised grant money to the plaintiffs, and now it

has changed its mind. These things happen. Whether the law permits

the Government to terminate these grants in this manner is the nub of

the instant dispute. Even if the Government is ultimately deemed

entitled to do what it has done, why is it harmed (in any meaningful

sense) if it cannot recover the previously promised grant payments that

happen to issue while a court is deciding the lawfulness of its change of

heart? Far from being injurious, one might think that those interim

payments are a fair price to pay for the disruption the Government’s

choice to abruptly renege on its promises has caused.20 NATIONAL INSTITUTES OF HEALTH v. AMERICAN

PUBLIC HEALTH ASSN.

Opinion of JACKSON, J.

clinics (providing, inter alia, preventative treatment for

infectious diseases) will close. Ibid.

These harms extend well beyond the plaintiffs in this

case. Amici collectively representing the vast majority of

NIH grantees detail the devastating and irrevocable

damage to the “symbiotic relationship” between the

Government and the Nation’s research community that an

abrupt cessation of funding would cause, not to mention the

harm to the global primacy of American science. Brief for

AAMC et al. as Amici Curiae 3, 16–24. And, as Congress

recognized when it made the NIH the world’s largest public

scientific funder, scientific advancement lifts all boats. The

harm is not just to researchers who will lose their

livelihoods; vulnerable members of our society will also lose

the benefits of their research.

Notably, too, these considerations represent just the

consequences of a stay in this case. But the Court evidently

wishes to impose its cumbersome, multistep judicial-review

process on any grantee that attempts to preserve its

research advancements by filing a lawsuit (if indeed the

Court envisions any path to full recovery for such grantees

at all). So, take the aforementioned practical harms to the

researchers, subjects, and institutions that have filed the

instant lawsuits and multiply them—and again, and again,

and again.

A stay seems like a modest step. But it is an equitable

one, and equity ultimately aims to ensure fairness by

reducing harm. With this deployment of our equitable

powers, the Court permits precisely the sort of harm

equitable discretion exists to prevent.

* * *

At a time when the Executive Branch is racing to

terminate federal grants on a mass scale—and, according

to too many courts to count, often unlawfully—this Court

has now constructed a deeply inefficient and likelyCite as: 606 U. S. ____ (2025)

21

Opinion of JACKSON, J.

impotent scheme of judicial review for grant-related APA

claims (at least until plenary review forces

reconsideration). It has done so without bothering to assess

whether Congress intended such a scheme, and in a manner

that requires second-guessing the District Court’s

unchallenged factual findings, muddying basic legal

principles, and unraveling valuable scientific research.

The approach the Court adopts today (which, again, no

party advocated for) neither coheres legally nor operates

practically. So, unfortunately, this newest entry in the

Court’s quest to make way for the Executive Branch has

real consequences, for the law and for the public.

Fortunately, at least for the law, this order is not the last

word, as it is not “conclusive as to the merits.” Boyle, 606

U. S., at ___ (slip op., at 1). For the public’s sake, one can

only hope that affected grant recipients can find a way to

maintain their research studies—and their legal claims—

long enough to give the Court the chance to change its mind.