Judge Nichols' Order Blocking Trump From Gutting USAID

It's been a minute since I wrote about a court order, but this one is really good

If you’ve listened to the Jack podcast for a while, you’ll remember Trump-appointed Carl Nichols as the lone judge who interpreted 1512(c)(2) as needing to be about a document, record, or other object. The appeals court overturned his ruling but he teed up the oligarchs on the Supreme Court to gut the statute on appeal. Jack Smith saw it coming a mile away and wrote his indictment on the narrower interpretation of the statute, but none of that mattered after SCOTUS crowned Trump king and he was re-elected by a handful of votes in a handful of states. But I digress.

Tonight, Judge Nichols blocked Trump’s attempt to put 2,200 USAID employees on administrative leave. DoJ lawyers argued (and this had to be embarrassing for them) that because Trump decided USAID was a fraud, he didn’t need to justify putting 2,200 employees on paid leave. And when asked by the judge what these specific employees did to warrant an immediate adverse personnel action, the DoJ lawyer said that Secretary Rubio shouldn’t have to provide that information.

Judge Nichols said he was going to issue a narrow TRO (temporary restraining order), and the official order hit the docket tonight.

To obtain a TRO, “the moving party must show: (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the [TRO] were not granted, (3) that [the TRO] would not substantially injure other interested parties, and (4) that the public interest would be furthered” by the TRO.

…at the TRO hearing, it became clear that plaintiffs’ allegations of irreparable injury flow principally from three government actions: (1) the placement of USAID employees on administrative leave; (2) the expedited evacuation of USAID employees from their host countries; and (3) Secretary Rubio’s January 24, 2025 order “paus[ing] all new obligations of funding . . . for foreign assistance programs funded by or through . . . USAID.”

The government reported that 500 USAID employees have already been placed on administrative leave and that, absent a TRO, 2,200 additional USAID employees would be placed on administrative leave by midnight tonight. The government also reported that employees would still be paid while on administrative leave. Plaintiffs, meanwhile, contended—as they had in their complaint and motion—that USAID employees placed on administrative leave, including USAID employees stationed abroad, lack access to the agency’s email, payment, and “internal security warning/alert systems.” As plaintiffs’ counsel put it at the hearing, overseas USAID employees placed on administrative leave exist within an “informational vacuum” with respect to possible threats to their safety.

Taking the TRO factors somewhat out of order and beginning with irreparable injury, the Court finds that plaintiffs have adequately demonstrated that their members are facing irreparable injury from their placement on administrative leave, and that more members would face such injury if they were placed on administrative leave tonight. Many USAID personnel work in “highrisk environments where access to security resources is critical.” No future lawsuit could undo the physical harm that might result if USAID employees are not informed of imminent security threats occurring in the countries to which they have relocated in the course of their service to the United States. The government argued at the TRO hearing that placing employees on paid administrative leave is a garden-variety personnel action unworthy of court intervention. But administrative leave in Syria is not the same as administrative leave in Bethesda: simply being paid cannot change that fact.

Judge Nichols then talks about the merits of the case and balancing equities:

Turning to the likelihood of success on the merits, plaintiffs have asserted at least a colorable argument that placing almost 3,000 USAID employees on administrative leave would violate the Further Consolidated Appropriations Act of 2024, which requires the State Department and USAID to consult with Congress before, among other things, “reorganiz[ing]” or “redesign[ing]” USAID, including by “downsiz[ing]” it.

The last TRO factor requires the Court to balance the equities. When the Court asked the government at the TRO hearing what harm would befall the government if it could not immediately place on administrative leave the more than 2000 employees in question, it had no response— beyond asserting without any record support that USAID writ large was possibly engaging in “corruption and fraud.” The Court thus has no difficulty concluding that the balance of the hardships favors the plaintiffs. A TRO as to this issue is warranted.

The next part is where we learn a lot about how peoples lives are inextricably linked to their locations, and why giving them 30 days notice to return to the US is untenable.

Specifically, whereas USAID’s “usual process” provides foreign service officers with six to nine months’ notice before an international move, plaintiffs allege that USAID has now issued a “mandatory recall notice” that would require more than 1400 foreign service officers to repatriate within 30 days.

Plaintiffs have demonstrated that this action, too, risks inflicting irreparable harm on their members. Recalling employees on such short notice disrupts long-settled expectations and makes it nearly impossible for evacuated employees to adequately plan for their return to the United States. For instance, one of plaintiffs’ members attests that, if he is recalled from his foreign post, he will be forced to “[u]proot” his two special-needs-children from school in the middle of the year, “set[ting] back their development with possible lifelong implications.”

Other of plaintiffs’ members tell similar stories, explaining that the abrupt recall would separate their families, interrupt their medical care, and possibly force them to “be back in the United States homeless.”

Even if a future lawsuit could recoup any financial harms stemming from the expedited evacuations—like the cost of breaking a lease or of abandoning property that could not be sold prior to the move—it surely could not recoup damage done to educational progress, physical safety, and family relations.

Judge Nichols concludes by blocking (temporarily) putting 2,200 USAID employees on administrative leave and ordering the 500 already put on leave to be reinstated:

For the foregoing reasons, the Court will grant in part plaintiffs’ Motion for Temporary Restraining Order, ECF No. 9. The Court will enter a TRO as to the administrative leave and expedited evacuation issues until February 14, 2025 at 11:59 PM.

All USAID employees currently on administrative leave shall be reinstated until that date, and shall be given complete access to email, payment, and security notification systems until that date, and no additional employees shall be placed on administrative leave before that date. No USAID employees shall be evacuated from their host countries before February 14, 2025 at 11:59 PM.

The Court will also hold an in-person preliminary injunction hearing on February 12, 2025 at 11:00 AM in Courtroom 17. The government shall submit a brief in opposition to Plaintiffs’ Motion, on or before 5:00 PM on February 10, 2025, and plaintiffs shall submit a reply brief on or before 5:00 PM on February 11, 2025.

You can read the full filing here. Forgive any typos - it’s late and I’m on vacation :D

~AG

Kevin Dietsch | Credit: Getty Images