Woonasquatucket River Watershed Council v. USDA

United States Court of Appeals For the First Circuit No. 25-1428 WOONASQUATUCKET RIVER WATERSHED COUNCIL; EASTERN RHODE ISLAND CONSERVATION DISTRICT; GREEN INFRASTRUCTURE CENTER; NATIONAL COUNCIL OF NONPROFITS; CHILDHOOD LEAD ACTION PROJECT; CODMAN SQUARE NEIGHBORHOOD DEVELOPMENT CORPORATION, Plaintiffs, Appellees, v. U.S. DEPARTMENT OF AGRICULTURE; BROOKE ROLLINS, in the official capacity as Secretary of Agriculture; U.S. DEPARTMENT OF ENERGY; CHRIS WRIGHT, in the official capacity as Secretary of Energy; U.S. DEPARTMENT OF THE INTERIOR; DOUG BURGUM, in the official capacity as Secretary of the Interior; U.S. ENVIRONMENTAL PROTECTION AGENCY; LEE ZELDIN, in the official capacity as Administrator of the Environmental Protection Agency; U.S. OFFICE OF MANAGEMENT AND BUDGET; RUSSELL VOUGHT, in the official capacity as Director of the Office of Management and Budget; KEVIN HASSETT, in the official capacity as Director of the National Economic Council; U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; SCOTT TURNER, in the official capacity as Secretary of Housing and Urban Development, Defendants, Appellants. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Mary S. McElroy, U.S. District Judge] Before Barron, Chief Judge, Lipez and Rikelman, Circuit Judges.  Sean R. Janda, with whom Brett A. Shumate, Assistant Attorney General, Sara Miron Bloom, First Assistant U.S. Attorney, Eric D. McArthur, Deputy Assistant Attorney General, Daniel Tenny, and Brian J. Springer were on brief, for appellants. Kevin E. Friedl, with whom Jessica Anne Morton, Robin F. Thurston, and Democracy Forward Foundation were on brief, for appellees. Vincent M. Nolette, Amy E. Turner, and Sabin Center for Climate Change Law, Columbia Law School on brief for the U.S. Conference of Mayors as amicus curiae supporting appellees. Andrea Moon Park and Massachusetts Law Reform Institute on brief for Jane Addams Senior Caucus, et al. as amici curiae supporting appellees. August 7, 2026  BARRON, Chief Judge. In this appeal, several federal agencies and agency heads challenge a district court order preliminarily blocking their actions to categorically freeze billions of dollars in federal financial assistance appropriated under the Infrastructure Investment and Jobs Act and the Inflation Reduction Act of 2022. We affirm in part and vacate in part. I. A. In 2021, Congress enacted the Infrastructure Investment and Jobs Act ("IIJA"). Pub. L. No. 117-58, 135 Stat. 429 (2021). The IIJA authorized appropriations for transportation and infrastructure projects, including federal highways, highway safety programs, and transit programs. In the following year, Congress enacted the Inflation Reduction Act of 2022 ("IRA"). Pub. L. No. 117-169, 136 Stat. 1818 (2022). The IRA provided funding to increase energy security and reduce greenhouse gas emissions. Various federal agencies administer grant programs pursuant to the IRA and the IIJA. On the first day of his second term in office, President Trump issued Executive Order No. 14154, titled "Unleashing American Energy." 90 Fed. Reg. 8353 (Jan. 20, 2025). We will refer to this executive order as the "Unleashing Executive Order." Section 2 of the Unleashing Executive Order announced nine "polic[ies] of the United States" related to energy - 3 - production, use, and regulation.1 Id. § 2. Section 7, titled "Terminating the Green New Deal," ordered: All agencies shall immediately pause the disbursement of funds appropriated through the [IRA] or the [IIJA] . . . and shall review their processes, policies, and programs for issuing grants, loans, contracts, or any other financial disbursements of such appropriated funds for consistency with the law and the polic[ies] outlined in . . . this order. Id. § 7(a). The Unleashing Executive Order also directed "all agency heads" to "submit a report to the Director of the [National Economic Council]" ("NEC") and "Director of [the Office of Management and Budget]" ("OMB") detailing the findings of their review. Id. It further provided that "[n]o funds" appropriated through the IRA or the IIJA were to be disbursed "until the 1 Those policies are: (1) "to encourage energy exploration and production on Federal lands and waters"; (2) "to establish our position as the leading producer and processor of non-fuel minerals"; (3) "to protect the United States's economic and national security and military preparedness by ensuring that an abundant supply of reliable energy is readily accessible"; (4) "to ensure that all regulatory requirements related to energy are grounded in clearly applicable law"; (5) "to eliminate the 'electric vehicle . . . mandate' and promote true consumer choice"; (6) "to safeguard the American people's freedom to choose from a variety of goods and appliances"; (7) "to ensure that the global effects of a rule, regulation, or action shall, whenever evaluated, be reported separately from its domestic costs and benefits"; (8) "to guarantee that all executive departments and agencies . . . provide opportunity for public comment and rigorous, peer-reviewed scientific analysis"; and (9) "to ensure that no Federal funding be employed in a manner contrary to the principles outlined in this section, unless required by law." Unleashing Executive Order § 2. - 4 - Director of OMB and Assistant to the President for Economic Policy have determined that such disbursements are consistent with any review recommendations they have chosen to adopt." Id. The next day, Matthew J. Vaeth, Acting Director of OMB, and Kevin Hassett, Assistant to the President for Economic Policy and Director of NEC, issued a memorandum regarding the Unleashing Executive Order to the heads of federal departments and agencies.2 We will refer to this memorandum as the "Unleashing Memorandum." The Unleashing Memorandum stated that "[t]he directive" in the Unleashing Executive Order "requires agencies to immediately pause disbursement of funds appropriated under the [IRA] or the [IIJA]." "This pause," the Unleashing Memorandum explained, "only applies to funds supporting programs, projects, or activities that may be implicated by the polic[ies] established in [s]ection 2" of the Unleashing Executive Order. The Unleashing Memorandum also informed recipients that, "[f]or the purposes of implementing section 7 of the [Unleashing Executive Order], funds supporting the 'Green New Deal' refer to any appropriations for objectives that contravene the policies established in section 2" of that order. "Agency heads may 2Memorandum from Matthew J. Veath, Acting Dir., Off. of Mgmt. & Budget, & Kevin Hassett, Assistant to the President for Econ. Pol'y & Dir., Nat'l Econ. Council, to Heads of Dep'ts & Agencies (Jan. 21, 2025) [https://perma.cc/Y7KB-784F]. - 5 - disburse funds as they deem necessary after consulting with [OMB]," the Unleashing Memorandum concluded. B. In March 2025, six nonprofit organizations filed a suit in the U.S. District Court for the District of Rhode Island that challenged various alleged final agency actions pertaining to the Unleashing Memorandum, including the issuance of the memorandum itself. The organizations are Woonasquatucket River Watershed Council; Eastern Rhode Island Conservation District; Green Infrastructure Center; Childhood Lead Action Project; Codman Square Neighborhood Development Corporation; and National Council of Nonprofits, a membership organization that filed suit on its members' behalf. We will refer to the plaintiffs, collectively, as the "Nonprofits." The Nonprofits' operative complaint3 alleged that the individual nonprofit plaintiffs as well as other organizations that were members of the National Council of Nonprofits had "been awarded grants and other financial assistance through the IRA and IIJA" either as direct recipients or subgrantees of direct recipients. The complaint went on to allege that, following the issuance of the Unleashing Memorandum, there had been a "freeze on funding appropriated by the IRA and IIJA," which resulted in the 3 The operative complaint is the Nonprofits' amended complaint. - 6 - individual nonprofit plaintiffs and member organizations of the National Council of Nonprofits being denied financial assistance pursuant to their grant awards and subawards. The complaint named the following defendants: OMB, the Director of OMB, and the Director of NEC (collectively, the "OMB Defendants"), as well as five other agencies and their respective agency heads (collectively, the "Agency Defendants"). Those other agencies are the Department of Energy ("DOE"), the Environmental Protection Agency ("EPA"), the Department of Housing and Urban Development ("HUD"), the Department of the Interior ("DOI"), and the Department of Agriculture ("USDA"). We will refer to the defendants collectively as the "Government." The complaint alleged that the OMB Defendants' directive in the Unleashing Memorandum to withhold financial assistance appropriated under the IRA and the IIJA, as well as the Agency Defendants' "blanket freeze[s]" of that assistance "en masse and on a non-individualized basis," violated the Administrative Procedure Act ("APA"). The complaint alleged that the directive in the Unleashing Memorandum, which was issued by the Director of OMB and the Director of NEC, constitutes final agency action. It also alleged that each of the agency-level decisions to categorically freeze the funds in question constitutes a final agency action. It further alleged that the challenged final agency actions are arbitrary and capricious, in excess of statutory - 7 - authority, and contrary to law. See 5 U.S.C. § 706(2)(A), (C). The Nonprofits sought declaratory and injunctive relief, including "a stay under 5 U.S.C. § 705." The Nonprofits thereafter filed a motion for a preliminary injunction. To secure such relief, a party must show "(1) a substantial likelihood of success on the merits, (2) a significant risk of irreparable harm if the injunction is withheld, (3) a favorable balance of hardships, and (4) a fit (or lack of friction) between the injunction and the public interest." NuVasive, Inc. v. Day, 954 F.3d 439, 443 (1st Cir. 2020) (quoting Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003)). To make the required showing, the Nonprofits submitted declarations that attested that the individual nonprofits and member organizations of the National Council of Nonprofits had not received expected disbursements of IRA or IIJA financial assistance or were unable to access the online payment portal for their grants. The Nonprofits then contended that the challenged directive by the OMB Defendants and the challenged decisions by the Agency Defendants caused them irreparable harm. As support, they pointed to the declarations attesting that those agency actions led to the cutoff of funds that would force -- and in some cases, already had forced -- the individual nonprofits and National Council of Nonprofits members to reduce hiring, "furlough - 8 - or lay off staff, shutter[] planned projects[,] and curtail[]" their work. The District Court granted the motion over the Government's opposition. It also issued a memorandum opinion explaining its reasoning. The District Court first addressed a number of threshold issues. It concluded that the Nonprofits adequately demonstrated subject matter jurisdiction under Article III of the U.S. Constitution. See U.S. Const. art. III, § 2, cl. 1. It also rejected the Government's argument that the Nonprofits' APA claims were barred by "[t]he pendency of a prior pending action in [a] federal court" that assertedly involved the same claims. Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849, 851 (1st Cir. 1947) (quoting 1 Moore's Federal Practice 237 (1st ed. 1938)). That case had been filed in the U.S. District Court for the District of Columbia. See Nat'l Council of Nonprofits v. Off. of Mgmt. & Budget, 775 F. Supp. 3d 100 (D.D.C.), appeal filed, No. 25-5148 (D.C. Cir. 2025). The District Court then addressed the Government's arguments based on the APA itself. It rejected the Government's argument that the Nonprofits had failed to identify any discrete agency actions by the defendants and so were bringing a "programmatic attack," which the APA does not permit. See Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). The District - 9 - Court held instead that the Nonprofits had identified seven such actions: "OMB and the NEC Director's decisions to issue the [Unleashing Memorandum] mandating a pause (one action from each) and [the Agency Defendants'] decisions to follow that guidance by summarily freezing IIJA and IRA funds (one action from each of the[] five agencies)." In addition, the District Court rejected the Government's argument that the Nonprofits' APA claims were essentially contract claims and therefore had to be brought under the Tucker Act in the U.S. Court of Federal Claims. See 28 U.S.C. § 1491(a). In rejecting this challenge to its statutory subject matter jurisdiction, the District Court explained both that the Nonprofits' APA claims did not depend on any contractual terms and that they sought a remedy that, though it may result in the disbursement of funds, was for prospective, equitable relief and not money damages. The District Court also concluded that the seven challenged agency actions, in requiring the freezing of already-awarded funds, likely were not "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). And, too, the District Court concluded that they likely were final agency actions for purposes of the APA. See id. § 704; Corner Post Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 808 (2024) (explaining that a final agency action under the APA is one that "marks the - 10 - consummation of the agency's decisionmaking process" and "by which rights or obligations have been determined, or from which legal consequences will flow" (citation modified)). The District Court further determined that the Nonprofits were likely to succeed in showing that the challenged final agency actions violated the APA. It did so on the grounds that the Nonprofits were likely to show that the challenged actions are both "arbitrary and capricious" and in excess of statutory authority.4 See 5 U.S.C. § 706(2)(A), (C). Having determined that the Nonprofits satisfied the "likelihood of success" factor of the test for obtaining a preliminary injunction, the District Court went on to explain that the balance of the equities under the remaining factors of that test favored them as well. Finally, the District Court addressed the scope of the preliminary injunction. It observed that the "normal remedy" for unlawful agency action is vacatur, see 5 U.S.C. § 706(2), and it reasoned that a universal preliminary injunction was therefore appropriate because "similarly situated nonparties . . . should not be forced to suffer the harms [of the likely unlawful agency actions] just because there was not enough time or resources for them to join the suit." 4The District Court declined to reach the Nonprofits' claim that the challenged agency actions are contrary to law under the IRA, the IIJA, and regulations governing the administration of federal awards. See 5 U.S.C. § 706(2)(A). - 11 -  The District Court's resulting order preliminarily "ENJOINED" the Agency Defendants from "freezing, halting, or pausing on a non-individualized basis the processing and payment of [already-awarded] funding" appropriated under the IRA or the IIJA and ordered them to "take immediate steps to resume the processing, disbursement, and payment" of such funds and "to release awarded funds previously withheld or rendered inaccessible." The order also directed the OMB Defendants to provide notice of the order to all the agencies that received the Unleashing Memorandum, informing such agencies that "they may not take any steps to implement, give effect to, or reinstate under a different name the unilateral, non-individualized directives" in the Unleashing Memorandum and they must "continue releasing any disbursements on open awards that were paused due to or in reliance on" the Unleashing Memorandum. Further, the order prohibited the Government from "implementing, giving effect to, or reinstating under a different name the directive in [the Unleashing Memorandum] to unilaterally freeze awarded funding appropriated under" the IRA or the IIJA. The Government timely appealed. II. We start with a threshold issue: whether the Nonprofits have shown, at this stage of the litigation, what they must to establish that they have Article III standing. See Anversa v. - 12 - Partners Healthcare Sys., Inc., 835 F.3d 167, 174 n.5 (1st Cir. 2016). "At the preliminary injunction stage, . . . the plaintiff must make a 'clear showing' that she is 'likely' to establish each element of standing." Murthy v. Missouri, 603 U.S. 43, 58 (2024) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). The three elements of Article III standing are (1) an injury-in-fact, (2) that is "fairly traceable" to the defendant's challenged conduct, and (3) "that is likely to be redressed by a favorable judicial decision." Conservation L. Found., Inc. v. Acad. Express, LLC, 129 F.4th 78, 86 (1st Cir. 2025) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). Our review is de novo. Id. A. The District Court determined that the individual nonprofit plaintiffs had Article III standing to bring their claims against the Agency Defendants after finding that they had met their burden to show that they had suffered an injury-in-fact traceable to the challenged conduct of each of those defendants. The District Court explained that the Nonprofits showed both that the Agency Defendants decided to "summarily freez[e] IIJA and IRA funds" and that the individual nonprofit plaintiffs suffered ongoing harms because of those decisions. On appeal, the Government does not dispute the District Court's determination that the individual nonprofit plaintiffs - 13 - have met their burden to show that they have standing as to the Agency Defendants that administer their grants. We agree that they have done so. The individual nonprofit plaintiffs alleged that they were awarded IRA or IIJA grants by USDA, EPA, or HUD as either direct grantees or subgrantees. They further alleged that they had been harmed by the actions taken by these agencies to withhold funds appropriated under those statutes. For the direct grantees, these allegations suffice to show that each suffered an injury-in-fact, see TransUnion LLC v. Ramirez, 594 U.S. 413, 417 (2021), that is fairly traceable to the challenged conduct, see Conservation L. Found., 129 F.4th at 90. And there is no dispute that the requested relief would redress these alleged injuries by precluding the Agency Defendants from relying on the challenged decisions to impose the categorical funding freezes. For the subgrantees, the District Court found that they did not receive their subgrant payments from the direct grantees because of the challenged funding freezes, as nothing in the record indicated that the direct grantees failed to pass on federal financial assistance that they had received. Because this finding is not clearly erroneous, we are satisfied that the individual nonprofit plaintiffs that are subgrantees also have carried their burden of showing that their injuries are traceable to the relevant - 14 - Agency Defendants' decisions to impose the funding freezes.5 See Dep't of Com. v. New York, 588 U.S. 752, 768 (2019) (finding traceability satisfied based "on the predictable effect of Government action on the decisions of third parties"). And, again, there is no dispute that the requested relief would provide redress to these plaintiffs. B. As to the individual nonprofit plaintiffs' standing to bring their claims against the OMB Defendants, the Government does not take issue with the District Court's determination that the record supportably shows that the Agency Defendants relied on the Unleashing Memorandum in adopting their categorical funding freezes. The Government also does not challenge the District Court's conclusion that the individual nonprofit plaintiffs therefore demonstrated a causal connection between the Unleashing Memorandum and their alleged injuries. Given what the record shows, we see no reason for concern either. So, here, too, we see no likely Article-III-standing bar, given that the requested relief would provide redress. 5 We understand the individual nonprofits plaintiffs to have each demonstrated standing as to the specific Agency Defendant that they identify as administering their grant. - 15 -  C. The Government has more to say about standing when it comes to the National Council of Nonprofits. That organization premises its standing on the standing of certain of the members that it represents rather than on any injury that it has directly suffered. To establish standing on that representative basis, the National Council of Nonprofits must meet a three-part test. It must show that (1) "its members would otherwise have standing to sue in their own right;" (2) "the interests it seeks to protect are germane to the organization's purpose;" and (3) "neither the claim nor the requested relief requires the participation of individual members in the lawsuit." Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 199 (2023) (quoting Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977)). The Government does not dispute that the National Council of Nonprofits would meet this test if it qualified as a membership organization. It contends, however, that the organization does not so qualify and therefore lacks what is often referred to as organizational standing. Relying on the Fifth Circuit's nearly three-decade-old decision in Friends of the Earth, Inc. v. Chevron Chemical Co., 129 F.3d 826 (5th Cir. 1997), the Government maintains that an organization may assert standing on behalf of its members only if - 16 - it explains "how its members direct or control the organization" and presents "'indicia of membership' such as a 'clearly articulated and understandable membership structure' with members who 'elect[] the governing body.'" (Quoting id. at 829 (alteration in original).) The Government then contends that the National Council of Nonprofits has not done so. In Students for Fair Admissions, however, the Supreme Court rejected the Government's position about what a membership organization must show to establish standing based on its asserted members' standing. 600 U.S. at 200-01. The Court there explained that the "indicia of membership" analysis on which the Government now relies "has no applicability" when the group advancing organizational standing is "a voluntary membership organization with identifiable members." Id. at 201. So long as such a group "has identified members and represents them in good faith," the Court explained, no "further scrutiny" into its operation is required. Id. The National Council of Nonprofits has made that showing here. Indeed, the Government does not suggest otherwise. Thus, this ground for challenging the standing of the National Council of Nonprofits fails. That said, the National Council of Nonprofits also must make the requisite showing under the three-part test for establishing standing set forth above. But we conclude that it - 17 - has, save for its claims pertaining to one of the Agency Defendants insofar as it means to bring those claims against that defendant. As to the first part of the three-part test, the National Council of Nonprofits has identified members that receive financial assistance from USDA, EPA, DOE, and DOI through grants appropriated under the IRA and the IIJA. Because these members include two of the individual nonprofit plaintiffs that we have already determined have sufficiently demonstrated their standing to bring their claims against these agencies as well as the OMB Defendants, the National Council of Nonprofits has met its burden as to the first part of the applicable standing test.6 In addition, the complaint alleges that the organization's mission is to "support[] nonprofits in advancing their missions." Therefore, the National Council of Nonprofits also has satisfied the second part of that test, as the interests 6 Althoughthe Government submitted a declaration stating that DOE had restored regular approval authority for disbursements of obligated IRA and IIJA funds on February 24, 2025, a member of the National Council of Nonprofits responded with a declaration of its own, which indicated that claims for payment were not accepted by DOE until late March. Notably, the Government does not argue on appeal that the National Council of Nonprofits is unlikely to establish that, at the time the complaint was filed, DOE continued to categorically freeze disbursements for grants funded by the IRA or the IIJA. Nor does the Government advance any argument on appeal that DOE's March payments moot the case. Cf. Fed. Bureau of Investigation v. Fikre, 601 U.S. 234, 241 (2024) (stating that voluntary cessation of the challenged conduct can, on a proper showing, moot the lawsuit). - 18 - that the organization seeks to advance through this lawsuit are germane to its purpose. As to the test's third part, we again see no problem. Given the nature of the APA claims and the universal relief sought via those claims, we see no reason why the individual members of the National Council of Nonprofits that have standing would need to participate in the suit. The only potential wrinkle is that the National Council of Nonprofits has not identified any of its members that receive financial assistance from HUD through grants appropriated under the IRA or the IIJA. That is the only Agency Defendant, however, for which no such showing has been made by this organization. Thus, to the extent that the National Council of Nonprofits seeks to represent its members in claims against HUD, it has not made the requisite "clear showing" that any of its members "likely" has an injury-in-fact that is traceable to that agency. Murthy, 603 U.S. at 58 (quoting Winter, 555 U.S. at 22). For that reason, insofar as the National Council of Nonprofits seeks to bring claims against HUD, we cannot conclude that it has established that it has standing to bring them. III. We now turn to the Government's remaining challenges on appeal to the District Court's decision to grant preliminary relief - 19 - to the Nonprofits.7 The parties agree that, in assessing these challenges, we must assess the District Court's decision under an abuse of discretion standard. See Cent. Me. Power Co. v. Me. Comm'n on Governmental Ethics & Election Pracs., 144 F.4th 9, 19 (1st Cir. 2025). The parties further agree that, under that standard, we review questions of law de novo and factual findings for clear error. Id. The parties also appear to agree on one more thing -- that, in applying the abuse of discretion standard in conducting our review, our focus must be on the four-part test described above that determines whether an order granting preliminary injunctive relief is appropriate. See NuVasive, 954 F.3d at 443. We follow the parties' lead. 7 As noted above, the District Court separately addressed an issue concerning its statutory subject matter jurisdiction -- namely, whether the sovereign immunity of the United States bars the Nonprofits' lawsuit from being brought in federal district court insofar as the "essence" of their APA claims "is in contract." Am. Sci. & Eng'g, Inc. v. Califano, 571 F.2d 58, 63 (1st Cir. 1978). We agree with the District Court that the "essence" of the Nonprofits' claims is not contractual. Their APA claims do not turn on the terms of any contracts, and they sought APA remedies that included vacating the challenged agency actions. See 5 U.S.C. §§ 705-706. Notably, though, on appeal, the Government frames the issue of sovereign immunity as one that concerns the propriety of the scope of the relief that was ordered insofar as that relief "compel[s] continued payment of funds under grants" rather than whether the claims themselves are barred. In light of this framing, we address this question about sovereign immunity in Part IV, when we address the propriety of the scope of the relief that was ordered. See New York v. Trump, 171 F.4th 1, 26 n.11 (1st Cir. 2026). - 20 -  A. With respect to the "likelihood of success" factor, the Government advances a number of arguments as to why the Nonprofits are not likely to succeed on their APA claims. We are not persuaded. 1. The Government first reprises its argument to the District Court that the Nonprofits -- or, at least, some of them -- impermissibly split their claims into two separate lawsuits: the suit in the U.S. District Court for the District of Rhode Island that gives rise to this appeal and a suit that was brought by some of the same plaintiffs in the U.S. District Court for the District of Columbia. See Nat'l Council of Nonprofits, 775 F. Supp. 3d 100. The Government rests this contention on the established understanding that when "'actions involving the same parties and similar subject matter are pending in different federal district courts' and 'the overlap between the two suits is nearly complete[,] . . . the usual practice is for the court that first had jurisdiction to resolve the issues and the other court to defer.'" Maldonado-Cabrera v. Anglero-Alfaro, 26 F.4th 523, 526 (1st Cir. 2022) (quoting TPM Holdings, Inc. v. Intra-Gold Indus., Inc., 91 F.3d 1, 4 (1st Cir. 1996)). Under our precedent, though, "where the overlap between [the] two suits is less than complete," the decision to defer "is - 21 - made case by case, based on such factors as the extent of overlap, the likelihood of conflict, the comparative advantage and the interest of each forum in resolving the dispute." TPM Holdings, 91 F.3d at 4 (citation omitted). The Government does not dispute that the "overlap" between the two cases here is less than complete. Nonetheless, the Government points to several apparent similarities that it contends show that the Nonprofits have split their claims despite the lack of complete overlap. Those similarities are shared counsel, overlapping plaintiffs,8 and parallel allegations challenging "a categorical [funding] freeze directed by OMB." The only claims alleged in the suit before us are APA claims, though, and each of them requires close analysis of the specific agency action that is being challenged. Moreover, as the District Court explained, those claims challenge the OMB Defendants' "decisions to issue the [Unleashing Memorandum] mandating a pause," "along with [the Agency Defendants'] funding freezes arising from" it. The lead plaintiff in the action filed in the District of 8 Columbia is the National Council of Nonprofits, and, in that capacity, it seeks relief on behalf of its members. Nat'l Council of Nonprofits v. Off. of Mgmt. & Budget, 763 F. Supp. 3d 36, 44-46 (D.D.C. 2025). In their briefing to us, the Nonprofits acknowledge that four of the five individual nonprofit plaintiffs in the suit at hand are members of the National Council of Nonprofits. - 22 -  By contrast, as the District Court noted, the plaintiffs in the District of Columbia case challenged a different OMB directive to pause federal financial assistance, and they did not challenge any separate agency funding freezes. See Nat'l Council of Nonprofits, 775 F. Supp. 3d at 109-10, 124. Furthermore, the memorandum challenged in the District of Columbia was withdrawn (at least nominally), see id. at 110-11, 117-18, while the Unleashing Memorandum was not. We recognize that the OMB memorandum at issue in the District of Columbia proceeding directed a "temporary pause" on all activities related to obligating or disbursing federal financial assistance that may be implicated by seven executive orders issued in the first days of President Trump's second term in office. See id. at 109-10. We also recognize that one of those executive orders is the Unleashing Executive Order. Id. at 109. Even still, an assessment of the lawfulness of the Agency Defendants' actions taken pursuant to the Unleashing Executive Order and Unleashing Memorandum (as well as of the lawfulness of the Unleashing Memorandum itself) does not require an assessment of whether the OMB directive challenged in the District of Columbia lawsuit is lawful. Therefore, our resolution of the Nonprofits' claims does not necessarily depend on the resolution of the same issues as the plaintiffs' claims in the District of Columbia lawsuit, or vice versa. Accordingly, we do not see how the - 23 - pendency of the District of Columbia case suffices to show that the District Court likely abused its discretion by entertaining the Nonprofits' preliminary injunction motion. See TPM Holdings, 91 F.3d at 4 (holding that a New Hampshire district court did not abuse its discretion by hearing a title dispute that implicated a contract claim filed in Texas because resolution of the title dispute did not require assessment of the merits of the contract claim). 2. The Government next argues that the Nonprofits are unlikely to succeed on their APA claims because those claims fail to challenge a final agency action within the meaning of that statute. See 5 U.S.C. §§ 551(13) (defining agency action), 701(b)(2) (similar), 704 (authorizing judicial review of final agency actions). The Government argues that the Nonprofits' claims against the Agency Defendants advance only a "programmatic attack" under the APA, which "the Supreme Court rebuffed in Norton [v. Southern Utah Wilderness Alliance, 542 U.S. 55, 66-67 (2004)]" precisely because the challenge there failed to take aim at any discrete final agency action. We recognized in New York v. Trump that "Norton does make clear that the APA permits review of only discrete final agency actions and precludes the kind of programmatic attack" rejected by the Supreme Court in Lujan v. National Wildlife - 24 - Federation, 497 U.S. 871 (1990). New York v. Trump, 171 F.4th 1, 18 (1st Cir. 2026) (citation modified). But we also explained in New York that Norton goes on to clarify that the object of the "programmatic attack" in Lujan -- the Bureau of Land Management's (BLM) so-called "land withdrawal review program" -- "was not itself an agency action." Id. (citation modified); see also Lujan, 497 U.S. at 890 (explaining that the term "'land withdrawal review program' . . . does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regul