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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. 2 firms speak out after Trump seeks lawyer…

Law Firms

2 firms speak out after Trump seeks lawyer sanctions for ‘unreasonable and vexatious’ suits against US

By Debra Cassens Weiss

March 24, 2025, 11:20 am CDT

Two law firms have issued statements criticizing President Donald Trump after he issued a memo late Friday calling for sanctions, ethics referrals and reassessment of security clearances against lawyers and firms that engage in “frivolous, unreasonable and vexatious litigation” against the United States.

The two firms taking a stand are litigation boutiques Selendy Gay and Keker, Van Nest & Peters, Bloomberg Law reports. BigLaw firms, on the other hand, “have been quiet” since Trump issued executive orders revoking security clearances for three large firms because of their client representations, the article says.

One of the three targeted firms—Paul, Weiss, Rifkind, Wharton & Garrison—has since reached an agreement with Trump that lifts the sanctions that he had imposed. The other two targeted firms are Perkins Coie, which has filed suit, and Covington & Burling.

Selendy Gay said it supports “Perkins Coie, Covington and the American Bar Association in their courageous defense of the rule of law.” The statement said Selendy Gay “rejects the notion that the government can punish lawyers for their choice of clients or threaten judges for presiding over cases adverse to the administration.”

The Keker Van Nest statement said an attack on lawyers who “represent unpopular people and causes, including in matters adverse to the federal government” is “inexcusable and despicable.” The statement also encouraged firm leaders to sign an amicus brief supporting Perkins Coie in its challenge to the executive order.

Trump’s latest memo targeting firms, which is dated March 22, cited the ability of the federal government to seek sanctions under Rule 11 of the Federal Rules of Civil Procedure, agency regulations governing attorney conduct and state attorney ethics rules.

Far too many lawyers have ignored Rule 11’s ban on frivolous litigation “when litigating against the federal government or in pursuing baseless partisan attacks,” and Attorney General Pam Bondi should seek sanctions in such situations, according to the memo.

Bondi should also seek referrals to ethics regulators for conduct that appears to violate professional conduct rules, “including rules governing meritorious claims and contentions and particularly in cases that implicate national security, homeland security, public safety or election integrity,” the memo said.

In complying with the directive on ethics referrals, the memo said, Bondi “shall consider the ethical duties that law partners have when supervising junior attorneys, including imputing the ethical misconduct of junior attorneys to partners or the law firm when appropriate.”

The memo also directed Bondi to recommend additional steps, including reassessment of security clearances, for sanctionable or unethical litigation conduct in present litigation, or in litigation against the United States over the last eight years.

The memo said the immigration system is “replete with examples of unscrupulous behavior by attorneys and law firms.” Citing an example, the memo said “the immigration bar and powerful BigLaw pro bono practices frequently coach clients to conceal their past or lie about their circumstances when asserting their asylum claims, all in an attempt to circumvent immigration policies enacted to protect our national security.”

Another example cited in the memo was alleged “grossly unethical misconduct” by former Perkins Coie lawyer Marc Elias, now chair of the Elias Law Group, who hired the firm that compiled a “false ‘dossier’” with unsubstantiated allegations about Trump’s alleged connections. The allegations led to an FBI investigation.

The memo alleges that Elias “intentionally sought to conceal the role of his client—failed presidential candidate Hillary Clinton—in the dossier.”

Publications covering Trump’s latest memo include the New York Times, the Washington Post, Law360 and Reuters.

Legal advocacy groups and at least 12 major firms have been involved in many of the 100-pluis lawsuits challenging executive actions, according to Reuters.

Selendy Gay is challenging the administration’s rejection of job protections for career government employees, according to Bloomberg Law. Keker Van Nest is involved in six ongoing suits against the Trump administration, the publication reports.

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3. Which BigLaw firms and big-name lawyers are…

Law Firms

Which BigLaw firms and big-name lawyers are involved in suits against Trump administration?

By Debra Cassens Weiss

February 26, 2025, 9:40 am CST

Several BigLaw firms and at least three U.S. Supreme Court practitioners are representing plaintiffs suing the Trump administration.

Well-known attorneys involved in the litigation include Neal Katyal, who recently joined Milbank from Hogan Lovells; Seth Waxman of Wilmer Cutler Pickering Hale and Dorr; and Paul Clement, who left Kirkland & Ellis to form Clement & Murphy, report Law.com and Reuters.

The three lawyers have significant Supreme court experience. Waxman and Clement are former U.S. solicitors general, while Katyal was an acting solicitor general.

Smaller law firms and legal organizations are also involved in the litigation, including the American Civil Liberties Union, its foundation and its affiliates; Lambda Legal; Democracy Forward; Citizens for Responsibility and Ethics in Washington; the National Security Counselors firm; Lawyers for Civil Rights; and immigrant rights groups. Democratic state attorneys general are also filing legal challenges.

According to Law.com and Reuters, these BigLaw firms are involved in lawsuits:

  • Wilmer Cutler Pickering Hale and Dorr, representing fired inspectors general. (Law.com)

  • Hogan Lovells, seeking to block executive orders to end federal funding for gender-affirming medical care. (Law.com)

  • Jenner & Block, also seeking to block the orders on gender-affirming care and cuts to medical research funding. (Law.com, Reuters)

  • Ropes & Gray, also seeking to block cuts to medical research funding. (Law.com)

  • Gibson, Dunn & Crutcher, representing the Amica Center for Immigrants Rights and others seeking to block funding cuts for immigrant legal services. (Law.com)

  • Arnold & Porter Kaye Scholer, representing the ABA and other groups challenging a freeze on foreign assistance funding. The firm also sued over the order ending birthright citizenship. (Law.com, ABAJournal.com, Reuters)

  • Perkins Coie, representing transgender service members challenging an order restricting military service. (Law.com, Reuters)

  • Milbank, representing the chair of the Merit Systems Protection Board in a suit over her attempted ouster. (Reuters)

Just Security and the Civil Rights Litigation Clearinghouse are tracking legal challenges to Trump administration actions.

See also:

Which law firms are expected to win influence in Trump administration?

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3. Opioid suits can’t be based on nuisance law…

Tort Law

Opioid suits can’t be based on nuisance law in Ohio, top state court rules in $650M win for pharmacies

By Debra Cassens Weiss

December 12, 2024, 3:23 pm CST

A decision by the Ohio Supreme Court on the state’s product-liability law is good news for three national pharmaceutical chains ordered to pay more than $650 million for contributing to the opioid epidemic.

The state supreme court ruled Dec. 10 that the Ohio Product Liability Act eliminated all common-law nuisance claims in connection with the sale of products, Court News Ohio reports. The state supreme court ruled after the 6th U.S. Circuit Court of Appeals at Cincinnati asked for a ruling on the impact of the state law as amended.

The 6th Circuit certified the question to the Ohio Supreme Court in an appeal of a $650.6 million judgment against CVS, Walmart and Walgreens. The lawsuit was among several bellwether cases used to test claims and defenses chosen from about 3,000 opioid suits consolidated in the U.S. District Court for the Northern District of Ohio.

Two Ohio counties had contended that the damages awarded were for abatement of the nuisance, rather than for compensatory damages. As a result, the law didn’t bar their claims, they argued.

The Ohio Supreme Court ruled, however, that the type of relief requested is immaterial under the law as written. The state supreme court also rejected the counties’ claim that the nuisance suit didn’t meet the definition of a product-liability claim because there were no allegations of a product defect.

The three drug companies praised the ruling, Bloomberg Law reports. Walgreens said in a statement the decision “allows us to put this litigation behind us so we can continue focusing on the health and well-being of our patients, customers and team members in northern Ohio and across the country.”

Peter H. Weinberger represented the plaintiffs—Lake County and Trumbull County in Ohio. He told Bloomberg Law that the decision “will have a devastating impact on communities and their ability to police corporate misconduct.”

Nationwide, he said, opioid settlements with drugmakers, distributors and pharmacies total nearly $60 billion. The Ohio Supreme Court’s decision “undermines the very legal basis that drove this result,” Weinberger told Bloomberg Law.

The Ohio Supreme Court is the second top state court to rule that public-nuisance laws cannot be used in opioid suits.

The Oklahoma Supreme Court held in November 2021 that Johnson & Johnson’s opioid marketing did not create a public nuisance because it concerned the sale of a lawful product. The decision overturned a $465 million verdict.