Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Gates

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Part 1 of 2

United States District Court
Northern District of California

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al.,

Plaintiffs,

v.

UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, et al.,

Defendants.

No. C 25-01780 WHA

Highlights:

On February 13 OPM communicated with the heads of several federal agencies in a private conference call. Neither the participants nor the contents of that call are directly in the record.

The next day, OPM sent an email to federal agencies’ chief human capital officers (and their deputies) stating:

Over the past several days, agencies have worked to review, clean up, and finalize their lists of probationary employees they wish to keep, and wish to terminate, and begin taking action.
We have asked that you separate probationary employees that you have not identified as mission-critical no later than end of the day Monday, 2/17. We have attached a template letter. The separation date should be as soon as possible that is consistent with applicable agency policies (including those in CBAs)….

The large-scale termination of probationary employees from myriad federal agencies followed. Plaintiffs contend that those employees were terminated at the direction of OPM….

In response to inquiries by the terminated employees, NSF’s chief management officer, Micah Cheatham, stated that “[w]e were directed last Friday [February 14] by OPM to terminate all probationers except for a minimal number of mission critical probationers” (id. at 18). Asked if NSF had attempted to negotiate with the administration to minimize the number of terminations, Cheatham responded: “There’s no negotiation” ….

We were told by OPM it was the agency’s discretion whether to remove probations or not. We chose to retain them all” (id. at 17). But “late Friday night,” “[t]hey told us that they directed us to remove probationers” (ibid.). “[T]here was no limited discretion. This is not a decision the agency made. This is a direction we received.”

Plaintiffs further allege that OPM ordered agencies to use template notices — supplied by OPM — to implement the ordered terminations, and that those templates falsely premised the en masse terminations on individual performance….Each stated that the recipient was fired because “[t]he Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest”…

On February 14, a probationer terminated by the Foreign Agricultural Service asked USDA’s deputy chief human capital officer by email about the “specific details of my performance that were evaluated and found to be insufficient” (Blake Suppl. Decl., Exh. A at 1). The response: “[A]gencies were directed to begin providing termination notices . . . and directed [sic] the use of a specific template and language for the notice beginning immediately upon OPM notification”….

And our actions are being watched by OPM. So that’s, again, something else that’s unprecedented. . . . Everything we do is scrutinized. Everything is being looked at twice. Any changes that are made in our system that show any type of action that has been deemed impermissible, we have to respond to why it happened….

As many as 200,000 probationary federal employees are at risk of termination (Br. at 19). Those already terminated rank somewhere in the tens of thousands (ibid.). OPM and the federal agencies involved have not disclosed the number or identity of those terminated (even to their unions).

The ongoing, en masse termination of probationary employees across the federal government’s agencies has sown significant chaos. By way of example, Major General (Ret.) Paul Eaton states that the termination of over 1,000 employees across the VA has crippled the agency’s administration of the Veterans Crisis Line…When functioning as intended, the VCL offers our veterans, who suffer from high rates of post-traumatic stress disorder and suicide, 24/7 mental health care in moments of crisis (ibid). Don Neubacher, formerly the Superintendent at Yosemite National Park, states that the ongoing firing of National Park System probationers will inflict immediate, foreseeable harm onto our national parks and the habitats and animals therein (Neubacher Decl.)….

Plaintiffs in this action fall into two groups. First, the union plaintiffs: American Federation of Government Employees, AFL-CIO (AFGE); American Federation of Government Employees Local 1216; American Federation of Government Employees Local 2110; American Federation of State County and Municipal Employees, AFL-CIO; and United Nurses Associations of California/Union of Health Care Professionals, AFSCME, AFL-CIO. Second, the organizational plaintiffs: Main Street Alliance, Coalition to Protect America’s National Parks, Western Watersheds Project, Vote Vets Action Fund Inc., and Common Defense Civic Engagement….

Plaintiffs’ motion for a TRO seeks an order enjoining defendants from taking any actions to effectuate OPM’s probationary employee termination directive….

Plaintiffs are likely to succeed on their ultra vires claim. No statute — anywhere, ever — has granted OPM the authority to direct the termination of employees in other agencies. “Administrative agencies [like OPM] are creatures of statute. They accordingly possess only the authority that Congress has provided.”… Congress’s statutory scheme grants to each agency head the authority to manage their own affairs, including the hiring and firing of employees….

The same is true of OPM. Congress has vested its director with the authority to “secur[e] accuracy, uniformity, and justice in the functions of the Office,” “appoint[] individuals to be employed by the Office, and “direct[] and supervis[e] employees of the Office.”… But that’s it. OPM did not have the authority to direct the firing of employees, probationary or otherwise, in any other federal agency.

OPM concedes that it lacks the authority to direct firings outside of its own walls and argues, instead, that it “did not direct agencies to terminate any particular probationary employees based on performance or misconduct, and did not create a ‘mass termination program’” — it merely “asked agencies to engage in a focused review of probationers based on how their performance was advancing the agencies’ mission, and allowed them at all times to exclude whomever they wanted”…

Plaintiffs, meanwhile, have mustered a mountain of evidence that points in the other direction, from a broad range of federal agencies: “In accordance with direction from OPM . . . all DOD Components must terminate the employment of all individuals who are currently serving a probationary or trial period” (DOD), “[t]here was direction from the Office of Personnel Management” (VA), “agencies were directed to begin providing termination notices . . . immediately upon OPM notification” (USDA), “that was something that was directed from OPM” (IRS), “[w]e were directed last Friday by OPM” (NSF), “[t]hey told us that they directed us to remove probationers” (NSF) (emphases added). A full accounting is above. The weight of the evidence supports plaintiffs’ contention that OPM exceeded the bounds of its authority by unlawfully directing the mass termination of probationary employees across a wide range of federal agencies….

[T]he evidence supports the contention that OPM’s direction to other agencies fell outside its limited statutory authority….

OPM’s direction to the other agencies constituted a final agency action for the purposes of the APA. Plaintiffs have marshalled significant evidence from numerous agencies stating that they were acting at the direction of OPM….

Plaintiffs are also likely to show that the OPM directive was an arbitrary and capricious action….The key fact here is that the template letters sent from OPM to the directed agencies stated: “[T]he Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest”… First, it is unlikely, if not impossible, that the agencies themselves had the time to conduct actual performance reviews of the thousands terminated in such a short span of time…“Reliance on facts that an agency knows are false at the time it relies on them is the essence of arbitrary and capricious decisionmaking.”….

Rules are subject to the notice and comment process prior to enactment…OPM’s January 20 memo and February 14 email are likely to constitute a “rule” under the APA…It is beyond cavil that they did not go through notice and comment rulemaking….

First, it is likely that the undersigned lacks jurisdiction to hear the union plaintiffs’ claims for the reasons stated in recent denials of similar claims made by unions representing federal employees….

[T]he Federal Labor Relations Authority (“FLRA”), a three-member agency charged with adjudicating federal labor disputes, reviews matters including negotiability and unfair labor practice disputes. When reviewing unfair labor practice complaints, the FLRA resolves whether an agency must bargain over a subject, violated the duty to bargain in good faith, or otherwise failed to comply with the Statute.

Direct review of the FLRA’s decisions is available in the courts of appeals….

If an agency takes a final adverse action against an employee — removal, suspension for more than 14 days, reduction in grade or pay, or furlough for 30 days or less — the employee may appeal to the Merit Systems Protection Board (“MSPB”). The MSPB may order relief to prevailing employees, including reinstatement, backpay, and attorney’s fees. Probationary employees, however, generally do not enjoy a right to appeal to the MSPB. Employees may appeal final MSPB decisions to the Federal Circuit, which has exclusive jurisdiction over such appeals. This statutory review scheme, too, is exclusive, even for employees who bring constitutional challenges to federal statutes….

The union plaintiffs and their members must adjudicate their claims through the FLRA and MSPB. The union plaintiffs’ claims “are the vehicle by which they seek to reverse the removal decisions, to return [members] to federal employment, and to [collect] the compensation they would have earned but for the adverse employment action.”… That the FLRA or MSPB may lack the authority to adjudicate the union plaintiffs’ constitutional and APA claims does not constitute a foreclosure on all meaningful judicial review: Those issues can be “‘meaningfully addressed in the Court of Appeals’ that Congress [has] authorized to conduct judicial review.”…

But a claim brought by Western Watersheds Project (WWP), for example, against OPM, alleging that the latter issued an unlawful, arbitrary and capricious rule that undermined the BLM’s ability to respond to WWP’s FOIA requests, does not feature a federal employee, their union representative, or their federal employer (in this example BLM). The plaintiff’s injury — frustration of its ecological mission — is equally ill-suited to adjudication by a labor board. True, the termination of a federal employee remains embedded within the dispute: WWP’s injury, it argues, occurred because OPM demanded, unlawfully, that the probationary employees at BLM be terminated. That, standing alone, is not enough to bring a claim within the scope of the statutory schemes created for the resolution of bargaining disputes and employee claims. Asked to provide a single example of a claim brought by a third party, against a third party, that had been administratively channeled via Thunder Basin, OPM could not. Such a rule would stretch that doctrine too far.

In sum, it is unlikely that this Court has jurisdiction over the union plaintiffs, but it likely does have jurisdiction to hear the claims of the organizational plaintiffs. This order moves to consider whether the latter group has standing….

“Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.”…

The National Park Service has terminated close to 1,000 newly hired employees…

Based on my experience as a park Superintendent, the termination of so many NPS employees at once will have an immediate adverse impact on the parks and park visitors. For example, at Yosemite, the park will likely have to stop specific functions and close park areas. There is no way to accommodate current visitation levels without additional staff support during the upcoming peak season. When there was a partial government shutdown in 2018, visitors trashed scenic viewpoints, defecated outside locked restrooms and trampled sensitive ecological areas with their vehicles and dogs. The park receives annual visitation of over 4 million people….

Some of the likely, imminent harms laid out above have already come to pass. A member of the Coalition reported this week that they and their party were forced to abandon a trip to Joshua Tree National Park because the Black Rock Nature Center, which ordinarily provides shelter and commodes to the public, remained unstaffed and closed well after its scheduled opening time …

The Coalition has standing. Its members’ continued use and enjoyment of our national parks will likely be, and in at least one case already has been, injured by the terminations that have taken place at the National Parks Service.

Main Street Alliance likewise has representational standing. …A February 20 letter from the Ranking Member of the Senate Committee on Small Business and Entrepreneurship to the Administrator of the SBA cited reporting that hundreds of probationary SBA employees had been terminated across the country and stated that “through our own investigation and public reporting, we have learned that the fired employees included those supporting disaster assistance and oversight of loan programs”…. Some members who already have entered into contracts with the expectation of obtaining timely loan guarantees “are likely to be on the hook for expenses owed to contractors and suppliers without the ability to pay amounts owed”….

The Western Watersheds Project (the Project)….The Project has standing to challenge OPM’s directive to fire probationary employees at BLM and the U.S. Fish and Wildlife Service. Erik Molvar, a wildlife biologist formerly employed by the U.S. Forest Service and Army Corps of Engineers, and now the Project’s Executive Director, states that it “is a non-profit environmental conservation group that works to influence and improve public lands management”…

First, the Project has shown actual harm, namely that its ecological mission has been perceptibly impaired by the termination of employees at the BLM:…

Plaintiff VoteVets has standing. VoteVets is a “non-partisan, non-profit organization” that has “nearly 2 million supporters . . . with whom it regularly communicates about issues affecting veterans, including the operations, programs, and services available through the U.S. Department of Veterans Affairs”… The VA has “dismissed over 1,000 probationary employees,” “rais[ing] concerns about potential staffing shortages and the quality of care provided to veterans”… This shortage “has overwhelmed existing supervisors and affected the VCL’s ability to provide timely assistance to veterans in crisis.”…

Plaintiff Common Defense likewise has standing…

Responding to members questions, and working to determine what answers we can give to those members, diverts resources from Common Defense’s advocacy mission and core priorities, including working to expand ballot access at the state level, advancing initiatives to address climate change, and training and educating members….

OPM directed mass firings and plaintiffs each likely will be (or have been) injured as a result. Plaintiffs have each established a sufficient causal link between the mass termination of employees at the implicated agencies, and the imminent, foreseeable, and in some cases actual injuries that they face….

The partial closure and degradation of national parks constitutes likely, irreparable harm due to both environmental injury and loss of access…

Loss of access to essential government services also constitutes likely, and in some cases actual, irreparable harm. For example, the Veterans Crisis Line — an indispensable resource for our veterans in times of crisis — has been “overwhelmed” and its ability to provide care diminished for lack of staff… Its failure to meet the needs of our veterans presents the further likelihood of tragic results….

Finally, plaintiffs face irreparable harm because they have diverted significant or even all present resources to responding to the hardships created by the mass termination of probationary employees …

OPM’s assertion, meanwhile, that “[p]laintiffs have produced no credible evidence that terminations of federal employees have caused a disruption in critical government services” (ibid.) is refuted by the record, discussed at length in this memorandum’s consideration of standing….

“The preservation of the rights in the Constitution and the legality of the process by which government agencies function certainly weighs heavily in the public interest.”…

Based on the foregoing, the Court granted the following relief at the close of the February 27 argument: That OPM’s January 20 memo, February 14 email, and all other efforts to direct the termination of employees at NPS, BLM, VA, DOD, SBA, and NSF are illegal, invalid and must be stopped and rescinded. That OPM must communicate that decision to those agencies by the next day, February 27….

This memorandum amends the bench order to address two errors (the inclusion of the NSF, and the exclusion of FWS). The Court’s TRO is accordingly AMENDED to the following:

It is ORDERED that:

OPM’s January 20 memo, February 14 email, and all other efforts by OPM to direct the termination of employees at NPS, BLM, VA, DOD, SBA, and FWS are unlawful, invalid, and must be stopped and rescinded.

OPM shall provide written notice of this order to NPS [National Park Service], BLM [Bureau of Land Management], VA [Veteran's Affairs], DOD [Department of Defense], SBA [Small Business Administration], and FWS [Fish & Wildlife].

-- United States District Court, Northern District of California, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Plaintiffs, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, et al., Defendants. No. C 25-01780 WHA. MEMORANDUM OPINION AND ORDER AMENDING TRO. WILLIAM ALSUP

MEMORANDUM OPINION AND ORDER AMENDING TRO

STATEMENT

On January 20, 2025, Acting Director of the Office of Personnel Management Charles Ezell, defendant, issued a memo to department and agency heads directing them to identify all employees serving probationary periods by January 24, and to “promptly determine whether those employees should be retained at the agency.” Probationary employees are those who have served less than one year in the competitive service or less than two in the excepted service.

On February 13 OPM communicated with the heads of several federal agencies in a private conference call. Neither the participants nor the contents of that call are directly in the record.

The next day, OPM sent an email to federal agencies’ chief human capital officers (and their deputies) stating:

Over the past several days, agencies have worked to review, clean up, and finalize their lists of probationary employees they wish to keep, and wish to terminate, and begin taking action.

We have asked that you separate probationary employees that you have not identified as mission-critical no later than end of the day Monday, 2/17. We have attached a template letter. The separation date should be as soon as possible that is consistent with applicable agency policies (including those in CBAs).

(Dkt. No. 37-1).

The large-scale termination of probationary employees from myriad federal agencies followed. Plaintiffs contend that those employees were terminated at the direction of OPM.

Dr. Andrew Frassetto, for example, was hired as a program director at the National Science Foundation on September 9, 2024 (Frassetto Decl. ¶3). Dr. Frassetto and over 100 other NSF employees were terminated en masse during a Zoom meeting on February 18 (id. ¶ 10; Evans Decl. ¶28). A time-stamped transcript of that meeting, generated by an automated closed captioning system, is attached to Dr. Frassetto’s declaration (Exh. B). In response to inquiries by the terminated employees, NSF’s chief management officer, Micah Cheatham, stated that “[w]e were directed last Friday [February 14] by OPM to terminate all probationers except for a minimal number of mission critical probationers” (id. at 18). Asked if NSF had attempted to negotiate with the administration to minimize the number of terminations, Cheatham responded: “There’s no negotiation” (id. at 25).

In fact, when the NSF officials orchestrating the firings were confronted by the terminated probationers, they stated that “[ u]p until Friday [February 14]. Yes. We were told by OPM it was the agency’s discretion whether to remove probations or not. We chose to retain them all” (id. at 17). But “late Friday night,” “[t]hey told us that they directed us to remove probationers” (ibid.). “[T]here was no limited discretion. This is not a decision the agency made. This is a direction we received” (id. at 12) (emphasis added).

Plaintiffs further allege that OPM ordered agencies to use template notices — supplied by OPM — to implement the ordered terminations, and that those templates falsely premised the en masse terminations on individual performance. The Department of Agriculture, National Science Foundation, Federal Aviation Administration, Department of Veterans Affairs, and Department of Health and Human Services each issued substantially similar letters (Bachelder Decl., Exh. 1; Evans Decl., Exh. B; Ronneberg Decl., Exh. 1; Schwarz Decl., Exh. A). Each stated that the recipient was fired because “[t]he Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest” (ibid. (emphasis added)). The empty template provided to DOD by OPM likewise declares — despite empty “[NAME]” “[TITLE]” and “[ORGANIZATION]” fields — that “the Agency finds, based on your performance, that you have not demonstrated that your further employment at the agency would be in the public interest” (Schwarz Decl., Exh. D).

Dr. Frassetto is again illustrative. In a February 13 performance review — five days before he was terminated “based on [his] performance” — Dr. Frassetto’s supervisor reported:

[H]is role [is] mission critical. Dr. Frassetto has been an outstanding program director, and he has taken the lead role in overseeing this important and complicated portfolio for the division. Dr. Frassetto came to NSF with a unique skill set in interdisciplinary scientific research . . . . He has already demonstrated an outstanding ability to balance the various aspects of his job responsibilities and is highly effective at organizing and completing all his work in an accurate and timely manner.

. . .

Dr. Frassetto’s work on this portfolio has been outstanding and he has brought important experience to the role and has demonstrated highly competent project management and oversight. He is a program director who has needed minimal supervision and eagerly seeks special assignments at higher levels of difficulty. He has been an outstanding contributor to the division, directorate, and agency.

(Frassetto Decl., Exh. A).

The NSF officials who fired Dr. Frassetto (and over 100 of his peers) via Zoom on February 18 stated: “The cause comes from boilerplate we received from OPM. The cause says that the agency finds based on your performance that you have not demonstrated that your further employment at the agency would be in the public interest” (Frassetto Decl., Exh. B at 21).

On February 26, 2025, Civilian Personnel Policy Council members at the Department of Defense (DOD) stated by email: “In accordance with direction from OPM, beginning February 28, 2025, all DOD Components must terminate the employment of all individuals who are currently serving a probationary or trial period” (Schwarz Decl., Exh. C at 1).

Tracey Therit, chief human capital officer for the VA, testified under oath at a congressional hearing before the House Committee on Veterans Affairs on February 25:

RANKING MEMBER TAKANO: So nobody ordered you to carry out these terminations?

You did it on your own?

MS. THERIT: There was direction from the Office of Personnel Management.

(Walls Decl. (Reply), Exh. A at 8).

On February 14, a probationer terminated by the Foreign Agricultural Service asked USDA’s deputy chief human capital officer by email about the “specific details of my performance that were evaluated and found to be insufficient” (Blake Suppl. Decl., Exh. A at 1). The response: “[A]gencies were directed to begin providing termination notices . . . and directed [sic] the use of a specific template and language for the notice beginning immediately upon OPM notification” (id. at 2).

In a “town hall” for IRS employees on February 21, the IRS’s chief human capital officer (CHCO) stated:

I’m not sure why it’s happening . . . . Regarding the removal of the probationary employees, again, that was something that was directed from OPM. And even the letters that your colleagues received yesterday were letters that written by OPM, put forth through Treasury, and given to us . . . . I cannot explain to you why this has happened. I’ve never seen OPM direct people at any agency to terminate.

(Lezra Decl., Exh. A at 4–5).

The IRS had to “get permission” to make even minor alterations to the template OPM termination letter:

There was a modification because we created our own email box for employees to send questions to HR directly after they separate. We felt it was important to have an avenue of communication open for them if they had questions about their final paycheck, or benefits, or leave payouts. So we did get permission to add that email in there.

(id. at 4–5). The IRS CHCO continued:

And our actions are being watched by OPM. So that’s, again, something else that’s unprecedented. . . . Everything we do is scrutinized. Everything is being looked at twice. Any changes that are made in our system that show any type of action that has been deemed impermissible, we have to respond to why it happened.

(id. at 3–4).

A termination letter received by a probationer at the Bonneville Power Administration (within the Department of Energy) stated: “Per OPM instructions, DOE finds that your further employment would not be in the public interest. For this reason, you are being removed from your position with DOE and the federal civil service effective today” (Schwarz Decl., Exh. B at 10 (emphasis added)).

As many as 200,000 probationary federal employees are at risk of termination (Br. at 19). Those already terminated rank somewhere in the tens of thousands (ibid.). OPM and the federal agencies involved have not disclosed the number or identity of those terminated (even to their unions) (ibid.).

The ongoing, en masse termination of probationary employees across the federal government’s agencies has sown significant chaos. By way of example, Major General (Ret.) Paul Eaton states that the termination of over 1,000 employees across the VA has crippled the agency’s administration of the Veterans Crisis Line (Eaton Decl. ¶¶ 8–9). When functioning as intended, the VCL offers our veterans, who suffer from high rates of post-traumatic stress disorder and suicide, 24/7 mental health care in moments of crisis (ibid). Don Neubacher, formerly the Superintendent at Yosemite National Park, states that the ongoing firing of National Park System probationers will inflict immediate, foreseeable harm onto our national parks and the habitats and animals therein (Neubacher Decl.). The Western Watershed Project, meanwhile, has already had its ecological mission frustrated, as terminations at BLM have rendered that agency unable to respond to the Project’s FOIA requests (Molvar Decl. ¶ 7).

* * *

Plaintiffs in this action fall into two groups. First, the union plaintiffs: American Federation of Government Employees, AFL-CIO (AFGE); American Federation of Government Employees Local 1216; American Federation of Government Employees Local 2110; American Federation of State County and Municipal Employees, AFL-CIO; and United Nurses Associations of California/Union of Health Care Professionals, AFSCME, AFL-CIO. Second, the organizational plaintiffs: Main Street Alliance, Coalition to Protect America’s National Parks, Western Watersheds Project, Vote Vets Action Fund Inc., and Common Defense Civic Engagement.

Plaintiffs filed a complaint for declaratory and injunctive relief on February 19, 2025 (Dkt. No. 1). Four days later, on February 23, they filed an amended complaint and moved for a temporary restraining order (Dkt. Nos. 17, 18).

First, plaintiffs argue that OPM directed federal agencies to fire probationary employees, and that the action was an ultra vires act because it exceeded the scope of OPM’s statutory authority, intruded upon the statutory authority of the individual federal agencies and their heads, violated the Civil Service Reform Act’s (CSRA) provisions governing agency terminations based on performance and reductions in force (RIFs), and violated the General Authority to Employ enacted by Congress (Dkt. No. 17 at 25–26). Second, plaintiffs argue that the OPM directive to terminate probationary employees constituted a final agency action that violated the APA because it exceeded the agency’s statutory or constitutional authority, was otherwise unlawful, was arbitrary and capricious, and did not undergo the necessary notice and comment process (id. at 26–30).

Plaintiffs’ motion for a TRO seeks an order enjoining defendants from taking any actions to effectuate OPM’s probationary employee termination directive.

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Part 2 of 2

ANALYSIS

The standard for a temporary restraining order is the same as that for a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “A plaintiff seeking a preliminary injunction must establish that [1] he is likely to succeed on the merits, that [2] he is likely to suffer irreparable harm in the absence of preliminary relief, that [3] the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

1. LIKELIHOOD OF SUCCESS ON THE MERITS.

A. PLAINTIFFS’ ULTRA VIRES CLAIM.

Plaintiffs argue that OPM’s termination directive constituted an ultra vires act that violated, and — unless recalled — continues to violate the scope of its and all impacted agencies’ statutory authority as established by Congress.

“The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015). “Equitable actions to enjoin ultra vires official conduct do not depend upon the availability of a statutory cause of action; instead, they seek a ‘judge-made remedy’ for injuries stemming from unauthorized government conduct, and they rest on the historic availability of equitable review.” Sierra Club v. Trump, 963 F.3d 874, 890–91 (9th Cir. 2020) (citing Armstrong, 575 U.S. at 327), vacated and remanded on other grounds (mootness), 142 S. Ct. 46 (2021).

Plaintiffs are likely to succeed on their ultra vires claim. No statute — anywhere, ever — has granted OPM the authority to direct the termination of employees in other agencies. “Administrative agencies [like OPM] are creatures of statute. They accordingly possess only the authority that Congress has provided.” Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 595 U.S. 109, 117 (2022). Congress’s statutory scheme grants to each agency head the authority to manage their own affairs, including the hiring and firing of employees. 5 U.S.C. § 3101 (“Each Executive agency, military department, and the government of the District of Columbia may employ such number of employees of the various classes recognized by chapter 51 of this title as Congress may appropriate for from year to year.”); 5 U.S.C. § 301 (“The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees . . . .”); see also, e.g., 38 U.S.C. §§ 303, 510 (VA); 10 U.S.C. § 113 (DOD).

The same is true of OPM. Congress has vested its director with the authority to “secur[e] accuracy, uniformity, and justice in the functions of the Office,” “appoint[] individuals to be employed by the Office, and “direct[] and supervis[e] employees of the Office.” 5 U.S.C. § 1103(a)(1)–(3). But that’s it. OPM did not have the authority to direct the firing of employees, probationary or otherwise, in any other federal agency.

OPM concedes that it lacks the authority to direct firings outside of its own walls and argues, instead, that it “did not direct agencies to terminate any particular probationary employees based on performance or misconduct, and did not create a ‘mass termination program’” — it merely “asked agencies to engage in a focused review of probationers based on how their performance was advancing the agencies’ mission, and allowed them at all times to exclude whomever they wanted” (Ezell Decl. ¶ 7). OPM’s factual contention rests entirely on the Ezell Declaration.

Plaintiffs, meanwhile, have mustered a mountain of evidence that points in the other direction, from a broad range of federal agencies: “In accordance with direction from OPM . . . all DOD Components must terminate the employment of all individuals who are currently serving a probationary or trial period” (DOD), “[t]here was direction from the Office of Personnel Management” (VA), “agencies were directed to begin providing termination notices . . . immediately upon OPM notification” (USDA), “that was something that was directed from OPM” (IRS), “[w]e were directed last Friday by OPM” (NSF), “[t]hey told us that they directed us to remove probationers” (NSF) (emphases added). A full accounting is above. The weight of the evidence supports plaintiffs’ contention that OPM exceeded the bounds of its authority by unlawfully directing the mass termination of probationary employees across a wide range of federal agencies.

OPM’s Article II argument likewise rests on the factual contention that OPM’s actions constituted mere “guidance,” and is rejected on the facts (Opp. at 26). Article II, moreover, is irrelevant here. Congress’s statutory scheme created the agency, vested the agency with authority, and defined the bounds of that authority. It is an OPM action that is being challenged and, as explained above, the evidence supports the contention that OPM’s direction to other agencies fell outside its limited statutory authority.

B. PLAINTIFFS’ APA CLAIMS.

Plaintiffs have also shown that their APA claims are likely to succeed.

Under the APA, only “final agency action[s]” — those that “mark the consummation of the agency’s decisionmaking process” and determine “rights or obligations . . . from which legal consequences will flow” are subject to judicial review. Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (cleaned up) (citing 5 U.S.C. § 704). OPM’s direction to the other agencies constituted a final agency action for the purposes of the APA. Plaintiffs have marshalled significant evidence from numerous agencies stating that they were acting at the direction of OPM.

As explained above, OPM’s direction to other agencies was not supported by any statutory authority. Plaintiffs are therefore likely to show that OPM’s directive constituted an agency action that was “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right” that must be “[held] unlawful and set aside.” 5 U.S.C. § 706(2)(C).

Plaintiffs are also likely to show that the OPM directive was an arbitrary and capricious action. Id. § 706(2)(A). “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Ibid. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). The key fact here is that the template letters sent from OPM to the directed agencies stated: “[T]he Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest” (Schwarz Decl., Exh. D). First, it is unlikely, if not impossible, that the agencies themselves had the time to conduct actual performance reviews of the thousands terminated in such a short span of time (Archuleta Decl. ¶ 14). It is even less plausible that OPM alone managed to do so. In at least one instance, a terminated scientist had received a glowing review — “[h]e has been an outstanding contributor to the division, directorate, and agency” — five days before he was terminated “for [his] performance” (Frassetto Decl., Exh. A at 1; Exh. C at 1). “Reliance on facts that an agency knows are false at the time it relies on them is the essence of arbitrary and capricious decisionmaking.” Missouri Serv. Comm’n v. Fed. Energy Regul. Comm’n, 337 F.3d 1066, 1075 (D.C. Cir. 2003).

Lastly, plaintiffs are likely to show that OPM failed to comply with notice and comment rulemaking. “‘Rule’ means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency . . . .” 5 U.S.C. § 551(4). Rules are subject to the notice and comment process prior to enactment. 5 U.S.C. § 553. OPM’s January 20 memo and February 14 email are likely to constitute a “rule” under the APA (see, e.g., Dkt. No. 37-1 at 2) (“OPM believes ‘qualifications for continued employment’ in the current context means that only the highest-performing probationers in mission-critical areas should be retained.”). It is beyond cavil that they did not go through notice and comment rulemaking.

OPM’s counters on this point rely on the jurisdictional “channeling” of the organizational plaintiffs or the factual contention that OPM did not issue a directive and are rejected on those grounds.

C. SUBJECT-MATTER JURISDICTION.

First, it is likely that the undersigned lacks jurisdiction to hear the union plaintiffs’ claims for the reasons stated in recent denials of similar claims made by unions representing federal employees. See, e.g., Nat’l Treasury Emps. Union v. Trump, No. 25-CV-420 (CRC), 2025 WL 561080, at *5–8 (D.D.C. Feb. 20, 2025) (Judge Christopher Cooper) (denying TRO); Am. Foreign Serv. Ass’n, Inc. v. Donald Trump, No. 1:25-CV-352 (CJN), 2025 WL 573762, at *8–11 (D.D.C. Feb. 21, 2025) (Judge Carl Nichols) (dissolving TRO); Am. Fed’n of Gov’t Emps. v. Ezell, No. CV 25-10276-GAO, 2025 WL 470459, at *2 (D. Mass. Feb. 12, 2025) (Judge George O’Toole, Jr.) (dissolving TRO).

“Congress may preclude district court jurisdiction by establishing an alternative statutory scheme for administrative and judicial review.” Am. Fed’n of Gov't Emps. v. Trump, 929 F.3d 748, 755 (D.C. Cir. 2019). Congress set forth such statutory schemes by way of the Federal Service Labor-Management Relations Statute (FSLMRS) and the CSRA. The relevant statutory background has been summarized in National Treasury:

The Federal Service Labor-Management Relations Statute (“the Statute” or “FSLMRS”), set forth in Title VII of the Civil Service Reform Act (“CSRA”), governs labor relations between the executive branch and its employees. It grants federal employees the right to organize and bargain collectively, and it requires that unions and federal agencies negotiate in good faith over certain matters. The Statute further establishes a scheme of administrative and judicial review. Under that scheme, the Federal Labor Relations Authority (“FLRA”), a three-member agency charged with adjudicating federal labor disputes, reviews matters including negotiability and unfair labor practice disputes. When reviewing unfair labor practice complaints, the FLRA resolves whether an agency must bargain over a subject, violated the duty to bargain in good faith, or otherwise failed to comply with the Statute.

Direct review of the FLRA’s decisions is available in the courts of appeals. 5 U.S.C. § 7123(a).

. . .

Separately, the CSRA also established a comprehensive system for reviewing personnel action taken against federal employees. If an agency takes a final adverse action against an employee — removal, suspension for more than 14 days, reduction in grade or pay, or furlough for 30 days or less — the employee may appeal to the Merit Systems Protection Board (“MSPB”). The MSPB may order relief to prevailing employees, including reinstatement, backpay, and attorney’s fees. Probationary employees, however, generally do not enjoy a right to appeal to the MSPB. Employees may appeal final MSPB decisions to the Federal Circuit, which has exclusive jurisdiction over such appeals. This statutory review scheme, too, is exclusive, even for employees who bring constitutional challenges to federal statutes.

Nat’l Treasury, 2025 WL 561080, at *4–5 (cleaned up).

Under Thunder Basin Coal Co. v. Reich, a claim may fall outside of the scope of a special statutory scheme where “a finding of preclusion could foreclose all meaningful judicial review,” the claims considered are “wholly ‘collateral’” to a statute’s review provisions, or the claims are “outside the agency’s expertise.” 510 U.S. 200, 212–13 (1994). “These considerations do not form three distinct inputs into a strict mathematical formula. Rather, they serve as general guideposts useful for channeling the inquiry into whether the particular claims at issue fall outside an overarching congressional design.” Trump, 929 F.3d at 755 (cleaned up).

The union plaintiffs’ attempts to distinguish their instant claims from those channeled to the FLRA and MSPB in National Treasury, American Foreign Service, and Ezell are unconvincing, and the analysis laid out in those decisions applies with equal force here: The union plaintiffs and their members must adjudicate their claims through the FLRA and MSPB. The union plaintiffs’ claims “are the vehicle by which they seek to reverse the removal decisions, to return [members] to federal employment, and to [collect] the compensation they would have earned but for the adverse employment action.” Elgin v. Dep’t of Treasury, 567 U.S. 1, 22 (2012); Heckler v. Ringer, 466 U.S. 602, 614 (1984). That the FLRA or MSPB may lack the authority to adjudicate the union plaintiffs’ constitutional and APA claims does not constitute a foreclosure on all meaningful judicial review: Those issues can be “‘meaningfully addressed in the Court of Appeals’ that Congress [has] authorized to conduct judicial review.” Elgin, 567 U.S. at 17 (quoting Thunder Basin, 510 U.S. at 215). Both schemes “provide[] review in . . . an Article III court fully competent to adjudicate [plaintiffs’] claims.” Ibid.

Second, OPM argues that the CSRA and FSLMRS intended to channel all disputes that touch on a federal employment relationship to administrative review, no matter the party bringing such a dispute. But a claim brought by Western Watersheds Project (WWP), for example, against OPM, alleging that the latter issued an unlawful, arbitrary and capricious rule that undermined the BLM’s ability to respond to WWP’s FOIA requests, does not feature a federal employee, their union representative, or their federal employer (in this example BLM). The plaintiff’s injury — frustration of its ecological mission — is equally ill-suited to adjudication by a labor board. True, the termination of a federal employee remains embedded within the dispute: WWP’s injury, it argues, occurred because OPM demanded, unlawfully, that the probationary employees at BLM be terminated. That, standing alone, is not enough to bring a claim within the scope of the statutory schemes created for the resolution of bargaining disputes and employee claims. Asked to provide a single example of a claim brought by a third party, against a third party, that had been administratively channeled via Thunder Basin, OPM could not. Such a rule would stretch that doctrine too far.

In sum, it is unlikely that this Court has jurisdiction over the union plaintiffs, but it likely does have jurisdiction to hear the claims of the organizational plaintiffs. This order moves to consider whether the latter group has standing.

D. STANDING.

The Supreme Court has set the bar for standing as follows:

[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up; emphases added). Where plaintiff seeks prospective injunctive relief, he “must demonstrate that he has suffered or is threatened with a concrete and particularized legal harm, coupled with a sufficient likelihood that he will again be wronged in a similar way.” Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 680–81 (9th Cir. 2023) (en banc) (quoting Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc)). “[ i]n an injunctive case this court need not address standing of each plaintiff if it concludes that one plaintiff has standing.” Nat’l Ass’n of Optometrists & Opticians LensCrafters, Inc. v. Brown, 567 F.3d 521, 523 (9th Cir. 2009). Given the nature of this action and the injunction requested, however, it is necessary that standing be evaluated as to each organizational plaintiff.

“An organization has standing to bring suit on behalf of its members [“representational standing”] if ‘(1) at least one of its members would have standing to sue in his own right, (2) the interests the suit seeks to vindicate are germane to the organization’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’” Fellowship of Christian Athletes, 82 F.4th at 681 (quoting Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100, 1105–06 (9th Cir. 2006)).

An organization has direct organizational standing, meanwhile, “where it establishes that the defendant’s behavior has frustrated its mission and caused it to divert resources in response to that frustration of purpose.” E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 663 (9th Cir. 2021). “Of course, organizations cannot manufacture the injury by incurring litigation costs or simply choosing to spend money fixing a problem that otherwise would not affect the organization at all, but they can show they would have suffered some other injury had they not diverted resources to counteracting the problem.” Ibid. (internal quotation marks omitted); see also FDA v. All. for Hippocratic Med., 602 U.S. 367, 384–86 (2024). At bottom, the test is whether an organization’s ability to perform the services they were formed to provide has been “perceptibly impaired” by the challenged action. E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 765 (9th Cir. 2018) (cleaned up).

(i) The Coalition to Protect America’s National Parks (The Coalition) and Main Street Alliance (MSA).

“Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.” Sierra Club v. Morton, 405 U.S. 727, 734 (1972). In Desert Citizens Against Pollution v. Bisson, for example, BLM sought to exchange 1,745 acres of federal land in Imperial County for a 2,642-acre parcel in the Santa Rosa and Little Chuckwalla Mountains owned by Gold Fields, a mining company. 231 F.3d 1172, 1175 (9th Cir. 2000). Gold Fields aimed to turn the Imperial County tract into a landfill; the members of Desert Citizens aimed to save it from that grim fate via an APA action. Ibid. Our court of appeals held that the members’ continued use of the federal lands established an injury in fact: “The recreational or aesthetic enjoyment of federal lands is a legally protected interest whose impairment constitutes an actual, particularized harm sufficient to create an injury in fact for purposes of standing.” Id. at 1176 (citing Sierra Club, 405 U.S. at 734).

The National Park Service has terminated close to 1,000 newly hired employees (Neubacher Decl., Exh. A). Coalition board member Don Neubacher, the former Superintendent at Yosemite National Park (2010–2016) and Point Reyes National Seashore (1995–2010) submitted a declaration stating:

The Coalition to Protect America’s National Parks (“Coalition”) is a non-profit organization made up of over 3,400 members, all of whom are current, former, and retired employees and volunteers of the National Park Service. Together, they have accumulated over 50,000 years of experience caring for America’s most valuable natural and cultural resources. . . . Our members and their families are regular and avid users of the National Park System who would be adversely affected by any degradation of the parks or the programs of the NPS to preserve and protect the parks and make them available to visitors. Based on my experience as a park Superintendent, the termination of so many NPS employees at once will have an immediate adverse impact on the parks and park visitors. For example, at Yosemite, the park will likely have to stop specific functions and close park areas. There is no way to accommodate current visitation levels without additional staff support during the upcoming peak season. When there was a partial government shutdown in 2018, visitors trashed scenic viewpoints, defecated outside locked restrooms and trampled sensitive ecological areas with their vehicles and dogs. The park receives annual visitation of over 4 million people.

(Neubacher Decl. ¶¶ 2–5 (emphasis added)). In a separate declaration, Jonathan B. Jarvis, the former Director of the National Parks Service, underscores the immediacy and scope of the harm to park operations, environmental protection, and natural resource monitoring (Dkt. No. 18-11). Some of the likely, imminent harms laid out above have already come to pass. A member of the Coalition reported this week that they and their party were forced to abandon a trip to Joshua Tree National Park because the Black Rock Nature Center, which ordinarily provides shelter and commodes to the public, remained unstaffed and closed well after its scheduled opening time (Neubacher Suppl. Decl. ¶ 4).

The Coalition has standing. Its members’ continued use and enjoyment of our national parks will likely be, and in at least one case already has been, injured by the terminations that have taken place at the National Parks Service.

Main Street Alliance likewise has representational standing. MSA is a “national network of small businesses, with approximately 30,000 members throughout the United States. MSA helps small business owners realize their full potential as leaders . . . with the aim of creating an economy where all small business owners have an equal opportunity to succeed” (Phetteplace Decl. ¶¶ 2–3). “MSA’s small business members rely on the U.S. Small Business Administration (‘SBA’) for a variety of valuable services that help small businesses succeed. These services include loans, loan guarantees, and grants; disaster relief; assistance in connecting small businesses with government contracting opportunities; and a national network of some 1,000 Small Business Development centers that provide counseling and training to help entrepreneurs start their own businesses” (id. ¶ 4). A February 20 letter from the Ranking Member of the Senate Committee on Small Business and Entrepreneurship to the Administrator of the SBA cited reporting that hundreds of probationary SBA employees had been terminated across the country and stated that “through our own investigation and public reporting, we have learned that the fired employees included those supporting disaster assistance and oversight of loan programs” (id. Exh. A). MSA asserts that the mass terminations at the SBA are likely to impair disaster relief, the provision of loan guarantees, and other services necessary for MSA’s members to open a business or stay float (id. ¶ 9). Some members who already have entered into contracts with the expectation of obtaining timely loan guarantees “are likely to be on the hook for expenses owed to contractors and suppliers without the ability to pay amounts owed” (id. ¶ 8).

(ii) The Western Watersheds Project (the Project).

In Havens Realty Corp. v. Coleman, an organization “whose purpose was to make equal opportunity in housing a reality in the Richmond Metropolitan Area,” HOME, brought a Fair Housing Act claim against Havens Realty, which owned and operated apartment complexes in Richmond. 455 U.S. 363, 368 (1982) (internal quotation marks omitted). HOME asserted that Havens Realty’s unlawful “racial steering” — providing false information regarding the availability of housing to black individuals to maintain a segregated property — had frustrated its mission and, critically, its housing counseling service. Id. at 367, 369. The Supreme Court rejected Haven Realty’s standing challenge, holding:

If, as broadly alleged, petitioners’ steering practices have perceptibly impaired HOME’s ability to provide counseling and referral services for low-and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests.

Id. at 379 (citing Sierra Club, 405 U.S. at 739).

The Project has standing to challenge OPM’s directive to fire probationary employees at BLM and the U.S. Fish and Wildlife Service. Erik Molvar, a wildlife biologist formerly employed by the U.S. Forest Service and Army Corps of Engineers, and now the Project’s Executive Director, states that it “is a non-profit environmental conservation group that works to influence and improve public lands management” (Molvar Decl. ¶¶ 3–4). Founded in 1993, the group has some 14,000 members, with field offices in Idaho, Montana, Wyoming, Arizona, Nevada, and Oregon. The group is primarily focused on “the negative impacts of livestock grazing” (ibid.). The group is also an active litigant in the federal courts, where it advocates against commercial grazing on public lands. See, e.g., W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011); W. Watersheds Project v. Abbey, 719 F.3d 1035 (9th Cir. 2013); W. Watersheds Project v. Interior Bd. of Land Appeals, 62 F.4th 1293 (10th Cir. 2023); W. Watersheds Project v. U.S. Forest Serv., 603 F. App’x 612 (9th Cir. 2015) (mem.).

First, the Project has shown actual harm, namely that its ecological mission has been perceptibly impaired by the termination of employees at the BLM:

This mass termination of employees will have an immediate adverse effect on the ability of the [Project] to accomplish its mission.

For example, I was told by a federal employee on February 20, 2025, that because of staffing issues the Bureau of Land Management is unable to respond to a Freedom of Information Act request submitted by the [Project]. Our work depends on timely access to public records.

(Molvar Decl. ¶¶ 7–8). The termination of range managers and biologists, meanwhile, will diminish BLM’s ability to provide timely “land health assessments to monitor the impact of cattle and sheep grazing on public lands,” further undercutting the Project’s ability to pursue its stated goals (id. ¶ 8).

Second, the Project has shown harm to both its members’ protected interests in and its own efforts to advocate on behalf of endangered species. The Project is a party in an ongoing litigation in the District of Montana (Molvar Suppl. Decl. ¶ 3). Ctr. for Biological Diversity v. Haaland, No. 23-cv-02-BU-DLC (D. Mont.) (Judge Dana Christensen). There, the Project (and its co-plaintiffs) challenged a 2020 finding from the FWS concerning the Missouri River Distinct Population Segment of Arctic grayling, a freshwater fish with precious little habitat left, under the Endangered Species Act (Molvar Suppl. Decl. ¶ 3). Following a partial grant of summary judgment in the plaintiffs’ favor, Judge Christensen ordered FWS to make a new finding regarding the status of the upper Missouri River Basin Distinct Population Segment of Arctic grayling by August 2025. Haaland, No. 23-cv-02-BU-DLC, Dkt. No. 52 at 53. On February 12 the FWS sought and received an extension of that deadline to February 2027 (Molvar Suppl. Decl. at ¶ 3). In a declaration to Judge Christensen, the FWS conditioned their ability to meet that new deadline on the “assumption[]” that “the Service will continue to have the authority to hire and retain sufficient listing program staff to be able to carry out the specified commitments.” Haaland, No. 23-cv-02-BU-DLC, Dkt. No. 63-1 ¶ 15. The Project represents that, as of February 26, some 400 FWS employees have been terminated (Molvar Suppl. Decl. ¶ 3).

Executive Director Molvar, himself a member of the Project, frequently fishes for Arctic grayling in the lakes of the Sapphire Mountains, in Glacier National Park, and in Alaska (id. at ¶ 9). He plans to do so again during a planned July 2025 trip to Alaska (ibid.). Under Sierra Club and its progeny, therefore, the Project has standing to vindicate its members’ legally protected interest in the recreational enjoyment of federal lands and the flora and fauna therein.

(iii) Vote Vets Action Fund Inc. (VoteVets) and Common Defense Civic Engagement (Common Defense).

In Fellowship of Christian Athletes, an international student ministry challenged the defendant school district’s decision to bar its local chapter from formal “recognition” as a student-run organization by the Associated Student Body (ASB). 82 F.4th at 681. The FCA stated it was an international “ministry group formed for student athletes to engage in various activities through their shared Christian faith” that operates through more than 7,000 local chapters. Id. at 671–72. Their stated mission was to equip “student athletes from all backgrounds for fellowship, spiritual growth, and service on their campuses.” Ibid. FCA required that students serving in a leadership capacity affirm certain religious beliefs through a “Statement of Faith” (stating, among other things, that “marriage is exclusively the union of one man and one woman”) and a “Sexual Purity Statement.” Id. at 672–73. The defendant school district, citing the “discriminatory nature” of both statements, first stripped the club of its recognition as an official student club, and then imposed new “non-discriminatory criteria” for all student clubs, under which the local FCA chapter would be denied recognition in future years. Id. at 675, 678–79. While FCA’s local chapter remained on campus, it lost out on certain campus privileges. See id. at 673.

Our court of appeals, sitting en banc, held that the FCA’s national office had direct organizational standing because the local chapter’s exclusion from the benefits associated with ASB recognition — access to fundraisers, the student yearbook, priority access to meeting spaces, and so on — “undoubtedly hampered,” id. at 683, the FCA’s mission “to lead every coach and athlete into a growing relationship with Jesus Christ and His church,” id. at 672. The FCA’s national office moreover, “had to ‘divert[] resources’ in ‘counteracting the problem’ posed by the derecognition,” including “a huge amount of staff time, energy, effort, and prayer that would normally have been devoted to preparing for school or ministry.” Ibid.

Plaintiff VoteVets has standing. VoteVets is a “non-partisan, non-profit organization” that has “nearly 2 million supporters . . . with whom it regularly communicates about issues affecting veterans, including the operations, programs, and services available through the U.S. Department of Veterans Affairs” (Eaton Decl. ¶3). The VA has “dismissed over 1,000 probationary employees,” “rais[ing] concerns about potential staffing shortages and the quality of care provided to veterans” (id. ¶ 8). For example, “the layoffs have hindered the recruitment of essential support staff for VCL positions such as trainers and quality assurance personnel” (id. ¶ 9). This shortage “has overwhelmed existing supervisors and affected the VCL’s ability to provide timely assistance to veterans in crisis.” Major General Eaton attests that:

The February 2025 probationary terminations have had a significant impact on the organizational activities of VoteVets. The time of VoteVets’ staff and consultants has been diverted from VoteVets’ regular activities to field and respond to inquiries from veterans and their families and to connect them with case workers in congressional offices. This has taken almost all of our resources since the probationary terminations began, and has prevented us from performing our regular activities to meet the needs of veterans and their families.

(id. ¶ 11). VoteVets’ members’ access to services critical to the organization’s mission has been hampered, and VoteVets itself has been forced to divert “almost all of [their] resources” in “counteracting the problem,” depriving the organization of its ability to continue to provide services to its members (ibid.).

Plaintiff Common Defense likewise has standing. Common Defense is a “grassroots membership organization of progressive veterans, military families, and civilian supporters” (Arbulu Decl. ¶ 2). With approximately 33,187 members in California (about 2,000 of them veterans), Common Defense “mobilize[s] veterans to support and advocate for policies that help veterans, military families, and all working families,” offers training and helps members begin issue campaigns, and otherwise engages in legislative and political advocacy (id. ¶¶ 3–5, 11). Military veterans compose a large percentage of federal employees, and widespread termination — particularly at the VA and DOD — have had a disproportionate impact on persons whom Common Defense typically serves:

As a result of these developments, Common Defense has had to devote considerable resources to responding to requests from our members and providing guidance about the mass probationary terminations. Many members believe that the termination of their employment may be imminent, and understandably have asked questions — by email, by phone, and on our members’ slack channel — about what the letter means for their rights as employees. Responding to members questions, and working to determine what answers we can give to those members, diverts resources from Common Defense’s advocacy mission and core priorities, including working to expand ballot access at the state level, advancing initiatives to address climate change, and training and educating members.

(id. ¶ 6). Common Defense, like VoteVets, has diverted considerable resources otherwise intended for the pursuit of its advocacy mission to the problems presented to its members, and its mission, by mass terminations, particularly at the VA and DOD.

* * *

First, OPM counters that plaintiffs fail on causation: There was no direction, merely a request; that request was carried out by some agencies; it was those agencies’ independent, intervening actions that are the proximate cause of plaintiffs’ alleged harm. This argument rests on OPM’s broader factual position that its memos and other communications to agencies regarding probationary employees constituted mere guidance, not direction. But plaintiffs have assembled a mountain of evidence supporting their more concise causal chain: OPM directed mass firings and plaintiffs each likely will be (or have been) injured as a result. Plaintiffs have each established a sufficient causal link between the mass termination of employees at the implicated agencies, and the imminent, foreseeable, and in some cases actual injuries that they face.

Next, OPM argues redressability:

They ask the Court to order agencies to rescind probationary removals and reinstate removed employees. But, apart from OPM, no other federal agency is a party here, leaving the Court without the power to order those agencies to take any action. Thus, Plaintiffs cannot show that an order of this Court would likely grant their requested relief, rendering their claimed injuries non-redressable here.

(Dkt. No. 33 at 13). Plaintiffs fairly allege that they have been harmed by OPM’s direction to other agencies to fire their probationary employees. Declaratory and injunctive relief enjoining OPM from issuing such a directive — one request among many made by plaintiffs — will likely redress their alleged injuries.

2. IRREPARABLE HARM.

“[P]laintiffs may not obtain a preliminary injunction unless they can show that irreparable harm is likely to result in the absence of the injunction.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). They have done so here.

“[T]he Supreme Court has instructed us that ‘[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.’” Ibid. (alterations in original) (quoting The Lands Council v. McNair, 537 F.3d 981, 1004 (9th Cir. 2008) (en banc)). Relatedly, “deprivation of a source of personal satisfaction and tremendous joy can constitute an irreparable injury.” Ft. Funston Dog Walkers v. Babbitt, 96 F. Supp. 2d 1021, 1039 (N.D. Cal. 2000) (citing Chalk v. U.S. Dist. Ct., 840 F.2d 701, 709 (9th Cir. 1988)). That is true as to loss of access to national recreational areas. Ibid. The partial closure and degradation of national parks constitutes likely, irreparable harm due to both environmental injury and loss of access (see Neubacher Decl. ¶¶ 2–5). In at least one instance, a closure at Joshua Tree has resulted in actual harm (see Neubacher Suppl. Decl. ¶ 4). And the Arctic grayling, if it goes, is not coming back (see Molvar Suppl. Decl. ¶ 3–9). The Coalition and the Project have established irreparable harm.

Loss of access to essential government services also constitutes likely, and in some cases actual, irreparable harm. For example, the Veterans Crisis Line — an indispensable resource for our veterans in times of crisis — has been “overwhelmed” and its ability to provide care diminished for lack of staff (Eaton Decl. ¶ 9). Loss of access to that critical resource, standing alone, constitutes irreparable harm to VoteVets’ members. Its failure to meet the needs of our veterans presents the further likelihood of tragic results. MSA’s members’ access to crucial SBA services, including the provision of loan guarantees, is likely to be diminished (Phetteplace Decl. ¶¶ 5–9), and the Western Watersheds Project’s access to FOIA production already has been impacted (Molvar Decl. ¶¶ 7–8).

Finally, plaintiffs face irreparable harm because they have diverted significant or even all present resources to responding to the hardships created by the mass termination of probationary employees (see, e.g., Arbulu Decl. ¶ 6; Eaton Decl. ¶ 11).

MSA, the Coalition, the Project, VoteVets, and Common Defense have each established irreparable injury.

OPM’s rebuttals, tailored largely to the union plaintiffs, are moot (Dkt. No. 33 at 10). OPM’s assertion, meanwhile, that “[p]laintiffs have produced no credible evidence that terminations of federal employees have caused a disruption in critical government services” (ibid.) is refuted by the record, discussed at length in this memorandum’s consideration of standing.

3. THE BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST.

Because OPM is a party in this action, the balance of the equities and the public interest merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). Here, they strongly favor plaintiff. “The preservation of the rights in the Constitution and the legality of the process by which government agencies function certainly weighs heavily in the public interest.” Nat’l Treasury Emps. Union v. U.S. Dep’t of Treasury, 838 F. Supp. 631, 640 (D.D.C. 1993) (Judge Harold Greene). Plaintiffs have presented real harms, detailed above, to their organizations, their members, and their missions, while OPM has not provided a substantive opposition (Dkt. No. 33 at 22–23).

In sum, each Winter factor favors granting a limited injunction.

CONCLUSION

Based on the foregoing, the Court granted the following relief at the close of the February 27 argument:

That OPM’s January 20 memo, February 14 email, and all other efforts to direct the termination of employees at NPS, BLM, VA, DOD, SBA, and NSF are illegal, invalid and must be stopped and rescinded. That OPM must communicate that decision to those agencies by the next day, February 27.

(Dkt. No. 41).

This memorandum amends the bench order to address two errors (the inclusion of the NSF, and the exclusion of FWS). The Court’s TRO is accordingly AMENDED to the following:

It is ORDERED that:

OPM’s January 20 memo, February 14 email, and all other efforts by OPM to direct the termination of employees at NPS, BLM, VA, DOD, SBA, and FWS are unlawful, invalid, and must be stopped and rescinded.

OPM shall provide written notice of this order to NPS [National Park Service], BLM [Bureau of Land Management], VA [Veteran's Affairs], DOD [Department of Defense], SBA [Small Business Administration], and FWS [Fish & Wildlife].

The evidentiary hearing described at the February 27 motion hearing shall occur on MARCH 13, 2025, AT 8 AM. The hearing will be in person in Courtroom 12.

Dated: February 28, 2025.

__________________
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

[admin]

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al.,

Plaintiffs,

v.

DEPARTMENT OF LABOR, et al.,

Defendants.

Civil Action No. 25-0339 (JDB)

Highlights:

Plaintiffs seek expedited discovery for the purpose of finding facts “critical to assessing [p]laintiffs’ irreparable injuries.”…

The agency action challenged here is unlike the actions normally challenged in APA cases, such as a promulgated regulation or a grant or denial of an application.... [P]laintiffs challenge the agency defendants’ “policies” to “grant [USDS] employees access to information systems,” which plaintiffs say amount to a new policies of permitting unlawful disclosures of protected information….. And, thus far, the parties’ arguments and the record in this case have “not clarif[ied] matters” regarding the alleged policies’ scope…..

The “contours of the precise policy at issue” are far from defined….As such, the discovery requested here is appropriate, for it is not so much “fact-finding” as it is “filling in gaps . . . to determine what the agency actually did.”… Nor does the Court find it evident that there exists a standard administrative record that defendants could submit—defendants have so far only relied on declarations taken after the alleged policies or decisions took effect, whereas the relevant parts of an administrative record are typically the facts before the agency and reasons the agency gave ex ante….this case merits an exception to the general prohibition of discovery in APA cases….

[T]he facts that bear on irreparable harm remain opaque….These include the structure of USDS and the scope of its authority, which the Court has said are not only unclear on the current record, but also critical to deciding the question of whether USDS is an agency within the meaning of the Economy Act of 1933—and thus whether its employees are permitted by the Privacy Act to view individual information….

Plaintiffs seek discovery on these issues in part because defendants already put into the record some facts relevant to the issues. The declarations defendants filed with their oppositions to plaintiffs’ TRO motions—all of which were prepared well after the challenged agency actions—introduced before-unknown information—some of which conflicted—on how USDS is operating at the defendant agencies: from the number of USDS employees working at each defendant agency, to the training and agreements put in place for those employees, to the access those employees are given….It would be strange to permit defendants to submit evidence that addresses critical factual issues and proceed to rule on a preliminary injunction motion without permitting plaintiffs to explore those factual issues through very limited discovery.

Considering that (1) the Court itself stated that further information on the topics on which plaintiffs seek discovery would be vital to resolving a preliminary injunction motion and (2) defendants’ declarations teed up the factual questions plaintiffs seek to plumb, the Court cannot say that plaintiffs’ request is merely “a thinly veiled attempt to circumvent the normal litigation process.”…. Quite the opposite....

The interrogatories to the agencies seek information about the extent of access to sensitive systems agencies have given USDS employees, who at the agencies authorized such access, and any training USDS employees received….this information goes to irreparable harm because, if USDS employees are not permitted by the Privacy Act to view these systems, plaintiffs argue they are injured. Similarly, the interrogatories to USDS focus on facts relevant to irreparable harm: the structure, chain of command, and sharing policies of USDS go to the question of whether USDS is an agency permitted to detail employees to the three agency defendants…..

[D]efendants acknowledged these documents were relevant to the resolution of plaintiffs’ second TRO motion, and the impending preliminary injunction motion will rest on the same issues the TRO motion did….

[P]laintiffs here have put forward three specific topics to which each deposition will be limited. For the agency defendants, the Rule 30(b)(6) topics focus on how, if at all, the agencies’ systems-access procedures changed following USDS’s creation, the role of USDS employees at the agencies, and those employees’ use of sensitive systems….the topics for the Rule 30(b)(6) deposition of USDS focus on USDS’s structure and authority, as well as the role and responsibilities of USDS employees working at defendant agencies….

[T]he Privacy Act—the act on which plaintiffs have largely rested their case, including the harm they allegedly suffered—only protects individual information….(defining “record” as “information about an individual that is maintained by an agency”). The Court thus amends plaintiffs’ definition of Sensitive Systems to refer only to “any system of records that contains Personally Identifiable Information (PII) or Personal Health Information (PHI).”

The issues in front of this Court are limited to USDS’s presence at the agencies that are defendants in this case. Which other agencies may be hosting USDS employees is not relevant to the resolution of plaintiffs’ impending motion to preliminarily enjoin USDS, DOL, HHS, and CFPB. The Court will thus eliminate question 1(f)….

Defendants argue that the interrogatories and document requests are unduly burdensome because of the number of subparts and the focus on agency structure, training, and systems usage….Providing this number of names and dates is not so burdensome, especially when one considers that none of this information would require going back farther than January 20, 2025, the date President Trump renamed USDS….

As for the document production requests, the Court already explained that the documents plaintiffs seek are limited to documents referenced by three of defendants’ declarants in statements made less than two weeks ago….Obtaining these documents should thus not be overly burdensome….

[D]efendants argue most strongly against the Rule 30(b)(6) depositions…..

[T]he Court will limit plaintiffs to a total of eight hours for their four depositions. Plaintiffs can allocate those eight hours between USDS and the agency defendants as plaintiffs see fit.

In sum, the Court determines the burden of the expedited discovery plaintiffs seek—taking into consideration the Court’s alterations—is not unbearable….

Defendants indicate that they intend to seek dismissal on the basis of “Article III standing, APA reviewability, and Privacy Act preclusion,” issues which the defendants contend “do not require any factual development” and thus permitting expedited discovery could result in the situation Guttenberg warned against: ultimately unnecessary expensive and burdensome discovery……

[T]he Court concludes that this factor does not weigh strongly in defendants’ favor. Just as this is not a run-of-the-mill APA case, this is not the standard civil case in which a motion to dismiss is filed before any legal or factual development…. this is not a case where the motion to dismiss will contain dispositive arguments the Court has yet to contemplate. As a result, while it’s a close question, the Court cannot say reasonableness demands prohibiting expedited discovery until the resolution of defendants’ impending motion to dismiss….

The Court thus determines that to whatever extent the final factor may slightly favor defendants, the other four factors outweigh it. Hence, the Court concludes that plaintiffs are entitled to the limited expedited discovery they request, subject to the further alterations and limitation the Court has detailed....

The Court uses USDS to refer to both United States DOGE and the United States DOGE Service Temporary Organization….

[T]he Court determines that the information plaintiffs seek regarding the scope of USDS employees’ access to sensitive systems and the authority and structure of USDS is necessary for determining the question the contours of defendant agencies’ policies and actions.

-- UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., Plaintiffs, v. DEPARTMENT OF LABOR, et al., Defendants. Civil Action No. 25-0339 (JDB). Order [Judge John D. Bates, United States District Judge, February 27, 2025

ORDER

Before the Court is [44] plaintiffs’ motion for expedited discovery. Whether to grant the motion is a close question, but the Court concludes it will grant the motion in part. Although this in an Administrative Procedure Act (“APA”) case, the discovery plaintiffs request is proper because it is necessary to determine the contours of the agency actions that plaintiffs challenge. The limited expedited discovery plaintiffs request is also reasonable. With some modest alterations by the Court, the discovery is narrowly tailored to the issues that this Court has already indicated would be essential to deciding plaintiffs’ impending preliminary injunction motion. And the limited discovery will not overly burden defendants: the written discovery largely seeks only individuals’ identities, dates, and names of systems, as well as documents that defendants’ own declarations have referenced, and the four depositions—which the Court will cap at lasting eight hours in the aggregate—are limited to three properly-scoped topics.

BACKGROUND

Plaintiffs initiated this lawsuit—then against only the Department of Labor (“DOL”) and the United States DOGE Service (“USDS”)1—on February 5, 2025. See Mem. Op. & Order [ECF No. 18] (“First TRO Order”) at 4. Along with their complaint, plaintiffs moved for a temporary restraining order (“TRO”) to enjoin USDS employees from accessing, and DOL from granting USDS employees access to, individual information protected by the Privacy Act of 1974. See id. at 2. But the Court denied that TRO motion because plaintiffs failed to demonstrate a substantial likelihood of Article III standing. Id. at 9.

The next week, plaintiffs filed an amended complaint, which added two nonprofits and an additional union as plaintiffs and the Department of Health and Human Services (“HHS”) and the Consumer Financial Protection Bureau (“CFPB”) as defendants. Am. Compl. [ECF No. 21]. Plaintiffs filed another TRO motion two days later, seeking to enjoin all defendants from, inter alia, sharing personally identifiable information with USDS employees. Pls.’ Mot. Renewed TRO [ECF No. 29]. But the Court denied that motion too, because plaintiffs failed to show they were likely to succeed on the merits of their Privacy Act (or any other) claim. See Mem. Op. & Order [ECF No. 34] (“Second TRO Order”) at 2–10. Specifically, the Court determined that plaintiffs did not adequately demonstrate that USDS [DOGE] employees working at the defendant agencies are not “employees of the agency” within the meaning of the Privacy Act, meaning plaintiffs failed to demonstrate that the USDS employees were prohibited by law from viewing the relevant data. Id. at 5–8.

In accordance with the Court’s order, see id. at 11, the parties then filed a proposed briefing schedule, see Joint Statement by Parties Concerning Scheduling [ECF No. 42]. Plaintiffs notified the Court that they planned to file a motion for expedited discovery to gather evidence prior to the preliminary injunction motion they also intend to file, and requested that the Court thus set a discovery schedule and preliminary injunction briefing schedule. Id. at 1–4. Defendants countered that they would oppose any motion for expedited discovery and that the Court should not permit plaintiffs to file a preliminary injunction before the Court resolves the motion to dismiss defendants intend to file. Id. at 4–5. The Court struck a middle ground: it indicated limited expedited discovery may be appropriate in this case, set a preliminary injunction briefing schedule to account for possible discovery, and set a motion to dismiss briefing schedule that concludes prior to the start of the preliminary injunction briefing. See Order [ECF No. 43] (“Scheduling Order”) at 1–3. Plaintiffs then filed the instant motion for expedited discovery, Pls.’ Mot. Expedited Disc. [ECF No. 44] (“Disc. Mot.”), which defendants opposed, Defs.’ Opp’n Pls.’ Mot. Expedited Disc. [ECF No. 45] (“Disc. Opp’n”), and plaintiffs later replied, Pls.’ Reply in Supp. Mot. Expedited Disc. [ECF No. 46] (“Reply”).

ANALYSIS

Plaintiffs seek expedited discovery for the purpose of finding facts “critical to assessing [p]laintiffs’ irreparable injuries.” Disc. Mot. at 1. Specifically, they ask the Court to permit them to submit to defendants limited interrogatories and requests for production of documents, and to conduct four depositions (one for each agency and one for USDS) pursuant to Federal Rule of Civil Procedure 30(b)(6).2 Pls.’ Proposed Interrogs. & Reqs. for Produc. of Docs. [ECF No. 44-2] (“Proposed Disc.”) at 1–7.

Generally, Federal Rule of Civil Procedure 26(d)(1) prohibits discovery until after the parties’ Rule 26(f) conference, Fed. R. Civ. P. 26(d)(1); see also Local Civ. R. 26.2(a), which has yet to happen in this case. But Rule 26(d)(1) also gives courts discretion to make exceptions. See Guttenberg v. Emery, 26 F. Supp. 3d 88, 97 (D.D.C. 2014). That said, the rule is silent as to “a standard to apply when determining whether expedited discovery is appropriate.” Id. As a result, this Court has adopted the so-called reasonableness approach. Id. at 98. Under that approach, “the Court considers the ‘reasonableness of the request in light of all of the surrounding circumstances,’ which include: ‘(1) whether a preliminary injunction is pending; (2) the breadth of the discovery requests; (3) the purpose for requesting the expedited discovery; (4) the burden on the defendants to comply with the requests; and (5) how far in advance of the typical discovery process the request was made.’” Id. (quoting In re Fannie Mae Derivative Litig., 227 F.R.D. 142, 142–43 (D.D.C. 2005)). These factors, however, do not form a hard-and-fast rule. Rather, they “are only guidelines for the exercise of the Court’s discretion.” Id.; cf. Nixon v. Freeman, 670 F.2d 346, 363 (D.C. Cir. 1982) (“A district court has broad discretion over . . . discovery.”).

I. Administrative Procedure Act

Before turning to the reasonableness factors, the Court addresses defendants’ overarching argument: that the Court should not permit discovery at all because this is an APA case. See Disc. Opp’n at 6. Defendants correctly state that a “[c]ourt must generally base its review in an APA case ‘on the full administrative record that was before the [agency] at the time [it] made its decision,’ not on a record generated by the parties through the discovery process.” Id. (alterations in original) (quoting Am. Bioscience, Inc. v. Thompson, 243 F.3d 579, 582 (D.C. Cir. 2001)). Defendants argue that means plaintiffs are not permitted to seek discovery prior to defendants’ submission of an administrative record, and even then, only if plaintiffs were to make “a strong showing of bad faith or improper behavior or” it is evident that “the record is so bare that it prevents effective judicial review.” Id. (quoting Com. Drapery Contractors, Inc. v. United States, 133 F. 3d 1, 7 (D.C. Cir. 1998)).

Defendants’ argument glosses over the fact that, as the Court noted in its earlier order, this is not an ordinary APA case. See Scheduling Order at 1–2. The agency action challenged here is unlike the actions normally challenged in APA cases, such as a promulgated regulation or a grant or denial of an application. Rather, plaintiffs challenge the agency defendants’ “policies” to “grant [USDS] employees access to information systems,” which plaintiffs say amount to a new policies of permitting unlawful disclosures of protected information. See Mem. in Supp. Pls.’ Renewed Mot. TRO [ECF No. 29-1] (“Second TRO Mot.”) at 23. Defendants counter that the USDS employees are in fact employees of the defendant agencies and thus the agencies’ choices to give them access to information systems are not new “policies,” but merely standard “agency[] decision[s] to give . . . employee[s] access to [those] systems.” See Defs.’ Mem. Opp’n Pls.’ Renewed Mot. TRO [ECF No. 31] at 18. In other words, a key question in this case is “whether the alleged disclosure policy in fact exists.” See Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359, 360 (D.C. Cir. 2005). And, thus far, the parties’ arguments and the record in this case have “not clarif[ied] matters” regarding the alleged policies’ scope. See id.; Second TRO Order at 8 (explaining the lack of clarity on the issue of whether USDS employees are agency employees). Further, the scope of the alleged policy also impacts the scope of the harm to plaintiffs—for, if the Privacy Act permits the USDS employees to view the individual information at issue, the theory of harm plaintiffs have thus far asserted fails. See Second TRO Order at 3 n.1.

In such situations, a court may depart from the default APA no-discovery rule. See Venetian Casino Resort, 409 F.3d at 360. For example, in Hispanic Affairs Project v. Acosta, plaintiffs brought a claim under the APA alleging that the Department of Homeland Security had a “practice of habitually approving and extending H-2A visas for lengthy periods of time.” 901 F.3d 378, 388 (D.C. Cir. 2018). Homeland Security argued—much like defendants here have argued—plaintiffs did not adequately allege a challengeable agency action but rather a “programmatic challenge.” Id. at 387–88. The D.C. Circuit disagreed, determining that the plaintiffs alleged a “particular practice” that would be challengeable if found to exist. See id. at 388. So the Circuit remanded to the district court, explaining that, “[o]n remand, the district court [wa]s free to exercise its discretion to permit further discovery to ascertain the contours of the precise policy at issue.” Id. (internal quotation marks omitted); see also Venetian Casino Resort, 409 F.3d at 360.

This Court may exercise that same discretion here. The “contours of the precise policy at issue” are far from defined. See Hispanic Affairs Proj., 901 F.3d at 388. As such, the discovery requested here is appropriate, for it is not so much “fact-finding” as it is “filling in gaps . . . to determine what the agency actually did.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1227 (D.C. Cir. 1993). Nor does the Court find it evident that there exists a standard administrative record that defendants could submit—defendants have so far only relied on declarations taken after the alleged policies or decisions took effect,3 whereas the relevant parts of an administrative record are typically the facts before the agency and reasons the agency gave ex ante, see Grace v. Barr, 965 F.3d 883, 903 (D.C. Cir. 2020); Strategic Analysis, Inc. v. U.S. Dep’t of Navy, Civ. A. No. 96-300 (PLF), 1996 WL 294262, at *1–2 (D.D.C. May 29, 1996) (granting expedited discovery in APA case). In short, this case merits an exception to the general prohibition of discovery in APA cases. So the fact that this is an APA case does not preclude the Court from granting plaintiffs’ motion for expedited discovery.

II. Reasonableness Approach

Seeing no initial barrier to permitting expedited discovery here, the Court now assesses the five factors of the reasonableness approach, albeit somewhat out of order. In the end, the Court determines that, taken together, the factors weigh in favor of granting—in part—plaintiffs’ motion for expedited discovery.

A. Whether a Preliminary Injunction Motion is Pending

The first reasonableness factor is whether a preliminary injunction motion is pending. Guttenberg, 26 F. Supp. 3d at 98. The literal answer to this question is no: there is no preliminary injunction motion currently on the docket. But, contrary to defendants’ argument otherwise, see Disc. Opp’n at 11, that does not mean that this factor weighs in favor of denying plaintiffs’ motion. Plaintiffs not only intend to file a preliminary injunction motion imminently, but the Court has ordered them to do so by not later than April 1, 2025. See Scheduling Order at 3. Garnering support for that anticipated preliminary injunction motion is “the very purpose of [plaintiffs’] motion for expedited discovery.” Legal Tech. Grp., Inc. v. Mukerji, Civ. A. No. 17-631 (RBW), 2017 WL 7279398, at *3 (D.D.C. June 5, 2017); Disc. Mot. at 1 (“Tailored discovery . . . will enable the Court to evaluate Plaintiffs’ forthcoming motion for a preliminary injunction.”). And, as discussed more below, plaintiffs’ two TRO motions have revealed the factual and legal issues critical to the impending preliminary injunction motion. As a result, “the parameters of relevant discovery are [not] difficult to determine at this juncture in the case.” See 4SIGHT Supply Chain Grp., LLC v. Kent, Civ. A. No. 2:19-12476 (WHW) (CLW), 2019 WL 13235533, at *2 (D.N.J. June 27, 2019) (explaining why the lack of a pending preliminary injunction motion can warn against granting discovery); Reply at 3. The first factor thus weighs somewhat in favor of granting plaintiffs’ motion for expedited discovery. See Legal Tech Grp., 2017 WL 7279398, at *3.4

B. The Purpose for Requesting Expedited Discovery

That brings the Court to plaintiffs’ purpose for requesting expedited discovery. As stated, plaintiffs seek expedited discovery to support their impending preliminary injunction motion. See Disc. Mot. at 1. But unlike in other cases in which the Court has denied motions for expedited discovery, plaintiffs’ purpose is to “reveal information related to the preliminary injunction as opposed to the case as a whole.” See Guttenberg, 26 F. Supp. 3d at 98 (denying expedited discovery that nominally sought to support a preliminary injunction motion but in fact went primarily to the merits); Damus v. Nielson, 328 F.R.D. 1, 4 (D.D.C. 2018). Plaintiffs focus their discovery requests on the dispositive preliminary injunction issue of irreparable harm. See Disc. Mot. at 4–7. They explain that, as elucidated through the litigation on their two TRO motions, the facts that bear on irreparable harm remain opaque. See id. These include the structure of USDS and the scope of its authority, which the Court has said are not only unclear on the current record, but also critical to deciding the question of whether USDS is an agency within the meaning of the Economy Act of 1933—and thus whether its employees are permitted by the Privacy Act to view individual information. Second TRO Order at 8; see also id. at 3 n.1 (explaining that plaintiffs’ asserted harm rests on Privacy Act claim).

Another point is worth mentioning. Plaintiffs seek discovery on these issues in part because defendants already put into the record some facts relevant to the issues. The declarations defendants filed with their oppositions to plaintiffs’ TRO motions—all of which were prepared well after the challenged agency actions—introduced before-unknown information—some of which conflicted—on how USDS is operating at the defendant agencies: from the number of USDS employees working at each defendant agency, to the training and agreements put in place for those employees, to the access those employees are given. See generally Decl. of Adam Ramada [ECF No. 16-1] (“Ramada Decl.”); Decl. of Ricky J. Kryger [ECF No. 31-1] (“Kriger Decl.”); Decl. of Garey Rice [ECF No. 31-2] (“Rice Decl.”); Decl. of Adam Martinez [ECF No. 31-3] (“Martinez Decl.”). It would be strange to permit defendants to submit evidence that addresses critical factual issues and proceed to rule on a preliminary injunction motion without permitting plaintiffs to explore those factual issues through very limited discovery.

Considering that (1) the Court itself stated that further information on the topics on which plaintiffs seek discovery would be vital to resolving a preliminary injunction motion and (2) defendants’ declarations teed up the factual questions plaintiffs seek to plumb, the Court cannot say that plaintiffs’ request is merely “a thinly veiled attempt to circumvent the normal litigation process.” In re Fannie Mae, 227 F.R.D. at 143. Quite the opposite. The purpose factor thus weighs in favor of granting plaintiffs’ motion for expedited discovery.

C. The Breadth of the Discovery Requests

Now onto the question of whether plaintiffs’ proposed discovery sweeps too broadly for its purpose. Plaintiffs supplied the Court with the interrogatories, document-production requests, and deposition topics they seek from defendants. To summarize, plaintiffs seek to (1) submit to defendants two interrogatories (with subparts); (2) submit to defendants a short set of document requests, and (3) conduct four Rule 30(b)(6) depositions, one for USDS and one for each agency defendant. Proposed Disc. at 1–7. The first interrogatory—containing eight subparts—is mainly directed to the defendant agencies. Id. at 3. The second—containing five subparts, one with four additional sub-subparts—is directed mainly at USDS. Id. at 3–4. The proposed request for document production contains seven requests directed at agency defendants that seek documents referenced in the declarations defendants submitted in support of their opposition to plaintiffs’ second TRO motion. See id. at 5. Lastly, the proposed Rule 30(b)(6) depositions for the agency defendants and USDS are each scoped to cover three multiprong topics and would be limited in duration to three and a half hours. Id. at 6–7.

In defendants’ view, these requests are not properly scoped to clarify the agencies’ actions as needed for ruling on a preliminary injunction in this case. See Disc. Opp’n at 17–18. The Court disagrees. With the caveats stated below, the scope of plaintiffs’ discovery request is tailored to determining the contours of the agencies’ actions that are necessary for deciding a preliminary injunction motion, primarily irreparable harm.5 Start with the interrogatories. The interrogatories to the agencies seek information about the extent of access to sensitive systems agencies have given USDS employees, who at the agencies authorized such access, and any training USDS employees received. See Proposed Disc. at 3. As the Court has explained, this information goes to irreparable harm because, if USDS employees are not permitted by the Privacy Act to view these systems, plaintiffs argue they are injured. Similarly, the interrogatories to USDS focus on facts relevant to irreparable harm: the structure, chain of command, and sharing policies of USDS go to the question of whether USDS is an agency permitted to detail employees to the three agency defendants.

It is even clearer that the document requests are properly scoped. Each of the seven document requests is for a document defendants’ declarants mentioned when discussing the procedures and policies surrounding USDS employees and operations at defendant agencies. See id. at 5 (each of the seven requests referencing one or more of the three declarations defendants submitted with their opposition to plaintiffs’ second TRO motion). Like the USDS interrogatories, these documents are relevant to the scope of USDS employees’ assignments, their relationship to the defendant agencies at which they’re working, and USDS’s authority to detail them. See id. Plus, defendants acknowledged these documents were relevant to the resolution of plaintiffs’ second TRO motion, and the impending preliminary injunction motion will rest on the same issues the TRO motion did.

Lastly, the Rule 30(b)(6) depositions are properly scoped as well. The Court recognizes that, as defendants point out, the nature of Rule 30(b)(6) depositions make them susceptible to becoming overly broad and freewheeling. See Disc. Opp’n at 14. However, plaintiffs here have put forward three specific topics to which each deposition will be limited. For the agency defendants, the Rule 30(b)(6) topics focus on how, if at all, the agencies’ systems-access procedures changed following USDS’s creation, the role of USDS employees at the agencies, and those employees’ use of sensitive systems. Proposed Disc. at 6. And like the interrogatories, the topics for the Rule 30(b)(6) deposition of USDS focus on USDS’s structure and authority, as well as the role and responsibilities of USDS employees working at defendant agencies. Id. at 7.

While plaintiffs’ proposed discovery is predominately properly scoped, there are two proposals the Court determines go beyond the issues relevant to the impending preliminary injunction motion. The first is plaintiffs’ definition of “Sensitive Systems,” a definition on which much of their proposed discovery relies. See id. at 2–7. Plaintiffs propose to define the term as “any system of records that contains Personally Identifiable Information (PII), Personal Health Information (PHI), trade secrets, or confidential business information.” Id. at 2. However, the Privacy Act—the act on which plaintiffs have largely rested their case, including the harm they allegedly suffered—only protects individual information. See 5 U.S.C. § 552a(a)(4) (defining “record” as “information about an individual that is maintained by an agency”). The Court thus amends plaintiffs’ definition of Sensitive Systems to refer only to “any system of records that contains Personally Identifiable Information (PII) or Personal Health Information (PHI).”

The second overbroad proposal is question 1(f) of plaintiffs’ proposed interrogatories. That question asks for “[a] complete list of the federal agencies to which the [USDS] Employees are or have been detailed since January 20, 2025.” Proposed Disc. at 3. The issues in front of this Court are limited to USDS’s presence at the agencies that are defendants in this case. Which other agencies may be hosting USDS employees is not relevant to the resolution of plaintiffs’ impending motion to preliminarily enjoin USDS, DOL, HHS, and CFPB. The Court will thus eliminate question 1(f).

In sum, with the two alterations mentioned, the Court determines the scope of plaintiffs’ proposed discovery weighs in favor of granting their motion.

D. The Burden on the Defendants to Comply with the Requests

Going hand in hand with whether plaintiffs’ proposed discovery is properly scoped is whether complying with those requests places too high a burden on the defendants. Where the scope of discovery sweeps too broadly, that discovery can unduly burden defendants. See True the Vote, Inc. v. IRS, No. CV 13-734 (RBW), 2014 WL 4347197, at *7–8 (D.D.C. Aug. 7, 2014). As the Court has determined, that’s not the case here. But, as defendants argue, even properly scoped discovery has the potential of being overly burdensome depending how that discovery will occur and how much information the requests seek. See Disc. Opp’n at 14.

Here, there is no such undue burden. Each form of discovery—interrogatories, document requests, and Rule 30(b)(6) depositions—is narrowed in a way that will impose a minimal burden on defendants. Defendants argue that the interrogatories and document requests are unduly burdensome because of the number of subparts and the focus on agency structure, training, and systems usage. Disc. Opp’n at 16. But looking closer at the questions and document requests, one sees that the burden does not stretch that far. Of the seven subparts of the interrogatories directed at defendant agencies (as narrowed by the Court), two ask only for identities of individuals, three ask for only the name and description of training programs, systems, and software, and one asks only for dates. See Proposed Disc. at 3. The remaining subpart extends to the usage of systems by USDS employees. Id. Similarly, of the five subparts of the interrogatories directed at USDS, four ask only for identities of individuals and, at most, those individuals’ responsibilities. Id. at 3–4. Providing this number of names and dates is not so burdensome, especially when one considers that none of this information would require going back farther than January 20, 2025, the date President Trump renamed USDS. See First TRO Order at 2.

As for the document production requests, the Court already explained that the documents plaintiffs seek are limited to documents referenced by three of defendants’ declarants in statements made less than two weeks ago. Proposed Disc. at 5 (requesting documents referred to in Kryger Decl., Decl. of Garey Rice, and Decl. of Adam Martinez). Obtaining these documents should thus not be overly burdensome.

Understandably, defendants argue most strongly against the Rule 30(b)(6) depositions. As they point out, the Court stated in its scheduling order that “the discovery should be primarily—if not exclusively—written discovery.” Scheduling Order at 2; Disc. Opp’n at 14. And the nature of Rule 30(b)(6) depositions, defendants argue, makes the burden too heavy. Disc. Opp’n at 14. But, as stated earlier, the scope of the Rule 30(b)(6) depositions here is not as expansive—and thus the deposition will not require as much preparation and expense—as a typical Rule 30(b)(6) deposition. The Court emphasizes that the four depositions shall be limited only to the topics plaintiffs have identified in their proposed discovery order. See Proposed Disc. at 6–7. Anything beyond those topics is prohibited.

Additionally, given that each deposition shall cover only three topics, the Court thinks the three-and-a-half-hour limit plaintiffs propose is too high. To help ensure the depositions are limited to the proper topics, and to help decrease the burden on defendants, the Court will limit plaintiffs to a total of eight hours for their four depositions. Plaintiffs can allocate those eight hours between USDS and the agency defendants as plaintiffs see fit.

In sum, the Court determines the burden of the expedited discovery plaintiffs seek—taking into consideration the Court’s alterations—is not unbearable. This factor thus weighs in favor of granting plaintiffs’ motion.

E. How Far in Advance of the Typical Discovery Process the Request was Made

Finally, the Court turns to how far in advance of the typical discovery process plaintiffs have requested expedited discovery. Defendants argue that this factor heavily weighs in their favor and point to this Court’s decision in Guttenberg for support. Disc. Opp’n at 8–11. There, the Court explained that the “most important” factor in the Court’s decision to deny the motion for expedited discovery in that case was that there was a pending motion to dismiss, showing that “plaintiffs’ request for expedited discovery c[ame] ‘well in advance of typical discovery.’” Guttenberg, 26 F. Supp. 3d at 99 (quoting Landwehr v. FDIC, 282 F.R.D. 1, 4 (D.D.C. 2010)). The Court explained that permitting expedited discovery when said motion was pending could require defendants “to expend significant resources in responding” to requests even though there was a chance the Court would “then grant defendants’ motion to dismiss,” making the expenditure all for nothing. See id. So, in that case, “reasonableness dictate[d] that the Court consider defendants’ motion to dismiss before requiring . . . discovery.” Id.

The Court acknowledges that Guttenberg and other cases have emphasized that a pending motion to dismiss cuts against granting a plaintiff’s motion for expedited discovery. See Landwehr, 282 F.R.D. at 4; True the Vote, 2014 WL 4347197, at *8. The Court also acknowledges that, just as there is an impending motion for preliminary injunction in this case, there is an impending motion to dismiss. See Scheduling Order at 3 (ordering defendants file their motion to dismiss by not later than February 28, 2025). Defendants indicate that they intend to seek dismissal on the basis of “Article III standing, APA reviewability, and Privacy Act preclusion,” issues which the defendants contend “do not require any factual development” and thus permitting expedited discovery could result in the situation Guttenberg warned against: ultimately unnecessary expensive and burdensome discovery. See Disc. Opp’n at 9–11.

Despite those facts, however, the Court concludes that this factor does not weigh strongly in defendants’ favor. Just as this is not a run-of-the-mill APA case, this is not the standard civil case in which a motion to dismiss is filed before any legal or factual development. The briefing on plaintiffs’ two TROs has produced a record, albeit minimal, and has revealed the parties’ legal arguments. So this is not a case where the motion to dismiss will contain dispositive arguments the Court has yet to contemplate. As a result, while it’s a close question, the Court cannot say reasonableness demands prohibiting expedited discovery until the resolution of defendants’ impending motion to dismiss.6

* * *

Of the five reasonableness factors, the last is undoubtably the closest. But the other four weigh in favor of granting plaintiffs’ motion in part. The Court thus determines that to whatever extent the final factor may slightly favor defendants, the other four factors outweigh it. Hence, the Court concludes that plaintiffs are entitled to the limited expedited discovery they request, subject to the further alterations and limitation the Court has detailed.

CONCLUSION

For the reasons explained above, it is hereby ORDERED that [44] plaintiffs’ motion for expedited discovery is GRANTED in part, subject to the alterations the Court has explained in this Order. It is further ORDERED that the expedited discovery shall take place in accordance with the schedule the Court set forward in [43] the Court’s scheduling order.

SO ORDERED.

/s/
JOHN D. BATES
United States District Judge
Dated: February 27, 2025
 
_______________

Notes:

1 The Court uses USDS to refer to both United States DOGE and the United States DOGE Service Temporary Organization.

2 In relevant part, Rule 30(b)(6) states that In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Fed. R. Civ. P. 30(b)(6).

3 See Decl. of Adam Ramada [ECF No. 16-1]; Decl. of Ricky J. Kryger [ECF No. 31-1]; Decl. of Garey Rice [ECF No. 31-2]; Decl. of Adam Martinez [ECF No. 31-3].

4 Defendants also argue that this factor weighs against granting plaintiffs’ motion because plaintiffs failed to seek expedited “discovery before either of their two prior motions for emergency relief.” Disc. Opp’n at 11. It’s true that “demonstrated lack of urgency in seeking expedited discovery” weighs against granting a motion for expedited discovery. See Guttenberg, 26 F. Supp. 3d at 98. But the Court cannot say that plaintiffs who do not seek discovery to support a TRO show a lack of urgency. TROs are “the pinnacle of emergency relief meant to preserve the status quo for a limited period of time until the Court has an opportunity to pass on the merits of the demand for a preliminary injunction.” M.G.U. v. Nielson, 316 F. Supp. 3d 518, 520 (D.D.C. 2018). It’s hard to imagine even expedited discovery could be completed within a TRO’s typical lifespan. See Fed. R. Civ. P. 65(b)(2) (explaining that a TRO expires after 14 days unless a court orders otherwise). Not to mention, defendants’ argument is self-defeating. If, as defendants argue, it is now too early for plaintiffs to be seeking discovery, see Disc. Opp’n at 8–11, surely it was too early for plaintiffs to seek discovery for their TROs. [!]

5 Defendants argue that plaintiffs’ proposed discovery extends beyond what would in the administrative record, and thus they seek to limit any discovery the Court allows to topics and documents defendants believe constitute an administrative record. See Disc. Opp’n at 17–18, 20–21. But the Court determines that the information plaintiffs seek regarding the scope of USDS employees’ access to sensitive systems and the authority and structure of USDS is necessary for determining the question the contours of defendant agencies’ policies and actions—a question for which discovery can be appropriate in an APA case. See Venetian Casino Resort, 409 F.3d at 360; Marshall Cnty. Health Care Auth., 988 F.2d at 1227.

6 The Court also notes that defendants have thus far not relied solely on legal arguments, but also on facts they put in the record. See supra, n.3. And this evidence goes to the very issues they seek to address in their motion to dismiss. For example, the declarations submitted with defendants’ opposition to plaintiffs’ second TRO motion indicate how many USDS employees, if any, are at each agency, the scope of their work, the procedures, policies, and agreements surrounding their purported detail, and their chain of command. See generally, e.g., Rice Decl. As noted, these facts go to plaintiffs’ harm—implicating not only irreparable harm, but Article III standing and final agency action. In other words, the evidence defendants have thus far put in the record goes to the very issues on which plaintiffs seek discovery. Indeed, defendants argue that if the Court permits plaintiffs to conduct expedited discovery, the Court should limit the discovery to jurisdictional discovery. Disc. Opp’n at 19–20. This seems to recognize that the issues defendants contend are dispositive without factual development do rest in part on factual findings. Lastly, this all indicates that, while defendants intend to make legal arguments in their motion to dismiss, there is a possibility that defendants’ motion to dismiss could rest on facts outside the pleadings, making discovery both beneficial and necessary. See Fed. R. Civ. P. 12(d).

[admin]

Elon Musk Cold Open w/Mike Myers
by Saturday Night Live
Mar 1, 2025 #SNL50 #ShaneGillis #TateMcRae

Elon Musk (Mike Myers) interrupts a heated meeting with Donald Trump (James Austin Johnson), JD Vance (Bowen Yang), Marco Rubio (Marcello Hernández) and Ukraine President Zelenskyy (Mikey Day).



Transcript

Yesterday, President Trump hosted Ukrainian President
Zelensky at the white House. And it went really, really well.
Everyone who watched felt at ease and thought
the world is now a safer place.
Here now is a replay of their historic press conference.
Yes, hello. Hello everyone.
It is I, president and CEO of Gaza Hotel
and Casino, Donald Trump.
And I'd like to welcome President Zelensky here
to this incredible trap.
It's going to be a big, beautiful trap.
And we're going to attack him very soon for no reason.
Right J.D.?

Watch out. Cause this kitty's got claws.
Boo.

Very Much. And Marco Rubio is here, too.
Little Marco.
Little Marco.
Are you excited to attack our European ally?

No English.

De nada.

Before we get started, I'd like to thank President Zelensky for
dressing Like Casual Star Trek.
We love Star Trek because there's no DEI.
The white guy was the leader and he bossed around Spock,
who I believe was Guatemalan.
We love that President Zelensky. You want to say a few words?
Maybe tell Mr. Putin how much you love him and that you're
sorry you invaded Russia.
Maybe you offer him one night with your wife.

Mr. President, with all due respect.

Excuse me.
I'm sorry. What?
I'm sorry.
I have to jump in here because that's how we planned this.
What happened to "Thank you."
Okay.
Remember. "Thank you."
You haven't said "thank you" to us once in the past 15 seconds
I've been yelling at you.

I've said "thank you."

You didn't say it now; you didn't say it now.
When you walked in here, you didn't say "thank you."
You didn't say anything about us being handsome.
"You are my handsome little boys." You didn't ask once.

Look. He's right. And we're very handsome.
Okay. Our Ties are matching and they're growing, frankly, by the minute.
We don't even have to dust in here anymore.
The Ties sweep away the dust, and yet you don't compliment the Ties..
She does say thank you.
You don't tell us how hot we look.
Okay, you don't say, if I was gay, I'd be all over you, too.
Okay. And we're supposed to help you.

But if I could just say.

You have been talking this entire time.
I'm sorry.
Does the sign outside say Ukraine house?
No, it says America House.

Oh. Oh, man. Look at Rubio over there.
Fully Dissociating.
He looks like Homer Simpson disappearing into that hedge.
To quote the late Good Tom Petty.
He's Freefalling.

I'm sorry if I.

You know, you say you want to end this war, but frankly,
you don't have the Cards Okay.
I have the Cards, all Right? I Have Skip.
I have draw for. I have Reverse.
I have get out of jail free.
The Supreme Court gave me that one.
I have Pikachu and Charmander and Charizard.
All I'm missing is a Charmeleon.
But without us, you don't have any of the cards.
Okay? You got no cards.
You're playing poker, and Putin's playing
Magic the Gathering.
And the Russians have been treated very badly with respect
to the War and also, frankly Anora, right? Anora was misled, and she fell in love.
And now she might even lose to Brutalist.
It's disgusting.

You know, maybe you should come visit Ukraine.

Hey, don't you even dare.
I've been to Ukraine on Google Maps.
It's a mess.
You think you're getting any money from us
after your little outburst today?
To quote my personal hero, Willy Wonka.
"You broke the rules. You get nothing. You lose.
Good day, sir."

And you know what? You're also, you're not even wearing a suit. It's disrespectful.
Who shows up to the White House in a t-shirt
and jeans like a garbage person?
And.
Oh, God. Oh!
God. Oh, God.

Hi, guys. Hi, guys.
Hi, guys.

Elon, we love your outfit. Very official and respectful.
And I love when he gets that chainsaw right next to my head.
Thanks.

Donald, what are you doing in my office?
You know I'm the president now, right?
I'm kidding. I'm kidding.
Okay.
Maybe not. Maybe not.
Awesome. Awesome, awesome.
You got to make a joke. You know you got Really.
Legalize Comedy! Legalize Comedy!
Come on, legalize it!

I'm so comfortable with all of that.
I really enjoy everything you're doing
with Doge. Elon.

Well, they're saying I'm firing people with no cause.
But I do have cause. It's cause I feel like it.
I've got Blonde. Glitch.
Better, better.

They are Doing Mass Firings In The Government.
We Love mass firings.
Because you don't have to know what any of their names are
or what exactly they do.

I mean, we're not going to get it perfect, you know?
But we are firing the nonessential employees,
like air traffic controllers.
Yes.

Yes. And Sure.
Some of the planes are going to land upside down, but then
the luggage falls right into your lap and you're ready to go.
It's official.
And Elon's got this incredible team of professionals, like a 19-year
old who's known as Big Balls.

Yo reporting for duty, sir.

And Big Balls, you've been doing some awesome Doge stuff, right Big Balls?

Oh for sure. This week I fired a black general and a woman Admiral.
It was awesome. So awesome.

It's awesome. It's awesome.

And in addition to DOGE, we've started another initiative
called the Department of Undoing Child Health Care and Education.
Or "Douche". Yeah.
Douche. It's going to be epic.

Douche is going to really clean everything out.
Companies back, companies back. Come on.
Come on. Yeah.
Well, I think that concludes a pretty much
perfect press conference.
We humiliated this guy, And J.D finally got to audition for Real Housewives of Potomac.

I'm willing to throw a wine glass at Anyone.

And To Cap Off An Amazing Week, we're gonna finally release the Epstein files.
Yes, America is going to see all the names from A to S. No. T. So Zelensky,
you want to say it with me?

I guess I have to.
Live from New York. It's Saturday Night live.

[admin]

The Administration That Cried Wolf: It's always an emergency with these guys
by Harry Litman
The Talking Feds
Feb 28, 2025
https://substack.com/home/post/p-158116336



For the second time in its few weeks in office, the Trump administration has petitioned the Supreme Court for emergency review. This latest effort involves the USAID case, which challenges the executive order Trump issued last month instructing agencies not to disburse foreign aid funds that Congress had already approved. Trump sought to countermand Congress on the principle that the distribution of the funds was not "fully aligned with the foreign policy of the president.”

A group of plaintiffs designated to receive the USAID funds sued, arguing that the order was arbitrary and capricious in violation of the Administrative Procedure Act. On February 13, a district court suspended the order and instructed the government to resume payments.

Nearly two weeks then passed, during which the government, as best we can tell, did… not much of anything. At a hearing on Tuesday, an exasperated judge heard plaintiffs explain that the government apparently hadn’t taken any action to comply with the court’s order, and many of their clients were in desperate need of the suspended payments.

The judge sharply questioned the government attorney, who danced around and obfuscated as best he could but ultimately told the court only that the government was preparing to comply with the two-week-old order and would explain further at an upcoming status conference.

The court then pressed the government attorney: “I guess I’m not sure why I can’t get a straight answer from you on this. Are you aware of an unfreezing of the disbursement of funds?” Pushed to the wall, the government attorney could only offer, “I can’t really go beyond what I’ve said.” Twelve days after the court’s order, the government still couldn’t provide any facts about compliance.

That’s a very rough spot for an attorney, and it’s emblematic of the unenviable position government attorneys now find themselves in—trying to defend lawless actions by the new administration while apparently not even being in the loop on decision-making, which seems to consist of Elon Musk making it up as he goes along.

But litigants generally don’t stiff-arm courts this way—especially government lawyers, whom the courts hold to a higher standard of candor and responsiveness.

So the judge lowered the boom. He gave the government about 36 hours to do what it should have done many days earlier—namely, pay the nearly $2 billion in foreign aid for work that had already been completed as of February 13, when his order was issued.

At that point, the administration switched to emergency mode. It sought immediate relief in the D.C. Court of Appeals, which denied the request. Then, just hours before it was due to comply with the district court’s latest order, it parachuted into the U.S. Supreme Court.

The administration’s pitch? That it couldn't possibly comply with the district court order, which it assailed as “arbitrary.” Paying what it owes, after having frozen all assistance, supposedly entails time and technical complexities beyond the ability of mere mortals—or non-executive branch officials—to understand.

Chief Justice Roberts, who oversees the D.C. Circuit, entered an administrative stay and ordered briefing from the other side for Friday afternoon. That was taken as a win for the administration, but in reality, it was merely a brief pause to allow the Court time for written argument and a few hours of reflection.

The Court will still hear the administration’s claim on an emergency, expedited basis. This has become a favored strategy of the Trump administration—it happened over 40 times in Trump’s first tenure, compared to just eight times total in the previous six years. It’s very much in character for the administration, which thrives on hyperbole and manufactured chaos, and it’s a strategy that both favors the executive and distorts the normal pattern of judicial review.

It can function as a sort of soft version of the loggerheads scenario that we have to keep in mind with this administration—a flat-out refusal to comply with judicial orders that would trigger an unprecedented constitutional crisis.

Consider the USAID case. If the administration were a recalcitrant schoolchild or employee offering lame excuses for failing to comply, that’s when a teacher or boss might double down. But it’s far more difficult to hold a parallel branch of government to account.

For one, it risks putting the court in the untenable position of issuing an order that the administration fails to honor. An emergency application from the government is a little like a game of chicken, and the Court is more likely to blink. In emergency applications ruled on during Trump’s first term, the Court granted some form of relief to the government over 75% of the time.

In the USAID case as well, it seems unlikely that this Supreme Court will simply deny the government’s request outright—though that leaves a vast range of possible actions, from granting the government a little more slack to taking the case, ordering full briefing, and issuing a ruling on the cancellation of the foreign aid. Such a ruling would be monumental, no matter how it comes out.

The immediate point, though, is that the administration’s penchant for seeking emergency relief—especially in the Supreme Court—leads to distortions in the process and poorer decision-making. In a dissent from the Court’s grant of a stay last year, Justice Jackson noted the “serious dangers of making consequential decisions ‘on a short fuse without benefit of full briefing and oral argument.’”

In part because decisions on an emergency basis can feel slapdash, this practice also fuels public cynicism about the courts, which are already at crisis levels. A Trump-appointed judge in the Ninth Circuit, Danielle Forrest, made this point in a case denying the administration’s emergency motion for a stay of a district court order that enjoined Trump’s executive order on birthright citizenship. “Judges are charged to reach their decisions apart from ideology or political preference,” Forrest wrote. “When we decide issues of significant public importance and political controversy hours after we finish reading the final brief, we should not be surprised if the public questions whether we are politicians in disguise.”

The Ninth Circuit’s approach in the birthright citizenship case was to insist on a rigorous application of the standard for an emergency, including a showing that, absent relief, there will be serious harm that is both immediate and irreparable. The government’s emergency argument was particularly weak—its only claim was that the district court order “stymied the implementation of an executive branch policy.” But that, of course, happens every time a district court issues an injunction against an executive order.

The Supreme Court would be doing itself—and all lower federal courts—a favor by insisting on similar rigor and concreteness for emergency relief motions. But in the crucible of a proffered claim of emergency, it’s likely, as a practical matter, that the courts will lean the government’s way. Don’t expect the administration to stop crying wolf, or the courts to stop jumping in response.

[admin]

Trump WAKES UP to MORNING SMACKDOWN from Supreme Court
by Michael Popok
MeidasTouch
Mar 5, 2025 Legal AF Podcast

In a “stunning” set back to the Trump Administration, in a 5-4 decision led by Chief Justice Roberts and Amy Coney Barrett, the Supreme Court has ordered the release of $2 billion dollars in funds for humanitarian aid, as Justice Alito along with the rest of the court, issues a scathing dissent declaring that he is “stunned,” and criticizing the majority of the court and the federal judge who issued the order. Michael Popok explains what this means for future funding cases before the Supreme Court and how the televised pat on the back Trump gave Chief Justice Roberts may have backfired.



Transcript

we got breaking news and it is stunning
are you sitting down that word's going
to be used a lot during this hot take
the United States Supreme Court has
ruled against the Trump Administration
on a major issue about the Trump
Administration cutting off the fuel
supply to $2 billion worth of funding
for humanitarian Aid through US Aid and
now the United States Supreme Court in a
five to4 decision led by Chief Justice
Roberts apparently has decided against
the Trump Administration requiring judge
to go back through the record and set an
appropriate set of deadlines for the
payments to be made but those payment
spigots must be turned back on according
to the United States Supreme Court even
while the larger appeal may be going on
at a later date this is a tremendous win
for democracy and for the rule of law
and a blow to the four members of the
Supreme Court led by judge Alo who said
that they were quote unquote stunned by
the decision of a the majority to side
with a rogue federal judge against the
Trump Administration and against
sovereign immunity I'm Michael popok I'm
going to break it all down for you right
here on the mest touch network and on
legal AF I've got in my hands the
Supreme Court decision let me tell you
how we got here then I'm going to read
from the order we got here because judge
ali uh in in DC a Biden appointee after
hearing argument and briefing about the
uh about the Department of State and
brought by a a set of public interest
groups led by AIDS vaccine advocacy
Coalition because Donald Trump through
Elon Musk turned off the fuel supply and
stopped funding overnight for
humanitarian groups most of them
us-based humanitarian groups where us
consumer paychecks are behind and works
and workers and jobs are behind each one
of those dollars he turned it off
without any notice whatsoever didn't
even give those people time to
transition to help people who were dying
around the world the reason that you
that us Aid existed it's and and the
reason it's an arm of the of the state
department it's it's part it used to be
part of our diplomacy it's the ways that
we keep people looking to the West
looking to the United States keep them
out of the clutches of the Russians and
the Chinese help build their roads their
water uh purification plants get them
food make sure they don't die from
hunger and AIDS make sure they're
literate and they can thank the United
States brand of democracy for it but not
under the Trump Administration it's just
a dollar let's get rid of it who cares
who dies well judge Ali cared and he
brought everybody together and said I'm
going to order on a temporary
restraining order that this money get
paid it became what we call in the
business a mandatory injunction a
mandatory restraining order then they
went to a series of hearings about the
fact that the Trump administration had
done nothing to comply with a temporary
restraining order and so judge Ali got
annoyed and there was a motion for
contempt and judge Ali finally drew the
Line in the Sand and said here here's
I'll make it simple for you you need to
turn on the money and pay those
contractors the $2 billion by
$159 p.m. 1 minute before stroke of
midnight 3 days ago well the Trump
Administration didn't like that so it
ran to the United States Supreme Court
and I did some reporting on it already
and I said that the Chief Justice
Roberts had stepped in and done an
administrative stay for a short amount
of time to allow for full briefing and
had set last Friday as a uh period in
which the uh other side to this us Aid
could file their opposition to the
application in other words he it was
really a time buyer by Chief Justice
Roberts not on the merits well the AIDS
Coalition filed their brief and they
walked through so convincingly that five
members of the United States Supreme
Court in this new decision have ruled in
their favor and have told judge Ali get
back to figuring out how and when to
turn on the spigots of that Monday on
that money for the $2 billion because we
as the United States Supreme Court
majority we're not going to stop it let
me let me explain how we got here then
I'm going to read to you from Judge Alo
Justice Alo joined by who else the
Kavanaugh uh Gorsuch Alo and Thomas all
joined together behind Justice Alo who
who who wrote literally I am stunned by
the majority decision here and the fact
that they have violated the supremacy
clause because they're allowing this
money to be paid out because of a a
rogue federal trial judge yeah I don't
think so let's let's go through the um
the ruling of the majority which is uh
again Roberts joining with Amy Coney
Barrett which we have said is the Swing
Vote to watch this term and in the
future joining with katangi brown
Jackson uh uh Kagan and um and so mayor
here's here's the ruling on February
13th the United States district court
for the District of Columbia entered a
temporary restraining order that's Judge
Ali in ing the government from enforcing
directives pausing dispersements of
foreign development assistance funds um
and then from there the CH after the uh
federal court on February 25th the
district court ordered the government to
issue payments for a portion of the
pause dispersements two billion there
was a lot more money paused it was uh
tens of billions of dollars but two
billion needed to go out immediately to
stop the harm and
suffering those owed for work already
completed before the issu to The
District Court's trro in other words the
judge the um uh the judge was just
ordering $2 billion worth of payments be
made for work already done not for
future work but it still amounted to $2
billion and was
important um The District Court gave a
deadline of 11:59 p.m. on February 26
sever several hours before that deadline
so right before the February 26 deadline
the government filed this application to
vacate judge Ali's February 25th order
and requested an immediate
administrative stay that is the lowest
level of stay any federal court or
appell Court can grant it usually last
for a very short amount of time could be
hours could be days could be weeks
doesn't usually go a month and it was
that short amount of time that Justice
Roberts as the judge over all things DC
chief justice Roberts made that
decision now after the full briefing
because the judge asked to have the
brief uh opposing the application filed
by Friday which it was by us Aid the
application is denied
meaning we are not going to interfere
with judge Ali's decision to force the
payment of the $2 billion given that the
deadline in the challenged order has now
passed I mean they recognizing the time
time advances right so we've already
lost the deadline and in light of the
ongoing preliminary injunction
proceedings in other words you're going
to be doing a bigger proceeding about
preliminary injunction the district
court this is Direction now to the
district distri Court Judge Ali should
clarify what obligations the government
must fulfill to ensure compliance with
the temporary restraining order with due
regard for the feasibility of any
compliance deadlines let me unpack that
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this episode it's telling the district
judge look you're deadline passed okay
go back now to the well you've got a
preliminary injunction which is the next
level up from temporary restraining
order you got a whole briefing and
hearing there recalibrate and reset your
deadlines with due regard to that
briefing and give the government enough
time to meet your deadline and we will
support it at least five of us will
support it but if you give like a too
fast deadline requiring too much too
soon you may not have the five votes
that's the subtle hint there from
Justice Roberts uh or to the the
majority to the uh District Court um the
order here entered by the chief justice
that was the administrative stay is
vacated now here's the here's the big
news is how Alo in a scorching descent
took on his his majority just turned in
fire on Roberts and the rest and g con
Barrett here's what he had to say joined
by a Gorsuch and kavid and Thomas
Justice Alo dissenting does a single
District Court Judge who likely lacks
jurisdiction have the unchecked power to
compel the government of the United
States to pay out and probably lose
forever $2 billion of taxpayer dollars
the answer is that question is an
emphatic no but a majority of this court
apparently thinks otherwise I am stunned
I'm stunned that you're stunned because
I think your analysis is all is all full
of water is all washed up his argument U
which I'll read from him in a minute is
that the decision to pay and to fund
using taxpayer dollars is reserved to
the executive branch with sovereign
immunity and that you can't order the
executive branch to make payments in a
mandatory injunction without violating
sovereign immunity and nobody else sees
it that way um there's a violation a
constitutional violation of the spending
clause impoundment which ELO doesn't
even talk about the violation of the
separation of powers because Congress
already funded this money this money was
already contracted by and was already
obligated to be paid by the federal
government so it gets out from under
sovereign immunity issues we have to
look at impoundment in the ability and
the separation of powers issues which of
course ELO um ignores completely here's
the other part um Alo says even if the
majority is unwilling this is on page
four is unwilling to vacate the District
Court's order it should at least stay
The District Court's enforcement order
until the government has time to appeal
has time to issue um uh a rid of sersari
right he then says we got to look to
sovereign immunity again I think that is
he completely ignores the impoundment
aspect of
it and then we have this kind of summary
on the page 8 over to n today this is AO
but for the four in minority the court
makes a most unfortunate misstep that
rewards an act an act of judicial who
uis that's Judge Ali and imposes a $2
billion penalty on American taxpayers
the district court has made plain its
frustration with the government and
respondents raised serious concerns
about about non-payment for completed
work um but the relief ordered is quite
simply too extreme a response a federal
court has many tools to address a
party's supposed nonfeasance self andr
and grandis of its jurisdiction is not
one of them he's really going after Ali
here he's saying you're taking on
jurisdictional power that you don't have
son and we're the Supreme Court and
we're taking you out to the Woodshed
unfortunately to take somebody out to
the Woodshed at the federal court level
you got to have five people to do it and
he only had four I would chart a
different path than the court does today
so I must respectfully descent there's
nothing really that respectful about The
Descent but that's how that came down so
what does it mean it means judge Ali is
a lifetime appointed judge he's going to
continue to make rulings like this the
majority was fine in principle with what
judge ji his analysis his thought
process his his support for all of this
is fine they just want him to
recalibrate the timing and the rest
because they see that money that the
judge already took a major step he
already said you know there's $30
billion of USA I'm only talking about
two billion that relates to Services
already rendered supplies already
generated money that has to go to them
there's no argument that there's fraud
in any of that there's no evidence that
there's any fraud there's no evidence in
the record that there's any fraud so of
course the the the judge was right you
know the judge said I'm not going to
administer your program for you if you
want to go on a Case by case basis and
figure out whether there's fraud and
determin not to make payments that's up
to you that's an executive branch
function but you just stopping the
funding and including for work already
completed on contracts you know that
seems arbitrary and capricious under the
ARB under the administrative procedures
act and an illegal impoundment under
separation a separation of powers so we
know there's at least this is now the
divide we're going to see between you
know going
forward watch Amy con Barrett we've said
it before here on Midas Touch Network
legal AF I've said it on my new show on
precedent following the Supreme Court
watch Amy Coney Barrett she is she might
be right right of Center but she is the
Swing Vote when she votes with the
majority that's the decision when she
votes you know for something that's the
decision chief justice Roberts kind of
goes back and forth listen we just saw
chief justice Roberts basically get a
fist bump from Donald Trump joint during
the joint the joint address the Congress
last night won't forget you good job
whatever I mean but that didn't help I
think the
more you make Trump you make Roberts
look like your puppet the more he's
going to rebel against that and he's
going to end up issuing orders like this
one I'm going to continue to follow it
all.

[admin]

Second federal judge extends block stopping Trump from freezing grants and loans
by PBS News
Politics Mar 6, 2025 12:37 PM EST

BOSTON (AP) — A second federal judge on Thursday extended a block barring the Trump administration from freezing grants and loans potentially totaling trillions of dollars.

U.S. District Court Judge John McConnell in Rhode Island granted the preliminary injunction in the lawsuit filed by nearly two dozen Democratic states after a Trump administration plan for a sweeping pause on federal spending stirred up a wave of confusion and anxiety across the United States.

In his ruling, McConnell said the executive branch was trying to put itself above Congress and by doing so “undermines the distinct constitutional roles of each branch of our government.”

“The Executive has not pointed to any constitutional or statutory authority that would allow them to impose this type of categorical freeze,” McConnell wrote. “The Court is not limiting the Executive’s discretion or micromanaging the administration of federal funds. Rather, consistent with the Constitution, statutes, and caselaw, the Court is simply holding that the Executive’s discretion to impose its own policy preferences on appropriated funds can be exercised only if it is authorized by the congressionally approved appropriations statutes.”

The states say a litany of programs are still waiting for federal funds or some clarity on whether the money is going to be delivered. McConnell also said the states had demonstrated standing in this case.

“The States have introduced dozens of uncontested declarations illustrating the effects of the indiscriminate and unpredictable freezing of federal funds, which implicate nearly all aspects of the States’ governmental operations and inhibit their ability to administer vital services to their residents,” he wrote. “These declarations reflect at least one particularized, concrete, and imminent harm that flows from the federal funding pause — a significant, indefinite loss of obligated federal funding.”

Rhode Island Attorney General Peter Neronha said President Donald Trump, a Republican, has “attempted to subvert the rule of law in favor of illegal executive power” through his executive orders.

“We don’t have kings in this country, and today’s preliminary injunction reaffirms that,” Neronha, a Democrat, said in a statement.

“Americans pay taxes to the federal government knowing that the Congress will allocate their dollars towards agencies and programs that will support them in their daily lives,” he continued. “The President’s federal funding freeze would be laughable if it wasn’t so utterly destructive. It flies in the face of everything we know to be true about our government, namely our separation of powers, by attempting to render the Congress as irrelevant.”

Among the funding impacted is billions of dollars that would fund rooftop solar power in low-income neighborhoods, subsidizes low- and moderate-income households’ purchase and installation of electric heat pump water heaters and grants to reduce greenhouse gas emissions and other harmful pollutants.

“The Trump administration’s illegal funding freeze jeopardized law enforcement funding, essential health care and childcare services, and other critical programs that millions of Americans rely on,” New York Attorney General Letitia James, a Democrat, said in a statement.

The White House previously said the temporary funding halt would ensure that the payments complied with Trump’s agenda, which includes increasing fossil fuel production, removing protections for transgender people and ending diversity, equity and inclusion efforts.

The Republican administration has since rescinded a memo outlining the funding freeze. Still, many state government, universities and nonprofits have argued federal agencies continue to block funding for a range of programs.

U.S. District Judge Loren AliKhan in Washington has also extended an order blocking the funding freeze. AliKhan granted a preliminary injunction requested by groups representing thousands of nonprofits and small businesses.

[admin]

Ed Martin
@EagleEdMartin

Dear @elon, Please see this important letter. We will not tolerate threats against DOGE workers or law-breaking by the disgruntled. All the best. Ed Martin

U.S. Department of Justice

Edward R. Martin, Jr.
United States Attorney

District of Columbia

Patrick Henry Building
601 D Street, N.W.
Washington, D.C. 20530

February 3, 2025

Mr. Elon Musk
DOGE
United States Government
SENT VIA X: @elonmusk

Dear Elon,

It was good to work with the DOGE team this weekend. We must keep all our government employees safe and we must protect the American people's property. Anyone imperiling others violating our laws.[!!!]

I recognize that some of the staff at DOGE has been targeted publicly. At this time, I ask that you utilize me and my staff to assist in protecting the DOGE work and the DOGE workers. Any threats, confrontations, or other actions in any way that impact their work may break numerous laws.

Let me assure you of this: we will pursue any and all legal action against anyone who impedes your work or threatens your people. We will not act like the previous administration who looked the other way as the Antifa and BLM rioters as well as thugs with guns trashed our capital city. We will protect DOGE and other workers no matter what.

One last warning for you: late last week, we indicted an economist who worked at the Fed for economic espionage for the Communist Chinese. Please be very aware that there are those who are acting against our American people in every way. Refer to us any questionable conduct or details that you find or notice.

Please keep in touch.

All the best,

Sincerely,

Edward R Martin, Jr.
United States Attorney

9:46 AM · Feb 3, 2025

*************************

United States Senate
Committee on the Judiciary
Washington, DC 20510-6275

March 6, 2025

Office of Disciplinary Counsel
District of Columbia Court of Appeals
515 5th Street NW
Building A, Suite 117
Washington, DC 20001

Re: Request for Disciplinary Investigation of Edward Robert Martin, Jr.

To the Disciplinary Counsel:

We write to express our grave concern about actions taken by Edward Robert Martin, Jr. that may constitute professional misconduct under the D.C. Rules of Professional Conduct. Since his appointment as Interim U.S. Attorney for the District of Columbia on January 20, 2025, Mr. Martin has abused his position in several ways, including dismissing charges against his own client and using the threat of prosecution to intimidate government employees and chill the speech of private citizens. Due to the serious nature of this misconduct, we request that the Office of Disciplinary Counsel open an investigation to determine whether Mr. Martin, who is a member of the D.C. Bar, violated applicable D.C. Rules of Professional Conduct and should be subject to disciplinary action.

While in private practice, Mr. Martin appeared as defense counsel in cases related to the January 6, 2021 attack on the U.S. Capitol.1 On January 21, 2025, Mr. Martin personally submitted a motion to dismiss the eight felony counts and two misdemeanors against Joseph Padilla, who had already been convicted and sentenced for these charges.2 While in private practice, Mr. Martin represented Mr. Padilla in this very matter, and Mr. Martin sought this dismissal while still representing Mr. Padilla.3 By not recusing himself from this matter, Mr. Martin created an impermissible conflict of interest and appearance of impropriety by using his new government office to favor his client, whom he was defending from the very charges he sought to dismiss.

Similarly, Mr. Martin appeared as defense counsel for January 6 defendant William Chrestman, a member of the Proud Boys’ Kansas City chapter.4 Mr. Chrestman was sentenced to four and a half years imprisonment after pleading guilty to one count each of obstruction of an official proceeding and threatening a federal officer.5 Mr. Martin only moved to withdraw from his representation of Mr. Chrestman on February 4, 2025.6 This withdrawal occurred after Mr. Martin initiated Project 1512, an internal review of the use of 18 U.S.C. §1512 obstruction charges by the U.S. Attorney’s Office for the District of Columbia in January 6 cases.7 By not removing himself from the Chrestman matter in a timely fashion, Mr. Martin created an appearance of impropriety.

There is also evidence indicating that Mr. Martin, since his appointment as Interim U.S. Attorney, has communicated directly with January 6 defendants who were not his clients. William Pope was charged with one felony and four misdemeanors for his actions on January 6.8 On January 28, 2025, Mr. Pope filed a post-dismissal notice to the court and motion to produce casefiles which refers to ongoing discussions with Mr. Martin: “I have asked the new U.S. Attorney if the government is opposed to me keeping these files with my case notes.…and I have been told the government no longer considers these specific items sensitive for me.”9 In a later filing, Mr. Pope asked the court to “direct Mr. Martin to file a statement on whether or not he allowed me to keep all discovery files that are intertwined with my case notes.”10 If he communicated directly with Mr. Pope about his case, Mr. Martin created the appearance of impropriety because he may be called as a witness for the defendant in a matter involving the office he currently leads.

The D.C. Bar defines misconduct as “[a]cts or omissions by an attorney…which violate the attorney’s oath of office or the rules or code of professional conduct currently in effect.”11 Mr. Martin’s apparent misconduct here seems to violate several rules. Rule 1.7(b)(4) prohibits representing a client with respect to a matter if “[t]he lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party….”12 Under this rule, Mr. Martin cannot effectively represent the United States in taking any investigative or prosecutorial steps against Mr. Padilla, including steps favorable to Mr. Padilla, in the same matter in which he defended and still represented Mr. Padilla. Doing so also violates Rule 3.8(a)’s prohibition on prosecutors in criminal cases “exercising discretion to…improperly favor…any person.”13 Mr. Martin’s misconduct also implicates Rule 8.4(d)’s prohibition of “conduct that seriously interferes with the administration of justice,” by creating an appearance of impropriety regarding the circumstances behind the dismissal of the charges against his client, Mr. Padilla. Mr. Martin’s representation of Mr. Padilla and Mr. Chrestman, both of whom were charged with obstruction of Congress, creates an appearance of impropriety in any review or prosecutorial steps relating to the U.S. Attorney’s Office for the District of Columbia’s handling of obstruction charges against other January 6 defendants. Further, Mr. Martin’s conduct as it relates to Mr. Pope’s ongoing matter may implicate Rule 3.7, which prohibits an attorney’s involvement where they are “likely to be a necessary witness.”14 Other Rules may be similarly implicated.

Since assuming the duties of Interim U.S. Attorney for the District of Columbia, Mr. Martin has also engaged in additional, repeated conduct that appears to violate Rule 8.4(d), as well as Rule 3.8’s special responsibilities for prosecutors. Specifically, Mr. Martin has made numerous extrajudicial statements that threaten prosecution with the apparent intent of intimidating government employees and chilling the speech of private citizens, including:

• A February 3 tweet and letter to Elon Musk threatening that “we will pursue any and all legal action against anyone who impedes your work or threatens your people.”15
• A February 7 tweet and letter to Elon Musk threatening that “if people are discovered to have broken the law or even acted simply unethically, we will investigate them and we will chase them to the end of the Earth to hold them accountable.”16
• A February 14 tweet threatening former Special Counsel Jack Smith and his legal representation to “[s]ave your receipts, Smith and Covington. We’ll be in touch soon.”17.
• The February 19, 2025 announcement of “Operation Whirlwind,” a new initiative to investigate and prosecute alleged threats to government officials, which included sending letters of inquiry to two Democratic Members of Congress regarding statements criticizing Elon Musk and Supreme Court justices.18

Mr. Martin’s conduct not only speaks to his fitness as a lawyer; his activities are part of a broader course of conduct by President Trump and his allies to undermine the traditional independence of Department of Justice investigations and prosecutions and the rule of law.19 When a government lawyer, particularly one entrusted with a leadership role in the nation’s foremost law enforcement agency, commits serious violations of professional conduct, it undermines the integrity of our justice system and erodes public confidence in it. Public confidence would be further eroded if such serious misconduct is met with no consequences. Therefore, we submit this letter of complaint to respectfully request that the Office of the Disciplinary Counsel initiate an investigation and take appropriate disciplinary proceedings pursuant to Rule XI of the Rules Governing the District of Columbia Bar.

We appreciate your prompt attention to this sensitive matter. The Committee is available for further consultation as needed.

Sincerely,

Richard J. Durbin
United States Senator

Richard Blumenthal
United States Senator

Mazie K. Hirono
United States Senator

Sheldon Whitehouse
United States Senator

Alex Padilla
United States Senator

Adam B. Schiff
United States Senator

Christopher A. Coons
United States Senator

Cory A. Booker United States Senator

Amy Klobuchar
United States Senator

Peter Welch
United States Senator

cc: The Honorable Charles E. Grassley
Chairman, Committee on the Judiciary
_______________

Notes:

1 United States v. Padilla, 21-cr-214 (JDB); United States v. Chrestman, 21-cr-160-5 (TJK); United States v. Krol, 22-cr-110-1 (RC).

2 See United States’ Motion to Dismiss Indictment with Prejudice Pursuant to Federal Rule Criminal Procedure 48(a), United States v. Padilla, No. 1:21-cr-00214 (D.D.C. Jan. 21, 2025).

3 Mr. Martin did not seek to withdraw his representation of Mr. Padilla until February 4, a full 14 days after he personally signed the motion to dismiss. See Defense Counsel’s Motion to Withdraw as Counsel, United States v. Padilla, No. 1:21-cr-00214 (D.D.C. Feb. 4, 2025).

4 Spencer S. Hsu, Salvador Rizzo, & Tom Jackman Lawyer Who Represented Jan. 6 Defendants Made Interim D.C. U.S. Attorney, WASH. POST (Jan. 21, 2025), https://www.washingtonpost.com/dc-md-va ... artin-jan- 6-lawyer-dc-us-attorney/

5 See Judy L. Thomas & Daniel Desrochers, Olathe Proud Boy Who Carried Ax Handle into Capitol On Jan. 6 Pleads Guilty to Felonies, THE KANSAS CITY STAR (Oct. 16, 2023), https://www.kansascity.com/news/local/c ... 0469.html; Judy L. Thomas & Daniel Desrochers, KS Proud Boy Who Stormed Capitol Released From Prison Early. He Got Thousands in Donations, KANSAS CITY STAR (Oct. 16, 2024), https://www.kansascity.com/news/local/a ... 58694.html.

6 See Defense Counsel’s Motion to Withdraw as Counsel, United States v. Chrestman, No. 1:21-cr-00160 (D.D.C. Feb. 5, 2025).

7 Ryan J. Reilly, Trump's New D.C. Prosecutor Launches Review to Examine 'Great Failure' Of Key Charge Leveled Against Jan. 6 Defendants, NBC NEWS (Jan. 27, 2025), https://www.nbcnews.com/politics/justicedepartment/ trump-dc-prosecutor-ed-martin-launches-review-jan-6-cases-rcna189503.

8 Tim Hrenchir, Judge dismisses Jan. 6 riot charges against Topekan Will Pope and His Brother, TOPEKA CAPITALJ. (Jan. 27, 2025), https://www.cjonline.com/story/news/cou ... sttopekan- will-pope-and-his-brother/77917282007/.

9 See United States v William Alexander Pope, Notice to the Court Regarding Order No. 239 and a New Motion to Produce Various Case Files, No. 1:21-cr-00128-RC (D.D.C. Jan. 28, 2025).

10 See United States v William Alexander Pope, Reply to the Government’s Opposition (No. 292) to My Notice on Order No. 239 and Motion for Case Files (No. 391), No. 1:21-cr-00128-RC (D.D.C. Feb. 19, 2025)

11 Rules Governing the District of Columbia Bar, Rule XI, Section 2(b).

12 D.C. Rules of Professional Conduct, Rule 1.7(b)(4).

13 D.C. Rules of Professional Conduct, Rule 3.8(a). Although the dismissal of the charges against Mr. Padilla was prompted by President Trump’s pardon, Mr. Martin’s conduct here violates Rule 3.8(a) due to the fact that he did not recuse himself from this matter as required by his employer in the Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. § 2635.502(e) due to his covered relationship with Mr. Padilla as defined in 5 C.F.R. § 2635.502(b)(1)(iv). There is no indication that Mr. Martin received the requisite authorization by an agency designee prior to submitting the motion to dismiss as provided for in 5 C.F.R. § 2635.502(d).

14 D.C. Rules of Professional Conduct, Rule 3.7.

15 @EagleEdMartin (Feb. 3, 2025, 11:46 AM), https://x.com/EagleEdMartin/status/1886456136032817488.

16 @EagleEdMartin (Feb. 7, 2025, 11:27 AM), https://x.com/EagleEdMartin/status/1887901087983689761 (emphasis in original).

17 @USAEdMartin (Feb. 14, 2025, 8:19 PM), https://x.com/USAEdMartin.

18 Spencer S. Hsu, D.C. U.S. Attorney Probing Democrats Over Alleged Threats, Documents Show, WASH. POST (Feb. 20, 2025), https://www.washingtonpost.com/dc-md-va ... ddemocrats.

19 See e.g., Mr. Martin has used the official Twitter account of the U.S. Attorney’s Office for the District of Columbia to describe himself and his colleagues as “President Trumps’ [sic] lawyers” who “fight to protect his leadership as our President…” @USAO_DC (Feb. 25, 2025, 3:18 PM), https://x.com/USAO_DC/status/1894119675786621225. He has also premised terminations of Assistant U.S. Attorneys on the fact that they were hired prior to President Trump’s second inauguration: “Based on your hiring as an Assistant United States Attorney in the District of Columbia in the weeks leading up to President Trump’s second inauguration, your hiring has hindered the ability of Acting U.S. Attorney Martin to staff his office in furtherance of his obligation to faithfully implement the agenda that the American people elected Trump to execute.” See Letter from Stephanie M. Hinds, Director, U.S. Dep’t of Justice, Exec. Off. for U.S. Attorneys, to Sean Brennan, Assistant U.S. Attorney (Jan. 31, 2025).

****************************

President Trump’s New Gilded Age: How Trump’s Department of Justice is Promoting Political and Corporate Corruption to Benefit His Most Loyal Supporters

Democratic Staff Report
Committee on the Judiciary
U.S. House of Representatives

February 25, 2025

Immediately after President Trump assumed office, the Administration began purging experienced career civil servants throughout the Department of Justice (DOJ), clearing out the leadership ranks of national security and public corruption prosecutors, replacing them with inexperienced sycophants. At the same time, the Administration has taken steps to suppress anti-corruption prosecutions and investigations, disbanding critical task forces at DOJ and the Federal Bureau of Investigation (FBI), and halting the enforcement of anti-corruption laws. Recently, the Trump DOJ attempted to enter into a corrupt quid pro quo with indicted New York City Mayor Eric Adams, essentially forcing multiple veteran prosecutors, including staunch conservatives, to resign rather than follow through on unlawful and unethical orders from Acting Deputy Attorney General Emil Bove. Together, these efforts threaten effective law enforcement, undermine public confidence in the rule of law, and foster networks of corruption and lawlessness that ultimately make our communities less safe. Under President Trump, the DOJ has become an agency charged with ensuring that the President’s most loyal supporters can break the law with impunity.

I. THE TRUMP DOJ IS ALREADY A LAWLESS DEPARTMENT THAT PROTECTS THOSE MOST LOYAL TO THE PRESIDENT AND CARRIES OUT HIS DEMANDS FOR REVENGE AND RETRIBUTION

Donald Trump’s time as president and as a presidential candidate has been defined by his desire for vengeance against people whom he believes have wronged him. During his first term, he demanded retribution against FBI leadership under Director James Comey for initiating the investigation into Russian election interference. During his 2024 campaign, Donald Trump made more than 100 threats to prosecute or punish his political enemies, particularly members of the January 6th Committee.1 Moreover, during a March 2023 speech at the Conservative Political Action Conference (CPAC), then-presidential candidate Trump said: “I am your warrior. I am your justice. And for those who have been wronged and betrayed: I am your retribution.”2 He also asked several of his close advisers, including at least one of his personal attorneys, if they knew all the names of senior FBI agents and Justice Department personnel who have worked on the federal probes into him.3

Since taking office, President Trump and members of his Administration have made good on their promise to seek retribution and have weaponized the federal government in order to achieve that goal. As mentioned in the following section of this report, the Trump Administration has begun a wholesale purge of career government officials at the FBI and DOJ. However, the Administration’s actions do not stop there. Shortly after taking office, Attorney General (AG) Pam Bondi launched a “Weaponization Working Group” to investigate prosecutions against President Trump, including his 34-count felony conviction and the $486 million civil fraud judgment against him in New York.4 The Trump Administration has also pardoned more than 1,500 people charged in connection with the Capitol attack on January 6, 2021, ordered the Justice Department investigate thousands of career federal prosecutors and FBI employees, and directed federal prosecutors with the U.S. Attorney’s Office for the Southern District of New York (SDNY) to drop corruption charges against New York City Mayor Eric Adams.5

Perhaps, the most chilling actions have come from the U.S. Attorney’s Office for the District of Columbia. Earlier this week, news reports revealed that Edward Martin, the Interim U.S. Attorney for the District of Columbia, had begun an investigation of statements made by Democratic political figures, which he coined “Operation Whirlwind.”6 This investigation began with a “letter of inquiry” to Senate Majority Leader Chuck Schumer about his March 2020 statement that Supreme Court Justices Brett Kavanaugh and Neil Gorsuch would “pay the price” if they voted to restrict abortion rights.7 Senator Schumer’s Chief of Staff responded to Mr. Martin’s allegations by highlighting a subsequent speech that Senator Schumer made on the Senate floor, in which he said: “My point was that there would be political consequences…for President Trump and Senate Republicans if the Supreme Court, with the newly confirmed Justices, stripped away a woman’s right to choose.”8 In addition to Senator Schumer, Representative Robert Garcia also received a letter from Mr. Martin regarding his statements about Elon Musk.9 As Rep. Garcia has pointed out, Mr. Martin’s letters of inquiry are threats that clearly infringe on the First Amendment and are an attempt to silence speech that Elon Musk and the Trump Administration disagree with.10

In addition to his investigation of Democratic political leaders, Mr. Martin has ordered top officials in his office to undertake an internal review of its handling of Capitol riot prosecutions, particularly the office’s decision to charge more than 250 Capitol riot defendants with obstructing an official proceeding of Congress.11 Last June, the Supreme Court adopted a narrower interpretation of the obstruction statute, holding that “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or . . . other things used in the proceeding, or attempted to do so.” 12

Although the Circuit Court for the District Court of Columbia ruled consistent with how January 6 defendants were charged, in an email announcing the internal review, Mr. Martin said, "Obviously, the use was a great failure of our office … and we need to get to the bottom of it.” Mr. Martin then instructed personnel to deliver “all information you have related to the use of 1512 charges including all files, documents, notes, emails and other information.”13

The Trump Administration has also taken a number of actions to abolish and stifle anti-corruption efforts. On February 5, 2025, AG Bondi circulated a memo that, among other things, announced the elimination of the KleptoCapture Task Force, the Kleptocracy Team, and the Kleptocracy Asset Recovery Initiative (KARI).14 The Task Force served as an interagency task force designed to enforce the sanctions, export restrictions, and other measures that the United States had imposed on Russia after its invasion of Ukraine.15 KARI had been established by DOJ in 2010 to bring together prosecutors, financial experts, and investigators to “hold corrupt actors and enablers accountable under the law and to return recovered funds for the benefit of the people harmed by the corruption.”16 Between the establishment of KARI and December 2023, the program had recovered $1.7 billion, with more than $1.6 billion returned to those harmed by corruption efforts.17 These initiatives have been critical to DOJ’s targeting and seizure of ill-gotten assets of corrupt foreign actors in several countries, including Russia and China.18 A leading anti-corruption NGO has noted that the elimination of these initiatives “will significantly diminish the U.S.’s ability to counter the transnational corruption that continues to threaten core U.S. security and economic interests[.]”19

On February 5, AG Bondi also announced that “The National Security Division's Corporate Enforcement Unit is also disbanded. Personnel assigned to the Unit shall return to their previous posts.”20 This unit was responsible for holding largescale companies accountable if they violated U.S. national security law, including sanctions evasion, export control violations, and similar economic crimes.21 This unit would be responsible for holding corporate actors accountable that help foreign adversaries like Russia, China, North Korea, and Iran evade U.S. national security law and sanctions.

In an Executive Order issued February 10, 2025, President Trump additionally halted the enforcement of the Foreign Corrupt Practices Act (FCPA) for 180 days and called for the “review in detail all existing FCPA investigations and enforcement actions,” claiming [the FCPA] “has been systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States.”22 The FCPA has existed since 1977 to prohibit U.S. businesses and their agents from bribing foreign officials abroad related to their businesses, and generally require recordkeeping to “provide reasonable assurances that transactions are executed and assets are accessed and accounted for in accordance with management's authorization.”23

II. PRESIDENT TRUMP IS PURGING EXPERIENCED CAREER CIVIL SERVANTS THROUGHOUT THE DOJ AND REPLACING THEM WITH JUNIOR SYCOPHANTS, MAKING OUR COMMUNITIES LESS SAFE

The Trump Administration has launched an unprecedented and all-out purge at the DOJ, including its components like the FBI, by firing, demoting, and removing career employees, including the most experienced investigators and senior prosecutors charged with enforcing federal law.

The actions below detail the purges that the Trump Administration has engaged in since assuming office.

• Experienced DOJ leadership responsible for combatting corruption and enforcing ethical and recusal rules has been eviscerated. More than 20 veteran DOJ prosecutors and experts, including the leaders of vital sections, have been replaced by loyalist political employees who put President Trump’s unconstitutional agenda above the rule of law.

• The Public Integrity Section has been gutted. President Trump forced out the longtime head of the anti-corruption section, and five additional attorneys— including two of its top lawyers—resigned in protest rather than comply with Acting Deputy Attorney General Emil Bove’s demand that the Section dismiss corruption charges against Mayor Adams.

• Seasoned D.C. prosecutors and FBI agents have been sacked as punishment for working on January 6th cases, as assigned. Mr. Martin fired dozens of career prosecutors in his office for simply having worked on January 6th cases, as assigned, many of whom were currently working to combat violent crime in the District of Columbia. Moreover, the FBI has begun a review of thousands of career agents to evaluate them for potential dismissal, simply for having investigated the January 6th attack as instructed.  

• SDNY has become a tool of corruption and quid pro quos. Seven experienced federal prosecutors have resigned from their roles rather than carry out unlawful directives from the Trump Administration to protect New York City Mayor Adams. This includes Danielle Sassoon, the Acting U.S. Attorney for SDNY, as well as Assistant U.S. Attorney Hagan Scotten. Moreover, John Keller, the acting head of the DOJ Public Integrity Section, and Kevin Driscoll, the senior-most career official leading the DOJ’s Criminal Division, also resigned rather than carry out the dismissal of the Adams case after Ms. Sassoon resigned.24

• The government lost a top criminal prosecutor in D.C. Denise Cheung, a 24-year veteran of the DOJ and head of the criminal division of the U.S. Attorney's Office for the District of Columbia, resigned rather than comply with directives to open investigations into the Biden Administration without sufficient evidence.25

These firings and reassignments throughout the Department are detailed below.

A. Firings, Reassignments, and Forced Resignations of DOJ Prosecutors

Within just hours of taking office, on January 20, 2025, President Trump summarily removed top career officials from key positions at the DOJ’s National Security, Criminal, Civil Rights, and Environment and Natural Resources Divisions.26 This includes the reassignment of at least 20 key career officials at the DOJ to different positions, some of whom were senior career leaders in the national security and criminal sections.27 Career officials that were reassigned include Bruce Swartz, the long-term head of the Department’s Office of International Affairs, which handles extradition matters,28 as well as Bradley Weinsheimer, the DOJ’s seniormost career official specializing in ethics and recusal issues. Both resigned rather than accept a demotion and reassignment.29

Also, within hours of taking office, President Trump moved to reassign Corey Amundson, the top corruption prosecutor at the Department’s Public Integrity Section, who resigned rather than be reassigned to a newly created task force targeting Sanctuary Cities.30 This section has also recently been swept up into the Eric Adams prosecution.31

On February 13, 2025, Acting Deputy Attorney General Emil Bove instructed the Acting U.S. Attorney for the SDNY, Danielle Sassoon, to drop the corruption charges filed against New York City Mayor Eric Adams, in order to allow Mr. Adams more bandwidth to enforce President Trump’s immigration agenda.32 Ms. Sassoon resigned rather than comply with the demand, noting that the request was “inconsistent with [her] ability and duty to prosecute federal crimes without fear or favor and to advance good-faith arguments before the courts” and describing Mayor Adams’s teams efforts to obtain a quid pro quo in exchange for dismissal.33 The SDNY prosecutors who worked on the case with Ms. Sassoon were put on administrative leave for also refusing to obey the order to file for dismissal, and the lead prosecutor on the case, Hagan Scotten, also resigned on February 14, 2025.34 Mr. Bove then transferred the case over to the DOJ’s Public Integrity Section, demanding that the Section designate someone to dismiss the case against Mayor Adams.35 This led to the resignation of two senior lawyers, plus another three attorneys in the Section, in protest.36 The motion to dismiss was ultimately filed by Mr. Bove and Edward Sullivan, a veteran public corruption prosecutor in the Section, who reportedly agreed to file it “to avoid a mass firing of prosecutors and allow his colleagues time to seek jobs elsewhere.”37

On January 27, 2025, President Trump also fired more than a dozen career prosecutors who previously worked on Special Counsel Jack Smith’s team.38 The Acting Attorney General told them: “I do not believe that the leadership of the department can trust you to assist in implementing the president’s agenda faithfully.”39 Notably, federal civil service laws forbid partisan discrimination and political retribution, and also clearly prevent retaliation against DOJ prosecutors for the crime of doing their jobs as assigned.40

On January 20, 2025, President Trump named Edward Martin as Interim U.S. Attorney for the District of Columbia, and on February 17, 2025, nominated him to serve as the U.S. Attorney in this position.41 Mr. Martin is an election-denying criminal defense attorney for January 6th rioters who, within days of taking this position, launched a probe into the office’s prosecutors who worked on January 6th cases.42 On January 31, 2025, Mr. Martin fired dozens of these career prosecutors in his office, simply for having worked on January 6th prosecutions as they were directed to do by their superiors.43 At the time of their firing, these experienced non-political prosecutors were assigned to tackling serious crime throughout D.C., including drug crimes, domestic violence, and property crime— immediately putting Washington, D.C. residents at greater risk.

On Tuesday, February 21, 2025, President Trump announced that he instructed the DOJ to fire any remaining U.S. attorneys installed by the Biden Administration, in an effort to clean out any remaining appointees who may resist President Trump’s tyrannical government agenda.44 Those firings began Wednesday, February 13, 2025, before his Truth Social announcement, when some holdover U.S. attorneys from the Biden Administration received an abrupt email notifying them of their dismissals and disconnection from their access to government phones and computers.45 It was done so chaotically that some emails went to internal emails that they no longer had access to, meaning U.S. attorneys, the chief law enforcement officers in their respective federal districts, were left scrambling and trying to guess whether they had a job or not until days later.46 In a major departure from common practice, the Trump Administration did not coordinate removal of U.S. attorneys with DOJ’s Executive Office for U.S. Attorneys (EOUSA).47

B. Firings, Reassignments, and Forced Resignations of FBI Agents

Within ten days of taking office, the Trump Administration demoted all six of the seniormost career FBI officials— Executive Assistant Directors who lead the FBI’s National Security; Intelligence; Criminal, Cyber, Response, and Services; Science and Technology, Information and Technology; and Human Resources branches.48 All of these individuals had spent decades with the FBI working their way into these leadership positions under administrations of both parties.49

In these early days, the Trump Administration also forced the Special Agents in Charge (SACs) of multiple FBI offices to either resign or be fired.50 This includes the Field Office in Washington, D.C., which has grave implications on national security given its jurisdiction over many federal government buildings and operations; the Field Office in New Orleans, just days before the city was to host the Super Bowl on February 9; and the Field Offices in Las Vegas and Miami.51

Amid these removals, a memo sent on January 31, 2025, indicated that Acting Deputy Attorney General Bove ordered the targeting and review of every FBI agent who ever investigated a January 6th case, in order to begin “a review process to determine whether any additional personnel actions are necessary.”52 On February 4, 2025, identifying information for over 5,000 FBI officials who worked on these cases was turned over to DOJ leadership.53 In response, FBI agents filed two lawsuits against the DOJ and then-Acting Attorney General James McHenry to prevent the disclosure of this list by Trump allies, which they worry would put both the named agents and their families at risk of harm, especially since some January 6th defendants who were pardoned allegedly “link to each other in posts promoting violence and insurrection against law enforcement agents.”54 On February 7, 2025, the FBI reached an agreement with the plaintiffs not to release any agents’ names without two days’ notice.55

C. Firings, Reassignments, and Forced Resignations of Other DOJ Officials and Employees

On January 20, 2025, President Trump removed multiple senior leaders of the Justice Department's Executive Office for Immigration Review (EOIR) without cause and without notice.56 The firing notice cited a hopelessly vague rationale for their removal, namely “Title II of the Constitution,” which is a textual constitutional provision, not a substantive legal justification for removing civil service-protected career Department employees. Between February 7 and February 14, 2025, 20 immigration judges were also fired, placing additional strains on already notoriously backlogged dockets in immigration courts. 57

On the same day, President Trump also forced out the Director of the Bureau of Prisons (BOP) Collette Peters. Ms. Peters is pursuing an appeal through the Merit Systems Protection Board.58

On February 20, 2025, the Chief Counsel of the DOJ’s Bureau of Alcohol, Tobacco, and Firearms and Explosives (ATF) was fired and escorted from the building, without an explanation provided by the DOJ.59

III. REPUBLICANS ARE RECYCLING TIRED CONSPIRACY THEORIES—LIKE DEBUNKED CLAIMS OF THE BIDEN ADMINISTRATION TARGETING CONSERVATIVES—TO DISTRACT THE AMERICAN PEOPLE FROM DOJ’S SLIDE INTO LAWLESSNESS

Instead of conducting oversight of the DOJ and the Administration, Committee Republicans are entirely focused on continuing failed investigations started last Congress and aimed largely at the Biden Administration, the Biden family, and baseless claims of a “corrupt” DOJ working to target and silence conservative voices.

These investigations were launched to investigate the following theories, which have been widely debunked and disproven:

• Big Tech: Republicans allege that the Biden Administration was “colluding” with “Big Tech” to censor conservative voices, and the Biden Administration was “coercing” these companies to remove right-wing content. In reality, the evidence shows that there was no coercion or collusion between the government and social media companies, and the Supreme Court noted in dicta that a district court’s findings of such collusion appeared to be “clearly erroneous.”

• Targeting Catholic Views: Republicans allege that the Biden FBI impermissibly linked Catholics’ religious views to violent extremists in violation of the First Amendment by issuing a memorandum that purports to target Catholic views. In reality, an internal review found that the memo was targeting one specific individual, not Catholic views at large. Moreover, both Attorney General Garland and FBI Director Wray criticized the memo, and trainings and disciplinary actions were put into place to prevent such an occurrence from happening again.

• Targeting Parents: Republicans allege that Attorney General Garland impermissibly linked concerned, law-abiding parents who spoke at schoolboard meetings to domestic terrorists, and used PATRIOT Act investigative tools on them, because they espoused conservative viewpoints and concerns. In reality, Attorney General Garland refuted every claim that parents were being treated as domestic terrorists or that PATRIOT Act tools were being used to target law abiding parents concerned for their children. The word “parent” was not even mentioned in the memo Republicans are so concerned with. The memo was circulated because of increasing violent threats against education officials to keep all such officials safe from harm.

• A “Witch Hunt” Against Trump Over Classified Documents: Republicans allege that the Biden DOJ conducted a “witch hunt” against President Trump when the FBI “raided” his home in Mar-a-Lago to retrieve classified documents, and that Attorney General Garland appointed Jack Smith as Special Counsel to launch a “politically motivated” prosecution against President Trump for his handling of those documents. In reality, President Trump knowingly mishandled hundreds of classified documents and put America’s national security directly at risk, and

• Whistleblower Retaliation: Republicans allege that the Biden FBI systematically revoked security clearances of its conservative-leaning agents as punishment for their right-wing views. In reality, there is no evidence that the FBI systematically used security clearance revocation to target whistleblowers or conservative-minded employees at the FBI.

• Discriminating Against Pro-Life Health Centers: Republicans allege that the Biden Administration selectively enforced the FACE Act, only to protect abortion clinics and never to protect pro-life institutions. In reality, there is no evidence that the Biden Administration selectively enforced the FACE Act, and in fact actively worked to let pro-life centers know they were also protected under this law. This is nothing more than a failed attempt to make it seem like pro-life individuals are under attack.

In reality, Republicans are rehashing these bogus conspiracy theories to gaslight the American public into believing it was President Biden—not Donald Trump—infringing on their civil liberties. Clearly, as detailed in this report, it is Donald Trump’s DOJ that is lawless, discriminatory, and a growing threat to public order and the rights of the people.

_______________

Notes:

1 Tom Dreisbach, Trump has made more than 100 threats to prosecute or punish perceived enemies, NPR (Oct. 22, 2024), https://www.npr.org/2024/10/21/nx-s1-51 ... -liberties.

2 Former Pres. Trump: "I Am Your Justice...I Am Your Retribution”, C-SPAN (Mar. 4, 2023), https://www.c-span.org/clip/campaign-20 ... on/5060238.

3 Ken Dilanian, Jonathan Dienst, Ryan J. Reilly & Tom Winter, Names of FBI agents who investigated Capitol riots to be handed over to Trump DOJ officials, NBC NEWS (Feb. 3, 2025), https://www.nbcnews.com/politics/nation ... rcna189642.

4 Cristine Soto DeBerry, Opinion, Our justice system held Trump accountable. Now he's weaponizing AG, DOJ against it., USA TODAY (Feb. 19, 2025), https://www.usatoday.com/story/opinion/ ... 472835007/.

5 Id.

6 Steve Benen, Trump-appointed prosecutor kicks off ‘Operation Whirlwind,’ eyes Schumer, MSNBC (Feb. 19, 2025), https://www.msnbc.com/rachel-maddow-sho ... rcna192878.

7 Read interim U.S. attorney Ed Martin’s letters to Democratic lawmakers, WASH. POST (Feb. 19, 2025), https://www.washingtonpost.com/dc-md-va ... er-garcia/.

8 Id.

9 Robert Garcia (@RobertGarcia), X (Feb. 20, 2025, 2:55 PM), https://x.com/RobertGarcia/status/1892664373463683535.

10 Id.

11 Spencer S. Hsu, Keith L. Alexander & Tom Jackman, Interim D.C. U.S. attorney Ed Martin launches probe of Jan. 6 prosecutions, WASH. POST (Jan. 27, 2025), https://www.washingtonpost.com/dc-md-va ... rney-jan6/.

12 Fischer Decision at p. 16

13 Spencer S. Hsu, Keith L. Alexander & Tom Jackman, Interim D.C. U.S. attorney Ed Martin launches probe of Jan. 6 prosecutions, WASH. POST (Jan. 27, 2025), https://www.washingtonpost.com/dc-md-va ... rney-jan6/.

14 Memorandum, Total Elimination of Cartels and Transnational Criminal Organizations The Attorney General, U.S. DEP’T OF JUSTICE (Feb. 5, 2025), https://www.justice.gov/ag/media/1388546/dl?inline; Press Release, Attorney General Memorandum Redirects U.S. Anti-Corruption Efforts Raising Questions and Concerns, TRANSPARENCY INTERNATIONAL (Feb. 6, 2025), https://us.transparency.org/news/attorn ... tion-laws/.

15 Press Release, Attorney General Merrick B. Garland Announces Launch of Task Force KleptoCapture, U.S. DEP’T OF JUSTICE (March 2, 2022), https://www.justice.gov/archives/opa/pr ... ptocapture.

16 Press Release, Deputy Assistant Attorney General Kevin Driscoll Delivers Remarks at the Global Forum on Asset Recovery Action Series in Atlanta, U.S. DEP’T OF JUSTICE (Dec. 12, 2023), https://www.justice.gov/archives/opa/sp ... orum-asset.

17 Id.

18 Id.

19 Press Release, Attorney General Memorandum Redirects U.S. Anti-Corruption Efforts Raising Questions and Concerns, Transparency International U.S. (Feb. 6, 2025) (online at https://us.transparency.org/news/attorn ... tion-laws/).

20 Memorandum, General Policy Regarding Charging, Plea Negotiations, and Sentencing, The Attorney General, U.S. DEP’T OF JUSTICE (Feb. 5, 2025), https://www.justice.gov/ag/media/1388541/dl.

21 Press Release, Justice Department’s National Security Division Announces Key Corporate Enforcement Appointments, U.S. DEP’T OF JUSTICE (Sept. 11, 2025), https://www.justice.gov/archives/opa/pr ... nforcement ; Focusing the Spotlight: DOJ Focuses on National Security in Corporate Criminal Enforcement, CROWELL, https://www.crowell.com/en/insights/cli ... nforcement (last visited Feb. 22, 2025).

22 Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (Feb. 10, 2025) http://www.whitehouse.gov/presidential- ... -security/ ; Department of Justice, Foreign and Corrupt Practices Act Unit, https://www.justice.gov/criminal/crimin ... ctices-act (last visited Feb. 16, 2025).

23 U.S. Securities and Exchange Commission, Foreign Corrupt Practices Act (FCPA), https://www.sec.gov/enforcement/foreign ... ctices-act (last visited Feb. 22, 2025).

24 Ryan Lucas & Carrie Johnson, 3 top U.S. Prosecutors resign over order to drop NYC Mayor Eric Adams corruption case, NPR (Feb. 13, 2025, 6:11 PM), https://www.npr.org/2025/02/13/nx-s1-52 ... signations.

25 Ryan J. Reilly, Veteran federal prosecutor resigns over bank freeze order from Trump appointee, NBC NEWS (Feb. 18, 2025, 4:23 PM), https://www.nbcnews.com/politics/justic ... rcna192619.

26 Perry Stein & Ellen Nakashima, Justice Dept. removes senior career officials from key positions, WASH. POST (Jan. 21, 2025), https://www.washingtonpost.com/national ... -criminal/.

27 Eric Tucker, Key career officials at Justice Department reassigned to different positions, AP sources say, PBS NEWS (Jan. 22, 2025), https://www.pbs.org/newshour/politics/k ... ources-say.

28 Id.

29 Sarah N. Lynch, US Justice Department senior career ethics official removed from post, source says, REUTERS (Jan. 27, 2025), https://www.reuters.com/world/us/us-jus ... 025-01-27/.

30 Hannah Rabinowitz, et al., How Trump’s Justice Department has gutted the government’s ability to chase public corruption, CNN POLITICS (Feb. 14, 2025, 7:38 AM), https://www.cnn.com/2025/02/14/politics ... index.html.

31 Kara Scannell, et. al., ‘It was never going to be me’: How Trump’s DOJ sparked a crisis and mass resignations over the Eric Adams case, CNN (Feb. 15, 2025, 7:16 AM), https://www.yahoo.com/news/never-going- ... 38140.html.

32 William K. Rashbaum, et. al., Order to Drop Adams Case Prompts Resignations In New York and Washington, N.Y. TIMES (Feb. 13, 2025), https://www.nytimes.com/2025/02/13/nyre ... adams.html.

33 Id.

34 Id.; Jeremy Roebuck, et. al., Justice Officials move to drop Adams case After 7 lawyers refuse, resign in protest, WASH. POST (Feb. 14, 2025), https://www.washingtonpost.com/national ... orruption/.

35 Roebuck, et. al., supra at note 11.

36 Id.; Rashbaum, et. al., supra at note 9; Lucas & Johnson, supra at note 1.

37 Id.

38 Glenn Thrush, et. al., Justice Dept. Fires Prosecutors Who Worked on Trump Investigations, N.Y. TIMES (Jan. 27, 2025), Trump Administration Fires Prosecutors Who Aided Jack Smith Investigations - The New York Times.

39 Id.

40 Id.

41 Press Release, U.S. Att’y’s Off. D.C., Edward R. Martin, Jr. Appointed U.S. Attorney for the District of Columbia (Jan. 27, 2025)(on file with the Committee); Hailey Chi-Sing, Trump nominates Jan. 6 defense attorney for top prosecutor role in DC, FOX NEWS (Feb. 18, 2025), https://www.foxnews.com/politics/trump- ... or-role-dc.

42 Spencer S. Hsu, et. al., Interim D.C. U.S. attorney Ed Martin launches probe of Jan. 6 prosecutions, WASH. POST (Jan. 27, 2025), https://www.washingtonpost.com/dc-md-va ... rney-jan6/.

43 Kyle Cheney & Josh Gerstein, DOJ fires dozens of prosecutors who handled Jan. 6 cases, POLITICO (Jan. 31, 2025), https://www.politico.com/news/2025/01/3 ... s-00201904.

44 Hugo Lowell, Trump orders justice department to fire all US attorneys appointed by Biden, THE GUARDIAN (Feb. 19, 2025), https://www.theguardian.com/us-news/202 ... -attorneys.

45 Ben Pen, Trump Said to Terminate Biden Holdover US Attorneys from DOJ, BLOOMBERG LAW (Feb. 12, 2025), https://news.bloomberglaw.com/us-law-we ... department.

46 Lowell, supra at note 22.

47 Pen, supra at note 23.

48 Ken Dilanian, et. al., Trump administration forces out multiple senior FBI officials and January 6 prosecutors, NBC NEWS (Jan. 31, 2025, 6:05 PM), https://www.nbcnews.com/politics/nation ... rcna190138.

49 Id.

50 Id.

51 Id.

52 Id.

53 Josh Campbell, et. al., FBI turns over details of 5,000 employees who worked on January 6 cases to Trump Justice Department, as agents sue, CNN POLITICS (Feb. 4, 2025, 7:27 PM), https://www.cnn.com/2025/02/04/politics ... index.html.

54 Scott McFarlane, et. al., FBI agents sue Trump administration over Jan. 6 scrutiny as FBI discloses list of over 5,000 agents to DOJ, CBS NEWS (Feb. 4, 2025, 5:00 PM), https://www.cbsnews.com/news/fbi-agents ... 6-layoffs/.

55 Robert Legare, et. al., Justice Department agrees not to publicly reveal names of FBI agents who worked on Jan. 6 cases, CBS NEWS (Feb. 7, 2025, 3:48 PM), https://www.cbsnews.com/news/justice-de ... ol-attack/.

56 Alexander Mallin & Mike Levine, Multiple immigration-related DOJ officials removed as part of Trump overhaul: Source, ABC NEWS (Jan. 20, 2025, 9:13 PM), https://abcnews.go.com/US/multiple-immi ... =117920486.

57 Elliot Spagat, Justice Department fires 20 immigration judges from backlogged courts amid major government cuts, AP POLITICS (Feb. 15, 2025, 2:50 PM), https://apnews.com/article/trump-immigr ... 8baf39113a.

58 New Administration Highlights: Trump Revokes Biden’s Security Clearance, N.Y. TIMES (Feb. 7, 2025), https://www.nytimes.com/live/2025/02/07 ... =url-share.

59 Ken Dilanian (@KenDilianianNBC), X (Feb. 20, 2025, 2:59 PM), https://x.com/KenDilanianNBC/status/1892665418419937327.

***********************************

ACLU
AMERICAN CIVIL LIBERTIES UNION
District of Columbia
529 14th Street NW, Ste. 722
Washington, DC 20045
(202) 457-0800
http://www.acludc.org

February 4, 2025

Edward R. Martin Jr.
U.S. Attorney for the District of Columbia
601 D Street NW
Washington, D.C. 20579
Via email: [email protected]; [email protected]

Re: First Amendment concerns and your February 3 letter to Elon Musk

Dear U.S. Attorney Martin,

We were troubled by your February 3, 2025, letter to Elon Musk posted to X in which you promised to “pursue any and all legal action against anyone who impedes your work or threatens your people” and warned that “[a]ny threats, confrontations, or other actions in any way that impact [DOGE employees’] work may break numerous laws.”

There are legally significant differences between “threats” and “confrontations, or other actions in any way that impact [DOGE employees’] work.” The former, if they meet the definition of “true threats,” are unprotected speech under the First Amendment, whereas many words and actions in the latter category—such as criticizing DOGE or its employees, suing DOGE, petitioning government officials to rein DOGE in, and even simply reporting on DOGE and its employees— are not only lawful, but protected by the First Amendment. Similarly, while “threaten[ing] [DOGE’s] people” is not protected by the First Amendment, “imped[ing] [DOGE’s] work” covers a broader (and, depending on how defined, not necessarily unprotected) range of speech.

The government can prosecute unlawful threats; “[w]hat [it] cannot do, however, is use the power of the State to punish or suppress disfavored expression.” Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 188 (2024). Further, even indirect threats by government officials chill speech and may themselves violate the First Amendment. See id. at 189-90 (discussing, among other indicia of unconstitutional coercion, “thinly veiled threats to institute criminal proceedings”).

Additionally, the letter’s choice to single out speakers with particular viewpoints—“Antifa and BLM rioters”—as examples of who ought to be prosecuted raises the specter of viewpoint discrimination, which is also unconstitutional. E.g., Iancu v. Brunetti, 588 U.S. 388, 393 (2019) (“[A] core postulate of free speech law” is that “[t]he government may not discriminate against speech based on the ideas or opinions it conveys.”).

We urge you to clarify publicly that your promise to “pursue . . . legal action” is aimed at “true threats” and other conduct unprotected by the First Amendment, and that your office will enforce the law evenhandedly without regard to anyone’s political association, ideology, or viewpoint.

Sincerely,
ACLU of the District of Columbia

***************************

U.S. Attorney Ed Martin
@USAEdMartin

Public stats make one thing clear:

my predecessor - his name is Matt Graves - chose to engage in lawfare. As he upped political prosecutions, he steered resources$ to a now-debunked legal theory that targeted American citizens, and gun prosecutions went down. Literally.

Let me be clear: he used our $ to chase political hoaxes while the people of DC were terrorized by thugs with guns.

That Biden prosecutor chose politics over the people of DC. History will mark his shame.

We will put the people first. We will get the thugs with guns. We comin.’

We will Make DC Safe Again.

#MarchBadness
8:23 AM · Mar 1, 2025

********************************


"Our initial review of the evidence presented to us indicates that certain individuals and/or groups have committed acts that appear to violate the law in targeting DOGE employees" said Edward R. Martin Jr., U.S. Attorney for the District of Columbia. "We are in contact with FBI and other law-enforcement partners to proceed rapidly. We also have our prosecutors preparing."

Edward J. Martin Jr.
United States Attorney
District of Columbia

*******************************

"As President Trump's lawyers, we are proud to fight to protect his leadership as our President and we are vigilant in standing against entities like the AP that refuse to put American first.

Edward J. Martin Jr.
United States Attorney
District of Columbia

[admin]

Part 1 of 2

https://www.mass.gov/doc/omb-pi-order/download

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

STATE OF NEW YORK; STATE OF CALIFORNIA; STATE OF ILLINOIS; STATE OF RHODE ISLAND; STATE OF NEW JERSEY; COMMONWEALTH OF MASSACHUSETTS; STATE OF ARIZONA; STATE OF COLORADO; STATE OF CONNECTICUT; STATE OF DELAWARE; THE DISTRICT OF COLUMBIA; STATE OF HAWAII; OFFICE OF THE GOVERNOR ex rel. Andy Beshear, in his official capacity as Governor of the COMMONWEALTH OF KENTUCKY; STATE OF MAINE; STATE OF MARYLAND; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW MEXICO; STATE OF NORTH CAROLINA; STATE OF OREGON; STATE OF VERMONT; STATE OF WASHINGTON; and STATE OF WISCONSIN,

Plaintiffs,

v.

DONALD TRUMP, in his official capacity as President of the United States; U.S. OFFICE OF MANAGEMENT AND BUDGET; RUSSELL VOUGHT, in his official capacity as Director of the U.S. Office of Management and Budget; U.S. DEPARTMENT OF THE TREASURY; SCOTT BESSENT, in his official capacity as Secretary of the Treasury; PATRICIA COLLINS, in her official capacity as Treasurer of the United States; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; ROBERT F. KENNEDY, JR., in his official capacity as Secretary of Health and Human Services; U.S. DEPARTMENT OF EDUCATION; LINDA MCMAHON, in her official capacity as Secretary of Education; U.S. DEPARTMENT OF TRANSPORTATION; SEAN DUFFY, in his official capacity as Secretary of Transportation; U.S. DEPARTMENT OF LABOR; VINCE MICONE, in his official capacity as Acting Secretary of Labor; U.S. DEPARTMENT OF ENERGY; CHRIS WRIGHT, in his official capacity as Secretary of Energy; U.S. ENVIRONMENTAL PROTECTION AGENCY; LEE ZELDIN, in his official capacity as Administrator of the U.S. Environmental Protection Agency; U.S. DEPARTMENT OF THE INTERIOR; DOUG BURGUM, in his official capacity as Secretary of the Interior; U.S. DEPARTMENT OF HOMELAND SECURITY; KRISTI NOEM, in her capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF JUSTICE; PAMELA BONDI, in her official capacity as Attorney General of the U.S. Department of Justice; THE NATIONAL SCIENCE FOUNDATION; DR. SETHURAMAN PANCHANATHAN, in his capacity as Director of the National Science Foundation; U.S. DEPARTMENT OF AGRICULTURE; BROOKE ROLLINS, in her official capacity as Secretary of Agriculture; U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; SCOTT TURNER, in his official capacity as Secretary of Housing and Urban Development; U.S. DEPARTMENT OF STATE; U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT; MARCO RUBIO, in his official capacities as Secretary of State and Acting Administrator of the United States Agency for International Development; U.S. DEPARTMENT OF DEFENSE; PETER HEGSETH, in his official capacity as Secretary of Defense; U.S. DEPARTMENT OF VETERANS AFFAIRS; DOUG COLLINS, in his official capacity as Secretary of Veterans Affairs; U.S. DEPARTMENT OF COMMERCE; HOWARD LUTNICK, in his official capacity as Secretary of Commerce; NATIONAL AERONAUTICS AND SPACE ADMINISTRATION; JANET PETRO in her official capacity as Acting Administrator of National Aeronautics and Space Administration; CORPORATION FOR NATIONAL AND COMMUNITY SERVICE; JENNIFER BASTRESS TAHMASEBI, in her official capacity as Interim Head of the Corporation for National and Community Service; U.S. SOCIAL SECURITY ADMINISTRATION; LELAND DUDEK, in his official capacity as Acting Commissioner of United States Social Security Administration; U.S. SMALL BUSINESS ADMINISTRATION; and KELLY LOEFFLER, in her official capacity as Administrator of U.S. Small Business Administration,

Defendants.

C.A. No. 25-cv-39-JJM-PAS

MEMORANDUM AND ORDER

JOHN J. MCCONNELL, JR., United States District Chief Judge.

The Executive’s categorical freeze of appropriated and obligated funds fundamentally undermines the distinct constitutional roles of each branch of our government. The interaction of the three co-equal branches of government is an intricate, delicate, and sophisticated balance—but it is crucial to our form of constitutional governance. Here, the Executive put itself above Congress. It imposed a categorical mandate on the spending of congressionally appropriated and obligated funds without regard to Congress’s authority to control spending. Federal agencies and departments can spend, award, or suspend money based only on the power Congress has given to them–they have no other spending power. The Executive has not pointed to any constitutional or statutory authority that would allow them to impose this type of categorical freeze. The Court is not limiting the Executive’s discretion or micromanaging the administration of federal funds. Rather, consistent with the Constitution, statutes, and caselaw, the Court is simply holding that the Executive’s discretion to impose its own policy preferences on appropriated funds can be exercised only if it is authorized by the congressionally approved appropriations statutes. Accordingly, based on these principles and the reasons stated below, the Court grants the States’ Motion for Preliminary Injunction. ECF No. 67.

I. BACKGROUND

We begin by restating the American government principles learned during critical civics education lessons in our youth.1 Our founders, after enduring an eight-year war against a monarch’s cruel reign from an ocean away, understood too well the importance of a more balanced approach to governance. They constructed three co-equal branches of government, each tasked with their own unique duties, but with responsibilities over the other branches as a check in order to ensure that no branch overstepped their powers, upsetting the balance of the fledgling constitutional republic. See Kilbourn v. Thompson, 103 U.S. 168, 191 (1880). These concepts of “checks and balances” and “separation of powers” have been the lifeblood of our government, hallmarks of fairness, cooperation, and representation that made the orderly operation of a society made up of a culturally, racially, and socioeconomically diverse people possible.

The three branches of our government—Legislative, Executive, and Judicial—derive their power from the United States Constitution; they function together, and one branch’s power does not supersede that of another. “To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts.” Massachusetts v. Mellon, 262 U.S. 447, 488 (1923); see also Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825) (Marshall, C.J.) (“[T]he legislature makes, the executive executes, and the judiciary construes the law”). Importantly, James Madison wrote that this system prevents “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands.” The Federalist No. 47, at 301 (C. Rossiter ed. 1961). Such an accumulation and concentration of power would pose an inherent “threat to liberty.” Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring).

The Legislative branch, consisting of two Houses of Congress elected by the citizens of the states, has the power to levy taxes, finance government operations through appropriations, and to set the terms and conditions on the use of those appropriations. U.S. Const. art. I, §§ 8, 9. Congress also makes laws, and the Constitution prescribes a specific procedure for it to follow involving the agreement of both the House of Representatives and the Senate and presentment of the final bill to the President for signature or veto. U.S. Const. art. I, §§ 1, 7. The President, as head of the Executive Branch, may recommend laws for Congress’s consideration, including those related to spending. U.S. Const. art. II, §§ 1, 3. Once the bill becomes the law, U.S. Const. art. I, § 7, the Constitution imposes on the President a duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. And Article III empowers the Judiciary with the “province and duty ... to say what the law is” in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177 (1803); U.S. Const. art. III, § 2.

Important to this case is how Congress uses its power to authorize spending to support federal programs and activities. One way is through an appropriation, which creates the legal authority to “make funds available for obligation” and to make “expenditure[s]” for the purposes, during the time periods, and in the amounts specified in the law authorizing the appropriations. See 2 U.S.C. § 622(2)(A)(i). An “obligation” is a “definite commitment that creates a legal liability of the government for the payment of goods and services ordered or received, or a legal duty on the part of the United States that could mature into” such a liability; an “expenditure,” also known as a “disbursement,” is the actual spending of federal funds. U.S. Gov’t Accountability Off., A Glossary of Terms Used in the Federal Budget Process, GAO-05-734SP, at 45, 48, 70 (Sept. 2005), https://www.gao.gov/assets/gao-05-734sp.pdf (“Budget Glossary”).

Congress has enacted multiple statutes that affirm its control over federal spending. First, the “purpose statute,” 31 U.S.C. § 1301(a), states that “[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law,”—that is, funds can be used only for the purposes that Congress has designated. Second, the Antideficiency Act prevents agencies from obligating or spending funds absent congressional appropriation. 31 U.S.C. § 1341. Finally, the Congressional Budget and Impoundment Control Act of 1974, 2 U.S.C. §§ 681 et seq. (“ICA”), permits the Executive Branch to “impound” (or decline to spend) federal funds only under a very small set of highly circumscribed conditions.

This case also involves the actions of agencies in receipt of statutorily appropriated federal funding. “When an executive agency administers a federal statute, the agency’s power to act is ‘authoritatively prescribed by Congress.’” City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir. 2020) (quoting City of Arlington v. FCC, 569 U.S. 290, 297 (2013)). “It is no exaggeration to say that ‘an agency literally has no power to act ... unless and until Congress confers power upon it.’” City of Providence, 954 F.3d at 31 (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)). In this case, there are specific statutory provisions instructing federal agencies to provide the States with categorical or formula grants where money is allocated on the basis of enumerated statutory factors such as population or the expenditure of qualifying state funds. ECF No. 114 ¶ 93. Several examples of these formula grants involve funding for Medicaid (42 U.S.C. § 1396(a), highway (23 U.S.C. § 104(a)(1), (b), (c)), special education services (the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.), for mental health and substance abuse treatment (42 U.S.C. §§ 300x(a), 300x-7(a), 300x-21(a), 300x-33(a)), power and heating for low-income residents, (the Low-Income Home Energy Assistance Program (“LIHEAP”), 42 U.S.C. § 8621(a)), the Infrastructure Improvement and Jobs Act (“IIJA”) (Pub. L. No. 117-58, 135 Stat. 429 (2021)) and Inflation Reduction Act (“IRA”) (Pub. L. No. 117-169, 136 Stat. 1818 (2022)) for projects ranging from highways, to broadband access, to pollution reduction, to increasing the reliability of the electric grid, and clean water. These statutes direct the agencies to make grants to states for enumerated purposes in accordance with congressional policies.

With this backdrop, the Court moves to the Executive actions that spurred this lawsuit.

A. The President’s Executive Orders and OMB Memorandum M-25-13

The President issued a series of Executive Orders (“EOs”) in his first eight days of office, directing federal agencies to pause and review funding in connection with his policy priorities—specifically relating to:

• “terminating the Green New Deal” and requiring an immediate pause on disbursement of funds appropriated under the IRA or IIJA (“Unleashing EO”), ECF No. 68-1;

• pausing funding programs relating to “removable or illegal aliens” (“Invasion EO”), ECF No. 68-3;

• identifying “diversity, equity, inclusion, accessibility” programs, in an effort to “Ending Radical and Wasteful Government DEI Programs and Preferencing” (“DEI EO”), ECF No. 68-2;

• ending federal funding of gender ideology (“Gender EO”), to ensure that research or educational grants to medical institutions do not include federal funds for transgender medical care (“Gender-Affirming Care EO”), ECF Nos. 68-5, 65-8; and

• pausing federal foreign aid that is not in line “with the foreign policy of the President of the United States” (“Foreign Aid EO”). ECF No. 68-6.

On January 27, 2025, the Office of Management and Budget’s (OMB) Acting Director, Matthew J. Vaeth issued OMB Memorandum M-25-13 (“OMB Directive”), entitled “Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs” to executive departments and agencies’ heads. See ECF No. 68-9. The OMB Directive instructed federal agencies to “complete a comprehensive analysis of all of their Federal financial assistance programs to identify programs, projects, and activities that may be implicated by any of the President’s executive orders.” Id. at 2. Then, the OMB Directive mandated that, in the interim of the comprehensive analyses, “Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the Executive Orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI [diversity, equality, and inclusion], woke gender ideology, and the green new deal.” Id. Agencies had until February 10, 2025 to submit to the OMB “detailed information on any programs, projects, or activities subject to this pause.” Id. The OMB Directive further noted that the pause would continue “until OMB has reviewed and provided guidance” to the agencies in relation to the information submitted to the OMB. Id. The pause was set to “become effective on January 28, 2025, at 5:00 PM.” Id.

B. The States’ Suit, the OMB Directive’s Rescission, and the TRO

On January 28, the “States”—comprising twenty-two states and the District of Columbia—brought suit against the President and the heads of numerous federal executive departments and agencies, arguing that their actions to implement the OMB Directive violated: (1) the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (Counts I, II); (2) the Separation of Powers (Count III); and the Spending, Presentment, Appropriations, and Take Care Clauses of the U.S. Constitution (Counts IV, V). ECF No. 1. Additionally, the States immediately moved for a temporary restraining order (“TRO”) to “restrain the Defendants from enforcing the OMB Directive’s directive to ‘pause all activities related to obligation or disbursement of all Federal financial assistance.’” ECF No. 3 at 3 (citing OMB Directive at 2). That same day, the U.S. District Court for the District of Columbia issued an administrative stay on the OMB Directive until it could hold a hearing on a separate motion for a TRO from coalitions of nonprofit organizations. See Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 314433 (D.D.C. Jan. 28, 2025).

The next day, a hearing for the TRO motion was set for 3:00 p.m. (Hearing Notice Jan. 29, 2025) and the Defendants entered an appearance. ECF No. 39. But shortly before the hearing, the Defendants filed a notice stating that the OMB rescinded the OMB Directive and that the Plaintiffs’ claims and request for prospective relief were now moot. ECF No. 43. Nonetheless, the Court preceded with the TRO hearing at the States’ request. During the hearing the States argued against mootness, presenting White House Press Secretary Karoline Leavitt’s post-rescission announcement on X (formerly Twitter) stating that the federal funding freeze was not rescinded and that the President’s EOs remained in full force and effect. See Minute Entry Jan. 29, 2025; ECF No. 44; see also ECF No. 68-126 (screenshot of the Press Secretary’s X announcement). Feeling inclined to grant a TRO based on the evidence before it, the Court requested that the States submit, and the Defendants respond, to a proposed TRO order (Minute Entry Jan. 29, 2025)—a request the parties promptly complied with, see ECF Nos. 46, 49.

Based on the Press Secretary’s announcement—along with supplemental evidence showing continued enforcement of the OMB Directive—the Court determined that the OMB Directive’s rescission was “in name only” and that the “substantive effect of the directive carries on.” ECF No. 50 at 10. Thus, the Court found that the OMB Directive’s rescission did not moot the States’ claims and ultimately issued a TRO on January 31. See id. at 11-12. The TRO provided that the Defendants: “shall not pause, freeze, impede, block, cancel, or terminate [their] compliance with awards and obligations . . . to the States . . . except on the basis of the applicable authorizing statutes, regulations, and terms” and shall be enjoined from “from reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive . . ..” Id.2

C. TRO Enforcement Order, The Defendants’ Appeal, And The Preliminary Injunction Hearing

A few days after the Court issued the TRO, it set an expedited briefing schedule on the States’ Motion for a Preliminary Injunction. See Text Order, Feb. 3, 2025. Then, on February 6, the Court extended the TRO’s duration, for good cause, until it could rule on the preliminary injunction motion. See Text Order, Feb. 6, 2025. A day later, the States filed an emergency motion to enforce the TRO, pointing to evidence that their access to federal funds was still being denied.3 See ECF No. 66. Based on the evidence, the Court determined that there were “pauses in funding [that] violate[d] the plain text of the TRO” and granted the States’ Motion, ordering the Defendants to end any federal funding pauses and take steps to carry out the TRO during its pendency. ECF No. 96 at 3-4.

Soon after the Court granted the States’ emergency enforcement motion, the Defendants appealed to the First Circuit the Court’s: (1) TRO; (2) order extending the TRO’s duration, and: (3) order enforcing the TRO. ECF No. 98 at 1. The Defendants sought a stay of the Court’s orders from the First Circuit, including an immediate administrative stay. Id. The Defendants also filed a motion to stay, requesting the Court to stay its orders pending appeal. ECF No. 100. Ultimately, the First Circuit denied the Defendants’ motion for an administrative stay (ECF No. 106 at 2), the Court denied the Defendants’ motion to stay (ECF No. 111), and the Defendants then voluntarily dismissed their appeal. ECF Nos. 121, 122. In the meantime, the States amended their complaint. ECF No. 114.

Eventually, after an expedited briefing period, the Court held a hearing on the preliminary injunction motion where the States presented evidence of the categorical pause in funding and the harms resulting. The Defendants did not rebut any of that evidence or introduce any evidence of their own but instead simply argued against the States’ Motion on other grounds. At the close of the arguments, the Court reiterated that the TRO was in full force and effect and took the States’ Motion for Preliminary Injunction under advisement.

II. STANDARD OF REVIEW

“A request for a preliminary injunction is a request for extraordinary relief.” Cushing v. Packard, 30 F.4th 27, 35 (1st Cir. 2022). “To secure a preliminary injunction, a plaintiff must show ‘(1) a substantial likelihood of success on the merits, (2) a significant risk of irreparable harm if the injunction is withheld, (3) a favorable balance of hardships, and (4) a fit (or lack of friction) between the injunction and the public interest.’” NuVasive, Inc. v. Day, 954 F.3d 439, 443 (1st Cir. 2020) (quoting Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003)). In evaluating whether the plaintiffs have met the most important requirement of likelihood of success on the merits, a court must keep in mind that the merits need not be “conclusively determine[d];” instead, at this stage, decisions “are to be understood as statements of probable outcomes only.” Akebia Therapeutics, Inc. v. Azar, 976 F.3d 86, 93 (1st Cir. 2020) (partially quoting Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991)). “To demonstrate likelihood of success on the merits, plaintiffs must show ‘more than mere possibility’ of success–rather, they must establish a ‘strong likelihood’ that they will ultimately prevail.” Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012) (per curiam) (quoting Respect Maine PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010)).

III. DISCUSSION

A. Jurisdiction

The Defendants assert that the Court lacks jurisdiction to enter preliminary relief in this case because: (1) the OMB Directive’s rescission renders the States’ claims—or at least their request for preliminary relief—moot; and (2) the States have not established standing to challenge the OMB Directive. See ECF No. 113 at 11-22. The Court will address each argument in turn.

1. Mootness

The Defendants contend that the States’ claims here are directed only against the OMB Directive, and thus the rescission of the OMB Directive renders the States’ claims moot. Id. at 11. They assert that the States’ allegations of ongoing harms, such as continued funding freezes, do not stem from the challenged OMB Directive but from actions that are not challenged in the States’ Complaint. Id. at 13. Those purportedly unchallenged actions that the Defendants suggest are the true basis for the States’ ongoing harms are: (1) independent agency decisions not based on the OMB Directive; and (2) the issuance of OBM Memorandum M-25-11 (the “Unleashing Guidance”)—which directed agencies to immediately pause certain disbursement of funds appropriated under the IRA and the IIJA.4 Id. at 14-15.

The OMB Directive’s rescission does not render the States’ claims moot. The voluntary cessation doctrine precludes a finding of mootness in this case. The voluntary cessation doctrine gives rise to a mootness exception when the following two-part test is met: (1) the defendant voluntarily ceased the challenged conduct to moot the plaintiff’s case; and (2) there is a reasonable expectation that the defendant will repeat the challenged conduct after the lawsuit’s dismissal. Lowe v. Gagné-Holmes, 126 F.4th 747, 756 (1st Cir. 2025) (citing Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 9 (1st Cir. 2021)). Here, there was a rescission of the challenged OMB Directive, see ECF No. 68-12, but as the Court has previously found, the evidence suggests that the OMB Directive’s rescission was in name only and “may have been issued simply to defeat the jurisdiction of the courts.” ECF No. 50 at 10. The Court made this finding, in part, based on a statement from the White House Press Secretary after the OMB Directive’s rescission, stating:

This is NOT a rescission of the federal funding freeze. It is simply a rescission of the OMB memo. Why? To end any confusion created by the court’s injunction. The President’s EO’s on federal funding remain in full force and effect, and will be rigorously implemented.5

ECF No. 68-126; ECF No. 50 at 10-11. The Defendants’ contentions that the sole goal of that statement was “ending confusion” and “focusing agencies on the legal effect of the President’s recent Executive Orders” are unavailing. ECF No. 113 at 16. The Press Secretary’s statement reflects that the OMB Directive’s rescission was a direct response to a court-issued stay against the OMB Directive so that the challenged federal funding freeze could continue without any judicially-imposed impediment. Therefore, the Defendants’ voluntary rescission of the OMB Directive was a clear effort to moot legal challenges to the federal funding freeze announced in the OMB Directive.

Nor have the Defendants met their heavy burden of illustrating that it is “‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Brown v. Colegio de Abogados de Puerto Rico, 613 F.3d 44, 49 (1st Cir. 2010) (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). The Defendants purport that a reinstatement of the challenged OMB Directive, absent an injunction, is a fear that is “wholly speculative given the existence of the President’s Executive Orders which separately address the President’s priorities.” ECF No. 113 at 16. But nothing suggests that the OMB voluntarily abandoned the OMB Directive because they believed that: (1) the President’s EOs, alone, sufficiently instructed agencies on how to implement the President’s priorities; or (2) the OMB Directive was deficient or exceeded the Defendants’ constitutional or statutory authority. See ECF No. 68-12 (recission without explanation). Rather, as explained above, the Press Secretary’s statement reflects that the OMB Directive’s rescission was in direct response to litigation that impeded the execution of a federal funding freeze. Thus, the rationale underlying the OMB Directive’s rescission makes it unreasonable to conclude that the Defendants will not reinstate the challenged funding freeze absent an injunction from this Court. Accordingly, the States’ challenges are not moot based on the OMB Directive’s rescission.

Next, the Defendants claim that the States’ request for preliminary relief is moot because, by rescinding the OMB Directive, the Defendants have “voluntarily provided the prospective injunctive relief that the States sought in their Complaint.” ECF No. 113 at 17. Since the Defendants’ submission of their Opposition to the States’ Motion for Preliminary Injunction, the States have filed an Amended Complaint that clarifies the scope of their claims and requests for relief. See ECF No. 114. The States request that the Court preliminarily enjoin the Agency Defendants from implementing “the Federal Funding Freeze” “effectuated through EOs, the Unleashing [Guidance], the OMB Directive, and other agency actions . . ..” Id. ¶ 246. The States’ request for a preliminary injunction makes clear that they are challenging a pause on federal funding that was implemented under not only the OMB Directive, but also to the EOs incorporated therein and other agency actions such as the OMB’s issuance of the Unleashing Guidance. Thus, the rescission of the OMB Directive does not provide the States with all the prospective relief they have requested.6 Accordingly, the States’ preliminary injunction request is not moot.

2. Standing

The Defendants assert that the States lack standing to challenge the OMB Directive, particularly with respect to claims based on funding streams that “(1) are not within the scope of the OMB Memo; (2) are not managed by any of the Defendant agencies; or (3) benefit other States or third parties that are not plaintiffs in this case.” ECF No. 113 at 18-19. “To have standing, a plaintiff must ‘present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.’” Dep’t of Com. v. New York, 588 U.S. 752, 766 (2019) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 733 (2008)). The Defendants contend that the States seek to bring five claims against “thousands of various agency funding streams,” and thus must demonstrate standing for each claim against each funding stream. ECF No. 113 at 18. But the States’ claims are not against funding streams.7 Rather, the States’ claims focus on the Defendants’ actions, which seek to inhibit access to obligated funds indefinitely and indiscriminately—without reference to statute, regulations, or grant terms.

The States have introduced dozens of uncontested declarations illustrating the effects of the indiscriminate and unpredictable freezing of federal funds, which implicate nearly all aspects of the States’ governmental operations and inhibit their ability to administer vital services to their residents.8 These declarations reflect at least one particularized, concrete, and imminent harm that flows from the federal funding pause—a significant, indefinite loss of obligated federal funding. And such a harm is fairly traceable to the Defendants’ conduct via their acts to implement a widespread federal funding pause under the OMB Directive, the EOs incorporated therein, and the Unleashing Guidance. Granting this Motion in the States’ favor will more than likely redress their injuries because it would inhibit the abrupt, indefinite pause of obligated federal funds on which the States rely to administer vital services to their residents. Accordingly, the States have the requisite standing to challenge the federal funding freeze.

Now that the Court has jumped over these initial hurdles, it moves to resolution of the States’ preliminary injunction motion.

[admin]

Part 2 of 2

B. Likelihood of Success on the Merits

1. Administrative Procedure Act Claims

The States assert that the Agency Defendants’9 implementation of the federal funding freeze, without regard to relevant authorizing statutes and regulations, violates the Administrative Procedure Act (“APA”) because such actions violate the law, are ultra vires, and arbitrary and capricious. ECF No. 67 at 52 (citing 5 U.S.C. § 706(2)(A)). To begin, the Court must address the Defendants’ arguments that the States’ APA claims do not fall within the Court’s subject matter jurisdiction.

a. Final Agency Action

The APA allows judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. An agency action is “final” if: (1) it marks the “‘consummation’ of the agency’s decisionmaking process,” and (2) the action determines rights or obligations or creates legal consequences. Harper v. Werfel, 118 F.4th 100, 116 (1st Cir. 2024) (citing Bennett v. Spear, 520 U.S. 154, 177 (1997)).

The States identify: (1) the OMB Directive itself; and (2) the Agency Defendants’ implementation of a categorical federal funding freeze, under the OMB Directive and Section 7(a) of the Unleashing EO, as final agency actions. ECF No. 67 at 53. The Defendants contend that the OMB Directive and other “guidance” about implementing the President’s priorities are not final agency actions because the OMB Directive did not determine which funds or grants should be paused but required agencies to make such a determination under their respective authorities. ECF No. 113 at 28.

To suggest that the challenged federal funding freezes were purely the result of independent agency decisions rather than the OMB Directive or the Unleashing Guidance is disingenuous. Recall that the OMB Directive informed agencies that they “must complete a comprehensive analysis of all of their Federal financial assistance programs to identify programs, projects, and activities that may be implicated by any of the President’s executive orders.” ECF No. 68-9 at 2. The OMB Directive mandated that “[i]n the interim” of these comprehensive analyses, “Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders . . ..” Id. (second emphasis added). Elsewhere, the OMB Directive emphasized that “[e]ach agency must pause . . . disbursement of Federal funds under all open awards.” Id.

The record makes clear that following the OMB Directive’s issuance—and even before it was set to take effect—many of the States found themselves unable to draw down appropriated and awarded funding because they were completely shut out from accessing federal funding payment portals such as the Payment Management Services (“PMS”).10 As the States highlight, such a wholesale shutdown does not suggest that agencies made individualized assessments of their statutory authorities and relevant grant terms before making the determination to blanketly pause access to obligated funds.11 And how could these agencies make such assessments? The OMB Directive explicitly stated that the “temporary funding pause will become effective on January 28, 2025, at 5:00 PM”—a mere day after the Directive was issued. Id. As another court faced with a similar challenge to the OMB Directive underscored “it is unclear whether twenty-four hours is sufficient time for an agency to independently review a single grant, let alone hundreds of thousands of them.” Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 368852, at *8 (D.D.C. Feb. 3, 2025). Overall, the OMB Directive amounted to a command, not a suggestion, that Agency Defendants shall execute a categorical, indefinite funding freeze to align funding decisions with the President’s priorities. Such a command, along with the Agency Defendants swift actions to execute the categorical funding freeze, marked the “consummation of each agency’s decisionmaking process to comply with the President’s executive order, the OBM [Directive], or both.” Drs. for Am. v. Off. of Pers. Mgmt., No. CV 25-322 (JDB), 2025 WL 452707, at *5 (D.D.C. Feb. 11, 2025).

The same analysis applies to the Agency Defendants’ acts implementing funding pauses under Section 7(a) of the Unleashing EO and the OMB’s Unleashing Guidance. The Unleashing Guidance largely reiterates the Unleashing EO’s instruction that agencies immediately pause disbursements of funds under the IRA or IIJA and does not even attempt to allow for agency discretion.12 See ECF No. 68-13 at 2. And agencies, such as the Department of Energy (DOE) and the U.S. Department of Agriculture acted quickly to implement the pause of appropriated IIJA and IRA funds. See ECF Nos. 68-123 ¶¶ 33, 36, 37; 68-92 ¶¶ 14-15. Thus, the implementation of those IIJA and IRA funding pauses likely marked the consummation of each agency’s decision to comply with the Unleashing EO, the Unleashing Guidance, or both, not to exercise its discretion.

As to the second finality factor, the evidentiary record sufficiently shows that the abrupt, categorical, and indefinite pause of obligated federal funds is the direct, appreciable legal consequence that States have suffered from the Agency Defendants’ actions implementing the funding pauses commanded in the OMB Directive and the Unleashing EO. Accordingly, the Agency Defendants’ actions suffice as “final agency action” as to permit the Court’s judicial review of such actions under the APA.

Returning to the merits, the Court must decide whether the States are likely to succeed on their claim that the Defendants’ implementation of the federal funding freeze was contrary to law, ultra vires, and arbitrary and capricious. Under the APA, a court must “hold unlawful and set aside agency action, findings, and conclusions” if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Because this standard is “quite narrow: a reviewing court ‘may not substitute its judgment for that of the agency, even if it disagrees with the agency’s conclusions.’” Atieh v. Riordan, 797 F.3d 135, 138 (1st Cir. 2015) (quoting River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st Cir. 2009)). Therefore, a reviewing court must uphold an agency’s decision if it is: (1) devoid of legal errors; and (2) “supported by any rational review of the record.” Mahoney v. Del Toro, 99 F.4th 25, 34 (1st Cir. 2024) (quoting Atieh, 797 F.3d at 138). The Court will first discuss whether the Defendants’ actions were contrary to law and then turn to whether such acts were arbitrary and capricious.

b. Contrary to Law and Ultra Vires Actions

The States assert that the Defendants acted contrary to law and exceeded their statutory authority when imposing the challenged federal funding freeze. “When an executive agency administers a federal statute, the agency’s power to act is ‘authoritatively prescribed by Congress.’” City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir. 2020) (quoting City of Arlington v. FCC, 569 U.S. 290, 297 (2013)). Therefore, “an agency literally has no power to act ... unless and until Congress confers power upon it.” Id. (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374, (1986)). Any action an agency takes that is beyond the limits of its statutory authority is ultra vires and violates the APA. Id.

The statutory scheme governing federal appropriations are at the forefront of the States’ ultra vires and “contrary to law” claims against the Agency Defendants. The States contend that the ICA13 permits the Executive to defer or decline the expenditure of appropriated federal funds only under certain limited conditions that are not present here. See ECF No. 67 at 45, 54-55. They highlight that such an expenditure deferral cannot be made based on policy reasons but only on the permissible bases listed under the ICA. See id. at 54 (citing 2 U.S.C. § 684(b)); Mem. of Gen. Accountability Off., Office of Management and Budget—Withholding of Ukraine Security Assistance, B-331564, at 6 (Jan. 16, 2020), https://perma.cc/6TMT-3CH2. The States also note that the ICA requires the Executive to send a “special message” to Congress explaining proposed deferrals. Id. at 55 (2 U.S.C. § 684(a)). Thus, the States argue that the federal funding freeze exceeded the Defendants’ authority and contravened the ICA because: (1) the freeze, or deferral, was impermissibly based on “policy disagreement with Congressional priorities;” and (2) the Executive failed to send the required “special message” to Congress detailing the numerous proposed deferrals.

The ICA provides that “[w]henever the President, the Director of the [OMB], [or] the head of any [U.S.] department or agency . . . proposes to defer any budget authority provided for a specific purpose or project,” the President must send a “special message” to Congress detailing the proposed deferrals. 2 U.S.C. § 684(a). A “deferral of budget authority” includes: (1) “withholding or delaying the obligation or expenditure of budget authority . . . provided for projects or activities;” or (2) “any other type of Executive action or inaction which effectively precludes the obligation or expenditure of budget authority . . ..” Id. § 682(1)(A), (B). Further, the ICA enumerates only three bases in which a deferral is permissible: (1) “to provide for contingencies;” (2) “to achieve savings made possible by or through changes in requirements or greater efficiency of operations;” or (3) “as specifically provided by law.” Id. § 684(b). “No officer or employee of the United States may defer any budget authority for any other purpose.” Id. (emphasis added).

Here, the OMB Directive and Section 7(a) of the Unleashing EO, constituted a budget authority deferral because it commanded—and prompted—an indefinite withholding or delay of obligated funds. 2 U.S.C. § 682(1)(A). Thus, under the law, the President was required to send a special message to Congress detailing the proposed deferrals, such as the amounts deferred, the proposed deferral period, and the programs involved. See id. § 684(a). There is no evidence that such a special message detailing the indefinite, widespan deferrals of obligated funding was ever communicated to Congress. Accordingly, the States have substantiated a likelihood of success in proving that the Executive’s actions were contrary to law when bringing about a deferral of budget authority without sending a special message to Congress as the ICA requires.

The States also raise that “the Funding Freeze violates the specific statutes in which Congress mandated that funding be used in a specific manner according to specific terms.” ECF No. 67 at 55. They assert that many federal funding streams are so-called “categorical” or “formula” grants that Congress directed the Executive to provide to the States based on “enumerated statutory factors, such as population or the expenditure of qualifying State funds.” Id. (citing City of Los Angeles v. Barr, 941 F.3d 931, 934-35 (9th Cir. 2019)). Thus, the States contend that Congress’s specific directives in the statutory and regulatory schemes that govern such “formula” funding streams are inconsistent with the sweeping authority the Defendants have asserted in carrying out the federal funding freeze. Id. at 48, 55-56.

The States have underscored clear examples in which Congress has appropriated funds to federal programs and has strictly prescribed how those funds must be expended. For example, the IIJA appropriated over $14 billion in grants for the States’ Clean Water revolving funds from 2022 to 2026. IIJA, Pub. L. No. 117-58, § 50210, 135 Stat. 429, 1169 (2021). Those funds are a creature of a separate statute—the Federal Clean Water Act—which instructs the Environmental Protection Agency (“EPA”) that it “shall make capitalization grants to each State,” via formula grants, to establish and support water pollution control revolving funds for certain enumerated objectives and policy goals. 33 U.S.C. §§ 1381(a), (b); 1383(c); 1384(a), (c)(2).

Additionally, the IRA established a program to subsidize heat pump systems purchases, instructing the DOE Secretary that they “shall reserve funds . . . for each State energy office” based on an allotment formula. 42 U.S.C. § 18795a(a)(2)(A)(i) (emphasis added). Further, a climate pollution reduction grant under the IRA directed that the EPA “shall make a grant to at least one eligible entity in each State for the costs of developing a plan for the reduction of greenhouse gas air pollution . . ..” 42 U.S.C. § 7437(b). Congress has instructed other agencies to provide the States with federal funding using a mandatory fixed formula. See e.g., 23 U.S.C. § 104(a)(1), (b), (c) (instructing that the Transportation Secretary “shall” distribute federal highway funds based on mandatory apportionment formulas); 42 U.S.C. §§ 300x(a), 300x-7(a), 300x-21(a), 300x-33(a) (directing that the Health and Human Services Secretary “shall make” or “shall determine the amount of” grants to States for mental health and substance abuse treatment based on fixed statutory formulas).

These are a few examples of funding streams where Congress has mandated that the Executive spend appropriated funds according to a prescribed statutory formula, thus leaving agency Secretaries with no discretion to deviate from such formula. See ECF No. 67 at 6-11, 48-50; see also ECF No. 147 at 9-10. Yet the Agency Defendants halted the disbursement of these formula grants when freezing appropriated funds to ensure spending conformed with the President’s policy priorities. See e.g., ECF Nos. 68-35 ¶ 20 (California’s Water Resources Control Board unable to draw down funds under existing Clear Water State Revolving Funds grant agreements on January 31); 68-123 ¶ 4, 9 (Colorado unable to draw down funds for the IRA climate pollution reduction grant); see also ECF No. 68-124 at 2 (DOE memorandum announcing that “[a]ll funding and financial assistance . . . shall not be announced, approved, finalized, modified, or provided until a review of such takes place to ensure compliance with . . . Administration policy.”).

But “[a]bsent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals.” City & Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1235 (9th Cir. 2018). There is sufficient evidence that, in implementing the funding freeze, the Agency Defendants withheld funding that Congress did not tie to compliance with the President’s policy priorities in the OMB Directive and the Unleashing EO. Accordingly, the States have substantiated a likelihood of success on the merits that the Agency Defendants acted “not in accordance with the law”—in violation of the APA—when exceeding their statutory authority to carry out a categorical federal funding freeze. 5 U.S.C. § 706(2)(A).

c. Arbitrary and Capricious

Next, the States argue that the challenged federal funding freeze is arbitrary and capricious because it is not “reasonable or reasonably explained.” ECF No. 67 at 56 (quoting Fed. Commc’ns Comm’n v. Prometheus Radio Project, 592 U.S. 414, 423 (2021)). The States assert that the Agency Defendants did not provide a satisfactory explanation for the funding freeze and explained only that the freeze was aimed at helping the President achieve his policy priorities. ECF No. 67 at 56. The States contend that achieving such priorities “cannot come in the form of an across-the-board directive that contravenes numerous statutory provisions without explanation of how that action comports with applicable statutory or regulatory commands or factors relevant under those authorities.” Id. Further, the States allege that the Defendants disregarded the harmful consequences of the funding freeze, particularly the danger to “critical services [upon which] millions of Americans rely.” Id. at 56-57. Lastly, the States argue that the freezing of all funds appropriated under the IRA and the IIJA was substantively unreasonable because it lacks support in law and contravenes statutory text. Id. at 57.

The Defendants counter that the OMB Directive adequately explained the goals of the funding freeze, which was “to effectuate the President’s Executive Orders and ‘safeguard valuable taxpayer resources.’” ECF No. 113 at 57 (citing OMB Directive at 1). Further, the Defendants assert that the OMB Directive rationally connected the temporary pause to those stated objectives when explaining that the pause was needed to give “the Administration time to review agency programs and determine the best [funding uses] consistent with the law and the President’s priorities.” Id. at 57-58 (citing OMB Directive at 2). They highlight that the OMB Directive explicitly orders agencies to act “consistent with the law” six times and thus agencies were not directed to contravene their statutory authorities. Id. at 58.

Moreover, the Defendants argue they did consider important aspects of the problem because the OMB Directive highlighted the problem—the “significant amount of money” spent each year on financial assistance—and merely directed agencies to assess the problem by reviewing which assistance may be impacted by the President’s order. Id. Additionally, they assert that they considered the practical consequences that would flow and took steps to mitigate them because the OMB Directive: (1) exempted assistance provided directly to individuals from the pause; (2) noted that the OMB could grant exceptions on a case-by-case basis; (3) directed only a temporary pause; and (4) provided a delayed effective date. Id. at 58-59.

A decision is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’” Melone v. Coit, 100 F.4th 21, 29 (1st Cir. 2024) (Craker v. DEA, 714 F.3d 17, 26 (1st Cir. 2013)). The Court finds that the Defendants have not provided a rational reason that the need to “safeguard valuable taxpayer resources” is justified by such a sweeping pause of nearly all federal financial assistance with such short notice. Rather than taking a deliberate, thoughtful approach to finding these alleged unsubstantiated “wasteful or fraudulent expenditures,” the Defendants abruptly froze billions of dollars of federal funding for an indefinite period. It is difficult to perceive any rationality in this decision—let alone thoughtful consideration of practical consequences—when these funding pauses endanger the States’ ability to provide vital services, including but not limited to public safety, health care, education, childcare, and transportation infrastructure. See ECF No. 67 at 24-34, 58-61.

Further, the mere twenty-four hours that the OMB gave agencies to discern which of thousands of funding freezes must or must not be paused flouts the Defendants’ arguments that either the “delayed” effective date or the “consistent with the law” instruction mitigated the harm that the pause caused. The OMB Directive essentially ordered agencies to effectuate the blanket pause and then decide later which funding streams they actually had lawful authority to withhold. See e.g., ECF No. 68-55 ¶¶ 27-28 (New York’s Office of Children and Family Services unable to draw down funds from PMS on morning January 28—faced with message stating: “Due to [EOs] regarding potentially unallowable grant payments, PMS is taking added measures to process payments. Reviews of applicable programs and payments will result in delays and/or rejections of payments.”). Again, the Defendants have not proffered a rational reason for how their alleged goal of safeguarding taxpayer funds justified a de facto suspension of nearly all federal funding. Thus, the States have substantiated a likelihood of success of proving that the Agency Defendants’ implementation of the funding freeze was arbitrary and capricious.

Further, the Agency Defendants’ categorical freeze of funding appropriated under the IRA and IIJA is also likely substantively unreasonable in violation of the APA. Generally, substantive unreasonableness may arise when an agency “exercise[s] its discretion unreasonably.” Multicultural Media, Telecom & Internet Council v. Fed. Commc’ns Comm’n, 873 F.3d 932, 936 (D.C. Cir. 2017) (Kavanaugh, J.). As discussed above, the IRA and IIJA appropriated funds to certain programs and funding streams that mandated expenditures based on fixed formulas—not the contravening policies of the President. Based on the record, the Agency Defendants implemented sweeping pauses of IRA/IIJA appropriated funds—under the OMB Directive and Unleashing EO—despite various fundings streams being governed by statutory commands that did not give discretion to withhold funds based on the policy initiatives the Executive sought to further. See e.g., ECF Nos. 48-1 ¶¶ 4-5 , 68-124 at 2; 68-123 ¶¶ 6-10, 26; 68-123 ¶ 36; 68-92 ¶ 15. Thus, the States have substantiated a likelihood of success on illustrating that the Agency Defendants unreasonably exercised its discretion, in violation of the APA, when broadly freezing IRA/IIJA appropriated funds in contravention of the underlying statutory funding commands.

In sum, the Agency Defendants have failed to offer rational reasons for finding that the policy objectives stated in the OMB Directive and Section 2 of Unleashing EO justified the indefinite pause on nearly all federal funding. The breadth and immediacy of the funding freeze and the catastrophic consequences that flowed reflects the Agency Defendants’ failure to: (1) meaningfully consider the “important aspect[s] of the problem[s]”—namely the plain implications of withholding trillions of dollars of federal financial assistance; and (2) reflect if the freeze fell within the bounds of their statutory authority. Accordingly, the States have shown a likelihood of success on their APA claims (Counts I and II). The Court “need go no further.”14 It turns now to whether the States satisfy the other requirements for injunctive relief.15

C. Irreparable Harm

“District courts have broad discretion to evaluate the irreparability of alleged harm and to make determinations regarding the propriety of injunctive relief.” K–Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915 (1st Cir. 1989) (quoting Wagner v. Taylor, 836 F.2d 566, 575–76 (D.C. Cir. 1987)). There are “relevant guideposts” to guide that discretion—“the plaintiff’s showing must possess some substance” and “the predicted harm and the likelihood of success on the merits must be juxtaposed and weighed in tandem.” Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 19 (1st Cir. 1996) (citations omitted). The Court found at the TRO stage that the States would suffer irreparable harm if the Defendants’ blanket freeze of appropriated and obligated funds, which currently has no end date, were not enjoined. After a full briefing and hearing on the merits where the Defendants presented no answer, no evidence, and no counter to the States’ extensive evidence of still frozen funds and the harm resulting, the Court finds that the unrefuted evidence shows irreparable and continuing harm.

In their Complaint, preliminary injunction motion, and during the argument thereon, the States laid out scores of examples of obligated funding and the harm that withholding such funding has caused. It is so obvious that it almost need not be stated that when money is obligated and therefore expected (particularly money that has been spent and reimbursement is sought) and is not paid as promised, harm follows—debt is incurred, debt is unpaid, essential health and safety services stop, and budgets are upended. And when there is no end in sight to the Defendants’ funding freeze, that harm is amplified because those served by the expected but frozen funds have no idea when the promised monies will flow again.

Defendants concede that there is no date written into the EOs or the OMB Directive or instructions when the freeze will end but argues that the funding recipients can be assured that it will end eventually, presumably when the agencies have reviewed all of the funding and made decisions about whether any or all or some align with how the President wants that money spent. The States are not reassured by this vague promise, and neither is the Court. This is particularly true where the States had no notice of a potential freeze so they could plan, States appear to have little to no information about how any funding review is being conducted and by whom, and even though the frozen funds were obligated and owed, States had no chance to justify and protect the funding that they were granted by statute, regulation, or grant contract. See, e.g., ECF Nos. 68-28 (receiving no response from EPA officials to inquiry about grants missing from ASAP); 68-33 (same). As the Court observed, these arbitrary and capricious actions violate the APA, with consequences that harm not only to our orderly system of government but also inflict direct pecuniary harm to the States and their residents.

The States have presented unrebutted evidence of the harm they are suffering and will continue to suffer due to this categorical funding freeze. The Court will not recount each instance but will summarize the “highlights” and note that while the States are the plaintiffs in this Court, it is their citizens, often our most vulnerable citizens, who are enduring much of the harm resulting from these arbitrary and capricious acts. The Court makes the following factual findings based on the record evidence.

Head Start and other childcare programs have been impacted. As of February 5, 2025, many Head Start providers were still having difficulties accessing federal funds and are considering layoffs, reductions in service, and even closures. See ECF Nos. 68-76; 68-41. Some States would have to pay more in provider subsidies if federally-funded Head Start childcare does not resume. ECF No. 68-111. Other federally-funded childcare, child welfare services, and early childhood services are impacted. See ECF Nos. 68-76; 68-36; 68-86; 68-116; 68-55; 68-68; 69-39; 68-43.

A freeze in federal funding for education “would catastrophically disrupt student instruction[,]” including for low-income students and children with disabilities. ECF No. 68-89 ¶ 8; see also ECF Nos. 68-75; 68-43; 68-116. A freeze impacts state universities who receive federal funding who may be forced to stop vital research projects. “Even a temporary pause in funding could require the University to shutter or reduce programs, including mission-critical research activities, instruction, and public service activities and to furlough and/or lay off employees.” ECF Nos. 68-112 ¶ 7; 68-121 ¶ 7 (“Research projects that require daily activities and meticulous record-keeping may be ruined, setting back the research enterprise and wasting the federal investment.”).

This funding freeze affects critical healthcare provided through federally-funded Medicaid programs, the Children’s Health Insurance Program (“CHIP”), and other health care programs. ECF Nos. 68-31, 68-32; 68-74; 68-105; 68-24. Loss of Medicaid funding would “significantly impede the delivery of basic health care services to . . . low-income, elderly, and pregnant individuals, as well as individuals with disabilities.” ECF No. 68-32 ¶ 13.

The funding freeze also impacts law enforcement and public safety agencies who also rely on federal funding. Federal grant programs support state and local law enforcement agencies, community violence, and crisis interruption programs, and programs addressing sexual violence, among many other crucial services. ECF Nos. 68-102, 68-18. In an evident and acute harm, with floods and fires wreaking havoc across the country, federal funding for emergency management and preparedness would be impacted. ECF Nos. 68-111; 68-39. To be sure “[i]f a major disaster were to occur while federal emergency management funds . . . are frozen. . . [p]ending preparedness training and mitigation work may come to a stop and the incapacitation of federally-funded emergency management programs and services that would result from a federal funding freeze could very well lead to increased loss of life and injury …, slowed emergency response times, greater risks to first responders, greater property damage, and delays to community recovery and rebuilding.” ECF No. 68-99 ¶ 13.

The freeze affects job training, workforce development, and unemployment programs and the ripple effect of cutting off this funding is felt throughout the States. ECF Nos. 68-94; 68-54; 68-70; 68-104; 68-39; 68-88; see ECF No. 68-29 ¶ 27 (harms to veterans seeking to acquire job skills and employment, and others seeking career and employment training services, reduced level of service in processing and approving unemployment insurance claims and paying out unemployment insurance benefits); ECF No. 68-30 ¶ 13 (harms to workers seeking to participate in job apprenticeship programs).

The freeze also affects federal funds for critical transportation infrastructure, such as the $60 million in promised reimbursement for the costs of removal and salvage of debris from the Francis Scott Key Bridge for which Maryland is awaiting. ECF No. 68-66 ¶¶ 5-7 . Other States have likewise entered into contracts for projects to be paid for with obligated funds. ECF Nos. 68-77; 68-31; 68-66; 68-80; 68-39. Without these funds, States may have to suspend, delay, or cancel projects. ECF No. 68-77.

IIJA and IRA funding programs are subject to the freeze and threaten the loss of essential services to protect the health, safety, and welfare of the States’ residents. See, e.g., ECF No. 68-28 (California Air Resource Board unable to access granted federal funding aimed at monitoring air toxins); ECF No. 68-42 (frozen funds include those awarded to South Coast Air Quality Management District for programs reducing air pollution from freight corridors and warehousing hubs); ECF No. 68-113 (funding freeze threatens to pause important contamination remediation efforts; contracted-for brownfield cleanup work being “held up” by funding freeze); ECF No. 68-106 (frozen funds designated for monitoring of air pollution); ECF No. 68-92 (New York State Department of Environmental Conservation denied funding reimbursement for plugging of orphaned oil and gas wells due to alleged inconsistency with OMB’s Unleashing Guidance).

Congress enacted these statutes and appropriated these funds for legitimate reasons, and the Defendants’ categorical freeze, untethered to any statute, regulation, or grant term, frustrates those reasons, and causes significant and irreparable harms to the States. See, e.g., ECF No. 68-118 (pause in funding streams would have “massive impact,” require resource shifts, and interfere with mission); ECF No. 68-59 (without grant funding, “small public water systems … will continue to rely on drinking water polluted by PFAs and/or other emerging contaminants,” cleanup of oil and hazardous materials contamination in post-industrial communities would likely be abandoned, and state efforts to monitor and mitigate air pollution would be hampered); ECF No. 68-83 (“North Carolina will lose the benefits of over $117 million in conservation projects” if the freeze is not lifted, leaving its residents “more vulnerable to flooding and wildfires.”); ECF No. 68-40 (state would have to regain trust of contractors and homeowners after reimbursement delays); ECF No. 68-122 (funding freeze causes uncertainty, harming Colorado’s ability to provide services to Coloradans relying on federal funds for installation of energy-saving appliances; continued delay will cause homeowners to forfeit improvements to homes that would cut energy bills); ECF No. 68-95 (freezing of IIJA Grid Resilience Innovations Partnerships funding in New York will delay electric grid resilience improvements, “potentially increasing the risk of damage to the grid in a severe weather event and causing additional harm to small municipal electric utilities.”); ECF No. 68-59 (pause in Long Island Sound Program Grant would impede remediation of nitrogen and other pollution); ECF No. 68-79 (frozen $25 million grant funds for replacing lead service lines to residential homes “put[s] the safety of Minnesotans’ drinking water at risk”); ECF No. 68-31 (health care, emergency relief, highway safety, and billions of dollars in water infrastructure, transportation, and broadband infrastructure projects); ECF No. 68-30 (federal funding pause could render California government entities unable to deliver numerous services to increase workplace health and safety); ECF No. 68-35 (interruption in funding threatens California Water Board’s ability to come into compliance with federal safe drinking water standards, including ongoing work to remove lead from water service lines).

Even though some funding has begun to flow again after the TRO entered, the States have presented evidence of harm resulting from the chaos and uncertainty that the Defendants’ arbitrary decision to categorically freeze billions of dollars in federal funding. See, e.g., ECF Nos. 68-40; 68-44 (Connecticut’s Department of Energy and Environmental Protection “unable to recruit and hire future staff” to support Solar for All Program due to “budgetary uncertainty”); 68-107 (uncertainty has led Brown University’s research community to suspend orders of large research equipment, which over time will negatively impact the ability of researchers to conduct their studies); 68-85 (uncertainty surrounding funding forcing New Jersey Board of Public Utilities to decide between delaying Solar for All Program or risking no reimbursement); 68-27 (uncertainty over grants has disrupted California agency’s “ability to budget, plan… and carry out its mission”); see also Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 597959, at *18 (D.D.C. Feb. 25, 2025) (“While funds have resumed flowing to some recipients, that does not erase the imminence or irreparability of what another pause would entail.”).

Even with the Court’s TRO in place, state agencies continue to experience interruptions to access and inconsistent ability to draw down funds from grants funded by IIJA and IRA appropriations. Some funding has been restored in federal funding portals, but others appear to have been removed. See, e.g., ECF Nos. 68-28; 68-35; 68-33; 68-59. And nothing in the Defendants’ briefing or oral presentation reassures the States that federal agencies, under the Executive’s directives, will fulfill their funding obligations in the future. See e.g., ECF Nos. 68-20 (Arizona has incurred obligations over $16 million in reliance on Home Electrification and Appliance Rebate award, of which over $15 million has yet to be reimbursed); 68-49 (University of Hawaii has been paying five employees out of pocket, without reimbursement to which they are entitled); 68-106 (elimination of $3 million Climate Pollution Reduction Grants (“CPRG”) would make statutory compliance more costly); 68-61 (if not reimbursed through CPRG, Massachusetts may be forced to cancel vendor contract); 68-42 (California’s South Coast Air Quality Management District and its subgrantees face risks that EPA would refuse to reimburse incurred work and costs). This litany of struggles experienced in the last seven weeks unquestionably constitute irreparable harm to the States.

D. Balance of the Equities and Public Interest

The Court need not say much more on the final two factors than it did when it granted the TRO as the more developed evidentiary record continues to overwhelmingly show that the balance of equities weighs heavily in favor of granting the States’ preliminary injunction motion and the public interest is supported by “preserv[ing] the status quo.” Francisco Sanchez v. Esso Standard Oil Co., 572 F.3d 1, 19 (1st Cir. 2009).

The Defendants are not harmed where the order requires them to disburse funds that Congress has appropriated to the States and that they have obligated. The Court’s order does not prevent the Defendants from making funding decisions in situations under the Executive’s “actual authority in the applicable statutory, regulatory, or grant terms,” ECF No. 111 at 7; rather it enjoins agency action that violates statutory appropriations and obligations. An agency is not harmed by an order prohibiting it from violating the law.

On the other hand, without injunctive relief to pause the categorical freeze, the funding that the States are due and owed creates an indefinite limbo. Without the injunction, Congressional control of spending will have been usurped by the Executive without constitutional or statutory authority. While some of the funding has begun to flow, and some only after the Court issued an order to enforce the TRO, the States continue to face substantial uncertainty about whether Defendants will meet their contractual obligations under several statutorily appropriated programs, including those under the IIJA and IRA. ECF Nos. 68-93; 68-105; 68-34; 68-101; 68-100; 68-114; 68-39; 68-80; 68-28; 68-40; 68-35; 68-61; 68-95; 68-23; 68-49; 68-60; 68-51; 68-48; 68-106; 68-108; 68-52; 68-83; 68-72; 68-59; 68-42; 68-85; 68-56.

In light of the unrebutted evidence that the States and their citizens are currently facing and will continue to face a significant disruption in health, education, and other public services that are integral to their daily lives due to this overly broad pause in federal funding, the Court finds that the public interest lies in maintaining the status quo and enjoining any categorical funding freeze.

IV. PRELIMINARY INJUNCTION

A preliminary injunction is appropriate, and the Court ORDERS as follows:

1. The Agency Defendants16 are enjoined from reissuing, adopting, implementing, giving effect to, or reinstating under a different name the directives in OMB Memorandum M-25-13 (the “OMB Directive”) with respect to the disbursement and transmission of appropriated federal funds to the States under awarded grants, executed contracts, or other executed financial obligations.

2. The Agency Defendants are enjoined from pausing, freezing, blocking, canceling, suspending, terminating, or otherwise impeding the disbursement of appropriated federal funds to the States under awarded grants, executed contracts, or other executed financial obligations based on the OMB Directive, including funding freezes dictated, described, or implied by Executive Orders issued by the President before rescission of the OMB Directive or any other materially similar order, memorandum, directive, policy, or practice under which the federal government imposes or applies a categorical pause or freeze of funding appropriated by Congress. This includes, but is by no means not limited to, Section 7(a) of Executive Order 14154, Unleashing American Energy.

3. The Defendants must provide written notice of this Order to all federal departments and agencies to which the OMB Directive was addressed. The written notice shall instruct those departments and agencies that they may not take any steps to implement, give effect to, or reinstate under a different name or through other means the directives in the OMB Directive with respect to the disbursement or transmission of appropriated federal funds to the States under awarded grants, executed contracts, or other executed financial obligations.

4. The foregoing written notice shall also instruct those agencies to release and transmit any disbursements to the States on awarded grants, executed contracts, or other executed financial obligations that were paused on the grounds of the OMB Directive and Executive Orders included by reference therein or issued before the rescission of the OMB Directive.

5. In light of the States’ second motion to enforce the TRO, ECF No. 160, Defendant Federal Emergency Management Agency (“FEMA”) shall file a status report on or before March 14, 2025, informing the Court of the status of their compliance with this order.

Additionally, based on its findings that the States: (1) are entitled to a preliminary injunction; and (2) will be irreparably harmed without this Order, the Court DENIES the Defendants’ request to stay this Order pending appeal to the First Circuit. See ECF No. 113 at 65-66. Further, the Court DENIES as moot the Plaintiffs’ motion to enforce the TRO because this Order’s issuance renders the TRO expired. ECF No. 160.

IT IS SO ORDERED.

_________________________________
John J. McConnell, Jr.
Chief Judge
United States District Court for the District of Rhode Island
March 6, 2025

Notes:

1 “This is what it all comes down to: we may choose to survive as a country by respecting our Constitution, the laws and norms of political and civic behavior, and by educating our children on civics, the rule of law, and what it really means to be an American, and what America means. Or, we may ignore these things at our . . . peril.” A.C. v. Raimondo, 494 F. Supp. 3d 170, 181 (D.R.I. 2020), aff'd sub nom. A.C. by Waithe v. McKee, 23 F.4th 37 (1st Cir. 2022).

2 The Court later issued an order on February 10, making clear that the TRO also applied to funds paused under the Unleashing EO and the Unleashing Guidance. See ECF No. 96.

3 The States filed another motion to enforce the TRO on February 28, 2025 relating to FEMA funds that continue to be frozen despite the Court’s TRO and subsequent clarifying orders. ECF No. 160. The Court will address that motion later in this Order.

4 After the Defendants responded to the States’ preliminary injunction motion, the States filed an Amended Complaint to explicitly include challenges to the Unleashing Guidance, the related Unleashing EO, and the general implementation of funding freezes based on the President’s EO. See ECF No. 114 ¶¶ 192, 203-04, 208-09, 215-17, 225-26, 231-32, 237-38, 244-46.

5 The injunction referenced in the Press Secretary’s statement is the administrative stay another federal court issued against the OMB Directive’s instructions to agencies to “pause ... disbursement of Federal funds under all open awards.” See Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 314433, at *2 (D.D.C. Jan. 28, 2025).

6 Additionally, various funding disruptions that occurred after the Court’s TRO—and that continue to the present day—underscore how the Directive’s rescission does not suffice as “voluntarily” providing the States all the prospective relief they request. See ECF No. 96 at 3.

7 Even if the States’ claims were targeted at these “thousands” of funding streams, their inability to feasibly take a program-by-program, grant-by-grant approach to raising their challenges is the consequence of the Defendants’ broad, sweeping efforts to indefinitely stop nearly all faucets of federal funding from flowing to carry out the President’s policy priorities, without regard to Congressional authorizations. One cannot set one’s house on fire and then complain that the firefighters smashed all the windows and put a hole in the roof trying to put it out.

8 See e.g., ECF Nos. 68-99 ¶ 11, 12; 68-18 ¶¶ 17-19; 68-102 ¶¶ 4-6 (effects on public safety and emergency management services); 68-31 ¶¶ 6, 7; 68-32 ¶ 13 (effects on health care services); 68-75 ¶¶ 6-8; 68-76 ¶ 5; 68-89 ¶ 5 (effects on State education services); 68-113 ¶¶ 45, 60-61; 68-95 ¶¶ 8-13; 66-123 ¶¶ 5, 29 (effects on environmental safety and energy development); 68-76 ¶¶ 7-19; 68-86 ¶¶ 9-10; 68-116 ¶¶ 15-16, 21 (effects on childcare services and child welfare).

9 “Agency Defendants” refers to the federal executive agencies and departments that are parties in this suit.

10 See e.g., ECF Nos. 68-100 ¶ 8 (Oregon unable to access Medicaid federal funding system for entire day on January 28); 68-93 ¶ 6 (New York State Comptroller Office unable to draw over $70 million in obligated federal funds); 68-118 ¶ 18 (Washington’s DCYF unable to draw down funds on morning of January 28—faced with message from federal payment system stating, “Temporary Pause on Disbursement of Federal Financial Assistance”); 68-55 ¶¶ 27-28 (New York’s DCFS unable to draw down funds from PMS on morning January 28—faced with message stating: “Due to [EOs] regarding potentially unallowable grant payments, PMS is taking additional measures to process payments. Reviews of applicable programs and payments will result in delays and/or rejections of payments.”).

11 While the Defendants claim that the Directive and the EOs required the agencies to pause funding and impose restriction on obligated funds consistent with the law, the undisputed evidence before the Court is that adding the “consistent with the law” caveat was nothing more than window dressing on an unconstitutional directive by the Executive. This is clear because when the Court clarified its TRO, when faced with evidence that the Defendants continued to freeze obligated funding, the money flowed once again.

12 The most that the Unleashing Guidance advances is an attempt to limit the pause of IRA/IIRA to only to “funds supporting programs, projects, or activities that may be implicated by the policy established in section 2 of the [Unleashing] order.” See ECF No. 68-13.

13 The Defendants assert that because the ICA does not provide for a private right of action, the statute is “generally not enforceable through an APA suit.” ECF No. 113 at 44 (citing Gen. Land Off. v. Biden, 722 F. Supp. 3d 710, 734-35 (S.D. Tex. 2024)). The Court declines to adopt such a narrow view of what it may consider when determining whether an agency has acted “not in accordance with law” under the APA. In the Court’s view, “not in accordance with law,” refers to “any law.” F.C.C. v. NextWave Pers. Commc’ns Inc., 537 U.S. 293, 300 (2003).

14 The Honorable Bruce M. Selya’s body of over 1800 written opinions, passim.

15 Under the constitutional avoidance doctrine, “federal courts are not to reach constitutional issues where alternative grounds for resolution are available.” Vaquería Tres Monjitas, Inc. v. Pagan, 748 F.3d 21, 26 (1st Cir. 2014) (quoting Am. Civil Liberties Union v. U.S. Conference of Cath. Bishops, 705 F.3d 44, 52 (1st Cir. 2013)). Thus, because the Court finds the challenged agency actions violate the APA, the Court will not decide the States’ constitutional claims (Counts IV-VIII), although the Court has noted in its introduction to this decision that the constitutional balance of powers issues that arise from the Executive’s actions in this case are serious.

16 “Agency Defendants” refers to the federal executive Agencies and Departments that are parties in this suit.