Thread by @ProfMJCleveland

🚨Hearing is schedule for 1:30 at which Court will likely decide whether to grant a TRO* to Plaintiffs which includes many non-profits & the American Bar Association seeking an injunction preventing basically anything to USAID program, employees, grants. 1/

https://twitter.com/ProfMJCleveland/status/1889346549110407204

2/ Case was reassigned to Judge Amir H. Ali, who is also a Biden Appointee. *TRO is a Temporary Restraining Order that Court's are suppose to only rarely and in most urgent circumstances grant, but apparently there's a Trump exception to that.

3/ Likely will hear Department of Justice on behalf of Trump argue no standing, i.e., these plaintiffs have no basis to stand before court because no injury. Organizations can have standing if a member has standing & DOJ will argue they haven't identified any 1 member w/ injury.

4/ DOJ will also argue no valid APA claims (Administrative Procedure Act) because no "final agency action" but internal operations. And even if final agency action, none of decisions are illegal or arbitrary and capricious.

4/ DOJ will also argue no valid APA claims (Administrative Procedure Act) because no "final agency action" but internal operations. And even if final agency action, none of decisions are illegal or arbitrary and capricious.

5/ Here's DOJ should stress that the Plaintiffs have no identified any specific statute that prevents Trump's actions. And that in any event, other remedies exist if wrongly fired or grants removed so APA doesn't work.

6/ Live Tweeting hearing now: Stay tuned. Will have legalesse.

7/ Judge: Understand Motion TRO filed in docket 402; 400 AIDS Vac. filed Motion for TRO today. They are consolidated here. Understand both saying harm. Judge wants each side to argue TRO factors. Cautious: Sealed affidavits so be careful b/c public hearing.

8/ Case 402: Global Health go first. Ask for application of standard to record.
DOJ: Two other cases are related: American Foreign Services (before judge Nichols); and another one. Judge won't consider that issue further.

9/ Attorney: Focusing on irreparable harm, business etc. who receive USAID funding. Some clients lost all or some capital; food rotting; medical supplies expiring; all b/c arbitrary & capricious ways. Stops pay for work done; stop doing more work; that can't be done; small business: forlerned 99% of US employees 94% international; lost health insurance; leave perishable food & medicines; harm to trust & goodwill; Ukraine & other conflict zones.

10/ Judge Question: What particular action enjoin? EO 14169; all of the actions identified in proposed TRO; any conduct to implement EO or TRO; freezing/pausing/ appropriated funds; freezing stop-work orders. "All fruit of poisonous tree flowing from EO 14169; or cutting USAID by firing employees etc. that would prevent.

11/ Judge: How many of Plaintiffs already funding terminated? All Plaintiffs who received money from USAID & State Dept is frozen. All associations have had funding USAID & State Dept frozen. May be some exceptions talk of waiver. How is it stopped mechanically? Payment portal used for gov't contracts is completely frozen. Is there typically stop-work order/terminations ? Depends on context: In both stop-work/termination cite EO. Some have pending invoices that money is not being paid. Judge: Plaintiffs say USAID is excelerating termination. It has lists of contracts that are being terminating en masse and have quotas to terminate as many as possible.

12/ Attorney for Plaintiff: Likelihood of Success. Argues sliding scale that where great irreparable harm need little success on merits. 4 COA: APA (arbitrary & capricious; unlawful); separation of power; ultra vires. Focuses on arbitrary & capricious: Defendants have failed to consider important aspects of problem they claim to address. Fail to consider anything but President priorities; did not consider effects on freezing funding on the entities; didn't consider reasonable alternatives, could allow funding to continue while evaluating; no consideration to doing review versus review & freeze; implementation has been chaotic and undermines review b/c if frozen can't continue later b/c may go out of business; no rules or process or standards for waiver; even with waivers money isn't released.

13/ Judge: Have your clients been granted waiver? Attorney: Yes, some clients have some funding for categorical waiver. Not sure if some or all have applied for waivers. Some funding not restarted but doesn't understand.
Judge: Final agency action identified is Secretary of State memorandum that follows. How does relief sought connect to the claim you are seeking?
Attorney: President's EO isn't a final action, but APA claims are challenging non-presidential, then only enjoining non-presidential action. EO is based on non-APA claims (separation of powers & ultra vires).

14/ Counsel: Suggests TRO reaching actions to implementing memorandum from Secretary of State & USAID notices. Other internal agency directives issues since that directive, ask court to give broad relief to cover those types of things. (My note: HUGE issue b/c those aren't final agency action.)

15/ Court asking case 400 (consolidated case) to present new arguments.
Attorney: Noted claims same as 405. Irreparable harm in our case, foreign funding taken away overnight; budget cut by 40%; wind down operations; firing large portion of staff and more firings coming if funding not restored; pause on funding is 90 days and we aren't a third into it so not clear projects are able to survive; harms goes to likelihood of success & scope of relief. This was blanket action w/o case specific determination-want to shut down for assistance. Claim their clients can't survive the 90 days. Defendants are achieving what they want--stymie foreign assistance: Not a permissible action--executive branch affectuates legislative directive. Admits directive: Congress said foreign assistance programs do merit funding and prioritized.

16/ Judge: Lack of case-by-case seems to be focus. What can president do? You said they have flexibility so what can they do? What is permissible?
Lawyer: If not a contract in place, executive branch can accept proposal & determine how to allocate. Barring statement from Congress, Executive can decide project A, within discretion. Claims Executive cannot refuse to fund programs that match what legislature says to fund. Claim it is desire to shut down funding. Impound Act: Allows President to ask for rescission of funding.

17/ Judge: If not already a contract, can look at project. What can executive do if a contract? Or are you saying they can't do anything?
Lawyer: If the terms of contract create mechanism of recission or pull funding, executive can act under contract. But can't terminate for arbitrary and capricious or under law.
Counsel 402 case: Executive branch has some discretion but discretion over whether money is spent. (note: This concession destroys Plaintiffs case. Trump hasn't said they aren't funding as required by congress. Just that these grants don't fit out policy.)

18/ Lawyer: Can't terminate for arbitrary or capricious reasons. Argues b/c en masse it is arbitrary and capricious. Argues that in effect means they aren't doing what congress says. (Note: That concession establishes no imminent harm because it is not certain Trump won't spend).
Lawyer 2: Not actively mechanism for requesting the waivers b/c placed on administrative leave.

19/ Lawyer: Waiver is not a viable process.
Government: Eric Hamilton for DOJ. Overlap in docket 20. Declaration of Pete Maraco Dept Admin. for USAID discuss. Irreparable harm trying to use as one-size fits-all to litigate factual issues. Some have waivers; waiver process put into place. Secretary Rubio did initial waivers and process for additional waivers 1/28 emergency humanitarian waiver. State Dept also doing case by case waivers. Granted for AIDS relief. May be hiccups in implementing and goal & process to consider waivers while in place. Fact dependent: Terms of individual contracts they rest on. Some contracts have clauses permit changes if determined not consistent with national interest. Not showing irreparable harm.

20/ Judge: Ask to have Declaration filed in docket. Argue significant shuttering of small businesses. Gov't's position on relation to irreparable harm.
Counsel: It difficult to know without knowing waiver question. More appropriate to litigate case by case, contract by contract. Not USAID relief.
Judge: If not surviving is it relevant?
Counsel: Yes, relevant, but no opportunity to test facts.
Judge: Food/Medicine not delivered?
Counsel: Emergency humanitarian waiver. So, just not turned back on.
Judge: Some USAID have contractual provision allowing termination.
Counsel: Claims turn on terms of contract b/c all of this is happening on backdrop of different foreign policy. Pause is understanding & recalibrating.
Judge: President, has clear authority to modify?
Counsel: Yes, national interest in contract refers to foreign policy of current president.
Judge: Would that be overbroad?
Counsel: Yes, he can terminate contract b/c of executive power.

21/ Judge: Are contracts being terminating limited to USAID w/ those provisions.
Counsel: There may be other terms that are relevant which is why litigation over violation of contracts should proceed as any normally would. These lawsuits are not right vehicle for contract disputes.

22/ Counsel: No likelihood of success. Many claims preempted in federal court b/c can only go to court of federal claims. asking court to provide equitable relief to hold employment actions: Those employment disputes, under Thunder Basis, they are preempted under Civil Service Reform Act, and others all have mechanisms for litigating employment disputes.
Judge: Contractual goes to federal claims, what part of harms are suppose to be going through employment disputes.
Counsel: I take them to ask no changes in employment status, and putting on administrative leave. Under statutes those are to be litigated separately and that preempts claims here.

23/ Counsel: Some employees on administrative leave are fact specific and thus shouldn't be looking at here.

24/ Judge: Respond to APA & Separation of Powers.
Counsel: EO cannot be challenged under APA and implementation also not subject to APA. Rubio Memo: 1/24/25 order setting various standards to allow agency to fulfill mandate. Adequate remedy at law so no APA claim.
Judge: EO can't be challenged, but "gutting Franklin" argument, but APA allows review of final agency action. Often does take place in final agency action.

25/ Lawyer: We don't have agency action b/c merely implementing an EO, not subject to APA. But also not final agency action: It is a 90 day pause in action to study and recalibrate and then make final decisions.

26/ Lawyer: file list of cases within an hour; declaration.

27/ Judge: Please address separation of power argument.
Counsel: Can't litigate under exceeded a statute. Not aware of authority that Take Care Clause provides affirmative relief. Backdrop of Article II policies--enomously disruptive process of intrusion into USAID with federal court deciding what to do.

17/ Lawyer: This is a how money is spent case, NOT a case about not following Congress's mandate.
Court: 402 argues ultra vires, what is your response.
Plaintiff's law: Our argument that Defendants' actions both EO & implementing. Agencies only has power Congress gives them & no authorization constitutional or statutory to do a freeze. And trigger major question doctrine. Would require clear authorization.
Lawyer for Defendant: Some of statutes provide for foreign assistance expressly call out president's decision making in this space. Provides "on terms and conditions" as president may determine. Congress recognizes president's authority in this space. 90 day policy is permit new administration to study issues of foreign aid to recalibrate.

28/ Court: Anything we haven't covered?
Plaintiffs' Attorney: EO don't just apply to USAID grants. Also impacts other State Dep't grants. Grantees aren't employees so not available. Final agency action: Just b/c government policy may change doesn't mean not a final agency action of withdrawal of funds. Pause is final agency action by agency directive. And causing ongoing harm. Claims gov't has given reason for why evaluation can't go one while funding continutes.

29/ Court: Why isn't the blunt approach for president to decide.
Plaintiffs: Congress has made decision that spending must occur, so President can't stop it for 90 days. And Executive Action has to be supported by a reasoned analysis because of enormous reliance interest over existing status quo so to justify this broad based approach must show why necessary approach and justifies massive disruption.

30/Lawyer in 402 case: Scope: Challenging them en masse b/c government is doing it on masse. Terms of Contracts: Can't tie to terms of contract, affecting small and large business. No waiver policy is clear. Court of Federal claims can only award money damages and asking equitable relief. Only to want to have enough USaid to have enough people to handle funds. Scope of APA: doesn't reach EO but EPA exist. Not practical whether enjoins EO or not. Prefers TRO to reach everything.

31/ Lawyer: It's about spending and appropriations clause which gives to congress and not executive. Case is about whether money is spent not how it is spent. Appropriations expire in March before end of appropriation power.

32/ DOJ: It's their motion and their burden. Their is a waiver process and that court of federal claims, that doesn't mean they could get other relief in another court; balance of equities is presidents' foreign affairs aids tip in Defendants favor.

33/33 Court: I will issue a ruling in writing. Candid take: Important that analysis of party tailored b/c legal arguments and relief. Proposed order asks for enjoined implementing EO in full and the Secretary's memorandum and having more tailored sense: Section 3B: Review and not termination or pause. How is that a problem? 3D/E: Don't seem connected. Implementation 3A/3C under advisement. Helpful to have all parties proposed order on merits & alleged harm with specific as possible of alleged harm. 402 may be satisfied but submit another. Defendant file proposed order. By 4:30. Plaintiffs made arguments that received terminations in response to litigation: Ask Plaintiffs to submit any evidence to support that claim. Order government to file with court: List of terminations/suspensions/stop-work-orders since 2/10: Both of those by 7 p.m. Take under advisement.