Ninth Circuit bars DOT, FAA from requiring grant recipients to make antidiscrimination certifications in certain cases

The United States Court of Appeals for the Ninth Circuit has partially upheld a federal district court’s order preliminarily enjoining the Trump Administration from requiring recipients of federal transportation grants to certify that they do not operate unlawful diversity, equity, and inclusion (DEI) initiatives and to agree that such certification is material under the False Claims Act (FCA).

However, the Ninth Circuit narrowed the preliminary injunction, allowing the US Department of Transportation (DOT) and the Federal Aviation Administration (FAA) to require grant recipients to certify that they do not violate federal anti-discrimination law in any federally funded programs they operate.

The preliminary injunction in County of King v. Turner, No. 25-3664 (9th Cir. Aug. 25, 2026) only applies to the case’s plaintiffs, who are all local governments. However, the Ninth Circuit’s reasoning applies similarly to any federal grant recipient. As such, the decision provides binding precedent for district courts throughout the Ninth Circuit to enjoin DOT and the FAA from requiring other grant recipients to sign those certifications.

Case background

In early 2025, DOT and several of its operating administrations, including the FAA, began requiring those seeking federal grants to make new certifications regarding DEI and immigration enforcement. These certifications state that the grant applicant or recipient:

• “Certifies that it does not operate any programs promoting diversity, equity, and inclusion (DEI) initiatives that violate any applicable Federal anti-discrimination laws” (DEI Certification),


• “Agrees that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of [the FCA]” (FCA Certification), and


• “Will cooperate with Federal officials in the enforcement of Federal law, including cooperating with and not impeding U.S. Immigration and Customs Enforcement (ICE) and other Federal offices and components of the Department of Homeland Security in the enforcement of Federal immigration law” (Immigration Certification).

Several dozen local governments and public agencies sued in the US District Court for the Western District of Washington to preliminarily and permanently enjoin DOT and the FAA from requiring the certifications.[1] The district court granted the preliminary injunction, holding that the federal agencies had likely exceeded their statutory authority and unconstitutionally impeded Congress’s power to direct federal spending – and thus violated the Administrative Procedure Act.

The Trump Administration appealed the preliminary injunction of the DEI and FCA certifications, and several certifications required by the US Department of Housing and Urban Development, to the Ninth Circuit. However, it did not appeal the preliminary injunction of the Immigration Certification, which therefore remains in effect while the case remains pending in the district court.

Ninth Circuit blocks FCA Certification but allows narrowed DEI Certification

By a 2–1 vote, a Ninth Circuit panel upheld the district court’s preliminary injunction of the FCA Certification but held that the Trump Administration could require grant recipients to certify that they do not illegally discriminate in federally funded programs.

The DEI Certification

The Ninth Circuit held that the federal government could require grant recipients to certify compliance with federal anti-discrimination laws in federally funded programs. By contrast, the court held that the Administration could not require grant recipients to certify that they comply with anti-discrimination laws in local programs that receive no federal funding.

The court explained that the power to attach conditions to the receipt of federal funds is part of the power to spend federal dollars, a power that the US Constitution “exclusively committed to Congress.”[2] Through Title VI of the Civil Rights Act of 1964, Congress authorized federal agencies to withhold grant funds from recipients who violate Title VI, a key anti-discrimination law. However, the Ninth Circuit emphasized that Congress only required grant recipients to comply with Title VI “under any program or activity receiving Federal financial assistance.”[3]

Therefore, the Ninth Circuit did not object to requiring grant recipients to certify that they “will implement programs that do receive [federal] assistance in a non-discriminatory manner,” but the circuit court upheld the preliminary injunction to the extent that it prohibited DOT from requiring grant recipients to certify anti-discrimination compliance in local programs with no federal funding.[4]

The FCA Certification

The Ninth Circuit fully upheld the preliminary injunction to the extent it prohibited DOT from requiring grant recipients to sign the FCA Certification.

The FCA allows the federal government to recover treble damages from those who make fraudulent claims, including fraudulent claims for grant payments, against the government. A party claiming payment from the federal government may be liable under the FCA if, among other things, it falsely certifies that it has complied with a material statutory or regulatory condition of payment.

The question for the Ninth Circuit was whether DOT, through the FCA Certification, could require a grant recipient to agree that any violation of applicable federal anti-discrimination laws would be material under the FCA, exposing the recipient to liability.

The Ninth Circuit held that DOT could not require grant recipients to do so. It noted that, in FCA lawsuits, “materiality is a central and often hotly contested issue,” and that “[r]equiring grant recipients to agree in advance and in the abstract that a statutory violation is material would sidestep this requirement.”[5] The court also held that the FCA Certification improperly attempted to redefine “material” under the FCA. Thus, the Ninth Circuit fully upheld the preliminary injunction with respect to barring DOT from requiring grant recipients to sign the FCA Certification.

Dissent asserts that the DEI and FCA certifications are lawful

The Ninth Circuit panel was not unanimous. While two judges, M. Margaret McKeown and Richard A. Paez, formed the majority, Judge Patrick J. Bumatay mostly dissented.

Like the majority, Judge Bumatay agreed that DOT could only require grant recipients to certify compliance with anti-discrimination laws with respect to federally funded programs. However, he held that nothing prohibited DOT from also requiring the FCA Certification; he argued that, through the FCA and DEI certifications, a grant recipient “merely acknowledges that following the [anti-discrimination] law is important.”[6]

Judge Bumatay also denied that the FCA Certification would preclude a grant recipient from disputing at trial whether an allegedly false claim was material. He considered it “premature” to enjoin the FCA Certification without understanding how the government would ultimately enforce it.[7]

Implications for DOT grant recipients

Because the preliminary injunction only applies to the lawsuit’s named plaintiffs, it does not enjoin DOT or other federal agencies from requiring other grant recipients to sign the DEI or FCA certifications. However, the Ninth Circuit’s decision is binding precedent within the circuit. As such, district courts within the Ninth Circuit’s jurisdiction are generally expected to follow the decision when considering requests to enjoin those certifications.

The preliminary injunction remains in effect only as long as the case remains pending. The Trump Administration may yet appeal the preliminary injunction, or a hypothetical permanent injunction, to the Supreme Court, which could reverse the decision. The Administration has 90 days to petition for certiorari.[8] However, unless the Supreme Court reverses, the Ninth Circuit’s decision provides precedent for grant recipients seeking to challenge the DEI or FCA certifications themselves.

DLA Piper’s Transport and Logistics practice advises transportation clients on the government’s grant policies and the evolving judicial response. For assistance with any related matter, please contact the authors.

 

_{[1] The plaintiffs also challenged grant certifications required by several other federal agencies, including the US Department of Housing and Urban Development and DOT’s Federal Transit Administration. The district court preliminarily enjoined those certifications as well, but this note does not address them in detail.}

_{[2] County of King v. Turner, No. 25-3664 (9th Cir. Aug. 25, 2026), slip op. at 15 (cleaned up) (the Slip Opinion).}

_{[3] Slip Opinion at 17 (emphasis added).}

_{[4] Slip Opinion at 19.}

_{[5] Slip Opinion at 20.}

_{[6] Slip Opinion at 44 (Bumatay, J., dissenting).}

_{[7] Slip Opinion at 44–45.}

_{[8] 28 U.S.C. § 2101(c).}