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3. Suits seeking continued US funding will likely…

U.S. Supreme Court

Suits seeking continued US funding will likely be routed to Court of Federal Claims after SCOTUS decision, law prof says

By Debra Cassens Weiss

April 7, 2025, 11:42 am CDT

A decision on Friday by the U.S. Supreme Court in a challenge to an education-grant freeze will likely redirect many other lawsuits regarding Trump administration spending decisions to the Court of Federal Claims, according to a law professor.

The Supreme Court’s 5-4 decision allowed the Trump administration to freeze $65 million in education-related grants while a suit filed by eight states is litigated.

The Supreme Court found that the government was likely to succeed in its argument that a district court lacked jurisdiction to order the payment of money under the Administrative Procedure Act. The law waives government immunity but not for court orders to enforce a contractual obligation to pay money along the lines of the order by U.S. District Judge Myong J. Joun of the District of Massachusetts, the Supreme Court said.

Instead, the Court of Federal Claims has jurisdiction to hear such suits, the high court said.

Writing at the Volokh Conspiracy, Josh Blackman, a professor at the South Texas College of Law in Houston, said the ruling “should quickly knock out many other ‘spending’ cases and redirect them to the Court of Federal Claims. This is a court most people have never heard of but will soon become very important.”

The Supreme Court’s decision stayed a March 10 temporary restraining order issued by Joun, report Politico, Reuters, Howe on the Court, the Washington Post and the New York Times.

Chief Justice John Roberts dissented from the decision but did not issue or join a dissent. The Supreme Court’s three liberal justices also dissented.

The Trump administration had canceled the grants because they included diversity, equity and inclusion initiatives. The states that sued are California, Massachusetts, New Jersey, Colorado, Illinois, Maryland, New York and Wisconsin.

Joun’s order had required the government to pay past-due grant obligations and to continue paying the obligations as they accrue. The judge based the decision on a finding that the challengers were likely to succeed on their claim that the freeze was arbitrary and capricious in violation of the Administrative Procedure Act.

The Supreme Court disagreed with that finding.

Generally, TROs cannot be appealed, but the order issued by Joun was more akin to a preliminary injunction, the majority said.

In a dissent, Justice Elena Kagan said the general rule is that Administrative Procedure Act suits go to federal district courts, even when a remedial order may result in the disbursement of funds.

“So the court’s reasoning is at the least underdeveloped, and very possibly wrong,” she said.

Kagan also criticized the majority for making a decision based on the government’s emergency application.

“The risk of error increases when this court decides cases—as here—with barebones briefing, no argument and scarce time for reflection,” she wrote.

Justice Ketanji Brown Jackson wrote a separate dissent, joined by Justice Sonia Sotomayor.

“It is beyond puzzling that a majority of justices conceive of the government’s application as an emergency,” Jackson wrote. “It is likewise baffling that anyone is persuaded that the equities favor the government when the government does not even argue that the lower courts erred in concluding that it likely behaved unlawfully.”

The decision is Department of Education v. California.

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3. After DC Circuit reinstates fired agency…

Executive Branch

After DC Circuit reinstates fired agency board members, chief justice pauses action

By Debra Cassens Weiss

April 9, 2025, 9:11 am CDT

Updated: Chief Justice John Roberts has temporarily blocked reinstatement of fired board members of two independent agencies after an en banc federal appeals court ruled in their favor Monday.

On Wednesday, Roberts issued an administrative stay that paused reinstatement of Cathy Harris to the Merit Systems Protection Board and Gwynne A. Wilcox to the National Labor Relations Board, Law360 reports.

In its April 7 order, the full U.S. Court of Appeals for the District of Columbia Circuit vacated a three-judge panel decision that allowed Trump to remove Harris and Wilcox.

The NLRB enforces labor laws, while the MSPB considers workplace disputes by federal employees. Boards overseeing the agencies resolve appeals following decisions by administrative law judges.

The D.C. Circuit’s en banc order revived a reinstatement order by U.S. District Judge Beryl Howell of the District of Columbia, Law.com reports.

The en banc court cited a 1935 U.S. Supreme Court decision, Humphrey’s Executor v. United States, and a 1958 Supreme Court decision, Wiener v. United States. Those decisions upheld restrictions on removal of government officials on multimember adjudicatory boards, the appeals court said.

“The Supreme Court’s repeated and recent statements that Humphrey’s Executor and Wiener remain precedential require denying the government’s emergency motions for a stay pending appeal,” the en banc majority said.

Four out of 11 en banc judges dissented.

The case is Trump v. Wilcox.

Updated April 9 at 4:17 p.m. to include information on Chief Justice John Roberts’ administrative stay.

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3. ‘Stay out of my shorts,’ other discourteous…

Judiciary

‘Stay out of my shorts,’ other discourteous comments led to censure for New York judge

By Debra Cassens Weiss

April 10, 2025, 2:11 pm CDT

Updated: A New York judge who didn’t want to transition to new case-tracking systems has agreed to a censure for gratuitous and discourteous remarks that he made while expressing his displeasure to colleagues and to officials who transferred him to a new court.

The remarks by Judge Daniel L. Seiden of the Binghamton City Court in New York contributed to a hostile work environment, according to an April 8 press release by the New York State Commission on Judicial Conduct.

Seiden raised his voice and told the chief clerk and the deputy chief clerk to “stay out of my shorts” when they came to his office in April 2023 to discuss a change to a check-box case-history system, according to a March 28 determination and an agreed statement of facts signed in February.

Seiden said the “stay out of my shorts” comment was intended to convey “stay out of my business as a judge.”

Then when the administrative judge announced that the court was going to implement a new web-based case-filing system, Seiden declared in an email that he will always ask the clerks for physical files when he is on the bench.

Seiden emailed senior court officials in October 2024 after he was told of his reassignment.

“The game that you are playing, using an administrative trick to de facto remove me from my elected position for your own nefarious purposes, is a dangerous one: trying to get in the back door what you will probably never get through the front door, all the while depriving the citizens of Binghamton of their elected official while brazenly violating several state statutes,” he wrote.

He also said the officials’ “arrogance is breathtaking,” they “are utterly out of control and intoxicated by power and privilege,” and they used “administrative sleight of hand.”

During the ethics proceeding, Seiden was “cooperative and contrite,” according to the statement of facts. He has also completed civility training.

Seiden apologized to the clerks and judges for his “unprofessional remarks” and “appreciates that an apology to them at the time would have been appropriate,” the statement of facts said.

Robert H. Tembeckjian, the judicial conduct commission’s administrator, said in a statement judges must be patient, dignified and courteous.

“Petulant quarreling with colleagues is neither productive nor conducive to the administration of justice,” Tembeckjian said.

In a separate action, Seiden sought to be transferred back to the Binghamton City Court. The court to which he was reassigned is 45 miles from his residence, and his transfer there was arbitrary and capricious, he argued in a Jan. 7 mandamus petition that is pending in the Appellate Division’s Third Judicial Department of the New York Supreme Court.

The petition said Seiden’s statement to “stay out of my shorts” was misinterpreted as sexual in nature and may have been used to justify the July 23, 2024, transfer order, which was made without notice and without explanation. The same day that he received the order, he was escorted from the Binghamton City Court premises “in full view” of his colleagues, the petition said.

The petition also referenced “a corrosive culture in Binghamton City Court” because of the marriage of two officials that is “perhaps not technically nepotistic or illegal.”

A Feb. 25 letter indicated that the parties were in settlement negotiations.

Seiden declined the ABA Journal’s request for comment but informed the Journal in an email that he is scheduled to resume regular duties in the Binghamton City Court on April 28, and he is still working in the Cortland City Court in New York.

His judicial term expires in 2034, but he will have to retire at the end of 2028 because he turns 70 years old that year.

Hat tip to the Legal Profession Blog, which noted the censure.

Updated April 11 at 11:04 a.m. after Judge Daniel L. Seiden declined to comment and provided his return-to-office date. Updated April 11 at 2:29 p.m. to include information on Seiden’s mandamus petition.

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3. Job protections for administrative law judges…

Administrative Law

Job protections for administrative law judges are unconstitutional, DOJ concludes

By Debra Cassens Weiss

February 24, 2025, 2:17 pm CST

The U.S. Department of Justice has concluded that “multiple layers of removal restrictions” for administrative law judges are unconstitutional.

The decision was revealed in a Feb. 20 press release from the DOJ, a Feb. 20 letter to Republican U.S. Sen. Charles Grassley of Iowa and a Feb. 11 court filing, report Law360, Reuters and the New York Times.

The administrative law judges are protected by two laws, the letter says. One says administrative law judges can be removed “only for good cause established and determined by the Merit Systems Protection Board.” Another says board members may be removed by a president “only for inefficiency, neglect of duty or malfeasance in office.”

The laws violate a president’s authority under Article II of the Constitution by restricting their “ability to remove principal executive officers, who are in turn restricted in their ability to remove inferior executive officers,” the letter says.

Administrative law judges decide disputes in administrative hearings for executive branch agencies that include the Social Security Administration, the National Labor Relations Board, the U.S. Securities and Exchange Commission and the U.S. Patent and Trademark Office, according to Law360 and the New York Times.

The New York Times called the decision “the latest step in the administration’s unfolding assault on the basic structure of the federal government and on Congress’ power to insulate various types of executive branch officials in sensitive positions from political interference from the White House.”

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3. Averting immediate showdown, chief justice…

U.S. Supreme Court

Averting immediate showdown, chief justice pauses judge’s deadline for US to restore foreign-aid funds

By Debra Cassens Weiss

February 27, 2025, 10:36 am CST

The U.S. government doesn’t have to comply with a federal judge’s Wednesday night deadline to restore foreign-aid funds after Chief Justice John Roberts issued an administrative stay in the matter.

Roberts issued the temporary stay late Wednesday in two consolidated lawsuits challenging a 90-day freeze in funding for foreign assistance programs. A plaintiff in one of the suits is the ABA, which had “tens of millions of dollars” in federal funding frozen for foreign rule of law and human rights programs, its suit said.

The Washington Post, Reuters, NBC News, Law.com, SCOTUSblog and the New York Times are among the publications with coverage.

Plaintiffs in the suit consolidated with the ABA’s alleged Feb. 19 that government defendants showed “brazen defiance” of a Feb. 13 temporary restraining order requiring restoration of funding.

U.S. District Judge Amir H. Ali of the District of Columbia issued the Feb. 13 TRO. On Feb. 25, Ali issued a bench ruling setting the deadline at 11:59 p.m. Feb. 26 for compliance with his order requiring payment on completed contracts. The U.S. government immediately appealed.

Amir’s order appears to contemplate the immediate outlay of nearly $2 billion, according to the stay request filed with the Supreme Court by Acting U.S. Solicitor General Sarah Harris.

The government is committed to paying legitimate claims for work, and it is “undertaking significant efforts” toward that end, Harris said.

“What the government cannot do,” Harris wrote, “is pay arbitrarily determined demands on an arbitrary timeline of the district court’s choosing or according to extra-contractual rules that the court has devised. That mandate creates an untenable payment plan at odds with the president’s obligations under Article II to protect the integrity of the federal fisc and make appropriate judgments about foreign aid.”

The stay request argued that the suits amount to claims for breach of contract that should be heard by the U.S. Court of Federal Claims.

The cases are U.S. Department of State v. AIDS Vaccine Advocacy Coalition and Trump v. Global Health Council.

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3. Ruling in ABA lawsuit, federal judge blocks…

Administrative Law

Ruling in ABA lawsuit, federal judge blocks pause on foreign aid but does not order Trump to act

By Debra Cassens Weiss

February 18, 2025, 12:11 pm CST

A federal judge in Washington, D.C., has issued a temporary restraining order that allows some foreign assistance programs to continue, for now, in a lawsuit filed by the American Bar Association and other plaintiffs.

U.S. District Judge Amir H. Ali of the District of Columbia ruled Feb. 13 in two consolidated suits, report Law.com, the New York Times, NPR, NBC News and Law360. The ABA announced the decision in a Feb. 14 press release.

President Donald Trump froze the funding in a Jan. 20 executive order requiring a 90-day review to determine whether the foreign assistance programs should end or be modified.

“Defendants have not offered any explanation for why a blanket suspension of all congressionally appropriated foreign aid, which set off a shockwave and upended reliance interests for thousands of agreements with businesses, nonprofits and organizations around the country, was a rational precursor to reviewing programs,” wrote Ali, an appointee of former President Joe Biden.

Ali’s TRO bars the suspension of appropriated foreign assistance funds in connection with contracts, grants or other awards that were in existence Jan. 19. The TRO also bars stop-work orders in connection with those funding awards.

Ali’s decision applies to U.S. Secretary of State Marco Rubio, Office of Management and Budget Director Russell Vought and other government defendants but not to Trump.

Ali said the ABA “narrowed” its request for relief after the government “rightly highlighted the importance of respecting the president’s Article II power” during a hearing. An initial proposed TRO filed by the ABA and other plaintiffs asked Ali to order all the defendants, including Trump, to allow continued funding. A revised proposal no longer mentioned Trump.

The Feb. 11 suit had claimed that the administration’s actions were arbitrary and capricious in violation of the Administrative Procedure Act, a violation of the separation of powers, a violation of the Constitution’s take care clause and beyond a president’s powers.

Ali said the balance of equities favors the plaintiffs.

“Defendants have repeatedly, and rightly, emphasized the importance of respecting the president’s Article II power as it relates to foreign policy,” Ali wrote. “Plaintiffs, for their part, have emphasized the Constitution’s separation of powers, which also demands respect for Congress’ Article I role in legislating, including Congress’ choice to allow judicial review through the APA and other statutes constraining the executive branch, as well as Congress’ important role in appropriating funds.”

The ABA implements 19 programs funded by the U.S. Agency for International Development or “via subaward,” according to the Feb. 11 suit filed by the association and seven other plaintiffs. The ABA also implements 59 programs funded by the U.S. Department of State.

The ABA programs, administered through the ABA Center for Global Programs, support U.S. international interests by promoting the rule of law and human rights, the suit says.

“Plaintiff ABA has had tens of millions of dollars in USAID and State Department funding frozen,” the suit says. “This freeze has decimated ABA’s programs, including its efforts to protect religious freedom in Asia, fight human trafficking in the Democratic Republic of Congo and Colombia, prepare Ukraine to recover from Russia’s invasion, advance democracy in Myanmar, and combat money laundering and terrorism in South America.”

ABA President Bill Bay commented on Ali’s ruling in the press release.

“The actions of the president and other executive branch officials to dismantle the U.S. Agency for International Development (USAID), which was established by Congress to administer billions of dollars of foreign assistance funding, is unprecedented. The American Bar Association cannot overstate the impact of this unlawful course of conduct,” Bay said.

“Every administration has the right to review ongoing programs and set priorities, but those actions must be carried out in compliance with relevant constitutional and statutory requirements,” Bay said. “There is a right way and a wrong way to do this. We have filed a suit to ensure that changes are consistent with the rule of law. The sudden dismantling of USAID has real-world consequences that cause harm not only to those we serve but also to those who serve others.”

The ABA and the other plaintiffs are represented by Arnold & Porter Kaye Scholer in their suit, Global Health Council v. Trump. The Global Health Council suit was consolidated with AIDS Vaccine Advocacy Coalition v. U.S. Department of State.

U.S. District Judge Carl J. Nichols of the District of Columbia has imposed a TRO in a similar case and extended it to Feb. 21, according to Law.com. The TRO bars the administration from putting USAID employees on administrative leave and from requiring them to leave their overseas posts.

See also:

Contempt sought against US officials for alleged ‘brazen defiance’ of court order on foreign-aid funds

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3. 20 immigration judges fired, despite backlogs;…

Immigration Law

20 immigration judges fired, despite backlogs; one labels dismissal ‘political pink slip’

By Debra Cassens Weiss

February 18, 2025, 1:56 pm CST

Immigration judges have not been spared from firings in the Trump administration, despite a backlog of 3.7 million cases in their courts at the end of last year.

Twenty immigration judges have been fired, including 18 let go Friday, a union official told the New York Times, Bloomberg Law and the Associated Press, which was first to report the news.

The firings are “inexplicable,” and “it makes no sense at all,” said Matthew Biggs, the official, in an interview with the New York Times. Biggs is the president of the International Federation of Professional & Technical Engineers.

Biggs said the firings are contrary to President Donald Trump’s campaign promises to crack down on illegal immigration. Immigration judges, who are administrative law judges, preside over asylum claims and deportation cases.

Among those who were fired Friday, 13 were recently hired and had not yet been sworn in. Five were assistant chief immigration judges. Another two were fired in the past week.

One of the fired judges was Judge Kerry E. Doyle, who was formerly the deputy general counsel for immigration for the U.S. Department of Homeland Security.

“Unfortunately, I was unable to avoid the political pink slip,” Doyle wrote on LinkedIn.

The fired judges included former prosecutors and military veterans, Doyle told Bloomberg Law.

See also:

DOJ says it will prosecute local officials over immigration enforcement

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3. In ‘power move’ over independent agencies,…

Administrative Law

In ‘power move’ over independent agencies, Trump demands review of proposed regulations

By Debra Cassens Weiss

February 21, 2025, 9:47 am CST

President Donald Trump issued an executive order Tuesday that requires all agencies to submit proposed regulations to the White House for review, with no carve-out for independent agencies.

The Feb. 18 executive order applies to “so-called independent agencies,” such as the Federal Trade Commission. the Federal Communications Commission, and the Securities and Exchange Commission, according to a White House fact sheet. The only agency not fully included in the mandate is the Federal Reserve, which still has the power to make decisions about monetary policy.

The order also gives the Office of Management and Budget the power to adjust funding for the agencies based on presidential priorities. It also states that a president and the U.S. attorney general will interpret the law for the agencies.

Law.com, Law360 and the New York Times have stories.

“This is a power move over independent agencies, a structure of administration that Congress has used for various functions going back to the 1880s,” said Peter M. Shane, a legal scholar in residence at the New York University School of Law, in an interview with the New York Times.

According to the New York Times, the executive order and Trump’s firings of independent agency leaders “constitute a major front in the president’s assault on the basic shape of the American government and his effort to seize some of Congress’ constitutional power over it.”

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A federal judge in Rhode Island has barred the Trump administration from enforcing its murky and controversial federal spending freeze by issuing a temporary restraining order.

Earlier this week, U.S. District Judge John McConnell voiced his intention to likely rule in favor of the restraining order during a hearing. On Friday, the court issued a 13-page order formalizing that opinion.

“The Court finds that the record now before it substantiates the likelihood of a successful claim that the Executive’s actions violate the Constitution and statutes of the United States,” McConnell writes.

The Office of Management and Budget issued the memo in question on Tuesday — an attempt to make good on a series of executive orders issued by President Donald Trump, which outlined spending priorities. Within hours, the federal government lurched into chaos.

The first lawsuit filed against the anti-transgender policies of the Trump administration has secured a victory in federal court — for now.

Earlier this week, a judge in Boston issued a temporary restraining order stopping federal prison officials from transferring a transgender woman inmate to a men’s lockup facility. The ruling also bars officials from blocking her access to gender-affirming medical care.

The inmate, identified in court documents as Maria Moe, sued the federal government earlier this week over the Jan. 20 executive order signed by President Donald Trump which purports to defend women from “gender ideology extremism” and restore “biological truth.”

Moe began identifying as a woman when she was in middle school and was able to begin a regimen of hormone therapy for gender dysphoria at age 15, according to her lawyers. Since being incarcerated, she had been housed in a women’s facility — until Trump signed the executive order. After that, she was placed in the Special Housing Unit (SHU) while awaiting transfer to a men’s prison, according to her lawsuit.