A federal court of appeals on Friday rejected efforts by the Trump administration to reopen a case related to the government”s mandatory provision of legal services for children facing deportation.

Litigation began in March after an “abrupt” but brief February decision by the Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR) to stop funding the Acacia Center for Justice “without explanation,” according to the 40-page complaint.

Days later, after “a significant backlash,” the funding for Acacia resumed. Then, roughly one month later, ORR sent a letter to Acacia and several other similarly situated organizations demanding they “immediately stop work” because funding had again been terminated.

In early April, U.S. District Judge Araceli Martínez-Olguín, a Joe Biden appointee, issued a temporary restraining order in the plaintiffs’ favor. That relief was extended by a preliminary injunction in late April.

In each instance, the government was ordered to continue funding the legal services providers under the auspices of the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) which says the government “shall ensure, to the greatest extent practicable,” that all unaccompanied children receive legal “counsel to represent them in legal proceedings” and to “protect them from mistreatment, exploitation, and trafficking,” the court explained.

The government, for its part, in successive pleadings before the court, argued the judge herself lacked jurisdiction – essentially and repeatedly insisting the plaintiffs were in the wrong court system.

Rather, the government says, the contract nature of the dispute means the litigation is governed by the obscure Tucker Act of 1887. Under this law, the U.S. Court of Federal Claims has jurisdiction to rule on “any claim” against the federal government that relies “upon any express or implied contract with the United States.”

Those arguments mirror an oft-attempted – sometimes successful – strategy by the U.S. Department of Justice to have similar legal services funding litigation removed from Article III courts.

The San Francisco-based district court rejected those arguments, in turn, and so did the U.S. Court of Appeals for the Ninth Circuit.

Now, the appellate court has rejected Tucker Act claims yet again.

In a 41-page order, inclusive of a concurrence and dissent, a broad majority of judges declined to rehear the DOJ’s arguments en banc.

Originally, a three-judge panel denied a request by the government to stay the preliminary injunction. The DOJ then asked for all 29 judges on the court to consider the case collectively. According to Friday’s order, only nine of those judges voted for such a do-over.

Two judges penned a concurrence – Circuit Judges William A. Fletcher and Lucy Koh, Bill Clinton and Joe Biden appointees, respectively.

“The bottom line is that Plaintiffs have no contract with the Government,” the concurrence begins. “They do not invoke any contractual terms as the basis for their action. Nor do they seek a contractual remedy from the Government. Rather, Plaintiffs seek declaratory and injunctive relief requiring compliance with the statutory obligations set out by Congress and the regulatory obligations set forth by Defendants themselves. Thus, as the district court put it, ‘Plaintiffs’ claims have no business before the [Court of Federal] Claims.'”

Fletcher and Koh derided the Trump administration for their “abrupt about-face” in cutting the funds – an action which occurred “just six days after the latest congressional appropriation.”

The concurrence also goes on to categorize the plaintiffs’ lawsuit as “garden-variety” claims under the Administrative Procedure Act (APA), the federal statute governing agency action.

Rejecting the Tucker Act jurisdictional argument, the concurrence says the key is what, exactly, the legal services groups are requesting.

“Plaintiffs challenge the Government’s broader policy of non-compliance with the TVPRA and the Foundational Rule through the complete termination of funding combined with no specified alternative means of compliance,” the concurrence goes on. “Plaintiffs have no contractual relationship with the Government.”

Notably, both Acacia and the plaintiffs in the present case sued separately, and on somewhat different facts and grounds.

In June, Acacia won a case related to legal services for immigrant children affected by the first Trump administration’s family separation policy. In that case, the government was bound by a court order and directed to rehire the group and enter back into the contract it tried to cancel.

The Acacia contract, however, is related to the case the Ninth Circuit declined to rehear – because the plaintiffs are subcontractors who were originally hired by Acacia itself.

The concurrence dismisses this aspect of the situation, at length:

The Government stated that it was terminating funding for “the Government’s convenience” in the Cancellation Order, but it provided no alternative plan to comply with the TVPRA and [ORR’s own rule related to the TVPRA]…Plaintiffs’ claims stem from the Government’s failure to comply with its statutory obligations under the TVPRA and regulatory obligations under the Foundational Rule, not the Acacia contract. And Plaintiffs’ requested relief “seek[s] to ensure representation for unaccompanied children in immigration proceedings, regardless of which lawyers provide it.” Such claims fall outside the jurisdictional bounds of the Tucker Act and squarely within the purview of the APA.

The dissent angrily rejects the concurrence’s reasoning.

“Though Plaintiffs style this suit as one premised on the APA, ‘in essence’ it’s contractual,” the dissent reads. “This dispute therefore belongs in the Court of Federal Claims, and we’re powerless to hear it. This should have been a hard point to miss.”

The concurrence takes direct issue with the dissent’s “Catch-22” reasoning – noting the plaintiffs, who are subcontractors, do not have a contract with the government.

“[I]t is one thing to say that a particular remedy is unavailable where the Tucker Act applies because the plaintiff may recover a different remedy in the Court of Federal Claims,” the concurrence snipes back. “It is quite another to say that an individual who cannot sue in the Court of Federal Claims for any remedy also may not sue in district court.”