Case Information
IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION
The Sustainability Institute et al. , Case No. 2:25-cv-2152-RMG Plaintiffs,
v.
ORDER
Donald J. Trump, in his official capacity as
President of the United States, et al.
Defendants.
The Court conducted a hearing on April 23, 2025 to address the issue of jurisdiction and review recent developments regarding the grants at issue in this case. The Court memorializes and
supplements its rulings from the bench at the April 23 hearing in two sections below. First, the
Court addresses the issue of jurisdiction. Second, the Court addresses supplementing the record.
I. Jurisdiction
Plaintiffs bring this case under the United States Constitution and the APA, 5 U.S.C.
§§ 702, 704, alleging that Defendants improperly froze Plaintiffs’ grant funds appropriated by
Congress under the Inflation Reduction Act (“IRA”) and the Infrastructure Investment and Jobs
Act (“IIJA”). Defendants argue that this court lacks subject matter jurisdiction to hear Plaintiffs
claims because (A) the Tucker Act provides the Court of Federal Claims with exclusive
jurisdiction over Plaintiffs’ claims and (B) Plaintiffs are challenging funding decisions committed
to agency discretion by law which are not subject to Administrative Procedure Act (“APA”)
review.
A. Tucker Act
“Absent a wavier, sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer , 510 U.S. 471, 475 (1994); see United States v. Mitchell , 463 U.S.
206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and
that the existence of consent is a prerequisite for jurisdiction.”).
The Tucker Act confers jurisdiction upon the Court of Federal Claims over specific categories of actions brought against the United States and waives the Government’s sovereign
immunity for those actions. 28 U.S.C.A. § 1491, see Fisher v. United States , 402 F.3d 1167, 1172
(Fed. Cir. 2005). Specifically, “[t]he Tucker act grants jurisdiction to the United States Court of
Federal Claims ‘to render judgment upon any claim against the United States founded either upon
the Constitution, or any Act of Congress or any regulation of an executive department, . . . or for
liquidated or unliquidated damages in cases not sounding in tort.’” Randall v. United States , 95
F.3d 330, 346 (4th Cir. 1996) (quoting 28 U.S.C. § 1491). “Jurisdiction is exclusive in the Court
of Federal Claims for claims over $10,000, while district courts have concurrent jurisdiction with
the Court of Federal Claims for claims at or under $10,000.” Coleman v. Kendall , 74 F.4th 610,
615 (4th Cir. 2023), cert denied , 144 S. Ct. 818 (2024) (citing Randall , 95 F.3d at 347).
The APA also offers a waiver of sovereign immunity and entitles “a person suffering legal wrong because of any agency action” to seek “judicial review thereof.” 5 U.S.C. § 702. Section
702 of the APA specifies that sovereign immunity is not available as a defense when the party
seeks “relief other than money damages” against the United States or its agencies. 5 U.S.C. § 702;
Bowen v. Massachusetts , 487 U.S. 879, 891-92 (1988) (stating that Congress amended § 702 in
1976 to “broaden the avenues for judicial review of agency action be eliminating the defense of
sovereign immunity” in suits “seeking relief other than money damages.”). Section 704 of the APA
specifies that judicial review of agency action may be had when “there is no other adequate remedy
in a court.” 5 U.S.C. § 704. Therefore, courts interpreting sections 702 and 704, have held that for
the APA’s waiver of sovereign immunity to apply, a claim must (1) request “relief other than
money damages” and (2) show no “adequate remedy” is available elsewhere, such as in the Court
of Federal Claims under the Tucker Act. See Doe v. United States , 372 F.3d 1308, 1312 (Fed. Cir.
2004).
“The interplay between the Tucker Act and the APA is somewhat complicated and raises some significant issues of federal court jurisdiction.” Randall , 95 F.3d at 346. As discussed, “[t]he
APA allows private parties to sue the federal government in district court over final agency actions,
so long as they seek relief other than monetary damages ‘for which there is no other adequate
remedy in a court.’” Coleman , 74 F.4th at 615 (quoting Randall , 95 F.3d at 346). And “[c]laims
for money, by contrast, proceed under the Tucker Act and in the Court of Federal Claims.”
Williams v. Roth , No. 8:21-CV-02135-PX, 2022 WL 4134316, at *5 (D. Md. Sept. 12, 2022)
(citing 28 U.S.C. §§ 1346(a)(2), 1491). To that end, “where ‘a plaintiff has an adequate remedy by
suit under the Tucker Act,’ they are precluded from review under the APA.” Coleman , 74 F.4th at
615 (quoting Randall , 95 F.3d at 346); see also Maine Cmty. Health Options v. United States , 590
U.S. 296, 324 (2020) (noting the flip side of the same coin: “[t]he Tucker Act yields when the . . .
Administrative Procedure Act. . . provides an avenue for relief”).
There is a “distinction between an action at law for damages—which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation—
and an equitable action for specific relief . . . .” Bowen , 487 U.S. at 893. A claim for specific relief
through declaratory judgment or injunction that requires the federal government to pay money to
plaintiffs does not automatically transform the action into one for money damages. Id. (“The fact
that a judicial remedy may require one party to pay money to another is not a sufficient reason to
characterize the relief as ‘money damages.’”); Harrison v. Kendall , 670 F.Supp.3d 280, 297 (E.D.
Va. 2023) (“[a] suit which does not seek monetary damages does not arise under the Tucker Act
simply because the plaintiff’s success will result in eventual monetary gain from the
government.”). Instead, “[t]o determine whether a plaintiff seeks primarily injunctive relief such
that a district court has jurisdiction over his claim, courts must look to the ‘essence’ of the
complaint and whether the relief requested is ‘not . . . an incident of, or collateral to, a monetary
award.’” Coleman , 74 F.4th at 615-16 (quoting Randall , 95 F.3d at 346).
“The classification of a particular action as one which is or is not ‘at its essence’ a contract action depends both on the source of the rights upon which the plaintiff bases its claims, and upon
the type of relief sought (or appropriate).” Megapulse, Inc. v. Lewis , 672 F.2d 959, 968 (D.C. Cir.
1982).
The Court discusses the elements of the Megapulse framework in turn below. 1. Source of Rights
Defendants argue that Plaintiffs’ source of rights stem from their grant agreements with the government. (Dkt. No. 56 at 10-11). Defendants point to language in Plaintiffs’ motion for
preliminary injunction and their amended complaint where Plaintiffs assert that they have entered
into binding agreements with the government; that the government has provided funding up to a
specified dollar amount, over a specified time period, for specified work; and that the government
has not abided by the grant agreements and regulations. ( Id. ) Defendants further argue that
Plaintiffs characterized the remedy they are seeking as simply requiring the government to honor
commitments it has already made to Plaintiffs in binding grant agreements. ( at 11).
Plaintiffs argue that their claims are not based on contract, but instead are rooted in the Constitution and the grant programs’ respective authorizing statutes. (Dkt. No. 64 at 5). In their
amended complaint, Plaintiffs explicitly ask the Court to interpret and enforce federal law, not the
individual grants. (Dkt. No. 23 at 77-88). In counts I and II of the amended complaint, Plaintiffs
contend that Defendants freezing actions violate separation of powers and were done ultra vires .
( Id. at 77-81). Specifically, Plaintiffs allege that Defendants did not have any statutory, regulatory,
or constitutional authority to indefinitely freeze congressionally appropriated funds and that the
Defendants’ actions usurped Congress’ constitutionally authorized spending and legislative
powers. ( Id. ) In count III, Plaintiffs allege that Defendants actions were arbitrary and capricious
and violate the APA because Defendants froze all IRA and IIJA funding relying on factors which
Congress did not intend them to consider. ( Id. at 81-83). In count IV, Plaintiffs allege that
Defendants violated the APA because Defendants actions are contrary to the IRA and IIJA and are
not in accordance with the statutory requirements to create, fund, and carry out the grant programs.
( Id. at 83-85). In count V, Plaintiffs allege that Defendants freezing actions violate the First
Amendment of the Constitution because Defendants targeted federal funding recipients based on
their viewpoint. ( Id. at 85-87). And in count VI, Plaintiffs allege that Defendants actions violate
the IRA and IIJA because Defendants are statutorily required to carry out the congressionally
mandated to obligate and distribute the funds that Congress appropriated for the grant programs.
Additionally, Plaintiffs prayer for relief requests, among other things, declaratory judgments that Defendants actions violated the Constitution, statutory provisions enacting and
appropriating funds to Plaintiffs grant programs, and the APA; an injunction prohibiting
Defendants from otherwise impeding, blocking, cancelling, or terminating Plaintiffs’ access to
their grant funds; and an order setting aside Defendants actions to freeze or terminate the grants.
( at 89-91).
Based on the Court’s review of the Complaint, the Court finds that Plaintiffs’ claims do not turn on the terms of a contract between the parties. None of Plaintiffs’ claims are based on
Defendants failure to perform obligations in the grant awards. Plaintiffs are not seeking judicial
review of the grant agreements between the parties. Instead, they have asked the Court to review
and interpret federal laws. That Plaintiffs’ action implicates agreements for federal funds does not
transform the action into one for money damages. The source of the rights alleged in this action is
federal law—namely the IRA, IIJA, and the Constitution—not any obligations outlined in the grant
awards.
2. Type of Relief Sought
Defendants argue that Plaintiffs seek monetary relief because their claims are tied to Plaintiffs accessing federal funds. (Dkt. No. 56 at 11). Defendants further argue that the Court of
Federal Claims could provide the Plaintiffs complete relief because Plaintiffs are requesting the
monetary amounts awarded by the grants, which, in Defendants’ view, are specific sums already
calculated and past due.
It is now axiomatic that there is a “distinction between an action at law for damages,” which provides monetary compensation, and “an equitable action for specific relief,” which might
nonetheless require monetary relief. Bowen , 487 U.S. at 893; see Great-West Life & Annuity Ins.
Co. v. Knudson , 534 U.S. 204, 213 (2002) (“[W]hether [restitution] is legal or equitable depends
on ‘the basis for [the plaintiff's] claim’ and the nature of the underlying remedies sought.” (quoting
Reich v. Continental Casualty Co. , 33 F.3d 754, 756 (7th Cir. 1994) (Posner, J.))). Simply because
“a judicial remedy may require one party to pay money to another” does not necessarily
“characterize the relief as ‘money damages.’” Bowen , 487 U.S. at 893. A hallmark of such
equitable actions is the existence of prospective relief in ongoing relationships. Compare Bowen ,
487 U.S. at 905 (holding the district court had jurisdiction because declaratory or injunctive relief
was appropriate to clarify petitioner state's ongoing obligations under the Medicaid plan), with Me.
Cmty. Health Options v. United States , 590 U.S. 296, 298 (2020) (holding that petitioners properly
relied on the Tucker Act to sue for damages in the Court of Federal Claims because plaintiffs were
strictly concerned with “specific sums already calculated, past due, and designed to compensate
for completed labors”).
The Court finds Bowen especially instructive here. “The principal question presented [in Bowen ] is whether a federal district court has jurisdiction to review a final order of the Secretary
of Health and Human Services refusing to reimburse a State for a category of expenditures under
its Medicaid program.” Bowen , 487 U.S. at 882. The Supreme Court held the district court had
subject matter jurisdiction over the suit. Id. at 912. The plaintiff, Massachusetts, sought prospective
relief which was “important to the Commonwealth both because the . . . program [at issue was]
still active and because the legal issues involved [had] ramifications that affect[ed] other aspects
of the Medicaid program. What [was] at stake . . . [was] the scope of the Medicaid program, not
just how many dollars Massachusetts should have received in any particular year.” Id. at 889–90.
Thus, the Supreme Court held the Court of Federal Claims was unable to provide an adequate
remedy. at 904.
Plaintiffs primary purpose in brining their claims is to seek equitable, not monetary, relief.
They do not bring claims for past pecuniary harms. Rather, like the plaintiffs in Bowen , Plaintiffs
claims are to preserve their ongoing and prospective agreements with the Government. Plaintiffs
have an ongoing relationship with the government and seek declaratory and injunctive relief to
confirm the Government’s future obligations towards Plaintiffs under the IRA and IIJA. Plaintiffs’
claims are about the process in which their grants were frozen, not the monetary awards in the
grants themselves.
Additionally, the harms that Plaintiffs allege can only be remedied by specific, not monetary, relief. Plaintiffs state that the blanket IIJA and IRA funding freezes will result in lost
jobs, suspension of research and community initiatives, loss of goodwill, and harm to the Plaintiffs’
reputation. Money damages will not resolve those alleged harms.
Specifically, loss of goodwill and harm to Plaintiffs’ reputation cannot be remedied by monetary damages. Some of the Plaintiffs here have devoted resources to build trust and
relationships in the communities in which they serve, and those Plaintiffs now fear that the trust
and relationships they built may be broken. For example, Plaintiff Pennsylvania Association for
Sustainable Agriculture (“Pasa”) is a non-profit organization that supports farmers’ goals of
creating economically viable, environmental sound, and community-focused farms and food
systems. Pasa is largely funded by federal grants. It’s largest grant award, $50 million from the
Untied States Department of Agriculture Natural Resources and Conservation Service Partnership
for Climate-Smart Commodities program, was frozen and is subject in this lawsuit. When applying
for that award, Pasa built trust and relationships with farmers in their communities, the people Pasa
endeavored to serve with the grant funds. Pasa now fears that the continued freezing of funds may
force them to abandon the very farmers who entrusted them with their time and their land. Those
relationships are also tested by the uncertainty surrounding federal funds caused by the funding
freeze. Pasa states that, if the trust between Pasa and the farming community is broken, it is
impossible to estimate how long it may take to repair those relationships. (Dkt. No. 24-13).
Even if the total grant funds could be restored by a damages award in the Court of Federal Claims, such a damage award would not alleviate the reputational harms Plaintiffs would likely
suffer. The farmers, for example, may be hesitant to work with Pasa in the future in fear that an
agency’s funding decision may change overnight and disrupt critical operations, such as seasonal
planting and harvesting. Under these circumstances, declaratory relief establishing that blanket
freezes of grants done without individualized process and without legal authority are improper is
critical to provide to provide Plaintiffs effective relief. Such relief, if granted, would provide
Pasa’s clients with the assurance that any federal funds that they plan to rely on will only be frozen
or cancelled through actual authority provided by federal laws and after the funding agency follows
the lawful process. This example emphasizes that Plaintiffs’ claims are about process, not
damages, and are available only through the equitable powers of the district court under the APA.
Since the Court finds that the proper source of Plaintiffs’ rights is federal law and because the relief sought is declaratory and injunctive in nature, the Court finds that the “essence” of the
Plaintiffs’ claims is not contractual in nature. Plaintiffs’ claims cannot properly be brought under
the Tucker Act in the Court of Federal Claims and fall plainly within the jurisdiction of this Court
under the APA.
3. Department of Education v. California
Defendants contend that the Supreme Court’s recent issuance of an emergency stay order in a three-page decision, issued without benefit of a record or oral argument, definitively disposes
of all jurisdictional issues in this case. The Court finds Defendants’ argument unpersuasive.
In Department of Education v. California , the Supreme Court stayed a district court’s temporary restraining order pending the resolution of the appeal in the underlying case. California ,
2025 WL 1008354, at *2. At the district court, plaintiffs sought preliminary relief enjoining the
Government from terminating grant awards under programs administered by the United States
Department of Education. California v. U.S. Department of Education , No. 25-105488-MJJ, 2025
WL 760825, at *1 (D. Mass. Mar. 10, 2025). The District Court for the District of Massachusetts
granted injunctive relief against the government. at *5. The Government appealed the district
court’s order and requested a stay pending the appeal. California v. U.S. Department of Education ,
No. 25-1244, 2025 WL 878431, at *1 (1st Cir. Mar. 21, 2025). The First Circuit Court of Appeals
denied the Government’s request to stay the district court’s order pending appeal. Id. at *1. The
Government then filed an emergency application to the Supreme Court requesting the Court vacate
the district court’s temporary restraining order and immediately stay the case pending the
disposition of the Government’s appeal. California , 2025 WL 1008354, at *1. The Supreme Court
granted the application and stayed the district court’s order. The Court reasoned that a stay is
appropriate because (1) “the Government is likely to succeed in showing the District Court lacked
jurisdiction to order the payment of money under the APA,” (2) the Government is likely to suffer
irreparable harm, and (3) “respondents would not suffer irreparable harm while the TRO is stayed.”
Id.
In finding that the Government is likely to succeeded in showing the District Court lacked jurisdiction to order payment of money under the APA, the Supreme Court very briefly discussed
the jurisdictional line between the APA and Tucker Act. The Supreme Court noted that the APA’s
waiver of sovereign immunity does not apply to claims seeking money damages, but also
reaffirmed the general rule that “a district court’s jurisdiction ‘is not barred by the possibility’ that
an order setting aside an agency’s action may result in the disbursement of funds.” Id. (quoting
Bowen , 487 U.S. at 910). The Supreme Court further noted that “the APA’s limited waiver of
sovereign immunity does not extend to orders ‘to enforce a contractual obligation to pay money’
along the lines of what the [district court in California ] ordered . . . .” Id. (quoting Great-West Life
& Annuity Ins. Co. v. Knudson , 534 U.S. 204, 212 (2002)). Instead, the Supreme Court stated that
“the Tucker Act grants the Court of Federal Claims jurisdiction over suits based on ‘any express
or implied contract with the United States.’” (quoting 28 U.S.C. § 1491(a)(1)).
The California ruling is not dispositive of the jurisdictional questions in this case for three reasons.
First, the California ruling was made in the context of an emergency application for a stay pending appeal. In that procedural posture, the Supreme Court relied on limited briefing and did
not have the benefit of oral argument or a factual record. Additionally, the Supreme Court applied
a likelihood of success standard to the Government’s application for a stay, stopping well short of
addressing the complex jurisdictional issues on the merits. Without a factual record, meaningfully
addressing the jurisdictional issues under Bowen would not have been possible. Under these
circumstances, the Supreme Court’s brief treatment of Bowen and Great-West Life in California
and the cursory mention of potential jurisdictional issues do not appear to definitively address the
jurisdictional issues in this case. The Court therefore finds that, Bowen , not the emergency stay
order in California , is the guiding compass in deciding whether the Court has jurisdiction under
the APA or the Court of Claims has jurisdiction under the Tucker Act.
Second, the terms and conditions of the individual grants are not at issue here. In California , the First Circuit Court of Appeals determined that “the terms and conditions of each
individual grant award” were “at issue.” California v. U.S. Dep't of Educ. , 132 F.4th 92, 96-97 (1st
Cir. 2025). On appeal, the Supreme Court then granted the Department's application for a stay
because it concluded that the district court issued an order “to enforce a contractual obligation to
pay money” and “the Government is likely to succeed in showing the District Court lacked
jurisdiction to order the payment of money under the APA.” California , 2025 WL 1008354, at *1.
In this case, the terms and conditions of each individual grant are not at issue. Rather, this case
deals with Defendants’ implementation of a broad, categorical freeze on obligated funds pending
determinations on whether it is lawful to summarily freeze or terminate disbursements of such
funds. Plaintiffs here allege that the categorical funding freeze was not based on individualized
assessment of any particular grant terms and conditions or agreements between the Parties but,
instead, was based on the grants being funded by the IRA and IIJA.
Third, there are still other factors the Supreme Court considered in ruling in California which are not relevant or present here. The issuance of a stay is dependent upon the circumstances
of the particular case, and the Supreme Court’s finding that the District Court likely lacks
jurisdiction is just one of the factors it considered. The Supreme Court also considered potential
harm to the parties and public interest when issuing the stay. The combination of those factors
guided the Supreme Court in making its judgment. Those factors are not relevant to the Court’s
determination here. And even if they were relevant, they are not present in this case. For example,
unlike in California there is no indication in this case that the Plaintiffs could not or would not pay
the money back if so ordered. Additionally, Plaintiffs have provided considerable evidence of
irreparable harm should they not regain access to their grant funding. This is different from
California where the Supreme Court specifically found that the State government could fund the
affected programs during the pendency of the litigation, effectively eliminating a major portion of
the California plaintiffs’ irreparable harm claim. California , 2025 WL 1008354, at *1.
In sum, considering the full record before the Court, the clear statutory authority for APA jurisdiction where a party is seeking relief from agency action other than money damages, and the
well-established standards set forth in Bowen , the Court finds that it has jurisdiction over this
matter under the APA.
B. Agency Discretion
Defendants argue that their actions to freeze the grant funds were committed to agency discretion by law and fall outside the scope of permissible judicial review under the APA. (Dkt.
No. 56 at 14-16).
As discussed above, APA provides “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “That language sets up a ‘basic
presumption of judicial review’ of agency action.” Holbrook v. Tennessee Valley Auth. , 48 F.4th
282, 287 (4th Cir. 2022) (quoting Abbott Lab'ys v. Gardner , 387 U.S. 136, 140 (1967)). The text
carves out two exceptions to that “basic principle.” Id. First, where “statutes preclude judicial
review” per § 701(a)(1); and second, where “agency action is committed to agency discretion by
law” per § 701(a)(2). Holbrook, 48 F.4th at 287. With regard to the second, “[a]gency action is
committed to the agency's discretion when no judicially manageable standards are available to
assess how and when an agency should exercise its discretion such that a court would have ‘no
law to apply.’” Pharm. Coal. for Patient Access v. United States , 126 F.4th 947, 964 (4th Cir.
2025) (quoting Heckler v. Chaney , 470 U.S. 821, 830–31 (1985)). Of import here, the APA's
prohibition of judicial review of actions committed to agency discretion by law, and a defect
related thereto, “goes to subject matter jurisdiction.” (citing Angelex Ltd. v. United States , 723
F.3d 500, 505–506 (4th Cir. 2013)).
Defendants primarily rely on the Supreme Court’s opinion in Lincoln v. Vigil to support its argument on agency discretion. 508 U.S. 182 (1992). In Lincoln , the Court found an agency's
particular use of funds from a “lump sum” grant was committed to its discretion because “the very
point of a lump-sum appropriation is to give an agency the capacity to adapt to changing
circumstances and meet its statutory responsibilities in what it sees as the most effective or
desirable way.” Lincoln , 508 U.S. at 192. That is, “a lump-sum appropriation reflects a
congressional recognition that an agency must be allowed flexibility to shift funds within a
particular appropriation account so that the agency can make necessary adjustments for unforeseen
developments and changing requirements.” at 193 (internal citation omitted).
Here, there is no indication that Congress intended to commit funding under the IRA and IIJA to the agencies’ discretion. Defendants have not pointed to any evidence showing that this
was Congress’ intention. And this case does not involve an agency’s allocation of funds under a
lump-sum grant by Congress (which by its nature implies delegation of wide discretion to the
agency). Because Defendants have not shown that the funds at issue here were committed to
agency discretion, the Court declines to apply the 5 U.S.C. § 701(a)(2) exception to the APA’s
waiver of sovereign immunity here.
II. Supplementation of the Record and the Process Going Forward
When this case was initially filed on March 19, 2025, Plaintiffs alleged that their grants, totaling 38, had been frozen [1] because the funds for those grants had been appropriated under two
Acts of Congress now disfavored by the present Administration: the Inflation Reduction Act (IRA)
and the Infrastructure Investment and Jobs Act. (IIJA). (Dkt. No. 1 at 2). At oral argument before
the Court on April 23, 2025, Defendants’ counsel was unable to provide the Court any estimate of
the number of grants which had been summarily frozen since January 20, 2025, but he
acknowledged that grants had been frozen on a mass, not individualized, basis. [2]
In response to a recent Order directing Defendants to provide a status report on the 38 grants at issue in this litigation, Defendants submitted a chart which indicated that the funding of
13 grants had been restored, four of the grants had been terminated, and 12 of the grants had
terminations being processed. (Exhibit A). It appears to the Court that the Defendants’ chart
reflects a pivot away from the summary freezing of grants in mass. Defendants appear now to be
turning their focus to a narrower set of grants allegedly sought to be terminated because they are
allegedly not consistent with “agency policy.” At the hearing of April 23, 2025, Defendants’
counsel could not provide the Court any additional justification for the termination or proposed
termination of any of the grants in this litigation. Questions also arose at the recent hearing
regarding the status of certain grants.
In an effort to obtain greater specification of the reasons for the proposed termination of certain grants and a better understanding of the present status of several other grants, the Court
orders Defendants to provide the following within seven days of this Order:
1. All documents prepared, received, possessed or transmitted from January 20, 2025 to the present relating to the termination of the grants set forth in Exhibit A at Nos. 9, 10, 11, and 12 and the proposed termination of grants set forth at Nos. 2, 3, 4, 5, 6, 7, 27, 28, 29, 30, 31, and 32.
2. All documents prepared, received, possessed or transmitted from January 20, 2025 to the present relating to the freezing of funds set forth in Exhibit A at Nos. 16, 22, and 23.
3. All documents prepared, received, possessed or transmitted from January 20, 2025 to the present relating to the decision to finalize or not to finalize the grant awards set forth in Exhibit A at Nos. 37 and 38.
4. All documents prepared, received, possessed or transmitted from January 20, 2025 to the present relating to the status of the grant set forth at Exhibit A at No. 15. Exhibit A lists No. 15 as “accessible to grantee” but Plaintiffs indicate this grantee has been unable to access the funds. To the extent the grant remains frozen or slated for possible termination, produce all relevant documents.
5. All documents prepared, received, possessed or transmitted from January 20, 2025 to the present relating to the status of the grant set forth at Exhibit A at No. 8. Exhibit A lists this grant as “closed,” and Plaintiffs assert that to their knowledge the grant is frozen. To the extent the grant remains frozen or is slated for possible termination, produce all relevant documents.
6. All documents prepared, received, possessed or transmitted from January 20, 2025 to the present in which Defendants were instructed and/or advised that all grants authorized by the IRA or the IIJA were to be frozen.
7. The Court previously gave Defendants until April 21, 2025 to supplement their privilege logs regarding the deliberative process privilege. (Dkt. No. 77). Per Defendants’ request, the Court extends the time to supplement the privilege logs until 7 days following the issuance of this order and only the privilege logs of Defendants EPA and USDA need to be addressed.
In the event that any Defendant asserts any privilege in regard to any of the documents required to be produced in Paragraphs 1-7 above, such documents must be identified in an
appropriately documented privilege log and must be submitted to the Court under seal and ex parte
for in camera review within seven days of this Order.
Additionally, to avoid the confusion created by Defendants producing thousands of documents in response to this Court’s earlier order without identifying which particular discovery
request Defendants were responding to, the Court orders and directs that Defendants respond to
each discovery request above separately and clearly identify which documents are responsive to
each discovery request. This directive applies both to responses to discovery requests in which no
privilege is asserted as well as all documents produced ex parte and in camera based on an
assertion of privilege.
Once Defendants comply with their discovery obligations to the Court above, Plaintiffs may file a response to the submitted documents and address any other issues related to the
production of documents and/or their pending motion for a preliminary injunction with seven days
after receipt of the Plaintiffs’ responses required in Paragraphs 1-7 above.
Finally, in regard to the grants which Defendants have identified as now unfrozen in Exhibit A at Nos. 13, 14, 15, 16, 17, 18, 20, 21, 24, 25, 26, 34, 35 and 36, Defendants are ordered
and directed not to subsequently freeze or terminate these grants without notice to the Court and
authorization from the Court that the freezing and/or terminating of the grants may proceed.
_s/ Richard Mark Gergel___ Richard Mark Gergel United States District Judge April 29, 2025
Charleston, South Carolina
[1] As used in this Order, the terms “frozen” or “freeze” have the same meaning as a “pause” in funding or any other action that disrupted the normal flow of grant funds to the grantees.
[2] This was corroborated by the fact that in the thousands of pages of records produced by Defendants relating to the freezing of grants at issue in this litigation, the Court could not locate a single document (other than four termination letters) which referenced any individual grantee.