No. of Recommendations: 3
We've seen a spate of nuisance lawsuits filed in front of activist left wing judges who then write ridiculous orders - a great recent example was of a Biden/Obama judge (who cares which; they're all terrible) basically ordering Trump to restore Perkins Coie's security clearances. On 1st Amendment grounds.
Yeah. No.
At any rate, calls have been increasing for the Supremes to step in rein in these rogue lower court judges. the 4th Circuit has answered that call:
https://storage.courtlistener.com/recap/gov.uscour...This case is about Trump reducing VOA to the minimum levels of staffing per statute - a number of fired employees sued to get their jobs back and a lower court sided with them. But:
On March 14, 2025, the President issued Executive Order
14238, which directed USAGM leadership to reduce the
agency to the minimum level of operations required by statute.
90 Fed. Reg. 13043. In response, USAGM placed over 1,000
employees on administrative leave, terminated nearly 600
personal-service contractors, and terminated RFA’s and
MBN’s grant agreements for the 2025 fiscal year.
Widakuswara v. Lake, No. 25-CV-1015, 2025 WL 1166400, at
*3 (D.D.C. Apr. 22, 2025). USAGM further directed its
personnel abroad to cease broadcasting through VOA. Id.
Various plaintiffs, including USAGM employees,
contractors, and grantees, filed lawsuits to challenge these
actions in our district court. In one of the cases, the district
court granted a preliminary injunction requiring USAGM to
(1) restore its employees and contractors to their pre-March 14
status, (2) restore its FY 2025 grants with RFA and MBN, and
(3) restore VOA as “a consistently reliable and authoritative
2
source of news.” Widakuswara, 2025 WL 1166400, at *18.
The court granted parallel relief in the other cases. And at stake here was
USAGM appealed and sought a stay of the first two
portions of the preliminary injunction. Because of imminent
funding deadlines, parties on both sides have requested
expedited consideration of the stay motion.1 And the court ruled:
II
To resolve the stay motion, we consider whether the
government is likely to prevail on appeal, any irreparable harm
to the government, harms to the plaintiffs and others, and the
public interest. See Nken v. Holder, 556 U.S. 418, 425–26
(2009). Applying these factors, we conclude that a stay is
warranted.This opinion is going to settle out a lot of the nonsense. Why? Because while Congress may establish an agency and fund it...they don't have jurisdiction in all aspects, as this court rules:
The government is likely to succeed on the merits because
the district court likely lacked subject-matter jurisdiction to
enjoin USAGM’s personnel actions and to compel the agency
to restore RFA’s and MBN’s FY 2025 grants.
1
The district court likely lacked jurisdiction over
USAGM’s personnel actions. “We have long held that federal
employees may not use the Administrative Procedure Act to
challenge agency employment actions.” Filebark v. U.S. Dep’t
1
Radio Free Europe, another private network funded by
USAGM, filed a similar suit and received a temporary restraining
order. See RFE/RL, Inc. v. Lake, No. 25-CV-799, 2025 WL 1232863
(D.D.C. Apr. 29, 2025). The government has filed a separate motion
to stay that order, which we do not resolve here.
3
of Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009). Congress
has instead established comprehensive statutory schemes for
adjudicating
employment disputes with the federal
government.2 See, e.g., 5 U.S.C. §§ 1204, 7121–22, 7701
(Merit Systems Protection Board); id. § 1214 (Office of the
Special Counsel); id. § 7104 (Federal Labor Relations
Authority); 22 U.S.C. § 4107 (Foreign Service Labor Relations
Board); id. § 4136 (Foreign Service Grievance Board); 41
U.S.C. §§ 7103–05 (Civilian Board of Contract Appeals).
These remedial schemes “provide[] the exclusive procedures
by which federal employees” may pursue employment- and
contractor-related claims. In Trump's last term, liberal groups gleefully used the Administrative Procedures Act. They won't be able to this time:
The district court nonetheless justified the injunction on
the ground that “this case is not simply a collection of
employment disputes” because the “facts on the record and on
the ground” suggest USAGM is being “dismantl[ed].”
Widakuswara, 2025 WL 1166400, at *11. And in their stay
briefing, plaintiffs expressly frame their claims as challenging
the “wholesale shuttering of VOA” and seeking to undo “broad
government actions” to “dismantl[e] an entire federal agency.”
Abramowitz Opp’n to Stay Mot. at 13, 18; Widakuswara
Opp’n to Stay Mot. at 14. Yet plaintiffs may not use the APA
to mount “wholesale” challenges to an agency’s “entire
program.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 893
(1990) (cleaned up). The APA cause of action, like its
sovereign-immunity waiver, provides for judicial review of
“discrete agency actions.” Norton v. S. Utah Wilderness All.,
542 U.S. 55, 64 (2004); see 5 U.S.C. §§ 702, 704. The
“dismantling” that plaintiffs allege is a collection of “many
individual actions” that cannot be packaged together and “laid
before the courts for wholesale correction under the APA.” This should zap all the USAID cases right there.
And
Thus, while USAGM’s
employees and contractors might have viable, discrete claims
with respect to their individual personnel actions, those claims
must be pursued through other remedial channels. No more bundling cases in front of a friendly judge.
Even better, you can't fly to Hawaii to find a friendly Obama judge to plea your case in front of:
The Tucker Act vests the Court of Federal Claims with
jurisdiction over claims against the United States “founded …
upon any express or implied contract with the United States.”
28 U.S.C. § 1491(a)(1).
We have long held that this
jurisdictional grant, where it applies, is exclusive and thus bars
application of the sovereign-immunity waiver set forth in the
APA. Crowley Gov’t Servs., Inc. v. Gen. Servs. Admin., 38
F.4th 1099, 1106 (D.C. Cir. 2022); see 5 U.S.C. § 702
(providing that APA waiver of sovereign immunity is
inapplicable where “any other statute that grants consent to suit
expressly or impliedly forbids the relief which is sought”). For
Tucker Act purposes, whether a claim is “founded upon” a
contract hinges on “the source of the rights upon which the
plaintiff bases its claims, and upon the type of relief sought.”
Crowley, 38 F.3d at 1106 (quoting Megapulse, Inc. v. Lewis,
672 F.2d 959, 968 (D.C. Cir. 1982)). If a claim against the
United States is contractual “at its essence,” district courts have
no power to resolve it. Bzzzzinnnnggg.
The District Court also is basically saying, "Hey, SCOTUS said this already,":
The Supreme Court recently applied these principles to
issue a stay pending appeal in a case substantially similar to
this one. In Department of Education v. California, 145 S. Ct.
966 (2025) (per curiam), a district court entered an order
“enjoining the Government from terminating various
education-related grants.” Id. at 968. The Supreme Court
stayed the order pending the disposition of an appeal to the
First Circuit and any ensuing petition for certiorari. Id. at 696.
The Court concluded that the district court likely lacked
jurisdiction to bar termination of the grants, because the Tucker
Act likely conferred jurisdiction over the dispute on the CFC.
Id. Therefore, “the APA’s limited waiver of immunity d[id]
6
not extend” to the injunction at issue, which the Court
described as an “order[] to enforce a contractual obligation to
pay money.” Id. (cleaned up).Oh, but plaintiffs threw a bunch of spaghetti against the wall to see what stuck! Won't fly either:
The plaintiffs’ non-APA claims regarding grant money are
unlikely to fare any better. Below, plaintiffs raised mandamus,
impoundment, Presentment Clause, Appropriations Clause,
Spending Clause, Take Care Clause, Separation-of-Powers, and ultra vires claims. And before our Court, plaintiffs argue
that “serious constitutional question[s]” would arise if we
concluded that the CFC had exclusive jurisdiction, as that
would deprive them of meaningful judicial review of their
constitutional claims. Widakuswara Opp’n to Stay Mot. at 18
(citing Webster v. Doe, 486 U.S. 592, 603 (1988)). But these
constitutional claims simply flow from allegations that the
Executive Branch has failed to abide by governing
congressional statutes, which does not suffice to trigger the
distinctively strong presumptions favoring judicial review of
constitutional claims. In other words...no using the APA as a cover for broad Constitutional claims. That's not enough of a bar.
What about harm? Did the government prove that?
Yep:
Irreparable Harm. The government has shown that it will
face irreparable harm absent a stay. As to the reinstatement of
USAGM employees and personal-service contractors: The
Executive Branch has a significant interest in maintaining
control over personnel matters. Wow, this is a boatracing.
And are Obama judges omniscient? Nope. They get to follow the law, too:
Of
course, we recognize that the public has an interest in the
Executive Branch’s compliance with congressional mandates.
League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 12
(D.C. Cir. 2016). By the same token, however, the public has
an interest in the Judicial Branch’s respect for the jurisdictional
boundaries laid down by Congress. Because personnel and
grant disputes directly concern the public fisc, Congress has
limited the resolution of these potentially costly claims to
specialized tribunals such as the MSPB and the CFC. We must
respect those boundaries no less than the substantive and
appropriations provisions governing the operation of USAGM. 