United States Court of Appeals
                             FOR THE DISTRICT OF COLUMBIA CIRCUIT
                                      ____________
No. 25-5158                                                 September Term, 2024
                                                                        1:25-cv-00799-RCL
                                                        Filed On: May 7, 2025
RFE/RL, Inc.,

              Appellee

       v.

Kari Lake, in her official capacity as Senior
Advisor to the Acting CEO of the United
States Agency for Global Media, et al.,

              Appellants


       BEFORE:       Pillard*, Katsas, and Rao, Circuit Judges

ORDER

      Upon consideration of the motion for stay pending appeal, the response thereto,
and the reply; the motion for expedited consideration; and the administrative stay
entered on May 1, 2025, it is

      ORDERED that the motion for stay pending appeal be granted. A per curiam
concurring statement and a dissenting statement of Judge Pillard are attached. It is

       FURTHER ORDERED that the administrative stay entered in the above-
captioned case be dissolved.


                                        Per Curiam


                                                          FOR THE COURT:
                                                          Clifton B. Cislak, Clerk

                                                  BY:     /s/
                                                          Selena R. Gancasz
                                                          Deputy Clerk


*Judge Pillard dissents from the grant of the motion for stay.
    PER CURIAM: For the following reasons, we grant the
government’s motion for a stay pending appeal.
                               I
    The United States Agency for Global Media oversees six
federally funded broadcast networks. Among these is plaintiff-
appellee Radio Free Europe/Radio Liberty, which operates as
a private, non-profit corporation. Through appropriations,
Congress has allocated specific funding for RFE/RL, which
USAGM disburses through grants. E.g., Further Consolidated
Appropriations Act of 2024, 

div. F, tit. I,

, 735; Explanatory Statement Submitted by Ms.
Granger, Chair of the House Committee on Appropriations,
Regarding H.R. 2882, Further Consolidated Appropriations
Act, 2024, 170 Cong. Rec. H1501, H2089 (Mar. 22, 2024).
USAGM entered grant agreements providing funding to
RFE/RL through the end of February 2025. That month, the
agency also began negotiating a grant agreement with RFE/RL
for Fiscal Year 2025. RFE/RL signed the agreement on
February 27, but USAGM never returned a countersigned
copy.
     On March 14, 2025, the President issued Executive Order
14238, which directed USAGM leadership to reduce the
agency to the minimum level of operations required by statute.

. The next day, USAGM purported to
terminate RFE/RL’s grant agreements. Shortly thereafter,
RFE/RL filed a complaint and moved for a temporary
restraining order compelling USAGM to disburse $7.5 million
to RFE/RL, which the network described as covering its grant
entitlements for March 1–15. The network also sought a
preliminary injunction “ordering USAGM to effectuate further
grant agreements with RFE/RL to disburse the funds that
Congress had appropriated through September 30, 2025.”
RFE/RL, Inc. v. Lake, No. 25-CV-799, 

, at
*2 (D.D.C. Apr. 29, 2025). In response, USAGM disbursed
the requested funds and later entered a grant agreement
                                 2
providing funding for March 15–31 on the same terms as
RFE/RL’s grant agreement for Fiscal Year 2024.
     On April 9, 2025, USAGM proposed a new “Master Grant
Agreement” for Fiscal Year 2025, which differed significantly
from prior agreements. Rather than sign, RFE/RL moved for a
TRO “seeking immediate disbursement of congressionally
appropriated funds for the period from April 1 to April 30,
2025, totaling $12,178,590.” RFE/RL, 

, at
*3. The district court stayed its hand for a time while
negotiations continued. But on April 29, the court ordered
USAGM to: (1) “immediately enter into a grant agreement
with [RFE/RL] covering April 2025 under the same terms and
conditions applicable to the most recent master grant
agreement between the parties, in materially identical terms to
the agreement between the parties pertaining to March 2025”;
and (2) “immediately disburse RFE/RL’s April funding in the
amount of $12,178,590.” 

.
    USAGM appealed and sought a stay of the TRO.1 Because
of imminent funding deadlines, both sides have requested
expedited consideration of the stay motion.
                                 II
     To resolve the stay motion, we consider whether the
government is likely to prevail on appeal, any irreparable harm
to the government, harms to the plaintiffs and others, and the
public interest. See Nken v. Holder, 

, 425–26


    1
        While TROs are ordinarily unappealable, that rule does not
apply where the TRO functions as a de facto preliminary injunction
by, for instance, ordering the immediate disbursement of funds that
cannot later be recouped. See Dep’t of Educ. v. California, 

, 968 (2025) (citing Sampson v. Murray, 

 (1974)
and Abbott v. Perez, 

, 594 (2018)).
                               3
(2009). Applying these factors, we conclude that a stay is
warranted.
                               A
     The government is likely to succeed on the merits of its
challenges to both terms of the district court’s injunction.
                               1
     The district court concluded that USAGM arbitrarily
refused to enter into a one-month extension agreement to
disburse a portion of RFE/RL’s appropriated funds at similar
levels to those that “in the usual course of events” would have
covered its needs for the month of April. RFE/RL, 

, at *6–7. As a result, the court ordered the agency to
enter into an agreement with the “same” terms contained in past
agreements between USAGM and RFE/RL. 

. The
district court had jurisdiction to consider whether the governing
statutes required USAGM to form such an agreement. See,
e.g., Boaz Housing Auth. v. United States, 

,
1367–69 (Fed. Cir. 2021); Lummi Tribe v. United States, 

, 1317–18 (Fed. Cir. 2017).
     On the merits, we think the government is likely to
succeed. We assume arguendo that the parties’ failure to reach
a new agreement reflected reviewable final agency action by
USAGM, as opposed to the ebb-and-flow of ongoing contract
negotiations. Even so, the district court had no basis for
binding the agency to all of the terms contained in earlier grant
agreements. The governing statute gives USAGM significant
latitude to establish appropriate terms for grant agreements. It
provides that grants to RFE/RL “shall only be made in
compliance with a grant agreement,” and requires USAGM to
“establish guidelines for such grants.” 

(g). It
also instructs USAGM to limit grant funding to “activities
which the Agency determines are consistent” with the general
                               4
statutory purpose to support international broadcasting. See 

§§ 6207(g)(1), 6201. And it permits USAGM to defund
RFE/RL if the agency determines, “at any time,” that RFE/RL
is not carrying out that purpose “in an effective and economical
manner.” Id. § 6207(d). Given this degree of agency
discretion, we think it unlikely that USAGM could be
prohibited from seeking to renegotiate any terms in the grant
agreement—a complex government contract reflected in some
31 pages of fine print. See Grant Agreement Between the U.S.
Agency for Global Media and RFE/RL, Inc., FAIN: 1060-24-
GO-00001, RFE/RL, Inc. v. Lake, No. 25-cv-799 (D.D.C.),
ECF Doc. 33-2, Ex. 1 at 2–34.
                               2
     The district court further ordered USAGM to disburse
funds under the terms of the contract extension that it had
ordered. For reasons explained in a related case, we conclude
that the court likely lacked jurisdiction to order the payment of
funds owed under a grant agreement. Widakuswara v. Lake,
No. 25-5144, 

, *3–5 (D.C. Cir. May 3,
2025).
                               B
     For substantially the same reasons discussed in
Widakuswara, we also conclude that the remaining Nken
factors on balance support a stay. See 

, *5–
6.
     PILLARD, Circuit Judge, dissenting: I would deny the
government’s stay motion largely for the reasons stated in my
statement dissenting from the order granting a stay pending
appeal in the parallel cases brought by Radio Free Asia (RFA)
and Middle East Broadcasting Networks (MBN), whose
appropriated funds the government has also impounded. See
Widakuswara v. Lake, No. 25-5144, 

, at *6-
16 (D.C. Cir. May 3, 2025) (Pillard, J., dissenting). Here, as
there, the Tucker Act does not deprive the district court of
jurisdiction. And here, as there, the government has failed to
show that it would suffer irreparable harm from waiting for a
panel of this court to rule on its Tucker Act defense on a non-
emergency basis. Finally, as in the companion cases, the public
interest cuts strongly against staying the TRO ordering
payment of Radio Free Europe/Radio Liberty’s (RFE/RL)
April 2025 allotment, which is past due. The district court
found, and the government does not dispute, that the Network
is “on the brink of collapse.” RFE/RL, Inc. v. Lake, No. 1:25-
CV-799-RCL, 

, at *3 (D.D.C. Apr. 29,
2025) (Lamberth, J.). Congress itself has declared the
continued operation of RFE/RL to be in the public interest, see

(3), and the district court was not required to
stand aside and allow the agency to shut it down.

     1. In Part I.B. of my statement in Widakuswara v. Lake, I
explained why the government is unlikely to succeed on the
merits of its assertion that the Tucker Act deprives the district
court of jurisdiction over the Networks’ statutory and
constitutional claims. All I would add is that RFE/RL’s
slightly different circumstances underscore the fallacy at the
heart of the government’s position and vividly illustrate why
none of the Networks’ claims belong in the Court of Claims.
Not only does RFE/RL’s complaint make no contract claim,
but RFE/RL has no contract that it could be seeking to enforce
“disguised” as something else. See Megapulse, Inc. v. Lewis,

 (D.C. Cir. 1982). The plaintiffs here and in
the parallel RFA and MBN cases all challenge the
                               2
government’s impoundment of funds that Congress
appropriated for the explicit purpose of sustaining the
Networks’ operations. Each Network’s claim of entitlement to
funding originates not in a contractual agreement, but in
binding congressional enactments establishing and funding the
Networks, and constitutional restrictions preventing unilateral
executive action to countermand what Congress and the
President put in place.

   As Judge Lamberth succinctly explained in granting the
TRO at issue here:

     The current Congress and President Trump enacted
     a law allocating funds to the plaintiffs. Under the
     Administrative Procedure Act, actors within the
     Executive Branch do not have carte blanche to
     unilaterally change course, withhold funds that the
     President and the Legislature jointly agreed to
     spend, and functionally dismantle an agency that the
     President and Legislature jointly agreed to support.
     If the Executive wishes to withhold or reallocate
     these funds, there is a statutory rescission process in
     place for them to seek the approval of Congress to
     do so. This process assures that the will of the
     people,     expressed      through     their elected
     representatives, is borne out. But the defendants
     have not followed that process here. As I see it, if
     the defendants are aggrieved by these decisions,
     their problem is not with the Court, but with
     Congress and the President, and it is with them that
     the defendants should seek redress.

RFE/RL, Inc., 

, at *10.
                                3
     2.    For the reasons I already gave to reject the
government’s claim of irreparable harm, see Widakuswara,

, at *15 (Pillard, J., dissenting), I add one
further thought. The government urges that it is likely to
succeed in establishing that the district court lacks jurisdiction
over plaintiffs’ complaint because it belongs in the Court of
Claims. But, in the absence of a showing of irreparable harm,
we would wait to decide in the ordinary course whether the
government prevails on that point. Only where there is the
added ingredient of irreparable harm does the law consider the
ordinary wait so untenable as to allow us to stay a likely-
erroneous district court order. The harm asserted here,
however, does not justify imposing a stay that provisionally
decides the jurisdictional issue in the government’s favor
pending resolution of the appeal—and watching the Network
vanish in the meantime.

     The irreparable harm the government claims, which the
panel credits, is only the imminent prospect of having to pay
one month’s worth of past-due funds that Congress
appropriated for RFE/RL’s operation during April. Yet the
government does not even link that asserted harm to its claimed
likelihood of success in shifting the case to the Court of Claims
under the Tucker Act. The government gives us no reason to
think it would be entitled in the Court of Claims to withhold
the funds the district court required it to pay. That brings into
sharp relief what the government is doing: It claims irreparable
harm and obtains a stay by insisting the case likely belongs in
the Court of Claims, not based on any reason to think that court
can or will approve its impoundment of funds, but as a strategy
to run down the clock, avoid complying with the existing TRO,
and starve RFE/RL out of existence.

    3. The balance of the equities also disfavors the stay for
reasons that parallel those I discussed in Widakuswara. 2025
 

, at *14 (Pillard, J., dissenting). RFE/RL faces
existential harm from our stay of the district court’s temporary
restraining order. The Network relies on the government for
99 percent of its funding. Fourth Capus Decl. ¶ 20. Because it
has not received its funding, RFE/RL has been forced to steeply
scale back its operations, including by furloughing more than
400 employees, canceling contracts with “nearly all of its
freelance journalists,” and canceling leases for several bureaus.
See 

. It has been unable to make lease payments
for its offices, including payments for 24 locations that were
due on May 1. See 

. Without the restoration of its
funding, RFE/RL will be unable to pay for security services for
its journalists, staff, and facilities—often located in “countries
where RFE/RL journalists have been targeted for attack by
terrorist organizations, criminal elements, and governments
that are hostile to RFE/RL’s reporting.” Compl. ¶ 43. The
factual record is undisputed that RFE/RL “will have no choice
but to close down the vast majority of the organization” this
month if its funding is not released. Fourth Capus Decl. ¶ 28.

     4. Finally, my colleagues conclude that the district court
overstepped when it ordered the agency to make the overdue
April payment to the Network under a one-month agreement
with the “same” terms contained in past agreements between
USAGM and RFE/RL. RFE/RL, Inc., 

, at
*10. But the per curiam stay order omits the crucial context
that makes clear why that TRO was entirely appropriate.

    USAGM and RFE/RL had used essentially the same
annual Master Grant Agreement since 2011 to facilitate the
disbursement of funds, negotiating a few minor changes over a
couple of weeks before the start of each new fiscal year. 

; Fourth Capus Decl. ¶ 2. In mid-February 2025, USAGM
proposed a slightly amended version of the Master Grant
Agreement for FY 2025, the parties negotiated for a week,
                               5
USAGM sent a final version on February 27 for RFE/RL’s
approval, and the Network promptly signed and returned it.
RFE/RL, Inc., 

, at *2. USAGM then sat on
the agreement without countersigning it, withheld the
Network’s funds, and was unresponsive to its queries. Id.;
RFE/RL Opp’n at 9-10. On March 15, USAGM sent RFE/RL
a letter abruptly terminating its grant entirely. RFE/RL, Inc.,

, at *3.

     After RFE/RL filed suit on March 18 and requested a TRO
to disburse its funds, the agency acted just before the court
hearing to release the Network’s funds for the first half of
March. 

 “In the normal course, RFE/RL receives its funding
at the beginning of each month.” Fourth Capus Decl. ¶ 19.
When RFE/RL sent another funding request at the end of
March to cover the rest of March and all of April, however, the
agency sent a short grant agreement “incorporating the terms
and conditions of the FY Grant Agreement” to cover funding
only for March 15-31. RFE/RL, Inc., 

, at *3.
The Network signed the agreement and on April 8 received the
balance of the March funds, but none for April. 

     Then, on April 9, the agency refused to renew the
Network’s Master Grant Agreement unless it agreed to a
“radically different grant agreement” from the one already
negotiated and signed by RFE/RL at the agency’s request. 

. The agency’s new version contained “provisions to
which [the Network] cannot lawfully or practically assent.” 

. Indeed, the long list of new and extraordinary terms in
the newly proposed Master Grant Agreement suggests that it
would not secure the Network’s funds but effectively sign
away any right to them. See, e.g., Fourth Capus Decl. ¶¶ 4, 6,
9, 10. Even so, the court initially refrained from granting the
plaintiffs’ request for a TRO “because negotiations over the
                               6
new grant agreement were still ostensibly underway.”
RFE/RL, Inc., 

, at *3.

     By the end of April, however, the district court found that
the agency’s persistent and “unexplained refusal” to enter into
a one-month extension of the prior grant agreement suggested
that the “defendants are trying to strongarm [the Network] into
signing their latest version of the Master Grant Agreement.” 

. The court concluded that the agency’s “stonewalling”
put the Network “up against the clock as its funding quickly
runs out,” threatening a “complete gutting of [the Network’s]
infrastructure.” 

. To prevent that outcome, the
district court ordered the agency to agree to provide the
Network with its April funding—which the agency had already
delayed by a month, 

 at *3—under a “mini agreement” or
“bridge agreement” extending the terms of the previous grant
agreement to enable payment for an additional month. 

.

     Under these circumstances, I cannot agree with my
colleagues that the district court lacked any “basis for binding
the agency to all of the terms contained in earlier grant
agreements.” Stay Op. at 3. The justification was clear and
amply supported the district court’s grant of incremental and
limited relief. The court was not required to stand by and allow
the government to continue to withhold the appropriated funds
“until the [Network] is forced out of existence.” RFE/RL, Inc.,

, at *6 & n.5.

                             ***

    The district court acted within its sound discretion to enter
a TRO permitting the disbursement of RFE/RL’s April
funding. Because the government has not made the requisite
showings to support a stay and the harm to RFE/RL is
                               7
existential, I respectfully dissent from the panel’s decision to
grant the stay pending appeal.