AIDS VACCINE ADVOCACY COALITION, et al., v. UNITED STATES DEPARTMENT OF STATE, et al.; GLOBAL HEALTH COUNCIL, et al., v. DONALD J. TRUMP, et al.
Civil Action
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
March 10, 2025
Memorandum Opinion and Order
The provision and administration of foreign aid has been a joint enterprise between our two political branches. That partnership is built not out of convenience, but of constitutional necessity. It reflects Congress and the Executive‘s “firmly established,” shared constitutional responsibilities over foreign policy, Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 62 (2015) (Roberts, C.J., dissenting), and it reflects the division of authorities dictated by the Constitution as it relates to the appropriation of funds and executing on those appropriations. Congress, exercising its exclusive Article I power of the purse, appropriates funds to be spent toward specific foreign policy aims. The President, exercising a more general Article II power, decides how to spend those funds in faithful execution of the law. And so foreign aid has proceeded over the years.
This case involves a departure from that firmly established constitutional partnership. Here, the Executive has unilaterally deemed that funds Congress appropriated for foreign aid will not be spent. The Executive not only claims his constitutional authority to determine how to spend appropriated funds, but usurps Congress‘s exclusive authority to dictate whether the funds should be spent in the first place. In advancing this position, Defendants offer an unbridled view of Executive power that the Supreme Court has consistently rejected—a
When courts have confronted Executive overreach of the foreign policy power in the past, they have stood prepared to reaffirm Congress‘s role. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-89 (1952); Zivotofsky, 576 U.S. at 62 (Roberts, C.J., dissenting) (“For our first 225 years, no President prevailed when contradicting a statute in the field of foreign affairs.“). So too they have stood firm when the Executive treads on Congress‘s spending power. See In re Aiken County, 725 F.3d 255, 259 (D.C. Cir. 2013) (Kavanaugh, J.) (granting mandamus). Three Justices aptly captured the import to our nation‘s founding: “Before this country declared independence, the law of England entrusted the King with the exclusive care of his kingdom‘s foreign affairs.” Zivotofsky, 576 U.S. at 67 (Scalia, J., joined by Roberts, C.J., and Alito, J., dissenting). But “[t]he People of the United States had other ideas.” Id. The People “considered a sound structure of balanced powers essential to the preservation of just government, and international relations formed no exception to that principle.” Id. They “adopted a Constitution that divides responsibility for the Nation‘s foreign concerns between the legislative and executive departments.” Id.
Today, this Court reaffirms these firmly established principles of our Constitution. At the same time, however, the Court is mindful of limitations on its own authority. While Congress has directed courts to “hold unlawful and set aside” certain agency action,
I. Background
A. The Political Branches’ Joint Framework For The Provision And Administration Of Foreign Aid
The general framework for foreign aid relevant here began with Congress‘s enactment of the Foreign Assistance Act of 1961 (“FAA“), Pub. L. No. 87-195, 75 Stat. 424 (codified as amended at
In addition to setting forth these principles and priorities, the FAA explicitly recognizes and authorizes the President‘s role in administering aid allocated toward those ends. With respect to various areas in which aid is to be targeted, such as health programs, economic development, anticrime efforts, military education, and peacekeeping, Congress authorizes the President “to furnish assistance” “on such terms and conditions as he may determine.” See, e.g.,
The FAA led to the creation of the United States Agency for International Development (“USAID“), first by executive order, see Exec. Order No. 10973, 26 Fed. Reg. 10469 (Nov. 3, 1961), and more than thirty years later enshrined by legislation in the Foreign Affairs Reform and Restructuring Act of 1998, see
B. The Issuance And Implementation Of Executive Order No. 14169
On January 20, 2025, the President issued an executive order entitled “Reevaluating and Realigning United States Foreign Aid.” Exec. Order No. 14169, 90 Fed. Reg. 8619 (Jan. 20, 2025). The order directed an immediate pause in “United States foreign development assistance.” Id. § 3(a). It also directed responsible department and agency heads to review each
In the days that followed, agency officials took actions to institute an immediate suspension of all congressionally appropriated foreign aid. On January 24, the Secretary of State issued a memorandum suspending all new funding obligations, pending a review, for foreign assistance programs funded by or through the State Department and USAID. Glob. Health, ECF No. 43 at 14. USAID officials also issued instructions to immediately pause all new programs, issue stop-work orders, and develop appropriate review standards. Glob. Health, ECF Nos. 58-1 to 58-4. OMB issued a memorandum ordering a temporary pause of all federal financial assistance, including assistance for foreign aid and nongovernmental organizations. Glob. Health, ECF No. 1 ¶ 47. Plaintiffs provide numerous letters terminating or suspending their awards following these actions. See, e.g., Glob. Health, ECF No. 7-4 at 2, 5, 7, 13. The record shows that within a few weeks, the State Department suspended more than 7,000 awards and terminated more than 700. See Glob. Health, ECF No. 25-1 ¶¶ 25-28. USAID proceeded at a similar pace, suspending and terminating 230 awards in a two-day span and, in total, terminating almost 500 awards and suspending thousands of others in just weeks. Glob. Health, ECF Nos. 20, 20-1, 25-1 ¶ 12.
C. The Present Litigation
Plaintiffs, who are all recipients of or have members who receive foreign assistance funding, filed these actions and sought temporary restraining orders (“TROs“) enjoining Defendants from giving effect to Executive Order No. 14169 and the subsequent implementations.1 The Court held a hearing in both cases, and Plaintiffs thereafter submitted revised proposed orders that narrowed the scope of their requested relief. AIDS Vaccine, ECF No. 16-1; Glob. Health, ECF No. 18. The Court granted Plaintiffs’ motions in part and issued a temporary restraining order on still narrower terms. AIDS Vaccine Advoc. Coal. v. U.S. Dep‘t of
State, ___ F. Supp. 3d ___, No. 25-cv-00400, 2025 WL 485324 (D.D.C. Feb. 13, 2025). The Court found that Plaintiffs had made a strong preliminary showing of irreparable harm. Id. at *2-4. Among other things, Plaintiffs provided evidence that they had been and would continue to be forced to shut down program offices, to furlough or terminate staff, and in some cases to shutter their businesses entirely. Id. They further adduced evidence that Defendants’ actions had and would continue to have a catastrophic effect on the humanitarian missions of several Plaintiffs
Although the Court determined that temporary injunctive relief was warranted, it found that Plaintiffs’ requested injunctions were overbroad and narrowed the relief in multiple ways. Id. Specifically, the Court rejected Plaintiffs’ request to enjoin the President or the Executive Order itself; limited its temporary relief only to the implementation of specific sections of the Executive Order; and rejected language that would have dictated personnel decisions or operational details in complying with the injunction. Id. The Court also declined to enjoin Defendants from taking action to enforce the terms of individual contracts, including expirations, modifications, or terminations pursuant to contractual provisions. Id. With those limitations, the Court temporarily enjoined Defendants (excluding the President) from implementing directives “suspending, pausing, or otherwise preventing the obligation or disbursement of appropriated foreign-assistance funds” or “issuing, implementing, enforcing, or otherwise giving effect to terminations, suspensions, or stop-work orders” in connection with any contracts, grants, cooperative agreements, loans, or other federal foreign assistance awards in existence as of January 19, 2025. Id. at *6-7.
In the two weeks that followed, Plaintiffs moved multiple times to enforce the Court‘s TRO and hold Defendants in contempt, providing evidence that Defendants continued their freeze and further evidence of irreparable harm to businesses and organizations across the country. AIDS Vaccine, ECF No. 26; Glob. Health, ECF No. 29; see Glob. Health, ECF No. 29-1 (discussing February 18 internal email stating that Secretary of State “has implemented a 15-day disbursement pause on all $15.9B worth of grants at the State Department” and directing recipients to “review the President‘s executive orders and recommend termination of grants that do not comply with those orders” (emphasis omitted)). The Court declined to hold Defendants in contempt and reaffirmed certain flexibility and authority Defendants reserved, consistent with the TRO. AIDS Vaccine Advoc. Coal. v. U.S. Dep‘t of State, ___ F. Supp. 3d ___, No. 25-cv-00400, 2025 WL 569381, at *1-2 (D.D.C. Feb. 20, 2025); AIDS Vaccine Advoc. Coal. v. U.S. Dep‘t of State, ___ F. Supp. 3d ___, No. 25-cv-00400, 2025 WL 577516, at *1-2 (D.D.C. Feb. 22, 2025). However, the Court also reiterated: “[T]o the extent Defendants have continued the blanket suspension, they are ordered to immediately cease it and to take all necessary steps to honor the terms of contracts, grants, cooperative agreements, loans, and other federal foreign assistance awards that were in existence as of January 19, 2025, including but not limited to disbursing all funds payable under those terms.” AIDS Vaccine, 2025 WL 569381, at *3; AIDS Vaccine, 2025 WL 577516, at *3.
Within a few days, Plaintiffs in both cases had renewed their motions to enforce. Glob. Health, ECF No. 36; Glob. Health, ECF No. 37 at 25. Plaintiffs explained
The Court held a motions hearing on February 25. At the hearing, Defendants’ counsel acknowledged that the TRO foreclosed them from giving effect to suspensions or terminations that were issued before February 13. Glob. Health, ECF No. 37 at 33-34. The Court asked Defendants’ counsel if he was “aware of steps taken to actually release those funds” over the prior two weeks, consistent with the TRO and later orders. Id. at 35. Counsel responded that he was “not in a position to answer that.” Id. For that and other reasons set forth on the record, the Court orally granted Plaintiffs’ second set of motions to enforce the TRO. The Court ordered Defendants to unfreeze funds for work completed prior to the TRO, giving Defendants an additional thirty-six hours to come into compliance. Id. at 57-58.
Defendants appealed and moved to stay the Court‘s oral ruling, asserting for the first time that it would not be possible to process payments within that time. Glob. Health, ECF No. 39. Defendants also provided additional details on suspensions and terminations since the issuance of the TRO. Glob. Health, ECF No. 42. In particular, Defendants represented that they had completed an independent, individualized review process for over 13,000 USAID and State Department awards following the Court‘s TRO, which resulted in the termination of all but 500 USAID awards and all but 2,700 State Department awards. Id.
This Court denied Defendants’ motion for a stay pending appeal, pointing out that Defendants had not previously raised the issue of feasibility. AIDS Vaccine Advoc. Coal. v. U.S. Dep‘t of State, No. 25-cv-00400, 2025 WL 625755, at *2 (D.D.C. Feb. 26, 2025). The D.C. Circuit dismissed the appeal for lack of appellate jurisdiction, noting that the February 25 order did not modify Defendants’ obligations under the TRO. AIDS Vaccine Advoc. Coal. v. U.S. Dep‘t of State, No. 25-5046, 2025 WL 621396, at *1 (D.C. Cir. Feb. 26, 2025). Defendants filed an emergency application in the Supreme Court, which issued an administrative stay. The Court subsequently denied Defendants’ application to vacate the February 25 order and instructed this Court to “clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.” Dep‘t of State v. AIDS Vaccine Advoc. Coal., 604 U.S. ___, No. 24A831, 2025 WL 698083 (U.S. Mar. 5, 2025).
Upon remand from the Supreme Court, this Court promptly ordered the parties to address the feasibility of processing payments. Glob. Health, Min. Order (Mar. 5, 2025). The Court also held a lengthy hearing on Plaintiffs’ preliminary injunction motions and the issue of feasibility. At the hearing, the parties agreed that compliance with the February 25 order required Defendants to make approximately 2,000 USAID payments and to enable drawdowns for awards that proceed on letters of credit. Glob. Health, ECF No. 58 at 131-33; see Glob. Health, ECF No. 39-1
II. Discussion
“A preliminary injunction is an extraordinary remedy never awarded as of right” and, to the contrary, “may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 24 (2008). In particular, a plaintiff must establish four factors: “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. In granting a TRO, the Court found that Plaintiffs had established these factors. As discussed below, however, the Court finds that the ground has shifted some since that time, both in terms of further actions on the part of the agencies and further development of the parties’ arguments.
The Court begins by addressing Article III standing. Upon concluding that Plaintiffs clearly have standing, the Court turns to the Winter factors. The Court finds that, although Plaintiffs have shown a likelihood of success under the APA as to the initial agency action they challenged, their challenge to Defendants’ subsequent review of awards is a closer call, and Plaintiffs have not satisfied their burden. Plaintiffs’ constitutional claims, on the other hand, have a substantial likelihood of success, particularly given Defendants’ failure to offer a defensible interpretation of the separation of powers. Because Plaintiffs have shown irreparable harm, which remains largely uncontested, and the remaining factors favor Plaintiffs, the Court grants preliminary injunctive relief in part, tailored to the scope of claims likely to succeed and the relevant harms.2
A. Plaintiffs Have Demonstrated Standing
“To establish Article III standing, the plaintiff must have ‘suffered an
Defendants did not dispute Plaintiffs’ standing at the TRO stage. In their preliminary injunction briefing, however, they now argue Plaintiffs have failed to show Article III standing, and the Court pauses to address that argument. Defendants contend that Plaintiffs allege “no more
than” a “pocketbook injury” from the terminations of their awards and are attempting to challenge “implementing acts that do not affect Plaintiffs directly.” Glob. Health, ECF No. 34 at 18 (quoting Collins v. Yellen, 594 U.S. 220, 243 (2021)). Defendants’ argument is difficult to parse and is not supported by the case law they cite. First, when considering injury in fact, financial injury, or “pocketbook injury,” is generally considered the gold standard or “prototypical form of injury in fact.” Collins, 594 U.S. at 243. Indeed, when asked at the preliminary injunction hearing, Defendants conceded that this is “recognized as an Article III injury.” Glob. Health, ECF No. 58 at 63. Here, Plaintiffs argue that the injury not only can be traced to, but flows directly from, the Executive Order and its implementations directing the suspension of congressionally appropriated foreign aid. Indeed, the Executive Order and its implementations are what caused the agreements’ review and their suspension or termination. Moreover, Defendants’ argument overlooks Plaintiffs’ injuries that go beyond their “pocketbook.” Plaintiffs have adduced evidence that Defendants’ actions have critically compromised their missions, causing disruption to programs, substantial layoffs, threats to employees’ physical safety, and impending legal action. See, e.g., AIDS Vaccine, ECF Nos. 1-11, 1-12; Glob. Health, ECF Nos. 36-1, 46-2; see also AIDS Vaccine, 2025 WL 485324, at *2-4 (summarizing evidence of harm).4
B. Plaintiffs Are Likely To Succeed On The Merits
Plaintiffs challenge Defendants’ blanket suspension of foreign aid under the APA as both arbitrary and capricious and contrary to law, and they also assert constitutional claims that Defendants’ actions violate the separation of powers. AIDS Vaccine, ECF No. 1 ¶¶ 45-73; Glob. Health, ECF No. 1 ¶¶ 111-31. The Court need only find that Plaintiffs are likely to succeed on one of these claims for this factor to weigh in favor of a preliminary injunction. That said, any relief should be tailored to the particular claims likely to succeed.
Here, Plaintiffs’ claims challenge different Executive actions. Plaintiffs’ APA claims challenge the Secretary of State‘s January 24 memorandum and other contemporaneous directives implementing Executive Order No. 14169 by suspending congressionally apportioned foreign aid, and they seek relief for the consequences that resulted from those directives. Plaintiffs’
constitutional claims challenge Defendants’ authority to unilaterally rescind or defer funds that Congress has appropriated in accordance with its spending power. The Court begins with Plaintiffs’ statutory claims and then turns to their constitutional claims.
1. Plaintiffs Will Likely Prevail, At Least In Part, On Their APA Claims
The APA permits judicial review of “final agency action” and requires a court to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
a. Plaintiffs’ Claims Seeking To Invalidate The Agencies’ Implementing Directives Are Properly Asserted Under The APA
Defendants raise a threshold challenge as to whether the APA is the right home for Plaintiffs’ claims. The APA provides for judicial review of claims “seeking relief other than money damages” and does not apply where another statute “grants consent to suit expressly or impliedly forbids the relief which is sought.”
Defendants’ argument is unpersuasive for several reasons. First, Plaintiffs’ APA claims, by their terms, challenge specific agency actions—here, the implementing policy directives—and ask the Court to “hold them unlawful and set them aside.” Glob. Health, ECF No. 1 ¶¶ 112-14, 116-17, 122. That‘s precisely the relief that is afforded indeed, required—by and routinely granted under the APA. See
Indeed, even to the extent that payments might result from Plaintiffs’ APA claims, they do not resemble a “money
Second, Defendants’ argument that Plaintiffs’ APA claims are contract claims that must proceed under the CDA or Tucker Act is unpersuasive. The D.C. Circuit has “explicitly rejected the ‘broad’ notion ‘that any case requiring some reference to or incorporation of a contract is necessarily on the contract and therefore directly within the Tucker Act’ because to do so would ‘deny a court jurisdiction to consider a claim that is validly based on grounds other than a contractual relationship with the government.‘” Crowley Gov‘t Servs., Inc. v. Gen. Servs. Admin., 38 F.4th 1099, 1107 (D.C. Cir. 2022) (quoting Megapulse, Inc. v. Lewis, 672 F.2d 959, 967-68 (D.C. Cir. 1982)). “Exclusive jurisdiction in Claims Court under the Tucker Act does not lie ‘merely because [a plaintiff] hints at some interest in a monetary reward from the federal government or because success on the merits may obligate the United States to pay the complainant.‘” Id. at 1108 (alteration in original) (quoting Kidwell v. Dep‘t of Army, 56 F.3d 279, 284 (D.C. Cir. 1995)). The question under both the CDA and Tucker Act is whether the action “is at its essence a contract claim.” Id. at 1106 (quoting Megapulse, 672 F.2d at 967); see A&S Council Oil Co. v. Lader, 56 F.3d 234, 240 (D.C. Cir. 1995). That inquiry turns on (1) “the source of the rights upon which the plaintiff bases its claims,” and (2) “the type of relief sought (or appropriate).” Crowley, 38 F.4th at 1106 (quoting Megapulse, 672 F.2d at 968).
As set forth above, “the face of the complaint” in both cases makes clear that Plaintiffs are asserting a right “to be free from government action beyond [its] congressional authority.” Id. at 1108 (alteration in original) (citation omitted). The sources of Plaintiffs’ claims “are the statutes identified in [their] complaint[s],” id., which include the APA, the Impoundment Control Act, the Anti-Deficiency Act, and the Further Consolidated Appropriations Act of 2024. AIDS Vaccine, ECF No. 1 ¶¶ 45-73; Glob. Health, ECF No. 1 ¶¶ 79-110.
To be sure, some Plaintiffs or other parties may have individual claims sounding in contract that could be brought against their respective contracting counterparties. The critical point is that here Plaintiffs assert APA claims to invalidate agency policy directives, regardless of any breach of any agreement or the extent of their losses. See Kidwell, 56 F.3d at 284 (“Even where a monetary claim may be waiting on the sidelines, as long as the plaintiff‘s complaint only requests non-monetary relief that has considerable value independent of any future potential for monetary relief—that is, as long as the sole remedy requested is declaratory or injunctive relief that is not negligible in comparison with the potential monetary recovery—we respect the plaintiff‘s choice of remedies and treat the complaint as something more than an artfully drafted effort to circumvent
the jurisdiction of the Court of Federal Claims.” (internal quotation marks and citations omitted)). Plaintiffs’ claims are properly asserted under the APA.8
“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Rather, the court “must confirm that the agency has fulfilled its duty to examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Ark Initiative v. Tidwell, 816 F.3d 119, 127 (D.C. Cir. 2016) (internal quotation marks omitted) (quoting State Farm, 463 U.S. at 43). “[A]n agency rule would be arbitrary and capricious if the agency has relied
on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. (alteration in original) (quoting State Farm, 463 U.S. at 43).In granting a TRO, the Court concluded that Plaintiffs were likely to succeed in showing that Defendants’ implementation of a blanket suspension of congressionally appropriated foreign aid pending review was arbitrary and capricious. The Court explained that there was nothing in the record that provided “a rational connection between the facts found and the choice made” to impose an immediate and wholesale suspension of foreign aid in order to review programs. Moreover, nothing in the record suggested that Defendants considered and had a rational reason for disregarding the massive reliance interests of businesses and organizations that would have to shutter programs or close their doors altogether. The blanket suspension thus “entirely failed to consider an important aspect of the problem.” AIDS Vaccine, 2025 WL 485324, at *5.
This continues to be true with respect to the original implementing directives. Defendants have yet to offer any explanation, let alone one supported by the record, for why a blanket suspension setting off a shockwave and upending reliance interests for thousands of businesses and organizations around the country was a rational precursor to reviewing programs. Instead, Defendants assert that the Executive Order and January 24 implementing memorandum
Across the United States government, it is currently impossible to access sufficient information in one place to determine whether the foreign assistance policies and interests supported by appropriations are not duplicated, are effective, and are consistent with President Trump‘s foreign policy. The Department needs a centralized repository from which senior Department, USAID officials, Ambassadors, missions and others can draw sufficiently detailed information from which the Secretary can make judgments. Further guidance regarding a new or updated repository and mandatory bureau submissions to it will be forthcoming.
Glob. Health, ECF No. 43 at 14.
The desire to review programs for efficiency or consistency, and to access information in one place, does not have a rational connection to the directives to proceed with a sudden, blanket suspension of congressionally appropriated aid. Nor do any of these articulated goals demonstrate consideration of the immense reliance interests among businesses and other organizations across the country. When an agency suddenly changes course, it must recognize “longstanding policies may have ‘engendered serious reliance interests that must be taken into account.‘” Dep‘t of Homeland Sec. v. Regents of Univ. of Cal., 591 U.S. 1, 30 (2020) (quoting Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 222 (2016)). There is, of course, nothing inherently arbitrary and capricious about agencies conducting a review of aid programs for these purposes or building a centralized repository. But these assertions alone do not provide a rational explanation for why such a review required an immediate and wholesale suspension of all aid—including many longstanding programs taking place pursuant to contractual terms—and do not bear on the failure to consider the reliance interests of small and large businesses that would have to shutter programs or close altogether and furlough or lay off swaths of Americans in the process.9
Defendants also insist that the funding freeze was not “comprehensive or undifferentiated” because the Secretary of State approved certain waivers, including for foreign military financing, emergency food assistance, and legitimate expenses incurred before the pause went into effect. Glob. Health, ECF No. 34 at 37. But none of those waivers involve or demonstrate consideration of the massive reliance interests
Despite pointing to the possibility of waivers again in their preliminary injunction briefing, Defendants have not proffered any evidence to rebut the showing Plaintiffs made at the TRO stage. Meanwhile, Plaintiffs offer even more evidence that the waiver process has been largely irrelevant. See, e.g., Glob. Health, ECF No. 29-5 ¶ 4 (plaintiff received no payments in week after entry of TRO, including for programs that had received waivers); AIDS Vaccine, ECF No. 26-3 ¶¶ 37-38 (programs receiving waivers were not able to restart due to lack of funding); AIDS Vaccine, ECF No. 46-1 at 4 (internal USAID memorandum concluding that successful implementation of waiver process “was not possible due to administrative and bureaucratic challenges, including contradictory and shifting guidance regarding approval for required activities and failure of Agency leadership to process disbursement of funds for activities once approved“).
Because the current record does not include “a rational connection between the facts found and the choice made” and indicates Defendants “entirely failed to consider an important aspect of the problem,” Plaintiffs are likely to succeed on their
c. Although A Close Question, Plaintiffs Will Likely Not Prevail In Showing That Defendants’ Subsequent Terminations Flow From The Original Directives In Violation Of The APA
Although Plaintiffs are likely to succeed in showing Defendants’ implementing directives violated the
As described above, the
After the Court‘s TRO, however, Defendants claim they conducted a new individualized and comprehensive review of awards. In the interest of tailoring its TRO to the reliance interests at stake, the Court did not enjoin Defendants from taking actions based on the particular terms of individual contracts. AIDS Vaccine, 2025 WL 485324, at *6-7; see also AIDS Vaccine, 2025 WL 569381, at *2 (explaining that “nothing in the TRO limits the agencies from conducting an individualized review of agreements and taking action as to a particular agreement where the agency determines that it has lawful authority to do so“). The Court explained that “[w]hile agency determinations based on wholly independent legal authority and justification such as the terms of particular agreements or sets of agreements, rather than deriving from a general directive to suspend aid, may be subject to some other legal challenge, whether it be under the
As described above, in the roughly two weeks following the TRO, Defendants issued thousands of terminations, ultimately canceling roughly 9,900 of 13,100 USAID and State Department awards. See Glob. Health, ECF No. 42 at 16. Defendants attest that these terminations were the result of an independent review process based on the terms of the programs and the agencies’ independent legal authority to terminate them. They rely principally on a declaration from USAID Deputy Administrator Pete Marocco, which states: “USAID led a rigorous multi-level review process that began with spreadsheets including each contract, grant, or funding instrument where each line of the spreadsheeting reflected one such agreement and included information about the recipient, the amount of the award, the subject matter, and a description of the project that often included the location of the project.” Glob. Health, ECF No. 39-1 ¶ 5. Marocco further describes a process in which policy staff performed an initial review of whether individual agreements were in line with foreign policy priorities, followed by a senior policy official‘s review, followed by Marocco‘s review, followed by the Secretary of State‘s review. Id. The declaration describes a similar process for State Department awards. Id. ¶ 6. As of February 26, Defendants indicated that the review
Plaintiffs in both cases opted to rely on their initial TRO motions at the preliminary injunction stage. Accordingly, their opening motions do not address the post-TRO landscape, and their arguments were limited to their reply briefs and oral argument. Their principal argument is that the review process was a sham. Glob. Health, ECF No. 46 at 16-17. Plaintiffs assert that Defendants “were terminating and suspending hundreds of millions of dollars in awards based on a one-line summary, without actually looking at the award documents themselves, without consulting the personnel who manage the project, and, at least in some cases, without even knowing ‘the location of the project.‘” Id. at 17. They highlight, for instance, Marocco‘s assertion that the first stage of the review process “often included the location of the project” as a demonstration of how shallow the review was. Id. at 16 (quoting Glob. Health, ECF No. 39-1 ¶ 5). Plaintiffs also say it is “implausible” that the Secretary of State or a group of political appointees could have “engaged in a meaningful individualized review of the hundreds of contracts and awards terminated prior to or after the Court‘s TRO.” Id. at 17 n.7. They support these arguments with declarations from contracting officers who dispute that any case-by-case review could have plausibly taken place. Glob. Health, ECF No. 42-1 ¶ 36; AIDS Vaccine, ECF No. 26-3 ¶ 49.
The Court does not reach the merits of these arguments because Plaintiffs have not adequately shown that they arise from the same agency action challenged in this case. Even accepting that the review process described by Marocco took place in a cursory manner, that does not make it the same agency action as the implementing memoranda, as opposed to a distinct, flawed agency action that must be challenged as such.11
Plaintiffs come closer in their argument that the subsequent review was pretext to turn the blanket suspension of foreign aid funds into a near-blanket termination of those funds. Relying on Department of Commerce v. New York, 588 U.S. 752 (2019), Plaintiffs argue that “[n]ot a shred of evidence suggests that Defendants had the terms and conditions of award agreements in mind when they initiated blanket suspensions and terminations.” AIDS Vaccine, ECF No. 45 at 4-5. In doing so, they cite some evidence that supports their allegation of pretext. For example, Plaintiffs point to terminations following Defendants’ review that make no reference to the terms of agreements or legal authority. See AIDS Vaccine, ECF No. 44 at 7-10. They also identify several terminations after the review process that continued to assert the termination was “part of” or “in alignment with” the Executive Order. AIDS Vaccine, ECF No. 40-4 ¶ 24; Glob. Health, ECF Nos. 55-2 to 55-6. And Plaintiffs provide anonymous declarations, including one showing that a senior official instructed contracting officers to follow earlier terminations with expanded termination notices “tailored to the specific award and implementing partner, referencing
Plaintiffs’ proposed relief highlights further difficulty with their argument. They ask for an order requiring Defendants to revoke all terminations and suspensions issued since January 20—a total of roughly 9,900 awards—and to develop plans to restart those programs within ten days. Glob. Health, ECF No. 46-6 at 2-3. Plaintiffs also propose that Defendants be required to submit status reports to the Court every two weeks providing “an individualized statement of reasons” for any new termination or suspension. Id. at 4. And they do so without articulating a meaningful standard for the Court to distinguish between those terminations that are still affected by the original implementing directives and those that are not. This would devolve into the type of intensive supervision of day-to-day agency activities, as well as inquiry into the terms of individual awards, that the Court has expressly rejected. The Court accordingly finds that Plaintiffs are unlikely to succeed on their
2. Plaintiffs Will Likely Prevail On Their Constitutional Claims
Plaintiffs also assert that Defendants are acting in violation of the separation of powers, including Congress‘s shared power over foreign policy, its exclusive power over spending, and the expression of those powers through statutes that constrain the Executive‘s authority in relation to foreign aid spending and the impoundment of appropriated funds. These claims are distinct in scope from Plaintiffs’
In considering claims related to Executive power, including with respect to foreign affairs, the Supreme Court has applied “Justice Jackson‘s familiar tripartite framework.” Zivotofsky, 576 U.S. at 10 (citing Youngstown, 343 U.S. at 635-38 (Jackson, J., concurring)). The first category of this framework recognizes that when “the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown, 343 U.S. at 635 (Jackson, J., concurring).
Here, Plaintiffs argue that Defendants are operating in the third category of the tripartite framework, in which they have taken “measures incompatible with the expressed or implied will of Congress.” See AIDS Vaccine, ECF No. 45 at 8. Plaintiffs observe that, consistent with the purposes outlined in the Foreign Assistance Act of 1961, Congress has explicitly appropriated foreign aid funds for specified purposes. In March of last year, Congress passed the Further Consolidated Appropriations Act of 2024, Pub. L. No. 118-47, 138 Stat. 460. That act provides: “For necessary expenses to carry out the provisions of chapters 1 and 10 of part I of the Foreign Assistance Act of 1961, for global health activities, in addition to funds otherwise available for such purposes, $3,985,450,000, to remain available until September 30, 2025, and which shall be apportioned directly to the United States Agency for International Development.” 138 Stat. at 740. It further specifies various purposes for which this appropriation “shall be made available,” including “training, equipment, and technical assistance” to build public health institutions; specific health programs like child survival, maternal health, and immunization; and programs for the prevention, treatment, and control of HIV/AIDS, tuberculosis, polio, malaria, and other infectious diseases.
Congress has further asserted its spending power in the Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297, which explicitly prohibits the President from impounding appropriated funds without following certain procedures. For permanent impoundments or “rescissions,” Congress specified that if the President “determines that all or part of any budget authority will not be required to carry out the full objectives or scope of programs for which it is provided” or “should be rescinded for fiscal policy or other reasons,” he must “transmit to both Houses of Congress a special message” addressing the amount, reasons, impact, and other information related to the proposed recission of funds.
Defendants do not object to the constitutionality of any of these statutes. They do not, for instance, contend Congress exceeded its authority by mandating that funds be used for specified foreign aid purposes or by mandating the President follow procedures before permanent or temporary impoundment. At the same time, the record here shows that Defendants are acting to rescind or defer the funds Congress has appropriated and have no intent to spend them. Plaintiffs point to multiple public statements in which the President and other senior officials have said Defendants’ actions are being undertaken to end foreign aid funding. For example,
This is accordingly a circumstance in which the Executive‘s power is “at its lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). As a result, Defendants’ actions must be “scrutinized with caution,” and they “can rely only upon [the President‘s] own constitutional powers minus any constitutional powers of Congress over the matter.” Id. Here, the President‘s powers come from his general Article II responsibility to serve as the Executive and take care that the laws be faithfully executed.
Here, Defendants do not contest that they are declining to spend appropriated funds based on policy objections—indeed, they have explicitly said so. See Exec. Order No. 14169 § 2 (“[N]o further United States foreign assistance shall be disbursed in a manner that is not fully aligned with the foreign policy of the President of the United States.“); Glob. Health, ECF No. 43 at 15 (January 24 memorandum directing departments and agencies to ensure that all foreign assistance is aligned with the President‘s foreign policy agenda). Their principal argument, repeatedly asserted throughout their brief, is that the President has “vast and generally unreviewable” powers in the realm of foreign affairs. Glob. Health, ECF No. 34 at 2, 10, 24. Defendants do not ground their position in any specific provision of the Constitution or articulate any limits to this expansive authority. Nor do they engage in any analysis of how these asserted powers relate to those vested in Congress under Article I of the Constitution; indeed, Defendants never cite Article I or mention Congress‘s spending power. Defendants instead rely on broad language from United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), to argue that the President is “the sole organ of the federal government in the field of international relations.” Glob. Health, ECF No. 34 at 25.
This argument falls short for several reasons. First and foremost, the Supreme Court has explicitly rejected it. The Court has explained that Curtiss-Wright does not stand for such “unbounded power.” Zivotofsky, 576 U.S. at 20; see also id. at 66 (Roberts, C.J., dissenting) (explaining that Supreme Court cases “have never accepted such a sweeping understanding of executive power“). To the contrary, the Supreme Court has recognized that, notwithstanding the Executive‘s important role in foreign affairs, “it is essential the congressional role in foreign affairs be understood and respected.” Id. at 21 (majority opinion). To repeat, “whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law.” Id. Or, as the Chief Justice aptly summarized, the Constitution “allocates some foreign policy powers to the Executive, grants some to the Legislature, and enjoins the President to ‘take Care that the Laws be faithfully executed.‘” Id. at 62 (Roberts, C.J., dissenting) (quoting
Indeed, the claim to “vast and generally unreviewable” power to impound congressionally appropriated aid is weaker here than in past invocations in the foreign affairs context. In Zivotofsky, for instance, the Executive pointed to a long line of “judicial precedent and historical practice” showing that the power at issue, recognition, was “for the President alone,” and the
Aside from their unbounded view of Executive power in foreign policy, Defendants observe that Congress‘s “appropriations acts grant the President significant discretion in how to use these funds.” Glob. Health, ECF No. 34 at 33. They also cite City of New Haven v. United States, 809 F.2d 900, 901 (D.C. Cir. 1987), to argue that a “pause” in funding does not qualify as an impoundment. Glob. Health, ECF No. 34 at 35. These arguments are unavailing. No one does or could doubt that the Executive is afforded significant discretion in administering the funds appropriated or, as Defendants put it, “how to use these funds.” See, e.g.,
Moreover, the notion that the Executive has simply “paused” appropriations does not avoid the problem. As an initial matter, the contention is belied by public statements indicating that this action has been taken to save taxpayer money and end USAID for policy reasons, which Defendants have not disputed when given the opportunity. And the case Defendants cite
The Court accordingly finds that Plaintiffs are likely to succeed on their separation of powers claims and rejects Defendants’ unbridled understanding of the President‘s foreign policy power, which would put the Executive above Congress in an area where it is “firmly established” that the two branches share power, Zivotofsky, 576 U.S. at 62 (Roberts, C.J., dissenting), where Congress is exercising one of its core powers, and where there is no constitutional objection to the laws it has made.18
The Court‘s order granting in part Plaintiffs’ motions for a TRO described evidence of the immense irreparable harm to businesses and organizations across the country, which has, at least to date, gone unrebutted by Defendants. AIDS Vaccine, 2025 WL 485324, at *2-4. As the Court explained, this included immense financial harm to Plaintiffs and, in many cases, forced them to significantly cut down on staff or otherwise reduce core operations. A few examples are illustrative:
- One plaintiff, a large investigative journalism organization, has USAID and State Department grants that constitute 38% of its budget, supporting investigations into corruption, sanction violations, and other wrongdoing. AIDS Vaccine, ECF No. 13-4 ¶¶ 2, 6-7, 9. Due to the suspension of appropriated funding and stop-work orders received as a result, the organization has been forced to cut 43 of 199 staff members, with most remaining being moved to a shorter work week. Id. ¶ 12. The organization has had to cancel events, cut travel for reporting, and freeze new equipment purchases. Id. The organization attests that the disruption will continue absent relief. Id. ¶ 13.
- A nonprofit plaintiff focused on protecting refugees and asylum seekers has had to lay off 535 staff members since receiving termination and suspension notices for multiple grants. Glob. Health, ECF No. 7-3 ¶¶ 3-4, 13. It has been forced to shutter program offices and defer payments to vendors. Id. ¶ 21.
- A plaintiff representing small businesses across all sectors attests that the suspension included USAID failing to pay its members for months of unpaid invoices. Glob. Health, ECF No. 7-2 ¶ 8. This has forced small businesses to furlough “most U.S. national staff in home offices and on contracts, and terminate foreign national staff or risk keeping them and being uncertain of payments under stop work orders.” Id. ¶ 10.
- Another plaintiff focused on addressing the global HIV/AIDS epidemic has already been forced to lay off seven employees and will lay off ten more over the next month if the suspension of appropriated foreign aid continues. AIDS Vaccine, ECF No. 13-2 ¶ 12.
In addition, several plaintiffs had attested to how the blanket suspension of funds undermined their core missions and jeopardized vital services to vulnerable populations. For example:
- One plaintiff asserts that the suspension of appropriated foreign aid has disrupted critical health programs, including maternal and child health programs and infectious disease prevention efforts administered by its member organizations. Glob. Health, ECF No. 7-1 ¶ 8. One of those member organizations reports that a $20 million project to support the development
of hospital accreditation in Cambodia has been suspended. Id. ¶ 8(a). Another reports that a stop-work order has disrupted a total of $4 million in funding for American Schools and Hospitals Abroad grants in Nepal and Vietnam. Id. ¶ 8(c). And another reports that the freeze has delayed several time-sensitive antimalaria campaigns that are expected to benefit millions of people in Kenya, Uganda, Ghana, Ethiopia, and Zimbabwe. Id. ¶ 8(d). The plaintiff attests that the suspension of appropriated foreign aid funding “is an existential threat to [its] members and their life-saving work.” Id. ¶ 11. - Another plaintiff reports that it can no longer fund shelters for minors in Central America trying to escape recruitment into criminal gangs. Glob. Health, ECF No. 7-7 ¶ 10.
- A different plaintiff explains that it has abruptly stopped providing medical services for hundreds of adolescents and young students in need in Bangladesh. Glob. Health, ECF No. 7-8 ¶ 12(a).
- An additional plaintiff that supports HIV prevention research and the rollout of HIV prevention medication to high-risk communities in various African countries asserts that the funding freeze has disrupted clinical trials and the rollout of life-saving medication. AIDS Vaccine, ECF No. 13-2 ¶¶ 3-4, 11.
Based on this evidence, the Court concluded that Plaintiffs had made a sufficient preliminary showing that Defendants’ actions threaten[ed] the very existence of [their] business.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). And they had likewise shown that the “obstacles” created by Defendants’ conduct “make it more difficult for the [plaintiffs] to accomplish their primary mission.” League of Women Voters of United States v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016).19
Over the weeks that have followed, Plaintiffs have continued to produce more evidence of irreparable harm. A supplemental declaration from one plaintiff, for example, explains that the funding freeze has impacted its ability to meet financial obligations, which has in turn placed staff at risk of harassment, intimidation, and potential physical harm. Glob. Health, ECF No. 46-2 ¶ 2. Personnel have also been stranded in high-risk environments due to insufficient repatriation funding. Id. ¶ 3. And the loss of funding has forced security cutbacks, jeopardizing sensitive equipment and program-related data. Id. ¶ 6. As of February 26, the same plaintiff had furloughed around two-thirds of its
Several declarations from the Global Health Plaintiffs further illustrate the ongoing irreparable harm:
- One plaintiff attests that if USAID does not pay outstanding invoices forthwith, the plaintiff will be in serious legal jeopardy in both the United States and other countries. Glob. Health, ECF No. 36-1 ¶ 7. The plaintiff will be forced to default on numerous contracts, including for corporate insurance and legal services—all while it is facing threatened legal action from staff members because it does not have funds to pay employees. Id. ¶¶ 8-9. And the risks to the plaintiff “are worsening by the day,” as it faces an increased likelihood of not being able to repatriate staff members, pay local legal counsel, or meet obligations to local communities. Id. ¶¶ 12, 15-17.
- Another plaintiff explains that it has been forced to furlough an additional 124 staff members since the TRO was issued because it still has not received any payments. Glob. Health, ECF No. 36-2 ¶¶ 3, 5. Organizational staff and their families “are suffering ongoing financial hardship that worsens with each passing day of reduced or no compensation.” Id. ¶ 5. The plaintiff is in imminent danger of being forced to suspend thousands of staff members without pay, which could violate labor laws in countries where it operates. Id. ¶ 9.
- Still another declaration explains that without imminent payment, a small business focused on energy and infrastructure will be forced to close its doors due to insolvency and to walk away from active federal contracts. Glob. Health, ECF No. 36-3 ¶¶ 5-6.
- Likewise, another plaintiff planned to lay off “a substantial number of its workforce” due to the lack of funding and will have to shutter its doors in all but five to seven of its twenty-four country offices. Glob. Health, ECF No. 36-4 ¶¶ 4, 6.
Defendants do not rebut these existential threats to the survival and core missions of businesses and organizations around the country. They respond that there is no irreparable harm because there is an ongoing, individualized review process that “could prevent the harm from transpiring at all.” Glob. Health, ECF No. 34 at 39. And they insist that any damage to Plaintiffs and other enterprises is recoverable. Id. at 40-42. Defendants’ point is well taken in one respect—the Court has found that Plaintiffs are not likely to succeed on this record as it relates to terminations resulting from Defendants’ subsequent review process. And, as discussed below, the Court‘s relief must be tailored in that respect.
But Defendants’ argument is unpersuasive as it relates to irreparable harm. Defendants have now stated that they have completed their review process and have represented that they will cancel the vast majority of congressionally appropriated foreign aid. While it is true that the relevant Executive action here has the effect of withholding substantial amounts of funds, the harm here goes to the very subsistence of the organizations, many of which are on the brink of shuttering entirely, and poses an existential threat to
D. The Balance Of The Equities And The Public Interest Favor Plaintiffs
The final two factors, balancing the equities and the public interest, generally “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009); see Pursuing Am.‘s Greatness v. Fed. Election Comm‘n, 831 F.3d 500, 511 (D.C. Cir. 2016). Here, they also weigh in Plaintiffs’ favor.
As the D.C. Circuit has explained, “[t]here is generally no public interest in the perpetuation of unlawful agency action.” League of Women Voters, 838 F.3d at 12. “To the contrary, there is a substantial public interest in having governmental agencies abide by the federal laws that govern their existence and operations.” Id. (internal quotation marks and citation omitted). Additionally, the harms that Plaintiffs have suffered—and will continue to suffer absent preliminary injunctive relief—are stark. Plaintiffs have adduced ample evidence that the funding freeze has had dire humanitarian consequences and has devastated businesses and programs across the country. Defendants still have made no effort to rebut that showing.
Defendants respond that they are undertaking a thorough review of foreign aid programs to determine which ones “make sense for the American people,” and they assert that the public has an interest “in the Executive effectuating foreign affairs.” Glob. Health, ECF No. 34 at 44-45 (citation omitted). But the Executive‘s ability to review foreign aid programs is not at issue here. The Court‘s TRO order explicitly declined to “enjoin any aspect of the Government‘s ability to conduct a comprehensive internal review of government programs.” AIDS Vaccine, 2025 WL 485324, at *6. Indeed, the Court has concluded above that Plaintiffs are not likely to succeed in challenging Defendants’ review process on this record. See supra section II.B.1.c. And while the public no doubt has an interest in the Executive carrying out his important role in foreign affairs, it also has an interest in ensuring those duties are carried out in accordance with law, including the
E. Scope Of Relief
“Crafting a preliminary injunction is an exercise of discretion and judgment,
As described above, the Court finds that Plaintiffs are likely to succeed on their
The Court concludes that Plaintiffs’ proposed relief is overbroad in two additional respects as to their
Second, and relatedly, the Court cannot adopt Plaintiffs’ proposal that Defendants achieve “payment processing rates equivalent to those achieved before January 20, 2025.” Glob. Health, ECF No. 46-6 at 3. In denying Defendants’ application to vacate this Court‘s order enforcing its TRO, the Supreme Court emphasized the need for “due regard for the feasibility of any compliance timelines.” AIDS Vaccine, 2025 WL 698083. While that direction was given in the context of the TRO, it applies equally to the preliminary injunction. This Court has since invited both written and oral submissions on the issue of feasibility. During its hearing concerning feasibility, the Court sought the parties’ views on creating a clear and feasible benchmark
The parties agree that, as of the time of the appeal, there were roughly 2,000 outstanding payments to be processed by USAID, along with additional payments to be processed by State. Glob. Health, ECF No. 58 at 131-33. They also agree that both USAID and State could previously “process several thousand payments each day.” Glob. Health, ECF No. 39-1 ¶ 15. As a benchmark of the current state, Defendants have submitted that after the Supreme Court lifted its administrative stay, they were able to create the capacity to process about 100 payments over one night. Glob. Health, ECF No. 54 at 2. In light of these benchmarks, the Court found it feasible for Defendants to process roughly 1,200 payments to Plaintiffs over the course of a four-day period, or roughly 300 payments per day. See Glob. Health, ECF No. 53 at 1 (stating that Global Health Plaintiffs have around 1,200 outstanding invoices). Although the Court has invited submissions and discussions related to feasibility, there has not been any specific objection to this rate. The Court accordingly finds it appropriate and feasible to order Defendants to continue to process payments at a rate of approximately 300 per day. Although this is a small fraction of the rate at which payments were processed in a single day before January 20, 2025, it nonetheless allows for Defendants to come into compliance within a relatively short period, at a demonstrated level of current capability. The Court may revisit this benchmark if Defendants make a specific showing of legitimate feasibility concerns.
As to the separation of powers claims, Plaintiffs’ proposed relief is overbroad insofar as it would specifically order Defendants to continue to contract with them. As discussed, the violation here results from the Executive‘s decision to unlawfully impound funds appropriated by Congress for specific foreign aid purposes. To be sure, Plaintiffs observe that they occupy a large share of the sector serving the relevant foreign aid purposes, as demonstrated by the severe harm they have faced as a result of the disruption to the sector, and accordingly it may well be that the only or most practical way for Defendants to carry out their duty to spend the funds is to revive existing partnerships, as Plaintiffs suggest. See Glob. Health, ECF No. 58 at 47-48. However, the separation of powers dictates only that the Executive follow Congress‘s decision to spend funds, and both the Constitution and Congress‘s laws have traditionally afforded the Executive discretion on how to spend within the constraints set by Congress. The appropriate remedy is accordingly to order Defendants to “make available for obligation the full amount of funds Congress appropriated” under the relevant laws. See City of New Haven v. United States, 634 F. Supp. 1449, 1460 (D.D.C. 1986), aff‘d, 809 F.2d 900 (D.C. Cir. 1987); cf. Aiken County, 725 F.3d at 260 (granting mandamus relief and
III. Conclusion
For the reasons above, the Court grants in part and denies in part Plaintiffs’ motions for a preliminary injunction. Consistent with this opinion, it is hereby ORDERED:
- Defendants Marco Rubio, Peter Marocco, Russell Vought, the U.S. Department of State, the U.S. Agency for International Development, and the Office of Management and Budget (the “Restrained Defendants“) and their agents are enjoined from enforcing or giving effect to sections 1, 5, 7, 8, and 9 of the January 24 State Department memorandum, and any other directives that implement sections 3(a) and 3(c) of Executive Order No. 14169, by giving effect to any terminations, suspensions, or stop-work orders issued between January 20, 2025, and February 13, 2025, for any grants, cooperative agreements, or contracts for foreign assistance. Accordingly, the Restrained Defendants shall not withhold payments or letter of credit drawdowns for work completed prior to February 13, 2025.
- The Restrained Defendants are enjoined from unlawfully impounding congressionally appropriated foreign aid funds and shall make available for obligation the full amount of funds that Congress appropriated for foreign assistance programs in the Further Consolidated Appropriations Act of 2024.
It is further ORDERED that the Restrained Defendants shall take all steps necessary to effectuate this order and shall provide written notice of this order to all recipients of contracts, grants, and cooperative agreements for foreign assistance that were in existence between January 20, 2025, and February 13, 2025. The parties shall file a joint status report by March 14, 2025, that apprises the Court of Defendants’ compliance with this order and proposes a schedule for next steps in this matter. The Court is prepared to hold a prompt hearing at the request of the parties to address any feasibility concerns. The February 13 temporary restraining order issued by the Court is hereby dissolved.
SO ORDERED.
AMIR H. ALI
United States District Judge
Date: March 10, 2025
Notes
Defendants also argue in passing that their directives to suspend aid are not sufficiently circumscribed and discrete agency actions to be challenged under the APA, citing cases where plaintiffs sought “wholesale improvement” of an agency‘s programs. Glob. Health, ECF No. 34 at 31-32 (citing Ala.-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 490 (5th Cir. 2014)). But the agency directives Plaintiffs challenge are precisely the sort of “agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy” that the APA explicitly includes and is routinely applied to.
Defendants also claim that violation of the Impoundment Control Act cannot be a basis for finding action contrary to law under the
Finally, Defendants argue that the AIDS Vaccine Plaintiffs’ separate claim under the Take Care Clause cannot be a basis for affirmative relief. Glob. Health, ECF No. 34 at 26. However, the Court need not reach that claim or argument since it concludes that Plaintiffs are likely to succeed on their separation of powers claims.