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Insurance case is ‘but a speck in the recesses of interstellar space,’ high-profile appeals judge writes

homesafetytechpros — Fri, 02 May 2025 20:52:54 +0000

Judiciary

Insurance case is ‘but a speck in the recesses of interstellar space,’ high-profile appeals judge writes

April 28, 2025, 3:07 pm CDT

Law professor (and future federal judge) J. Harvie Wilkinson III listens during his testimony on Capitol Hill in Washington, D.C., in August 1994. (Photo by Cynthia Johnson/Getty Images)

In a span of less than a week, a conservative federal appeals judge has written two opinions that are getting attention—for taking a tough stand against the mistaken deportation of an immigrant in one case and for waxing philosophical in another case.

In an April 17 opinion, Judge J. Harvie Wilkinson III took the Trump administration to task for “asserting a right to stash away residents of this country in foreign prisons without the semblance of due process.”

Wilkinson wrote the “blistering” opinion for the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, in the case of Kilmar Armando Abrego Garcia of Maryland, according to the New York Times.

Abrego Garcia was deported to a prison in El Salvador in Central America because of an “administrative error.” The case is Abrego Garcia v. Noem.

Now, Wilkinson is getting attention once again for an April 23 opinion in an insurance dispute involving a man on a lawn mower struck and killed by an underinsured motorist, according to Above the Law and the Judicial Notice newsletter at Original Jurisdiction.

The 4th Circuit held that the man’s estate was entitled to $150,000 under the plain terms of the man’s underinsured motorist coverage—and nothing more.

Wilkinson engaged in “existential, metaphysical musings” at the end of his opinion, according to Judicial Notice.

Here is what Wilkinson wrote: “What after all does it matter? A single, seemingly ordinary, rather technical insurance case. One among the many hundreds of rulings judges make each year.

“What does it matter? A case but a speck in the recesses of interstellar space and in the four-plus billion years since our solar system’s birth. What does it matter, this case deserted by both space and time?

“To be human is to live in the here and now. This small case extracts courageous meaning from the vast impersonality in which it resides. Its immediacy confounds infinity; its passions light the dark. We have given it our best; the litigants have given it their best. The trial court has done the same. We do not overlook for a moment the tragic passing of the insured but neither can we ignore the contract under South Carolina law that defines the insurer’s obligation.”

The insurance case is Owners Insurance Co. v. Walsh.

Wilkinson, 80, was appointed to the 4th Circuit by former President Ronald Reagan, the New York Times reports in a story about his background. He is the “son of a patrician Virginia banker,” an Army veteran and a law grad of the University of Virginia.

He delayed his legal education after one year to unsuccessfully run for Congress in 1970 as a Republican. After law school, he worked as a law professor and in the U.S. Department of Justice.

On the bench, the New York Times reports, Wilkinson has “a long track record of conservative rulings under his belt, having criticized rulings establishing abortion rights while writing approvingly of a broad conception of presidential power.”

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Appeals court won’t give DOGE access to social security data

homesafetytechpros — Wed, 30 Apr 2025 22:14:11 +0000

Elon Musk jumps on the stage as Republican presidential nominee former President Donald Trump speaks at a campaign rally at the Butler Farm Show, Saturday, Oct. 5, 2024, in Butler, Pa. (AP Photo/Evan Vucci)

The full slate of judges on a federal appeals court in Virginia rejected the Trump administration’s request to give the so-called Department of Government Efficiency (DOGE) “immediate and unfettered” access to the Social Security Administration’s (SSA) records systems, dealing the president another court loss just after passing the 100-day mark in office.

In a nine-to-six vote, the U.S. Court of Appeals for the 4th Circuit on Wednesday kept in place a preliminary injunction issued by U.S. District Judge Ellen Hollander, of Maryland, that blocked the Elon Musk-led organization from gaining access to the highly sensitive personal information of “essentially everyone in the country.” The majority reasoned that the “bedrock” principle of the SSA keeping personal data confidential “has been flouted by the sudden grant to DOGE of unfettered access to SSA system of records.”

In the majority’s 12-page order, Circuit Judge Robert Bruce King, an appointee of Bill Clinton, heaped praise on Hollander, an appointee of Barack Obama, referring to her as a “very able district judge” who had “carefully and thoughtfully examined the evidence and the legal issues” in the case. He also noted that her initial TRO order was accompanied by a 137-page opinion, while her preliminary injunction order included a 148-page opinion.

King lauded Hollander’s dual opinions as “addressing extensive evidence proffered by the parties” and “refining the pertinent legal analysis” of the lawsuit. The complaint accused the administration of violating the Privacy Act and the Administrative Procedure Act by granting DOGE SSA system access, and claimed it was acting in an “arbitrary and capricious” manner by “flouting SSA protocols for hiring, onboarding, training, and granting systems access to the DOGE affiliates.”

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In her latest opinion in the case, Hollander noted that since the SSA’s inception in 1935, it has “collected, stored, respected, and protected” personal and private data of U.S. citizens. She then emphasized that ensuring the confidentiality of that information was a “bedrock principle of the agency” — a principle the Trump administration sought to change by giving DOGE “unfettered access to SSA systems.”

“The objective to address fraud, waste, mismanagement, and bloat is laudable, and one that the American public presumably applauds and supports,” Hollander wrote. “Indeed, the taxpayers have every right to expect their government to make sure that their hard earned money is not squandered.”

Rather, she said, the issue was how DOGE wants to perform its work, and how the SSA was willing to abandon its long-standing mission.

“However, the issue here is not the work that DOGE or the [Social Security Administration] want to do,” she continued. “The issue is about how they want to do the work. For some 90 years, SSA has been guided by the foundational principle of an expectation of privacy with respect to its records,” adding, “This case exposes a wide fissure in the foundation.”

Hollander ultimately found the plaintiffs were likely to prevail on the merits, as did the majority of the appellate court judges.

“[Hollander’s preliminary injunction] analysis of those claims and the preliminary injunction factors is lengthy, thorough, and compelling,” the appellate court’s opinion says. “Rather than repeating that carefully crafted analysis herein, I adopt and attach hereto the [preliminary injunction] Opinion in its entirety.”

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Appeals court gives Trump go-ahead to fire CFPB staff

homesafetytechpros — Sun, 13 Apr 2025 11:24:33 +0000

Donald Trump speaks at an election night watch party, Wednesday, Nov. 6, 2024, in West Palm Beach, Fla. (AP Photo/Alex Brandon).

The Trump administration recently scored a limited but significant win in its widely-telegraphed efforts to pare down, and perhaps ultimately shutter, the Consumer Financial Protection Bureau (CFPB).

In a terse, 3-page Friday ruling, the D.C. Circuit Court of Appeals stayed three parts of an eight-part preliminary injunction previously entered by U.S. District Judge Amy Berman Jackson on March 28.

In the underlying case, the National Treasury Employees Union (NTEU) alleges the Trump administration – specifically Office of Management and Budget Director Russ Vought – unlawfully fired CFPB employees without cause and scrubbed CFPB data from its records, including important CFPB contracts that are “necessary for cybersecurity.”

In a preview of her injunction, Jackson told U.S. Department of Justice lawyers she was inclined to grant the plaintiffs their requested relief to “make sure [the CFPB] hasn’t been choked out of its very existence” before she can issue a judgment on the merits.

The first provision of the injunction barred the government from destroying certain records; the second provision ordered the reinstatement of all probationary and term employees terminated since the government began its broad campaign of shrinking the federal workforce; the third provision ordered the government not to terminate any further employees – except for cause; the fourth provision barred a broadly worded work-stoppage order.

The fifth provision mandated the government to provide CFPB employees either office space of permission to work remotely plus a laptop computer “enabled to connect securely to the agency server” so they can perform their work; the sixth provision ordered the government to maintain a public-facing phone number and website and repository of complaints; the sixth provision ordered the government to rescind all notices of contract termination and barred any further cancellations; the eighth provision ordered the government to complete a compliance report and submit it by April 4.

On Friday, provisions two, three, and eight were stayed.

The three-judge panel clarified two of those stays.

“Provision two (2) is stayed insofar as it requires defendants to reinstate employees whom defendants have determined, after an individualized assessment, to be unnecessary to the performance of defendants’ statutory duties,” the court wrote. “Provision three (3) is stayed insofar as it prohibits defendants from terminating or issuing a notice of reduction in force to employees whom defendants have determined, after a particularized assessment, to be unnecessary to the performance of defendants’ statutory duties.”

In other words, the government does not need to re-hire any workers who are deemed unnecessary to the CFPB’s statutory mission and can continue firing even more employees deemed “unnecessary.”

The appellate court also clarified – but chose not to stay – the fourth provision of the injunction. The panel said they understood the lower court’s order to be limited enough to allow for stoppages the government determines will help root out “unnecessary” work.

The rest of Jackson’s injunction is explicitly undisturbed.

“All other provisions of the preliminary injunction remain in full effect pending further order of the court,” the panel ruled.

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Art generated solely by AI can’t be copyrighted, federal appeals court says

homesafetytechpros — Mon, 07 Apr 2025 02:38:36 +0000

Art generated solely by AI can’t be copyrighted, federal appeals court says

By Debra Cassens Weiss

March 19, 2025, 11:05 am CDT

A federal appeals court has ruled against a computer scientist who sought to copyright a work of art made by his artificial intelligence system, the “Creativity Machine.” (Image from Shutterstock)

A federal appeals court has ruled against a computer scientist who sought to copyright a work of art made by his artificial intelligence system, the “Creativity Machine.”

Computer scientist Stephen Thaler is not entitled to copyright artwork made solely by AI, the U.S. Court of Appeals for the District of Columbia Circuit ruled Tuesday.

Reuters and Courthouse News Service have coverage of the March 18 opinion.

“The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being,” the D.C. Circuit said in a decision by Judge Patricia Millett, an appointee of former President Barack Obama.

The holding makes is unnecessary to address the U.S. Copyright Office’s argument that the U.S. Constitution also requires human authorship of copyrighted material, Millett said. The appeals court also said Thaler had waived an argument that he could obtain a copyright because he made and used the Creativity Machine.

The D.C. Circuit said its decision does not prohibit a copyright when a work is authored by a human with the help of AI.

“The rule requires only that the author of that work be a human being—the person who created, operated or used artificial intelligence—and not the machine itself,” Millett said.

Millett acknowledged that the Copyright Office has rejected some copyright applications based on the human-authorship requirement, even when a human is listed as the author.

“Line-drawing disagreements” over how much that AI contributed to a work aren’t issue in Thaler’s case, however, because he listed the Creativity Machine as the sole author, the appeals court said.

Thaler plans to appeal the decision, his attorney, Ryan Abbott, told Reuters.

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Appeals court slams efforts to deport without due process

homesafetytechpros — Thu, 27 Mar 2025 04:04:46 +0000

President Donald Trump addresses a joint session of Congress on Capitol Hill in Washington, Tuesday, March 4, 2025 (AP Photo/Alex Brandon).

A federal court of appeals has upheld a temporary restraining that bars the government from summarily deporting immigrants without due process by citing an obscure wartime law.

In a per curiam order, the U.S. Court of Appeals for the D.C. Circuit tersely rejected the Trump administration’s bid for an emergency stay of the temporary restraining order issued on March 15, by D.C. District Court Chief Judge James E. Boasberg, a jurist who got his start under George W. Bush and who was later promoted by Barack Obama.

Each of the three judges on the three-judge panel, however, wrote separately to explain their votes. Circuit Judges Patricia Millett, an another Obama appointee, and Karen L. Henderson, a George H.W. Bush appointee, wrote concurrences. Circuit Judge Justin R. Walker, who was appointed by President Donald Trump, penned a dissent.

In the case before the court, the Trump administration claimed something not entirely unlike plenary authority to quickly deport immigrants using the Alien Enemies Act (AEA) of 1789. The law, which has not been used since World War II, has hitherto been understood to apply only during an actual war with another country. Its use by the Trump administration to target suspected foreign gang members poses a matter of first impression for the judiciary at large.

The law in question reads, in relevant part:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

Henderson, for her part, believes in the historical understanding of how the law works through its conditional and operative clauses.

“Thus, the AEA vests in the President near-blanket authority to detain and deport any noncitizen whose affiliation traces to the belligerent state,” the judge wrote. “A central limit to this power is the Act’s conditional clause—that the United States be at war or under invasion or predatory incursion.”

To hear the Trump administration tell it, however, the court’s authority to resolve AEA-related issues are beyond the scope of judicial review because they are so political in nature.

Henderson sharply rejected that claim – accusing the U.S. Department of Justice of misreading the U.S. Supreme Court precedent cited to make that un-reviewability argument.

“In no uncertain terms, the Court said the AEA ‘preclude[s] judicial review . . . [b]arring questions of interpretation and constitutionality,”” Henderson noted. “Questions of interpretation and constitutionality—the heartland of the judicial ken—are subject to judicial review.”

The judge also offered a new analysis of her own – in light of government claims that the word “invasion” in the statute applies to the current state of the U.S. immigration system because there are large numbers of “illegal” immigrants. This argument was also rejected.

“[T]he invasion must be ‘against the territory of the United States by any foreign nation or government,’” the judge observed. “The requirement that the ‘invasion’ be conducted by a nation-state and against the United States’ ‘territory’ supports that the Congress was using ‘invasion’ in a military sense of the term.”

The concurrence elaborates, at length:

This should come as no surprise. The term “invasion” was well known to the Fifth Congress and the American public circa 1798. The phrase echoes throughout the Constitution ratified by the people just nine years before. And in every instance, it is used in a military sense. For example, the Guarantee Clause provides that “[t]he United States shall . . . protect each [State] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” The clause is a federal guarantee to the states against attack from without (invasion) or within (insurrection).

In one small salve for the government, Henderson cited common law to suggest Boasberg might have to limit his temporary restraining order so that it does not apply to the president himself. Still, she said, the broader restraining order should stand for at least as long as the lower court fully briefs the issues.

“At this early stage, the government has yet to show a likelihood of success on the merits,” Henderson concluded. “The equities favor the plaintiffs.”

In her own concurrence, Millett also said the lower court was equipped to deal with the case on the merits at this stage – and chided the government for what appeared intentional efforts to remove the case from the court’s jurisdiction by its actions.

“The district court has been handling this matter with great expedition and circumspection, and its orders do nothing more than freeze the status quo until weighty and unprecedented legal issues can be addressed through a soon-forthcoming preliminary injunction proceeding,” Millett wrote. “There is neither jurisdiction nor reason for this court to interfere at this very preliminary stage or to allow the government to singlehandedly moot the Plaintiffs’ claims by immediately removing them beyond the reach of their lawyers or the court.”

Millett used especially strong language to take issue with the Trump administration’s interpretation of the AEA.

“[T]he government maintains that whether there has been an ‘invasion or predatory incursion’ of the United States and whether [the Venezuelan gang Tren de Agua] is a ‘foreign nation or government’ are committed to the President’s discretion,” the judge writes. “Not likely.”

Then judge then took a larger ax to the executive branch.

‘[T]he government is mistaken about the extent of unilateral Executive authority under the Constitution,” she goes on. “An assertion of exclusive Executive authority is ‘the least favorable of possible constitutional postures’ and it runs aground here on the express constitutional assignment of relevant authority to Congress.”

The government’s position in the AEA case also implicates fundamental constitutional rights; Millett says those issues have long since been decided and the government is wrong again here.

“Over one-hundred-and-fifty years ago, the Supreme Court addressed whether civilian courts could be closed just because the Executive declared an emergency,” the judge noted. “The Court said no.”

As for the basic claim advanced by the Trump administration, Millett rubbished the government for insisting the AEA could be used to deport people while at the same time suggesting anyone aggrieved by such a deportation could file a petition for a writ of habeas corpus.

“The government’s removal scheme denies Plaintiffs even a gossamer thread of due process, even though the government acknowledges their right to judicial review of their removability,” Millett concluded. “The district court’s temporary restraining orders have appropriately frozen the status quo until an imminent motion for preliminary injunction is filed. The district court acted well within its discretion in doing so. We lack jurisdiction to review the government’s motion to stay those orders, and the government’s jurisdictional objections to the district court’s actions do not raise a substantial question at this stage.”

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Trump admin swiftly rebuked by appeals court over layoffs

homesafetytechpros — Sun, 23 Mar 2025 10:19:32 +0000

President Donald Trump addresses a joint session of Congress on Capitol Hill in Washington, Tuesday, March 4, 2025 (AP Photo/Alex Brandon).

The Trump administration on Friday implored a federal court of appeals to allow administrative agencies to go forward with controversial plans for massive layoffs of the federal workforce. Moving with a quickness, the court shut that avenue down.

In a 16-page filing with the Court of Appeals for the Fourth Circuit, the U.S. Department of Justice requested emergency relief in the form of an immediate administrative stay — as well as a broader stay pending appeal of the underlying case — that would overturn the nationwide injunction issued by a Baltimore district court on March 13.

“The district court’s sweeping order compelling the reinstatement of thousands of terminated employees at eighteen different federal agencies is legally indefensible and irreparably harms the federal government every day that it remains in effect,” the reply reads. “[T]his Court should enter a stay pending appeal and an immediate administrative stay.”

By the end of the day, however, the clerk of the court — on behalf of a three-judge panel — issued a terse order that rejected the government’s ask with zero analysis of the arguments.

The two-sentence decision did offer a procedural explanation: the district court overseeing the matter currently has a hearing scheduled for March 26 where the judge intends to “promptly grant or deny preliminary injunctive relief thereafter.”

In the case, U.S. District Judge James Kelleher Bredar, a Barack Obama appointee, ordered the U.S. Department of Agriculture and other agencies named in the lawsuit to reinstate probationary employees fired since Jan. 20. Such employees were ordered to be rehired by March 17.

The order further prohibits the government from additional layoffs that do not meet statutory standards. In real terms, in order to perform so-called “reductions in force,” the government must show such employees have a history of poor conduct or performance.

More Law&Crime coverage: ‘Ensure compliance with obligations’: Air Force members press another federal court to issue an additional restraining order blocking Trump’s transgender military ban

In its reply brief, the government essayed an iteration of an increasingly used argument against judicial review. The Trump administration has, in both public statements and various court filings in multiple cases, inveighed against the power of district judges to issue nationwide injunctions against the executive branch. In the present case, DOJ lawyers slightly modified their opprobrium to account for Bredar’s self-imposed deadline of March 27. On that date, the court will consider whether to extend or cancel the restraining order.

“This Court should be exceptionally wary of a jurisdictional ruling that would permit every district judge in this Circuit to bind the Executive Branch for at least fourteen days before the government can even begin asking an appellate court for relief,” the DOJ told the trio of judges.

While the panel did not appear moved by those time-focused arguments, Circuit Judge Allison Jones Rushing, a Trump appointee, did offer some more fundamental hope for the government on the nationwide injunction argument — at least in this case.

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In a concurrence, she said the district court improperly determined the government broke federal law and “lost sight of who the Plaintiffs are and what injury they claim when it concluded a nationwide injunction was warranted.”

To hear Rushing tell it, this case poses a question where some states claim an injury while several others actively reject such an injury exists. The district court, on the other hand, fashioned relief that purports to vindicate the rights of the citizens for each of the 50 states. The jurist suggests that was a bridge too far.

“I write separately to echo the growing concerns over district courts issuing nationwide injunctions to order redress for those who have not sought it,” Rushing’s concurrence reads. “The district court here required numerous federal agencies to reinstate fired probationary workers across all 50 States. It ordered relief because Plaintiffs — which are 19 States and the District of Columbia — asserted an injury stemming from the federal government’s failure to notify the States of its intent to fire probationary employees within their territory. But the district court extended its injunction to cover non-plaintiff States.”

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Third federal appeals court rejects Trump administration bid on birthright citizenship

homesafetytechpros — Mon, 17 Mar 2025 23:38:17 +0000

Constitutional Law

Third federal appeals court rejects Trump administration bid on birthright citizenship

By Debra Cassens Weiss

March 12, 2025, 12:05 pm CDT

The 1st U.S. Circuit Court of Appeals at Boston on Tuesday refused to allow President Donald Trump’s order on birthright citizenship to take effect, joining two other federal appeals courts that also ruled against the administration on the issue. (Image from Shutterstock)

The 1st Circuit refused to stay pending appeal a federal judge’s Feb. 13 nationwide preliminary injunction blocking the order. The appeals court joined the 9th Circuit at San Francisco and the 4th Circuit at Richmond, Virginia, which issued similar rulings.

Law360, Reuters, the Associated Press and the Volokh Conspiracy covered the March 11 decision.

Trump’s Jan. 20 order bans birthright citizenship when a mother is in the country illegally or temporarily and when a father was not a U.S. citizen or a lawful permanent resident at the time.

U.S. District Judge Leo T. Sorokin of the District of Massachusetts had granted a preliminary injunction to 18 states that challenged the order, finding that they were likely to succeed in their argument that it violated the citizenship clause of the 14th Amendment. The District of Columbia and San Francisco were also plaintiffs.

On appeal, U.S. Department of Justice lawyers did not “make any developed argument” that the government was likely to succeed in showing that Trump’s order was constitutional, the 1st Circuit said. Instead, lawyers claimed that the plaintiffs did not have standing.

The states had countered that they had standing because the order would result in a loss of federal funds for health care, special needs education, child welfare and applications for Social Security numbers.

The 1st Circuit sided with the states, finding that the government had not made the strong showing needed to overcome state arguments.

1st Circuit Chief Judge David J. Barron, an appointee of former President Barack Obama, wrote the opinion in the case, New Jersey v. Trump.

New Jersey Attorney General Matt Platkin applauded the decision in a statement cited by Law360.

“Every court to consider President Trump’s effort to end birthright citizenship by executive order has found it is flagrantly unconstitutional, and every appellate court has rejected DOJ’s effort to put his order back in place,” Platkin said. “We are thrilled with the 1st Circuit’s decision, and we look forward to standing up for our birthright citizens no matter how far the Trump administration takes this case.”

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Appeals court stops Trump’s Hampton Dellinger fight

homesafetytechpros — Sun, 16 Feb 2025 21:35:31 +0000

Left: President Donald Trump gives remarks during an event celebrating the 2024 Stanley Cup Champion the Florida Panthers in the East Room of the White House in Washington, DC on Monday, February 3, 2025 (Photo by Aaron Schwartz/Sipa USA)(Sipa via AP Images). Right: Hampton Dellinger (Office of Special Counsel).

A federal appeals court has rejected President Donald Trump‘s attempt to boot the Biden administration’s whistleblower advocate Hampton Dellinger from his post at the Office of Special Counsel, voting 2-1 to let him keep his job through a temporary restraining order (TRO) issued by a lower court judge. Trump’s Justice Department had asked the U.S. Court of Appeals for the D.C. Circuit to rule by noon Friday, saying it has “the opportunity to seek expeditious review” from the Supreme Court, should they be swatted down. The rejection came Saturday just before 11 p.m.

“The relief requested by the government is a sharp departure from established procedures that balance and protect the interests of litigants, and ensure the orderly consideration of cases before the district court and this court,” wrote judges Florence Pan and J. Michelle Childs in the late night ruling. “The government asks us to resolve disputed issues that plainly have not been finally adjudicated by the district court. The litigation of Dellinger’s motion for a preliminary injunction is ongoing … and that litigation raises issues that are overlapping, if not identical, to those that would be presented in an appeal of the TRO.”

Trump’s DOJ filed motions last week for an “immediate administrative stay” of the lower court’s TRO in both district and appeals court after it was granted by U.S. District Judge Amy Berman Jackson to allow Dellinger to keep his job while she weighs whether his firing by Trump on Feb. 7 was legal. The move came after Dellinger, who was appointed by Biden in February 2024 to enforce whistleblower laws, filed a lawsuit in the District of Columbia after being fired by the Trump administration “in a one-sentence email,” according to his federal complaint.

In its appeals motion, the DOJ said it was “unaware” of any other occasion in American history where a federal court has “purported to install a principal officer of the United States after the president has removed him — let alone to do so without finding that he was likely to prevail on the merits of his claim, as the district court did here.” The motion pointed to SCOTUS precedent as well as former President Joe Biden’s own 2021 firing of Andrew Saul, who was social security commissioner at the time, as reasons for slapping down the lifeline Jackson tossed to Dellinger last week.

In a 12-page dissent to the Saturday ruling, U.S. Circuit Judge Greg Katsas — a Trump appointee — said he believes the president “is immune from injunctions directing the performance of his official duties, and Article II of the Constitution grants him the power to remove agency heads.” Katsas argued that “the extraordinary character of the order at issue here” is the fact that it directs the president to “recognize and work” with an agency head whom he has already removed, which warrants “immediate” appellate review.

“The TRO unjustifiably intrudes into a core institutional prerogative of the President, while Dellinger’s modest individual injury could be remedied in an action for backpay,” the dissenting judge wrote. “An injunction preventing the President from firing an agency head —and thus controlling how he performs his official duties — is virtually unheard of. And in any event, Article II of the Constitution empowers the President to remove the head of an agency with a single top officer.”

In their ruling, Pan and Childs said they felt that it was ultimately the lower court’s job to decide whether Dellinger was allowed to keep his job through the TRO issued by Jackson, a 2011 Barack Obama appointee, on account of TRO’s “ordinarily” not being an appealable order. “The government asks us to make an exception and hear its appeal because the TRO ‘works an extraordinary harm’ and is set to last for 14 days,” the judges note.

The government had requested that the appeals court “construe its stay motion as a petition for a writ of mandamus and grant the petition,” which the judges said would have the same effect of reversing the TRO. “The government filed its appeal and stay motion on the evening of February 12, 2025, and requested a ruling from this court within two days, by noon on February 14, 2025, so that the Acting Solicitor General ‘has the opportunity to seek expeditious review from the Supreme Court if this Court denies relief,”” the judges explained.

“Instead of entertaining an emergency appeal of a TRO, the normal course would be for us to wait for the district court to issue a ruling on the preliminary injunction, which would be immediately appealable,” the pair concluded. “Indeed, many of the issues raised in the stay motion will be addressed by the district court at the preliminary-injunction hearing on February 26, 2025. The district court has promised to issue its preliminary-injunction ruling with ‘extreme expedition.’”

In district court, Trump’s DOJ claimed last week that Dellinger had not established how he will suffer irreparable harm if Jackson’s TRO is stayed pending an appeal. “A stay is not necessary to prevent any cognizable harm to plaintiff,” the DOJ’s motion said.

In his complaint, Dellinger claims that by firing him from the Office of Special Counsel, the Trump administration “jeopardized” the functioning of an agency designed to stop exactly that. The DOJ, however, insists that OSC can function just fine without Dellinger in charge.

“To the extent Plaintiff asserts irreparable harm to the functioning of OSC itself, that assertion is misplaced,” the department’s district court motion said last week. “Both because OSC can continue to function with an Acting Special Counsel (who had already assumed Plaintiff’s role before the district court’s order) and because Plaintiff would lack standing to raise such a harm.”

Dellinger, 57, was appointed by Biden to serve a five-year term before he was fired by Trump. His termination and lawsuit came less than a week after an employee of the National Labor Relations Board, an independent federal agency that enforces labor laws and protects workers’ rights to organize, sued Trump after being axed in January in similar fashion.

A group of federal watchdogs who got booted from their posts last month have also teamed up to sue the Trump administration — saying the firings violated “unambiguous federal statutes” — in a joint legal bid to get their jobs back.

The group of watchdogs suing the Trump administration includes former Department of Defense inspector general Robert Storch; former Department of Veterans Affairs IG Michael Missal; former Department of Health and Human Services IG Christi Grimm; former State Department IG Cardell Richardson; former Department of Education IG Sandra Bruce; former Department of Agriculture IG Phyllis Fong; former Labor Department IG Larry Turner; and Small Business Administration IG Michael Ware.

Last Monday, the White House reported that Cathy Harris — who is on the three-member Merit Systems Protection Board, which protects terminated federal workers from “partisan political and other prohibited personnel practices,” according to its government website — was being fired, along with its vice chair Ray Limon. Harris responded to her termination with a lawsuit as well, calling it “unlawful” and having “no basis in fact.”

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Law prof who used F-word while criticizing political leaders can’t be reinstated immediately, appeals court says

homesafetytechpros — Sat, 15 Feb 2025 15:02:11 +0000

Law Professors

Law prof who used F-word while criticizing political leaders can’t be reinstated immediately, appeals court says

By Debra Cassens Weiss

February 4, 2025, 9:14 am CST

A state appeals court stepped in after a judge in Baton Rouge, Louisiana, issued a temporary restraining order that required Louisiana State University to reinstate a law professor to teaching following his suspension for “inappropriate statements” in the classroom. (Photo from Shutterstock)

Updated: A state appeals court stepped in after a judge in Baton Rouge, Louisiana, issued a temporary restraining order that required Louisiana State University to reinstate a law professor to teaching following his suspension for “inappropriate statements” in the classroom.

Judge Donald R. Johnson of the 19th Judicial District Court in Louisiana ordered professor Ken M. Levy’s temporary reinstatement Jan. 30 and set a Feb. 10 hearing to consider the professor’s request for an injunction. The TRO said the university can’t take action against Levy, for now, on account of free speech and due process protections under the state and federal constitutions.

Louisiana’s First Circuit Court of Appeal vacated part of the TRO in a Feb. 4 order, report the Advocate and WAFB via Above the Law. The appeals court said Johnson should not have ordered Levy back into the classroom without a full evidentiary hearing. Still intact is another part of the TRO barring Louisiana State University from interfering with Levy’s employment based on expression that is constitutionally protected.

The Louisiana Luminator, NOLA.com and WAFB (here and here) had coverage of the TRO noted by Above the Law and the Volokh Conspiracy. Law.com has a report on the resignation of Louisiana State University general counsel Winston DeCuir Jr., who was the first Black lawyer to serve in that role for Louisiana State University. DeCuir resigned days after Levy’s suspension.

Levy had used the F-word while criticizing President Donald Trump and Louisiana Gov. Jeff Landry. The university told Levy that he was suspended “pending an investigation into student complaints of inappropriate statements made in your class,” according to a Jan. 17 letter cited by NOLA.com.

In a court filing, the university said it was investigating “inappropriate, vulgar and potentially harassing conduct in the classroom,” WAFB reported. The university said it removed Levy after hearing a recording of a classroom lecture.

WAFB obtained a tape of Levy’s statements, made during an introductory lecture to his criminal law class. He spoke after asking students not to record his lectures because he didn’t want to get in trouble with the governor as another law professor did for classroom comments. Here are some of his comments:

• “I frankly, like, forward my s- – – to the governor, like I generally don’t have a problem; I would love to become a national celebrity based on what I said in this class, like f- – – the governor.” Levy said. “But taken out of context, I might seem like a bit of an a- -hole.”

• “You probably heard I’m a big lefty; OK, I’m a big Democrat, um, I’ve been devastated by, I couldn’t believe that f- – -er won. Um, and those of you who like him, I don’t give a s- – -, you can have, you’re already getting ready to say your evaluations. I don’t need his political commentary; no, you need my political commentary, you above all others need my political commentary.”

A court filing said Levy’s comments about Landry were made in a joking manner, and his comments about Trump were his “rather colorful opinion,” NOLA.com reported.

Johnson denied motions by Louisiana State University for a stay or dissolution of the temporary restraining order, according to WAFB.

The university said in a statement cited by NOLA.com it was committed “to upholding academic freedom while maintaining a respectful and professional learning environment.”

Faculty members should respect the views of others, the statement said. And academic freedom doesn’t give professors the freedom to use the classroom “as a platform for personal grievances,” the university said.

Updated Feb. 5 at 8:40 a.m. to report on the Louisiana appeals court’s decision.

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Federal appeals judge, 97, loses bid to unseal documents about her suspension

homesafetytechpros — Sat, 15 Feb 2025 06:43:33 +0000

Judiciary

Federal appeals judge, 97, loses bid to unseal documents about her suspension

By Debra Cassens Weiss

February 4, 2025, 9:30 am CST

Judge Pauline Newman of the U.S. Court of Appeals for the Federal Circuit in May 2023. The U.S. Court of Appeals for the District of Columbia has ruled that federal law does not permit Newman, now age 97, to unseal documents about her suspension. (Photo by Bill O’Leary/The Washington Post via Getty Images)

Federal law does not permit a 97-year-old federal appeals judge to unseal documents about her suspension absent consent of the chief judge of her circuit, the U.S. Court of Appeals for the District of Columbia Circuit ruled Monday.

Judge Pauline Newman of the U.S. Court of Appeals for the Federal Circuit wanted to unseal the documents in an appeal of a federal judge’s July ruling dismissing her challenge to the disability law governing her case, Law360 reports.

Newman was suspended in September 2023 for refusing to participate in medical evaluations to determine her mental fitness.

Newman had told the D.C. Circuit that the only confidential information in the documents concern her medical history, Law360 reported. The Federal Circuit countered that the documents were of “questionable relevance” and will soon be released with redactions.

Newman was investigated after evidence was said to show “troubling signs” of her cognitive decline. Her expert, an editor of the principal neurosurgery textbook, said Newman had an “extraordinarily high level of cognitive ability” and appears to be a “super-ager.”

The D.C. Circuit said the Judicial Conduct and Disability Act generally does not permit disclosure of records related to investigations unless written consent is obtained from the judge under investigation and the chief judge of the relevant circuit.

Federal appeals judge, 97, who refused to cooperate in fitness probe loses challenge to disability law

Investigations of federal judges are rare and should happen more, former clerk says

Federal appeals judge, 96, fails to overturn suspension order for refusing to cooperate in fitness probe

Speaking at ABA meeting, federal appeals judge, 96, doesn’t address her suspension but mentions opinion pace

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