from the but-too-slowly dept
It has been more than six months since Trump took office and kicked off his Musk-led rampage through the federal government. And more than six months that everyone has been turning to the courts to stop the DOGE destruction. These litigation efforts have led to some wins, although too many of them have been short-lived as either SCOTUS or even the motions panels at the appellate courts have all too often undone the protective injunctions that litigants finally managed to extract—albeit increasingly, as district courts’ hesitancy to restrain federal executive power has given way to the growing recognition of how much of that supposed executive power has been exercised illegitimately and harmfully.
Such a realization is at the heart of this decision discussed here, from a case that has been discussed before, Does 1-26 v. Musk, where an initial win of an injunction against Musk and DOGE’s ruination of the USAID agency was soon evaporated by the Fourth Circuit. The big reason why the Fourth Circuit overturned the injunction was due to an issue that has kept coming up in these challenges: ratification. Because while it’s bad enough for Musk and DOGE to tear through the government, despite no lawful authority to do anything, there is a separate problem when those with lawful authority follow along after them to do the same things. Even in this case, one of the several challenging the illicit destruction of USAID as a functioning agency despite all statutory language prohibiting anyone but Congress from doing anything to interfere with its function, we’ve seen the effects of this sort of ratification, as Musk and DOGE’s super-duper illegal RIF notices to staff were later reissued only super illegally by non-DOGE officials with actual authority when it comes to running the agency. Because even these officials’ authority is still limited; they cannot do something that the law does not allow (in this case: winding down the agency that they are supposed to run). So following the loss at the Fourth Circuit the plaintiffs amended their lawsuit to name the non-DOGE officials too in order to give the court jurisdiction over their participation in the overall wrongdoing.
And in this new decision the court gave the case the green light to continue, except without Trump himself as a named defendant.
Here, Plaintiffs’ request for declaratory relief against President Trump involves matters that are not as clearly ministerial. See id.; New Mexico, 2025 WL 1502747, at *19 (dismissing the President as a defendant from a case seeking declaratory relief where the duties implicated by the relief were “highly discretionary”). Moreover, courts considering whether to issue injunctive or declaratory relief against a President have recognized that the constitutional concerns associated with doing so “can be successfully bypassed” where the plaintiff’s injury “can be rectified by injunctive relief against” subordinate Executive Branch officials. See Swan v. Clinton, 100 F.3d 973, 976 & n.1, 978-79 (D.C. Cir. 1996) (recognizing that “similar considerations” apply to requests to obtain injunctive or declaratory relief against a President); NTEU, 492 F.2d at 606 (noting that “if it were possible” for the plaintiff to “enforce its rights by naming a defendant additional to or in substitution of the President,” the court “would exercise its discretion not to answer the question of whether the President is subject to mandamus by a federal court”). Where, as here, Plaintiffs’ requests for relief will proceed as to other Executive Branch officials with authority over the relevant issues in this case, the Court will dismiss the claims against President Trump. [p.47-48]
But everyone else named—Musk, Amy Gleason, Marco Rubio, and more—are all still on the hook, with the court rejecting all the arguments raised by the government for why the case should have been dismissed entirely. The most salient relate to standing, statutory preclusion, failure to state a claim, and claim splitting.
On standing, the court found that the plaintiffs had adequately pled that they had in fact been injured [p.32-34], that this injury was “traceable” to the defendants [p.34-37], and that it was redressable by holding the remaining defendants liable.
Here, the requested relief includes an injunction setting aside prior actions and barring further actions by Defendants to “modify, reorganize, or eliminate USAID,” as well as an injunction setting aside actions taken at USAID by Musk and DOGE personnel and barring them from “performing their significant and wide-ranging duties at USAID.” SAC ¶ 141. Even without a request for specific relief relating to the placements on administrative leave and the RIFs, these forms of relief could facilitate redress of Plaintiffs’ injuries because an order halting the elimination of USAID as an agency pursuant to either the Separation of Powers claim or the Appointments Clause claim would certainly “remov[e]” a significant “obstacle” to Plaintiffs’ regaining some form of employment at USAID or other relief. Sierra Club, 899 F.3d at 285. In addition, as to the Appointments Clause claim, where Plaintiffs have alleged that Musk directed the shutdown of USAID, an order undoing his actions and barring additional actions by Musk and DOGE at USAID would similarly contribute to providing Plaintiffs with relief by removing a force that has driven forward the process that has caused or will imminently cause Plaintiffs’ loss of employment. Accordingly, accepting the allegations as true and construing them in the light most favorable to Plaintiffs, the Court concludes that Plaintiffs have satisfied all three requirements to establish standing at this stage of the case. [p.37-38]
On “failure to state a claim,” the court found the Appointments Clause and Separation of Powers claims that every DOGE action ends up implicating one way or another had been adequately pled in a way that the court could still provide relief, here through a declaratory judgment or another injunction. With respect to the Appointments Clause claim, the court made the point in particular that just because so many of the problematic actions had already happened did not make the sought after relief moot (“[W]here that episode occurred only a few months ago and there is no reason to conclude that DOGE has ceased all activity at USAID, it is premature to conclude that there is no basis. or need for injunctive or declaratory relief relating to this claim.” [p.42]). And as for Separation of Powers, that the agency has effectively already been shut down, despite Congress never authorizing such a fate, suggests such a claim remained viable.
The Second Amended Complaint contains allegations that substantially replicate the facts adduced in Does I to support the conclusion that “USAID has been effectively eliminated,” id. at 671; compare SAC TT 65, 74-75, 83-88,93-99, 102-17, with Does I, 771 F. Supp. 3d at 669-71, but also includes additional, more concrete allegations demonstrating that Defendants are acting to “eliminate[]” “substantially all non-statutory positions at USAID,” “decommission[]” USAID assets, and “wind-down” the agency’s independent operations, as described in the Lewin Memorandum and the Congressional Notification Letter, SAC ¶ 120. Accordingly, where the Court previously concluded that Plaintiffs were likely to succeed on the merits of their Separation of Powers claim in Does I, see 771 F. Supp. 3d at 678, and where the Second Amended Complaint contains even more allegations about Defendants’ course of conduct to eliminate USAID outright than were available at that time, the Court finds that Plaintiffs have stated a plausible Separation of Powers claim. See Does 1, 771 F. Supp. 3d at 678. Cf. Nat’l Treasury Emps. Union v. Vought, 774 F. Supp. 3d 1, 57-58 (D.D.C. 2025) (finding that the Executive Branch’s actions to shut down of the Consumer Finance Protection Bureau likely violated the Separation of Powers), stay granted in part, No. 25-5901, 2025 WL 1721068, at *1 (D.C. Cir. Apr. 11, 2025). [p.43-44]
Perhaps more interestingly the court also rejected the “statutory preclusion” arguments, or, put another way, the arguments that the plaintiffs’ claims are just employment disputes that have to be brought before specialized agencies tasked with adjudicating employment disputes for federal workers. Because the plaintiffs here were largely USAID staff being wrongfully terminated, the government argued that, per statute, courts could not hear the complaints.
We saw the government make similar arguments before, especially in the case brought by the union of foreign service officers in the D.C. district court, AFSA v. Trump. This case has unfortunately now been dismissed for lack of standing and is thus on appeal, but earlier this year the court there refused to enjoin the agency firings. But that was then, and this is now, found this court in this case. It observed that the harm being considered by that earlier court—loss of employment—was just financial in its nature, and thus less “irreparable,” since “the agency [was] still standing.” But since that ruling, things have changed, and the potential harm to the plaintiffs here is much more weighty. Because, even if before it could be presumed that illegally-terminated employees might still have a job to go back to at the agency if their claims were redressed, such is not the case now when there is about to be no more agency at all.
Defendants’ citation of American Foreign Service Association v. Trump (“AFSA”), 768 F. Supp. 3d 6 (D.D.C. 2025), does not alter the Court’s conclusion. In AFSA, in denying a motion for a preliminary injunction, the court found that it was likely that the CSRA precluded it from exercising jurisdiction over a Separation of Powers challenge to the dismantling of USAID brought by two unions representing USAID employees. Id. at 11, 14-15, 21. In so ruling, however, the court noted that even though “in the long run,” the unions’ harms could flow from “the alleged unlawful dismantling of USAID,” at that time, “the agency [was] still standing, and so” the unions’ alleged harms based on which they sought injunctive relief related only to the changes in their members’ employment conditions at that early stage of the case, such as placement on administrative leave and requirements to return to the United States on an expedited basis, which were “largely financial” in nature. Id. at 20. Since that time, however, through the Lewin Memorandum and the Congressional Notification Letter, Defendants have confirmed their plan imminently to abolish USAID as an independent agency. Thus, the present case differs in that it relates not to employees’ specific employment conditions, as was the case at the early stage of AFSA, but to the abolition of an entire federal agency. [p.19-20]
Ultimately the court here found that the plaintiffs would be in an impossible position if the district courts couldn’t hear their claims and they had to appeal to these other agencies instead, en masse, because they were set up to handle only routine matters of federal employment, like with respect to issues with seniority. They were not set up to address the wholesale firing of an entire agency’s worth of personnel!
Nevertheless, regardless of whether the claims are subject to the CSRA, the Court finds that the CSRA does not provide for meaningful judicial review of Plaintiffs’ claims. Specifically, as alleged in the Second Amended Complaint, Plaintiffs’ claims, and their injuries, flow not from any specific employment action, but from the decision to dismantle and abolish USAID entirely. Channeling the claims of the Civil Service Employee Plaintiffs to the MSPB would foreclose meaningful judicial review because even if they were able to prevail in the administrative proceedings as to any particular employment action, such as by securing reinstatement to a USAID position, that relief would be meaningless because if the dismantling and abolition of USAID remain unaddressed, the Civil Service Employee Plaintiffs would have no workplace to which to return. [p.15]
And adjudicating the Constitutional issues that these terminations implicated was not part of their expertise.
Plaintiffs’ claims fall outside the MSPB’s expertise. The MSPB’s expertise largely consists of addressing adverse employment actions and prohibited personnel practices that violate the merit system principles set forth in 5 U.S.C. § 2301(b). See 5 U.S.C. §§ 7513(d), 1214(b)(4)(A); N4/J, 139 F.4th at 313. As discussed above, however, Plaintiffs’ claims do not directly or indirectly involve the application of such principles and instead assert structural constitutional challenges grounded in the principle of the Sepration of Powers. The Supreme Court has recognized in the context of other administrative review schemes that “agency adjudications are generally ill suited to address structural constitutional challenges.” Axon, 143 S. Ct. at 905 (quoting Carr v. Saul, 141 S. Ct. 1352, 1360 (2021)). In Axon, where the plaintiffs brought Separation of Powers challenges to actions by certain federal agencies’ administrative law judges (“ALJs”) because (1) the ALJs were unconstitutionally insulated from the president’s supervision; and (2) combining prosecutorial and adjudicatory functions in a single agency was unconstitutional, the Court found that the claims were outside of the relevant agencies’ expertise because they raised questions of constitutional law that were “detached from `considerations of agency policy’ and “distant” from the agency’s “competence and expertise,” as the agency “knows . . . nothing special about the separation of powers.” Axon, 143 S. Ct. at 897, 905 (quoting Free Enter. Fund, 561 U.S. at 491). [p.18-19]
Furthermore, the employment review agencies themselves have also been gutted by DOGE firings, and it did not sit well with the court that the same illicit power that wrongfully fired federal workers could now effectively render them powerless to seek redress of it.
As to the first step of the test, in NAIJ, the Fourth Circuit held that although the Supreme Court “has recognized that the CSRA, when functioning as Congress intended, was designed to strip district courts of jurisdiction,” that conclusion may no longer be true because recent events, including President Trump’s removal of the Special Counsel and of two members of the MSPB such that it lacks a quorum, “raise serious questions as to whether the CSRA’s adjudicatory scheme continues to function as intended.” NAIJ, 139 F.4th at 304-05. Based on this conclusion, the Fourth Circuit remanded that case to the district court “to conduct a factual inquiry whether the CSRA continues to provide a functional adjudicatory scheme,” and, if warranted, “a new examination of Congressional intent” as to the CSRA in light of these recent events. Id. at 308. Where the Fourth Circuit’s decision in NAIJ was released after briefing on the Motion concluded, and where the Court finds, as discussed below, that the Civil Service Employee Plaintiffs’ claims do not meet the second step of the Thunder Basin test, the Court declines to make a determination on whether the CSRA meets the first step of the Thunder Basin test. See Free Enter. Fund, 561 U.S. at 489 (noting that the Supreme Court presumes “that Congress does not intend to limit jurisdiction” if the three Thunder Basin factors at step two of the inquiry weigh in favor of that result). [p.13]
While it is a big deal for this court to recognize that the statutory scheme is inapt for the types of harms at issue here, it is not the first to do so, and it cites another case that did.
In a recent opinion, the United States Court of Appeals for the Ninth Circuit held that the MSPB could not provide meaningful judicial review of statutory and Separation of Powers challenges to large-scale RIFs across multiple federal agencies because even if an individual plaintiff could pursue an individual claim before the MSPB and appeal to the Federal Circuit, such a procedure would not provide meaningful judicial review because the alleged injury was not from the particular employment action, but “from subjection to [unlawful executive] authority” in violation of the Constitution. Am. Fed ‘n of Gov’t Emps. v. Trump (“AFGE”), 139 F.4th 1020, 15 Case 8:25-cv-00462-TDC Document 150 Filed 08/13/25 Page 16 of 48 .1028, 1032 (9th Cir. 2025) (quoting Axon, 143 S. Ct. at 906), stay granted on other grounds, Trump v. Am. Fed’n of Gov’t Emps., 145 S. Ct. 2635, 2635 (2025). Here, Plaintiffs notably seek no damages and do not even specifically request injunctive relief to allow them to retain or recover their positions. Even to the extent that Plaintiffs’ general request that the Court “set aside any actions taken by Defendants” to eliminate USAID could be construed as including such relief, SAC ¶ 141a, as in AFGE, “such a path to the federal courts would be meaningless where . . . entire offices and functions are being eliminated from federal agencies,’ such that a successful plaintiff “would return to an empty agency with no infrastructure to support a resumption of their work.” AFGE, 139 F.4th at 1032 (quoting Am. Fed’n of Gov’t Emps. v. Trump, No. 25-cv-03698-SI, 2025 WL 1482511, at *14 (N.D. Cal. May 22, 2025)); see Elev8 Balt., Inc. v. Corp. for Nat’l & Cmty. Serv., No. MJM-25-1458, 2025 WL 1865971, at *1, *17 (D. Md. July 7, 2025) (finding that the CSRA could not provide a union representing federal employees meaningful judicial review of its Separation of Powers challenges to the dismantling of AmeriCorps); cf. New York v. Kennedy, No. 25-cv-196-MRD-PAS, 2025 WL 1803260, at *1, *9 (D.R.I. July 1, 2025) (finding that the CSRA could not provide meaningful judicial review of states’ constitutional and statutory challenges to the large-scale terminations of employees at and reorganization of the United States Department of Health and Human Services, because there was “little to no value” in “requiring employees to bring individual claims about their employment status to MSPB” because even “successful Plaintiffs ‘would return to an empty agency’ (quoting AFGE, 139 F.4th at 1032)). [p.15-16]
Meanwhile, the existence of this other case in D.C. that had been trying to get USAID employees un-fired gets to the other interesting defense raised by the government in support of its motion to dismiss the case: claim-splitting. In this argument the government was charging that because there are multiple cases addressing very similar facts, it looks like plaintiffs may be getting multiple bites at the apple to try to get the judicial result they want, which is not something individual plaintiffs are allowed to do. But the court here noted that the plaintiffs aren’t actually the same in both cases. While there may be overlap in the classes the plaintiffs represent, the actual litigants animating and directing these cases are different and not in privity with each other.
Here, Defendants have not provided evidence that Plaintiffs are in privity with the organizations asserting the allegedly related claims in these other lawsuits. Indeed, they have not even demonstrated that Plaintiffs are all members of one of those organizations. The Court therefore declines to dismiss the Second Amended Complaint on this basis. Cf. Cooper v. Harris, 581 .U.S. 285, 297-98 (2017) (declining to dismiss claims brought by individual plaintiffs as barred by res judicata where the party asserting that defense “never satisfied the District Court that” the individual plaintiffs were members of an organization that had brought similar claims in a separate lawsuit). [p.39]
And such is the consequence an abusive government is likely to suffer, that it might find itself having to defend itself in multiple courts on similar questions, because had it taken aim at fewer people then there would be fewer people to take issue with it. And in no case should the government be able to benefit here from having attacked the rights of an agency’s entire workforce where, because it had victimized so many, it would now be impossible for any to seek redress.
In fact, there have had to be multiple cases, especially with respect to the illegal destruction of USAID, which suffered especially from being the agency Musk and DOGE “put through the woodchipper” first, as he unlawfully and unconstitutionally canceled contracts, laid off staff, and took away agency assets. Which meant that all the legal challenges to stop Musk and DOGE with respect to USAID also happened first, hitting the courts as matters of first impression before they had a chance to get their jurisprudential arms around the full extent of executive power abuse they were dealing with here, and before litigants figured out how to bring their challenges most effectively.
Because if everyone had to do it over again, knowing what we know now, presumably USAID would not now be standing on the precipice of being all but lost as an agency come September 2, when the last wave of RIFs kicks in to layoff the last of its now skeleton workforce from this once robust and valuable agency Congress established, and never closed.
Filed Under: doge, donald trump, elon musk, marco rubio, usaid
