This study on the “presumption of regularity” was initially published on Sept. 15, 2025, first updated on Oct. 15, and most recently updated on Nov. 20. See notations at the very end for recent changes. This study was featured on 60 Minutes.
Table of Contents
Chapter 1. Court Concerns of Noncompliance with Judicial Orders
2-a. Post-Supreme Court reporting orders met with non-answers and failures to comply
4. “Clearly hasn’t complied” with court order, culminating in a looming contempt finding
5. “No choice but to find that they were in violation;” “flagrant violation.”
9. Agencies “actions violate the Preliminary Injunction.”
10. Government action “violated this Court’s order staying Petitioner’s removal”
18. HHS termination letters to employees that “do not comply” with the preliminary injunction.
21. “[P]rofoundly concerned” order on use of force in Chicago protests not being followed
25. USDA’s Nov. 8 SNAP payment letter was “carefully crafted to feign compliance with” TRO
Chapter 2. Court Distrust of Government Information and Representations
2. Placing attorney on leave for his compliance with “the duty of candor to the court”
8-a. Solicitor General providing inaccurate information to the U.S. Supreme Court
12. Providing false and incomplete information concerning DOGE’s leadership and authorities
15. Mischaracterizing the content of sealed grand jury documents in court filings
17. Providing an “explanation [that] is riddled with inconsistencies”
19. Unrebutted claim that the government created a record as a “contrivance” to avert court ruling
20. Offering an “official justification … [that] is not plausible”
21. Admission of making a false statement to the court
22. ICE mask testimony deemed “disingenuous”
32. ICE Deputy Field Director declaration “contradicted pretty thoroughly” by migrants
33. DOT’s “nakedly misleading characterization” of immigration-enforcement grant conditions
B. Pretext and Retaliatory Motives
38. Providing pretext for motion to dismiss indictment
41. Executive Order targeting Jenner & Block LLP found unconstitutional
42. Executive Order targeting WilmerHale found unconstitutional
44. Executive Order targeting Susman Godfrey LLP found unconstitutional
46. Executive Order targeting Perkins Coie LLP found unconstitutional
51. Funding freeze targeting Harvard ruled retaliatory and pretextual
52. Prosecution of Kilmar Abrego Garcia found “presumptively vindictive”
53. “Preordained” and “pretextual;” Venezuela TPS vacatur with “entirely baseless” rationale
54. Transgender military ban “littered” and “dripping” with pretext and “bear no relation to fact”
55. DHS offered pretextual reasons for TPS termination for Nepal, Honduras, and Nicaragua
58. OMB’s actions during the government shutdown found “retaliatory and partisan”
Chapter 3. Court Findings of “Arbitrary and Capricious” Administrative Action
4. Judge Jeannette A. Vargas (Biden appointee), State of New York v. Trump, 1:25-cv-01144 (S.D.N.Y.)
6. Judge Jamal N. Whitehead (Biden appointee), Pacito v. Trump, 2:25-cv-00255 (W.D. Wash.)
11. Judge Edward M. Chen (Obama appointee), National TPS Alliance v. Noem, 3:25-cv-01766 (N.D. Cal.)
19. Judge Victoria Calvert (Biden appointee), Jane Doe 1 v. Bondi, 1:25-cv-01998 (N.D. Ga.)
28. Judge Royce C. Lamberth (Reagan appointee), Kingdom v. Trump, 1:25-cv-00691 (D.D.C.)
38. Judge Melissa R. Dubose (Biden appointee), State of New York v. Kennedy, 1:25-cv-00196 (D.R.I.)
40. Judge Royce C. Lamberth (Reagan appointee), RFE/RL, Inc. v. Lake, 1:25-cv-00799 (D.D.C.)
43. Judge Trina L. Thompson, National TPS Alliance v. Noem, 3:25-cv-05687 (N.D. Cal.)
51. Judge Rita F. Lin (Biden appointee), Thakur v. Trump, 3:25-cv-04737 (N.D. Cal.)
63. Judge Lewis A. Kaplan (Clinton appointee), State of New York v. Noem, 1:25-cv-08106 (S.D.N.Y.)
64. Judge James E. Simmons, Jr. (Biden appointee), Rios v. Noem, 3:25-cv-02866 (S.D. Cal.)
67. Judge Eric Komitee (Trump appointee), A.C.R. v. Noem, 1:25-cv-03962 (E.D.N.Y)
68. Judge Katherine Polk Failla (Obama appointee), Doe v. Noem, 1:25-cv-08686 (S.D.N.Y)
Introduction
The “presumption of regularity” is a judicially created doctrine with a long and contested history. The doctrine affords the executive branch a distinctive advantage not enjoyed by private litigants.[1] It generally instructs courts to presume, unless there is clear evidence to the contrary, that executive officials have “properly discharged their official duties” and that government agencies have acted with procedural regularity and with bona fide, non-pretextual reasons. In practice, the presumption can preclude discovery, limit review of the facts, and truncate cases. It can constrict (or even end) civil suits challenging government action and curb criminal defendants’ ability to claim vindictive or selective prosecution, and more.
Over the decades, the scope and weight of the presumption has fluctuated. In the face of extraordinary executive misconduct or malfeasance, courts may choose (explicitly or implicitly) to narrow its scope, reduce its weight, or even potentially deem the presumption more generally forfeited, as the Trump administration is beginning to learn. Indeed, Judge Paul L. Friedman cautioned in an August 2025 opinion:
“Generations of presidential administrations and public officials have validated this underlying premise of the presumption of regularity: their actions writ large have raised little question that they act ‘in obedience to [their] duty.’ Over the last six months, however, courts have seen instance after instance of departures from this tradition. … In just six months, the President of the United States may have forfeited the right to such a presumption of regularity.” (emphasis added).
The Supreme Court itself showed the limits of the presumption during the first Trump administration upon learning that the Commerce Department had “contrived” a false rationale for reinstating the citizenship question in the national census. In Department of Commerce v. New York, Chief Justice John Roberts wrote, “[W]e cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are ‘not required to exhibit a naiveté from which ordinary citizens are free.’” That move was to the chagrin of Justice Clarence Thomas, who argued that the majority had given “lipservice” to the principle that “courts reviewing agency action owe the Executive a ‘presumption of regularity.’” We document three categories of executive branch conduct since Jan. 20, 2025 that, in Judge Friedman’s words, showed to courts “instance after instance of departures from this tradition” of public officials acting “in obedience to [their] duty.” The three categories are:
1. Courts’ concerns over noncompliance with judicial orders (26 cases)
2. Courts’ distrust of government information and representations (over 60 cases)
3. Courts’ findings of “arbitrary and capricious” administrative action (68 cases)
On this record, we believe more federal judges will rightfully conclude that the administration has forfeited the full protections of the presumption.
Indeed, Judge Friedman is not alone in his observations. Denying a government bid to indefinitely seal a judicial order, Magistrate Judge Zia M. Faruqui recently responded to the government’s request for deference in sharp terms. Recounting a list of concerns across different cases in the federal courts and aberrant behavior by the Justice Department, the judge wrote: “Blind deference to the government? That is no longer a thing. Trust that had been earned over generations has been lost in weeks. … These norms being broken must have consequences. High deference is out; trust, but verify is in” (emphasis added). Other judges have raised similar concerns about the viability of the presumption in the cases before them. At a July hearing in the Abrego Garcia case, Judge Paula Xinis told government counsel, “You have taken the presumption of regularity and you’ve destroyed it in my view.” In litigation over the administration’s efforts to dismantle the Consumer Financial Protection Bureau, Judge Amy Berman Jackson wrote, “the Court is left with little confidence that the defense can be trusted to tell the truth about anything.” Concerning an executive order against a law firm, Judge Beryl A. Howell wrote that the government’s noncompliance with a temporary restraining order “raised some concern about the general presumption by courts ‘that executive officials will act in good faith.’” And when reviewing the rescission of government funds to small businesses and nonprofits, Judge Loren L. AliKhan wrote, “Defendants’ plea for a presumption of good faith rings hollow when their own actions contradict their representations.”
Before turning to the three categories of executive conduct, we should mention three methodological notes about our research:
1. Our account includes only government conduct that has come to the courts’ direct attention. We do not include internal executive branch actions that may also suggest the administration has undercut the premise for applying the presumption. We considered including those as well, but we focus here instead on what the courts themselves have found. Nor did we want to reinvent the wheel: a separate Tracker comprehensively documents internal administrative changes that have undermined the executive branch’s capacity to identify and address official misconduct and systemic irregularities.
2. The three categories above do not capture all of the judiciary’s expressed concerns about the administration’s conduct; the record is even more overwhelming than the cases cataloged below. For example, we exclude judges’ concerns about Department of Justice conduct involving prosecutorial decisions that do not fit our three categories. In a September hearing, for instance, Judge Faruqui—a former federal prosecutor—criticized the government’s motion to dismiss charges against a defendant after a grand jury’s refusal to indict. In an accompanying order, the court questioned whether the U.S. Attorney’s Office for D.C. was still following the DOJ Manual on when to initiate a prosecution, “[g]iven that there have been an unprecedented number of cases that the U.S. Attorney dismissed in the past ten days.” The court added, “It’s not fair to say they’re losing credibility. We’re past that now. … There’s no credibility left.”
3. We take no position on the presumption’s proper scope in ordinary circumstances. The documented cases below are not intended to indicate when we think courts should apply the presumption. Well before the Trump administration, the metes and bounds of the presumption were unsettled, and its pedigree was ripe for being questioned. Some scholars trace the presumption back to the 1926 Supreme Court decision of United States v. Chemical Foundation, where the Justices presumed that a State Department official acted with knowledge of material facts when selling patents seized under the Trading with the Enemy Act. Paradoxically, the application of the presumption in that case worked against the Coolidge administration, which had sought to invalidate the sale as “induced by misrepresentation.” What’s more, the Court did not explain why it was appropriate to presume the regularity of a process the government itself said was irregular.
Other scholars and courts trace the presumption further back to Martin v. Mott. In that 1827 case, the Supreme Court accorded deference to the president’s determination that an “invasion” existed in calling the New York militia into federal service during the War of 1812. If the presumption belongs to that lineage of judicial deference, our study has broader implications. However, we have reason to doubt the two forms of deference – the one in Mott and the one in Chemical Foundation – are doctrinally equivalent.
In other words, we do not attempt to resolve how far back to trace the doctrine’s origins, the doctrine’s appropriate scope, or whether it has seeped into judicial decisions in underexamined or unwarranted ways. Such an analysis would need to contend, among other things, with the logical foundations of the doctrine and to which types of government actions those foundations are applicable as well as whether a president should enjoy a presumption that his or her subordinates do not.
* * *
In sum, the presumption of regularity “credits to the executive branch certain facts about what happened and why and, in doing so, narrows judicial scrutiny and widens executive discretion over decisionmaking processes and outcomes,” as an influential Harvard Law Review Note explained. But the maintenance of the presumption rests on certain foundations, and those foundations have been eroded by the Trump administration, especially the Justice Department, in the following three ways.
Chapter 1. Court Concerns of Noncompliance with Judicial Orders
Introduction
According to a foundational Supreme Court judgment, the presumption of regularity assumes that executive officials have “properly discharged their official duties.” In a landmark D.C. Circuit decision this meant, “We [the Court] cannot allow a breach of the presumption of regularity by an unwarranted assumption that the President was indifferent to the purposes and requirements of the [statute], or acted deliberately in contravention of them” (emphasis added). Insofar as the presumption rests on such considerations – i.e., that the Executive is “following the rules” – then the cardinal duty of complying with court orders is a potential test case.
The executive branch’s flagrant noncompliance with court orders may, and indeed has already, undermined judicial support for the presumption. In this Chapter, we document 26 cases in which courts have found the Executive in noncompliance with judicial orders—ranging from willful disobedience and rebranding of enjoined conduct to flagrantly slow-walking compliance, missing or ignoring court-imposed deadlines, and refusing to provide court-ordered information—often prompting show-cause orders and contempt warnings.
1. “Bad faith” conduct and “gleeful” boasts culminate in “willful” disobedience and probable cause for criminal contempt
Chief Judge James E. Boasberg (W. Bush appointee; Obama appointee), J.G.G. v. Trump, 1:25-cv-00766 (D.D.C.)
This class action challenged the Trump administration’s mid-March removals of Venezuelan detainees to El Salvador under the claimed authority of the Alien Enemies Act.
Following his Mar. 15 temporary restraining orders barring transfers to El Salvador and requiring the return of flights that had not deboarded in El Salvador, at an Apr. 3 show-cause hearing, Judge Boasberg said there was “a fair likelihood … the government acted in bad faith throughout that day,” questioning how officials could have “ever … operated in the way [they] did” if they believed their conduct lawful.
In his Apr. 16 memorandum opinion, Judge Boasberg formally found probable cause of criminal contempt, holding that the administration “willfully disobeyed a binding judicial decree.” He described a pattern of “increasing obstructionism” and an effort to “outrun the equitable reach of the Judiciary” by launching removal flights even during a hearing. He wrote that officials had “deliberately flouted this Court’s written Order and, separately, its oral command,” conduct amounting to “deliberate or reckless disregard” and a “willful disregard” of binding orders. The opinion also pointed to “boasts” by government officials outside the courtroom, such as Secretary of State Marco Rubio’s repost of El Salvador President Bukele’s mocking post, “Oopsie… Too late 😂,” as evidence that defiance was “deliberate[ ] and gleeful[ ].” Emphasizing that the government had “ample opportunity to rectify or explain” but instead “chose to press ahead,” the court concluded there was probable cause for criminal contempt.
Update 1 (Nov. 20, 2025):
After an Aug. 8 divided D.C. Circuit panel granted the government’s mandamus petition and vacated Judge Boasberg’s Apr. 16 contempt order, the full D.C. Circuit on Nov. 14 denied rehearing en banc. Several judges, however, wrote separately criticizing the panel’s grant of mandamus and stressing that the ruling carries no precedential effect. In total, six of the court’s eleven judges (three dissenting and three writing separately while concurring in the result) suggested that they believe the panel majority erred, while also emphasizing that nothing in the panel’s order prevents Judge Boasberg from renewing his efforts to identify the responsible officials and determining whether to pursue criminal contempt. (See further commentary on the rehearing denial and its implications here.)
On Nov. 17, Judge Boasberg ordered the parties to be prepared “to discuss next steps in this Court’s contempt inquiry” at a Nov. 19 hearing already scheduled on the plaintiffs’ motions for a preliminary injunction and class-certification. During the Nov. 19 hearing, Judge Boasberg reportedly said he will move “promptly” with his contempt inquiry and that he intends to hear from witnesses under oath including whistleblower and former DOJ attorney Erez Reuveni, as well as from Deputy Assistant Attorney General Drew Ensign—who represented DOJ at the Mar. 15 TRO hearing—during proceedings that could begin as early as Dec. 1. The court stated, “Justice requires me to move promptly on this.”
2-a. Post-Supreme Court reporting orders met with non-answers and failures to comply
Judge Paula Xinis (Obama appointee), Abrego Garcia v. Noem, 8:25-cv-00951 (D. Md.)
This case involves the government’s admission that the administration unlawfully sent Kilmar Armando Abrego Garcia to El Salvador despite an immigration court order prohibiting removal to that country.
On Apr. 10, the Supreme Court affirmed Judge Xinis’ preliminary injunction to “‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” The Justices also wrote that the government “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
That same day, Judge Xinis first ordered the government to report by 9:30 a.m. on Apr. 11 what steps it was taking to secure Garcia’s return. DOJ responded that the deadline was “impracticable” and sought until Apr. 15. Rejecting that position, Xinis wrote that the claim DOJ needed days to review a four-page order “blinks at reality” and reset the deadline to 11:30 a.m. DOJ again refused, stating it was “not in a position where they ‘can’ share any information requested by the Court. That is the reality.” At an Apr. 11 status conference, DOJ counsel admitted he lacked “personal knowledge of steps taken to comply,” could not answer the “very simple question … where is he?,” and offered no description of concrete steps. Judge Xinis replied that this suggested counsel had “no full and effective contact with your client,” which was “just not adding up.” In a written order later that day, Judge Xinis found DOJ had “failed to comply” with her instructions and would not answer “straightforward questions” (emphasis added).
2-b. Expedited discovery ordered “in the face of ongoing refusal to comply,” with possible contempt proceedings reserved pending the record
Judge Paula Xinis (Obama appointee), Abrego Garcia v. Noem, 8:25-cv-00951 (D. Md.)
The case involved the government’s admission that the administration unlawfully sent Kilmar Armando Abrego Garcia to El Salvador despite an immigration court order prohibiting removal to that country.
At the Apr. 15 status conference, Judge Xinis explained she would not initiate contempt proceedings without a fuller record, stating: “I’m not going to issue a show cause today for contempt findings,” but any contempt finding “will be based on the record before me.” She ordered expedited discovery “to determine whether you are abiding by the court order … whether you intend to abide … And if not, is it in bad faith?” She also underscored the lack of concrete action: “I’ve gotten nothing. I’ve gotten no real response, nor have I gotten any legitimate legal justification for not answering,” and “what the record shows is nothing has been done. Nothing.” She added, “I just don’t think it’s that difficult. I think you want to make it that difficult.” That same day, Judge Xinis wrote that “Defendants … have done nothing at all;” she rejected efforts to “skirt this issue by redefining ‘facilitate;’” and found a “uniform refusal to disclose ‘what it can’” along with a “repeated refusal to provide even the most basic information.” She concluded. “Defendants have not yet complied with this Court’s directives” and ordered expedited discovery—depositions of ICE, DHS, and State officials and document production by month’s end.
On the same day, the court ordered expedited discovery. Judge Xinis wrote: [1] “Defendants therefore remain obligated, at a minimum, to take the steps available to them toward aiding, assisting, or making easier Abrego Garcia’s release from custody in El Salvador and resuming his status quo ante. But the record reflects that Defendants have done nothing at all” (emphasis added). [2] “Second, and more fundamentally, Defendants appear to have done nothing to aid in Abrego Garcia’s release from custody and return to the United States to ‘ensure that his case is handled as it would have been’ but for Defendants’ wrongful expulsion of him. Abrego Garcia, 604 U.S.— , slip op. at 2. Thus, Defendants’ attempt to skirt this issue by redefining ‘facilitate’ runs contrary to law and logic” (emphasis added). [3] “[T]he discovery is necessary in light of Defendants’ uniform refusal to disclose ‘what it can’ regarding their facilitation of Abrego Garcia’s release and return to the status quo ante, or present any legal justification for what they cannot disclose” and “in the face of ongoing refusal to comply” (emphasis added).
2-c. “Willful and bad faith refusal” to comply with expedited discovery obligations, with DOJ “counsel stubbornly refus[ing] to provide any basis for” “non-particularized” privilege claims
Judge Paula Xinis (Obama appointee), Abrego Garcia v. Noem, 8:25-cv-00951 (D. Md.)
The case involved the government’s admission that the administration unlawfully sent Kilmar Armando Abrego Garcia to El Salvador despite an immigration court order prohibiting removal to that country.
On Apr. 22, addressing DOJ’s objections to discovery, Judge Xinis wrote that its position “reflects a willful and bad faith refusal to comply with discovery obligations” (emphasis added). She found that “Defendants and counsel stubbornly refuse to provide any basis for” their privilege claims—which she said were being used “as a shield to obstruct discovery and evade compliance with this Court’s orders”—and that they relied on “boilerplate, non-particularized objections” which the court deemed “presumptively invalid” and “reflect a willful refusal to comply.” Their refusal to identify all individuals involved in Garcia’s removal and detention, she added, “reflects a deliberate evasion of their fundamental discovery obligations” and “can only be viewed as willful and intentional noncompliance” (emphasis added).
On May 7, the court ordered the government to file a privilege log by May 12. On May 13, Judge Xinis noted that “evidently missing from Defendants’ filing is a privilege log,” directed the government to cure the “deficiency,” and warned that continued failure “will be construed as an intentional refusal to comply with this Court’s orders.” During the May 16 hearing on discovery motions, Judge Xinis underscored that “this Court has found more than once that you haven’t complied, and you haven’t in bad faith,” adding, “The whole reason we’re here is because I’ve said repeatedly you’ve done nothing, and now you tell the world you’re not going to do anything.” She further remarked that the court-ordered depositions from key officials had yielded a “goose egg.”
2-d. Return from El Salvador achieved, but “no appetite” to restore “status quo ante,” with “defiance and foot-dragging” warranting further relief
Judge Paula Xinis (Obama appointee), Abrego Garcia v. Noem, 8:25-cv-00951 (D. Md.)
This case involves the government’s admission that the administration unlawfully sent Kilmar Armando Abrego Garcia to El Salvador despite an immigration court order prohibiting removal to that country.
Despite Garcia’s Jun. 6 return to the United States, during a Jul. 7 hearing, Judge Xinis refused to grant the government’s motion to dismiss the case, pressed DOJ about whether the indictment and return were used to facilitate compliance with her injunction, and highlighted unresolved production gaps (including the missing arrest warrant) and incomplete compliance with her orders. In a Jul. 23 order granting emergency relief to require Garcia’s return to Maryland pending further proceedings, she noted that, over the prior three months, the government had “disregarded court orders,” displayed “defiance and foot-dragging,” and a “persistent lack of transparency,” warranting further injunctive relief. She found that, despite the first part of her April 4 preliminary injunction (to facilitate Garcia’s release from El Salvador) having been met, the government had shown “no appetite” to fulfill the second part of the injunction—“to restore Abrego Garcia to the status quo ante.” Garcia remained in U.S. Marshals’ custody in Tennessee with an ICE detainer, and the court “shared Plaintiffs’ ongoing concern” that, “absent meaningful safeguards,” he could be removed again “without having restored him to the status quo ante.” Judge Xinis maintained that she would “not hesitate to revisit” broader relief “if Defendants fail to comply with this Order or otherwise attempt to remove Abrego Garcia … without due process.”
2-e. Government “not so subtly spurns” court orders; “respect … must be reciprocated,” or “anarchy would result”
Judge Stephanie Thacker (Obama appointee), Judge Robert King (Clinton appointee), Judge J. Harvie Wilkinson III (Reagan appointee), Abrego Garcia v. Noem, 25-1404 (4th Cir.)
Appeal from the district court’s Apr. 10 order directing the government to “take all available steps to facilitate” Abrego Garcia’s return and to report on steps taken.
On Apr. 17, the Fourth Circuit (Wilkinson, joined by King & Thacker) denied the government’s emergency stay and mandamus, stressing that “‘facilitate’ is an active verb” and that the word’s “plain and active meaning … cannot be diluted” as the government urged. Judge Wilkinson wrote that “‘[f]acilitation’ does not permit the admittedly erroneous deportation … in disregard of a court order that the government not so subtly spurns.” It warned that “if today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens … ?” Emphasizing comity, the Judge Wilkinson added:
“The respect that courts must accord the Executive must be reciprocated by the Executive’s respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions the Executive disfavors and exhortations to disregard court orders sadly illustrate.” (emphasis added).
Recalling President Eisenhower’s example—his insistence that the Executive must support and ensure enforcement of federal court decisions—Judge Wilkinson quoted: “unless the President did so, anarchy would result.”
3. Government took actions that “hardly appeared to comply with the TRO Order and raised some concern about the general presumption by courts ‘that executive officials will act in good faith.’”
Judge Beryl A. Howell (Obama appointee), Perkins Coie LLP v. U.S. Department of Justice, 1:25-cv-00716 (D.D.C.)
Challenge to Executive Order 14230 directing federal agencies to take actions against Perkins Coie, including terminating government contracts, denying members of the firm access to federal employees, and suspending employees’ security clearances.
In an Apr. 25 memorandum and order, inter alia, granting leave to amend the complaint, Judge Howell addressed two compliance problems with her Mar. 12 temporary restraining order (TRO). First, the government’s March 18 status report showed agencies were told to suspend EO 14230 §§1, 3, and 5, but were not directed to notify “every recipient” that disclosure requests under §3(a) were rescinded—leaving requests by agencies beyond the seven named defendants “in place notwithstanding the Court’s explicit TRO direction to all defendants—which included the United States, as defined in the Complaint.” As Judge Howell put it:
“[T]he government has already raised the specter that the current configuration of named defendants… may lead to … those agencies not named as defendants [to] claim to be free to ignore it. …. This scenario … would open the door to a game of judicial whack-a-mole, requiring … contested contempt proceedings against non-compliant agencies. … This is not the first instance in this case that has raised the potential specter of noncompliance, which has only crystallized the seriousness of the issues raised. … Luckily, forewarned is forearmed.” (emphasis added).
Second, the government’s March 20 status report attached a Bondi/Vought memorandum that added an extra two-sentence paragraph repeating the EO’s “dishonest and dangerous” accusation—language whose “implementation and use of which had specifically been enjoined by the TRO.” Judge Howell wrote:
“This intentional additional promulgation of derogatory statements about plaintiff across all the Executive branch agencies hardly appeared to comply with the TRO Order and raised some concern about the general presumption by courts ‘that executive officials will act in good faith.’ … As government’s counsel reluctantly conceded … the extra paragraph …. went ‘beyond the minimum required’ for compliance with the Court’s order clarifying the scope of the TRO.” (emphasis added).
4. “Clearly hasn’t complied” with court order, culminating in a looming contempt finding
Judge Royce C. Lamberth (Reagan appointee), Abramowitz v. Lake, 1:25-cv-00887 (D.D.C.) and Widakuswara v. Lake, 1:25-cv-01015 (D.D.C.) (related cases)
These related cases challenged the Trump administration’s attempt to dismantle the U.S. Agency for Global Media (USAGM) and shut down Voice of America (VOA) and its grantee networks pursuant to Executive Order 14238, which eliminated agency functions and ordered personnel reductions.
Following an Apr. 22 preliminary injunction, Judge Lamberth repeatedly found government failures to comply with his orders to restore VOA programming, giving defendants multiple opportunities across June to August to show good-faith compliance. At a Jun. 23 hearing, he “expressed … dissatisfaction with the lack of concrete evidence regarding VOA’s current operations or future plans,” and two further rounds of supplemental briefing remained conclusory and non-responsive. On Jul. 30, Judge Lamberth granted the plaintiffs’ motion to show cause why the government was not in violation of court orders, finding the government had “consistently refused to give the Court the full story,” provided “misleading and contradictory information,” and even omitted from its filings the “monumental” decision to remove Michael Abramowitz as VOA Director. At an Aug. 25 hearing, the court concluded that USAGM acting CEO Kari Lake “clearly hasn’t complied with my order,” was “stonewall[ing]” the Court, and was “on the verge of contempt.” That same day, the court gave the government “one final opportunity” and ordered depositions of Lake, USAGM adviser Frank Wuco, and VOA’s Persian broadcasts director by Sept. 15.
Update 1 (Oct. 15, 2025):
After the Aug. 25 hearing—and before the court-ordered depositions—the government pressed ahead with its reduction in force (RIF) plans. Defendants notified unions “immediately following” the hearing of an impending RIF; on Aug. 28, President Trump issued an executive order stripping USAGM employees of collective-bargaining rights; on Aug. 29, USAGM terminated the AFGE/AFSCME collective-bargaining agreements (which required 60 days’ notice for a RIF); and that evening, USAGM sent RIF notices to more than 500 employees effective Sept. 30.
In response, on Sept. 8, plaintiffs filed a joint motion to enforce prong (3) of the PI and preserve the status quo by barring the RIF pending Judge Lamberth’s compliance determination. On Sept. 29, after depositions had taken place, Judge Lamberth heard the motion to enforce and later that day issued a memorandum order. While deferring his ruling pending another round of briefing, he suspended the announced RIFs in the meantime and delivered sharp criticism of the government’s “concerning disrespect [it has] shown toward the Court’s orders,” including “obfuscat[ing]” requests for information that “disregard for [the court’s] orders to produce information would more than support a trial on civil contempt” (emphasis added). He added: “[F]ollowing the ordered depositions … the Court no longer harbors any doubt that defendants lack a plan to comply with the preliminary injunction, and instead have been running out the clock on the fiscal year” (emphasis added). Although declining to pursue contempt sua sponte, Judge Lamberth stressed that this “should not be mistaken for lenience toward the defendants’ egregious erstwhile conduct” (emphasis added).
5. “No choice but to find that they were in violation;” “flagrant violation.”
Judge Brian E. Murphy (Biden appointee), D.V.D. v. U.S. Department of Homeland Security, 1:25-cv-10676, (D. Mass.)
This case involved, inter alia, the removal of O.C.G., a Guatemalan national, to Mexico allegedly without a “meaningful opportunity” to raise a fear-of-torture claim.
On May 26, Judge Murphy wrote, “Twice, well-founded allegations of non-compliance or imminent non-compliance led this Court to amend or clarify the Preliminary Injunction.” First, the court described DHS’s attempts in late April to “evade this injunction by ceding control over non-citizens or the enforcement of its immigration responsibilities to … the Department of Defense” (emphasis added). Judge Murphy later found that DHS “rac[ed] to get [eight] class members onto a plane to unstable South Sudan, clearly in breach of the law and this Court’s order,” giving him “no choice but to find that they were in violation” of the Apr. 18 preliminary injunction, but “reserve[ing] ruling on whether such a violation warranted a finding of contempt” (emphasis added). Judge Murphy wrote that the government
“maintains that ambiguity in the phrase ‘meaningful opportunity’ precipitated this controversy. Indeed, when the Court issued the Preliminary Injunction, it declined to elaborate on what constitutes a ‘meaningful opportunity,’ preferring instead to let experience show through hard cases the finer points of what is required under the Due Process Clause. To be clear, this is not one of those hard cases. … [N]o reasonable interpretation of the Court’s Preliminary Injunction could endorse yesterday’s events.”
On May 26, Murphy said that it was “hard to come to any conclusion other than that Defendants invite lack of clarity as a means of evasion. … [I]t is hard to take seriously the idea that Defendants intended these individuals to have any real opportunity to make a valid claim.” In fact, Judge Murphy found the government’s conduct amounted to a “flagrant violation” of his injunction (emphasis added).
On Jun. 23, the Supreme Court stayed the district court’s injunction. On Jul. 3, the Supreme Court issued a second order clarifying that its earlier order fully blocks all components of the district court’s injunction that had prevented the administration from removing immigrants to third countries without an opportunity to present their claims of potential torture.
6. After weeks of having to “wrangle the Government into compliance,” judge noted an apparent “blatant disregard” of the court’s order.
Judge Mary S. McElroy (Trump appointee), Woonasquatucket River Watershed Council v. Department of Agriculture, 1:25-cv-00097 (D.R.I.)
This case involves a challenge to the Trump administration’s Executive Order 14154, requiring a pause on funding appropriated through the Inflation Reduction Act of 2022 (IRA) and the Infrastructure Investment and Jobs Act (IIJA)
On Aug. 8, responding to plaintiffs’ fourth compliance report for the Apr. 15 preliminary injunction, Judge McElroy noted the court and parties “had to have four status conferences over the course of three subsequent weeks to wrangle the Government into compliance” (emphasis added). Despite government assurances that HUD had “resumed processing” Green and Resilient Retrofit Program (GRRP) awards “in the ordinary course,” plaintiffs alleged “$760 million … still inaccessible.” The Court warned: “At risk of understatement, that is serious. If no ‘Comprehensive’ funding under GRRP has been processed in the nearly four months since the injunction, the Court struggles to see how HUD’s inaction can be construed as anything other than a serious violation of the Court’s order, one that exhibits blatant disregard for it” (emphasis added). Directed to “explain itself,” HUD said on Aug. 13 that some GRRP streams had resumed and that “Comprehensive” awards awaited a rule amendment moving through clearance. At a status conference later that day, Judge McElroy reportedly “called out the government for appearing to ‘slow walk’ the release of the money,” and ordered biweekly status reports.
On Aug. 27, plaintiffs reported they had “seen no indication” HUD had resumed processing “Comprehensive” awards or made “any concrete progress,” calling the update “facially insufficient,” offering “little information” on steps or timing, and leaving “little basis to conclude that HUD is not slow-walking its compliance.” In a Sept. 10 status report, the plaintiffs stated they “still have seen no indication that Defendants have resumed processing Comprehensive awards under the GRRP;” and that “a date certain for complete compliance and a clear, comprehensive timeline would aid Plaintiffs and this Court in assuring HUD is not slow-walking its compliance.
7. “Dressing their RIF in new clothes, and that they are thumbing their nose at both this Court and the Court of Appeals.”
Judge Amy Berman Jackson (Obama appointee), National Treasury Employees Union v. Vought, 1:25-cv-00381 (D.D.C.)
The case involved the Trump administration’s en masse removal of federal employees at the Consumer Financial Protection Bureau (CFPB).
On Mar. 28, Judge Jackson issued a preliminary injunction stating, in part, that the government (1) “shall not terminate any CFPB employee, except for cause related to the individual employee’s performance or conduct;” and (2) “shall not issue any notice of reduction-in-force [RIF] to any CFPB employee.”
On Apr. 11, the D.C. Circuit partially stayed the preliminary injunction and modified it to permit the termination and RIFs of employees who the government determined after “a particularized assessment, to be unnecessary to the performance of defendants’ statutory duties.”
Following the DC Circuit ruling, the Consumer Financial Protection Bureau quickly issued RIF notices affecting roughly 80% of its workforce. On Apr. 17, the plaintiffs submitted an emergency motion to show cause why the government had not violated the modified preliminary injunction.
The following day, Judge Jackson noted the “scope and speed” of the government’s action, “the apparent lack of consultation with the heads of the statutorily mandated agency components involved, and the troubling description of the RIF meetings,” at which one meeting Chief Legal Officer Mark Paoletta allegedly said “all that mattered was the numbers.” Judge Jackson went on to say she had:
“significant grounds for concern that the defendants are not in compliance with its Order as it was refined by the Court of Appeals. While the Chief Legal Counsel has intoned the phrase ‘particularized assessment,’ there is reason to believe that the defendants simply spent the days immediately following the Circuit’s relaxation of the Order dressing their RIF in new clothes, and that they are thumbing their nose at both this Court and the Court of Appeals.” (emphasis added).
While the government appealed, the D.C. Circuit on Apr. 28 sua spontereinstated the original preliminary injunction’s full ban on RIFs.
On Aug. 15, a divided D.C. Circuit panel vacated the preliminary injunction on jurisdictional and APA grounds.
8. Finding of noncompliance with a federal court order; FEMA’s “covert” rebranding of an indefinite freeze
Chief Judge John J. McConnell, Jr. (Obama appointee), State of New York v. Trump, 1:25-cv-00039 (D.R.I.)
This case involves the Trump administration’s indefinite halt on wind energy project approvals and its freeze on FEMA and other federal grant disbursements pursuant to a Jan. 27 Office of Management and Budget directive.
Following a temporary restraining order, the court found on Feb. 10 that FEMA had failed to comply with its “clear and unambiguous” order, granting plaintiffs’ motion to enforce and holding that the government “continued to improperly freeze federal funds and refused to resume disbursement of appropriated federal funds” in violation of the TRO’s “plain text.” (The Feb. 10 ruling reportedly marked the first case in which the administration was formally found to have failed to comply with a federal court order.) Although a preliminary injunction issued on Mar. 6 superseded the TRO and rendered the second enforcement motion moot, Judge McConnell stressed that the plaintiffs’ “unrebutted” evidence—presented after a full hearing at which the government offered “no answer, no evidence, and no counter to the States’ extensive evidence of still frozen funds”—demonstrated “irreparable and continuing harm” and expressly barred the government from reinstating the freeze “under a different name or through other means.” On Mar. 24, the plaintiffs again alleged ongoing freezes across hundreds of FEMA grant programs, and on Apr. 4 the court granted enforcement of its preliminary injunction, finding FEMA’s “manual review” process “essentially impose[d] an indefinite categorical pause on payments,” and warning that the agency could not “covertly” reinstate the freeze, ordering full compliance with the “plain text” of the injunction.
9. Agencies “actions violate the Preliminary Injunction.”
Judge Rita F. Lin (Biden appointee), Thakur v. Trump, 3:25-cv-04737 (N.D. Cal.)
This case involves a class action challenging agencies’ en masse termination (and later “suspension”) of UC research grants through form letters lacking grant-specific reasons.
On Aug. 12, Judge Lin determined that “NSF’s actions violate the Preliminary Injunction” (emphasis added). The Jun. 23 injunction had prohibited the NSF and other agencies from “giving effect to any grant termination that results in the termination of funding” of members of the class where the termination was communicated by a notice that lacked a “grant-specific explanation” and consideration of the “reliance interests at stake.” Following the injunction, NSF acted (through two letters on July 31 and Aug. 1) to purportedly “suspend” hundreds of UCLA grants, stating that the “awards no longer effectuate program goals or agency priorities” and citing campus allegations of “race discrimination,” “antisemitism,” and “bias.”
Rejecting NSF’s claim that its actions were not barred by the injunction because it suspended, rather than terminated, the grants, Judge Lin held the “‘suspensions’ were terminations by another name” and amounted to “indefinite, en masse funding cuts … without providing any avenue for the researchers to restore their funding.” She added that her injunction was “not unclear. It is not necessary for the order to describe every possible label an Agency could use to describe a research grant funding cut.” Judge Lin found that the suspension letters “suffer from the same infirmities as the letters considered in” her initial injunction as they “fail to provide a ‘grant- specific explanation’ for why the award has been terminated“ and “[fail to] provide any grant-specific explanation of NSF’s consideration of the researchers’ reliance interests.”
Accordingly, the court vacated NSF’s suspensions and ordered NSF to restore the status quo and reinstate the grants.
Update 1 (Oct. 15, 2025):
On Sept. 22, Judge Lin issued a second preliminary injunction covering a separate class of researchers whose grants had been terminated, and directed defendants to file, by Sept. 29, a status report confirming full compliance or, if not feasible, explaining why and detailing steps taken to date. On Sept. 29, the government reported it could not comply before Oct. 10 because reinstating awards is a “complicated” process, prompting Judge Lin to direct a further update on NIH’s and DoD’s compliance and grant reinstatements by Oct. 10. On Oct. 1, defendants moved for a seven-day stay due to anticipated DOJ furloughs during the impending government shutdown; Judge Lin granted the motion on Oct. 3, extending the reinstatement deadline to Oct. 17.
10. Government action “violated this Court’s order staying Petitioner’s removal”
Judges Richard J. Sullivan (Trump appointee), Alison J. Nathan (Biden appointee) and Maria Araújo Kahn (Biden appointee), Melgar-Salmeron v. Bondi, 23-7792 (2d. Cir.)
This case involves an undocumented immigrant who was removed to El Salvador despite a court order barring his removal.
On April 17, 2025, the administration moved to expedite Melgar-Salmeron’s deportation case and removal. Petitioner moved for emergency relief and requested the government be enjoined from removing him, which the Second Circuit granted on May 7.
Despite the court order barring his removal, the petitioner was placed on a flight to El Salvador 28 minutes later, which the government stated the following day was due to an administrative error. On May 12, the Second Circuit ordered the government to provide details as to the circumstances of his removal. On June 24, the court ruled that the government must facilitate the Petitioner’s return from El Salvador as soon as possible. The Court explained that the Government acknowledged that they had transferred the Petitioner, an alleged MS-13 member, to El Slavador on May 7, 2025 in defiance of a court order and despite assurances given to the court due to a “a confluence of administrative errors” in the Government’s words. The government’s action was “improper because it violated this Court’s order staying Petitioner’s removal from the United States during the pendency of this matter before this Court,” the panel wrote.
11. Government counsel “make no attempt to offer any justification for their blatant lack of effort to comply;” and unrebutted claim that the government created a sui generis document as a “contrivance” to avert court ruling
Judge Stephanie A. Gallagher (Trump appointee) J.O.P. v. DHS, 8:19-cv-01944-SA (D. Md.)
Chief Judge Roger L. Gregory (Clinton recess appointee; W. Bush appointee) and Judge DeAndrea Gist Benjamin (Biden appointee), No. 25-1519 (Fourth Circuit)
This case involves an individual deported to El Salvador in alleged violation of a judicially-enforced agreement that prohibited unaccompanied minors’ removal from the United States prior to the final determination of their asylum claims.
On Apr. 23, Judge Gallagher ordered the government to facilitate the return to the United States of “Cristian,” a pseudonymous member of the class covered by the agreement who had been deported to El Salvador. At the time, Judge Gallagher wrote that “Defendants have provided no evidence, or even any specific allegations, as to how Cristian, or any other Class Member, poses a threat to public safety.” On May 1, the United States Customs and Immigration Service (USCIS) produced an “Indicative Asylum Decision” asserting that, “if Cristian were returned to the United States, it would deny his asylum application based on (1) terrorist-related inadmissibility grounds . . . and (2) as a matter of discretion.” The Department of Justice presented the document to the court as demonstrating an “adjudication on the merits” that was the “precise relief” Cristian sought.
In a May 19 order denying the government’s motion for a stay of Gallagher’s order pending appeal, the Fourth Circuit noted that “the Indicative Asylum Decision—created five days after the district court’s facilitation order was issued—was not an authentic change in factual circumstances. Cristian contends that neither ‘USCIS regulation, policy, [n]or practice’ provides for ‘Indicative Asylum Decisions,’” and that the decision was “a ‘litigation-driven’ document—a ‘contrivance’ ‘created just for this case. The Government has no response to this charge—a deafening silence” (emphasis added).
On May 28, Judge Gallagher issued an order finding that Defendants’ had “utterly disregarded this Court’s May 20, 2025 Order” which required Defendants to provide a status report “on the steps they have taken to facilitate the return of Cristian to the United States” before May 27. Judge Gallagher found that Defendants’ untimely response “is the functional equivalent of, ‘we haven’t done anything and don’t intend to’” and said that the Defendants had also shown “zero effort to comply” with the Court’s April 23 Order. “Defendants not only ignore the requirements of this Court’s Orders, ECF 254, 280, but also make no attempt to offer any justification for their blatant lack of effort to comply,” the court wrote (emphasis added).
12. “No dispute Defendants are in breach” of court-approved settlement agreement, court also references “Defendants’ delay in curing that breach and complying with the Court’s June 10, 2025 Order.”
Judge Dana M. Sabraw (Bush appointee), Ms. L. v. U.S. Immigration and Customs Enforcement, 3:18-cv-00428 (S.D. Cal.)
This case involves non-compliance with a 2023 settlement made regarding a court case filed in 2018, during the first Trump administration, where the government agreed to provide reunification and other services to a class of plaintiff parents who were separated from their children at the southwest border of the United States.
On Apr. 23, members of the plaintiff class filed a motion to enforce the settlement agreement, alleging that the government had refused to renew the legal services contract associated with the 2023 settlement (which committed the government to “continue to contract with an independent contractor to . . . assist Ms. L. Settlement Class members and Qualifying Additional Family Members with necessary parole and employment authorization applications”). On June 10, Judge Sabraw granted the motion to enforce on June 10, granting “the remedy of specific performance in the form of a Court order requiring Defendants to reinstate their contract with Acacia to provide the services set out in the Settlement Agreement” and stating “there is no dispute Defendants are in breach.” On June 27, Judge Sabraw filed an order following a status conference that required defendants to “set out their position on whether the Court has authority to extend the term of the Settlement Agreement given Defendants’ decisions to cancel their contracts with the previous service providers (Acacia and Seneca), the Court’s finding that Defendants are in breach of the Settlement Agreement, and Defendants’ delay in curing that breach and complying with the Court’s June 10, 2025 Order.”
Defendants responded by filing a Rule 60(b) motion seeking temporary relief from the court order, while plaintiffs filed a motion for immediate interim relief on July 23 that stated: “During this time, Defendants have made no meaningful steps to comply with the Court’s order enforcing the Agreement. The Class has been without legal services for almost three months and Defendants in breach for as long.” Judge Sabraw denied defendants’ motion on July 24, while simultaneously granting an additional motion to enforce (“Defendants did not comply with the Court’s order to reinstate the task order with Acacia.”).
In an Aug. 20 joint status report, plaintiffs stated that: “Defendants intend to impose new limitations on Acacia’s provision of legal services that are inconsistent with the Settlement Agreement. Under its previous contract, Acacia accepted referrals for legal services of pro bono screenings from any source… The new contract, however, requires that Acacia accept new referrals only from the Executive Office for Immigration Review.” On Aug. 22, Judge Sabraw found such conditions “contrary to the spirit and purpose of the Settlement Agreement and this Court’s June 10, 2025 Order granting Plaintiffs’ renewed motion to enforce that Agreement” and ordered that they “should not be part of the parties’ ongoing negotiations.”
The case is currently on appeal to the Ninth Circuit, with briefing scheduled to begin on Nov. 18.
13. “[I]t appears that OMB sought to overcome a judicially imposed obstacle without actually ceasing the challenged conduct. The court can think of few things more disingenuous.”
Judge Loren L. AliKhan (Biden appointee), National Council of Nonprofits v. Office of Management and Budget, 1:25-cv-00239 (D.D.C.)
This case involves OMB’s memo requiring federal agencies to pause any activities related to President Donald Trump’s executive orders.
On Jan. 28, the court granted an administrative stay: “During the pendency of the stay, Defendants shall refrain from implementing OMB Memorandum M-25-13 with respect to the disbursement of Federal funds under all open awards.”
On Feb. 3, Judge AliKhan granted a temporary restraining order on the memo’s implementation, stating:
“For Defendants to innocently claim that OMB’s poststay actions were merely a noble attempt to ‘end[] confusion,’ strains credulity. By rescinding the memorandum that announced the freeze, but ‘NOT . . . the federal funding freeze’ itself, it appears that OMB sought to overcome a judicially imposed obstacle without actually ceasing the challenged conduct. The court can think of few things more disingenuous. Preventing a defendant from evading judicial review under such false pretenses is precisely why the voluntary cessation doctrine exists. The rescission, if it can be called that, appears to be nothing more than a thinly veiled attempt to prevent this court from granting relief.” (citations omitted) (emphasis added).
14. Defendants “have not complied with the … TRO,” efforts to “evade [the preliminary injunction’s] terms through post-hoc explanations.”
Judge Amir H. Ali (Biden appointee) AIDS Vaccine Advocacy Coalition v. USAID, 1:25-cv-00400 (D.D.C.) and Global Health Council v. Trump, 1:25-cv-00402 (D.D.C.) (related cases)
These two cases involve challenges to the Trump administration’s suspension of USAID funding.
On Feb. 20 Judge Ali granted in part the plaintiffs’ emergency motion to enforce the temporary restraining order “to the extent Defendants have not complied with the terms of the TRO,” namely, by “continu[ing] their blanket suspension of funds pending review of agreements, the very action that the TRO enjoined” and by seeking to “search for and invoke new legal authorities as a post-hoc rationalization for the en masse suspension” or to “replace their earlier implementations with ‘other directives’ to ‘suspend[], paus[e], or otherwise prevent[] the obligation or disbursement of appropriated foreign-assistance funds’” (emphasis added). The court did not make a finding of contempt, as requested by the plaintiffs, citing “Defendants’ explicit recognition that ‘prompt compliance with the order’ is required.”
On Feb. 24, plaintiffs in Global Health Council v. Trumpfiled a renewed emergency motion to enforce the TRO. At the close of the Feb. 25 hearing, Judge Ali granted the motion and adopted plaintiffs’ proposed relief, ordering by 11:59 p.m. on Feb. 26 that defendants “pay all invoices and letter of credit drawdown requests” for work completed before the Feb. 13 TRO; “permit and promptly pay” drawdowns and reimbursements on grants and assistance agreements; and “take no actions to impede” and “take all necessary action to ensure the prompt payment of appropriated foreign assistance funds.” The court also required that the joint status report due noon on Feb. 26 confirm steps taken and that disbursements would be made by 11:59 p.m. that day, and directed defendants to provide by noon any “directives or guidance” sent since Feb. 13 concerning TRO implementation or suspensions/terminations. Noting that the record showed payments remained frozen, the court observed: “Defendants have not rebutted that evidence, and when asked today, defendants were not able to provide any specific examples of unfreezing funds pursuant to the Court’s TRO” (emphasis added).
On Jul. 21, following a Mar. 10 preliminary injunction—which ordered the government not to withhold payment for work performed before Feb. 13—the court granted in part the plaintiffs’ motion to enforce. “The Court’s preliminary injunction did not include any exception for Defendants to evade its terms through post hoc explanations for terminations, and the Court has previously rejected similar attempts by Defendants,” Judge Ali said, adding that the government “must promptly take steps to come into compliance as to the awards at issue.” It otherwise denied or deferred further relief pending the D.C. Circuit’s decision of the government’s appeal.
15. “Manifestly unreasonable” and “contrived” reading of injunction, “border[ing] on violating Federal Rule of Civil Procedure 11(b)” and “deserving of … reprimands”
Judge Lauren King (Biden appointee), State of Washington v. Trump, 2:25-cv-00244 (W.D. Wash.)
This case involves several states suing to enjoin an Executive Order directing agencies to cut off federal research and education grants to medical institutions, including hospitals and medical schools, that provide gender-affirming care.
On Feb. 28, Judge King granted the motion for a preliminary injunction, except as to a small Section 8(a) of the Executive Order.
On Mar, 6, plaintiffs submitted a motion to hold defendants in contempt of court, alleging that the government tried to circumvent the preliminary injunction by falsely claiming actions taken to withhold funding under the enjoined EOs were actually taken pursuant to other policies.
On Mar. 17, Judge King denied plaintiffs’ motion for contempt, granted expedited discovery on the question of whether the actions were taken pursuant to the enjoined EOs, and criticized the government for its “unreasonable interpretation of the Court’s orders.” He wrote:
“The Court first addresses Defendants’ unreasonable interpretation of the Court’s orders. Defendants argue that the Court ‘enjoined enforcement of Sections 3(e) or 3(g) of the [Gender Ideology] EO only as to “gender-affirming care” as that term is used in the [Medical Services] EO’—i.e., only as to the four Listed Services. This interpretation borders on violating Federal Rule of Civil Procedure 11(b). … Despite Defendants’ contrived arguments to the contrary, … it is clear from the Court’s preliminary injunction order that “gender-affirming care” includes all [various forms of gender-affirming set out in the preliminary injunction]. … In sum, it was manifestly unreasonable for Defendants to ‘understand this Court’s enjoinment of Section[s] 3[(e) and (g)] of the [Gender Ideology] EO . . . to exclude . . . care other than the Listed Services.’ …
Defendants also adopt an unreasonably narrow and self-serving view of what constitutes ‘care,’ arguing that research studies categorically cannot include the provision of care. Such an interpretation appears to be deliberately ignorant: it is common knowledge that research studies frequently involve patient care. …
Defendants’ unreasonable and self-serving interpretation of the Court’s orders is certainly deserving of the above reprimands, as well as a warning that the Court may impose sanctions for any future violations of Rule 11, other Federal Rules, the Local Civil Rules, or its orders. The Court further orders counsel for Defendants to correct their unreasonable interpretation of the Court’s orders.” (emphasis added).
Granting expedited discovery, the court said, “NIH’s communications have raised substantial questions regarding whether the March 4, 2025 federal funding revocation occurred as part of enforcement of the Gender Ideology EO in contravention of the Court’s preliminary injunction.” But finding enough had not been presented to establish contempt, the court said, the “evidence raises the possibility that the March 4 revocation of grant funding was effected pursuant [the EO] for an enjoined purpose. But a mere possibility that an action violates a court order is not enough to establish contempt.”
On April 30, plaintiffs moved to compel discovery and catalogued evidence of alleged noncompliance, but by then NIH had already reinstated the terminated grant on Mar. 27, after the court authorized expedited discovery; defendants argued that reinstatement rendered the contempt-related discovery moot. On June 16, the court agreed and denied the motion to compel as moot, adding that plaintiffs’ fallback request for monetary contempt sanctions could not keep the issue live because sovereign immunity bars such awards absent an express waiver.
16. Government at “risk [of] being held in contempt” for disregard of discovery orders, and later “failed to comply” with submitting declaration.
Judge Edward M. Chen (Obama appointee), National TPS Alliance v. Noem, 3:25-cv-01766 (N.D. Cal.)
This case involves the Trump administration’s decision to terminate temporary protected status for Venezuelans in the United States.
On May 19, Judge Chen warned the government it was at “risk [of] being held in contempt” due to their disregard for the court’s discovery orders. He wrote:
“To be clear, the Court’s discovery order requiring production today still stands. Defendants are expected to comply with that order unless and until the Court rules otherwise. The Supreme Court’s decision stayed the Court’s postponement order but did not stay the litigation on the merits. Defendants risk being held in contempt of Court if they do not comply with the Court’s discovery order.” (emphasis added).
On May 29, 2025, the court held a hearing on the plaintiffs’ motion regarding alleged noncompliance with discovery orders. The court ordered the defendants to “immediately ask the 20 custodians at issue whether they used communication means outside of government email and OneDrive with respect to the TPS decisions (e.g., nongovernment email, text messaging, hard drive),” and further required that “[b]y 6/3/2025, the government shall file a declaration(s) from a person(s) with personal knowledge certifying that the inquiry was made and what the responses of each of the custodians were.” On June 4, the plaintiffs filed a notice of noncompliance with the court’s order to file declarations by June 3. On June 5, the Court ordered that the “government has failed to comply with the Court’s order and has not given a specific date by which it will comply. The Court orders the government to provide the declaration previously ordered by today, June 5” (emphasis added).
Note: Similar to National TPS Alliance v. Noem, in other cases courts have found the government did not comply with judicial orders to submit filings or other documents. See, e.g., Judge Timothy J. Kelly (Trump appointee), OCA – Asian Pacific American Advocates v, Rubio, 1:25-cv-00287 (D.D.C.) (Minute order stating that “Defendants’ continuing inexplicable failure to comply with the Court’s 6 Standing Order, Defendants have not shown good cause for a further extension” (emphasis added)). Updates of new cases (nos. 17-20):
17. Federalizing California and Texas Guard to Portland constituted “direct contravention” and “apparent violation of the First TRO;” judge “deeply troubled” and “not inclined” to accept excuses; no contempt finding but the court “retains jurisdiction”
Judge Karin J. Immergut (Trump appointee), State of Oregon v. Trump, 3:25-cv-01756 (D. Or.)
This case challenges Secretary Hegseth’s Sept. 28 memorandum (“Hegseth Memorandum”) authorizing the federalization and deployment of National Guard forces to Portland (Memorandum citing President Trump’s Jun. 7 memorandum invoking 10 U.S.C. § 12406 to authorize nationwide Guard mobilization).
On Oct. 4, Judge Immergut granted the plaintiffs’ motion for a temporary restraining order and enjoined the Hegseth Memorandum for 14 days, finding the federal government likely lacked authority under 10 U.S.C. § 12406 to federalize Oregon National Guard members and that the action likely violated the Tenth Amendment. The federal government filed an appeal with the Ninth Circuit the same day. In the early hours of Oct. 5, the Defense Department deployed federalized California National Guard personnel to Portland and began deploying Texas National Guard to Portland as well, prompting plaintiffs to move for a second TRO to preserve the status quo and “prevent circumvention of the first TRO.”
At the Oct. 5 hearing on the motion, Judge Immergut said the government’s deployment of federalized Guard members “appear[s] to be in direct contravention” of the TRO (emphasis added). She reportedly reminded counsel repeatedly that he was an “officer of the court”—asking, “You are an officer of the court. Aren’t defendants circumventing my order?” The court granted the plaintiff’s motion for a second TRO, stating that the federal government is “temporarily enjoined from deploying federalized members of the National Guard in Oregon.”
(On Oct. 8, the Ninth Circuit granted the government an administrative stay of Judge Immergut’s Oct. 4 TRO on the federalization of the Guard, but did not stay the district court’s orders on the deployment of the federalized Guard.)
Update 2 (Nov. 20, 2025):
Before the bench trial began on Oct. 29, Justice Department lawyers acknowledged that nine Oregon National Guard troops had been deployed to the Portland ICE facility just hours before Judge Immergut issued her TRO—and fewer than 24 hours after the TRO hearing. The troops remained there for several hours before their duty ended. Judge Immergut reportedly told counsel: “We’ll discuss later whether that’s contempt and in direct violation of my TRO, but we’re moving on.” The next day, the judge pressed the issue saying, “The government deployed that very night, knowing that I told you I would issue an opinion as quickly as I could,” adding, “Does that not seem to be in bad faith?” (emphasis added). She reportedly questioned DOJ’s explanation that it “took time” to notify personnel, observing the administration’s rapid coordination elsewhere such as within hours of the TRO, DOD flew in 200 California National Guard and prepared to fly in Texas Guard if needed. “The point is that they could have gotten the message to the guardsmen if it was important,” she stated.
On Nov. 7, Judge Immergut issued a permanent injunction barring the government from federalizing and deploying Oregon’s National Guard, holding the plan was ultra vires under 10 U.S.C. § 12406 and in violation of the Tenth Amendment. She further commented on the government’s non-compliance:
“Ordinarily, this Court would be inclined to accept Defendants’ explanation for their violation of the First TRO given that ‘the first shift’ at the Portland ICE facility commenced prior to this Court’s issuance of the First TRO. However, in light of the following facts, this Court is deeply troubled by Defendants’ continued deployment of Oregon National Guardsmen at the Portland ICE facility in violation of the First TRO. In the seven hours that Defendants took to ‘convey the message’ of the First TRO ‘to people on the ground,’ Defendants simultaneously ‘convey[ed] the message’ to the U.S. Army Northern Command to send 200 of the federalized California National Guard personnel in Los Angeles to Portland. … In other words, Defendants had time to order and coordinate the transport of federalized California National Guardsmen from Los Angeles to Portland but needed more time to communicate with the Oregon National Guardsmen at the Portland ICE facility.
This Court has not issued any finding of contempt based on Defendants’ apparent violation of the First TRO. However, this Court expects Defendants will provide further explanation when ordered to do so by this Court in the future, and this court retains jurisdiction over the issue.” (citations omitted) (emphasis added).
18. HHS termination letters to employees that “do not comply” with the preliminary injunction.
Judge William Haskell Alsup (Clinton appointee), American Federation Of Government Employees, AFL-CIO v. Office of Personnel Management and Charles Ezell, 3:25-cv-01780 (N.D. Cal.)
The case involved the government’s efforts to significantly reduce the federal workforce’s probationary employees via termination letters that criticized workers’ “performance.”
On Jul. 23, Judge Alsup addressed “two compliance concerns relating to the existing preliminary injunction.” The first involved the government’s alleged failure to act in compliance with the court’s Apr. 18 preliminary injunction requiring the defendants to provide proper notice to certain HHS probationary employees who had been terminated. Second, the court ruled that the agency’s letters that had been sent “do not comply with the terms of the preliminary injunction” because they were not individually directed to each affected employee. Judge Alsup directed the parties to work together to resolve these compliance issues and scheduled a status hearing for Aug. 28.
On Sept. 12, Judge Alsup granted partial summary judgment for the plaintiffs but did not order reinstatement of the terminated employees or otherwise resolve the compliance concerns raised in the Jul. 23 order.
19. ICE “unequivocally ceased compliance” with 2022 court-ordered Castañon Nava settlement agreement, committing “repeated, material violations;” and parties agreed government conduct was “violation of the terms of the Consent Decree”
Judge Jeffrey I. Cummings (Biden appointee), Castanon Nava v. Department of Homeland Security, 1:18-cv-03757 (N.D. Ill.)
This class action challenges ICE’s warrantless-arrest practices, as part of “Operation Midway Blitz,” and seeks to enforce a court-ordered settlement (consent decree) requiring compliance with 8 U.S.C. §1357(a)(2)—including policy, training, and documentation obligations—within ICE’s Chicago Area of Responsibility.
Following a court-ordered settlement agreement (the Castañon Nava settlement) in Feb. 2022—requiring ICE to conduct warrantless arrests only in compliance with 8 U.S.C. §1357(a)(2) and to document the basis for those arrests—on Oct. 7, addressing the plaintiffs’ motion to enforce, Judge Cummings held that while ICE had been in substantial compliance for two-and-a-half years, the agency “unequivocally ceased compliance” by Jun. 11, 2025—as reflected in ICE’s Principal Legal Advisor’s agency-wide email and ICE’s own concessions—and found “by a preponderance of the evidence” that ICE arrested “twenty-two out of the twenty-six” claimant class members without warrants in violation of the Castañon Nava settlement and §1357(a)(2).
Update 2 (Nov. 20, 2025):
At a Nov. 12 hearing, Judge Cummings ordered the government to begin releasing hundreds of detainees, temporarily barred removals for the 615 detainees at issue, and reportedly underscored: “There would be nothing for me to do if the arrests of the people here were done in accordance with the agreement,” adding, “but in the event that there are allegations that the people are arrested in violation of this consent decree, I will react and take appropriate actions.”
Judge Cummings followed up with a written order on Nov. 13. He noted that according to the parties’ Nov. 7 status reports, “the parties have agreed—after an examination of the pertinent arrest records—that 46 class members were arrested in violation of the terms of the Consent Decree and are thus entitled to relief under the Decree.” The court added that “the majority of these class members have already been removed from the United States … and only 13 of these class members remain in detention.” Invoking § V(B)(2) of the Castañon Nava settlement, Judge Cummings reiterated his prior finding: “The Court finds, as it has found previously, … that the 46 agreed upon violations of the Consent Decree … constitute ‘repeated, material violations’” (emphasis added). The court further observed that additional violations are likely to emerge:
“Given the number of instances where the parties have agreed that the rights of class members were violated, it stands to reason that a significant number of additional violations will be uncovered as plaintiffs receive and analyze the arrest records of the remaining arrestees” (emphasis added).
20. Government “ha[s] done precisely what the Memorandum and Order forbids;” “not a good faith effort to comply”
Judge William E. Smith (Bush appointee), State of Illinois. v. Federal Emergency Management Agency, 1:25-cv-00206 (D.R.I.) The case involved a lawsuit by twenty states and the District of Columbia suing to block the administration’s effort to condition federal emergency funding on compliance with federal immigration enforcement policy.
On Sept. 24, Judge Smith granted summary judgment and a permanent injunction stopping DHS from enforcing immigration-related conditions to federal disaster grants and emergency management programs.
On Oct. 14, Judge Smith held that the administration violated the court’s permanent injunction by including the contested conditions in award letters for required acceptance by the recipient. The new language included a disclaimer saying, “[i]f the injunction is stayed, vacated, or extinguished, the [contested conditions] will immediately become effective.” Judge Smith wrote:
“Defendants have done precisely what the Memorandum and Order forbids, which is requiring Plaintiff States to agree to assist in federal immigration enforcement or else forgo the award of DHS grants. The fig leaf conditional nature of the requirement makes little difference. No matter how confident Defendants may be of their chances on appeal, at present, the contested conditions are unlawful. Plaintiff States therefore have a right to accept the awards without regard to the contested conditions. Defendants’ new condition is not a good faith effort to comply with the order; it is a ham-handed attempt to bully the states into making promises they have no obligation to make at the risk of losing critical disaster and other funding already appropriated by Congress” (emphasis added).
21. “[P]rofoundly concerned” order on use of force in Chicago protests not being followed
Judge Sara L. Ellis (Obama appointee), Chicago Headline Club v. Noem, 1:25-cv-12173 (N.D. Ill.)
This case involves a challenge to federal agents’ use of force—including tear gas, rubber bullets, and pepper balls—against protesters, religious practitioners, and journalists during immigration enforcement operations in Chicago, as part of “Operation Midway Blitz.”
Following a temporary restraining order issued on Oct. 9, which, inter alia, barred the use of tear gas and other riot control munitions against protesters, journalists, and religious practitioners not posing an immediate threat, and required that dispersal warnings be given before any such force was deployed, allegations emerged that ICE agents had continued to use tear gas without proper notice.
During an Oct. 16 hearing, Judge Ellis reportedly said she was “profoundly concerned” that federal agents might have violated her order. “At least from what I’m seeing, I’m having serious concerns that my order’s being followed,” Judge Ellis said from the bench, emphasizing, “I’m not happy. I’m really not happy.” (emphasis added). Also during the Oct. 16 hearing, as a way to monitor compliance with her TRO, Judge Ellis reportedly directed the government to file proposed modifications to reflect a body-worn camera requirement she planned to impose.
During an Oct. 17 hearing, responding to government pushback on the court’s requirement that body-worn cameras be used in certain circumstances, Judge Ellis reportedly said: “Maybe I wasn’t clear yesterday. That wasn’t a suggestion,” adding, “I am modifying the [TRO] to include body-worn cameras. … It’s not up for debate.” She reportedly added, “It wasn’t a hint. It was an order. So I will enter it today, and I will expect that it will be followed.” The court modified the TRO accordingly to require body-worn cameras in specified circumstances (the body camera requirement has several limitations: it applies only to immigration agents who already have cameras and have been trained to use them; undercover agents are exempt; and agents need not activate the cameras in certain places, including jails and ports of entry). The government was given until Oct. 24 to file its policies implementing the new directive.
At the Oct. 20 hearing, Judge Ellis said: “I have a few concerns that the TRO wasn’t being followed” (emphasis added). Judge Ellis did not rule immediately on the plaintiffs’ motion to enforce the TRO, instead ordering that the matter be heard on Nov. 5 during the preliminary injunction hearing.
Following a Nov. 5 evidentiary hearing that included live testimony, Judge Ellis extended her Oct. 9 temporary restraining order on Nov. 6, granting the plaintiffs’ motion for a preliminary injunction from the bench. During her oral ruling, Judge Ellis reportedly said CBP Chief Gregory Bovino did not warn protestors in Little Village before he deployed tear gas, saying, “That happened after I entered the TRO.” (The court does not appear to have addressed the plaintiffs’ later motion that the government continues to violate the TRO and preliminary injunction.)
(On Nov. 19, a Seventh Circuit panel stayed Judge Ellis’s Nov. 6 preliminary injunction as “overbroad,” pending appeal; the order did not address her earlier TRO-compliance concerns.)
22. DHS “do not seem to have considered” the Court’s “prior rulings” in the TPS-termination case, leading to an “admonish[ment]” for re-asserting already-rejected privileges and for “glaring[ly]” “fail[ing] to make” the previously required showings.
Magistrate Judge Sallie Kim, National TPS Alliance v. Noem, 3:25-cv-05687 (N.D. Cal.)
This case involves a challenge to DHS Secretary Kristi Noem’s decisions terminating Temporary Protected Status (TPS) for certain countries.
On Oct. 16, addressing the plaintiffs’ objections to the government’s attempts to withhold TPS-related documents under the deliberative-process and attorney-client privileges, Judge Kim ordered further disclosure and criticized the government for ignoring prior rulings. She wrote:
“This is not the first time the Undersigned has reviewed documents in camera to address the parties’ disputes over Defendants’ claimed privileges. Unfortunately, Defendants do not seem to have considered the Undersigned’s prior Orders in this case and in National TPS Alliance v. Noem, No. 25-cv-01766-EMC. For example, Defendants continue to claim documents dated after Department of Homeland Security (“DHS”) Secretary Kristi Noem’s decisions to deprive Temporary Protected Status (“TPS”) holders from Honduras, Nepal, and Nicaragua were made or that do not contain any opinions, recommendations, or advice. In the future, Defendants are admonished to consider the Undersigned’s prior rulings when determining whether to assert the attorney-client or the deliberate process privileges.” (emphasis added).
The court further noted:
“Defendants do not provide any analysis for balancing the factors and do not explain why the Plaintiffs’ need for the materials and the need for accurate fact-finding should not override Defendants’ interest in non-disclosure. In light of the Undersigned’s previous orders requiring the disclosure of similar materials, Defendants failure to make this showing is particularly glaring. Nor do Defendants do not address the Court’s prior determinations and, thus, make no effort to show how the documents currently before the Court for in camera review differ from those documents the Undersigned previously ordered disclosed.” (emphasis added).
On Oct. 21, clarifying her Oct. 16 order, Judge Kim wrote that
“[t]hat Order should not have been surprising to any party because it was in line with what the Court has previously ordered. At no point has the Court determined that any document may actually be withheld based on the deliberative process privilege.” (emphasis added).
After defendants sought de novo review of the magistrate judge’s order, the District Judge directed them to resubmit the challenged documents for another in camera review. On Oct. 31, the court found that while a few portions arguably contained deliberative material, the government had “[a]gain … fail[ed] to address” the balancing factors and had made no effort to show how these documents differed from the ones the court had previously ordered disclosed.
(After repeatedly seeking emergency relief from Magistrate Judge Kim’s privilege orders, the government’s third motion was denied and Judge Thompson affirmed Judge Kim’s rulings and ordered production of the documents.)
23. Two DOJ prosecutors in Abrego Garcia criminal case “side-stepped” the court’s notify-your-client directive on extrajudicial statements
Judge Waverly D. Crenshaw, Jr. (Obama appointee), United States v. Abrego Garcia, 3:25-cr-00115, (M.D. Tenn.)
This case involves the federal government’s criminal prosecution of Kilmar Abrego Garcia following his filing of a legal challenge to his removal to El Salvador.
On Jul. 31, after weeks of public statements by senior officials and DHS posts that the defense said risked tainting the jury pool, the court held that for those before it, compliance with LCrR 2.01(a)(1) and (a)(4) is “not discretionary,” and that “all counsel” must ensure any proper public communications state the indictment contains only allegations and that the defendant is presumed innocent. As relevant here: LCrR 2.01(a)(1) bars any extrajudicial statement likely to be disseminated that has a substantial likelihood of materially prejudicing an adjudicative proceeding; LCrR 2.01(a)(2)(B) lists categories “more likely than not” to be prejudicial (e.g., prior record/character, plea talks, tests, witness credibility, expected evidence, the fact of charge without a presumption-of-innocence qualifier, opinions on guilt/evidence, and inadmissible information). And LCrR 2.01(a)(4) applies the rule to “law firm(s) and government agencies or offices, and the partners and employees of such firms, government agencies or offices.”
On Sept. 26, the court ordered each counsel of record to report what they had done to comply; the government’s counsel of record—U.S. Attorneys Robert E. McGuire and Jason M. Harley—first submitted a joint filing. The court construed that as McGuire’s report and directed Harley to file his own by Oct. 15; he did so on Oct. 15 .
On Oct. 27, ruling (see also here) on the defense motion for an order requiring DOJ and DHS officials to refrain from making prejudicial statements (ECF 118), the court granted relief to the extent that the government and its employees must comply with LCrR 2.01(a)(4). Judge Crenshaw ruled that “implicit in” subsection (a)(4) is counsel’s duty to notify their agencies of the (a)(1)–(2) restrictions, and that:
“It does not appear those agency employees have been notified by counsel of record about those employees’ obligation to adhere to the Local Rule. Mr. McGuire and Mr. Harley side-stepped the Court’s Order to report what they had done to comply with Local Rule 2.01(a)(4).” (emphasis added).
The court ordered McGuire and Harley to provide the order and memorandum to all DOJ and DHS employees within two days, including the Attorney General and the DHS Secretary, and those employees were put on notice of the prohibitions and potential sanctions.
24. USDA “undermined both the intent and the effectiveness” of two orders on November SNAP payments; judge was “not inclined to excuse this noncompliance”
Chief Judge John J. McConnell, Jr. (Obama appointee), Rhode Island State Council of Churches v. Rollins, 1:25-cv-00569 (D.R.I.)
This case involves a challenge to the suspension of November 2025 SNAP benefits by the U.S. Department of Agriculture (USDA), allegedly as a result of the government shutdown that began Oct. 1, 2025.
At an Oct. 31 virtual hearing, Judge McConnell granted the plaintiffs’ emergency motion for a temporary restraining order, finding them substantially likely to succeed on their APA claim because USDA’s decision to withhold SNAP funding was “contrary to law and arbitrary and capricious,” and ordering the agency to distribute funds “as soon as possible.” On Nov. 1, Judge McConnell issued a written TRO offering the government two compliance paths to address the irreparable harm the court had identified the day before—harm that “would occur if millions of people were forced to go without funds for food” during the funding lapse. Per the court’s order, first, the government could fully fund November SNAP by Nov. 3 using Section 32 and/or contingency funds—if not, the decision had to “be made in accordance with the APA” and not be “arbitrary or capricious.” Second, the government could use contingency funds to make a partial payment by Nov. 5, in which case the government had to “expeditiously resolve the administrative and clerical burdens” of doing so. The government chose the partial-payment option.
After reviewing the government’s status reports on compliance and considering the plaintiffs’ motion to enforce the TRO and for a further TRO, Judge McConnell issued a Nov. 6 oral ruling from the bench granting the motion and ordering USDA to fully fund November SNAP benefits by Nov. 7. As to the plaintiffs’ motion to enforce, Judge McConnell explained in a written order later that day, “The record is clear that the Defendants … neither” acted “expeditiously” in resolving the administrative burdens of making partial payments nor ensured that such payments were actually disbursed by Nov. 5. “Far from being expeditious, the record suggests quite the opposite. As of the date of this decision [Nov. 6], SNAP recipients still have not received their benefits,” Judge McConnell wrote, further rejecting the government’s assertion that there was nothing more it could do to act “expeditiously” as “carr[ying] no weight” (emphasis added). As the court described it:
“Even before this Court’s order was entered, the Defendants were fully aware of the delay and potential errors that such a partial payment would involve … [T]he Defendants ‘could have begun working to resolve the administrative hurdles once the lapse in appropriations occurred, or even before.’ … This plainly makes clear that this is a problem that could have been avoided. The Defendants knew that, at the time they chose Option 1, they would be prolonging implementation and frustrating the very purpose of the TRO … They instead proceeded, fully aware that Option 2 provided a faster and more practical means of compliance.” (citations omitted) (emphasis added)
Judge McConnell observed that the President had “stated his intent to defy the Court’s order” on social media and found the government’s noncompliance inexcusable, emphasizing that “compliance is achieved when Americans are fed.” The court concluded:
“[T]he Defendants have undermined both the intent and the effectiveness of this Court’s October 31st oral order and its November 1st written order that the Defendants act ‘expeditiously.’ … The Court is not inclined to excuse this noncompliance, particularly where the obstacles the Defendants now invoke are the foreseeable result of their own choices.” (citations omitted) (emphasis added)
Further, the court granted plaintiffs’ motion for a new TRO on the basis that the government had not complied with the prior TRO’s requirement that any decision not to provide full SNAP payments be made in accordance with the APA and not be arbitrary or capricious: “The Court has already determined that irreparable harm is substantially likely to occur—harm that only increased due to the Defendants’ failure to comply with the Court’s prior order,” Judge McConnell said (emphasis added).
On Nov. 9, the First Circuit denied the government’s motion to stay the enforcement portion of Judge McConnell’s Nov. 6 order, holding that the government had not met the stay factors—particularly its burden to show a likelihood of success in challenging the district court’s noncompliance determination. The panel noted that the record showed USDA knew early on that partial payments would be technically difficult and took no preparatory steps, and further observed that the government’s briefing failed to meaningfully address the district court’s finding that it was aware partial payments would not satisfy the TRO’s requirements. At the same time, the court stayed the separate Nov. 6 TRO “so long as” the enforcement order remains in effect.
(On Nov. 7, the Supreme Court entered an administrative stay of the Oct. 31 and Nov. 6 orders, and later extended the stay. On Nov. 13, after the government shutdown ended, the government withdrew its request for a stay in the Supreme Court, with the Solicitor General explaining that the bill ending the shutdown “fully funds SNAP through the end of the fiscal year.” The defendants also filed a notice advising the district court that Congress had restored full FY 2026 SNAP funding and that USDA had directed state agencies to “take immediate steps to ensure households receive their full November allotments promptly.”)
25. USDA’s Nov. 8 SNAP payment letter was “carefully crafted to feign compliance with” TRO
Judge Indira Talwani (Obama appointee), Commonwealth of Massachusetts v. United States Department of Agriculture, 1:25-cv-13165 (D. Mass.)
This case involves a challenge to the suspension of November 2025 SNAP benefits by the U.S. Department of Agriculture (USDA), allegedly as a result of the government shutdown that began Oct. 1, 2025.
On Nov. 12, in granting a temporary restraining order directing USDA to ensure prompt November SNAP payments, Judge Talwani found that USDA had “confused the record” by issuing—and never rescinding—a Nov. 7 notice stating that USDA’s Food and Nutrition Service (FNS) was “working towards implementing November 2025 full benefit issuances in compliance with the November 6, 2025 order” and that “[l]ater today, FNS will complete the processes necessary to make funds available to support your subsequent transmittal of full issuance files to your EBT processor.” Judge Talwani added, “Indeed, in retrospect, it appears that the statement was carefully crafted to feign compliance with” the TRO Judge McConnell issued in Rhode Island State Council of Churches v. Rollins, 1:25-cv-00569 (D.R.I.) (emphasis added).
(On Nov. 13, after the government shutdown ended, the defendants filed notices advising that Congress had restored full FY 2026 SNAP funding and that USDA had directed state agencies to “take immediate steps to ensure households receive their full November allotments promptly.”)
26. “Numerous, consistent declarations” of ICE noncompliance with TRO on attorney access for immigration raid detainees held in Los Angeles’ “B-18” basement
Judge Maame Ewusi-Mensah Frimpong (Biden appointee), Pedro Vasquez Perdomo v. Noem, 2:25-cv-05605 (C.D. Cal.)
This case involves a class action brought on behalf of five individuals detained in the basement of 300 North Los Angeles Street, known as “B-18,” as part of immigration-raid tactics in Los Angeles, alleging intimidation, violence and anonymity, racial profiling, warrantless arrests, denial of counsel, and inhumane conditions of detainment.
On Jul. 11, Judge Frimpong granted a temporary restraining order, finding the plaintiffs were likely to succeed on their Fifth Amendment claims. The TRO required Defendants to permit legal visitation at B-18 “seven days per week, for a minimum of eight hours per day on business days (Monday through Friday), and a minimum of four hours per day on weekends and holidays,” and to provide “individuals detained at B-18 with access to confidential telephone calls with attorneys, legal representatives, and legal assistants at no charge to the detainee.” The Court further ordered that when “exigent circumstances require closure for the safety of human life or the protection of property, the Defendants must notify Access/Detention Plaintiffs as soon as practicable and certainly within four (4) hours to make alternative arrangements for legal visitation and/or notice to affected detainees and attorneys, legal representatives, and legal assistants.”
On Nov. 13, granting a preliminary injunction, Judge Frimpong found extensive, ongoing violations of the TRO, emphasizing that “Plaintiffs have provided numerous, consistent declarations about specific statements and events that show Access/Detention Plaintiffs are still regularly being denied access to detainees such that Access/Detention Plaintiffs are unable to effectively provide meaningful legal services to the detainees.” She wrote that “lawyer visiting hours have been closed down repeatedly without letting lawyers know,” contrary to the TRO; that “officers insist on keeping the door open during lawyer visits;” that “officers sometimes will not let lawyers meet with clients;” and that individuals in B-18 are not receiving the “free, confidential phone calls with their lawyers” that the government itself says are required. At times, detainees were moved “to another location which does not allow lawyer visits at all.” The court reiterated: “once again, the Court is ordering the federal government to stop—this time for the rest of this lawsuit” (emphasis added).
Judge Frimpong further found by a preponderance of the evidence that the government had repeatedly violated the TRO by: closing B-18 “without explanation” on four occasions; providing “no notice” of closures on at least three occasions; failing to provide facilities that “allow for meaningful private communication;” and “prevent[ing] detainees from meeting “prospective clients.” The government also “moved detainees between B-18 and Santa Ana … without notice,” hindering attorney-client visitation when counsel could not locate clients.
The court emphasized that the government “continue to refuse” attorney access during regular hours, provided only “partial compliance,” and that “Defendants still are not fully in compliance with the TRO Order” (emphasis added). The court also stated that the administration “only started providing such notice after” plaintiffs filed the preliminary injunction motion, allowing the court to infer that compliance was “encouraged” by the motion, and that “a preliminary injunction may be necessary to ensure Defendants continue to provide detainees the protections stated in the TRO Order.”
Chapter 2. Court Distrust of Government Information and Representations
Introduction
A core aspect of executive officials “properly discharg[ing] their official duties,” and thus being entitled to a presumption of regularity, is those officials telling judges the truth. Accordingly, if the government evinces an extensive inability to provide courts with accurate explanations and truthful information, the application of the presumption accordingly loses the basis for its support. In this Chapter, we document over 60 cases in which courts have identified serious defects in the government’s explanations and representations—pretextual rationales (including retaliatory motives masked by pretext), false sworn statements, contradictions with the record, refusals or inability to answer basic questions, and litigation-driven “contrivances”—prompting judges to discount government submissions, compel expedited discovery, and withhold the presumption.
A. General
1-a. “Obscur[ing] from the Court” and “refusing to provide any helpful information” while “rapidly dispatching removal flights”
Chief Judge James Boasberg (W. Bush appointee; Obama appointee), J.G.G. v. Trump, 1:25-cv-00766 (D.D.C.)
This case involves the Trump administration’s invocation of the Alien Enemies Act to deport alleged members of the Venezuelan Tren de Aragua gang.
On Apr. 3, Judge Boasberg repeatedly asked the government’s counsel for information on the flights the administration was using to transport alleged gang members to El Salvador, and was told that the DOJ had no additional information. In an Apr. 16 memorandum opinion finding probable cause for criminal contempt, Boasberg wrote that he believed “that the Government might be rapidly dispatching removal flights in an apparent effort to evade judicial review while also refusing to provide any helpful information.” He added, “Those later-discovered flight movements, however, were obscured from the Court when the hearing resumed shortly after 6:00 p.m. because the Government surprisingly represented that it still had no flight details to share.”
1-b. “[M]indful of the possibility … that the Government has adopted and presented its arrangement with El Salvador as a ‘ruse — and a fraud on the court’”
Chief Judge James E. Boasberg (Bush appointee; Obama appointee), J.G.G. v. Trump, 1:25-cv-00766 (D.D.C.)
The case involved the Trump administration’s invocation of the Alien Enemies Act to deport alleged members of the Venezuelan Tren de Aragua gang.
In a Jun. 4 preliminary injunction, Judge Boasberg held that the plaintiffs had not yet provided “robust evidence” disproving the government’s claim that El Salvador was responsible for the CECOT detainees, but he nevertheless expressed serious doubt about the Government’s account and the consistency of its representations.
“[t]he Court must therefore at this point accept the Government’s representations as to the nature of the CECOT Plaintiffs’ ongoing detention, despite their incongruity with multiple public statements made by both Salvadoran and U.S. officials …
The Court is nonetheless mindful of the possibility, raised by Plaintiffs, that the Government has adopted and presented its arrangement with El Salvador as a ‘ruse — and a fraud on the court — designed to maintain control over the detainees beyond the reach of the writ.’ …
The Court nonetheless reminds the Government that any official who makes knowingly false statements in a sworn declaration subjects himself to perjury prosecution.” (citation omitted) (emphasis added).
2. Placing attorney on leave for his compliance with “the duty of candor to the court”
Judge Stephanie Thacker (Obama appointee), Judge Robert King (Clinton appointee), Abrego Garcia v. Noem, 25-1345 (4th Cir.)
This case challenged the Trump administration’s acknowledged wrongful removal of Kilmar Abrego Garcia to El Salvador.
In an Apr. 7 order, the Fourth Circuit noted that the government attorney in the district court hearings, in accordance with his duty of candor to the court, acknowledged parts of the administrative record not in the government’s favor, but, as a result, the Justice Department placed him on administrative leave.
“Consistent with this reality, the Government attorney appearing before the district court at the April 4 hearing candidly admitted that no order of removal is part of the record in this case,” the Fourth Circuit wrote. The judges also noted that the Government attorney conceded, consistent with an ICE official’s Declaration, that Abrego Garcia should not have been removed from the United States due to a immigration court order prohibiting his transfer to El Salvador.
The Fourth Circuit made an unusual statement in writing: “in response to the candid responses by the Government attorney to the district court’s inquiry, that attorney has been put on administrative leave, ostensibly for lack of ‘zealous[] advocacy.’ . . . But, the duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations, and the duty to uphold the rule of law, particularly on the part of a Government attorney.”
3. Providing “highly misleading, if not intentionally false” sworn declaration to the court; “so disingenuous that the Court is left with little confidence that the defense can be trusted to tell the truth about anything”
Judge Amy Berman Jackson (Obama appointee), National Treasury Employees Union v. Vought, 1:25-cv-00381 (D.D.C.)
This case involves the Trump administration’s efforts to dismantle the Consumer Financial Protection Bureau.
In a March 28 opinion granting a preliminary injunction, Judge Jackson scolded the government for a false sworn declaration:
“This rosy depiction of events, designed to assuage the Court, was accompanied by the February 24, 2025 Declaration of Adam Martinez, the Chief Operating Officer of the CFPB, First Martinez Decl., which was a carefully worded and highly selective account that was immediately contradicted by a second series of declarations and exhibits submitted by the plaintiffs. The defendants’ witness was then placed in the awkward position of submitting another declaration, in which he acknowledged the accuracy of the facts set forth by plaintiffs’ declarants, including their accounts of his own statements, but he still voiced the assurance that the agency was complying with its statutory obligations.” (emphasis added).
Jackson concluded:
“It is now clear to the Court that the omissions from the first declaration rendered it to be highly misleading, if not intentionally false. Defendants’ initial effort to persuade the Court in their opposition that employees were hard at work on their statutory duties even after they were ordered to stand down on February 10 has been shown to be unreliable and inconsistent with the agency’s own contemporaneous records, and the defendants’ eleventh hour attempt to suggest immediately before the hearing that the stop work order was not really a stop work order at all was so disingenuous that the Court is left with little confidence that the defense can be trusted to tell the truth about anything.” (emphasis added).
4. “Defendants’ plea for a presumption of good faith rings hollow when their own actions contradict their representations.”
Judge Loren L. Alikhan (Biden appointee), National Council of Nonprofits v. Office of Management and Budget, 1:25-cv-00239-LLA (D.D.C.)
This case involves a memorandum from the Office of Management and Budget (OMB) requiring federal agencies to pause any activities implicated by executive orders.
On Feb. 3, Judge Alikhan granted a temporary restraining order enjoining the administration from implementing the directives in the OMB memorandum and requiring the administration to provide written notice to all relevant agencies. In the order, stated:
“Defendants claim that they have ended any allegedly unlawful activity by retracting memorandum M-25-13. Even taking the rescission at face value, however, Defendants have not convincingly shown that they will refrain from “resum[ing] the challenged activity” in the future. As evidenced by the White House Press Secretary’s statements, OMB and the various agencies it communicates with appear committed to restricting federal funding. If Defendants retracted the memorandum in name only while continuing to execute its directives, it is far from ‘absolutely clear’ that the conduct is gone for good. …
Defendants … protest that such a conclusion ‘would be contrary to the presumption of good faith that courts routinely accord the government when assessing voluntary cessation.’… Here, Defendants’ plea for a presumption of good faith rings hollow when their own actions contradict their representations.”
5. Providing false sworn declarations about “hotly contested” material fact; “The Court was given false information, upon which it relied, twice, to the detriment of a party at risk of serious and irreparable harm.”
Judge Brian E. Murphy (Biden appointee), D.V.D. v. U.S. Department of Homeland Security, 1:25-cv-10676 (D. Mass.)
This case involved, inter alia, the removal of O.C.G., a Guatemalan national, to Mexico without a “meaningful opportunity” to raise a fear-of-torture claim.
In opposing plaintiffs’ request for emergency relief, DOJ submitted a sworn declaration by an assistant field office director for ICE’s Phoenix Enforcement and Removal Operations (ERO), stating that on or about Feb. 21—just prior to O.C.G.’s removal—ERO officers verbally asked whether he feared return to Mexico, and that O.C.G. “stated he was not afraid.” DOJ counsel repeated this claim in briefing opposing the motion for a preliminary injunction. As a result, in its Apr. 18 order, the court declined to direct O.C.G.’s return—citing a “hotly contested” factual dispute between the government’s “hearsay” declaration and O.C.G.’s sworn account (that he was never asked and begged to speak to his attorney)—and ordered expedited discovery.
However, on May 16, 2025—during the course of that discovery, and just hours before the ICE official who submitted the declaration was scheduled to be deposed—DOJ filed a “Notice of Errata” retracting the declaration and admitting that it could not “identify any officer who asked O.C.G. whether he had a fear of return to Mexico[, nor could it identify] the officer who O.C.G. states ‘told [him] that he was being deported to Mexico.’” The government acknowledged that its prior misrepresentation was based not on direct communication but on a data entry in ICE’s ENFORCE Alien Removal Module database.
In its May 23, 2025 order granting a preliminary injunction directing the government to “take all immediate steps … to facilitate the return of O.C.G. to the United States,” the court censured the Government in strong terms: “Finally, it must be said that, while mistakes obviously happen, the events leading up to this decision are troubling. The Court was given false information, upon which it relied, twice, to the detriment of a party at risk of serious and irreparable harm” (emphasis added).
(O.C.G. was subsequently able to return to the United States.)
6. Providing the court with “the sorriest statement I’ve ever seen;” “This is a terrible, terrible affidavit. If this were before me in a criminal case and you were asking to get a warrant issue on this, I’d throw you out of my chambers.”
Judge Leonie M. Brinkema (Clinton appointee), Sanchez Puentes v. Charles, 1:25-cv-00509 (E.D. Va.)
The case involved a habeas challenge by a Venezuelan couple, whom ICE detained in March 2025 (while they held Temporary Protected Status) based on allegations that they were members of Tren de Aragua.
At a Mar. 28, 2025 hearing granting the petition for a writ of habeas corpus, Judge Brinkema criticized the affidavit of an ICE assistant director—the government’s only evidence offered to justify detention on the basis that the couple were alleged Tren de Aragua members—stating:
“[I]t is the sorriest statement I’ve ever seen. First of all, it’s pure hearsay. … This is a terrible, terrible affidavit. If this were before me in a criminal case and you were asking to get a warrant issue on this, I’d throw you out of my chambers. No agent should do this type of editorializing, not when people’s liberty is at stake. I expect more from the government than this kind of very shoddy work. This is assumptions and putting words in people’s mouths. … I was shocked when I saw it.” (emphasis added).
7. “This Court takes clear offense to Respondents wasting judicial resources to admit to the Court it has no evidence;” “contradict[ing] themselves throughout the entire record;” providing “shoddy affidavits and contradictory testimony.”
Judge David Briones (Clinton appointee), Sanchez Puentes v. Garite, 3:25-cv-00127 (W.D. Tex.)
This case also involves a habeas corpus challenge by a Venezuelan couple whom the government alleged to be Tren de Aragua members.
On Apr. 21, denying the government’s motion to extend time to respond to the petitioners’ amended petition for a writ of habeas corpus, Judge Briones said:
“To date, Respondents have not provided this Court with a single reason as to why Petitioners have been designated as Alien Enemies. To date, Respondents have not provided this Court with a single reason as to whether Petitioners’ ‘circumstances have materially change[d]’ which would warrant rearrest and incarceration by ICE. To date, Respondents have not provided the Court with any information that would be materially helpful in determining whether Petitioners are being unlawfully detained in violation of their TPS protections during the appeal period. Respondents have known about the instant habeas petition for at least six days. Respondents could have filed their response, which was due on April 21, 2025, providing the Court with even a reason or two as two (sic) why Petitioners’ habeas petition should be denied, while also requesting an extension of time, but rather than putting in the slightest bit of effort, Respondents instead just asked for more time. To date, Respondents have not provided the Court with anything useful.”
On Apr. 25, granting the petitioners petition for amended petition for a writ of habeas corpus, Judge Briones wrote:
“Respondents declare, without providing this Court with a single piece of meaningful evidence, that ‘Petitioners are members of Tren de Aragua.’ … Of great concern to this Court is that Respondents contradict themselves throughout the entire record. … [T]he April 23, 2025 Habeas Corpus hearing in this Court, Respondents and the Government based the entirety of their case on multiple levels of hearsay, hidden within declarations of declarants who have no personal knowledge about the facts they are attesting to. … What is astonishing is that these declarants cannot even so much as identify what government official did receive the alleged information directly. Respondents ask this Court to accept their claims, going off of nearly nothing, to substantiate their mammoth claims. … The Court would not accept this evidence even in a case where only nominal damages were at stake, let alone what is at stake here. Beyond these shoddy affidavits and contradictory testimony, Respondents haven’t provided ‘membership’ at all as it relates to Petitioner Sanchez Garcia … This Court takes clear offense to Respondents wasting judicial resources to admit to the Court it has no evidence, yet seek to have this Court determine Petitioner Sanchez Puentes is ‘guilty by association.’ This Court found no need to even allow closing arguments as to Petitioner Sanchez Puentes at the April 23, 2025 Habeas Corpus Hearing. … It is this Court’s finding that Respondents’ Response and testimony was replete with conclusions, declarations, and accusations, completely and wholly unsubstantiated by anything meaningful in the record.” (emphasis added).
8-a. Solicitor General providing inaccurate information to the U.S. Supreme Court
Judge Susan Illston (Clinton appointee), American Federation of Government Employees, AFL-CIO v. Trump, 3:25-cv-03698 (N.D. Cal.)
The case involved a challenge to the administration’s reductions in force across several departments and agencies.
On Jul. 28, in an unusual step, the district court judge submitted a statement to the Ninth Circuit explaining that the U.S. Solicitor General had presented overstated figures to the U.S. Supreme Court in a stay application in the litigation. The government had claimed that the district court injunction prohibiting reductions in force of government employees included several agencies and positions that were not actually subject to the injunction. Judge Illston called the discrepancy “not insignificant,” and said it underscored the need for accurate fact-finding overriding any deliberative-process privilege.
8-b. Government submitted “underinclusive” RIF figures in response to the court’s order; three declarations claiming months of background work on potential RIF plans were deemed contrary to the “factual record”
Judge Susan Illston (Clinton appointee), American Federation of Government Employees, AFL-CIO v. Trump, 3:25-cv-03698 (N.D. Cal.) and American Federation of Government Employees, AFL CIO v. United States Office of Management and Budget, 3:25-cv-08302 (N.D. Cal.) (related cases)
These related cases involve challenges to the administration’s reductions in force (RIFs) of federal employees across several departments and agencies, including RIFs planned in connection with the government shutdown.
Following Judge Illston’s Oct. 15 temporary restraining order (modified on Oct. 17 and Oct. 22), which addressed OMB’s Sept. 24 “Lapse Memorandum” and OPM’s Sept. 28 shutdown guidance and directed defendants to file “an accounting of all RIFs, actual or imminent, that are enjoined by this TRO,” the government submitted agency declarations on Oct. 17. Granting a preliminary injunction on Oct. 28, Judge Illston observed that “[t]he full scope of the RIFs that have been planned or administered remains unclear based on the declarations defendants have filed.” She further explained that the agency declarations “generally do not describe other RIFs planned or administered by the defendant agencies and they do not account for the ‘north of 10,000’ people OMB Director Vought stated on Oct. 15 that he expected would be RIF’d during the shutdown.” Accordingly, the court concluded that “the figures provided below are likely underinclusive of the total number of RIFs that have been planned or administered in response to the shutdown” (emphasis added). Further, the court dismissed the government’s claim, repeated in three separate declarations, that it had spent months developing potential RIF plans, explaining that “the factual record reveals otherwise.” Judge Illston wrote:
“Finally, defendants state that the factual record refutes plaintiffs’ contention that RIFs were unduly hasty. … The Court does not agree. … Instead, here agencies are rapidly laying off thousands of public employees during a temporary lapse in funding. Defendants argue that they took sufficient time considering whether to administer RIFs, citing three agency declarations that state they have been working on potential RIF plans for months. … The factual record reveals otherwise. RIF notices are going out with errors in them; they are being sent to employees’ work e-mail addresses, which furloughed employees have been told they may not check; they are being issued in error and rescinded shortly after; they are being issued by Human Resources staff called back to work on RIFs and then ordered to RIF themselves. … In sum, it has been a tumultuous process pervaded by errors and uncertainty.” (citations omitted) (emphasis added).
9. “Flip-flopping—in sworn declarations—rais[ing] severe concern,” “consistently refused to give … the full story,” providing “cagey answers,” “omitting key information,” and “repeated[ ] represent[ations]” that “strain credulity.”
Judge Royce C. Lamberth (Reagan appointee), Abramowitz. v. Lake,1:25-cv-00887 (D.D.C.) and Widakuswara. v. Lake, 1:25-cv-01015 (D.D.C.) (related cases)
These cases involve the dismantling of the U.S. Agency for Global Media and the firing of journalists from the Voice of America (VOA) media outlet.
In a Jul. 30 show-cause order addressing both cases, Judge Lamberth wrote that the government had
“consistently refused to give the Court the full story regarding personnel actions. … the defendants continue to provide cagey answers and omit key information. … And perhaps more shockingly, on July 8—the day this Court ordered a second round of supplemental briefing, and a full ten days before the defendants filed the second supplemental memorandum—the defendants informed Plaintiff Michael Abramowitz that he would be removed from his position as Director of VOA. … However, the defendants made no mention of this monumental personnel decision in their filings to this Court.” (emphasis added).
Lamberth further wrote that the government was
“providing misleading and contradictory information … The defendants’ descriptions of their activities are cryptic and even misleading … And troublingly, the crumbs of data provided suggest the defendants are ignoring several statutory mandates. … [T]he defendants have also made contradictory representations to the Court. … This sort of flip-flopping—in sworn declarations— raises severe concern and provides yet another basis for entering a show cause order for the defendants to provide a truthful, accurate, and detailed plan regarding VOA’s ongoing operations.”
In a Sept. 29 memorandum order addressing enforcement of the Apr. 22 PI, Judge Lamberth wrote that defendants and DOJ counsel “repeatedly represented”—both on paper and at the Aug. 25 hearing—that any reduction in force (RIF) was only a “possibility” and subject to “uncertainty.” Given what followed, he concluded those representations “strain credulity.”
10. “The ‘administrative record’ submitted by the government is a sham. It does not facilitate judicial review: It frustrates it;” judge calls out government for “lie” in termination letters, and for DOJ preventing testimony because “afraid … would reveal the truth”
Judge William Alsup (Clinton appointee) American Federation of Government Employees, AFL-CIO v. United States Office of Personnel Management, 3:25-cv-01780 (N.D. Cal.)
This case involves the government’s efforts to significantly reduce the federal workforce’s probationary employees via termination letters that criticized workers’ “performance.”
In a Mar. 13 hearing in which Judge Alsup issued an injunction from the bench, the court criticized the administration, calling the letters a “gimmick” and saying, “It is sad – a sad day – when our government would fire some good employee and say it was based on performance when they know good and well that’s a lie. … That should not have been done in our country. It was a sham in order to try to avoid statutory requirements.” In a subsequent memorandum opinion, the court elaborated that the OPM’s template termination letter claiming performance problems “was an obvious pretext intended to obstruct appeal and avoid statutory and regulatory reduction-in-force procedures (for example, the honoring of veteran preferences in the order of retention).” At the Mar. 13 hearing, responding to the government’s apparent gamesmanship—namely, submitting OPM Acting Director Charles Ezell’s sworn declaration that asserted OPM did not direct the firings, then withdrawing it and refusing to produce him for court-ordered cross-examination—Judge Alsup admonished DOJ, saying, “You can’t just say, ‘Here’s the declaration. You have to accept it without question’ whenever there is a question.” He continued:
“You will not bring the people in here to be cross-examined. You’re afraid to do so because you know cross-examination would reveal the truth. … This is the U.S. District Court. Whenever you submit declarations, those people should be submitted to cross-examination, just like the plaintiffs’ side should be. … [T]hen we get at the truth of whether that’s what — your story is actually true. I tend to doubt it. I tend to doubt that you’re telling me the truth whenever we hear all the evidence eventually. … And you withdrew his declaration rather than do that? Come on. That’s a sham. Go ahead. I’m — it upsets me. I want you to know that. I’ve been practicing or serving in this court for over 50 years, and I know how we get at the truth. And you’re not helping me get at the truth. You’re giving me press releases, sham documents. All right. I’m getting mad at you and I shouldn’t. You’re trying to do your best, and I apologize.” (emphasis added).
On Sept. 12, the district court granted summary judgment to the plaintiffs. The court wrote:
“The ‘administrative record’ submitted by the government is a sham. It does not facilitate judicial review: It frustrates it. …
The ‘quote’ proffered by government counsel James D. Todd Jr. is a fabrication. … The result: A statement concerning OPM authored and approved exemption categories becomes, by brackets, ellipses, and government counsel’s chicanery, a shot through the heart of plaintiffs’ case. Counsel’s ersatz evidence fails to persuade.” (emphasis added).
11-a. Military experts’ summaries “cherry-picked,” “mischaracterized,” and “misrepresented” multiple studies to support the military’s transgender ban: one summary was “inexplicably misleading,” another not drawn “in good faith”
Judge Ana Reyes (Biden appointee), Talbott v. Trump, 1:25-cv-00240 (D.D.C.)
The case involved the Trump administration’s efforts to ban transgender people from serving in the U.S. military, and to dishonorably discharge currently serving transgender service members.
During a March hearing, Judge Reyes pressed government counsel on the military’s transgender ban, repeatedly questioning whether the military experts behind the policy had “cherry-picked” and “mischaracterized” the underlying studies and reports cited in support, had “grossly, misleadingly—whether intentionally or unintentionally—mischaracterized” them, or had “grossly misquote[d] and misuse[d]” portions of those materials. For example, she criticized how the Justice Department invoked a 2021 AMSARA report, a Department of Defense accession research study that appeared in DoD’s own Action Memo but did not support the government’s asserted justifications. Judge Reyes asked DOJ counsel, “Should I defer to the military experts who cherry-picked one part of this study, misrepresented even that and ignored the rest of it, and ignored the obvious import of it?” (emphasis added). She noted the study was actually used to support the Biden-era policy of including transgender personnel. Judge Reyes further said that “the two things that were quoted in the Hegseth policy were taken way out of context and mischaracterized even in the quotations that they had.”
During the hearing, Judge Reyes also expressed disbelief that government counsel had not read any of three key reports the Hegseth policy cited.
“THE COURT: Okay. Have you not read that report?
MR. MANION: I have not, Your Honor.
THE COURT: So my clerk, Guillermo, and I had a conversation on Monday, because I had said, you know what, we should send out a minute order saying that I want counsel to be prepared to discuss the Mattis policy, the AMSARA report, and the 2025 Literature review. And there were a couple other things that we wanted you to be able to answer. And we looked at each other on Monday and was like we don’t have to do that. Of course they’re going to be prepared. The Hegseth policy cites three reports, I mean, of course, they’re going to know what those reports are. But you don’t — you didn’t read the reports.
MR. MANION: I have not, Your Honor.
THE COURT: Okay. Do you think it’s important, when the Court is reviewing the only three reports that the Hegseth policy cites, to understand whether those reports actually say what the Hegseth policy quoted?” (emphasis added).
In a Mar. 18 preliminary injunction, Judge Reyes further underscored the government’s Action Memo had misrepresented several studies to justify the transgender military ban. The court said its summary of the AMSARA report was “inexplicably misleading,” since the data actually showed transgender troops performing “similar or better” in 10 of 11 categories (emphasis added). Likewise, its summary of the 2025 Medical Literature Review was so distorted that “no one summarizing the Review in good faith could draw these conclusions” (emphasis added). On cost, the court rejected reliance on a bare number “devoid of any context or analysis,” warning that if such reasoning were accepted “courts would have to accept any cost amount the military cites to justify any policy.”
Judge Reyes also refused to “blindly” defer to military judgment, writing:
“Yes, the Court must defer. But not blindly. The President issued EO14183 within seven days of taking office, and Secretary Hegseth issued the Policy thirty days later. There is no evidence that they consulted with uniformed military leaders before doing so. Neither document contains any analysis nor cites any data. They pronounce that transgender persons are not honorable, truthful, or disciplined—but Defense counsel concedes that these assertions are pure conjecture.” (emphasis added)
11-b. DOJ counsel in transgender military ban warned for treating the judge “like… an idiot” and attempting to “gasli[ght]” her
Judge Ana Reyes (Biden appointee), Talbott v. Trump, 1:25-cv-00240 (D.D.C.)
The case involved the Trump administration’s efforts to ban transgender people from serving in the U.S. military, and to dishonorably discharge currently serving transgender service members.
During a Mar. 21 hearing, Judge Reyes reportedly admonished government counsel for asserting that the ban was focused on people with gender dysphoria, stating: “I am not going to abide by government officials saying one thing to the public—what they really mean to the public—and coming in here to the court and telling me something different, like I’m an idiot,” emphasizing, “I am not an idiot” She reportedly said, “The idea that you all can just come in here and pretend that what’s happening isn’t actually happening is totally unacceptable,” in addition to saying, “The court is not going to be gaslit” (emphasis added).
12. Providing false and incomplete information concerning DOGE’s leadership and authorities
Judge Theodore D. Chuang (Obama appointee), J. Doe 4 v. Musk, 8:25-cv-00462 (D. Md)
Judge Tanya Chutkan (Obama appointee), New Mexico v. Musk, 1:25-cv-00429 (D.D.C.)
Judge Kollar-Kotelly (Reagan appointee; Clinton appointee), Alliance for Retired Americans v. Bessent, 1:25-cv-00313 (D.D.C.)
These cases involve challenges to DOGE’s activities and, at the time, Elon Musk’s constitutional authority. Across different cases, judges critiqued the Trump administration for its failure to provide straightforward answers regarding DOGE’s leadership and authority.
Feb 17: False claim that Musk was not head of DOGE, and false claim that DOGE did not have authority over personnel actions:
On Feb. 17, Joshua Fisher, the Director of the White House Office of Administration, stated in a sworn declaration in New Mexico v. Musk that Elon Musk was a Senior Advisor to the President and was not employed by or the administrator of DOGE. Fisher also stated that Musk’s role gave him “no actual or formal authority to make government decisions himself. Mr. Musk can only advise the President and communicate the President’s directives.” In an accompanying notice, the Department of Justice asserted that they were “not aware of any source of legal authority granting” DOGE “the power to order personnel actions at any of the agencies” in question, and that “[n]either of the President’s Executive Orders regarding ‘DOGE’ contemplate—much less furnish—such authority.”
In a Feb. 18 opinion denying a motion for a temporary restraining order against DOGE, Judge Tanya Chutkan implicitly rejected Fisher’s declaration, noting that “Elon Musk directs the work of DOGE personnel but is formally classified as a ‘special government employee.’” In a footnote, Chutkan further wrote that the “plain text” of the DOGE Executive Orders “‘contemplates’ DOGE’s authority over personnel actions. Defense counsel is reminded of their duty to make truthful representations to the court” (emphasis added).
In a separate case, Judge Theodore D. Chuang would also go on to more directly reject the Fisher sworn declaration in favor of the plaintiffs’ evidence finding that “Musk was, at a minimum, likely the official performing the duties and functions of the USDS Administrator.”
Feb. 24: Inability or refusal to inform court who was head of DOGE at the time:
On Feb. 24, Judge Colleen Kollar-Kotelly repeatedly asked Justice Department attorney Bradley Humphreys who was the head of DOGE while it was a component of the Office of Management and Budget and whether that person was a Schedule C government employee. Humphreys repeatedly said that he did not know the answer. Humphreys also said that he could not answer what Musk’s role was in DOGE, who was the current administrator of DOGE, or even whether there was a person acting as DOGE administrator.
Feb 28: Inability or refusal to inform court who was head of DOGE before Gleason:
On Feb. 28, after the administration had identified Amy Gleason as the head of DOGE, Judge Theodore Chuang asked a government attorney to identify who had led DOGE before Gleason and to clarify Musk’s role with the government. The government attorney repeatedly said he could not answer Judge Chuang’s question.
Judge Chuang: Who was the head of DOGE before Amy Gleason?
Government counsel: I can’t answer that, I don’t know.
Judge Chuang: I mean, that seems like a knowable fact, doesn’t it?
Government counsel: I’m sure it is knowable; I just don’t know it. …
Judge Chuang: Have you asked anyone?
Government counsel: I have not asked …. Actually, strike that. I have asked previously, and I was not able to get [an] answer.
During the hearing, Judge Chuang said, “The plaintiffs are saying Musk was the head of DOGE. You’re saying he wasn’t, but we can’t tell you who was, which admittedly is highly suspicious . . . I’m not saying that you’re not being candid, but the whole operation raises questions.”
In a May 27 memorandum opinion denying the administration’s motion to dismiss charges against DOGE and Musk in New Mexico v. Musk, Judge Chutkan also rejected the government’s representations regarding DOGE’s leadership. In the order, Judge Chutkan wrote that the government had “unsuccessfully attempt[ed] to minimize Musk’s role, framing him as a mere advisor without any formal authority,” and that the “States have sufficiently pleaded that [Musk’s] position qualifies as ‘continuing and permanent, not occasional or temporary.”
13. Failing to “to offer any explanation, let alone one supported by the record;” court saying “can’t get a straight answer from you”
Judge Amir H. Ali (Biden appointee), AIDS Vaccine Advocacy Coalition v. U.S. Department of State, 1:25-cv-00400 (D.D.C.) and Global Health Council v. Trump, 1:25-cv-00402 (D.D.C.)
These cases involve the Trump administration’s freeze on Congressionally-allocated humanitarian assistance and other foreign aid. Following the court’s Feb. 13 TRO, Judge Ali voiced frustration at apparent noncompliance, telling the government: “I don’t know why I can’t get a straight answer from you.” In a Mar. memorandum opinion granting in part a preliminary injunction requiring the administration to pay for aid work already completed by contractors and foreign assistance groups, Judge Ali wrote that the government had “yet to offer any explanation, let alone one supported by the record, for why a blanket suspension . . . was a rational precursor to reviewing programs.” Ali wrote that the government had “not proffered any evidence” to support their assertion that waivers offered by the Department of State “provided any meaningful relief from the blanket freeze.
14. DOJ bid to seal the entire criminal case raised concerns of pretext; “High deference is out; trust, but verify is in.”
Judge Zia Faruqui (appointed by D.D.C.), In re: Search of One Device and Two Individuals, 25-sw-82 (D.D.C.)
This case involves efforts to unseal documents related to a search warrant for a defendant’s phone and cloud-based data.
In a May 29 order denying the government’s attempt to keep the entire case under seal, Judge Zia Faruqui doubted the government’s explanation (suggesting it was a pretext): “Given how weak the government’s argument of harm to the investigation is, the Court cannot help but ask if there are other reasons animating its request. Perhaps the government is embarrassed about trying to forcibly search an innocent [redaction] or having a warrant rejected given how rare that is?” Judge Faruqui also rejected the claim that courts should be highly deferential to the government’s determination that unsealing would impede the investigation, in which he wrote: “High deference is out; trust, but verify is in.”
The judge also doubted the government’s claim of urgency to search the individual’s phone: “On April 24, 2025, the government claimed there was great urgency surrounding its request to search [redacted] phone. But its actions reflect otherwise. Over a month has passed, and the government still has not filed an appeal of the May 6 Order denying the request to search [redacted] phone.”
15. Mischaracterizing the content of sealed grand jury documents in court filings
Paul Engelmayer (Obama appointee), United States v. Ghislaine Maxwell, 1:25-cv-00429 (D.D.C.)
This case involves the Trump administration’s efforts to unseal grand jury transcripts and exhibits in the case against Ghislaine Maxwell, who was convicted of five felonies stemming from her role in Jeffrey Epstein’s child sex trafficking conspiracy.
On Aug. 11, Judge Engelmayer denied the motion to unseal exhibits. In the opinion accompanying the order, Engelmayer wrote that the government’s “invocation of special circumstances” justifying unsealing the documents “fails at the threshold.” Engelmayer wrote that “[t]he Government’s submissions” supporting the motion “were telling” in that they “belied the Government’s claim, in its motion to unseal, that the Maxwell grand jury materials contained significant, undisclosed information about Epstein’s and Maxwell’s crimes, or the investigation into them.” Specifically, the submissions indicated that, contrary to the administration’s assertions, the grand juries “were not used for investigative purposes” and that the evidence before them “is today, with only very minor exceptions, a matter of public record.” Engelmayer concluded that, “[i]nsofar as the motion to unseal implies that the grand jury materials are an untapped mine lode of undisclosed information about Epstein or Maxwell or confederates, they definitively are not that,” and that someone seeking new information, as the government suggested, “would come away feeling disappointed and misled.”
Judge Engelmayer’s opinion suggested the victims may have been misled by the mischaracterization of the grand jury materials in the government’s motion to unseal:
“The victims’ interest in reviewing the grand jury materials appears to be premised on the understandable but mistaken belief that these materials would reveal new information. The Government had, after all, publicly portrayed these as ‘critical pieces of an important moment in our nation’s history.’ Motion to Unseal at 3. Had the Government’s motion made clear that these records are redundant of the evidence at Maxwell’s public trial, the victims’ responses to the motion to unseal might well have been different.” (citation omitted)
16. Making “patently incredible” claims; Government “switching arguments at will,” a “totally inconsistent” case; and Government witness “knows nothing … less than nothing”
Judge Paula Xinis (Obama appointee),Abrego Garcia v. Noem, 8:25-cv-00951 (D. Md.)
The case involved the administration’s admission that it unlawfully sent Kilmar Armando Abrego Garcia to El Salvador despite an immigration court order prohibiting removal to that country.
In a Jul. 23 memorandum opinion granting an emergency motion for an order directing the government to facilitate the plaintiff’s release from El Salvador, Judge Xinis said she had convened an evidentiary hearing to “get straight answers from the government,” but said that “when pressed for detail on the removal proceedings, counsel merely articulated what Defendants could do. Not what they would do,” and that although counsel said the government’s “present intent” was third-country removal, they could not identify “what third country,” insisting no decision would be made until Abrego García was in ICE custody, a stance she called “patently incredible.” With witness testimony offering only “minimal insight on the process” under the DHS memorandum, the court was “left with no meaningful information” and ordered production of the ICE detainer—which “raised more questions than it answered.” Judge Xinis cited the detainer’s claim of “ongoing removal proceedings” despite defendants’ admission there were none, calling the detainer “thin cover” for taking Abrego García into custody in Tennessee and transferring him elsewhere, and concluding it “confirmed” the government had no intention of returning him to supervision in Maryland to commence lawful proceedings.
Update 1 (Oct. 15, 2025):
During an Oct. 10 evidentiary hearing on the government’s asserted removal plans for García—including why the government had not pursued the Costa Rica option and whether it may continue detaining him—Judge Xinis signaled sharp distrust of the government’s information and representations. She reportedly observed that the government seemed to be “switching arguments at will” to prolong detention, producing a “totally inconsistent” case, and told DOJ lawyers: “You’re not even close… we’re getting to ‘three strikes and you’re out’” (emphasis added). She also reportedly faulted the government’s witness preparation and factual showing, noting she “had very specific directions for what that witness should be prepared to testify about.” Addressing DOJ counsel, she reportedly said: “You came here today with a witness who knows nothing about Costa Rica—I mean, less than nothing,” adding, “Help yourself dig out of this hole,” and, “This is a joke for anyone who’s listening” (emphasis added). The court also reportedly described as “very troubling” the government’s claim that Abrego told an immigration judge he feared persecution in Costa Rica, which was contradicted by the IJ’s record.
17. Providing an “explanation [that] is riddled with inconsistencies”
Judge Jeanette A. Vargas (Biden appointee), State of New York v. Trump, 25-cv-01144 (S.D.N.Y.)
This case involves a challenge to the Department of Government Efficiency (DOGE)’s authority to access Treasury Department systems containing personally identifiable and financial information.
Judge Vargas, granting a preliminary injunction, found DOJ counsel’s claim that the President’s Executive Orders required immediate DOGE access to Treasury’s BFS systems was “riddled with inconsistencies,” noting the E.O. itself allowed 30 days and the new, untrained DOGE hires were not needed to implement the pauses.
“When asked at the preliminary injunction hearing the reason for this accelerated process, counsel for the Government pointed to the urgency sparked by the President’s Executive Orders. PI Hearing Tr. at 18:20-19:14. This explanation is riddled with inconsistencies. … the Court finds this explanation lacks credibility … artificial sense of urgency engendered by the Government’s imposition of time limits on itself.” (emphasis added)
18. Making representation that “does not reflect the level of diligence the Court expects from any litigant—let alone the United States Department of Justice;” “The contradiction between [Government’s] factual representations and the facts on the ground is particularly striking.”
Judge Colleen Kollar-Kotelly (Clinton appointee), League of United Latin American Citizens v. Executive Office of The President, 1:25-cv-00946 (D.D.C.), Democratic National Committee v. Trump, 1:25-cv-00952 (D.D.C.), and League of Women Voters Education Fund v. Trump, 1:25-cv-00955 (D.D.C.) (consolidated cases)
These cases involve challenges by nonpartisan voting rights organizations and Democratic Party committees to President Trump’s Executive Order 14,248, including Section 2(a), which directs the Election Assistance Commission (EAC) to “take appropriate action” within 30 days to require “documentary proof of United States citizenship” on the national mail voter registration form and to have states record detailed information about the citizenship document used.
On Apr. 24, granting the plaintiffs’ motions for preliminary injunctions as to Section 2(a) of the EO, Judge Kollar-Kotelly rejected the government’s timing argument—what the court described as “a critical factual representation”—that the suits were premature because Section 2(a) “has not even begun to be implemented” and implementation “may never occur.” The argument was advanced in their oppositions, supported by a declaration from EAC Executive Director Brianna Schletz, and repeated by DOJ counsel at the hearing on the motion. The court explained that the record showed the opposite: three days before DOJ filed its oppositions, EAC Executive Director Brianna Schletz had sent a letter to state election officials quoting from Section 2 and asking how they would implement those requirements “if required,” thereby confirming that the EAC had already begun acting on Section 2(a). As the court wrote:
“The letter reveals that—contrary to Defendants’ representations to the Court—the EAC has, in fact, already begun to implement Section 2(a). The letter further reveals that—contrary to Defendants’ arguments in their Oppositions—the EAC is not interpreting Section 2(a) as an open-ended suggestion to consider including a documentary-proof-of-citizenship requirement of an unknown form. Instead, the EAC, like the Court and Plaintiffs, reads Section 2(a) as an ‘instruction’ to adopt the precise documentary-proof-of-citizenship requirement outlined in the Executive Order.” (emphasis added).
Notably, the court criticized Executive Director Schletz’s declaration and DOJ’s diligence, writing:
“The contradiction between Defendants’ factual representations and the facts on the ground is particularly striking because Executive Director Schletz authored a declaration supporting Defendants’ Oppositions that was filed three days after she sent the letter to the States. … When pressed, counsel for Defendants asserted that he ‘had no knowledge of the letter.’ … Indeed, even after receiving a copy of the letter from Plaintiffs’ counsel, counsel for Defendants appeared to be operating under the ‘understanding that the letter is dated three days after we submitted our opposition.’ … When the Court explained to counsel that he had the dates exactly backwards, he replied: ‘Fair enough.’ … The Court is not currently of the mind that counsel for Defendants intentionally misrepresented the facts by failing to mention a letter authored by a declarant with whom he surely consulted. But the Court must remark that this exchange does not reflect the level of diligence the Court expects from any litigant—let alone the United States Department of Justice.” (citations omitted) (emphasis added)
19. Unrebutted claim that the government created a record as a “contrivance” to avert court ruling
Judge Stephanie A. Gallagher (Trump appointee) J.O.P. v. DHS, 8:19-cv-01944-SA (D.Md.)
Chief Judge Roger Gregory (W. Bush appointee) and Judge DeAndrea Gist Benjamin (Biden appointee), J.O.P. v. Dep’t of Homeland Security, 8:19-cv-01944 (4th Cir.)
The case involved an individual deported to El Salvador in alleged violation of a judicially-enforced agreement that prohibited unaccompanied minors’ removal from the United States prior to the final determination of their asylum claims.
On Apr. 23, Judge Stephanie Gallagher (Trump appointee) ordered the government to facilitate the return to the United States of “Cristian,” a pseudonymous member of the class covered by the agreement who had been deported to El Salvador. At the time, Gallagher wrote that “Defendants have provided no evidence, or even any specific allegations, as to how Cristian, or any other Class Member, poses a threat to public safety.”
On May 1, the United States Customs and Immigration Service (USCIS) produced an “Indicative Asylum Decision” asserting that, “if Cristian were returned to the United States, it would deny his asylum application based on (1) terrorist-related inadmissibility grounds . . . and (2) as a matter of discretion.” The Department of Justice presented the document to the court as demonstrating an “adjudication on the merits” that was the “precise relief” Cristian sought.
In a May 19 order denying the government’s motion for a stay of Gallagher’s order pending appeal, the Fourth Circuit noted that “the Indicative Asylum Decision—created five days after the district court’s facilitation order was issued—was not an authentic change in factual circumstances. Cristian contends that neither ‘USCIS regulation, policy, [n]or practice’ provides for ‘Indicative Asylum Decisions,’” and that the decision was “a ‘litigation-driven’ document—a ‘contrivance’ ‘created just for this case. The Government has no response to this charge—a deafening silence.”
20. Offering an “official justification … [that] is not plausible”
Judge Dabney L. Friedrich (Trump appointee), National Endowment for Democracy v. United States, 1:25-cv-00648 (D.D.C.)
The case involved the administration’s withholding congressionally appropriated funds from the National Endowment for Democracy (NED).
On Aug. 11, Judge Friedrich granted a preliminary injunction, finding that the plaintiff was likely to succeed on their APA claims, including that the government violated the NED Act:
“[R]ecord evidence clearly shows that the defendants are withholding funding for impermissible policy reasons. The State Department’s full-year spending plan—the sole document in the administrative record not created for purposes of this litigation—explicitly states that the withheld funds are being ‘subject to review for alignment with Administration priorities.’ … Around that time, the Director of OMB urged the Senate to entirely defund the Endowment because of its alleged support of media organizations critical of the President and his allies. … An affidavit from the Director of the Bureau of Budget Planning at the State Department highlights that the withholding decision was made ‘in consultation with OMB.’ … Taken as a whole, that evidence leaves little doubt as to the defendants’ motivations—the Endowment’s work does not align with ‘Administration priorities.’ …
The defendants’ official justification for that withholding—preserving the Endowment’s funding stability for the coming year—is not plausible. … These actions vitiate any inference that the defendants’ concern has been to “ensure” the Endowment’s “level of funding in the coming fiscal year.” … Indeed, counsel for the State Department provided that rationale to the Endowment for the first time in a June 11 email, well after this litigation began. … In light of the defendants’ repeated maneuvers to impede the Endowment’s flow of funds, the Court does not find credible an explanation offered in the shadow of pending litigation.” (citations omitted) (emphasis added).
21. Admission of making a false statement to the court
Judge Timothy James Kelly (Trump appointee), L.G.M.L v. Noem, 1:25-cv-02942 (D.D.C.)
This case involves the administration’s plan to repatriate more than 600 unaccompanied Guatemalan minors in custody of the Department of Health and Human Services.
On Aug. 31, Judge Sparkle L. Sooknanan (Biden appointee) issued a temporary restraining order blocking immediate removals after reports that children were being placed on planes over Labor Day weekend.
On Sept. 10, Judge Kelly held a preliminary injunction and class certification hearing. At that hearing, the government reportedly acknowledged it had no evidence to support earlier statements it had made that the children’s parents had requested their return and that those claims had been contradicted by a review by the Guatemalan government. (At a prior hearing, the DOJ attorney had told the court, “All of these children have parents or guardians in Guatemala who have requested their return.”) The DOJ attorney did not contest evidence raised by the plaintiff that the Guatemalan government had been unable to locate many of the children’s parents; and said the DOJ’s initial claims should be considered “withdrawn.”
22. ICE mask testimony deemed “disingenuous”
Judge William G. Young (Reagan appointee), American Association of University Professors v. Rubio 1:25-cv-10685 (D. Mass)
This case involves a challenge to the Trump administration’s deportation policy, under Executive Orders 14,161 and 14,188, which allegedly authorizes sweeping arrests, detentions, and deportations of noncitizen students and faculty participating in pro-Palestinian protests or related forms of expression and association.
On Sept. 30, following a nine-day bench trial, Judge Young held that the administration violated the First Amendment in efforts to deport non-citizens involved in pro-Palestinian campus protests. The court specifically addressed the government’s testimony—provided by defendant Todd Lyons, Acting Director of ICE, and by the masked ICE agents who seized student Mehmet Öztürk—which claimed that agents wore masks for legitimate operational and safety reasons. Judge Young wrote that the court “rejects this testimony as disingenuous, squalid and dishonorable” and found that ICE uses masks to intimidate people into “quiescence.”
23. ICE statistics “concealed more than they disclosed, despite the availability … of much more illuminating data” and “gives no confidence that the defendants are seriously interested in making a full disclosure”
Judge Lewis A. Kaplan (Clinton appointee), Barco Mercado v. Noem, 1:25-cv-06568 (S.D.N.Y.)
This case involves a class action, brought by a detainee at ICE’s 26 Federal Plaza, alleges overcrowding, inadequate medical care, and denial of access to counsel.
On Sept. 17, granting a preliminary injunction and provisionally certifying a Rule 23(b)(2) class of all immigration detainees held 12+ hours in ICE’s 26 Federal Plaza hold rooms, Judge Kaplan criticized the government’s evidentiary showings. The court wrote that declarations by the assistant field office director at ERO’s New York City field office, “in substantial measure avoided the thrust of plaintiff’s factual showing and offered unpersuasive statistics that concealed more than they disclosed despite the availability to defendants of much more illuminating data” (emphasis added). He added, “The response to the motions thus gives no confidence that the defendants are seriously interested in making a full disclosure of conditions in the 26 Fed Hold Rooms” (emphasis added).
24-a. President’s determination to federalize National Guard to Portland “simply untethered to the facts” and not “conceived in good faith”
Judge Karin J. Immergut (Trump appointee), State of Oregon v. Trump, 3:25-cv-01756 (D. Or.)
This case challenges Secretary Hegseth’s Sept. 28 memorandum (“Hegseth Memorandum”) authorizing the federalization and deployment of National Guard forces to Portland (Memorandum citing President Trump’s Jun. 7 memorandum invoking 10 U.S.C. § 12406 to authorize nationwide Guard mobilization).
On Oct. 4, Judge Immergut granted the plaintiffs’ motion for a temporary restraining order and enjoined the Hegseth Memorandum for 14 days, finding the federal government likely lacked authority under § 12406 to federalize Oregon’s National Guard. The court rejected the government’s reliance on § 12406(3) (allowing federalization when the President is “unable with the regular forces to execute the laws of the United States”). Assessing whether the President had invoked § 12406(3) based on “a colorable assessment of the facts” at the time of the invocation, Judge Immergut found that the President did not have a “colorable basis” to federalize the National Guard because “the situation on the ground belied an inability of federal law enforcement officers to execute federal law. … The President’s determination was simply untethered to the facts” (emphasis added). While “the President is certainly entitled [to] ‘a great level of deference’” (citation omitted), the court emphasized that such deference “is not equivalent to ignoring the facts on the ground.” Further, judge Immergut found that “the President’s own statements … support that his determination was not ‘conceived in good faith’ or ‘in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance” (emphasis in original).
On Oct. 8, the Ninth Circuit granted an administrative stay of the Oct. 4 TRO’s block on federalizing the National Guard, but left in place the TRO’s block on the deployment of the Guard to Portland.
24-b. Key federal testimony supporting federalization of the National Guard to Portland found “inconsistent,” “speculative,” “not … reliable,” “internally inconsistent,” and not credible, permanent injunction concludes
Judge Karin J. Immergut (Trump appointee), State of Oregon v. Trump, 3:25-cv-01756 (D. Or.)
This case challenges Secretary Hegseth’s Sept. 28 memorandum (“Hegseth Memorandum”) authorizing the federalization and deployment of National Guard forces to Portland (Memorandum citing President Trump’s Jun. 7 memorandum invoking 10 U.S.C. § 12406 to authorize nationwide Guard mobilization).
On Nov. 2, following a bench trial, Judge Immergut issued a preliminary injunction blocking implementation of the Hegseth Memorandum federalizing and deploying Oregon’s National Guard pending a final merits decision. Even affording the President a “great level of deference,” the court found no “colorable” basis and no action “conceived in good faith … directly related to the quelling of the disorder,” and concluded—based on the “facts on the ground”—there was “no credible evidence” that protests impeded federal law enforcement or amounted to a “rebellion” or danger of a rebellion.
On Nov. 7, the court issued a permanent injunction—holding the government’s conduct was ultra vires under 10 U.S.C. § 12406 and in violation of the Tenth Amendment—and again crediting state and local evidence over federal accounts. Indeed, the court repeatedly found the federal account lacked credibility and was contradictory and inconsistent. The court noted that government “witnesses and the contemporaneous reports of federal agencies paint an uneven picture” (emphasis added). Instead, the court credited “all” Portland Police Bureau (PPB) witnesses as “credible.”
For example, on crowd-size disputes, Judge Immergut found “the PPB reporting more credible;” “[t]here was no credible evidence that an organization coordinated the movement or actions of ICE facility protesters;” “no credible evidence” that a protestor-counterprotestor altercation impeded federal protection of the building; and “no credible evidence that protest activities at the ICE facility created more than a minimal interference with Defendants’ ability to enforce Title 8 immigration laws.” The court also rejected Federal Protective Service’s (FPS) claims that PPB failed to respond to calls for help: “The Court does not find this testimony to be credible. FPS did call PPB for help, and PPB routinely responded.”
The court found parts of ICE/ERO Field Office Director Wamsley’s account of damage to the facility to be “not … reliable,” extended that unreliability to her testimony on the alleged breach of the facility as “inconsistent with every other piece of evidence,” and noted her “general lack of reliability” (emphasis added).The court noted Commander W.T.’s testimony was “internally inconsistent,” and Major General Rieger had “no personal knowledge” of, nor was briefed on, “conditions at the ICE Facility” when he issued his Sept. 27 memo requesting federalization—his information came from “news and social media,” a Truth Social post, and the court’s TRO. Further, FPS Director R.C.’s “testimony regarding how PPB will respond to very large protests in the future” was “speculative and inconsistent with the evidence presented at trial,” the court said (emphasis added).
Judge Immergut also said that she found the administration’s explanation for leaving several National Guard members at the Portland ICE facility unconvincing, stressing that while the court would “ordinarily … be inclined to accept” such an account, here it was “deeply troubled” by their “continued deployment … in violation of the First TRO.”
Of note, Judge Immergut pointed out that the government gave conflicting numbers to different courts—what it told the Ninth Circuit versus what it disclosed in discovery before her court:
“Among other information, the response suggested that the number of FPS officers diverted to the Portland ICE facility ranged from 20 to 31 between June 16, 2025, and October 5, 2025, … contrary to the Ninth Circuit majority’s reliance on Defendants’ earlier representation that’ 115 FPS officers—nearly 25% of FPS officers nationwide—were diverted to Portland.’” (citations omitted).
(Note: On Oct. 27, in the Ninth Circuit, DOJ said that it “wish[ed] to correct a factual discrepancy” it had made to the court, clarifying the earlier “115 FPS officers” figure reflected deployments and that the number of “individual FPS officers” was in fact “86.” But a government declaration filed days before in district court said only “20 to 31” FPS officers were diverted to the Portland ICE facility between Jun. 16-Oct. 5 (emphasis added).)
25. The “perceptions” of three government declarants “are not reliable,” and their declarations contain “unreliable information” that reflects “a potential lack of candor” and “call[s] into question their ability to accurately assess the facts”
Judge April M. Perry (Biden appointee), Illinois v. Trump, 1:25-cv-12174 (N.D. Ill.)
This case involves a challenge to the federalization and deployment of National Guard troops in Illinois under 10 U.S.C. § 12406, alongside Tenth Amendment and Posse Comitatus claims.
On Oct. 9, Judge Perry issued a temporary restraining order after finding that the government’s version of facts were not credible. In an Oct. 10 opinion, the court said it “cannot conclude that Defendants’ declarations are reliable,” citing omissions and inaccuracies that “demonstrat[e] a potential lack of candor by these affiants” and “call into question their ability to accurately assess the facts,” as well as a “troubling trend” of equating peaceful protest with riotous conduct and “bias and a lack of objectivity” (emphasis added). For example, two DHS/CBP declarants referenced arrests from Sept. 27 but failed to disclose that federal grand juries declined to indict, calling into question their factual assessments. A third declaration claimed the Federal Protective Service had requested a federalized Guard to protect the federal courthouse—an “incendiary” assertion the court found inaccurate, after which the Government submitted a corrected declaration. The court concluded all three declarations contained “unreliable information” (emphasis added).The court also noted that internal DHS emails to the Illinois State Police tracked more closely with state and local accounts than with DHS’s own declarations, and that the Government’s affidavits overstated violence and were “impossible to align” with on-the-ground accounts (emphasis added). “Ultimately, this Court must conclude that Defendants’ declarants’ perceptions are not reliable,” the court wrote (emphasis added).
26. Affidavit supporting criminal complaint told a “largely fictional” story of the stop, including “blatant misstatements;” AUSA conceded the affidavit “misrepresented what was going on;”
Judge Xavier Rodriguez (W. Bush appointee), United States v. Jaime Alberto Quintanilla-Chavez, 5:25-CR-388 (W.D. Tex.)
This case involves a challenge to an indictment for assaulting a federal officer, in violation of 18 U.S.C. § 111(a)–(b), arising from a vehicle stop and ensuing encounter.
On Oct. 20, Judge Rodriguez dismissed the indictment, finding that the government advanced “ever-shifting positions” and after-the-fact rationales for the stop (emphasis added). The court noted that a sworn affidavit by a special agent “tells a very different—and largely fictional—story” of the stop, describing the agents’ account as reflecting “blatant misstatements about the basis for the stop” (emphasis added). The court pointed out that at the Aug. 25 hearing, the prosecutor “conceded” the affidavit “misrepresented what was going on” once body-camera footage was reviewed (emphasis added). Further, the footage showed no agents or bystanders in front of the vehicle when it moved, undercutting the officer-safety rationale and testimony the court deemed “not credible.”
27. DHS/ICE “inaccurately describ[ing] the facts,” advancing a “decidedly incorrect” account of events, and “‘incorrectly describ[ing] the procedural posture of the case’” in immigration detention habeas case
Judge Leo T. Sorokin (Obama appointee), Shinwari v. Hyde, 1:25-cv-12021 (D. Mass.)
This case involves a habeas challenge to DHS/ICE’s decision to treat his current immigration custody as mandatory detention under 8 U.S.C. § 1225(b)(2), rather than discretionary detention under § 1226(a), which would allow him to seek a bond hearing.
On Oct. 20, denying the government’s motion to reconsider the court’s Oct. 3 order allowing the amended petition and directing a bond hearing, Judge Sorokin faulted the government for “inaccurately describ[ing] the facts” about a warrant, “‘incorrectly describ[ing] the procedural posture of the case,’” and offering “their different (and decidedly incorrect) recitation of the events” (emphasis added).
28. “Court does not credit” ICE official’s “assertion” of § 1225(b)(2)(A) detention because it is “contradicted by the Notice of Custody Determination.”
Judge Julia E. Kobick (Biden appointee), Gomes v. Hyde, 1:25-cv-11571 (D. Mass.)
This case involves a habeas challenge to DHS/ICE’s decision to treat his current immigration custody as mandatory detention under 8 U.S.C. § 1225(b)(2)(A), rather than discretionary detention under § 1226(a), which would allow him to seek a bond hearing.
On Jul. 7, Judge Kobick, granting Gomes’s habeas petition and ordering that he receive a bond hearing under § 1226(a), rejected the government’s new assertion that he was detained under § 1225(b)(2). Addressing an ICE official’s declaration, she wrote:
“In his declaration, ICE Assistant Field Office Director Keith M. Chan asserts that ‘[o]n May 29, 2025, ICE detained [Gomes] pursuant to its authority [under] 8 U.S.C. § 1225(b).’ … The Court does not credit this assertion. The assertion is in the nature of a legal conclusion, not a fact, and in any event is contradicted by the Notice of Custody Determination completed by the ICE officer who ordered Gomes detained.” (citation omitted) (emphasis added).
29. “Court cannot credit” DHS/ICE’s post-hoc “new position … raised for the first time in this litigation” asserting § 1225(b) immigration detention, given “the record is devoid of any reference to § 1225” and “indisputable” evidence of § 1226 treatment
Judge Dale E. Ho (Biden appointee), Lopez Benitez v. Francis, 1:25-cv-05937 (S.D.N.Y.)
This case involves a habeas challenge to DHS/ICE’s decision to treat his current immigration custody as mandatory detention under 8 U.S.C. § 1225(b)(2)(A), rather than discretionary detention under § 1226(a), which would allow him to seek a bond hearing.
On Aug. 13, having searched the record, Judge Ho found it “devoid” of any evidence that the mandatory statute was ever applied to the petitioner–not during his initial 2023 arrest or even during his most recent warrant and arrest by ICE agents. Judge Ho therefore “decline[d] to credit Respondents’ position that Mr. Lopez Benitez is … is thus subject to mandatory detention under § 1225(b),” writing that “it is indisputable” that the government
“have consistently treated Mr. Lopez Benitez as subject to § 1226, and that they most recently detained him last week pursuant to that statute. Indeed, the record is devoid of any reference to § 1225 in connection with Mr. Lopez Benitez’s arrest and detention until they filed their Opposition to his Petition. … The Court cannot credit Respondents’ new position as to the basis for Mr. Lopez Benitez’s detention, which was adopted post hoc and raised for the first time in this litigation.” (citation omitted) (emphasis added).
Judge Ho also said that he would not “credit” DOJ counsel’s “speculation” that when Lopez was first arrested in 2023 he could have initially been designated under § 1225 as “[n]othing in the 2023 documents authorizing Mr. Lopez Benitez’s arrest and subsequent release suggest anything to that effect.”
30. “Court cannot credit” DHS/ICE’s post-hoc claim that immigration detention fell under § 1225(b)(2)(A), “despite clear indication” the detention was not under that statute
Judge Brandy R. McMillion (Biden appointee), Lopez-Campos v. Raycraft, 2:25-cv-12486 (E.D. Mich.)
This case involves a habeas challenge to DHS/ICE’s decision to treat his current immigration custody as mandatory detention under 8 U.S.C. § 1225(b)(2)(A), rather than discretionary detention under § 1226(a), which would allow him to seek a bond hearing.
On Aug. 29, rejecting the government’s post-hoc claim that § 1225(b)(2)(A) governed detention, Judge McMillion wrote:
“It was not until Lopez-Campos requested a custody redetermination hearing (bond hearing) that Respondents claimed his detention was under Section 1225(b)(2)(A). The Court cannot credit this new position that was adopted post-hac [sic], despite clear indication that Lopez-Campos was not detained under this provision.” (emphasis added).
31. “Court cannot credit” DHS/ICE’s post-hoc “new position” reclassifying immigration detention under § 1225(b)(2)(A) “despite clear indication” the custody did not arise under that statute.
Judge Brandy R. McMillion (Biden appointee), Santos Franco v. Raycraft, 2:25-cv-13188 (E.D. Mich.)
This case involves a habeas challenge to DHS/ICE’s decision to treat his current immigration custody as mandatory detention under 8 U.S.C. § 1225(b)(2)(A), rather than discretionary detention under § 1226(a), which would allow him to seek a bond hearing.
In an Oct. 21 order addressing Franco’s habeas petition, Judge McMillion rejected the government’s post-hoc assertion that his current detention was properly classified under § 1225(b)(2)(A) rather than § 1226(a), writing:
“Notably, Respondent previously released Santos Franco and the Government does not cite to anything to support its new interpretation that his current arrest is under 1225(b)(2)(A). And the Court is not persuaded that Petitioner’s five-year-pending application for cancellation of removal is enough to constitute ‘seeking admission.’ To hold otherwise, would allow the Government to sweepingly apply a provision of the INA that is inapplicable, and the Court is not willing to do that. Three years after having initially released Santos Franco, and following his rearrest on August 16, 2025, Respondent now claims his detention was under Section 1225(b)(2)(A). … The Court cannot credit this new position that was adopted post-hac [sic], despite clear indication that Santos Franco was not detained under this provision when he was first encountered in 2016.” (citation omitted) (emphasis added).
32. ICE Deputy Field Director declaration “contradicted pretty thoroughly” by migrants
Judge Robert W. Gettleman (Clinton appointee), Moreno Gonzalez v. Noem, 1:25-cv-13323, (N.D. Ill.)
The case involves allegations of “mass constitutional violations” at the Broadview ICE facility, including inhumane and overcrowded conditions, denial of access to counsel, and coercion of detainees to sign rights-waiving immigration forms
During a Nov. 4 emergency TRO hearing, Judge Gettleman reportedly said that a declaration submitted by DOJ lawyers from ICE Deputy Field Director Shawn Byers regarding conditions at Broadview “has been contradicted pretty thoroughly” by hours of testimony from five undocumented migrants.
33. DOT’s “nakedly misleading characterization” of immigration-enforcement grant conditions
Chief Judge John J. McConnell, Jr. (Obama appointee), State of California v. United States Department of Transportation, 1:25-cv-00208 (D.R.I.)
This case involves a challenge by twenty States to the Department of Transportation’s “Immigration Enforcement Condition” (IEC), which predicates federal transportation grants on state cooperation with federal civil immigration enforcement.
On Nov. 4, Judge McConnell granted the States’ motion for summary judgment and denied DOT’s cross-motion, holding that the IEC violated the APA and the Spending Clause, vacating the condition from all DOT grant agreements, and permanently enjoining the government from conditioning transportation funding on state cooperation with federal civil immigration enforcement. The court emphasized that the government’s “core counterargument against the merits of the States’ APA claim [was] its repeated insistence that the IEC merely asks the States to certify compliance with federal law, and that it cannot be arbitrary or capricious for DOT to ensure this compliance.” Judge McConnell described this “gimcrack defense” as a “nakedly misleading characterization of what the IEC requires” (emphasis added).
34. CBP Commander “admitted that he lied;” CBP/ICE/DHS portrayal of Chicago unrest lacked credibility, “belie[d]” by own evidence; “Overall, this calls into question everything that defendants say they are doing”
Judge Sara Lee Ellis (Obama appointee), Chicago Headline Club v. Noem, 1:25-cv-12173 (N.D. Ill.)
This case involves challenges by protestors and journalists to the deployment of federal law enforcement officers including ICE and CBP agents in the city of Chicago.
Following a Nov. 5 evidentiary hearing that included live testimony, Judge Ellis extended her Oct. 9 temporary restraining order on Nov. 6, granting the plaintiffs’ motion for a preliminary injunction from the bench. Reports describe her as sharply questioning the government’s credibility and portrayal of unrest in Chicago. According to those accounts, she said that “I don’t find defendants’ version of events credible,” and added, “I find the government’s evidence to be simply not credible,” and thattheDOJ’s claims “lack credibility.”
After reviewing the video evidence offered by the government, the court rejected the administration’s portrayal of unrest in Chicago: “I watched the defendants’ videos. This, and hours and hours and hours of bodycam video and video from helicopters, was the best they could provide,” adding,
“The government would have people believe … that the Chicagoland area is in a vise hold of violence, ransacked by rioters and attacked by agitators. That simply is untrue, and the government’s own evidence in this case belies that assertion.” (emphasis added)
Judge Ellis reportedly focused in particular on the testimony and deposition of CBP Commander Gregory Bovino. She recounted how Bovino had claimed a protester hit him with a rock before he threw a tear gas canister into a crowd in Little Village, but then backed away from that story when video evidence failed to support it. “Defendant Bovino admitted that he lied,” Judge Ellis said, adding, “He admitted that he lied about whether a rock hit him before he deployed tear gas in Little Village” (emphasis added). She continued: “Mr. Bovino and the Department of Homeland Security claimed that he had been hit by a rock in the head before throwing the tear gas, but video evidence disproves this. And he ultimately admitted he was not hit until after he threw the tear gas.” Judge Ellis also noted that Bovino denied using force on a man he was filmed tackling to the ground. “In one of the videos, Bovino obviously attacks and tackles the declarant, Mr. Blackburn, to the ground,” she said, adding, “But Mr. Bovino, despite watching this video [in his deposition] says that he never used force.”
She reportedly raised similar concerns about U.S. Customs and Border Protection agent Kristopher Hewson, who testified on Nov. 5 that footage of him and his officers interacting with protesters captured him saying only, “get ’em.” Judge Ellis disagreed with that characterization the following day, stating: “Clearly, what he said was ‘hit them.’”
Summing up her concerns about the government’s credibility, Judge Ellis concluded:
“Overall, this calls into question everything that defendants say they are doing in their characterization of what is happening either at the Broadview facility or out in the streets of the Chicagoland area during law enforcement activities.” (emphasis added).
(On Nov. 19, a Seventh Circuit panel stayed Judge Ellis’s Nov. 6 preliminary injunction as overbroad, while noting that her “voluminous and robust factual findings” may support a “more tailored” injunction.)
35. USDA’s assertion it could do “nothing more” to act “expeditiously” on November SNAP benefits “carries no weight”
Chief Judge John J. McConnell, Jr. (Obama appointee), Rhode Island State Council of Churches v. Rollins, 1:25-cv-00569 (D.R.I.)
This case involves a challenge to USDA’s October 2025 suspension of November SNAP benefits during the FY 2026 shutdown and its early termination of existing ABAWD work-requirement waivers, seeking declaratory and injunctive relief to set aside those actions and to compel the release of available contingency/Section 32 funds to pay November benefits and reinstate the waivers.
On Nov. 6, granting enforcement of the prior temporary restraining order, Judge McConnell rejected the government’s claim that “there is nothing more USDA could do” to act “expeditiously” in resolving the administrative burdens of making partial payments, stating that contention “carries no weight.” He emphasized that USDA already knew partial payments would entail delays and errors, that they “could have begun working to resolve the administrative hurdles once the lapse in appropriations occurred, or even before,” and that by choosing the partial-payment path they “would be prolonging implementation and frustrating the very purpose of the TRO,” even though the other option “provided a faster and more practical means of compliance.” Beyond the speed requirement, the court identified a “$600 million discrepancy” in USDA’s contingency-fund math.
(On Nov. 7, the defendants also filed a notice advising the district court that Congress had restored full FY 2026 SNAP funding and that USDA had directed state agencies to “take immediate steps to ensure households receive their full November allotments promptly.”)
36. USDA’s Nov. 8 SNAP letter calling States’ actions “unauthorized” was “untethered to the factual record” and government “conceded” notice was “erroneous on its face”
Judge Indira Talwani (Obama appointee), Commonwealth of Massachusetts v. United States Department of Agriculture, 1:25-cv-13165 (D. Mass.)
This case involves a challenge to the November 2025 suspension of SNAP benefits by the U.S. Department of Agriculture (USDA), allegedly as a result of the government shutdown that began Oct. 1, 2025.
On Nov. 12, granting a TRO directing USDA to ensure prompt November SNAP payments, Judge Talwani found “USDA’s assertion—that the States took ‘unauthorized’ action when they were complying with a court order that had not yet been stayed and with the USDA’s own directive—untethered to the factual record” (emphasis added). Judge Talwani noted that “Defendants have conceded that the November 4 directive regarding 50% partial SNAP payments was erroneous on its face,” adding, “Notably, USDA has never provided any basis for setting the contingency fund payments at 50%, a figure that appears to have been pulled out of thin air” (emphasis added). She further stated that USDA had not “adequately explained” why its systems could not release contingency funds and offered only assertions “without reference to any affidavit.”
Judge Talwani also noted DOJ’s inconsistent positions: telling the court any vacatur would be “nationwide,” then telling the First Circuit states could not rely on the Rhode Island order because they were not parties, before later conceding here that Rhode Island “ordered the government to pay the States.” The court further found that USDA had “confused the record” by issuing—and never rescinding—a Nov. 7 notice stating that FNS was “working towards implementing November 2025 full benefit issuances in compliance with the November 6, 2025 order,” a communication that, in retrospect, “appears” to have been “carefully crafted to feign compliance with the D.R.I. Temporary Restraining Order” even though USDA “intended to do no such thing,” before reversing course in the Nov. 8 letter.
(On Nov. 13, after the government shutdown ended, the defendants filed a notice advising that Congress had restored full FY 2026 SNAP funding and that USDA had directed state agencies to “take immediate steps to ensure households receive their full November allotments promptly.”)
37-a. Judge skeptical of DOJ counsel’s and AG Bondi’s claimed “ratif[ication]” of interim U.S. attorney Lindsey Halligan in the James Comey prosecution amid missing transcript pages
Judge Cameron McGowan Currie (Clinton appointee), United States v. James Comey, 1:25-cr-00272 (E.D. Va.) and United States v. Letitia James, 2:25-cr-00122 (E.D. Va.)
These cases involve the criminal prosecutions of former FBI Director James Comey and New York Attorney General Letitia James, which they both challenge on the basis that, inter alia, Lindsey Halligan’s interim appointment as U.S. Attorney for the Eastern District of Virginia was unlawful.
During the Nov. 13 oral argument on Comey’s and James’s challenges to Halligan’s appointment, Judge Currie reportedly flagged a “missing” portion of the Comey grand jury transcript, noting that no court reporter was present after 4:28 p.m., even though the indictment was not returned until more than two hours later—leaving no witness who could testify that Halligan did not continue speaking with the grand jury. Further, Judge Currie reportedly rejected DOJ counsel’s assertion—which echoed an Oct. 31 statement submitted to the court and signed by Attorney General Pam Bondi—that Bondi had reviewed the grand jury materials and retroactively “ratif[ied]” Halligan’s actions. Noting the missing portions of the record, Judge Currie reportedly said, “It became obvious to me that the attorney general could not have reviewed those portions of the transcript presented by Ms. Halligan” since they “did not exist” when Bondi signed her statement. (The full transcripts became available on Nov. 5.)
37-b. “Unusual series of events” involving two inconsistent Comey indictments and prosecutor Lindsey Halligan’s role “call into question the presumption of regularity generally associated with grand jury proceedings”
Magistrate Judge William E. Fitzpatrick, United States v. James Comey, 1:25-cr-00272 (E.D. Va.)
This case involves the criminal prosecution of former FBI Director James Comey.
In a Nov. 17 memorandum opinion ordering disclosure of grand-jury materials, Judge Fitzpatrick described an “unusual series of events” surrounding the grand jury’s consideration of two inconsistent indictments in the Comey prosecution. As the court explained, the grand jury was first presented with a three-count indictment and declined to indict on Count 1, after which interim U.S. Attorney Lindsey Halligan prepared a second, two-count indictment omitting Count 1. Both indictments, fully executed by the foreperson and Halligan, were presented to the magistrate judge, who accepted the “second signed indictment,” but the court now notes that it “may not have” actually been presented to or considered by the grand jury.
The court observed that the short time between the grand jury’s vote and the return of the second indictment “could not have been sufficient” for Halligan to draft a new indictment, present it to the grand jury with legal instructions, and allow deliberation and a vote. “If the prosecutor is mistaken about the time she received notification of the grand jury’s vote on the original indictment, and this procedure did take place, then the transcript and audio recording provided to the Court are incomplete;” if instead the transcript and audio are complete, then “the indictment returned in open court was not the same charging document presented to and deliberated upon by the grand jury,” Judge Fitzpatrick wrote. He added:
“Either way, this unusual series of events, still not fully explained by the prosecutor’s declaration, calls into question the presumption of regularity generally associated with grand jury proceedings, and provides another genuine issue the defense may raise to challenge the manner in which the government obtained the indictment.” (emphasis added).
(At the Nov. 19 hearing on Comey’s motion to dismiss for vindictive and selective prosecution, Halligan reportedly informed Judge Michael S. Nachmanoff that although the full grand jury had voted on the original indictment, the final revised indictment was never presented to the full panel—only to the foreperson and one other juror.)
B. Pretext and Retaliatory Motives
38. Providing pretext for motion to dismiss an indictment
Judge Dale Ho (Biden appointee), United States v. Adams, 1:24-cr-00556 (S.D.N.Y.)
This case involves the Department of Justice’s effort to dismiss its own indictment of Mayor Eric Adams.
On Apr. 2, Judge Ho wrote that the government’s stated rationale (that there was an appearance of impropriety in bringing the case) was “unsupported by any objective evidence” and “appears pretextual.” Instead, the court concluded the true rationale appeared to be a quid pro quo. Judge Ho wrote: “Everything here smacks of a bargain: dismissal of the Indictment in exchange for immigration policy concessions.”
39. “The Court will not apply any presumption of regularity to conduct that is so unusual and therefore irregular on its face.” Preliminary injunction granted where the government was found to be pursuing “an unconstitutional course of retaliatory conduct directed at Harvard.”
Judge Allison D. Burroughs (Obama appointee), President and Fellows of Harvard College v. Department of Homeland Security, 1:25-cv-11472 (D. Mass.)
This case involved the Department of Homeland Security’s revocation of Harvard’s Student and Exchange Visitor Program (SEVP), which would have the effect of blocking current and future international students from attending Harvard.
On Jun. 20, Judge Burroughs issued a preliminary injunction halting the administration’s proclamation to suspend entry for any international students studying at Harvard. Judge Burroughs wrote in her accompanying memorandum and order:
“[T]he Proclamation must be enjoined because it is part of an unconstitutional course of retaliatory conduct directed at Harvard in response to its exercise of its First Amendment rights. …
Far from rebutting a finding of retaliation, the Administration’s concerted campaign entirely supports such a finding. …
As a last gasp, Defendants argue that the Proclamation should get the ‘presumption of regularity’ of government activity. … [But] the use of that text here is hardly regular. As Harvard notes, it has never been used to target the conduct or actions of domestic entities. … And it has never been used to completely eliminate a legitimate university’s ability to host international students. … Thus, the Court will not apply any presumption of regularity to conduct that is so unusual and therefore irregular on its face.” (emphasis added).
40. Executive Order terminating collective bargaining rights for federal workers enjoined as retaliatory, with court finding the presumption of regularity “has no application”
Judge James Donato (Obama appointee), American Federation of Government Employees, AFL-CIO v. Trump, 3:25-cv-03070 (N.D. Cal.)
This case involved challenges to an Executive Order terminating federal employees collective bargaining protections.
On Jun. 24, Judge James Donato granted the plaintiffs’ motion for a preliminary injunction, which enjoined the defendants from implementing the EO against the plaintiffs and their members. In his opinion, Judge Donato finds “serious questions under the First Amendment” and expressly notes that “Plaintiffs have adduced evidence that a serious question may be asked whether the agency exclusions in EO 14251 are retaliation for protected speech.” emphasis added). In short, he found sufficient evidence to suggest “‘that there was a nexus between the defendant’s actions and an intent to chill speech.’” Rejecting the government’s invocation of the presumption of regularity, Judge Donato wrote that “the presumption of regularity … does not necessarily save the day,” since “plaintiffs have shown a sufficient likelihood that they will prevail on the argument that the presumption has no application because there is an ‘actual irregularity in the President’s factfinding process or activity,’ and the opposite conclusion is warranted that ‘the President was indifferent to the purposes and requirements of the Act, or acted deliberately in contravention of them.’” (citations omitted) (emphasis added).
On Jul. 10, the Ninth Circuit granted a stay of the preliminary injunction pending appeal.
41. Executive Order targeting Jenner & Block LLP found unconstitutional
Judge John D. Bates (Bush appointee), Jenner & Block LLP v. U.S. Department of Justice, 1:25-cv-00916 (D.D.C.)
This case involves President Trump’s Mar. 25 Executive Order (EO) terminating government contracts, denying members of the firm access to federal employees, and suspending employees’ security clearances.
On Mar. 28, Judge Bates granted a temporary restraining order. On May 23, he granted plaintiffs’ motion for summary judgment and found the EO to be “an unconstitutional act of retaliation,” enjoining the EO’s “operation in full.” Judge Bates wrote:
“Like the others in the series, this order—which takes aim at the global law firm Jenner & Block—makes no bones about why it chose its target: it picked Jenner because of the causes Jenner champions, the clients Jenner represents, and a lawyer Jenner once employed. Going after law firms in this way is doubly violative of the Constitution. Most obviously, retaliating against firms for the views embodied in their legal work—and thereby seeking to muzzle them going forward—violates the First Amendment’s central command that government may not ‘use the power of the State to punish or suppress disfavored expression.’ … More subtle but perhaps more pernicious is the message the order sends to the lawyers whose unalloyed advocacy protects against governmental viewpoint becoming government-imposed orthodoxy. This order, like the others, seeks to chill legal representation the administration doesn’t like[.] …
Jenner’s primary claim—and its most straightforward winner—is the First Amendment retaliation claim. …
Usually, figuring out whether retaliation would chill a speaker of ordinary firmness—and ascertaining just how much a speaker would have to trim her advocacy to avoid reprisal—requires some guesswork. Not here. The serial executive orders targeting law firms have produced something of an organic experiment, control group and all, for how firms react to the orders and how they might escape them. Over the course of that experiment, several firms of (presumably) ordinary firmness have folded rather than face similar executive orders. …
[W]hereas retaliation usually punishes once and moves along, the retaliation here is ongoing and avoidable. In this context, retaliation amounts to something akin to the impermissible ‘scheme of informal censorship’ that arises when government actors use the ‘threat of invoking legal sanctions and other means of coercion to achieve the suppression of disfavored speech.’ …
In short, the order raises constitutional eyebrows many times over. It punishes and seeks to silence speech ‘at the very center of the First Amendment,’ … does so via the most ‘egregious form of content discrimination— viewpoint discrimination,’ … all in an unacceptable attempt to ‘insulate the Government’s laws from judicial inquiry’ …
… On the merits, there’s no doubt that the President ordered the Jenner-specific process in retaliation for Jenner’s protected speech.” (citations omitted) (emphasis added).
42. Executive Order targeting WilmerHale found unconstitutional
Judge Richard J. Leon (Bush appointee), Wilmer Cutler Pickering Hale and Dorr LLP v. Executive Office of President, 1:25-cv-00917 (D.D.C.)
This case involves President Trump’s Mar. 27 Executive Order terminating WilmerHale’s government contracts, restricting access to federal employees, and suspending its employees’ security clearances.
On Mar. 28, Judge Leon granted a temporary restraining order enjoining implementation and enforcement of Sections 3 and 5 of the EO, stating, inter alia, “The retaliatory nature of the Executive Order at issue here is clear from its face”. On May 27, Judge Leon granted summary judgement for the plaintiffs on its claim that the EO violated their First Amendment protections against retaliation. In his opinion, Judge Leon noted that:
“The WilmerHale Order is, on its face, retaliation for the firm’s protected speech. Indeed, § 1 outlines the motivations of the Order, including WilmerHale’s pro bono practice, ‘obvious partisan representations to achieve political ends,’ and involvement in immigration and election litigation. …
The Order goes on to impose a kitchen sink of severe sanctions on WilmerHale for this protected conduct! …
The Order shouts through a bullhorn: If you take on causes disfavored by President Trump, you will be punished! …
In sum, WilmerHale has both alleged and shown that the Order is retaliation for protected speech in violation of the First Amendment.” (emphasis added).
43. Preliminary injunction issued against section of EO terminating Treasury employees’ collective bargaining rights
Judge Paul L. Friedman (Clinton appointee), National Treasury Employees Union v. Trump, 1:25-cv-00935 (D.D.C)
This case was brought by the National Treasury Employees Union following President Trump’s Mar. 27 Executive Order (EO) terminating multiple departments’ employees’ statutory collective bargaining rights.
On Apr. 28, Judge Friedman granted a preliminary injunction enjoining Section 2 of the
EO. Judge Friedman held that the plaintiffs overcame the presumption of regularity—thus allowing for judicial review of its ultra vires claims—with “clear evidence” showing the President’s § 7103(b)(1) invocation was not a bona fide “national security” determination, and that the President “‘was indifferent to the purposes and requirements of the [FSLMRS], or acted deliberately in contravention of them.’” The court reached its conclusion for three reasons:
“(1) the Executive Order and the Administration’s surrounding statements are at odds with Congress’s findings in the FSLMRS; (2) the White House Fact Sheet reflects retaliatory motive; and (3) the Administration’s guidance related to the Executive Order – specifically, the OPM Guidance – suggests that the invocation of Section 7103(b)(1) was in furtherance of unrelated policy goals rather than based on the statutory criteria.”
Judge Friedman further wrote:
“In the instant case, the evidence rebutting the presumption of regularity is a significant reason to believe NTEU will prevail on its claim. The scope of the Executive Order when compared with the intent of Congress in passing the FSLMRS, coupled with the surrounding statements in the Fact Sheet and OPM Guidance – which strongly suggest that President Trump’s invocation of Section 7103(b)(1) was mere pretext for retaliation and for accomplishing unrelated policy objectives – are persuasive reasons to believe NTEU likely will be successful on the merits of its claim.” (emphasis added).
On May 16, the D.C. Circuit stayed the preliminary order pending appeal. As currently scheduled, briefing runs through the end of October.
44. Executive Order targeting Susman Godfrey LLP found unconstitutional
Judge Loren L. AliKhan (Biden appointee), Susman Godfrey LLP v. Executive Office of President, 1:25-cv-01107 (D.D.C.)
This case involves Susman Godfrey’s challenge to an Executive Order suspending its employees’ security clearances, restricting government contracts and engagement, and barring agency hiring.
On Jun. 27, Judge Loren Alikan granted the plaintiff’s motion for summary judgment on, inter alia, “Counts I and II of Susman’s complaint [which] allege that the firm was subjected to unfavorable treatment in retaliation for and on the basis of its protected speech.” Issuing a permanent injunction, Judge AliKhan said, inter alia:
“The government’s departure from the well-trodden path of individualized determination in favor of wholesale revocation—without even an ounce of supporting evidence for the court to evaluate—raises red flags and leads the court to believe that the only plausible motivation for Section 2 is retaliation. …
[B]ecause Defendants have offered no plausible explanation for the extraordinary action contemplated by Section 5—which, on its face, could go as far as banning Susman lawyers from courtrooms, post offices, and military bases—the court determines that the record can only support the conclusion that Section 5 was motivated by retaliatory intent. …
The court concludes that the Order constitutes unlawful retaliation against Susman for activities that are protected by the First Amendment, including its representation of certain clients, its donations to certain causes, and its expression of its beliefs regarding diversity.”
45. Preliminary injunction issued against section of EO terminating Department of State and USAID employees’ collective bargaining rights
Judge Paul L. Friedman (Clinton appointee), American Foreign Service Association v. Trump, 1:25-cv-01030 (D.D.C.)
This case was brought by the American Foreign Service Association (AFSA) following President Trump’s March 27 Executive Order (EO) terminating the Foreign Service’s statutory collective bargaining rights.
On May 14, Judge Friedman issued a preliminary injunction enjoining the defendants from implementing Section 3 of the Executive Order, which would exclude subdivisions of the Department of State and USAID from coverage under the Foreign Service Labor-Management Relations Statute. Judge Friedman previously enjoined Section 2 of the same EO in the National Treasury Employees Union v. Trump, 1:25-cv-00935 (D.D.C). The court clarifies (at n.8) that the preliminary injunction was not based on AFSA’s First Amendment retaliation claim. Because the court found AFSA likely to succeed on its ultra vires claims, it did not reach whether AFSA satisfied the requirements for a preliminary injunction on the retaliation theory. Notwithstanding, in his opinion, Judge Friedman stated:
“AFSA has rebutted the presumption [of regularity] by clear evidence. … [T]he Court concluded in Nat’l Treasury Emps. Union v. Trump that the Executive Order – specifically, its unprecedented scope that seemingly conflicts with Congress’s intent – coupled with the contemporaneous statements contained in the White House Fact Sheet and OPM Guidance reflected that the President was either indifferent to or acted in contravention of the requirements of the FSLMRS. … The analysis is identical here, because this case implicates the exact same Executive Order, White House Fact Sheet, and OPM Guidance. …
AFSA provides further argument and evidence that demonstrates a retaliatory motive for the Executive Order. …For example, AFSA highlights the fact that the Executive Order – despite excluding two-thirds of the federal workforce from coverage of the statutes – does not strip collective bargaining rights from the United States Customs and Border Protection (‘CBP’), whose union ‘endorsed the President in last year’s election.’ …
AFSA points to the Secretary of Veterans Administration Doug Collins’s recent decision to restore collective bargaining rights … ‘not to particular subdivisions [of the Department of Veterans Affairs], but to particular unions in the Department.’ … In justifying the decision, VA Press Secretary Pete Kasperowicz stated that the decision to restore the statutory protections to certain unions was based on the fact that those unions ‘have filed no or few grievances against VA and [ ] have not proved an impediment to the department’s ability to effectively carry out its mission . . . .’” …
The additional evidence and argument provided by AFSA bolsters the Court’s earlier conclusion … that the White House Fact Sheet and other contemporaneous evidence ‘reflects retaliatory motive towards certain unions.’” (citations omitted).
On June 20, the D.C. Circuit stayed the preliminary order pending appeal. As currently scheduled, briefing runs through the end of October.
46. Executive Order targeting Perkins Coie LLP found unconstitutional
Judge Beryl A. Howell (Obama appointee), Perkins Coie LLP v. U.S. Department of Justice, 1:25-cv-00716 (D.D.C.)
This case involves President Trump’s Mar. 6 Executive Order terminating government contracts, denying members of the firm access to federal employees, and suspending employees’ security clearances.
On May 2, granting the plaintiff’s motion for summary judgment and a permanent injunction, Judge Howell ruled the Executive Order unconstitutional and condemned it as an “unprecedented attack” on the “foundational principles” of the judicial system, holding that:
“That plaintiff’s protected activities are the only reasons provided by the Order itself to justify the actions directed is strong evidence that the Order retaliates against plaintiff for engaging in those protected activities. Analysis of each section of the Order, as well as the context surrounding its issuance, only adds reasons to confirm this conclusion and further shows that the legal infirmity of retaliation permeates every section and sentence of EO 14230. …
Again, particularly given that President Trump has confirmed the Order was motivated by ‘the conduct of a specific member of this firm,’ the targeting of all the Firm’s employees for such access and hiring restrictions simply cannot be explained by any legitimate governmental purpose, leaving only retaliation as the obvious reason for the First Amendment protected speech and other activities with which EO 14230 takes issue. …
President Trump’s multi-year history of lodging public attacks critical of plaintiff, his promises during the 2024 campaign to act on his displeasure toward plaintiff if he won, and the subsequent issuance of EO 14230—which repeats many of the same attacks on plaintiff—further demonstrates that EO 14230 was issued to seek retribution against plaintiff for the Firm’s representation of clients in political campaigns or litigation, about which President Trump expressed disapproval, dating back to 2017. This purpose amounts to no more than unconstitutional retaliation for plaintiff’s First Amendment protected activity. …
The government’s briefing reveals the true motivation lurking behind the façade of discrimination allegations: the administration’s disapproval of plaintiff’s speech in favor of diversity. This revelation makes clear the pretextual nature of EO 14230’s cited reason regarding plaintiff’s purported discrimination. …
Thus, again, this record firmly supports the finding that EO 14230 serves no legitimate government interest, but only the interest of retaliation. Our Constitution leaves no room for the exercise of ‘purely personal and arbitrary power.’” (citations omitted) (emphasis added).
47. Preliminary injunction granted where DOJ appeared to have terminated grants to ABA with retaliatory motive
Judge Christopher R. Cooper (Obama appointee), American Bar Association v. U.S. Department of Justice, 1:25-cv-01263 (D.D.C.)
This case concerns the DOJ’s termination of grants to the ABA Commission on Domestic and Sexual Violence, which the ABA contends was intended as retaliation for its support of law firms targeted by the Executive Orders.
On May 14, Judge Cooper granted a preliminary injunction on the First Amendment retaliation claim arising from the termination of grants, stating:
“The ABA has made a strong showing that Defendants terminated its grants to retaliate against it for engaging in protected speech. …
[T]he ABA’s allegations, accepted as true, plausibly plead that the government’s proffered justification for terminating the grants is pretextual, and that the real reason was retaliation. The Blanche Memo explicitly spells out how DOJ will be changing its approach toward the ABA in light of the ABA’s lawsuit against the United States. And the temporal proximity between the Blanche Memo and the termination of the ABA’s grants is probative of Defendants’ retaliatory motive. …
The government claims that it had a nonretaliatory motive for terminating the grants: They no longer aligned with DOJ’s priorities. But the government has not identified any nonretaliatory DOJ priorities, much less explained why they were suddenly deemed inconsistent with the goals of the affected grants. And the government’s different treatment of other grantees suggests this justification is pretextual.” (emphasis added).
48. Preliminary injunction issued where DHS appeared to have acted to punish AFGE and its members, constituting “impermissible retaliation”
Judge Marsha J. Pechman (Clinton appointee) American Federation of Government Employees, AFL-CIO v. Noem 2:25-cv-00451 (W.D. Wash.)
This case involves DHS’ announcement that it was ending collective bargaining for the TSA’s Transportation Security Officers.
On Jun. 2, Judge Pechman issued a preliminary injunction blocking DHS secretary Kristi Noem from ending collective bargaining rights and rescinding the 2024 union contract for Transportation Security Officers, finding (in part) that the action was likely retaliatory. Judge Pechman stated:
“AFGE has demonstrated a strong likelihood that the Noem Determination constitutes impermissible retaliation against it for its unwillingness to acquiesce to the Trump Administration’s assault on federal workers. …
The Noem Determination appears to have been undertaken to punish AFGE and its members because AFGE has chosen to push back against the Trump Administration’s attacks to federal employment in the courts. The First Amendment protects against retaliation for engaging in litigation and public criticism of the government. And the Noem Determination’s threadbare justification for termination of the CBA exposes the retaliatory nature of the decision.” (emphasis added).
49. Executive Order’s broad exclusions from collective bargaining rights for federal workers found retaliatory and pretextual, rebutting presumption of regularity
Judge Paul Friedman (Clinton appointee),Federal Education Association v. Trump, 1:25-cv-01362 (D.D.C.)
This case involves President Trump’s Executive Order (EO 14251), which excludes most federal workers from collective bargaining rights under the Civil Service Reform Act citing national security concerns.
On Aug. 14, Judge Friedman granted a preliminary injunction which rejected the government’s argument that DoDEA has a “primary national security” function due to the recruitment and retention aspect of educating servicemembers children, and held that the evidence supports the argument that the exclusions set out in the EO were intended as retaliation against labor organizations that have opposed President Trump or in furtherance of unrelated policy goals, thus rebutting the presumption of regularity. Judge Friedman held:
“There are at least two reasons to reject the government’s argument and to conclude that the Court should look to the entirety of the Executive Order’s exclusions. First, the evidence rebutting the presumption of regularity suggests that the Executive Order should be viewed in its entirety. As discussed at length in NTEU and AFSA, contemporaneous evidence surrounding the Executive Order demonstrates that the entire Executive Order likely was motivated by considerations outside of those identified in the statute: the exclusions were intended as retaliation against labor organizations that have opposed President Trump or in furtherance of unrelated policy goals. … As the Union Plaintiffs argue, evidence of these improper motives ‘infect every one of [the Executive Order’s] myriad exclusions,’ … which negate any presumption that an individualized determination was made as to each of the excluded agencies and subdivisions. For the Court to analyze individual exclusions thus appears at odds with the evidence suggesting that the action as a whole was ‘irregular.’ The fact that the presumption of regularity is rebutted therefore may be ‘decisive here,’ and warrants considering the Executive Order as a whole.” (citations omitted) (emphasis added).
On Sept. 2, the D.C. Circuit administratively stayed the district court’s preliminary injunction pending further order of the court.
50. Preliminary injunction issued where FTC investigation of Media Matters deemed retaliatory for criticism of Musk’s X.
Judge Sparkle L. Sooknanan (Biden appointee), Media Matters for America v. Federal Trade Commission, 1:25-cv-01959 (D.D.C.)
This case involves Media Matters’ challenge to an FTC investigation, alleging it was retaliation for its reporting on Elon Musk’s platform “X”.
On Aug. 15, Judge Sooknanan granted a preliminary injunction, finding “that Media Matters is likely to succeed on its First Amendment retaliation claim. … Media Matters engaged in quintessential First Amendment activity when it published an online article criticizing Mr. Musk and X. And the Court finds that the FTC’s expansive CID [(civil investigative demands)] is a retaliatory act.” In making this determination, she noted that the government offered “no declaration explaining why they have decided to investigate Media Matters” until after the present lawsuit commenced. For this reason, she concluded, “given the comments by Chairman Ferguson and his colleagues about Media Matters, the timing of the CID, and evidence of pretext, Media Matters is likely to show that retaliatory animus was the but-for cause of the FTC’s CID.” (emphasis added).
51. Funding freeze targeting Harvard ruled retaliatory and pretextual
Judge Allison D. Burroughs (Obama appointee), President and Fellows of Harvard College v. United States Department of Health and Human Services, 1:25-cv-11048 (D. Mass.) and American Association of University Professors – Harvard Faculty Chapter v. United States Department Of Justice, 1:25-cv-10910 (D. Mass.) (related cases)
This case involves the federal government freezing billions of dollars in funds to Harvard following the university’s refusal to comply with the government’s demands.
On Sept. 3, Judge Burroughs held that the administration’s freeze and termination of Harvard’s funding were retaliatory in violation of the First Amendment and granted Harvard summary judgment on its First Amendment retaliation claim; she also enjoined further funding actions taken in retaliation for Harvard’s protected speech. Judge Burroughs stated:
“Based on this administrative record, the Court is satisfied that Harvard’s protected conduct was a substantial and motivating factor in the Freeze Orders and Termination Letters. Defendants contend, however, that Harvard’s retaliation claim nonetheless fails because ‘the agencies’ terminations are explained by a nonretaliatory purpose: opposing antisemitism,’ … such that the government “would have terminated” the grants irrespective of Harvard’s viewpoints[.] This argument does not carry the day. Defendants have failed to meet their burden to show they acted with a non-retaliatory purpose for several reasons. …
[T]he Court is satisfied that Harvard is entitled to summary judgment on its claim for First Amendment retaliation on the face of the administrative record. The Court would be remiss, however, if it did not note that the summary judgment record also contains numerous exhibits and undisputed facts that go beyond the administrative record that speak to Defendants’ retaliatory motive in terminating Harvard’s funding. Although Defendants now contend that Harvard’s April 14 rejection and subsequent lawsuit had nothing to do with their decision to cut its funding, numerous government officials spoke publicly and contemporaneously on these issues, including about their motivations, and those statements are flatly inconsistent with what Defendants now contend. These public statements corroborate that the government-initiated onslaught against Harvard was much more about promoting a governmental orthodoxy in violation of the First Amendment than about anything else, including fighting antisemitism. …
The fact that Defendants’ swift and sudden decision to terminate funding, ostensibly motivated by antisemitism, was made before they learned anything about antisemitism on campus or what was being done in response, leads the Court to conclude that the sudden focus on antisemitism was, at best (and as discussed infra), arbitrary and, at worst, pretextual” (citations omitted) (emphasis added).
52. Prosecution of Kilmar Abrego Garcia found “presumptively vindictive”
Judge Waverly D. Crenshaw, Jr. (Obama appointee), United States v. Abrego Garcia, 3:25-cr-00115, (M.D. Tenn.)
This case involves the federal government’s criminal prosecution of Kilmar Abrego Garcia following his filing of a legal challenge to his removal to El Salvador.
On Aug. 19, Abrego Garcia moved to dismiss the criminal case for alleged vindictive and selective prosecution (or, in the alternative, to order discovery and an evidentiary hearing on his claims). He argued that the government’s May 21 indictment of him for transporting undocumented aliens was retaliatory, including to “punish him for challenging his removal, to avoid the embarrassment of accepting responsibility for its unlawful conduct, and to shift public opinion around Mr. Abrego’s removal, including ‘mounting concerns’ with the government’s compliance with court orders.”
On Oct. 3, Judge Crenshaw granted Garcia’s request for discovery and an evidentiary hearing, holding that—considering the “totality of events”—Garcia made a prima facie showing of a “realistic likelihood” of vindictiveness. The court applied the presumptive-vindictiveness framework and found both factors present, noting the government’s “significant stake” in deterring Garcia’s Maryland suit, the “significant burden on and embarrassment to the Executive Branch” caused by Garcia’s case, and the potential unreasonableness of its actions. The court highlighted Deputy Attorney General Todd Blanche’s televised remarks tying the decision to investigate Abrego to an adverse Maryland court ruling, as possible direct evidence of “actual vindictiveness” (while reserving any finding on that issue at this stage). The court also stated, “Even assuming the individual motive of Acting U.S. Attorney McGuire was pure, others’ motives, like fruit from a poisonous tree, may taint this prosecution.”
53. “Preordained” and “pretextual;” Venezuela TPS vacatur with “entirely baseless” rationale
Judge Edward M. Chen (Obama appointee), National TPS Alliance v. Noem, 3:25-cv-01766 (N.D. Cal.)
This case challenges DHS’s 2025 Temporary Protected Status actions—vacating the prior Venezuela extension/redesignation, terminating Venezuelans’ TPS, and partially vacating Haitians’ TPS.
On Sept. 5, Judge Chen granted summary judgment for the plaintiffs and denied the government’s motions to dismiss. The Court held that Secretary Noem’s Venezuela action vacating TPS status of Venezuelans was “preordained” and “pretextual:”
“Finally, the Secretary’s decision to vacate was arbitrary and capricious because it was pretextual—i.e., it was not animated by a concern about, e.g., novelty or confusion as professed, nor was it otherwise the result of reasoned agency decision making. Instead, the Secretary—acting with unprecedented haste and in an unprecedented manner—issued the vacatur for the preordained purpose of expediting termination of Venezuela’s TPS.”
Judge Chen emphasized that the asserted rationale was “entirely baseless,” that “there is no evidence of any reasoned decision making behind Secretary Noem’s vacatur,” and that the “highly unusual and unprecedented” failure to consult with other agencies reinforced the pretextual nature of the decision.
As to Haiti, the court deemed the termination necessarily unlawful because it rested on the unlawful partial vacatur, and further held that plaintiffs plausibly alleged pretext—pointing to DHS’s “directly contradictory” explanations (a June 7 press release invoking improved conditions and national interest vs. a July 1 Federal Register notice relying only on national interest and describing ongoing instability), and noting that pretext may also be inferred from other evidence presented.
On Oct. 3, the U.S. Supreme Court granted the government’s motion for a stay of the district court’s Sept. 11 order as it applied to Venezuelan TPS.
54. Transgender military ban “littered” and “dripping” with pretext and “bear no relation to fact”
Judge Ana Reyes (Biden appointee), Talbott v. Trump, 1:25-cv-00240 (D.D.C.)
The case involved the Trump administration’s efforts to ban transgender people from serving in the U.S. military, and to dishonorably discharge currently serving transgender service members.
On Mar. 18, granting a preliminary injunction against the administration’s transgender military ban, Judge Reyes found that the administration’s stated justifications were pretextual, writing that the Military Ban is “littered with animus and pretext” and “soaked in animus and dripping with pretext,” its language “unabashedly demeaning, … and its conclusions bear no relation to fact” (emphasis added). The court further expressed “considerable doubt” that the ban was needed to ensure fitness, emphasizing that the policy’s “‘breadth’ [over targeting anyone considered affected by gender dysphoria] ‘so far removed’ from military health concerns, it is ‘impossible to credit’ Defendants’ justifications’” (citation omitted).
55. DHS offered pretextual reasons for TPS termination for Nepal, Honduras, and Nicaragua
Magistrate Judge Sallie Kim, National TPS Alliance v. Noem, 3:25-cv-05687 (N.D. Cal.)
This case challenges DHS’s termination of Temporary Protected Status (TPS) for Nepal, Honduras, and Nicaragua.
On Aug. 21, Judge Kim granted the plaintiffs’ request for extra-record discovery on their APA and Equal Protection claims. The court held that the plaintiffs made a Department of Commerce v. New York–type showing of bad faith/pretext, expressly relying on District Judge Trina L. Thompson’sJul. 31 order that found the TPS terminations were “based on a preordained determination … rather than an objective review of the country conditions,” and quoting Judge Thompson’s discussion of statements “stereotyping the TPS program and immigrants as invaders.” Judge Kim then added that these statements “suggest [the Secretary’s] decisions were based on racism, not country conditions” and stated that “plaintiffs have demonstrated that the reasons offered by the agency are pretextual.”
Additionally, for materials the government withheld under the deliberative-process privilege, the court held that the presumption of regularity “does not apply” because plaintiffs showed both that “the decision memoranda were improperly categorized as deliberative” and that agency decisionmakers acted with bad faith, misconduct, or impropriety. The court further noted that deliberative materials may be relevant where the agency’s stated reasons are “pretextual.”
56. HHS “invented” two pretexts to support new grant conditions stripping gender-identity content from PREP/SRAE
Judge Ann Aiken (Clinton appointee), State of Washington v. Health and Human Services, 6:25-cv-01748 (D. Or.)
The case challenges new HHS grant conditions that require states to remove all references to gender identity from federally funded sexual health education programs under the PREP and SRAE statutes
Granting a preliminary injunction on Oct. 27, Judge Aiken found that the government’s explanations were “absurd” and that it had offered at least two pretextsfor its actions. The court agreed with the plaintiffs that
“the real reason behind HHS’s Gender Conditions is to ‘erase’ transgender and gender diverse people from the program materials consistent with ‘this administration’s overtly hostile comments regarding transgender people.’ … That is, Plaintiff States contend that the real reason behind HHS’s Gender Conditions is to implement the administration’s policy objectives as set out in E.O. 14,168. The Court agrees.” (citations omitted) (emphasis added).
HHS initially directed Plaintiff States to submit curricula for a “medical accuracy review,” but then “change[d] course” and refrained from conducting that review. The court said:
“On this record, the Court infers that, in imposing the Gender Conditions, what HHS really seeks is to implement the administration’s policy preferences. The ‘medical accuracy review’ was mere pretext.” (emphasis added).
The court further added that
“after HHS discovered that curricula materials that reference gender identity would survive a medical accuracy review, it then invented a second pretext—that “gender ideology is outside the scope of the authorizing statute.” (emphasis added).
“In sum, HHS fails to show that the new grant conditions are reasonable, let alone offer any reasonable explanation, other than pretext, for its action,” Judge Aiken concluded.
57. DOJ’s subpoena of gender affirming care provider “pretextual;” DOJ “abandoned good faith investigation”
Judge Jamal N. Whitehead (Biden appointee), QueerDoc, PLLC v. U.S. Department of Justice, 2:25-mc-00042 (W.D. Wash.)
This case concerns the Department of Justice’s issuance of an administrative subpoena to QueerDoc, a small telehealth provider of gender-affirming care.
In quashing a Department of Justice subpoena directed at QueerDoc, Judge Whitehead found on Oct. 27 that the Justice Department’s pursuit of the subpoena reflected an “improper purpose” and a “pretextual nature,” and that the Department had “abandoned good faith investigation in favor of policy enforcement through prosecutorial coercion” (emphasis added).
Rejecting the Justice Department’s contention that the subpoena was tied to potential violations of the Food, Drug, and Cosmetic Act or False Claims Act, the court found instead that “this is not speculation about hidden motives—it is the Administration’s explicit agenda.” The record demonstrated that the DOJ sought “the intended effect of its Executive Orders and these subpoenas to ‘downsize or eliminate’ all gender-affirming care.” The court concluded: “No clearer evidence of improper purpose could exist than the Government’s own repeated declarations that it seeks to end the very practice it claims to be merely investigating.”
The order underscored the “pretextual nature” of the subpoena, noting that “[t]he Attorney General directed investigations of ‘manufacturers and distributors engaged in misbranding’ and providers submitting false insurance claims. QueerDoc is neither.” The court explained that “this mismatch is not just a technicality. It suggests that the DOJ issued the subpoena first and searched for a justification second” (emphasis added). Demanding thousands of patient records from an entity “that cannot, by definition, commit the violations being investigated” confirmed that QueerDoc was targeted “for what it does (provide gender-affirming care) rather than how it does it (through any unlawful means)” (emphasis added).
Judge Whitehead also struck down DOJ’s attempt to supplement its case via an improper “praecipe,” noting that even if considered, the declaration only “further demonstrate[d] the pretextual nature of the subpoena”—showing the government had devoted “substantial national investigation” resources, including “multiple FBI agents,” to pursue a small telehealth provider with no link to the violations ostensibly under investigation (emphasis added).
58. OMB’s actions during the government shutdown found “retaliatory and partisan”
Judge Susan Illston (Clinton appointee), American Federation of Government Employees, AFL-CIO v. Trump, 3:25-cv-03698 (N.D. Cal.) and American Federation of Government Employees, AFL CIO v. United States Office of Management and Budget, 3:25-cv-08302 (N.D. Cal.) (related cases)
This case involves a challenge to OMB’s Sept. 24 “Lapse Memorandum” and OPM’s Sept. 28 updated shutdown guidance and “Special Instructions”—which authorized agencies to administer RIFs during the federal government shutdown beginning Oct. 1—as unlawful and beyond their authority.
On Oct. 28, issuing a preliminary injunction, Judge Illston credited the plaintiffs’ showing that the President and OMB “explicitly direct[ed] agencies to use RIFs to punish Democrats by targeting programs perceived as having a certain political affiliation,” rejecting the government’s rebuttal that the dispute turned on proof of individuals being targeted and was merely about “policy priorities.” She pointed to agency RIF notices and OMB’s Lapse Memorandum indicating that programs “not in alignment with the President’s priorities” were treated as “Democrat-oriented,” underscoring the partisan framing. The court concluded that
“the agencies sharply depart from historical practice, unilaterally acting out President Trump’s and OMB Director Vought’s retaliatory and partisan ‘policy goal’ of punishing Democrat-oriented agencies amid a government shutdown.” (emphasis added).
59. Denial of November SNAP benefits “entirely ‘pretextual;’” an example of “unjustifiable partisanship”
Chief Judge John J. McConnell, Jr. (Obama appointee), Rhode Island State Council of Churches v. Rollins, 1:25-cv-00569 (D.R.I.)
This case involves a challenge to USDA’s October 2025 suspension of November SNAP benefits during the FY 2026 shutdown and its early termination of existing ABAWD work-requirement waivers, seeking declaratory and injunctive relief to set aside those actions and to compel the release of available contingency/Section 32 funds to pay November benefits and reinstate the waivers.
On Nov. 6, Judge McConnell granted the plaintiffs’ motion for a second TRO and ordered USDA to make full November SNAP payments by Nov. 7 using Section 32 and/or contingency funds, holding that the administration’s decision not to fully fund payments was likely “arbitrary and capricious” because, inter alia, it was “entirely ‘pretextual’” and undertaken for “partisan political purposes” (emphasis added).
He grounded that conclusion in two strands of evidence. First was USDA’s own public messaging: its website banner declared that “the well has run dry,” even though USDA’s 2019 guidance acknowledged that contingency funds can be used during a shutdown, and the banner was quietly removed after the Oct. 31 TRO. Second were President Trump’s statements, which shifted from saying it would “be my honor” to fund SNAP if directed by the court to insisting that “SNAP BENEFITS … will be given only when the Radical Left Democrats open up government … and not before!” Judge McConnell concluded:
“This Court is not naïve to the administration’s true motivations. … Far from being concerned with Child Nutrition funding, these statements make clear that the administration is withholding full SNAP benefits for political purposes. Such ‘unjustifiable partisanship’ has infected the USDA’s decision-making.” (citations omitted) (emphasis added).
The court also emphasized in the introductory discussion of its order:
“While the President of the United States professes a commitment to helping those it serves, the government’s actions tell a different story. Faced with a choice between advancing relief and entrenching delay, it chose the latter—an outcome that predictably magnifies harm and undermines the very purpose of the program it administers. Such conduct is more than poor judgment; it is arbitrary and capricious. One cannot champion the public interest while simultaneously adopting policies that frustrate it. Discretion exercised in this manner ceases to be discretion at all—it becomes obstruction cloaked in administrative formality.” (emphasis added).
(The defendants also filed a notice advising the district court that Congress had restored full FY 2026 SNAP funding and that USDA had directed state agencies to “take immediate steps to ensure households receive their full November allotments promptly.”)
60. Habeas Cases
These cases involve habeas corpus challenges arising from the Trump administration’s efforts to combat antisemitism and protest activity, together with broader matters involving immigration detention and removal
1) Judge Geoffrey W. Crawford (Obama appointee), Mahdawi v. Trump, 2:25-cv-00389 (D. Vt.)
On Apr. 30, Judge Crawford granted the petition for a writ of habeas corpus, ordering the petitioner released on his personal recognizance during the pendency of his habeas proceeding. The judge stated that “[the] evidence is sufficient for Mr. Mahdawi’s present purpose of raising a ‘substantial claim’ of First Amendment retaliation.”
On May 9, the Second Circuit denied the government’s appeal.
2) Judge Angel Kelley (Biden appointee), Ercelik v. Hyde, 1:25-cv-11007 (D. Mass.)
On May 8, ordering the petitioner’s immediate release, Judge Kelley found that “detention is contrary to the Government’s own policy initiatives” because the petitioner had proven not to be a flight risk in criminal proceedings and had bought an airline ticket to leave the country voluntarily. “It rises to the level of near absurdity that Respondents are working to deport many people quickly and at minimal expense to the American taxpayer, but absent an improper purpose, intend to extend Petitioner’s detention,” the court wrote. “The facts leading to Petitioner’s arrest point to a likelihood of success on the merits of his First Amendment retaliation claim,” Kelley concluded.
3) Judge Katherine M. Menendez (Biden appointee) Aditya Harsono v. Trump, 0:25-cv-01976 (D. Minn.)
On May 14, Judge Menendez granted a petition for a writ of habeas corpus, stating:
“[O]n this record, and with the showing made by Petitioner, it … likely indicates pretext, while the true reason for taking him into custody and detaining him during the ongoing removal proceedings is retaliation for his public expression of support for Palestinian human rights. … Accordingly, the Court finds that Mr. H has shown that he is in custody in violation of the First Amendment and is entitled to a writ of habeas corpus for his immediate release. … [T]he Court concludes that Mr. H prevails on his First Amendment retaliation claim.” (emphasis added).
4) Judge Michael E. Farbiarz (Biden appointee) Khalil v. Joyce, 2:25-cv-01963 (D.N.J.)
On May 28, Judge Farbiarz ruled in Mahmoud Khalil’s favor on the ground that removal for his political activity was unconstitutional, but also ruled that Khalil had not yet sufficiently disputed the second ground for his removal on failure to disclose information in his 2024 legal permanent resident application. “To prevail on a First Amendment–retaliation claim, the Petitioner would presumably need to show that the effort to remove him based on his alleged failure to disclose was caused by his First Amendment–protected activity,” the court wrote.
On Jun. 11, Farbiarz found:
“[I]t is overwhelmingly likely that the Petitioner would not be detained based solely on the lawful-permanent-resident application charge. Rather, the Court finds, the Petitioner’s detention almost surely flows from the charge that is based on the Secretary of State’s determination.” (emphasis added).
5) Judge Jerry W. Blackwell (Biden appointee) Mohammed H. v. Trump, 0:25-cv-01576 (D. Minn.)
On Jun. 17, Judge Blackwell granted the petition for a writ of habeas corpus, stating:
“Petitioner supplie[d] evidence of what caused the change in treatment: targeted speech retaliation in accordance with the Trump administration’s policies… these events appear to be reverse-engineered justifications for speech-based targeting and enforcement.” (emphasis added).
The court further noted:
“The record reflects a coordinated series of executive actions—retaliatory in focus, opaque in their justification, and deficient in process.” (emphasis added).
6) Judge Kymberly K. Evanson (Biden appointee), E.A. T.-B. v. Wamsley, 2:25-cv-01192 (W.D. Wash.)
On Aug. 19, granting a habeas petition and ordering the petitioner’s release after he was arrested by ICE agents immediately following an immigration-court hearing, Judge Evanson rejected the government’s post-hoc attempt to justify the arrest as based on alleged Alternatives to Detention (ATD) violations, noting that although the government “now asserts that ICE became aware of Petitioner’s alleged ATD violations (which occurred months earlier) a few hours before his immigration hearing,” the government’s attorney “did not raise the violations, nor argue that Petitioner should be detained for any reason” at that hearing, and that the petitioner was then given “multiple inconsistent justifications for his arrest,” such that, considering the timing and the government’s earlier decisions in his favor, these circumstances “raise concerns that Petitioner’s arrest was not in fact motivated by his ATD violations” (emphasis added).
Note: The above list excludes cases in which courts found the government engaged in unlawful retaliation but did not involve a judicial finding of pretextual rationale. Such cases include: Associated Press v. Budowich, 1:25-cv-00532 (D.D.C.) (Judge Trevor N. McFadden (Trump appointee)), stay granted in part by No. 25-5109 (D.C. Cir.); Ozturk v. Hyde, 2:25-cv-00374 (D. Vt.) (Judge William K. Sessions III (Clinton appointee); Suri v. Trump, 1:25-cv-00480 (E.D. Va.) (Judge Patricia T. Giles (Biden appointee)).
Chapter 3. Court Findings of “Arbitrary and Capricious” Administrative Action
Introduction
The opposite of following the rules and acting with procedural consistency—behavior that undergirds the presumption of regularity—is arbitrary and capricious decision-making under the Administrative Procedure Act (APA). See 5 U.S.C. 706(2)(A). In other words, since the presumption of regularity is based on the notion that agencies generally follow regular procedures, what happens if the baseline order of business is different? What if arbitrary and capricious conduct was instead widespread or pervasive? The application of the presumption would lose the basis for its support.
In this Chapter, we document 68 cases in which courts have held that the administration likely engaged in arbitrary and capricious conduct since Jan. 20, 2025. Although some readers might wonder whether, in theory, findings of arbitrary and capricious conduct may not always suggest agency irregularity in the relevant sense for the presumption of regularity, the excerpted court opinions below allow one to gauge the nature and gravity of these judicial findings.
Notably, this catalog of cases reflects only a subset of instances in which courts have found the government violated required administrative procedures. In other cases, courts have set aside administrative actions that were “not in accordance with law” or that occurred “without observance of procedure required by law.” See 5 U.S.C. 706(2)(A) & (D). In other words, the list below is arguably a conservative estimate of court findings of government wrongdoing.
The following list is in chronological order.
1. Judge Loren L. AliKhan (Biden appointee), National Council of Nonprofits v. Office of Management and Budget, 1:25-cv-00239 (D.D.C.)
Executive Action: OMB memo M-25-13 instituting a “temporary pause” of grants, loans, and assistance programs (memo cited a variety of relevant EOs).
On Feb. 3, Judge AliKhan granted plaintiffs’ request for a temporary restraining order to prevent OMB memo M-25-13 from having effect; on Feb. 25, Judge AliKhan entered a preliminary injunction. In the Feb. 3 TRO, she wrote:
“Defendants have offered no rational explanation for why they needed to freeze all federal financial assistance—with less than twenty-four-hours’ notice—to ‘safeguard valuable taxpayer resources.’ … Rather than taking a measured approach to identify purportedly wasteful spending, Defendants cut the fuel supply to a vast, complicated, nationwide machine—seemingly without any consideration for the consequences of that decision. To say that OMB ‘failed to consider an important aspect of the problem’ would be putting it mildly.” (citations omitted) (emphasis added).
In the Feb. 25 preliminary injunction, Judge AliKhan offered substantially similar reasoning, concluding:
The arbitrary-and-capricious review at this stage of the litigation remains largely unchanged from the court’s earlier opinion. The touchstone of this inquiry is rationality, and Defendants’ actions flunk that test. Defendants still cannot provide a reasonable explanation for why they needed to freeze all federal financial assistance in less than a day to ‘safeguard valuable taxpayer resources.’ …
In the simplest terms, the freeze was ill-conceived from the beginning. … Defendants’ actions were irrational, imprudent, and precipitated a nationwide crisis. Plaintiffs have therefore shown a likelihood of success on their arbitrary and capricious claim.” (citations omitted) (emphasis added).
Pending the government’s appeal to the D.C. Circuit, the district court stayed its preliminary injunction; under the current schedule, the appellant’s brief and appendix are due Sept. 19, the appellee’s brief is due Oct. 20, and the reply brief is due Nov. 10.
2. Judge John D. Bates (Bush appointee), Doctors for America v. Office of Personnel Management, 1:25-cv-00322 (D.D.C.)
Executive Action: Removal of information from HHS websites under Executive Order on “Gender Ideology Extremism“ (Executive Order 14168)
On Feb. 11, Judge Bates granted a temporary restraining order, stating:
“The Court agrees that DFA has demonstrated a likelihood of success on the merits as to this claim. By removing long relied upon medical resources without explanation, it is likely that each agency failed 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’. Hand in hand with the lack of explanation, it is also likely that the agencies ‘failed to consider’ the ‘important’ issue of the substantial reliance by medical professionals on the removed webpages. Ramachandran and Liou attest that they ‘rely on webpages and datasets’ from the CDC and FDA ‘to do [their] work’ … Medical providers’ widespread and routine reliance on information is an identified and adequately alleged reliance interest. DFA has thus shown a substantial likelihood of success on the merits as to its claims that CDC, HHS, and FDA acted arbitrarily and capriciously in removing the webpages.” (citations omitted) (emphasis added).
After the TRO expired on Feb. 25, plaintiffs filed an expedited motion for summary judgment (with a preliminary-injunction request) to secure merits relief on the legality of the OPM Memo and HHS Guidance—the same directives at the heart of the TRO. Granting in part the motion for summary judgment (and denying as moot the preliminary injunction request), Judge Bates wrote:
“Considering the scant administrative record, the answer here is clear: neither the OPM Memo nor the HHS Guidance was the product of reasoned decisionmaking. … The E.O. itself thus does not provide a reasoned explanation for these specific actions by the agencies. …
But common sense dictates there are numerous ways to remove an offending word or statement without rescinding the entire webpage. Why did the agencies choose this route? The OPM Memo, HHS Guidance, and administrative record are again silent. Similarly, although the defendants stated an intent to modify some of the removed webpages, there is silence as to why the agencies chose to remove the webpages pending mere modification. …
The defendants have not explained their decisionmaking, and from the sparse administrative record it cannot ‘reasonably be discerned.’ …
The defendants engendered the plaintiffs’ substantial reliance on the webpages and datasets. The APA thus required the defendants to weigh that reliance against competing policy concerns before adopting removal policies. … Because the defendants admittedly failed to do so, the OPM Memo and HHS Guidance were yet again arbitrary and capricious. …
The defendants’ actions were ill-conceived from the beginning. Rather than taking a measured approach to harmonizing the HHS defendants’ public-facing webpages with the Gender Ideology E.O., considering their other statutory obligations, and ascertaining and weighing the obvious reliance interests—which the E.O. left the agencies time to do—the defendants instead adopted policies of ‘remove first and assess later’ that failed to consider multiple important aspects of the situation. … In fact, the administrative record is devoid of reasoning generally, save a handful of references to the E.O. and the OPM Memo. The APA requires more. … A court must consider whether the evidence in the administrative record permitted the agency to make the decision it did, … and here the evidence did not. For these reasons, the OPM Memo and HHS Guidance were arbitrary and capricious and thus violated the APA. (citations omitted) (emphasis added).
3. Judge Amir Ali (Biden appointee), AIDS Vaccine Advocacy Coalition v. United States Department of State, 1:25-cv-00400 (D.D.C.)
Executive Action: Dismantling of USAID (Executive Order 14169) (State Dept stop-work order)
On Feb. 13, Judge Ali issued a temporary restraining order, stating:
“There has been no explanation offered in the record, let alone a ‘satisfactory explanation … including a rational connection between the facts found and the choice made,’ as to why reviewing programs—many longstanding and taking place pursuant to contractual terms— required an immediate and wholesale suspension of appropriated foreign aid. Plaintiffs have also shown that implementation of the blanket suspension is likely arbitrary and capricious given the apparent failure to consider immense reliance interests, including among businesses and other organizations across the country. No aspect of the implemented policies or submissions offered by Defendants at the hearing suggests they considered and had a rational reason for disregarding the massive reliance interests of the countless small and large businesses that would have to shutter programs or shutter their businesses altogether and furlough or lay off swaths of Americans in the process. In their implementation of the blanket suspension of foreign aid, Defendants accordingly appear to have ‘entirely failed to consider an important aspect of the problem.’”(emphasis added).
On Mar. 10, the court granted in part a preliminary injunction, reaffirming its TRO conclusion that plaintiffs were likely to succeed on their APA challenge to the original blanket suspension. Judge Ali wrote that it “continues to be true with respect to the original implementing directives” that “Defendants’ implementation of a blanket suspension of congressionally appropriated foreign aid pending review was arbitrary and capricious.” He continued:
“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. …
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. …
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 APA claims as they relate to the original directives implementing a blanket suspension of aid.” (emphasis added).
Update 1 (Oct. 15, 2025):
On Sept. 3, Judge Ali issued a new order granting a preliminary injunction after plaintiffs filed an amended complaint on May 2. He stated:
“The Court previously concluded in granting a TRO and later a preliminary injunction that Defendants’ blanket determination to freeze foreign aid funds was likely arbitrary and capricious. … The same is true of the agency Defendants’ decision to simply not spend billions of dollars in congressionally appropriated foreign aid across numerous categories and instead let those funds expire. Defendants have not offered any explanation for the decision to ignore billions of dollars in appropriated funds rather than obligate them in a manner that aligns with both Congress’s stated purposes and the Executive’s priorities. Nor do Defendants appear to have considered the reliance interests of Plaintiffs and other organizations, or the beneficiaries of their services, who have relied on the agencies’ longstanding policies and practices.” (emphasis added).
After both Judge Ali and the D.C. Circuit denied stays of the Sept. 3 PI, the Supreme Court, in a 6–3 decision on Sept. 26, granted the administration’s application to stay the PI pending the D.C. Circuit appeal, finding that “at this early stage, [the government] has made a sufficient showing that the Impoundment Control Act precludes respondents’ suit, brought pursuant to the Administrative Procedure Act, to enforce the appropriations at issue here.”
4. Judge Jeannette A. Vargas (Biden appointee), State of New York v. Trump, 1:25-cv-01144 (S.D.N.Y.)
Executive Action: Disclosure of personal and financial records to DOGE
On Feb. 21, Judge Vargas issued a preliminary injunction, stating:
“Based upon the factual record developed to date, the Court finds that Plaintiffs will more likely than not succeed in establishing that the agency’s processes for permitting the Treasury DOGE Team access to critical BFS payment systems, with full knowledge of the serious risks that access entailed, was arbitrary and capricious.” (emphasis added).
5. Judge William Haskell Alsup (Clinton appointee), American Federation Of Government Employees, AFL-CIO v. Office of Personnel Management and Charles Ezell, 3:25-cv-01780 (N.D. Cal.)
Executive Action: Large-scale reductions in force / Termination of probationary employees (Executive Order 14210)
On Feb. 28, Judge Alsup issued an amended temporary restraining order, finding:
“Plaintiffs are also likely to show that the OPM directive was an arbitrary and capricious action. . . . The key fact here is that the template letters sent from OPM to the directed agencies stated: ‘[T]he Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest.’ First, it is unlikely, if not impossible, that the agencies themselves had the time to conduct actual performance reviews of the thousands terminated in such a short span of time. It is even less plausible that OPM alone managed to do so. In at least one instance, a terminated scientist had received a glowing review… five days before he was terminated ‘for [his] performance.’ ‘Reliance on facts that an agency knows are false at the time it relies on them is the essence of arbitrary and capricious decisionmaking.’” (citations omitted) (emphasis added).
On Mar. 13, Judge Alsup granted plaintiffs’ request for a preliminary injunction, stating: “OPM’s ultra vires directive is likely to constitute an unlawful final agency action that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ ‘in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,’ and ‘without observance of procedure required by law.’” Defendants filed an ex parte motion to stay the injunction pending appeal to the Ninth Circuit, but Judge Alsup denied the motion, and the Ninth Circuit further denied the request for an administrative stay on Mar. 17. However, on Apr. 8, the Supreme Court granted the requested stay on the basis of standing. On Apr. 18, Judge Alsup granted another preliminary injunction, applying the original preliminary injunction to new union plaintiffs, under an unspecified provision of the APA (“OPM’ directive constituted an ultra vires act that infringed upon all impacted agencies’ statutory authority to hire and fire their own employees… No statute — anywhere, ever — has granted OPM the authority to direct the termination of employees in other agencies”).
On Jun. 5, plaintiffs filed a motion for summary judgment, leading defendants to also cross-move for summary judgment on Jul. 3. On Sept. 12, Judge Alsup granted plaintiffs’ motion, holding:
“The OPM directive was arbitrary and capricious: It directed the termination of over 25,000 probationers across the federal government ‘based on [their] performance’ pursuant to Sections 315.803 and 315.804 without any consideration of actual performance or conduct, or any ‘rational connection between the facts found and the choice made.’ The record contains repeated, unequivocal direction to agencies that ‘agencies must identify performance or conduct deficiencies in the notice terminating a probationer’. The record does not contain a single
mention of any performance deficiency on the part of any probationer terminated pursuant to
OPM’s directive. Even where OPM granted agencies’ pleas for exemptions, it provided ‘no explanation at all’ for doing so… OPM lacked the authority to direct other agencies to terminate their probationary employees and violated the APA when it did so.”
6. Judge Jamal N. Whitehead (Biden appointee), Pacito v. Trump, 2:25-cv-00255 (W.D. Wash.)
Executive Action: Suspension of the U.S. Refugee Admissions Program (Executive Order No. 14163) and Refugees Funding Suspension (Dept. of State Notice)
On Feb. 28, Judge Whitehead issued a preliminary injunction preventing the suspension of the Refugee Admissions Program:
“The Agency Defendants provided no explanation whatsoever for these substantive expansions of the USRAP EO. They did not, as is required under arbitrary-and-capricious review, acknowledge, let alone meaningfully consider, the reliance interests of refugees, U.S. citizens, and resettlement nonprofits harmed by their actions. Nor did they articulate any consideration of alternative options—such as the implementation of a case-by-case admissions system at the discretion of the Secretaries of State and Homeland Security—that might mitigate the harms of the Agency Suspension. Instead, they merely cite the USRAP EO as a justification for their actions. But the USRAP EO—which is itself unlawful—cannot, on its face, explain the Agency Defendants’ discretionary expansions of the USRAP EO.
The Refugee Funding Suspension likewise went far beyond the text of the Foreign Aid EO that it purported to implement. … [The] EO calls only for a pause in ‘foreign development assistance’ and says nothing about USRAP, refugee case processing, or refugee services. Nevertheless, the Agency Defendants, with no explanation, construed the Foreign Aid EO as requiring the total suspension of all funding for USRAP operations— including, contrary to reason, funding for domestic refugee resettlement support. …
As with the Agency Suspension, the Agency Defendants provided no reasoned explanation for the Refugee Funding Suspension. … Secretary Rubio issued the Suspension Notices because USRAP-related funding ‘is appropriated under the ‘Migration and Refugee Assistance’ (MRA) heading of title III of the Department of State, Foreign Operations, and Related Programs Appropriations Act (SFOAA)”—which was paused in response to the Foreign Aid EO. This is no explanation at all. Defendants effectively concede that Secretary Rubio discretionarily halted USRAP funding yet give no insight into the reasons for that decision. Nor did the Agency Defendants apparently consider reasonable alternatives. …
Additionally, the State Department did not acknowledge the apparent deviation from its own regulations implementing the Refugee Act… Those regulations expressly provide that ‘[p]ayments for allowable costs must not be withheld … unless required by Federal statute, regulations, or’ if ‘[t]he recipient … has failed to comply with the terms and conditions of the Federal award’ or ‘is delinquent in a debt to the United States.’ None of those conditions appear to be met here.
In sum, the Court finds that the Plaintiffs are likely to prove that the Agency Suspension and the Refugee Funding Suspension are arbitrary and capricious and must therefore be set aside under the APA.” (citations omitted) (emphasis added).
On March 24, the Judge Whitehead granted the plaintiffs’ supplemental preliminary injunction after the State Department responded to the Feb. 28 PI by issuing one-page notices terminating the resettlement agencies’ cooperative agreements as “no longer effectuat[ing] agency priorities.” In granting that relief, Judge Whitehead found the mass terminations—which dismantled USRAP infrastructure—lacked any reasoned explanation and were likely arbitrary and capricious, and it enjoined the terminations and ordered the agreements reinstated. Judge Whitehead wrote:
“The Court finds strong evidence that the Funding Termination is arbitrary and capricious. Most fundamentally, DOS provided no factual findings or bases for its termination decisions, making it impossible to ‘articulate[] a rational connection between the facts [it] found and the choice [it] made.’ … This marks the Funding Termination as arbitrary and capricious because it constitutes a shift in agency policy without any reasoned explanation.
The Government has failed to show that the Agency Defendants ever assessed the reliance interests they engendered through their longstanding USRAPinfrastructure and standard USRAP practices. Nor has the Government shown that the Agency Defendants ‘weigh[ed] any such interests against competing policy concerns,’ … or that they considered alternatives to the Funding Termination that fell ‘within the ambit of existing [policy].’” (citations omitted) (emphasis added).
7. Judge Angel Kelley (Biden appointee), Commonwealth of Massachusetts v. National Institutes of Health, 1:25-cv-10338 (D. Mass.) consolidated with Association of American Medical Colleges v. National Institutes of Health, 1:25-cv-10340 (D. Mass.) and Association of American Universities, et al. v. Department of Health and Human Services, 1:25-cv-10346 (D. Mass.)
Executive Action: Reduction of indirect cost reimbursement rate for research institutions (NIH Guidance) (DOE Rate Cap Policy, Apr. 11, 2025)
On Mar. 5, Judge Kelley ruled that a preliminary injunction should be issued to prevent the reduction, stating:
“[T]he explanations for the cap of 15% on ICRs are insufficient, and thus the Rate Change Notice is arbitrary and capricious, for two reasons.
First, the explanations are conclusory. … As described above, NIH failed to provide any reasoning, rationale, or justification at all. It claims that more funds will go to direct research but fails to address how the money will actually be directed to cover direct costs and how that research will be conducted absent the necessary indirect cost reimbursements provided by the federal government. This is particularly true considering the number of universities and associations that have made clear that research will have to be cut, as other funding sources will not be able to make up the shortfall. … NIH asserts the Rate Change Notice will bring the ICRs in line with private foundations, providing no explanation for this choice in light of the fact that private organizations, like the Gates Foundation, are ‘more expansive than NIH in defining direct costs, meaning some overhead payments are wrapped in with the grant.’ … The failure to provide any type of reasoning renders the Rate Change Notice arbitrary and capricious. …
Second, NIH’s proffered ‘reasons’ fail to grapple with the relevant factors or pertinent aspects of the problem and fails to demonstrate a rational connection between the facts and choice that was made. … As the reasons in the Rate Change Notice are both conclusory and fail to grapple with the necessary factors, facts, and pertinent aspects of the problem demanded by this change from the existing ICR negotiation process, the Plaintiffs are likely to succeed in their claims that the Rate Change Notice is arbitrary and capricious.” (emphasis added)
After the Mar. 5 PI, defendants—with the plaintiffs’ assent—moved to convert that order into a permanent injunction, telling the court there were no remaining factual or legal disputes and that conversion would allow prompt appellate review. Judge Kelley granted the motion on Apr. 4, entered a nationwide permanent injunction and vacated the NIH Guidance (finding the guidance unlawful, including as arbitrary and capricious).
The defendants appealed the permanent injunction on April 8, with oral argument currently scheduled for Nov. 5.
8. Judge John James McConnell, Jr. (Obama appointee), State of New York v. Trump, 1:25-cv-00039 (D.R.I.)
Executive Action: “Temporary Pause” of grants, loans, and assistance programs
On Mar. 6, Judge McConnell issued a preliminary injunction on the executive freeze of federal funds, stating:
“The Court finds that the Defendants have not provided a rational reason that the need to ‘safeguard valuable taxpayer resources’ is justified by such a sweeping pause of nearly all federal financial assistance with such short notice. Rather than taking a deliberate, thoughtful approach to finding these alleged unsubstantiated ‘wasteful or fraudulent expenditures,’ the Defendants abruptly froze billions of dollars of federal funding for an indefinite period. It is difficult to perceive any rationality in this decision—let alone thoughtful consideration of practical consequences—when these funding pauses endanger the States’ ability to provide vital services, including but not limited to public safety, health care, education, childcare, and transportation infrastructure. … Thus, the States have substantiated a likelihood of success of proving that the Agency Defendants’ implementation of the funding freeze was arbitrary and capricious.” (emphasis added)
9. Judge Julie R. Rubin (Biden appointee), American Association of Colleges for Teacher Education v. Carter, 1:25-cv-00702 (D. Md.)
Executive Action: Ban on DEIA initiatives in the executive branch and by contractors and grantees (Executive Order 14168, Executive Order 14151, Executive Order 14173)
On Mar. 17, Judge Rubin issued a preliminary injunction on the ban, stating:
“[The grant termination decisions] are likely to be provenarbitrary and capricious, because the Department’s action was unreasonable, not reasonably explained, based on factors Congress had not intended the Department to consider (i.e., not agency priorities), and otherwise not in accordance with law.”
On Apr. 10, the 4th Cir. granted a stay of the PI pending the government’s appeal.
10. Judge Ellen Lipton Hollander (Obama appointee), American Federation of State, County and Municipal Employees, AFL-CIO v. Social Security Administration, 1:25-cv-00596 (D. Md.)
Executive Action: Disclosure of personal and financial records to DOGE
On Mar. 20, Judge Hollander issued a temporary restraining order preventing DOGE from accessing SSA system data, writing:
“As discussed, defendants have not provided the Court with a reasonable explanation for why the DOGE Team needs access to the wide swath of data maintained in SSA systems in order to root out fraud and abuse. … [D]efendants disregarded protocols for proper hiring, onboarding, training, and access limitations, and, in a rushed fashion, provided access to a massive amount of sensitive, confidential data to members of the DOGE Team, without any articulated explanation for the need to do so. …
Plaintiffs are likely to succeed on a claim that the conduct at issue was unreasonable and capricious. Plaintiffs have therefore shown a likelihood of success on their arbitrary and capricious claim.”
Plaintiffs have therefore shown a likelihood of success on their arbitrary and capricious claim.”
On Apr. 17, she further issued a preliminary injunction preventing DOGE team members from accessing data, stating reasoning very similar to her TRO:
“As discussed, defendants have not provided the Court with a reasonable explanation for why the entire DOGE Team needs full access to the wide swath of data maintained in SSA systems in order to undertake the projects. … [D]efendants ran roughshod over SSA protocols for proper hiring, onboarding, training, and, most important, access limitations and separation of duties. …
SSA hastily provided access to an enormous quantity of sensitive, confidential data to members of the DOGE Team, without meaningful explanation for why these members needed access to PII to perform their duties. Indeed, the Administrative Record is rife with examples of ambiguous explanations for why DOGE Team members sought access to PII. Not once did Dudek inquire further into why this access is needed. Nor did he ever reject any request for access. …
Plaintiffs are likely to succeed on a claim that the conduct at issue was unreasonable and capricious. Plaintiffs have therefore shown a likelihood of success on their arbitrary and capricious claim under the APA.”
On June 6, the Supreme Court stayed Judge Hollander’s preliminary injunction pending appeal, and on Aug. 13, the district court stayed further proceedings while the Fourth Circuit considered the appeal.
11. Judge Edward M. Chen (Obama appointee), National TPS Alliance v. Noem, 3:25-cv-01766 (N.D. Cal.)
Executive Action: DHS Revocation of Temporary Protected Status (TPS)
On Mar. 31, Judge Chen granted the plaintiffs’ § 705 motion to postpone. The court found the vacatur of Venezuelan TPS likely arbitrary and capricious because (1) it rested on “legal (as well as factual) error”—the Mayorkas extension was not “novel,” caused no undue confusion, and complied with § 1254a; (2) DHS failed to consider obvious alternatives “within the ambit of the existing policy,” including simply de-consolidating the registration and keeping the 2021 and 2023 tracks separate; and (3) the record—including the government’s admissions at argument—showed the real aim was to undo the Mayorkas extension rather than to alleviate “confusion.”
On May 19, the Supreme Court stayed that order while the government appealed. The Ninth Circuit ultimately affirmed Judge Chen’s preliminary order.
On Sept. 5, Judge Chen granted summary judgment for the plaintiffs and denied the government’s motions to dismiss. The court held that the Secretary lacked (and, in any event, exceeded) statutory authority to vacate prior TPS extensions/redesignations—specifically the Venezuela vacatur and the Haiti partial vacatur—and that those vacaturs were arbitrary and capricious because, inter alia, they were “preordained,” undertaken without meaningful inter-agency consultation or contemporaneous country-conditions review, and supported by rationales that failed to demonstrate reasoned agency decision-making or any factual or legal basis. As to the termination of Venezuela’s TPS, the court held the action was unlawful because it rested on the unlawful vacatur and was arbitrary and capricious for failure to engage in meaningful consultation and to explain the reversal of established DHS practice.
Regarding the Venezuela vacatur, Judge Chen wrote:
“[T]here is no factual or legal support for the Secretary’s asserted reason for the vacatur. …
[T]he Secretary failed to consider alternatives short of vacatur when she revoked the Mayorkas extension. … And the context demonstrates she had no interest in doing so. …
According to Plaintiffs, this action was arbitrary and capricious because the Secretary failed to consider reliance interests, interests which the panel in this case recognized. The Court agrees. …
Finally, the Secretary’s decision to vacate was arbitrary and capricious because it was pretextual – i.e., it was not animated by a concern about, e.g., novelty or confusion as professed, nor was it otherwise the result of reasoned agency decision making. Instead, the Secretary – acting with unprecedented haste and in an unprecedented manner – issued the vacatur for the preordained purpose of expediting termination of Venezuela’s TPS. …
The pretextual nature of Secretary’s asserted rationale for the vacatur is demonstrated by the fact that her criticism of Secretary Mayorkas’s extension and the alleged confusion it caused was entirely baseless as noted above. And there is no evidence of any reasoned decision making behind Secretary Noem’s vacatur. The failure to consult with agencies in regard to the termination decision which ensued immediately after the vacatur – a failure which was highly unusual and unprecedented (as discussed below) – further evinces the pretextual nature of Secretary Noem’s purported rationale for the vacatur.”
“The Secretary lacked the authority to partially vacate and/or exceeded her authority to vacate. Even if she had statutory authority to vacate, the decision to partially vacate was arbitrary and capricious.”
Regarding the termination of Venezuelans’ TPS, Judge Chen wrote:
“[D]emonstrates not only a failure to engage in a meaningful consultation with government agencies but also a failure to conduct a meaningful country conditions review, a rudimentary element of the consultation contemplated by the statute. …
Furthermore, Secretary Noem’s decision-making was arbitrary and capricious because it reversed DHS’s established practices for TPS decision-making, as described in the 2020 GAO TPS Report, without providing any explanation for that reversal. …
Here, Secretary Noem has not provided any explanation for her reversal of established practices on TPS decision-making. …
[N]o genuine dispute that her subsequent decision to terminate was unlawful and/or arbitrary and capricious because the Secretary failed to engage in a meaningful consultation with government agencies or explain her reversal of well-established agency practice.”
The court also found the Secretary’s partial vacatur of Haiti’s TPS designation arbitrary and capricious because, inter alia, the stated rationales do not “reflect reasoned agency decision making”; the vacatur was “preordained without any meaningful analysis and review” and “made without consultation with government agencies or country conditions review;” there was “no contemporaneous country conditions report” for the Haiti partial vacatur—only a Biden-era report that “supported the Mayorkas extension/redesignation.” “Simply put,” the court wrote, “in deciding to partially vacate the TPS extension, Secretary Noem had no regard for the facts and actual conditions.”
On Oct. 3, the Supreme Court stayed Judge Chen’s Sept. 5 order insofar as it set aside the Venezuela vacatur and termination, pending resolution of the government’s appeal in the Ninth Circuit.
12. Judge Mary Susan McElroy (Trump appointee), State of Colorado v. U.S. Department of Health and Human Services, 1:25-cv-00121 (D.R.I.)
Executive Action: Termination of public health grants
On Apr. 5, Judge McElroy granted the plaintiffs’ request for a TRO, stating:
“For starters, the mass termination of funding was likely not substantively reasonable. … As the States explain, Congress had already rescinded plenty of COVID-era public health spending in 2023. … But ‘Congress chose not to rescind the funding for the grants and cooperatives agreements at issue in this case.’ …
It is well-established that in the interpretation of statutes, the express mention of one thing is the exclusion of others. … So Congress’s decision to eliminate some COVID-era public health measures but leave alone the funding at issue here presumably signals its intent to continue that funding. … With that in mind, the Court struggles to see how HHS, an agent of the Executive, can exercise discretion to eliminate ten billion dollars’ worth of it summarily. …
Nor does it seem that the mass terminations were reasonably explained. The Court struggles to see the requisite ‘rational connection between the facts found and the choice made.’ … The States had no reason to expect that the already-allocated grant money would suddenly be terminated, and they relied on this funding to support their public health programs and initiatives. Of course, agencies ‘are free to change their existing policies,’ but they must ‘provide a reasoned explanation for the change,’ ‘display awareness that [they are] changing position,” and consider ‘serious reliance interests.’ … The termination notices provided to the States on March 24 and 25 failed to provide a reasoned explanation for the sudden change in its position or consider the States’ reliance interests, which are substantial under the circumstances.
The States have thus demonstrated a strong likelihood of success on their claim that these terminations were arbitrary and capricious in violation of the APA.” (citations omitted) (emphasis added).
On May 16, Judge McElroy granted the plaintiffs’ motion for a preliminary injunction, stating:
“Merely relying on a conclusory explanation that the funds are no longer necessary because the pandemic is over does not demonstrate a ‘rational connection between the facts found and the choice made.’ … The Government’s determination was unreasonable in light of Congress’s direction that the appropriations at issue be used beyond the pandemic and to better prepare for future public health threats. …
Given Congress’s clear intent to keep the appropriations at issue intact, the Court cannot say HHS provided any rational basis to justify its decision to terminate the funds based on the end of the pandemic. That is sufficient to end the analysis, but to be thorough, the Court will address additional “arbitrary and capricious” arguments. …
[T]he determination that funding appropriated by Congress is no longer necessary requires an assessment of the grantees’ compliance with the agreements, which HHS declined to do. … And based on its own interpretations, HHS may terminate awards “for cause” when a party has failed to comply with the terms and conditions of the grant under § 75.372(a). There is no evidence that happened here. …
While HHS acknowledged its change of position, it provided no explanation to the States as to why it did so suddenly and contrary to Congress’s will that certain COVID-era spending was needed beyond the immediate public health emergency that ended in May 2023. …
HHS’ Public Health Funding Decision was arbitrary and capricious because it failed to consider the States’ reliance interests on the funds and the devastating consequences that would result from abruptly terminating critical public health appropriations. … Indeed, it appears HHS gave no consideration to the programs and services that would be impacted by these terminations when it decided the funds were no longer necessary based on the end of the pandemic. …
The Court agrees that HHS acted arbitrarily and capriciously when it applied ‘for cause’ terminations here because contrary to statutory and regulatory authority, HHS never claimed any failure on part of the States to comply with their grant agreements. …
Once again, the States have demonstrated a strong likelihood of success on their claim that these terminations were arbitrary and capricious in violation of the APA.” (citations omitted) (emphasis added).
13. Judge Mary Susan McElroy (Trump appointee), Woonasquatucket River Watershed Council v. Department of Agriculture, 1:25-cv-00097 (D.R.I.)
Executive Action: Unleashing American Energy (Exec. Order No. 14154); Ending Radical and Wasteful Government DEI Programs and Preferencing (Executive Order 14151); Implementing the President’s “Department of Government Efficiency” Cost Efficiency Initiative (Executive Order 14222)
On April 15th, Judge McElroy granted plaintiffs’ motion for a preliminary injunction, holding that the plaintiffs
“have adequately shown at least three ways that the sudden, indefinite freeze of all already awarded IIJA and IRA money was arbitrary and capricious: it was neither reasonable nor reasonably explained, and it also failed to account for any reliance interests. …
The Court finds that the Government failed to provide a rational reason that the need to ‘safeguard valuable taxpayer resources’ justifies a sweeping pause of all already-awarded IIJA and IRA funds with such short notice. …
‘The APA requires a rational connection between the facts, the agency’s rationale, and the ultimate decision.’ … Here, there is none. …
The Government also ignored significant reliance interests. … Nothing from OMB, the NEC Director, or the five Agency Defendants shows that they considered the consequences of their broad, indefinite freezes: projects halted, staff laid off, goodwill tarnished. … Instead, they ‘essentially adopted a ‘freeze first, ask questions later’ approach.’” (citations omitted) (emphasis added).
14. Judge Tanya Sue Chutkan (Obama appointee), Climate United Fund v. Citibank , 1:24-cv-00698 (D.D.C.) (and consolidated cases)
Executive Action: Denial of federal grants
On Apr. 15, Judge Chutkan granted the plaintiffs’ motion for a preliminary injunction. An Apr. 16 accompanying memorandum opinion stated:
“Plaintiffs are likely to succeed on the merits of their APA claims because EPA acted arbitrarily and capriciously when it failed to explain its reasoning and acted contrary to its regulations in suspending and terminating Plaintiffs’ grants. …
The court finds that EPA failed to set forth the reasons for its decision because it did not say anything about its decision, for weeks. …
Though repeatedly pressed on the issue, EPA offers no rational explanation for why it suspended the grants and then immediately terminated the entire NCIF and CCIA grant programs overnight. Nor has EPA offered any rational explanation for why it needed to cancel the grants to safeguard taxpayer resources, especially when it had begun examining the grant programs to add oversight mechanisms, or why it needed to cancel every single grant to review some aspects of the GGRF program with which it was concerned. …
In the letters terminating the grant programs, EPA provided no individualized reasoning as to anything Plaintiffs themselves did—instead referencing generalized and unsubstantiated reasons for termination—’substantial concerns regarding program integrity, the award process, programmatic fraud, waste, and abuse, and misalignment with the Agency’s priorities.’ …
EPA Defendants’ actions defy the plain language of the regulations that govern its decision-making in grant funding—it can only terminate a federal award on this basis pursuant to the terms and conditions of the federal award.” (citations omitted) (emphasis added).
On Sept. 2, the D.C. Circuit vacated the preliminary injunction and remanded, holding that the APA/regulatory challenges—including the district court’s “arbitrary and capricious” rationale—are “essentially contractual” and must be brought in the Court of Federal Claims. Notwithstanding, the PI formally remains in place until the mandate issues; the D.C. Circuit has withheld the mandate through the rehearing deadline (Oct. 17, 2025) and for seven days thereafter (Oct. 24, 2025), unless a timely petition is filed.
15. Judge Deborah L. Boardman (Biden appointee), State of Maryland v. Corporation for National and Community Service, 1:25-cv-01363 (D. Md.)
Executive Action: Dismantling AmeriCorps (Executive Order 14222 – Implementing the President’s “Department of Government Efficiency“ Cost Efficiency Initiative) (Goodson Memorandum and cover note Apr. 15, 2025)
On Jun. 5, Judge Boardman granted a preliminary injunction restoring AmeriCorps programs, finding:
“The termination of AmeriCorps grants and programs, the exiting of AmeriCorps members, and the removal of NCCC members constitute ‘significant changes to . . . service delivery.’ By law, the agency could only make those changes through public notice-and-comment rulemaking. Because the agency did not do so, the States have shown a likelihood of success that the agency actions were contrary to law, arbitrary and capricious, and without observance of procedures required by law, in violation of the APA.”
16. Judge Royce C. Lamberth (Reagan appointee), Abramowitz v. Lake, 1:25-cv-00887 (D.D.C.) and Widakuswara v. Lake, 1:25-cv-01015 (D.D.C.) (related cases)
Executive Action: Governance and Defunding Global Media and Global Internet Freedom (Executive Order 14238 – Continuing the Reduction of the Federal Bureaucracy)
On Apr. 22, Judge Lamberth granted in part a preliminary injunction in Widakuswara—which also applied to the related Abramowitz case. He wrote:
“In short, the defendants had no method or approach towards shutting down USAGM that this Court can discern. They took immediate and drastic action to slash USAGM, without considering its statutorily or constitutionally required functions as required by the plain language of the EO, and without regard to the harm inflicted on employees, contractors, journalists, and media consumers around the world. It is hard to fathom a more straightforward display of arbitrary and capricious actions than the Defendants’ actions here.” (emphasis added).
In May, defendants appealed prongs (1) and (2) of the injunction; the D.C. Circuit later dissolved its stay of prong (2) but left prong (1) stayed pending appeal. Oral argument took place on Sept. 22.
Update 1 (Oct. 15, 2025):
In his Sept. 29 memorandum order enforcing the preliminary injunction, Judge Lamberth found that defendants had “thumb[ed] their noses at Congress’s commands” and offered answers “dripping with indifference to their statutory obligations,” and that some of Kari Lake’s responses during her deposition testimony were “the height of arbitrariness.” The court further noted that “the defendants still have not provided the Court a non-arbitrary justification for the proposed reduction in force. Instead, the record remains ‘a total explanatory void’” (citation omitted) (emphasis added).
17. Judge William Horsley Orrick III (Obama appointee), City and County of San Francisco v. Donald J. Trump, 3:25-cv-01350 (N.D. Cal.)
Executive Action: Immigration Policy on sanctuary cities and states (Executive order 14159)
On Apr. 24, Judge Orrick granted a preliminary injunction, holding that “the Bondi Directive’s order to freeze all DOJ funds is likely arbitrary and capricious.”
On May 3, the court issued a further order regarding its Apr. 24 preliminary injunction, stating that it was setting out its reasoning in greater detail, confirming the injunction’s scope, and explaining why the challenged directives likely violate the APA as arbitrary and capricious:
“[T]he Bondi Directive fails to offer a reasonable explanation of the breadth of funding withheld or the basis for withholding funds that Congress has already appropriated. …
The Government has not offered a plausible reason for why a total freeze on all DOJ funding is necessary to advance the 2025 Executive Orders. Nothing in the record before me suggests that the Attorney General considered the Cities and Counties’ reliance on the threatened federal funding before issuing the freeze, their expectation of reimbursement for funds already appropriated, or their need for clarity about what funding will be available in the future to support critical services and infrastructure; all this is required given the Bondi Directive’s reversal of prior DOJ policy that ‘engendered serious reliance interests.’ … This is enough for the plaintiffs to show they are likely to prevail on the merits of their APA claim, at least to the extent that they allege defendant Attorney General Bondi violated 5 U.S.C. § 706(2)(A).” (citations omitted) (emphasis added).
18. Judge Royce C. Lamberth (Reagan appointee), Radio Free Asia v. United States, 1:25-cv-00907 (D.D.C.) and Middle East Broadcasting Networks v. United States, 1:25-cv-00966 (D.D.C.) (consolidated cases)
Executive Action: Governance and Defunding Global Media and Global Internet Freedom (Executive Order 14238 – Continuing the Reduction of the Federal Bureaucracy)
On Apr. 25, the district court held that the plaintiffs were “likely to succeed on the merits” for “substantially the same reasons raised in Plaintiffs’ memoranda,” which included a claim of arbitrary and capricious conduct.
On May 3, the D.C. Circuit stayed the preliminary injunction pending appeal. Oral argument is set for Sept. 22.
[See also Judge Lamberth’s Apr. 22 opinion explicating his views on arbitrary and capricious conduct in Abramowitz. v. Lake, 1:25-cv-00887 (D.D.C.) and Widakuswara v. Lake, 1:25-cv-01015 (D.D.C.)]
19. Judge Victoria Calvert (Biden appointee), Jane Doe 1 v. Bondi, 1:25-cv-01998 (N.D. Ga.)
Executive Action: ICE modified plaintiffs’ SEVIS (Student and Exchange Visitor Information System) records
On May 2, Judge Calvert granted plaintiffs’ motion for a preliminary injunction on modifications to their SEVIS status, stating:
“Defendants have not been able to articulate, clearly or otherwise, any reason why Plaintiffs’ SEVIS records were terminated beyond the vague language provided in the notice given through SEVP. When asked whether Defendants could provide the Court with any additional information about what actually happened with Plaintiffs’ SEVIS records, Defendants conceded that they could not complete the necessary factfinding to determine what took place as to each individual Plaintiff, or even as to the entire group of Plaintiffs. Further, Defendants’ briefing fails to identify any regulation to support DHS’s ability to terminate Plaintiffs’ SEVIS record in the manner it was done here.
Defendants have altogether failed to suggest any lawful grounds for termination of Plaintiffs’ SEVIS record. … Defendants’ failure to provide a single plausibly lawful explanation for its action is the exact circumstance contemplated by the arbitrary and capricious standard. … Accordingly, Plaintiffs are likely to prevail on the claim that the agency action is arbitrary and capricious for failing to articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. …
The Court concludes that Plaintiffs are likely to show that DHS’s authority to terminate F-1 student status is narrowly circumscribed by regulation to three circumstances … And since none of those conditions are applicable here, Plaintiffs are likely to show that Defendants’ termination of their SEVIS records and F-1 status was not in compliance with 8 C.F.R. § 214.1(d) and was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under 5 U.S.C. § 706(2)(A).” (citations omitted) (emphasis added).
20. Judge Jeffrey S. White (Bush appointee), Doe v. Trump, 4:25-cv-03140 (N.D. Cal.) (and related cases)
Executive Action: ICE modified plaintiffs’ SEVIS (Student and Exchange Visitor Information System) records
On May 22, Judge White, in granting a preliminary injunction, stated:
“In the record before the Court, Mr. Watson’s testimony and the brief email exchange about the Student Criminal Alien Initiative reflect the sum and substance of Defendants’ reasons for terminating Plaintiffs’ SEVIS records. Based on Mr. Watson’s representations, the only individualized assessment made was whether an individual identified who had a positive result in the NCIC database was an individual listed within the SEVIS database. Plaintiffs are likely to prevail on their claim that the decision to terminate their SEVIS records was arbitrary and capricious because the decision was not based on a ‘rational connection between the facts found and the choice made.’”
21. Judge John J. McConnell, Jr. (Obama appointee), State of Rhode Island v. Trump, 1:25-cv-00128 (D.R.I.)
Executive Action: Museums and Public Libraries (Executive Order 14238)
On May 6, Judge McConnell issued a preliminary injunction preventing the execution of EO 14238 to the extent it applies to IMLS/MBDA/FMCS. He held:
“This Executive Order violates the Administrative Procedures Act (‘APA’) in the arbitrary and capricious way it was carried out. …
Here, there is an absence of any reasonable explanation from IMLS, MBDA, and FMCS. The Reduction EO—with which these agencies sought to comply through their challenged policies—stated that the ‘non-statutory components and functions’ of IMLS, MBDA, and FMCS shall be ‘eliminated to the maximum extent consistent with applicable law.’ But the Defendants have not shown that any analysis was conducted to determine which components and functions of IMLS, MBDA, and FMCS are statutorily required, and which are not. …
IMLS has also offered no further explanation for the termination of thousands of its grants other than stating that the grants are ‘no longer consistent with the agency’s priorities[.]’ …
Here, the “rational connections” are absent, as IMLS’s, MBDA’s, and FMCS’s justifications for eliminating programs, terminating grants, and implementing large-scale employee RIFs have been couched in mere conclusory statements—most of which merely defer to the Reduction EO. There is no explanation about why the targeted programs or grants fell within the ambit of “non-statutory” functions or components. Such conclusory explanations, ‘devoid of data or any independent explanation, [are] grossly insufficient and fall[] far short of reasoned analysis.’ …
Additionally, ILMS, MBDA, and FMCS have failed to indicate that they considered any of the significant reliance interests of their program beneficiaries or grantees such as libraries, museums, business centers, contractors, labor unions, states, and local governments.” (citations omitted) (emphasis added).
22. Judge Allison Dale Burroughs (Obama appointee), Association of American Universities v. Department of Energy, 1:25-cv-10912 (D. Mass.)
Executive Action: Reduction of indirect cost reimbursement rate for research institutions (NIH Guidance) (DOE Rate Cap Policy, Apr. 11, 2025)
On May 15, Judge Burroughs issued a preliminary injunction, finding that:
“Because the Rate Cap Policy does not offer more than conclusory policy goals, the Court need go no further: Plaintiffs have demonstrated a likelihood of success in demonstrating that the Rate Cap Policy is arbitrary and capricious and therefore runs afoul of the APA. …
Missing from the Rate Cap Policy’s purported recognition of the indisputable reliance interest is a ‘reasoned explanation . . . for disregarding [that understanding, which was] engendered by the prior policy,’ and, notably, any acknowledgement of the potential consequences of the policy change. … As such, the Rate Cap Policy ‘f[alls] short of [DOE’s] duty to explain why it deemed it necessary to overrule its previous position,’ and Plaintiffs are likely to succeed in establishing that the Rate Cap Policy is arbitrary and capricious for this reason as well.” (citations omitted) (emphasis added).
23. Judge Paul L. Friedman (Clinton appointee), Southern Education Foundation v. United States Department of Education, 1:25-cv-01079 (D.D.C.)
Executive Action: Ban on DEIA initiatives in the executive branch and by contractors and grantees (Executive Order 14168, Executive Order 14151, Executive Order 14173)
On May 21, Judge Friedman issued a preliminary injunction, holding:
“[T]he Department’s Termination Letter provides no reasoned explanation for the grant termination. In fact, the Termination Letter’s list of possible bases ‘is so broad and vague as to be limitless; devoid of import, even.’ For these reasons, the Court finds that SEF has shown a substantial likelihood of success on the merits of Count One [that the Department’s termination of the EAC-South grant was arbitrary and capricious]”. (citations omitted).
24. Judge Myong J. Joun (Biden appointee), State of New York v. McMahon, 1:25-cv-10601 (D. Mass) and Somerville Public Schools v. Trump, 1:25-cv-10677 (D. Mass.) (consolidated cases)
Executive Action: Dismantling/Restructuring of the Department of Education 14242 (Executive Order of Mar. 20, 2025)
On May 22, Judge Joun granted a preliminary injunction, stating that:
“As Defendants concede, the Secretary’s March 14 letter sent a few days after the announcement of the RIF also ‘includes only a cursory explanation.’ …
None of these statements amount to a reasoned explanation, let alone an explanation at all. Indeed, the March 11 Directive contains two contradictory positions. … Defendants have not shown how the RIF furthers its goals of ‘efficiency, accountability, and ensuring that resources are directed’ to ‘parents, students, and teachers.’ … For instance, Defendants have not attempted to demonstrate that cutting a certain program in half has somehow made that program more efficient or returned necessary resources to the States. There is no indication that Defendants conducted any research to support why certain employees were terminated under the RIF over others, why certain offices were reduced or eliminated, or how any of those decisions further Defendants’ purported goals of efficiency or effectiveness of the Department. … I ‘cannot ignore the disconnect between the decision made and the explanation given.’ …
Additionally, Consolidated Plaintiffs have demonstrated that the Agency Defendants ‘failed to consider . . . important aspect[s] of the problem.’ … The Agency Defendants ‘entirely failed to grapple with the potential disruption to operations and interference with statutory and non-statutory functions a sudden elimination of nearly 50% of the Department’s entire workforce would cause.’ … Nothing in the record indicates a consideration of the ‘substantial harms and reliance interests for students, educational institutions, Plaintiffs, and others.’ … Defendants do not dispute this.” (citations omitted) (emphasis added).
On July 14, the Supreme Court ruled 6-3 to grant a stay of the May 22 preliminary injunction that had blocked the administration’s plans to dismantle the Department of Education and fire thousands of department employees. The majority did not provide any reasoning. In dissent, Justice Sotomayor, joined by Justices Kagan and Jackson, warned that the Court’s order enables the executive branch to functionally “abolish” an entire department “by executive fiat.”
On Aug. 11 the district court issued an indicative ruling that it would vacate the preliminary injunction if the First Circuit remands, and on Aug. 27 the First Circuit stayed briefing while it decides whether to remand.
25. Judge Leo Theordore Sorokin (Obama appointee), Schiff v. U.S. Office of Personnel Management, 1:25-cv-10595 (D. Mass.)
Executive Action: Removal of information from HHS websites under Executive Order on “Gender Ideology Extremism“ (Executive Order 14168)
On May 23, Judge Sorokin issued a preliminary injunction on the removal of information from HHS websites, holding:
“[T]he plaintiffs are likely to prevail for reasons they carefully explain in their papers … detailing why agency action at issue was arbitrary and capricious in that it lacked rational explanation and why OPM Memo was ultra vires given language of statute invoked[ ]. The Court makes two further observations. …
OPM’s Director acted well outside the boundaries of the power allocated to his agency by Congress and by the President when he issued the Takedown Directive. …
[T]he time and manner in which the defendants implemented the EO belies any plausible claim that the agencies acted in anything but an arbitrary and capricious way.”
26. Judge Lewis J. Liman (Trump appointee), Metropolitan Transportation Authority v. Duffy, 1:25-cv-01413 (S.D.N.Y.)
Executive Action: Rescission of approval for New York City congestion pricing plan
On May 28, Judge Liman issued a preliminary injunction, holding that:
“Plaintiffs have shown a likelihood of success on the merits of their argument that the February 19 Letter exceeded the FHWA or Secretary’s authority to terminate the VPPP Agreement. …
An agency acts arbitrarily and capriciously when it takes actions that are not justified by its stated bases. … Plaintiffs show a likelihood of success on the merits of their argument that the Secretary’s decision to terminate the VPPP Agreement because the statute does not authorize cordon pricing programs was arbitrary and capricious. …
One other erroneous legal conclusion prompted the Secretary to determine that the VPPP did not permit authorization of the Tolling Program: the Secretary’s conclusion that the VPPP does not authorize tolls that are “calculated based on considerations separate from reducing congestion or advancing other road-related goals.” … Congress thus has affirmatively stated that the tolling revenues may be used for other purposes; it has not stated that the tolling rates must be calculated exclusively on the basis of congestion-related considerations. … It was thus arbitrary and capricious for Defendants to act on the basis of that legal conclusion. …
Defendants’ belated attempts to reframe the motivating considerations as policy determinations rather than conclusions of illegality are unavailing both as post hoc rationalizations and because termination is not available on the grounds of shifting agency priorities. …
Plaintiffs show a likelihood of success on the merits with respect to their argument that the Secretary and the FHWA acted arbitrarily and capriciously by failing to adequately consider Plaintiffs’ reliance interests.”
27. Judge Marsha J. Pechman (Clinton appointee) American Federation of Government Employees AFL-CIO v. Noem, 2:25-cv-00451 (W.D. Wa.)
Executive Action: Rescission of Collective Bargaining and Other Labor Rights (Sec. Noem Memorandum Feb. 27, 2025, DHS Statement Mar. 7, 2025, Executive Order of Mar. 27, 2025)
On Jun. 2, Judge Pechman issued a preliminary injunction against the Noem determination, stating:
“[Plaintiffs are] likely to succeed in showing the Noem Determination is arbitrary and capricious in violation of the Administrative Procedure Act, particularly given its complete disregard for the 2024 CBA [Collective Bargaining Agreement] and its mischaracterization of AFGE’s [American Federation of Government Employees] role.”
28. Judge Royce C. Lamberth (Reagan appointee), Kingdom v. Trump, 1:25-cv-00691 (D.D.C.)
Executive Action: Housing of transgender inmates (Executive Order 14168)
On Jun. 3, Judge Lamberth granted the plaintiffs’ motion for preliminary injunction, noting:
“To be sure, agency action is not arbitrary and capricious merely because it is bad for some identifiable population. New policies nearly always have uneven effects on different groups; that is part and parcel of living within a democratic system. But the APA does require an agency to take actions that are rationally and demonstrably related to its stated goals, explain why it treats similarly situated people differently, and give consideration to the reliance interests of those who may be harmed by a new policy. Based on the limited information now before the Court, it appears that the implementing memoranda do none of these things, nor does the Executive Order on which they rely for their own justification. Accordingly, the Court concludes that the plaintiffs have established a sufficient likelihood of success on the merits of their APA claims.” (emphasis added).
29. Judge Dabney L. Friedrich (Trump appointee), Angelica S. v. Dept of Health and Human Services, 1:25-cv-01405 (D.D.C.)
Executive Action: Policy on Unaccompanied Minors
On Jun. 9, Judge Friedrich granted in part the plaintiffs’ motion for a preliminary injunction, concluding that “it is substantially likely that ORR acted arbitrarily and capriciously by not providing adequate justification for its new sponsor documentation requirements.”
30. Judge Denise Cote (Clinton appointee), American Federation of Government Employees v. Office of Personnel Management, 1:25-cv-01237 (S.D.N.Y)
Executive Action: Disclosure of personal and financial records to DOGE
On Jun. 9, Judge Cote granted plaintiffs’ motion for a preliminary injunction to prevent OPM from disclosing records to DOGE agents, holding:
“The plaintiffs have also shown that the OPM Defendants violated the APA by acting in an arbitrary and capricious manner. OPM’s decision to give DOGE agents administrative access to multiple OPM systems containing PII was a gross departure from its obligations under the Privacy Act as well as its longstanding cybersecurity practices. The onboarding process was rushed and many of the relevant individuals did not complete required training before OPM gave them access to its systems. The DOGE agents’ wide-ranging administrative access, which they were given without any credible need for access, violated the principles of least privilege and separation of duties.”
31. Judge John J. McConnell, Jr. (Obama appointee), State of California v. United States Department of Transportation, 1:25-cv-00208 (D.R.I.)
Executive Action: “Temporary Pause” of grants, loans, and assistance programs
On Jun. 19, Judge McConnell granted a preliminary injunction, holding:
“The IEC, backed by the Duffy Directive, is arbitrary and capricious in its scope and lacks specificity in how the States are to cooperate on immigration enforcement in exchange for Congressionally appropriated transportation dollars–grant money that the States rely on to keep their residents safely and efficiently on the road, in the sky, and on the rails.”
Update 1 (Nov. 20, 2025):
On Nov. 4, Judge McConnell granted the States’ motion for summary judgment and denied the Department of Transportation’s cross-motion, declaring the immigration enforcement condition (IEC) unlawful under the APA and the Spending Clause, vacating the condition from all DOT grant agreements, and permanently enjoining the government from conditioning transportation funding on state cooperation with federal civil immigration enforcement. He found the government’s actions arbitrary and capricious, explaining that its “core counterargument against the merits of the States’ APA claim [was] its repeated insistence that the IEC merely asks the States to certify compliance with federal law, and that it cannot be arbitrary or capricious for DOT to ensure this compliance.” “Depriv[ing]” the government of its “gimcrack defense” of offering a “nakedly misleading characterization of what the IEC requires,” Judge McConnell concluded that the government’s “imposition of the IEC is patently arbitrary and capricious” (emphasis added). The court explained:
“Of particular weight to this finding is the Supreme Court’s guidance that agency action is arbitrary and capricious when the agency ‘has relied on factors which Congress has not intended it to consider.’ … The Court has determined that Congress could not have intended to vest DOT with the authority to impose such sweeping immigration-related conditions on federal transportation funding. It was as such impermissible for Defendants to consider factors related to State cooperation with federal civil immigration enforcement in determining conditions for federal transportation funding. The other facts cited by the States-particularly their reliance interests and the ambiguity of the extent of the IEC’s requirements-lend support to the Court’s finding that Defendants acted arbitrarily and capriciously in imposing the IEC across the entirety of federal transportation funding programs.” (citation omitted).
32. Judge Myong J. Joun (Biden appointee),Victim Rights Law Center v. United States Department of Education, 1:25-cv-11042 (D. Mass.)
Executive Action: Dismantling/Restructuring of the Department of Education (Executive Order of Mar. 20, 2025)
On Jun. 18, Judge Joun issued a preliminary injunction against the RIF dismantling the Department of Education, stating:
“Plaintiffs have shown a likelihood of success on the merits of their claim that the RIF is arbitrary & capricious under the APA. …
The June 3rd Statement does not provide a reasoned explanation under the APA. For instance, the June 3rd Statement does not set forth the Department’s reasoning as to why or how the mass terminations ‘strengthen[] oversight’ of civil rights laws, and Defendants have not submitted any evidence as to how ‘reorganize[ing] personnel by specialized topics,’ as well as a ‘dedicated task force for Title IX investigations’ is permitting the OCR to actually fulfill its statutory obligations. …
Further, to the extent that the agency believes OCR will meet its statutory functions by simply reducing its caseload by only addressing cases that align with the new administration’s policies, that is arbitrary and capricious. …
Finally, there is no indication on the record that Defendants considered the ‘important aspect of the problem.’ … There is no record evidence in the form of data, research, or even meeting minutes that may indicate that Defendants discussed or considered “the likelihood that the RIF would severely undermine OCR’s capacity to investigate and resolve its growing backlog of civil rights complaints and deliver on its statutory and regulatory mandates.” (citations omitted) (emphasis added).
33. Judge Edward Milton Chen (Obama appointee), San Francisco Unified School District v. AmeriCorps, a.k.a. the Corporation for National and Community Service, 3:25-cv-02425 (N.D. Cal.)
Executive Action: Dismantling AmeriCorps (Executive Order 14222) (Goodson Memorandum and cover note Apr. 15, 2025)
On Jun. 18, Judge Chen granted plaintiffs’ motion for a preliminary injunction, stating:
“Plaintiffs also demonstrate a likelihood of succeeding on their claim that the AmeriCorps Directive and the new grant conditions violate the APA because they are arbitrary and capricious because AmeriCorps failed to provide a justification for its reversal of policy, and in so doing ignored significant reliance interests. It also failed to consider alternatives to imposing such an expansive and ill-defined ban on programmatic activity. …
At bottom, AmeriCorps offers no substantive reasons justifying its radical change of course other than its rote recitation of the need to implement the Executive Orders.” (emphasis added).
34. Judge Indira Talwani (Obama appointee), Association of American Universities v. National Science Foundation, 1:25-cv-11231 (D. Mass.)
Executive Action: Denial of federal grants
On Jun. 20, Judge Talwani granted the plaintiffs’ motion for summary judgement, holding:
“[B]ecause the court cannot discern from the Policy Notice how NSF concluded the 15% Indirect Cost Rate would further NSF’s stated goals, the 15% Indirect Cost Rate is arbitrary and capricious. …
The 15% Indirect Cost Rate is also arbitrary and capricious because it ignores important aspects of the problem, namely NSF’s statutory directive to ‘support basic scientific research and programs to strengthen scientific research potential and scientific education programs.’
Further, the Policy Notice offers insufficient explanation because it fails to meaningfully address Plaintiffs’ reliance interests. …
Plaintiffs offer a host of additional reasons why the 15% Indirect Cost Rate is arbitrary and capricious: it departs from the NSF’s policy against mandatory cost sharing, it rests upon unexplained factual findings that contradict those behind the NSF’s prior policy, it fails to explain why the auditing process would not achieve government efficiency, and it singles out universities without explanation. … These are all examples of the overarching problem: Defendants have not sufficiently explained why they concluded capping indirect cost rates for IHEs at 15% will further the objectives stated in the Policy Notice.” (emphasis added).
35. Judge Royce C. Lamberth (Reagan appointee), Open Technology Fund v. Kari Lake, 1:25-cv-00840 (D.D.C.)
Executive Action: Governance and Defunding Global Media and Global Internet Freedom (Executive Order 14217; Executive Order 14238; Executive Order 14290)
On Jun. 20, Judge Lamberth granted Plaintiffs’ preliminary injunction, holding:
“For substantially the same reasoning as explained in the Widakuswara PI, OTF is likely to succeed on the merits of its challenge. The defendants’ continuous withholding of congressionally appropriated funds, month after month, with no explanation, is a violation of the Administrative Procedure Act (APA).”
[See also Judge Lamberth’s Apr. 22 opinion explicating his views on arbitrary and capricious conduct in Abramowitz. v. Lake, 1:25-cv-00887 (D.D.C.) and Widakuswara v. Lake, 1:25-cv-01015 (D.D.C.)]
36. Judge Leon Schydlower (Biden appointee), Valuta Corporation, Inc. v. Financial Crimes Enforcement Network, 3:25-cv-00191 (W.D. Tex.)
Executive Action: Border enforcement
On Jun. 24, Judge Schydlower issued a temporary restraining order on the Financial Crimes Enforcement Network’s issuance of a border geographic targeting order, stating:
“Plaintiffs demonstrated a substantial likelihood of success on the merits on their claim that the geographic targeting order published at 90 Fed. Reg. 12106 (the “Border GTO”) is arbitrary and capricious. … Here, the administrative record reflects that the government either failed to consider or offered an unsubstantiated conclusion on at least two important aspects of the problem: (1) there are simple measures that cartel members can take to render the Border GTO completely toothless, and (2) innocent businesses can be profoundly disadvantaged if they are located on the ‘wrong’ side of an El Paso street, and thus within a covered zip code, vis-a-vis their competitors across the street in an uncovered zip code.”
37. Judge Tana Lin (Biden appointee), State of Washington v. Dept. of Transport, 2:25-cv-00848 (W.D. Wash.)
Executive Action: Unleashing American Energy (Exec. Order No. 14154); Ending Radical and Wasteful Government DEI Programs and Preferencing (Executive Order 14151); Implementing the President’s “Department of Government Efficiency” Cost Efficiency Initiative (Executive Order 14222)
On Jun. 24, Judge Lin granted in part the plaintiffs’ motion for a preliminary injunction, holding that the defendants’ action effort to block federal funds related to electric vehicle infrastructure that Congress already approved was likely arbitrary and capricious:
“Defendants’ rescission of the NEVI Formula Program guidance and revocation of State Electric Vehicle Infrastructure Deployment Plans was arbitrary and capricious. Defendants attempt to rely on two paragraphs in the Biondi Letter to satisfy their burden under the APA but fall far short of adequately explaining their actions. …
It is not evident that FHWA considered relevant factors that informed its decision. …
Indeed, the Biondi Letter does not articulate any facts at all and instead provides only an implication that the current NEVI Formula Program guidance does not ‘align with current U.S. DOT policy and priorities.’ … The Biondi Letter does not explain how the current guidance is out-of-step with current policy and, therefore, does not explain why it needs to be rescinded.
Further, the Biondi Letter does not demonstrate that FHWA considered the serious reliance interests engendered by the old policy—namely, the administrative, economic, and infrastructural arrangements that the states had made based on FHWA’s approval of prior State Plans. Indeed, the Biondi Letter is again completely silent as to any reliance issues it considered (if any). …
Therefore, the Court finds that Defendants’ action was likely arbitrary and capricious, and that Plaintiffs are likely to succeed on their second cause of action.” (emphasis added).
38. Judge Melissa R. Dubose (Biden appointee), State of New York v. Kennedy, 1:25-cv-00196 (D.R.I.)
Executive Action: Large-scale reductions in force / Termination of probationary employees (Executive Order 14210)
On Jul. 1, Judge Dubose granted a preliminary injunction, finding:
“Instead of undertaking an intentional and thoughtful process for weighing the benefits and drawbacks of implementing the sweeping policy change, the Defendants hastily restructured the sub-agencies and issued RIF notices. The Defendants have failed to demonstrate how the workforce terminations and restructurings made the sub-agencies more efficient, saved taxpayer dollars, or aligned with HHS’s priority of ‘ending America’s epidemic of chronic illness, by focusing on safe, wholesome food, clean water, and the elimination of environmental toxins.’ … In fact, the record is completely devoid of any evidence that the Defendants have performed any research on the repercussions of issuing and executing the plans announced in the Communiqué. Without a modicum of evidence to the contrary, the record shows that the Defendants did not consider the “substantial harms and reliance interests” of the States and the devastating consequences that would be felt by the populations served by these critical public health programs. …
Unable to perceive any rational basis for the Agency’s actions, the Court concludes that HHS’s actions in implementing the March 27 Communiqué were both arbitrary and capricious.” (citations omitted) (emphasis added).
Update 1 (Oct. 15, 2025):
On Sept. 17, the First Circuit denied the government’s motion for a stay of the Jul. 1 preliminary injunction pending appeal, finding that the government had “not met its burden to make a ‘strong showing’ that it will succeed on appeal in overturning the district court’s arbitrary-and-capricious ruling.” The government did not “meaningfully engage” with Judge Dubose’s analysis of the plaintiffs’ APA claims: it failed to “put forth any argument that HHS ‘examine[d] the relevant data and articulate[d] a . . . rational connection between the facts found and the choice made;’” and it did not “refute the district court’s explicit findings that there was no such ‘exam[ination of] the relevant data’ or ‘rational connection’ here” (citations omitted). The appellate briefing schedule currently runs through December.
39. Judge Brian E. Murphy (Biden appointee), Association of American Universities v. Department of Defense, 1:25-cv-11740 (D. Mass.)
Executive Action: Reduction of indirect cost reimbursement rate for research institutions (DOD Rate Cap Policy, May 14, 2025)
On Jul. 18, Judge Murphy granted a preliminary injunction, stating:
“[T]he underlying idea for the Policy—that indirect costs are ‘waste’ and ‘bureaucratic fat,’ Hegseth Memo at 2, that are less worthy of funding than direct costs—is at least conceptually irrational and ignores the realities of research, as demonstrated by the record evidence. The record is clear that indirect costs support critical resources and infrastructure, without which the research cannot proceed. …
Embarrassingly, it is not obvious that Defendants are even fully aware of what constitutes an indirect cost ….”
“The Rate Cap Policy assumes a one-to-one relationship between direct costs and actual research that is just fundamentally wrong. In the absence of any contrary explanation, the Court cannot conclude that the Policy has a rational basis.”
40. Judge Royce C. Lamberth (Reagan appointee), RFE/RL, Inc. v. Lake, 1:25-cv-00799 (D.D.C.)
Executive Action: Governance and Defunding Global Media and Global Internet Freedom (Executive Order 14217; Executive Order 14238; Executive Order 14290)
On Jul. 18, Judge Lamberth granted plaintiffs’ requested preliminary injunction, stating:
“As far as this Court is aware, it is unprecedented for an agency to demand that entirely new terms govern its decades-old working relationship with a grantee entity and then stop responding, particularly when the agency is statutorily obligated to grant yearly congressional appropriations to that specific entity by name. Clearly, USAGM has fallen short of its duty to ‘articulate a satisfactory explanation’ for its final grant agreement because it has offered no explanation at all. And without any explanation from USAGM to justify its new grant agreement, the Court cannot discern any reasonable basis to explain USAGM’s drastic change in course. …
[W]hen USAGM changed course with the presentation of the FY 2025 agreement, it never once referred to any [] federal statutes. Failure to invoke any of the governing statutes in taking such drastic action to alter the parties longstanding grantmaking relationship further confirms that the defendants’ action was arbitrary and capricious and must be ‘set aside.’” (citations omitted) (emphasis added).
41. Judge Amir H. Ali (Biden appointee), American Gateways v. U.S. Department for Justice, 1:25-cv-01370 (D.D.C.)
Executive Action: Access of Lawyers to Immigrants in Detention (Executive Order 14159)
On Jul. 21, Judge Ali issued a memorandum opinion accompanying a preliminary injunction on the Acting Director of the Executive Office for Immigration Review’s rescission of the National Qualified Representative Program (NQRP), which stated:
“Plaintiffs have developed a substantial, unrebutted record that termination of the policy was arbitrary and capricious. …
The record before the Court shows the Acting Director terminated the policy of providing representation without considering any of the substantial interests at stake, including those that explicitly motivated the agency policy in the first place. The record shows no consideration of the interests of people found mentally incompetent to represent themselves by immigration courts—that is, people who are unable to appreciate the nature of the proceedings they are in—who will likely lose their current representation and, following the Acting Director’s decision, have no representation going forward. … The record also shows no consideration of the integrity of the immigration process and the ‘unique challenges’ immigration judges face in adjudicating the deportation or detention of such people, which the agency recognized in adopting the NQRP. … And the record shows no consideration of the abrupt termination’s impact on organizations that provide services to the affected population, which had organized their operations around the policy and are in the midst of these representations in court proceedings across the country. …
On this record, the Court can only conclude that the Acting Director ‘entirely failed to consider an important aspect of the problem’ by abruptly ending the NQRP.” (citations omitted) (emphasis added).
42. Judge Dabney Langhorne Friedrich (Trump appointee), Cabrera v. Department of Labor, 1:25-cv-01909 (D.D.C.)
Executive Action: Dismantling Job Corps
On Jul. 25, Judge Friedrich granted a preliminary injunction, stating:
“Turning to the statute itself, the WIOA requires DOL to engage in certain procedures—including a period of notice and comment—before closing any Job Corps center. … The Department failed to comply with these statutory requirements. …
The agency suspended operations at all 99 privately operated Job Corps centers without any expectation of future reopenings. … DOL failed to conduct an individualized assessment or develop a performance improvement plan for any of the 99 centers. … It instead suspended all operations based on the perceived failures of the Job Corps program as a whole.
Because DOL unlawfully ‘closed’ all 99 privately operated Job Corps centers, in violation of the WIOA, the Court finds that the plaintiffs have established a likelihood of success on the merits of their APA claims”. (emphasis added).
43. Judge Trina L. Thompson,National TPS Alliance v. Noem, 3:25-cv-05687 (N.D. Cal.)
Executive Action: DHS Revocation of Temporary Protected Status (TPS)
On Jul. 31, Judge Thompson granted a motion to postpone the administration’s termination of TPS designations for nationals of Honduras, Nepal, and Nicaragua. She wrote:
“Plaintiffs provide sufficient evidence to demonstrate that the Secretary’s TPS Nepal, Honduras, and Nicaragua terminations were based on a preordained determination to end the TPS program, rather than an objective review of the country conditions. …
In addition to the Secretary’s statements, the Secretary has a history of systematically attempting to limit TPS. …
Given this prior practice of providing a six-month transition after termination, the Court finds that the Honduran, Nepal, and Nicaragua TPS Terminations change existing policy by only providing a 60-day transition. …
Because these notices fail to explain how a 60-day transition period is consistent with the agency’s twenty-two year practice of providing at least a 6 month transition period, the Court finds that Plaintiffs will likely succeed on the merits of their second ADA claim as to Honduras and Nicaragua. …
The Court finds that the Secretary’s footnote alluding to ‘certain other TPS designations [being] terminated without allowing for an extended transition period’ failed to acknowledge the twenty-two year practice of providing at least a 6 month transition period and did not provide sufficient explanation for departure.” (citations omitted) (emphasis added)
44. Judge Jia M. Cobb (Biden appointee), Coalition for Humane Immigrant Rights v. Noem, 1:25-cv-00872 (D.D.C.)
Executive Action: DHS Revocation of Temporary Protected Status (TPS)
On Aug. 1, Judge Cobb granted a motion to stay the administration’s expedited deportation practices for immigrants who are paroled into the United States, holding that the government’s “Challenged Actions do indeed fail even the ‘fundamentally deferential’ standard of arbitrary-and-capricious review. … [Its] scattershot legal explanations suffice to render them likely arbitrary and capricious in this preliminary posture.” (citations omitted).
45. Judge G. Murray Snow (Bush appointee), Launch Alaska v. Department of Navy, Office of Naval Research, 3:25-cv-00141 (D. Ala.)
Executive Action: Denial of federal grants
On Aug. 5, Judge Snow granted the plaintiff’s motion for a preliminary injunction, holding that they “provide[d] sufficient evidence to suggest that ONR’s termination of its grant was done in an arbitrary and capricious manner.” Judge Snow noted that the government’s blanket cancellation of all DEI programs “failed to consider any facts specific to Launch Alaska in concluding that Launch Alaska’s grant was ‘not aligned with DoD priorities’ … Consequently, ONR failed to provide ‘a rational connection between any facts found,’ of which there were none, and ‘the choice made.’” (citations omitted).
46. Judge Michael H. Simon (Obama appointee), Oregon Council for the Humanities v. United States DOGE Service, 3:25-cv-00829 (D. Or.)
Executive Action: Denial of federal grants
On Aug. 6, Judge Simon granted a stay under 5 U.S.C. § 705 and granted in part a preliminary injunction, blocking the administration from terminating the plaintiffs’ federal grants and prohibiting the administration from spending the appropriated money elsewhere. Judge Simon noted:
“None of these [termination] letters set out any factual findings or reasoned bases for the NEH Defendants’ termination decisions, much less provided the Councils with any explanation. The emails contain only conclusory statements and provide no indication of reasoned decision-making. …
Adding to the arbitrary and capricious nature of the actions taken by the NEH Defendants is that the grant reductions ‘were likely performed en masse, without individualized analysis.’ … As discussed, no such reasoned explanation was provided. …
Thus, Plaintiffs are likely to succeed on the merits of their claim that the NEH Defendants acted in an arbitrary and capricious manner in terminating the grants.” (citations omitted) (emphasis added).
47. Judge William E. Smith (Bush appointee), Rhode Island Coalition Against Domestic Violence v. Bondi, 1:25-cv-00279 (D.R.I.)
Executive action: Denial of federal grants
On Aug. 8, Judge Smith granted a preliminary injunction, halting the administration from imposing additional conditions on grants involving domestic violence programs. In granting the injunction, Judge Smith found:
“[T[he Office’s decision to impose the challenged conditions in such a vague and haphazard manner to be arbitrary, capricious, and an abuse of discretion, in violation of 5 U.S.C. § 706(2)(A). …
[O]n the present record, the Court can only conclude that the Office engaged in a wholly under-reasoned and arbitrary process. The Office provides, as the only basis for its decision, a single declaration by an Office supervisory official. … While helpful, that declaration is not a substitute for an administrative record. The Lyons Declaration likewise fails to speak to any Office considerations outside of presidential executive orders and a memorandum from the Attorney General. …
[T]he Office appears to have ‘entirely failed to consider’ many of the impacts of its decision, especially to the extent that the vague and confusing language in the challenged conditions would cause significant adverse effects on the Coalitions and the vulnerable populations that they serve.” (citations omitted) (emphasis added).
48. Judge Dabney L. Friedrich (Trump appointee), National Endowment for Democracy v. United States, 1:25-cv-00648 (D.D.C.)
Executive Action: Denial of State Department Funds
On Aug. 11, Judge Friedrich granted a preliminary injunction, finding that the government’s asserted justification for its withholding funds were “neither reasoned nor rational.” Judge Friedrich explained:
“The defendants fail to explain how funds falling 30% short of the Endowment’s anticipated budget could be ‘sufficient’ to meet its operational needs, … or ‘enable’ it ‘to carry out its purposes[.]’ … They do not address why it is ‘the most efficient and economical’ result … for the Endowment to default on current financial obligations to grantees. … Nor does the record show that the defendants weighed, assessed, or displayed any awareness of the Endowment’s reliance interests on the historical practice of routinely disbursing annual appropriations in full. …
Because the defendants’ ‘conclusory and unreasoned’ assertions … are entirely insufficient to justify their actions, the Endowment is also likely to succeed on its claim that withholding the $95 million in appropriated funds was arbitrary and capricious.” (citations omitted) (emphasis added).
49. Judge Barbara Jacobs Rothstein (Carter appointee), King County v. Turner, 2:25-cv-00814 (W.D. Wash.)
Executive Action: Ban on DEIA initiatives in the executive branch and by contractors and grantees
On Jun. 3, Judge Rothstein granted the plaintiffs’ first two motions for a preliminary injunction, holding:
“The Court concludes that Defendants have failed to demonstrate that the new funding conditions were the result of ‘reasoned decisionmaking,’ let alone have been ‘reasonably explained.’ In fact, they have not been explained at all. The CoC Program Grant Agreements and the new DOT agreements proffer no explanation for adoption of the new conditions. … For this reason, the Court concludes that Plaintiffs are likely to succeed on the merits of their claim that Defendants’ insistence on the new funding conditions was arbitrary and capricious”.
On Aug. 12, Judge Rothstein additionally granted the plaintiffs’ third motion for a preliminary injunction, stating:
“Defendants do not dispute that they have not offered contemporary, reasoned explanations for the imposition of the challenged funding conditions; rather, they argue that they are not required to do so because the conditions are not subject to notice-and-comment rulemaking. Defendants are mistaken. …
At most, the Defendants rely on reference to the Trump Administration’s executive orders to justify the imposition of the challenged funding conditions, but as this Court previously stated ‘rote incorporation of executive orders—especially ones involving politically charged policy matters that are the subject of intense disagreement and bear no substantive relations to the agency’s underlying action—does not constitute ‘reasoned decisionmaking.’ … Thus, the Court concludes that Plaintiffs are likely to succeed on the merit of their claim that Defendants’ imposition of the challenged funding conditions is arbitrary and capricious, which is an independent ground for setting aside those conditions.” (citations omitted) (emphasis added).
50. Judge Stephanie A. Gallagher (Trump appointee), American Federation of Teachers v. U.S. Department of Education, 1:25-cv-00628 (D. Md.)
Executive Action: Department of Education “Dear Colleague Letter” banning DEI-related programming (Dear Colleague Letter)
On Apr. 24, 2025, Judge Gallagher granted in part the plaintiffs’ motion for a preliminary injunction:
“Perhaps unsurprisingly, every reason Plaintiffs argue the Letter is arbitrary and capricious ultimately ties back to government’s failure to recognize that the Letter went beyond merely restating settled principles of civil rights law. Because the government insists that the Letter required no particular process, and has created no administrative record underlying it, it failed to consider a number of required factors. To affect the kind of policy change the Letter does, the government was required to carefully consider the choice it was making, the evidence underlying it, and the interests it might impact. …
The Letter also marks a significant change in position in DOE’s interpretation of SFFA. … The change in position is not explained. …
This Court is most concerned by DOE’s change in position regarding its authority to regulate curriculum, and its decision to prospectively categorize content as discriminatory. It has not acknowledged that the change occurred or explained the reasoning for that change. The agency was required to demonstrate self-awareness where it changed positions and to explain the reasons for those changes in position. It did not. This supports a finding that the Letter is arbitrary and capricious. …
The government has clarified that there is no administrative record underlying the Letter. … The Letter does not contain any factual citations or references to any facts supporting its assertions. … The Letter provides no line at all distinguishing viewpoint from binding policymaking. This too supports a finding that the Letter is arbitrary and capricious. …
[The administration] is not entitled to misrepresent the law’s boundaries, and must at a minimum acknowledge and consider the relevant legal framework as it is. It cannot blur the lines between viewpoint and law. This also supports the notion that the Letter is likely arbitrary and capricious. …
The government argues that DOE could not possibly have considered reliance interests that were not raised to it. The problem with that is, of course, that DOE did not ask for input. School districts, schools, and teachers had no opportunity to comment on the Letter before it became effective. And their reliance interests, including but not limited to existing programs, curricula, contractual obligations, and departmental structures, were not considered. Partially, perhaps, because the government seems blind to the magnitude of the change in policy the Letter announced, it failed to account for how disruptive it would be to stakeholders. The direct prohibitions on teaching certain content paired with other vague and overbroad terms raise reasonable views that broad swaths of content might be legally suspect to this administration. The government’s failure to consider reliance interests, too, counsels toward a finding that the Letter is likely arbitrary and capricious. …
Because the government has failed to acknowledge its change in position, or to promulgate the Letter using the processes necessary for a rule that effects a substantive change in policy, it failed to consider a number of factors required by the APA. Plaintiffs are therefore likely to succeed on the merits of their claim that the Letter is arbitrary and capricious.” (emphasis added).
On Aug. 14, Judge Gallagher issued a memorandum opinion granting the plaintiffs’ motion for summary judgment in part, finding that:
“No reasoned bases for the government’s decisions are apparent from the very sparse record, and this Court cannot provide them. …
There is no administrative record underlying either the Letter or the Certification Requirement. … Neither document contains any factual citations nor references any facts supporting its assertions. …
The Letter and Certification provide no line at all distinguishing viewpoint from binding policymaking. They either make factual assertions without support, or fail to consider facts at all. …
In promulgating the Letter and Certification, the government announced large-scale policy changes without considering whether they were appropriate based on existing facts and law, or the extent to which they would disrupt schools and teachers’ status quo to the detriment of students’ learning. Both the Letter and Certification are arbitrary and capricious for failing to account for facts, law, baseline conditions, or reliance interests.” (citations omitted) (emphasis added).
51. Judge Rita F. Lin (Biden appointee), Thakur v. Trump, 3:25-cv-04737 (N.D. Cal.)
Executive Action: Actions Toward Universities (Executive Order 14188, Pause or termination of Grants, Columbia Letter of demands, Harvard Letter of demands, Harvard Proclamation on student visas)
On Jun. 23, Judge Lin issued a preliminary injunction barring the EPA, NEH, and NSF from terminating UC researchers’ grants, finding:
“Plaintiffs are also likely to succeed on their claims that the en masse terminations via form letter were arbitrary and capricious. The law requires administrative agencies to provide reasoned explanations for their decisions, particularly when changing a longstanding practice and abruptly upending years of planning and work. The form termination letters here appear to be in blatant violation of that requirement. …
The record reflects that the challenged grant terminations were likely performed en masse, without individualized analysis, and without providing grantees with reasoned explanation for the terminations. …
Agency Defendants do not contest that the termination letters represent the sum-total of their ‘reasoned explanation,’ and none of the evidence Defendants have produced supplements the reasoning in the form letters. …
This guesswork is made even more difficult by the inconsistencies in the existing record. … Plaintiffs and the Court should not be left to guess at Agency Defendants’ true reasons for terminating Plaintiffs’ funding. …
Agency Defendants’ characterization of their grant termination process as ‘individualized review’ is belied by the rest of the record. … The pace of the review and the resulting large waves of terminations via form letters further suggests a likelihood that no APA-compliant individualized review occurred. These are precisely the kinds of concerns that the APA’s bar on arbitrary-and-capricious agency decisionmaking was meant to address. …
Plaintiffs have reliance interests in the research they were conducting based on the multi-year funding grants, and Defendants have not introduced any evidence that they considered those interests prior to terminating the grants. …
Defendants have had the opportunity to introduce evidence showing that they considered Plaintiffs’ reliance interests prior to terminating their grants, but have not done so. …
Similarly, Defendants have not introduced any evidence indicating that they considered other important factors, including the waste that would result from projects halted before completion, or the loss to the public of critical research that will go unpublished.” (citations omitted) (emphasis added).
On Aug. 21, the 9th Cir. denied the government’s motion for a partial stay pending appeal, stating:
“The letter does not explain which rationale applies to the recipient of the form letter. Nor does it explain how research projects that were selected to receive federal funding after a competitive process now fail to exhibit merit, or describe what the research duplicates, or provide any specific evidence supporting the allegation that any researcher acted abusively, fraudulently, or wastefully. …
The rest of the record also provides little explanation for the termination decisions. …
On this limited record, we agree with the district court that the recipients of the form letter and the public were left to guess at the reasons for these terminations. …
Because the letters left the recipients guessing as to the agencies’ rationale, and there is no evidence that the agencies considered reliance interests before terminating the grants, the government has not ‘made a strong showing’ that it is likely to succeed on the merits of its argument that the district court abused its discretion when it concluded that the termination of grants by form letters was likely arbitrary and capricious.” (citations omitted) (emphasis added).
On Sept. 4, the government moved for panel rehearing or rehearing en banc of the panel’s denial of its motion to stay the district court’s preliminary injunction pending appeal.
Update 1 (Oct. 15, 2025):
On Sept. 22, the court granted a further preliminary injunction, extending relief to DoD, DoT, and HHS/NIH grants in addition to the agencies already enjoined. In her order, Judge Lin stated:
“Plaintiffs have shown a likelihood of success on the merits of their APA arbitrary and capricious claim against DoD, DoT, and HHS-NIH, largely for the same reasons described in the PI Order. …
With respect to DoD, the standardized termination letters state, with only slight variations, that the ‘grant award no longer effectuates [] program goals or DoD priorities.’ … That language again reflects ‘that the challenged grant terminations were likely performed en masse, without individualized analysis, and without providing grantees with reasoned explanation for the terminations.’ …
With respect to DoT, Defendants argue that Plaintiffs are not likely to succeed on their arbitrary and capricious claim because the two-page form letters terminating Plaintiffs’ grants include a brief discussion of supposedly grant-specific reasons for the termination. … However, DoT offers no explanation as to why the research at issue [constituted a DEI initiative inconsistent with DoT priorities]. … Furthermore, one of the letters appears to reference research activities of an entirely different UTC grantee (C2SMARTER) as the basis for termination, raising serious questions regarding the extent to which individualized consideration occurred. …
Moreover, DoT acknowledges that it “did not explicitly consider reliance interests.” … And nothing in the record suggests that DoT considered other important factors, such as waste of taxpayer money resulting from mid-stream funding cuts, or the public’s loss of important research. …
For similar reasons, Plaintiffs are likely to succeed on the merits of their claim that HHS and NIH’s immediate and indefinite grant suspensions were arbitrary and capricious.” (citations omitted).
52. Judge Kathleen Mary Williams (Obama Appointee), Friends of the Everglades, Inc. v. Noem, 1:25-cv-22896 (S.D. Fla.)
Executive Action: Immigration Detention Facilities
On Aug. 21, the court, granting in part the plaintiffs’ motion for a preliminary injunction, suggested an arbitrary and capricious standard under the National Environmental Policy Act (NEPA) and found:
“Here, there weren’t ‘deficiencies’ in the agency’s process. There was no process. The Defendants consulted with no stakeholders or experts and did no evaluation of the environmental risks and alternatives from which the Court may glean the likelihood that the agency would choose the same course if it had done a NEPA-compliant evaluation.” (emphasis added).
On Sept. 4, the D.C. Circuit stayed the district court’s August 21 preliminary injunction and stayed the underlying case pending appeal. On Sept. 8, the plaintiffs/appellees moved for the D.C. Circuit to reconsider its stay of the district court proceedings.
53. Judge Brendan Abell Hurson (Biden appointee), City of Columbus v. Robert F. Kennedy, Jr., 1:25-cv-02114 (D. Md.)
Executive Action: Access to Health Care
On Aug. 22, Judge Hurson granted a stay of certain provisions of the Marketplace Integrity and Affordability Rule, which were to take effect on Aug. 25, 2025.
On the “Actuarial Value Policy,” Judge Hurson found:
“Such ‘[n]odding to concerns raised by commenters only to dismiss them in a conclusory manner is not a hallmark of reasoned decisionmaking.’ … Thus, the Court finds that Defendants provided an insufficient and conclusory rationale for altering the de minims variation, and Plaintiffs are likely to succeed on their claim that the agency acted in an arbitrary and capricious manner.” (citations omitted) (emphasis added).
Regarding the special enrollment period’s eligibility verification requirements, Judge Hurson said:
“The Court agrees with Plaintiffs’ principal argument that ‘CMS offered no good reason to impose this burden on enrollees.’ … As such, the Court finds that Plaintiffs have shown a likelihood of success on the merits on their claim that instituting SEP pre-enrollment verification procedures was arbitrary and capricious.” (citations omitted) (emphasis added).
Regarding “Income Verification When Data Shows Income Below 100 Percent of FPL”, Judge Hurson said:
“At the hearing, the Court asked counsel for Defendants how it could not be considered arbitrary and capricious for the agency to continue to rely on a report to justify its action after the author of that report indicated that the conclusions in the report do not support the agency’s action. … In response, counsel conceded, ‘[t]hat is something difficult to address,’ and noted that ‘[he] [was] not familiar with the precise facts of what the Agency was using, the proposition for which the Agency was using the study compared to what the author was disagreeing with.’ …
Against this backdrop, the Court concludes that HHS failed to meaningfully address the comments pointing out potential flaws in the data contained in the Paragon report, despite continuing to rely on such data to justify the provision in the Rule. …
In short, the agency refused to meaningfully engage with challenges to the data and reports used to justify the Rule, which began at the time of promulgating the final Rule and continues through this litigation. … Accordingly, Plaintiffs are likely to succeed on the merits of their claim that CMS acted arbitrarily by instituting additional verification requirements without sufficient data justifying the need to do so.” (citations omitted) (emphasis added).
Finally, on “Income Verification When Tax Data is Unavailable”, Judge Hurson said:
“After reviewing the agency’s reasoning in the Rule, the Court finds that CMS concluded in a conclusory fashion that program integrity benefits would outweigh the administrative burden on applicants. … The circular reasoning and conclusory statements offered to justify the policy change are not indicative of reasoned decision-making. … Given the lack of sufficient data to justify the rule, and the agency’s lack of meaningful explanation for the provision, the Court finds that this provision was not ‘reasonable and reasonably explained.’” (emphasis added).
54. Judge Allison Dale Burroughs (Obama appointee), President and Fellows of Harvard College v. US Department of Health and Human Services, 1:25-cv-11048 (D. Mass.) and American Association of University Professors – Harvard Faculty Chapter v. United States Department Of Justice, 1:25-cv-10910 (D. Mass.) (related cases)
Executive Action: Actions Toward Universities (Executive Order 14188, Pause or termination of Grants, Columbia Letter of demands, Harvard Letter of demands, Harvard Proclamation on student visas)
On Sept. 3, Judge Burroughs ruled, in part, that the administration’s attempt to condition Harvard University’s federal funding on changes to its campus policies violates the Administrative Procedure Act. The Court found:
In sum, the Freeze Orders, on their face, purport to explain the decision to terminate funding as based on Harvard’s failure to address antisemitism or uphold civil rights laws. It is difficult, however, if not impossible, for this Court to view that explanation as ‘reasoned’ when the administrative record reflects that, before freezing nearly $2.2 billion in federal grants, the agencies considered little, if any, data regarding the antisemitism problem at Harvard, disregarded the substantial policy and other changes Harvard had taken and was continuing to take to address the issue, and failed to weigh the importance of any particular grant or to evaluate whether a particular grant recipient had engaged in antisemitic behavior before cutting off critical research. … It is that rational connection between the grant terminations and the fight against antisemitism that is wholly lacking here. Therefore, Plaintiffs’ motions for summary judgment are GRANTED as to their arbitrary and capricious claims regarding the Freeze Orders, and Defendants’ corresponding motions are DENIED.” (emphasis added).
55. Judge William E. Smith (W. Bush appointee), Rhode Island Latino Arts v. National Endowment for the Arts, 1:25-cv-00079 (D.R.I.)
Executive Action: Ban on DEIA initiatives in the executive branch and by contractors and grantees (Executive Order 14168)
On Sept. 19, Judge Smith issued an order granting and denying in part the parties’ respective motions for summary judgment, and finding that the NEA’s final decision regarding its implementation of EO 14168 (“Final Notice”) was arbitrary & capricious under the APA. He wrote:
“The NEA’s only explanation for its decision to categorically disfavor applications that promote gender ideology is that it will ‘serve the public by . . . furthering the current administration’s priorities as provided in the [EO],’ … The administrative record — which consists of the NFAHA, ‘a smattering of cases,’ the EO, the NEA’s grant application guidelines, and the Final Notice — is devoid of reasoned policy analysis … There is no examination of relevant data, there are no findings of fact, and there is zero explanation of what it means for a project to ‘promote gender ideology,’ let alone how that concept relates to artistic merit, artistic excellence, general standards of decency, or respect for the diverse beliefs and values of the American public. …
Because the NEA has failed to explain its action outside of complying with the EO, the Court concludes that the Final Notice is arbitrary and capricious in violation of the APA.” (citations omitted) (emphasis added).
56. Judge Royce C. Lamberth (Reagan appointee), Revolution Wind, LLC v. Burgum, 1:25-cv-02999 (D.D.C.)
Executive Action: Department of the Interior (DoI) Bureau of Ocean Energy Management (BOEM) “Stop Work Order” halting construction on offshore wind project
On Sept. 22, Judge Lamberth granted a stay and preliminary injunction of BOEM’s Aug. 22 stop work order halting construction on Revolution Wind’s two-year offshore wind project intended to provide energy to the New England region. In a bench ruling, Judge Lamberth reportedly called the administration’s decision the “height of arbitrary and capricious action” (emphasis added).
57. Judge William E. Smith (Bush appointee), State of Illinois. v. Federal Emergency Management Agency, 1:25-cv-00206 (D.R.I.)
Executive Action: “Temporary Pause” of grants, loans, and assistance programs
On Sept. 24, Judge Smith granted summary judgment and a permanent injunction for 20 states and the District of Columbia, finding the DHS’s attachment of immigration-related conditions to federal disaster grants and emergency management programs was arbitrary and capricious. Judge Smith wrote:
“DHS made no attempt to claim that it examined the relevant data or articulated a fact-based reason for its actions.
Based on the limited justifications offered in Defendants’ papers and exhibits to this Court, the Court can only conclude that DHS engaged in a wholly under-reasoned and arbitrary process. Defendants provide, as nearly the only basis for their decision, that DHS is tasked with homeland security and that many of the grants, as well as the overarching objective of DHS, are designed to prevent and potentially respond to acts of terrorism, and ‘that mission includes immigration enforcement.’ … But such platitudes cannot substitute for an actual explanation of why it is necessary to attach sweeping immigration conditions to all the grants at issue here, regardless of their statutory purpose or programmatic objectives. The indiscriminate application of these conditions across the entire spectrum of DHS-administered grants demonstrates the absence of tailoring and the failure to consider whether such conditions are appropriate for particular programs. …
The failure to even consider reasons to not impose the contested conditions highlights the arbitrariness of the process. Moreover, DHS did not meaningfully evaluate the states’ reliance interests, even though the record shows that states have structured their budgets and emergency preparedness planning for decades around consistent federal support. …
The combination of overbreadth, disregard for reliance interests, and failure to consider public safety and possible alternatives makes it clear that DHS’s decision does not comply with the APA. … The contested conditions are arbitrary and capricious and, thus, violate the APA.” (citations omitted) (emphasis added).
58. Judge William G. Young (Reagan appointee), American Association of University Professors v. Rubio, 1:25-cv-10685 (D. Mass.)
Executive Action: Habeas Corpus and Immigration Removal of Protestors (Executive Orders 14161 and 14188)
On Sept. 30, following a nine-day bench trial, Judge Young ruled that the administration violated the First Amendment in efforts to deport non-citizens involved in pro-Palestinian protests on college campuses. The court also found the administration violated the Administrative Procedure Act, stating:
“The policy is also arbitrary or capricious because it represents an unexplained reversal of the agencies’ position without accounting for reliance interests. …
Although … ‘[t]he agency retains the discretion and authority to change its position — even abruptly — in any specific case because a change in its policy does not affect the legal norm,’ here it is the legal norm itself that has been changed — pure political speech has never before been grounds for adverse immigration action — and, ‘when “bizarre” interpretations are made out of “regulatory zeal,” deference is not appropriate.’ …
The Public Officials not only do not explain this policy; they deny that it exists. Thus, the agencies have engaged in quintessential arbitrary action: an abrupt reversal of course, using statutes in new and constitutionally suspect ways, with no explanation.” (emphasis added).
59. Judge Ann Aiken (Clinton appointee), State of Washington v. Health and Human Services, 6:25-cv-01748 (D. Or.)
Executive Action: Ban on DEIA initiatives in the executive branch and by contractors and grantees (Executive Order 14168)
On Oct. 27, granting a preliminary injunction, Judge Aiken wrote:
“In sum, HHS fails to show that the new grant conditions are reasonable, let alone offer any reasonable explanation, other than pretext, for its action. HHS provides no evidence that it made factual findings or considered the statutory objectives and express requirements, the relevant data, the applicable anti-sex- discrimination statutes and its own regulations or Plaintiff States’ reliance interests.
On this record, the Court concludes that Plaintiff States are likely to succeed on the merits of their APA claim that Defendants’ actions are arbitrary and capricious.”
60. Judge Kymberly K. Evanson (Biden appointee), State of Washington v. United States Department of Education, 2:25-cv-01228 (W.D. Wash.)
Executive Action: Denial of federal grants
On Oct. 27, granting a preliminary injunction, Judge Evanson wrote:
“The Court finds that Plaintiff States have met their burden to show that they are likely to succeed on the merits of their APA claim that the discontinuation decisions are arbitrary and capricious in at least two ways. …
First, … there is no evidence the Department considered any relevant data pertaining to the Grants at issue and it is undisputed that it provided no Grant-specific explanation of the application of the Department’s new “best interest” criteria. In the absence of any findings, the Court cannot determine whether the Department’s decision bears a rational connection to the facts. Rather, the discontinuation decisions are wholly conclusory, which prevents meaningful judicial review. …
Beyond an unsupported assertion that the decisions were ‘reasonable and reasonably explained’ …, Defendants make no effort to analogize the discontinuation decisions or the process by which the decisions were reached to the cases they cite. … Indeed, Defendants’ counsel admitted at oral argument that he had no information about how the Department decided which Grants to discontinue, and that the record contains none. … Because the Court agrees with Plaintiff States that the discontinuation decisions are unexplained and conclusory, the Court finds that Plaintiff States have shown a likelihood of success on the merits of their APA claim on this basis. …
[Second,] there is no evidence before the Court that Defendants considered any reliance interests (as Defendants conceded at oral argument…).” (citations omitted) (emphasis added).
61. Judge Susan Illston (Clinton appointee), American Federation of Government Employees, AFL-CIO v. Trump, 3:25-cv-03698 (N.D. Cal.) and American Federation of Government Employees, AFL CIO v. United States Office of Management and Budget, 3:25-cv-08302 (N.D. Cal.) (related cases)
Executive Action: Large-scale reductions in force / Termination of probationary employees (Executive Order 14210)
Granting a temporary restraining order on Oct. 15, Judge Illston wrote:
“If what plaintiffs allege is true, then the agencies’ actions in laying off thousands of public employees during a government shutdown —and in targeting for RIFs those programs that are perceived as favored by a particular political party— is the epitome of hasty, arbitrary and capricious decisionmaking. The many snafus that plaintiffs detail in their papers, some of which are outlined above, are testament to this.” (emphasis added).
On Oct. 28, granting a preliminary injunction, Judge Illston repeated the above. She noted that the government had failed to address the plaintiffs’ allegations of arbitrary and capricious conduct at the TRO stage and devoted only three pages to the issue in its preliminary-injunction briefing. The court wrote:
“Review of the OMB Memorandum, the OPM Guidance and Special Instructions, and the declarations provided by defendants do not reveal reasoned decisionmaking. The RIFs at issue here, planned and administered during a government shutdown, are likely arbitrary and capricious: they are explicitly intended for the purpose of political retribution and have been rolled out haphazardly, with no evidence of reasoned decisionmaking or consideration of the federal employees’ reliance interests. Defendants’ arguments to the contrary are unavailing.” (emphasis added).
The court further said that the government’s “vague and limited articulations do not justify agency defendants’ drastic, out of the ordinary actions during a government shutdown,” described statements by President Trump as “partisan motivation [which] exemplifies arbitrary and capricious agency action,” and called out “a tumultuous process pervaded by errors and uncertainty.” Judge Illston concluded:
“The Court further agrees with plaintiffs that OMB’s directive to implement RIFs during the lapse in appropriations departs from longstanding policies without providing a reasoned explanation for doing so. It is longstanding practice for Presidents to act in concert with Congress when undertaking large-scale RIFs. … However, here, the agencies sharply depart from historical practice, unilaterally acting out President Trump’s and OMB Director Vought’s retaliatory and partisan ‘policy goal’ of punishing Democrat-oriented agencies amid a government shutdown. Unable to discern any reasoned basis for the agency defendants’ actions, the Court concludes that plaintiffs are likely to succeed on their arbitrary and capricious claim under the APA.” (emphasis added).
62. Chief Judge John J. McConnell, Jr. (Obama appointee), Rhode Island State Council of Churches v. Rollins, 1:25-cv-00569 (D.R.I.)
Executive Action: Denial of federal grants
On Oct. 31, Judge McConnell held a virtual hearing in which he granted the plaintiffs’ emergency motion for a temporary restraining order. As he later said:
“Specifically, the Court found that Plaintiffs were substantially likely to succeed on the merits of their APA claim because the USDA’s decision to cut off SNAP funding was contrary to law and arbitrary and capricious. The Court reasoned that the contingency funds for SNAP are appropriated funds that are necessary to carry out the program’s operation, and that USDA provided no explanation as to why the contingency funds could not be used even though the agency had previously acknowledged in 2019, during the first Trump administration, that such funds could be used during a government shutdown.”
In Judge McConnell’s Nov. 1 written TRO, the government was given two paths to avert a lapse in November SNAP benefits: (1) fully fund payments by Nov. 3 using Section 32 and/or contingency funds; or (2) make partial payments by Nov. 5, but only if it “expeditiously” resolved the administrative and clerical burdens associated with partial disbursements. The court added that any decision not to fully fund must be made “in accordance with the APA” and could not be “arbitrary or capricious.” The government chose to make partial payments.
On Nov. 6, Judge McConnell granted, inter alia, the plaintiffs’ motion for a second TRO, concluding that the plaintiffs’ claim that the USDA’s decision to opt for partial November SNAP payments was likely to succeed as being arbitrary and capricious on four grounds. (Judge McConnell also reportedly said during the earlier Nov. 6 hearing that “USDA arbitrarily and capriciously created this problem by ignoring the congressional mandate for contingency funds and failing to timely notify the states.”)
First, USDA failed to “account for the practical consequences” or consider the “increased harm that will befall these recipients” by attempting to issue partial payments. The court said it found “it astounding that the Defendants would even choose to go down this path if they were aware of all the difficulties and delays that such partial payment of SNAP benefits would entail.”
Second, USDA misapprehend[ed] its statutory authority under 7 U.S.C. § 2257 and congressional intent by “conflat[ing] Section 32 funds with the Child Nutrition Programs to make it seem as though they go in tandem,” claiming that Section 32 funds must be used “exclusively” to fund those programs and that using them for other purposes would “stray from Congressional intent.”
Third, the court held that USDA’s reasoning for refusing to access the Section 32 fund was “so contrary to the evidence” and “so implausible” as to be arbitrary and capricious. It found it “highly unlikely that USDA’s transfer of Section 32 funds would lead to immediate and permanent gaps in Child Nutrition Program funding, as the Defendants suggest,” emphasized that “USDA does not know how Congress will use its power of the purse, so it cannot rest on the assumption that Congress will simply do nothing,” and concluded that “it defies belief that the Defendants would prioritize a hypothetical disruption in child food assistance, projected to occur no sooner than May of 2026 (if at all), over the very real and immediate risk of children being deprived of their food assistance today” (emphasis in original).
Finally, USDA’s decision was “entirely ‘pretextual’” and undertaken for “partisan political purposes” (emphasis added). Judge McConnell concluded:
“This Court is not naïve to the administration’s true motivations. … Far from being concerned with Child Nutrition funding, these statements make clear that the administration is withholding full SNAP benefits for political purposes. Such ‘unjustifiable partisanship’ has infected the USDA’s decision-making.” (citations omitted) (emphasis added).
The court also emphasized in the introductory discussion of its order:
“While the President of the United States professes a commitment to helping those it serves, the government’s actions tell a different story. Faced with a choice between advancing relief and entrenching delay, it chose the latter—an outcome that predictably magnifies harm and undermines the very purpose of the program it administers. Such conduct is more than poor judgment; it is arbitrary and capricious. One cannot champion the public interest while simultaneously adopting policies that frustrate it. Discretion exercised in this manner ceases to be discretion at all—it becomes obstruction cloaked in administrative formality.” (emphasis added).
(On Nov. 7, the Supreme Court entered an administrative stay of the Oct. 31 and Nov. 6 orders, and later extended the stay. On Nov. 13, after the government shutdown ended, the government withdrew its request for a stay in the Supreme Court, with the Solicitor General explaining that the bill ending the shutdown “fully funds SNAP through the end of the fiscal year.”)
63. Judge Lewis A. Kaplan (Clinton appointee), State of New York v. Noem, 1:25-cv-08106 (S.D.N.Y.)
Executive Action: Immigration Policy – punishment of sanctuary cities and states (Executive order 14159) (DOJ “Sanctuary Jurisdiction Directives“ (Feb. 5, 2025))
On Nov. 6, Judge Kaplan granted a permanent injunction, holding that DHS and FEMA’s decision to reallocate roughly $34 million in Rail and Transit Security Grant Program funding from New York’s Metropolitan Transportation Authority (MTA) based on New York City’s “sanctuary city” policies was unlawful. DHS had initially allocated the funds to the MTA through its Notice of Funding Opportunity (NOFO), but FEMA later reallocated the funds to other recipients. Directing the government to release the funds to the MTA, Judge Kaplan found the reallocation to be arbitrary and capricious.
Judge Kaplan wrote:
“The government counters that it provided an explanation for its decision in the NOFO, which states that ‘[a]n immigration term and condition, including those in the DHS Standard Terms and Conditions, may be material to the Department of Homeland Security’s decision to make this grant award.’ This justification is arbitrary and capricious for at least three independent reasons.
First, the statute governing the award of TSGP funds requires that the DHS Secretary ‘select the recipients of grants based solely on risk.’ Congress’s use of the word ‘solely’ makes clear beyond any doubt that the Secretary may not consider factors unrelated to risk. The government concedes, and the Court finds, that the Reallocation Decision was not based on risk. Instead, the government argues that ‘[e]nsuring that recipients enforce federal immigration laws and policies is a rational reason in support of the agency’s denial of federal funds.’ Regardless of whether this constituted a ‘rational reason’ for the Reallocation Decision, the decision nonetheless was arbitrary and capricious because FEMA’s reliance on a non-risk factor constituted reliance on a factor proscribed by statute.
The government argues also that ‘[w]hile Congress cannot regulate the States, its constitutional powers . . . do allow it to fix the terms on which it shall disburse federal money to the States.’ The government is correct that Congress may fix terms on the disbursement of federal money to the States. But here, Congress did not authorize the DHS Secretary to fix immigration-related terms or conditions on the disbursement of TSGP funds. To the contrary, Congress prohibited DHS from imposing such terms by requiring the selection of grant recipients to be ‘based solely on risk.’ Accordingly, the asserted basis for the Reallocation Decision — the implication that the MTA, the State, or the City was not in compliance with immigration-related grant conditions — was arbitrary and capricious because Congress precluded DHS from imposing, and in any case did not authorize it to impose, such conditions on TSGP funds.
Second, … [the] blanket statement [in the NOFO] did not ‘reasonably explain[]’ the Reallocation Decision. It did not specify any particular term that might be material nor any particular term the MTA allegedly did not comply with. It did not state that the MTA might be held responsible for New York City’s status as a sanctuary jurisdiction — the basis for the decision asserted by a FEMA official in this litigation. And it did not explain what, if anything, changed with respect to compliance with immigration terms and conditions between the publication of the $33,898,500 target allocation and the Reallocation Decision. Accordingly, the Reallocation Decision was arbitrary and capricious because the government did not provide a reasonable, contemporaneous explanation for the decision.
Third, even if the enforcement of immigration-related conditions were statutorily authorized and had been given as a contemporaneous explanation for the Reallocation Decision, the government’s application of that justification exclusively to the MTA was wholly arbitrary. …
Even accepting Mr. Arnold’s purported rationale at face value, it would not reasonably explain the Reallocation Decision because that decision increased grants to some sanctuary cities or entities based in or serving them while eliminating any such grant to the MTA. Accordingly, the Reallocation Decision was arbitrary and capricious because it ‘runs counter to the evidence before the agency’ and ‘is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’” (citations omitted) (emphasis added).
64. Judge James E. Simmons, Jr. (Biden appointee),Rios v. Noem, 3:25-cv-02866 (S.D. Cal.)
Executive Action: Other Habeas and Removal Actions
On Nov. 10, granting a petition for writ of habeas corpus against the petitioner’s re-detention and possible removal to a third country, Judge Simmons explained the court “need not reach” the Administrative Procedure Act claims because it granted relief on due process grounds, but he found the APA supplies “adequate and independent” grounds for the writ: Respondents offered no “rational connection” for revoking supervised release and attempted a third-country removal to Mexico without notice. The court wrote:
“[T]he record here shows that Respondents did not articulate a satisfactory explanation including a ‘rational connection between the facts found and the choice made’ for the change to Petitioner’s status. …Respondents also do not show any consideration of the ‘serious reliance interests’ that they have engendered in Petitioner by granting him supervised release prior to their change in policy. … Because Respondents revoked Petitioner’s supervised release and detained him without any rational individualized fact-finding or consideration of the effects of altering their prior decisions, Respondents acted arbitrarily and capriciously in violation of the APA.
Respondents effectively admit to having failed to follow their own procedures in their attempt to remove Petitioner to a third country. In light of that troubling revelation, the Court is persuaded that Respondents did not engage in rational decision making regarding Petitioner’s case or the effects of their policy change on his interests before attempting to effectuate his third country removal. … Thus, Respondents acted arbitrarily and capriciously in attempting to remove Respondent to a third country without notice.
Respondents’ violation of the APA in their decision to revoke Respondent’s supervised release and their attempt to remove him to Mexico constitute adequate and independent grounds by which his confinement is unlawful. This Court also GRANTS Petitioner’s petition for writ of habeas corpus on this basis.” (citations omitted) (emphasis added).
65. Judge Indira Talwani (Obama appointee), Commonwealth of Massachusetts v. United States Department of Agriculture, 1:25-cv-13165 (D. Mass.)
Executive Action: Denial of federal grants
In a Nov. 12 order granting a temporary restraining order staying enforcement of USDA’s Nov. 8 letter asserting that States took “unauthorized” action regarding November SNAP funds, Judge Talwani found the agency’s position “untethered to the factual record” and arbitrary and capricious. The court wrote:
“USDA’s November 8 Letter asserting that States’ issuances of the full payment files were unauthorized fails to account for, or even acknowledge in much detail, the events immediately before the letter’s issuance. … Defendants, as their position is articulated in the November 8 Letter, would first have States ignore the D.R.I. District Court’s Temporary Restraining Order, even while those orders were not stayed. As noted, these orders directed Defendants to make the full SNAP benefits available to the States. States acted in reliance of these orders when they submitted payment files for full November benefits.
Further, USDA itself confused the record by issuing and not rescinding a notice on November 7, 2025, stating that FNS ‘is working towards implementing November 2025 full benefit issuances in compliance with the November 6, 2025 order’ and that ‘[l]ater today, FNS will complete the processes necessary to make funds available to support your subsequent transmittal of full issuance files to your EBT processor’ … (emphasis added). This statement provided no indication that Defendants were appealing and seeking a stay of the district court’s orders. Indeed, in retrospect, it appears that the statement was carefully crafted to feign compliance with the D.R.I. Temporary Restraining Order when the USDA intended to do no such thing.And, even after receiving an administrative stay on November 7, Defendants delayed a full day before issuing the November 8 Letter that departed from statements the agency itself made just the day before.
In light of this record, the court finds that USDA’s assertion—that the States took ‘unauthorized’ action when they were complying with a court order that had not yet been stayed and with the USDA’s own directive—untethered to the factual record. Accordingly, Plaintiffs are likely to success [sic] on the merits of their claim that the November 8 Letter is arbitrary and capricious agency action.” (citations omitted) (emphasis added).
66. Judge Jon S. Tigar (Obama appointee), Housing Authority of the County of San Diego v. Turner, 4:25-cv-08859 (N.D. Cal.)
Executive Action: Denial of federal grants
On Nov. 14, granting a preliminary injunction blocking the Department of Housing and Urban Development’s (HUD) newly imposed funding conditions on multiple grant programs administered to city and county public-housing agencies, Judge Tigar wrote:
“Plaintiffs do not argue that the agency’s reasoning was irrational or omitted relevant considerations. Rather, they argue that the agency erred by providing no reasoning at all to support the imposition of the challenged grant conditions. In a letter to grantees and stakeholders, HUD Secretary Turner explained that the challenged conditions were imposed to ‘effectively implement’ and ‘ensure . . . complian[ce]’ with the President’s executive orders. … But this is no explanation at all. … An agency cannot change position solely based on compliance with an EO without further explanation. …
The government’s implication is that an agency acts lawfully any time it orders its grantees to certify compliance with Executive Orders. As the discussion above makes clear, that isn’t true. And even if imposing grant conditions to certify compliance with Executive Orders were an unremarkable aspect of agency practice—which is not the Court’s conclusion—those agencies would still be required to explain themselves. … Defendants have failed in that task.
The challenged grant conditions are arbitrary and capricious.” (citations omitted) (emphasis added).
67. Judge Eric Komitee (Trump appointee), A.C.R. v. Noem 1:25-cv-03962 (E.D.N.Y)
This proposed class action challenges DHS’s termination of its 2022 deferred action program for young people in Special Immigrant Juvenile Status (SIJS-DA), which provided them with deportation protection and eligibility for work authorization while awaiting visas.
On Nov. 19, Judge Komitee granted partial preliminary relief and a § 705 stay of DHS’s rescission of the SIJS-DA program, holding that the plaintiffs are likely to succeed on their claim that the rescission was arbitrary and capricious where USCIS failed to consider serious reliance interests and reasonable alternatives, and relied instead on post hoc litigation rationales not found in the administrative record. The court wrote:
“USCIS failed to consider reliance interests and reasonably obvious alternatives here, likely rendering its decision to rescind SIJS-DA arbitrary and capricious. …
First, an agency must always consider serious reliance interests, even when it concludes an earlier policy was unlawful. …
While USCIS may ultimately conclude that ‘reliance interests in benefits that it views as unlawful are entitled to no or diminished weight,’ … it must still consider them. And it failed to consider reliance on SIJA-DA. …
Second, Plaintiffs have identified reliance interests that USCIS made no attempt to contend with. …
The government does not claim that it considered these – or any other – reliance interests. … It argues only that it did not have to. … In the government’s view, any reliance interests were per se unreasonable because SIJS-DA had only existed for three years, was temporary, and was subject to a change in executive priorities. … Once more, Regents forecloses this argument.
Furthermore, the government points to no part of the administrative record to support its argument about petitioners’ reliance interests. Nowhere in either of the USCIS memos does the agency say there are no serious reliance interests at stake. Indeed, the word ‘reliance’ never appears in the two USCIS documents. And a court ‘cannot affirm based on a post hoc litigation rationalization pressed by agency counsel.’ … USCIS’s failure to consider serious reliance interests was likely arbitrary and capricious.
USCIS’s omission to consider alternatives to rescinding the 2022 Policy Alert in its entirety was also likely arbitrary and capricious under Regents. …
‘[I]n rescinding a prior action, an agency cannot simply brand it illegal and move on.’ … Rather, it first must consider reliance interests and alternatives. … Because USCIS failed to do so, its rescission of SIJS-DA was likely arbitrary and capricious.” (citations omitted) (emphasis added).
68. Judge Katherine Polk Failla (Obama appointee), Doe v. Noem, 1:25-cv-08686 (S.D.N.Y.)
Executive Action: DHS Revocation of Temporary Protective Status (TPS)
This case involves a proposed class action challenge to the Department of Homeland Security’s (DHS) decision to terminate Syria’s Temporary Protected Status (TPS) designation on 60 days’ notice, alleging violations of the TPS statute, the Administrative Procedure Act, and the Fifth Amendment’s equal-protection guarantee.
On Nov. 19, Judge Failla granted in part the plaintiffs’ motion for a preliminary injunction and, pursuant to Section 705 of the APA, postponed DHS’s termination of TPS for Syrians (set to go into effect on Nov. 21) pending further order, reportedly finding the plaintiffs likely to succeed on their claims that, inter alia, the termination was arbitrary and capricious.
Delivering her reasoning from the bench, Judge Failla reportedly stated that plaintiffs had “presented a wealth of evidence” of impropriety and error surrounding the TPS terminations for Syria and other countries; criticized Secretary Kristi Noem for “taking a hatchet to the TPS system” rather than following statutory procedures; concluded that “this court cannot find the secretary engaged in a good faith and objective review of country conditions in Syria;” and observed that the Syria termination appeared part of a coordinated effort to end TPS designations, with “coordinated” rationales, “virtually identical” procedural errors, and terminations “of a piece with a stated policy to reduce immigrant populations” (emphasis added). “On this record, it confounds logic that as to a group of disparate countries with disparate bases of designation in different parts of the world, that in a few months, all of them could resolve troubles that were so severe as to warrant TPS designation in the first instance, and have them … immediately resolved, such that termination is appropriate for all of them,” Judge Failla reportedly said, adding, “And that is because that is not the case.”
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Table of Updates: Updates in the November 2025 Edition
This edition includes the following updates to the Presumption of Regularity report:
1. New Cases Added
Chapter 1 (Noncompliance with Court Orders):
- 21. Judge Sara L. Ellis (Obama appointee), Chicago Headline Club v. Noem, 1:25-cv-12173 (N.D. Ill.)
- 22. Magistrate Judge Sallie Kim, National TPS Alliance v. Noem, 3:25-cv-05687 (N.D. Cal.)
- 23. Judge Waverly D. Crenshaw, Jr. (Obama appointee), United States v. Abrego Garcia, 3:25-cr-00115, (M.D. Tenn.)
- 24. Chief Judge John J. McConnell, Jr. (Obama appointee), Rhode Island State Council of Churches v. Rollins, 1:25-cv-00569 (D.R.I.)
- 25. Judge Indira Talwani (Obama appointee), Commonwealth of Massachusetts v. United States Department of Agriculture, 1:25-cv-13165 (D. Mass.)
- 26. Judge Maame Ewusi-Mensah Frimpong (Biden appointee), Pedro Vasquez Perdomo v. Noem, 2:25-cv-05605 (C.D. Cal.)
Chapter 2 (Government Misinformation):
General
- 26. Judge Xavier Rodriguez (W. Bush appointee), United States v. Jaime Alberto Quintanilla-Chavez, 5:25-CR-388 (W.D. Tex.)
- 27. Judge Leo T. Sorokin (Obama appointee), Shinwari v. Hyde, 1:25-cv-12021 (D. Mass.)
- 28. Judge Julia E. Kobick (Biden appointee), Gomes v. Hyde, 1:25-cv-11571 (D. Mass.)
- 29. Judge Dale E. Ho (Biden appointee), Lopez Benitez v. Francis, 1:25-cv-05937 (S.D.N.Y.)
- 30. Judge Brandy R. McMillion (Biden appointee), Lopez-Campos v. Raycraft, 2:25-cv-12486 (E.D. Mich.)
- 31. Judge Brandy R. McMillion (Biden appointee), Santos Franco v. Raycraft, 2:25-cv-13188 (E.D. Mich.)
- 32. Judge Robert W. Gettleman (Clinton appointee), Moreno Gonzalez v. Noem, 1:25-cv-13323, (N.D. Ill.)
- 33. Chief Judge John J. McConnell, Jr. (Obama appointee), State of California v. United States Department of Transportation, 1:25-cv-00208 (D.R.I.)
- 34. Judge Sara Lee Ellis (Obama appointee), Chicago Headline Club v. Noem, 1:25-cv-12173 (N.D. Ill.)
- 35. Chief Judge John J. McConnell, Jr. (Obama appointee), Rhode Island State Council of Churches v. Rollins, 1:25-cv-00569 (D.R.I.)
- 36. Judge Indira Talwani (Obama appointee), Commonwealth of Massachusetts v. United States Department of Agriculture, 1:25-cv-13165 (D. Mass.)
- 37-a. Judge Cameron McGowan Currie (Clinton appointee), United States v. James Comey, 1:25-cr-00272 (E.D. Va.) and United States v. Letitia James, 2:25-cr-00122 (E.D. Va.)
- 37-b. Magistrate Judge William E. Fitzpatrick, United States v. James Comey, 1:25-cr-00272 (E.D. Va.)
Pretext and Retaliatory Motives
- 54. Judge Ana Reyes (Biden appointee), Talbott v. Trump, 1:25-cv-00240 (D.D.C.)
- 55. Magistrate Judge Sallie Kim, National TPS Alliance v. Noem, 3:25-cv-05687 (N.D. Cal.)
- 56. Judge Ann Aiken (Clinton appointee), State of Washington v. Health and Human Services, 6:25-cv-01748 (D. Or.)
- 57. Judge Jamal N. Whitehead (Biden appointee), QueerDoc, PLLC v. U.S. Department of Justice, 2:25-mc-00042 (W.D. Wash.)
- 58. Judge Susan Illston (Clinton appointee), American Federation of Government Employees, AFL-CIO v. Trump, 3:25-cv-03698 (N.D. Cal.) and American Federation of Government Employees, AFL CIO v. United States Office of Management and Budget, 3:25-cv-08302 (N.D. Cal.) (related cases)
- 59. Chief Judge John J. McConnell, Jr. (Obama appointee), Rhode Island State Council of Churches v. Rollins, 1:25-cv-00569 (D.R.I.)
- 60-(6). Judge Kymberly K. Evanson (Biden appointee), E.A. T.-B. v. Wamsley, 2:25-cv-01192 (W.D. Wash.)
Chapter 3 (Arbitrary and Capricious):
- 43. Judge Trina L. Thompson, National TPS Alliance v. Noem, 3:25-cv-05687 (N.D. Cal.)
- 59. Judge Ann Aiken (Clinton appointee), State of Washington v. Health and Human Services, 6:25-cv-01748 (D. Or.)
- 60. Judge Kymberly K. Evanson (Biden appointee), State of Washington v. United States Department of Education, 2:25-cv-01228 (W.D. Wash.)
- 61. Judge Susan Illston (Clinton appointee), American Federation of Government Employees, AFL-CIO v. Trump, 3:25-cv-03698 (N.D. Cal.) and American Federation of Government Employees, AFL CIO v. United States Office of Management and Budget, 3:25-cv-08302 (N.D. Cal.) (related cases)
- 62. Chief Judge John J. McConnell, Jr. (Obama appointee), Rhode Island State Council of Churches v. Rollins, 1:25-cv-00569 (D.R.I.)
- 63. Judge Lewis A. Kaplan (Clinton appointee), State of New York v. Noem, 1:25-cv-08106 (S.D.N.Y.)
- 64. Judge James E. Simmons, Jr. (Biden appointee), Rios v. Noem, 3:25-cv-02866 (S.D. Cal.)
- 65. Judge Indira Talwani (Obama appointee), Commonwealth of Massachusetts v. United States Department of Agriculture, 1:25-cv-13165 (D. Mass.)
- 66. Judge Jon S. Tigar (Obama appointee), Housing Authority of the County of San Diego v. Turner, 4:25-cv-08859 (N.D. Cal.)
- 67. Judge Eric Komitee (Trump appointee), A.C.R. v. Noem 1:25-cv-03962 (E.D.N.Y)
- 68. Judge Katherine Polk Failla (Obama appointee), Doe v. Noem, 1:25-cv-08686 (S.D.N.Y.)
2. Cases Removed Since Last Update
Chapter 2 (Government Misinformation):
- 9. (in Oct. 15 update): Judge Paula Xinis (Obama appointee), Abrego Garcia v. Noem, 8:25-cv-00951 (D. Md.)
Chapter 3 (Arbitrary and Capricious):
- 16. (in Oct. 15 update): Judge Julia E. Kobick (Biden appointee), Orr v. Trump, 1:25-cv-10313 (D. Mass.)
3. New Sub-Entries in Existing Cases
Chapter 2 (Government Misinformation):
- 1-b. Chief Judge James E. Boasberg (Bush appointee; Obama appointee), J.G.G. v. Trump, 1:25-cv-00766 (D.D.C.)
- 8-b. Judge Susan Illston (Clinton appointee), American Federation of Government Employees, AFL-CIO v. Trump, 3:25-cv-03698 (N.D. Cal.) and American Federation of Government Employees, AFL CIO v. United States Office of Management and Budget, 3:25-cv-08302 (N.D. Cal.) (related cases)
- 11-b. Judge Ana Reyes (Biden appointee), Talbott v. Trump, 1:25-cv-00240 (D.D.C.)
- 24-b. Judge Karin J. Immergut (Trump appointee), State of Oregon v. Trump, 3:25-cv-01756 (D. Or.)
4. Expanded or Updated Material in Existing Case Entries
Chapter 1 (Noncompliance with Court Orders):
- 1. Chief Judge James E. Boasberg (Bush appointee; Obama appointee), J.G.G. v. Trump, 1:25-cv-00766 (D.D.C.)
- 17. Judge Karin J. Immergut (Trump appointee), State of Oregon v. Trump, 3:25-cv-01756 (D. Or.)
- 19. Judge Jeffrey I. Cummings (Biden appointee), Castanon Nava v. Department of Homeland Security, 1:18-cv-03757 (N.D. Ill.)
Chapter 2 (Government Misinformation):
- 11-a. Judge Ana Reyes (Biden appointee), Talbott v. Trump, 1:25-cv-00240 (D.D.C.)
- 18. Judge Colleen Kollar-Kotelly (Clinton appointee), League of United Latin American Citizens v. Executive Office of The President, 1:25-cv-00946 (D.D.C.), Democratic National Committee v. Trump, 1:25-cv-00952 (D.D.C.), and League of Women Voters Education Fund v. Trump, 1:25-cv-00955 (D.D.C.) (consolidated cases)
- 60-(5). Judge Jerry W. Blackwell (Biden appointee) Mohammed H. v. Trump, 0:25-cv-01576 (D. Minn.)
5. Status and Other Updates
Chapter 2 (Government Misinformation):
- 38. Judge Dale Ho (Biden appointee), United States v. Adams, 1:24-cr-00556 (S.D.N.Y.) – Previously in Chapter 2.A (Distrust – General); now in Chapter 2.B (Distrust – Pretext)
