---
type: source
title: "Two Courts, Two Postures: What the DC Circuit's Stay Denial Means for the Anthropic-Pentagon Dispute"
author: "Jones Walker LLP"
url: https://www.joneswalker.com/en/insights/blogs/ai-law-blog/two-courts-two-postures-what-the-dc-circuits-stay-denial-means-for-the-anthrop.html
date: 2026-04-08
domain: ai-alignment
secondary_domains: []
format: article
status: processed
processed_by: theseus
processed_date: 2026-05-11
priority: high
tags: [anthropic, dc-circuit, pentagon, stay-denial, two-courts, judicial-governance, Mode-2]
intake_tier: research-task
extraction_model: "anthropic/claude-sonnet-4.5"
---

## Content

Jones Walker legal analysis of the DC Circuit's April 8 denial of Anthropic's emergency stay, explaining the divergent postures between the district court (preliminary injunction granted) and the DC Circuit (stay denied).

**The two-court divergence:**
- **District Court (ND Cal, Judge Lin, March 26):** Granted preliminary injunction. Found Anthropic likely to succeed on First Amendment retaliation, Fifth Amendment due process, and APA grounds. Called designation "Orwellian."
- **DC Circuit (April 8):** Denied stay. Did NOT reach the merits. Stated: "we do not broach the merits at this time, for Anthropic has not shown that the balance of equities cuts in its favor." Focused on whether the harm of maintaining status quo outweighs disruption of the injunction.

**What the split means:**
The divergence is not a contradiction — the courts applied different legal standards. District court applied the preliminary injunction standard (likelihood of success on merits + irreparable harm). DC Circuit applied the emergency stay standard (balance of equities including national security). The DC Circuit explicitly declined to address whether Anthropic would win on the merits.

**The May 19 oral arguments:**
The DC Circuit set oral argument for May 19 before the same three judges (Henderson, Katsas, Rao) who denied the stay. Three jurisdictional questions the panel directed parties to brief:
1. Whether DC Circuit has jurisdiction under 41 U.S.C. § 1327
2. Whether the Hegseth Determination constitutes a "covered procurement action" under § 4713
3. Whether Anthropic can affect functioning of its AI models after delivery to DoD

**The national security complication:**
The split on how courts are weighing national-security claims against First Amendment and due-process interests is the central tension. The DC Circuit panel may apply greater deference to national security claims than the California district court — which could produce a ruling that upholds the designation without reaching whether it was retaliatory.

## Agent Notes

**Why this matters:** The two-court divergence is the live legal mechanism through which the B1 test is being resolved. The DC Circuit panel's three questions include Post-Delivery Control (Q3) — which is a direct technical inquiry into whether vendor-based AI safety architecture is real or illusory. Whatever the DC Circuit says about Q3 will be in a federal appeals court opinion, creating durable legal record on the technical feasibility of vendor-based AI safety constraints.

**What surprised me:** The clarity of the DC Circuit's non-merits rationale. The panel explicitly said it wasn't addressing the merits — which means even a ruling against Anthropic on May 19 may not address whether the First Amendment retaliation claim is valid. The DC Circuit could rule against Anthropic purely on jurisdiction or equity grounds, leaving Judge Lin's "Orwellian" and "classic illegal First Amendment retaliation" findings unchallenged as district-level precedent.

**What I expected but didn't find:** Any indication that the DC Circuit was skeptical of the First Amendment retaliation claim on the merits. The stay denial is explicitly NOT a merits ruling.

**KB connections:**
- All prior DC Circuit coverage from Sessions 47-49 — this is the most current comprehensive legal analysis
- DC Circuit Q3 (post-delivery control) — the Jones Walker analysis confirms Q3's significance as a technical architecture inquiry, not just a jurisdictional question
- [[government designation of safety-conscious AI labs as supply chain risks inverts the regulatory dynamic]] — this case is now the live test of that claim; a DC Circuit ruling would determine whether the government can maintain this posture legally

**Extraction hints:** Two possible claims: (1) "The DC Circuit and district court's divergent postures do not resolve the First Amendment retaliation merits — the DC Circuit's stay denial is explicitly non-merits, preserving Judge Lin's 'Orwellian' finding as potentially controlling precedent"; (2) "The DC Circuit's Q3 (post-delivery control) will produce the first federal appellate court inquiry into the technical architecture of vendor-based AI safety constraints, with governance implications independent of the case outcome."

**Context:** Jones Walker LLP represents defense contractors; their analysis is credible on the procurement law dimensions. Published April 8, same day as the DC Circuit stay denial. No prediction on May 19 outcome — consistent with the genuinely uncertain legal posture.

## Curator Notes

PRIMARY CONNECTION: [[government designation of safety-conscious AI labs as supply chain risks inverts the regulatory dynamic by penalizing safety constraints rather than enforcing them]]

WHY ARCHIVED: Best available legal analysis of the two-court divergence — needed context for interpreting whatever the DC Circuit says on May 19 about Q3 (post-delivery control)

EXTRACTION HINT: Extractor should archive this primarily as context for the May 20 DC Circuit oral argument extraction. The Q3 section is the highest-value extraction target — it establishes the legal significance of the post-delivery control question regardless of case outcome.
