C. Plaintiffs Will Suffer Irreparable Harm Absent Preliminary Injunctive Relief
The Court’s order granting in part Plaintiffs’ motions for a TRO described evidence of the immense irreparable harm to businesses and organizations across the country, which has, at least to date, gone unrebutted by Defendants. AIDS Vaccine, 2025 WL 485324, at *2–4. As the Court explained, this included immense financial harm to Plaintiffs and, in many cases, forced them to significantly cut down on staff or otherwise reduce core operations. A few examples are illustrative:
• One plaintiff, a large investigative journalism organization, has USAID and State Department grants that constitute 38% of its budget, supporting investigations into corruption, sanction violations, and other wrongdoing. AIDS Vaccine, ECF No. 13-4 ¶¶ 2, 6–7, 9. Due to the suspension of appropriated funding and stop-work orders received as a result, the organization has been forced to cut 43 of 199 staff members, with most remaining being moved to a shorter work week. Id. ¶ 12. The organization has had to cancel events, cut travel for reporting, and freeze new equipment purchases. Id. The organization attests that the disruption will continue absent relief. Id. ¶ 13.
• A nonprofit plaintiff focused on protecting refugees and asylum seekers has had to lay off 535 staff members since receiving termination and suspension notices for multiple grants. Glob. Health, ECF No. 7-3 ¶¶ 3–4, 13. It has been forced to shutter program offices and defer payments to vendors. Id. ¶ 21.
• A plaintiff representing small businesses across all sectors attests that the suspension included USAID failing to pay its members for months of unpaid invoices. Glob. Health, ECF No. 7-2 ¶ 8. This has forced small businesses to furlough “most U.S. national staff in home offices and on contracts, and terminate foreign national staff or risk keeping them and being uncertain of payments under stop work orders.” Id. ¶ 10.
• Another plaintiff focused on addressing the global HIV/AIDS epidemic has already been forced to lay off seven employees and will lay off ten more over the next month if the suspension of appropriated foreign aid continues. AIDS Vaccine, ECF No. 13-2 ¶ 12.
In addition, several plaintiffs had attested to how the blanket suspension of funds undermined their core missions and jeopardized vital services to vulnerable populations. For example:
• One plaintiff asserts that the suspension of appropriated foreign aid has disrupted critical health programs, including maternal and child health programs and infectious disease prevention efforts administered by its member organizations. Glob. Health, ECF No. 7-1 ¶ 8. One of those member organizations reports that a $20 million project to support the development of hospital accreditation in Cambodia has been suspended. Id. ¶ 8(a). Another reports that a stop-work order has disrupted a total of $4 million in funding for American Schools and Hospitals Abroad grants in Nepal and Vietnam. Id. ¶ 8(c). And another reports that the freeze has delayed several time-sensitive antimalaria campaigns that are expected to benefit millions of people in Kenya, Uganda, Ghana, Ethiopia, and Zimbabwe. Id. ¶ 8(d). The plaintiff attests that the suspension of appropriated foreign aid funding “is an existential threat to [its] members and their life-saving work.” Id. ¶ 11.
• Another plaintiff reports that it can no longer fund shelters for minors in Central America trying to escape recruitment into criminal gangs. Glob. Health, ECF No. 7-7 ¶ 10.
• A different plaintiff explains that it has abruptly stopped providing medical services for hundreds of adolescents and young students in need in Bangladesh. Glob. Health, ECF No. 7-8 ¶ 12(a).
• An additional plaintiff that supports HIV prevention research and the rollout of HIV prevention medication to high-risk communities in various African countries asserts that the funding freeze has disrupted clinical trials and the rollout of life-saving medication. AIDS Vaccine, ECF No. 13-2 ¶¶ 3–4, 11.
Based on this evidence, the Court concluded that Plaintiffs had made a sufficient preliminary showing that Defendants’ actions “threaten[ed] the very existence of [their] business.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). And they had likewise shown that the “obstacles” created by Defendants’ conduct “make it more difficult for the [plaintiffs] to accomplish their primary mission.” League of Women Voters of United States v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016).19
Over the weeks that have followed, Plaintiffs have continued to produce more evidence of irreparable harm. A supplemental declaration from one plaintiff, for example, explains that the funding freeze has impacted its ability to meet financial obligations, which has in turn placed staff at risk of harassment, intimidation, and potential physical harm. Glob. Health, ECF No. 46-2 ¶ 2. Personnel have also been stranded in high-risk environments due to insufficient repatriation funding. Id. ¶ 3. And the loss of funding has forced security cutbacks, jeopardizing sensitive equipment and program-related data. Id. ¶ 6. As of February 26, the same plaintiff had furloughed around two-thirds of its U.S.-based workforce because of the funding freeze. Glob. Health, ECF No. 46-1 ¶ 32. Another plaintiff reiterated that, unless it received the funds owed by USAID, it would be forced to make another round of furloughs within about two weeks, reducing a staff of more than 250 to as few as ten. Glob. Health, ECF No. 29-4 ¶ 7.
Several declarations from the Global Health Plaintiffs further illustrate the ongoing irreparable harm:
• One plaintiff attests that if USAID does not pay outstanding invoices forthwith, the plaintiff will be in serious legal jeopardy in both the United States and other countries. Glob. Health, ECF No. 36-1 ¶ 7. The plaintiff will be forced to default on numerous contracts, including for corporate insurance and legal services—all while it is facing threatened legal action from staff members because it does not have funds to pay employees. Id. ¶¶ 8–9. And the risks to the plaintiff “are worsening by the day,” as it faces an increased likelihood of not being able to repatriate staff members, pay local legal counsel, or meet obligations to local communities. Id. ¶¶ 12, 15–17.
• Another plaintiff explains that it has been forced to furlough an additional 124 staff members since the TRO was issued because it still has not received any payments. Glob. Health, ECF No. 36-2 ¶¶ 3, 5. Organizational staff and their families “are suffering ongoing financial hardship that worsens with each passing day of reduced or no compensation.” Id. ¶ 5. The plaintiff is in imminent danger of being forced to suspend thousands of staff members without pay, which could violate labor laws in countries where it operates. Id. ¶ 9.
• Still another declaration explains that without imminent payment, a small business focused on energy and infrastructure will be forced to close its doors due to insolvency and to walk away from active federal contracts. Glob. Health, ECF No. 36-3 ¶¶ 5–6.
• Likewise, another plaintiff planned to lay off “a substantial number of its workforce” due to the lack of funding and will have to shutter its doors in all but five to seven of its twenty-four country offices. Glob. Health, ECF No. 36-4 ¶¶ 4, 6.
Defendants do not rebut these existential threats to the survival and core missions of businesses and organizations around the country. They respond that there is no irreparable harm because there is an ongoing, individualized review process that “could prevent the harm from transpiring at all.” Glob. Health, ECF No. 34 at 39. And they insist that any damage to Plaintiffs and other enterprises is recoverable. Id. at 40–42. Defendants’ point is well taken in one respect—the Court has found that Plaintiffs are not likely to succeed on this record as it relates to terminations resulting from Defendants’ subsequent review process. And, as discussed below, the Court’s relief must be tailored in that respect.
But Defendants’ argument is unpersuasive as it relates to irreparable harm. Defendants have now stated that they have completed their review process and have represented that they will cancel the vast majority of congressionally appropriated foreign aid. While it is true that the relevant Executive action here has the effect of withholding substantial amounts of funds, the harm here goes to the very subsistence of the organizations, many of which are on the brink of shuttering entirely, and poses an existential threat to the viability of their humanitarian missions. In fact, Defendants have not hesitated to cite the threat of insolvency to Plaintiffs as a justification for not making payments. See Glob. Health, ECF No. 39-1 ¶ 25 (“[T]he plaintiffs have claimed that many grant recipients and contractual counterparties are insolvent or nearly so, raising the high likelihood that they will immediately spend any funds they receive—making it impossible for the Government to recover those funds as a practical matter.”). Defendants’ actions are, in effect, the massive disruption of a whole industry or sector, and Plaintiffs have made a strong showing that the harm is “both certain and great,” as well as “actual and not theoretical.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (citation omitted).
D. The Balance Of The Equities And The Public Interest Favor Plaintiffs
The final two factors, balancing the equities and the public interest, generally “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009); see Pursuing Am.’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016). Here, they also weigh in Plaintiffs’ favor.
As the D.C. Circuit has explained, “[t]here is generally no public interest in the perpetuation of unlawful agency action.” League of Women Voters, 838 F.3d at 12. “To the contrary, there is a substantial public interest in having governmental agencies abide by the federal laws that govern their existence and operations.” Id. (internal quotation marks and citation omitted). Additionally, the harms that Plaintiffs have suffered—and will continue to suffer absent preliminary injunctive relief—are stark. Plaintiffs have adduced ample evidence that the funding freeze has had dire humanitarian consequences and has devastated businesses and programs across the country. Defendants still have made no effort to rebut that showing.
Defendants respond that they are undertaking a thorough review of foreign aid programs to determine which ones “make sense for the American people,” and they assert that the public has an interest “in the Executive effectuating foreign affairs.” Glob. Health, ECF No. 34 at 44–45 (citation omitted). But the Executive’s ability to review foreign aid programs is not at issue here. The Court’s TRO order explicitly declined to “enjoin any aspect of the Government’s ability to conduct a comprehensive internal review of government programs.” AIDS Vaccine, 2025 WL 485324, at *6. Indeed, the Court has concluded above that Plaintiffs are not likely to succeed in challenging Defendants’ review process on this record. See supra section II.B.1.c. And while the public no doubt has an interest in the Executive carrying out his important role in foreign affairs, it also has an interest in ensuring those duties are carried out in accordance with law, including the APA, and with the role prescribed to Congress, also a democratically elected branch, under the Constitution. To the extent Defendants’ argument seeks more than that, it is merely a repackaging of their unbridled view of Executive foreign affairs power that has been repeatedly rejected by the Supreme Court. See supra section II.B.2. In terms of the equities and the public interest, the Executive is equal to, not above, Congress and its laws. However, the scale tips in favor of Plaintiffs on these factors in light of their additional, unrebutted showing of enormous harm.
[Marc Elias] So let me start with something that I don't understand. So you got Article I of the Constitution, which is the Congress, and lays out Congress's power; and you got Article II, which lays out the Executive Branch's power; and you got Article III that lays out the Judicial branch. And I think the Founders had in mind that the most powerful of these branches would actually be the first, would be Article I, right? It would be Congress. And that it would jealously guard its authority -- particularly its ability to spend money, and its ability to issue taxes -- that it would jealously guard this power from a rapacious Executive. That does not seem to be happening. So what do you make of this? Either put on your Constitutional law hat, or put on your member of Congress hat, but what do you make of this?
[Jamie Raskin] Well, in one sense, this is a decades-long process of erosion of Congressional lawmaking power. But this is a dramatic and sudden jump into the unknown, with the President basically defying Congress in Congressional statutes and Appropriations at every turn. But to go back to the beginning, Marc, look, we had a revolution against a king, against a monarch. The first three words of the Constitution are, "We the people." And then, after you get through our beautiful Preamble, it leads right into the creation of Article I: "All legislative power is vested in the Congress of the United States." The sovereign power of the People to create the Constitution flows right into the Congressional power of lawmaking. And you know, Article I lays out everything, from regulating Commerce domestically and internationally, to the power to declare war, budgets, taxes, you name it. And even in Article 1, Section 8, Clause 18, all other powers necessary and proper to the execution of the forgoing powers, right?
Then you get to Article II. My colleague, Jim Jordan's, been running around TV saying that Article II says, in the first sentence, "All Executive power is vested in the President." Yeah, that's true, but what is the executive power, right? When you get past commander-in-chief of the Army and Navy in times of actual conflict, or when the militia's been mobilized, what's the core job of the President? "To take care that the laws are faithfully executed." That's it. "To take care that the laws are faithfully executed." The Articles of Confederation didn't even have a President, right? And then they thought that that was too inefficient, and there was nobody to keep things going to, you know, move the bureaucracy when Congress wasn't in town. And then the President was created, but very clearly in a secondary position. As Madison put it in the Federalist Papers, "The legislative branch is the predominant branch of government."
So sometimes my colleagues will get up, even Democrats will say, "We're three co-equal branches of government." And I just want to say, first of all, "co-equal" is not even a word, okay? You know, that's like extremely unique, or something like that. Secondly, the claim that we have three equal branches is just ridiculous. I mean, when you get to Article II, you've got four short sections. One section is all about how you impeach a President for treason, bribery, and other high crimes and misdemeanors. If we're co-equal, or equal, or equivalent, or whatever, why do we have the power to impeach and try and convict a President, and he doesn't have the power to impeach and try and convict us? The framers were clearly a lot more afraid of a President purporting to be a King, or arrogating the powers of a dictator, than it was afraid of Congress; all of the people, coming from this great huge, vast, diverse country, from different points of views, and working together, and split between the House and the Senate with bicameralism. ...
It's like, you know, pouring your tea from the cup into the saucer so it can cool off a little bit, right? And the Senate is supposed to allow the passions and tempers of the House of Representatives to cool off a little bit. But in any event, Congress is the lawmaking branch. We also have the power of the purse. We've got the power to spend, right? And you know this Marc, an Appropriations Act is just another federal law. It's like a law against assaulting Federal officers. And they should show more respect for both the law against assaulting Federal officers, and for an Appropriations Act. An Appropriations Act is not a budgetary recommendation, or a point of negotiation, or a bargaining chip with the President. It's a law you follow. The law "To take care that the laws are faithfully executed." So do your job, yeah?
-- What Every American Can Do To Fight DOGE, by Marc Elias and Jamie Raskin, Democracy Docket, Mar 13, 2025
E. Scope Of Relief
“Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 579 (2017). The court “need not grant the total relief sought by the applicant but may mold its decree to meet the exigencies of the particular case.” Id. at 580 (citation omitted). As it did at the preliminary injunction hearing, the Court emphasizes that the scope of the injunctive relief should be tailored to the particular claims that are likely to succeed and the particular showings made as to the other factors.
As described above, the Court finds that Plaintiffs are likely to succeed on their APA claims challenging the agency directives that implemented the blanket suspension of congressionally appropriated aid, but they are not likely to succeed as to the review and large-scale terminations that occurred in the process that took place after February 13, 2025. The Court accordingly finds it proper to preliminarily enjoin the parts of those directives, and the actions taken pursuant to them, to implement the freeze between January 20, 2025, and February 13, 2025. However, the Court denies Plaintiffs’ request to preliminarily enjoin or invalidate the subsequent review process or the mass terminations that resulted from it. [!]20 The Court also finds that Plaintiffs are likely to succeed on their constitutional claims that Defendants’ withholding of congressionally appropriated foreign aid funds violates the separation of powers. Again, however, the relief must be properly tailored.
The Court concludes that Plaintiffs’ proposed relief is overbroad in two additional respects as to their APA claims and one as to their constitutional claims. First, Plaintiffs propose relief that goes beyond the implementing directives they challenged in their APA claims, such as specifically enjoining Defendants from “terminating, furloughing, or placing personnel on administrative leave” and ordering them to “restore the status quo as it existed before January 20, 2025,” including by “restoring technical systems” and restoring prior processes to approve payments. Glob. Health, ECF No. 46-6 at 2–4. The Court finds that dictating operational decisions would go beyond the proper relief. While the Court has expressed concern about the length of time before Defendants took action to comply with the TRO, Defendants have since represented that they will adjust staffing levels as needed to comply with the Court’s order and have taken at least some steps to do so. Glob. Health, ECF No. 58 at 125–26.
Second, and relatedly, the Court cannot adopt Plaintiffs’ proposal that Defendants achieve “payment processing rates equivalent to those achieved before January 20, 2025.” Glob. Health, ECF No. 46-6 at 3. In denying Defendants’ application to vacate this Court’s order enforcing its TRO, the Supreme Court emphasized the need for “due regard for the feasibility of any compliance timelines.” AIDS Vaccine, 2025 WL 698083. While that direction was given in the context of the TRO, it applies equally to the preliminary injunction. This Court has since invited both written and oral submissions on the issue of feasibility. During its hearing concerning feasibility, the Court sought the parties’ views on creating a clear and feasible benchmark as it relates specifically to the remaining funds to be disbursed at the TRO phase. Given that the parties frequently articulated their respective arguments in terms of the number of payments processed, the Court proposed that metric and invited the parties’ submissions, including requesting data from the parties on what number of payments processed per day would be feasible (or range of payments processed, to the extent not all payments are created equal).
The parties agree that, as of the time of the appeal, there were roughly 2,000 outstanding payments to be processed by USAID, along with additional payments to be processed by State. Glob. Health, ECF No. 58 at 131–33. They also agree that both USAID and State could previously “process several thousand payments each day.” Glob. Health, ECF No. 39-1 ¶ 15. As a benchmark of the current state, Defendants have submitted that after the Supreme Court lifted its administrative stay, they were able to create the capacity to process about 100 payments over one night. Glob. Health, ECF No. 54 at 2. In light of these benchmarks, the Court found it feasible for Defendants to process roughly 1,200 payments to Plaintiffs over the course of a four-day period, or roughly 300 payments per day. See Glob. Health, ECF No. 53 at 1 (stating that Global Health Plaintiffs have around 1,200 outstanding invoices). Although the Court has invited submissions and discussions related to feasibility, there has not been any specific objection to this rate. The Court accordingly finds it appropriate and feasible to order Defendants to continue to process payments at a rate of approximately 300 per day. Although this is a small fraction of the rate at which payments were processed in a single day before January 20, 2025, it nonetheless allows for Defendants to come into compliance within a relatively short period, at a demonstrated level of current capability. The Court may revisit this benchmark if Defendants make a specific showing of legitimate feasibility concerns.
As to the separation of powers claims, Plaintiffs’ proposed relief is overbroad insofar as it would specifically order Defendants to continue to contract with them. As discussed, the violation here results from the Executive’s decision to unlawfully impound funds appropriated by Congress for specific foreign aid purposes. To be sure, Plaintiffs observe that they occupy a large share of the sector serving the relevant foreign aid purposes, as demonstrated by the severe harm they have faced as a result of the disruption to the sector, and accordingly it may well be that the only or most practical way for Defendants to carry out their duty to spend the funds is to revive existing partnerships, as Plaintiffs suggest. See Glob. Health, ECF No. 58 at 47–48. However, the separation of powers dictates only that the Executive follow Congress’s decision to spend funds, and both the Constitution and Congress’s laws have traditionally afforded the Executive discretion on how to spend within the constraints set by Congress. The appropriate remedy is accordingly to order Defendants to “make available for obligation the full amount of funds Congress appropriated” under the relevant laws. See City of New Haven v. United States, 634 F. Supp. 1449, 1460 (D.D.C. 1986), aff’d, 809 F.2d 900 (D.C. Cir. 1987); cf. Aiken County, 725 F.3d at 260 (granting mandamus relief and concluding that agency could not “decline to spend previously appropriated funds” toward specified purpose).21
III. Conclusion
For the reasons above, the Court grants in part and denies in part Plaintiffs’ motions for a preliminary injunction. Consistent with this opinion, it is hereby ORDERED:
• Defendants Marco Rubio, Peter Marocco, Russell Vought, the U.S. Department of State, the U.S. Agency for International Development, and the Office of Management and Budget (the “Restrained Defendants”) and their agents are enjoined from enforcing or giving effect to sections 1, 5, 7, 8, and 9 of the January 24 State Department memorandum, and any other directives that implement sections 3(a) and 3(c) of Executive Order No. 14169, by giving effect to any terminations, suspensions, or stop-work orders issued between January 20, 2025, and February 13, 2025, for any grants, cooperative agreements, or contracts for foreign assistance. Accordingly, the Restrained Defendants shall not withhold payments or letter of credit drawdowns for work completed prior to February 13, 2025.
• The Restrained Defendants are enjoined from unlawfully impounding congressionally appropriated foreign aid funds and shall make available for obligation the full amount of funds that Congress appropriated for foreign assistance programs in the Further Consolidated Appropriations Act of 2024.
It is further ORDERED that the Restrained Defendants shall take all steps necessary to effectuate this order and shall provide written notice of this order to all recipients of contracts, grants, and cooperative agreements for foreign assistance that were in existence between January 20, 2025, and February 13, 2025. The parties shall file a joint status report by March 14, 2025, that apprises the Court of Defendants’ compliance with this order and proposes a schedule for next steps in this matter. The Court is prepared to hold a prompt hearing at the request of the parties to address any feasibility concerns. The February 13 temporary restraining order issued by the Court is hereby dissolved.
SO ORDERED.
AMIR H. ALI
United States District Judge
Date: March 10, 2025
_______________
1 The parties filed notices of related cases that included National Council of Nonprofits v. Office of Management and Budget, No. 25-cv-00239-LLA (D.D.C.), and American Federation of Government Employees v. Trump, No. 25-cv-00352-CJN (D.D.C.). The judges assigned to those cases determined that the present cases were not sufficiently related, and the cases were submitted for random assignment. See AIDS Vaccine, ECF No. 12; Am. Fed’n, ECF No. 32.
2 Some courts have employed a “sliding scale” approach to the preliminary injunction factors, particularly before the Supreme Court’s decision in Winter. See Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, __ F. Supp. 3d __, No. 25-cv-239, 2025 WL 368852, at *9 (D.D.C. Feb. 3, 2025) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). The Court’s analysis here does not depend on the sliding scale method and arrives at the same place when each prong is evaluated as “an independent, free-standing requirement.” Sherley, 644 F.3d at 393 (citation omitted).
3 In seeking preliminary relief, a plaintiff generally need only show a substantial likelihood of standing. See, e.g., Elec. Priv. Info. Ctr. v. U.S. Dep’t of Com., 928 F.3d 95, 104 (D.C. Cir. 2019). Here, Plaintiffs’ standing is plain.
4 Defendants separately challenge whether two plaintiffs have established associational or organizational standing. Glob. Health, ECF No. 34 at 19–21. The Court “need only find one party with standing.” Ams. for Safe Access v. Drug Enf’t Admin., 706 F.3d 438, 443 (D.C. Cir. 2013). And, in any event, the associations have standing. Their members would likely have standing because they have been harmed by the challenged actions, see Glob. Health, ECF Nos. 7-1, 7-2; the interests that the associations seek to protect are “germane” to their organizational purposes, see Glob. Health, ECF Nos. 7-1 ¶ 3, 7-2 ¶ 2 (describing organizational purposes of “identifying priority world health problems and reporting on them to the U.S. public, legislators, international and domestic government agencies, academic institutions, and the world health community” and “promot[ing] the meaningful utilization of U.S. small businesses at U.S government agencies providing foreign assistance”); and, because the relief sought is “invalidation of agency action,” the claims do not require consideration of individual members’ circumstances. Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588, 596–97 (D.C. Cir. 2015) (citation omitted).
5 Defendants have also filed a sur-reply suggesting that the case is moot in light of their subsequent review and decisions to terminate Plaintiffs’ contracts and grants. Glob. Health, ECF No. 48-1 at 3–5. This argument is not persuasive. Plaintiffs ask the Court to vacate or set aside the agency action that led to the blanket suspension of funds. Granting such vacatur would have the effect of remedying, at least in part, the injuries that give Plaintiffs standing to sue in the first place. While this may not make Plaintiffs whole, it is not a circumstance where it is “impossible for the court to grant any effectual relief.” Id. at 3 (quoting Spirit of the Sage Council v. Norton, 411 F.3d 225, 228 (D.C. Cir. 2005)). As discussed below, however, Defendants’ subsequent review and decisions to terminate do constitute distinct agency action, which Plaintiffs have not challenged. See infra section II.B.1.c.
6 As Defendants acknowledged at the preliminary injunction hearing, this argument applies only to Plaintiffs’ APA claims and does not bear on their constitutional claims. Glob. Health, ECF No. 58 at 87.
7 As Plaintiffs point out, the record also suggests they have subawards and cooperative agreements that do not fall under the CDA or Tucker Act. See, e.g., Glob. Health, ECF Nos. 7-3 ¶ 8, 7-5 ¶¶ 4–5. Defendants seem to concede that not all of Plaintiffs’ awards are contracts subject to those statutes. See Glob. Health, ECF No. 34 at 14 (accepting that “some Plaintiffs may have award documents that are not procurement contracts” and only “some of the claims may proceed under the Tucker Act” (emphasis omitted)); see also U.S. Enrichment Corp. v. United States, 117 Fed. Cl. 548, 553 (2014) (recognizing that “[s]ubcontractors and other third parties are generally not permitted to raise claims directly against the government”); Am. Near E. Refugee Aid v. U.S. Agency for Int’l Dev., 703 F. Supp. 3d 126, 134 (D.D.C. 2023) (rejecting application of Tucker Act to USAID cooperative agreement). Thus, even assuming Plaintiffs have some agreements that qualify as contracts within the CDA or Tucker Act, they also have agreements that would lack those alternative avenues and fall within the APA. Cf. Ams. for Safe Access, 706 F.3d at 440 (denying jurisdictional challenge where court found that at least one named petitioner had standing).
8 In opposing a TRO, Defendants contended that because the President is not an “agency” within the meaning of the APA, an agency’s actions implementing presidential directives are also free from APA review. The Court rejected that argument, finding that Defendants did not ground their argument in the text of the APA, which specifically defines “agency” to include “each authority of the Government of the United States,” 5 U.S.C. § 551(1), and that Defendants failed to meaningfully define the bounds of their argument. AIDS Vaccine, 2025 WL 485324, at *5. To the extent Defendants renew that argument at the preliminary injunction stage, they do not develop it any further, and the Court rejects it for the same reasons stated in the TRO. Glob. Health, ECF No. 34 at 30–31; see also Chamber of Com. of U.S. v. Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996) (“[T]hat the Secretary’s regulations are based on the President’s Executive Order hardly seems to insulate them from judicial review under the APA, even if the validity of the Order were thereby drawn into question.”).
Defendants also argue in passing that their directives to suspend aid are not sufficiently circumscribed and discrete agency actions to be challenged under the APA, citing cases where plaintiffs sought “wholesale improvement” of an agency’s programs. Glob. Health, ECF No. 34 at 31–32 (citing Ala.-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 490 (5th Cir. 2014)). But the agency directives Plaintiffs challenge are precisely the sort of “agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy” that the APA explicitly includes and is routinely applied to. 5 U.S.C. § 551(4); cf. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 893–94 (1990) (noting that while challenges seeking “wholesale correction” of an entire program are not proper under the APA, judicial intervention, where appropriate, still “may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole ‘program’ to be revised by the agency in order to avoid the unlawful result that the court discerns”).
9 Defendants attempt to hollow out arbitrary and capricious review with various arguments. For example, they say that rather than ask whether Defendants considered reliance interests, the Court can merely infer from Defendants’ silence that they “exercised their discretion to determine that it would not be possible to consider the consequences of various approaches in the absence of a temporary pause.” Glob. Health, ECF No. 34 at 38. In the alternative, they argue that an agency need not articulate a rationale for its action “beyond simple compliance with the President’s directives.” Id. at 37–38. These arguments conflict with the APA’s mandate and, as already noted, would dramatically and impermissibly cabin judicial review under the APA. See supra n.8.
10 Examples of these notices in the record simply state that programs were suspended “[c]onsistent with the President’s Executive Order” or terminated because the award “no longer effectuates agency priorities and is terminated in accordance with the U.S. Department of State Standard Terms and Conditions and 2 CFR 200.340.” E.g., Glob. Health, ECF No. 7-4 at 2, 5.
11 To be sure, Plaintiffs may be able to formulate some new challenge to Defendants’ process leading to these later terminations, whether in an APA claim premised on the relevant action or a contractual challenge based on the terms of individual awards. The Court expresses no view as to the proper forum for such challenges or whether they might have merit; the point is that they are distinct from the challenge Plaintiffs currently advance.
12 Plaintiffs’ other APA claims, that Defendants acted contrary to law, must also be premised on “agency action,” 5 U.S.C. §§ 704, 706(2), and therefore do not afford any relief distinct from Plaintiffs’ arbitrary and capricious claims. The contrary-to-law claims are likely to succeed insofar as they concern Defendants’ initial directives and actions implementing the Executive Order, for the same reasons Plaintiffs’ separation of powers claims (addressed in the next section) are likely to succeed. The contrary-to-law claims are unlikely to succeed as to the review process and terminations after February 13, 2025, for the same reasons just articulated in this section.
13 When asked to identify anything in the record indicating “an intention to spend the amount that’s been sidelined by terminating the large majority of agreements,” Defendants’ counsel stated that he was “not familiar with somewhere in the record that there is.” Glob. Health, ECF No. 58 at 100–01. Although Defendants requested and were granted the opportunity to “send [the Court] a letter after the hearing,” they did not do so. Id. at 101.
14 Defendants also do not respond to Plaintiffs’ argument that they have violated the Anti-Deficiency Act, which prohibits officials from establishing a “reserve” except in specific circumstances (which Defendants do not claim are present here). See 31 U.S.C. § 1512(c)(1).
15 Plaintiffs observe that even before the Impoundment Control Act took effect, the Supreme Court recognized that the Executive was not free to override Congress’s spending power by making the unilateral decision to allot “less than the entire amounts authorized to be appropriated.” Train v. City of New York, 420 U.S. 35, 41 (1975).
16 In analyzing the President’s authority to impound in the context of domestic spending, some have noted the possibility that unique problems could arise in conflicts between spending mandates and a foreign policy question “confided by the Constitution to [the President’s] substantive direction and control.” Memorandum from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools, 1 Supp. Op. O.L.C. 303, 311 (Dec. 1, 1969); see John G. Roberts, Jr., Memorandum for Fred F. Fielding Re: Impoundment Authority at 2 (Aug. 15, 1985) (“Roberts Memorandum”). But even in the context of foreign affairs, a problem arises only “if spending would conflict with a constitutional obligation vested in the President.” Roberts Memorandum at 2. Defendants have not articulated their argument with remotely sufficient shape to give rise to such a problem—they do not ground the authority to impound here in any particular “constitutional obligation vested in the President”; they do not articulate any bounds to the authority; and they have not raised any challenge to the constitutionality of the governing statutes, as applied or otherwise, including the appropriations act and Impoundment Control Act.
17 Defendants offer some arguments in passing that there is no avenue to relief even if they are in violation of valid statutes expressing Congress’s spending power. First, they say this makes Plaintiffs’ claims “purely statutory” and therefore not cognizable as constitutional claims, citing Dalton v. Specter, 511 U.S. 462 (1994). Glob. Health, ECF No. 34 at 23. But Dalton “merely stands for the proposition that when a statute entrusts a discrete specific decision to the President and contains no limitations on the President’s exercise of that authority, judicial review of an abuse of discretion claim is not available.” Chamber of Com., 74 F.3d at 1331. Here, by contrast, Plaintiffs assert that the Executive has attempted to usurp Congress’s power over the purse in violation of the separation of powers, and there is no asserted or plausible argument that the President is simply exercising discretionary authority conferred by statute. Nor do Defendants explain how this argument can be squared with then-Judge Kavanaugh’s decision issuing mandamus relief in Aiken County. See 725 F.3d at 267.
Defendants also claim that violation of the Impoundment Control Act cannot be a basis for finding action contrary to law under the APA because the Impoundment Control Act allows for enforcement by the Comptroller General. Glob. Health, ECF No. 34 at 35. This argument is limited to Plaintiffs’ contrary-to-law APA claims, see supra n.12, and lacks merit. The APA, by its terms, applies unless another statute “preclude[s] judicial review.” 5 U.S.C. § 701(a)(1). And as the D.C. Circuit has observed, any such preclusion must have “sufficient clarity to overcome the strong presumption in favor of judicial review.” Confederated Tribes of Chehalis Rsrv. v. Mnuchin, 976 F.3d 15, 21 (D.C. Cir. 2020) (quoting Thryv, Inc. v. Click-To-Call Techs., LP, 590 U.S. 45, 53 (2020)), rev’d on other grounds sub nom. Yellen v. Confederated Tribes of Chehalis Rsrv., 594 U.S. 338 (2021).
Finally, Defendants argue that the AIDS Vaccine Plaintiffs’ separate claim under the Take Care Clause cannot be a basis for affirmative relief. Glob. Health, ECF No. 34 at 26. However, the Court need not reach that claim or argument since it concludes that Plaintiffs are likely to succeed on their separation of powers claims.
18 The Court notes that, for similar reasons, Plaintiffs would be likely to succeed on their claim that Defendants acted ultra vires. Glob. Health, ECF No. 1 ¶¶ 129–31. “When an executive acts ultra vires”—meaning beyond the scope of his power—“courts are normally available to reestablish the limits on his authority.” Chamber of Com., 74 F.3d at 1328 (quoting Dart v. United States, 848 F.2d 217, 224 (D.C. Cir. 1988)). Defendants do not identify any authority, statutory or otherwise, that would authorize this sort of vast cancelation of congressionally appropriated aid. Even if they did, Defendants do not dispute that they would be in the territory of having to show “clear congressional authorization” based on the “vast economic and political significance” of these actions. See West Virginia v. Env’t Prot. Agency, 597 U.S. 697, 716, 723 (2022) (citations omitted). Needless to say, canceling billions of dollars in congressionally appropriated funds is “no everyday exercise of federal power.” Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 595 U.S. 109, 117 (2022) (internal quotation marks and citation omitted).
19 The Court also noted that Plaintiffs’ evidence showed severe harm to their “goodwill, reputation, and relationships with employees, partners, subcontractors, foreign governments, and other stakeholders.” AIDS Vaccine, 2025 WL 485324, at *3 n.2 (quoting Glob. Health, ECF No. 4 at 23). This included concrete examples such as having to violate contractual duties by deferring payments to suppliers, vendors, and landlords, Glob. Health, ECF No. 7-6 ¶¶ 10, 15; disruptions to relationships with longstanding partners whose trust had been cultivated over decades, id.; and having to go back on previous assurances made to clients and partners in reliance on the agreements that have now been canceled, Glob. Health, ECF No. 7-9 ¶ 21. See Armour & Co. v. Freeman, 304 F.2d 404, 406 (D.C. Cir. 1962) (holding that irreparable harm was apparent where defendant’s conduct “could not fail to damage [plaintiff’s] good name”); Atlas Air, Inc. v. Int’l Bhd. of Teamsters, 280 F. Supp. 3d 59, 103 (D.D.C. 2017) (“Injury to reputation can, at least at times, rise to the level necessary to support the issuance of an injunction.”); Xiaomi Corp. v. Dep’t of Def., No. 21-cv-280, 2021 WL 950144, at *9 (D.D.C. Mar. 12, 2021) (collecting cases).
20 The Court notes that Defendants have preserved the government’s frequent argument that relief under the APA should apply only to the particular plaintiffs before the Court. As the Court observed at the preliminary injunction hearing, this argument has not been endorsed by the Supreme Court. Cf. Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 831 (2024) (Kavanaugh, J., concurring) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989))).
21 Defendants request that the Court stay any order issuing a preliminary injunction for a short time while they decide whether to appeal. Glob. Health, ECF No. 34 at 45. That request is denied as premature. If, after reviewing this opinion and order, Defendants decide to pursue an appeal, they may move for a stay pending appeal and the Court will consider it in the ordinary course.
