🚨🚨🚨Hearing starting momentarily, will try to live post: 1/
https://twitter.com/ProfMJCleveland/status/1891497630858965019
2/ Full docket: courtlistener.com/docket/6963865…
3/ Judge: Had hearing on Friday, I asked Plaintiffs to file proposed order narrowing; filed narrowing proposed scope on Sat. at 4; at Friday's hearing it was my harm extremely serious & colorable claim; but TRO wasn't tailored to gov't; narrowed from 11 to 2 dept; revised to ask to enjoin Musk, DOGE, defendants, accessing/copying in 7 agencies; or terminating agents/employees in agencies: OPM, educ., labor, hhs, energy, transportation, commerce; asked for 14 days; cite complaint, declaration, news report. Gov't responded: remains too broad & not tied to appointment clause; asked to proceed on PI; 1:30 a.m. Plaintiffs filed reply, arguing threat of data disclosure & dismanteling will cause irreparable harm, and oppose PI and seek discovery. On Friday: TROs/PI are extraordinary remedies, PI only after notice; TROs purpose to preserve status quo; same 4 part test applies to both. Emergency TRO so immenent. Plaintiff if deny & get PI, then allow discovery?
4/ Plaintiffs: We are confident we have evidence necessary to get TRO. Judge: Lots of news reports out there. Court can't act based of news reports--they can't find basis for TRO. Plaintiffs: I can point to what has already happen. Absolutely narrowing request. Our concern is how they are using data--for purpose other than designed to be collected. Judge: Tie to complaint?Plaintiff: From statement Musk makes; X posts; DOGE website (workforce; regs; finance): Using data they have access to to decide how to make cuts. So, Educ. Dep't: School notes shortage of educators, poor outcomes, plus money--rely for operational & technical support. What is threatened by DOGE? Plaintiffs: DOGE has affected funding cuts across Educ. including research program, such as Institute of Educational Science have in past studied programs used in New Mexico. Judge: If I don't issue TRO & convert to PI: And you win? If it gets slashed can't you get money. Cuts to nuclear hurts New Mexico. Plaintiff: We're getting reports to DOGE direction called for cuts to CDC staff, including Indian Health Staff, just made public, new secretary is trying to rehire poeple...New Mexico has large tribe...Judge: It has to be extreme harm it has to be imminent, and tomorrow and it will definitely happen. Something that can't be "undone"--difficult or challenging, it can be undone.
5/ Judge: Generalized fear, even if likely, isn't enough for TRO and I'm not seeing it so far. Plaintiffs Lawyer: If Defendants have evidence to refute this. . . (NOT Defendants' job). Cites to Washington Post article of DOGE memos of plans to spending cut. On Wednesday will start with continue to staffing cuts--nothing described. Judge must have rolled eyes: "I understand your frustration." Plaintiff references X posts of "Education's next" so ask TRO based on identified targets with agencies with direct ties and direct harms.
Judge: References other cases, why can't Plaintiffs get TRO in 2 days b/c it is happening tomorrow or today? This is a prophaletic TRO and that's not allowed. Plaintiff: "Going back to Washington Post" and showing DOGE memo saying all agencies will be targeted, between DOGE memos, statements, and X posts, on Wednesday we will see more. This is Appointment Clause claim, is different then other TROS. Our request is drastically different b/c we aren't seeking to enjoy Agencies: It is targeted to Musk & DOGE and that they aren't using info in unconstitutional ways.
Judge: Look at relief? What is harm if they have access to the inform? How is that directed to harm?
Plaintiff: It is the use of the data. How they identify how to make cuts is through access to data.
Judge: But it is in DOGE's remit (authority) to analyze data. Also, if it already happened, it's not imminent.
Plaintiff: Yes, they were charged w/ rooting out waste. These are not advisors, based on statements, etc., it is clear that CMS, directions where to cut were from Musk & DOGE and only able to do through anaylsis of data. Giving "directives" is well beyond EO.
Judge: Again, you are for TRO: You also want to stop all personnel decisions, how does this cause harm."
Plaintiff: Only place for safe disposal of nuclear waste; Energy issued notice to terminate personnel, that includes staff who oversee disposal.
Judge: Wouldn't those employees have the claim.
Plaintiff: Our harm is state's ability to carry out its function. Lose of administration personnel, no one to pick up phone, or write checks.
Judge: TRO actions OMP access, have different claims, privacy
Judge: References other cases, why can't Plaintiffs get TRO in 2 days b/c it is happening tomorrow or today? This is a prophaletic TRO and that's not allowed. Plaintiff: "Going back to Washington Post" and showing DOGE memo saying all agencies will be targeted, between DOGE memos, statements, and X posts, on Wednesday we will see more. This is Appointment Clause claim, is different then other TROS. Our request is drastically different b/c we aren't seeking to enjoy Agencies: It is targeted to Musk & DOGE and that they aren't using info in unconstitutional ways.
Judge: Look at relief? What is harm if they have access to the inform? How is that directed to harm?
Plaintiff: It is the use of the data. How they identify how to make cuts is through access to data.
Judge: But it is in DOGE's remit (authority) to analyze data. Also, if it already happened, it's not imminent.
Plaintiff: Yes, they were charged w/ rooting out waste. These are not advisors, based on statements, etc., it is clear that CMS, directions where to cut were from Musk & DOGE and only able to do through anaylsis of data. Giving "directives" is well beyond EO.
Judge: Again, you are for TRO: You also want to stop all personnel decisions, how does this cause harm."
Plaintiff: Only place for safe disposal of nuclear waste; Energy issued notice to terminate personnel, that includes staff who oversee disposal.
Judge: Wouldn't those employees have the claim.
Plaintiff: Our harm is state's ability to carry out its function. Lose of administration personnel, no one to pick up phone, or write checks.
Judge: TRO actions OMP access, have different claims, privacy
6/ Judge: Why wouldn't those other cases provide relief that bar access to data. noted two other cases that cover access/firing. (Judges Cooper & Bates)
Plaintiff: Those were privacy act claims. We want to make sure Musk & DOGE aren't using data inappropriately.
Judge: BUT the harm you are alleging is already being considered in other cases & still broad: 7 large agencies no data/no firing?
Plaintiff: Yes, because relief has not been issued yet. Difference between enjoining agency & enjoining Musk/DOGE. That is significant distinction.
Judge: What would imminent harm re DOT & Dep't of Commerce, to Plaintiffs States.
Plaintiff: Inability to carry out programs & functions. (She isn't answering).
Plaintiff: Those were privacy act claims. We want to make sure Musk & DOGE aren't using data inappropriately.
Judge: BUT the harm you are alleging is already being considered in other cases & still broad: 7 large agencies no data/no firing?
Plaintiff: Yes, because relief has not been issued yet. Difference between enjoining agency & enjoining Musk/DOGE. That is significant distinction.
Judge: What would imminent harm re DOT & Dep't of Commerce, to Plaintiffs States.
Plaintiff: Inability to carry out programs & functions. (She isn't answering).
7/ Judge to Musk: reports of 1000 who received termination notices. Is it true?
Gov't: I can't confirm.
Judge: Wait! Not small thing, you haven't looked at it?
Gov't: I looked to what was relevant. I'll look at it.
Judge: And are additional terminations planned in next 14 days. I can't base on news reports. But you should be able to say we fired & we will fire x more.
Gov't: Starting w/ State Declaration to justify imminent injury. Only 3 states discuss data access and concerns by residents. New Mexico: Says it has data at 3 agencies. Plaintiffs say that the concern is "not the access," so the TRO shouldn't address it. All discuss possible actions, that may affect downstream: That's not imminent.
Judge: Reason that language is used is because DOGE actions have been unpredictable & scattershot. Will there been terminations/will there be?
Govt: There basic point is that Musk or DOGE is exercising sovereign power without authority--but all the actions complained about, there is a paper trail. What is clear is that you have a properly named officer exercising his authority. NO evidence of Musk or DOGE doing the terminating.
Judge: Musk hasn't been appointed/confirmed--essentially a private citizen to fire/hire/contract/terminate, without congressional.
Govt: He is a Special Government Employee. There theory is that Musk exercises authoritative "influence." THAT is not an appointment clause claim: They have not shown any formal or actual authority to make any decision himself.
Judge: I think you're going too far.
Gov't: Has state marshalled evidence of imminent harm.
Judge: Can gov't agree to hold off on mass termination while PI is litigated? If not, what is harm?
Gov't: I can't make commitment. Agency heads have authority to manage work place.
Judge: Allegation is DOGE is directing termination. Accessing data/firing people/terminating contract, i.e., essentially running government.
Gov't: Need evidence to back it up & it'd be easy to find: Someone is exercising power. And they can't show that "someone" isn't a person with power. Identify who fired. What authority. States haven't done. Just saying puppetstrings:
Judge: Has a Court ever granted TRO re Appointment Clause?
Plaintiffs: I'd have to confirm. Judge: No, I haven't found any. This is factually one of a kind situation. There may not be a TRO issued but we've never experienced this type of wielding of power. Our papers speak for themselves on points Gov't made.
Gov't: I can't confirm.
Judge: Wait! Not small thing, you haven't looked at it?
Gov't: I looked to what was relevant. I'll look at it.
Judge: And are additional terminations planned in next 14 days. I can't base on news reports. But you should be able to say we fired & we will fire x more.
Gov't: Starting w/ State Declaration to justify imminent injury. Only 3 states discuss data access and concerns by residents. New Mexico: Says it has data at 3 agencies. Plaintiffs say that the concern is "not the access," so the TRO shouldn't address it. All discuss possible actions, that may affect downstream: That's not imminent.
Judge: Reason that language is used is because DOGE actions have been unpredictable & scattershot. Will there been terminations/will there be?
Govt: There basic point is that Musk or DOGE is exercising sovereign power without authority--but all the actions complained about, there is a paper trail. What is clear is that you have a properly named officer exercising his authority. NO evidence of Musk or DOGE doing the terminating.
Judge: Musk hasn't been appointed/confirmed--essentially a private citizen to fire/hire/contract/terminate, without congressional.
Govt: He is a Special Government Employee. There theory is that Musk exercises authoritative "influence." THAT is not an appointment clause claim: They have not shown any formal or actual authority to make any decision himself.
Judge: I think you're going too far.
Gov't: Has state marshalled evidence of imminent harm.
Judge: Can gov't agree to hold off on mass termination while PI is litigated? If not, what is harm?
Gov't: I can't make commitment. Agency heads have authority to manage work place.
Judge: Allegation is DOGE is directing termination. Accessing data/firing people/terminating contract, i.e., essentially running government.
Gov't: Need evidence to back it up & it'd be easy to find: Someone is exercising power. And they can't show that "someone" isn't a person with power. Identify who fired. What authority. States haven't done. Just saying puppetstrings:
Judge: Has a Court ever granted TRO re Appointment Clause?
Plaintiffs: I'd have to confirm. Judge: No, I haven't found any. This is factually one of a kind situation. There may not be a TRO issued but we've never experienced this type of wielding of power. Our papers speak for themselves on points Gov't made.
8/ Plaintiff: Seeking to restrain DOGE & Musk & not agencies, if they don't have authority then it won't hurt agencies.
Judge: Thank you for coming in and making yourself available. I will rule motion for TRO & issue further scheduling. Hope to get out in 24 hours. If you have to come for PI briefing, what are you proposing: Plaintiff meet w/ Gov't attorney & work out.
Judge: Thank you for coming in and making yourself available. I will rule motion for TRO & issue further scheduling. Hope to get out in 24 hours. If you have to come for PI briefing, what are you proposing: Plaintiff meet w/ Gov't attorney & work out.
9/9 My gut is Court is going to now deny TRO and convert to PI.
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